Mr. MICHENER. I think it was probably your logic and argument that convinced me that the Federal Government was safe in turning this money over to the States for administration or distribution because the Federal Government would retain the right to see that it was not spent politically by the States. If that is true, do you not find yourself in a position where this money was spent politically? Mr. JENKINS. If it be paid now, it will not be spent politically. Mr. CELLER. I am thoroughly in sympathy with your plea. It is in my mind a question of procedure. That matter baffles me personally. Suppose we provide a forum in which you could try this matter; suppose we pass a bill to empower the Court of Claims to hear this matter; what is to prevent you from receiving proper treatment there?

Mr. TOLAN. If we should clothe the Court of Claims with jurisdiction to hear this matter, would it not be limited by present law? Mr. JENKINS. Yes.

Mr. CELLER. As I understand, you feel that even though you should be provided a forum, you would have to go back to the Social Security Act, section 4.

Mr. JENKINS. Yes; we would have to go back to the Committee on Ways and Means and make the law retroactive where the Board failed to pay.

Mr. BARNES. Would that not be a bad precedent?

Mr. JENKINS. As I started to say, the Congress is the repository of the power of the people. The Congress will always be what the people want it to be. Let us say that when a thing like this happens it is nobody's fault. Then the Congress will so find. Suppose we grant that it is somebody's fault, as the Board claims in this case; I say that even then the penalty inflicted in this case is too great. It is punitive. It is clear out of proportion to the failures even if they

were numerous.

We on the Ways and Means Committee felt that these grants of money should go directly to the States; and it should go to them. All I am asking now is that you provide this amount for the 1 month, October 1938.

Mr. ROBSION. If your case went to the Court of Claims it would resolve the Social Security Act and all the other laws in favor of the United States Government, because whenever we pass these laws and depend upon Federal contributions, unless you change the law, you could not win in the Court of Claims, because we have vested in the Social Security Board the right to say when these old-age assistance grants should be withheld.

Mr. JENKINS. If you would send us to the Court of Claims we would be no better off. We are coming to Congress, the peoples court, and asking relief on a deal open-and-shut case of right and justice.

Mr. CELLER. Is there any remedy that could be applied against any individual in this case?

Mr. JENKINS. Possibly the then governor.

Mr. CELLER. Was anybody else, except the Governor, involved? Mr. JENKINS. No; according to the Board they lay the blame on the Governor. Nobody was dishonest. The Board does not make

any claim against the Governor that he was dishonest. If the Governor did everything alleged by the Board, it would not amount to more than refusal or failure to cooperate. Let us assume that is correct. Then why should such a heavy penalty be invoked? They would not have inflicted this penalty if they thought it would continue. The whole history of the case shows they were in hope that it would be removed. They were ready to lend every assistance to remove it in October.

Mr. MICHENER. Let us return to the question of a remedy. I think we understand the condition that obtained in Ohio at that time. This money was withheld by the Social Security Board for the month of October 1938 and now the Board admits that it was improperly withheld. In other words, the Board is willing to pay if it has the authority to do so. If the report from the Board bears out that statement, or if we get a statement from the Board indicating this his money should be paid, I know no reason why a resolution in the House, or a joint resolution, could not authorize the Board to perform nunc pro tunc so far as this thing is concerned. If you go into the Court of Claims you are going to find yourself lost.

Mr. CELLER. I think the Court of Claims would raise the question. of section 4 of the Social Security Act; and the court would be powerless.

Mr. ROBSION. If the State of Ohio had been without fault, when the Board reported to the State irregularities and called the representatives of the State to a hearing to determine the issues, and the representatives of the State refused to come to such a hearing, the Board had the legal right to cut off the money for Ohio.

Mr. CELLER. Why was there refusal to attend a hearing? Was it stubbornness on the part of Governor Davey; did the legislature have anything to do with it?

Mr. JENKINS. No; the legislature did not have anything to do with the matter.

Mr. ROBSION. There was a quarrel between the Washington crowd and the State crowd?

Mr. JENKINS. Yes; I may add that the Legislature of Ohio, by a joint resolution approved January 24, 1939, memoralized the Congress to pass this bill. I have a copy of that joint resolution. Mr. CELLER. Please make it a part of the record.

