The Tariff Act of 1922 empowers the President to change rates of
duty in order to equalize differences in costs of production in
this country and abroad, but provides -- § 315(c) -- that, before
he acts, there shall have been an investigation of such differences
by the
Page 288 U. S. 295
Tariff Commission, in the making of which the Commission shall
give reasonable public notice of its hearings, and shall give
"reasonable opportunity to parties interested to be present, to
produce evidence, and to be heard." The Commission is authorized
"to adopt such reasonable procedure, rules, and regulations as it
may deem necessary."
Held:
1. The right of hearing, in the case of a foreign producer which
refused to reveal its cost of production although its domestic
competitor offered to reveal its own costs if the disclosure were
mutual, did not include the right to examine the statement of costs
which the domestic producer furnished the Commission in confidence,
or the right to inspect data, gathered confidentially by the
Commission, upon which it was obliged to base its estimate of the
foreign costs, or the right to elicit such information by
examination of the domestic producer's officers and the
Commission's agents, such confidential information being withheld
in accordance with the practice of the Commission in like cases.
Pp.
288 U. S. 303
et seq.
2. Generally speaking, the kind of hearing assured by the
statute to parties interested is one of the same order as has
customarily, but optionally, been allowed by congressional
committees in the tariff-making process. Pp.
288 U. S. 305,
288 U. S.
319.
3. That the "hearing" assured does not include a privilege to
ransack the records of the Commission and to subject its
confidential agents to an examination of all that they have learned
is demonstrated by the tariff-making practice of Congress, the
history of the passing of this statute, the history of the
Commission's predecessors, and of the Commission itself, and its
practice under the statute with the implied approval of both the
President and Congress, and also by the contrast between the
generality of § 315(c) and the explicit provision for
cross-examination and for inspection of papers, found in § 381,
relating to matters of appraisal before the Board of General
Appraisers. Pp.
288 U. S.
303-319.
4. The word "hearing," applied to administrative proceedings,
may have one meaning or another according to the context and
subject matter. An administrative hearing that may result in an
order impinging on legal rights, such as those affecting the rates
and conduct of public service corporations, is very different from
a hearing before the Tariff Commission, which merely reports and
recommends. P.
288 U. S.
317.
5. No one has a legal right to the maintenance of an existing
tariff rate. P.
288 U. S.
318.
Page 288 U. S. 296
6. An applicant for increase of duty is not required by the
statute or by the Commission's rules to include a statement of his
costs of production in his application. P.
288 U. S.
320.
7. The Commission, in conducting an investigation, is free to
act on its own motion, and the function of an application, when
filed, is not that of a pleading in a lawsuit. P.
288 U. S.
319.
8. The function of the Commission is that of an adviser of the
President or Congress, not that of an arbiter between adverse
litigants. P.
288 U. S.
321.
9. If the Commission is under any duty to make disclosure of
costs, the origin and measure of the duty are to be found in the
implied duty to do whatever may be necessary to make the hearing
fair. P.
288 U. S.
321.
10. Refusal to make such disclosure is an exercise of
discretionary power, and could not be impeached if not shown to be
arbitrary. P.
288 U. S.
321.
11. Such a refusal was not arbitrary when actuated by the
Commission's settled policy of withholding the confidential
information when its publication might work hardship or injustice
or hamper the work of the Commission in the case of an importer who
insisted that all the confidential data be disclosed without
defining or seeking anything less, and who was unwilling to use
reasonable effort to make disclosure of the costs of his principal
abroad. Pp.
288 U. S.
321-323.
12. The Commission has power to interpret its own rules by
administrative practice. P.
288 U. S. 325.
13. That part of its rules which excepts from examination by the
parties before it such portions of its records as relate to "trade
secrets and processes" has been interpreted by the Commission as
keeping costs secret for the protection of producers, both foreign
and domestic, unless disclosure is so cloaked that the identity of
the producers will be effectively disguised. P.
288 U. S.
324.
20 C.C.P.A. (Cust.) 27; T.D. 45,674, affirmed.
Certiorari, 287 U.S. 586, to review the affirmance of a judgment
of the United States Customs Court sustaining certain duties over
the protests of the importer. For earlier phases of the same
dispute,
see 274 U. S. 106.
Page 288 U. S. 297
MR. JUSTICE CARDOZO delivered the opinion of the Court.
On May 6, 1924, the President of the United States determined
and proclaimed that an increase in the rate of duty on sodium
nitrite was necessary to equalize the differences in the costs of
production in the United States and the principal competing
country, Norway, and that, to that end, the duty should be
increased from 3 cents per pound to 4 1/2 cents per pound. The
proclamation was made after an investigation and report by the
United States Tariff Commission under the flexible tariff
provisions of the Tariff Act of 1922. Tariff Act of September 21,
1922, c. 356, § 315, 42 Stat. 858, 941-943. After the new rate of
duty had thus gone into effect, there were new importations of
sodium nitrite at the Port of New York. The duty was assessed by
the customs officers in accordance with the proclamation, and
protests were filed by the petitioner, which is the exclusive agent
within the United States of the leading exporter to this country of
the commodity affected. The protests were made upon the ground that
the Tariff Commission, in investigating the costs of production in
the United States and Norway, had not given the petitioner the
hearing prescribed by the statute, and that all that followed was
of no validity. A judgment of the Customs Court overruling the
protests (T.D. 44,824, 59 Treas.Dec. 921) was affirmed by the Court
of Customs and Patent Appeals, 20 C.C.P.A. (Customs) 27; T.D.
45,674. A writ of certiorari brings the case here.
