*2 bill, in allegation outstanding support of the contention the order plaintiffs had was null because and void hearing, was the denied a fair and paragraph charge set forth IV that assistants, pur- delegated to porting acting Agri- to be Secretaries culture, powers authorities vested Stockyards Act, the Packers and 7 U.S.C. solely seq., Secretary. A. et § hearings, granted, That the such as were subordinates, were held such incorpo- made the and conclusions secretary rated said That the order. signed himself that his sole respect proceed- information with to the from was derived consultation with Gage, City, B. Kansas Mo. John Department employees ture, Agricul- for (Frederick H. T. Wood and Thomas presence largely plain- out of the Cooke, City, both of York New and Car- representatives. tiffs or their Cowherd, City, Mo., E. Kansas son the secretary Counsel moved to strike petitioners. brief), for paragraph ground bills on the Berge Cox, Hugh Sp. Wendell B. purely departmental this was a ad- Atty. Gen.(James Wilson,. Sp. Assts. to Asst, C. proceeding, and im- ministrative this court Gen., Atty. Brittingham, Jr., S. R. providently indulged that contention and Atty., Norfolk, Va., Sp. M. Maurice Subsequent- sustained the motion ly, strike. Mo., Atty., Milligan, City, S.U. of Kansas misconception of the limitations White, Sol., Department Mastín G. imposed proceed- review of Dagger, N. Agriculture, partment Agriculture, Atty., and G. De- sustained ings, the order was and the bills Washing- both of complaint D.C., dismissed. 8 F. C., ton, brief), D. on the for the United Supp. 766. Secretary Agriculture. and the States appeal On Court the de- Berger Douglas H. Stripp, Homer of this court reversed and some cree City, (Morrison, Kansas Mo. very pertinent both of and instructive rulings Nu- Byers Johns, Berger, respect & gent, proceedings of Kansas under the Mo., Stockyards City, brief), for New Amster- Act. Packers v. al., Casualty States, Co. et dam United 1288. It that: VALKENBURGH, Before VAN Cir- OTIS, Judge, and REEVES and There is “no basis cuit Dis- contention Judges. authority conferred section trict sion, epit- Stockyards for dissent was Act U.S.C. and the reason the Packers and [7 following of omized “It Department language: A. given to the § 211] impossible, Agriculture, judgment, department my in the admin- to read as a * * * recog- testimony Secretary without istrative sense. nizing that into the final deter- he carried *3 ordinary “The proceeding is not one of conception mination reached proceeding administration, stand- conformable belonging depart- to his purely ards execu- governing duties of a ment in an The ex- administrative sense. looking proceeding tive is a character. per- aminations and says he made casual fixing legislative of to action functory his the extreme. He' * * * agencies. of market represented final his reac- determination requiring “A proceeding this sort of findings the men in Bu- tions to of evidence, taking weighing of determin- Industry. accepted reau of Animal consider- of fact ations based regarded he his sub- because evidence, of making of and the ation position ordinates as in a better than him- supported findings, has a an order self to make decision. In his view ‘the pro- quality judicial resembling that of a phrase “Secretary Agriculture” per- of is * * * ceeding. haps regard used connections with hearing, “To of give the substance laws sort in the broad sense as well making purpose which is for the deter- as in the narrow sense’.” evidence, minations the officer who appeal On Court the de- must consider makes determinations again cree was reversed and the appraise justifies evidence which void for failure to al- undoubtedly may an duty them. be That hearing low the full required by before the one, performance of onerous substantial manner but the it in Stockyards the Packers and inseparable from the 773, 999, Act. 304 S.Ct. 82 L. important authority con- exercise of the Ed. 1129. * * * ferred. Secretary Agriculture at the out- be “Facts and circumstances must not firmly set was that au- legally considered influ- which should thority conferred section 310 that * * * ence conclusion. given Department Act is Agricul- conducting “In determining whether in department ture as a in the administrative administrative this sort Despite holding sense. complied has with the statu- Morgan Court in the first case fhat there is tory prerequisites, pro- the recitals of his (298 basis for this contention loc. regarded cedure cannot be conclusive. cit. 56 S.Ct. 1288), statutory Otherwise the conditions could view, in effect still adhered as wit- If naught up- be set at mere assertion. deposition ness his taken in the former alleged hearing’ the ‘full facts which, hearing, having referred quired by given, plain- was not the statute as the “ratemaker” the terms prove tiffs the facts were entitled and Act, “Yes, he said: that correct. I Secretary’s order set aside.” have the think, however, phrase would that the ‘Sec- retary Agriculture’ perhaps used in The conclusion that the district was regard connections with sort to laws of this striking allegations out the erred in Paragraph the broad sense as well as the nar- complaint. bills IV of row sense.” was and the The decree reversed cause re- Morgan manded with defend- opinion, directions that the second 304 U.S. required ants therein should to answer loc. cit. 82 L.Ed. allegations paragraph, contained court said: question plaintiffs whether “The substance of his action stated in hearing proper had a be determined. question his answer whether or- represented independent conclusion, der hearing At the next before this as follows: present, majority constituted as reached the conclusion “ secretary ‘My question answer to would plaintiffs definitely gave very my independ- which the that them, entered law entitled ent conclusion as based on decree the findings of dismissing the bills. v. United the men in the Bureau of Animal Indus- States, D.C., F.Supp. 380, try. say, try put I will it as ac- curately possible, represented my was unable that it writer concur conclu- Animal proposed by the Bureau findings findings independent own of reactions to Industry”. Animal Indus- the men in the Bureau try.’ hearing was as the holding alterations, he ‘ac- rate “Save certain defective, the Secre- fatally the order of ” cepted findings.’ tary establish An effort to was invalid. rejected, rehearing case for opinion, language following district court remanded to the loc.cit. loc.cit. conformity with the further’proceedings in especial pertinency to opinion rendered. inquiry us: July ex- condition requirements are not On of fairness “The peti- interlocutory stay granted to taking or consideration hausted *4 validity of parts evidence, concluding tioners in their attack but extend to the 1933, 14, Secretary’s beginning the rate procedure to the order well as as June payment this into steps. court ordered the intermediate and petitioners between of the difference proceeding before “The answer that the petitioners the rates established tariffs of adversary char- was not of an 1933, published prior 14, and to June acter, upon complaint but was it was not rates fixed order lower general inquiry, initiated as a is futile. deposit was latter date. proceed- regard mere to the form of the litiga- ditioned to await the outcome of the ing respects, In ignores realities. substantial and all deposits made pending. These tion then through acting the Government be- ^District with the clerk Industry the Bureau Animal partment of the De- 1, 1937, 1933, July 22, November tween aggregated proceeding prosecuting $586,093.32. sum of On this against agencies. of the market owners rate sched- new advanced last named date proceeding ele- had all essential the litigation, petitioners became effective ules for ments with the Gov- of contested al., et Morgan, v. consent. United States ernment and its counsel on the one side and 1129, 999, 773, 1, 82 L.Ed. 304 U.S. 58 S.Ct. appellants counsel on the and their 1938, 31, finally May decided a say was not other. proceeding that this idle to 7, 1938, in this court defendants filed staying June reality against appellants in motion an the distribu- a for very when the existence of their monies, the Sec- alleging tion of these put jeopardy. Upon rates for retary reopened proceeding had depended their services the owners their 1933, 14, which the invalid order of June livelihood, proceeding and the attacked entered; spot. them at by vital This well shown 1933, 14, as of determine an June that, merits, appellants the fact reasonably charged be what rates petitioners are tary’s contending here that under the Secre- services ren- clients many agencies, of these al- dered, thereby assuring said monies though not found to be inefficient waste- or law. disposed equity of with would be ful, will left with deficits rea- instead of petitioners to this filedanswer June compensation services, sonable will for their motion, petition for restitution compelled go out of business. 2, 1938, impounded July them of the funds. And responds to this the Government defendants’ motion and court overruled if a result rates some res- petitioners’ application for sustained agencies may continue, be unable to because D.C., On F.Supp. 24 214. titution. See through existing competition too there are appeal, Court reversed the many, that fact will not invalidate the or- court, holding of this latter order in der. While dealing arewe not now payments arresting excess under sched- merits, breadth of the ule this court acted as a court discretion rulings applicable our respon- equity, “charged both with the such proceeding, Tagg Bros. & Moorhead sibility protecting the fund and of dis- States, v. United law, according to posing of it free 524; States, Acker v. United duty, use discharge of that broad 1257,places S.Ct. 80 L.Ed. powers in a exercise of its strong light necessity discretion of maintain- unjust un- essentials of to avoid an and fair such manner hear- ing, right Morgan, with the appellants United States v. to have lawful result”. 795, 801, opportunity to know the claims against advanced them as shown the reopened preme In proceeding action, and, effect, brings Secre- Court’s tary, upon 20, 1939, appeal an opinion. public has entered a new from it bar order holding charges insists, despite ruling, the rates and He period during July impounded collected between that this takenly places mis- (which fund he 1, 1937, unjust and November be- $700,000) rightfully longs which, prescribing, farmers, says, unreasonable and he reasonable, deprived finely- the identical rates “by some scribed in the invalid drawn judicial procedure.” order of rules of A respondents prays emphasizes motion of the court letter money fixed that this require petitioners cause, shippers show be distributed to the any, why livestock, of the interpreted constitute order does not he notwithstanding appropriate contrary. for the distribution of Court’s decree to basis By publicly said funds In registry now the letter de- this court. he announced his response prejudgment to this motion a termination and filed of what praying return result of respond- proceeding motion should be. future ents herein deposited His and moneys reopening be denied and that the order was dated June registry step as the first court be presented 'petitioners. distributed support proceed- former invalidated prayer ings, many specifications fact, or- of error conclusions and irregularity der as tentative assigned. findings. permitted . *5 filing exceptions thereto, designated of and first, perhaps foremost, and of the same to additional evi- examiner hear these, is the charge that the market dence. himself Thereafter denied were hearing required by fair By argument heard oral March 1939. in the due clause and were denied an government no additional evidence impartial tribunal as the of the facts. trier clear, introduced. It is from the record petitioners’ overruled motion presented object of to this prejudice and and of bias filed Au- affidavit reopened through the ing, this hear- gust 12, 1938, suppress motion to and their procure pro nunc validation Report and Recommendations of the fatally tunc defective of order June February 17, trial examiner filed 1939. conception was that His opinion An examination Supreme in found error previous appeals Court in dis- prior proceeding which led to the in- 14, 1933, closes that the order of the order was the failure of that validation permit June Secretary had been held findings invalid because argument a full a full and fair hearing had not been ac- understanding