The Charlotte News

Sunday, May 15, 1938


Site Ed. Note: ...Also see June 30, 1940 re yesterday, yesterdaye, and, not unlikely, today...

Ah, but tomorrow?

"The Halt in Lynching" brings up a recurrent theme for Cash, the ability of law enforcement anywhere to stem, to hold back the vigilante's seeming resistless tide--seeming so of course only of the moment as the particular law enforcement accords sympathy to the vigilante, to save paperwork for themselves and all those endless tax dollars of their own for appeals, you see. All merely to accomplish the inevitable, to see to it that the fellow who they knew was a criminal all along, even before they arrested him on the speeding ticket this time, got his just deserts. (See, e.g., for comparison, of a not so willing backwater, "North Carolina Faces the Facts", Baltimore Evening Sun, August 29, 1935. See also...1964.)

For more on Lizzie Dilling... On second thought, you may search that out for yourself if you've a mind. Makes us dizzy.

"Man on a Quagmire"... We are going to take you through an exercise on that one. Fasten your safety belts, for the road is so unearthly smooth that you will no doubt wish it had a few bumps to insure you are still a sensate being.

We cannot all be writers and poets, mind you, in our critiques and criticisms, but, by switchy, that below could have used at least a little spicing up.

Not so.

Perhaps, the beef-growers to whom it was written, and the commission men, and the corporatistas, sometimes being on the laconic, dry side themselves, were believed not to understand anything the least bit polysyllabic or poetic, and so the result doth occurreth. But, we suspect that they did and would have themselves perhaps, some of them, appreciated something less laconic and dry.

Perhaps, insofar as the Supreme Court decision was concerned, anent which it all was, it took coming to the Court, not only Hugo Black, but also William O. Douglas in 1939, the latter from the SEC, to give it some much-needed poo-etry again, after the departure of Justice Holmes--else we all wind up by opining's end snoring roundly.

Anyhow, we discovered, in this dry and colorless exercise, dispute to our fanciful notion that the "stock-yards case", to which Hugh Johnson had adverted on the editorial page of May 12 and from which he had gleaned that Henry Wallace, as Secretary of Agriculture, had been roundly excoriated by Chief Justice Hughes, to the point of saying the Supreme Court had taken to task the "Nazified Third New Deal", was a pink elephant. It wasn't.

It was the case of Morgan v. U.S., 304 US 1, decided April 25, following a previous decision in the same case from 1936 found at 298 US 468. 'Twasn't our fault we didn't find it, we suggest, as it was overlooked by whomever the Secretary were who omitted it from the list of the Reporter, number 304, at the search engine on Now maybe all of those numbers in searching things that way, numbers between pages 1 and 9, become eliminated. We don't know. Maybe we have discovered an imperfect glitch in the silicon chips which carries over to all search engines. Maybe the lesson is, "the slow one now will later be fast". While the royal "smart" one will be left to wonder. Who knows? We could have of course done things the slow way and gone over to the book library where they have those law books and sat and looked through reporter number 304 manually, as sometimes we have been wont to do, but since you'd have to pay us a decent wage to do that for you, we didn't feel of a mind. (And if we did and you didn't, why then we'd have to go on a sit down strike, and strike our hammers some, maybe even take over your whole damned plant, which you wouldn't like. So...)

But what we did do, in going over to the library where they have all the other books, and browsing the New York Times for May 1, 2, and 8, 1938, and then getting the name of the case from it to get to the case the other way 'round, was to discover this: the Court does mildly criticize the procedures used by Wallace in a case of review of maximum rates set for the stock-yards in Kansas City, a case which came to him shortly after assuming his post in 1933, after the rates had been previously set under the Hoover Administration, based on laws passed under Harding (and his wife and the girl next door back in Marion--Pierce that riddle, EH?), allegedly discriminatorily so. Wallace conducted a thorough review and then made some adjustments in the rates, as he tells us below, to the advantage of the commission men who set those rates on behalf of the stock-yards, but otherwise approved the previous setting, which had been criticized for being overzealous in allowing exorbitant charges, having been set in 1929 before the Crash, and thus, afterward, being effectively punitive to the beefgrowers, resulting from the leveling of livestock prices to half their levels prior to the Crash.

The stock-yards appealed the finally altered decision of Secretary Wallace, however, on the ground that Due Process procedural requirements for a fair hearing had not been met.

The Court agreed, 6-1, with Justice Black dissenting without opinion (and not surprisingly so).