Mr. JENKINS. It reads as follows:

[S. J. Res. No. 6]

JOINT RESOLUTION Relative to failure of the Social Security Board to pay Ohio its October 1938 quota of old-age pension funds

Whereas the Social Security Board of the United States failed to pay to the State of Ohio in October 1938 the share of the Federal Government's contribution to pay the old-age pensioners of Ohio, said sum being approximately one million three hundred and sixty thousand ($1,360,000.00) dollars, and

Whereas, in order that the old-age pensioners of Ohio might not want for the necessities of life, the State of Ohio out of its funds in the Treasury paid the share of the Federal Government and has never been reimbursed for such payment, therefore be it

Resolved by the General Assembly of the State of Ohio, That a formal demand should be and hereby is made upon the Social Security Board of Washington, D. C., to pay to the State of Ohio the sum of one million three

hundred and sixty thousand ($1,360,000.00) dollars approximately, said sum representing the share of the United States Government for old-age pensions in Ohio for the month of October 1938; and be it further

Resolved, That the Attorney General of Ohio should be and hereby is requested to prepare an opinion concerning the legality of the claim of the State of Ohio for the payment of approximately one million three hundred and sixty thousand ($1,360,000.00) dollars due for old-age pensions from the Social Security Board in October 1938; and be it further

Resolved, That a copy of this resolution be sent to the Social Security Board, 1712 G Street NW., Washington, D. C., and that a copy of said resolution be sent also to the Senators and Representatives of Ohio now serving at the National Congress in Washington, D. C.

WILLIAM M. MCCULLOCH,

Speaker of the House of Representatives.
PAUL U. HERBERT,

President of the Senate.

Adopted January 24, 1939.

I. Earl Griffith, secretary of State of the State of Ohio, do hereby certify that the foregoing is a true and correct copy of Senate Joint Resolution No. 6, filed in the office of the Secretary of State on the 26th day of January A. D. 1939.

Witness my hand and official seal at Columbus, Ohio, this 31st day of January A. D. 1939.

[SEAL]

EARL GRIFFITH,
Secretary of State.

Mr. MICHENER. Is there no appeal from the rulings of the Social Security Board?

Mr. JENKINS. There is not.

Mr. MICHENER. The rulings of the Board as to the act are conclusive?

Mr. JENKINS. Yes.

Mr. MICHENER. You may not appeal to any court in connection with your difficulty?

Mr. JENKINS. That is right, as I understand.

Mr. MICHENER. Even though the Board admits it made a mistake, it insists there is no way to remedy the mistake?

Mr. JENKINS. That is right.

Mr. CELLER. Does the Board admit it made a mistake?

Mr. JENKINS. I do not believe it does.

Mr. MICHENER. There is no way of helping except the right way. Mr. JENKINS. That is right.

Mr. MICHENER. We might provide a remedy that would be more difficult than the present condition, and you would not want that.

Mr. JENKINS. No; we simply want this money for October 1938. Mr. HANCOCK of New York. Does the Board take the position that it cannot reverse its action?

Mr. MICHENER. So far as the money is concerned, the Board closes each month after that month's payment. The Board has closed for October and has no right to include in any further draft something to cover the State of Ohio for October 1938.

Mr. HANCOCK of New York. The appropriation is an annual one, is it not?

Mr. JENKINS. Yes; the Board, prior to the beginning of each quarter, estimates the amount to be paid to the States for such quarter. In other words, the payments are handled on a quarterly basis. Mr. MICHENER. The Board cannot go backward.

Mr. JENKINS. If the law is interpreted strictly, the Board could not do anything monthly. The Board paid for November and December 1938, two-thirds of the quarter.

Mr. MICHENER. It settled with the Treasury of the United States for that quarter?

Mr. JENKINS. Yes.

Mr. MICHENER. And the books are closed so far as October 1938 is concerned?

Mr. JENKINS. Yes.

Mr. ROBSION. It has cut out October 1938 for Ohio and settled on that basis for the quarter.

Mr. HANCOCK. That is, then, purely arbitrary, is it not?

