Page:U.S. Department of the Interior Annual Report 1881.djvu/34

XXXII The necessity for additional room for the Patent Office is becoming more urgent every year. With the present limited space at the disposal of the office, rooms are overcrowded, and proper disposition cannot be made of the files and records which are yearly accumulating. It has been found absolutely necessary to occupy a portion of the newly constructed model hall in the west wing both for the clerical force and for the accommodation of the files. There can be no relief from this condition of affairs until additional room shall be provided elsewhere for some of the other bureaus whose necessities for more room are quite as urgent as those of the Patent Office.

The question, how far the Secretary of the Interior has controlling or appellate power over the Commissioner of Patents has been from time to time presented to the department by parties in interest, invoking the supervisory powers of the Secretary in cases decided by or pending before the Commissioner.

Secretary Chandler, under date of March 9, 1876, decided that no power was vested in him to review the decisions "honestly" made by the Commissioner of Patents in cases within his jurisdiction.

While claiming the right to exercise supervisory power over the administrative action of the Commissioner in the direction of executive duties, he expressly disclaimed all appellate jurisdiction over his judicial actions.

In this opinion he says:

"I am unable to learn that any appellate jurisdiction has ever been exercised or claimed by any Secretary of State or of the Interior Department over the judicial action of the Commissioner of Patents since the creation of the office by act of July 4, 1836."

My immediate predecessor, Secretary Schurz, under dates of September 13, 1877, April 29, 1878, and June 25, 1879, concurred substantially in this opinion.

In the opinion rendered September 13, 1877, my predecessor, while holding that he had no right to examine into the merits of an application for a patent or to review the judicial action had thereon, used the following language:

I think it is quite clear that the supervision and direction with which the Secretary of the Interior is charged means something more than an approval of the act of the Commissioner of Patents. The responsibility of seeing that the work is properly done by the Commissioner of Patents is with the Secretary of the Interior. This includes negative as well as affirmative acts.

The Commissioner of Patents is to "superintend or perform all duties respecting the granting and issuing of patents," but these duties are to be performed under the direction of the Secretary of the Interior.

If the Commissioner neglects or refuses to perform any duty required by law to be performed by him under the direction of the Secretary of the Interior or performs a ministerial or administrative duty improperly, I am of the opinion that the Secretary of the Interior, by virtue of his supervisory power, may direct him in its performance. To be charged with the responsibility of the supervision and direction of any kind of work or business by law, and not be able to require that it shall be in accordance with the law would be anomalous indeed.