Point at issue really was whether an

court should

However, as Professor Powell points out, all that the case clearly decided was that it may be finally determined by officers official or the of administration whether a Chinese person seeking admission was born here or not. Such a decision was absolutely necessary if there was to be any limitation upon immigration and if the courts were to be kept free for their own proper functions.

decide question

Appeal allowed from subordinate official to head of

department

Decision of head of

department reviewable by court on questions of (1) jurisdiction

(2) hearing

(3) impartiality

Due process of law can rightly demand no more than that the procedure devised for reaching this decision give to the individual every opportunity to establish his rights, consistent with maintaining the orderly and efficient administration of the government.1

It must not be thought, however, that the decisions of subordinate administrative officials or even heads of departments are necessarily final and never subject to review by the courts. In the first place, the court has said: ". . . The official duty of direction and supervision . . . implies a correlative right of appeal... in every case of complaint, although no such appeal is expressly given. "2 Furthermore such appeals are generally expressly provided for by statute. It must be noted, moreover, that the courts will not interfere and grant relief until this right has been utilized and the decision of the subordinate has been sustained by the superior officer.

The final decision of the head of a department or of the president is also reviewable by the court under certain conditions. In the first place, the jurisdiction of the administrative agent is always open to examination. It must be clearly shown that the officer or department deciding the case has received such power by statute, and that the case is one which properly falls within the terms of the statute. In the second place, the courts will determine whether the administrative agents have followed the essential principles of "due process of law." As has been shown, these need not involve a judicial examination and may be satisfied by an informal hearing. In the third place, although wide discretionary power may be granted to officials, their decision

1 American Political Science Review, Vol. I, pp. 582, 597.

2 Butterworth v. United States, 112 U. S. 50, 57. In this particular case it held that appeal from the decision of the Commissioner of Patents, in certain cases, lay not to the Secretary of the Interior but to the Supreme Court of the District of Columbia.

(4) constitutionality of

law under which official acts

Decision of be founded

official must

on facts ascertained by

evidence not

upon mere

opinion

must rest upon reason, justice, and impartiality, and must be exercised in the execution of policies predetermined by legislative act or fixed by common law." 1 In the fourth place, the courts will grant relief from any decision of an administrative officer contrary to the Constitution, common law, or particular statute. Certain cases will make some of the points clear. It was held in 1902 that a fraud order could not be issued simply upon the Postmaster-General's personal judgment as to the fraudulent character of the business, but that his judgment must be one founded on fact ascertained by evidence.2 In 1913 two reversals of decision of the Secretary of Commerce brought about considerable discussion and well illustrate the control which may be exercised by the courts. The first was in regard to General official must Castro, the former president of Venezuela, who was denied law correctly admission by the immigration officials on the ground that he castro case had murdered General Paredes. The statute upon which the official relied excluded persons who had been convicted or admitted having committed felony or other misdemeanors involving moral turpitude. The courts overruled the decision of the secretary on the ground that as General Castro had never been convicted, "the only proof competent for the immigration authorities to receive, on which to base an order of exclusion, is the alien's own admission, nor can this be presumed by his refusal to answer questions put to him by the immigration authorities with reference to such alleged crime." 3

interpret the

In the other case, Mylius, who had been convicted of criminal Mylius case libel of the king of England, was denied admission, but released on the following grounds: (1) that the immigration authorities acting in an administrative not judicial capacity must follow definite standards and apply general rules; (2) criminal libel, being a misdemeanor at common law, was not an offense involving moral turpitude for which the offender should be excluded.4 From these two cases it will be seen with what care and how strictly the courts limit the conclusiveness of the decisions of

1 W. W. Willoughby, The Constitutional Law of the United States, Vol. II, 2 Amer. School of Magnetic Healing v. McAnnulty, 187 U. S. 94. 3 United States ex rel. Castro v. Williams, 203 Fed. Rep. 155.

p. 1293.

United States ex rel. Mylius v. Uhl, 203 Fed. Rep. 152.

Liability of officials for

(1) acts not justified

by the law:

(a) personal acts unconnected with

official duties

(b) official acts beyond the law

[Remedies in

the hands of

the courts]

(2) official acts within the law

administrative officials. But when such officials act within limits laid down by common law, the Constitution, and statutes, their decisions are final and not subject to reversal by judicial process.

It is a general principle of both English and American law that officials possess no immunities resulting from their official positions. Like other individuals they may be held responsible for their acts. They may be sued in the courts and compelled to pay damages for injuries they may have committed. In theory at least the same rules of law are applied to them as are applied to other citizens. Nevertheless, the growth of governmental activities has produced certain exceptions. The reasons for these exceptions can perhaps best be seen from the following classification of acts of officials.

