(dissenting).
I regret I cannot concur with the conclusions reached by my colleagues and presented by them with their usual clarity and force. I have been reluctant to dissent. It has seemed to me that if I did not agree with associates so able, whose experience in the judicial service is much greater than my own, quite probably I should be wrong. I have not found it possible, however, despite all my endeavor, in this one matter, to go along with my colleagues. The issues involved are so important, the amount at stake so huge, that I conceive that every judge sitting on the court owes it to the Supreme Court and to the parties to contribute according to the best of his understanding to what shall be the final decision. It may be that I have been motivated, although I am not conscious of it, by a desire to be consistent. (I should remember the well known saying: “Consistency is a virtue of small minds.”) I wrote the two earlier opinions of the court. D.C., 8 F.Supp. 766; D.C.,
*55723 F.Supp. 380.1 In the first the court held that the Secretary’s order (identically the same order as that now under review) was sustained not only by substantial evidence but' by the weight of the evidence and that there was no justification for petitioners’ contention that they had been denied a “full hearing.” In the second opinion, in which special attention was given to the question of the Secretary’s procedure, it was again held that the Secretary’s order (identically the same order as that now under review) was sustained not only by substantial evidence but by the weight of the evidence and that the parties had been given a “full hearing.” Judge VAN VALKENBURGH concurred, hesitatingly, in the first opinion. From the second opinion he dissented on the procedural issue only. Judge REEVES now has joined Judge VAN VALKENBURGH. I am left abandoned and alone in the position all once defended. There comes to my mind out of long past school days the opening sentence of a sometime famous ballad: “The boy stood on the burning deck whence all but him had fled.”
My colleagues, I think, have not been able to accept a certain new philosophy— nor do I accept it, although I recognize it, and I bow to it when Congress incorporates it into a valid statute — a philosophy that exalts the administrative agency and correspondingly lessens the powers of courts of justice. Congress has said that, on judicial review, findings of fact made by such an agency, if supported by evidence, shall be conclusive. And so the judicial review becomes largely without significance. It looks, not to substance, but to form. The overwhelming weight of the evidence (the testimony of twenty witnesses) may support one finding; a minimum of substantial evidence (the testimony of a single witness) may support the opposite finding. If the administrative agency, actuated by pique or prejudice or class interest or a consideration of the number of votes to be gained by “the party,” finds against the weight of the evidence, the reviewing court is helpless. And if, under compulsion of law, the reviewing court affirms the agency, it is proclaimed to the world that the United States District Court or the Circuit Court of Appeals or the Supreme Court of the United States has endorsed and approved what the agency has done. It is not unnatural that judges should look with disfavor on such a consequence.
How superficial it is to compare such an arbitrary — possibly even dictatorial— fact-finding power with the fact-finding power of a jury. The jury is Constantly under fhe supervising control of the judge. The judge excludes evidence that is irrelevant, immaterial, or otherwise incompetent. He reviews and sums up the case. He inspires the jury at the hour of its final functioning with the high ideals of justice and truth. And he may set aside whatever verdict the jury has returned.
I think my colleagues have not been able to accept the new philosophy seen in another aspect. To them the “full hearing” which the law requires an administrative agency to give the parties means a hearing comparable in all important details to the historic judicial hearing, a hearing in the solemn and dignified atmosphere of a court room, where the testimony, received under the time-tried rules of evidence, is presented orally to a trained judge, to an impartial judge (the parties may have him removed for bias and prejudice if he is deemed not impartial), to a judge who hears the arguments of opposing counsel and thereafter decides.the matters in issue. It is a far cry, my colleagues think (and so think I) from that kind of hearing to such a hearing as that contemplated by, for example, the Packers and Stockyards Act, 7 U.S.C.A. § 181 et seq., where the testimony is taken by an examiner (who may also be in fact active counsel for one of the contending parties), where the deciding power is vested in an official who never sees a witness, where the ultimate authority cannot practicably even read the evidence (although he may be compelled *558to say he has done so), where there is no satisfactory way under Heaven to dislodge a biased and prejudiced agency and secure another, and where the decision of the agency, so functioning, as to every issue of fact, if supported by any evidence (however defiant of the weight of the evidence), is made as conclusive as the command of a despot. My colleagues find it difficult to see “due process of law” in such a medley of ritual and form and shadow. I honor and respect them for their steadfastness. Scope and.Nature of Duty of District Court.
