Evening Star Newspaper, August 3, 1937, Page 11

Court Tangle Creates New Issue Laws Hint Justice Should Be Named for Confirmation. BY DAVID LAWRENCE. RESIDENT ROOSEVELT has been advised that he can defeat the will of the United States Senate and appoint a member of the Supreme Court after Congress adjurns for its present session and that the appointment will hold good until the end of the next session which might be until the Summer of 1938. Thus without allowing the Sen- i ate to express its 3 advice and con- sent as required ¢ by the Constitu- tion, the Presi- dent is being told & justice can gerve on the Su- preme Court for a whole term of the court, which runs from October to June. The precise point at issue—when a vacancy must be filled—has never been pessed upon by the Supreme Court itself and there are as many good legal grounds for arguing that Attor- ney General Cummings has rendered the wrong advice as to suggest that his opinion is conclusive. The Constitution’s language is as follows: “The President shall have power to fill up vacancies that may happen dur- ing the recess of the Senate, by grant- ing commissions which shall expire at the end of their next session.” David Lawrence, Hinges on Word “Happen.” The question is: What does the word “happen” really mean? It is in- gisted by the administration that the word may be construed to mean all vacancies “that may happen to exist during the recess of the Senate.” This interpretation, however, arises from a peculiar set of circumstances in a given case which in reality does not apply at all to the present situ- ation. Back in 1880 a vacancy oc- curred in the office of United States district attorney and in those days the cireuit ges had power to fill the vacancies. Henry Farrow was the in- cumbent. When his term expired, a circuit judge appointed him to fill the vacancy. Then the President came slong with another appointment, namely, John Bigby, and the nomina- tion was sent to the Senate while that body was in session, but failed of action. A dispute arose as to the power of the President to make & recess appointment for Mr. Bighy. Clearly this is different from the cir- cumstances existing today with respect to Justice Van Devanter, who retired from the Supreme Court on June 2, during a session of the Senate, and no nomination has been made by the President. Yet in the Farrow case, which was decided by Judge Woods for the Cir- cuit Court, northern district of Geor- gia, oconstituting really the highest Federal court ruling available, the opinion of the oourt, instead of sup- porting, really rejects the reasoning of those who insist that “happen” means in all cases “happens to exist” during & recess of the Senate. Opinion Cited. Judge Woods quoted with approval the opinion of William Wirt, Attorney General under President Monroe. Said Mr. Wirt: “The Constitution does not look to | the moment of origin of the vacancy but to the &tate of. things at the point of time at which the President is called upon to act. Is the Senate in gession? Then he must make & nomi- nation to that body. Is it in recess? Then the President must fill the va- cancy by a temporary commission. This seems to me to be the only con- struction of the Constitution which is compatible with its spirit, reason and purpose, while at the same time it offers no violence to its language, and these are, I think, the governing points to which all sound construction looks.” Judge Woods pointed out that this | opinion was concurred in by Roger | Taney when he was Attorney Gen- eral under President Jackson, the game man who was later Chief Jus- | Session of the upper house of the Legis- tice. But Mr., Taney used the idea | of “happen to exist” to cover an en- | tirely different set of circumstances than prevail today. He declared that the clause in the Constitution was intended to provide “for those va- cancies which might arise from acci- | dent, and the contingencies to which | human affairs must always be liable.” | Mr. Taney's point was that if by some | mischance a nomination was omitted by a President through no deliberate | intention, then a wvacancy might be #aid to happen to exist. He added: “If it falls out that from death, in- advertence, or mistake, an office re- quired by the law to be filled, is in recess, found to be vacant, then a va- cancy has happened during the recess and the President may fill it.” New Issue Involved. ‘This reasoning was tied closely to the notion that a nomination sent to the Senate might fail of confirmation and that a recess appointment