In the discussion of the bill it was believed that the bill should be amended so as to limit it to the Navy and Marine Corps. Accordingly, the following amendment appears to me to be proper:

Strike out all following the enacting clause and substitute the following:

That section 8 of the Act of June 6, 1924 (43 Stat. 472, U. S. C., title 10, sec. 981, and title 34, sec. 999) as amended by the Act of June 24, 1936, is further amended by adding at the end thereof the following:

"and provided further, That individuals heretofore or hereafter retired pursuant to laws pertaining to enlisted men, who were or/are members of the Fleet Naval Reserve at the time of retirement shall be considered as members of the Regular Navy under the provisions of this Act; and provided further this Act shall take effect on the first of the month following the date of the enactment of this Act."

Since this measure properly should be referred to the Senate Naval Committee for consideration, I have not come to any conclusions as to the merits of the bill.

I suggest, however, that the hearings and all correspondence relating to this bill together with a copy of this report be reported to the Senate for recommitment to the Senate Naval Affairs Committee. EDWIN C. JOHNSON,

76TH CONGRESS 3d Session

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SENATE

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REPORT No. 1386

AMENDING THE PERISHABLE AGRICULTURAL
COMMODITIES ACT, 1930, AS AMENDED

APRIL 8, 1940.-Ordered to be printed

Mr. HATCH, from the Committee on Agriculture and Forestry, submitted the following

REPORT

[To accompany S. 3661]

The Committee on Agriculture and Forestry, to whom was referred the bill (S. 3661) to amend the Perishable Agricultural Commodities Act, 1930, as amended, and for other purposes, having considered the same, report thereon favorably with a recommendation that the bill do pass without amendment.

The action of your committee was based in large part upon a report made on the bill by the Department of Agriculture, which is printed below in full, as follows:

DEPARTMENT OF AGRICULTURE,

March 23, 1940.

The VICE PRESIDENT THE UNITED STATES SENATE. DEAR MR. VICE PRESIDENT: There are submitted herewith two copies of a proposed bill to amend section 7 (c) of the Perishable Agricultural Commodities Act, 1930, as amended (U. S. C., title 7, sec. 499g (c)). This bill is submitted with the hope that it may be given favorable consideration at the earliest possible moment, as the Circuit Court of Appeals for the Eighth Circuit has rendered a decision which has disrupted the efficient administration and enforcement of the

act.

Under section 6 (c) of the act, the Secretary of Agriculture is authorized to consider complaints and issue orders without an oral hearing where the amount involved does not exceed $500. A majority of the complaints for reparation are for less than $500 and are handled under this provision, which was included in the act in 1934. At that time, it was not considered necessary to make any special provision for appeals in such cases, it being felt that this point was covered by section 7 (c) of the act, which authorizes appeals from orders of the Secretary to the district courts of the United States for the districts in which hearings are held. The Department was of the opinion that, in cases handled without an oral hearing, in accordance with section 6 (c), an appeal would lie to the district court for the district in which the party complained against was located. It always has been the view of the Department that parties should not receive different legal treatment because the amount involved in an action is less or exceeds $500 and that the venue of appeals in such cases should be the same as in those cases in which oral hearings have been held. Apparently, this view was adopted by many of the Federal courts, for they entertained appeals from orders of the Secretary

issued in cases where no oral hearing had been held. Evidently, Congress intended to avoid all possible misunderstanding on this point, because, when the act was amended in 1936, i. included in section 7 (c) a provision designed to clear up all misapprehension in this matter.

In 1937, when section 7 (c) of the act was again amended by Congress, this provision appears to have been inadvertently omitted. The belief that Congress did not intend to repeal the amendment of 1936 by the amendatory act of 1937 seems to be clearly supported by the report of the Committees on Agriculture of the Senate and House of Representatives. The report of the Committee on Agriculture of the House of Representatives stated that changes in existing law made by the bill were shown in compliance with paragraph 2 (a) of rule XIII; that "existing law proposed to be omitted is enclosed in black brackets; new matter is printed in italics; existing law in which no change is proposed is shown in roman.' Section 7 (c) was given in the report in roman except for certain new language shown in italics. Since that portion of the section containing the provision under discussion was printed in roman and since the provision itself was not printed and enclosed in black brackets, it seems clear that it was not the intent that it should be repealed. For this reason, and because the Department appreciated the importance of treating all parties involved under reparation orders equitably in accordance with sound legal policy, it has followed the policy of recognizing through regulation the legal rights of parties affected by reparations in the amount of less than $500.

Recently, however, an appeal was taken from an order of the Secretary of Agriculture to the United States District Court for the Western District of Arkansas. The case, when it was before the Secretary, was handled without an oral hearing in accordance with section 6 (c) of the act. The party against whom the order was issued appealed therefrom to the United States district court for the district in which he is located. The district court dismissed the proceeding for want of jurisdiction because no hearing had been held in that district. An appeal was then taken to the Circuit Court of Appeals for the Eighth Circuit and that court, in the case of Crivella v. Rouw (105 F. (2d) 434 (1939)), affirmed the decision of the lower court and said:

"Since Congress has not specifically granted to the Federal courts power to try and determine appeals from the orders of the Secretary of Agriculture made pursuant to the provisions of the Agricultural Commodities Act, 1930, in cases where the amount of the award is less than $500 the district court did not err in entering judgment dismissing the appeal."

Under the decision of the court, grave doubt is cast upon the validity of section 6 (c) of the act, which authorizes the disposition of cases without oral hearings, because the parties adversely affected by the entry of reparation awards in such cases have no right of appeal.

