The whole theory of sections 7 and 8 of the bill is that the special procedure which is provided there shall result in a proposed report, or recommended report, being made by the officers who heard it even if there were a full division, I suppose, of the Commission-three of the Commissioners-before the entire Commission acts. I think that is a fair summary of the final, provisions of sections 7 and 8 of the act.

Now, that is not our present practice, and it is not required by section 17 at the present time. Section 17 does require proposed reports in certain types of cases; it does not require any proposed report when a division of the Commission, consisting of three of whom two are quorum-hears a matter, or when the entire Commission hears the case. So, to that extent, again sections 7 and 8 go beyond the provisions of section 17 of the act at the present time.

a

Mr. JENNINGS. Just reading from section 8, it seems to me that that plainly confounds you in the statement you have just now made, because subsection (a) of section 8 provides that where some subordinate officer of the Commission takes the testimony, that person may make the initial decision.

Mr. AITCHISON. Right.

Mr. JENNINGS. And if the board of Commission do not undertake to review it and lets that initial finding by this subordinate official stand for a certain period of time, then it is just like the report of a master in chancery which is unexcepted to within the time allowed by law; it automatically becomes final. And if the interested party is not satisfied with it, then there may be a hearing, upon proper exception, by the whole board.

It seems to me you are sticking to the bark in some of your criticisms of this language.

Mr. AITCHISON. Perhaps I am, but it is my duty

Mr. JENNINGS. I am glad to hear your views about it.

Go ahead.

Mr. AITCHISON. May I point out this: You, I think, have correctly stated the tenor of section 8, but subordinate officers are defined, and subordinate officers by section 7, paragraph (a), line 9 on page 10 would include the Chairman of the Commission and the two senior Commissioners, or three juniors, or anybody else. It would include a division of the Commission

Mr. WALTER. Oh, no.

Mr. AITCHISON. "Subordinate hearing officers designated from members of the body." Now, if that is sticking to the bark, I have just got to stick to the bark. And I do not like to be called subordinate when I happen to have been Chairman of the Commission and preside with certain of my colleagues at the taking of testimony.

Mr. JENNINGS. If you are a member of the Interstate Commerce Commission

Mr. AITCHISON. Why, I have been for 28 years.

Mr. JENNINGS. I beg your pardon; I just had in mind you were counsel for the Commission here.

Mr. AITCHISON. No; I am a member of the Commission.

Mr. JENNINGS. All right; I apologize for not having you properly in mind. I was not here yesterday.

.

Now I want to ask the Congressman if he will be kind enough to turn to section 10 on page 16, paragraph (c), line 15 to 19:

*** Any agency action shall be final for the purposes of this section notwithstanding that no petition for review, rehearing, reconsideration, reopening, or declaratory order has been presented to or determined by the agency.

I want to contrast that, if I may, with section 17 of the act, paragraph 9. And, mind you, this amendment is one which Congress enacted September 18, 1940; it is nothing very old. Section 17 says:

When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwiise disposed of by the Commission or an appellate division, a suit to enforce, enjoin, suspend, or set aside such a decision, order, or requirement, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.

Now, if I am sticking to the bark in this as being contradictory, I cannot be helpful to this committee

Mr. GWYNNE. Is it your position that nothing in this law shall in any way affect the conduct of your agency?

Mr. AITCHISON. Not at all.

Mr. GWYNNE. I think we have a right to change the law, do we not?

Mr. AITCHISON. Certainly.

Mr. GWYNNE. That is what we are doing.

Mr. AITCHISON. I am not at all sure but what you are suggesting here is better. But it was suggested here yesterday and urged with considerable emphasis from the bench, that after all you are just taking our practice and our law, and if there is nothing inconsistent with it, why, well and good.

Mr. GWYNNE. If this bill does not change the existence procedure of these bureaus, I think it had better be thrown in the wastebasket. That is the purpose of it, as I understood.

Mr. AITCHISON. I am not saying our procedure is the last word, but I hope with the flexible powers which Congress has given us we can still do some experimentation and pioneering in the matter of correct procedure.

Mr. GWYNNE. Do not you think we might as well stick to some of the old formulas and say that the prosecutor and judge cannot be the same person? You do not care to experiment with that, do you? Mr. AITCHISON. No; I do not.

