First, the functions of the Commission are so numerous and vard as to require widely different forms of administrative procedur each suited to the nature of the individual function performed.

Second, the procedural methods employed have evolved from the cooperative efforts of the Congress, the judiciary, the Commission and its practitioners, over a period of more than 50 years.

Senator O'MAHONEY. Now, these procedural methods in the Interstate Commerce Commission are the result of the voluntary action of the Commission by reason of its experience, are they not?

Mr. AITCHISON. Conforming, of course, to the peculiar provision of the statute which may have prescribed the procedures.

Senator O'MAHONEY. Naturally, but so far as the procedures ar not provided in the law, the Interstate Commerce Commission coul change them at any time?

Mr. AITCHISON. Yes. In fact, we are going to show later the scope of our wide discretion in the choice of methods, and we ask that the ability to experiment with procedure be preserved, not only for ourselves, but generally for all the agencies.

Senator O'MAHONEY. So that a bill exempting the Interstate Commerce Commission from any general rules of procedure, or affecting the procedure, amounts to a grant of power to the Interstate Commerce Commission to make its own rules and regulations?

Mr. AITCHISON. Yes; that is what we have, at the present time. It would leave the situation unchanged as to the Commission.

Many of the procedural processes which have received wide con mendation and are even proposed to be made mandatory and of general application, are the direct result of the experimentation of the Interstate Commerce Commission, sometimes in the face of opposition. I want to mention the use of examiners for hearing officer. the examiner's proposed, or "intermediate" report, the use of verified statements in lieu of personal appearances of witnesses, and the shortened procedure. In the administration of the Motor Carrier Act a plan for field examination and consideration of probably uncontested applications for certificates or permits was devised, which led to an examiner's or joint board's proposed report without a formal hearing. with a 30-day opportunity to object. An objection automatically reopened the matter for hearing. About 2,000 applications were dis posed of in this manner without objection from anyone. Further, in apparently "open and shut" cases which have been heard, the use of a summary form of report stating merely conclusions, which dispose of the matter except in the rare event of exceptions thereto, resulted in the saving of much time and labor on the part of an overburdened division of the Commission. Another illustration is in respect to prehearing conferences, where certain qualifications upon the conferenc are apparently emerging into form, which have not arisen in cour practice and which the framers of these bills could not have antic pated.

These improved procedural methods could not have been discovered if, when the Commission began the experiments, it had been bound by a rigid procedural code, even though that code reflected the best thought of the day. We regard our ability to experiment freely i procedural matters as of great importance. It is distinctly against the public interest that a desire for uniformity of practice or any

ther like reason should be made the excuse for depriving the adminstrative agencies of opportunity for experimentation and development of their procedural methods. Flexibility in procedure should be encouraged, rigidity discouraged.

Some of the points I am making now are not in opposition to the present bills under discussion, but relate to several which have preeded them.

The third point is that the process of formulation and revision of procedural methods, both statutory and as adopted by the Commison, has resulted in generally sound and convenient procedural methods, which are severally well adapted to meet the requirements of the Constitution and the widely varying statutes administered by the Commission.

My fourth point is that the procedural

Senator CHANDLER. Let me ask a question: How will they be understood if you change them frequently and how are they to know when you are going to change them; what the changes will be?

Mr. ATCHISON. The only changes are as a result of conferences and Consultation, and everyone knows in advance what is happening. Senator CHANDLER. You warn people in advance?

Mr. AITCHISON. Nobody is ever taken by surprise. In our practice, when a man goes into a case he knows what to expect from what has happened in some forty thousand cases-he knows the procedure that he is likely to have to meet, and if there is occasion for deviation from the formal rules, then special rules are set up and announced sufficiently advance so that all have an opportunity to give them consideration and to make objections if they want to.

Senator O'MAHONEY. I note that you are referring to procedural Lethods.

Mr. AITCHISON. Procedural methods only.

Senator O'MAHONEY. I gather that you mean that such methods and such rules and regulations that you create for the purpose of the produre do not necessarily affect the substantive rights of those who appear before the Commission.

Mr. AITCHISON. We don't think that they do; they should not, and, of course, if they should, it would be grounds for a serious complaint to the validity of our order, which I do not recall as ever having been

raised.

