National Labor Relations Board v. Baldwin Locomotive Works

CLARK] Circuit Judge

(concurring and dissenting).

I agree with my learned colleagues that the respondent has failed to make its point about the trial examiner and about not being chargeable with unfair labor practices while in' reorganization. As the preparation of this opinion has required me to give some attention to the record, I might even agree with them that the union disestablished by the Labor Board was most decidedly company dominated. However, inasmuch as it is my view that this Court should remand the case before passing upon that issue, I am filing this opinion. As I approach the question of the trial examiner’s bias from a somewhat different point of view, I am including discussion of that matter also.

The majority opinion sets forth in footnote 10 the form respondent’s counsel employed from the very beginning of the six *52 teen thousand page record. 1 He only varied it to introduce rather irritating elaborations. The fact is that a departure from the-judicial, shall we say norm or shall we say ideal, does not seem to be a matter of due process at all. Because of the rigidity which Federalism imposes 'on constitutional law and because draftsmen speak before and not after the event, the Fifth Amendment -is not applicable. The early English common -law was confused by Sir William Blackstone. 2 He misinterpreted a remark of Lord Coke’s and expounded the view that the judicial office should be held in such high esteem that it's individual holders were immune to disputable disqualification. 3 So bias, 4 a motivation outside of argument, and prejudice, 5 a motivation without argument, require the intangible proof of words, conduct or even attitude, whereas interest, relationship or advocacy in the cause are external facts automatically demonstrable. So unless the source of pollution is patent, filtration through minds worthy of the bench was presumed. 6

'We can quite understand an unwillingness to acknowledge that justice dispensed by biased and prejudiced judges is due process. It obviously is not if one may speak currently. 7 Some of the inferior Federal *53 Courts 8 have talked rather glibly and without much analysis of partiality and process. 9 The subject has only twice been considered in the Supreme Court and in both instances by way of dictlim. 10 In the earlier case the Court permitted a conviction for murder in a State Court to stand although only the “preponderance” of the' evidence indicated the sanity of one of the jurors. In doing so, Mr. Justice Lurton observed that “due process implies a tribunal both impartial and mentally competent.'” 11 Any experienced trial judge may smile at the last naive tribute to some of the jurors a too complacent method of selection 12 inflicts on the courts. Many professors of law write as if the same subject in its judicial connotation would afford them some amusement. The dictum in the later case makes it plain that the earlier learned justice must have been speaking colloquially rather than by the book. Chief Justice Taft says:

“All questions of judicial' qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W.Va. 266, 270 . But it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching- a conclusion against him in his case.” Tumey v. Ohio, 273 U.S. 510, 523 , 47 S.Ct. 437, 441 , 71 L.Ed. 749 , 50 A.L.R. 1243 . 13

It is clear, then, that counsel’s coupling of the objection for bias and prejudice with the constitutional shibboleth is inaccurate. Is that inaccuracy a matter of substance or of form? The writer thinks it substantial in this sense. It is true that judicial impropriety of any kind may constitute reversible error. 14 In that aspect the courts are not limited to the standards of 1789. 15 It is also true that we sit as an appellate court in Labor Board cases. 16 If accordingly the Court finds bias and prejudice, it can send the litigation back for correction and retrial thereafter. Whether it will do so may be another matter. Its action may depend on such questions as timeliness and waiver for failure to act in good season. Those considerations might very well take on additional complications if the Court must be concerned with the loss of constitutional rights.

It is not necessary to .discuss here the shades and niceties of the ascription to administrative bodies of judicial functions. That subject is a complicated one. 17 It is conceded here that the Labor Board has sufficient of that ascription to require impartiality in its members. Our Court has *54 already so decided. 18 Another Board has insisted on it for itself. 19 Nor has the requirement ever been thought irrelevant to examiners. 20 In fact, there seem to have been an unfortunate number of instances where bias and prejudice has been charged to Labor Board Examiners. 21 We find them in both the reports of the Board 22 and of the reviewing authorities. 23 The frequency of the charge here contrasts unfavorably with the few reported cases on the subject in the analogous field of court appointed subordinates. The appropriate section of the Digest 24 reveals only nine 25 cases in two hundred years' as against six 26 in seven years.

The Labor Board Examiner seems somewhat of a legal hermaphrodite. Judicial, like other human bodies, suffer from limitations of time and space. To overcome them they early resorted to what might be termed the tentacle system. Its earliest emanation appears to have eventuated from the method of taking testimony in Chancery. As the judge, unlike the jury, was supposed to be able to read, the advantages of observation of demeanor were felt outweighed by the opportunity -for quiet study of the written page. So evidence was by interrogatory and their answering was supervised by Examiners either standing or appointed pro hac vice. 27 At first the task was one of collection and collation, and the subordinate court officer had only the power and discretion necessary to the accomplishment of that more or less ministerial task. That it was not and could not be quite colorless is disclosed in the ancient rules for the guidance of Examiners. 28

Once having intrusted discretion it was easy to expand its limits and make the deputization more actual. So we find the *55 ancient office of Master in Chancery. 29 His duty was not only to collect and collate but also to report and recommend. 30 With the growth of the centralized and centrally placed quasi-judicial body, the time-space factor compelled an increased resort to both kinds of assistant. So nearly everyone of the Federal Boards employs some kind of field hearer. 31 The Labor Board Examiner at first blush seems to fall into the more important and elevated category. He may be called on, as here, 32 to file an intermediate report with recommendations. As he need not be required to do so 33 and as even his unexcepted-to recommendations are not always treated with much respect by the parent board, his position is, as the writer has said, somewhat hybrid. 34 But whether more strictly an examiner or, a fortiori, a master, he has not the automatic character of the slot machine or the stenographer 35 and so is subject to disqualification for failure to be impartial. •

The law exists for the correction and not for the commission of errors. As a corollary the mistaken course must be halted as soon as perceived. The respondent perceived an alleged bias here even before it occurred. 36 It complained a multitude of times, practically whenever its counsel paused for breath. Yet it made no move to correct the error. That move was both *56 simple and patient. The examiner, like the master, is the creature of his creator. The Board and the Court, giveth and so can take away. It should have been asked to dp so. In some instances it has been. 37 \Ve are surprised that in the cases where the point has arisen 38 the analogy between the present day examiner and his ancient prototype, the Master in Chancery, has not been thought of. As long ago as 1804, 39 Lord Eldon acceded to a motion that a reference should be removed to the office of another master. 40 That has been the universal practice since. 41

A judicial body which appoints an assistant clothes him with its own qualities and if that clothing does not fit a new wearer should be instantly secured. As this can be done, it must-be done. Otherwise we have the acquiescence in error of which the writer has spoken. I can scarcely believe that the difference between a removable examiner and a fixed judge 42 is not sufficiently plain both to the litigants engaged below and the court engaged above. The writer prescribes, then what he believes to be the sound rule. A litigant before a Labor Board Examiner must demand his replacement as soon as it deems his conduct improper or else he must forever hold his peace. 43

To say such a complaint is of no avail .impugns the integrity of the Board first and of the Circuit Court of Appeals second. To say it will “further- antagonize” the Examiner is surely a bootstrap argument. Any showing of such further antagonism can in its turn be objected to and so on until the litigant finally comes to the courts with no loss other- than having been compelled to the exertion- of helping judicial bodies to correct error when it occurs. Yet these are the arguments adduced by the United States judges holding contra our Court’s view. 44

*57 The writer has stressed the chronological point for this reason. Counsel for the Board do not seem to be sufficiently interested in orderly procedure to trouble about it. So I feel obliged to caution those practicing before Labor Board Examiners that they cannot speculate on an unfavorable decision by the insurance of a charge of bias. Such a course taints the charge itself with insincerity. How true that taint is- in the principal case is painfully apparent. Respondent finds the lack of “dueness” on the part of the trial Examiner in the following asserted conduct: his refusal to permit the statement of the grounds for certain exceptions, his refusal to issue certain subpoenas, his refusal to permit certain questions, and finally his personal participation in the questioning of certain witnesses.

