here regulating intrastate commerce and the power to do so is not conferred on the Federal Government under the Constitution. The following observations on the constitutional problems involved here will establish that this bill is not violative of the Constitution. The subject of regulation contemplated by the bill is conduct which is either conduct in interstate commerce or so directly burdens, obstructs, or affects interstate commerce as to be within the power of Congress to remove the attendant burden upon interstate commerce.

No one can argue that conducting the business of operating a coal mine or that the labor of a miner digging coal is interstate commerce. The Supreme Court has so indicated (Delaware, Lackawanna & Western Ry. Co. v. Yurkonis, 238 U. S. 439 (1915)). But the mere fact that conduct is "intrastate" does not remove it from the field of Federal power.

Trading on the Chicago Board of Trade is not interstate commerce. Yet such trading was subjected to Federal regulation by the Grain Futures Act, and such act was upheld by the Supreme Court in Chicago Board of Trade v. Olsen (262 U. S. 1 (1923)).

Meat packing is not interstate commerce, and yet meat packing was subjected to Federal regulation by the Packers and Stockyards Act, and such act was upheld by the Supreme Court in Stafford v. Wallace (258 U. S. 495 (1922)).

The business of buying and selling livestock on a commission basis at a stockyard is not interstate commerce, and yet Congress has fixed the commission charges in such business, and such regulation was upheld by the Supreme Court in Tagg Brothers & Moorhead v. United States (280 U. S. 420 (1930)).

Transportation from one point in a State to another point in the same State is not interstate commerce, and yet Congress has subjected intrastate charges to Federal regulation to the extent necessary to prevent injurious discrimination against interstate commerce, and such regulation was upheld by the Supreme Court in Houston, East & West Texas Railway Co. v. United States (234 U. S. 342 (1913)) (popularly known as the Shreveport case).

A conspiracy to restrain interstate commerce by means of a strike is not interstate commerce, and yet such conspiracies have been subjected to Federal regulation under the antitrust laws and such regulation has been upheld by the Supreme Court in Loewe v. Lawlor (208 U. S. 274 (1908)) (popularly known as the Danbury Hatter's case); Duplex Printing Co. v. Deering (254 U. S. 443 (1921)); Bedford Cut Stone Co. v. Stonecutters Association (274 U. S. 37 (1927)); and Local 167 v. United States (291 U. S. 293 (1934)).

Conspiracies to restrain interstate commerce in bituminous coal by means of a strike are not unknown to the Supreme Court, and regulation of such conspiracies by Congress has been uniformly upheld. (Coronado Coal Co. v. United Mine Workers, 259 U. S. 344 (1922), 268 U. S. 295 (1925); Red Jacket Coal Co. v. United Mine Workers, 18 Federal (2d) 839 (C. C. A. West Virginia 1927); and Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229 (1917).)

The constitutional justification for these regulations by Congress of intrastate commerce is found in their effect on interstate commerce. Whatever the source of the restraint or burden on interstate commerce, Congress has the power by appropriate legislation to prevent that restraint. It is the "effect upon interstate commerce" not "the

source of the injury" which is "the criterion of Congressional power." (Second Employers' Liability cases, 223 U. S. 1 (1912).)

As stated by Chief Justice Taft in Stafford v. Wallace (258 U. S. 495 (1922), at 518 and 520):

The application of the commerce clause of the Constitution in the Swift case was the result of the natural development of interstate commerce under modern conditions. It was the inevitable recognition of the great central fact that such streams of commerce from one part of the country to another which are ever flowing are in their very essence the commerce among the States and with foreign nations which historically it was one of the chief_purposes of the Constitution to bring under national protection and control. This Court declined to defeat this purpose in respect of such a stream and take it out of complete national regulation by a nice and technical inquiry into the noninterstate character of some of its necessary incidents and facilities when considered along and without reference to their association with the movement of which they were an essential but subordinate part.

The principles of the Swift case have become a fixed rule of this Court in the construction and application of the commerce clause.

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The reasonable fear by Congress that such acts, usually lawful, and affecting only intrastate commerce when considered alone, will probably and more or less constantly be used in conspiracies against interstate commerce or constitute a direct and undue burden on it, expressed in this remedial legislation, serves the same purpose as the intent charged in the Swift indictment to bring acts of a similar character into the current of interstate commerce for Federal restraint. Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it.

It is clear that in the conduct of the soft-coal industry there exist burdens on interstate commerce resulting from activity which is intrastate. No one can assert that the facts shown in the hearings are not sufficiently demonstrative of the existence of the burden. Nor can it be asserted that the effect of these burdens is not directly inhibitory of intrastate commerce.

