dealers in oleomargarine to omit to keep books and render returns as required by regulations to be made by the Commissioner of Internal Revenue, it would have done so distinctly, in connection with an enactment such as that above recited, made in sec. 41 of the Act of October 1, 1890.

Regulations prescribed by the President and by the heads of departments, under authority granted by Congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense."

In United States v. Bailey20 the following facts were involved: The Secretary of the Treasury, in order to carry into effect the authority given him by act of Congress to liquidate and pay certain claims, had, though not expressly empowered so to do by the act, authorized, by a regulation, affidavits to be made before any justice of the peace of a State. An indictment for false swearing in one of these affidavits having been brought, the question was raised as to the Secretary's power to make the regulation. The court held that he had the authority, saying: "It is a general principle of law, in the construction of all powers of this sort, that where the end is required, the appropriate means are given. Thus in this case, though express statutory authority was not given, the Secretary was held competent not only to make the regulation in question, but to make that regulation effective to sustain a prosecution for perjury under an act of Congress (Mch. 1, 1823), which provided that if any person shall swear or affirm falsely touching the expenditure of money, or in support of any claim against the United States, he or she shall, upon conviction thereof, suffer as for wilful and corrupt perjury."

20 9 Pet. 238; 9 L. ed. 113.

The position here taken is not in conflict with that assumed by the court in United States v. Eaton. In both cases the question was whether, from the circumstances of the case, Congress might properly be construed to have granted, implicitly, the ordinancemaking power that was exercised. It is to be conceded, however, that in the Bailey case the powers of the commissioner were very liberally construed.21

In Ex parte Kollock22 there was involved the same statute as in the case of Eaton. Here, under the general terms of the act, the commissioner was authorized to prescribe rules regulating the forms and markings of packages of oleomargarine, the violations of which rules should constitute a criminal offense. This was held to be not a delegation of legislative power, and an indictment based upon the rules issued was sustained. The court say: “The Act before us is on its face an act for levying taxes, and although it may operate in so doing to prevent deception in the sale of oleomargarine as and for butter, its primary object must be assumed to be the raising of revenue. And, considered as a revenue act, the designation by the stamps, marks, and brands is merely in the discharge of an administrative function and falls within the numerous instances of regulations needful to the operation of the machinery of particular laws, authority to make which has always been recognized as within the competency of the legislative power to confer.23

In the recent case of Oceanic Steam Navigation Co. v. Stranahan the court upheld the validity of a statutory provision authorizing the Secretary of Commerce and Labor to levy and collect a money penalty from the steamship companies for bringing into

21 Upon this topic see the article "To What Extent Have Rules and Regulations of the Federal Departments the Force of Law," by Morris M. Cohn, in the American Law Review, XLI, 343.

22 165 U. S. 526; 17 Sup. Ct. Rep. 444; 41 L. ed. 813.

23 Citing United States v. Symonds, 120 U. S. 46; 7 Sup. Ct. Rep. 411; 30 L. ed. 557; Ex parte Reed, 100 U. S. 13; 25 L. ed. 538; Smith v. Whitney, 116 U. S. 167; 6 Sup. Ct. Rep. 570; 29 L. ed. 601; Wayman v. Southard, 10 Wh. 1; 6 L. ed. 253.

24 214 U. S. 320; 29 Sup. Ct. Rep. 671; 53 L. ed. 1013.

the United States aliens affected with loathsome or dangerous contagious diseases. This the court did, however, upon the theory, based, it must be admitted, upon a very liberal interpretation, that the fines authorized to be collected were not penal in character, but an administrative means "to secure the efficient performance by the steamship company of the duty to examine [the immigrants] in the foreign country, before embarkation, and in carrying out the policy of Congress."

That the exaction of a penalty by an administrative officer is necessarily governed by the rules controlling the prosecution of criminal offenses, is denied. The doctrine declared in Wong Wing v. United States25 was, therefore, held not to apply.

In Fong Yue Ting v. United States26 it had been held that the right to exclude or to expel aliens, absolutely or upon conditions, being an inherent and inalienable right of a sovereign and independent nation, Congress had the power to expel as well as to exclude undesirable immigrants, and that this power might be exercised entirely through executive officers. A substantially similar position was taken by the court in Lem Moon Sing v. United States. In the Wong Wing case, however, the court held that Chinese persons might not be imprisoned at hard labor upon order without trial by jury, of an administrative officer acting under the authorization of the provision of the law of 1892 that any such Chinese person or persons of Chinese descent convicted and adjudged to be not lawfully entitled to be or remain in the United States, shall be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States." The court, while holding that the detention or temporary confinement of alien immigrants at the instance of administrative agents might be necessary and was allowable as a means for giving effect to the policy of Congress as established by law, declared that imprisonment at hard labor is an infamous punishment which may be constitutionally ordered only after indictment and trial

25 163 U. S 228; 16 Sup. Ct. Rep. 977; 41 L. ed. 140. 26 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905. 27 158 U. S. 538; 15 Sup. Ct. Rep. 967; 39 L. ed. 1082.

by jury and in a court of justice. "It is not consistent with the theory of our government," the court declare, “that the legislature should, after having defined an offense as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents."

By the Railway Rate law of 1906 the Interstate Commerce Commission is authorized to issue various orders with reference to the conduct of their business by interstate carriers, and provision is made that violations of these orders shall be punishable by fines and forfeitures which may be recovered in civil suits in the name of the United States.

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