In October, 1922, the American Nitrogen Products Company
submitted to the Tariff Commission a request for a report and
recommendation to the President that the duty on sodium nitrite be
increased 50 percent. It
Page 288 U. S. 298
stated in this request that, with every reasonable effort to
economize, it had been unable to compete with the foreign
manufacturers, and had been forced to close its plant. In response
to this request, the Commission, on March 27, 1923, ordered that an
investigation be made, declared that a public hearing would be held
on a date thereafter to be fixed, and gave public notice of its
order. The Commission then proceeded to the business of
investigation. From the chief producers of sodium nitrite in the
United States (the American Nitrogen Products Company and another),
the agents of the Commission received the fullest measure of
disclosure as to the costs of production and other details of the
business. The information as to costs was subject to a pledge of
secrecy, the manufacturers taking the position, to which the
Commission acceded, that costs were trade secrets, to be withheld
from competitors. The chief foreign producers were two -- the
Norsk-Hydro, a Norwegian company, represented by the petitioner,
and the Badische-Anilin of Germany. Both foreign producers refused
to supply the investigators for the Commission with any statement
of costs, or to permit access to their records. The Norwegian
company wrote afterwards in a cablegram to the petitioner: "On
principle, we always refuse publish cost price, consequently did
not furnish investigators any information enabling them calculate
cost price." The Commission was hindered, but not baffled. Its
investigators went to Norway, and, consulting other sources of
information, made an estimate of cost as best they could. By July
20, 1923, the preliminary investigation was over, and the
Commission was ready for a public hearing. It gave public notice on
that date that, on September 10, 1923, all parties interested would
be given an opportunity to appear before the Commission, to produce
evidence, and to be heard with regard to differences in the cost of
sodium nitrite and any other facts and conditions affecting the
inquiry.
Page 288 U. S. 299
At the time thus appointed, the petitioner appeared, represented
by its counsel. It made a motion at the beginning that it receive a
complete copy of the request or application for an increase of
rates. The copy already furnished to it was not complete, in that
the details of the costs of production at the applicant's factory
had been left out. The president of the applicant protested that
the information as to costs had been given under a promise to hold
it confidential, and the chairman of the Commission thereupon
assured him that the promise would be kept. The request of the
importer was accordingly refused. The hearing then proceeded; the
president of the American Nitrogen Products Company appearing as a
witness. He gave general information as to the state of the
industry, showing by his testimony that the foreign producers were
selling their product in this country at a lower price than they
were selling it in their home markets, and showing also that, by
reason of a difference in the manufacturing process in this country
and abroad, the foreign producers were able to manufacture sodium
nitrite as a byproduct, and thus to dispose of it far more cheaply
than was possible here. A change of the domestic plant in
adaptation to the foreign process would involve prohibitory
expense. Counsel for the importer was allowed to cross-examine as
to everything brought out at the public hearing. He was not
allowed, however, to extract from the witness a statement of the
costs of production; the witness again protesting that disclosure
of these costs, though it had been made to the Commission in the
preliminary investigation, ought not to be made in public for the
use of a competitor. At the end of the examination, there was an
adjournment of the hearing until September 26.
In the interval, there were other happenings that bear on the
merits of the controversy. On September 15, 1923, the Commission
made public a report or summary of its
Page 288 U. S. 300
information, still omitting, however, any statement as to the
costs of production at the applicant's domestic plant. On September
11, it received a letter from the importer's counsel renewing his
demand for a complete copy of the application and demanding at the
same time that "every particle of evidence gathered by the
Commission or its representatives" be submitted to his inspection,
and that he be accorded the privilege of examining any and all
witnesses, including the field agents of the Commission, with
reference thereto. On September 24, the Commission wrote to counsel
refusing his request for a disclosure of "every particle of
evidence," but stating that the American Nitrogen Products Company
had agreed to disclose its cost of production data if the
opposition, the Norwegian Nitrogen Products Company, would furnish
cost data for the Norwegian product. The importer did not accept
this offer. It did not present any excuse for failing to accept it.
It did not even state that it had made any effort to induce its
principal abroad to supply it with the necessary data. It paid no
attention to the suggestion that disclosure should be mutual, and
stood upon its rights, whatever they might be.
On September 26, the hearing went on again. Counsel for the
importers submitted copies of cablegrams exchanged between his
client and its Norwegian principal. The cablegram from the client
informed the principal of the estimate of costs of production in
Norway contained in the summary prepared by the Commission. The
answering cablegram stated that the estimate was far too low, but
confirmed the report of the investigators that information had been
refused on the ground that the costs were confidential. That part
of the cablegram has been quoted already. T he chairman, responding
to a request for an adjournment of thirty days, made inquiry of
counsel whether definite figures would be obtained from Norway
Page 288 U. S. 301
in return for the extension. To this, counsel retorted that he
was not offering any consideration, nor joining in any barter, but
"relying strictly upon the statute." The outcome of the colloquy
was an order for an adjournment until October 6. Before this
adjournment was taken, counsel submitted five separate requests.
Request number one was that his client
"have reasonable opportunity to inspect and to be heard upon all
evidence which has been offered in this case not deemed by the
Commission trade secrets or not in fact trade secrets."
Request number two was to inspect and to be fully heard upon
"all the evidence in the possession of the Commission as to the
cost of power in the United States in the production of nitrite."
Number three was a like request with reference to the number of
laborers employed by the American Nitrogen Products Company and the
wages paid. Number four was a like request with reference to the
capital invested in its plant. Number five was a request that the
experts of the Commission be produced for cross-examination with
reference to the information collected by them in the course of the
inquiry, and that the importer be permitted to offer testimony and
to be heard in opposition thereto.
At the adjourned hearing on October 6, the Commission announced
its ruling with reference to these requests, notice of the ruling
having been previously conveyed to counsel for the importer. The
decision was, in substance, that data gathered by the Commission
with the understanding that they were to be treated as confidential
would be withheld, that the investigators working for the
Commission would not be required to produce such data or to be
cross-examined about them, but that, as to all these subjects of
inquiry, the importer would be permitted to offer any evidence that
it was able to present, and to be heard in oral and written
argument with reference thereto.
Page 288 U. S. 302
Upon the announcement of this ruling, counsel for the importer
stated that he would offer no testimony on behalf of his client,
but would thereafter file a brief.
On December 12, 1923, before the Commission had reported to the
President, the petitioner applied to the Supreme Court of the
District of Columbia for a writ of mandamus directing the
Commission to disclose the information sought. The petition was
dismissed, the court ruling that the action of the Commission had
been in conformity with law. An appeal to the Court of Appeals
followed, but, while it was pending, the Commission made a report
to the President, and upon the basis of that report the President
issued his proclamation for an increase of the duty. The Court of
Appeals expressed an opinion, not called for by its judgment, that
the information should have been given. It decided, however, that
the petition had become moot by force of the action of the
President (
U.S. ex rel. Norwegian Nitrogen Products Co. v.
United States Tariff Commission, 55 App.D.C. 366, 6 F.2d 491),
and so did this Court.
United States ex rel. Norwegian Nitrogen
Products Co., Inc. v. United States Tariff Commission,
274 U. S. 106. The
stages through which the controversy has come to us again have
already been described.
