§ Legislative History
Legislative History
80th Congress ) SENATE ( Report
2d Session ) ( No. 1559
REVISING, CODIFYING, AND ENACTING INTO LAW TITLE
28 OF THE UNITED STATES CODE, ENTITLED
“JUDICIAL CODE AND JUDICIARY”
__________JUNE 9 (legislative day, JUNE 1), 1948.--Ordered to be printed
__________MR. WILEY, from the Committee on the Judiciary, submitted the
following
REPORT
[To accompany H.R. 3214]
THE Committee on the Judiciary, to whom was referred the bill (H.R. 3214) to revise, codify, and enact into law title 28 of the United States Code, entitled “Judicial Code and Judiciary,” having considered the same, do now report the bill to the Senate favorably, with amendments, and recommend that the bill, as amended, do pass.
The purpose of the bill is to codify and revise the laws relating to the Federal judiciary and judicial procedure.
No revision of these laws has been made since 1911, and the Judicial Code enacted in that year did not include all the laws upon the subject.
A tremendous amount of additional legislation in this field has been enacted since 1911. Consequently, there is now a great mass of statutory material upon this subject, much of which is archaic, ambiguous, conflicting, and to an unascertained extent repealed by implication by later statutes. These statutes are scattered through many volumes of the Statutes at Large which are not easily accessible to the bench and bar. Moreover, many of the statutes relating to procedure appearing in the books have been rendered wholly obsolete by the Federal Rules of Civil Procedure prescribed by the Supreme Court. This situation results in the loss of much time and effort on the part of the bench and bar in determining what is the present law in this field, always at the risk of possible error.
It is evident, therefore, that a thorough codification and revision of the statutes relating to the judiciary and its procedure is very much in the public interest in order that the law in this important field may be clear, certain, and readily available.
The bill H.R. 3214 accomplishes these desirable results. The statutory material presently in force has been arranged in the bill in a logical and consistent way, rendering it easily ascertainable. Existing inconsistencies and ambiguities have been removed and obsolete and archaic provisions eliminated or modernized.
By enacting this bill into positive law as title 28 of the United States Code, that title will thereby become the law rather than merely presumptive evidence of the law, and reference to prior volumes of the Statutes at Large will be rendered wholly unnecessary.
Many noncontroversial improvements have been effected which, while individually small in themselves, add up to a very substantial improvement in and modernization of the law relating to the Federal judiciary. At the same time great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval.
The bill with the amendments proposed by the committee includes all pertinent laws to January 5, 1948, and the bill provides for it to become effective September 1, 1948, thus allowing an interval in which the bench and bar may become acquainted with the revised arrangement of the law.
The report of the Committee on the Judiciary of the House of Representatives upon the bill (H.Rept. No. 308, 80th Cong., 1st sess.) describes in detail the scope of the revision, the manner in which it was carried out by the House Committee on the Judiciary and its predecessor, the House Committee on Revision of the Laws, and the principal improvements effected. Appended to the report are the revisers' notes to each section, together with accompanying tables. These explain in great detail the source of the law and the changes made in the course of the codification and revision.
As passed by the House of Representatives, the bill included provisions covering the Tax Court of the United States. These proposed to transfer that court from the Internal Revenue Code, title 26, United States Code, to the Judicial Code. This proposed transfer of the Tax Court to the Judicial Code has proved controversial with respect to the court and as to those who are entitled to practice before it. Since every effort has been made to avoid controversial matters in this revision, the committee recommends that all Tax Court provisions be omitted from this bill.
One of the changes proposed by the House of Representatives with respect to the Tax Court provided that Tax Court decisions should be reviewable on appeal to the same extent as similar decisions of the district courts. This in effect repeals the contrary rule laid down in Dobson v. Commissioner of Internal Revenue (320 U.S. 489). This proposal met with unanimous approval at the hearings on the bill held by your committee. It is recommended that the House amendment be retained. In view of the elimination of the Tax Court from the bill, this must be accomplished by an amendment of the Internal Revenue Code. Such an amendment is included among the committee amendments.
The amendments proposed by the committee, together with the reasons for each, are listed below.
80th Congress ) HOUSE OF REPRESENTATIVES ( Report
1st Session ) ( No. 308
REVISION OF TITLE 28, UNITED STATES CODE
__________APRIL 25, 1947.--Ordered to be printed
__________MR. ROBSION, from the Committee on the Judiciary, submitted the
following
REPORT
[To accompany H.R. 3214]
THE Committee on the Judiciary submits the following report in explanation of the bill (H.R. 3214) to revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary,” and recommends that the bill do pass. The present bill has been substituted for an earlier bill (H.R. 2055) on which hearings were held and contains changes recommended by the subcommittee.
PRELIMINARY STATEMENT
SCOPE OF REVISION
The source material of this revision was the Judicial Code of 1911 constituting, in part, title 28 of the United States Code. To this were added appropriate sections from other titles which could be transferred without impairing the framework of the official United States Code prepared by the former Committee on Revision of the Laws of the House and enacted by Congress in 1926.
This revision includes all applicable laws in effect March 10, 1947.[FN1]
[FN1] As finally enacted into law, the revision includes all applicable laws in effect January 5, 1948.
Before actual revision was begun a scientific plan was assembled. This included:
1. The complete text of title 28, United States Code, 1940 edition, and the latest supplement thereto.[FN2]
[FN2] References throughout this report are to the 1940 edition of the United States Code. As finally enacted, the revised title, as it included all 1946 and 1947 laws affecting Title 28, superseded all corresponding sections of the United States Code, 1946 edition.
2. Pertinent provisions from other titles of the code.
3. Complete text of original acts set out in the Statutes at Large.
4. Applicable constructions by the courts.
5. Notes based upon a careful examination of the Code of Federal Regulations and law reviews.
6. Exhaustive historical notes.
7. Notes on the Rules of Civil Procedure and Rules of Criminal Procedure promulgated by the Supreme Court.
8. Suggestions from the bench and bar.
Revision, as distinguished from codification, required the substitution of plain language for awkward terms, reconciliation of conflicting laws, repeal of superseded sections, and consolidation of related provisions.
HISTORY OF THE JUDICIAL CODE
The first law establishing the Federal courts and regulating their jurisdiction and procedure was enacted at the first session of the First Congress. This law of September 24, 1789 (ch. 21, 1 Stat. 73), is popularly known as the Judiciary Act of 1789.
This first judicial code was very brief. It comprised only 35 sections. But the Nation itself was small, with a population of only 3,000,000.
From the beginning the body of the law relating to the courts and judicial officers and their procedure developed gradually by unrelated acts, without any real effort to reconcile conflicting provisions of successive enactments.
At the outbreak of the Civil War the Statutes at Large numbered 12 volumes. That war and the reconstruction period which followed gave impetus to Federal legislation.
The whole of the expanding body of Federal law was carefully examined by the commissioners empowered by Congress in 1866 to prepare the Revised Statutes of the United States. Obsolete and superseded provisions, which had accumulated during the 88-year period from 1789 to the date of the final approval of the Revised Statutes in 1877, were repealed. Inconsistent provisions were reconciled and all existing laws relating to the courts were analyzed, revised, and consolidated into title XIII, of the Revised Statutes, entitled “The Judiciary,” comprising 21 chapters and 564 sections.
The Judicial Code of 1911 was enacted into law by act March 3, 1911 (ch. 231, 36 Stat. 1152), after long and exhaustive study by the same commission that drafted the Criminal Code of 1909.
In preparing the Judicial Code of 1911 the commissioners discarded the analysis and arrangement used in the Revised Statutes. Statutes were revised and consolidated, obsolete laws were repealed and improvements were introduced. The old circuit courts were abolished and their jurisdiction transferred to the district courts.
Thirty-six years have passed since the enactment of the Judicial Code of 1911. That is a longer time than elapsed between the revisions of 1878 and 1911. It comprises a period which witnessed unprecedented changes on the national scene. During those years the population of the United States leaped from 91,000,000 to 140,000,000 and the Nation twice experienced the tremendous social changes that accompany world wars. It is a tribute to Congress and to the draftsmen of the Judicial Code of 1911 that our judicial system has withstood the impact of these terrific changes. However, there is little doubt that the changes of the past 36 years make imperative this revision of the Judicial Code.
STAFF OF EXPERTS ASSEMBLED
The former Committee on Revision of the Laws obtained the services of the West Publishing Co., of St. Paul, Minn., and the Edward Thompson Co., of Brooklyn, N.Y., thus bringing to this undertaking the combined editorial resources and experiences of the two leading law publishing firms. These are the companies which, under the supervision of that committee, prepared the original United States Code in 1926, and have edited the Code and its supplements for the Congress since that time.
In addition to their staffs of editors, these companies engaged as chief reviser, W.W. Barron, Esq., former Chief of the Appellate Section of the Criminal Division of the Department of Justice and also secured the services of Frank J. Parker, assistant United States attorney for the eastern district of New York.
The former Committee on Revision of the Laws exercised close and constant supervision over this work through its general counsel, Charles J. Zinn, of the New York and District of Columbia bars, and its special counsel, John F.X. Finn, member of the Law Revision Commission of New York and recognized expert on procedure. The work has been continued and completed under the supervision of the Committee on the Judiciary.
ADVISORY COMMITTEE
An impartial advisory committee composed of outstanding men with years of practical experience at the bar and on the bench materially assisted in the work of revision with their wise counsel and advice. This public-spirited group consisted of Judge Floyd E. Thompson, former chief justice of the Illinois Supreme Court and former president of the Chicago Bar Association; Hon. Justin Miller, former associate justice of the United States Court of Appeals for the District of Columbia; Judge John B. Sanborn, judge of the United States Circuit Court of Appeals for the Eighth Circuit; Hon. Walter P. Armstrong, of the Memphis bar and former president of the American Bar Association; and Hon. John Dickinson, of the Philadelphia bar, former assistant Attorney General of the United States.
This advisory committee was ably assisted by Judge John J. Parker, senior circuit judge of the United States Circuit Court of Appeals for the fourth circuit, who rendered valuable service as a judicial consultant. The committee was also assisted by two special consultants each an expert in the field of Federal procedure: Judge Alexander Holtzoff, United States district judge, District Court for the District of Columbia; and Prof. James W.
Moore, of Yale University. Besides the invaluable assistance these special consultants were able to render as a result of their years of experience in Federal jurisprudence, they materially assisted in the technical task of singling out for repeal or revision statutory provisions made obsolete by the Federal Rules of Civil Procedure.
JUDICIAL CONFERENCE COMMITTEE
The Judicial Conference Committee on the Revision of the Judicial Code, appointed by Hon. Harlan Fiske Stone, late Chief Justice of the United States, worked in close cooperation in preparation of this bill. This committee consisted of Judge Albert B. Maris, judge of the United States Circuit Court of Appeals for the third circuit; Judge Clarence G. Galston, United States district judge for the eastern district of New York; and Judge William F.
Smith, United States district judge for the district of New Jersey. These judges are entitled to high commendation for their unselfish and able assistance.
SUPREME COURT COMMITTEE
The work of revision was greatly facilitated and advanced through the cooperation of a committee of Supreme Court justices appointed by the Chief Justice. This committee consisted of the late Chief Justice Stone and Associate Justices Frankfurter and Douglas. It was most cooperative in the solution of problems of concern to that Court.
The afternoon sessions of the advisory committee meetings at Washington on December 5, 1945, and again on April 3, 1946, were honored by visits of this committee.
COMMITTEE MEETINGS
Four times during the course of revision the advisory committee met with the committee of the Judicial Conference, consultants, members of the revision staff and counsel for the former Committee on Revision of the Laws--once at Brooklyn, N.Y.; again at Hershey, Pa.; and twice at Washington, D.C. At each meeting the revision staff submitted a draft of the proposed text of this bill, supported by reviser's notes explaining in detail each change and the reasons therefor. This procedure assured careful examination of every section. At each meeting some sections were recommitted to the reviser for further study and each member of both committees and the staffs of consultants and counsel actively cooperated in procuring a final draft acceptable to all. The former Committee on Revision of the Laws had these preliminary drafts printed and distributed to the Federal bench and bar for its criticisms and suggestions.
COOPERATION WITH BENCH AND BAR
When work first began on title 28, letters were mailed to all Federal judges, United States attorneys, deans of law schools, and presidents of bar associations, explaining the revision and asking for suggestions and criticisms. Many letters received by the committee in response contained recommendations for the improvement of the judicial code. These were catalogued, studied and made available to the revision staff. They were invaluable in making possible a thorough revision.
COOPERATION WITH FEDERAL AGENCIES
As the work of the revision progressed, the advice of Government officials was sought regarding problems affecting particular departments or agencies. It was found advisable to submit the text of proposed sections and prepare inquiries concerning them. The officials in charge of the respective department or agency which might be affected by this revision were kept fully informed. Copies of the several drafts were sent to them from time to time.
The committee is especially grateful to the former counsel of the House Committee on the Judiciary, Charles E. Long, Jr., and to the Director of the Administrative Office of the United States Courts, Hon. Henry P. Chandler, and his assistant, Hon. Elmore Whitehurst, each of whom attended several of the advisory committee meetings and cooperated to the fullest. It is also most appreciative of the gracious assistance rendered by Hon. Charles Elmore Cropley and Thomas E. Waggaman, Clerk and Marshal of the United States Supreme Court, respectively, for arranging accommodations for the advisory committee in the Supreme Court Building and for constructive suggestions regarding the revision.
CLASSIFICATION AND NUMBERING
The first step in revision was the preparation of a preliminary analysis--the framework upon which to build the new title. In drafting this outline the old system of classification was discarded and a modern subject matter arrangement was substituted. The material was divided into six major categories. Part I provides for organization of courts; part II treats of the attorneys and marshals; part III covers court officers and employees; part IV sets forth the provisions on jurisdiction and venue; part V deals with procedure; and part VI takes up particular proceedings.
Within these parts, the subject matter was arranged under appropriate chapter heads. The numbering system adopted makes adequate provisions for future legislation. Chapters were given odd numbers, leaving the even numbers available for related chapters containing future acts. Sufficient section numbers were left between chapters to accommodate such growth.
STYLE
A clear and uniform style was an important aim of this revision. Concise, clear, and direct expressions were preferred to verbose, redundant and circuitous language. This is fully indicated in the reviser's notes in the appendix to this report.
CONSOLIDATION OF SECTIONS
In many instances similar sections were consolidated without making fundamental changes. For example three short sections in chapter 43 consolidate 51 sections of existing law. Section 507 consolidates 14 sections and sections 456 and 553 consolidate 8 sections each.
By such consolidations bulk was reduced and repetitious overlapping provisions telescoped with a resulting improvement of style and substance.
EXAMPLES OF CHANGES IN LAW
The District of Columbia is included as a judicial circuit of the United States in section 41 and as a judicial district in section 88. Under sections 43 and 132 its court of appeals and district court are, in all respects, made equal as to jurisdiction and powers with corresponding courts in other circuits and districts respectively.
The name “United States Court of Appeals” was substituted for “United States Circuit Court of Appeals” as a more accurate descriptive title. See section 43. The title “chief judge” was substituted for “senior judge” with reference both to circuit and district judges as more descriptive of their administrative functions. See sections 45 and 136. Similar nomenclature is used with reference to the Court of Claims, sections 171 and 172; Court of Customs and Patent Appeals, sections 211 and 212; Customs Court, sections 251 and 252; and Tax Court, section 273.[FN3]
[FN3] Section 273, which related to the Tax Court, was eliminated by Senate amendment. See Senate Report No. 1559.
Hawaii and Puerto Rico are included as judicial districts of the United States, since in matters of jurisdiction, powers, and procedure, they are in all respects equal to other United States district courts. See sections 91 and 119.
The annual October term of the Supreme Court is preserved by the revision but as to all other courts the time, terms, and sessions are to be fixed by rule or order of court. The orderly and convenient dispatch of judicial business will not, under this revision, be circumscribed by artificial requirements for holding terms at arbitrary times having no relation to the condition of the calendar, the needs of the district or circuit or the volume of business.
The provisions of title 16, United States Code, 1940 edition, Conservation, relating to appointment, powers and duties of national park commissioners, are incorporated in chapter 43 of the revision. These commissioners are United States commissioners in all respects. Those who are appointed on a salary basis are continued on that basis. (See sec. 634.)
Some minor changes of existing law were necessary in revising provisions relating to jurisdiction of district courts. These are noted in the reviser's notes under sections 1332, 1335, 1338, 1344, 1346, 1352, and 1359.
So also, minor changes were made in the provisions regulating the venue of district courts in order to clarify ambiguities or to reconcile conflicts. These are reflected in the reviser's notes under sections 1391-1406.
The procedure for removal of causes from State courts to Federal courts is greatly simplified. (See secs. 1441-1450.) Under existing law the removal petition must be filed with the State court which has no discretion to pass upon it but must forward the record to the Federal court. Revised section 1446 provides for the filing of the removal petition in the United States district court in the first instance. This is in accordance with recommendations of United States District Judges Calvin W. Chesnut and T. Waties Waring and approved by the Committee of the Judicial Conference on the Revision of the Judicial Code.
The Tax Court, for the first time, is brought into the Judicial Code. (See sections 271-275, 911, 1621, 2551-2559.) [FN4]
[FN4] All provisions relating to the Tax Court were eliminated by Senate amendments. See Senate Report No. 1559. Qualifications of jurors in Federal courts are made uniform in all districts by section 1861 in conformity with recommendations of the Judicial Conference of the United States.
The principal changes in provisions relating to fees of United States commissioners or marshals were made in sections 633 and 1921. The fee list of each is considerably simplified and abbreviated.
The reviser's note under section 1871 contains the following recommendation of the advisory committee to Congress:
The advisory committee to the former House Committee on Revision of the Laws in revision of this title recommended a careful study of the compensation of witnesses and jurors. Furthermore, provision should be made for the subsistence of jurors and witnesses serving at such distance from their homes as precludes daily travel to and from the court.
The Supreme Court of the United States under section 2073 is given the same power to make Admiralty Rules which it has with respect to Rules of Civil and Criminal Procedure.
Important changes in the mechanics of procedure for review were necessary for good revision. The most important of these is the provision of section 2109 for disposition of cases in the Supreme Court where a quorum of qualified Justices is not available. This section is in part adapted from section 29 of title 15, Commerce and Trade, and section 45 of title 49, Transportation, of the United States Code.
The second paragraph of the revised section provides for the disposition of cases for which a quorum is not available and in which one appellate review has been had by affirmance of the judgment below with the same effect as upon affirmance by a divided court. This will facilitate disposition of such litigation.
The habeas corpus chapter has been rewritten to conform with legislation pending in Congress and approved by the Judicial Conference of the United States. (See H.R. 4232, 4233, and S. 1451, 1452, 79th Cong.)
AMENDMENTS AND REPEALS
The text of the revision of title 28 of the United States Code is entirely comprised in section 1 of the bill.
Section 2 (p. 165 of the bill) is a saving provision which preserves the status of the chief justices of the United States Court of Appeals for the District of Columbia and the Court of Claims, and the presiding judge of the Court of Customs and Patent Appeals as chief judges of their respective courts.[FN5]
Sections 3-31 are amendments of sections in titles other than title 28, which will make such sections conform with provisions of this revision.
Section 32 makes applicable the terms, United States court of appeals, United States district court, chief judge, chief justice, and presiding judge to all statutes in which the older terminology still remains.[FN5]
Section 33 provides against any inference of a legislative construction by reason of the classification of any section in a particular chapter or by reason of the captions or catch lines used throughout the title.
Section 34 is the usual separability provision.
Section 35 and 36 provide for the specific repeal of all laws incorporated in the revision and other superseded and obsolete provisions relating to the courts. The schedule was carefully checked and rechecked many times.
This method of specific repeal will relieve the courts of the burdensome task of ferreting out implied repeals.[FN5]
[FN5] As amended by the Senate, section 2 contains a similar provision with reference to the chief justice of the United States District Court for the District of Columbia, and contains other saving provisions; section 32 also renames the circuit court of appeals in accordance with the revision; section 35 repeals two sections of the Canal Zone Code; section 36 amends a section of the Internal Revenue Code; section 37 amends a specified Act relating to the determination of war claims; section 38 provides for an effective date of September 1, 1948; and section 39 provides for repeals. See Senate Report No. 1559.
REVISER'S NOTES AND TABLES
The reviser's notes are keyed to sections of the revision and explain in detail every change made in text. References to court decisions are supplied wherever necessary or appropriate.
To facilitate the work of all those interested in the revision, reference tables are incorporated. These show the distribution of sections from the United States Code, Judicial Code, Revised Statutes, Statutes at Large, District of Columbia Code, and other sources of this revision.
REPORT BY THE ATTORNEY GENERAL
The following letter from the Attorney General was received by the chairman of the committee:
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., April 17, 1947.
HON. EARL C. MICHENER,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, D.C.
MY DEAR MR. CHAIRMAN: This is in response to your request for my views concerning a bill (H.R. 2055) to revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary.”
The present United States Code, consisting of 50 titles, is a compilation of permanent statutory law of the United States. While it is presently extensively valuable for practical purposes, its usefulness is somewhat circumscribed by the fact that all of it has never been codified. Accordingly, the bulk of its text establishes only prima facie the text of the statutory law of the United States.
The bill under consideration is part of the plan for the enactment of the United States Code into law. The bill would take this step with respect to title 28 of the code. While the Judicial Code of 1911 (36 Stat. 1087) has had some amendments since its enactment, many of the provisions now contained in title 28 are not a part of the Judicial Code.
The bill would eliminate much of the archaic language employed in the old statutes. By substituting plain language for awkward terms, reconciling laws, omitting superseded sections, and consolidating provisions which deal with the same subject, the bill would modernize and bring up to date the laws relating to the judiciary and to judicial procedure in much the same manner as the Federal Rules of Civil Procedure have done in their field. In addition, as has frequently been pointed out, title 28 would become a law itself instead of only prima facie law, so that lawyers would be spared the work of going to the original statute when it is essential to have the exact text of a particular law. Each of these objectives is commendable and desirable.
You will remember the discussions between members of the staff of the committee and of the Department last month at which the Department made some suggestions with reference to minor corrections of errors and omissions then in the draft of the bill being considered by your committee.
I am advised that this conference agreed upon a number of corrections and changes and that these corrections and changes have now been incorporated in the bill with the one exception of the portion declaring the Tax Court to be “a court of record.”
Further consideration of the problem relating to the Tax Court leads me to the conclusion that the incorporation in chapter 13, section 271, et seq., of the bill declaring the administrative agency now known as the Tax Court of the United States to “constitute a court of record known as the United States Tax Court” is not objectionable.
You are therefore advised that the Department of Justice has no objection to the incorporation in the bill of appropriate language declaring the Tax Court of the United States to be a court of record.
Sincerely,
TOM C. CLARK,Attorney General
HEARING BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE JUDICIARY COMMITTEE
ON
H.R. 1600 [FN*] and H.R. 2055*
March 7, 1947
[FN*] H.R. 1600 was a bill to revise Title 18 of the United States Code, entitled “Crimes and Criminal Procedure”, and H.R. 2055 was a bill to revise Title 28 of the United States Code, entitled “Judiciary and Judicial Procedure”. This was the final hearing but the bills were supplanted by H.R. 3190 and H.R. 3214, respectively, before passage in the House of Representatives.
__________The subcommittee met in room 346, Old House Office Building, at 10:30 a.m., Hon. John M. Robsion (chairman) presiding.
Mr. Robsion. The committee will come to order.
I assume all of you present know that this hearing is called to consider H.R. 1600. It is proposed to revise, codify, and enact into positive law title 18 of the United States Code, entitled “Crimes and Criminal Procedure.”
We are also considering in this hearing H.R. 2055. It is proposed to revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary.”
Now, for the information of some of you who perhaps have not followed these proceedings before in the Seventy-ninth Congress, Mr. Keogh, who was the chairman of the Committee on Revision of the Laws, introduced H.R. 2200. That measure was considered for a long time, was favorably reported by the Committee for Revision of the Laws in the House, and was passed by the House.
It went over to the Senate, and they did not reach consent.
I believe it was reported favorably in your Committee on Revision of the Laws, Mr. Keogh?
Mr. Keogh. Yes.
Mr. Robsion. And inasmuch as the question of jurisdiction was involved in some of the matters contained in the bill, it was also referred to this Judiciary Committee of the House, and I believe they made a favorable recommendation, unanimously, as I recall.
Mr. Keogh and Mr. Gossett were members of the Committee on the Revision of the Laws of the Seventy-ninth Congress and for some time before that.
Now, H.R. 1600 is an identical bill with H.R. 2200, except at the time that that was acted upon, it did not include all of the laws of the Seventy-ninth Congress pertaining to crimes and criminal procedure.
This bill included those in the Seventy-ninth Congress that were not included in H.R. 2200. Therefore, H.R. 1600 proposes to codify, revise, and enact into positive law all of the acts of the Seventy-ninth Congress of the United States pertaining to the subject of crimes and criminal procedure.
Now, the other measure, H.R. 2055, pertains to judiciary and judicial procedure. There was a bill introduced in the Seventy-ninth Congress by Chairman Keogh, of that Committee on Revision of the Laws, and after long consideration it was favorably reported to the House, but we did not have an opportunity to get it up and pass on it in the House, so H.R. 2055 we have before us today is an identical bill with that which was considered in the last Congress by the Committee on Revision of the Laws, and which the Judiciary Committee reported unanimously and favorably to the House. It was not acted upon, however.
Now, may I just digress here for a moment, for those who have not been acting in connection with the revision of laws.
As you know, the Legislative Reorganization Act wiped out the Committee on Revision of the Laws, and transferred the matters under its jurisdiction here to the Judiciary Committee.
Now, there have been a lot of efforts made through the years to revise and codify the laws, through the Committee on Revision of the Laws, but after all that has been done and said by the United States Statutes and the Code, the net result today is that you have a Federal Code that is merely prima facie evidence of the law.
One of the real main purposes of this act is to cut out the obsolete laws, acts that have been repealed by a special revision of some measure through the Congress, or have been repealed or come to an end by their own terms; and then to get these laws in better shape, to build up a code of 50 titles, the two most important of which the experts, those in our high courts, and our lawyers, say are titles 18 and 28.
There are 50 titles in all. Some of them are very small titles; there are titles on bankruptcy, on veterans' laws, and on the merchant marine.
We hope that we are going to have all the laws properly classified and properly titled, so that we can turn to them quickly and easily and so that they will be understandable, not only to the judges and the lawyers but to laymen.
The Supreme Court has felt so much concerned about the matter that they appointed a committee to cooperate in this revision. Many of the judges of our Federal circuit courts, the courts of appeals, the American Bar Association--every one has had a hand in these matters.
Now, you know, 1600 looks like a very formidable document itself. It contains 472 pages. But our committee of experts, and distinguished judges, have read every line of that bill.
So the important thing that this committee is trying to accomplish is to develop such a table so that the Members of the Congress will feel that what we present to them is as nearly correct as a work of this kind can be made correct, because you can never reach a time when the Members of Congress will read a bill like that and then turn to all the hundreds and hundreds of references, the various statutes, to see whether they are correct, or have been repealed, and perhaps we will not get many of them to read H.R. 2055, which contains over 170 pages; H.R. 1600 is 472 pages.
