The last question of all is the jurisdiction of the administration. Throughout this extended discussion the administration has been seen in the exercise of various powers. Sometimes what was noted was administration by execution; sometimes what was found was administration by legislation; sometimes what was remarked was administration by adjudication. Upon the whole the point of view has been for the most part thus internal; in what way may the administration act? Now, by way of precaution, it will be well to take last of all the other point of view, external; beyond what limits may the administration not act? In a word, this last question is concerned with the extent of the jurisdiction of the administration over all these various questions which it takes upon itself to decide.

$131. Scope of jurisdiction.

A recent case contains the best general discussion of this problem-Rex v. Commissioners [1901] 2 K. B. 879 (1901). Kodak, Limited, an English company, had its

principal place of business in London. The Eastman Kodak Company, a New York company, had its principal place of business in that state. It appeared that 98 per cent. of the capital stock of the American company was owned by the English company; and there was evidence tending to show that the direction over the whole business came from the London office, so that the American company was to all intents the agent of the English company. Upon that view of the matter, the Commissioners for the London district assessed the income tax not only upon all the profits of the English business, but upon all the profits of the American business as well. This was an application for a prohibition.

STERLING, Lord Justice, drew this important distinction: It appears to me that this section of the statutes conferred upon these Commissioners jurisdiction to charge any person carrying on a trade within that district in respect to the whole profits of his trade, whether that trade be wholly or partly carried on within the district; or, in other words, the only essential requisite to the ex istence of the jurisdiction to charge a trader in respect of the whole profits is that he be found within the district carrying on the trade in part. Having jurisdiction to charge in respect to all profits, they have jurisdiction to decide all questions of fact necessary for making the full assessment, and, therefore, to determine the true extent of the trade. In my opinion it is not true to say that the facts found by the Commissioners in the course of an inquiry properly entered upon are the facts which are necessary to give jurisdiction. In my judgment they have not exceeded their jurisdiction.

This same position is taken in an explicit manner upon

the case to be distinguished from the preceding case where there is no jurisdiction. In the Middle Grounds, 7 Land Dec. 255 (1888), there was a question as to the right to a certain tract of land which had been surveyed in a general way by the Land Department. This land in dispute had been patented by the United States to a pre-emption settler. The adverse claimant was the State of Michigan, which based its title under the Swamp Land Act. The department took the position in this case at the outset that it had no jurisdiction any longer, since at all events the title to the land in controversy was out of the United States.

To this effect Secretary VILAS wrote: Whatever alteration has come by accretion and the like is a matter between the parties. The Department seems clearly to have no jurisdiction over the matter or power to take action in any form. All these questions can far better be determined by a judicial tribunal than by this Department. Indeed, no action of the Department would be within its jurisdiction. No further action should be taken by the Department in this matter, but the parties should mutually be left to such proceedings in the courts as they may be advised to take in the maintenance of their respective claims. All action before the Department should be discontinued.101

$132. Administration by execution.

This brings the discussion to the general problem. Let it be supposed that some officer of the administration has extended power over a certain subject matter by the broad provision of some general statute. Then let it be

101 SCOPE OF JURISDICTION.-Gidley v. Palmerston, 3 Brod. & B. 275; Rex v. Commissioners [1901] 2 K. B. 879; Enterprise Ass'n v. Zums

supposed that he does some action in the course of administration, which is close to the line of his authority. It may be granted that he has power to decide matters within his jurisdiction; but it may not be granted that he has power to decide what matters are within his jurisdiction. The distinction may often be a nice one, but its observance is an absolute necessity in point of law.

No law, that is, is to be construed to give to the administration authority to determine whether the jurisdiction exists; but that question is always open to collateral attack in the judicial courts. United States v. Burke, 99 Federal, 895 (1899), is a plain case upon that point. A statute gave to immigration officials power to exclude aliens under certain circumstances of this qualification. Have such officials thereby power to determine whether certain persons who demand admission are aliens or not? No. Have such officials power to determine whether certain aliens are within the disqualifications laid down? Yes. That is the distinction that the judge had in mind in this case.

TOULMIN, the District Judge, said: I am not unmindful of the provision of the statute that in every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, decision of the appropriate Immigration or

tein, 64 Fed. 840; United States v. Burke, 99 Fed. 895; Lee v. Huff, 61 Ark. 494; Pacific Tel. Co. v. Dalton, 119 Cal. 604; State v. Staub, 61 Conn. 553; State v. Gamble, 13 Fla. 9; State v. Bell, 9 Ga. 334; Partlow v. Moore, 184 Ill. 119; Brown v. Porter, 37 Ind. 206; Miller v. Horton, 152 Mass. 540; Wall v. Trumbull, 16 Mich. 228; Newman v. Elam, 30 Miss. 507; McCutchen v. Windsor, 55 Mo. 149; State v. Commissioners, 12 Neb. 6; United Lines Tel. Co. v. Grant, 137 N. Y. 7; Long v. Commissioners, 76 N. C. 273; McKinney v. Robinson, 84 Tex. 489; Supervisors v. Catlett's Ex'rs, 86 Va. 158; Brown v. Mason, 40 Vt. 157; Milwaukee Iron Co. v. Schubel, 29 Wis. 444.

Customs Office, if adverse to the admission of such alien, shall be final unless reversed on appeal to the Secretary of the Treasury. Under the decisions the status of any alien and the question of his right to enter the United States is exclusively vested in the executive department of the government; and where it has been legitimately exercised, the courts cannot interfere in behalf of the aliens. But these complainants are not aliens coming into the country within the meaning of the statute; therefore, they are not of that class whose right to remain here can be finally determined by the executive department of the government.

Cases like Miller v. Horton, 152 Mass. 540 (1891), that are upon the line are difficult to deal with. This particular case was an action of tort for killing the plaintiff's horse. The defendants admit the killing, but justify as the members of a Board of Health under an order addressed to the Board by the Commissioners on Contagious Diseases of Animals. This order declared that it was adjudged that the horse had the glanders and that it was accordingly condemned to be killed. The judge before whom the case was tried found that the horse did not have the glanders; but he declined to rule that the defendants had not failed to make out their justification.

The opinion was by Mr. Justice HOLMES: We cannot admit that the legislature has an unlimited right to destroy property without compensation on the ground that destruction is not an appropriation to public use. Certainly the legislature could not declare that all animals are nuisances and order them to be killed outright without compensation. It does not attempt to do so. As we have said, it only declares diseased animals to be nui

sances.