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Mr. SPRINGER. How would you suggest that that be clarified so as not to cause you any confusion?

Mr. AITCHISON. I think the original intent was better, to let the "rules" speak with respect to those matters of general applicability which necessarily have to be expressed in more or less general terms as a substitute for the specific will of Congress. I do not think it will work out in the long run to attempt to assimilate the proceedings of the kind I have just mentioned, but it is the same process as the one of prescribing the form of carriers' accounts to be kept uniformly, as the statute provides. There are many questions which are more or less directly connected with rates, but not with the price itself. This is not restricted to "price.”

Take the terms of bills of lading which we prescribe under authority of law “to prescribe a uniform bill of lading”; or the making of a classification of freight, which is a most intricate and voluminous job; and then take a case where we find preference and prejudice and do not fix any rate at all, but simply say the rate from point A to point B should not exceed the rate from point C to point B, and leave it to the carriers—and are compelled to leave it to the carriers according to some counsel-to adjust the one or the other; we do not fix the price at all, do not fix the rate at all; we simply fix the relation. Or take the interpretation of conflicting or obscure tariffs to determine what ihe rate is or was—and that is one of our most difficult questions—; or the division of through rates between the participants.

You might say, maybe, that I got off wrong a minute ago when I said those are primarily matters of adjudication, but I run my head up against the New England Divisions case which went up to the Supreme Court, where Justice Brandeis in a most masterly opinion concerning the division of through rates as between the carriers, held it is not a matter of private concern to them alone; it is one of very grave public concern. In that case it involved the whole question of the solvency of the New England railroads, and the Supreme Court sustained the decision on very broad grounds with merely typical testimony, because of the character of the issue and the public interest which was involved. That is more analogous, I would say, to rule making, yet it laid down a precise formula applicable to an individual rate—every individual rate.

The CHAIRMAN. What sort of formula, if you can tell us briefly, was laid down with reference to the division of rates?

Mr. AITCHISON. They simply gave the New England lines a greater share than they were getting.

The CHAIRMAN. I asked what formula did they lay down.

Mr. Aitchison. The matter was covered by division sheets between the carriers themselves.

The CHAIRMAN. Maybe a railroad man would know what that means, but it is not clear to me.

Mr. AITCHISON. You might say "contracts”; it was covered by contracts between the railroads. But we said “You have to modify your existing contracts by giving the New England lines 15 percent more than they are getting.

The CHAIRMAN. By what formula did you arrive at that conclusion?

Mr. AITCHISON. That was done by a study, as the law provides, of the revenue needs of the carriers.

The CHAIRMAN. I am trying to get at the formula, though.

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Mr. AITCHISON. The standards for the prescription of divisions are paid down in the statute itself and, among them, is the amount of money which is needed by the various carriers involved, and their importance to the public.

Mr. WALTER. Why could not that case have been decided under the provisions of this proposed law?

Mr. AITCHISON. It could, but I do not know whether it could be decided as a “rule” or “adjudication" case.

Mr. WALTER. What difference does it make?

Mr. AITCHISON. It makes considerable difference; because we were told on the opening day that normally "rules” are things that do not require notice, except as required by law.

The CHAIRMAN. Who told you that?

Mr. AITCHISON. Well, I may have misunderstood counsel, but it seems to me that is what counsel said.

Obviously there are some rules which cannot be made except in that way.

Mr. JENNINGS. Certain conclusions are reached in a case, which you affirm, and they are upheld by the Supreme Court. Of course, the Commission has been operating a long time. It has covered a broad field and a multitude of steps. It has adopted certain rules, practices, and methods of procedure that have become part of the law of the land. Do you really think that this measure will strike down all those accomplishments made over the years?

Mr. AITCHISON. Why, of course not.

Mr. JENNINGS. And that you will be wandering around on an uncharted sea and be unable to reach your objective?

Mr. AITCHISON. Oh, of course not. I have completely failed if I have given any such impression. But I am going to suggest to your Honors, if it is not lese majesty

The CHAIRMAN. No, sir; it is not.

Mr. AITCHISON (continuing). That a bill which has been amended as many times as this has been by the Senate committee after informal discussion with some of the agencies, would probably be better if there were discussion with all the agencies and some further amendment.

