This section also provides that the extra compensation shall be paid by the master, owner, agent, or consignee of the vessel or conveyance in connection with which the lading or unlading is performed whenever special license for the performance of such services at night or on Sundays and holidays has been granted by the collector.

The section contains an added provision that where the customary working hours at a particular port are other than from 8 a. m., to 5 p. m., the collector is authorized to regulate the hours of customs employees so as to agree with the prevailing working hours in said port, but is not permitted to alter the length of the working day for customs employees or the overtime pay as fixed under this section. The Supreme Court, in the Myers case (320 U. S. 561), construed this provision as authorizing the collector to establish regular tours of duty during any of the 24 hours of the day and held that where an employee works on a regular night shift he is not entitled to extra pay unless he is required to put in actual overtime. It held that the extra compensation for work on Sundays or holidays must be paid in all instances.

Section 1450 of title 19 prohibits the unloading of merchandise, baggage, or passengers arriving in the United States from any foreign port or place from the carrying vessel or vehicle on a Sunday or a holiday or at night, unless a special license therefor has been granted by the collector under regulations prescribed by the Secretary of the Treasury.

Section 1451 of title 19 provides, as a condition to the granting of any such special license to unlade, that the master, owner, or agent of the vessel or vehicle in question shall give satisfactory bond binding him to pay the compensation and expenses of the customs officers and employees assigned to duty in connection with such unlading at night or on Sundays or holidays. It provides that nothing in the section shall be construed to impair the existing authority of the Treasury Department to assign customs officers or employees to regular tours of duty at nights or on Sundays or holidays when such assignments are in the public interest. The compensation of personnel so assigned, however, is to be determined in accordance with the provisions of section 267 of the same title.

Up to that point, the statutory provisions would seem to apply equally to all forms of transportation. The only inequalities that might develop would arise as the result of the exercise of discretion by the Secretary of the Treasury in assigning customs officers and employees to regular tours of duty at night.

The provisions do not stop at that point, however. There has been added to them a proviso now found in section 1451-A of the code which makes section 1451 and related sections inapplicable to the owner, operator, or agent of a highway vehicle, bridge, tunnel, or ferry between the United States and Canada or between the United States and Mexico, or to the lading or unlading of merchandise, baggage or persons arriving in or departing from the United States by motor vehicle, trolley car, on foot, or by other means of highway travel upon, over, or through any highway, bridge, tunnel, or ferry.

At ports of entry and customs stations where any merchandise, baggage, or persons arrive or depart from the United States by motor vehicle, trolley car, on foot or by other means of highway travel, upon, over, or through any highway, bridge, tunnel, or ferry between the

United States and Canada or the United States and Mexico, it is made the duty of the collector to provide customs inspection service at such times during the 24 hours of each day, including Sundays and holidays, as the Secretary of the Treasury may deem necessary to facilitate the inspection and passage of such merchandise, baggage, and persons. All customs officers and employees assigned to such service are to be paid by the United States without reimbursement by anyone and no license, bond, or financial undertaking of any sort is to be required from the owner, operator, or agent of any highway vehicle, bridge, tunnel, or ferry as a condition to the furnishing of such service.

Mr. JENKINS. I take it you make a point that this can, if carried out, be a very, very expensive method of transportation of goods and because of the airplane and modern transportation, the whole program will become more complicated?

Mr. PRINCE. I will have to put it this way, Mr. Chairman: As it is being conducted today, it is quite expensive. Anybody who tries to perform that service on their own at any such cost would be thought to be crazy, to pay these very high rates of overtime compensation. Because the transportation agencies pay them, we have been unable to get those rates lowered to anything like a reasonable level of pay for overtime compensation. We are not opposed to customs inspectors getting a proper and appropriate overtime compensation. We think it should be paid by the Government in any event. They are certainly not entitled to get the rates of compensation that they are getting.

Mr. Tipton has testified to the report of the committee that showed what outrageous rates of overtime these customs inspectors are getting. We are having to pay them. If an amendment were put into this law which relieved us of the obligation of paying that overtime, then I think the Government would not stand for such rates of overtime. They would adjust their hours of duty so that the man would not be on overtime, or they would establish regular tours of duty when it

were necessary.

Mr. JENKINS. Do you propose to offer an amendment? have that amendment set out here?

Do you

Mr. PRINCE. I have set out the substance of it in here and have referred to the language of the Dingell bill, H. R. 3550 of the 81st Congress, being the bill which contains the most appropriate language in our judgment.

