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Mr. MONTAGUE. Mr. Hoge said, at the foot of page 114—which, of course, is contradicted by section 5 (b) of the law, and by the Morgan decisions that I have read

The Commission says that it applies the preponderance rule, but I say to you that there is nothing in the act which requires it and no way in which the respondent can compel it. If

any Commissioner ever made an admission that he had ever departed from the preponderance rule, you could get him impeached and get the Commission's ruling set aside.

Mr. Hoge quotes from the statement of Judge Martin, which is contained in the American Bar Association Journal of December, 1945. It is just too bad that Mr. Hoge should have begun quoting only from page 625 of that issue, because if he had only quoted pages 614 to 624, and 629 and 643 and 644, he would have had quoted such a complete answer to everything that Mr. Hoge and Judge Martin have said about preponderance of evidence—and if I may add, with all due respect, a complete answer to everything which has been inquired by Congressman Reece, as to why a court review of the preponderance of the evidence was not put into the act—that it would not have been necessary for any one to go any farther. It is curious that Mr. Hoge should be quoting from 625, and should have omitted all these other pages, because all these other pages contain a statement as to administrative procedure which has been unanimously approved by the Administrative Law Committee of the American Bar Association, and in which it is stated what the American Bar Association, which has been discussing this question for ten years, wants to have as the proper rule for the review of cases, and they absolutely decide in favor of the substantial-evidence rule, and not the preponderance of evidence rule.

There is nothing radical about the American Bar Association. Every point which has been raised, and every question which Mr. Reece has asked me today, or ever before in these hearings, on the question of preponderance of evidence, has been threshed out in that Committee of the American Bar Association, and the final conclusion in the bill which they aproved and in the bill which was approved by the House of the Delegates of the Association in their December 1945 meeting, has absolutely nothing in it in respect of a review on preponderance of evidence, but they have provisions entirely endorsing the substantial-evidence rule.

And simply to save my voice, I am going to ask leave to put in, after I will close, some statements on the preponderance of evidence rule which have been coming in recently.

(The statements referred to are as follows:)

ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES-REPORT OF THE COMMITTEE

ON ADMINISTRATIVE PROCEDURE, APPOINTED BY THE ATTORNEY GENERAL, AT THE REQUEST OF THE PRESIDENT, TO INVESTIGATE THE NEED FOR PROCEDURAL REFORM

VARIOUS ADMINISTRATIVE TRIBUNALS AND To SUGGEST IMPROVEMENTS THEREIN

[January 22, 1941, S. Doc. No. 8, 77th Cong., 1st sess. ]

IN

APPENDIX TO STATEMENT OF ADDITIONAL VIEWS AND RECOMMENDATIONS OF MESSRS.

M'FARLAND, STASON, AND VANDERBILT-A CODE OF STANDARDS OF FAIR ADMINISTRATIVE PROCEDURE (217)

* (e) Scope of review.-As to the findings, conclusions, and decisions in any case, the reviewing court, regardless of the form of the review proceeding, shall

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consider and decide so far as necessary to its decision and where raised by the parties, all relevant questions of: (1) constitutional right, power, privilege, or immunity; (2) the statutory authority or jurisdiction of the agency; (3) the lawfulness and adequacy of procedure; (4) findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence; and (5) administrative action otherwise arbitrary or capricious: Provided, however, That upon such review due weight shall be accorded the experience, technical comptence, specialized knowledge, and legislative policy of the agency involved as well as the discretionary authority conferred upon it (246–247).

UNIFORM ADMINISTRATIVE PROCEDURE ACT; NATIONAL CONFERENCE OF COMMIS

SIONERS ON UNIFORM STATE Laws, August 17–21, 1943. REPORT OF SPECIAL COMMITTEE ON UNIFORM ADMINISTRATIVE PROCEDURE ACT AND TENTATIVE DRAFT OF UNIFORM ADMINISTRATIVE PROCEDURE ACT

SPECIAL COMMITTEE ON UNIFORM ADMINISTRATIVE PROCEDURE ACT

E. Blythe Stason, University of Michigan Law School, Ann Arbor, Mich., chair

man; Robert T. Caldwell, Second National Bank Building, Ashland, Ky.; Frank M. Clevenger, Courthouse, Wilmington, Ohio; Franklin Corrick, State Capitol Building, Topeka, Kans.; Ralph F. Fuchs, Washington University Law School, St. Louis, Mo.; John Carlisle Pryor, Tama Building. Burlington, Iowa; Fred B. Wood, 995 Market Street, San Francisco, Calif.; John H. Voorhees, BaileyGlidden Building, Sioux Falls, S. Dak.; chairman, Uniform Civil Procedure Acts Section (2).

