definition of a disaster, but it does come under the definition of a mine fire or a mine explosion, and the small mine is certainly a serious offender in that respect.

Mr. Lucas. I think it is quite obvious that we are not going to come to any agreement on this question. May I suggest in view of the fact that we are imposing on these gentlemen as we are that we recess for lunch.

Mr. KELLEY. We will recess for lunch until 1: 30.

(Thereupon, at 12: 15 p. m., a recess was taken until 1:30 p. m., the same day.)

AFTER RECESS

Mr. KELLEY. We will proceed.

STATEMENTS OF DONALD G. WELSH, CHIEF COUNSEL, UNITED STATES BUREAU OF MINES; M. J. ANKENY, CHIEF, COAL MINE INSPECTION BRANCH, UNITED STATES BUREAU OF MINES; HAROLD J. SLOMAN, ASSISTANT TO THE DIRECTOR OF THE UNITED STATES BUREAU OF MINES; CHARLES FERGUSON, ACTING SAFETY DIRECTOR OF THE UNITED MINE WORKERS OF AMERICA; ROBERT E. HOWE, INTERNATIONAL REPRESENTATIVE OF THE UNITED MINE WORKERS OF AMERICA; EDWARD D. SCHORR, AN ATTORNEY REPRESENTING COAL OPERATORS; AND JAMES HYSLOP, PRESIDENT OF THE HANNA COAL CO.— Resumed

Mr. LUCAS. You may have observed that I am in the minority in my committee here, and I do not utter great complaint about that. I have a number of, I think, serious questions regarding this bill, regarding the phrasing of this bill, gentlemen, which I should like to discuss with you, and until Mr. McConnell returns, I should like to ask you people who drafted it, Mr. Schorr, why did you on page 14 of the bill provide under subparagraph (a) that the Board is authorized to make such rules as are necessary for the orderly transaction of its proceedings, which shall include requirement for adequate notice of hearing to all parties? Why did you not direct the Board to follow the Administrative Procedure Act?

Mr. SCHORR. With reference to what?

Mr. LUCAS. To the proceedings of the Board.

Mr. SCHORR. Well, the Administrative Procedure Act is excepted; there is language in the bill that excepts the Administrative Procedure Act, and the reason I think it ought to be excepted is that it is vague, indefinite, and uncertain. The decisions of the courts on the Administrative Procedure Act are few and in discussing the various sections of the Administrative Procedure Act with lawyers for a considerable period of time, I rarely find that there are two of them who agree in their interpretation of it. I think that the procedure that is set up in here is far clearer and less susceptible of doubt and question as to what it means than if there were an attempt made to follow the Administrative Procedure Act.

I suppose you mean merely those provisions of the Administrative Procedure Act which have to do with adjudication? Mr. LUCAS. Yes, sir.

Mr. SCHORR. This language here seems to me to be very simple and very clear.

Mr. LUCAS. I do not deny it, but I wonder if we are not making an exception in this case which may be laying a precedent for the demand by other Government bureaus and agencies for exceptions from the Administrative Procedure Act.

Mr. SCHORR. I would not be surprised, but I think it would be a good thing.

Mr. LUCAS. You do not believe in the Administrative Procedure Act?

Mr. SCHORR. Not in the present Administrative Procedure Act.

Mr. BAILEY. Might I enter into the discussion at this point by raising the question, Why did not they use the Administrative Procedure Act in the Taft-Hartley legislation? There they departed entirely away from it, and you are using exactly the same procedure here that is in the Taft-Hartley law, so far as court review is concerned, absolutely.

Mr. SCHORR. So far as what, you say?

Mr. BAILEY. So far as court review is concerned.

Mr. SCHORR. There are plenty of existing laws which require the same sort of procedure.

Mr. BAILEY. I asked you a question yesterday, and I was advised that it was exactly the same procedures as outlined in the Taft-Hartley law. Is that true?

Mr. SCHORR. I understand it is true with reference to the requirement that the court of appeals must find substantial evidence, if that is the phase of it that you mean, but beyond that I do not see any particular likeness to the Taft-Hartley Act.

Mr. BAILEY. Let me ask you another question there. On the initial application on the part of an operator, is it not mandatory procedure just like the Taft-Hartley law? Can he not get a temporary injunction without a hearing to estop one of these orders here?

Mr. SCHORR. You mean the application to the Board of Review? Yes; the language here would permit the Board of Review to stay, which is similar.