The Tariff Act of 1922 (c. 356, § 315, 42 Stat. 858, 941) gives
authority to the President to increase or decrease the rates of
duty specified in the act if he finds upon investigation that
increase or decrease is necessary in order to equalize the
differences in the cost of production in the United States and
elsewhere. It provides, § 315(c), that, in ascertaining these
differences,
"the President, insofar as he finds it practicable, shall take
into consideration (1) the differences in conditions in production,
including wages, costs of material, and other items in costs of
production of such or similar articles in the United States and in
competing foreign countries; (2) the differences in the wholesale
selling prices of domestic and foreign articles in the principal
markets of the United States; (3)
Page 288 U. S. 303
advantages granted to a foreign producer by a foreign
government, or by a person, partnership, corporation, or
association in a foreign country, and (4) any other advantages or
disadvantages in competition."
This provision is followed by others designed to give protection
against hasty or ill-considered changes. There shall be no
proclamation under the authority of the statute until an
investigation to assist the President has been made by the United
States Tariff Commission, which is "authorized to adopt such
reasonable procedure, rules, and regulations as it may deem
necessary." Coupled with these general directions is a mandate more
particular, which is the petitioner's chief reliance.
"The Commission shall give reasonable public notice of its
hearings, and shall give reasonable opportunity to parties
interested to be present, to produce evidence, and to be
heard."
Section 315(c).
The decision of this case hinges upon our answer to the question
whether the petitioner has been "heard" in accordance with the
statute. Does the requirement of a hearing mean that every producer
or importer affected by a tariff may explore at will the data
collected by the Commission as to the capital, the wages, the cost
of material and manufacture, in the business of any other person
similarly affected, and may cross-examine investigators and
competitors upon the data thus laid bare? If something less than
this is exacted, is there still a minimum of disclosure without
which the purpose of the hearing will be thwarted altogether, and
was this minimum attained by what was done by the Commission
here?
1. History, analogy, and administrative practice point with
sureness to the conclusion that letters of marque have not been
issued to every producer or importer affected by a tariff to
capture knowledge of the business of every rival so affected in all
the intimate details uncovered to the investigating officers.
The appeal to history is a threefold one: to the history of the
process of tariffmaking by Congress and congressional
Page 288 U. S. 304
committees; to the history of this statute in its progress
through the Houses, and to the history of this investigating
Commission and of others that came before.
The process of tariffmaking by Congress and congressional
committees is not different in essentials from that for legislation
generally. If the bill has gone to a committee, the practice has
been general to give the privilege of a hearing to businessmen and
others affected by its provisions. The hearing is not one that may
be demanded as of right. A change of the tariff laws, like a change
of any other statute, is not subject to impeachment on the score of
invalidity, though notice to those affected has been omitted
altogether. Luce, Legislative Procedure, p. 143,
cf. Buttfield
v. Stranahan, 192 U. S. 470.
Even so, the privilege is now so fortified by practice that it may
fairly be taken for granted. But the hearing when given is not
similar to a trial as conducted in a court. The proponents of a
bill and the contestants make their statements for and against,
bringing forward such confirmatory documents, trade journals,
letters, governmental reports, and what not, as they believe to be
important. The kind of information thus supplied can be gathered
from the proceedings of the committees that reported the Tariff Act
in question, the act of 1922, as well as from those leading up to
the tariff acts of other years. In none of these congressional
hearings has the practice ever prevailed of permitting the
advocates of a measure to cross-examine the opponents, or the
opponents the advocates, or of compelling the committee itself to
submit to an inquisition as to data collected by its members
through independent investigation. The committee determines for
itself whether its sessions shall be public or private.
"Investigations [in Congress] often proceed behind closed doors,
for the manifest reason that otherwise some witnesses would not be
frank, perhaps would not attend, putting themselves, if
Page 288 U. S. 305
possible, beyond the reach of the committee."
Luce, Legislative Procedure, p. 144. It is all a matter of
discretion. What is done by the Tariff Commission and the President
in changing the tariff rates to conform to new conditions is in
substance a delegation, though a permissible one, of the
legislative process.
Hampton & Co. v. United States,
276 U. S. 394;
Buttfield v. Stranahan, supra; Field v. Clark,
143 U. S. 649. The
inference is therefore a strong one that the kind of hearing
assured by the statute to those affected by the change is a hearing
of the same order as had been given by congressional committees
when the legislative process was in the hands of Congress, and no
one else. To be sure, there has been a change of sanction. What was
once a mere practice has been converted into a legal privilege. But
the limits of the privilege were not meant to be greatly different
from those of the ancient practice that had shaped the course of
legislation.
We have said that the inference is a strong one, yet, of course,
it is far from conclusive, and might even be inadequate if it were
considered by itself. The history of the statute as it passed
through the two Houses of the Congress supplies confirmatory
evidence. The bill in its early stages empowered the President to
change tariff rates, but said nothing whatever as to the manner in
which the preliminary investigation should be made. 62 Cong.Rec.
pt. 7, p. 7108, pt. 11, pp. 11,155, 11,156, 11,193. A letter from
President Harding to the chairman of the Finance Committee of the
Senate recommended that Congress name the Tariff Commission as the
source of information and recommendation upon which the President
might proclaim a change. 62 Cong.Rec. pt. 11, p. 11,211. Several
amendments embodying this recommendation were proposed in each
chamber of the Congress. Nowhere in the long debates that followed
is there a suggestion by anyone that witnesses or others appearing
in the
Page 288 U. S. 306
inquiry should be heard in any other way than according to the
customary procedure for investigating bodies. The first amendment
named the Tariff Commission as the investigator, but gave no
directions as to the mode of action. 62 Cong.Rec. pt. 11, pp.
11,229, 11,232. A second provided that the Commission "shall give
such opportunity as it deems proper for the presentation of
material facts in each case and arguments thereon." 62 Cong.Rec.
pt. 11, p. 11,229. These provisions aroused the fear that, at
times, there might be no hearing, or hearings at which only one
side would be permitted to appear. 62 Cong.Rec. pt. 11, p. 11,231.
A third amendment, proposed in the Senate, recast the statute by
providing that
"the Commission shall give reasonable public notice and shall
give reasonable opportunity to parties interested to be present and
to produce evidence and to be heard,"
which is in the statute as enacted, and by providing also "said
hearings shall be public" and the President shall publish with his
findings "the hearings and testimony." 62 Cong.Rec. pt. 11, pp.
