as much so as if it would have

personal judgment is required been in passing upon the case, if he had been one of the members of the court martial itself. He may call others to his assistance in making his examination, and in informing himself what ought to be done, but his judgment when pronounced must be his own judgment and not that of another."

§ 677. Administrative Appeals.

The courts have laid down the general doctrine that where a power of supervision and direction is given to an administrative superior, this power may be exercised either by way of direct order, or by entertaining appeals from the acts of subordinates.

In Knight v. United States Land Association15 the court, construing a law requiring that certain things be done under the direction of the Secretary of the Interior, quotes with approval the following from an opinion of the Secretary:

"The statutes in placing the whole business of the department under the supervision of the Secretary, invest him with authority to review, reverse, amend, annul, or affirm all proceedings in the department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties. Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exercised in the absence of statutory direction may be prescribed by such rules and regulations as the Secretary may adopt. When proceedings affecting titles to lands are before the department the power of supervision may be exercised by the Secretary, whether these proceedings are called to his attention by formal notice or by appeal. It is sufficient that they are brought to his notice. The rules prescribed are designed to facilitate the department in the despatch of business, not to defeat the supervision of the Secretary. For example, if, when a patent is about to issue, the Secretary should discover a fatal defect in the proceedings, or that by reason of some newly ascer15 142 U. S. 161; 12 Sup. Ct. Rep. 258; 35 L. ed. 974.

tained fact the patent, if issued, would have to be annulled, and that it would be his duty to ask the Attorney-General to institute proceedings for its annulment, it would hardly be seriously contended that the Secretary might not interfere and prevent the execution of the patent. He could not be obliged to sit quietly and allow a proceeding to be consummated which it would be immediately his duty to ask the Attorney-General to take measures to annul. It would not be a sufficient answer against the exercise of his power that no appeal had been taken to him and therefore he was without authority in the matter."

16

This case is quoted and approved in Orchard v. Alexander.' In that case the court say: "Of course, this power of reviewing and setting aside the action of the local land officers is, as was decided in Cornelius v. Kessel (128 U. S. 456; 9 Sup. Ct. Rep. 122; 32 L. ed. 482) not arbitrary and unlimited. It does not prevent judicial inquiry. (Johnson v. Towsley, 13 Wall. 72; 20 L. ed. 485.) However, the court goes on to observe, it is competent for Congress to give finality to the determinations of subordinate administrative officers, provided due process of law, that is notice and a hearing, is provided. In Butterworth v. United States (112 U. S. 50; 5 Sup. Ct. Rep. 25; 28 L. ed. 656) it was held that the Secretary of the Interior had, under the statutes, no power to revise the action of the Commissioner of Patents in awarding to an applicant priority of invention and adjudging him a patent. But this was on the ground that the law expressly provided for an appeal from the Commissioner to the Supreme Court of the District of Columbia, whose decision should 'govern the further proceedings in the case.'

Generally speaking, it has been held that no appeal lies to the President from the heads of the great Departments at Washington. This is upon the ground that the acts of these administrative chiefs are held to be the acts of the President." It may be ob served, however, that in the several States of the Union the heads of the administrative departments have, commonly, no powers of

16 157 U. S. 372; 15 Sup. Ct. Rep. 635; 39 L. ed. 737.

17 Opinions of Atty. Gen. IX, 462; X, 526.

direction, and, therefore, that there is no general right of appeal to them.

§ 678. Administrative Decentralization in the States

In general it may be said that the administrative systems of the States are much less centralized than that of the United States. As contrasted with the federal system the governors have no general powers of removal of public agents from office, nor are they given supervisory and directory power over the various administrative departments and boards of the state governments. Furthermore, each of these several departments and boards are thus not only not integrated into a single system under a single head, but each of them individually exhibit slight administrative integration.

§ 679. Increasing Integration of Federal Administration.

