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pinion is that the Federal corporation charter method is preferable to Federal license, and that while the former cannot be attacked on constitutional grounds, the latter is probably subject to attack on those grounds. To deal with the matter of Federal incorporation, it is recommended that a Federal Corporation Commission be established to deal with the corporate matters in much the same manner as the State corporation commissions deal with such matters.
FEDERAL CORPORATION COMMISSION
My recommendation is that a Federal corporation be created by act of Congress and established under the control of the General Accounting Office. From close association with Government bureaus and departments from within and without, the writer is convinced that the General Accounting Office is the only governmental agency not subject to "wire pulling”, and for that reason it is recommended that the commission be established under that agency. It is not considered that the functions now vested in the Securiteis Exchange Commission should be taken away in any sense of the word.
The susceptibility of the Federal Power Commission and the Federal Trade Commission to political wirepulling and to the socialistic views of inexperienced theorists who have been inoculated with the Government-ownership complex, disqualifies these agencies from having control of the activities proposed by the pending bill.
None of the powers vested in the Securities Exchange Commission would be interfered with, and the matter of the use of mails in connection with the sale and distribution of securities would remain in the hands of the Post Office Department where it is now established by law.
The Federal corporation commission should not be limited to charters and corporation work for public-utility companies alone, but have the power to deal with all classes of business where the interstate nature required a Federal charter. As it is now, such charters are granted by private or special acts of Congress every session.
There can be little doubt but what Congress has the power to create such an agency to issue Federal charters. The Congress has a certain mount of power in connection with the establishment of agencies to carry out its intentions as has been evidenced by its acts for nearly a century and a half.
In passing on the right of Congress to create corporations, Chief Justice John Marshall said (Lexington v. Bridge Co., 153 U. S. 525):
"The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to the other power, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished.
In creating such a commission, the activities should be clearly defined so that the rights of the individual States would not be infringed. In adopting the Constitution, the people of the several States were very chary in surrendering rights to the general Government, and the rights not specifically surrendered by the Constitution were reserved to the States. This is set forth in. Kansas v. Colorado (206 U. S. 46) where the United States Supreme Court said:
“The Government of the United States is one of enumerated powers; that it has no inherent powers of sovereignty; that the enumeration of the powers granted is to be found in the Constitution of the United States, and in that alone; that the manifest purpose of the tenth amendment to the Constitution is to put beyond dispute the proposition that all powers not granted are reserved to the people, and that if in the changes of the years further powers ought to be possessed by Congress they must be obtained by a new grant from the people." The limitations of the Federal Government were further set forth in the
case (234 U. S. 548–560), where the court said: "The control by Congress over interstate commerce cannot authorize the exercise of authority not intruested to it by the Constitution. The maintenance of the authority of the States over matters purely local is as essential to the preservation of our institutions as is the conservation of the supremacy of the Federal power in all matters intrusted to the Nation by the Federal Constitution.” (See Lane County v. Oregon, 7 Wallace 71, 76; New York v. Milne, 11 Peters, 102, 139; Slaughterhouse cases, 16 Wallace 36, 63.)
Particular care should be taken in setting up the proposed commission to see that its scope does not exceed the constitutional powers. Within the past
few days, in a hearing before the House Military Committee, a director of the Ten
nessee Valley Authority expressed the opinion that a toll could be levied on traffic passing through Federal-built locks on the Tennessee River, though in his opinion such toll would be much less than an equitable return on the investment in navigation facilities. Had this director been better informed, he would not have committed the error cited. The sixth section of the act of Congress passed March 2, 1819 (3 Stat. 492, c. 47), admitting the State of Alabama into the ['nion, provided:
“That all navigable waters within the said State shall forever remain public highways, free to the citizens of said State and of the United States, witbout any tax, duty, impost, or toll therefor imposed by said State." This was cited by the United States Supreme Court in the case of Pollard v. Hagan (3 Howard 212, and was referred to and affirmed in the case of Goodtille v. Kibbe (9 Howard 471).
