*1 24, 1936, the court tember at a time when the instant controlling in cases” are not * jurisdiction. fact that below had case. . jurisdiction suit was filed was con- before in addi- questions two Amici curias raise ferred does decree made not invalidate we by appellant, argued those tion to jurisdiction subject-matter after over the consider. was conferred statute. marketing argued First. orig- by the agreement not authorized was act, the orders and therefore inal agreement marketing on a valid based original act 8(2) of the Section are void. Secretary (48 34) authorized the Stat. agree- marketing into Agriculture to enter handling,, with “others ments foreign com- interstate or the current of BOARD RELATIONS NATIONAL LABOR commodity.” The any agricultural merce of SANTA FRUIT PACKING CRUZ agreement herein was marketing involved CO. pursuant provision. entered into to that No. 8432. 24, 1933, By August the amendment of Appeals, foregoing provision with Ninth Circuit. was re-enacted Circuit Court of thereto, (7 as secion 8b some amendments July 31, 1937. U.S.C.A, therefore, believe, 608b). I § validly marketing agreement made. was amended act that provision agreement marketing must be entered pursuant fulfilled, because the to section 8b agreement into, pursuant sec- entered was act, original now 8(2) of which is tion 8b of the amended section act. given was Second. Jurisdiction enforce, prevent Court “to and to District any person violating and restrain * ** order, provisions regula agreement tion heretofore or hereafter made,” by May 9, the Act of 1934. 48 Stat. 24, 1935, Aug. amended Act t)y (7 provi .608a). 762 U.S.C.A. Stat. § fruits for orders relation citrus sions- August, 1935. not added to the act was Therefore, until curia, argue jurisdiction amici given to orders and was relating to fruits. agreements citrus (49 The Act Stat. June 608a-1, repealed 613a), parts U.S.C.A. §§ May expressly respects provided “but amendatory [May Act [said sections] shall be and remain in force and ef-. 1934] until December 1937.” U.S.C.A. feet 613a.) a re-enactment This amounted to
§ jurisdiction upon to confer sufficient regarding ques- orders in below court tion. bill was filed March herein
prior conferring jurisdiction. The to the act July was filed 1936. The case answer below submitted to on was upon stipulation facts date there- same stipulation filed after be filed.- Such Sep- Decree was entered August *2 Workers, 38-44, eal Local International Association,
Longshoremen’s
any
or
other
organization
employees;
labor
of its
and
“(c)
any
From in
manner inter-
other
with,
fering
restraining,
coercing
or
its em-
ployees in
rights
of
exercise
their
form,
self-organization,
join,
to
or assist
organizations,
labor
bargain collectively
through representatives of their own choos-
ing,
engage
and to
in concerted activities
purpose
for the
collective
or
protection,
other mutual
guaran-
aid or
in
teed
Section 7 of the National Labor Re-
lations
157],”
U.S.C.A.
[29
§
action,
and
take affirmative
which the
policies
Board
“will
finds
effectuate the
Act,” (a)
to offer to
discharged
several
employees “immediate and full reinstate-
ment, respectively,
positions,
to their former
prejudice
any rights
priv-
without
and
ileges previously enjoyed”;
(b)
and
discharged
make whole
employees
said
“for
any
pay they
loss of
have suffered
rea-
by payment
son of their discharge
to each
them, respectively,
of a
money
sum of
equal to
each
normally
have earned
wages
period
during the
discharge
date
his
to the date
Counsel,
Fahy,
Robert B.
Gen.
reinstatement,
Charles
of such offer of
computed at
Counsel,
I.
Watts, Associate Gen.
wage
paid
rate each was
at the time
Jerome
Rosenfarb,
Macht,
Norman Som-
Joseph
A.
discharge,
his
less the amount earned sub-
ers,
Philip Levy, Attys.,
Nat.
and
sequent to
discharge”;
“post
his
and to
im-
G,
Washington,
Board,
D.
all of
Relations
mediately
employees
conspic-
notices to its
in
petitioner.
places
for
offices,
uous
in its various
stating
respondent
(1) that
will cease and desist in
Moore,
H.
both
St. Sure and E.
Paul
J.
aforesaid,
(2)
the manner
and
that such no-
respondent.
Oakland, Cal., for
posted
will
period
tices
remain
for a
of at
WILBUR, DENMAN,
and
Before
thirty (30)
least
days
consecutive
from-the
HANEY,
Judges.
Circuit
posting.”
date
petition
has
Board
filed its
in this
DENMAN,
Judge.
Circuit
for
the enforcement of the orders.
Board
National Labor Relations
Respondent Packing Company appears and
April
1936, required the re-
orders of
its
contests
enforcement.
spondent
and desist:
to “Cease
admits
in
membership
discouraging
From
“(a)
canning
packing
fruits
veg-
Weighers, Warehousemen
Cereal
etables,
processed
of which are
Long-
38-44,
Workers, Local
International
persons
to be sold to
in other states and for-
Association,
any
la-
other
or
shoremen’s
eign
shipped
countries and
to them there.
employees, by
its
dis-
organization
bor
pack
1,600,-
Its total
excess of
any
threatening
discharge
charging or
000 cases.
