Crowell v. Benson

22

Syllabus.

No. 19. Argued October 20, 21, 1931.-Decided February 23, 1932.

1. In virtue of its power to alter or revise the maritime law, Congress

may p'ovide that where employees in maritime employment are disabled or die from accidental injuries arising out of or in the course of their employment upon the navigable waters of the United States, their employers shall pay reasonable compensation, without regard to fault as the cause of injury, and be thereby relieved from other liability. P. 39.

2. The Longshoremen's and Harbor Workers' Compensation Act, which

provides a scheme for compensation in the class of cases above de- scribed, applicable if recovery "through workmen's compensation proceedings may not validly be provided by State law," upheld as to substantive provisions. P. 22.

3. The classifications of disabilities and beneficiaries and the amounts

of compensation provided in the Act not being unreasonable, the Act in those respects is consistent with the due process clause of the Fifth Amendment. Pp. 41-42.

4. The difficulty of ascertaining actual damages justifies the fixing of

standard coml)ensation in such an Act at figures reasonably approxi- mating probable damages. Id.

5. Considerations respecting the relation of master and servant, which

sustain workmen's compensation laws of the States against objec- tions under- the due process clause of the Fourteenth Amendment, are applicable to the substantive provisions of this Act of Congress, tested by the due process clause of the Fifth Amendment. Id.

6. Claims for compensation under the above-mentioned Act are filed

with administrative officers called deputy commissioners, who "shall have full power and authority to hear and determine all questions in respect of such claim." They may issue subpoenas which are enforcible through contempt proceedings in federal courts.

In in- * Together with No. 20, Crowell, Deputy Commissioner, and Knud-

sen v. Benson.

22

Syllabus.

vestigating and hearing claims they are not to be bound by the common-law or statutory rules of evidence, except as provided in the Act, but are to proceed in such manner "as to best ascertain the rights of the parties." Hearings are to be public and reported stenographically and records are to be made, for which the Commis- sion created by the Act must provide by regulation. Orders for compensation are to become final in 30 days. When compensation ordered is not paid, a supplementary order may be made declaring the amount in default, and judgment for that amount may be en- tered in a federal court if the order "is in accordance with law."

Review of such judgment may be had as in suits for damages at common law. The Act further provides that if a compensation order is "not in accordance with law," it may be suspended or set aside, in whole or in part, through injunction proceedings against the deputy commissioner who made it; and also that beneficiaries of such an order, or the deputy commisioner, may have it enforced in a federal court if the court determines that the order" was made and

(1) As the claims are governed by the maritime law and within

the admiralty jurisdiction, trial by jury is not required by the Seventh Amendment. P. 45.

(2) The Act reserves to the admiralty courts full power to pass

upon all questions of law, including the power to deny effect to an administrative finding which is without evidence or contrary to the indisputable character of the evidence, or where the hearing was inadequate, unfair, or arbitrary.

In this respect it satisfies due process and attempts no interference with the judicial power in admiralty and maritime cases. Pp. 46, 49.

(3) As regards questions of fact, the Act does not expressly pre-

clude the court, in proceedings to set aside an order as not in ac- cordance with law, from making its own examination and determi- nation of facts whenever that is deemed necessary to enforce con- stitutional rights; and, as the Act is to be construed to support rather than to defeat it, no such limitation should be implied.

(4) Apart from constitutional rights to be enforced in court, the

Act contemplates that, in cases within its purview, the findings of a deputy commissioner on questions of fact respecting injuries to em- ployees shall be final if supported by evidence. P. 46.

(5) So limited, the use of the administrative method for deter-

mining facts (assuming due notice and opportunity to be heard and that findings are based upon evidence) is consistent with due process

Syllabus.

is not an unconstitutional and Pp. 47, 51.

invasion of the judicial power.

(6) The Act requires a public hearing and that all proceedings

upon a particular claim shall be shown in the record and open to challenge and opposing evidence; facts known to the deputy com- missioner but not put in evidence will not support a compensation order. P. 48.

(7) The provision that the deputy commissioner shall not be

bound by the rules of evidence applicable in a court or by technical rules of procedure is compatible with due process provided the sub- stantial rights of the parties be not infringed.

Id.

(8) Equipping the admiralty courts with power of injunction, for

enforcing the standards of maritime law as defined by the Act, is consistent with Art. III of the Constitution. P. 49.

(9) Where the question of fact relates to either of the two funda-

mental and jurisdictional conditions of the statute, viz., (a) occur- rence of the injury upon navigable waters of the United States, and (b) existence of the relation of master and servant, the finding of the deputy commissioner is not conclusive, but the question is de- terminable de vovo by the court on full pleadings and proofs in a suit for an injunction, in which the court is not confined to the evi- dence taken and record made before the deputy commissioner. The statute is susceptible of this construction and must be so construed to avoid unconstitutionality. Pp. 54, 62.

(10) In amending and revising the maritime law, Congress can

not reach beyond the constitutional limits of the admiralty and maritime jurisdiction. P. 55.

(11) Congress has no general authority to amend the maritime

law so as to establish liability without fault in maritime cases regard- less of particular circumstances or relations,-in this instance, the relation of master and servant. P. 56.

7. As respects the power of Congress to provide for determinations of

fact otherwise than through the exercise of the judicial power re- posed by the Constitution in the courts of the United States, a clear distinction exists between cases arising between the Govern- ment and other persons which by their nature do not require judicial determination (though they may be susceptible of it) and cases of private right, that is, of the liability of one individual to another under the law as defined. P. 50.

8. Proper maintenance of the federal judicial power in enforcing con-

stitutional restrictions precludes a power in Congress to substitute for constitutional courts, in which the judicial power of the United

22

Argument for Petitioner.

States is vested, an administrative agency for the final determination of facts upon which the enforcement of the constitutional rights of the citizen depend. P. 56.

9. A State, on the other hand, may distribute its powers as it sees fit,

provided only that it acts consistently with the essential demands of due process and does not transgress restrictions of the Federal Con- stitution applicable to state authority. P. 57.

10. The power of Congress to change the procedure of the courts of

admiralty would not justify lodging in an administrative officer final decision of facts upon which the constitutional rights of individuals are dependent. P. 61.

11. In deciding upon the validity of an Act of Congress, regard must

be had to substance rather than form. P. 53.

12. Where the validity of an Act of Congress is drawn in question or

where a serious doubt of its constitutionality is raised, it is a cardi- nal principle that the court will first ascertain whether a construc- tion of the Act is fairly possible by which the question may be avoided. P. 62.

13. A declaration in a statute that if any of its provisions, or the

application thereof to any persons or circumstances, shall be found unconstitutional, the validity of the remainder of the statute and the applicability of its provisions to other persons or circumstances shall not be affected, evidences an intention that no implication from the terms of the Act which would render them invalid should be indulged. P. 63.

45 F. (2d) 66, affirmed.

CERTIORARI, 283 U. S. 814, to review a decree which af- firmed a decree of the District Court, 33 F. (2d) 137; 38 id. 306, enjoining the enforcement of an award of com- pensation made by a deputy commissioner under the Longshoremen's and Harbor Workers' Compensation Act.

Solicitor General Thacher, with whom Mr. Erwin N.

Griswold was on the brief, for Crowell, petitioner.

This statute is a comprehensive workmen's compensa- tion law, modeled after the New York state compensa- tion law. See H. Rep. No. 1190, 69th Cong., 1st Sess.,

p. 2

Argument for Petitioner.

Unless the provision confining court review to ques- tions of law is valid, the time required for final deter- ruination of awards will be greatly increased and the Act will have fallen far short of its mark.

The provision that the administrative determination of fact shall be conclusive in the courts, when supported by evidence, is found in a great majority of the state workmen's compensation laws. The state courts have without exception upheld such provisions.

In at least two instances this Court has considered state workmen's compensation laws which contained pro- visions that administrative findings of fact should be final. New York Central R. Co. v. White, 243 U. S. 188; Booth Fisheries Co. v. Industrial Commission, 271 U. S.

208.

Under § 21, the only ground on which a compensation order may be set aside is that it is " not in accordance with law." This language was adopted from the statutory pro- vision for review of the decisions of the Board of Tax Ap- peals, § 1003 (b), Rev. Act 1926, under which it is set- tled that the Board's determinations of fact, when sup- ported by evidence, are conclusive. Phillips v. Commis- sioner, 283 U. S. 589; Old Colony Trust Co. v. Commis- sioner, 279 U. S. 716; Avery v. Commissioner, 22 F. (2d) 6; American Savings Bank & Tr. Co. v. Burnet, 45 F. (2d) 548; Nichols v. Commissioner, 44 F. (2d) 157; Bedell v.

Commissioner, 30 F. (2d) 622. There is no room for any other construction of the same words as they are used in the present Act.

Had Congress intended a trial de novo, the jurisdiction of the court would not have been limited to consideration of the legality of the administrative order. The words " if not in accordance with law," which plainly limit the power of the court to " suspend or set aside" the order, like the words "as the facts and law of the case may

22

Argument for Petitioner.

warrant" under consideration in Ma-King Co. v. Blair, 271 U. S. 479, 483, merely give the court authority to de- termine whether the order is based upon an error of law, is wholly unsupported by the evidence, or is arbitrary or capricious. This interpretation is strongly supported by the frame and purpose of the Act as a whole.

All the provisions of the Act dealing with the manner in which a remedy is given to an injured employee and the limited time within which action must be taken, indicate a clear intention that the facts shall be speedily determined by the deputy commissioner so that compen- sation may be awarded without the delay usually inci- dent to litigation in the courts.

The due process clause of the Fifth Amendment is fully satisfied by the provision for a hearing before an administrative tribunal and for a'judicial review of the is administrative determination "not in accordance with law." Reetz v. Michigan, 188

U. S. 505, 507; TVeimer v. Bunbury, 30 Mich. 201, 211;

Long Island Water Co. v. Brooklyn, 166 U. S. 685, 695; Phillips v. Commissioner, 283 U. S. 589, 600.

if that determination

In numerous instances Congress has expressly provided that administrative findings of fact when supported by evidence shall be conclusive. Fed. Tr. Comm. Act, U. S. C., Tit. 15, § 45; Clayton Act, id. § 21; Tariff Act, 1922,

U. S. C., Tit. 19, § 176; Tariff Act, 1930, U. S. C., Supp.

IV, Tit. 19, § 1337 (c) ; Radio Act, id. Tit. 47, § 96.

In many decisions of this Court statutes of this type have been applied, and in other decisions findings of administrative bodies have been held conclusive, even though the statutes involved did not explicitly so provide.

Federal Trade Comm. v. Curtis Pub. Co., 260 U. S. 568, 580; International Shoe Co. v. Federal Trade Comm., 280

The courts will not review the findings of fact of the Interstate Commerce Commission by passing upon the

28

Argument for Petitioner.

credibility of witnesses or the effective weight of testi- mony. See e. g., Interstate Commerce Comm. v. Dela- ware, L. & W. R. Co., 220 U. S. 235, 251; id. v. Union Pac.

R. Co., 222 U. S. 541; id. v. Louisville & N. R. Co., 227

U. S. 88; Western Papermakers Co. v. United States, 271

U. S. 268; Virginian Ry. Co. v. United States, 272 U. S.

658, 663.

Decisions of heads of executive departments upon ques- tions of fact are final and conclusive. Bates & Guild Co. v.

Payne, 194 U. S. 106; Public Clearing House v. Coyne, 194 U. S. 407; Houston v. St. Louis Packing Co., 249 U. S.

479; Tagg Bros. & Moorhead v. United States, 280 U. S.

420, 443, 444; Medbury v. United States, 173 U. S. 492; Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538; United States v.

Ju Toy, 198 U. S. 253; Quon Quon Poy v. Johnson, 273

So of determinations of fact by other administrative officials. Passavant v. United States, 148 U. S. 214; Smelting Co. v. Kemp, 104 U. S. 636; Burfenning v. Chi- cago, St. P., M. & 0. Ry. Co., 163 U. S. 321, 323; Johnson

v. Drew, 171 U. S. 93; Silberschein v. United States, 266

U. S. 221; United States v. Williams, 278 U. S. 255; Ma-

King Co. v. Blair, 271 U. S. 479, 483; Williamsport Wire Rope Co. v. United States, 277 U. S. 551.

Findings of fact of the Board of Tax Appeals are con- clusive upon the courts. Phillips v. Commissioner, 283

U. S. 589. See also Old Colony Trust Co. v. Commis-

sioner, 279 U. S. 716.

There is nothing in the Constitution establishing a uni- versal rule that there must be a trial de novo in the tcourts in all suits to set aside decisions made by admin- istrative authorities. The award of compensation by a deputy commissioner and the finding of facts upon which it is made are not different by nature from findings and

22

Argument for Petitioner.

orders made by the Federal Trade Commission, the Inter- state Commerce Commission, or other administrative bodies.

The jurisdiction of the District Court under § 21 (b) is limited to a determination of the question whether the order is "not in accordance with law." This requires a consideration of the case on the record made before the deputy commissioner. If there is substantial evidence to support the order, the findings of the deputy commis- sioner are conclusive.

Distinguishing: Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287; Bluefield Co. v. Public Serv.

Comm., 262 U. S. 679, 689; Lehigh Valley R. Co. v. Com- missioners, 278 U. S. 24, 37-41; Liu Hop Fong v. United States, 209 U. S. 453, 461; Ng Fung Ho v. White, 259

U. S. 276, 284. See Dickinson, Administrative Justice and

the Supremacy of Law (1927) pp. 39-75; Frankfurter, The Task of Administrative Law (1927) 75 U. of P. L.

Rev. 614, 619-20.

The decision in the Ohio Valley Water Co. case is simply that a legislative rate-making order of a commis- sion must be subject to the same reiview as an act of the legislature. It did not overrule decisions arising in other fields of administrative activity in which it has repeatedly .been held that determinations of fact may be made con- clusive when they are supported by evidence.

Indeed, many such decisions have been announced by this Court since the decision of the Ohio Valley Water Co. case.

See e. g., Federal Trade Comm. v. Curtis Pub. Co., 260

U. S. 568, 580; Virginian Ry. Co. v. )United States, 272

U. S. 658, 663; United States v. Williams, 278 U. S. 255;

Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 443-444; Phillips v. Commissioner, 283 U. S. 589.

In the present case the administrative proceedings were not legislative in character but were brought to de- termine a present liability based on past facts and exist-

30

Argument for Petitioner.

In such a case the administrative body ing legislation. is sitting in a quasi-judicial capacity, and under the nu- merous decisions of this Court, heretofore referred to, its conclusions on the facts when supported by evidence may properly be made conclusive.

The Liu Hop Fong case is clearly no more than a de- termination that the statute there involved by its terms provided for a trial de novo on an appeal to the District Court.

In Ng Fung Ho v. White, 259 U. S. 276, the question of citizenship was considered to be jurisdictional, because, if the person was a citizen, the Secretary of Labor was wholly without authority to order his deportation. Of course, administrative determinations are valid only when they are made within the power which has been conferred.

The determination of the question whether the adminis- trative officer has exceeded his authority is essentially a question of law, subject to review in the courts. No such question arises in this case. The statute defines the com- It grants "full power and au- missioner's jurisdiction. in respect thority to hear and determine all questions" of the claim for compensation. § 19 (a).

It follows that Knudsen's assertion of employment, made in his claim and disputed by Benson, presented a question which the com- missioner had power-that is, jurisdiction-to determine.

There was nothing inherent in the nature of this issue to distinguish it from other questions of fact which may constitutionally be left to administrative determination.

At the time Knudsen was employed, Benson had notice through the Act that liability might be imposed. The lia- bility was a risk incidental to his business. Probably the present question would never have been raised were it not In all for the decision in the Ohio Valley Water Co. case. of the other numerous cases involving it in the lower fed- eral courts, the contention we make has been sustained.

22

Argument for Petitioner.

A great majority of the state workmen's compensation acts expressly provide that administrative findings of fact shall be final. Apparently without a single exception such provisions have been held valid and constitutional by the state courts. The decisions reaching this result are too numerous to catalogue. See especially Nega v. Chi- cago Rys. Co., 317 Ill. 483; Helfrick v. Dahlstron Metal- lic Door Co., 256 N. Y. 199.

There is no basis for the contention that the federal district courts sitting in admiralty are the only tribunals competent to consider compensation for injuries sustained on navigable waters. When the injury is such that it is merely a matter of local concern, compensation may be had under the state compensation laws and the award may be made by the administrative tribunals created by the State. Seamen injured on navigable waters may re- cover under the Jones Act in actions at law commenced in state courts. When the remedy sought is in personam, it may be by libel in the District Court, or by an action at law in a federal or state court.

This enactment was within the power of Congress to alter, amend, or revise the maritime law. No limitation upon the exercise of this power is to be found in the words of the Constitution extending the judicial power of the United States to all cases of admiralty and maritime. jurisdiction.

The court below erred in directing a transfer from the equity to the admiralty side.

Mr. Alexis T. Gresham, with whom Mr. Palmer Pillans was on the brief, for Knudsen, petitioner.

