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Attorney General KENNEDY. That is quite different. I would say he might very well be covered. But that is quite different.
Senator ERVIN. All right. If a shoeshine boy has a place where he shines shoes and the goods he uses consists of one can of polish, one rag, and one shoebox which have moved in interstate commerce, he would be covered.
Attorney General KENNEDY. No; I do not believe he would still be covered. I was going to make two points.
First on the question of the shoeshine boy: I do not think he would be covered. If he was part of an establishment, it might be questionable. Depending on where he was, if for instance he was part of a railroad station, part of an airport, part of a bus station, he might be covered. But I think quite clearly a reading of subsection (ii) refers to goods held out to the public.
First, we have covered services in subsection (i). Subsection (ii) refers only to establishments that hold goods out to the public.
Senator Ervin. The bill speaks of those who hold goods out to be used. Certainly when a fellow has some polish and puts it on shoes it is being used.
Attorney General KENNEDY. That kind of an establishment is a service establishment. Could I answer, please? A service establishment is quite clearly covered in subsection (i). Subsection (ii) refers only to places that provide goods. In service establishments—the shoeshine establishment for instance we would have to have its accommodations or services provided to a substantial degree in interstate travel. If it was in a bus terminal or a railroad terminal, it would be covered. But if it is just an establishment that uses goods, incidentally, for instance, a barbershop that just puts some stuff on your hair—that kind of establishment would not be covered by (ii), but only by (i).
Senator Ervin. I notice your explanation depends on the assumption that only places and establishments do things instead of human beings that have places and establishments.
Attorney General KENNEDY. No.
Senator Ervin. If you are going to quibble in that way, this bill does not apply to anything, because the word “person” is not mentioned from line 6 on page 14 through line 3 on page 15.
Attorney General KENNEDY. I do not understand that, Senator.
Senator ERVIN. You are talking about persons. You are making the point that this bill refers to places and establishments” rather than people.
Attorney General KENNEDY. I am just reading from what is in the
Senator ERVIN. "Places and establishments" would be places and establishments run by people. If a shoeshine boy had any place where he shines shoes, he would have a place and he would be using his polish and if the English language means anything, he would clearly be covered.
Attorney General KENNEDY. Senator, I think there are two reasons why he is not covered. First, I question whether an individual shoeshine boy is a public place or an establishment. If you put him in with others, and have a store, I think then he becomes an establishment.
No. 2: I do not think such an establishment would be covered by
subsection (ii) which you read, applying to the goods held out. Subsection (i) applies to services.
Senator ERVIN. Sub-sub-section (ii) speaks of goods to be used. A. shoeshine boy certainly has polish to be used, a rag to be used, and a shoebox to be used.
Attorney General KENNEDY. Senator, he is performing a service. Just incidentally, he is also providing some shoeshine material, but he is performing a service. That is covered in subsection (i).
Senator Ervin. It is also covered in (ii) if a substantial portion of the goods he holds out for use have moved in interstate commerce.
Attorney General KENNEDY. Senator, I do not think that reading paragraph (3), (i), (ii), (iii), and (iv), you would reach that conclusion. If it is confusing, we would be glad to clarify subsection (ii).
Senator ERVIN. You have admitted that if shoeshine boys work in a shoeshine parlor, they would be covered.
Attorney General KENNEDY. No; I don't think I am making myself clear. They would not be covered unless they came under subsection (i), which covers places whose services are provided to a substantial degree to interstate travelers.
They would not be covered by subsection (ii) at all. What they are providing is services, not goods.
Senator Ervin. You said you thought they would be covered if they had an establishment where there were a number of shoeshine boys.
Attorney General KENNEDY. Senator, only under subsection (i). Therefore, in airports, railroad stations they would undoubtedly be covered. They would only be covered if they met the qualifications under subsection (i). They would not be covered under subsection (ii), because what they are offering is services, not goods.
Senator Ervin. Sub-sub-section (ii) speaks of a substantial portion of any goods held out to the public for use.
He holds out his polish, he holds out his shoeshine rag, and holds out his shoebox to the public for use.