conclusions with and corded, petitioners, because the presented. Secre- the issues tary had not addressed himself to the evi- however, made findings, had been These upon dence and that evidence had con- by representatives Animal of the Bureau of scientiously reached the conclusions deemed Industry, found to be active who had been them, but, justify contrary, this con- government prosecutors for the in own, accepted, adopted and as upon been made and had litigation, tested in subordinates the Bureau of made Animal Secretary had not which the evidence to Industry pros- who were the real contemplated in the himself sense addressed proceedings against of these ecutors Moreover, rates and by the Act. agencies proceed- owners of these market — prescribed in the invalidated charges very ings in “the existence of their which for future observ- prescribed were rates agencies port put jeopardy”: sup- were in upon ex- ance, actual were not based charge prejudice, of bias perience. case, which, alleged in consists of an conviction, preconceived concerning By the is- of Section the terms involved, petitioners put .211, provided that Act, in sue evidence 7 U.S.C.A. § may, hear after fair York full and letter of the to the New the ing, prescribe what will be determine impounded regard in to this Times fund. charges just and reasonable rates or May sent on which This letter was words, other thereafter observed. In the date was between be decree, order, necessarily invalidating his a forecast and and such an order Court’s opinion solely handing down the conditions ex denying judged of its is to be in rehearing. Secretary isting. In this letter the That has been declared impatient displays disapproval valid, findings, made Su- and neither nor be cattle, appears to ling result purported this, rate point vulnerable entitled proceedings, are discredited in the defined us. structure. Cattle class inquiry now before weight up, as make cattle yearling equity determine order is a cattle says, large proportion of the impounded to whom the fund should sug- He City market. distributed, upon the Kansas depends ceived decision prompted gests the conditions a determination of reasonableness November the modification order experience light those actual rates suddenly being into come did not or- prophecy. instead of The invalidated date, assume it was but reasonable findings- upon der and the so-called prior there- they had obtained sometime proper based standing have no cattle tariff in the to, charges made and the inquiry. secretary of this bases fact recognition prima facie reopening the case assumed the burden which are determining rates money dis- would be June proposed posed firmed equity “in accordance with during period for the entire law”. He introduced río new impounded. which the funds support burden, of this him- contented reduction clearly suggests that the severe dependence self in- previous cattle yearling rates for valid order and findings as a He was basis. 1933, especially the order apparently perfunctory that a “the forecasts that justification, without argument on this basis rehabilitate subject criticism Department may be prescribed the rates as of Of arbitrary manner”. acted having us, We have before as had the Secre “it statement that great is the significance tary only proof that the rates be- never been possible, it has is now reasonable, were not but also June that at and reasonable fore, to determine reopened time of this beyond ques- prove them to and to *6 possible “it is now it has as never been be ; that, “in effect such determination tion” fore, to determine and rates the for have been as basis must made prove and to them beyond ques such to be of November 1937”. modification tion”. gathered information This from Secretary (record 98) that testifies a “Memorandum Secretary” pre for the this He made he read memorandum. sented to him (just June in his did not act changes findings and in week before the 1939), order of June way upon any in reliance this memorandum by Kitchen, C. A. Associate Chief of the proceeding. in with connection this Industry. Bureau of Animal This memo treatment received accords with the attitude randum, lengthy incorpora while too for who, original at by petitioners the both in this writing tion contains matter of cru consistently one, in hearing, later and importance, cial and is itself of sufficient to upon virtually the matters urged the same condemn the order under consideration as examiner, but without suc- and equity in basis the of the for distribution per- ignored The order made cess. the impounded fund. Kitchen, suggestions tinent Mr. who the time has taken over administra- briefly We refer the some of Stockyards Act and tion Packers important statements. He he recites that formerly in Ani- the Bureau 311, which proposed the in has read order Docket Industry. questions mal certain and have occurred to which submits the for him judgment In our the Kitchen memoran- A first consideration. observation is that says, by Secretary, dum, ignored as he proposed modify order does not “the alone, certainly in standing connection your in order out rates set June proof by petitioners, offers of 1933”, although “the structure rates proves conclusively that no effort was in order of your in and the actual reasonableness ascertain open may order to criticism in proposed during period, al- impounding rates particulars”. certain possible to was then determine though it experience actual instead of from especially thinks the them He rate for so- forecast. On the con- hypothesis and yearling from brought cattle called obj fact that ect of secretary. confirms trary states the' attention depart- in and of those connection reduction made the in this originated, these rates by whom ment was most applying year- to validate pronounced the rates upon exceptions In our tained invalid to Master’s order of June by- port. judgment the chief accountant fact one case also it establishes the er- Stockyards fixed Division of preconceived reason and Packers authority Department Agriculture con- the was asked conception roneous preparation of upon Stock- whether he ferred him assisted the Packers yards petition- proceeding. Act, City Secretary denied to order in Kansas course, object, the due show required by was to hearing ers the fair order were