U.S. Supreme Court CROWELL v. BENSON, 285 U.S. 22 (1932)

[Page 285 U.S. 22, 39]

ment of compensation by procuring insurance or by becoming self-insruers in the manner stipulated. Section 32 (33 USCA 932). Failure to provide such security is a misdemeanor. Section 38 (33 USCA 938).

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. 3, 2; Nogueira v. N. Y., N. H. & H. R. Co., 281 U.S. 128, 138, 50 S. Ct. 303), 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 application of the act to cases where recovery 'through workmen's compensation proceedings may not validly be provided 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. [Footnote 3] The pro-

[Page 285 U.S. 22, 40]

priety of providing by federal statute for compensation of employees in such cases had been expressly recognized 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. [Footnote 5] In de-

[Page 285 U.S. 22, 44]

to the claimant and employer. Section 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 willful intention of such employee to injure or kill himself or another. Section 20 (33 USCA 920). A compensation order becomes effective when filed, and, unless proceedings are instituted to suspend it or set it aside it becomes final at the expiration of thirty days. Section 21(a), 33 USCA 921(a). If there is a change in conditions, the order may be modified or a new order made. Section 22, (33 USCA 922). 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. Section 18 (33 USCA 918).

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, 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. [Footnote 9] Payment is not to be stayed pending such proceedings unless, on hearing after notice, the court allows the stay on evi-

[Page 285 U.S. 22, 47]

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 consequences 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 another.' While the exclusion of compensation in such cases is found in what are called 'coverage' provisions of the act (section 3 (33 USCA 903)), 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 administrative 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 objections under the due process clauses of the Fifth and Fourteenth Amendments. [Footnote 11]

[Page 285 U.S. 22, 51]

parte Bakelite Corporation, 279 U.S. 438, 451, 49 S. Ct. 411, 413. Familiar illustrations of administrative agencies created for the determination of such matters are found in connection with the exercise of the congressional power as to interstate and foreign commerce, taxation, immigration, the public lands, public health, the facilities of the post office, pensions, and payments to veterans. [Footnote 13]

[Page 285 U.S. 22, 55]

mental requirements are that the injury occurs upon the navigable waters of the United States, and that the relation of master and servant exists. These conditions are indispensable to the application of the statute, not only because the Congress has so provided explicitly (section 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,18 the Congress cannot reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. [Footnote 19] Unless the injuries to which the act relates occur upon the navigable waters of the United States, they fall outside that jurisdiction. [Footnote 20] 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. [Footnote 22] Again, it

[Page 285 U.S. 22, 57]

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 instrumentalities 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 bureaucratic character alien to our system, wherever fundamental 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 distribution of state powers is apparent. A state 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 those restrictions of the Federal Constitution which are applicable to state authority. [Footnote 24] 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 administrative 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 respect to taxes, and of the Labor Department as to the

[Page 285 U.S. 22, 58]

admission and deportation of aliens. Ex parte Bakelite Corporation, supra. 25 Similar considerations apply to decisions with respect to determinations of fact by boards and commissions created by the Congress to assist it in its legislative 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 impracticable to consider and legislate upon directly and the action being none the less legislative in character because taken through a subordinate body. [Footnote 26] And where administrative 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 jurisdictional27 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 jurisdictional28 or where the question concerns the proper exercise of the judicial power of the United States in enforcing constitutional limitations.

[Page 285 U.S. 22, 62]

When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality 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. [Footnote 30] We are of the opinion that such a construction is permissible and should be adopted in the instant case. The Congress has not expressly provided that the determinations by the deputy commissioner of the fundamental or jurisdictional 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 deputy commissioner is predicated primarily upon the provision (section 19(a), 33 USCA 919(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 compensation 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 essential 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.' Section 21(b), 33 USCA 921(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 question as to validity, we think that the statute should be so construed. Further, the act expressly requires that,

[Page 285 U.S. 22, 67]

have full power and authority to hear and determine all questions in respect of' a claim; by section 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 section 21(b) that, 'if not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings ... instituted in the Federal district court. ...'

The phrase in section 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 Congress, for review by the Circuit Courts of Appeals of decisions of the Board of Tax Appeals. [Footnote 32] This Court has settled that the phrase as used in the tax statute means a review upon the record made before the Board. Phillips v. Commissioner, 283 U.S. 589, 600, 51 S. Ct. 608. The Compensation Commission has consistently construed the Longshoremen's Act as providing for finality of the deputy commissioners' findings on all questions of fact;33 and care

[Page 285 U.S. 22, 68]

has been taken to provide for formal hearings appropriate to that intention. Compare Brown v. United States, 113 U.S. 568, 571, 5 S. Ct. 648; Mason v. Routzahn, 275 U.S. 175, 178, 48 S. Ct. 50. 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 commissioner; have held that, in respect to those issues, the review afforded must be held upon the record made before the deputy commissioner; and that the deputy commissioner's findings of fact must be accepted as conclusive if supported by evidence, unless there was some irregularity in the proceeding before him. [Footnote 34] Nearly all the state

[Page 285 U.S. 22, 69]

courts have construed the state workmen's compensation laws, as limiting the judicial review to matters of law. [Footnote 35] Provisions in other federal statutes, similar to

[Page 285 U.S. 22, 71]

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. [Footnote 37] 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 providing 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 counsel, section 19(d), 33 USCA 919(d); that the attendance of witnesses and the

[Page 285 U.S. 22, 72]

production of documents may be compelled, section 27(a), 33 USCA 927(a); that the hearings shall be public, and that they shall be stenographically reported, section 23(b), 33 USCA 923(b); that there shall be made 'a record of the hearings and other proceedings before the deputy commissioners,' section 23(b); that 'the deputy commissioner shall have full power and authority to hear and determine all questions in respect of' a claim, section 19(a); and that his order shall become final after thirty days, unless a proceeding is filed under section 21(b), 33 USCA 921(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. [Footnote 38] Compare Caminetti v. United States, 242 U.S. 470, 490, 37 S. Ct. 192, L. R. A. 1917F, 502, Ann. Cas. 1017B, 1168.

