Senator SMITH. I agree 100 percent. You can't argue with me. The CHAIRMAN. You should change that to an elephant and a donkey, and then you will have it right.

Mr. DAVIS. I didn't go that far, Senator.
The CHAIRMAN. Senator Douglas?
Senator DOUGLAS. I have nothing.
The CHAIRMAN. Senator Withers?
Senator WITHERS. Yes, sir.

First, I want to compliment Senator Smith for his position which he takes, and I am sure he is very sincere about it, and I enjoyed hearing it. It doesn't make any difference whose brand the law wears, if it is a just act, and I believe he feels that way about it.

A good deal has been said about the implied powers of the President. In this country we operate a good deal by implied authority and implied power; is that right?

Mr. DAVIS. That is right.

Senator WITHERS. Isn't our whole judicial system built up on implied powers largely and the common law of England?

Mr. DAVIS. Well, that is a hard question, Senator. Particularly, addressed to a lawyer. You see, I make my living particularly by statutory law which is entirely based on statutes. There is no inherent right in nature, no implied right, to have a patent.

However, I don't disagree with what you are implying, I think, because I believe there are areas of life, especially in a democracy, that the law can't and should not reach. That is what I mean when I say you gentlemen ought to legislate with economy of coercion; the less law you have the better, in that sense. Not that I am opposed to planning, as everyone knows, but where you are coercing people, you ought to do it as little as possible.

That means that you rely on habits and customs and implications. As a matter of fact, we used to say in the NRA days that we could get along if the chiselers were not more than 10 percent. We never met that low a level, incidentally, but that really means something. If you have 90 percent of the people in favor of a certain piece of legislation, the courts can make it work. If not, the courts cannot make it work.

Senator WITHERS. I will get you to answer whether or not there are a number of implied powers that have been determined by the Supreme Court of the United States, that certain agencies of the Government have authority not specifically expressed in the Constitution itself.

Mr. DAVIS. Oh, yes, of course. One of the three great divisions, I suppose, has implied powers, but I think the difference is that the Constitution defines the powers of the legislature and defines the powers of the judiciary, and does not define the powers of the President; it only gives him duties.

I think it was repeated here the other day, somebody told me a remark I have made more than once, on the subject, and that is what has always actually happened in our history. It is that in a crisis the President has acted to save the Union, and usually by unconstitutional means-or frequently. However, he saves the Union. Then 2 or 3 years later the case gets into court because somebody's property has been injured, so he gets into court with it, goes up to the Supreme

Court, the Supreme Court says, "Well, that was unconstitutional," thereby saving the Constitution. We are all set to go again.

Senator WITHERS. The implication you would have is that in case of dire emergency, whether there is any law or not, somebody has authority to act, implied authority to act, to save the Government.

Mr. DAVIS. Yes.

Senator WITHERS. I am going to agree with you on that wholeheartedly.

Mr. DAVIS. Just as you would if you were passing the neighbor's house and the door was locked and you saw smoke coming out of the window upstairs and you knew there was a child up there. You wouldn't look for your neighbor to unlock the door, you would break it down. Certainly.

Senator WITHERS. Even though the act might be technically a violation of the law.

Mr. DAVIS. Certainly, breaking and entering.
Senator WITHERS. Thank you very much.

The CHAIRMAN. Senator Pepper?

Senator PEPPER. Mr. Davis, I happened to miss the earlier part of your testimony, but what I heard of it after I arrived, I inferred that you preferred the general approach and the general provision of the Thomas bill with respect to handling so-called emergencies to the machinery provided in the Taft-Hartley Act, the injunction.

Mr. DAVIS. Oh, yes, very much so.

Senator PEPPER. You do not believe and you do not share the sentiment of those who feel that if we adopted the Thomas bill approach instead of the Taft-Hartley bill approach, that we would be endangering and jeopardizing the security and the strength of our country?

Mr. DAVIS. Certainly not, Senator, and you give me an opportunity to say this: I have been reading the papers. It is a rather difficult subject, but to read the big metropolitan dailies you would think that this proposal was to deprive the American people of a safeguard when their health and safety was imperiled. That is the way it reads.

Every once in a while the paper will say: "Of course, this is only for the cooling-off period." That is the impression that even I would get, and I know something about it. The ordinary citizen thinks, "Why, now, the Congress is proposing to take away this safeguard."

