However well intentioned may be the motives of those responsible for the terms of S. 2700, the effect, in my judgment, would be to destroy the great usefulness of the Interstate Commerce Commission, gradually at first but at an accelerated pace as time went on; and, on behalf of the American Short Line Railroad Association and its 319 members, interstate common carriers by rail, I express the devout wish that the bill will not prevail.

The CHAIRMAN. Thank you very much. Mr. Ames.

STATEMENT OF HARRY C. AMES, NEW JERSEY INDUSTRIAL TRAFFIC LEAGUE

Mr. AMES. If the committee please, my name is Harry C. Ames, practicing attorney, specializing before the Interstate Commerce Commission in commerce work. I am appearing here on behalf of the New Jersey Industrial Traffic League, which is similar in scope and effect to the National League. I also have been asked to speak on behalf of the Wichita, Kans., Chamber of Commerce. Both of these are organizations of shippers.

I wish, first of all, to adopt the testimony of all the preceding witnesses as to the intelligence and integrity of the Interstate Commerce Commission. I shall not touch upon that any further.

First of all, I should like to say I have spent 27 years of my life in gainful employment, and that, very oddly, has been divided into three equal parts of 9 years each. Nine years I was in the executive department of the Government, the interdepartment; 9 years I was with the Interstate Commerce Commission, and 9 years I have practiced before that Commission as a lawyer. So I think I am qualified to speak from an experience of 18 years of the functions of the Commission.

I think I am also very well qualified to draw a distinction or comparison as between the functions of an executive department and those of an independent establishment.

Now I appear in direct and vigorous opposition to this bill, insofar as it relates to the Interstate Commerce Commission, and I do not speak on behalf of any other commission.

In my approach to the bill I have tried to analyze it from a lawyerlike standpoint, and I think that the bill, in its present form, is absolutely unworkable and inadvisable. I have tried to approach this bill as though I had a case involving its direct application. I think it is unworkable, because certain of its provisions are so inconsistent as to be absolutely in conflict, each with the other.

I think it is unworkable because even the framers of the bill have no idea of the scope of its application.

I think it is unworkable because it is impossible for anyone, any member of this committee, any framer of this bill, to determine and define the twilight zone between routine administrative and executive functions, and quasi-legislative functions.

I think it is highly inadvisable because it puts into the hands of the President, or any President, the power to appoint personnel of an independent organization like the Interstate Commerce Commission. That, in my opinion, is one of the most vicious things the bill does.

Now I am going to try to approach it piece by piece, and I will be as brief as I can. I come directly to the powers of the President

under this bill. The transfer of power is found in paragraph (1) of section 2 on page 3. As it is stated there, it is as broad as the land. He is given the right to transfer or retransfer the whole or any part of any agency, and I call your attention to the definition of the word "agency" in the glossary of the bill. He is given the right to transfer all the functions thereof to the jurisdiction and control of any other agency. Standing without qualification, that power is as broad as any power could possibly be, but when you attempt to guard it with paragraphs (2), (3), (4), and (5) of the limitations of power, it is rendered almost innocuous.

One is left to wonder why the framer of this bill, if he wanted to reach subsection (c), as to the transfer of power, why he did not reach it directly instead of setting up a power and then knocking it down.

A broad power, such as that contained in section 1, is always dangerous in legislation, because when any attempt to qualify it is made you are held to the strict terms of the qualification, and no one knows where this power may creep up in connection with other parts of this bill until you have actual litigation in back of it.

Now I come to paragraph (2), which gives the President or any President, power to "regroup, coordinate, consolidate, reorganize, segregate the whole or any part of any agency or the functions thereof," that power, gentlemen, is not limited at all.

Now I listened with much interest as a lawyer to the colloquy between Senator Byrnes and Mr. Fulbright. Mr. Fulbright expressed great comfort in the idea that he had been assured it was not intended by the provision to go inside and reorganize the Interstate Commerce Commission. Now I will ask you to visualize a case where you have an argument before the Supreme Court of the United States on the construction and interpretation of paragraph (2) and you make the point to the Supreme Court of the United States, "Well, while that bill says this, I have been told by Senator Byrnes that it is not intended." Now I will ask you, if any of you are lawyers, to visualize how far you would get with that contention.

