CONGRESSIONAL RECORD-SENATE SENATE - GovInfo

1584 CONGRESSIONAL RECORD-SENATE JANUARY 8 8463. Also, petition of the Union League Club, of the city

of New York, asking that the Government of . the United states further restrict · immigration of undesirable persons from Russia to the United States, and take measures to promptly deport any aliens guilty of unlawful action in subversion of the form of the Government of the United states; to the Committee on Immigration and Naturalization.

8464. Also, petition of the Bronx Chamber of Commerce, urging Congress to note the advice of the President in the matter of bringing about relief under present labor conditions, and to back his policy of discretion by making such provisions as he might suggest; to the Committee on Labor.

8465. By Mr. ENGLEBRIGHT: Petition of Mining Asso- · ciation of California, through its secretary, Mr. C. S. Brooks, favoring the elimination by repeal of all income taxes on the income from gold. mines operated in the United States, etc.; to the 'Committee on Ways and Means.

8466. Also, petition of Grand Parlor, Native Sons of the Golden West, f;tpproving without reservation the policy indicated in measures now before Congress for suspension of immigration from all countries, including the Philippines, for a term of years; to the Committee on Immigration and Naturalization.

8467. Also, petition of the annual meeting of the California Cattlemen's Association. San Francisco, Calif., December 13, 1930, indorsing the efforts of Farm Board to place system of marketing agricultural products on a firm and sound foundation; to the Committee on Agriculture.

8468. Also, petition of Hydraulic Parlor, No. 56, Native Sons of the Golden West, of Nevada City, Calif., approvmg without reservation the policy indicated in measures now before Congress for suspension of immigration from all countries, including the Philippines, for a term of years and protesting against an exception being made in favor of ·Filipinos, as demanded by Hawaii, etc.; to the Committee on Immigration and Naturalization. .

8469. By Mr. FINLEY: Petition of Claude L. Hammons and other ex-soldiers of Barbourville, Ky., urging part or full payment on adjusted-compensation certificates; to the Committee on Ways and Means. -

8470. By Mr. HILL of Washington: Petition signed by Keld M. Bache and other World War veterans of Sprague, Wash., asking for the prompt passage of the Garner bonus bill, H. R. 15589; to the Committee on Ways and Means.

8471. By Mr. KVALE: Petition of Adwell-Ashley Post, No. 180, American Legion. Renville, Minn., by Paul W. Glander, commander, and Quincy E. Boynton, service officer, w·ging enactment at once of legislation providing for ' immediate and full payment of adjusted-service certificates; to the Committee on Ways and Means.

8472. By Mr. PRALL: Petition from residents of the eleventh district of New York, urging the passage of House bill 7884 providing for the exemption of dogs from vivisection in the District of Columbia; to the Committee on .the District of Columbia.

8473. Also, petition from residents of the eleventh district of New York, urging the passage of House bill 7884 providing for the exemption of dogs from vivisection in the District of Columbia; to the Committee on the District of Columbia.

8474. By 1\u. SMITH of West Virginia: Resolution of the Advertising Club, of Huntington, W.Va., protesting against the proposed increase on first-class mail; to the Committee on the Post Office and Post Roads.

8475. By Mr. TREADWAY: Petition of Boston <Mass.) Local, Journeymen Stone Cutters' Association of North America, for the use of local stone in public buildings, the use of local labor in preparing stone, the payment of prevailing local wages, and the limitation of working hours to eight hours a day and five days a week; to the Committee on Public Buildings and Grounds.

8476. Also, petition of certain registered voters of the first congressional district of Massachusetts, for the enactment of legislation exempting dogs from vivisection in the District of Columbia; to the Committee on the District of Columbia.

8477. By Mr. WELCH of California: Petition of 50 citizens of the fifth congressional district, San Francisco, Calif., urging the enactment of House bill 7:884. for the exemption of dogs from vivisection in the District of Columbia; to the , Committee on· the District of Columbia.

SENATE THURSDAY, JANUARY 8, 1931

<Legislative day of Monday, January 5, 1931)

The Senate met in executive session at 12 o'clock meridian. on the expiration of the recess. .

The VICE PRESIDENT. The Senate, as in legislative session, will receive a message from the House of Representatives.

MESSAGE FROM THE HOUSE

A message from the House of Representatives by Mr. Chaffee, one of its clerks, announced that the House had passed the bill <S. 3273) to authorize the Postmaster General to issue additional receipts or certificates of mailing to senders of any class of mail matter and to fix the fees chargeable therefor, with amendments, in which it requested the concurrence of the Senate.

The message also announced that the House had passed bills and a joint resolution of the following titles, in which it requested the concurrence of the Senate:

H. R. 8568. An act to compensate the Post Office Department for the extra work caused by the payment of money orders at offices other than those on which the orders are drawn;

H. R. 15592. An act making appropriations to supply urgent deficiencies in certain appropriations for the fiscal year ending June 30, 1931, and for prior fiscal years, to provide urgent supplemental appropriations for the fiscal year ending June 30, 1931, and for other purposes; and

H. J. Res. 357. Joint resolution classifying certain official mail matter.

ENROLLED BILLS SIGNED

The message further announced that the Speaker had affixed his signature to the following enrolled bills, and they were signed by the Vice President:

H. R. 13130. An act granti;ng the consent of Congress to the Louisiana Highway Commission to construct, maintain, and operate a free highway bridge across the Bogue Chitto River between Sun and Bush, St. Tammany Parish, La.; and

H. R.14446. An act to extend the time for completing the construction of a bridge across the Mississippi River at or near the city of Prairie du Chien, Wis.

CALL OF THE ROLL

.- Mr. FESS. Mr. President, I suggest the absence ·of a quorum.

The VICE PRESIDENT. The clerk will call the roll. The Chief Clerk called the roll, and the following Senators

answered to their names: Ashurst Fess King Barkley Fletcher La. Follette Bingham Frazier McGill Black George McKellar Blaine Gillett McMaster Blease Glass McNary Borah Goff Metcalf Bratton Goldsborough Morrison Brock Gould Morrow Brookhart Hale Norbeck Broussard Harris Norris Bulkley Harrison Nye Capper Hastings Oddle Car a way Hayden Partridge Carey Hebert Phipps Connally Heflin Pine Copeland Howell Pittman Couzens Johnson Ransdell cutting Jones Robinson, Ark. Dale Kea.n Robinson, Ind. Davis Kendrick Sheppard Dill Keyes Shipstead

Shortridge Smith Smoot Steck Steiwer Stephens Swanson Thomas, Idaho Thomas, Okla. Townsend Trammell Tydings Vandenberg Walcott Wa.lsh,Mass. Wa.lsh,Mont. Waterman Watson Wheeler Williamson

The VICE PRESIDENT. Eighty-six Senators swered to their names. A quorum is present.

have an-

.1931 CONGRESSIONAL RECORD-SENATE 1585 PROPOSED UNANIMOUS-CONSENT AGREEMENT

Mr. McNARY. Mr. President, I propose the following unanimous-consent agreement.

The VICE PRESIDENT. Let it be reported. The CHIEF CLERK. The Senator from Oregon offers the

following: Ordered, by unanimous consent, that after the hour of 4

o'clock p. m. to-day no Senator shall speak more than once nor longer than 15 minutes upon the motions of the Senator from Montana (Mr. WALSH] to request the President of the United States to return to the Senate the notifications of the confirmation of the nominations of George Otis Smith, Marcel Garsaud, and Claude L. Draper, respectively, to be members of the Federal Power Commission, .and that at not later than 6 o'clock p. m.

· to-day the Senate proceed, without further debate, to vote upon the said motions.

The VICE PRESIDENT. Is there objection? Mr. WALSH of Montana. Mr. President, in view of the

fact that quite a number of Se:pators have signified their purpose of speaking on the pending motions I shall be obliged to object to the unanimous-consent agreement.

Mr .. McNARY. Will the Senator consent to limiting de-bate after 4 o'clock? .

Mr. WALSH of Montana. I would not like to assent at this time to any agreement either for a vote or a limitation of debate. Later in the day I may be able to do so.

Mr. McNARY. I shall be very glad if the Senator will cooperate with me so that we may come to a vote.

The VICE PRESIDENT. Objection is made to the proposed agreement.

REPORTS OF NOMINATIONS

Mr. JOHNSON, from the Committee on Commerce, reported favorably the nominations of sundry officers in the Coast and Geodetic Survey, which were placed on the Executive Calendar.

Mr. WALSH of Montana, from the Committee on the Judiciary, reported favorably the nomination of Lynn Smith, of Alaska, to be United States marshal, division No. 4, District of Alaska, which was placed on the Executive Calendar.

MUSCLE SHOALS CORRECTION

A13 in legislative session, Mr. SMITH. Mr. President, I desire to call attention to a

misstatement of fact by the Associated Press, and I should like to have a correction made.

The Washington Post of this morning, in speaking of the conferees on the Muscle Shoals matter, says:·

Senator SMITH, Democrat, South Carolina, and Representatives REECE, of Tennessee, and RANSLEY, of Pennsylvania, Republicans, voted against the agreement.

Mr. President, that is an entire misstatement of the facts. The Senate conferees were thoroughly in accord. One of them is present. I had hoped that both the others might be. The disagreement arose amongst the Members of the House.

I wanted to make that correction, because I had flattered myself that I had a good deal to do with bringing about the accord between the three representatives of the Senate.

I hope the press will make the correction I have indicated. DROUGHT RELIEF--cONDITIONS IN ARKANSAS

Mr. BRATTON obtained the floor. Mr. CARAWAY. Mr. President, will the Senator from

New Mexico yield to me for a brief statement? The VICE PRESIDENT. Does the Sen~jor from New

Mexico yield to the Senator from Arkansas~ Mr. CARAWAY. I ask the Senator if he will indulge me

while I read two or three telegrams? The VICE PRESIDENT. Does the Senator from New

Mexico yield for that purpose? Mr. BRA'ITON. I do. Mr. CARAWAY. I wish to detain the Senate but a mo

ment or two. In view of Mr. John Barton Payne's statement before the Committee on Appropriations I wired George E. Morris, a lawyer of high reputation and one who undertook to address the crowd at England, Ark., last Saturday. I have this telegram fu reply:

LXXIV--101

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ENGLAND, ARK., January 7, 1931. Senator T: B. CARAWAY, .

Washington, D. C.: Four hundred people appeared at England Saturday demanding

food. Red Cross is now supplying $10 worth of groceries per month· at retail price where there are 10 in family. Six dollars for family of six. Equivalent to 1 cent a meal. Over 1,000 issued food cards since Saturday. - Crowd still coming in daily.

G. E. MORRIS.

It requires no comment to demonstrate that 1 cent per meal at the present retail prices of food is wholly inadequate. I have a second telegram from Mr. Morris reading:

ENGLAND, ARK., January 8, 1931. Senator T. H. CARAWAY:

Red Cross has given no adequate relief. None promised. School children on starvation. Mules, horses, and other livestock perishing from lack of food. Loads of feed needed. No credit available. Tell Payne to send nonpolitical committee and will verify my statements.

G. E. MoRRIS.

I have a statement that was sent to me by a man of character, and therefore I know it contains the interview purported to have been given, because it was given to him. It comes from Forrest City, Ark., and reads: . FORREST CITY, ARK., January 5 (U. P.) .-Hundreds of persons barefooted, others living for weeks on cornbread made of water and meal without salt or baking powder, and many without sufficient clothing. ·

"That is the situation here," said Carl R. Myers, Red Cross field worker, who has been placed in charge of relief work in this county. "It is the most serious we have known and far worse than the Mississippi flood of 1927.''

I digress long enough, Mr. President, to say that Mr. Myers is one of the disaster agents of the Red Cross, sent down there by the organization for which Mr. Payne professed to speak. Mr. Myers has an intimate personal knowledge of conditions, and I want to continue his. statement:

" I served in Russia when the refugees were crying • bread, bread,' and in China at the time of the earthquaqe, but neither can equal the condition here in eastern Arkansas.

HUNGER IS EVERYWHERE

" Unlike a flood, cyclone, or earthquake this destitution has crept up slowly. The people were unaware of it. Even citizens of Forrest City do not realize the acuteness of the situation. Our committee went into house after house and found nothing but hunger and starvation.

" Hundreds and hundreds are :flocking to Red Cross centers whlch have been established in each township. We are not attempting to give clothing. Women are barefooted. Men's knees are dressed in ragged clothing. Children are not sumciently dressed.

TWENTY THOUSAND NEED HELP

"After making a survey of St. Francis County we estimate we will have to care for at least 4,000 families, approximating 20,000 people, during the winter. The Red Cross allows $5 per month to a family of tive for food. Rations are issued twice a week. ·This is not sumcient, but will keep them alive."

That is the statement of Mr. Myers, the field representative of the Red Cross on the ground. The other telegrams were from Mr. Morris.

I want to call attention to a statement of a gentleman from whose letters I have heretofore quoted. I refer to Mr. E. A. Rolfe, county judge of St. Francis County, a business man of large experience and a man who has been honored by his county every time he has ever asked anything at the hands of its people. For nearly 20 years he has been judge in that county, the highest office that can be held within the county. I shall omit the body of the letter, but I want to call attention to one statei?ent. He says:

The Red Cross is doing some good work here furnishing about $1 per head per month, say, five in family it supplies $5, and so on, per month.

That is the adequate relief starving people are securing at the hands of the Red Cross.

Mr. President, I hesitate to refer to it, but I have here an editm·ial that appeared in the New York Herald Tribune denouncing a.ll of us w:Ro have asked for relief of suffering humanity. In the same issue was a news item. I shall not call attention to it for the purpose of criticizing New York, for the editor of this newspaper does not speak for anybody but himself. ·

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1586 CONGRESSIONAL RECORD-SENATE JANUARY 8 The football teams of the Military Academy and of the

Naval Academy played a game of football in New York for charity. Every comm.unity in America was represented at that game. I myself had a boy there. People from every community bought tickets. The net profit was $600,000, which was given to the local Salvation Army. The editor of this newspaper gleefully published a statement th~t he had learned that not a dollar of this $600,000 was to go outside of New York City, but that New York City would be permitted to keep every dollar of it. It kept that $600,000, Mr. President, and then the newspaper gladly and gleefully proclaimed in its columns that nobody else would get a nickel of it, although the money came from every community in America. Then it criticizes those of us who do not want our people to starve. I say, Mr. President, that if they had given us that $600,000 for the entire State we would not have asked a nickel from anybody else. They kept it, and gloated over it, and then criticize us who want some relief accorded to suffering and destitute people in our States. We do not ask relief to be given as a charity, Mr. President; we ask merely for the opportunity of borrowing money, in order that relief may be extended, and of returning every nickel of it.

As a mere matter of record, because the editorial which I shall read does not represent the sentiment of anybody but the editor, I want to embalm in the CONGRESSIONAL RECORD a reference to a man by the name of Thomas Ferguson, general manager of the Manchester Evening Herald, published in South Manchester, Conn. The editorial in the newspaper for which he is responsible reads:

ARK.ANSA W " RIOT "

Doubtless the story of the "bread riot" at England, Ark., by this time has flashed all around the world and has been read with mixed emotions, some of them gleeful, in every community where there is a daily newspaper.

" Starving Americans Riot! " a delectable headline in Germany or Soviet Russia! One may even visualize a Japanese or a Chinese refugee from the famine areas reading it with equanimity.

Yet the fact that several hundred farmers of a particular Arkansas region gathered together at one particular time in, one particular little village and demanded food for themselves and their children on the threat of helping themselves isn't causing any panic feeling in the United States.

It has too many of the earmarks of having been nicely arranged. It has the odor of political propaganda. It is even observable that in the dispatches from the Arkansas town there is repeated again and again the name of only one individual, evidently that of the village lawyer. This gentleman seems to have bossed the whole situation, restraining the desperate drought sufferers and seeing to it that the Red Cross provided for their immediate necessities. One wonders whether he couldn't have made a pretty good guess in advance at the number of farmers who would show up in town on that particular Saturday and as to the special occasion for their assemblage--whether it wasn't a sort of invitation affair.

As .a matter of fact, there is no reason but that of sheer slovenly laziness for Arkansas farmers being without food. All these people do is to raise a little cot ton, sell it, and eat up the proceeds. Occupying fertile lands that would grow anything, they depend on their cotton sales for pra~tcally everything edible but their razorback pork. It is the easy way and gives more time for eating "chawterbacker" in the sun.

To be sure, there was a drought. But it wasn't the drought that killed the cotton market, and if it had rained every Sunday all last summer these sh.iftless Arkansans would probably have been just about as hard up as they are now.

Altogether it is not in the least surprising that Senator CARAWAY, who is sent to the Senate by the votes of these now " starving " folks, should to-day be getting ready another bill appropriating Federal funds to feed "drought sufferers." That was a first-class bet the minute the news of the England "riot" broke. That, it is to be suspected, is what the riot was for. That and an entry into politics for the aforesaid vUlage lawyer.

Mr. President, I do not know the writer of that editorial. I do know, however, what sort of a man he is. I know he is a disgrace to whatever color his skin happens to be; I know he is an insult to any community in which he attempts to fix his residence; and he speaks for nobody who has any sense of honor or any human sympathy. I want to. embed his editorial in the RECORD as a monUm.ent to him and his posterity.

Mr. HEFLIN. Mr. President, wi'll the Senator from Arkansas yield to me for a moment?

The VICE PRESIDENT. The Senator from New Mexico [Mr. BRATTON] has the floor. Does he yield to the Senator from Alabama? ·

Mr. BRATTON. I yield.

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Mr. HEFLIN. Mr. President, I should like to call to the attention of the Senator:from Arkansas the statement made yesterday by Mr. HAMILTON FisH, of New York, published in the Washington Star last night, that the uprising in Arkansas and Oklahoma was brought about by communists. That is what I intended to bring to the attention of the Senator from Arkansas to-day. Wt_...;n the Senator from New Mexico shall have concluded I will address the Senate upon the drought situation and the importance of legislating on the question of drought relief instead of discussing the Power Board nominations. We should be considering that matter at nig~t and not in the daytime.

OIL CONFERENCE IN WASHINGTON Mr. THOMAS of Oklahoma. Mr. President, on the 4th of

the present month the Governor of Oklahoma and the Governor of Kansas issued a call for an oil conference to be held in the city of Washington on the 15th instant. I ask unanimous consent to have printed in the RECORD a copy of that call.

There being no objection, the call was ordered to be printed in the RECORD, as follows:

JANUARY 4, 1931. On account of the dire distress in the petroleum industry of the

United States and with particular reference to saving 300,000 small wells having a settled daily production of 500,000 barrels from cer

'tain abandonment if present conditions continue and th e throwing out of employment of hundreds of thousands of men employed in operating them and employed in kindred industries dependent upon the oil industry, thus causing great dist ress to their families, we have decided to ask the governors of the oil-producing States to join us in calling a conference at Washington, D. C., to be held at Mayflower Hotel, commencing 10 a. m. January 15, for the purpose of working out plans for immediat e relief for this great basic industry. The farmers and landowners of t he oil-producing States own one-eighth royalty in all the oil produced, and in addition the oil-producing companies have under lease millions of acres, of which an annual rental of $1 per acre is paid in addition to the bonus or purchase price of the leases themselves, which has gone far to pay the farmers' mortgages, taxes, and furnish h im with a living during recent periods of low-priced farm products and crop failures so that relief to the petroleum industry is also to a great extent a farm-relief measure. The emergency is so great that any considerable delay will result in the destruction in the petroleum industry, particularly 15,000 or 20,000 individual producers engaged therein known as independents, as well as the independent refiners and marketers. The present situation, in our opinion, has been brought about by a loss of market for oil produced in the United States occasioned by ever-increasing imports of crude oil and refined products, especially gasoline, which imports have absorbed in large measure the markets of the Eastern States; which were formerly supplied by oil produced in the Eastern States in the mid-continent field and California. The whole Southwest is dependent to a great extent, directly or indirectly, upon the oil industry, which in turn supports many other lines of business engaged in manufacture of steel products, machinery, and other oil-well supplies. In fact, the distress in the petroleum , industry is not local to the States producing oil, but is being felt by. the whole United States through a loss of purchasing power amount~g to hundreds of millions of dollars per annum in the 19 States producing and refining oil by reason of which relief for the petroleum industry would automatically bring a measure of relief to the entire country. The plan contemplated is the appointment by the governor of each oil-producing State of 25 or more accredited delegates from each State, 20 of whom should represent the oil industry and 5 delegates from each State should represent the interest of the people generally. May we count on you as the governor of your State to Join us in making th.is call and appointing 25 or more delegates to represent your State? Due to the emergency of the matter, will you please wire answer at earliest possible date to Governor Holloway?

W. J. HOLLOWAY, Governor of Oklahoma.

CLYDE M . REED,

• Governor ot Kansas.

FEDERAL POWER COMMISSION The Senate being in executive session, Mr. BRA'ITON. Mr. President, if we may now recur to

the matter pending before the Senate, namely, the motion of the Senator from Montana [Mr. WALSH] to reconsider the vote by which Messrs. Smith, Garsaud, and Draper were confirmed as members of the :federal Power Commission, I shall address myself to that subject.

On yesterday, Mr. President, the distinguished Senator from West Virginia [Mr. GoFF] discussed certain aspects of the facts involved as well as certain phases of the legal questions involved. A great part -of his eff-ort was devoted to the legal proposition that the new commission did not dismiss

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1931 CONGRESSIONAL RECORD-SENATE 1587 nor eliminate from Government service Messrs. Russell, King, and Bonner; that they went out of the service by operation of law; that is to say, that by the act approved June 23, 1930, they automatically lost their respective offices when the three commissioners qualified.

With that contention I disagree. Congress, with meticulous care, provided otherwise. In section 4 of the act to which I have adverted it is provided:

SEc. ~. Tbis act shall be held to reorganize the Federal Power Commission created by the Federal water power act, and said Federal water power act shall remain in full force and effect, as herein amended, and no regulations, actions, investigations, or other proceedings under the Federal water power act existing or pending at the time ' Of the approval of this act shall abate or otherwise be affected by reasons of the provisions of this act.

Of course, Mr. President, Messrs. Russell and King were appointed by an act of the former commission. Of course, they were appointed by a proceeding of the old commission, and, under the provision of the act to which I have just referred, they were continued in office until they were supplanted by an affirmative act of the new commission. For the commission to argue otherwise now or for Senators to assert the contrary on the floor of the Senate at this juncture is to fly in the face of tb.e plain provision of the act.

Our attention was called to a press dispatch appearing two or three days after. Messrs. King and Russell were dismissed in which Mr. Smith was quoted as saying that they were put out of Government service by virtue of the actthat is to say, by operation of law-and not by any act of the commission.

1\fr. President, that is untrue. It is unsound. It can not be sustained. How did those two men acquire their positions? Of course, it was by an act of the old commission. Indeed, it was by a proceeding of the former commission; and under this language that act and that proceeding of the other commission remained intact, and the employees remained in office until the three commissioners appointed under the new act affirmatively <Usmissed them from service. So there need be no evasion about that phase of the problem at hand.

Those two men, King and Russell, were not dropped. from Governmtmt service by operation of an act of Congress. They were dismissed from the public service by an affirmative act of Messrs. Smith, Garsaud, and Draper; and the responsibility must rest at their door instead of the door of Congress. It is an effort to evade responsibility, and nothing more.

The Senator from West Virginia [Mr. GoFF] undertook to argue yesterday that these men were dismissed from service, that they lost their respective offices, by virtue of the language contained in section 3 of the act. Not so. Section 3 of the act relates to the reorganization of the commission. It provides to that effect in this language:

Notwithstanding the provisions of section 1 of this act, the Federal Power Commission as constituted upon the date of the approval of this act shall continue to function until the date of the reorganization of the commission pursuant to the provisions of such section. The commission shall be deemed to be reorganized upon such date as three of the commissioners appointed as provided in such section 1 have ~ken omce, and no such commissioner shall be paid salary for any period prior to such date.

Plainly, that section relates to the reorganization of the commission itself-that is to say, the old commissioners should cease to hold office when the new ones should qualify. It relates to the succession in membership of the commission, and has nothing whatever to do with the employees of the commission. That matter is dealt with by section 4 of the act, which expressly provides that no action or proceedings of the old commission shall abate or cease to be effective by reason of the provisions of this law.

So, Mr. President, let us clear up that phase of the problem and place the responsibility where it belongs. It rests squarely upon the shoulders of the new commission, meaning Messrs. Smith, Garsaud, and Draper, who participated in the action of which we now complain.

Also, the Senator from West Virginia laid great stress during the course of his remarks yesterday upon the opinion rendered by the Supreme Court in the case involving the

validity of the action of the President in removing the postmaster at Portland, Oreg.

Mr. President, that case has no application here. It is not relevant in .this discussion. It is entirely extraneous to the point involved, and relates to a different matter altogether. The question there was the procedure to remove an officer admittedly in office. That case determined the procedure to oust one who held a conceded title to an office; the question being whether the President could remove such an officer in case the advice and consent of the Senate to his appointment were required.

The question involved here is whether these three -men hold title to the office, whether they have acquired any title. It is not a question of removing them from office- , that is to say, an office which they have legally acquired, and one the functions- of which they now properly discharge. So that the Portland, Oreg., case is entirely foreign to the point now confronting the Senate. They bear no relation to each other. They are as far apart as are the points of the compass. It would seem strange that those who undertake to sustain the argument that the Senate is powerless in this instance are driven to rely upon the Portland, Oreg., case as support for their legal contention that the Senate has lost jurisdiction, and therefore is without power to act further in the premises.

Mr. President, the point involved here is when title to an office of this character vests. It is whether title to the office vests upon the confirmation, followed by the formal notice to the President, although the notice goes forward within the 2-day period allowed by the rule of the Senate for the presentation of a motion to reconsider the vote by which the nominee was confirmed.

That is the sole question involved here, and that brings forward the question of the deraignment of title to this kind of an office. Its source, the place from which it springs, and the moment it is acquired by the appointee are the legal questions involved. It is my contention that under the Constitution the title to an office of this kind emanates from the nomination of the President and confirmation by the Senate; but, indeed, the confirmation of the Senate must be final. It must not be conditional. It must not be in the conditional stage.

That is the source from which the title emanates. It is my belief that the nomination is the appointment of the President.

The Constitution, in paragraph 2 of section 2 of Article II, provides that the President-

Shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds o! the Senators present concur; and he shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law-

And so forth. The source is twofold. It requires the concurrence of the

President, acting by way of a nomination, and that of the Senate, acting by way of confirmation.

Another provision of the Constitution permits each branch of the Congress to make rules to govern its own proceedings, that provision being paragraph 2 of section 5 of Article I, and reads:

Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds, expel a Member.

Acting under the authority thus conferred upon the Sen .. ate, it enacted Rule XXXVIII, section 3 of which provides:

When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate; but 1! a notification of the confirmation or rejection of a nomination shall have been sent to the President before the expiration of the time within which a motion to reconsider may be made, the motion to reconsider shall be accompanied by a motion to request the President to return such notification to the Senate. Any motion to reconsider the vote on a nomination may be laid on the table without prejudice to the nomination, and shall be a final disposltion of such motion.

1588 CONGRESSIONAL RECORD-SENATE JANUARY 8 Under such rule, promulgated by constitutional authority,

Mr. President, the Senate has reserved unto itself the power to entertain a motion to reconsider if the motion is made at any time within the next two days of actual executive session of the Senate. Admit tedly, this motion was made within the permitted time. It is not untimely; the only contention being that because of the procedural step of having notice of the vote taken on the confirmation transmitted to the President, the Senate is powerless to act further, and is shorn of its authority under this rule to reconsider the vote by which these nominees were confirmed.

Mr. President, the notice to the President of the vote taken by the Senate is not mandatory under any provision of the Constitution nor any statute. It is purely a rule of the Senate, designed to facilitate orderly procedure.

