Courts have no hesitation in performing ministerial acts, if such acts are incidental to the exercise of their proper judicial functions. But they will not perform administrative acts not so connected.

In Hayburn's case27 the federal circuit judges before whom the question was raised unanimously refused, as directed by an act of Congress, to inquire into and to take evidence as to the claims of invalid pensioners and to submit their findings for final action to the Secretary of War, on the ground that inasmuch as their acts were made reviewable by an executive officer they could not be deemed judicial in character.

In United States v. Ferreira28 the Supreme Court held that an act of Congress that gave to the District Judge of Florida the authority to pass upon certain claims, which decisions were to be reported to the Secretary of the Treasury for his discretionary action thereupon, gave to such judge not judicial but administrative powers, and that, therefore, when so acting, he sat as a commissioner and not as a court, and, consequently, that an appeal would not lie from his decisions to the Supreme Court. The opinion declares: "The powers conferred by these acts of Congress upon the judge, as well as the Secretary, are, it is true, judicial in their nature; for judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commission appointed to adjust claims to lands or money, under a treaty; or special powers to inquire into or decide any particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a secretary as well as a commissioner, but is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States."

27 2 Dall. 409; 1 L. ed. 436.

28 13 How. 40; 14 L. ed. 42.

In the case of Gordon v. United States29 the Supreme Court refused to review the action of the Court of Claims in respect to a claim examined and allowed by it under an act of Congress which provided that no money should be paid out of the Treasury for any claim passed upon by the Court of Claims until after an appropriation therefor had been estimated by the Secretary of the Treasury and an appropriation to pay it made by Congress. The appeal of Gordon was dismissed on the ground that Congress could not " authorize or require this [the Supreme] court to express an opinion in a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect." " The award of execution," said the Chief Justice, " is a part and an essential part of every judgment passed by a court having judicial power. It is no judgment in the legal sense often without it. Without such an award the judgment would be inoperative and nugatory leaving the aggrieved party without a remedy. It would be merely an opinion which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this Act of Congress." 30

29 2 Wall. 561: 17 L. ed. 921. See, also, 117 U. S. Appex. 697.

30 In the case of Re Sanborn (148 U. S. 222; 13 Sup. Ct. Rep. 577; 37 L. ed. 429) the same doctrine was applied to substantially similar facts. It may be remarked that, though the fourteenth section of the original act of 1803 has been repealed, and the Supreme Court now entertains appeals from the Court of Claims, the judgments are not even now, strictly speaking, self executory, an appropriation by Congress for their payment being required, which appropriations are made at the suggestion of the heads of departments out of whose proceedings the claims have arisen.