over one count and leave it with jurisdiction over the other, even though those two counts were complementary methods of attacking the same methods of pricing.

Mr. O'HARA. Why do you say this bill would deprive the Federal Trade Commission of jurisdiction? You would certainly have the jurisdiction to investigate and prosecute.

Mr. WOODEN. I am speaking, of course, of its quasi-judicial function. I should have made that qualification.

In the course of its opinion the Court dealt with various aspects of the Commission's function of itself trying and deciding the cases which Congress authorized it to initiate and which function this bill would take away. The bill rests in part upon the theory that there is something contrary to the public interest in combining the functions of investigation, prosecution, and decision in the hands of a single agency.

In the Cement case the Commission's order was attacked on the ground of alleged bias as evidenced by the Commission's prior reports to Congress based on ex parte investigations of the basing-point problem.

The Supreme Court rejected the argument, stating, among other things not relevant here, that otherwise the

experience acquired from their work as Commissioners would be a handicap instead of an advantage (p. 16).

Incidentally, the Court also declared that there is nothing contrary to the constitutional requirement of procedural due process

for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law (p. 17).

No informed opinion as to the economic and legal status of such a practice as the basing-point system can be reached without specialized expert study and judgment such as only an administrative body like the Commission can provide. But the Supreme Court went on to say:

In the Keppel case the Court called attention to the express intention of Congress to create an agency whose membership would at all times be experienced, so that its conclusions would be the result of an expertness coming from experience. We are persuaded that the Commission's long and close examination of the questions it here decided has provided it with precisely the experience that fits it for performance of its statutory duty. The kind of specialized knowledge Congress wanted its agency to have was an expertness that would fit it to stop at the threshold every unfair trade practice that kind of practice, which if left alone, "destroys competition and establishes a monopoly" (p. 35).

Again the Court recognized the special competence of the Commission to make its own decisions in this field of law enforcement by saying that reviewing courts—

should not lightly modify the Commission's orders made in efforts to safeguard a competitive economy" (p. 40).

In that connection the Court stated:

In the present proceeding the Commission has exhibited the familiarity with the competitive problems before it which Congress originally anticipated the Commission would achieve from its experience (p. 41).

The significance of such condemnation from the Court is accentuated by these facts which the Court set out in its opinion. Pointing out that the court below had split 2 to 1 against the Commission, and that

the respondents were an organization composed of 74 corporations and a number of individuals, it went on to say:

It took 3 years for a trial examiner to hear the evidence which consists of about 49,000 pages of oral testimony and 50,000 pages of exhibits. Even the findings and conclusions of the Commission cover 176 pages. The briefs with accompanying appendixes submitted by the parties contain more than 4,000 pages. The legal questions raised by the Commission and by the different respondents are many and varied.

The significance of the Court's comment is further accentuated by the fact that it vindicates a statement of Attorney General Cummings, made before the Cement case was started, in a published letter dated April 26, 1937, addressed to the President of the United States.

Recommending the appointment of what later became known as the Temporary National Economic Committee, the Attorney General referred back to the Commission its suggestion that he attempt the remedial solution of the basing point question, stating that "a problem is presented which can be more satisfactorily investigated and dealt with through the more flexible remedies of the Federal Trade Commission," that "the administrative and quasi-judicial remedies" in its hands "may be better adapted to the control of the subject matter" than action by the Attorney General, and that "the machinery of the courts is not geared to the handling of the social and economic factors necessarily involved."

Moreover, the Supreme Court was sufficiently impressed with the vigilance of the Commission in this area of its jurisdiction to mention in the Cement case opinion that up to October 1939 the Commission had issued "a total of 267 orders to cease and desist in cases involving cooperation, conspiracy, or combination" (footnote, p. 6).

More than a year ago in deciding litigation between private parties growing out of an alleged violation of the Clayton Act, as amended, the Supreme Court observed that the Commission

is the appropriate tribunal to hear in the first instance the complicated issues growing out of grievances against a quantity discount practice of a seller (Bruce's Juices, Inc. v. American Can Company, 330 U. S. 743, 745.)

While this bill does not touch the Commission's Clayton Act jurisdiction, every argument in favor of it could logically be used against the Commission's retention of such jurisdiction.

In the Bruce's Juices case, the Court also that that:

The economic effects on competition of such discounts are for the Trade Commission to judge. Until the Commission has determined the question, courts are not given guidance as to what the public interest does require concerning the harm or benefit of these quantity discounts on the ultimate public interests sought to be protected in the act (ibid., p. 746).

