U.S. Supreme Court
WILLIAMS v. UNITED
STATES, 289 U.S. 553 (1933)
289 U.S. 553
Argued April 12, 1933.
Decided May 29, 1933.
[289 U.S. 553, 555] Messrs. George A. King and George R.
Shields, both of Washington, D.C ., for plaintiff.
[289 U.S. 553, 559] The Attorney General and Mr. Thomas
D. Thacher, Sol. Gen., of Washington, D.C., for the United States.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
Plaintiff is, and since November 11, 1929, has been, a judge of the
Court of Claims of the United States. Since his entry upon the duties of
his office, and until June 30, 1932, he received a salary at the rate of
$ 12,500 per annum, as fixed by the Act of December 13, 1926, c. 6, 1,
44 Stat. 919 (28 USCA 241). Since that date he has been paid at the rate
of $ 10,000 per annum under a ruling of the Comptroller General of the
United States. Compare O'Donoghue v. United States, 289 U.S. 516 , 53 S.Ct.
740, 77 L.Ed. --, decided this day. [289 U.S. 553, 560] The
Legislative Appropriation Act of June 30, 1932 (chapter 314, 47 Stat. 382,
402) in part provides:
'Sec. 107. (a) During the fiscal year
ending June 30, 1933-...
'(5) the salaries and retired pay of
all judges (except judges whose compensation may not, under the Constitution,
be diminished during their continuance in office), if such salaries or
retired pay are at a rate exceeding $10,000 per annum, shall be at the
rate of $10,000 per annum.' 5 USCA 673 note.
The Comptroller General, as the basis for his ruling, took the view
that the Court of Claims is a 'legislative' court, and not a 'constitutional'
court created under article 3, 1, of the Constitution, which provides:
'The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. The Judges, both of
the supreme and inferior Courts, shall hold their Offices during good Behavior,
and shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.'
On February 8, 1933, this suit was brought in the Court of Claims to
recover the amount of the difference between the statutory rate of $12,500,
and the smaller amount paid under the ruling of the Comptroller General.
The suit was brought by plaintiff in the court of which he is a member,
because, as it is averred, no other court or remedy was open to him. Plaintiff's
petition rests upon the contention that the Court of Claims is a constitutional
court, created in virtue of the power of Congress to constitute tribunals
inferior to the Supreme Court, whose judges 'shall hold their Offices during
good Behavior, and shall, at stated Times, receive for their Services,
a Compensation, which shall not be diminished [289 U.S. 553, 561]
during their Continuance in Office.' The government demurred to the petition,
upon the ground that the judges of the Court of Claims are not judges of
an 'inferior court' within the meaning of that constitutional provision.
The Court of Claims, without passing upon the demurrer, certified to this
court the following questions, upon which it desires instructions, under
section 3(a) of the Act of February 13, 1925, c. 229, 43 Stat. 936, 939
(28 USCA 288(a):
'I. Does Section 1, Article III, of the
Constitution of the United States apply to the Court of Claims and forbid
a reduction of the compensation of the Judges thereof during their continuance
'II. Does the provision of Section 2,
Article III, of the Constitution, wherein it is stated that 'The Judicial
Power shall extend ... to controversies to which the United States shall
be a party', apply to the Court of Claims, and does this provision authorize
the creation and establishment of that Court?
'III. Can the compensation of a Judge
of the Court of Claims be lawfully diminished during his continuance in
In the O'Donoghue Case, supra, we have discussed in some detail the
purposes which led the framers of the Constitution to incorporate in that
instrument the provisions in respect of the permanent tenure of office
and the undiminishable character of the compensation of the judges; and
have pointed out that the judges of the Supreme Court and Court of Appeals
of the District of Columbia plainly come within the spirit and reason of
the compensation provision, and must be held to fall within its intent,
unless that conclusion is precluded by other considerations. Much of what
is there said may also be said in respect of the Court of Claims. It is
a court of great importance, dealing with claims against the United States,
which, in the aggregate, amount to a vast sum every year. The questions
which it considers call for [289 U.S. 553, 562] the exercise
of a high order of intelligence, learning, and ability. The preservation
of its independence is a matter of public concern. The sole function of
the court being to decide between the government and private suitors, a
condition, on the part of the judges, of entire dependence upon the legislative
pleasure for the tenure of their offices and for a continuance of adequate
compensation during their service in office, to say the least, is not desirable.
But these considerations, though obvious enough, are not sufficient,
standing alone, to support a conclusion that the Court of Claims comes
within the reach of the judicial article in respect of tenure of office
and compensation. The integrity of such a conclusion must rest, not upon
its desirability, but upon its conformity with the provisions of the Constitution.