The question relates solely to the procedural provi- sions of the Act. The makers of the Constitution were not concerned with fixing the jurisdiction of the lower courts of the general Government as between Congress

Argument for Respondent.

and the judiciary, much less with establishing the pro- cedure of such courts. To reach the conclusion found by the courts below, it must be held that the Constitu- tion denies the right of the Congress to fix the procedure of the lower federal courts in respect to the determination of. facts. But even the States may in matters of mere local concern exclude the jurisdiction of the admiralty courts over cases to which the jurisdiction otherwise would extend. However, the power of the Congress in the maritime law is broad and paramount. By it that law has from time to time been -materially changed, the juris- diction of the lower federal courts defined and restricted, the procedure of the district courts sitting in admiralty de- fined and regulated.

In fields of congressional activity other than the maritime field Congress has restricted the jurisdiction of the inferior federal tribunals, and has done Jurisdic- so constitutionally, as this court has decided. tion, either original or appellate, may extend (save in cer- tain cases before this Court) as Congress wills. There is no distinction in the congressional grants of judicial power between the field of maritime activity and other fields en- trusted to the general Government.

If the Congress may restrict the jurisdiction of the inferior federal courts to limits beyond which those courts had theretofore exercised jurisdiction, as respecting cases arising under the Constitu- tion and laws of the United States, it may so limit cases within the admiralty and maritime jurisdiction. A for- tiori Congress may, in a proceeding under a maritime workers' compensation act, require determinations of fact in the first instance to be reached by an administrative officer.

Mr. Harry T. Smith, with whom Mr. Vincent F. Kil- born. was on the brief, for respondent.

The ruling on the motions to dismiss the bill did not raise the question of whether the cause was triable de

22

Argument for Respondent.

novo, or in admiralty, and petitioners entered upon a de novo trial in the District Court, offered evidence and took their chance of a favorable decision, without objec- tion or exception to such procedure, and should not be heard to complain that the proceedings were irregular or erroneous. Commissioner v. St. Louis S. W. Ry. Co., 257 U. S. 547; Reavis v. Fianza, 215 U. S. 16, 25.

The only issue in fact tried and decided by the Dis- trict Judge was whether or not Knudsen was an employee of Benson. If he was not, the deputy commissioner had no power or jurisdiction to enter an award in his favor.

Ng Fung Ho v. White, 259 U. S. 276; United States v.

Grimley, 137 U. S. 147; Crowell v. Benson, 45 F. (2d) 66; Pine v. Industrial Comm., 108 Okla. 185; Borgnis v.

Falk Co., 147 Wis. 327; Courter v. Simpson Const. Co., 264 Ill. 488; Hunter v. Colfax Consol. Coal Co., 175 Ia.

245; Uphofi v. Industrial Board, 271 Ill. 312; Hahne- mann Hospital v. Industrial Board, 282 Ill. 316; Thede Bros. v. Industrial Comm., 285 Ill. 483; Paul v. Indus- trial Comm., 289 Ill. 532; Dorlon Bros. v. Industrial Comm., 173 Cal. 250; Roberts v. Industrial Comm., 52 Cal. App. 31; Industrial Comm. v. Evans, 52 Utah 394.

The jurisdiction of the deputy commissioner being spe- cial and limited, the District Court had the right to de- termine, on its independent judgment of the law and the evidence offered before it, whether jurisdiction to make the award existed, or whether the deputy commissioner acted beyond and without his jurisdiction. Fundamental and jurisdictional questions are always open to determina- tion in the courts, whether the order or decision be made by a court of special or limited jurisdiction, or by an administrative board or body; the question of whether such a board or body acted within or beyond its jurisdic- tion is always a judicial question. Ng Fung Ho v. White, 259 U. S. 276; United States v. Grimley, 137 U. S. 147; Hawkins v. Bleakly, 243 U. S. 210, 215; Kempe's Lessee

137818 0-32-3

Argument for Respondent.

v. Kennedy, 5 Oranch 173, 185; McClaughry v. Deming,

186 U. S. 49, 63; Runkle v. United States, 122 U. S. 543, 555; Givens v. Zerbst, 255 U. S. 11, 19.

The question as to whether such an award is subject to review de novo upon matters other than the jurisdic- tional facts does not seem to us to be material, as it was the find4ug of the court in this case that the jurisdictional' facts did not exist.

Since it is provided by the Constitution that no citizen shall be deprived of life, liberty and property without due process of law, what difference does it make under what classification we may place the commissioner?

Surely it matters not from what source authority may be obtained or what powers Congress may attempt to con- fer upon him, he can never be so empowered as to enable him to condemn a citizen to liability to another, by any proceedings which may be beyond the limits of his juris- diction; and this proposition is accentuated when it ap- pears, hs in this case, that the order has not been based entirely upon the evidence produced at a hearing, but has been based, at least in part, upon the information obtained by the commissioner from other sources.

To limit the court, in its review of the jurisdictional facts, to a consideration of the evidence offered before the commissioner at the hearing would make it impossible for the court to consider the question of jurisdiction at all, since the commissioner was not required to and did not reveal in his report either the nature or the result of the private inquiries upon which he relied, in part or in whole, for his finding, so that such findings as he made could not be reviewed except upon a proceeding de novo.

There is no express provision in the Act for an appeal only on questions of law or that the commissioner's find- ing of facts shall be conclusive if supported by any sub- stantial evidence. The method of review provided is in a court ordinarily of original jurisdiction only, and the

22

Argument for Respondent.

proceeding prescribed is original in character. There is no provision in regard to how the proceedings in the court shall be heard, nor as to what papers shall be filed or what testimony given. There is no provision that the proceedings shall be upon a transcript of the proceedings before the commissioner or for bringing up a record by bill of exceptions. Every consideration exists in this case that influenced the court to hold in the case of Liu Hop Fong

v. United States, 209 U. S. 453, 461-2, that a Chinaman

appealing to the District Court from the judgment or order of a United States Commissioner in cases arising under the Chinese Exclusion Law, is entitled to a trial de novo.

The case is one within the admiralty and maritime jur- isdiction, and even on appeal in such cases, unless Con- gress has clearly indicated the contrary, the trial is de novo both on the law and the facts.

The expression "not in accordance with law " is equivo- cal and should not be so construed as to take away juris- diction of admiralty cases of this character expressly and clearly conferred on the federal courts.

The Act if construed to accord a hearing de novo in the District Court, will not materially affect a speedy hearing in most cases; and if it did, justice should not be sac- rificed to speed, nor should the clear jurisdiction conferred on district courts be withdrawn by implication from an argument of convenience.

The fact that, while the Act is modeled on the New York Act, it omits the provisions of that Act making the finding of the commissioner fin)al on all questions of fact and providing for the certifying only of questions of law, is strongly indicative that Congress never intended an appeal only on questions of law.

Conceding the power of Congress, a party should not be deprived of the security of a judicial hearing heretofore plainly provided for, unless that result is made necessary by clear and unmistakable language.

Opinion of the Court.

This is a case or controversy under a new system of admiralty or maritime rules; and the application of those rules to a past state of facts, so as to determine liability vel non as between a contesting employer and employee, involves the exercise of the judicial power of the Fed- eral Government which, under Art. 3, §§ 1 and 2 of the Constitution, can only be exercised by a constitutional court created under that article. Ex parte Bakelite Corp., 279 U. S. 438; American Ins. Co. v. Carter, 1 Pet. 511, 546; Den v. Hoboken Land & Imp. Co., 18 How. 272; Kansas v. Colorado, 206 U. S. 46.

Any attempt by Congress to confer this judicial power or jurisdiction on any federal administrative officer, board or legislative court would violate that article, and like- wise would violate the due process clause of the Fifth Amendment, because it is not the process provided for such cases by the Constitution. Martin v. Hunter's Les- see, 1 Wheat. 304; Ng Fung Ho v. White, 259 U. S. 276.

To construe the Act as contended for by petitioners would at least raise a grave question as to its constitu- tionality which should always be avoided, if possible.

United States v. Jin Fuey Moy, 241 U. S. 394, 401; United States v. La Franca, 282 U. S. 568; Russian Vol- unteer Fleet v. United States, 282 U. S. 481.

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

This suit was brought in the District Court to enjoin the enforcement of an award made by petitioner Crowell, as deputy commissioner of the United States Employees' Compensation Commission, in favor of the petitioner Knudsen and against the respondent Benson. The award was made under the Longshoremen's and Harbor Work- ers' Compensation Act (Act of March 4, 1927, c. 509, 44 Stat. 1424; U. S. C. Tit. 33, §§ 901-950) and rested upon

22

Opinion of the Court.

the finding of the deputy commissioner that Knudsen was injured while in the employ of Benson and perform- ing service upon the navigable waters of the United States.

The complainant alleged that the award was contrary to law for the reason that Knudsen was not at the time of his injury an employee of the complainant and his claim was not 'within the jurisdiction' of the deputy commissioner.

An amended complaint charged that the Act was uncon- stitutional upon the grounds that it violated the due proc- ess clause of the Fifth Amendment, the provision of the Seventh Amendment as to trial by jury, that of the Fourth Amendment as to unreasonable search and seizure, and the provisions of Article III with respect to the judicial power of th3 United States. The District Judge denied motions to dismiss and granted a hearing de novo upon the facts and the law, expressing the opinion that the Act would be invalid if not construed to. permit such a hearing.

The case was transferred to the admiralty docket, answers were filed presenting the issue as to the fact of employ- ment, and the evidence of both parties having been heard, the District Court decided that Knudsen was not in the employ of the petitioner and restrained the enforcement of the award. 33 F. (2d) 137; 38 F. (2d) 306. The decree was affirmed by the Circuit Court of Appeals, 45 F. (2d) 66, and this Court granted writs of certiorari.

The question of the validity of the Act may be con- sidered in relation to (1) its provisions defining substan- tive rights and (2) its procedural requirements.

First. The Act has two limitations that are fundamen- tal.

It deals exclusively with compensation in respect of disability or death resulting "from an injury occurring upon the navigable waters of the United States" if re- covery " through workmen's compensation proceedings

Opinion of the Court.

may not validly be provided by State law," and it applies only when the relation of master and servant exists. § 3."

"Injury," within the statute, "means accidental injury or death arising out of and in the course of employment," and the term "employer" means one "any of whose em- ployees are employed in maritime employment, in whole or in part," upon such navigable waters. § 2 (2) (4).

Employers are made liable for the payment to their em- ployees of prescribed compensation " irrespective of fault as a cause for the injury." § 4. The liability is exclusive, unless the employer fails to secure payment of the com- pensation. § 5. The employer is required to furnish ap- propriate medical and other treatment. § 7. The com- pensation for temporary or permanent disability, total or partial, according to the statutory classification, and in case of the death of the employee, is fixed, being based upon prescribed percentages of average weekly wages, and the persons to whom payments are to be made are desig- nated. §§ 6, 8, 9, 10. Employers must secure the pay-

"Sec. 3. (a) Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disa- bility or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation pro- ceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of-

'"(1) A master or member of a crew of any vessel, nor. any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or

"(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof.

"(b) No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another."

22

Opinion of the Court

ment of compensation by procuring insurance or by be- coming self-insurers in the manner stipulated. § 32.

Failure to provide such security is a misdemeanor. § 38.

As the Act relates solely to injuries occurring upon the navigable waters of the United States, it deals with the maritime law, applicable to matters that fall within the admiralty and maritime jurisdiction (Const. Art. III, § 2; Nogueira-v. N. Y., N. H. & H. R. Co., 281 U. S. 128, 138); and the general authority of the Congress to alter or revise the maritime law which shall prevail throughout the country is beyond dispute. 2 In limiting the applica- tion of the Act to cases where recovery "through work- men's compensation proceedings may not validly be pro- vided by State law," the Congress evidently had in view the decisions of this Court with respect to the scope of the exclusive authority of the national legislature.3 The pro-

'Waring v. Clarke, 5 How. 441, 457, 458; The Lottawanna, 21 Wall.

558, 577; Butler v. Boston & Savannah Steamship Co., 130 U. S. 527, 556, 557; In re Garnett, 141 U. S. 1, 14; The Hamilton, 207 U. S.

398, 404; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 62; Southern Pacific Co. v. Jensen, 244 U. S. 205, 214, 215; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 160; Washington v. Dawson, 264

U. S. 219, 227, 228; Panama R. Co. v. Johnson, 264 U. S. 375, 386,

388.

Important illustrations of the exercise of this authority are the Limitation of Liability Act of 1851 (9 Stat. 635; Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U. S. 207, 213-215); the Seamen's Act of 1915 (38 Stat. 1185; Chelentis v. Luckenbach Steam- ship Co., 247 U. S. 372, 381, 384); the Ship Mortgage Act of 1920 (41 Stat. 1000; Morse Drydock & Repair Co. v. Northern Star, 271

U. S. 552, 555, 556); and the Merchant Marine Act of 1920, incorpo-

rating, in relation to seamen, the Federal Employers' Liability Act into the maritime law of the United States (41 Stat. 1007; Panama

R. Co. v. Johnson, supra; Engel v. Davenport, 271 U. S. 33, 35; Pan-

ama R. Co. v. Vasquez, 271 U. S. 557, 559, 560; Northern Coal Co.

v. Strand, 278 U.S. 142, 147).

See U. S. C., Titles 33 and 46.

3 Southern Pacific Co. v. Jensen, 244 U. S. 205; Knickerbocker Ice Co. v. Stewart, 253 U S. 149; Washington v. Dawson, 264 U. S. 219;

Opinion of the Court.

priety of providing by Federal statute for compensation of employees in such cases had been expressly recog- nized by this Court,4 and within its sphere the statute was designed to accomplish the same general purpose as the workmen's compensation laws of the States.'

In de-

Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449. For decisions since the passage of the Act in question, see Messel v. Foundation Co., 274 U. S. 427; Northern Coal & Dock Co. v. Strand, 278 U. S. 142; London Guarantee & Accident Co. v. Industrial Commission, 279

U. S. 109, 125; Baizley Iron Works v. Span, 281 U. S. 222.

The application of State Workmen's Compensation Acts has been sustained where the work of the employee has been deemed to have no direct relation to navigation or commerce and the operation of the local law "would work no material prejudice to the essential features of the general maritime law." Western Fuel Co. v. Garcia, 257 U. S.

233, 242; Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 477; Millers' Indemnity Underwriters v. Braud, 270 U. S. 59, 64; Sultan Railway & Timber Co. v. Department of Labor, 277 U. S, 135, 137; Baizley Iron Works v. Span, supra, at pp. 230, 231. See, also, Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109.

4 Washington v. Dawson, 264 U. S. 219, 227, where the Court said "Without doubt Congress has power to alter, amend or revise the maritime law by statutes of general application embodying its will and judgment. This power, we think, would permit enactment of a general employers' liability law or general provisions for compensat- ing injured employees; but it may not be delegated to the several States."

- The Committee on the Judiciary of the Senate, in reporting upon the proposed measure, said (Sen. Rep. No. 973, 69th Cong., 1st

"The committee deems it unnecessary to comment upon the mod- ern change in the relation between employers and employees estab- lishing systems of conipensation as distinguished liability.

Nearly every State in the Union has a compensation law through which employees are compensated for injuries occurring in the course of their employment without regard to negligence on the part of the employer or contributory negligence on the part of the employee.

If longshoremen could avail themselves of the benefits of State com- pensation laws, there would be no occasion for this legislation; but, unfortunately, they are excluded from these laws by reason of the character of their employment; and they are not only excluded but

from

22

Opinion of the Court.

fining substantive rights, the Act provides for recovery in the absence of fault, classifies disabilities resulting from injuries, fixes the range of compensation in case of disability or death, and designates the classes of bene- ficiaries.

In view of Federal power to alter and revise the maritime law, there appears to be no room for ob- jection on constitutional grounds to the creation of these rights, unless it can be found in the due process clause of the Fifth Amendment. But it cannot be said that either the classifications of the statute or the extent of the compensation provided are unreasonable.

In view of the difficulties which inhere in the ascertainment of actual damages, the Congress was. entitled to provide for the payment of amounts which would reasonably ap- proximate the probable damages. See Chicago, B. & Q.

R. Co. v. Cram, 228 U. S. 70, 84; compare Missouri Pa-

cific Ry. Co. v. Tucker, 230 U. S. 340, 348. Liability without fault is not unknown to the maritime law,6 and,

the Supreme Court has more than once held that Federal legislation can not, constitutionally, be enacted that will apply State laws to this occupation.

(Southern Pacific Co. v. Jensen, 244 U. S. 205; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; Washington v.

Dawson & Co., 264 U. S. 219.)" The House Committee in its report made the following statement

"The principle of workmen's compensation has become so firmly established that simple justice would seem to require that this class of maritime workers should be included in this legislation.

"The bill as amended, therefore, will enable Congress to discharge its obligation to the maritime workers placed under their jhrisdiction " by the Constitution of -the United States by providing for them a law whereby they may receive the benefits of workmen's compensation and thus afford them the same remedies that have been provided by legislation for those killed or injured in the course of their employ- ment in nearly every State in the Union."

