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Mr. BOWEN. Exactly, and they should have it. The public should have a right to this as well as the utility.

Senator KEAN. Suppose you left out paragraph 66 entirely. What would happen then?

Mr. BOWEN. Bodily left out?

Senator KEAN. Yes.

Mr. BOWEN. And all that follows on the next page?

Senator KEAN. Yes.

Senator GLASS. Down to paragraph 67.

Senator KEAN. Yes; down to 67. Suppose you left that all out. In other words, that you left out that exclusive right, and you left out the right to bring in new evidence, and you merely refer to the court on the basis of the evidence already submitted in the case.

The CHAIRMAN. Senator, they have submitted some amendments to that paragraph which they say will make that paragraph all right.

Senator KEAN. I know they have submitted some amendments, but what I was getting at; it seemed to me that paragraph 66 just opened up the case and allowed people to come into court and introduce a lot of new evidence and mix up the thing, whereas the other way you simply submitted the case on the record already made before the Public Utilities Commission, and you got a decision one way or another on that.

Mr. BowEN. As a choice between putting it in and leaving it out, I would say eliminate it.

Senator KEAN. I mean to say, if you leave it out, then you go to the court with the evidence that has been brought before the Public Utilities Commission. The court merely makes a review of the case as presented from the evidence already taken. I mean to say, this right to put in new evidence, and the right to submit it again to the Public Utilities Commission merely makes for delay.

Senator ROBSION. In section 2 there it says that the commission shall consider the same, and then it says it may. It don't have to do it. It may modify or it may reverse its order.

Senator KEAN. I say that therefore you are merely making for delay. My theory of the thing was that if we submitted the thing on evidence as submitted before the Public Utilities Board

Mr. BOWEN. Senator, to answer you further there: If you should strike out paragraph 66, you should, it seems to me, strike out 67. But the suggestion made by Mr. Hoover in paragraph 66 seems so simple, and which would provide that the method of "review of the orders and decisions of the commission shall be as provided herein, and upon such review such court shall have the power to affirm, modify, or reverse such order or decision," and leave all the balance out. Senator GLASS. What is that, revise or affirm?

Mr. BOWEN. As far as we are concerned, if the court had the power to affirm or reverse it would be satisfactory, but the words are in here by the commission, and they don't do any harm if they want it in.

Senator KEAN. I think they have always got the right to reverse themselves while a suit is pending, haven't they? That is all that that means.

Mr. BowEN. Under the proposed legislation it is a question what the court has a right to do.

Senator KEAN. No, no. If the commission should reverse its order or decision.

Mr. BOWEN. Oh, yes, sir.

Senator KEAN. Paragraph 67 of that gives them the right—all that gives them the right to do is to say, "We are through; we will go out of court."

Mr. BOWEN. That should come out if paragraph 66 comes out.
Senator KEAN. I don't think so.

Mr. HOOVER. It is really a part of the same paragraph in the existing law, Senator. It really ought to come out.

Senator KEAN. Anybody has the right, if they choose, to go out of

court.

Mr. HOOVER. That is in contemplation of new evidence and the case being sent back. That has a relation to two preceding paragraphs.

Senator GLASS. Is there anybody from the utility commission objecting to the proposed amendments, the amendment suggested by Mr. Hoover?

Mr. HARTMAN. We would prefer to have the existing law to the proposed amendment.

Senator GLASS. Well, I thought we had gotten you people together. Senator KEAN. Have you got any objection to page 2, line 13, being changed to read "by the evidence"?

Mr. HARTMAN. Yes; the word "the," if substituted in there, would destroy the whole effect of the amendment, because it would give the court the power to review the findings of fact, which is just what we are trying to avoid. The word "the" was very purposely left out. Senator GLASS. Do you mean to say the most inconsequential evidence shall be used as a basis for the action of the court?

Mr. HARTMAN. I do not. The courts have unanimously held, as counsel very well knows, that there must be under the existing wording here proposed, substantial evidence to support the findings. There are any number of decisions on that point.

Senator GLASS. Why not make it clear by putting the word "the" in there?

Mr. HARTMAN. I have no objection to putting the word "substantial" in there. The word "the" carries an entirely different meaning.

