of its own valuation without having afforded the carrier not only the opportunity to be heard on such valuation but also the opportunity to offer evidence to refute it. The published valuation may be considered as prima facie evidence in the proceeding but it is clearly not conclusive.
The procedure which must be followed is prescribed by Section 15(7) of the Act, supra. The pertinent provisions of this section read as follows: 'Whenever there shall be filed with the commission any schedule stating a new individual * * * rate, fare, or charge, * * *, the commission shall have, and it is * * * given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer, or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, (or) charge, * * *.' The statute clearly contemplates that the interested parties, both the carrier and protestants, shall be afforded an adequate opportunity to be heard on the merits of the controversy; nothing more would seem to be required. The right to be heard must be interpreted as embracing the right to present evidence.
It cannot be seriously contended that the plaintiffs in the instant case were not accorded a full and complete hearing. The record before the Commission includes more than 900 pages of testimony and 63 exhibits, most of which contain statistical data. The protestants were granted an adequate opportunity to present their objections to the proposed tariff and to offer evidence in support thereof.
The plaintiffs further contend that the failure of the Commission 'to serve a proposed report' violated the procedural requirements of Section 8(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1007(a). The pertinent provisions of this Act read as follows: 'Whenever the agency makes the initial decision without having presided at the reception of the evidence, such officers (designated examiner) shall first recommend a decision except that in rule making * * * (1) in lieu thereof the agency may issue a tentative decision or any of its responsible officers may recommend a decision or (2) any such procedure may be omitted in any case in which the agency finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires.' (Emphasis by the Court.)
Section 2(c) of the said Act, 5 U.S.C.A. § 1001(c) defines 'rule making' as 'agency process for the formulation, amendment, or repeal of a rule.' This section defines 'rule' as 'the whole or any part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy * * * and includes the approval or prescription for the future of rates, * * *.' (Emphasis by the Court.) Section 15a(1) of the Interstate Commerce Acts, 49 U.S.C.A. § 15a(1), defines the term 'rates' as 'rates, fares, and charges, and all classifications, regulations, and practices relating thereto.' These statutory definitions must be read in pari materia.
We are of the opinion that the exceptions embodied in the Administrative Procedure Act, hereinabove quoted, were intended to permit the omission of a preliminary report or tentative decision where, as here, the law imposes upon the agency the duty to proceed expeditiously. Section 15(7) of the Interstate Commerce Acts, supra, provides: 'the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.' This section further provides that if the proceeding 'has not been concluded and an order made within the period of suspension, the proposed change of rate, fare, charge, * * * shall go into effect at the end of such period'. These provisions require expeditious action, especially where, as here, the proposed tariff is suspended and a hearing thereon ordered.
We are of the further opinion that the Commission properly exercised the discretionary power vested in it by the provisions of the Administrative Procedure Act hereinabove quoted. It appears upon examination of the record that the hearings before the examiner were concluded at 12:30 a.m., on July 20, 1951, and that the participants were permitted thirty days, until August 20, to file briefs. The time for filing briefs was thereafter extended until September 10, at the request of counsel for the plaintiffs. The participants were notified that the matter was listed for oral argument before the Commission on October 4, 1951. The oral argument was then twice adjourned, once on the application of counsel for the plaintiffs. The oral argument was held on October 31, and the report of the Commission was filed on December 3, 1951. It would appear from this recital of the history of the proceeding that further delay would have hampered the Commission in the discharge of its functions.
The record in this case was voluminous, and it would seem that the Commission had a right to make the initial decision without awaiting a tentative decision and recommendation by the examiner, provided, of course, 'that due and timely execution of its functions imperatively and unavoidably' so required. The final report filed in this proceeding stated: 'No proposed report was served in this proceeding for the reasons that due and timely execution of our functions imperatively and unavoidably requires that there be no such report.' The present record will not support a determination by this Court that the action of the Commission was arbitrary.
The error, if any, was a procedural one to which no objection was interposed by counsel for the plaintiffs. The designated examiner advised counsel at the conclusion of the hearing on July 20 that no proposed report would be filed in the proceeding. The record discloses that no objection was interposed upon his being so advised. The objection is here made for the first time and, therefore, should be dismissed as without merit. Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155, 67 S. Ct. 245, 91 L. Ed. 136; United States v. Hancock Truck Lines, 324 U.S. 774, 779, 65 S. Ct. 1003, 89 L. Ed. 1357. It may be inferred that counsel for the plaintiffs, by his failure to object and his subsequent conduct, acquiesced in the procedure followed by the Commission.
We have considered the other arguments advanced by the plaintiffs but we deem it unnecessary to decide the questions they raise. The complaint will be dismissed for the reasons herein stated. The defendants will prepare and submit to the Court, on notice to the plaintiffs, a proper order for judgment.