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gentlemen, but I think we must not look at the personnel. The personnel may be all right now, but we must look to the future.

Senator GLASS. I don't care what the personnel is. It seems to me perfectly absurd to say that a commission, whatever its personnel may be, shall determine a matter upon any sort of evidence, however inconsequential.

Mr. HOOVER. As I was about to say, the effect of that, Senator, would be to put it in the hands of a commission to make arbitrary and capricious orders which could not be reviewed and corrected by the courts.

Senator KEAN. Well, now, what about No. 65?

Senator ROBSION. Before you leave 64; if you should put in there "the weight of the evidence," then, of course, that would mean that the courts could review any order made by the commission, wouldn't it?

Mr. HOOVER. Yes.

Senator ROBSION. I say, that would mean the courts could review any order made by the commission?

Mr. HOOVER. Yes, the courts could.

Senator KEAN. But they would have to decide it on the facts. They could not take testimony. They would have to decide it on the weight of the evidence already submitted.

Mr. HOOVER. This draft of the law as it stands now contemplates additional evidence being offered before the court, because as you will see in paragraph 66

Senator KEAN. How about 65? Let us go on.

Mr. HOOVER. Sixty-five, standing alone, I would have no objection to. The only suggestion we have as to an amendment to that, is this; that they provide for certiorari to the Supreme Court of the United States. Under the provisions of section 240 of the Judicial Code we do not think that a certiorari should be limited to that section of the Code, because we think it better to provide that it should be:

as provided by law with respect to other cases in said Court of Appeals.

Senator KEAN. Why should you have two appeals? Is that necessary?

Mr. HOOVER. We do not have in this case, Senator. We are simply put in the position, as every litigant is, under the act of February 13, 1925, which Congress passed at the request of the Supreme Court, very largely to do away with appeals on writs of error to the Supreme Court of the United States. Now, you are practically relegated to certiorari to get to that court, unless you have purely a constitutional question involved, and if you go up on a writ of error or appeal, the court will only review a constitutional question and no other question in the record. So, we are simply taking here the general provision of law applicable to certiorari and incorporating it in this statute. I take it that is what Mr. Hartman has done so far as certiorari is concerned. We do not see the reason for this drastic change in this statute.

I was about to call attention to the reason which Mr. Hartman gave at the time he appeared before the committee.

Senator KEAN. Now, which paragraph are you talking on now? Mr. HOOVER. This relates to the bill generally.

Senator KEAN. Why not take it up paragraph by paragraph and let us see what you have on each paragraph?

Mr. HOOVER. Very well.

Senator KEAN. Won't we get along faster that way?

Mr. HOOVER. I don't know, Senator. I will be glad to accommodate myself to your wishes. I was just about to state that the reason they say this law ought to be amended is that they say it is out of line with the statutes in the States of the United States. The statement has been made that

Senator GLASS. Thirty-five States in the Union.

Mr. HOOVER. Thirty-five States in the Union have laws similar to the one proposed here. Our investigation shows the contrary. Our investigation reveals, as we have tabulated here in the form of a compilation, that the only States in the United States where the statutory law provides that the findings of fact by a commission shall be conclusive in the court on appeal are the States of Arizona, California, Colorado, Maine, and Massachusetts. Those five States.

In 43 of the States of the United States the court has the power to review the facts on appeal from a commission order to the court. In one State, the State of Delaware, they have no public utility law. So that that is really the situation so far as the States are concerned. The statement made that 35 of the States have statutes which make the findings of fact by a commission conclusive upon the court is not in accordance with the facts as we gain them in our investigation.

This compilation was prepared by Mr. Bowen from the statutes of the States, and I will be very glad to file that with your committee. The CHAIRMAN. Very well.

(The compilation referred to is as follows:)

(Excerpts from State statutes providing for appeals from orders of commissions, in which the court is not empowered to review a finding of fact independent of any constitutional question.)

Arizona: After a hearing as to valuation, shall be conclusive evidence of the facts therein stated, as of the date and conditions then existing. Such facts shall be controverted only by showing subsequent change in conditions.

