(dissenting).
The claimants were entitled to a trial of the issues and that means nothing less than that the trier of the facts should hear the evidence. This important constitutional right is the essence of our system of justice and its denial is a violation of the guarantee of due process. We ought not to trifle with so fundamental a right by straining to construe a consent from a failure to request a trial de novo, especially where, in my view, it was implicit in the claimants’ objection to the dismissal of the commission that the claimants were not consenting to a substitute trier of the facts who had not heard the witnesses.
I agree with my brothers that the district judge had the power to withdraw these claims from the commissioners and discharge them because of their long delay and inexcusable inattention to their duties and the communications of the court. But the three year delay on the part of the commissioners did not justify the district judge’s unseemly haste once he had decided to oust them.
The district judge on his own motion entered an ex parte order on October 10, 1956 and took “all issues now pending and undetermined before said commission” away from the commission and ordered all the parties to appear before him on October 29 “for the purpose of offering any further proof or testimony concerning the issues of just compensation * * * and/or stipulating that the Court may hear and determine said issues upon the record heretofore made before the Commission.” (Emphasis supplied.) Thus at the outset the judge realized that he could not decide the claims on the record already made unless the parties consented. Nowhere does the record show a consent or stipulation by the claimants to have the district judge pass on the issues by reading the cold black and white of the lengthy record made before the commission and to decide disputed questions of fact and opinion which turn on the trier’s view of the credibility of witnesses without the benefit of having heard and seen the witnesses. On the contrary the claimants immediately moved to vacate the order of October 10.
When the matter was heard on October 29 the claimants urged that the claims be returned to the commission but the district judge refused to vacate his ex parte order of October 10. The government, *675on the other hand, urged the judge to decide the claims on what had been heard before the commissioners.
When the claimants took exception to the denial of their motion to vacate the October 10 order, the district judge made it abundantly clear that he would only open up the record for additional proof and he would set November 15 for hearing further proof. This ruling was incorporated in a formal order signed November 2, 1956 which contained this paragraph:
“Ordered that this proceeding is adjourned to November 15, 1956, at 10:30 A.M. for the submission of any further evidence, proof or briefs which any of the interested parties may desire to submit and that thereafter the issues of just compensation affecting parcels 1, 5, 8, 13, 22, 24, 26, 38, and 219 shall be considered and determined by the court upon the evidence before the court in this action and as may be submitted by the parties on the adjourned date hereinbefore referred to.” (Emphasis supplied.)
It is to be noted that the order provided for hearing “further evidence” on November 15, and that the claims would then be decided on the basis of what was already before the court, namely, the record before the commissioners together with any product of the November 15 hearing.
No further evidence was offered on November 15 and the judge filed his opinion a few days later on December 6.
In my view of the facts this case is very much like Smith v. Dental Products Co., 7 Cir., 1948, 168 F.2d 516, where the Court of Appeals reversed the action of the district judge in proceeding to decide issues on the record made before a master who had died before making his report. There were disputed factual issues before the master. The parties had not consented to the district judge deciding on the record before the master. The Court of Appeals pointed out at page 519 that “ * * * the deciding officer, whether administrative in character or judicial, has a real function to perform in due process. * * * The requirement of a ‘full hearing’ has obvious reference to the tradition of judicial proceedings in which evidence is received and weighed by the trier of the facts. The ‘hearing’ is designed to afford the safeguard that the one who decides shall be bound in good conscience to consider the evidence, to be guided by that alone and to reach his conclusion uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action. The ‘hearing’ is the hearing of evidence and argument. If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that the hearing has not been given. * * * ” And the Court concluded by saying: “We think it was the duty of the District Court, in the absence of findings and report from the Master, in order to afford the parties a hearing within the recognized legal meaning of that word, to direct a trial de novo before another Master or before itself.” See also S. Buchs-baum & Co. v. Federal Trade Commission, 7 Cir., 1946, 153 F.2d 85.
Furthermore, the objections to the district court procedure made by claimants Clark and Reeves should inure to all six appellants. Although the application for reinstatement of the commission was made by the attorney for Clark and Reeves, it is clear that on argument the attorneys for the other claimants joined in the motion and the district court considered it as made for all nine.
“Mr. Finn: There is one other point which I wish to make clear: It is time that I made the motion on behalf of the two property owners, but I think if you will ask counsel here present in court you will find that I told them that I would make this motion and they said that they would join on the application, or rather on the argument of it.
*676“The Court:. Well I will consider the whole nine. I want to get this thing so we can decide it.”
Nor can I find in the record any support for the view of the majority that two of the claimants, in requesting clarification of the district judge’s order and permission to file briefs affirmatively stated “satisfaction with the procedure worked out by the court.”
I would reverse the judgment of the district court and remand for a trial de novo.