the law did not provide for selling them, or that they had been reserved from sale or dedicated to special purposes, or had been previously transferred to others. In establishing any of these particulars the judgment of the department upon matters properly before it is not assailed, nor is the regularity of its proceedings called in question; but its authority to act at all is denied, and shown never to have existed."

In these cases in the land department, however, owing to the fact that two conflicting claims may both be based upon administrative determinations and because of the jurisdiction of equity in several matters dealing with real estate, there must always be a wider range of judicial review than in the other administrative determinations which we have to consider. As Mr. Justice Miller queries in Johnson vs. Towsley, cited supra: "What conclusiveness or inflexible finality can be attached to a tribunal whose acts are in their nature so inconclusive?" In referring to the instances where equity has reviewed findings of fact, he repeats the doctrine previously established: "Undoubtedly there has been in all of them some special ground for the exercise of the equitable jurisdiction, for this court does not and never has asserted that all the matters passed upon by the land office are open to review in the courts. On the contrary, it is fully conceded that when these officers decide controverted questions of fact, in the absence of fraud, or impositions, or mistake, their decision on those questions is final, except as they may be reversed on appeal in that department. But we are not prepared to concede that when, in the application of the facts as found by them they, by misconstruction of the law, take from a party that to which he has acquired a legal right under the sanction of those laws, the courts are without power to give any relief." Chief Justice Marshall had held in Polk's Lessee vs. Wendall, 9 Cranch 87 (1815), that when North Carolina had granted certain lands to the United States, reserving the right to complete incipient grants to individuals, the question whether a certain grantee of the State had an incipient title at the time of the cession, went to the title of the grantor and the jurisdiction of the officers passing upon the grant, and remained therefore a question of law for the court. Likewise in Silver vs. Ladd, 7 Wall 219, the court reviewed the interpretation of law by a superior officer in the land department, laid down the correct doctrine and ordered the land conveyed to the one rightfully entitled to it.

The court recognizes the same power of finality in special tribunals to determine facts arising in customs matters. In 1846, in a suit against a collector where the jury appraised the goods at the invoice value and the collector had followed the higher estimate of the appraiser, it was held that the finding of the appraiser governed the case. Rankin vs. Hoyt, 4 How 327.

The case of Bartlett vs. Kane, 16 How 263 (1853), is stronger still, for there, the court denied any review of the appraisement, although it was of the opinion that the method of chemical analysis employed to ascertain the value was not to be relied upon as a safe guide, and was inferior to the plan of fixing the value by ascertaining the cost price in the markets of its production. The court remarked that the appraisers were appointed with power "by all reasonable ways and means" to appraise the value, and that the exercise of the power involved a knowledge, judgment and discretion, and then invoked the general principle "that when power or jurisdiction is delegated to any public officer or tribunal over a subject matter, and its exercise is confined to his or their discretion, the acts so done are binding and valid as to the subject matter." The necessity for the decision was justified in the following language: "The interposition of the courts in the appraisement of importations would involve the collection of the revenue in inextricable confusion and embarrassment."

In Hilton vs. Merritt, 110 U.S. 97 (1884), it was held that "in the absence of fraud, the decision of the customs officers is final and conclusive, and their appraisement, in contemplation of law, becomes, for the purpose of calculating and assessing the duties due to the United States, the true dutiable value of the importation." The plaintiff offered evidence showing the true value of the goods and the experience of the appraisers and the care exercised by them in making the appraisal, but the court ruled that it was immaterial, as it did not tend to show that they were assuming powers not conferred by the statute, but merely carelessness or irregularity in the discharge of their duties. The denial of the right to judicial review was sustained on the principle laid down in Murray's Lessee vs. Hoboken, etc., Co., and the court observed that "if in every suit brought to recover duties paid under protest, the jury were allowed to review the appraisement made by the customs officers, the result would be great uncertainty and inequality in the collection of duties on imports. It is quite possible that no two juries would agree upon the value of different invoices of the same goods."

The power vested in the customs officials was supported on somewhat different grounds in Buttfield vs. Stranahan, 192 U.S. 470 (1904), where the court stated that the plenary power of congress over foreign commerce carried with it absolute power to exclude articles of any particular grade, and that, as no one had a vested right to import, the determination of an administrative board that any specific articles were not up to the standard was in no sense a taking of property, but simply a determination of whether the conditions existed, which conferred the right to import. Under the doctrine of Field vs. Clark, 134 U.S. 649 (1891), it was held proper to delegate to the board the power to fix the standard and to apply it, and further, that its exercise was

not conditioned upon the granting of a hearing to the individual whom the determination was to affect. The administration was allowed to enforce its own determination without judicial process, as in the oftcited case of Murray's Lessee vs. Hoboken, etc., Co.

