Mr. MACDONALD. Mr. Springer asked you, Mr. Wilhite, if that is October, 1968? Mr. WILHITE. Yes, sir; that is correct. Mr. MACDONALD. Just to clear the record up, it can be included at this point in the record without objection. (The document referred to follows:) OCTOBER 24, 1968 MEMORANDUM TO CHIEF HEARING EXAMINER CHESELDINE Pursuant to your request attached hereto is a detail account of my itinerary from October 6 through October 19, while conducting hearings in Finance Docket No. 25230 Chicago Burlington & Quincy Railroad Company Discontinuance of Trains Nos. 42 and 43. Between Omaha, Nebr., and Billings, Mont. W. WALLACE WILHITE. ITINERARY OCTOBER 6-19, 1968 Sunday, Oct. 6 Departed Washington, D.C. 11:30 AM via United Airlines (arriving Omaha, Nebr., 6:00 P.M., having dinner on the plane. Stayed at Sheraton Fontenelle. Monday, Oct. 7 Ate breakfast and dinner alone. Had lunch with the reporter R. V. Hinds. Tuesday, Oct. 8 Ate breakfast alone. Had lunch with John J. Burchall, a long time friend, and dinner at his home. During off record discussions at Omaha the Examiner was invited by rail counsel, State officials, and railway union representatives to ride with them between points of the hearings and thereby avoid the rental of an automobile by the Examiner. Automobile travel was the only possible means of travel because of the lack of other transportation suitable between the several points along the route. Wednesday, Oct. 9 Ate breakfast, lunch, and dinner alone. Departed Omaha at 4:30 PM, riding with John C. Street, general attorney for CB&Q and A. L. Hanson, Assistant Manager Mail, Baggie & Express CB&Q arriving Lincoln, Nebr., 6:00 PM Stayed at Quality Court Motel. Thursday, Oct. 10 Ate breakfast and lunch with reporter Hinds. Departed Lincoln at 1:00 PM riding with Messrs. Street and Hanson, arriving Grand Island, Nebr., 4:00 PM. Stayed at Holiday Downtown Motel. Ate dinner with Mr. Hanson at the motel and I paid for my meal. Friday, Oct. 11 Ate breakfast alone and lunch with reporter Hinds. Ate dinner with Messrs. Street, Hanson, Carl Plagemann General Passer Agent CB&Q, E. L. Phillips Division Superintendent CB&Q, and one other railman whose name I don't remember, and reporter Hinds. Prior to dinner I purchased a round of cocktails. One of the railmen picked up the dinner check. Saturday, Oct. 12 Departed Grand Island 6:30 AM riding with Messrs. Street and Hanson, arriving Broken Bow, Nebr., 8:30 AM. Ate lunch with 4 or 5 railmen and reporter Hinds who paid for all the lunches. I was invited by one of the 8 union representatives appearing before me (whose name I later found was Mr. McCoy) to ride with him from Broken Bow to Alliance. Nebr. However, I realized a misunderstanding had occurred when I was told by another union representative, whose name I can supply upon receipt of the transcript, and who I thought had invited me, that he was not going to Alliance but was going home to North Platte, Nebr. Departed Broken Bow 2:00 PM riding with Messrs. Phillips and Plagemann, arriving Alliance 5:30 PM. Stayed at the Drake Hotel. Ate dinner with Messrs. Street, Hanson, Plagemann, one other railman whose name I don't recall, and Homer Hamilton Assistant Attorney General of Nebraska representing the State of Nebraska, a protestant. My dinner consisted of a bowl of soup which was paid for by the railroad. Sunday, Oct. 13 Ate breakfast with Mr. Hamilton. Had lunch alone. Ate dinner with Messrs. Street, Hanson, Plagemann, a railman whose name I don't recall, Hamilton, and McNeil, a union representative, and his wife. The group had cocktails in the hotel room. I paid for all the dinners. Monday, Oct. 14 Ate breakfast with Union representative McCoy. Ate lunch and dinner alone. Tuesday, Oct. 15 Departed Alliance 5:30 AM, riding with Messrs. Street and Hanson, arriving Edgemont, S.C., 8:30 AM. Ate breakfast which I purchased. Not feeling well I had no lunch. Departed Edgemont 2:30 PM riding with Messrs. Street and Hanson, arriving Newcastle, Wyo., 5:30 PM. Stayed at the Buckaroo Motel. Ate dinner with Messrs. Street, Hanson, Plagemann, Phillips, and one other railman whose name I don't recall, reporter Hinds, and Sweem, a union representative. The railroad paid for all meals, including pre-dinner cocktails. Wednesday, Oct. 16 Ate breakfast alone. Ate lunch with Mr. Donald M. Empfield, Assistant Attorney General of Wyoming representing the State of Wyoming, a protestant. Cannot recall whether he or I purchased lunch. Departed Newcastle 2:00 PM, riding with Mr. Empfield, arriving Sheridan, Wyo., 5:30 PM. Stayed at the X-L Motel. Ate dinner with Messrs. Street, Hanson, Plagemann, two other railmen whose names I don't recall, reporter Hinds, Empfield, and Brorthick an administrative assistant to U.S. Senator Clifford P. Hansen of Wyoming and who had previously testified in opposition to the discontinuance of trains. Prior to dinner I purchased a round of