Evening star., 1940-04-29


just emanated from a United States
court for the western district OF
Missouri.
Strangely enough, the opinion
which was written by Judge Mer-
rill E. Otis, is a dissent which up
holds Secretary Wallace's ruling and
declares that the wording of the
statute in question is such that the
courts now must affirm rulings even
though they know there is a denial
of justice in them.
What Judge Otis says is an eX-
planation, incidentally, of why so
many courts are upholding the Ma
tional Labor Relations Board these
days. According to Judge Otis, the
courts really have no alternative,
The language of the law is so bind
ing that it is what the commits
sions and boards and bureaus de-
clare to be finding of fact" that
the courts must uphold. Judge Otis,
who has been on the bench since
1925, in sense twits his two COL
leagues who overruled Secretary
Wallace's position recently in the
F. o. Morgan sheep commission case,
which was turned back by the Su-
preme Court of the United States
to the district court for retrial.
Calls it Form"
Says Judge Otis:
my colleagues, I think, have not
been able to accept certain new
philosophy-nor do 1 accept it, al
though I recognize it, and I bow to
1t when Congress incorporates it
into a valid statute-a philosophy
that exalts the administrative agen-
cy and correspondingly lessons the
powers of courts of justice. Con-
gress has said that, on judicial re-
view, findings of fact made by such
an agency, if supported by evidence,
shall be conclusive. And so the
judicial review becomes largely
without significance. 1t looks not
to substance, but to form.
THE overwhelming weight of the
evidence-the testimony of 20 wit
nesses-may support one finding. a
minimum of substantial evidence
The testimony of single witness
may support the opposite finding.
If the administrative agency, actu-
ated by pique or prejudice or lass
interest or a consideration Of the
number Of votes to be gained by
the party finds against the weight
of the evidence the reviewing court
is helpless.
And If, under compulsion of law,
the reviewing court affirms the
agency, it is proclaimed to the
world that the United States Dis
trict Court or the Circuit Court of
Appeals or the Supreme Court of
the United States has Endorsed and
approved what the agency has done,
1t is not unnatural that judges
should look with disfavor on such a
consequence.
Compared to a Court.
How superficial it is to compare
such an arbitrary, possibly even die
tatorial, fact-flnding power with the
fact-finding power of a jury. The
jury is constantly under the super
vising control of the judge. The
judge excludes evidence that is ir-
relevant. immaterial or otherwise
incompetent. He reviews and sums
up the case. He inspires the Jury at
the hour of its final functioning
with the high ideals of justice and
truth. And he may set aside what
ever verdict the jury has returned
Il think my colleagues have not
been able to accept the new philos-
ophy seen in another aspect. To
them the full hearing which the
law requires an administrative
agency to give the parties means a
hearing comparable in all impor-
tant details to the historic judicial
hearing, a hearing in the solemn
and dignified atmosphere of a court
room, where the testimony received
under the time tried rules of evi-
dence is presented orally to trained
judge, to an impartial judge (the
parties may have him removed for
bias and prejudice if he is deemed
not impartiaD, to judge who hears
the arguments of opposing counsel
and thereafter decides the issue.
The Contrast.
"1t is a far cry, my colleagues
think (and so think y from that
kind Of hearing to such a hearing
as that contemplated by, for ex-
ample, the Packers and Stock Yards