There has been a growing tendency in later years for the Federal Government to encroach on the rights of the several States, and that is why care must be exercised in framing such an act as is now under consideration. While encroachment on the rights of the several States under the guise of the "commerce" clause of the Constitution may not be immediately challenged, yet the challenge may be invoked at any future time. When the Revolution came, the people of the several States became themselves sovereign, and in adopting the Constitution did not surrender their general sovereignty. For that reason the maxim of “nullens tempus occurit regni” is as app.icable to the rights of sovereign States as to the General Government.
INVASION OF RIGHTS OF SOVEREIGN STATES
One of the most flagrant invasions of States rights, and which the pending legislation seeks to uphold in section 9 (b) is to be found in Public Act No. 17, Seventy-third Congress, otherwise known as the Tennessee Valley Act of 1933. Under the vague and uncertain terms of this act, the Directors of the Tennessee Valley Authority have set about building up an empire which transcends State lines, State rights, and the rights of individuals, and under which the Board or Authority has embarked on a gigantic power program, the cost of which has been estimated by the Corps of Engineers of the United States Army to exceed $1,200,000,000—this being done under the thinly disguised plea of navigation and national defense.
The pending bills (S. 1725) and the House bill (H. R. 5423) seek to further the idea of such an empire by specifically eliminating such an agency from the provisions of section 9 (a) of the bill.
In setting up this “empire” which has embarked on a general campaign of power production and sale, operation of retail stores, operation of factories, and in fact anything in the line of industry which the directors see fit to take up, the “Authority” has assumed itself as having autocratic powers without any restraint, whatever. This “Authority" has assumed itself to be an independent bureau of the Federal Government with the powers of Federal sovereignty, an assumption which has no foundation and is subject to challenge. The fact that agencies created by congressional incorporation are or may be financed from public funds does not make such agencies either bureaus or departments of the Federal Government, and for that reason such agencies do not acquire any powers of sovereignty, and have no rights or powers other than specifically conferred by the act of Congress, and which powers are subject to attack on constitutional grounds where same transcends the rights surrendered by the several States to the Federal Government by the Constitution,
While the act purports to give the Tennessee Valley Authority to exercise the right of eminent domain, it is questionable as to whether or not Congress had any such right of delegation of that power. A case has been recently filed in Alabama which will test this question. "The Tennessee Valley Authority filed a suit to condemn lands to be used for a road in the vicinity of the Gen. Joe Wheeler Dam. This action is being resisted by the owners of the land on constitutional grounds. The road in question is not one that is involved in interstate commerce, and on the contrary is in connection with a project for the development of electric power for sale for profit. The genertion of power and the incidentals thereto such as the construction of roads, is not within the scope of the powers under the commerce clause of the Constitution, and even if it were, the Tennessee Valley Authority has no standing under either the Federal or State laws, by which it can exercise the rights of a sovereign entity, regardless of the Tennessee Valley Act of 1933.
Congress authorized the Corps of Engineers to make a detailed survey of the Tennessee Valley area, which was performed at a cost of approximately $1,000,000 and on which a very complete report was made (H. Doc. 328, 71st Cong.).
This very complete report destroys the contention of the Tennessee Valley Authority that the main objects of this “empire”, which has no regard for State lines, or the rights of the States and their citizens, are (a) navigation, (b) national defense, and (c) soil erosion.
The Corps of Engineers shows that flood damages on the Tennessee River are small, and that complete regulation would have little or no effect on the floods of the Mississippi Valley; that soil erosion is much less than in many other sections of the country, and that soil erosion, such as it is, comes from abandoned lands. The report referred to would indicate that of the hundreds of millions of dollars necessary to carry out the scheme of the Tennessee Valley Authority, a maximum of $35,000,000 would be chargeable to navigation. The flood-control feature is exploded by ths same report.
The report also shows that outside of the Wilson Dam and the Hales Bar Dam, if navigation was the main feature, a 9-foot channel from the Ohio River to Knoxville could be established by the construction of 32 low dams at a cost of $75,000,000. The Tennessee Valley Authority which has embarked on a $320,000,000 program in exactly the same river area, would get nothing more from a navigation, food-control, or soil-erosion standpoint, than would be obtained from the construction of the 32 low dams.
The intent of an operation is clearly indicated by what it does rather than what is put out in the propaganda issued, therefore regardless of the speeches and press releases of the Tennessee Valley Authority, the production and sale of electric power is the paramount issue in the Tennessee Valley, and for that reason the program is outside of the powers surrendered to the Federal Government by the Constitution.
