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and appointed Hon. Hezekiah G. Wells to be the presiding judge of the court.

A court to be known as the Court of Commissioners of Alabama Claims." - It is to be observed that, unlike tribunals heretofore called into existence by the authority of Congress, to distribute to citizens of the United States a fund obtained by the government of the United States from a foreign sovereign, this is not a board of " commissioners " simply, but a court. Certain questions as to the character of this tribunal, its jurisdiction, and its powers, were passed upon, so far as it became needful so to do, by the court itself. But there was no occasion to determine what was its precise status as respects other courts. The question was agitated whether this was one of the inferior courts of the United States within the meaning of article three, section one, of the Constitution, vesting the power in Congress from time to time to ordain and establish the same.

A brief upon this point was filed of counsel in Dockendorff v. United States (No. 393), arguing that this was such a court. But it does not appear that the court conceived it to be necessary to determine or even to consider the point.

The argument in favor of this view may be stated briefly somewhat as follows:

indeed by the humblest attendant of the court. He was a good judge, and a warmhearted, genial man.

1 An example of commissioners, as distinct from a court, is to be seen in the “Mixed Commission on American and British Claims,” established in accordance with the provisions of the twelfth article of the Treaty of Washington, which met at Washington, September 26, 1871, and concluded its labors in two years. Papers relating to the Treaty of Washington, vol. vi.

It rendered awards, and the governments, by the terms of the thirteenth article, agreed that the decisions of the commissioners should be absolutely final and conclusive. But there was no suit, or other procedure in the form of an ordinary judicial hearing - the article just named providing that the commissioners should “investigate and decide such claims in such order and in such manner as they may think proper, but upon such evidence or information only as shall be furnished by, or in behalf of the respective governments.”

Cf. act of March 3, 1871 (16 Stat. at Large, 525), establishing the Southern Claims Commission.

Whether the judges of the Court of Commissioners of Alabama Claims are amenable to the provisions of Rev. St. sec. 713, making it unlawful “for any , judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law,”

quære.

If we consult the act organizing this court, we observe that the preamble provides for the creation of a "court.” It is not for the creation of a commission. In the body of the act, the word “commissioners” occurs but once. It is employed simply in the nomenclature of the court. The persons to be nominated by the President, and confirmed by the Senate, are to constitute a “court." They are denominated “judges.” One of the said judges is to be “presiding judge of the court." Vacancies in the office of judges are to be filled in the same manner as vacancies occurring in offices under the Constitution of the United States are filled. Section three empowers the making of all needful rules for regulating the mode of procedure before the court. Such rules and mode of procedure, it is evident, are not intended to be of the flexible character of rules before ordinary commissions. They are required, as far as practicable, to conform to the mode of procedure and practice of the circuit courts of the United States. Further, this court is clothed with all the power of the circuit and district courts of the United States to compel the attendance and testimony of parties and witnesses.

By section four it is provided that the court shall have a clerk. He is not a secretary of a commission. He is of the dignity of an officer appointed by the President, with the advice and consent of the Senate. By order of this court, of date October 5, 1874, a seal of the court was adopted. Its use, if not required from the very nature of the court itself, is expressly alluded to in section thirteen. Section six furnishes the court with the proper officer to serve process, preserve order, and execute the orders of the court. Again, the language of section thirteen shows that the conclusion at which the court arrives is a “judgment,” and not simply an award. But it is strenuously objected that the inferior courts contemplated by article three, section one, of the Constitution are tribunals, permanent in their nature, and not such organized bodies as may be called into being for a temporary purpose only. And in proof of this, attention is invited to the further provision of that section which says that 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. To this it is replied that there appears to be every reason for believing that the continuance in office during good behavior was intended solely to secure to the judges a permanency in their seats so long as the court itself existed. It was not meant to restrict Congress to the establishment of such courts only as are permanent in their nature.

The true object of the “good behavior” clause is pointed out by Mr. Justice Story. He says that in England a great portion of the civil and criminal business of the whole kingdom is performed by persons acting under commissions issued periodically for a single circuit. That the judges of the courts of King's Bench, Common Pleas, and Exchequer, hold special commissions, investing them with their authority. But,“ by the Constitution of the United States, all criminal and civil jurisdiction must be exclusively confided to judges holding their office during good behavior; and though Congress may from time to time distribute the jurisdiction among such inferior courts as it may create from time to time, and withdraw it at their pleasure, it is not competent for them to confer it upon temporary judges, or to confide it by special commission.” Story on the Constitution, $ 1627.

