Evening star. [volume] (Washington, D.C.) 1854-1972, 1897-09-14

law, and that such effect is to be given to
the rules under which the complainant
There can be no doubt as to the power
or Congress or any other legislative body
TO delegate to subordinate authorities the
power to make rules and regulations with
In certain limits. which, when made. will
have the force of law. Thus, corporations
municipal or private Hay be authorized to
make bylaws, and pelicA commissioners,
boards OF health and fire commissioners
may be authorized to make regulations
which have the effect of laws.
But If any rule prepared by this COM
mission, whether published by the Presi
dent or not, should have the effect of re-
pealins or modifying an act Of Congress. it
would be an act of legislation, and lot
regulation of mere executive character.
which 1t was clearly the object of this law
to authorize. 1t is grave question wheth-
er Congress could delegate to the Presi-
dent. or to any board of commissioners,
jointly with the President the authority to
do any act which is equivalent to legisla-
ton.
Delegated Authority.
Il am not aware that the Supreme Court
has made any delivery upon this question,
but there Is uniform current of author
itics in the state courts against the power
OF any legislature SO to delegate their au-
thcrity. See the authorities collected in the
American and English Encyclopaedia of
1t Is an established proposition of con-
stitutional law that the power conferred
upon the legislature to enact laws cannot
be delegated by that department to any
other body or authority
One illustration was the case Of stat
ute OF Minnesota which left 1t to certain
Judges to decide whether a law sould be
submitted to the people State agt. Young,
70 Mimi, 47D, and another was a law
which conferred upon the district court the
power to incorporate towns-People agt.
Nevada, Cal, 143; State agt. Sim )ns. 81
Mimi, 5i0-both of which forms of legisla-
ton were held unconstitutional.
Illustration of n Rule.
But probably all courts would agree
that no law is to be construed so as to
amount to a delegation of legislative au-
thority that can be avoided. An illustra-
ton of this rule is found in the case of In
terstate Commerce Commission VS.. Rail-
way Company, 1877 L. s., 479. The inter
state commerce act required that all
charges on railroads should be reasonable
and just, and every other was declared to
be unlawful. 1t prohibited discrimination,
undue preferences, etc 1t created the in
terstate commerce commission, gave it au-
thority to inquire into the management and
business of all common carriers and added:
And the commission is hereby authorized
to execute and enforce the provisions Of
this act
Under this authority the interstate COM
merce commission undertook by order
to establish a schedule of rates for certain
railroad companies. and, upon the refusal
of the latter to observe them, applied to
the circuit court for the southern district
OF Ohio for a mandamus to enforce their
order and. this being refused appealed 10
the court of appeals. and the latter court
certified to the Supreme Court of the Unit
ed States the question whether the COM
mission had the jurisdictonal power TO
make the order before mentioned. Justice
Brewer In delivering the opinion of the
court IN the negative said, in constituting
the act of Congress: The power given is
the power to execute and enforce not TO
leg1slate. The power is partly judicial,
partly executive and administrative, but
not legislative
The Considerations.
Again: @9i
We have, therefore, these considera-
uons presented: First. the power to pre-
scribe tariff of rates for carriage py a
common carrier is a legislative and not an
administrative or judicial function, and.
having respect to the large amount Ct
property invested in railroads, the various
companies engaged therein, the thousand
or miles of road and the millions of tons
OF freight carried, the varying and diverse
conditions attached to such carriage is a
power or supreme deltacy9 and importance
Second, that Congress has transferred such
power to any administrative body is not to
be presumed or implied from any doubtful
ana uncertain language. The words and
phrases efncacious to make such delega-
tlon OF power are well understood and
nave been frequently used; and If Con-
sreSs had intended to grant such power 10
the interstate commerce commission it can
not be douhted that 1t would have used
language open to no miSconStruction hut
clear and direct. Third, incorporating into
statute common law obligation resting
upon the carrier to make all its charges
md ii1cf
mission to execute and enforce the proyi-
slons OF abe act does not, by implicati ton.
carry to the commission or invest IT with
the power to exercise the legislative func.
tcHs OF prescribing rates which shall con.
troll in the future.
The Commission an Aid
And so. with equal emphasis, 1t may be
said that the authority to the civil service
commission to aid the President in prepar-
ing rules for carrying the act creating that
commission into erect. does not by implica-
tion confer upon the President a right to
virtually repeal an existing law, especially
when, as we shall see, that is not at all
Necessary to the effectual operation of the
act itself. And lastly, there Is nothing in
the language of the act or the objects
winch 1t processes to attain which make it
necessary to attribute such executive Lower
TO the commission or the President. The
act nowhere requires that the power of re-
moval vested in the head of a department
shall be abridged except in the single par
tcular Of removal, because of the refusal
TO contribute for partisan purposes: and
therefore 1t is not necessary, in order to
carry the act into effect that any rule
Should be adopted abridging the power of
removal of the Postmaster General or other
head of department in any other resnect
The second section contains an enumera
ton of the objects for which the rules are
to provide. They are: For competitive ex-
animation, for appointment by selection
from those grades highest as the result of
such examinations, for appointment of the
appointments among the states and terri
tories and the District of Columbia. ac-
cording to population, for a period of pro-
baton before absolute appointment. for ex-
empt1on of persons in the public service
from any obligation to contribute to any
political fund and from being coerced into
any political action, and for non-competi-
tive examination in certain cases, and for
notice to the commission of all appoint-
ments made by the appointing power
Irrational Interpreta ton.
1t would be very irrational interpreta-
ton which would give to the words and
among other things which are prefixed to
this enumeration such scope of meaning
as to convey by implication an unlimited
n bowl