Mr. JENKINS. Will you defer a minute while I introduce a group of mighty fine boys and girls from my hometown? They have come over with the school.

Boys and girls, we are mighty glad to have you. I am sorry we haven't a bigger audience for you here, but if we had a bigger audience you may not have been able to get in. So you came at a good time to get into the Ways and Means Committee which we think is the most beautiful room in all of Washington.

You may proceed.

Mr. PRINCE. Mr. Chairman, if they could copy this into the record as it is written in the statement, I will just mention one or two other points briefly. I think that will be sufficient.

Will that be all right?

Mr. JENKINS. Without objection the statement will be accepted into the record.

(The balance of Mr. Prince's statement is as follows:)

These statutory provisions relating to customs inspection services run counter to certain governmental policies as reflected in other statutory provisions.

For many years it has been the general policy of the Government not to permit any part of the compensation of its officers or employees to be paid by any private party. In an appropriation act enacted March 3, 1917, it was provided:

"No Government official or employee shall receive any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality, and no person, association, or corporation shall make any contribution to, or in any way supplement the salary of, any Government official or employee for the services performed by him for the Government of the United States. Any person violating any of the terms of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $1,000 or imprisonment for not less than six months, or by both such fine and imprisonment as the court may determine."

For many years that provision was carried as section 66 of title 5 of the United States Code, Executive Departments and Government Officers and Employees. In the rather general revision of the code which was made by the act of June 25, 1948 (62 Stat. 862), this provision was transferred to new title 18, Crimes and Criminal Procedure, where it appears, modified in language but not in substance. as section 1914. That section reads:

"Whoever, being a Government official or employee, receives any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality; or

"Whoever, whether a person, association, or corporation, makes any contribution to, or in any way supplements the salary of, any Government official or employee for the services performed by him for the Government of the United States

"Shall be fined not more than $1,000 or imprisoned not more than six months, or both."

In this instance the overtime compensation is not paid directly to the customs officers by the carriers but is paid to the Collector of Customs who in turn is required to pay the same to the customs officers entitled thereto. Since the payment of this money by the carriers is required by law and the customs officers are entitled to receive it by specific statutory provision, no doubt neither could be held in violation of the criminal provision quoted above. However, without such such specific provisions it seems highly probable that the receipt of such money by a customs officer would be considered a violation of the criminal provision because the true source of such increments to his salary is clearly not the Government and it is certainly "in connection with his services as such an official." Likewise, it is pretty clear that the carriers are supplementing or making a contribution to the salary of the customs officer "for the services performed by him for the Government of the United States."

Any argument that the customs overtime provisions do not run counter to the policy of this criminal provision because the overtime payments are incurred for the convenience of the carriers would clearly seem to be unsound. It could perhaps be argued that the time at which the services are performed by the customs officer is to some extent for the convenience of the carriers, but the "services performed by him" are for the sake of carrying out the customs laws of the United States and are thus clearly "for the Government of the United States.'

Furthermore, it seems to us that it is clearly a misconception to think of customs inspection service performed at night or on Sundays or holidays in connection with traffic coming into this country by rail, air or water as being solely for the benefit and convenience of the carriers. The carriers as a practical matter are obliged to schedule their operations so as to meet the convenience of the public with respect to times of departure at points of origin and times of arrival at points of destination. In most instances the international boundary is merely an intermediate point and it would not be possible to schedule all operations to arrive at the border during regular daytime business hours or to suspend service on Sundays and holidays and at the same time satisfy the necessities and convenience of the traveling and shipping public. Also, it is unthinkable that the public would tol

erate the holding up of carriers at border points overnight or over Sundays and holidays so that customs inspections could be performed only in the daytime or on week days.

I believe it to be the proper obligation of the Government to adopt such measures as are necessary to enable it to enforce customs laws with the least possible inconvenience to the public. I should say also that the Government's obligation to meet the necessities and convenience of the traveling and shipping public is equally as great as that of the carriers and therefore, in essence, arrangements to perform customs inspection service at night and on Sundays and holidays is in the general public interest rather than in the particular interest of the carriers.

Another governmental policy to which the customs overtime provisions run counter is that contained in the Transportation Act of 1940. That act contains a formal declaration of national transportation policy, which declares it to be the intent of the Congress that the Government shall accord fair and impartial treatment to all modes of transportation, to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the postal service, and of the national defense.