In the first place, there is no ambiguity in the paragraph. The Supreme Court held in the Subiaco decision quite recently that where there is no ambiguity there is no room for construction or interpretation. You could not interpret that paragraph. If you want that to stand as the late Senator Robinson intended it to stand you certainly have to change the language.

Now we come to the third paragraph. That covers the policymaking power, and again I find, when you come to the limitations, that is qualified by four separate paragraphs which go to a great extent toward rendering it innocuous. The fourth, however, is one that I have not heard discussed at all here. That gives the President power to prescribe the name and functions of any agency affected by any such Executive order, and the title, power, and duties of its executive head. Now I have not heard anyone say why that was put in there, but it is not inconceivable to me that that could be applied and administered by any President determining that he wants to do something with the power and the name as at present constituted. All its functions come within these limitations. I do not see why he could not change the name and the functions and prescribe them under paragraph (4) and then go ahead and do anything he wants with the power.

Now the power to transfer or retransfer, when you read down through the entire page 3, settles and concentrates itself on paragraph (c), on page 4. There the President is authorized, by Executive order, to transfer to an executive department any of the routine administrative and executive functions of any independent establishment which are common to other agencies of the Government.

Now, as I pointed out before-what is a routine administrative and executive function of the Interstate Commerce Commission? I do not know, and I have spent 18 years in and before that Commission.

Let us take just one simple illustration. In 1935 this Congress passed the Motor Carrier Act and turned over to the I. C. C. the regulation of motor carriers; in that act provided that the Commission should establish rules of insurance, rules of financing, rules of consolidations and purchases, rules of safety, rules of hours of service. You put it all in one statute. Now does it not appeal to the committee that the fundamental purpose of that statute, and the peak of it to be reached, the ambition, comes down finally, as Mr. Smith pointed out to you, to the establishment of rates for motor carriers? Doesn't that make sense, that that is where you finally wind up?

Now all of these things, safety, insurance, security provisions, hours of employment, all go to the cost of performing motor-carrier service, and the cost of service is one of the most important, if not the controlling, element in rate making.

Now how could the Commission function under the Motor Carrier Act if you are going to take their working tools away from them? That, in my opinion, is what this bill does, under the broadest of interpretations possible of the routine administrative duty.

Frankly, I do not know what the word "routine" means; that is, I do not know of an all-inclusive definition. I just consulted the dictionary this noon. It says it is something which occurs with regularity, or something which is recurrent. My notion of routine work, as applied to an office, whether it be a lawyer's office or any other office, is that you give a clerk a set of figures and say: "Copy those in a book. If you see anything you think is wrong, copy it anyhow. You are not supposed to use your brains. This is routine work." I do not know of any work of that character that the Interstate Commerce Commission does.

Now I come to the last phase of paragraph (c), which I think is the most important and at the same time the most vicious part of the bill, the appointment of personnel. Now if the word "routine" modifies administrative and executive functions both instead of just administrative and I think it does modify both-you would have to say that the appointment of personnel is a routine executive function, because the appointment of personnel is not qualified to that personnel, which covers the maintenance of personnel records or the procurement of materials. It is absolutely independent, and I cannot conceive how this committee could pass a bill which would call the appointment of personnel a routine matter. Does it not appeal to you that the appointment of personnel, carrying with it the selection also of personnel, is one of the most important things the Commission does? Now, if I may be pardoned for personal experience with the Commission, in showing you how carefully they selected their employees, I should like to take up a couple of minutes.

Senator BYRD. Before you come to that, do I understand your interpretation is that "routine" applies to executive as well as administrative?

Mr. AMES. I certainly think so, Senator, because you have the conjunction "and" in there, although it could be interpreted under the law as "or", under the rules of construction. If you put "and/or" in there you have the word "routine" modified both ways, in my opinion.

That is the trouble with this bill. Nobody knows what it does. Mr. Fulbright has told you the important job any examiner with the Commission has to do. The Commission, obviously, cannot read all his records, the Commission cannot even read all the briefs. They have to trust this work to examiners who are similar in every respect to a master in chancery.

