upr000063 76

V based upon price trends of which the Commission was entitled to take judicial notice. The Court held that the exact price trend in a given year was not a matter of common notoriety which could be judicially noticed, but in addition to that, the Court held that the Commission could not take judicial notice of facts which it did not disclose to the utility at the hearing. With respect to this matter, the Court said: '”What was dene by the Commission is subject, how­ever, to an objection-even-deeper. Cf. Brown v. New Jersey, 175 U. S. 172, 174, 175, 44 L. ed. 119-121, 20 S. Ct. 77; West v.'Louisiana, 194 U. S. 25$, 262, 263, 4$ L. ed. 965, 969, 970, 24 S. Ct. 650. There has been more than an expansion of the concept of notoriety be­yond reasonable limits. From the standpoint of due pro­cess—the protection of the individual against arbitrary action— a deeper vice is this, that even now we do not know the particular or evidential facts of which the Commission took judicial notice and on which it rested its conclusion. Not only are the facts unknown; there is no way to find them out. When price lists or trade journals or even government reports are put in evidence upon a trial, the party against whom they are offered may see the evidence or hear it and parry its effect. Even if they are copied in the findings without pre­liminary proof, there is at least an opportunity in connection with a judicial review of the decision to challenge the deductions made from them. The opportu­nity is excluded here. The Commission, withholding from the record the evidential facts that it has ga­thered here and there, contents itself with saying that in gathering them it went to journals and tax lists, as if a judge were to tell us, ’I looked at the sta­tistics in the Library of Congress, and they teach me thus and so,* This will never do if hearings and ap­peals are to be more than empty forms.” 26-