U.S. Supreme Court EX PARTE BAKELITE CORPORATION, 279 U.S. 438 (1929)

[Page 279 U.S. 438, 448]

The grounds on which the jurisdiction of the Court of Customs Appeals was challenged in that court, and on which a writ of prohibition is sought here, are:

(1) That the Court of Customs Appeals is an inferior court created by Congress under section 1 of article 3 of the Constitution, and as such it can have no jurisdiction of any proceeding which is not a case or controversy within the meaning of section 2 of the same article.

(2) That the proceeding presented by the appeal from the Tariff Commission is not a case or controversy in the sense of that section, but is merely an advisory proceeding in aid of executive action.

The Court of Customs Appeals considered these grounds in the order just stated, and by its ruling sustained the first and rejected the second. 16 Ct. Cust. App. 378, 53 Treasury Decisions, 716.

In this Court counsel have addressed arguments, not only to the two questions bearing on the jurisdiction of the Court of Customs Appeals, but also to the question whether, if that court be exceeding its jurisdiction, this Court has power to issue to it a writ of prohibition to arrest the unauthorized proceedings.

The power of this Court to issue writs of prohibition never has been clearly defined by statute1 or by decisions. [Footnote 2] And the existence of the power in a situation like the present is not free from doubt. But the doubt need not be resolved now, for, assuming that the power exists, there is here, as will appear later on, no tenable basis for exercising it. In such a case it is admissible, and is common practice, to pass the question of power and to deny the writ because without warrant in other respects. [Footnote 3]

[Page 279 U.S. 438, 450]

tion. Chief Justice Marshall, speaking for the court, said (page 546): 'These Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States.'

That ruling has been accepted and applied from that time to the present in cases relating to territorial courts. [Footnote 4]

[Page 279 U.S. 438, 451]

The United States Court for China and the consular courts are legislative courts created as a means of carrying into effect powers conferred by the Constitution respecting treaties and commerce with foreign countries. They exercise their functions within particular districts in foreign territory, and are invested with a large measure of jurisdiction over American citizens in those districts. [Footnote 6] The authority of Congress to create them and to clothe them with such jurisdiction has been upheld by this Court and is well recognized. [Footnote 7]

Legislative courts also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals. [Footnote 8]

[Page 279 U.S. 438, 452]

Conspicuous among such matters are claims against the United States. These may arise in many ways and may be for money, lands, or other things. They all admit of legislative or executive determination, ana yet from their nature are susceptible of determination by courts; but no court can have cognizance of them except as Congress makes specific provision therefor. Nor do claimants have any right to sue on them unless Congress consents; and Congress may attach to its consent such conditions as it deems proper, even to requiring that the suits be brought in a legislative court specially created to consider them. 9

The Court of Claims is such a court. It was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the debts of the United States. But the function is one which Congress has a discretion either to exercise directly or to delegate to other agencies.

For 65 years following the adoption of the Constitution Congress made it a practice, not only to determine various claims itself, but also to commit the determination of many to the executive departments. In time, as claims multiplied, that practice subjected Congress and those departments to a heavy burden. To lessen that burden Congress created the Court of Claims and delegated to it the examination and determination of all claims within stated classes. [Footnote 10] Other claims have since been included in the delegation, and some have been excluded. But the court is still what Congress at the outset declared it

[Page 279 U.S. 438, 454]

government in the special court organized for that purpose, he may be met with a set-off, counter-claim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judgment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the government to the exercise of the privilege.'

While what has been said of the creation and special function of the court definitely reflects its status as a legislative court, there is propriety in mentioning the fact that Congress always has treated it as having that status. From the outset Congress has required it to give merely advisory decisions on many matters. Under the act creating it all of its decisions were to be of that nature. [Footnote 11] Afterwards some were to have effect as binding judgments, but others were still to be merely advisory. 12 This is true at the present time. [Footnote 13] A duty to give decisions which are advisory only, and so without force as judicial judgments, may be laid on a legislative court, but not on a constitutional court established under article 3.14

[Page 279 U.S. 438, 456]

