who made objection to the confirmation of these gentlemen were notified to be here or forever after hold their peace. They do not seem to be here, and may I ask if you have any suggestions to make? Senator DILL. Well, I do not know about that. But there are one or two questions I want to take up with the commissioners. The CHAIRMAN. They are all here. Senator DILL. I first want to take up the question of residence as regards Mr. Pickard. I have made some little investigation of it, and, as a matter of record, I want to present what I have. I think it would be well to let Mr. Pickard come forward and be questioned. The CHAIRMAN. Mr. Pickard, will you take a seat on the opposite side of the table from the official reporter? Commissioner PICKARD. Certainly. STATEMENT OF SAM PICKARD, MEMBER OF THE FEDERAL RADIO COMMISSION FROM KANSAS Senator DILL. Mr. Pickard, when did you leave Kansas to come here to Washington? Commissioner PICKARD. Three years ago this month I came here to Washington. Senator DILL. Did you have a home, and by that I mean a residence which you owned in Kansas at that time? Commissioner PICKARD. Yes; and sold it just a day or so before I left there. Senator DILL. Have you actually lived there since that time? Commissioner PICKARD. Well, I have gone back from time to time. The following summer I went back to the agricultural college, at their request and expense, and served a part of that summer with them on my old job. Senator DILL. That was the summer of 1923? Commissioner PICKARD. Yes, sir. Senator DILL. And you have not had any home as such there, what we would call a home? Commissioner PICKARD. Except that I have kept up my dues in the local American Legion Post, and considered that my home, and the place to which I would return. Senator DILL. Do you register there when voting? Commissioner PICKARD. I register there, but I have not voted since I have been in Washington, because of my work here. Senator DILL. When did you vote last? Commissioner PICKARD. In 1920-no; in 1924. Senator DILL. I understand that you are a Democrat? Commissioner PICKARD. Yes, sir; I vote the Democratic ticket. Senator DILL. The reason I ask these questions is that section 3 of the laws says that each member of the commission shall be a citizen of the United States and an actual resident citizen of a State within. the zone from which appointed at the time of such appointment. The question has been raised, by a letter to me, and I have raised it in my own mind, I want to say frankly, as to whether you were an actual resident citizen of the State of Kansas, and I want to put into the record what data I have gathered on it, because I have been very much concerned about this situation. I had much to do with putting the word "actual" in the law, and while the matter was not discussed on the floor of the Senate or House, yet it was the purpose of the conferees who drew that section to prevent the appointment of anyone on this commission who was not actually domiciled in a State of the zone at the time of his appointment. That was the purpose, but that was not brought out in the discussions in Congress. I want to give this committee the benefit of what I have found on the subject. In a letter from the Civil Service Commission to Senator King, which was handed to me on yesterday, written by Mr. Doyle, the Secretary of the Commission, he discusses this question as it applies in the Civil Service Commission law. I want to read that. Their law is somewhat different from our law, but it is rather interesting in connection with this situation : The commission invites consideration to the fact that the act of July 2, 1909— that is, the civil service act provides that no person shall be eligible for such examination or appointment unless he or she shall have been actually domiciled in the State or Territory for at least one year previous to such examination. In volume 27, opinions of the Attorney General, section 7 reads as follows: The words "for at least one year previous preceding. means for at least one year next The words "actually domiciled" had not theretofore been linked together in any law relating to residence. Its effect was to add to the previous requirement of legal residence, a stipulation that a showing of actual residence should likewise be required. It was realized at the time, as shown by the debates in Congress, that this would make the administration of the apportionment law much more rigid and restrictive, in that it would require something more than a mere expression of intent or a claim of legal or constructive residence to warrant the commission in accepting a candidate's application for permanent appointment in the departmental service. It is clear, however, that such was the intent of Congress. The important point to be gleaned from the legislative history of the statute is that it requires a showing of actual domicile. The word actual," of course, must be given its full meaning. It means real as opposed to nominal; open, visible, or public, as opposed to constructive. In particular it precludes the commission from accepting a domicile which exists only in contemplation of law, as meeting the requirements of the statute. Now, of course, as I say, the law is somewhat different, but the discussion there on that point is interesting. I went to the Library