3. MATTERS APPROPRIATE TO BE DELEGATED FOR ADMINIS

TRATIVE REGULATION.

The established practice indicates, at least approximately, under what conditions the legislature is justified in leaving a matter to administrative regulation.

The most important cases represent one of the following conditions:

1. That the matter relates to administrative organization, and does not directly affect the rights of individuals outside of that organization.

2. That action must be adapted to the exigencies of abnormal and unforeseeable conditions (e. g., quarantine).

3. That the matter concerns only the technical detail of a legislative policy sufficiently indicated in the statute (food standards).

4. That the matter is so variable according to varying conditions that it is impracticable for the legislature to foresee all contingencies (rates; wages)..

The most important distinction in rules and regulations is that between rules which impose duties and restraints upon persons not in the public service, and in their private dealings and transactions, and rules which affect only official conduct or private individuals in their relations and dealings with the public. A duty cast upon private individuals to enter into relations with public officials (particularly a duty to report) is however properly classed with the first category.

The first category is generally marked by the imposition of penalties for violation or non-compliance.

Procedural safeguards in making and publishing rules are generally only called for in connection with the first category.

4. SAFEGUARDS IN CONNECTION WITH THE DELEGATION. The safeguards are of three kinds:

(a) Indicating as far as possible the principles which are to be observed in framing rules and regulations.

(b) Procedural safeguards in the preparation and enactment of rules, particularly publicity, notice and hearing, and appeal. (c) Submission to the legislature for cognizance or approval. These safeguards are better developed in English than in

American legislation, and English models may therefore be advantageously consulted.

II. MATTERS DEALT WITH BY DELEGATED RULE MAKING POWER UNDER ESTABLISHED LEGISLATIVE PRACTICE.

The following are the most common and conspicuous matters which under the established practice of American and English legislation are left to be dealt with by rules made by administrative authorities.

1. REGULATIONS CONCERNING THE PERFORMANCE OF OFFICIAL DUTIES BY SUBORDINATES.

A convenient model is found in U. S. Revised Statutes 161: "The head of each department is authorized to prescribe regulations not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use and preservation of the records, papers and property appertaining to it."

A power, similar in nature, but of a much wider scope, is given in U. S. Revised Statutes 1752:

"The President is authorized to prescribe such regulations, and make and issue such orders and instructions, not inconsistent with the Constitution or any law of the United States, in relation to the duties of all diplomatic and consular officers, the transaction of their business, the rendering of accounts and returns, the payment of compensation, the safekeeping of the archives and public property in the hands of all such officers, the communication of information, and the procurement and transmission of the products of the arts, sciences, manufactures, agriculture, and commerce, from time to time, as he may think conducive to the public interest. It shall be the duty of all such officers to conform to such regulations, orders, and instructions." A very general power to prescribe duties is also given with regard to the Revenue Cutter Service:

U. S. Revised Statutes 2758:

"The Secretary of the Treasury may direct the performance of any service by the revenue vessels which in his judgment is necessary for the protection of the revenue."

U. S. Revised Statutes 2762:

The officers of revenue cutters shall perform in addition to the duties herein before described, such other duties for the collection and security of the revenue as from time to time shall be directed by the Secretary of the Treasury, not contrary to law."

2. REGULATIONS PRESCRIBING FORMS TO BE OBSERVED BY THE PUBLIC IN TRANSACTING BUSINESS WITH SOME

OFFICE OR DEPARTMENT.

Power to issue regulations of this kind seems to be less commonly granted; thus the Postmaster-General is merely given authority "to instruct all persons in the postal service with reference to their duties," and aside from matters of official routine, all regulations regarding the use of postal facilities by the public seem to emanate directly from the law.

The Secretary of the Treasury is given power to "prescribe forms of entries, oaths, bonds, and other papers" (251).

A very wide power is given to the Collector of Internal Revenue (321) to "prepare and distribute all the instructions and regulations, directions, forms, blanks, stamps and other matters pertaining to the assessment and collection of internal revenue."

Where proceedings of a semi-judicial character are conducted before some official authority, a rule-making power may be given in the form adopted by the Interstate Commerce Act, according to which the Interstate Commerce Commission " may, from time to time, make and amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof (which shall conform, as nearly as may be, to those in use in the courts of the U. S.). (Interstate Commerce Act, 1887, 17.)