[Page 285 U.S. 22, 75]

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, 50 S. Ct. 220, 226, concerning orders of the Secretary of Agriculture under the Packers and Stockyards Act (7 USCA 181 et seq.): 'A proceeding under section 316 of the Packers and Stockyards Act (7 USCA 217) 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 determined 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.'39

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 practice of many of the states, is performed by writs of certiorari. [Footnote 40] It presents to the reviewing court the record of the proceedings before the administrative tribunal in order that determination may be made, among other things, whether the authority conferred has been properly exercised. [Footnote 41] Neither upon bill in equity in the fed-

[Page 285 U.S. 22, 79]

Corporation v. James, 272 U.S. 701, 47 S. Ct. 286; and in admiralty it was not required by the rules of this Court until 1921.44 Compare The P. R. R. No. 35 (C. C. A.) 48 F.(2d) 122. On appeals in admiralty, further proof is now taken by a commission. [Footnote 45] As was said concerning a similar tribunal in Washington ex rel. Oregon Railroad & Navigation Co. v, Fairchild, 224 U.S. 510, 527, 32 S. Ct. 535, 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 Corporation v. James, supra; Kimberly v. Arms, 129 U.S. 512, 524, 525 S., 9 S. Ct. 355; Armstrong v. Belding Bros. & Co. (C. C. A.) 297 F. 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 distinguished 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.

[Page 285 U.S. 22, 81]

upon which rest the allowance of a claim and the amount of compensation. Its holding that the Constitution requires 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 Congress, 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 legislation 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 determinable independently upon evidence freshly introduced in a court. [Footnote 47] Neither proposition seems to me well founded.

[Page 285 U.S. 22, 82]

Without doubt the word 'employee' was used in the Longshoremen's Act in the sense in which the common law defines 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. [Footnote 48] Compare Louis Pisitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116, 47 S. Ct. 509, 51 A. L. R. 1376. Whether an individual is an employer or an independent contractor depends upon criteria often subtle and uncertain of application,49 criteria which have been developed, by proc-

[Page 285 U.S. 22, 84]

visions appear to have been uniformly upheld. [Footnote 52] I cannot 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.

[Page 285 U.S. 22, 86]

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 (C. C. A.) 293 F. 333, 341. Compare Chicago, Rock Island & Pacific Ry. Co. v. Schendel, 270 U.S. 611, 617, 46 S. Ct. 420, 53 A. L. R. 1265; Marin v. Augedahl, 247 U.S. 142, 149, 38 S. Ct. 452; Binderup v. Pathe Exchange, , 305-307, 44 S. Ct. 96. This is true of tribunals of special 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 administrative 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 3 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 instance in the federal District Courts. The jurisdiction of those courts is subject to the control of Congress. [Footnote 53] Mat-

[Page 285 U.S. 22, 89]

or fact-finding tribunals of first instance. They are tribunals of final resort within the scope of their authority. Their concern is with matters ordinarily outside of judicial competence,-the deportation of aliens, the enforcement 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 determination. Compare Ex parte Bakelite Corporation, 279 U.S. 438, 451, 49 S. Ct. 411. Their procedure may be summary and frequently is. [Footnote 55] With respect to them, the function of the courts is not one of review but essentially of control-the function of keeping them within their statutory authority. [Footnote 56]

[Page 285 U.S. 22, 90]

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. [Footnote 57]

[Page 285 U.S. 22, 92]

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 3 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. [Footnote 59] Compare 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, 52 S. Ct. 202, 76 L. Ed. -.

[Page 285 U.S. 22, 93]

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 re-examine. Such a doctrine has never been applied to tribunals properly analogous to the deputy commissioners, such as the Interstate Commerce Commission, the Federal Trade Commission, the Secretary of Agriculture acting under the Packers and Stockyards Act (7 USCA 181 et seq.) and the like. [Footnote 60] Logically applied it would seriously impair the entire administrative process. [Footnote 61]

[Page 285 U.S. 22, 94]

have proved for the most part noncontroversial;62 and relatively few cases have reached the courts. [Footnote 63] 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 encouraged. And since the advantage of prolonged litigation lies with the party able to bear heavy expenses, the purpose of the act will be in part defeated. [Footnote 64]

[Page 285 U.S. 22, 95]

In my opinion the judgment of the Circuit Court of Appeal should be reversed and the case remanded to the District Court, sitting as a court of equity, for consideration and decision upon the record made before the deputy commissioner.

Mr. Justice STONE and Mr. Justice ROBERTS join in this opinion. Footnotes

Footnote 1 Section three of the act as to 'Coverage' provides:'Sec. 3. (a) Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability 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 proceedings 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.' 33 USCA 903.

Footnote 2 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 S., 9 S. Ct. 612; In re Garnett, 141 U.S. 1, 14, 11 S. Ct. 840; The Hamilton, 207 U.S. 398, 404, 28 S. Ct. 133; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 62, 34 S. Ct. 733, 51 L. R. A. (N. S.) 1157; Southern Pacific Co. v. Jensen, 244 U.S. 205, 214, 215 S., 37 S. Ct. 524, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160, 40 S. Ct. 438, 11 A. L. R. 1145; State of Washington v. W. C. Dawson & Co., 264 U.S. 219, 227, 228 S., 44 S. Ct. 302; Panama R. Co. v. Johnson, 264 U.S. 375, 386, 388 S., 44 S. Ct. 391.

Important illustrations of the exercise of this authority are the Limitation of Liability Act of 1851 (9 Stat. 635 (46 USCA 175, 181 et seq.); Hartford Accident & Indemnity Co. v. Southern Pacific Co., , 213-215, 47 S. Ct. 357); the Seamen's Act of 1915 (38 Stat. 1185; Chelentis v. Luckenbach Steamship Co., 247 U.S. 372, 381, 384 S., 38 S. Ct. 501); the Ship Mortgage Act of 1920 (41 Stat. 1000; Morse Drydock & Repair Co. v. Northern Star, 271 U.S. 552, 555, 556 S., 46 S. Ct. 589); and the Merchant Marine Act of 1920 (41 Stat. 988), incorporating, in relation to seamen, the Federal Employers' Liability Act (45 USCA 51-59, 28 USCA 71) into the maritime law of the United States. 41 Stat. 1007 (46 USCA 688); Panama R. Co. v. Johnson, supra; Engel v. Davenport, 271 U.S. 33, 35, 46 S. Ct. 410; Panama R. Co. v. Vasquez, 271 U.S. 557, 559, 560 S., 46 S. Ct. 596; Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 147, 49 S. Ct. 88. See U. S. C., titles 33 and 46 (33 and 46 USCA).

