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Mr. MaMillan?

CREATING THE FEDERAL CITY

Mr. McMILLAN. Mr. Fountain, we all appreciate your taking your time to give us your opinion on the proposed legislation present before us this morning

I wonder if you could give us some idea what George Washington's reasons were for taking out the original ten-mile square area herewhy do you think he did this?

Mr. FOUNTAIN. Your colleague sitting on your left probably could give you much better explanation in response to that question because of his experience on this committee, but it has always been my understanding that it was staked out as the seat of the government, the Federal government, and was to be used for that purpose. I do not think that purpose should in any way deprive our citizens of any rights which they have under the Constitution.

Mr. McMILLAN. Is it not a fact that in the City of Philadelphia, where Congress met before the District of Columbia was created, that the Congress could not transact its business in a businesslike manner! The situation became so bad that George Washington felt that something should be done to correct the same. He staked out the ten miles square known as the District of Columbia, so that the Congress of the United States could be protected, since the police force and militia in Philadelphia did not even try to protect the Congress and that is the reason for the creation of this city.

Mr. FOUNTAIN. It is my understanding that it was one of the basic causes for it.

Mr. McMILLAN. For the protection of the people who are trying to transact the business of the Federal government-it was for that purpose, was it not?

Mr. FOUNTAIN. It is my understanding that that was one of the basic reasons for it.

Mr. McMuLLAN. We recognize, every person has the right to come to Washington and petition his Congressman, or petition the Congress. I do not think that they should be permitted to remain here on public property and suppress the orderly procedure of the government.

Mr. WHITENER. Mr. Winn?
Mr. Winn. No questions.

RIGHT OF APPEAL

Mr. WHITENER. Mr. Fountain, we have here a report from the District Commissioner's office on this legislation in which some objection is expressed as to the enactment of this legislation. And they say in this report that one of their objections is that the bill does not spell out any avenue of appeal for the applicant from the decision of the official or employee if he decides that a bond is required, and the exercise of discretion by the District official is involved. As they interpret the legislation, this would deprive a citizen of any remedy at law; at, least, that is my interpretation from a hurried reading of the report.

Is that not a rather nonsensical statement in the light of the cases that are now on the books, the decisions of the Supreme Court, such as in the Birmingham case and many other cases where citizens have gone to the highest court in the land to raise constitutional questions as to the validity of local ordinances?

Mr. FOUNTAIN. I quite agree with you, Mr. Whitener. We provide for appeals in cases of this kind, I am satisfied, on the basis of the opinions of the Supreme Court; at least, the present Supreme Court with which we are familiar, that anyone who appeals from an arbitrary or capricious order of any kind in connection with a matter of this kind will have no difficulty in getting a determination made by the Supreme Court. I think that the court in recent years has exercised maybe discretion when they did not really have statutory authority many times to consider matters which ordinarily might not have been considered. So I think the Supreme Court has gone far enough in recent years to satisfy anyone that if it wants to it will grant a person a hearing.

Mr. WHITENER. And there are other procedures available to an aggrieved citizen for redress.

FIRST AMENDMENT

I also note that the Commissioners say that in some way it is an infringement upon the constitutional right of the citizen to peacefully assemble as guaranteed by the First Amendment to the Constitution if the Congress enacts some statute, this one or any other one, which would prevent a mob taking over the streets of the city and depriving the rest of the citizens of the use of those streets. This is my interpretation of their report, where they say, "While the object of the bill is to relieve the District government from bearing property damage and other costs arising out of a parade, march, demonstration, or other assemblage, it raises a constitutional question as to whether the bill infringes on the right of peaceable assembly guaranteed by the First Amendment.”

As I read your bill, the public official issuing the permit must first determine that such parade may cause property damage or disorder which would constitute a breach of the peace.

Is there anything in the Constitution, the First Amendment or any decisions by the courts that says that a governmental party cannot avoid breaches of the peace and damage to property?