To begin with, respondent’s counsel displays a complete misconception of the mean ing of a partial mind. Such a mind is one that is closed to justice because some factor dehors the record prevents it from functioning. If it does operate, the fact that counsel does not agree with that operation or even that no one agrees with that operation may indicate such matters as lack of education, legal or otherwise, lack of I.Q., lack of judicial temperament et cetera, but it does not spell lack of fairness. So the courts forbid any deduction of bias and prejudice from adverse rulings. 45 One might, although counsel here does not, suggest a possible exception, if the unfavorable rulings are frequent and stupid enough. I say possible, but not probable, exception because to make the inference logical would require a mental examination of the particular judicial officer.

The writer confesses to have never before seen the word “prevent” used to describe such adverse rulings. Counsel seems much addicted thereto and uses it many times. 46 It carries with it a flavor of physical force and seems intended to give us some impression of violence and an outrage upon trial decencies and amenities. The rose is no less redolent. The “prevention” of certain questions on cross-examination and of certain offers and questions on direct is not raised by the use of the word into anything more than an adverse ruling. Among the preventions listed is one for obtaining subpoenas (both ad testificandum and duces tecum) for the production of evidence on two certain issues. The respondent exhibits some confusion as to the exact nature of the process for compelling testimony. As is known its origin springs from the need to correct the “meddling and maintenance” theory that at first marked the transition from the early jury-neighbor trial to our modern system. 47 That correction had been made prior to the Constitution and so under the theory earlier discussed it would seem to have become part of due process. 48 In criminal cases the Constitution goes beyond the vague and general into the particulars. 49 In civil cases the statutory grant to courts is so universal that the question does not arise. Sometimes it has not been accorded to administrative boards. There has been some rather inconclusive discussion about this in relation to due process. 50 The National Labor Relations Act is quite specific. As the word used is “power”, 51 the issuance is not automatic as it is with the United States Courts. 52 The Board can therefore impose qualifications. At the time of the principal case it had done so. 53 So had many of the other administrative agencies. 54 We are only concerned with their reasonableness. *58 The requirement of relevancy falls within that bracket. It is common-as to all subpoenas duces tecum, 55 and as to witnesses from a distance. 56 To have the judicial officer pass on the evidence before the burden is imposed rather than afterwards saves everybody and is manifestly sensible.

The Board’s subpoena rule involves more than the fairness of the requirement of relevancy. This because it is one-sided and the proscription applies to the respondent only. Its reasonableness has been supported 57 and questioned. 58 To do the latter in the constitutional sense would, the writer suggests, imply the holding that a litigant has some vested right in “preventing” his opponent from bothering people unnecessarily. In other words, if he has the privilege of bringing in all relevant evidence, or more accurately perhaps the right to reverse for not being granted such privilege, he can scarcely be injured by his opponents having wasted everyone’s time and money by -getting up to the barrier with stuff afterwards found to be just that. As a matter of fact, it is rather doubtful if evidence that is irrelevant and no worse offered by and admitted for your opponent is error without more.

For that reason the writer prefers the cases which hold that the refusal to issue subpoenas must have been affirmatively prejudicial. 59 That, of course, cannot exist if the evidence called for by them is irrelevant or -inopportune. This is most plainly the case. ' The respondent suggests it wanted to show that the S.W.O.C. 60 is not a “seli-organization”. 61 The prefixal use qf “self” occurs in numerous compounds and is grammatically correct. 62 The resulting term, however, must convey some meaning. This self-organization standing alone, does not do and so we must turn, therefore, to the-guarantee of the National Labor Relations. Act, 63 for interpretation. There it is used in the phrase “the. right to self-organization”, 64 which is a rather awkward way of saying “the right to organize themselves” and is fully met by any proof that the S.W., O.C. is composed of employees of the respondent who have formed any kind of association. This proof the trial examiner was expressly willing to receive and to issue subpoenas for the procurement of. 65 As a matter of fact, it was really unnecessary to resort to evidence at all. The examiner could not accept evidence from other cases and was wrong in saying he could. 66 Nevertheless, the modern and expanded doctrine of judicial notice might well have placed the S.W.O.C. in the category of notorious miscellaneous facts. 67

The trial examiner felt himself constrained to follow what appears to be an exception to the rule of disqualification of judges. The cases held that the rule must yield to the demands of necessity. Accordr-ingly they inflict a- biased and prejudiced judge upon litigants on a theory similar to-the one that “the mail must go through”. 68 The majority of jurisdictions now of course provide by Constitution or statute for substitute judges. 69 The subject is therefore nearly always academic. Either adminis *59 trative boards are too recently created or their personnel is deemed to be too pure to have had their originating statute close this gap. The doctrine seems rather one of despair. I suggest it would be wiser to have no litigation than biased litigation. Who would be injured thereby is dependent on the numerical ratio of merit to bias. The sufferer has always the right to apply for executive or legislative redress either by way of pardon or by remedial legislation. 70 The vague, verbose and veiled manner in which the charges against the entire membership of the Labor Board are made leaves one in- some doubt as to their good faith. However, there is no question about their assertion. I do not have to declare our adherence to the defeatism of the cases above referred to. A trial examiner appointed to collect and recommend might collect but he could hardly be expected to recommend the ■disqualification of the very authority that appointed him. He could therefore have properly refused the evidence on the ground that it should have been presented to the Board itself. This course we ordered in the case already twice cited. 71 The fact that he did not assign this reason would be no excuse for a subsequent failure to follow such a course. A judicial officer is under no obligation to give the correct reason for his action. If that were not so, judges might be in peril.