Footnote 3 Southern Pacific Co. v. Jensen, , 37 S. Ct. 524 L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S. Ct. 438, 11 A. L. R. 1145; State of Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S. Ct. 302; Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S. Ct. 157. (continued on p. 40)

For decisions since the passage of the act in question, see Messel v. Foundation Co., 274 U.S. 427, 47 S. Ct. 695; Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S. Ct. 88; London Guarantee & Accident Co. v. Industrial Commission, 279 U.S. 109, 125, 49 S. Ct. 296; Baizley Iron Works v. Span, , 50 S. Ct. 306.

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, 42 S. Ct. 89; Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 477, 42 S. Ct. 157, 25 A. L. R. 1008; Millers' Indemnity Underwriters v. Braud, 270 U.S. 59, 64, 46 S. Ct. 194; Sultan Railway & Timber Co. v. Department of Labor, 277 U.S. 135, 137, 48 S. Ct. 505, Baizley Iron Works v. Span, supra, at pages 230, 231 of 281 U. S., 50 S. Ct. 306. See, also, Red Cross Line v. Atlantic Fruit Co., , 44 S. Ct. 274 68 L. Ed. 582.

Footnote 4 State of Washington v. W. C. Dawson & Co., 264 U.S. 219, 227, 44 S. Ct. 302, 305, 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 compensating injured employees; but it may not be delegated to the several states.'

Footnote 5 The Committee on the Judiciary of the Senate, in reporting upon the proposed measure, said (Sen. Rep. No. 973, 69th Cong., 1st Sess., p. 16):'The committee deems it unnecessary to comment upon the modern change in the reltion between employers and employees establishing systems of compensation as distinguished from 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 compensation 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 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, , 37 S. Ct. 524, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S. Ct. 438, 11 A. L. R. 1145; State of Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S. Ct. 302.)' The House Committee in its report made the following statement (House Rep. No. 1767, 69th Cong., 2d Sess., p. 20): '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 jurisdiction 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 employment in nearly overy State in the Union.'

Footnote 6 See, e. g., The Osceola, 189 U.S. 158, 169, 23 S. Ct. 483; The Iroquois, 194 U.S. 240, 241, 242 S., 24 S. Ct. 640. In Chicago, R. I. & P. R. Co. v. Zernecke, 183 U.S. 582, 586, 22 S. Ct. 229, the Court said: 'Our jurisprudence affords examples of legal liability without fault, and the deprivation of property without fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in admiralty law is another.' See Holmes, 'The Common Law,' pp. 26-29; The China, 7 Wall. 53, 67, 68; Sherlock v. Alling, , 105-108; Homer Ramsdell Transp. Co. v. La Compagnie Generale Transatlantique, 182 U.S. 406, 413, 414 S., 21 S. Ct. 831. As to the basis of general average contribution, see Ralli v. Troop, 157 U.S. 386, 394, 395 S., 15 S. Ct. 657.

Footnote 7 This Commission was created by the Act of September 7, 1916, c. 458 , 28, 39 Stat. 748, U. S. C., tit. 5, 778 (5 USCA 778).

Footnote 8 In the regulations promulgated by the Commission in the form of instructions to deputy commissioners, provision was made for findings of fact. Report, United States Employees' Compensation Commission, for fiscal year ending June 30, 1930, p. 64. See Howard v. Monahan (D. C.) 33 F.(2d) 220.

Footnote 9 In the District of Columbia, the proceedings are to be instituted in the Supreme Court of the District.

Footnote 10 The United States Employees' Compensation Commission estimates that the number of employees who at times are engaged in employments 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 injuries 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 'nonfatal' cases which caused no loss of time, and 4,067 of such cases in which the duration of disability did 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 compensation 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.

Footnote 11 Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 695, 17 S. Ct. 718; Crane v. Hahlo, 258 U.S. 142, 147, 42 S. Ct. 214; Federal Trade Commission v. Curtis Publishing Co., 260 U.S. 568, 580, 43 S. Ct. 210; Silberschein v. United States, 266 U.S. 221, 225, 45 S. Ct. 69; Virginian Railway Co. v. United States, 272 U.S. 658, 663, 47 S. Ct. 222; Tagg Bros . & Moorhead v. United States, 280 U.S. 420, 442, 50 S. Ct. 220; International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 297, 50 S. Ct. 89; Dohany v. Rogers, 281 U.S. 362, 369, 50 S. Ct. 299, 68 A. L. R. 434; Phillips v. Commissioner, 283 U.S. 589, 600, 51 S. Ct. 608. See, also, Hardware Dealers' Mutual Fire Insurance Co. v. Glidden, , 52 S. Ct. 69, decided November 23, 1931; New York Central R. R. Co. v. White, supra, at pages 194, 207, 208 of 243 U. S., 37 S. Ct. 247; Mountain Timber Co. v. Washington, supra, at page 233 of 343 U. S., 37 S. Ct. 260.

Footnote 12 American Insurance Co. v. Canter, 1 Pet. 511, 546; Keller v. Potomac Electric Power Co., 261 U.S. 428, 442-444, 43 S. Ct. 445; Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693, 700, 47 S. Ct. 284.

Footnote 13 Virginian Railway Co. v. United States, supra; Tagg Bros. & Moorhead v. United States, supra; International Shoe Co. v. Federal Trade Commission, supra; Phillips v. Commissioner, supra; United States v. Ju Toy, 198 U.S. 253, 263, 25 S. Ct. 644; United States v. Babcock, 250 U.S. 328, 331, 39 S. Ct. 464; Burfenning v. Chicago, St. Paul, etc., Rwy. Co., 163 U.S. 321, 323, 16 S. Ct. 1018; Bates & Guild Co. v. Payne, 194 U.S. 106, 109, 24 S. Ct. 595; Houston v. St. Louis Packing Co., 249 U.S. 479, 484, 39 S. Ct. 332; Passavant v. United States, 148 U.S. 214, 219, 13 S. Ct. 572; Silberschein v. United States, 266 U.S. 221, 225, 45 S. Ct. 69.

Footnote 14 As to masters in chancery, see Tilghman v. Proctor, 125 U.S. 136, 149, 150 S., 8 S. Ct. 894; Callaghan v. Myers, 128 U.S. 617, 666, 667 S., 9 S. Ct. 177; Kimberly v. Arms, 129 U.S. 512, 523, 524 S., 9 S. Ct. 355; Davis v. Schwartz, 155 U.S. 631, 636, 15 S. Ct. 237.

