the secretary's findings of fact in arriving at such a tolerance "shall be conclusive if in accordance with law." Our objection does not lie to the provisions for an advisory committee consisting of five members of "distinguished scientific attainment ", nor to the secretary, but it does lie to making the findings of fact of the secretary, and in effect the findings of fact of a majority of the committee conclusive, as provided in paragraph (h).

Senator COPELAND. Now, Mr. Fraser, when you come to section 10, you are entering a different field. These other matters are purely economic, but you are coming now to a point where an added poisonous or deleterious substance would impair the health.

Mr. FRASER. Right.

Senator COPELAND. So you will have to have some strong argument to make any change in this particular section.

Mr. FRASER. I cannot conceive how you could make findings of fact conclusive on a scientific question.

Senator COPELAND. Well, you are speaking about section 22.

Mr. FRASER. If you are going to prepare a tolerance on a finding of fact by the secretary and the committee, and it is penal

Senator COPELAND. No; I am speaking now of section 10, not 22section 10.

Mr. FRASER. Yes; all right. You are fixing a tolerance for the industry with which the industry must comply; and remember, as we said before, the problem of growing fruit is a bigger fight today than ever with the bugs; and there are certain things which are either going to spray or surrender.

Senator COPELAND. Well, the bill makes provision for that in line 10.

Mr. FRASER. Right.

Senator COPELAND. "Taking into account the extent to which the use of such substance is required in the production of such food."

Mr. FRASER. Right; but we feel that their findings should only be prima facie. They should be subject to review by a court of competent jurisdiction.

Senator COPELAND. Well, now this section 10, you wouldn't be so distressed about if section 22 omitted the last sentence of subsection (h)?

Mr. FRASER. That is paragraph (h)?

Senator COPELAND. Paragraph (h), page 37.

Mr. FRASER. If you put in there "in formulating regulations, findings shall be prima facie in court", which they are now. That is where we are all right, but I will have something more on section 23. I cannot see how you can propose to make a finding conclusive. I don't know whether I ought to take the time of the committee, but we have had eminent chemists who had to revise their opinions very quickly after they made a deduction on what they regarded as sound facts. The facts exist, but they suddenly had to move on their findings. We are moving today; we are not dead. We are not static. Senator COPELAND. Well, the whole argument, however, as regards section 23, from your standpoint, would disappear if section (h) were modified?

Mr. FRASER. Well, I want some changes in section 23. I will give you the proposal when I come to it.

Senator COPELAND. I think I ought to call your attention to a reference which has been to this finding of fact, where, in a recent case, Mr. Chief Justice Hughes said, and I quote, "An award not supported by evidence in the record is not in accordance with law." That is Cole v. The Benson, 285 United States 42, page 48.

Mr. FRASER. Can you carry it any further than that particular case? Most of those things are only applicable to the case under consideration. They are not of general application.

Senator COPELAND. I think we well understand your position as regards this section (h), and if it should be accepted by the committee we will then wish to know what you have to say about the court review.

Mr. FRASER. Section 23 does not give a right of review or appeal on the merits. I had one illustration in support of the danger of making a thing conclusive, which, if you will desire, I will pass over and leave in the record, since you are short of time, but I would like you to consider it.

The CHAIRMAN. Mr. Fraser, allow me to suggest that these legal questions have been gone into very thoroughly by others. I remember one argument by a very eminent lawyer on the question.

Mr. FRASER. I know they have been covered.

The CHAIRMAN. In order to save time, suppose you put what you have got to state in the record, to save time.

Mr. FRASER. I will just give you my suggestions as to changes. I will omit some of the material. I will file it so that you can add it in at the proper places.

There is just one point I want to develop before I leave it. Under the present law the Government is required to prove its case as to the quantity of adulteration or alleged poison found, which is or may be injurious to health. Under the proposed law no such proof is necessary.

Senator HEBERT. Where is that provision?