It consisted
tomatoes and
joining Weighers,
products, peaches, apricots, spinach,
tomato
Workers,
Cereal
Local
Warehousemen
asparagus,
pork
beans,
pears,
38-44,
Longshoremen’s Asso-
International
volume, in
order
named.
any
organization
ciation,
labor
employees; and
relying
respondent,
solely
on the
unconstitutionality
any
of the Labor
other manner
Relations
“(b) From
discrim-
151-166)
pro-
any
(29 U.S.C.A.
and the
against
of its
in re- Act
inating
§§
Board,
ceedings
does
employment
hire or tenure of
gard to
employees were dismissed
it be-*
employment for
or condition of
term
engaged some of them had
Weighers,
and Cer- cause
joining
Warehousemen
manufacture,
ques-
holding
others
lumber-
the union
local of
formation of the
lockout,
processes,
ing,
mining
Upon
including the
it.
joined
tion and all had
loading
product,
on to the cars
local caused the Oakland
ensued,
up
causing
all activities
movement
hos-
actual
out of
picketed. Violence
*3
state,
Case,
the
participants.
as in the Coe
the
constitute
pitalization of some
production. Hence,
intrastate
respond-
“hot”
plant
declared
contends,
teamsters,
ent
dock
the Labor Relations
is an
and other locals
unions—
attempt by
Congress
seamen,
— n
to control the labor
clerks, scalers,
longshoremen
and
Blacklisting
activity
relations in such an intrastate
and
handle it.
refused to
failed or
provisions
violates the
attempted.
of the Tenth Amend-
products was
ment to the Constitution.
the “bulk of”
found that
The Board
questions
for our solution are:
processed by the re-
products
agricultural
spondent
California,
from the State of
(1)
came
Is the Carter v. Carter Coal Co. de-
accept
contends,
we
respondent
and
cision
and
the
overruled
the decision of the Su-
substantially
contention,
all of
that
Court in National Labor Relations
produced by growers
products were
Board v.
Laughlin
Corpora-
&
Steel
Jones
contends,
we tion,
Respondent
615,
—,
further
state.
57 S.Ct.
81 L.Ed.
purposes 1352,
for the
with the Contention
agree
so far
as
former holds that the
decision,
processing
that
gives
no
to the
loading of its
respondent, including the
regulate
intrastate
goods
and manu-
cars,
activity as
product in
is an intrastate
facture of
to its labor
Case,
v. Errol
disputes,
is held to be in the Coe
which diminish or throttle the flow
29 L.Ed.
6 S.Ct.
116U.S.
intended to be and which would be
715.
into interstate commerce?
shipped
(2) Granting
un-
was raised that
The contention also
has such
prod- power,
sale of the
can it be
agreements
for the
exercised where 39
der
ucts,
purchaser
goods produced by
shipped
transferred to the
title was
labor em-
ployed
entry
goods into
are
per
prior
the actual
carrier,
61
which and
carriage
an interstate
remain within the
accept
purposes
for the
manufacture ?
contention we also
of this decision.
(1) Carter v. Carter Coal Co. and simi-
lar cases are overruled
respondent
National
appears
two
Labor
It
had
Relations Board
Oakland, California,
v. Jones & Laughlin Steel
one
known
plants;
at
Corporation.
plant,”
the “Santa Cruz
and one at Sea-
as
Cruz, Cal. The
as
bright, near Santa
case
Respondent’s contention that the Carter
presented here concerns
Laugh-
overruled
Case is not
lift decision is
&
Jones
plant
there is
engaged at the Oakland
squarely' presented
to this
any
products
showing
no
and it would be
ju-
court
dicial
an evasion of our
Seabright
ever left the State of Cal-
obligation
deny
it a full considera-
ifornia.
attempt
by asserting
tion
to evade
controlling.”
it is here “not
hold that
far
We
as concerns the
activities of the
shipping
circuits,
manufacture
Second, Fifth,
Three
and its
respondent
at the Oak- Sixth,
principle
relied
established
dispute
plant, the labor
leading
land
in holding
in the Carter Case
that the Na
employees,
discharge of the
the declaration
tional
Relations Act was unconstitu
“hot,”
sympa-
and the
of
thetic refusal of
tional. National Labor Relations Board v.
unions
handle
Friedman-Harry
A.2)
Clothing
Marks
(C.C.
Co.
them, “throttled” the flow of interstate com-
1, 2;
F.(2d)
85
National Labor Rela
“put in jeopardy”
merce
its future
Board v.
Corp.
tions
Steel
flow,
to the extent of the 39
998, 999;
(C.C.A.5)
(2d)
83 F.
Fruehauf
respondent’s products manufactured to be Trailer Co. v. National Labor Relations
shipped into that commerce.
(C.C.A.6)
F.(2d)
Board
relies
on
In
three of
decisions of
these cases there was an
Co.,
import
Carter Carter Coal
298 U.S.
of raw
antecedent
ing
materials enter-
1160;
production,
S.Ct.
United Mine
over which the La-
Co.,
Workers v. Coronado Coal
344,
762;
bor
Board
U.S.
Relations
'asserted the
Here,
employee.
Lord,
Mining
respondent asserts,
Oliver Iron
v.Co.
262 the
is a case identical
929;
Case,
and with the Carter
what,
Coal
in-
that,
in min-
controlling
towards
sists,
fact
historic attitudes
Conventional
is the
vegetables
important
coal,
rights
highly
fruit and
ing
both the
states’
produced
prac-
packed product are
political world when faced with the
the canned
of the exercise
ticability
proposals
of novel
the state.
power. may may
congressional
is iden-
the Carter case
patent that
It is
particular
time
politically
wise
principle with
and relevant
tical
in fact
caution,
proceed with
respondent.
that of
way
judicial
in no
concerns
but this
controlling
clearly
overruled
Unless
power. To
question of the extent of
.right
it denies the constitutional
in so far as
when
in decision
refrain from or
hesitate
disputes
regulate labor
Congress to
presented
fairly
well
*4
substantially
of a man-
affecting
the volume
of ef-
paralysis
frustration
cause the
output
is “to
trans-
which
be”
ufacturer’s
ported
legislative
ficient
executive action.
which
in interstate commerce
Ed-
reasoning
holding of the
transport
may
from that
be throttled
Case, supra,
negative
wards
answers
reg-
so
in
state unless
ultimate
another
sale
the first of
contentions.
ulated.
grant
specific constitutional
(2) The
of
the fact that the
laid on
Great stress is
Congress by
section
power to the
article
such
exercised
a
Congress has not before
regulate
among the states
commerce
to
in
of
power
relations
over labor
to the
paramount
is
nations
transported into interstate com-
goods to be
reg-
power
by
exercise
the states of
of
may regulate
if it
argued
It
merce.