'See, e. g., The'Osceola, 189 U. S. 158, 169; The Iroquois,-194 U. S.

In Chicago, R. I. & P. R. Co. v. Zernecke, 183 U. S. 240, 241, 242.

582, 586, the Court said: "Our jurisprudence affords examples of legal liability without fault, and the deprivation of property without

Opinion of the Court.

apart from this fact, considerations are applicable to the substantive provisions of this legislation, with respect to the relation of master and servant, similar to those which this Court has found sufficient to sustain workmen's com- pensation laws of the States against objections under the due process clause of the Fourteenth Amendment. New York Central R. Co. v. White, 243 U. S. 188; Mountain Timber Co. v. Washington, 243 U. S. 219; Ward & Gow

v. Krinsky, 259 U. S. 503; Lower Vein Coal Co. v. In-

dustrial Board, 255 U. S. 144; Madera Sugar Pine Co. v.

Industrial Accident Comm., 262 U. S. 499, 501, 502; Shee- han Co. v. Shuler, 265 U. S. 371; Dahlstrom Metallic Door Co. v. Industrial Board, 284 U. S. 594. See Nogueira

v. N. Y., N. H. & H. R. Co., sapra, at pp. 136, 137.

Second. The objections to the procedural requirements of the Act relate to the extent of the administrative au- thority which it confers. The administration of the Act- ' except as otherwise specifically provided '-was given to the United States Employees' Compensation Commis- sion,7 which was authorized to establish compensation dis- tricts, appoint deputy commissioners, and make regula- tions. §§ 39, 40. Claimants must give written notice to the deputy commissioner and to the employer of the in- jury or death within thirty days thereafter; the deputy commissioner may excuse failure to give such notice for satisfactory reasons. § 12.

If the employer contests the right to compensation, he is to file notice to that effect. § 14 (d). A claim for compensation must be filed with

fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in admiralty law is an- other." See Holmes, "The Common Law," pp. 26-29; The China, 7 Wall. 53, 67, 68; Sherlock v. Alling, 93 U. S. 99, 105-108; Homer Ramsdell Co. v. Compagnie G~ngrale Transatlantique, 182 U. S. 406, 413, 414. As to the basis of general average contribution, see Ralli

v. Troop, 157 U. S. 386, 394, 395.

' This Commission was created by the Act of September 7, 1916, c, 458, § 28, 39 Stat. 748; U. S. C., Tit. 5, § 778.

22

Opinion of the Court.

the deputy commissioner within a. prescribed period, and it is provided that the deputy commissioner shall have full authority to hear and determine all questions in re- spect to the claim. §§ 13, 19 (a). Within ten days after the claim is filed, the deputy commissioner, in accordance with regulations prescribed by the Commission, must notify the employer and any other person who is con- sidered by the deputy commissioner to be an interested party. The deputy commissioner is required to make, or cause to be made, such investigations as he deems to be necessary and upon application of any interested party must order a hearing, upon notice, at which the claimant and the employer may present evidence. Employees claiming compensation must submit to medical examina- tion. § 19.

In conducting investigations and hearings, the deputy commissioner is not bound by common law or statutory rules of evidence, or by technical or formal rules of procedure, except as the Act provides, but he is to proceed in such manner "as to best ascertain the rights of the parties." § 23 (a). He may issue subpoenas, adminis- ter oaths, compel the attendance and testimony of wit- nesses, the production of documents or other evidence or the taking of depositions, and may do all things conform- able to law which may be necessary to enable him effec- tively to discharge his duties. Proceedings may be brought before the appropriate Federal court to punish for misbehavior or contumacy as in case of contempt. § 27.

Hearings before the deputy commissioner are to be public and reported stenographically, and the Commission is to provide by regulation for the preparation of a record. § 23 (b). 8 Compensation orders are to be filed in the office of the deputy commissioner, and copies must be sent

'In the regulations promulgated by the Commission in the form cf instructions to deputy commissioners, provision was made for find- ings of fact. Rejpsrt, United States Employees' Compensation Com- mission, for fiscal year ending June 30, 1930, p. 64. See Howard v.

Monahan, 33 F. (2d) 220.

Opinion of the Court.

to the claimant and employer. § 19. The Act provides that it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of the Act, that sufficient notice of claim has been given, that the injury was not occasioned solely by the intoxication of the injured employee, or by the will- ful intention of such employee to injure or kill himself or another. § 20. A compensation order becomes effective when filed, and unless proceedings are instituted to sus- pend it or set it aside, it becomes final at the expiration of thirty days. § 21 (a).

If there is a change in condi- tions, the order may be modified or a new order made. § 22.

In case of default for thirty days in the payment of compensation, application may be made to the deputy commissioner for a supplementary order declaring the amount in default. Such an order is to be made after investigation, notice and hearing, as in the case of claims.

Upon filing a certified copy of the supplementary order with the clerk of the Federal court, as stated, judgment is to be entered for the amount declared in default, if such supplementary order "is in accordance with law."

Review of the judgment may be had as in civil suits for damages at common law and the judgment may be enforced by writ of execution. § 18.

The Act further provides that if a compensation order is "not in accordance with law," it "may be suspended or set aside, in whole or in part, through injunction pro- ceedings, mandatory or otherwise, brought by any party in interest" against the deputy commissioner making the order and instituted in the Federal district court for the judicial district in which the injury occurred.' Payment is not to be stayed pending such proceedings unless, on hearing after notice, the court allows the stay on evi-

In the District of Columbia, the proceedings are to be instituted in the Supreme Court of the District.

22

Opinion of the Court.

dence showing that the employer would otherwise suffer irreparable damage. § 21 (b). Beneficiaries of awards, or the deputy commissioner, may apply for enforcement to the Federal district court and, if the court deter- mines that the order "was made and served in accord- ance with law," obedience may be compelled by writ of injunction or other proper process. § 21 (c). 1"

As the claims which are subject to the provisions of the Act are governed by the maiitime law as established by the Congress and are within the admiralty jurisdic- tion, the objection raised by the respondent's pleading as to the right to a trial by jury under the Seventh Amendment is unavailing (Waring v. Clarke, 5 How. 441, 459, 460); and that under the Fourth Amendment is neither explained nor urged. The other objections as to procedure invoke the due process clause and the pro- vision as to the judicial power of the United States.

(1) The contention under the due process clause of

the Fifth Amendment relates to the determination of questions of fact. Rulings of the deputy commissioner upon questions of law are without finality. So far as

"The United States Employees' Compensation Commission esti- mates that the number of employees who at times are engaged in em- ployments covered by the Act is in excess of 300,000. Report for fiscal year ending June 30, 1931, p. 66.' The Commission states that 138,788 cases have been closed during the four years that the law has been in operation.

Id., p. 69. During the last fiscal year the in- juries reported under the Act numbered 28,861, of which 156 were 'fatal' cases. The total number of cases disposed of during that year, including those brought forward from the preceding years, was 30,489, of which there were 13,261 cases which caused no loss of time, and 4,067 of such cases in which the duration of dis- ability dld not exceed seven days. Compensation payments were completed in 11,776 cases. Hearings held by deputy commissioners during the fiscal year number 1,217, of which 905 involved compen- sation payments. At the end of the fiscal year, there were 102 cases pending in federal district courts wherein the plaintiffs asked review of compensation orders. Id., 68-70.

'non-fatal'

Opinion of the Court.

the latter are concerned, full opportunity is afforded for their determination by the Federal courts through pro- ceedings to suspend or to set aside a compensation order, § 21 (b), by the requirement that judgment is to be entered on a supplementary order declaring default only in case the order follows the law (, 18), and by the pro- vision that, the issue of injunction or other process in a proceeding by a beneficiary to compel obedience to a compensation order is dependent upon a determination by the court that the order was lawfully made and served. § 21 (c). Moreover, the statute contains no ex- press limitation attempting to preclude the court, in pro- ceedings to set aside an order as not in accordance with law, from making its own examination and determination of facts whenever that is deemed to be necessary to en- force a constitutional right properly asserted. See Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, 289; Ng Fung Ho v. White, 259 U. S. 276, 284, 285; Prendergast v. New York Telephone Co., 262 U. S. 43, 50; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 443, 444; Phillips v. Commissioner, 283 U. S. 589,

600. As the statute is to be construed so as to support

rather than to defeat it, no such limitation is to be im- plied. Panama Railroad Co. v. Johnson, 264 U. S. 375, 390.

Apart from cases involving constitutional rights to be appropriately enforced by proceedings in court, there can be no doubt that the Act contemplates that, as to ques- tions of fact arising with respect to injuries to employees within the purview of the Act, the findings of the deputy commissioner, supported by evidence and within the scope of his authority, shall be final. To hold otherwise would be to defeat the obvious purpose of the legislation to fur- nish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task.

22

Opinion of the Court.

The object is to secure within the prescribed limits of the employer's liability an immediate investigation and a sound practical judgment, and the efficacy of the plan depends upon the finality of the determinations of fact with respect to the circumstances, nature, extent and con- sequences of the employee's injuries and the amount of compensation that should be awarded. And this finality may also be regarded as extending to the determination of the question of fact whether the injury " was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or an- other." While the exclusion of compensation in such cases is found in what are called " coverage " provisions of the Act (§ 3), the question of fact still belongs to the contemplated routine of administration, for the case is one of employment within the scope of the Act and the cause of the injury sustained by the employee as well as its character and effect must be ascertained in applying the provisions for compensation. The use of the adminis- trative method for these purposes, assuming due notice, proper opportunity to be heard, and that findings are based upon evidence, falls easily within the principle of the decisions sustaining similar procedure against objec- tions under the due process clauses of the Fifth and Fourteenth Amendments."

The statute provides for notice and hearing; and an award made without proper notice, or suitable opportu-

"Long Island Water Supply Co. v. Brooklyn, 166 U. S. 6S5, 695; Crane v. Hahlo, 258 U. S. 142, 147; Federal Trade Comm. v. Curtis Publishing Co., 260 U. S. 568, 580; Silberschein v. United States, 266

U. S. 221, 225; Virginian Ry. Co. v. United States, 272 U. S. 658, 663;

Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 442; Inter- national Shoe Co. v. Federal Trade Comm., 280 U. S. 291, 297; Do- hany v. Rogers, 281 U. S. 362, 369; Phillips v. Commissioner, 2S3

U. S. 589, 600. See, also, Hardware Dealers Mutual Fire Ins. Co. v.

Glidden, 284 U. S. 151; New York Central R. R. Co. v. White, supra, at pp. 194, 207, 208; Mountain Timber Co. v. Washington, supra, at

p. 233.

Opinion of the Court.

nity to be heard, may be attacked and set aside as with- out validity. The objection is made that, as the deputy commissioner is authqrized to prosecute such inquiries as he may consider necessary, the award may be based wholly or partly upon an ex parte investigation and upon unknown sources of information, and that the hearing may be merely a formality. The statute, however, con- templates a public hearing and regulations are to require "a record of the hearings and other proceedings before the deputy commissioner." § 23 (b). This implies that all proceedings by the deputy commissioner upon a par- ticular claim shall be appropriately set forth, and that whatever facts he may ascertain and their souirces shall be shown in the record and be open to challenge and op- posing evidence. Facts conceivably known to the deputy commissioner, but not put in evidence so as to permit scrutiny and contest, will not support a conpensation order. Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 93; Th. Chicago Juncl:on Case, 264 U. S. 258, 263; United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 288. An award not sup- ported by evidence in the record is not in accordance with law. But the fact that the deputy commissioner is not bound by the rules of evidence which would be applicable to trials in court or by technical rules of procedure, § 23 (a), does not invalidate the proceeding, provided sub- Inter- stantial rights of the parties are not infringed.

state Commerce Comm. v. Baird, 194 U. S. 25, 44; Inter- state Commerce Comm. v. Louisville & Nashville R. Co., supra; Spiller v. Atchison, T. .& S. F. Ry. Co., 253 U. S. 117, 131; United States v. Abilene & Southern Ry. Co., supra; Tagg Bros. & Moorhead v. United States, supra, at p. 442.

(2) The eontention based upoii the judicial power of

the United States, as extended "to all cases of admiralty

22

Opinion of the Court.

and maritime jurisdiction" (Const. Art. III), presents a In Murray's Lessee v. Hoboken Land distinct question. and Improvement Co., 18 How. 272, 284, this Court, speaking through Mr. Justice Curtis, said: "To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider congress can either 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; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determi- nation."

The question in the instant case, in this aspect, can be deemed to relate only to determinations of ,fact. The reservation of legal questions is to the same court that has jurisdiction in admiralty, and the mere fact that the court is not described as such is unimportant. Nor is the pro- vision for injunction proceedings, § 21(b), opcn to ob- jection. The Congress was at liberty to draw upon an- other system of procedure to equip the court with suitable and adequate means for enforcing the standards of the maritime law as defined by the Act. The Genesee Chief, 12 How. 443, 459, 460. Compare Panama R. Co. v. John- son, supra, at p. 388. By statute and rules, courts of admiralty may be empowered to grant injunctions, as in the case of limitation of liability proceedings. Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273

U. S. 207, 218. See, also, Marine Transit Corporation v.

Dreyfus, 284 U. S. 263. The Congress did not attempt to define questions of law, and the generality of the de- scription leaves no doubt of the intention to reserve to the Federal court full authority to pass upon all matters which this Court had held to fall within that category. There is thus no attempt to interfere with, but rather provision is made to facilitate, the exercise by the court of its jur-

137818o-32-4

50

Opinion of the Court.

isdiction to deny effect to any administrative finding which is without evidence, or' contrary to the indisputable character of the evidence,' or where the hearing is 'inade- quate,' or 'unfair,' or arbitrary in any respect.

Commerce Comm. v. Louisville R. Co., supra, at pp. 91, 92; Tagg Bros. & Moorhead v. United States, supra.

Interstate-

As to determinations of fact, the distinction .is at once apparent between cases of private right and those which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments. The Court referred to this distinction in Murray's Lessee v. Hobolcen Land and Improvement Co., supra, pointing out that " 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." Thus the Congress, in exercising the powers confided to it, may establish 'legislative' courts (as dis- tinguished from 'constitutional courts in which the ju- dicial power conferred by the Constitution can be de- posited') which are to form part of the government of territories or of the District of Columbia,' or to serve as special tribunals "to examine and determine various the government and others, matters, arising between which from their nature do not require judicial deter- mination and yet are susceptible of it." But "the mode of determining matters of this class is completely Within congressional control. Congress may reserve to itself the power to decide, may delegate that power to execu- tive officers, or may commit it to judicial tribunals." Ex

"2American Insurance Co. v. Canter, 1 Pet. 511, 546; Keller v.

Potomac Electric Power Co., 261 U. S. 428, 442-444; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, 700.

22

Opinion of the Court.

parte Bakelite Corp., 279 U. S. 438, 451. Familiar illus- trations of administrative agencies created for the deter- ruination of such matters are found in connection with the exercise of the congressional power as to interstate and foreign commerce, taxation, immigration, the pub- lic lands, public health, the facilities of the post office, pensions and payments to veterans."

The present case does not fall within the categories just described but is one of private right, that is, of the liability of one individual to another under the law as defined. But in cases of that sort' there is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges. On the common law side of the Fed- eral courts, the aid of juries is not only deemed appropri- ate but is required by the Constitution itself.

In cases of equity and admiralty, it is historic practice to call to the assistance of the courts, without the consent of the parties, masters and commissioners or assessors, to pass upon certain classes of questions, as, for example, to take and state an account or to find the amount of damages.

While the reports of masters and commissioners in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are prop- erly based upon evidence, in the absence of errors of law, 14

1s Virginian Ry. Co. v. United States, supra; Tagg Bros. & Moor- head v. United States, supra; International Shoe Co. v. Federal Trade Comm., supra; Phillips v. Commissioner, s*pra; United States v. Ju Toy, 198 U. S. 253, 263; United States v. Babcock, 250 U. S. 328, 331; Burlenning v. Chicago, St. P., M. & 0. Ry. Co., 163 U. S. 321, 323; Bates & Guild Co. v. Payne, 194 U. S. 106, 109; Houston v.

St. Louis Packing Co., 249 U. S. 479, 484; Passavant v. United States, 148 U. S. 214, 219; Silberschein v. United States, 266 U. S. 221, 225.

"4As to masters in chancery, see Tilghman v. Proctor, 125 U. S. 136, 149, 150; Callaghan v. Myers, 128 U. S. 617, 666, 667; Ki'nbcrly v.

Arms, 129 U. S. 512, 523, 524.; Davis v. Schwartz, 155 U. S. 631, 636.

