Now we do not intend, by this criticism, to imply that the President would do this, but, gentlemen, we do not want anything in the law that makes it possible for any President to do it.

Now with respect to Title II of the bill, Civil Service and Classification, we were very much astounded to find, when this bill came out, that it would apparently, as we interpreted it, give to the Executive the right to declare that some important position within the Commission was policy-forming in character. It does not say, "policyforming." I think that Commissioner Eastman failed to bring out that distinction, "policy-forming in character."

You take, as an example, of that, the head of the Division of Traffic, W. V. Hardie. At the time he took that position he was recognized as possibly one of the foremost transportation traffic experts in the United States. He has been there for many years. He talks a language that I doubt if any of the members of this committee could understand, because he is full of all of the technicalities that go with that office, he is thoroughly equipped; he makes recommendations to the Commission, of course, and that might be policy-forming in character.

Senator BYRD. Mr. Fulbright, may I call your attention to this clause in the President's committee report: "The Interstate Commerce Commission has a number of functions that involve policy determination, among them rate making in its general phases. In other words, the President's committee says you have a number of functions involving policy determination.

Mr. FULBRIGHT. Now, may I just advert to that passage, Senator. He mentioned rate making. If the author of that language had gone through the years of struggle that we have had between shippers and carriers, and the public, in fighting over what rule of rate making should be laid down in the statute, laid down by Congress-and that is what Mr. Eastman said when he said Congress determines our policy, he would know what the difficulty has been. There may be a way of handling a given class of cases, just as question of policy, the head of a division may make a recommendation, the Commission may turn it down, but nevertheless his position may be policy-forming in character.

Now, gentlemen, just as sure as you are alive, if you pass this bill as it is now worded I venture the assertion that within 10 years you will find the Commission shot through with politics, and pursuing a policy of political log-rolling, rather than of expert nonpartisan administration. That is the thing that we shippers have fought for years upon years, and we shall continue to fight it, gentlemen, and there has never been any discord among us as to the policy in that respect.

Now as to civil service, we thought this bill was to broaden the civil service, but what chance has the career man got in the Commission if he gets up to the point where he might be appointed to the place where it was policy-forming in character, and at that time some future President in office who had a favorite son that he would like to have in that nice position which may pay $7,000 or $8,000 a year? Senator BYRD. Favorite what?

Mr. FULBRIGHT. Well, I should not say "favorite son", I should should say "some favorite." I do not mean it in that sense, Senator. The CHAIRMAN. What did you mean?

Mr. FULBRIGHT. I meant there might be someone who had rendered a distinct service to the party that he would like to give this good office to.

The CHAIRMAN. All right.

Mr. FULBRIGHT. He could do it, and nobody could help it. Now the Commission has determined who holds those offices. If a man goes to work there for the Commission he knows he has got a future right there with that body.

I sat in an extraordinary meeting of that body just about a year ago, the occasion of the twenty-fifth anniversary of service of Commissioner Meyer, and they asked all employees who had been in the service of the Commission for 25 years to stand up. There were about 50 men who stood up, and I saw among the men that stood up men who, in their particular line, did not have anybody in the United States that could surpass them, because they had been promoted because of their merit into these positions that enabled them to perform those functions.

Senator BYRD. While you are discussing policy-determining, what is your interpretation of "a confidential relationship exists between the head of an executive department", and so forth? That is a further exemption, as you know, in addition to the fact that the President has the right to take out of the civil service all the policy-determining positions. He can take out also a position that has a confidential relationship. Now take the collection of taxes, for instance. Is not that a confidential relationship, that information which is supposed to be secret by law?

Mr. FULBRIGHT. Let me answer that in this way, Senator: I refer only to the Commission. I am familiar with the tax proceedings too, because I fool with them more or less, I am sorry to say, but the Commission will have before it a very important case. It is having its executive sessions, trying to determine what will be done in that case. It comes to a certain conclusion, it directs that its reports be modified to take care of it. Now I know people that would give their right arm to know just what they decided at that point, just like you would like to get advance information on Supreme Court decisions sometimes, and right up to the last day that the thing comes up in all of the history of the Commission they have never had but one leak. There was some smart reporter from a New York daily that did get some information that did leak, he got wise to it. How he did it nobody was ever able to find out. We do know it almost overturned the Commission in their effort to try to run it down, and try to find out how it happened.

