_To the Senate and House of Representatives_:
I have signed the joint resolution “instructing the Interstate
Commerce Commission to make examinations into the subject of railroad
discriminations and monopolies in coal and oil, and report on the same
from time to time.” I have signed it with hesitation because in the
form in which it was passed it achieves very little and may achieve
nothing; and it is highly undesirable that a resolution of this kind
shall become law in such form as to give the impression of insincerity;
that is, of pretending to do something which really is not done. But
after much hesitation I concluded to sign the resolution because its
defects can be remedied by legislation which I hereby ask for; and it
must be understood that unless this subsequent legislation is granted
the present resolution must be mainly, and may be entirely, inoperative.
Before specifying what this legislation is, I wish to call attention
to one or two preliminary facts. In the first place, a part of the
investigation requested by the House of Representatives in the
resolution adopted February 15, 1905, relating to the oil industry,
and a further part having to do with the anthracite coal industry, has
been for some time under investigation by the Department of Commerce
and Labor. These investigations, I am informed, are approaching
completion, and before Congress adjourns I shall submit to you the
preliminary reports of these investigations. Until these reports
are completed the Interstate Commerce Commission could not endeavor
to carry out so much of the resolution of Congress as refers to the
ground thus already covered without running the risk of seeing the two
investigations conflict, and therefore render each other more or less
nugatory. In the second place, I call your attention to the fact that
if an investigation of the nature proposed in this joint resolution
is thoroughly and effectively conducted, it will result in giving
immunity from criminal prosecution to all persons who are called, sworn
and constrained by compulsory process of law to testify as witnesses;
though of course such immunity from prosecution is not given to those
from whom statements or information, merely, in contradistinction to
sworn testimony, is obtained. This is not at all to say that such
investigations should not be undertaken. Publicity can by itself often
accomplish extraordinary results for good; and the court of public
judgment may secure such results where the courts of law are powerless.
There are many cases where an investigation securing complete publicity
about abuses and giving Congress the material on which to proceed in
the enactment of laws, is more useful than a criminal prosecution can
possibly be. But it should not be provided for by law without a clear
understanding that it may be an alternative instead of an additional
remedy; that is, that to carry on the investigation may serve as a bar
to the successful prosecution of the offences disclosed. The official
body directed by Congress to make the investigation must, of course,
carry out its direction, and therefore the direction should not be
given without full appreciation of what it means.
But the direction contained in the joint resolution which I have signed
will remain almost inoperative unless money is provided to carry out
the investigations in question, and unless the Commission in carrying
them out is authorized to administer oaths and compel the attendance of
witnesses. As the resolution now is, the Commission, which is very busy
with its legitimate work and which has no extra money at its disposal,
would be able to make the investigation only in the most partial and
unsatisfactory manner; and moreover it is questionable whether it
could, under this resolution, administer oaths at all or compel the
attendance of witnesses. If this power were disputed by the parties
investigated, the investigation would be held up for a year or two
until the courts passed upon it, in which case, during the period of
waiting, the Commission could only investigate to the extent and in the
manner already provided under its organic law; so that the passage of
the resolution would have achieved no good result whatever.
I accordingly recommend to Congress the serious consideration of
just what they wish the Commission to do, and how far they wish it
to go, having in view the possible incompatibility of conducting an
investigation like this and of also proceeding criminally in a court
of law; and furthermore, that a sufficient sum, say fifty thousand
dollars, be at once added to the current appropriation for the
Commission so as to enable them to do the work indicated in a thorough
and complete manner; while at the same time the power is explicitly
conferred upon them to administer oaths and compel the attendance of
witnesses in making the investigation in question, which covers work
quite apart from their usual duties. It seems unwise to require an
investigation by a commission and then not to furnish either the full
legal power or the money, both of which are necessary to render the
investigation effective.