For reasons which are set out in the O'Donoghue opinion, the courts
of the territories are legislative courts, while the superior courts of
the District of Columbia are constitutional courts. The Court of Claims
differs so essentially from both that its status, in respect of the question
under consideration, must be determined from an entirely different point
That court was first established by the Act of February 24, 1855, c.
122, 10 Stat. 612, entitled, 'An Act to establish a Court for the Investigation
of Claims against the United States.' It was to consist of three judges,
to hold their offices during good behavior. The act provided that the court
should hear and determine certain claims against he government of the United
States, and also all claims which might be referred to the court by either
House of Congress. The court was to keep a record of its proceedings in
each case and make a report to Congress for the action of that body. By
the Act of March 3, 1863, c. 92, 12 Stat. 765, the court was for the first
time authorized to render final judgments, from which an appeal was allowed
in certain cases. Section 14 of that act ( 12 Stat. 768) provided: [289
U.S. 553, 563] 'That no money shall be paid out of the treasury
for any claim passed upon by the court of claims till after an appropriation
therefor shall be estimated for by the Secretary of the Treasury.'
Because of that provision, it was held in Gordon v. United States, 2
Wall. 561, that under the Constitution no appellate jurisdiction could
be exercised by this court. The reasons for that conclusion are stated
in an undelivered opinion written by Chief Justice Taney, and, with approval,
published for the first time in 117 U.S. 698 , 699. It was there stated
that, in view of section 14, the power of the Court of Claims and of this
court was merely to certify their opinion to the Secretary of the Treasury;
and whether the claim was paid in accordance with the opinion depended
not on the decision of either court, but upon the future action of the
Secretary and of Congress. So far as the Court of Claims is concerned,
it was said there is no objection to these provisions, since Congress undoubtedly
may establish tribunals to examine testimony and decide in the first instance
upon the validity and justice of any claim against the United States, subject
to the supervision and control of Congress or the head of an executive
department. Such authority was likened to that of an auditor or comptroller,
and the circumstance that the tribunal was called a court and its decisions
called judgments could not alter its character or enlarge its power. But
in respect of this court different principles were said to apply, since
this court is created by the Constitution and represents one of the three
great divisions of power in the government, 'to each of which the Constitution
has assigned its appropriate duties and powers, and made each independent
of the other in performing its appropriate functions. The power conferred
on this court is exclusively judicial, and it cannot be required or authorized
to exercise any other.' The conclusion, therefore, was that Congress could
neither [289 U.S. 553, 564] confer nor impose on this court
the authority or duty of hearing or determining an appeal from such a tribunal,
nor authorize or require this court to express an opinion on a case where
its judicial power could not be exercised and where its judgment would
not be final and conclusive upon the rights of the parties.
These observations, without adverting to others which have been disavowed,
have since met with the uniform approval of this court.
The decision of the Gordon Case in 2 Wallace was announced on March
10, 1865. At the next session of Congress section 14 was repealed. Chapter
19, 14 Stat. 9. Since that time it never has been doubted that Congress
may authorize an appeal to this court from a final judgment or decree of
the Court of Claims, United States v. Jones, 119 U.S. 477, 478 , 479 S.,
7 S. Ct. 283; In re Sanborn, 148 U.S. 222, 225 , 13 S.Ct. 577; Luckenbach
S.S. Co. v. United States, 272 U.S. 533 , 536 et seq., 47 S.Ct. 186, or
that the judgment of this court rendered on such appeal constitutes a final
determination of the matter. United States v. O'Grady, 22 Wall. 641, 647.
It is equally certain that the judgments of the Court of Claims, where
no appeal is taken, under existing laws are absolutely final and conclusive
of the rights of the parties unless a new trial be granted by that court
as provided by law. Id. Indeed, as appears from the cases already cited
and others, such finality and conclusiveness must be assumed as a necessary
prerequisite to the exercise o appellate jurisdiction by this court.
