Mr. WILHITE. If the rotation system followed, all would be.

Mr. VAN DEERLIN. Was it a matter of simple rotation that you were assigned to this case?

Mr. WILHITE. No. At that time we were in the Bureau of Finance. There were some 30 examiners, including myself, that dealt with nothing but financial matters, and train cases were among those matters, so there were only some 30 that were involved in that, and I think out of those 30 there must have been 10 or 12 that had those types of cases, and then, later on, the hearing examiners were all put in one organization and were now subject to hear any and all types of cases, where we used to be confined to one type of case.

Mr. VAN DEERLIN. You have testified that the superior who assigned you to that Western Pacific case is now deceased, so of course we can't question him, but did he, as well as you can remember, did he make the point that you were somehow the only man available to handle that? Mr. WILHITE. No, I think as I recall the case was offered to another examiner, and that examiner was not available, or was too busy, had too much to do, and he called me and asked me if I would like a trip and I said, "I would sure like to go back to San Francisco, but you must remember that that company once was a member of the railroad association."

That company paid their percentage of my salary, which was maybe 8 percent of the total.

Mr. VAN DEERLIN. Are there instances-I suppose that you would be familiar with the general practice are there instances in which hearing examiners are assigned to cases involving companies with whom they have actually worked directly?

Mr. WILHITE. I doubt that. I don't know of any, but Mr. Lyle indicated-You were on salary with the railroad, they were members of the association, you represented them along with others, I don't see any conflict of interest, go ahead and take it. And I did.

Mr. VAN DEERLIN. I don't envy you going up to Wyoming and living it up at the Buckaroo Motel, but it seems to me to call for further inquiry if hearing examiners regularly and without any question as to propriety are assigned to cases involving companies for whom they have had either recently or in the more distant past a direct employeremployee relationship.

Mr. WILHITE. I was never employed by the railroad here.

Mr. Van DeERLIN. No. I am thinking back to the Western Pacific case in which the record shows

Mr. WILHITE. The fact I was there made no difference. The train was kept on for another year, was tried again and was kept on a second year, and now is in court again.

Mr. MACDONALD. Before I recognize Mr. Pickle, before this escapes me, in your answers to inquiries made by Congressman Springer, you indicated that the former conductor here was not sworn but

Mr. WILHITE. He was sworn.

Mr. MACDONALD. This document handed me, and I am sure you have a copy of it, the record indicates that Mr. Richard D. Rowbotham was sworn and testified as follows.

Mr. WILHITE. He was sworn; yes.

Mr. MACDONALD. That does not jibe with what you responded to Mr. Springer.

Mr. WILHITE. Then I misunderstood Mr. Springer, because he was sworn, and after he was sworn and identified he came along through his counsel with this statement, which eventually was rejected by the Commission.

Mr. MACDONALD. Mr. Springer is a very good lawyer and a former district attorney from Illinois, who knows the law very well, perhaps better than I do. But having been sworn, why wouldn't you listen to the testimony?

Mr. WILHITE. His testimony was in the form of a statement.
Mr. MACDONALD. He was still sworn to statement.

Mr. WILHITE. But the statement was circulated, the statement was circulated and I examined it and counsel for the railroad examined it, and it was indicated that there were certain parts in it that were objectionable, and I suggested to the gentleman's attorney that the two of them take a recess and the two of them would examine the statement and see if they could not agree as to what parts were admissible and what parts were not admissible to save time and to have a proper record.

And the recess was taken, the gentleman never came back to the stand after that.

Mr. MACDONALD. On this it says, "witness excused."

I guess I am incorrect about that. That is about the previous witness. But the record indicates on page 519 of the record, and I take it this is the record of the hearing, it says Mr. Richard Rowbotham was sworn and testified as follows.

Why would you just pick on him?

The others were sworn.

Mr. WILHITE. I am not clear on that, sir.

Mr. MACDONALD. You are not clear on why you did it, or my question?

Mr. WILHITE. Your question.

Mr. MACDONALD. Mr. Springer said the highest and the lowest should be treated alike in a Federal proceeding. They were all sworn, as I understand it, and I am no expert on this, and I have not gone through the record as closely as perhaps I should have.

