United States v. Public Utilities Commission of California/Concurrence Jackson

Mr. Justice JACKSON, concurring.

I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute.

I will forego repeating what I have said about this practice in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395, 71 S.Ct. 745, 95 L.Ed. 1035. But I do point out that this case is a dramatic demonstration of the evil of it. Neither counsel who argued the case for the State Commission nor the Supreme Court of California had access to the material used by the Court today. Counsel for the Public Utilities Commission of that State stated at the bar, and confirmed by letter, that he had tried without success over a period of four months to obtain the legislative history of § 20 of Part I of the Federal Power Act. He obtained it only four days before argument, in Washington at the library of this Court. He stated that the City and County Library of San Francisco, the Library of the University of California, and the library of the largest law office in San Francisco were unable to supply it. The City and County Library tried to obtain the material by interlibrary loan from the Library of Congress, but the request was refused. Counsel then attempted to obtain the material from the Harvard Law School Library, but it advised that 'our rules do not permit this kind of material to be sent out on loan.'

The practice of the Federal Government relying on inaccessible law has heretofore been condemned. Some of us remember vividly the argument in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, in which the Government was obliged to admit that the Executive Orders upon which it had proceeded below had been repealed by another Executive Order deposited with the State Department. No regularized system for their publication had been established. Copies could be obtained at nominal cost by writing to the Department. Having discovered the error, the Government brought it to the attention of the Court. At the argument, however, the Court, led by Mr. Justice Brandeis, subjected Government counsel to a raking fire of criticism because of the failure of the Government to make Executive Orders available in official form. The Court refused to pass on some aspects of the case, and the result was the establishment of a Federal Register.

Today's decision marks a regression from this modern tendency. It pulls federal law, not only out of the dark where it has been hidden, but into a fog in which little can be seen if found. Legislative history here as usual is more vague than the statute we are called upon to interpret.

If this were an action to enforce a civil liability or to punish for a crime, I should protest this decision strenuously. However, the decision seems to have operation in the future only. If Congress does not like our legislation, it can repeal it-as it has done a number of times in the past. I therefore concur in the interpretation unanimously approved by the members of the Court who have had legislative experience.

Mr. Justice FRANKFURTER.

The light shed by Mr. Justice JACKSON on the underpinning of the Court's opinion makes me unwilling to share responsibility for a decision resting on such underpinning. It is one thing to construe a section of a comprehensive statute in the context of its general scheme, as that scheme is indicated by its terms and by the gloss of those authorized to speak for Congress, either through reports or statements on the floor. It is a very different thing to extrapolate meaning from surmises and speculation and free-wheeling utterances, especially to do so in disregard of the terms in which Congress has chosen to express its purpose.

Were I confined to the mere text of the legislation we have to construe, with such authoritative elucidation as obviously relevant legislative materials furnish, I would be compelled to find the considerations for fusing, as the Court does, the amended Federal Water Power Act of 1920, 41 Stat. 1063, with Part II of the Federal Power Act of 1935, 49 Stat. 838, 847, too tenuous. In saying this I am wholly mindful of the significance of the decision in Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549. Preoccupation with other matters pending before the Court precludes an independent pursuit by me of all the tributaries in search of legislative purpose that the Court has followed. I am therefore constrained to leave the decision of this case to those who have no doubts about the matter.