In 1887 Congress gathered together the preceding acts in respect of
suits against the government in what is called the Tucker Act. Chapter
359, 24 Stat. 505. By that act the Court of Claims was given jurisdiction
to hear and determine, among other matters, all claims upon any contract,
express or implied, with the government of the United States, or for damages,
liquidated or unliquidated, in cases not sounding in tort, 'in respect
of which claims [289 U.S. 553, 565] the party would be entitled
to redress against the United States either in a court of law, equity,
or admiralty if the United States were suable.' Section 1. By section 2
of the act, as amended and supplemented by section 24(20) of the Judicial
Code, concurrent jurisdiction was conferred upon the federal District Courts
in all matters as to which the Court of Claims had jurisdiction, where
the amount involved did not exceed $10,000. U.S. Code, title 28, 41(20),
28 USCA 41(20).
By these provisions it is made plain that the Court of Claims, originally
nothing more than an administrative or advisory body, was converted into
a court, in fact as well as in name, and given jurisdiction over controversies
which were susceptible of judicial cognizance. It is only in that view
that the appellate jurisdiction of this court in respect of the judgments
of that court could be sustained, or concurrent jurisdiction appropriately
be conferred upon the federal District Courts. The Court of Claims, therefore,
undoubtedly, in entertaining and deciding these controversies, exercises
judicial power, but the question still remains - and is the vital question
- whether it is the judicial power defined by article 3 of the Constitution.
That judicial power apart from that article may be conferred by Congress
upon legislative courts, as well as upon constitutional courts, is plainly
apparent from the opinion of Chief Justice Marshall in American Insurance
Company et al. v. Canter, 1 Pet. 511, 546, dealing with the territorial
courts. 'The jurisdiction,' he said, '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 is to say (1) that the courts of the territories (and, of
course, other legislative courts) are invested with judicial power, but
(2) that this power is not conferred by the third article of the Constitution,
but by Congress in the execution of other provisions of that [289 U.S.
553, 566] instrument. The validity of this view is borne out
by the fact that the appellate jurisdiction of this court over judgments
and decrees of the legislative courts has been upheld and freely exercised
under acts of Congress from a very early period, a practice which can be
sustained, as already suggested, only upon the theory that the legislative
courts possess and exercise judicial power - as distinguished from legislative,
executive, or administrative power - although not conferred in virtue of
the third article of the Constitution.
The authority to naturalize aliens has been vested in the courts from
the beginning of the government; and it cannot be doubted that in discharging
this function the courts exercise judicial power. But the courts of the
states, with the acquiescence of all the departments of the federal government,
have also exercised the same jurisdiction during this long period of time,
and their authority to do so must be regarded as conclusively established.
Levin v. United States (C.C.A.) 128 F. 826, 830, 831. In that case, Judge
Sanborn, in a very carefully drawn opinion, pointed out that Congress cannot
vest any portion of the judicial power granted by section 1 and defined
by section 2 of the third article of the Constitution in courts not ordained
and established by itself;* that the judicial power there granted and defined
necessarily extended only to the trial of the classes of cases named in
section 2; but that these sections neither expressly nor impliedly prohibited
Congress from conferring judicial power upon other courts. 'Thus,' he says,
'the authority granted [289 U.S. 553, 567] to territorial courts
to hear and determine controversies arising in the territories of the United
States is judicial power. But it is not a part of that judicial power granted
by section 1, and defined by section 2, of article 3 of the Constitution.
Nevertheless, under the constitutional grant to Congress of power to 'make
all needful rules and regulations respecting the territory ... belonging
to the United States' (article 4 , 3), that body may create territorial
courts not contemplated or authorized by article 3 of the Constitution,
and may confer upon them plenary judicial power, because the establishment
of such courts and the bestowal of such authority constitute appropriate
means by which to exercise the congressional power to make needful rules
respecting the territory belonging to the United States. ... The grant
by the Congress of the United States of the judicial power to admit aliens
to citizenship, and to hear and decide the various questions which do not
arise in the cases specified in article 3 of the Constitution, but which
a proper exercise of the powers granted by that instrument to the executive
or to the legislative department of the Government requires to be judicially
decided, was neither expressly nor impliedly prohibited by that article.
The congressional power to make such a grant, and to vest judicial authority
in state courts and officers, in such cases, exists by virtue of the established
rule that the grant of a power to accomplish an object is a grant of the
authority to select and use the appropriate means to attain it.'
If the power exercised by legislative courts is not judicial power,
what is it? Certainly it is not legislative, or executive, or administrative
power, or any imaginable combination thereof.
With the foregoing principles in mind we come, then, to a consideration
of the crucial question here involved, Is the judicial power exercised
by the Court of Claims [289 U.S. 553, 568] vested in virtue
of the third article of the Constitution so as to bring its judges within
the protection of that article as to tenure of office and compensation?
It must be conceded at the threshold that this court in several cases
has expressed, more or less irrelevantly, its opinion in the affirmative.
Thus, in United States v. Klein, 13 Wall. 128, 145, after reference to
the legislation with respect of the Court of Claims, the view is expressed
that such court was thus constituted one of those inferior courts which
Congress authorizes. In United States v. Union Pacific R.R. Co., 98 U.S.
