Imágenes de páginas

of the government as should be found necessary to the prompt discharge of their respective duties. The contention for the sureties upon these facts were that the advances were not made in accordance with law.

The opinion of Mr. Justice DANIELL shows a full appreciation of the problem: It is insisted upon as the correct interpretation of this statute that the power thereby vested to make advances for the public service is not one appertaining to the office of President, but is an authority strictly personal and ministerial, to be exercised in every instance only by the individual himself, by his own hand, and never in any respect to be delegated. Such an interpretation of the law this court can by no means admit; it would render the government an absolutely impracticable machine. The President's duty in general requires his superintendence of the administration; yet this duty cannot require of him to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services, which, nevertheless, he is in a correct sense by the constitution and laws required and expected to perform. This cannot be, because if it were practicable, it would be to absorb the duties and responsibilities of the various departments of the government in the personal action of one chief executive officer. It cannot be for the stronger reason that it is impracticable, nay, impossible.

In most matters of administration, then, delegation must be the rule of action. An extreme case of this is that of the assistant to the head of a department. It is well decided that he may act in the stead of his chief in matters of administration with all powers that the chief would have. A brief ruling to this effect is Hisey v. Peters, 1896, Pat. Dec. 22 (1895). Hisey's appeal from the primary examiner in the Patent Office denying his motion to dissolve the above-entitled interference was assigned by the Commissioner to the Assistant Commissioner for hearing and determination, and upon such hearing both parties appeared before the Assistant Commissioner and were heard. On the 26th day of January, 1895, the Assistant Commissioner rendered his decision, dismissing the appeal upon the ground that the question thereby raised was a question touching the merits, and upon which the appeal lay in the first instance to the Board of Examiners in Chief. Thereupon by a motion the authority of the Assistant Commissioner to hear and determine any quasi judicial question was challenged. It was claimed that the Commissioner could not assign to the Assistant Commissioner duties of that character.

But SEYMOUR, the Commissioner, ruled : That the Assistant Commissioner, under such an assignment, had authority to hear and determine the said appeal; and that his determination was therefore the legal determination thereof. So that the motion to rehear the appeal was denied. And, indeed, no other decision would be possible; it would be a singular doctrine and subversive of the purposes for which these offices of Assistants have been created, if their acts were to be held of no force until ratified by the head. It is to relieve the overburdened principal of performance in person of a part of his duties that this office is established. If no virtue at- . tached to the acts of this assistant until approved by the head, any inferior clerk would answer the purpose as well. It is not intended to deny that the assistant is the subordinate of the chief; can be ordered to do or not to do particular things; and can be reversed or set aside. But until so revoked or disapproved the action of the assistant stands as action of the clief.

The converse of this last case would be that no inferior can exercise by delegation any power that his superior could not exercise himself. It must be selfevident in this class of cases; so obvious, that it is all but impossible to discern a case for it. An obscure circular is all that is at hand that is in point-Power of Officers to Administer Oaths, Treas. Dec. No. 8741 (1888). It appears from this that the Solicitor of the Treasury gave an opinion under date of February 9, 1888, that an auditor or clerk in the Customs Service appointed as Deputy Collector could administer only such oaths as the Collector himself had authority to administer; and that as the Collector had no authority by law to administer oaths generally, the auditor in his position of Deputy Collector could assume no authority to administer oaths generally in matters of the Customs Service. All of which is axiomatic; but it is well at times to return to first principles. And surely these are the elements of administration by devolution of powers that the superior acts by his inferior, and the inferior acts from his superior—no more, no less, in either case. This is the first situation to ascertain and determine in any study of centralized administration.

48 CENTRALIZED ADMINISTRATION.-Martin v. Mott, 12 Wheat, 31; Williams v. United States, 1 How. 290; Runkle v. United States, 122 U. S. 543; Cheatham v. Phillips, 23 Ark. 80; Joyce v. Joyce, 5 Cal. 449; Ely v. Parsons, 55 Conn. 83; Young v. Blackhawk Co., 66 Ia. 460; Jackson Co. Sup'rs v. Brush, 77 Ill. 59; Triplett v. Gill, 7 J. J.

Adm. Law-14.

§ 64. Interdependence.

Much light is thrown upon devolution by an opinion upon the Relation of the President to the Executive Departments, 7 Opin. 453 (1855). The President asked the opinion of the Attorney-General upon the following question: Are instructions issued by the heads of department to officers, civil and military, within their respective jurisdictions, valid and lawful without containing express reference to the direction of the President; and is or not such authority implied in any order issued by the competent department? The Attorney-General, CUSHING, returned a long statement; in the course of it he set 'forth with elaboration the relation of the President to the heads of the departments. This is the first full discussion of the centralism which is the characteristic of the federal administration :

By the explicit language of the constitution the executive power is vested in the President of the United States. In perception, however, of the fact that the actual administration of all executive power cannot be performed personally by one man--that this would be impossible, and that if it were attempted by the President, the utmost ability of that one man would be consumed in official details, instead of being left free to the duty of general direction and supervision,-in perception, I say, of this fact, the constitution provides for the sub-divi

Marsh. 432; State v. Shaw, 64 Me. 263; Watson v. Watson, 58 Md. 442; Commonwealth v. Smith, 143 Mass. 169; Hall v. Collins, 117 Mich. 617; Monette v. Cratt, 7 Minn, 234; Neill v. Gates, 152 Mo. 588; Pfund v. Valley L. & T. Co., 52 Neb. 473; State v. Paterson, 34 N. J. L. 163; Birdsall v. Clark, 73 N. Y. 73; Covington v. Rockingham, 93 N. C. 134; Anderson's Lessee v. Brown, 9 Ohio 151; Coffee v Tucker, 7. Humph. 49; Caldwell v. Bush, 6 Wyo. 352.

sion of the executive powers vested in the President among administrative departments. In the organization of each department in turn it was provided that the head thereof should discharge his administrative duties in such manner as the President should direct, being in effect the executors of the will of the President. It could not as a general rule be otherwise because in the President is the executive power vested by the constitution, and also because the constitution commands that he shall take care that the laws be faithfully executed; thus making him not only the depository of the executive power, but the sole responsible executive minister of the United States. In a word, there is a general solidarity of responsibility for public measures as between the President and the heads of departments of direction to the President and of execution to the heads of department.

Another brief opinion that is the complement of this last opinion is Decisions of Ileads of Departments Binding upon Subordinates, 5 Opin. 87 (1819), which reads as follows: The opinion of the Secretary of Interior, directing the claim of II. Lassell for two thousand two hundred and twenty-four dollars and ninety-five cents, against the Miami nation of Indians, to be paid, is, in my judgment, binding upon all the subordinate officers by whom the account is to be audited and passed. This has been the practice of the government from its origin and is well authorized by the laws organizing the departments as it is absolutely necessary to the proper operation of the government. I deem the point so clear that I feel it to be unnecessary to refer to opinions upon the question given at different times by this office. This

« AnteriorContinuar »