official duty, where a public officer has assumed as such to do any act which could be lawfully done only under the protection and by virtue of official power, that he was authorized to do the act in the manner and under the circumstances existing and adopted in that case," but, "to this presumption of the due execution of official authority certain exceptions exist. Thus where the officer acts under a naked statutory power with a view to divest, upon certain contingencies, the title or right of a citizen, as in the case of a sale of land for taxes or its seizure under the right of eminent domain, the regularity of the proceeding will not be presumed, but it is incumbent upon the person claiming by virtue of them to show that every preliminary step required by the law has been taken” (15).

§ 80. Ratification. The rules with regard to ratification treated in the article on Agency in Volume I of this work apply to public officers as well, though of less frequent application. Their most frequent application is in time of riot, insurrection, or war. Here, as in private agency, the principal cannot render valid what it would not have had the power to authorize at the time. Thus, in Marsh v. Fulton County (16) it was claimed that even if the bonds in question had not been properly authorized that they had been validated by ratification, but the court said: "The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without previous sanction of the qualified voters of the county. The supervisors in that particular were mere

(15) Mechem, Public Officers, secs. 525, 581.

agents of the county. They could not, therefore, ratify a subscription without a vote of the county, because they could not make a subscription in the first instance without such authorization."

§ 81. Delegation. It is a general rule that administra tive officers charged with ministerial duties may delegate them to subordinates, but where there is a special confidence imposed or where the duties call for the exercise of judgment or discretion they cannot be delegated to others. Thus, in Attorney-General v. Jochim (17) the secretary of state, the state treasurer, and the commissioner of the state land office composed the board of state canvassers, and their only duties as such were to canvass the returns from the various counties of the state and declare the result of elections for state officers and upon constitutional amendments. The court said: "It appears to have been the design of the lawmakers to place the votes of the people in the keeping of the most responsible officers of the state; and no argument ought to be necessary to show that it was not expected that the returns would, upon their arrival, be turned over to an irresponsible clerk in the secretary's office, having no official relation to the canvass, and that the mere signing of their three names to his production should constitute a full compliance on the part of these officers with the law prescribing the duties of state canvassers." Accordingly the court held that their action in this matter was a sufficiently gross neglect of duty to warrant removal by the governor. The rule has been most often applied to judicial and municipal officers.

As will be seen in the next section, however, legislatures can delegate to municipal corporations the ordinance power, the power to determine certain facts upon the happening of which a law shall go into operation, and the power to issue administrative regulations.

SECTION 2. JUDICIAL POWERS OF ADMINISTRATIVE BODIES.

§ 82. Power to punish for contempt. In the case of Langenberg v. Decker (18) the general assembly of the state had attempted to confer on the state board of tax commissioners power to send for persons, books and papers, to examine records, to hear and question witnesses, and to punish for contempt those refusing to appear or answer questions, by fine not exceeding one thousand dollars and imprisonment not exceeding thirty days or both -and in pursuance of this power the commissioners, on the refusal of Decker to appear and answer questions, imposed a fine on him and committed him to jail, but the court held that "the power to punish for contempt belongs exclusively to the courts, except in cases where the constitution of a state expressly confers such power upon some other body or tribunal." In the case of Interstate Commerce Commission v. Brimson (19), where Congress had authorized the interstate commerce commission to require the attendance and testimony of witnesses and the production of papers, and in case of disobedience to invoke the aid of the United States courts; and in pursuance of the statute the commission had petitioned in the United States circuit court that an order might be made

(18) 131 Indiana, 471.

requiring certain witnesses to appear before them and answer certain questions, the Supreme Court of the United States held that the order should have been granted. It said: "As the issues are so presented that the judicial power is capable of acting on them finally as between the parties before the court, we cannot adjudge that the mode prescribed for enforcing the lawful orders of the interstate commission is not calculated to attain the object for which Congress was given power to regulate interstate commerce." But it has been held constitutional for a tax collector to arrest a person for the nonpayment of taxes (§ 108, below).

§ 83. Power to pass on title to realty. In the case of People v. Chase (20) the legislature of Illinois had passed an act concerning land titles which provided that one claiming to own land might apply to the registrar of titles to have his title registered, that it then became the duty of the registrar to examine into the truth of the facts stated in the application and other pertinent facts, and to notify all interested persons at least ten days before the granting of the certificate of registration. It was then the duty of the registrar, aided by two examiners, to settle any issue between the parties, or, in case there was no contest, the claim of ownership, and, in a proper case, to issue the certificate of ownership which could not be contested after five years except under special circumstances. The supreme court of Illinois considered that this was a clear case of conferring judicial power on an administrative officer and declared the act unconstitutional.

§ 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.