Mr. PITTMAN. Mr. President-- · The PRESIDING OFFICER (Mr. FEss in the chair).

Does the Senator from New Mexico yield to the Senator from Nevada?

Mr. BRATTON . . I yield to the Senator from Nevada. Mr. PITTMAN. Is not the Chief Executive presumed to

have knoVJledge of the rules of the Senate governing a confirmation?

Mr. BRATTON. Undoubtedly. Mr. PITTMAN. And that rule itself states that if the

motion to reconsider has been made within the proper time, but after the notice has gone forward, it shall be accompanied by a request to return the papers.

Mr. BRATTON. Exactly. I am glad the Senator from Nevada brought forward that very pertinent suggestion now. It was my purpose to discuss it later.

Undoubtedly the Executive is charged with notice of the rules of the Senate. Any rule promulgated by a legislative body pursuant to constitutional authority or by a department of the Government, whether it be National or State, constitutes constructive notice, the same as does the Constitution or a statute itself which confers the rule-making power. So, the Constitution providing that the Senate might

- make rules to govern its proceedings, and the Senate having made a rule retaining unto ~tself the power to entertain a motion to reconsider if made within two days, the Executive is charged with notice of the rule just as effectively and as bindingly as though the Constitution itself so provided. Therefore it can not be argued that these nominees received their commissions and took their oath of office without notice that the Senate might, within the 2-day period, entertain a motion to reconsider the vote by which they were confirmed.

Mr. PITTMAN. Mr. President, will the Senator yield? Mr. BRATTON. I yield. Mr. PITTMAN. If I remember the rule conectly, it ex

pressly gives notice to the President that the motion to reconsider may be given after he is notified of a nomination.

Mr. BRATTON. Exactly so. The rule contemplates that a motion may be made after the notice has been given to the President, because it expressly provides that in the event the notice has gone forward, the motion shall be accompanied by a request that the President return the papers to the Senate.

Obviously the Senate contemplated that in some instances the notice might go forward before the time in which a motion to reconsider might be interposed had expired; otherwise the Senate would not have provided by this rule that in the event that notice had gone to the President the motion to reconsider should be accrunpanied by a request for a return of the papers.

Mr. GEORGE. Mr. President, will the Senator yield to me?

Mr. BRATTON. I yield. Mr. GEORGE. In other words, the Senate has textually,

in the very language of this rule, P.rovided for identically this case.

Mr. BRATTON. Exactly so; just as well and as perfectly as does a well-tailored suit fit the anatomy.

Mr. GOFF. Mr. President, will the Senator yield to me? Mr. BRATTON. I yield.

Mr. GOFF. Do I understand the Senator to contend that the Senate can not waive this 2-day rule?

Mr. BRATTON. I have not argued that. I do not think that question is involved.

Mr. GOFF. Does the Senator think that when the Senate hears a statement made that it has advised and consented to a nomination, and that the President will be so notified, and there is no dissenting voice from the floor, and the President is so notified, the Senate yet retains the right to enforce the rule to move for a reconsideration?

Mr. BRATTON. Undoubtedly so. Mr. GOFF. Then the Senate can only waive its rules by

expressly and literally waiving, and not' by conduct, action, or implication. Is that the Senator's position?

Mr. BRATTON. I have not argued that; but such a contention is far-fetched, according to my view of the situation at hand.

Mr. WHEELER.· Mr. President, will the Senator yield to me?

Mr. BRATTON. I yield. Mr. WHEELER. As I understand it, it is not a question

of having waived. There is no question of the Senate having waived its right to make a.motion to reconsider. That question is not involved in any of the arguments at all.

Mr. GOFF. Then the Senator from Montana, of course, assumes that the conduct of the Senate is in no sense a waiver of any of its rules, if it sits silently by and hears the announcement that notification will be sent to the President.

Mr. WHEELER. If the Senator from New Mexico will permit me-

Mr. BRATTON. I yield. Mr. WHEELER. I simply state, as I said a moment ago,

that I do not think that question is involved at all. I think the Senator from West Virginia has missed the point with reference to the question of waiver, if he will pardon the suggestion.

Mr. GEORGE. Mr. President, will the Senator from New Mexico yield to me?

Mr. BRATTON. I yield. Mr. GEORGE. May I suggest to the Senator from West

Virginia that under no fair interpretatio~ can the sending of the notice prior to the expiration of the time fixed in paragraph 3 of Rule xxxvm be anything more than a waiver of the time the Senate may await its own pleasure to send that notification. It is merely a waiver of the time when it will permit its officer to notify the President.

Mr. GOFF. Does the Senator contend that the rule is not waived by the Vice President stating that the President will be notified?

Mr. GEORGE. The rule that the nomination must remain here two days is waived, but not the rule of the Senate which gives the right to make a motion to reconsider.

Mr. GOFF. Does not the Senator, in reaching that conclusion, assume that the action of the Vice President, with the knowledge and consent of the Senate, does not in any sense waive the rule?

Mr. GEORGE. It does not in any sense waive the rule to make a motion to reconsider.

Mr. GOFF. The Senator must assume that. Mr. GEORGE. 'l'here are two rules. Under one of the

rules a motion to reconsider the vote by which the Senate consented to the nomination is provided for. Under the other rule the notification of the action of the Senate is to be withheld during the period when a motion to reconsider may be made. The sending of the notice in advance of that time is a mere waiver of the time limit.

Mr. GOFF. It does not waive the rule; that is the Senator's position?

Mr. GEORGE. No; it does not waive the rule. Mr. BRATTON. Mr. President, if I may be permitted to

proceed now, at the time of the interruption, which I welcomed, I was undertaking to put forward the argument that under subdivision 3 of Rule xxxvm the Senate had expressly provided that in the event the notice had gone forward to the President. before the motion to reconsider was interposed, such motion should be accompanied by a request that

1931 CONGRESSIONAL RECORD-SENATE 1589

the President return the papers, thus clearly contemplating exactly such a situation as now confronts the Senate, in which event the President should return the papers. Constructive knowledge of that rule accompanied the notice in thiS case to the White House. The President was charged with constructive knowledge that under the rule of the Senate it reserved the power to entertain a motion to reconsider if it were interposed within the two days' time.

Mr. GOFF. Mr. President, will the Senator yield for just a question?

Mr. BRATTON. In just a moment. The succeeding section of Rule XXXVIII, paragraph 4,

provides: Nominations confirmed or rejected by the Senate shall not be

returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending, unless otherwise ordered

. by the Senate.

Mr. President, the two provisions of the rule must be construed together. I think no one in this body will controvert the general proposition that all rules with respect to the same subject matter must be construed together, and each must be given force and effect, if that can be done. That is the rule of statutory construction. It is the rule of constitutional construction. It is the interpretation to be accorded rules promulgated by a legislative body. So that if paragraphs 3 and 4 can both be given effect and harmonized that must be done.

Viewing the paragraphs of the rule from that angle they mean this, that the notice shall not go forward to the President within the 2-day period unless the Senate shall so order. That is expressly provided in paragraph 4. But paragraph 3, contemplating that very action provides that in such event a motion to reconsider shall be accompanied by a request for the return of the papers, which clearly ·indicates that in adopting the rule the Senate had in mind that such a notice might go forward to the President, pursuant to an order of the Senate, aud still the power to reconsider should not be waived because the Senate, in contemplation of that very situation, has provided that the motion shall be accompanied by a request for the return of the papers, exactly as the motion of the Senator from Montana provides in the instant case.

Mr. GEORGE. Not only that, but I call the Senator's attention to the fact that the rule textually provides that in case a motion to reconsider is pending, the Senate may order the notice to go forward.

Mr. BRATTON. Exactly. Mr. GEORGE. Which could not be a waiver of the right

to reconsider. Mr. BRATTON. Still the rule provides that if the notice

goes forward pursuant to an order of the Senate, and a motion is made to reconsider, it shall be accompanied by a request for the return of the papers, which conclusively indicates that the Senate had in mind the interposition of a motion to reconsider after the notice had gone forward pursuant to an express order of the Senate.

Mr. GOFF. Mr. President, will the Senator yield to me? Mr. BRATTON. I yield to the Senator from West Vir

ginia. :Mr. GOFF. Mr. President, the construction placed upon

paragraphs 3' and 4 of Rule XXXVIII would undoubtedly be the correct construction if it were not for the provision" unless otherwise ordered by the Senate.'' The Senator from New Mexico says that paragraph 3 must be construed as a part of paragraph 4.

Mr. BRATTON. Certainly. Mr. GOFF. I quite agree, if he gives full meaning and in

tent to the expression " unless otherwise ordered by the Senate." If those words were not in paragraph 4, then YQU could construe paragraph 3 and paragraph 4 as coordinating the mind and the sense and the view and the consent of the Senate relative to any such nomination.

Let me proceed and just say one more thing; and I am not going to interrupt the Senator, because I want him to go on with his argument without interruption.

We have paragraph 3, which states that if a motion to reconsider is made, then of course it must be accompanied by a request to return the notification papers;· but that is not in conflict with the full intent and meaning of paragraph 4, wherein it is expressly provided " unless otherwise ordered by the Senate."

When these nominations were confirmed the President pro tempore announced to -the Senate, with these rules before him, "The Senate has advised and consented to the nominations and the President will be notified," and no objection was made. When the President pro tempore says, "The Pt·esident will be notified," he is making that statement under the expression" unless otherwise ordered by th.e Senate." If that statement is made, I submit to the Senator from New Mexico and the Senator from Georgia that it involves a waiver of the right of the Senate to invoke the full literal meaning of paragraphs 3 and 4, which precede the language used. The Senate can not sit idly by and have a statement made which involves its consent to a condition which is contrru·y to the position now taken by the Senator from New Mexico.

I do not understand what the word "waiver" means in the law, either constitutionally or legally construed, if it means that we can have a situation which contradicts what is the argument of the Senator and say the Senate is not bound by it.

Mr. BRATTON. While entertaining great deference for the opinion of the distinguished Senator from West Virginia, our views upon this subject are hopelessly in conflict. It is true that paragraph 4 of Rule XXXVill provides that no notice shall go forward to the President within the 2-day period unless otherwise ordered by the Senate. In adopting paragraph 3 the Senate certainly did not contemplate that a notification would go to the President within two days in conflict with paragraph 4. It certainly did not contemplate that the Secretary of the Senate would send such a notification unless ordered by the Senate, and so, in adopting paragraph 3 and providing for a request for the return of the papers, the Senate undoubtedly contemplated a notice which had gone forward to the President within the 2-day period pursuant to an order of th~ Senate. Undoubtedly the Senate did not have in mind that the Secretary of the Senate would send such a notice within the two days' time unless authorized by the Senate. Certainly it did not contemplate an unauthorized act by an employee of the Senate. It contemplated a notice that went to the President within the two days' time by virtue of an order of the Senate exactly as is provided in paragraph 4. Paragraph 3 provides the machinery with which to deal with exactly that situation by providing that in such event the motion to reconsider shall be accompanied by request for return of the papers.

Mr. BARKLEY. Mr. President--The PRESIDING OFFICER. Does the Senator from

New Mexico yield to the Senator from Kentucky? Mr. BRA'ITON. In just a moment. Indeed, the argu

ment advanced by the Senator from West Virginia rests upon the assumption that the Secretary of the Senate would send notice to the President within the 2-day period without authority. We can not indulge any such violent assumption as that. On the contrary, we must assume that the Senate was dealing with the recall of a. notice which had gone forward to the President within the 2-day period pursuant to paragraph 4 of Rule XXXVIII of the Senate, which means by order of the Senate.

I now yield to the Senator from Kentucky. Mr. BARKLEY. Let us suppose, instead of the notification

having been sent to the President as it was sent, by announcement of the Vice President that it would be done without objection on the part of any Senator which could have been imposed, that there had been a motion made to notify the President at once notwithstanding the 2-day provision and that there had been a roll call on that motion and by majority vote the Senate ordered that the President be notified of its action with reference to the confirmations. What would have bee.n the legal effect of that action? What

1590 CONGRESSIONAL RECORD-SENATE JANUARY 8 would have been the reasonable presumption as to the intention of the Senate with reference to reconsideration if, pursuant to such course, these men had taken the ·oath of office as they did?

Mr. BRATTON. I think that such action would have carried notice to the President burdened with constructive knowledge of the provisions of paragraph 3 of Rule XXXVITI, which empowers the Senate to entertain a motion to reconsider if it is made within the 2-day period. The notice to the President, whether sent in circumstances as outlined by the Senator from Kentucky or otherwise, is merely a notice that on a certain day the Senate, by an affirmative vote, advised and consented to the nomination. That is all such notice does. That is the only function it performs. It does not involve the power of the Senate to reconsider the vote. It is merely notice of the vote itself.

Mr. BARKLEY. I understand; but is it possible to conceive of the Senate by a positive action authorizing notification to the President under circumstances of this sort unless it carries with it some inference at least that the Senate in some way waives some right that it might have under the rule providing for reconsideration? How would the Senate be induced or persuaded to send a notification to the President in view of the 2-day right unless it intended by that action to carry at least some inference or suggestion or presumption that the Senate did not intend further to pursue the matter?

Mr. WALSH of Montana. Mr. President---The PRESIDING OFFICER. Does the Senator from New

Alexico yield to the Senator from Montana? Mr. BRATTON. I yield. Mr. wALSH of Montana. I rise to inquire whether the

case suggested by the Senator from Kentucky is not exactly the case contemplated by subdivision 4 of Rule XXXVIII, which reads:

Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending, unless otherwise ordered by the Senate.

We are now actually debating· a motion to reconsider. Some one moves that notice be sent to the President of the action theretofore taken by the . Senate. The Senator's question is, Suppose that motion is carried and the motion to reconsider is still pending?

Mr. BARKLEY. No; that is not my question. My understanding. is that where a motion to reconsider has been made within two days it may take a week to discuss it, but after that motion is properly entered and the Senate is in process of debating whether it shall reconsider its action, then there shall be no notification to the President without an order of the Senate.

Mr. WALSH of Montana. We can assume that the Senate does order .it done.

Mr. BARKLEY. It is difficult to assume it, because-Mr. WALSH of Montana. But the rule contemplates it. Mr. BARKLEY. It contemplates more than that, because

it may contemplate the situation in which we find ourselves now. In effect, on Saturday night when these nominations were confirmed, the Senate having ordered the President to be notified, ·he was notified prior to the institution of any motion to reconsider. · Mr. WALSH of Montana. It is simply the difference ·between the notice having gone forward before the motion ·is made ·or having gone forward after the motion is made and pending, and both conditions are contemplated by para-graph 4 of Rule XXXVIII. ·

Mr. BARKLEY. The difficulty in which I find myself is due to the fact that the Senate must have had some object in providing as it does where it orders notification of the President prior to the expiration of the two days. It must have intended something thereby. It certainly was not intended simply to make the record show we had voted on a certain proposition without the power on the part of the President or the appointee to do anything about it until the ·two days had expired.

Mr. WALSH of Montana. Is i~ not conceivable that the President bas an interest in knowing what action· has been taken, even though there is a motion pending?

Mr. BARKLEY. Of course, it might be academically asserted that the President would be interested in knowing the vote in the Senate on confirmation; but having in view the right of any Senator to make a motion to reconsider within two days, I am wondering what was in the minds of the framers of the rule when they· provided that the Senate, notwithstanding that right, should go ahead and notify the President that confirmation had been had. I can not understand that it is the duty of the President to wait and see whether some Senator will offer a motion to reconsider any more than it is the duty of the Senate to retain the nominations here until the two days have expired so that Members of the Senate may exercise their right.

Mr. BRATTON. The argument of the Senator from Ken- . tucky would lead inevitably t.o the conclusion that after a motion to reconsider is interposed and while it is pending, if the Senate by an affirmative vote made within the 2-day period directs that notice go to the President, the Senate would waive its power of further consideration of the motion, because the rule expressly provides that no notice shall go forward until the expiration of the time limit for making a motion to reconsider the same or while a motion to reconsider is pending unless otherwise ordered. The premise of the Senator from Kentucky would lead inevitably and erringly to the conclusion that if, on the first day after the Senate confirmed, a motion to reconsider were made, and 10 minutes afterwards the Senate directed that notice of confirmation go forward to the President, the motion would become anremic and the Senate would lose its power to consider the matter further. If sending notice to the President operates as a waiver to consider such motion, that would follow under the 'argument . submitted by the Senator from Kentucky.

Mr. WALSH of Montana. Mr. President---The PRESIDING OFFICER. Does the Senator from New

Mexico yield to the Senator from Montana? Mr. BRATTON. I yield. Mr. WALSH of Montana. I would like to submit this

further sl,lggestion in connection with the view expressed by the Senator from Kentucky: The right to move to reconsider inheres in each individual Member of the Senate. He has that right. The two days have not expired and some one moves that the President be notified of the action taken by the Senate. As the Senator from Kentucky suggests, that is debated and it is carried by a majority vote of the Senate. The majority of the Senate can not take away from the individual Senator the right he has under the rule to make a motion to reconsider. He has that right and it can not be taken away from him by a majority of the Senate. The rules could be suspended only by notice and by a twothirds vote.

Mr. BARKLEY. I do not know that that ever occurred, but assuming that the rule meant something, what would be the inference that would naturally flow from the action of the Senate in voting by a majority vote to notify the President that it had confirmed?

Mr. WALSH of Montana. I do not know, but the rule so provides. It may not be a very wise rule, but that is the rule.

Mr. GOFF. Mr. President, will the Senator yield? The PRESIDING OFFICER. Does the Senator from New

Mexico yield to the Senator from West Virginia? Mr. BRATTON. I yield to my genial friend from West

Virginia, but afterwards I should like to be permitted to proceed if I may.

Mr. GOFF. I thank the Senator from New Mexico. I have been very much interested in the analytical discussion submitted this morning. I do not desire to take any additional time, as we have discussed the matter very thoroughly in the two days in which we have proceeded, but I would like to call attention to paragraph 4 of Rule XXXVIII:

Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration o! the time limited for making a. motion to reconsider the same.

1931 CONGRESSIONAL RECORD-SENATE 1591 Unquestionably if it should stop there the rule. would demr,

unless the Senate unanimously or by a two-thirds vote set aside the rule, the Secretary notifying the President. Bu"then it provides:

For making a motion to reconsider the same, or while a motio::: to reconsider is pending.

Now if the motion to reconsider is pending and the Pres:dent i~ notified what would be the notification that wen';; from the Senate to the President? It would be that the nominees had been confu·med, b:ut that a motion to r~consider the nominations was then . pending. The President would then see that the rule did not permit him to go any farther because the notice to him would of necessity contain the statement that a motion to reconsider was pending. The conditions which happe~ed were these: "Unless otherwise ordered by the Senate."

My friend the Senator from Kentucky suggested th~t w; suppose that there is an announcement that the Pres1den .... be notified. Let me ask the Senator from New Mexico this question: Suppose that the nominees are confirmed by tl~e Senate and a Senator should rise and move that the President because of an emergency which brings to bear a great urge~cy, be immediately notified and there is no dissent from that motion, and the President is notified in the face of such a motion. Can it even be contended that the Senate has not waived the right to withhold action by the President?

I do not see how that can be unless we are going to say that a rule can never be waived in the Senate unless the question shall be put directly to every Senator present. Does the Senator from New Mexico understand that if this motion shall prevail then we shall have waived, literally and by implication, the force and effect of the right to move to reconsider?

we sent this notification to the President, and it was sent by the Vice President making the statement to the Senate, "The President will be notifi~d." It is immaterial what prompts the Vice President to say that, unless it is to bring

· to the attention of every Member of the Senate that a Senator will waive his right to move to reconsider if he does not then give notice that he will move to reconside1·. The Senator from Montana says we can not deny a Senator the right to invoke this rule unless there shall be a two-thirds vote of the Senate. There was a large attendance of the Senate as every Member of the Senate within the sound of my ~oice now knows; it can not be said that two-thirds of the Senate were not present at the . time that order was made by the Vice President, when he gave notice that the Senate had advised and consented to the confirmation.

Mr. BRATTON. Mr. President, from the proposition the Senator from West Virginia is urging, namely, that if notice goes to the President within two days' time it shall contain appropriate language to convey the information that a motion to ·reconsider is pending, I must dissent, because Rule xx:xvm itself, in paragraph 4, provides that-

Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending, unless otherwise

his argument, ·but I wish to ask him one or two questions, with his permission.

First, did the President have the power to nominate these :entlemen?

Mr. BRATTON. Certainly. Mr. SHORTRIDGE. Did the Senate have the power to

advise and consent to their appointment? Mr. BRATroN. No one would argue to the contrary. Mr. SHORTRIDGE. Did the President have the power to

appoint these gentlemen when notified that the Senate had advised and consented to their appointment?

Mr. BRATTON. That brings forward the question of what constitutes an appointment. I shall discuss that later.

Mr. SHORTRIDGE. One more question, and perhaps the Senator later will make answer. Is there not a universal presumption that official duty h~s been regularly performed?

Mr. BRATTON. Indeed there is; but the last question propounded by the distinguished Senator from California, according to my judgment, does no.t militate against the argument that the Senate has power to reconsider the vote by which these nominees were confirmed.

Mr. SHORTRIDGE. If the Senator will suffer another question--

Mr. BRATTON. Yes. Mr. SHORTRIDGE. I assume that, of course, it will be

a_.dmitted here by lawyers, by all, indeed-there may be wiser men here than lawyers--that the Senate may waive its standing rules?

Mr. BRATTON. Certainly. . Mr. SHORTRIDGE. Frequently from day to day we waive

a standing rule. Mr. BRATTON. Certainly. Mr. SHORTRIDGE. Will the Senator be good enough at

some phase of his argument, if he cares to do so, to consider this: That the Senate as a fact did consent and advise to the appointment of these gentlemen, and the President was in point of fact notified that the Senate had so consented and advised?

Mr. BRATTON. Yes. . Mr. SHORTRIDGE. If he was-and I assert that he

was--so advised, and he thereupon acted upon that advice or followed that advice and consent, the notice of which he had received, did he not perform a constitutional act in consummating, so to speak, the appointment of the gentlemen named and in question?

Mr. BRATTON. I think not, and I shall undertake to establish that proposition as I travel along.

I think the Senator from California will agree that paragraphs 3 and 4 of Rule XXXVlli must be considered together, in harmony with each other, so that each of them may be given force and effect, if such a construction can be accorded them. In other words, different sections of the rule should be considered in harmony with each other, instead of in conflict with each other, if such an interpretation can be indulged without doing violence to plain language. So we approach these two sections governed by that fundamental and well-recognized rule of interpretation.

Paragraph 4 provides: · ordered y the Senate. Nominations confirmed or rejected by the Senate shall not be

d returned by the Secretary to the President until the expiration That rule applies to nominations confirmed O! rejecte · of the time limited for making a motion to reconsider the same,

and all that is required to be contained in the notice is that or while a motion to reconsider is pending, unless otherwise on a certain day the Senate voted either to confirm or reject ordered by the Senate. the nomination. The rule does not provide nor contemplate · Undoubtedly we would presume that no such notice would that such notice shall contain anything respecting the go forward except by an order of the Senate. It can not pendency of a motion to reconsider. Consequently the be contemplated that an officer of the Senate would do an argument of the Senator from West Virginia with respect unauthorized thing. so, in approaching paragraph 3 of to the appropriate contents of sueh a notice is at variance Rule xxxvm and in giving attention to the language conwith the clear purport of the rule itself. tained therein with respect to the request for thE return of

Mr. SHORTRIDGE. Mr. President, will the Senator from the papers which must accompany a motion to reconsider, New Mexico permit a question? if the notice has gone forward, we must assume that the

The PRESIDING OFFICER. Does the Senator from New notice there contemplated and the notice there dealt with Mexico yield to the Senator from California? is one which has gone to the President within the 2-day

Mr. BRATTON. I yield to the Senator for the purpose he rule in obedience to an order of the Senate. In that case, states, though I should very much like to hasten along. in those circumstances, para~ph 3 of Rule ~ pro-

Mr. SHORTRIDGE. I do not wish to detain the Senate vides that the motion to reconSider shall be aceomparued by or to divert the Senator from New Mexico from the line of a request for the return of the papers.

1592 · CONGRESSIONAL RECORD-SENATE JANUARY 8 What sort of notice did the Senate have in mind when

it provided that a motion to reconsider should be accompanied by a request for the return of the papers if the notice had gone forward? Undoubtedly it had in mind a notice dispatched pursuant to an order of the Senate. In dealing with that situation in the framing of paragraph 3 of Rule XXXVIII the Senate provided that if the papers had gone to the White House before the motion to reconsider was interposed the motion to reconsider should be accompanied by a request for the return of the papers. The Senator from California, with his ripe legal experience, will not argue that in the adoption of paragraph 3 of Rule XXXVIII the Senate had in mind an unauthorized notice to the President; it had in mind a notice which went forward within the 2-day period in compliance with an order of the Senate.

Mr. SHORTRIDGE. Mr. President, will the Senator permit me to interrupt him?

The VICE PRESIDENT. Does the Senator from New Mexico yield to the Senator from California?

Mr. BRATTON. I do. Mr. SHORTRIDGE. Mr. President, if agreeable . to the

Senate, it is my purpose later to express my views in a statement of about 10 minutes, which I think will be quite sufficient; but for the moment, addressing myself to the Senator's thought, the President had a perfect right under 10,000 authorities to presume, and to act upon that presumption, that the notification of the action of the Senate was regularly given to him; that the officer delivering that notification llad duly performed his duty within any or all the rules of the Senate or the law; and, acting upon that presumption, the President had the constitutional right to act and to appoint the gentlemen named. That, in brief, is my view in response to the observations of the Senator.

Mr. BRATTON. Mr. President, I think entirely too much emphasis is being placed upon the notice to the President. It has been repeated, emphasized, and accentuated time and time again in the course of this argument. Let us see what that nbtice is. What function does it perform? Is it a link in the chain of title of a nominee? Does it add anything to his right to the office? Does it give him any authority to discharge the functions of his office and receive the emoluments of it? . None whatever. If we were speaking in terms of title to land, we would say that the notice was no muniment of title whatever. The notice in this case is merely a procedural step, an order of prccedure provided not by the Constitution or a statute but by the Senate rule to convey knowledge to the President that the Senate had advised and consented to the nomination. Title . to the office depends upon appointment and confirmation. The notice has nothing whatever to do with it. If the President had learned from the CoNGRESSIONAL REcORD, or othenvise, that the Senate had voted affirmatively to consent to the nomination on a certain day, his notice or knowledge would be just as effective. The notice has no other effect. It is in the nature of courtesy on the part of the Senate. It may be regarded as an act of comity between the Senate and the Executive.

Mr. SHORTRIDGE. But, Mr. President, the President received official notice of the action of the Senate.

:rv:rr. BRATTON. No more than a letter from the Senate. Mr. SHORTRIDGE. Oh, no. By an officer of this body

he received official notice. He did not gather that notice "'from newspapers, or from birds flying through the air. He received official notice; and thereupon his right and power to make the appointment sprang into immediate existence, and he exercised that power.

Mr. BRATTON. Mr. President, I undertake to lay down the proposition, and urge the argument here that a paper notice to the President that the Senate had taken a vote upon the confirmation of a nominee has no more official effect relating to the title to the office than would a communication from the Senate to the President that on a certain day a bill had been passed. The notice is issued pursuant to a rule of the Senate. It is designed merely to advise the President in an orderly way of the official action taken by the Senate. The title to the office depends upon

the appointment by the President and · the confirmation of the Senate, and notice of the action of the Senate neither . adds to nor takes from the title of the appointee.