But, the language set forth is rather routine, not so damning as Johnson's editorial of May 12 would suggest, nor indeed as the New York Times somewhat sensationally suggested in its editorial of May 2 from which you may glean the representative quotes out of the front page story of May 1, to both of which Wallace made his dry response.

So we shall reproduce the heart of the opinion below for your independent assessment, the letter to the editor from the Times of May 8 by Secretary Wallace, and the original editorial from May 2 mentioned at the start of the letter. (We might even have a mind to reproduce the front page article in a day or two when our head stops reeling from this dry stuff.) It is an exercise sure to make you sorry you ever heard of a "stock-yards" case in the first place, but if you are into beef or thinking of becoming a lawyer, or even if you're not, get used to it...

It perhaps all goes to show how much ado about little sometimes gets everyone in a stir, seemingly to fill space in a newspaper. But, of course, it was important to the beefgrowers and the commission men and the corporatistas, and most especially therefore to our beefy little tummies in need of all those burgers and steaks.

The point made by Cash in "Man on a Quagmire" below probably, however, being the soundest notion to come from it all, at least in our opinion.

He adopted, shall we say, the "middle way".

When we see board mentioned so many times, incidentally, our eyes at least realize the ride ahead is all wheat field plain and therefore tend to glaze, as if we are being shown a prison cell in which to spend an hour awaiting our parole hearing. And we may fairly well rest assured that it is going to be rather a rather boring affair--and it is, unless at least one may spice it a little. But, without the wheat fields, we wouldn't have bread or cereal and so...

And it is also a good exercise to follow in understanding the humorous process, though sometimes not so to the people involved, of the slow accretion of stories from little to large, bent out of shape by the end result, as a rumor flies ear to ear to go from ants to elephants.

So read it all, if you want.

We are going to go put some hamburgers on the grill, quite frankly, ourselves, it being Friday, we being behind in our recitation exercises, having stopped to catch our breath a little, and so looking forward to a busy weekend, wildly so, ahead. By the way, if you catch some remaining typos in that below, especially that by the Secretary, pardon us. But having walked through this dry stuff twice already, we shan't be punishing ourselves with a third run through, having gleaned, we believe, enough wheat from it, a most thorough understanding, more than we shall ever need, from Secretary and later Vice-President Wallace re his obvious central point: that he agreed wholeheartedly with the Chief that the commission men needed something at which to shoot before coming before the Secretary, and so he should have issued his proposed order to them in advance.

Come to think of it, he wasn't half so dry after all as we at first thought.

But he was obviously pretty dry.

Which is not to say we haven't always liked him; we always have.

And there can be repetition in poetry, poetry in repetition. We think we read that somewhere.

And while about it, don't forget that the Washington correspondent for the Times at the time was Arthur Krock...

First, the excerpt of the opinion by Chief Justice Hughes:

In the light of this testimony there is no occasion to discuss the extent to which the Secretary examined the evidence, and we agree with the Government's contention that it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions if he gave the hearing which the law required. The Secretary read the summary presented by appellants' briefs and he conferred with his subordinates who had sifted and analyzed the evidence. We assume that the Secretary sufficiently understood its purport. But a 'full hearing'--a fair and open hearing--requires more than that. The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasijudicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command.

No such reasonable opportunity was accorded appellants. The administrative proceeding was initiated by a notice of inquiry into the reasonableness of appellants' rates. No specific complaint was formulated and, in a proceeding thus begun by the Secretary on his own initiative, none was required. Thus, in the absence of any definite complaint, and in a sweeping investigation, thousands of pages of testimony were taken by the examiner and numerous complicated exhibits were introduced bearing upon all phases of the broad subject of the conduct of the market agencies. In the absence of any report by the examiner or any findings proposed by the Government, and thus without any concrete statement of the Government's claims, the parties approached the oral argument.

Nor did the oral argument reveal these claims in any appropriate manner. The discussion by counsel for the Government was 'very general,' as he said, in order not to take up 'too much time.' It dealt with generalities both as to principles and procedure. Counsel for appellants then discussed the evidence from his standpoint. The Government's counsel closed briefly, with a few additional and general observations. The oral argument was of the sort which might serve as a preface to a discussion of definite points in a brief, but the Government did not submit a brief. And the appellants had no further information of the Government's concrete claims until they were served with the Secretary's order.