As to commissioners in admiralty, see The Cayuga (C. C. A. 6th) 59 F. 483, 488; La Bourgogne (C. C. A. 2d) 144 F. 781, 782, 783; The North Star ( C. C. A. 2d) 151 F. 168, 177; Western Transit Co. v. Davidson S. S. Co. (C. C. A. 6th) 212 F. 696, 701; P. Sanford Ross, Inc., v. Public Service Corporation (C. C. A. 3d) 42 F.(2d) 79, 80.

Footnote 15 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.

Footnote 16 As to the effect of the verdict of the jury in such cases, see The Western States (C. C. A.) 159 F. 354, 358, 359; Sweeting v. The Western States, 210 U.S. 433, 28 S. Ct. 762; The Nyack (C. C. A.) 199 F. 383, 389; 1 Benedict's Admiralty (5th Ed.) p. 305.

Footnote 17 The term 'jurisdictional,' although frequently used, suggests analogies which are not complete when the reference is to administrative officials or bodies. See Interstate Commerce Commission v. Humboldt Steamship Co., 224 U.S. 474, 484, 32 S. Ct. 556. In relation to administrative agencies, the question in a given case is whether it falls within the scope of the authority validly conferred.

Footnote 18 This power is distinct from the authority to regulate interstate or foreign commerce and is not limited to cases arising in that commerce. The Genesee Chief v. Fitzhugh, 12 How. 443, 452; The Commerce (Commercial Transportation Co. v. Fitzhugh) 1 Black, 574, 578, 579; The Belfast, 7 Wall. 624, 640, 641; Ex parte Boyer, 109 U.S. 629, 632, 3 S. Ct. 434; In re Garnett, 141 U.S. 1, 15, 17 S., 11 S. Ct. 840; London Guarantee & Accident Co. v. Industrial Commission, 279 U.S. 109, 124, 49 S. Ct. 296.

Footnote 19 The Belfast, supra; Panama R. R. Co. v. Johnson, supra; The Genesee Chief, supra, at page 459 of 12 How.; 1 Benedict's Admiralty (5th Ed.) 32, p. 47.

Footnote 20 Cleveland Terminal R. R. Co. v. Cleveland Steamship Co., , 28 S. Ct. 414, 13 Ann. Cas. 1215; Atlantic Transport Co. v. Imbrovek, supra, at pages 59, 60 of 234 U. S., 34 S. Ct. 733, 51 L. R. A. (N. S.) 1157; Industrial Commission v. Nordenholt Co ., 259 U.S. 263, 273, 42 S. Ct. 473, 25 A. L. R. 1013; Washington v. Dawson, supra, at pages 227, 235, 264 U. S., 44 S. Ct. 302; Nogueira v. N. Y., N. H. & H. R. Co., 281 U.S. 128, 133, 138 S., 50 S. Ct. 303.

Footnote 21 The Daniel Ball, 10 Wall. 557, 563; United States v. Holt State Bank, 270 U.S. 49, 56, 46 S. Ct. 197; United States v. Utah, 283 U.S. 64, 76, 77 S., 51 S. Ct. 438; Arizona v. California, 283 U.S. 423, 452, 51 S. Ct. 522.

Footnote 22 Industrial 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.

Footnote 23 See Report of United States Employees' Compensation Commission for fiscal year ending June 30, 1931, pp. 108, 109.

Footnote 24 Prentis v. Atlantic Coast Line, 211 U.S. 210, 225, 29 S. Ct. 67; Chicago, Rock Island & Pacific Rwy. Co. v. Cole, 251 U.S. 54, 56, 40 S. Ct. 68; Missouri ex rel. Hurwitz v. North, 271 U.S. 40, 42, 46 S. Ct. 384.

Footnote 25 Supra, note 13.

Footnote 26 See Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., , 52 S. Ct. 183, decided January 4, 1932.

Footnote 27 Freund, 'Administrative Powers Over Persons and Property,' 154, p. 293.

Footnote 28 Id., section 153, pp. 291-293.

Footnote 29 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, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850, an action was brought against the members of a town board of health who had killed a horse in obedience to an order of the 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 defendants. The Supreme Judicial Court sustained exceptions, holding that 'The fact as to the horse having the disease was open to investigation in the present action, and, on the finding that it did not have it, the plaintiff was entitled to a ruling that the defendants had failed to make out their justification.' Id., page 548 of 152 Mass., 26 N. E. 100, 103, 10 L. R. A. 116, 23 Am. St. Rep. 850. See, also, Pearson v. Zehr, 138 Ill. 48, 51, 52, 29 N. E. 854, 32 Am. St. Rep. 113.

Footnote 30 Panama R. R. Co. v. Johnson, supra, at page 390 of 264 U. S., 44 S. Ct. 391; Missouri Pacific R. R. Co. v. Boone, 270 U.S. 466, 471, 472 S., 46 S. Ct. 341; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346, 48 S. Ct. 194; Blodgett v. Holden, 275 U.S. 142, 148, 48 S. Ct. 105; Lucas v. Alexander, 279 U.S. 573, 577, 49 S. Ct. 426, 61 A. L. R. 906.

Footnote 31 Supra, note 10.

Footnote 32 Revenue Act of 1926, 44 Stat. 110: 'Sec. 1003. (a) The Circuit Courts of Appeals and the Court of Appeals of the District of Columbia 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 decision of the board is not in accordance with law, to modify or reverse the decision of the board, with or without remanding the case for a rehearing as justice may require.' 26 USCA 1226.

Footnote 33 This opinion was expressed in regulations promulgated by the Commission, under authority conferred by section 39(a), in the form of instructions to deputy commisioners, 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 commissioners, elaborated December 10, 1927, and May 15, 1928, required that the record of proceedings and findings of fact be prepared, and the proceedings be conducted, in consonance with this view of the law.

