this description may constitutionally be conferred on a secretary as well as a commissioner, but is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States."

In the case of Gordon v. United States29 the Supreme Court refused to review the action of the Court of Claims in respect to a claim examined and allowed by it under an act of Congress which provided that no money should be paid out of the Treasury for any claim passed upon by the Court of Claims until after an appropriation therefor had been estimated by the Secretary, of the Treasury and an appropriation to pay it made by Congress. The appeal of Gordon was dismissed on the ground that Congress could not "authorize or require this [the Supreme] court to express an opinion in a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect." "The award of execution," said the Chief Justice, "is a part and an essential part of every judgment passed by a court having judicial power. It is no judgment in the legal sense often without it. Without such an award the judgment would be inoperative and nugatory leaving the aggrieved party without a remedy. It would be merely an opinion which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this Act of Congress." 30

29 2 Wall. 561; 17 L. ed. 921. See, also, 117 U. S. Appex. 697.

30 In the case of Re Sanborn (148 U. S. 222; 13 Sup. Ct. Rep. 577; 37 L. ed. 429) the same doctrine was applied to substantially similar facts. It may be remarked that, though the fourteenth section of the original act of 1863 has been repealed, and the Supreme Court now entertains appeals from the Court of Claims, the judgments are not even now, strictly speaking, self executory, an appropriation by Congress for their payment being required, which appropriations are made at the suggestion of the heads of departments out of whose proceedings the claims have arisen.

§ 752. Judicial Review of Administrative Determinations.

Though, as the foregoing cases show, the courts will not consent to exercise jurisdiction where their decisions are reviewable by administrative officials, they have not refused themselves to review decisions rendered in the first instance by executive organs. In all cases they will, of course, examine, by certiorari or otherwise, whether a given administrative act has been legal in character, that is, whether the agent performing it has had the necessary official power, or whether "due process of law" has been provided. In addition they have been willing, where specific legislative authority has been granted them, to review administrative determinations of fact, when such determinations have required the exercise of functions essentially judicial in character.

31

An excellent illustration of this is the case of United States v. Butterworth in which was sustained the right of appeal to the courts from decisions of the Commissioner of Patents. The court review the patent legislation of Congress and point out that property rights are involved, that the determination of claims for patents involves the adjudication of disputed questions of fact upon scientific or legal principles, the process being essentially judicial in character, and that the court though interposed as an aid to the patent office is not subject to it, its judgments being binding upon the parties, and conclusive upon the patent office itself. "The commissioner cannot question it. He is bound to record and obey it. His failure to refuse to execute by appropriate action would undoubtedly be corrected and supplied by suitable judicial process."

31 See Chapter LXIV.

" 33

32 112 U. S. 50; 5 Sup. Ct. Rep. 25; 28 L. ed. 656.

33 In United States v. Duell (172 U. S. 576; 19 Sup. Ct. Rep. 286; 43 L. ed. 559), decided in 1899, this case was approved and the judicial right of revision stated, if anything, more strongly, the court saying: "We perceive no ground for overruling that case or dissenting from the reasoning of the opinion; and as the proceeding in the court of appeals is an appeal in an interference controversy presents all the features of a civil case, a plaintiff, a defendant, and a judge, and deals with a question judicial in its nature, in respect of which the judgment of the court is final, so far as the particular action of the patent office is concerned, such judgment is none

In Interstate Commerce Commission v. Brimson,34 in which was contested the constitutionality of that section of the Interstate Commerce Act of 1887 which authorized and required the circuit courts of the United States to use their processes in aid of inquiries before the Commission, the general doctrines regarding the circumstances under which aid may be given by the courts to administrative agencies are considered at length.

§ 753. Judicial Powers of Administrative Agents.

From what has gone before it will have been seen that though the courts will not perform administrative acts, there is no constitutional objection to vesting the performance of acts essentially judicial in character in the hands of the executive or admini trative agents, provided the performance of these functions is properly incidental to the execution by the department in question of functions peculiarly its own. Furthermore, as we shall later see, there is, subject to the same qualification, no objection to rendering the administrative determinations conclusive, that is, without an appeal to the courts, provided in general the requirements of due process of law as regards the right of the person affected to a hearing, to produce evidence, etc., have been met.

the less a judgment because its effect may be to aid an administrative or executive body in the performance of duties legally imposed upon it by Congress in execution of a power granted by the Constitution.''

is quoted from Interstate Commerce Commission v. Brimson, 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047.

34 154 U. S. 447; 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047.

The last clause

154 U. S. 447;

CHAPTER LXIV.

CONCLUSIVENESS OF ADMINISTRATIVE DETERMINATIONS.

§ 754. Due Process of Law Does not Demand Determination of Rights in Courts of Law.

Due process of law does not require that personal and property rights shall in all cases be finally determined in courts of law. A leading case upon this point is Murray v. Hoboken Land & Improvement Co.' in which it was held that the issuance of a distress warrant under an act of Congress by the Solicitor of the Treasury of the United States against a delinquent collector was not reviewable by the courts except to determine the legal authority of the officer to issue it. "There are," say the court, "matters involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination but which Congress may or may not bring within the cognizance of the courts of the United States, as it may seem proper. It is true, also, that even in a suit between private persons to try a question of private right, the action of the executive power upon a matter committed to its determination by the Constitution and laws, is conclusive.""

The principle then is, as has been more fully shown in the chapter entitled "Due Process of Law," the prohibition imposed by the Constitution upon both the national and state governments that life, liberty, or property shall not be taken without "due process of law," means not so much that a specific mode of procedure shall be followed, as that in that procedure certain fundamental principles looking to the protection of the individual against oppression and injustice shall be followed. In accordance with this interpretation it has been held that the determination of facts upon which a given right of life, liberty or property may depend, need not necessarily be placed in the hands

118 How. 272; 15 L. ed. 372.

2 Citing Luther v. Borden, 7 How. 1; 12 L. ed. 581; Doe v. Braden, 16 How. 635; 14 L. ed. 1090.

3

of the courts but may be conclusively determined by executive agents. In Murray's Lessee v. Hoboken Land and Improvement Co. above quoted, it was held that Congress might endow an administrative officer with the power to determine the amount due from a government officer, and to enforce its collection, without the intervention of the courts, by a distress warrant issued by the Solicitor for the Treasury. In Springer v. United States a similar authority was granted the executive arm for the collection of a tax from a private citizen, the court saying: "The prompt payment of taxes is always important to the public welfare. It may be vital to the existence of the government. The idea that every taxpayer is entitled to the delays of litigation is unreasonable. If the laws here in question involve any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see the evil was corrected. The remedy does not lie with the judicial branch of the government."

The same finality that has been essential to administrative determinations has been predicated of the decisions of tribunals established under the treaty-making power. In Comegys v. Vasse the court say, referring to the treaty of 1819 between the United States and Spain: "The object of the treaty was to invest the commissions with full power and authority to receive, examine, and decide upon the amount and validity of the asserted claims upon Spain, for damages and injuries. Their decision, within the scope of this authority, is conclusive and final. If they pronounce the claim valid or invalid, if they ascertain the amount, their award in the premises is not re-examinable. The parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim can not be brought again under review, in any judicial tribunal; an amount once

3 Upon this general subject see the excellent article by Professor T. R. Powell in the American Political Science Review for August, 1907, entitled "Conclusiveness of Administrative Determinations in the Federal Government." 4 18 How. 272; 15 L. ed. 372.

5 102 U. S. 586; 26 L. ed. 253.

61 Pet. 193; 7 L. ed. 108.