to determine whether she should be deported, although it was alleged that, because of her lack of knowledge of the English language, she did not understand the import of the questions propounded to her, and that, in fact, she did not know that these questions related to the matter of her possible deportation.

27

Where, from the nature of the case, the determination of the fact at issue, as, for example, the ascertainment of the character of a commodity, which character may be ascertained by comparing it with an established standard, it has been held that a hearing is not needed. And in Ekiu v. United States,27 earlier referred to, it will be remembered that it was held that the statute was held not to require inspectors to take testimony, but that they might decide upon their own inspection, whether an alien immigrant was entitled to enter the country; but that upon habeas corpus the question could be determined by the courts whether one prevented from landing had had an opportunity to ascertain whether his detention was lawful.

In Chin Low v. United States,28 however, a habeas corpus having been denied by the lower federal courts, the Supreme Court, upon appeal, held that the writ should have been issued for the determination of the allegation that the petitioner had been prevented by the administrative officials from obtaining the testimony of certain witnesses in her behalf. In its opinion the court is, however, careful to say that the only question before it is whether a fair opportunity to a hearing has been given the petitioner, and not the correctness of the determination. The court do, however, go on to say that in those cases in which it is determined that the action of the administrative body has been unfair, in that it has denied a fair hearing, it becomes the necessary duty of the court to determine whether, in fact, upon the merits of the case, the petitioner is entitled to enter. As to this the court say: "The decision of the Department is final, but that is on the presupposi

27 Public Clearing House v. Coyne, 194 U. S. 497; 24 Sup. Ct. Rep. 789; 48 L. ed. 1092.

27a 142 U. S. 651; 12 Sup. Ct. Rep. 336; 35 L. ed. 1146.

28 208 U. S. 8; 28 Sup. Ct. Rep. 201; 52 L. ed. 369.

tion that the decision was after a hearing in good faith, however summary in form. As between the substantive right of citizens to enter and of persons alleging themselves to be citizens to have a chance to prove their allegation, on the one side, and the conclusiveness of the commissioner's fiat on the other, when one or the other must give way, the latter must yield. In such a case something must be done, and it naturally falls to be done by the courts. The courts must deal with the matter somehow, and there seems to be no way so convenient as a trial of the merits before the judge. If the petitioner proves his citizenship, a longer restraint would be illegal. If he fails, the order of deportation would remain in force."

§ 759. Arbitrary Administrative Discretion.

Generally speaking, it may be said that while wide discretionary power may constitutionally be granted to administrative agents, that discretion must be one which must be guided by reason, justice, and impartiality, and must be exercised in the execution of policies predetermined by legislative act, or fixed by the common law.

In Yick Wo v. Hopkins29 the court laid down the doctrine that the legislative investment of purely personal and arbitrary power in the hands of any public official is a denial of due process of law. "The very idea," say the court, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." 30 Of the ordinances in question the court say: "They seem intended to confer and actually do confer, not a discretion upon consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not as to places but as to persons. The power given to them [the supervisors] is not confided to their discretion in the legal sense of that term, but is granted 29 118 U. S. 356; 6 Sup. Ct. Rep. 1064; 30 L. ed. 220.

30 Quoting and approving City of Baltimore v. Radecke, 49 Md. 217.

to their mere will. It is purely arbitrary, and acknowledges neither guidance, nor restraint."

66

as to

In fact, however, the court found in this case that the evidence showed that the ordinances in actual operation had been so exclusively directed against a particular class of persons warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they were applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the law which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States." And the court add, "Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.' The judgment of the court was that the petitioners could not be punished for a violation of the ordinances in question.