11,231, 11,232. These last provisions were omitted in conference,
and the section was thus amended to read as it stands today. 62
Cong.Rec. pt. 12, p. 12,627. The omission may have been unwise, but
it certainly was not inadvertent. The managers on the part of the
House reported (62 Cong.Rec. pt. 12, p. 12,660):
"The action of the conferees eliminates the provision of the
Senate amendment that the Tariff Commission hearings shall be
public and that the President shall make the findings, hearings,
and testimony in all proceedings public as soon as practicable
after the issuance of a proclamation."
The change was criticized in the Senate (62 Cong.Rec. pt. 12, p.
12,888), but, in the face of the criticism, it was written into the
law.
If Congress was unwilling to prescribe a requirement that the
"hearings shall be public," or that the President shall publish the
testimony when announcing his decision,
Page 288 U. S. 307
it is hard to believe that it intended every member of the
public affected by an increase or decrease of the duty to inspect
and copy all the records and data collected by the Commission, and
to cross-examine the investigators as well as the producers or
importers appearing at the hearing. If a privilege so far-reaching
was to be accorded as a matter of right, there would be a publicity
far greater than any that would result from throwing the doors of
the hearings open to all who wished to enter. By the Revenue Act of
1916 (c. 463, § 706, 39 Stat. 756, 797), the Commission and its
agents are given access to any document pertinent to the subject
matter under investigation in the possession of anyone engaged in
the production, importation, or distribution of the commodity
affected, with power to inspect and copy, to summon witnesses, and
to administer oaths. If the hearings are to have the scope for
which the petitioner contends, all this information is subject to
the call of every business rival unless it comes within the
description of "trade secrets or processes." Revenue Act of 1916, §
708. It happens in this case that the number of competitors is
small. Cases may arise in which it will mount into the hundreds.
Any one of these competitors will be free, in the view of the
petitioner, to pry without hindrance into the business of the
others, for everything collected by the Commission will have the
quality of a public record. Not only will there be a privilege to
inspect whatever is of record, but the process, it is said, may be
carried even farther, by examination and cross-examination as to
whatever is thus discovered. The statute does not say that the
parties affected by the duty may be present during the preliminary
investigation by the agents of the Commission. They are to be
present at a hearing, which may be public or private as the
Commission shall determine. The statute does not say that they are
to have an opportunity to produce evidence and to be heard to
whatever extent they may desire. It says
Page 288 U. S. 308
that they are to have a reasonable opportunity, and this subject
to the power of the Commission to adopt such reasonable procedure,
rules, and regulations as it may deem necessary. Nothing in the
statute suggests a belief of the lawmakers that every producer or
importer was to be viewed, like a party to a lawsuit, as the
adversary of every other, with privilege of examination and
cross-examination extended through the series. "There must be a
limit to individual argument in such matters if government is to go
on." Holmes, J., in
Bi-Metallic Inv. Co. v. Colorado,
239 U. S. 441,
239 U. S.
445.
Our discussion of the significance of history as an aid to the
construction of the statute will be inadequate if it is confined to
the history of hearings by congressional committees and to the
amendments of the bill in its progress through the Houses. There is
need to consider also the history of this Commission before the Act
of 1922, and that of earlier commissions organized for kindred
purposes.
The powers of the President under the flexible tariff provisions
of the Act of 1922 differ in degree, rather than in kind, from
powers that have long been his. By an act of March 3, 1815 (3 Stat.
224), the President was empowered to give effect to a repeal of
duties upon imports whenever he was "satisfied that the
discriminating or countervailing duties" of the foreign nation
affected, "so far as they operate to the disadvantage of the United
States," had been abolished.
See Field v. Clark,
143 U. S. 649,
143 U. S. 685.
Powers very similar were conferred in later years.
See,
e.g., Act of March 3, 1817, c. 39, 3 Stat. 361; Act of January
7, 1824, c. 4, 4 Stat. 2, 3; Act of May 31, 1830, c. 219, 4 Stat.
425; Act of June 26, 1884, c. 121, 23 Stat. 57;
Field v. Clark,
supra, pp.
143 U. S.
686-689. [
Footnote
1] The Tariff
Page 288 U. S. 309
Act of 1890 went farther than those before it. Whenever the
President became satisfied that the government of any country
producing and exporting certain enumerated articles had imposed
duties upon the agricultural or other products of the United States
which he found to be reciprocally unequal and unreasonable, he was
to have power to suspend the provisions of the tariff law whereby
importation of the enumerated articles had previously been free. 26
Stat. 567, 612, c. 1244. Broader still was the delegation of power
under the Tariff Act of 1909, which set up a system of maximum and
minimum rates with permission to the President to adopt the one set
or the other. 36 Stat. 11, 82, c. 6. Under none of these statutes
was executive action conditioned upon an inquiry and report by any
officer or department. In the fulfillment of his duties, the
President consulted whatever sources of information appeared to be
appropriate, and, when satisfied as to the facts, made proclamation
of the action.
The first statute for the appointment of a commission to deal
with the problem of the tariff was enacted in 1882. 22 Stat. 64, c.
145.
See F. W. Taussig, Tariff History of the United
States (8th ed.) p. 231. The commission, which was to be an
investigating body merely, was established as an aid to Congress,
rather than the President. It was to report at the next session of
Congress what changes it thought desirable. After the expiration of
its life, neither President nor Congress received official aid that
was more than desultory or occasional till a body styled the Tariff
Board was organized by President Taft in 1909. Taussig,
supra, pp. 405, 481. This board was established under a
provision of the Tariff Act of that year, which, by § 2, gave the
President a choice between two sets of duties -- a maximum and a
minimum.
"To secure information to assist the President in the discharge
of the duties imposed upon him by this section, and the
Page 288 U. S. 310
officers of the Government in the administration of the customs
laws, the President is hereby authorized to employ such persons as
may be required."
36 Stat. 83, c. 6. The function of the new board was to
investigate and advise.
See Taussig,
supra, p.
424.
The Tariff Board went down at the end of 1912 through the
failure of the Congress to provide the ways and means. Taussig,
supra, 424, n. 1. No similar body was created till the
organization of the present Tariff Commission in 1916. Act of
September 8, 1916, c. 463, §§ 700, 702, 703, 706, 707, 39 Stat.
756, 795, 796, 797; 19 U.S.Code, §§ 91, 96, 97, 100, 101.