As to commissioners in admiralty, see The Cayuga (C. C. A. 6th), 59 Fed. 483, 488; La Bourgogne (C. C. A. 2nd), 144 Fed. 781, 782,

Opinion of the Court.

and the parties have no right to demand that the court In admiralty, shall redetermine the facts thus found. juries were anciently in use not only in criminal cases but apparently in civil cases also." The Act of February 26, 1845 (c. 20, 5 Stat. 726), purporting to extend the ad- miralty jurisdiction of the Federal district courts to cer- tain cases arising on the Great Lakes, gave the right "to trial by jury of all facts put in issue in such suits, where either party shall require it." After the decision in the case of The Genesee Chief, supra, holding that the Federal district courts possessed general jurisdiction in admiralty over the lakes, and navigable waters connecting them, under the Constitution and the Judiciary Act of 1789 (c. 20, § 9, 1 Stat. pp. 76, 77), this Court regarded the enabling Act of 1845 as "obsolete and of no effect, with the exception of the clause which gives to either party the right of trial by jury when requested." The Eagle, 8 Wall. 15, 25. And this provision, the court said, was "rather a mode of exercising jurisdiction than any sub- stantial part of it." See R. S. 566, U. S. C., Tit. 28, § 770.1 Chief Justice Taney, in delivering the opinion of the Court in the case of The Genesee Chief, supra, referring-to this requirement, thus broadly stated the au- thority of Congress to change the procedure in courts of

783; The North Star (C. C. A. 2nd), 151 Fed. 168, 177; Western Transit Co. v. Davidson S. S. Co. (C. C. A. 6th), 212 Fed. 696, 701;

P. Stanford Ross, Inc., v. Public Service Corp. (C. C. A. 3d), 42 Fed.

(2d) 79, 80.

14 Chr. Robinson's Admiralty. Reports, p. 74, note; Black Book of the Admiralty, Twiss' ed., vol. 1, pp. 49, 53, 245; 1 Abbott on Shipping, 5th Am. ed., pp. 283, 284; 1 Benedict's Admiralty, 5th ed.,

p. 304, note.

"' As to the effect of the verdict of the jury in such cases, see The Western States, 159 Fed. 354, 358, 359; Sweeting v. The Western States, 210 U. S. 433; The Nyack, 199 Fed. 383, 389; 1 Benedict's Admiralty, 5th ed., p. 305.

22

Opinion of the Court.

"The power of Congress to change the mode of pro- ceeding in this respect in its courts of admiralty, will, we suppose, hardly be questioned. The Constitution de- clares that the judicial power of the United States shall extend to 'all cases of admiralty and maritime jurisdic- tion.' But it does not direct that the court shall proceed according to ancient and established forms, or shall adopt any other form or mode of practice. The grant defines the subjects to which the jurisdiction may be extended by Congress. But the extent of the power as well as the mode of proceeding in which that jurisdiction is to be exercised, like the power and practice in all the other courts of the United States, are subject to the regulation of Congress, except where that power is limited by the terms of the Constitution, or by necessary implication from its language. In admiralty and maritime cases there is no such limitation as to the mode of proceeding, and Congress may therefore in cases of that description, give either party right of trial by jury, or modify the practice of the court in any other respect that it deems more con- ducive to the administration of justice."

It Amay also be noted that while on an appeal in ad- miralty cases "the facts as well as the law would be sub- jected to review and retrial," this Court has recognized the power of the Congress "to limit the effect of an appeal to a review of the law as applicable to facts finally determined below." The Francis Wright, 105

U. S. 381, 386; The Connemara, 108 U. S. 352, 359. Com-

pare Luckenbach S. S. Co. v. United States, 272 U. S. 533, 536, 537.

In deciding whether the Congress,

in enacting the statute under review, has exceeded the limits of its au- thority to 'prescribe procedure in cases of injury upon navigable waters, regard must be had, as in other cases where constitutional limits are invoked, not to mere mat- ters of form but to the substance of what is required.

54

Opinion of the Court.

The statute has a limited application, being confined to the relation of master and servant, and the method of determining the questions of fact, which arise in the rou- tine of making compensation awards to employees under the Act, is necessary to its effective enforcement. The Act itself, where it applies, establishes the measure of the employer's liability, thus leaving open for determination the questions of fact as to the circumstances, nature, ex- tent and consequences of the injuries sustained by the employee for which compensation is to be made in accord- ance with the prescribed standards. Findings of fact by the deputy commiss'oner upon such questions are closely analogous to the findings of the amount of damages that are made, according to familiar practice, by commission- ers or assessors;. and the reservation of full authority to the court to deal with matters of law provides for the appropriate exercise of the judicial function in this class of cases. For the purposes stated, we are unable to find any constitutional obstacle to the action of the Congress in availing itself of a method shown by experience to be essential in order to apply its standards to the thousands of cases involved, thus relieving the courts of a most serious burden while preserving their complete authority to insure the proper application of the law.

(3) What has been said thus far relates to the deter-

mination of claims of employees within the purview of the Act. A different question is presented where the de- terminations of fact are fundamental or ' jurisdictional,'1 in the sense that their existence is a condition precedent to the operation of the statutory scheme. These funda-

" The term 'jurisdictional,'

although frequently used, suggests analogies which are not complete when the reference is to adminis- trative officials or bodies. See Interstate Commerce Commission v.

In relation to admin- Humboldt Steamship Co., 224 U. S. 474, 484. istrative agencies, the question in a given case is whether it falls ivithin the scope of the authority validly conferred.

22

Opinion of the Court.

mental requirements are that the injury occur upon the navigable waters of the United States and that the rela- tion of master and servant exist. These conditions are indispensable to the application of the statute, not only because the Congress has so provided explicitly (§ 3), but also because the power of the Congress to enact the legislation turns upon the existence of these conditions.

In amending and revising the maritime law, 8 the Con- gress cannot reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. 9 Unless the injuries to which the Act relates occur upon the navigable waters of the United States, they fall out- side that jurisdiction. " Not only is navigability itself a question of fact, as waters that are navigable in fact are navigable in law, 21 but, where navigability is not in dispute, the locality of the injury, that is, whether it has occurred upon the navigable waters of the United States, determines the existence of the congressional power to create the liability prescribed by the statute.2 Again, it

' This power is distinct from the authority to. regulate interstate or foreign commerce and is not limited to cases arising in that com- merce. The Genesee Chief, 12 How. 443, 452; The Commerce, 1 Black 574, 578, 579; The Belfast, 7 Wall. 624, 640, 641; Ex parte Boyer, 109 U. S. 629, 632; In 'e Garnett, 141 U. S. 1, 15, 17; London Guarantee & Accident Co. v. Industrial Comm., 279 U. S. 109, 124.

"The Belfast, supra; Panama R. Co. v. Johnson, supra; The Genesee Chief, supra, at p. 459; 1 Benedict's Admiralty, 5th ed., § 32, p. 47.

20 Cleveland Terminal & V. R. Co. v. Cleveland Steamship Co., 208 U. S. 316; Atlantic Transport Co. v. Imbrovek, supra, at pp. 59, 60; Industrial Commission v. Nordenholt Corp., 259 U. S. 263, 273; Washington v. Dawson, supra, at pp. 227, 235; Nogueira v. N. Y.,

N. H. & H. R. Co., 281 U. S. 128, 133, 138.

The Daniel Ball, 10 Wall. 557, 563; United States v. Holt State Bank, 270 U. S. 49, 56; United States v. Utah, 283 U. S. 64, 76, 77; Arizona v. California, 283 U. S. 423, 452.

221ndustrial Commission v. Nordenholt Co., supra; Washington v.

Dawson, supra; Nogueira v. N. Y., N. H. & H. R. Co., supra; 1 Benedict's Admiralty, 5th ed., § 29, pp. 41, 42, note.

Opinion of the Court.

cannot be maintained that the Congress has any general authority to amend the maritime law so as to establish liability without fault in maritime cases regardless of 'particular circumstances or relations. It is unnecessary to consider what circumstances or relations might per- mit the imposition of such a liability by amendment of the maritime law, but it is manifest that some suitable selection would be required.

In the present instance, the Congress has imposed liability without fault only where the relation of master and servant exists in maritime em- ployment and, while we hold that the Congress could do this, the fact of that relation is the pivot of the statute and, in the absence of any other justification, underlies the constitutionality of this enactment. If the person in- jured was not an employee of the person sought to be held, or if the injury did not occur upon the navigable waters of the United States, there is no ground for an assertion that the person against whom the proceeding. was directed could constitutionally be subjected, in the absence of fault upon his part, to the liability which the statute creates.

In relation to these basic facts, the question is not the ordinary one as to the propriety of provision for admin- istrative determinations. Nor have we simply the ques- tion of due process in relation to notice and hearing.

It is rather a question of the appropriate maintenance of the Federal judicial power in requiring the observance of constitutional restrictions. It is the question whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an ad- ministrative agency-in this instance a single deputy com- missioner 2'-3for the final determination of the existence of the facts upon which the enforcement of the constitu- tional rights of the citizen depend. The recognition of

See Report of United States Employees' Compensation Cominis- sion for fiscal year ending June 30, 1931, pp. 108, 109.

22

Opinion of the Court.

the utility and convenience of administrative agencies for the investigation and finding of facts within their proper province, and the support of their authorized action, does not require the conclusion that there is no limitation of their use, and that the Congress could completely oust the courts of all determinations of fact by vesting the authority to make them with finality in its own instru- mentalities or in the Executive Department. That would be to sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureau- cratic character alien to our system, wherever funda- mental rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law.

In this aspect of the question, the irrelevancy of State statutes and citations from State courts as to the distri- bution of State powers is apparent. A State may dis- tribute its powers as it sees fit, provided only that it acts consistently with the essential demands of due proc- ess and does not transgress those restrictions of the Fed- eral Constitution which are applicable to State author- ity. 4 In relation to the Federal government, we have already noted the inappositeness to the present inquiry of decisions with respect to determinations of fact, upon evidence and within the authority conferred, made by ad- ministrative agencies which have been created to aid in the performance of governmental functions and where the mode of determination is within the control of the Congress; as, e. g. in the proceedings of the Land Office pursuant to provisions for the disposition of public lands, of the authorities of the Post Office in relation to postal privileges, of the Bureau of Internal Revenue with re- spect to taxes, and of the Labor Department as to the

' Prentis v. Atlantic Coast Line, 211 U. S. 210, 225; Chicago, Rock Island & Pacific Ry. Co. v. Cole, 251 U. S. 54, 56; Missouri ex rel.

Hurwitz v. North, 271 U. S. 40, 42.

Opiinoii of lie Court.

admission and deportation of aliens. Ex parte Bakelite Corp., supra.- Similar considerations apply to decisions with respect to determinations of fact by boards and com- missions created by the Congress to assist it in its legis- lative process in governing various transactions subject to its authority, as 'for example, the rates and practices of interstate carriers, the legislature thus being able to apply its standards to a host of instances which it is im- practicable to consider and legislate upon directly and the action being none the less legislative in character because taken through a subordinate body."- And where adminis- trative bodies have been appropriately created to meet the exigencies of certain classes of cases and their action is of a judicial character, the question of the conclusiveness of their administrative findings of fact generally arises where the facts are clearly not jurisdictional - 2 and the scope of review as to such facts has been determined by the applicable legislation. None of the decisions of this sort touch the question which is presented where the facts involved are jurisdictional 8 or where the question con- cerns the proper exercise of the judicial power of the United States in enforcing constitutional limitations.

Even where the subject lies within the general authority of the Congress, the propriety of a challenge by judicial proceedings of the determinations of fact deemed to be jurisdictional, as underlying the authority of executive officers, has been recognized. When proceedings are taken against a person under the military law, and enlistment is denied, the issue has been tried and determined de novo upon habeas corpus. In re Grimley, 137 U. S. 147, 154,

22 Supra, niote 13.

2"See Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry.

Co., 284 U. S. 370.

Freund, "Administrative Powers Over Persons and Property," § 154, p. 293.

" Id., § 153, pp. 291-293.

22

Opinion of the Court.

155. See, also, In re Morrissey, 137 U. S. 157, 158; Givens

v. Zerbst, 255 U. S. 11, 20. While, in the administration

of the public land system, questions of fact are for the consideration and judgment of the Land Department and its decision of such questions is conclusive, it is equally true that if lands "never were public property, or had previously been disposed of, or if Congress had made io provision for their sale, or had reserved them,. the depart- ment would have no jurisdiction to transfer them." This Court has held that "matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law.

In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act." Smelt- ing Co. v. Kemp, 104 U. S. 636, 641.

In-such a case, the invalidity of the patent may be shown in a collateral pro- ceeding. Polk v. Wendell, 9 Cranch 87; Patterson v. Winn, 11 Wheat. 380; Minter v. Crommelin, 18 How. 87; Mor- ton v. Nebraska, 21 Wall. 660, 675; Noble v. Union River Logging Co., 147 U. S. 165, 174. The question whether a publication is a 'book' or a 'periodical' has been re- viewed upon the evidence received in a suit brought to restrain the Postmaster General from acting beyond his authority in excluding the publication from carriage as second class mail matter. Smith v. Hitchcock, 34 App.

Where the doctrine of personal liability of an officer for acting without jurisdiction is applied, courts have received evidence to show the jurisdictional defect. Thus in Miller v. Horton, 152 Mass. 540; 126 N. E. 100, an action was brought against the members of a town board of health who had killed a horse in obedience to an order of Ihe commissioners on contagious diseases among domestic animals, acting under the alleged authority of the state legislature. The order recited that the animal had been examined and was adjudged to have the glanders. The judge before whom the case was tried "found the horse had not the glanders" but declined to rule against the defend- ants. The Supreme Judicial Court sustained exceptions, holding that

60

Opinion of the Court.

In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function. The case of confiscation is illustra- tive, the ultimate conclusion almost invariably depending upon the decisions of questions of fact. This court has held the owner to. be entitled to "a fair opportunity fbr submitting that issue to a jddicial tribunal for determina- tion upon its own independent judgment as to both law and facts." Ohio Valley Water Co. v. Ben Avon Bor- ough, supra. See, also, Prendergast v. New York Tele- phone Co., 262 U. S. 43, 50; Tagg Bros. & Moorhead v.

United States, supra; Phillips v. Commissioner, 283 U. S.

589, 600. Jurisdiction in the Executive to order deporta- tion exists" only if the person arrested is an alien, and while, if there were jurisdiction, the findings of fact of the Executive Department would be conclusive, the claim of citizenship "is a denial of an essential jurisdictional fact" both in the statutory and the constitutional sense, and a writ of habeas corpus will issue "to determine the status." Persons claiming to be citizens of the United States "are entitled to a judicial determination of their claims," said this Court in Ng Fung Ho v. White, supra (259 U. S., at p. 285), and in that case the cause was re- manded to the Federal District Court "for trial in that court of the question of citizenship."

In the present instance, the argument that the' Congress has constituted the deputy commissioner' a fact-finding tribur l is unavailing, as the contention makes the un- tenable assumpti.n that the constitutional courts may be

"The fact as to the horse having the disease was open to investiga- tion in the kresent action, and on the finding that the horse did not have it, the plaintiff was entitled to a ruling that the defendants had Id., p. 548. See, also, Pearson failed to make out their justification."

v. Zehr, 138 Ill. 48, 51, 52; 29 N. E. 854.

22

Opinion of the Court.

deprived in all cases of the determination of facts upon evidence even though a constitutional right may be in- volved. Reference is also made to the power of the Con- gress to change the procedure in courts of admiralty, a power to which we have alluded in dealing with the func- tion of the deputy commissioner in passing upon the com- pensation claims of employees. But when fundamental rights are in question, this Court has repeatedly empha- sized "the difference in security of judicial over adminis- trative action." Ng Fung Ho v. White, supra. Even where issues of fact are tried by juries in the Federal courts, such trials are under the constant superintendence of the trial judge.

In a trial by jury in a Federal court the judge is "not a mere moderator" but "is the gover- nor of the trial" for the purpose of assuring its proper conduct as well as of determining questions of law. Her- ron v. Southern Pacific Co., 283 U. S. 91, 95.

In the Fed- eral courts, trial by jury "is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to ad- vise them on the facts, and (except on acquittal of a crim- inal charge) to set aside their verdict if in his opinion it is against the law or the evidence." Capital Traction Co. v.

Hof, 174 U. S. 1, 13, 14. Where testimony in an equity cause is not taken before the court, the proceeding is still constantly subject to the court's control. And while the practice of obtaining the assistance of masters in chancery and commissioners in admiralty may be regarded, as we have pointed out, as furnishing a certain analogy in rela- tion to the normal authority of the deputy commissioner in making what is virtually an assessment of damages, the proceedings of such masters and commissioners are always subject to the direction of the court and their reports are essentially advisory, a distinction of controlling impor- tance when questions of a fundamental character are in issue.

Opinion of the Court.

When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitution- ality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."0 We are of the opinion that such a construction is per- missible and should be adopted in the instant case. The Congress has not expressly provided that the determina- tions by the deputy commissioner of the fundamental or, jurisdictiorkal facts as to the locality of the injury and the existence of the relation of master and servant shall be final. The finality of such determinations of the dep- uty "commisioner is predicated primarily upon the pro- vision, § 19 (a), that he "shall have full power and authority to hear and determine all questions in respect of such claim." But "such claim" is the claim for com- pensation under the Act and by its explicit provisions is that of an "employee," as defined in the Act, against his "employer." The fact of employment is an essen- tial condition precedent to the right to make the claim.

