Darweger v. Staats

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The National Industrial Recovery Act, passed June 16, 1933 (48 U.S. Stat. 195), declared a national emergency in these words: "A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources."

As a step in the direction of effectuating this National policy, section 3 (NIRA) provides for codes of fair competition:

"(a) Upon the application to the President by one or more trade or industrial associations or groups, the President may approve a code or codes of fair competition for the trade or industry or subdivision thereof, represented by the applicant or applicants, if the President finds (1) that such associations or groups impose no inequitable restrictions on admission to membership therein and are truly representative of such trades or industries or subdivisions thereof, and (2) that such code or codes are not designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and will tend to effectuate the policy of this title; * * *.

"(b) After the President shall have approved any such code, the provisions of such code shall be the standards of fair competition for such trade or industry or subdivision thereof. * * *

* * * * * * *

"(d) Upon his own motion, * * * the President, * * * may prescribe and approve a code of fair competition for such trade or industry * * *."

By section 10, subdivision (b), "The President may from time to time cancel or modify any order, approval, license, rule, or regulation issued under this title; and each agreement, code of fair competition, or license approved, prescribed, or issued under this title shall contain an express provision to that effect."

Attention is directed here to the option given to the President as well as to various trades. All industry is not required to be codified. First, it is optional with the business or enterprise; secondly, it may be forced by the President at his option; and further yet, after a code has been adopted and approved, it may be modified by the President as to any of its regulations in the future. The whole matter rests upon the approval of the President, based upon findings made in accordance with the law.

Under these provisions of the National Industrial Recovery Act the Retail Solid Fuel Industry prepared its code, which was approved on February 14, 1934. Section 1 of article III established two agencies: (a) The National Code Authority; (b) the Divisional Code Authorities. Pursuant to subdivision 9 of this article, the Divisional Code Authority, Division No. 3, was established and was stated to embrace the State of New York, with the exception of the counties of Bronx, New York, Kings, Queens, Richmond, Nassau and Suffolk. Here again we find in this Code that both the National Code Authority, which was duly established, and the Divisional Code Authority have been given certain discretionary powers. Under article V, dealing with marketing practices, we find these provisions in subdivision 4:

"Whenever, upon complaint or upon its own initiative without complaint, the National Code Authority is of the opinion that an emergency exists within the industry or within any retail trade area thereof, in that destructive price-cutting is being engaged in to such an extent as to render ineffectual or seriously endanger the effectuation of the purposes of this Code or of the Act, the National Code Authority shall forthwith certify such conclusion to the Divisional Code Authorities.

"(a) Upon receipt of such notice each Divisional Code Authority, after a full hearing upon notice to all known interested parties within the respective trade areas, shall determine whether or not such an emergency exists within the Division or within any one or more trade areas thereof, and in the event it appears necessary to declare such an emergency to exist, thereupon to open the hearing for presentation of all matters which may have a bearing upon costs to be ascertained and determined as provided in subdivisions (b) and (c) hereof.

"(b) In any retail trade area of any Division where such emergency has been declared to exist the Divisional Code Authority shall forthwith ascertain to the extent reasonably practicable for such retail trade area the cost to members of the industry of their products and services on the basis of actual cost sheets of members of the industry within such retail trade area and all other available data, for each kind, grade, size and blend of solid fuel and each classification of customers within such retail trade area.

"(c) On the basis of costs ascertained as above, the lowest cost (which shall include an allowance for all items of actual cost, but exclusive of any elements of profit or return on capital) which shall still insure within such retail trade area the maintenance of rates of pay, hours of labor, fair competition, and other purposes of this Code and of the Act, shall be determined by the Divisional Code Authority, such figure to be the lowest figure reasonably compatible with the maintenance of the purposes herein set forth."