cocktails. The dinner check for all parties was picked up by one of the railmen. Thursday, Oct. 17 Ate breakfast alone. Ate lunch with Mr. Empfield and reporter Hinds. Mr. Empfield paid for the lunches. Departed Sheridan 4:00 PM, riding with Mr. Empfield, arriving Billings, Mont., 7:00 PM. Stayed at Northern Hotel. Ate dinner alone and later joined by I.C.C. Hearing Examiner John Dodge. Friday, Oct. 18 Ate breakfast and dinner with Examiner Dodge. Ate lunch alone. Saturday Oct. 19 Ate breakfast with Examiner Dodge. Departed Billings 1:30 PM, via Northwest Airlines, arriving Washington, D.C. 9:00 PM. Mr. LISHMAN. Were you ever formally interviewed concerning the allegations about your fraternization with the regulated industry? Mr. WILHITE. Ever before? Mr. LISHMAN. Formally. Were you called up to a formal investigation before the Commission aside from submitting this statement? Mr. WILHITE. This is the only interview I had, with Mr. Cheseldine. I think Mr. Stillwell was present, along with Mr. Schutrumpf and Mr. Ries, assistant chief hearing examiners. This is the only interview that I had. It is the only thing that I reported other than one other matter. Mr. LISHMAN. Were you ever reprimanded or disciplined in any way as a result of these charges? Mr. WILHITE. No, sir. Mr. LISHMAN. Mr. Wilhite, in a train-off case do you think it is important to determine whether mail revenue losses claimed on the trains in question were in fact not fully lost but were then retained by the railroad on freight trains? Mr. WILHITE. I think so; yes, sir. Mr. LISHMAN. Is this not a matter which should be determined dur ing any hearing? Mr. WILHITE. It is a factor, yes; and I think it is important. Mr. WILHITE. No, sir; because they were still hauling mail in that case, at least on part of the route. Mr. LISHMAN. On the part that was discontinued they obviously were not. Mr. WILHITE. It seems to me they did have some mail in one or two cars between-I believe it was Omaha and Alliance. I think here they did away with the post office car, but not the bulk mail car. Mr. LISHMAN. When receiving a train-off case, do you determine whether the train in service was the subject of a previous investigation by the Commission? Mr. WILHITE. Well, I usually know that; yes, sir. Mr. LISHMAN. Did you know that in the Burlington case that you were handling? Mr. WILHITE. I knew that there had been a prior case which involved about half the route. This involved the whole route. Mr. LISHMAN. What had been the result in that previous investigation? Mr. WILHITE. The previous investigation involved the train between Alliance and Billings, and the Commission ordered that train, that part of the train, to stay on. Mr. LISHMAN. To stay on? Mr. WILHITE. Yes, sir. Mr. LISHMAN. I know you are familiar with the fact that there is a witness now dead, who had been a conductor for 40 years or more, I guess, on a passenger train, who had testified in the first Burlington case where the continuance was ordered, and when he attempted to testify before you in the second go-round, objection was made to his testimony by the railroad counsel, and you sustained that objection. Do you recall that? Mr. WILHITE. I know who you are talking about. I never knew of the gentleman until the day he appeared at the hearing. Mr. LISHMAN. Is it a fact that he was going to testify concerning the deliberate downgrading of the service on that particular train? Isn't that what he offered to testify to? Mr. WILHITE. At this point, I can't recall his statement that he submitted. It was several pages long, and I read enough of it to see that it was not admissible, according to the rules, if somebody objected. Mr. LISHMAN. You took the statement of the Governor of the State, the statement of a Senator read by his administrative assistant, which were obviously full of hearsay and other kinds of statements, and yet you would not take the testimony of a former conductor on this railroad? Mr. WILHITE. Well, I don't think there is any hearing examiner in the Government that would refuse a Governor of a State to testify or to make a statement nor any hearing examiner in the Government that would bar a Congressman or a Senator of the United States to make a statement if he so desired. Mr. LISHMAN. Don't you think that the hearsay rule should apply across the board? Mr. WILHITE. Well, it is my experience that the Congressmen and the Senators, from my experience, including a Governor, several Governors, in the form of a statement is not really considered the same as sworn testimony, although I assume the Commission gives it plenty of weight. Mr. LISHMAN. I have no further questions with the witness. This testimony will be connected up with the testimony of subsequent witnesses. Mr. MACDONALD. Thank you, Mr. Counsel. I just have one question and perhaps it is not terribly pertinent, but I can understand very well and sympathize with you in accepting