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February 16, 1939


The opinion of the court was delivered by: MILLER

MILLER, Associate Justice.

Plaintiff seeks an injunction to restrain and enjoin defendants, the National Bituminous Coal Commission, and its members, from promulgating orders fixing minimum prices for the sale of coal, from enforcing or attempting to enforce any order that may have been promulgated by said Commission, or any other orders affecting the plaintiff in the respects set forth in its complaint, or from instituting or taking any action or proceedings to compel obedience to such orders. It demands that the court adjudge and declare that the National Bituminous Coal Act, 15 U.S.C.A. § 828 et seq., is contrary to the Constitution of the United States; that the Commission is without authority to promulgate minimum price orders; that if the said Commission shall issue minimum price orders said orders are not applicable to plaintiff or any coal purchased by it. Defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. A Three-Judge Statutory Court was designated to sit in the case and it was heard upon the motion to dismiss.

 We assume that there are sufficient well pleaded allegations in the complaint to show that the plaintiff has legal standing which permits it to bring this suit; *fn2" that under the circumstances pleaded it was under no obligation to avail itself of administrative remedies before asking this court for relief; *fn3" that the suit is not premature *fn4" to the extent that it is "intended to avert a present wrong, though the wrong upon analysis will [may] be found to be unreal"; *fn5" hence that in what follows we are not improperly anticipating a question of constitutional law in advance of the necessity of deciding it. *fn6"

 Plaintiff contends that the commerce clause does not confer upon the Federal Government power to fix prices of coal. It is conceded that the coal which plaintiff uses must be received by it in interstate commerce as it is all mined in states other than Georgia. Consequently, the challenge to the exercise of federal power must be considered in the light of this concession, and of the well established law that although the production of coal in and of itself may not constitute interstate commerce, *fn7" the sale and shipment of that coal, or the contracting to sell and ship, to customers in another state, does. *fn8"

 The vital question remaining, then, is whether the regulatory authority of Congress over interstate commerce permits it to establish prices of coal sold in that commerce. That it has power so to control interstate commerce as to affect prices indirectly there can be no doubt because the fixing of rates for transportation, *fn9" and the regulation of conditions of labor, *fn10" must necessarily affect prices in many cases. *fn11"

 In Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A.L.R. 1469, it was held that the states have power to fix prices in the regulation of their internal commerce under the police power. There is no reason to deny to Congress a commensurate power with respect to the regulation of interstate commerce. *fn12"

 Moreover, it seems to be implicit in the language of several decisions of the Supreme Court, that Congress, in the regulation of interstate commerce, has power to fix prices. *fn13" To hold that it has not such power when its exercise may be, in many cases, the only method of protecting such commerce would create a sphere in which commerce would be free of all regulation. "This cannot be the case." *fn14"

 In view of its broad power to regulate interstate commerce, *fn15" "It was for Congress to decide, from its general information and from such special evidence as was brought before it, the nature of the evils actually present or threatening, and to take such steps by legislation within its power as it deemed proper to remedy them." *fn16" This it did in the enactment of the National Bituminous Coal Act.

 Plaintiff contends further that the Act is unconstitutional because it violates the due process clause of the Fifth Amendment, U.S.C.A.Const. It is true that the power of Congress to regulate commerce "must be exercised in subjection to the guarantee of due process of law" found in that amendment. *fn17" But the restriction thus imposed is at most no greater than that imposed by the Fourteenth Amendment upon the police power of the states *fn18" and does not require that freedom of competition or of contract shall be preserved either to the individual or to the state, *fn19" if to do so results in destructive interference with interstate commerce. *fn20" Moreover, the question here is not whether Congress, in using the method of price fixing, has adopted a sound policy, *fn21" but it is, instead, whether the means which it has chosen are appropriatre to the permissible end, i.e., the regulation of commerce. *fn22" When the means chosen are appropriate, there is little scope for the operation of the due process clause. *fn23" As was said by the Court in Nebbia v. New York, 291 U.S. 502, 537, 54 S. Ct. 505, 516, 78 L. Ed. 940, 89 A.L.R. 1469; "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. * * * And it is equally clear that if the legislative policy be to curb unrestrained and harmful competition by measures which are not arbitrary or discriminatory it does not lie with the courts to determine that the rule is unwise." Again, in Northern Securities Co. v. United States, 193 U.S. 197, 337, 24 S. Ct. 436, 457, 48 L. Ed. 679, the Court, in sustaining the Federal Anti-Trust law, 15 U.S.C.A. § 1-7, 15 note, said: "Whether the free operation of the normal laws of competition is a wise and wholesome rule for trade and commerce is an economic question which this court need not consider or determine."

 In our view, the methods adopted by Congress in the present case are appropriate to a permissible end. They are neither arbitrary nor discriminatory. The soft coal industry supplies the nation with its primary source of energy, vitally essential to the existence of the country's industries, and to the health and comfort of its inhabitants.Conditions in the marketing of coal have long been more or less chaotic, with the result that the flow of commerce in coal has been seriously burdened and impaired. It was to eradicate this evil, and to prevent its recurrence, that Congress acted thus to protect interstate commerce. *fn24"

 The standards established by the Act are equally as definite as those provided by other acts which have been approved by the Supreme Court. *fn26" The inadequacy of standards which appeared in other acts condemned by that Court do not appear in the National Bituminous Coal Act. *fn27"

 Finally, we hold that the Act constitutes no infringement of the sovereign powers of the City of Atlanta -- a governmental subdivision of the State of Georgia -- and no usurpation of powers reserved to the states by the Tenth Amendment, U.S.C.A.Const. As the fixing of coal prices, as provided by the Act, comes properly within the scope of the commerce clause, U.S.C.A.Const. Art. 1, § 8, cl. 3, conflicting powers of the State ...

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