So, Mr. President, I repeat that the importance of the notice has been unduly magnified throughout this argument. It is the nomination of ",he President and the confirmation of the Senate that (;onstitutes the appointment and vests title in the appointee. When the commission is issued, which is issued under another provision of the Constitution, when the appointee takes the oath which is required by still another provision of the Constitution, his title to the office is completely acquired. It is completely deraigned from the nomination and the confirmation and not otherwise. The notice has nothing whatever to do with it. It is superfluous so far as title is concerned. It issues merely pursuant to a rule of the Senate designed merely to convey to the President, in a convenient manner, information that the Senate had voted either to confirm or reject the nomination. It has no relation whatever to the matter of reconsideration of the ·vote.

Mr. SHORTRIDGE. Mr. President, if the Senator will permit one other interruption, I will promise not to offend again.

The VICE PRESIDENT. Does the Senator from New Mexico yield to the Senator from California?

Mr. BRATTON. I yield. Mr. SHORTRIDGE. Assuming the statements just made,

what, then, are the facts? The President" nominates" certain gentlemen. The Sen

ate advises and consents that they may be " appointed." The President receives legal notice of the action of the Senate, and thereupon the President makes the appointment. Thereafter the gentlemen appointed appear, under the statutes referred to. Commissions are issued to them. They hold up their hands and swear to support the Constitution, and are thereupon inducted into the offices which they now occupy. Therefore, is it not utterly futile for us to spend our time in discussing whether or no the notice was properly, or prematurely, served upon the President? These gentlemen ·were nominated, the Senate advised and consented to their appointment, the President appointed them, they were duly inducted into office, they are occupying the offices. The case is closed. Let us turn to other matters.

Mr. BRATTON. Mr. President, I have indulged in very little argument respecting the notice to the President; but others seem to have laid great stress upon it, saying that because the notice went forward the Senate waived its right to reconsider. At least, it has been argued here over and over again that the notice constituted a waiver of the Senate's power to consider this motion.

But, Mr. President, the only way in which the Senate could waive its authority under paragraph 3 of Rule XXXVIII would be by an affirmative vote or by unanimous consent of the Senate to that effect. At most, the argument here is an implied waiver. That is all it could constitute-a waiver by implication-because there is no rule of the Senate which provides expressly that the power shall be waived in these circumstances. So, conceding the utmost effectiveness possible to the argument that the issuance of tl:l notice to the President constituted a waiver of the power of the Senate, it rests upon an implication to that effect; and certainly the Senate will not indulge any such presumption_ as that. Implications are disfavored. They are not indulge"d unless inescapable.

Repeating what I said a moment ago, the notice which went forward in this case had nothing to do with the title of these three appointees to their offices. It added nothing to such title. It took nothing from such title. Their title to the office must depend upon the appointment of the President and confirmation of the Senate.

If the Senate has not confirmed in a final sense, but still has the matter within its control, then these nominees do · not have title to the office; they are wrongfully in office, and are improperly discharging the functions of office.

Mr. President, it is my contention that under paragraph 2 of section 2 of Article II of the Constitution, the title of

1931 - CONGRESSIONAL RECORD-SENATE 1593 an appointee to a given office depends upon the nomination of the President; that is to say, the communication sent to the Senate in which the · President declares, " I nominate so-and-so to such-and-such an office for a term of so many years," followed by the vote of the Senate advising and consenting to . that nomination. The issuance of a commission afterwards is no part of the title to the office. It conveys no authority to hold the office. It is mere evidance of the fact that the Executive and the Senate together have initiated and consummated the appointment. It is an evidentiary document, and not one of title. So that the commission which issued in this case after the nomination reached the Senate, and within two days after the Senate cast its affirmative vote upon confirmation, did not constitute any part of the title to the office nor any power to hold the office. It is merely an evidentiary document. .

Following the confirmation, the nominee receives a commission, and takes the oath of office. The commission issues pursuant to the provision of section 3 of Article II of the Constitution, which provides, among other things, that the President-shall commission all the officers of the United States.

The commission issues pursuant to that command of the Constitution, not because the Senate has confirmed, not because the President has nominated. It issues as an evidentiary fact of the previous appointment, in obedience to the command of section 3 of Article II of the COnstitution, which requires in explicit language that the President shall commission all officers of the United States.

Then, Mr. President, after the President has nominated, after the Senate has confirmed, and after the President has issued the commission as required by the constitutional language I have just read, the appointee is required to take an oath of office. That requirement is exacted by Article VI of the Constitution, which provides to this effect:

The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial office;rs, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

The notice to the President in this case had nothing to do with the appointment nor the right of these nominees to hold office. As I have said too many times already, it is merely a step in the procedure of the Senate, designed to convey in an orderly fashion information to the President that on a given day the Senate advised and consented to a certain nomination; but it has no effect upon nor relation to the power of the Senate to reconsider if a motion to that effect is timely made.

So all this talk about the notice to the President, and the right of the President upon receiving such notice to assume so-and-so, is of no effect. The notice merely conveyed the information that on a certain day the Senate advised and consented to that nomination; but that notice was impressed with constructive knowledge that under the rule of the Senate, made pursuant to constitutional authority, the Senate ·had power to reconsider that vote within two days, and if reversed the appointee would have no office.

It has been argued here that once a man takes the oath there is no way to get him out of office except by impeachment. Of course, if he took the oath prematurely-that is to say, before the time had expired within which the Senate might consider a motion to reconsider-the situation would be analogous to one where a man elected to an office and receiving a commission takes the oath. He does so always subject to the power of his adversary at the polls to institute a contest within the proper time and in the proper manner; and if such adversary prevails the commission which was issued and the oath which was taken fall, and he no longer holds the office. So the fact that a commission issued and an oath was taken does not give the appointee an irrevocable right to hold the office during the term unless removed by impeachment. On the contrary, the act of taking the oath is contingent upon the power of the Senate to reconsider the

vote and nullify the confirmation if the motion is filed within the time and receives the requisite support in this body.

The appointees in the cases now under · consideration were charged with that notice, because everyone must take constructive notice of the rules of the Senate if they are promulgated by proper authority, and no one contends otherwise here. The only argument made is that because a paper called a notice went forward to the President, the Senate is cut off and foreclosed from exercising the power reserved to it under paragraphs 3 and 4 of Rule xxxvm of the Senate.

Mr. WALSH of Massachusetts. Mr. President, will the Senator yield?

The PRESIDING OFFICER (Mr. FEss in the chair)'. Does the Senator from New Mexico yield to the Senator _ from Massachusetts?

Mr. BRATTON. I yield to the Senator from Massachusetts.

·Mr. WALSH of Massachusetts. Is it the Senator's opinion that no oath of office should have been administered until after the time permitted by the rule for reconsideration had expired?

Mr. BRA'ITON. That is my opinion. Mr. WALSH of :Massachusetts. Is it not a fact that the

proper policy would have been for the officer of the Senate who transmits the action of the Senate to the President to

·have waited until the time had expired, and will not the inevitable result be, ln view of this experience, that in the future the Secretary of the Senate will refrain from notify:. ing the President until the time has expired?

Mr. BRATTON. No doubt that .. result will follow; but I make no complaint against the Secretary of the Senate.

Mr. wALSH of Massachusetts. Undoubtedly it had been the universal practice to do as he did, but it seems to me that if favorable action is taken on the motion, particularly in a controversy of this kiiid, the inevitable result will be that hereafter notice will be withheld until the time fixed in the rule shall have expired.

Mr. BRATTON. No doubt that will be the practice in the future.

Mr. WALSH of Massachusetts. The SenatM is familiar with court regulations relating to decrees, which sometimes make effective in the distant future a given judgment or decree, and that in our courts the practice is not to issue such decrees until the time has expired within which, under the rules of the court, litigants may have rights.

Mr. BRATTON. I think that is universally true of the courts. It is my belief that our previous practice, coupled with the fact that in this case tlle Presiding Officer, either the Vice President or the President pro tempore, said that the President would be notified, gave the Secretary of the Senate ample justification for transmitting the notice to the President. •

Mr. President, the Senator from California a few moments ago inquired of me whether the President had the right to appoint immediately upon receiving notice that the Senate had confirmed these nominations. That raises the question of the correct interpretation to be given to paragraph 2 ·of section 2 of Aiticle II of the Constitution. That paragraph provides that the President-

Shall have power, by and with the advice and consent of the Senate, to make treat ies, provided two-thirds of the Senators present concur; and he shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law.

One view of that provision is that the President shall send to the Senate a document called a nomination, in which he recites that he nominates a named person for a named office, that the Senate shall act upon that nomination, and if it gives its advice and consent, the President Bhall afterwards appoint the officer.

The other view is that the appointment, so far as the President is concerned, is made by the document called a nom.i_nation; in other words, he sends a nomination to the

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1594 _CONGRESSIONAL RECORD-SENATE JANUARY 8 Senate, it is confirmed, and all he does afterwards is to Mr. BRA'ITON. The Constitution expressly provides, as -issue a commission, which is an evidentiary document that the Senator from Iowa well knows, that the President shall the person has been appointed and confirmed. commission all officers of the United States.

In either event, the Senate has not lost its power to con- Mr. BROOKHART. Certainly. sider this motion, and, if it is adopted, to set aside the vote Mr. BRATTON. Accordingly the President must issue the on confirmation heretofore cast, because if the appointment commission; but it is merely a ministerial act following an is made by the nomination, if that is all the President does appointment and a confirmation, and the commission is in the way of a formal document of appointment, and all only an evidentiary document. It merely affords evidence that he afterwards does is to issue a commission, then con- that the nominee was appointed and confirlned. cededly the Senate would have the power to consider the Mr. BROOKHART. I think that view is correct. I can motion within the 2-day period. see nothing in it but a ministerial act.

Mr. BROOKHART. Mr. President, will the Senator yield? Mr. BRATTON. .That is all it is. Mr. BRATTON. Please let me finish my analysis of this Mr. BROOKHART. I can see none of the gist of an ap-

provision of the Constitution. - pointment in it itself. Mr. BROOKHART. Certainly; Mr. BRATTON. None whatever in the commission. There Mr. BRATTON. If, on the other hand, the correct view is is none whatever in the notice which went from the Senate

that under such provision the President shall nominate, the to the President that the Senate had advised and consented Senate shall advise and consent thereto, and afterwards the to the nomination. Title to the office, as I have said re- ·· .President shall issue some sort of an order appointing the peatedly, rests upon the appointment of the President and nominee, then I assert that the appointment in this case the confirmation of the Senate. The commission, the oath, issued prematurely and is void, because the Senate had the and the notice of the Senate addressed to the President adpower to reconsider the vote of confirmation if a motion vising that the Senate had consented to the nomination were made within the 2-day period. The President had con- neither give title nor take away title to the office. structive notice of that, and the appointee had constructive When the distinguished Senator from Iowa interrupted notice of it. So, in either event the Senate is not shorn of me I was engaged in saying that in my opinion paragraph 2 its power to consider the motion, if made within the 2 -day of section 2 of Article n of the Constitution is susceptible period. · of two interpretations, but under either construction the

I care not which view one takes of the constitutional pro- Senate has ample power to consider this motion, and, if it is vision, it is immaterial which interpretation is accorded 'it, adopted, to reverse the vote of confirmation. in either event the power to reconsider remains vested in the Mr. President, I have said all that I had in mind respectSenate under its rule Pt:,omulgated by authority of the Con- ing the legal aspects o( this matter. As to the facts it is stitution itself. If the President issued some sort of a mani- conceded that three of these commissioners, Messrs. Smith, festo, some sort of an executive order, some sort of a written Garsaud, and Draper, almost immediately after they redocument, called an appointment, within the 2-day period, ceived their commissions and took their oaths, provided it issued prematurely, and was conditioned upon the power effectually that all of the employees of the former commisof the Senate to reconsider, and must fall if the Senate does sion should be continued in the service of the new commisreconsider within the time prescribed. Likewise, if the com- sion except Messrs. Bonner, King, and Russell. They were mission issued within the two days, it issued subject to and singled out and dealt with differently from the others. The conditioned upon the power of the Senate to reconsider others were continued in the service; these three were diswithin the time, and if an oath was taken, that was done in missed from it. The only satisfactory reason which has like manne , and is subject to the same condition and limi- been given for that action was that there had been disputes tation. and friction between Mr. Bonner on the one hand and

Mr. President, as I have already said, a rule made by a Messrs. King and Russell on the other. I have no doubt of legislative body pursuant to legal authority constitutes con- that, and I think that dispute revolves around their respecstructive notice to everybody, including those in the coordi- tive attitudes touching the question of public-utility comnate branches of the Government, just as effectively as panies throughout the country. Messrs. Russell and King though the Constitution so provided. Would anyone argue, were dismissed from the service and thus penalized because would anyone be heard to assert on the floor of the Senate, throughout their years of service they had responded faiththat if the Constitution provided that the Senate might fully to the public welfare of the country. It may well be reconsider a vote on confirmation, if a motion thereto were argued that whether Messrs. Russell and King are continued made within the 2-day period, sending a paper called a in the public service, whether they enjoy remuneration, is an notice to the President robbed the constitutional provision insignificant and relatively unimportant phase of the subof its efficacy and deprived the Senate of its pawer to recon- ject matter. Although we might regret to see them penalsider? Certainly not. Therefore, the rule of the Senate ized in that way, perhaps the Senate would not be justified having the same binding force, so far as constructive notice in turning aside from other duties and dealing with this is concerned, the notice from the Senate to the President matter merely to assure those two men continuation in that on Saturday, December 20, 1930, the Senate advised public service. and consented to the nominations.in question, was impressed But the important question, the dominating question, the with constructive knowledge that under the rule the Senate controlling question which presents itself to the Senate is might reconsider. If an order was made afterwards called the attitude of these three men nominated for membership an Executive order appointing these nominees, it was im- on the Federal Power Commission respecting that question pressed with the condition that the Senate might reconsider. concerning the public throughout the country as reflected If a., commission issued, it was impressed with the condition in their action by . dismissing the two men from service that the Senate-might reconsider, and if an oath was taken, because of their attitude upon such question. That is the it was taken conditioned that the Senate might reconsider, important issue which confronts the Senate and which the and if it does reconsider, the entire subsequent proceedings Senate must meet and resolve. It must say whether it fall and become nugatory. stamps its approval upon these three appointees in view of

Now I yield to the Senator from Iowa. 'their attitude thus reflected upon a nation-wide question, Mr. BROOKHART. I ask the Senator if anything was perhaps one of the most important questions in the com-

done in this case except to issue a commission? monwealth. Indeed, Mr. President, it seems to me the Mr. BRATTON. I do not know. question is so important that the Senate can not afford to Mr. BltOOKHART. The Senator from Massachusetts minimize or neglect it.

said that was all that was done. The issuing of the com- We should reconsider our vote, and, if necessary, inquire mission is a declaratory proposition, and the law might just further into the attitude of these three nominees touching as well provide that the Secretary of the Senate issue it as the important question to which I have referred. They will that the President or anybody else issue it. not be heard to say that the three· men went out of office in

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1931 CONGRESSIONAL RECORD-SENATE 1595 obedience to the act of June 23, 1930, because such act expressly provides to the contrary. They Will not be permitted to evade the question. They must be held responsible for the dismissal of those two faithful employees throughout several years of service.

Mr. President, although the question may not be free from doubt, although it may be enshrouded with some doubt, I have reached the conclusion that the Senate has not waived its right to entertain the motion. It is my belief that the Senate has authority now to consider the motion. To those who entertain a contrary view, to those who may entertain grave doubt on the question, I submit that in view of the importance of the question involved, they should resolve the doubt in favor of reconsidering the vote and inquiring further into the subject matter.

Mr. WHEELER obtained the floor. Mr. GEORGE. Mr. President--The PRESIDING OFFICER. Does the Senator from

Montana yield to the Senator from Georgia? Mr. WHEELER. I yield. Mr. GEORGE. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk called the roll, and the following

Senators answered to their names:

Ashurst Fess King Barkley Fletcher La Follette Bingham Frazier McGill Black George McKellar Blaine Gillett McMaster Blease Glass McNary Borah Goff Metcalt Bratton Goldsborough Morrison Brock Gould Morrow Brookhart Hale Norbeck Broussard Harris Norris Bulkley Harrison Nye Capper Hastings Oddie Caraway Hayden Partridge Carey Hebert Phipps Connally Hefiln Pine Copeland Howell Pittman Couzens Johnson Ransdell Cutting Jones Robinson, Ark. Dale Kean Robinson, Ind. Davis Kendrick Sheppard Dill Keyes Shlp~tead

Shortridge Smith Smoot Steck Steiwer Stephens Swanson Thomas, Idaho Thomas, Okla. Townsend Trammell Tydings Vandenberg Walcott Walsh, Mass. Walsh, Mont. Waterman Watson . Wheeler Willl(\mson

The PRESIDING OFFICER. Eighty-six Senators having answered to their names, a quorum is present. The junior Senator from Montana is entitled to the floor.

Mr. WHEELER. Mr. · President, I shall not attempt to discuss the legal phases of the situation which exists and which are involved in the question before the Senate at this time, by reason of the fact that they have already been covered by distinguished lawyers in this body. I invite attention to the fact, however, that there are some phases of this matter which have not been presented to the Senate and which I feel are much more important than the technical legal questions.

I am not interested in Mr. Russell as an individual nor am I interested in Mr. King as an individual. Mr. King was unknown to me until he came before the Interstate Commerce Committee of the Senate. Mr. Russell, it is true, comes from my own State, but he invariably has been on the other side of every issue in the State in which I was interested. He was appointed to the Interstate Commerce Commission upon the recommendations of four Republican members of our supreme court, including our present chief justice, Mr. Lew L. Callaway; former Associate Justice William L. Halloway; another former associate justice, Mr. A. P. Stark; present associate justice, Mr. Albert J. Galen; a member of the district court, Theodore Lentz; by the present Republican United States district attorney, Wellington D. Rankin; and the present attorney general of the State, Mr. L. A. Foot. He was likewise recommended by some of the most prominent Republican lawyers of the State, among them being Mr. E. C. Mulroney. He was also recommended by the Republican Congressman from our State, Mr. ScoTT

era! solicitor of the Soo Line, by prominent lawyers in the city of Washington, by Mr. Sweet, the assistant general solicitor of the Interstate Commerce Commission, and by the former chairman of the Interstate Commerce Commission, Mr. Lewis. •I am going to ask that all these letters be inserted in the CONGRESSIONAL RECORD as 'a part of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

The letters are as follows:

Hon. ERNEST I. LEwis, Washington, D. C.

APRIL 25, 1925.

MY DEAR MR. LEWis: Charles A. Russell, Esq., of Missoula, Mont., tells me that he has made application for appointment to a position with the Interstate Commerce Commission as senior attorney for the trial of cases involving physical valuation of public utilities, principally railroads, telegraph, and telephone, and express companies.

I have known Mr. Russell for seven or eight years. My information is that when- he was a member of the bar of Wisconsin he was much interested in public-utility matters and others of like character. Since coming to Montana he has been engaged in some important litigation along cognate lines. Mr. Russell is an able and energetic lawyer. While I have not had the opportunity of observing him in the trial of cases in the nisi prius courts, he bears an excellent reputation in that respect. He presents cases to the supreme court with clearness and ability and has been very successful in his appellate practice.

I have every reason to believe that if he is given the appointment, he will distinguish himself in his zealous endeavors for the public interest as a trial lawyer.

Very truly yours,

Hon. ERNEsT I. LEWIS,

LEw L. CALLAWAY, Chief Justice.

APRIL 21, 1925.

Washington, D. C. DEAR Sm: Mr. Charles A. Russell, of Missoula, Mont., is an

applicant for appointment as senior counsel for the Interstate Commerce Commission and I am writing you in his behalf.

Mr. Russell has been engaged actively in the practice of the law since 1902, and in this State since 1916.

He has appeared frequently as counsel in causes pending before the Supreme Court of Montana and uniformly has cllsplayed a high degree of ability. He is well versed in the principles of the law, is thoroughly familiar with the practice and has a keen sense of professional ethics.

His experience has covered a wide range of subjects, and in publlc-utllity matters particularly he is especially proficient.

I earnestly recommend his application to your favorable con~ sideration.

Yours truly,

Hon. ERNEST I. LEvns,

WILLIAM L. HALLOWAY, Associate Justice.

HELENA, MoNT., April 20, 1925.

c ·ommissioner, Interstate Commerce Commission, Washington, D. C.

Sm: I am advised that Mr. Charles . A. Russel, of Missoula, in this State, has made application for appointment as one of the attorneys for the l.Bterstate Commerce Commission.

Prior to coming to the supreme court, I was for a number of years judge of one of the districts in eastern Montana, and Mr. Russell appeared before me in a number of matters. I was very favorably impressed with his ability as an advocate in a trial court. He was ready, forceful, and fearless.

Since coming to the supreme court a little more than two years ago, I have had opportunity to see Mr. Russell more frequently than I had prior to that time.

He has briefed and argued a great many cases befor~this court during the time I have been here. His briefs are admirable in the presentation of the propositions involved, and his arguments in open court are clear, concise, and vigorous.

In going over the transcripts of the testimony taken in cases which have been tried by him, one is impressed with the fact that at the trial he is alert, resourceful, and unfaltering in the protection of the interests of his clients.

Personally, I consider him one of the very best trial lawyers in Montana, and take pleasure in commending him in every way as an able la-wyer and a high-grade gentleman.

Respectfully, A. P. STARK, Associate Justice.

APRIL 21, 1925. LEAVITT. Hon. ERNEST I. LEwiS,

In addition to that, Mr. Russell, after serving with that DEAR sm: "i"!.~~:~~· tc;;_at Charles A. Russell, of Missoula, body, was recommended for his present position by the gen- Mont .. bas made application for appointment to the position of

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1596 CONGRESSIONAL RECORD-SENATE JANUARY 8 senior attorney for the Interstate Commerce Commission throuO'h the Civil Service Department. . o

- Mr. Russell has for many years practiced law at Missoula in this State and is a lawyer of more than usual ability and integrity. He has appeared many times before the supreme court during the time that I have been one of th• associate justices thereof, and I am most favorably impressed with his character and ability. I think the Interstate Commerce Commission will be exceedingly fortunate if they are able to secure his appointment for this position.

Very respectfully, A. J. GALE!'f, Associate Justice.

APRIL 24, 1925. Han. ERNEST I. LEWIS,

Commissioner of Interstate Commerce Commission, Washington, D. C.

DEAR Srn: I am informed that Mr. C. A. Russell, an attorney of this place, is an applicant for a position as attorney for the Interstate Commerce Commission. For many years Mr. Russell has had an extensive practice before me and in the State and Federal courts of Montana. I consider him one of the most capable and proficient trial lawyers in this State. It gives me pleasure to recommend him to you, and I -feel that you would make no mistake in employing him.

Yours very truly, THEODORE LENTZ, District Judge.

APRIL 20, 1925. ERNEST I. LEWIS, Esq.,

Care of Interstate Commerce Commission, Washington, D. C.

MY DEAR MR. LEwis: I am writing to you concerning Charles A. Russell, attorney at law, of Missoula, Mont., who is an applicant for a position as one of the attorneys connected with certain work for the Interstate · Commerce Commission.

I have known Mr. Russell since he began practicing law in Montana about 10 years ago. He is one of the ablest trial lawyers in Montana. I came in close contact with him while I was attorney general of the State, and I have heard him present matters to the supreme court while I was a member of it.

He is so alert and resourceful that he may well be characterized a "born trial lawyer." But he is not only a trial lawyer, for his thoroughness and his knowledge of the law make him equally convincing before an appellate court.

It is a pleasure to be able to say that the bar of Montana, generally, recognize him as one of the ablest lawyers of the State.

Very sincerely yours, WELLINGTON D. RANKIN,

Now United States Atto·rney for Montana.

APRIL 21, 1925. Bon. ERNEST I. LEWIS,

Commissioner Interstate Commerce Commission · Washingt~. D. C.

MY DEAR MR. LEwis: I am informed that Mr. Charles A. Russell, of Missoula, Mont., has filed a formal application with the Civil Service Commission for appointment as senior trial attorney with the Interstate Commerce Commission.

I have known Mr: Russell for about four years last past and have had occasion to observe his ability as a trial lawyer. He has argued many cases in the supreme court in which this department has appeared on the opposite side, and I know from experience that his record from the lower court is always in excellent shape.

He has lived in Missoula for the past nine years and is recognized as one of the leading lawyers of that city. ,

I am glad to recommend him for the position he seeks. Very truly yours,

L. A. FooT, Attorney General .

APRIL 30, 1925. ERNEST I. LEWIS, Esq.,

Interstate Commerce Commiss~n. Washington, D. C. DEAR Srn: I have just learned that Mr. Charles A. Russell, of

this city, has made application for a position as one of the attor-neys for your commission. .

I have known Mr. Russell ever since his residence in Missoula, something over nine years. Puring that period he has been actively engaged in the practice of law here. He is one of the most forceful and e1Iective trial lawyers I have ever known, and bas perhaps tried more cases here than any other member of the bar. Not only has he been very active here but his excellent reputation has caused him to be called to many other points in the State to engage in the trial of very important litigation.

Before coming to ·this State, Mr. Russell had extensive practice in matters along the line of your work, and while in the practice here has been called into the trial of many important matters having to do with public-service litigation. ·

He is a gentleman of the very highest type and one with whom it is a pleasure to be associated in any manner. I feel sure that the Interstate Commerce Commission would be very fortunate to secure the services of one who is so eminently qualified.

Very truly yours, E. C. MULRONEY.

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(Same letter to Secretary of War and Secretary of Agriculture ~~)to 1'.1r. Russell, with the file received with his letter of March

MARCH 27, 1929. Hon. RAY LYMAN WILBUR,

The Secretary of the Interior. . ~Y DEAR MR. SECRETARY: In the event Mr. 0. C. Merrill, execu

tive secretary of the Federal Power Commission, recommends that Mr. Charles A. Russell be appointed as chief counsel to the commission I shall appreciate your careful consideration of his qualifications.

Mr. Russell is now the principal attorney for the Interstate Commerce Commission, and my understandina is that his wor:r has been satisfactory in every way. r.

~efore entering the service of the Interstate Commerce Commission in 1925 Mr. Russell .practiced law in Montana for many years. He established an enviable record and reputation and has unqualified indorsements from the personnel of the 'Montana Supreme Court, the Montana attorney general, State district judges, and members of the Montana bar.

I feel sure Mr. Russell's service would be satisfactory to the me~?ers of the ~deral Power Commission, and in the event Mr. Merrill submits his name hope you will see fit to confirm the selection.

Sincerely yours,

Hbn. WALTER H. NEwToN, Washington, D. C.

SCOTT LEAVITT.

MARCH 20, 1929.

DEAR MR. NEwToN: I understand that Charles A. Russell is an applicant for the position of general counsel for the Federal Power Commission.

I have been acquainted with Mr. Russell for many years, and know that he has had an extensive and varied experience as a lawyer. He represented the bureau of valuation at the hearings involving the valuation of the Soo Line, Wisconsin Central and ~ubsidiary companies, and I represented the companies. The hearmgs extended over a considerable period of time and all sorts of legal questions arose in connection with the work. I know that Mr. Russell is a very competent lawyer and that he is independent and fearless. I am confident that he would fill the position as counsel for th~ Pow~r Commission ably and impartially. I take great pleasure m addmg my recommendation to that of others for his appointment.

Very sincerely yours, JOHN L. ERDALL,

General Solicitor Soo Line.

WASHINGTON, D. C., June 6, 1929. ExECUTIVE SECRETARY FEDERAL POWER COMMISSION,

Washington, D. C. DEAR SIR: I have recently learned that Mr. Charles A. Russell

is under consideration by your honorabie board for the position of general counsel. I have known Mr. Russell ever since he came to Washington, and having had intimate association with him across the table in valuation cases before the Interstate Commerce Commission, I am writing this letter voluntarily and without any solicitation on his part or on the part of any other person to say to you tha_t 1\ir. Russell is a most able and thorough technical lawyer, pecull_a~ly fitted, in my opinion, to satisfactorily hold a position reqmnng highly techmcal legal qualifications such as I believe is required of the general counsel of the Federal Power Commission.

