cause it was alleged to have unduly burdened commerce between States; and in the consolidated cases, in which this matter involving the blue sky law of Michigan, South Dakota, and Ohio reached the Supreme Court of the United States, the opinion of Mr. Justice McKenna in Hall v. Geiger-Jones Co. (242 U. S.), uses this language the only reference to them as subject matters of interstate commerce is that the alleged burdens or impositions upon them "is only an indirect burden upon them as objects of interstate commerce, if they may be regarded as such.”

Senator COUZENS. So the court has not decided it? That is your contention?

Mr. EMERY. I say it is not based on that issue.

Senator WALSH. The lower courts have decided that they are. When the thing went to the Supreme Court the Supreme Court said it was not necessary to answer that question at all.

Mr. EMERY. Although that was the sole issue before the lower court.

Senator COUZENS. So, under the chairman's question as to whether the Rushville Electric Light Co. might be investigated, it must be concluded that the answer is yes if it sells its securities in interstate business?

Mr. EMERY. Senator, if I may even assume that that is entirely correct, the question that still remains before the committee is the nature and character of the power which the committee will recommend granting to this committee; and with respect to that the remainder of the argument still holds as to the general nature of the investigatory power.

Now, there is one other feature of the resolution, Mr. Chairman, that I want to direct your attetion to, and that is the second paragraph, which directs an inquiry into the expenditure of money by any of the corporations named-the Rushville corporation, for example and this is quite irrespective of whether or not their stock is held by any other corporation, or whatever the relations of the holding companies are. This second paragraph directs an inquiry into such corporations-I assume they are the corporations named in the first paragraph-to determine to what extent, if at all, they have by the expenditure of money or through the control of the avenues of publicity, made any and what effort to influence or control public opinion on account of municipal or public ownership of the means by which power is developed and electrical energy is generated and distributed, or to influence or control elections.

Senator WHEELER. That is limited, however, by the proviso offered by Senator Walsh yesterday.

Mr. EMERY. I will grant that, whatever that limitation is. Then, purely local corporations are to have an inquiry made as to whether or not they have expended any money, or whether or not on their behalf, not merely by their employees, but by those who sympathize with their views, or by any organization of which the are a member, whatever the organization may be; whether any money has been expended on account of municipal or public ownership, not in opposition to municipal or public ownership, but for or against the idea. Why, Mr. Chairman, the first amendment of the Constitution forbids the passage of any law by Congress to abridge the right of

free speech or the press; and the right of publication has always been held to include not merely the publications of a great newspaper, but any book or pamphlet or circular or printed statement of any kind in which a person may indulge.

Is it contended that the Congress of the United States can forbid an individual or a corporation, or undertake by law to determine that an individual or a corporation shall spend its funds for the purpose of opposing or urging the public ownership or operation of a local utility?

Senator WALSH of Montana. Mr. Emery, the subject of public ownership as distinguished from private ownership has been debated on the floor in connection with at least two measures-the Boulder Dam affair and the Muscle Shoals affair. Do you mean to say that Congress can not inquire, or whether public sentiment with relation to that feature of those two measures can not be inquired into, by a committee of Congress?

Mr. EMERY. The subject here, Senator, is to determine

Senator WALSH of Montana. Yes; but answer my question. This legislation is pending before the Congress. It is represented that public opinion is unanimous in one way against these measures, and it is against them because it involves the element of public ownership as against private ownership. Are we to understand that in connection with that legislation Congress can not inquire how much money has been spent by corporations to develop sentiment either one way or the other?

Mr. EMERY. You mean any illegitimate expenditure?

Senator WALSH of Montana. No; I mean any expenditure.

Mr. EMERY. As to any illegitimate expenditure I will say— Senator WALSH of Montana (interposing). No, no; I mean any expenditure whatever, in order to develop that idea.

Mr. EMERY. Oh, I certainly doubt that. You mean the question as to any illegitimate effort or action

I mean

Senator WALSH of Montana (interposing). Oh, no; Mr. EMERY (interposing). Just pardon me a momentSenator WALSH of Montana (interposing). Let me say that, as you know, the Congress has frequently investigated the question as to whether there is a lobby here. You know that?

