Nullifying the Law by Judicial Interpretation

I

ONE of the most familiar facts concerning our political system is the division of powers between the legislative, executive, and judicial branches of the government. Hardly less familiar is the conventional method of describing the respective spheres of these three branches, — that it is the function of the legislative department to make law; of the executive, to enforce law; and of the judicial, to apply law in the settlement of controversies or ‘cases.’ Yet it is obvious to all who have given the matter any thought that none of the departments keeps strictly within its own proper sphere, but that, on the contrary, whatever the theory may be, in practice each performs to a limited extent functions which belong to the others. Thus it is evident that when the Senate is engaged in the conduct of impeachment proceedings it is performing a judicial function, and that when the President vetoes a bill, or a department chief issues a ruling or order, the executive is concerned with lawmaking, and hence is discharging a legislative function.

But of the three, the judicial department is the one which is permitted by our system to encroach most deeply upon the others. Instead of being confined to the truly judicial function of applying law to cases, our courts exercise several great classes of powers, none of which is judicial in character. One of these it is the purpose of this article to discuss.

The courts are constantly engaged in interpreting statutes which have been enacted by legislative authority. In a sense it is quite natural that they should do this; indeed, it is so natural that the propriety of the proceeding has remained practically unquestioned. A statute is enacted; a case arises under it; in connection with the case a difference of opinion appears as to the meaning or application of some word, or phrase, or clause. What is the court to do? Conceivably it might submit the controverted question to the legislature and ask that body to interpret its own act; but this the court would not be likely to do. The legislature might not be in session at the time; and moreover there is no precedent for so referring a question of statutory construction. But if the question is not to be submitted to the legislature, the court must itself shoulder the responsibility of furnishing the answer. Hence this is a sort of responsibility which it is the established practice of our courts to accept.

But however natural it may be that our courts should assume this duty, in the absence from our political system of any other convenient method of interpretation of statutes, it is nevertheless a fact that the function itself is legislative rather than judicial in character. Such a statement runs counter to the idea commonly held, that statutory construction is a prerogative of the courts; but it must be remembered that this idea is derived wholly from the fact that the judiciary has for a long period exercised this type of authority, and does not inquire into the reasons which explain that fact. The truth is that in so far as they have exercised this function the courts have exercised it, not as a matter of right, but because they have been suffered to do so by the legislative branch of government. And the legislature has allowed them the privilege solely as a matter of convenience, in order to expedite the application of laws in the settlement of controversies. But the function is nevertheless purely legislative. This seems so obvious as hardly to need argument. To interpret law is to assist in making it. To expound the meaning of a statutory provision is virtually to amend and amplify the provision in question, and hence is legislative activity.

If a legislature, having enacted a law, should become convinced that its meaning was not sufficiently clear or precise, and should therefore proceed to revise or expand certain of its provisions, would not such supplementary action be strictly legislative? Yet that is in substance exactly what the judiciary does when it construes a statute. Interpretation subsequent to the passage of an act is essentially amendment of it.

That the interpretative function is legislative in its nature, is often implicitly recognized even by our courts. Frequently a legislature gives its own interpretation of a statutory provision. It embodies in the law a declaration that ‘wherever the word —— is used in this act it shall be taken to mean . . . .’ Or else a clause is inserted providing that ‘nothing in this act contained shall be construed to forbid . . . ,’ or, ‘this section shall not be construed to allow . . .’ And in various other ways the meaning and application of phrases and sections are specified. Now, when the legislature includes in a statute such an interpreting clause, the courts never fail to adopt the interpretation there given. And in so doing they recognize the superiority of the legislative voice in the matter; they admit that legislative construction controls; they concede, therefore, the fundamentally legislative character of the function.

But while the interpretation of statutes is thus a legislative matter, the courts are in the habit of attending to it, and all must admit that in some ways it is convenient that they should do so. Hence they will doubtless continue the practice unless weighty reasons are found why some other arrangement should be made. Do such reasons exist?

In a recent article Justice Lurton, of the Supreme Court, touched upon this subject, and although he upholds the judicial power to construe statutes, he nevertheless concedes that in the interpretative function there lurks an immeasurable power, which is all the more dangerous to the public welfare because under its cover it is possible for a bad or ignorant judge to defeat the legislative purpose. But this is not the only danger. Aside from the conduct of bad or ignorant judges, the practice of judicial interpretation has developed very serious evils, which are now beginning to make themselves felt. Four of these evils I wish to discuss at some length.

First. A fairly complete interpretation of an important statute can be obtained only after prolonged delay, and by the incurring of large expense.

Under our present system statutory construction is an incident of litigation. A question of interpretation can receive no official consideration until it arises in connection with a lawsuit, and no answer can be regarded as authoritative until the case is settled, not by the trial court, but by the highest court which is competent to pass upon it. Thus the slow-moving ‘wheels of justice’ delay the answer for a year or more, — usually more, — and re-trials, appeals, and other supplementary proceedings are likely to postpone it for at least another year. And as in each case only the particular questions of construction necessarily involved in the controversy can properly be settled by the court, it frequently happens that a series of cases must be carried to final judgment, before all the dubious points in an act, or even in one section of an act, can be fully cleared up. The expense of this litigation must be borne by some one, and is not an item to be ignored; but the more important phase of the matter is the delay. Many years must, pass in which the people are in doubt as to the meaning of the statute; and if, as is often the case, it is an act which affects industrial interests, the prolonged uncertainty is a depressing factor in the business situation.