Mr. JENNINGS. Frankly, I have not had your Commission, or the Commission of which you are a member, so much in mind in my consideration of this proposed measure; but I think we have some other governmental agencies that have offended egregiously in this matter. I have not had in mind and have never heard any criticism, as I recall, of the Interstate Commerce Commission being arbitrary or lawless, and disposed to trample on people's rights; but there are some agencies under the present set-up that have been on the rampage.

Mr. AITCHISON. I thank Your Honor for that observation. It is a little consolation, considering that only last week we were reversed

from the record by one of the State boards, and we had sustained its ruling.

Now, my opinion is-and I think, having been called to the bar nearly 50 years ago that I can state it for whatever it is worth, and it seems good to me if it does not to anybody else that the provisions of sections 7 and 8 of this bill and section 17 of the Interstate Commerce Act cannot possibly stand together. It may be, as Congressman Gwynne suggests, that section 8 is better; but certainly there is going to be confusion; it is going to require court decisions. We do not know, except by implication, what of section 17 is repealed, and I direct the attention of this committee to the fact that in this bill it is provided that future legislation in future Congresses shall not be construed to affect this legislation unless it expressly says so. I ask the same privilege with respect to the Interstate Commerce Act. If it is to be amended, if it is wrong, set your legislative reference people to work, your legislative counsel, and let us talk the thing over with them and let us come to a proper repealing clause, and know exactly what the law is we are required to enforce, and not to have to take it to the Supreme Court.

Mr. JENNINGS. Of course, you are fully familiar with the principle that repeals by implication are not favored.

Mr. AITCHISON. I understand. And I am also thoroughly familiar with the principle that where a subject matter is treated as a whole by a legislative body subsequent to earlier, more specific legislation, and the two cannot stand together, that the later expression of the legislative will controls.

Now, I hate to throw any aspersions or "asparagus" at the draftsmanship of this bill. It comes from eminent authority, and I know I am myself subject to criticism as being meticulous

The CHAIRMAN. That is all right; just go after them.

Mr. AITCHISON. All right: with the chairman's permission, I will do so. And I am going to start with the first paragraph of the act, other than the one which says that this act may be cited as the "Administrative Procedure Act." Section 2 defines "agency" and says: "Agency" means each authority of the Government of the United States other than Congress, the courts, or the governments of the possessions, Territories, or the District of Columbia.

Then follows certain functions which are excepted, which I think I need not go into. I have already, probably tediously, summarized the provisions of section 17 of the act. I should have called attention also to the Motor Carrier Act which provides for State boards being given jurisdiction in a "noble experiment" of the decentralization of Federal power, which is working and has worked out very well. But now I want to ask when the Congress says that a division of the Commission shall have all of the powers, duties, and responsibilities of the Commission when it acts, is it an "authority"? And, for that matter, when an individual Commissioner acts under a delegation of power under section 17, he acts under authority of the Congress and he is given the same authority as the Commission, and the word "authority" is used in the bill, is he an agency or not?

Mr. WALTER. Well, you are certainly splitting hairs pretty thin

Mr. AITCHISON. Well, what is the answer; what is an agency supposed to be?

Mr. WALTER. The answer is "Yes"; no question about it.

Mr. JENNINGS. Just like a court meets in banc and hears argument and the case is assigned to one member of the court and he goes off and later brings in an opinion: The other members have not read that record, but they concur in his opinion and it becomes the opinion of the court. Your procedure is analogous to that.

Mr. AITCHISON. All right. If "agency" means the entire Interstate Commerce Commission, then I submit, as you go through this act and read it, you will find where "agency" as used throughout the act has a different meaning.

Mr. JENNINGS. Is it your position that the Congress ought not to pass an over-all statute?

Mr. AITCHISON. Not at all.

Mr. JENNINGS. Undertaking to hold these various numerous governmental agencies within the limitations of the law of the land?

Mr. AITCHISON. Not at all, Congressman. I am not talking about anybody except the Commission of which I am a member.

Mr. WALTER. May I direct your attention to the definition of "agency" made by the Attorney General's Committee on page 4 of H. R. 1206, paragraph (a):

"Agency" means each office, board, commission, independent establishment, authority, corporation, department, bureau, division, or other subdivision or unit of the executive branch of the Federal Government, and means the highest or ultimate authority therein.

