§ 76. Abuse of discretion. But even though the act is within the jurisdiction of the officer and his determination is made final he must not abuse his discretion. Thus in the case of United States v. Ju Toy (10) the Supreme Court of the United States held that under the exclusion act it was within the power of the secretary of commerce and labor to pass conclusively on the citizenship of a Chinese claiming admittance into the country, but intimated that it would have looked into any abuse of authority if such had been alleged. In the case of Dental Examiners v. People (11), where the Illinois state board of dental examiners were required to issue licenses to any regular graduate of any reputable dental college, it was admitted that the courts would not control the discretion of the board in determining which were reputable dental colleges, but it was said: "If a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise. They will interfere where it is clearly shown that the descretion is abused." And so in the case at hand the court held that as the dental examiners, by not denying the facts of the petition, had admitted that the dental college in question was "reputable," not to grant the license was a gross abuse of the discretion vested in them, which would not be tolerated.

§ 77. Disqualification on account of interest. It is an old maxim that no one should be a judge in his own cause, but the principle involved is not confined to judges. In

(10) 198 U. S. 253.

Goodyear v. Brown (12) the deputy secretary of internal affairs had procured a warrant to be issued to himself for nine hundred acres of land alleged to be vacant but on which the plaintiff and those through whom he derived title had paid taxes for nearly a century and which he claimed to be covered by an old warrant. He protested to the board of property of which the secretary of internal affairs was a member, but this tribunal decided against him and a patent was issued to the deputy secretary. The plaintiff then appealed to the courts, but he was at a great disadvantage, as "every paper and every scrap of evidence relating to the issuing, location and return of his warrant, was in the possession and under the control of his adversary" in the secretary's office. The court held that the warrant issued to the deputy secretary conveyed no title and said: "Whether we consider the interests of the citizens for whose security and protection the state exists, or the preservation of public confidence in the purity of the administration of public affairs, or the honor and character of the officer as a public servant, the conclusion reached is the same. Public policy cannot tolerate such dealings by an officer with his own department or office. It will not uphold them."

§ 78. Mandatory and directory statutes. In the case of French v. Edwards (13) the defendant asserted title to the premises in question under a sheriff's deed for unpaid taxes, and the whole question turned on the validity of the deed. The statute provided that the sheriff should only sell the smallest quantity of the property which any

(12) 155 Pa. St. 514.

purchaser would take and pay the judgment and costs, and this provision the sheriff had not complied with. Mr. Justice Field, for the court, said: "There are undoubtedly many statutory requisitions intended for the guidance of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise." Accordingly the deed was held void. Similarly, where sealed bids had been required and part of the articles furnished were not included in the bid but were purchased in the open market, it was held that the warrant for the supplies was void on the ground that the provision as to sealed bids was mandatory (14).

§ 79. Presumptions. It is said by Mechem that "it is a constant presumption, attending the execution of

Goodyear v. Brown (12) the deputy secretary of internal affairs had procured a warrant to be issued to himself for nine hundred acres of land alleged to be vacant but on which the plaintiff and those through whom he derived title had paid taxes for nearly a century and which he claimed to be covered by an old warrant. He protested to the board of property of which the secretary of internal affairs was a member, but this tribunal decided against him and a patent was issued to the deputy secretary. The plaintiff then appealed to the courts, but he was at a great disadvantage, as "every paper and every scrap of evidence relating to the issuing, location and return of his warrant, was in the possession and under the control of his adversary" in the secretary's office. The court held that the warrant issued to the deputy secretary conveyed no title and said: "Whether we consider the interests of the citizens for whose security and protection the state exists, or the preservation of public confidence in the purity of the administration of public affairs, or the honor and character of the officer as a public servant, the conclusion reached is the same. Public policy cannot tolerate such dealings by an officer with his own department or office. It will not uphold them."

§ 78. Mandatory and directory statutes. In the case of French v. Edwards (13) the defendant asserted title to the premises in question under a sheriff's deed for unpaid taxes, and the whole question turned on the validity of the deed. The statute provided that the sheriff should only sell the smallest quantity of the property which any

(12) 155 Pa. St. 514.

purchaser would take and pay the judgment and costs, and this provision the sheriff had not complied with. Mr. Justice Field, for the court, said: "There are undoubtedly many statutory requisitions intended for the guidance of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise." Accordingly the deed was held void. Similarly, where sealed bids had been required and part of the articles furnished were not included in the bid but were purchased in the open market, it was held that the warrant for the supplies was void on the ground that the provision as to sealed bids was mandatory (14).

§ 79. Presumptions. It is said by Mechem that "it is a constant presumption, attending the execution of