or adjudication. They likewise are a growth, from the original code framed by Thomas M. Cooley and a former distinguished member of the House, affectionately called "Horizontal Bill" Morrison, and their colleagues.

Mr. WALTERS. You say your Commission has been overhauled once every 5 years. These amendments that have been adopted were largely procedural, were they not?

Mr. AITCHISON. Procedural?

Mr. WALTERS. Yes.

Mr. AITCHISON. Both procedural and substantive.

Mr. WALTERS. If Congress found it necessary to overhaul your agency as frequently as it has been overhauled, do you think a general law might obviate the necessity of our passing legislation such as this which is before us?

Mr. AITCHISON. There could not be a general law that would have obviated the necessity for amendments which are pending in the Senate bill which is now on the calendar.

But the question is as to the adequacy of the present rules. The Commission's rules are intended to be helpful, and the Commission's practitioners so regard them. They contain many "shoulds" and as few "musts" as possible. They are just the sort of a manual of procedure that would have helped me when as a young lawyer I went from Iowa out to Oregon and started practice, as I did, in an untried field.

We wrote them having always in mind that many of our practitioners are not professionally trained in the law. Their spirit is shown by rules 1, 2, and 3, reading as follows:

Rule 1. Scope of rules.-These general rules govern procedure before the Interstate Commerce Commission in proceedings under the Interstate Commerce Act and related acts, unless otherwise directed by the Commission in any proceeding. Rule 2. Liberal construction.-These rules shall be liberally construed to secure just, speedy and inexpensive determination of the issues presented.

Rule 3. Information; special instructions.—Information as to procedure under these rules, and instructions supplementing these rules in special instances, will be furnished upon application to the Secretary of the Commission, Washington, D. C.

I do not believe that is the spirit the American Bar Association follows. I regret to say.

Now, to answer the question of Chairman Sumners, for light on how the directives of the agencies were established. I answer with respect to my own agency. The method employed in formulating the Commission's general rules of practice is, in general, that which has been followed by the Commission in the formulation of many of the regulations which the law requires shall be made.

Of course, if the statutes provides a particular method, or requires a hearing, or any other procedural step, that direction is followed. When a hearing is not in terms required, it is always accorded if the nature and importance of the matter makes it desirable. There are cases, such as those growing out of conditions of emergency, when the Commission has to act without hearings; informal conferences are held when possible. Sometimes the Commission must act on the basis of its own knowledge, and act quickly. The criticism which has come to us if of "formalism" in the conduct of these investigations which lead

years, does it not? In other words, the courts have been functioning under that program of prosecution being separate from decision. Do I understand you cannot function under that?

Mr. AITCHISON. What I am calling attention to is the fact that the word "investigate" is a word which in the Interstate Commerce Act is used probably 30 times as comprehending the whole scope of the duties of the Commission under the act, and I do not think the draftsman means to have in mind the same meaning for it; he means probably the prosecuting functions. And if you go into the prosecuting functions, I can have no objection. But with respect to "investigate", when the law casts on every one of us and on every man we send out as our delegate the duty of making an investigation under the act, I just do not see how that will work there.

Mr. WALTER. May I call your attention to the language which I understood was drawn as a result of the statement you made at the Attorney General's Committee hearing on page 34 of H. R. 1206 where it is provided:

Those heads, members, officers, employees, or representatives of any agency engaged in presiding at hearings or formulating findings and decisions in the course of formal proceedings shall not consult or advise with agency, counsel, investigators, representatives, or employees except upon notice to all affected parties and in open hearing or otherwise as provided herein.

Now, what can hamper the functions of your agency if that language is written into law?

Mr. AITCHISON. In the first place, I think there is a little mispunctuation there that ought to be straightened out. I suppose what is intended is "agency counsel."

Mr. WALTER. Yes.

Mr. AITCHISON. But passing that and taking out the comma, does that mean I cannot call in our chief counsel and ask him what his general view of the law is?

Mr. WALTER. No, sir; it does not mean that. You have a perfect right to do that.

Mr. AITCHISON. He is the agency counsel.