569 , 603, it was said that under the authority of article 3 Congress had
created the District Courts, the Circuit Courts, and the Court of Claims,
and vested each of them with a defined portion of the judicial power found
in the Constitution. In Minnesota v. Hitchcock, 185 U.S. 373, 386 , 22
S.Ct. 650, 655, the court, after directing attention to the fact that the
United States could not be sued without its consent, said that with its
consent it might be sued, in which event the judicial power of the United
States extended to such a controversy, and added: 'Indeed, the whole jurisdiction
of the court of claims rests upon this proposition.' See, also, Kansas
v. United States, 04 U.S. 331, 342 , 27 S.Ct. 388; United States v. Louisiana,
123 U.S. 32, 35 , 8 S.Ct. 17.
None of these cases involved the question now under consideration, and
the expressions referred to were clearly obiter dicta, which, as said by
Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 399, 'may be
respected, but ought not to control the judgment in a subsequent suit,
when the very point is presented for decision.'
On the other hand, this court, in Ex parte Bakelite Corp'n, 279 U.S.
438 , 49 S.Ct. 411, 414, in a fully considered opinion holding that the
Court of Customs Appeals was a legislative court, definitely took the opposite
view. The status of the Court of Claims is there discussed at length, and
the conclusion reached that it likewise is a legislative court. 'It [289
U.S. 553, 569] was created, and has been maintained,' we there
said, '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.' The opinion then points out
that the Court of Claims is, and always has been, as Congress declared
at the outset, 'a court for the investigation of claims against the United
States'; that none of the matters made cognizable by the court inherently
or necessarily requires judicial determination, but, on the contrary, 'all
the matters which are susceptible of legislative or executive determination
and can have no other save under and in conformity with permissive legislation
by Congress.' It is noted as significant that the act constituting the
court dispenses with trial by jury, a provision which was distinctly upheld
in spite of the Seventh Amendment in McElrath v. United States, 102 U.S.
426 . With respect to the status of the court, the opinion concludes (pages
454, 455 of 279 U.S., 49 S.Ct. 411, 414):
'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. Afterwards some were
to have effect as binding judgments, but others were still to be merely
advisory. This is true at the present time. 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
'In Gordon v. United States, 117 U.S.
697 , Append., and again in In re Sanborn, 148 U.S. 222 , 13 S.Ct. 577,
this Court plainly was of [289 U.S. 553, 570] opinion that
the Court of Claims is a legislative court specially created to consider
claims for money against the United States, and on that basis distinctly
recognized that Congress may require it to give advisory decisions. And
in United States v. Klein, 13 Wall. 128, 144-145, this court described
it as having all the functions of a court, but being, as respects its organization
and existence, undoubtedly and completely under the control of Congress.
'In the present case the court below
regarded the recent decision in Miles v. Graham, 268 U.S. 501 , 45 S.Ct.
601, as disapproving what was said in the cases just cited, and holding
that the Court of Claims is a constitutional rather than a legislative
court. But in this Miles v. Graham was taken too broadly. The opinion therein
contains no mention of the cases supposed to have been disapproved; nor
does it show that this Court's attention was drawn to the question whether
that court is a statutory court or a constitutional court. In fact, as
appears from the briefs, that question was not mooted. Such as were mooted
were considered and determined in the opinion. Certainly the decision is
not to be taken in this case as disturbing the earlier rulings or attributing
to the Court of Claims a changed status. Webster v. Fall, 266 U.S. 507,
511 , 45 S.Ct. 148.
'That court was said to be a constitutional
court in United States v. Union Pacific R.R. Co., 98 U.S. 569, 602 , 603
S.; but this statement was purely an obiter dictum, because the question
whether the Court of Claims is a constitutional court or a legislative
court was in no way involved. And any weight the dictum, as such, might
have is more than overcome by what has been said on the question in other
cases where there was need for considering it.'
It is true that the foregoing views expressed in the Bakelite Case were
likewise not strictly necessary to the [289 U.S. 553, 571]
decision; but, unlike previous and contrary expressions of opinion on the
same subject, they are elucidated and fortified by reasoning and illustration,
and, moreover, are the result of a careful review of the entire matter.
It is also true that in the O'Donoghue Case, supra, we have rejected the
dictum in the Bakelite Case as to the status of the Supreme Court and Court
of Appeals of the District of Columbia, but a reference to the discussion
in the O'Donoghue Case will make apparent the difference in force between
the dictum there involved and the one here involved. In addition to this,
whatever may be said in respect of the obiter character of the opinion
as to the Court of Claims, the status of the Court of Customs Appeals,
as a purely legislative court, was definitely adjudged. And neither by
brief nor in argument here is any serious attempt made to differentiate,
in respect of the question now being considered, between the Court of Claims
and the Court of Customs Appeals; and we have been unable to discover any
ground for such a differentiation.
