United States ex rel. Wedderburn v. Bliss

12 App. D.C. 485, 1898 U.S. App. LEXIS 3173

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 4, 1898
• Docket: No. 758
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

The question in the case is, whether the appellant had in the Department of the Interior the hearing upon his case to which he was by law entitled. For, as to the character of the judgment to be rendered upon such hearing, there is, of course, no pretence that it can be controlled or directed in any manner by the courts of law, or that it is subject to review by any other tribunal for any supposed error. The final determination upon such hearing is for the Secretary of the Interior, and not a matter for the consideration of the courts.

That the relator’s office of agent and attorney before the Patent Office and the Department of the Interior was a valuable right of which he should not be deprived without due process of law, such as would be applicable to his case, is not controverted. Nor is there controversy as to what, in general, would constitute due process of law in such cases as that to which the relator was summoned to respond. Specific charges, due notice of such charges, an opportunity to make specific answer to them, an opportunity to cross-examine the witnesses in support of them, an opportunity to adduce testimony in contradiction of them, an opportunity for argument upon the testimony and upon the law and the facts, — and all this before the proper tribunal, competent to render judgment, and which does, in fact, render judgment — this undoubtedly constitutes due process of law under ordinary circumstances to its fullest' extent, and all this was had in the present instance, if it was competent for the Secretary of the Interior and the Commissioner of Patents to give the hearing in the mode in which it was actually given. Upon the claim of the appellant himself, no proper element of due process of law was wanting in the case except the opportunity of submitting an argument, oral or written, to the Secretary of the Interior in person, after such opportunity had been fully availed of before the Commissioner of Patents. But the right to submit argument is a valuable, although perhaps not always an essential, part of the hearing that constitutes due process of law. Whether the appellant was entitled to it in this case, and to the extent of his claim, depends upon the provisions of the statute law that has been enacted upon this subject.

Section 487 of the Revised Statutes of the United States, which substantially embodies the seventeenth section of the act of Congress of July 8, 1870, consolidating the patent and copyright laws, is to the following effect:

“For gross misconduct the Commissioner of Patents may refuse to recognize any person as a patent agent, either generally or in any particular case; but the reasons for such refusal shall be duly recorded, and be subject to the approval of the Secretary of the Interior.”

There had been a previous act of March 2,1861 (12 Stat. 246), which in its eighth section contained precisely the same provision, with the exception that the approval of the Commissioner’s action was to be by the President of the United States instead of the Secretary of the Interior; but it is not apparent that the change has any significance in connection with the present controversy.

Subsequently by an act of Congress of July 4, 1884 (23 Stat. 98), which had reference mainly to pensions, but which purported also to be “for other purposes,” it was provided as follows:

“Section 5. That the Secretary of the Interior may prescribe rules and regulations governing the recognition of agents, attorneys, or other persons representing claimants before his Department, and may require of such persons, agents, and attorneys, before being recognized as representatives of claimants, that they shall show that they are of good moral character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their claims; and such Secretary may, after notice and opportunity for hearing, suspend or exclude from further practice before his Department any such person, agent, or attorney shown to be incompetent, disreputable, or who refuses to comply with the said rules and regulations, or who shall, with intent to defraud, in any manner deceive, mislead, or threaten any claimant, or prospective claimant, by word, circular, letter, or by advertisement.”

It seems to be conceded that this provision of law, although contained, as stated, in an act mainly relating to pensions, constituting in itself an independent section of the act, is sufficiently general to apply to all the bureaus of the Department of the Interior, and not alone to practitioners before the Pension Bureau. And it seems also to be conceded that it does not repeal the section 487 of the Revised Statutes which has been quoted, but that it is to be taken in connection with it as being in pari materia, and that both acts are to be construed together.

In pursuance apparently of the power vested in him by this act of July 4, 1884, the Secretary of the Interior, among other rules, promulgated the following, under which it is understood the investigation of the charges against the relator was conducted :

“Rule 9. Whenever an attorney or agent is charged with improper practice in connection with any matter before a bureau of this Department, the head of such bureau shall investigate the charge, giving the attorney or agent due notice, together with a statement of the charge against him, and allow him an opportunity to be heard in the premises. When the investigation shall have been concluded, all the papers shall be forwarded to the Department, with a statement of the facts and such recommendations as to disbarment from practice as the head of the bureau shall deem proper, for the consideration of the Secretary of the Interior. During the investigation the attorney or agent will be recognized as such, unless for special reasons the Secretary shall order his suspension from practice.”