I should like for each witness who appears to give us his judgment as to the care that has been taken in the preparation of this and as to the verity of the things contained in these bills.
Now, we have Congressman Devitt, of Minnesota, who must go to another committee at this time. He desires to make a statement.
STATEMENT OF HON. EDWARD J. DEVITT, A REPRESENTATIVE IN CONGRESS FROM THE FOURTH DISTRICT OF THE STATE OF MINNESOTA
Mr. Devitt. Mr. Chairman and members of the subcommittee, my name is Edward J. Devitt. I am a member of Congress from St. Paul, and I am serving as a member of the Committee on the Judiciary.
I strongly urge that you favorably recommend H.R. 1600 and H.R. 2055.
These two bills embody a complete revision and codification of title 18 of the United States Code dealing with crimes and criminal procedure, and title 28 of the United States Code dealing with judiciary matters.
Our Federal laws have long been in need of a thorough revision and an accurate and convenient codification. These two bills do that job for two of the most important titles in the United States Code. I hope that your favorable action on these bills will be a forerunner to the eventual revision of the entire code.
In these two bills the laws have been rewritten in direct and simple language. Hundreds of obsolete and irrelevant provisions are eliminated and will be repealed. Uncertainty will be ended, and constant references to the Statutes at Large will no longer be necessary. If enacted these bills will make the contents positive law as distinguished from prima facie evidence of the law. It will undoubtedly be to the great benefit of the courts, lawyers, lawmakers, and the general public that these revisions receive congressional approval in order to make our statute law a systematic and orderly arrangement of congressional action.
I emphasize the professional standing and ability of the authors of this work because I know that it is not humanly possible for the members to read every word or even every section of the bill and that of necessity great reliance must be placed upon the integrity and caliber of the persons who did the work.
The revision of the criminal code, title 18, is in every way up to date with the new criminal rules, and the proposed revision of the Federal code is responsive to the new rules of civil procedure. Both bills have been brought up to January 1, 1947.
I strongly recommend a favorable action by you on H.R. 1600 and H.R. 2055.
Thank you, Mr. Chairman.
Mr. Robsion. As a Member of Congress, you have had occasion to practice law, have you?
Mr. Devitt. Yes; I have had occasion to practice law for 11 years.
Mr. Robsion. Federal and State?
Mr. Devitt. That is right, sir. I served as municipal judge in my State for 3 1/2 years, as assistant attorney general for 4 years, and am now a member of the faculty of the law school of St. Paul College of Law in St. Paul.
Mr. Robsion. You emphasize there the importance, as I understand it, of having experts treat a subject like this; I mean, the matter of the revision of the law and the codification of the law. And that not only has the West Publishing Co. and the Thompson Co. but a number of very capable experts in revision and codification working on this bill, and they have been doing so for a long time. So you think as a lawyer and judge that this is very necessary not only for the bench and the bar but for the good of the country as a whole?
Mr. Devitt. Yes, Mr. Chairman, I do.
Mr. Robsion. Thank you very much.
Does the committee have any other questions?
Mr. Jennings. Mr. Chairman, he said that there were a lot of changes that would be accomplished by this legislation.
If this legislation materially changes title 18, as I have it in my mind now, with respect to pensions and the election franchise, I would be greatly disturbed and alarmed.
Mr. Robsion. It does not change the law or the meaning of the law. It does in some respects there answer the requests of the Federal judges and the members of our high court, to make some changes in some instances.
Some years ago, many years ago, perhaps, certain offenses were of very little importance but in the growth of our country and in its development, those same offenses now in a much larger sense become a very serious matter for society, and are classified as felonies.
On the other hand, there was a time when felonies that were not important were classified as misdemeanors.
Mr. Jennings. Now, a conspiracy, where a number of persons conspire to deprive citizens of a civil right, is a felony, but I have had a lot of experience with the Department of Justice and have never had offenses arising under these titles prosecuted.
I was successful when Mr. Biddle was Attorney General, but neither myself nor the people like those in Polk County, in east Tennessee, have been able to get any action under the present set-up in the Department of Justice.
That is true in the experience of Mr. Reeves who just came in from Kansas City, Mo.
I just am wondering which of these bills are affected in the code.
Mr. Robsion. Title 18 is the codification of the revision of the crimes and criminal procedure.
Mr. Gossett. We might call one of these expert witnesses.
Mr. Robsion. I suggest to my colleagues that when we get to the point here, these witnesses, some of whom are Federal judges, can answer that.
Mr. Jennings. Are they here?
Mr. Robsion. Yes, they are here.
Mr. Gossett. We have a room full of experts here.
Mr. Keogh. Mr. Chairman, I was going to be bold enough to suggest that the judge withhold his questions until you have heard the testimony of some of the witnesses who are here, and I think, Judge, that you will be satisfied.
Mr. Jennings. My reason for bringing it up is that this is a very live subject with me and with my people. We only got relief down there when the returned veterans fought a battle in the nighttime in McMinn County, and overthrew a dynasty that had existed for 12 years, by force and violence.
Mr. Robsion. You will find nothing in these bills that will bring comfort to criminals or prevent you from prosecuting the folks down there that commit crimes like that unless you have officials that are unwilling to carry out the law.
Mr. Jennings. Of course, none of these laws is self-executed. You have to have somebody to load the gun and pull the trigger.
Mr. Robsion. Who is the next witness here?
Mr. Zinn. I suggest Judge Miller as the next witness and then Mr. Keogh, who has another meeting to go to.
Mr. Gossett. Mr. Chairman, I suggest that we call Mr. Keogh to explain in general how this H.R. 1600 was prepared. I think the chairman of the committee has done that pretty well, but Mr. Keogh had direct supervision of the work.
Mr. Robsion. Yes; that is true; but I thought that Judge Miller would go first.
Mr. Miller. Mr. Chairman, I much prefer that Mr. Keogh go first because it would put it in more logical order for the committee.
Mr. Robsion. And who is present here that lives out of the city and must get away today?
Mr. Keogh. Circuit court Judge Maris is here from the Third Circuit in Philadelphia, and Professor Moore of Yale University is here, and I dare say those two should probably be given consideration for an early hearing.
Mr. Robsion. Yes. We will call them next after we hear you, Mr. Keogh.
STATEMENT OF HON. EUGENE J. KEOGH, A REPRESENTATIVE IN CONGRESS FROM THE NINTH DISTRICT OF THE STATE OF NEW YORK
Mr. Keogh. Mr. Chairman and members of this subcommittee; as Mr. Gossett pointed out, your chairman this morning in his opening remarks covered pretty much, or all, of the subject that I would undertake to tell the subcommittee.
But if I may be permitted and at the risk perhaps of telling you things that are generally known, may I just make this brief general statement?
In 1926, when the first edition of the United States Code was prepared and published under the supervision of the Committee on Revision of the Laws, it was introduced as a bill. The subject matter of the Federal laws of a permanent and general nature were logically subdivided into the present 50 titles of the Code, and as it was then prepared, it was introduced as a bill.
My information is that it passed the House on at least two occasions. But when it went over to the other body, it met with what is generally the fate of a bill of such tremendous scope as that and it was there that in the first title of the United States Code and in the early section was inserted what was intended to be the saving clause, making the United States Code merely prima facie evidence of the statement of the law.
And under that restriction, more or less, the United States Code has been presented to the public, to the bench, and to the bar, for now upward of 20 years.
The Committee on Revision of the Laws felt early in 1942 that that Code as it had been prepared had been exposed to such tests for accuracy and completeness to warrant our undertaking what was in our opinion the next logical step in the development of a statement of the law of this country that was permanent in nature, logical in order, and relatively easy to ascertain and find.
Realizing that if we were to attempt to undertake an enactment of the United States Code in its entirety, we should probably meet with the same fate as the early bill, we decided that the best and most efficient way to do it would be to undertake to enact the Code into positive law, title by title.
So in 1943, the Committee on Revision of the Laws was equipped by the Congress with the means to undertake a substantive revision and restatement of titles 18 and 28.
Mr. Robsion. Why did you select 18 and 28?
Mr. Keogh. We selected 18 and 28, Mr. Chairman, for the reason that those were the two titles that by our experience and information cried out the loudest for a revision and for a restatement and for possible enactment into positive law, and we selected those two titles, too, particularly for the reason that there was pending under the acts granting the authority to the Supreme Court and its advisory committees, the adoption of the rules of civil procedure and of criminal procedure, and we proceeded upon the hypothesis that the adoption of such rules would necessarily require substantive revision of the then existing laws.
So the Committee on Revision of the Laws undertook the revision of titles 18 and 28 of the Code.
The policy that we adopted, which in my mind has been very carefully followed by the revisers and by the staffs of the publishing companies as well as the employees of the committee, was to avoid wherever possible and whenever possible the adoption in our revision of what might be described as controversial substantive changes of law.
It is my opinion that that policy of the Committee on Revision of the Laws has been very carefully adhered to in the bills that are before this subcommittee.
With respect to title 18, and specifically with respect to the inquiry of Judge Jennings, I should like to point out to the committee that the report that accompanied H.R. 2200 of the Seventy-ninth Congress, and the preliminary drafts which were prepared during the course of our work, clearly show what the changes have been in existing law.
With respect to title 18, I dare say that the most important changes that were made were with respect to penalties imposed for crimes.
It was very easy to understand why in some instances, for example, a crime which by its definition was a misdemeanor, carried a penalty greater than other crimes which by their definitions were felonies. The reason for that, obviously, is that without an integrated permanent Code, we had piecemeal legislation enacted to take care of a present situation and in a wave of emotion, perhaps, if I might be bold enough to suggest that the action of the legislature ever is influenced by such, a crime would have attached to it a penalty that was greater than the crime itself.
So we integrated all the penalties that were in existence and we set up what we deemed to be a logical table for the penalties. We carefully circularized that as widely as possible, and I think I can assure your subcommittee that the manner in which this work has been done by the editorial--
Mr. Robsion. Who participated in this matter?
Mr. Keogh. When we undertook the revision of these two titles, the committee directed the execution of a contract with the West Publishing Co., of St. Paul, Minn., and the Edward Thompson Co., of Brooklyn, closely affiliated companies, which have been engaged in the preparation of the annual cumulative supplements and of the 1934 and 1940 editions of the Code.
They augmented their combined editorial staff with a staff of revisers headed by W.W. Barron, who was former Chief of the Appellate Section of the Criminal Division of the Department of Justice.
In connection with the work, they secured also the services of Assistant United States Attorney Frank Parker, of the eastern district of New York, and Theodore W. Graske, author of The Law of Government Defense Contracts and other works.
The Committee on Revision of the Laws, being primarily charged with the responsibility of this work, obtained for its staff the services of Charles J. Zinn, who had been acting since 1939 in the capacity as counsel for the Committee on Revision of the Laws, and who, in my opinion, is the one most familiar with the work of the Committee on Revision of the Laws, and John F.X. Finn, a member of the Law Revision Committee of the State of New York, a member for many years of the faculty of the Fordham University School of Law, and a recognized practicing attorney in the courts of New York and of the Federal Government.
The publishing companies, in addition to augmenting their editorial staffs with the experts I have mentioned, created for them what they were pleased to describe as an advisory committee, and that advisory committee consisted of former Chief Justice of the Illinois Supreme Court Floyd E. Thomson; former Circuit Court Justice Justin Miller; and John T. Cahill, former United States attorney for the southern district of New York.
They also had two special consultants in the persons of now District Judge Alexander Holtzoff, who at that time was special assistant to the attorney general, and George F. Longsdorf, of Oakland, Calif., who served as a member of, and, I think, secretary, to the Supreme Court Advisory Committee on the Federal Rules of Criminal Procedure
Mr. Robsion. May I interrupt you there?
Chief Justice Stone appointed a committee.
Mr. Keogh. That was in connection with title 28. The men whose names I have mentioned up to now were those who were engaged first in the revision of title 18, which was the first title we took up.
When we completed the work on title 18 we undertook the revision of title 28, and the men whose names I have mentioned continued in the capacities that they had, and in addition thereto the advisory committee of the publishing companies was augmented by the inclusion on it of Walter Armstrong, former president of the American Bar Association, and a recognized legal expert on procedure; Circuit Court Judge Sanborn, of the eighth circuit; Prof. James W. Moore, of the School of Law of Yale University; and John Dickinson, of the Philadelphia bar, professor of constitutional law at the University of Pennsylvania Law School, and former Assistant Attorney General of the United States.
In addition to that advisory committee, augmented as it was for the work of title 28, the Chief Justice of the Supreme Court of the United States, acting for the Judicial Conference, appointed an advisory committee for that conference, which advisory committee consisted of--
Circuit Court Judge Albert B. Maris, of the third circuit; United States District Judge Smith, of the district of New Jersey; and United States District Court Judge Galston, of the eastern district of New York.
Mr. Robsion. And that would include also Judge Parker, of the fourth circuit?
Mr. Keogh. Circuit Court Judge Parker was a member of the advisory committee for the editorial companies.
Now, in addition to the advisory committee for the Judicial Conference, the Chief Justice of the Supreme Court, the then Chief Justice of the Supreme Court Stone, appointed a committee of that Court consisting of himself as chairman and Associate Justices Douglas and Frankfurter.
I hope I have not omitted any of the men. I do not do it intentionally.
The procedure that then was adopted was that the revisers in cooperation with the members of the staff of the committee on revision of the laws undertook the preparation of what we called preliminary drafts, which were careful statements of the proposed title, with complete revisers' notes under each section clearly pointing out the source of the section, any changes that were effected, the reasons for the change, and any other explanatory notes that the reviser felt would be helpful.
The committee on revision of the laws in the preparation of those preliminary drafts sought to give them the widest possible circulation. We made certain that every member of the legislature got one; we made certain that they were sent to every United States attorney; that they were sent to every member of the Federal judiciary; that they were sent to the appropriate committees of the leading State and local bar associations; that they were sent to everyone who ever evidenced any interest in the work at all.
As a result of the circularizing of the bench and the bar and the public with these preliminary drafts, the revisers and the staff of the committee on revision of the laws received many suggestions.
The practice that was adopted was that in the preparation of these preliminary drafts there would be arranged meetings of the advisory committee and of the advisory committees in connection with title 28. At those meetings of the advisory committee, which extended generally for 2 or 3 days, the proposed preliminary draft was gone over section by section, and any question that was raised by anyone was thoroughly explored by this group of experts.
If any question was left unresolved, that section would be referred back to the reviser for further consideration in the future.
As a result of that, I think I can assure this subcommittee that the men whose names I have mentioned and all departments of Government that might directly or indirectly be interested in the work were kept fully and currently informed of any of the proposed changes.
It is my opinion that the bills that are now before this subcommittee represent a constructive, conservative restatement of the laws included in the two titles.
May I further say this?
Mr. Robsion. While you are on that point, is there anything in any one of these bills that would account a man criminal after being prosecuted for conspiracy?
Mr. Keogh. I think I can assure the subcommittee that the provisions of the proposed bill affecting title 18 do not make any such violative change in substantive law, and I would say that the provisions with respect to offenses and penalties are the careful, considered work of a large group of experts restating the law as it existed at the time of the restatement.
May I say further that when the work of the revisers and the advisory committees was completed the committee on revision of the laws, recognizing as it did during its entire existence a potential conflict between it and the jurisdiction of all the other standing committees of the House, undertook to have the bills with respect to titles 18 and 28 referred to the House Judiciary Committee, and the then chairman of the committee appointed a subcommittee, of which the chairman of this subcommittee was a member.
With that subcommittee, and with the then counsel to the House Judiciary Committee, the revisers and the staff on the Committee on Revision of the Laws went over the legislation section by section.
Mr. Robsion. And line by line and word by word, if I may interrupt.
Mr. Keogh. Precisely.
I think that it is incumbent upon me at this time to state that whereas the cooperation on the part of all who were engaged in this work was great, the cooperation received by us at the hands of the subcommittee of the House Judiciary Committee is a great credit to the members of that subcommittee. They did a fine, painstaking, careful job.
Mr. Robsion. Now, after all of it, then the Committee on Revision of the Laws announced it, reported it favorably, unanimously.
Mr. Keogh. That is right, sir.
Mr. Robsion. And after that it was taken up before the full committee.
Mr. Keogh. That is right.
Mr. Robsion. The Judiciary Committee reported it unanimously, and approved it.
Mr. Keogh. Unanimously.
And the House passed the bill enacting title 18 unanimously.
Mr. Robsion. Under unanimous consent.
Mr. Keogh. By unanimous consent.
And the bill to enact title 28 was pending on the House Calendar at the adjournment of the Seventy-ninth Congress.
Mr. Robsion. Before we leave this, why should that be?
Why should this legislation be enacted?
Mr. Keogh. It is, in our opinion, one of the most necessary steps in the improvement of the art of legislating for a country as large as ours, and when you enact these two titles into law and when ultimately you enact the 50 titles into law, you will have presented to the country a permanent framework of the general and permanent laws of the country within which and around which all future new or amendatory legislation may be drafted, not in statuteat-
large language, but may be drafted in code language, and you immediately present to the public in the form of any bill that might hereafter be introduced a clear, logical modern method of preparing legislation.
The great difficulty with which we have been operating in this country, especially since the preparation of the United States Code, stems from the fact that the Code itself is merely a prima facie statement of the law.
Now, if I may be permitted to take just a few minutes longer, I should like to say that my interest in the work of revising the laws directly ended with the beginning of the Eightieth Congress. I think those of us who have for years past been interested in it, are to take a great deal of consolation that under the Reorganization Act, the functions of our committee vested in this House Judiciary Committee and that the chairman of this subcommittee was a member of the Committee on Revision of the Laws, but I certainly urge upon this subcommittee and upon the full committee, if I am ever given an opportunity, to avoid what we were faced with in the other body, where our bills were referred to the Judiciary Committee, and preoccupation with what they deemed, I suppose, to be more important legislation prevented the consideration of any of our bills.
Now, it certainly seems to me that if revision is necessary--and I think that it is generally recognized to be so--
Mr. Robsion. Now, the bench and the bar are the people who generally are competent in this situation.
Mr. Keogh. I am concerned not only with the bench and bar, Mr. Chairman, but I think the public is entitled primarily to know what the laws of its country are, and I think that the public is entitled to have those laws presented to it in the clearest, most concise and most understandable form and it is my opinion that that can be accomplished by the work which your subcommittee is now undertaking.
I certainly trust, and I am sure that under your chairmanship it will adopt the policy that will relieve the members of your subcommittee and of the full Committee on the Judiciary of the House of the greatest amount of the careful, painstaking, technical work, involved in this type of work.
I know you have adopted that policy. I compliment you for having done so and I categorically state that it is my opinion that the bills pending now before you for the enactment into positive law of the substance of titles 18 and 28 of the United States Code should be favorably reported by your subcommittee, by the full committee, and favorably acted upon by the House.
Thank you very much.
Mr. Robsion. Thank you.
Mr. Chadwick. May I ask Mr. Keogh a question?
Mr. Robsion. Yes.
Mr. Chadwick. Mr. Keogh, I gathered from the very able presentation of the background of your approach that it is probably undesirable at this time for us to consider changes of the substantive laws that either are or might become controversial.
This is not the time for that particular type of contribution.
Am I correct?
Mr. Keogh. You are correct. But may I take an opportunity to explain my answer a little bit?
The motivation for our seeking to avoid as far as possible controversial substantive changes was due to the basic potential conflict of the jurisdiction of the Committee on Revision of the Laws and the House Judiciary Committee. I think to a large extent, by the merger of our functions into you, that that conflict is somewhat removed.
But, further, we proceeded upon the hypothesis that since that was primarily a restatement of existing law, we should not endanger its accomplishment by the inclusion in the work of any highly controversial changes in law.
Mr. Robsion. And this bill does not include controversial matters?
Mr. Keogh. We have sought to avoid as far as possible, Mr. Chairman, any substantive changes that did not meet with unanimity of opinion.
Mr. Robsion. Are there other questions?
(No response.)
Mr. Keogh. Thank you very much.
Mr. Robsion. We will now hear from Mr. Miller.
STATEMENT OF JUSTIN MILLER, PRESIDENT OF THE NATIONAL ASSOCIATION OF BROADCASTERS
Mr. Miller. Mr. Chairman and gentlemen--
Mr. Robsion. For those that do not have the honor and pleasure of knowing you, Judge Miller, you may give your background.
Mr. Miller. Yes.
My name is Justin Miller. I was for a year a member of the United States Tax Court when it was still called the Board of Tax Appeals; for 8 years a member of the United States Circuit Court of Appeals for the District of Columbia.
A year and a half ago I resigned from that position, and I am now president of the National Association of Broadcasters.
I participated for the full period of time as a member of the advisory committee--
Mr. Robsion. How many years were you engaged in the practice of law before that?
Mr. Miller. I will give you some biography, if you like.
Seven years in general practice; 14 years in law-school teaching, including 7 years of deanship at the University of Southern California and Duke University.
I was in the Department of Justice for nearly 3 years, and I have had many associations as section chairman and committee chairman of the American Bar Association, as well as of the California State bar, which is my native State and the place in which I practice.
I have been for many years interested in the subject of criminal law as well as in the subject of judicial administration, including teaching that subject during the entire 14-year period, and I was chairman for 10 years of the section of criminal law of the American Bar Association.
So this was more or less a natural assignment which was given to me.
I would like to speak particularly, Mr. Chairman, to the subject which you mentioned in the earlier part of your opening remarks, about my association with the advisory committee and the way in which this work was done.
I wish to emphasize particularly the impressions which have resulted from my participation in the work as a member of that advisory committee.
Generally speaking, it has never been my privilege to work with a research and editorial group more conscientiously devoted to the task under way and I have worked with a number of such groups. Coming from several different areas of previous experience, the members of the group brought to the job many different points of view, and these were resolved by writing and rewriting, drafting and redrafting, into a thorough and comprehensive revision, which in my opinion fully justifies your intention to be enacted into permanent and positive law.
That this is not mere fulsome praise will become apparent when I tell you that the advisory committee itself spent nine full days in conference with the editorial staff at intervals of several weeks, considered every section in full meeting and challenged the wording of many of them, as well as chapter titles and chapter and section arrangements, upon which the editorial staff had been busy as beavers during the intervening period of time.
As the work went forward, I found myself reading the drafts prepared by the editors from two other points of view as well: First, that of the judge, who is frequently engaged in interpreting and applying the sections of the Criminal Code; second, as a trial lawyer, hunting for the law applicable to particular cases.
I may say that I was for 4 years a prosecuting attorney, so I had particular interest in that respect.
As a judge I was concerned with simplification and clarification of language, the removal of ambiguities, uncertainties, duplication, redundancy, and conflict. To the achievement of this objective the editorial board was conscientiously and effectively alert.
Remembering my days of practice, I was seeking completeness and comprehensiveness, together with chapter and section arrangement which would disclose--not conceal--all vital provisions.
I am sure every practicing lawyer will sympathize with me in that.
Mr. Robsion. Taking into consideration the construction that has been placed on these various acts?
Mr. Miller. Yes; the editors prepared that.
Mr. Robsion. By our high courts and Supreme Court, and so on?
Mr. Miller. Exactly. The editors prepared for us very careful delineations of each of the chapters and sections and we sat in with the books immediately available and kept pulling them down and questioning them on every section that arose.
We had the books before us, and we had the decisions of the Supreme Court and the circuit courts of appeals and we had all the information before us that a judge would have working on a brief in his chambers.
To answer one of your questions specifically, I thought as I listened to Mr. Keogh, of the days when I sat with the committee, and I failed to recollect a single instance in which anyone made any effort to coddle the criminal or to ease up the law with respect to effective prosecution.
I can assure you that the people's rights were amply and adequately represented at all times.
With respect to chapter titling and arrangement, and the arrangement of sections, I feel that a very substantial improvement has been worked out. No more is necessary to prove this point than to read in comparison the old chapter titles and those in the revision. When the judge and the practitioner make the more intense investigation which their work requires, the point will be doubly proved.
With respect to completeness and comprehensiveness, we were faced with a serious problem of legislative policy; that is, whether to satisfy particular Government agencies--together with the lawyers and members of the public concerned with the work of those agencies--by combining, in the statutes regulating their activities, the penal as well as the general provisions of the law, or to prepare a code of criminal law which should be all-embracing. In this, as in other respects, it was necessary to compromise, especially because of the way in which the penal provisions had been combined with the general provisions of the law in the original enactments.
I am convinced that it would be difficult to secure a better integration of material in this respect than has been here achieved. Moreover, the revision will become even more usable as a result of the announced policy of the editors that when the code is published for distribution, it will include comprehensive cross-references which will bring together, in skeleton form, at least, the whole body of Federal criminal law.
Several times during our investigations, the question was raised as to whether it would be possible to discover the relation between different sections which might appear at remote parts of the code, and on each of those occasions, the editors were instructed to make a note to cover by a cross reference so that it would become more easily discoverable. And that, of course, is one of the most valuable phases of skilled editorial work.
As a consequence of this, I am ready to say the result is the best product that could be expected. At the same time I would not pretend that the revision may not be criticized.
I want to anticipate one or two of those criticisms in my statement to you now:
In a few areas we felt that more work was necessary before it could be said that complete revision has been accomplished; but that the time is not yet ripe for doing it. For example, consider the subject of slavery and peonage.
The laws upon this subject were in disuse for many years. Recently there has been a revival of their administration and of consideration of the need for administration. Probably legislation--as well as experience--are needed at this time more than is revision. After a few years the revisers may be called in again in this particular area.
In the area of crimes against international law, while considerable work of revision was done, eliminating archaic terms and modernizing as far as possible sections enacted many years ago, it is nevertheless apparent that in our rapidly expanding world much new legislative work must be done to meet the needs of the new day. Here again, therefore, further revision can appropriately wait.
Considered as a whole, it must be noted, also, that absolute perfection should not be asked for or expected in a work of this kind, any more than in connection with legislation generally.
Perhaps I speak with a little more feeling on that point for having been a judge for a number of years, trying to discover in some instances what the legislative intent was, where it was apparent that several legislative intents had been involved in the enactment of the legislation.
Too many unavoidable compromises, too many conflicting considerations of public policy are involved, to satisfy everyone. Many enactments were bitterly contested in their origin. Many of the underlying differences are still inherent in particular sections.
I have no doubt that some members may rise to question provisions which will be found in this code upon the same grounds of question when the laws were originally enacted.
No editorial board or committee on revision of the laws can produce complete unanimity of opinion concerning such differences, where in the beginning there may have been scant majorities. I am speaking, therefore, not in terms of perfection, but of substantial human achievement. That we have this, in the proposed revision, there can be no doubt.
All that I have said in connection with the mechanics of the preparation of the Criminal Code can be reiterated fully with respect to the revision of the Judicial Code, embodied in bill H.R. 2055.
The advisory committee--which for this part of the task was augmented by several outstanding members of the bench and bar--met on four separate occasions covering at least 12 days. These meetings were attended by the judicial conference committee appointed by Chief Justice Stone, whom Mr. Keogh has already named; by the counsel for the House Committee on the Judiciary; by the counsel for the committee on the revision of the laws; by Mr. Chandler and Mr. Whitehurst, representing the administrative office of the United States courts.