California: Findings and conclusions of the commission on questions of fact shall be final and not subject to review.

Colorado: Findings and conclusions of the commission on disputed questions of fact shall be final and not subject to review.

Maine: Questions of law may be raised by alleging exceptions to the ruling of the commission on an agreed statement of facts, or on facts found by the commission, and such exceptions shall be allowed by the chairman of the commission and certified by the clerk thereof to the chief justice of the supreme judicial court with the arguments of counsel, if any, with 60 days after such exceptions have been allowed. Such questions of law shall be considered and decided by the law court.

Massachusetts: The supreme judicial court shall have jurisdiction in equity to review, modify amend or annul any ruling or order of the commission, but only to the extent of the unlawfulness of such ruling or order.

(Excerpts from State statutes providing for appeals from orders of commissions, in which the court is empowered to review a finding of fact independent of any constitution question.)

Alabama: Commission to certify to said court a record of proceeding before it, including all orders and pleadings and a transcript of all testimony and evidence, and a trial de novo.

Any additional evidence bearing on the validity, fairness or reasonableness, or the contrary of such rates or charges, may be introduced by either party.

Arkansas: Within 30 days after the entry of any order by the commission any aggrieved party may appeal to the circuit court as a matter of right and shall have preference over all other cases on the docket; and said court shall in a sum

mary manner have power to review the cause as to facts and law and may vacate or modify the order of the commission.

Connecticut: Any company, municipality, corporation, or person aggrieved by any order, authorization, or decision within 15 days after filing thereof may appeal to the superior court, which shall hear the appeal as if upon complaint for equitable relief, and the court's decision, subject to review on appeal to the supreme court of errors on questions of law, shall be conclusive upon the parties. Florida: The act contains no specific provisions for review of the commission's orders, but due process of law is declared to be afforded by the right of the utility to defend itself against enforcement proceedings instituted by the commission.

Every order made by the commission shall be deemed and held to be within its jurisdiction and powers and to be reasonable and just and such as ought to have been made in the premises and to have been properly made and arrived at in due form of procedure and such as can and ought to be executed, and shall not be set aside or held invalid unless the contrary so appears. All presumptions shall be in favor of any action of the commission and all doubts as to its jurisdiction and powers shall be resolved in its favor.

Georgia: An injunction may be brought in a superior court to have the reasonableness of the orders of the commission determined and an appeal lies to the supreme court.

No court of the State, other than those of Fulton County, shall have or take jurisdiction in any suit or proceeding brought or instituted against the commission or any of its orders or rules.

The printed reports of the commission shall be received as evidence without further proof; and any schedule approved by the commission and any order or rule of the commission shall be admissible in evidence in any court upon the certificate of the secretary of the commission.

The rate prescribed by the commission for railroad corporations shall, in suits brought against any such corporation, be deemed and taken in all courts of the State as sufficient evidence that the rates therein fixed are just and reasonable. Idaho: Within 30 days after the application for rehearing is denied or decision rendered any party aggrieved may appeal to the supreme court.

Supreme court may, after hearing, affirm or set aside.

Illinois: The findings and conclusions of the commission on question of fact shall be held prima facie to be true.

Indiana: Any utility, person, or corporation in interest dissatisfied with order, etc., may commence an action in the circuit or superior court to vacate or set aside or enjoin the enforcement thereof.

Iowa: It appears that review is in the nature of an appeal to any court of proper jurisdiction or district court with right of appeal to the supreme court and in some instances by appeal to district court by a suit de novo.

Kansas: Any utility or other party in interest dissatisfied with any order of the commission determining any valuation, rate, joint rate, charge, finding, regulation, classification, schedule, service, or security issues, may within 30 days thereafter begin an action in court against commission to vacate and set aside said order on the grounds of unlawfulness or unreasonableness, with appeal from the district court to the supreme court as in civil actions. All such rates, etc., unless temporarily stayed or enjoined to remain in full force and effect until final judgment.

