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Commission that the bills might be amended so as to exclude the Interstate Commerce Commission. At that time he expressed on behalf of the Commission the thought that it should be excluded, but he also voiced our hope that if we were not excluded some possible amendment might be made under which we could work.

After further study and particularly the study of your revised and improved bill, H. R. 1203, we have reached the conclusion that we were correct in asking Commissioner Aitchison to voice our views in the Seventy-seventh Congress to request the exclusion of the Interstate Commerce Commission from whatever bills you may report, and to that end we have addressed to you a letter prepared by our legislative committee to which I have referred. A copy of this letter is already before the members of the committee, and at this time we respectfully request that the letter be incorporated in the record.

I'he CHAIRMAN. It will be incorporated in the record.

(The letter referred to follows:) Hon. HATTON W. SUMNERS,

JUNE 22, 1945. Chairman, Committee on the Judiciary,

House of Representatives, Washington, D. C. MY DEAR CHAIRMAN SUMNERS : Responsive to your request for comment on H. R. 1203, introduced by yourself, may I advise that this bill has been considered by the Legislative Committee of the Interstate Commerce Commission. Upon request of that Committee, the Commission added to its membership for the consideration of bills pertaining to administrative procedure our two senior Commissioners, Clyde B. Aitchison and Claude R. Porter. These two Commissioners with Commissioner Mahaffie also constitute the Commission's Committee on Rules and Reports. On behalf of the Legislative Committee the following comments are offered:

On the general question of the need of something in the nature of a code of procedure to govern the various agencies of the Federal Government which exercise administrative functions, we express no opinion. We assume that you seek from us an expression with respect to the probable effect of a measure of this kind on the work of this Commission in its administration of the Interstate Commerce Act and related statutes.

We respectfully request of your committee that the Interstate Commerce Commission be excepted from any bill such as this which your committee migit see fit to report favorably. There is a precedent for such an exemption in the complete exclusion of the Commission from the Logan-Walter bill some years ago. Likewise, it will be recalled that the earlier administrative procedure proposals sponsored by the American Bar Association and its Administrative Law Committee excepted proceedings before this Commission. We reached this conclusion after careful consideration of H. R. 1203. The possible changes referred to yesterday during the course of the statement by Mr Carl McFarland, as set forth in a committee print of S. 7 of May 1945, if adopted, would still make difficult the work of this Commission.

The Interstate Commerce Commission is the oldest of the administrative agencies of the Government. Throughout the 58 years of its existence it has given continuing study to its procedure, as a result of which it has devised and put into effect a number of procedural methods which are well understood and which have, we believe, the support of those who have dealings with this Commission.

The Commission is not merely a kind of court for the settlement of controversies between individuals or those to which the Government is a party. It is an administrative tribunal with the broader responsibility of carrying out the national transportation policy declared by Congress in the Transportation Act of 1940. It has numerous other duties under divers acts of Congress. In functioning it is called on to perform numerous and varied duties demanding widely different forms of administrative procedure, each suited to the nature of the particular circumstances. Some of these procedures have been used for many years, others are comparatively new, and some are yet in the experimental stage, but all have proved reasonably satisfactory, and their operation is understood by those who must use them. That this is so may be judged by the fact that the Commission's General Rules of Practice adopted July 31, 1942, have been in effect for nearly 3 years since we promulgated them, having had the benefit of much consideration by our bar, and that no weakness has developed that required amendments. If the lawfulness of these procedural methods must now be judged by a code not designed simply to supplement the jurisdictional requirements of the Interstate Commerce Act, but to cover as a blanket all agencies of the Government having administrative powers, many of whic differ substantially in nature and purpose from those committed to this Commission, inevitably there will be a long period of uncertainty and confusion while the effect and meaning of numerous statutory provisions susceptible of varying interpretation are being judicially ascertained. If there is anything in the bill which would better our practice, we would be swift to adopt it. But no one has made any such suggestion to us.

Throughout its history the Commission has striven to obtain the broadest and most accurate possible factual basis for its official acts, generally through the quasi-judicial device of a hearing and argument on issues of fact presented, even when by statute a hearing is not mandatory. Our experience has not indicated the need for a more elaborate body of rules to insure fairness. We see a danger in a code which would center attention on matters of form and detract from the important objective of reaching a sound conclusion on facts.

Our study of H. R. 1203 leads us to the conclusion that its enactment in either its original or revised form would have an adverse effect on the performance of our functions. In fact, it apparently would make impossible the performance of some of our important duties. Under the Interstate Commerce Act the Commission now has flexible powers “to conduct its proceedings under any provision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” Section 17 (3). We regard this flexibility in procedure as of highest value in the public interest. A code of rigid requirements would forbid it.