Mr. WALTER. You have a perfect right to do it after you tell the other side you are going to sit down and make inquiries.

Mr. AITCHISON. And "employees": When the parties have cited a mass of tariffs, that I have to be omniscient enough to read through them all, to go into the file myself and find them, or can I ask his advice to dig up rates for me?

Mr. WALTER. You can do that under this language.

Mr. AITCHISON. By asking everybody to come in?

Mr. WALTER. No; by telling them you are going to have a hearing on a certain day for the purpose of inquiring into whatever it is. And I doubt very much if everybody who is notified or anybody who is notified would appear; still they would have a right.

The CHAIRMAN. Mr. Aitchison, your notion is that in the performance of your duties you are an agent of the Congress and in ascertaining facts the nature of the job is such that you cannot proceed too much as a court; you have to be less formal than a court.

Mr. AITCHISON. I think we must be less formal than a court. The CHAIRMAN. And you have to have freedom of action and liberty of judgment as to where you get the facts when you need

Mr. AITCHISON. That has been the settled principle since the act to regulate commerce was enacted in 1887.

The CHAIRMAN. What this committee is trying to do, and it is a hard job-it does not want to handicap any agency, of course, but there is a good deal of complaint that in these inquisitorial agencies— and yours is largely of that sort; you do that which amounts to a rendition of judgment resulting in shifts of ownership, or infringement of interest and right-that those people who ascertain the facts ought to make the reports and ought to make reports that are matters of record and those reports ought not to be made at the suggestion, directly or indirectly, to any degree of those who finally have to sit in judgment to determine what ought to be done under the report.

That is the complaint that comes to us, that in these agencies too frequently those who are to act as judge influence the type of report that goes into the record.

We are right at the point now, as I understand from those gentlemen who are more familiar than I am with the matters in controversy, that gives us the trouble and where you can render us the most assistance.

Mr. WALTER. Mr. Aitchison, as I understand it, in each of these inquiries the decision affects only the parties to that particular proceeding?

Mr. AITCHISON. No; they affect the whole public.

Mr. WALTER. But if the same question or a similar question arises in another case, is not there another hearing, or are you bound by precedent?

Mr. AITCHISON. No; they are not.

Mr. WALTER. Are you bound by precedent, having decided the issue in A, B, and C, that that is the law with respect to D, E, and F? Mr. AITCHISON. When we recently had Ex parte 148, an application of all the railroads and the motor carriers of the country for a 10 percent increase in rates, we had certain applicants who were participants, but it affected everybody in the country whether he was there or not, and we represented the public. The Supreme Court said so; they told us that is our duty in the Sacramento case with respect to the long-and-short-haul clause.

Coming to this question about the man who hears and the writing of the report, this is my observation on that: In the first place, I do not believe that before the Commission they have exactly the situation which has given trouble with respect to some of the other agencies. I am speaking from hearsay, of course; but to a most considerable extent what comes before us is statistical and documentary testimony. Oftentimes it is reduced to writing, submitted to the opposing parties in advance of the hearing; frequently it goes in without a single line being read out loud, even, and the question being asked "You prepared this statement?" "Yes." "Is there objection to this being copied in the record?" "None at all, Your Honor." "The reporter will copy it in."

Now, what is sacred about the man who sits in the chair making the decision in a case of that sort when the record is made up that way?

Again I want to ask a very practical question. You take one of

those cases where they have 500 counsel appearing and where they have 1,000 witnesses, and where 1,000 other witnesses take advantage of the rule of procedure we announced and have submitted verified statements in lieu of personal appearance, cross-examination being waived, when it is necessary in short order, because perhaps $2,000,000 a day is involved, for us to cover the entire country, and when we have several simultaneous hearings going on, by everybody's consent,. as the only practical thing to do-and not alone with their consent, but approval-a hearing going on on the Pacific coast, on the Atlanticcoast, and in the South, and four of them in some central place, and then we adjourn to other places, covering the entire country in a short time: Who is the officer who hears those cases; what officer is going to write the report?

The CHAIRMAN. Now, what does happen with that report, and so forth? Does that simply come in and then the Commission has to take it up?