Kentucky: The chairman of the commission is authorized to file a petition in equity in the name of the Commonwealth in the circuit court to compel any utility to obey, execute, comply with, or make effective any order of the commission, with the right to appeal to the court of appeals by either the commission or the utility.

Louisiana: A court of competent jurisdiction may affirm, change, modify, alter, or set aside such order as justice may require.

Maryland: The burden of proof in all such actions and proceedings shall be upon the party adverse to the commission or seeking to set aside its determination or order to show by clear and satisfactory evidence that such determination or order is unreasonable or unlawful.

Michigan: Equity suit may be brought to vacate or set aside any order as unlawful or unreasonable, and such suit shall proceed to be tried and determined as other chancery suits. Either party may within 60 days appeal from judgment of the circuit court to the supreme court in accordance with statutes and rules governing chancery appeals.

Burden of proof shall be upon complainant.

Minnesota: Any party to a proceeding or any party affected by any order of the commission on the State may within 30 days after service of copy of such order on the parties of record, appeal to the district court. The court may affirm or vacate and set aside the order, but the appeal shall not stay or supersede the order appealed from, unless the court after hearing shall direct.

Missouri: Within 30 days after application for rehearing has been denied or otherwise adjudicated complainant may apply to the circuit court for a writ of certiorari or review for the determination of the reasonableness or lawfulness of the commission's order, such writ shall be tried and determined as suits in equity. Upon such hearing the circuit court shall enter judgment either affirming or setting aside the order. From judgment thereon appeal may be had thereon to the supreme court.

Montana: Nothing in the public service commission law shall be construed as vesting judicial powers on said commission, or as denying to any person, firm, association, corporation, municipality, county, or village the right to test in any court of competent jurisdiction the legality or reasonableness of any fixed order made by the commission in the exercise of its duties or powers.

Nebraska: The procedure to obtain such reversal, modification, or vacation of any such order or regulation upon which a hearing has been had before the commission shall be governed by the same provisions in force with reference to appeals and errors proceedings from the district courts to the supreme court. Nevada: Action to vacate. Any party in interest dissatisfied may within 90 days commence an action to vacate and set aside any order on the ground that the rate fixed is unlawful or unreasonable. Commission to file answer within 30 days, ready for trial on 20 days' notice to either party. All actions shall have precedent over other suits and shall be tried and determined as other civil actions; either party may introduce new evidence.

New Hampshire: The findings of the commission upon all questions of fact shall be deemed prima facie lawful and reasonable, and the order or the decision appealed from shall not be set aside or vacated except for errors of law or unless found unjust or unreasonable by a clear preponderance of the evidence.

New Jersey: Appeal: Any party to proceedings before the commission may appeal from the order to the supreme court, which shall hear and determine such appeal on the merits. (This seems to be superseded by the provisions for certiorari.) Certiorari: Within 30 days from the effective date of any order of the commission, application for review by certiorari may be made to the supreme court, which may review said order and set it aside in whole or in part if ultra vires or unsupported by evidence, but not for informality unless the rights of the prosecutor in certiorari are substantially impaired.

New Mexico: In addition to the other powers vested in the supreme court by this constitution and the laws of this State, the said court shall have the power and it shall be its duty to decide such cases on their merits, and carry into effect its judgments, orders, and decrees made in such cases, by fines, forfeiture, mandamus, injunction, and contempt or other appropriate proceedings.

New York: No order staying or suspending an order of the commission fixing any rate, fare, or charge shall be made by the supreme court otherwise than upon notice and after hearing; and if the order of the commission is suspended the order suspending the same shall contain a specific finding based upon evidence submitted to the court that great and irreparable damage would otherwise result to the petitioner.

North Carolina: When an exception is made to the facts as found by the commission, appeal shall be to the superior court in term time, otherwise to the judge at chambers. The party appealing shall, within 10 days after the notice of appeal has been served, file with the commission exceptions to the decision or determination overruling the exception, which statement shall assign the errors complained of and the ground of the appeal.