1. The scope and nature of the duty of this court was made quite clear in the opinion of Mr. Justice Stone when this case last was before the high tribunal. 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211. The rate fixing order of the Secretary had been held invalid, not on the merits, but solely by reason of a defect in the procedure. The Secretary sought to remedy his procedural error by giving the parties another hearing in which he would avoid his earlier mistakes and make what the Supreme Court called a “redetermination” (307 U.S. loc. cit. 188, 59 S.Ct. loc. cit. 798, 83 L.Ed. 1211) concerning whether the rates collected were reasonable. Until that “redetermination” is completed the district court should hold the fund impounded. When the “redetermination” has been made it will “afford a proper basis for the action of the district court in making disposition of the fund.” 307 U.S. loc. cit. 193, 59 S.Ct. loc. cit. 801, 83 L.Ed. 1211. “The court, called on to ascertain; according to equitable principles, the rights of the parties with respect to payments made under the voidable order, could take into account the subsequent determination of the administrative agency as the basis of its action.” 307 U.S. loc. cit. 196, 59 S. Ct. loc. cit. 802, 83 L.Ed. 1211. The Secretary’s “determination, if supported by evidence and made in a proceeding conducted in conformity with the statute and due process, will afford the appropriate basis for action in the district court in making distribution of the fund in its custody.” 307 U.S. loc. cit. 198, 59 S.Ct. loc. cit. 803, 83 L.Ed. 1211. “The district court * * * with the full record of the Secretary’s proceedings before it, including findings supported by evidence, * * * will have the appropriate basis for its action and will be able to make its order of distribution accordingly.” 307 U.S. loc. cit. 198, 59 S.Ct. loc. cit. 803, 83 L.Ed. 1211.
The duty of this court then is now to ascertain: (1) Whether the Secretary’s “redetermination”, his “final order in the proceedings pending before him” (307 U.S. loc. cit. 198, 59 S.Ct. loc. cit. 803, 83 L.Ed. 1211), is supported by evidence; (2) whether it was made after a “full hearing”; and (3) to distribute the fund, with the final order as the basis of distribution, if there was supporting evidence for the order and a “full hearing.” Of course the burden of proof is on those who attack the Secretary’s order, which presumptively, is valid.
Is the Order Supported by Evidence?
2. I shall devote little space to a discussion of the first inquiry which the Supreme Court has said we must pass upon. Twice this court has held, as I have noted (and the Supreme Court emphatically called attention to the fact in the third Morgan opinion, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211), that an order of the Secretary, identical with the order2 now under review, was supported by substantial evidence. Indeed, as also I have noted, this court went further and held the order was sustained by the weight of the evidence. But exactly the same evidence (and a little additional evidence) is before the court now as was before it on the first and second hearings. With the same evidence and the same order again before the court how can we say that the order, which we have hitherto said was supported by the weight of the evidence, is not supported by any evidence? Shall we forget or ignore on Wednesday what we said on Tuesday and also on Monday? Shall we too repudiate the doctrine of stare decisis, not only generally, but in later stages of a case after clear and definite rulings in earlier stages of the same case. To do these things would make me to blush with all the changing colors of the chamaleon. I hasten to say that my colleagues are not embarrassed because they sincerely believe that somehow the whole picture has changed with *559the passage of time, as the turn of a kaleidoscope varies what the observer beholds.
For myself, I am helped by the imagery suggested by the terminology which judges and lawyers are wont to use. We speak of “substantial evidence,” of a “scintilla of evidence,” of the “weight of the evidence.” They are terms which suggest a pair of balances. A weight is deposited in one balance. The beam is deflected. That is “substantial evidence.” Again, weights are alternately deposited in each balance. Now the beam again is deflected on that side where is the “weight of the evidence.” Perhaps only an airy feather is deposited in a balance. It is too light to have any effect —a mere “scintilla of evidence.”
On the first presentation of this case to us and again on the second presentation we saw the evidence of the petitioners deposited in one balance and that of the respondents in the other. The index showed that the evidence in respondents’ balance not only was “substantial evidence,” but also that the “weight of the evidence” was there. Now on the third presentation nothing has been taken away from respondents’ balance, nothing has been taken away from petitioners’ balance. A little has been added on petitioners’ balance. Perhaps that little that has been added is enough to change the “weight of the evidence” from one side to the other. But certainly the mere addition of something in one balance cannot have the effect of changing the nature of what is in the other balance from what was “substantial evidence” to a mere “scintilla” or to nothing at all.