and secured the opinions of Attorneys General, and I have one of them here which is somewhat in point, and I want to read that part of it. This is an opinion given in 1891 by W. H. H. Miller, then Attorney General, on the words "actual bona fide residence" using both terms. I do not think I shall read it all, but I should like to ask that it be inserted in the record of our hearing in order that it may be before us. The CHAIRMAN. Without objection that will be done. Senator DILL. I simply want to make this record complete, and this question is here, and it will be up again possibly. It was up last spring, but we did not have time to go into it when Admiral Bullard's name was before us, and we passed upon it, although I think his case had a much more questionable aspect than that of Mr. Pickard, because Admiral Bullard had not lived in Media, Pa., for a long time. The CHAIRMAN. For some 37 years, I believe. Senator DILL. Yes. The Attorney General, after quoting the civil service law, where the term "actual, bona fide residence" is used, said: Just what constitutes an actual bona fide residence is not always easy of determination. That a man may have an actual bona fide residence in one place and be bodily absent therefrom for months and even years together, is certainly true. That a Senator or Representative in Congress or other Government official, who leaves his home in one of the States to live in the District of Columbia, or in a foreign country, during his official term, and with the purpose, whenever his public employment ceases, of returning to his original home, is continuously an actual bona fide resident at that home is not doubted. I think that would cover the case of Mr. Pickard; that is, he was here in the Government service with the intention of returning to his home, and under this interpretation he would be an actual bona fide resident of the State of Kansas. I repeat that this is an illustration of how those of us who write a law need to know what the court says the law is before we write it, because it certainly was the intention of the members of the conferees to make it impossible to appoint anybody from the District of Columbia, at the time we had the matter up, but I think we must take the statute as it reads, and take its interpretation as given by the Attorney General, and I may say that this is based upon court decisions. I will not read further, but I should like to have the entire opinion by the Attorney General made a part of the record. It is found on page 60 or volume 20 of the Official Opinions of Attorneys General: ACTUAL BONA FIDE RESIDENCE A general rule applicable to all cases can not be formulated as to what constitutes bona fide residence under the act making, among other things, appropriation for expenses of Civil Service Commission, passed July 11, 1890, chapter 667. The purpose of the proviso of that paragraph of that act was to discriminate against persons who claim the benefit of such citizenship, and disclaim and fail to discharge any of the obligations of such State residence and citizenship. DEPARTMENT OF JUSTICE, April 1, 1891. SIR: My opinion is asked as to the meaning of the words "An actual and bona fide resident" as used in the proviso of the paragraph of the act of Congress of July 11, 1890 (Pamphlet Laws, 1889-90, p. 235), making an appropriation for the expenses of the Civil Service Commission. The proviso is in the following words: 66 Provided, That hereafter every application for examination before the Civil Service Commission for appointment in the departmental service in the District of Columbia shall be accompanied by a certificate of an officer, with his official seal attached, of the county and State of which the applicant claims to be a citizen; that such applicant was, at the time of making such application, an actual bona fide resident of said county, and had been such resident for a period of not less than six months next preceding; but this provision shall not apply to persons who may be in the service and seek promotion or appointment in other branches of the Government." Just what constitutes an actual bona fide residence is not always easy of determination. That a man may have an actual bona fide residence in one place and be bodily absent therefrom for months and even years together is certainly true. That a Senator or Representative in Congress, or other Government official, who leaves his home in one of the States to live in the District of Columbia or a foreign country, during his official term, and with the purpose, whenever his public employment ceases, of returning to his original home, is continuously an actual bona fide resident at that home is not doubted. Such a person is liable to all the burdens of residence and citizenship at home. There he is liable to a poll tax; there his personal property is assessed for taxation; there he should be enrolled in the census; there, in case of war, he would be liable to military duty; and there, in case of death, would be the administration of his estate. On the other hand, a person who leaves his home in one of the States, and, with his family, makes a home and engages in business, public or private, in the District of Columbia or elsewhere, denies his liability to enrollment for any purpose at his former State home, is not there listed