Very truly yours, W. _8. BRONSON.

DEAR RussELL: I sincerely hope this appointment will come your way.-W. S. B.

WASHINGTON, D. C., April 20, 1929. Hon. JAMES W. Goon,

Secretary of War, Washington. DEAR Srn: Answering your request that I write you in respect of

the matter which I set before you this morning at your office with Messrs. Millard F. West and Jules Gilmer Korner, jr.

I understand that the Federal Power Commission is about to appoint a counsel and that Charles A. Russell, Esq., now an attorney of the Bureau of Valuation, has been recommended for that post. I have known Mr. Russell for some years, and although he has been my adversary in many of the valuation cases 'Which I have had before the commission, I have learned to have a high regard for his ability and, as stated to you this morning, I feel that he has been in that work long enough and should get into another branch of Government work if he does not wish to go into private practice. I have never had any cases before the Federal Power Commission, nor do I expect to have any, and my interest in this matter is out of my regard for Mr. Russell and because I believe your commission would be well served if he were its general counsel.

· Yours faithfully, CHAS. HANSEL •

1931 CONGRESSIONAL RECORD-SENATE 1597 . MAY 14, 1929.

Mr. 0. C. MERRILL, Executive Secretary Federal Power Commission,

-Interior Building, Washington, D. C. DEAR Sm: Relative to your inquiry concerning the qualificl:!otions

of Mr. Charles A. Russell, who is an applicant for one of the responsible legal positions with the Federal Power Commission, I may say that my personal acquaintance with him extends over a period of nearly four years. Mr. Russell was emp~yed by the Interstate Commerce Commission as a valuation attorney in August, 1925, and entered the service at a salary of $3,800 per annum. He is now a principal attorney, receiving a salary of $6,000 per annum.

As an attorney in the valuation work we have found that his experience in the general practice of law, as well as his special experience in public-utilities matters. have qualified him to handle creditably some of the most difficult cases that have been presented to the commission in the past few years. In all cases before the commission the railroads are represented by experienced and capable counsel. We have been particularly fortunate in having a man of Mr. Russell's experience and ability to represent the Bureau of Valuation in such cases.

Mr. Russell's experience has qualified him not only as a trial lawyer but also as an investigator of unusual ability. We have found him most thorough in the preparation of cases both before and during hearings. At one time, some years ago, he was statistician for the city or one of the commercial organizations of SuperiOr, Wis. In that work he developed an interest in and aptitude for the problems met in accounting matters, which have added to his value as an attorney for the commission in valuation work.

While Mr. Russell has not, during his service with the commission. held an executive position, he has nevertheless directed the work of one or more assistant attorneys in several cases and has had a general supervision over the preparation of evidence by technical experts of the commission for presentation in hiB cases. I have no doubt of his ability either to view his problems in a broad way so as to center attention upon the controlling considerations, or, where necessary, to direct and conduct inquiries into details of questions which require detailed examination.

Mr. Russell is a lawyer of broad experience and great ability. He is devoted to the work of public service, and it seems to me that he will be a valuable man in the position for which you are considering him.

Very truly yours,

Mr. 0. C. MERRILL,

OLIVER E. SwEET, Assistant General Solicitor.

MAY 16, 1929.

Executive secretary Federal Power Commission, Interior Building, Washington, D. C.

MY DEAR MR. MERRILL: I understand from you that the Federal Power Commission has under consideration the matter of engaging some one qualified to conduct hearings and prepare records in cases involving valuation, determinations of investment, and allied matters which come before your COinmission. I also understand that the name of Mr. Charles A Russell, member of our Bureau of Valuation legal staff, 1s under consideration. Responsive to your questions as to his mental and technical equipment and his abilities to fill such a position, I would say that he appoars to me to be eminently well qualified. Mr. Russell has been with us for three or four years. He has been appearing as an attorney for the bureau in cases protested by the carriers. Out of a field of some 30 attorneys we engaged for closing up the primary valuation of railroads, Mr. Russell has made a distinctive place for himself. This is attested by the fact that he has been handling some of our largest and most important cases. He has the reputation of preparing for hearing of cases that are assigned to him with great thoroughness. He seems to have extraordinary powers of penetration and in the assembling of facts that ordinarily might not be brought into the range of knowledge of a case. His training as a lawyer and the intimate interest that he evinces results in his making a forceful presentation on argument.

As to his training: It has been particularly fortunate for our valuation work. He has had a great deal of original contact with the theory and work of utility and common-carrier valuations ~n the Northwest--Montana, Minnesota, and Wisconsin-where there has been a considerable militancy in the field of regulation for years. He has an understanding grasp of engineering and accountancy which are vital, both in the work of valuation and the determination of investment.

As the representative of the Interstate Commerce Commission, to whom has been delegated the contact with the Bureau of Valuation, which involves a considerable degree of administrative direction, permit me personally to say that I would deplore losing Mr. Russell. That may be the highest commendation that I may give him. On the other hand, the opening here seems to offer advancement and increase in salary which under our organization is not at this time possible here. If that is the fact, I fe.~l that I should not stand in his· way by objecting to transfer if your commission should desire to employ him. But if it does not carry such increase and advantage, I would object to transfer.

Very truly yours, ~· I. LEWIS, Chairman.

BRENTWOOD, N. Y., June 171 1929. Mr. CHARLES A. RUSSELL,

Interstate Commerce Commission, Washington, D. C.

DEAR.MR. RussELL: Mr. Sweet h~ sent me your letter to him of June 8. We expected your appom~ment as general solicitor for the Federal Power Commission at a salary of $9,000 yearly would be made and I congratulate you. You are eminently fitted for that place and the salary is much more adequate for a man of your abilities than any that could be expected from the Interstate Commerce Commission in the near future. While I regret to lose your services in the commission, I am especially pleased that the appointment has come to you. You are eminently fitted for the place and will render to that cominission most satisfactory service. I trust that you may find the work pleasant and the association in every way desirable. '

I thank you for your kind word to me, and I am pleased to say that I am making decided progress to what the doctors say and I hope will be a permanent recovery-not permanent in the sense that I expect to live forever or for many years but I should like while I live to perform good work. I am a firm believer in occupation that one loves to make living enjoyable.

With kindest personal regards to you and wishing you success, I am,

Sincerely and cordially yours, CHARLES W. NEEDHAM.

Mr. WHEELER. Mr. President, ' the provisions of the Federal water power act require the adoption of the classification of accounts as used by the Interstate Commerce Commission, so far as applicable. The first thing abol!t which Mr. King, Mr. Russell, and Mr. Bonner clashed was over the classification of accounts. Bonner seemed insistent upon disregarding the classification. He wanted to inaugurate a system of accounts that was in line with what the power companies of the United States desired.

My information is that Bonner told Mr. King and Mr. Russell that he wanted to find some way to get around the provisions of the law. When Russell and King refused to obey Mr. Bonner with reference to evading the provisions of the law, in other words to nullify the law, the clash about which we have heard so much o0curred. The requirement as to clas.sification of accounts has never been complied with by the power companies since the Power Commission has been created. Both Mr. King and Mr. Merrill were unable to enforce those provisions for lack of legal assistance. When Mr. Russell took office he was prepared to enforce those provisions, but Mr. Bonner, who was the secretary, refused to permit either King or Russell to force the power companies to comply with them.

As I said a moment ago, that was the first occasion when the so-called disharmony occurred between the members of the staff of the Power Commission. The situation which arose in that commission was brought to the attention of the Interstate Commerce Committee, of which I am a member. During the examination of Mr. Bonner he made the statement that he felt the power companies were being persecuted. In substance he said he thought they were being persecuted by Congress, and he thought they were being persecuted by everybody else in the country. On the other hand, Mr. Russell and Mr. King felt that the power companies were filing false claims, in many instances, before the Power Commission, which claims should be investigated, and when investigated, if found that they were false, they should be eli,minated from the accounts.

Last summer Congress passed the present act creating an independent commission of five to administer the Federal water power act which had been enacted in 1920. The original act automatically made the. Secretary of War, the Secretary of Agriculture, and the Secretary of the Interior the commission. The business, however, was almost entirely done by the executive secretary. When Congress reassembled in December last the President sent to the Senate for confirmation the names of · members of the new commission, as follows: Mr. George Otis Smith, , Claude L. Draper, Marcel 6arsaud, Ralph Williamson, and Frank McNinch. Hearings were held by the committee. Those nominees were confirmed by the Senate, and immediately, on Tuesday morning, December 23, when the chief accountant, William V. King, and Charles R. Russell, the solicitor of the commission, reached their offices, they found on their desks

1598-· CONGRESSIONAL RECORD-SENATE JANUARY 8 curt notices, signed by the chairman, George Otis Smith, discharging them from their positions, to take effect the preceding day.

The executive secretary, Mr. F. E. ~onner, had resigned, but Chairman Smith asserted that he would have been dismissed the same as the others. That official act of ... he new commission aroused great indignation not only in t ! ls body but throughout the country, as I shall show from th.! newspaper clippings and newspaper editorials which I intend to introduce in the RECORD during the course of this argument.

It should be borne in mind by the Senate of the United States that the entire controversy in the Power Commission has been, on the one hand, between Russell and King trying to comply with the law and endeavoring to protect the public interests, and, on the other hand, Mr. Bonner constantly trying to break down the law and the rules of the commission in favor of the great power interests of the country. The real issue, then, ~s not as to whether or not Mr. King or Mr. Russell should be discharged, but where does one stand upon the power issue? Are we going to permit two public officials who endeavored to do their duty and who have been harg.ssed and embarrassed by the power interests ever since they have been serving the commission to be sacrificed upon the altar of greed and selfishness merely because of the fact that they would not bend the knee to these interests?

Some one has said that Mr. Russell was a trouble maker. He could have gotten along in the Power Commission if he had been willing to do the bidding of the great power interests. Mr. King also could have gotten along in his position if he had been willing to do likewise. Both of these men could have gotten along in the Power Commission provided they had been willing to be subservient to the great power interests. Let Senators in this body make no mistake. When they vote to sustain Smith, they vote to sustain the power interests which are seeking, and have been seeking for several years, to get these men dismissed frqm their po3itions because of the fact that they have been trying to can-y Ollt not what they wanted to do but what the Congress of the United States directed that they should do. That is the issue here. It may be stated on the floor of the Senate that that is not an important issue, but I say it is one of the most important issues facing this country to-day.

Not only that, Mr. President, but there is another issue involved, and that is the question as to whether or not an employee who carries out the law as ·it is enacted by the Congress of the United States shall be discharged when he does what he thinks Congress tells him he shall do. Some of the newspapers of the country have said-and I think it was announced over the radio-that President Hoover directed that the action which was taken by the three members of the new commission should be taken. I can not believe that Mr. Hoover directed that such a thing should be done; I can not believe that the President of the United States, notwithstanding the fact that he was, as everybody knows, supported by the power interests in the last campaign, would want to say that these two employees must be sacrificed.

Some one has told me that, although the Senate of the United States should request that these names be sent back for reconsideration, the President would not send them back. I do not believe that to be so. I ·have more faith in the President of the United,States than to think that he would refuse to send these_ names back to the Senate under the circumstances that exist. I have more faith in the President than to think that he would be a party to canying out the nefa1ious scheme of the power interests of tryinci to punish these men because they did what the Congress of the United St:1tes said they should do.

Mr. GOFF. Mr. President--The PRESIDING OFFICER. Does the Senator from

Montana yield to the Senator from West Virginia? Mr. WHEELER. I yield. Mr. GOFF. I wish to say to the Senator fmm Monta'Ila

that, in the light of the facts, he is absolutely justified in the conclusion ·he has reached that the President of the.

United States had nothing whatsoever to do with this matter. I make that statement to the Senate from my own ' knowledge after a personal conversation with the President to that effect.

Mr: WHEELER. I wish to say to the Senator from West Virginia that I am glad to hear him make that statement; I am glad tei know the President told him so; but, when the roll shall be called, if the Senate shall vote to request the President to return the names to this body and he does not return them, then I say he will not be able to escape the charge that he himself is supporting and helping the power interests to carry out the scheme which, as everybody knows who is familiar with what has been going on, they have been endeavoring to carry out in relation to these men. They have gone over my State, for instance, to t1·y to find something upon Russell so as to discredit him; they have hunted the countl-y over searching for something on King in order to discredit hfm.

I say to you, Mr. President, and I say to the Senator from West Virginia, that if the Senate votes to request these names be returned to it, and the President of the United States, on some pretense or technicality, refuses to do so, the inference that he wants to have these men punished will be justtfied.

Mr. President, when Mr. Smith came before the committee and testified, · it was brought out by me that practically the only time he ever intervened in an election in the State of Maine was when the power interests were fighting on one side and the governor of the State and the people were on the other. At that time he intervened on the side of the power interests, and I became convinced right then and there that he was not the proper man to be placed upon the Power Commission. Then, what do we find his next connection is? We find him writing the foreword of a book iri behalf of a combination of superpower interests extending from the State of Maine to the city of Washington, including Great Falls, and we find him doing it at the instance of his friend W. S. Murray, the same man who filed charges with the Secretary of Interior asking that Russell be discharged or reprimanded just a few days before Mr. George Otis Smith came into office and just a few days before Mr. Russell was dismissed.

What connection, I should like to know, did Mr. Murray have with the firing of Russell? What connection, I should like to know, exists between George Otis Smith and this man Murray, who put in a charge -which was sought to be cut out by Russell of something like a million dollars as a legitimate claim to be paid back by t.l!e Government at the end of 50 years? Russell cut it out. He came in conflict with Murray. George Otis Smith, Murray's friend, came in as chairman of the commission, and immediately, the next day after he came in, Russell was fired.

:Mr. GOFF. Mr. President, will the Senator yield right there?

Mr. WHEELER. I shall be glad to yield. Mr. GOFF. Those facts were before the Senate when

Mr. George Otis Smith was confirmed. Mr. ·wHEELER. No; they were not. Mr. GOFF. They were kno n by the committee. Mr. WHEELER. They were not before the committee, and

they were not all known. Mr. GOFF. I heard them genera_lly discussed, and I sup

posed, of course, that Senators who were opposing the confirmation knew them.

Mr. ·wHEELER. I did not know them. M:r. GOFF. But this i.s what I want to say to my friend

from Montana: I am not advocating any Power Trust, and I have never jntend~d to protect any Power Trust in the argument which I have made before the Senate. I do not know what the President would do; but, speaking for myself, in the light of the law as I see it, if I had the responsibility of deciding this question, regardless of the interests that miebt be affected in any way, favorably or otherwise, I would neve:r Ieturn the papers. ,

I wish to say that merely in reply to the suggestion the Senator made.

1931 CONGRESSIONAL RECORD-SENATE 1599 Mr. WHEELER. I am not questioning what the Senator

says, but I am saying this: In the light of the facts and in the light of the law

I entirely agree with the Senator from New Mexico [Mr. BRATTON], the Senator from Georgia [Mr. GEORGE], my colleague [Mr. WALSH], and the rest of the lawyers upon this side who have spoken, that to all intents and purposes the name of George Otis Smith is before this body to-day; and, if it is not before this body then we shall have to say that the rules of the Senate are unconstitutional. We shall have to take the position either that they are unconstitutional or that the name of Mr. Smith is before this body.

Mr. NORRIS. Mr. President-The PRESIDING OFFICER. Does the Senatm· from

Montana yield to the Senator from Nebraska? Mr. WHEELER. I yield. Mr. NORRIS. So that I may not be misunderstood, I

agree with the proposition the Senator has just laid down; but I do not want the Senator to forget, and I hope he will not let the Senate forget, that after all the issue is what he laid down a while ago. It is much greater than any technicality; and the President is not compelled to rely on a legal technicality.

If we assume that the Senate wants George Otis Smith, for instance, put out of this office because of what he has done and what it is shown he believes in on the power question, if the President is in accord with that he will not try to back up under any legal technicality. If he believes with the Senate, if the Senate votes to reconsider, that the action Mr. Smith took, before the ink on his commission was dry, to fire two faithful public servants who were standing by the law and the Treasury of the country and the people of the country, was unjustified and should be rebuked, if he is interested with the Senate in firing the people wh<> were responsible for firing those men, he will not back up upon any legal technicality, however plain it may be to him as the ~~ .

Mr. WHEELER. Why, it seems to me that the President of the United States should have been shocked at the conduct of George Otis Smith and his commission when they took this action. He himself should not have waited for the Senate of the United States to move to recall the nominations; he should have said, "These men, King and Russell, have been fighting in the public interest as against the great power interest, "and I shall discharge those commissioners for their action." That is what he should have done.

Mr. NORRIS. Mr. President-The VICE PRESIDENT. Does the Senator from Montana

further yield to the Senator from Nebraska? Mr. WHEELER. I am glad to yield. Mr. NORRIS. If we had had a Roosevelt in the White

House when this commission took this drastic action, they would not have held their office over one night. They would have been fired as soon as the President knew what they had done.

Mr. WHEELER. I .have not any doubt of it. Mr. WALSH of Montana. Mr. President-The VICE PRESIDENT. Does the Senator from Montana

yield to his colleague? Mr. WHEELER. I am glad to yield. Mr. WALSH of Montana. I understood the position of

the Senator from West Virginia yesterday to be that the rule of the Senate is unconstitutional. That is the basis of his argument, as I understood.

Mr. WHEELER. Yes; I understood that that was the basis of his argument yesterday-that the rule of the Senate was unconstitutional.

Mr. GOFF. Mr. President-The VICE PRESIDENT. Does the Senator from Mon

tana yield to the Senator from West Virginia? Mr. WHEELER. Just a moment. I also understood that

the Senator from West Virginia very clearly understood that the issue before the Power Commission was as to one group being on the side of the public and the other group being on the side of the power interests. In view of that statement by the Senator yesterday, it seems to me that neither

he nor the President of the United States can afford to stand upon some legal technicality, even if they could. Frankly, I do not believe that the President of the United States, Mr. Hoover, will show himself to be of such a caliber as to stand upon a legal technicality and not return these names, in view of the statements made by the Senator from West Virginia upon the flo:>r of the Senate, in view of what the facts are, and in view of what every man in the Senate who knows anything about it knows, and what every member of the press gallery knows who has followed the situation before the Power Commission.

:Mr. GOFF. Mr. President, now will the Senator yield? Mr. WHEELER. Yes; I am glad to yield. Mr. GOFF. The Senator and his colleague have stated

what they understood to be my position. They have stated only one-half of it. I said that the Senate had not only waived the application of these rules by the action it took, but that if the Senate had not waived it then these rules themselves were unconstitutional. If there has been a waiver, or if the rule itself is unconstitutional, I submit to the Senator from Montana that there is no moral or Executive obligation upon the part of the President requiring him to return a matter here when there is no law or rule existing which would require him to do so.

Mr. WHEELER. Yes; but there is a moral obligation upon the part of the President of the United States to see to it that employees of the Government who are carrying out the will of the Congress of the United States and who are trying to protect the public interest are not discharged when the power interests want them to be discharged. That is the moral obligation upon the part of the President of the United States; and, for my part, I do not believe and I can not believe that the President of the United States will shirk that moral obligation when it is called to his attention.

Mr. BLACK. Mr. President--The VICE PRESIDENT. Does the Senator from Mon

tana yield to the Senator from Alabama? · Mr. WHEELER. I yield. Mr. BLACK. Does the Senator understand that the Sena

tor from West Virginia took the position that these men could be removed only by impeachment?

Mr. WHEELER. No; I do not think he took that position.

Mr. GOFF. No; I did not take that position-never. Mr. BLACK. The Senator took the position, as I under

stood him, that the President could remove them if he saw fit.

Mr. GOFF. I said that the only thing that could be done now, legally and constitutionally, to separate these men from their respective offices, was for the President to remove them under the authority resident in the Executive, or for impeachment proceedings to be commenced in the other House.

Mr. BLACK. Then. the Senator does not think there is any legal or technical barrier which would prevent the President from removing these men if he so desired to do?

Mr. GOFF. There is nothing that will prevent the President from removing anybody whom he appoints, at any time that he so desires, and without giving any reason therefor. .

Mr. BLACK. So, if the Senate was right in its position, if the President knew that these commissioners had discharged men whose sole offense was preventing the padding of the capital accounts of power companies, there is nothing in the world to prevent the President from removing them, even under the Senator's contention as to the law?

:Mr. GOFF. The President can do whatever he sees fit to do.

Mr. WHEELER. Now, I desire to call attention to what has been going on with reference to padding some of the accounts.

Sections 3, 14, and 20 of the Federal water power act direct the Federal Water Power Commission to determine the net investment on every project under license, based upon the actual legitimate or original cost of construction. This is used as a basis for security issues and rate schedules. The power companies contend that the Power Commission

'1600 CON-GRESSIONAL RECORD-SENATE JANUARY 8 should accept any statement they make as to plant cost&just have a · clerk ·rubber-stamp the report, as it were, and that is all. They claim that the Power Commission has no legal right to question these figures until the expiration of the lease, 50 years hence; and that was the position that Bonner took. His position was almost identical with that of the power interests.

The position taken, if you please, by Mr. King and Mr. Russell was that the law directed them to examine these 1·eports of net investment to see if they were accurate or padded. :M:r. King filed with the Interstate Commerce Committee last summer, on demand, a statement covering some 27 projects, showing where the power companies were attempting to inject millions upon millions of water and write-ups into their accounts. He explained that not only did these violate the law, and that the electrical consumers would be compelled to pay dividends upon these fictitious values for half a century, but that Uncle Sam would have to pay these extra fraudulent accounts when he took the property back. That is the issue in the commission.

Mr. COUZENS. Mr. President, will the Senator yield? . The VICE PRESIDENT. Does the Senator from Montana

yield to the Senator from Michigan? Mr. WHEELER. Gladly. Mr. COUZENS. Does the Senator understand that that

issue has not yet been determined by the legal authorities required to determine it? Does he understand that that issue between the employees has not yet been determined by the commission?

Mr. WHEELER. I understand that it has not been determined by the commission; yes. Of course, they have not had time to determine it yet. I say, however, that when· they fired the two men who have been working on the thing, the only two men who have stood up there in the public interest ever since the Power Commission was created, particularly King, the accountant, and Russell, who has ·been giving the legal status to it and backing up King-when they fired those two men, it could not help but indicate to anybody who knuws anything about the matter and has followed it that these men were taking a position on the side of the power interests; and I think the President of the United States, when he knows the facts, will have the moral courage to come out and stand by employees who have been and are fighting on the side of the public. I think Senators on the other side are belittling the President when they say that he should stand upon a legal technicality, even though he could, and not send back these names. I .refuse to believe it.

No one knows the exact amount of the fraud that the Power Trust is thus attempting to put over on Uncle Sam and the people, but my guess is that it is between five hundred million and a billion dollars; and then somebody says that this is not an important issue to the people of this country! That is the issue. That is the issue that has been made by Russell and King on the one side, ~and Bonner on the other. That is what we are fighting for. We are not fighting for Russell. We are not fighting for King. They are mere pawns. We are simply saying that these two men who have brought these things to light are entitled, in all decency, to have the support of every right-thinking man in the Senate of the United States, and they are entitled to have the support of the President of the United States of America; and I believe they will get it ·when the facts become known to him, if they are not already known.

There have been on the commission three powerful members of the Cabinet, including the present Secretary of the Interior. Did they fire Russell? Did they fire King? Either one of two things is true-either they did not fire them because they thought they were good servants, or you have to charge theni with being moral cowards and not having the courage to do it. Which horn of the dilemma do you want to take?

Mr. King has been checking up on these attempted steals for 10 years. He never had an adequate force of accountants until last year; but he has done his best, and the result of his work during the last 12 months was astoni.:;hing and highly important to the people of this Nation.

Mr. King holds that the power companies should obey the law in respect to making reports ·promptly after construction of a plant and promptly re!Y.)rt additions from year to year. Through the 10 years of the Harding-Coolidge regime that provision has never been enforced. It was only when King and Russell came in and brought this thing to light that they started to enforce it; and now their heads are to be chopped off. At whose instance? At the instance of the power interests. At the instance of the great combinations of wealth in this country two insignificant clerks are to have their heads chopped off because of the fact that they run counter to this great octopus which extends from one end of this country to the other.

People are crying for food throughout this land because of the fact, they are told, they are producing too much. · They are told they are going hungry because they are producing too much food. They are told that they are going without clothes because they are producing too many clothes, and that they are going without shelter because of the fact that they are producing too much building material. While the people are walking the streets and going hungry . all over this country to-day, the Republicans are going to let the great power interests, which have helped to bring about this condition, punish two individuals because of the fact

1 that they just happened to get in their way; and we placed them in the position where we said to them, "You do certain things,, which they did, and now we are going to chop their heads off.

Mr. Bonner, on the other hand, has held that these provisions should not be enforced. Let me call attention to the fact that Mr. Bonner was over speaking before the engineers in the city of New York, where one of the professors of Stanford University denounced him before the engineers' organization of the country for his position. Yet because these other men have taken the same position which the engineers in the city of New York took in their meeting, when they denounced Bonner in open meeting, you are going to let Smith punish them.

As I said a moment ago, Mr. Bonner says he doe$ not think these provisions to which I __ have called attention should be enforced. He refused to execute orders that they be made speedily effective. He was willing to let the power companies file as they pleased, or not at all. He blocked Mr. RuSsell and Mr. King at every turn. He was very insulting and nasty in his conduct toward them. Then you men say that you want to get rid of them because there was trouble between them. What would an honest, decentthinking man do under the circumstances? What would you men have done under the same circumstances? Would you have sat idly by and allowed these men to come in and file false reports? Would you have let them pad their accounts? Is there a man upon the other side of the Chamber who would stand here on this floor and say that under the same circumstances he would not have done exactly what King and Russell did? Where is the man who will stand up and say he would not have fought for the public interests; would not have fought to strike out padded accounts? Then you tell me that the President of the United States is going to discharge them because they did wliat every one of you men on the other side of the Chamber would have done under the same circumstances.

This attempted evasion of the accounting provisions of the power act caused the first clash between Bonner, King, and Russell. Bonner repeatedly stated he was not in sympathy with that provision, slurred accountants as " mere clerks," tried to transfer the accounting system to other departments · in such fashion that its effectiveness would be lost , blocked the adoption for months of ~ules of proc~dure, and then went to the astonishing length of suggesting to a power company to withdraw· its application for a major license and apply for a minor license so that it could escape the cumbersome accounting provision of the law. That is what Bonner has been doing. That is how he has been representing tha power interests. That is what the fight has been. That is what all the trouble has been about.

I have here on my desk a statement as to several projects. Let me call them briefly to the attention of the Senate.