Considerable stress has been laid on the corporation created by Congress in the Tennessee Valley Act of 1933, to emphasize the necessity of keeping within constitutional bounds in the enactment of holding company legislation.
Section 9 (b) by eliminating certain agencies from the stipulation imposed on private industry by section 9 (a) sets up class legislation with powers to entirely destroy private public utilities without due process of law, and for this and other reasons, the act as written could not be sustained under the Constitution.
DESTRUCTION OF UTILITY HOLDING COMPANIES Section 2 (c) provides for the complete elimination of holding companies after 5 years from the passage of the act. This feature should be discarded, and regulatory provisions enacted in place of destruction. As has been pointed out previously, it is clear that the intent of the authors of pending legislation is to bring about a condition which will force ownership and operations of public utilities into the hands of the Federal Government. In other words the main question is not a matter of rates or service, but unquestionably a move for Government ownership and operation, which is the first step toward a socialization of the industries of the country-a la Russia.
Instead of destruction, Federal regulation of interstate business might well include the following features:
(1) Federal incorporation for interstate business.
(2) Elimination of pyramiding of companies, under which any company more than once removed from operating company status, would have to justify its existence.
(3) Elimination of interlocking directorates.
(6) Provision for larger representation on boards of directors by operating companies.
(7) Change of designation of "economically and geographically integrated" system, to provide for "economically integrated” systems.
The use of the term "geographically integrated” cannot be sustained. The writer recalls the skepticism with which the statement, that power had been transmitted 50 miles, was received some years ago. Now 250-300 miles is considered as a matter of course. The writer designed a large project which required power to be transmitted 675 miles, a feature which was not at all disturbing even 12 years ago. What would be geographically integrated” system this year will in all probability be a joke a few years from now, consequently no such provision could be inserted in legislation in an intelligent manner.
(8) Should provide that by the end of 5 years, holding companies shall be so organized as to meet the regulatory requirements of the act.
(9) All utility companies, regardless of whether the financing is done through private or public sources, should be subject to the regulatory provisions of the act when engaged in interstate business.
REGULATION OF VARIOUS CLASSES OF PUBLIC-UTILITIES AGENCIES Section 2 (c), title I, provides that any form of agency of the United States, State, municipality, or other political subdivision engaged in the public-utility business, shall be exempt from the provisions of this act. This is perhaps the most vicious provision written into the pending bill. This paragraph should be eliminated, leaving such agencies subject to the same regulatory provisions as are required of the public-utilities companies. With the agencies mentioned being eliminated from the regulatory provisions, they would have so many advantages over utility companies privately owned as to force the latter out of business, thus forcing the socialization of the electric-utility business. Some of the advantages such agencies would have over the privately owned utility companies, are as follows:
(1) Money obtained at low interest rates on tax-exempt securities. (2) No taxes to pay. (3) No insurance to carry. (4) No workmens' compensation insurance to carry. (5) No financing expense. () Preferential rail rates from land-grant railroads. (7) No accountability or responsibility for funds expended. (8) No interest or dividends to stockholders. (9) No established system of accounting. (10) Fictitious capital set-ups under which large amounts of capital are charged off under allegations of “navigation”, soil erosion, national defense, flood control, and many other schemes, as exemplified by the Tennessee Valley operations.
(11) Operation losses to be made up from public treasuries.
(12) Financing by taxation, and bonds which have to be taken up from public funds secured by taxation.
(13) Assistance of other Government agencies paid for by funds secured from taxation.
(14) Free mailing privileges under postal franks, postal deficits made up from taxes.
(15) Establishment of rates without regard to any established basis of rate making as faced by the privately owned utilities companies.
The average cost of money for private utility operations for a number of years has ranged around an average of 5.5 percent. This would give governmental agencies an advantage on money alone of not less than 2 percent, and when coupled with the fictitious capital set-ups as is shown by the Tennessee Valley, the advantage over the privately owned companies would be in excess of 4 percent on finance alone. Privately owned utility companies have testified to the effect that if they had the financing facilities which are provided for Government agencies, existing power rates could be reduced 40-45 percent, which is not overdrawn.
