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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."

§ 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."

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

5 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

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.

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.'"

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§ 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 answeredin 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.

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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 Con6192 U. S. 470; 24 Sup. Ct. Rep. 349; 48 L. ed. 525.

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 busi

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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 Commerce Commission by the Safety Appliance Act of 1893, which forbids the use

7 204 U. S. 364; 27 Sup. Ct. Rep. 367; 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 commerce among the States.

9210 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.

§ 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.10 Indeed, it was originally held in Munn v. Illinois11 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

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.

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