I do not doubt that my colleagues would agree at once with such elementary truths. It is their view, if I understand it rightly, that what was “substantial evidence” supporting at the earlier hearings the Secretary’s order was only prophesy (competent perhaps when only prophesy was available) and that it loses all value — ceases to be “substantial evidence” — when contradictory evidence based on actual experience is available. It is convincing reasoning, as clearly was pointed out by Mr. Justice Cardozo in West Ohio Gas Company v. Public Utilities Commission, 294 U.S. 63, 55 S.Ct. 316, 79 L.Ed. 761. But the application of that reasoning to this case is most doubtful. If one looks to the record and not to the dramatically worded briefs of petitioners’ learned counsel (which over and over again take a little, a scarcely discernible molehill, and build it up into a towering, snow-clad Everest) he will discover how inapplicable the excellent abstract reasoning of my colleagues is to the facts here presented. The simple truth is, unless I err (and I err frequently and with much facility), the simple truth is that there is in this record no competent evidence showing conclusively out of actual experience what would have been the effect of the Secretary’s order, if its enforcement had not been enjoined. At best, the evidence tendered in this connection was shadowy, based on hearsay and speculation. It fell far short of that cogency that would have been necessary to transmute into thin air what this court hitherto held was “substantial evidence.”
Requirement of “Full Hearing” Met.
3. Just as this court twice has held the Secretary’s order was supported by substantial evidence, so it twice has held that the Secretary gave the parties that “full hearing” the law requires. Certainly the showing of “full hearing” is much stronger now. Nor should that be surprising. Since the last hearing the Secretary has been taken to the “wood shed” by the Supreme Court (he will not object, I trust, if I choose a figure from our common rural background). He came out chastened, with an understandable desire thereafter to walk the chalk line. It would be strange if he had not profited from his lesson. My colleagues, however, who now attack on both front and rear, who now smite the Secretary, hip and thigh, think he has wandered from the true path even when he just had been given a chart and compass.
Why did the Supreme Court hold in the second Morgan case (304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129) that the Secretary had not given a “full hearing”? The essence of the opinion is that he did not do so because he accorded the petitioners no reasonable opportunity “to know the claims of the opposing party and to meet them.” 304 U.S. loc. cit. 18, 19, 58 S.Ct. loc. cit. 776, 82 L.Ed. 1129. (1) There was no specific complaint at the inception of the proceeding. 304 U.S. loc. cit. 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129. (2) There was no report by the examiner. 304 U.S. loc. cit. 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129. (3) No findings were proposed by the government. 304 U. S. loc. cit. 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129. (4) The oral argument before the Secretary did not reveal the claims of the Government in an adequate manner. 304 U.S. loc. cit. 19, 82 L.Ed. 1129. (5) The *560Government did not submit a brief setting out its claims. 304 U.S. loc. cit. 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129.
The Supreme Court did not say and clearly did not intend to say that there should have been a revelation to the petitioners of the Government’s claims by all of the methods mentioned in the foregoing analysis as (1), (2), (3), (4), and (5), but that, before the Secretary acted, the claims of the Government should have been made known to the petitioners by some one or more of those methods or by some other method. It is important, moreover, to bear, in mind that the Supreme Court distinguished between the Secretary, the administrative tribunal with power to decide, and the Government, the adversary party. The distinction is not clearcut since the Government, in a proceeding before the Secretary, is made up of attorneys and examiners appointed by and representing the Secretary (in a sense the Government is the Secretary’s alter ego), but nevertheless it is a real distinction. The Supreme Court did not say and did not intend to say that the petitioners were entitled to be heard not only as to what, if any, were the claims and contentions of the Government, the adversary party, but also as to each and all of the conclusions reached tentatively or otherwise, after submission, by the administrative tribunal, on the way to its final judgment. The Supreme Court said (304 U.S. loc. cit. 18, 58 S.Ct. loc. cit. 776, 82 L.Ed. 1129) : “We agree with the * * * contention that it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions, if he gave the hearing which the law required.”
This opinion of the Supreme Court, when it has thus been analyzed, may be laid to one side. The petitioners do not even assert in the briefs submitted on the procedural issue that the standards set up in this opinion and held not to have been met were not fully satisfied at the last proceeding before the Secretary.3 There is now no suggestion that the petitioners were not fully advised by an examiner’s report, by written briefs, and by full statements in oral argument, exactly what the contentions and claims of the Government were, with full opportunity for counter argument. Indeed it is inconceivable that the Secretary would not have complied with the requirements of “full hearing” so plainly and so recently set out by the Supreme Court.
