When the Bethlehem Steel case and the LaCrosse Telephone case were decided by the Supreme Court, that theory of concurrent jurisdiction was definitely out of the window.

It was after that that we and several other States urged that some amendment be added to the then Wagner Act and later the TaftHartley Act that would reinstate that rule.

Mr. WALTER. Reinstate that rule?

Mr..GOODING. Yes.

Mr. WALTER. Or create a rule under which the Federal Government would have sole jurisdiction?

Mr. GOODING. No, we urged first that they would grant to the States concurrent jurisdiction. Personally I always urged that if Congress did not want to do that the very least they could do was write into the law just what, if any, authority the State should exercise; in other words, to state clearly exactly what Congress intended to preempt; if they intended to preempt all the field, to say so, and if they intended to preempt only a part of the field, to say so and leave the rest to the States.

In my opinion H. R. 3 would do in the labor field what we have been urging Congress to do by the other method. In other words, H. R. 3 would allow us to function so long as our law was not in conflict with the national labor relations law, and it is not. It would allow us to function until such time as jurisdiction of that particular dispute was assumed by the National Labor Relations Board.

In the most recent leading case on this question of preemption by implication, the Garner case, the Court said in its opinion considerable authority had been left to the State by Congress, but that the courts are required to spell out conflicting indications of congressional will in the area in which State action is still permissible.

It seems to me when the Court says that, the Court in effect is legislating. They are determining what the congressional intent was. Mr. WALTER. What is the citation of that case?

Mr. GOODING. I do not have the citation of the Garner case but I can get it for you very promptly. It is a very recent, or comparatively recent, case. It arose in Pennsylvania.

It is my opinion that Congress should say exactly what its intent is. If it intends to preempt, fine; then everybody knows it. They say so. Everybody knows it. No State is going to attempt to legislate and no State is going to attempt to regulate; but they are going to rely on the action in Washington to regulate that particular field. Any time that Congress says that is what they want to do I have no objection to it from the standpoint I am now discussing.

In this particular field I do not think it is good, but if Congress thinks it is I am perfectly willing to go along. The thing that I do not like is for the Court to say that Congress intended to preempt the field merely because they passed legislation in that field, and particularly in a field where traditionally jurisdiction has been exercised by the States.

In this particular field up until 1935 there was never any question. As a matter of fact, when the Wagner Act was passed the question was not whether or not the States had power to legislate in this field, but the only question was what if any powers the Congress had. The bulk of opinion of the lower courts was that Congress had no power

66407-55-pt. 1-7

in the field of manufacturing, for instance; but since that time the gamut has been run. Now the question no longer is what power does Congress have, but the question is what if any power is left in the States.

By the way, the citation has just been handed to me in the Garner

case.

Mr. WALTER. I have it.

Mr. GOODING. 346 U. S. 485 (1953).

This morning the chairman raised a question as to whether or not the last sentence in the proposed amendment to H. R. 3 did not state the existing law. Now, it stated the existing law as I thought it was many years ago, but I do not think it states the existing law as it is today. I just want to read a colloquy between Justice Frankfurter and Mr. Ratner, who appeared as amicus curiae in one of the cases of ours before the Supreme Court.

Mr. Justice FRANKFURTER. This is not a legal question I am propounding. am trying to find out what it is that you are addressing yourself to.

I

Mr. RATNER. That is a case which comes to this Court for the very reason that the employee, instead of seeking to vindicate the right which Congress gave, and by which it authorized the National Board to protect, went to the Wisconsin board, which, applying the identical rule of law makes findings of fact which, if the National Board had made, it would have held violated the National Act and ordered a remedy which, if the National Board had found there was a violation of the national act, was the very remedy the National Board would have ordered. This is a case of complete coincidence, not of opposition, in any

other sense.

Mr. Justice FRANKFURTER. Or impairment, or differentiation.
Mr. RATNER. That is right.

Mr. Justice FRANKFURTER. It is merely a question of whether identical or alternative remedies could be sought in the State, as against the Federal agency? Mr. RATNER. As I put the question, it is whether the Wisconsin board can duplicate what the National Board was set up to do. I think that is a fair statement of it.

Mr. Justice FRANKFURTER. There is no possibility, or no suggestion that Wisconsin could exact more or different requirements from what the national act would exact?

Mr. RATNER. There is no such question.

Mr. Justice FRANKFURTER. In other words, it is merely a question of whether Wisconsin is shut out because you can get this very remedy in Washington? Mr. RATNER. That is right.

