Pensions Out

Once a highschool teacher, small, grey, solemn Alfred Adams Wheat retains the manner and appearance of a pedagog. Born in New Hampshire of old Yankee stock, he entered the District of Columbia bar in 1891. A Republican, he was appointed by President Hoover in 1929 to the District of Columbia's Supreme Court bench, where he moved up next year to be Chief Justice. From that bench last week he handed President Roosevelt's social program a major set-back by declaring the Railroad Retirement Act unconstitutional, granting an injunction against its operation.

Hastily whipped together and jammed through to passage in the feverish closing days of the last Congress, the Act provided for compulsory pensioning of all U. S. railroad employes--about 1,000,000. Workers were to contribute one-third, employers two-thirds to a pension fund administered by a Federal Board, appointed by the President. Retirement was to be compulsory at 65 except in special instances. First payments into the fund were scheduled for Nov. 1.

Into Judge Wheat's court trooped attorneys for 134 of the nation's 149 Class I railroads, crying protest at what, to them, looked like a gross violation of the "due process of law" provision of the Constitution. The pension system would cost them $60,000,000 in its first year, more later. The extra burden, they declared, would break the back of many a tottering line.

Of his first case of national importance, Justice Wheat took a strict, hardheaded, Yankee view. Involved was no question of national emergency, such as impelled the U. S. Supreme Court at its last term to uphold certain State statutes that smacked of New Dealism. The problem, as Judge Wheat saw it, was to decide whether a socially-minded Congress had overreached the power the Constitution gave it to regulate interstate commerce.

He found that about one-fifth of all railroad employes work at mining, upkeep, repair, clerical or other jobs which take them across no State lines. Four complaining companies alone owned $86,000,000 worth of property classified as non-carrier and yet were asked to pension employes in such enterprises. Some lines, like New York's Long Island R. R., lay entirely within the borders of a single State.

"The Retirement Act," concluded Judge Wheat's decision against the Government, "confers its benefits upon all employes of any company to which it relates without regard to distinction between interstate commerce, intrastate commerce, or activities which do not constitute commerce at all."

Though unwilling to deny that Congress might legally set up a pension system applying strictly to workers whose jobs took them back & forth across State lines, Judge Wheat allowed himself to doubt whether any compulsory system could retain the incentives to gratitude and loyalty found in voluntary systems. Mightily offended was his sense of justice at inclusion in the present system of some 143,000 workers who had lost their jobs in the year before it was adopted. "Some of these men," snapped he, "were dismissed for the good of the service. I can see no reasonable relation between giving these men the benefits of the Act and the regulation of interstate commerce."

Equally repugnant to Judge Wheat was the Act's provision allowing any worker hired by a railroad to count toward his pension all previous railroad service. Declared he: "To require the plaintiffs to contribute huge sums of money to be devoted to the payment of pensions and annuities based upon services long since completed and fully paid for seems to me to take their property without due process of law."

For all his legal reasoning, Judge Wheat was glad to recall that President Roosevelt, when he signed the Retirement Act, had declared: "Decision on this bill has been difficult. . . . [It is] still crudely drawn and requires many changes and amendments at the next session of Congress."

Last week, Attorney General Cummings promised a quick appeal to the U. S. Supreme Court.

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