would then be in order. This power is not questioned now, but the new issue is whether a President, fully cognizant of the existence of a vacancy, refuses to send & nomination to the Senate, makes a recess appointment and then refuses to withdraw the appointment # it is not confirmed by the Senate and keeps his appointee on the Su- BARGAIN EXCURSIONS Good on specitied trains only— for details see fiyers—consult agens or Telephone Dlstrict 1424 Saturday, August 7 Wilkes-Barre Scranto on $4.75 $5.00 Sunday, August 8 $3.00 Philadelphia $3.75 Atlantic City 5278 Wilmington Baltimore $1.25 Ervery Saturday-Sunday 1.50 Daily PENNSYLVANIA RAILRORD Good for 3 davs THE EVENING STAR, WASHINGTON - What’s Back of It All Sidney Hillman Rumored as New C. I. O. Head, Although Reports Are Scouted. BY H. R. BAUKHAGE. PLITS are the rage in Washington these days. ‘The banana viriety has now Leen supplemented by one which, it is insisted ir. certain labor circles, smells decidedly of banana oil. ° This one is the reported C. I. O. leadership “split,” and there seems to be some evidence that it isn’t quite what it seems. Long ago, those who were supposed to understand the strategy of the C. I. O. campaign and the difficulties that might arise, predicted that Sidney Hillman, suave, diplomatic, soft-spoken, was to be put out in front if Gruff John Lewis proved too tough & proposition for public opinion to accept. When Mr. Hillman visited the White House last week no state- ment was issued, but the event provided basis for a report, which was not officially confirmed or denied at that.time, that Mr. Hillman would lead the C. I. O. column from now on. C. 1. O. knows that the nearer John Lewis gets to the White House the more the anti-New Dealers cheer. It is no secret that certain politically sensitive members of the Labor Department likewise are subject to the “too-much-Lewis’” affliction. There is a significant atory behind at least one Senate vote on the wage and hours bill. It reveals, between the lines, how some of the not-too-vocal conservatives in the Democratic party may remain within the New Deal fold and still manage to bait their hooks for some of their con- servative supporters back home. The vote referred to was Semator Bulkley's and it shows a formula which may be adopted for others who would like to run with the hares and hunt with the hounds. The Ohio Senator, whose supporters are by no means confined to those who might be classified among the forgotten men and women, said ‘“no” to the wages and hours proposition. Thereby, it is stated, he won back considerable conservative support that he needs in next year's primaries. Senator Bulkley, it will be recalled, was one of the “stalwarts” who voted against recommiting the court bill. Of course, it didn't matter much, for the Supreme Court part of the measure was already cooked. But his act was taken as a friendly gesture toward the administration. His reward was permission to vote against the pro-labor meas~ ure without fear of political retaliation. While the Semator can’t expect much help from Mr. Farley in his 1938 battle back home, at least there is now to be no sniping from the rear. Which means, according to those who ought to know, that Mr. Bulkley will not have to look for a better 'ole when the New Deal barrage begins to pop over the conservative dugouts, Others in the party who are as good tight-rope walkers as the Ohioan may earn the same chance to stay on the reservation if they watch their steps. Friends of former French Ambassador Georges Bonnet, who left Wash- ington on a hurry call to become finance minister in the Chautemps cabinet, have just returned from Paris and report that the pale-eyed, popular diplomat regrets he ever left the banks of the Potomac. The financial reforms he has been obliged to decree, to pull the French treasury out of the mire, have got him in Dutch with all his cabinet col- e leagues. It seems that all the de- WIS WERE BACK partment heads are in favor of cutting down appropriations except ‘When their own budgets are af- fected. Deapite the roseate statements to the press, intimate friends of the finance minister report him in a gloomy mood. Cabinet meetings in PFrance these days are stormy affairs. Mem- bers threaten to resign if they don't get the money. Bonnet threatens to resign if they do. “Oh, to be back in Washington,” Bonnet sighs. “My working day was over at 5 p.m., and at 5:30 I was on my horse in Rock Creek Park. Here in Paris my day begins at 7, when my principal assistants arrive at my home to get their