Acts not justified by law include (1) purely private or personal acts unconnected with official duties. For acts of this sort an official is held responsible just as is any other citizen. He may be punished for a crime or compelled to pay damages for a tort. For example, if a government clerk commits theft, assault, or trespass, the fact that he holds an official position in no way exempts him from the consequences of his act. (2) A second class of acts not justified by law are acts performed in the line of official duty but contrary to or beyond the powers granted by the statute. For these acts the officer is also liable. The person aggrieved may sue him in the court and may be awarded damages. The relief given to the injured party, however, is limited by the resources of the official. Damages for unlawful acts are to be obtained not from the state but from the person performing the act.

The remedy is in the hands of the courts. The courts interpret the law and determine the jurisdiction of the officers. Thus every act of every official, in theory at least, may be reviewable by the courts. But, as has been shown, the question to be decided by the court is simply one of jurisdiction. If the court holds that the act was within the powers granted by the law, the official is relieved from all personal liability for damages.

Official acts performed within the terms of the statute are of two sorts: (1) acts involving discretion or judgment and (2) purely ministerial acts involving no discretion or judgment upon the part of the official. The courts will take no cognizance

of the first class. Officials have been appointed or selected to use their judgment, and the courts cannot substitute their opinion for the discretion of the official. Neither will the courts award damages either against the official or the state for unwise or mistaken use of official discretion. The only appeal is to the political department of the government. Congress may appropriate money by way of relief directly or may refer the determination of the question to the Court of Claims. In either case the pecuniary relief comes not from the legal decree of a court but from the political action of Congress.

(a) Discretionary acts not reviewable by

courts

terial acts

Ministerial acts involving no discretion are reviewable by the () Miniscourts. For a wrongful act of this sort the court will award dam- reviewable ages. But it must be clearly shown that the party aggrieved has, as an individual not merely as a part of the general public, a right to have the act performed. Thus, a United States marshal is not responsible for the damages suffered by an individual resulting from the failure of the marshal to keep the peace. On the other hand, where the individual has a private interest in the performance of the act the court will grant damages for its nonperformance and compel the official to perform it.

dent

departments

Exceptions of certain officers are made for the convenience Exceptions: of administering the government. The president, like the king (1) The presiof England, is never held personally liable nor subject to judicial summons, although he may be impeached and removed from office. In like manner it was held in Kendall v. Stokes1 that the head of a department was not liable for damages (2) Heads of resulting from an error in judgment on his part. These exceptions, however, lose much of their apparent force when it is remembered that neither the president nor the heads of departments perform many acts unassisted by subordinates. Almost every official act is the actual act of a subordinate, and for that act the subordinate may be held responsible in accordance with the principles just discussed. Hence it is apparent that judicial control and legal liability are never very far removed.2

13 How. 87.

2 For further treatment see F. J. Goodnow, Principles of Administrative Law in the United States, pp. 383-409; W. W. Willoughby, The Constitutional Law of the United States, Vol. II, pp. 1309-1316.

Organization and functions

constantly

changing

CHAPTER X

THE ORGANIZATION AND FUNCTIONS OF THE

EXECUTIVE DEPARTMENTS1

To give in full an account of the work of the executive deof executive partments of the government would entail writing an exhaustive departments and encyclopedic description of the manifold operations of the government. To be complete and accurate this would involve detailed quotations from numerous statutes, not merely those which prescribe the functions of each department but the appropriation bills which are constantly prescribing changes and new duties. Even this description would soon be inadequate, for the government is not static, and changes in organization are constantly being made and new functions constantly being added. Only the volumes of the Statutes at Large and the annual compendious official summaries can give an adequate picture of the actual conditions and operations. Nevertheless, it is advisable to give some idea of the outlines of departmental organization and the chief duties of the various main departments, together with a brief account of some of the more important detached and miscellaneous bureaus. Even in this outline it should be remembered that, since the passage of the Overman Act, the president has been allowed to transfer and change the duties of the various departments and bureaus as the necessities of the late war might demand. The ending of the war brought about changes in departmental organization which will probably be followed by still further readjustments. The conditions and duties here described, however, are those which normally exist in time of peace, although some of the more important changes made necessary by the war are indicated.

1 See J. A. Fairlie, The National Administration of the United States; The Congressional Directory; H. C. Gaus, The American Government, Organization and Officials, with the Powers and Duties of Federal Office Holders (an extensive compilation).