The question recurs, did the appellant have the hearing to which he was entitled under these enactments?

If the determination of this inquiry depended exclusively upon the construction to be given to section 487 of the Revised Statutes, it seems to us that there would be no serious difficulty in reaching a conclusion. It is very clear that this section remits to the Commissioner of Patents the entire cognizance of cases of malpractice occurring before his bureau, and that under it the hearing,of such cases is to be by him and not by the Secretary of the Interior. It is eminently fitting that this should be so, in view of the character of the duties, judicial or guasi-judicial, which are vested in him. Butterworth v. Hoe, 112 U. S. 50. It is true, however, that by this section there is reserved to the Secretary of the Interior a supervising power over the action of the Commissioner of Patents; but this is no more than an executive or administrative proceeding. The provision that the judgment of the Commissioner shall “be subject to the approval of the Secretary of the Interior,” does not make the Secretary a court for the trial of the case, nor does it make him in any proper sense an appellate tribunal before which it would be proper for a party in interest to demand and to be accorded a hearing. Such terms are nowhere in our legislation used for the creation of apppellate' judicial authority. They are most inapt terms for any such purpose, and they are equally inapt to constitute the Secretary the court of first instance, for which the findings of the Commissioner may serve as .the findings of a referee or master in chancery. In the one case in our legislation in which similar or equivalent terms are used for the creation of supervisory guosi-judicial authority — the provision for the review of sentences of courts-martial by the President of the United States or by a commanding officer — it has never been heard of that such supervisory authority implies any right on the part of a person in interest to a hearing de novo before such supervising power, notwithstanding that the exercise of the power is a grosi-judicial function.

It is very clear to us that under this section 487 of the Revised Statutes, if it stood alone, the Commissioner of Patents, and not the Secretary of the Interior, constitutes the tribunal for the determination of cases of alleged malpractice occurring before his bureau, and that the hearing, to which an agent or attorney is entitled before exclusion from recognition, is to be had before the Commissioner. The authority of the Secretary is to review 'the record transmitted to him, and to give or refuse his assent to the Commissioner’s recommendations, as he may think proper, and for any reason satisfactory to him. In other words, it is for the Commissioner to pass judgment; hut that judgment is not to be given effect until it is approved by the Secretary.

What change, if any, does the act of 1884 make in the proceeding? That act undoubtedly sought to place all the bureaus of the Department of the Interior on the same basis in the matter of the recognition of agents and attorneys, and in the matter of their exclusion from practice for misconduct, while section 487 of the Revised Statutes had reference only to the Patent 'Office. It provides for rules and regulations to be made by the Secretary to regulate the matter of recognition; but it does not in terms provide for any such rules and regulations in regard to the matter of disbarment. The act would seem to have been left intentionally vague in this regard; for, instead of providing that the Secretary might make rules to govern the matter of the exclusion of attorneys, as well as that of their admission, it provides that, “after notice and an opportunity for a hearing,” the Secretary might exclude such attorneys from practice. It leaves it undetermined how and before whom such hearing shall be had; and undoubtedly there i’s great plausibility in the theory that the hearing is to be before the person who is authorized to take final action upon it. If we were dealing here with the action of judicial tribunals, we would have no hesitation whatever in so holding. A court authorized to decide necessarily is the court authorized to hear, and it may not delegate to any one its duty to hear any more than it can delegate its function to decide.

But there is question here of the conduct of the affairs of a great executive Department of the Government, and the character of its duties is not to be ignored in the construction of an act of Congress intended merely to regulate the performance of those duties to the Test advantage of the people and with entire justice to all concerned. It is well-settled law, and a fundamental rule of our governmental system, that purely judicial functions can not be conferred upon an executive officer. But of necessity executive officers are frequently vested with discretionary functions of a guasi-judicial character, and these can no more be delegated than can strictly judicial authority. Runkle v. United States, 122 U. S. 543. But where it does not distinctly appear what officer is to exercise the gwsi-judiciál authority conferred by statute, and where the tenor of legislation leaves the exercise of it to be determined in great measure by executive regulation, the presumption does not necessarily arise that the head of the Department must himself in person exercise the authority so conferred. When we compare the act of Congress of 1884 and the section 487 of the Revised Statutes, and construe them together, as it is justly claimed on behalf of the appellant that we should construe them, it is clear that it was not the intention of Congress to repeal section 487 by the enactment of the later law; and if such was not the intention of Congress, then the only reasonable construction of the act of 1884 was that the hearing therein provided to be given to the persons charged with malpractice was the hearing implied to be given by section 487 of the Revised Statutes, So far, at least, as the Patent Office was concerned, the act of 1884 made no substantial change in the law. It simply provided expressly for' the notice and hearing, the right to which had been implied in the previous statute. And that this was the understanding also of the Department of the Interior is clear from Rule 9, which has been cited, for that rule is in entire accordance with section 487 of the Revised Statutes, and serves as a construction of the meaning of the act of 1884 as it was understood by the Department.