Cf. Taussig,
supra, p. 481. The function of the
Commission as first organized was to investigate the administration
and fiscal and industrial effects of the customs laws of this
country and other kindred problems, to put at the disposal of the
President, the Committee on Ways and Means of the House of
Representatives, and the Committee on Finance of the Senate,
whenever requested, all information at its command, and to make
such investigations and reports as might be requested by the
President or by either of the committees, or by either branch of
Congress. In aid of these purposes and duties, it was empowered to
subpoena witnesses and conduct hearings. The result of an
investigation might be a recommendation to Congress that would lead
to the increase or decrease of existing duties. There is nothing to
show that, in conducting these investigations, it permitted any
interested person to inspect its collected data or to cross-examine
others. On the other hand, it does affirmatively appear, set forth
at large in its reports to Congress, that it withheld even from
that body disclosure of the costs of production of individual
producers, confining its reports to averages and symbols that gave
no token of identity. Census of Dyes and Coal Tar Chemicals
Page 288 U. S. 311
for 1917, p. 11; Ninth Annual Report, U.S. Tariff Commission, p.
17; Sixteenth Annual Report, p. 19. [
Footnote 2] From the beginning, there has been an
administrative policy to treat the costs or investments of
identified producers as akin to a trade secret, with the result
that disclosure, even if not strictly within the prohibition of the
statute (Revenue Act of 1916, § 708), was forbidden in the view of
the Commission by persuasive considerations of fair dealing and
expediency. Congress did not then protest, and indeed never has
protested, though Congress was the very body for whose benefit the
investigation had been made and the reports transmitted. In
providing, as it did in 1922, that a reasonable opportunity for a
hearing should be given to anyone affected by a change, it had no
thought, we may well believe, to prohibit reservations and
confidences that would be allowed against itself.
The administrative practice before the Act of 1922 might be too
desultory and brief to fix the meaning of the statute if it did not
find support, and that unmistakable and ample, in administrative
practice afterwards. Consistently through all its hearings, the
Commission has acted upon the principle that the cost of production
will not be made known to competitors if the producers are so few
that there can be no disclosure of the cost without disclosing the
identity of those producing at that cost. A report by the
Commission, submitted by the government in connection with the
briefs, explains the practice that has been followed and the
reasons supporting it. At times, the reports by the Commission have
shown costs identified by number or by letter. This has been
done
Page 288 U. S. 312
in those instances, and those only, where producers were so many
that identity was cloaked. Even then, it was often necessary to
combine the costs in one country, for example, in Eastern
Venezuela, with those in other countries, or to combine items of
one class, for example, advertising expenses, with items of another
class, such as administrative expenses. At times, the Commission
has resorted to the expedient of showing costs in the form of
averages. It has applied the same methods impartially to residents
and to foreigners. In one of its reports, the foreign costs of
Danish and Dutch producers were published in combined form in order
to avoid disclosure of the costs in Denmark, the principal
competing country. Finally, a third group of reports exists where
the cost data are not given at all, either directly or indirectly.
This has been the form where there were fewer than three companies,
or where the number was very small and one predominated in the
industry. The reports, taken collectively, show variations in
degree as to the kind and fullness of the information imparted to
the public, the variations depending in every instance upon the
estimate by the Commission of the effect of the disclosure.
[
Footnote 3] What is more
significant than any variations in the reports is a strain of
uniformity that runs through all alike. Not in one of them is there
a disclosure of the individual data brought together by the
Commission through the work of its investigators. Not in one is
there the suggestion that the reasonable opportunity for a hearing
conceded by the statute carries with it the opportunity to inspect
"every particle of evidence" collected by the Commission, and to
examine and cross-examine the men who have collected it.
Page 288 U. S. 313
Acquiescence by Congress in an administrative practice may be an
inference from silence during a period of years. In this instance,
the inference is strengthened when it is recalled that, during some
of those years, the Commission was under fire. In 1926, there was a
resolution by the Senate for the appointment of a committee to
investigate the workings of the flexible tariff. S.Res. 162, 69th
Congress. The inquiry was to have
"particular reference to the regulations and procedure of the
Tariff Commission, the powers exercised and the functions performed
by said Commission, and to the institution, investigation, hearing,
and decision of cases"
arising under § 315 of the Act of 1922. United States Senate
Hearings, Investigation of Tariff Commission, 1926, 1927. In the
investigation that followed, the procedure and methods of the
Commission were thoroughly explored. One of its members, Mr.
Glassie, in his statement to the Committee, explained that it was
impossible for the hearing to be "so conducted as to permit of the
open disclosure of the individual evidence of costs." United States
Senate Hearings,
supra, p. 529. Indeed, without such
explanation, the reservation of these and kindred confidences was
made abundantly apparent by records and reports. At the close of
the inquiry, the Committee reported to the Senate. Senate Report
No. 1325, 70th Congress, First Session, May 28, 1928. A majority of
the Committee advised that the flexible provisions of the tariff
act be repealed for the reason chiefly that the President was
already overburdened with executive duties, and that the Commission
be reorganized as a congressional agency. There was no criticism of
the practice whereby the costs of individual producers were treated
as confidential. A minority report advised that the Commission be
continued, and with it the provision for a flexible tariff. Such,
it seems, was also the judgment of Congress as a whole, for,
despite the majority report of the
Page 288 U. S. 314
Committee, the Commission exists today. Tariff Act of 1930, c.
497, 46 Stat. 590, 696, §§ 330-336. [
Footnote 4]
The administrative practice developed before the Act of 1922 has
thus been continued and confirmed with the
Page 288 U. S. 315
tacit approval of the President and the acquiescence of the
Congress. As late as January 28, 1933, after this cause had been
submitted to the court, the signs of acquiescence and approval were
strikingly renewed. On that day, there was a resolution by the
Senate directing a report by the Commission in respect of problems
of the tariff. 76 Cong.Rec. pp. 2877, 2878. One of the subjects to
be reported was
"the range and variety of costs of production related to the
quantities produced in each cost range in the United States and in
competing foreign countries for each industry investigated by the
Tariff Commission since 1920 (so far as can be given without
disclosing the costs of individual concerns)."
The history of the methods of this investigating body is thus
carried down to date. True indeed it is that administrative
practice does not avail to overcome a statute so plain in its
commands as to leave nothing for construction. True it also is that
administrative practice, consistent and generally unchallenged,
will not be overturned except for very cogent reasons if the scope
of the command is indefinite and doubtful.