Senator BLEASE. There is a difference in "substantial," too.
Senator KEAN. What about the word "weight"?

Mr. HARTMAN. I object to the word "weight," because that is giving the court power to review the evidence.

Senator KEAN. Sure.

Mr. HARTMAN. That was the whole purpose of this amendment, to avoid giving the court the power to review the evidence. The issue is very fairly drawn on that point, with the commission on one side and the utilities on the other, and every substitute they have suggested gives to the court the power to review the evidence and substitute its judgment for that of the commission.

Senator KEAN. Then, what objections have you to striking out paragraph 66 and 67?

Senator BLEASE. "Substantial," or even the weight of the evidence, gives the court jurisdiction, because you might have 10 witnesses who might swear to one thing and 1 might swear to another, and the 1 might be more worthy of belief than the other 10.

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Senator ROBSION. AS Senator Glass has pointed out, "the evidence" would take in all, the character of the witness, their knowledge of what they are testifying to, and all that. But I would like to inquire of the witness, is there any court we have now in any State-does the law of any State prevent the court from reviewing both the law and the evidence on the action of a public utilities commission?

Mr. HARTMAN. There are a number of States including those referred to by the carriers, and including a lot of others not referred to by the carriers where the extact language in this proposed amendment is in the statute and the court is excluded from reviewing evidence.

Mr. HOOVER. Can you name any other States?

Mr. HARTMAN. I will name them and read the exact verbiage of the law a little later. I intend to file with the committee the exact language with the section numbers of the laws of the different States. Mr. HOOVER. I filed the exact language from the States.

Mr. HARTMAN. Take Utah. That is one I can recall offhand. And Idaho is another.

Senator KEAN. Well, now, paragraph 66 on down through 67, would you object to having that stricken out? Is there anything in there that you are wedded to?

Senator GLASS. Before we get away from paragraph 64, what is the use or the sense in the commission submitting any evidence at all to the court if the court is not empowered to consider the evidence? Why not just have it read "such findings shall be conclusive, if such order or decision is not confiscatory"? What is the use of submitting any evidence?

Mr. HARTMAN. To avoid arbitrary action by the commission, Senator Glass.

Senator GLASS. What?

Mr. HARTMAN. To avoid arbitrary action by the commission. Senator GLASS. Well, but if the action of the commission is arbitrary and the court is not authorized to review it, what difference does it make?

Mr. HARTMAN. The court is authorized to see whether there was evidence to support the commission's finding, by the proposed amendment.

Senator GLASS. You see, the evidence might be utterly inconsequential. You don't let the court review the evidence at all.

Mr. HARTMAN. I think it was counsel for the carrier said that, and it was I who directly denied it, and said there were any number of decisions holding under this exact language that there must be substantial evidence to support the findings.

Senator ROBSION. Well, if that is true, why not put it in the law? I was just going to inquire awhile ago, even under that language if the courts would not hold they had the right to review it and take hold of it and decide it on the weight of the evidence.

Mr. HARTMAN. I get your point. I think the court would hold that, whether that particular clause was in the law or not.

Senator ROBSION. Then, can there be any real objection to putting the word "the" in there, which, as Senator Glass very well said, gives the court the right to pass upon all the evidence, or the weight of the evidence.

Mr. HARTMAN. I think it would be a waste of time for Congress to pass an amendment with the word "the" in there, because that wouldn't change the law one iota with respect to the question of review of facts.

Senator ROBSION. If we have the time to waste, what is the objection there?

Mr. HARTMAN. Only this, that you have now a law which you know the meaning of. With a mutilated law which no one has studied, mutilated amendment, you do not know what you are getting into. Senator ROвSION. I think the amendments are curative. It is mutilated as it stands now, I believe.

Mr. HARTMAN. I don't think so. It has had considerable study and all of the language, including the omission of the word "the" has been very carefully studied to see what the effect of it would be.

Senator BLEASE. Let me ask you this question. With the word "the" out, the bill as it now stands, the commission probably would have witnesses before them that they believed, and that testimony would be satisfactory to them. It might go to the court and the court might know something about those witnesses that the commission does not know. Is the court bound by the commission just because it has evidence?