orders for the day. At 9:30, I am at the office receiving visitors, and, until 9 p.m., I do nothing but listen to people who try to convince me that the only salvation for France i8 to spend money, though none of them tells me where I am to get it.” To the pessimists, it Jooks very much like a sensational Bonnet resig- nation before Parliament convenes. R de FINANCE Unless the presidential candidate in 1940 is convinced that he has the luck of a Jefferson or a Monroe, he will have to be a courageous fellow, indeed. Five of our Presidents elected in & year ending in zero have died in office: William Henry Harrison, elected in 1840; Lincoln, 1860; Garfleld, 1880; McKinley, 1900, and Harding, 1920. (Copyright, 1937, by the North American Newspaper Alliance, Ine.) RENO MARRIAGES BOOM preme Court throughout a full term of the court. | Incidentally, Congress itself has by | law indicated that it does not approve | of persons taking office who are not | confirmed when there has been a | chance for them to win confirmation. | The revised statutes of the United States ever since 1869 have provided: | “No money shall be paid from the Treasury as a salary to any person appointed during the recess of the Senate to fill a vacancy in any existing | office, if the vacancy existed while the Senate was in session, and was by | l]aw required to be filled by and with the advice and consent of the Senate, until such appointee has been con- | firmed by the Senate.” The most important court decision of recent years bearing on the point at issue was in Colorado in 1925 when a clause in the State constitution virtually the same as that in the Fed- eral Constitution was construed by the Supreme Court of Colorado to mean that once a vacancy occurs during a married here. | June. & year ago. lature & nomination must then be made or else a recess appointment is barred. The Colorado Legislature met on January 7, 1925, and sat in con- tinuous session till April 17, 1925. But notwithstanding that a vacancy oc- curred in the State Board of Land Commissioners on January 13, 1925, the Governor waited until April 16, 1925, the very day the Senate was preparing to adjourn, and the nomina- tion was left unacted upon for lack of time. The Supreme Court of Colorado refused to recognize & recess appoint- ment, saying: “It cannot be disputed that it is the Governor's constitutional duty to nom- inate to the Senate when it is in session and upon their consent to appoint to fill every vacant office. It follows that the Governor cannot make an ad interim appointment in the present case, bust must await the session of the Senate or call a special session.” (Copyrixht, 1937.) 36 pictures—one loading takes action! FOR THE NEW argus CANDID CAMERA Camera Headquarters 529 14th Nat. 7024 14th Below F ;‘ RENO, August 3 (#).—All records for ! | marriage licenses issued in this di- ! vorce “capital” in one month were broken in July, when 958 couples were | The former record was 892, set in | The July total brought the | number of licenses issued this vear to | | 4,326, compared to 3,881 at the time additions and improvements. Americas Oil Co.—Also Maker of Amoco-Gas. D. C, TUESDAY, AUGUST 3, 1937. THE opinions of the writers on this page are their own, not necessarily The Star’s. Such opinions are presented in The Star’s effort to give all sides of questions of interest to its readers, themsel although such opinions ma’;l ves and directly opposed to T be contradictory amon e Star’s, . % Let’s Think It Over Congress Might Do U. S. a Real Service by Post- poning Wage-Hour Bill Action. BY MARK SULLIVAN. HE wage and hour bill will be in the House this week. The House bill differs materially from the version passed by the Senate last Saturday. ‘The best judgment is that the House will pass its measure. If opposition was ineffective in the Senate, it will be less s0 in the House. In the House, tightly to its leaders by the rules, there is less chance for amendrnent, and practically no chance for real debate except what the leaders ;| choose to allow. A view some- times heard is that the Houge MK Sullivan. and Senate bills will differ materially, that consequently there must be diffi- culty in adjusting the two, and hence that the conference may be so pro- longed as to prevent enactment this session. In that possibility there is not much substance. If prevention of the bill that way were possible it would not be desirable. Deadlock between House and Senate would be “duck soup” for President Roosevelt and the New Dealers, for several reasons. Mr. Roosevelt