dence is relevant supporting the findings and whether the hearings have been carried out in accordance with law. The court will then, assuming the findings are in accordance with law determine whether the regulation, in the light of those findings, is reasonable, not arbitrary nor capracious, and also in accordance with the general grant of power in the law. If the court regards that regulation of one half inch in the light of these findings, which are sustained and supported by evidence, as reasonable, it will dismiss the bill or or injunction. On the other hand the court might very_possibly reach the conclusion that in the light of these findings the Secretary has been harsh, unjustifiably strict in imposing the half inch requirement in the light of these findings, and therefore the court would very properly set aside that regulation as unreasonable.

There is another possibility. Suppose that nobody seeks to enjoin the action of the Secretary, but later a package is found 1 inch from the top, filled only to 1 inch from the top. In that event, the defendant who is being prosecuted for failing to comply with the requirement could attack the validity of the regulation in the same fashion that it would in the event that he would have suit to restrain the Secretary from its enforcement.

In other words, the conclusiveness of the finding by no means concludes the validity of the regulation. The problem of the finding is one which in most cases under the bill requires an inquiring into scientific or trade practices. The facts will always be in dispute.

Senator HEBERT. There is just this point, will the facts still be in dispute in the trial of a case in court not withstanding this bill provides that the facts are conclusive?

Mr. CAVERS. Our hope is that the facts which go to sustain the regulation will not be in dispute in the court actions.

Senator HEBERT. Well, if that is so, then the defendant is going to be put at a decided disadvantage. I think you can readily see that that is so.

Mr. CAVERS. The defendant, it seems to me, is put under a disadvantage, but is it an improper disadvantage? In other words, is it not proper to enable the Government, through the process that I have described to resolve these doubts, assuming its action is reasonable?

Senator HEBERT. It is improper in this sense, in that it denies to a man his day in court. That is the thing that I have in mind. He ought not to have his property taken away from him, except after due process of law, and that means a trial in court, and to be passed upon by a jury of his peers. That is our form of government.

Mr. CAVERS. The practice of giving to an administrative agency, the determination of a question of fact, a conclusion of fact, is by no means uncommon under our government, Senator?

Senator HEBERT. No; but invariably there is a review of the fact in court.

Mr. CAVERS. When the court reviews an administration finding, it inquiries whether-may I read from an opinion?

Senator HEBERT. Yes; I am sorry to interrupt you. Perhaps I ought not to do so.

Mr. CAVERS. My argument was hastily constructed in the last day. I am reading now from a decision of the United States Supreme Court under the Interstate Commerce Act. It reads:

Whether a preference or advantage or discrimination is undue or unreasonable or unjust is one of those questions of fact which have been delegated by Congress to the judgment and discretion of the Commission, and upon which its decisions are made the basis of administrative orders operating in future

That is the way our regulations should operate.

are not to be disturbed by the courts, except upon a showing that they are unsupported by evidence, were made without a hearing exceeded constitutional limits, or for some other reason, amount to an abuse of power.

In other words, the court will follow in examining the rules and regulations of the Interstate Commerce Commission a procedure which seems to me that I have sought to outline in this argument before you, to give the technical body a chance to resolve doubts which undoubtedly exist. In other words, the purpose of a regulation is not to determine the fate of an individual, but to establish a rule which operates analogously to a rule of law.

It undoubtedly will enter a field concerning which there will always inevitably be debate, the matter of tolerances, evidence on the part of chemists and toxicologists, and the like, and the value to the public and to the industries is to have that doubt resolved so that instead of an uncertain standard in the law, we have a regulation which is specious.

Having provided adequate machinery for the determination in a considered, careful manner, then it seems to me that the doubt thus resolved should be regarded as closed, except if a court finds that in the process of resolving that doubt the administrative officer had failed to make reasonable investigation into the facts, or, having done so, has acted unreasonably.

A court is an institution which is best suited to determine the problem of reasonableness of one of these regulations or questions of their compliance with law, because the reasonableness of a regulation of this sort is one which calls for sound judgment, a sense of fairness and freedom from partiality. In other words, the question of the accuracy of the determination of a highly disputed matter. The scientific fact is one which, it seems to me, properly may be left to the administrative body.

