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

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

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

original packages stamped as the commissioner of internal revenue with the approval of the secretary of the treasury should prescribe, subject to fine and imprisonment. Kollock was convicted of violating the statute, but claimed it to be invalid on the contention that it delegated power to determine what acts should be criminal by leaving the stamps, marks, and brands to be defined by the commissioner. His claim rested largely on the case of United States v. Eaton (28), where, under a Congressional provision that "if a person shall knowingly or wilfully, omit, neglect, or refuse to do, or cause to be done, any of the things required by law in the carrying on or conducting of his business, or shall do anything by this act prohibited he shall pay a penalty," etc., there was authority given to the commissioner of internal revenue to make regulations to carry the act into effect, and he had required the keeping of books in a certain form and the making of a monthly return. The court had held in that case that it was necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense and did not think that the statutory authority was sufficient. But the court said that Kollock's case was an entirely different one, as "here the law required the packages to be marked and branded; prohibited the sale of packages that were not; and prescribed the punishment for sales in violation of its provisions; while the regulations simply described the particular marks, stamps, and brands to be used." So Kollock's conviction was upheld.