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ing 49 different laws instead of 1 law. It has drifted powerfully to me that my judgment has been borne out by this investigation that industry is national in character and ought to be viewed from a national standpoint, and it can be carried on only to the advantage of the whole country by taking it from a national viewpoint. If that is wrong, I should be glad to have you set me right; and if it is right, I shall be glad to have you confirm it.

Mr. VINCENT. Obviously, whether it is a productive industry or a service industry or a distribution industry which extends beyond one State, industry has no way to develop mechanisms of self-control. There are too many contradictory interests within industry to permit them to agree upon self-government. Moreover, if they agreed, they have no effective powers of enforcing rules that may be adopted. It is equally obvious that no State can make reuglations that would be effective beyond its own borders.

A good illustration is this: You may take a distribution organization like the Woolworth store or the May store, or a chain of stores. They have a principal house in Chicago or New York City. That is a central office. They buy goods and sell them through stores in 10 or 25 States. The one company or corporate organization does that. The wages of the employees, the salaries of managers, the rent paid for the stores in these 10 or 25 States are fixed at the central office in Chicago or New York City. It is not a local transaction. The whole set-up is for a far-flung business that ignores State lines. The whole set-up is part of our National economy.

The same applies to a manufactured article which is made by more than one member of an industry, whether in the same or different States. It sells in markets in all States. A wide range ofjthe most commonly used commodities are sold in the markets of all the States. That is the answer.

I do not believe industry can be criticized for its incapacity to organize and govern itself, because it is too much split, it is too widely dispersed. There are too many conflicts in an industry to expect it to do that. Consequently the only conclusion is that there must be such Federal control effected as is essential to safeguard the interests of both the public and the industry. By "industry" I mean the investor, the technician, the manager, and the labor employed.

Mr. KELLER. And the people who buy the goods.

Mr. VINCENT. Yes; and the people who finally buy the goods.
Mr. KELLER. How can we come to that control?

Mr. VINCENT. The N. R. A. was one of the first steps. The A. A. A. T. V. A., A. E. C. and Social Security are others. They are of course experimental, as characterized by the President. Whether the next step by Government should follow the same patterns is not so serious a question.

Mr. KELLER. I am referring to the fundamental ability today. Under the recent decision of the Supreme Court we cannot have anything more like that. What would you do about it now?

Mr. VINCENT. Mr. Chairman, do you ask me what I would do about -it?

Mr. KELLER. Yes.

Mr. VINCENT. You are a Member of Congress and you have a proper right to ask that question of a citizen, and, as a citizen, I will say to you that the Supreme Court has created a fundamental issue

between itself and the Congress, not between the Court and the President.

The question is whether Congress shall exercise the powers which are expressly granted to it by the Constitution or whether without any authority in the Constitution the Supreme Court shall assume an authority to review or a power of veto over acts of Congress. The question is a very serious one. I cannot conceive the perpetuation of a democratic government unless we can maintain the democratic process of making laws. A democratic process of making laws means the making of laws by a law-making body elected by the people. That is exactly what the Constitution provided for.

Next, the Constitution does not give to the Supreme Court by word or implication any authority whatsoever to nullify an act of Congress on a legislative subject, and commerce is, obviously, a legislative subject, just as the general welfare is a legislative subject. The common defence and taxation provisions are likewise legislative subjects.

I do not believe that on these subjects an amendment to the Constitution is necessary.

The third article of the Constitution, section 2, expressly authorizes the Congress to define and regulate the jurisdiction of the Supreme Court. We all know that the lower courts are created by act of Congress and have only such jurisdiction as Congress grants them.

I now answer your question, Mr. Chairman, by saying that the Congress of the United States should enact an amendment to the Judiciary Act taking from the lower courts original jurisdiction to entertain any action which challenges the constitutionality of an act of Congress on a legislative subject such as I have mentioned.

Next, the act should further provide for limiting the appellate jurisdiction of the Supreme Court, so that it may not pass upon the constitutionality of an act of Congress on a legislative subject.

Congress has that constitutional power by the most simple and explicit language.

Obviously, the Constitution intended what it expressly states, that is to vest all legislative power in the Congress. In addition it gave to Congress the power to define the jurisdiction of the courts. If the Congress cannot enact law which is effective, if the court has the power to nullify acts of Congress, we no longer have a democratic government. We cannot have a democratic government unless the people have power to make their own laws, by electing representatives to perform this function.

