executive departments are concerned, as a rule of administration it has long been settled that the action of Executive orders in matters of accounting and payment cannot be regarded as a conclusive determination when brought in question in a court of justice.

So, it would seem to me that your actions are not conclusive. If that is true, then the only question is whether or not you have a right to remedy any errors you have made.

Now, if I understand this correctly, those same conditions obtained in Oklahoma. You placed a stop order there the same as you did in Ohio. Later you did that which the law clearly says that you can do, you remedied the situation, you adjusted the differences and you paid Oklahoma for the time when the stop order was in existence. Mr. ALTMEYER. No; we did not, sir.

Mr. MICHENER. Now, if I am wrong, I want to know about it. Mr. ALTMEYER. The difference between the Oklahoma situation and the Ohio situation is that it was possible in the case of Oklahoma for us to make a new finding of fact because of changed circumstances. The officials did move before the next payment became due. If the Ohio officials had moved during the month of October, so that the situation had changed sufficiently so that we could make a new finding of fact as to conformity, then, automatically, certification to the Secretary of the Treasury of the amount for October would have occurred.

Mr. MICHENER. I have no facts only as I get them here. I live next to Ohio, and I was blasted day in and day out with radio speeches by one Sawyer down there during a campaign, and these things were charged and recharged that the Board would stop these payments, and they would not get the money if Davey had his way. It does seem to me that certainly was an element as far as the people of Ohio were concerned, and I hope it had no weight with the Board. But, if they had a recalcitrant Governor down there, I just cannot see why your Board did not have sufficient power after you issued a stop order then to correct the matter as you did in Oklahoma.

Mr. ALTMEYER. We are powerless to correct a situation in a State, because the whole power to correct that situation lies in the hands of the State officials. If they do not move, we cannot move, and they did not move during that month of October. Now, there were suggestions that we take over the administration in Ohio and that we apply sanctions to the officials themselves to compel them to move. As a matter of fact, action was commenced and a writ of mandamus was sought to compel the Governor and the proper officials to move, but that writ, I think, never was issued. So, during that month of October there was just simply a stalemate. They would not move and we could not compel them to move, and therefore we could not change our findings of fact because there was no change in the situation that would give the Board a basis upon which to change our findings.

Mr. MICHENER. May I ask one question right there: Would these vouchers have to be approved by the General Accounting Office? Mr. ALTMEYER. Yes, sir.

Mr. MICHENER. Could you not settle this thing very easily if you issued an order and had the law determined by the General Accounting Office? If you issued your order here to have this tried out by

the legal authority of the Government passing upon the interpretation of the statute, by simply issuing an order and let the matter go to the General Accounting Office and have it determined there?

Mr. ALTMEYER. I would have to get the advice of counsel on that. Mr. MICHENER. In other words, if you issued your order that this amount was expended in good faith in Ohio, that matter would have to go to the General Accounting Office, and the General Accounting Office would determine whether or not you had properly interpreted the law. That is their function.

Mr. ALTMEYER. I would like to make a countersuggestion, if I may.
Mr. MICHENER. And your attorney can answer the question.
Mr. ALTMEYER. Yes; I would like to do both.

Mr. CELLER. Give your name to the stenographer and answer the question.

Mr. SMITH. My name is A. D. Smith, and I am in the office of the general counsel, Social Security Board.

Mr. CELLER. You may answer the question Mr. Michener asked. Mr. SMITH. Mr. Chairman, I understood that the Chairman of the Board wishes to make a countersuggestion to you.

Mr. ALTMEYER. Go ahead and answer the question.

Mr. MICHENER. I would like to have you answer whether or not that can be done? That does not require any countersuggestion.

Mr. SMITH. I assume the General Accounting Office would, in the course of its jurisdiction, pass upon the validity of a check issued from the Treasury Department to a State on the basis of such certification, the record of the Social Security Board being before it. The question as to whether or not that would be a proper thing for the Social Security Board to do

Mr. MCLAUGHLIN. That raises a question that I would like to ask: I would like to know if you are taking the position, Mr. Altmeyer, that this presents strictly a legal question or whether it presents a practical or administrative question? In other words, is it your attitude that under the law you cannot certify this money back to the State of Ohio?

