Evening star., 1938-05-02

contents of such a report.
To the layman it may seem as II
something technical or rigidly legal
istic is involved. But the idea back
of the Supreme Court opinion, which,
by the way, had the approval of all
!. the justices who heard the case except
one-former Senator Blacks that a
trial examiner is really sort of trial
judge or lower court. When he makes
his report the Supreme Court feels
the opposing sides should have a
chance to read it and file exceptions
and refute arguments before the re-
port goes higher to the board or COM
mission itself The situation is tanta-
mount to that which would occur if
after a trial in any lower court. the
Judge kept his opinion secret and then
spassed it on to a higher court where
ruling was issued without giving
anybody a chance to file brief or
exceptions to the lower courts de-
cision.
New Trials Seen Likely.
Naturally the Labor Board does not
tant cases which are pending, so it is
willing to reopen them to allow exam
liners reports to be duly noted and ex-
ceptions filed. Whether this will
change in these very cases the boards
final orders remain to be seen, and
It may well be that certain cases will
have to be tried over again altogether.
For there Is often something more
involved than failure to give out a
copy Of the examiners report. Some
OF the parties to Labor Board cases
have complained bitterly that the
examiner was often in cahoots with
the prosecuting attorney and that he
overruled objections arbitrarily or con-
sented to the issuance of subpoenas in
ways that favored the Labor Board
~side as against defendant company.
What has happened is really epochal
In the evolution of administrative law
in America. Up to now many of the
quasi-judicial commissions, like the
Interstate Commerce Commission, for
instance, have been fair and really
judicial in their handling of cases
from the time the trial examiner be-
gins to take testimony till the final
ruling is issued. But uniformity Of
procedure among these commissions
has by no means been compelled, even
though 1t has often been advocated
by members of the bar.
There is no doubt that these quasi
judicial commissions have come to
stay, and they are bound, under
system of centralized control of most
everything nowadays, to acquire more
and more importance. 1t can readily
be seen how vital they are, because
these commissions are empowered by
Congress to report findings of fact"
and their own findings are specifically
deemed by the statute to be con-
elusive "if supported by substantial
evidence"
What is a fact? A quasi judicial
commission is not bound by the rules
of evidence such as courts require, so
fact" may be enveloped in hearsay
testimony, gossip or anything else
which it suits a trial examiner to
admit into the record. Some of the
radicals have for years, even under
Republican administrations, insisted
that the Federal commissions should
have more and more power to deter
mine the facts" and that the courts
on appeal should have less and less
authority to inquire into the facts"
as a matter of review.
Dangerous Practice
! One Of the most dangerous things
that has grown up is the habit among
Federal commissions of naming trial
examiners from their own employees.
These examiners collaborate often