Reviewing these provisions we find the National Recovery Act declaring an emergency, but requiring no particular industry to be codified, leaving it entirely to the option of the industry or the President. When it comes to price-fixing we again find that an option has been left, not only to the National Code Authority in the Solid Fuel Industry, but also to the Divisional Code Authorities. First, the National Code Authority must find that an emergency exists; second, upon certifying the fact to the Divisional Code Authority, the latter shall again determine whether or not an emergency exists requiring the fixing of prices. But this is not all. The Administrator, by section 2 of article III, may appoint one non-voting member of the National Code Authority, who may also sit with the Divisional Code Authority at the request of the Administrator. Paragraph (d) of subdivision 4 of article V gives this administrative appointee further discretion. It reads: "Such determinations of cost shall promptly be approved or disapproved in writing by the Administrative appointee on the Divisional Code Authority, and upon approval shall become effective, subject to the right of the Administrator to approve, disapprove or modify the same. All such determinations of cost by the Divisional Code Authorities shall forthwith be filed with the National Code Authority and the Administrator."

The Divisional Code Authority, Division No. 3, on June 29, 1934, after a hearing and taking of testimony, promulgated its Order No. 3E which fixed a floor-level price for the sale of coal in certain counties embraced in said Division, including the county of Broome. Said order in part reads as follows:

"It is hereby resolved, That in the trade area of Broome, Cortland, Chenango, Otsego, Delaware and Sullivan Counties, also the Counties of Chemung, Tioga, Tompkins, Schuyler, the Townships of South Waverly, Sayre and Athens in Pennsylvania, and Southern Seneca County including Townships of Romulus, Ovid, Lodi, Covert and Varick, the lowest figure of cost covering the cost of products and the cost of services on the various domestic sizes of anthracite coal including Pea Coal shall be the Old Line Company's circular price plus the net ton freight rate to destination plus $3.15 per ton service charge; and on steam sizes of anthracite shall be the Old Line Company's circular price plus net ton freight to destination plus $2.75 per ton service charge; and on Coke shall be the Producing Company's circular price plus the net ton freight to destination plus $3.15 per ton service charge; and on all grades, kinds and sizes of bituminous coal shall be the bituminous code mine price plus freight to destination plus $2.75 per ton service charge."

That by the said order the said floor-level price was computed as follows:

"(a) On domestic anthracite coal, including Pea coal, the Old Line Company's circular price, plus net ton freight to destination, plus $3.15 per ton service charge.

"(b) On steam sizes of anthracite, the Old Line Company's circular price, plus net ton freight to destination, plus $2.75 per ton service charge.

"(c) On bituminous coal, the bituminous code mine price, plus freight to destination, plus $2.75 per ton service charge."

Section 5 of article V of the Code reads as follows: "The selling or offering for sale of any of the products or services of this industry for which the costs may have been determined as provided in Section 4 of this Article V, at such prices or upon such terms or conditions of sale that the buyer shall pay less therefor than such determined cost, shall be deemed an unfair competitive practice in violation of the requirements of this code."

By section 10(a) of the National Industrial Recovery Act, any violation of the rules and regulations prescribed by the President shall be punishable by fine of not to exceed $500, or by imprisonment for not to exceed six months, or both.

The plaintiff in this case is a retailer of solid fuel and has his yard and principal place of business in the city of Binghamton, New York. He has been threatened by the defendants, "The Divisional Code Authority, Division No. 3, for the Retail Solid Fuel Industry" with prosecution and imprisonment for failure to comply with the price regulations as fixed by Order No. 3E.

