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gress and established standards which operated to exclude teas which would have been entitled to admission had proper standards been adopted is a question we are not called upon to consider. The sufficiency of the standards adopted by the Secretary of the Treasury was committed to his judgment, to be honestly exercised, and if that were important, there is no assertion here of bad faith or malice on the part of that officer in fixing the standards or on the part of the defendant in the performance of the duties resting on him.

In Union Bridge Co. v. United States, decided in 1907, the general doctrine relating to the delegation of legislative power is again extensively considered, the court in this case sustaining the constitutionality of a statutory grant to the Secretary of War of authority to require changes or alterations in bridges over navigable water ways of the United States when, after a hearing of the parties interested, he is satisfied that the structure as erected or contemplated constitutes or will constitute an unreasonable obstruction to navigation. After a review of the cases, the court declare the statute in entire harmony with the principles announced in them. To deny to Congress the authority thus to delegate to the executive branch of the government the exercise in specific instances of a discretionary power which, from the nature of the case, Congress could not itself exercise, would be, the court say, " to stop the wheels of government, and bring about confusion, if not paralysis, in the conduct of the public business.

In St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor it was held that legislative power had not been granted to the American Railway Association and the Interstate Commerre Commission by the Safety Appliance Act of 1893, which forbids the use


7 204 U. S. 364; 27 Sup. Ct. Rep. 307; 51 L. ed. 523.

8 The requirement that alterations shall be made is not, the court go on to hold, a taking of private property for a public use, for which compensation must be made, but is a proper measure incidental to the regulation of com. merce among the States.

9 210 U. S. 281; 28 Sup. Ct. Rep. 616; 52 L. ed. 1061.

of only such cars as have drawbars of uniform height, and empowers the Association to fix and the Commission to declare, the standard.

8 778. Delegation of Rate-Making Powers.

That the fixing of the rates or charges that may be collected by public service corporations for the services rendered by them is, primarily at least, a legislative function, is so well established that the citation of authorities is scarcely necessary. Indeed, it was originally held in Munn v. Illinois' that this power was so exclusively legislative that the validity of the laws in regulation of business affected with a public interest could not be questioned by the courts under the due process of law clauses of the Constitution.12

In the States the delegation by the legislative body, to commis sions or other boards, of authority to fix rates has been generally sustained where by law general principles have been established for the guidance and control of these administrative bodies in the exercise, in specific instances, of their rate-making powers.

In a number of instances these laws have come before the Supreme Court of the United States, but not in such a way as to compel that court to pronounce squarely upon their constitutionality as tested by the principle that legislative power may not be delegated by the law-making body to an administrative board or commission. And, indeed, this is a question of state constitutional law with which the federal courts have no concern. It is only when the allegation is made that the rates as fixed, whether directly by the legislature or by another authority, are confiscatory, and, therefore, operate to deprive either the railway or the shipper of property without due process of law, that a federal question is raised.

10 In Atlantic C. L. R. Co. v. North Carolina Corp. Com. (206 U. S. 1; 27 Sup. Ct. Rep. 585; 51 L. ed. 933) a long list of cases as to this are cited in a footnote. See also the valuable monograph of Mr. R. P. Reeder entitled " Rate Regulation as Affected by the Distribution of Governmental Powers in the Constitutions.”

11 94 U. S. 113; 24 L. ed. 77. 12 See Chapter XLVI.

It is true, however, that the Supreme Court in a number of instances has intimated that the rate-making power may be delegated, but these cannot be said to be precedents, or indeed to indicate with any decisiveness what the position of that tribunal will be when the point is brought squarely before it.

That a considerable amount of regulative control over railways may constitutionally be delegated to the Interstate Commerce Commission has not been disputed. It was not until the act of 1906, however, that that body was intrusted by Congress with the authority to fix in specific instances the rates that interstate railways might charge. By that law it is provided that the rates which these companies may legally fix, or which may be fixed for them by the Commission, must be “just and reasonable.” This is, practically, the only principle legislatively laid down for the guidance and control of the Commission. The question, therefore, which still awaits final judicial settlement by the Supreme Court is whether this provision of the law may fairly be said to lay down a sufficiently definite rule which the Commission is merely to apply to specific cases as they arise, to warrant the determination that that body has not been endowed with a discretionary power of fixing rates which is in fact legislative. The opinion may, however, be hazarded that, arguing from Field v. Clark, Buttfield v. Stranahan, and l'nion Bridge Co. v. United States, the act of 1906 will be sustained. 12a

§ 779. The Referendum as a Delegation of Legislative Power.