For the rule-making power of administrative commissions, the following is a comprehensive form (Illinois Public Utilities Act, 1913, 8):

"The commission shall have power to adopt reasonable and proper rules and regulations relative to the exercise of its powers, and proper rules to govern its proceedings, and to regulate the mode and manner of all investigations and hearings, and to alter and amend the same."

3. REGULATIONS FOR THE ORGANIZATION, RECRUITING AND TENURE OF THE PUBLIC OFFICIAL SERVICE, or of CERTAIN BRANCHES THEREOF.

As distinguished from regulations of the first and second class, they involve important questions of policy, of governmental efficiency, and of official status, and are proper subjects of direct

statutory provision. In monarchical countries the regulating power, however, belongs to the executive as an inherent, and not a delegated, right, and through the influence of European and especially English precedent, there is in America a liberal delegation of power to the Chief Executive. The English influence is particularly noticeable in civil service legislation. The reform in England took place by orders in council without parliamentary interference, and the Federal Act of 1883, following the English model, left details of elaboration likewise to executive rules, and that has become the common type of civil service legislation in America. The power of regulation covers matters of qualification, appointment, tenure and discipline.

It is at least doubtful whether the power to prescribe rules for the government of a branch of the official service, extending beyond mere details, can be exercised merely by virtue of the possession of the chief executive authority.

Attorney-General Cushing, in 1853 pronounced against the validity of the "Naval Code" promulgated without legislative authority (6 Ap. Att. Gen., p. 10), and this authority is now supplied (U. S. R. S. 1547).

See on this subject also Winthrop, Military Law, Vol. I, pp. 20-34.

The civil service laws are in the United States the most conspicuous instance of legislation through regulations or rules, and the manner of delegation therefore deserves particular attention.

The rules are to be made by the President, and the co-operation of the Commissioners is referred to merely as an aid to the President.

A number of important rules are laid down by the statute directly e. g., that against the employment of persons using liquor to excess, that against the employment of more than two members of any family, rules forbidding recommendations by members of Congress, political assessments and contributions, solicitation in offices, etc.

The act itself specifies eight matters for which the rules must provide, and which cover the essential points of the system of competitive examinations and appointment according to merit, and at the same time leaves some flexibility by adding "as nearly as the conditions of good administration will warrant," and by

providing that necessary exceptions shall be set forth in connection with the rules, and the reasons therefor stated in the annual reports. The classification of the service must conform as closely as possible to that provided for in the Revised Statutes. The rule-making power thus appears carefully circumscribed, and the vital principle of the law is fixed by the statute itself. The whole matter being one not involving ordinary civil rights, there was no occasion for procedural safeguards in framing rules, and no method is prescribed for making or promulgating the rules.

4. REGULATIONS IN CASES OF EMERGENCY.

The existence of a special emergency invests regulations of this class with a semi-administrative character, and this in its turn serves to justify the delegation of power (Blue vs. Beach, 155 Ind. 121).

The power to make regulations for contagious diseases is perhaps the most common rule-making power in the United States; it is exercised by federal, state and local authorities and extends to diseases of animals as well as of human beings. Legislative practice and judicial construction are equally liberal.

For a particularly full delegation of a power of this class, see Wisconsin Revised Statutes 1408:

"The board shall have power to establish such systems of inspection as in their judgment may be necessary to ascertain the presence of the contagion or infection of Asiatic cholera, diphtheria, scarlet fever, smallpox, leprosy, typhus or ship fever, yellow fever or other dangerous contagious disease-the words dangerous contagious disease as used in this chapter meaning such diseases as the board shall designate as contagious and dangerous to the public health; and any member or duly authorized agent or inspector of said board may enter any building, vessel, railway car or other public vehicle to inspect the same and remove therefrom any person affected by such a disease, and for this purpose may require the person in charge of any vessel or public vehicle, other than a railway car, to stop the same at any place, and may require the conductor of any railway train to stop his train at any station or upon any sidetrack for such time as may be necessary. The board may also, from time to time, make, alter, modify or revoke rules and regulations for guarding against the introduction of any such disease into the state, for the control and suppression thereof within it, for the quarantine and disinfection of persons, localities and things infected or suspected of being