1931 CONG-RESSIONAL RECORD-SENATE 1601 Here -is project No: 516. The power company in this case j tions for the project works, equipment, and so forth, and reported . $1,249,000 as the cost before commencement. of entered into ne?otiations with the manufacturers for the construction. Of this amount, these discharged officials purchase of eqmpment. . . eliminated $412,000. The larger part of the sum repre- . Under date of January 19, 1_924, the Pike Rapids Power sented payments tow. s. Barstow & Co. and W. S. Murray Co. entered into a contract With Jam_es 0. Heyworth for of superpower fame, each of the sum of $150,000. Is it any ~he construct~on of t~e Blanchard Rapids· development, but wonder that Mr. Murray is angry? Is it any wonder that m the meantime, durmg the latte~ part of Devember, 1923, Mr. Murray filed a protest, as I understand he did, with Heyworth_ & Seaman had_ sold their 330 shares of stock to the Secretary of the Interior against these men? Mur- th~ Amencan P?~er & Light Co. That company also acray was the friend of Smith, and is it not significant that qmred the remammg 55 shares, a1_1d on o~ about December when Smith came into office Mr. Russell was fired? 29, 1923, assumed control o~ the P1ke Rap1~ Power Co.

on cross-examination of w. s. Mun-ay, George Otis This report ~hows how this whole transaction w_as handled Smith's friend, by Mr. ·Russell before the commission, Mur- and wa~ mampulated for the purpo~e, unquest10nably, of ray admitted that the $300,000 was but a part of the sum of defrauding the Governm~nt of_the Umted States. The:e are $1,000,000 which he and Barstow had agreed to split between a _lot of these cases here m wh1c~ ~e shoul~ not stop sunply them as a fee for putting their two plants together. Three With t~e accountant and th~ s?hc1tor fi?dm~ them out and hundred thousand dollars was to go into the so-called pre- reportmg them to the commiSSio_n. They ?u~ht to be turz:ed license cost and $700 000 was to be included in the post- over to the Department of Justice for cnmmal prosecu~10n li ' tr t· ' t for an attempt to defraud the Government of the Umted cense or cons uc Ion cos . . . . States ·

Out of the funds raised by the ISs~an?e of secu~Itles, th~re But. for doing their duty King and Russell have been was pai,d $~35,000 ~o Barstow for his Site conso~Idatedfi w~~~ discharged. Call it what you may, they have been disMurray s Site, which $135,000 was ~e~ely a Jump g charged. -'-'heir heads have been cut off· they have been while the accountants for the comnnssi~m found ~hat the kicked ~ut in disgrace because they h~d the intestinal actual amo_unt was $1~,000. Are you gomg to pumsh R~- stamina to do their duty and not bend their knees to the sell and King for savmg the Government $412,000 on thiS great power combine Then tell me that the President of item? Are you go~ng to say that ?ecause o~ the fact that the United States i~ going to hide behind some technithey found this clalm and knocked lt out, thelr heads si:ould cality' Senators do him an injustice when they make that be chopped off? Do you mean to tell me that the President t t · t .. of the United" States is goi~g to stand upon some technicality s ~:~e~s· another project, project 469. The facts here / and let these m~n be fired· . . . show that the power company claimed a cost of $1,410,000,

As I said a moment ago, I do not believe It, and I Will of which $450 000 was cut off by these discharged em- / not believe it until he sh~ws to me that he has not .the ployees. Four' hundred and fifty thousand dollars saved j moral stamina to stand up m the face. of facts of that kmd. the Government of the United states, $450,000 cut out of 1 I think h~ would h~ve done it before if he had known what the capital cost which would redound to the benefit of the the facts m the case were. . consuming public, and they are to be punished for it.

Out of a total of $18,065,850 for five cases wh1ch I have In this case a number of local companies in Minnesota before me, it is claimed that approximately $10,000,000 of were acquired by the Minnesota Utilities Co., owned by the this amount had been eliminated by the discharged em- Electric Bond & Share Co., at a cost of $17,200,000, which ployees in these cases. . cost was found by accountants of the commission to be cor-

In this case, project No. 346, the power company filed a rect. The property was thereupon transferred to the Minclaim of actual cost totaling $3,451,000. Of this amount, nesota Power & Light Co., another company owned and Mr. King, the accountant, on the advice of Russell, the soli- controlled by the Electric Bond & Share Co., on which there citor, eliminated $1,219,000. The facts in this case are that was· an overnight write-up of $20,000,000, a part of which this is the Electric Bond & Share Co.; that one of the gross write-up applied to the cost included in the $1,410,000. Are irregularities· in the cost-accounting report is the fact that we going to stand upon a technicality when these men have the American Power & Light Co. loaned the money to a sub- saved the Government this money? Are we going to say sidiary company to construct the plant, accepting notes in the rules of the Senate are unconstitutional? • If we do, payment therefor totaling $3,060,000. Those notes were dis- and if the President of the United States hides behind that counted by the American Power & Light Co., and but $2,754,- sort of technicality, then let me say to Senators on the other 000 were turned over to the operating company. side of the Chamber that the charge will be made, and in

Shortly thereafter the property was transferred to another my judgment it will be justified, that the great power intersubsidiary company, and the notes were redeemed at their ests of the country not only contributed to his campaign full face value, which returned a rate of interest to the but that they are running his administration. American Power & Light Co. running from 17 per cent to In project No. 432 a claim was made for $924,850 as an 4,000 per cent, and in addition to that they charged up 7 investment in a project in North Carolina. Of ·this amount, per cent interest upon the discounted amount advanced to $779,329 was eliminated by King, the discharged accountant, the construction company. on the advice of Russel. The facts show that there are fees

The complete transaction in this matter is as follows: charged to the public in North Carolina for supervision by Transfer of control of the Pike Rapids Pow3r Co. to Hey- the Electric Bond & Share Co., of New York, and likewise

worth & Seaman. Up to March 31, 1923, there had been charges of their lobbyist in Washington, consisting of salary issued by the Pike Rapids Power Co. only 385 shares of the and expenses. These charges run through all of these common stock, of the par value of $100 per share. In the accounting reports. commission files is a copy ·of an option, dated March 31, The Phoenix Utility Co. is a construction company owned 1923, whereby certain stockholders of the company agreed by the Electric Bond & Share Co., and all contracts for conto sell to James 0. Heyworth and George M. Seaman, of struction by the Electric Bond & Share Co. are made with Chicago, 330 of the 385 shares then outstanding. The op- the Phoenix Utility Co. The Phoenix Utility Co. does not tion was exercised, and thereafter for a time control of the own property enough or material enough to construct a Pike Rapids Power Co. rested with Heyworth & Seaman, l-ear garage; and yet all of the money expended for conwho prosecuted an application before the commission for a struction by the Electric Bond & Share Co. is paid through license, and also caused to be made certain engineering the Phoenix Utility Co., and the Electric Bond & Share Co. investigations and studies. receives a percentage on all those construction costs. I am

License for the Blanchard Rapids project was issued on informed that the records show that the income from this August 25, 1923, following which James 0. Heyworth, now paper construction company runs into millions of dollars for deceased, who was an engineer and contractor, appears to I the Electric Bond & Share Co. and is paid for by the public. have proceeded with the preparation of plans and specifica- Again these facts were brought to light by these l wo men.

LXXIV--102

1602 CONGRESSIONAL RECORD-SENATE JANUARY 8 Here is project No. 309, the Clarion River Power Co., in

Pennsylvania. This case shows glaring irregularities of the power company accounting which made up the amount of $11,032,000 as the cost of constructing property in Pennsylvania. Of this amount, these discharged employees struck out $6,387,000. This is the case which was taken to the Supreme Court of the District of Columbia, which was argued before Justice Adkins on ·necember 8 by Mr. Russell, representing the Government. Here is a case where the same people, H. D. Walbridge & Co., who own the construction company, own the power company. The power company entered into a contract with the construction company and the owners of the two companies, the same H. D. Walbridge & Co., charged to the power company the amount paid to Walbridge, which was $300,000, as a fee for inducing his own construction company to enter into a construction contract with his own power company.

Is it any wonder, when Russell brought out these facts, that the power interests felt outraged? Is it any wonder that they wanted to see him discharged and King kicked out of office in disgrace? They wanted to serve notice upon every employee and every official in the country that " the minute you tread upon the toes of this great octopus you must expect to be punished, you must expeet to be disgraced." I say that here is one time and one place where the Senate of the United States should assert its manhood and say to this great octopus, "We are not going to permit honest public officials to be trampled beneath your heel because they are serving the public interests." I say shame on the man who under these circumstances would try .to hide behind some technicality.

The same Walbridge & Co. owned the finance company. The finance company contracted with the power company and fees of the same nature were charged and paid in the sum of $200,000 for so inducing one of these companies to enter into a contract with the other company. Where is the Attorney General of the United States that he does not file a criminal prosecution against this oufit for attempting to defraud the Government of the United States?

Eight hundred thousand dollars of such fees charged into this account were eliminated on Russell's opinion. Furthermore, an old predecessor of the company issued $4,000,000 par value of bonds, and of this amount but $1,000,000, or a little over, was actually received in cash, and yet the whole $4,000,000 par value was charged up to the cost of construction. On top of that there were fees of $2,550,000 paid for engineering and supervision that represented nothing but high finance.

The same company owned the Clarion Water Co. at Clarion, Pa., near where the dam was built. The power company paid for construction of a new water. plant for the city, and the cost of the water plant was charged up to the power company, totaling over $250,000. There are unsupported items of over $1,000,000, and a finance charge of over $1,000,-000 in this high-finance maneuver. A summary of these proposed eliminations, with full explanation, is contained in the report which I have before me and may be found on page 25 of this docket of the Federal Power Commission, project 309.

I asked Mr. Russell to furnish me with a statement of the general amount of work and what that work consisted of in his office as solicitor at the time he was discharged. His oral report to me is that there were pending on his desk 11 of this character of cases to be tried; that many more were in process of preparation; that one case was in court; that another case was about to be brought, the nature of which he did not disclose; that eight cases aside from those mentioned had been decided by the former commission on his recommendation, but that all the cases involved further proceedings of considerable magnitude; that he had on his desk three exhaustive briefs to prepare, involving very intricate questions, the preparation of which should be completed by the 1st of February; that he had before him the preparation of proceedings before the commission involving more than 10 specific subjects of a general nature for presentmen and argument before the commission; that

there were at least six cases in different jurisdictions of the United States where the power companies had refused to permit examination of their books, and suits would have to be instituted in all six cases; that the commission never exercised its authority except in one case over the issuance of securities of corporations subject to the act; that there were numerous cases where this should be done and that he has prepared in part a modus operandi for the determination of such cases and that the present commission would be faced with the intricate subject of laying down procedure for the issuance of securities as required by the act.

Where is the lawyer in this body who will say that some lawyer can be taken in hand to-morrow and placed in charge of these cases and have the work go on as it should go on? To be most gentle toward Mr. Smith wol,J.ld be to say that he is incompetent and did not know what he was doing when he would discharge a man under the circumstances existing at this time.

Mr. WALSH of Montana. Mr. President---The PRESIDING OFFICER (Mr. BINGHAM in the chair).

Does the Senator from Montana yield to his colleague? Mr. WHEELER. I yield. Mr. WALSH of Montana. The supreme importance of the _

facts to which the attention of the Senate has just been invited and not heretofore referred to must be recognized by everyone. I inquire of my colleague it it is conceivable that the three members of the commission understood the critical situation in which the business of the commisSion, reposed in the commission, was at the time this action was taken?

Mr. WHEELER. It 'seems to me it would be impossible for them to have appreciated it in view of what they have done.

Mr. WALSH of Montana. I apprehend that the same situation exists with respect to Mr. King. Mr. King doubtless had worked up for Solicitor Russell the points upon which he expected to make his contention before the courts before which these proceedings were pending.

Mr. WHEELER. That is undoubtedly correct. Mr. WALSH of Montana. I would like to inquire of the

Senator from West Virginia [Mr. GoFF) if he perchance conceives that this is an important matter to which I have adverted?

Mr. GOFF. • Mr. President---The PRESIDING OFFICER. Does the junior Senator

from Montana yield to the Senator from West Virginia? Mr. WHEELER. I yield. Mr. GOFF. I can see the force and effect of that argu

ment, but I do not see its importance for this reason: I do not concede the position taken by either of the Senators from Montana that these men were discharged by the commission. - Mr. WALSH of Montana. I understand. I did not illtend to raise any controversy about that matter with the Senator from \Vest Virginia; but my colleague is calling our attention to questions of the most profound importance now pending before the various courts of the country, requiring the services of a lawyer thoroughly familiar with the facts, and thoroughly familiar with the law applicable to those facts, and likewise calling for the highest character of expert testimony by an accountant. I, therefore, simply addressed myself to the Senator from West Virginia to inquire whether he does not, as a· lawyer, recognize the supreme importance of that situation as it relates to the question of whether these men ought to be at least ternporarily retained or not.

Mr. GOFF. Has the Senator finished his question? Mr. WALSH of Montana. · Yes. Mr. GOFF. I appreciate when any lawYer or any ex

pert accountant has worked up an important and intricate case involving the law and figures that a stranger can not immediately take possession of thos.e facts and present with equal efficiency the issues involved. I think there is absolutely no question about that; but I will say to the Senator, to relieve his feelings in the matter, that these men have all filed their applications, as requested to do, for re-

1931 CONGRESSIONAL RECORD-SENATE 1503 instatement, except Mr. Bonner, who declined to have any-· thing further to do with the Power Commission, giving as his reason that members · of the Senate had criticized his conduct while acting as the executive secretary. If the commission should act contrary to the wishes of these men and 1·efuse to reinstate them, then I would say to the Senator that his contention would be more meritorious than I now consider it to be.

Mr. WALSH of Montana. Is the Senator's statement in the nature of an olive branch?

Mr. GOFF. No, sir; I am not holding out any olive branches· to the Senator, because I know he would neither accept them nor treat them in that way.

Mr. WHEELER. Mr. President, let me say in reply to what the Senator from West Virginia [Mr. GoFF] has stated that, according to my information, if the facts were just as the Senator has disclosed them and as I know he believes them to be, it would be quite different from the picture which I have of the situation.

Let me call the attention of the Senator to the fact that when we amended the original water power act, as the Senator knows, we had in mind not having the Army engineers do the work here in Washington. So we wrote into the provisions of the amendatory act this language:

SEc. 2. The commission shall have authority to appoint, prescribe the duties, and fix _ the salaries of, a secretary, a chief engineer, a general counsel, a solicitor, and a chief accountant; and may, subject to the civil service laws, appoint such other ~fficers and employees as are necessary in the execution o! Its functions and fix their salaries in accordance with the classification act of 1923, as amended.

Previously Mr. Bonner had been having the Army engineers do the work here in Washington. The Congress provided in the law in effect that a civilian engineer should be employed by the commission. Did the commission scrupulously follow the direction of the law? Did it go out and hire a chief engineer? Not -at all. It is still employing the same Army engineer to do the work who . had been previously employed.

Not only that, but, if my information is correct, Mr. Smith called Mr. Russell into his office and told him that he could hot work with the commission any more. Does that look as if he were merely automatically putting him aside, or does it look as if, because of the fact that he knew his friend Murray and the power interests were fighting Russell and opposing him, he did not want him there? He so disregarded the public interest that he did not even look into the question as to whether or not this litigation was pending; he so disregarded the public interest that he never even ascertained how many cases were pending; he never ascertained how much work was piled on the desks of these men; he never ascertained the nature of their work or anything about it; but he automatically fired them, and then said to Mr. Russell he could not come back. If my information be correct, be even went farther than that and said to one of the other employees, " Unless you behave, you, too, will be fired."

Now, going back to the work before the attorney of the commission, let me call attention to the fact that Mr. Russell informed me the amount of legal work in his office would require an additional force of at least five competent attorneys for a period running from two to three years, in order to catch up with the accounting and the valuation work of the commission, and bring it up to date as Congress intended it should be done. In addition to that Mr. Russell informed me that in a period of one year he had prepared 21 formal opinions involving intricate questions of publicutility regulation.

I have before me a bound copy of those opinions. I have perused some of them to a considerable extent. They embrace such complicated and involved problew..s that it is next to impossible for the ordinary practitioner even to understand of what the questions consist. Let any lawyer in this body go through these opinions, which I hold in my hand, and he will readily see that unless an attorney has had experience along this line he ·will not know the first thing about the cases. It is only by years .of training

public-utility regulation that a man can become familiar with this kind of work. Mr. Russell has been engaged in it for more than 20 years; he has seen it grow from nothing to its present enormous proportions; he is familiar V{ith every detail of public-utility regulation, with the laws of the

· different States and with the Federal water power act, and, as I have said, when he became connected with the Federal Power Commission it was on the recommendation, amongst others, of the Chairman of the Interstate Commerce Commission, Mr. Lewis, who gave him the highest kind of recommendation, which I have asked to have inserted in the RECORD along with other similar letters.

As I am informed,. Mr. Russell has not had any trouble with the attorneys for the power companies excepting as to purely legal questions where he has had to contest illegal claims which have been made.

Let me call attention to the fact that the disharmony that has been cried about from every corner was due to an honest attempt by Russell and KLTig, on the one hand, to enforce the law in the public interest, and Bonner, on the other, who was constantly seeking to aid and was constantly representing the power interests.

It seems to me that that is the kind of disharmony we want in some of the Federal commissions. We do not want employees to bold positions merely for the sake of harmony. We do not want such employees, merely for the sake of harmony, to violate their public trust, and we ought not to punish men who are seeking to carry out what we direct them to do; we ought not to punish them because they can not get along with some one else who seeks to violate the instructions given to him by the Congress of the United States or who is so disregardful of the public interest that he will pay no attention to our instructions.

Bonner was determined to force through what are known as minor-part licenses for power sites. This brought him again in direct conflict with Russell and with King. The law provides that any company desiring to develop a Federal water-power site shall obtain from the commission a 50-year license, and be subject to strict regulation as to investments, securities, recapture provisions, and so forth. This may be called a major license. As a matter of convenience, the law also permits the commission to issue minorpart licenses, of extremely inconsequential character, in which the regulatory provisions are waived. The Power Trust attempted to expand this minor-part clause into a loophole in order to escape regulation. . The Appalachian Power Co., controlled by the Electric Bond & Share Co. of New York, tried, for example, to get a minor-part license on an 80,000-horsepower site on the New River in Virginia and West Virginia. Bonner was for it; Russell declared it absolutely illegal, and also destructive of the power act. He pointed out to Bonner that if one company could secure a minor-part license for a power site on an alleged nonnavigable river, it would set a disastrous precedent; in the future companies holding major licenses would demand that they be changed and reduced to minor licenses, and great sites would be leased on reduced terms, with the net result that the power companies would escape regulation on approximately 90 per cent of Uncle Sam's power sites, and many millions of dollars of " blue-sky " securities would be unloaded upon the public.

Where do we stand with reference to that question? · Do · we want to uphold Mr. Bonner; do we want men on ·the Power Commission who are going to be subservient to the Electric Bond & Share Co. or any other power interest, or do we want men who will can-y out the wishes of Congress?

Are we going to say that the President of the United States of America may hide belaind a legal technicality and discharge men because they- have been fighting on the side of the public? I repeat, when that is said about him, it, in my judgment, does him a great injustice. I think he is too big to do a thing of that kind; and if he is not too big to do it, but is small enough to do so, then he is not big enough to be President of these great United States of 1\..merica.

When this controversy was going on the question naturally arises, Where -was the Power Commission at .that time? Where was Wilb'ur? Where were the other members of the

1604 - CONGRESSIONAL RECORD-SENATE JANUARY 8 Cabinet when this :fight was going on? Did Mr. Wilbur know of this controversy? Did .the Secretary of War know of this controversy? Did Secretary Hyde know of this controvr.rsy? Did they know the truth about this disharmony? Did they know the ·fight that was being made, on the one hand, by men trying to do what the public wanted them to do, namely, to represent their interests? Did they know what Russell and others on the staff of the commission had done with reference to knocking out millions upon millions of dollars of watered stock and fake claims? Did they know that? If they did know it, why did they not act? Is the answer to that question, that Dr. Ray Lyman Wilbur, acting chairman of the commission, was in sympathy with Bonner and what Bonner was doing? Is that the answer? Is the answer to it that the President of the United States was in sympathy with him, as Bonner said he was? I do not believe it.

What is the answer to it? If the President is not in sympathy with Bonner, as Bonner said he was; if Hyde was not in sympathy with Bonner, why did they not act? Why do they simply come and talk about " disharmony " when two men are representing the public interest, and another man is working in the interest of the power companies?

Mr. Bonner, it would seem, was trying to wreck the Federal water power act. Did Mr. Hoover know about it? If he upholds George Otis Smith and this commission in this fight; if he says to them, "We are going to hide behind a technicality, and not send back -the names of these men," then we can come to only one conclusion-that Mr. George Otis Smith was acting under orders from the President of the United States, that Dr. Ray Lyman Wilbur and the other people were supporting Bonner, and that they wanted to break down the Federal Water Power Commission and the Federal water power act, as it was enacted by the Congress of the United States. That is the issue that Senators will have to meet in the next election if they do not do their duty in this instance.

The people all over this country are getting restless over the great combinations of wealth that are centering in Wall Street. They realize that with the consolidation of railroads, and the consolidation of banks, and the cham·stores, the State commissions are almost helpless to deal with them. They are turning to the Government here in Washington as they have never turned to it before, and they are saying to the people in Congress, "We are demanding of Congress that you act in the matter, because the State commissions are breaking down." Then when they turn to the Congress of the United States, they find in the Power Commission two men, a lawyer and an accountant, who are actually trying to work in their interest, discharged, fired and disgraced, kicked out if you please, because the great power interests want them kicked out; and they are told that the President of the United States is going to back up the commission in taking that action.

When I called attention, if you please, on the floor of the Senate to the connections of Mr. Garsaud and the power interests and said that he was recommended by Mr. Hecht, of the power interests in Louisiana, and by Mr. Butler, another representative of the power interests in Louisiana-• Mr. BROUSSARD. Mr. President--

The PRESIDING OFFICER (Mr. FESS in the chair). Does the Senator from Montana yield to the Senator from Louisiana?

Mr. WHEELER. I do. Mr. BROUSSARD. These letters that were inserted in

the REcoRD by my colleague [Mr. RANSDELL] at the hearings were letters which my colleague himself .solicited from the gentlem~n the Senator has mentioned after the opposition to Mr. Garsaud arose. Neither one of the gentlemen mentioned, nor any of them, so far as I know, recommended Mr. Garsaud for his appointment. They did indorse him after he was appointed.

Mr. WHEELER. They indorsed him; and not only that, but, as the Senator knows, Garsaud owes his very political life to Mr. Hecht, of the public service commission, which,

in turn, is . owried by the Electric Bond & Share Co., or controlled by it.

Mr. BROUSSARD. Mr. President, I challenge that statement. Mr. Gar saud was an employee of the levee board when the dock board, consisting of five members, unanimously, after six months' consideration of men qualified to hold that position, called him to that service; but he was already on the levee board.

Mr. WHEELER. Yes; I understand that he was there, appointed by Mr. Hecht to his present position; and I say that he owes his political life to Mr. Hecht.

Mr. BROUSSARD. The Senator may state it in that way, but the facts are otherwise.

Mr. WHEELER. I disagree with the Senator. I say that my statement is warranted by the facts brought out before the Interstate Commerce Committee when the hearing of .Garsaud was on.

I call attention now, if you please, to an article in the Washington Herald of January 5: POWER TRUST BACKS GARSAUD, FOES DECLARE-TWO BEHIND COMMIS

SIONER ARE STOCKHOLDERS IN BOND & SHARE

• By M. L. Ramsay Strong Power Trust support of Federal Power Commissioner

Marcel Garsaud, of -New Orleans, was revealed last night on the eve of the Senate fight to revoke the confirmation of Garsaud, Chairman Smith, and Commissioner Draper.

Senate foes of the new commission linked two of Garsaud's most influential indorsers 'nth the Electric Bond & Share Co. of New York, which, under a score of names, has obtained many of the country's finest water powers from the Power Commission, and is seeking more.

Bond & Share interests also are leading the fight for freedom from all public regulation, in the New River case, and the fight against accounting which led to the commission's removal of Chief Accountant William V. Killg and Solicitor Charles A. Russell.

The Garsaud indorsers are Rudolph Hecht and James P. Butler, New Orleans bankers and directors of New Orleans Public Service (Inc.). Hecht was found listed in new Federal Trade Commission reports as holding $41,360 of stock, and Butler as holdlng $18,800 of stock in the Electric Power & Light Corporation.

Both were named trustees under a hidden voting trust by which this corporation controls New Orleans public service.

I have here some additional notes along the same line. The voting trust includes 60 per cent of the common stock

of New Orleans Public Service <Inc.). The stock in the trust is owned by the Electric Power & Light Corporation. The same corporation holds additional stock in other ways. Its holdings in all represent 94.8 per cent of the New Orleans company stock. (Federal Trade Commission report on Utility Corporations, Senate Doc. 92, pts. 23 and 24, 70th Cong., 1st sess., pp. 1155, 1157, and 1158.)

I am reading this statement particularly because when I said that the electric light and power interests in New Orleans were controlled by the Electric Bond & Share Co., the statement was challenged in the committee.

In showing that the Electric Power & Light Corporation, in its turn, is controlled by the Electric Bond & Share Co., the Trade Commission notes, among other things, that the Electric Light & Power Corporation is staffed entirely by officers and employees of the Electric Bond & Share Co., according to the same report, part 25, page 842. Nearly 17 per cent of its voting stock is owned directly by the Electric Bond & Share Co. The ownership of the remaining stock is scattered. The Electric Bond & Share Co. also has huge holdings of option warrants entitling it to buy more stock. There is also a clause in the Electric Power & Light Corporation's by-laws giving its directors, dominated by the Electric Bond & Share Co., unlimited authority to issue additional stock. These various points are shown in part 25, pages 859 to 861.

In explaining the significance of the stock-issue clause the Trade Commission says:

If there should be an effort made by some outside interests to acquire control of the corporation, it would only be necessary for the board of directors to issue such common stock to Electric Bond & Share as was necessary to avert the danger, and this stock could be issued on whatsoever basis the board of d.irectors might decide.

The stock-issue clause is one of the sort now known to be widely used by utility companies, and at least to some exte~ by others,. which sets aside the preemptive right of

1931 CONGRESSIONAL RECORD-SENATE 1605 stockholders to subscribe to any additional stock which may be issued. This is done by express declaration; and the declaration is followed by the statement that the directors shall have authority to issue such additional stock to persons of their own selection and on such terms as the directors may fix.

In the Senate committee the connection between the New Orleans Public Service Unc.) and the Electric Bond & Share Co. was disputed and never established, because the Trade Commission records were not consulted.

The voting trustees who serve with Mr. R. s. Hecht and J.P. Butler are Sidney Z. Mitchell, chairman of the Electric Bond & Share Co., and C. E. Groesbeck, president of that company. There are only these four. (8. Doc. No. 92, 70th Cong., 1st sess., pts. 23 and 24, p. 1183.) This is one of the Federal Trade Commission's new reports, printed about two months ago.

I simply call attention to that fact. While I · say that, of course, it does not necessarily follow that because a man is indorsed by some power company he is going, by reason of that fact, to lean toward the power company, yet coupled with his actions immediately after he got on the commission in voting to fire two men who had been scanning the accounts of the Electric Bond & Share Co., and who had cut out millions of dollars of false and fictitious claims that they had put into their records, the indication to me is that he was at least rather friendly to the power interests and to the peO'ple who recommended him.

I want to say this in defense of Garsaud, however: I do feel that he is not as culpable in this matter as George Otis Smith, because George Otis Smith was on the ground. He ought to have known about the situation up there, as everybody in public life knew it, and particularly George Otis Smith, because he was up there in the Interior Department. I say that he is culpable because of the fact that he was holding public office here in Washington; that he is an intelligent man, and that he knew what was going on. He knew what the fight was probably as well as and better than most men in the United States Senate to-day. The Secretary of the Interior knew what it was; and if he did not know what it was, and if he did not know what these records show that I have brought here to-day, then he should have known it.

I do not see how anybody can stand upon the floor of the Senate and for one second do otherwise than condemn the actions of these commissioners and ask the President to return their names.

Let us look for a moment and see what some of the newspapers of the country that have been following this matter have said about it.

Here is an editorial, if you please, from the Milwaukee Journal. I do not think anybody will credit the Milwaukee Journal for a minute with being particularly liberal in their views. The heading is:

(From the Milwaukee Journal, December 27, 1930] OPPOSED POWER GRAB5-FIRED

Not often does the Senate get an object lesson of its carelessness, of its failure to protect the public interest, so quickly. Just before the holiday recess it hastily ratified the five Hoover appointments to the new Federal Power Commission, despite the fact that the list was packed with one ou~right opponent of municipal operation to act as chairman, two men charged with having had close relations with the power interests, and two nonentities, men for whom nothing much could be said. The ink is hardly dry on the Senate's ratification when the commission meets and as its first official act dismisses three men-its secretary, its solicitor, and its chief accountant.