impartial findings tribunal whom fact an clause before formulated, already having been held that the fact. the trier of any legal sense were not framed in dis to remember that We are Counsel for himself. charge responsibilities as our duties and interposed “objection to this government particular question enjoined to use Equity, a Court of we are questions all other equi broad exercise discretion reason that tenor for the of the same to avoid powers in manner table an such speaks for itself” unjust or unlawful result. questions ger- “are therefore that proceeding”. But issue mane to regard seems to case, (298 in the first permission to obtain aid of assistants 1288) department, analyze” who by “sift and “the expressly held that examiner, evidence taken to confer are procedure such cases recitals of his right accept him the without more question not conclusive on statutory requirements whether subordinates, adopt the views of such obeyed”. are, cases, this, in most as in the ac- prosecutors against agen- tual It is to be remembered that must, however, hearing cies. There be a challenged ground, and order analyz- Sifting in ing a substantial sense. others, among petitioners did not have enough. give the others is not “To fair before an unbiased hearing, substance of a tribunal, duly appraised and with evidence purpose evi- making determinations trier statutory considered dence, the deter- the officer who makes reports facts. In such case the and testi appraise the consider minations must privileged. mony We subordinates are This, the justifies them.” affecting communications here no do, appears did sovereign government its the interest capacity, following statement here. testimony question wheth but rather the *7 typical in he exam- manner which of the deprived be er are to of testimony appraised tendered the ined livelihood, as the by petitioners support proposed in of their says, by which lacks es the exceptions findings and their Mas- the process. sential features due my report: that ter’s “It recollection examiner) establishing in (the Brooke’s conclusion The burden exists of Mr. only rates, testimony not such hearing Mr. was not but Bates’ reasonable schedule any disposition testimony equitable impounded felt his the of the that he —-that validity object to his great should be attached fund. In fact the latter was the real judg- reopened proceeding. testimony. accepted Mr. the This burden Brooke’s of rests primarily upon Secretary. This respect”. inment that strictly regarded pro longer can be as a Brooke, generally So it that Mr. was Stockyards ceeding under the Packers Secretary appraised testimony of- Act, provides after inves The second judgment fered. Secretary “may tigation hearing appeal based the fact that a fair prescribe what will be the determine and proper hearing was denied both because charge, or or just and reasonable rate denied, and because evidence argument charges, observed to be rates thereafter properly appraised. At had not this * * * regula what in such claimed hearing correction final * * * practice will is or be tion or merely and unsubstantial. Be- perfunctory (a) followed”. Sec. Stat. facts and examiner circumstances fore the thereafter (a). this To 166. 7 U.S.C.A. from § were excluded relevant reason end, original proceeding, a in an relief was and no obtained consideration upon dependable forecast, exist based Secretary. able exceptions taken before the by facts, may indulged. be arbitrary ing and established rulings of examiner however, case, present cases, uniformly and were sus- many record, entire An future. Whatever examination prescribing testimony applied including be not to order result is offered, hearing, and exhibits at the future transactions. reopened proceeding, no convinces that the be, should object by aimed at to be invalid resulting than that more reopening Secretary in his stated 14, 1933, the re- satisfies order of June moneys be dis- will assure “to adminis- quirements due law”, be ef- posed equity of with Packers and of this tration section by equity free a court of fected attempt Stockyards was made Act. No duty discre- discharge of its use broad “to applicable rates ascertain the reasonable powers such tion in the exercise of its period impounding to the business of unjust an or unlawful manner to avoid standpoint of available actual ex- be de- question then result”. The but, perience, contrary, the sole impounded whom should this termined is to money purpose object patent to validate was the distributed, the answer to the invalid order of the rates question depends upon the reasonable- with a in accordance June charged impound- ness of the rates Packers conceived construction of alone, ing period hypothetical rates —not Stockyards Act. can be but actual rates so far such prior the order existence dealing with a determined. We 14, 1933, legal rates until June past stage trans- of livestock commission by valid order. found to be unreasonable We actions; told Chief of and we are present think that Stockyards the Packers and tion, Administra- invalidated, order be also formerly Associate Chief of litigation prolonged should be ended Industry, Animal Bureau of restitution to the impounded prior week this order it issuance of which resulted from monies possible then “as it has never been was before, provisions commissions earned just and to determine force, and not ef- rates then in since beyond prove them to be rates question”. fectively challenged. opportunity modifica- concedes the reasonableness these rates determine “beyond question” might tion order Jun.e tendered heralded as part admission error of Animal Chief of the Bureau Associate Department. anyAt rate the himself, ignored Industry but the offer was Secretary refused himself to avail purpose obvious in conflict with the data, pur- the .exact rates reaffirme.d widely “might be heralded avoiding what porting been established to have part admission of error as an 14, 1933,although invalidated prescribing rates im- Department”, providently warned his said subordinate that there the invalid order forecast point in that was a vulnerable rate struc- might expose proposed ture which of the Clerk this court The records criticism. 