for taxation, and recognizes no obligations of domicile there, is certainly not an actual bona fide resident at that place within the meaning of the statute under consideration. The fact that such a person might still claim (a claim of very doubtful validity) the right to vote in the State from which he came would not make him a proper applicant for the examination provided for in this section. In my opinion, it was the purpose of this act to discriminate against persons of the latter class-persons who claim benefit of State citizenship and disclaim or fail to discharge any of the obligations of such State residence and citizenship. In brief, what constitutes actual bona fide residence under this statute, as in other cases, is a mixed question of law and fact to be determined in each instance upon its own peculiar facts. A general rule applicable to all cases can not be formulated. The foregoing suggestions indicate the principle to be applied. Respectfully yours, The PRESIDENT. W. H. H. MILLER. Senator DILL. Here are two other opinions by Attorney Generals that refer to the matter, but I do not think it is necessary for me to read them into the record. Senator FESS. What you were trying to provide against, as well as in the House, in the use of "actual bona fide residence," was that under the decision we might have an entire commission temporarily resident here and who might have been here for 20 years although actual citizens of the States from which they came. That is what you are trying to avoid? Senator DILL. You will remember that at that time there was a great deal of discussion of getting men that would be free from the influence of the Department of Commerce. Senator FESS. Yes. Senator DILL. We wanted to make it impossible to pick men who were then with the Department of Commerce or with other departments of the Government and to make it so that the President would be compelled to select from the various States outside the District of Columbia. The law was not worded that way, but we said "State," and the District of Columbia is not a State, although it is one of the portions of a zone. But, frankly, I think we failed in our purpose in the way we wrote the statute, and I wanted to present this matter here. Senator FESS. In other words, Mr. Pickard fulfills the requirements of the law, although it is not what you had in mind; is that it? Senator DILL. I think so. Of course, I will say that I did not know Mr. Pickard and did not have in mind any question as to him. The CHAIRMAN. And this statute says that he must be a man who is a citizen of some State of his zone. Senator DILL. I think the only way we could meet this situation would be to provide that an appointee must be actually domiciled in the State at the time. Senator PITTMAN. What is your distinction between actual and constructive residence? Senator DILL. There does not seem to be any. Senator PITTMAN. The Civil Service Commission finds that actual domicile and actual residence are synonomous, do they? Senator DILL. Its secretary does; and when I got this statement it seemed to me very strong in support of the purpose we had in mind, but after getting the opinions of Attorneys General and reading them, two of which I have not read here but which took up this question, I think the courts would say that Mr. Pickard is an actual resident of the State of Kansas, and I say that now, much as I did not think it previously. Senator PITTMAN. You mean, then, that by adding the word "actual" to the word "residence" it amounts to nothing? Senator DILL. When you add the word "residence" it is contended the law meant to say what his actual intent was rather than his actual bodily or physical home. But I say frankly it was not the intention to permit that when we wrote the statute. The CHAIRMAN. Mr. Pickard, were you born in Kansas? The CHAIRMAN. How long had you lived in Kansas before you came to Washington? Commissioner PICKARD. Since 1912, with the exception of a few years out in the Army. The CHAIRMAN. And what were you doing in Kansas? Commissioner PICKARD. I first went to Kansas and attended the university at Lawrence, and after the war, two years later, I went to Manhattan and took an agricultural course there and became agricultural editor and director of the radio station. That was in 1923. After that I took a position here. The CHAIRMAN. You went there in 1920, as I understand? The CHAIRMAN. You occupied that position as radio director until you came to Washington? Commissioner PICKARD. Yes, sir. And it was held open for me since that time up until after my appointment to the position here. The CHAIRMAN. What were you doing in Washington? Commissioner PICKARD. First, I went to the Department of Agriculture and organized the radio service, launched it, and then went to the Federal Radio Commission this spring as secretary. The CHAIRMAN. That is, organized a radio service for the agricultural colleges? Commissioner PICKARD. Yes; and a service for commercial stations. Senator WHEELER. Who resigned when you went on the commission? Commissioner PICKARD. Mr. Bellows. Senator WHEELER. Do you know of any reason why Mr. Bellows resigned? Commissioner PICKARD. As I understand it, it was purely a financial matter. Senator WHEELER. Where is Mr. Bellows now? Commissioner PICKARD. He is here in the room. |