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Brief for Tway Coal Co. et al.

police power. Inasmuch as Congress has no police power in the respective States, it can attain the purposes which ordinarily call into play the exercise of the police power only as an incident to the legitimate exercise of some one or more of its granted powers. Therefore, if, in the exercise of its power to regulate interstate commerce, Congress seeks incidentally to promote the general welfare, through the fixing of prices of an article of commerce, certainly it can do so only if the fixing of such prices is permissible in the independent exercise of the police power. Congress cannot, in the regulation of interstate commerce, incidentally fix prices, unless such price-fixing would be a legitimate exercise of the police power by a legislative body possessing that power.

We think it is thoroughly settled that the legislative department is without power to fix either prices or wages, except in respect of those businesses affected with a public interest. The question has been many times before. this Court, and in each case the problem was to determine if the particular business was one affected with a public interest; and this is always a question for the Court. Wolff Packing Co. v. Industrial Court, 262 U. S. 522; Tyson & Bro. v. Banton, 273 U. S. 418; Fairmont Creamery Co. v. Minnesota, 274 U. S. 1; Ribnik v. McBride, 277 U. S. 350; Williams v. Standard Oil Co., 278 U. S. 235; Adkins v. Children's Hospital, 261 U. S. 525; Nebbia v. New York, 291 U. S. 502; New State Ice Co. v. Liebmann, 285 U. S. 262.

Distinguishing: Munn v. Illinois, 94 U. S. 113; German Alliance Ins. Co. v. Lewis, 233 U. S. 389; Wilson v. New, 243 U. S. 332; Block v. Hirsh, 256 U. S. 135; Marcus Brown Co. v. Feldman, 256 U. S. 170; Highland v. Russell Car & Snow Plow Co., 279 U. S. 253; Frost v. Corporation Commission, 278 U. S. 515; Stafford v. Wallace, 258 U. S. 495; Tagg Bros. & Moorhead v. United States, 280 U. S. 420.

Brief for Tway Coal Co. et al.

298 U.S.

As we understand the case of Nebbia v. New York, 291 U. S. 502, it does not discard the long established rule of this Court that price-fixing is justified only in respect of businesses affected with a public interest. It does hold that businesses affected with a public interest are not confined to public utilities or to businesses of a monopolistic nature, or to those in which the owner is bound to serve all who apply. It seems to us, however, that pricefixing in the milk industry, upheld in that case, was sustained because it was thought that the facts in connection with that industry in the State of New York clearly showed that the business had become affected with a public interest. The legislation there involved was an exercise of the police power, primarily in the interest of the health of the public, and the Court held that because of peculiar and unusual conditions in the milk industry, price-fixing had a reasonable relation to the object sought to be accomplished, which was the assurance of an adequate supply of wholesome milk to the public, and was not an arbitrary exercise of the police power.

No comparable conditions, however, exist in the coal industry. There is no threatened shortage in production. or supply. On the contrary, the only problem of the coal business is that which is incident to all business as to which at any given time there exists a capacity for production in excess of the market demand. If over-production and the consequent economic disorganization and distress of a business justifies price-fixing, then during periods of economic depression prices may be fixed by Congress in every important industry, the products of which move in interstate commerce.

Section 3 is not a revenue provision but an integral part of the illegal scheme to regulate the entire bituminous coal industry.

The Act delegates legislative power. If it be conceded that Congress has the power to deal with the mat

ters required by § 4 to be incorporated in the Code, it cannot delegate that power. Panama Refining Co. v. Ryan, 293 U. S. 388; Schechter Poultry Corp. v. United States, 295 U. S. 495. Inasmuch as the statute, for all practical purposes, compels all producers to become Code members, every producer is thus required to submit to hours of labor and wages, fixed by private persons, whether he participates in the fixing or not. The legislative department cannot authorize private citizens to thus deal with the rights of others. Eubank v. Richmond, 226 U. S. 137; Washington ex rel. Seattle Title & Trust Co. v. Roberge, 278 U. S. 116.

Mr. Karl J. Hardy submitted for Carter Coal Co. et al., respondents in Nos. 636 and 651.

Mr. Joseph Selligman submitted for respondent in No. 650.

