any personal motive that might be alleged to have prompted his action, for personal motives cannot be imputed to duly authorized official conduct. In exercising the functions of his office, the head of an executive department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may at any time become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as intrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals. In the present case, as we have found, the defendant, in issuing the circular in question, did not exceed his authority, nor pass the line of his duty as Postmaster-General. The motive that impelled him to do that of which the plaintiff complains is therefore wholly immaterial. If we were to hold that the demurrer admitted, for the purpose of the trial, that the defendant acted maliciously, that could not change the law."

A fortiori it follows from the doctrine declared in Spalding v. Vilas that a public officer acting from a sense of duty in a matter where he is required to exercise discretion, is not liable to an action because of any error of judgment or mistake of fact that he may have made.

62

62 In Kendall v. Stokes (3 How. 87; 11 L. ed. 506) the court say:

"It repeatedly and unavoidably happens, in transactions with the government, that money due to an individual is withheld from him for a time, and payment suspended in order to afford an opportunity for more thorough examination. Sometimes erroneous constructions of the law may lead to a final rejection of a claim in cases where it ought to be allowed. But a public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which

§ 772. Responsibility of Judges of Courts of Superior or General Jurisdiction.

That judges of courts of superior or general jurisdiction are not liable to civil suits for judicial acts, even though maliciously or corruptly done, has already been indicated, the cases in point being reviewed by the court in Spalding v. Vilas. This is true even when the acts done are in excess of their jurisdiction, provided it appear that this want of jurisdiction is not clear and unmistakable. Where, however, authority is clearly usurped, action will lie. The doctrine as to this is sufficiently shown in the following words from the opinion in Bradley v. Fisher:

"Where there is clearly no jurisdiction over the subject-matter any authority exercised is an usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, and proceed to the arrest and

it is his duty to exercise judgment and discretion: even although an individual may suffer by his mistake. A contrary principle would, indeed, be pregnant with the greatest mischiefs. It is unnecessary, we think, to refer to the many cases by which this doctrine has been established. It was fully recognized in the case of Gidley, Exec. of Holland, v. Ld. Palmerston, J. B. Moore, 91; 3 B. & B. 275."

63 13 Wall. 335; 20 L. ed. 646.

trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil actions for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons."

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, there 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.2

1 Cooley, Constitutional 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

§ 775. Power to Issue Administrative Ordinances May be Delegated.

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 policy, 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 Appeal3 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. 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 uз many of the most valuable institutions." Cf. Cooley, Const. Lim., 7th ed., 265, note, and authorities there cited.

3 72 Pa. St. 491.