§ 91. Regulations conditioning statutory rights: Ministerial duty. In the case of Campbell v. United States (29) an act of Congress had "allowed, on all articles wholly manufactured of materials imported, on which duties have been paid, when exported, a drawback equal in amount to the duty paid on such materials, and no more, to be ascertained under such regulations as shall be prescribed by the secretary of the treasury." The secretary established such regulations, but in the case at hand the collector had merely acknowledged the receipt of the entry required by the regulations and had refused to make the subsequent examination of the articles intended for export or to give the drawback certificate based on it. This refusal of the collector, under the instructions of the secretary of the treasury, to carry out the regulations, was held by the court of claims to defeat Campbell's claim, but the Supreme Court took a different view. It said: "It is an error to suppose that the officers of customs, including the secretary, are in regard to this law created a special tribunal to ascertain and decide conclusively upon the right to drawback. Their function is entirely ministerial. They are authorized to pass upon no question essential to the claimant's rights so as to conclude him in a court of competent jurisdiction. From the moment he presents his sworn entry, they simply ascertain quantities, identify and mark packages, accept bonds and sureties, and see that the exported article leaves the port in the ship. These and like duties being discharged, it is the collector's duty-a mere ministerial

function-to give the certificate of drawback. The amount of it is fixed at seventeen cents per hundred pounds by the regulation, he has nothing to do but to calculate the amount at that rate on the number of pounds shipped. He exercises no judicial or quasi-judicial function. He concludes nobody's right and has no power to do so. The rights which the law gives cannot be defeated by his refusal to act, nor by his decision that no drawback was due."

§ 92. Same: Discretionary duty. In Dunlap v. United States (30) it was held that there the right of the plaintiff was conditioned by the secretary's action in failing to make regulations, but the situation was quite different. Congress had provided that "any manufacturer finding it necessary to use alcohol in the arts, or in any medicinal or other like compound, may use the same under regulations to be prescribed by the secretary of the treasury, and, on satisfying the collector of internal revenue for the district wherein he resides or carries on business that he has complied with such regulations and has used such alcohol therein, and on exhibiting and delivering up the stamps which show that a tax has been paid thereon, shall be entitled to receive from the treasury of the United States a rebate or repayment of the tax so paid." As soon as the act containing the above provision became a law, Congress adjourned, and at its first meeting the secretary reported a draft of regulations he desired to prescribe, stating that their enforcement would cost half a million dollars annually for which no appro

priation was available, and that therefore he could not execute the section till Congress took further action, and finally, a little less than two years later, the section was repealed. Dunlap claimed a rebate in accordance with the terms of the statute, but the court said that it did not consider the duty of the secretary in this case to be merely ministerial as in the former case, but that in its opinion Congress "manifestly regarded adequate regulations to prevent loss through fraudulent claims as absolutely an essential prerequisite, and may reasonably be held to have left it to the secretary to determine whether or not such regulations could be framed, and if so, whether further legislation would be required. The court said: "If the duty of the secretary to prescribe regulations was merely ministerial, and a mandamus could, under the circumstances, have issued to compel him to discharge it, would not the judgment at which he arrived, the action which he took and his reference of the matter to Congress, have furnished a complete defense?" So the court held that in this case the statutory right was conditioned on the regulations, though four of the justices dissented.

§ 93. Regulations must be in accord with the law. In the case of United States v. Symonds (31) a lieutenant in the navy sued the United States to recover the difference between pay for shore and sea-duty as absolutely fixed by § 1556 of the revised statutes. The reason that only land pay had been allowed him was that the order of the secretary of the navy of July 7, 1882, without modifying

the previous order that Symonds should perform the duties of executive officer of the New Hampshire, declared that the ship would not be considered as in commission for sea service after August 1, 1882. But the court held it of no consequence that the New Hampshire was not, during the period in question, in such condition that she could be safely taken out to sea beyond the mainland, that it was sea-duty and that accordingly Symonds had a right to sea-pay, notwithstanding the secretary's order. And in speaking of the navy regulations of 1876 the court remarked: "The authority of the secretary to issue orders, regulations and instructions, with the approval of the President, in reference to matters connected with the naval establishment, is subject to the condition necessarily implied that they must be consistent with the statutes which have been enacted by Congress in reference to the navy. He may, with the approval of the President, establish regulations in execution of, or supplementary to, but not in conflict with, the statutes, defining his powers or conferring rights upon others."

SECTION 4.

ADMINISTRATIVE CONTROL.

§ 94. Direction of officers. As we have seen (§ 55, above), the state courts have not considered the responsibility for the enforcement of the laws generally to lie with the governor and so have denied him the right of removal. As we have also seen (§ 61, above), however, the practice of the Federal government has been different from that of the states in this regard, and with the power or removal has gone the power of direction. It was the

the government deposits from the United States bank that caused President Jackson to remove him.

Thus the right of direction, now a fundamental principle of our national administration, seems to have sprung from the right of removal, but it does not follow from this, now that the right of direction has come to be recognized, that its only means of enforcement is the right of removal. In United States v. Black (32) appeal had been made from the decision of the commissioner of pensions to the secretary of the interior, but the former had refused to carry out the latter's decision and mandamus was asked to compel him to do so. The commissioners suggested that there were other effectual remedies, such as a suit for damages or an exercise of the power of removal, so that it was not a proper case for mandamus, but the court did not concur in this view. It said: "A suit for damages, if it could be maintained, would be an uncertain, tedious and ineffectual remedy, attended with many contingencies, and burdened with onerous expenses. Removal from office would be still more unsatisfactory. would depend on the arbitrary discretion of the President, or other appointing power, and is not such a remedy as a citizen of the United States is entitled to demand. We think that the case suggested by the petition is one in which it would be proper for the court to interfere by mandamus."

It

§ 95. Same: Statutory qualifications of this. But it is not true that the head of a department has the right of direction over all matters attached to his department.