Mr. FOUNTAIN. I know of none. As a matter of fact, there are numerous sections for placing certain limitations and restrictions upon the exercise of the rights of citizens. We have riots but we also have responsibilities, and it seems to me that in too many instances we have permitted the concentration effort towards the protection of the right of an individual without taking into account the right of collective society, of the vast majority of the citizens.

Mr. WHITENER. The First Amendment to the Constitution says, in part, that Congress shall make no law respecting an establishment of religion or abridging the freedom of speech or press, or the right of the people peaceably to assemble and to petition the government for a redress of a grievance. Is there anything in this legislation that would seek to infringe upon the rights of the people peaceably to assemble?

Mr. FOUNTAIN. I see nothing in it.

Mr. WHITENER. Is there anything in it which would, in any way, infringe upon the rights of the people to petition the government for redress of grievances?

Mr. FOUNTAIN. I see nothing in it. The only thing that I can envision there is a possibility of a complete abuse of discretion on the part of an individual for which the person petitioning would have a right to take the matter up and have it reviewed. If that was true in this case we would have little trouble in passing legislation placing reasonable restrictions or requirements upon the individuals

in the exercise of their rights to petition.

PRECEDENTS FOR LEGISLATION

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Mr. WHITENER. I note that in the 89th Congress, on behalf of the Shriners the Congress enacted into law, Public Law 89-514 (H.J. Res. 1178, approved July 19, 1966). I remember the hearings on it, and the testimony of some of the witnesses who participated in writing the Commissioners' report on this legislation urging that we enact that bill into law, that was done. That bill gave to the Shriners Convention the right to hold their meetings and to parade here in the District of Columbia. While I will not undertake to read all of it, I note that it has a provision in it as follows:

The corporation shall indemnify and save harmless the District of Columbia, the United States, and the appropriate agencies of the United States against any loss or damage and against any liability whatsoever arising from any act of the corporation or any agent, licensee, servant, or employee of the corporation. This is what we did to the Shriners, and we required a bond of them.

The American Legion had a convention here, and we passed Public Law 89-25 (H.J. Res. 195, approved May 22, 1965), which said:

And the corporation shall indemnify and save harmless the District of Columbia, the United States and the appropriate agencies of the United States against any loss or damage and against any liability whatsoever arising from any act of the corporation

or any agent, licensee, servant, or employee of the corporation. And, further:

The corporation shall give a good and sufficient bond for the safe return of such property in good order and condition, and the

whole without expense to the United States. That is what we said about the American Legion. The same language applied to the Shriners; were required to see to it that the property that they used and "such structures, stands and grounds that they use shall be restored to their previous condition.”

And the Shriners who have contributed so much to the welfare of this Nation were required to give a bond in order to have a meeting in the Capital City of our Nation—which was required of them to give assurances that they would restore the public property to its former condition.

Can you visualize any sane reason for contending that should not be required of any other organization or group?

Mr. FOUNTAIN. I certainly cannot.
Mr. WHITENER. Thank you very much.

94-293_-68_10

Mr. FOUNTAIN. Thank you, Mr. Chairman.

Mr. WHITENER. Our next witness is Congressman Albert Watson, of South Carolina, who is the co-author of H.R. 16941. We are delighted to have you with us, Mr. Watson. We will be glad to hear from you now. STATEMENT OF HON. ALBERT W. WATSON, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF SOUTH CAROLINA Mr. Watson. Thank you very much, Mr. Chairman and the subcommittee and, also my distinguished fellow South Carolinian, Mr. McMillan, chairman of the full committee, and members of the subcommittee. I am delighted to be here.

