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well as to the Government medical facts shall be brought out by the skilled in that particular science which will serve as a guide to the Commissioner of Pensions in arriving at his conclusions; but the Commissioner of Pensions is not bound by this expert opinion. He renders his decision upon all the evidence in the case which touches upon the points in issue. That the Medical Referee should not be bound by ratings affixed by the Boards of Surgeons ought to be apparent upon the same course of reasoning. He is doubtless often aided by the opinion of the examining surgeons as to how much to use the words of the statute in their judgment, as he must and does arrive at his conclusion by reason of the facts shown. It should, however, be remembered that neither the opinion of the examining surgeons nor the Medical Referee's opinion is final. It is the Commissioner of Pensions who finally passes upon the question; and he reaches his conclusions upon all the evidence, using as means to that end all of the various agencies that are placed at his disposal, potent among which are the facts and opinions as set out in the certificate of the examining boards and the judgment of the Medical Referee.

This opinion is worth quotation at this length, because it sets forth in the clearest manner possible the view of the administration. Upon the whole this ruling is one of the most perspicuous statements of the situation in administration. In administration the officers at the bottom of the hierarchy decide the questions that arise in administration, and it is the usual practice that the officers at the top of the hierarchy do not act unless there is an appeal. That is the internal law of the administra


tion—to facilitate the conduct of its business. But the fact remains that the officer at the top can always come down upon the officer at the bottom, set that officer aside and decide upon the matter himself. The key to this is that the internal law of administration is in last analysis the discretion of the superior reduced to rules for the ordinary case, free of these rules in the extraordinary

Such is all administration. It is needless to pile case on case for this fundamental principle: that if a matter in which the government involved is given over to an officer for his determination, his decision is final. This is the familiar law of the functions of the administration : that if an officer is invested with a discretionary power to act in behalf of the government, all that he does in the exercise of that discretion is final. This is the foundation of this method of administration in last analysis, as indeed it is the foundation of all powers in administration discretion. This is all that is meant when it is said that an officer has judicial powers in the premises and that his jurisdiction over that subject matter is therefore exclusive.

A case in the administrative law reports that is regarded as a leading authority is Pueblo Case, 5 Land Dec. 483 (1887). This was an application which involved inter alia the recall and cancellation of the patent of the United States to the city of San Francisco and for the issue of a new patent with different boundaries, to-wit, the boundaries of what is known as the Stratton Survey. It was insisted by counsel that the Secretary of Interior has not the power to reverse the action of the Commissioner upon the survey of a land claim pending before him. That involved passing upon the question. The decision, therefore, is a fundamental one: whether the Commissioner of the Land Office was in the determination of controversies independent of the Secretary of Interior.

The opinion of Secretary LAMAR establishes that in this manner: By various acts of Congress the powers of the Department are clearly defined. These acts are, so far as it is necessary for me at present to consider them, embodied in the Revised Statutes. Title XI treats of the Department of the Interior and makes the Secretary of the Interior the head thereof. The third Chapter provides as follows: The Commissioner of the General Land Office shall perform under the direction of the Secretary of Interior all executive duties appertaining to the surveying and sale of the Public Lands of the United States, and also such as relate to private claims of land and the issuing of patents for all grants of land under authority of the government. The position of the applicants against the authoritv of the Secretary to review the decision of the Commissioner of the General Land Office rests upon the ground that the action of the Commissioner is passing upon the correctness of surveys of private land claims is a quasi judicial proceeding, and therefore not subject to review, as no appeal to the Secretary in such cases is specifically provided. Passing upon correctness of private land claims made by subordinate officers necessarily involves the exercise of judgment and may properly, be called a quasi judicial proceeding; but it is none the less a proceeding taken in the discharge of an executive duty of the Commissioner. There seems to be some misapprehension as to the meaning of the term "executive duty." The executive duties of any one of the departments are such as are required of its officers in the administration of the law upon the subjects under its jurisdiction. They are not the less executive duties because they require in their performance the examination of evidence and the exercise of judgment thereon. All executive duties which are anything beyond the performance of ministerial acts involve the exercise of judgment, such as examination, decision and final judgment, but they are not judicial acts. There is hardly an act of any moment performed in an executive department which would not, if such were the case, be taken from the supervision and control of its head. The statutes in placing the whole business of the Department under the supervision of the Secretary invest him with authority to review, reverse, amend, annul or affirm all proceedings in the Department having for their ultimate object to secure the alienation of any part of the public lands or the adjustment of claims to lands.

This leading ruling is quoted at such length because it sets forth in exact language the theory of the administration as to the nature of its adjudication and its function therein.90

90 ADJUDICATION IN CONTROVERSIES.—Evans v. Eaton, 7 Wheat. 434; Murray's Lessee v. Hoboken L. & I. Co., 18 How. 272; United States v. Jordan, 113 U. S. 423; Arnson v. Murphy, 115 U. S. 586; Spencer v. Merchant, 125 U. S. 356; Auffmordt v. Hedden, 137 U. S. 323; Norwood v. Baker, 172 U. S. 269; French v. Barber Asphalt Pav. Co., 181 U. S. 324; Ex parte Bridge Co., 62 Ark. 461; Downer v. Lent, 6 Cal. 94; Raymond v. Fish, 51 Conn. 80; Bureau Co. Sup’rs v. Chicago, etc., R. Co., 44 Ill. 229; Chicago, etc., R. R. v. Atchison Co. Com'rs, 54 Kan. 781; Gatch v. Des Moines, 63 la. 718; Monticello, etc., Co. v. Baltimore, 90 Md. 417; Weimer v. Bunbury, 30 Mich. 201; Nelson Lumber Co. v. McKinnon, 61 Minn. 219; State v. Chicago, etc., R. R., 29 Neb. 412; Central R. R. Co. v. Assessors, 48 N. J. L. 1; Stuart v. Palmer, 74 N. Y. 183; King v. Portland, 38 Ore. 402; Harrisburg v. McPherran, 200 Pa. St. 343; Dietz v. Neenah, 91 Wis. 428; Bartlett v. Wilson, 59 Vt. 23; Violett v. Alexandria, 92 Va. 561; State v. Cheney, 45 W. Va. 478.

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In the present paragraph the executive department is seen with a concurrent jurisdiction vested in it. The condition is that administrative adjudication must precede; but if another examination of the question is wished afterwards before the judicial department, that may be demanded. As the greater includes the less, so if it is constitutional to give an exclusive jurisdiction to the executive department over these contests, there can be, of course, no constitutional objection to the grant of a concurrent jurisdiction to it.

In this connection Cheatham v. United States, 92 U. S. 85 (1875), is worth discussion. A party against whom an assessment was made for an income tax in 1865 appealed therefrom to the ('ommissioner of Internal Revemue, who in 1867 set it aside and ordered a new one, which was made in 1868, and the tax was thereupon collected. In 1869 suit was begun to recover the money; the defense in that suit was that by the statute no suit could be brought against the collector unless begun within six months from the decision of the Commissioner upon the appeal. The question was whether this was a short statute of limitation which ought not to run until the payment, when action accrued, or whether this was an express condition upon the right to sue.

The opinion of the court was by Jr. Justice VILLER: All governments at all times have found it necessary to accept stringent methods for the collection of taxes, and to be rigid in the enforcement of them. These measures are not judicial nor does the government resort ex

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