Mr. BAILEY. I am talking about when he applies to the United States district or circuit court.

Mr. SCHORR. Yes; he can do that.

Mr. BAILEY. Then it is a mandatory procedure; is it not?

Mr. SCHORR. In what respect?

Mr. BAILEY. In that he does not have a hearing and have the interested parties present.

Mr. SCHORR. Not at all. The bill expressly provides that neither the Board of Review on an application to the Board of Review, nor the court of appeals, can stay the order closing a mine without a hearing, and without notice to the other side.

Mr. BAILEY. They cannot even tie it up temporarily?

Mr. SCHORR. Not without a hearing or a notice.

Mr. BAILEY. What do you mean by a hearing?

Mr. SCHORR. Such hearing as the court itself might deem necessary in order to pass upon the application for a stay-for a temporary stay. Both sides would have an opportunity to be heard on that.

Mr. PERKINS. In other words, the operator of the mine would receive notice and bring his witnesses in that there was no proof or no substantial proof of any danger existing.

Mr. BAILEY. Is there anything that would be an inhibition against the judge accepting the facts in the form of affidavits, like they always have done in this procedure, without the appearance of witnesses to give personal testimony?

Mr. SCHORR. The language is that there must be notice given to both sides and an opportunity for both sides to be heard. It is very clearly stated. And, incidentally, that is not peculiar to this bill. You will find that in practically all of them.

Mr. PERKINS. That is general court procedure?

Mr. SCHORR. In every statute that provides for appeals to the court of appeals;_yes.

Mr. PERKINS. It may be more feasible to hear it by affidavit than witnesses.

Mr. BAILEY. Maybe I am wrong about this, but I got the impression the other day that there were two courses of court action, one of them being an individual operator or other party concerned wanting to contest the ruling of the Board. Is it not also possible under this legislation that the fellow can go directly to the district court without coming to the Appeals Board?

Mr. SCHORR. On the question of a closing order, you mean?

Mr. BAILEY. Yes.

Mr. SCHORR. I think it is possible for the operator to go directly to a Federal district court in certain instances. If, for example, the operator wishes to contest the constitutionality of the statute under which the order was issued, I think that he could go directly to the district court. The reason for that is

Mr. BAILEY. Unless there is a question of constitutionality involved, he must come to the Board and cannot go to the court.

Mr. SCHORR. I think that he could if he alleged fraud or delusion, or if he alleged that the order to close was entirely outside of the statutory authority. In other words, he would have to go to the Board, in my judgment.

Mr. BAILEY. Let us pin it down to a for instance. Would the allegation on the part of the operators now, and the objection in their opposition to the bill that certain of the members of the Bureau of Mines or inspectors were formerly members of the United Mine Workers would that be evidence of collusion between an inspector and the United Mine Workers?

Mr. SCHORR. I think it is a question for the court to determine, and you say would that be evidence? I do not know.

Mr. BAILEY. I am just asking questions to try to get this legislation such that we are not going to have it back in here again telling us that we made a mistake.

Mr. SCHORR. I certainly hope for the same result.

Mr. WELSH. If I might make a statement here on that, I frankly do not see how that would afford a basis for a court to make a valid ruling setting aside an order. After all, some of our inspectors have also worked for the companies.

Mr. BAILEY. It would work the other way, of course.

Mr. WELSH. And I do not believe the fact that a man has worked for somebody else in the past would be evidence of any particular prejudice one way or the other, and I hardly think that a court would entertain an objection on that ground without proof. The proof would establish the fact, regardless of his company connection, that

he was acting illegally or fraudulently, and I do not think that the mere allegation of a previous company connection or a previous membership in the United Mine Workers would per se prove anything. Mr. SCHORR. I fully agree with that, and I think under the bill it is certainly legally possible for one of the members of the Board to be a mine operator, and it certainly is legally possible for one of the members of the Board to be a representative of the Mine Workers, and I certainly think that coal inspectors may have had connectionswith operators or with the Mine Workers over the years, and the question of their appointment, they are appointed by the Secretary of the Interior, they must simply have the qualifications set up in the bill, which are so many years' experience in coal mining, andi so on. But the mere fact that one of them was formerly employed would not be the final answer.

