of this issue to pass upon the merit or lack of merit of such contentions. (See American Insurance Co. v. Canter, 1 Pet. 511-545.)

As we view it, this court either was or was not created on August 5, 1909, under and by virtue of the power granted to Congress in Article I, section 8, and Article III, supra. If it was created under and by virtue of such power, we think if follows, beyond plausible controversy, that it is limited in its jurisdiction to such "cases" and "controversies" as are specified in section 2 of Article III. To this effect are the latest and most apt pronouncements of the Supreme Court and which may be found in Muskrat v. United States (219 U. S. 346); Postum Cereal Co. v. California Fig Nut Co. (272 U. S. 693); and Liberty Warehouse Co. et al. v. Grannis (273 U. S. 70).

While there has been considerable said in some of the decisions of the Supreme Court, in connection with matters somewhat unrelated to the issues at hand, relative to a distinction existing between the limitation on the jurisdiction of the Supreme Court under Article III and the limiting effect of such article on the jurisdiction of inferior courts (Gordon v. United States, 117 U. S. 697), and while suggestions have been made indicating that there may be "inferior" courts other than those in contemplation in Article III, we think that the decisions of the Supreme Court have definitely settled the proposition that the limitations of Article III on jurisdiction, as well as the provisions for salary and tenure of office, apply with as much force to an inferior court, created under Article III, as to the Supreme Court. (Liberty Warehouse Co. et al. v. Grannis, supra; Keller et al. v. Potomac Electric Power Co. et al., 261 U. S. 428.)

In order to determine its jurisdiction, therefore, any United States court called upon to construe the laws of the United States, such as the one at bar, must necessarily first determine under what constitutional power it was created, in order to determine whether or not it is subject to the limitations as to jurisdiction prescribed by the Constitution. In this connection the court must inquire what was done, and not what may be done. In doing so resort may be had not only to the context of the act of creation but to the legislative history, committee reports, and other similar legislation involving the creation of courts and tribunals. After a careful examination into all of these facts, many considerations bring us to the conclusion that this court was created under and by virtue of the authority of Article III of the Constitution, and by no other authority, and some of which considerations we deem it advisable to enumerate.

The pertinent portions of section 29 of the tariff act of 1909 (H. R. 1438), in which act this court was brought into existence, are too long for quotation here. The act itself is referred to hereinafter in preference to the codes of 1911 and 1926, since the codes have slightly changed some of the original expressions.

It will be observed that in the creation and establishment of this court no jurisdiction was given to it except in "cases." In its original creation it was not within the contemplation of its creators to confer upon it jurisdiction to try administrative questions or matters not embraced within the terms of section 2 of Article III. Every case given to it arises under "the laws of the United States." It will be noted further that it was styled the "United States Court of Customs Appeals," and that its members were designated as "a presiding judge and four associate judges"; that it should be "a court of record, with jurisdiction as hereinafter established and limited"; that its "judgment or decrees shall be final."

Its jurisdiction was carved out of the jurisdiction of the circuit courts and circuit courts of appeals, and it not only took the jurisdiction formerly entertained solely by the circuit courts and circuit courts of appeals, but its jurisdiction was made final, even denying litigants the right of appeal to the Supreme Court. The law was, in 1914, amended to provide a very limited right of appeal to the Supreme Court. The judges were to receive compensation of $10,000. The act provided that upon the temporary inability or disqualification of one or two judges of said court, that the President of the United States might designate any qualified United States circuit or district judge or judges to act in his or their place. It is furthermore to be observed that its jurisdiction was exclusively appellate, and that it was authorized not only to sit in Washington, but also to sit anywhere in the United States, "in the several judicial circuits." In determining whether a court is an inferior court created under and subject to the provisions of Article III of the Constitution, the Supreme Court has given almost controlling influence to the tenure of office of the judges which was either given by or omitted from the act creating the court. (McAllister v. United States, 141 U. S. 174,

184-186.)

