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CHAPTER LXV.

THE DELEGATION OF LEGISLATIVE POWER.

$ 773. Delegated Power May not be Delegated.

“One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, tl:ere it must remain, and by that constitutional agency alone the laws. must be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.” 1

The principle as thus absolutely stated is subject to one important exception, and to several qualifications, or at least explanations.

$ 774. Local Governing Powers May be Delegated.

The exception is with reference to the delegation of powers to local governments. The courts have held, as to this, that the giving by the central legislative body of extensive law-making powers with reference to local matters to subordinate governing bodies being an Anglo-Saxon practice, antedating the adoption of the Constitution, and the right of local self-government being so fundamental to our system of politics, our Constitutions are, in the absence of any express prohibitions to the contrary, to be construed as permitting it.”

1 Cooley, Constituiional Limitations, 7th ed., 163,

2“ It seems to be generally conceded,” the court say in State v. Noyes (30 N. H. 279), “ that powers of local legislation may be granted to cities, towns, and other municipal corporations and it would require strong reasons to satisfy us that it could have been the design of the framers of our Constitution to take from the legislature the power which has been exercised in Europe by governments of all classes from the earliest history, and the exercise of which has probably done more to promote civilization than all the other causes combined; which has been constantly exercised in every part of our country from its earliest settlement, and which has raised up among 113 many of the most valuable institutions." Cf. Cooley, Const. Lim., 7th ed., 265, note, and authorities there cited.

$ 775. Power to Issue Administrative Ordinances May be Dele

gated. The qualifications to the rule prohibiting the delegation of legislative power which have been earlier adverted to are those which provide that while the real law-making power may not be delegated, a discretionary authority may be granted to executive and administrative authorities: (1) To determine when and how the powers conferred are to be exercised; and (2) to establish administrative rules and regulations, binding both upon their subordinates and upon the public, fixing in detail the manner in which the requirements of the statutes are to be met, and the rights therein created to be enjoyed.

The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public poliey, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it is its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different or no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed. Thus in Locke's Appeal the court say: “ To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know.

3 72 Pa. St. 491.

The court cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.” 4

§ 776. Field v. Clark.

The doctrine thus declared is without objection so long as the facts which are to determine the executive acts are such as may be precisely stated by the legislature and certainly ascertained by the executive. When this is not so, the officer intrusted with the execution of the law is necessarily vested with an independent judgment as to when and how the law shall be executed; and when this independence of judgment is considerable there is ground for holding that the law is not simply one in presenti to take effect in futuro, but is a delegation by the law-making body of its legislative discretion. This was one of the points especially urged in the leading case of Field v. Clark. By the third section of the Tariff Act of October 1, 1890, it was provided that, with a view to securing reciprocal trade,“ whenever and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States, he may deem to be reciprocally unequal and unreasonable, he shall have the power, and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for such time as he shall deem just.” The provision which has been quoted, it was argued, exhibited an endeavor on the part of Congress to vest in the President an unconstitutional discretionary power as to when certain taxes should and when they should not be levied and collected. The Supreme Court, however, upheld the grant of power, saying, with reference to the provision in question: “It does not in any real sense, invest the President with the power of legislation.

4 Quoted and approved in Field v. Clark, 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

6 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

Congress itself prescribed in advance, the duties to be levied, collected and paid, on sugar, molasses, coffee, tea, produced by or exported from such designated country, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. The words, he may deem' in the third section, of course, implied that the President would examine the commercial regulations of other countries producing and exporting sugar, molasses, coffee, tea, and hides, and from a judgment as to whether they were reciprocally equal and reasonable, or the contrary, in their effect upon American products. But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress.

* The true distinction,' as Judge Ranney, speaking for the Supreme Court of Ohio, has well said, 'is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. Cincinnati, W. & Z. R. Co. v. Clinton County Comrs., 1 Ohio St. 88.'

$ 777. Other Illustrative Cases.

The question when an administrative discretion is so broad as to amount to a legislative power is one that may not be answered according to any fixed formula, but one that has to be answered in each individual case according to the judgment of the court. During recent years, with the increase of governmental functions, both in number and complexity, and especially with the extension of the law's control over matters of industrial and technical interest, the delegation to administrative agents and in particular to boards or commissions, of wide spheres of discretionary action, has become a necessity. This in turn has given rise to a very great number of cases in both the federal and state courts in which it has been alleged that legislative power has been unconstitutionally delegated. In this treatise it will be clearly impossible to consider more than a few of the more recent and more important cases in which the question has been considered by the Supreme Court of the United tSates. These will, however, be sufficient to illustrate and exhibit the general principle.

In Buttfield v. Stranahan, decided in 1904, the court held valid the grant by Congress to the Secretary of the Treasury of authority to establish standards, upon recommendation of a board of experts, by which should be determined the purity, quality, and fitness for consumption of teas sought to be imported into the United States, and to exclude from importation such teas as should not satisfy these requirements as provided by law. “We are of opinion,” say the court, “ that the statute, when properly construed

but expresses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute." “Whether or not,” the court add, “the Secretary of the Treasury failed to carry into effect the expressed purpose of Con

6 192 U. S. 470; 24 Sup. Ct. Rep. 319; 48 L. ed. 525.

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