By leave of Court, briefs of amici curiae were filed as follows:

Mr. Otto Kerner, Attorney General of Illinois, and Mr. Kent E. Keller, on behalf of the State of Illinois; Mr. Philip Lutz, Jr., Attorney General of Indiana, and Mr. Urban C. Stover, First Deputy Attorney General, on behalf of the State of Indiana; Mr. A. E. Funk, Assistant Attorney General of Kentucky, on behalf of the State of Kentucky; Mr. Frank H. Patton, Attorney General of New Mexico, on behalf of the State of New Mexico; Mr. John Caren, on behalf of the State of Ohio; Mr. Charles J. Margiotti, Attorney General of Pennsylvania, and Messrs. Grover C. Ladner and Edward Friedman, Deputy Attorneys General, on behalf of the Commonwealth of Pennsylvania; Mr. G. W. Hamilton, Attorney General of Washington, and Messrs. Geo. G. Hannan and E. P. Donnelly, Assistant Attorneys General, on behalf of the State of Washington; Mr. Henry Warrum, on behalf of

the United Mine Workers of America; and Messrs. A. M. Liveright, Thurlow G. Essington, John L. Steinbugler, and C. F. C. Arensberg, on behalf of members of the Bituminous Coal Code;-supporting the validity of the Act.

Messrs. Rolla D. Campbell, John W. Davis, E. L. Greever, Don Rose, Robert S. Spilman, Edwin S. S. Sunderland, Malcolm Fooshee, Walter T. Kinder, Wm. E. Stevenson, Edward E. Barthell, Lee C. Bradley, Jr., Henry E. Colton, Wm. C. Cherry, George T. Evans, Matthew C. Fleming, Virgil Y. Moore, J. Van Dyke Norman, Percy Allen Rose, and Morris H. Winger, on behalf of certain commercial producers of bituminous coal; and Messrs. Forney Johnston and Jos. F. Johnston, on behalf of certain producers of bituminous coal in the State of Alabama;-challenging the validity of the Act.

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

The purposes of the "Bituminous Coal Conservation Act of 1935," involved in these suits, as declared by the title, are to stabilize the bituminous coal-mining industry and promote its interstate commerce; to provide for cooperative marketing of bituminous coal; to levy a tax on such coal and provide for a drawback under certain conditions; to declare the production, distribution, and use of such coal to be affected with a national public interest; to conserve the national resources of such coal; to provide for the general welfare, and for other purposes. C. 824, 49 Stat. 991. The constitutional validity of the act is challenged in each of the suits.

Nos. 636 and 651 are cross-writs of certiorari in a stockholder's suit, brought in the Supreme Court of the District of Columbia by Carter against the Carter Coal Company and some of its officers, Guy T. Helvering (Commissioner of Internal Revenue of the United

States), and certain other officers of the United States, to enjoin the coal company and its officers named from filing an acceptance of the code provided for in said act, from paying any tax imposed upon the coal company under the authority of the act, and from complying with its provisions or the provisions of the code. The bill sought to enjoin the Commissioner of Internal Revenue and the other federal officials named from proceeding under the act in particulars specified, the details of which it is unnecessary to state.

No. 649 is a suit brought in a federal district court in Kentucky by petitioners against respondent collector of internal revenue for the district of Kentucky, to enjoin him from collecting or attempting to collect the taxes sought to be imposed upon them by the act, on the ground of its unconstitutionality.

No. 650 is a stockholder's suit brought in the same court against the coal company and some of its officers, to secure a mandatory injunction against their refusal to accept and operate under the provisions of the Bituminous Coal Code prepared in pursuance of the act.

By the terms of the act, every producer of bituminous coal within the United States is brought within its provisions.

Section 1 is a detailed assertion of circumstances thought to justify the act. It declares that the mining and distribution of bituminous coal throughout the United States by the producer are affected with a national public interest; and that the service of such coal in relation to industrial activities, transportation facilities, health and comfort of the people, conservation by controlled production and economical mining and marketing, maintenance of just and rational relations between the public, owners, producers and employees, the right of the public to constant and adequate supplies of coal at reasonable prices, and the general welfare of the nation,