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tion of unreasonably harsh and severe remedies applies in the district court, it should most certainly apply in the Federal Trade Commission cases, or give us a trial de novo in the district court, which I think is a splendid alternative. I don't think we need both of those, but I think that would be a very wholesome thing. I don't think there would be many cases, Mr. O'Hara, because most of them are wrong. The Commission is generally right; the Commission is right in an overwhelming percentage of the cases. Most of the cases should not even be tried. If the attorneys were familiar with the law they wouldn't try many of these cases, because their clients are wrong, the practice is bad from the beginning, they shouldn't be in it. But there are cases that are border line, there are cases that are different, there are cases where the trade-mark is worth millions, and that party is entitled to a full, dispassionate, unbiased trial before a court, not where his adversary is the judge and the jury, ruling on the admissibility of the evidence in his case and the inference to be drawn. Bear in mind, all I am saying is not against any Commissioner or anybody in the Commission. I have a lot of friends over there, and I like them all, and they are a fine crowd, doing a great job. But I am addressing myself to this statutory law.
Mr. ROGERS. Suppose these cases were taken before a special master?
Mr. PERRY. If you will have a special master who is responsible to the district court, or the circuit court, and not on the pay roll of the Commission, and who can make a report, make findings, I think there is a great deal to be said for that, a great deal. I certainly would like it.
Mr. O'HARA. The damage is done when that testimony is in.
Mr. PERRY. The master would hear and be the judge of the admissibility of the testimony and make the rulings, and he would make the findings and the inference, and they would be subject to review.
Mr. O'HARA. How many appeals to the circuit court of appeals have there been per year over the last 5 years.
Mr. PERRY. Quite a few. I think you might better ask that of Mr. Kelly, or somebody in the Commission, but there are not many. As I say, it is patently bad practice, as a rule, on the port of the company.
Mr. RABIN. The objection that you raise is one that goes to all quasi-judicial administrative agencies, is that not so? I don't raise the point that we should refuse to change it here because it applies to the others, but that is true, isn't it? We are now formulating a new branch of the law, so to speak, with the advent of the administrative agencies. Isn't that the situation?
Mr. PERRY. Yes, it is, Mr. Rabin, except that I think if we are going to have justice instead of expedition and ease, we are going to have selectivity in administration and application of our laws.
Take the word "Vicuna." I have a good many friends who are college graduates and professional people, doctors and engineers and chemists, and I have asked a good many of them in the last few weeks, “What is Vicuna?" Unfortunately they don't fit in the class of careless, ignorant, illiterate, or foreign-born because they don't know what it is, but apparently the careless, the ignorant, the illiterate, the foreign-born would be misled into thinking Vicuna was Alpacuna. For the benefit of anybody who desn't know, it is the hair of a small animal, very rare, found in the righ mountains of Peru, and has been in production commercially only for a few years. I don't know how many of the careless, the ignorant, the illiterate, or the foreign-born would be misled, because the coats cost about $900.
Mr. O'HARA. I wonder just when you determine a person is ignorant? I suppose it is simple to determine when a person is foreignborn.
Mr. PERRY. No question about it.
Mr. O'Hara. I wonder how many of us would qualify in the other categories.
Mr. PERRY. Under the rulings I haven't qualified yet, because I heven't been misled by any of these possibilities.
Mr. Rabin. You say the Commission cannot detach themselves when sitting as judges; they are anxious to win their case. Do you believe that to be the general situation ?
Mr. PERRY. Now, look; I am just one fellow-
Mr. PERRY. Ask any attorney who practices before the Commission, when he gets a complaint does he think he has got the same shake he has got in the district court, or does he think he has got two strikes on him. Quite frankly, how many cases does the Commission lose !
Mr. RABIN. Well, you say most cases are justified.
Mr. PERRY. Most of them are, but the difficulty comes where it can control the testimony. It is a litigant. As Mr. Mock pointed out, when it secures its witnesses, it doesn't do it as a judicial organization; it secures them as a litigant, as you or I, or any other attorney would, þut when it comes to putting them on the stand, at that moment it becomes judicial. I don't think you separate those functions. I don't think a man, by putting on a robe, steps from being a litigant to being a dispassionate, unbiased, fair judge. I think the system is wrong.
Mr. RABIN. If you carry that to the logical conclusion, you would not permit this agency or any other agency to try a case.