The same principle underlies the series of cases sustaining the power vested in the postmaster-general to issue fraud orders barring the mail of concerns whose business he deems to be fraudulent, though they are by the statute denied the right to a judicial review of the facts on which his decision is based. In Public Clearing House vs. Coyne, 194 U.S. 497 (1904), the court say that, as the postal service is no necessary part of the civil government, but a public function assumed for the general welfare, congress may annex to its use such conditions as it chooses, classify the recipients of mail matter, and forbid the delivery of letters to such as in its judgment are making use of the mails for the purpose of fraud or deception. As in the case of Buttfield vs. Stranahan, the determination whether a specific article or individual is within the class excluded from the privilege by congress, is held properly vested in the administration, though the statute provides no hearing for the person whom the determination is to affect. The case rests also upon governmental necessity:

If the ordinary daily transactions of the departments which involve an interference with private rights, were required to be submitted to the courts before action was finally taken, the result would entail practically a suspension of some of the most important functions of government. . . . It would practically arrest the executive arm of the government if the heads of departments were required to obtain the sanction of the courts upon the multifarious questions arising in their departments, before action were taken, in any matter which might involve the temporary disposition of private property. Each executive department has certain public functions and duties, the performance of which is absolutely necessary to the existence of the government, but it may temporarily, at least, operate with seeming harshness upon individuals. But it is wisely indicated that the rights of the public must in those particulars override the rights of individuals, provided there be reserved to them an ultimate recourse to the judiciary.

As we have before noted, this ultimate recourse is always available. The limitations upon the reviewing power of the courts are, and must be, in the last analysis, self-imposed ones a restraint which may be thrown off whenever the spirit of the Constitution demands it. But the cases establish clearly that the court will still withhold relief when the only grievance is that the individual did not have a judicial hearing upon the facts on which the administration based its action. in applying the general law which is the source of its jurisdiction and authority.

But those facts, when found, must be such as to justify the action of the administration. Whether upon a determined state of facts the ac

tion taken conforms to the dictates of the statute, remains a question for the courts. School of Magnetic Healing vs. McAnnulty, 187 U.S. 94 (1902). In that case, the postmaster-general, instead of investigating the actual conduct of the complainant's business and holding it fraudulent, based his action in issuing the fraud order, upon the established fact that they offered medical advice founded on the proposition that the mind is largely responsible for physical ailments, and the race possesses the power through proper use of the mind to remedy those ills. The court observed that the statute never meant the question of fraud to depend upon the opinion of the postmastergeneral as to the efficacy of any particular method of healing, and ruled that since the facts found would in no aspect be sufficient to justify his action under the statute and the evidence before him in any view of the facts failed to show a violation of the law, his determination that such violation existed was a pure mistake of law on his part, against which the complainants were entitled to relief.

But the courts will not invariably review the determination of the administration simply because the complainant disputes the correctness of the application of admitted principles of law to a determined state of facts; or rather, the courts will not invariably substitute their application of the law to the facts for the application of the administrative officer. In Bates & Guild Co. vs. Payne, 194 U.S. 106 (1904), it is said:

Where there is a mixed question of law and fact, and the court cannot so separate it as to show clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive.

The necessity for the rule is again invoked: "The consequence of a different rule would be that the court might be flooded with appeals of this kind to review the decision of the postmaster-general in every individual instance." But the court insists on its power to review such determinations, and must in fact consider the law and the facts if properly raised, though they will substitute their determination for that of the postmaster-general only when clearly of the opinion he was wrong.

The construction of the statute given by the administrative officers has a certain presumption in its favor, but as the court says in Houghton vs. Payne, 194 U.S. 88 (1904):

The doctrine does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute.

In that case, the postmaster-general reversed the ruling of his predecessors as to the classification of certain mail matter, and, though

it was strongly urged that the doctrine of contemporaneous construction should be applied, the court ruled that such doctrine as a rule of interpretation was not an absolute one, and held that the subsequent ruling of the department was too clearly the one in conformity to the statute, to justify them in approving of the former classification, notwithstanding the length of time such classification had obtained.

METHODS OF JUDICIAL REVIEW IN RELATION TO THE EFFECTIVENESS OF COMMISSION CONTROL1

BY OSCAR L. POND OF THE INDIANAPOLIS BAR

(From Annals of the American Academy of Political and Social Science, May, 1914)

The effectiveness of the control of municipal public utilities by state commissions is determined by the thoroughness of their findings, the justice of their rulings and the extent to which the proceedings and orders of the commissions are sustained by the courts or made final and conclusive by statutory enactments. While the strength of commission findings and the validity of the orders issued thereon depend upon the scope and accuracy of their investigations and the integrity of their rulings, the force and effect of commission control depend ultimately upon the authority conferred on the commissions by the legislatures in the first instance and the extent to which action by commissions is made conclusive of the controversy. The right of review or appeal to the courts from the proceedings of commissions limits and defines the sphere of their efficiency and determines the extent to which the courts may supplant, modify or set aside the action of commissions; thereby making their findings and orders conditional and qualified, and not absolute and final.

After an investigation of the facts on due notice, usually of not less than ten days, and a public hearing, the proceedings of the commission have been concluded and disposed of with an order or regulation, an interested party may generally apply to the commission for a rehearing because of additional evidence, changed conditions or errors and omissions in its original proceedings. The time within which a petition for rehearing may be filed is limited by statute in Ohio to thirty days, and in Pennsylvania to fifteen days; 3 while in Illinois only one rehearing may be granted, which, however, does not prevent any party after two years from again applying to the commission. 2 Laws 1911, p. 549, Sect. 45. Laws 1913, no. 854, Art. VI, Sect. 14.

1 Copyrighted.