Congress, in requiring a 'full hearing,' had regard to judicial standards--not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature. If in an equity cause, a special master or the trial judge permitted the plaintiff's attorney to formulate the findings upon the evidence, conferred ex parte with the plaintiff's attorney regarding them, and then adopted his proposals without affording an opportunity to his opponent to know their contents and present objections, there would be no hesitation in setting aside the report or decree as having been made without a fair hearing. The requirements of fairness are not exhausted in the taking or consideration of evidence, but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps.

The answer that the proceeding before the Secretary was not of an adversary character, as it was not upon complaint but was initiated as a general inquiry, is futile. It has regard to the mere form of the proceeding and ignores realities. In all substantial respects, the Government acting through the Bureau of Animal Industry of the Department was prosecuting the proceeding against the owners of the market agencies. The proceeding had all the essential elements of contested litigation, with the Government and its counsel on the one side and the appellants and their counsel on the other. It is idle to say that this was not a proceeding in reality against the appellants when the very existence of their agencies was put in jeopardy. Upon the rates for their services the owners depended for their livelihood and the proceeding attacked them at a vital spot. This is well shown by the fact that, on the merits, appellants are here contending that under the Secretary's order many of these agencies, although not found to be inefficient or wasteful, will be left with deficits instead of reasonable compensation for their services, and will be compelled to go out of business. And to this the Government responds that if as a result of the prescribed rates some agencies may be unable to continue, because through existing competition there are too many, that fact will not invalidate the order. While we are not now dealing with the merits, the breadth of the Secretary's discretion under our rulings applicable to such a proceeding, Tagg Bros. & Moorhead v. United States, 280 U.S. 420 , 50 S.Ct. 220 [Are we paying attention, class? Yes...]; Acker v. United States, 298 U.S. 426 , 56 S.Ct. 824, places in a strong light the necessity of maintaining the essentials of a full and fair hearing, with the right of the appellants to have a reasonable opportunity to know the claims advanced against them as shown by the findings proposed by the Bureau of Animal Industry.

Equally unavailing is the contention that the former Secretary of Agriculture had made an order in May, 1932, containing findings of fact and fixing a schedule of rates, of which appellants were apprised. Because of changes in economic conditions, the Secretary himself had set aside that order and directed a rehearing. This necessarily involved, as the Secretary found, a consideration 'of changes both general and particular' which had 'occurred since the year 1929' and brought up all the questions pertinent to the new situation to which the additional evidence upon the rehearing was directed. The former findings and order were no longer in effect, and it is with the conduct of the later pro [?] that we are concerned.

The Government adverts to an observation in our former opinion that, while it was good practice--which we approved--to have the examiner, receiving the evidence in such a case, prepare a report as a basis for exceptions and argument, we could not say that that particular type of procedure was essential to the validity of the proceeding. That is true, for, as we said, what the statute requires 'relates to substance and not form.' Conceivably, the Secretary, in a case the narrow limits of which made such a procedure practicable, might himself hear the evidence and the contentions of both parties and make his findings upon the spot. Again, the evidence being in, the Secretary might receive the proposed findings of both parties, each being notified of the proposals of the other, hear argument thereon, and make his own findings. But what would not be essential to the adequacy of the hearing if the Secretary himself makes the findings is not a criterion for a case in which the Secretary accepts and makes as his own the findings which have been prepared by the active prosecutors for the Government, after an ex parte discussion with them and without according any reasonable opportunity to the respondents in the proceeding to know the claims thus presented and to contest them. That is more than an irregularity in practice; it is a vital defect.

Now, the editorial from the Times of May 2:

"Rudimentary Fair Play"

The Wagner Labor Relations Act declares that in hearings before the Labor Board or its examiners "the rules of evidence prevailing in courts of law or equity shall not be controlling." The presumptive purpose of this provision was to remove red tape and to permit a certain amount of dispatch and flexibility in the board's procedure. The board and its examiners, however, appear in instance after instance to have interpreted this as exempting them from the obligation to give a full, fair and two-sided hearing to the facts, and employers have frequently been denied the elementary procedure or rights the lowest criminal enjoys in a court of law.

A week ago the Supreme Court, in the Kansas City stockyards case, held (with Justice Black alone dissenting) that Secretary Wallace, in promulgating maximum rates for marketing agencies at the stockyards "without a fair hearing," committed "more than an irregularity in practice." The court threw out the order as "fatally defective." "In administrative proceedings of a quasi-judicial character," said Chief Justice Hughes, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play.***Congress, in requiring a 'full hearing,' had regard to judicial standards--not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of judicial nature."

This decision seems to have had a remarkable effect on the Labor Board. The board's general counsel has disclosed to the Federal Circuit Court of Appeals that it is "seriously considering" the rescinding of orders against the Republic Steel Corporation and the reopening of the Republic and several other cases under a modified procedure.