Mr. JENKINS. Yes.

Mr. CELLER. What could the Board have done?

Mr. JENKINS. According to the Board's letter, it tried in every way to get the officials of the State of Ohio to cooperate with the Board. The Board told the State officials that it would make available to the State the services of members of the Federal staff to assist the State in accomplishing the action that the Board considered to be necessary. After the Board made its findings September 29, 1938, it made every attempt to persuade the State to take action in effecting the necessary improvements so that it would not be necessary to withhold the grant for the month of October. Mr. MICHENER. After a check had been issued it would go to the Comptroller General for approval.

Mr. JENKINS. I suppose that would be the procedure.

Mr. CELLER. Is any representative of the Social Security Board present?

Mr. JENKINS. I do not know. I do not see the chairman.

Mr. ROBSION. Under the road-building law the Government can withhold a grant?

Mr. JENKINS. Yes; roads are for the general public. This is an entirely different matter. This money is due from the Government for the old people. Each recipient has a number, and he is carried by name. Each recipient has an equity in the installment coming from the Government.

Mr. ROBSION. Under the Social Security Act the Government refunds to the States one-half of the money paid out as old-age assistance.

Mr. JENKINS. Yes.

Mr. ROBSION. The Federal Government deals with the States and not with individuals.

Mr. JENKINS. That is right.

STATEMENT OF HON. JAMES SECCOMBE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. JENKINS. I request that the committee hear Representative Seccombe next.

Mr. CELLER. We shall be glad to hear the gentleman.

Mr. SECCOMBE. Mr. Chairman and gentlemen of the committee, I do appreciate this privilege of presenting my views to your honorable committee. Before coming to Congress I was mayor of Canton, Ohio, which is considered to be one of the large cities in what you might say is the second group of large cities in Ohio. As mayor

of this large city I had, of course, an opportunity to deal intimately with a large number of persons, especially with the poorer classes, and with those who would be natural recipients of Federal and State aid.

Last summer and last fall it was very discouraging for me to observe the dissatisfaction and sadness in the lives of many of our oldage pensioners because of the uncertainty they felt with reference to the payment of their pension. This was due largely to the agitation that was being carried on between the Social Security Board and the State department of social welfare under the then Governor, Mr. Davey.

It is not necessary for me to attempt to discuss the merits of that controversy. Rather I should direct what I have to say to the consequences of it. The consequences of this misunderstanding is condensed into this bill that Mr. Jenkins has introduced and which we are asking you gentlemen of the committee to vote favorably on at this time. One million and thirty-eight thousand dollars that belonged to the old-age pensioners in Ohio was withheld from them last October. I admit that the Governor has credit due him for his manipulation in transferring this amount from other State funds, but at the same time the money that was to come to the old-age pensioners of Ohio from the Federal Government did not come.

To my mind, there is no question about the justice of this bill. It must be recognized beyond any question that this money should have been paid. The fact that the then Governor or the administration failed or the Federal administration failed is of no great consequence when we come to determine the right and wrong of the situation. The right thing would have been to have paid this money at the right time. Since it was not paid, a wrong was committed, and the wrong will never be righted until the money is paid.

I do not profess to know the legal technicalities that might be in the way, but I do know that technicalities always fade away when justice is to be done. I think that if the members of your good committee would recognize the equities in this case and vote it out that the House would pass it overwhelmingly and that the President would sign it. We are not attempting to find fault with the Social Security Board or anybody else, but do recognize a situation; and our purpose now is to clear that situation. We cannot do so, because we cannot clear it ourselves. You are the proper authority, and we respectfully submit our case to you, with confidence, recognizing your authority and also recognizing your sense of justice and high mental attainments.

STATEMENT OF HON. CLIFF CLEVENGER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. JENKINS. Mr. Clevenger is next, please.
Mr. CELLER. Mr. Clevenger.

Mr. CLEVENGER. Mr. Chairman and gentlemen of the committee, I do appreciate this opportunity to add a word to what has already been said by my colleagues and our State officials with reference to the payment to the State of Ohio of the sum set forth in the bill introduced by Mr. Jenkins, my worthy colleague.