some moral self-reliance and leadership of its own. And it is up to the Government to help by shifting this public responsibility to the shoulders of private industry just as fast as businessmen can take it.

As for any community sentiment in favor of the Commission's prosecuting activities, when I am introduced to businessmen as a member of the Federal Trade Commission, the atmosphere gets so frigid you could put on ice skates and glide around. Each man is afraid he will be the next guinea pig. He doesn't even want me to know his name.

He thinks we lean out of our ivory tower on Sixth and Pennsylvania Avenue and look upon the world of commerce, believing it's all wicked, and he is confident that we can sue and win against any we choose to favor with our attention. He knows we are against sin. But we won't tell him what sin is until we first drag him around in court for a few years. And to get dragged around in court can cost an awful lot, even up to several million dollars.

The Federal Trade Commission has no directive under law to hold conferences with businessmen for the purpose of developing understanding or common acceptance of trade practices. Sometimes it holds conferences with members of an industry in an attempt to establish understandable rules. But the few specific rules which come out of these scattered meetings are based on the law as established in cases which the FTC has won against industry in court prosecutions. We refuse and, in my opinion, quite wrongly-to base any definite rules on cases we lost in court. If we win, we keep your marbles. But if we lose, it doesn't count.

In my opinion, no administrative agency should prosecute a businessman for a method, act, or practice in interstate commerce if it is unwilling first to answer an inquiry as to its legality in terms of specific facts. A suit based on doubt or lack of precedent, or upon the uncertainty or obscurity of a statute, should never be the basis for Government prosecution. We are guilty of stalling and shillyshallying when we are unwilling to interpret what we are willing to sue on.

What steps should be taken to correct this situation? First, the public will have to be disabused of the pap fed it-that the Government is St. George and business the Dragon. Government is going to have to get off that big, white horse, pluck the plume from its hat, hang up its tilting lance, and show itself for what it really is-a bunch of human beings, certainly not better and probably no worse than those in business.

And business is going to have to call in its snipers and stop fighting that rearguard action against those in the Government whom Charles Beard once described as the antitrust racketeers.

One good mousetrap maker, furnishing a million-dollar pay roll to a community, a reasonable return to the stockholders, and about 40 percent of its profits to Uncle Sam, is worth 100 bureaucrats in anybody's money.

Merchants must get over having that funny feeling when they talk to the Government. You know what I mean-that sensation everybody gets when the traffic cop walks over to your car and reaches in his hip pocket for his ticket pad. What would I have business do in place of sniping at the antitrust racketeers? I would have business accentuate the positive instead of the negative. Instead of sniping, complaining, wailing, and squirming—all of which I admit it often has all too good reason to do-business should get behind the move to organize a system of industry-wide trade practices. Let American industry raise its voice in support of a proposal so fundamentally decent and fair as the proposal to have industry and the Government sit down together at the conference table, instead of perpetually squaring away at each other in the prize ring. I guarantee that the American people and Congress will welcome it.

After 3 years on the Federal Trade Commission, I am convinced that as long as bureaucracy doesn't overextend itself by getting after too many people who violate regulations, officialdom can go on quietly kicking the spots out of one or two dozen businessmen every year without Congress being any the wiser.

Why do businessmen take so much abuse for granted? Well, the Government is a fearsome thing and, like the barber who wouldn't file an income-tax return because he "didn't want to get in trouble with Uncle Sam," most industrialists are content to let well enough alone and are glad to have Uncle Sam do likewise. Speaking for myself, I am fed up with the let-well-enough-alone policy which has kept the Federal Trade Commission for the past 34 years in a state of static animation in its program of hit-and-miss prosecution. Things are standing still, but it looks like we are going places.

But are we? I dissent.