Those are confidential relations, and necessarily in the protection of the public interest they have got to have them. Now there are various men to whom are confided the handling of these confidential

matters.

Senator BYRD. Under this law then, as drafted, those men could be taken out of the civil service? Is that your interpretation of it? The CHAIRMAN. Are they immediately under the supervision of the head of the Department?

Mr. FULBRIGHT. Those men, for the most part, are on what we call the special staff of the Commission.

9757-37- ———15

The CHAIRMAN. The language of this section, if you will read it and analyze it, is where the confidential relationship exists between an employee who is under the immediate supervision of the head of the Department. That applies to a secretary to a member of the Commission, and the only position that I heard him discuss in connection with that was a secretary. Now, I think the language he selected may be so broad that it might be better to specifically enumerate that position. But the purpose was to give to the head of a Department, as this section reads, the right to appoint his own secretary, and when administrations change you would not be required to have as your personal secretary the secretary of your predecessor and your political opponent in the preceding election, favoring policies entirely different from yours. I agree that language can be devised, and I may give you some comfort to tell you that that was his view. Certainly it was my view. I cannot speak for other members of the committee.

Mr. FULBRIGHT. I do not disagree with that.

Senator BYRD. Does not this law take away the right to appoint the secretary? It takes it from the Interstate Commerce Commission. Mr. FULBRIGHT. The language was very unfortunate, if it says that. Senator BYRD. Section (c) takes away that right of the Interstate Commerce Commission to appoint their own secretary.

The CHAIRMAN. You think it does?

Senator BYRD. Yes, sir.

Mr. FULBRIGHT. I do not know. I am not undertaking to interpret that language. I am saying that if there is any doubt about it it ought to be removed.

The CHAIRMAN. There isn't any question about that, but I am just telling you it was the intention of Senator Robinson, who had introduced the legislation, that because of the confidential relationship between the head of a department and one immediately under his supervision, he should be permitted to select that employee. All that you meant is that you would like to have language expressing that so it might not be left in the future to the determination of some person who might construe as policy-making many positions that you do not believe should be so classed.

Mr. FULBRIGHT. Mr. Chairman, I had one brief conversation with the former chairman of this committee, the late Senator Robinson, for whom I had a very high regard, and I felt this morning, when you made the statement that it was not his intention to interfere with the functioning of the Commission, that was the feeling that I got, that he did not intend to do that all. Now, naturally, he had not devised all this language, he could not have time to do it.

The CHAIRMAN. This language as to policy-determining was drafted by the Senate with the legislative draftsmen and the clerk of this committee, who is familiar with the language. It is solely a discussion as to whether or not that language accomplishes what was desired, and you are pointing out if it is left as it is in the bill it might be construed in a way that would be very injurious, in your opinion, to the administration of the Commission.

Mr. FULBRIGHT. Yes, sir.

Senator BYRD. Mr. Fulbright, if you will refer to clause (c), is it not true, under that, that the commissioners would not have the power to appoint their own secretaries?

Mr. FULBRIGHT. On page 4 are you talking about?

Senator BYRD. Page 4, yes.

Mr. FULBRIGHT. It might be so construed, Senator. I do not think it was intended to mean that at all.

Senator BYRD. I am not asking what it was intended to mean. You are a lawyer. Will you tell the committee if in your opinion it would prevent the appointment of their own secretaries by the Commission?

Mr. FULBRIGHT. I think I can take a case to court and put that interpretation through..

The CHAIRMAN. If you took the case on the other side, that there is no confidential relationship there, it would be placed outside of the civil service.

Senator BYRD. There are two questions involved under section (c). It has been repeatedly stated here that all the personnel will be appointed by the executive department to which the functions are transferred.

Mr. FULBRIGHT. The appointment of personnel is not limited.
Senator BYRD. It is all inclusive.

