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7 Monthly Bull. Int'l Jurid. Ass'n 159 (1938-1939)

handle is hein.journals/injasmb7 and id is 1 raw text is: INTERNATIONAL JURIDICAL ASSOCIATION MONTHLY BULLETIN Vol. 7, No. 1 JULY, 1938 ' , 9 1 m3 Price $2, a year The Bulletin sadly records the death of Mr. Justice Cardozo. He earned the reverence of men because he turned his gifts to their use. En I THE FAIR LABOR STANDARDS ACT OF 1938 After more than a year of bitter controversy, the Presi- dent's demand for establishment of national wage and hour standards, and prohibition of child labor, was met by the passage, on June 14, of a compromise measure. Approved by the President on June 25, this measure marks the in- troduction of a national floor for wages and ceiling for hours, and the reintroduction, after twenty years of un- constitutionality,' of a prohibition against the interstate transportation of the products of child labor. Except in its child labor provisions, the Act as passed differs materially from the original bill and the Committee measures which have been analyzed at length in the pages of the Bulletin., The House Committee measure there discussed was recommitted by the coalition of Republicans and Conservative (principally but not exclusively South- ern) Democrats, and this recommittal for a time threatened to prevent the passage of any bill. The House Committee then reported a new, and radically different bill, which was brought to the floor by a petition to discharge the Rules Committee, and passed without substantial amendment. The measure which has been passed is the product of a conference committee which had before it this second House measure, and the bill which had passed the Senate in July, 1937. MINIMUM STANDARDS AND PROVISION FOR ADMINISTRATIVE FLEXIBILITY The field for compromise between the Senate and House measures was practically limitless. Where the Senate bill imposed regulation only after administrative action of the most elaborate character, the House measure was auto- matic in operation, with administration and flexibility reduced to a minimum. While a compromise was reached, its predominant character is that of the House bill. With- out any administrative action, the minimum standards are imposed by law. While variation is provided for, no action is required in order to bring into operation, after stated periods of time, the highest standards which the adminis- trative Board would have been authorized to impose under the Senate bill. The floor for wages and ceiling for hours will become ef- fective automatically one hundred and twenty days after the enactment of the Act.3 At that time it will become un- lawful to employ any employee who is engaged in com- merce or in the production of goods for commerce at a (Continued on Page 169) 1. The Act of 1916 was declared invalid in Hammer v. Dagen- hart, 247 U.S. 251 (1918). 2. The Fair Labor Standards Bill, 6 I.J.A. Bull. 55. 3. H6 (b); 7 (d). RECENT ITEMS OF INTEREST CIVIL RIGHTS Conviction on Perjured Testimony a Denial of Due Process of Law. On June 8, the Circuit Court of Appeals for the Sixth Circuit, by its decision in a habeas corpus proceeding, released a man who had been in the shadow of the electric chair for nearly two years. The court held his conviction for murder on perjured testimony was a denial of due process of law.' November 4, 1935, Tom Jones was indicted in Kentucky for the murder of his wife five days earlier. November 8, he was arraigned, pleaded not guilty. Counsel was appointed for him and his trial set for November 12. Although the case was not reached till November 14, counsel was obliged to remain in court sub- ject to call. Excluding Sunday, November 10, three days were left for the preparation of the defense. A motion sup- ported by affidavits for a ten day continuance was denied. No one had seen the shooting. The defense was that the pistol was discharged in a scuffle for its possession when the wife threatened her own life. The principal witnesses against Jones were a six year old girl, who testified to a threat of killing by the appellant, and a woman of ill repute, who testified to the slain woman's dying declara- tion. On the ground of newly discovered evidence estab- lishing that the testimony presented at the trial by the prosecution witness was perjured, a writ of habeas corpus was sought in the federal court less than twelve hours be- fore the time set for Jones' execution.2 District Judge El- wood Hamilton granted the writ, but regarded the Mooney case as controlling that the federal court could not grant relief until state remedies had been exhausted. When this had been done a second habeas corpus was applied for in the federal court.3 In the Circuit Court of Appeals this writ was finally sustained.4 Both the District Court and the Attorney General were obviously impressed by the new evidence, none of which was known to the defense at the time of the trial and much of which might have been dis- covered if a reasonable continuance had been granted.5 1. Tom Jones v. Commonwealth of Kentucky, C. C. A. 6, No. 7978, not yet reported, Simons, C. J. 2. After the conviction a petition for clemency was circulated, but Governor A. B. Chandler twelve hours before the time set for execution declined to intervene because he regarded himself as bound by a campaign pledge not to exercise the pardoning power. 3. A writ of habeas corpus and an application for a writ of coram nobis were unsuccessfully carried through the Kentucky state courts which denied relief on jurisdictional grounds. 4. The United States District Judge, now a judge of this court, seemingly convinced that appellant's constitutional rights were impaired and that his convictidn was procured by perjured testimony, questioned the power and propriety of a single district judge to reverse the decision of the highest court of the state, and with commendable restraint, contented himself with the issuance of a certificate of probable cause to permit decision by a court clothed with higher authority. 5. The Court quotes from a statement of the Attorney Gen- eral to the Court of Appeals of Kentucky in which he said: Hypertechnical reasons for overruling the petition for re- hearing in the instant case might be found and urged with (Footnote Continued on Page 160) 159

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