Obviously the Constitution means that judges of the inferior courts created by Congress shall not be the mere creatures of Congress, liable to be removed at the will of the power creating them. Whenever occasion demands the establishment of a tribunal with full powers of a court, for the purpose of disposing of a subject matter limited in its extent, is there a reasonable doubt that Congress has the power to create such a “court," assigning to its duration a temporary character ?

Section eight of the act provides that the Court of Commissioners of Alabama Claims shall exist for one year from the date of its convening, &c., with provisions for an extension. It is to be remarked that the judges are not appointed for any particular time; but that it is the expiration of the court ipso facto only that determines their official existence. They have therefore the same permanency, so far as the independence of influence from the legislative arm of the government is concerned, as a circuit or district judge. Their tenure of office is equivalent to a holding during good behavior. The extension of the period of the court's existence by the act approved December 24, 1875, was not a reappointment of the judges, or in terms an extension of their term of office. It was a prolongation of the court itself, and the judges hold as if no provision had ever been made for its briefer existence. The requirement of this safeguard of the Constitution is answered by giving to the judges of this court an official life co-extensive with that of the court itself.

In examining the extent of the authority conferred upon it to permit amendments to be made by claiinants after the time for filing petitions had expired, the court, speaking through PORTER, J., employed the following language:

“ The Court of Commissioners of Alabama Claims was, by the act of 230 June, 1874, constituted a court, not in form merely, but in every essential attribute of a court. It is called a court, and its members are designated as judges. It is required to meet and organize as a court. It is empowered to compel the attendance of parties and witnesses, to administer oaths, to preserve order, to punish for contempts, and to enforce the production of books and papers. It is required to hear and consider the allegations and proofs of the parties, to keep a record of its proceedings, to enter judgments, and to exercise, for certain purposes, the powers possessed by the circuit and district courts of the United States. Its jurisdiction is certainly limited to a particular class of subjects, but within the range of its jurisdiction, its power to hear, to decide, and to enter judgment is as complete as could be claimed for any court of the most enlarged jurisdiction.” 1

Upon another occasion the same learned judge remarked :

“The act of Congress has conferred on this court almost unprecedented powers, by making us judges both of the law and the facts of every case, and giving no appeal from our judgments to any other tribunal; but the court is nevertheless one, not of general, but of special and limited jurisdiction, and clearly no claimant can bring himself within this jurisdiction without an exact and faithful compliance with the terms of the act.” 3

The inquiry arose whether the court could decide between rival claimants, each asserting, as against the other, a right to a judgment for a loss, duly proved as against the United States. The doctrine of Comegys v. Vasse, 1 Peters, 193, was considered by the court a conclusive authority as to its powers in the premises. This court has the power to decide conclusively upon the amount and validity of claims, but not upon the conflicting rights of parties to the suins awarded. It cannot compel parties making conflicting claims to interplead. In all such cases the court fixes the amount due from the United States, and awards payment thereof to the party having the better prima facie right, but without prejudice to the right of other parties to contest the question of title to the amount awarded before other appropriate tribunals.1

1 Schreiber v. United States (No. 740) Rep. 124. 2 Williams v. United States (No. 45) Rep. 32.

The judgments of this court have given rise to litigation in the judicial tribunals of this country and of England; but, so far as the writer is aware, there has not been an expression of judicial opinion by any other bench as to the powers and jurisdiction conferred by the act of 1874 upon the Court of Commissioners of Alabama Claims. In this connection it may be well to call attention to the case of Gordon v. United States, 2 Wall. 561 (s. c. 1 Nott & H. xxiii) where the Supreme Court, in 1864, were of opinion that they had no appellate jurisdiction over the Court of Claims, as then organized. This was on the ground that section 14 of the act of March 3, 1863 (12 Stat. at Large, 768) by implication gave the Secretary of the Treasury the power to revise the decisions of the Court of Claims. This implied power was taken away by the act of March 17, 1866 (14 Stat. at Large, 9) repealing the act of 1863, and giving in express terms an appeal to the Supreme Court of the United States.

From an inspection, however, of sections 14 and 15 of the act of June 23, 1874 (infra), it will be seen that the judgments of the Court of Commissioners of Alabama Claims are final and without appeal; and the Secretary of State is required to transmit a certified copy of a list of the several judgments and decisions to the Secretary of the Treasury, and it is made the duty of the latter officer to pay the said judgments, with interest, at the rate of four per centum per annum.

1 McLeane, Adm'x, v. United States (No. 763) Rep. 112.

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