The other provision upon which the argument rests is that which authorizes the Federal court to set aside a compensation order if it is "not in accordance with law.". § 21 (b). In the absence of any provision as to the finality of the determination by the deputy commissioner of the jurisdictional fact of employment, the statute is open to the construction that the court in determining whether a compensation order is in accordance with law may determine the fact of employment which underlies the operation of the statute. And, to remove the ques- tion as to validity, we think that the statute should be so construed.,' Further, the Act expressly requires that

Panama R. Co. v. Johnson, supra, at p. 390; Missouri Pacific

R. Co. v. Boone, 270 U. S. 466, 471, 472; Richmond Screw Anchor

Co. v. United States, 275 U. S. 331, 346; Blodgett v. Holden, 275

U. S. J42, 148; Lucas v. Alexander, 279 U. S. 673, 577.

22

Opinion of the Court.

if any of its provisions is found to be unconstitutional, "or the applicability thcreof to any person or circum- stances " is held invalid, the validity of the remainder of the Act and " the applicability of its provisions to other persons and circumstances" shall not be affected. § 56.

We think that this requirement clearly evidences the intention of the Congress not only that an exepress provi- sion found to be unconstitutional should be disregarded without disturbing the remainder of the statute, but also that any implication from the terms of the Act which would render them invalid should not be indulged. This provision also gives assurance that there is no violation of the purpose of the Congress in sustaining the deter- minations of fact of the deputy commissioner where he acts within his authority in passing upon compensation claims while denying finality to his conclusions as to the jurisdictional facts upon which the valid application of the statute depends.

Assuming that the Federal court may determine for itself the existence of these fundamental or jurisdictional facts, we come to the question,-Upon what record is the determination to be made? There is no provision of the statute which seeks to confine the court in such a case to the record before the deputy commissioner or to the evidence which he has taken. The remedy which the statute makes available is not by an appeal or by a writ of certiorari for a review of his determination upon the record before him. The remedy is "through injunction proceedings, mandatory or otherwise." § 21 (b). The question in the instant case is not whether the deputy. commissioner has acted improperly or arbitrarily as shown by the record of his proceedings in the course of adminis- tration in cases contemplated by the statute, but whether he has acted in a case to which the statute is inapplicable.

By providing for injunction proceedings, the Congress evidently contemplated a suit as in equity, and in such

Opinion of the Court.

a suit the complainant would have full opportunity to plead and prove either that the injury did not occur upon the navigable waters of the United States or that the rela- tion of master and servant did not exist, and hence that the case lay outside the purview of the statute. As the question is one of the constitutional authority of the deputy commissioner as- an administrative agency, the court is under no obligation to give weight to his proceed- ings pending the determination of that question. If the court finds that the facts existed which gave the deputy commissioner jurisdiction to pass upon the claim for com- pensation, the injunction will be denied in so far as these fundamental questions are concerned; if, on the contrary, the court is satisfied that the deputy commissioner had no jurisdiction of. the proceedings before him, that deter- mination will deprive them of their effectiveness for any purpose. We think that the essential independence of the exercise of the judicial power of the United States in the enforcement of constitutional rights requires that the Federal court should determine such an issue upon its own record and the facts elicited before it.

The argument is made that there are other facts besides the locality of the injury and the fact of employment which condition the action of the deputy commissioner.

That contention in any aspect could not avail to change the result in the instant case. But we think that there is a clear distinction between cases where the locality of the injury takes the case out of the admiralty and mari- time jurisdiction, or where the fact of employment being absent there is lacking under this statute any basis for the imposition of liability without fault, and those cases which fall within the admiralty and maritime jurisdiction and where the relation of master and servant in maritime employment exists.

It. is in the latter field that the pro- visions for compensation apply and that, for the reasons stated in the earlier part of this opinion, the determina-

22

BRANDEIS, J., dissenting.

tion of the facts relating to the circumstances of the in- juries received, as well as their nature and consequences, may appropriately be subjected to the scheme of admin- istration for which the Act provides.

It cannot be regarded as an impairment of the intended efficiency of afn administrative agency that it is confined to its proper sphere, but it may be observed that the instances which permit of a challenge to the application of the statute, upon the grounds wehave stated, appear to be few. Out of the many thousands of cases which have been brought before the deputy commissioners throughout the country, a review by the courts has been sought in only a small number,"1 and an inconsiderable proportion of these appear to have involved the question whether the injury occurred within the martime jurisdic- tion or whether the relation of employment existed.

We are of the opinion that the District Court did not err in permitting a trial de novo on the issue of employ- ment. Upon that issue the witnesses who had testified before the deputy commissioner :and other witnesses were heard by the District Court. The writ of certiorari was not granted to review the particular facts but to pass upon the question of principle. With respect to the facts, the two courts below are in accord, and we find no reason to disturb their decision.

Decree affirmed.

MR. JUSTICE BRANDEIS, dissenting.

Knudsen filed a claim against Benson under § 19 (a) of the Longshoremen's and Harbor Workers' Compen- sation Act, March 4, 1927, c. 509, 44 Stat. 1424. Benson's answer denied, among other things, that the relation of employer and employee existed between him and the introduced before the deputy claimant. The evidence

3' Supra, note 10.

137818°-32----5

BRANDEIS, J., dissenting.

commissioner, which occupies 78 pages of the printed rec- ord, was directed largely to that issue and was conflicting.

The deputy commissioner found that the claimant was in Benson's employ at the time of the injury, and filed an order for compensation under § 21 (a). Benson brought this proceeding under § 21 (b) to set aside the order. The district judge transferred- the suit to the admiralty side of the court and held a trial de novo, refusing to consider upon any aspect of the case the record before the deputy commissioner. On the evidence introduced in court, he found that the relation of employer and employee did not exist, and entered a decree setting aside the compensation order. 33 F. (2d) 137; 38 F. (2d) 306. The Circuit Court of Appeals affirmed the decree. 45 F. (2d) 66.

This Court granted certiorari. 283 U. S. 814.

In my opinion, the decree should be reversed, because Congress did not authorize a trial de novo.

The primary question for consideration is not whether Congress provided, or validly could provide, that deter- minations of fact by the deputy oommissioner should be conclusive upon the district court. The question is: Upon what record shall the district court's review of the order of the deputy commissioner be based? The courts below held that the respondent was entitled to a trial de novo; that all the evidence introduced before the deputy commissioner should go for naught; and that respondent should have the privilege of presenting new, and even entirely different, evidence in the district court. Unless that holding was correct the judgment below obviously cannot be affirmed.

First. The initial question is one of construction of the Longshoremen's Act. The Act does not in terms declare whether there may be a trial de novo either as to the issue whether the relation of employer and employee existed at the time of the injury, or as to any other issue, tried or triable, before the deputy commissioner.

It pro- vides, by § 19 (a), "that the deputy commissioner shall

22

BRANDEIS, J., dissenting.

have full power and authority to hear and determine all questions in respect of" a claim; by § 21 (a) that the compensation order made by the deputy commissioner "shall become effective" when filed in his office, and "unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this section, shall become final..."; and by § 21 (b) that "If not in accordance with law, a com- pensation order may be. suspended or set aside, in whole or in- stituted in the Federal district court. . ....

injunction proceedings .

in part, through .

.

The phrase in § 21 (b) providing that the order may be set aside." if not in accordance with law" was adopted from the statutory provision, enacted by the same Con- gress, for review by the Circuit Courts of Appeals of decisions of the Board of Tax Appeals.1 This Court has settled that the phrase as used in the tax statute means a review upon the record made before the Board. Phil- lips v. Commissioner, 283 U. S. 589, 600. The Compen- sation Commission has consistently construed the Long- shoremen's Act as providing for finality of the deputy commissioners' findings on all questions of fact;2 and care

'Revenue Act of 1926, 44 Stat. 110: "Sec. 1003. (a) The Circuit Courts of Appeals and the Court of Appeals of the District of Colum- bia shall have exclusive jurisdiction to review the decisions of the Board....

"(b) Upon such review, such courts shall have power to affirm or, if the dccision 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 a rehearing, as justice may require."

'This opinion was expressed in regulations promulgated by the Commission, under authority conferred by § 39 (a), in the form of instructions to deputy commissioners, dated September 28, 1927; and it was repeated in the Commission's report at the close of the first year of its administration of the Act. Report of United States Employees' Compensation Commission, for fiscal year ending June 30, 1928, p. 33. See also id., June 30, 1929, p. 77; id., June 30, 1930, pp. 63-64; id., June 30, 1931, p. 71. The instructions to deputy

68

BRANDEIS, J., dissenting.

has been taken to provide for formal hearings appropri- ate to that intention. Compare Brown v. United States, 113 U. S. 568, 571; Mason v. Routzahn, 275 U. S.-175,

178. The lower federal courts, except in the case at bar,

have uniformly construed the Act as denying a, trial de novo of any issue determined by the deputy commis- sioner; have held that, in respect to those issues, the re- view afforded must be upon the record made before the deputy commissioner; and that the deputy commission- er's findings of fact must be accepted as conclusive if supported by evidence, unless there was some' irregu- larity in the proceeding before him.' Nearly all .the state

commissioners, elaborated December 10, 1927, and May 15, 1928, re- quired that the record of proceedings and findings of fact be prepared, and the proceedings be conducted, in consonance with this view of the law.

' The question of judicial review under the Act has been passed upon by the First, Second, Third, Fourth and Ninth Circuit Courts of Appeals, as well as the Fifth; by a district court in the Sixth Circuit; and by the Court of Appeals of the District of Columbia, under the Act of May 17, 1928, c. 612, 45 Stat. 600. Pocahontas Fuel Co. v. Monahan, 41 F. (2d) 48, 49 (C. C. A. 1st), aff'g 34 F. (2d) 549, 551, [1929] A. M. C. 1598 (D. Me.); Joyce v. Deputy Com- missioner, 33 F. (2d) 218, 219 (D. Me.); Jarka Corp. v. Monahan,

48 F. (2d) 283, 284 (D. Mass.); Booth v. Monahan, 56 F. .(2d) 168

(D. Me.); Wilson & Co., Inc. v. Locke, 50 F. (2d) 81, 82 (C. C. A.

2d); Travelers Insurance Co. v..Locke, 56 F. (2d) 443 (S. D, N. Y.); Calabrese v. Locke, 56 F. (2d) 458 (S. D. N. Y.); W. J. McCahan Sugar Refining & Molasses Co. v. Norton, 43 F. (2d) 505, 506 (C. C.

A. 3d), aff'g 34 F. (2d) 499, [1929] A. M. C. 1269 (E. D. Pa.);

Independent Pier Co. v. Norton (C. C. A. 3d), 54 F. (2d) 734; Baltimore & Carolina S. S. Co. v. Norton, 40 F. (2d) 271, 272 (E.

D. Pa.); Merchants' & Miners' Transp. Co. v. Norton, 32 F. (2d)

513, 515 (E. D. Pa.); Jarka Corp. v. Norton, 56 F. (2d) 287 (E. D.

Pa.); Frank Marra Co. v. Norton, 56 F. (2d) 246 (E. D. Pa.); Wheeling Corrugating Co. v. McManigal, 41 F. (2d) 593, 594, 595 (C. C. A. 4th); Obrecht-Lynch Corp. v. Clark, 30 F. (2d) 144, 146 (D. Md.); Keyway Stevedoring Co. v. Clark, 43 F. (2d) 983 (D.

69 22

BRANDEIS, J., dissenting.

courts have construed the state workmen's compensa- tion laws, as limiting the judicial review to matters of law.' Provisions in other federal statutes, similar to

Md.); Kranski v. Atlantic Coast Shipping Co., 56 F. (2d) 166 (D.

Md.) ;'Chesapeake Ship Ceiling Co. V. Clark (D. Md.), decided May 22, 1930 [oral opinion]; Goble v. Clark, 56 F. (2d) .170 (D. Md.); Michigan Transit Corp* v. Brown, 56 F. (2d) 200 (W. D. Mich.); Northwestern Stevedoring Co. v. Marshall, 41 F. (2d) 28, 29 (C. C.

A. 9th); Gunther v. Compensation Commission, 41f F. (2d) 151, 153

(C. C. A. 9th); Grays Harbor Stevedore Co. v. Marshall, 36 F. (2d) 814, 815 (W. D. Wash.); Zurich General Accident & Liability Ins. Co. v. Marshall, 42 F. (2d) 1010, 1011 .W. D. Wash.); Todd Dry Docks, Inc. v. Marshall, 49 F. (2d) 621, 629 (W. D.

Wash.); Grays Harbor Stevedore Co. v. Marshall, 36 F. (2d) 814 (W. D. Wash.); Rothschild & Co. v. Marshall, 56 F. (2d) 415 (W. D.

Wash.), reversed on other grounds, 44 F. (2d) 546 (C. C. A. 9th); Lea Mathew Shipping Corp. v. Marshall, 56 F. (2d) 860 (W. D.

Wash.); Griffiths & Sprague Stevedoring Co. v. Marshall, 56 F. (2d) 665- (W. D. Wash.); W. R. Grace & Co. v. Marshall, 56 F. (2d) 441 (W. D. Wash.); Nelson v. Marshall, 56 F. (2d) 654 (W. D. Wash.); Grant v. Marshall, 56 F. (2d) 654 (W. D. Wash.); Zurich General Accident & Liability Co. v. Marshall, 56 F. (2d) 652 (W. D. Wash.); Ocean Accident & Guarantee Corp. v. Solberg, 56 F. (2d) 607 (W. D.

Wash.); compare Lake Washington Shipyards v. Brueggeman, 56 F.

(2d) 665 (W. D. Wash.); New Amsterdam Casualty Co. v. Hoage,

46 F. (2d) 837 (Ct. of App. D. C.); Hoage v. Murch Bros. Const.

Co., 50 F. (2d) 983, 984 (Ct. of App. D. C.). See also the following decisions by district courts in the Fifth Circuit: Showers v. Crowell,

46 F. (2d) 361 (W. D. La.);. Howard v. Monahan, 31 F. (2d) 480,

481, 33 F. (2d) 220, 221 (S. D. Tex.). Compare T. J. Moss Tie Co.

v. Tanner, 44 F. (2d) 928 (C. C. A 5th); Houston Ship Channel

Stevedoring Co. v. Sheppeard, 57 F. (2d) 259, [1931] A. M. C. 1605 (S. D. Tex.).

'The Court has been7 referred to no case arising under the state workmen's compensation laws recognizing a right to trial de novo in court. Numerous decisions declare administrative findings of fact to be conclusive. The following decisions all dealt with controversies concerning the existence of a relation of employment. Hillen v. Acci- dent Commission, 199 Cal. 577,580; 250 Pac. 570; York Junction Trans- fer & Storage Co. v. Accident Commissioners, 202 Cal. 517, 521; 261

70

BRANDEIS, J., dissenting.

those here in question, creating various administrative tribunals, have likewise been treated as not conferring the right to a judicial trial de novo.'

Pae. 704; Index Mines Corporation v. Industrial Commission, 82 Colo.

272, 275; 259 Pac. 1036; Oceon Accident & Guarantee Corp. v. Wil- son, 36 Ga. App. 784; 138 S. E. 246; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 721; 218 Pac. 356; Cinofsky v. Industrial Com- mission, 290 Ill. 521, 525; 125 N. E. 286; Franklin Coal Co. v. In- dlustrial Commission, 296 Ill. 329, 334; 129 N. E. 811; A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 425; 141 N. E. 227; Murphy

v. Shipley, 200 Iowa 857, 859; 205 N. W. 497; Churchill's Case., 265

Mass. 117, 119; 164 N. E. 68; Hill's Case, 268 Mass. 491, 493; 167

N. E. 914; Matter of Dale v. Saunders Brothers, 218 N. Y. 59, 63;

112 N. E. 571; Federal Mining & Smelting Co. v. Thomas, 99 Okla.

24, 26; 225 Pac. 967; Oklahoma Pipe Line Co. v. Lindsey, 113 Okla.

296, 298; 241 Pac. 1092; Belmorte v. Connor, 263 Pa. 470, 472; 106 AtI. 787.

(a) Interstate Commerce Commission: Act of June 18, 1910, c. 309, § 1, 36 Stat. 539; see Interstate Commerce Comm. v. Louisville & Nashville R. Co., 227 U. S. 88, 92; United States v. Louisville & Nashville R. Co., 235 U. S. 314, 320, 321; Louisville & Nashville

R. Co. v. United States, 245 U. S. 463, 466, and other cases collected

in I. L. Sharfman, "The Interstate Commerce Commission II," pp.

384-393, 417 et seq.; Act of June 18, 1910, c. 309, § 13, 36 Stat. 539, 555; Act of March 1, 1913, c. 92, 37 Stat. 701, 703. See Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 444n.

