from the relatively slight importance of some of the measures and from the increasing fatigue and decreasing attention of the voter. An initiative measure stands little chance of enactment unless it is a very brief proposal of a single, simple change in existing law. The voters are showing a canny wariness as to involved schemes for the radical "reform" of their system of government, submitted for their Yes or No. They are appreciating more clearly that such propositions may need searching analysis and painstaking amendments at the hands not of a group of like-minded advocates but of a body genuinely representative of Oregon's varied citizenship, and that the initiative does not afford opportunity for this needful work.

"It's like voting a bed-quilt!" was the comment of a Portland policeman, as he came from the polls in 1910. The ballot last November was yet larger: 34 inches long by 18 inches wide. On that ballot 16,910 voters recorded their solemn approval of a proposed law requiring that the sheets on hotel beds should be at least 103 inches long and 81 inches wide. Of more importance than a law prescribing minimum dimensions for sheets would be one prescribing maximum dimensions for ballots-or rather, a maximum limit upon the number of measures to be submitted thereon. How soon will Oregon leaders become convinced that restraint in the use of the initiative is one of the conditions most essential to its usefulness? Or does the adoption of the initiative lessen the opportunity for genuine leadership, by laying open the ballot to invasion by dozens of measures with no responsible backing, brought there by the good-natured heedlessness of petition signers, and distracting the voter's attention from the questions of real moment?

WORCESTER, MASSACHUSETTS.

GEORGE H. HAYNES.

SEPARATION OF POWERS: ADMINISTRATIVE EXERCISE OF LEGISLATIVE AND JUDICIAL POWER '

A

II. PRINCIPLES OF JUDICIAL REVIEW

1. Introduction

LTHOUGH in many instances administrative authorities

may perform functions which cannot be differentiated from those commonly exercised by the legislature or by the judiciary, it is not to be inferred that the attempt to transmute the theory of the separation of powers into a rule of law has been wholly ineffective. Inroads upon the theory have been permitted only where the courts find some over-ruling governmental necessity or where the interest subjected to administrative interference is not within the fold of constitutional protection.

It is true that in most of the instances where the doctrine has been invoked in judicial proceedings to resist the action of administrative authorities, the contention has not been sustained. But this is due to the fact that the legislatures have been cautious in not extending the power of the administration beyond the boundaries which the courts have described. The subject matters which continue to be dealt with by courts and legislatures far exceed both in number and importance those committed to the care of administrative authorities. With the increasing complexity of social and economic conditions and the consequent widening of the field of governmental activity, the scope of administrative power is being constantly enlarged. But the hand of the court is always at the throttle to stay any advance which in its opinion is an unwarranted invasion of private right. Where for any reason the power vested by statute in an administrative body is deemed to exceed that permitted by the Constitution, the courts will treat any action taken under the delegation as entirely invalid."

1 The first part of this study was printed in the POLITICAL SCIENCE QUARTERLY, vol. xxvii, pp. 215-238.

2 Portland v. Bangor, 65 Me. 120 (1876); cf. part i, of this study, loc cit., p.

Even where the courts concede that the administration has power to act, the specific action taken remains subject to judicial supervision. A distinction is to be noted, however, between the relief which may be granted in reviewing an administrative regulation, which promulgates a general rule to govern all future instances that may arise within the scope of its provisions, and the relief available when the court is considering an administrative finding of fact or application of law to facts found.

Where the administrative action is in the nature of an adjudication, the court may reëxamine the evidence and determine the fact for itself or apply some other rule of law than that adopted by the administration. It may itself do the very work entrusted to the administration, if in its opinion this work was improperly performed. But if for any reason the court disapprove of an administrative regulation, judicial relief must be confined to nullifying the administrative action and treating the matter in litigation as though no provisions beyond those contained in the statute had been promulgated or authorized. The court cannot put forth a new regulation, although its opinion may indicate what new regulation would be sustained. If the provisions of the regulation are separable, the regulation may of course be declared invalid in part only. In so far as prosecutions for violation are concerned, special orders of individual application are controlled by the same considerations which apply to general regulations. The court can merely declare the order void or valid. If, however, the administration is seeking judicial enforcement of some order directing specific remedial action, the court is not confined to the two alternatives of granting the decree prayed for or of denying all relief. Such part of the order as the court deems excessive may be regarded as separable. The court may, in practical effect,

233, n. 2. Wong Wing v. United States, 163 U. S. 228 (1896); cf. part i, loc cit., p. 235, n. 3.

