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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. 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 folJows. 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 to the conclusion.
The CHAIRMAN. When you do act in emergencies, you base your action upon general knowledge, and do you file a statement of the facts on which you base your determination?
Mr. AITCHISON. In fact, the act permits that in a case of that sort.
But to recur to the manner in which most recent revisions of the rules were accomplished, as typical.
The general specification laid down in the act is significant. The Commission may adoptsuch general rules or orders as may be requisite for the order and regulation of proceedings before it, or before any division, individual commissioner, or board, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States.
That is section 17 (3).
I call particular attention to this languagewhich shall conform, as nearly as may be, to those in use in the courts of the United States.
Mr. CHELF. That is no guide, is it? It does not guide you, does it?
Mr. AITCHISON. I think it does. With respect to the matter of evidence, we are authorized to make rules with respect to evidence. I think evidence is comprehended within the scope of procedure, and I think there is authority for it.
Mr. CHELF. You say you follow their rules of evidence in the courts as far as you can. Who determines what “how far” is, or when it shall be available, or how far these rules follow the procedure?
Mr. AITCHISON. That is a question that has to be determined by somebody.
Mr. McFarland is in error when he says there are no Federal rules of evidence. There are statutes of the United States which prescribe how matters that shall be established.
Mr. WALTER. I do not think he said that. I think he said there are no equity rules.
Mr. AITCHISON. There may be no equity rules but there is, as I recall-I believe the new civil rules of procedure provide for the rules formerly in equity, or the rules of the State where the hearing is being held, whichever is the more liberal, shall be applied.
Mr. WALTER. That is the substance of the rule?
Mr. AITCHISON. That is the substance of the rule. That, Mr. Congressman, we have woven into our rules of practice.
Mr. CHELF. That rule does not give you much of a guide. Who will determine that? You and I might disagree on the question of liberality.
Mr. AITCHISON. Somebody has to decide that. When the Commission sets a procedure it gives the parties a focus on which they can argue the question.
We undertook a revision of our rules after the passage of the new Code of Civil Procedure. Following the Transportation Act of 1940 there was a somewhat general desire that the rules of procedure last published as an entirety in 1935, be consolidated and revised, and we undertook the task. The proceeding is carried on our docket as ex parte No. 55.
Recently there had been three searching outside examinations of the Commission's rules as they stood and had been administered: (1)
Administrative Procedure, (2) by the long hearings of the subcommittee of the Committee on the Judiciary of the Senate, headed by Senator Hatch, and (3) by the results of a wholesale canvass of members of our bar.
I will call some witnesses in reference to that matter. The Association of Interstate Commerce Commission Practitioners had a very competent standing committee on procedure headed by Mr. McFarland, who testified here last Thursday, and who as a member of the Attorney General's committee had become familiar with the Commission's practice.
A special committee consisting of Mr. La Roe, Mr. Turney, and Mr. Miller, who also testified on Thursday, was appointed by the association, and gave generously of time and skill to aid the Commission's Committee on Rules and our staff examiners, who, by the way, H. R. 1203 would have forbade us to utilize for this purpose, in drafting a proposed revision, because they performed under me.
Mr. GWYNNE. Are you not stretching that a little !
Mr. AITCHISON. I do not think I am; if I am stretching it, let us take it out.
Mr. WALTER. Leave it in the record.
I understand that Mr. McFarland's report that it was informally agreed by his committee should function upon the request and in aid of the special committtee so far as the new rules were concerned and to that end collected views as to the proposed rules of practice and transmitted them to the chairman of the special committee, on which Mr. Miller was sitting.
In passing, I note from this report of Mr. McFarland's committee thatthe imminence of war as it developed in the fall of 1941 and culminated early in December effectively suspended all legislative and most other activity on the subject of administrative procedure. While some investigations in the States proceeded, most associations of practitioners properly felt impelled to turn their attention to wartime legislation and administration. In common with the general movement, the committee on procedure of the Association of Interstate Commerce Commission Practitioners deemed it impracticable to do more than answer inquiries and perform such incidental functions as might be referred to it.