Mr. HARTMAN. If there is substantial evidence the court would be bound by the decision of the commission if the amendments proposed by the commission were passed.

Senator BLEASE. That is the trouble, you don't express that in your bill.

Senator GLASS. According to your language, the court would be bound whether the evidence was substantial or unsubstantial.

Senator BLEASE. I know a man in your city that if he was to tell me something I would believe it if a hundred other men were to come and tell me if was not so. That is George E. Hamilton.

Senator KEAN. Well, now, I think we have finished that. How about paragraph 66? Suppose we cut out 66 and 67. I mean to say, that only makes for more work for the lawyers and slower decisions, more expense.

Mr. BOWEN. Senator Kean, if I might answer you by suggesting that you cut out paragraphs 66 and 67, and then you put in paragraph 64 the words "that the method of review of the orders and decisions of the commission shall be as provided herein, and upon such review such court shall have the power to affirm or reverse such order or decision."

Senator KEAN. Power to reverse?

Mr. BOWEN. Affirm or reverse. There ought to be some machinery, I take it, Senator, if you cut out all of 66.

Senator BLEASE. Wouldn't the word "modify" be a good word in there?

Mr. BOWEN. We have no objection, Senator Blease, at all.

Senator BLEASE. So that the court, if it wanted to, would have the discretion of modifying.

Mr. BOWEN. To affirm, modify, or reverse. Those three words. If they were put in after 64, I think you could cut out 66. Senator KEAN. Is not that a little broad?

Senator BLEASE. I think Senator Kean just wants to get rid of page 4.

Mr. BowEN. I think we could if we just put those words back. Another thing before leaving, I would like to bring to the attention of this committee that this time for appeal, which is in the commission's draft 60 days, is a little short. I understand they are nɔt opposed to 90 days. Am I mistaken about that, Mr. Hartman? Mr. HARTMAN. I didn't hear you.

Mr. BOWEN. As to the time of commencing a proceeding. We suggest 90 days instead of 60, 60 being rather scant. Is the commission opposed to that?

Senator KEAN. Of course, all lawyers charge by the day, so that 60 days would be too little for them.

Mr. HARTMAN. We have no objection to substituting 90. The present law is 120.

Mr. BOWEN. So we suggest 90.

Then, with respect to this section 2, which was read by Mr. Hoover:

That nothing herein contained shall be construed to affect the jurisdiction and powers of the courts of the District of Columbia with respect to any proceeding heretofore filed or now pending in said courts.

There are proceedings now pending on the part of several utilities before the courts.

Senator KEAN. Well, I don't know about that.

Mr. BowEN. It does seem that they ought not to be affected by it. That is a question for the lawyers.

Senator ROBSION. They couldn't be affected, could they?

Mr. BOWEN. I am afraid, Senator.

Senator ROBSION. An ex post facto law.

Mr. BowEN. We don't want any question raised about it. It is the usual saving clause.

Senator ROBSION. This matter relates to procedure, and if you have proceedings since this law has passed it would be under this law, it seems to me.

Mr. BowEN. That is what we are afraid of.

Mr. HOOVER. If this amendment is passed without this saving clause, the court would be deprived of jurisdiction to entertain those cases any further, because Congress confers this jurisdiction and Congress can take it away whenever it pleases, and this would take it

away.

Mr. BowEN. Another suggestion I was going to make. I don't know whether I ought to presume to do it, but I know it is the practice where there is legislation introduced relating to the District of Columbia, to refer it to the Commissioners of the District of Columbia. I don't know whether this legislation has been referred, but it has been the practice, so that we would have before us the report of the corporation counsel. There are legal questions here involved, and it does seem that on such a radical change in the existing law we ought to know what is the position of the corporation counsel with respect to these two proposals.

Senator GLASS. Have you been interviewing the corporation counsel?

Mr. BOWEN. No; I don't know what he is going to do, but I would like to know what his position is about this.

Mr. HARTMAN. He is counsel for the commission, Mr. Bowen? Mr. BowEN. Perhaps I shouldn't ask you here, but we don't know that there is any opinion here at all from him. It does seem we ought

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