Evening star., 1939-08-13
D. {. Appeals Court
Exceeds lis Power,
Petition Charges
lnterferes With Functions
Of Government, Says
Solicitor General


Charging the Court of Appeals
of the District is interfering illegally
In the administrative functions OF
government, the United States So
licitor General has appealed to the
Supreme Court to reverse lower
court ruling on the line OF demarca-
ton between judicial and adminis-
trative authority.
The petition alleged the appel
late court has raised the possibility
that administrative agencies may
have to reckon with persons who
gain exemption from governing
statutes because they have OBJ
tained reversals, on unrelated is
sues, of earlier administrative de-
terminat1ons.
tiorari was filed in the case of the
Pottsville Pa) Broadcasting Co.,
which had been denied broadcasting
facilities. In subsequent legal pro-
ceedings the Court Of Appeals d.
rected the commission to consider
the application alone, after the
commission had decided it should
reconsider it IN connection with
other applications in the same area
which were pending before 1t.
Powers Exceeded, He Feels.
The Solicitor General, in his pc
tition, expressed the belief that the
decision exceeded the powers of the
lower court, that it is an unwar-
ranted invasion of the administra-
tive field, and that it overrides the
basic purpose of the licensing re-
quirements OF the communications
act. However, he said it seems evl-
dent. IN any event, that principles
OF the gravity of those resulting
from the Pottsville decision should
not be introduced or established
without a full consideration by the
Supreme Court. He pointed out
the Pottsville decision seems to
fly In the face of decisions OF this
(the Supreme Court court which
led to and which recognized that
separation of judicial and admins
trative powers
The lower court, the petition con-
tended, has undertaken to act as
superior and revising agency"
and added that the choice between
conflicting applications, the pref
erence that as general rule should
be given the earlier applicant, ana
the desirability of reopenlng pro-
ceedings for further evidence are
matters peculiarly administrative
IN their nature.
The Supreme Court was told that
under the decision of the Court of
Appeals, If the denial of one appli-
cation on given ground has been
reversed by the Court of Appeals,
the applicant receives a preferred
status so that the commission would
be powerless were it to determine
another applicant to be more desir-
able in the public interest. The
Communications Act, it was pointed
out, requires that the permit be
granted to the best qualified appli-
cant, not to the first to file his ap-
plication. It was explained that the
licensing provisions are designed to
obtain the best use of the limited
broadcasting facilities, and not to re-
gard the victor in a race of dill
gence.
Gravity of Decision.
ut Is unnecessary to emphasize
the gravity of the decision below
so far as 1t bears on the admin.
lstratlon OF the Communications
Act" the solicitor generals petition
said. Plainly the ALLEGATION of
radio facilities is no less important
nor less in need of the expert knowl-
edge and understanding of the COM
mission merely because an appeal
has been taken to the Court of
Appeals and the case remanded to
the commission.
80 far as the decision is of more
general application, because of the
close similarity of the statutes pro-
viding for judicial review of ad-
ministrative orders, it raises dis
turbing possibilities that many ad-
ministrative agencies would have to
reckon with class of persons who
have gained qualified exemption
from the governing statute because.
on an unrelated issue, they had
secured reversal of an earlier ad-
ministrative determination"
The high court was told that this
is no isolated case involving the
commission and the Court of Ap-
peals. The petition held it to be
unfortunate that there is sharp
difference of opinion between the
Court of Appeals and the commits
sion, but that the orderly admins
tration Of the Communications Act
seems to require that the controversy
be terminated by decision of the
high court. The lower court deci-
sion was held to constitute q grave
departure from the settled prin-
ciples controlling the judicial re-
view of administrative agencies and
the issuance of writs OF mandamus.