STATEMENT OF R. C. FULBRIGHT, NATIONAL INDUSTRIAL TRAFFIC LEAGUE

Mr. FULBRIGHT. Mr. Chairman and gentlemen of the committee, my name is R. C. Fulbright. I am a practicing attorney. I reside at Houston, Tex. I appear here in behalf of and as chairman of a special committee of the National Industrial Traffic League. That organization, Mr. Chairman, I think we should note, is the only national organization of shippers. No carriers are represented in it. Directly and indirectly we speak for several hundred thousand shippers located, many of them, in every State of the Union.

For many years the league has been very actively interested in all transportation legislation, and in the regulation of transportation agencies, and in efficient administration of the bodies charged with such regulation. We followed them very actively. We have followed this subject, Mr. Chairman, for many years. It is nothing new, as I shall presently show you.

Now, to show you how promptly we act, the President's message transmitting the Brownlow report came down to Congress on January 12, and on January 15 there was a meeting held of a group of officials and members of the executive committee of this organization, whereupon they decided that a special committee should be appointed to make a study of that report, insofar as it might affect the Interstate Commerce Commission, which I shall hereafter refer to as the "Commission".

That committee went to work at once. It was comprised of people residing in this country from the Atlantic to the Pacific coast, and in early February they made up a report which they circulated to the executive committee, which is located all over the United States, and got a uniform response to that.

In their final recommendation, which was adopted, it was stated as follows:

It is the recommendation of your special committee that the league continue— I want to emphasize the word "continue"

to oppose this or any other bill which would authorize the President to regroup, reorganize, or change any of the functions of the Interstate Commerce Commission or to transfer either any of its functions or operations. We further recommend that the league oppose this or any other legislative proposal which would authorize the President or any other officer of the Government to take away from the Commission, or to perform, the functions of determination of its estimates of appropriations, the appointment of its personnel, the maintenance of its personnel records, or the right to make requisitions for any materials, supplies, or equipment it may consider proper in order to enable it to function, and we also recommend that the league oppose any further extension of the classified civil service laws over the offices and positions in the Interstate Commerce Commission, without prejudice, however, to the right of the Commission to continue the voluntary arrangement which it has heretofore had with the Civil Service Commission. In short, we believe the league should oppose any legislation which undertakes at this time to confer the deliberate power upon any executive officer to interfere with the operations, records, or personnel of the Interstate Commerce Commission. For fear that our previous authority may not be this broad, we respectfully request that the executive committee take a further vote as to whether or not it approves the recommendations herein made.

That was the action taken after the Robinson bill came out. That was submitted soon after the Robinson bill was filed, and a unanimous vote was had on that.

Senator BYRD. To whom was that submitted?

Mr. FULBRIGHT. The National Industrial Traffic League.
Senator BYRD. How many members have you?

Mr. FULBRIGHT. Directly and indirectly, Senator, we represent several hundred thousand shippers. You take for instance the Norfolk Port Traffic Commission, the Norfolk Chamber of Commerce, they are members of our organization, and various shippers' associations, the Southern Pine Association, and so forth, all over the United States.

Senator O'MAHONEY. Mr. Fulbright, do you regard the Interstate Commerce Commission, or any of these other commissions, as part of the executive arm of the Government?

Mr. FULBRIGHT. Certainly not. I am not speaking of anything but the Interstate Commerce Commission.

Senator O'MAHONEY. If you do not regard it as part of the executive arm of the Government, of what arm of the Government is it a part?

Mr. FULBRIGHT. Legislative, as I shall presently show you. I would like for the committee to bear with me a moment, just to qualify to speak on this subject. I shall be brief. Mr. Eastman has already saved me quite a few things that I wanted to say, and the chairman has very graciously made an observation about the first part of the bill which relieves us of a lot of anxiety. I have been practicing before the Interstate Commerce Commission for more than 28 years. The first 9 years I represented southwestern railroads. Since then I have represented shippers. From 1919 to 1925 I was chairman of the legislative committee of the Southwestern Industrial Traffic League. From 1921 to 1935 I was chairman of the legislative committee of the National Industrial Traffic League.

