...

persons and provide no similar accommodations for negroes. The reasoning is that there may not be enough persons of African descent seeking these accommodations to warrant the outlay in providing them. . . . This argument with respect to volume of traffic seems to us to be without merit. It makes the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor, but, if facilities are provided, substantial equality of treatment of persons travelling under like conditions cannot be refused."

Justice Hughes expressed, however, the opinion of the Court that the allegations of the complainants showed no discrimination in fact against the constitutional rights of any of them, and the Circuit Court's denial of injunctive relief was affirmed without dissent.

CHAPTER XIV

STANDARDS OF OFFICIAL RESPONSIBILITY AND THE EFFICIENCY OF ADMINISTRATIVE ADJUSTMENTS

In a number of opinions prepared by Justice Hughes there seems to be discernible a very definite concept of the standards of official discretion, duty and responsibility,.and of the expedients which make administrative mechanisms workable and efficient. In the United States against Citroen,1 after laying down an interpretation of certain puzzling sections of the Tariff Act of 1897, in harmony with the known facts of the trade and the policy embodied in former tariff legislation, he added: "Such an interpretation provides a simple and workable test, permitting certainty and impartiality in administration which should pre-eminently characterise the operation of tariff laws, and fulfils, as we believe, the purpose of Congress." In Collins against Kentucky, his voice was raised in condemnation of a penal statute which "prescribed no standard of conduct that it was possible to know," a statute which "violated the fundamental principles of

1223 U. S. Reports, page 424. 234 U. S. Reports, page 634.

justice... in compelling men on peril of indictment to guess" as to facts not ascertainable. In the United States against Smull, the United States District Court had held that a false affidavit, made before a receiver of the Land Office, that the applicant had not theretofore made any entry under the homestead laws, did not warrant indictment of the affiant for perjury, inasmuch as the taking of any such oath was not authorised or required by any Act of Congress, but only by a regulation of the Land Department. Justice Hughes cut straight through this claim by which the maker of a false oath for the purpose of defrauding the Government was to go unpunished; he held that knowingly swearing falsely to an affidavit required by an authorised regulation of the Land Department as fully sustained a charge of perjury as though the oath had been explicitly required by the wording of an Act of Congress.

In the United States against Birdsall, a similar edifice of circumlocution had been reared to persuade the United States District Court that Birdsall was not guilty of bribery. The District Court let Birdsall go free. Justice Hughes, on the contrary, gave efficacy to the anti-bribery statute. He held that "every action that is within the range of official duty comes within the purview of" the anti-bribery sections, and that "to constitute it official ac

1236 U. 8. Reports, page 405. 233 U. 8. Reports, page 223.

tion, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the department under whose authority the officer was acting. . . . Nor was it necessary that the requirement should be prescribed by a written rule or regulation. It might also be found in an established usage which constituted the common law of the department and fixed the duties of those engaged in its activities. . . . In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the above-mentioned statutes against bribery." And Justice Hughes was one of the Justices concurring in that classic opinion sustaining the validity of President Taft's order withdrawing from 'public entry, without Congressional sanction, vast areas of public lands on which oil had been discovered, in which the Court declared that

government is a practical affair intended for practical men. Both officers, lawmakers and citizens naturally adjust themselves to any long-continued action of the Executive Department-on the presumption that unauthorised acts would not have been allowed to be so often repeated as to crystallise into a regular practice. That presumption is not reasoning in a 1U. 8. vs. Midwest Oil Co. (236 U. B., 459).

circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight should be given to the usage itself-even when the validity of the practice is the subject of investigation.

Perhaps there is an inkling, also, of an outlook upon problems of discipline and departmental authority in the Army and Navy, in a decision like that in the United States against Ross,' where Justice IIughes said: "If in the practical judgment of the military authorities, the efficient management of a general hospital requires the maintenance of both a telephone and telegraph office, we know of no reason for 'making a judicial determination based upon a contrary assumption.' Certainly the question was one calling in the first instance for the prac tical judgment of the Department. In the conduct of an institution like a general hospital... there is every reason for caution, and for the exercise of careful official judgment. ... We are asked to overrule this departmental judgment. . . . We find no basis for such action." Justice Hughes added that the Court was not at liberty to do any such thing "unless there is a clear abuse of the necessary official discretion. No such abuse is shown here." Likewise in Reaves against Ainsworth, 1239 U. S. Reports, page 530. 219 U. 8. Reports, page 296.

OFFICIAL RESPONSIBILITY

225

a unanimous Court declared, on a question of the retirement of an Army officer:

The courts have no power to review. The courts are not the only instrumentalities of government. They cannot command or regulate the army. To be promoted or to be retired may be the right of an officer, the value to him of his commission, but greater even than that is the welfare of the country, and, it may be, even its safety, through the efficiency of the army. . . . If it had been the intention of Congress to give to an officer the right to raise issucs and controversies with the board upon the elements, physical and mental, of his qualifications for promotion and carry them over the head of the President to the courts, and there litigated, it may be, through a course of years, upon the assertion of error or injustice in the board's rulings or decisions, such intention would have been explicitly declared. The embarrassment of such a right to the service, indeed the detriment of it, may be imagined.

Elsewhere in the same opinion the Court

said:

What is due process of law must be determined by circumstances. To those in the military or naval service of the United States the military law is due process. The decision, therefore, of a military tribunal acting within the scope of its lawful powers cannot be reviewed or set aside by the courts.