Mr. O'HARA. There may be a very serious question there as to whether they could get justice.
Mr. PERRY. I think it is proper, if there be sufficient safeguards. I think the circumstances of our times require some such administration, but the safeguards must be very great. I am addressing myself in support of the Reece bill. I think that is the solution at the moment.
Mr. RABIN. Wouldn't the true solution lie in the direction of surrounding that procedure with proper safeguards?
Mr. PERRY. Yes, sir. But unless that is done, then I would like to have the opportunity that Mr. O'Hara may be willing to suggest, of a trial de novo in the district court.
Mr. RABIN. Directing your attention to the bill itself. You referred to the fact that under the present decisions the word "modify" has been practically stricken out of the law. That was testified to by the law-school professor who addressed us yesterday. Now, in connection with this proposed bill let us assume that the court does find a preponderance of evidence to support the Commission's finding—a finding that some relief should be given. Do you believe, as the bill is now written, the courts will again strike out the word "modify” from this bill, or is it clear enough that they have the right to modify?
Mr. PERRY. I wouldn't have the doubt expressed by the dean, although I must say he is a far more learned man than I am, and his judgment is entitled to far more weight, but I wouldn't entertain. the doubt that he entertains that if now, after the decisions of the Supreme Court, you went back and strengthened the language, that the court would again say the word “modify” is not intended to mean modify.
Mr. RABIN. You think the language is strong enough as it is now?
Mr. PERRY. Particularly so if in the report you cite the reason for the change, that it was to take care of the decisions of the court in those cases.
Mr. RÁBIN. I don't know what this committee will recommend, of course, but you beileve it is strong enough?
Mr. PERRY. I believe it is adequate, Mr. Chairman, provided the committee report states why the change in language was put in the act.
Thank you very much, gentlemen.
STATEMENT OF DR. ROBERT L. SWAIN, EDITOR, DRUG TRADE
NEWS, NEW YORK, N. Y. Dr. Swain. Members of the committee, my name is Robert L. Swain, my address is 340 West Forty-second Street, New York. For 20 years, however, from 1920 to 1940, I was a member of the staff of the Maryland State Department of Health, where I was in charge of the administration and enforcement of the State Food, Drug, and Cosmetic Act, and all the other laws in that State bearing in any manner upon the production and distribution of drugs and medicines. I mention that because in some degree the duties which came under my jurisdiction were somewhat similar to those with which the Commission has to deal, and it may be that the experience I had in that work may be of some some value to this committee in determining its attitude with respect to the Reece bill.
I am going to speak, if you will permit me, very briefly—I think I can finish in 10 or 15 minutes of the principles which I think are of general application to the issues presented here, and I am awfully glad that Mr. Reece made the observation, which of course is perfectly clear to everyone, that we are not dealing here with whether or not the Commission is a defendant, but we are dealing with provisions of the law which may or may not have been intended to have the result which they have been given, and to express the necessity, as Mr. Murphy said yesterday, of deciding whether a policy which has been developed is to be continued and the responsibility of whether the policy is to be continued or not rests with Congress.
Now, if there is one thing that I learned through my several years of law enforcement, it is that in order to render fair-minded judgment, the prosecution should be limited to the institution of the case, the collection of evidence, leaving to the jury the evaluation of the evidence and the court to see that justice is done.
I have come to the deep-seated conviction that the motives which govern the prosecutor on the one hand and the judge on the other are so basic in their differences that they can never be safely entrusted
" own case.
to one single individual. My experience has taught me the line between prosecution and persecution wears terribly thin when the prosecuting official functions as complainant, prosecutor, judge, and jury.
The psychological motivation of each of these contrasting activities is so pronounced and so unyielding that it is virtually impossible for a completely impartial verdict when these functions are merged to be reached. The complainant insists upon the validity of the evidence, the prosecutor zealously seeks a conviction, and these two militant attitudes are always present when the same individual seeks to weigh the evidence and sit in judgment in the case.
Let me again assert that my 20 years of active law enforcement and administrative work convinces me that, as a matter of sound governmental procedure, the complainant and prosecutor serve one function and the jury and the judge another, and that these functions are so sharply dissimilar and divergent that common sense demands they be entrusted to separate and distinct hands.
