will be subject to judicial review (pursuant to sec. 10 of the Administrative Procedure Act). Of course, a mere reference of a case by an administrative agency to judicial authorities, without suspension of the right to practice meanwhile, would not require a hearing or be subject to such judicial review. For the exercise of these disciplinary powers it is provided that the Credentials Committee shall act in cases in which misconduct is unrelated to any agency proceeding and no interested agency undertakes to act in the case.

Operation and Effect

Sec. 8. Any person willfully violating any provision of this Act or rule lawfully issued hereunder, or knowingly submitting any false information required pursuant hereto, shall be fined not more than $5,000 or imprisoned for not more than one year, or both. No individual holding credentials under this Act and serving by appointment as an officer, employee, or consultant in any agency or branch of the Government of the United States shall act or receive compensation during such public service or within two years thereafter as an attorney, agent, or employee of other interests with respect to (1) any matter in which the United States is interested and he renders or has rendered such public service or (2) any matter factually related thereto; but in all other matters such an individual so appointed on a temporary (not to exceed two! years), intermittent, uncompensated, or part-time basis or for the purpose of particular litigation or agency proceedings may (if otherwise quali fied and unless limited by rule or written instruction of the appointing agency) during or after such public service so act or receive compensation. All statutory provisions, rules, or applications thereof in conflict with this Act are hereby repealed. No subsequent legislation shall be held to supersede or modify any provision or application of this Act except to the extent that such legislation shall do so expressly. If any provision of this Act or application thereof is held invalid, the remainder of this Act or other applications of such provision shall not be affected. The requirements of this Act respecting admissions to practice shall not take effect until six months after its approval.

The first sentence, fixing a penalty for violations, is self-explanatory. The same may be said of the last four sentences. The final sentence of the section defers the effective date of the admission requirements for 6 months after the approval of the bill, in order to afford time to place in operation the machinery provided in sections 3, 5, and 6 of the bill as set forth above.

The second sentence of the section deals with a subject respecting which there is now a multiplicity of conflicting and diverse statutory provisions. This provision seeks to write into law for the first time (so far as holders of credentials under this bill are concerned) the present canon of professional ethics that no practitioner shall engage in representing anyone in a matter (or matter factually related thereto) in which he is simultaneously concerned, or with which he previously dealt ("investigated or passed upon"), as a public servant (Canon

No. 36, see also sec. 4 above) except that the disability is limited to 2 years following termination of his public service. Secondly, the provision frees the holder of credentials (be he lawyer or nonlawyer) to undertake private representation in other matters if he is or has been a public servant on only a temporary, intermittent, uncompensated, or part-time basis or for particular litigation or agency proceedings unless at the time of his public service the agency concerned has provided otherwise by rule or written instruction. These modifications of existing law are desirable in order to provide a uniform rule respecting holders of credentials under this bill. Such persons will be subjected to the licensing controls provided by the bill. They will be permitted to serve their Government on occasion without unnecessary disabilities. It will thus, for example, be possible for a private practitioner to serve on the credentials committee as provided in section 3 of the bill.

All Except One of the Twelve I. C. C. Incumbent Hearing Examiners Originally Found Disqualified by the Civil Service Commission have Finally Been Approved by that Commission

As previously noted in this JOURNAL, ten of the twelve incumbent hearing examiners of the Interstate Commerce Commission, who were disqualified by the Civil Service Commission following a report of its Board of Consultants were later approved and found entitled to continue in these positions.

The cases of the remaining two hearing examiners were referred to the Board of Appeals and Review of the Civil Service Commission, for further consideration. On June 17, separate hearings were held by that Board in these two cases, and these examiners were supported by impressive testimony of members of the Interstate Commerce Commission, prominent members of its staff, the Vice-President and General Counsel of the Association of American Railroads, the Executive Secretary of the National Industrial Traffic League, lawyers representing important interests before that Commission on behalf of railroads, motor carriers, freight forwarders, and water carriers, and representatives of certain of the government departments having business before the Commission. Those appearing included two former Presidents of the Association of Interstate Commerce Commission Practitioners. Both examiners are war veterans, and a strong statement was made on their behalf by a representative of the Veterans of Foreign Wars.

