concurring: I agree with the result of the prevailing opinion to the effect that the Board must proceed to determine the liability of the petitioners, but I base my conclusion upon a totally different theory.
The petitioners have come before this body raising a single issue— that of the constitutionality of section 280, and both parties insist the Board has the power to decide this issue. As I read the authori*1281ties relied upon to sustain the prevailing opinion, the reasons for the decisions therein seem to me to have no application here, and I deem it the duty of the Board to meet the issue, rather than attempt to find means to evade it. The issue raised is not peculiar to this class of cases, and is one which is constantly recurring.
I am not concerned, primarily, with the question whether or not section 280 of the Revenue Act of 1926 is constitutional. It is my opinion that the Board must assume the section to be constitutional until the courts have determined it to be unconstitutional, and that the Board is without authority to pass upon such a question. It is not my intention to enter into a lengthy discussion of my reasons for such belief or to discuss authorities which I believe sustain my position, but rather to set down briefly the reasons which impel my conclusion.
Article III, section 1, of the Constitution provides, in part, as follows:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. * * *
It can not be contended that by the creation and continuance of the Board of Tax Appeals, the Congress created or intended to create, a court. On the contrary, that body expressly places the Board under the executive department of the Government. In Williamsport Wire Rope Co. v. United States, 277 U. S. 551, Mr. Justice Brandeis said:
The Board is an independent agency. By the specific provisions of the Revenue Act of 1924, c. 234, No. 900 (k), 43 Stat. 253, 338, it was defined as an agency in the executive branch of the government. Compare Goldsmith v. Board of Tax Appeals, 270 U. S. 117, 121-122. Its sole function consists in reviewing on appeal, determinations of the Commissioner under the revenue lames. (Italics supplied.)
Under our form of government, the exercise of the executive, legislative, and judicial powers is vested in separate and independent branches, and these separate branches have only the powers granted them, which may not be delegated. The Constitution provides that “ all legislative power herein granted shall be vested in a congress of the United States,” that “the executive power shall be vested in a president of the United States of America,” and that “ the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as Congress may from time to time ordain and establish.” In our Government as constituted, the separation of powers is not complete. Each of these departments of Government exercises powers, which, in their essential nature, would not belong to it. The general principle regarding the exer*1282cise of the powers of one department by another is stated in Will-oughby on the Constitution, sec. 743, as follows:
Thus it is not a correct statement of the principle of separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fall within its division of governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate functions.
Prom the rule, as thus stated, it appears that in very many cases the propriety of its exercise of a power by a given department does not depend upon whether, in its essential nature, the power is executive, legislative, or judicial, but whether it has been specifically vested by the Constitution in that department, or whether it is properly incidental to the performance of the appropriate functions of the department into whose hands its exercise has been given.
Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive, or judicial, it lies within the authority of the legislature to determine where its exercise shall be vested.
The question, then, would seem to be, Where has the Constitution specifically placed this power, or, in which department is it properly incidental to the performance of the appropriate functions of that department?
We have seen that the Congress did not create the Board of Tax Appeals as an inferior court, and therefore it did not, even assuming that it had the power to do so, vest the Board as a branch of the executive department, with any of the judicial power of the United States in a constitutional sense. I take it that since the decision of Chief Justice Marshall in Marbury v. Madison, 1 Cr. 137, it has always been held that the power to declare an act of Congress unconstitutional is peculiarly and distinctly a judicial power. If, therefore, the Board is not a court and exercises no part of the judicial power of the United States in a constitutional sense, and if the power to declare a law unconstitutional is exclusively a judicial power, I am at a loss to understand from what source of power the Board could assume to decide the issue raised.
As I have stated above, I think the Board must in all cases assume a statute to be constitutional, and proceed to a determination upon that theory.
SiefkiN agrees with this opinion.