act are exceedingly benevolent and do real honor to the humanity and justice of Congress, the judges will execute this act in the capacity of commissioners.

The Circuit Court for the district of Pennsylvania at the same time addressed a memorial to the President in which they say: Upon due consideration we have been unanimously of opinion that the court should not proceed. 1st: Because the business directed by this act is not of a judicial nature. 2nd: Because if upon this business the court had proceeded, its judgments might have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deem inconsistent with the independence of the department.

The Supreme Court, however, stood firm and it has been the law of that court ever since that the judiciary would not exercise powers, administrative in last analysis. The various decisions delivered in the course of the growth of the Court of Claims show how strictly the courts hold to this rule. Not until the Court of Claims had been made, in every essential, part of the judicial system would the Supreme Court of the United States entertain any appeal from it. How they stand now upon that position is shown by In Re Sanborn, 148 U. S. 222 (1893). One part of the functions of the Court of Claims was defined as follows: that when any claim or matter may be pending in any of the executive departments which involves controverted questions of law or fact, the head of such department, with the consent of the claimant, may transmit the same to the Court of Claims. When the facts and conclusions of law shall have been found the court shall report its findings to the

department by which it was transmitted. In the present case the claim of Sanborn had been sent from the Department of Interior to the Court of Claims. The court decided that Sanborn was not entitled to recover. Thereupon, he made application to be allowed to appeal to the Supreme Court of the United States, which was denied.

This is not a judgment, said Mr. Justice SHIRAS: Such a finding is not made obligatory upon the department to which it was reported-certainly not so in terms --and so far as we think by any necessary implication. We regard the functions of the Court of Claims in such a case as advisory only. The finding or conclusion reached by that court is not enforceable by any process of execution issuing from the court, nor is it made by statute, the final indisputable basis of action either by the department or by Congress. The application for mandamus must accordingly be denied.

The doctrine at the bottom of these decisions is certainly of a fundamental importance in any conception of the proper distribution of the powers of government. In these particular instances of it the principles are these: the position given to the judiciary department to pass in first instance upon a matter which should later be passed upon in second instance by the executive department was contrary to the constitution in that this process involved the subordination of the judiciary department in this determination, whereas by the constitution all of the three departments must be co-ordinate. From another approach also this legislation was open to constitutional objection: the power of granting pensions was in its nature an administrative power,

since it involved the execution of law; not a judicial power properly, since it did not involve litigation between man and man; it would be therefore contrary to the constitution to force powers not judicial upon the judiciary. Which comes to this: that under our con- . stitution confusion of powers may not be permitted. If a principle like that is once admitted it must be of universal application."

The rule of distribution of functions will always be violated if in the apportionment of powers to an administrative body, powers belonging to any other department are given. For one instance, suppose that an administrative body is given legislative power. That is the case, it seems, in Ex parte Cox, 63 Cal. 21 (1883). The petitioner was convicted of a misdemeanor, the violation of a rule and regulation of a Board of State Agricultural Commissioners. The act establishing that commission declared it had power to enforce rules and regulations in the nature of quarantine to govern the manner of and prohibit the importation into the state of vines or cuttings infected or likely to cause infection. The prisoner had violated some regulation to which the board had attached a penalty. The court ordered his discharge;

18 DISTRIBUTION.-Hayburn's Case, 2 Dall. 409; Gordon v. U. S. 2 Wall. 561; U. S. v. Alire, 6 Wall. 573; In Re Sanborn, 148 U. S. 222; Hempstead v. Underhill's Heirs, 20 Ark. 337; Ex parte Allis, 12 Ark. 101; Ex parte Shrader, 33 Cal. 279; McWhorter v. Pensacola R. R., 24 Fla. 417; Chicago, etc., R. R. v. Jones, 149 Ill. 361; Portland, etc., R. R. v. Grand, etc., R. R., 46 Me. 69; Dow v. Wakefield, 103 Mass. 267; Andrews v. Judge of Probate, 74 Mich. 278; Pacific Exp. Co. v. Cornell, 59 Neb. 364; Atlantic, etc., Co. v. Wilmington, etc., R. R., 111 N. C. 463.

they said: For the purpose of local legislation, legislative functions may be delegated. But the legislature had not authority to confer upon the board the power of declaring what acts should constitute a misdemeanor. The legislative power is vested in the legislature; it cannot be attempted to confer that power upon any officers of the executive department.

As a second instance, suppose an administrative body is given a power which it is plain is judicial. Whether that can be is discussed in Interstate Commerce Commission v. Brimson, 154 U. S. 447 (1894). The petition in this case was based on the twelfth section of the act authorizing the Interstate Commerce Commission to invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses, and the production of documents, books, and papers. The Circuit Court held the provision unconstitutional and void as involving a confusion of the powers of government, giving to an administrative commission the aid of judicial process, and forcing upon the judiciary functions not judicial. The question was whether this was forbidden by the constitution, without which obviously effective enforcement of the interstate commerce laws could not be effected.

Mr. Justice HARLAN recited the provisions of the interstate commerce law at great length; he continued: As the constitution extends the judicial power of the United States to all cases in law and equity, the fundamental inquiry upon this appeal is whether the present proceeding is a case or controversy within the meaning of the constitution. It was clearly competent for Congress to invest the commission with authority to

require the attendance and testimony of witnesses, and the production of books, papers, tariffs, contracts, agreements, and documents relating to any matter committed to that body for investigation. We do not understand that any of these propositions are disputed in this case. The constitutionality of this provision, assuming it to be applicable to a matter that may legally be intrusted to an administrative body for investigation is, we repeat, not disputed, and is beyond dispute. They are issues between the United States and those who seek to obstruct the enforcement of its laws; it thus comes within the judicial power.

This preliminary view of the whole field cannot but establish as a working hypothesis this general rule against the confusion of powers as an elementary doctrine of constitutional law under our system. If this be proved true in entirety for every case that is fairly within its inhibition the consequence in administration will be of the first importance. It will result that the executive department must always be independent of the other departments in its proper sphere; more than that, that all administration must be handed over to the executive department. Of course, it must not be forgotten in the application of this principle that the business of government is a practical matter, not to be too much hampered by the application of some general principle where there is an unsubstantial departure involved in any case. Every scope must be given in the creation of governmental agencies and in the organization of them. The proper place for this principle, it is submitted, is in reserve, to be invoked whenever a substantial departure from the fundamental prin