ted under the proclamation without the payment of the dues therein mentioned." The commissioner of navigation claims authority to make this decision by virtue of section 3 of the act of Congress of July 5, 1884, c. 221, 23 Stat. 119 (U. S. Comp. St. 1901, p. 199), entitled "An act to constitute a bureau of navigation in the Treasury Department," which reads as follows: "That the commissioner of navigation shall be charged with the supervision of the laws relating to the admeasurement of vessels, and the assigning of signal letters thereto, and of designating their official number; and on all questions of interpretation, growing out of the execution of the laws relating to these subjects, and relating to the collection of tonnage tax, and to the refunding of such tax when collected erroneously or illegally, his decision shall be final."

The plaintiff's vessels were German vessels, and on the 19th day of June, 1886, and thereafter until now, the government of Germany exacted no tonnage tax or taxes whatever on vessels of the United States arriving in German ports.

* * *

As to the time when the act of June 19, 1886, went into operation, whether immediately from and after the date of its approval, or not until the date of the President's proclamation, and also whether the voyages of the plaintiff's vessels from Bremen to New York must be made "directly," and without stoppage at an intermediate port, in order to be exempted from the imposition and payment of tonnage dues, the decision of these questions by the commissioner of navigation must be held to be conclusive, unless so much of section 3 of the act of July 5, 1884, which makes his decision final in such matters, is unconstitutional. Much learning and ability have been employed by plaintiff's counsel to establish the invalidity of this portion of the act, which invests a department officer with such unlimited judicial power, and by which he is enabled to decide all contests in relation to alleged illegal dues, ex parte, and absolutely. On the other hand, the labor and responsibility of the court have been increased by the omission of the defendant's counsel to furnish any assistance towards the solution of the questions, and permitting them to pass sub silentio. The subject, however, is not res integra. In Cary v. Curtis, 3 How. 236, 11 L. Ed. 576, the Supreme Court had under consideration the constitutionality of the third section of the act of Congress of March 3, 1839, entitled "An act making appropriations for the civil and diplomatic expenses of the government for the year 1839," by which the Secretary of the Treasury was authorized to finally decide when more duties had been paid to any collector of customs, or to any person acting as such, than the law required, and to draw his warrant in favor of the person or persons entitled for a refund of the amounts so overpaid. The opinion of the court discusses very ably and at much length the questions involved in that case.

A few sentences taken from the opinion will indicate the grounds upon which the validity of the act of 1839 was sustained: "We have

no doubts [say the court] of the objects or the import of that act. We cannot doubt that it constitutes the Secretary of the Treasury the source whence instructions are to flow; that it controls both the position and the conduct of the collectors of the revenue; that it has denied to them any right or authority to retain any portion of the revenue for purposes of contestation or indemnity; has ordered and declared those collectors to be the mere organs of receipt and transfer, and has made the head of the Treasury Department the tribunal for the examination of claims for duties said to have been improperly

paid. * * * It is contended, however, that the language and the

*

purposes of Congress, if really what we hold them to be declared in the statute of 1839, cannot be sustained, because they would be repugnant to the Constitution, inasmuch as they would debar the citizen of his right to resort to the courts of justice. * * The objection above referred to admits of the most satisfactory refutation. This may be found in the following positions, familiar in this and in most other governments, viz. that the government, as a general rule, claims an exemption from being sued in its own courts. That although, as being charged with the administration of the laws, it will resort to those courts as means of securing this great end, it will not permit itself to be impleaded therein, save in instances forming conceded and express exceptions. Secondly, in the doctrine, so often ruled in this court, that the judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. To deny this position would be to elevate the judicial over the legislative branch of the government, and to give to the former powers limited by its own discretion merely. It follows, then, that the courts created by statute must look to the statute as the warrant for their authority. *** The courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law. * The courts of the United States can take cognizance only of subjects assigned to them expressly or by necessary implication; a fortiori, they can take no cognizance of matters that by law are either denied to them, or expressly referred ad aliud examen."

* *

This exposition of the origin and extent of the jurisdiction of the courts of the United States was reaffirmed in Sheldon v. Sill, 8 How. 449, 12 L. Ed. 1147, where it was held that courts created by statute can have no jurisdiction but such as the statute confers. The right

given by section 2931, Rev. St., to sue for overpaid dues is taken away by the act of July 5, 1884, and the power to determine controversies arising from alleged exactions by collectors is deposited with the commissioner of navigation. Such is the effect of the decisions just cited, and which, as long as they are not overruled by the tribunal. which made them, must be obeyed as the law of the land. The authorities referred to by plaintiff's counsel are cases where department officers, in making regulations to be observed by their subordinates, exceeded their statutory power, but in no one instance was it pretended that the officer was clothed with the power to make a final decision in contested matters. It was perhaps unnecessary, in view of Cary v. Curtis, and Sheldon v. Sill, that I should have done more than acquiesce in the doctrines there announced, and support the validity of the act of July 5, 1884, without further discussion, but the large amount of money involved in the present actions, and the earnestness and force with which the plaintiff's claims have been pressed, have induced me to make a more extended presentation of them than was at first designed. It must be borne in mind that this court is not called on to express any opinion on the justice or expediency of placing such unlimited power in the hands of the commissioner of navigation as is conferred by the act of July 5, 1884. The duty of the court is to discover whether the act is in conflict with the Constitution, and, on being satisfied that it is not, to judge accordingly. To pursue any other course would be not only extrajudicial, but also improper, in assuming to criticise the wisdom of Congress in making the law. Neither is the court required to say whether the commissioner of navigation is or is not correct in his interpretation of the law. Congress has seen fit to constitute him the final arbiter in certain disputes, and Congress alone can supply a remedy for any wrong which may have arisen from his construction of the law relating to the collection of tonnage due.

