of vast importance, Congress, in the exercise of its power to regulate commerce among the states, has contented itself with laying down the very broad principle that interstate railway rates shall be just and reasonable, leaving it to an administrative body, the Interstate Commerce Commission, to determine, in each particular case, what shall be deemed a just and reasonable charge. American constitutional jurisprudence, however, imposes two limitations upon the power of Congress or of state legislatures to delegate discretionary powers to executive or administrative agencies. Limitations on legisla tive power The first of these is that the determination of the general public policy must be made by the legislature itself, that is, the real legislative power must be exercised by the organ in which it is vested by the Constitution. Thus, with reference to the matter of interstate railway rates, above referred to, the policy that they should be subject to legal regulation and that they should be "just and reasonable" had to be fixed by Congress. The enforcement of this policy, involving its application to concrete cases, could be and was delegated to an executive organ. This illustration shows, however, that this limiting constitutional principle General is easily satisfied, and makes constitutionally valid as Policy broad discretionary administrative powers as it is likely that expediency can possibly demand. The second constitutional principle, above referred to, limiting the power of American legislatures to delegate discretionary powers to administrative agents, is that the discretion thus authorized must be one guided by conditions of fact and not dictated by the purely personal or arbitrary judgment of the agent exercising it. Thus, in a leading case in which it was held void a legislative act which had attempted to vest in an administrative agent a personal and arbitrary power to say whether buildings should be used for certain purposes, the Supreme Court of the United States said: Purely arbitrary discretion Executive power in criminal matters "The very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being of the essence of slavery itself." Referring to certain city ordinances that had been issued, the Court continued: "They seem intended to confer and actually do confer, not a discretion upon consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not as to places but as to persons. The power as given to them [the administrative agents] is not confided to their discretion in the legal sense of the word, but is granted to their mere will. It is purely arbitrary and acknowledges neither guidance nor restraint."1 To the issuance of one kind of ordinances, namely, those which define acts as criminal and attach penal consequence to their commission, American courts have been loath to give sanction. Only where the legislature itself has clearly and specifically provided that a violation of the orders which the administrative officials are authorized to issue shall be deemed criminal and certain penalties attached to their commission, will the courts uphold them. Thus, as was said in one case: 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 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 so a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense.2 I Yick Wo v. Hopkins, 118 U. S. 356 (1886). Another interesting case is that of American School of Magnetic Healing . McAnnulty, 187 U. S. 94 (1902). United States v. Eaton, 144 U. S. 677 (1898), but see U. S. v. Grimaud, 220 U. S. 506 (1911). Besides the delegation to executive agencies of the right to issue rules and regulations having the force of law, the legislatures of all states of any considerable size delegate to local governments-or the written constitutions do this for them-authority to issue special orders or laws relating to their special areas. Under federal forms of government the field for general legislation is divided between the central legislature and the legislatures of the constituent states of the union or federation, and these states, in turn, delegate self-governing powers to their local governments. And, where colonies are held, it is usual for the sovereign government to grant autonomous powers to the governments established in them; and in empires like the British, the Imperial Parliament has retained for itself such slight legislative control over the local affairs of certain of its possessions, known as "dominions," that it is little more than a legal fiction to say that it has any control at all.2 The In the paragraphs which have gone before it has been seen that only to a limited extent does the legislative branch of a government furnish, by its formal enactments, the laws of a country, and, even as to the measures which it does enact there remains to be determined the extent to which its own will may be said to find embodiment in these statutes. This is a question which will be considered later. Furthermore, it will be seen, in many States the accepted theory is that, as a purely legal proposition, the real decisive law-making act is not that of the legisla- The Montive chambers at all, but of the monarch when he gives his assent to the measures which his parliament presents to him; that the function of the parliament has been but to fix the form and substance of a proposition of law which 1For a discussion of the delegation of legislative power to local governments as an exception to the rule against re-delegating legislative power, see Cooley, Constitutional Limitations, pp. 166, 264. *For a very brief but clear statement, see A. B. Keith, Dominion Home Rule in Practice (1921). A more elaborate discussion is Hall, The British Commonwealth of Nations (1920). archical Theory is not transmuted into actual law until he has exercised with reference to it his sole and supreme legislative will. TOPICS FOR FURTHER INVESTIGATION The Powers of the English Crown.-Ogg, The Governments of Europe; Marriott, English Political Institutions; Lowell, The Government of England; Bagehot, The English Constitution. The Delegation of Legislative Power.-McIlwain, The High Court of Parliament and its Supremacy; Cooley, Constitutional Limitations; Willoughby, Constitutional Law of the United States; Fairlie, "Administrative Legislation," Michigan Law Review, January, 1920. Legislatures and Courts as Law Makers.-Gray, The Nature and Sources of Law; Holland, Jurisprudence; Bryce, Studies in History and Jurisprudence; Maine, Ancient Law and Early History of Institutions; Pollock, First Book of Jurisprudence; Jenks, Law and Politics in the Middle Ages; Carter, Law: Its Origin, Growth, and Function; Willoughby, The Nature of the State. The Drafting of Statutes.-Freund, Standards of American Legislation; Jones, Statute Law-Making; Ilbert, The Mechanics of Law-Making and Legislative Methods and Forms; McCarthy, The Wisconsin Idea. CHAPTER XII THE LEGISLATURE AS A CRITIC OF IN THE preceding chapter the legislature has been dealt with as a law-making organ. We turn now to a consideration of it as a critic of the executive, and as an organ of publicity and political education. Government subject to Public Opinion It has been earlier pointed out that a popular govern- Popular ment is one whose policies are subject to the control of public opinion. This principle applies not only as regards the matter of determining the policies to be pursued, but as regards the manner in which they are carried into effect. The government being one that is for the people as well as by the people, it is their right to demand not only that their orders shall be efficiently and honestly executed, but in good faith, that is, in conformity with the legislative purpose and intent. As regards honesty, this may be in part secured by the care which is taken in appointing or electing the administrative agents of government and by a rigid enforcement of the criminal law. As regards efficiency this too may be in part secured by selecting only competent officials, and by providing a well organized administrative system employing proper administrative methods. Need for of Execu But, human nature being such as it is, no mode of selection of public officials, however excellent, and no system oversight of administrative organization and operation, however perfect, can render unnecessary the maintenance by the people of a constant supervision over, and scrutiny of, the tive |