The plight of the court in seeking to resolve one of these disputed problems of fact seems to me to be analagous to that which led the Supreme Court of Missouri to refuse to review an administrative determination that a degree from a certain medical school did not qualify its graduates for practice. The court said:

It would find itself wandering amid the mazes of therapeutics or boggling at the mysteries of the pharmacopoeia.

I sympathize with the plight of the court, having been wandering in that labyrinth myself.

From a practical standpoint, moreover, there is a very definite advantage in having questions of this sort determined so far as the determination is fairly done, and does give due consideration to the facts involved, and so long as the regulation is reasonable, because one of the functions of regulations of this sort is to establish a degree of certainty in a field of law, where uncertainty will otherwise exist. If we were to examine section 5 of the bill, we have two provisions there. Paragraph (a) declares as adulterated a cosmetic which contains any poisonous or deleterious substance in such

quantity as may render it injurious to health. Paragraph (b) provides that the Secretary in operation under section 22 establish tolerances for poisonous ingredients or prohibit certain of them.

Under section (a), obviously, we can never achieve any great degree of certainty in the law; from case to case there will be differences in results, and the industry will never know whether it is proceeding on sure grounds when it is using a certain amount of a poisonous substance-possibly necessary in that cosmetic—until at length it has fought the question through the courts.

On the other hand, if a tolerance is established for a certain percentage of that poison the industry will from that point know that it may with safety use that amount of poison. Or, let us say that a standard for a food is established, after that has been done any food complying with that standard is free from any possible charge of adulteration; or if a labeling requirement is established or filler container, the uncertainty as to what might constitute misleading in a container case, let us say, is removed. But, suppose, to take the example that you gave, Senator, the Secretary did, after a careful hearing, at which the industry had been represented, establish a standard of one-half inch from the top, and that was satisfactory, let us suppose to the great majority of the people in the industry, but there had been at the hearings and would be conflicts of testimony-and after the promulgation of that standard, we will say, 90 percent of the industry being satisfied, assuming that it was to exist in lieu of the general prohibition against misleading containers, would proceed to place their orders for containers and adopt that practice again.

Let us suppose that there was a dissenter in the group who persisted in filling to one-half inch or less, who later was prosecuted for that, the whole question would be opened up again in that trial under the view that I believe you desire to see adopted. The evidence would have to be brought in again, since the defendant would be bringing the case to challenge record. In the case of containers, possibly, the trade evidence would not be so difficult to gather. It would be more limited in scope. In the case of a tolerance or a poison or in the case of other problems involving difficult determination of scientific fact, you would have a long period of time in which these questions would be reopened and rediscussed, and eventually you would have the opinion, not of the jury, but of the judge, as to the desirability or the propriety of the regulation so established. Meanwhile the reliance which had been placed on that regulation over a period of time would have been upset, and you would have undoubtedly new labels in some instances-new packages in others.

The problem determining merely the reasonableness of the regulation, however, does not present that difficulty, since the court can then examine the record made already at the hearings, and on that occasion the industry will have had an ample opportunity to present its views.

Senator HEBERT. Then, what is the meaning of your statement that those regulations-the findings and facts shall be conclusive, if the facts can be upset in an appeal to a court-any court? Then, what is the meaning of the words "shall be conclusive"? That has been a question that was raised, and let me say that my answer

to that is that if it did not contemplate going into the facts, then the language in section 22 would not be there, providing that it be shown that it is unreasonable.

Mr. CAVERS. The question depended somewhat, or the answer to the question depends somewhat on going into the facts would entail. If it is permissible to open the question anew to permit the aggrieved parties to start introducing new evidence--and incidentally, the problem as to that is an acute one, in that at the hearing you do not have any adversary action, as you would if you were proceeding against an individual. It is a public gathering. Those that wish may introduce evidence. You cannot, therefore, compel a person to put in evidence in that action. He may prefer and consider it advisable to hold back until the question arises, when he might be aggrieved.

It seems to me, therefore, that the primary function of that last sentence would be to preclude the possibilities of reopening the question of fact to the extent that new evidence would be put before the court, on not the violation of the regulation by the defendant, but on the question of whether the Secretary had reached a proper conclusion.