It is true that in the oral argument before this court it was suggested that certain findings additional to those recommended by the Government were made in his final decision by the Secretary and it was contended that petitioners should have had a chance to present an argument concerning these findings. ' The argument is not valid. It fails to make the distinction between the Secretary as the tribunal authorized to make a decision and the Secretary as prosecutor through a Bureau in his Department and his subordinates. The Supreme Court makes the distinction. The adversary party (adversary to petitioners) is not the Secretary as tribunal but the prosecuting subordinates in the Bureau of Animal Husbandry. They are the Government in this case. Petitioners are entitled to know what the Government contends and to have opportunity to answer those contentions before the tribunal makes its decision. The petitioners are not entitled to be heard upon the tentative con-, elusions the Secretary has reached, in the evolution of his thought, after submission and before final judgment.
The truth is the petitioners do not rely upon the so-called second Morgan opinion and decision (in 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129) which reversed the judgment of the court after this court had found that the Secretary had given the petitioners a “full hearing.” They rely upon what was said in the so-called first Morgan opinion and decision. 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288. That decision therefore must be analyzed and the last proceeding before the Secretary tested by its standards.
*561This court did test the original proceeding before the Secretary by the standards set up in the first Morgan decision. A majority of this court held that by these standards petitioners had been accorded a “full hearing.” The majority of this court after a full discussion of the matter (D.C., 23 F. Supp. 380, pages 382, 383) declared the Secretary had done everything the law required of him and made a full finding of fact (23 F.Supp. page 383, 2nd column) as to what in that connection he had done.
In the second Morgan case the Supreme Court did not criticize the opinion of this court or its finding of fact just referred to. The opinion of the Supreme Court does not intimate that any fact found by this court was not correctly found. The Supreme Court decided the case upon an argument which never was presented to this court by pleadings or briefs or orally, namely- — that petitioners did not have a “full hearing” in that the Government’s claims and contentions were presented to the Secretary ex parte, that they had no opportunity to reply to those claims and contentions before the Secretary reached his decision. Except for that new argument advanced for the first time in the Supreme Court there is no reason for believing that the judgment of this court on the procedural issue would not have been affirmed.
The Supreme Court said in the first Morgan opinion that a “full hearing” does not require that there should be an examiner’s report to which the parties might except. 298 U.S. loc. cit. 478, 56 S.Ct. loc. cit. 910, 80 L.Ed. 1288, but see 304 U.S. loc. cit. 21, 58 S.Ct. loc. cit. 777, 82 L.Ed. 1129. A “full hearing” does not mean that the evidence taken may not be sifted and analyzed by subordinates and only the results of that sifting and that analysis submitted to the Secretary. 298 U.S. loc. cit. 481, 56 S.Ct. loc. cit. 912, 80 L.Ed. 1288. The Supreme Court said only that a “full hearing” means -^-“there must be a hearing in a substantial sense. And to give the substance of a hearing * * * the officer who makes the determinations must consider and appraise the evidence which justifies them.”- It is intimated also, but not squarely held, that opportunity for argument, either written or oral, before the Secretary must be afforded.
Now in what way is it charged that these broad standards, which this court held were fully satisfied in the original proceeding, were not:.satisfied''in the last proceeding?
Petitioners’ Brief Advances Five Contentions.
The first contention of petitioners, that the petitioners were denied a “full hearing” because there was not an impartial tribunal, needs be discussed but briefly. The contention is bottomed on a letter the Secretary wrote in such a moment of intemperance as comes to all (even to some judges, who, however, are sufficiently cautious not to put what they freely say in written form), in which he said after this litigation had been in progress for several years and had been twice decided by this three-judge court in the Secretary’s favor — in which he said in substance — the tlvree-fudge court which alone has passed upon the merits was right, the money “rightfully belongs to the farmers” who paid commissions.
Certainly no such statement made by a trial judge in a constitutional court, after a first trial, would support an affidavit of bias and prejudice against him at a second trial. Moreover no statute authorizes an affidavit of bias and prejudice against the Secretary of Agriculture under any circumstances, just as there is none which authorizes an affidavit of bias and prejudice against a justice of the Supreme Court or a judge of a Circuit Court of Appeals.
