should not be subject to review by a court unless such conclusion in some way violates a law of the land. It should not be subject to attack because in the eyes of the court it may or may not have been sustained by the weight of the evidence presented. In the event, however, that the commission is a judicial body, the conclusion is more likely to be set aside because it was not sustained by the preponderance of evidence that may have been introduced. So, too, if the functions of a commission are regarded as judicial on the one hand or executive on the other, there is likely to be a great difference in the law of appealing from or reviewing the findings and decisions of the commission. The law seems to have been fairly and definitely settled as to the powers of the court to review and set aside the findings of the commission where it has been held to be an administrative body. It is not clear, however, what the powers of a higher court may be in reviewing or setting aside the findings of a commission where it is regarded as a judicial or legislative body.

In the case of Burfenning vs. Chicago, St. Paul, etc. Ry.,' the Supreme Court held that the findings of the land commission were final and could not be reviewed. The court said in that opinion that it had been affirmed over and over again that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. This has been affirmed by a long series of cases.3

So, too, in the immigration cases, where the immigration inspector passes upon one of the most important of all possible questions from a governmental point of view that of citizenship it has been held that his finding is not subject to review. In the case of United States vs. Tu Toy, the immigration inspector had held that the petitioner was an alien, born in China, and that he was admitted to come into the United States in violation of the immigration act, and therefore had ordered him to be deported. The court, in a decision rendered by Mr. Justice Holmes, there held that the decision of the department was final, whatever the grounds on which the right to enter the country was claimed. And the court was apparently of the opinion that the decision of the Secretary of Commerce and Labor in the matter was conclusive and not subject to review.5

In the State of Illinois this point has been established by innumerable

1 163 U.S. 321, 16 Sup. Ct. 1018 (1896).

2 See Bates & Guild Co. vs. Payne, 194 U.S. 106, 24 Sup. Ct. 595 (1904); Heath vs. Wallace, 138 U.S. 573, 11 Sup. Ct. 380 (1891).

See American School of Magnetic Healing vs. McAnnulty, 187 U.S. 94, 23 Sup. Ct. 35 (1902); Public Clearance House vs. Coyne, 194 U.S. 497, 508, 24 Sup. Ct. 789 (1904). 198 U.S. 253, 25 Sup. Ct. 644 (1905).

See also Edsell vs. Mark, 179 Fed. 292 (1910); Lem Moon Sing vs. United States, 158 U.S. 538, top p. 544, 15 Sup. Ct. 967 (1895); United States vs. Sing Tuck, 194 U.S. 161, 24 Sup. Ct. 621 (1903); Yamataya vs. Fisher, 189 U.S. 86, 23 Sup. Ct. 611 (1903).

decisions. Thus in the case of People ex rel. Hayes vs. City of Chicago the court said:

1

It makes no difference whether the review is attempted by certiorari or in a petition for mandamus; the inquiry on our part and on the part of the Circuit and Superior Courts is limited to the questions whether the Commission had jurisdiction and whether it followed the form of prodecure legally applicable in such cases. This is what the Supreme Court said in People vs. Lindblom, 182 Ill. 241, and we have repeated in the Heaney case and in other cases.

With the justice or injustice of the Commission's findings and sentence the courts have nothing to do, nor with the severity of the punishment, provided always that the findings and action are within its jurisdiction and the proceedings regular.

And numerous authorities have held that an administrative commission is not bound by the ordinary technical rules of evidence or procedure.2

To make the working of our commissions efficient and expeditious in order that they may give satisfaction to the community as a whole, and be a benefit to our times, they must be relieved from the technicalities and delays that have surrounded our courts. Technicality has been the mother of delay in our courts. In this great branch of our government the law is at the threshold of new interpretation. It is to be hoped that these laws will be interpreted in a broad and comprehensive manner so that the working of the commission will not be interfered with, and may result in the greatest possible benefit to us.

The death-knell of the laissez faire doctrine that prevailed at the end of the eighteenth century and the beginning of the nineteenth century has been sounded. The commission has been instrumental in burying it. It is developing, as a public servant, the technical man. Commissions have been created where technical knowledge is of the greatest possible value and necessity. So long as commissions continue to give satisfaction, we must expect that the pubic will demand new commissions from time to time touching new branches of industry and society. And so we are rapidly coming to be governed by commissions.

1142 Ill. App. 103 (1908).

2 See Joyce vs. City of Chicago, 216 Ill. 466, 75 N.E. 184 (1905); City of Chicago vs. People ex rel. Gray, 210 Ill. 84, 92, 71 N.E. 816 (1904); People ex rel. Maloney vs. Lindblom, 182 Ill. 241, 244, 55 N.E. 358 (1899); People ex rel. Weston vs. McClave, 123 N.Y. 512, 25 N.E. 1047 (1890); Avery vs. Studley, Mayor, 74 Conn. 272, 50 Atl. 752 (1901); State ex rel. McDonald vs. Corteney, 23 S.C. 180 (1885). An analysis will show that the United States immigration, land, and post office cases are to the same effect.

CONCLUSIVENESS OF ADMINISTRATIVE DETERMINATIONS IN THE FEDERAL GOVERNMENT

BY THOMAS REED POWELL OF THE LAW SCHOOL OF
COLUMBIA UNIVERSITY

(From the American Political Science Review, August, 1907,
Vol. I, pp. 583 ff.)

