sion. It will also replace appeals as of right from the circuit court of appeals to the Supreme Court in these cases, by review on certiorari.

The jurisdiction conferred upon the circuit court of appeals by section 2 of the bill covers only a part of the orders now reviewable by various proceedings, some of which are enumerated in the discussion of H. R. 2271. H. R. 1468 does not apply to any proceeding brought by the United States or the Commission to enforce an order of the Commission or to enforce compliance with the Interstate Commerce Act. These will continue to fall within district court jurisdiction as at present. Nor does it relate to actions between private parties to enforce various liabilities created by the Interstate Commerce Act, nor to criminal proceedings under the act, nor to suits for forfeitures or penalties.

The theory of the bill is that it will not be used in proceedings where a record or hearing has not been made before the Commission, since the circuit courts of appeals are not equipped to make such records. The jurisdiction of the latter type of orders will therefore continue to be in the district courts, to be heard either by one or three judges as the circumstances require. An example of the type of proceeding not covered by the bill is an emergency order permitting carriers to arrange protective service to property in shipment against heat or cold, pursuant to Interstate Commerce Act, section 1 (15), which requires prompt action, and renders hearing inappropriate because of delay.

By its terms, the bill applies only to suits (1) to enjoin, (2) to set aside, or (3) to suspend, in whole or in part, orders of the Interstate Commerce or Maritime Commissions (as appropriate) which are final, and which are of the following

nature:

(1) Orders directing a carrier to construct, maintain, and operate switch connections with lateral or branch-line railroads or private sidetracks (Interstate Commerce Act, sec. 1 (9)).

(2) Rules, regulations, and practices with respect to car service by carriers or railroads (Interstate Commerce Act, sec. 1 (14) (a)).

(3) Action with respect to applications for certificates of convenience and necessity for line extension or new line construction, of railroads, for operation of railroads, for acquisition or operation of any railroads or extensions thereof or for engaging in transportation over advanced or extended line (Interstate Commerce Act, sec. 1 (18) (19) (20)).

(4) Orders upon complaint or at the initiative of the ICC to authorize or require rail carriers to provide safe and adequate facilities for performing car service.

(5) Orders by the ICC of its initiative or on application to assure to shippers of wheat, cotton, or other farm commodities for export the granting of export rates on the same principles as are applicable to industrial products for export (Interstate Commerce Act, sec. 3 (1a)).

(6) Orders of the ICC on application of carriers or of its own initiative approving and authorizing the pooling of freight and the division of earnings of carriers if asserted to by the carriers concerned. (Interstate Commerce Act, sec. 5 (1)). (7) Orders modifying precontracts and confirmations relating to pooling or division of traffic service or earnings to which a water carrier is a party (Interstate Commerce Act, sec. 5 (1)).

(8) Action of the ICC in regard to applications for consolidations or mergers of carriers, or the acquisition, lease, or contract to operate properties of another carrier by one or more carriers, or acquisition of control of another carrier by one or more carriers, or acquisition of carriers by noncarriers, or acquisition by one carrier of trackage rights or joint ownership or use of lines of another carrier (Interstate Commerce Act, sec. 5 (2) (4)).

(9) Appropriate order relating to persons not carriers, who acquire control of carriers (Interstate Commerce Act, sec. 5 (3)).

(10) Orders requiring persons found unlawfully to have acquired control of or management of two or more carriers to take action to prevent continuation of the violation (Interstate Commerce Act, sec. 5 (7)).

(11) Orders supplemental to orders described in 6, 7, 8, and 10 above.

(12) Action by the ICC on application or of its own initiative, determining facts or issuing orders relating to ownership, leasing, operation, or control by carriers, of water carriers with which the carrier does or may compete (Interstate Commerce Act, sec. 5 (14), (15), (16)).

(13) Directions of the ICC to rail or water carriers to make physical connections between rail lines and docks, and related directions (Interstate Commerce Act, sec. 6 (11) (a)).

(14) Proportional rates established by the ICC for traffic to and from ports (Interstate Commerce Act, sec. 6 (11) (b)).

(15) Orders of the ICC to require rail carriers to enter into arrangements with steamship lines operating from United States ports, to handle through business from interior points in United States to foreign countries (Interstate Commerce Act, sec. 6 (12)).

(16) Orders issued by ICC after investigation of complaints against rail carriers for violations of provisions of Interstate Commerce Act relating to them, or after similar investigation of carriers on its own initiation (Interstate Commerce Act, sec. 13 (2), (3), and (4)).

(17) Orders of ICC relating to equalization of rates for interstate and intrastate commerce to prevent discrimination against the former (Interstate Commerce Act, sec. 13 (4)).

(18) Rules and regulations for joint hearings between ICC and State ratemaking bodies (Interstate Commerce Act, sec. 13 (3)).

(19) Orders of the ICC after finding rail carriers' rates to be in violation of the act, prescribing just rates and ordering the violations to cease (Interstate Commerce Act, sec. 15 (1)).