(b) Federal Trade Commission: Act of September 26, 1914, c. 311, § 5, 38 Stat. 717, 719-20; see Federal Trade Comm. v. Curtis Pub- lishing Co., 260 U. S. 568, 579, 580; Federal Trade Comm. v. Pacific States Paper Trade Assn., 273 U. S. 52, 63; Arkansas Wholesale Gro- cer4s' Assn. v. Federal Trade Comm., 18 F. (2d) 866, 870, 871; Gregory Hankin, "Conclusiveness of the Federal Trade Commission's Find- ings as to Facts," 23 Mich. L. Rev. 233, 262-67; Act of October 15, 1914, c. 323, § 11, 38 Stat. 730, 735 (applicable also in appropriate cases .to Interstate Commerce Commission and Federal Reserve Board); see Federal Trade Comm. v. Curtis Publishing Co., supra; International Shoe Co. v. Federal Trade Comm., 280 U. S. 291, 297.

(c) Federal Power Commission: Act of June 10, 1920, c. 285, § 20, 41 Stat. 1063, 1074.

(d) United States Shipping Board: Act of September 7, 1916, c.

451; §§ 29, 31, 39 Stat. 728, 737, 738; see Isthmian Steamship Co. v.

22

BRANDEIS, J., dissenting.

The safeguards with which Congress has surrounded the proceedings before the deputy commissioner would be without meaning if those proceedings were to serve merely as an inquiry preliminary to a contest in the courts.' Specific provisions of the Longshoremen's Act make clear that it was the aim of Congress to expedite the relief afforded. With a view to obviating the delays incident to judicial proceedings the Act substitutes an administrative tribunal for the court; and, besides pro- viding for notice and opportunity to be heard, endows the proceedings before the deputy commissioner with the customary incidents of a, judicial hearing. It prescribes that the parties in interest may be represented by coun- sel, § 19 (d); that the attendance of witnesses and the

United States (S. D. N. Y.), 53 F. (2d) 251; compare U. S. Naviga- tion Co. v. Cunard S. S. Co., 284 U. S. 474.

(e) Secretary of Agriculture: Act of August 15, 1921, c. 64, §§ 315, 316, 42 Stat. 159, 168; see Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 443, 444; Stafford v. Wallace, 258 U. S. 495, 512; Act of August 15, 1921, c. 64, § 204,-42 Stat. 159, 162; Act of June 10, 1930, c. 430, §§ 10, 11, 46 Stat. 531, 535.

(f) Board of Tax Appeals: Act of February 26,. 1926, c. 27, § 1003 (a), 44 Stat. 9, 110; see Phillips v. Conmissioner, 283 U. S. 589, 600.

(g) Grain Futures Commission: Act of September 21, 1922, c. 369, § 6 (b), 42 Stat. 998, 1002.

(h) District of Columbia Rent Commission: Act of October 22, 1919, c. 80, Title II, § 108, 41 Stat. 297, 301; see Block v. Hirsh, 256 U. S. 135, 158; Kiligore V. Zinkhan, 274 Fed. 140, 142.

InI instances in which Congress intended to permit the introduction of additional evidence in the district court it has so provided in ex- press terms. See, e. g., Act of February 18, 1922, c. 57, § 2, 42 Stat.

388, 389. Compare the provision for review of reparation orders of the Interstate Commerce Commission, Act of June 18, 1910, c. 309, 313, 36 Stat. 539, 554, and of orders for the payment .of money by the Shipping Board. Act of September 7, 1916, c. 451, § 30, 39 Stat.

728, 737.

'Compare Freund, "Administrative Powers Over Persons and Prop- erty," p. 279.

BRANDEIS, J., dissenting.

production of documents may be compelled, § 27 (a); that the hearings shall be public, and that they shall be stenographically reported, § 23 (b); that there shall be made " a record of the hearings and other proceedings before the deputy commissioners," § 23 (b); "that the deputy commissioner shall have full power and authority to hear and determine all questions in respect of" a claim, § 19 (a); and that his order shall become final after 30 days, unless a proceeding is filed under § 21 (b) charging that it is "not in accordance with law." Procedure of this character, instead of expediting relief, would entail useless expense and delay if the proceedings before the deputy commissioner were to be repeated in court, and the case tried from the beginning, at the option of either party. The conclusion that Congress did not so intend is confirmed by reference to the legislative history of the Act.7 Compare Caminetti v. United States, 242 U. S. 470, 490.

'Two bills providing workmen's compensation for longshoremen and harbor workers were before the Congress at the same time.

H. R. 9498, which was first reported favorably to the House, declared

in terms, §§ 22, 24, that "the decision of the deputy commissioner shall be final as to all questions of fact and except as provided in sec- tion 24 as to all questions of law." This bill was abandoned by the House in favor of S. 3170, in order that some legislation on the sub- ject, under what was regarded as an emergency, might be passed at that session. H. D., 69th Cong., 1st Sess., ser. 16, pt. 2, pp. 139-141.

Although the differences between the two bills were minutely exam- ined in the hearings before the House Committee on the Judiciary, no reference was made to any change in the provisions for review of compensation orders; but on the contrary it was affirmatively stated that the Senate bill likewise enacted administrative finality upon ques- Id., pt. 2, p. 200. The same statement was made in tions of fact.

Id., pt. 1, pp. 53, 66. The bill was reported to the Senate hearings. to the the House as having been amended to "conform substantially" bill theretofore reported. H. Rep., No. 1767, 69th Cong., 1st Sess.

Both in this report and in the brief 'debates in both houses, the bill was described as designed to prevent the delay and injustice incident

22

BRANDEIS, J., dissenting.

Second. Nothing in the statute warrants the construc- tion that the right to a trial de novo which' Congyess has concededly denied as to most i~sues of fact determined by the deputy commissioner has been granted in respect to the issue of the existence of the employer-employee rela- tion. The language which is held sufficient to foreclose the right to such a trial on some issues forecloses it as to all.

Whether the peculiar relation which the fact of employ- ment is asserted to bear to the scheme of the statute and to the constitutional authority under which it was passed, might conceivably have induced Congress to provide a special method of review upon that question, it is not necessary to inquire. For Congress expressly declared its intention to put, for purposes of review, all the issues of fact on the same basis, by conferring upon the deputy commissioner "full power to hear and determine all ques- tions in respect of such claim," subject only to the power of the court to set aside his order "if not in accordance with law."

The suggestion that" such claim" may be construed to mean only a claim within the purview of the Act seems to me without substance. Logically applied, the sugges- tion would leave the deputy commissioner powerless to hear or determine any issue of asserted non-liability under the Act. For non-existence of the employer-employee relation is only one of many grounds of non-liability.

Thus, there is no liability if the injury was occasioned solely by the intoxication of the employee; or if the in- jury was due to the wilful intention of the employee to

to litigation, and as affording to maritime workers the same remedies as those provided in state workmen's compensation laws. See 67 Cong. Rec. 10614; 68 Cong. Rec. 5410-5414, 5908. 'The state work- men's compensation statutes have, almost universally, been construed to provide for final administrative determination of questions of fact, including the fact of the existence of an employment. See note 4, supra.

74

BRANDEIS, J., dissenting.

iIjure or kill himself or another; or if it did not arise "out of or in the course of employment "; or if the em- ployer was not engaged in maritime employment in whole or in part; or if the injured person was the employee of a subcontractor who has secured payment of compensa- tion; or if the proceeding is brought against the wrong person as employer; or if the disability or death is that of a master or a member of the crew of any vessel; or if it ,is that of a person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or if it is that of an officer or employee of the United States or any agency thereof; or if it is that of an officer or employee of any State, or foreign government, or any political subdivision thereof; or if recovery for the dis- ability or death through workmen's compensation pro- ceedings may be validly provided by state law. And ob- viously there is no liability if there was in fact neither disability nor death. It is not reasonable to suppose that Congress intended to set up a fact-finding tribunal of first instance, shorn of power to find a portion of the facts required for any decision of the case; or that in enacting legislation designed to withdraw from litigation the great bulk of maritime accidents, it contemplated a procedure whereby the same facts must be twice litigated before a longshoreman could be assured the benefits of compensation.

The circumstance that Congress provided, in § 21 (b), for review of orders of the deputy commissioner by in- junction proceedings is urged as indicative of an inten- tion that in such proceedings the complainant should have full opportunity to plead and prove any facts showing that the case lay outside the purview of the statute. But by this reasoning, again, many other questions besides those referred to by the Court would be open to retrial upon new, and different, evidence. The simple answer is that on bills in equity to set aside orders of a federal

22

BRANDEIS, J., dissenting.

administrative board there is no trial de novo of issues of fact determined by that tribunal. As stated in Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 443, concerning orders of the Secretary of Agriculture under

"A proceeding under § 316 of the Packers and Stock- yards Act is a judicial review, not a trial de novo. The validity of an order of the Secretary, like that of an order of the Interstate Commerce Commission, must be deter- mined upon the record of the proceedings before him- save as there may be an exception of issues presenting claims of constitutional right, a matter which need not be considered or decided now." 8

In the review of the quasi-judicial decisions of these federal administrative tribunals the bill in equity serves the purpose which at common law, and under the prac- tice of many of the States, is performed by writs of cer- It presents to the reviewing court the record of tiorari.' the proceedings before the administrative tribunal in order that determination may be made, among other things, whether the authority conferred has been prop- erly exercised.'" Neither upon bill in equity in the fed- ,'Congress has incorporated by reference the provisions for review of orders of the Interstate Commerce Commission in authorizing judicial review of certain orders of the Federal Power Commission and the Shipping Board, as it did in the Packers and Stockyards Act.

See note 5, supra.

'In People ex rel. New York & Queens Gas Co. v. .McCall, 219

N. Y. 84, 88, 90; 113 N. E. 795, it was held that the scope of the

review on certiorari of an order of the Public Service Commission was the same as that of the federal court on bill in equity of the orders of the Interstate Commerce Commission as declared in Interstate Com- merce Comm. v. Illinois Central R. Co., 215 U. S. 452, 470. Compare Vanfleet, "Collateral Attack on Judicial Proceedings," §§ 2, 3.

" Certiorari is the historic writ for determining whether the action of an inferior tribunal has been taken wi"iin its jurisdiction; and it has sometimes been held that the writ lies only to determine this

BRANDEIS, J., dissenting

eral courts nor writ of certiorari in the States is it the practice to permit fresh evidence to be offered in the re- viewing court. There is no foundation for the suggestion that Congress intended to provide otherwise in the Long- shoremen's Act.

Third. It is said that the provision for a trial de novo of the existence of the employer-employee relation should be read into the Act in order to avoid a serious constitu- It is true that where a statute is equally tional doubt. susceptible of two constructions, under one of which it is clearly valid and under the other of which it may be unconstitutional, the court will adopt the former con- struction. Presser v. Illinois, 116 U. S. 252, 269; Knights Templars' Indemnity Co. v. Jarman, 187 U. S. 197, 205; Carey v. South Dakota, 250 U. S. 118, 122; Missouri Pacific R. Co. v. Boone, 270 U. S. 466, 471, 472. But this Act is not equally susceptible to two constructions. The court may not, in order to avoid holding a statute uncon- stitutional, engraft upon it an exception or other provi- sion. Butts v. Merchants .& Miners Transportation Co., 230 U. S. 126, 133; The Employers' Liability Cases, 207

U. S. 463, 500-502; Trade-Mark Cases, 100 U. S. 82, 99;

United States v. Fox, 95 U. S. 670, 672, 673; United States

question. Compare Jackson, v. People, 9 Mich. 111. But, although there is considerable divergence in the practice of the various States as to the scope of the review, the proceeding, apart from extraordi- nary statutory provisions, ib universally upon the record and the evi- dence before the inferior tribunal, and not a trial de novo. Fore v.

Fore, 44 Ala. 478, 484; Los Angeles v. Young, 118 Cal. 295, 298; 50 Pac. 534; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 185, 186; 149 Pac. 35; Uphoff v. Industrial Board, 271 Ill. 312; 111

N. E. 128; Tiedt v. Carstensen,'61 Iowa 334, 336; 16 N. W. 214;

Lord v. County Commissioners,, 105 Maine 556, 561; 75 Atl. 126; Jackson ir. People, 9 Mich. 111, 119, 120; Wait v. Krewson, 59 N. J. L.

71, 75; 35 Atl. 742; Milwaukee Western Fuel Co. v. Industrial Com- mission, 159 Wis. 635, 641, 642; 150 N. W. 998. It was so at common law. See Freund, "Administrative Powers Over Persons and Prop- orty," pp. 267-269.

22

BRANDEIS, J., dissenting.

v. Reese, 92 U. S. 214, 221. Compare Illinois Central R.

Co. v. McKendree, 203 U. S. 514, 529; Celia Conmission Co. v. Bohlinger, 147 Fed. 419, 423, 424. Neither may it do so to avoid having to resolve a constitutional doubt.

To hold that Congress conferred the right to a trial de novo on the issue of the employer-employee relation seems to me a remaking of the statute and not a construction of it.

Fourth. Trial de novo of the issue of the existence of the employer-employee relation is not required by the due process clause. That clause ordinarily does not even re- quire that parties-shall be permitted to have a judicial tribunal pass upon the weight 6f the evidence introduced before the administrative body. See Dahlstrom Metallic Door Co. v. Industrial Board, 284 U. S. 594. The findings of fact of the deputy comnissioner, the Court now de- cides, are conclusive as to most issues, if supported by evidence. Yet as to the issue of employment the Court holds not only that such findings may not be declared final, but that it would create a serious constitutional doubt to construe the Act as committing to the deputy commissioner the simple- function of collecting the evi- dence upon which the court will ultimately decide the issue.

It is suggested that this exception is required as to issues of fact involving claims of constitutional right.

For reasons which I shall later discuss, I cannot believe that the issue of employment is one of constitutional right. But even assuming it to be so, the conclusion does not follow that the trial of the issue must therefore be upon a record made in the district court. That the func- tion of collecting evidence may be committed to an ad- ministrative tribunal is settled by a host of cases,"t and

"See

the statutes and cases cited in note 5, supra. Similar deci- sions have been repeatedly made, under the Fourteenth Amendment, in eases coming from the state courts. This Court has recently decided that a state workmen's compensation act may validly provide

78

BRANDEIS, J., dissenting.

supported by persuasive analogies, none of which justify a distinction between issues of constitutional right and any others. Resort to administrative remedies may be made a condition precedent to a judicial hearing. North- ern Pacific Ry. Co. v. Solum, 247 U. S. 477, 483, 484; First National Bank v. County .oVinmissioners, 264 U. S. 450, 454, 455; United States Navigation Co. v. Cunard S. S.

Co., 284 U. S. 474. This is so even though a party. is asserting deprivation of rights secured by the Federal Constitution. First National Bank v. County Com- missioners, supra. In federal equity suits, the taking of evidence on any issue in open court did not become common. until 1913,1" compare Los Angeles Brush Mfg.

for judicial review upon matters of law only. Dahlstromn Metallic Door Co. v. Industrial Board, 284 U. S. 594. See also New York Cen- In Missouri ex rel. tral R. R. Co. v. White, 243 U. S. 188, 207, 208.

Ilurwitz v. North, 271 U. S. 40, 42, it was held that a state board of health might be empowered, upon reasonable notice, specification of charges and opportunity to be heard, to revoke a physician's license, Eubject only to review in the courts upon certiorari. In Washington ex rel. Oregon Railroad & Navigation Co. v. Fairchild, 224 U. S. 510, 527, a statute was upheld which confined the court upon review of a public service commission's order to the evidence introduced before the commission. See also Wadley Southern Ry. Co. v. Georgia, 235

U. S. 651, 661; New York ex rel. New York & Queens Gas Co. v.

McCall, 245 U. S. 345, 348, 349; Napa Valley Electric Co. v. Railroad Commission, 251 U. S. 366, 370; Northern Pacific Ry. Co. v. Depart- ment of Public Works, 268 U. S. 39, 42.

In Long Island Water Sup- ply Co. v. Brooklyn, 166 U. S. 685, 695, it was held that the findings of fact by commissioners in assessing damages in condemnation proceed- ings might be made final, leaving open to the court only the question whether there was any error in the basis of appraisal, or otherwise.

See also Crane v. Hahlo, 258 U. S. 142, 147; Hardware Dealers Mu- tual' Fire Insurance Co. v. Glidden Co., 284 U. S. 151. Compare Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 451, 452.

12 See Griswold and Mitchell, "The Narrative Record in Federal Equity Appeals," 42 Harv. L. Rev. 483, 488, 491; Lane, " One Year Under the New Federal Equity Rules," 27 Harv. L. Rev. 629, 639.

Compare 2 Daniell, " Chancery Practice," 2d ed., 1045-46, 1053-54, 1069 et seq.

22

BRANDEIS, J., dissenting.

Corp. v. James, 272 U. S. 701; and in admiralty it was not required' by the Rules of this Court until 1921.'

Compare The P. R. R. No. 35, 48 F. (2d) 122. On ap- peals in admiralty, further proof is now taken by a coin- mission." As was said concerning a similar tribunal in Washington ex rel. Oregon Railroad & Navigation Co. v.

Fairchild, 224 U. S. 510, 527, the function of the deputy commissioner is like that of a master in chancery who has been required to take testimony and report his findings of fact and conclusions of law. Compare Los Angeles Brush Corp. v. James, supra; Kimberly v. Arms, 129 U. S. 512, 524, 525; Armstrong v. Belding Bros. & Co., 297 Fed.