Footnote 34 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 (33 USCA 901 note). Pocahontas Fuel Co. v. Monahan, 41 F.(2d) 48, 49 (C. C. A. 1st) affirming 34 F.(2d) 549, 551, 1929 A. M. C. 1336 (D. C. Me.); Joyce v. United States Deputy Commissioner, 33 F.(2d) 218, 219 (D. C. Me.); Jarka Corporation v. Monahan, 48 F.(2d) 283, 284 (D. C. Mass.); Booth v. Monahan, 56 F.(2d) 168 (D. C. Me.); Wilson & Co., Inc., v. Locke, 50 F.(2d) 81, 82 (C. C. A. 2d); Travelers Insurance Co. v. Locke, 56 F.(2d) 443 (D. C. S. D. N. Y.); Calabrese v. Locke, 56 F.(2d) 458 (D. C. S. D. N. Y.); W. J. McCahan Sugar Refining & Molasses Co. v. Norton, 43 F.(2d) 505, 506 (C. C. A. 3d), affirming 34 F.(2d) 499 (D. C. E. D. Pa.); Independent Pier Co. v. Norton, 54 F.(2d) 734 (C. C. A. 3d), decided December 26, 1931; Baltimore & Carolina S. S. Co. v. Norton, 40 F.(2d) 271, 272 (D. C. E. D. Pa.); Merchants' & Miners' Transp. Co. v. Norton, 32 F.(2d) 513, 515 (D. C. E. D. Pa.); Jarka Corporation v. Norton, 56 F.(2d) 287 (D. C. E. D. Pa.); Frank Marra Co. v. Norton, 56 F. (2d) 246 (D. C. E. D. Pa.); Wheeling Corrugating Co. v. McManigal, 41 F.(2d) 593, 594, 595 (C. C. A. 4th); Obrecht-Lynch Corporation v. Clark, 30 F.(2d) 144, 146 (D. C. Md.); Keyway Stevedoring Co. v. Clark, 43 F.(2d) 983 (D. C. Md.); Kranski v. Atlantic Coast Shipping Co., 56 F.(2d) 166 (D. C. Md.); Chesapeake Ship Ceiling Co. v. Clark (D. C. Md.), decided May 22, 1930 (oral opinion); Goble v. Clark, 56 F.(2d) 170 (D. C. Md.); Michigan Transit Corporation v. Brown, 56 F.(2d) 200 (D. C. W. D. Mich.); Northwestern Stevedoring Co. v. Marshall, 41 F.( 2d) 28, 29 (C. C. A. 9th); Gunther v. United States Employees' Compensation Commission, 41 F.(2d) 151, 153 (C. C. A. 9th); Grays Harbor Stevedore Co. v. Marshall, 36 F.(2d) 814, 815 (D. C. W. D. Wash.); Zurich General Accident & Liability Ins. Co. v. Marshall, 42 F.(2d) 1010, 1011 (D. C. W. D. Wash.); Tood Dry Docks, Inc., v. Marshall, 49 F.(2d) 621, 623 (D. C. W. D. Wash.); Grays Harbor Stevedore Co. v. Marshall, 36 F.(2d) 814 (D. C. W. D. Wash.), decided October 16, 1929; Rothschild & Co. v. Marshall, 56 F.(2d) 415 (D. C. W. D. Wash.), reversed on other grounds 44 F.(2d) 546 ( C. C. A. 9th); Lea Mathew Shipping Corporation v. Marshall, 56 F.(2d) 860 ( D. C. W. D. Wash.); Griffiths & Sprague Stevedoring Co. v. Marshall, 56 F.( 2d) 665 (D. C. W. D. Wash.); W. R. Grace & Co. v. Marshall, 56 F.(2d) 441 ( D. C. W. D. Wash.); Nelson v. Marshall, 56 F.(2d) 654 (D. C. W. D. Wash.); Grant v. Marshall, 56 F. (2d) 654 (D. C. W. D. Wash.); Zurich General Accident & Liability Co. v. Marshall, 56 F.(2d) 652 (D. C. W. D. Wash.); Ocean Accident & Guarantee Corporation v. Solberg, 56 F.(2d) 607 (D. C. W. D. Wash.). Compare Lake Washington Shipyards v. Brueggeman, 56 F.(2d) 655 ( D. C. W. D. Wash.); New Amsterdam Casualty Co. v. Hoage, 46 F.(2d) 837 ( App. D. C.); Hoage v. Murch Bros. Const. Co., 50 F.(2d) 983, 984 (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 (S. D. Tex.); Id., 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.).

Footnote 35 The Court has been 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. Industrial Accident Commission, 199 Cal. 577, 580, 250 P. 570; York Junction Transfer & Storage Co. v. Industrial Accident Commissioners, 202 Cal. 517, 521, 261 P. 704; Index Mines Corporation v. Industrial Commission, 82 Colo. 272, 275, 259 P. 1036; Ocean Accident & Guarantee Corp. v. Wilson, 36 Ga. App. 784, 138 S. E. 246; Taylor v. Blackwell Lumber Co., 37 Idaho, 707, 721, 218 P. 356; Cinofsky v. Industrial Commission, 290 Ill. 521, 525 125 N. E. 286; Franklin Coal Co. v. Industrial 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, Ann. Cas. 1918B, 703; Federal Mining & Smelting Co. v. Thomas, 99 Okl. 24, 26, 225 P. 967; Oklahoma Pipe Line Co. v. Lindsey, 113 Okl. 296, 298, 241 P. 1092; Belmonte v. Connor, 263 Pa. 470, 472, 106 A. 787.

Footnote 36 (a) Interstate Commerce Commission: Act of June 18, 1910, c. 309, 1, 36 Stat. 539; see Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U.S. 88, 92, 33 S. Ct. 185; United States v. Louisville & Nashville R. R. Co., 235 U.S. 314, 320, 321 S., 35 S. Ct. 113; Louisville & Nashville R. R. Co. v. United States, 245 U.S. 463, 466, 38 S. Ct. 141, 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 (49 USCA 19a). See Tagg Bros. & Moorhead v. United States, , 444n. 50 S. Ct. 220.

(b) Federal Trade Commission: Act of September 26, 1914, c. 311, 5, 38 Stat. 717, 719, 720 (15 USCA 45); see Federal Trade Commission v. Curtis Publishing Co., 260 U.S. 568, 579, 580 S., 43 S. Ct. 210; Federal Trade Commission v. Pacific States Paper Trade Ass'n, 273 U.S. 52, 63, 47 S. Ct. 255; Arkansas Wholesale Grocers' Ass'n v. Federal Trade Commission (C. C. A.) 18 F.(2d) 866, 870, 871; Gregory Hankin, 'Conclusiveness of the Federal Trade Commission's Findings as to Facts,' 23 Mich. L. Rev. 233, 262-267; Act of October 15, 1914, c. 323, 11, 38 Stat. 730, 735, 15 USCA 21 (applicable also in appropriate cases to Interstate Commerce Commission and Federal Reserve Board); see Federal Trade Commission v. Curtis Publishing Co., supra; International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 297, 50 S. Ct. 89.