(20) Orders of the ICC establishing through routes, joint classifications, joint rates applicable to rail carriers, or carriers by rail and by water (Interstate Commerce Act, sec. 15 (3)).

(21) Orders of ICC after finding that divisions of joint rates for transport of passengers or property are unjust, unreasonable, unequitable, preferential, or prejudicial as between the joint carriers, prescribing an equitable, just, and reasonable division (Interstate Commerce Act, sec. 15 (6)).

(22) Orders of ICC suspending new rates, classifications, or regulations pending decision as to its justification, or orders as to such rates, or orders regarding acccounting and refund of proposed rates pending decision (Interstate Commerce Act, sec. 15 (7)).

(23) Orders of ICC determining reasonable charges to be paid by carriers to owners of property transported by rail for services rendered by them on instrumentalities furnished by them, connected with the transportation. (Interstate Commerce Act, sec. 15 (13)).

(24) Orders and supplemental orders relating to the issue of securities or assumption of liability on securities of others by carriers (Interstate Commerce Act, sec. 20a (2) (3) (6) (7)).

(25) Orders after hearing or investigation, to motor vehicle carriers relating to their service, operation, etc., under Motor Carriers Act, (Interstate Commerce Act, secs. 204 (c), 203 (b)).

(26) Action on applications by motor carriers for certificates of public convenience and necessity (Interstate Commerce Act, secs. 206, 207, 208).

(27) Action by ICC on applica.ion for permits for contract carriers by motor vehicle (Interstate Commerce Act, sec. 209).

(28) Action by ICC on applications for broker's license to sell or arrange for transportation by motor carriers (Interstate Commerce Act, sec. 211).

(29) Action by ICC in relation to amendment, revocation, transfer, suspension, change of certificates, permits, or licenses issued under Motor Carriers Act (Interstate Commerce Act, sec. 212 (a)).

(30) Orders relating to issuance of securities of Motor Carriers Act controlling corporations (Interstate Commerce Act, sec. 214).

(31) Orders prescribing lawful rates chargeable by Motor Carriers (Interstate Commerce Act, sec. 216 (e)).

(32) Orders prescribing divisions of joint rates charged by motor carriers or water carriers and rail or water carriers (Interstate Commerce Act, sec. 216 (f)). (33) Orders by Commission in reference to new rates, classifications, or practices proposed to be made effective by motor carriers (Interstate Commerce Act, sec. 216 (g)).

(34) Orders by Commission in relation to rates or changes of relevant rules, regulations, or practices, of contract carriers by motor vehicle found to be contrary to national transportation policy and prescribing justifiable rates (Interstate Commerce Act, sec. 218 (b)).

(35) Orders by ICC in relation to new or reduced charges for transportation by motor carriers (Interstate Commerce Act, sec. 218 (c)).

(36) Determinations of allowances to be made to shippers by motor carriers for services rendered by shippers on instrumentalities furnished by them in connection with transportation of property (Interstate Commerce Act, sec. 225).

(37) Orders by the ICC to compel water carriers to comply with provisions of Interstate Commerce Act relating to them (Interstate Commerce Act, sec. 304 (e)).

(38) Determinations by ICC of charges, rates, or fares that may be observed by water carriers after finding that existing rates are in violation of Interstate Commerce Act, sec. 307 (b).

(39) Determinations by ICC of through routes, joint classifications, rates, fares, etc., applicable to carriers by water or by them and carriers by rail (Interstate Commerce Act, sec. 307 (d) (b)).

(40) Action by ICC on proposed new rates, regulations, and practices to be applied by water carriers (Interstate Commerce Act, sec. 307 (g) (b)).

(41) Action by ICC on rates, rules, regulations, or practices of contract carriers by water after finding rates, etc., in effect are unjustifiable under Interstate Commerce Act sec. 307 (h) (F).

(42) Action by ICC on schedules or charges for new services or reduced charges filed by contract water carriers (Interstate Commerce Act, sec. 307 (i) (f)).

(43) Action by ICC on application for certificates of public convenience and necessity by water carriers or by contract water carriers for permits (Interstate Commerce Act, sec. 309).

(44) Determinations by ICC of charges to be paid by water carriers for services rendered in connection with shipment by shipper or instrumentalities used in shipment, furnished by shipper (Interstate Commerce Act, sec. 314).

(45) Orders by ICC to compel compliance by freight forwarders with provisions of Interstate Commerce Act applicable to them (Interstate Commerce Act, sec. 304 (f)).

(46) Determinations by Interstate Commerce Commission of lawful rates, charges, classifications, or practices to be observed by freight forwarder after finding that existing rates, etc., are in violation of Interstate Commerce Act (Interstate Commerce Act, sec. 406 (b)).

(47) Determinations by ICC in relation to new rates, classifications, regulations, or practices filed with Commission by freight forwarders (Interstate Commerce Act, sec. 406 (e)).