As for the secretary, F . E. Bonner, his work had been under such attack by Senators that he had to go. There was plenty of indications that as the virtual head of the old commission he had· been prejudiced in favor of the power companies. But the dismissal of the solicitor, Charles F. Russell, and the accountant, William V. King, under the guise of a general "house cleaning" is an outrage. For these are the men who held the power companies in check. They stood for the public-and their reward is to be " fired."

Just as an instance of the work of Russell, recently he compelled the Lexington Water Power Co. to squeeze a million dollars of water out of the financial statement it submitt ed to the commission. This is the way Mr. Russell phrased the manipulation that was attempted: ·

"The General Gas & Electric Corporation is the company actually doing the business, and it lends to itself in the name of another company the money which belongs to itself and then attempts to charge the public interest on its own funds, loaned to itself by itself for the construction of its own property."

Russell stood guard against such manipulation and King stood with him, and for this they made bitter enemies among the power interests, of course. Senat or BROOKHART will move to have the Senate require a reconsideration of these dismissals by the commission. It is the least the Senate can try to do now. That body stupidly ratified this new commission. Unless it can keep some measure of control over the commissioners for which it becomes sponsor, the power situation is likely to become a good deal worse instead of . better. Have we reached the point where the reward of faithfulness to the public is dismissal if that faithfulness interferes with the schemes of power companies?

Here is another editorial, from the Philadelphia Bulletin: {From the Philadelphia Bulletin, December 24, 1930)

A CHANCE FOR A BLUNDER

The new Federal Power Commission, under Chairman George Otis Smith, would make an awkward bow to the Nation if 1ts initial act were to dump the solicitor of the old commission, Charles A. Russell, at the behest of anybody. <

The charge of belligerency filed against the solicitor by the general counsel of the National Association of Utility Commissioners will be regarded by a great many people in the Nation as a compliment and a certificate of good character for the office he holds. More belligerency in behalf of private rights on the part of State and Federal regulatory commissions i.n dealing with public sarvic~ would be. appreciated.

Mr. Russell may have been mistaken in this controversy with the Pennsylvania Public Service Commission. Here in Pennsylvania there is a quite general belief that the public service commission has much more power than it ever has attempted to U'>e in the regulation of public utilities, even to the extent of letting daylight in on their methods and processes of capitalization. But even if he were mistaken, his error does not warrant the new Power Commission in making au unfavorable appearance at this beginning of its career.

Here is another editorial, I think from the Daily News: FIRE THE COMMISSIONERS

At the present moment there is only one way in which t he United States Senate can oppose nullification of the Federal water power act.

That is by removal from the Federal Power Commission 'lf George Otis Smith, Marcel Garsaud, and Claude R. Draper, whose first act in office was dismissal of William V. King and Charles A. Russell, the two commission employees who have fought for enforcement of the act, for protection of the public's power resources, and regulation of private companies.

Pleasant promises of future rectitude are not convincing from these commissioners now. Reemployment of one or both of the ousted men, while the Senate temporarily holds a gun over the commissioners, would be no guara.ntee of conversion and devotion to the law.

The Senate has already been notified by the November balloting how the people feel about the matter. It does less than its duty if it does not transmit this w~rning to the administration.

Here is an editorial from the Baltimore Sun: [From the Baltimore Sun, December 23, 1930]

NOT SO PROMISING

The new Federal Power Commission takes office in a cloud o! doubt and suspicion. Not one of its members came unscathed through the fire of senatorial investigation. Under the circumstances, it behooves the commission first to make every effort to establish public confidence in its own good faith, for the.n, and only then, may it count on the strong support of public opinion in whatever action it may take with regard to the power companies.

But this public confidence will not be established by firiug every employee of tp.e old commission to whom the power interests object. The commission can not clear itself of suspicion of bias ill favor of the power companies by kicki.ng out Chief Accountant King, for example , who is the man the power interests are most grimly determi.ned to get. Yet a story from Washington in the Sun this morning gives reason to believe that King will be the first man to go.

If King and Charles A. Russell, the solicitor, who has also displeased the power interests, are thrown out of their jobs, the cloud of suspicion around the Federal Power Commission will thicken instead of disappearing. And it is already too thick.

Here is another edit01ial, from the New York World: [From the New York World, December 25, 1930]

TWO DISMISSALS FROM THE PUBLIC SERVICE

The new Federal Power Commission is off to a flying start. Its five members were confirmed by the Senate on Wednesday of last week On Tuesday of this week the commission issued its first official order, summarily discharging Charles F. Russell and William V. King, who served the old commission as solicitor and chief accountant. ·

1606 CONGRESSIONAL RECORD-SENATE JANUARY~ We are in no position to judge the extent to which these two

men were technically qualified for the o:Hices which they have occupied for some years. We do know that both men have frequently appeared in controversies centering upon the work o! the commission and that they have usually appeared in the role of advocates of more stringent regulation. It was Mr. Russell who filed charges before a committee of the Senate in February of this year to the effect that various important public-utility companies operating under the Federal power act have been permitted to inflate their capital accounts by many million dollars. It was Mr. King, in the rOle of chief accountant, who furnished the same committee with data which led Senator CoUZENS to describe the administration of the powar act as "the rottenest exhibition of government" he had ever seen. Both men, in short, seem to be of the sort frequently described by some of the private powe.r corporations as "trouble makers." That is, they ask unpleasant questions and insist upon compliance with inconV£-nient regulations. It may be that in pursuit of what they believe to be their duty they have shown themselves at times to be unduly suspicious, doctrinaire, and too easily alarmed by any threat to the public's interests. These are not grievous faults, considering the light-hearted complacency with which the power act has been administered.

It is a somewhat astonishing fact that these two men should have been discharged so promptly by the new commission. We are not surprised that the incident has created a stir in Wash~ ington or that it seems certain to be debated by the Senate.

Of course, they are " trouble makers." Anybody to-day in public life or in private life who attempts for one moment to interfere with the rule of these great corporations, extending from one end of the country to the other, is immediately charged with being a trouble maker if not with something else. Of course, you are a trouble maker when you say to the power interests, "You are inflating your capital costs upon which you seek to charge the public millions upon millions of dollars." Of course, you are a trouble maker when you say to the power interests, "You can not defraud the Government of the United States by filing false accounts, charging from $300,000 to a million dollars for entering into a contract with yourself."

Now, I call attention to an editorial from the Akron TimesPress of Akron, Ohio:

[From the Akron Times-Press, December 24, 1930] TBE WRECKING BEGINS

Christmas eve has brought to two public servants their reward for years of work. The reward is summary dismissal.

William V. King, chief accountant for the Federal Power Commission, and Charles A. Russell, its solicitor, have been turned out.

Monday afternoon three members of the new Federal Power Commission took the oath of o:Hice. Two hours later they met ancl agreed that these men must go. They filed no charges against them. They made no investigation of their records or the service they have performed. They·gave them no hearing.

Tuesday morning, without previous warning, King and Russell were handed letters telling them they were through.

Tuesday afternoon the Capital rang with indignation. King has been wit.h the Government 20 years. He has been with

the Power Commission ever since it was organized. He is one of the few men in the country with the expert technical knowledge necessary for performmg his duties. It is King who has fought against power companies seeking to pad their net investment accounts with charges for $3 neckties given guests at a party, and with other items amounting to millions o! dollars which he contends should not be charged against the public.

It is Russell who . has carried on the legal fight in support of King's contentions, who has written briefs and argued in court for enforcement of the water power act and in defense of the commission's jurisdiction under it. Russell was in the midst of a legal fight on which the whole future of the Federal water act depends when he was dismissed. He was battling for the validity of the act against a power company attack which, if successful, will reduce the Power Commission to a rubber stamp and the power act itself to a dreary joke.

The three members of the Federal Power Commission who dismissed these men have forfeited the _right to public confidence. They are George Otis Smith, Marcel Garsaud, and Claude L. Draper.

Instances have been called to my attention where the great, powerful power companies padded the accounts and charged themselves up with $3 neckties.

I likewise have another editorial from the Baltimore Sun, which I shall ask to have inserted in the RECORD as a part of my remarks.

The PRESIDING OFFICER (Mr. FEss in the chair). Is there objection?

There being no objection, the editorial was ordered to be printed in the RECORD, as follows:

[From the Baltimore Sun, December 24, 1930) STORM AHEAD

If the newly reorganized Federal Power Commission had wanted to inaugurate its career with a fine large row, there was no better way to do it than by bouncing William V. King, the commission's chief accountant, and Charles A. Russell, its solicitor. For several years these men have been under constant assault by representatives of power interests. The offense charged has been, in substance, a too scrupulous devotion to what they regard as the public interest in water-power developments under the jurisdiction of the Federal commission, with possibly a subsidiary offense of causing discord in the commission by disagreeing with those less rigorous in their views on such matters.

The only possible reward for taking such a course as Mr. King and Mr. Russell have been following is a meager Government salary and the sense of a job honestly and courageously done. There are no fat jobs awaiting men who relentlessly array themselves on the side of the public in such matters as those which come before the Federal Power Commission. Under such circumstances and in vie~ of the fact that these men are fired for being too harsh 1n their defense of the public interest, the public will certainly be heard from and the- new Federal Power Commission wm be launched in a storm.

Mr. WHEELER. I have another editorial from the Washington News, which reads:

[From the Washington News, December 27, 1930] TBE WRECKING BEGINS

Christmas eve has brought to two public servants their reward for years of work. The reward is summary dismissal.

William V. King, chief accountant for the Federal Power Commission, and Charles A. Russell; its solicitor, have been turned out.

Monday afternoon three members of the new Federal Power Commission took the oath of o:tfice. Two hours latel" they met and agreed that these men must go. They filed no charges against them. They made no investigation of their records or the service they have performed. They gave them no hearing. They gave the other members of the commission no chance to protest.

Tuesday morning, without previous warning, King and Russell were handed letters telling them they were through.

Tuesday afternoon the Capital rang with indignation. Senators who, on Saturday, had voted to install the new commissioners in office were incredulous and angry.

King has been with the Government 20 years. He has been with the Power Commission ever since it was organized. He is one of the few men in the country with the expert technical knowledge necessary for performing his duties. It is King who has fought against power companies seeking to pad their net investment accounts with charges for $3 neckties given guests at a party, and with other items amounting to millions of dollars which he contends should not be charged against the public.

It is Russell who has carried on the legal fight in support of King's contentions, who has written briefs and argued in coun for enforcement of the water power act and .in defense of the commission's jurisdiction under it. Russell was in the midst of a legal fight on wh.ich the whole future of the Federal water act depends when he was dismissed. He was battling for the validity of the act against a power company attack which, if successful, will reduce the Power Commission to a rubber stamp, and the power act itself to a dreary joke.

The three members of the Federal Power Commission who dismissed these men have forfeited the right to public confidence. They are George Otis Smith, Marcel Garsaud, and Claude L. Draper.

I have an editorial from Labor of December 30, 1930, which I ask to .have inserted in the RECORD as a part of my remarks.

The PRESIDING OFFICER. Is there objection? There being no objection, the editorial was ordered to be

printed in the RECORD, as follows: [From Labor, December 30, 1930]

POWER TRUST "GETS" TWO LOYAL PUBLIC SERVANTS

The perennial power row has broken out with renewed fury, and once more the administration finds itself at outs witb. the Senate progressives.

The new Federal Power Commission, appointed by President Hoover, was finally confirmed by the Senate on Saturday.

Monday afternoon the three members who had taken the oath of otfice held an executive meeting and discharged Executive Secre~ tary F. E. Bonner, Chief Accountant Willi~ V. King, and Solicitor Charles A. Russell. King and Russell are the men who, under the old commission, fought the claims of the power interests.

Bonner was appointed at the instance of Secretary of the Interior Wilbur, on the indorsement of the power companies of California, which he had dealt with as an official of the Forest Service.

He has been under fire from the day he took office on the ground that he was too friendly with the power interests, and he has carried on a bitter feud with Russell and King.

Bonner announced his intention to resign two weeks ago, in Q

statement saying that the Senate progressives were making the Power Commission a "political football." In his letter of resigiUl.-

1931 CONGRESSIONAL RECORD-SENATE 1607 tion he returned to the attack, saying that he was "tired of being crucified on the altar of politics." ·

Progressive Senators say that Bonner never has been rebuked for his attacks on the Senate. while one excuse given for discharging

· Russell is that he incurred the ill will of the Pennsylvania Public Utilities Commission by saying that it had failed to protect the public interests.

Though less in the public eye than Russell, Chief Accountant William V. King has long been in the black books of the power interests. He had the task of keeping "water" out of the accounts of power companies which took over Government power sites and holding them to actual legitimate investment.

The companies charge that Mr. King has been "too meticulous" in examining their -accounts. In the Clarion River case he challenged more than $6,000,000 out of a total claimed investment of $11,000,000.

A "confidential memorandum," found some time ago in_ the course of the Federal Trade Commission's power investigations, and apparently sent out from some central office to power interests, generally, outlined a plan to get rid of King.

It complained that Mr. King's insistent scrutiny would force the companies to be content with lower earnings, "with consequent dangerous effects on our stock values, now so favorably quoted."

The same memorandum outlined a plan, to be put through with the aid of the United States Chamber of Commerce, to hand over the accounting to inexperienced men in the different departments, who "at least will be removed from the direct supervision of Mr. King."

Now Mr. King, the man the Power Trust feared, is removed. The dismissal of Russell and King is explained in administration

circles as being in the interests of " harmony " within the commission. It had quite another effect on those progressive Members of Congress who are lingering in Washington during the holidays.

They were outspoken and bitter in their comment. In a letter to George Otis Smith, chairman of the commission,

Senator WALSH of Montana said: "I am unable to interpret the commission's action in any light

except as punishment of two devoted public servants for the faithful discharge of the duties that devolved upon them.

"So far as I have been able to learn, not a word has ever been uttered against either except that he employed excessive zeal in safeguarding the interests of the public.

" It is a matter of profound regret to me that the confidence I hoped the country would have in the new commission, of which you have become the head, should be so early and so rudely disturbed."

Senator NoRRIS said the commission's action was "almost unbelievable "; and Senator WHEELER, of Montana, declared that it proved that "Smith and Garsaud, at least, were tools of the Power Trust."

It is possible that when the Senate reconvenes a motion will be made to reconsider the vote by which the members of the commission were confirmed. If that carries, the entire matter will be thrashed out before the Senate Committee on Interstate Commerce.

The removal of Bonner means nothing. He will either get another position in the Government service, because of his civilservice status, or will be picked up by one of the big power companies.

King and Russell, on the other hand, having "offended the mighty," are out in the cold unless the Senate forces them back.

Mr. WHEELER. My attention has been called to an article which I was looking for a moment ago, and I want to call it to the attention of the Senate so that Senators may get a clear idea of what this fight is about, and what other people think about it. This article is from the Washington Herald of December 3, with a New York date line, December 2. and reads: -

[From the Washington Herald, December 3, 1930] BONNER STAND ON POWER HIT BY PROFESSOR-POWER COMMISSION

SECRETARY HEARS HIMSELF ACCUSED OF NONFEASANCE AFTER PAPER NEW YORK, December 2.-Frank E. Bonner, executive secretary

of the Federal Power Commission, heard his own policies assailed to-day at the American Society of Mechanical Engineers meeting.

Guido H. Ml\llX, professor of machine design at Stanford University, asserted that it was a question whether the attitude of Bonner did not amount to nonfeasance in office. The professor's attack was made at a meeting of the hydraulic division of the society.

URGED STATE CONTROL Bonner had read a paper on Federal Relations to Water-Power

Development in which he declared the primary relation of the water-power industry is with the States. He contended that the Federal Government should confine itself to a minimum of interference made necessary by the interstate nature of some problems. To this, Professor Marx retorted:

"To the student of the conservation movement, this paper, emanating from the executive officer primarily concerned with seeing that the act's provision protecting the rights and interests of the general public are effectively exercised, is more than a disquieting one. It is one which should stir to protest and action.

"The author says, • It has been recognized that electric power must of necessity be consumed in the immediate vicinity of its place of production.'

"Upon this, he rests his argument for State regulation • with minimum interference' by Federal authority.

STATEMENT FALSE " To engineers, possessing even the most elementary knowledge

of present-day electrical transmission of power, the statement is known to be the direct antithesis of actual fact. The argument based · upon it is as invalid as the foundation is worthless. A large part of the admitted failure of State regulation of public utilities .can be laid directly at the door of the lack of coincident jurisdictions."

Bonner made no response. The division voted to appoint a .committee of five to confer with the Institute of Electrical Engineers and National Electric Light Association to organize a body of engineers to confer with the Federal Power Commission on the best means of developing power resources of the Nation.

There again is the fight that has been going on, Bonner constantly seeking to nullify the provisions of the act, Russell and King on the other hand seeking to uphold the pl·ovisions and to make the great power interests of the country comply with the law.

As I said a few moments ago, I am not interested in Mr. Russell. When I was a candidate for Governor of Montana he opposed me. Likewise when I was a candidate for the Senate he was on the other side. He has been upon the other side of lawsuits. Not once has he supported· me. He came to Washington with recommendations from the leading Republicans of the State of Montana. Nor am I interested in King. I would scarcely know the man if he came into this Chamber to-day. But, Mr. President, I am interested in the great moral question as to whether or not public servants who do their duty honestly and faithfully as the Congress of the United States tells them to do, and who have had the temerity to stand up and fight against the great corporate interests of the United States, are going to be sacrificed upon the altar of greed and avarice.

I say to the Senators across the aisle that they do the President of the United States a great injustice when they say that he is going to hide behind some technicality and not do what I conceive to be his moral duty under the circumstances and the facts as they exist in the case before us here to-day. What President of the United States is going to say to these men, " I am going to uphold the man who has kicked you m;t in disgrace because you have had the temerity to stand up and cut out the fraudulent claims of the big power interests of the country?" What President of the United States is going to be so weak, if you please, that he will permit this outrageous act on the part of these commissioners to stand? Some one inquired what Theodore Roosevelt would have done if he had been President of the United States, what Woodrow Wilson would have done if he had been President of the United States under these circumstances. Neither one would have waited for the matter to have been taken up in the Senate and debated as to whether the names should be recalled. Those men would have been out of office a long time before this.

Senators, you will not be able to escape the charge that you have been unfair to two faithful public servants. You will not be able to escape the charge that you wanted to punish them because of the fact that the power interests have sought to get them. You will not be able to·escape the charge that you are hiding behind some legal technicality in order to protect the power interests in their desire to kick out of office men who dared to fight for right and justice while holding public office here in Washington.

Mr. HALE. Mr. President, the Senator from Montana [Mr. WHEELER] referred in his remarks to certain activities of Mr. George Otis Smith connected with the so-called power interests. Mr. Smith was born in the town of Skowhegan, in my State. He lived there until 1896, when he came to Washington and went to work for the Geological Survey. For a good many years he has been at the head of the Geological Survey. During all the time he has worked in Washington he has maintained his residence in Maine and has always gone there during the summer and spent a considerable portion of his holidays there. He has kept in touch with matters which concern the State of Maine and has aLways been very much interested in the State.

1608 CONGRESSIONAL RECORD-SENATE JANUARY 8 We have ·in · Maine a law which provides that the water

power of the State may not be taken outside of the State. I think that no other State in the country has such a law. The law was enacted some 15 years ago and since that time has been an issue in the State. Many people have favored the law and the retention of the power within the State on the ground that we should have the entire use of our own water power. Many have opposed the law on the ground that it has prevented the development of our natural water power. As I said, all the citizens of the State have been very much inte1·ested in the matter. Among others, Mr. Smith, who, with his work on the Geological Survey, has . had considerable to do with water-power matters, was very naturally interested. ·

About seven years ago, at a time when the matter came up before the legislature on the question of the repeal of the law, Mr. Smith wrote a series of articles in favor of the repeal of the law and pub~ed them in the Maine papers. I believe he. also got out a small pamphlet containing the articles, doing this at his own expense. I think the testimony showed that it involved a matter of some $78. He was not approached by any member of any water-power interest but simply did it as a citizen of Maine. I think the testimony showed that at one time Col. Frederick Parkhurst, who was at the time governor of the State, suggested that he do so. Governor Parkhurst was not in any way connected with any water-power interest so far as I know. What I wish to show is that Mr. Smith's action had nothing to do with wearing the collar of any water-power interest and was not taken at the request or instigation of any water-power interest.

Mr. WHEELER. Mr. President-- . The PRESIDING OFFICER (Mr. FESs in the chair).

Does the Senator from Maine yield to the Senator from Montana?

Mr. HALE. I yield. lfr. WHEELER. His articles, however, were used and cir

cularized by the water-power interests in Maine, were they not?

Mr. HALE. I think that may be true. Mr. WHEELER. And parts of them were used in adver

tisements by the power interests in connection with the fight, were they not? , .

Mr. HALE. I think that may have been done, and quite likely was done, but Mr. Smith had nothing to do with it. All he did was to write the articles and publish them. I think he testified that he was never request-ed by any waterpower interest to take any such action at all.

' Mr. WHEELER. That is true. :Mr. NORRIS. Mr. President--The PRESIDING OFFICER. Does the Senator from

Maine yield to the Senator from Nebraska? Mr. HALE. I yield. ltlr. NORRIS. Without any desire to enter into any con

troversy about the question which was at issue in Maine and which I think the Senator has stated correctly, I still want to ask the Senator if in that controversy it is not true that the power interests headed by Insull and influenced by the papers in Maine were all on the side of that fight upon which Mr." Smith was found? In other words, Mr. S~th was arguing there and campaigning on the side of the question with the same army, if we might call it such, that was headed by the power interests led by Samuel Insull.

Mr. HALE. In answer to the Senator's question I will say that so far as I know Mr. Insull at that time had. no interests of any kind whatever in Maine and did not in any way become connected with the Maine situation until three or four years afterwards.

Mr. NORRIS. The contest bas been going on in Maine for a good many years.

Mr. HALE. It has. Mr. NORRIS. And has been voted on several times.

The election to which I have reference is one that occurred in recent years, within a year, I believe.

Mr. HALE. That is the referendum? Mr. NORRIS. Yes.

Mr. HALE. Mr. Smith had nothing to do With it in any way.

Mr. NORRIS. And the same interests were involved in it. The power people were in favor of the repeal?

Mr. HALE. Yes; the power people were in favor of the repeal.

Mr. NORRIS. And the people vot.ed, as shown in every election in Maine, as opposed to the repeal. I do not wish the Senator to get any idea that I want to enter into any controversy as to the merits of the issue that is involved, but" I think it is fair to say that in every contest had over it in his State the power people on the one side were the people who wanted to repeal the law which prevent-ed them from taking the power outside the State. Those opposed to the power people were trying to retain the law. Mr. Smith was engaged on the same side of the controversy at least with those who favored a repeal of the law. That ought to be conceded, I think.

Mr. HALE. If the Senator will ~llow me to explain, I believe I can do so. The power interests in Maine at that time. were simply local power interests. They did want to export the power from the State, and many of the people of the State agreed with them. But the power people at that time had nothing to do with Mr. Insull or any of his. companies so far as I am aware. I never heard of his coming into the State until two or three years or possibly more after that time.

Mr. President, Mr. Smith is very well known to the people of Maine. We esteem him and look up to him as a faithful. public servant. We are proud of the record he has made here on the Geological Survey. I am surprised at the nature of some of the attacks which have been made to-day and yesterday upon him. They do not accord with my idea of the man in any way, shape, or manner. ·

The Senator from Arkansas [Mr. RoBINSON] stated yesterday that the statement had been made several times on the floor of the Senate that two faithful public servants were turned out of office or were not reappointed because they had been doing their duty. I know nothing about Mr. King or Mr. Russell. Until this controversy came up in the Senate I do not recall that I ~ver heard of either of these men. I do not know about the work that they have done. It may have been good work and it may not have been. I know very little about the work of Mr. Bonner. But, Mr. Presiden~. other people do know about the conditions which existed in the old Water Power Commission. The Interstate Commerce Committee of this body made a pretty careful investigation, . I understand, of conditions under the old Water Powel' Commission. On April 8, 1930, the able chairman of that committee, the senior Senator from Michigan [Mr. CoUZENS] filed a report when the bill was reported from that committee. I do not recall that any other, report or any mi.Iiority report was filed, so it is to be presumed that the Senator from Michigan represented the feeling of the committee. On page 2· of his report the Senator from Michigan stated:

Undoubtedly, when the Federal water power legislation was adopted, there was llttle realization of the problems a:nd work which would develop. The Power Commission was constituted of the Secretaries of Interior, War, and Agriculture, and an executive secretary was appointed to handle the details of the work. It is shown conclusively by the evidence presented that the Secretaries of the three departments have been so burdened with the tasks of their immediate departments that they have not. had the time necessary for the work of the commission. .

The net result of this situation is that practically all the work of the commission has devolved upon the executive secretary and regardless of what the causes of the present condition are, the facts are that the present conditions are very bad. Serious charges were made before your committee against the executive secretary by employees of the commission and counter charges were made by the executive secretary. No one can doubt after hearing the evidence that a lack of harmony exists within the commission and the work has suffered thereby. These charges have induced an atmosphere of suspicion until it has become imperative that Congress act to appoint a full-time commission which wlll have the opportunity and the authority to right t.he existing situation and to permit the carrying out of the water power act. Once the fulltime commission is appointed, responsibility can be placed upon its members and there can be .no reason for failure to act.