If there are exceptions to any facts found by the commission it shall be placed on the civil issue docket and shall have precedence of other civil actions, and the rates fixed by the decision or determination made by the commission shall be prima facie just and reasonable.

North Dakota: On appeal the lawfulness of the decision or order shall be inquired into and determined on the record of the commission as certified to by it. Ohio: Any valuation of a utility or a railroad shall be subject to a review by the supreme court the same as other orders and decisions of the commission.

Any final order by the commission shall be reversed, vacated or modified by the supreme court on a petition in error filed within 60 days of the entry of such order, if such court finds that such order was unlawful or unreasonable. Any party may be permitted to intervene.

Oklahoma: The supreme court shall have jurisdiction, on appeal, to consider and determine the reasonableness and justness of the action of the commission appealed from, as well as any other matter arising under such appeal.

Oregon: Suit as suit in equity: May commence a suit in the circuit court of the county in which the hearing was held to vacate and set aside any such order or portion thereof on the ground that the same is unlawful, in which suit a copy of the complaint shall be served with a summons, as in a suit of equity. Commission must answer within 10 days and suit shall then stand ready for trial upon 10 days' notice by either party. All such suits shall have precedence over any civil cause of a different nature and determined as a suit in equity.

Pennsylvania: The court may dismiss the appeal and affirm the order, affirm or reverse the order of the commission, or it may remand the order to the commission with directions to reconsider the matter and make such orders as shall be reasonable and in conformity with the law.

Rhode Island: Any utility or any complainant aggrieved by any order of the commission fixing any rate, etc., may appeal to the supreme court within seven days from the service of the order. All such appeals shall have precedence over other civil cases in the supreme court.

Every appeal shall act as a supersedeas unless the court of a justice thereof if the court is not in session order otherwise if justice, equity or public safety require and upon conditions which the court may determine.

South Carolina: Action to vacate to set aside may be filed, within 30 days after determination of application for rehearing, to vacate or set aside any such order of the commission or enjoin the enforcement thereof on the ground that the authorization, consent, rate, charges, fares, tolls, and schedules fixed in such order are insufficient, unreasonable, unjust and unlawful or that any such regulation, practice, act, or service is unreasonable, unjust, insufficient, or unlawful. The court may affirm or modify.

South Dakota: No new or additional evidence may be introduced or received in the supreme court but such cause shall be heard and determined in the said court upon the record of the commission as certified by it.

No court of this State, except the supreme court, to the extent specified in this act, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission.

Tennessee: The supreme court may review, affirm, reverse or modify the order or finding appealed from and the mandate of the supreme court shall be certified down to the commission in the same manner as in appeals in equity.

Texas: The burden of proof shall in all cases be upon the plaintiff to show that orders are unreasonable and unjust.

Utah: Such review shall not be extended further than to determine whether the commission has regularly pursued its authority and whether the order or decision violates the Constitution of the United States or of the State of Utah. The supreme court shall enter judgment either affirming or setting aside the order.

Vermont: Such appeal shall be taken and the cause entered in the supreme court in the county where the cause arises, under the law and rules governing appeals from any court of chancery and the supreme court shall have the same power therein as it has over appeals from such court.

Virginia: An appeal may, as of right, be taken by the corporation affected or by any person deeming himself aggrieved; such appeal being in the manner of appeals from inferior courts; the general assembly being authorized to provide appeal to the supreme court of appeals from any other action of the commission.

The appellate court may determine the reasonableness and justness of the action of the commission appealed from, except that such action shall be regarded as prima facie, just, reasonable, and correct; but, when justice required, such court may remand to the commission any case pending on appeal for further investigation and further report, thereon to the court by the commission before the appeal is finally decided.

Washington: Any complainant or any utility affected by any order of the commission may within 30 days after the service of such order upon it apply to the superior court for a writ of review to determine the reasonableness and

lawfulness of such order.

If such order is reversed for failure of the commission to admit evidence properly offered, the court shall remand the cause to the commission with instructions to receive the testimony improperly excluded and to enter a new order

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