The federal administrative system has exhibited a steady increase in integration. In the earlier years subordinate administrative officials were accustomed to act in individual cases without feeling themselves bound to consult the judgment of those higher in office, nor did they hold themselves necessarily bound by directions from such source. The principle followed by them was that they, as well as those in higher position, derived their authority by direct grant from Congress and were subject to control and direction only by that body or by the courts. The necessities of efficient government have, however, compelled Congress to place express powers of control over their subordinates in the hands of administrative chiefs, and have persuaded the courts to recognize, whenever possible, the existence of these supervisory powers even where express statutory provision has not been made for their exercise. Professor Goodnow, commenting on this development, says: "At the present time the collectors of the customs would hardly think of attempting to apply a law in a doubtful case without first receiving instructions from the Secretary of the Treasury (Rev. St., § 2652) and the law makes an appeal from the collector of internal revenue to the Treasury Department neces

sary before the aggrieved party has any standing in court. Rev. St., 3226. This was the case also in the customs administra§ tion until the passage of the customs administrative law of 1890 which took away the administrative remedy of appeal to the Secretary of the Treasury and provided an appeal to the general appraisers. The same thing is true in many cases in the Department of Interior (Rev. St., § 2273). Finally it has been held that the head of a department may change the erroneous decision of a subordinate (U. S. v. Cobb, 11 Fed. Rep. 76) and that any person aggrieved by the refusal of a subordinate to obey the order of the head of a department may obtain from the proper court a mandamus to force the subordinate to obey such order. Miller v. Black, 128 U. S. 50." 18

§ 680. Administrative Interpretations.

In the interpretation of the law one administrative officer is not bound by that given to it by his predecessors. He will not, however, disturb the application of the law that has been made in a given case. That determination he will not reverse or alter.19 In an opinion upon this point the Attorney-General has observed that if a decision in a case made years before under a former executive were open to review and revisal, the same principle would open decisions made during the Presidency of Washington, and the acts of the Executive would be kept perpetually unsettled and afloat.

In subsequent cases of a similar nature, however, a different rule may be applied, though it would seem that this rule thus newly laid down could not be made to govern cases where action has already been taken by individuals relying upon the rule formerly recognized.

§ 681. Administrative Regulations.

The authority on the part of an administrative officer to issue a regulation carries with it as the court say in United States v.

18 American Administrative Law, p. 142.

19 Opinions of the Atty.-Gen., II, 8.

20 16 Pet. 291; 10 L. ed. 968.

Eliason20"the power to modify or repeal, or to create anew." This power to amend or repeal an order already issued and in force may not, however, be so exercised as to violate a vested right of an individual;21 nor may a newly adopted administrative rule be made retroactive so as to impair private rights.22

It would appear, however, especially from the case of Dunlap v. United States23 that the right of an individual to a privilege created by law may sometimes be defeated by the failure of the proper administrative office to make regulations determining the manner in which, and circumstances under which, the right in question may be enjoyed. It is possible, however, that this is true only in those cases in which it would appear that the legislature has vested the executive with discretionary power to determine when the circumstances are appropriate for granting the right in question. In the case referred to the court held that under an act of Congress which granted a rebate or repayment of tax on alcohol used in the fine arts by a manufacturer under regulations to be prescribed by the Secretary of the Treasury, no claim for such rebate could be made because the Secretary had not made any regulations for such use. The court in its opinion say: "It seems clear that when Congress undertook to provide for refunding the tax on alcohol when used in the arts, it manifestly regarded adequate regulations to prevent loss through fraudulent claims as an essential prerequisite, and may reasonably be held to have left it to the Secretary to determine whether or not such regulations could be framed, and, if so, whether further legislation would be required. It is true that the right to the rebate was derived from the statute, but it was the statute itself which postponed the existence of the right until the Secretary had prescribed regulations if he found it practicable to do so."

21 Campbell v. United States, 107 U. S. 407; 2 Sup. Ct. Rep. 759; 27 L. ed. 592.

22 United States v. McDaniel, 7 Pet. 1; 8 L. ed. 587. Cf. Goodnow, American Administrative Law, 145,

23 173 U. S. 65; 19 Sup. Ct. Rep. 319; 43 L. ed. 616.