over the country, although you may get some of it inevitably. It seemed to us, on the other hand, in view of the fact that Congress has relied largely on the Court of Claims as the tribunal handling claims against the United States-that has been the most significant court in the claims picture that it was probably not desirable to exclude it altogether from the picture, and if it was not going to have nisi prius jurisdiction, then it ought to act in the appellate stages. Secondly, there is a desirability of securing uniformity, particularly on such a matter, for instance, as the adequacy or inadequacy of the allowances made for death or personal injury, and it is going to be impossible, I should think, to get any review of such a matter before the Supreme Court. So that your Court of Claims would provide you with a source of uniformity in the administration of this matter. Mr. MCLAUGHLIN. If you want to incorporate an appeal, which of course is a very desirable thing, why not clothe the circuit court of appeals with appellate jurisdiction in these cases? That court is more familiar with the law of the States within which it has jurisdiction, I should say, than the Court of Claims, because the Court of Claims has never had occasion to handle this type of matter. In addition to that, did you give consideration to the fact that in the event of an appeal it will be necessary for the litigants' attorneys to come to Washington from the various parts of the country where the cases have been tried in order to present appeals, whereas if the appeal lies to the circuit court of appeals the attorney is required to travel only the distance necessary to go to the circuit court of appeals in his circuit. Mr. SHEA. Those are important considerations. I think there are important considerations in favor of having the appellate jurisdiction in the Court of Claims, particularly when you are removing it from any jurisdiction in the trial of the matter. I do not mean to suggest there are not considerations on the other side. It is our judgment, however, that the considerations on the whole indicate the desirability of this provision. Otherwise you would have nine circuit courts of appeals rather than one Court of Claims acting on appeals. I should expect that the amount of appellate work would be rather small. I should think the Government would be inclined to appeal only where some important construction of the statute was involved, or where you had the problem of district courts being way out of line in their allowances on the same kind of an accident. Mr. MCLAUGHLIN. May I follow that up briefly? Did you give any consideration or look into the question as to how long it would take an appellant to have his case heard on appeal either in the Court of Claims or in the various circuit courts of appeal? Mr. SHEA. In the circuit courts of appeals it would depend on how current they are with their dockets. Mr. MCLAUGHLIN. I am raising that question, because reasonable speed in determining these cases is certainly one of the things needed. Mr. SHEA. It is essential in this case. The Court of Claims is pretty well up with its docket at the present time, and I think in general the circuit courts of appeals are. However, I would have to check with Mr. Chandler as to the circuit courts of appeals. There are some I know of offhand, but not all. Mr. MCLAUGHLIN. If this matter goes to the Court of Claims on appeal would it be heard by the Court of Claims in the same manner in which an appeal to the circuit court of appeals is now heard, or would the work of the commissioners be interposed in any way? Mr. SHEA. You mean if it went to the Court of Claims? Mr. SHEA. If it went to the Court of Claims, it would be heard just the same way as appeals from the district courts are now heard by the circuit courts of appeals. There would be no interposition of a commissioner. A record would come up from the district court and it would be heard by the Court of Claims. Mr. MCLAUGHLIN. Do you have a very strong conviction on this matter of clothing the Court of Claims rather than the circuit courts of appeals with this appellate jurisdiction? Mr. SHEA. I feel definitely the desirability of it. I think it is desirable to have a court which is the key court on the business of claims against the United States. I am not unaware of the importance of the suggestions which you have advanced but weighing all the factors I am of the opinion that this is the desirable provision. Mr. CRAVENS. Has not the Supreme Court held that the Court of Claims is really not a court but a legislative agency? This would be having them reviewed by a tribunal which is a legislative agency. Mr. SHEA. That problem is fully covered on page 7 of the memorandum with appendixes, which was printed for the use of this committee. In the Williams case, it was held that the district courts when hearing cases under the Tucker Act are sitting as a Court of Claims. Mr. CRAVENS. As I recall, judges of the Court of Claims could have their salaries reduced because it was not a court. case. Mr. SHEA. It is true that the salaries of the judges of the Court of. Claims