Senator O'MAHONEY. You are satisfied that the law-that the Constitution and statutes which you administer are sufficiently clear to protect the substantive right of all persons whose affairs are handled by the Commission.

Mr. AITCHISON. We think so. We have had, I think, more than 340 es which have been taken to the Supreme Court of the United States, that by the cooperative action of parties and the Court, our procedure has been fairly well sustained.

Senator O'MAHONEY. A little earlier in the statement you said, as I recall, that in the development of these procedural methods, by experimentation, that sometimes these experiments were undertaken against opposition.

Mr. AITCHISON. Yes; some were.

Senator O'MAHONEY. From what source?

Mr. AITCHISON. Within the Commission. For instance, the shortehed procedure was adopted only against the very strong protest of

certain of my colleagues who felt that it was depriving parties of a hearing, and that the Court would never stand for it. It seems that they were wrong, the way it worked out.

Senator O'MAHONEY. Has there been any opposition from the parties to the procedure, as it developed?

Mr. AITCHISON. The parties must consent to the application of the shortened procedure, and even where they do consent, while they waive certain rights, of course, to formal hearing, there is a sort of recapture clause in the rule which gives them the right, subsequently, before decision, to ask for a formal hearing. That is a form of escape clause. Senator O'MAHONEY. Now, you are referring to that type of trans action?

Mr. AITCHISON. That is what I had in mind when I was speaking of opposition.

Senator O'MAHONEY. Generally speaking, do the parties who appear before the Commission, or have affairs which are handled by the Com mission, have adequate opportunity to be heard with respect to the formulation of any of these procedural methods or is such an oppor tunity necessary?

Mr. AITCHISON. Well, I will go into that in considerable detail later, but I will give you a summary answer at the present time which may suffice until the full explanation is made.

Until within the last few years, I think, by and large, the Commission's rules of practice which were put out, were formulated out of its own consciousness, unaided; but since the Association of Practitioners before the Commission was created, about 10 years ago, w have had the current and constant advice and assistance, first, of the committees of that association with respect to procedure, and secord, the general free-for-alls which are conducted upon the reports of the committees of the association at the annual convention of the assciation, where procedural methods before the Commission are gen erally given a discussion. Some member of the Commission usually goes on the floor at that convention and discusses the proposed changes, and there is a good right-and-left-hand exchange.

At the present time we are completely revising our rules of practice to take care of the new situations caused by the passage of part III of the Interstate Commerce Act, and also because our rules are 5 years old, anyway. A draft of the initial code which has been prepared by certain of our employees, primarily for consideration by our commit tee on rules of procedure. It also has been submitted, simultaneously, to a standing committee appointed by the Association of Practition ers before the Commission, in confidence, and we have had the benefi of their views. It is our purpose, when all these views are coord nated and given preliminary attention, as a whole, to set the entire matter down for public hearing, so that hereafter the rules of practio of the Commission will be those which the Commission acts upon wit the benefit of the advice it is able to get, first in the formulation of the rules, and, second, in the public hearing.

Senator O'MAHONEY. But you tell us that that method which yo have devised within the Commission should not be imposed upon you agency, at least, by law?

Mr. AITCHISON. No; I made no such suggestion.

Senator OMAHONEY. Well, then I misunderstood your testimony. You say that the Interstate Commerce Commission should be exempted?

Mr. AITCHISON. No.

Senator O'MAHONEY. You did not say that?

Mr. AITCHISON. I said that I think it is a matter of consequence when the committee comes to draft this bill that heretofore there has been a general acceptance of the fact that the Commission should be exempted from all such proposals.

To reiterate our position, on the bottom of page 2 is the statement which covers that position:

If this committee feels that a general administrative procedure bill is in the public interest, including the procedure of the Interstate Commerce Commission, ertain important amendments would be required to meet situations such as those which will be outlined. The Logan-Walter bill, which was reported by this Committee at the last session, completely excluded the Interstate Commerce Commission.

That is, in outline, our position in the matter, and I propose to develop those points in my statement.

Continuing, if I may, with my statement, the fourth point is that the procedural methods employed are well understood by those who appear before the Commission as parties or as representatives and meet such general acceptance as satisfactory that not only is there no wide or general demand for change, but there is a consensus that any radical change in procedural methods would not be in the public

interest.