1,870,000 separate approximately show counsel, by government As stated *8 funds, impounded arising out items availing instead himself of transactions, multitude of with a of a correspondingly actually determining the data available for large shippers. number of rates; upon chose rather act deposits of such are com- amount record, hypothetical casting the old petitioners significance ship- the paratively small producing the- burden of evi- petitioners they pers, involved while to dence, lodged in the records of the de- agencies. very their market existence of partment, Secretary tendered to complained conformity will be entered A decree before the order use conclusions. with these Throughout reopened proceed- issued. ' Secretary appraisal ing the relied expedition with due submit Counsel of evidence his subordinates. That was the consideration of the court such hearing, former true at the and the re- they may conclusions findings and deem invalid, sulting order was-held largely appropriate. -Nothing on ground. was added by. government, old record rulings and the same REEVES, Judge District (concurring). although were-made attention of- very Secretary clear critically called er- I concur in the and able Judge opinion VALKENBURGH, VAN rors the rate structure. 55á presiding judge, doing but in to as Agriculture so desire issued by Secretary express following: 14, 1933, on upon said be served agencies findings as the tentative At the trial cases this court fact, conclusion the Secre- and order of erred in striking out an averment in the tary of Agriculture proceeding; petitions several to the effect that Secretary Agriculture personally “It had not is further ordered that said market considered and promulgated what he re- be and hereby given are garded as thirty days his reasonable commission (30) rates. from the date of service We prescribed by sustained exceptions the rates the hereof within file Secretary Agriculture. Supreme fact, said and tentative conclusion order, Court reversed the cases. v. in accordance with the rules of States, 468, 906, practice adopted United 298 U.S. Agri- S.Ct. culture, cases, procedure L.Ed. 1288. in such governing ap- and within which to make trial, Upon second after the averments propriate objections motions or re- restored, again we found spect to further proceedings this case.” testimony support
was substantial Pursuant prescribed by to this order reasonableness of the rates was “re- opened” Secretary. However, ap- additional testimony the second sub- petitioners, mitted Supreme govern- peal, found ment. granted hearing had full contemplated by the Packers and Stock- opinion yards challenged Act and invalid the ported 1, 304 U.S. 58 S.Ct. 82 L. 14, order of 1129, 25, April Ed. was rendered enjoined previously the enforce- We opinion was in that court held that question ment of the order until the of its Secretary Agriculture had not given full validity its merits. could be determined on hearing required and fair law. by the last time When the case was reversed May a letter from On Secre- of States, (Morgan v. United page tary appeared on the editorial 1129), 82 L.Ed. this court 58 S.Ct. Times wherein he used the fol- New York the funds im- ordered distribution of “Actually, language: lowing (referring previous pounded by order to the several Court) the ef- agents plaintiffs. An marketing who are City give to the Kansas commis- fect is to from this and the appeal was taken $700,000 attorneys and their men sion again our order. Supreme Court reversed belongs impounded money rightfully Morgan, 307 U.S. v. United States to the farmers.” 795, L.Ed. 1211. S.Ct. trial, counsel for the hearing In this decision the court held In this last ques- again sundry raised should be made was distribution is contended them that the tions. proper function of the right and within the find the rates in force Secretary failed to investigate, Agriculture as of the date unreasonable page page (307 U.S. “prescribed” rates, so Secretary shall de- 1211) “if sup- not reasonable and not themselves are by aid of that the rates exacted termine in the case. ported testimony More- by the registry, paid into its over, contended that it is page excessive,” (307 U.S. then con- again failed to give 1211) “his de- page and that he did not ex- templated law termination, supported by but, evidence and disinterestedness, judicial ercise a conducted contrary, made in a there- clearly biased *9 process, due formity with the statute and to hear the case. These disqualified fore appropriate basis for action will considered: briefly afford the bewill making distribution district court in the the by of the contentions made 1. One custody.” of the fund its prescribed rates were the petitioners is that court was handed decision of the invalid the by those found identical with Immediately May 1939. down on based and that same were Secretary Agriculture of thereafter and on evidence opinion evidence upon hearing, opened case for further predicated of forecast the nature prior things ordered as follows: among other years of experience period over the said order of ‘Proceedings, immediately preceding that the “It is also ordered Fact, order’, Findings of Conclusion and 1933. June intense and more greater force marketing period by covered Since the activity. does seem peti- It elapsed had is the contention of accu- have the trial could been examiner experience of the tioners that the actual he found report when available, rate in tentative easily companies but not only was prescribed Secre- that the rates Secretary, and new ascertainable with the carefully penny tary check experience would had been order. in the invalidated studied, rates prescribed have the utter revealed would by the inadequacy prescribed rates of the operat- agencies market There were n of the Secretary and the reasonableness stockyards conformed ing at the which rates force. Secretary. prescribed the schedules in- agencies became appeared from the evidence the Evidence rejected was Secretary volved in financial difficulties relied same evidence ground that it did presented original hearing, by Secretary at him appear definitely that such financial reference to not he made but scant new rates. experience company the actual of difficulties arose dur- compe- period excess would that this evidence commission rates seem was tent, impounded. purpose showing at for the were least agencies experiences what were