Further reflection tends only to confirm the views expressed in the
Bakelite opinion as to the status of the Court of Customs Appeals, and
we feel bound to reaffirm and apply them. And, giving these views due effect
here, we see no escape from the conclusion that, if the Court of Customs
Appeals is a legislative court, so also is the Court of Claims. We might
well rest the present case upon that determination; but must not do so
without considering another view of the question, which seems to find support
in some expressions of this court, namely, that, when the United States
consents to be sued, the judicial power of article 3 at once attaches to
the court upon which jurisdiction is conferred in virtue of the clause
which in comprehensive terms extends the judicial power to 'Controversies
to which the United States shall be a Party.' [289 U.S. 553, 572]
In Minnesota v. Hitchcock, supra, at pages 384, 386 of 185 U.S., 22 S.
Ct. 650, 654, it was said:
'This is a controversy to which the United
States may be regarded as a party. It is one therefore to which the judicial
power of the United States extends. It is, of course, under that clause,
a matter of indifference whether the United States is a party plaintiff
or defendant. It could not fairly be adjudged that the judicial power of
the United States extends to those cases in which the United States is
a party plaintiff, and does not extend to those cases in which it is a
party defendant. ...
'While the United States as a government
may not be sued without its consent, yet with its consent it may be sued,
and the judicial power of the United States extends to such a controversy.'
See, also, Kansas v. United States, supra, at page 342 of 204 U.S.,
27 S.Ct. 388.
This conception of the application of the judicial article of the Constitution,
which at first glance seems plausible, will be found upon examination and
consideration to be entirely fallacious.
We first direct attention to the carefully chosen words of section 2,
cl. 1, art. 3. By that clause the judicial power is extended to all cases
in law and equity arising u der the Constitution, etc.; to all cases affecting
ambassadors, other public ministers and consuls; and to all cases of admiralty
and maritime jurisdiction. Then the comprehensive word 'all' is dropped,
and the enumeration continues in terms to apply to controversies (but not
to 'all') to which the United States shall be a party; to controversies
between two or more states, etc. The use of the word 'all' in some cases,
and its omission in others, cannot be regarded as accidental, under the
rule stated in an early case, Holmes v. Jennison et al., 14 Pet. 540, 570-571,
614, 618 Appx., and ever since fully accepted, that: 'In expounding the
[289 U.S. 553, 573] constitution of the United States, every
word must have its due force, and appropriate meaning; for it is evident
from the whole instrument, that no word was unnecessarily used, or needlessly
added. The many discussions which have taken place upon the construction
of the constitution, have proved the correctness of this proposition; and
shown the high talent, the caution, and the foresight of the illustrious
men who framed it. Every word appears to have been weighed with the utmost
deliberation, and its force and effect to have been fully understood.'
See, also, Myers v. United States, 272 U.S. 52, 151 , 47 S.Ct. 21.
The significance of the use of the word 'all' in some instances and
its omission in others is commented upon by Mr. Justice Story in Martin
v. Hunter's Lessee, 1 Wheat. 304, 333-336, and it is there suggested that
the word 'all,' which is used in the earlier part of section 2 of the judicial
article, was dropped in the latter ex industria, and that from this difference
of phraseology, perhaps, a difference of constitutional intention may with
propriety be inferred. See, also, 2 Story on the Constitution (4th Ed.)
p. 458, 1674 et seq.
We are here immediately concerned only with that provision of article
3 which extends the judicial power to 'Controversies to which the United
States shall be a Party.' Literally, this includes such controversies,
whether the United States be party plaintiff or defendant; but in the light
of the rule, then well settled and understood, that the sovereign power
is immune from suit, the conclusion is inadmissible that the framers of
the Constitution intended to include suits or actions brought against the
United States. And here the omission to qualify 'controversies' by the
word 'all,' as in some other instances, becomes peculiarly suggestive.
The Judiciary Act of 1789 (1Stat. 73) has always been regarded as practically
contemporaneous with the Constitution, and, as [289 U.S. 553, 574]
such, of great value in expounding the meaning of the judicial article
of that instrument. Martin v. Hunter's Lessee, supra, at pages 351-352
of 1 Wheat.; Cohens v. Virginia, supra, at page 420 of 6 Wheat.; Bors v.