A recital of the obscurities, ambiguities, and impractical requirements of this bill would make too long a letter. One feature, the scope of review in enforcement proceedings, seemingly would put the Commission back where it was in the impotent stage preceding the Hepburn Act of 1906. The review provisions run counter to the ideas which are being worked out by the judicial conference. We mention these as merely illustrative. We, therefore, earnestly request that the Interstate Commerce Commission be excluded from this bill. Respectfully submitted.

[S] WALTER M. W. SPLAWN, Chairman,

CLYDE B. AITCHISON,
CLAUDE R. PORTER,
CH \RLES D. MAHAFFIE,
John L. ROGERS,

Legislative Committee. Mr. SPLAWN. In that letter we asked to be excluded from whatever bill you may report.

Commissioner Aitchison, in presenting our views, will point out the long period of time you have given to the consideration of statutes providing for procedures for the Interstate Commerce Commission. For more than half a century the Congress has been continuously engaged, from time to time, 'in prescribing those procedures. We believe those statutes to be satisfactory when tested under the headings discussed here last Thursday: Public Information, Operation, and Court Review. We believe you have already attained, insofar as the Interstate Commerce Commission is concerned, the objectives announced last Thursday.

I do not believe you want to pass mere repetitive legislation, a sort of fifth wheel procedure. If that were the only result it would not be so bad, but as Commissioner Aitchison and Mr. Ames of the Practitioners' Association will point out, we believe the consequences are much more serious. Mr. Rosenbaum, representing a group of I know, and other members of the legislative committee know substantially what Commissioner Aitchison will say to you and may I advise that we are in agreement with the statement he is going to make.

Thank you, Mr. Chairman.
The CHAIRMAN. Thank you, Dr. Splawn.

Commissioner Aitchison, we will be glad to hear you.
STATEMENT OF CLYDE B. AITCHISON, COMMISSIONER, INTERSTATE

COMMERCE COMMISSION

Mr. AITCHISON. Mr. Chairman and members of the committee, I should say that I have been more than identified by Dr. Splawn.

The CHAIRMAN. You are very well identified.

Mr. AITCHISON. As this statement has not been submitted to the Bureau of the Budget, the usual reservation is made that I do not. know if it is consistent with the policies of the President.

Virtually seven bills are pending, as we understand H. R. 1203 has been tentatively revised. Their numbers are in the record.

Time has not been available, consistent with other duties, for me to study all of these as I should, nor, as we understood the chairman, does the committee wish now to go into the details of the bills. These details are of great importance as they affect the administration of the many laws as to which we function as an arm of Congress. Many of these details were discussed in my testimony before Senator Hatch's . subcommittee of the Senate Committee on the Judiciary, Seventy-seventh Congress, first session, on S. 674, 675, and. 918, pages 412–474, if the committee wishes to refer to that statement, made on behalf of the Commission of which I am a member.

The CHAIRMAN. What is the date of the statement, Mr. Aitchison? Mr. AITCHISON. I believe it was April 29, 1941.

The CHAIRMAN. What was the purpose of the bills to which you: refer?

Mr. AITCHISON. One, No. 675, was the so-called majority bill of the Attorney General's Committee on Administrative Procedure.

The Chairman. Yes.

Mr. AITCHISON. No. 674 bore the lower number, was the minority bill of that committee; and No. 918 was a mysterious bill. We never were able to find out who fathered it, although there was a suspicion; it was a matter of common repute.

The letter which Commissioner Splawn has mentioned specifically is directed to the chairman's bill, with the amendments which last Thursday we understood were suggested by the office of the Attorney General. Naturally I speak only for and of the Interstate Commerce Commission and its work, and I do not know how these bills would affect any other agency.

What often is lost sight of in discussing this subject as a generality is the great variety of matters which have been entrusted to the Commission. The Interstate Commerce Act itself is in four parts. The original act, passed in 1887, has been amended more than 40 times. Each of the four parts comprises many diverse functions. In addi

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tion to that act, the Interstate Commerce Commission has duties under many supplementary acts.

Let me call to mind some of these functions, all specific requirements of the Congress. The Elkins Act; joint Board action in connection with the Civil Aeronautics Board; audit of sums due certain carriers under the Transportation Act of 1920; coordinate and cooperative functions with the bankruptcy courts in reorganization or debt adjustment proceedings as to railroads; enforcement and implementations of certain provisions of the Clayton Act; fixation of boundaries of the standard time zones; approval of loans of certain kinds to be made by the Reconstruction Finance Corporation; formulation of regulations for the safe transportation of explosives and dangerous articles by common carriers; giving consent to reforms in parcel post zones, rates, etc., suggested by the Postmaster General; fixation of compensation to be paid railways, and urban and interurban electric railways, for carriage of the mails; construction and operation standards for railway vehicles to be observed by railroads; enforcement of the Safety Appliance, Power Brake, Ash Pan, Locomotive Inspection Acts and the block signal resolution; Hours of Service Act; and (under the regulations promulgated by the President), the Medals of Honor Act; and classifications of employees and subordinate officials under the Railway Labor Act and other acts.