I understand the practical thing, a Governor is not a retired conductor, but under our system, and certainly under your jurisdiction, all people should be treated alike.

If the Governor was permitted to put in hearsay, why wasn't the railroad conductor permitted to put it in?

Mr. SPRINGER. Would you yield?

Mr. MACDONALD. Not at this point, Mr. Springer.

Mr. WILHITE. The gentleman was sworn. He had a prepared statement. It had been circulated, everybody knew what was in it. He was sworn, he read the statement, the rail counsel made no objections, and had no cross-examination.

Now it is not up to me or any hearing examiner to reject testimony under those circumstances.

Mr. SPRINGER. What the examiner is doing is perfectly what any judge would do, and a member of the U.S. Supreme Court would do. There is nothing else he can do under the circumstances, under the rules of evidence in any State in the Union and in the Federal courts.

I think I brought it out, if there had been an objection to the introduction of the statement alone and standing by itself you would have had to reject them if there was an objection.

If it was a Governor or Congressman or anybody else, it was hearsay. Mr. WILHITE. That is correct.

Mr. SPRINGER. The other one was inadmissible under any circumstances, and there was an objection, so you had to sustain it, just as you would have had to sustain on the Governor's statement if there had been an objection, is that right?

Mr. WILHITE. That is correct.

Mr. SPRINGER. There was an objection in one case and not in the other. A hearing examiner or judge only sustains an objection if it is raised. If a lawyer does not raise an objection, it goes in.

Now what this man could have done, and counsel was not very smart in my opinion, was to put the man on the stand and have him read the statement and then it would have been admissible, because he then would have sworn to all the things he said in there.

Mr. WILHITE. I think the best thing to do, or any other attorney in that position, would be to have the statement marked as an exhibit, and then it becomes a part of the file, and he can offer the statement as an exhibit, and if counsel objects, the examiner sustains then or overrules, and then it is up to the Commission to sustain or overrule the examiner.

Mr. MACDONALD. We are not a law school, and I am going to let Mr. Moss question.

It is his turn and then I will go back to you, Mr. Springer. Who was this retired railroad conductor represented by?

Did he have a lawyer?

Mr. WILHITE. He was brought to the stand by the assistant attorney general of the State of Nebraska.

Mr. MACDONALD. Do you think that had anything to do with the fact that the objection was made to him, but not the Governor ? In my State, there is a pretty close relationship, usually, between the attorney general and the Governor.

Mr. WILHITE. Sir, I don't see any relationship between the attorney general and the Governor.

Mr. MACDONALD. All right. If there is no relationship, I recognize Mr. Moss.

Mr. Moss. Aren't you permitted the widest possible latitude in determining whether or not you will admit evidence, and isn't it a fact that you are not bound by the rules of evidence?

Mr. WILHITE. As I understand it, we are supposed to

Mr. Moss. Give it weight.

Mr. WILHITE. To follow the same rules a Federal judge would, without a jury.

Mr. Moss. It is my understanding and let me make it very clear, I am not an attorney, but I have been sitting in hearings similar to this now in my 22d year, and I always understood that the Administrative Procedures Act was enacted for the specific purpose of governing administrative procedures and that they were intended to confer broad latitude, much broader than that granted to the courts.

Mr. WILHITE. That is true.

Mr. Moss. Then is it correct that you are not bound? You take the evidence-you don't have to accept the objection or sustain it, and you give it whatever weight you feel it should properly receive. Mr. WILHITE. Yes; the rules are very lenient.

Mr. Moss. They are very lenient and therefore the rules as they were being enforced in this instance, were being enforced far more in accordance with the custom of a court than the custom of an administrative hearing.

Mr. WILHITE. I would say they were being administered in the same manner that any other hearing examiner would administer them with the same circumstances.

Mr. Moss. Well, let us ask how broadly based the information is upon which you draw for that statement. That is a conclusion, a rather sweeping one.

Mr. WILHITE Yes.

Mr. Moss. I have had many hearing examiners before me over the years, and certainly I could find some who would disagree rather vigorously with your statement. If you have a basis for it, I would like to be acquainted with the basis.