Mr. AITCHISON. That certainly is more precise than section 2 as we have it in H. R. 1203.

Now, I want to ask this and split hairs again: I find the courts are excluded from section 2. Is the President? He makes rules; he makes adjudications of the type which are referred to in this act. Now, that is none of my business; I am just a citizen and just throw that question in for whatever it is worth. I do not know what the intent is, of course.

Mr. JENNINGS. Well, if it operates to forbid the President from operating as a legislative agency, I would say it is good law.

Mr. AITCHISON. I cannot debate that, because that is out entirely of my sphere.. But I want to mention one more obscurity which I would be glad to have the committee help straighten out, for I may have a complete misunderstanding of what this act is.

Take the definition of "rules" and "rule making." That is page 2, paragraph 2 (c). It seems to me obvious that the word "rule" would not include the rate as made, unless it is brought in afterward.

The CHAIRMAN. What addition would you make in the language to which you refer in order to make it clear?"

Mr. AITCHISON. Well, they have tried to do that in the Senate revision by inserting this language

Mr. WALTER. Where does that appear?

Mr. AITCHISON. It is at the top of page 3 of the Senate revision, where they say "rule making' means agency process for the formulation, amendment, or repeal of a rule." That is what is in the House bill, and then they add in the Senate bill "and includes rate making, or wage or price fixing.”

Mr. WALTER. That is at the top of page 3, column 2.

Mr. BRYSON. That is S. 7, is it not?

Mr. AITCHISON. S. 7. Now I shall mention just some practical difficulties about that for your consideration, for whatever they may be worth-little or nothing, possibly.

Mr. WALTER. If that language "rate making," then, were included, you would have nothing to object to?

Mr. AITCHISON. I think I will ask that the language be further clarified in respect to some matters I will bring to Your Honor's attention. in just a moment, because it seems to me obvious that rate making is anomalously included under the term "rule making" when the rate is not a rule. It is just a matter of English. But passing all that, now, we make rates for the future; we make rates for the past; we fix rates as reasonable in the past. We are performing there the function of a common-law jury.

Of course, our orders are only prima facie evidence and the matter has to go before a jury if there is more than $20 in dispute. I refer, of course, to reparation cases. But it is clear and it is well worked out by Justice Roberts in the Arizona Grocery case-Arizona Grocery Company v. Atchison, Topeka & Santa Fe-that the Commission acts in the one case, when it reviews these past rates, in a quasi judicial capacity and, for the future, it is performing a legislation act.

Now, I have no objection to your calling that a rule, Congressman Walter. Pardon me for addressing you personally, but you raised the question yesterday with respect to whether or not, after all, we did not have controversies between A and B concerning a rate and whether C could not later come along with another case.

Assume we find in the case of A versus B Railway Company that the rate is unreasonable; as was held by the Supreme Court of the United States in A. J. Phillips & Co. v. Grand Trunk Western Railway, anybody can take advantage of that finding, whether a party to the proceeding or not, and there we are acting with respect to a past rate. I would like to ask if you cannot clarify that for us.

The word "order" as we find it a little later seems to go back to the original idea of the Attorney General's Committee and the American Bar Association, that "rule" is a legislative matter of general applicability, while "adjudication" refers to particular matters. Yet when the revised section 2 (c) puts rate making in with rule making, even such matters as our shortened procedure cases which are tried virtually on affidavits where there is no hearing at all; the hearing is dispensed with-all those things, that sort of procedure against one carrier with respect to one commodity from one point to another point-all of those things become rule making and are governed by principles which apply when we are laying down a legislative rule for the future.

It does not seem to me that is good administration. The term lacks precision to those of us who are going to be compelled to administer this law. Does it mean only rates for the future, these cases I have mentioned, as was held in Baer Bros. v. Denver & Rio Grande Railway (233 U. S. 479)-that rates for the future and for the past may legally be brought together before the Commission and disposed of upon the same petition? That rule is settled. But when we do that with respect to the past and substitute ourselves for a common law jury, is it an adjudication, or rule making; or is it rate making? I