Laying aside the question of the power which is transmitted across State lines, the bulk of all energy sold is sold on rates established under State regulation. These rates are based on a fair return on investment, whereas the pending bill seeks to place rates made by other than privately owned utilities on any assuined basis desired, without regard to actual capital costs. By a process of camouflage from which the private utility is barred, the agencies excluded from the regulation prescribed in section 2 (a), can fix rates and then set up a fictitious capital set-up to fit the rates. That is exactly what the Tennessee Valley Authority did, and which the pending bill would not only perpetuate but further.
The testimony before the House Interstate and Foreign Commerce Committee, and the House Committee on Military Affairs, shows very definitely that the Tennessee Valley Authority is a holding company, and undoubtedl, tbe worst of its kind by reason of the fact that it is subsidized from Federal funds.
With the methods of financial juggling as regards capital set-ups, and the charge ing of expenditures to purposes other than those to which they properly belong, the Tennessee Valley Authority is not even a “noble experiment."
The pending bill by excluding the Tennessee Valley Authority, as well as all other agencies of a like nature, from the provisions of section 2 (a) seeks to per. petuate the existing practices and to validate them. All organizations or agencies engaged in public-utility business, regardless of whatever class or kind, should be placed on an equal footing, and without Government subsidies.
USE OF MAILS IN CONNECTION WITH FINANCING
The very volumnious language in the bill in connection with the use of mails in selling and distributing securities, is useless and superfluous, as the postal laws in effect cover everything necessary, and the incorporation of same in this bill is merely a useless repitition and adds nothing whatever. A large amount of the language used in the pending bill has also been copied from the Securities Exchange Act, and again the inclusion in this bill would be merely useless repetition.
ELIMINATION OF TITLE II There are some parts of title II which might be properly incorporated in title I, but the whole of title II as it stands should be stricken out. The general tenor of this title is to amend the Federal Water Power Act. Quite likely the Federal Water Power Act should be amended as a whole, but this should be done by rewriting the act as a whole and not attempting to patch it up as a part of some other legislation.
A national water power act was under consideration for many years before the existing act was passed in 1920. The Federal Water Power Act was poorly written in spite of very voluminous hearings held on the subject for a decade or so, and for that reason the entire bill or act should be rewritten, though not with the idea of writing it so as to embark the country in a highly socialistic venture such as is now being sponsored by a number of Federal bureaus.
Due to the recommendation that title II should be stricken out, the features of this title are not discussed.
GAS AND ELECTRIC UTILITIES OPERATIONS
Theoretically, to men with little or no practical experience, it might appear that no valid reason exists for gas and electric utilities coming under the same general control by holding companies.
Gas is a rather highly seasonable utility, and without the administrative and overhead expense being shared by other agencies during the season of low demand, rates would necessarily be higher.
Coal and ice business combinations are logical and beneficial to the public, as both are highly seasonable projects and the demand for ice comes during the season when the demand for coal is at the minimum.
Due to the seasonable features of gas and electricity, there can be little or no valid objection to the operation of these two classes of utility under a common management.
It is an acknowledged fact that there is a somewhat complex situation found in the directorship of various holding companies, and it is not apparent just how much "evil" results from this situation. Testimony has shown that a large number of directors of various companies do not function as such, and in fact many directors are on so many boards spread over wide areas that attendance even in a majority of cases would be physically impossible. This is a situation which should be remedied.
In at least one large holding company, it appears from data available that the officers and directors to whom the stockholders have intrusted the management of the operations of the company, are nothing more than figureheads, the duties presumed to be vested in these officials being turned over to a so-called "management company.” If the officers and directors are unfitted and incapable of managing the business of the company, they should be eliminated.
While there may be and probably is some good in some of the management and service companies, the whole practice is questionable and should be radically modified or eliminated altogether. The Federal Trade Commission has reported cases where the duly elected officers and directors of companies had turned the management over to management companies, and these management companies had in turn passed the management along to another “management” company at about one-third of the cost, so that as a result the “parent" management company received large fees for no services whatever.
Ownership by one holding company of considerable amounts of voting stock in another holding company is a doubtful practice, though in some instances this