Now in 1916, as you have been advised, the Commission entered into a mutual arrangement with the Civil Service Commission whereby they would exchange ideas in respect to employment. In 1927 the Civil Service Commission conducted an open competitive written examination for the job of examiner, and naturally it received a great response throughout the country. There were perhaps 3,000 who took the examination. Now that written examination was prepared by a committee of four, two from the Commission and two from the Civil Service. I was one of the Commission representatives. We not only prepared the written examination jointly, but we marked the papers jointly, and then, after the written examinations were marked, I was sent out with Examiner Mullen, of the Commission, to make a coast-to-coast trip, to personally interview the ones who had successfully passed the written examination. I traveled up to St. Louis and then down the southern route to the coast, I went to every important town, and I did not pass a man until I reached Pocatello, Idaho, and I will say unless we passed the man he was not accepted for employment. Now I cannot think of that care being exercised in the appointment of this personnel if the appointment of this personnel is to be placed in the hands of an executive, because politics must creep in.

Now in the 9 years I spent in the Interior Department there were three changes of administration, and I give you my word, gentlemen, when the administration changed from Republican to Democratand both were equally guilty-they literally got out the dustpan and they started with the section chief, even though he had only two or three people under him, and they did not stop until they reached the head.

What I mean is simply this-that the personnel of the Commission, due to the physical and mental limitations of those 11 men, must of necessity constitute their working equipment; and I think the Commission, knowing full well whom it wants to appoint, the qualifications of the men it wants to appoint, should be given the full power to make those appointments, and I can see nothing but a political logrolling if this thing is turned over to some executive department.

Now I have considered the other provisions of the bill in a very casual way. That concludes my analysis and criticism of it.

The CHAIRMAN. All right. We are very glad to have heard you. Mr. Walter, will you come around?

STATEMENT OF LUTHER M. WALTER, NATIONAL INDUSTRIAL TRAFFIC LEAGUE

The CHAIRMAN. Mr. Walter, you represent the National Industrial Traffic League?

Mr. WALTER. I do.

The CHAIRMAN. The same league for which Mr. Fulbright made a statement this morning?

Mr. WALTER. Yes.

The CHAIRMAN. If you want to add anything to the statement he made we will be glad to have you do it.

Mr. WALTER. I will do it just as briefly as possible. I appreciate the opportunity to be heard. I have no prepared statement.

For more than two-thirds of the Commission's 50 years I have been engaged in that work, transportation, either with the Commission as an attorney, examiner, or in the practice of the law representing all parties in interest, shippers, carriers, and so forth. While I have been general counsel for the National Industrial Traffic League since about 1910 continuously, I have represented railroads, and today I happen to be trustee of the Chicago & Great Western. I do know something of the work of regulating transportation.

The Constitution dividing the powers either legislative, executive, and judicial, placed on this Congress the power, the duty of regulating commerce. For 50 years there was nothing done on that, and for the past 50 years, as your agent, the Commission has worked on it, and you have heard enough said as to the character of that work.

I am particularly concerned lest the same character of investigation be made and reported to the President under this bill as was made by the Brownlow-Gulick committee. They frankly told you that they were working for the purpose of tightening up the Executive power, they were not working for the legislative power, and yet they admitted at the same time that they were not advised as to the character of work of the independent agencies. They said it would take a period of perhaps 2 or 3 years to do that. Yet, on that sort of an investigation, a report is made to you recommending that you give to the Executive the broadest kind of powers.

Now why should not you make the investigation? The President, an overworked, burdened man, with the greatest and best intentions in the world, with a heart full of sympathy, and all that, with so much to do, how is he going to do the work of passing upon what should be transferred from the Interstate Commerce Commission to some other department? Why should not you gentlemen, representing the legislative power, conduct the investigation and determine, and then change the law? Why should you, as the successors of 150 years of Senators, turn over to the Executive the power to do all of these things and put it beyond your control, except by a two-thirds vote to get it back? Why should you do that?

We appeal to you here to put in this bill a provision that it shall not apply to those agencies which have been created by Congress to regulate commerce- that they shall be left free.

When this Commission was first proposed it made a report to the Secretary of the Interior, but in 2 years they said: "No; we do not have anything to do with it. Report direct to Congress." that time to this reports have been made direct to you.

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