1931 CONGRESSIONAL RECORD-SENATE 1609-

Mr. President, I see nothing in that statement which instant case I lay down the proposition that when the Senimplies that Mr. Bonner was entirely at fault and that Mr. ate, on the 20th day of December, voted in the affirmative King and Mr. Russell were doing excellent work. The com- on the confirmation of George Otis Smith, it did so with mittee made no decision, one way or the other, as to which the understanding that any Senator who voted in the affirmside was at fault in the matter. · ative could, within two executive days thereafter, spread

Then, Mr. President, on page 3 the report goes on to say: upon the minutes of the Senate a motion to reconsider, and The committee feels that a competent and full-time staff that when that motion is spread upon the record, and a

should be organized for the work in Washington, and that this vote is had thereon, it reverts back in its effect to the origstaff, when organized, s~ould be pe~manently in the control of ~he inal vote of confirmation, so termed. Federal Power Commisswn. In this way the Power Commisswn 1 . • will have no difficulties with changing personnel in Washington, It has been urged here by Senatm:s that when the Senate, which might. result under another plan and which might invite on the 20th of December, voted in the affirmative, the a faulty organization suffering from the same disabilities that Presiding Officer announced that the nominee had been connow exist. firmed and that the President would be notified, and that

Mr. President, if that be not a mandate that the commis- thereby the Senate waived its right to reconsider the nomision shall have a house cleaning, it is certainly of that nation and absolutely foreclosed the matter in its entirety. nature. The RECORD discloses, on page 1261, that the President

The PRESIDING OFFICER. The question is on the mo- pro tempore of the Senate made this statement: tion submitted by the Senator from Montana [Mr. WALSH]. The Senate advises and consents to the nomination, and the

Mr. WALSH of Montana. Mr. President, I suggest the ab- President will be notified. sence of a quorum. What other announcement could have been made? That

The PRESIDING OFFICER. The clerk will call the roll. was simply a statement of fact. The Senate by that vote did The legislative clerk called the roll, and the following confirm George Otis Smith, subject, however, to the Sen-·

Senators answered to their names: ate's reconsidering that matter at any tirQ.e within two Ashurst Fess King Shortridge executive days. Barkley Fletcher La Follette Smith Bingham Frazier McGill smoot Mr. President, I submit that the President of the United Black George McKellar Steck States and every appointee claiming title through con-:~:;~: gi~:;t ~~~:~er ~~:~~~~s firmation of this body is charged with notice of the rules Borah Goff Metcalf swanson under which the Senate operates. The President of the Bratton Goldsborough Morrison Thomas, Idaho United States, as one of the other coordinate branches of :~~~~art ~~~d ~~:~~';;'k i~~~~~kla. this Government, when he deals with the Senate, deals with Broussard Harris Norris Trammell it with absolute notice-whether in fact or not, he deals with Bulkley Harrison N

0ydedie Tydings it with constructive notice-of the Senate's limitations. of Capper Hastings Vandenberg

caraway Hayden Partridge Walcott its powers, and of its rules. carey Hebert Phipps Walsh, Mass. What was the notification which the Senate gave? It was g~~~~~ ~~~11 ~~~an ;:i~~~~~nt. simply a notification as to what in fact did occur; and when Couzens Johnson Ransdell . Watson the President received that notice he was charged with g~:;ing ~e~~ :~~~~~~: ~~~: :i~~~:.Wn knowledge that the Senate, at any time within two days, navis Kendrick Sheppard might enter upon proceedings to reconsider that nomination. DUJ Keyes Shipstead Mr. President, the rules of the Senate provide that the

The PRESIDING OFFICER. Eighty-six Senators having President shall not be notified of a confirmation until the answered to their names, a quorum is present. expiration of the time within which the matter may be

Mr. CONNALLY. Mr. President, I do not indulge the hope reconsidered. Section 4 of Rule XXXVlli provides: that I shall be able to contribute any new argument with Nominations confirmed or rejected by the Senate shall not be reference to the pending motion to reconsider the nomina- returned by the Secretary to the President until the expiration of tion of George Otis Smith as a member of the Federal the time limited for making a motion to reconsider the same, or Power Commission. However, I do desire to place in the while a motion to reconsider is pending, unless otherwise ordered RECORD some of the reasons which actuate me to vote for by the Senate. the motion. That rule directs that the notification which the President

Transcending the question as to whether the particular pro tempore announced would be sent to the President nominees shall be authorized to hold the respective offices should not be sent to him until the expiration of the time to which they have been nominated is the question of the during which a motion to reconsider could be entertained. Senate preserving its prerogatives and its constitutional So what was the announcement of the Chair? The anpower over nominations. I have been rather surprised to nouncement of the Chair was that the President would be observe the seeming anxiety which some Senators exhibit notified. When? He would be notified when it was proper to surrender what I deem to be the prerogative of the Sen- to n:>tify him under the rules of the Senate; and that time ate to the executive branch of the Government. was at the expiration of the two days during whicL. a motion

I desire to submit certain propositions which, if challenged, to reconsider might be made. I shall be glad to have challenged when I make them. I V/hat is the notification to the President? The notificasubmit that under the Constitution the Senate has unre- tion to the President is not a duty that the Constitution servedly the power to confirm or reject nominations when places upon the Senate. That notice is a mere act of comity made by the President. An appointment which does not between the two branches of the Government. It is a mere receive such confirmation is not an appointment that will ad of courtesy which the Senate exercises in notifying the entitle the appointee to exercise the functions of his office. President of the progress of the nomination. He is notified

I submit, furthermore, that the special grant in the Con- that the Senate has voted, it is true, to confirm his apstitution to the Senate to make its own rules of procedure pointee; but he is not notified that the Senate may not endows the Senate with the power to determine the method within two days entertain a motion to reconsider. and the manner in which it will confirm or reject a nominee. Mr. President, it has been contended here that because

I further submit that when the Senate, in the exercise of that notice goes to the President the matter is then forethat power, lays down a method of procedure, if that method closed. Then why this rule of the Senate? Why the rule is a reasonable one, it then attains the same force and of the Senate which provides that in case a motion to reconpotency that the Constitution itself possesses. It is in pur- sider is made it shall be accompanied by another motion to suance of a constitutional grant, and when exercised it has request the President to return the nomination? Would not the force of the Constitution. such a rule be foolish, would it not be beside the question, if

I submit that the Senate, in providing that within two I in the contemplation of the Senate a vote of confirmation, days of executive sessions a motion to reconsider a nomina- a~d the sending of that notice to the President, cut off tion may be made, adopted a reasonable rule. So in the reconsideration?

(

1610 CONGRESSIONAL RECORD-SENATE JANUARY · 8 The rule of the Senate contemplates the very situation I certificate of authority under which he acts. The commis

with which we are confronted. It contemplates that the sian, however, confers no power whatever. It is a mere President may be notified of the confirmation prior to the paper evidence of the fact which it sets forth. two days during which a motion to reconsider may be made; These appointees are bound, just as the President is and out of respect to the President, as an act of comity, the bound, to take notice not alone of the Constitution but of rule requires that the Senate request the President to return the rules of the Senate. They are claiming title to these the nomination. But if the matter has been foreclosed and offices, and as such claimants they are chargeable with every the President can not or will not return the nomination, why link in the chain of title; and if confirmation is a necessary this rule? The Senate is presumed, in the adoption of that link in that chain of title, they are bound to take notice of rule, to have had within the scope of its view the very con- its regularity or its irregularity, and of every phase and tingency which now confronts the Senate. aspect of that title.

Mr. President, it is said that because no one objected at The Senator from West Virginia has laid down the propo-the moment when the President pro tempore made the an- sition that the rule of the Senate itself is unconstitutional. nouncement that the President would be notified; therefore Upon what the Senator bases that argument I am at a loss the matter is foreclosed. The rules of the Senate provide to understand, because the Constitution expressly grants that no Senator save one voting in the affirmative can make the Senate the right to make its rules and regulations. the motion to reconsider. A Senator voting in the negative, If these appointees are confirmed, they must be confirmed and who is opposed to confirmation, is not accorded the right by the Senate. If they are confirmed by the Senate, they of making that motion. Therefore, the philosophy under- must be confirmed in the method prescribed by the Senate. lying that rule presupposes that some Senator who is favor- What is that method? That method is laid down in the able to confirmation may change his mind. Otherwise there rules of the Senate, and those rules form an integral part would be no reason for limiting the motion to reconsider to of the process of confirmation. those voting in the affirmative. This is not a new principle. Every lawyer knows that it

In other words, that rule gives to every Senator when he runs all through the field of jurisprudence. A court renders votes "yea·" on a confirmation two further days in which to a judgment, notification of the rendition of the judgment is search for information, two further {fays in which to delib- carried to litigants and to attorneys and to the world through erate upon the question as to whether or not a man whose the public press and through announcement from the bench. name is before us should in fact be confirmed. The Senator But everyone knows that that judgment is not final, it is from Montana [Mr. WALSH] has exercised that right. It is not the last edict of the court, until the judgment becomes a wise rule. This is a deliberative body, in theory, at least. final under the rules· and the statutes prescribed for the It is a body which, in the making of the structure of govern- government of that court. So it is with reference to the ment, was intended to exercise certain checks on other de- Senate. Any action which the Senate takes may be reconpartments of the Government. No greater check upon the sidered, it may be vitiated, it may be erased, it may be Executive exists than the power of the Senate to visa his negated under the rules of the Senate, if those rules are appointments, and to say whether those appointments shall applied. be confirmed or whether they shall be rejected. To enter- The only exception that occurs to my mind would be a tain the view that some Senators have expressed that the rule which might be an unreasonable one. But certainly no mere fact that no objection was made on that vote notify- Senator will contend that the allowance of two executive ing the President forecloses the Senate is absolutely to sweep days after a vote in the Senate on confirmation is an unreaaway the specific rule of the Senate and to sweep away all sonable exercise of the power to make Senate rules. legislative policy and procedure relating thereto. It has been suggested that the President of the United

Mr. President, it is an established policy, not alone of the States will not return these nominations in case the Senate courts but of all legislative bodies, that the motion to recon- requests him to do so. I have no authority to speak on this sider, within certain limits and under certain regulations, is floor for the President of the United States, but I can not . fundamental. Of what did we notify the President? We conceive that the President would refuse the request of the notified him of what happened. We simply notified him of Senate when solemnly made with reference to a nomination the truth. We did not notify him of a falsehood. We notified which he has made. The President will certainly respect him that the Senate at that time had voted to confirm. We that comity and that cordial relationship which ought to did not notify him that we had abolished the rules of this subsist between the various branches of the Government body allowing us to reconsider within two days. vVe did not when their own prerogatives and their own powers are at notify him that we had by unanimous consent abrogated our issue. practfce and our procedure. The President will lose nothing of his power by returning

It is said that Mr. Smith and his associates, after the these nominations to the Senate. Even though they had President was advised that the Senate had confirmed them, been rejected in the first instance, the President would have took the oath of office and entered upon the discharge of the right and the power again to submit them to the Senate, their duties, and therefore that the Senate is without fur- and again and again, if he should see fit, and that has been ther power relating to their confirmation. done heretofore.

Let me call the attention of the Senate to the fact that Not by direct authorization, but simply by the impulses the Secretary of Labor, Mr. Doak, took the oath of office, of common sense and of fairness, I want to repel the inassumed its duties, and was supposed to have exercised sinuations of certain Senators on the other side who say them for several days, and then woke up to the fact· that that the President will not return these nominations if the his predecessor, now the junior Senator from Pennsylvania Senate so requests. £Mr. DAVIS] had not vacated the office of Secretary of If there is any reasonable doubt about the title of these Labor; and therefore Mr. Doak, while he thought he was men, the President would most certainly desire to have that Secretary of Labor, was not Secretary of Labor at all. Did question determined, and determined speedily. The Presihis taking the oath of office make him Secretary of Labor? dent would not care to have the legality of the acts of this Of course, for the oath of office to create any title to an commission brought into question in the courts at a later office in its claimant, it must be preceded by the right to date. Those men are his subordinates. They are subject to hold that office, an appointment by the President, and his removal at his will. They are his servants. I can not consubsequent confirmation by the Senate under the rules of ceive of his desire that they hold by any doubtful tenure. If the Senate and in accordance with the Senate's practice in they are to render the service he expects of them, he wants that regard. them firmly and satisfactorily seated in their places in order

.As has been so well pointed out in an able and exhaustive that their acts may be legal, and may be beyond the question argument by the Senator from New Mexico [Mr. BRATTON], of this body or of the courts. a commission is no more than a certificate that the holder It is said that we can not reconsider these nominations of that certificate is what he purports to be. It is simply a on account of something which transpired after the vote

1931 CONGRESSIONAL RECORD-SENATE 1611 in the sez:ate. I submit that that is the very basis of the office, does he not? He has no title to it, because his assumpprovision for a reconsideration of the question. If only tion of the office was contingent upon a future event-that Senators who vote in the affirmative may move to recon- is; future confirmation by the Senate. sider, the presumption is that something is going to occur, When these gentlemen took the oath of office, when they some Senator is going to acquire new information, some act received their commissions from the President, when they which theretofore has been concealed or has not come to assumed the duties of office, they did so contingent upon a the Ja1owledge of a Senator will impel him to rise in his happening, and that contingency was that no one in the place and say, "I was mistaken in my vote in favor of con- Senate within two days after the vote of the Senate should firmation. Certain knowledge has come to me since my make a motion to reconsider. vote, and I now desire to vote to reconsider the nomination." Of com·se, when confirmation is finally made, if it is

. Suppose these commissioners had not discharged these ever made, it reverts to the original of the appointment employees, but suppose some Senator had learned of their by the President, and if no motion to reconsider had been plan to do so. Would not that have been a pertinent reason made within the two days, at the expiration of that time impelling a Senator to rise in his place and make a motion the Senate would have notified the President of its action, for reconsideration? and these gentlemen would have lawfully been entitled to

Summarizing, Mr. President, I submit that the Constitu- their offices. tion vests in the Senate the absolute power to confirm or to With this view, Mr: President, I submit that the Senate reject. I submit that the Constitution gives this body the will be doing violence to its own prestige, it will be surrenright to prescribe its own rules, and that the Senate, in the dering some of its prerogatives and its power over confirmaexercise of that constitutional power, did prescribe its rules. tions, if it takes the position that it has no right to reconone of which is that a motion to reconsider may be made sider these nominations. within two days, and the other rule, which requires one Of much greater importance than the personalities of voting in the afli.Imative to make the motion, presupposes these candidates, of far more consequence han the disthat the Senate expects, if need be, that some Senator will charge of three faithful employees, is the importance of the change his mind. Senate maintaining its right to control confirmations.

I submit furthermore that the President, these appointees, There was a reason why the makers of the Constitution inand the entire world when dealing with the Senate do so vested this body with that power. There was in the minds with constructive notice of every Senate rule, every portion of the makers of the Constitution a danger, as they reof the Constitution, and every legal provision which relates garded it, in the power of the Executive, through appointto the Senate and to its procedure. Otherwise we could ments, through arrogating to himself power which the Conhave no proper method of procedure. Just as every indi- stitution never intended, to build up a tyranny and to asvidual is presumed to know the law whether he knows it or sume autocratic power. So when we are exercising our whether he does not, so everyone dealing with the Senate rights to confirm or reject, we are not indulging the mere or dealing with a right which he claims to have derived fancies of ourselves as individuals, we are discharging a from the Senate must take notice of the Senate's rules and of solemn obligation imposed upon the Senate by the organic its procedure. law, and we shall be yielding one of our prerogatives if we

I intend no criticism of the Secretary of the Senate, but I surrender that power, if we have not the courage to assert submit that under the rule of the Senate which I quoted a it, if we have not the hardihood to say to the Executive, little while ago the nominations should not have gone to the "Mr. President, we still have jurisdiction over this matter, President until after the expiration of the two days. That is and until the Senate shall have finally, in its deliberations, an express rule of the Senate. Nowhere in the RECORD is determined the question, we respectfully request that the there the announcement of any request for unanimous con- President return those nominations to the Senate." sent to set aside the rule; nowhere is there a vote of two- Contrast the spectacle that is presented here. On the thirds of the Senate abrogating either of these rules. one hand are senators anxious to surrender their preroga-

What is the rule? It is that the President be notified- tives, and on the other hand are Senators asserting that not to-night, not to-morrow, but that the President be noti- the President is going to maintain his power and contend fied under the rules of the Senate. The rules of the Senate for more, is going to say to the Senate, "I shall not retwn provide that he shall not be notified until the time for mak- the nominations because technically I believe that the Sening a motion to reconsider shall have expired. ate has foreclosed its right to act further." If the Executive

Of what is the President notified? He is notified of what power maintains that attitude and the senate of the United the RECORD contains, he is notified that the Senate on Satur- states maintains an attitude of timidity, of hesitancy to day night, the 20th of December, voted in the affirmative to maintain its prerogatives, we can readily perceive how well confirm George Otis Smith, which required no notice from grounded was the fear of the fathers when they looked forthis body. Th'e President could have picked up the CoN- ward to the time that it would be necessary for the Senate GRESSIONAL RECORD on the following day, and he would have to hold a check on the power of the Executive. had just as much authority to act upon that RECORD as he Mr. President, I submit that the Senate has unquestiondid upon the notice which was sent by the Secretary of the ably the right to reconsider these nominations, that they Senate. ought to be reconsidered, that the Senate owes to its own

Of what was he notified? He was simply notified of what prestige and to its own prerogatives and to its own duty to took place. He was notified of no more than what took the people that the nominations should be reconsidered. place. Would a Senator have been precluded from making a Mr. McNARY. Mr. President, I am pleased to assume that motion within two days if there had been no notification most of the Senators who desire to speak on this subject made to the President? No one will so contend. No Senator t th t nrill be so bold as to contend that if the notice had not been have done so, and therefore I ask unanimous consen a "' on and after 3 o'clock to-morrow afternoon speeches be sent to the President, and those nominations had remained limited to 15 minutes. here, a Senator could not have made the motion. The PRESIDING OFFICER. Is there objection to the

If that be true, how does the mere sending of the notice request of the Senator from Oregon? destroy that right of a Senator, a mere notice that the Sen- Mr. WALSH of Montana. Mr. President, I regret having ate has in fact voted in the affirmative, with the express reservation in the rules of the senate that that action is not to object to the request of the Senator. I had the hope final, that it is contingent upon the failure of some Senator and expectation of being able to reach a vote to-day upon to make the motion within two days for reconsideration. the pending matter, but there are still a number of Senators

Mr President when we have a recess appointment the who desire to speak, and it seems to me to be rather unfair man is appointed, he takes the oath of office, he enters ~pon to th~m ~o submit to the request of, th~ Sen~tor f~om ~n;,.gon his duties, and the President issues him a commission; but at this time. I hope another days discussion Will brmo us when the Senate meets, unless he is confirmed before the I to a vote on the matter. Tro • . •

expiration of that session of the Senate, he vacates his The PRESIDING OFF _ ..... ER. ObJectiOn IS heard.

1612 . CONGRESSIONAL "RECORD-SENATE JANUARY ·g .

. Mr. HEFLIN. Mr. President, the matter which has been discussed here all this week is, I agree, important. The Senate has a right, of course, to reconsider a vote had in executive session within the .time prescribed by its rule. But I submit to the Senate that the procedure we have had here in considering this matter during the daytime, when important and urgent legislative matters are being held up, is unfair and inexcusable. I do not recall that I ever saw before just this procedure in the Senate where four legislative days were consumed in considering matters that belong purely to an executive session. Mr. President, the situation here and in the country is too serious for the Senate to permit much needed relief legislation to be held up and postponed.

I submit to the Senate that on to-morrow morning we ought to take up the work of legislation and let this executive matter go over for consideration to-morrow night and the next night and so on until all the constitutional lawyers in the Senate have discussed it to their hearts' content. Bless their sober-shrouded souls. [Laughter.] I have seen them smite the rock of the Constitution with the rod of their proud legal attainments, and each and every time they smote it torrents of convincing argument leaped forth and fell upon every Senator. [Laughter.] ·

Inasmuch • as the people of the Nation could not be here in person, it was the duty of other Senators to take their punishment in the name of those who sent them here. [Laughter.] See, Mr. President, how excited are the people in the gallery and yet how silent they sit with closed eyes and nodding heads flaughterJ, while all seven of the Senators present are eagerly and anxiously listening to every word uttered in this exciting and peculiarly fascinating debate. [Laughter.]

Now, I submit, Mr. President, that while starvation threatens hundreds of thousands of people in America, this body ought to. be engaged in getting the truth of conditions to the President and the country, and especially in educating the House upon the importance of granting relief to suffering Americans. The relief measure which this body passed four or five days ago is still unacted upon in the House. There are two methods of procedure by which action may be had upon that measure in that hamstrung institution. One is by a suspension of the rules, and the other is by obtaining a rule for its immediate consideration from the House Committee on Rules. I have not seen any motion on the part of anybody toward doing either one of those things.

And here we are, going on day after day with three or four long speeches each day, when all that is involved in the question could be stated in 30 minutes by the Senate clock. But I repeat I enjoy hearing these able speeches. Oh, how they entertained and thrilled me when I first heard them. One constitutional lawyer gets to his feet and begins to discuss these very grave and important constitutional questions, he sets in motion the legal machinery in the head of every other constitutional lawyer, and each one of them feels that he should make it known that he is just as competent to discuss constitutional questions as he who speaks, and here they go, back and forth and round and round. [Laughter.] One Senator gets the floor and flashes forth a scintillating idea to another Senator, and then the other Senator straightway arises to his feet.

He sees the point being developed by the other able Senator who is speaking, as was the case with my good friend the Senator from New Mexico [Mr. BRATTON] this morning, and ideas begin to sprout in his mind; and lo, before the speaker is allowed to develop the idea which he had in mind, after fighting through a wilderness of fog and mist to reach his point, the other Senator-superb constitutional lawyerjumps up and snatches it away from him as he says, " I want to suggest to the Senator this idea," when the first Senat-or has just suggested the idea to him. [Laughter.]

Mr. President, I am a very patient man, but this situation is at last getting on my nerves. [Laughter.] And still I love these constitutional arguments. I really do enthuse over them. [Laughter.] I do not believe that the country really appreciates just what is going on here. There ought

to be some way to get these great constitutional arguments to the country."' Just think of what the country has missed during the last four days. [Laughter.]

Why not, Mr. President, put a nidiobroadcasting device in this Chamber? Millions of people outside would sit spellbound as they listened throughout the long, long days to these marvelous and matchless arguments. [Laugliter.] How the children would throw down their toys and come in from play and sit entranced and listen. [Laughter.]

Mr. President, I want to give notice that I am going to insist to-morrow that we proceed with our legislative business during the day and attend to this matter belonging to the executive session to-morrow night and the next night. Have any votes been changed by all this discussion? I fear that the final vote will be just like it was on the original question of confirming these men.

But I want to say to my constitutional lawyer friends that I would not infringe upon their right to stand here and speak on constitutional questions, but I want them to speak at night.

I would not deprive them of the joy, of the extreme delight, that they get out of their speeches; but I want something done for the men, women, and children of the Nation who are this day in great distress. Yesterday when the Senator from Arkansas [Mr. RoBINSON] painted a most pitiful picture of conditions in his State, and in the South, a Member of the House from New York, Mr. HAMILTON FisH, was giving out a statement to the effect that he had information that the uprisings in Arkansas and the clamor amongst the people was being produced by the communists. That is the situation we have presented to us while men and women out in the States of the Nation are in dire distress.

Mr. President, the Senator from South Carolina [Mr. S:rviiTH] on yesterday told us about how the homes and farms of the people are being sold under mortgage, how they are compelled to move away not knowing where to go and having nothing upon which they can live. Millions of people are in distress.

The drought has brought ruin to many sections; floods have brought disaster to other sections; a bad economic situation exists over the entire country; and yet we are told by those who in disguise are spreading red propaganda for the purposes of using it in the presidential campaign of 1932 that the communists are even back of the widespread deniand for food. I know what is back of such statements, and I am going to discuss that question one of these days. Have Senators read a book called" The Red Napoleon," by Floyd Gibbons, setting forth how AI Smith was going to make mincemeat of all the " reds " after 1932? And, oh, how HAMILTON FisH must enjoy his part in the fascinating drama.

Let us do something for the people whose Government this is. I submit to Senators in all seriousness that when the light of day has gone, when we have finished with our legislative efforts to secure relief for the people in distress the country over, we can sit here at night and listen to Senators discuss whether we have the constitutional right to withdraw the confirmation of an appointee to the Power Commission or whether the President has the power to keep him in office when the Senate wants to withdraw him. I submit that that is not as important to the people of America, as important as it is-and it is important-as the question of relieving distress among suffering Americans.

Mr. President, there are many people in this Nation who are desperate. I wish to read what one of the brightest thinkers of the country says. I am not going to give his name, but to a very well-known citizen he wrote a letter, the last sentence of which I will quote:

I do not have any. confidence in your committee--

He was talking about a committee in Congress-or anything they can do. The time for talking and legislating has passed; we must now stand aside and listen to the thunder of events.

MT. President, I recall a poem-! can not quote it accurately-which describes a hungry tiger pursuing his prey

1931 CONGRESSIONAL RECORD-SENATE 1613 amid dangers and perils. When the tiger was ready to leap Sciences, transmitting, pursuant to law, his annual report. upon his prey the poet describes how he looked, how deter- for the fiscal year ended June 30, 1930, which, with the acmined, how daring, and he tells how- companying report, was referred to the Committee on the

The tiger crouches to leap upon his prey

And he then tells us that-A fiercer tiger crouches in a starving man at bay.

Mr. ·President, my heart goes out to the people of this Nation who are in distress; and when I hear Members of another body saying, "Oh, well, it amounts to nothing; it is just an uprising caused by the communists," I am indignant and I deny it. Those who are in distress are upstanding, fine American citizens. They will almost starve before they will beg. Two examples of that spirit will be recalled from an incident occurring within this city in the last two months. Two young men walked the streets of the Capital of the Nation asking for work, seeking employment, until exhausted from hunger they fell in a Washington park. When they were taken to the hospital both of them said they had not eaten for three or four days. Why had they gone hungry for that long period? It was because of pride-American pride. American citizens are so proud they will not beg until the wolf of starvation stands howling at their door. In the United States to-day people who are suffering are crying out not to. be fed by charity, but they are asking the Government, whose life they fight to save in time of war, to loan them money in order that they may live, and they will pay it back. That is what they are doing in Arkansas and in other States.

The Senator from Arkansas told us of an instance where many fam.ilies were living in a large schoolroom-10 or 15 families huddled together there. Perhaps, Mr. President, some people can not understand a situation of that kind. Let me tell you how it is. The farmer from whom they rented land in 1930 is .broke and he can not supply them with the necessaries of life. With the winter months coming on their contracts with him for the year 1930 have expired. Even if they had remained on his farm they have nothing to live on. \Vhy have they gone into the town? They are seeking something to eat, and in Arkansas and other places they are being helped to some extent.

The Red Cross is doing a little, but very little. It is not able to do enough. So there are numbers of families in Arkansas all crowded together in 1-room school buildings, in the land over which floats the Stars and Stripes, while the body at the other end of the Capit.ol sits silent, with hands folded in supine lethargy, doing nothing to relieve the situation. And from New York, where the stock exchange-a giant evil-is robbing a hundred million people, comes the cry from one of its Representatives in Congress, "There is nothing to it; the communists have inspired these movements."

Mr. President, that is not the way to encourage the spirit of patriotism; that is not the way to build up a sturdy and a loyal people. When people are robbed of their morale, when they have their substance taken from them-I do not care how it is done-when the head of a household is left empty handed and he hears nothing day after day but the cries of his wife and children for bread, and he ean not give it to them, the result is to make a desperate citizen of him. This Government is too big and great to do anything like that.

I want to see the Senate and every Member of it get busy and start something to let the body at the other end of the Capitol know that no measm·e coming from there will be passed until the suffering people of the States shall have been relieved. The Congress can do it, the Congress must do it, and Congress shall do it.

EXECUTIVE :PYIESSAGES

Messages in writing from the President of the United States, submitting nominations, were communicated to the Senate by Mr. Latta, one of his secretaries.

As in legislative session,

Library. JUDGMENTS RENDERED BY THE COURT OF CLAIMS (S. DOC. NO. 244)

The VICE PRESIDENT laid before the Senate a communication from the President of the United States, transmitting, in compliance with law, a list of judgments rendered by the Court of Claims and requiring an appropriation in the total amount of $2,519,805.26 for their payment, which, with the accompanying papers, was referred to the Committee on Appropriations and ordered to be printed. JUDGMENT OF THE COURT OF CLAIMS-WILLIAM S. SHACKLETTE

(S . . DOC. NO. 245)

The VICE PRESIDENT laid before the Senate a communication from th~ President of the United States, transmitting, in compliance with law, record of a judgment rendered by the Court of Claims, under the NavY Department, and requiring an appropriation in the amount of $2,866.35 for its payment, which, with the accompanying papers, was referred to the Committee on Appropriations and ordered to be printed. CLAIM ALLOWED BY GENERAL ACCOUNTING OFFICE-DAVID HAL

STEAD, RECEIVER OF AMERICAN MANGANESE MANUFACTURING CO. (S. DOC. NO. 246)

The VICE PRESIDENT laid before the Senate a communication from the President of the United States, transmitting, in compliance with law, a schedule covering a certain claim allowed by the General Accounting Office in the sum of $29,365.40, which, with the accompanying papers, was referred to the Committee on Appropriations and ordered to be printed. JUDGMENTS AGAINST THE GOVERNMENT BY UNITED STATES DISTRICT

COURTS (S. DOC. NO. 241)

The VICE PRESIDENT laid before the Senate a communication from the President of the United States, transmitting, pursuant to law, records of judgments rendered against the Government by United States district courts in the total amount of $9,996.79, which, with the accompanying papers, was refeiTed to the Committee on Appropriations and ordered to be printed. DAMAGE CLAIM ARISING FROM COLLISION WITH NAVAL VESSEL

(S. DOC. NO. 242)

The VICE PRESIDENT laid before the Senate a communication from the President of the United States, transmitting, pursuant to law, an estimate of appropriation submitted by the Navy Department to pay a claim for damages arising by collision with a naval vessel in the sum of $1,388.93, which, with the accompanying papers, was referred to the Committee on Appropriations and ordered to be printed. CLAIMS FOR DAMAGES TO PRIVATELY OWNED PROPERTY (S. DOC.