Mr. FRASER. I say under the present law the requirement is that they prove it. But in the case of a tolerance, in the fixing of à tolerance, it won't be necessary at all. For instance, if you fixed 0.014 grains of lead as the tolerance, all you have to do is to take a sample, make a finding that it is in excess of 0.014, the regulation which was proposed last April, and if it is in excess, you need not give the man a sample. The court may give him one, but there is no right, as there is in the present regulation. In the present law, you have a regulation requiring that a sample be given to him. In this proposed law, you may give him one, show that the amount of lead present is in excess of the tolerance, fine him, and the case is closed. Under the present law, he has a right to review all the facts before a jury, if he wishes, but under this act the findings are conclusive before he begins.

Senator HEBERT. It is such a simple matter to ascertain the fact. Why should there be any investigation of it?

Mr. FRASER. How?

Senator HEBERT. It is such a simple matter to ascertain the fact that there is or is not an excess.

Mr. FRASER. Not so simple.

Senator HEBERT. You mean if the one who produces the fruit continues that there is the excess?

Mr. FRASER. He should have access to the sample to see if that is so. Chemical analysts fail. They are men. Their work should be subject to review.

Senator HEBERT. There is no doubt he should have access to the sample.

Mr. FRASER. And they should be allowed to bring in competent witnesses to show whether there is or there is not an excess.

Senator HEBERT. Whether there is or is not an excess?

Mr. FRASER. To show whether there is or there is not an excess of tolerance. Surely, they wouldn't deny that.

Senator HEBERT. Isn't that done now?

Mr. FRAZER. Yes; that is allowed today, but it would not be under this.

Senator HEBERT. Under what provision?

Mr. FRASER. Under the whole provision of the bill, because the findings are conclusive and the Secretary of Agriculture issues a tolerance, and then if the case was found in excess of the tolerance, they are guilty.

22?

Senator HEBERT. Have you in mind paragraph (h) now of section

Mr. FRASER. I was taking the whole procedure of the bill in regard to the way you act in one of our own cases. That is just what you provided for in this bill. We do not regard that as sound law.

Senator HEBERT. I know. I do not read that paragraph (h) as others have read it. I thought I made myself quite clear yesterday on it. Paragraph (h) merely goes to the extent of formulating regulations.

Mr. FRASER. Right.

Senator HEBERT. And once the regulations are formulated who else is going to pass upon the facts? The Secretary must ascertain the facts before he can formulate regulations. Now, in the application of those regulations, that is something else. When he tries to apply the regulations which he formulates, if under this bill they be found to be unreasonable or arbitrary, or capricious or not in accordance with law, then the petitioner is entitled to the injunction. That is full relief.

Mr. FRASER. Why limit it? Why not leave it all open? Why not let the whole case be open to review? Then we would be feeling better. Why limit it with those words?

Senator HEBERT. Limit what?

Mr. FRASER. The functions of the district court.

Senator HEBERT. Mr. Frazer, you have got full remedy.

Mr. FRASER. We don't so regard it.

Senator HEBERT. I can't understand that you view this different from what I do, but that is my view of it, and yet I see no objection to eliminating section (h), as I have heard it discussed here, as far as that goes, but I am not convinced that it interferes with the right of anyone.

Mr. FRASER. We do not think under 23, you would be allowed to go to the merits of the case again.

Senator HEBERT. I do not know how you can say it any broader than that it is not in accordance with law. I do not know how much broader you can make it. If the regulation is not in accordance with law, that opens up the whole field, and it is still broader, it has other contingencies, if it is unreasonable. Unreasonable how? Unreasonable under the particular circumstances of the case that is being considered, of course. If it is arbitrary, if it is done under conditions where a man cannot comply with it in reason, then that is arbitrary and would not be permitted to be enforced.

Mr. FRASER. Let me give you my understanding of what that applies to. If the committee had held a hearing, if the Secretary has gone through the proper process of law in the preparatory work to his regulations, that is final, that is all that means.

Senator HEBERT. Mr. Frazer, you do not read that the way I do. Let me repeat once again, that is merely in the formulation of the regulations.

Mr. FRASER. Right.

Senator HEBERT. Not in the enforcement of them, because the enforcement of them is open to review by the courts. If that were not so, then you would negative the effect of the provision in section 23, because section 23, in line 15 provides: "If it is shown that the regulation is unreasonable."

