Brief for the United States — Williams v. United States

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INDEX

Page

Opinion below _ . - - - . ‘ 1

Jurisdiction 1

Questions presented ‘ 2

Jonstitutional provisions involved ‘ 2

Statement 2

Summary of Argument 3

Argument 4

Conclusion ; 10

Appendix : . 12-13

CITATIONS

Cases:

Bakelite Corporation, Ex parte, 279 U.S. 488__.. 4, 5,8, 10

Crowell v. Benson, 285 U.S. 22 . ’ 7

Federal Radio Commission vy. General Electric Co., 281 U.S.

464 - 9

Gordon v. United States, 2 Wallace, 561, 117 U.S. 697__. 9

Hayburn’s Case, 2 Dallas, 409 : 9

Keller v. Potomac Electric Power Co., 261 U.S. 428 9

Miles v. Graham, 268 U.S. 501 : 8

Montgomery v. United States, 49 C.Cls. 574__-- ce 9

Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 9

Sanborn, In re, 148 U.S. 222 9

United States v. Ferreira, 13 Howard, 40. - if)

Widmayer v. United States, 42 C.Cls. 519. 9

Constitutional provisions:

Article I, Seetion 8. 2 12

Article IIT:

Section 1 . Nes 12

Section 2 - 13

Statutes:

Act of February 27, 1801, ¢. 15, Sees. 3, 11, 12, 2 Stat. 103,

105, 107 ; 10

Act of March 3, 1839, c¢. 88, Secs. 11, 13, 5 Stat. 353,

354-355. ......... ; ae Ppa oe ae 9

Act of March 3, 1887, ¢. 359, 24 Stat. 505, 507 9

Act of February 17, 1909, ce. 134, 35 Stat. 622. a 10

Act of June 25, 1910, ¢. 409, 36 Stat. 837 9

Act of June 30, 1932, ¢. 314, 47 Stat. 382, 399-403. __- 3

District of Columbia Code, Sees. 3, 42, 60, 221. ; 10

Judicial Code, See. 151_- oaa eke aan 9

168499—33 )

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Inthe Supreme Court of the United States

OcTOBER TERM, 1932

No. 728

THOMAS S. WILLIAMS

v.

THE UNITED STATES

No. 729

DANIEL W. O’ DONOGHUE

Uv.

THE UNITED STATES

No. 730

WituiaAmM Hirz

Vv,

THE UNITED STATES

ON CERTIFICATES FROM THE COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

OPINION BELOW

The Court of Claims has rendered no opinion.

JURISDICTION

The certificates of the Court of Claims were filed

February 24, 1933. The jurisdiction of this Court

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rests on Section 3(a) of the Act of February 13,

1925.

QUESTIONS PRESENTED

The questions certified in the three cases may be

combined as follows:

1, Does Section 1, Article IL], of the Constitu-

tion of the United States apply to the Court of

Claims and to the Supreme Court and Court of Ap-

peals of the District of Columbia and forbid a re-

duction of the compensation of the Judges thereof

during their continuance in office ?

2. Does the provision of Section 2, Article ITI,

of the Constitution, wherein it is stated that ‘*The

judicial Power shall extend * * * to Contro-

versies to which the United States shall be a

party’’, apply to the Court of Claims, and does this

provision authorize the creation and establishment

of that Court?

3. Can the compensation of a Judge of the Court

of Claims or of the Supreme Court or Court of

Appeals of the District of Columbia be lawfully

diminished during his continuance in office ?

CONSTITUTIONAL PROVISIONS INVOLVED

The provisions of the Constitution involved in

these cases are set forth in the Appendix (infra,

pp. 12-13).

STATEMENT

The facts stated in the certificates may be sum-

marized as follows (No. 728, R. 1-4; No. 729, R. 1-3;

No. 730, R. 1-3):

3

The plaintiffs are a Judge of the Court of Claims,

a Justice of the Supreme Court of the District of

Columbia, and a Justice of the Court of Appeals of

the District of Columbia, respectively. By the Act

of June 30, 1932, ¢. 314, 47 Stat. 382, 399-403, the

salaries of certain officers and employes of the

United States were reduced. By a ruling of the

Comptroller General this statute was held applica-

ble to the Judges of the Court of Claims, and to

the Justices of the Supreme Court and the Court

of Appeals of the Distriet of Columbia. Pursuant

to this ruling, the plaintiffs have since July 1, 1932,

been paid at the reduced rate provided in che

statute.