NO. 243)

The VICE PRESIDENT laid before the Senate a communication from the President of the United States, transmitting estimates of appropriations submitted by the several executive departments to pay claims for damages to privately owned property in the sum of $1,500.33, which have been considered and adjusted under the provisions of the act of December 28, 1922 (U. S. C., title 31, sec. 215), which, with the accompanying papers, was referred to the Committee on Appropriations and ordered to be printed. CLAIMS ALLOWED BY GENERAL ACCOUNTING OFFICE (S. DOC. NO.

247)

The VICE PRESIDENT laid before the Senate a communication from the President of the United States, transmitting, in compliance with law, schedules of claims amounting to $46,120.19, allowed by the General Accounting Office as covered by certificates of settlement, etc., which, with the accompanying papers, was referred to the Com. mittee on Appropriations and ordered to be printed.

PETITIONS AND MEMORIALS

As in legislative session, REPORT OF THE NATIONAL ACADEMY OF SCIENCES Mr. CAPPER presented a petition numerously signed by

The VICE PRESIDENT laid before the Senate a communi- sundry World War veterans residing in Bourbon County, cation from the president of the National Academy of Kans., praying for the passage of legislation providing for

1614 CONGRESSIONAL RECORD-SENATE JANUARY 8 the immediate payment of ex-service men, which was Finance.

adjusted-service certificates of papers for and· 265 against.1,he former representing approxi~ately referred to the Committee on 30,000,000 in circulation and the latter 10,500,000.

Very truly yours,

Mr. COPELAND presented petitions of sundry citizens of Brooklyn, N. Y., praying for the passage of legislation for the exemption of dogs from vivisection in the District of Columbia, which were referred to the Committee on the District of Columbia.

Mr. JONES presented petitions numerously signed by sundry citizens of the State of Washington, praying for the passage of legislation for the exemption of dogs from vivisection in the District of Columbia, which were referred to the Committee on the District of Columbia.

He also presented resolutions adopted by the Washington Humane Education and Antivivisection Society (Inc.), of Spokane, and the Snohomish County Humane Education Society, both in the State of Washington, favoring the passage of legislation for the exemption of dogs from vivisection in the District of Columbia, which were referred to the Committee on the District of Columbia.

He also presented a resolution adopted by the Daughters of the American Revolution, of Bellingham, Wash., favoring the passage of legislation for the Federal supervision of motion pictures, which was referred to the Con:imittee on Interstate Commerce.

He also presented a memorial of sundry citizens of the State of Washington, remonstrating against 1·atification by the United States of the World Court protocol, which was referred to the Committee on Foreign Relations.

He also presented resolutions adopted by the port commissions of the ports of Tacoma and Port Angeles, both in the State of Washington, protesting against the importation of Russian pulpwood and lumber in the United States, which were referred to the Committee on Finance.

He also presented resolutions of" the Pomeroy Commercial Club, of Pomeroy, Wash., favoring the passage of legislation stabilizing the price of agricultural commodities, which were refen-ed to the Committee on Agriculture and Forestry.

He also presented a resolution adopted by the Frank H. Hancock Post No. 92, Department of Washington, of Stanwood, Wash., favoring the immediate payment of the adjusted-compensation certificates of ex-service men, which was referred to the Committee on Finance.

He also presented communications in the nature of petitions from aeries of the Fraternal Order of Eagles, of Omak, Wilkeson, Longview, Anacortes, Concrete, Chehalis, Centralia, and Olympia. all in the State of Washington, praying for the adoption of the so-called Eagles' plan for the stabilization of employment and the establishment of a . Federal industrial commission, which were referred to the Committee on Education and Labor.

Mr. ROBINSON of A.l·kansas presented a paper to .accompany the bill (S. 5389) to authorize the Secretary of Agriculture to carry on agricultural-extension work within drought areas where counties are unable to make contribution, heretofore introduced by him, which was referred to the Committee on Agriculture and Forestry.

EDITORIAL OPINION ON THE WORLD COURT

Mr. PIDPPS. Mr. President, I send to the desk a letter in the form of a petition, which I desire to have printed in the RECORD and referred to the Committee on Foreign Relations.

There being no objection, the letter was referred to the Committee on Foreign Relations and ordered to be printed in the RECORD, as follows:

DENVER, CoLO., December 13, 1930. Bon. LAWRENCE C. PHIPPS,

Senate Office Building, Washington, D. C.

RE WORLD COURT

MY DEAR SENATOR PaiPPs: As chairman of the Colorado World Court Committee I should be glad, indeed, providing you approve, if you would read into the CoNGRESSIONAL RECORD the result of the recent survey of editorial opinion in Colorado on adherence to the World Court on the bas!s of the present protocols. You will note that the opinion expressed is overwhelming in favor of adherence, there being 22 papers for and only 1 against.

I have always appreciated your own favorable attitude toward the court. The survey all over the country shows there is no question about public opinion being in its support, there being 1,357

L. WARD BAN~ISTER. REPORTS OF CO~TTEES

As in legislative session, Mr. WALSH of Massachusetts, from the Committee on

Naval Affairs, to which were referred the following bills, reported them each without amendment and submitted reports thereon :

S. 351. An act for the relief of John Donahue (Rept. No. 1251); and

S. 2753. An act for the re.lief of Edward Brooks (Rept. No. 1252). ·

Mr. METCALF, from the Committee on Naval Affairs to which was refen-ed the bill <S. 3929) for the relief of Ja~es J. Lindsay, reported it without amendment and submitted a report <No. 1253) thereon.

M_r. KEAN, from the Committee on Naval Affairs to which were referred the following bills, reported them ~everally without amendment and submitted reports thereon:

H. R. 4159.- An act for the relief of Harry P. Lewis CRept. No. 1254);

H. R. 8665. An act for the relief of William A. Quigley <Rept. No. 1255);

H. R. 11022. An act for the relief of Sterrit Keefe <Rept. No. 1256) ; and

H. R.11297. An act for the relief of Arthur Edward Blanchard <Rept. No. 1257).

Mr. VANDENBERG, from the Committee on Commerce to which was referred the bill (S. 4815) authorizing a pre~ liminary examination and survey of the Crooked and Indian Rivers, Mich., reported it without amendment and submitted a report (No. 1258) thereon.

Mr. JOHNSON, from the Committee on Commerce, to which was referred the bill (H. R. 11201) to authorize a preliminary examination of the Fox River, Wis., for the purpose of flood control, reported it without amendment and submitted a report (No. 1259) thereon.

BILLS INTRODUCED As in legislative session, Bills were introduced, read the first time, and, by unani

mous consent, the second time, and referred as follows: By Mr. KENDRICK: A bill (S. 5588) to add certain public lands to the Washa

kie National Forest, Wyo.; to the Committee on Public Lands and Surveys. ·

By Mr. FESS: A bill (S. 5589) to amend the radio act of 1927 as

arp.ended; to the Committee on Interstate Commerce. By Mr. K.EAN: . A bill <S. 5590) to establish the Sandy Hook National

Park in the State of New Jersey; to the Committee on Military Affairs.

A bill <S. 5591) granting ·a pension to Elizabeth M. Clark (with accompanying papers); to the Committee on Pensions.

By Mr. BROOKHART: A bill (S. 5592) granting a pension to Libbie Seals <with

accompanying papers); to the Committee on Pensions. By Mr. WILLIAMSON: A bill (S. 5595) granting an increase of pension to Mary

E. Davis <with accompanying papers); and A bill (S. 5596) granting an increase of pension to Nancy

C. Kays <with accompanying papers); to the Committee on Pensions.

By Mr. ROBINSON of Indiana: A bill (S. 5597) to amend section 200 of the World \Var

veterans' act, 1924, as amended; to the Committee on Finance.

A bill (S. 5598) granting a pension to Samuel E. Brown <with accompanying papers) ;

A bill <S. 5599) granting an increase of pension to Nancy J. Hash <with accompanying papers);

A bill (S. 5600) granting a pension to Lee Jordon <with accompanying papers);

A bill <S. 5601) granting an increase of pension to Louisa Livingston <with accompanying papers) ; and

1931 CONGRESSIONAL RECORD-SENATE 1615 . A bill (S. 5602) granting an increase of pension to Elizabeth Reed (with accompanying papers>; to the Committee on Pensions.

By Mr. JOHNSON: A bill (S. 5603) for the relief of Henry Bartels; to the

Committee on Military Affairs. A bill <S. 5604) to safeguard the validity of permits to use

national-forest lands; to the Committee on Agriculture and Forestry.

By Mr. COPELAND: A bill <S. 5605) for the relief of Louis Godick; to the Com

mittee on Claims. A bill (S. 5606) granting a pension to Victoria Kessel; and A bill (S. 5607) granting a pension to Rose M. Schaeffer;

to the Committee on Pensions. · • A bill (S. 5608) to increase the emciency of the medical

department of the Regular Army; to the Committee on Military Affairs.

By Mr. JONES. A bill <S. 5609) granting an increase of pension to Susie

M. Gilbert <with accompanying papers) ; and A bill (S. 5610) granting a pension to Catherine A. Tipson

(with accompanying papers); to the Committee on Pensions. RAILROAD CONSOLIDATIONS

As in legislative session, Mr. BROOKHART. I desire to introduce two bills for

reference to the Committee on Interstate Commerce. In connection with their introduction, I wish to say that I have placed on the wall of the Senate Chamber three charts, two being on one paper, and the other a separate one. They give a picture of American business for 50 years. That picture shows that we have 1>een in major depressions eight different times during 50 years, which is practically half the time. The principal chart shows the trend of stock values, and an analysis of it will show that speculation in stocks is perhaps the greatest cause of the depressions which have existed for practically half the time in this country. It also shows that since the deflation of stocks in the panic of last year we are still 208 per cent above 1914; in other words, we are still on a volcano.

Now we have coming a gigantic stock-jobbing railroad merger to sustain this volcano and bubble, on which there can be built up a bigger one, so that there will follow in due time another one of these explosions. Therefore I offer the two bills, one to stop consolidations, except of roads extending from coast to coast, and the other directing the Interstate Commerce Commission to acquire a line of railroad from coast to coast and, by proper competition, to stop these bubbles of stock speculation.

The VICE PRESIDENT. The bills will be received and appropriately referred. ·

The bill <S. 5593) to amend section 5 of the interstate commerce act, as amended; and

The bill (S. 5594) to authorize the Interstate Commerce Commission to acquire a coast-to-coast railroad system, to provide for the operation of such system, and· for other purposes, wer~ each read twice by their titles and referred to the Committee on Interstate Commerce.

CHANGE OF REFERENCE

As in legislative session, On motion of Mr. SHORTRIDGE} the Committee on Military

Affairs was discharged from the further consideration of the bill <S. 5520) for the relief of Alexander M. Simons, and it was referred to the Committee on Claims.

As in legislative session, AMENDMENT TO WAR DEPARTMENT APPROPRIATION BILL

Mr. SMOOT submitted an amendment intended to be proposed by him to House bill 15593, the War Department appropriation bill, which was referred to the Committee on Appropriations and ordered. to be printed, as follows:

At the proper place in the bill insert the following: " Extension of water system at Fort Douglas, Utah: For extend

ing the water system at Fort Douglas, Utah, including the installation of plumbing and facilities for the disposal of ·sewage, and other expenses incident to such extension, $60,000."

AMENDMENTS TO AGRICULTURA.L DEPARTMENT APPROPRIATION BILL

Mr. THOMAS of Idaho submitted amendments intended to be proposed by him to House bill 15256, the Agricultural Department appropriation bill, which were referred to the Committee on Appropriations and ordered to b~ printed, as follows:

On page 32, line 19, strike out "$456,000" and insert in lieu thereof "$536,900, of which $80,900 shall be immediately avail-· able."

On page 42, line 13, strike out "$1,509,546" and insert in lieu thereof "$1,714,546."

On page 43, line 17, strike out "$7,289,240" and insert in lieu thereof "$7,494,240."

AMENDMENT TO DEFICIENCY APPROPRIATION BILL

Mr. MORRISON submitted an amendment intended to be proposed by him to House bill 15592, the first deficiency appropriation bill, 1931, which was referred to the Committee on Appropriations and ordered to be printed, as follows:

At the proper place in the bill insert the following: "For the construction of a road leading from the State highway

between Kitty Hawk and Nags Head, N. C., to the Wright Me.., moria! Reservation, and for such roads within said reservation as may be necessary, $25,000."

AMENDMENT TO LEGISLATIVE APPROPRIATION BILL

Mr. FESS submitted an amendment intended to be proposed by him to the legislative appropriation bill, fiscal year 1932, which was referred to the Committee on Appropriations and ordered to be printed, as follows:

At the proper place in the bill to insert: "To enable the Joint Committee on the Library to procure for

the court room of the Supreme Court of the United States a marble bust, with bracket or pedestal, of the late Chief Justice William Howard Taft, $3,000."

GRADING OF CLERKS IN THE FOREIGN SERVICE

Mr. COPELAND submitted an amendment intended to be proposed by him to the bill (H. R. 9110) for the grading and classification of clerks in the Foreign Service of the United States of America, and providing compensation therefor, which was referred to the Committee on Foreign Relations and ordered to be printed.

HOUSE BILLS AND JOINT RESOLUTION REFERRED

As in legislative session, • The following bills and joint resolution were severally

read twice by their titles and referred as indicated below: H. R.15592. An act making appropriations to supply ur

gent deficiencies in certain appropriations for the fiscal year ending June 30, 1931, and for prior fiscal years, to provide urgent supplemental appropriations for the fiscal year ending June 30, 1931, and for other purposes; to the Committee on Appropriations.

H. R. 8568. An act to compensate the Post Office Department for the extra work caused by the payment of money orders at offices other than those on which the orders are drawn; and

H. ,~:Res. 357. Joint resolution classifying certain omcial mail matter; to the Committee on Post Offices and Post Roads.

ADDITIONAL RECEIPTS OR CERTIFICATES OF MAILING

As in legislative session, The PRESIDING OFFICER (Mr. FEss in the chair) laid

before the Senate the amendments of the House of Representatives to the bill (S. 3273) to authorize the Postmaster General to issue additional receipts or certificates of m~iling to senders of any class of mail matter and to fix the fees chargeable therefor, which were to strike out all after the enacting clause and insert:

That the Postmaster General is authorized to charge a fee, under such regulations as he may .Prescribe, for the issuance to the sender of ordinary mail, and of registered, insured, and collect-C'n-delivery mail , a receipt or certificate showing such mailing.

And to q.mend the title so as to read: "An act to authorize the Postmaster General to issue additional receipts or certificates of mailing to senders of certain classes of mail matter and to fix the fees chargeable there~or."

• I

1616 CONGRESSIONAL RECORD-SENATE JANUARY .8 Mr. PHIPPS. I desire to state that the change made by

the House is one in language only and does not affect the intent and purpose of the bill.' I therefore move that the Senate agree to the amendments of the House.

The motion was agreed to. EXECUTIVE MESSAGES REFERRED

The PRESIDING OFFICER laid before the Senate messages from the President of the United States, submitting sundry nominations, which were referred to the appropriate committees.

RECESS

MI. McNARY. As in executive session, I move that the Senate take a recess until to-morrow at 12 o'clock noon.

The motion was agreed to; and (at 5 o'clock and 22 minutes p. m.) the Senate, in executive session, took a recess until to-morrow, Friday, January 9, 1931, at 12 o'clock meridian.

NOMINATIONS Executive nominations received by the Senate January 8

(legislative day of January 5), 1931

UNITED STATES DISTRICT JUDGE

Harry A. Hollzer, of California, to be United states district judge, southern district of California. <Additional position.>

UNITED STATES CmCUIT JUDGE

William H. Sawtelle, of Arizona, to be United States circuit judge, ninth circuit, to succeed Frank S. Dietrich, deceased.

APPOINTMENTS IN T~E ARMY

MEDICAL ADMINISTRATIVE CORPS

To be second lieutenants Staff Sergt. Louis Felix Williams, Medical Department,

with rank from January 1, 1931. Sergt. Frank Randle Day, Medical Department, with rank

from January 1, 1931. Sergt. William Joseph Hem·y, Medical Department, with

rank from January 1, 1931. APPOINTMENT, BY TRANSFER, IN THE ARMY

TO CORPS OF ENGINEERS

Second Lieut. Henry Joseph Hoe:ffer, Coast Artillery Corps, with rank from June 14, 1927, effective April 4, 1931.

PROMOTIONS IN THE ARMY

To be colonels Lieut. Col. Horace Fennell Sykes, Adjutant General's

Department, from January 1, 1931. Lieut. Col. Oliver Prescott Robinson, Infantry, from

January 1, 1931. · Lieut. Col. William Ernest Persons, Infantry, from January

1, 1931. Lieut. Col. Henry Cfay Miller Supplee, Infantry, from

January 1, 1931. Lieut. Col. William Kern Moore, Field Artillery, from

January 1, 1931. Lieut. Col. David Yulee Beckham, Adjutant General's

Department, from January 1, 1931. Lieut. Col. John Overton Steger, Adjutant General's

Department , from January 4, 1931. To be lieutenant colonels

Maj. William Jackson McCaughey, Infantry, from January 1, 1931.

Maj. Eugene Ross Householder, Adjutant General's Department, from January 1, 1931.

Maj. Eugene Santschi, jr., Infantry, from January 1, 1931. Maj. William Addleman Ganoe, Ii:lfantry, from January 1,

193L Maj. Elmer Franklin Rice, Infantry, from January 1, 1931. 1\~aj. Edwin Colyer McNeil, Judge Advocate General's

Department, from January 1, 1931. Maj. Augustine Warner Robins, Air Corps, from January

4, 1931. To be majors

Capt. Romeo Henry Freer, Quartermaster Corps, from January 1, 1931.

Capt. Horatio Grant Coykendall, Finance Department, from January 1, 1931.

Capt. Thomas William Doyle, Infantry,- from January 1, 1931.

Capt. Henry Hockwald, Quartermaster Corps, from Janu-ary 1, 1931. ·

Capt. Carroll Morton Gale, Infantry, from January 1, 1931. Capt. John Louis Shanley, Quartermaster Corps, from

January 1, 1931. Capt. Odber Merrill Cutler, Infantry, from January 4, 1931.

To be captains

First Lieut. Fred Cyrus Nelson, Air Corps, from January 1, 1931. .

Fy-st Lieut. James Andrew Healy, Air Corps, from January 1, 1931.

First Lieut. Edward Moses Morris, Air Corps, from January 1, 1931.

First Li~ut. Everett Foster Rea, Finance Department, from January 1, 1931.

First Lieut Charles Douglas, Air Corps, from January 1, 1931.

First Lieut. James Elmer Boush, Quartermaster Corps, from January 1, 1931.

First Lieut. Hugh Albert Bivins, Air Corps, from January 1, 1931.

First Lieut. Maybin Homes Wilson, Corps of Engineers, from January 1, 1931.

First Lieut. Burton Frederick Lewis, Air Corps, from January 1, 1931.

First Lieut. Elmer John Bowling, Air Corps, from January 1, 1931. ' -

First Lieut. Orin Jay Bushey, Air Corps, from January 1, :i931.

First Lieut. SamuelS. Burgey, Ordnance Department, from January 1, 1931.

First Lieut. Fred Sidney Borum, Air Corps, from January 3, 1931.

First Lieut. Lawrence Carmel Jaynes, Infantry, from January 4, 1931.

To be first lieutenants

Second Lieut. Branner Pace Purdue, Infantry, from January 1, 1931.

Second Lieut. George Joseph Deutermann, Field Artillery, from January 1, 1931.

Second Lieut. George Arthur Grayeb, Field Artillery, from January 1, 19'31.

Second Lieut. Hayden Young Grubbs, Field Artillery, from January 1, 1931.

Second ·Lieut. William Albert Fuller, Cavalry, from January 1, 1931.

Second Lieut. Ralph Edmund Tibbetts, Infantry, from January 1, 1931.

Second Lieut. Edwin Lynds Johnson, Field Artillery, from January 1, 193L

Second Lieut. Clyde Eugene Steele, Infantry, from January 1, 1931.

Second Lieut. Ernest Holmes Wilson, Infantry, from January 1, 1931.

Second Lieut. Norman Holmes Smith, Fleld Artillery, from January 1, 1931.

Second Lieut. John Wingo Dansby, Infantry, from January 1, 1931.

Second Lieut. Robert Milchrist Cannon, Field Artillery, from January 1, 1931.

Second Lieut. Charles Cavelli, jr., Field Artillery, from January 1, 1931.

Second Lieut. Thomas Byrd Whitted, jr., Field Artillery, from January 3, 1931.

Second Lieut. James Wilbur Mosteller, jr., Coast Artillery Corps, from January 4, 1931.

DENTAL CORPS

To be major Capt. Arthur Benedict McCormick, Dental Corps, from

January 1, 1931.

1931 CONGRESSIONAL RECORD-HOUSE 1617

CHAPLAIN

To be chaplain with the rank of major Chaplain Charles Oliver Purdy, from January 5, 1931.

PROMOTIONS IN THE NAVY

Lieut. Commander George L. Weyler to be a commander in the Navy from the 1st day of November, 1930.

The following-named lieutenants to be lieutenant com-manders in the Navy from the 1st day of October, 1930:

William H. Hartt, jr. Junius L. Cotten. . Lieut. Christopher C. Miller to be a lieutenant commander

in the Navy from the 16th day of October, 1930. ·Lieut. (Junior Grade) Richard W. Ruble to be a lieu

tenant in the Navy from the 1st day of Oct~ber, 1930. Lieut. (Junior Grade) Charles F. Coe to be a lieutenant

in the Navy from the 28th day of October, 1930. Lieut. (Junior Grade) Aaron P. Storrs, 3d, to be a lieu

tenant in the Navy from the 14th day of November, 1930. The following-named ensigns to be lieutenants (junior

grade) in the Navy from the 2d day of June, 1930: Charles J. Zondorak. Milton A. Nation. Frederick C. Marggraff, jr. Marshall L. Smith. , The following-named lieutenants (junior grade) to be

assistant paymasters in the Navy, with the rank of lieutenant (junior grade), from the 2d day of June, 1930:

James J. McKinstry. Harold P. Richards. Theodore S. Dukeshire. Ensign Albert B. Corby to be an assistant paymaster in

the Navy, with the rank of ensign, from the 7th day of June. 1928.

The following-named boatswains to be chief boatswains in the Navy, to rank with but after ensign, from the 9th day of August, 1930:

Carl Allen. John L. Hunter. William F. Lewis. Clarence L. Foushee.

John F. King. William L. Hickey. John D. Cross.

Electrician George F. Little to be a chief electrician in the Navy, to rank with but after ensign, from the 7t~ day of Augmt, 1930. .

The following-named radio electricians to be chief radio electricians in the Navy, to rank with but after ensign, from the 8th day of November, 1929: ·

Albert J. Smith. Edwin Hanna.

HOUSE OF REPRESENTATIVES THURSDAY, JANUARY 8, 1931

The House met at 12 o'clock noon. The Chaplain, Rev. James Shera Montgomery, D. D.,

offered the following prayer:

As Thou hast put us here, 0 Thou God of Compassion, lay Thy hand upon us and bless us. We thank Thee for all the benign influences which have shaped our lives. As years roll by we shall think and talk of them with gratitude. To-day let us feel Thy presence breathing life and balm into all our natures. 0 Thou Divine Giver, give us the best thing&-joy unspeakable, peace that passeth understanding, and the heavenly voice that shall be to us a token of triumph. Enlarge our vision, broaden our horizon, and fill the heavens full of the evidences of fatherly benediction. In our tears, in our losses, and in our sorrows may we find victory. 0 Throne of Mystery, about which are clouds and darkness! 0 Throne of Grace, where our yearnings and our longings fall! 0 Elder Brother, hear us as we break the silence and give us wisdom. Amen.

The Journal of the proceedings of yesterday was read and approved.

MESSAGE FROM THE SENATE

A message from the Senate by Mr. Craven, its principal clerk, announced that the Senate had passed a bill of the

LXXIV--103

following title, in which the concurrence of the House was requested:

S. 5295. An act authorizing an additional per capita payment to the Shoshone and Arapahoe Indians.

PERMISSION TO ADDRESS THE HOUSE

Mr. FISH. Mr. Speaker, I ask unanimous consent to address the House for 10 minutes.

The SPEAKER. The gentleman from New York asks unanimous consent to proceed for 10 minutes. Is there objection?

Mr. BLANTON. Mr. Speaker, I shall not object; but I want to ask the gentleman a question. Is it the gentleman's position that all of the hue and cry about people suffering on the farms in the country in drought-stricken areas is mere bosh, is merely a question that has been raised by the communists, as the press has recently reported?

Mr. FISH. No, no. · Mr. BLANTON. Then the press must have misreported

the gentleman. Mr. LAGUARDIA. Mr. Speaker, reserving the right to

object, and I shall not object whether my request is granted or not, I would like to address the House for five minutes following the gentleman from New York.

The SPEAKER. Is there objection to the request of the gentleman from New York?

Mr. TILSON. Mr. Speaker, we are to have general debate a little later in the day, and the gentleman will _have ample opportunity to address the House. Therefore I do not think the gentleman should ask for this time.

Mr. FISH. I have not spoken in the House for some time. Mr. TILSON. There will be plenty of opportunity to-day. Mr. FISH. I ask for only 10 minutes. Mr. TILSON. There will be ample time in general de

bate, and I do not think the gentleman ought to put the floor leader in the embarrassing position of objecting.

Mr. FISH. I ask this as an emergency proposition. Mr. TILSON. So far as I am concerned, I am willing to

stay on into the night if other gentlemen are willing to do so. If the other 434 Members are willing to stay here, I am willing to stay along with the rest. It is not my obligation any more than it is the obligation of any of the other Members, but I do not think the gentleman ought to ask for this time now.

Mr. UNDERHIT..L. If it will relieve my leader of any embarrassment, I do not have any qualms -about objecting. I object, Mr. Speaker.

The SPEAKE~. Objection is heard. AMENDMENT TO THE NATIONAL PROHIBITION ACT

Mr. DYER. Mr. Speaker, I ask unanimous consent to take from the Speaker's table the bill (H. R. 9985) to amend the act entitled "An act to amend the national prohibition act," approved March 2, 1929, a bill that has passed the House and passed the Senate with two or three minor amendments, which do not affect the bill as it passed the House. By unanimous direction of the Judiciary Committee, I ask unanimous consent that the Senate amendments be concurred in by the House.

The SPEAKER. The gentleman from Missouri, by the unanimous direction of the Committee on the Judiciary, asks unanimous consent to take from the Speaker's table the bill H. R. 9985, with Senate amendments, and agree to the Senate amendments. The Clerk will report the bill and the Senate amendments.

The Clerk read the title of the bill. The Clerk read the Senate amendments. as follows: Page 1, line 10, strike out all after "sale" down to and includ

ing "law," in line 11. Page 2, line 2, after "act," insert " : Provided, however, That

the defendant has not theretofore within two years _ been convicted of a violation of the said act or is not engaged in habitual violation o! the same."

Page 2, line 4, strike out "where·" and insert "in the production of which."

Page 2, line 7, strike out "unlawful" and insert "unlawfully." Page 2, line 7, strike out "of."

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