Respondent’s two other criticisms of the examiner’s conduct have even less merit. Its counsel’s understanding of the function of the exception to a judicial ruling dates back to the Middle Ages. Because of that, he seemed to think that he should make them ■co-equal in number with the questions asked. Modern procedure recognizes that the exception is simply a matter of fairness to the person whose duty it is to rule. 72 He should and so in fairness must be informed that a particular ruling is not, in the opinion of a particular protagonist, sound. Professor Wigmore puts it thus:

“In modern practice, in the United States, where the proceedings are usually reported stenographically, the defeated counsel’s announcement of an exception at the time of the ruling has become less important; his reliance upon the supposed error of the ruling can as well be indicated later at the time of a motion for a new trial. Moreover, the practice of some counsel in some regions of emitting perfunctorily at every ruling a snapping ejaculation ‘Except!’ has impaired needlessly the sobriety of the proceedings and the prestige of the judge. Hence, a modern movement is prevailing to abolish the exception, i. e., to abandon the requirement of announcing at the time of the unsatisfactory ruling the counsel’s intention to treat it as an error for purposes of appeal. This relegates him to some later stage of the proceedings for specifying and saving his grounds of appeal.” 1 Wig-more on Evidence, 3d Ed., § 20, p. 3SS. 73

In the principal case it is more than understatement to say that the examiner was made thoroughly familiar with all of counsel’s rather decided views. He acknowledged his perception thereof by the standard practice of the exception to a line of questioning.

This modernization and departure from the “game and umpire” conception of courts has progressed just as much in respect to participation in the trial by the judicial officer. 74 In England where the aforesaid theory never found much lodgment, any suggestion that a judge could be criticized for his efforts to bring out the truth has always been scorned. 75 Here, also, we may advantageously quote a summary by Professor Wigmore:

“One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge’s power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully. This just exercise of his function was never doubted at common law; the *60 judge could even call a new witness of his own motion, and could ■ seek evidence to inform himself judicially; much more could he ask additional questions of a witness already called but imperfectly examined. Fortunately, in spite of the strong but subtle tendency to force the purely judicial function into the background, the tradition of .the common law has never been lost; the right of the judge to interrogate as he thinks best has always been preserved in theory,” 3 Wigmore on Evidence, 3d Ed., § 784, p. 152-153.

Counsel can therefore hardly expect us to adopt a numerical formula' such as one question permitted to the examiner for every ten by him. The matter being imponderable, it is impossible to delimit the charge in anything more than general language. Acknowledgment of ' that fact is found in the terms of the appropriate Canon of Judicial Ethics. It reads:

“A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, .or to clear up some obscurity, but he should bear in mind that his undue -interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who 'are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.” Canon 15, Interference in Conduct of Trial, 62 Reports of American Bar Association, p. 1127.

Even on such a formula the examiner in the case at bar seems to have stayed well within the proprieties. Respondent’s counsel overlooks an essential aspect of this especial judicial officer. He and his Board are only quasi-judicial and have also, as has been asserted ad nauseam, a “prosecuting” function. 76 In that regard the examiner is charged with the duty of developing the case and so must be permitted a certain latitude. The matter is well put by Professor Davey:

“* * * While the examiner is essentially a judicial officer, he has this additional obligation of developing a complete record for the benefit of the board If necessary, he may and does participate in questioning of witnesses, he may advise counsel as to lines of testimony they should develop, or he may himself introduce evidence. The examiner cannot take refuge in •the fact that the board’s attorney or employer’s counsel .have been negligent in their own duties.

“When a trial examiner questions witnesses, criticism has arisen that in so doing he is abandoning his proper judicial role. The writer emphatically disagrees with such a viewpoint. Again it must be stressed that examiners are presumed to be administrative experts as well as lawyers. The fact that they may participate in questioning witnesses, or even in the introduction of evidence, does not ipso facto destroy their judicial temperament and thus derogate from their primary function.” Davey, Separation of Functions and the National Labor Relations Board, 7 University of Chicago Law Review 328, 338.

In conclusion as to the trial examiner I find, first, that the respondent chose to speculate on its faring before him rather than to ask for his removal the instant they had decided that he was a partial judge, and, second, that the latter decision has so slight basis in fact that the writer is astonished at its being made. Before I leave the discussion of the examiner’s alleged bias and prejudice, I must refer to and reject a most curious argument advanced by the Board. It is asserted and not denied that respondent’s counsel has made the same charge against three other Labor Board examiners and that in each instance the courts found it not justified. From this, the Board argues that it cannot be true here. Its counsel does not cite, as they could have, the only precedent that might support such a view. .He might have used the analogy of the “previous acts of violence evidence” in self-defense cases. 77 Even if he had, the analogy would not hold. An individual may defend himself' against hostile provocation. A judge, by definition, must not.

We come now to the matter in respect to which I am constrained to differ from my learned colleagues. The Board treated it with considerable casualness. The unsoundness of their position appears, I think, from its very statement. The Board maintains that judicial officers need not have any *61 personal knowledge of the facts on which they base their decision. I am unwilling to assent to any such theory. 78 One reason for this approach on the part of the Labor Board’s counsel may lie in his misunderstanding of our court’s holding in an earlier case. 79 It is there said that the mental processes of the members of a judicial body must, if that is their wish, be kept from profanation by the public gaze. It is not said that the conduct of judicial officers Cannot be proved in any fashion. Nor is it said that if that conduct is already known either by concession, by admission or other proof aliunde compulsion on the judges themselves, such knowledge must be disregarded. Misconduct of a juror is no longer held to come either within any privileged communication or parol evidence rule; 80 a fortiori that of a judge. Relevant evidence is often excluded because of some rule of public policy. It is none the less relevant and can therefore be used if the policy has disappeared because the evidence is already before the court.

In my view both conditions exist here. As I shall indicate later, the United States Supreme Court in the Morgan cases 81 insists that the quasi-judicial officer should “read and consider” the testimony offered before him. 82 The considering involves, of course, that inquiry into mental processes which we held privileged in judicial bodies of more than one member. A person may absorb the printed word through his eyes but its effect on his brain is known to him alone. So, reading on the part of judges is of factual significance only, just as much as is drunkenness on the part of jurors. 83 Furthermore, the quasi-judicial conduct here under scrutiny is not only conceded, it has been frankly and fairly asserted on the best possible authority. As long ago as 1939 and one year before the revelations of the Smith Committee, the then Chairman of the National Labor Relations Board gave this candid description of their process of decision:

“ * * * During the past three years the Board has issued some 1,200 decisions. At the present time there are several hundred cases pending before the Board for decision. The average record in each case is well over 1,000 pages. It can readily be seen from these figures that the Board members themselves cannot expect to read the records. In making» its decision the Board, therefore, avails itself of assistants known as review attorneys who are under the direction of an Assistant General Counsel and a group of supervisors. The review attorneys analyze the evidence, inform the Board of the contentions of all parties and the testimony relating thereto, and, after decision by the Board, make initial drafts of the Board’s findings and order.” Madden, Chairman of the National Labor Relation^, Board, SI Virginia State Bar Association Reports (1939), p. 414-415.

It has been several times adverted to and expatiated on since that time. 84 In fact, our learned colleagues say that they may well assume it. 85

The writer does not wish to be unrealistic or stuffy about. the problem. It troubled lawyers and judges for many years prior to the advfent of the review-attorney device employed in the case at bar. The reading and mental absorption of vast quantities of written or printed material is time consuming and mind enervating, but it is at least less so than the pre-shorthand period’s *62 necessity of remembering and chirograph-ically noting and subsequently remembering. In the effort to ease the burden the task of compression was first entrusted to those responsible for the expansion. That was" the genesis of the statutes and -rules providing for the narrative form and for abstracts. 86 This solution rather fell afoul of the same litigious dispositions that had produced the original plethora. Counsel could not agree and the Court spent more time in adjudicating those differences than it would have in reading and reaching a decision on the unexpurgated record. 87

The next attempt to spare if not judicial blushes, at least judicial efforts, is the one now under fire. The original record is read by experts hired for the purpose and the knowledge so acquired is imparted secondhand to the actual triers. An attempt has been made to gloss this process by describing it as the “sifting and analyzing” expressly approved by Mr. Chief Justice Hughes in the first Morgan case. 88 To say so is to indulge in a most patent pour-parler. In plain language one man or men (the review attorneys) read and consider another or others (the members of the Labor Board) hear of the former’s activities and decide thereupon. This is the so-called institutional or anonymous approach 89 as distinguished from the personal consideration traditional in courts of justice.