[Mississippi Law Journal]

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THESE INFERIOR FEDERAL COURTS-CURTIS L. WALLER, CIRCUIT JUDGE, UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT

The

No doubt you have often heard the remark that a Federal judge has more power than an oriental sultan. That statement may have been true once, but since Erie Railroad v. Tompkins and Dobson v. Commissioner of Internal Revenue, a Federal judge is inferior to nearly everything and everybody. Federal judge would like to think that when the Constitution spoke of inferior Federal courts the term was used only in a relative sense or in the relation of those courts to the Supreme Court, but the realization is finally dawning that both Congress and the Supreme Court for some time have been according a literal interpretation to the term.

My discussion is not intended to be considered as authoritative, but only as suggestive, or provocative of thought, and I hope that what I say here will not be used against me. I realize that some phases of the subject which I shall advance for your consideration are contrary to pronouncements of judges of great name and learning, but notwithstanding the great names which might be cited as closing the door to judicial inquiry as to some of the thoughts to which I shall draw your attention, and notwithstanding the frequency with which some of their contrary views have been reiterated, Article III is still in the Constitution and as long as it is, lawyers have the privilege of coming to their own conclusions as to whether or not it stands as a perpetual protest against a trend by Congress and the Supreme Court to take the judicial power away from the courts and give it to administrative boards and tribunals.

Sections 1 and 2 of Article III of the Constitution provide:

"Section 1. 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 Office during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be disminished during their Continuance in Office.

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"Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; * * * to Controversies between two or more States; This, according to Justice Story, in Martin v. Hunter, “is the language creating and defining the judicial power of the United States. It is the voice of the people of the United States in establishing one of the three branches of their Government." " Its language, the decision held, was mandatory and Congress could not ignore or deviate from it. Emphasis was placed on the fact that the judicial power "shall be vested" and not "may be vested."

These words vest the whole judicial power of the United States "in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish," whose judges shall hold office during good behavior, and whose compensation could not be subject to a withholding tax during their continuance in office.

Since the same section of article III that vests the judicial power in these Federal courts provides for the tenure of their judges and the security of their compensation, does it or not seem to follow that all Federal tribunals that exercise judicial power, must have judges whose tenure and compensation are thus secured, and that any tribunal not having a judge appointed during good behavior is not a court that can be vested with this judicial power, regardless of its nomenclature? If so, would it also follow that a judge who has a tenure of office fixed in years can only discharge administrative duties? Although one may be called a "judge” of The Tax Court or the Court of Customs Appeals, can he constitutionally be vested with judicial power unless he is a judge as described in article III?

1 This article is an address delivered at the 40th annual meeting of the Mississippi State Bar on October 24, 1945, at Biloxi.

2 Circuit judge, Fifth Circuit Court of Appeals.

3 304 U. S. 64. 58, Sup. Ct. 817. 83 L. ed. 1188 (1938).

4 320 U. S. 489, 64 Sup. Ct. 239, 88 L. ed. 248 (1942).

51 Wheat. 304, 4 L. ed. 97 (1816).

1 Wheat. at 328, 4 L. ed. at 193.

1

I like the definition of judicial power by the Supreme Court of Missouri in State v. Fry,' that:

"Judicial power can mean nothing more nor less than the power which administers justice to the people according to the prescribed forms of law-according to their rights as fixed by the law."

Another definition of judicial power is that "it is the power of a court to decide and pronounce judgment and to carry it into effect between parties who bring the case before it for decision."

In Todd v. United States, it was said:

"A court is defined to be a place in which justice is judicially administered. It is the exercise of judicial power, by the proper officer or officers, at a time and place appointed by law."

There seems to be much confusion as to what is judicial power and what is administrative power. Congress does not seem to have kept the distinction very clearly in mind. The Constitution did not accord to the courts any of the powers of the legislative or executive departments of Government, and definitely it was not the purpose of the people in the adoption of the Constitution to undertake to have the courts run or supervise the administrative branches of the Government in the discharge of their appropriate functions. But out of the multitudinous problems of an expanding governmental control it is sometimes difficult to discern the dividing line between judicial and administrative functions. We must all admit that it is necessary in carrying on the vast business of the Federal Government that decisions be made and facts determined without having to resort to, and wait on a decision from, the courts.

