It says that provision is utterly unconstitutional, that we have no power to delegate our legislative authority to anyone.

The unbroken line of decisions has held that the legislative authority there mentioned includes the power to control the seat of government in all respects. There ought not to be any quarrel with that.

May I say this: While I have the highest regard for all the proponents of this and similar legislation and so have you-my word "phony" does not mean that they are not sincere and honorable in their efforts to do what they think is right for the District. What I mean is just what you understood me to mean, a more or less jocular reference to the effect of the bill.

Mr. ABERNETHY. Of course, the Members of Congress knowing you as they do, would not, I am sure interpret it in that vein.

Mr. HOBBS. Just to the effect of the bill.

However, I want to call your attention to this fact: While Senator Kefauver served on our committee for several years-I think it was 8 or 10 years he never advanced this theory as long as Judge Sumners was chairman of the committee, and as long as he served in that body. He is a recent convert to the theory that he can do everything by legislation that he would like to have done. It cannot be done. Mr. HARRIS. Mr. Teague?

Mr. TEAGUE. No questions.

Mr. HARRIS. Mr. Allen?

Mr. ALLEN. Judge, in the Auchincloss bill we finally came to the conclusion, very much along the lines we have discussed, using a little different terminology, that we could set up a system under which a proposal would come to the Congress as a procedural matter, as I saw it, in which some modicum of responsibility by the proposing group to the people of the District generally would be involved, with a positive congressional action approving that proposal.

Assuming that the proposal came here in any way that it happened to come and then was followed by the enactment of the proposal by both Houses of Congress and the signature of the President to the legislation later affixed, would there be any doubt in your mind as to the constitutionality of such a system?

Mr. HOBBS. Yes, sir. It would depend entirely on whether or not we answer the question affirmatively and get by with it, as to whether or not the legislation which we approve or do not veto is in the realm of municipal authority or in the realm of governmental action.

Mr. ALLEN. May I dispel that doubt? This would be definitely legislative action. The proposal would come for a piece of legislation to be enacted and, thereafter, the Congress not by failure to act nor by veto but by positive action on a resolution incorporating the terms of the proposal by reference would pass it by a vote of both Houses followed by the approval of the President. Where would the constitutional ban come in?

Mr. HOBBS. There would be no constitutional ban; but rather the specific constitutional authority which is granted in the Constitution to "petition" Congress. That is all that this bill amounts to.

When one wants to petition Congress for a redress of grievances he has a perfect right to do it, and if after that we go ahead and enact the law that is suggested, the better the suggestion the more praise to the suggestor. But they have the same right now. All

they have to do is to make any suggestion they want to and that is the way we get our legislation, by somebody making a suggestion.

You are exactly right, sir. Whether within the legislative sphere, governmental sphere, or in the municipal sphere, we have an absolute right to legislate for this District, and whenever anyone, one person, can make a valuable suggestion, if it is written into law by Congress, then it is utterly and absolutely constitutional.

We are very glad to have any such suggestions. As was said in the old case of Pollard against Hagen. I never will get away from it. While the jurisdiction and sovereignty of Alabama was been extended into the sea, it is there as it is on shore, but municipal authority and subordinate to the Federal power as set forth in the Constitution. That is not only good law that has stood for 140 years, but it is the insurmountable barrier that we cannot secape, no matter how much we might like to try.

Mr. HARRIS. Judge, may I propound this question: Taking into consideration the fact of such proposal, whereby the Council would be selected by a majority of the voters or the qualified voters of the District of Columbia, who would recommend or petition to the Congress of the United States some specific legislation, would it not be the same and have the same effect as a recommendation or a petition for specific legislation from the Citizens Association of the District of Columbia, the League of Women Voters, the Board of Trade, or any other civic or local organization which makes such a request and petition to the Congress?

Mr. HOBBS. Or any other person.

Mr. HARRIS. Or any one individual.

Mr. HOBBS. Do not misunderstand me for a minute. You predicated that in the first part of your question upon a vote of qualified citizens of the District. Do not misunderstand me for a second on that.

We do not have any right to grant suffrage. There is nothing in the Constitution that provides the power for us. We can play at the job if we want to.