For many years I have been identified with committees, such as the committee on the Interstate Commerce Commission budget, committees on coordination of transportation facilities, committees on Government ownership of operation of railroads, and committees on railroad accounting, and my entire professional life has been given largely to a study of transportation. I merely mention that because, necessarily, I have had to come in intimate contact with the workings of the Interstate Commerce Commission, and also with a number of the State regulatory commissions.

Senator BROWN. In what capacity do you serve now?

Mr. FULBRIGHT. I am chairman of this special committee, Senator. Senator BROWN. Of what special committee?

Mr. FULBRIGHT. A special committee appointed especially with respect to the Brownlow report, and with respect to any legislation which might be proposed as the result of it.

Senator BROWN. Appointed by whom?

Mr. FULBRIGHT. Appointed by the president, with the advice of a group of the officials and members of the executive committee.

Now, as I started to say, this is not a new thing. Back in 1921, when Mr. Hoover was Secretary of Commerce, he first conceived the idea, the first time I heard it publicly mentioned, that the Interstate Commerce Commission's administrative functions, or its routine functions, or whatever they might be, should be placed under the executive branch of the Government. Now he did not say so, but we all thought he meant the Secretary of Commerce.

Senator O'MAHONEY. You are telling us, in other words, that this is a Hoover plan?

Mr. FULBRIGHT. The first one is a Hoover plan; yes, sir. That was in 1921.

On September 23, 1921, we held a meeting of our executive committee and appointed a committee to go to Washington to work on it. At our annual meeting, November 1921, we reported on the matter and the league voted unanimously to oppose any such matter.

The subject did not become very active again until the summer of 1923, when Mr. Hoover was still Secretary of Commerce, and in that period President Harding died.

Shortly after his death we held another meeting of the executive committee, which also happened to be held in Chicago, and a special committee was then appointed to come to Washington to work on it. I was appointed chairman of that special committee. We came and took it up first with the late Senator Cummings of Iowa, for many years the chairman of the Committee on Interstate Commerce of the Senate and one of the greatest students of transportation that has ever been in the Senate. He agreed with us that nothing should be done that would in any way interfere with the independent workings of the Commission.

He made an appointment for us with Secretary Hoover. We did not feel that we were successful in convincing the Secretary. We came back and reported to Senator Cummings. Senator Cummings said, "You will have to see the President." He made an appointment for us with the President.

We went to see President Coolidge. I do not think he had been in office a month at that time. We placed the matter before him, and as the result of that presentation, and of the interest which Senator Cummings and others who were in the respective committees of Congress that deal with the Commission, the subject was dropped, it was not included in the President's message, and we heard no more about it for some years.

Originally it was a Hoover idea. Whether we ever convinced Mr. Hoover or not I am not certain.

Talking about politics, I have been a Democrat all my life. I am from Texas and I am white, and I have supported a majority of the things that President Roosevelt has advocated, not all of them.

Senator BROWN. So have I. You haven't anything on me on that. Senator O'MAHONEY. He is from Texas, Senator.

Mr. FULBRIGHT. The majority of my committee used to be Republicans, but I think they are Democrats now.

Senator BROWN. They are all Republicans where I am from. Mr. FULBRIGHT. At any rate we have undertaken to view these things from a purely nonpartisan standpoint.

Now, I want to say this, gentlemen, about Dr. Merriam. I have known Dr. Merriam for more than 30 years. If I had a municipal problem in a city that I wanted to work out I do not know of any better authority that I could call on than Dr. Merriam. I studied with him more than 30 years ago. I was studying law, however, and he was studying economics, and was instructor in economics in a school of which we are both alumni. I have a very high regard for Dr. Merriam, but, gentlemen, the breadth of this report is such that it is apparent they did not go into some of the fundamentals to analyze the nature and character of the Interstate Commerce Commission.

Now, I am not going into the legal phases of it, except to give you the start of it.

The general counsel of our organization is here, Mr. Walter, who shall, if the committee will bear with us sufficiently, give you some legal authority on it, but I do just want to emphasize what Commissioner Eastman said.

Approximately three-fourths of the work of the Commission is legislative in character. They used to have a lot of reparation cases, but they do not have so many any more since the trucks got busy and the other forms of transportation.