Mr. KELLER. I thank you for that answer, because it has enabled me to give expression to something I have been trying to express a long times.

By what method of reasoning does the Supreme Court of the United States demand that the Congress shall stay entirely within the specific powers granted, granted to it specifically in the Constitution, and yet the Supreme Court itself assumes and exercises a power which is not specifically granted to it?

Mr. VINCENT. If I were to make a suggestion to Congress and to the people of the United States, it would be to read the Constitution. Its language is characterized by brevity and simplicity. Very appropriately it expresses the powers granted to Congress in broad generalizations, as organic law should be expressed:

For example, on the subject of taxes it merely says that Congress shall lay and collect taxes. We cannot add one word to that provision without weakening it. That does not mean to lay taxes in some instances; it means power to lay and collect taxes in such instances and under such circumstances and under such conditions as in the discretion of Congress is justified.

We may say the same respecting the other expressed grants of legislative power to the Congress. They are expressed simply and briefly, in language that is easily understood. They have no meaning now only because their standard and well understood meaning has been distorted by unlawful refinements and interpretations.

The issue is clear Mr. Chairman. Is the Court, which is responsible to no authority but itself, or is the Congress, responsible as it is to the people who elect its Members at short intervals, the supreme law making body?

Mr. KELLER. We thank you very much for your statement, Mr. Vincent.

STATEMENT OF HARVEY WILLSON

Mr. KELLER. The next witness is Mr. Harvey Willson, general manager of the National Upholstery and Drapery Textile Association, Inc., 185 Madison Avenue, New York City.

Mr. SCHNEIDER. Of what does that association consist?
Mr. WILLSON. I shall come to that in a little while.

I want to say first that we are appearing in opposition to H. R. 9072 on four main counts. First, it is discriminatory, insofar as the textile industry is concerned as compared with industry in general. The bill is founded upon false assumptions as to existing conditions or conditions existing in our industry at least. We believe the bill is unconstitutional in several particulars; and, most of all, perhaps, we believe it is fairly impracticable of successful administration.

To establish the identity of both the industry and association I represent I should like to quote from the letter of former National Recovery Administrator Johnson, with which letter he transmitted to the President of the United States the Code of Fair Competition for the Upholstery and Drapery Textile Industry. On page 261 of that printed code General Johnson said [reading]:

The production of upholstery and drapery fabrics is a business which, on equipment of great versatility, uses all types of fibers in producing fabrics to develop and meet style changes. Since its founding, it has been a separate and distinct branch of the textile industry, generally unaffiliated with the production of other textiles. This separation was the natural result of the variety of raw materials used and the special skill and art required in the manufacture of these fabrics. Sales also are made through specialized channels. Upholstery fabrics generally are sold direct to manufacturers of furniture, automobiles, railroad cars, and so forth. Drapery fabrics are sold direct by the mill to large retail outlets while smaller retail outlets are reached through wholesalers. The industry realizes that it is only a small branch of the whole textile industry but because of the variety of fibers used, its specialized type of products, and its separate distribution problems, it does not fit into any of the major classifications of textiles, Further in that connection this same letter of former Administrator Johnson says that [reading]

The National Upholstery and Drapery Textile Association is truly representative of the upholstery and drapery industry and the bylaws of this association provide no inequitable restrictions to membership.

56725-36-46

It is for that association that I am appearing. The industry is pretty generally concentrated in New England and the Middle Atlantic States, with some mills in Southern States, notably North Carolina and South Carolina. The membership of the association represents approximately 90 percent of what is known as the pilefabric production of the industry. Pile fabrics are the plush type as distinguished from what we know as flat goods, which are tapestries and so forth.

The association represents approximately 90 percent of the pile fabrics and 74 percent of the so-called flat fabric, made on 4 by 4 box broad looms with jacquard design requiring 600 hooks and 2 shuttles

or more.

The association I represent firmly believes that the Ellenbogen bill in singling out as it does the textile industry, without apparent proof of their position being unique as compared with other industries in the United States, is doing the textile industry a distinct injustice, particularly when it is realized that the textile industry as a group are in the most keen sort of competition with all of the other industries in the United States, and abroad for that matter, for the consumer's dollar, and to place upon the textile industry burdens which are not at the same time placed upon competing industries for the same dollar is, as we believe, a very obvious discrimination and injustice.