The board has also taken steps to open its inquiry into the labor practices of the Ford Motor Company, acting after counsel for that company had sought to take testimony from members and aides of the board to sustain the charge that the company had not had a full, fair and open hearing. In serving notice of its intention to withdraw the petition to enforce its order against the company in December the board now itself declares that "the purpose of this motion is to eliminate certain issues as to the validity of the board's procedure in a case." It is hard not to accept the interpretation of one of the Ford lawyers that, "in plain English, this means that by withdrawing its suit [the board] hopes to avoid an investigation of the manner in which it arrived at its decision in the Ford case and the submission of its procedure in that case to the scrutiny of an impartial court."

The case seems to come down to this. In a deplorable number of instances there has been no semblance of fairness in the procedure of the board and its examiners. As a result of the Supreme Court decision there will in future apparently be such a semblance of fairness. But this does not mean that there will be the essence of fairness. It is impossible to see how that essence can exist under the Wagner act as at present drawn. That act is crammed with "unfair labor practices" which it forbids on the part of employers, but it does not declare a single labor practice to be unfair on the part of unions. The board has held at various times, in effect or specifically, that irresponsibility on the part of unions, strikes called in violation of contract, coercion or intimidation of employes to join unions, sit-down strikes, mass-picketing and physical seizure of plants, are all "irrelevant" when considering the duty of employers to "bargain collectively." It is difficult to know whether to blame the board or the act which created it for some of these decisions. But they violate all elementary principles of justice, and in practice have proved to be economically demoralizing.

Secretary Wallace Explains Kansas City Rate Decision

Head of Department of Agriculture Sees No Rebuke in the Hughes Pronouncement, but
Believes Livestock Men Have Suffered Injustice

To the Editor of THE NEW YORK TIMES:

THE NEW YORK TIMES on pages 1 and 2 of the Sunday issue of May 1 and on the editorial page of the issue of May 2 unwittingly committed an injustice against the Department of Agriculture and the present Secretary of Agriculture. According to THE NEW YORK TIMES the decision in the Kansas City rate case handed down on April 25, "Rebuked Wallace" and "intimated that the stock yards company was unfairly treated." In another place, THE NEW YORK TIMES says, "the Supreme Court held that Secretary Wallace had accepted as his own the findings of the 'active prosecutors for the government' and not given the Packers the right to a full and fair hearing in the proceedings, which involve the establishment of maximum rates for livestock sales commissions in Kansas City."

It is not surprising that reporters for THE NEW YORK TIMES, who are undoubtedly among the best in the country, should have been deceived. I found that even the most prominent people in the Administration, whose duty it is to keep up to date on current affairs, were misled by the curious way in which the April 25 decision of the Supreme Court was written by Chief Justice Hughes. The court's cloudy phraseology was made necessary by the fact that two years previously the Chief Justice in the same case had taken a different stand and there was necessary a careful job of legal rate reconciliation which confused the clarity of thought.

Practice Followed

The very heart of the decision as stated by the Chief Justice in his April 25, 1938, pronouncement I believe to be sound. This has to do with furnishing the business men a definite order or set of findings, so that they may have something to shoot at before they appear in final argument. I agree that the practice followed in previous Administrations was unfair, and I am glad to say that nearly two years ago this department established the procedure which the Supreme Courthouse says is necessary.

It is interesting to note that the particular error of omission on which the Chief Justice hangs his decision was committed not by this Administration but by the previous one. It was the Solicitor of the previous Administration who failed in February or early March of 1933 to send out the order to the commission men so that they would have something definite to shoot at when they came into the oral arguments on March 24, 1933. I do not blame the Solicitor, because he was merely following the practice established in preceding Administrations. Old Deal lawyers did not have the opportunity of thinking so continuously about the problems of administrative law. Under the New Deal there has been much thought about perfecting procedure of administrative law to insure fair play.

Credit to Dr. Mohler

Dr. John R. Mohler, Chief of the Bureau of Animal Industry, one of the most respected and fairest-minded men in the government, deserves credit for helping to bring about the necessary change in practice long before this decision of the Chief Justice in 1938. It is interesting to note that in May of 1936, when this case was up before the Supreme Court on a prior hearing, the Chief Justice in the opinion which he handed down was not particularly concerned with whether or not an order had been sent to the commission men.

