Vierhus

Not until just before coming on to the bench had 1 seen Judge Cushman’s able opinion. Frye Co. v. Vierhus (D.C.) 12 F.Supp. 597 . There has been no opportunity to make the research into the many authorities cited by him and by counsel on both sides. As suggested in my dissent in the first Fisher Flouring Cases, these authorities develop the discussion of the powers of Congress beyond prior presentations.

The collector, through the District Attorney representing him, very properly is advised that he cannot agree, for any length of time, to refrain from performing his duties under the statute. I am, therefore, concurring in ordering a restraint of the collection until this court decides finally upon the merits of the constitutional question whether it has the power to restrain. Otherwise the collection may prevent the consideration of the merits of the claim to injunctive relief.

One of the questions before us is whether a federal sovereignty, limited to certain delegated powers, can render itself immune from restraint in the exercise of powers not delegated? That is, in substance, can Congress in effect nullify the Constitution? Must the legislation be so construed?

Many…