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AMENDMENTS TO PUBLIC UTILITIES ACT OF THE DISTRICT OF COLUMBIA CONCERNING COURT PROCEDURE

TUESDAY, FEBRUARY 18, 1930

UNITED STATES SENATE,

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D. C.

The committee met, pursuant to call, at 3 o'clock p. m., in the committee room, Capitol Building, Senator Arthur Capper (chairman) presiding.

Present: Senators Capper (chairman), Blaine, Glass, Blease, Robsion, Baird, and Kean.

The CHAIRMAN. We are here to consider Senate bill 3558, which was introduced a week ago at the request of the Public Utilities Commission.

(Senate bill No. 3558 is here printed in full as follows:)

[S. 3558, Seventy-first Congress, second session]

A BILL To amend section 8 of the act making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June 30, 1914, and for other purposes, approved March 4, 1913

Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, That paragraphs 64, 65, 66, 67, and 68 of section 8 of the act making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June 30, 1914, and for other purposes, approved March 4, 1913 (Thirty-seventh United States Statutes), are amended to read as follows:

The

"PAR. 64. That any public utility or any person or corporation affected by an order or decision of the commission fixing any rate, toll, charge, schedule, joint rate, regulation, requirement, act, service, or other thing complained of (not including a valuation) may commence an action or proceeding in the Supreme Court of the District of Columbia to review any such order or decision. answer of the commission in any such action or proceeding shall be filed within thirty days from the date upon which such proceeding is commenced. In any such action or proceeding the findings of the commission as to the facts upon which such order or decision is based shall be conclusive, if such findings are supported by evidence and if such order or decision is not confiscatory.

"PAR. 65. That all such proceedings shall have precedence over any civil cause of a different nature pending in such court, and the Supreme Court of the District of Columbia shall always be deemed open for the trial thereof and the same shall be tried and determined in the same manner as other actions and proceedings in equity in such court, except as herein provided. The judgment and decree of the court shall be final, except that an appeal therefrom may be taken to the Court of Appeals of the District of Columbia and the judgment and decree on such appeal shall be subject to review by the Supreme Court of the United States upon certiorari as provided in section 240 of the Judicial Code. "The commission may suspend the decision or order appealed from for such period as it may deem fair and reasonable under the circumstances, but no appeal, unless the court or the commission shall so order, shall operate to stay any order or decision of the commission. Neither the commission, nor any of its members, officers, agents, or employees shall be taxed with any costs, or be

required to give any supersedas, bond, or security for costs or damages on any appeal, or be liable to suit for any judgment or decree for damage, loss, or injury claimed to have been sustained by any public utility or any person or corporation affected by an order or decision of the commission, or required in any case to make any deposit for costs, or to pay for any service to the clerk of any court, or to the marshal of the United States.

"PAR. 66. That the method of review of the orders and decisions of the commission provided in paragraphs 64 and 65 shall be exclusive; and, upon such review, such court shall have the power to affirm, or, if the decision or order of the commission is not in accordance with law, to modify or to reverse such order or decision in the manner following:

"(1) If, upon the trial of such action or proceeding, evidence shall be introduced which is found by the court to be different from that offered upon the hearing before the commission, or additional thereto, the court, before proceeding to render judgment unless the parties to such action or proceeding stipulate in writing to the contrary, shall transmit a copy of such evidence to the commission and shall stay further proceedings in said action for fifteen days from the date of such transmission.

“(2) Upon the receipt of such evidence the commission shall consider the same and may modify or reverse its order or decision relating to such rate, toll, charge, schedule, joint rate, regulation, requirement, act, service, or other thing complained of (not including a valuation) in said action or proceeding, and shall report its action thereon to said court within ten days from the receipt of such evidence.

"PAR. 67. If the commission shall reverse its order or decision complained of, the action or proceeding shall be dismissed; if it shall modify the same, such modified order or decision shall take the place of the original order or decision complained of, and judgment shall be rendered thereon as though made by the commission in the first instance. If the original order or decision shall not be reversed or modified by the commission judgment shall be rendered upon such original order.

"PAR. 68. That every action or proceeding to modify or reverse an order or decision of the commission shall be commenced within sixty days after the entry of such order or decision."

The CHAIRMAN. I believe it probably would be well for General Patrick, or Mr. Hartman, to make a short statement as to what is contemplated in this proposed legislation, and as to why it is asked at this time.

STATEMENT OF HARLEIGH HARTMAN, REPRESENTING THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA

Mr. HARTMAN. The bill merely provides that on appeal from a decision of the Public Utilities Commission, except in cases involving a constitutional question, the courts shall not have the right to review a question of fact or to substitute its judgment for that of the commission.

The old section 66 of the public utilities act with respect to injunctions is left out in the process of the amendment. The principal effect is that valuation case could not be reviewed by the court until it had reached the stage where confiscation could be alleged. That is one point of disagreement between the commission and the carriers, and the other is with respect to the review of a question of fact. I think that states the issues.