labor
is
com-
intermingled intrastate
ulation
merce,
of
disputes
it will affect
because
reservation
general
included in the
transported
be
in inter-
goods
of
to
volume
Amendment.
powers
state
the Tenth
commerce,
regulate
may
the volume
state
Hence,
percentage
any substantial
of,
clothing or furniture
say,
itself
or
shoes
if
product produced
produced
in
is
to
a state
products,
used in
or the material
or food
commerce,
or
enter interstate
produced
housing,
for
the construction of
Congress
regulate
production,
its
may
urged
use in other states. It is
that all
as it
the volume
enter such
to
production generally
has been conceived
far
affects
reg-
regulation
also
control, and there are
a matter of state
larger percentage
ulates
which
pointed
political
dangers of
control of
out
does not
the state.
leave
Washington.
such matters
bureaus
suggested
It is
that the Constitution was
Section 8 of article 1 of
Constitu
agricultural
pioneer
econ-
framed to meet a
specific grant
power
over
tion makes a
omy
nearly everything
in which
consumed interstate commerce. The Tenth Amend
grown
or made on
farms or
general
powers
ment is a
reservation of all
neighboring towns. Hence
is further
placed
granted.
is
There
no limit
on
urged that the framers of the Constitution
grant,
proviso
no
that because the states
lodged in
never would have
powers
exercised certain
over
also have
powers
over
commerce if
had
interstate
production,
and other
Con
manufacture
gress
economy
practically
in which
envisioned an
hampered
way
is to be in
wear, every
clothing
judges
all the
wc
ob-
regulation.
full exercise of its
The Su
ject contained in the chambers which we preme
repeatedly
Court has
held the con
sit,
major part
en-
and the
material
trary.
tering
building
the construction of the
general
Construing the
reservation of
housed,
which
court is
come
some
powers by
Amendment,
state
the Tenth
other than
state
California.
specific
grant
power
affected
regulate
first,
interstate
The answer to these contentions
article
we
Constitution,
have made
our decision
Edwards v. §
“This
S.,
court held:
reservation
the states
F.(2d)
decided
mani-
U.
festly
only of
July 22,
authority
is
on
that the
which
Carter Case
with,
opposed to,
and not
is overruled
deci consistent
sion;
grant Congress.
There is
give
the Constitution did
no room in
our
government
power so
regulate
scheme
the assertion
hostility
commerce;
power
power in
plenary
and that that
authorized
power.
productive
authority
exercise
Federal
as to all
activities which sub
every
stantially
part
extends to
to throttle the
inter-
affect
tend
vol
every
transported
ume of
instrumental-
ity
production.
on;
agency by
the state of
outside
it is carried
Company complete.
the sub
In each the conduct
by Congress of
the full control
business,
to of the
is not
intrastate
the one as to
regulation
to its'
jects committed
labor,
commingling rates and the
other as to its
affects
or thwarted
be denied
operations.
arising
the interstate
ac-
business
from the
intrastate
interstate and
of
This is not to
respective companies. In
deal
tivities of the
one
say
nation
state,
is-accomplished by producing
as this
an
concerns of
with the internal
unfair
áuch,
by Congress of
rate
ported,
"to be” trans-
commodities
execution
but that the
by throttling
inter
and in the other
constitutional
its
state commerce
"to
by the fact
interstate business in the commodities
is not limited
transported.
be”
busi-
be
In both the intrastate
have
that intrastate transactions
puts
jeopardy”
proper
ef ness
“in
and fair
therewith that
come so interwoven
among
conduct
the states.
inciden
of the commerce
of the former
fective
acceptance by
tally
the latter. This conclusion
controls
Shreveport
supremacy
again
the doctrine of the
Case
necessarily
from the
results
appointed
overruling
demonstrates the
of the Carter
power within its
the national
sphere.”
(Simp Case.
The Minnesota Rate Case
Shepard),
son v.
729, 739,
230 U.S.
Shreveport
determine
Case does not
L.R.A.(N.S.)
*5
right
the
to control the intra-
1151,Ann.Cas.1916A, 18.
activity
upon any
making
in rate
ratio
under the
between the volume of business
Laughlin
holds that
The
Case
&
Jones
intrastate rates and under the interstate
labor
disorganization and
disturbance
Laughlin
sig-
rates. In the
no
&
Case
have
affecting interstate commerce does not
Jones
per
nificance is attached to the
that 75
fact
railway employees bring it within
to be of
cent, of the steel and other manufactured
Congress. The interference
the control of
entered interstate
or
in
may
well
from labor conditions
come
cent,
per
that but 25
manufac-
intrastate
entirely
business
different
intrastate
regulated.
ture was
transportation.
from
Ry.
opinion
[Virginian
“The
in that case
Respondent
largest
is
fifth
sixth
Federation,
System
81
Co. v.
S.Ct.
57
companies processing
of the California
points
large measure
L.Ed.
also
789]
packing
vegetables.
per
fruits and
The 39
cent,
policy
of success of the labor
embodied
of its business which enters
inter
But,
respect
Railway
with
Labor Act.
sufficiently
state commerce is a
substantial
appropriateness
recognition
0of
to the
warrant
amount to
to make
representation
self-organization and
in the
thereby
regulation,
effective its
even
cent,
peace,
promotion of
is not es
per
the 61
which is intrastate business
sentially
in the case
disputes.
regulated
is
with reference to labor
different
in industries
such a character that inter
intermingling
The
of the two activities
put in
from the
jeopardy
state commerce is
does
take
transportation
com
case of
portion
that substantial
over
panies.
protect
And of what avail
it to
specifically
which the Constitution has
facility
transportation,
if interstate granted
govern
the control to the federal
is throttled with
commerce
commoditiesto be
ment.
transported.” (Emphasis
suggestion
The
that we should make
National Labor Relations Board
supplied.)
cent,
academically arbitrary
per
an
50
Corp.,
&
Steel
Jones
boundary
juris
between
line
the two
—,
615,627,81 L.Ed.