Taken by itself the language of the court, as will be seen by the quotations which have been made, indicate a view that in no case may an arbitrary discretionary power be granted to a public official which will compel any person " to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another." The force of this holding is, however, somewhat weakened by the fact that, as has been seen, the court found that, whatever the terms or intent of the ordinances in question, they had actually been administered in a grossly partial and unjust manner. And also, and more importantly, in the later case of Wilson v. Eureka City3 the court expressly upheld the constitutionality of an ordinance committing the right of the plaintiff with reference to the removal of a building owned by him, to the unrestrained discretion of a single official. The summary of 31 173 U. S. 32; 19 Sup. Ct. Rep. 317; 43 L. ed. 603.

cases in the State courts, given by the court in Re Flaherty,3: in which unrestrained discretion is sustained, is quoted with approval, the court declaring the discretionary power to be "based on the necessity of the regulation of rights by uniform and general laws a necessity which is no better observed by a discretion in a board of aldermen or council of a city than in a mayor, and the cases, therefore. are authority against the contention of plaintiff in error.'

"32

In this case it is certain that the Supreme Court commits itself to the doctrine that administrative officials may, in certain cases at least, be given a discretionary power to act according to their own unrestricted judgment as to what the circumstances require, and

31a 105 Cal. 558.

32 See also Davis v. Massachusetts, 167 U. S. 43; 17 Sup. Ct. Rep. 731; 42 L. ed. 71. The summary of cases given by the court in Re Flaherty is as follows:

"Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray, 161); forbidding orations, harangues, etc., in a park without the prior consent of the park commissioners (Commonwealth v. Abrahams, 156 Mass. 57), or upon the common or other grounds, except by the permission of the city government and committee (Commonwealth v. Davis, 140 Mass. 485); ‘beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written permission of the president of the village,' on any street or sidewalk (Vance v. Hadfield, 22 N. Y. 588); giving the right to manufacturers to ring bells and blow whistles in such manner and at such hours as the board of aldermen or selectmen may in writing designate (Sawyer v. Davis, 136 Mass. 239); prohibiting the erecting or repairing of a wooden building without the permission of the board of aldermen (Hine v. The City of New Haven, 40 Conn. 478); authorizing harbor masters to station vessels and to assign to each its place (Vanderbilt v. Adams, 7 Cow. 349); forbidding the occupancy of a place on the street för a stand without the permission of the clerk of Faneuil Hall Market (Nightingale, Petitioner, 11 Pick. 168); forbidding the keeping of swine without a permit in wing from the board of health (Quincy v. Kennard, 151 Mass. 563); forbidding the erection of any kind of a building without a permit from the commissioners of the town through their clerk (Commissioners, etc. v. Covey, 74 Md. 262); forbidding any person from remaining within the limits of the market more than twenty minutes unless permitted to do so by the superintendent or his deputy (Commonwealth v. Brooks, 109 Mass.

that, therefore, an ordinance or a law purporting to grant this authority is not, upon its face, void.

It may be predicted, however, that the grant of such arbitrary power will not be upheld except in those cases in which comparatively unimportant private interests are involved, or where the requirements of administrative efficiency demand the existence of such an authority. And, furthermore, the doctrine of Yick Wo v. Hopkins will of course apply in those cases where it is clearly shown that in fact the discretionary power which has been granted has been abused and oppressively or unfairly exercised.

In American School of Magnetic Healing v. McAnnulty as has been seen, a fraud order of the Postmaster-General was held not authorized by the statute under which the right to issue the order was claimed, the court holding that the law did not grant to the Postmaster-General a power to issue fraud orders except in cases where there was evidence, that is something more than the individual opinion of the Postmaster-General, to show that the business against which the orders might be issued is a fraudulent one. The statutory power of Congress, should it see fit, to vest in the Postmaster-General a general power to exclude from the use of the mails those concerns which in his judgment he might deem to be fraudulent was thus not involved or passed upon.

§ 760. Mandamus.

In an earlier chapter of this treatise it has been pointed out that the courts will not by mandamus or other writ attempt to control the exercise by executive or administrative agents of a discretion given them by the Constitution or statutes. This, as we have seen, excludes from the field of judicial review all those acts which, as political in character, are purely discretionary. It also excludes an attempt upon the part of the courts to control all other administrative and executive acts in so far as there is possessed by those officials intrusted with their performance, a discretion as to how the acts shall be performed at all. Where, however, an act, not purely political in character, is by law required of an officer, the per33 187 U. S. 94; 23 Sup. Ct. Rep. 33; 47 L. ed. 90.