Senator BLAINE. Mr. Hartman, I call your attention to this, and probably you will want to modify your statement slightly:

In any such action or proceeding the findings of the commission as to the facts upon which such order or decision is based shall be conclusive, if such findings are supported by evidence,

*

Mr. HARTMAN. That is true. The question then could be raised by the court at any time as to whether there was evidence to support the finding of the commission, and in the absence of evidence to support it, the finding of fact could be reversed in any case whether it involved a constitutional question or not.

Senator BLAINE. That is analogous to a proceeding by a trial court, acting without a jury, making a finding of fact. When appealed to the Supreme Court the Supreme Court will decline to review that finding of fact if the finding is supported by evidence. It is analogous to that proposition?

Mr. HARTMAN. That is correct. It makes the appeal practically the same as carrying the case up on a writ of certiorari.

Senator BLEASE. Do you think it a good idea to let the courts pass on the facts?

Mr. HARTMAN. I haven't the slightest objection to the court passing on the finding of fact, but the situation in the District of Columbia is that you have more than one Public Utility Commission. Under the decision in the Potomac Electric case the Supreme Court of the District of Columbia is made practically another public utility commission, to substitute its judgment for that of the commission, if it sees fit.

The amendment as drafted, as Senator Blaine has pointed out, permits the court to pass on a question of fact to the extent of saying whether or not there was evidence to support it. If there was evidence to support it it prevents the court from substituting its judgment as to that evidence for the judgment of the commission.

Senator BLEASE. Who is going to pass judgment on whether that evidence is sufficient or not?

Mr. HARTMAN. The court.

Senator BLEASE. I don't like that.

Senator BLAINE. It don't go as far as you would like it to go? Senator BLEASE. I don't like the court to pass on the facts. Leave that for the jury. The court ought to pass on the law. It ought not to have anything to do with the facts in any case.

Senator BLAINE. Under this bill the courts simply determine whether or not the facts on which the commission bases its decisionwhether or not the decision rendered by the commission is supported by evidence. There may be a case where the evidence does not support the findings. There may be an entire absence of evidence. The court does not pass upon that evidence. It does not determine what the facts are. But if it finds there is no evidence to support the finding of the commission, then the case is referred back to the commission to find the facts. It is still left to the commission to find the facts. Senator KEAN. The point being that in valuations the whole thing is so technical, with engineers' testimony and that sort of thing, it takes so long it is almost impossible for a jury trial.

Senator BLEASE. But I say the court should not have anything to do with the functions of a jury.

Senator KEAN. That is what we are trying to avoid. We are trying to avoid, except in cases where the commission hears evidence, and the evidence is decidedly one way, and the commission is prejudiced or something of that kind, and the commission decides the other way. Then it can be reviewed by the court on that evidence. is right, isn't it?

That

Senator BLAINE. But it goes back to the commission for determination.

Senator BLEASE. I can't believe in that. I believe a court is a court of law, and they should not be allowed to pass on the facts as a jury, or even to judge of the facts, and if we are going to have a commission and the commission is composed of honorable men, they should pass on the facts. Now, if you are going to let the court reverse them, you are making the court a commission.

Senator KEAN. There is something in that.

Senator BLEASE. I don't believe in government by the courts. I shall not object to the bill, though, if the utility commission wants to put themselves in that position. But I don't like it.

Senator ROвSION. Isn't that true of all commissions? That the court has a right to review?

Senator BLEASE. Not in my State.

Senator ROBSION. I mean in the Federal Government.

Senator BLEASE. Of course, in my State they have only the right to judge the law. They haven't the right to touch the facts.

Senator KEAN. All they have to do is look at the testimony, and if it is clearly stated they can pass on it. I know a case in point, where a man that claimed to represent a public utility was very much prejudiced against the public utility commission, and they went for him personally and he went back at them and called them horse thieves and various things, and the consequence was that every decision they made was violently against the evidence and against everything, so that the court absolutely threw the case out.

Senator BLEASE. Didn't you ever get rid of him?

Senator KEAN. You may have had a way to get rid of him.

Senator BLEASE. Down in my country we have a way to get rid of that kind of cattle.

The CHAIRMAN. Now, then; we will be glad to give an opportunity to those who may want to discuss or oppose this matter.

STATEMENT OF GEORGE P. HOOVER, REPRESENTING THE CHESAPEAKE & POTOMAC TELEPHONE CO. AND THE WASHINGTON RAPID TRANSIT CO.

Mr. HOOVER. Mr. Chairman, I am engaged in the practice of law in the District of Columbia. I represent the Chesapeake & Potomac Telephone Co. and the Washington Rapid Transit Co., corporations which will be subject to this legislation if enacted into law. Mr. Dozier A. DeVane, who is general counsel of the telephone company, has been considering this matter and appeared before the committee at the time when this particular bill was a contemplated resolution relating to the merged street railways. Mr. DeVane has been called out of the city, left before the notice of this hearing was received by us, and for that reason he is not able to appear here to-day.

The CHAIRMAN. Mr. Hoover, I have a statement here which I take it was prepared with some care by Mr. DeVane, in which he discusses the proposed legislation, and if you wish, I will have this placed in the record here.

Mr. HOOVER. I would like very much to have that done. At the appropriate place I was going to suggest that be made a part of the record, because it discusses questions raised by General Patrick in a

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