JACKSON, J., dissenting. 344 U.S. these awards rarely can comply with the three-months time limitation for wage priority because of the lag occasioned by Labor Board proceedings to establish the unlawfulness of their discharge by the employer. If they could do so, their claims would doubtless take the second priority and be paid in preference to everything except administration expenses. The judgment below denies these claims second priority but admits them to the fifth class. Ahead of them, in the fourth class, are all taxes owing to the United States and to any state or subdivision, and this obviously is the priority intended to protect the federal revenues. Only after all revenue requirements are thus satisfied does the judgment below allow these claims to be paid. The Bankruptcy Act in this fifth category certainly contemplates a class of Government claims not arising out of taxation. It does not seem to me inappropriate to consider the relation of the Government to the wronged laborer established by the Labor Relations Act as analogous to the Government's wardship toward Indians, found to warrant invocation of its priority in Bramwell v. United States Fidelity Co., 269 U. S. 483. The slogan “equality of distribution" can have little meaning when we are considering a section of a statute designed to establish inequality by a series of priorities. To protect the bankrupt's estate against inequalities caused by the unlawful preferences attempted by the bankrupt is one thing; to invoke such a "theme" to level out priorities created by statute is another. While the legislation is not as complete or clear as one would like, supplying the rule for conflicts unanticipated by Congress is a large part of our work and I think the courts below have arrived at a practical solution of this question that accomplishes the purposes both of the Bankruptcy Act and the National Labor Relations Act. I would therefore affirm. Syllabus. UNITED STATES ET AL. v. L. A. TUCKER APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI. No. 18. Argued October 20, 1952. Decided November 10, 1952. A motor carrier applied to the Interstate Commerce Commission for a certificate of convenience and necessity under § 207 (a) of the Interstate Commerce Act. Appellee intervened in opposition. The hearings were conducted by an examiner not appointed pursuant to § 11 of the Administrative Procedure Act; but appellee did not object at any stage of the administrative proceedings, although it had ample opportunity to do so. The Commission granted the certificate. Appellee petitioned a district court to set aside the Commission's action and, for the first time, challenged its validity on the ground that the examiner was not appointed pursuant to § 11 of the Administrative Procedure Act. It offered no excuse for its failure to raise the question sooner and made no claim of actual prejudice by the conduct of the examiner or the manner of his appointment. Held: The district court should not entertain this objection when first made at that stage of the proceedings. Pp. 34-38. (a) The defect in the examiner's appointment was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings. P. 38. (b) But it is not one which deprives the Commission of power or jurisdiction, so that even in the absence of timely objection its order should be set aside as a nullity. P. 38. (c) Riss & Co. v. United States, 341 U. S. 907, and Wong Yang Sung v. McGrath, 339 U. S. 33, distinguished. Pp. 36-38. 100 F. Supp. 432, reversed. The District Court set aside an order issued by the Interstate Commerce Commission under § 207 (a) of the Interstate Commerce Act, on the sole ground that the hearings on the application therefor were conducted by an examiner not appointed pursuant to § 11 of the Ad Opinion of the Court. 344 U.S. ministrative Procedure Act. 100 F. Supp. 432. On appeal to this Court, reversed and remanded, p. 38. Edward M. Reidy argued the cause for the United States and the Interstate Commerce Commission. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Clapp, Robert W. Ginnane and Charles H. Weston. Philip B. Perlman, then Solicitor General, and Daniel W. Knowlton, then Chief Counsel for the Interstate Commerce Commission, were on the Statement as to Jurisdiction. B. W. La Tourette argued the cause for appellee. With him on the brief was G. M. Rebman. MR. JUSTICE JACKSON delivered the opinion of the Court. One Cunningham applied to the Interstate Commerce Commission for a certificate of public convenience and necessity to authorize extension of his existing motor carrier route.1 A railroad and eleven motor carriers, including appellee, intervened to oppose. The issues were referred to an examiner who after hearing recommended that, with exceptions not material here, a certificate be granted. Appellee excepted, whereupon Division 5 of the Commission, in substance, approved the recommendation. Appellee requested reconsideration by the full Commission, which was denied, and then petitioned for "extraordinary relief," which also was refused. The Commission thereupon issued a certificate to Cunningham. Appellee, upon the ground that the evidence did not show need for the additional transportation service, petitioned the District Court to set aside the certificate and order. The Commission and the United States answered and a three-judge court was convened. 149 U.S. C. § 307. 33 Opinion of the Court. On the day appointed for hearing, appellee moved for leave to amend its petition to raise, for the first time, a contention that the Commission's action was invalid for want of jurisdiction because the examiner had not been appointed pursuant to § 11 of the Administrative Procedure Act. The District Court allowed amendment and, upon proof that the appointment had not been in accordance with that Act, invalidated the order and certificate without going into the merits of the issue tendered in the original complaint. This appeal by the United States and the Interstate Commerce Commission raises but a single question-whether such an objection, first made at that stage of the proceedings, was not erroneously entertained. We hold that it was. Appellee did not offer nor did the court require any excuse for its failure to raise the objection upon at least one of its many opportunities during the administrative proceeding. Appellee does not claim to have been misled or in any way hampered in ascertaining the facts about the examiner's appointment. It did not bestir itself to learn the facts until long after the administrative proceeding was closed and months after the case was at issue in the District Court, at which time the Commission promptly supplied the facts upon which the contention was based and sustained. The apparent reason for complacency was that it was not actually prejudiced by the conduct or manner of appointment of the examiner. There is no suggestion that he exhibited bias, favoritism or unfairness. Nor is there ground for assuming it from the relationships in the proceeding. He did not act and was not expected to act both as prosecutor and judge. The Commission, which appointed him, did not institute or become a party in 25 U.S. C. § 1010. Opinion of the Court. 344 U.S. interest to the proceeding. Neither it nor its examiner had any function except to decide justly between contestants in an adversary proceeding. The issue is clearly an afterthought, brought forward at the last possible moment to undo the administrative proceedings without consideration of the merits and can prevail only from technical compulsion irrespective of considerations of practical justice. In Riss & Co. v. United States, 341 U. S. 907, this Court held that officers hearing applications for certificates of convenience and necessity under § 207 (a) of the Interstate Commerce Act are subject to the provisions of the Administrative Procedure Act. But timeliness of the objection was not before us, because in that case the examiner's appointment had been twice challenged in the administrative proceedings, once, as it should have been, before the examiner at the hearings and again before the Commission on a petition for rehearing. That decision established only that a litigant in such a case as this who does make such demand at the time of hearing is entitled to an examiner chosen as the Act prescribes. We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes," 4 Our decision in the Riss case was announced after the administrative proceeding herein, but before the District Court's hearing. Riss apparently prompted appellee to raise the point about the examiner's qualifications in the District Court. 5 Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117, 130; United States ex rel. Vajtauer v. Commissioner, 273 U. S. 103, 113; United States v. Northern Pacific R. Co., 288 U. S. 490, 494; Unemployment Compensation Commission of Alaska v. Aragon, 329 U. S. 143, 155. 6 Section 9 (a) of the Securities Act of 1933, 15 U. S. C. § 771; § 25 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78y; § 24 of the Public Utility Holding Company Act, 15 U. S. C. § 79x; § 10 of the Fair Labor Standards Act, 29 U. S. C. § 210; § 10 (e) of the National Labor Relations Act, 29 U. S. C. § 160 (e). |