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With all respect to so eminent a judge, it seems that the solution of this case should be that the legislature had left the determination of the question whether the animals were diseased or not to the fair discretion of the administration. 102

$ 133. Administration by legislation.


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As regulations depend upon a statute, they can never go to the extent of being independent of the statute. A regulation which is in effect legislation is in a just sense a regulation no longer. That is, as a regulation is

. derivative, it must keep within the scope of the statute under which it is framed. These are abstract distinctions; the truth of the matter is that it is very difficult, therefore, to apply them to particular cases. The course of adjudication upon the jurisdiction of the administration to promulgate regulations is proof of this.

If this line is passed it may be argued with justice that the administration has gone beyond its proper function. To show how perplexing the question is, a statement of two recent cases in the Supreme Court of the United States will be made. The first of these is United States v. Eaton, 144 U. S. 677 (1892). By the terms of the oleomargarine statute the Commissioner of Internal

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102 ADMINISTRATION BY EXECUTION.-Kendall v. United States, 12 Pet. 524; United States v. Schurz, 102 U. S. 378; Eslava v. Jones, 83 Ala. 139; Danley v. Whiteley, 14 Ark. 687; Harpending v. Haight, 39 Cal. 189; Howell v. Cooper, 2 Colo. App. 531; State v. Gamble, 13 Fla. 9; Barksdale v. Cobb, 16 Ga. 13; McCord v. High, 24 Ia. 336; State v. Barker, 4 Kan. 379; Tardos v. Bozant, 1 La. Ann. 199; Baker v. Johnson, 41 Me. 15; Magruder v. Swann, 25 Md. 173; Nowell v. Wright, 3 Allen 166; Allor v. Wayne Co. Auditors, 43 Mich. 76; Riley V. James, 73 Miss. 1; McCulloch v. Stone, 64 Miss. 378; Kimball v. Lamprey, 19 N. H. 215; Citizens' Bank v. Wright, 6 Oh. St. 318; Commonwealth v. Martin, 170 Pa. St. 118; Peters V. Auditor, 33 Grat. 368; State v. Hastings, 15 Wis. 83.

Revenue was given the power to make regulations to carry the act into effect. The petitioner, a dealer in oleomargarine, failed to comply with these regulations. Prosecution was begun against him for the penalty for the failure to do anything required by the act. Upon the question whether the failure to obey the regulations came under this head the lower court divided.

In the Supreme Court of the United States the opinion was given by Mr. Justice BLATCHFORD: It would be a very dangerous principle to hold that the thing prescribed by the Commissioner of Internal Revenue as a need for regulation under the oleomargaine act for carrying it into effect should be considered as a thing required by law. Regulations prescribed by the President and by the heads of the Departments under authority granted by Congress may be regulations prescribed by law. They are lawful to support acts done under them and in accordance with them, and may thus in a proper sense have the force of law; but it does not follow that a thing required by them is a thing required by law so as to make the neglect to do it a criminal offense.

The principles employed in the last opinion are fair enough; for this is a delegation of legislative authority that makes the statute is void; but the application of these principles may well be questioned, for it seems that these regulations are not much more than the detail to a general statute. That is in effect the holding in the second case In re Kollock, 165 U. S. 535 (1897)—which must now be regarded as the ruling case. The act in its then form required packages to be marked and branded; prohibited the sale of packages that were not; and set down the punishment for sales in violation of its pro


visions. It next authorized the Commissioner to make regulations describing the marks and brands to be used. This proceeding was a habeas corpus on the ground of the unconstitutionality of that provision.

Mr. Chief Justice FULLER supported this statute: Considered as a revenue act the designation of stamps, marks and brands is merely the discharge of an administrative function, and falls within the numerous instances of reg. ulation needful to the operation of the machinery of particular laws, authority to make which has always been recognized as within the competency of the legislative power to confer. The identification of dealer, substance, quantity, &c., by marking and branding must be regarded as a means to effectuate the objects of the act. And we are of opinion that leaving the matter of designating the marks, brands and stamps to the Commissioner in. volved no unconstitutional legislation.103

$ 134. Administration by adjudication.

. All that has been laid down as to the limitation of the administration to its jurisdiction applies with peculiar force in the judicial proceedings of the administration. Indeed, at that stage of the problem the situation is plain to any one used to the law governing the jurisdiction of courts of law. No tribunal can be final judge of its jurisdiction. At any subsequent time it may always be set up, even in collateral proceedings, that the court decides the question without jurisdiction. That, also, is the law in administration by adjudication.