(c) Federal Power Commission: Act of June 10, 1920, c. 285, 20, 41 Stat. 1063, 1074 (16 USCA 813).

(d) United States Shipping Board: Act of September 7, 1916, c. 451, 29, 31, 39 Stat. 728, 737, 738 (46 USCA 828, 830); see Isthmian Steamship Co. v. United States (S. D. N. Y.) 53 F.(2d) 251, decided December 7, 1931; compare United States Nav. Co. v. Cunard S. S. Co., , 52 S. Ct. 247, decided February 15, 1932.

(e) Secretary of Agriculture: Act of August 15, 1921, c. 64, 315, 316, 42 Stat. 159, 168 (7 USCA 216, 217); see Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 443, 444 S., 50 S. Ct. 220;, Stafford v. Wallace, 258 U.S. 495, 512, 42 S. Ct. 397, 23 A. L. R. 229; Act of August 15, 1921, c. 64, 204, 42 Stat. 159, 162 (7 USCA 194); Act of June 10, 1930, c. 436, 10, 11, 46 Stat. 531, 535 (7 USCA 560, 561).

(f) Board of Tax Appeals: Act of February 26, 1926, c. 27, 1003(a), 44, Stat. 9, 110(26 USCA 1926, c. 27, 1003(a), 44 Stat. 9, 110 (26 USCA 589, 600, 51 S. Ct. 608.

(g) Grain Futures Commission: Act of September 21, 1922, c. 369, 6( b), 42 Stat. 998, 1002 (7 USCA 9, 10, 15).

(h) District of Columbia Rent Commission: Act of October 22, 1919, c. 80, Title 2, 108, 41 Stat. 297, 301; see Block v. Hirsh, , 158 41 S. Ct. 458, 16 A. L. R. 165; Killgore v. Zinkhan, 51 App. D. C. 60, 274, F. 140, 142 (continued on p. 71).

In instances in which Congress intended to permit the introduction of additional evidence in the District Court, it has so provided in express terms. See, e. g., Act of February 18, 1922, c. 57, 2, 42 Stat. 388, 389 ( 7 USCA 292). 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 (46 USCA 829).

Footnote 37 Compare Freund, 'Administrative Powers Over Persons and Property,' p. 279.

Footnote 38 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, sections 22, 24, that 'the decision of the deputy commissioner shall be final as to all questions of fact and except as provided in section 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 subject, 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 examined 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 the Senate bill likewise enacted administrative finality upon questions of fact. Id., pt. 2, p. 200. The same statement was made in the Senate hearings. Id., pt. 1, pp. 53, 66. The bill was reported to the House as having been amended to 'conform substantially' to the 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 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 Workmen'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 35, supra.

Footnote 39 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 36, supra.

Footnote 40 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 Commerce Commission v. Illinois Central R. R. Co., 215 U.S. 452, 470, 30 S. Ct. 155. Compare Vanfleet, 'Collateral Attack on Judicial Proceedings,' 2, 3.

Footnote 41 Certiorari is the historic writ for determining whether the action of an inferior tribunal has been taken within its jurisdiction; and it has sometimes been held that the writ lies only to determine this question. Compare Jackson v. People, 9 Mich. 111, 77 Am. Dec. 491. But, although there is considerable divergence is the practice of the various states as to the scope of the review, the proceeding, apart from extraordinary statutory provisions, is universally upon the record and the evidence before the inferior tribunal, and not a trial de novo. Fore v. Fore, 44 Ala. 478, 484; City of Los Angeles v. Young, 118 Cal. 295, 298, 50 P. 534, 62 Am. St. Rep. 234; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 185, 186, 149 P. 35; Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 128, L. R. A. 1916E, 329, Ann. Cas. 1917D, 1; Tiedt v. Carstensen, 61 Iowa, 334, 336, 16 N. W. 214; Lord v. County Commissioners, 105 Me. 556, 561, 75 A. 126, 18 Ann. Cas. 665; Jackson v. People, 9 Mich. 111, 119, 120, 77 Am. Dec. 491; Wait v. Krewson, 59 N. J. Law, 71, 75, 35 A. 742; Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 641, 642, 150 N. W. 998. It was so at common law. See Freund, 'Administrative Powers Over Persons and Property,' pp. 267-269.

Footnote 42 See the statutes and cases cited in note 5, supra. Similar decisions have been repeatedly made, under the Fourteenth Amendment, in cases coming from the state courts. This court has recently decided that a state Workmen's Compensation Act may validly provide for judicial review upon matters of law only. Dahlstrom Metallic Door Co. v. Industrial Board, 284 U.S. 594, 52 S. Ct. 202, 76 L. Ed. -. See, also, New York Central R. R. Co. v. White, 243 U.S. 188, 207, 208 S., 37 S. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. In Missouri ex rel. Hurwitz v. North, 271 U.S. 40, 42, 46 S. Ct. 384, 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, subject only to review in the courts upon certiorari. (continued on p. 78)

In Washington ex rel. Oregon Railroad & Navigation Co. v. Fairchild, 224 U.S. 510, 527, 32 S. Ct. 535, 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, 35 S. Ct. 214; New York ex rel. New York & Queens Gas Co. v. McCall, 245 U.S. 345, 348, 349 S., 38 S. Ct. 122; Napa Valley Electric Co. v. Railroad Commission, 251 U.S. 366, 370, 40 S. Ct. 174; Northern Pacific Ry. Co. v. Department of Public Works, 268 U.S. 39, 42, 45 S. Ct 412. In Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 695, 17 S. Ct. 718, it was held that the findings of fact by commissioners in assessing damages in condemnation proceedings 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, 42 S. Ct. 214; Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co., , 52 S. Ct. 69. Compare Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 451, 452 S., 36 S. Ct. 637.

Footnote 43 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, 1046, 1053, 1054, 1069 et seq.