are subject to reduction; and it was so held in the Williams The Court of Claims is not an article III court as are the Federal district courts. But the Supreme Court also held in the Williams case that it could entertain appeals from the Court of Claims, and that the district courts could be given jurisdiction concurrent with the Court of Claims because the Court of Claims was exercising a judicial function. They were exercising judicial power, not the judicial power under article III of the Constitution, but rather judicial power vested in them as a means of carrying out Congress' power to pay debts under article I, section 8. Mr. ROBSION. Could not Congress give it judicial power? Mr. SHEA. Yes. Mr. CRAVENS. The judicial power is vested in courts. Congress could not give it power to exercise judicial functions. Mr. ROBSION. I want to ask another question. Mr. SHEA. Could I further answer his question? If you will look on page 7 of this committee print, entitled "Memorandum with Appendixes," you will find the constitutional question there fully developed. Mr. CRAVENS. It does not make any difference except Mr. McLaughlin suggested that people can go to the circuit courts of appeal and not come here to the Supreme Court. Mr. ROBSION. What I wanted to get is this: Is it merely permissive or mandatory for the claimant to institute his action or claim in the Federal agency? Mr. SHEA. Permissive. Mr. ROBSION. A new claimant can institute his action in the Federal district court? Is that in this bill? Mr. SHEA. That is right. Mr. ROBSION. What is the minimum jurisdictional amount, if any, fixed in the bill? Mr. SHEA. There is no minimum jurisdictional amount. Mr. ROBSION. So a fellow claiming an injury involving $200 could start in the Federal court? Mr. SHEA. That is right. Mr. ROBSION. Then, after he starts in the Federal court, and there is action taken for him, whether he either wins or loses, can he or the Government, either one, appeal to this Court of Claims? Mr. SHEA. Either. Mr. ROBSION. Either can appeal? Mr. SHEA. Do you mean after he brings suit in the district court and either wins or loses? Mr. ROBSION. Yes. Mr. SHEA. He has the usual appeal which a person has who has tried a case in the district courts, except that the appeal goes to the Court of Claims. Mr. ROBSION. Would the question arise there as to the jurisdictional amount? Mr. SHEA. No, the question would not arise there as to the jurisdictional amount. Mr. O'HARA. What about title III, which states: "not exceeding the sum of $7,500"? Mr. SHEA. I was using jurisdictional amount in the technical sense. There is a jurisdictional top limit. Mr. ROBSION. There is a minimum Federal court jurisdictional amount. Mr. SHEA. As I understood the question, is a minimum jurisdictional amount necessary in order to permit you to bring suit? Was not that your question? Mr. ROBSION. That is right. Here we limit the maximum jurisdictional amount to $7,500 which you can recover. Assume I had a claim recently which was filed with the Claims Committee in the House. It acted upon it very promptly. In fact, the Government admitted negligence. A C. C. C. driver ran into a man's automobile, killed his daughter, a fine, healthy young woman. He was a railroad conductor. It injured him totally and permanently for life, and injured badly two other daughters. That was a civil act of that single agency of the Government. Would each one have a maximum limitation of $7,500, or would that amount apply to the whole thing? Mr. SHEA. Each claimant would have a maximum limitation, I think, sir. Mr. ROBSION. Each claimant could go up to $7,500? Mr. SHEA. That is right. Mr. GWYNNE. On this constitutional matter, for example, here is a District Court of Iowa Mr. ROBSION (interposing). Just before you go into that, this bill does not preclude any Member from introducing a special bill to have Congress grant relief? There is nothing to prohibit that, is there? Mr. SHEA. No. Of course, it would be hoped that if the claim were cognizable under the Federal Tort Claims Act, the Congressman would say, "You go to the district court." Mr. ROBSION. There is nothing in the act here as to that. Mr. SHEA. I take it there is no way by which one Congress can take away the powers of the next Congress. Mr. O'HARA. Right along the same line, it is my understanding that title III prohibits the trial by jury of these cases. What is the reason for that? Mr. SHEA. The district courts passing on claims against the United States under the Tucker Act of March 3, 1887, are required by the statute to try the case without a jury. They are sitting in these cases as a court of claims and exercising court of claims jurisdiction. Mr. O'HARA. What about the constitutional right of a man to have his case tried by a jury? Mr. SHEA. I do not think this involves the question of a constitutional right to a trial by a jury because the district court is not exercising article III jurisdiction. It is sitting as an arm of the Congress to dispense the Government's bounty in respect to these claims; that is, there is no right of action as a constitutional matter against the United