And I have had just a few days in which to work. So I did contact, as I say, somebody over at the White House and asked them what to do. I am sure the President of the United States had no knowledge of this. I am sure Secretary Volpe had no knowledge of it. I had no knowledge of it. He hadn't disclosed it to me and I was practicing in front of him. And he obviously would't disclose it in front of anyone unless he had

Senator COTTON. In just the one hearing he was sitting alone on this case as Chairman of the Public Utilities Commission?

Mr. CURTIS. The Public Service Commission, sir.

Senator COTTON. Were his colleagues sitting with him in hearing this telephone case?

Mr. CURTIS. Well, theoretically, theoretically there were three members. One was a general who was never there. And another one was Mr. Bernstein who tried to do a good job and was never reappointed. And third was Mr. Washington.

Senator COTTON. Was Mr. Bernstein present?

Mr. CURTIS. He was there most of the time.
Senator COTTON. Who was the next one?

Mr. CUTIS. The general was never present.

Senator COTTON. And there were only three members?

Mr. CURTIS. The three members total, and there usually were only two there, and Mr. Washington had the chair and he dominated the Commission. There was no question about that.

Senator COTTON. Well, the chairman always has the chair. This chairman has this chair but he doesn't dominate me.

The CHAIRMAN. I try, but I don't succeed.

Mr. CURTIS. I would feel much safer in the hands of Senator Magnuson than I felt in the hands of Mr. Washington. And I hope this is not regarded anyplace as an attack by me on an appointment of the President of the United States nor any attack against Secretary Volpe. I have the highest regard for both gentlemen.

But I do believe it in the best interest of Secretary Volpe and the interest of the President not to have this man approved and that is why I am here.

Mr. CHAIRMAN. May I clear up one thing.

Mr. Washington's affidavit setting forth all these things was subscribed and sworn to on May 14.

That is correct, isn't it? It is in your own brief.

Mr. CURTIS. Yes. Whatever it says there, that doesn't mean that I received it on May 14. I didn't receive it until I would say, oh, at the most 10 days ago.

The CHAIRMAN. I wanted to clear this up. So that those who might oppose Mr. Washington, including yourself, had from the timewell, you must have known that he made an affidavit.

Mr. CURTIS. I knew about it when they served me with it.

The CHAIRMAN. And had an opportunity, did they not, to notify the Secretary of this? Mr. Volpe.

Mr. CURTIS. Mr. Chairman, the difficulty is that there are so many papers filed in Washington that unless somebody takes it and sticks it under a fellow's nose and says look here, did you see this, he doesn't know about it. It is not a matter of being in the record, it is a matter of finding the record and having somebody call your attention to the record.

The CHAIRMAN. Well, you could have called attention to Mr. Volpe of this matter.

Mr. CURTIS. I called- excuse me, I didn't mean to interrupt.

The CHAIRMAN. At least in the past 10 days you could have called it to his attention.

Mr. CURTIS. I sent the papers over, Senator, to one of his administrative assistants. I don't know the gentleman's name. And he called me and he said that the White House contacted him, and if I wanted to send him the papers

The CHAIRMAN. So it would be correct, you don't know whether Mr. Volpe knew about this or not?

Mr. CURTIS. I would think it would be correct, and I would be very much surprised if Governor Volpe knows about this.

The CHAIRMAN. I am not talking about what does surprise you. I am saying as far as you know you don't know whether Mr. Volpe was apprised of this affidavit?

Mr. CURTIS. No, I do not know.

The CHAIRMAN. And I am sure the committee does not know whether he was or not. The best of it would be to ask him, I guess. Senator COTTON. You never attempted to telephone Mr. Volpe or his private secretary?

Mr. CURTIS. Senator, I received a call from an administrative assistant and he said I want you to know that the call that you placed to the White House is being returned. And he said if you have any information, send it to me. And then I sent him the material. This brief did not come back to me until 4:30 last night and I rushed it over to the Supreme Court, and I rushed copies over to Mr. Lordan last night.

So there wasn't time for Secretary Volpe to consider this.

Senator COTTON. What did you send to Mr. Volpe or to one of the assistants?

Mr. CURTIS. I sent the affidavit of Mr. Washington and Mr. Zahn to somebody in the office. Now, whether they got this

Senator COTTON. You sent your side of the case, didn't you?
Mr. CURTIS. I sent the affidavits.