Preston, 111 U.S. 252 , 256-257, 4 S.Ct. 407; Wisconsin v. Pelican Ins.
Co., 127 U.S. 265, 297 , 8 S.Ct. 1370. Section 11 of that act, chapter
20, 1 Stat. 73, 78, confers jurisdiction on the Circuit Courts, under specified
conditions, of suits 'where ... the United States are plaintiffs, or petitioners.
...' And in Cohens v. Virginia, supra, at pages 411-412 of 6 Wheat., Chief
Justice Marshall said: 'The universally received opinion is, that no suit
can be commenced or prosecuted against the United States; that the judiciary
act does not authorize such suits.'
The judicial clause also extends the judicial power (again omitting
the word 'all') to controversies 'between a State and citizens of another
State.' The question as to whether this authorized a suit against a state
by a citizen of another state was considered in Chisholm v. Georgia, 2
Dall. 419. Opinions were delivered seriatim, four justices, then constituting
a majority, agreeing that such a suit could be maintained. Justice Iredell
dissented in a vigorous opinion. He pointed out that prior to the adoption
of the Constitution a sovereign state, without its consent, was not amenable
to suit at the hands of an individual, and concluded that this rule had
not been abrogated by the constitutional provision, in spite of the generality
of its language. The immediate response to this decision was the submission
and adoption of the Eleventh Amendment, which provides:
'The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.'
In terms this amendment includes only citizens or subjects of another
or of a foreign state, not citizens of the [289 U.S. 553, 575]
state called to account. And in December, 1884, a suit was brought in a
federal Circuit Court against the State of Louisiana by a citizen of that
state to recover the amount of certain unpaid coupons annexed to an issue
of state bonds. Hans v. State of Louisiana (C.C.) 24 F. 55. The Circuit
Court dismissed the suit upon the ground that the state could not be sued
without its consent. The case then came to this court on error, and the
judgment was affirmed. Hans v. Louisiana, 134 U.S. 1 , 10 S.Ct. 504. The
precise question considered and determined was, Does the judicial power
of the United States extend to a case arising under the Constitution or
laws thereof, brought against a state by one of its own citizens? Mr. Justice
Bradley delivered the opinion of the court. Plaintiff in error contended
that, being a citizen of Louisiana, the Eleventh Amendment presented no
obstacle to his suit, since that amendment prohibits suits against a state
only when brought by citizens of another state, or by citizens or subjects
of a foreign state. This court, conceding that the amendment so reads,
said that, if there were no other reason or ground for abating the suit,
it might be maintainable, with the anomalous result that a state might
be sued in the federal courts by its own citizens, though it could not
be sued for a like cause of action by citizens or subjects of another or
foreign state. But, it said, such a result would be no less startling and
unexpected than was the decision in Chisholm v. Georgia, which in effect
had been overruled by the Eleventh Amendment; and the dissenting opinion
of Mr. Justice Iredell, which was characterized as able, was distinctly
approved. As opposed to the decision in Chisholm v. Georgia, attention
also was called to the utterances of Hamilton and others, pending the adoption
of the Constitution, to the precise contrary. Hamilton repudiated the suggestion
that the citizens of one state would be enabled, under the original draft
of [289 U.S. 553, 576] the Constitution, to prosecute suits
against another state in the federal courts. He said (page 13 of 134 U.S.,
10 S.Ct. 504, 506):
'It is inherent in the nature of sovereignty
not to be amendable to the suit of an individual without its consent. This
is the general sense and the general practice of mankind; and the exemption,
as one of the attributes of sovereignty, is now enjoyed by the government
of every state in the Union. Unless, therefore, there is a surrender of
this immunity in the plan of the convention, it will remain with the states,
and the danger intimated must be merely ideal. ... The contracts between
a nation and individuals are only binding on the conscience of the sovereign,
and have no pretension to a compulsive force. They confer no right of action
independent of the sovereign will.'
The words of Madison and of Marshall in the Virginia Convention were
quoted, the former to the effect that the only operation which the provision
of the judicial clause then under discussion could have was that, 'if a
state should wish to bring a suit against a citizen (of another state),
it must be brought before the federal court'; and those of Marshall: 'I
hope that no gentleman will think that a state will be called at the bar
of the federal court. ... It is not rational to suppose that the sovereign
power should be dragged before a court. The intent is to enable states
to recover claims of individuals residing in other states . ... I see a
difficulty in making a state defendant which does not prevent its being
plaintiff.' This court then declared (page 14 of 134 U.S ., 10 S.Ct. 504,
506), that 'looking at the subject as Hamilton did, and as Mr. Justice
Iredell did, in the light of history and experience and the established
order of things, the views of the latter were clearly right?; and that
the views expressed by them applied as well to the then pending case as
to that of Chisholm v. Georgia. Refusing to adhere to the mere letter of
the Eleventh Amendment, the court said that to do so would be to strain
[289 U.S. 553, 577] the Constitution to a construction never
imagined or dreamed of, and then added: 'The truth is, that the cognizance
of suits and actions unknown to the law, and forbidden by the law, (that
is to say, as applied to the present case, of suits against the United
States) was not contemplated by the Constitution when establishing the
judicial power of the United States.'