103 ADMINISTRATION BY LEGISLATION.—United States v. 200 Barrels, 95 U. S. 571; Merritt v. Welsh, 104 U. S. 694; Morrill v. Jones, 106 U. S. 466; Campbell v. United States, 107 U. S. 410; United States v. Eaton, 144 U. S. 677; In re Kollock, 165 U. S. 535; Boske v. Comingore, 177 U. S. 459; United States v. Ormsbee, 74 Fed. 209; United States v. Dastervignes, 118 Fed. 199; Bloxham v. Consumers' St. R. Co., 36 Fla. 543; Orne v. Barstow, 175 Mass. 193; Matter of Spangler, 11 Mich. 323; Holbrook v. Wightman, 31 Minn. 172; Hilburn v. St. Paul R. R., 23 Mont. 249; State v. Davis, 69 N. H. 350; Hewitt v. Schultz, 7 N. D. 611; Lockwood v. Bank, 9 R. I. 333; Peters v. United States, 2 Okl. 123; McSorley v. Hill, 2 Wash. 651.

A case which involves this issue is Noble v. Logging Railroad, 147 U. S. 171 (1893). This was a bill in equity by the railroad to enjoin the Secretary from revoking an approval of its maps. It appeared in the case that the grants had been duly made. Later there was an attempt to retake the land on the ground that the railroad was not a public carrier. The fundamental difficulty in the case, one sees, is that the grant had once been made; so that it was claimed that to adjudicate concerning it would not be action concerning public land, but action concerning private land.

The opinion of Mr. Justice BROWN was in part as follows: In the present case it is charged that there are certain facts which are strictly jurisdictional, the existence of which is necessary to the validity of the proceeding, and without which the act of the court is a nullity. If the Land Department issues a patent for land which has already been granted to another person, the act is not voidable merely, but void. The proceeding is a nullity and its invalidity may be shown in a collateral attack. Upon the other hand, if the patent be for land which the department had authority to convey, but if it was imposed upon or induced by false representations to issue a patent, the finding of the department cannot be collaterally impeached.

A well known case on this same principle is In re Fassett, 142 U. S. 479 (1892). A Collector of Customs


. seized the yacht Conqueror, alleging that the vessel was


liable to duty as an imported article. It was asserted by the owner that he had no intention of bringing the yacht within the United States. He claimed, therefore, that the Collector had no jurisdiction. Now the Collector may levy proper duties upon imported articles; may he, therefore, say what articles are imported articles?

The court by Chief Justice FULLER showed: This was not a question which the collector was to decide within his discretionary powers. Because this is a question of jurisdiction, no appeal is provided. That is no process to bring up for review the question of whether an article is imported merchandise or not. Nor is the ascertainment of that fact such a decision as has been provided for by any process of the administration.1


$ 135. Extent of jurisdiction.

One other case to enforce this principle of the extent of the jurisdiction of the administration is Marquez v. Frisbie, 101 U. S. 473 (1879). This bill was filed in the state court by the complainant, alleging that, having the requisite qualifications of a pre-emptor, he had settled upon a tract of the public land; but that the proper register had refused to receive the purchase money upon the ground that the Commissioners had ordered the sur

104 ADMINISTRATION BY ADJUDICATION.–Lawrence V. Caswell, 13 How. 497; Marquez v. Frisbie, 101 U. S. 473; Oelbermann v. Merritt, 123 U. S. 363; Wisconsin Cent. R. R. v. Forsythe, 159 U. S. 61; Clark v. Herington, 186 U. S. 210; Ex parte Selma R. R., 46 Ala. 423; Ex parte Bridge Co., 62 Ark, 461; United States v. Douglass, 19 D. C. 99; Pensacola R. R. v. State, 25 Fla, 310; Chicago, etc., R. R. v. Atchison Co. Com’rs, 54 Kan. 781; People v. Dental Examiners, 110 Ill. 180; Miller v. Horton, 152 Mass. 540; Merrill v. Humphrey, 24 Mich, 170; State v. Chicago, etc., R. R., 38 Minn. 281; State v. Chicago, etc., R. R., 29 Neb. 412; Stuart v. Palmer, 74 N. Y. 183; Bartlett v. Wilson, 59 Vt. 23; State v. Cheney, 45 W. Va. 478.

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