Evening star., 1938-04-28


Hughes, has laid $s
down rules of the @
most far-reaching
tmportanc e to
employers and employees in labor rela-
tions. to competitors in business and
to individuals in all lines of endeavor
who may come before commissions,
boards or tribunals in connection with
the enforcement of the many laws of
the United States.
For several years, these commissions,
created by Congress, have become
known as quasi judicial" Sometimes
they are independent commissions or
boards Of three or five members in
agencies separate from the large
executive departments, and sometimes
they are interdepartmental boards
charged by law with judicial power to
decide certain questions of fact or
rates or charges in regulated busi-
nesses
Arbitrary Tactics Charged.
The one complaint which the legal
profession has been making, and lay
men, too, for that matter, is that
these commissions do not conduct
themselves like courts and often carry
on their proceedings in high handed
and arbitrary manner. STEPPED as are
Americans in the traditions Of fair
ness in court of law, it has been a.
matter of keen disappointment that,
under an American system of govern
npnt Nft1rlalS 70 ho
fundamentals as to allow what are
known as trial eXaminers"-really
Judges-to consult with prosecuting
attorneys Of the Government itself
in developing cases against the citizen.
Or else it happened that the commits
slons would themselves hire both the
examiners and the attorneys, making
them fellow employees of the same
commission, so that the citizen would
be confronted with two men acting to-
gether who would assume the roles of
judge, prosecutor and jury
Perhaps the bitterest complaint has
been heard under the Wagner Act,
where the examiners played fast and
loose with customary legal procedure,
and where consultations between ex-
amlners and attorneys for the board
nave been the rule rather than the
exception. This is the complaint at
least, heard from attorneys trying
their cases on behalf of citizens whose
very businesses are often threatened
by decisions that are of the most
costly character to comply with.
Ruled on WalIace's Hearing.
The Chief Justice did not, of course. !
mention the Labor Board or the Fed |
eral Trade Commission or the Securi- |
ties and Exchange Commission, but
merely proceeding before the Secre- |
tary of Agriculture. Yet it is fair to |
assume that if the Supreme Court |
defines full and fair hearing" be- |
fore cabinet officer as requiring GER
tain obligations on the part of the
Government, this would be even more |
applicable to commission which |
obviously performs judicial functions. |
The words of the Chief Justice are
so significant of what may be expected |
to be the rule of the future that they I
are worth quoting in part as they |
deal with hearings before the Federal |
Government. He says:
The vast expansion of this field !
OF administrative regulation in re- |
sponse to the pressure of social needs |
Is made possible under our system by !
adherence to the basic principles that |
the Legislature shall appropriately de-
termlne the standards of administra- |
tive action and that in administrative |
proceedings of quasi-judicial char
acter the liberty and property of the |
citizen shall be protected by the rudi-
mentary requirements of fair play. |
These demand fair and open hear
1ng'-essential alike to the legal valid
1ty of the administrative regulation |
and to the maintenance of public con-
f1dence in the value and soundness |
OF this important governmental proc
ess. Such hearing has been de-
scribed as an memorable safe |
guard ssh
Cites Unfair Tactics.
Congress in requiring full hear |
ing had regard to judicial standards
not in any technical sense but with |
respect to those fundamental require
ments Of fairness which are of the
essence Of due process in a proceeding
OF judicial nature. II in an equity |
cause special master or the trial
Judge permitted the plaintiffs attor-
ney to formulate the findings upon
the evidence, conferred ex parte with |
the plaintiffs attorney regarding them |
and then adopted his proposals with
out ahording an opportunity to his
opponent to know their contents and
present objections, there would be no
hesitation In setting aside the report |
or decree as having been made with
out fair hearing. The requirements |
OF fairness are not exhausted in the |
taking or consideration of evidence |
but extend to the concluding part of
the procedure as well as to the begin
ming and intermediate steps.
The maintenance Of proper stand |
ards on the part of administrative |
agencies in the performance of their |
quasi-judicial functions is of the high
est Importance and in no way cripples
or embarrasses the exercise of their |
appropriate authority. On the con-
trary, it Is in their manifest interest |
For, as we said at the outset, If these |
multiplying agencies deemed to be
necessary in our complex society are
TO serve the purposes for which they
are created and endowed with vast |
powers, they must accredit themselves
by acting in accordance with the
cherished judicial tradition embodying
the basic concepts Of fair play"
The requirement that an examin-
er's report should be submitted so that
MANY a Rn0s