« ForrigeFortsett »
ments, labeling, and use of unfair names and advertising in papers and over the radio, are highly important projects which go to the very kernel or crux of the bill. For that reason I do believe there ought to be public hearings prior to the promulgation of these rules and regulations by the administrator.
Again, keep in mind the fact that the F. A. C. A., during the term of its existence, issued changes and amendments in regulations which were practically legion. I shall put into the record a schedule of changes, revisions, and amendments promulgated from time to time by the Federal Alcohol Control Administration. You can readily see by a mere perusal of them that they were extremely frequent, and caused considerable changes in the industry.
I do believe, therefore, in a matter as vital as this, that there ought to be notice to the industry and to those who are interested, so that they might participate in the deliberations and aid and assist those in control prior to the promulgation or publication of these regulations.
Mr. COOPER. Did you ask permission to put something in the record ?
Mr. CELLER. I should like to have permission to put this in the record.
Mr. COOPER. That looks like a pretty good sized volume. I think copies of the regulations of the F. A. C. A. would be available for the committee.
Mr. CELLER. These are in a very convenient way tabulated, if you wish them.
Mr. COOPER. I object to all that going into the record, Mr. ChairMr. CELLER. It is perfectly all right, sir.
Mr. COOPER. It is available to all of us. There is no need of printing it when it is already printed, and they can hand it around to us.
Mr. CELLER. I draw your attention, gentlemen, to page 7, on the matter of permits. I believe that the language relative to the power of the administrator to grant or withhold the permit is very vague, and would permit at times of arbitrary rulings. I do not say that there would be arbitrary rulings, but it would permit of arbitrary rulings because provision is made that no one can receive a permit if, for example, in the opinion of those who have the power of bestowal of the permit he has not the proper business experience, financial standing, or trade connections, and is not likely to commence operations within a reasonable period, and may not conform to the Federal statutes.
If you examine the Volstead Act, which was a very drastic act, there were no such rigid restrictions as to the bestowal of a permit. I draw your attention to title II, section 3, of the Volstead Act, wherein you will find that anyone could apply for a permit as a wholesale druggist or a retail druggist or a manufacturer of alcohol, and there were no such restrictions. It was given to the Commissioner who has charge of the permits to grant them rather freely, even in the restricted period of prohibition. Therefore I believe that in this wet era we should not put such stringent restrictions around the granting of permits.
Mr. WOODRUFF. You may not find anything in the Volstead Act 'which permitted the Commissioner to exercise the authority that is
proposed to be given here; but I want to say to you that to my personal knowledge it was the practice to give or withhold permits or licenses whenever in the judgment of the Commissioner that was the thing to do.
Mr. CELLER. There is nothing in the statute to that effect. It may be that that may have been the practice.
Mr. WOODRUFF. That was the practice.
Mr. CELLER. He was given the permit; then, if he did anything wrong, he was cited for revocation and the matter was heard.
Mr. WOODRUFF. I repeat that to my personal knowledge there have been times when permits were refused when I could not see the reason for it.
Mr. CELLER. That may very well be.
Mr. VINSON. The permits for the manufacture of liquor in the prohibition days were very few, were they not? The permits for distilleries in prohibition days were very few?
Mr. WOODRUFF. I think they were. I think that is correct.
Mr. WOODRUFF. I am not referring now to distilleries that manufactured whisky. I have reference to permits to manufacture alcohol.
Mr. VINSON. I feel certain that, if I recall correctly, as to the manufacturing of medicinal spirits—Dr. Doran is here to check meat one time there were only four permits outstanding. Is that correct, Doctor?
Dr. DORAN. Very few-4,5, or 6.
Mr. CELLER. But there were a great many wholesale permits and other types of permits.
I draw your attention, gentlemen, to page 9, subdivision (f), relative to the sale-in-bulk proposition.
Mr. McCORMACK. May I say this in regard to page 7, that I think you have placed a construction upon the language that the committee-I know some of the members of the committee, at least-never intended. They did not want to have too drastic requirements, and they limited it to three directions.
Mr. CELLER. I think the matter should be more or less left in the discretion of the Administrator.
