§ 84. Power of final determination of fact of citizenship. In another place will be considered the proceedings under the Chinese exclusion acts (§ 105, below). In the case of United States v. Ju Toy (21) the United States Supreme Court went so far as to hold that even on a question of citizenship the decision of the secretary of commerce and labor might be final where no abuse of authority was alleged. The court said: "The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate. If, for the purpose of argument, we assume that the Fifth Amendment applies to him and that to deny entrance to a citizen is to deprive him of liberty we nevertheless are of the opinion that with regard to him due process of law does not require a judicial trial. That is the result of the cases which we have cited and the almost necessary result of the power of Congress to pass exclusion laws. The decision may be entrusted to an executive officer and his decision is due process of law." § 85. Power of final determination of mixed questions of law and fact. In the case of American School of Magnetic Healing v. McAnnulty (22), the postmaster-general had excluded literature on mental healing from the mails under his power to exclude fraudulent matter, but the court held that how far the claim of mental healers were borne out by actual experience was a matter of opinion and that, unless the question could be reduced to one of (21) 198 U. S. 253. (22) 187 U. S. 94. fact as distinguished from opinion, it could not be said to be a matter of fraud. It said that this was a matter of law on which the decision of the postmaster-general was not final; but in the case of Bates & Guild Co. v. Payne (23), where the postmaster had decided that a publication known as "Masters in Music" was really sheet music disguised as a periodical and so not to be entered as second class mail matter, the court said that though the question was largely one of law there was some discretion "left in the postmaster-general with respect to the classification of such publications as mail matter, and that the exercise of such discretion ought not to be interfered with unless the court be clearly of opinion that it was wrong.' And it seems clear that at common law there were considered to be many questions both of law and fact, not going to the jurisdiction, which administrative bodies might determine without review by the courts. § 86. Local administrative bodies. But the principle that administrative bodies should not exercise judicial powers does not apply to local administrative bodies. Thus, mayors of towns have frequently exercised judicial functions, and the duties of county courts have been both judicial and administrative, but in deference to long tradition the courts have not felt inclined to interfere. See the article on Constitutional Law, § 23, in Volume XII of this work. SECTION 3. ADMINISTRATIVE REGULATIONS. § 87. Pilotage. In the case of Martin v. Witherspoon (24) it was held, under an order of the governor and (23) 194 U. S. 107. council, providing that an outward bound vessel, liable to pilotage if inward bound, should be held to pay pilotage to the pilot offering his services whether such services were accepted or not, that a pilot could recover the pilotage fees from the owner of the vessel. The court said: "This is not a surrender of the power of legislation to the governor and council upon the recommendation of the public commissioners, but simply an authority to control, in the matter of pilotage, the vessels going out of the harbor, as well as those coming into it. Such regulations are in the nature of police regulations, the making of which, within defined limits, may be entrusted to other bodies than the legislature. It would not be questioned, we presume, that the governor and council might change the lines within which pilots are to be taken by incoming vessels, yet this would be to fix the liability of the vessel for pilotage by a regulation. It is hardly more to prescribe under what circumstances outgoing vessels shall be compelled to take pilots, legislative regulation having already determined in most important respects the duties of pilots in relation to such vessels, and provided that they shall only be required to take pilots from their port of departure." g 88. Health. Health is another of the great number of matters that have been the subject of administrative regulation. In Blue v. Beach (25) the plaintiff asked for an injunction to prevent the teacher and superintendent of a school in the city of Terre Haute from excluding his son from the school. The exclusion had been made under (25) 155 Ind. 121. an order of the local board of health, pursuant to a rule of the state board of health, that in all cases where an exposure to smallpox was threatened, it should be the duty of the board of health within whose jurisdiction such exposure should have occurred to compel the vaccination of all exposed persons. The validity of this rule was attacked, but the court said: "In order to secure and promote the public health, the state creates boards of health as an instrumentality or agency for that purpose, and invests them with the power to adopt ordinances, by-laws rules, and regulations necessary to secure the objects of their organization. While it is true that the character or nature of such boards is administrative only, still the powers conferred upon them by the legislature, in view of the great public interests confided to them, have always received from the courts a liberal construction, and the right of the legislature to confer upon them the power to make reasonable rules, by-laws, and regulations, is generally recognized by the authorities." After referring to decisions in other states holding that it was beyond the powers of state boards of health, acting without express statutory authority, to exclude children for not being vaccinated in the absence of any special danger, the court said that, as the rule in question made vaccination necessary only in case of danger, its validity was consistent with the holdings in those cases and refused the injunction. § 89. Use of records. In Boske v. Comingore (26) a proceeding had been instituted in a Kentucky court for (26) 177 U. S. 459. the purpose of ascertaining the amount of whisky which the defendants had in their bonded warehouse but which they had not listed for taxation, and in the course of the proceeding they took the deposition of Comingore, collector of internal revenue, but the latter refused to file with his deposition copies of certain reports made to him by the distillers of liquors in their warehouses because of certain regulations formally promulgated by the commissioner of internal revenue with the approval of the secretary of the treasury, forbidding the use of the records in the hands of the collectors for any other than revenue purposes. Comingore was ordered to pay a fine for contempt of court for not producing the record, and on refusal to pay the fine was taken into custody by the sheriff, whereupon he sued out a writ of habeas corpus in the United States courts. On appeal to the Supreme Court of the United States it was held that the same presumption was to be made in favor of the validity of regulations as is made with regard to the constitutionality of statutes, that reasons of public policy might have suggested the necessity of guarding the information gained by the treasury department so as not to affect private business, while on the other hand great confusion in the records might have resulted if their use had not been properly regulated. So the regulations were upheld and the discharge of the collector affirmed. § 90. Supplementing penal legislation. In the case of In re Kollock (27) Congress had provided that packages of oleomargarine should be marked and branded and (27) 165 U. S. 526. |