accordance with regulations or orders and subject to such limitations and exceptions as have heretofore been, or shall hereafter be prescribed in pursuance of the powers conferred by said act of June 15, 1917. The said proclamations of July 9, 1917, August 27, 1917, September 7, and November 28, 1917, and paragraph 11 of the Executive Order of October 12, 1917, are hereby confirmed and continued and made applicable to this proclamation. . . .

A proclamation in almost the same terms was on the same date issued with respect to imports.85 It may be noted in passing that the section of the act of June 15, 1917, which is quoted in the proclamation resembles a check signed by Congress which leaves it to the President, to whose order it is written, to fill out the amount.

Other examples of emergency proclamations of 1917-1918 issued in meeting the problems of the war might easily be cited the proclamation of alien enemy regulations in pursuance of Section 4067 of the Revised Statutes; 86 the promulgation of Rules and Regulations for the management and protection of the Panama Canal and the maintenance of its neutrality; 87 the proclamations under the Food and Fuel Control Act of August 10, 1917, concerning the licensing of the importation, manufacture, storage and distribution of necessaries; 88 the proclamation taking over the railroad lines, December 26, 1917; 89 etc. It may be added that the last named proclamation was issued in pursuance of a provision of law enacted in 1916 as part of the army appropriations act for the next year; 90 and that, while the terms of the act were broad enough to include the action of the Chief Executive in the ordinance referred to, in the opinion of Mr. W. F. Willoughby it is doubtful whether in enacting the provision Congress actually had in mind the entire control and operation by the government of all railroad lines. The clause under which President Wilson acted was as follows:

85 Ibid., 1747-1749.

8. Ibid., 1650-1652.

87 Ibid., 1667-1669.

88 Ibid., 1700-1702.

80 Ibid., 1733-1735.

90 39 Stat. L., part 1, 645.

1 Government Organization in War Time and After, p. 173.

The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same to the exclusion, as far as may be necessary, of all other traffic thereon for the transfer or transportation of troops, war material, and equipment, or for such other purposes connected with the emergency as may be needful or desirable.

Here is a case where Congress, spurred on by the Preparedness Movement that reached its climax in 1916, enacted a permanent emergency delegation which proved extremely serviceable when a crisis arose.

94

Finally, it is proper to mention that these examples of emergency ordinances might be supplemented by others from the War with Germany and other crises, and especially by several from the War of Secession,92 where, in cases like the call for volunteers in May of 1861,93 the suspension of the writ of habeas corpus in 1862, and the like, the element of a very critical crisis was more acute and more apparent than at any other times of our constitutional history. In the critical stages of American neutrality during the Napoleonic Wars, we have examples of what amounted to emergency ordinances in a time when technically the nation was at peace.95

By way of contrast we may take note of one or two ordinances of the Chief Magistrate which were issued in time of peace and in connection with the ordinary course of governmental regulation of official conduct or social or industrial relations. Thus in Richardson's Messages and Papers of the Presidents 96 we find an executive order of February 2, 1888, which President Cleveland entitled "Revised Civil-Service Rules." The order set forth that these rules were issued

** See Dunning, Essays on the Civil War and Reconstruction, chap. i; McPherson, History of the Rebellion, passim.

* 12 Stat. L. 1260. This is to be distinguished from a proclamation of the month before calling for 75,000 of the state militia (12 Stat. L. 1258), which gave as its statutory authority an act of 1795 (1 Stat. L. 424). The May proclamation was under assumed authority, and it promised its measures would be "submitted to Congress as soon as assembled."

12 Stat. L. 1261; 13 Stat. L. 720; 13 Stat. L. 734-735 (the latter under authority of 12 Stat. L., 755).

"See 1 and 2 Stat. L., passim, and examples cited in a later chapter.

Richardson, vol. xii, pp. 5329-5347.

under the President's power under the Constitution and by authority of Rev. Stat. 1753 and an act of January 16, 1883, which was the original civil service reform act. Of the same character were the "Railroad Mail Rules" contained in the same volume; as also an executive order of President Arthur from which we quote: 98

97

Rule I

No person in said service shall use his official authority or influence either to coerce the political action of any person or body or to interfere with any election.

Rule XXI

The Civil Service Commission will make appropriate regulations for carrying these rules into effect.

Rule XXII

Every violation by any officer in the executive civil service of these rules or of the eleventh, twelfth, thirteenth, or fourteenth sections of the civil service act, relating to political assessments, shall be good cause for removal.

CHESTER A. ARTHUR.

To take a quite different example, we may cite the proclamation of President Taft fixing Panama tolls. It is true that Congress had confirmed the action of President Roosevelt in governing the Panama Zone and had authorized its continuance in a very liberal delegation; " but while Congress thus recognized its inability to cope with the problem as efficiently as the President could, it can hardly be said that Presidential proclamations relative to ordinary tolls are emergency ordinances. The proclamation of President Taft may be cited in full: 100

By the President of the United States of America

A PROCLAMATION

To the People of the United States:

I, William Howard Taft, President of the United States of America, by virtue of the power and authority vested in me by the Act of Congress, approved August twenty-fourth, nineteen hundred

and twelve, to provide for the opening, maintenance, protection, and operation of the Panama Canal and the sanitation and government of the Canal Zone, do hereby prescribe and proclaim the following rates of toll to be paid by vessels using the Panama Canal:

1. On merchant vessels carrying passengers or cargo one dollar and twenty cents ($1.20) per net vessel ton-each one hundred (100) cubic feet-of actual earning capacity.

2. On vessels in ballast without passengers or cargo forty (40) per cent less than the rate of tolls for vessels with passengers or cargo.

3. Upon naval vessels, other than transports, colliers, hospital ships and supply ships, fifty (50) cents per displacement ton.

4. Upon army and navy transports, colliers, hospital ships and supply ships one dollar and twenty cents ($1.20) per net ton, the vessels to be measured by the same rules as are employed in determining the net tonnage of merchant vessels.

The Secretary of War will prepare and prescribe such rules for the measurement of vessels and such regulations as may be necessary and proper to carry this proclamation into full force and effect.

In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington this thirteenth day of November, in the year of our Lord one thousand nine hundred and twelve and of the independence of the United States the one hundred and thirty-seventh.

By the President:

P. C. Knox,

Secretary of State.

WILLIAM H. TAFT.

We have now set forth four basic points of view for the classification of ordinances. Each point of view covers the whole range of the ordinance making powers of the President; and with reference to each all such powers may be grouped into one of two categories. If we combine the four methods we arrive at sixteen combinations for the cataloguing of executive ordinances. Thus, for example, one combination in the series comprises ordinances which are (1) constitutional with reference to the source of the President's authority to issue them; (2) self-contained and independent of statutes in respect to scope; (3) creative of material law with reference to subject matter; and (4) emergency in regard to purpose.101 Another combination includes all ordi

101 An example is the Emancipation Proclamation (12 Stat. L., 1267-1268).

nances which at one and the same time are (1) based upon statutory authority; (2) issued to supplement or complete the terms of a statute; (3) creative of material co-laws; and (4) aimed to meet a normal rather than an emergency situation.102 And so on through the sixteen possibilities. It may be added that rarely if ever will examples of some theoretical combinations be found, while examples of others lie upon the surface of things. It is not necessary at this point to cite illustrations; it is enough to furnish a method by the employment of which one can subject ordinances to classification in accordance with the scheme which the exact definitions of analytical jurisprudence have enabled us to work out.

103 An example is involved in Buttfield v. Stranahan, 192 U. S. 470.