It is not claimed that any of the provisions of law heretofore referred to, the National Industrial Recovery Act or the Retail Solid Fuel Industry Code, have any application to him or to his business. It is conceded that his business is purely intrastate and these measures, above quoted, have application solely to interstate business. The Solicitor-General of the State, upon the argument and also in his brief, states that the act of Congress and the Codes thereunder relate solely to interstate commerce. How then comes it that this little retail business, purely intrastate and carried on by the plaintiff in Binghamton, is thus threatened with prosecution for the violation of law? The law is the State law, chapter 781 of the Laws of 1933, sometimes referred to as the State Recovery Act. As its constitutionality is challenged, we quote in full the pertinent provisions:

"Section 1. Legislative finding; statement of policy. A national emergency productive of widespread unemployment and disorganization of industry, which likewise prevails in the state of New York, which burdens intrastate, interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people and of the people of the state of New York, is hereby declared to exist. The existence in this state of such present acute economic emergency, and the effects and certain causes thereof as declared in section one of title one of the national industrial recovery act, enacted by the congress of the United States, effective June sixteenth, nineteen hundred thirty-three, are hereby recognized; and it is hereby declared that said emergency, the causes and effects thereof, as so declared, relate as well to commerce in this state wholly intrastate in character as to interstate and foreign commerce and transactions affecting interstate and foreign commerce carried on in this state. It is hereby declared to be the policy of this state to cooperate in the furtherance of the objects and purposes declared in said act of the congress, and each and every provision of this act shall be construed in accordance with the policy so declared, and to make uniform the standards of fair competition prevailing in intrastate commerce and industry with those of interstate commerce required by the provisions of the said national industrial recovery act which are applicable in interstate commerce in the state of New York.

"§ 2. Filing of codes and agreements. 1. The secretary of state is hereby authorized to receive for filing and shall file in the office of the department of state a copy of each code, agreement, license, rule or regulation in effect pursuant to such act of the congress, pertaining, affecting or in any way relating to the conduct of business in the state and duly certified as a true copy of such document or documents by the officials in charge of the administration of the provisions of title one of the said national industrial recovery act or by their duly authorized agents. Upon such filing of a copy so certified of a code of fair competition for any trade, industry or subdivision thereof, as approved by the president of the United States, or of any agreement or license or of any rule or regulation provided for under title one of the said national industrial recovery act, such code, agreement, license, rule or regulation shall be the standard of fair competition for such trade or industry or subdivision thereof in the state as to transactions intrastate in character, and any violation of any provision of such code, agreement, license, rule or regulation shall be a misdemeanor, and upon conviction thereof, the person convicted shall be fined not more than five hundred dollars for each offense, and for each day such violation continues a separate offense subject to the fine herein prescribed shall be deemed to have been committed."

As is evident, section 1 of this law merely expresses the same policy as that of the National Recovery Act. Section 2 makes the filing of any code approved by the President the law of this State, a violation of which is a misdemeanor.

At this point certain considerations are necessary in passing upon the one question — whether the Legislature has passed any law regarding unfair competition, or has declared any emergency in the coal industry which requires legislation, or whether it has passed this legislative function over to other bodies. Considering that the National Recovery Act and this Fuel Code have no application to the State of New York, dealing solely with interstate commerce, they have no more effect here for intrastate commerce than would a law of Connecticut, Massachusetts or California. They are made to operate here by the mere declaration of the Legislature that, by the filing in the office of the Secretary of State of the Code, it shall become the law of the State of New York relating to unfair competition. Would it be constitutional for our Legislature to adopt a law of Massachusetts or of Connecticut or of California in any such way?

Section 1 merely declares a policy, merely says an emergency exists in industry and in employment, but how that emergency shall be met or what measures shall be taken in the wisdom of our Legislature to meet the emergency is nowhere stated. There is no statement or finding by the Legislature that an emergency exists in the coal industry or that it is necessary or in the judgment of the Legislature requisite that a code of unfair practices be adopted by that industry. The Legislature has left this determination entirely to the President of the United States or to the National Code Authority. But more than this, it has left to an outside body — outside the State of New York, a National Code Authority — to determine that even an emergency exists. The necessity of price-fixing in the coal industry depends upon an emergency declared by the National Code Authority. This is not enough; the price regulation must be approved by the Federal Administrator.

Stripped of all its verbiage, and narrowing these provisions down to the real authority, we find that the Legislature of the State of New York has turned over to the National Administrator the question of determining whether there shall be price-fixing in New York State of coal and what it shall be. The Legislature has left too many things to be determined by other bodies to make this law constitutional.

