In some cases the courts may go behind the execution of statutory power by an execu tive officer as: Where, a statute authorizing the summary killing of diseased animals, with no provision for compensation to the owner, an adjudication of the cattle com missioners is not conclusive and an order is sued by them for killing an animal, not in fact infected, is no defense to those executing the order in a subsequent action by the own er for compensation ; Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850; so in case of the destruc tion of property when required to secure the public safety, where them is a statute au thorizing it, the destruction of the property is conclusive, so far as the res is concerned ; Salem v. R. Co., 98 Mass. 431, 96 Am. Dec. 650 ; but the right is preserved to the owner for a hearing in a subsequent proceeding for compensation; Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850.
In other cases the courts will not go behind the decision of the officer charged with the execution of a statute as, under the Chinese exclusion and immigration laws, the finding of the designated officer, when approved on appeal by the secretary of commerce and la bor, will not be reviewed by the courts, but is treated by them as final and conclusive ; U. S. v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040.
The executive powers which are derived directly from the constitution would still re main if all the legislative acts of congress were repealed. As to these the president ig clothed with unrestrained discretion, and his acts in pursuance of them are purely politi cal. He cannot be controlled nor can his pow ers be enlarged or diminished by legislation, though through the medium of proper laws he may be aided in the performance of the duties thus imposed upon him. For example, an attempt to limit the pardoning power or control its effect has been held unconsti tutional, where the supreme court having de dared that the power of the president dis pensed with the necessity of proof of loyalty in cases authorizing claims for the value of property seized as captured or abandoned during the war ; congress subsequently en acted that such proof should be required ir respective of any executive pardon or am nesty. This the court held unconstitutional, saying:—"Now it is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by 'the provision under consideration. The court is required
to receive special pardons as evidence of guilt and to treat them as null aiid void. It is re quired to disregard pardons granted by proc lamation on condition, though the condition has been fulfilled, and to deny them their le gal effect. This certainly impairs the execu tive authority and directs the court to be in strumental to that end." U. S. v. Klein, 13 Wall. (U. S.) 128, 148, 20 L. Ed. 519. But when a claim was made against the govern ment for payment for supplies furnished be fore the war, it was held that the prohibitory legislation of congress prevented a recovery, because the disability of the claimant to re ceive it debt from the United States did not arise as a consequence of any offence but out of a state of war; and ended with the close of the war, and not by reason of the pardon, which operated only to relieve him from pun ishment for his acts and gave him no new rights ; Hart v. U. S., 118 U. S. 62, 6 Sup. Ct. 961, 30 L. Ed. 96.
The question has been considered from time to time of the extent of the power of the pres ident over newly acquired territory. After the acquisition of territory it has been gen erally considered in countries governed by the English law that the temporary powers of government are vested in the executive un til it is assumed by the legislative branch of the government ; Cowp. 204 ; Leitensdorfer v. Webb, 20 How. (U. S.) 176, 15 L. Ed. 891; Cross v. Harrison, 16 How. (U. S.) 164, 14 L. Ed. 889, where after the Mexican war the exercise by the president of what were really legislative powers, in relation to customs, was sustained by the supreme court. And after the acquisition of the canal zone on the Isth mus of Panama, in the absence of congres sional action with respect to its government, the president exercised all the power of gov ernment. See 21 Harv. L. Rev. 547, where this subject is discussed and the conclusion reached that the action of the president was warranted.
As to his express powers the president is equally independent of the courts and can be held for maladministration of them only by impeachment; Marbury v. Madison, 1 Cra. (U. S.) 165, 2 L. Ed. 60 ; Kendall v. U. S., 12 Pet. 524, 9 L. Ed. 1181; U. S. v. Kendall, 5 Cra. C. C. 163, Fed. Cas. No. 15,517.
The command of the army and navy is es sentially an executive power ; 2 Sto. Const. § 149; 2 Kent 282; though it did not pass without criticism ; 2 Elliot, Deb. 365 ; 3 id.