United States v.
Moore, 95 U. S. 760,
95 U. S. 763;
Logan v. Davis, 233 U. S. 613,
233 U. S. 627;
Brewster v. Gage, 280 U. S. 327,
280 U. S. 336;
Fawcus Machine Co. v. United States, 282 U.
S. 375;
Interstate Commerce Commission v. New York,
N.H. & H. R. Co., 287 U. S. 178. The
practice has peculiar weight when it involves a contemporaneous
construction of a statute by the men charged with the
responsibility of setting its machinery in motion; of making the
parts work efficiently and smoothly while they are yet untried and
new.
Fawcus Machine Co. v. United States, supra.
To the external aids that are drawn from history and analogy and
administrative practice, there is to be added another that may be
said to be internal -- the aid to be derived from the wording of
related sections. In the same tariff act that makes provision in
these general words for a hearing by the Commission as a step in
the development
Page 288 U. S. 316
of the process of legislation, there is another section
prescribing the remedy available to an importer after the
legislative process has been completed, and the question is whether
the merchandise has been properly appraised. Act of September 21,
1922, c. 356, § 501, 42 Stat. 966, 19 U.S.Code § 381. The remedy in
such circumstances is an appeal from the decision of the appraiser
to the Board of General Appraisers. The Board shall assign the
appeal to one of its members, who shall give reasonable notice of
the time and place of the hearing,
"at which the parties and their attorneys shall have an
opportunity to introduce evidence and to hear and cross-examine the
witnesses of the other party and to inspect all samples and all
papers admitted or offered as evidence."
This is the way that Congress spoke when it wished to attach to
an administrative proceeding the incidence of a trial in court.
There are times when the obscurity of one section as contrasted
with the clearness of another may be ascribed to inattention. The
need is not perceived of filling up the outlines because what is
within them is assumed or carelessly overlooked. Not so in this
case, where Congress had its attention sharply directed to the fact
that plain speech was needed if a hearing was to mean so much.
Until it spoke thus plainly, the importer was denied the right to
cross-examine and inspect, and this though the privilege of a
hearing had been his for many years. It took an explicit statute to
overcome the long established policy of the government whereby
witnesses testifying to values were to be protected from publicity.
[
Footnote 5] If the
dissatisfied
Page 288 U. S. 317
importer
"is afforded such notice and hearing as enables him to give his
views and make his contention in respect of the value of his goods,
he cannot complain."
Origet v. Hedden, 155 U. S. 228,
155 U. S. 238;
Auffmordt v. Hedden, 137 U. S. 310.
[
Footnote 6] For years, this
opportunity for a statement was his only legal privilege, though
the effect of the appraisal had a direct relation to his own
interests and burdens, as contrasted with the interests and burdens
that concern the public generally, though the controversy, in
brief, was closer to the field of judicature than to that of
legislation.
A fortiori, the privilege is no greater in
such a controversy as this, where legislation, rather than
judicature, supplies the paramount analogy.
We are not unmindful of cases in which the word "hearing," as
applied to administrative proceedings, has been thought to have a
broader meaning. All depends upon the context. There is no denial
of the power of Congress to lay bare to the business rivals of a
producer, and indeed to the public generally, every document in the
office of this Commission and all the information collected by its
agents. The question for us here is whether there was the will to
go so far. The answer will not be found in definitions of a hearing
lifted from their setting and then applied to new conditions. The
answer will be found in a consideration of the ends to be achieved
in the particular conditions that were expected or foreseen. To
know what they are, there must be recourse to all the aids
available in the process of construction, to history and analogy
and practice, as well as to the dictionary. Much is made by the
petitioner of the procedure of the Interstate Commerce Commission
when regulating the conduct or the charges of interstate carriers,
and that of the Public Service Commissions of the states when
regulating the
Page 288 U. S. 318
conduct or the charges of public service corporations. The
Tariff Commission advises; these others ordain. There is indeed
this common bond that all alike are instruments in a governmental
process which, according to the accepted classification, is
legislative, not judicial.
Prentis v. Atlantic Coast Line
Co., 211 U. S. 210,
211 U. S. 226;
Keller v. Potomac Electric Power Co., 261 U.
S. 428,
261 U. S. 440.
Cf. People ex rel. Central Park, M. & E. R. Co. v.
Willcox, 194 N.Y. 383, 386, 87 N.E. 517. Whatever the
appropriate label, the kind of order that emerges from a hearing
before a body with power to ordain is one that impinges upon legal
rights in a very different way from the report of a commission
which merely investigates and advises. The traditionary forms of
hearing appropriate to the one body are unknown to the other. What
issues from the Tariff Commission as a report and recommendation to
the President may be accepted, modified, or rejected. If it happens
to be accepted, it does not bear fruit in anything that trenches
upon legal rights. No one has a legal right to the maintenance of
an existing rate or duty. Neither the action of Congress in fixing
a new tariff nor that of the President in exercising his delegated
power is subject to impeachment if the prescribed forms of
legislation have been regularly observed. It is very different,
however, when orders are directed against public service
corporations limiting their powers in the transaction of their
business. They may be challenged in the courts if the effect is to
reduce the charges to the point of confiscation.
Smyth v.
Ames, 169 U. S. 466.
They may be challenged for other reasons when they are without
evidence supporting them, and are merely arbitrary edicts.
Interstate Commerce Comm'n v. Union Pac. R. Co.,
222 U. S. 541,
222 U. S. 547;
Manufacturers' Ry. Co. v. United States, 246 U.
S. 457,
246 U. S. 481;
Northern Pac. Ry. Co. v. Dep't Public Works, 268 U. S.
39,
268 U. S. 44;
Chicago, M. & St.P. Ry. Co. v. Public Utilities
Comm'n, 274 U. S. 344,
274 U. S. 351.
Cf. Sharfman, The
Page 288 U. S. 319
Interstate Commerce Commission, vol. II, p. 424. The "hearing"
that such Commissions are to give must be adapted to the
consequences that are to follow, to the attack and the review to
which their orders will be subject.
Interstate Commerce Comm'n
v. Louisville & N. R. Co., 227 U. S.
88,
227 U. S. 93;
St. Louis-S.W. Ry. Co. v. Interstate Commerce Comm'n,
264 U. S. 64;
Atchison, T. & S.F. Ry. Co. v. United States,
284 U. S. 248. The
Commerce Act, as it stands today, and kindred statutes in the
states, are instinct with the recognition of a duty to give a
hearing of such a kind that the courts will understand why a
commission has acted as it has if their supervisory powers are
afterwards invoked for enforcement or revision. No such inference
is to be drawn from the act before us now.