Now, as the committee well know, and as Mr. Perry well referred to, it is a time-honored maxim that “No man should be a judge in his
This seems to me to exclude a man from sitting in judgment upon a case which he himself has instituted, and for which he has collected the evidence, because, in a very real sense, he becomes a party in interest. It is his case. He is concerned with maintaining the position which he has taken and he is determined that the outcome of the case shall be consistent with the zeal, the energy, and the planning with which the prosecution has been carried on.
Mr. O'HARA. Will you permit me to interrupt there?
Mr. O'HARA. In most States, I know in my own State, the trier of the facts, be it judge or the jury, are subject to disqualification as to their qualifications, if they are biased or prejudiced, in both civil and criminal cases.
Dr. Swain. Yes; and very frequently a judge, of his volition, will ask to be excused from participating in a case which he may have had some relation to other than that of judge.
This is not a criticism of the attitude manifested; rather, it is simply a recognition that human nature is human nature, and it cannot be changed in any fundamental sense by legislation or any other official process.
My relatively log experience as a law administrative official also convinces me that enforcement officials are likely to find their whole official attitudes influenced by the prosecution complex. By this I mean that, once a case is instituted, the enforcement official instinctively takes a position looking to the punishment of the wrongdoer. Every fact in evidence and every phase of the facts are construed and evaluated in terms of how much they will contribute to a conviction.
The prosecution complex not only sharply restricts the enforcement official to the prosecution side of the case, but induces him to give undue emphasis to the various elements which make up the case. In other words, the prosecution, unless constantly striving to avoid it, becomes prosecution-minded. He becomes the victim of
mental attitudes which completely alienate any ability to see innocence or mitigating circumstances favorable to the other side.
As a matter of fact, not infrequently while I was with the State Health Department of Maryland, I found it desirable to accompany my own men on their field inspections, because I had one or two experiences which made me know that in their zeal to present a case as it might appeal to me, or as it might appeal to my superiors, let me say, whether unconsciously or unintentionally, perhaps, but material evidence was suppressed and I would be placed in the unfortunate position of having the case tried in court and having this information come to my attention for the first time on cross-examination of a witness. Of course, that is embarrassing, and it also creates the impression that the enforcement agency is not on the level and, in order to avoid that, I frequently went with my own men, just to be sure that got every fact that should get, and that in their zeal they did not suppress or withhold information material to the case, irrespective of which side of the case it might help.
Now, it seems to me that in listening to the testimony here yesterday, and from my somewhat sketchy familiarity with the procedure of the Federal Trade Commission, that we are face to face with this proposition. Everyone knows, certainly every member of the bar knows, the function of a grand jury in criminal justice.
The grand jury sits in a body of 24 men. They hear witnesses; they bring witnesses before them. They are in position to determine the credibility of this particular witness as against the other, and after they obtain a sufficient amount of evidence, which we know must be very substantial, they bring in an indictment.
Now, would anyone contend that an indictment by a grand jury should be tantamount to a conviction, in spite of the fact that the evidence is very substantial, because no grand jury would submit a man to the hazard of prosecution, in which tremendous issues are involved, unless the evidence was of a most substantial character. And yet our sense of justice would rebel against making an indictment by a grand jury tantamount to conviction, irrespective of the amount of evidence. And yet we do, in a sense, permit that here, because if there is, as the committee has had urged on it a number of times, if there is substantial evidence appeal to the circuit court of appeals is virtually nonexistent, and in a very practical manner, evidence which is far less substantial, perhaps, is accepted as tantamount to conviction.
I want to stress that analogy to the committee, because it seems to me it is exactly in point and, as I said before, your sense of justice, and mine, and that of the country as a whole, would rebel against making a grand-jury indictment tantamount to a conviction.
I am not going to take the time of the committee to again stress the compainant, prosecutor, judge, and jury operations of the Federal Trade Commission, but I do want to make one observation, and that is that on the Supreme Court itself some opposition to this proposition has developed. In a case some time back, involving the Federal Power Commission, the question before the Court apparently was how much authority it had to revise or modify a finding of the Commission. The Commission held that they had no authority at all, and Mr. Justice Jackson made this forthright observation (reading]:
If we are to hold a rate is reasonable, just because the Commission has said it is reasonable, review becomes a costly, time-consuming pageant of no practical value to anyone.