Fifth, the underlying reasons for making the radical procedural changes contemplated by these three bills are not found to exist in the procedures of the Interstate Commerce Commission.

Next I will call attention to the varied functions of the Commission growing out of the fact that directly and indirectly the Commission administers many acts and has functions under others. The original act to regulate commerce of 1887 has been subjected to 39 direct amendments, and about every 5 years during the present century the act has received a thorough overhauling by Congress as to both substantive and adjective features and provisions. The scope of the act has been Extended gradually, both horizontally, by including additional important types of transportation agencies, and vertically by subjecting additional functions of these agencies to the regulatory process. The original rather simple act to regulate commerce has become the Interstate Commerce Act, of three parts-and a fourth part is contemplated by S. 210, which passed the Senate at the present session. In addition to rates, the act now covers in more or less detail matters of capitalization, intercorporate relations, service, safety, valuation, convenience and necessity of operations, constructions and abandonments, and accounting practices. The regulation of intercarrier relations and Competition has become an important phase of the Commission's work. This extension of the regulatory function, both horizontally and vertically, has required the Commission to devise special types of administrative procedure as these new duties have been added.

By and large, if one of the three bills is to be enacted, or is to be taken as a model or starting point for amendment, the majority bill, S. 675, seems to be the best adopted to the situations found in the Commission's procedure. It should be amended to meet situations

which are common in the Commission's work, and it may well be they exist in other agencies which operate under similar laws. There ar several bodies today, such as the Federal Communications Commis sion and the Maritime Commission, that have been formed under acts similar to ours, and certain of their procedural provisions and as ministrative methods are bottomed on the Interstate Commerce Commission law and rules.

In giving consideration to the title of S. 918, "To provide for the more economical, expeditious, and just settlement of disputes wit the United States, and for other purposes," I will say that we do have come before us many disputes with the United States, althoug those which do are important. The adjustment of compensation t be paid by the Government for railway mail service, and the and ing of guaranty settlements growing out of Federal control, const; tute the major types of disputes with the United States which es come before the Commission under the present laws. The great bu of the Commission's work in no wise involves a dispute with the United States. While the public interest is present in all matter> which the Commission considers, that interest is not manifested in t adversary or disputatious manner as related to the immediate parties to the proceedings before the Commission. Proceedings before the Commission are not matters of private litigation but, of public co cern, and under an old rule of the Supreme Court (A. J. Phillips Co.v Grand Trunk Western Ry. Co., 236 U. S. 662; Pennsylvania R. C.. v. Stineman Coal Mining Co., 242 U. S. 298), anybody who fa within the terms of the Commission's decision can take the benefit ei it, although he was not a party to it. Furthermore, when the Com mission's order is permissive, the only necessary party is the applicant and the Commission represents the public and has a duty to represe the public. That was held in the old Sacramento case (242 U. S. 175. 188).

One other distinction which differentiates the Interstate Commen Commission from many other agencies is that its functions are pr marily and largely those of an investigatory character. That h been the golden thread that runs through the whole act, and th characterization has been emphasized over and over again, both the acts the Commission administers and in the repeated decisions of the courts. This characteristic furnishes the key for all statutes the Commission administers, for the interpretations of the courts, and for the whole mode of the administrative pattern. Both in cases of the most formal and controverted character, and in cases where the pres entations are lame and halting, the Commission's duty is to investi gate, to learn the facts, disembarrassed by any supposed admissions or stipulations of the parties (Procter & Gamble Co. v. United States, 225 U. S. 282), and, I may say, any incompetence of the parties, wit an outlook as comprehensive as the interest of the whole country, a in coldest neutrality (Interstate Commerce Commission v. Chica R. I. & P. Ry. Co., 218 U. S. 88, 102-103). In the exercise of the great powers, the Commission is not a disputant; its interest is, ami traditionally has been, to adapt its procedural methods to its dutie so that its determinations will be reached as economically, exped tiously, and as justly as possible, in order to effectuate the declar policy of Congress. As was said of another agency "like the Interstate Commerce Commissioi," "It is charged with the enforcement