$99. Extent.

Regulation is then but a method of administration. The consequences that follow upon this finding are of fundamental importance in the working out of the problem of the scope of the regulation. In administration, as has been seen, certain action is allowed, but certain action is forbidden. What is allowed to be done is anything within the law that is in execution of it; what is forbidden to be done is anything without the law that is in extension of it. In execution anything may be done that is administration, nothing may be done that is legislation-is the principal distinction. All this is restatement of the law governing the functions of the administration; but in this instance of regulation that law is more precise than in any other application of it.

There are two decisions upon two customs regulations decided at about the same time that help to get at the limitation upon the regulation. One is Morrill v. Jones, 106 U. S. 466 (1882). Section 2505, R. S., provided that certain animals ought to be admitted free of duty under proof satisfactory to the Secretary of the Treasury and under such regulations as he might prescribe. Article 383, treasury customs regulations, provided that the collector must be satisfied that the animals were of superior stock. The error assigned related to the instruction as to the effect of the treasury regulation.

The opinion of the Court was delivered by Mr. Justice WAITE: The Secretary of the Treasury cannot by his regulations alter or amend a revenue law. All he can do is to regulate the mode of proceedings to carry into effect what Congress has enacted. In the present case we are entirely satisfied that the regulation acted on by

the Collector was in excess of the power of the Secretary. The statute plainly includes animals of all classes. The regulation seeks to confine its operation to animals of superior stock. This is manifestly an attempt to put into the body of the statute a limitation which Congress did not think it necessary to prescribe. Congress was willing to admit duty free all animals specially imported for breeding purposes; the Secretary thought this privilege should be confined to such animals as were adapted to the improvements of breeds already in the United States. In our opinion the object of the Seceretary could only be accomplished by an amendment of the law. That is not the office of a Treasury regulation.

The other is Merritt v. Welsh, 104 U. S. 694 (1881). This was an action brought to recover duties alleged to have been illegally exacted by the Collector of the Port of New York. On certain sugars imported by them the defendant, under general instructions from the Treasury Department, rated them at a higher grade than their standard in color, according to a chemical test applied under Treasury instructions. validity of this regulation.

The issue was as to the

The test described by the color. The first question

Mr. Justice BRADLEY said: statute is Dutch standard in that naturally arises is, if Congress desires the application of the chemical test in order to determine the saccharine strength of the sugar, why does not Congress say so? There are two very distinct modes of distin guishing sugar. One is determined by the color standard, the other by a chemical standard. Which of these did Congress adopt? We think, clearly, the former. If it be found by experience that the standard of the stat

ute is a fallacious one, can the executive department supply the defects of legislation? Congress alone has the authority to levy duties. Its will alone is to be sought.

These decisions commend themselves, although the question was close enough in each case to justify litigation of it. The same fundamental principle is involved in each of them, that the sole external limitation upon the regulation is the law itself. It is the statute that gives the warrant for administration, so at that point where the legislation stops, the administration must stop also, for when the authority ceases, the exercise of it must cease. When a regulation is found with no positive law in support of it the regulation is thus held void; how much more will the regulation be held void when it is found that it is inconsistent with positive law. That the law is the limitation upon the regulation is in that case most evident.78

§ 100. Unwritten rules.

To note an analogy, it may be said that the administration has statute law of its own-its regulations-and that the administration has as well common law of its own-its customs. It is the obvious fact that the rules governing administration are both written and unwritten; and so long as administration proceeds by common consent in subjection with a body of rules, it makes no difference how many of those rules are written and how many of them are unwritten. It is more plain to de

78 EXTENT.-Merritt v. Welsh, 104 U. S. 694; Morrill v. Jones, 106 U. S. 466; Boske v. Comingore, 177 U. S. 459; Landram v. United States, 16 Ct. of Cl. 74; Maddux v. United States, 20 Ct. of Cl. 193; In re Smith, 60 Fed. 599; United States v. Goodsell, 84 Fed. 155; Matter of Spangler, 11 Mich. 298; State v. Davis, 69 N. H. 350.

But

duce written rules than to induce unwritten rules. the various acts in administration require for their validity an establishment of the unwritten usage of the departments in conformity with which they have been done.

The leading case is without doubt United States v, Macdaniel, 7 Peters, 1 (1833). This was an action brought by the government to recover a balance charged against an officer on the books of the Treasury. In defense the defendant pleaded as set-off a claim for services rendered to the government by orders of the heads of departments. There was an act of Congress providing for the same; and therefore the Auditor of the Treasury would not allow it. The claim arose under the custom as to a per cent upon appraisements.

The opinion of Mr. Justice DANIEL is worth extended quotation: The limitation is suggested on the power of the court that a claim which requires legislative sanction is not a proper offset, either before the treasury officers or the court. But there may be cases in which, the services having been rendered, a compensation may be made within the discretion of the head of the department; and in such cases the court and jury will do, not what the auditor was authorized to do, but what the head of the department should have done in sanctioning an equitable allowance. A practical knowledge af the actions of any one of the great departments of the government must convince every person that the head of a department in the distribution of its duties and responsibilities is often compelled to exercise his discretion. He is limited in the exercise of his powers by the law, but it does not follow that he must show a statutory provision for everything he does. No

government could be. administered on such principles. To attempt to regulate by law the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance of the subject. Whilst the great outlines of these movements may be marked out and limitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined, and which are essential to the proper action of the govern ment. Hence usages have been established in every department of the government which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits; and no change of such usages can have a retrospective effect, but must be limited to the future usage. It cannot alter, but it is evidence of the construction given to it and must be considered binding on past transactions.

The leading ruling by the departments upon this subjeet is without doubt the Lost Bond Case, 5 Lawrence, 197 (1884). On April 22, 1864, one Patterson, Secretary of said Fidelity Insurance, Trust and Safe Deposit Company, transmitted to the Secretary of the Treasury two bonds numbered 4225 and 31359 and coupons attached, with a letter saying they were enclosed for redemption, and adding "for which please remit principal and overdue interest." They were respectively endorsed as follows: "Pay to the Secretary of the Treasury for redemption. Patterson, Treasurer." The First Comptroller advised the Secretary of the Treasury that the claimant occupies simply the position of a finder, and as such has no lawful right to demand payment. Payment was therefore refused.