The tokens of intention set down in this opinion have a force in
combination that is denied to any one of them alone. They impel us
to the holding that, within the meaning of this act, the "hearing"
assured to one affected by a change of duty does not include a
privilege to ransack the records of the Commission and to subject
its confidential agents to an examination as to all that they have
learned. There was no thought to revolutionize the practice of
investigating bodies generally, and of this one in particular.
Hearings had once been optional. By the new statute, they became
mandatory. The form remained the same.
2. Our second question must now be answered: if something less
is due than inspection without limit, is there a minimum of
disclosure without which the purpose of a hearing will be thwarted
altogether, and was this minimum attained by what was done by the
Commission here?
The argument for the petitioner portrays the American producer
in the position of a plaintiff tendering an issue to others which
they are called upon to meet like defendants in a lawsuit. The
picture is misleading, for, in truth,
Page 288 U. S. 320
there is no lawsuit, nor anything akin to it.
See the
testimony of Mr. Glassie in the investigation by the Senate (U.S.
Senate Hearings, p. 516). The Commission, in conducting an
investigation, is free to act on its own motion. Indeed, it often
does so. If it is moved by someone else, the investigation is still
its own, the request amounting to a mere suggestion which it is
free, in its discretion, to accept or to reject. There is nothing
in its rules whereby applicants are placed under a duty to state
the figures of their costs, still less to divide the total into
items. On the contrary, the rules provide that "an application is
not required to be in any special form." It
"must state the name, legal residence, business address,
occupation, and business connection of the applicant, and contain a
short and simple statement of the relief sought and the grounds
therefor."
If it is deemed to be insufficient, "the Commission may permit
the applicant to amend the same or to submit evidence orally or in
writing." A statement by an applicant that it has been compelled to
close its plant because it has been unable to hold its own against
foreign competition by reason of disparity of costs in this country
and abroad will present a hardship to be investigated if the
Commission believes that investigation will be helpful. Certainly
there is nothing in any provision of the statute whereby the
opponents of an increase may insist that something more than this
be shown before they may be called upon to come forward and
oppose.
The difficulty is not fully met, however, when we hold that a
statement of the costs is not required at the beginning to set the
process of investigation going. The question remains whether a
statement in some form, even though fragmentary and stripped of
detail, may be necessary later on. The persons affected by the
change of duty are entitled to a hearing, and this involves, so it
is said, such a modicum of information, such a disclosure of the
costs in the form of percentages of the market price or
Page 288 U. S. 321
otherwise, as to give notice of the ultimate facts to be
contested and overcome. What is required in that view is not a bill
of particulars, nor a disclosure of the evidence, but a definition
of the issue which is to be the theme of the debate.
The argument thus stated ignores the historic function of the
Commission as the adviser of the President or Congress in the
business of legislation, and views it as an arbiter between adverse
parties litigant. This is to subject its action to the test of an
unreal analogy. If the Commission is under a duty to make
disclosure of the costs at all, the origin of the duty and its
measure are to be found, we think, in this -- that, since a hearing
is required, there is a command by implication to do whatever may
be necessary to make the hearing fair. A duty so indeterminate must
vary in form and shape with all the changing circumstances whereby
fairness is conditioned. The appeal is to the sense of justice of
administrative officers, clothed by the statute with discretionary
powers. Their resolve is not subject to impeachment for unwisdom,
without more. It must be shown to be arbitrary.
Arbitrary in this instance it certainly was not, and that for
several reasons.
(a) The Commission did not withhold disclosure from the
petitioner with any sinister purpose to make the hearing
ineffective. It was moved by the belief that a way could not be
found of stating the costs without identifying them with the
business of a particular producer. In so acting, it conformed to
its own precedents and practice, and to those of such Commissions
generally. If it was under a duty to give a hearing similar to one
in court -- it was bound to expose everything, details as well as
summaries. There was then no middle ground. If it was under a duty
to give the kind of hearing that was fair in all the circumstances,
it was free to shape its course within reasonable limits by its own
conception of the promptings
Page 288 U. S. 322
of policy and fairness. It would have kept within the statute
even though it had made the hearings private, and had refrained
from the publication of anything, either the records of its agents
or the testimony of witnesses. 62 Cong.Rec. pt. 11, p. 11, 232.
Instead, it made the hearings public, and exposed everything to
view except only when publication was likely, in its judgment, to
result in hardship or injustice. Ninth Annual Report, United States
Tariff Commission, p. 13.
See the Rules of the Commission
quoted
infra in this opinion. There is indeed a
possibility that the work of such a body would be seriously
hampered if producers were not made to feel that information which
in the thought of many is ranked as confidential would be withheld
from prying eyes. [
Footnote 7]
Particularly might that be so when inquiry would have to be made of
manufacturers abroad, not subject to compulsion. [
Footnote 8] Businessmen may exaggerate the
importance of secrecy in matters of this kind. Their sensitiveness
is to be reckoned with, whether it be reasonable or not.
(b) The attack upon the ruling of the Commission as a denial of
a fair hearing in a primary and basic sense is weakened even more
when consideration is directed to what the petitioner then asked
for.
There was no appropriate motion or objection that brought to the
notice of the Commission a claim that, apart from any details,
there was a certain minimum of information due to the petitioner
which the Commission was withholding. There is no reason to believe
that this minimum was then an object of desire, or that it would
have been helpful if conceded. The only statement by the petitioner
approaching such a notice was a request that it be furnished with a
complete, and not a deleted, copy of
Page 288 U. S. 323
the application for relief. The record makes it plain, however,
that included in the application were supporting facts and figures
giving the costs in fullest detail. The petitioner did not suggest
at any time that it would be satisfied with less. On the contrary,
its request for a copy of the application was accompanied or
quickly followed by a motion setting forth in five subdivisions the
particulars exacted, and culminating in a demand that "every
particle of evidence" collected by the Commission be held subject
to inspection. That was its attitude, made manifest in many ways to
the members of the board. That was again its attitude on the
petition to the court for a writ of mandamus to hold the Commission
to its duty. There would be no justice at this late day in
invalidating the proceedings for the failure to supply the
petitioner with some average of aggregate which it did not state
that it cared for, which even now is not explained, and which, in
all likelihood, if given, would have added little to its knowledge.