Mr. HARRIS. Judge, I understand your interpretation and I am in accord with it to a certain extent. However, you do not say that the Congress could prevent the local Lions Club from electing by a majority of their qualified members their president and other officers?

Mr. HOBBS. Oh, no. We can go further and give them a cordial engraved invitation to make any suggestion to us for legislation they might wish.

Mr. HARRIS. That is right. Though it might not have any legal effect until the Congress acted on it

Mr. HOBBS. That is right.

Mr. HARRIS. There would be nothing in violation of the Constitution for the Congress to say to the people that they can under certain rules set up a procedure whereby they can select certain people to do certain things.

Mr. HOBBS. Of course not.

Mr. HARRIS. That is what I have in mind.

Mr. HOBBS. You are exactly right.

Mr. HARRIS. Now I wanted to ask you this question: Personally, for obvious reasons I have refrained from expressing any personal

feeling about this entire matter, because it is so far reaching, and there are so many proposals here. I have properly refrained from making any comments about my personal attitude at this time on these so-called bills, but I have had a feeling for a long time, which I have expressed over a period of time, that it would be helpful indeed to the Congress and to the people of the District and perhaps to the Nation if there were a delegate or somebody in some manner selected by the people to be here in the Congress representing them, such as the delegates from the Territories, and so forth.

Do you feel that under the Constitution we could not set up a procedure whereby the people could legally and constitutionally elect or select someone to represent them in the Congress as a delegate?

Mr. HOBBS. I doubt very seriously if we can. You know Judge Sumner's resolution to amend the Constitution provided just that. Mr. HARRIS. Yes, I know.

Mr. HOBBS. He did not think that we could go to the length of authorizing the electing of United States Senators, but he did think we could give them seats in the lower House.

Mr. HARRIS. You mean a nonvoting seat?

Mr. HOBBS. No, sir. He meant a full-fledged seat.

Mr. HARRIS. I appreciate that. The difference in that proposal and my question here is the difference as to the nonvoting delegate. Mr. HOBBS. My answer there is this: I am a strict constructionist. We have a written Constitution which was written for the sole purpose of restraining us and not for the purpose of implementing our desires and wishes.

I doubt very seriously, and with the most cordial sympathy with the desires of those who want it, that it can be done. I believe it would be stricken down just as quickly as it got to the Supreme Court. Mr. HARRIS. A test, Judge, could be made if there were one provided and the bill were proposed.

Mr. HOBBS. It could be, yes; but I do not believe that it would be safe in any way for the simple reason that this is not a Territory. At least four Senators argued at length in the debates of 1878, using the Territorial argument almost ad nauseam. They thought it was an argument the other way. Some thought to the contrary, of

course.

However, we have had the debate on that, and it was decided in the negative, positively, that we can make no Territory out of the District of Columbia. It is the seat of government and under the control of government and under the control of no one else.

The basic reason, originally, may have been they did not want to be killed. When they were run out of Philadelphia, they ran, and we would have, too, but it will not happen now, of course.

They felt then, and I think they feel now, that this cannot be made a Territory, and that is not what the people of the District are thinking on this subject.

Personally, I do not see any objection if the people of the United States, acting through the same power that created this National Government, should do that. Do not forget that the States created this Government, and no one else, and the States have a right to change their Government whenever they wish, and there ought not to be any fear or hesitancy in going to the people for renewed authority, if it is right. If it is right that the seat of the Government should be a

Territory, which I very much doubt, then it is easy to submit a constitutional amendment, and we will know we are right. If the people of the United States want to do that, why God bless them. It is their privilege.

Mr. HARRIS. You would not agree with some opponents of the legislation that the Supreme Court decision in the Binns case applied to Territories could equally apply to the District of Columbia? Mr. HOBBS. I do not think so and I do not think that the Supreme Court thought so. I do not mean to speak for them of course. Mr. HARRIS. I appreciate that.

Mr. ALLEN. Will the gentleman yield for just one question?
Mr. HARRIS. Mr. Allen.

Mr. ALLEN. Judge, I do not have the background to judge this question.

Wherein would a proposal that the District might elect a Delegate to the House, who could introduce bills which the Congress would then consider, be much more than a rule of the House as to how bills should be introduced?