The plaintiffs brought separate suits in the Court

of Claims for the difference between the amount

which they received at the time the respective suits

were brought and the amount each would have re-

ceived during that period had his compensation

not been reduced, The defendant demurred to each

petition and the Court of Claims thereupon certi-

fied to this Court the questions which have been

stated above.

SUMMARY OF ARGUMENT

The plaintiffs contend that they are Judges of

constitutional courts created by Congress under

the provisions of Section 1 of Article IIT of the

Constitution and that accordingly their salaries

may not be diminished during their continuanee in

office. Obviously the constitutional provisions in

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question must be construed in the light of their

history and of the development of our institutions

and not without reference to the distinction which

has so clearly been drawn between constitutional

and legislative courts.

This Court’s decision in Ex parte Bakelite Cor-

poration, 279 U.S. 488, is a direct and conclusive

authority against the contention of the plaintiffs.

In that ease both the Court of Claims and the courts

of the District of Columbia were considered and

expressly held to be legislative courts. Even if

that decision is to be regarded as decisive only

with respect to the Court of Customs Appeals with

which it was primarily concerned, the reasoning of

the opinion leaves no room for the contention made

by the plaintiffs here.

It is, of course, well recognized that a consti-

tutional court may not be empowered to determine

legislative or administrative questions. Congress

has repeatedly conferred such powers upon the

Court of Claims, and their exercise by that court

has not been questioned. Similar powers have

been vested in and exercised without question by

the courts of the District of Columbia.

ARGUMENT

The contention of the Judges: who instituted

these suits before the Court of Claims is that they

are Judges of constitutional courts created by Con-

gress under the provisions of Section 1 of Article

III of the Constitution of the United States, and

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that accordingly their salaries may not be dimin-

ished during their continuance in office.

Section 1 of Article IIIT of the Constitution pro-

vides:

The judicial Power of the United States

shall be vested in one supreme Court, and

in such inferior Courts as the Congress may

from time to time ordain and establish. The

Judges, both of the supreme and inferior

Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times, re-

ceive for their Services, a Compensation,

which shall not be diminished during their

Continuance in Office.

Obviously these provisions of the Constitution

are not to be construed without reference to the

history and development of our institutions, and

to the distinction which in the application of these

provisions has been so clearly drawn between con-

stitutional and legislative courts.

In Ex parte Bakelite Corporation, 279 U.S. 438,

this Court had occasion to interpret Section 1 of

Article I1I of the Constitution in the light of its

history and its application to courts of the United

States. The constitutional status of the Court of

Claims, and of the courts established by Congress

for the District of Columbia, was exhaustively ex-

amined, and it was concluded that all of these courts

were legislative courts, not constituted under Sec-

tion 1 of Article IIf of the Constitution, and there-

fore not subject to the limitations of that section.

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True, the ultimate decision in the Bakelite case was

that the Court of Customs Appeals is a legislative

court. But in reaching that conclusion this Court

found it necessary in its interpretation of Section

1 of Article IIL to trace the history of its appli-

cation in the development of our judicial institu-

tions and of the distinction repeatedly recognized

‘in the decisions of this Court between constitutional

courts and legislative courts.

It was necessary to that decision to analyize the

previous decisions of this Court in order to deter-

mine the characteristics of a legislative court. As

the result of careful and exhaustive analysis, legis-

lative courts were defined as: (1) courts created by

Congress by virtue of its power ‘*to exercise exclu-

sive legislation over the District made the seat of

the Government of the United States”*; (2) courts

created by virtue of the power of Congress to make

all needful rules and regulations respecting the ter-

ritory belonging to the United States; and (3)

courts created as special tribunals to examine and

determine various matters arising between the

Goverment and others, which from their nature

do not require judicial determination and vet are

susceptible of it.