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SEC. 23. Scope of review : The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, testimony thereon may be taken in the court. The court may affirm the decision of the agency, or may reverse or modify it if the substantial rights of the appellant have been prejudiced as a result of the administrative findings, inferences, conclusions or decisions being :

(1) contrary to constitutional rights or privileges; or

(2) in excess of the statutory authority or jurisdiction of the agency, or affected by other error of law; or

(3) made or promulgated upon unlawful procedure; or

(4) unsupported by substantial evidence in view of the entire record as submitted; or

(5) arbitrary or capricious. Upon such review due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it.

NOTE.-The above section is one of the most important in the act. The section has been adapted from the bill submitted by the minority of the Attorney General's Committee on Administrative Procedure. (See sec. 311 (c) of S. 674.) The Attorney General's Committee gave thorough and extensive consideration to the problems of judicial review, and its conclusions are expressed in chapter VI (pp. 75–95) of its final report. Although the majority of the Committee decided against any recommendation for “general legislation for all agencies and all determinations alike,” the minority felt that general definitive and clarifying legislation in the field was desirable. Their proposal -(S. 674) contains a carefully considered and well-formulated plan for that purpose.

The crux of any plan for judicial review of the decisions of administrative tribuanls lies in the scope of review to be allowed. During the past two or three decades a heated controversy has centered around this problem, with endless hours of discussion and volumes of written material. Almost every court that has had to deal concretely with the problem has vacillated in the course of time from one pole to the other. The full range of review extends from a complete trial de novo on the one hand to review limited to controverted questions of law on the other. The uniform act adopts the position of allowing full review of controverted questions of law, but limited review of questions of fact, with power to reverse only if there is no substantial evidence to support the decision of the agency. It may be stated with considerable assurance that this standard of review approximates the norm in state practice throughout the country. Necessarily, however, there will be found a considerable number of deviations from the norm.

In order to test the language of the section it would be desirable to study in detail the statutory provisions and the cases on judicial review in many different states. It has not been possible to do this in a thorough manner, but many cases and many statutes have been examined, and the numerous secondary sources have been thoroughly explored. On the basis of this survey it is reasonable to conclude that the provisions of the Uniform Act would fit satisfactorily in almost all situations and would serve materially to clarify and strengthen the present law.

In the Benjamin report the New York practice is carefully analyzed and described. (See part V, Judicial Review.) Commissioner Benjamin examines the cases under Sec. 1296 of the Civil Practice Act, under section 199 of the Tax Law, and under the workmen's compensation law. Although the statutory language governing review differs in each case, the author concludes on the basis of the New York decisions that the "substantial evidence” rule prevails in each instance so far as fact determinations are concerned. Moreover, he concludes, “The substantial evidence rule represents what is, as a matter of policy, the desirable scope of judicial review of quasi judicial determinations of fact” (19-21).

MODEL STATE ADMINISTRATIVE PROCEDURE ACT. PREPARED AND APPROVED BY THE

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, APPROVED SEPTEMBER 9, 1944; SPECIAL EDITION PREPARED FOR MEETING OF AMERICAN BAR ASSOCIATION SEPTEMBER 1944

(7) The court may affirm the decision of the agency or remand the case for further proceedngs; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or

(e) unsupported by competent, material, and substantial evidence in view of the entire record as submitted ; or

(f) arbitrary or capricious (7-8).

AMERICAN BAR ASSOCIATION: SPECIAL COMMITTEE ON ADMINISTRATIVE LAW.