has a “peeve”’ on Congress and would be delighted to see them held here in contention and discom- fort. More serious than that, deadlock between House and Senate, inability of Congress to function even if only temporarily, would be grist for the radicals, those whom Gen. Hugh John- son calls the “Machiavellis” They would have the chance to say, “Look at that, look at Congress, look at gov- ernment by old-fashioned parliamen- tary process, it doesn't work; let us have authoritarian government, one- man government.” Disrespect a Requisite. At all times now, the most impor- tant yardstick by which to test events in Washington is in terms of how far we go, or are taken, in the direc- tion of a changed form of govern- ment. Essential in the process by which one-man government was brought to Europe was the discredit- ing of government by parliament. If the new form is to be imposed on America, destroying respect for Con- gress is a requisite. Destroying re- spect for Congress is as necessary as destroying respect for the courts. Any one who, for the sake of temporary advantage about one measure or pol- iey, wishes to see Congress function badly or not at all—any such person is playing into the hands of the Machiavellis. By all means, let Con- gress pass the wage and hour bill, now that it has got this far. Amend the bill, perfect it, pass the best ver- sion attainable—but pass it. ‘To say whether the pending measure, any version of it, is good or bad public policy is not easy. Iaw, outlawing wages below a certain low minimum and limited to objective, is practicable, constitutional and desirable. This objective is not only worthy point of view, but feasible from a prac- tical point of view. All Too Powerful. But the pending measure, any ver- sion of it, has deep-reaching objec- tions. Tt presidential appointees more power over the fortunes of the country than Any board or man ought to have. It gives them discretions which they ean Careful buyers ask for American Gas—the best buy in “Regular” Discovering a place of greater gasoline values is a real discovery indeed! Because gasoline is a big item in your family budget! Today there’s a new measure of value in regular gasoline! New refinery new equipment...new patented processes en- A minimum wage | that | from & humanitarian | gives to a board of five ! use to the disadvantage of one section, the advantage of another. As one ex- ample, the board is directed to intro- duce the 40 cents an hour minimum ‘wage and the 40-hour maximum week, “as rapidly as is economically feas- ible.” (At least I think the bill still contains this provision; the bill changes 50 swiftly by amendment and committee change that it is hard to follow. This is one of the objections to enacting the bill now; few know Just what it provides, fewer know how it will work.) The latitude to the board in that phrase, ‘as rapidly as is economically feasible,” is great and dangerous. If the board, when appointed, reflects the temper of the Machiavellis, I suspect it will find very early that it is “economically feasible” to handicap or destroy industries in States repre- sented by anti-New Deal Senators. One would look for prompt disaster to Industries in Benator Pat Harrison's Mississippi, for example, or Senator Carter Glass' Virginia, or Senator Burke's Nebraska. In a long experience in Washington, I have never seen any party or group as willing to use power in & punitive way as the New Deal “idealists.”” They are ruthless, some of them frankly outspoken, in their determination to discriminate against not only individuals but groups and sections that oppose them. The funda- mental conception of the Machiavellis is & one-party government, with op- position parties proscribed and ex- terminated, as in Nazi Germany, Fascist Italy and Communist Russia. In that conception opposition is trea- son, and is treated as such. o Suicide for States. By this bill, by any version of it, by the fundamental principle of it, the | Btates and sections lay themselves | open and bare to the power of Wash- | ington. This bill, with others pro- | posed, forecasts suicide of the States. | The States might at least, in self-re- | spect, wait to be murdered The tragic thing is that surrender | by the States of power over industries is not necessary. The humanitarian objectives of the wage and hour bill can be as well achieved by State leg- islation (with Federal legislation in the role of complimentary protection), a8 by the present bill giving all power to Washington. This was not true a little while ago; until