[
Footnote 9] Businessmen, as a
rule, are not wholly in the dark as to the ways of their
competitors.
(c) For still another reason, the ruling made by the Commission
was not an arbitrary refusal to give the kind of hearing that, in
the circumstances of this particular inquiry, was reasonable and
fair.
The unwillingness of the petitioner to submit the costs of its
Norwegian principal, or to make any effort to submit them, has
closed its mouth to the complaint that the refusal to disclose the
costs of its American competitor has nullified the report and the
proclamation based upon it.
The Norwegian principal, as we have seen, declined to give any
information to the agents of the Commission, and left them to make
up their estimate of the foreign
Page 288 U. S. 324
costs from indirect and imperfect sources. The petitioner, to be
sure, was an agent, not a principal, yet it was the exclusive agent
in the United States, and plainly in a relation that gave it
influence, if not authority. Not once during the hearing did it
offer to make an effort to obtain the foreign costs and submit them
to the Commission under a pledge of confidence or otherwise. Its
attitude was one of indifference so complete as to vary hardly at
all, or so at least the Commission might reasonably infer, from one
of purposeful obstruction.
This attitude of obstruction is not to be ignored in determining
whether the information to be imparted to the petitioner was
curtailed by the Commission in any arbitrary way. One who seeks
equity must do it.
The question in that aspect becomes this: does justice require
that the costs of a domestic producer shall be made known to an
importer who is unwilling to use reasonable effort to make
disclosure of the costs of his principal abroad? A mind neither
perverse nor arbitrary in its judgments might think the answer
should be "no."
There is left a final question. The petitioner makes the point
that the Commission, by its own rules, has spread its records open
to the inspection of interested parties, and that there was a
violation of those rules by denying an inspection here. The
argument may not prevail. A rule of the Commission does indeed
provide as follows:
"Parties who have entered appearances shall, prior to the filing
of briefs, have opportunity to examine the report of the
Commissioner or investigator in charge of the investigation and
also the record except such portions as relate to trade secrets and
processes."
The evidence leaves no room for doubt that the exception stated
in this rule has been construed by the Commission as keeping costs
secret for the protection of producers, both foreign and domestic,
unless disclosure is so cloaked that the identity of the producers
will be effectively disguised.
Page 288 U. S. 325
Disguise has been found to be impossible when the producers are
but two or three. The phrase "trade secrets and processes" is not a
new one in the law. It occurs in statutes and judicial decisions,
as well as in the rule. The Commission was without competence by
any decision it might make to fix the meaning of the phrase as used
by Congress or the courts. It had power, however, to interpret its
own rules and any phrase contained in them.
Evans v.
Backer, 101 N.Y. 289, 292, 4 N.E. 516;
Duncan's
Heirs v. United States, 7 Pet. 435,
32 U. S.
451-452. This it has done by an administrative practice
too clear to be misread.
The judgment is
Affirmed.
MR. JUSTICE McREYNOLDS is of the opinion that the judgment
should be reversed.
[
Footnote 1]
For other instances,
see Comer, Legislative Functions
of National Administrative Authorities, pp. 64
et seq.
[
Footnote 2]
In the investigations by the Tariff Board of 1909, the practice
apparently was the same. H. C. Emery, The Tariff Board and Its
Work, p. 14, Government Printing Office, 1910.
[
Footnote 3]
The government has exhibited to the Court the original reports,
as well as a summary of their contents.
[
Footnote 4]
There is instruction in the experience of England and
Australia.
The English Import Duties Act of 1932 imposed upon an "Import
Duties Advisory Committee," as well as upon an existing Board of
Trade, duties of investigation and advice akin to the respondent's.
28 Chitty's Annual Statutes, pt. I, pp. 93, 94, 99, 100.
Confidential information is protected as follows (§ 10):
"(1) No information relating to any individual business, being
information which has been obtained by the Committee or the Board
of Trade by virtue of the provisions of this Act, shall, without
the previous consent in writing of the owner for the time being of
that business, be published or disclosed except to members of the
Committee or to a Government Department requiring that information
for the purposes of this Act, or to a person authorized by the
Committee or by a Government Department and requiring that
information for those purposes, or except for the purposes of a
prosecution under this Act."
Australia also has a Tariff Board. At first, there was no
requirement of public hearings. Tariff Board Act of 1921. The Board
states in its report for the year 1923:
"It will readily be understood, when representatives of
industries or manufacturers are called upon to give definite
details of their costs and manufacture, such information must be
given confidentially."
Third Annual Report of Australian Tariff Board, June, 1923, p.
23. A requirement of public hearings was imposed by an amendment of
the statute. Tariff Board Act of 1924, § 3. It then became
necessary that applicants for increases or decreases "present their
cases publicly and on oath." Seventh Annual Report of Australian
Tariff Board, June, 1928, p. 14. This does not mean, however, that
there is no restraint upon publicity. The same statute provides
that, upon the objection of a witness, evidence which the Board is
satisfied is of a confidential nature may be presented in private
if the Board considers it desirable in the public interest to do
so. Annals of the American Academy of Political and Social Science,
vol. CXLI, January, 1929, Tariff Problems of the United States, pp.
83, 84. The Board evidently considers cost figures to be
confidential. Third Annual Report,
supra. They were so
considered, it seems, in the debates in Parliament. 108 Parl.
Debates, 3968, 4003 (1924).
[
Footnote 5]
"It is due to merchants and others called to give such
information that their statements shall be taken in the presence of
official persons only. It must often occur that persons in
possession of facts which would be of value to the appraisers in
determining market values are deterred from appearing or testifying
by the publicity given to reappraisement proceedings."
See the Treasury Instructions of June 9, 1885, set
forth in full in
Auffmordt v. Hedden, 137 U.
S. 310.
[
Footnote 6]
See Freund, Administrative Powers over Persons and
Property, p. 162,
and compare pp. 158, 160.
[
Footnote 7]
See the Reports of the Australian Tariff Board,
supra.
[
Footnote 8]
See the minority report of the Investigating Committee
of the Senate under the 1926 resolutions, Senate Report No. 1325,
supra at p. 7.
See also Senate Hearings, p.
1086.
[
Footnote 9]
As to other methods available of ascertaining the cost of
production with approximate accuracy,
see the testimony
before the Senate Investigating Committee, p. 1086.