Mr. LEA. I suppose there might be some disposition of litigants to feel that their cases would be decided by the inferior court and they would still want to go to the higher court?

Mr. EASTMAN. Yes. I suppose that if the decision were against them, they would do as they now do when a decision is made by a division of the commission; they would file a petition for reconsideration by the commission. We have a good many such petitions at the present time. But it is not so difficult to act upon those, nor does it take as long a time, as to act upon a case initially.

Mr. LEA. I notice, in this table that you presented, that out of 1,175 cases, petitions for rehearing were filed in 509.

Mr. EASTMAN. Yes. That was, I think, an unusually large percentage in that particular year. But there are always a good many of those petitions.

Mr. LEA. I do not suppose you happen to have the statistics to show how many rehearings were granted there?

Mr. EASTMAN. No; but I could produce those.

Mr. LEA. Well, I would not want to put you to any trouble. It seemed to me rather doubtful whether or not it should be left to the litigants to decide whether their cases should be referred. What would you think of it if the litigants were not given that power to decide?

Mr. EASTMAN. Well, as I say, we would have no objection, because we originally proposed the measure without such a limitation. But we are entirely satisfied to have that limitation, because we hope and expect that the plan will work out so satisfactorily that we can obtain the necessary consent.

Mr. LEA. You believe the litigants would ordinarily consent?

Mr. EASTMAN. In cases which we think ought to be delegated that way.

Mr. HUDDLESTON. Where the litigants do consent, it would be more likely they will abide the decision without asking for a review of it by the commission; is that not so?

Mr. EASTMAN. I think that would follow.

Mr. HUDDLESTON. What additional expense will be involved by the operation of this bill?

Mr. EASTMAN. I think in response to a question by Congressman Shallenberger, I stated that no additional cost would be involved. Mr. HUDDLESTON. I did not hear Mr. Shallenberger's question. Mr. EASTMAN. Provided the commission is given no additional duties. Any additional cost would be involved by additional duties, and not by the provisions of this bill.

Mr. SHALLENBERGER. That is what I had in mind when I asked whether you would need additional employees. It would not necessarily follow that you would?

Mr. EASTMAN. Not at all.

Mr. BURTNESS. I take it that the authority to the commission to do its work in sections as provided a number of years ago, has worked out very satisfactorily?

Mr. EASTMAN. In my opinion, it has.

Mr. BURTNESS. Is it true unless such authority had been given there was the danger almost of a breakdown in the work of the commission; danger of inability to keep up with the work?

Mr. EASTMAN. That also is true.

Mr. BURTNESS. So this legislation is in substance purely an extension of the principle that was involved in that legislation?

Mr. EASTMAN. Yes, sir.

Mr. BURTNESS. But there is this substantial difference, as I see it. In that legislation, the delegation of the work or rather the assignment of the work went only to commissioners appointed by the President and confirmed by the Senate. One feature of this bill does not change that principle, where any work may be assigned to an individual commissioner. But the other feature, as I see it, where the duties may be delegated to a board consisting of employees, does vary from that original principle. I was wondering in my own mind whether it might be practical and whether it might bring you most of the relief that you have in mind, if this bill simply extended the provisions of the present law so that any of these functions may be turned over to-I do not know what I would want to call it;a board, on which, in each case there should be one commissioner who would, for instance, serve as chairman of the board. So that there would be upon the board performing these various important functions a responsible official appointed by the President and confirmed by the Senate?

Mr. EASTMAN. That, of course, could be done. It would not give the commissioners. as much relief as would the bill in its present form. Also, there are a good many precedents in Government service where Congress has authorized an executive department or a commission to delegate to agents appointed by that department or commission, certain duties. Some of those precedents are cited in the memorandum in regard to the constitutionality of this delegation of duties which I have been given permission to insert in the record, and which was prepared by Commissioner Aitchison. I have personally a feeling that there would be a good deal of advantage with respect to certain classes of cases in having men who specialized just on those cases. Take the one class I mentioned, interpretation of tariffs. That is a particularly appropriate subject for such specialization.