Even the dissenting opinion in which four of the justices concurred stated:

It may be granted that the Federal Trade Commission has more technical knowledge and experience in dealing with the complexities of this problem than most courts; and the Commission's judgment would be of inestimable value to any judge called upon to deal with quantity discounts (ibid., pp. 764–765).

This bill if enacted would lay the basis for a later and similar bill which would deprive the courts of the benefit of the Commission's expert judgment, its guidance, and its findings of fact as to the economic effects of quantity discounts in an adversary proceeding under the Clayton Act as amended.

The continuance of the Commission's prosecuting functions which this bill would permit would not meet the need which the Supreme Court unanimously recognized in the Bruce's Juices case.

The cement industry urged the Supreme Court to hold that jurisdiction over combinations in restraint of trade is vested exclusively in the Department of Justice and in the courts. But the Court in rejecting that contention said:

But on the whole the act's legislative history shows a strong congressional purpose not only to continue enforcement of the Sherman Act by the Department of Justice and the Federal district courts but also to supplement that enforcement through the administrative process of the new Trade Commission. Far from being regarded as a rival of the Justice Department and the district courts in dissolving combinations in restraint of trade, the new Commission was envisioned as an aid to them and was specifically authorized to assist them in drafting of appropriate decress in antitrust litigation.

All of the committee reports and the statements of those in charge of the Trade Commission Act reveal an abiding purpose to vest both the Commission and the courts with adequate powers to hit at every trade practice, then existing or thereafter contrived, which restrained competition or might lead to such restraint if not stopped in its incipient stages (pp. 7-8).

It is obvious that this bill is framed on the theory that the Commission and the courts are rivals and competitors instead of being joint instrumentalities set up by Congress to make effective the fundamental public policy of safeguarding a competitive economy. In the latter connection, the Court stated:

We can conceive of no greater obstacle this Court could create to the fulfillment of these congressional purposes than to inject into every Trade Commission proceeding brought under section 5 and into every Sherman Act suit brought by the Justice Department a possible jurisdictional question (p. 8).

I believe that the only obstacle to the fulfillment of those congressional purposes that is conceivably greater than the one referred to by the Supreme Court would be the enactment of a bill such as this. To my mind it is comparable to proposing that the Government in its neverending struggle against its strongest, most wily and resourceful antagonists, should cut off one of its own arms just after the reach, the power, and the dexterity of that arm have been dramatically demonstrated.

While it is conceivable that the bill could be amended so that the Commission would continue to function against monopolistic practices as it now does and have other cases such as false and misleading advertising tried by the Commission in the Federal district courts, that would merely serve to isolate more completely the source of the support which the bill may command in the business world.

On the other hand, the success of the Commission in the Cement case is of such propositions that it is already indicated that Congress may be called on to change the law so as to conform with business practice. In any event, it is to be hoped that the business world affected by the decision will not join in the proposal to cripple the functions of an agency which has such potentialities for protecting the competitive system of free enterprise against self-destruction by the pursuit of profit through methods that, are now judicially branded as unfair and unlawfully discriminatory.

This bill is based on the major premise that Congress has made a serious mistake in setting up an agency and committing to it the regulation of commerce among the States by a commingling of investi

gating, prosecuting, and deciding functions; that provision for judicial review of its decisions is not adequate protection against abuse; and that the only remedy is to dismember the agency by cutting off its power of initial decision and scattering that function among the 85 Federal district courts and 190 district judges. By so doing it is expected to revive the doctrine of separation of powers and of checks and balances on which our Federal system is founded and which intermingled administrative functions disregard. As an abstract proposition the argument is not without an initial impact on the mind, nor is it without subtle appeal to the emotions.

Without attempting a comprehensive analysis and defense of the administrative process in its larger aspects, there are some phases of the matter which deserve careful consideration in connection with this bill. In the first place, it should be recognized that it has never been and will never be possible to divide governmental powers neatly and cleanly between the legislative, executive, and judicial branches of our Federal system.

This was recognized by Arthur Vanderbilt, former president of the American Bar Association, member of the Attorney General's Committee on Administrative procedure, and now chief justice of the highest court of New Jersey. He testified before the subcommittee of the Judiciary Committee of the Senate in July 1941 as follows:

Now, we are not contending that the separation of powers ever was absolute or that it would be absolute. We realize that the courts, in the exercise of the rule-making power and in handling down decisions making new law, necessarily legislating.