recently there was justification for covering this sub- ject by Federal legislation. Through | recent decisions of the Supreme Court | the reasons for Federal legisiation, rather than State, have disappeared. Few understand what has happened. | Few understand that the States can now keep their powers, yet attain the humanitarian objectives of regulation of industry. How Congressmen who prize State rights can vote as some | of them are voting on this mesasure | can only be explained on the assump- tion that they do not understand there is a better way. The best disposition of the pending wage and hour measure—perhaps too good to hope for—would be for Con- gress, acting with leisure and dignity, | in the sober execution of its own pre- | rogatives, without deadlock or filibus- ter, merely to announce that it wants time to understand this measure; con- sequently it will not pass the measure at this session, but will act upon it | promptly when it reassembles next Janu: (Copyright, 1937.) Transit Workers Plan Outing. | The annual Capital Transit Em- | ploves’ Relief Association outing at | Glen Echo will be held August 19, it is announced by Robert Dougan, chair- man of the committee on arrange- ! menta. Discover one best buy in gasoline, too! New Value able us to build-in—refine-in—extra values that mean a lot to you and your car. The new gas is ready—NOW! It’s called New Value American Gas. It’s even better than last year’s superb American Gas. More than ever, the best buy in *‘regular’’! More value for your gas- oline dollar...more value from your automobile investment! Try it! % Free Album and Historical Stamps — while they last, at American Oil Company dealers and Lord Baltimore Filling Stations. 7 AMERICAN GAS STOP AT THE AMOCO "'SIGN OF GREATER VALUES" -World's Finest Motor Fuel We, the People Landon Won, After All, if Democrats Manage to Stop Roosevelt Program. BY JAY FRANKLIN. (HE great calculation of the G. €. P. has worked out right at last— though a little late—and makes Alfred Mossman Landon the winner, 1f not the titleholder, of the bout in 19386, ‘The general smugness of the Tory press after last election day, the speed and unanimity with which they announced—they who had been 80 per cent anti-Roosevelt—the arrival of an “era of good feeling,” the pose of injured innocence with which they turned against the President and moaned, “We are betrayed!” when he proposed to go forward from his Madison Square Garden pledge to action—all these should have con- vinced us that there was a stranger in the New Deal woodplile. ‘The result is visible today. The woodpile seems to have included other things than wood. The Dem- ocrats in Congress are openly split between those who believe in fol- lowing the election returns and i those political short-changers who AEW PTAL HoctaLE, favor ignoring the “mandate” of 1936 and adjourning Congress after having very loudly done precisely nothing for the last seven months. The division is so close that the Repub- lican remnant in the House and Senate holds the balance of power, and— as McNary of Oregon, Senate minority leader, has always shown—Ilooks to Vice President Garner for its cues. Along with many thousands, I saw Vice President Garner stand up beside Mr. Roosevelt in the stadium at Philadelphia, and, his right hand raised high, I heard him say: “I have enlisted for the duration!” The duration of what? Of the campaign? Of his personal sympathy with the program for which he was openly soliciting the votes of his fellow citizens? Of the “war” against the economic royalists? We all—and the country as a whole—underatood the tradition of political decency to mean that Mr. Garner had pledged himself to stand by the New Deal program to 8 finish fight. Nobody believed that Mr. Garner's enlistment “for the dura- tion” implied an intention to make a separate peace or to attack his own general on the field of battle. S %% % Under the circumstances, the Landon campaign of iast year looked dumb and clumsy. In retrospect, it was a clever and daring operation. While the G. O. P. put up a clay pigeon of a presidential candidate and sllowed the New Dealers to shoot him to little pieces, the Tories had been planting a platoon of “little Landons” in the New Deal ranks and were counting on Mr. Garner and the more petrified politicians of the deep South to wage war against the Roosevelt reforms from ambush. At the same time, the eflort was made to weaken farm-belt sup- port for Mr. Roosevelt by preventing enactment of farm legislation by this session of the Congress. Henry