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U. S. 46 (1887). The question in this case was whether certain services of the appellee, a lieutenant in the navy, were performed "at sea" within the meaning of the Revised Statutes. The Navy Department issued orders making one period sea service, the other period shore service. Whether the regulation must not govern all cases was the final point made for the appellant.
Mr. Justice HARLAN held for the lieutenant: The Secretary of the Navy could fix by ordering conclusively what was and what was not sea service. The authority of the Secretary to issue orders, regulations and instructions with the approval of the President in reference to matters connected with the navy, would be subject to the condition necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the navy. He may, with the approval of the President, establish regulations in execution of or supplementary to, but not in conflict with statutes defining his powers or conferring rights upon others. This has been the consistent doctrine of the court. In no case has it been upheld that the regulations when in conflict with Acts of Congress could be upheld.86
$ 110. Situation.
The argument is indeed an elementary one. er to execute the law involves a power to make regulations of general application for the reasonable conduct of administration. It involves that power because to prescribe such regulations is no more than a right in administration to use such methods as may seem fit to be used. It is a little stronger than that; indeed the proper conduct of a wide administration requires the establishment of regular forms and modes for the usual case if there is to be success. But the unusual case shows that this is administration after all is done, for in such a case the regulation may be waived by the officer that made it in any case that seems to him fit. This is the secret of administration-usual' methods for the ordinary case, unusual methods for the extraordinary case. That is always in the reserve—discretion.
86 CHARACTERISTIC.-Coast Survey, 2 Comp. Dec. 306; Lost Bond Case, 5 Lawrence 197; Hoyt v. Sullivan, 2 Land Dec. 283; Hawkus, 8 Pen. Dec. 22; Real Estate, 3 Int. Rev. Rec. 37.
An important case upon the nature of the regulation is Orne v. Barstow, 175 Mass. 193 (1900). This was a petition to enforce a mechanic's lien. At the trial the copy of the statement put in evidence by the petitioners bore the endorsement, Filed Feb. 14, 1898, at 8 h. 0. m. A. M. It was agreed that this was not within the thirty days allowed for filing by the statute; but evidence was admitted which showed the following facts: The office hours of the registry on Saturdays were from 8 A. M. to 1 P. M. On Saturday, Feb. 12, 1898, which was within the thirty days, between 1 P. M. and 2 P. M., the attorney for the petitioner, having got into the office after it was closed, tendered the statement and the fee to the register of deeds, who was there, but who refused to receive it. By the Public Statutes the register was re-quired to note the reception of every paper filed and to certify to it.
Mr. Justice IIOLMES said: We are of opinion on the facts proved, the statement was filed on Saturday after
We shall go no further in our decision than this case requires. We shall not undertake to decide wheth
er the register had a right to close his office as early as he did, so far as to exonerate himself from liability had some one come to the office and found it empty. But he was there. He undertook to refuse to give legal effect to the deposit, it is true, but in our opinion that was beyond his power. It was the petitioners' right, if they found the register in his office, to insist on their statement being filed forthwith, and it is no answer to say that the register might have been absent without liability under the law. As the petitioners did all that they could, or were bound to do, the register's conduct did not affect their rights.
All these regulations therefore have the same validity. In the formulation of the law upon this subject there has been much hesitation. An examination of the various decisions results in some uncertainty. When a statute is enacted, either there is specific indication in much detail for its execution, or there is express delegation to the executive to make regulation, or there is in contemplation in the act a subsequent ratification of the regulations which shall be framed, or there is no provision whatever touching the methods for its administration. The truth of the matter seems to be that in all these four cases the executive promulgates such reg. ulations as seem to it fit with entire equanimity.
THE ADJUDICATION OF THE ADMINISTRATION.
$ 112. Introduction.
113. Jurisdiction in Adjudication.
$ 112. Introduction.
There are these three methods in administration, then: execution, legislation, and adjudication. This is their order in importance, their order in value, their order in time. No administration is fully formed unless it has within its power the exercise of each of these functions, each at the appropriate time. In all but one case in ten thousand the citizen obeys the direction of the administration in the course of its execution without question; in all but one of these cases out of ten thousand in turn, the citizen accepts the interpretation of the administration by its legislation; and, the last step, in all but one out of ten thousand cases, the citizen accepts the adjudication of the administration upon his contest without further action. In computation administration by adjudication is one case in millions.
Notice that this is all administration from beginning to end. Administration by adjudication is no more than the determination by the administration of the controversies that arise out of the action of the administration. This jurisdiction of the administration is new in countries where the common law system prevails, but it is old in countries where the civil law system prevails. Indeed, so new is this function in the administration to try its own controversies that no discussion of it is to be found in our law writers. It is still the doctrine that all controversies must be decided in the judicial courts; which must be so, it is said, because the theory of the law of the land involves supremacy of the ordinary judicial tribunals. In the face of such theories, the jurisdiction of the administration to determine its own controversies has been established to an extent not often appreciated.
$ 113. Jurisdiction for adjudication.
The first question that arises in the discussion of adjudication by the administration is whether it is possible under our constitutional system that such power can be given to the executive department. The leading case to establish that is Cary v. Curtis, 3 How. 236 (1845). A certificate of division of opinion was sent by the judges of the circuit court upon the question whether the act of 1839 was a bar to an action against a collector of customs for money illegally exacted by him as duties paid under protest, the collector having paid for them into the Treasury. The Act of 1839 provides that all money paid to any collector of customs under protest shall be placed to the credit of the Treasury of the United States and disposed of as all other money paid for duties, as required by law or by regulations of the Treasury De