The imperative need of life tenure for the judges of the United States Court of Customs Appeals, the jurisdiction of which is coextensive with the Nation and which decides cases which are ofttimes directly concerned with great public issues and issues of vast financial and economic importance, need not be discussed here further than to say that at least equally important reasons exist for a judge of this court to be "perfectly and completely independent, with nothing to influence or control him but God and his conscience" as were under consideration in Evans v. Gore (253 U. S. 245). (See remarks by Chief Justice Marshall, Debates Va. Conv., 1829-1831, pp. 616, 619; Alexander Hamilton in Federalist, No. 79.)

An examination of the legislative procedure incident to the enactment, by Congress, of section 29 of H. R. 1438, being what is commonly known as the Payne-Aldrich Tariff Act, in July, 1909, the

debates in the Senate on July 7, 1909, the Senate committee report, and other relevant legislative matters we think indisputably shows that the framers of the law thought they were, and in fact were, creating a court whose judges would have a life tenure in office. The committee report sets up that one of the reasons for creating the court was that if able men devoted a lifetime to the service, they would become highly efficient in the highly technical jurisprudence incident to the settlement of customs controversies. The judges of such court were commissioned for life. Nowhere in the statute creating this court, or in any other law, is life tenure or service during good behavior of its judges expressly granted, nor is any definite tenure granted.

From what source, may we inquire, were the judges of this court given tenure during good behavior? There can be but one answer. Being an inferior court, created under section 1 of Article III of the Constitution, and, as such, exercising a portion of the judicial powers of the United States, said section, by its express terms, authorized said judges to "hold their offices during good behavior." (McAllister v. United States, supra.) The two clauses in section 1 of Article IIIdiminution of salary and life tenure-are coupled together in "place” and "purpose." (Evans v. Gore, supra.) It seems axiomatic that if the tenure of office and compensation provisions of Article III apply to a court created under the article, that by the same token the limitations and prescriptions as to jurisdiction shall also apply. This conclusion seems irresistible.

Following this reasoning, it ensues that if the United States Court of Customs Appeals was not created under the authority of Article III and, therefore, not subject to and limited by the provisions of the article, that there was no tenure of existence given to its judges by legislative act, nor extended to them by the Constitution, and it would be a mere administrative tribunal created under some indefinite powers of Congress, to be re-created, if its existence is deemed essential, at the beginning of each succeeding term of Congress, and its judges would be subjected to the very things the framers of the Constitution, in providing for inferior courts with similar jurisdiction, sought to provide against. (See Wilson's Constitutional Government in the United States, pp. 17, 142.)

Here it might be well to say that the legislative proceedings in connection with the establishment of this court disclose that the section of the act creating this court was not passed by the Congress without a decided division of sentiment. (See proceedings in the United States Senate and the Senate Finance Committee Report found on p. 4320 of vol. 44 of the Congressional Record of the 61st Cong., 1st sess., July 7, 1909.)

The force of the contention that the judges of the United States Court of Customs Appeals have life tenure by virtue only of Article

III of the Constitution is strengthened by the consideration of the fact that in the creation of the United States Circuit Court of Appeals and the United States District Courts, the judges also were given no definite tenure of office. (See U. S. Stat. L., vol. 26, p. 286, and R. S. (1878), sec. 551, p. 93.) Congress obviously relied upon the fact that Article III of the Constitution extended this tenure to them. As far as we know, it never has been contended anywhere that circuit courts of appeals and United States district courts were created under any other authority than Article III of the United States Constitution.

It is interesting to note, in this connection, that the Court of Claims was originally created to consider matters which were not "cases" and "controversies," and that its jurisdiction was advisory and ancillary only. (United States v. Klein, 13 Wall. 128, 144; In re Sanborn, 148 U. S. 222; Gordon v. United States, supra.) The Supreme Court of the District of Columbia and the Court of Appeals of the District of Columbia were expressly given a tenure during good behavior, by the statute which created them. (See act of March 3, 1863, 12 Stat. L., 762, and act of February 9, 1893, 27 Stat. L., 434.)