It was necessary, in formulating this test and

analysis of the constitutional power of Congress to

establish legislative courts, to consider the courts

whieh Congress has thus established, and the deci-

sions of this Court characterizing them as legisla-

—

tive courts, including the Court of Claims and the

courts provided by Congress for the District of Co-

lumbia. The decision of the Court was rested upon

this analysis, and it was held that the courts pro-

vided by Congress for the District of Columbia,

created by virtue of the power of Congress to legis-

late for the District, were legislative courts, and

that the Court of Claims, created and maintained as

a special tribunal to examine and determine claims

for money against the United States, was also a

legislative court.

If we are right in regarding the conclusion of

this Court in the Bakelite case with respect to the

constitutional status of the Court of Claims and

of the courts established by Congress in the Dis-

trict of Columbia as necessary to the decision of

that case. then we see no escape from the conclusion

that that decision is controlling here upon the prin-

ciple of stare decisis.

The principles declared in the Bakelite decision

were reiterated and applied by this Court in

Crowell v. Benson, 285 US. 22, 50:

Thus the Congress, in exercising the pow-

ers confided to it, may establish ‘‘legis-

lative’? eourts (as distinguished from ‘‘con-

stitutional courts in which the judicial

power conferred by the Constitution can be

deposited’’) 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 matters,

arising between the government and others,

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which from their nature do not require ju-

dicial determination and yet are susceptible

of it”. But ‘‘the mode of determining mat-

ters of this class is completely within con-

gressional control. Congress may reserve to

itself the power to decide, may delegate that

power to executive officers, or may commit

it to Judicial tribunals’’. Er parte Bakelite

Corp., 279 U.S. 488, 451.

Both the majority and minority opinions in the

Crowell case accept the Bakelite case, supra, as

authoritative in its analvsis of the distinctions be-

tween legislative and constitutional courts. See

285 U.S. at 57-58, 86-91.

In Miles v. Graham, 268 U.S. 501, this Court’s

attention was not drawn to the question whether

the Court of Claims is a statutory court or a con-

stitutional court. That question was neither pre-

sented in the briefs or argument nor considered in

the opinion, and accordingly this Court declared in

Ex parte Bakelite Corp., supra, that the decision

in Miles v. Grahem could not be taken as disturbing

the earlier rulings of this Court or attributing to

the Court of Claims any status other than that of a

legislative court. Ex parté Bakelite Corp., 279

U.S. 438, 455. ae

Accordingly, we believe that conclusion must

follow from the decision and the careful analysis

of prior decisions of this Court in Kx Parte Bake-

lite Corp., and trom the reaffirmation of the prin-

ciples upon which those decisions rest in Crowell v.

Benson, that the Court of Claims is a legislative

9

court created by Congress as a special tribunal to

examine and determine claims against the United

States, and that the Supreme Court and the Court

of Appeals of the District of Columbia, created by

virtue of the power of Congress ‘to exercise exclu-

sive legislation over the District ’’, are also legisla-

tive courts. This conclusion is buttressed by the

fact that Congress and this Court have so regarded

and treated them.

It is. of course, well recognized that a constitu-

tional court may not be empowered to determine

legislative or administrative questions.’ Congress

has repeatedly conferred such powers Upon the

Court of Claims, and their exercise by that court

has not been questioned.” Similar powers have

been vested in and exercised without question by

the Supreme Court and the Court of Appeals of the

Distriet of Columbia,’ and the tenure of judicial

1 Hayburn’s Case, 2 Dallas 409; United States v. Ferreira,

13 Howard 40; Gordon v. United States, 2 Wallace 561, 117

US. 697; Federal Radio Commission V. General Electric Co.,

281 U.S. 464.

’ See Sections 12 and 14 of the Act of March 3, 1887,

. 359. 24 Stat. 505, 507; Act of June 25, 1910, c. 409, 36 Stat.

837: Judicial Code, Sec. 151; /u re Sanborn, 148 U.S. 222;

Widmayer v. United States, 42 C.Cls. 519; Montgomery Vv.

United States, 49 C.Cls. 574.

