By section 52, whenever an application is made for a patent which, in the opinion of the commissioner, would interfere, etc., the commissioner shall give notice * * * "and shall direct the primary examiner to proceed to determine the question of priority of invention. And the commissioner may issue a patent to the party who is adjudged the prior inventor, unless the adverse party appeals from the decision of the primary examiner, or of the board of examiners in chief, as the case may be, within such time, in less than 20 days, as the commissioner shall prescribe." 66 By section 57 provision is made for appeals from the decision of the primary examiner, or of the examiner in charge of interferences in such case" to the board of examiners in chief. These examiners are all mere employees. Section 58 provides that if such party is dissatisfied with the decisions of examiners in chief he may appeal to the commissioner in person. As appears by United States ex rel. Lowry v. Allen, decided in 1906 (203 U. S. 476), this practice had then been acquiesced in at least a quarter of a century, The constitutionality of that portion of section 2 which permits the commissioner to assign duties to be performed by the assistant commissioner of patents has been raised, and fully sustained. (U. S. ex. rel. Stapelton v. Duell, 17 Ct. App. D. C., 575.) The decision in this case completely demonstrates that there is no delegation of authority exercised by the department head, but that when he acts in assigning duties to his subordinate, under congressional authorization so to do, the power is placed in the subordinate by the act of Congress, and not as a mere delegation by an agent of Congress. Another illustration, taken from the legislative history of more than a century: 66 Obviously neither the Secretary of Labor nor the Commissioner General of Immigration could hear and determine all the questions which arise involving the right of a person to come within the United States, or to remain here. Therefore general rules have been laid down governing the important subject of human liberty involved, which are intrusted to the Department of Labor to administer. For the prompt and convenient decision of such question, the act provides that "boards of special inquiry" may be appointed by the Commissioner of Immigration or inspector in charge at the various ports of arrival" as may be necessary for the prompt determination of all cases of immigrants detained at such ports under the provisions of the law." Each board consists of three members, I who shall be selected from such of the immigrant officers in the service as the Commissioner General of Immigration, with the approval of the Secretary of Labor, shall from time to time designate as qualified to serve on such boards." In certain cases the Secretary of Labor may even authorize the creation of boards of special inquiry by the immigration officials in charge at such ports, and shall " determine what Government officials or other persons shall be eligible for service on such boards. "Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported." Provision is made for appeal through the superior immigration officers to the secretary, but "the decision of a board of special inquiry adverse to the admission of such alien shall be final, unless reversed on appeal to the Secretary of Labor." (U. S. Code, title 8, sec. 153.) The decision of such a board, affirmed on administrative appeal, is final, except for manifest abuse of power and discretion. Such a decision was enforced in Tulsidas v. Insular Collector of Customs (262 U. S. 258), May 21, 1923. * * * An earlier statute on the same subject, provided for the appointment by the Secretary of the Treasury of immigration inspectors, who were to have power to administer oaths, and "to take and consider testimony to the end that their decisions should be final unless appeal should be taken to the superintendent of immigration (an officer in the Treasury Department under the control and supervision of the Secretary of the Treasury) and through him to the Secretary of the Treasury." This was sustained as constitutional. Nishimura Ekiu v. United States (142 U. S. 651), where the court referred to the long and unchallenged exercise of like assignment. It appears that for many years the law even permitted the Secretary "to make contracts with any State commission, board, or officers" to perform like fact-finding functions. Prolonging these citations of statutes which are similar to that recomended by the commission would be an easy task. Virtually every department has gone through the same experience, and Congress has answered by giving to the department head the power to fix the duties of his subordinates, and authorized performance of such duties so assigned. These assignments have universally been sustained by the courts. The power is now seldom even questioned. To the cases cited add, as showing the wide application of the principle underlying the commission's proposal, Bowling v. United States (299 Fed. 438); John Shillito Co. v. McClung, 51 Fed. 868); and Turner v. Seep (167 Fed. 646). CLYDE B. AITCHISON, Commissioner. As a preface to the explanation of the reasons for the bill, I have had placed on your desks a diagram showing the present division of the commission into divisions and its organization in other respects. The duties assigned to each of the six divisions are indicated on the diagram. I should say with reference to that diagram that it shows Commissioner Lewis as a member of the commission. I am sorry to say that he is not at present a member, but I did not think it necessary to change the diagram in that respect. You will also