Evening star., 1943-01-20
Bureaucratic
Penalties
Questioned
Encroochments on
Rights Moy Prompt
Congress to Act
BY DAVID LAWRENCE.

"N bSN AZ NV hbANNf<s
The average citizen, in his desire
to cooperate with the war effort. is
taking a good deal on the chin. He
is obeying Government edictS on
the theory that they are lawful or
that someone in Washington has
looked up the law and found au-
thority for administering punish
ments if regulations" are violated.
AS matter of fact, there exists
scant authority for some Of the
high-handed punishments now be-
ing meted out to the citizen. Thus
the OPA thinks it can issue over
night a ban on so-called pleasure"
driving and arrest citizen and take
away his ration book.
This is equivalent to denying
transportation facilities to a citizen
on the ground that he has violated
the law. To mete out such a severe
punishment is to introduce pen
atty which Congress-supposed the
law-making body never pre-
scribed.
Legalizes No Caprice.
There is plenty of law permitting
the OPA to issue or withhold ra-
ton books, but this does not mean
it can act cspriciously or that it
can suddenly decide that it will for
bid pleasure" driving and that it
can make its own definition of what
the term means.
The principle that no executive
agency can impose a penalty unless
1t Is specified in the law itself is
well grooved. In fact, the Attor-
ney General, on June 81. 1934-under
the present Administration-rul
that no executive order could of
itself prescribe penalties. And the
Attorney General stated that the
broad general provision usually con-
tanned in all statutes-vesting au-
thority ito prescribe such rules and
regulations as may be necessary to
carry out the purposes of this title
and by virtue of other authority
conferred by the act" does not cover
the imposition of new penalties.
THE general power" wrote the
Attorney General, ito make regu-
lations to carry into effect any
particular statute does not carry
with 1t the power to create offenses
or to assess penalties for violations
Of the statute Omitted States VS..
Eaton. An executive officer can
not, by his regulations, altar or
amend a law. All he can do is to
regulate the mode of proceeding
to carry into effect what Congress
has enacted CMorrill VS.. jones'.
Law Imposes Penalties.
penalties are purely the creatures
Of the Legislature. They cannot
be created by judicial implication,
but must be expressly imposed by
statute (the Board of Health VS..
the Pacific Mail Steamship Co.
California; the Western Union
VS.. Jones-Indiana; Health Depart
ment VS.. Knoll-New York;"
1t is obvious that the above rea-
soning applies also to the recently
announced decree by the Executive
whereby net incomes we're limited
and the surplus was ordered re-
tanned by the Treasury, even though
Congress had passed no revenue
law stipulating such a rate of
taxation.
The whole theory of government
In America has been that Congress
made the laws and that the execu-
tive agencies merely executed these
statutes. 1t has always been as
sumed that Congress would not
write into the statutes all the de-
tails, but would leave these to the
enforcement body. But until re-
Gently it never was assumed that
the executive agencies would un-
dertake to impose new penalties
or to derive meanings from the
statute virtually amounting to the
same thing as passing new legis-
lation.
In countries where parliament
tary governments exist, as in
Canada and Great Britain. the
executive agencies are held strictly
accountable for what they do, be-
cause if they err in the interpreta-
tion of an act Of Parliament, the
party in power can be turned out
Of Office because Of the acts Of the
administrative officials. The eXecu-
tive and legislative departments are
one and the same thing
May Prod Congress.
In America, however, there is
no way to hold executive agencies
responsible for violating the spirit
or the letter OF the laws of Con-
gress. Once in while, as a result
Of public furore, a top official
resigns, but the damage he does
cannot be undone and the viola
tions Of law canont thus be pre-
vented.
II the abuse Of power grows 1t
may be necessary for Congress to
do q little bit of penalty imposing
so that administrative officers who
are found guilty of straying be-
yond the letter of statutes Will be
subject to fines and imprisonment
or other penalties when they dis
regard acts of Congress or seek
to deprive the citizen of his rights
or property without proceeding
through a lawful process.
Congress, of course, has all the
power to stop the abuse OF the
citizens rights, and the imposing
Of penalties through executive order