Attorney General KENNEDY. Let me say, Senator, first you cover services specifically in subsection (i). Subsection (ii) refers, I think quite clearly, if you read the whole paragraph, only to the sale of goods. If there is confusion about it, Senator, we would be glad to place in there
Senator Ervin. I don't think there is any confusion. I think it is clear that sub-sub-section (ii) is a part of subsection (3), which appears on lines 6. to 13 on page 14. Subsection (3) covers “any **** establishment where goods, services, facilities, privileges, advantages, or accommodations are held out to the public for sale, use, rent, or hire if * * * a substantial portion of any goods held out to the public by any such place or establishment for sale, use, rent, or hire has moved in interstate commerce.'
Attorney General KENNEDY. Senator, that would be peripheral sale of goods at best. I do not think the law concerns itself with such minimal transactions. I think it is quite clear, from reading this whole section that we did not intend to cover in subsection (ii) those establishments which just offer goods as a peripheral part of their services.
Senator ERVIN. The word "use" cannot mean sale.
Attorney General KENNEDY. Could I just finish my answer?
Attorney General KENNEDY. If there is any confusion about that, and I don't think there should be, all we have to place in there is a reference to places that promote goods or sell goods, a substantial portion of which are held out to the public. So then there cannot be any confusion.
Senator Ervin. The word "use” means for use of the public.
Senator KEATING. Mr. Chairman, could I address an inquiry before we recess to the distinguished Senator from North Carolina ?
The CHAIRMAN. Yes.
Senator KEATING. Could the Senator advise us at all about a statement as to how long he might be questioning the Attorney General ?
Senator Ervin. I cannot tell you because we have to deal with answers as well as with questions. I expect to explore the meaning of this bill. I have heard that this bill is not going to come up in the Senate until some time after Labor Day, and I have been told that Congress will be in session until Christmas Eve or thereabouts.
Senator KEATING. Well, Mr. Chairman, I think that if we go on with this colossal debate, we may be here until Christmas. But I wonder if this would be a reasonable request? The Committee on Commerce has been meeting after the Senate adjourns to deal with a very important railroad problem. I wonder if we could meet after the Senate adjourns in order to deal with this problem?
The CHAIRMAN. I will take it up with the committee and see about having a quorum.
Senator Ervin. I will say to my friend from New York that I consider this bill a most_drastic piece of legislation. I think it is bad in several respects. I think some of its salient features are unconstitutional and have been so declared. And I think it is also bad in that it robs all Americans of basic economic, legal, personal and property rights for the benefit of only a portion of the population.
Also, I think that this bill vests in the President, the Attorney General, and the Federal Commissioner of Education vast discretionary powers which are to be exercised by them according to their respective caprices or whims or good intentions.
I think that vesting such discretionary powers in Government officials is the shortest cut to governmental tyranny. I am going to try to find out all that is in this bill before I get through.
Senator KEATING. I recognize the sincerity of the Senator's intentions, but it seems to me that the Senator's remedy would be to oppose the bill and to vote against it. We certainly cannot take on the obligations of the judicial branch of the Government. I happen to be satisfied as to the constitutionality of the bill on both grounds, the commerce clause and the 14th amendment. It seems to me that has to ultimately be decided by the Supreme Court anyway, and that we ought to get on with our work here.
That is my reason for making the suggestion for expediting this procedure.
Senator Ervix. I have a little difficulty getting on with my work because my friend the Attorney General comes down and admits that the courts have declared these things unconstitutional and then predicts that they will reverse their rulings.
Attorney General KENNEDY. Senator, that is not an accurate account.
Senator ERVIN. Did you not state
Attorney General KENNEDY. Just give it in the whole context. I said I thought this bill, this aspect of the bill was clearly constitutional under the commerce clause and I think that based on the changed situations in the country since 1883, the Supreme Court would now declare them constitutional under the 14th amendment.
Senator Ervin. That is exactly what I said.
Senator KEATING. I do not think you gave the full explanation, Senator.
Senator Ervin. I have a little difficulty. I am reminded of the old lawyer who was invited to speak to a law school. He said, “I would advise you under no circumstances to ever look up the law before you try the case, because you might find the law is against you and that will cause you to lose confidence in your case and it is very important for the lawyer to have confidence in his case."
Then one of the students said, "What are you going to do if the other side looks up the law and brings it into court and uses it against you ?"
He said, “That is easy. All you have to do is say to the judge, “This is bad law and ought to be overruled."" The CHAIRMAN. We stand adjourned.
(Whereupon, at 12:15 p.m., the committee adjourned, subject to the call of the Chair.)