There is abundant judicial recognition that labor conditions and industrial disputes at the mines may directly affect the interstate commerce of coal. The mine workers have been repeatedly enjoined under the Sherman Antitrust Act from strike activities, not because they were interfering with the transportation of coal but because their interference with mining, or production, necessarily interferes with interstate commerce of coal. In the celebrated Red Jacket decision (18 Fed. 2d 840 (C. C. A. W. Va. 1927)), which the Supreme Court declined to review, the Court, at page 845, said:

Interference with the production of these mines as contemplated by defendants would necessarily interfere with the interstate commerce in coal to a substantial degree. Moreover, it is perfectly clear that the purpose of defendants in interfering with production was to stop the shipment in interstate commerce. It was only as the coal entered into interstate commerce that it became a factor in the price and affected defendants in their negotiations with the union operators. And in time of strike, it was only as it moved in interstate commerce that it relieved the coal scarcity and interfered with the strike.

To the extent, then, that Congress does by negative action prevent the consummation of acts which burden or are intended to burden interstate commerce before their effect can be felt upon interstate commerce it is apparent that Congress can legislate, and the cases support such legislation.

But the question then arises, Has Congress the power, by affirmative action, by providing what the industry shall do, to regulate such intrastate conduct? Stated briefly, can it be said that when Congress passed the antitrust laws it exhausted its power to act with reference to restraints on interstate commerce? The answer to this question is that it did not.

If Congress can, by its antitrust laws as the courts construe them, reach its restraining hand into these industrial disputes at the mine, it must have power to deal with the practices and conditions that make these disputes inevitable. The Red Jacket decision recognizes the interstate competitive relation of wages to the commerce in coal and bases its imputation of intent against the miners upon that relationship. If Congress may regulate at all, as the courts hold it has done in the antitrust acts, with reference to the labor struggle at the mines, because of the impact that struggle has on commerce in coal, it must have power to deal with the conditions which make the struggle inevitable.

That Congress has such affirmative power is asserted by Mr. Chief Justice Taft. Speaking for the Court in the case of Stafford v. Wallace (258 U. S. 495 (1922) at 520) he states:

If Congress could provide for punishment or restraint of such conspiracies after their formation through the antitrust law as in the Swift case, certainly it may provide regulation to prevent their formation.

That this doctrine is applicable in other fields of regulation, and is directly applicable in the coal industry, is set forth by Mr. Chief Justice Taft in the first Cororando case (259 U. S. 344 (1922)). In his opinion in that case, at page 408, he states:

Obstruction to coal mining is not a direct obstruction to interstate commerce in coal, although it, of course, may affect it by reducing the amount of coal to be carried in that commerce. We have had occasion to consider the principles governing the validity of Congressional restraint of such indirect obstructions to interstate commerce in Swift & Co. v. United States (196 U. S. 375); United States v. Patten (226 U. S. 525); United States v. Ferger (250 U. S. 199); Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy Railroad Co. (257 U. S. 563); and Stafford v. Wallace (258 U. S. 459).

It is clear from these cases that if Congress deems certain recurring practices, though not really part of interstate commerce, likely to obstruct, restrain, or burden it, it has the power to subject them to national supervision and restraint.

Congress has already subjected to affirmative regulation by it industries that theretofore had been unregulated, industries the activities of which had not been enjoined as burdens on interstate commerce under the antitrust laws. When Congress finds and declares that an industry is subject to its power because the conduct of that industry is such that interstate commerce is restrained by it, if the subject is something of national concern, and if its finding cannot be said to be unreasonable and arbitrary, the Supreme Court has upheld affirmative regulation by Congress.

That this is true is demonstrated by the history of regulation of grain exchanges. Hill v. Wallace (1922) (259 U.S. 44), decided that a prohibitory tax on sales of grain futures not conducted on exchanges submitting to Federal regulation was invalid. The Court pointed out at page 68:

There is not a word in the act from which it can be gathered that it is confined in its operation to interstate commerce. The words "interstate commerce" are not to be found in any part of the act from the title to the closing section.

The transactions upon which the tax is to be imposed, the bill avers, are sales made between members of the board of trade in the city of Chicago for future delivery of grain, which will be settled by the process of offsetting purchases or by a delivery of warehouse receipts of grain stored in Chicago. Looked at in this aspect and without any limitation of the application of the tax to interstate commerce, or to that which the Congress may deem from evidence before it to be an obstruction to interstate commerce, we do not find it possible to sustain the validity of the regulations as they are set forth in this act. A reading of the act makes it quite clear that Congress sought to use the taxing power to give validity to the act. It did not have the exercise of its power under the commerce clause in mind and so did not introduce into the act the limitations which certainly would accompany and mark an exercise of the power under the latter clause.

It follows that sales for future delivery on the board of trade are not in and of themselves interstate commerce.