Mr. AITCHISON. In a case of that sort, in the last one we had, Commissioners Mahaffie, Splawn, and myself were the committee

Mr. WALTER. Before you go into that, may I answer the question you asked?

Mr. AITCHISON. Yes.

Mr. WALTER. The report would be written up by the four, five, or six examiners, each dealing with the particular phase of inquiry he is acquainted with.

Mr. AITCHISON. The probabilities are the only acquaintance he got was a one-sided one by hearing certain witnesses who say something in the testimony, and not hearing the other side of it. The other side will probably be going on before another examiner, and necessarily so. We do not clean these things up

Mr. WALTER. The answer to your question is very simple, as I see it. Certainly there would be a conference between all of the examiners; if one man heard one side of the question and another man the other, obviously the two men who heard both sides would sit down together and write their recommendations.

Mr. AITCHISON. I am afraid that is forbidden.

Mr. WALTER. Just point out where that is forbidden.

Mr. AITCHISON. Because they are forbidden to confer with each other.

Mr. WALTER. Oh, no.

Mr. AITCHISON. They

shall not consult or advise with agency counsel, investigators, representatives, or employees except upon notice to all affected parties.

Mr. WALTER. That is right.

Mr. AITCHISON. When they come to drafting the proposed report, to which parties are going to be entitled to file exceptions, or when it is an emergency matter of this sort as the Commission itself has to accept the responsibility of making the initial decision, like that big rate case I talked about, do they have to call people in to sit down and have 500 people before them, helping them to write the report? The CHAIRMAN. What you do in that case, Mr. Aitchison, you take the reports which have been made to you, as you said, each of the investigators perhaps covering some phase of the matter, and they

Mr. AITCHISON. That came to the committee constituted by Commissioner Splawn, Mahaffie, and myself, and together we prepared the draft of report which was submitted to the Commission. But, before that, the entire Commission had heard argument on that.

The CHAIRMAN. Would the entire Commission hear argument on it before they had the consolidated facts before them?

Mr. AITCHISON. Before they had the report?

The CHAIRMAN. Yes.

Mr. AITCHISON. That gives me a good opportunity to say what I think is the thing that has given a great deal of concern to our practitioners, and so on.

In cases of that kind that we handle, it is oftentimes quite a good thing in the public interest to let people tell their story and get it off their chest and let it be understood, whether or not it would comply with the strict rules of evidence; and we do get lots of that kind of thing in.

The CHAIRMAN. In that sort of situation, you take the argument and the facts presented in the course of argument and consider them together with the reports made to you by the various examiners, and base your conclusions upon all of those?

Mr. AITCHISON. Yes. What the record is is really an armory of facts, and when they come to the presentation before the division, or before the Commission as a whole, the parties draw out of that armory the facts they want to use, and they do that either in their briefs or oral presentations.

The CHAIRMAN. When that matter then reaches the court, what constitutes the facts that are considered by that court? I am afraid I have a rather involved question, because the situation seems to me rather involved.

Mr. AITCHISON. Under the Urgent Deficiencies Act, you mean? The CHAIRMAN. I do not know

Mr. AITCHISON. That is the one which governs the majority of our

cases.

The CHAIRMAN. I think I will stand on that question. Under any act, when you get to the court, what would the court consider with reference to the finding of facts?

Mr. AITCHISON. The court in the case of the Urgent Deficiencies Act does not go into the facts unless the party moving for a review puts the entire record before the court. And then the court examines for the purpose of seeing whether the well known standards have been met; otherwise it does not go into the facts.

Now, with respect to other classes of cases where there is no record, there obviously we have quite a different situation and there seems to be a line of authority that in a case of that sort the court can take testimony de novo, to inquire whether the order of the Commission was a reasonable one.

The CHAIRMAN. Is that in a case where there is no record?

Mr. AITCHISON. Yes; and there are many, of course, that have to be. For instance, all of these emergency orders that are made from day to day, they are made out of the air from our general knowledge of the transportation situation. They have to be.

The CHAIRMAN. On that particular point, would you have any diffi