Now, in that case the Supreme Court reversed the Wisconsin Supreme Court, which had affirmed the jurisdiction of the Wisconsin board, and it did it with an opinion merely saying it was reversed on the basis of the La Crosse Telephone Co. case. That was a case in which there was absolutely no difference, and it is now one of those cases that stands for the rule that when the National Congress has legislated the States cannot do anything that is either protected by it or prohibited by the congressional act.

We do not believe in the States that that is what Congress intended when it passed the law. We do not believe it is what Congress intends now. We think that H. R. 3 would be a complete answer in this field and in many other fields to the continuous legislation by the courts rather than by Congress.

I feel that the adoption of this legislation would strengthen the hand of Congress and reduce the power of the courts. Now, that is my position.

Mr. WALTER. This committee had some experience some time ago with a perfectly outrageous case of legislating in the Insurance case.

As you know, Paul v. Virginia held for 75 years. There were a lot of precedents. All of a sudden the law was repealed. That is what it amounted to.

Any questions, Mr. Chelf?

Mr. CHELF. What do you think of this proposed amendment Mr. Wyman submitted? Have you had a chance to see it?

Mr. GOODING. I saw the amendment. I do not think it is much different from the original bill. I have no doubt in my own mind, without doing any research work on it, but what Congress can do exactly what they have started out to do in the original H. R. 3. Now, it might be better. There might be some questions raised if this were not limited to future acts. But I think the last sentence in Mr. Wyman's amendment brings about the same result so far as past acts are concerned.

It does not seem to me there can be any question but what Congress has that power. They are not legislating anything which is substantive law here; they are laying down a rule for the courts to follow in interpreting laws passed by Congress. That is all that is being done. You are telling the courts to stop inferring an intent in Congress unless Congress expressly says, "We intend thus and so." That is the point. I do not think there is any substantive law here.

Mr. CHELF. I agree with you. Something has to be done. Something must be done.

Mr. WALTER. Any questions, Miss Thompson or Mr. Hyde?

Mr. HYDE. How do you feel about this question that was bothering me a little bit, as to the effect of the first sentence in H. R. 3? Do you feel that is too broad? Do you feel that it is so broad that it amounts to an abrogation of the express powers delegated to Congress?

Mr. GOODING. No; I do not. I feel very strongly that it is no abrogation of power at all, because it would not apply. For instance, this law could not apply to anything Congress has exclusive power to legislate on. It cannot apply, for instance, to coinage or patents. Mr. WALTER. Counterfeiting.

Mr. GOODING. Foreign affairs or anything of that kind.

Mr. HYDE. I know.

Mr. GOODING. It applies only in those fields in which the States traditionally have had power to act, and that power has now been curtailed or entirely taken away by reason of interpretations of the Court saying that Congress, when it passed certain legislation, intended to take it away.

Mr. HYDE. I agree perfectly. There is no doubt in my mind as to the fact that the Court will say it could not apply to those powers which have been expressly granted to Congress or exclusively granted to Congress. There is no doubt in my mind about that.

The question in my mind is whether or not the language itself, when it says that no act of Congress shall be construed as indicating intent of the Congress to occupy the field to the exclusion of the Stateswhen Congress says that we know, too, under a basic rule of statutory interpretation, intent is gathered first from the language of the law itself. The language here says, "No act of Congress.' That is allinclusive.

Regardless of its legal effect and regardless of the fact we know its legal effect cannot be to take away from Congress authority to act

exclusively in those fields expressly delegated to it by the Constitution, nevertheless, is the language itself so broad that the Supreme Court might construe it to be invalid because it exceeds the authority of Congress?

Mr. GOODING. Well, in the first place, I am not an expert on Federal law. In the second place, I am far from a good draftsman of legislation. I would rather leave that to this committee. If that is too broad, I would prefer to leave it to the committee as to the drafting of some substitute that would express the desires of the proponents of this legislation to limit the courts to finding the intent of Congress only when applicable-to finding that Congress intended to preempt only when Congress says so in so many words. Now, how that can be done or what wording can be used to do it, I do not know. I think this wording does it. Maybe some other language could be used that would do it better and would not raise the question you are now raising, Mr. Hyde.

Mr. HYDE. Thank you.

Mr. GOODING. I appreciate the opportunity, Mr. Chairman, of having been heard.

Mr. WALTER. We are deeply appreciative.

Mr. CHELF. Thank you very much.

Mr. WALTER. Is there anything further, Judge?

Mr. SMITH. Mr. Chairman, those are all the witnesses we have to present today. A number of people have written me who are willing and desirous of testifying on this bill, but it seems to me that this subject has been pretty well explored. If the committee desires to hear further witnesses, I can produce them from almost every State in the Union, but I do not wish to trespass upon your time. I know how busy you are.

(Discussion off the record.)