1 State ex rel. McCleary v. Adcock, 206 Mo. 550 (1907). Miller v. Horton, 152 Mass. 540 (1891).

'Johnson v. Towsley, 13 Wallace, 72 (1871). Turner v. Williams, 194 U. S. 279 (1904).

modify rather than annul the administrative order,' which amounts to much the same thing as annulling it and issuing a new order in its place.

The reason underlying this distinction must be as follows. The promulgation of regulations partakes of the nature of action commonly exercised by legislative bodies. Power to take such action may, from the point of view of actual practice though not in judicial theory, be delegated to administrative bodies, but it may not be exercised by the courts, save in certain matters relating to judicial procedure. On the other hand, the function of reaching conclusions of fact from evidence submitted and that of applying rules of law partake of the nature of action regularly exercised by judicial authorities. Though an order directing specific remedial action in respect to a designated concrete thing may be issued by a legislature, such orders are also issued by the courts where the general requirements of a statute have been violated. In these realms, therefore, the courts may substitute their own judicial action for what they regard as the improper action of a judicial nature taken by the administration.

2.

Fudicial control over administrative regulations

An ordinance or regulation will of course always be held invalid for any reason that would nullify the same provisions in a statute. In Illinois Central Railroad Company v. McKendree, a quarantine regulation of the secretary of agriculture was held invalid because sufficiently broad to apply to commerce wholly within a state. Regulations made in the exercise of the police power are regarded with the same critical eye cast upon statutes. In State v. Speyer,3 the regulation of a state board of health prohibiting any pig-pen within one hundred feet of an inhabited dwelling was held void, on the ground that it reached beyond the scope of necessary protection and prevention into the domain of restraint of lawful business and use of property.

1 Health Department v. Dassori, 81 N. Y. State Reporter (47 N. Y. Supp.), 641 (1897). Health Department v. Rector of Trinity Church, 145 N. Y. 32 (1895), semble.

1 203 U. S. 514 (1906).

$67 Vt. 502 (1895).

In fact, these regulations of administrative bodies are accorded even less judicial respect than that given to a statute. In Potts v. Breen' it was held that, in the absence of express authority from the legislature, a certain rule of the state board of health was invalid because unreasonable. The courts exercise the same supervision over the regulations of such state boards as over municipal ordinances. The power to declare these void, when in the opinion of the court they are unreasonable, has long been exercised. It is often justified, however, on the ground that the legislature cannot be presumed to have delegated authority to do a thing unreasonable, the court seeming to assume that the judicial estimate of unreasonableness was the test in the subconsciousness of the legislature.

Since the regulations of the administration are to supplement the provisions of some statute and the power to make them rests upon legislative grant, it is clear that the exercise of the power must not transcend the authority delegated. In Little v. Barreme, a naval officer who had seized a vessel on its voyage from a French port, under a regulation of the secretary of the navy ordering seizure of vessels sailing to or from a French port, was held not protected from civil liability for his act, when the statute by virtue of which the secretary issued his orders authorized the president to instruct commanders to seize vessels only when these were going to a French port.3 So also where the statute made provision for the free introduction of animals imported for breeding purposes," upon proof thereof satisfactory to the secretary of the treasury and under such regulations as he may prescribe," the court held invalid a provision in the regulations that the collector must be satisfied that the animals are of superior stock, as an attempt to incorporate a limitation into the statute where it clearly intended to include animals of all classes. The regulation was in effect an amendment of a revenue law, which could be made only by Congress.

Regulations may not impair rights which flow from the

1 167 Ill. 67 (1897).

12 Cranch 170 (1804).

3 Cf. Hendricks v. Gonzales, 67 Fed. 351 (1895).

4

• Morrill v. Jones, 106 U. S. 466 (1882).