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PREFACE

This treatise is an expansion of a dissertation submitted in 1923 to the Johns Hopkins University in partial fulfillment of the requirements for the Ph. D. degree. It was originally undertaken at the suggestion of Professor Lindsay Rogers, now of Columbia University, and pursued first at the University of Virginia, under his guidance, and later in Baltimore under the supervision of Professor W. W. Willoughby. To them and to President Goodnow, his three teachers who have most influenced his conception of law and politics, and most contributed to his stock of knowledge, the present writer is indebted in ways that are not indicated in the footnotes. Acknowledgments are also due to Professor Frankfurter, of the Harvard Law School, some meetings of whose graduate seminar in administrative law the writer attended, in 1921-1922, with great profit. Professor Frankfurter discussed at considerable length the problem dealt with in chapter VI. The author desires to take this opportunity to thank Professor Jesse S. Reeves for several very fruitful ideas. It is only fair to state, however, that for errors of fact and of judgment entire responsibility rests with the author.

ANN ARBOR, MICHIGAN,

May 25, 1924.

J. H.

CONTENTS

Preface....

PART I. JURISTIC ANALYSIS.

Chapter I. Introduction....

Chapter II. Analysis of the Governmental

Process...

Chapter III. The Ordinance: Distinctions and
Classifications....

PART II. CONSTITUTIONAL PRACTICE.

Chapter IV. Delegated Ordinance Making in

Constitutional Practice.....

PAGE

vii

17

24

44

69

PART III. CONSTITUTIONAL CONSTRUCTION.

Chapter V. The Constitution and the Ordin-
ance Making Power: General

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Chapter VI. The Constitutional Basis and
Scope of the Delegated Ordin-

ance Making Powers of the
President...

Chapter VII. Other Constitutional Aspects of

the Delegated Ordinance Mak

ing Powers of the President...

Chapter VIII. The Relation of the President to
the Ordinance Making Powers

of Heads of Departments and
Commissions

120

160

185

Chapter IX. Constitutional Aspects of the
Constitutional Ordinance Mak-

ing Powers of the President...

PART IV. POLITICAL INTERPRETATION.

Chapter X. Political Implications and Poten-
tialities of the Ordinance Mak-

ing Powers of the President...

Chapter XI. Political Safeguards and Private

Remedies....

Appendix. Technical Analysis...

Bibliography....

201

251

292

315

325

TABLE OF CASES

(It will be noted that some of the cases in the following Table have no page references. These cases are not referred to in the text, but are included here as they bear on the subject).

Albridge vs. Williams, 3 How. 1....

Alexander vs. State, 56 Ga. 478.

Arnett vs. State, 80 N. E. 153.

Arver vs. United States, and other cases, The Selective Draft

Law Cases, 245 U. S. 366..

Barbier vs. Connolly, 113 U. S. 27.
Boske vs. Comingore, 177 U. S. 459.
Bradley vs. Fisher, 13 Wall. 335..

Brig Aurora vs. United States, 7 Cr. 382.
Brown vs. Maryland, 12 Wheat. 419..

PAGE 184

.102, 130, 145, 147, 158

259

.132, 183, 186 305

48, 139, 144

145

144

Brushaber vs. Union Pacific R. R. Co., 240 U. S. 1.
Buttfield vs. Stranahan, 192 U. S. 470..

35, 58, 68, 130, 143, 144, 150, 152, 155, 162

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St. 88.

Cincinnati, Wilmington, &c. Railroad vs. Commissioners, 1 Ohio

City of Clinton vs. Philipps, 58 Ill. 102.

City of Evansville vs. Miller, 146 Ind. 613.

182, 321

179

.47, 110, 206

121

165

154

Commonwealth vs. County of Hampden, 2 Pick. 414.
Commonwealth vs. Sisson, 189 Mass. 247.

304

174

Cross vs. Harrison, 16 How. 164...

245

Dakota Central Telephone vs. South Dakota, 250 U. S. 163..147, 162
Dartmouth College vs. Woodward, 4 Wheat. 518.
Dental Examiners vs. People, 123 Ill. 227..

155

163

Deslions vs. La Compagnie Générale Transatlantique, 210 U. S. 95, 184 Dooley vs. United States, 182 U. S. 222..

.38, 56, 57, 247

Dowling and another vs. Lancashire Ins. Co., 92 Wis. 63..

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35, 39, 45, 49, 58, 121, 129, 130, 131, 144, 147, 150, 152, 216

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