shipper of property without due process of law, that a federal question is raised.

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 Union 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

§ 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 primarily 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 I 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. Eliason1 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 seem the best adapted to secure the end desired by Congress. Thus in Merritt v. Welsh15 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. Jones1 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 U. S. 466; Sup. Ct. Rep. 423; 27 L. ed. 267.

collector was in excess of the power of the Secretary. The statute clearly includes animals of all classes. The regulation seeks to confine its operation to animals of superior stock.' This is manifestly an attempt to put into the body of the statute a limitation which Congress did not think it necessary to prescribe. Congress was willing to admit, duty free, all animals specially imported for breeding purposes; the Secretary thought this privilege should be confined to such animals as were adapted to the inprovement of breeds already in the United States. In our opinion, the object of the Secretary could only be accomplished by an amendment of the law. That is not the office of a treasury regulation."

§ 781. Penal Ordinances.

The courts scrutinize with especial care those cases in which a criminal action is based upon the violation of an administrative order. It is not questioned that the legislature may attach a criminal liability to the violation of an administrative order, but in each case it must clearly appear that the order is one which falls within the scope of the authority conferred. Thus, while there are many cases in which it has been held that the delegation of an ordinance-making power to the executive is not a delegation of legislative power, there are comparatively few cases in which has been sustained the right of an administrative officer to establish an ordinance the violation of which will be punished criminally. In United States v. Maid" the court say:

"A department regulation may have the force of law in a civil suit to determine property rights, and yet be ineffectual The obvious ground

as the basis of a criminal prosecution. of distinction is that to make an act a criminal offense is essentially an exercise of legislative power, which cannot be delegated, while the prescribing by the President or head of a department, thereunto duly authorized, of a rule, without penal sanctions, to carry into effect what Congress has enacted, although such rule 17 116 Fed. Rep. 650.

may be as efficacious and binding as though it were a public law, is not a legislative, but ministerial function."

In United States v. Eaton1s was involved the authority of a regulation of the commissioner of internal revenue, directing wholesale dealers in oleomargarine to keep book accounts and to make certain monthly returns. This regulation had been made in pursuance of an act of Congress regulating the sale of oleomargarine, which, besides making certain specific requirements, provided that the commissioner, with the approval of the Secretary of the Treasury, might "make all needful regulations for the carrying into effect of this act." The court held that this provision did not enable the commissioner to render criminal the failure to conform to additional requirement with reference to books and reports which his regulations had sought to impose. The court said: "It is a principle of criminal law that an act which may be the subject of criminal procedure is an act committed or omitted' in violation of a public law, either forbidding or commanding it.' 19 It would be a very dangerous principle to hold that a thing prescribed by the Commissioner of Internal Revenue, as a needful regulation under the Oleomargarine Act, for carrying it into effect, could be considered as a thing required by law' in the carrying on or conducting of the business of a wholesale dealer in oleomargarine, in such manner as to become a criminal offense punishable under sec. 18 of the Act; particularly when the same Act, in sec. 5, requires a manufacturer of the article to keep such books and render such returns as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulation, require, and does not impose, in that section or elsewhere in the Act, the duty of keeping such books and rendering such returns upon a wholesale dealer in the article.

"It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense; and we do not think that the statutory authority in the present case is sufficient. If Congress intended to make it an offense for wholesale

18 144 U. S. 677; 12 Sup. Ct. Rep. 764; 36 L. ed. 591, 19 4 Am. and Eng. Enc. Law, 642; 4 Bl. Com. 5.