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The work on the proposed manual can from its very nature be done only by those who have had experience in the practical problems dealt with in the text, and given thought and study to their solution. Under the most favorable conditions it will necessarily take several years to complete the text. Only when all the parts are completed and revised will your committee be in a position to ask your Association to give the work the stamp of your official approval. The chief value of the publication in your annual reports of the parts tentatively completed, aside from the fact that use is already being made of them by those charged with the duty of drafting statutes, is the fact that it affords an opportunity to members of your Association and others to submit to the committee criticisms and suggestions. Your committee is especially anxious to emphasize the fact that such criticisms and suggestions are earnestly invited.

In a resolution adopted by your Association in 1913 we were especially directed “to report what, if any, changes in existing legislative procedure, or procedure in connection with the operation of the initiative will tend to the improvement of our statutory law.” Last year we were obliged to report: “The time occupied in the task of preparing (the tentative chapters of the manual on legislative drafting submitted) has been so great as to prevent the members of your committee undertaking a

study .... of the initiative.” This year your committee was informed that Mr. William A. Schnader, of the Philadelphia Bar, had made an elaborate study of the practical operation of the initiative in the states which have adopted that system of legislation. Your committee requested Mr. Schnader to give to the committee any suggestions which he might have for the improvement of the draftsmanship of initiative laws of the Constitutional Amendments. Mr. Schnader kindly complied with our request. It is his opinion that there are but two feasible ways for improving the draftsmanship of initiative laws and amendments :

First: That the indirect system of initiating laws and amendments should be established requiring both laws and amendments to go to the legislature before submission to the voters.

Second: That any state machinery now authorized to assist the legislature in drafting measures be required to extend its aid to those who desire to use the initiative, and that as the drafting

of legislative measures is aided and safeguarded by the extension of the duties and powers of legislative drafting bureaus, the same aids and safeguards should be applied to measures proposed under the initiative.

The reasons for these recommendations are set forth in his letter which we submit herewith as Appendix E.

The subject is one of increasing importance and Mr. Schnader's recommendations are entitled to careful consideration. We are not, however, as yet in a position to make to your Association any definite recommendations on the subject.

Your committee recommends the adoption of the following resolution :

Resolved, That the Special Committee on Legislative Drafting be continued and directed to continue to prepare for submission to this Association a legislative manual which will contain a collection of directions, or suggestions, for drafting laws, and model clauses for constantly recurring provisions and problems, and the committee is hereby authorized to co-operate for the purpose with other organizations and individuals, and the committee is further authorized to continue any research pertinent to the improvement of the form of our statutory law and report the results of its investigations to this Association."

Respectfully submitted,







It is inevitable that administrative authorities should have power to make rules for certain purposes or under certain cir

cumstances, and an express power to make rules is not uncommonly conferred upon them by American statutes.

The practice involves the question of the constitutional validity of the delegation of legislative power. It is conceded that there are limits to the extent to which such power may be delegated, but the limits have never been clearly defined; nor is there any generally accepted or easily applicable criterion to distinguish between administrative and legislative rules.

Nearly all cases in which there has been held to be an unconstitutional delegation of legislative power, are cases in which the operation or effect of some statutory provision has been made to depend upon an act of unregulated administrative discretion; cases in which the delegation of a power to make rules and regulations has been held to be unconstitutional have been very rare, the most conspicuous being those in which the legislature undertook to leave it to the insurance commissioner to prepare standard forms of insurance policies which were to be used exclusively (O'Neill vs. Insurance Co., 166 Pa. St. 72; Dowling vs. Insurance Co., 92 Wis. 63); the decision in California holding invalid the power given to the state viticulturist to make rules against the introduction and spread of vine diseases (Ex. p. Cox 63 Cal. 21) is against the strong current of authority (Butterfield vs. Stranahan, 192 U. S. 470; Hurst vs. Warner, 102 Mich. 238; Peo. vs. Van der Carr, 175 N. Y. 440; Isenhour vs. State, 157 Ind. 517; People vs. Tait. 261 Ill. 197); the statement in Tugman vs. Chicago, 78 Ill. 405, that powers of regulation should be delegated only to elected officers was merely a dictum.

The present tendency seems to be to recognize the validity of rule making powers to a very considerable extent, and probably experience alone can show to what lengths the legislature may or should justly go.

It will aid draftsmen to know the extent of the practice in the past, the forms in which the power has been granted, and the limitations and safeguards by which the exercise of the power has been surrounded.

It would on the other hand, at the present time be neither practicable nor desirable to define by constitutional provision the permissible scope of administrative regulation. It would be

impossible to devise a formula adequately expressing the proper limits of delegation.'

A very liberal and indiscriminate delegation of powers of regulation is undesirable, because it leads to diffuseness and uncertainty of the written law.

The observations in Mr. Winthrop’s treatise on Military Law Regarding the Army Regulations are pertinent in this respect (Vol. I, p. 34):

“ To the student, as well as in practice, army regulations are the most unsatisfactory element of our written military law. Presented in connection with statutes from which they are sometimes imperfectly discriminated; not unfrequently themselves partaking of the character of legislation and thus of doubtful validity; and fatally subject, as we have seen, to constant and repeated modification, their effect too often is to embarrass and mislead where they should, assure and facilitate. To render them entirely useful, they should in the opinion of the author, be reduced to the smallest available bulk; all that are really statutes and all that are of a legislative quality should be eliminated; only those should be included that are purely general, those relating to the business of the staff corps being left to be established by the heads of the same, subject to the approval of the President; and the authority to amend should be most rarely exercised.”

Whatever therefore the rule of constitutionality, it is important to bear in mind, that the practice of American legislation in the past has been conservative, and that a similar conservative spirit is manifest in the judicial construction of delegated powers.

The English practice is equally conservative, while in Germany and France there seems to be a greater inclination to leave the enumeration or specification of matters falling within some principle to administrative regulation.

Thus the German Weights and Measures Act of May 30, 1908, is a brief measure leaving it to an Imperial Commission to see to

In a recent case, Interst. Com. Commission vs. Goodrich Co., 224 U. S. 194, 214, 1912, the U. S. Supreme Court uses the following language:

The Congress may not delegate its purely legislative powers to a commission, but having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress."

uniformity of standardization and to determine the conditions of certification, and the Commission thereupon issued a code consisting of 151 sections.

Again the German Pure Food Act of 1879 authorizes regulations prohibiting designated methods of preparation, preservation or packing, or prohibiting the sale of food of designated quality or under misleading designations, or prohibiting the sale of animals for slaughter or of food from animals where the animals suffer from diseases specified in the regulations, or the use of material or dyes specified in the regulations for the manufacture of articles of use or consumption, or the sale of oil below a specified grade. The act itself contains in the main only administrative provisions while the substantive part is practically altogether left to administrative regulation. No English or American food legislation goes to that extent.

A more conservative view is indicated in the Saxon Building Code, with regard to which an authoritative treatise says:

" It was necessary to attempt at least to express in the act the technical building provisions of general importance. There remained for executive regulation those provisions which had rather the character of formal requirements and official instructions to the appropriate authorities, the easy changeability of which according to changing needs is unobjectionable from a legislative and desirable from a practical point of view."

2. TERMINOLOGY. The terms rules or regulations are the most common and appropriate to designate the enactments of a rule making authority.

However, sometimes the word “order or even “special order(confined to a particular class) is used, although it would be better to reserve these terms to orders of particular or individual application.

The word “ordinance” is applied to enactments of the legislative bodies of municipal corporations, which in England are called by-laws. The latter term we apply to the rules of private corporations.

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