Let judgment be entered in each case for the defendant.

LAIDLAW v. ABRAHAM, Collector.

(Circuit Court of United States, D. Oregon, 1890.

43 Fed. 297.)

DEADY, J.18 The plaintiff, James Laidlaw, doing business as "James Laidlaw & Co.," brings this action against Hyman Abraham, collector of customs at the port of Portland, in the district of Wallamet to recover the sum of $793.50, alleged to have been wrongfully exacted by the defendant from the British ship Largo Law, as a ton

The only other point made in support of the demurrer is that the decision on the appeal to the Secretary was, under Act July 5, 1881,

18 Only a portion of the opinion of Deady, J., is printed.

c. 221, 23 Stat. 118 (U. S. Comp. St. 1901, p. 199), in fact made by the commissioner of navigation, and is by said act made final, and is therefore a bar to this action.

This act is entitled "An act to constitute a bureau of navigation in the Treasury Department." The commissioner created by it is charged, "under the direction of the Secretary of the Treasury" with many duties concerning "the commercial, marine, and merchant seamen of the United States;" and, by section 3 thereof, "with the supervision of the laws relating to the admeasurement of vessels and the assigning of signal letters thereto, and of designating their official number; and on all questions of interpretation growing out of the execution of the laws relating to these subjects, and relating to the the collection of tonnage tax, and to the refund of such tax when collected erroneously or illegally, his decision shall be final."

At first blush it may appear that this provision in the Act of 1884 repealed so much of sections 2931, 3011, Rev. St. (U. S. Comp. St. 1901, pp. 1933, 1985), as gives the person paying such illegal tax the right of redress in the courts, after an unsuccessful appeal to the department. But, on reflection, I am satisfied that the word "final" is used in this connection with reference to the department, of which the commissioner is generally a subordinate part.

In my judgment, the purpose of the provision is to relieve the head of the department from the labor of reviewing the action of the commissioner in these matters, to sidetrack into the bureau of navigation the business of rating vessels for tonnage duties, and deciding questions arising on appeals from the exaction of the same by collectors. The appeal is still taken to the Secretary of the Treasury, as provided in section 2931, but goes to the commissioner for decision, whose action is "final" in the department, as it would not be but for this provision of the statute.

This being so, and nothing appearing to the contrary, it follows that the right of action given to the unsuccessful appellant in such cases is not taken away. The appeal to the department has simply been decided by the commissioner, rather than the Secretary, and, that having been adverse to the plaintiff, his right of action against the collector attaches at once.

And, even if it were plain that Congress in the passage of this act intended to deprive the plaintiff of all redress in the courts, might he not in good reason claim that the act is so far unconstitutional and void, as being contrary to the fifth amendment, which declares that no person shall be deprived of his "property without due process of law?"

The demurrer is overruled.

SECTION 73.-SAME-QUESTIONS OF FACT

HARRINGTON v. GLIDDEN.

(Supreme Judicial Court of Massachusetts, 1901. 179 Mass. 486, 61 N. E. 54, 94 Am. St. Rep. 613.)

Exceptions from superior court, Middlesex county.

Action by one Harrington, as collector of taxes, against one GlidFrom a judgment for plaintiff, defendant brings exceptions. Overruled.

HAMMOND, J.19 In this action the plaintiff, as collector, seeks to recover a tax assessed upon the defendant, as trustee. It is contended by the defendant that, even if he was a trustee, such was the nature and location of the property, and his relation to it, that he was not taxable as such.

The first question is whether this ground of the defense is open to the defendant in this action. The assessment and collection of taxes is regulated by statute. The assessors are public officers, and, while their duties are of a quasi judicial nature, their jurisdiction is limited, based sometimes upon the residence of the person assessed, or of some other person interested in the property, and sometimes upon the situation of the property. Without reciting in detail the statutes, it is sufficient to say that they provide that each person may bring in a sworn list of the personal property for which he in any capacity should be taxed, and this list is to be received by the assessors as true, except as to valuation, unless he, being required thereto by the assessors, refuses to answer on oath all necessary inquiries as to the nature and amount of his property. case a person does not bring in a list, the assessors shall ascertain, as nearly as possible, his taxable property, and "make an estimate thereof at its just value, according to their best information and belief," and "such estimate shall be conclusive," except in certain cases not here material. Pub. St. c. 11, §§ 38-42. Any person aggrieved by an assessment may apply for an abatement to the assessors, and, by appeal from their decision, to the county commissioners or superior court, and on questions of law may reach this court; but no person shall have an abatement unless he files a list, as above provided. Id. §§ 69-72; St. 1890, c. 127.

In

This plain, adequate, and complete remedy for the correction of errors, whether of law or fact, is the only one provided by our statutes; and when the assessors are acting within their jurisdiction, it must be regarded as exclusive, in accordance with the well-known

19 Only a portion of the opinion of Hammond, J., is printed.