On two occasions we were honored by the presence and participation for several hours of Chief Justice Stone himself, as well as Justices Frankfurter and Douglas, and on several occasions by the presence of Hatton Sumner, then chairman of the Judiciary Committee.
Moving from the general to the particular, I would like to recommend one change in the structure of the law to be embodied in H.R. 2055, namely, the transfer of the provisions relating to the Tax Court of the United States from the Internal Revenue Code to the Judicial Code. As a former member of the Tax Court, familiar with the jurisdiction and scope of its work, I heartily recommend this transfer. The Tax Court now exercises all the functions of a court; it operates in a truly judicial manner; and it is fitting that the provisions relating to it should be found in the Judicial Code along with the provisions relating to the other courts.
I mention that particularly because some question may be raised concerning the point when it comes up for discussion on the floor.
In summary, let me emphasize to the members of the committee that these bills are the result of diligent, painstaking, conscientious research and cooperation on the part of outstanding men in various fields of legal and judicial service. I believe that this revision is long overdue; that it is a job well done, one of which this committee can well be proud, and that their enactment by the Congress would be a service not only to the bench and bar but to the people whom they serve.
Thank you.
Mr. Robsion. Thank you, Mr. Miller.
Has anyone here any questions?
Mr. Chadwick. Judge Miller, at the risk of something which may be a mouse in a problem of elephants, may I direct your attention and that of Mr. Keogh to the arrangement of the Code as regards line 2 and the sequence of line
3 on page 449?
Mr. Miller. Is this 2055?
Mr. Chadwick. No; this is 1600.
Mr. Miller. Pardon me. Would you give me the citation again?
Mr. Chadwick. Sir, it is on page 449. It starts on the third line and is section 2. Following this, a fixed section 5037 on the parole of juveniles. It seems to me that the printer has either dropped something out there or that perhaps there should be some further revision.
Mr. Miller. Mr. Zinn has been following your question. He has the technical answer. May I ask him that?
Mr. Chadwick. Yes, sir.
Mr. Robsion. Mr. Zinn has been counsel for the Committee on the Revision of the Laws, and he has been connected with our committee.
Mr. Zinn. I think Judge Miller can answer this just as well as I can, or better, in fact. The bill is divided into a number of sections. Section 1 of the bill, which covers the first 448 pages, contains the new Criminal Code and titles in H.R. 1600. All of the Criminal Code, which is divided into various chapters and subchapters, is contained in section 1 of the bill and that takes up the first 448 pages.
Then on page 449, we start with several new sections. Section 2 of the bill is the first of the new sections which affects other titles of the United States Code. They do not affect title 18.
Mr. Chadwick. That is what I observe, and I wonder whether some interruption should not be indicated?
Mr. Zinn. I think perhaps we started, and in the reported copy we can do it, started section 2 on an altogether new page, leaving a blank after the balance of section 5037 there. It will be clear that section 2 of the bill is not a continuation of the Code as set forth in section 1 of the bill.
Mr. Miller. It probably might be well to have a note in the committee report covering this point also.
Mr. Chadwick. I just wanted to mention that it had been observed by someone who could pass on it more logically than I.
Mr. Zinn. Mr. Keogh has just suggested that I explain why we have those additional sections.
There are a number of sections in other titles of the United States Code in some measure affecting the Judicial Code, but which are not so vital a part of it as to be included in title 28, or which are so tied up with enactments that they cannot be transferred to title 28.
For example, here is a section on subsistence of prisoners. That is in the District of Columbia Code now, and it relates particularly to the District of Columbia, but it is not part of title 18 in the United States Code. It is in the District of Columbia Code. Congress, of course, enacts for the District of Columbia, and we are making this change in the section of the District of Columbia Code and putting it into this bill because of our revision of title 18 affecting prisoners generally. But it is not part of the Criminal Code.
There are a number of other sections of that nature, where we felt that we could not take the provision out of another title and bring it over to title 28 but that a change had to be made in the other title.
Then, of course, we have a complete repeal provision, which is section 22 of the bill, on page 459, in which we specifically repeal all existing law which is incorporated into the new code.
Now, that is most important. Heretofore, in the preparation of the codification of laws, there have been indefinite repeal provisions to the effect that all laws or parts of laws in conflict herewith are hereby repealed. That is an incomplete job. They leave it up to the courts to decide what laws are repealed.
In this bill, we have set up a new section of the bill, section 22, listing chronologically all of the laws which we repeal.
Mr. Miller. May I be excused now, Mr. Chairman, or were there further questions you wanted to ask me?
Mr. Robsion. You agree with Mr. Zinn about this arrangement?
Mr. Miller. Oh, yes.
Mr. Robsion. Are there any other questions?
Mr. Reed. I would like to ask Mr. Zinn a question there.
Mr. Robsion. Yes.
Judge, we thank you very much for coming and for your very splendid statement.
Mr. Miller. Thank you, Mr. Chairman.
Although I have been out of the judiciary for a year and a half, I am so much interested in this job that I could not resist the invitation to come down.
Mr. Gossett. We certainly appreciate it.
Mr. Reed. I understood the chairman to say that H.R. 1600 has been brought up to date and has included all the changes that have been made by the Seventy-ninth Congress.
Mr. Zinn. There were a number of bills which passed both Houses and which were approved by the President after the bill H.R. 2200 of the Seventy-ninth Congress, which was the forerunner of 1600, was reported and passed the House. We have included in H.R. 1600 those additional laws which were enacted during the last session.
During July this bill was reported by the Committee on Revision of the Laws, in July, in the second session.
Mr. Robsion. You have covered all the crimes and criminal procedure for the Seventy-ninth Congress?
Mr. Zinn. We have covered everything.
Mr. Robsion. You have covered all the provisions of the Seventy-ninth Congress in that respect that are in existence, and are now law?
Mr. Zinn. Exactly.
Mr. Reed. Now, the reason that I asked the question is that I happened to notice on page 119, section 659, that that part there, as I recall, was repealed by the Seventy-ninth Congress, and an entirely new statute was enacted, and this seems to be the old one that is in here. That is on page 119 at the bottom of the page.
Mr. Zinn. I wonder if Mr. Barron can explain that? He has more notes with him. He has brought along his notes and he probably remembers this section 659.
Mr. Barron. Where is that?
Mr. Reed. Section 659, at the bottom of the page 119.
In fact, the Judiciary Committee, yesterday, or the day before yesterday, amended the new amendment section.
Mr. Zinn. Mr. Barron was the chief reviser for the publishing company, and he is familiar with all of the details.
Could we give you an answer to that later, Mr. Reed?
Mr. Reed. Surely.
Mr. Robsion. Are there any other questions?
(No response.)
Mr. Robsion. Is Judge Maris here?
Mr. Zinn. Yes, Judge Maris is here, Mr. Chairman.
STATEMENT OF HON. ALBERT B. MARIS, UNITED STATES CIRCUIT JUDGE FOR THE THIRD CIRCUIT, PHILADELPHIA, PA.
Mr. Robsion. Judge Maris, will you please give your name and your background as a lawyer and a judge, and so forth?
Judge Maris. Mr. Chairman, I am Albert B. Maris, United States Circuit Judge for the Third Circuit, with my official station at Philadelphia.
I practiced law in Philadelphia after leaving the Army after the First World War from 1919 to 1936.
I was appointed United States district judge for the eastern district of Pennsylvania in June 1936, and United States circuit judge for the third circuit in June 1938. Since that date I have served in that office.
Mr. Robsion. Did you practice civil and criminal law?
Judge Maris. I practiced generally in Philadelphia, not very extensively in the criminal court but some criminal cases.
I practiced quite extensively in the civil courts and in the Federal courts during that period.
I have prepared a statement, Mr. Chairman, with respect to this matter, which in order to save our time and be concise,
should like to present to you.
Mr. Robsion. Very well. Proceed.
Judge Maris. The Judicial Conference of Senior Circuit Judges at its session in September 1944, took note of the fact that the House of Representatives, through its Committee on the Revision of the Laws, was engaged in preparing recodifications of the statutes included in title 18, Criminal Code and Criminal Procedure, and title 28, Judicial Code and Judiciary, of the United States Code. Being impressed with the importance and timeliness of this work the conference authorized the Chief Justice of the United States to appoint a judicial committee to collaborate with the congressional committee in carrying it forward. Chief Justice Stone thereupon appointed a committee consisting of District Judge Clarence G. Galston of the eastern district of New York, District Judge William F. Smith of the district of New Jersey, and Circuit Judge Albert B. Maris of the third circuit, myself, chairman.
Since the recodification and revision of title 18, the laws relating to crimes and criminal procedure, had been completed before our committee was appointed, we decided, with the approval of the Judicial Conference, that we should devote our whole attention to collaboration in the work of revision of title 28, the laws relating to the judiciary and judicial procedure.
We proposed to do so in three ways:
(1) By conferring from time to time with the revision staff of the congressional committee with respect to any questions which they might desire to submit to us regarding the proper treatment in the revision of existing statutory provisions which appeared to be obsolete, ambiguous, or inappropriate or which they thought might require modification for some other reason;
(2) By acting as a clearing house in receiving from the members of the Federal judiciary and transmitting to the revision staff suggestions for the revision of existing statutory provisions deemed to be archaic, ambiguous, or inappropriate; and
(3) By transmitting to the revision staff such suggestions for revision as might be directed by the Judicial Conference of Senior Circuit Judges, whose committee we were.
Our committee has endeavored to cooperate in the task of revision in all three of these ways. In February 1945, May 1945, December 1945, and April 1946, we participated in 3-day conferences with the members of the revision staff and their advisers. At these conferences the successive drafts prepared by the able revision staff were considered section by section and all the questions which had arisen in the course of their preparation were thoroughly discussed and decisions were reached for the guidance of the staff in the further revision of the drafts. In these conferences the members of our committee endeavored to give the revisers the benefit of the experience and views of the Federal judiciary resulting from their practical experience in administering the existing statutory provisions relating to the courts. The revision staff were particularly fortunate in having an exceptionally strong and well qualified group of judges and lawyers selected by the congressional committee to act as their advisers. Judges John J. Parker, John B. Sanborn, Justin Miller, and Alexander Holtzoff brought to the conferences the results of their long experience in the Federal courts while Messrs. Floyd E.
Thompson, Walter P. Armstrong, and John Dickinson, all able lawyers with long experience in the Federal courts, presented the point of view of the practitioner.
In addition to these gentlemen Prof. James W. Moore, author of Moores Federal Practice, and Chairman Eugene J. Keogh of the House Committee on Revision of the Laws, made important contributions to the discussions. Our committee can attest to the extremely thorough and full consideration which was given by this advisory group to every doubtful point which arose in the court of the work.
In addition to this our committee addressed a letter to each of the Federal circuit and district judges in the United States soliciting suggestions with respect to the revision. The many suggestions received in response to this letter were collated by our committee and transmitted to the revision staff. The result is that the revision which is now incorporated in H.R. 2055 embodies a number of practical improvements in the judicial machinery of a wholly noncontroversial nature which have resulted from suggestions originating with the judges whose day to day administration of the various provisions of the Judicial Code gives them a special knowledge of these matters.
I think that our committee may fairly speak for the federal judicial establishment by saying that all of the Federal judges are impressed with the great importance of revising and codifying the mass of existing laws relating to the judiciary and are vitally interested in the success of the work which the Committee on the Judiciary and the former Committee on Revision of the Laws have undertaken in this field.
It is now 36 years since the last Judicial Code was passed. However, that code did not include all the laws relating to the subject, many sections of the old Revised Statutes and other laws still remaining in force. In the past 36 years a tremendous amount of legislation in this field has been enacted. More recently by the adoption of the Federal Rules of Civil and Criminal Procedure, pursuant to statutory authority, a great number of existing statutory provisions relating to procedure have been impliedly repealed either in whole or in part. Since these acts have not been expressly repealed, however, they all remain on the books, with real doubt, in many cases, as to the extent to which they are still in force. Moreover, many of the existing statutory provisions are concededly archaic and obsolete. Many more are ambiguous. The need for a thorough-going revision and re-codification of these laws accordingly hardly needs to be discussed.
Our committee has given careful study to the succession of drafts which the revision staff has prepared and presented to us during the past 2 years as well as to the final draft incorporated in the bill H.R. 7124, introduced on July 24, 1946, and the revision thereof included in the bill, H.R. 2055, introduced on February 18, 1947, and now before the subcommittee. While it doubtless will develop that some changes may prove desirable in a few of its provisions, and our committee itself may have some suggestions to make in this regard, we are happy to be able to state that, after study of the measure, we regard the revision as incorporated in H.R. 2055 as having been extremely well done. The existing material has been rearranged in a logical and consistent way so as to make any particular provision quite easy to find. Existing inconsistencies and ambiguities have been removed and obsolete and archaic provisions eliminated or modernized. At the same time care has been taken to make no changes in the existing laws which would not meet with substantially unanimous approval.
The communications which our committee has received from the members of the Federal judiciary lead us to believe that the revision in its present form meets with their general approval. On their behalf we desire to commend the Congress for undertaking this important and constructive work which will be most helpful to all the judges in enabling them to administer justice in the Federal courts with more certainty and efficiency than at present. May I, in conclusion, express the hope that the bill H.R. 2055, embodying the revision, may receive prompt and favorable consideration.
Mr. Robsion. Of course, it would be helpful to the bar and to the litigants.
Judge Maris. There is no question about that, Mr. Chairman. I was speaking perhaps especially for the judiciary, of whose representative committee I have the honor to be chairman.
There is no doubt but that it will help the bar, and, as has been suggested by Congressman Keogh, there is no doubt but that it will be extremely helpful to the public generally to have in one place clearly and precisely presented the laws which he must be familiar with.
Mr. Robsion. Now, in this regard, our present statute of the code is just prima facie evidence of the laws, and we have all the laws grouped and if we have all the laws grouped appropriately, it would be the law itself.
Judge Maris. Mr. Chairman, that is a very important point. We have the United States Code. It is a tool that is very useful, and it is widely used, not only by judges, but by lawyers and by the public, and it is not generally realized, I think--certainly not by the public--that it is not the law, that is only evidence of the law. They read a section in the United States Code, and it is assumed that that is the law.
Now, that may not be the law. You have to run back to the Revised Statutes or whatever the source material is for that particular section to see whether there has been any change made there that might be deemed of substance.
Of course, that running back in itself is a useless effort on the part of the bar and the courts. I do not know that we could estimate how much legal and judicial time is taken with that kind of work which, if this work is completed, not only on these titles but all the other titles, will be rendered wholly unnecessary.
It is surprising, however, the amount of time that courts are compelled to give in considering questions of statutory interpretation, which, if statutes are prepared with care and clarity and precision, and if overlapping and ambiguous provisions are eliminated, would not have to be given, and it is really, therefore, useless work, when all is said and done, but necessary under certain conditions which may exist.
Mr. Robsion. We do have many laws which are either obsolete or have been repealed, or by its own terms expired.
Judge Maris. I am impressed in that connection with what Mr. Zinn said. It was a very frequent method of statutory draftsmanship and an easy way to do it, of course, either to make no repealer, or to put as a final section, “all acts or parts of acts inconsistent herewith are hereby repealed.”
That has its effect, but what is its effect? That is a problem, then, for the courts. It takes up a tremendous amount of time and argument and discussion about a matter which, if it is possible to be specific when the act is passed, would never have to be discussed at all.
That, of course, is one of the byproducts of advantage that will come from this particular work in which you are engaged.
Do the members have any questions?
Mr. Chelf. It would seem to me to reduce the work on each individual judge. That would give you more time and expedite your work.
Judge Maris. It is a question of substance. The more you can get away from these questions that do not go to the merits of the case, obviously the more time you have to devote to cases of substance. That is clearly shown every time there is a change in procedure.
Take the rules of civil and criminal procedure. They are excellent works but they involve a change and that means that the court's time is taken up and has been taken up for a great many years to a very great extent, in deciding what all these matters mean and what their effect is.
Now, once that is done, you are through with it, but as long as you have these doubtful questions of overlapping statutes, of ambiguous or archaic statutes, of implied repeal, you have to consider them. The issues are raised in
lawsuits. They must be passed upon. They must be argued by lawyers. They must be decided by judges.
So far as you can eliminate that kind of useless work, you are certainly advancing the cause of the administration of justice and reducing the cost of that work to the litigant, who has to pay for all this.
Mr. Robsion. We thank you very much, Judge, for coming down here and giving us such a fine statement and picture of the situation.
Judge Maris. I felt, Mr. Chairman, that as rather of a bystander in this matter, a member of a committee appointed by the Chief Justice to sit in and collaborate, I was in a position, perhaps, to tell you a little something about how this work was done by the people who have been employed by Congress to do it, and we were very happy to do so.
Mr. Robsion. The committee has greatly benefited by your statement. I am sure the members of the committee feel that way about it.
Judge Maris. Thank you very much.
STATEMENT OF WILLIAM W. BARRON, CHIEF REVISER, WEST PUBLISHING CO.
Mr. Robsion. Now, are you ready to answer Congressman Reed's question, Mr. Barron?
Mr. Barron. Yes, Mr. Chairman.
Mr. Robsion. Mr. Barron, you might give a little of your background and let us find out here who is making the statement.
Mr. Barron. My name is William W. Barron. I am the chief reviser employed by the West Publishing Co. to supervise the work of revision, which was done by a staff of editors under my supervision at the offices of the Edward Thompson Co. in Brooklyn, who are copublishers with the West Publishing Co. of the United States Code, Annotated.
Before accepting this duty, I was chief of the Appellate Section of the Criminal Division of the Department of Justice for a number of years, and at the time I was retained for this work, I was Chief of the Estates and Trusts Section for the Alien Property Custodian in his Chicago office.
Mr. Robsion. How much experience have you had in revising?
Mr. Barron. Before I took up this work in revising many years ago, I had been a revising editor for the West Publishing Co. in their Digest System in St. Paul.
From 1930 to 1935, I was engaged in revision of the New Jersey Statutes.
I thought I had gotten away from the rather arduous, burdensome and thankless task of statutory revision but when Major Reid of St. Paul urged me to undertake it, I could not resist it.
Mr. Robsion. How long have you been working on this revision?
Mr. Barron. We began work on title 18 in November of 1943.
Even before title 18 was completed, we made a survey of title 28, so that the work on title 28 was going forward long before the close of title 18.
Since title 28 was introduced, we have just about completed another bill that will receive consideration from your committee, we hope, at this session, and that is the revision of title 46, Shipping, which is ready for final printing in pamphlet form, and which within 60 days, I think, will be ready for your consideration.
The answer to Congressman Reed's question illustrates the type of work that is necessary. That section to which he refers was involved in a bill that passed the 1946 Congress. That we consolidated in two sections, 659 and 2111, and the report will show that we wove those three sections into sections 639 and 2117. That was the act that passed Congress July 24, 1946.
Did you say it is being amended at this session or hearings have been held on it?
Mr. Reed. 2117, that is special maritime jurisdiction.
Mr. Barron. 639 is interstate or foreign baggage, express or freight.
Mr. Reed. Maybe that answers it; I do not understand it, though.
Mr. Barron. Now, the first paragraph of the 1944 bill, that is Public Law 534, is consolidated in section 2117, which is over on page 292.
Whoever breaks the seal or lock of any railroad car, vessel, aircraft, motortruck, wagon, or other vehicle, containing interstate or foreign shipments of freight or express.
Mr. Robsion. What page are you reading from?
Mr. Barron. On page 296, section 2117.
In the report on title 18 House Report No. 152, part II, the reviser's notes show that we made these changes in the text while the bill was pending.
We had the reports of Congress, and our reviser's notes showed that the provisions relating to aircraft, airports, aircraft terminals, and air-navigation facilities were new.
A bill pending in the Seventy-ninth Congress, H.R. 4108, to amend these sections, contained such provisions, and passed the House of Representatives November 5, 1945.
That, I might say, is one of the necessary and difficult problems of current revisions. As Congress is in session, we have to watch the pending legislation and the action of the committees very closely and estimate whether it is going to become law so that we can keep current.
I think you will find those sections are quite satisfactory. I hope so.
Mr. Reed. Referring to this one on 659?
Mr. Barron. Yes, sir.
Mr. Reed. I had in mind, for instance, the bottom of page 121, line 20. The revision there is different, and section 3 of the bill, which includes “other shipping documents.” This is the old section.
Mr. Barron. Section 3 of the--
Mr. Reed. Of the Public Law 534. Section 3 of Public Law 534 says:
To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping documents of such shipment shall be prima facie evidence of the place from which and to which such shipment was made.
Now, at the bottom of page 121--
Mr. Barron. I do not know the history of that, Congressman Reed. I would have to make a note and check with our records.
Mr. Reed. The reason I called it to your attention is that just a couple of days ago we reported out an amendment to this Public Law 534. There was a mistake made in Public Law 534 in that very section that I read--Section 3.
Mr. Barron. I see.
Mr. Reed. When we enacted 534, we left out three words; where it says “the place from which and to which,” we left out the words “and to which.”
But I note here in your bill, 1600, that it still has the same wording of the original statute.
Mr. Barron. “From which and to which shipment was made.”
Mr. Reed. Yes; but it leaves out the “other shipping documents,” which is very essential.
Mr. Barron. I think perhaps as this bill proceeds through Congress that other legislation may be enacted and other corrections of this type, if it is your preference that that “other documents” go in, we can provide for that.
Mr. Robsion. Make a note of that.
Mr. Barron. I have, sir. Our revision staff, I assure you, will work as closely with your committee as you desire. We are entirely at your disposal, and as you think changes of that character are necessary, we will furnish you with the data so that either committee amendments or floor amendments can be made as the bill progresses.
We did that with the House Revision Committee, and I am sure we will have as much pleasure in working with your committee.
Mr. Robsion. Of course, in our committee, we plan, as we did last year, through the hearing, to get all the suggestions.
We shall do the same as we did last year in 2200, just read them line by line and have you and other expert codifiers and other persons go over the bill with us.
Mr. Barron. We will be glad to do everything we can to facilitate your work.
Mr. Robsion. Are there any other questions?
(No response.)
Thank you very much.
Mr. Barron. I had a very brief statement, Mr. Chairman.
Mr. Robsion. As long as you are on the witness stand, you may speak.
Mr. Barron. I tried to sum up as shortly and succinctly as I could. It has largely been covered by my good friends Justin Miller and Judge Maris and Congressman Keogh.
These bills simplify and clarify existing laws. H.R. 1600, to revise the Criminal Code, is closely integrated with the new Federal Criminal Rules. Likewise, H.R. 2055, to revise the Judicial Code, is closely coordinated with the Federal Rules of Civil Procedure.
Consequently, to avoid widespread confusion and misunderstanding in Federal practice the revisions should be enacted as soon as possible.
Both bills have been prepared with meticulous care with the whole-hearted cooperation, counsel and advice of leaders of the bench and bar. The Advisory Committee, the Committee of the Judicial Conference on the Revision of the United States Code, the revision staff and all persons concerned in this work, have exercised extreme care to avoid any charges of substantive law, concerning which there might be any controversy.
All of the judges and lawyers who worked on this revision had but the one idea in mind, to present to your body the best possible restatement of the statutory law; one which would clarify ambiguities, eliminate overlapping and conflicting provisions of law and simplify existing law, so as to promote the administration of justice in the Federal courts.
I might add in answer to the Congressman's question about the election franchise, those sections are in two chapters, the civil rights chapter and the chapter on elections, and because the Supreme Court in one of its opinions once referred to that as a sensitive area, we were most careful not to make any changes.
We made changes in phraseology, simplified and clarified, perhaps, but I think you will find that we were watched pretty closely on those sections, too, so you will find, I think, that we faithfully performed our duty in that respect.
Mr. Reed. I have another question, which I think you can answer.
Mr. Barron. Yes, sir.
Mr. Reed. I note on page 7 and I guess prior to page 7 there are certain definitions.
Mr. Barron. Which bill is that, sir?
Mr. Reed. H.R. 1600.
Mr. Barron. Yes, sir.
Mr. Reed. For instance, you define “interstate commerce” and “foreign commerce,” under section 10.
Mr. Barron. Yes.
Mr. Reed. “The term ‘interstate commerce’ as used in this title includes,” and so forth.
Now, getting along here on page 286, section 3, you again define the word “commerce.” I was wondering whether the one on page 7 was not intended to be a definition of commerce throughout the entire title and whether other definitions appearing in other places could not be eliminated?
Mr. Barron. I struggled with that. I do not know how many definitions of commerce and interstate commerce we have in the United States Code. The definition on page 7 is designed to include the entire title but that one on page 286 is the interference with commerce by threats or violence. I called it the racketeering chapter, because it seemed to me the most specific.
That definition includes commerce within the District of Columbia, and we possibly could have eliminated that definition and I think it would have been wiser, except there again was a sensitive area; that I felt the fewer changes in language the less likely I was to have partisans of one side or the other of the controversy enter into it, so it is not good revision to do that but it seemed the better part of valor at that particular section.
Mr. Robsion. Thank you, Mr. Barron.
Mr. Barron. Thank you, sir.
Mr. Robsion. Professor Moore.
STATEMENT OF JAMES WILLIAM MOORE, PROFESSOR OF LAW, YALE UNIVERSITY
Mr. Moore. Mr. Chairman, gentlemen of the Judiciary Committee, my name is James William Moore. I am professor of law at Yale University, and reside at Hamden, Conn.
I am a member of the Montana bar, author of Moore's Federal Practice and editor in chief of Collier on Bankruptcy, 14th edition.
For 2 years, from 1941 to 1943, I was chairman of the American Bar Association standing committee on jurisprudence, and recommended, as the committee before me had done, a revision of the judicial code.
I was chief research assistant to the reporter to the Supreme Court's Advisory Committee on Federal Rules of Civil Procedure. I was retained as special consultant on the revision of the Judicial Code by the West Publishing Co. and Edward Thompson Co., publishers of the United States Code, Annotated. My chief function was to advise on matters of Federal jurisdiction, practice, and other problems related thereto. I have no financial interest in the enactment of the proposed revision.
A copy of H.R. 2055, which you are considering, is not now available to me. I do, however, have a copy of the bill which the Honorable Eugene J. Keogh introduced in June 1946, in the Seventy-ninth Congress, second session, and my references will be to that bill on the theory that the present bill before you is substantially the same.
Mr. Robsion. Are you engaged in the practice of law?
Mr. Moore. Yes, sir. My competence, if any, though, comes from being a law professor and writer, because I have been a professor for too long to know the daily ins and outs of the courts.
METHOD OF PREPARING A BILL TO REVISE THE JUDICIAL CODE
The revision of the Judicial Code was undertaken by the Committee on the Revision of the Laws of the House of Representatives under authority of the act of June 28, 1945, chapter 173, 57 Statute 220. The Honorable Eugene J. Keogh was chairman of this House committee, and Charles J. Zinn and John F.X. Finn were counsel and special counsel, respectively, to the committee.