In McAllister v. United States, supra, the giving or withholding express tenure of office to a judge in creating a court by Congress was regarded as of controlling effect in determining the character of the court. In that case a Territorial judge, for the Territory of Alaska, was removed from office by President Cleveland, under the authority of a statute of Congress, before the expiration of the judge's term of office.

It was contended that the President had no authority and that Congress could give him no authority to remove a judge except in the constitutional manner. The Supreme Court held that he was a Territorial or legislative judge, and not a constitutional judge, and in the course of reaching this conclusion the court said:

For the reasons we have stated it must be assumed that the words "judges of the courts of the United States," in section 1768, were used with reference to the recognized distinction between courts of the United States and merely Territorial or legislative courts.

This view, it is contended, is not supported by the history of congressional legislation relating to the organization of courts in the Territories. We do not assent to this proposition. The acts providing for courts in the Territories of Orleans, Iowa, Minnesota, New Mexico, Utah, Colorado, Nevada, Dakota, and Arizona fixed the tenure of office for judges in those Territories, respectively, at four years. Those providing for courts in the Territories of Missouri, Arkansas, Florida, Oregon, Washington, Nebraska, Kansas, Idaho, Montana, Wyoming, and Oklahoma fixed the tenure of judges at four years, with the addition, in some cases, of the words, "unless sooner removed"; in others, of the words, "unless sooner removed by the President," or "and no longer," or "and until their successors shall be appointed and qualified," or "unless sooner removed

by the President with the consent of the Senate." Of course, Congress would not have assumed, in the acts providing for courts in the Territories named, to limit the terms of the judges, in the modes indicated, if it had supposed that such courts were courts of the United States of the class defined in the first section of article three of the Constitution, the judges of which hold, beyond the power of Congress to provide otherwise, during good behavior. Nor is the view that courts in the Territories are legislative courts, as distinguished from courts of the United States, weakened by the circumstances that Congress, in a few of the acts providing for Territorial courts, fixed the terms of the office of the judges of those courts during "good behavior." As the courts of the Territories were not courts the judges of which were entitled, by virtue of the Constitution, to hold their offices during good behavior, it was competent for Congress to prescribe the tenure of good behavior, as in the acts last referred to, or to prescribe, as in the other acts above referred to, the tenure of four years and no longer, or four years unless sooner removed, or four years unless sooner removed by the President, or four years unless sooner removed by the President with the consent of the Senate, or four years and until a successor was appointed and qualified. (Italics ours.)

The last above-cited case and this line of reasoning would seem to afford complete authority for the conclusion that in creating the Court of Claims and in providing for it a jurisdiction which did not measure up to the requirements of Article III Congress did not contemplate that its judges would have a life tenure by virtue of Article III, and that, since life tenure for its judges was desired, it was necessary to expressly grant it in the act. It follows that the express grant of life tenure in this and other creative acts was not an unintentional or unnecessary provision, but was an essential one, if life tenure was desired, and that such expression points unmistakably to the kind of courts created and to the source of the power invoked in their creation.

In considering the effect of the various expressions of the Supreme Court of the United States as affecting the issue here under consideration, we have not overlooked the following statement in Miles v. Graham (268 U. S. 501):

* It is equally clear, we think, that there is no power to tax a judge of a court of the United States on account of the salary prescribed for him by law.

We have also considered the possible deduction that might be drawn from this statement when considered with the finding of the court in the case of James v. United States (202 U. S. 401), or with the reference, by Chief Justice Taft, to "United States Judges" in the great recent case of Myers v. United States (272 U. S. 52, 155). We think, however, that the use of the words "a court of the United States," in the Miles case, had reference to such an inferior court as comes within the provisions of Article III.

Without citing all the authorities pertinent, we think that Congress may, by appropriate legislation, so change the jurisdiction and powers of a judicial tribunal, which is not an inferior court, as to