On that occasion the one matter which seems to have concerned him above everything else was whether or not the Secretary of Agriculture had sufficiently studied the evidence. To determine this point he sent the case back to the lower courts and asked that an investigation be made. An investigation was made, the Secretary of Agriculture was cross-examined and this point is settled to the Chief Justice's satisfaction.

Incidentally, I may say that Dr. Mohler tells me that I gave this case more personal attention than any previous Secretary of Agriculture had ever given to any case under the Packers and Stock Yards Act or for that matter to any half-dozen cases. The Chief Justice in his 1938 decision quotes the statement in my testimony to the effect that I conferred with the men of the Bureau of Animal Industry and then reached an independent conclusion as a result of which I changed certain rates (in favor of the commission men, as it happens, although the Chief Justice did not so state).

Formed Own Opinion

The men of the Bureau of Animal Industry were of very real assistance to me in digesting the 10,000 pages of oral transcript and studying carefully the 1,000 pages of statistical exhibits. It was right that I should rely on them, because these men were employed among other things for just such a purpose. They were not the active prosecutors in the case, as has been assumed.

In 1928 the then Secretary of Agriculture divided the Packers and Stock Yards Administration into two parts. The legal part, composed of the active prosecutors, went to the Solicitor's office; the administrative and investigational section went to the Bureau of Animal Industry. I conferred separately and collectively with both groups. Their opinions did not agree. I arrived at an independent opinion of my own.

All of this, however, is quite irrelevant and would not be in the 1938 decision at all if it had not been for the fact that in 1936 the Chief Justice sent the case back to the lower courts to find whether or not the Secretary of Agriculture had given the case sufficient personal study. Having found that the Secretary of Agriculture had given the case personal study, he shifted ground and placed the blame for the vital defect on the previous Administration, although in such words that the most skilled reporter or headline writer could arrive at no other conclusion than that the present Administration had been rebuked.

The confusion arises from the fact that in the decision the words, "Secretary of Agriculture" referred to several different individuals and two different Administrations and the distinction would not likely be caught by anyone who is not in the Department of Agriculture.

Because of the fact that the Kansas City Rate Case decision is certain to have a far-reaching significance to governmental quasi-judicial agencies, I have in the following sketched the background of the legislation and the case involved.

Market History

Twenty years ago Senator John B. Kendrick of Wyoming, D. W. Tomlinson, Secretary of the American National Livestock Producers, and Henry C. Wallace, my father, who was secretary of the Corn Belt Meat Producers Association, worked together strenuously for what they believed to be a new deal for stockmen at the great central markets. Previous to 1921 livestock marketed at the central markets was not subject to Federal regulation. The stockmen felt charges were too high and that many other practices were unfair. They tried cooperative marketing agencies, only to have them boycotted and destroyed. I myself had done statistical work for the Corn Belt Meat Producers Association, and had written editorials on the need for Federal regulation.

When my father became Republican Secretary of Agriculture in 1921, his greatest interest was to bring about the passage of the Packers and Stock Yards Act. When the act became law he set up in the Secretary's office an administrative force. This was set up in the Department of Agriculture one of the first of the quasi-judicial agencies. At that time, aside from the Interstate Commerce Commission and the Federal Trade Commission, there were not many such agencies in the government.

As time went on corporation lawyers more and more developed a feeling that these governmental agencies were unfair. The point they made was that the government was simultaneously investigator, prosecutor and judge. And yet the growing power of corporations and increasing complexities in modern economic life made the increased development of semi-judicial, semi-executive agencies inevitable.

Changed Procedure

Perhaps it was this growing feeling on the part of corporation lawyers which led the Secretary of Agriculture in 1928 to take the Packers and Stock Yards Administration out of the Secretary's office and put the prosecuting functions in the Solicitor's office and the fact-finding and administrative functions in the Bureau of Animal Industry. It is a curious comment on human affairs that the resentment which corporation lawyers had long held against quasi-judicial agencies in government should have received its most effective support from the Supreme Court in terms of condemnation of the action of an agency which had gone the whole way toward meeting the Supreme Court's objections.

I find this whole matter of unusual interest because two of the six justices who voted to take this action sat in the same Cabinet with my father in the early Twenties. Both of them undoubtedly knew that the Packers and Stock Yards Act was an integral part of the Republican agricultural new deal of 1921. Both of them are doubtless familiar with the way my father had set up the original Packers and Stock Yards Administration. But it is doubtful if either of them knew about the change in 1928 when the Secretary allocated the legal functions to the Solicitor's office and the other functions to the Bureau of Animal Industry.