The Board, however, declined to disclose information on which the two examiners have been found disqualified, and also declined to permit a stenographic record to be made of the hearings.

On August 24, 1949, the Civil Service Commission found as to one of the two examiners that he meets "the requirements for the position of hearing examiner" and is therefore "rated eligible for this position."

In spite of the overwhelming showing made on behalf of the other examiner at the hearing on June 17, approximately three months ago, the Civil Service Commission has reached no decision in his case.

Much dissatisfaction has been expressed concerning the failure of the Civil Service Commission to remedy this grave injustice. It is to be remembered that the Association filed a vigorous resolution with Congress urging an investigation of the action of that Commission in disqualifying the twelve I. C. C. incumbent hearing examiners. As a result of this resolution, and representations made on behalf of disqualified examiners in other agencies, Senator Johnston, of South Carolina, Chairman of the Senate Committee on Post Office and Civil Service, introduced the following resolution on July 28, 1949 (S. Res. 143):

"Resolved, That the Committee on Post Office and Civil Service, or any duly authorized subcommittee thereof, is authorized and directed to make a full and complete study and investigation with respect to activities of the Civil Service Commission in determining qualifications for appointment of examiners under section 11 of the Administrative Procedure Act, including the activities of any advisory committee appointed by the Commission pursuant to such section. The committee shall report to the Senate at the earliest practicable date the results of its study and investigation together with such recommendations as it may deem desirable."

In the meantime, serious criticism has been made with respect to the procedure followed by the Civil Service Commission as to its eligible register for the appointment of hearing examiners, and it is reported that Senator Johnston's committee plans a somewhat broader inquiry which will include this subject. The recruitment of new hearing examiners at the Interstate Commerce Commission is, of course, a matter of vital concern, and it is important that procedures be followed which will result in the selection of competent and qualified men for the work of this Commission. The Civil Service Commission seems to be imbued with the thought that the prime consideration in choosing an examiner for the Interstate Commerce Commission is whether or not he can conduct a hearing. The practitioners know that the far more important task of an examiner is that of competently analyzing the evidence and writing a sound report based on such evidence and following principles established by the Commission and the Courts.

Unrestricted Access to Markets:
Aspects of Absorption of Freight Charges

By WILLIAM T. FARICY,

President, Association of American Railroads 1

*

Here in the United States we Americans enjoy such abundance as the world has never known before, and knows nowhere else today. Americans produce more and live better than any other people on earth. Why?

One common explanation is the size of the country-but there are other countries even larger. Another common explanation is the rich resources of the continent-but other continents enjoy resources equally rich, and even this continent, which now sustains nearly 150 million people in a high degree of comfort, at one time could provide no more than the barest sustenance for perhaps half a million aboriginal inhabitants.

Still a third reason offered is our numerous, ingenious and industrious population-but other nations have populations as numerous, perhaps as ingenious and certainly as industrious. No, there must be still another reason for the difference in productive capacity and in the plenty we enjoy.

And there is such a reason. First, foremost and fundamentally, the difference is in the political institutions which were devised and bequeathed to us by our forefathers. The unique thing about these institutions is the extent and degree to which they provide freedom. They do not provide merely a freedom to endeavor to be wise and good-all governments presumably do that-but freedom to try ventures, to make mistakes, perhaps to fail—but if to fail, then to have the chance to try again.

But not even this unique degree of freedom would be enough to produce such results as we see all about us in our magnificent country. To produce such results, America had to be not only free, but also had to have the transportation which made it truly united.

So, to its unique freedom, America added a unique concept of transportation. Transportation by rail, on the highways, in the air, on the waterways and under the earth in the form of pipelines-all these are

*Reprinted by permission. American Bar Association Journal, August, 1949,

pp. 645-47.

1 Since the decision of Federal Trade Commission v. Cement Institute, 333 U. S. 683 (1948), the problem of absorption of freight charges by producers has been the subject of wide discussion and controversy. In this article, Mr. Faricy, a member of the Illinois, California, Minnesota Bars, and a charter member of the Association of I. C. C. Practitioners, treats the question from the broad viewpoint of the function of the freight absorption system in our national economy. He points out that the prosperity of the United States is the result of unrestricted access to markets and to sources of raw materials, and urges retention of the freight absorption system as a necessary part of that condition.