Mr. EMERY. Yes, sir.

Senator WALSH of Montana. Endeavoring to influence legislation. We have had some cases of that kind, connected with such a matter, as you may recall, perhaps. Do you mean to say that the Congress, while such legislation is pending, may not inquire whether there is not a lobby here in Washington that is putting out constantly literature against Government or municipal ownership of public utilities? Mr. EMERY. Oh, yes; for the purpose of determining whether

or not

Senator WALSH of Montana (interposing). Whether that legislation ought to be enacted or not.

Mr. EMERY. Not for the purpose of determining any and every question, but for the purpose of determining whether or not illegiti mate or improper influence is being brought to bear upon the Congress.

Senator WALSH of Montana. Whatever it may be.

Mr. EMERY. Very well, but this resolution does not suggest for one moment anything in the nature of being illegitimate or improper. Senator WALSH of Montana. It does not make any difference to me whether it is legitimate or illegitimate. I do not claim that people have not a perfect right to pay out money to influence public opinion, but we want to know how public opinion is formed, and whether it is illegitimate public opinion formed upon advice from both sides given indiscriminately.

Mr. EMERY. And you claim that for that purpose the Senate of the United States may inquire into any expenditure made by a public-service corporation in the city of Detroit

Senator WALSH of Montana (interposing). You will remember that we disclosed in our historic investigation of some years ago that there was a lobby here in the city of Washington interested in legislation in reference to the sugar tax, and that they spent a lot of money on that matter. Do you desire to advise this committee that in your judgment that was not a proper inquiry to be made?!

Mr. EMERY. No; I do not, but I want to say

Senator WALSH of Montana (interposing). And in that case nobody charged that they violated any law. Nobody charged that they had done anything that they had not a perfect right to do. It was the contribution of private individuals for the purpose of influencing public opinion upon that matter. Was not that a perfectly legitimate investigation?

Mr. EMERY. Certainly, I think any inquiry by the Congress into a determination of whether or not there is any attempt to influence the integrity of the proceedings is perfectly proper.

Senator WALSH of Montana. Oh, no, no; not the integrity of the proceedings of the Congress.

Mr. EMERY. Yes.

Senator WALSH of Montana. I do not mean to say that there is anything wrong about the matter at all, but the Congress wants to know whether this public opinion that has been generated is by private interests and individuals, or whether it is developed in the ordinary way. We may certainly inquire into that. But I have said all I care to say on this subject.

Mr. EMERY. And may it therefore inquire into expenditures by some public utility corporation in Detroit or in Chicago, or elsewhere, as to its expenditures with reference to public or private ownership in local issues?

Senator WALSH of Montana. Well, that is a matter that we can reach very well when we come to it.

Mr. EMERY. That is plainly the intention of the language that is employed in this resolution, because there is no limitation as to the influence upon Congress, just as there is no limitation here when it says to influence or control elections. The right of the Congress to protect Federal elections is unquestioned, but we have to leave to the local governments some functions, some duties, and the inquiry here is not limited to the national character of operations. Now, that is exactly what we call attention to in the general and sweeping character of the inquiry, which involves both the exercise of the powers given to the Congress, and the local matters over which the Congress as no control. It seeks to give the proposed committee control over

matters as to which the Congress may legitimately exercise its powers, as well as the matters within the jurisdiction of the States and local communities.

Senator WALSH of Montana. Oh, well. I need not say any more at this time.

Mr. EMERY. Now, with respect to the other matter, as to legislative precedents: I want to call the committee's attention to Hinds' Precedents, volume 3, section 1731, with reference to an investigation of the Bank of the United States. Section 1733, involving an inquiry of January 3, 1837, as to the employment by several banks in which the deposits of public money are made by an agent residing at the seat of government to transact his business with the Treasury Department, the character of his business and the compensation received; whether he is employed by procurement of the Treasury Department or received any compensation therefrom.