108
ignores
practical
dictions
necessities of
Shreveport
(Houston,
The
Case
E. & W.
cent,
per
industry. Shall
50
it be
volume
Co.)
R.
T.
price
happens
? What
when for the first
upon by
relied
cent,
year
per
months of the
6
ported
ex
Laugh
cent,
Court for
decision
Jones
domestic,
and 40
and for
Case,
company, by
lin
holds that a
the rate
year
percentages
rest of the
are re
business,
charge
may
of its intrastate
affect
Does the federal control
versed?
end on
the rates of its interstate business in such a
30th? On which is the burden of
June
proof,
way that the intrastate business
comes
rate
the state interest or the federal ?
congressional regulation.
within
The fact
competition
How unfair
be the
be
happen
both of
the businesses
to be
industry producing
tween the
the 60
transportation is not relevant.
export
regulation
for
under federal
analogy
Shreveport
competitor
between the
and its
with 40
under
Packing
regulation
regulation
Case
the Santa Cruz Fruit
or no
at all!
thrive,
act,
conferring ju-
160(a)
29 U.S.C.A.
cannot
§
Industry
business
Board,
exist,
risdiction on
stated:
the uncer-
and then
it could
cases
some
provision, pre-
“The critical words of this
mathematical
an abstract
oí
tainty
authority
scribing the limits of the Board’s
be infer-
It cannot
problem.
solution
practices,
dealing
with
create a
the labor
are ‘af-
Congress intended
that the
red
”
fecting
commerce.’
definition
confusing alike
situation
act,
2(6)
“commerce”
section
employee.
attempt
152(6) makes no
to de-
U.S.C.A. §
pro-
minima
the sufficient
What
foreign
fine interstate or
commerce.
of com-
flow
ducers’ contributions
applied
word “definition” as
to commerce
regulation
congressional
warrant
merce to
in said
is a misnomer in
sense.
section
We
questions arise.
be decided as
must
part
thereof which
be called
Com-
Cruz
Santa
no doubt
have
definition,
portion
is the
that restricts the
added,
contribution,
to volume
both as
pany’s
meaning
broad
to “interstate and
per-
foreign commerce
to interstate
sense”;
constitutional
“affecting com-
output,
centage of its
the section makes no effort to determine or
meaning
the act.
merce” within
I
define
am
sense.
the Constitution
hold that
therefore
We
anything
unable to find
Case
Jones
reg-
power to
Congress the
granted to the
which defines anew “interstate commerce.”
ref-
relations
labor
ulate
necessary
make
defini-
Were
such a
its Oak-
employees at
to all
erence
tion, I believe the
might
inference which
engaged in the
land
properly be taken from the
Case is
vegetables, the
packed fruits and
canned and
anything
which either starts or
aids
in-
of which was
processing of
flow of the
stream is interstate or
and had
interstate commerce
tended
applied here,
As
beginning
commerce.
*6
period
for a considerable
throttled
been
plant-
of the flow would be traceable to the
commerce, although the
entering
ing
stages
of the seed. Successive
remain within
remaining 61
planting
growing,
of the
consist
and
sale
production.
delivery
respondent,
canning,
and
to
and desist
to cease
orders
The Board’s
shipment-in
commerce,
interstate
and each
employees of the re
applied
all
to
step
thereafter until the
reached
ship
shows no
spondent,
the evidence
the hands of the consumer and was con-
com
into interstate
ments
step
part
sumed
him. Each
would be a
or
Seabright plant. The
from its
merce
interpretation
the stream. Such an
is
only
apply
to
modified to
should be
ders
what I believe
be
to
the intent of the words
plant; other
employees of
Oakland
used in the
as
Constitution.
enforced.
they should be
wise
However, I
Supreme
do not believe the
National Labor Rela-
The orders
definition,
Court made such a
because under
Board,
con-
to
modified
tions
so
act,
its construction of the
a new definition
to
fining
effect
their
unnecessary.
Board, by
act,
is
The
is
respondent,
or-
plant of
Oakland
given jurisdiction over an unfair
labor
enforced.
dered
practice “affecting commerce”
as defined
2(7),
152(7).
29 U.S.C.A.
section
§
HANEY,
Judge (concurring).
Circuit
depend
provision.
on this
cases
The Su-
I concur.
provision,
Court construed this
as
Co., 298
v. Carter Coal
Carter
I believe
“This
follows:
definition is one of exclu-
1160,
855,
238,
was
S.Ct.
grant
sion as well as inclusion. The
Labor Rel. Board v.
Nat.
effect overruled
authority
purport
Board does not
615,
Corp.,
Steel
57 S.Ct.
Laughlin
&
relationship
extend
beween
in-
all
Jones
decided
, 108
81 L.Ed.
employers.
A.L.R.
dustrial
Its
—
April
Supreme Court
impose
bargaining
do not
collective
terms
no words are contained
true that
it is
industry regardless
upon
upon
of effects
which indicates
opinion in the latter case
purports
commerce.
It
interstate
formally
consid
Carter Case
only what
be
reach
deemed to bur-
merely
stated
is
to be overruled.
ered
and,
that commerce
den or obstruct
thus
controlling.”
“not
Case is
the Carter
be
it must
construed as
qualified,
contem-
plating the exercise
control within con-
controlling factor to
then is the
What
principle
It is
familiar
bounds.
juris-
stitutional
with the
connection
considered
be
directly burden or
Case,
which
obstruct
that acts
In the
of the Board?
diction
Jones
commerce,
or its
free
10(a)
interstate
quoted section
flow,
moved
congres-
long
reach
in interstate
are within the
commerce. So
moved,
power.
having
that effect
sional
Acts
are
out
so
unfair
they
practice
labor
grow
rendered immune because
obstructed the movement to
* * *
disputes.
of labor
upon
It is the
that
direct
extent.
effect would therefore be
effect
not the source
the in-
and immediate.
*
**
jury,
the criterion.
WILBUR,
Judge (dissenting).