Mr. SMITH. Mr. Chairman, may I file for the record a resolution by the Southern Regional Conference of Attorneys General? Mr. WALTER. Without objection, the resolution may be filed. (The resolution is as follows:)

SOUTHERN REGIONAL CONFERENCE OF ATTORNEYS GENERAL,1 MARCH 31-APRIL 1, 1955, CHARLESTON, S. C.

RESOLUTION I

A positive rule of construction to guide the Supreme Court

Whereas the United States Supreme Court in recent years and in many cases involving the interpretation of Federal statutes and the constitutionality of State statutes has been following the rule that where Congress has enacted legislation on any subject, the States are deprived of power to enact or enforce similar laws on the same subject even though not in conflict with the Federal act, and notwithstanding the provisions of the tenth amendment reserving to the States and to the people all powers not granted to the Federal Government; and

Whereas this rule has resulted and is resulting in a derogation of State jurisdiction not specifically intended and in many instances not impliedly intended by the Congress: Now, therefore, be it

Resolved by the Southern Regional Conference of Attorneys General meeting in Charleston, S. C., on April 1, 1955, That this conference calls upon the Congress to establish by specific statute a positive rule of construction to guide the Court, such guide to apply to all acts of the Congress unless such acts shall contain an

1 Representatives of the following States participated in the conference: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

express provision to the contrary, such as contemplated by H. R. 3 introduced by Congressman Smith of Virginia; and be it further

Resolved, That this conference urges its members to communicate with their congressional delegations with the view to enactment of such a proposal.

Mr. SMITH. I certainly do appreciate the patience with which you ladies and gentlemen have listened to our presentation. As I say, I could bring in any number of witnesses, but they would be repetitious. I do seriously urge this committee to do whatever you think should be done for passage of this bill.

(Discussion off the record.)

Mr. WALTER. Thank you very much.

At this point we will insert the statement of Hon. Richard H. Poff, a Representative in Congress from the State of Virginia. (The statement referred to is as follows:)

STATEMENT OF HON. RICHARD H. POFF CONCERNING H. R. 3

Mr. Chairman, my name is Richard H. Poff and I have the honor to represent Virginia's Sixth Congressional District. By way of preface, I want to pay tribute to my Virginia colleague, Judge Smith, for introducing what I consider to be the most significant piece of legislation of the 84th Congress. It is significant because it dramatizes and seeks to reverse the ever-increasing trend toward Government centralization which threatens to invalidate the 10th amendment to the Constitution.

In an effort to clarify the facts, circumstances, and judicial pronouncements which developed the so-called doctrine of preemption, I have abstracted the several cases involved.

It was in the early case of Gibbons v. Ogden ((1824) 9 Wheat. 1), that a State statute was first struck down as being in conflict with a Federal statute. The facts were that the New York Legislature had passed statutes granting for a term of years to Messrs. Robert Livingston and Robert Fulton, the exclusive right to navigate steamboats on the waters within the jurisdiction of the State of New York. Plaintiff Ogden had obtained an assignment of so much of the grant as authorized steamboat navigation between New York City and Elizabethtown, N. J. He sought an injunction against the operation by defendant Gibbons of any steamboats between the same towns or elsewhere within the State of New York, although Gibbons' boats had been duly licensed under the Federal act for licensing ships to be employed in the coatsing trade, and although the ElizabethtownNew York City route was within the coasting trade. Gibbons maintained that he had the right to navigate between Elizabethtown and New York City in spite of the prohibition of the New York statute.

The New York chancelor granted an injunction against Gibbons' use of his ships between those ports, the highest court of the State of New York affirmed the decree, and consequently defendant Gibbons appealed to the United States Supreme Court. The Supreme Court reversed with an opinion written by Chief Justice Marshall and a concurring opinion by Mr. Justice Johnson. Webster had argued on appeal for plaintiff that:

"On these pleadings the substantial question is raised: Are these laws such as the Legislature of New York had a right to pass? If so, do they, secondly, in their operation, interfere with any right enjoyed under the Constitution and laws of the United States, and are they, therefore, void, as far as such interference extends?

"It may be well to state again their general purport and effect, and the purport and effect of the other State laws, which have been enacted by way of retaliation. A steam vessel, of any description, going to New York, is forfeited to the representatives of Livingston and Fulton, unless she have their license. Going from New York, or elsewhere, to Connecticut, she is prohibited from entering the waters of that State, if she have such license. If the representatives of Livingston and Fulton, in New York, carry into effect, by judicial process, the provision of the New York laws, against any citizen of New Jersey, they expose themselves to a statute action, in New Jersey, for all damages, and treble costs. The New York laws extend to all steam vessels: to steam frigates, steam ferry