While I believe that knowledge of this fact would have caused some difference in the phraseology of the opinion, I did not intend that this knowledge would have reversed the verdict, because I am convinced that both liberals and conservatives on the court were eager to use the first opportunity to give a warning to the new or quasi-judicial agencies.

Hyde Set Rates

Really vigorous action in the reduction of commission rates did not begin until the depression of 1930. As the depression deepened, farmers became more and more disgusted to see commission rates held up nearly to the 1929 level, when the price of their livestock had been cut in half. They brought great pressure to bear on Assistant Secretary of Agriculture Dunlap, whom the Secretary, Arthur M. Hyde, had assigned to deal with such matters.

In April 1930 Secretary Hyde ordered that the Kansas City commission rates be looked into. A representative of the Solicitor's office and the Department of Agriculture acted as an examiner, and took evidence in late 1930 and early 1931. Commission men appeared as witnesses, so also did investigators of the Bureau of Animal Industry. In March of 1931 oral arguments were held before Assistant Secretary Dunlap and in the Spring of 1932 the Secretary issued his findings and an order prescribing new rates.

Within a short time, however, the Secretary reached the conclusion that because of changed economic conditions these rates would not be enforced, but a new hearing would be held. The economic conditions had, of course, gone from bad to worse, and it is to be presumed that the then Secretary of Agriculture felt the rates in his order were too high, and that a review of the economic situation would result in still lower rates. At any rate, an examiner was sent out from the Solicitor's office in the Fall of 1932 and both old and new evidence was submitted.

When the Democratic Administration came in in March of 1933, the function of listening to oral arguments under the Packers and Stock Yards case was still set up in the Assistant Secretary's office. On March 24, therefore, Rex Tugwell, the new Assistant Secretary of Agriculture heard the oral argument with regard to the Kansas City rate case. Previous to that time, however, there occurred that which Chief Justice Hughes describes as a "vital defect" in the hearing. This defect, for which the previous Administration was solely responsible, consisted of the following: The commission men had not been given the right to look at the proposed order before they came to the argument.

Personally, I agree with Justice Hughes in this particular contention, as is shown by the fact that in 1936, nearly two years before Chief Justice Hughes's finding, I signed an order providing for procedure to enable appellants to see a proposed order at least twenty days before the oral argument. When I side with the Chief Justice in this conclusion I am not necessarily criticizing those who were Solicitors in the preceding Administration and who felt that a full hearing did not require giving the commission men the right to see the order in advance so they would have something definite to shoot at in the oral argument.

But if the Solicitor of the preceding Administration could have had some sense of prophetic warning he could have saved to the farmers of the Kansas City area at least $700,000 which rightfully belongs to them and which will now go to the commission men and their attorneys.

So far as the Packers and Stock Yards Administration of the Department of Agriculture is concerned, the Supreme Court in its decision of April 25, 1938, has not served a useful purpose. We had already made the reform which the Supreme Court says should have been made by the preceding Administration.

So far as the farmers are concerned, they lost $700,000 which had been impounded as the difference between the rates established in the Secretary's order of 1933 and the old Kansas City rates based on the 1929 conditions.

So far as other quasi-judicial agencies in the executive branch of the government are concerned, it would seem that each must discover its own way and appropriate mechanism for showing a full hearing to business men and corporations. In Packers and stock yards procedure I was able to assure such a full hearing by making it a requirement that the proposed order be sent to the interested parties by registered mail at least twenty days in advance of time for oral argument. In the case of the Packers and Stock Yards Administration I do not anticipate that this requirement would result in any unnecessary embarrassment or delay.

Public Needs Protection

I can concede, however, that with respect to certain fields of government activity corporation attorneys and reactionary judges might conceivably use this finding of the Supreme Court greatly to the advantage of the corporations and greatly to the disadvantage of the public. It would seem as though there is just as great a need for the public being fully and fairly heard as there is for the corporations.

In the Kansas City rate case the Supreme Court finding has the effect of doing a definite injustice to the public. Two extended sets of hearings before examiners were held, one in early 1931 and the other in late 1932. Two oral arguments were held, one in early 1931 and the other in early 1933. The findings were made and two orders were signed, one in May of 1932 and the other in June of 1933.

The change in economic facts between the examination of early 1931 and examination of late 1932 was such as to justify lower rates rather than higher rates. Furthermore: in November of 1937, when economic conditions were materially better than in 1931, 1932 or 1933, the Kansas City commission firms voluntarily accepted rates almost identical with my order of June, 1933.

