The question when an administrative discretion is so broad as to amount to a legislative power is one that may not be answered according to any fixed formula, but one that has to be answered in each individual case according to the judgment of the court. During recent years, with the increase of governmental functions, both in number and complexity, and especially with the extension of the law's control over matters of industrial and technical interest, the delegation to administrative agents and in particular to boards or commissions, of wide spheres of discretionary action, has become a necessity. This in turn has given rise to a very great number of cases in both the federal and state courts in which it has been alleged that legislative power has been unconstitutionally delegated. In this treatise it will be clearly impossible to consider more than a few of the more recent and more important cases in which the question has been considered by the Supreme Court of the United States. These will, however, be sufficient to illustrate and exhibit the general principle.

In Buttfield v. Stranahan,6 decided in 1904, the court held valid the grant by Congress to the Secretary of the Treasury of authority to establish standards, upon recommendation of a board of experts, by which should be determined the purity, quality, and fitness for consumption of teas sought to be imported into the United States, and to exclude from importation such teas as should not satisfy these requirements as provided by law. "We are of opinion," say the court, "that the statute, when properly construed . . . but expresses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute." "Whether or not," the court add, "the Secretary of the Treasury failed to carry into effect the expressed purpose of Congress and established standards which operated to exclude teas which would have been entitled to admission had proper standards been adopted is a question we are not called upon to consider. The sufficiency of the standards adopted by the Secretary of the Treasury was committed to his judgment, to be honestly exercised, and if that were important, there is no assertion here of bad faith or malice on the part of that officer in fixing the standards or on the part of the defendant in the performance of the duties resting on him."

6 192 U. S. 470; 24 Sup. Ct. Rep. 349; 48 L. ed. 525.

In Union Bridge Co. v. United States,7 decided in 1907, the general doctrine relating to the delegation of legislative power is again extensively considered, the court in this case sustaining the constitutionality of a statutory grant to the Secretary of War of authority to require changes or alterations in bridges over navigable water ways of the United States when, after a hearing of the parties interested, he is satisfied that the structure as erected or contemplated constitutes or will constitute an unreasonable obstruction to navigation. After a review of the cases, the court declare the statute in entire harmony with the principles announced in them. To deny to Congress the authority thus to delegate to the executive branch of the government the exercise in specific instances of a discretionary power which, from the nature of the case, Congress could not itself exercise, would be, the court say, "to stop the wheels of government, and bring about confusion, if not paralysis, in the conduct of the public business." 8

In St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor9 it was held that legislative power had not been granted to the American Railway Association and the Interstate Commerce Commis-sion by the Safety Appliance Act of 1893, which forbids the use of only such cars as have drawbars of uniform height, and empowers the Association to fix and the Commission to declare, the standard.

7 204 U. S. 364; 27 Sup. Ct. Rep. 367; 51 L. ed. 523.

8 The requirement that alterations shall be made is not, the court go on to hold, a taking of private property for a public use, for which compensation must be made, but is a proper measure incidental to the regulation of commerce among the States.

9 210 U. S. 281; 28 Sup. Ct. Rep. 616; 52 L. ed. 1061.