Circuit
particular
Whether or not
action does affect
I
in such a close
intimate fash-
dissent.
commerce
ion as to
control,
be subject
federal
having
decided in
authority
con-
hence
lie within the
National Labor Relations Board v.
&
Jones
Board,
upon
ferred
left
the statute
Corp.,
Steel
57 S.Ct.
81 L.Ed.
to be determined as
cases arise.”
individual
-,
companion
A.L.R.
(Italics supplied.)
(National
cases
Friedman-Harry
Labor
Board v.
Relations
Co.,
quite plain
con-
Clothing
Thus it
that we are to
Marks
e.,
1352;
thing,
-,
sider
one
i.
effect of the
81 L.Ed.
practice
unfair
National
labor
on interstate com-
Board v. Frue
Relations
pointed
Co.,
But it is
out in the
hauf
merce.
Trailer
57 S.Ct.
-,
1352; Washington,
Case that
the effect on interstate com-
Vir
merce,
practice,
ginia Maryland
unfair
labor
must be
Coach Co. v. National
Board,
direct
immediate
not indirect and Labor
Relations
81 L.
57 S.Ct.
remote;
“Undoubtedly Ed. -;
saying:
the court
Associated Press v. National La
scope
Board,
bor
must
considered
Relations
-),
light
system govern-
regulatory power
of our dual
ment
not be extended so
to em- under the interstate commerce clause of
protection
brace effects
commerce so the
interstate
extends to
them,
system
indirect and remote that to embrace
in
collective
between
complex society,
our
employee
view of
would ef-
in those industries
fectually
between
obliterate the distinction
whose
enter
inter
largely into
what
and what
is local and
employ
is national
commerce that a strike
completely
government..
preventing production
create a
centralized
ees
would directly
* * *
question necessarily
necessary
one of affect
it is
degree.”
relating
The rule
apply
principles
is like
ones
enunciated
those
*7
instrumentality
to a state tax on an
of the cases to the case at bar.
government
instrumentality
federal
or on an
considering
interpretation
In.
of the
of interstate
and a federal tax
Constitution,
quite
Federal
the
it is
true that
instrumentality
government.
on an
of state
of our
founders
did not
I
of them
on
believe all
are based
the modi-
changes
by
realize the
which would come
Mary-
fication
the rule in
v.
McCulloch
reason of the increased facilities for inter-
land,
(4
4
Wheat.)
17
L.Ed.
U.S.
state communication and business
the
Supervisors,
New York
74
Bank of
v.
steamboat,
railroad,
airplane,
telegraph,
26, 29,
Wall.)
(7
U.S.
and in telephone,
radio.
While these increased
First National Bank of Louisville v. Com- facilities
changed
have not
the Constitution
Kentucky,
(9 Wall.)
monwealth of
U.S.
76
meaning, they
vastly
or its
have
extended
rules,
L.Ed. 701.
of these
19
All
application.
framers
the Consti-
sound,
theoretically
although
are unwise in
probably
pro-
suspected
tution
never
that
practical
gauge
a
sense. No
has ever been fanity whispered
microphone
into a
in Port-
given
made which
mined
effect
be deter-
land, Ore.,
heard around the world
either direct
to be
or remote. As a
bring
subject
that
under
thus
federal
speculation
uncertainty.
result we have
(C.C.A.)
F.(2d)
control. Duncan v. U.S.
48
dissenting opinion
Compare
in Brush
questions
128.
now
No one
Commissioner,
300
57
legislate concerning
vastly
this
81
decided
regulating
wider
Laws
field.
radio com-
Supreme
Court on March
airplane
munication
traffic have been
However, in
accepted
the instant
applying
they
case
as a matter of course because
rule,
plain
clearly
to see that
that
commerce is
interstate
relate
interstate commerce. The
obstructed,
production
because
has
changed
in that re-
spect;
grown.
was halted
unfair labor
it has not
It
interstate
practice.
impor-
I do not believe that it is
grown.
commerce which has
The activities
cent,
per
respondent’s
however,
whether 98
people,
tant
of the
in engaging in such
cent,
it,
only per
enterprises
actually
brought
have
them
fruit,
into interstate
any,
of his
if
will enter
power of
regulatory
under
commerce. He sells it to
Constitution.
Federal
under the
cent,
per
of the
knowing, perhaps, that 39
Case,
supra,
&
In the Jones
cannery
into for-
product of the
will enter
organize
industries
pointed
that when
out
cannery
eign or interstate commerce.
that inter-
scale
on a national
themselves
employees into
segregate
does not
necessary factor
commerce is
upon
groups,
working
some
material
regula-
activities,
subject to
they are
their
enter into interstate and
the commerce
Congress under
tory power of
upon
be sold in intra-
and others
material to
Constitution.
Federal
clause of the
segregation
is no
state commerce. There
support the Constitution
duty to
is our
product
until after the
at
time
by the
interpreted
States.as
of the United
operations
cannery
warehousing
ut-
of the
therefore
Supreme
It is
Court.
completed.
to ascertain
this case
importance in
most
predicated
The decision of the Board is
decided
Supreme
has
Court
what the
proposition
might
that a strike
re-
ap-
constitutionality and
reference
bargaining
sult if collective
were denied and
Relations
Wagner Labor
plicability of the
that
if such a strike occurred would di-
apply
151-166) and
U.S.C.A. §§
rectly
affect interstate commerce
shut-
pre-
situation
factual
conclusion to the
decision,
production.
ting
That
assum-
off
case
bar.
in the
sented
jurisdiction
ing
over the
entire
lay
down
did
plants
Seabright
col-
Oakland and
so far as
subject.
upon the
general rule
any definite
concerned,
pred-
bargaining is
is not
lective
con-
hold,
particular industries
as to
It did
upon any
distinguishing
clear line
be-
icated
Laughlin Case
&
sidered
Jones
employees working
plant
tween the
in the
cases,
congressional
companion
performed
of the
as to the character
work
protection of collective
extended to
theory
is based on the
inasmuch
employers
plants of the
cent,
product
way
finds its
as 39
involved.
there
in interstate commerce a restriction of
Corpora
Laughlin Steel
In the
output
would diminish the
product
Case, supra,
tion
entering
amount of material
into interstate
Pennsylvania.
one of
It is
shipped
out
pro
tanto. There is no evidence
largest producers of steel
the four
support
conclusion other than the
(National
In the trailer case
States.