Now, the reparation cases are quasi-judicial, but even there, gentlemen, the Commission does not have any authority to render a judg ment. They can make an award of damages to the shipper and the railroads can tell them to jump in the lake. The shipper has to hire a lawyer and file a suit in court. The award is prima-facie evidence only in the court.

So it is not a judicial body; it is a legislative body almost entirely, and its investigatory work is largely in support of its legislative function, just like your investigatory work is to determine what legislation you shall promulgate.

Now, the creation of the Commission by the act of February 4, 1887, represented the first experiment in the establishment of an independent regulatory body clothed with legislative power delegated by Congress.

At that time there were many who doubted the authority of Congress to delegate to such a body any powers which were legislative in character, even though the standards be laid down in the statute.

Now, the original act of Congress was very sparing in the breadth of power that it conferred upon this experimental board. Moreover, the Commission was established as an arm of Congress and not as an executive or judicial agency.

I might say that the Supreme Court later well settled it. I refer to St. Joseph's Stockyards v. United States as one of them (298 U. S. 38). It has been many times settled that Congress could delegate that legislative authority, within certain standards.

The original act provided for five Commissioners, for terms of 6 years, except that the original commissioners were to serve 2, 3, 4, 5, and 6 years respectively, and it was specifically provided that the Commissioners not only were to be appointed by the President, with the advice and consent of the Senate, but the authority of the President to remove any Commissioner was restricted to cases of inefficiency, neglect of duty, malfeasance in office. It was also provided that not more than three of the five should be members of any political party. The Commission was authorized, in the original act, 50 years ago, to employ its own staff, and was required to make annual reports to Congress as to all of its acts, also with respect to any recommendations it might have as to additional legislation. The authority of the executive branch of the Government was limited to the matter of appointment of commissioners, and removal for misfeasance in office. The Commission was not required to report to nor to be responsible to the executive-Mr. Brownlow and Mr. Merriam to the contrary notwithstanding-nor has it ever been in all the laws that have been in effect since that time, but was, on the other hand, required to report to and be responsible to Congress, because Congress recognized it as being a legislative arm of the Government.

Now these provisions have been continued in the subsequent amendments and reenactments of the legislation. The Commission, now composed of 11 members, is still only required to report to Congress. The statute provides that such report shall not only contain data and information collected by the Commission which may be considered of value in determination of questions connected with the regulation of commerce, but also the names and compensation of the persons employed by said Commission. This has been the requirement of the act since March 2, 1889, with minor variations from time to time.

Section 16, paragraph 11 of the present act specifically authorizes the Commission to employ such attorneys as it finds necessary for proper legal aid and service in the conduct of the work of the Commission or in representing the Commission before the courts in any attack upon its orders or otherwise, and also provides the expense of such employment shall be paid out of the appropriation for the Com

mission.

I might say, interposing there, I have been in quite a few cases carried up to the courts from the Commission, and the Commission's legal staff, that has spent many years in the peculiar questions, are naturally more competent to present its case than the staff of the Department of Justice, and that has been demonstrated time after time.

Section 18, paragraph 1, provides that the Commission shall appoint its secretary and "shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper performance of its duties." It also provides that until otherwise provided by law the Commission could hire suitable offices for its use and should have authority to procure the necessary office supplies. All of these provisions are substantially the continuation of provisions which have been in the law from the beginning.

Not only has the Commission been given full authority under congressional supervision to govern its own personnel and to conduct its affairs according to its own judgment, but the law has made it equally clear that the Commission may control its own proceedings subject to certain fundamental rules of law with respect to what constitutes a proper hearing or due process.

Section 17, paragraph 1 of the act provides "that the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice," and that it "may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it." It will be noted that the statute does not confer upon the executive branch of the Government any authority whatever as to how it shall conduct its affairs or the proceedings which are instituted for it. In the performance of any legislative act the respective provisions of the statute require that a full hearing shall be granted before an order may be issued which would have the effect of law. So long as the Commission comes within the ambit of constitutional requirements with respect to due process and orderly procedure, neither the judicial nor the executive branch of the Government has any power whatsoever to change, modify, or reverse its action or its plans of procedure. The only authority which can change these rules, orders, regulations, or other provisions is the fountain source of the Commission's authority, the Congress of the United States.