Now, it has been repeatedly held by the Supreme Court of the United States, and it must, therefore, be regarded as settled law, that the construction placed by an executive Department of the Government upon a statute enacted for its guidance and the regulation of its business must, unless it be plainly erroneous, receive due weight and consideration, and should not be disregarded, except for cogent rea■sons. United States v. Johnston, 124 U. S. 236; Heath v. Wallace, 138 U. S. 573; United States v. Railroad Co., 142 U. S. 615; Pennoyer v. McConnaughy, 140 U. S. 1; United States v. Railroad Co., 148 U. S. 562; Robertson v. Downing, 127 U. S. 607. When, therefore, the department which was called upon to administer the act of 1884 and to construe that act in connection with section 487 of the Revised Statutes, did, by the adoption of its Rule 9, so construe it that the notice and an opportunity for a hearing therein provided to be given should be given by the head of the proper bureau, and that the investigation should be conducted by such bureau officer, subject to the approval of his findings by the Secretary of the Interior, it is not apparent that there was error in that construction, and we find no reason to antagonize it. Indeed, so far as the intention of Congress in the premises can be inferred from the statute itself, it would seem that this was the only proper construction. For it will be noticed that the provision of the statute is not that the Secretary might exclude from practice after notice and hearing of the party charged, which would be the more natural form of expression if it was the intention that the hearing should be before the Secretary in person, but that he might exclude “after notice and opportunity for a hearing,” — meaning plainly a hearing before some proper officer in such reasonable mode as should be provided by regulation of the department.

What Mr. Justice Field, speaking for the Supreme Court of the United States in the case of Randall v. Brigham, 7 Wall. 523, said in reference to the general rule of law on this subject, would seem to be appropriate here. He said:

“All that is requisite for their validity (meaning the validity of proceedings for disbarment of an attorney) is, that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence. The manner in which the proceedings shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.”

We must conclude that the hearing contemplated by the act of 1884 was accorded to this appellant in this instance in the hearing which he had before the Commissioner of Patents, and that the purpose of the statute was amply sub-served by that hearing. We can not hold that the relator was entitled to two hearings — one before the Commissioner and one before the Secretary. Pie himself does not claim this, at least in the fullest sense of the term “hearing.” He does not claim that he had the right to adduce testimony and to go over the case de novo before the Secretary; and yet to this he was entitled if his construction of the statute be correct, for the word “ hearing ” in law and in this statute means something more than oral argument. It means, also, the right to adduce testimony. Now, if the sole hearing contemplated by the statute was to be had before the Secretary, the Commissioner of Patents could not hear it at all, and the only duty that could reasonably be imposed upon that officer was that of taking the testimony and reporting it to the Secretary. But this conclusion would be in direct contravention of the section 487 of. the Revised Statutes, which explicitly provides that the Commissioner shall determine the matter, subject only to approval of his action by the Secretary of the Interior. The Commissioner does not act in the matter as a master in chancery or other officer whose duty it is simply to facilitate proceedings and to put them in shape for action thereon by the tribunal authorized to decide them. The Commissioner himself is the tribunal in this case. He is the person authorized by law-to investigate and decide. He is therefore the person before whom a hearing can most properly and ought to be had before he formulates his conclusions.

