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Mr. AITCHISON. With respect to judicial review?

The CHAIRMAN. No, sir; with respect to the applicability of the general provisions in this proposed legislation?

Mr. AITCHISON. I am not wholly certain whether they have gotten this out or not, but there is a rather curious thing. I notice, I believe, that in one of the sections of H. R. 1203 certain acts are entirely exempted; that is, wartime acts and acts which do not go beyond a given date in 1947.

The CHAIRMAN. My question was do you think that the making of those emergency determinations dealing with emergency situations would be either prohibited or the agency would be handicapped in doing its work if it feels it is necessary to do it quickly and based on your judgment as to what you do upon your general knowledge, as you have heretofore indicated?

Mr. AITCHISON. It certainly would in these great rate cases I have mentioned.

Mr. WALTER. Well, those decisions that are made without a hearing are in the nature of preliminary decisions, are they not?

Mr. AITCHISON. No; they are final. When you tell a carrier to put on an embargo at a given point, and not move anything in there, that stops movements instantly; or if you have a flood and they tell the carrier to disregard the shippers' routing instructions. They could complain about such an order. But we have collected more than a quarter of a million dollars in fines for violations of them. Three cases went to the Supreme Court-one, the P. Koenig Coal case, the other the Avent case, and the Michigan Portland Cement case. Mr. WALTER. Do you have the citations?

Mr. AITCHISON. Not at the moment. Justice Holmes, I believe, said "But the order of the Commission must be reasonable." But the offense there was a discrimination because they did not obey the order of the Commission with respect to one person and did obey it with respect to the others.

The CHAIRMAN. What I am trying to get at myself is, Are the requirements of this proposed legislation such as to interfere with the quick exercise of your discretion?

Mr. AITCHISON. In Ex-parte 148, for instance, we took testimony in a case which involved applications for a 10 percent increase in rates, fares, and charges. We took the entire amount of testimony in 4% days, and the following Monday the Commission was out in St. Louis to hear arguments, and heard the arguments and the arguments took longer than it did to take the testimony for the reason I have already indicated. That could not be done under this.

The CHAIRMAN. We have the picture of that case. Now, what provision in this proposed legislation would interfere with that character of procedure?

Mr. AITCHISON. The provision, for instance, that the proposed report should be issued by the agency before it decided. We would have had to come back here to Washington and, instead of deciding the case, would have had to decide what kind of proposed report we would make.

Another thing: You have authorized us, in order to avoid these discriminations between State and interstate, to avail ourselves of the

that to be cut out so that these officers will be not permitted to avail themselves of that, in order to avoid conflict between State and interstate?

The CHAIRMAN. I do not think this committee would knowingly recommend legislation which would prevent you from availing yourselves of any assistance. That is what we want to try to avoid.

Mr. WALTER. A moment ago, Mr. Aitchison, you testified in a proceeding recently you were not satisfied with the evidence that had been adduced and you personally conducted an inquiry. Is that because you had an idea of what the decision should be and wanted to get the evidence in order to substantiate your conclusions?

Mr. AITCHISON. Not at all. But it was a question of what was a fair rate and that question was very largely dependent upon comparison of rates.

We found a case where there was an opportunity to amplify circumstances and conditions, but the matter was not in the record. If we were the Supreme Court of the United States we would take judicial notice of the fact. But under this bill we are required to take official notice of facts but we are forbidden to ask anybody what those facts are.

The CHAIRMAN. I would expect you have notified everybody.

Mr. AITCHISON. If an examiner should find it necessary, in connection with his proposed report, to find out some things, why should he notify that individual in advance?

There is a long article published in a law journal, written by Mr. Davis, in which he strongly takes us to task because that sort of thing has not been done.

The CHAIRMAN. Who is Mr. Davis?

Mr. AITCHISON. That is Professor Davis, now with the University of Texas. He was an investigator for the Attorney General's committee and for the Board of Investigation and Review.

Mr. GYWNNE. Would you agree that the prosecuting functions should be with the court?

Mr. AITCHISON. In general, when it comes to the making of a decision. Of course we cannot simply set up a bureau and let it go without any administrative supervision at all.

Mr. GWYNNE. You are objecting principally to the use of the word "investigator".

Could not some amendment be put in that section which would make it very clear that that is limited only to the prosecuting part of it? Mr. AITCHISON. Or, say, investigation with a view to prosecution. We investigate matters for Congress. The House will pass a resolution asking us to investigate.

Mr. GWYNNE. Could not an amendment be offered which would overcome that objection?

Mr. AITCHISON. I think possibly it could be done. But I am taking the bill as I find it.

Commissioner Splawn has spoken of the very long consideration which has evolved this procedure.

I do not feel like taking the time of the committee to go through each of the items in the first part of my statement and evaluate them.

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 partic-. ipants, 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 Atlantic coast, 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 ex-. aminers; 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

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