This language applies with equal force to suits against a state and
those brought against the United States. The doctrine of sovereign immunity
is fully discussed in Hans v. Louisiana, and in the dissenting opinion
of Mr. Justice Iredell in Chisholm v. Georgia. We need not repeat that
discussion here. Mr. Justice Holmes, speaking for the court in Kawananakoa
v. Polyblank, 205 U.S. 349, 353 , 27 S.Ct. 526, 527, tersely said: 'A sovereign
is exempt from suit, not because of any formal conception of obsolete theory,
but on the logical and practical ground that there can be no legal right
as against the authority that makes the law on which the right depends.'
It is enough to say that in the light of the settled and unvarying rule
upon that subject it is not reasonably possible to assume that it was within
the contemplation of the framers of the Constitution that the words, 'Controversies
to which the United States shall be a party,' should include controversies
to which the United States shall be a party defendant. That clause must
be construed, in accordance with the practical construction put upon it
by the first Judiciary Act, as though it read, 'controversies to which
the United States shall be a party plaintiff or petitioner;' and, thus
read, controversies to which the United States may be statute be made a
party defendant, at least as a general rule, lie wholly outside the scope
of the judicial power vested by article 3 in the constitutional courts.
See United States v. Texas, 143 U.S. 621, 645 , 646 S., 12 S.Ct. 488.
The view, therefore, that, when congressional consent has been given
to the maintenance of suits against the [289 U.S. 553, 578]
United States, it ipso facto becomes a matter of indifference whether the
United States is a party plaintiff or defendant, because the judicial power
as defined in article 3 immediately and automatically extends to such suits,
must be rejected. It cannot be reconciled with the settled principle that,
where a controversy is of such a character as to require the exercise of
the judicial power defined by article 3, jurisdiction thereof can be conferred
only on courts established in virtue of that article, and that Congress
is without power to vest that judicial power in any other judicial tribunal,
or, of course, in an executive officer, or administrative or executive
board, since, to repeat the language of Chief Justice Marshall in American
Insurance Company et al. v. Canter, supra, 'they are incapable of receiving
The rule is stated in Ex parte Randolph, 2 Brock, 447, 20 Fed. Cas.
pages 242, 254, No. 11,558, by Chief Justice Marshall, sitting on the circuit.
That case involved the legality of an arrest by virtue of a distress warrant
issued from the Treasury Department, under an act of Congress which provided
for the issuing of such a warrant by the agent of the Treasury against
all military and naval officers, etc., charged with the disbursement of
the public moneys, who should fail to pay and settle their accounts with
the Treasury Department. Under the act the Treasury Department had settled
the account and ascertained the sum due to the government. The act was
attacked as unconstitutional on the ground that it violated the first section
of the third article of the Constitution. As preliminary to the determination
of the question, Chief Justice Marshall said:
'If this ascertainment of the sum due
to the government, and this issuing of process to levy the sum so ascertained
to be due, be the exercise of any part of the judicial power of the United
States, the law which directs it, is plainly a violation of the first section
of the third article of the constitution, which declares, that 'the judicial
power [289 U.S. 553, 579] of the United States shall be vested
in one supreme court, and in such inferior courts as congress shall from
time to time ordain and establish. The judges, both of the supreme and
inferior courts, shall hold their offices during good behaviour.' The judicial
power extends to 'controversies to which the United States shall be a party.'
The persons who are directed by the act of congress to ascertain the debt
due from a delinquent receiver of public money, and to issue process to
compel the payment of that debt, do not compose a court ordained and established
by congress, nor do they hold offices during good behaviour. Their offices
are held at the pleasure of the president of the United States. They are,
consequently, incapable of exercising any portion of the judicial power,
and the act which attempts to confer it, is absolutely void.'