(48) Determinations of ICC in relation to conflicts between rates for interstate and intrastate shipments by freight forwarders and establishment of rates that may be charged by them in order to prevent discrimination against interstate commerce (Interstate Commerce Act, sec. 406 (f)).

(49) Action by ICC on application of freight forwarders for permits or in suspending them or transferring them, or permitting service of forwarders to be withdrawn (Interstate Commerce Act, sec. 403 (a)-(i) inclusive).

(50) Action by ICC in relation to issuance of permits to operate as freight forwarders to persons or firms who engaged in manufacture or sale such as ordinarily to require services of freight forwarder orders and to prevent violations in this regard (Interstate Commerce Act, sec. 411 (b) (d)).

(51) Determinations by ICC of allowances to be made by freight forwarders to shippers for services or instrumentalities furnished by them in connection with services of forwarders (Interstate Commerce Act, sec. 416).

(52) Determinations of justification of rates on materials between points in a single classification territory and in another such territory, and like rates in any classification territory, and orders appropriate to eliminate any unlawfulness found to exist in them (Transportation Act of 1940, sec. 5 (b); U. S. C., title 49, sec. 3).

(53) Orders by ICC under items nos. 12, 13, 14, 15, supra, in relation to carriers by water operating through the Panama Canal (Panama Canal Act of 1912, sec. 11 (d)).

(54) Orders by United States Maritime Commission disapproving, canceling, or modifying agreements fixing or regulating transportation rates or fares, etc., of commerce carriers by water subject to Shipping Act (Shipping Act of 1916, sec. 15; U. S. C., title 46, sec. 814).

(55) Orders by United States Maritime Commission, altering rates found to be discriminatory against United States exporters, charged by water carriers in foreign commerce (Shipping Act, 1916, sec. 17; U. S. C., title 46, sec. 816).

(56) Orders of United States Maritime Commission to water carriers and others subject to Shipping Act to determine, prescribe, and enforce just and reasonable rates and practices (Shipping Act, 1916, sec. 17; U. S. C., title 46, sec. 816).

(57) Orders of United States Maritime Commission finding scheduled rates of water carriers subject to Shipping Act to be unjust or unreasonable, and prescribing just and reasonable rates, etc., or authorizing changes in scheduled rates (Shipping Act, 1916, sec. 18; U. S. C., title 46, sec. 17).

(58) Orders by United States Maritime Commission in relation to increases in rates charged by water carriers in interstate commerce subject to the Shipping Act, after the carrier has previously reduced its rates to injure a competitor. (Shipping Act 1916, sec. 19; U. S. C., title 46, sec. 818).

(59) Orders by United States Maritime Commission in relation to changes in rates charged by carriers by water in intercoastal commerce (Intercoastal Shipping Act, 1933, secs. 3 and 4; U. S. C., title 46, secs. 845 and 845 (a)).

ADDITIONAL VIEWS

Although we join with the majority in the favorable report on this bill, we dissent from committee amendments Nos. 2, 3, 4, 8, and 9. These amendments are stated in the committee report to be "designed to retain the present law which has been in effect since June 18, 1910, and which places the control of the interests of the Government in litigation arising under the Interstate Commerce laws in the Attorney General."

We believe that the interests of substantial justice will be better served by having the control of the important litigation which affects the Interstate Commerce Commission and the Maritime Commission rest with the agencies themselves. At the outset, it should be stated, as will appear from the hearings, the Attorney General stands alone in requesting the amendments which the committee has adopted. On the other side are arrayed not only the members of the Interstate Commerce Commission and their counsel, but also the members and counsel for other Government agencies affected by legislation which will be considered concurrently, as well as the practicing bar of all of these agencies and, most important of all, the Judicial Conference of Senior Circuit Judges of all 10 circuits. This group has worked for 4 years in the preparation of the legislation culminating in H. R. 1468 and the accompanying measures, H. R. 2271 and H. R. 1470. Their conclusions represent a unanimous viewpoint.

In fact, it also appears that the position of the Attorney General has changed in this matter. Originally, through the Solicitor General, approval was accorded to the report of the Judicial Conference, embodying the recommendations of senior circuit judges. This, however, was later withdrawn. The Attorney General appeared in person before the full committee. As a result, his position has been sustained. as against that of the eminent and impressive array of witnesses on the other side.

Apart from the "weight of the evidence" which, it is submitted, is overwhelmingly opposed to the suggested committee amendments, there are sound reasons why the control of litigation should rest with the Interstate Commerce Commission or the Maritime Commission, as the case may be, always with the right of the United States to intervene in the person of the Attorney General.

To adopt the committee amendments is objectionable for the following reasons:

(1) They would give to an executive officer, whose tenure of office is particularly subject to political reactions, a control equivalent to a veto power upon the enforceability of the quasi-judicial determinations of the affected agencies.

(2) They would make the Attorney General the judge in his own case whenever (as is frequently the case) the United States or one of its departments is a litigant before one of the agencies and review of the order is sought in order to reverse the agency decision.

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