Footnote 44 Admiralty Rule 46, 254 U.S. 698 (28 USCA 723). Subsequent to 1842, when the procedure in admiralty became subject to rules promulgated by this Court, and prior to 1921, no rule specifically required that evidence be taken orally in open court, and the practice in some districts appears to have been to take proofs by a commission. Compare Admiralty Rules 44, 46, 210 U.S. 558; The Guy C. Goss (D. C.) 53 F. 826, 827; The Wavelet (D. C.) 25 F. 733, 734. See, also, The Sun (D. C.) 271 F. 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 (C. C. A.) 48 F.(2d) 122; Sorenson & Co. v. Liverpool, Brazil & River Plate Steam Nav. Co. (D. C.) 47 F.(2d) 332. Compare The City of Washington, , 39; Los Angeles Brush Manufacturing Corporation v. James, 272 U.S. 701, 47 S. Ct. 286. The commissioner's findings of fact are not disturbed unless clearly erroneous. The La Bourgogne (C. C. A.) 144 F. 781, 783, affirmed 210 U.S. 95, 28 S. Ct. 664; Anderson v. Alaska S. S. Co. (C. C. A.) 22 F.(2d) 532, 535.

Footnote 45 See Admiralty Rule 45, 254 U.S. 698 (28 USCA 723); Supreme Court Rule 15, 275 U.S. 607 (28 USCA 354).

Footnote 46 The decision of the District Court, acquiesced in by the Circuit Court of Appeals and this Court, that the remedy under section 21(b) of the Longshoreman's Act is in admiralty, seems to me unfounded. The provision in that section for suspending or setting aside a compensation 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. R. Co. v. Johnson, 264 U.S. 375, 385, 44 S. Ct. 391; or in the state courts, Engel v. Davenport, 271 U.S. 33, 37, 46 S. Ct. 410. See, also, Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 384, 38 S. Ct. 501. No constitutional objection can exist, therefore, to giving effect to the remedy in equity provided in this Act.

Footnote 47 The opinion of the Court suggests that, upon similar reasoning, the issue whether the injury occurred on navigable waters must likewise 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 Admiralty' (5th Ed.) 25. Compare Soper v. Hammond Lumber Co. (D. C.) 4 F.(2d) 872; State Industrial Commission v. Nordenholt Corporation, , 42 S. Ct. 473, 25 A. L. R. 1013. 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, 'Workmen's Compensation and the Maritime Law,' 38 Yale L. J. 472, 500.

Footnote 48 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 liability without fault. Compare St. Louis & San Francisco Ry. Co. v. Mathews, 165 U.S. 1, 17 S. Ct. 243; Chicago, Rock Island & Pacific Ry. Co. v. Zernecke, 183 U.S. 582, 22 S. Ct. 229; St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U.S. 281, 28 S. Ct. 616; New York Central R. R. Co. v. White, 243 U.S. 188, 37 S. Ct. 247, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. Congress may provide that a carrier shall be liable for loss or damage to goods occurring beyond its own lines. Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U.S. 186, 203, 31 S. Ct. 164, 169, 31 L. R. A. ( N. S.) 7. See, also, Atlantic Coast Line R. R. Co. v. Glenn, 239 U.S. 388, 393, 36 S. Ct. 154. '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 injuries 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 compensation acts have been sustained does not require insistence upon a technical master and servant relation. Compare Ward & Gow v. Krinsky, , 42 S. Ct. 529, 28 A. L. R. 1207. See, also, Jeremiah Smith, 'Sequel to Workmen'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 contractor or his servant. E. g., Ellis v. Sheffeld Co., 2 E. & B. 767; Pickard v. Smith, 10 C. B. (N. S.) 470; Doll v. Ribetti (C. C. A.) 203 F. 593.

Footnote 49 See the analysis and criticism in William O. Douglas, 'Vicarious Liability and Administration of Risk,' 38 Yale L. J. 584, 594-604. Compare O. W. Holmes, 'Agency,' 5 Harv. L. Rev. 1, 14-16.

Footnote 50 See Baty, 'Vicarious Liability,' passim; Francis Bowes Sayre, 'Criminal Responsibility for Acts of Another,' 43 Harv. L. Rev. 689, 691- 694; O. 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.'

Footnote 51 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 provision in the New York Workmen's Compensation Act (Consol. Laws, c. 67), 56, is illustrative: 'A contractor, the subject of whose contract is, involves or includes a hazardous employment, who subcontracts all or any part of such contract shall be liable for and shall pay compensation to any employee injured . ...' In 1927, in recommending the extension 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 who lets part of building work in precisely the same way. The practical 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 solution of the same problem.' Annual Report of the Industrial Commissioner (1927) pp. 4, 5.

Footnote 52 See, e. g., Industrial Commission v. Continental Investment Co., 78 Colo. 399, 401, 402, 242 P. 49; Palumbo v. George A. Fuller Co., 99 Conn. 355, 358, 122 A. 63; Fisk v. Bonner Tie Co., 40 Idaho, 304, 308, 232 P. 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 Corporation, 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. (Mo. App.) 35 S.W.(2d) 911, 912; Sherlock v. Sherlock, 112 Neb. 797, 799, 201 N. W. 645; O'Banner v. Pendlebury, 107 N. J. Law, 245, 247, 153 A. 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. State Industrial Commission, 121 Okl. 211, 212, 249 P. 933; Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780; Murray v. Wasatch Grading Co., 73 Utah, 430, 436, 439, 274 P. 940; Threshermen's Nat. Ins. Co. v. Industrial Commission, 201 Wis. 303, 306, 230 N. W. 67; Wisinger v. White Oil Corporation (C. C. A.) 24 F.(2d) 101, 102. But compare Flickenger v. Industrial Accident Commission, 181 Cal. 425, 432, 433, 184 P. 851, 19 A. L. R. 1150. Liability to pay compensation obtains in England under circumstances in which no relation of employment exists. See Mulrooney v. Todd (1909) 1 K. B. 165; Marks v. Carne (1909) 2 K. B. 516.