The utmost that could be claimed in this connection is, that the Secretary of the Interior acts as a kind of appellate tribunal over the Commissioner of Patents. But even if this be conceded — and we think that it must be taken with some qualification — it does not follow that a party in interest is entitled to oral argument, or to a hearing of any kind, before him beyond what is involved in the examination of the record necessary for the exercise of supervisory power. Such argument might be allowed as matter of grace, but it can not legally be claimed as matter of right. Even in proceedings purely judicial, the right of appeal is not matter of absolute right, but is of statutory creation, and therefore may be regulated or limited by statute, or by rules of court made in pursuance of statute, and may even be taken away entirely. And if it may be so limited and regulated, it is competent to exclude argument of any kind, except such as may have appeared in the court of original resort.

But, as we have already intimated, the words of the statute are not those that are usual in the creation of appellate tribunals. It is true that the supervisory power vested in the Secretary of the Interior over the action of the Commissioner is in this instance judicial in its nature, and must be exercised by the Secretary, himself, in person (Runkle v. United States, 122 U. S. 543), but all usage and all precedent would be vain if we were to hold that he could not exercise it until he heard the party in interest in oral argument. The meaning of such supervisory power is not that the Secretary must try or hear the cause, but that the judgment of the Commissioner is not to be carried into effect until it receives the approval of the Secretary; and in order to give it this approval, or conversely and by implication his disapproval, the Secretary is necessitated to go over the record of the proceedings that is made up for him according to law or regulation. This, as we have said, is a judicial or quasi-judicial duty on his part; but it is not the equivalent in any sense of the hearing of a cause.

Entertaining the view of the case which we have here sought to express, it is unnecessary for us to determine whether, under the decision in the case of Commissioner v. Whiteley, 4 Wall. 522, it would be proper in any event to issue the writ of mandamus in this case. In the case of Commissioner v. Whiteley, the rule was laid down quite emphatically by the Supreme Court of the United States, through Mr. Justice Swayne, that the writ of mandamus is only applicable in two classes of cases: first, where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion; second, where the exercise of judgment and discretion are involved and the officer refuses to decide, “provided that, if he decided, the aggrieved party could have his decision reviewed by another tribunal.” Unless this decision has been modified by subsequent adjudications by the same tribunal, it would seem to be decisive of this case, for there is certainly no right of review by any tribunal of the decision of the Secretary of the Interior in the premises. It would seem, however, that the decision in the case of Commissioner v. Whiteley has been somewhat modified in subsequent cases. Certainly an exception was made to it in the case of Ex parte Bradley, 7 Wall. 364, in which it'was-broadly held, without reference to. the theory of appellate-jurisdiction to review the judgment that might be rendered by an inferior court, the action of such court might be restrained or constrained by the writ of mandamus, whenever it undertook to proceed without jurisdiction, or the case was one of irregularity, against law, or of flagrant injustice-But it may be questioned whether these very general expressions have not themselves been modified by subsequent decisions.

. Assuming, however, for our present purpose that mandamus is proper whenever an inferior court, or a judicial officer charged with the exercise of discretionary or judicial functions, either assumes to exercise jurisdiction when none exists, or refuses to entertain jurisdiction with which he is by law invested, without regard to the question whether there is any appeal from his judgment when rendered and when he has acted, we may well doubt whether the present case is one proper for the writ. The purpose here sought is to compel the exercise of jurisdiction substantially denied to exist — the alleged right to a hearing or oral argument before the Secretary in person. But the only possible result of a hearing is ultimate action in the matter by the Secretary in the way of approval or disapproval of the conclusion reached by the Commissioner. Now, that action has been had. The Secretary has given his approval to the Commissioner’s recommendations, and upon application of the relator for the rescission of his action and for an opportunity to be heard before him, he has reiterated his determination and refused to reopen the case. We greatly doubt whether, under such circumstances, the refusal of the Secretary to accord to the relator the opportunity to make an argument, especially when it is not shown or in auy manner intimated how or wherein the Secretary erred or was mistaken or misled, is to be regarded as a jurisdictional matter for which the writ of mandamus would be proper.

But this question it is unnecessary here to decide. We prefer to base our decision on the broader ground that the relator has had the hearing to which he was by law entitled, and that it was not an essential part of that hearing, or of due process of law in the premises, that he should have been permitted to make an argument, either oral or written, before the Secretary of the Interior in person. But we do this all the more readily in the hope and expectation that our decision may be reviewed by the court of last resort, and that our error, if error there be, may be there corrected.

We are of opinion that the order of the Supreme Court of the District of Columbia refusing the writ of mandamus in this case was right, and that it should be affirmed, with costs ; and it is so ordered.