Cardozo, Mr. Gas. West Ohio Justice operations, in their to the end that Ohio, Co. v. Public Utilities Commission might have as to informed loc. cit. part played his rates have expressed proper financial agencies. difficulties those rule that a should saying prophesy place experience: over given actual question fair 3. On the of a and full gives survey “A forecast us rate. A hearing, appeared gives prefer To another. the forecast to disposed original pre- to enforce the arbitrary survey is an judgment.” scribed him. His reopening that, although at confirmed that time duty In this case it was undoubtedly experience actual the market disregard- opinion of the agencies supplanted properly all evidence and forecasts formed prophecies predictions evi- original basis for his order and to adhere Secretary notified the market dence. The completely entirely to the evidence proceedings, findings agencies that “the experience which revealed the actual fact, and order conclusion agencies market time the during the excess upon them 1933,” again be served impounded. commissions collected and were fact, findings conclu- “as the tentative far as market were agencies So cerned, Agricul- sion and order the income used by them was proceeding.” in this ture Secretary. cisely by the practical effect such rates in their plaintiffs, petitioners, were then operations business would have disclosed file given a limited time “within opposite. their reasonableness or the exceptions said tentative order,” fact, etc. conclusion Furthermore, according undis- testimony, puted as well facts admitted hearing pre- derived from a A schedule government, changes radical in busi- viously condemned operations due to ness extrinsic factors again put as violative due immediately following effected were challenge to the forward aas promulgation of the rates of offer find with it. fault Prior to that time marketing had. inquiry a re- petitioners to direct the into largely by ship- received livestock carload dependable inquiry liable and field ments, subsequent to use time unavailing. To refuse to consider com- automobile truck strong became a disregard and to petent evidence the ordi- Consignments potent factor. experience logic and common nary rules of smaller in much therefore lots litigant harmful to a as if a required to devote same salesmen judicial quasi clothed au- tribunal disposal time, energy skill for hear the thority refused to consignment given as had been a small all. shipments. carload previously to attitude 4. The *10 printed in letter necessarily by his New These business variations disclosed Times, “Actually, ef- great follows: wrought changes in York inevitably City the Kansas commis- operations required give agency a fect 556 this, attorneys said $700,000 sion impounded In court further doing men 720, 318, loc. cit. cit. money rightfully belongs (295 loc. U.S. 55 S.Ct. this, the farmers.” do 1451): addition to “The claimants 79 L.Ed. show- trial there was frankness on the sustain the burden is theirs lack of part disposition reasonable government master set up and a that the that the other They to make disclosure of all the facts. schedule. must show full Commission, schedule, up the one set It is my view order of the is unreasonable Secretary is unreasonable and that was 317, without cit. support. Furthermore, Even before loc evidentiary 295 U.S. 1451, peti- Secretary grant 720, the tioners to the did not 79 zone significantly: “There is a and fair contem- court said plated law, disposed judgment reasonableness and he was too of within large.” strongly favor one side in the con- is at troversy. Therefore, opinion the last according Court, 183, longer Supreme 5. However S. no 59 proceeding 1211, can- an administrative under matter Packers Ct. 83 L.Ed. Stockyards prescribe and question now schedule of Act, simply but it is a not retroactive rates, may challenge as to the reason- good con- equity but impounded should The court science have the funds. ableness of the rates in force. said, cit. grounds On technical loc. the order S.Ct. loc. cit. invalidated, is now L.Ed. 1211: 14, 1933was “A which, as but this fact it is con- before the notwithstanding pending seen, tended meritorious have he is to determine order was and we free sup- facts considered reasonableness of the rates.” duly port it. charged actually This relates to rates equitable issue the On does not marketing agencies. again tenders as a schedule are unrea- follow the rates collected upon based forecast derived from rates dif- sonable because the finds a past experience, reasonable, particularly and asks that be ferent schedule prevail showing predicated made to over facts actual since the schedule is radically admittedly experience substantially assumption facts conditions altered circumstances. existing. longer are not thus derived Clearly dependable rejected as and should be in- OTIS, Judge (dissenting). District applicable to the facts and as unreasonable regret I I cannot with the concur light of the actual facts. my colleagues reached clusions Moreover, did not in- clarity by them with their usual sented and force. order a new opinion its last tend trial, dis- I have reluctant to been simply court should that this de- but I that if did seemed to me sent. equities parties. termine able, whose agree associates so with quick accomplished by have been could judicial much experience in the service is petition- experience to the reference own, probably my quite I greater than period 14, 1933, to over the No- ers pos- wrong. I not found have should sible, necessity vember without however, endeavor, despite my all speculative evidence. using matter, my col- go along this one im- so leagues. Line involved are The case Atlantic Coast R. Co. v. issues huge, that Florida, portant, 79 L.Ed. the amount at stake so sitting on the pre judge every decisive facts here I conceive that referring owes it to au court sented. according to parties Com of the Interstate Commerce contribute thority to the best what shall understanding identical circum practically mission final decision. It U.S. loc. cit. 55 S.Ct. loc. (295 stances be the motivated, although I am not said: “The Com 1451), cit. repara it, by power to be consis- give a desire was without conscious of
mission
injustice
past,
well known
(I
remember
tion for
tent.