The authority to create legislative courts finds illustration also in the late Court of Private Land Claims. It was created in virtue of the power of Congress over the fulfillment of treaty stipulations; and its special function was that of hearing and finally determining claims founded on Spanish or Mexican grants, concessions, etc., and embracing lands within the territory ceded by Mexico to the United States and subsequently included within the Territories or New Mexico, Arizona and Utah and the States of Nevada, Colorado, and Wyoming. [Footnote 17] By the treaties of cession the United States was obligated to inquire into private claims to lands within the ceded territory and to respect inviolably those that were valid. Congress at first intrusted the preliminary inquiry to executive officers and required that they make reports whereon it could make the ultimate determinations. This was an admissible mode of dealing with the subject, and many claims were finally determined under it. 18 But later on Congress created the Court of Private Land Claims and charged it with the duty of examining and adjudicating, as between claimants and the United States, all claims not already determined. In United States v. Coe, , 15 S. Ct. 16, that court was held to be a legislative court, and the validity of the act creating it was sustained. And, while that case related to lands in a territory, there can be no real doubt that the same rule would apply were the lands in a state. The obligation of the United States would be the same in either case, and Congress would have the same discretion respecting the mode of fulfilling it. [Footnote 19] In fact, the act creating the court included within its jurisdiction all claims within three states as well as those within three territories, and the court adjudicated

[Page 279 U.S. 438, 457]

all within these limits that were brought before it within the periods fixed by Congress.

The Choctaw and Chickasaw Citizenship Court was another legislative court. It was created to hear and determine controverted claims to membership in two Indian tribes. The tribes were under the guardianship of the United States, which in virtue of that relation was proceeding to distribute the lands and funds of the tribes among their members. How the membership should be determined rested in the discretion of Congress. It could commit the task to officers of the department in charge of Indian affairs, to a commission, or to a judicial tribunal. As the controversies were difficult of solution and large properties were to be distributed, Congress chose to create a special court and to authorize it to determine the controversies. In Wallace v. Adams, 204 U.S. 415, 27 S. Ct. 363, this was held to be a valid exertion of authority belonging to Congress by reason of its control over the Indian tribes. And it is of significance here that in so ruling this Court approvingly cited and gave effect to the opinion of Chief Justice Taney in Gordon v. United States respecting the status of the Court of Claims.

Before we turn to the status of the Court of Customs Appeals it will be helpful to refer briefly to the Customs Court. Formerly it was the Board of General Appraisers. Congress assumed to make the board a court by changing its name. There was no change in powers, duties, or personnel. [Footnote 20] The board was an executive agency charged with the duty of reviewing acts of appraisers and collectors in appraising and classifying imports and in liquidating and collecting customs duties. [Footnote 21] But its functions,

[Page 279 U.S. 438, 458]

although mostly quasi judicial, were all susceptible of performance by executive officers, and had been performed by such officers in earlier times.

The Court of Customs Appeals was created by Congress in virtue of its power to lay and collect duties on imports and to adopt any appropriate means of carrying that power into execution. [Footnote 22] The full province of the court under the act creating it is that of determining matters arising between the government and others in the executive administration and application of the customs laws. These matters are brought before it by appeals from decisions of the Customs Court, formerly called to Board of General Appraisers. [Footnote 23] The appeals include nothing which inherently or necessarily requires judicial determination, but only matters the determination of which may be, and at times has been, committed exclusively to executive officers. True, the provisions of the customs laws requiring duties to be paid and turned into the treasury promptly, without awaiting disposal of protests against rulings of appraisers and collectors, operate in many instances to convert the protests into applications to refund part or all of the money paid;24 but this does not make the matters involved in the protests any the less susceptible of determination by executive officers. [Footnote 25] In fact, their final determination has been at times confided to the Secretary of the Treasury, with no recourse to judicial proceedings. [Footnote 26]

[Page 279 U.S. 438, 460]

the courts became legislative courts just as if such a provision had been included.

Another feature much stressed is a provision purporting to authorize temporary assignments of circuit and district judges to the Court of Customs Appeals when vacancies occur in its membership or when any of its members are disqualified or otherwise unable to act. This, it is said, shows that Congress intended the court to be a constitutional one, for otherwise such assignments would be inadmissible under the Constitution. But, if there be constitutional obstacles to assigning judges of constitutional courts to legislative courts, the provision cited is for that reason invalid, and cannot be saved on the theory that Congress intended the court to be in one class when under the Constitution it belongs in another. Besides, the inference sought to be drawn from that provision is effectually refuted by two later enactments-one permitting judges of that court to be assigned from time to time to the superior courts of the District of Columbia,29 which are legislative courts, and the other transferring to that court the advisory jurisdiction in respect of appeals from the Patent Office which formerly was vested in the Court of Appeals of the District of Columbia. [Footnote 30]

[Page 279 U.S. 438, 461]

3 of the Constitution, for this section applies only to constitutional courts. Even if the proceeding is not such a case or controversy, the Court of Customs Appeals, being a legislative court, may be invested with jurisdiction of it, as is done by section 316.

