upon application of the parties, power to take further testimony after the case is brought before it, and to that extent it may be regarded as something in the nature of a new proceeding, yet the proper procedure in deciding the appeal is in no way altered thereby. As the government in this case took no proceedings to review the decision of the Board of General Appraisers, it cannot be heard to object to an affirmance of such decision.

This judgment is proper enough. Clearly the gov ernment has no standing in the Circuit Court; if the proceedings are regarded as begun anew there, that seems the more conclusive; it is only the language that is objectionable, stating that to be a possible condition of affairs that the judiciary department is made appellate over a proceeding initiated in the executive department. In a decision in the next term that point came up squarely for decision. It became a direct issue in this next case whether an appeal could be taken from an executive office to an appellate court. Some expedition there may be in such a combined action of first executive as an inferior tribunal, and then the judiciary as a superior tribunal; but under our differentiation of public powers it seems hardly possible.

The second case is United States v. Duell, Commissioner of Patents, 172 U. S. 576 (1899). In an interference proceeding in the Patent Office between Bernadin and Northall, the Commissioner of Patents decided in favor of Bernadin; whereupon, Northall prosecuted an appeal to the Court of Appeals of the District of Columbia according to the provisions of the statutes. That court awarded Northall priority, reversing the decision of the

Commissioner; notwithstanding which Bernadin applied to the Commissioner to issue the patent to him; but the Commissioner refused to do this in view of the decision of the Court of Appeals, which had been certified to him. Bernadin then applied to the Supreme Court of the District of Columbia for a mandamus to compel the Commissioner to issue the patent in accordance with his prior decision on the ground that the statute providing for an appeal was unconstitutional.

Mr. Chief Justice FULLER delivered the opinion of the court: The contention is that Congress had no power to authorize the Court of Appeals to review the action of the Commissioner in an interference case on the theory that the Commissioner is an executive officer; that his action in determining which of two claimants is entitled to a patent is purely executive; and that, therefore, such action cannot be subjected to the revision of a judicial tribunal. However, the investigation of every claim presented involves the adjudication of disputed questions of fact upon scientific and legal principles, and is therefore essentially judicial in its character, and requires the intelligent judgment of a trained body of skilled officials, expert in the various branches of science and art, learned in the history of invention, and proceeding by fixed rules to systematic conclusions. We agree that it is of vital importance that the line of demarcation between the three great departments of government should be observed; and that each should be limited to the exercise of its appropriate powers; but in the matter of this appeal we find no such encroachment of one department upon the domain of another as to justify us in holding the act in question unconstitutional.

This case is a surprise-an unsatisfactory denouement. Every general principle stated in the case is sound. No better statement of the nature of the various rules requiring a separation of the departments and necessitating a proper distribution of functions can be found in so brief compass as in the last paragraph of this opinion. And yet it is submitted that the conclusion reached in this case is the direct opposite of its principles. It may well be asked with respect: How can there be a more flagrant example of the subordination of one of the great departments to another than is seen in this case, where a judicial court is put over an administrative office, where the action of an executive body is subjected to the revision of a judicial body; for what else can this process of appeal amount to? If this be allowed in this case it is difficult to see why it must not be permitted in every case. And the end of a series of statutes might be to make the Chief Justices and the Associate Justices of the United States pass upon the propriety of every action of the President and Cabinet of the United States-a reductio ad absurdum.

This is not an insistence upon an immaterial thing; it is a holding to the life principle in the rule of the separation of powers. If it be required that the judiciary shall never have more than external relations with the executive, that they may duly act in co-ordination so that each performs its own part and each judges. for itself, well and good. But if it be permitted that the judiciary may interfere in the internal operations of the administration, that makes the executive act in subordination to the judiciary, which cannot be allowed. The importance of this distinction for the administra

tion is this: Under the first supposition, the judiciary can only hold the administration in the wrong if there has been an excess of powers, if the administration has exceeded its jurisdiction, for example. But under the second supposition, the judiciary can revise action of the administration done in pursuance of its discretion, if there has been exercise of powers. In short, the administration may judge in one way in its discretion and the judiciary might now determine the matter in another way. This is contrary to the principle that the judiciary should have no business in the action of the administration; this is contrary to the balance of powers that the administration should be left without its own discretion in its own sphere. Although the judiciary may well entertain issues involving external administrative law, all questions involving internal administrative law should be decided upon by the administration itself, free from the review of any other department.16

$22. Division of functions.

In every government of the United States, then, we find these three departments, the legislative, the executive, and the judicial. Our concern is to separate the executive department from the others, to disentangle the functions of the administration from the others. In a general way the one follows upon the other: For the legislative department in a general way, all legislation

16 SUBORDINATION.-Ex parte Vallandigham, 1 Wall. 243; Gordon v. U. S., 7 Wall. 188; United States v. Lies, 170 U. S. 628; United States v. Duell, 172 U. S. 576; Langenberg v. Decker, 131 Ind. 471; People v. Auditor General, 38 Mich. 746; In re R. R. Commissioners, 15 Neb. 679.

An

-that is what it is most fit for, deliberation; for the judicial department in a general way, all adjudication -that, too, is what it is best formed for, judgment; and for the executive department in the same way, administration that also is what it is adapted for, enforcement. Then does the legislative department alone lay down all rules; does the judiciary decide all issues; does the executive confine itself altogether to action? That is the normal state of things at all events. excellent statement of the scope of this rule of separation of powers is found in Ex parte Allis, 12 Ark. 101 (1870). One Allis presented a petition to this court representing that under and by virtue of an act for rebuilding the penitentiary the Board of Inspectors had entered into a contract with him for the construction. Petitioner then represented what progress he had made in the work he had undertaken. He then stated that he had called upon the Board of Inspectors to certify what work had been done to the Auditor of the State, but that the Inspectors refused to do so upon the ground that he had not complied with his contract; which the petitioner undertook to show was unjust to him by a detailed representation of what materials he had provided, money expended, and work performed by him during the quarter; and thereupon asked mandamus to the Inspectors to compel them to certify his first quarterly instalment.

Mr. Justice STRONG refused the mandamus; in his preliminary dicta he said: If this court has rightful jurisdiction in cases like this it must be found expressed in the Constitution or derived by a just and necessary implication from the expressions used in that instru