Evening star., 1931-04-02
MITCHELL TO BACK
. DR.. SMITH IN FIGHT
Justice Department Makes
Announcement After Com
missioner Employs Pepper.

Justice Department oficialS today
served notice they would support "as
,'igorously as they knew how the ap-
pointment of Chairman Smith of the
Power Commission, whose confirmation
the Senate attempted to recall.
The announcement followed closely
the statement that former Senator
George Wharton Pepper OF Pennsylvania
would represent Smith in the legal con-
test.
The Senate appointed John w. Davis,
former Democratic presidential candi-
date to represent it in the test OF its
right to recall confirmation. President
Hoover declined to return Smiths name
to the Senate.
Promises Attention.
Attorney General Mitchell said the
impression had gained credence that,
because Smith would employ a counsel
of his own, the Justice Department had
placed entirely upon his shoulders the
burden OF defending the validity of his
appointment.
The Attorney General said this was
not the case, but that Federal attorneys
would give to the case the thorough
attention which It's importance de-
serves"
Earlier word had come from the
Justice Department that its attorneys
would appear in the case as friends Of
the court" Mitchell said this plan
would be followed in supporting Smith,
due to a technical question as to the
authority of the Attorney General to
appear as attorney for Federal ofncial
in such litigation.
Won't Discuss Fees.
DR.. Smith declined to say If Pepper
would serve without fee. His answer
was that the Pennsylvania accepted
the case as a public service
In formal statement DR.. Smith said
Pepper, had consented to act, rec
ognizing the case as one of great pub
lie Importance in the issues involved"
Pepper had previously refused to serve
as Senate counsel in the proceedings
and later Davis and former Gov. Alex
]. Groesbeck of Michigan, we're chosen
as Senate counsel.
Mr.. Pepper appeared at the request
of the United States Supreme Court as
friend of the court" to present the
constitutional questions involved in the
celebrated case Of Myers vs. the United
States several years ago.
In that instance, Myers. postmaster
at Portland, Greg, was removed from
Office at the direction OF President Will
son and fought his custer, contending
the President could not act without
consent of the Senate, by which his
nomination had been confirmed. The
Supreme Court, however, upheld the
Government.
Case without PareIleI.
The Smith case is without parallel.
The Senate instituted court action
when President Hoover refused to re-
turn for reconsideration the nomina-
ton of Chairman Smith after he al
ready had been sworn in.
The fight grew out Of the action of
DR.. Smith and Commissioners Draper
and Garsaud in dropping from the
commission Charles A. Russell, solicitor,
and William " King. chief accountant,
who had come into prominence through
their vigorous fight on power concerns
in valuation cases. King later was re-
stored to the commission.
The Senate called for the return OF
the nominations of the three commits
sioners. and when the President held
the request was without merit, pro-
ceeded to vote on them again. Draper
and Garsaud we're "reconflrmed," but
the vote was adverse to Chairman
Smith.
An appropriation of $4,000 was made
for Senate counsel and after Pepper
and others had revealed their inability
10 press the case for the Senate Davis
and GroeSbeck we're chosen.
It then developed that, though the
action of President Hoover in upholding
his commissioners was based on an
opinion from the Attorney General. the
Department of Justice could not furnish
counsel for Dr. Smith, but could only
act as friend of the court" and that
it would be necessary for him to obtain
his own counsel
The date when the litigation actually
will be started remains in doubt. Davis
has been i'll, and it was said this morn
ing at the Office of Senator Norris, Re-
publican, Of Nebraska, chairman OF the
subcommittee which handled the queS-
tion of obtaining counsel, that nothing
definite is known.
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