The opinion
STEPHENS, Associate Justice.
I dissent. As I understand the facts the witnesses were heard and the argument had before Commissioners Gary, Brown and Sykes, but the decision was rendered by Commissioners Sykes, Case and Prall.'
Two modes of procedure are available under the statute. Under Section 409 (a) [ 48 Stat. 1096 , 47 U.S.C.A. § 409 (a) (Supp.1936)] it is required that “In all cases heard by an examiner the Commission shall hear oral arguments on the request of either party.” Under Section 309 (a) [ 48 Stat. 1085 , 47 U.S.C.A. § 309 (a) (Supp.1936)], where no hearing before an examiner is contemplated, it is provided that the “Commission . . . shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe.” Reading these two sections together I think it clear that Congress intended that the Commission might proceed either by examiner or by itself; that if it proceeded by examiner, while it thus need not hear the witnesses but need only read the evidence as taken by the examiner, still it must hear oral argument; that if it proceeded by itself it must hear the witnesses. And I think Congress meant that when the Commission, proceeding by examiner, and therefore merely reading the evidence, heard oral argument, alt least a majority of the Commission that heard the oral argument must also decide the case. To make oral argument to those who are not to decide would be vain. And I think further that Congress meant that when the Commission proceeded by itself and itself, therefore, heard the witnesses, at least a majority of the Commission that heard them must decide the case. To present witnesses to those who are not to decide would also be vain.
Congress is well aware of the exigencies under which administrative tribunals burdened with a great volume of public business requiring speedy disposition operate, and customarily permits them to dispense with unnecessary formalities. But I think that in the absence of language clearly permitting it, we should not conclude that Congress intended a Commission to dispense with oral argument before, or with hearing of the witnesses by, those who are to decide. Neither of these procedures is a formality. On the contrary, each is a substantial aid to correct decision.
The authorities cited in the majority opinion are, I think, not persuasive because of material differences from the instant case in the facts or statutes involved.
In respect of the cases in the United States District Court and the United States Circuit Courts of Appeals relied upon by the appellee and not mentioned in the majority opinion, to wit, Louie Lung Gooey v. Nagle (C.C.A.) 49 F.(2d) 1016 ; United States ex rel. Chin Cheung Nai v. Corsi (D.C) 55 F.(2d) 360 ; United States ex rel. Minuto v. Reimer (C.C.A.) 83 F.(2d) 166 : These three cases undoubtedly countenance discontinuity in the personnel of Boards of Special Inquiry in the Department of Labor. But while entitled to respectful consideration they are not binding here, and are moreover, I think, not highly persuasive, for the reason that the statute therein involved is not, as is that involved in the^instant case, explicit as to procedure. Moreover, I am myself impressed, and for the cogent reasons which he gives, with the views expressed by District Judge *473 Woolsey in his first opinion in United States ex rel. Chin Cheung Nai v. Corsi, supra. He there said:
“In a judicial proceeding, the personnel of the court could not be changed during the trial, unless with the consent of the parties.
“The reasons for this rule, which I believe to be universally observed, are not far to seek. In the first place, a change in personnel during the trial of an issue of fact would render it impossible for the court properly to chancer questions of credibility, which depend almost wholly on subtle impressions made by witnesses on the tribunal before which they are appearing.
“In the second place, a change in personnel inevitably would tend to dilute the sense of individual responsibility for the decision — a feeling which should inhere as strongly in every member of an administrative board as it does in every judge.
“The action of administrative boards is not subject to full judicial review on the merits, yet they have to deal with issues of fact in matters of the greatest importance to the interested parties. It seems to me, therefore, necessary, in the absence of written consent of the parties involved, that such boards should be required as a sine qua non of a fair hearing to observe the principle of continuity of personnel which the crystallized experience of mankind recognizes as of cardinal importance especially when facts have to be determined.” [ 55 F.(2d) 360 , at page 361]
I think that the Supreme Court in Quon Quon Poy v. Johnson, 273 U.S. 352, 47 , S.Ct. 346, 71 L.Ed. 680 , does not rule on" the question of the effect of discontinuity of personnel.