Mr. BURTNESS. It is technical and does not involve any broad principles or policies?

Mr. EASTMAN. Merely deciding what language means. As I say, it is important to have consistent interpretations, so that carriers will know how to draft their tariffs and shippers will know how they are going to be interpreted after they are drafted.

Mr. BURTNESS. In your opinion, then, it would not be practical or advisable to require a member of the commission to serve on each of these boards?

Mr. EASTMAN. I would not so recommend.

Mr. BURTNESS. Giving that authority would help to some extent; the extent which you have indicated?

Mr. EASTMAN. Yes.

Mr. BURTNESS. Is it contemplated by this legislation that if enacted this authority to refer a function to an individual commissioner would simply be so much language in the bill, and that portion of it would not be used to speak of, and that the main purpose of this bill is to give authority to refer work to such boards as are proposed, consisting of employees of the commission?

Mr. EASTMAN. No. There are various duties which are now performed by the commission which could appropriately be delegated to individual commissions and which now have to be handled by divisions. Some of those are very largely of a routine character. There is no reason in the case of such routine matters why three men should have to pass upon them instead of one. It might also be that the commission as a whole would prefer to have certain matters delegated in the manner in which you suggest rather than to boards of employees. I can not tell you how that will work out. That will depend largely on the personnel of the commission.

Mr. BURTNESS. You would have to feel your way along, more or less?

Mr. EASTMAN. Yes.

Mr. BURTNESS. In any event, under this bill, you would not be prevented from assigning the duties to an individual commissioner who, in turn, could set up with the approval of the commission a board of employees to assist him in connection with those duties?

Mr. EASTMAN. No. Illustrating the kind of matters which might be handled by an individual commissioner, we have the question of whether or not rates shall be suspended. Sometimes there is a large number of those requests for suspension to be considered quickly and some of them are difficult and require a good deal of consideration. Others are not so difficult. They are now considered initially by a board of suspension made up of employees of the commission. It might well be that under certain circumstances those requests for suspension could be parceled out among individual commissioners to the extent that they did not involve matters of major importance. Using another illustration, we have questions come up with respect to accounting. Those now are referred to a division of three. Those might in many instances be decided by an individual commissioner.

Mr. BURTNESS. Your board of suspension, as I understand you, now consists of employees of the commission purely?

Mr. EASTMAN. We have a board of suspension which considers protests asking that tariffs which have been filed be suspended for investigation; and that board considers the protests and answers which are filed, sometimes hears those who protest, and makes its recommendations to division 2 of the commission. The decision whether or not the tariffs shall be suspended is made by division 2 of the commission.

Mr. BURTNESS. But as a practical proposition, the division now simply confirms, generally speaking, the recommendations made by the board of suspension?

Mr. EASTMAN. It may not confirm them. It does not always do so by any means. But the suspension board goes over all the protests and the answers and prepares a memorandum which division 2 has before it. That memorandum sets out the substance of the protests and the substance of the answers and then contains a recommendation as to what should be done. That memorandum is read and considered by the members of division 2, and they decide what shall be done.

Mr. BURTNESS. In your opinion, would most of the assignments made under this proposed legislation, if it becomes law, be made to

an individual commissioner or would they be made to a board consisting of employees? Which is the more important of the two methods proposed?

Mr. EASTMAN. That would depend entirely upon how the commission should decide to handle that matter. My own personal opinion is that the delegation to boards of employees would be the more important. But that might not be the view of a majority of the commission. They might decide to handle it the other way.

Mr. BURTNESS. That is all, Mr. Chairman.

Mr. HOCH. I take it that there are many contested cases that do not involve the taking of testimoney at public hearings but involve simply arguments. What I am getting at is that proviso which requires the consent of the litigants in contested cases that involves the taking of testimony at public hearings. There are a good many contested cases that involve simply arguments and not the taking of testimony, are there not?

Mr. EASTMAN. No; there are not.

Mr. HOCH. I was wondering whether there would be any such occasion, where the consent of the litigants would not be required under this provision of the bill.