Must that tradition be preserved here? The writer thinks so. It is true that the institutional method has been followed in many of the administrative. boards. The Attorney General's Monographs so indicate it. 90 We may someday have occasion to pass upon the practices of the others. In *63 many instances the particular agency is undoubtedly purely administrative, 91 and so the group method cannot be objectionable. 92 As we have noted, the opposite is true here. The subject has been skirted twice. One Circuit Court of Appeals 93 held it could not interfere with some nonreading state appellate judges under the due process clause of the Fourteenth Amendment. There we would seem to have the same question of ancient history we have already spoken of. 94 The early judges, as we have said, enjoyed whatever compensation goes with freedom from too much mechanical improvement. The Supreme Court in the Morgan cases insisted on reading and considering. They qualified that insistence, however by the addition of “sifting and analyzing”. As they did not go on and explain these latter terms, we must now determine for ourselves the extent of the qualification.

Those who have written on the subject are not in agreement. Some take the traditional and so conservative side. Dean Pound writing in the American Bar Association Journal says:

“It is fundamental that one who decides controversies and exercises what are substantially judicial functions should know the record thoroughly. If he is to decide on the basis of an abstract, it should be, as in the courts, one agreed on by the parties or settled after hearing both as to what it should contain — an abstract settled before argument and available to the parties at the argument so that those who argue and those who decide have the same material before them. He should not decide on an abstract made after argument by a subordinate, very likely in conference with the prosecuting advocate. The general attitude of too many administrative agencies, however, is illustrated by the objection of the National Labor Relations Board to a provision recommended by the minority intended to emphasize the responsibility of the individual officer.” Pound, For the “Minority Report”, 27 American Bar Association Journal 664, 669.

To the same effect we find the Attorney General’s Committee saying:

“But these assistants should be aides and not substitutes. The heads of the agency should do personally what the heads purport to do. We have already recommended that the work of personnel selection and management, the work of investigation, informal adjustment or decision, and the issuance of complaints in the generality of cases be vested in responsible officers. We here recommend similar relief so far as the hearing and initial decision of cases is concerned and have outlined the restricted nature of the review which should be given those decisions. But that review should be given by the officials charged with the responsibility for it, and the review so given should include a personal mastery of at least the portions of the records embraced within the exceptions.

“In agencies headed by a board, commission, or authority, further division of labor may be necessary to provide the time for individual attention by the agency heads. The members may find it necessary to sit in divisions, as do the Interstate Commerce Commission and the Board of Tax Appeals, with the full board reviewing decisions only in cases of exceptional importance or upon petition. It may be necessary to increase boards of three members to five, in order to make this possible.

*64 “In single headed departments and agencies, like the Post Office arid the Departments of Commerce and Agriculture, the Committee recommends that- all pretense of consideration of each case by the agency head be abandoned and that there be created either boards of réview, as in immigration procedure, or chief deciding officers who shall exercise the final, power of decision. But if the agency head in these de-, partments does review a case, he must assume the burden of personal decisions.” Final Report of the Attorney General’s Committee on Administrative Procedure, 1941, pp. 52, 53. 95

Others vindicate the radical and institutional .procedure. Professor Handler says:

“Under the Morgan cases, it is patent that although subordinates may be used to assist in the reaching of a decision, the function of actually deciding may riot be delegated to them. However, the degree to which the Board must participate in the formulation of the final orders cannot be charted with minute detail. The rule broadly stated by the Court is that he who decides must hear.' As we have already indicated, this does not mean that the person responsible for the decision' must actually hear the testimony or éven the argument. But where he has not heard the testimony or argument he must be sufficiently acquainted with the record, the argument and briefs, either directly or through summaries, to make the decision the product of his own judgment. The requisite minimum of personal examination will vary with the case and the administrative agency. Lithe light of the Morgan case, it is clear that the essentials of a fair hearing would be held lacking if a Board permitted subordinates to review the record and to make findings which were adopted without careful reexamination and reappraisal. On the other hand, it is equally clear that the Board need not read every word of testimony or briefs. If the Board has heard oral argument or read briefs, and has had the ad-' vantage of a summary,' oral’ or written, of the record, and has satisfied itself as to the correctness of the inferences to be drawn either through examination of material portions of the record or through discussion with members of the review section, then by any rational standard it has both heard and decided.” Handler, The Morgan Case and The National Labor Relations Board, CCH Labor Law Comm., No. 5. 96

And is supported by a writer in the Iowa Law Review:

“The requirements of the Morgan case that administrative agencies must consider the record in issuing their orders has had little effect in the actual decisions, for not a single case has been found in which an order was actually set aside because the administrative officers or board had not considered the record. While the requirement may be valuable as a general admonition, it is scarcely capable of effective application. Even when a court may be persuaded to grant interrogatories or subpoenas, it seems extremely unlikely that any administrative official would testify that he had not considered the record at all. After an official has testified that he has considered part, though not all, of a record, how can an objective test be devised to determine whether his consideration is adequate? Moreover, while no one would deny that administrative officers should consider the record in making their decisions, it is obviously impossible for busy administrators to go minutely into such records. If it is not objectionable for judges, even justices of the Supreme Court of the United States, to employ subordinates to digest much of the record in cases brought before them, it seems no more objectionable in the case of administrative officers, so long as they realize the responsibilities of their position.” Aftermath of the Morgan Decisions, 25 Iowa Law Review 622, 630. 97

*65 To the writer the arguments of the learned Dean and the Attorney General’s Committee seem unanswerable. The judicial process connotes, if it means anything, the operation of the judge’s own mind. It cannot be funneled through some other, even superior, intellect. So any sifting and analyzing that has not had the approval or disapproval of the litigants does involve the mental processes of others than the persons designated in the statute. On the other hand, if either the approval of the compression or the disapproval thereof has been winnowed through the thoughts of the Board members, they are functioning with the help of subordinates and are not simply beginning where the latter left off. 98

Even from the practical point of view such a requirement does not seem to this writer unreasonable. The burden is more imaginary than real. The mass of material is first foreshortened by the intermediate report and the exceptions thereto. Clearly the triers need only read the portions about which there is a discord and so which are objected to by exceptions and subsequent oral argument. If the review attorney’s memoranda are submitted to the parties and made subject to similar exceptions, I think that that system is then bent to a golden mien. 99 It is true that another step is introduced and so a small amount of additional time consumed. The writer thinks its expenditure worth the resulting assurance to both master and servant that they are receiving justice filtered through the minds of Presidential appointees confirmed “by and with the advice and consent of the Senate”, 100 rather than at the hands of a group of anonymous members of the Bar appointed by an administrative agency without anybody’s advice and consent.