We realize that the courts in punishing for contempt and exercising jurisdiction over the officers of the court, the marshals and clerk and attorneys, are necessarily exercising executive power. We realize that the legislature, when it decides upon the qualifications of its own members or passes upon the conduct of its members or sits in impeachment proceedings, is acting judicially; and we realize that the legislature, in punishing for contempt, is acting executively.

We realize that the executive, when it issues ordinances and proclamations, or determines conditions upon which stautes shall be effective, is acting in a legislative capacity, and that when, by long custom, it makes decisions as to the amounts due from revenue officers it is necessarily adjudicating. (Hearings on administrative procedure on S. 674, S. 675, and S. 918, 77th Cong., 1st sess., pt. 3, p. 1308.)

The chairman of the committee this morning suggested that possibly Mr. Vanderbilt might be called upon to testify in connection with this bill, and I would like to add my support to that suggestion, particularly in view of Mr. Vanderbilt's close connection with the Administrative Procedure Act, which we contend has removed to whatever extent was necessary, any imperfections in the Commission's administrative process.

Mr. Vanderbilt characterized the commingled functions he listed as necessary, inevitable exceptions to the doctrine of separation of powers and stated that

nobody but a poltical purist would object to additional occasional or temporary or emergency exceptions to the doctrine.

Nevertheless, he regarded the growth of administrative tribunals with commingled powers as overshadowing the judicial and legislative branches of the Government and the separation of their functions as something

which seems to be definitely called for if we are going to respect the fundamental doctrine that has characterized both the English and American constitutional development over the centuries" (ibid., p. 1309).

It is our contention—and I would like to know whether Mr. Vanderbilt would agree with it-that the Administrative Procedure Act has done what has been claimed for it.

In the next place, neither Congress, the President, nor the courts have put into practice the abstract doctrine of a separation of powers such as inspires this bill.

In an article entitled "Power of Congress Over Procedure in Criminal Contempts in Inferior Federal Courts-a Study in Separation of Powers" (37 Harvard Law Review, 1924, p. 1010) the Honorable Felix Frankfurter, now Mr. Justice Frankfurter of the Supreme Court, and James M. Landis, later dean of the Harvard Law School, state:

The Supreme Court has not invalidated a single act of Congress as offending the doctrine of separation of powers on any philosophic or historic interpretation of that doctrine (p. 1016).

The distinguished authors pointed out that the doctrine of separation of powers had grown out of the fear of tyranny in Government through undue concentration of power, commenting:

The environment of the Constitution, the debates at Philadelphia, the writings in support of the adoption of the Constiution, unite in proof that the true meaning which lies behind "the separation of powers" is fear of the absorption of one of the three branches of government by another. As a principle of statesmanship the practical demands of government preclude its doctrinaire application. The latitude with which the doctrine must be observed in a workaday world was steadily insisted upon by those shrewd men of the world who framed the Constitution and by the statesman who became the great Chief Justice (Marshall, ibid., pp. 1012-1013).

Quoting from the Federalist, the authors showed that Madison had no such doctrinaire concept of a hard and fast separation of powers and that according to Madison the doctrine did not contemplate even in the mind of Montesquieu, its great French protagonist, that the legislative, executive, and judicial departments—

ought to have no partial agency in, or no control over, the acts of each otherbut simply that—

where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted (ibid., p. 1012).

Quoting from a distinguished compatriot of Montesquieu, that the separation of powers is "merely a formula, and formulas are not working principles of government," and from Madison that it was merely a "political maxim," the authors went on to say that we are dealing with a political doctrine and not a technical rule of law. They stated that the Supreme Court had never treated it as a technical legal doctrine but from the beginning

has refused to draw abstract, analytical lines of separation and has recognized necessary areas of interaction.

After citing numerous cases to support that statement, the authors continued:

Even more significant than the decisions themselves are the considerations which induced them, and the insistence on an abstract doctrine of separation of powers which they rejected. "The necessities of the case," "to stop the wheels of government," "practical exposition," are the variations in the motif of the decisions (citing cases).

The dominant note is respect for the action of that branch of the Government upon which is cast the primary responsibility for adjusting public affairs. The accommodations among the three branches of the Government are not automatic.