As to whether the so-called “referendum ” employed in some of the States is an unconstitutional delegation by the legislature of law-making powers to the people, there is a conflict of authorities. The weight of authority would, however, seem to be that

12a Indeed, in Interst. Com. Com. v. Chicago, R. I. & Pac. Ry., and Interst. Com. Com. v. C., B. & Q. R. R., decided May 31, 1910, the rate-making powers of the Commission seem to be accepted without constitutional question.

the submission to the electorate of the entire State as to whether a measure shall or shall not become a law is void.13

8 780. Administrative Ordinances.

The authority that administrative agents may constitutionally exercise in the promulgation of rules and ordinances regulating in detail the execution of the laws the enforcement of which has been placed in their hands, and the legal force to be given to these rules thus administratively established, has given rise to many adjudications. These rules, it is to be observed, fall into two general classes. First, those established by an administrative superior and directed solely to the administrative inferior; secondly, those binding of course the administrative inferiors, but frimarily directed to the private citizen, and fixing the manner in which the requirements of the statute are to be met by him. This second class of rules is, in turn, divisible into two classes ; those to which a criminal penalty is attached for their violation, and those merely defining the manner in which rights created by the statute are to be enjoyed.

The first of these two main classes of administrative ordinances differ from those of the second class in that though valid as between the administrative superior and his inferior, they do not create legal rights which the private citizen may enforce in the courts. Of this class, for example, are certain of the civil service regulations which the Presidents of the United States have issued under authority of the Civil Service Acts, fixing the classes to be included in the “ classified service," providing for examinations for admission to the service, and declaring the conditions under which promotions and removals may be made.

As to those rules or ordinances, established by executive agents, providing the modes under which private persons may receive the privileges granted by law or be held responsible for violations of the duties imposed therein, it may in general be said that the executive may establish all special regulations that fall within

13 In re Municipal Suffrage, 160 Mass. 566; Santo v. Iowa, 2 Iowa, 165. Cf. Oberholtzer, The Referendum in America; Cooley, Const. Lim., 7th ed., 168.



the general field of the authority granted by law, and which are reasonably calculated to secure the execution of the legislative will as laid down in the statutes.

With reference to many of the Army and Navy Regulations issued by the President it is to be observed that these derive their force not from congressional authorization, but directly from the constitutional power of President as Commander-in-Chief of the army and navy; and this, too, notwithstanding the constitutional provision that Congress may make rules for the government and regulation of the land and naval forces. In the early case of United States v. Eliason4 the court say: “ The power of the executive to establish rules and regulations for the government of the army, is undoubted.

Such regulations cannot be questioned or denied because they may be thought unwise or mistaken."

An administrative officer in the execution of his duties may not change the express provisions of the law, even though these provisions no longer secm the best adapted to secure the end desired by Congress. Thus in Merritt v. Welsh a customs officer was not permitted to substitute a different test from that fixed by Congress for the determination of the quality of imported sugars. “If experience shows," the opinion declares, “ that Congress acted under a mistaken impression, that does not authorize the Treasury Department or the courts to take the part of legislative guardians and, by construction, to make new laws which they imagine Congress would have made had it been properly informed, but which Congress itself, on being properly informed has not, as yet, seen fit to make.”

Thus again, in Morrill v. Jones the court say: “The Secretary of the Treasury cannot, by his regulations, alter or amend a revenue law. All he can do is to regulate the mode of proceeding to carry into effect what Congress has enacted. In the present case, we are entirely satisfied the regulation acted upon by the

14 16 Pet. 291; 10 L. ed. 968. 15 104 U. S. 694; 26 L. ed. 896. 16 106 C. S. 466; 1 Sup. Ct. Rep. 423; 27 L. ed. 267.

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