The actual work of studying the laws to be revised and preparing drafts thereof was undertaken, as I understand it, by the West Publishing Co. and Edward Thompson Co. William W. Barron acted as head of the revision staff and reporter. In addition to the House Committee on the Revision of the Laws, there were two committees which took an active part in the revision. These were the advisory committee and the judicial conference committee.
The advisory committee was set up, according to my understanding, by the two publishing companies mentioned above. It consisted of the Honorable Floyd E. Thompson as chairman, former chief justice of the Illinois Supreme Court, an attorney in Chicago, Ill.; the Honorable Justin Miller, Washington, D.C., former associate justice, United States Court of Appeals for the District of Columbia; the Honorable John B. Sanborn, St. Paul, Minn., United States circuit judge for the eighth circuit; the Honorable Walter P. Armstrong, Memphis, Tenn., attorney and former president of the American Bar Association; and the Honorable John Dickinson, Philadelphia, Pa., general counsel, the Pennsylvania Railroad.
The judicial conference committee was appointed by the Honorable Harlan F. Stone, Chief Justice of the United States.
The committee was composed of the Honorable Albert S. Maris as chairman, Philadelphia, Pa., United States circuit judge for the third circuit; the Honorable Clarence G. Galston, Brooklyn, N.Y., United States district judge, eastern district of New York; and the Honorable William F. Smith, Newark, N.J., United States district judge, district of New Jersey.
In addition, the Honorable John J. Parker, Charlotte, N.C., senior circuit judge of the fourth circuit, acted as judicial consultant. The Honorable Alexander Holtzoff, then with the Department of Justice, now United States district judge for the District of Columbia, and myself acted as special consultants.
Proposed drafts of the revision were initially prepared by Mr. Barron, assisted by the editorial staffs of the West Publishing Co. and Edward Thompson Co. The draft was then submitted to all the persons listed above and after adequate time for consideration a meeting was held to go over, discuss, criticize, and make suggestions on the draft.
At each hearing there was a very good attendance and nearly all of the members of the advisory committee, the judicial conference committee, the judicial, and special consultants were present.
The Honorable Hatton W. Sumner, former chairman of the House Judiciary Committee, appeared at one time or another briefly and one of his representatives sat in at a number of our meetings. In addition, when the matter of the United States Supreme Court's original and appellate jurisdiction came up, we had the honor of the attendance of Chief Justice Stone and Justices Douglas and Frankfurter.
Over a period of about a year and a half, four drafts in all were prepared and discussed at meetings prior to the introduction by Mr. Keogh of the bill at the last Congress. In addition, as I understand it, the drafts were sent to all members of the Federal judiciary and to other interested persons, with a request for comment; and any comments that came in were considered by us.
The method of preparing the revision of the Judicial Code was somewhat the same as that followed by the Supreme Court's Advisory Committee on the Federal Rules of Civil Procedure in preparing the original draft of the rules and also in preparing the proposed amendments which are now before Congress.
PURPOSE AND SCOPE OF THE REVISION
The general purpose and scope of the bill can be stated as a revision of title 28 of the United States Code. This general purpose and scope can be better understood by some background references. A revision has long been advocated by the American Bar Association.
Congress has made only two general surveys of the field of Federal court jurisdiction and operation: When the original Judiciary Act of 1789 was prepared, and in 1911 when the Judicial Code was enacted.
In 1939, in support of a House resolution, which would have authorized revision, Congressman Chandler ably pointed out that the Judicial Code did not cover the entire judiciary field, that it has been repeatedly amended, and that it contains much obsolete material. [Reading:]
The Judicial Code was enacted on March 3, 1911, after 2 years' study. Almost 30 years have passed since that study was made. The code which was adopted has been amended about 200 times, but has not been revised or reenacted as a whole. The remainder of title 28 of the Code of the Laws of the United States was enacted at various times from 1874 to 1938. There have been numerous amendments of those provisions, but no revision or reenactment since June 22, 1874. The assembling of all the provisions of title 28 of the United States Code (in 1926) has been of the highest practicable value; but since that is merely prima facie evidence of law, it is not an adequate substitute for a revision and reenactment.
Congressman Chandler appended a statement prepared by the Legislative Reference Service of the Library of Congress, setting forth provisions relating to the judiciary not expressly repealed which should be repealed or incorporated in a new edition of the Judicial Code; provisions included in title 28 of the United States Code which have been amended or superseded by later legislation found elsewhere; provisions included in title 28 which have been affected by the Federal Rules.
This latter point is worth elaboration. The Federal Rules supersede inconsistent statutes by virtue of the rule-making act under which the rules were promulgated. This fact, as pointed out, has added to the Code's obsolescence.
As I see it, the revision involved at least the following problems:
(1) A study of the materials contained in title 28, United States Code, and other materials that were properly related to the Federal judiciary and which should be contained under title 28.
(2) Elimination of deadwood.
(3) Improvement.
The latter might have involved far-reaching change. For example, diversity jurisdiction might have been eliminated, as many have advocated. But the revision has made no basic changes.
I shall now proceed to point out in some detail certain changes which I regard as fairly important.
SPECIFIC COMMENT
The revision is a statement of the law and not merely presumptive. If enacted, the revision will state the law on matters covered by it. See sections 2-35 following the general sections comprising section 1 of the bill, particularly section 35 which lists laws repealed.
The Judicial Code, which became effective January 1, 1912, enumerated certain specific statutes which the code expressly repealed. The last paragraph of section 297 of the code, however, provided:
Also all other acts and parts of acts, insofar as they are embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this act had not been passed.
As Judge Dobit pointed out in his book on Federal Procedure, pages 40, 43, and 44--
The question of when a statute is embraced within, and thereby superseded by, the Judicial Code is frequently one of no little difficulty.
And while the United States Code of 1926 represented--
an attempt by Congress to restate, in convenient form and arrangement, the general and permanent laws of the United States in force on December 7, 1925--
it enacted no new law and repealed no law.
In the first paragraph of the preface to the United States Code it is stated that the code--
is prima facie the law. It is presumed to be the law. The presumption is rebuttable by production of prior unrepealed acts of Congress at variance with the code.
Considering the breadth and scope of the United States Code, this seems proper. Now, however, in attempting a revision of what is essentially only one title of the United States Code, it seems proper to state what the law is and not make the revision merely presumptive of the law. The Federal judiciary, practitioners, and other interested parties are entitled to that much certainty. This was the course essentially followed when the Bankruptcy Act of 1938 was enacted.
REGISTRATION OF JUDGMENTS
Section 1963 provides for the registration of Federal judgments for the recovery of money or property in any other Federal district court. Provision for the registration of judgments in other courts is possible in some 46 British jurisdictions; and has been supported as to all judgments, State as well as Federal, by the American Bar Association, which has advocated congressional legislation in this matter since 1927.
The Supreme Court's advisory committee recommended a rule for the registration of Federal judgments in 1937, but the Supreme Court did not promulgate the rule. While this matter may or may not be within the competence of the rule-making power, it is certainly within the competence of Congress at this time to provide for the registration of Federal judgments.
ASSIGNEE CLAUSE ELIMINATED
The assignee clause, which is found in present Twenty-eighth United States Code, section 41(1), and is a restriction upon diversity and alienage jurisdiction, has been eliminated. It was thought that because of the difficulties in construing the assignee clause and because of Twenty-eighth United States Code, section 80, whose substance is stated in section 1359 of the revision, and which requires a district court to dismiss an action where any party by assignment or otherwise has been improperly or collusively made to invoke jurisdiction, all that is necessary is accomplished by section 1359.
VENUE
Venue provisions have not been altered by the revision. Two changes of importance have, however, been made. Improper venue is no longer grounds for dismissal of an action in the Federal courts. Instead the district court is to transfer the case to the proper venue. See section 1406. And section 1404 introduces an element of convenience which gives the court the power to transfer a case for the convenience of parties and witnesses to another district. Both of these changes were in line with modern State practice; and the provision for change of venue on the grounds of convenience is also embodied in the Bankruptcy Act for corporate reorganization, section 118, Eleventh United States Code, section 518.
REMOVAL
Considerable improvement has been made in stating the procedure for removal. For example, the removal petition is to be filed first with the United States district court and no action by the State court is necessary. See section 1448. This effects a much more workable procedure and less conflicting points of view on jurisdiction than under the present practice where, in the main, the removal petition must first be presented to the State court, although its denial of the petition does not prevent the petitioner from removing the case to the Federal district court, and I believe considerable improvement has been made by section 1441(c) relative to the removal of separable controversies and separate units--a matter which is in great confusion at the present time.
STAY OF STATE COURT PROCEEDINGS
Section 2283 changes the construction which the Supreme Court put upon present 28 U.S.C. section 379 in Toucey v. New York Life Insurance Company (1941) 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 135 A.L.R. 1222, where the Supreme Court ruled that a Federal court could not enjoin relitigation of a matter in a State court proceeding; in other words, the Federal district court could not protect its judgment.
CAPACITY OF RECEIVERS TO TAKE POSSESSION OF PROPERTY AND SUE AND BE SUED
Section 754 has broadened the principles contained in 28 U.S.C. Section 117 by giving a receiver the right to take possession of property in any district, and the capacity to sue. The necessity for ancillary receiverships is eliminated. The present law relative to suability of receiver is continued in section 959.
DISPOSITION OF CASES WHERE THE SUPREME COURT LACKS A QUORUM
Six Justices of the Supreme Court continue to constitute a quorum under the revision as under the present law. Section 1. The revision does, however, provide rather satisfactory means for the disposition of a case where a quorum is lacking. See section 1209. This is built upon the act of June 9, 1944, amending the Expediting Act, 15 U.S.C. Section 29.
The above enumeration is not, of course, meant to be exhaustive, and, of course, there will be differences of view as to the importance of other changes. It is my opinion that on the whole the revision represents a carefully considered appraisal of present provisions dealing with the Federal judiciary and that after due consideration it deserves to be enacted in substantially the form as now presented.
Improvements undoubtedly can be made. Inclusion of other materials may be necessary due to continuing legislation, such, for example, as the enactment of the Federal Tort Claims bill toward the end of the last session of Congress. But a revision at this time is certainly proper, and the present bill affords a substantial basis for the undertaking.
If I can be of any further assistance to the committee, it will be a pleasure to wait upon you.
Thank you.
Mr. Robsion. Thank you, Mr. Moore, for a very fine statement. It is an excellent contribution to these proceedings.
Now, if the committee will bear with me, I have a letter here from Judge Floyd E. Thompson. He was a member of the advisory committee that we have spoken about here. He now resides in Brooklyn, N.Y.
I would like to introduce for the record this letter, dated March 5, 1947, that I received from him, if there are no objections.
(The letter is as follows:)
REVISION OF TITLE 28, UNITED STATES CODE, JUDICIAL CODE, AND JUDICIARY
(By the joint editorial staffs of West Publishing Co. and Edward Thompson Co., under the supervision of the Committee on Revision of the Laws, Hon. Eugene J. Keogh, New York, chairman)
BROOKLYN, N.Y.,March 5, 1947.
HON. JOHN M. ROBSION,
United States House of Representatives, Committee on the Judiciary, Washington, D.C.
MY DEAR MR. ROBSION: Being engaged in the trial of an important case, I shall not be able to attend the hearing by the House Judiciary Committee on March 7 on H.R. 1600 and H.R. 2055.
The revision of title 18 (H.R. 1600) is urgent. Statutory provisions defining crimes and fixing punishments are found in many titles. The statutes are inconsistent and follow no scientific pattern. Our committee did not attempt a revision of the Federal criminal law and procedure because we had no such authority. However, we did undertake to bring together in one title all of the provisions relating to criminal law, to group the provisions so that the code is more usable and to clarify the language and remove inconsistencies without changing substance. All of the changes which were made by us are noted in the footnotes for the convenience of the Members of Congress.
The details of the revision will no doubt be given to you by Mr. William W. Barron, the reviser, and so I shall not give further attention to them.
The revision of title 28 (H.R. 2055) was the project undertaken after the revision of title 18. While it was my privilege to continue as chairman of the advisory committee there were changes in personnel, as you will note on the flyleaf of the committee draft. This title is one of great importance and care was exercised in rearranging the material in the code, rewriting some of the provisions to clarify the meaning, and adding or eliminating provisions as seemed to be necessary to bring the title up to date. Many of the statutory provisions relating to the judiciary are obsolete and there are obvious gaps in the present statute. The reviser for this title, Mr. Barron, will no doubt be available to give you the details of the changes and the reasons therefor, supplementing the information which appears in the footnotes to the draft. Now that rules have replaced so many of the statutory provisions a revision is urgent and now is the time to make the revision.
The successive drafts of the revisions were submitted to committees of bar associations for study and suggestions and our group had the benefit of criticisms of these committees. The revision of the judicial code was submitted to the judges and I think it is not too much to claim for the revision to say that it is the work of the Federal judiciary. While a job done by busy judges and busy lawyers is never quite satisfactory, I think the revised titles which you are studying represent a great improvement in Federal law and that, as revised, they will serve the public interest.
Assuring you that I regret my inability to meet with your committee for study of this important legislation and commending the legislation to your thoughtful consideration, I am Sincerely yours,
FLOYD E. THOMPSON.
Mr. Robsion. I have also a letter from Hon. Harvey T. Reid, editor in chief of the West Publishing Co.
(The letter is as follows:)
WEST PUBLISHING CO.,
St. Paul, Minn., March 3, 1947.
HON. JOHN M. ROBSION,
House of Representatives, Washington, D.C.
DEAR MR. ROBSION: In connection with the hearings on H.R. 1600 and H.R. 2055, which I understand will be held on Friday, March 7, I am taking the liberty of submitting a brief statement for such purpose as you may deem advisable.
As editor in chief of West Publishing Co. and associated with the Edward Thompson Co., to whom the Committee on Revision of the Laws have entrusted the preparation of these important bills, I have had the privilege of serving your committee in the preparation of the original United States Code, which Congress enacted in 1926. I have had the privilege of serving your committee on the supplements and new editions of the United States Code continuously since that time.
We, therefore, have associated our ability and our best efforts with this outstanding statute publication since its inception and for over 20 years.
When Congress authorized the revision of the criminal code and the judicial code, we considered it so far-reaching and such an important project that the writer has given his personal and undivided attention to this enterprise during all its editorial preparation. Nothing has been left undone which would contribute to the successful preparation of these two bills and which would assure that both bills should reflect most creditably upon this company, which carries a high name in the Federal statute field, as well as upon your committee and upon the Congress itself.
The preliminary research work was carried out in the most exhaustive manner by a competent staff of legal editors of the joint companies, West Publishing Co. and Edward Thompson Co., thoroughly experienced in Federal statute work, all of whom possess unusual experience and ability in Federal statute work, staff was strengthened and supplemented by technical and special assistants of the highest caliber possible to obtain.
As each portion of the work was completed, it was submitted to an independent advisory committee of outstanding lawyers and judges, who held special meetings in New York, Brooklyn, Washington and Chicago, to go over word by word each portion of each revision.
Drafts of the work at various stages of progress were submitted to outstanding lawyers and judges throughout the country and their assistance and suggestions obtained for consideration by the legal editorial research staff and by the advisory committee.
H.R. 1600 is in every way responsive to the new criminal rules and its enactment at this time would do much to eliminate any confusion in the administration of criminal justice in the Federal courts.
The proposed revision of the judicial code is in every way responsive to the new Rules of Civil Procedure, and would likewise clarify this branch of our jurisprudence and its administration by the courts.
Both bills are completely up to date to January 1, 1947.
Both bills have received written and oral commendation by leaders of the bench and bar, and their early passage is strongly and confidently recommended.
Respectfully submitted.
WEST PUBLISHING CO.,
HARVEY T. REID,
Editor in Chief.
Mr. Zinn. Judge Sanborn is not here. I believe he is submitting a statement to you in writing, Mr. Chairman, and I would suggest that when it comes in, it might be made part of the record of these hearings, together with any other statements that several other persons have indicated a desire to submit. Several persons have indicated a desire to submit statements in writing, and I wish to suggest that they be made part of the record.
Mr. Robsion. I have a letter here from Judge Sanborn.
(The letter is as follows:)
LETTER OF JOHN B. SANBORN, UNITED STATES CIRCUIT JUDGE, EIGHTH CIRCUIT,
RELATIVE TO H.R. 2055, A BILL TO REVISE THE FEDERAL JUDICIAL CODE
MARCH 5, 1947.
I am a judge of the United States Circuit Court of Appeals for the Eighth Circuit. I was appointed a circuit judge in February 1932. Prior to that time I was for 7 years a district judge for the District of Minnesota. I am familiar with the revision of the Federal judicial code proposed by the former Committee on Revision of Laws of the House of Representatives. This revision is embodied in H.R. 2055.
I was a member of the advisory committee which reviewed, section by section, the work of the revisers who prepared the proposed revision. I attended all the meetings. The revision constitutes an orderly restatement, in concise and plain language, of the substance of present statutes relating to the Federal judiciary. Any departures from the strict letter of existing statutes have been carefully noted by the revisers, and represent improvements of a noncontroversial character. Printed drafts of the proposed revision, with the revisers' notes, have been distributed to the judges of the Federal courts and to other members of the legal profession, and have been carefully examined and reviewed. The proposed revision is a vast improvement over the existing judicial code, which consists of miscellaneous statutes enacted at widely separated intervals of time, many of which statutes were poorly drafted and confusingly expressed. I earnestly recommend the adoption of H.R. 2055.
JOHN B. SANBORN,
United States Circuit Judge.
Mr. Robsion. I have a letter from Mr. Walter P. Armstrong, a former president of the American Bar Association, of Memphis, Tenn.
(The letter referred to is as follows:)
My name is Walter P. Armstrong, and I reside in Memphis, Tenn., my office address being 800 Commerce Title Building, Memphis. I am a graduate of Yale College (B.A., 1906) and of Yale Law School (L.L.B., 1908), and have been engaged in the active practice of law at Memphis, Tenn., since 1908 and am still so engaged. A large portion of my practice has been and still is trial work, especially in the Federal courts, and I believe that I am entirely familiar with the work of the Federal courts in civil cases. I was chairman of the committee on jurisprudence and law reform of the American Bar Association for a number of years, and at that time made a complete study of the United States Judicial Code. I continued this interest during the year I was president of the American Bar Association (1941-42). I have written a number of articles which have been published concerning Federal practice and procedure.
My experience had convinced me that the United States Judicial Code was in great need of revision in many particulars, and, in my judgment, after the adoption of the Federal Rules of Civil Procedure, this was the reform most needed in Federal practice. It is because of this belief that I accepted and acted as a member of the advisory committee which cooperated in the present revision of the Code. I had before this worked with a number of groups which had been concerned with various reforms of procedure and practice, both Federal and State. I think that the group which worked on the revision of this Judicial Code was admirably arranged, composed as it was of judges, practicing lawyers, and law-school professors. In addition, a number of judges who were not members of the group appeared before it when sections affecting their courts were under consideration. This was notably true of Chief Justice Stone and Mr. Justice Frankfurter, who discussed with the group the question of the appellate jurisdiction of the Supreme Court of the United States. I kept thoroughly informed of the work of the committee and attended many of the hearings. Each section of the Code was carefully considered, and all about which there could be any difference of opinion were thoroughly debated. The editorial staffs of the West Publishing Co. and the Edward Thompson Co. did an excellent job in facilitating the work of the group, and it is difficult to see how this part of the task could have been better performed. Hon. Eugene J. Keogh, chairman of the House Committee on Revision of the Laws, attended many of the hearings and made a substantial contribution to the result. The revision, in my judgment, is a great improvement on the present Judicial Code, and I think it
would be most unfortunate if it is not adopted.
WALTER P. ARMSTRONG,
Mr. Robsion. I have a letter from Mr. John T. Cahill, of New York, who is a member of the American Bar Association.
(The letter referred to is as follows:)
CAHILL, GORDON, ZACHRY & REINDEL,
New York 5, March 5, 1947.
HON. JOHN M. ROBSION,
Committee on the Judiciary, Old House Office Building, Washington, D.C.
DEAR CONGRESSMAN: I write to commend your favorable attention to the bill embodying the revision of title 18 of the United States Code Annotated (the Criminal Code).
I served as a member of the advisory committee which worked under the supervision of the Committee on Revision of the Laws by the joint editorial staffs of West Publishing Co. and Edward Thompson Co., publishers of the United States Code Annotated.
To my personal knowledge, the advisory committee devoted long and careful thought to each revision it recommended. Based on that personal knowledge, it is my belief that the revision of title 18 is constructive and in the public interest. I ask your favorable consideration of it.
Very truly yours,
JOHN T. CAHILL,
Mr. Robsion. Now, the Department of Justice, I believe, is represented here today.
We invited Mr. Clark, the Attorney General, but he was not able to be present here today.
STATEMENT OF HAROLD I. BAYNTON, SPECIAL ASSISTANT TO THE ATTORNEY GENERAL
Mr. Baynton. I am special assistant to the Attorney General. I should say that the Attorney General is not in town, or was not this morning. He should come in this afternoon some time but he could not be here this morning.
The Department, of course, has been highly in favor of the codification of the United States Code. The great advantages of such codification have pointed out by prior witnesses. I think the example was best given by the judge speaking on the amount of work necessary to go back to the original statutes when you really have to question specific language.
With respect to the bill to codify title 28, the Department has been gathering memoranda from all its various divisions and from United States attorneys with the hope of making a comprehensible report on that bill. We have that material. It was ready to be worked on the latter part of last year. We waited to see the bill that was to be introduced in this Congress, which we now have. We have not been able to prepare our report so that we could present it to you. It will be forwarded promptly.
Mr. Robsion. What about H.R. 1600?
Mr. Baynton. Mr. Strine, of the Criminal Division, will speak to you on that, if he may, following me.
Mr. Robsion. When may we have your report, do you think, on H.R. 2055?
Mr. Baynton. We are taking some matters up with Mr. Barron now, Mr. Chairman, which we think will resolve a great deal of our difficulties, and I do not think that will be very long.
We are in favor of the codification.
Title 28, we think, is one of the most important of the whole code and we want to do everything we can to assist the committee in properly codifying that title.
That is all I have to say on the matter.
Mr. Robsion. Are there any questions?
(No response.)
Mr. Robsion. We thank you very much for coming up, and for your statement.
Now we will have Mr. Strine, from the Department of Justice.
STATEMENT OF FRED E. STRINE, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Mr. Strine. Mr. Chairman and gentlemen of the committee, my name is Fred E. Strine. I am an attorney in the Criminal Division of the Department of Justice, where I have been employed since 1936.
I should add to what Mr. Baynton has said regarding H.R. 1600 that the Department is in favor of a codification of the various titles of the United States Code, and H.R. 1600 is a very important one. Since the criminal laws have not been codified since 1909, a revision of title 18 is probably overdue and the early enactment of this bill would be very advantageous from our standpoint, I believe.
The Department is in about the same position on H.R. 1600 as Mr. Baynton just mentioned regarding H.R. 2055. The Attorney General has not submitted a formal report. We have been for some time examining the bill and its predecessor, H.R. 2200.
Our examination of H.R. 1600 discloses that there are a number of matters which the Attorney General should probably make some comment or suggestion upon. However, they are minor matters which I think can be handled informally with the revision staff quite easily. In fact, we have already taken most of them up with Mr. Barron. I think they are matters which can be straightened out without any great trouble.
Beyond this, I do not believe I have anything to say on H.R. 1600 at this time.
Mr. Robsion. Can you give us any ideas as to when you can give us a report on H.R. 1600?
Mr. Strine. Certainly as soon as on the other bill, H.R. 2055. Mr. Barron and I are currently not far apart and it will certainly be no longer than the report on the other bill.
Mr. Robsion. That does not give us much comfort. You say it is important but last year we did not get our bill in time to get it acted on in the Senate. We spent a lot of time in developing this codification and revision up to this point. We are very anxious to get action on it, get it into the House early and getting it passed in the House and on over to the Senate.
Mr. Gossett. Mr. Chairman, I wonder if the witness could give us in his best judgment the amount of time that the Department would require in terms of weeks or days or about when we might expect these reports.
Mr. Strine. I wonder if Mr. Baynton has any idea on his bills?
Mr. Baynton. I beg your pardon, sir?
Mr. Strine. The committee was wondering about how much time would be required for reports on these bills.
Mr. Baynton. Mr. Barron and I are meeting next Wednesday, and it should not take us very long to cover the judiciary bill. I think that the Criminal Code bill is even closer to agreement than the other bill. I would not like to set a time, but it is certainly not going to be delayed and it is going to be pushed.
Mr. Chelf. Would it take over 2 weeks?
Mr. Baynton. I do not think so.
Mr. Chelf. I hope not, because from what the chairman has just said, it is more important, as you understand, because by the time it goes through here and gets to full committee and gets on the floor, we do not want to have a beautiful job such as these men have done to meet the same fate as it did last time. It would be criminal.
Mr. Baynton. I appreciate that.
Mr. Chelf. And I feel that if you gentlemen could assign someone to this task and get this report in here, you will not only be helping yourself, you will be helping everyone else connected with it.
Mr. Baynton. It is not so much the matter of assigning someone to the task today. I mean, the job has to be done and we will go right ahead and do it and we will have to let our other work slide, which we are glad to do.
Mr. Robsion. We are urging our publishers to keep right on the heels of the Department of Justice so this thing can be worked out.
Mr. Baynton. I think we are being very closely followed, Mr. Chairman.
Mr. Robsion. They may not get any money unless they get this thing through here. We cannot spend time and a lot of money introducing these big bills and then have them die.
I know that you are making a special effort down there in the Department of Justice, and the publisher will, too, to get a report, say, within 10 days, because we want to meet our committee and go over this bill and go over it in the light of your report.
It is holding us all up until your gentlemen get in these reports.
Mr. Baynton. I can assure you, sir, that we will get the report to you as rapidly as possible.
Mr. Robsion. Thank you.
Now, there are some other gentlemen back there.
Do some of you want to be heard?
Mr. Zinn. Mr. Chairman, Mr. Chandler, the Director of the Administrative Office of the Courts, was here earlier and he had to leave, as did Mr. Whitehurst, but I see Mr. Leland Tolman, of the Administrative office, is here and perhaps he would be willing to give us the reaction of his Office to the bills, briefly.
Mr. Robsion. He is with Mr. Chandler?
Mr. Zinn. He is with Mr. Chandler's office.
STATEMENT OF LELAND TOLMAN, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS
Mr. Tolman. Mr. Chairman, my name is Leland Tolman.
Mr. Robsion. Mr. Whitehurst has gone?
Mr. Zinn. He had to leave.
Mr. Robsion. Of course, we expect Mr. Chandler, if he cannot appear in person, to submit a statement.
Mr. Tolman. I will be glad to ask Mr. Chandler to do that, Mr. Chairman. He asked me to say that he was very sorry that he was called away and he also wanted me to say generally for him that we have cooperated both with the Judicial Conference and with the committee appointed by the Chief Justice, of which Judge Maris was chairman, in considering the bill in particular and the general parts of it.
Mr. Robsion. From our Committee on the Revision of the Laws, we know how splendidly your office over there has cooperated with us in our work in every way. We appreciate it very much.