United
assumption that
business
would be di-
Board v. Fruehauf Trailer
Relations
way
in the same
whether
vided
the amount
L.Ed.-,
Co,
product
great or small. None
was
1352, supra),
of the material
the cases decided
states,
imported from other
was
used
does
went as far as
this decision of the
shipped
outside
Not
was most of
Board.
the raw ma-
clothing
(National
case
In the
the state.
in those
terial
cases im-
*8
Friedman-Harry
Relations Board v.
state,
ported from outside the
but in each
cent,
Co.,
645,
Clothing
S.Ct.
81 L.Ed.
Marks
per
than 75
resulting
case more
the
-,
supra),
cent.
108 A.L.R.
99.57
product
entered into interstate and
states,
from other
the
came
prod-
Here we
commerce.
have none of the
purchased
being
in New York
outside the
ucts from
state and less than
alone,
output purchased
82.8
product entering
the
half
interstate com-
by customers outside the state.
merce. As the cases decided
the Su-
directly applicable
Court are not
be-
approximate the
None of these cases
differ,
facts
we turn
cause the
to the reason-
presented in the
All
condition
case at bar.
ing by
majority
Supreme
which the
large
in which
of them dealt
cases
reached its conclusion to see if
such
part
of the raw material manufactured
applicable
reasoning is
or decisive herein.
imported
employers
state
the
was
the
purpose
broadly
logic
for the
of manufacture and was in
Taken
of this reason-
exported from
justify
fact
the state after manufac-
ing
sociates,
my
would
conclusion of
as-
In the
majority
ture.
case at bar we have the de-
but the
Justices
Court,
preparing homegrown
Supreme
fendant
as well
minority,
as the
products
opinion,
knowing
danger
pressed
for the market
ac-
foresaw
conclusion,
cording
to its
logical
might
usual business 39
to its
result
sovereign
only
would enter
leaving
into interstate
states
grower
commerce. The
empty
who
hull
and admonished
produces
fruit
part
applying'
does not know
these decisions we
what
must
regulation of
such
as are
problem
manufactures
only
as a factor
not
consider
subject
intended
be the
of commercial
commerce
upon interstate
effect
the direct
future,
impossible to
system, but
transactions in the
it is
the collective
authority deny,
produc-
that it would also include all
a factor
must also consider as
contemplate
tive
the same
concerns ex
industries that
over domestic
of the state
thing.
congress
would be that
impliedly
result
pressly
reserved
invested,
regard I
be
exclusion
In that
them the Constitution.
states,
power
majority,
regulate,
with the
opinion
quote from the
manufacture,
agriculture,
but also
horticul-
Justice, as follows
Chief
written
fisheries,
ture,
—,
min-
stock-raising, domestic
615, 624,
81 L.Ed.
short,
pow
ing,
in-
scope
every
branch of human
“Undoubtedly the
1352):
—-in”
dustry.’
our
light of
considered
er must be
may
be
system government and
dual
Nearly
century ago,
half
case
upon in
effects
so as to embrace
extended
Pearson,
of Kidd v.
9 S.Ct.
U.S.
indirect and remote
terstate commerce
346, supra,
them,
of our com
in view
that to embrace
prohibit
held that a state could
manufac-
effectually
obliterate
plex society, would
turing
liquor
intoxicating
within its bor-
what
is national
between
distinction
notwithstanding
liquor
ders
in-
completely cen
and create a
is local
what
states,
transportation
tended
to other
for_
question is
government.
Id.
tralized
purpose.
and was manufactured for that
degree. As the Court
necessarily one of
that,
stated:
“It
is true
not-
City
Chicago
of Trade of
in Board
said
prohibition
withstanding its
stat-
[the
Olsen, supra,
43 S.Ct.
262 U.S.
v.
purposes and ends are restricted to the
ute]
jurisdictional
839, repeating what had been
Iowa,
limits of the state of
Wallace, supra
said in Stafford
[258
apply
wholly
internal
transactions
citizens,
and between its own
its effects
more or less
amounts to
Whatever
229]:
constant
state,
beyond
by lessening
reach
threatens to obstruct
practice, and
intoxicating liquors exported.
amount of
inter
unduly
freedom of
to burden the
that,
But
it does not follow
because the
regulatory
is within the
of a domestic manufacture
ul-
under the commerce
power
timately
subjects
become the
of interstate
clause,
primarily
pleasure
of the manu-
danger
decide the fact of
consider and
facturer,
legislation
of the state re-
”it.’
and to meet
specting
attempted
manufacture
an
court, upon
power
minority
this sub- exercise of the
exclusively
independence
say:
congress.
“It
vital that the
conferred
ject,
Can
police
it be said that a refusal of
a state to allow
of the commercial
them,
the delimitation between
articles to manufactured within her
power, and
bor-
(for export) any
perplexing,
directly
ders
more
sometimes
al-
or ma-
however
observed, for,
terially effects her
recognized and
while
external commerce
ways be
than
her
strongest
forbidding
bond of does
action
furnishes
the retail
the one
union,
preserva- within her borders of
other is essential to the
the same
articles aft-
they
autonomy
import-
as re- er
have left the
the states
hands of the
tion of
government;'
form of
ers?”
quired
our dual
evils,
acknowledged
grave
however
query
To this
Court an-
be,
they may appear to
had better
urgent
“No.” In answering
swered:
*9
borne,
run,
risk
than the
be
the effort
be
Supreme Court cited
the
the earlier cases
them,
suppress
more serious
of
conse-
to
Cases,
(the
License Tax
5 Wall.
expedients
by
to
of even
quences
resort
497)
seventy years ago,
decided
constitutionality.”