It reminds me of a story which I would like to tell, if I may. It is an old one, but the situation is precisely like the story of the newsboy in New York who said to his customer one morning, "Mister, you should have been down here last night; we had a wonderful time. There was a fire in the 15-story building over here, and there was a fellow on the ledge of the 15th-story window and smoke was pouring out and flames were licking over him, and the gang was down in the street and we yelled to him, 'Jump, we have a blanket; we will catch you.' And I had to laugh, the guy jumped and we didn't have no blanket."

It is exactly the situation of this pretense that either Taft-Hartley law or the other law safeguards in such an emergency.

Senator PEPPER. It is all that is standing between the country and destruction at the hands of some strikers.

Mr. DAVIS. Yes-no blanket.

Senator PEPPER. One other thing. I deduced that it seems to be

also the general opinion that if there is a strike, let us say in the coal fields or in some other area which will inconvenience the public, maybe, and be the subject of great public controversy, that it is always assumed that the fault of the strike is on the part of the workers, that they are just a bunch of stubborn, if not malicious and sometimes unpatriotic people who will not do what is right and fair, and, therefore, they are the wrong-doers in the controversy.

I don't ask you to put blame on anyone where it should not exist, but I want to ask you out of your long experience to make any observation your experience will justify as to how the cause of strikes even of that character should generally be divided or assessed.

There is a

Mr. DAVIS. I have not tried to divide them, of course. naturalness on the part of the public to think that the worker is at fault because the worker is the one who quits. When you board a bus and the conductor is following a rule of the company which he has to follow, you get mad at him.

As to the real cause, I think the expression of David Harum, who said he found there was just as much human nature in one man as there was in another, if not more, applies.

Senator PEPPER. This occurred to me. The Taft-Hartley bill provides a great power-that is, it is assumed to be a great power-in the President in case of a so-called national emergency work stoppage to direct the Attorney General to go into a district court and apply for an injunction, gives the district court, contrary to the law in the past authority to issue the injunction. That is all in the interest of preserving continuing of production in the supposed national interest. Mr. DAVIS. Could I interrupt you, Senator?

Senator PEPPER. Yes.

Mr. DAVIS. I do not agree with the idea that the President has the power to go into the court and get an injunction issued, unless the Government is in possession of the property. He certainly would have no such power.

Now, if the Government was in possession of the property, I think the courts would issue such an injunction, because any interference with the affairs of the United States, in fact, is covered by statute; but, at any rate, the court, if the Government was in possession, would find a way to act.

However, I think there has been misunderstanding in this discussion, or lack of clarity. The idea that the President could sit in the White House and say to Mr. Clark, "You go into court and get an injunction to stop this strike, because I say it is a national emergency." I don't think he could do that.

Senator PEPPER. That is the theory of the Taft-Hartley law; is it not?

Mr. DAVIS. The Taft-Hartley law-no. They say that to get a cooling-off period you can issue an injunction. We will cool the porridge by putting coal on the fire, and it is about as sensible; but it is limited to the 80-day period.

Senator PEPPER. That is the point I tried to bring out in the question to one witness the other day. I am not saying the law justifies it, but I got the impression that the public generally assumes that because this power to get an injunction for 80 days exists, that the

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Government has power to preserve permanently the output of the coal mines and to see that this work stoppage does not persist.

As a matter of fact, it is only an 80-day cooling-off period, so-called, and at the end of the 80 days the whole matter is supposed to be reported to the Congress, and there is nothing in the Taft-Hartley law to govern the matter after the 80 days; is that right?

Mr. DAVIS. Not a thing.

Senator PEPPER. Have you referred already to the provision in the Thomas bill allowing the Board to make an inquiry into the facts and make affirmative recommendations?

Mr. DAVIS. Yes.

Senator PEPPER. You have already commented upon that?

Mr. DAVIS. I think we ought to have 30 days after the Board makes its report in which the Board could continue to act.