Mr. FULBRIGHT. When you get over into civil service they say over here that

Upon the expiration of one year after the enactment of this Act, all offices and positions in the various agencies of the government shall be covered into the classified civil service, except offices and positions—

then they enumerate from (1) to (5), but there is nothing there that I see that covers the Interstate Commerce Commission. Therefore I am rather at a loss to know how to interpret this law.

Now, right there, gentlemen, I want to make my parting observation. The selection of examiners for the Interstate Commerce Commission, the selection of experts on valuation, experts in traffic and rates, selections of expert statisticians on railroads are all matters that require somebody with an expert knowledge to determine whether a man is capable to do that or not. Now, with all of the time that I have spent in appearing before the Commission, I would not consider myself capable to select some types of men that they employ over there. Now, when you have got a body of that sort, charged with the carrying out of your own legislative policy, which you have laid down, acting in a legislative capacity, making investigations in support of that legislation, please do not let anything come into this law that would make it so the Commission could not determine what kind of examination should be given to these people, and then, when they are covered into that service, whether or not they need to be promoted in the service.

Now, since 1916, they have worked in harmony with the Civil Service Commission. They write out the examinations; the Civil Service Board does not write them. They, in the last analysis, judge certain of the qualifications, but the Civil Service Board conducts the examinations, determines which ones pass, what records they make, and so on, and then the Interstate Commerce Commission determines how they may progress in its own organization.

Now this would freeze that, would substitute for what has been a voluntary arrangement, working satisfactorily to the Commission and, I believe, in the interest of the public, by making it so that some civilservice administrator might some day say, "Well, I am going to take

charge of all of this. I will fix examinations, and I will tell you when you can promote a man from P-4 to P-5 class", or whatever it may be. Gentlemen, the Interstate Commerce Commission is doing a job which meets the general approval. Now mind you, I do not mean I agree with all their decisions, Senator. What I am talking about is as a body. I sometimes think the Supreme Court is wrong. I know they have been wrong in three cases that I have had on a 5-to-4 decision against me, but we are talking about that body as an administrative body, performing a legislative function almost entirely.

Now when that first report came out, soon after that, there was a meeting of the Association of Railway Labor Executives, and I was told by the chairman of that committee that they voted unanimously to oppose having anything done that would take away the regulation of safety devices, and such as that, from the Interstate Commerce Commission. That is the uniform expression that I have heard.

Now, I have taken more time than I intended, and I apologize to you.

The CHAIRMAN. We are very glad to have had you make your statement.

Mr. Hooker, will you come forward?

Senator BYRD. Mr. Chairman, I would like to say that Judge Hooker is on the State Corporation Commission of Virginia. He is one of the Virginia gentlemen that has filled that position on the body.

The CHAIRMAN. With that introduction, I would like you to make your statement.

Senator BYRD. That applies to all Virginians.

The CHAIRMAN. It could not be a better introduction.

STATEMENT OF H. L. HOOKER, ASSOCIATION RAILROAD AND UTILITIES COMMISSIONERS

Mr. HOOKER. Mr. Chairman and members of the committee, my name is H. Lester Hooker. I am a member of the State Corporation Commission of Virginia and have been a member of this commission for more than 12 years. I am at present its chairman. I was president of the National Association of Railroad and Utilities Commissioners in 1933 and am now chairman of the legislative committee of this association. It is in this last-mentioned capacity that I am appearing before you to discuss briefly Senate bill 2700.

Our national association maintains a central organization in the city of Washington, in charge of our general solicitor, Hon. John E. Benton, for the purpose of disseminating properly all important information, aiding the various State commissions, and coordinating their activities so far as practicable.

On behalf of, and at the request of, the executive and legislative committees of our association, Solicitor Benton prepared a memorandum relative to Senate bill 2700, but being unavoidably absent at this time, left his memorandum, and as I concur fully with the views expressed therein, I have, in the interest of brevity and to avoid any possible duplication of our statements, adopted the views expressed by Solicitor Benton as also expressing my own views.

The National Association of Railroad and Utilities Commissioners represents in its membership the regulatory commissions of the several States of the United States, except Delaware, which has no