Mr. Tolman. Thank you, sir.
Mr. Robsion. You may make any statement you want to make.
Mr. Tolman. I have nothing to say, except that we are, of course, as you know, heartily in favor of the project and we will be glad to give any further help to the committee that we can.
That is all that Mr. Chandler asked me to say.
Mr. Robsion. Are there some others?
I notice Mr. Irving Jurow, the legislative counsel for the Federal Deposit Insurance Corporation down in the back of the room.
Do you want to make a statement?
Mr. Jurow. No.
Mr. Robsion. Do you want to submit a statement?
Mr. Jurow. We may. We have not completely decided on it.
Mr. Robsion. If you submit a statement, I hope you will be able to do it soon.
And Mr. Meldrim Thomson, the editor in chief of the Edward Thompson Co. is here. He would be interested in answering any questions.
I do not think he wants to make any statement.
Come right around, Mr. Thomson. I wanted to see you. You are the ramrod of one of the concerns.
You see, we have a contract with the Edward Thompson Co. and the West Publishing Co. to collaborate with us and these other groups to get out this code. They are getting some pay for it but nothing compared to what they have paid out to help us.
You may tell us anything you wish to say.
STATEMENT OF MELDRIM THOMSON, EDITOR IN CHIEF, EDWARD THOMPSON CO.
Mr. Thomson. Mr. Chairman, and gentlemen of the committee; There is really nothing that I can add to what has already been said here. I would like to say to the committee that Mr. H.T. Reid, editor in chief of the West Publishing Co., is personally very sorry that he could not appear today. I do not know of any single man who has consistently through the years devoted more attention to Federal statute work than Mr. Reid.
I might also say for the publishing houses that in all of the experience we have had in statute work for various States and for the Federal Government with our own private publications before the United States Code was prepared in 1926, that at no single period of time have the two companies devoted themselves more carefully and thoroughly to an assignment than they have to that of revising titles 18 and 28.
I think that Mr. Reid and Mr. Barron and all of the gentlemen who have been associated in this very important undertaking, and I feel that they have given their best efforts through the 3 years of this work.
If there are any questions, I will be happy to answer them.
Mr. Robsion. I would like to inquire, for the membership of the House and our committee as well, what experience has your company had, has the West Co. had, in this work of revision and codifying?
Mr. Thomson. The Edward Thompson Co. published a private set of statutes, Federal Statutes, Annotated, for a number of years prior to 1926. The West Publishing Co. at that time had a competing set of statutes, compiled statutes annotated. United States Compiled Statutes, Annotated. It was because of their experience in the field at that time that the Committee on Revision of the Laws asked the two companies if they would assist them in preparing the United States Code. I know that those companies sent a large staff to Washington in 1925 and 1926 and they spent many months preparing the United States Code.
Since that time, they have had the privilege of working with the committee in preparing the various annual supplements, and the 1934 edition of the code, and the 1940 edition, and we are presently engaged in preparing for you gentlemen a 1946 edition of the United States Code.
We, of course, have had considerable experience in statute work with various States. We there in New York prepared the Consolidated Laws for the State of New York and have worked with the West Publishing Co. in preparing several other statutory sets for other States; Florida, Minnesota, and some of the others.
Mr. Robsion. You mean revision and codifying?
Mr. Thomson. Yes, sir. Some of the work has been codification and some revision.
These bills are of the nature of revision, and codification is more the collation of statutes and arrangement of them.
For example, in New York, we, as publishers, do not attempt to, or cannot, in fact, touch the wording of the statute, but New York has a very fine system that was worked out in 1909 by which, when the legislature is amending, we will say, a section of the Criminal Code, they refer to it specially, and the legislature itself, through the years, keeps the various titles up to date.
From time to time, they may find it necessary to revise merely a title of the Consolidated Laws.
Mr. Robsion. Are there any questions?
Mr. Reed. No, sir.
Mr. Robsion. Thank you, sir.
Now, is Mr. Klepinger here?
He was the clerk for our committee. He is now a practicing lawyer in the District of Columbia.
STATEMENT OF ROBERT F. KLEPINGER, ATTORNEY, WASHINGTON, D.C.
Mr. Robsion. Mr. Klepinger, you might tell who you are and your background.
Mr. Klepinger. My name is Robert F. Klepinger.
Mr. Robsion. Do you know anything about the revision and codification of laws?
Mr. Klepinger. A little. I am a practicing lawyer in the District of Columbia. For about 8 years I was clerk to the old Revision of the Laws Committee when the United States Code was enacted by Congress.
When the revision of these two code titles was begun I was retained by the West Publishing Co. on their staff to assist in the revision.
I have furnished Congressman Robsion with a short summary as to the benefits which will be derived if the Congress enacts these titles into positive law.
I recall an inquiry that was made this morning about whether the Ramseyer rule had been complied with and I can say that it has been to the letter, in the reports accompanying these two bills.
Mr. Robsion. Do we have a copy of the statement?
Mr. Klepinger. I left it with you Mr. Chairman. You are welcome to put it in the record, if you care to.
Mr. Robsion. I have too many papers here and as a lawyer in court said, because I had too many papers, I lost my case.
(The memorandum referred to is as follows:)
Memorandum for Congressman Robsion, in re H.R. 1600 and H.R. 2055.
These bills completely revise the Federal laws relating to:
(a) Crimes and criminal procedure, title 18, United States Code; and
(b) The judiciary and judicial procedure, title 28, United States Code. Such bills provide that those revised titles be enacted into positive law.
REASONS FOR ENACTMENT
1. Those laws will be easy to find because of their arrangement, numbering, and classification.
2. They have been rewritten in simple, direct, and clear language.
3. Hundreds of obsolete and executed provisions are eliminated and will be repealed.
4. Uncertainty will be ended; there will be no more need to examine the many volumes of the Statutes at Large. These bills, upon enactment, will be included in the United States Code.
5. The original intent of Congress is preserved. This is because Federal decisions were followed which settled any doubt and, in addition, a uniform style of statutory expression was adopted.
6. All offenses are defined simply, thus avoiding repetitions. The only changes of any substance in the criminal statutes are those which harmonize and make uniform the punishments for felonies and misdemeanors in the interest of justice.
7. The removal procedure in the judicial title is greatly simplified. It requires that the petition be filed in the United States district court instead of in the State court.
A number of new sections are added. All are based on recommendations of the Judicial Conference of the United States and bills which have received favorable consideration by the House or Senate.
8. Every item of revision is carefully explained in the reports to these bills.
(Note.--A codification merely assembles all the laws, no matter how poorly drafted, in a code without attempting to make corrections and improvements; a revision cures the defects and restates the laws simply and understandably.)
Mr. Klepinger. I can add very little to what has been said already this morning. I might say this--
Mr. Robsion. To what extent have you helped supervise this?
Mr. Klepinger. I was on their revision staff and assisted in going over all these statutes in connection with their revision, both the criminal and the judicial titles.
Mr. Robsion. You know with what care that work has been done?
Mr. Klepinger. With the greatest care possible and by statutory experts possessed of years of experience. I think it will be fortunate for the country if these bills are enacted. They represent the first steps in the great program of restating the laws of our country in simple, direct, and clear language which all may readily understand. For those who are interested in reading and appreciating the history and program of revising the Federal laws, I refer them to the remarks of Representative Fitzgerald, of Ohio, under whose direction the United States Code was enacted by Congress. These will be found in the Congressional Record of February 27, 1931.
Mr. Robsion. Thank you very much.
Now, Mr. Zinn.
STATEMENT OF CHARLES J. ZINN, LAW REVISION COUNSEL, COMMITTEE ON THE JUDICIARY
Mr. Zinn. There is very little that I can add, Mr. Chairman. I have for 8 years been counsel to the Committee on Revision of the Laws, and have acted as liaison between the committee and the publishing companies and between the committee and the various departments and other agencies and other people interested in the revision of these statutes.
I can only say that the revision staff has devoted itself very wholeheartedly and conscientiously to the work of the preparation of these bills.
There is one thing that I would like to point out.
Mr. Robsion. Have you ever, in your lifetime, engaged in the practice of law?
Mr. Zinn. Yes; I have been admitted to the bar for 16 years in the State of New York and for 8 years in the District of Columbia.
For the last 8 years I have largely given up personal attention to my practice, particularly in the last 2 or 3 years, and have devoted myself to the work of revision and the codification of laws, and the preparation of the code, the new edition of the code, the 1940 edition, the District of Columbia Code, the 1940 edition, and the various supplements to the two codes.
I am active in Bar Association work, being a member of the council of the section on criminal law of the American Bar Association, chairman of the Committee on Federal Legislation of Brooklyn Bar Association and in the New York State Bar Association.
There is one thing that I would like to point out, and I do not think anyone else has mentioned this this morning, and that is the rule of statutory construction.
In the work of revision, principally codification, as we have done here, keeping revision to a minimum, I believe the rule of statutory construction is that a mere change of wording will not effect a change in meaning unless a clear intent to change the meaning is evidenced.
To find out the intent, I think the courts would go to the report of the committee on the bills and these reports are most comprehensive. We have incorporated in them Mr. Barron's notes to each section of the bills, both the criminal code and the judicial code.
It is clearly indicated in each of those revisers' notes whether any change was intended so that merely because we have changed the language--we have changed the language to get a uniform style, to avoid awkward expression, to state a thing more concisely and succinctly--but a mere change in language will not be interpreted as an intent to change the law unless there is some other clear evidence of an intent to change the law.
So on that basis, I believe many fears may be allayed. People who are afraid that we are changing the law to a great extent need not worry particularly about it.
Mr. Gossett. Mr. Zinn, I probably have those reports in my files somewhere but do you have extra copies of them?
Mr. Zinn. I will see that you and the other members of the committee get them.
Mr. Gossett. I would like a report on both bills.
Mr. Zinn. Yes, Mr. Gossett.
In connection with the repeal provisions, one of the reasons why many of the laws that are enacted today have only indefinite repeal provisions is that there has not been a body of positive laws to which Congress could look to determine just what they were to repeal in drafting new legislation and rather than to hunt through the Statutes at Large and other places to find out what should be repealed these indefinite repeal provisions have crept into statutes.
If we get these two bills enacted and other bills codified and enacted into positive law, that difficulty will not face Congress in the future. They will know whatever they want to change can be found in the specific title of the code and they can have a specific repeal provision in their new bill.
I urge that the subcommittee consider these bills and as soon as we have the reports of the departments and some other persons who have indicated that they want to report, that we take them up as quickly as possible with a view to having them enacted as early as possible in the session.
Thank you, Mr. Chairman.
Mr. Robsion. Thank you.
I will just take a half minute here.
We have a letter from John J. Parker, judge of the fourth circuit. He has been associated with the committees in developing this revision and codification. He writes here that it is a job well done and he thought it ought to be reported favorably.
(The letter referred to is as follows:)
UNITED STATES CIRCUIT COURT OF APPEALS
FOURTH JUDICIAL CIRCUIT
MARCH 5, 1947.
HON. JOHN M. ROBSION,
Old House Office Building, Washington, D.C.
MY DEAR MR. ROBSION: I have just returned to my office and find your kind letter of February 28 inviting me to appear before Subcommittee No. 1 of the House Judiciary Committee on Friday, March 7, or to submit a memorandum, relative to H.R. 2055, the bill to revise the Federal Judicial Code.
I should like very much to appear before the committee in advocacy of the bill; but due to pressure of other matters, I find it quite impossible to do so. The revision of the Judicial Code has been very carefully made; and in my opinion it constitutes a splendid piece of work. On a number of occasions prior to my departure for Germany in October 1945, I had the honor as judicial consultant of meeting and advising with the committee which had the revision in charge, and was thus enabled to see from the inside the efforts that were being put forth. A revision of the Federal Judicial Code is much needed; and I feel that the revision offered meets the requirements in a splendid way.
With high personal regards and best wishes, I am,
Sincerely yours,
JOHN J. PARKER.
Judge John B. Sanborn, judge of the Eighth Circuit Court of Appeals, writes along the same line. He also helped in this revision.
I believe I called attention to some other letters.
Mr. Gossett. You are going to put all those in the record?
Mr. Robsion. We are going to put them in the record, if there is no objection.
And Mr. Cahill, I believe, from New York, I believe he was formerly a member of the American Bar Association.
Mr. Zinn. Formerly United States attorney for the southern district of New York, Mr. Chairman. He was a member of the advisory committee in connection with H.R. 1600, the Criminal Code.
Mr. Robsion. Thank you.
STATEMENT OF JOHN F.X. FINN, NEW YORK, N.Y., FORMER SPECIAL COUNSEL TO THE HOUSE COMMITTEE ON REVISION OF THE LAWS, AND MEMBER OF THE NEW YORK STATE LAW REVISION COMMISSION
H.R. 1600
Mr. Finn. Mr. Chairman, I have heard it said that the Criminal Code proposed by H.R. 1600 is not daring enough. And I have heard it said that it is too daring. If it should develop in the future that the truth lies near the midpoint of these observations, we shall be very fortunate indeed.
It was the late Chief Justice Taft, I think, who said that the administration of the criminal law is a disgrace to civilization. But it was he, too, who said that--
You do not make progress by great strides. You make progress step by step (26 Encyc. Americana 213).
To me the finest quality of the bill that we have before us is its harmony with the observation of the late Mr. Justice Cardozo that--
Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true (Snyder v. Massachusetts, 291 U.S. 97, 122).
It was a privilege to have been permitted to participate with the revisers not only here at Washington, but also at Chicago and New York in the development of the text of this bill. These conferences exuded idealism and enthusiasm and yet practical restraint. The omnipresent text was Mr. Keogh's observation that “making the laws understandable is as important as making the laws.”
In other words, the dynamic objective of the committee was the antithesis of the thought back of the sentence written by Circuit Judge Batts, of the fifth circuit in Whitehead v. U.S. (245 Fed. 385, 388). He there said:
Embellished with an erudition almost innocuous because almost obsolete, and expressed with a clarity characteristic of the dialectical tergiversations of the medieval theological controversialists, some of the objections to the indictment and the argument in their support, involve processes of mental ratiocination not easily within the capacity of persons accustomed to deal with the law in its practical phases only.
The present bill, of course, attempts to make increasingly ridiculous arguments such as those which Judge Batts thus subtly condemns.
The bill is, to be sure, an attempt at law reform. But certainly no one of the 12 members of the committee, as I know them, will tolerate the thought that they are “reformers” in the invidious sense.
Workable law reform, of course, requires more than mere statutory change. It requires the convincing of hard-headed lawyers that their group psychology may safely expand to absorb the specific changes tendered to them in the bill. That means that they must have confidence in the committee's judgment, in its diligence, in its imagination and in its imaginative restraint. I have that confidence.
I have no fear that this code, as was the New York Code of Civil Procedure, will be heralded as a “Brobdingnagian conglomeration of heterogeneous rules of law and practice.”
Of course, the proposed code is not the ideal. No true ideal is ever achieved. But we have, I think, accomplished more than a mere beginning. It has been said that--
When a legislature tears the printed pattern out of the statute books and inserts another, the reform is only begun. The substitution * * * is successful only if it replaces the old one in the minds of those who use the patterns (Fowler, A. Psychological Approach to Procedural Reform (1934), 43 Yale L.J. 1254, 1270).
I think that we are well on the way to such an effective substitution.
It may be too much to expect immediate acceptance everywhere of the whole of the committee's product. The New York Penal Code and Code of Criminal Procedure, prepared by David Dudley Field and others under commission from the New York Legislature, lay neglected for a generation before they were adopted and later accepted in other States (8 Encyc. Americana 199).
Yet who will say that the Federal Rules of Civil Procedure have not proved a unifying boon to American jurisprudence? And who will say that they are not even now accepted to the full, not only in law but in spirit as well? A few years hence I am sure that the same wholehearted “acceptance” will be found of the Federal Rules of Criminal Procedure and of this as yet unborn statutory criminal code.
This bill contains its compromises, and for that it may be condemned by some. But--
by accepting compromises in things that count for least we achieve autonomy in things that count for most (T.V. Smith, the Legislative Way of Life, pp. 78-79).
And it has been soundly observed that--
When seen from the shining cliffs of perfection the legislative process of compromise appears shoddy indeed. But when seen from some concentration camp of the only alternative way of life, the compromises of legislation appear but another name for what we call civilization and even revere as Christian forbearance (id. p. 92).
The bill does not create an automatic machine which receives facts above and issues a decision below. It presupposes courts and juries. It presupposes judicial interpretation of its patterns as they arrange and rearrange themselves in the kaleidoscope of life. It presupposes principles of law, inalienable rights, and a living Constitution. It assumes that we are not committed to the “misleading cult” which teaches--
* * * that the remedy for our ills is to have the law give over, once and for all, the strivings of the centuries for a rational coherence, and sink back in utter weariness to a justice that is a flickering reflection of the impulse of the moment (Cardozo, the Judicial Process Up to Now, 55 Rep.New York State Bar Association (1932) 271).
No human product is perfect; and perhaps the bill has defects which will be duly discovered, and I trust, duly remedied.
But in the ebb and flow of the criminal law I feel that this bill represents a flood tide. I hope that the
Congress will “take it at the flood.”
I conclude with a question and an answer. The question was posed by Sir John Salmond over 20 years ago (1922) 22 Columbia Law Review, 197,208:
Through centuries of slow development we have gathered together the materials for the greatest system of law that the world has ever known. Is it too much to hope that we are now approaching the end of that long era and that we are ready to build up these materials into a stately monument of perfect form which will endure forever as one of the great contributions of this century to the cause of truth, justice, and civilization?
The answer, for me at least, is that of the late Chief Justice Stone, likewise written over 20 years ago (Four Lectures on Legal Topics, Association of the Bar of the City of New York, 207,237), but nonetheless prophetic in its insight and courage:
The time has now come, after centuries of legal experience and the development of an unprecedented legal material, when we are in a position, by employing the skill and expert knowledge of our profession, to begin the great task of bringing to our law that simplicity and symmetry of form which will enable it to endure, the source and guaranty of justice and right for uncounted generations yet to come.
H.R. 2055
Mr. Chairman, I urge the adoption of H.R. 2055.
The justice of a nation is as strong as its Judicial Code. And the code proposed by this bill is a model of terseness, simplicity, and strength. I saw the thoroughness of its revision, not only by the House committee, its counsel and its revisers, but by the advisory committee, the judges designated by the Supreme Court and the Supreme Court Justices who so willingly and so graciously contributed their time and energy to the unity and symmetry of the whole.
This code is a progressive code, a wise code, a flexible code, and a cautious code. It provides a sound statutory framework for the practical vision of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. It deals generously yet fairly with the rule-making power of the courts. It provides adequately for conferences and councils of judges in order to keep the rules of the courts abreast of the times. It deals fairly with court officers and employees and with United States attorneys and marshals. It soundly provides for the Administrative Office of the United States Courts; and for the various United States commissioners.
I am proudest of the way this proposed code deals with jurisdiction, venue, removal of causes, full faith and credit, and evidence and procedure. These are but labels to the layman. To lawyers they are the pitfalls of litigation.
Wise judges and lawyers have objectively and dispassionately explored these pitfalls and covered them with well-drawn statutes so that postwar justice may be sure-footed, courageous, impartial, and serene.
Even the law governing particular proceedings has been reworked by this bill; and it proposes good statutes to govern such matters as declaratory judgments, habeas corpus, injunction, interpleader, and three-judge courts.
I do not mean to suggest that the bill is flawless, or that the code to be enacted by it will not need further revision as the years go on. But I recognize in it a forward-looking step in the right direction; and I trust that it will be promptly enacted into law.
The legislature must see to it that wise and progressive judges are provided with the tools of justice. And the legislative foundation of judicial action must be broad-based and modernized. These objectives this bill assists in achieving. It adapts the statutory basis of justice to resist when necessary and to yield when necessary to the stresses and strains of modern affairs. It is designed to aid in keeping the ship of state afloat in stormy judicial seas.
And it heeds the admonition of Cardozo in his Nature of the Judicial Process (p. 168) when he said:
The great tides that engulf the rest of men do not turn aside in their course and pass the judges by.
Mr. Robsion. Do any other gentlemen desire to be heard?
Mr. Zinn. I do not believe so, Mr. Chairman. I do not see anyone.
Mr. Robsion. We thank you very much for coming in.
(Thereupon at 1:20 p.m., the subcommittee adjourned.)
CONGRESSIONAL RECORD; DEBATE AND
DISCUSSION
REMARKS OF REPRESENTATIVE SAM HOBBS OF
ALABAMA, on June 30, 1947, ON THE
REVISION OF TITLE 28 (H.R. 3214)
(93 Congressional Record, pp. A3483-A3485)
Mr. Hobbs. Mr. Speaker, the pending measure, H.R. 3214, is by its title declared to be, “A bill to revise, codify, and enact into law title 28 of the United States Code, entitled ‘Judicial Code and Judiciary.’ ”
I. HISTORY OF THIS PIECE OF LEGISLATION
Of course, it was introduced by the chairman of the subcommittee on Revision of the Laws of the Committee on the Judiciary. It is the product of 4 years of work under H.R. 3190 of the Seventy-eighth Congress, which became the act of June 28, 1943--Chapter 173, 57 Statutes, page 220--in and by which there was appropriated $100,000 for the complete revision and codification and enactment into law of title 18, the Criminal Code, and title 28, the Judicial Code. Of course, this bill was referred to the Committee on the Judiciary. The preliminary study was authorized and begun by the then Committee on the Revision of the Laws, with which the Committee on the Judiciary and the experts of the West Publishing Co. and the Edward Thompson Co. collaborated. Upon the enactment and approval of the Reorganization Act of 1946 the Committee on Revision of the Laws became a part of the Committee on the Judiciary, the work theretofore done in collaboration by the two committees was taken over, and is now done by the Committee on the Judiciary. The same staff of experts was continued. The work has now been completed. Title 18 has been reported by the Committee on the Judiciary and has been adopted by the House. Title 28 has also been reported by the Committee on the Judiciary, speaking through its distinguished chairman, the gentleman from Kentucky [Mr. Robsion], of its Subcommittee on Revision of the Laws, in accordance with the order of the full Committee on the Judiciary by unanimous vote, with one committee amendment to be offered by the gentleman from Kentucky [Mr. Robsion].
Twice, upon the calls of the Consent Calendar of the House, the consideration of H.R. 3214 has been passed over without prejudice at the request of members of the Ways and Means Committee.
II. THE ISSUE
This is not, in any sense, an attempt on the part of the Committee on the Judiciary to usurp any part of the jurisdiction of the Committee on Ways and Means.
Nor do we of the Judiciary Committee seek to increase our jurisdiction or take on any new duties.
Fifty-two percent of all the bills that have been introduced in the Eightieth Congress have been referred to our committee--more than we can possibly say grace over. Our prayer to Congress is: Not more, but no more!
In fact, without shrinking our duty or any part of it, we are seeking relief from as much of the disproportionate burden that has been placed upon us as may be consistent with logic and wise congressional policy.
The Committee on the Judiciary of the House is 134 years old. From its creation--as its name implied--one of its prime duties has been to study the judiciary and recommend its improvement.
The Committee on the Judiciary has never sought to intrude into the prime field of the Ways and Means Committee to study and improve tax law.
Whenever our attention has been brought to a needed reform of judicial procedure, proven by the evidence submitted, we have conceived it our jurisdiction and duty to recommend to the Congress a remedy. We have consistently sought to correct mistakes of the judiciary in interpreting congressional intent.
Here we are faced with a problem which we conceive to be clearly within our province since it involves erroneous interpretation of the law, or of procedure thereunder, although, incidentally, it also affects decisions and procedure in tax cases.
The Ways and Means Committee has unquestioned jurisdiction of the writing of tax law. It is expert in that field. We do not even claim to be. However, we respectfully submit that practically all the functioning of the judiciary relates to some subject within the jurisdiction of some other congressional committee. If the suggestion of improvement in the functioning of the judiciary is to be denied our committee merely because it would relate to some phase of the jurisdiction of some other committee, the Committee on the Judiciary might as well be abolished.
The issue here presented involves only two questions:
First. Shall the Tax Court of the United States be made a Court of Record?
Second. Shall the decisions of the Tax Court of the United States be subject to review as are the decisions of the district courts?
While this bill comprises 189 pages, some 173 chapters, or 3,000 sections, and revises and codifies the entire Judicial Code, these two questions are the only two as to which difference of opinion has arisen.
III. CHARACTER AND PROCEDURE OF THE TAX COURT
The Ways and Means Committee, as a part of the Revenue Act of 1924, created the Board of Tax Appeals. Review of the committee hearings, reports and the floor debates relating to the Revenue Acts of 1924 and 1926 will make it perfectly clear that the primary purpose the Ways and Means Committee sought to subserve was that the taxpayer could litigate his liability before having to pay, for many taxpayers were unable to pay the excess amount set up and declared due by the Commissioner of Internal Revenue and had been driven into bankruptcy as a result. The Secretary of the Treasury recommended in 1923 the creation of a Board of Tax Appeals. The taxpayers have always had the right to pay and then sue in the district court for refund of any wrongful exaction. This has been true since the 1924 Revenue Act, even though not paid under protest. If I recall correctly, either the request of the Secretary of the Treasury for the creation of the Board of Tax Appeals or the revenue bill of 1924 as passed by the House, or both, indicated that the proceedings before this Board should be “informal”, but in the conference report which became the law of 1924, this provision for informal procedure was deleted and the Board was authorized to adopt and promulgate its own rules of procedure. This was done and the procedure thereunder has prevailed until the present time, a pertinent part for the purpose of this discussion being that each taxpayer's case should be tried before one member of the Board, and only one. By reason of this provision, the
Board was enabled to try and dispose of an exceedingly large number of cases which would not have been possible had it been required that the Board as a whole, or a quorum thereof, sit in each case. Each of these one-man decisions is reviewed by one man and only one--the presiding Board member, or, since the name of the Board of Tax Appeals was changed to the Tax Court of the United States, by appropriate provisions of the Revenue Act of 1942, the presiding judge of that court. As a result of this simplified procedure the number of cases disposed of has been exceedingly large--an average of more than 5,000 cases for each of the years since its creation.
From the creation of the Board of Tax Appeals there has been no question but that it performed judicial service, but while it has been denominated as an independent agency in the executive department of our Government, its judicial characteristics have been frequently noted. For instance, President Coolidge, upon approving the Revenue Act of 1924, said:
The provisions of the bill, however, with reference to the Board, make it in all its essentials a court of record.
The report of the Committee on Ways and Means of the revenue bill of 1926, dated December 7, 1925, said:
No other court in the world tries cases which in the aggregate involve such great amounts.
And again:
The procedure is made to conform as nearly as may be to the procedure in the case of an original action in a Federal district court.
And again:
In the view of the committee the decisions of the board are judicial and not legislative or administrative determinations. Review of judicial decision may be had by direct appeal to the courts as well as by petitions to the courts for the enforcement of an administrative order, or by extraordinary remedy and suits for refunds. Further no rehearing may be provided before the reviewing court, and the review of the decision of the Board may be limited to the record made before the Board.