The courts, like the mills of the gods, grind slowly, and many facts ought to be determined by governmental agencies such as the Interstate Commerce Com. mission, Federal Power Commission, Securities and Exchange Commission, the Tax Court, the National Labor Relations Board, and scores of others; and their determinations involve the rights of citizens. In many of these adminis. trative inquiries hearings in the form and substance of judicial proceedings are accorded, and I readily admit that many of them do a creditable job which the courts are ill equipped oftentimes to do. In this day of radio, atomic power, and jet propulsion, the people do not wait on surrebutters; and whenever these boards and commissions in appropriately exercising quasi-judicial powers learn to do as the courts and make justice their guiding star instead of conceiving that their functions are the vigorous administration of certain acts, I, for one, will welcome them with open arms.

It seems not without significance that while the trend to collect governmental functions into the Federal Government has increased in its momentum, for better or for worse, the power of the Federal courts to review the acts of boards and commissions has been steadily reduced. I mention this, not for the purpose of decrying or protesting, for after all, Congress represents the people and is, doubtless, undertaking to meet a popular demand; but I mention it merely as illustrative of the diminution of the power of the courts.

Of course, the Congress may rightfully withhold from Federal courts jurisdiction of subjects not embraced in the category of those which by section 2 of article III of the Constitution were vested in the Federal courts, for they are courts of limited jurisdiction, having only such power as the Constitution and statutes of the United States have conferred upon them.

But to what extent may it withhold jurisdiction of the cases which section 2 of article III extended to all cases arising under the Constitution and laws of the United States and treaties, and to all cases affecting ambassadors, public ministers, and consuls, and to all cases of admiralty and maritime jurisdiction?

The judicial power by section 2 of article III expressly extends only to cases and controversies. In Osborn v. United States Bank, Chief Justice Marshall speaking of article III, said:

"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 on 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, and the Constitution declares, that the judicial power shall

extend to all cases arising under the Constitution, laws, and treaties of the United States." 10

In Smith v. Adams," Mr. Justice Field stated that by the terms "cases" and "controversies" used in the judicial article of the Constitution defining the limits of the judicial power of the United States

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* * was meant the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim or contention of a party takes such form that the judicial power is capable of acting upon it, then it has become a case or controversy.12

This perhaps means that the Federal judicial power extends only to court cases and controversies as distinguished from administrative controversies which have not reached the courts

This conclusion permits the view that Congress may authorize boards and commissions to decide with finality, and without providing for court review, matters which do not come within the category of cases arising within the field committed to the courts by section 2 of article III. But may Congress constitutionally deny the citizens a right to bring a case in the Federal court for the determination of the rights between him and another citizen if they arise under the Constitution, laws, and treaties of the United States, or if they are of admiralty cognizance, or concern ambassadors, ministers, and consuls, in view of the provision that the judicial power extends to all such cases? I will let you answer the question. I am only asking it. It perhaps is not appropriate that I should in this form undertake to make answer, but I will say that it has been done so often, at least in part, noticeably in NLRB cases involving rights between employer and employee, that I would be bumptious indeed to stand here and assert that Congress cannot do that.

I prefer to pass on to a discussion of the legal situation where Congress has provided for judicial review or a resort to the courts.

In Martin v. Hunter, Judge Story said:

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"If, then, it is a duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all."

"It would seem, therefore, to follow, that Congress. are bound to create some inferior, courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their pleasure. But the whole judicial power of the United States should be at all times vested either in an original or appellate form, in some courts created under its authority."

Justice Brewer, in Kansas v. Colorado, said: 15

"Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, the parties to which or the property involved in which may be reached by judicial process, and when the judicial power of the United States was vested in the Supreme and other courts all the judicial power which the Nation was capable of exercising was vested in those tribunals, and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the Nation, no matter who may be the parties thereto."

But Congress has not always observed this principle. There are some half hundred boards and commissions of the Government authorized to make findings of fact which are binding upon the courts in reviewing such action if there is any evidence to support the findings of such board or commission.