Wallace allowed himself to be talked out of his “ever-normal granary” system of crop insurance by the Senate Committee on Agriculture, headed by ‘“Cotton Ed” Smith of South Carolina. The judiciary reform bill dattle further weakened and confused farm sentiment and the Western “liberals” plunked for a sugar quota bill which is an outrage on economics and a parody of responsidle politics. Mr. Wallace himself retired to the cool mountains of Colorado, where Mr. Landon vegetated last year, leaving the President to struggle for a jarm program. It's the greatest practical joke in American history. The “little Landons,” the Bourbons and the beet-sugar boys in the New Deal ranks eagerly abandoned reform and adopted the traditional G. O. P. prog.am— ““see nothing, hear nothing, say nothing. do nothing!"—in the face of elec- tion returns which demanded a program of action, audacity, foresight and 1aith in democracy. B0 Landon won, after all. As this is written, Mr. Roosevelt iz strug- gling to put through that part of his program which represents the will of that section of his party which stuck to its guns: New labor leg- islation, slum clearance and low- cost housing, income tax reform and reform of judicial procedure. And he must do that in the teeth of an opposition whose apparent leader is the same man who took his hand in public a year ago and pledged loyalty “for the duration,” an opposition which numbers in its ranks many men who sought elec- tion on the slogan of “Trust Roosevelt!" and who were given office because the people agreed with Roosevelt that “we have Just begun to fight!"” (Copyrisht, 1937.) JULIAN BUYS FARM ROCKVILLE, Md., August 3 (Spe- cial).—Announcement has been made of the purchase by W. A. Julian, terasurer of the United States, of the farm of M. Donaldson Knight, on the Rockville-Potomac road, near Rock- ville, which contains 219 acres. Mr. and Mrs. Knight have bought a home at Kensington and will remove there within the next few weeks. | acquisition | little fellow to be near the National An American You Should Know Fred G. Orsinger Says He Has Most Inter- esting Job in City. BY DELIA PYNCHON. IRECTOR of the remarkable Department of Commercs Aquarium is Fred G. Orsinger, Commissioner Bell calls it the Bureau of Fisheries’ sample case. It ‘WAS “tops’ on the recent Boy Scouts’ lists of musts to see in Washington. Approximately 3,000 visited the aqua= rium daily. Twenty-nine large tanks, 24 small tanks, 1500 specimens, 47 different species, are displayed in their natural habitats. This is Orsingers special hobby. It makes the “sampls cases” arresting. The bass have a broken boat, the ; bluefish a wharf, the rockfish a quarry, the eels a pile of rocks, with appropriat e greenery. Habits of predatory fish are studied so that they may be exterminated - G. Ominrer. 1rom American streams. “Every fish is & healthy specimen,” Orsinger says. To overcome the lack of sunlight, the fish get vitamin diets of shredded beef hearts, shrimps, oat= | meal, cooked spinach. The frogs ara fed with a spoon. Orsinger has tamed the tank fish s0 that they eat out of his hand. Then there are the Ana= bascendas, which can walk from one pond to another propelled by their pectoral fins. They obligingly walked a plank for Orsinger. The Testadons meke a ball of themselves protectingly when their bellies are scratched. The little sunfish are doing their bit by picking lice off the big fish. A gnldfish with & red cross on his back is a new The dor wanted the Red Cross headquarters! A native of La Salle, Ill., where he was born in 1877, Orsinger spent his bovhood collecting fish, cluttering up | his house with tanks, fishing every body of water in three States. “Every man should have a hobby to get away from the pressure of life.” Orsingdr says. “Mine has always been fish " A heating and ventilating engineer of Chicago, Orsinger says that his voca=- tion in the heating business provided the wherewithal to pur his avoca- tion of fishing. until the twn became one when he became director of the aquarium, When John G Shedd offered three millions to Chicago for anyv educational purpose, the city chose an aquarium. Tsinger was appointed fresh water curator and collector. His acquaine | tance with ichthyologists and fisher- men in the States made his efforts most successf When the late Mr. Henry O'Malley, then commissioner of fisheries, moved the old aquarium material from Sixth and B streets, he borrowed Orsinger for the job. This led to his present appointment. 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