The report of the Finance Committee of the Senate on the same bill is in substance the same as that of the Ways and Means Committee and follows almost its exact language. Senator George, in the Senate debate, is quoted in the Congressional Record as having said:
Mr. President, if the Senator will pardon me, I may suggest that every reasonable effort has been made to bring this Board out of the class of a mere administrative body into the status of a court; and I think the rules of evidence to which the Senator refers have been amply cared for in this provision.
Just before Chief Justice Harlan F. Stone passed on to his reward, while my bill, H.R. 2181, to fix the salaries of certain United States judges was being considered, the Chief Justice called me over the telephone and in our conference which he requested and which ensued, he said in substance, “Judge, I want you to understand that I am not lobbying. I am merely calling your attention to what I think must have been an oversight of yours. In your bill increasing judicial salaries you did not include the judges of the Tax Court.” I replied, “Mr. Chief Justice, I thank you for the suggestion, but while this omission may have been an error of judgment, it was not an oversight.
The reason that the judges of the Tax Court of the United States were not included in my bill was that this court has never been a title III court. It was created as the Board of Tax Appeals and has been always regarded as an independent agency in the executive department. Its name was changed to the Tax Court of the United States only a couple of years ago and while I have high regard for its judges, I did not think that they should be included among the beneficiaries of my bill.” Chief Justice Stone replied, “For a long time we have been reviewing their decisions and I can tell you out of my experience and close scrutiny of their work that they not only perform judicial service but that they do it well. I hope that you will reconsider and amend your bill so that it will include them.” My reply was, “Of course I would not for a moment set my opinion up against yours. I understand that such an amendment will be offered. I have no zeal for the position I have felt impelled to take, nor would I feel it my duty to fight such an amendment except to state my position and the reasons for it, but I cannot agree to offer such an amendment nor consent to its adoption.”
By bills written by the Ways and Means Committee which have now become law, the name of this agency in the executive branch of the Government has been changed from Board of Tax Appeals to the Tax Court of the United States. The length of tenure of the judges thereon has been fixed at terms of 12 years and an amendment adopted in the Senate to the judicial salaries increase act fixed their salaries at the same fixed by the same act for judges of the United States district courts.
The manifest intent of the Ways and Means Committee in proposing the creation of the Board of Tax Appeals was to expedite the administration of justice in tax cases. The same procedure for judicial review of its decisions by the courts of appeals and the Supreme Court was provided as for the review of decisions of the district courts. After the Board of Tax Appeals had performed most efficiently for some 18 years the great service it was created to render, its name was changed to the Tax Court of the United States. It continued to render the same service. The provisions for review of its decisions remained the same as had applied to the Board of Tax Appeals and to the district courts. The Ways and Means Committee from time to time wrote new tax laws, and no one has ever questioned their exclusive jurisdiction so to do.
IV. CONFUSION
The Supreme Court has rendered several upsetting decisions--Dobson v. Commissioner, in 1943 (320 U.S. 489), the Bingham case (325 U.S. 365), in which Chief Justice Stone sought, apparently, to cure the Dobson decision, but then the Kelly case (326 U.S. 521), which, while not expressly overruling the Bingham decision, wiped out its curative effectiveness, and left the Dobson doctrine again supreme. Then in 1947 the Sixth Circuit Court of Appeals handed down Lincoln Electric Co., 1947 Commerce Clearing House General Tax Service, paragraph 9282, June 11, 1947, holding that the Tax Court was an administrative agency in the executive branch of the Government and that its decisions were administrative, not judicial deliverances.
In 1946, the Administrative Procedure Act became law. Section 8 thereof provides that review of the decisions of administrative agencies when the initial decision was made by one man should be reviewed first in the agency by a majority of its top-ranking administrators. This act was never intended to affect decisions of the Tax Court.
Three untoward results have ensued. First. Rich taxpayers who can afford to pay their tax assessments may do so and file suit in the district courts for what they conceive to be excessive exactions and the decisions of the district courts may be reviewed both as to questions of law and fact by the courts of appeals, and, if certiorari be granted, may also be reviewed as to questions of law and fact by the Supreme Court, whereas the poor taxpayers who cannot afford to pay their tax assessments have no such recourse. Second. The poor taxpayer must apply to the Tax Court for review of his assessment and the expeditious one-man decision, reviewed only by the presiding judge of the Tax Court, is abolished and it must be heard by at least a majority of the 16 judges of the Tax Court. Under the former procedure, wherever a tax case may have originated, the court sent one of its judges there to try the case. So the 16 judges may be scattered widely over the Nation. The poor man's initial review then must be postponed until 9 of the 16 judges are free to be assembled in Washington to try his case on this initial review. Unless this is changed, this one fact alone makes it impossible for the Tax Court to function expeditiously enough to dispose of its average case load of more than 5,000 cases a year. Congress must, therefore, increase greatly the number of judges unless the court is to fall behind tragically in its disposition of cases, or else restore one-judge decisions and uniform review. Third. Even after the poor man has obtained initial review by at least nine members of the Tax Court, the decision in the Dobson case denies him the right which the length of his purse grants to the rich man. Judicial review of a judicial decision--as of a district court--differs from judicial review of an administrative decision in that such review of a judicial decision is considered on the merits of the case whereas such review of an administrative decision assigns to a decision of the Tax Court a special finality as to certain types of tax questions. Unless the Dobson decision is corrected both the Government and private litigants are denied a fair judicial review. Prior to the Dobson decision it was assumed by all the courts, including the Supreme Court, that on appeal from the Tax Court all questions of law were fully reviewable, and that questions of fact were subject, in general, to the same degree of limited review that prevails in appeals from district courts.
In the Dobson opinion, however, for the first time the Supreme Court thought that it found the congressional intention that the jurisdiction of certain courts of appeals to review decisions of the Tax Court should be narrower than their jurisdiction to review decisions of district courts. Under the rule which the Supreme Court there set forth, no question of law decided by the Tax Court is reviewable by the circuit courts of appeals except those questions of law which the Supreme Court termed “clear cut.” The effect of such a holding is that as to questions of law considered to fall short of being clear cut, the Tax Court is held to have a final power of construction, subject to no judicial review. This gives to a body inferior to the appellate courts an unreviewable power of construing tax laws even greater than the regulation-making power given to the Treasury Department, inasmuch as the validity of a Treasury regulation is subject to review by the appellate courts. Considerable confusion has resulted in attempting to construe the Dobson decision, because it is hard to distinguish clear cut questions of law from other questions of law which involve congressional intent in the taxing statute. This confusion has been all the more evident because of an intimation in the Dobson opinion that if the problem of construction before the courts is a problem of accounting, in the sense that the Tax Court is charged with determining what the intent of Congress was with reference to an accounting question, the conclusion of the Tax Court as to such a question
seems, under that decision, not reviewable. These confusions amply justify the Committee on the Judiciary in proposing the committee amendment, but even if there were no such confusion, the effects of the Dobson decision
would be undesirable and should be eliminated.
The pending bill would simply make the Tax Court of the United States a court of record; and by the committee amendment, its decisions would be subject to judicial review on the merits of each case, exactly as is now the law with respect of the judicial review given decisions of every district court of the United States.
We respectfully submit that these are matters clearly within the jurisdiction of the Committee on the Judiciary and our actions seek no possible intrusion upon the jurisdiction of the Committee on Ways and Means. We have the highest respect and regard for the Ways and Means Committee, its jurisdiction, and each of its members, but the Committee on the Judiciary would have been recreant to its trust if it had not done its duty to present to the House this revision of Title 28 of the code including the necessary corrections recommended. This bill should be passed not only because of the importance and need of the code, but also of its vitally necessary improvement.
HOUSE FLOOR DISCUSSION AND ACTION, ON
JULY 7, 1947, ON THE REVISION OF
TITLE 28 (H.R. 3214)
(93 Congressional Record 8550-8559)
Mr. Robsion. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 3214) to revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary,” as amended.
The Clerk read the bill with the following amendments:
Page 87, strike out the period at the end of section 1294 and insert in lieu thereof a comma, and the following: “In the same manner and to the same extent as decisions of the district courts in cases tried without a jury.”
Page 157, line 14, after “court”, insert “No qualified person shall be denied admission before such court because of his failure to be a member of any profession or calling.”
Mr. Michener (interrupting the reading of the bill). Mr. Speaker, I ask unanimous consent that the further reading of the bill be dispensed with.
The Speaker. Is there objection to the request of the gentleman from Michigan?
There was no objection.
The Speaker. Is a second demanded?
Mr. Dingell. Mr. Speaker, I demand a second.
The Speaker. Without objection, a second will considered as ordered.
There was no objection.
The Speaker. The gentleman from Kentucky [Mr. Robsion] is recognized for 20 minutes.
Mr. Robsion. Mr. Speaker, I yield myself 7 minutes.
Mr. Speaker, this bill, which proposes to codify and revise title 28 of the United States Code, the Judicial Code, is a very, very important measure. Work on it was begun in 1943 by the former House Committee on Revision of the Laws under the able chairmanship of the gentleman from New York [Mr. Keogh] as part of an extensive program to codify and revise the existing titles of the United States Code. It was planned to take up first the more important titles and those urgently needing codification and title 28 was one of them--perhaps the most important--inasmuch as there has been no comprehensive revision of it since 1911. When enacted it will give the Congress and the bench and bar of the Nation a modern, workable Judicial Code for the first time in over 35 years. The urgent need for such a code and the desirability of favorable action on this particular bill are recognized by judges and lawyers everywhere.
This bill is not the product of my own mind nor of the individual members of the Committee on Revision of the Laws on the Subcommittee of the Committee on the Judiciary, of which I am chairman, or of the full Committee on the Judiciary. While all of these have taken a very earnest and active part in bringing to you the best bill possible, it is, as a matter of fact, the product of the minds of some of the ablest lawyers of the country, of distinguished State jurists, of United States district and circuit court judges, and of the late Chief Justice of the United States himself, together with some of his associate justices.
Under the Legislative Reorganization Act of 1946, matters within the jurisdiction of the Committee on Revision of the Laws were transferred to the Committee on the Judiciary. A number of bills to enact some of the titles of the United States Code into positive law were completed and approved by the Committee on Revision of the Laws and passed the House some two or three times. At the last session, before the transfer of the functions of that committee, the Judiciary Committee considered the codification and revision of the United States Code of so great importance that it agreed to cooperate with that committee and reviewed in detail the bill to revise title 18, the Criminal Code, which passed the House at the last session and again at this session, and the bill which preceded this one covering title 28.
The Committee on Revision of the Laws and the Judiciary Committee retained the services of the West Publishing Co. and the Edward Thompson Co., long engaged in the business of publishing law books and aiding in the codification and revision of State and Federal statutes. They maintain, of course, a staff of able editors. They desired that this work be made as nearly perfect as possible and added to their staff one of the ablest codifiers and revisers in the Nation, who had many years of experience in the Department of Justice and in codifying and revising statutes. An advisory committee composed of able and distinguished Federal judges and lawyers was created, and they took an active interest and held many conferences in perfecting this bill.
In addition to this, the Committee on Revision of the Laws had the aid of the counsel of that committee and also the counsel for the Judiciary Committee, Mr. Zinn and Mr. Long. The late Chief Justice Stone and two of his Associate Justices, together with a committee of judges appointed by the Judicial Conference, and a representative of the Attorney General sat in at the conferences and offered suggestions and criticisms of the several preliminary drafts of the bill. At these conferences the drafts were reviewed in detail, section by section, and most helpful discussions took place. Copies of the drafts were furnished to every Federal judge, to every United States attorney and marshal, to every bar association in the country, to the administrative offices of the courts, and many other Federal officials connected with the courts and the administration of justice. Lawyers who are active in the affairs of the American Bar Association took a lively interest in the preparation of this bill. Therefore, I emphasize again that this bill is not the product of my mind nor the minds alone, through the years, of the Committee on Revision of the Laws or the Committee on the Judiciary, made up of 27 lawyers.
The Committee on Revision of the Laws and the subcommittee of the Judiciary Committee read the bill, section by section and chapter by chapter, at a time when able codifiers and revisers and counsel for the committees were present. Hearings were held at which the committee received the judgment of qualified persons who are interested in seeing that the bench and bar receive a modern Judicial Code.
After all these investigations and hearings the subcommittee of which I am chairman made a unanimous and favorable report. The bill was then considered at great length by the full Committee on the Judiciary and reported favorably to the House by a unanimous vote with the two amendments that are proposed here today, and those amendments received unanimous support of the committee. It can be said truthfully that this bill is not a partisan bill in any respect. Democrats and Republicans alike have worked earnestly and sincerely in harmonious efforts to bring to the House the very best codification and revision possible. I have served in the Congress a number of years, and I know of no bill that has had more sincere and careful consideration than has this bill and the other revision bills that have been submitted to the House at this session. On May 12 titles 1, 4, 6, 9, 17, and 18 of the United States Code were passed by unanimous consent, and those bills, too, were carefully considered over a period of years. The bill on crimes and criminal procedure contained nearly 500 printed pages. This bill represents a great deal of hard work. It will mean little politically to anyone who gave it his time and thought. However, it is a much-needed work and will be greatly appreciated both by the bench and bar, by officials, and people generally who have recourse to the Federal laws of our country. It will serve not only as the body of the laws that are now in existence, but also as a framework for future laws. The law on any particular subject can
then be quickly and easily found by the average intelligent citizen and in the event that amendments or changes are desirable, it will be most helpful in that respect.
ALMOST UNANIMOUS
Mr. Speaker, there has been absolutely no opposition whatever to this codification as a whole. Its urgency is too well recognized for that. No student of the law could seriously object to a program of this nature as set forth in this bill. On the contrary, everyone who has expressed himself on the subject has voiced his approval of the project as a whole.
The executive branch of the Government has expressed its approval through the Secretary of the Treasury, Mr. Snyder, and through the Attorney General, Mr. Clark. The judicial branch has expressed its approval most emphatically through the late Chief Justice Stone, other associate justices, the Judicial Conference Committee, many other Federal judges of the United States circuit courts of appeal and district courts, Mr. Chandler, administrative officer of all the United States courts, and a number of distinguished State jurists.
I have pointed out in some detail the general unanimity in which this measure has been approved by the legislative branch that has had it under consideration, but there are some objectors on the Ways and Means Committee to just one small feature of this bill.
Mr. Woodruff. Mr. Speaker, will the gentleman yield? Will the gentleman please tell the House what that is?
Mr. Robsion. I am coming to that point.
The bill covers the whole judicial system of the United States, the personnel and procedure, together with district attorneys and marshals, but on one small point we find some objection by individual members of the Committee on Ways and Means who do not want the provisions relating to one of the courts--the Tax Court--included in this code. Those provisions are now in the Internal Revenue Code only because that court, as originally established in 1924, was called the Board of Tax Appeals, and in 1939, when the first Internal Revenue Code was adopted, those provisions were included by the drafters of that code and they want the provisions kept there.
It is most significant, Mr. Speaker, that the two executive departments concerned with this matter have no objection to those provisions in H.R. 3214. As a matter of fact, the Attorney General has specifically and in so many words approved these provisions. In his letter of April 17, 1947, to the chairman of the Committee on the Judiciary, the Attorney General said this:
You are therefore advised that the Department of Justice has no objection to the incorporation in the bill of appropriate language declaring the Tax Court of the United States to be a court of record.
Now that is the crux of the objections raised by some Members and it seems to me that this specific approval by the Attorney General to these provisions which were incorporated in the bill after the careful study I outlined to you earlier is an adequate answer to such objection.
Moreover, the Treasury Department, which is vitally concerned with this court, had only one recommendation on this point--and we have taken care of that in the bill--and that was that provision be made for them to continue representing the Commissioner of Internal Revenue before the Tax Court. Normally, the Government is represented before our courts by the Attorney General but in the Tax Court such representation has always been by the Treasury Department and we understand that the Attorney General has no objection to our provision in section 2560 of the bill that the Government be represented by counsel designated by the general counsel of the Treasury Department. So there we have the only executive departments concerned giving their approval to including the Tax Court provisions in this code.
No one has advanced a single sound reason why these provisions should not be in this code. The argument that the court was originally created by legislation reported out of the Committee on Ways and Means and that that committee should retain control of the court does not sound convincing to me.
Mr. Dingell. Mr. Speaker, will the gentleman yield?
Mr. Robsion. I yield.
Mr. Dingell. The gentleman says it is purely judicial. That is not what the court said.
Mr. Robsion. Well, the gentleman has 20 minutes. I am going to tell the House what your committee said in its report in 1926. What did they say?
THE TAX COURT IS A COURT IN NAME AND FACT
Everybody agrees that the functions of the Tax Court are purely judicial. Its functions are not executive or administrative. That view is concurred in by the Committee on Ways and Means which stated at page 20 of its report on the revenue bill of 1926:
In the view of the committee the decisions of the Board are judicial and not legislative or administrative determinations. Review of judicial decisions may be had by direct appeal to the courts as well as by petitions to the courts for the enforcement of an administrative order or by extraordinary remedy and suits for refund. Further, no rehearing need be provided before the reviewing court and the review of the decision of the Board may be limited to the record made before the Board. The imposition upon the court of the duty of reviewing judicial decisions such as those of the Board is not the imposition of a nonjudicial duty.
On page 18 of the same report the Committee on Ways and Means stated: “No other court in the world tries cases which in the aggregate involve such great amounts.” That is the expressed view of the Committee on Ways and Means, several of whose members now object to including that court in the Judicial Code along with all the other Federal courts.
The Tax Court hears and decides about 5,000 cases a year. As required by law it follows the usual court procedure in taking evidence and issues are formed and determinations made in judicial fashion.
Mr. Gearhart. Mr. Speaker, will the gentleman yield?
Mr. Robsion. I yield.
Mr. Gearhart. Whether or not the Tax Board or the Tax Court has been a judicial or an administrative body, if this bill is passed it will become a judicial body? That is correct, is it not?
Mr. Robsion. It will become a judicial body, recognized by the court as such. It has been a judicial body in name and in fact and in action.
Mr. Gearhart. If that is true, will the gentleman advise me under what authority of the Constitution we can by law set up a judgeship with a fixed term, in view of section 1 of article III of the Constitution which says plainly that the judges both of inferior courts and the Supreme Court shall hold their office during good behavior?
Mr. Robsion. If the gentleman will read the opinion in the Bakelite case he will find that that whole question is carefully reviewed and then they base their opinion on the first great pronouncement by John Marshall when he was Chief Justice, in which he said that this type of court is not a constitutional court and that Congress is free to make such legislative courts.
Mr. Rich. Mr. Speaker, will the gentleman yield?
Mr. Robsion. No; I cannot yield. My friends on the Ways and Means Committee have 20 minutes.
Mr. Rich. But we would like to get some questions answered that we have in our minds.
Mr. Robsion. I am going to cover that very question. Perhaps if I do not cover it, then I will answer the gentleman's question.
Boiled down, what is the issue between the proponents of this bill and those Members who are opposing this portion of it? They claim the Tax Court is an administrative agency in the executive branch of the Government. We say that that is not true, but, if it is true, the language of the law should be amended so as to clarify this situation.
A decision of the Supreme Court, Dobson against United States Commissioner of Internal Revenue, and a very recent case, Lincoln Electric Corp. against United States Commissioner of Internal Revenue, decided in the United States Court of Appeals for the Sixth Circuit, have brought about some confusion. In 1924 the Congress created a Board of Tax Appeals, made up of seven members, and while that act gave to this Board judicial functions to perform it also provided that it was an independent agency in the executive branch of the Government. The Supreme Court has been criticized considerably for holding that this was an independent agency in the executive branch of the Government in view of the fact that the functions of this Board or court are purely judicial and not executive. This act creating it was amended in 1926 and made this so-called Board to consist of 16 members. President Coolidge and others indicated that this was a court and not an executive agency. At the time of the signing of the bill President Coolidge issued a formal statement. Referring to the hardships of taxpayers resulting from delay in the ultimate and final determination of their liability, the President's statement contained the following:
Provision should be made for the prompt and final determination of a taxpayer's liability, and such was the purpose in the suggestion for a Board of Tax Appeals.
The provisions of the bill, however, with reference to the Board, make it in all its essentials practically a court of record.
The Board is to be bound by formal rules of evidence and procedure. In each case a formal record must be prepared and all oral testimony in cases involving more than $10,000 must be reduced to writing and an opinion in addition to the findings of fact and a decision must be written. A taxpayer is entitled to appeal to the Board before any assessment can be made. The reduction in the salary of the members of the Board from $10,000, as recommended by the Treasury, to $7,500, and the reduction of the term of office of the original appointees from the 10 years recommended to 2 years, make it difficult to secure for membership on the Board men with training, experience, and ability. This Board of Tax Appeals, unable to secure the proper type of men for membership hampered and burdened with rules of procedure and evidence and forced to prepare a record, a finding of fact, and a decision in practically every case, will be unable to handle the business which will come to it.
The result will be greater delay in the final settlement of tax cases, and may ultimately result in the complete break-down of the administrative machinery for the collection of taxes.
The legislative history accordingly shows that the Board of Tax Appeals was made a judicial tribunal, with formal procedure, because Congress, rather than the Treasury and the President, wished it to be that way. That the Treasury completely changed its views as to the desirability of a formal judicial tribunal such as had been created by the Revenue Act of 1924, is shown by the statement of Mr. A.W. Gregg, Solicitor of Internal Revenue, made to the Ways and Means Committee in 1925, and as reported at page 932, Hearings, Revenue Revision, 1925. After pointing out that the Treasury had asked for a board with informal procedure to settle tax cases, whereas Congress had created a court, Mr. Gregg said:
I think I am in a position where I can praise the work of the Board--having been, at least theoretically, representing one side of every case before it--better than almost anyone else. They have handled the work before them in such a way that they have received the sincere admiration of attorneys and taxpayers who have seen the work of the Board and its opinions, as well as of the Treasury Department. I think that what they have done deserves the appreciation of Congress. They have really done a wonderful piece of work in getting started, producing, and establishing the precedents that they have. It seems to me that in order to be able to carry out what they have begun so well, they should be made a court in name as well as in fact, and that provision should be made which will enable the Board to procure the services of competent men.
The Speaker. The time of the gentleman from Kentucky has expired.
Mr. Robsion. Mr. Speaker, I yield myself five additional minutes.
In order to be able to carry out what they had begun so well it should be made a court in name as well as in fact.
Mr. Rich. Mr. Speaker, will the gentleman yield?
Mr. Robsion. I think I will cover the gentleman's question if he will just let me proceed.
The 1926 act, however, contained the language that it was an agency in the executive branch of the Government. In 1942, the Ways and Means Committee reported out a bill, the Revenue Act of 1942, in section 504a of which they provided that this so-called Board be known as “The Tax Court of the United States, and members thereof shall be known as the presiding judge and the judges of the Tax Court of the United States,” and from that time on, it has been known as the Tax Court of the United States and its 16 members are designated as judges with a chief judge that is elected by the judges every 2 years, and, of course, their duties have been purely judicial and not executive.
Mr. Rich. Mr. Speaker, will the gentleman yield?
Mr. Robsion. Permit me to complete my statement, please.
Mr. Rich. But we are not going to get an answer to the question we want to ask and that is, whether you are going to prohibit tax accountants and men qualified to appear before this court from appearing.
Mr. Robsion. I said I would cover that point; just give me a little time. We have one amendment from the Judiciary Committee which will take care of that completely.
Mr. Rich. That amendment will be offered, will it?
Mr. Robsion. Yes; it will be part of the bill when the bill is voted on. As a matter of fact, there are two amendments to the bill. One of them covers the subject the gentleman refers to. That amendment is not needed because it is the law already, section 504(b) of the Revenue Act of 1942. If we did not put it in this bill it would still be in the law.
That act of 1942 declared that the Tax Court of the United States should be made up of 16 judges to be appointed by the President by and with the advice and consent of the Senate, and they were to be known as the Tax Court of the United States. These judges were to serve 12 years and the salary was fixed at $10,000 a year. Their salaries were increased by the recent Federal Judicial Salary Act of 1946, along with the salaries of judges in the other Federal courts. They could only be removed for inefficiency, neglect of duty, or malfeasance in office. That act also set out the way and manner in which this court would conduct its business. The judges were required to visit parts of the United States to hear cases. The trial judge would write his opinion, and of course the determination would then be reviewed by the chief judge and could be reviewed by the whole court. That was the sort of measure that was brought in and urged to be passed by the Ways and Means Committee itself and when all, or almost all, of those now objecting, were on the Ways and Means Committee. Now, they insist that it should be merely an administrative agency in the executive branch of the Government. Its functions are purely judicial, its acts are purely judicial, and it should be in fact and in name a court of record designated in section 271 of H.R. 3214.
This court, when it started operating, found an accumulation of more than 30,000 tax cases, involving hundreds of millions of dollars. They have shown great ability and industry and they cut down that docket to almost a minimum. There are filed with this court approximately 5,000 cases a year and under their procedure, they can handle approximately that number of cases a year.
Perhaps it would be desirable to pause for a moment to define our terms at this point: Black's Law Dictionary defines “court” as an organ of the Government belonging to the judicial department, whose function is the application of the laws to controversies brought before it, and the public administration of justice. It defines “judge” as an officer so named in his commission who presides in some court; a public officer appointed to preside and who administers the laws of a court of justice. We must believe that the Revenue Act of 1942 used these terms in this sense--which, of course, is the only possible one.
Before reporting out the bill under consideration here today, the Committee on the Judiciary held hearings at which the former Associate Justice of the Court of Appeals for the District of Columbia, Justin Miller, testified in part as follows:
Moving from the general to the particular, I would like to recommend one change in the structure of the law to be embodied in H.R. 2055, namely, the transfer of the provisions relating to the Tax Court of the United States from the Internal Revenue Code to the Judicial Code. As a former member of the Tax Court, familiar with the jurisdiction and scope of its work, I heartily recommend this transfer. The Tax Court now exercises all the functions of a court; it operates in a truly judicial manner; and it is fitting that the provisions relating to it should be found in the Judicial Code along with the provisions relating to the other courts.
It seems to me that there can be no question but that the provisions relating to the Tax Court properly belong in the Judicial Code because it is clear that the Court is strictly judicial in nature. Let us consider for a moment, Mr. Speaker, that would be the result of leaving them out of the Judicial Code in view of the provisions of the Administrative Procedure Act. If that body is not a court but a purely administrative agency it would come within the purview of the Administrative Procedure Act. Of course, in the view of the Attorney General, expressed to the Senate Committee on the Judiciary in connection with the proposed Administrative Procedure Act, the term “court” includes the Tax Court and similar courts and the act does not apply to their procedure nor affect their requirements nor resort thereto. See Senate Report No. 752, Seventy-ninth Congress, page 38.
However, because the provisions relating to the Tax Court are not now in the Judicial Code considerable confusion has arisen regarding its status and the status of litigants.