The proposed revision was given widest publicity, and comments were invited.
I do not wish to tire the committee, but I ask indulgence to quote from two general comments made responsive to the Commission's request : One statement was, in part:
The present rules of practice of the Interstate Commerce Commission have worked satisfactorily over the years, have operated fairly as to all parties before the Commission, and are familiar to and understood by the large body of persons dealing with the Commission. For these reasons it is not believed that any substantial change or revision in these rules is necessary, except as additional provisions may be required by reason of the enlarged functions of the Commission. However, if a complete revision is to be undertaken, the task should be approached in the light of the satisfaction given by and workability and practicability of the present rules.
That statement was made on behalf of the American Association of Railroads and the American Short Line Railroad Association, and among the signers was Mr. Miller, who testified before the committee on last Thursday.
I believe the comment filed by a member of the Attorney General's Committee on administrative procedure, Prof. Ralph F. Fuchs, is relevant:
In general I am impressed with the well-knit character of the rules, which are sensibly organized. They are also well expressed and easy to understand, at least for one who has familiarized himself with the functions of the Coinmission.
But the Commission did not consider this sufficient. The proposed rules and comments were set down for oral argument on the remaining narrow points of difference, and were argued for a full day, before Commissioners Porter, Mahaffie, Splawn, and myself. Then the entire Commission considered them and adopted them July 31, 1942, to become effective 45 days later. All this was in a proceeding as to which the law did not require any notice at all.
What was the result?
The rules have been in operation for nearly 3 years, and no one has moved for any change.
So much for the statutory and commission-made rules of procedure.
The CHAIRMAN. As a matter of fact, Mr. Aitchison, does this proposed legislation greatly change your functions in any way?
Mr. Aitchison. Not our functions, but it does unduly change our customary practice in some respects, some things that we think are working well.
The CHAIRMAX. Your rules and regulations have developed under legislation enacted by Congress and as the result of your broad experience, have they not?
Mr. AITCHISON. We think so.
The CHAIRMAN. It has not been entirely without some legislative direction?
Mr. Artchison. We set these rules down for hearing before the Commission and the Committee on Rules and Reports, and as Commissioner Splawn explained to you, there is a full day's argument on the question of objections, and that gives us an opportunity to know just what the situation is.
What has been the result? The rules have been in effect for 3 years and there has been no proposal for any change in them.
Mr. WALTER. What rules would be nullified through the enactment of any one or all these bills?
Mr. Aitchison. All the rules which deal with the manner of getting out a proposed report, and I think might have the effect of repealing by implication section 17 of the Interstate Commerce Act.
The CHAIRMAN. May I make an inquiry of Dr. Splawn? We have to close this hearing in a few minutes because the House will be in session.
Dr. Splawn, do you have some witnesses from outside of the District whom you want to present so they can go home?
Mr. SPLAWN. Mr. Ames, who will follow Commissioner Aitchison, resides in Washington, but Mr. Rosenbaum, who is from outside of the District and who represents the nonlawyer practitioners, may want to leave; I do not know about that.
He has a statement which he would like to put in the record, which he will make to the committee.
The CHAIRMAN. If he has a statement which he would like to put Mr. RosĖNBAUM. I do not have any written statement. I just wanted to call attention to certain matters that we consider an oversight on the part of the authors of these bills. I am not a lawyer, Mr. Chairman.
The CHAIRMAN. I do not think we could properly interrupt Mr. Aitchison's statement now, but if you could submit to me a brief written statement of these matters that
think you want to mention, the oversights that you have indicated, it would be very helpful.
Mr. ROSENBAUM. I will be glad to stay here a day or two if necessary, Mr. Chairman.
The CHAIRMAN. That is up to you.
The CHAIRMAN. You can arrange that with Dr. Splawn. We can meet tomorrow morning.
Dr. Splawn, you can determine that and arrange it in any way you like. We have to go to the House now.
(Thereupon the committee adjourned, to meet tomorrow, Tuesday, June 26, 1945, at 10 a. m.)