728, 729. The holding that the difference between the procedure prescribed by the Longshoremen's Act and these historic methods of hearing evidence transcends the limits of congressional power when applied to the issue of the existence of a relation of employment, as dis- tinguished from that of the circumstances of an injury or the existence of a relation of dependency, seems to me without foundation in reality. Certainly, there- is no difference to the litigant.

"3Admiralty Rule 46, 254 U. S. 698. Subsequent to 1842, when the procedure in admiralty became subject to rules promulgated by this Court, and prior to 1921, no nile specifically required that evidence be taken orally in open court, and the practice in some districts appears to have been to take proof by a commission. Compare Admiralty Rules 44, 46, 210 U. S. 558; The Guy C. Goss, 53 Fed. 826, 827; The Wavelet, 25 Fed. 733, 734.

See also The Stm, 271 Fed.

953, 954. Under the present rules the district court may still, upon proper circumstances, refer causes in admiralty to a commissioner, without the consent of the parties, to hear the testimony and report conclusions on issues of fact and law. The P. R. R. No. 35, 48 F.

(2d) 122; Sorenson & Co. v. Liverpool, Brazil & River Plate Steam

Nay. Co., 47 F. (2d) 332. Compare The City of Washington, 92

U. S. 31, 39; Los Angeles Brush Mfg. Corp, v. James, 272 U. S. 701.

The commissioner's findings of fact are not disturbed unless clearly erroneous. La Bourgogne, 144 Fed. 781, 783, aff'd, 210. U. S. 95; Anderson v. Alaska S. S. Co., 22 F. (2d) 532, 535.

.4 See Admiralty Rule 45, 254 U. S. 698; Rule 15, 275 U. S. 607.

80

BRANDEIS, J., dis'iwing.

Even in respect to the question, discussed by the Court, of the finality to be accorded administrative findings of fact in a civil case involving pecuniary liability, I see no reason for making special exception as to issues of con- stitutional right, unless it be that under certain circum- stances, there may arise difficulty in reaching conclusions of law without consideration of the evidence as well as the findings of fact. See Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 443. Compare Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287. The adequacy of that reason need not be discussed. For as to the issue of employment no such difficulty can be urged. Two decades of experience in the States testify to the appro- priateness of the administrative process as applied to this issue, as well as all others, in workmen's compensation controversies.

Fifth. Trial de novo of the existence of the employer- employee relation is not required by the Judiciary Article of the Constitution. The mere fact that the Act deals only with injuries arising on navigable waters, and that independently of legislation such injuries can be redressed only in courts of admiralty," obviously does not preclude Congress from denying a trial de novo. For the Court holds that it is compatible with the grant of power under Article III to deny a trial de novo as to most of the facts

"The decision of the District Court, acquiesced in by the Circuit Court of Appeals and this Court, that the remedy under § 21 (b) of the Longshoremen's Act is in admiralty seems to me unfounded. The provision in that section for suspending or setting aside a compensa- tion order by injunction clearly implies a proceeding upon bill in equity. Congress may authorize actions for maritime torts to be brought on the law side of the federal district courts, Panama R. Co.

v. Johnson, 264 U. S. 375, 385; or in the state courts, Engel v. Daven-

port, 271 U. S. 33, 37. See also Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 384. No constitutional objection can exist, therefore, to giving effect to the remedy in equity provided in this Act.

22

BRANDEIS, J., dissenting.

upon which rest the allowance of a claim and the amount Its holding that the Constitution re- of compensation. quires a trial de novo of the issue of the employer- employee relation is based on the relation which that fact bears to the statutory scheme propounded by Con- gress, and to the constitutional authority under which the Act was passed. The argument is that existence of the relation of employer and employee is, as a matter of substantive law, 'indispensable to the application of the statute, because the power of Congress to enact the legis- lation turns upon its existence; and that whenever the question of constitutional power depends upon an issue of fact that issue must, as a matter of procedure, be de- terminable independently upon evidence freshly intro- duced in a court.1" Neither proposition seems to me well founded.

Whether the power of Congress to provide compensa- tion for injuries occurring on navigable waters is limited to cases in which the employer-employee relation exists has not heretofore been passed upon by this Court and was not argued in this case. I see no justification for as- suming, under those circumstances, that it is so limited.

"8 The opinion' of the Court suggests that, upon similar reasoning, the issue whether the injury occurred on navigable waters must like- wise be open to independent redetermination, upon the facts as well as the law, in the district court. The question whether any peculiar significance attaches to such a -controversy, entitling it to be twice tried, is not before us.

It has never been decided that the power of Congress to provide compensation for injuries to workmen received in the course of maritime employment depends upon the injury having occurred upon navigable waters. See Benedict, "The American Ad- miralty," 5th ed., § 25. Compare Soper v. Hammond Lumber Co.,

4 F. (2d) 872; State Industrial Commission v. Nordenholt Corp., 259

U. S. 263. The Longshoremen's Act undertakes to cover only the

field of admiralty jurisdiction within which the decisions of this Court have held uniformity to be required. See Stanley Morrison, "Work- men's Compensation and the Maritime Law," 38 Yale L. J. 472, 500.

137818'-32-6

BRANDEIS, J., dissenting.

Without doubt the word "employee" was used in the Long- shoremen's Act in the sense in which the common law de- fines it. But that definition is not immutable; and no provision of the Constitution confines the application of liability without fault to instances where the relation of employment, as so defined, exists." Compare Louis Pisitz Dry Goods Co. v. Yeldell, 274 U. S. 112, 116. Whether an individual is an employee or an independent contractor, depends upon criteria often subtle and uncertain of ap- plication,'" criteria which have been developed by proc-

"That legislatures may abolish defenses recognized at common law and create new causes of action not so recognized is beyond question.

So also is the power, under proper circumstances, to provide for lia- bility without fault. Compare St. Louis & San Francisco Ry. Co. v.

Mathews, 165 U. S. 1; Chicago, Rock Island & Pacific Ry. Co. v.

Zernecke, 183 U. S. 582; St. Louis, Iron Mountain & Southern Ry.

Co. v. Taylor, 210 U. S. 281; New York Central R. Co. v. White, 243

U. S. 188. Congress may provide that a carrier shall be liable for

loss or damage to goods occurring beyond its own lines. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 203. See also Atlantic Coast Line R. Co. v. Glenn, 239 U. S. 388, 393. "The rule," said the Court, "is adapted to secure the rights of the shipper by securing unity of transportation with unity of responsibility." That Congress might not similarly secure unity of responsibility for in- juries to all persons working upon the same enterprise, irrespective of. the particular relation existing of contract or employment, is not to be assumed without argument and in the absence of circumstances presenting the question. The logic upon which workmen's compen- sation acts have been sustained does not require insistence upon a technical master and servant relation. Compare Ward & Cow v.

Krinsky, 259 U. S. 503. See also Jeremiah Smith, ' Sequel to Work- men's Compensation Acts," 27 Harv. L. Rev. 235, 344.

The common law, of course, holds many examples of liability to third persons for injury sustained at the hands of an independent con- tractor or his servant.

e. g., Ellis v. Sheffield Co., 2 E. & B. 767;

Pickard v. Smith, 10 C. B. (n. s.) 470; Doll v. Ribetti, 203 Fed! 593.

"See the analysis and criticism in William 0. Douglas. "Vicarious Liability and Administration of Risk," 38 Yal&. L. J. 584, 594-604.

Compare 0. W. Holmes, "Agency," 5 Harv. L. Rev. 1, 14-16,

22

BRANDEIS, J., dissenting.

esses of judicial exclusion and inclusion, largely since the adoption of' the Constitution iD and with reference, for the most part, to considerations foreign to industrial ac- cident litigation.

It is not to be assumed that Con- gress, having power to amend and revise the maritimo law, is prevented from inodifying those criteria and enlarging the liability imposed by this Act so as to embrace all per- sons who arie engaged or engage themselves in the work of another, including those now designated as independent contractors. In the Longshoremen's Act itself, Congress, far from declaring the relation of master and servant in- dispensable in all cases to the application of the statute, provided expressly that a contractor shall be liable to em- ployees of a subcontractor who has failed to secure pay- ment of compensation. § 4 (a). State worknen's com- pensation laws almost invariably contain provisions for liability either to independent contractors or to their em- ployees, sometimes absolute and sometimes conditioned upon default by the immediate employer ;.2o and these pro-

"See Baty, " Vicarious Liability," passim; Francis Bowes Sayre, Criminal Responsibility for Acts of Another," 43 Harv. L. Rev. 689, 691-694; 0. W. Holmes, "Agency," 4 Harv. L. Rev. 345, 5 id. 1. The first text-book on Agency did not appear until 1812. Paley, " The Law. of Principal and Agent."

" See the digests of the statutes in L. V. Hill and Ralph H. Wilkin, "Workmen's Compensation Statute Law "; and F. Robertson Jones, " Digest of Workmen's Compensation Laws" (10th ed.). The provi- sion in. the New York Workmen's Compensation Act, § 5Q, is illustra- tive: "A contractor, the subject of whose contract is, involves or in- cludes a hazardous employment, who subcontracts all or any part of such contract shall be liable for and shall pay compensation to any ." In 1927, in recommending the exten- employee injured. sion of this provision to include owners or lessees as well as general contractors, the State Industrial Commissioner said: " From the point of view of making sure of compensation to injured workers, all the reasons for the existing obligations put upon a general contractor for a piece of building work who sublets part of the work, are equally cogent for doing the same in case of an owner or lessee of premises

.

.

BRANDEIS, J., dissenting.

visions appear to have been uniformly upheld.2 I can- not doubt that, even upon the view of the evidence taken by the District Court, Congress might have made Benson liable to Knudsen for the injury which he sustained.

Sixth. Even if the constitutional power of Congress to provide compensation is limited to cases in which the

who lets part of building work in precisely the same way. The prac- tical need for doing it has been shown by experience to be extensive owing to the large amount of building work now being done under the method above noted and which this amendment is designed to cover.

"The existing provision has proven very beneficial in the case of contractors, and it will be equally useful in the case of the type of owner-contractor, so to speak, who must now be dealt with for solu- tion of the same problem." Annual Report of the Industrial Com- missioner (1927), pp. 4, 5.

"1 See, e. g., Industrial Commission v. Continental Investment Co., 78 Colo. 398, 401, 402; 242 Pac. 49; Palumbo v. George A. Fuller Co., 99 Conn. 355, 358; 122 Atl. 63; Fisk v. Bonner Tie Co., 40 Idaho 304, 308; 232 Pac. 569; Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 504; 113 N. E. 976; American Steel Foundries v.

Industrial Board, 284 Ill. 99, 103; 119 N. E. 902; McDowell v. Duer, 78 Ind. App. 440, 444, 445; 133 N. E. 839; Burt v. Clay, 207 Ky.

278, 281; 269 S. W. 322; Seabury v. Arkansas Natural Gas Corp., 171 La. 199, 204, 205; 130 So. 1; White v. George B. H.

Macomber Co., 244 Mass. 195, 198; 138 N. E. 239; Burt v. Munising Woodenware Co., 222 Mich. 699, 702, 703; 193 N. W. 895; De Lonjay

v. Hartford Accident & Indemnity Co., 35 S. W. (2d) 911, 912

(Mo.); Sherlock v. Sherlock, 112 Neb. 797, 799; 201 N. W. 645; O'Banner v. Pendlebury, 107 N. J. L. 245, 247; 153 Atl. 494; Clark v.

Monarch Engineering Co., 248 N. Y. 107, 110; 161 N. E. 436; De Witt v. State, 108 Ohio St. 513, 522-525; 141 N. E. 551; Green v.

Industrial Commission, 121 Okla. 211, 212; 249 Pac. 933; Qualp v.

James Stewart Co., 266 Pa. 502; 109 At. 780; Murray v. Wasatch Grading Co., 73 Utah 430, 436, 439; 274 Pac. 940; Threshermen's Nat. Ins. Co. v. Industrial Commission, 201 Wis. 303, 306; 230 N. W.

67; Wisinger v. White Oil Corp., 24 F. (2d) 101, 102. But compare Flickenger v. Accident Comm ission, 181 Cal. 425, 432, 433; 184 Pac.

851. Liability to pay compensation obtains in England under circum-

stances in which no relation of employment exists. See Mulrooney v.

Todd (1909), 1 K. B. 165; Marks v. Came (1909), 2 K. B. 516.

22

BRANDEIS, J., dissenting.

employer-employee relation exists, I see no basis for a contention that the denial of the right to a trial de novo upon the issue of employment is in any manner sub- versive of the independence of the federal judicial power.

Nothing in the Constitution, or in any prior decision of this Court to which attention has been called, lends sup- port to the doctrine that a judicial finding of any fact involved in any civil proceeding to enforce a pecuniary liability may not be made upon evidence introduced be- fore a properly constituted administrative tribunal, or that a determination so made may not be deemed an independent judicial determination. Congress has re- peatedly exercised authority to confer upon the tribunals which it creates, be they administrative bodies or courts of limited jurisdiction, the power to receive evidence concerning the facts upon Which the exercise of federal power must be predicated, and to determine whether those facts exist. The power of Congress to provide by legislation for liability under certain circumstances sub- sumes the power to provide for the determination of the existence of those circumstances.

It does not depend upon the absolute existence in reality of any fact.

It is true that, so far as Knudsen is concerned, proof of the existence of the employer-employee relation is essential to recovery under the Act. But under the defini- tion laid down in Noble v. Union River Logging Co., 147

U. S. 165, 173, 174, that fact is not jurisdictional.

It is quasi-jurisdictional. The existence of a relation of em- ployment is a question going to the applicability of the substantive law, not to the jurisdiction of the tribunal.

Jurisdic'ion the parties concerning the subject-matter. Compare Rey- nolds v. Stockton, 140 U. S. 254, 268. Obviously, the deputy commissioner had not only the power but the duty to determine whether the employer-employee rela- tion existed. When a duly constituted tribunal has juris-

is the power to adjudicate between

86

BI(ANDEIS, J., dissenting.

diction of the parties and of the subject-matter, that jurisdiction is not impaired by errors, however grave, in applying the substantive law. Dennison v. Payne, 293 Fed. 333, 341. Compare Chicago, Rock Island & Pacific Ry. Co. v. Schendel, 270 U. S. 611, 617; Matin v. Auge- dahl, 247 U. S. 142, 149; Binderup v. Path Exchange, 263 U. S. 291, 305-307. This is true of tribunals of spe- cial as well as of those of general jurisdiction.

It is true of administrative, as well as of judicial tribunals.

If errors in the application of law may not be made the basis of collateral attack upon the decision of an adminis- trative tribunal, once that decision has become final, no "jurisdictional" defect can compel the independent re- examination in court, upon direct review, of the facts affecting such applicability.

The "judicial power" of Article III of the Constitution is the power of the federal government, and not of any inferior tribunal. There is in that Article nothing which requires any controversy to be determined as of first in- stance in the federal district courts. The jurisdiction of those courts is subject to the control of Congress.12 Mat-

Tinner v. Bank of North America, 4 Dall. 8, 10; United States v.

Hudson & Goodwin, 7 Cranch 32, 33; Shelden v. Sill, 8 How. 441, 449; Justices v. Murray, 9 Wall. 274, 280; Insurance Co. v. Dunn, 19 Wall. 214, 226; Stevenson v. Fain, 195 U. S. 165, 167; Kline v. Burke (7onstruction Co., 260 U. S. 226, 234.

It was not until the Act of MNarch 3, 1875, c. 137, IS Stat. 470, that Congress extended the juris- diction of the crcuit courts to " cases arising under the laws of the United States," thus permitting to be exercised "the vast range of power which had lain dormant in the Constitution since 1789."

See Felix Frankfurter and James M. Landis, "The Business of the Supreme Court," pp. 65-68; Charles Warren, "Federal Criminal Laws and the State Courts," 38 Harv. L. Rev. 545. Large areas of the potential jurisdiction of the lower federal courts are now occu- pied by other tribunals. As to legislative courts, see Wilber Griffith Katz, "Federal Legislative Courts," 43 Harv. L. Rev. 894. Congress has repeatedly exercised power to exclude from the federal courts cases not involving the requisite jurisdictional amount. Cases aris-

22

BRANDEIS, J., dissenting.

ters which may be placed within their jurisdiction may If there be instead be committed to the state courts. any controversy to which the judicial power, extends that may not be subjected to the conclusive determination of administrative bodies or federal legislative courts, it is not because of any prohibition against the diminution of the jurisdiction of the federal district courts as such, but because, under certain circumstances, the constitu- tional requirement of due process is a requirement of judi- cial process. An accumulation of precedents, already re- ferred to,2" has established that in civil proceedings in-

ing under the Federal Employers'. Liability Act are triable in either the state courts or the federal district courts. See Second Employers' Liability Cases, 223 U. S. 1, 56, 57-59; Douglass v. New York, New Haven & Hartford R. Co., 279 U. S. 377. So also cases under § 20 of the Seamen's Act, as amended by the Merchant Marine Act of 1920, § 33. Engel v. Davenport, 271 U. S. 33, 37; Panama R. Co. v.