Mr. WILHITE. Sir, I don't understand the question.

Mr. Moss. It is rather a simple question, but I will restate it in a more simple form.

What is the experience of what other hearing examiners would do in a similar set of such circumstances that you rely upon in making the assertion that you did precisely what all other hearing examiners would have done under similar circumstances?

Mr. WILHITE. Well I would say that I went too far.

Mr. Moss. I would agree with you."

Thank you.

I just wanted to clarify that we are not here bound as tightly as you had indicated, nor as my distinguished colleague and a very competent lawyer from Illinois has indicated.

Mr. WILHITE. No; I have no fact to that. It is merely an assumption on my part.

Mr. SPRINGER. Mr. Chairman, Mr. Wilhite, on page 520 you even tried to help the fellow out. "Counsel, may I suggest you question the witness and determine what questions you should ask, otherwise, we will spend the rest of the afternoon with this gentleman."

You took a 10-minute break to see if you could get the thing straightened out, isn't that correct?

Mr. WILHITE. That is true.

Mr. SPRINGER. Now on page 524, down at line 14, you said, "Counsel you know that this is not admissible." His own counsel said he had never read the document. There is incompetence if I ever saw it.

The examiner then took a 5-minute break to work out what is proper. You took the break in an effort to help the lawyer get this witness straightened out.

Isn't that correct?

Mr. WILHITE. Yes, sir; that was my purpose.

Mr. SPRINGER. Thank you.

Mr. MACDONALD. Mr. Pickle.

Mr. PICKLE. Thank you. I would like to depart quickly from this line of questioning. I hope we might make a little progress here.

51-728-71-pt. 1-5

For my information, in the area of losses it has been testified here, earlier that generally the railroads or the Commission considers average losses, or system losses, and does not consider actual losses.

I wish you would comment to me, what is a better approach, or what is a sound approach, or, how do we go at the problem of trying to establish the actual losses or real losses or whatever term they are called by?

Mr. WILHITE. Well, I think that a certified public accountant could probably give you a better answer. I do know enough about it that there are certain costs that a railroad has that are system averages. It is based upon the experience with a particular type of locomotive as to how many gallons of fuel it burns an hour.

They have a record of the hours and other types of equipment, the number of miles they travel. It depends upon the amount of repairs. But there are other items that are actual expenses, such as a crewman, the engineer, or the brakeman or the baggageman.

There is no-those are not system, those are actual. There are certain items such as porters and clerks in the stations and many, many other things, supplies for the trains, all those are actual.

The only time that you can be absolutely sure that you are getting a true picture of actual expenses is when the case involves the last trains of that railroad involved, because those trains go, and those expenses will be gone.

Mr. PICKLE. Then it is difficult to actually know what are the losses in passenger service or how do you separate the losses in the passenger services as distinguished from the rest of the system?

Mr. WILHITE. It cannot be a hundred percent correct, because a lot of it is based upon judgment, and as you say, on system averages. The railroads are disallowed many, many items today that they were not-that used to be allowed say, 10 years ago.

Mr. PICKLE. I am not sure that I understand yet how you established the system losses, or losses as such on any one route. Do you take the railroad figures and just examine them, or do you go beyond them?

My question was, and I will repeat it after the clerk changes the paper, do you accept the system costs on face value from the railroad, or do you go beyond those figures and try to compare any figure you might have of your own, or that you might have established on your own?

Mr. WILHITE. I try to, if it is not developed by protestants, I take it upon myself to, where I know that certain items may be overstated to question about them, and in many cases I have had the rails concede that it is overstated by 10 percent or 20 percent, and sometimes 30 percent, and then when it comes to drafting the report, the figures are adjusted accordingly.

Mr. PICKLE. Why would it be difficult to establish the losses or the revenues of train A between Washington and Atlanta, why would it be so very hard to establish either the losses or the profits on a particular train in

Mr. WILHITE. Well, there is really no difficulty. The railroads present their evidence, the amount of revenues they have received, and then they list their expenses and expenses are in connection with the revenues, and they find either a profit or a loss, and it is the expense item, where people differ as to which ones are legitimate and which ones are overstated or which ones should be disallowed.