LEGISLATIVE PROPOSAL ON FEDERAL ADMINISTRATIVE PROCEDURE, 1944 (f) Scope of review: With reference to any action or the application, threatened application, or terms of any rule or order and notwithstanding the form of the proceeding or whether brought by private parties for review or by public officers or others for enforcement, the reviewing court shall consider and decide, so far as necessary to its decision and where raised by the parties, all relevant questions of law arising upon the whole record or such parts thereof as may be cited by any of the parties. Upon such review, the court shall hold unlawful such act or set aside such application, rule, order, or any administrative finding or conclusion made, sanction or requirement imposed, or permission or benefit withheld to the extent that it finds them (1) arbitrary or capricious; (2) contrary to constitutional right, power, privilege, or immunity ; (3) in excess of statutory authority, jurisdiction, or limitations or short of statutory right, grant, privilege, or benefit; (4) made or issued without due observance of procedures required by law; (5) unsupported by competent, material, and substantial evidence, upon the whole record as reviewed by the court, in any case in which the action, rule, or order is required by statute to be taken, made, or issued after administrative hearing, or (6), unwarranted by the facts to the extent that the facts in any case are subject to trial de novo by the reviewing court. (21)

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Comment on subsection (f) of section 9: A restatement of the scope of review, as set forth in subsection (f), is obviously necessary lest the proposed statute be taken as limiting judicial review. "The objections to judicial review have been generally not to its availability but to its scope" (final report, Attorney General's Committee, p. 80). The subsection does not attempt to expand the scope of judicial review, but at the same time care must be taken not to reduce it directly or by implication. Nor is it possible to specify all instances in which judicial review may operate. Subsecton (f), therefore, seeks merely to restate the several categores of questions of law subject to judicial review.. Each category has been recognized (see final report, Attorney General's Committee, pp. 87 et seq.). The several categories, constantly repeated by courts in the course of judicial decisions or opinions, were first established by the Supreme Court as the minimum requisite under the Constitution (Interstate Commerce Commission v. Illinois Cent. R. CO., 215 U. S. 452, 470 (1910) ; Interstate Commerce Commission v. Union Pac. R. Co., 222 U. S. 511, 547 (1912)) and have also been carried into State practice in part at least as the result of the identical due process clauses of the Fourteenth Amendment, applicable to the States, and the fifth amendment, applicable to the Federal Government (New York & Queens Gas Co v. McCall, 245 U. S. 345, 348 (1917)).

A further words of explanation may, perhaps, be required as to the language of the fifth category (administrative action unlawful if unsupported by competent, material and substantial evidence, upon the whole record as reviewed by the court, where by statute an administrative hearing is required). First, the words "upon the whole record” are designed simply to assure that the hearing—if one is required by statute--is truly a hearing. If agencies may look only to part of the record of a statutory hearing, and ignore uncontroverted and uncontrovertible evidence, then obviously, the hearing is a mere sham, the parties are put to a needless expense in participating, and judicial review is nothing more than a form. The language does not, and is not intended to, deprive administrative agencies of authority to judge of the credibility of evidence or to appraise conflicting evidence. Secondly, the fifth category necessarily limits the substantial evidence rule to cases in which Congress has required an administrative hearing upon which the administratve record may be made. The sixth category expresses the correlative situation in which Congress has not provided by statute for an administrative hearing and consequently any relevant facts must be presented de novo to original courts of review (see Kessler v. Strecker, 307 U. S. 22, 35 (1939)). It should be noted that the sixth category, in accordance with the established rule, would permit trial de novo to establish the relevant facts as to the applicability of any rule and as to the propriety of adjudications where there is no statutory administrative hearing, but it does not attempt to state in what other instances evidence may be presented originally to courts of review since the latter subject is one which the courts themselves have not fully settled (see final report, Attorney General's Committee, p. 87; Baltimore & (). R. Co. v. United States, 298 U. S. 38, 368, 372 (1936); St. Joseph Stock Yards Co. v. United States, 298 U. S. 468, 486 (1936); Morgan v. United States, 304 U. S. 1, 14 (1938); United States v. Idaho, 298 U. S. 105, 109 (1926)) (39–40).

