John Benkart & Sons Co. v. Pennsylvania Public Utility Commission , 137 Pa. Super. 5 ( 1939 )

While if I had been the fact finding tribunal in this proceeding I would have refused the application because the service applied for was not shown to be necessary for the accommodation and convenience of the public, I recognize, for the reasons so well expressed by Judge RHODES, that the decision of the matter was an administrative one which should not be disturbed unless it was so arbitrary and unreasonable as to amount to error of law; and therefore I concur in the opinion and judgment.

It developed, however, on the argument that in the proceedings leading up to its decision, the commission had designated an examiner to take testimony, under section 7 of the Act of March 31, 1937, P.L. 160¹; and the examiner, instead of confining himself to the duties committed to him by statute, to wit, administering oaths, examining witnesses and receiving evidence, filed a report, which did not become part of the record, and made recommendations which were adopted by the commission. This he was without legal authority to do, and I refer to the matter here in order that the practice — if such it has become — will be discontinued for the future. Whatever may be the custom in other jurisdictions, in this Commonwealth the function of an examiner to take testimony is limited to his statutory authority, and he is given no power to pass on facts developed or make decisions or recommendations with regard to them, unless specially authorized in the statute to do so. See the discussion by Mr. Justice DEAN on the province of Examiners in divorce in Middleton v.Middleton, 187 Pa. 612, 614, 615, 41 A. 291, before the passage of the Acts authorizing Masters in divorce to report their opinion of the case.

Public Utility Commissioners are important officers, appointed by the Governor, subject to confirmation by the senate. They are representatives of the legislature in important fact finding matters, and cannot be removed by the Governor at will: Com. exrel. Attorney General v. Benn, 284 Pa. 421, 131 A. 253. They perform, in some respects, quasi judicial duties and must take an official oath. Section 3 of the Act above mentioned disqualifiesmany persons from serving as a commissioner. It was never contemplated that their fact finding powers and duties, which are in some circumstances made final, should be shifted even provisionally to examiners appointed by them to relieve them of the drudgery of taking testimony. Dr. Roscoe Pound in his report as Chairman of the Special Committee on Administrative Law to the American Bar Association for 1938, in referring to the defects in Administrative Law against which safeguards are required, mentioned: "(2) A tendency to decide on the basis of matters not before the tribunal or on evidence not produced. A common form in which this tendency is manifested is to act on secret reports of inspectors and examiners."

I call the matter now to the attention of the Commission in order that there may be no further misconception of the duties to be performed by Examiners designated pursuant to the Act of 1937, supra.

¹ "In any investigation, inquiry or hearing, the commission may designate a special agent or examiner who shall have the power to administer oaths and examine witnesses and receive evidence in any locality which the commission . . . . . . may designate. . . . . ." Act of March 31, 1937, P.L. 160, sec. 7. "The commission may authorize the chairman . . . . . . (3) to assign cases to special agents or examiners for the taking and receiving of evidence". Ibid, sec. 8.