Well, the affidavits-well, he is free to tell his side of the case. Senator COTTON. Since you were opposing Mr. Washington's confirmation or appointment on these grounds, you didn't content yourself with simply sending his side of the case down to the Department of Transportation? Didn't you send your own?

Mr. CURTIS. I don't know what his side of the case is.
Senator COTTON. You said that you sent his affidavit.
Mr. CURTIS. I sent his affidavit.

Senator COTTON. And Mr. Zahn's?

Mr. CURTIS. Yes, sir.

Senator COTTON. They both defend Mr. Washington. Didn't you send anything that indicated your charges against Mr. Washington? Mr. CURTIS. Well, I sent them a paper which I filed the day before the Supreme Court denied the petition for certiorari, which tried to summarize the case and point out as to the telephone rate case when it came up, that the telephone company had three of his children. under its employ, and that they then came in and said we want 8 percent which is more than any utilities commission has given a telephone company in the past and they wanted $10.5 million.

Senator COTTON. Didn't you really want to come here and get your petition into the record so as to attack Mr. Washington? I am beginning to wonder, because I can't understand why you didn't get your case down to the Department of Transportation and give them a chance, if it was grave, to withdraw this nomination. But, apparently you didn't push enough. You waited to be heard here publicly and get in the right court. I am not charging you with that. I am asking you whether this is correct.

Mr. CURTIS. Senator, no, no. I sent him what I had. I hadn't had time to research the law on the conflict of interest. As a matter of fact it wasn't until I sent him the affidavit and the papers that I had filed in the Supreme Court before the certiorari, the day before the certiorari, was denied. It wasn't until I had done that that I actually had an opportunity to resume the legal research on it. I went to the Supreme Court, and the librarian and I looked up these conflict of interest statutes.

Now, as a lawyer I am charged with knowing all the law. But I didn't know the wording of this conflict of interest statute. I didn't know it at all. As a matter of fact, exhibit C which you see here was placed into the brief yesterday after the rest of the brief was typed. And I have no intention of attacking Mr. Washington. I am simply bringing the facts here. If this constituted an attack, I can't help that. I am just bringing the facts here that he put in the record himself.

He admits that he had three children working for the telephone company while he was hearing a rate case. At no time is it alleged that he told me that so that I could move to disqualify him. He couldn't allege that. He alleges that I knew that one of his children was working for the telephone company. But he doesn't even allege that I knew three of his children were working for the telephone company.

Senator COTTON. You sent down to the Department of Transportation what he alleges. Yet in what form did you send down what you allege?

Mr. CURTIS. Well, the only thing in which I sent down what I alleged was the one-page or a two-page, I believe it was a two-page statement, which I had filed in the Supreme Court and in which I tried without giving citations, to summarize what this meant. And I asked them frankly does this constitute in view of the Court a conflict of interest. But I didn't have the statutes because I didn't have time to research it.

Now, that is where the matter stood. It could have been done in a better way, Senator, if I had had more time to work on it. But I heard a little rumor that the Court was going to decide this case the following Friday, which they did, and I didn't get the papers in until Thursday.

I don't know what they do at the Court there. Maybe if we had 90 Supreme Court Justices instead of nine, lawyers like myself who are small lawyers would have a better opportunity to get petitions for certiorari granted. I don't know. That is just something for the Senators. Senators have the right to consider this.

I don't even have any right to do that. The only right I have is to point out that I filed a petition for certorari, the day before they were denied on the Friday hearing. And I sent copies to Secretary Volpe's

office-I don't know whether he got them, but I mailed them. They didn't come back and I have been up to several courts of appeal on this question of delivery of mail. I have been up to the court of appeals in Richmond where somebody mailed me something and I didn't get it, and I lost the case.

And I came in with my affidavit and said I didn't get it and they said well, they still wouldn't hear it. So I don't know whether Secretary Volpe got it.

Senator COTTON. But in fairness to Secretary Volpe, you sent down some papers to the Department downtown. However, only the Lord knows who is going to see them or how long it will be before they do see them in this great bureaucracy of ours.

But it would seem to me you didn't at any time out of consideration to Secretary Volpe, for whom you indicate you have the highest respect

Mr. CURTIS. A very high respect.

Senator COTTON. Didn't you at any time take a telephone and call his office? Did you even talk to his own secretary and call attention to this fact or appraise him of this charge that you are making?