“Consistency
of small
inquire
saying:
whether in
is a virtue
power to
without
not
justice
opinions
report minds.”)
I wrote
two earlier
and to
had been done
make
766; D.C.,
D.C., F.Supp.
accordingly.”
court.
*11
compulsion
if,
helpless.
held is
under
court
F.Supp.
first the
And
380.1
law,
agency,
reviewing
affirms the
(identically
court
that
order
proclaimed
it
that
review) was
is
to the world
the United
now
order as
under
same
that
District
or the Circuit Court
only by
States
sustained not
substantial evidence
Appeals
that
or
Court of
weight
the evidence
but'
approved
endorsed and
petitioners’ United States has
justification
for
It
un-
agency
a what
has
is not
been denied
done.
contention
natural
look
dis-
opinion,
judges
hearing.”
“full
In the second
consequence.
favor
such
given to the
on
a
special
attention
Secretary’s procedure,
it
question of the
compare
superficial
is
How
such
Secretary’s order
again
arbitrary
possibly
dictatorial—
even
—
(identically
that now
same order as
power
fact-finding
fact-finding
with the
only by
review)
sustained
under
Constantly
power
jury.
jury
of a
weight
substantial evidence but
supervising
judge.
fhe
control
parties had been
the evidence and that the
ir-
judge
evidence that
excludes
Judge VAN
given
hearing.”
a
“full
relevant, immaterial,
incompe-
or otherwise
concurred, hesitatingly,
VALKENBURGH
up
tent. He
the case.
reviews
sums
opin-
opinion.
the second
From
jury
inspires
the hour of its
procedural
ion
on
issue
he dissented
high
functioning
final
with the
ideals
joined
only.
Judge
REEVES
has
may
And
justice
he
set aside
and truth.
I
left
Judge
VALKENBURGH.
VAN
am
jury
whatever
has returned.
verdict
position
all
and alone
abandoned
my colleagues
I think
my
have
been able
mind
There comes
once defended.
accept
philosophy
seen in anoth-
days
new
past
opening
long
out
school
aspect.
hearing”
To
er
them
“full
ballad:
sometime famous
sentence
a
requires
which the law
an administrative
whence
boy
burning deck
stood on
“The
agency
parties
hearing
a
give the
means
fled.”
all but him had
comparable
important
all
details
My colleagues,
think,
I
not been
have
hearing,
judicial
hearing
historic
accept
philosophy—
able to
a certain new
dignified atmosphere
solemn and
of a court
it,
it,
recognize
nor
I
accept
although
do
room,
testimony,
where
received under
incorporates
and I
Congress
to it when
bow
evidence,
present-
time-tried rules of
philosophy
into a valid statute —a
impar-
orally
judge,
to an
trained
ed
agency
exalts the administrative
cor-
may
(the parties
him re-
judge
tial
respondingly
powers
lessens
courts
prejudice
for
if he is
moved
bias
justice.
Congress
said
impartial),
judge
to a
deemed not
judicial review, findings
of fact made
arguments of
counsel
opposing
hears the
by evidence,
agency,
supported
such an
decides.the matters in issue.
and thereafter
judicial
shall be
And
conclusive.
so the
cry, my colleagues
(and
think
far
is a
largely
review becomes
significance.
without
I)
that kind of
hearing
think
substance,
so
looks,
to form.
contemplated by,
overwhelming weight
of the evidence
Stockyards
testimony
twenty
example,
Packers
(the
witnesses) may
support
finding;
Act,
seq.,
one
a minimum of sub-
7 U.S.C.A.
et
where the
§
(the testimony
single
testimony
(who
stantial evidence
of a
an examiner
taken
may support
opposite
witness)
finding. may
in fact
also be
active counsel
agency,
parties),
If the administrative
actuated
contending
the de-
where
pique
prejudice
or
interest or
ciding power
class
is vested
an official who
witness,
of the number of
consideration
where
votes
never
the ultimate
sees
party,” finds
gained
against
practicably even
authority
“the
cannot
read the
evidence,
weight
reviewing
compelled
(although
per
1 I wrote also
curiam
so created
be returned if the
fund
F.Supp.