The evidence is clear, therefore, that the Supreme Court in order to flash a warning to quasi-judicial agencies in the executive branch of the government did that which those of us who were close to the industry know to be a definite injustice to the farmers involved. It will be exceedingly unfortunate if corporation lawyers take the finding of the Supreme Court as an excuse to bring about the interminable delays for which some of them are famous.

Injustice to Farmers

The final court of appeal in the United States is to the bar of public opinion. In bringing this present case before the bar I would raise the question as to the extent to which a court in its desire to call public attention to certain trends in public policy should permit itself to do a substantial injustice to a considerable number of citizens--in this case the farmers who had sent livestock to the Kansas City market from June of 1933 to November of 1937. They were harmed to the extent of more than $700,000 in order that the court might make it known that in quasi-judicial proceedings orders should be formulated and sent out to the appellants that they might have something to shoot at when the time came for oral argument.

With regard to this point I have no quarrel with the Chief Justice. But it does seem that he could have done justice to the farmers and at the same time have issued this warning. I trust the day will come when the Supreme Court will recognize a menace far greater than that contained in any of the quasi-judicial agencies--namely the tendency of some corporation lawyers and courts to drag out their proceedings to an interminable length.

In conclusion, we may well ask whether the court was interested in the case primarily from the standpoint of doing justice as between farmers and commission men in the Kansas City territory or in using a convenient pet on which to hang a statement encouraging lower courts to attack and delay the actions of quasi-judicial agencies. As I said before, I agree fully with the Chief Justice about the fairness of sending out orders in advance of final oral argument in order that the appealing parties may have something definite to shoot at. But if the obiter dicta in this case is to be taken as an excuse for delay by the lower courts it is high time that the whole matter be agitated to the utmost before the bar of public opinion.


Washington, D.C., May 3, 1938.

Man Says No

Bob Reynolds, who made the front page of every newspaper in the land by bussing the late Jean Harlowe on the steps of the Capitol, has turned down a request for a repeat performance. The managers of Miss Olympe Bradna, 17-year-old (and luscious) movie starlet, thought it would be a smart publicity stunt if Miss Bradna could be kissed too, and they propositioned Robert.

Nothing doing, he said; and they saw that he meant it. He was out of the picture, he declared, weakening only slightly when Miss Bradna's undoubted kissableness was put to him. But he was resolute, and Miss Bradna's managers regretfully left to think up another sure-fire act, which turned out to be shaking hands with Mrs. Roosevelt.

Well, we know of no profound concessions to be drawn from the embrace that didn't come off except, possibly, that this is a campaign year and that circumstances alter kisses.

Wish and Reality

"Instead of letting wages be reduced," bellowed John L. Lewis to the Amalgamated Clothing Workers, "we will force wages higher and higher." Well, it suits us, who subscribe to the theory that the laborer is worthy of his hire and that the division of income between capital and labor ought to favor the latter. At the same time, it's a good thing that Mr. Lewis was addressing clothing workers and not, say, textile workers or railroad workers.

For textile workers appreciate all too keenly at the moment that talk about wages is more or less academic when no wages at all are coming in. And railroad workers, though they reject vehemently any suggestion of a cut, must have an uneasy hunch that the roads can't continue indefinitely to pay out more than they are taking in. Already the roads have filed notice of a wage cut.

Against such grim realities as are to be found in the railroad and textile industries, organized labor's opposition to reductions in wages is bound to be fruitless. We say it sadly, for there probably isn't any class of employers nowadays who wish more ardently to keep wages up and operations going than the railroads and the textile mills.

Man on a Quagmire

Mr. Henry Wallace, Secretary of Agriculture, may have something there when he argues in his letter to Chief Justice Hughes that the Supreme Court's decision in the stock-yard case can't possibly be considered, as it has been generally interpreted, a direct rebuke to himself. He says that the case in question originated in 1930, when Herbert Hoover was President, and under a law passed in 1921; and that it was himself (Wallace) who, two years ago, first set up and began to apply the rule that Justice Hughes insisted on in the decision. Still, how did it happen that the rule had been applied in this case, which, under whatever auspices it had begun, was certainly mainly carried through under Mr. Wallace?