In Murray's Lessee et al. v. Hoboken Land & Improvement Co., 18
How. 272, 284, it was declared to be beyond the power of Congress either
to 'withdraw from judicial cognizance any matter which, from its nature,
is the subject of a suit at the common law, or in equity, or admiralty';
or, on the other hand, to 'bring under the judicial power a matter which,
from its nature, is not a subject for judicial determination. At the same
time there are matters, involving public rights, which may be presented
in such form that the judicial power is capable of acting on them, and
which are susceptible of judicial determination, but which congress may
or may not bring within the cognizance of the courts of the United States,
as it may deem proper.' See, also, United States v. Duell, 172 U.S. 576,
582 , 589 S., 19 S.Ct. 286.
Since all matters made cognizable by the Court of Claims are equally
susceptible of legislative or executive determination, Bakelite Case, supra,
pages 452, 458 of 279 U.S., 49 S.Ct. 411, they are, of course, matters
in respect of which there is no constitutional right to a judicial remedy,
United States v. Babcock, 250 U.S. 328, 331 , 39 S.Ct. 464; and the authority
to inquire [289 U.S. 553, 580] into and decide them may constitutionally
be conferred on a nonjudicial officer or body. In United States v. Ferreira,
13 How. 40, 48, this court, referring to an act of Congress (passed in
pursuance of a treaty), directing that judges of the territorial courts
of Florida should examine and adjudge certain claims against the United
States for losses suffered as the result of military operations, with power
of review reserved to the Secretary of the Treasury, held that the power
conferred, although judicial in nature, was nothing more than the power
ordinarily given by law to a commissioner appointed to adjust claims under
a treaty. 'A power of this description,' it was said, 'may constitutionally
be conferred on a Secretary as well as on a commissioner. But (it) is not
judicial in either case, in the sense in which judicial power is granted
by the Constitution to the courts of the United States.'
The view under discussion - that,
Congress having consented that the United States may be sued, the judicial
power defined in article 3 at once attaches to the court authorized to
hear and determine the suits - must then be rejected, for the further reason,
or, perhaps, what comes to the same reason differently stated, that it
cannot be reconciled with the limitation fundamentally
implicit in the constitutional separation of the powers, namely, that a
power definitely assigned by the Constitution to one department can neither
be surrendered nor delegated by that department, nor vested by statute
in another department or agency. Compare Springer v. Philippine
Islands, 277 U.S. 189, 201 , 202 S., 48 S.Ct. 480. And since Congress,
whenever it thinks proper, undoubtedly may, without infringing the Constitution,
confer upon an executive officer or administrative board, or an existing
or specially constituted court, or retain for itself, the power to hear
and determine controversies respecting claims against the United States,
it follows indubitably that such power, in whatever guise or by whatever
agency exercised, is no [289 U.S. 553, 581] part of the judicial
power vested in the constitutional courts by the third article. That is
to say, a power which may be devolved, at the will of Congress, upon any
of the three departments, plainly is not within the doctrine of the separation
and independent exercise of governmental powers contemplated by the tripartite
distribution of such powers. Compare Kilbourn v. Thompson, 103 U.S. 168
We find nothing which militates against the foregoing views in the requirement
that the Court of Claims, in cases properly brought before it in respect
of property expropriated in the exercise of the power of eminent domain,
must award just compensation under the Fifth Amendment, or in the provision
of the Tucker Act (U.S. Code, title 28, 252) requiring the court in cases
brought against the government also to consider and decide set-offs and
other claims made by the government against the petitioner and award judgment
accordingly. In the former case the requirement is one imposed by the Constitution
and equally applicable whether jurisdiction be exercised by a legislative
court or a constitutional court; and the latter is simply a provision which
the claimant must accept as a condition upon which he may avail himself
of the privilege of suing the government in the special court organized
for that purpose. McElrath v. United States, supra at page 440 of 102 U.S..
From whatever point of view the question be regarded, the conclusion
is inevitable that the Court of Claims receives no authority and its judges
no rights from the judicial article of the Constitution, but that the court
derives its being and its powers and the judges their rights from the acts
of Congress passed in pursuance of other and distinct constitutional provisions.
The questions propounded will be answered accordingly.
Question No. 1, No.
Question No. 2, No.
Question No. 3, Yes.
[ Footnote * ] The lack of authority in Congress to devolve any part
of the judicial power defined by article 3 upon courts other than those
created by itself must not be confused with its authority to vest jurisdiction
in respect of some cases in courts whose judicial power is otherwise derived.
Compare Robertson v. Baldwin, 165 U.S. 275 , 278-280, 17 S.Ct. 326; Claflin
v. Houseman, 93 U.S. 130 , 136, et seq.; Second Employers' Liability Cases,
223 U.S. 1 , 55, et seq., 32 S.Ct. 169, 38 L.R.A.(N.S.) 44.
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