Mr. HOBBS. That is a very good question, a very pointed one, and I will take pleasure in trying to answer it.

The Constitution of the United States says that the legislative power of the United States is not, as the other powers, unlimited. The first section of the first article of the Constitution reads:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

I doubt, seriously, that we have the right to do anything more than to seat Delegates from the Territories, which is provided for by statute and rule, if that could be applied to the District. That is what I mean, sir. I may be wrong, but those are my sentiments.

Mr. HARRIS. Just one more question, Judge.

Mr. HOBBS. Surely.

Mr. HARRIS. By the same analogy you feel that the Congress could provide a procedure whereby certain people who meet certain requirements-we will call them qualified electors-of the District of Columbia may select the school-board members of the District of Columbia?

Mr. HOBBS. No, sir.

Mr. HARRIS. You do not think that could be done?

Mr. HOBBS. No, sir; I do not think that could be done. I think exclusive governmental powers are all in Congress.

Mr. HARRIS. We can provide as the law now provides that the school-board members can be selected, and they are, by a committee composed of the chief justice of the district court, I believe, and some others.

Mr. HOBBS. As the agents of the Congress, the sovereign power. Mr. HARRIS. Could not the Congress make the people its agent in appointing or selecting members of the school board?

Mr. HOBBS. That is a very keen question which has been debated a long time. Personally I do not think so because the power of votingthe suffrage-is, in my mind, over the line in the realm of governmental power rather than a mere agency for the purpose of education. Mr. ALLEN. Would you yield there?

Mr. HOBBS. Or for the purpose of administering the educational set-up.

Mr. ALLEN. Judge, wherein is the difference between 200,000 or 300,000 people voting by a majority vote for the election or the designation of a school board, and the power of 7 or 8 or 10 judges voting by a majority vote for the same board?

Mr. HOBBS. Because those judges, or whoever they are-and I am not familiar enough with the provisions to know-have been authorized by us to act as our agents in that regard. We have delegated that power of appointment to our agents to make that selection and that appointment.

Mr. ALLEN. Where is the difference, though, other than just the number of agents?

Mr. HOBBS. Not at all. I do not think so. I think that the exercise of suffrage, or the franchise of a ballot, is a governmental and essential governmental power rather than a municipal one and that the provision of teachers for our schools is purely municipal. I may be

wrong.

I realize that the line in many cases is not clearly drawn and cannot be. Nor would I say that I am right in any of these prognostications. Mr. HARRIS. Judge, thank you very much. I am sure you can tell by the questions from the members of this committee that we are diligently trying to seek the correct course and to do what is right and just in this matter.

Mr. HоввS. And we are very grateful to you.

Mr. HARRIS. Thank you for coming here.

Mr. HOBBS. May I tell you a joke off the record?

Mr. HARRIS. We would be glad to have it.

(Discussion off the record.)

Mr. HARRIS. Thank you very much, Judge.

Mr. HOBBS. Thank you, sir.

STATEMENT OF DR. MARSHALL L. SHEPARD, RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA

Mr. HARRIS. I would like to ask Dr. Marshall L. Shepard if he will come forward. Dr. Shepard is Recorder of Deeds of the District of Columbia. We are glad to have you with us, Dr. Shepard, and I wish you would identify yourself a little bit further.

Dr. SHEPARD. I am Recorder of Deeds for the District of Columbia, and I have been for the last 5 years. I was appointed in 1944 by President Roosevelt and confirmed by the Senate. That is about all I can say.

Mr. HARRIS. Very well; you may stand or be seated, Doctor.

Dr. SHEPARD. Mr. Chairman and gentlemen of the committee, may I say, at the outset, that I favor the principle of home rule. The President has asked for it. It is a pledge of the National Democratic Convention's platform, and I stand 100 percent for the carrying out of that pledge. However, I am unalterably opposed to Senate bill 1527 because, in my humble opinion, this bill fails to meet the requirements for real home rule.

I favor the broadest possible basis for suffrage and I believe that the citizens of the District of Columbia should be permitted to vote in national elections. This bill does not so provide. I believe that the citizens of the District of Columbia should have representation in the Congress. This is not provided for in this bill. Again, I am certain