Respondent’s Appendix, Vol. 1, p. 338.

3 Blaekstone’s Comm. p. 361.

The Disqualification of Judges, 20 Columbia Law Review 594.

“How easy the coach capsizes on the side to which it leans”, Erasmus.

“You shall not be my judge, for it is you

Have Blown this coal betwixt my lord ' and me

Which God’s dew- quench.”

Shakespeare, Henry the Eighth, Act 2, Scene 4. :

“ * * * With logical consistency the English courts hold that a judge, is rendered incompetent upon a showing of a real possibility of bias.' Accordingly it has been held that personal animosity between judge and party or membership of the judge in a class which will be interested in the outcome is sufficient' for recusation. There has thus been a wholesome recognition that human frailty may not be overcome by trained habits of impartiality, that the human limitations of the presiding judge may résult in the deprivation of a just hearing, and that the stimulation of public confidence in the integrity of the judiciary demands that the judge be not only actually fair' minded, but above all suspicion to the contrary. In the United States, however, the courts have drawn an irrational distinction. While it is commonly held that interest is a sufficient ■ ground for disqualification, prejudice, is not. * * *

“A justification often advanced for the aged distinction between bias and interest is that the English rule affords too great an opportunity for unmerited attacks on judges and needless delay of trial. While it is true that a charge of bias not founded on some established relationship may easily be fabricated; resulting prosecutions for perjury would seem to furnish an efficient check. Furthermore; it is hardly an adequate reason to reject a desirable rule merely because there-may be an abuse. A further justification suggested is that since the judge passes only on the law a party’s rights may be adequately protected by appeal. But it is common knowledge that a biased judge may prejudice a party’s cause' without this appearing on the record.” Disqualification of a Judge on the Ground of Bias, 41 Harvard Law Review 78, 79, 81, 82.

The principle of judicial recusation stems from civil law and most civil law countries make disqualification easy. French Code of Civil Procedure, tit. 21, art. 378; German Code of Civil-' Procedure §§ 41, 42; Spanish countries, Eseriche, Diccionario razonado de Legislacion y Jurisprudencica, pp. 1489, 1940; cf. Louisiana Code of Practice, p. 268 (1914).

“ * * * While . present judicial ethics would serve to make recusation desirable because of bias per se, it has not been easy to overcome the sanctity with which the judicial system and its officers are surrounded and the practical difficulties of discovering when judicial bias exists or deciding what degree of prejudice is essential to disqualification. In recent years, however, many legislatures have made bias or prejudice per se cause for disqualification, or have found it to be part of their constitutional or common law. * * *

“Our judicial system has now achieved a sophistication which should permit realistic approach to the question of disqualification of judges. Extreme solutions of change at the will of the suitor, or only in the presence- of a narrowly defined substantial interest, have only a possible administrative simplicity to offer to, counteract their inadequacy in providing a fair result in the particular case. Of the two mediate solutions which have been proposed, the ‘reasonable apprehension’ doctrine appears superior. Its subjectivity rightly recognizes that honest belief in the presence of bias can be al *53 most as serious a handicap to judicial efficiency, if not justice itself, ás fáetual prejudice.” Disqualification .of Judges Because of Bias and Prejudice, 51 Tale Law Journal 169, 175.

Bethlehem Steel Co. v. N.L.R.B., App.D.C., 120 F.2d 641 ; N.L.R.B. v. Ford Motor Co., 6 Cir., 114 F.2d 905 .

Some state constitutions have express provisions, King v. Grace, 293 Mass. 244 , 200 N.E. 346 .

Jordan v. Massachusetts, 225 U.S. 167 , 32 S.Ct. 651 , 56 L.Ed. 1038 ; Tumey v. Ohio, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 . 50 A.L.R. 1243 .

Jordan v. Massachusetts, 225 U.S. 167, 176 , 32 S.Ct. 651, 652 , 56 L.Ed. 1038 .

Cf. the unpaid commissioner, 28 U.S. C.A. § 412.

Referred to in .footnote 9 of the majority opinion,

30 Amer.Juris.Judges § 97.

Powell v. Alabama, 287 U.S. 45, 65 , 53 S.Ct. 55 , 77 L.Ed. 158 , 84 A.L.R. 527 .

29 U.S.C.A. § 160 .

Symposium on Administrative Law, 47 Yale Law Journal 515-674; Cushman, The Independent Regulatory Commissions, Chapter 6; The Constitutional Status of the Independent Regulatory Commissions; Gellhorn, Federal Administrative Proceedings, Chapter 1, The Administrative Agency — A Threat to Democracy?; Frankfurter, The Task of Administrative Law, 75 University Pennsylvania Law Review 614, 615; Frankfurter, Foreword to a Discussion of Current Developments in Administrative Law, 47 Yale Law Journal 515, 517; Feller, Prospectus for the Further Study of ITederal Administrative Law, 47 Yale Law Journal 647, 663; Cooper, Administrative Justice and the Role of Discretion, 47 Yale Law Journal 577, 578; Feller, Administrative Law Investigation Comes of Age, 41 Columbia Law Review 588, 600-602; Landis, The Administrative Process 3; Jaffe, Invective and Investigation in Administrative Law, 52 Harvard Law Review 1201, 1208, 1211-1212; Jennings, Courts and Administrative Law — The Experience of English Housing Legislation, 49 Harvard Law Review 429; Carr, Concerning English Administrative Law li-lla

Berkshire Employees Ass’n, etc., v. N.L.R.B., 3 Cir., 121 F.2d 235 .

In the Matter of Segal and Smith, 5 F.C.O. 1; cf. Montana Power Co. v. Public Service Commission, D.C., 12 F.Supp. 946 .

“ * * * After that decision was rendered by this court, the defendants moved that the rule to the master be discharged and a new master appointed. In substance, the grounds alleged in that motion were that the master had prejudged this case because of his decision in the other case, and was biased and could not give the defendants that impartial hearing to which they are entitled. Affidavits and counter affidavits were filed. The motion was denied after hearing and consideration, and the defendants appealed. The discharge of one master after hearings have begun and the appointment of another is unusual. It ought not to be done except for compelling reasons. The master in the case at bar was exceptionally equipped by long experience in high judicial position. It is the right of every citizen, secured by constitutional mandate, to be tried by judges as ‘free, impartial and independent as the lot of humanity will admit.’ No one ought ever to be appointed master in an equity suit whose character is not unblemished and above reproach. His mind ought always to be open to the truth and susceptible to every right influence flowing from the evidence.”

Dittemore v. Dickey, 249 Mass. 95 , 144 N.E. 57 , 58.

Gellhorn and Linfield, Politics and Labor Relations: An Appraisal of Criticisms of NLRB Procedure, 39 Columbia Law Review 339, 356, 387.