Mr. CURTIS. Senator, one of his administrative assistants called me and I then sent the papers over.

Now, I presume I mean I have reasonable faith in the mail. I don't believe honestly that Secretary Volpe knows anything about this as Senator Magnuson pointed out or as you pointed out that he may have spoken to you about it. I think he should be given an opportunity to consider this and then make his decision as to whether he wants you to approve the man or ask him to withdraw.

Senator COTTON. He would have known something about it if you called his office and even talked to his private secretary. I know it is hard to get ahold of a Cabinet officer right off on the telephone. If you just pass the word somebody would have alerted him to it.

Mr. CURTIS. In retrospect, now that you tell me that, I should have done this, Senator. It appears that maybe I should have. I say somebody called me from his office and said, "send the papers," and I sent the papers. And I presumed that the matter was taken care of. Senator COTTON. Don't tell me what you ought to do. I am trying to find out what you did do? And I am forgetting for the moment Mr. Washington. Secretary Volpe is a friend of mine. He discussed this appointment with me. I am a little concerned that perhaps Secretary Volpe did not have an opportunity to know about these things before they were aired today in this public hearing.

Mr. CURTIS. Senator, I was informed by Mr. Lordan yesterday by telegram that the hearing would be today. If the hearing had been a week today, I might have had some other people here today also opposing the nomination. However, this wasn't possible. I have a trial at 11 o'clock today, and when I leave here I hope the judge hasn't thrown me out.

The CHAIRMAN. You knew that Mr. Washington's name was before the Senate a long time ago. We have to set our hearings from day to day. The nomination was pending. You could have surely had time to marshal such forces as you felt were necessary to come when and if the hearing was going to be held. And I assure you, as chairman, if you have any more witnesses, we will be glad to hear them.

This is an open hearing.

Mr. CURTIS. I don't have any here today.

The CHAIRMAN. I don't expect you to do it today.
Off the record.

(Discussion off the record.)

The CHAIRMAN. On the record.

You have to make up the paper to put the brief in?

Mr. CURTIS. Yes, sir.

The CHAIRMAN. You don't have to wait till the printing is done in order to send it to Mr. Volpe. Sometimes the printing takes much longer. You made a petition.

Mr. CURTIS. Yes, sir.

The CHAIRMAN. And you could have sent him a copy of that. You didn't have to have the printed matter.

Mr. CURTIS. I had one copy, Senator, it was handwritten and I said the last part, section C, wasn't done.

The CHAIRMAN. The point I am making, we have no knowledge this morning from any testimony that Mr. Volpe has received anything that might cause him to take a look at the matter and see what it is all about.

Mr. CURTIS. Senator, may I offer two extra copies so that your office may send them to Secretary Volpe.

The CHAIRMAN. So we should then sent them? You are the petitioner and I think that you should send them down there and send them registered mail.

Mr. CURTIS. Senator Cotton, since he is a friend of yours, would you be interested in having them distributed through your office? Senator COTTON. The responsibility of any notification I think is yours. And I think in fairness you should discharge that responsibility. Now, you have been a member of the District Bar here for many years. Mr. CURTIS. Yes, sir; 1948.

Senator COTTON. And Mr. Washington has always been a member of good standing in the bar here.

Mr. CURTIS. I didn't meet Mr. Washington-I don't know anything about Mr. Washington except I met him at the hearing.

The CHAIRMAN. Well, we put in the record, Senator Cotton, a communication of the Washington Bar Association signed by the president saying, I have the honor and pleasure to inform you that the Washington Bar Association has unanimously urged the appointment of Mr. Washington to this position.

Mr. CURTIS. I would like to know if they know about the affidavits.

Senator COTTON. Since your admission to the bar here, you have always been in continuous good standing in the bar?

Mr. CURTIS. I have had one problem, Senator. I will admit, I had one problem. I had two clients, one who had been in an insane asylum. I tried a case for them. They came to me during the jury deliberation and said to me that they had just heard from the clerk that the jury foreman had gotten in to ask a question of the judge. And the man lost his case. The jury was out three and a half hours. He was a cripple and so in the motion for a new trial I stated that my clients allege that the jury foreman had contacted the judge during jury deliberations. Before I put that in there, I tried to call the judge's secretary and I made about a dozen calls. And I wasn't able to reach him. The judge came back and said he wanted an affidavit of the clients.