etc., and such other persons employed in the service of the United States as the President may designate.

The President is authorized, in his discretion, to create and establish local boards; their members to be chosen from the locality where the board has jurisdiction, under the rules and regulations prescribed by the President. They are to hear questions of exceptions, which shall be made under Presidential regulations. The President is authorized to establish district boards to review, under the rules and regulations prescribed by the President, decisions of the local boards and to hear claims not within the jurisdiction of the local boards. The act was thus honeycombed with delegations.

CHAPTER VII

OTHER CONSTITUTIONAL ASPECTS OF THE DELEGATED ORDINANCE MAKING POWERS OF THE PRESIDENT

As a general rule, the courts may not on these writs consider or review questions of fact or expediency which have been decided on by the administrative authorities. This is one of the most important general principles affecting the use of the writs and lies at the basis of nearly all the cases.

-GOODNOW.1

We agree that the courts of the United States, in determining what constitutes an offence against the United States, must resort to the statutes of the United States, enacted in pursuance of the Constitution. . . . The criminal offence is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail. -MR. CHIEF JUSTICE FULLER.2

4

I

We have seen that Congress may delegate to the President subordinate discretion, and have examined the scope of the power that it may grant him in this regard. In this chapter we shall consider certain other legal aspects of the delegated ordinance making power. And first of all it is necessary to inquire whether Presidential regulations fall within the category of ordinance' in the formal sense of that term, in a word, whether they have the criteria which material laws and material ordinances have in common.

These criteria may be summarized as follows: (1) whether final discretion be vested in the issuing officers; (2) whether that discretion relate to the creation of legal rights and duties either of private persons or of governmental organs or officers; (3) whether such rights and duties be of uniform application in the case of material laws or relate to general duties

1 Principles of the Administrative Law of the United States, p. 433, referring to the prerogative writs.

In re Kollock, 165 U. S. 526.

See above, chap. vi.

In chap. xi, below, private remedies will be considered in connection with political safeguards.

in the case of material ordinances; (4) whether to such rights and duties there be attached administrative, judicial, or penal sanctions or some combination of these three sorts. We may with propriety ask if the ordinances of the President fulfill all these conditions of formal ordinances."

While judicial process is not always necessary to due process," nevertheless it is fundamental that appeal may be taken to the courts, collaterally if not directly, from practically every act of the executive department, in order to test, at the minimum, whether there has been an excess or utter lack of jurisdiction." This, however, is true in the American system with reference to legislative as well as executive or administrative acts; and hence is not something which marks off ordinances from statutes. A more searching inquiry is this into what other questions will the courts go, in passing upon the validity of ordinances which are challenged before them? And the chief issue is whether the courts will accept as law every ordinance in the issuance of which there has been no excess of jurisdiction, or whether, on the contrary, they will inquire into the wisdom or motives of the action which produced the ordinance in question. In other words, will the judiciary presume, in the name of due process of law, to go behind the ordinance considered as the governmental product of the exercise by the Executive of a discretionary choice?

That is to say, do the ordinances the President may be given authority to issue conform to the definition of the term ordinance as set forth above?

6 Willoughby, Principles of the Constitutional Law of the United States (student's edition), p. 532.

'A court of law will inquire even whether a court martial had jurisdiction of a case decided by such court martial (see Willoughby, Principles of the Constitutional Law of the United States, student's edition, p. 496). The court of one state need not give full faith and credit to a judicial decision of a court of another state if it finds the latter did not have jurisdiction (ibid., p. 79). These facts are cited, not as being strictly in point, but as illustrative of the general principle that in rendering judgment a court will always inquire into the jurisdiction of the court or official upon whose acts it is passing. The rationale of this principle is the fact that under Art. III final determination of jurisdiction is essentially a judicial question.

8

In Buttfield v. Stranahan the Court say:

Whether or not the Secretary of the Treasury failed to carry into effect the expressed purpose of Congress and established standards which operated to exclude teas which would have been entitled to admission had proper standards been adopted, is a question we are not called upon to consider. The sufficiency of the standards adopted by the Secretary of the Treasury was committed to his judgment, to be honestly exercised, and if that were important there is no assertion here of bad faith or malice on the part of that officer in fixing the standards, or on the part of the defendant in the performance of the duty resting on him.

In this case, however, there was really no question of due process of law involved, because the denial of the right to import is not a constitutional deprivation of property."

In a very recent case decided by the Supreme Court, Dakota Central Telephone v. South Dakota,10 there was called into question the right of the President to control the telephone lines under the power conferred upon him by Congress under its war power. In the decision upholding the action of the President under this delegation, the Court said:

The proposition that the President, in exercising the power, exceeded the authority given him, is based upon two considerations: First, because there was nothing in the conditions at the time the power was exercised which justified the calling into play of the authority; indeed, the contention goes further and assails the motives which it is asserted induced the exercise of the power. But as the contention at best concerns not a want of power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of the judicial power. This must be, since, as the court has often pointed out, the judicial may not invade the legislative or executive departments so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion.

With reference to this case, however, it might be claimed that there is special immunity for Presidential action because of the political' character of his determination, or because here was an instance of 'emergency' action in time of war.

Other cases in point are Martin v. Mott," and Luther v. Borden,12 where the Court discussed the power of decision

8192 U. S. 470.

This point appears to be made by the Court in the opinion. 10 250 U. S. 163, 1919.

11 12 Wheat. 19.

127 How. 1.

of the President that the militia be called out. In both these cases, however, that same political' element was present and frankly recognized by the Supreme Court to be present. In fact, it seems clear from these cases that the decision of a political question' by the political department' having jurisdiction is not subject to review or question by the judicial department. Nor could the ' due process issue well be raised here.

At the other extreme is the opinion, delivered as late as 1920, in the Ohio Valley Water Company v. Ben Avon Borough et al.13 This case may be extreme, but it is cited to show a tendency to distinguish between political and industrial matters in regard to the finality of the discretion.

The opinion in the Ben Avon case has been severely criticized as contrary to the established principle that the courts will not review discretion.14 The relation of rate-fixing to the fair valuation of a public utility is called a question of "policy' and "not of exact fact or of law"; 14 and on that basis it is contended that it violates due process for a court to review de novo a rate determination on the ground that it may not be based on a fair valuation.

There are, however, other instances where, whether wisely or not, courts have, in exceptionally clear cases, gone behind a particular discretionary determination. Thus in case of gross and obvious abuse or fraud, at least where this is admitted, the courts may depart from the seemingly absolute rule above stated, and exercise a control over administrative action. Though decided in a state court, Dental Examiners v. the People 15 is indicative of the attitude the courts of this country are apt to take in clear cases of arbitrary abuse of discretion as to a particular situation. In ordering by mandamus the State Board of Dental Examiners to grant a license to the relator to practice dentistry on the ground

18 253 U. S. 473.

14 See the criticism of this case in Cheadle, "Judicial Review of Administrative Determinations," in Southwestern Political and Social Science Quarterly, June, 1922.

16 123 Ill. 227, 1887.