find copies of a description of the "Organization and manner of work of the Interstate Commerce Commission," which Commissioner Aitchison prepared and gave in the form of a lecture at Princeton University in 1929, and which was published as Senate Document No. 8, Seventy-first Congress, first session. I may add that experts on organization have in the past gone over the commission and have made favorable reports. The delegation of duties to divisions has worked out very satisfactorily, and without it the present volume of work could not have been handled. All that we are now asking is an opportunity to extend the same principle a little further. While the members of the commission find their time very fully occupied with an abundance of hard work, they are not seeking this authority for the purpose of escaping from work, but so that they can do better work. In my judgment the members of the commission will work just as hard if and when this bill becomes law as they do now, but the work of the commission will be done more expeditiously, thoroughly, and effectively. Sound principles of organization demand that those at the top be able to concentrate their attention upon the larger or more important questions of policy and practice, and that their time be freed, so far as possible, from the consideration of the smaller and less important matters of detail. These principles are not observed in our organization at the present time as fully as they might be if H. R. 7432 were made law. We do now commit a vast amount of detailed work to subordinates, but nevertheless all this work leads up to action for which members of the commission must be directly and immediately responsible and which is taken in their names." The preliminary work, for example, of hearing the evidence in a rate case and preparing a report may be and usually is done by examiners, but when that case comes on to be argued, it is members of the commission who hear the argument and it is they who must finally decide the case. Whatever the preliminary work may have been, this necessitates study and consideration of each individual case by members of the commission. To show you the extent of the work which now requires personal exercise of discretion by commissioners, our records for the year ended October 31, 1932, show the following: Formal rate case decisions, not including subcomplaints-- 1, 175 509 626 30 667 Orders instituting investigations on commission's own motion- Final valuations adopted-- Tentative recapture reports approved for service_. Final recapture reports adopted___. Reports on bills to committees of Congress_. Prosecutions for violations of law considered_ Applications for medals of honor approved or rejected_. Emergency service order_ Orders as to regulation for transportation of explosives and other dangerous articles___ Standard time zone act orders_. Proposals of Postmaster General under parcel post act considered_. Certificates of public convenience and necessity for construction, opera- Authorizations sought for acquisition of control of one carrier by another_ Applications for approval of issue of securities or assumption of Applications for approval of interlocking directorates or offices_. Total. 65 122 10311 155 31 18 190 366 5 121 4, 269 In addition there were 1,489 administrative and procedural matters requiring entry of minutes and the exercise of personal discretion by commissioners. Of course some of these matters consumed more time than others. To illustrate what a comparatively small item may involve, however, I call your attention to one in which I have much personal interest as chairman of the legislative committee. You will note that 65 reports on bills were made to committees of Congress. These were written reports, and they all involved considerable time and study; but the item does not include the days spent in appearances and the presentation of testimony before committees of Congress, nor the very considerable time spent in preparation for such appearances. Nor does it include the time spent in preparing bills covering each and every one of our recommendations for legislation, which was done during the year in question. A large number of the matters included in the list above involved the hearing of arguments before the commission or divisions thereof. There are very few days in each month when arguments are not scheduled, and frequently they last from 10 in the morning to 4 in the afternoon, or occasionally, even later. A very large number of the matters, also, necessitate conferences of the commission or of its divisions. Regular conferences of the commission are held on the first and second Mondays and Tuesdays of each month and usually last all day. Special conferences are also called quite often, and conferences of divisions are held from time to time. In the consideration of loans to railroads under the Reconstruction Finance Corporation act, division 4 of the commission has found it necessary to meet very frequently, both to confer upon loans and to hear those who are seeking them. In this respect it has functioned in much the same way as do directors of banks. Members of the commission usually are assigned to two or more divisions. The conflict in duties and engagements often makes it difficult to secure a conference of the members of a particular division without delay, a difficulty which this proposal would tend to avoid. Because, also, of the large number of cases to be argued and the other engagements of the commissioners, it has been necessary to limit the time taken in arguments very severely, and often to the discontent of the lawyers who do the arguing. In the year for which I have given