Senator PEPPER. I heard that and thought it was an interesting suggestion. We give this power to get an injunction for 80 days against a work stoppage to keep the country from being inconvenienced or perhaps imperiled. Now, it never seems to any of our friends who are the advocates of that method of preserving continuity of production that another way could be found to give the President the power to direct the Attorney General to seek mandatory injunctions against management, to meet the demands of labor for 80 days, so that there wouldn't be any work stoppage for 80 days. They never seem to think that would be another way of preventing work stoppages. It always seems that the way to do it is to get an injunction against the worker to force him to continue to work for 80 days under the same conditions and for the same wages that he found so onerous that he was willing to give up his job in protest.

Mr. DAVIS. I am glad to hear you say that. It hits the nail on the head. The law might say in such an emergency that there will be compulsory arbitration of the dispute and let the people take their chance before a fair board of arbitration, but this thing says the man shall go back to work for a private employer, and I just can't help saying that that was put into an act of Congress at a very high temperature and would never be put into an act of Congress when the temperature was cool because it is the worst possible scheme for getting a thing settled; it doesn't settle anything; it is the worst possible thing for cooling off people. You take the porridge off the stove when you want to cool it; you don't put fuel on the fire.

Besides that, as I said before you came in, it is utterly unnecessary because all experience in this country and in England and Sweden, that I know about, shows without exception that you never fail to get the cooling-off period.

Now, it may be that a recalcitrant individual-and when I say that, you will think of my Welsh friend, Mr. Lewis, but some individuals, we will say, will say, "No; we will not wait this 30 days; we will go ahead."

Well, then, you are confronted with the same emergency that you are confronted with at the end of the 30 days anyway. I don't believe in legislating for that, not for any sentimental reason, but for this reason: There is nothing easier in the world than for such a person to take advantage of the 80-day provision. All he has to do is start his

quarrel 80 days before he wants to strike. Mr. Lewis has got plenty of brains to do that, I can tell you that.

Senator PEPPER. There was one other part of your statement in which I was very much interested. You seemed to me to be contrasting the provisions of the Smith-Connally Act, for which, incidentally, voted during war, which permitted seizure, with those of the TaftHartley bill. Under the Smith-Connally Act-and it was actually taken advantage of in the coal-mine case-when the Government seized and took over the operation or possession of an industry, it had the right to fix wages and working conditions and enter into a contract with the employees; did it not?

Mr. DAVIS. The War Labor Board had the right. The seizer didn't have the right. If it was the Department of the Interior that did the seizing, Mr. Ickes had no right to change the wages, but either party could request the War Labor Board to change the wages. That was the Government; you are correct in putting it that way.

Senator PEPPER. I was thinking about the contract entered into between Mr. Krug and Mr. Lewis granting certain welfare funds for the first time to the coal miners, and, as I recall it, I thought they had also extended to a certain adjustment in the contract.

Mr. DAVIS. It had to be approved by the War Labor Board.

Senator PEPPER. I understand that, but, as a matter of fact, under that law there was power during the time of seizure and operation for the Government collectively to improve the working conditions of the workers; in other words, to grant that part of the workers' demands that it thought proper to grant.

Whereas under the Taft-Hartley law there is no authority in the Government to grant any of the demands of the workers during the 80-day injunction period; is there?

Mr. DAVIS. No. Of course, under the Taft-Hartley law the parties are supposed to negotiate for the 80 days.

Senator PEPPER. One other thing, Mr. Davis, getting at why some of us often speak in terms of repeal of the Taft-Hartley law, instead of just a minor amendment of it.

What were the essential provisions of the Wagner Act?

Will you summarize what the Wagner Act was and what it did?

Mr. DAVIS. I think that is fairly easy. We had had a history in this country, unlike most of the other civilized countries in the world, in which industry had undertaken to destroy the right of men to organize, and you know all about the concepts of conspiracy, et cetera. Although the courts had said such an organization was not a conspiracy, yet, after the first war, the big industry in this country set itself to destroy the unions. They did a pretty good job.

Senator PEPPER. In fact, Mr. Davis, if I may say so, didn't the present distinguished chairman of this committee and Senator La Follette, and I don't recall who else

The CHAIRMAN. I was there.

Senator PEPPER. The chairman and Senator La Follette were the two principals, if not the only members, and didn't they go into this subject and produce a shocking report of those abuses you are referring to?

Mr. DAVIS. I know a fellow that was down there with General Motors during the war. He was an awfully nice fellow and has the