This decision of the circuit court of appeals was brought before the Supreme Court of the United States on a writ of certiorari. The matter was presented on briefs during the latter part of January, but so far no decision has been handed down. If the Supreme Court should sustain the decision of the circuit court, or if its decision should be postponed more or less indefinitely, the administration of the Perishable Agricultural Commodities Act would be beset with many difficulties. At the present time, there are pending more than 100 cases involving amounts of less than $500. Unless the present situation is relieved in some manner, it will be necessary for the Department to take such steps as are necessary to afford the parties in these cases an opportunity for oral hearing. If it becomes necessary to hold oral hearings in the pending cases and in all cases arising in the future, where the amount involved is less than $500, the cost of the administration and enforcement of the act will be greatly increased. Should the Supreme Court reverse the decisions of the lower courts, the effect of this amendment would simply be to write into the law language which such a decision on the part of the Court would indicate properly belongs there.

All that the amendment proposes to accomplish is to restore in section 7 (c) the provision permitting judicial review for the cases handled without oral hearings.

Pursuant to the requirement of Budget Bureau Circular 344, this matter was referred to the Bureau of the Budget, and under date of March 14, 1940, the Assistant Director thereof reported that there would be no objection on the part of that office to the submission of this proposed legislation to Congress.

Sincerely,

76TH CONGRESS 3d Session

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SENATE

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REPORT No. 1387

TEACHER OF MUSIC, THE LEADER OF THE MILITARY ACADEMY BAND, PROMOTION OF

APRIL 8, 1940.-Ordered to be printed

Mr. CHANDLER, from the Committee on Military Affairs, submitted the following

REPORT

[To accompany S. 3575]

The Committee on Military Affairs, to whom was referred the bill (S. 3575) to make better provision for the teacher of music, the leader of the Military Academy Band, having considered the same, report favorably thereon with the recommendation that it do pass.

The purpose of this measure is to give the rank of captain, United States Army, to the teacher of music, the leader of the Military Academy Band; to entitle him to receive the pay and allowances of an officer in the third pay period; to retirement, and to extend pension and other benefits to his dependents.

The present law and the proposed change relating to the teacher of music are as follows:

EXISTING LAW (10 U. s. C. 1140) The teacher of music shall receive the pay and have the rank of a first lieutenant, not mounted; and the said teacher of music shall be entitled to the same benefits in respect to pay, emoluments, and retirement arising from longevity and length of service as are, or may hereafter become, applicable to other officers of the Army.

PROPOSED CHANGE

That from and after the date of approval of this Act the teacher of music, the leader of the Military Academy Band, shall have the rank of captain of the United States Army and shall be entitled to receive the pay and allowances of an officer in the third pay period: Provided, That in the computation of the pay and allowances of such teacher of music all active service in the Army, including service as teacher of music, shall be counted as if it were commissioned service: Provided further, That the said leader of the Military Academy Band shall, at such time as the President in his discretion may direct, be retired as a teacher of music with the rank of captain, and when so retired, shall be entitled to receive the

EXISTING LAW (10 U. S. C. 1140)-con.

PROPOSED CHANGE-Continued

same retirement pay as is now or may hereafter be provided by law or regulation for an officer of the Army in the third pay period with length of service computed as stated above: And provided further, That the dependents of said teacher of music shall be entitled to the same pensions, death gratuity, and other benefits as are now or may hereafter be provided for an officer of the Regular Army in the third pay period with the corresponding length of service.

As to addition cost the War Department says:

The approximate cost of this legislation, including pay and subsistence allowances, as applied to the present teacher of music, would be at the rate of $1,068 per annum for the fiscal year 1941. In future years it would vary both below and above this figure, reaching a maximum of $1,160 for the fiscal year of 1943, after which it would decrease to $360 in 1957. The average annual cost as applied to the present incumbent for the fiscal years 1941-57, inclusive, would be approximately $707.

Lt. Francis E. Resta now fills the position of teacher of music and leader of the Military Academy Band. He was chosen to fill this position because of his superior record as a warrant officer, band leader, and by reason of his knowledge of music. His pay and allowances today are $211 per month, and had he remained a warrant officer his pay and allowances would have been $203. By accepting this position he has been penalized financially because of the expense involved in maintaining his position.

The leaders of the Army Band, the United States Navy Band, the band of the United States Marine Corps, and the Naval Academy Band have rank corresponding to that of captain in the Army. It is only fair and just that the leader of the Military Academy Band should be accorded the same rank, pay and other emoluments. War Department letter reporting on the bill follows:

Hon. MORRIS SHEPPARD,

Chairman, Committee on Military Affairs,

WAR DEPARTMENT, Washington, January 30, 1940.

United States Senate.

DEAR SENATOR SHEPPARD: There is inclosed the draft of a bill to make better provision for the teacher of music, the leader of the Military Academy Band, which the War Department presents for the consideration of the Congress with a view to its enactment into law.

The present law relating to the teacher of music reads as follows:

"The teacher of music shall receive the pay and have the rank of a first lieutenant, not mounted; and the said teacher of music shall be entitled to the same benefits in respect to pay, emoluments, and retirement arising from longevity and length of service as are, or may hereafter become, applicable to other officers of the Army (U. S. C. 10:1140)."

The present teacher of music and leader of the Military Academy Band is Lt. Francis E. Resta. He enlisted in the Army December 15, 1917, was promoted to warrant officer (band leader) March 7, 1921, and was made teacher of music at the United States Military Academy October 11, 1934. Under present law Lieutenant Resta is entitled to longevity credit for pay purposes for service only since October 11, 1934, with no credit for the 16 years 9 months and 26 days served as a warrant officer and enlisted man.

Lieutenant Resta was chosen to fill the position of teacher of music because of his superior record as a warrant officer, band leader, and because of his excellent knowledge of music. At the present time his pay and allowances are $211 per month, whereas had he remained a warrant officer his pay and allowances would