But the Court also pointed out that such transactions could be brought within the regulatory power of Congress, for, at page 69, it said:

They [futures transactions] cannot come within the regulatory power of Congress as such, unless they are regarded by Congress, from the evidence before it, as directly interfering with interstate commerce so as to be an obstruction or a burden thereon.

The statement in that case pointed the way for the use of a doctrine which was first enunciated during the same month in Stafford v. Wallace (258 U. S. 495 (1922)). Mr. Chief Justice Taft in this case, which is a landmark in the law on interstate commerce, said, at page 520:

The language of the law shows that what Congress had in mind primarily was to prevent such conspiracies by supervision of the agencies which would be likely to be employed in it. If Congress could provide for punishment or restraint of such conspiracies after their formation through the antitrust law as in the Swift case, certainly it may provide regulation to prevent their formation. The reasonable fear by Congress that such acts, usually lawful and affecting only intrastate commerce when considered alone, will probably and more or less constantly be used in conspiracies against interstate commerce or constitute a direct and undue burden on it, expressed in this remedial legislation, serves the same purpose as the intent charged in the Swift indictment to bring acts of a similar character into the current of interstate commerce for Federal restraint. Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.

The

It should be particularly noted that the Supreme Court makes it clear that the findings by Congress which bring the subject within the power of Congress to regulate are the analogy and substitute for the allegation and proof of intent in the indictment in the Swift case, a case involving a conspiracy to restrain interstate_commerce. application of this principle here is obvious. The Court has already held in the labor injunction cases that intent to interfere with interstate commerce brings the matter within the Federal power to enjoin. Here the reasonable and incontestible conclusion of Congress serves the same purpose.

It is also to be noted that Stafford v. Wallace was decided May 1, 1922, and that the first Coronado case, dealing with a coal strike, in which it was said that Congress has the power to subject recurring

practices "to national supervision and restraint" was decided on June 5, 1922. Both opinions were rendered by Mr. Chief Justice Taft. When Congress, acting on the principle announced in Stafford v. Wallace and the suggestion contained in Hill v. Wallace, after hearings and conclusions on the evils of the futures business, passed the Grain Futures Act and inserted its findings, the Supreme Court upheld that statute in Chicago Board of Trade v. Olsen (262 U. S. 1 (1923)) and, at page 37, specifically stated:

In the act we are considering, Congress has expressly declared that transactions and prices of grain in dealing in futures are susceptible to speculation, manipulation, and control which are detrimental to the producer and consumer and persons handling grain in interstate commerce and render regulation imperative for the protection of such commerce and the national public interest therein.

It is clear from the citations, in the statement of the case, of evidence before committees of investigation as to manipulations of the futures market and their effect, that we would be unwarranted in rejecting the finding of Congress as unreasonable, and that in our inquiry as to the validity of this legislation we must accept the view that such manipulation does work to the detriment of producers, consumers, shippers, and legitimate dealers in interstate commerce in grain and that it is a real abuse.

That the Supreme Court will not go behind the reasonable and warranted findings of Congress in such matters is plain from the foregoing cases. That the findings set forth in the bill are not unreasonable and unwarranted is also clear from the long course of legislative inquiry into the soft-coal industry by Congress. It must follow that the regulation based on these findings and in pursuance of their disclosures will be upheld.

Much has been made of the application of the case of Schechter Live Poultry Corporation v. United States (1935) (294 U. S. —; 55 Sup. Ct. 837), to the constitutional question here involved. It cannot be asserted that the Supreme Court in that case overruled any previous cases. Nor did the Court indicate that the regulation by Congress of intrastate commerce in all cases was prohibited. Nor did it in any way reflect on the validity of the doctrine that legislative findings of Congress will not be ignored. The Court pointed out that in this case there was no "direct" burden on interstate commerce which was subject to the regulatory power of Congress. The case is clearly distinguished from the matters here involved.

The Schechter case involved the activities of a slaughterer and seller of poultry in the City of New York. Interstate commerce in the poultry had ceased and the effect of the defendants' acts of selling in the State of New York back upon the prior flow of the commodity in interstate commerce was an indirect one. In the words of the Court:

The mere fact that there may be a constant flow of commodities into a State does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the State and is there held solely for local disposition and use. So far as the poultry here in question is concerned, the flow in interstate commerce has ceased. The poultry had come to a permanent rest within the State. It was not held, used, or sold by defendants in relation to any further transactions in interstate commerce and was not destined for transportation in other States.

These facts serve to point out the clear distinction between the situation which the Court held in the Schechter case beyond the power of Congress to regulate and the situtation in the coal industry which is to be regulated in this bill. The live-poultry industry in New York City was essentially local, even though the poultry came from outside the State.