H. R. 1203 (SUMNERS, JANUARY 8, 1945), A BILL TO IMPROVE THE ADMINISTRATION

OF JUSTICE BY PRESCRIBING FAIR ADMINISTRATIVE PROCEDURE (e) SCOPE OF REVIEW : So far as necessary to decision and where presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) direct or compel agency action unlawfully withheld or unreasonably delayed and (B) hold unlawful and set aside agency action found (1) arbitrary, capricious, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without due observance of procedure required by law; (5) unsupported by competent, material, and substantial evidence upon the whole agency record as reviewed by the court in any case subject to the requirements of sections 7 and 8; or (6) unwarranted by the facts to the extent that the facts in any case are subject to trial de novo by the reviewing court. The relevant facts shall be tried and determined de novo by the original court of review in all cases in which adjudications are not required by statute to be made upon agency hearing (17–18).

H. R. 4941 (SUMNERS, DECEMBER 10, 1945), A BILL TO IMPROVE THE ADMINISTRATION

OF JUSTICE BY PRESCRIBING FAIR ADMINISTRATIVE PROCEDURE SCOPE OF REVIEW: So far as necessary to decision and where presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of any agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by the parties, and due account shall be taken of the rule of prejudicial error (18-19).

The Court of Appeals of the State of New York now evinces reluctance to review on the facts the judgments of lower courts and the findings and orders of administrative agencies, even when the New York statutes expressly authorize the court of appeals to do so.

People ex rel. New York & Queens Gas Company v. McCall (219 N. Y. 84, Oct. 3, 1916, affirmed 245 U. S. 345).

Matter of Elimination of Grade Crossings of New York Central Railroad Co. (255 N. Y. 320, Jan. 6, 1931).

Matter of P. S. I. Transp. Co. V. P. S. Com. (258 N. Y. 455, 459, 461, March 3, 1932).

Matter of Niagara Falls Power Co. v. Water Power and Control Commis. sion (267 N. Y. 265, 278, April 23, 1935).

People ex rel. Consol. Water Co. v. Maltbie (275 N. Y. 357, 366, July 13, 1937).

Matter of City of Syracuse v. Gibbs (283 N. Y. 275, 290, July 24, 1940).

Matter of Calder v. Graves (261 A. D. 90, Jan. 8, 1941; affirmed without opinion, 286 N. Y. 643). Aerated Products Co. v. Godfrey (290 N. Y. 92, 99, March 4, 1943). Harrington v. Harrington (290 N. Y. 126, March 11, 1943). Drivas v. Lekas (292 N. Y. 204, 208, March 10, 1944).

Henry Cohen, Reluctance of the N. Y. Court of Appeals to Review Facts (44 Columbia Law Rev., 352, May 1944).

Robert M. Benjamin, Commissioner under section 8 of Executive Law, Report to Gov. H. H. Lehman on Administrative Adjudication in the State

of New York, March 1942; 181–194, 328–368. Commissioner Benjamin in his report (p. 1) quotes Governor Lehman's January 1939 annual message to the legislature, as follows: "In launching extensive social and labor programs, we have resorted more and more to quasi-judicial determination by administrative agencies. At the last election the people rejected a proposal for the judicial review of the facts as well as of the law of virtually all decisions of administrative officers and agencies.

ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES. REPORT OF THE COMMITTEE

ON ADMINISTRATIVE PROCEDURE, APPOINTED BY THE ATTORNEY GENERAL, AT THE REQUEST OF THE PRESIDENT, TO INVESTIGATE THE NEED FOR PROCEDURAL REFORM IN VARIOUS ADMINISTRATIVE TRIBUNALS AND TO SUGGEST IMPROVEMENTS THEREIN. JANUARY 22, 1941, SENATE DOCUMENT No. 8, SEVENTY-SEVENTH CONGRESS, FIRST SESSION

ADDITIONAL VIEWS AND RECOMMENDATIONS OF MESSRS. M'FARLAND, STASON, AND

VANDERBILT (203)

* Footnote, page 210 : “The Communications Act of 1934 provides with respect to permits and licenses 'that the review by the court shall be limited to questions

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