doubtful
it is said:
where
“Over this commerce and
pointed
by
danger was
out
internal commerce and
This
the Su-
trade
domestic
[the
Pearson,
power
in Kidd v.
of the
has no
Court
trade
states]
by
regulation nor
direct
cited
the minor- of
control. This
exclusively
dissenting power belongs
ity
to the
States.
by Congress
opinion in the
Case. The No interference
with the busi-
of citizens transacted within
there said
81 L.Ed. ness
a State
“
Constitution,
by
except
—,
1352):
‘If it be held that
warranted
is
strictly
foreign
is
incidental to the
(commerce
term
with
nations
such as
exercise
powers
states)
clearly granted
legislature.
among the several
includes
to the
activity
within
foreign
entered
power
a business
this
to authorize
interstate or
to
exclusive commerce? The
plainly repugnant
clearly
historical
is
answer
a State is
subject.”
provision
that such a
power
over the same
of the State
construed would not
adopted.
have been
elementary constitu-
This statement
In a sense we should
deciding
view the case be-
arguendo
was made
tional law
parties
fore us
if the
as
involved were
business
could not
authorize
that
state of
hand,
California on the one
license
prohibited by the state and that
government
federal
other,
on the
each
to
as-
permit
licensee
operate
to
tax did not
serting jurisdiction
parties
over the
to
prohibit-
this
in a state
business
conduct a
action, and each asserting
right
regu-
to
that the
the.
may well be
that business.
ed
recent decisions
late
relation
of employer
employee
Supreme Court
here
Is
logical
involved.
say
it
to
this
that the
depart from
cases
Wagner
government
federal
should control a con-
they
that the
holding
do
rule
earlier
fessedly intrastate or
activity
domestic
be-
output
enter-
business
a local
volume of
cent,
per
cause
product
of its
shipped
is
may become
ing into interstate
state,
out of deny
to-
to the
it
state
subject
because
legislation
of federal
government
dustry
power
commerce,
the in-
but the
directly
interstate
of the
affects
any part
or
reason,
of it for that
al-
on the
many
decisions
is con-
subject must not be considered
same
sumed within the state?
it the
Was
inten-
disregarded or
completely brushed aside or
tion of the thirteen original states when
As-
by these recent decisions.
overruled
suming,
they adopted the
grant
Constitution to
then,
ex-
decisions
recent
power
government?
federal
power
As the
previous limits of federal
tend the
Supreme Court
declared,
has often
where
business
business because that
over local
interstate commerce is
eral
concerned the fed-
directly
affects interstate
government
supreme
reason
case
is whether
not
bar
interstate commerce clause of the
petitioner
Constitu-
ul-
the conclusion
tion. This rule has been enunciated from
destination of
re-
timate
spondent’s
cent
first, but in
the instant
case it
not
and for-
the thing
asserted that
regulated
is inter-
subject
eign
regulatory
to the
merely
state commerce but
something dom-
power Congress.should
control the other
estic—intrastate —which “directly
production normally
affects”
sub-
interstate commerce. So that we are con-
cerned with an exercise of
regulation,
ject to
a reasonable rec-
corollary
right
ognition
govern-
of the state
power
than
rather
grant
the direct
ment to control its
considering
In
domestic affairs.
power Congress. Certainly
in this broad-
rights
the relative
of the state
er and
pow-
more nebulous field
exercise
governments
and federal
it
he re-
should
government
er
the federal
give
that after
full
membered
the Revolution
recognition
due
to the
inherent
sovereignty was vested
orig-
in each of the
sovereign
control its own domes-
subject
inal states
minor control Con-
tic
I cannot
affairs.
believe
where
less
gress under the Articles of Confederation
than SO
prod-
manufactured
government
federal
and that the
only
now has
uct
enters
interstate and
powers
com-
granted
as were then
merce
federal
justified
states
it
Constitution
under the interstate commerce clause in
granted by
as were
and such
the amend-
seizing
exercising jurisdiction
This,
over the
although historically
ments thereto.
industry.
whole
The line must be
clear,
drawn
made
definite
the Tenth
somewhere and
seems to me
that must
to the
Amendment
ratified
at least be drawn so that control will reside
states,
expressly reserving
to the
sovereignty
most
affected
the ac-
people,
powers
given
to
United States.
tion.
Is it to
believed
full
have
given
been
Wagner
Act does
expressly
au-
over interstate
if
any interference
powers
thorize
with the
*10
thought by
been
had
those who formed nor
the state
define what constitutes direct
Constitution
1787 and
consented
its
interference
foreign
interstate or
com-
time,
adoption
that
lying
that
Congress
dormant
If
jurisdic-
merce.
had asserted
general grant
a
power
within this
industries
tion over
and activities wherein
power
activity
practically every
to control
percentage, say
in a certain
SO
product more,
small percentage
products,
a state if a
ultimately
moved in
power
grant
foreign
interstate or
over interstate
Congress if it commerce in
power,
would sustain the action of
favor of federal
which
any
justified
is not
had
reasonable doubt of the constitu-
unless the federal interest
preponderates.
tionality
In
a case the
of its action.
such
presumption
Congress had acted con-
that
Congress laid down
guide
no certain
fof
stitutionally
would
beyond
be overborne where the Board or the court
reaching
its con-
it was clear
a reasonable doubt that clusions,
provided
and has
that the action of
by
action was not authorized
the Con-
approved by
Board is ineffective until
Wagner
But in the
stitution.
did
it
question
the court. The
as to whether un-
to draw the line to which
undertake
der the facts found
a direct effect
the Board there is
attempted
authority
to extend its
upon
assumption
power
general
than
one to be solved
the court without
foreign
over
and interstate commerce and guide other
proposition
than the
advanced
bargaining
over collective
between
by the
Supreme
statute and sustained
employee directly affecting
such com- Court as a valid exercise of constitutional
merce, leaving to the
Rela-
National Labor
authority, namely, that
bargaining
collective
in the first
tions Board
instance the deter-
is a matter for federal control where the
mination whether or not the establish- employees
activity
which
bargaining directly
ment of collective
af- directly affects interstate commerce. As a
partic-
fected interstate commerce in each
logic
matter of cold
may
it
be said that if
ular case. The conclusion of the Board the decrease
output
in the volume of
of a
upon the factual situation is made conclu- factory decreases the volume of interstate
upon
sive
courts. But the
pro
commerce it
directly
tanto
affects such
interpretation
constitutional
court to be
is one for
commerce,
cent,
whether the amount is 100
applied by
the facts
found
or one
cent. For in either case
by the National Labor Relations Board.