The Federal Constitution provides that no person shall be deprived of life, liberty or property without due process of law, and vests in the Federal Supreme Court the ultimate power to determine what is due process. The legality of any interference with person or property may always be questioned in judicial proceedings, and therefore depends, in the last analysis, upon its conformity to a rule of law laid down by the courts.

The most usual method of disturbing the individual in the enjoyment of his personal and property rights is by judicial proceedings, and no person without authority of some branch of the government can constitutionally imprison him or permanently appropriate his property by any other means. Conceivably, the doctrine might have obtained that the government and its agents acting in official capacities must also have recourse to the courts in any undertaking affecting private rights. But "due process" has been interpreted as meaning process in conformity with certain fundamental principles, rather than any specific and required mode of procedure. The courts have held that, in certain instances, the government may interfere with private rights through the action of its administrative agents, and that such agents may be vested with the power of final and conclusive determination of the facts on which their action is based.

There are, of course, two limitations upon this administrative power, one legislative, the other judicial, or, more correctly, constitutional. The Constitution itself vests in the executive branch of the government, power to act in several matters which necessarily have an indirect effect upon private rights, (Luther vs. Borden, 7 Howard 1), but the authority to determine finally questions directly affecting such rights must depend upon express legislative enactment.

Further, it remains for the judiciary to determine whether such enactment conforms to the requirement of the Constitution.

No thoroughly satisfying and all inclusive definition of due process has ever been evolved. We can best understand the real value of the constitutional provision by ascertaining what deeds may be done in its name.

An examination of the cases will show the theories upon which this administrative power is based, the distinction between determinations of fact and the decision of matters of law or application of rules of law to determine facts, the control which the courts retain over administrative procedure, and the limitations on the legislature in respect to the objects for which the power may be conferred.

I. DETERMINATIONS AFFECTING PROPERTY

The leading case for the doctrine that "due process of law" does not of necessity require judicial proceedings is Murray's Lessee vs. the Hoboken Land and Improvement Co., 18 Howard 272 (1856). It was there decided that Congress might clothe the administration with power to determine the amount due from a government officer, and to enforce its collection by means of a distress warrant, issued by the solicitor of the treasury, without resort to judicial process. The decision was reached the more easily because such summary methods had long been employed and the legislative construction of the Constitution was therefore entitled to weight, and because the matter was one of the internal law of administration, where discretionary and arbitrary power in superior officers is essential to administrative discipline and effectiveness. "Due process" was defined as having the same meaning as "the law of the land." It was asserted that the law of the land had long authorized more summary procedure for the collection of public than for the collection of private debts, and the distinction between the two was declared to be founded on "imperative necessity."

The same principle was applied where the administration was given power to act summarily in collecting a tax from a citizen, not a member of the administration, by a warrant issued by the collector. Springer vs. U.S., 102 U.S. 586 (1880). Precedent and governmental necessity were both invoked in support of the decision. The court said: "The power to distrain personal property for the payment of taxes is almost as old as the common law"; and, further on: "The prompt payment of taxes is always important to the public welfare. It may be vital to the existence of a government. The idea that every taxpayer is entitled to the delays of litigation is unreason. If laws here in question involve any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government."

It is not to be inferred, however, that the administration is subject to no judicial restraints. The government secured title through administrative action, but to obtain possession, it was compelled to resort to judicial proceedings, in which such questions as the legality

of the tax, the authority of the officer and the ownership of the land could be raised and passed on adversely to the administration.

In other instances, the finality of administrative determinations of fact has been sustained upon the principle that, when a matter is confided to a special tribunal, its decision within its authority is conclusive on all others. Johnson vs. Towsley, 13 Wall. 72 (1871). In this case, the expression was obiter, because the court reviewed matters of law upon which the administration was held to have erred, but the opinion is of value as an indication that the court based the administrative power on the general rule of law stated, and not upon an interpretation of the statute. In Smelting Co. vs. Kemp, 104 U.S. 636 (1881), the principle was fairly laid down. To impeach the validity of a land patent, the defendant offered in evidence the record of the proceedings in the land department, as tending to show that, owing to the quantity of land in the claim and the method of locating it in order to obtain the patent, the land office had no authority in law to proceed as it did. The evidence was, however, held inadmissible, on the ground that the decision of the land department of facts within its jurisdiction was final and not to be reviewed by the courts. The patent was said to be in the nature of an official declaration by that branch of the government to which the alienation of the public lands under the law was intrusted, that all the requirements preliminary to its issue had been complied with.

The extent of the doctrine was stated by Mr. Justice Field, as follows:

A patent, in a court of law, is conclusive as to all matters properly determinable by the land department, when its action is within the scope of its authority, that is, when it has jurisdiction under the law to convey the land. In that court the patent is unassailable for mere errors of judgment. Indeed, the doctrine as to the regularity and validity of its acts, where it has jurisdiction, goes so far that if in any circumstances under existing law a patent would be held valid, it will be presumed that such circumstances existed.

This case suggests and the preceding one decides that this power of final determination is confined strictly to the decision of those facts within the jurisdiction vested by the statute in the special tribunal. Though, by an erroneous finding of fact, the department may grant a patent under circumstances not contemplated by the statute, its action when based on a misinterpretation of law or the decision of facts not committed to its determination, may be set aside in judicial proceedings. To quote again from Smelting Co. vs. Kemp: On the other hand, a patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that the department had no jurisdiction to dispose of the lands; that is, that