Footnote 53 Turner 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. U. S. ex rel. Murray, 9 Wall. 274, 280; Home Life Insurance Co. v. Dunn, 19 Wall. 214, 226; Stevenson v. Fain, 195 U.S. 165, 167, 25 S. Ct. 6; Kline v. Burke Construction Co., 260 U.S. 226, 234, 43 S. Ct. 79, 24 A. L. R. 1077. It was not until the Act of March 3, 1875, c. 137, 18 Stat. 470, that Congress extended the jurisdiction of the circuit 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 occupied 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 arising under the Federal Employers' Liability Act (45 USCA 51-59) are triable in either the state courts or the federal District Courts. See Second Employers' Liability Cases, 223 U.S. 1, 56, 57 S.-59, 32 S. Ct. 169, 38 L. R. A. (N. S.) 44; Douglas v. New York, New Haven & Hartford R. R. Co., , 49 S. Ct. 355. So, also, cases under section 20 of the Seamen's Act, as amended by the Merchant Marine Act of 1920, 33 (46 USCA 688). Engel v. Davenport, 271 U.S. 33, 37, 46 S. Ct. 410; Panama R. R. Co. v. Vasquez, 271 U.S. 557, 562, 46 S. Ct. 596.

Footnote 54 See decisions and statutes collected in note 36, supra. So far as concerns the question here presented, it is immaterial whether the controversy is wholly between private parties or is between the government and a citizen. The fact that litigation under the Longshoremen's Act is, in substance, between private parties (even though under section 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 decided. The tribunals in note 36, supra, listed deal with matters outside the scope of the doctrine recently examined in Ex parte Bakelite Corporation, , 49 S. Ct. 411, 413. 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 determination and yet are susceptible of it,' the mode of determining which 'is completely within congressional control.' Id. at page 451 of 279 U. S., 49 S. Ct. 411, 413. The suggestion that due process does not require judicial process in any controversy to which the government is a party would involve a revision of historic conceptions of the nature of the federal judicial system. That all questions arising in the administration of the Interstate Commerce Act, for example, or between a taxpayer and the government under the tax laws, could be committed by Congress 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, 'Federal Legislative Courts,' 43 Harv. L. Rev. 894, 914, 915.

Footnote 55 Compare Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850, and Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 Am. St. Rep. 113, cited by the Court. These cases involved summary administrative action, and the complaining individuals had been given no opportunity to be heard on the question 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 Supremacy of Law,' pp. 260, 261; E. F. Albertsworth, 'Judicial Review 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, 23 L. R. A. (N. S.) 1188. Compare North American Cold Storage Co. v. Chicago, 211 U.S. 306, 316, 317 S., 29 S. Ct. 101, 15 Ann. Cas. 276. In cases arising under the Workmen's Compensation Laws, where formal hearing is available, the Massachusetts and Illinois courts, in common with many others, have held the administrative 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 N. E. 811.

Footnote 56 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 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 Re Grimley, , 11 S. Ct. 54; in Re Morrissey, 137 U.S. 157, 11 S. Ct. 57; Noble v. Union River Logging Railroad, 147 U.S. 165, 13 S. Ct. 271; Smith v. Hitchcock, 226 U.S. 53, 33 S. Ct. 6; and Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S. Ct. 595, all cited in note 57, infra, the Court recognized the conclusiveness of many decisions of law by the tribunals in question. Tribunals of this character are of course empowered, under ordinary circumstances, to make conclusive determinations of fact. See e. g., Passavant v. United States, 148 U.S. 214, 219, 13 S. Ct. 572; Medbury v. United States, 173 U.S. 492, 497, 498 S., 19 S. Ct. 503; Silberschein v. United States, 266 U.S. 221, 225, 45 S. Ct. 69; Quon Quon Roy v. Johnson, 273 U.S. 352, 358, 47 S. Ct. 346.

Footnote 57 (a) In Ng Fung Ho v. White, , 42 S. Ct. 492, the statute authorized the deportation only of aliens, without provision for judicial review of the executive order. Act of February 5, 1917, c. 29, 19, 39 Stat. 874 (8 USCA 155), 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 exclusively upon the record made in the executive department; nor as to the scope of review which might have been permissible upon such record.

(b) In re Grimley, 137 U.S. 147, 11 S. Ct. 54, and In re Morrissey, 137 U.S. 157, 11 S. Ct. 57, deal with the action of military tribunals. Military tribunals from a system of courts separate from the civil courts and created by virtue of an independent grant of power in the Constitution. Article 1, 8, clauses 14, 16. They have authority to determine finally any case over which they have jurisdiction; 'and their proceedings ... are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject-matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced.' Carter v. Roberts, 177 U.S. 496, 498 20 S. Ct. 713; Grafton v. United States, 206 U.S. 333, 347, 27 S. Ct. 749, 11 Ann. Cas. 640. As Congress did not provide any method for review by the courts of the decision of military tribunals, all questions of law concerning military jurisdiction are open to independent determination 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 Railroad, 147 U.S. 165, 174, 13 S. Ct. 271, 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 being no method of judicial review prescribed by statute. Compare St. Louis Smelting Co. v. Kemp, , 641.

(d) In Smith v. Hitchcock, 226 U.S. 53, 58, 33 S. Ct. 6, as in Bates & Guild Co. v. Payne, 194 U.S. 106, 109, 110 S., 24 S. Ct. 595, and American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 109, 23 S. Ct. 33, 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.

Footnote 58 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. Rev. 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 Valley Water Company Case and the Valuation of Railroads,' 40 Harv. L. Rev. 1033; Beutel, 'Valuation as a 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; Freund, '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 commentator, however, appears to have understood the decision as recognizing in any manner a right to trial de novo in court upon confiscation issues.

Footnote 59 It is cause for regret that the Court in determining this controversy should have declared, obiter, that in matters of state public utility regulation involving administrative action of a special character, and raising questions under a different constitutional provision, a mode 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.

Footnote 60 But see Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U.S. 88, 92, 33 S. Ct. 185. The statement by Mr. Justice Jamar there, however, went no further than to indicate that in some circumstances 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, Interstate Commerce Commission v. Northern Pacific Ry. Co., 216 U.S. 538, 544, 30 S. Ct. 417; Manufacturers' Ry. Co. v. United States, , 488-490, 38 S. Ct. 383.

Footnote 61 See Dickinson, 'Administrative Justice and the Supremacy of Law,' p. 310.

Footnote 62 Out of the 30,383 nonfatal 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 noncompensated cases, formal claims were filed by the employee in only 1, 025 instances. See, also, Report of the Compensation Commission, 1930, pp. 68-70.

Footnote 63 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 opinion of the District Court on May 27, 1929.

Footnote 64 How serious these consequences will be is a question of speculation; but it is plain that they will be aggravated by the inherent uncertainty in the scope of the doctrine announced. The determination of what facts are 'jurisdictional' or 'fundamental' is calculated 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 not acting as an employee when 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.