The State Legislature cannot leave to Congress to determine that an emergency exists in intrastate business in the State of New York, and we may say in passing, that Congress has not attempted to do so. The Legislature cannot leave to a body of industrials throughout the United States to declare that an emergency exists here in intrastate business, and to provide methods and means for meeting that emergency. The Legislature cannot leave to a National Administrator to declare what shall or shall not be a crime in New York State.

The law governing the functions of the Legislature is well understood. Section 1 of article III of the New York State Constitution provides:

"Legislative powers. Section 1. The legislative power of this State shall be vested in the Senate and Assembly."

This legislative power cannot be passed on to others. What is legislative and what administrative is not always easy to define, but the difficulty is not apparent here.

"The senators and assemblymen are selected by the electors of their respective districts to represent them in the legislature of the state and to enact such laws as shall be requisite and advisable. The people, who have entrusted them with legislative power, have the right to demand the exercise of their knowledge, judgment and discretion in the framing and in the enactment of laws, and in so far as their duties are strictly legislative, have prohibited them from delegating that power to others." (Stanton v. Board of Supervisors, 191 N.Y. 428, 432.)

Power given to a Public Service Commission to fix rates is the subject of inquiry in Wichita R.R. Light Co. v. PublicUtilities Commission (260 U.S. 48, 59). The court said: "In creating such an administrative agency the legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding." (See, also, Panama RefiningCo. v. Ryan, 293 U.S. 388; also Barto v. Himrod, 8 N.Y. 483. )

In United States v. Grimaud (220 U.S. 506) it was held that while it is difficult to define the line which separates legislative power to make laws and administrative authority to make regulations, Congress may delegate power to fill up details where it has indicated its will in the statute, and it may make violations of such regulations punishable as indicated in the statute. Authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses.

In this day when the demands upon the State Legislatures for necessary and important laws are increasing every year we must not be rigid in our construction of legislative power. More and more must the laws become general in form, leaving to commissions, boards or other administrative bodies the establishment of rules and regulations and the determination of the facts to which the general law will apply. To make the violation of any such adopted rule or regulation a crime, is not a delegation of legislative power. (See Matter of Trustees ofVillage of Saratoga Springs v. Saratoga Gas Elec. L. P.Co., 191 N.Y. 123, 145.) "The law books are full of statutes unquestionably valid, in which the Legislature has been content to simply establish rules and principles, leaving execution and details to other officers."

We have here, however, in this act before us no such establishment of a rule or principle. The Legislature has declared an emergency in industry and left it for others beyond its power or control to do the rest. It has not created or appointed any agency representing the People of the State to form rules or regulations or to even determine that price-fixing in the coal business is necessary.

In arguing in support of this law three assumptions are made: 1. That the Legislature has found an emergency in the coal business, and that the facts necessitate fixing the sales price of solid fuel. 2. That the Legislature has appointed or created an agency to carry out its will and administer the law through reasonable rules and regulations. 3. That the Legislature itself has the power to fix the sales price of all commodities useful to man by declaring an emergency. The first two are lacking in this case and the third is very questionable. This court and the United States Supreme Court have never so decided.

This law, chapter 781, Laws of 1933, is a mere shell, leaving to National bodies or officials the power to make the laws of New York State. To repeat, the Legislature does not declare that any emergency exists in the coal trade as conducted in intrastate commerce. It does not even declare that this business needs regulating. It leaves it entirely to an outside authority to say whether or not it shall be regulated, and what the regulations shall be. It leaves it to a National Code Authority or a National Administrator to say whether the emergency exists in that trade in New York State, and to fix the price at which coal shall be sold. The delegation of its power is even more extreme, for it makes it a misdemeanor for any citizen to violate any rule or regulation hereafter made by these authorities. The only thing required by this law is the filing of the nationalized codes in the Secretary of State's office. To this extent the Legislature has acted, and no further. Everything else has been delegated.

