Mr. MARTIN. On the contrary, we would welcome any action of Congress that will tend to restore free and fair competition and destroy monopoly. But we would ask Congress to guard against a danger that we foresee, that we are advised against, to take those steps, because it would involve us in a lot of new litigation about the proper interpretation of the antitrust law. And I think that is a reasonable request on our part, and especially in view of the fact that we have made it on the ground that the antitrust law has not had a fair chance yet.

Senator ČUMMINS. You say that you still want an antitrust law containing the prohibition that the Sherman antitrust law does against restraint of trade, and the same prohibition with respect to formation of monopoly, and the attempt to form monopoly, but otherwise you stand against any changes in the law on the subject which would add to the power of the Government in oppressing monopoly and restoring competition.

Mr. MARTIN. Upon that point I should say that our bill to create a department of transportation would be in effect to restrain the operations of trusts, and yet it would not be an amendment to the antitrust law. Our bill to prohibit the interlocking boards of directors, which is now pending, would be in effect to restrain the operations of the trusts and to prevent the successful execution of their conspiracies to monopolize interstate commerce, and yet it would not be an amendment to the interstate-commerce law that would involve the law in the danger of the litigation that would mean so much delay. That is the line that we believe in pursuing at the present time, and I have given our reasons for so doing.

Senator CUMMINS. I think that is all, Mr. Chairman.

The CHAIRMAN. Senator Newlands, you may proceed with the inquiry.

Senator NEWLANDS. Mr. Martin, I understand that you do not object to legislation supplemental to the Sherman antitrust act which will not change its terms or prevent in any way the present efforts made to enforce that act?

Mr. MARTIN. Provided otherwise they are in accord with the policies we believe in.

Senator NEWLANDS. I understand that you are in accord with the policies that are intended to permit free competition, although you fear that if any effort is made to amend the antitrust act it might weaken it instead of strengthening it; and you feel confident now that the Supreme Court has made, has given such an interpretation to that act, that if the Supreme Court is finally consulted in all these questions now being determined by the circuit court the result will be favorable to the contentions of those who are opposed to these combinations of monopolistic tendencies. Do I correctly state your position?

Mr. MARTIN. I think I can assent to that.

Senator NEWLANDS. Now, take the antitrust act itself, do you think it would not have been wiser at the start if that act had provided that the administration and the enforcement of the act, either in an administrative way or through prosecutions in the court, should be intrusted to a commission like the Interstate Commerce Commission. instead of to the Attorney General's Office-do you think that would have been beneficial?

Mr. MARTIN. No; I do not. I think it would be far wiser to keep the administration of the law in the hands of our executive officers whom Congress should hold responsible, and who, with his corps of assistants, can act instantly to meet all emergencies and contingencies, and that there should be no divided council. Give him the power to enforce the law, and hold him responsible by the supervisory power of Congress. I think that is the settled policy of the most civilized nations, and I do not think that it would be wise to depart from that practice.

Senator NEWLANDS. And yet you realize, do you not, that the administration of this act by the Attorney General's Office during the past 23 years, and without reference to the present incumbent, has not been satisfactory?

Mr. MARTIN. That is true, Senator; and if you will permit me to say it, we find sometimes in our big cities, like New York and Chicago, that the enforcement of the law against gambling and other forms of vice and criminality are not well enforced because of the organized power of money and cunning interested in those violations. of the law is so great that they find it possible to hobble the enforcement of the law and the administration of justice. Then when you multiply that power by millions and raise it to the power of billions, as in the case of the combined trusts, of course, they would hobble anybody to a certain extent and for a time. What we believe is that the brave and fearless Government officials who attempt to enforce the law against this terrible and menacing and revengeful opposition should be encouraged, and those who fail should be relieved of their duties and courageous men put in their places who will enforce it. Senator NEWLANDS You do not think, then, that this weakness of prosecution is inherent in the organization of the Attorney General's Office, the incumbent being frequently changed?

Mr. MARTIN. Not at all, Senator.

Senator NEWLANDS (continuing). The incumbent being subject to executive control?

Mr. MARTIN. Not at all. They enforce the laws against smuggling and against counterfeiting and against other crimes.