Mr. EASTMAN. Where there is a contest, it is our practice to have a record made and the argument is on that record.

Mr. HOCH. Practically speaking, that would cover most, if not all, of the contested cases that would require consent of litigants?

Mr. EASTMAN. I can not at this moment think of an exception to that; there may be.

Mr. HOCH. You speak of taking testimony. Of course, I understand that you have a record made.

Mr. EASTMAN. You will understand that we have what we call our shortened procedure and under the shortened procedure there is no public hearing, but the parties file their evidence in the form of affidavits. There are opportunities for replies in the same way. This bill would permit the delegation of all such shortened procedure cases. But, on the other hand, under our practice the shortened procedure can not be used without the consent of the parties.

Mr. HOCH. One more question: I do not want to involve you in any lengthy discussion of it at all, but I was interested in your statement with reference to the judicial functions of the commission. Take reparations cases, for instance, to which you referred. In those cases where the order of the commission is not complied with by the carrier, does the complainant, when he goes to court, ask for an enforcement of the order of the commission, or does he simply take the case to the court and set up the order of the commission in support of his contention? Is it an appeal from the order of the commission? Mr. EASTMAN. Well, I should know that, but I can not offhand be certain as to my answer. I am sure Mr. Fulbright probably has taken some of those cases into court and can tell you about it.

Mr. HоCH. It bears on the question of whether it is in fact a judicial function, or whether it is simply a finding of fact by a legislative agency,

Mr. EASTMAN. My impression is that they go into court to enforce the order of the commission. But the court is not bound by what the commission may do, as a matter of law, although the Supreme

Court has so interpreted the law that the findings of fact by the commission have great and almost controlling weight. Have I stated that accurately, Mr. Fulbright?

Mr. FULBRIGHT. Substantially.

Mr. HOCH. Somewhat analogous to the present situation with reference to radio. I believe the court decided that decisions made by the Court of the District of Columbia were not judicial decisions subject to review in cases where the license of a radio operator had been taken away by the Radio Commission, and he had taken, as the law provides, his case to the Court of the District of Columbia, and an appeal was sought to be taken from the decision of the District Court to the United States Supreme Court. They held it was not essentially a judicial finding, that the Congress had provided simply that the court in the District of Columbia was an appeal body from the Radio Commission; in other words had used the personnel of the court to constitute a legislative agency, if I understand the decision. That would be analogous to this situation.

Mr. LEA. I am interested in the time element involved in these hearings. How long does it take to dispose of an investigation by the commission; let us say an investigation involving rates, for instance?

Mr. EASTMAN. The time varies a great deal. Many of these minor cases are decided within one year. On the other hand, a case which is sharply contrasted and requires a good many hearings quite often takes as long as two years, and very large proceedings have taken at times a good deal longer than that.

Mr. LEA. I have heard some criticism along those lines. Well, to be more specific, the charge is made that some railroads file petitions for rehearings to hold up proceedings in order that they may possibly enjoy a higher rate than they will get after the final order is made. For instance, if action is delayed two years, and some section is deeply interested in a particular freight rate on its products a whole season's shipments might be involved. Is there any way by which those delays can be materially reduced?

Mr. EASTMAN. The commission is endeavoring to reduce them so far as it can. The delay in the hearing of a case is often caused by both parties. It may be the railroads or it may be the shippers. I have seen a great many cases where lawyers representing the shippers asked for postponement of hearings. I think that occurs quite as often as a request for a delay by the railroads.

Now there is difficulty in restricting the evidence taken at hearings so that they will not be unduly prolonged. That depends upon the efficiency of the man who presides at those hearings, very largely. There is always a natural hesitation upon the part of examiners or even commissioners when they are hearing cases, to eliminate evidence, to refuse to allow it to be produced. Probably a freer use of that power to exclude evidence would shorten some of the hearings. Mr. LEA. I was not voicing a criticism myself.

Mr. EASTMAN. I understand.

Mr. LEA. I was asking for information. Of course, it is no doubt very important, if it can be done, to shorten the time taken in the disposal of investigations.

Mr. EASTMAN. I think it is a very important matter.