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Argument for Appellees.

appointed for a term of years, it may, under the same constitutional warrant, confer like power on a single individual for the entire country, or on a different individual for each State or county or railroad, or may attach it as a duty to an existing office, such as that of postmaster or United States marshal. It may thus constitute an indefinite number of irresponsible citizens into detectives, armed with inquisitorial authority and a roving commission. For the safety and liberty of the citizen, Congress ought not to have any such power. It is gratifying to discover that wherever the question has been presented, the courts have decided that it has no such power.

A clearer or more emphatic statement could hardly be made, than has been made by the Interstate Commerce Commission itself on this precise point. We should almost be willing to submit this branch of the case upon its annual report of the Commission for 1893.

Turning from principle to authority, we find discussion practically foreclosed by the vigorous and decisive opinion of Mr. Justice Field in In re Pacific Railroad Coinmission, 32 Fed. Rep. 241. The act creating that commission conferred power in terms as broad and as plausible as those of section 12 of the Interstate Commerce Act, directing an inquiry into the management of certain railroad companies and into the relations of the directors, officers, and employés of said companies with other concerns having contracts with the companies under investigation, and also whether the companies, or their officers or agents, had paid money or done anything else for the purpose of influencing legislation. These powers, like the powers attempted to be conferred on the Interstate Commerce Commission, contained two elements. Some of them were purely and offensively inquisitorial, searching into business which was wholly private. For the rest, the information sought could only be material as a foundation for subsequent judicial (i.e. criminal) proceedings. In the first part of his opinion Mr. Justice Field, with great power and unanswerable logic, demonstrates that this is a judicial inquiry; that the Commission is in no respect a judicial body, and that under our

Argument for Appellees.

system of government such a body cannot conduct such an inquiry. Ile cites the decision of this court by Mr. Justice Miller in Kilbourn v. Thompson, 103 U. S. 168, and the case of Boyd v. The United States, 116 U. S. 616, which equally with the Kilbourn case in his language, is “a bulwark against the invasion of the right of the citizen to protection in his private affairs,” adds, “the courts are open to the United States as they are to the private citizen, and both can there secure by regular proceeding, ample protection of all rights and interests which are entitled to protection under a government of a written constitution and laws."

II. Even if Congress could empower the Commission to make this investigation, still it could not empower the court to grant the order applied for; because, whether the character of the inquiry is judicial or non-judicial, the question does not here arise in a case or controversy as required by the Constitution.

If this investigation by the Interstate Commerce Commission is other than judicial in its character, then by the very terms of its organization a judicial tribunal has no power over it. But that it is a judicial inquiry we have sufficiently shown by argument and authority. It remains to show that, as here presented, it is such an inquiry as does not fall within the constitutional province of this court.

The Federal Constitution provides that: “The judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States and treaties made, or which shall be made under their authority,

to controversies to which the United States shall be a party,

etc." The two clauses cited are the only ones under which, by any possible construction, the present application could fall. No power is granted except under the two categories of

cases” and “controversies.” It was early decided, and has never been seriously questioned, that these words not only express, but limit the judicial power of the United States, and that only “cases” and “controversies " can find an entrance into the Federal courts. What these words mean, and

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Argument for Appellees.

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how strictly they define the power of the Federal judiciary may be seen from a few citations. Justice Field, in the case above cited, says:

“The term 'controversies,' if distinguishable at all from cases,' is in that it is less comprehensive than the latter, and includes only suits of a civil nature.” Citing Chisholm v. Georgia, 2 Dall. 432.

What, then, are “cases ” ? Judge Story answers as follows: “Another inquiry may be, what constitutes a case within the meaning of this clause? It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the Constitution, arises when some subject touching the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law. In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union.” Story Const. § 1646.

In Osborn v. Bank of the United States, 9 Wheat. 738, 819, Chief Justice Marshall says: “This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case.”

So, also, this court, by Mr. Justice Field, has compactly defined cases and controversies" in the following language:

“ “By those terms are intended the claims or contentions of litigants, brought before the courts for adjudication by regular

Argument for Appellees.

proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs." Smith v. Adams, 130 U. S. 167, 173.

The courts have uniformly and repeatedly refused to recognize as “cases” or “controversies” questions arising at a preliminary stage before the judicial power is called into exercise, or subject to revision by another department after the courts have done with them. Under the first head falls United States v. Ritchie, 17 How. 525. The language of the act creating the California Land Claims Commission seems to be framed with a studious purpose of making the Commission an adjunct of the court, and provides eo nomine an “appeal ” from its decision. This court decided that the Commission could only be supported at all by treating it as a purely administrative body, and that the so-called “appeal” was, in legal effect, the institution of a new suit, the judicial power being then for the first time invoked.

In Ferreira's Case, 13 How. 40, 45, the proceeding was held not to be a constitutional “case,” because there was a similar discretion lodged in the Secretary of State after the court should have rendered its decision upon the validity of any given claim.

The precise objection here urged was recognized by Mr. Justice Gray, now of the United States Supreme Court, speaking as Chief Justice for the Supreme Court of Massachusetts, in the case of Supervisors of Elections, 114 Mass. 247. The Massachusetts constitution defined and limited very strictly the division of powers between the legislative, executive, and judicial departments. It was held by the Supreme Court that an act of the legislature, requiring the court on petition to appoint supervisors of elections, was unconstitutional, as imposing non-judicial duties upon the court. Judge Gray says: “ These supervisors, although entrusted with a certain discretion in the perforinance of their duties, are strictly executive officers. They make no report or return to the court or any judge thereof. Their duties relate to no judicial suit or proceeding

We are unanimously of the opinion that the power of appointing such officers cannot be con

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Argument for Appellees.

ferred upon the justices of this court without violating the constitution of the Commonwealth. We cannot exercise this power as judges, because it is not a judicial function, nor as commissioners, because the constitution does not allow us to hold any such office."

This decision is not weakened in any way by the acts of Congress authorizing the Federal Judges to appoint supervisors of election. The grounds of distinction pointed out by Judge Gray are unnecessary to be considered, since the Federal Constitution, article 2, section 2, clause 2, expressly authorizes Congress to“ vest the appointment of such inferior officers as they shall think proper, in the President alone, in the courts of law, or in the heads of departments.” It is held by this court, in Ex parte Siebold, 100 U. S. 371, that the appointment of Federal supervisors by the courts is warranted by this clause of the Constitution. The reasoning of Judge Gray in the Massachusetts case is strictly applicable here.

We come back finally to the proposition, which counsel does not state in terins, but which is involved in all of his argument, that any petition to a court, however non-judicial in form, asserting a right, however non-judicial in character, on one side, and an answer denying the right on the other, constitute a case or controversy, even though, as here, the denial is based upon the ground that there is no case or controversy. But if every unfounded assertion of a right, in a non-judicial form, could make a "case,” the whole constitutional limitation would be meaningless and void. This will readily appear if we leave out of sight for a moment the congressional authority on which the asserted right is here supposed to be based, and test the question as between private parties. A duty imposed by Congress has no higher sanctity than the obligations of a private contract. Suppose, then, that some years ago a private individual had filed a petition, setting up that by contract a senator of the United States, upon good consideration, had agreed to make known to the petitioner the reasons which influenced the senator to support the Compromise of 1850, which agreement the senator was now refusing to perform, and praying that performance be

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