Senator HEBERT. Doesn't that go then right back? Aren't we arguing in a circle now? Doesn't that go right back to whether the questions of fact are going to be taken up in the trial of a case or whether they are precluded because the findings are conclusive? Mr. CAVERS. I think the provision would operate to conclude to that extent.

Senator HEBERT. Now, let me cite an absurd illustration because that will probably bring what I have in mind a little more clearly to the attention of everybody. Let us assume that a governmental official finds that the distance between here and Baltimore is 50 miles, and that his findings after investigation are conclusive, and some railroad companies contest the right of that body to fix a rate of fare between here and Baltimore based upon that finding. Now, then, that is a finding and that is conclusive, and whether or not you are going to go into that in the trial of a case seeking an injunction against the governmental authority to enforce that regulation. is the point that has been brought out here repeatedly.

Mr. CAVERS. That situation would arise, I suppose, Senator, if I may continue in a case based on that regulation after a hearing at which the Government had introduced evidence which in the record indicated persuasively-substantial evidence to prove that that distance was 50 miles, and there was none of the evidence which would anticipated naturally to prove quite the contrary.

Senator HEBERT. But supposing there was evidence that it was 43 miles-which is perhaps nearer the exact distance-yet the Government official has found that it is 50, because there is evidence to show that it is 50. I am citing an absurd case now, but it is in order to bring out the real merits of the contention here. Can you follow me?

Mr. CAVERS. Yes, Senator; I believe I do. If we assume that evidence to that effect were in the record and that contravening evidence were not in the record, you would reach the unfortunate result that is suggested.

Senator HEBERT. No; but I am assuming that there is contravening evidence there, and in that case, under this bill the Secretary must enter his findings.

Mr. CAVERS. In other words, you assume that you have a split of evidence on the proposition?

Senator HEBERT. Exactly, and the Secretary must decide. Now, he decides that it is 50 miles and that is conclusive as to the facts. How far can you go in the determination of that? Can you reopen that wide when the case comes into court?

Mr. CAVERS. No; I should say not, Senator. However, if we might take a case which is a little less-the usual case, Senator, will be one in which there will be evidence the point will have been in dispute, it will be of interest to a number of them, they will have had opportunity to be heard, then they will, I think it safe to predict, to take advantage of that opportunity.

Senator HEBERT. There is seldom any trouble in the usual case. It is the unusual case that goes to court. Isn't that so?

Mr. CAVERS. I think that is as a generality true. I think in the case of regulations of this significance, you would have frequently resource to judicial review, but it seems to me that we may fairly assume that there will be-in the first place, there must be evidence in the record to support the Secretary, and if there is not such evidence, the court is at liberty to set aside the regulations.

Senator HEBERT. Well, I am assuming that there is now. Then what can the court do?

Mr. CAVERS. Then assuming that there is evidence on the other side, the court—and assuming again that the evidence is of such a nature as would be appropriate for the consideration of this question by the Secretary-the court would then pass to the examination of whether on the basis of that planning, the regulation is sound, reasonable, not arbitrary, capricious, but in accordance with law.

Senator HEBERT. That is the point. That has been the contention of many witnesses here, that the finding of fact in such a case is conclusive, whether the Secretary is right or whether he is wrong, whether you have a divergence of opinion in this hearing, which precedes the making of the regulation. My point is that under the provisions of section 22 questions of fact could be still inquired into, and that the conclusions reached by the Secretary were merely as to regulations and not as to the determination of the guilt of a person under the regulations, and therefore, in order to ascertain the guilt or innocence of the party brought into court, you must examine the facts. You tell me now that your construction of paragraph (h) is conclusive upon the court, and the court cannot inquire into those facts upon which that regulation is based.

Mr. CAVERS. Suppose, Senator, you had a situation where the Secretary acted under the power to prescribe a labeling requirement, a precautionary dosage in the case of a drug which might be dan gerous to the health, prosecution is brought under that regulation. The only inquiry as to the guilt of the defendant would be whether he had labeled or not labeled. There is no general requirement that to label in such fashion or give any precautionary labeling.

Senator HEBERT. I admit that in the ordinary case, there probably would be no difficulty, but if there were a review of the facts,