215) announcing
(D.C.,
held invalid.”
judgment
thought
of this
which was re
This court
should abide
its
pledged
Court,
in 307
word. The
versed
how-
ever,
1211. This court had held
the Sec
decided
original
retary’s
valid.
Su
fund
preme
a definite under-
had been collected
in
on review said it was
disposed
equita-
standing
compelled
should be
court had
a de
valid. This
might
require.
principles
money by
posit
ble
“on the
understanding
assurance
*12
558
say
proceedings
it,
to
satisfactory
so),
including
has
there is no
done
where
before
* *
*
dislodge supported by evidence,
way
will have
under Heaven
prejudiced agency
appropriate
will
a biased and
and secure the
its action
basis for
another, and where the decision of the be able to make
order of
its
distribution
agency,
every
functioning,
198,
so
accordingly.”
as to
issue
59
307 U.S. loc. cit.
fact,
by any
supported
(how-
803,
if
evidence
cit.
S.Ct. loc.
83 L.Ed.
ever
weight
evidence),
defiant of the
duty
is now
of this court then
is made
conclusive as
command of
(1)
ascertain:
Whether the
despot. My colleagues
it
a
find
difficult to “redetermination”,
his “final order
medley
“due
law”
such a
see
proceedings pending
(307
him”
U.S.
I
of ritual and form and shadow.
and
honor
198,
803, 83 L.Ed.
loc. cit.
59
loc. cit.
S.Ct.
respect
steadfastness.
them
evidence;
1211),
supported
(2) wheth-
Scope
Duty
of District
hearing”;
and.Nature
Court. er
“full
it
made after a
fund,
or-
(3)
the final
with
to distribute the
duty
scope
nature of
1. The
distribution, if
der
as the
basis
quite
made
clear
of this court supporting evidence for
the order
a
opinion
Stone when this
of Mr. Justice
hearing.”
“full
Of course
the burden
high
case last was before
tribunal.
proof
on
those
attack the Secre-
795,
183,
ance.
beam deflected.
best, the
tendered in this connec-
evidence
Again, weights
al-
evidence.”
stantial
shadowy,
hearsay
tion
on
was
based
ternately
Now
deposited in each balance.
speculation.
co-
It fell
of that
far short
that side
again is deflected on
the beam
necessary
gency that
would have
Per-
“weight
evidence.”
is the
where
into thin air what
transmute
airy
deposited
is
in a
haps only an
feather
hitherto held was “substantial evidence.”
any effect
light
It
balance.
is too
have
—a
“scintilla of
mere
evidence.”
Requirement
Hearing”
of “Full
Met.
presentation of this case to
On the first
court twice has held
Just
presentation
by
we
again
supported
the second
us and
on
substan-
order was
deposited
petitioners
of the
evidence,
saw the evidence
tial
so
twice has
respondents
that of the
parties
balance and
gave
one
that “full hear-
index showed that
requires. Certainly
other. The
ing”
the law
the show-
only
respondents’ balance not
hearing”
stronger
evidence in
ing
“full
is much
now.
evidence,”
was
but also that the
“substantial
surprising.
should that
Nor
Since
“weight
evidence” was there. Now
been taken
last
has
nothing has been
presentation
on
third
shed”
the “wood
balance,
trust,
away
respondents’
noth-
(he
object,
taken
from
will
I
I
not
if
choose
away
petitioners’
from
been taken
figure
background).
has
from our common rural
peti-
A
chastened,
has been added
balance.
little
came out
an understand-
Perhaps that
little that
balance.
tioners’
desire thereafter
to walk
chalk
able
change
enough
is
strange
has been added
not
line.
It would
if he had
evidence” from
side
“weight
profited
My
colleagues,
lesson.
certainly
however,
But
mere addition
other.
now
front and
who
attack
both
something
in one balance cannot have rear,
hip
smite the
changing
effect of
the nature of what is
thigh, think he
wandered from
true
balance from what
“sub- path
given
the other
was
even when he
had been
stantial
to a mere “scintilla” or
compass.
evidence”
chart and
nothing
all.
at
Why
Supreme Court hold in the
did the
1,
my
(304
I
colleagues
58
do not
would second
U.S.
S.Ct.
doubt
999,
agree
elementary
773,
1129) that
at
with such
truths.
once
view,
rightly,
given
hearing”?
understand
had not
a “full
es
sup-
that he did not do
that what was “substantial evidence”
sence of the
petitioners
no
porting
hearings
the Secre-
so because he accorded
the earlier
tary’s
(competent
opportunity “to
the claims
prophesy
know
only prophesy
available)
party
opposing
and to meet them.”
perhaps when
18,
776,
19, 58
all value —ceases
be 304
loc.
S.Ct. loc. cit.
and that
loses
U.S.
cit.
(1)
specific
contradictory
There
evidence” —when