Vasquez, 271 U. S. 557, 562.

"3See decisions and statutes collected in note 5, supra. So far as concerns the question here presented, it is immaterial whether the controversy is wholly between private parties or is between the Gov- ernment and a citizen. The fact that litigation under the Longshore- men's Act is, in- substance, betveen private parties (even though under § 21 (b) the deputy commissioner is the only necessary party respondent) does not warrant the inference that the administrative features of the Act present a question not heretofore deciled. The tribunals listed in note 5, supra, deal with matters outside the scope of the doctrine recently examined in Ex parte Bakelite Corporation, 279 U. S. 438. While the opinion in that case referred to "various matters arising between the government and others" as appropriate for the cognizance of legislative courts, the reference was restricted to matters "which from their nature do not require judicial determina- tion and yet are susceptible to it," the mode of determining which "is completely within congressional control." Ibid. at 451. The sug- gestion that due process does not require judicial process in any con- troversy to which the government is a party would involve a revi- sion of historic conceptions of the nature of the federal judicial sys- tem. That all questions arising in the administration of the Inter- state Commerce Act, for example, or between a taxpayer and the covernment under the tax laws, could be committed by Congress

88

3RANDEIS, J., dissenting.

volving property rights determination of facts may consti- tutionally be made otherwise than judicially; and neces- sarily that evidence as to such facts may be taken outside of a court. I do not conceive that Article III has properly any bearing upon the question presented in this case.

Seventh. The cases cited by -the Court in support of its conclusion that the statute would be invalid if con- strued to deny a trial de novo of issues of fact affecting the existence of the employer-employee relation seem to me irrelevant. Most of those decisions dealt with tri- bunals exercising functions generically different from the function which Congress has assigned to the deputy commissioners under the Longshoremen's Act, and no question arose analogous to that now presented.

By the Longshoremen's Act, Congress created fact- finding and fact-gathering tribunals, supplementing the courts and entrusted with power to make initial determi- nations in matters within, and not outside, ordinary judi- cial purview. The purpose of these administrative bodies is to withdraw from the courts, subject to the power of judicial review, a class of controversies which experience has shown can be more effectively and expeditiously handled in the first instance by a special and expert tri- bunal. The proceedings of the deputy commissioners are endowed with every substantial safeguard of a judicial hearing. Their conclusions are, as a matter of right, open to reexamination in the courts on all questions of law; and, we assume for the purposes of this discussion, may be open even on all questions of the weight of the evidence.

The administrative bodies in the cases referred to by the Court, on the contrary, are in no sense fact-gathering

exclusively to executive officers, in respect to issues of law as well as of fact, has never been supposed. Thus there is no indication in the opinion in Ex parte Bakelite Corporation that the Commerce Court was a legislative court, although instances of the creation of such courts were considered in detail. See Wilber Griffith Katz, "Fed- .ral Legislative Courts," 43 Harv. L. Rev. 894, 914, 915.

22

BRANDEIS, J., dissenting.

or fact-finding tribunals of first instance. They are tribu- nals of final resort within the scope of their authority.

Their concern is with matters ordinarily outside of judi- cial competence,-the deportation of aliens, the enforce- ment of military discipline, the granting of land patents, and the use of the mails,-matters which are within the power of Congress to commit to conclusive executive de- termination. Compare Ex parte Bakelite Corp, 279 U. S.

438,451. Their procedure may be summary and frequently is.24 With respect to them, the function of the courts is not one of review but essentially of control-the func- tion of keeping them within their statutory authority.5

4Compare Miller v. Horton, 152,Mass. 540; 26 N. E. 100, and

Pearson v. Zehr, 138 I1. 48; 29 N. E. 854, cited by the Court. These cases involved summary administrative action, and the complaining individuals had been given no opportunity to be heard on the ques- tion whether their property was in fact subject to the destruction ordered. The degree of finality appropriate in administrative action must always depend upon the character of the administrative hearing provided. Compare Dickinson, "Administrative Justice and the Su- premacy of Law," pp. 260-261; E. F. Albertsworth, "Judicial Re- view of Administrative Action by the Federal Supreme Court," 35 Harv. L. Rev. 127, 152, 153.

In most States, the tendency appears to be to deny the right, in a tort action against an administrative officer, to question the existence of the fact justifying his act, if a hearing was provided or if a suit for injunction could have been brought. See Freund, "Administrative Powers Over Persons and Property," pp. 248-252; Kirk v. Board of Health, 83 S. C. 372 383, 65 S. E. 387. Compare North American Cold Storage Co. v. Chicago, '211 U. S. 306, 316, 317. In cases arising under the Workmen's Com- pensation Laws, where formal hearing is available, the Massachusetts and Illinois courts, in common with many others, have held the ad- ministrative finding of the fact of employment conclusive. Churchill's Case, 265 Mass. 117; 164 N. E. 68; Hill's Case, 268 Mass. 491; 167

N. E. 914; Cinofsky v. Industrial Commission, 290 Ill. 521; 125 N. E.

286; Franklin Coal Co. v. Industrial Commission, 296 Ill. 329; 129

'Compare Frankfurter and Davison, "Cases on Administrative Law," Preface, p. viii. See Albert Levitt, "The Judicial Review of Executive Acts," 23 Mich. L. Rev. 588, 595 et seq. This authority

BRANDEIS, J., dissenting.

No method of judicial review of the administrative action had been provided by Congress in any of the cases cited; and the question of the power to confine review to the administrative record accordingly did not arise.

In each case, the Court held that if the administrative officer had acted outside his authority, the unwritten law supplied a remedy, and that relief could be had, according to the nature of the case, on bill in equity or habeas corpus. 21

may embrace as well the determination of questions of law as of fact, depending upon the judicial construction given to the authority of the tribunal. Thus in In re Grimley, In re Morrissey, Noble v. Union River Logging Co., Smith v. Hitchcock, and Bates & Guild Co. v.

Payne, all cited in note 26, infra, the Court recognized the conclusive- ness of many decisions of law by the tribunals in question. Tribunals of this character are of course empowered, under ordinary circum- stances, to make conclusive determinations of fact. See e. g., Passa- vant v. United States, 148. U. S. 214, 219; Medbury v. United States, 173 U. S. 492, 497, 498; Silberschein v. United States, 266 U. S. 221, 225; Quon Quon Poy v. Johnson, 273 U. S. 352, 358.

"°(a) In Ng Fung Ho v. White, 259 U. S. 276, the statute author- ized the deportation only of aliens, without provision for judicial re- view of the executive order. Act of February 5, 1917, c. 29, § 19, 39 Stat. 874, 889. Upon application for a writ of habeas corpus, by a person arrested who claimed to be a citizen, it was held that he was entitled to a judicial determination of that claim. No question arose as to 'whether Congress might validly have provided for review ex- clusively upon the record made in the executive department; nor as to the scope of review which might hav been permissible upon such record.

(b) In re Grimley, 137 U. S. 147, and In re Morrissey, 137 U. S.

157, deal with the action of military tribunals. Military tribunals form a system of courts separate from the civil courts and created by virtue of an independent grant of power in the Constitution. Art. I, § 8, el. 14, 16. They have authority to determine finally any case their proceedings . . . are over which they have jurisdiction; "and the purpose not open to review by the civil tribunals, except for of ascertaining Whetler the military court had jurisdiction of the per- son and subject-mattef, and whether, though having such jurisdic- tion, it had exceeded its powers in the sentence pronounced." Carter

v. Roberts, 177 U. S. 496, 498; Grafton v. United States, 206 U. S. 33,

22

BRANDEIS, J., dissenting.

The question decided in each case was that Congress should not be taken, in the absence of specific provision, to have intended to subject the individual to the uncon- trolled action of a public administrative officer. See American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 110. No comparable issue is presented here.

Reliance is also placed, as illustrative of the necessary independence of the federal judicial power, upon the. de- cision in Ohio Valley Water Co. v. Ben Avon Borough, 253

U. S. 287.27 That case, however, involved only the ques-

347. As Congress did not provide any method for review by the

courts of the decision of military tribunals, all questions of law concern- ing military jurisdiction are open to independent determinaton in the civil courts; and the cases of In re Grimley and In re Morrissey, decide nothing more. Whether Congress could make the findings of "jurisdictional facts" of military tribunals conclusive upon civil courts is a question which appears never to have been raised.

(c) In Noble v. Union River Logging Co., 147 U. S. 165, 174, relief was granted by bill in equity to stay illegal and unauthorized action of the Secretary of the Interior in respect to the public lands, there bring no method of judicial review prescribed by statute. Compare Smelting Co. v. Kemp, 104 U. S. 636, 641.

(d) In Smith v. Hitchcock, 226 U. S. 53, 58, as in Bates & Guild Co. v. Payne, 194 U. S. 106, 109, 110, and American School of Mag- netic Healing Co. v. McAnnulty, 187 U. S. 94, 109, bills in equity were entertained to review acts of the Postmaster General alleged to be unauthorized, Congress not having provided any method of judicial review. In each case the question involved was stated to be one of law.

" The decision in the Ohio Valley Water Company Case has evoked extensive and varied comment. See, e. g., Curtis, "Judicial Review of Commission Rate Regulation-The Ohio Valley Case," 34 Harv. L.

Rev. 862; Albertsworth, "Judicial Review of Administrative Action by the Federal Supreme Court," 35 Harv. L. Rev. 127; C. W. Pound, "The Judicial Power," 35 Harv. L. 787; Brown, "The Functions of Courts and Commissions in Public Utility Rate Regulations," 38 Harv. L. Rev. 141; Wiel, "Administrative Finality," 38 Harv. L. Rev.

447; Buchanan, "The Ohio 7alley Water Company Case and the Val- uation of Railroads," 40 Harv. L. Rev. 1033; Beutel, "Valuation as a

BRANDEIS, J., dissenting.

tion of the scope of review, upon the administrative record, in confiscation cases.

It held that the reviewing court must have power to weigh the evidence upon which the administrative tribunal entered the order. It decided nothing concerning the right to a trial de novo in court; and the opinion made no reference to such a trial.

It could not have decided anything as to the effect of Article III of the Constitution. For the case came here from the highest court of the State, arose under the Fourteenth Amendment, and did not relate to the jurisdiction of the lower federal courts. Moreover, in -no event can the issues presented in the review of rate orders alleged to, be confiscatory, which involve difficult questions of mixed law and fact, be deemed parallel to those presented in the review of workmen's compensation awards.28 Com- pare the issues in Ohio Valley Water Co. v. Ben Avon Borough, supra, with that in Dahlstrom Metallic Door Co. v. Industrial Board, 284 U. S. 594.

Whatever may be the propriety of a rule permitting special re~xamination i -at trial court of so-called "juris-

Requirement of Due Process of Law in Rate Cases," 43 Harv. L.

Rev. 1249; Green, The Ohio Valley Water Case, 4 Ill. L. Q. 55; Freand, "The Right to a Judicial Review in Rate Controversies," 27

W. Va. L. Q. 207; Hardman, "Judicial Review as a Requirement of

Due Process in Rate Regulation," 30 Yale L. J. 681; Isaacs, "Judicial Review of Administrative Findings," 30 Yale L. J. 781. No cQm- roentator, however, appears to have understood the decision as recog- nizing in any manner a right to trial de novo in court upon confisca- tion issues.

" It is cause for regret that the Court in determining. this contro- veiy should have declared, obiter, that in matters of State public utility regulation involving administrative action of a special Charac- ter, and raising questions under a different constitutional provision, a

m. ode of procedure is required contrary to that almost universally

established under State law (see David E. Lilienthal, "The Federal Courts and State Regulation of Public Utilities," 43 Harv. L. Rev.

379, 412, 413), and calculated seriously to embarrass -the operation of the administrative method in that field.

22

BRANDEIS, J., dissenting.

dictional facts" passed upon by administrative bodies having otherwise final jurisdiction over matters properly committed to them, I find no warrant for extending the doctrine to other and different administrative tribunals whose very function is to hear evidence and make initial determinations concerning those matters which it is sought to reexamine. Such a doctrine has never been applied to tribunals properly analogous to the deputy commission- ers, such as the Interstate Commerce Commission, the Federal Trade Commission, the Secretary of Agriculture acting under the Packers and Stockyards Act, and the like.2" Logically applied it would seriously impair the entire administrative process."

Eighth. No good reason is suggested why all the evi- dence which Benson presented to the district court in this cause could not have been presented before the deputy commissioner; nor why he should have been permitted to try his case provisionally before the administrative tribunal and then to retry it in the district court upon additional evidence theretofore withheld. To permit him to do so violates the salutary principle that administra- tive remedies must first be exhausted before resorting to the court, imposes unnecessary and burdensome expense upon the other party and cripples the effective adminis- tration of the Act. Under the prevailing practice, by which the judicial review has been confined to questions of law, the proceedings before the deputy commissioners

But see Interstate Commerce Commission v. Louisville & Nash- ville R. Co., 227 U. S. 88, 92. The statement by Mr. Justice Lamar there, however,-ivent no further than to indicate that in some cir- cumstances the courts on review of orders of the Interstate Commerce Commission might pass an independent judgment upon the evidence adduced before the Commission. See also Iterstate Commerce Con- mission v. Northern Pacific Ry. Co., 216 U. S. 538, 544; Manufac- turers Ry. Co. v. United States, 246 U. S. 457, 488-490.

See Dickinson, "Administrative Justice and the Supremacy of Law," p. 310.

94

BRANDEIS, J., dissenting.

have proved for the most part non-controversial; 81 and relatively few cases have reached the courts.8 2 To permit a contest de novo in the district court of an issue tried, or triable, before the deputy commissioner will, I fear, gravely hamper the effective administration of the Act.

The prestige of the deputy commissioner will necessarily be lessened by the opportunity of relitigating facts in the courts. The number of controverted cases may be largely increased. Persistence in controversy will be en- couraged. And since the advantage of prolonged litiga- tion lies with the party able to bear heavy expenses, the .purpose of the Act will be in part defeated.8 3

81 Out of the 30,383 non-fatal cases disposed of during the fiscal year ending June 30, 1931, the deputy commissioners held hearings in only 729, according to information furnished by the United States Employees' Compensation Commission. Compensation payments were completed in 11,776 cases, or 38.8 per cent. of the total. In 17,328 cases, or 57 per cent., the injured employee failed to receive compensation because no time was lost, or less than seven days, on account of the injury. The balance of 1,279 cases, amounting to 4.2 per cent. of the whole, were dismissed because they did not come within the scope of the law. Among the 18,607 non-compensated cases, formal claims were filed by the employee in only 1,025 instances.

See, also, Report of the Compensation Commission, 1930, pp. 68-70.

.82 For the fiscal year ending June 30, 1931, 101 new cases were filed in the district 'courts, out Of a total of 30,489 cases disposed of.

Report of the United States Employee's Compensation Commission, pp. 69, 71. For the three preceding years the number of cases filed in the courts was, respectively, 61, 58, and 15. Report, 1930, p. 62; id. 1929, p. 70; id. 1928, p. 34. The decision of the Circuit Court of Appeals in the case at bar declaring the right to a trial de novo was rendered November 17, 1930, and the first opiniQn of the District Court on May 27, 1929.

8 How serious these consequences will be is a question of specula- tion;- but it is plain that they will be aggravated by the inherent uncertainty in the scope of the doctrine announced. The determina- is calcu- tion of what facts are "jurisdidtional" or " fundamental" lated to provoke a multitude of disputes. That there is a difference in kind, for example, between the defense that the injured claimant is not an employee, and that he was nat acting as an employee when

22

Syllabus.

in my opinion the judgment of the Circuit Court of Appeals should be reversed and the case remanded to the District Court, sitting as a court of equity, for con- sideration and decision upon the record made before the deputy commissioner.

MR. JUSTICE STONE and MR. JUSTICE ROBERTS join in this opinion.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE

No. 457. Argued January 4, 6, 1932.-Decided February 23, 1932.

1. An owner of land lying within the proposed channel of the Bocuf

Floodway, part of the plan authorized by the Mississippi River Flood Control Act, brought suit to enjoin the carrying out of the work in the floodway and specifically to enjoin the receiving of bids for the construction of the guide-levees therefor, claiming that if the work should be commenced without proceedings first having been instituted to condemn his land or the flowage rights thereon, the United States would in effect be taking his property without due process of law and without just compensation. Complainant con- ceded that the Act was valid and that it authorized those charged with its execution to take his lands or an easement therein. Held, that injunction was not the proper remedy, for if what was done, or was contemplated, constituted a taking of the property, then under the Tucker Act there was a plain, adequate and complete remedy at law. P. 104.

2. The Fifth Amendment does not entitle the owner of lands taken for

public use to be paid in advance of the taking.

Id.

he was injured, or that there is a difference between the latter defense and the defense that the disability, if any, from which he suffers resulted only in part, or not at all, from the employment in which he claims to have suffered it, are propositions which employers will be unlikely to accept until they have submitted them to the decision of the courts. The effectiveness of this legislation will be lessened by this opportunity for barren controversy over procedural rights and by delayed or thwarted determination of substantive ones,