It is argued -that, absent any statute setting up machinery for disqualifying the Secretary and securing a substitute (authorizing the Secretary, for example, to call in the Postmaster General), the right to disqualify is implied in the phrase “full hearing.” Does not a “full hearing” require, it is asked (and Justice Brandéis, speaking in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, at page 73, 56 S.Ct. 720, at page 735, 80 L.Ed. 1033, is quoted), “that the trier of the facts shall be an impartial tribunal”?
Of course the “full hearing” required by the statute implies an impartial tribunal. Just so the Constitution and laws require that the Supreme Court and the circuit courts of appeals shall be impartial tribunals. The remedy if a circuit judge shall play the tyrant is by appeal to the Court of Impeachments. The remedy, if the Secretary shall violate his duty, is by appeal to the President to remove him or to the Court of Impeachments. The celebrated case of Turney v; Ohio, 273 U. S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L. R. 1243, cited by petitioners, has no applicability whatever. In that, case the Supreme Court held, not that - a de.c^ee of a *562judge not impartial is void, but that a state statute creating a judicial system in which judicial partiality certainly would arise, violates the due process clause of the Fourteenth Amendment.
The second contention — that the Secretary initiated and conducted the last proceeding in an unfair manner — is hyper-technical. It disregards the broad interpretation rightfully placed by the Supreme Court on the meaning of “full hearing.” That interpretation ignores mere mechanics and considers only the right of parties (1) to have the ultimate decision made by the Secretary upon the evidence, after it has been sifted and analyzed for him by his subordinates, (2) to be advised of adversary contentions, with (3) a chance to be heard concerning them, before judgment.
This second contention is said by petitioners to be supported by the reasoning of Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, 71 N.E. 933, decided by the Supreme Court of Illinois in 1904, but the inapplicability of that case is at once apparent to him who studies it. It is absurd to speak of the findings with which the Secretary began the last proceeding as “tainted” findings, as petitioners in this connection speak of them, or to suggest that the examiner who made them should not again have been permitted to act. There is no basis in anything the Supreme Court ever has said for extravagances like these. It was not that the findings were “tainted” nor that the examiner in any way had exceeded his authority, that led to the reversal of former judgment of this court. It was the error of the Secretary that led to that result, his failure to give petitioners notice of the Findings and a chance to oppose them in argument. That alone brought about the reversal.
The third contention — that the notice given by the Secretary was not a notice of the precise kind of proceeding which actually was conducted — deserves no serious consideration, unless the petitioners also say (and, of course, they do not say it) that they had no actual notice of what kind of proceeding was being conducted by the Secretary and for what purpose it was being conducted long before the proceeding was ended.
The fourth contention — that the Secretary did not sufficiently consider the evidence — is based wholly upon the Secretary’s own testimony, taken subject to the objection that the inquiry into what he had read and had not read was improper. This court took that objection under submission with the case.
The objection ought to have been sustained. The Secretary’s duty to afford a “full hearing” is the same, not in details, but in fundamentals, as that of a judge to whom a case is presented in court (certainly the Secretary’s duty is not circumscribed in some closer fashion). Literally thousands of cases are submitted to federal district judges upon agreed statements of facts or upon deposition evidence not read in open court (I just have concluded a long trial in which depositions covering thousands of pages were offered in evidence but not read in court). Has anyone ever heard of a court of appeals, reviewing such a case, entertaining arguments that the trial judges did not read and consider the evidence ? Certainly not. The presumption is conclusive that the trial judges have done their duty.
This court heretofore (before the first Supreme Court decision in this case) passed upon the same record as was presented to the Secretary. Our duty, as we thought it might be, was identical, in the respect now considered, with that of the Secretary,, that is, to determine from the zveight of the evidence whether the Secretary’s judgment was right or wrong. A record made up of thousands of pages and of hundreds of exhibits was handed to the court. Did any of the judges read all that record or examine all those exhibits?
What the judges of this court did (and what, I doubt not, the justices of the Supreme Court will do when this case reaches them) was to read and hear the summaries of the evidence which the parties made in their written, and oral arguments (perhaps occasionally “dipping into the transcript”) and to hear and consider their respective contentions. That was a “full hearing,” a judicial hearing.