And, another thing, if it is shown, how can it be shown? How can the court find that a regulation is unreasonable, that it is arbitrary, unless it have the facts before it?

Of course, the court will want all the facts before it will render a decision, and that must be so.

Mr. FRASER. I hope your interpretation stands, Senator. If we can be sure that that would stand, we would feel a lot better.

Senator HEBERT. I may be wrong about that, but I am trying to give effect to all of the verbiage that is there, in my interpretation. I repeat, it may be the part of wisdom to eliminate that paragraph (h), then there will be no question.

Senator OVERTON. You want the court vested with jurisdiction to inquire into the fact whether or not there has been a violation of the regulation, is that what you would wish?

Mr. FRASER. We feel that the Government should be required to prove its case, and prove it by competent evidence, that in the case of tolerance, the amount of alleged to be found is or may be injurious to health. We would like that. The defendant should then be allowed to have his day in court and prove, if he can, by competent evidence, that the Government's case is not well founded.

We furthermore feel that a right of appeal on the merits should be preserved because that is axiomatic; it is an axiomatic principle of legal procedure.

Senator COPELAND. I will agree with you to this extent, that section 23 gives the court jurisdiction to inquire only as to whether the regulation itself is unreasonable, arbitrary, capricious, and not in accordance with law, but not whether or not there has been a violation of the regulation.

Mr. FRASER. Well, I hope that might be.

(The following brief submitted by R. G. Phillips and Samuel Fraser :)

While Senate bill no. 2800 is an improvement over the original bill, Senate no. 1944, yet neither Senate bill no. 2000, which replaced S. 1944, nor S. 2800, which replaced S. 2000, are satisfactory from our standpoint. We were opposed to many provisions in both S. 1922 and S. 200. We are also opposed to certain provisions of S. 2800.

First, we, therefore, urge your consideration of the following points in connection with Senate bill no. 2800.

First, we wish to make it clear that we are and always have taken a firm position in favor of protecting the public health. Neither have we any objections to proper laws safeguarding the public health, nor to the fixing of tolerances nor the establishment of regulations, providing such provisions, tolerances, and regulations are properly and not arbitrarily or autocratically established and providing further that a full review by the courts on the merits is safeguarded. One of our objections to various provisions of this proposed act is that any permit highly arbitrary and autocratic action. to be taken by a small group or committee from whose actions and findings only a limited right of court review is granted, and furthere, that under the proposed bill the Government is largely, if not entirely, relieved from the burden of proof in any action brought or seizures made. This is contrary to the principles underlying the present Food and Drugs Act and we feel is contrary to sound legal principles.

Section 3 (a) (1) embraces constituent poisons or deleterious substances for which no tolerance can be fixed under section 22, paragraph (b) food containing a constituent poison or deleterious substance could be absolutely prohibited without any reference to a tolerance.

Under section 22, paragraph (b), coupled with paragraph (d) of the same section, relating to the powers of the secretary and the committee on public health, together with paragraph (h) of section 22, making the findings of fact of the secretary and the committee conclusive, extensive arbitrary and autocratic power is lodged with the secretary, since court review allowed by section 23 is very limited in scope.

We are opposed to such arbitrary methods which may extend to total prohibition and without any tolerance being fixed as a guide to industry. We are further opposed, even though a tolerance may be provided for constituent poisonous or deleterious substances, unless a more adequate right of review by the courts is provided than by section 23, as we shall hereafter point out.

Section 3 (a) (2): This subparagraph deals with added poisonous or added deleterious substances in excess of tolerances which may be prescribed by regulations under section 10.

This subparagraph, coupled with section 10 and section 22, paragraphs (b), (d), and (h), clothe the secretary and the committee on public health with the same arbitrary and autocratic powers without adequate right of court review under section 23.

Section 3, paragraph (a) (4), line 14: Strike out the words "may have and substitute therefor the word "has ", so that paragraph (4) will read: “(4) If it has been prepared, packed, or held under insanitary conditions whereby it has become contaminated with filth."