The findings of these boards and commissions are by statute generally made final and they cannot be set aside upon review by courts if such findings "are supported by evidence"-not if supported by the weight of the evidence. And in the matter of drawing inferences it has been held that the findings of the board must be sustained if the inferences drawn by the board or commission are reason

10 9 Wheat. at 815.

11 130 U. S. 167. 9 Sup. Ct. 566, 32 L. ed. 895 (1888).

12 130 U. S. at 170.

13 1 Wheat. at 330.

14 Id. at 331.

15 206 U. S. 46, 83, 51 L. ed. 956 (1906).

able. Even though the court might be thoroughly convinced that the factual findings of the board are the result of bias, prejudice, or even stultification, it cannot set the findings aside, except for errors of law, if there is any substantial evidence in the record to support the findings.

The concept that any part of the judicial power of the United States could be constitutionally vested in a tribunal that is within itself accuser, witness, judge, and jury, is rather disturbing; and the manner in which some of them have performed must shock some of those individuals who have plugged so consistently in support of the thesis of bureaucratic infallibility.

The Emergency Court of Appeals, operating in connection with price control, presents an interesting and ingenious set-up. I know of no other Federal statute that contains such a provision as the following:

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"Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision."

Provision is made, however, whereby a defendant may file a complaint in the Emergency Court of Appeals against the Administrator, and that court has jurisdiction to enjoin or set aside, in whole or in part, any provision of the regulation. The right of review of the decisions of the Emergency Court of Appeals is accorded the Supreme Court. One is obliged to wonder whether this Emergency Court of Appeals should be characterized as fish or fowl. I have mentioned the theory heretofore that a tribunal is not a court possessing Federal judicial power unless it is presided over by a judge appointed under the provisions of section 1 of article III of the Constitution. I have adverted to the theory, also, that the judicial power vested in these Federal courts must be called into play on cases and controversies. It would seem that complaint filed against the Administrator in the Emergency Court of Appeals is a case or a controversy, and that only judges appointed during good behavior and whose salaries could not be reduced could be judges of a court having jurisdiction of such matters. The OPA statute confirms these concepts, for it makes duly appointed regular Federal judges the judges of that court, thereby carefully adhering to the provisions of section 1 of article III.

The Emergency Court of Appeals is an inferior court, ordained and established by Congress, which tries cases and controversies, and is presided over by judges appointed during good behavior, whose compensation cannot be diminished; but what about the Court of Customs Appeals or the Tax Court, or any other so-called court, wherein the judges are not appointed in accordance with section 1 of article III? Are they courts that have the right to exercise judicial power? The name of the Board of Tax Appeals was recently changed to the Tax Court, but that is a misnomer, although it is a tribunal for which I have an exceedingly high regard. The Tax Court statute provides for review of that court's decisions by the Circuit Courts of Appeals and

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"Upon such review, such court shall have the power to affirm, or, if the decision of the Board is not in accordance with law, to modify or to reverse the decision of the Board, with or without remanding the case for rehearing, as justice may require." (Italics added.)

I am thankful that Congress still expects the circuit courts of appeals to act according to the principles of justice even in tax matters to which some say justice is a total stranger.

It will be noted that there is nothing in the act creating the Board of Tax Appeals, or Tax Court, providing that the findings of fact of such board shall be conclusive if there is any evidence to sustain them. The Circuit Court of Appeals, instead, is required to affirm, or modify, or reverse, if the decision is not in accordance with law, all as justice may require. But it has long been held by the Supreme Court that findings of fact by the Board are conclusive on review, if supported by any evidence, and recently, in Dobson v. Commissioner,18 it was held that where there are no constitutional questions involved a determination of the Tax Court on mixed questions of law and fact is not reviewable unless the court can separate the elements of decision so as to identify a clear-cut mistake of the law.

16 38 Stat. 639, 50 U. S. C. A. App. § 924 (d) (1944). 17 44 Stat. 110 (1926), 26 U. S. C. A. § 1141 (c) (1). 18 320 U. S. 489, 64 Sup. Ct. 239, 88 L. ed. 248 (1943).