Thus it seems clear that the statutory provisions relating to customs inspection services are in direct conflict with the spirit of both of the general policies referred to above. In providing, as a condition to the furnishing of certain customs inspection services, that certain private interests must pay the compensation of the customs officers and employees performing such services, the provisions run counter to the first policy mentioned. In imposing such requirement upon the railroads, the airlines and the boat lines, while exempting motor carriers and other forms of highly competitive transportation, they run counter to the policy declared in the Transportation Act of 1940.

On behalf of the railroads, I urge the inclusion in H. R. 5106 of an appropriate amendment to existing law which will remove the present unjust discrimination against them in this matter. As to the form which such an amendment might take, I call attention to H. R. 3550, introduced in the 1st session of the 81st Congress by Mr. Dingell. The railroads would be entirely satisfied with an amendment similar to the one proposed in that bill. As a matter of fact, their problem would be substantially met by a somewhat narrower exemption than the one for which that bill provides. That bill would retain the present provisions of the law which exempt highway vehicles, bridges, tunnels or ferries from the requirement to pay for overtime customs inspection, but would enlarge the exemption to include "the master, owner, operator, agent, or consignee of an aircraft, railroad train, or vessel engaged in overseas or foreign service (i) when operating pursuant to regular schedules and without regard to the actual time of arrival or departure, or (ii) when operating without schedule if the collector is given reasonable notice as to the expected time of arrival or departure".

The vast majority of the overtime paid by the railroads is in connection with regularly scheduled operations so that their problem would be substantially solved if the amendment provided only the first of the two specified exemptions. They understand, however, that both exemptions are needed to meet the needs of the airlines and boat lines and therefore advocate the more complete exemption in the interest of greater substantiative equality of treatment of competing carriers.

Mr. PRINCE. We point to several governmental policies that we think are being evaded and avoided by the present provision. The policy of having the railroads, airlines, and waterlines pay the overtime compensation, while the motor carriers are exempt from this requirement, runs counter to the policy of the Transportation Act of 1940 which provides for equal, fair, nondiscriminatory treatment of all forms of transportation. That is one policy that the present provisions run counter to.

The second one also adverted to by Mr. Tipton is against the payment of Government officials by private individuals or companies. This policy has been long established, and this runs directly to it.

Furthermore, we think that the collection of customs duties is an obligation of the Government. It is just as much an obligation of the Government to consider the convenience and necessities of the traveling public and shipping public as it is of the carriers themselves. We

cannot arrange to bring people in only between 8 a. m. and 5 p. m., on a weekday and say, "No, we cannot travel on Sundays or holidays, because there are no customs inspectors."

Naturally, we would prefer to pay the overtime, if that is the only way you can do that. But I think the Government has an obligation equally as great as that of the carriers to facilitate customs inspection. They should do it with the least inconvenience to the traveling public. I think it is just as much for the general public good as it might be said to be for the particular interests of the carriers, to have the Government provide adequate service in the matter of customs inspection, and it is appropriate that the Government pay for this governmentaĺ function.

That, in substance, is what we have here. We respectfully recommend that there be added to this bill an amendment which would provide for the Government taking over that overtime compensation. Mr. JENKINS. Mr. Prince, may I ask you a question? Do you know what the position of the executive department was on Mr. Dingell's bill, H. R. 5505 in the 81st Congress?

Mr. PRINCE. I am sorry, I was not handling this matter at that time.

I do know that the customs officers and their organizations have opposed this. They have opposed it bacause, I feel certain, they are aware of the fact that if the Government were paying the overtime, they would not get overtime at the rates they are getting now.

Mr. JENKINS. Am I right that the Government was at one time working on an overall bill to settle this whole question of customs inspection services?

Mr. PRINCE. They were working on a bill that had to do with the overtime rates by Government employees generally.

Mr. JENKINS. Do you know what happened to that?

Mr. PRINCE. The bill was not passed. It was reported out of the Senate, as I recall. I think that was S. 354 of the 82d Congress, if I am not mistaken.

My recollection is that that bill was reported out favorably by the Senate, but that was the end of it as far as I can recall.

Mr. JENKINS. All right, sir. Thank you very much for your testimony.

We will adjourn the hearing until tomorrow morning at 10 o'clock. (Whereupon, at 3:11 p. m., the hearing was recessed, to reconvene Thursday, May 28, 1953, at 10 a. m.)