The CHAIRMAN. I will tell you what I believe would be helpful, Mr. Aitchison. If you could take this Senate amendment, or one of the others that you have in mind, and could give to the committee the benefit of suggestions as to how that language might be amended in order to give you as much liberty as can be had in the discharge of your responsibilities without hampering you, I believe it would be very helpful to the committee. The committee appreciates that you and

your agency want to be helpful-and I know the committee does in dealing with this general question. I believe that that perhaps would be as helpful a thing as you could possibly do in this situation.

Mr. AITCHISON. That is a large order, and I shall present it to my colleagues to do what we can do toward complying with the chairman's suggestion.

The CHAIRMAN. I believe that that would be a very helpful thing. There is a gentleman from outside the Government, Mr. W. E. Rosenbaum, to whom I believe the committee would like to give an opportunity to speak.

The CHAIRMAN. I do not mean to interrupt you.

Mr. AITCHISON. I had intended, but I do not now think it is necessary, in the light of a good deal of the discussion, to spend some time on a discussion of the chairman's question as to who or what machinery shall be assigned to hear matters in dispute.

The CHAIRMAN. That is one of the things we are having discussion about. Let me put it this way: Do you consider that if the agency personnel that sits in judgment in the first instance here, who hear discussed the facts on which the record is made, are appointed by some agency other than yours, it would interfere with the scope of your activities! My question is involved, but I hope I have been able to indicate to you what we have in mind.

Mr. AITCHISON. It is a question of whether, if the examiners, for instance, who hear our cases were appointed by some other agency our work would be impeded?

The CHAIRMAN. That is right.

Mr. AITCHISON. Well, I find it a little difficult to answer that categorically. If we are going to have responsibility for results, and if at the end of our term the President is going to throw us out because he does not like the way we have functioned during our terms, we ought to have a very great deal of latitude with respect to the people that we employ as our confidential assistants, and people we trust. The examiners whom we sent out are oftentimes the only persons whom the general public see. They are, as far as the general public are concerned, the Commission. On their tact, their skill, their demeanor, and their honesty depends our honor, the success or failure of our work, and the future of our professional careers as members of the Commission. In the light of that, I submit that we ought to have the utmost freedom which good administration will permit. Now, we are tickled to death—and I think the Congressmen areto have to go to the Civil Service Commission for these examiners. It takes a tremendous burden of pulling and hauling pressure off you

The CHAIRMAN. I think we have the picture you have in mind. You do not need to go further into that. How many examiners do you have there?

Mr. AITCHISON. I cannot answer that directly.
The CHAIRMAN. Approximately?

Mr. AITCHISON. You will be surprised to know-I happen to know this—that at the present moment in the highest grade we have there are only two men who are presently available to hear cases. I know that because I have one of those highest grade cases assigned to me, and I cannot get an examiner to help me.

The CHAIRMAN. Do you know how the others are engaged !

Mr. AITCHISON. The others are assigned to other work. I think there are only four under the total grade—unable to function with respect to the hearing of cases. It is a situation we have to correct. We shall have to have more men. But that is not the entire story.

Mr. SPRINGER. Could you not approximate the number of employees and examiners you have in your agency?

Mr. AITCHISON. Of all the employees, there are more than 2,000.

Mr. SPRINGER. Yes; now, could you approximate for us the number of examiners you have, so that we will have some idea ?

Mr. AITCHISON. Including motor carriers, finance, those on the formal cases, and those who are assigned to the handling of these shortened procedure cases, approximately 200 of all grades.

The CHAIRMAN. What my colleague is trying to get at is how many really exercise, may I call it, quasi judicial responsiblity.

Mr. AITCHISON. Well, they all do within the ambits of their delegation and responsibility.

The CHAIRMAN. Some of them you merely send out to get some isolated facts, do you not?

Mr. AITCHISON. That is a different proposition.
The CHAIRMAN. They are not classed as examiners?
The CHAIRMAN. All right. We have that.

Mr. AITCHISON. We have always been very careful to keep our organization operating in such a way that it is completely public. I pass up to the bench-perhaps the members of the committee might care to glance at it—a copy of the organization make-up of Commission.