Mr. ALTMEYER. Yes, sir.

Mr. MCLAUGHLIN. Or, in your discretion, you do not see fit to do so?

Mr. ALTMEYER. No; the first.

Mr. MCLAUGHLIN. Have you any opinion from your counsel's office that you cannot do that?

Mr. ALTMEYER. Yes.

Mr. MCLAUGHLIN. Could you furnish this committee a copy of that opinion?

Mr. ALTMEYER. Yes. I would like to make a countersuggestion. It seems to me that it would be improper for the Board to make a certification for payment when the Board, upon advice of its counsel, feels that is an illegal proposition. Rather than place ourselves in the position of certifying to the Secretary of the Treasury for payment something that we consider illegal, I would like to suggest that if the committee has any doubt as to the legal position in this matter an opinion be obtained from the Attorney General of the United States.

Mr. CELLER. Would you abide by it?

Mr. ALTMEYER. Yes; we will abide by it; but since we have no doubt, there is no purpose in our obtaining an opinion from the Attorney General, unless the other parties in interest will abide by that opinion whichever way it goes.

Mr. MICHENER. Of course, the equities here enter into it, and it is a very unfortunate circumstance. If you are going to keep within the law, we feel that the equities presented are strongly in favor of the State of Ohio.

Mr. ALTMEYER. That is why I say we have considered the effect upon the whole administration of the Social Security Act in the 51 jurisdictions. I would not for the world want the Ohio officials or the Ohio delegation to feel that the Social Security Board was being arbitrary or unreasonable or filled with vindictiveness or any antagonism toward Ohio in this matter. We are trying to interpret the law as we understand it in its application to the whole United States. Mr. MICHENER. Yes; and we are interested, of course, in just what you are interested in.

Mr. ALTMEYER. Yes, sir.

Mr. MICHENER. When the Congress sets up boards Congress has the thought that the board is going to be reasonable within the law at all times. Many boards are destroyed by arbitrariness. We have one example right now where a board has insisted on the law right along, but it has changed its rules and regulations recently to comply with common sense and with the intent of Congress and the law.

Mr. ALTMEYER. And that is why we are perfectly willing to is

sue

Mr. MICHENER (interposing). The Board can destroy itself very easily in the functions it is performing by arbitrariness.

Mr. ALTMEYER. All I can submit to you in that connection, Mr. Congressman, is this that we started with a Social Security Act, and not a single payment was being made in a single State under the provisions of that act. We started less than 4 years ago, and in that period of time the Social Security Board, in cooperation with the 51 jurisdictions of this country, has been able to put into effect a national program. Under that national program there are 1,900,000 old people receiving aid, 600,000 children receiving aid, and 50,000 blind receiving aid. I submit the record of 4 years of progress that has been made demonstrates that the Social Security Board has tried, to the best of its ability, to administer the law as contemplated by Congress.

Mr. MICHENER. I am not finding any fault with the general action of the Board, but some of us just have a feeling after this matter came up that here was a situation where the equities were all one way. There is no question that politics did enter into it. Mr. ALTMEYER. It did not from our side of it.

Mr. MICHENER. I am talking about the State of Ohio. Because of that intolerable political situation in Ohio, your Board has been placed in a very unfavorable position; and if there is a way legally that you could extricate yourself from that position and do equity to all of the parties, I am just wondering why you should not do it. Mr. ALTMEYER. Congressman, I repeat that we believe that we are controlled by the provisions of the Social Security Act. We are

perfectly willing to submit the matter-if your committee thinks that there is doubt about it, or if the people of Ohio feel that there is doubt about it-perfectly willing to submit the matter to the Attorney General, although we have no doubt whatsoever in our minds. I say that sincerely. We see no advantage in so submitting that to the Attorney General unless all of the parties in interest are willing to abide by his opinion. Otherwise, you will be back just where you started in the event the Attorney General upholds our interpretation of the Social Security Act.

Mr. MCLAUGHLIN. Do you have a copy of counsel's opinion upon which you are basing your opinion?

Mr. ALTMEYER. I do not have it with me, and I do not know whether it has ever been reduced to writing. There is no difference of opinion. We had our entire legal staff in consultation.

Mr. CELLER. Will you let us have a copy of that opinion?
Mr. ALTMEYER. Yes, sir.

