cept in extreme cases to the courts for that purpose. The revenue measures of every sovereign government constitute a system which provides for its enforcement by officers commissioned for that purpose. In this country this system provides safeguards of its own against mistake, injustice or oppression in the administration of the revenue laws. Such appeals are allowed to specified tribunals as the law-makers deem expedient. Such remedies also for recovering back taxes as may seem wise are provided. In these respects the United States have enacted a system of corrective justice as well as a system of taxation. In both these extremes of the internal revenue, that system is intended to be complete. The government has the right to prescribe the conditions on which it will subject itself to the judgment of the courts; while the free course of remonstrance and appeal may be allowed within the departments, that is all a statutory matter. The general government has wisely made the payment of the tax claim, whether customs or internal revenue, a condition precedent to access to the court. The objecting party can then take his appeal. We regard this as a condition on which alone the government consents to litigate the lawfulness of the original tax. It is not a hard condition. Few governments

have conceded such a right on any condition.

This condition of the law is seen in Nichols v. United States, 7 Wall. 122 (1868). The statute provided in that case that no action could be maintained against any collector to recover the amount of duties paid under protest unless the said protest was made in writing and signed by the claimant at or before the payment of the duties, setting forth distinctly and specifically the grounds of objection to the payment thereof. Notwith

Adm. Law-22.

standing this, Nichols & Company, after having paid the duties with no protest in the matter, brought suit against the United States for the over-payment in the Court of Claims. The question was then whether this protest was a condition precedent, indispensable in bringing suit.

The court held that this was the exclusive method. Mr. Justice DAVIS said: The prompt collection of the revenue and its faithful application is one of the most vital duties of the government. Congress has from time to time passed laws on the subject of revenue, which not only provide for the manner of its collection but also point out a way in which errors may be corrected. These laws constitute a system which Congress has provided for the benefit of those persons who complain of illegal assessment of taxes and illegal exactions of duty. In the administration of the tariff laws, as we have seen, the Secretary of Treasury decides what is due on a specific importation of goods; but if the importer is dissatisfied with this decision, he can contest the question in a suit against the Collector, if before he pays the duties he tells the officers of the law in writing why he objects to that payment. If the importer does not protest, his right of action is gone. The mischiefs that would result if the aggrieved party could disregard the provisions in the system devised for his security and benefit and sue at any time in the Court of Claims forbid the idea that Congress intended to allow any other mode to redress a supposed wrong in the operation of the revenue laws than is given in them.91

In certain cases the law stands that although the mat

91 CONCURRENT.-Nichols v. United States, 7 Wall, 122; Averill v.

ter may be brought before the administration for its adjudication, it need not be so. A suit may be brought against the officer in the ordinary courts of law at any time. That indeed is the situation unless there is statutory provision such as has been seen in the cases that have just been discussed. One of the best known cases upon that point is United States v. Harmon, 147 U. S. 268 (1893). This was a suit brought in the Circuit Court by a United States marshal to recover against the United States certain fees and disbursements which had been forwarded by him to the First Auditor of the Treasury and by him allowed, and then by him to the First Comptroller, and by him disallowed. The act which gave the Circuit Court jurisdiction withheld claims rejected by any department authorized to determine the

same.

Whether this subject matter was one upon which a Comptroller had power of final determination was therefore the issue. Upon that Mr. Justice BLATCHFORD said: The action of the accounting officers has never been considered as a conclusive determination when the question has been brought before a Court of Justice. The laws themselves, after providing that the balances certified to the heads of Departments by the Comptroller upon

Smith, 17 Wall. 90; Cheatham v. United States, 92 U. S. 85; Snyder v. Marks, 109 U. S. 189; Oberteuffer v. Robertson, 116 U. S. 515; Auffmordt v. Hedden, 137 U. S. 324; Saltonstall v. Russell, 152 U. S. 633; Medbury v. United States, 173 U. S. 495; Eslava v. Jones, 83 Ala. 139; Woolfork v. Buckner, 60 Ark. 163; McCormick v. Burt, 95 Ill. 263; Spitznogle v. Ward, 64 Ind. 30; Ferry v. Campbell, 110 Ia. 290; Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487; St. Joseph v. McCabe, 58 Mo. App. 542; McDaniel v. Tebbetts, 60 N. H. 497; Adams v. Ives, 63 N. Y. 650; American Pavement Co. v. Wagner, 139 Pa. St. 623; Heth v. Radford, 96 Va. 272; Hubbard v. Kelley, 8 W. Va. 49; Druecker v. Salomon, 21 Wis. 621.

the settlement of public accounts shall not be subject to be modified by the heads of the Departments but shall be conclusive upon the executive branch of the government, adds in unequivocal terms that the same shall be subject to revision only by proper courts. That is, the force of this adjudication is administrative only-internal; it has no judicial force external.

An analogous situation is seen in Morgan v. Daniels, 153 U. S. 120 (1894). Daniels in his suit against Morgan asserted in his bill that he was the original inventor, but that the Commissioner of Patents had declared Daniels to be first inventor. The suit was brought under an express statute which gave a person aggrieved by a refusal of the Patent Office this remedy by injunction to establish his right. The contention of counsel was that the prior decision of the Patent Office should stand unless the testimony should show beyond any reasonable doubt that that decision had been erroneous.

ner:

Mr. Justice BREWER dealt with the case in this manThis is something different from a mere appeal. It is an application to the Courts to set aside the action of one of the executive departments of the government. The determination of the Patent Office has given to the defendant the exclusive rights of a patentee. A new proceeding is now instituted in the Courts—a proceeding to set aside the conclusions reached by an administrative department, and to give to the plaintiff the rights there awarded to the defendant. Upon principal authority it must be laid down as a rule that the decision by the Patent Office must be accepted as controlling upon that question of fact, unless the contrary be established by testimony which in character and amount carries thorough conviction.

The one

There are then these two classes of cases: holds the adjudication of the administration final upon all the world; the other holds the adjudication of the administration final only upon the administration. The solution of this puzzle is that this is all a question of statute, to what extent the adjudication of the administration shall be final. If the Legislature definitely enacts that the decision of the administration shall be final, that decision is not open to a collateral attack. But if the Legislature does not so provide, it will not be implied that the decision of the administration is beyond collateral attack.92

§ 119. Conclusion.

In all adjudication by the administration upon close examination there are signs of the administrative nature of the proceedings. Things are done in administrative adjudication which could never be done in judicial process. Principles are violated in administrative process which are fundamental in the courts. Oftentimes the whole solemn procedure is upset so that there may be prompt administration. All this can mean but one thing; and that is that this process is nothing more nor less than administration. This will be seen upon an analysis of the nature of the processes of the administration to which the discussion now proceeds.

92 ALTERNATIVE.-Collector v. Hubbard, 12 Wall. 15; Erskine v. Hohnbach, 14 Wall. 616; United States v. Harmon, 147 U. S. 268; Morgan v. Daniels, 153 U. S. 126; Wisconsin Cent. Ry. v. United States, 164 U. S. 205; McCord v. High, 24 Ia. 336; Strickfaden v. Zipprick, 49 Ill. 286; Bright v. Murphy, 105 La. 795; Thomas v. Owens, 4 Md. 189; Maxwell v. Pike, 2 Me. 8; Gage v. Currier, 4 Pick. 399; Williams v. Weaver, 75 N. Y. 32; Sexton v. Leliorne, 8 Heisk. 14; Milwaukee Iron Co. v. Schubel, 29 Wis. 444.