States existing as of the time of the adoption of the Constitution. While they are exercising judicial power, they are not exercising article III judicial power. They are acting as a court of claims, and the Congress in consenting that the United States may be sued, can impose such conditions as it desires, including a provision for trial of the case without a jury. This has expressly been decided by the Supreme Court in McElrath v. United States (102 U. S. 426). Mr. ROBSION. If we gave the claimant this right he can exercise it. Mr. SHEA. Yes; quite right. The district court in cases under the Tucker Act, and the Court of Claims, are acting as statutory courts and as an arm of the Congress. Mr. O'HARA. Some of these lawyers are not going to agree with you as to waiving a jury. I am forgetting about constitutionality and going into the matter of policy. Mr. SHEA. As a matter of policy, this committee every time it has acted on this matter has recommended to Congress that it bestow the power on courts to try these claims without a jury. I mean there has never been an instance, so far as I know, in which this kind of jurisdiction has been conferred on a court acting with a jury. The district courts in hearing claims against the United States under the Tucker Act, and, of course, the Court of Claims, sit without a jury. Mr. GWYNNE. On that constitutional question can a district court created under title III of the Constitution be required to try a lawsuit, for example, where an appeal can be taken to the Interstate Commerce Commission or some other commission? Mr. SHEA. Not if the district court is exercising judicial power under article III of the Constitution. But if the district court is exercising judicial power conferred upon it under some other provision of the Constitution, Congress could provide for appeals from its decisions to a legislative court exercising similar judicial power. Mr. GWYNNE. Is there a decision as to that? If so, where? Mr. SHEA. There are several decisions which support my conclusion, notably Williams v. United States (289 U. S. 553), and United States v. Sherwood (312 U. S. 584). You see, the district courts under this bill would not exercise article III jurisdiction. May I read from page 7 of the committee print? "In adjudicating claims against the United States under the Tucker Act, the district court sits as a court of claims." And we have cited you the recent Sherwood case in regard to that. When the district court sits under this act it will not be sitting as a district court exercising article III power, but it will be sitting as a court of claims in respect to these particular claims. The Supreme Court of the United States has held in United States v. Jones, 119 U. S. 477, that it could hear appeals from the Court of Claims because the Court of Claims was exercising judicial power, and I should think, therefore, as the Court of Claims exercises judicial power and as the district courts in these cases are not sitting in their normal capacity and exercising their normal article III jurisdiction, but are sitting as a court of claims, that you could have an appeal from one court of claims to another court of claims. Mr. GWYNNE. Do you think a claim could be appealed from the courts to the Committee on Claims or any other branch of the Government? Mr. SHEA. A judicial decision, as such, could not be appealed to a legislative body, but it is otherwise if the court is not exercising judicial power. For instance there are instances of district judges sitting in arbitration cases with the State Department exercising final jurisdiction. They are not there exercising judicial power. Mr. GWYNNE. They do that voluntarily, don't they? Mr. SHEA. Yes. Mr. GWYNNE. In other words, a court created under article III, separate and independent, cannot be made the arm of the executive branch to try a case? Mr. SHEA. Not if they are exercising article III judicial power. But courts created under article III, such as the Federal district courts, can be and have been made the arm of the legislative branch to try claims against the United States, which is judicial power under other provisions of the Constitution. Mr. GWYNNE. What I am getting at is after they have adjudicated those claims the Congress has a right to review them. Mr. SHEA. I think except in one instance Congress has paid the judgments of the Court of Claims. While you almost always have felt a moral obligation to appropriate the funds as a matter of fact, I think there was one instance in which Congress refused to pay a claim, after a Court of Claims judgment. Mr. GWYNNE. That is very true because that is quite a different court. Mr. SHEA. I think it is equally true in respect of judgments of the district courts under the Tucker Act. Mr. GWYNNE. What about the Muskrat case, that Indian case? Does that conflict with this other case? Mr. SHEA. I am not sure I recall the facts in that case. Was that the one where the President asked for an opinion of the Supreme Court? Mr. GWYNNE. No; it reviews the whole subject and points out that a district court under article III is an independent branch of the |