The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-04-03

i law authorised him to act. 1t would not eonvart
the adjustment Of claim as commissioner or auditor
Of accounts into the judgment Of judi sial tribunal
would seem, indeed, in this case. tha' The District
Judge acted under the erroneous opinion that he
was exercising judicial power. and has given TO those
proceedings as much the form of proceedings in n
| court of justice practicable. \ petition in
form is filed by the claimant and tho Judge states
in his opinion that the District Attorney appeared
for the United States, and argued the ease, and
prayed an appeal But the acts OF Congress require
| no petition The claimant has nothing "a do but to
present his claim to the Judge with the vouchers and
evidence to support it, The District Attorney has no
right to enter an appearance for the United States
so as to make them party to the proceedings, and
TO authorize judgment against them. ID was no
doubt his duty public officer if he knew Of any
evidence against the claim, or OF any objection to the
evidence produced by the claimant pring it before
the Judge, in order that he might consider IT, and re-
port it to the Secretary But the acts Of Congress
certainly do not authorize him to convert u pro-
| cesdlng before commissioner into judicial one,
nor to bring an appeal from his award before th.
court. Inc question as to the character in
when Judge acts in case Of this description
,son not new one. 1t arose as long ago as
l1Sz, in Haybum's case, reported in 2Daie 400.
The act of 23rd of March, in that wear rco,ired tho
Circuit Courts Of the United States to examine into
the claims OF the officers and soldiers and seamcn Of
me to the pensions granted to invalids by
that act, and to determine the amount of paw that
would be equivalent to the disability incurred and
to certify their opinion to the Secretary of War.
And it authorized the Secretary, when he had cause
n
pension allowed by the court and to report the case
to Congress at its next session. The authority was
given to the Circuit Courts; and question aross
whether the power conferred was a judicial one
which the Circuit Courts, rs such, could constitutions
ally exercise. The question was not decided in the
Supreme Court in the case above mentioned But
the opinions ofthe Judges fthe Circuit Courts for the
districts OF New York, Pennsylvania and North Car
DINA, are all given in note to the case by the re-
porter The Judges in the New York circuit compos-
ed ofChiefJ Justice JAY Justice Cushing and Duane
District Judge held that the power could not be ex-
ercised by them as court But in .ion or
the mertorious and benevolent object 0: the law.
they agreed to construe the power as conferred on
them individually us commissioners and 10 adjourn
the court over from time to time, 10 enable them
toperform the duty in the character OF Gn, ssioners
and out of Court The Judges of the peunsylvania
Circuit, consisting of Wilson and Blair Justices of
the Supreme Court, and Peters, District Judge re-
iusedto execute it altogether, upon the ground that
1T was conferred on them as court. and was not a
judicial power when subject to the revision of the
Secretary of War. The Judges of the Circuit Court
OF North Carolina. composed Of lredc!I Justice of
the Supreme Court, and Sitgreavcs District Judge
were Of opinion that the Court could not execute Il
as a Judicial power, and held it under advisenent
whether they might not construe the act as an an
pomtment OF the Judges personally commission
ers, ana enable them to perform the duty in the
character of commissioners out of court as had been
agreed on by the Judgas of the New York Circuit
These opinions it appears, by the report in Dali,
were all communicated to the President and
motion for mandamus, in Hayburn's case nj
the next term of the Supreme Court would seem
to have been made merely for the purpose of having
It Judicially determined in this Court, whether
the Judges, under that law, could constitutionallv
act in the character Of commissioners For every
Judge OF the court, which at that time consisted
OF five members. had formally expressed his
opinion in writing, that the duty imposed, when
the decision subject to the revision of a
Secretary and of Congress, could not be executed
by the Court as judicial power and the only
question upon which there could have been any
difference OF opinion was, whether it could not be
construed as comforting the power on the Judges
personally as commissioners; and if it would beari
that construction, there have been no doubt
that they might constitutionay exercise it, and the
Secretary constitutionaly revise their DECISIONS
The law. however, was repealed at the next session
OF the Legislature and different way provided for
the relief of the pensioners and the question as Is
the construction of the law was not decided in tho
Supreme Court. But the repeal of the act clearly
shows that the President and Congress acauiesced in
the correctness of the decision that it was not q
judicial power, and that, if exercised it must be by
by the Judges commissioners and not as a court
This law is the same in principle as the one we are
now considering, with this difference only-that tho
act of 1892 imposed the duty the Court co non,ne
nd not personally on the Judges In the case be-
fore us. il is imposed upon the judge and it appears
from the note 30 the of Haybu that majority
the Judges Of the Supreme Court were of opinion
that if the law of 1872 had conferred the power on the
Judges, they would have held that it given to
them personally by that description, and would have
performed the duty as commissioners, subject to the
revision and control of the Secretary and Congress
as provided in the law. Nor have Justices Wilson,
Blair, and Peters, District Judge, dssented from this
opinion. Their communication to the President is
silent upon this point But the opinions of the ma )
Ority OF the Judges, embrace distinctly and positive
y the provisions of the law now before u.s. and de-
clare that under such iaw the power was not judi
cia and could not be exercised as such but that it
would be personal authority to the Judge, which
he might exercise in the character Of commissioner
and which might cOnsttutionally be subjected to-
the revision and control of the Secretary.
After the decisions thus made in 1892, and ac-
guessed in at the time by the other departments Of
the government, think that the question must
be regarded as settled, and not now open to contro
versy under the act of 1923
Independently of these objections we are at some
loss to understand how this case could legally be
transmitted to this court, and certified as a trans
eript of record in the District Court According
to the directions of the Act of Congress- the decision
Of the Judge and the evidence on which il is found
cd ought to have been transmitted to the Secretary
of the Treasury. They are not to remain in the
District Court, to be recorded there They 10,
gally belong to the Office of the Secretary Of the
Treasury, and not to the Court: and a cony
from the clerk of the latter, would not be evil
dence in any court Of justice. There is no record
Of the proceedings in the District Court of which
transcript can legally be made and certified; and
consequently there is transcript now before us
that we can recognize evidence of any proceeding
or judgment in that court.
The appeal must be dismissed for want Of jursdic-
ton.