Even if the objection to the Secretary’s testimony should be overruled, the contention now considered is without force. To contend that the Secretary personally must have read any part of the original transcript of testimony is to defy the clear, holding of the Supreme Court that he may have the testimony summarized and analyzed by his subordinates. The Supreme Court did not say that the Secretary must read •the very zmrds of some of the testimony. The Supreme Court did not es*563pouse the theory that the Secretary’s subordinates probably would undertake to deceive the Secretary in their summaries and analysis. (It is regretable that most honorable counsel sometimes are willing to suggest that men equally honorable and unselfish — whose .only fault is that they are public servants — are capable of intentional deception.) If the petitioners did not like the summaries prepared by the Secretary’s subordinates (or if some of the testimony was not summarized by them), is there any suggestion that counsel for petitioners were prevented from submitting their own summaries? Who prevented them from summarizing anything they desired to summarize, in their briefs, in supplements to their briefs, in their oral arguments? Are they not content that the Secretary read and considered their summaries? Must he, the Secretary of Agriculture, the head of a great executive department of the Government, must he not only check up on his own subordinates to ascertain whether they have imposed upon him but must he also check the summaries of counsel for petitioners to make certain that they did not understate their case? And if counsel for petitioners did not present out of the record, in summarized form, whatever they ...desired the Secretary should especially consider, whose fault is that? Even a man sentenced by a trial judge to death, if the trial judge gave him every opportunity to be heard, would not be listened to by an appellate court with much patience, if his only complaint was that he did not take advantage of his opportunity.
The fifth contention (the only remaining contention on the procedural issue presented to this court) is that the Secretary failed to find that the rates charged by the market agencies were unreasonable. He found only that “the rates and charges now under ipvestig'ation contain rates and charges which are unreasonable ’and unjustly discriminatory.” Petitioners give little space in their brief to this contention. The play is upon the word “contain.” The Secretary should have used the word “are,” where he used “contain.” A medieval scholastic would have loved this sort of argument, bottomed on a fine distinction drawn between two expressions which certainly are here essentially the same in meaning, although, using a word micrometer, one might discover a faint overlapping. If a schedule of rates contains rates which are unreasonable is not the schedule unreasonable? But I shall give the contention as little space as petitioners give it. I know that a drowning man seizes upon straws.
Conclusion.
4. My conclusion is that (1) it has not been proved that the Secretary’s order is not supported by substantial evidence, (2) that it has not been proved that the Secretary did not give petitioners a “full hearing,” and (3) that the fund now held by the clerk of this court and amounting to $586,093.68 should, in equity and upon the basis of the Secretary’s order, be repaid to the farmers from whom it was collected.
It is a pleasure to add a word attesting my personal appreciation (shared, I am sure, by my colleagues) for the superb, lawyer-like, scholarly presentation of their respective contentions by counsel who have appeared in this court in this case: Mr. Gage, Mr. Cowherd, and Mr. Cooke for the petitioners; Mr. Berge, Mr. Cox and Mr. Wilson for the respondents.
I wrote also the per curiam opinion (D.C., 24 F.Supp. 214, 215) announcing the judgment of this court, which was reversed in 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211. This court had held the Secretary’s original order valid. The Supreme Court on review said it was invalid. This court had compelled a deposit of money by the petitioners “on the understanding and assurance that the fund so created would be returned if the Secretary’s order were held invalid.” This court thought it should abide by its pledged word. The Supreme Court, however, decided in 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211, that the fund which had been collected on a definite understanding should be disposed of as equitable principles might require.
I have used in this opinion the word “order” to designate the Secretary’s “re-determination” as to the unreasonableness of the filed rates and as to what would have been reasonable rates because the Supreme Court used that word in 307 U.S. loc. cit. 198, 59 S.Ct. 795, 83 L.Ed. 1211. There is, of course, a distinction between the Secretary’s original prospective order and this last retrospective order.
It is impossible to escape the conclusion that the petitioners recognize that the last proceeding before the Secretary was strictly in conformity with the requirements of a “full hearing” set up by the Supreme Court in the second Morgan case. Thus on page 12 of petitioners’ brief now submitted to this court on the procedural issue it is said: “The Secretary’s reopening order of June 2, 1938, recognized only one defect in the prior hearing befoi’e him, to-wit, the failure to accord to the market agencies the opportunity to argue with respect to the invalidated findings.” But that was the only defect in the hearing which the Supreme Court pointed to in the second Morgan case. Petitioners seem to concede that that defect at least was avoided in the last proceeding before the Secretary.