(This opinion appears at p. 71 of this hearing.)

Mr. CELLER. As I view the situation, all of the equities are on the side of the State of Ohio, as my good friend Mr. Michener says. You cannot do anything but rely upon the discretionary power of the officials of the State. Now, in October they failed to answer certain charges, and they failed to do certain things that you felt they should do. In November the situation had been altered. In the sense that you could not go into every detail of the situation in Ohio and examine it minutely, you still had to rely upon the judg-. ment and conclusions reached by the State officials.

Mr. ALTMEYER. NO.

Mr. CELLER. In December it was the same way; you could not check it completely. You still had to rely upon the discretionary power of the local officials. I cannot conceive how you withheld payment in October and made payments in November and December right along. You have not satisfied me.

Mr. ALTMEYER. I will be glad to make a part of the record the findings of facts upon the basis of which the Board withheld funds. I will be glad to place in the record the findings upon which the Board restored grants.

Mr. CELLER. There is nothing final in the matter. You do not set yourself up as a court, as you have not the machinery with which to do that. You have to rely upon the discretionary action of the local officials, you have to take their word for it, for October, November, December, and for every month.

Mr. ALTMEYER. But action was taken on their part to correct the plan of organization, to correct their instructions, to set up appeal machinery in which Congressman Jenkins is particularly interested, because he got that provision in the present act, and there were a number of other actions that were taken during November upon the basis of which we were able to make new findings. I will make the two sets of findings a matter of record.

Thank you, Mr. Chairman and gentlemen of the committee.

Mr. JENKINS. When we prepared this bill we appreciated that there might be some difficulty, and that if we did have a remedy at law there might be some difficulty, because then we would be confronting technicalities. We appreciated that if we brought this bill

to the House we would then have a fair chance for our equities. This bill provides that the Secretary of the Treasury shall pay the money. The Board will have nothing to do with carrying it into effect if the bill passes.

Mr. MICHENER. Your trouble there, Mr. Jenkins, as I see it, is this: That the Congress has always adhered to the policy that we could not enter into discussions of this kind where equity is involved until the legal remedies had been exhausted, and in view of that fact it occurred to me that if the check was drawn, as suggested by counsel, then the Comptroller General would take action, and if his action was illegal then you would have no difficulty in coming to the Congress because of the equities.

Mr. JENKINS. Your position is borne out also by the manner in which they handled the Oklahoma situation. In other words, the Oklahoma situation ran along 45 days, or a month and a half. Now, they adjusted that in the middle of the second month.

Mr. MICHENER. A stop order was issued, and Oklahoma was not entitled to any money until they had complied with the law, and when they had complied with the law the Board then issued a check. It went over to the Comptroller General's office and it was approved.

Mr. JENKINS. Yes.

Mr. MICHENER. And it was paid.

Mr. JENKINS. Yes; and it was paid after it ran 15 days into the second month. So, it was past 30 days and into the second month. Now, Congressman Earl Lewis is here. He has worked out that Georgia precedent for this legislation, and I should like to have the committee hear him.

Mr. CELLER. We will hear him very briefly.

STATEMENT OF HON. EARL R. LEWIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. LEWIS. Mr. Chairman, and gentlemen of the committee, there is a very clear precedent for the enactment of such a bill as H. R. 5118 which is found in the proceedings of the Sixty-fifth Congress, second session, in the year 1918, and arises out of the controversies between the Secretary of Agriculture of the United States and the authorities in charge of the Georgia Experiment Station.

Under the Hatch Act, which was an act of Congress of March 2, 1887 (24 Stat. L., 440), annual appropriations for the conduct of the State agricultural experiment stations were authorized. One of the conditions for Federal assistance to such State agricultural experiment stations was that the same must be under the direction of a college or an agricultural department of colleges established in the State under the Act of Congress of July 2, 1862 (12 Stat. L., 503), commonly referred to as the Morrill Act.

In 1888 the Georgia Agricultural Experiment Station was first established by the board of trustees of the University of Georgia, as a department of the State College of Agriculture and Mechanic Arts. The assent of the State of Georgia to the provisions of the Hatch Act was made by the Governor and the University of Georgia was designated by him as the recipient of the funds appropriated by