Court has decided that the
The ultimate fact found
the Board
direct,
effect is
and that the constitutional
output
that 39
of the re- power
attaches
But
thereto.
spondent enters
into interstate and
dealing
problem
we are not
with an abstract
commerce, for it
a mat-
must be Assumedas
mathematics,
prac-
but with one of the
ter of law under the decision of the
construction of the Federal
tical
Steel Co. concerning
rights
the relative
of states of
Case that
commerce the matter
the United States and of the individuals
directly
it,
of collective
affects
As the
concerned.
line of state and federal
Congress consequently
power
has
authority
somewhere,
must be drawn
I can
establish, protect,
to
to collective
and maintain the
logical
no other
see
division than that of
bargaining.
We
assume the line which determines which interest
if
line
a
can
drawn between the em- preponderates, foreign and interstate com-
ployees engaged
producing
goods for
hand,
the one
merce on
or domestic or in-
interstate and
commerce and those
commerce on the
trastate
other. Let it be
engaged in
for intrastate con- granted
entirely
that this conclusion is sumption, Congress
legislative
would have
satisfactory,
logical or
nevertheless it seems
power over the former and the state over
only escape
legalistic
to be the
from
for-
a
latter; but we
are concerned with a
which,
guise
under the
regulating
mulae
attempt
where no
situation
or
ees,
has been made
states, virtually
between
could be made
segregate
employ-
transfers
federal
sub-
where,
juris-
because of that fact
stantially
power
pertains to
all the
which
is asserted
employees,
diction
over all
thus
sovereignty
have been tra-
reversing
in effect
the rule that federal ditionally
exercised
each of them ever
power
clearly appear
before its exer-
adopted.
the Constitution was
since
This
justified.
may agree,
cise is
We
upon
the Su-
grant
formula is not based
the clear
decided,
Court has
that control over
power Congress
over interstate com-
manufacturing
merce,
be asserted be-
what is held to be
nec-
a cessation of its
essary
cause
activities on
incident
I recognize
account
thereto.
my
of a strike would diminish
interstate
logic
the volume of
and discernment of
associates
case,
but to hold
but I
that the this
cannot assent thereto be-
proves
much,
exercise of
entirely
extends to the
cause
too
intrastate
and this
products,
them,
producing
my opinion
and labor
ignores
is to because in
a vital
step away
take another
problem,
the direct and essential element in the
ing the various raw materials of
spondent. Therefore,
we
box
in this brief
are
ees who
commerce. We do not deal here with the
shipping
riers destined for
ished
We are not concerned with
respondent’s
shipping
side of
gaged
are the warehousemen who
ultimate destination.
ent’s business in which it
duties of these
here
loading.
the nature of
countries;
tually
among the several
involved are
course
are an
tinuous flow of
that all
ployees
loaded
conveyance.
*5
be denied.
cease and desist
tioner’s brief
to all the
ciates
is,
conclude
opinion apparently applies
as warehousemen at
for an
[*]
“It is to be noted that we are concerned
“In a.
“Thus the
“Approximately
deal
Thus
processed.
cars, trucks,
petitioners
only
the course of
over
do,
[*]
start all of the
Relations Act
enforcement
and conduct-of
superior
Board relates to
California and
daily
here
integral part
actually ship
respondent’s
its finished
concluding finding with
employees of the
far
that the order
* * *
with that
countries.
actually
and that the warehousemen
its internal affairs.
business which the
engaged in
it is
are
I have
respondent’s business and the
into the various
employees
aforesaid
who are
employees the Board found
respondent
trade,
application
order
and other interstate car-
points
solely
emphasized
application of the
employees
states,
interstate and
order in this case
3,000
packing,
dominant
phase
transportation to their
products
in their brief that:
assumed,
finished
They
respondent’s products
* * *
traffic and
we do not
of such
such commerce and thus limited.
the Oakland
quoted in
of the Board relates
engaged
employees engaged
in other states and
those
foreign
here involved ac-
constitutes a'con-
operations in
U.S.C.A.
and with
respondent.
to all
4,000
do all
here involved
to states out-
products
loading, and
the National
who
with whom
engaged
vehicles of
I therefore
commerce.
countries.
phase
the order v.
cases.are
my
products
consider
respond-
process-
employ-
the em-
the re- enforcement order should be
of such
are
§§
foreign in their brief limit
should
Board
plant.
asso-
main ed in
151— at its Oakland
here to the
peti-
fin-
the I think the
en-
granted
ployees
ping
interpretation of
clined, however, to think that the Board’s
dealt
our enforcement order.
respondent’s product should be observed in
to cease and desist is concerned.
land
effect thereof
Board is concerned and so far as the order
a constitutional
sustained the
advanced before the
sequently,
themselves
which activities we are not here concerned.”
rectly
noring
gaged
U.S.
argument we
of their interstate character.”
gaged in
manufacture
vest its
sional
consequently
527;
involved are
and are
Remedy
* * v
of the
employees,
Sioux employees here involved are divorced from
*11
166)
applied
Hays,
Ogden,
applied
In
In
products
“For the
“The
“The
Southern Operating
affect interstate
view of
my opinion
warehousemen
they thought
regulation
respondent.
in
the fact that
operations
fact that the
activities of the