’ Keller v. Potomac Electric Power Co., 261 U.S. 428;

Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693;

Federal Radio Commission v. General Electric Co., 281 U.S.

464. The advisory power of the District of Columbia courts

in patent cases began as early as the Act of March 3, 1839,

ce. 88. secs. 11, 13, 5 Stat. 353, 354-355.

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office in the inferior courts of the District has been

limited by Congress to stated terms.‘

This Court has thus repeatedly recognized that

the power of Congress, in legislating for the courts

of the District of Columbia and for the Court of

Claims is free of the limitations imposed by Article

IIL of the Constitution. This does not mean that

the tribunals in question are not courts, or that

they do not exercise judicial power. The exercise

of judicial power is common to both legislative and

coustitutional courts and determines the status of

neither. As this Court said in Ex parte Bakelite

Corporation, 279 U.S. 438, 449:

it long has been settled that Article LIT does

not express the full authority of Congress to

create courts, and that other Articles invest

Congress with powers in the exertion of

which it may create inferior courts * * *,

oer ee)

CONCLUSION

Conclusion follows that Section 1 of Article

ITI of the Constitution does not apply to the Court

of Claims nor to the courts of the District of Colum-

bia so as to forbid a reduction of the compensation

of the Judges thereof during their continuance in

office, that the provision of Section 2 of Artiele IIT

of the Constitution does not apply to the Court of

Claims, and that the compensation of Judges of the

*Act of February 27, 1801, ¢. 15, sees. 3, 11, 12, 2 Stat.

103, 105, 107; D.C. Code, sees. 3. 42, 60, 221; Act of Feb-

ruary 17, 1909, ¢. 134, 35 Stat. 623.

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Court of Claims and of the courts of the District of

Columbia may be lawfully diminished during their

continuance in office. ;

In No. 728 the first two questions certified should

be answered in the negative and the third in the

affirmative. In Nos. 729 and 730 the first ques-

tion certified should be answered in the negative

and the second in the affirmative.

Respectfully submitted.

~ Tuomas D. THACHER,

Solicitor General.

~ Winuiam W. Scort,

~Rozert P. REEDER,

~ Erwin N. GRISWOLD,

J. R. FmiLMAN,

H. Brian HOoLiann,

Attorneys.

FET

APRIL 1933.

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APPENDIX

Article I, Section 8, of the Constitution provides

in part:

The Congress shall have Power To lav and

collect Taxes, Duties, Imposts and Excises,

to pay the Debts and provide for the com-

mon Defence and general Welfare of the

United States; * * *,

* * * * *

To constitute Tribunals inferior to the

supreme Court ;

* * * * *

To exercise exclusive Legislation in all

Cases whatsoever, over such District (not ex-

ceeding ten Miles square) as may, by Ces-

sion of particular States, and the Accept-

ance of Congress, become the Seat of the

government of the United States * * *.

* * * * *

To make all Laws which shall be neces-

sary and proper for carrying into Execution

the foregoing Powers, and all other Powers

vested by this Constitution in the Govern-

ment of the United States, or in any De-

partment or Officer thereof.

Article ILI of the Constitution provides in part:

Section 1. The judicial Power of the

United States, shall be vested in one su-

preme Court, and in such inferior Courts

as the Congress may from time to time or-

dain and establish. The Judges, both of the

supreme and inferior Courts, shall hold

(12)

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MP AE! hb SELLE TEL TI

13

their Offices during good Behaviour, and

shall, at stated Times, receive for their Serv-

ices, a Compensation, which shall not be di-

minished during their Continuance in Office.

Section 2. The judicial Power shall ex-

tend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the

United States, and Treaties made, or which

shall be made, under their Authority ;—to

all Cases affecting Ambassadors, other pub-

lie Ministers and Consuls ;—to all Cases of

admiralty and maritime Jurisdiction ;—to

Controversies to which the United States

shall be a Party ;—to Controversies between

two or more States ;—between a State and

Citizens of another State;—between Citi-

zeus of different States;—between Citi-

zens of the same State claiming Lands under

Grants of different States, and between a

State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

U S GOVERNMENT PRINTING OFFICE 1933