Mr. Lucas. On page 24 you have used the word "substantial" regarding evidence, which will be considered conclusive, or shall be considered conclusive regarding the findings of the Board when the matter is in the hands of the United States Court of Appeals. I hold that the word "substantial" is not enough; that the substitution of the words "preponderance of the evidence" would give greater protection to those who may be appealing a matter to the Board. Mr. SCHORR. To the Board or to the courts?

Mr. LUCAS. To the courts.

Mr. PERKINS. Will the gentleman yield for an observation at that point? I am very confident that if the gentleman's point were conceded by the committee, it would change the general rule of evidence governing the trial of cases, and now prevailing not only in the Federal courts, but in the State courts of the United States. I make that statement because we all know that the terms are used interchangeably at times, but there is a technical and a very clear distinction, which I think should be. In the trial of a case sometimes, or in deciding the question of fact, either the jury or the judge will be confronted with one witness, and he places credence in that witness' testimony. In other words, he believes what that witness is stating is true. Now, the fact that there is only one witness that he believes, that is substantial evidence, but if you come in here with a dozen witnesses, the court or the jury does not believe them, then the preponderance of the evidence would be just the opposite from what the court may believe.

Mr. KELLEY. I think Mr. Lucas is directing his questions to the gentleman at the table.

Mr. LUCAS. I cannot fail to respond to my colleague on the committee by stating he is giving an illustration which would not be applicable · in this case, because here you are giving power to a bureau or an agency to determine the facts. It is not going before a jury, in any way.. The Bureau is the only one determining the facts. It will have a volume of evidence, evidentiary matter, to present.

Mr. PERKINS. But the amendment will apply to the court as well as to the bureau.

Mr. LUCAS. That is the reason I offered it, and it authorizes the court not to be bound by simple substantial evidence, but to be bound by a preponderance of the evidence. Now, all of the evidence will, of course, have been prepared either by the Bureau or those who are: brought before it.

Mr. SCHORR. As I understand your question, Mr. Lucas, you are asking whether it would be sounder and wiser in this language on page 24 which refers to the circuit court of appeals, whether it would be wiser to say that the findings of the Board, that is the circuit court of appeals, when considering the case, that it shall be governed by this language, that the findings of the Board as to fact, if supported by substantial evidence on the record considered as a whole shall be conclusive or whether it be wiser to say that the findings of the Board as to the facts, if supported by a preponderance of the evidence? Mr. LUCAS. Yes.

Mr. SCHORR. As shown by the record, you mean?

Mr. LUCAS. Yes, sir.

Mr. SCHORR. Well, that question I think must be answered, at least I certainly think it is correct the way it is here, "substantial evidence." The Board is a legislative agency, the Board of Review. It finds the facts, and presumably it will determine where the preponderance of the evidence is in its findings of fact, just as trial courts do, and just as juries are instructed to do. But I think that you will agree with me that everywhere when appeals are provided from trial courts to the courts, in this case the circuit court of appeals, that the appeal is upon questions of law, and none of the appeal courts that I know of anywhere, State or Federal, will weigh the evidence to determine whether there is a preponderance of the evidence or not.

Mind you, I am saying they will not weigh to determine whether there is a preponderance. The question that the appeals court has before it always is a question of law, and not a question of determining fact. It is a question of law and the legal question is, is there evidence in the record sufficient to sustain the finding, and is there evidence sufficient to support the conclusion that the trial court reached.

In our case, is there evidence in the record sufficient to support the finding of the Board? That is the legal question, and the Supreme Court of the United States has in a number of cases declared that any language in an act of Congress which attempts to give to the appellate court the power and the duty to weigh the evidence and pass its judgment on the weight or the facts in the case or substitute its judgment for the trial tribunal just has no effect in law, and the appellate court will not do that. As a matter of fact, there is one Supreme Court decision which holds that where Congress attempted to do that, it is just void, and no appeal could be had in the case to the court.

Now, this is the universal rule, that substantial evidence rule, and it has been sustained by the Supreme Court time and time again, and it is because these constitutional courts, like the circuit court of appeals and the Supreme Court, other than the circuit court of appeals of the District of Columbia, and district courts of the various districts other than the district court of the District of Columbia, these district courts and courts of appeals other than those in the District are what we call constitutional courts. They are appointed pursuant to article III of the Constitution, and they only have that jurisdiction which the Constitution gives them, namely, the jurisdiction to decide judicial questions, and questions of fact are not judicial questions.

To attempt to give the court the power to pass upon the weight of the evidence in my judgment would make that provision simply void, and the court would not pursue it.

21029-52- -17