Mr. McCORMACK. I think that would be worse.
Mr. CELLER. Let him make his rules and regulations without embodying into the statute something as final as you have.
Mr. McCORMACK. I think that is worse, because we leave it to his discretion. He can do anything he wants to in that case. Now, he cannot refuse a permit if a man meets these requirements.
Mr. CELLER. I would be perfectly agreeable to that if you change your law with reference to what is called “ findings of fact.” Under this provision, when you have a finding of fact and an appeal is taken from that finding of fact, you cannot have a successful appeal, because the word of the Administrator under the language that you use is final, and there can be, for all intents and practical purposes, no successful appeal from that finding of fact. I will come to that in a moment. That is why I thought it would be better the other way.
Mr. McCORMACK. In other words, your argument is based upon the other part of the bill.
Mr. CELLER. I have to correlate them.
Mr. McCORMACK. I think if you will analyze this, Mr. Celler, you will find that this is a limitation of the power of the Administrator.
Mr. CELLER. I think the limitation is, as I said, very vague, and could permit of rather arbitrary rulings. For example, he must determine whether or not the man is of such a character that he would maintain such operations in conformity with Federal law. That is a very vague provision. I do not know what that means. It is difficult to comprehend.
Mr. MoCORMACK. I do not think there is much vagueness about that.
Mr. CELLER. You might read that carefully, and you will see, sir.
Mr. MoCORMACK. I will ask for further time, because your 10 minutes has been encroached upon.
Mr. CELLER. On the matter of sales in bulk, I draw your attention, gentlemen, to the Taxing Act of 1934, which requires, as you may remember-and the bill originated in your committee—what are called “strip stamps.” Under this provision, subdivision (f), a wholesaler could sell from a barrel, he could bottle, and he could draw the stuff from the barrel and fill bottles. As I understand it, that original act did not apply to wholesalers. You will have to put something in your act or amend the old Liquor Taxing Act of 1934 so as to make it consistent with the use of these so-called “strip stamps" by wholesalers.
The same, I think, would have to apply to a retailer. Under this act, if you allow the retailer to have goods in bulk-mind you, I am not expressing any opinion one way or the other as to the efficiency of sales in bulk-if you allow, however, the retailer to purchase a barrel of goods, he must then put in the spigot and withdraw therefrom a sufficient quantity to fill hundreds of bottles. What are you going to do with the retailer with reference to these strip stamps ? Again, what are you going to do with the so-called "blown-inbottle" law? You will have to change this provision.
Mr. VINSON. As a matter of fact, does not the statute say that this strip stamp shall be placed upon each and every container?
Mr. CELLER. I believe it says that, but there may be some doubt about it. If you go, for example, to a supervisor-you are a retailer or wholesaler—and you ask to be permitted to purchase strip stamps, he will say, “ You are supposed to have your bottles already with the strip stamps on.”
So I believe something must be done with reference thereto. I discussed the matter with the Treasury Department as late as this afternoon. They seemed somewhat in doubt about the subject. I leave that for your consideration.
On the matter of appeals, which you find on page 11, I do hope you will give very serious attention to that proposition, gentlemen. If one feels aggrieved and he takes an appeal, you deprive him of the right of going to the district court. You make him go to the Circuit Court of Appeals.
Let us see what the effect of that will be:
I have here, for example, the official register of the United States containing the places where these courts are. You will see from a
perusal of those places that you are going to place a great hardship upon the man who feels aggrieved. For example, take the fifth circuit
. The fifth circuit comprises the States of Alabama, Florida, Georgia, Louisiana, Mississippi, Texas, and the Canal Zone. A man who is aggrieved, say, living in Miami, would have to go clear over to New Orleans to get his case heard. A man in El Paso, Tex., would have to also to New Orleans. Whereas I think it would be more appropriate and fair to that person that he be permitted to go to the district court in his own district and have his case heard there.
Mr. Vinson. Has the gentleman ever studied the constitutional condition that obtains in going from an order of an administrator on a record into the Federal court?
Mr. CELLER. I am quite familiar with it.
Mr. CELLER. I think he has a perfect right to go to the district court, because you gave him that right in the Volstead Act.