the testimony of a Governor or that of a Senator or a Member of the House of Representatives. but I don't think your answer was really responsive as to why you did not take the testimony of the conductor, whom I am sure knew much more about the situation locally than either of the other witnesses. Mr. SPRINGER. Mr. Chairman, could I ask a clarification on one thing? It was my understanding Mr. MACDONALD. Of course you can, Mr. Springer, but I would like to have him answer, and you can pursue the matter. It is the only question I have. Mr. WILHITE. The statement of the gentleman he was talking about, he wanted to offer it in evidence, and before any statement is received, it is examined by all parties, and it was going to be under oath. Mr. MACDONALD. It was what? Mr. WILHITE. He was going to be sworn and do it under oath and after looking through it and the attorney objecting to it on several grounds, I had no choice but to sustain the objection and the Commission in their decision discusses that at length and also sustained me. Mr. MACDONALD. Did he appear in person and ask to testify? Mr. WILHITE. He was represented by the assistant attorney general of Nebraska, and his name was Mr. Hamilton, and he called this man, this gentleman, as a witness. Mr. MACDONALD. And you would not let him testify? Mr. WILHITE. When the statement was circulated, I suggested to counsel that there were some things about it, after the railroad objected, that there were certain things about it that were objectionable, that he should take some time with his counsel and let his counsel advise him as to what parts were authentic, and/or receivable, and what should be rejected, and he never came back. Mr. MACDONALD. Did you accept none of the testimony, or rule it out, or sort of plead nolo?" Mr. WILHITE. After that, he never appeared to testify. Mr. SPRINGER. I know there are some who are not lawyers, and I wanted to be sure we got this clarification right. Whenever there is a statement issued, and then it does not make any difference whether it is a Governor or the poorest person in the world, if there is a statement and it is not admissible, it is not admissible, is that right? Mr. WILHITE. If it is under oath, you have to go by the rules of evidence. Mr. SPRINGER. What I am saying is that any statement handed. up to you to be entered into the record in that form is hearsay? Mr. WILHITE. Anything that is not sworn to. Mr. SPRINGER. The Governor's is hearsay and the Senator's is hearsay, but the difference between these is that the Senator's and the Governor's were not objected to, and, therefore, were admissible. In the other instance, there was an objection and, therefore, you could not accept it. Isn't that the legal problem involved? Mr. WILHITE. That is true. Mr. SPRINGER. I wanted to be sure there was no misunderstanding on this. If there had been an objection on the Senator's or Congressman's, you would have had to sustain the objection, wouldn't you? Mr. WILHITE. Yes, sir. Mr. SPRINGER. We wanted to know the differences. Mr. MACDONALD. Are you making book on that? Mr. SPRINGER. I am willing to put my legal reputation on the line. Mr. MACDONALD. I agree you are correct, but I am not sure a hearing examiner would follow that interpretation. Mr. SPRINGER. Just to clear this all up, Mr. Chairman, if the man had said, then, that he wanted to, or was willing to testify under oath, you certainly would have allowed him to testify, if he agreed to take the oath and testify. He is a witness and you would have to accept him. Isn't that correct? Mr. WILHITE. Yes, sir. Mr. SPRINGER. But he did not offer to do that? Mr. WILHITE. Yes, sir. Mr. SPRINGER. I just wanted to be sure you were being fair with the witness. Mr. MACDONALD. We always try to be. Mr. Moss? Mr. Moss. No questions. Mr. MACDONALD. Mr. Van Deerlin? Mr. VAN DEERLIN. The case referred to, involving the Western Pacific Railroad in 1966, which was some 3 years after you had represented the association of which they are a member, appears to have been one of the cases in which the petition was denied, so that on the record, at least, you apparently did not go out of your way to give them any breaks as a result thereof. Mr. WILHITE. No, sir. Mr. VAN DEERLIN. I was wondering, as counsel was, about the need or propriety to put you in as an examiner sitting in judgment in a case involving one of your former retainers. How many hearing examiners are there in the ICC? Mr. WILHITE. I think there are something like 85 or 90 now. There will be less, I guess, because there are quite a few retiring. Mr. VAN DEERLIN. Would it be your judgment that most of them have former railroad connections? Mr. WILHITE. No; there are very few. There may be some, just as there are some who have former motor carrier, truckline, connections. Mr. VAN DEERLIN. How many of those would be involved in matters in assignments to matters involving railroads? |