CONFUSION, DELAY, INCREASED EXPENSE
The decisions in the Dobson and the Lincoln Electric Co. cases have created a great deal of confusion which will greatly delay this court in the handling of these thousands of cases annually and greatly increase the cost of this service to the detriment of both the taxpayer and the Government. If this is a court in truth and in fact, and as provided for in this measure, appeals can be taken from this court to the United States Circuit Court of Appeals and to the United States Supreme Court, just as appeals are taken from the United States district courts in cases tried without a jury. With these decisions standing and this court considered as merely an administrative agency in the executive branch of the Government, the right of appeal will be greatly restricted, both to the taxpayer and to the Government. One class of our citizens will receive one type of treatment in their cases in the United States district courts and those whose cases are heard by this Tax Court will receive a different type of treatment. If these decisions hold, and with no amendment to the law, the only relief that the taxpayer or the Government can secure is a review to the Circuit Court of Appeals and the United States Supreme Court where the reviewing court can see beyond a reasonable doubt that the decision of the Tax Court was clearly wrong on purely a question of law. Thus, there is no real right of review, although Congress clearly intended that all errors of law of the Tax Court shall be subject to correction on appeal. This is not the treatment accorded to taxpayers or the Government in cases tried in the district court without the intervention of a jury.
It can be seen at once that litigants in regard to other matters have their appeal and can secure relief that litigants in the Tax Court cannot receive under the Dobson and the Lincoln Electric Co. decisions.
I wish to point out some other serious objections to the present law on this subject. Here we have 16 judges designated as a court. Their tenure of office is 12 years. They receive a salary of $15,000 a year, and they try cases involving millions of dollars, yet it is not a court at all if these decisions obtain. They are set out under the law to try cases. They can issue subpenas and have witnesses summoned but, strange to say, they cannot compel the witnesses to come to the court and testify.
If the Tax Court is required to conform to the Administrative Procedure Act, it is believed that its work would be increased many times and that the court would be unable to function as it now functions. Section 8 of the Administrative Procedure Act provides that where a hearing is had before a member of an agency, either of the parties may, as a matter of right, have an appearance before the agency as a whole. The effect of giving each litigant in the Tax Court the right to have the decision of the judge reviewed by the entire body of 16 judges would be disastrous to the docket of the court. It has been estimated that within 4 years the court would have between 15,000 and 20,000 cases pending.
What does this bill do? It settles forever one question. It makes it a court of record. The Ways and Means Committee said it was a court. It provides as such court the taxpayers can appeal from its decision to the United States circuit court of appeals and to the Supreme Court under the same terms and conditions as an appeal from a United States district court.
These Tax Court judges can go all over the country and try cases, big cases involving millions and millions of dollars. They can issue subpenas, all right, but if the witnesses do not want to come, they cannot compel them to come in.
The Speaker. The time of the gentleman from Kentucky has again expired.
Mr. Robsion. Mr. Speaker, I yield myself one additional minute.
Mr. Speaker, the Tax Court cannot compel the witnesses to come in. After they had tried one big case in Pennsylvania and had gotten down to the point almost of finishing and they needed a witness with books and records. For the judge could subpena that witness to bring in the books and records, but when he did that the witness refused to produce the records. Then they had to go to the United States district court and get an order to compel that witness to come in with his books. The district judge there had to hear it for months before he could determine whether or not that witness ought to come in with the books. It delayed that big tax case for about a year.
Yes, Mr. Speaker, this is a court in name, there can be no question about that, and we will do the worst disservice we can to this great court and the tax cases if we do not pass this bill. It has the approval of the Department of Justice, Chief Justice Stone and his associates on the United States Supreme Court, and other Federal and State judges all over the country.
Mr. Springer. Mr. Speaker, will the gentleman yield?
Mr. Robsion. I yield to the gentleman from Indiana.
Mr. Springer. As a matter of fact, it makes the court a court of record, does it not?
Mr. Robsion. It makes it a court of record.
Mr. Doughton. What about the buildings for this court? Will they not want separate buildings?
Mr. Robsion. They will hold court where they now are. This court can and will carry on its business as it has done and is doing.
Mr. Doughton. But they will want separate buildings. Next thing is they will be wanting a separate building.
Mr. Robsion. Oh, no.
Mr. Doughton. Why, they would not be a court if they did not want their own buildings.
Mr. Robsion. Mr. Speaker, I urge the Members to act favorably on the bill, H.R. 3214, so that our program of codifying the entire body of the Federal statutory law may proceed, and particularly so that the bench and bar of the Nation may have, for the first time in over 35 years, a modern, systematic Judicial Code which has been prepared with the most unusual care and skill and which has the approval of all persons interested in these laws.
The Speaker. The time of the gentleman from Kentucky has again expired.
Mr. Dingell. Mr. Speaker, what I have to relate is a story of deceit and misunderstanding--deceit on the part of certain members of the Tax Court of the United States; and misunderstanding on the part of the Committee on the Judiciary of the origin, purpose, and history of the former Board of Tax Appeals. I have read very carefully the extension of remarks of the gentleman from Alabama, Judge Hobbs, on page A-3483 in the Appendix of the Congressional Record for July 2, 1947. The gentleman, apparently speaking for the Judiciary Committee, advocates the adoption of title 28, United States Code, as now revised and contained in H.R. 3214. Chapter 13 of the proposed title 28 deals with the Tax Court of the United States, known prior to 1942 as the Board of Tax Appeals.
The argument in support of chapter 13, which would change materially the present status of the Tax Court, discloses a misapprehension regarding the nature of this agency. The Committee on Ways and Means has long exercised sole jurisdiction over the administration of the Federal tax system. The Revenue Act of 1924 provided for the creation of the Board of Tax Appeals, not a tax court, in order to eliminate certain specific criticisms of taxpayers about the handling of tax disputes by the Commissioner of Internal Revenue.
Prior to that time, a taxpayer could, prior to payment of his tax, appeal to a special Committee on Appeals and Review within the Bureau of Internal Revenue. But the Committee on Ways and Means thought that the taxpayer should be able to obtain an impartial and disinterested determination of the issues involved by an agency which would not be both judge and advocate. For this purpose, the Board of Tax Appeals was created.
Since that date, the Board of Tax Appeals has been continued as an independent agency in the executive branch of the Government. The Board is composed of 16 members appointed by the President with the advice and consent of the Senate. Pursuant to statutory authority, the 16 members may individually sit and hear tax cases at any place within the United States. In this way the Board has been able to handle the evergrowing volume of tax disputes, and at the same time to provide taxpayers with convenient access for settlement of their disagreements with the Commissioner of Internal Revenue. Not only attorneys and accountants have been permitted to represent taxpayers, but other qualified persons, have been admitted to practice before the Board of Tax Appeals.
Some idea of the popularity of this system of handling tax disputes is indicated by the statistics of cases taken to the Tax Court for fiscal years 1943-46. The total of taxpayers' petitions amounted to 1,741 on the average, and involved an average of approximately 2,500 tax returns each year. The Tax Court, largely because of its informal procedures and its ability to move about unhampered by judicial restraint, has decided an average of well over 700 cases annually since 1943. During the same period the average number of tax cases decided by all of the United States district courts totaled 184 annually.
Now, I have gone into the history of the origin and years of successful operation of the Tax Court so that the Members of the House may know how successful has been this creature of the Committee on Ways and Means. We are proud of the fact that taxpayers prefer to have their disputes settled in this body rather than in the United States district courts. We want the Members of the House to know that the Committee on Ways and Means maintains the same supervision over the Tax Court and its operations as we do over the Bureau of Internal Revenue and the Treasury Department. Consequently, we trust that we may be pardoned for raising our objections when the Committee on the Judiciary, in its otherwise commendable purpose to revise the Judicial Code, seeks to transfer this independent agency which we created in the executive branch of the Government to the judiciary.
The members of the Committee on Ways and Means suspect that the entire issue arises from a section inserted in the Revenue Act of 1942. Section 504 of that act changed the name of the agency in question from Board of Tax Appeals to the Tax Court of the United States. Now, at the time, many of the members of the Committee on Ways and Means had misgivings about this change in name. But we were told by members of the Board of Tax Appeals that it would enable them more readily to obtain space in Federal courthouses in which to hold their hearings. Moreover, we were told, there was sometimes embarrassment because counsel in addressing a member of the Board often did not know what title should be used.
So, to help the Board of Tax Appeals with their housekeeping and to prevent them from being called “Member,” “Budge,” or some equally undignified term, it was agreed only to change the name of the Board to Tax Court of the United States, and to provide that the members should be known as judges.
Now, the members of the Committee on Ways and Means still were a bit skeptical about the good faith of the members of the Board of Tax Appeals. We feared that they might be entertaining dreams of grandeur and hopes of cloaking themselves in the robes, tenure, and independence of the judiciary. However, one of our members, Hon. Wesley Disney, whose brother was a member of the Board of Tax Appeals, assured me that this was not a case of the camel getting his nose under the tent. I reported this assurance to the committee, and upon that basis and notwithstanding the objections of the Treasury Department, the committee decided to grant the request for change in name. But the committee insisted, despite the assurance of good faith by Mr. Disney on behalf of the members of the Board of Tax Appeals, that the statute should spell beyond possibility of doubt our intention that there was to be no change in jurisdiction, powers, and tenure of the Tax Court. Section 504(b) of the Revenue Act of 1942, reads as follows:
(b) Powers, tenure, etc., unchanged: The jurisdiction, powers, and duties of the Tax Court of the United States, its divisions and its officers and employees, and their appointment, including the designation of its officers, and the immunities, tenure of office, powers, duties, rights, and privileges of the presiding judge and judges of the Tax Court of the United States shall be the same as by existing law provided in the case of the Board of Tax Appeals. The Commissioner shall continue to be represented by the same counsel in the same manner before the court as he has heretofore been represented in proceedings before the Board of Tax Appeals and the taxpayer shall continue to be represented in accordance with rules of practice prescribed by the court. No qualified person shall be denied admission to practice before such court because of his failure to be a member of any profession or calling.
And so that ordinary laymen could understand this language, I took the floor of the House and restated the intention of the committee and to remove any doubt or ambiguity. I incorporate in my remarks what I said then on July 17, 1942, at pages 6335-6336 of the Congressional Record:
Mr. Dingell, Mr. Chairman, I want to treat briefly the question involving the change affecting the United States Board of Tax Appeals, and to say it is fully understood and agreed by the Committee on Ways and Means that the authorized change of name identifying the body heretofore known as the Board of Tax Appeals and hereafter to be known as the Court of Tax Appeals does not in any sense or in any way alter or change the rights and privileges of those who now practice before that body; more specifically, qualified laymen are not to be excluded from practice before the court or barred from service as member of the court.
It is intended that membership of the court, or practice before it, be not restricted to lawyers, barristers, or those who have been duly admitted to practice law, but shall extend to and include competent qualified laymen.
It is my understanding that at present laymen and lawyers enjoy the Board of Tax Appeals, and that laymen as well as lawyers may without handicap or prejudice not only practice before the Board but may be privileged to serve as members of the Board. The change in the name or title from “Board” to “court”, or whatever the change in name might be, does not alter the status or function of either, and permits the President of the United States, as heretofore, to choose for appointment as members of the court either laymen or lawyers.
It is intended that my remarks shall indicate the attitude and intent of Congress and to circumvent any technical or erroneous interpretation on the part of the courts, as a rule composed of and inclined to exclude from practice and service all but lawyers. A narrow or strained translation, in view of our action here today, should be impossible.
The equality before the court, and on the court, of accountants--not necessarily certified public accountants--and of other laymen and lawyers is here and now, by the action of the committee, definitely established, so to remain until specifically changed by the Congress.
The rights of present or former Members of Congress, heretofore enjoyed, are neither abridged nor enlarged upon, and their right to serve upon the court is unchallenged and protected.
Mr. Speaker, the present efforts of members of the Tax Court to have this agency transferred to the Judiciary Branch of the Government amounts to a deliberately underhanded and contemptible action by certain members of the Tax Court. If chapter 13 is allowed to remain in the proposed Judicial Code, it would be better to abolish the Tax Court and turn the settlement of tax disputes back to the Commissioner of Internal Revenue and his informal Committee on Appeals and Review. The Tax Court, if H.R. 3214 should pass in its present form, would be beyond the supervision of the Committee on Ways and Means. The judges--whose ambition to don the judicial toga seems to know no bounds and to tolerate no bond or promise--will then proceed to prescribe rules prohibiting the appearance as tax counsel persons who are not lawyers. Instead of the flexible procedures and hearings now prevailing, the Tax Court will assume all of the technicalities of practice and procedure so familiar among the members of the legal profession.
Mr. Speaker, these are more than fears of fancy. When the 1942 change in name was pending in the Congress, the Attorney General of the United States wrote the Secretary of the Treasury on June 5, 1942, that constitution of the Board of Tax Appeals as a Federal Court would involve a change in the representation of the Government before that body. Attorneys of the Bureau of Internal Revenue now represent the Government in the Tax Court. If this bill should pass, this function would, according to the Attorney General, be transferred to the Department of Justice. Now, if only the Department of Justice can handle tax cases for the Government, we are surely justified in being skeptical about the continuance of the right of accountants and others not members of the legal profession to represent clients before the Tax Court.
Mr. Speaker, under the section entitled “Confusion,” the gentleman from Alabama refers to two procedural problems that have arisen in the disposition of tax litigation originating in the Tax Court. The first problem is the scope of review by the United States Circuit Court of Appeals and by the United States Supreme Court of Tax Court decisions. Now, it is true that the scope of review of Tax Court decisions is more limited than review of tax cases originating in the United States District Courts. The leading case in this field is Dobson v. Commissioner (320 U.S. 489), decided in 1943.
What is the proper scope of review of tax cases on appeal from the Tax Court has been the subject of very intensive study by the staff of the Joint Committee on Internal Revenue Taxation and the Treasury Department. There surely is no justification for legislating on this subject without obtaining the benefit of their expert opinion. Whatever the decision may be, the desired result can be accomplished by a simple amendment to section 1141(c) of the Internal Revenue Code without disturbing the present status and functions of the so-called Tax Court.
The second problem discussed by the gentleman from Alabama [Mr. Hobbs] is the one raised in a recent dictum of the Circuit Court of Appeals for the Sixth Circuit in the Lincoln Electric Co. case, decided June 5, 1947. The court suggested in that case that the Administrative Procedures Act applies to the Tax Court. Now, of course, the Tax Court, which has its own flexible rules of administration and practice, should not be subject to the Administrative Procedures Act. But Mr. Speaker, all doubt can be removed by the insertion of a specific exception in section 2 of the Administrative Procedures Act. So, to try to justify the drastic changes which would be effected by proposed chapter 13 is like condoning the amputation of a leg to get rid of a wart on the toe.
I repeat that the former Board of Tax Appeals is an administrative agency which reviews administrative determinations. I quote from a letter dated July 3, 1942, from the Attorney General to the chairman of the Committee on Ways and Means:
The Supreme Court has repeatedly characterized it as an administrative body exercising quasi-judicial powers (Old Colony Trust Co. v. Commissioner (279 U.S. 716; Goldsmith v. Board of Tax Appeals (270 U.S. 117). Its administrative status has been held sharply to distinguish it from a court. Cf. Blair v. Oesterlein Machine Co. (275 U.S. 220), with Williamsport Co. v. United States (277 U.S. 551). Its jurisdiction is limited by statute. It does not have authority to enforce its decisions (U.S. ex rel. Girard Co. v. Helvering (301 U.S. 540, 542); nor does it possess any of the inherent powers of a court. It is in no sense a part of the judicial branch of the Government.
When the Committee on Ways and Means created the Board of Tax Appeals it was intended that Mr. Average Citizen could present his case before the Board without becoming entangled in Latin phrases such as “certiorari,” “habeas corpus,” and “de novo,” or other legalistic mumbo-jumbo, and I understand that the experts all agree that certain types of cases can best be handled before the tax courts by accountants or other qualified business analysts. For example, section 722 of the Internal Revenue Code deals with relief for hardship cases under the excess-profits tax. An accountant with or without the assistance of a lawyer will, I am told, probably present a better case for his client than a lawyer who in any event must rely heavily upon the counsel of an accountant.
Mr. Speaker, the question here is not merely one of procedure or jurisdiction. In view of the history of the Tax Court to date, its supervision by the Committee on Ways and Means, and the commitments made at the time of enactment of the Revenue Act of 1942, the question on passage of this bill, as long as the Tax Court provision remains, is an elementary matter of right and wrong. The bill should be recommitted to the Committee on the Judiciary with instructions to delete all references to the Tax Court.
Mr. Doughton. Mr. Speaker, will the gentleman yield?
Mr. Dingell. I yield.
Mr. Doughton. Is it not a fact that this matter of changing the name “board” to “court” was before our committee several times during different Congresses and that some of us, being fearful that the next step would be to make it a court of record, inquired of the proponents as to that; and did they not insist repeatedly that there was no such purpose or intention, and that the only thing they sought to accomplish was to enable a member of the board, when he was sent out to a Federal court building, to obtain facilities for conducting the hearings? It was contended that, unless the name was changed to the Tax Court, they would not be able to get facilities for conducting their hearings. Did not the proponents of this matter disclaim any purpose whatsoever ever to make it a court? Is it not a fact that that is how the bill got through our committee? I have no criticism to make, but that is all they claimed. When we asked them if the next step at some other time might not be to make it a court, they disclaimed any such intention. The gentleman from Tennessee [Mr. Cooper] and other members of the committee will testify to the fact, also, that they said there was no such purpose or thought or intention. Now, see what you have.
Mr. Dingell. The gentleman is absolutely correct. Here you are confronted with the consideration of a bill 190 pages long, superimposing a new tax court system on the Nation. It is something unheard of, so far as I can determine, in the consideration of a similarly important step in such limited time for debate.
Mr. Cooper. Mr. Speaker, will the gentleman yield?
Mr. Dingell. I am glad to yield to the gentleman from Tennessee.
Mr. Cooper. I am sure the gentleman from Michigan will agree that the Board of Tax Appeals was created by the Revenue Act of 1924 on the recommendation of President Coolidge for the benefit of, and in the interest of, the taxpayers of this country.
Mr. Dingell. That is correct.
Mr. Cooper. The statute was amended in 1926. Prior to 1924, when a deficiency assessment was made against the taxpayer the taxpayer had to pay that assessment and then sue for a refund in court. Therefore, in order to help the taxpayers of the country, the Board of Tax Appeals was created to permit the taxpayer to appeal from the decision of the Commissioner of Internal Revenue to a Board of Tax Appeals, so that the matter could be determined and settled without the taxpayer having to pay the money beforehand. It was entirely in the interest of the taxpayers of this country.
Mr. Dingell. That is correct.
Mr. Cooper. It was created as an administrative board in the executive branch of the Government. It never was intended to be as a court, and it was not expected to be a court. Throughout all the years when taxpayers and other people have appeared before the Committee on Ways and Means, we have never at any time heard any request from the taxpayers of the country for the change that is here proposed to be made.
Mr. Dingell. That is correct.
Mr. Cooper. So the Ways and Means Committee took a position by a vote of 16 to 3, against the provisions included in this bill. It is the position of the Committee on Ways and Means that such changes in procedure or scope of review as are necessary to be made in the interest of the taxpayers of this country should be considered by the Committee on Ways and Means, which has handled this matter all the way through. Our committee should make whatever decisions that may be necessary to meet the Dobson decision, or any other decision along that line.
Mr. Dingell. I agree with that entirely.
Mr. Doughton. Mr. Speaker, will the gentleman yield?
Mr. Dingell. I yield.
Mr. Doughton. Does not the gentleman think that a matter of this importance should be granted more than 40 minutes' discussion?
Mr. Dingell. I agree with the gentleman. It should not be brought in here at all. They could not get a rule before the Rules Committee, so they drag it in here under any means they can in order to get it by the Congress.
Mr. Robsion. Mr. Speaker, will the gentleman yield?
Mr. Dingell. Let me finish my statement, and then I will yield.
Mr. Robsion. The gentleman has made a statement that will not stand up. The gentleman said we could not get a rule. Of course we can get a rule.
Mr. Dingell. Mr. Speaker, a point of order. Have I the floor or not?
The Speaker. The gentleman certainly has the floor.
Mr. Dingell. Now, the gentleman from Kentucky seemingly resented my reference to the fact that he was unable to get a rule from the Rules Committee. Perhaps my deductions were incorrect, but I will ask the gentleman this question: Why did you not go there on an important matter of this kind, when you are trying today to superimpose upon the judicial system of this country an entirely new Tax Court system, where it will be necessary for Mr.
John Taxpayer to go through all the interminable delay of Federal court procedure? Why did you not do that? This is one of the most important things ever presented to this Congress.
Mr. Robsion. For the same reason that today, under suspension of the rules, we passed the soldiers' relief bill. Let me answer the gentleman's question. The Department of Justice, the Supreme Court, and the judges and everybody are behind this bill except a few friends of the Ways and Means Committee.
Mr. Dingell. No; that is wrong. I challenge that statement. I cited the Supreme Court decisions which held the Tax Court to be an administrative agency in the administrative branch of the Government, and that it was never a court.
Mr. Robsion. There are 173 chapters in the bill. We recently passed 6 titles of the code.
Mr. Dingell. That is not an answer to my question.
Mr. Robsion. And we believe this title should be passed.
Mr. Dingell. Mr. Speaker, I ask unanimous consent to insert in the Record a reprint of my remarks in the matter in the Seventy-seventh Congress, July 17, page 6335.
The Speaker. Is there objection to the request of the gentleman from Michigan?
There was no objection.
Mr. Robsion. Mr. Speaker, I yield 2 minutes to the gentleman from New York [Mr. Keogh] for he is chairman of the Committee on Revision and Codification of the Laws.
(Mr. Keogh asked and was given permission to revise and extend his remarks.)
[Mr. Keogh addressed the House. His remarks will appear hereafter in the Appendix.]
The Speaker. The time of the gentleman from New York has expired.
Mr. Robsion. Mr. Speaker, I yield 1 minute to the gentleman from Texas [Mr. Gossett].
Mr. Gossett. Mr. Speaker, it may have been brought out in the debate before, but I think it ought to be made clear, that one of the higher courts in a decision the other day held that the Tax Court which we thought was a court is not in effect a court but a board and is now subject to the rules of the Administrative Procedure Act passed last year.
Unless the Tax Court is in effect a court, it is going to be nothing but a debating society.
Mr. Keogh. Mr. Speaker, will the gentleman yield?
Mr. Gossett. I yield.
Mr. Keogh. As a matter of fact, the reason the Tax Court was not specifically excluded from the Administrative Procedures Act was an opinion by the Attorney General to a committee in the other body to the effect that it was a court.
Mr. Gossett. That is true. I appreciate the gentleman's contribution. Action was taken on the opinion of the Attorney General that the Tax Court was a court. But now in view of the recent decision of one of the higher courts, they do not know where they are. I submit to the gentleman it is highly desirable, if not absolutely essential, that the status of the Tax Court be cleared up and in the manner we are seeking to clear it up. It ought to be a court in the interest of orderly procedure and in the interest of litigants who appear there. It ought to be taken out of the Executive agency and placed in a judicial status.
Mr. Robsion. Mr. Speaker, I yield 1 minute to the gentleman from Alabama [Mr. Hobbs].
Mr. Hobbs. Mr. Speaker, knowing that our time would be very limited today, I briefed this case on July 2, page A3483 of the Congressional Record of that date. We all have the highest regard for the Ways and Means Committee and its members. There is no criticism and we do not blame them for being sore for what the members of their committee conceive to be a breach of an agreement on the part of some members of the Tax Court.
What we want to show you is this, if you will bear with us a minute: We are not invading the jurisdiction of that committee in any way, shape, form, or fashion. We want to prevent what is going on now--denying the Government of the United States, as well as the taxpayers of this Nation, any kind of adequate review of many decisions of the Tax Court. It is not now, it never has been, a court, and that is why we have to make it a court. The Ways and Means Committee, by its bill of 1942, which was passed and became law, said that the Board of Tax Appeals should be no longer called by that name they had given it 18 years before, but that it must be named “The Tax Court of the United States.”
We finally submit to you that you cannot let the injustice go on of allowing adequate judicial review of decisions of the district courts all over the United States and not give adequate review to the taxpayers, nor to the Government, in these Tax Court cases.
Mr. Dingell. Mr. Speaker, will the gentleman yield?
Mr. Hobbs. I am so glad to yield to the gentleman.
Mr. Dingell. The gentleman knows that Mr. John Q. Taxpayer can go into the courts now, if he chooses.
Mr. Hobbs. Mr. John Q. Taxpayer can go into the courts now, if he has a long enough purse. He may buy himself in. He cannot do it now any other way. That is why out of 3,000 sections in this title 28 of the United States Code, that you authorized $100,000 to make us write, we have made only one change of which you complain and that was made necessary by reason of your calling your creature a court when you did not mean it, thereby intruding into the province of the Judiciary Committee, where we always welcome you.
Mr. Devitt. Mr. Speaker, the controversial aspects of H.R. 3214 concern themselves with those sections thereof which remove the statutory provisions relating to the Tax Court from the Internal Revenue Code to the Judicial Code and which classify the Tax Court as a court of record.
The change is made necessary as a result of the decision of the United States Supreme Court in the Dobson Case (320 U.S. 489), the recent decision of the United States Circuit Court of Appeals for the Sixth Circuit in the Lincoln Electric Co. against Commissioner case, and the enactment by the Seventy-ninth Congress of the Administrative Procedure Act.
The Tax Court was created as the Board of Tax Appeals under the Revenue Act of 1924. Changes have been made in it in subsequent laws from time to time. It is clear from an examination of the statutes that the Tax Court performs purely judicial functions. Cases are initiated on formal pleadings, and the trials are limited to the issues joined. These trials are substantially the same as those before a Federal district judge sitting without a jury.
The rules of evidence are those applicable in courts of equity of the District of Columbia. The hearings, including the testimony, are stenographically reported. Written findings and opinions are made in all cases heard and decided on the merits. Appeal lies directly from the decision of the Tax Court to the appropriate circuit court of appeals. Such review is had on the record of the court below and, as in cases heard and decided by the other Federal courts, such cases may go to the Supreme Court by writ of certiorari. The opinions of the Tax Court are published in printed volumes. On the face of it, it would appear that there is absolutely no doubt that the Tax Court is a thoroughly judicial body.
By reason of the fact, however, that in section 900 of the Revenue Act of 1926 and section 1100 of the Internal Revenue Code, the Board of Tax Appeals was described as being continued “as an independent agency of the executive branch of the Government,” many practical difficulties are constantly encountered. When, for instance, new legislation is enacted relative to executive departments and administrative agencies in general, there is invariably the question whether the legislation is applicable to the Tax Court. The difficulty is present with reference to the application of the Reorganization Act of 1945.
Of much more serious import than the Reorganization Act, however, is the recently enacted Administrative Procedure Act. That act defines the term “agency” as meaning “each authority of the Government of the United States other than Congress, the courts, or the governments of the possessions, Territories, or the District of Columbia.” It thus appears that unless the Tax Court is clearly defined as a court, it is subject to the requirements of the Administrative Procedure Act and its procedure must be in conformity with that law.