Mr. Vinson. We have been told that there is a constitutional barrier against taking an appeal or seeking a review from an order of this character in the Federal court; and I would like to call this to your attention: That if you could constitutionally go into the Federal court—the Federal district court is, of course, what we are referring to when we say “ Federal court
Mr. CELLER. Yes; I understand.
Mr. Vinson. In the first instance that would simply mean you would have just one more court to go
into. Mr. CELLER. That would be perfectly all right.
Mr. VINSON. Because if you tried the case in the Federal court, then you would have to appeal to the circuit court of appeals, and from the circuit court of appeals to the Supreme Court; whereas if you would go into the circuit court of appeals in the manner presented here in this bill you would save one step.
Mr. CELLER. I realize that it admits of argument on both sides. I am simply presenting my personal point of view on the subject.
Mr. VINSON. You have to travel as far to get to the circuit court of appeals when you appeal from the district court, as you would if you were traveling there in the first instance.
Mr. CELLER. It may be you do not have the money to go to the circuit court of appeals, and you may want to go to your nearest court, the district court.
You had a very elaborate permit system which emanated from the Judiciary Committee, during the Volstead era, and, for example, there was always the appeal from the order of the administrator, just as you have an appeal from the order here of the administrator to the district court, the court in the bailiwick, as it were, of the man who had the permit, the permittee. You had a complete code, as it were, a complete course of procedure, well defined, well marked out by hundreds, yea, verily, thousands, of cases under the Volstead Act. I think it would be improper to disregard the experience that has come out of the Volstead era with reference to the permits and appeals to the district court.
I was told that this would expedite the situation, but let us see what has now happened in New York:
In a few days the circuit court of appeals goes on vacation. They will not resume their deliberations until next October. What is a
man going to do in the summer time when there is no court to which he can take his appeal? He has to wait. The district court is always open. He should always have that right to go to the district court to have his case reviewed.
Mr. Vinson. He can come to the Supreme Court of the District of Columbia.
Mr. CELLER. Would you want to go from Tacoma, Wash., to the District of Columbia ? You would not want to do that; or from Bangor, Maine, or from other parts of the country.
Mr. Vinson. He might want to. In any event, it is better to go to the circuit court then the Supreme Court of the District of Columbia, as originally proposed.
Mr. CELLER. That is unfair to put that burden upon the permittee. He feels that some injustice has been done to him. It would be wrong,
Mr. McCORMACK. That is what they wanted us to do in the first instance, Mr. Celler. That is what they wanted in the original recommendation.
Mr. CELLER. I will ask you to search any statute we have ever passed relative to appeals, and I will ask you to find whether or not under similar circumstances there has been a requirement that the man must go to the Circuit Court of Appeals. You do not find anything like that.
Furthermore, I will ask you to look through all your records and all the statutes, and ask you whether you will find anything like this, that the finding of the administrator as to the facts, if supported by substantial evidence, shall be conclusive. I have searched and searched, since I have seen this bill, to find any such provision, and I say that if you keep it in—and I say it as one who has studied these propositions as a member of the Judiciary Committee-you will be doing something highly unfair. I doubt very much whether it would stand the test of any court. You would destroy the efficacy of the appeal, because what the Administrator would say with reference to all matters which constitute a code, with reference to the granting or withholding of permits, on good grounds or “coffee grounds", would be absolutely abortive, and you would give the permittee an empty right. I ask you, gentlemen, to think twice before you leave that provision in the statute.
As to the district courts, you provide penalties. You do not make the man have his penalty heard in the Circuit Court of Appeals.
On page 21, section 6, you provide a remedy for the criminal prosecution in the district court, and second—I want you to give thought to this, gentlemen-you are probably involving the man in double jeopardy. You not only take his permit away from him if he is guilty of some violation, but you also make it possible for him to be prosecuted criminally, to be fined upwards of, I think it is, a thousand dollars, and to be liable to a year or so in jail. That must be given some very careful consideration.
Furthermore, I believe section 5, which is the code, as it were, is matter that should be left more to regulations. I think the matter should be more or less flexible. If you are going to keep all these detailed provisions with reference to commercial bribery, with ref