Imágenes de páginas

as the total for loss of a hand or foot. The action of the bureau was affirmed January 15, 1889, whereupon claimant filed additional affidavits, which were merely cumulative, in which affiants gave it as their opinion that the soldier was disabled in a degree entitling him to a higher rating, and were not deemed sufficient to justify the bureau in again opening said claim and rerating the pension. This appeal involves the correctness of the action of the bureau refusing to reconsider the application for rerating, or to again rerate the appellant's husband's pension.

Secretary REYNOLDS ruled: Aside from the sufficiency of these affidavits it is the well-settled rule, established by a long line of departmental decisions, that in cases of non-specific disability, the ratings fixed at the date of the certificate and based upon contemporaneous medical examinations, will not be disturbed on account of differences of opinion that may subsequently arise upon an application for rerating. If the placing of the name of an applicant upon the roll is to be considered a judicial act it should only be considered a judgment nisi, The proceedings are largely ex parte and from the vast numbers of applicants the work must be performed and the roll made up for the most part by the clerks. The doctrine, when adopted by the Department in pension (ases, simply becomes a rule which each administration prescribes for itself as a matter of policy or convenience, and may be waived, suspended, or ignored as justice, public policy, or convenience requires. The facts in the case under consideration, however, show no reason for deviating from the hitherto almost uniform practice of refusing to disturb decisions of former administration

where neither fraud nor manifest error in law nor palpable mistake of fact is shown to exist.

The theory of stare decisis as it is understood in the courts of law is thus to a certain extent the rule in the offices of the executive departments. It would be an unsatisfactory administration indeed where the determination of each question was different as caprice might dictate. What is wished is an orderly administration, in which precedents are regarded, in which the principles involved in those precedents are respected, as the cases that are to govern in future administration. That is the recognition of an unwritten body of law. No ad. ministration that does not proceed in that way can succeed. At the same time no administration that does not reserve discretion can succeed either.81

8 103. Conclusion.

The requirement as to regulations in general must be that they shall not be contrary to public duty. The officer owes a duty to all of the public who have any concern in his exercise of his duties. It is true that the officer may by regulation lay down general rules for the conduct of the business of his office; but these rules must be reasonable in their application. If these rules in effect abridge the rights of the public they are void; otherwise they will stand. In any particular case where the rule is applicable, that rule can be set up against that particular person.

A rule that is must be in pursuance of public duty; it cannot be in denial of public right.

81 PROPRIETY.-United States v. Pugh, 99 U. S. 269; Hahn v. United States, 107 U. S. 406; Minneapolis, etc., R. R. v. United States, 24 Ct. of Cl. 351; Hilburn v. St. Paul, etc., R. R.,'23 Mont. 245: Lockwood v. Bank, 9 R. I. 308.



$ 104. Introduction.

105. Conflict with Legislation.
106. Repugnancy.
107. Limitation.
108. Conflict with Administration.
109. Characteristic.
110. Situation.
111. Conclusion.

§ 104. Introduction.

A regulation is an order, in that it is like any act done in administration. Wherever a superior gives an order to the inferior, the simplest form in administration is seen—the specific order. Whenever a superior with two inferiors gives to each the same order, the simplest forın of the regulation is seen, the general order. After that, between a general order spoken for two and the general order printed for two thousand no distinction exists. The power to issue a regulation over all the officers in an office is a consequence of the power to issue any single order to any single officer. All this results from the theory of administration which gives the superior full direction over his inferiors in any way that may seem to him fit.

This is indeed the line of reasoning in the case called Furloughs, 21 Opin. 318 (1896). This was a request by the Secretary of the Interior upon the Attorney-General for an opinion upon this question as the furloughing of microscopists: Whether it is necessary for me to give a notice of furlough over my official signature in each individual case, or will a general order signed by me directing inspectors in charge of assistant microscopists to furlough them without pay when their services are not required be sufficient? It would be almost impossible for me to give individual furloughs in each case.

HARMON, the Attorney-General, wrote in reply: Your right to furlough cannot be questioned. Inasmuch as the contingencies upon which it is desirable to furlough microscopists arise from time to time and upon conditions which you cannot foresee or control, the advantages to the government of this system would largely be sacrificed if you are compelled to act personally in each individual case, and after the occasion las arisen, I am of opinion that you can make general regulaiions under . which your subordinates in charge of particular localities can, as circumstances call for such action, furlough microscopists to take effect at once, reporting their ac

tion to you.

The true office of the regulation is to bring method into the administration to have a system in administration that shall be uniform in its application. It is therefore the duty of the inferior to obey in all cases the regulations of the superior; for this, indeed, is no more than the usual law governing in all administration. The inferior must obey his superior; the application of that rule in this particular case is that no inferior can waive a regulation made by a superior. To the extent to which discretion has been left to an inferior he may act; inside of the regulation, that is, not outside. And if discretion is left him, and it pleases him to enact, he may

Adm. Law--20.

promulgate minor rules of his own to govern the action of his subordinates. All this is a restatement of the law found in the discussion of the theory of the administration.

$ 105. Conflict with legislation.

[ocr errors]

The original source of regulations is then the administration itself. It must be possible, therefore, to state the law governing regulation in the terms of the law governing administration, when the matter is reduced to its lowest. And so it is; a regulation is no different from any act in administration at bottom. It must be possible, moreover, to apply one law governing administration to the regulation in essentials when matters

come to decision. And so it is; the regulation is no dif• ferent in nature from any action in administration at

bottom. All this must be so, if the proposition is accepted to its full extent that regulation is no more than one method in administration. That is the conclusion in this paragraph—that regulation is administration in substance. If, then, the regulation is an act of administration, it must not be in conflict with the law.

One case for that is Hoyt v. Sullivan, 2 Land Dec. 283 (1883). It appears that Luther B. Sanborn entered the above described tract under the timber-culture laws OCtober 28, 1880, and that October 28, 1881, Sullivan initi. ated a contest against said entry on the ground of abaudonment. Pending Sullivan's appeal from the decision of the local office dismissing his first contest, November 17, 1882, Sanborn filed a relinquishment of his timber. culture entry, Rowe withdrew his contest, and Melvin A. Hoyt made timber-culture entry for the same land.

« AnteriorContinuar »