judgment to be based upon an incorrect interpretation of the Constitution, scarcely needs argument. This case is stronger than the former one by reason of the additional support of the judiciary. To refuse now to execute the command of the court is to assume the judicial power of a court of appeals as well as legislative functions.

Liability of the State for the acts of its officers

The doctrine of the non-suability of the State prevents the prosecution of a claim against the United States, or a State of the Union, whether that claim be founded upon a tort of one of its agents, or be one arising out of a contract.26

Legal liability of public officials to private individuals injured by their acts-ultra vires acts

As has elsewhere been shown in this treatise, a fundamental principle of American law is that the legality of acts of public officers is determined in the ordinary courts according to the same rules that govern the decision of suits between private individuals. Thus, generally speaking, no officer can defend an ultra vires or otherwise illegal act by setting up his official position or exhibiting the command of a political superior. This last statement as to the non-applicability of the principle of respondeat superior is, however, subject to this qualification, that the order of an administrative superior, prima facie legal, though in fact not legal, may be set up in defense of an act commanded by military superiors.27

The result of the doctrine last stated is, as will be seen, that an act is defended for the performance of which in fact no legal authority can be produced. Simply the color

26 Dooley v. United States, 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074, and authorities there cited.

27 In re Fair, 100 Fed, Rep. 149.

of authority on the part of the superior giving the command is held a sufficient defense. Clearly common justice, and the practical necessities of administration justify the rule, yet, inasmuch as it does in fact protect an act essentially illegal, the doctrine is one that is kept within the narrowest possible bounds. Only where there is present no fact which would put the subordinate, as a man of ordinary intelligence, upon his guard, or where the practical necessities of the case leave little or no opportunity for individual judgment in the matter, should the rule be applied. In all other cases, it is to be repeated, the public official is able to defend his act only by showing some existing legal authority for it.

The necessities of the case require the foregoing doctrine, with reference to the military arm of the government. There not being the same urgency for immediate obedience the doctrine does not prevail in civil matters. 28

Responsibility of officers for improper exercise of authority – malice, etc.

Thus far we have been considering the criminal and civil responsibility of public officers for ultra vires and otherwise illegal acts. We have now to consider their responsibility to private individuals for acts committed by them within the general scope of their respective authorities, but characterized by undue severity, discrimination, or malice.

In general no officer is held responsible in damages to an individual for non-performance or negligent performance of duties of a purely public or political character.

"In order to be made the basis of a claim for damages, the duty, the neglect of which has caused the damage, must be one which the individual suffering the damage

28 Hendricks v. Gonzales, 67 Fed. Rep. 351.

has the right, not as a part of the public, but as an individual to have performed." 29

So long as public officers act within the general sphere of their authority, their legal responsibility to private individuals for the manner in which they act, whether their acts be dictated by malice, or characterized by negligence, is very slight.

Responsibility of judges of courts of superior or general jurisdiction

That judges of courts of superior or general jurisdiction are not civilly liable for judicial acts, even though maliciously or corruptly done, has already been indicated, the cases in point being reviewed by the court in Spalding v. Vilas.3 This is true even when the acts done are in excess of their jurisdiction, provided it appear that this want of jurisdiction is not clear and unmistakable. Where however, authority is clearly usurped, action will lie.31

30

29 Goodnow, American Administrative Law, 402; Spalding v. Vilas, 161 U. S. 483; 16 Sup. Ct. Rep. 631; 40 L. ed. 780; Kendall v. Stokes, 3 How. 87; 11 L. ed. 506.

30 161 U. S. 483; 16 Sup. Ct. Rep. 631; 40 L. ed. 780.

31 Bradley v. Fisher, 13 Wall. 335; 20 L. ed. 646.

CHAPTER LV

THE DELEGATION OF LEGISLATIVE POWER

Delegated power may not be delegated

"One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain, and by that constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute. the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.'

The principle as thus absolutely stated is subject to one important exception, and to several qualifications, or at least explanations.

Local governing powers may be delegated

The exception is with reference to the delegation of powers to local governments. The courts have held, as to this, that the giving by the central legislative body of extensive law-making powers with reference to local matters to subordinate governing bodies being an Anglo

1 Cooley, Constitutional Limitations, 7th ed., 163.

Saxon practice, antedating the adoption of the Constitution, and the right of local self-government being fundamental to our system of politics, our Constitutions are, in the absence of any express prohibitions to the contrary, to be construed as permitting it.

Power to issue administrative ordinances may be delegated The qualifications to the rule prohibiting the delegation of legislative power are those which provide that while the real law-making power may not be delegated, a discretionary authority may be granted to executive and administrative authorities: (1) To determine when and how the powers conferred are to be exercised; and (2) to establish administrative rules and regulations, binding both upon their subordinates and upon the public, fixing in detail the manner in which the requirements of the statutes are to be met, and the rights therein created to be enjoyed.

The principle which permits the legislature to provide that the administrative agents may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it is its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that under other circumstances, different or no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law as legislatively declared.

The doctrine thus declared is without objection so long as the facts which are to determine the executive acts are