Also to sections 1737 and 1738, involving resistance by President Jackson to an investigation of the executive departments and the report of the select committee, pages 100-103.

Also to section 1816, involving an inquiry by the Committee on Manufactures in 1837. At that time the Committee on Manufactures performed the functions now discharged by the Committee on Ways and Means, and the chairman of the committee reported a resolution requesting that the Committee on Manufactures be vested with authority to send for persons and papers. Representative Oakley of New York moved to strike out "vested with authority to send for persons and papers," and to substitute "empowered to send for and examine persons on oath concerning present conditions of our manufactures and to report the minutes of such examination to this House."

That proposition involved an extended debate on the powers of the Congress to require persons to appear as witnesses and for the production of papers. They did not question the power of the Congress to secure the attendance of witnesses with respect to the subject matter of an investigation on which the Congress was competent to act, but they were reluctant to require witnesses to appear from all parts of the United States under subpoena. And the discussion of.the limitations within which they should exercise their power is a very interesting example of the gravity and care with which the Congress regarded the discharge of its own duties, and the amendment was adopted by a vote of 100 to 78.

I merely refer to the others, but Mr. John Quincy Adams, in speaking of the Bank of the United States, raised the question as to the power of the Congress to require the production of private books, papers, and documents under a general grant of power. That is found in section 1731.

In section 1738 you will see that it deals at length with the report of the House committee, and contains a discussion of the authority of the House to compel the executive departments to submit books and papers for the inspection of the House. The employees who were being investigated were being required to submit what they regarded as private books and papers as well as public records, and while discussing the nature of the power conferred on either House to require the presence of witnesses and the production of books and papers,

82732-28-PT 4- 4

they used this expression which is one of the first examinations of the power:

*

One of the powers conferred on the committee by the resolution of the House was the power to send for persons and papers. At best this is a vague and not well-defined power; incidental, and not derived from any express provision in the Constitution. In its exercise, therefore, there should be some limitation; and it should be carefully used only in cases where the direct legislation of Congress, the protection and enforcement of the privileges and rules It is a of either House, or manifest public interest imperatively demanded. judicial power, which Congress can exercise merely as a power incidental to the power "to make all laws which shall be necessary and proper."

And then they go on to say:

To construe it into an unlimited power for a committee of this House to bring before them the persons of citizens from any part of the Union at their own arbitrary will, without just cause, or to compel the surrender of all papers which the committee might see fit to send for, would be to set up an incidental power of the House nowhere expressly recognized in the Constitution, which would totally annul one of the express provisions of the Constitution, to secure the citizens against these very outrages, viz. "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures."

The remainder of the precedents to which I have referred are all directed to that very question, the manner in which the power shall be exercised.

Now, there is a final suggestion: That the committee will give due regard in determining the nature of the inquiry which it will authorize, not only to the character and extent of the power recommended, but to the public and private expense and inconvenience which may be reasonably anticipated.

A general inquiry, assuming it to be otherwise valid, and to that we have presented our objections, would under the terms of this resolution involve an enormous expense, not merely to the Government, but to private citizens in complying with it.

I want to give you one typical example that illustrates the ease with which vast expense is entailed upon the citizens of the country. And I assume that you will not only consider in whatever investigation you authorize, if any at all, as I have said, not only the expense to the Government but the expense to the citizen in complying with it: Mr. Herbert Hoover, the present Secretary of Commerce, in a public address to the Chamber of Commerce of the United States, was considering reduction of waste in the Government by reorganization of the executive departments, and he referred to the numerous questionnaires and inquiries from every department of the Government that go out to the citizens of the United States, compliance with which represents no small part of the clerical expense of firms and corporations in business. I might add, that he stated if these investigations were concentrated in one or two departments it would lessen the expense to the Government and lessen the expense to the individual, firm, or corporation, and used this language

Senator WHEELER (interposing). When was that speech made? Mr. EMERY. May 21, 1925.

Senator WHEELER. Was that while he was a candidate for the Presidency?

Mr. EMERY. It was while he was Secretary of Commerce of the United States, which he still is.