Union Die Casting Co. Ltd., 7 N.L.R.B. 846 ; Express Publishing Co., 8 N.L.R.B. 162 ; Midland Steel Products Co., 11 N.L.R.B. 1214 ; Johns-Manville Products Corp., 17 N.L.R.B. 895 ; Air Associates, Inc., 20 N.L.R.B. 356 ; Indiana & Michigan Electric Co., 20 N.L.R.B. 989 ; Henry Glass & Co., 21 N.L.R.B. 727 ; Ford Motor Co., 23 N.L.R.B. 342 .

Montgomery Ward & Co. v. N.L.R.B., 8 Cir., 103 F.2d 147 ; Cupples Co. v. N.L.R.B., 8 Cir., 106 F.2d 100 ; Inland Steel Co. v. N.L.R.B., 7 Cir., 109 F.2d 9 ; N.L.R.B. v. Ford Motor Co., 6 Cir., 114 F.2d 905 ; N.L.R.B. v. Washington Dehydrated Food Co., 9 Cir., 118 F.2d 980 ; Bethlehem Steel Co. v. N.L.R.B., App.D.C., 120 F.2d 641 .

West Digest System, Equity <&wkey;393.

In re Volland, 7 Cir., 69 F.2d 475 ; Story v. De Armond, 179 Ill. 510 , 53 N.E. 990 ; Strong v. Strong, 9 Cush., Mass., 560; Vette v. Geist, 155 Mo. 27 , 55 S. W. 871 ; Teter v. Moore, 80 W.Va. 443 , 93 S.E. 342 ; Brewer v. Asher, 8 Okl. 231 , 56 P. 714 ; New River Grocery Co. v. Neely, 106 W.Va. 96 , 144 S.E. 874 ; Dittemore v. Dickey, 249 Mass. 95 , 144 N.E. 57 ; Anonymous, 1804, 9 Vesey Jr. 341.

gee footnote 23 of this opinion.

1 Daniell’s Chancery Pleading and Practice (5th ed.) Chap. 22; cf. as to-the American practice, Stone, The Record on Appeal in Civil Cases, 23 Virginia Law Review 766; Griswold and Mitchell, The Narrative Record in Federal Equity Appeals, 42 Harvard Law Review 483.

“The Examiner is not strictly bound to the letter of the interrogatories, but ought to explain every matter or thing which ariseth necessarily thereupon; and *55 forasmuch as the witness, by his oath, which is so sacred, calleth Almighty God (who is truth itself, and cannot be deceived, and hath knowledge of the secrets of the heart) to witness that which he shall depose, it is the duty of the Examiner gravely, temperately, and leisurely to take the depositions of witnesses, without any menace, disturbance, or interruption of them in hinderance of the truth.” Lord Clarendon’s Orders, 1 Daniell’s Chancery Pleading and Practice (5th ed.) 888.

2 Daniell’s Chancery Pleading and Practice (5th ed.) Chap. 29.

19 Amer..Juris.Equity § 365. , The practice has been abused:

“ * * * In some jurisdictions the courts have come to treat most cases which are important and involved as ‘exceptional’, and, over the protest of the litigants, have referred these to special masters ‘to take and hear the evidence offered by the respective parties, and to make their conclusions as to the facts and recommend the judgment to be rendered thereon.’ ” Lane, Twenty Years Under the Eederal Equity Rules, 46 Harvard Law Review 638, 642.

The Monographs of The Attorney General’s Committee on Administrative Procedure (.1940) disclose that this is a common practice at the following Boards among others: Department of Labor, Division of Public Contracts, No. 1, p. 12; Federal Communications Commission, No. 3, p, 26; United States Maritime Commission, No. 4, p. 14; Federal Alcohol Administration, No. 5, p. 26; Federal Trade Commission, No. 6, p. 26; Department of Agriculture, Administration of Grain Standards Act, No. 7, p. 23; Administration of Packers and Stockyards Act, No. 11, p. 41; Railroad Retirement Board, No. 8, p. 76; Federal Reserve System, No. 9, p. 62; Fair Labor Standards Act, Wages and Hours Division, No. 12, p. 51; Post Office Department, Fraud Orders, No. 13, p. 52; Federal Deposit Insurance Corp., No. 14, p. 78; War Department, Regulation of Bridge Construction etc. No. 15, p. 19; Social Security Board No. 16, p. 37; National Labor Relations Board, No. 18, ,p. 34; Civil Aeronautics Authority, No. 19, p. 28; Department of Interior, Grazing Service, No. 20, p. 33; General Land Office, No. 20, p. 97; Office of Indian Affairs, No. 20, p. 119; Bituminous Coal Division, No. 23, p. 40; Board of Tax Appeals, No. 22, p. 185; Interstate Commerce Commission, No. 24, p. 29; Federal Power Commission, No. 25, p. 17; Securities and Exchange Commission, No. 26, p. 117.

Respondent’s Appendix, Yol. 2, p. 1710.

Wolf, Administrative Procedure Before the National Labor Relations Board, 5 University of Chicago Law Review 358, 373.

“If the Commission is free wholly to disregard the trial examiner’s report, it may be questioned whether the report adequately serves one of its most important supposed functions, that of notifying the parties of the issues involved. The issues discussed in such a report may not be the issues which move the Commission. Exceptions and argument directed to a report which has no binding quality may be futile.” Lane, Address in Symposium on Administrative Law, 9 American Law School Review 154, 160.

It might be said that even a stenographer might display more or less skill according to his prejudice; cf. United States v. Morgan, 313 U.S. 409, 420, 421 , 61 S.Ct. 999 , 85 L.Ed. 1429 .

The respondent’s criticism appeared in its answer. See footnote 1 of this opinion.

See Union Die Casting Co., 7 N.L.R.B. 846 ; Express Publishing Co., 8 N.L.R.B. 162 .

Bethlehem Steel Co. v. N.L.R.B., App.D.C., 120 F.2d 641 .

Anonymous, 1804, 9 Yesey Jr. 341.

“ * * *the counsel alleged that upon going before the master to whom the cause stood referred who was of a very advanced age, and extremely infirm, he found him in such ■ a state, that it was not proper to go into the business before him.”. Anonymous, 1804, 9 Vesey Jr. 341.

“ * * , * -we could not consider the same, as the. record shows that the objection to the referee on account of bias and prejudice was not presented to the court, but to the referee himself, * * * The referee had no jurisdiction to pass upon any such question. He had no authority to determine his own qualifications as referee. Those questions were exclusively for the court that appointed him. The only authority vested in the referee was to hear and report upon the issue or issues in the cause referred. If the plaintiff in .error had desired to raise the question of the qualifications of the referee, it should have presented the same to the court by a motion to discharge the referee, or other appropriate motion. Brewer v. Asher, 8 Okl. 231 , 56 P. 714, 715 .

In re Volland, 7 Cir., 69 F.2d 475 ; Story v. De Armond, 179 Ill. 510 , 53 N. E. 990 ; Vette v. Geist, 155 Mo. 27 , 55 S.W. 871 ; Teter v. Moore, 80 W.Va. 443 , 93 S.E. 342 ; New River Grocery Co. v. Neely, 106 W.Va. 96 , 144 S.E. 874 ; Anonymous, 1804, 9 Vesey Jr. 341.