All of these mentioned are completely outside the Interstate Commerce Act, and they each involve the making of rules or of adjudications, as I now understand those terms are meant, or both.

The CHAIRMAN. Do you operate under rules in each of those respon. sibilities to which you have referred, a set of rules that preceded the activity?

Mr. AITCHISON. I think so. I can answer that in more detail when I come to answer your Honor's question with respect to the matters which I expect to deal with.

The CHAIRMAN. Thank you.

Mr. AITCHISON. Within the Interstate Commerce Act there is an equal variety of functions, relating to many different types of transportation agencies and to their patrons; matters concerning the records of carriers; uniform accounting practices; depreciation charges; uniform bills of lading and livestock contracts; contents of annual and periodical reports of financial and operating statistics; issuance of certificates of public convenience and necessity or permits for construction, extension or operation by rail, highway, or water, or common or contract carriers, or brokers, or as a freight forwarder; proceedings for abandonment of line or operation; control of numerous types of financial matters-consolidations, mergers, leases, acquisitions or control and transfer of operating rights; interlocking directorates, approvals of stock and bond issues; approval of the insurance offered by motor common carriers; forms of traffic, and relief from the rules governing them; credit to shippers; the long-and-short-haul clause; valuation of carrier property; safety regulations for motor vehicles and their operators; emergency service orders as to railroads, motor carriers, and water lines; car service rules; these are all subjects which are within the act itself; they involve rule making or adjudications, or both, and they are additional to the general powers of the Commission with respect to rates. And by no manner of means is this a complete list, or With respect to a great many of these diverse functions, Congress kas specificaly laid down a form of procedure which it considered to be adequate and adapted to the type of function. As these functions are different, the procedures which control them are quite naturally and necessarily different, and they must be different if administration is to be efficient and fair. To the extent that it is possible to subject these all to a general procedural rule, we believe this has been done by the Commission's general rules of practice, and we do not know how we can go further. We think the rules are adequate and satisfactory.

The CHAIRMAN. May I ask if there is any difference in these rules as they apply to the various subheads of your responsibility?

Mr. AITCHISON. Oh, yes.
The CHAIRMAN. They affect the right of appeal to courts?

Mr. AITCHISON. The right of appeal to the courts is provided by the Urgent Deficiencies Act of 1913, sometimes referred to as the District Court Jurisdiction Act, and there have been many decisions by the Supreme Court with respect to various types of orders, growing out of that act.

The CHAIRMAN. My question is has there been any variation in the right of appeal on the part of the aggrieved person who is affected by these different activities which you mention?

Mr. AITCHISON. Yes. I think I can answer that best by saying that in a number of cases the Supreme Court has said the nature of the subject matter is such that the order is not really reviewable at all, as you find in the fixation of compensation to be paid for the transportation of the mail, as my friend Mr. Miller no doubt remembers, in the case of United States v. Griffin (303 U. S. 206). That is perfectly sensible; there should not be any review, because if it goes to the Court of Claims the matter is tried there and it is not upon review of the Commission's order.

Mr. WALTER. Suppose the matter is arbitrarily or capriciously handled, should there not be a review allowed first?

The CHAIRMAN. What Mr. Walter is driving at is this: Should not the matter be inquired into before damage is sustained about which the matter is taken to the Court of Claims?

Mr. AITCHISON. If the matter is arbitrarily handled or capriciously handled, there is a deprivation of constitutional rights, and of course the complainant would not recover in the Court of Claims.

Mr. WALTER. Suppose a damage has been suffered before?
Mr. AITCuison. The damage would be good only if there is a review.
Mr. WALTER. If the appeal was a supersedeas.

Mr. AITCHISON. But the determination of the Commission, in the case I have mentioned, is retroactive; it goes back to the time of the filing of the petition.

Mr. WALTER. We understand that, but still damage has ben sustained and the only redress then comes through the prosecution of a suit in the Court of Claims.

Mr. AITCHISON. May I say, Mr. Walter, as far as I am concerned I do not believe that it makes one bit of difference whether review comes then or following the presentation by the carrier against United States for compensation for carriage of the mail.

Mr. WALTER. If it does not make any difference then why are you objecting to it?

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