Senator NEWLANDS. And the administration itself being subject also to political influence at critical times, when elections are to be held and when these great interests can exercise a powerful influence? Mr. MARTIN. That is one of the things that hinders it. I agree with you there. But there is nothing inherent in the organization or in the form of the organization of the Department of Justice that should impede the proper and thorough enforcement of this law. The law against smuggling is thoroughly enforced by the Department of Justice, the law against illicit distilling and the revenue law, and the law against counterfeiting are enforced with great rigor, and almost with perfect exactness. So that there is nothing, we believe, inherently weak in the organization of the Department of Justice. It is only that the other departments of the Government, especially Congress, should see that the executive department, and especially the Attorney General, is properly backed up and encouraged and, if necessary, driven to enforce the law against these trusts. Senator NEWLANDS. You stated that the meaning of the antitrust act has been well settled. I presume you refer by that to the decisions of the Supreme Court, do you not?

Mr. MARTIN. The many decisions bearing upon that question.

Senator NEWLANDS. You say that your organization is not satisfied with the decision that has been recently reached in the tobacco. case in New York?

Mr. MARTIN. We are not, so far as we are advised as to the terms of it. We have not seen the final decree yet.

Senator NEWLANDS. You say that that case is not yet completed, and indicate that further proceedings can be had-I presume by way of appeal to the Supreme Court of the United States?

Mr. MARTIN. And otherwise.

Senator NEWLANDS. How do you expect to accomplish that when the Government has assented to the decree?

Mr. MARTIN. Of course the Supreme Court has it within its discretion to recognize an appeal from that, even if not made by the Attorney General.

Senator NEWLANDS. By whom?

Mr. MARTIN. By the parties in interest.

Senator NEWLANDS. You mean by the parties in interest, you mean the parties to the suit?

Mr. MARTIN. Parties who may satisfy the court that justice would fail if they were not given an opportunity to be heard.

Senator NEWLANDS. Have any such parties intervened in your case?

Mr. MARTIN. Yes, sir.

Senator NEWLANDS. What parties?

Mr. MARTIN. Counsel for the Independent Leaf Tobacco Dealers' Association made such a request in New York day before yesterday, and have taken the necessary technical steps to accomplish that end, and he will be supported in that contention by our organization and by other branches of the independent dealers, and our organization, speaking in behalf of the consumers, whom, we believe, are not greatly overjoyed by it. It is also contemplated that, as representing the consumers, we will ask for a new proceeding or institute a new proceeding against the United Cigar Stores Co., which is a branch of the trust which comes directly in collision with the consumer and makes him mad, and makes him feel that it has practiced an injury and a swindle upon him.

Senator NEWLANDS. Well, these independent producers hope to be made parties to the suit and take an appeal to the Supreme Court? Mr. MARTIN. I believe so. That phase of the matter is in the hands of our attorneys, and they are working it out as best they can. Senator NEWLANDS. That is what you meant when you said the case was not yet completed?

Mr. MARTIN. That is only one part of what I meant. I meant very much more serious steps than that would be taken if it became necessary to take them.

Senator NEWLANDS. What other steps?

Mr. MARTIN. I do not know that I am justified in stating at this time what they are.

Senator NEWLANDS. I beg your pardon.

Mr. MARTIN. Pardon me, I do not mean to be at all discourteous, Senator, in my reply, but the matter has not been fully elaborated yet, and it is largely a matter of the advice of counsel, involving grave legal questions, which I, as a layman, am not fully qualified

to deal with, and perhaps in justice to myself as well as to the committee, I ought not to attempt to go into the facts of the matter that I am not able to satisfactorily explain.

Senator NEWLANDS. It is not my intention to press you unduly on that line.

Mr. MARTIN. I will say, however, that I have endeavored to get the consent of our counsel to address you a letter, or a letter to the chairman of the committee, embodying our views on that point, and make them a part of my testimony, if you desire it. I do not feel that I am justified in answering your question definitely just at this moment, but I think I may be able to do it by letter very soon.

Senator NEWLANDS. If the result should be that these applications to be made parties to that proceeding by independent companies should fail, that the reorganization of the Tobacco Trust should rest upon the judgment of the circuit court of New York instead of the judgment of the United States Supreme Court, would you then insist upon your contention that the antitrust act should not be amended?

Mr. MARTIN. That is a hypothetical question, Senator, and I think we should cross that bridge when we come to it. I do not think we are in any danger of meeting that question now.