Of course, a writ of prohibition does not lie to a court which is proceeding within the limits of its jurisdiction, as the Court of Customs Appeals appears to be doing in this instance.

Prohibition denied. Footnotes

Footnote 1 See Rev. Stat, 688, 716; U.S.C. title 28, 342, 377 (28 USCA 342, 377).

Footnote 2 See Ex parte City Bank of New Orleans, 3 How. 292, 311, 322; Ex parte Joins, 191 U.S. 93, 102, 24 S. Ct. 27, and cases cited; Ex parte United States, , 33 S. Ct. 170.

Footnote 3 Ex parte City Bank of New Orleans, 3 How. 292, 311, 322; Smith v. Whitney, 116 U.S. 167, 175, 176 S., 6 S. Ct. 570; Ex parte Joins, 191 U.S. 93, 102, 24 S. Ct. 27; In re Rice, , 15 S. Ct. 149; In re Huguley Manufacturing Co., 184 U.S. 297, 22 S. Ct. 455; Ex parte Oklahoma, 220 U.S. 191, 31 S. Ct. 426; Ex parte Oklahoma ( No. 2), 220 U.S. 210, 31 S. Ct. 431; Ex parte Southwestern Surety Insurance Co., 247 U.S. 19, 38 S. Ct. 430; Ex parte Tiffany, 252 U.S. 32, 40 S. Ct. 239: Ex parte Peterson, 253 U.S. 300, 40 S. Ct. 543; Ex parte Chicago, Rock Island & Pacific Ry. Co., 255 U.S. 273, 41 S. Ct. 288; Petition of United States, 263 U.S. 389, 44 S. Ct. 130.

Footnote 4 Benner v. Porter, 9 How. 235, 242 (13 L. Ed. 119); Clinton v. Englebrecht, 13 Wall. 434, 447 (20 L. Ed. 659); Hornbuckle v. Toombs, 18 Wall. 648, 655 (21 L. Ed. 966); Good v. Martin, 95 U.S. 90, 98 (24 L. Ed. 341); Reynolds v. United States, 98 U.S. 145, 154 (25 L. Ed. 244); City of Panama, 101 U.S. 453, 460 (25 L. Ed. 1061); McAllister v. United States, 141 U.S. 174, 180 et seq., 11 S. Ct. 949 (35 L. Ed. 693); Romeu v. Todd, 206 U.S. 358, 368, 27 S. Ct. 724 (51 L. Ed. 1093).

Footnote 5 Keller v. Potomac Electric Power Co., , 442-444, 43 S. Ct. 445 (67 L. Ed. 731); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 700, 47 S. Ct. 284 (71 L. Ed. 478). And see Butterworth v. United States ex rel. Hoe, 112 U.S. 50, 60, 5 S. Ct. 25 (28 L. Ed. 656); United States v. Duell, 172 U.S. 576, 582, 583 S., 19 S. Ct. 286 (43 L. Ed. 559).

Footnote 6 See title 22, cc. 2 and 3, U.S.C. (22 USCA 141-183, 191-202).

Footnote 7 In re Ross, , 11 S. Ct. 897, 35 L. Ed 581; American China Development Co. v. Boyd (C. C.) 148 F. 258: Biddle v. United States ( C. C. A.) 156 F. 759; Cunningham v. Rodgers (C. C. A.) 171 F. 835; Swayne & Hoyt v. Everett (C. C. A.) 255 F. 71; Fleming v. United States (C. C. A.) 279 F. 613; Wulfsohn v. Russo-Asiatic Bank (C. C. A.) 11 F.(2d) 715; 2 Moore's Digest International Law, 262; 1 Hyde, International Law, 264.

Footnote 8 Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 280, 284 (15 L. Ed. 372); Grisar v. McDowell, 6 Wall. 363, 379 (18 L. Ed. 863); Auffmordt v. Hedden, 137 U.S. 310, 329, 11 S. Ct. 103 (34 L. Ed. 674); In re Fassett, 142 U.S. 479, 486, 487 S., 12 S. Ct. 295 (35 L. Ed. 1087); Nishimura Ekiu v. United States, 142 U.S. 651, 659, 660 S., 12 S. Ct. 336 (35 L. Ed. 1146); Astiazaran v. Santa Rita Land & Mining Co., , 81-83, 13 S. Ct. 457 (37 L. Ed. 376); Passavant v. United States, 148 U.S. 214, 219, 13 S. Ct. 572 (37 L. Ed. 426); Fong Yue Ting v. United States, 149 U.S. 698, 714, 715 S., 13 S. Ct. 1016 (37 L. Ed. 905); United States v. Coe, 155 U.S. 76, 84, 15 S. Ct. 16 (39 L. Ed. 76); Wallace v. Adams, 204 U.S. 415, 423, 27 S. Ct. 363 (51 L. Ed. 547); Gordon v. United States, 117 U.S. 697, 699, Append.; La Abra Silver Mining Co. v. United States, , 459-461, 20 S. Ct. 168 (44 L. Ed. 223); United States v. Babcock, 250 U.S. 328, 331, 39 S. Ct. 464 (63 L. Ed. 1011); Luckenbach S. S. Co. v. United States, 272 U.S. 533, 536, 47 S. Ct. 186 ( 71 L. Ed. 394).