In some jurisdictions a proceeding in prohibition may be made to restrain even a judge from participating further in an action. Hall v. Superior Court, 198 Cal. 373 , 245 P. 814 ; Conkling v. Crosby, 29 Ariz. 60 , 239 P. 506 ; State ex rel. McAllister v. Slate, 278 Mo. 570 , 214 S.W. 85 , 8 A.L.R, 1226; Forest Coal Co. v. Doolittle, 54 W.Va. 210 , 46 S.E. 238 ; People ex rel. Burke v. District Court, 60 Colo. 1 , 152 P. 149 ; or á writ of mandamus transferring the jurisdiction to another judge may be arranged, State ex rel. Douglas v. Superior Ct., 121 Wash. 611 , 209 P. 1097 . But for the Federal rule contra, cf. Minnesota & Ontario Paper Co. v. Molyneaux, 8 Cir., 70 F.2d 545 .

1 quite agree with the author of the article on judicial bias and prejudice above cited. He said:

“ * * * Any well functioning system of disqualification should, of course, require immediate challenge to the eligibility of the judge as soon as the facts leading to apprehension of bias become known; strict insistence upon waiver in the absence of such protest is necessary to prevent last minute ‘discovery’ of bias by losing parties .‘combing’ the record for grounds for reversal upon appeal. It is to be hoped, however, that an ever increasing number of jurisdictions will adopt this flexible standard for judging the unceasing claims of litigants that they have been denied justice.” Disqualification of Judges Because of Bias and Prejudice, 51 Yale Law Journal 169, 175.

Inland Steel Co. v. N.L.R.B., 7 Cir., 109 F.2d 9 .

30 Amer.Juris.Judges § 74; Ex parte American Steel Barrel Co., 230 U.S. 35 , 33 S.Ct. 1007 , 57 L.Ed. 1379 ; Walker v. United States, 9 Cir., 116 F.2d 458 .

Respondent’s brief, pp. 9-26.

8 Wigmor.e on Evidence (3d ed.) § 2190.

Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 , 90 A.L.R. 575 .

U.S.C.A.Constitution, Part 2, Amendment YI.

Subpoenas and Due Process in Administrative Hearings, 53 Harvard Law Review 842; Gellhorn and Linfield, Politics and Labor Relations An Appraisal of Criticisms of NLRB Procedure, 39 Columbia Law Review 339, 377-385.

29 U.S.C.A. § 161 .

Federal Rules of Civil Procedure, Rules 45(a), 45(e) (1), 28 U.S.C.A. following section 723c; Holtzoff, New Federal Procedure and the Courts, p. 122. In respect to subpoenas duces tecum the issuance is ministerial but subject to motion to quash if unreasonable and oppressive. Rule 45(b), 28 U.S.C.A. following section 723c; 403-411 E. 65th St. Corp. v. Ford Motor Co., D.C., 27 F.Supp. 37 ; Folley Amusement H. Corp. v. Randforce A. Corp., D.C., 1 F.R.D. 496 .

Board’s Rules and Regulations, Art. 2, sec. 21.

Monographs of The Attorney General’s Committee on Administrative Procedure (1940): Department of Labor, Division of Public Contracts, No. 1, p. 13; Federal Communications Commis *58 sion, No. 3, p. 24;' United States Maritime Commission, No. 4, p. 9; Federal Aleohol Administration, No. 5, p. 21; Department of Commerce, Bureau of Marine Inspection and Navigation, No. 10, p. 28; Fair Labor Standards Act, Wages and Hours Division, No. 12, p. 70; Civil Aeronautics Authority, No. 19, p. 41; Department of Interior, Bituminous Coal Division, No. 23, p. 45; Interstate Commerce Commission, No. 24, p. 58; Federal Power Commission, No. 25, p. 83; Securities and Exchange Commission, No. 26, p. 215.

70 C.J. Witnesses § 40.

70 C.J. Witnesses § 25; 28 U.S.C.A. § 654 ; Benedict v. Seiberling, D.C., 17 F.2d 841, 845 ; Blackmer v. United States, 60 App.D.C. 141 , 49 F.2d 523, 531 .

Right to Process for Witnesses Before Administrative Tribunals, 1 Bill of Rights Review . 131; Gellhorn and Lin-field, Politics and Labor Relations: An. Appraisal of Criticisms of NLRB Procedure, 39 Columbia Law Review 339.

Inland Steel Co. v. N.L.R.B., 7 Cir., 109 F.2d 9 .

North Whittier Heights Citrus Ass’n v. N.L.R.B., 9 Cir., 109 F.2d 76 ; N.L.R.B. v. Ed. Friederich, Inc., 5 Cir., 116 F.2d 888 .

Steel Workers Organizing Committee.

Respondent’s Brief, p. 26.

Self, 2 New Century Dictionary, p. 1654.

29 U.S.C.A. § 151 .

29 U.S.C.A. § 157 .

Respondent’s Appendix, Yol. 1, pp, 336, 337.

He seems to have had some reversed idea of res inter alios acta in mind.

9 Wigmore on Evidence (3d ed.) § 2580.

The cases are collected in.33 C.J. Judges, § 130 Necessity Obviating Rule.

The cases are collected in 33 C.J. *59 Judges, § 212 Disqualification or Inability of Regular Judge.

Putnam, Recusation, 9 Cornell Law Quarterly 1, 9.

Berkshire Employees Ass’n, etc., v. N.L.R.B., 3 Cir., 121 F.2d 235 .

Holtzoff, New Federal Procedure and the Courts, p. 131.

See also, New York Commission on the Administration of Justice, 1934 Report (Legisl.Doc.1934, No. 50, p. 300).

Wigmore on Evidence (3d ed.) § 784.

“Folly, my lords, has said that in examining the witnesses we put leading questions. The accusation is ridiculous; it is almost too absurd to deserve notice. In the first place, admitting the fact, can it be objected to a judge that he put leading questions? * * * But to say that the judge on the bench may not put what questions and in what form he pleases can only originate in that dullness and stupidity which is the curse of the age.” Lord Ellenborough, 25 Hansard PariDeb. 207.

Gellhorn and Linfield, Polities and Labor Relations: An Appraisal of Criticisms of NLRB Procedure, -39 Columbia Law Review 339; Davey, Separation of Functions and the National Labor Relations Board, 7 University of Chicago Law Review 328.

1 and 2 Wigmore on Evidence (3d ed.) §§ 198, 248.

Cardozo, Judicial Proof.

N.L.R.B. v. Botany Worsted Mills, Inc., 3 Cir., 106 F.2d 263 , noted in Administrative Law — Due Process — Propriety of Interrogatories to Members of National Labor Relations Board, 17 New York University Law Quarterly Review 269; 28 Georgetown Law Journal 416; cf. N.L.R.B. v. Biles-Coleman Lumber do., 9 Cir., 98 F.2d 16 ; Cupples Co. Manufacturers v. N.L.R.B., 8 Cir., 103 F.2d 953 ; Inland Steel Co. v. N.L.R.B., 7 Cir., 105 F.2d 246 ; N.L.R.B. v. Cherry Cotton Mills, 5 Cir., 98 F.2d 444 .

Lord Mansfield’s self-stultification doctrine seems to have been abandoned. 8 Wigmore on Evidence (3d ed.) § 2352.