Frankly, I do not exactly understand the legislative position that we are in now. I guess it is typical of the whole situation confronting the Nation's Capital that no one knows what is coming next or what we should do in order to try to bring about some order on this.

remember just a week ago that the able chairman of this subcommittee and I both testified before the great Public Works Committee of this House in reference to a similar bill requiring the posting of a bond by any group which plans a parade and/or demonstration in the Nation's Capital. I understand that that committee has reported out a bill. However, nothing has been done subsequently thereto to get a rule on that bill, so that it might be presented to the House and then over the weekend I understand that one of the members of that committee has charged a breach of faith on the part of the agreement which purportedly had already been entered into.

Whether or not we are here with this hearing again in more or less of an exercise in futility, I do not know, but I want to commend the committee and, certainly, it is our responsibility as elected officials of our respective districts in having the ultimate responsibility for the safety of the District of Columbia, the Nation's Capital, that we do whatever we can to try to keep the peace here and to make it available for the enjoyment of all of the citizens of the District.

And I say parenthetically now that it is a sad day where we have experienced the receiving of messages from people back home, from groups of students, high school graduates, who, normally, look forward to a pleasant visit to the Nation's Capital, that because of all of the unrest that we have and the problems confronting us that these youngsters are going to be denied one of the pleasures they have always looked forward to as high school graduates. Be that as it may, these youngsters, I guess, will have to forego their rights as American citizens to come and enjoy the Nation's Capital because of the threats that are now being voiced and that are now existing in this Nation.

Frankly, anyone would take notice of the fact that we are in a very tense situation. I believe the city officials have expressed the fact, including the Mayor himself, that we do still have a tense situation existing as a result of the riots of a little more than a month ago.

a I believe that the fire department can verify this fact, that arson continues in the District of Columbia ; in fact, this past month it was up 100 per cent over the previous period one year ago.

And under this tense and potentially explosive situation I take the basic position, Mr. Chairman and members of the committee, that certainly this demonstration should not be permitted. We are reasonable men. We face up to the facts of life. We are not dealing here in the normal procedure or with normal matters at all.

PRECEDENTS FOR LEGISLATION

Just as the Chairman pointed out a moment ago, when the Shriners wanted to use the Nation's Capital they had a special bill passed by this Congress to permit them to do so. And as was pointed out here it required the Shriners as well as the American Legion, and even requiring the Boy Scouts, that they give good and suflicient bond to indemnify the District of Columbia for any damages which might be sustained.

That is the orderly way for this thing to be done. However, we all know that we are not dealing with people who subscribe to the orderly processes of government. In fact, the leader of this particular demonstration has stated publicly that we, the members of Congress, Mayor Washington, nor anyone else in this Nation, will stop him by laws or in any other way. And the sooner we recognize that fact, then I think we will be able to deal with these people in the necessary manner.

As Mr. Friedel pointed out a moment ago, and I strongly support his bill, to try to force the District of Columbia to remove these partially destroyed buildings, as a result of the riots of a month ago, frankly, I think it is the city's responsibility-I think it is a crying shame, as I understand it, that some of the owners of these buildings have been served with a notice by the city officials that unless they tear down these potentially dangerous buildings within a matter of twelve hours or so, some ridiculous time like that, then the city will move in and tear them down and then charge them for the cost of doing so. We all

know that we have a number of people even here in the District of Columbia and other cities who have been the victims of riots and of riotings, who are now pursuing causes against the city governments. In my judgment I think those causes well lie if there is shown that the city administration did not use adequate force to suppress the rioters.

Secondly, and this is the thing that disturbs me so greatly, if a permit is given this group to demonstrate and/or parade as they plan here in the District of Columbia, then I believe of a certainty, as a lawyer, that the city will be held responsible for the consequences of granting that permit.

I know that elaborate plans have been made and they are rather vague as to the plans for the protection of the citizens of the District of Columbia and the visitors who come into the Nation's Capital. Certainly they are not as vague as the plans of the demonstrators themselves. I think personally they do not know exactly what they want. If they wanted, their leaders to prevent a legitimate request or a grievance to their government or a petition, I understand they had that opportunity earlier. A group of them headed by the principal leaders came up here and presented their demands from the highest exec

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