As a practical matter, it would be impossible for the Tax Court to function as it now functions, and has always functioned, if the Administrative Procedure Act is applicable. This is true because under the Administrative Procedure Act a citizen whose case has been heard by a hearing commissioner may, as a matter of right, appeal to the agency as a whole. In the case of the Tax Court it would mean that if a litigant received an adverse decision from one member of the Tax Court, he would have the right to appeal to the entire 16-man bench. This would involve too much work for the Tax Court. It is now overburdened. The only alternative would be to employ a large staff of commissioners or trial examiners at a greatly added expense to the Government, and in such event it would be impossible, with the necessary dual hearings, to conduct the normal business of the court.
The fact that the judges of the Tax Court personally hear their cases has been an outstanding attribute of the successful operation of the court, and has been one which has commended it so favorably to the Government and the public alike. The practice should be continued.
The confusion engendered by the statute which brands this court as an “independent agency in the executive branch of Government” is emphasized by the decisions of the Supreme Court in the Dobson case and the Lincoln Electric Co. case.
The Dobson case has created great confusion in the field of tax law. Its implications, and the implication of the Lincoln Electric case, are far reaching as pertaining to the status of the Tax Court because both cases recognize the Tax Court, not as a court, but as an administrative agency of Government. The Lincoln Electric Co. case held that the Tax Court is subject to the provisions of the Administrative Procedure Act. Immediate action is necessary by the Congress in order to clarify the status of the Tax Court. The pertinent provisions of H.R. 3214 recognize the Tax Court as a court and not as an administrative agency of the Government. This bill titles the Tax Court a court of record. This relieves the court of the necessity of complying with the Administrative Procedure Act. An amendment to be offered by the committee will rectify the confusion created by the Dobson case.
It is said in some quarters that this is purely a “lawyers' bill” and that it is an attempt to prevent nonlawyers from practicing before this tribunal. This is not the case. The bill makes no changes with reference to admission to practice of accountants and other nonlawyers. Rule 2 of “Rules of Practice Before the Tax Court of The United States” specifically provides now that applicants who establish good moral character and the requisite qualifications may be admitted to practice before the court. This has been the rule for many years. It is not changed by this bill. The court has no intention of changing the rule. The presiding judge so testified in the hearings before the full Judiciary Committee.
H.R. 3214 is a sound piece of legislation. It is long overdue. In the interest of good government we must have an orderly and systematic presentation of our laws. H.R. 3214 is a commendable effort to make our laws systematic and easily understandable. There can be no legitimate objection to a revision and recodification of our outmoded statutes. It is to the best interests of the members of Congress, the bench, the bar, and the general public that H.R. 3214 be enacted into law.
Mr. Hays. Mr. Speaker, there should be no confusion whatever regarding the work or the status of the Tax Court of the United States. This bill is necessary however to correct imperfections in previous statutes defining its function and, not to reverse the policy of Congress with reference to the court. Never at any time has the Congress prescribed any other function for the court than a judicial function. In the period in which it was called the Board of Tax Appeals it was continuously performing a judicial, not an administrative service. It is true, as the gentleman from Texas [Mr. Gossett] states that without this proposed legislation the court will be subject to the Administrative Procedures Act under the Lincoln Electric Co. case decided by the Circuit Court of Appeals for the Sixth Circuit and this was obviously not contemplated by the Congress. The decision rests upon a technicality which the bill would correct. Even in 1924 when the court was established the Congress chose the judicial procedure in preference to the informal or negotiation type of relief for those taxpayers disputing the Government's claims.
In 1926, after the Board had functioned under this mandate, Mr. A.W. Gregg, Solicitor of Internal Revenue, had this to say about the Board's work:
The Treasury Department originally recommended a board in the Treasury Department with informal procedure to settle tax cases. It was recognized at the time that there were two needs--one for a board to settle tax cases--and I mean settle them in the sense of settling them across the table--and the other a court to establish precedents, the latter not for its value in deciding the cases which would be presented to it, because they necessarily must be limited in number, but for the purpose of establishing precedents to guide the bureau in the settlement of other cases and to guide the taxpayer in disposing of his case.
The original recommendation of the Treasury Department was for a board to settle tax cases. Congress changed that and gave us the other, which was also much needed--a court to establish precedents for the disposition of other cases pending in the Department.
Having done that, it seems to me that Congress should go the whole way and establish it in name and in other respects as they have established it in fact--as a court; call it a court and give the members long terms--I think making it a court involves making the appointments to it for life or good behavior--give the members salaries which are adequate and continue what we have now, a body to create precedent for the disposition of the other cases in the bureau.
Thus it will be seen that the Treasury Department recognized the wisdom of pursuing the formal procedure. At that time, 1926, the Congress went further and made the board a court of record and provided for the first time for appeals to the circuit court of appeals.
In 1928, the Committee on Ways and Means of the House, acting on the view that the Board of Tax Appeals should have status as a judicial body not susceptible of any doubt, inserted the following provision in the bill designed to clarify the situation:
Force and effect of rules: A recent decision by the Circuit Court of Appeals for the Seventh Circuit indicates that there is some disposition to regard the Board of Tax Appeals as an investigative rather than a judicial body, and to require it to reach its decision not merely on the basis of the evidence presented in the record, but on the basis of such additional evidence outside the record as may be necessary fully to develop the taxpayer's case. The committee is of the opinion that the Board's function is purely judicial, and in order to clarify the situation has provided that no decision of the Board (whether rendered before or after the bill becomes law) should hereafter be modified or reversed because the Board or any of its divisions has failed to consider evidence not adduced before the Board or division. At the same time the committee has provided that the rules of practice and procedure of the Board shall, just as the Federal equity rules, have the force and effect of law.
After the bill was passed and went to the Senate, the Senate Finance Committee eliminated the provision which had been placed in the House bill and in doing so made the following statement on page 38 of its report on the bill to the Senate:
Modification or reversal of board decision: In view of certain expressions in a recent court opinion, the House bill in section 601 provides that no decision of the board shall be modified or reversed because the board has failed to consider evidence not adduced before it. While an appellate court has the right and duty, if an error of law has been made, to remand a case to the board for subsequent proceedings in accordance with law, the existing provisions of law clearly contemplate judicial, not administrative, procedure on the part of the board and the committee can see no need of further legislation on this subject. It is not the duty of the board to make investigations of tax cases but to decide the case on the basis of evidence properly placed before it by the commissioner and the taxpayer.
Thus both House and Senate concurred in the view that the Board was a judicial body.
Mr. Speaker, it is clear that as constituted by the Revenue Act of 1926 the Board of Tax Appeals, now The Tax Court of the United States, was organized and has since functioned according to judicial principles. There have been no changes of any substance either in its character or its manner of procedure. By the Revenue Act of 1942, its name was changed from the Board of Tax Appeals to The Tax Court of the United States.
Its jurisdiction was, up to the enactment of the Revenue Act of 1943, limited to cases involving Federal taxes, chiefly income tax, estate tax and gift tax. By the provisions of the Revenue Act of 1943, it was given jurisdiction to hear and decide proceedings as to the amount, if any, of excess profits realized by contractors under war contracts. Basis for these proceedings is the unilateral determination by the War Contracts Price Adjustment Board, or, in the case of contracts ending prior to July 1, 1943, by a Department or Government Agency, that the profits of a contractor under a war contract or contracts are excessive in the amount therein shown. In such case the contractor, as in the case of taxpayers in tax cases, was given the right to institute a proceeding before The Tax Court and to have a trial thereon, for the purpose of showing no excessive profits or a lesser amount of excessive profits than that determined against him. The proceeding was declared to be a trial de novo. They are heard and decided, as in tax cases, on the issues drawn and pleaded by the pleadings filed.
The above history clearly indicates that Congress created a court and made it quite obvious that the creation of a court was intended.
Mr. Keating. Mr. Speaker, this bill so forcefully presented by the distinguished gentleman from Kentucky [Mr. Robsion], who has labored extensively and ably in the field of codification of the laws, deserves the support of this body.
The most important change in existing law is to make The Tax Court a judicial rather than an administrative body. The hearings before the Committee on the Judiciary, especially the testimony of the present presiding judge of the court, convince me beyond a doubt that this change should be made.
I am happy that the committee has accepted an amendment at the end of section 2560 to provide as follows:
No qualified person shall be denied admission before such court because of his failure to be a member of any profession or calling.
Considerable doubt has been raised that the conversion of this body to a court of record might prevent practice before it by anyone other than a member of the bar. As a lawyer, I would be the last to contend that a legal training is not highly desirable for a practitioner before The Tax Court. In all fairness, however, we must recognize that the litigation which comes before that court is often of a peculiarly technical character which circumstances may dictate can best be presented by a certified accountant, or in part by a lawyer and in part by one skilled in figures. To compel membership in the bar is a condition precedent to practice in this court would be a departure from precedent which I do not feel prepared to take.
In many of these important cases it is desirable and in the interests of the litigant for lawyers and accountants to associate in the prosecution of the case. It would be a mistake, in my judgment, for Congress to interfere with this practice. The situation regarding this court seems to be quite different from other judicial bodies in this respect. To deprive accountants by legislative enactment of the right to practice before The Tax Court after it becomes a judicial body, while perhaps advantageous to lawyers, would deprive qualified nonlawyers of a valuable right without a showing of correlative advantage to the litigants, who in good conscience should be the object of our chief concern in the consideration of this legislation.
I urge support of this amendment and this bill.
The Speaker. The question is on suspending the rules and passing the bill.
The question was taken: and on a division (demanded by Mr. Dingell) there were ayes 91, noes 12.
Mr. Dingell. Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.
The Speaker. Obviously a quorum is not present.
The Doorkeeper will close the doors, the Sergeant at Arms will notify absent Members, and the Clerk will call the roll.
The question was taken; and there were--yeas 342, nays 23, not voting 65, as follows:
[ROLL NO. 100]
So (two-thirds having voted in favor thereof) the rules were suspended and the bill was passed.
The Clerk announced the following pairs:
Additional general pairs:
Mr. Arends with Mr. Sheppard.
Mr. Bates of Massachusetts with Mr. Bloom.
Mr. Hope with Mr. Courtney.
Mr. Hartley with Mr. Gregory.
Mr. Jones of Washington with Mr. Hébert.
Mr. Gifford with Mr. West.
Mr. Mitchell with Mr. Jones of North Carolina.
Mr. Eaton with Mr. Vinson.
Mr. Mack with Mr. Hendricks.
Mr. Shafer with Mr. Kee.
Mr. Jones of Ohio with Mr. Kerr.
Mr. Rankin changed his vote from “nay” to “yea.”
The result of the vote was announced as above recorded.
The doors were opened.
A motion to reconsider was laid on the table.
Mr. Robsion. Mr. Speaker, I ask unanimous consent that the printing of the bill in the Record be dispensed with but that the amendments be printed.
The Speaker. Is there objection to the request of the gentleman from Kentucky?
There was no objection.
GENERAL LEAVE TO EXTEND REMARKS
Mr. Robsion. Mr. Speaker, I ask unanimous consent that all those who desire may extend their remarks in the Record at the point the bill was being considered.
The Speaker. Is there objection to the request of the gentleman from Kentucky?
There was no objection.
SENATE FLOOR DISCUSSION AND ACTION ON
THE REVISION OF TITLE 28 (H.R. 3214)
June 12, 1948
(94 Congressional Record 8108-8111)
The Senate proceeded to consider the bill (H.R. 3214) to revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary,” which had been reported from the Committee on the Judiciary with amendments.
Mr. Hatch. Mr. President, may we have a brief explanation of the bill?
The President pro tempore. The Senator from Missouri [Mr. Donnell] is recognized for 5 minutes.
Mr. Donnell. Mr. President, in the absence of the chairman of the Committee on the Judiciary, I shall attempt to comply with the suggestion and the request of the Senator from New Mexico.
The purpose of this bill, which is a very extensive one, is to codify and revise the laws relating to the Federal judiciary and judicial procedure. In addition to these very important purposes, Mr. President, the bill has as its further purpose the enactment into positive law of those laws so codified and revised.
The Senator from New Mexico will recall--
Mr. Hatch. Mr. President, I remember now, and I know what the Senator is speaking about. So far as I am concerned, I shall need no further explanation.
Mr. George. Mr. President, let me ask the Senator what was done with the provision of the bill dealing with the Tax Court.
Mr. Donnell. Mr. President, the House of Representatives placed into this bill a tax-court provision. It was considered with great care, I think it is just to say, by the subcommittee of the Senate Judiciary Committee. Extensive hearings were held, at which various controversial matters, and particularly one controversial matter relating to the Tax Court, were heard. As a net result of the facts so developed, it was concluded by the subcommittee of the Senate Judiciary Committee that it was advisable to withdraw from House bill 3214 all provisions by which the Tax Court would be placed under the judiciary. Consequently, Mr. President, included among the 80 amendments which are embodied in this extensive bill are quite a number which have the effect of withdrawing the House provisions incorporating the Tax Court under the Judicial Code.
Does that answer the Senator from Georgia?
Mr. George. Yes; that is quite satisfactory.
Mr. Robertson of Virginia and Mr. Millikin addressed the Chair.
The President pro tempore. Does the Senator from Missouri yield; and if so, to whom?
Mr. Donnell. I yield first to the Senator from Virginia, who has been on his feet for some time.
Mr. Robertson of Virginia. Mr. President, the Senator from Georgia has asked the question which the Senator from Virginia had planned to ask. I was happy to hear the reply from the Senator from Missouri.
The bill presents this codification as a thoroughly expert codification of existing law; does it not?
Mr. Donnell. Mr. President, that is not quite an accurate statement to this extent: In codifying and revising, it was felt essential in some instances--as, for instance, in the matter of habeas corpus--to redraft the provisions of the statute. We had the advantage of knowing what the judicial conference of senior circuit judges, of whom the Honorable John J. Parker, I think, is the head, had decided as to what should be done with respect to that particular subject. That is but one illustration of various changes that have been made.
It would take considerable time to state all the changes; but I may say that the purpose of this bill is primarily to revise and codify and to enact into positive law, with such corrections as were deemed by the committee to be of substantial and noncontroversial nature.
Mr. Hatch. Mr. President, will the Senator yield for a question?
Mr. Donnell. I yield to the Senator from Virginia, who still is on his feet.
Mr. Robertson of Virginia. Mr. President, all I inquired about was the codification. I understand that it was done by experts; and it is a splendid job. The only item into which I wished to look was the one the committee has eliminated.
Mr. Donnell. Mr. President, I think the Senator from Virginia is quite correct.
There was assembled a staff of experts who, in my opinion, are real experts. They are identified in the House committee report. In addition to that, the House had the advantage of an advisory committee composed of outstanding men with years of practical experience at the bar and on the bench. In addition to that, Mr. President, the committee had the advantage of the conference to which I have referred, with which Judge Parker is connected, and also had the advantage of the experience and observations of the Judicial Conference Committee on the revision of the Judicial Code, appointed by the Honorable Harlan Fiske Stone, late Chief Justice of the United States, the chairman of the committee being Judge Albert B. Maris, judge of the United States Circuit Court of Appeals for the third circuit. I wish to pay tribute at this time to Judge Maris' assistants and collaborators for the splendid work done in this connection.
Mr. President, I desire to read three sentences from the report of the Committee on the Judiciary of the House of Representatives, which I think in justice should be placed in the Record, namely:
The work of revision was greatly facilitated and advanced through the cooperation of a committee of Supreme Court justices appointed by the Chief Justice. This committee consisted of the late Chief Justice Stone and
Associate Justices Frankfurter and Douglas. It was most cooperative in the solution of problems of concern to that Court.
The President pro tempore. The time of the Senator from Missouri has expired.
Mr. Donnell. Mr. President, if I am not trespassing upon the time rule, in view of the fact that there are approximately 80 amendments to this bill, unless some Member of the Senate desires to separate some one or more of them which he thinks should be separately considered, I ask unanimous consent that the amendments be considered en bloc.
The President pro tempore. Is there objection to the request that the amendments be considered en bloc?
Mr. Hatch. Mr. President, in my own time I wish to say to the Senator from Missouri that I had risen to ask a question, but the statements the Senator has made have answered it.
The President pro tempore. Without objection, the amendments will be considered en bloc.
The question is on agreeing to the amendments.
The amendments were agreed to en bloc, as follows:
The President pro tempore. If there be no further amendment to be proposed, the question is on the engrossment of the amendments and third reading of the bill.
The amendments were ordered to be engrossed and the bill to be read a third time.
The bill was read the third time and passed.
Mr. Donnell. Mr. President, I take it that the action which has been taken means that the bill has been passed, including the amendments reported by the committee.
The President pro tempore. That is correct.
Mr. Johnson of Colorado. Mr. President, I enter a motion to reconsider the vote by which House bill 3214, Calendar 1608, was passed. I do so in order that we may still hold control over the bill until I make a certain check.
The President pro tempore. The motion will be entered.
WITHDRAWAL OF MOTION TO RECONSIDER ON JUNE 15.
(94 Congressional Record 8554)
Mr. Johnson of Colorado. Mr. President, on June 12 I entered a motion to reconsider the bill (H.R. 3214) to revise, codify, and enact into law title 28 of the United States Codes, which had passed both Houses. I desire to withdraw the motion at this time.
The Presiding Officer. Without objection, the motion referred to by the Senator from Colorado is withdrawn.
ADDITIONAL REMARKS OF SENATOR DONNELL.
June 16, 1948
(94 Congressional Record 8613)
Mr. Donnell. Mr. President, on page 8108 of the Congressional Record of June 12 of this year, there appear, among other things, in the course of remarks made by myself, the following two sentences having to do with H.R. 3214:
Extensive hearings were held, at which various controversial matters, and particularly one controversial matter, relating to the Tax Court, where heard. As a net result of the facts so developed, it was concluded by the subcommittee of the Senate Judiciary Committee that it was advisable to withdraw from House bill 3214 all provisions by which the Tax Court would be placed under the judiciary.
Mr. President, in making that statement I was in error. As a matter of fact, as a net result of the facts developed at the hearings it was concluded by the subcommittee of the Senate Judiciary Committee that there should be retained in House bill 3214 the various provisions by which the Tax Court would be placed under the judiciary.
Subsequently, however, when the matter was presented by the subcommittee to the Committee on the Judiciary, it became obvious that it was impossible to secure the passage on the Consent Calendar of this very important bill if the provisions with respect to the Tax Court were to be retained in it.
Therefore, Mr. President, the members of the subcommittee, uniting with the other members of the Senate Committee on the Judiciary who were present, arrived at the conclusion that it was advisable and proper that the provisions with respect to the Tax Court should be withdrawn from H.R. 3214.
Mr. President, the fact is that the subcommittee, of which I had the honor to be chairman, in its own conclusion determined that the Tax Court should be left in the bill. The Committee on the Judiciary itself, with full approval of the three members of the subcommittee, including myself, determined, for the reasons stated, that the Tax Court provisions should be withdrawn. In the interests of accuracy, Mr. President, I desire to make this statement. I may say that the provisions with relation to the Tax Court were withdrawn from the bill as passed.
FINAL HOUSE FLOOR DISCUSSION AND ACTION,
ON JUNE 16, 1948 ON THE REVISION
TITLE 28 (H.R. 3214)
(94 Congressional Record 8675-8678)
Mr. Reed of Illinois. Mr. Speaker, I ask unanimous consent to take from the Speaker's desk the bill (H.R. 3214) to revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary,” with Senate amendments thereto and concur in the Senate amendments.
The Clerk read the title of the bill.
The Clerk read the Senate amendments, as follows:
The Speaker. Is there objection to the request of the gentleman from Illinois?
There was no objection.
Mr. Reed of Illinois. Mr. Speaker, the bill H.R. 3214, to revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary,” which, in my opinion, represents one of the most important improvements in the structure of the Federal statutory law since the adoption of the United States Code more than 20 years ago, was prepared by a group of experts under the supervision of Subcommittee No. 1 of the Committee on the Judiciary and its law revision counsel with the active cooperation and advice of an outstanding group of judges and lawyers. This bill as reported by the Committee on the Judiciary, and as it passed the House, transferred the provisions relating to the Tax Court for the Internal Revenue Code to the Judicial Code. After hearings before a subcommittee of the Senate Judiciary Committee at which testimony was adduced revealing a controversy between bar associations and accountants groups as to whether the right of accountants to practice before that court should be preserved, the bill was amended by the Senate Judiciary Committee to eliminate Tax Court provisions. Your committee being apprehensive that a controversy of this nature might cause undue delay and interfere with final action on the bill at this session accordingly has authorized me to request unanimous consent to take the bill from the Speaker's table and concur in the Senate amendments. We believe, however, that the Tax Court provisions should be incorporated in the Judicial Code at the earliest date.
H.R. 3214 includes a provision designed to eliminate the effects of the decision of Dobson v. Commission (320 U.S. 489).
The hearings in the Senate make absolutely clear the purpose of this provision, but it seems desirable to enlarge upon the brief statement in the Senate committee report with respect to that provision so that there can be no question about the intent of Congress.
Section 36 of the bill, as it passed the Senate, removes all traces of the Dobson decision. Prior to the decision in that case the statutory provision for review of Tax Court decisions by circuit courts of appeal had always been construed to grant the same scope of review over Tax Court decisions as over decisions of United States district courts. This meant that questions of law were fully reviewable and questions of fact were subject to the same sort of limited review as is available in review of district court decisions. However, in the Dobson decision, the Supreme Court created new rules as to the scope of review as to questions of law and fact, although the point had not been raised by counsel.
The present bill amends the law that is interpreted in the Dobson decision and restores to the circuit courts of appeal the power to review Tax Court decisions in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury. The bill does not attempt to define what is a question of fact or what is a question of law or to answer any of the other complicated questions which would be involved in spelling out de novo the complete scope of review. There is no necessity to do this. It is sufficient that whatever the scope of review over civil actions--whether tax cases or nontax cases--coming from the district courts, the same scope of review should exist over cases coming from the Tax Court.
At a meeting of the full Committee of the Judiciary on June 15, the following expression of views with respect to the Senate amendments was unanimously agreed upon for insertion in the Record.
VIEWS OF THE COMMITTEE ON THE JUDICIARY
WITH RESPECT TO SENATE AMENDMENTS TO
H.R. 3214
In order to insure and expedite final action on the bill, H.R. 3214 to revise, codify and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary”, the Committee on the Judiciary authorizes the chairman of subcommittee No. 1 to take from the Speaker's table the bill with the Senate amendments and request unanimous consent to agree to said amendments.
Many of the Senate amendments are intended to eliminate from the bill all provisions relating to the tax court. Under the existing law those provisions are set out in title 26 of the United States Code, the Internal Revenue Code, and the bill, H.R. 3214, as agreed to by the House, transferred these provisions from the Internal Revenue Code to the Judicial Code. It is the belief of the Committee on the Judiciary that the transfer of these provisions constituted more of a change in form than in substance. The Tax Court of the United States is already a court in both name and fact, exercising purely judicial functions, but its housekeeping administration needs clarification.
However, rather than to jeopardize final action upon the bill at this late date, the committee agrees to the Senate amendments eliminating those provisions from the bill. It is hoped that the judicial code will be amended early in the next Congress by incorporating the desired clarification.
THE RULE IN THE DOBSON CASE
Section 1294 of title 28 of the United States Code, set out in H.R. 3214 as it passed the House, relating to appeals from the Tax Court, provided that Tax Court decisions shall be subject to review by the courts of appeals in the same manner and to the same extent as decisions in the district courts in cases tried without a jury. That section accomplished the much-needed correction of the effects of the rule laid down by the Supreme Court in the case of Dobson v. Commissioner (320 U.S. 489 (1943)). In that case, the Supreme Court held that the review of the Tax Court decisions by the Circuit Courts of Appeal should be a very limited review because of some peculiar characteristics of the Tax Court. Accordingly, in the Dobson decision, the Supreme Court construed section 1141 of the Internal Revenue Code in such a way as to reduce the right of review in either the taxpayer or the Government in the great majority of Tax Court cases.
Section 1141 of the Internal Revenue Code provides for court review of Tax Court decisions. From the time this appellate review was established by the Revenue Act of 1926 until the Dobson decision in 1943, there had been no suggestion that the review of the Tax Court decisions was any more limited than the appellate review of decisions of the United States District Courts. It was assumed by the courts that, on appeal from the Tax Court, questions of law were fully reviewable and questions of fact were subject to the same sort of limited review that prevailed on appeals from United States District Courts. The Supreme Court in the Dobson case, however, created a new rule of law which would not permit even law questions to be reviewed unless they were clear-cut questions of law, and which would not permit any worth-while review of decisions of fact. In effect, it was an abdication by the Supreme Court, on behalf of itself and the Circuit Courts of Appeal, of judicial authority conferred upon the courts by Congress.
Section 1294 of the Judicial Code set out in H.R. 3214, as passed by the House of Representatives, remedied the effect of the Dobson decision. In view of the elimination of the Tax Court provisions from the bill in the Senate, and the consequent elimination of section 1294, the Senate has substituted an amendment to section 1141(a) of the Internal Revenue Code with the same result intended by section 1294. This provision, which is section 36 of the bill as it passed the Senate, restores to the Circuit Court of Appeals the power to review cases coming from the Tax Court in the same manner and to the same extent as it has power to review other cases--whether tax cases or nontax cases--coming from a District Court in a case tried without a jury.
It will be noted that the bill does not attempt to define what is a question of law or what is a question of fact, or to answer any of the other complicated questions which would be involved in spelling out de novo the complete scope of review. The distinction between questions of law and questions of fact is one well-established in the law, and one with which lawyers and judges have long been familiar. Without the necessity of here defining it or answering any of the other difficult questions involved in defining the scope of review, it will suffice to say that whatever the scope of review over cases--whether tax cases or nontax cases--coming from a District Court, the same scope of review should exist over cases coming from the Tax Court.
Mr. Hays. Mr. Speaker, I regret very much that the motion is to agree to the Senate amendments rather than to request a conference with the Senate. The House, by an overwhelming vote, approved the transfer of the Tax Court from the executive to the judicial branch of the Government. Our position is impregnable from the standpoint of logic and constitutional intent, yet because of certain incidents in the peculiar history of this splendid court, it is classified technically as an agency of the executive branch. No one can question the fact that it is a court legislatively established as prescribed by the Constitution. The amendment to which we are asked to agree defeats the action of the House in approving its transfer to the department where it logically belongs. Our concurrence with the Senate perpetuates one of the strangest anomalies in the Government. This is an ideal time to accomplish the transfer and I am keenly disappointed that it must be postponed. I recognize that the members of the House Judiciary Committee are reluctant to take any action that would jeopardize the passage of H.R. 3214 by insisting on the transfer of the Tax Court, and I must bow to their decision. I am confident, however, that steps will be taken to secure consideration of this transfer in separate measures, and I shall join the committee members in urging favorable action thereon when presented with the opportunity.
Mr. Speaker, let me again state my conviction that no court has a finer personnel or more distinguished record than the present Tax Court of the United States. Due recognition of this service should not be postponed indefinitely.
The Senate amendments were concurred in.
A motion to reconsider was laid on the table.
(Mr. Reed of Illinois asked and was given permission to extend his remarks in the Record and include a memorandum expressing the views of the Committee on the Judiciary with respect to certain of the Senate amendments.)