The briefs place much emphasis upon Nebbia v. New York (291 U.S. 502); People v. Nebbia (262 N.Y. 259), and claim that this is an authority to sustain legislation fixing the price of any commodity — shoes, clothes, coal, hardware or anything else that may strike the Legislature's fancy, provided an emergency be declared. The fixing of the price of milk in the Nebbia case was a mere incident to other regulations which tried to meet an abuse growing up to the detriment of the farmer and his stock. This control of the output protected the very vitals of the industry, and it would not have been a far step to have held, as perhaps it was intimated, that the milk industry was one touched with a public interest, such as water, electricity, grain and the like. To say that the Nebbia case is an authority for the Legislature to fix the prices of all commodities is not justified by the decision. What the legislative power may be in a given case regarding any industry we do not undertake to say. Sufficient unto the day is the power thereof.

Even then the Legislature in this case has made no attempt to fix the price of coal or to appoint any body to investigate as to its necessity. It adopts without ascertaining the facts for itself what may or may not be done by others having interests outside of New York State.

Likewise we have been referred to the cases regulating the rates on railroads, and for electric lights, such as Matter ofTrustees of Village of Saratoga Springs v. Saratoga Gas Elec.L. P. Co. (191 N.Y. 123); People v. Long Island R.R. Co. (134 N.Y. 506); Matter of Gilbert Elevated Ry. Co. (70 N.Y. 361) ; People ex rel. Doscher v. Sisson (222 N.Y. 387);Matter of College of City of New York (236 N.Y. 594);Cleveland v. City of Watertown (222 N.Y. 159); Gardner v.Ginther (257 N.Y. 578). All these cases dealt with corporations exercising public franchises or else with political divisions of the State or creatures of the State. They have no application to the price-fixing power generally.

We conclude that this State law which we are reviewing is unconstitutional, as an unauthorized delegation of legislative functions, contrary to our State Constitution.

The New York State Constitution further provides in article III, section 17, as follows: "No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act."

The evils sought to be avoided by this prohibition were stated in People ex rel. Commissioners v. Banks (67 N.Y. 568), where the court said: "The evil in view in adopting this provision of the Constitution, was the incorporating into acts of the legislature by reference to other statutes, or clauses and provisions of which the legislators might be ignorant, and which affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law, which would not receive the sanction of the legislature if fully understood (p. 575.)"

Surely an act which provided that any regulation of Congress hereafter made when filed with the Secretary of State would be enforceable in this State, and a violation thereof would be a misdemeanor, would be a violation of the spirit and letter of this our constitutional provision. The Codes above referred to, when once approved, are designed to have the effect of the law; they are made law by the act of Congress so far as they affect interstate commerce, and now they are proposed to be made law by incorporating them bodily into our statute by reference. It is too narrow a construction of this wise constitutional provision to say that it only applies to State laws and not to the Codes, because they are not laws in the strict sense of the word. The Codes became laws with heavy sanctions for an infraction. Their embodiment into chapter 781 of the Laws of 1933 by reference was unconstitutional. (Opinion of the Justices, 239 Mass. 606;State v. Vino Medical Co., 121 Me. 438.) (See, also, Peopleex rel. New York Electric Lines Co. v. Squire, 107 N.Y. 593, p. 602; Matter of Watkinson v. Hotel Pennsylvania, 195 App. Div. 624; affd., 231 N.Y. 562.)

One of the orders below denied defendants' motion to dismiss the complaint. The other order restrained the defendants from carrying out their repeated threats to prosecute the plaintiff for violation of the order of the Divisional Code Authority No. 3, being Order No. 3E. The injunction, if otherwise proper, was equitable, as the accumulation of fines and the discontinuance of the plaintiff's business meant his immediate ruin. The orders affirmed by the Appellate Division being interlocutory, permission was given by that court to come here, the question certified being:

"Does the complaint herein state facts sufficient to constitute a cause of action?"

The orders of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.