Benson v. Crowell

• Decision Date: 27 May 1929
• Docket Number: No. 125.,125.
• Parties: BENSON v. CROWELL, Deputy Commissioner, et al.
• Court: U.S. District Court — Southern District of Alabama

33 F.2d 137 (1929)

BENSON v. CROWELL, Deputy Commissioner, et al.

No. 125.

District Court, S. D. Alabama, S. D.

May 27, 1929.

Outlaw, Kilborn & Smith, of Mobile, Ala., and Harry T. Smith & Caffey, of Mobile, Ala., for complainant.

Pillans, Cowley & Gresham, of Mobile, Ala., for Knudson.

Alex C. Birch, U. S. Atty., of Mobile, Ala., for Crowell.

ERVIN, District Judge.

This is a proceeding filed by Benson against Crowell as deputy commissioner for the seventh compensation district, appointed and acting under and by virture of act of Congress known as the Longshoremen's and Harbor Workers' Compensation Act, and against J. B. Knudson, who claimed to have suffered an injury while working for Benson.

The deputy commissioner allowed Knudson's claim, and the proceeding was filed by Benson under subdivision (b) of section 21 of said act, which is found in United States Statutes at Large, vol. 44, part 2, page 1436 (33 USCA § 921(b). The proceeding as amended attacks the act as violative of several provisions of the Constitution, and charges that the proceedings had before the deputy commissioner were not in accordance with law. The act has never yet been construed by the Supreme Court, but it has been before several of the District Courts.

In Obrecht-Lynch Corp. v. Clark (D. C.) 30 F.(2d) 144, Judge Coleman held the act to be constitutional, and also held that the provision under subdivision (b), section 21, should be confined to a review of the testimony presented to and considered by, the deputy commissioner.

Judge Hutcheson, in Howard v. Monahan (D. C.) 31 F.(2d) 480, also held that the appeal under subdivision (b) to the District Court is limited to enjoining or affirming the award of the commissioner, with the further right, if enjoined, to direct the commissioner to proceed to make a new award in accordance with law.

Judge Peters, on April 2d in the case of Patrick J. Joyce v. United States Deputy Commissioner in the First Compensation District 33 F.(2d) 218 held that it was plain the courts are not authorized to interfere, unless the award is clearly not in accordance with law. He says: "There is no appeal from the findings of the deputy commissioner. His award is final. It is only when it is shown he has not proceeded according to law that the court has any jurisdiction."

The only one of these three opinions which purports directly to discuss the question of constitutionality is that of Judge Coleman, but the question as raised before me brings the matter in a different light from that considered by him.

The Compensation Act provides for the filing of a petition with the deputy commissioner, a hearing by him, and an order to be made by him on the hearing. It is then provided by section 18 of the act (33 USCA § 918) that, if the employer delays over 30 days before complying with the award of the deputy commissioner, he may investigate the matter and make a supplementary order declaring the amount of the default which shall be filed in the same maner as the compensation order. A certified copy of such supplementary order may be filed with the clerk of the federal District Court.

"Such supplementary order of the deputy commissioner shall be final, and the courts shall upon the filing of the copy, enter judgment for the amount declared in default by the supplementary order if such supplementary order is in accordance with law. Review of the judgment so entered may be had as in civil suits for damages at common law. Final proceedings to execute the judgment may be had by writ of execution in the form used by the court in suits at common law in actions of assumpsit."

In section 21, subd. b (33 USCA § 921), it is said:

"If not in accordance with law, a compensation order 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."

In the proceedings to enjoin the deputy commissioner a number of constitutional objections are raised, but they narrow down to two:

First, section 2, article 3, which reads: "The judicial power shall extend * * * to all cases of admiralty and maritime jurisdiction."

Second, the Fifth Amendment to the Constitution, which provides that no person shall be "deprived of life, liberty, or property, without due process of law."

It is urged upon me in the first instance that the hearing before the commissioner is not a judicial hearing by an admiralty court, but a mere fact finding statutory proceeding had before an administrative officer under the provisions of this Compensation Act, and therefore that there was no exercise of the judicial power vested by the Constitution in the Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.

In Old Colony Trust Co. et al. v. Commissioner of Internal Revenue, 279 U. S. 716, 49 S. Ct. 499, 73 L. Ed. ___, June 3, 1929, the Supreme Court, in discussing a similar administrative function of the government, says: "The Board of Tax Appeals is not a court. It is an executive or administrative board, upon the decision of which the parties are given an opportunity to base a petition for review to the courts after the administrative inquiry of the board has been had and decided."

In Farrell v. Waterman S. S. Co. (D. C.) 291 F. 604, I discussed this question and expressed my view that such inferior courts as Congress from time to time established were invested with power directly by the constitutional provision just as positively as was the Supreme Court, though Congress could apportion this power among such inferior courts as it chose to ordain and establish. The investment of judicial power, however, came from the Constitution and not from the act of Congress creating the court. I see no cause to change the view then expressed, but am more convinced of it now than at the time I wrote the opinion. London Guarantee & Accident Co. v. Industrial Accident Com'n, 279 U. S. 109, 49 S. Ct. 296, 73 L. Ed. ___, April 8, 1929; Ex parte Bakelite Corp., 279 U. S. 438, 49 S. Ct. 411, 73 L. Ed. ___, May 20, 1929.

I think every one will concede that the proceeding before the deputy commissioner was not a judicial proceeding, but was a mere statutory proceeding by an administrative officer directed and controlled by the Longshoremen's Act.

In Murray's Lessee et al. v. Hoboken Land & Improvement Co., 18 How. p. 280, 15 L. Ed. 372, the court says, in speaking of the statutory proceedings provided by Congress for auditing the accounts of receivers of public moneys and filing the reports of the audit with the court:

"That the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act, must be admitted. So are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application to them of rules of law. In this sense the act of the President in calling out the militia under the act of 1795, Martin v. Mott, 12 Wheat. 19 6 L. Ed. 537, or of a commissioner who makes a certificate for the extradition of a criminal, under a treaty, is judicial. But it is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact. United States v. Ferreira, 13 How. 40 14 L. Ed. 42. It is necessary to go further, and show not only that the adjustment of the balances due from accounting officers may be, but from their nature must be, controversies to which the United States is a party, within the meaning of the second section of the third article of the constitution. We do not doubt the power of Congress to provide by law that such a question shall form the subject-matter of a suit in which the judicial power can be exerted. The act of 1820 3 Stat. 592 makes such a provision for reviewing the decision of the accounting officers of the treasury. But, until reviewed, it is final and binding; and the question is, whether its subject-matter is necessarily, and without regard to the consent of Congress, a judicial controversy. And we are of the opinion it is not."

On page 275 of the opinion in the same case it is said:

"It must be admitted that, if the auditing of this account, and the ascertainment of its balance, and the issuing of this process, was an exercise of the judicial power of the United States, the proceeding was void; for the officers who performed these acts could exercise no part of that judicial power. They neither constituted a court of the United States, nor were they, or either of them, so connected with any such court as to perform even any of the ministerial duties which arise out of judicial proceedings."

The question therefore arises whether or not the act under discussion undertakes to deprive the federal courts of judicial power conferred upon them by the Constitution.

The answer to this question depends somewhat as it did in the Murray Case upon the conclusions reached as to the due process clause, and I shall therefore now discuss that.

In the same case of Murray's Lessee on page 276 the court says:

"That the warrant now in question is legal process, is not denied. It was issued in conformity with an act of Congress. But is it `due process of law'? The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process `due process of law,' by its mere will. To what principles, then, are we to resort to ascertain...