Morgan v. United States, 298 U.S. 468 , 56 S.Ct. 906 , 80 L.Ed. 1288 ; Morgan v. United States, 304 U.S. 1 , 58 S.Ct. 773, 999 , 82 L.Ed. 1129 ; United States v. Morgan, 307 U.S. 183 , 59 S.Ct. 795 , 83 L.Ed. 1211 ; United States v. Morgan, 313 U.S. 409 , 61 S.Ct. 999 , 85 L.Ed. 1429 .

Morgan v. U. S., 298 U.S. 468, 481 , 56 S.Ct. 906 , 80 L.Ed. 1288 .

23 C.J.S., Criminal Law, § 1363, Jurors’ Use of Intoxicating Liquors.

Gellhorn and Linfield, Politics and Labor Relations: An Appraisal of Criticisms of NLRB Procedure, 39 Columbia Law Review 339; Davey, Separation of Functions and tbe National Labor Relations Board, 7 University of Chicago Law Review 328.

Majority opinion, 128 F.2d 49 .

The Form and Scope of the Trial Record on Appeal, 36 Columbia Law Review 1133; Searls, Appeal and Error— Statement of Facts — Narrative or Question and Answer Form on Appeal, 7 Texas Law Review 423.

“The advantage of the narrative form of record over the certified question and answer transcript lies in the diminished bulk presented to the reviewing courts. It presents in a short pro.se resume that which was actually a dramatic dialogue before the court. If it be well drawn and condensed, it may present the main issues of contention and disagreement in a digested form to the reviewing court, hut unless it be drawn by a master of sonnets it will necessarily be robbed of the innuendoes and shades of reasoning which were apparent on the stenographic transcript. * * * The determination of what to omit and what questions and answers to include as necessary, requires the greatest care, and the reduction of that which remains into a readable, adequate expression of the impressions and effect of the actual testimony in the lower court demands a mastery of prose such as few authors possess.” Stone, The Record on Appeal in Civil Cases, 23 Virginia Law Review 766, 789, 790..

Federal Rules of Civil Procedure and Proceedings of the American Bar Association Institute (1938), Rule 75, Record on Appeal to a Circuit .Court of Appeals, p. 152.

“ * * * Since the question and answer form most satisfactory fulfills the demands of judge, lawyer and litigant, the major problem is that of reducing the size of the record so as to lighten the burden on the judge. * * * Additional aids must come through auxiliary agencies such as the more extensive use of law secretaries, and more careful delimitation of the right and scope of review.” The Form and Scope of the Trial Record on Appeal, 36 Columbia Law Review 1133, 1140-1141.

Morgan v. United States, 298 U.S. 468, 481 , 56 S.Ct. 906 , 80 L.Ed. 1288 .

“In truth, our legal system contains two traditions — the one, the court tradition of personal consideration of controversies by the judge, the other the departmental tradition of institutional consideration by a corps of officers under the general supervision of the agency head. In the • court tradition the guarantee against error is chiefly the training and independent status of the judge, with a secondary guarantee in the process of appeal. In the departmental tradition, the guarantee against error is a series of automatic internal checks. In the ordinary case in an agency the decision is the product of the cooperative effort of a number of officers with the agency head (the process, indeed, sometimes being carried to excess). There is thus a constant process of checking and rechecking. Instead of relying upon the ability and integrity of a single judge, we rely upon the cooperative and cumulative efforts of a number of specialized officers.” Feller, Administrative Law Investigation Comes of Age, 41 Columbia Law Review 589, 601.

Monographs of The Attorney General’s Committee on Administrative Procedure (1940): Department of Labor, Division of Public Contracts, No. 1, p. .20, 21; Federal Communications Commission, No. 3, p. 26; Department of Commerce, Bureau of Marine Inspection and Navigation. No. 10, p. 16; Federal *63 Deposit Insurance Corporation, No. 14, p. 36; Civil Aeronautic Authority, No. 19, p. 39; Department of Interior, Grazing Service, No. 20, p. 37; Interstate Commerce Commission, No. 24, p. 32.

For instance, Department of Commerce, Bureau of Marine Inspection, and Navigation.

“Executive officers may rely on the assistance of others. Even where the duty ‘to hear’ in the first instance is imposed upon the head of a department, the evidence may be heard by others. And the conclusion will none the less be that of the head of the department, provided he adopts it as Ms own. * * * When we are dealing with appeals, there is no duty to examine personally a record on review. An executive officer, in reviewing a record on appeal, may avail Mmself of expert assistants in summarizing the testimony or the law and make their conclusions on the facts or the result of their research on the law his own.” United States v. Standard Oil Co. of California, D.C., 20 F.Supp. 427, 448, 449 . (Italics ours.)

Owens v. Battenfield, 8 Cir., 33 F.2d 753 , noted in Constitutional Law — Duo Process — Failure of Appellate Justices to Read Record, 39 Yale Law Journal 278; Constitutional Law — Due Process ; of Law: Civil Remedies — Failure of Judges of Appellate Court to Read Evidence in Record, 43 Harvard Law Review 493.

See this opinion, 128 F.2d at page 52.

Jaffe, The Report of the Attorney General’s Committee on Administrative Procedure, 8 University of Chicago Law Review 401; Prettyman, Report of the Attorney General’s Committee on Administrative Procedure, 8 Journal of the Bar Association of the District of Columbia, 231; Jennings, Final Report of the Attorney General’s Committee on Administrative Procedure, 19 Texas Law Review 436; Administrative Reform: The Report of the Attorney General’s Committee and Proposed Legislation, 9 Int.Jur. AssnMo.Bulle tin 133; Miller, Report of Attorney General’s Committee on Administrative Procedure with Respect to the Interstate Commerce Commission, 8 I.C. C.Pract. Journal 503; Hart, Final Report of the Attorney General’s Committee on Administrative Procedure, 35 American Political Science Review 501.

Cf. Local Government Board v. Arlidge, 1915 A.C. English Law Reports, 120; Carr, Concerning English Administrative Law; Report of the Committee on Ministers’ Powers (1931).

Accord: Administrative Tribunals— Necessity of Reading Testimony Taken *65 By Examiners, 1940 Wisconsin Law Review No. 1, p. 125.

Of. Bill Proposed by the Section of Judicial Administration of the American Bar Association, “To Prescribe Certain Uniform Rules of Practice Eor Administrative Agencies and to Provide a Uniform Method of Reviewing Their Determinations.

“Examination of Evidence T>y Agency. Whenever in a contested case, it shall be impracticable for all of the persons who are required by law to make or join in the decision to read or hear all of the evidence or agreed abstract thereof, such decision shall not be made until after a tentative draft of said decision, including such findings of fact as are required by paragraph (4) of this section, shall have been prepared by a member or examiner or employe of the administrative agency and shall have been furnished to all parties of record and opportunity shall have been afforded to each such party to file exceptions orally or in writing, or both, before all of the persons who are to participate in the decision of the case.” 64 American Bar Association Reports, pp. 432-433.

Administrative Law — Requirements of “Full Hearing”, 37 Michigan Law Review 597.

29 U.S.C.A. § 153 (a).