Coming down to the so-called statement of fact or findings of fact upon which the Ellenbogen bill appears to be largely founded and justified, those statements and findings do not fit the picture for our industry at all. To be specific, and taking up the so-called findings of fact in the order mentioned in the bill, we come first to the matter of wages. As to wages the upholstery and drapery textile industry is not singled out for itemization in the Bureau of Labor Statistics, because, as you know, those statistics are compiled along the lines of major fabrics rather than in the nature of the goods made or the outlets through which they are distributed. Consequently, we cannot refer to Bureau of Labor data, but we do have, through the medium of the association, statistical service data showing that the average hourly earnings of workers of all types, skilled and unskilled, in the upholstery and drapery textile industry. These figures are more representative than the membership of our association alone. They are gathered from companies outside the membership of our organization. The figures show the average hourly earnings of 51.7 cents for factory workers and 51 cents for office workers. You will find by referring to the data of the Bureau of Labor Statistics that those figures compare favorably with the average hourly earnings shown for fabricproducing industries on page 7 of the November 1935 report. The figure there is 44.1 cents as an average for the fabric-producing industries. Weekly earnings are recorded as $15.92 for an average. That is substantially below the average weekly earnings of employees in the upholstery and drapery textile industry on the basis of a 40hour week.

The minimum wage provisions inaugurated by the N. R. A. code of our industry have been, are being, and will be maintained on the prevailing textile industry's basis of $12 in the southern region and $13 in the northern region. However, this industry is distinctly a skilled labor industry and in that connection I again refer to the

letter of former Administrator Johnson transmitting our code to the President of the United States for approval.

On page 263 of that code of fair competition for the upholstery and drapery textile industry, as approved on November 27, 1933, by the President, we find this [reading]:

The minimum wage rates for the usual upholstery and drapery mill are not a matter of great concern to either management or labor because 80 to 90 percent of the operators are highly skilled and already receive considerably more than the proposed scale.

As to maximum hours: The code standard of 40 hours a week has been, is being, and will be preserved through voluntary cooperation among the members of the association and members of the industry outside the association.

Mr. SCHNEIDER. What do you mean by "voluntary cooperation"? Mr. WILLSON. Exactly this: Very promptly upon the nullification of the National Recovery Act by the Supreme Court the industry got together at a general meeting and unanimously voted to continue the basic provisions of the code, including the matter of minimum wages and maximum hours of labor. Through my constant and intimate contact with the industry, and by reason of the medium of statistical reports, I can assure you there has not been a departure from the maximum-hour standard.

Mr. KELLER. And minimum wage?

Mr. WILLSON. And minimum wage standard.

Mr. SCHNEIDER. But you are not prepared to tell the committee that there will not be a departure?

Mr. WILLSON. So far as the spirit and intent of the members of the industry is concerned, I think I can go that far. I refer to the present spirit and intent. There is a strong determination among the members of the industry not to depart from those standards.

As to child labor, which is the next item in the findings of fact, that never has been and is not a problem of our industry, primarily because of the fact that our industry is a skilled labor industry, as I have pointed out. It never has been a factor of any consequence whatever with us-child labor. Probably our industry is the least affected of all the textile industries in that respect.

As to work assignments or the stretch-out system, that has not been a problem with our industry. Once more I quote from the letter transmitting our code to the President of the United States. At page 262 it says [reading]:

To manufacture pile fabrics, specialized types of looms are needed which can weave only pile fabrics. Looms for the production of flat fabrics in an upholstery and drapery mill are also specialized as they are suitable only for the production of these more complex fabrics, and are built for quality production, rather than quantity production. As a practical matter, therefore, nonautomatic shaft and jacquard looms mainly are found in mills of this kind. One weaver to a loom is customary in this industry and two or three looms to the weaver is the practical limit, due to the close attention required for the production of a complex fabric. Weavers of upholstery and drapery fabrics are highly skilled operators and a typical worker must have had and actually does have years of experience.

Mr. KELLER. How much did you say the average wage is?
Mr. WILLSON. On the basis of a 40-hour week?

Mr. KELLER. Yes.

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