But granting Mr. Wallace the soundest ground here, he is surely on miry terrain when he takes the Chief Justice to task for having changed his mind about the matter since 1936. Suppose it is true that Mr. Hughes has changed his mind? Isn't it true that Mr. Hughes and a lot of other members of the Court have changed their minds about a great many things since 1936? About the Wagner Act for instance? About the New York State wage and hour law? About all sorts of legislation sponsored or approved by the New Deal? Isn't it a fact, indeed, that the New Dealers have brought every ounce of possible pressure to bear to make the judges change their minds? That they have constantly claimed that the fight over the Court Bill itself really ended in victory for the New Deal, and that it did perhaps help to change the minds of Mr. Hughes and the other judges?

Or isn't the thesis of Mr. Wallace that the goodness or wickedness of a change of mind may be determined by whether or not it is for or against the New Deal?

The Halt in Lynching

We haven't all the figures at hand, but unless we are greatly wide of the mark the South has gone longer without a lynching than at any time since accurate figures began to be kept in 1880--probably longer than in any time since Reconstruction began. Certainly, this year has gone farther without a lynching than any recent year. Thus 1937 had one so early as February 2; 1936 had one on March 14; 193[5], January 11; and 1934 on January 24. But it is not only this year. The last lynching in all the land under the Potomac occurred on October 3, 1937, in Milton, Fla., 231 days, or within nine days of eight months, ago! Let the country but hold to that record for 134 days more and after 70 years it will at last have passed a whole year innocent of mob murder.

It can be done. In the last eight months, every one of the crimes, real or imaginary, in which lynching ordinarily finds its excuse, has been committed over and over in Dixie. There have been rapes of white women by Negroes, attempted rapes of white women by Negroes, and many, many more allegations of rape or attempted rape of white women by Negroes. There have been murders of white men by Negroes. There have been murders of white police officers by Negroes. Negroes have struck white men with clubs, cut them with knives, cursed them, talked back to them, talked back to white women--all grounds on which Negroes have often been lynched. More--there have been many attempts at lynching in Dixie in these eight months. Many mobs have formed to get their man. And if they haven't in a single case got him, it is due ultimately and finally to just one thing--

Police officers can put down lynching whenever they genuinely choose. How saliently true that is, you may observe from two things in the record for 1937: (1) that out of 80 attempts at lynching, police officers foiled all but eight; (2) that in the eight successful lynchings, all but one of the victims were taken from police officers who had ample warning of what was to happen, who in every case at least tacitly acquiesced in the crime, and who in several cases seem actually to have participated in it.

And so we can safely guess that if the mob has nowhere got its man, it is due to the fact that the officers have been choosing that they shouldn't. And such a choice on the part of the police itself testifies pretty conclusively to an aroused opinion among the "best people" in the areas where lynching has been most common, for ultimately the actions of the police depend on these "best people." If they are acquiescent, tolerant, indifferent, then the police let ignorant and vicious men go on with the old vicious practice entrenched in tradition. If they are aroused and demand that the practice be stopped, it is stopped. Possibly, quite probably, the education over the anti-lynching bill, and the soul-searching it set up among all intelligent people in the South, had a lot to do with the result we are seeing. But in any case whatever, it is as plain as your nose that if the South can put down lynching for eight months, it can, for practical purposes, put it down for good and all.

The Peace Mask

We were almost fetched today by a new "peace" organization which, according to one of the unsolicited releases that flood our desks, has now been added to the forty-odd such organizations already flourishing among us. There was a title to make our blood leap--American Patriots, Inc. And there was the fact that this devoted band were out to keep down boycotts of Japan and our involvement in a war in the Far East, or any wars at all.

But now our cortical cells are, we discover, not quite so convinced as our endocrine system. They call our attention to the fact that the first act of this "peace" organization has been to issue "an emergency message to the Mothers of America" which runs to this tune: "Awake and act before it is too late. Don't sell your son for a service star to a 'Defend-the-Soviet-Union clamor.'" And to advise the "Mothers of America" that our dislike for Japan's rape of China is due to an organized propaganda campaign financed with Moscow gold. They call our attention, too, to the fact that this "peace" organization says not a single word, in a release of 2,500 words, about fascism and its propaganda--though it seems obvious to us that just now fascism is a much more active menace to the peace of the world than Soviet Russia. And finally they call our attention to the fact that the Board of Governors of American Patriots, Inc., is heavily laden with well-known Red baiters, including the celebrated Rear Admiral Reginald R. Belknap and the even more celebrated Mrs. Elizabeth Dilling, author of the notorious "Red Network," which attempted to smear every liberal in the country, from Dr. John R. Mott down, as Bolsheviks plotting the overthrow of the Republic.

Hum; no. On second thought we think we shall not sign on the dotted line just yet.

Site Ed. Note: Here again, the whole editorial page for the date.

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