statistics most of the commissioners devoted considerable time to the hearing of evidence in some of the larger and more important cases, often traveling for this purpose. Such hearing of evidence and traveling by commissioners is, in my judgment, highly desirable from every point of view, and it is one of our hopes that the passage of H. R. 7432 will allow more opportunity for such work. A further, and to my mind serious, effect of the continual drive of this routine of work is that it is difficult for commissioners to find time to study the essential statistics of railroad operations, to grasp the trend of events, and to ponder in quiet over the really big questions of policy and principle. There is, of course, in the last analysis no more important work than this which the commissioners can do. As we have stated in our annual reports, it is our hope and expectation that if the additional authority to delegate work which we seek in H. R. 7432 is granted, it will have the following good results: First, enable the commissioners to devote more time and attention to the matters of major importance, of which there is an abundance; second, expedite the handling of the commission's work generally; third, give more opportunity for oral argument before the body rendering decision in the first instance. A further result which may assume considerable importance is that it will enable the commission to expand its work very materially, if that should become necessary. To illustrate this, I have endeavored to outline in my own mind how the commission might expand its organization and handle the work if it were given comprehensive powers of regulation over all agencies of interstate transportation. for hire and more duties with respect to railroad reorganizations, and if it also had the authority which is sought in H. R. 7432. You will understand that there is nothing official about this outline, and that it probably could be very considerably improved if all of the commissioners were to put their minds to the problem. Nor do I mean to imply that there is a probability that our duties will be expanded to the extent suggested. The outline is offered merely as illustrative of possibilities if H. R. 7432 were law. It would involve 1. The creation by the commission of a new bureau of motor transportion to handle all matters in connection with the regulation of motor vehicles, except accounting and tariffs, which could be handled by our present Bureau of Accounts and Section of Tariffs. This new bureau should have attached to it at least three men of first-rate ability who are experienced in motor-vehicle transportation, a body of examiners to hear motor-vehicle cases, and a board of three such examiners to decide minor cases initially. If the volume of business proved large, it might be necessary to have two separate boards of three, one for rate cases, and the other for certificates and other matters. 2. The creation of a new bureau of water transportation, organized and functioning along similar lines. 3. In our present Bureau of Finance, the creation of a section for work on railroad reorganizations, recruited from our present force but augmented by some new men with the appropriate legal and financial experience. We should also have in this bureau a board of three examiners for the initial decision of cases of lesser importance. 4. In our Bureau of Formal Cases, the creation of a board of three examiners for the initial decision of cases relating chiefly to tariff interpretation, another board of three for the initial decision of cases relating chiefly to misrouting and demurrage, and another board! of three for the initial decision of shortened procedure cases not included above and cases where no exceptions are filed to the examiner's proposed report. We could probably, if desired, and if necessary, classify out certain other cases to refer initially to still another board of three. 5. Every board of employees for the initial decision of cases would have instructions to refer, in their discretion, to a division of the commission any cases which seemed to them to be of importance from the standpoint of principle, i. e., to involve a new principle or a new application of an old principle. 6. Various duties apart from the decision of cases and now handled by divisions could, from time to time or generally, be referred for action to individual members of the commission. Let me illustrate the kind of cases which I believe could be delegated with advantage to boards of employees, by describing one particular class. We have a very considerable number of cases where the chief issue is whether a rate which was charged was in accordance with the published tariff. They require interpretation of the language of tariffs and often involve complicated and difficult questions. Such questions are not of major importance, and perhaps the most desirable thing is that whatever interpretations are necessary shall be consistent one with another, so that the carriers and the shipping public shall know what to expect. A board of examiners, specializing on such cases, should be able to handle them quite as well as commissioners, and could give the parties a better opportunity for oral argument. There are other classes of cases to which similar comments would apply. Of course, the success of such delegation of work would depend largely on the employees whom we might select for membership on the special boards. I am confident that we have employees who could do the work well, and that we would be able to select such men. If it were shown by events, however, that we had in a certain instance made a poor selection, this fault could be corrected without |