Footnote 9 United States v. Ferrira, 13 How. 40, 47; De Groot v. United States, 5 Wall. 419, 431-433; Ex parte Russell, 13 Wall. 664, 668; McElrath v. United States, , 440; United States v. Louisiana, 123 U.S. 32, 36, 37 S., 8 S. Ct. 17; Schillinger v. United States, 155 U.S. 163, 166, 15 S. Ct. 85; Luckenbach S. S. Co. v. United States, 272 U.S. 533, 536, 47 S. Ct. 186.

Footnote 10 Act Feb. 24, 1855, c. 122, 10 Stat. 612.

Footnote 11 Act Feb. 24, 1855, c. 122, 7-9, 10 Stat. 612.

Footnote 12 Acts March 3, 1863, c. 92, 3, 5, and 7, 12 Stat. 765; March 17, 1866, c. 19, 14 Stat. 9; March 3, 1883, c. 116, 1 and 2, 22 Stat. 485; Jan. 20, 1885, c. 25, 6, 23 Stat. 283; March 3, 1887, c. 359, 12-14, 24 Stat. 505.

Footnote 13 Title 28, 254, 257, U.S.C. (28 USCA 254, 257).

Footnote 14 United States v. Ferreira, 13 How. 40, 48-51; Gordon v. United States, 117 U.S. 697 Append.; In re Sanborn, , 13 S. Ct. 577; Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250; Keller v. Potomac Electric Co., 261 U.S. 428, 442- 444, 43 S. Ct. 445; Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 698, 47 S. Ct. 284; Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 74, 47 S. Ct. 282; Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123, 134, 47 S. Ct. 511; Willing v. Chicago Auditorium Ass'n, 277 U.S. 274, 289, 48 S. Ct. 507.

Footnote 15 21 Op. Attys. Gen. 449.

Footnote 16 James v. United States, 202 U.S. 401, 407, 408 S., 26 S. Ct. 685.

Footnote 17 Act March 3, 1891, c. 539, 26 Stat. 854.

Footnote 18 Tameling v. U. S. Freehold Co., , 662-663; Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80, 81-82, 13 S. Ct. 457.

Footnote 19 Grisar v. McDowell, 6 Wall. 363, 379.

Footnote 20 Act May 28, 1926, c. 411, 44 Stat. 669.

Footnote 21 Acts June 10, 1890, c. 407, 12-18, 26 Stat. 131, 136; August 5, 1909, c. 6, re-enacted sections 12-17, 36 Stat. 11, 98; September 21, 1922, c. 356, 518, 42 Stat. 858, 972; title 19, 381, 383, 398-402, 404-406, U.S.C. (19 USCA 381, 383, 398-402, 404-406).

Footnote 22 Constitution, art. 1, 8, cls. 1 and 18; Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 281.

Footnote 23 Act August 5, 1909, c. 6, 28, 36 Stat. 11, 105; title 28, 301- 311, U.S.C. (28 USCA 301-311).

Footnote 24 Title 19, 386, 396-399, 407, 408, U.S.C. (19 USCA 386, 396- 399, 407, 408).

Footnote 25 Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 280-281; Auffmordt v. Hedden, 137 U.S. 310, 329, 11 S. Ct. 103; Fong Yue Ting v. United States, 149 U.S. 698, 714, 715 S., 13 S. Ct. 1016.

Footnote 26 Cary v. Curtis, 3 How. 236, 242, 245-246.

Footnote 27 Act June 18, 1910, c. 309, 36 Stat. 539, 540.

Footnote 28 Acts May 7, 1800, c. 41, 3, 2 Stat. 58; January 11, 1805, c. 5, 3, 2 Stat. 309; February 3, 1809, c. 13, 3, 2 Stat. 514.

Footnote 29 Act September 14, 1922, c. 306, 5, 42 Stat. 837, 839; title 28, 22, U.S.C. (28 USCA 22).

Footnote 30 Act March 2, 1929 (28 USCA 301a, 309a, 312).