I might call your attention to the matter of judicial review. I have here a page and a quarter that I have read over the telephone to Judge Phillips, who is chairman of the committee of the judicial conference considering the matter of review. That conference is still wrestling with the question of review of orders of these administrative agencies which are heard before three-judge courts and are appealable to the Supreme Court as of right. I merely make that suggestion.

I must mention the matter of judicial review-obviously one of great importance. As is well known to the members of this committee, and as appears in the proceedings of the judicial conference, for nearly 3 years a committee appointed by the Chief Justice has been considering the matter of judicial review of orders of administrative agencies which by law are heard before three judges and are appealable as of right to the Supreme Court. A bill has been drafted and circulated widely by the committee, of which the Honorable Orie L. Phillips is chairman, and comments of the bench and bar have been invited thereon. That draft relates particularly to review of orders of the Interstate Commerce Commission, but, as appears by the minutes of the judicial conference, that body has in mind the possibility of making it a model bill for other agencies. While I am a member of that committee by the courteous invitation of the Chief Justice, I am not speaking for the committee. But I deem it my duty to direct your attention to the work which the judicial conference is doing upon this subject of judicial review and suggest that you give my suggestion whatever consideration is appropriate.

STATEMENT OF WILLIAM E. ROSENBAUM, ST. LOUIS, MO. The CHAIRMAN. Mr. Rosenbaum, I dislike putting it this way, but we can give you just about 10 minutes.

Mr. ROSENBAUM. That is all I asked for, Mr. Chairman.
The CHAIRMAN. All right. You may proceed.

Mr. ROSENBAUM. Mr. Chairman and gentlemen, my name is William Edward Rosenbaum. My address is 952 Cotton Belt Building,

transportation consultant. I am not a lawyer, but I have been practicing before the Interstate Commerce Commission, as many others who are not lawyers have been.

Mr. WALTER. "Maybe we can save a little of your time by calling your attention to the language in the bill as originally introduced and also in the revised text of the Senate bill, in which it is provided that any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied and advised by counsel, or, if permitted by the agency, by other qualified representatives. So you have no reason to fear anything in this legislation.

Mr. ROSENBAUM. That is, provided, the House adopts the same revised text.

Mr. WALTER. The same provision is in the other bill. Every interested person shall be accorded the right to appear in person or by counsel or other qualified representative.

Mr. ROSENBAUM. But I should like to call your attention to this, Congressman: In H. R. 1203, while I see what you just quoted in lines 5 and 6, in section 6, page 8, you have failed to make that provision in line 11. You say there, beginning on line 9 :

Every person appearing or summoned in any agency proceeding shall be freely accorded the right to be accompanied and advised by counsel.

We would like to have added thereto what you just read in line 5.

The CHAIRMAN. I think you may depend on that being taken care of. I understand that Mr. McFarland, in his statement the other day, said there was no disposition to disturb the existing arrangement.

Mr. ROSENBAUM. I understand that, but I should like to call your attention to what I think is an oversight in having failed to include in line 11 “or other qualified representative.” All we want is that addition.

I am speaking not only for myself here, Mr. Chairman, but I am speaking also for 50 other nonlawyer practitioners. I shall leave here a list of those who have authorized me to appear for them. You will notice we have covered chambers of commerce, transportation agencies, and agricultural interests throughout the country:

The CHAIRMAN. That will be incorporated with your statement; and you may file a more complete statement in lieu of your remarks.

Mr. ROSENBAUM. I should like to have permission to extend my remarks. I have here also a telegram from the Southern Industrial Traffic League, signed by O. H. Weaver, president, which I should like to read. It is dated Griffin, Ga., June 20, 1945, and reads as follows:

Understand you will appear before House Judiciary Committee in opposition to bill H. R. 1203. As the rights of nonlawyer practitioners are in jeopardy, the league is on record opposed to this bill. Will appreciate you also speaking for us.

Now, I understand that the members of the Southern Industrial Traffic League control at least 95 percent of the shipping of the Southern States.

I have also a similar statement from the North Carolina Traffic League.

Mr. GWYNNE. You are satisfied with the wording of the Senate committee print!

Mr. ROSENBAUM. Yes; I am.
Mr. GWYNNE. That is satisfactory?
Mr. ROSENBAUM. Yes; it is.

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