Senator NEWLANDS. Then, I understand your hope for a successful realization of all you speak of from the antitrust act rests upon the ultimate decision of the Supreme Court itself in all of these matters of reorganization and not upon the decision of the lower court.

Mr. MARTIN. Oh, well, we recognize and are glad of the fact that the Supreme Court seems to give always and generally a better and more thoroughgoing interpretation of the law than some of the lower courts do, and that that is a very encouraging sign to us, because we look upon the Supreme Court as the highest legal authority; and when we find the highest legal authority leading our way and inclined to say, and in fact saying, that the things that we complain of are wrong and turn their orders over to the sheriff to execute them, it is up to the sheriff then to do his duty. The President and the Attorney General are the sheriff in these cases. Then it is up

to them to do their duty. It is not like the sheriff, who said to a man, "You are condemned to hang; we will let you hang yourself." "All right," he said, "I will do that some time in the future." We do not consider that anything like that will grow out of the decision. of the Supreme Court of the intention or the law.

Senator NEWLANDS. But that hope of realizing an efficient reorganization of the Tobacco Trust rests upon the Supreme Court; does it not in that particular case rest upon the Supreme Court?

Mr. MARTIN. We still have some hopes that both Congress and the President will render some assistance in the matter. In fact, we feel quite sure they can and will.

Senator NEWLANDS. How would you expect Congress to act in this matter-by legislation?

Mr. MARTIN. Rather by the exercise of its supervisory power over the judicial and executive departments.

Senator NEWLANDS. In that individual case, how would you call upon Congress to act in a supervisory way?

Mr. MARTIN. Well, I should have Congress take steps, and this is a very important phase of this matter, Senator-I would have

Congress take steps to hold this matter where it is, by any exercise of the power they can, until it is known just what this thing is that it is proposed to be known.

Senator NEWLANDS. That would mean legislation, would it not? Mr. MARTIN. I will endeavor to get to that a little bit later, because that is somewhat of a new and complicated matter, but I think it can be done. I would have Congress, to state it roughly and briefly, take steps to hold this matter from going to a consummation until it was known fully and thoroughly, and the people of the United States, as well as the Supreme Court and the President and Congress, just what there is involved in this scheme. This is a parting of the ways.

Senator NEWLANDS. Just tell me what definite form of action Congress can take in that direction, except by legislation.

Mr. MARTIN. The only step Congress could take. It could bring the Government attorneys in charge of that case here to this committee and bring the documents and evidence in the case here; bring the attorneys of the Tobacco Trust and bring the members of the Tobacco Trust themselves, for that matter, and bring everything connected with the proceedings, from the presiding judge of the circuit court down here, and see what was actually done in that case. It was done behind closed doors, to a great extent. Now, let us see what was done. We believe that somebody was either overpersuaded or deceived into agreeing to a plan that is a failure and the defeat of the ends of justice, and before that is consummated, in a matter involving such immense interests and such a far-reaching precedent as is involved in this case, we think the whole searchlight of full knowledge should be turned upon it.

One of the reasons why the antitrust people are devoting a great part of their time to the investigation of the Steel Trust, the railroad and money trusts, and attempting to bring cases against them, and has given very serious attention to this tobacco matter, was because we saw it plainly indicated by the representatives of the opinion of the organized trust powers in Wall Street that this tobacco thing was to be made a breaking down of a length of the fence in the antitrust law, which has the trusts herded in the field; and if the Tobacco Trust were able to get out of the fence, all the rest of the trusts would rush out and get away, too. We do not propose to have such a break made in the antitrust law by the consideration of any legal or technical means, if we can help it, and we appeal to the Senate and to Congress and to the President and to public opinion to aid us in preventing the breaking down of a length of the fence in this law which may allow the escape technically of almost all of these great trusts that have been robbing the public for so long.

Senator NEWLANDS. Then you expect Congress to act in this matter through its powers of inquiry?

Mr. MARTIN. And supervision.

Senator NEWLANDS. What would you expect the President to do? Mr. MARTIN. He can give directions to his subordinates, the district attorney and the Attorney General, and so on.

Senator NEWLANDS. To do what?

Mr. MARTIN. To appeal a case and get it before the Supreme Court for review, which will bring out the facts and will cause the idea of the Supreme Court to stand.