A capital illustration may be found in the Sherman Anti-Trust law. Passed by Congress in 1890, its meaning has not yet, after twenty years, been fully elucidated by the Supreme Court, although many cases have been tried under it. Some people are so discouraged by the failure of protracted litigation adequately to illuminate the act, that they are inclined to regard it as hopelessly obscure. President Taft, on the other hand, seems confident that the significance of the law has in the main been explained by judicial decisions. But, after all is said, the fact remains that under our present system twenty years have not sufficed for a full interpretation of a statute which was so important that a complete understanding of it should have been gained by the people of the country with the least possible delay. Any number of other illustrations may be given, and some will be found in cases mentioned later in other connections.

Second. The existing practice compels our judges to assume an attitude on current economic and political questions.

As has been said, law-interpretation is law-making, and to the extent that judges are engaged in the exposition of statutes they are making laws for the people. They can no longer, therefore, maintain the position of arbiters, impartially applying rules of law to the controversies of litigants. They have become legislators, engaged in the determination of governmental policy in matters of a political and economic character.

A law is passed by the legislature for the regulation of corporations; but whether the regulation shall be mild or severe rests, within wide limits, with the judges who interpret it. By one construction they can nullify the law; by another, they can hold the corporations to a very strict account. And so it is necessary for judges to take an attitude, to reveal their personal convictions with reference to those ‘ problems of the day ’ which are the subject of so much important legislation. Almost inevitably their decisions disclose whether they are more in sympathy with the trusts, the financial ‘interests’ and those magnates popularly known as ‘ malefactors of great wealth,’ who so loudly proclaim their ‘ vested interests’ and ‘property rights,’ or with the great body of the people who urge in reply their claims of ‘ popular rights’ and the ‘ public welfare.’

Similarly, judicial interpretation may well serve to indicate whether the judges sympathize with labor or with capital; whether they are in accord with movements for the alleviation of the working conditions of labor; and, in general, whether they favor those modern measures which aim at the elevation of the moral plane of competition and of business, and which do not refuse to make some sacrifice of the traditional rights of liberty, contract, and property, when that is necessary in order to attain the end desired. Their decisions disclose these things because it is practically impossible for them to conceal their point of view in construing statutes dealing with such subjects.

But this necessity of descending from their judicial aloofness into the turmoil of present-day industrial and political struggles, is not a good thing from any point of view. It detracts from the dignity of the judges, and diminishes the respect which has so long been felt for our courts. Worst of all from their point of view, it exposes the judges to a new species of criticism, — a criticism not of their learning, nor of their judicial fairness, nor of their legal acumen, but of their economic policy. The wisdom and righteousness of their ideas in regard to great matters of public policy are being called in question, and from the effects of such criticism they should surely be protected, if any means of protection can be found. Moreover, as will presently appear, the entrance of the judges into the arena of industrial conflict is not helpful to the people in their efforts to solve the problems which perplex them.

Third. The existing practice promotes carelessness in legislation.

It is the duty of a legislative body to give to the people laws which are as precise and clear as possible; but this is a duty which is often neglected, for legislators know that any confusion, ambiguity, or uncertainty in a statute will in the long run be cleared up by the courts, and this knowledge is one of the causes which are producing careless drafting of bills. Indeed it sometimes happens that legislators deliberately frame an act so that its meaning will not be clear, in order to throw on the courts the task of determining the question of policy involved, thereby avoiding the necessity of deciding it themselves.

An excellent illustration of this line of conduct was furnished by Congress in the passage of the Hepburn bill in 1906. Since that measure conferred on the Interstate Commerce Commission power to fix railroad rates on complaint, it was of the utmost importance to define precisely the limits of that power. Should the Commission be allowed to regulate rates freely except as limited by constitutional restraints, or should more narrow restrictions be placed upon it? Unable to agree on this question, the differing factions in Congress at last concurred in a phrasing of the law which left the matter unsettled. They adopted provisions which were capable of different interpretations, thereby compelling the courts to solve a legislative problem, to determine the nation’s policy as to this important phase of the regulation of railway corporations. After what has been said as to the stately progress of judicial construction, need it be added that the problem is still unsolved?

Fourth. Frequently the legislative intent fails of recognition, and a statute is made to accomplish more or less than its authors purposed.

This is by all means the most serious result of the existing system of judicial interpretation. An act of legislation, however much demanded and needed by the public, may totally fail to accomplish its end, or at least may become such a feeble instrument as to be altogether disappointing, while on the other hand it may be applied to situations not contemplated at the time of its enactment. Such broadening of the scope of a statute is not common, but examples may be found, one of which is furnished by the Sherman Anti-Trust law. That statute was designed to meet the evils of the industrial trusts, but seven years after its passage the Supreme Court ruled that it should also be applied to railway agreements and combinations.

In a large majority of cases, however, judicial construction produces an opposite result, and operates to restrict the application of statutes. In fact, the tendency in this direction is so strong that in many cases provisions of law are actually nullified by judicial interpretation, — provisions, that is, which the courts uphold as perfectly valid and constitutional, but upon which they place so peculiar a construction as to deprive them of all their vitality. Thus many a law admirably designed for the alleviation of some distressing social or economic ill gives little, if any, of the relief desired.

Before proceeding to enforce the seriousness of this evil by reference to important laws which have been weakened or nullified by the courts, we shall do well to pause and ask why our judges exhibit so marked a tendency to interpret statutes in this manner. Two potent reasons may be suggested.

While contemplating a statute, judges are thinking of legal technicalities, and not of the social conditions which called forth the law and which it was intended to ameliorate. Often judges have but an imperfect understanding of such conditions; but however complete or limited their knowledge may be, when called upon to give a judicial ruling on the statute, the technicalities of the law control their thoughts. This is a most natural result of the character of the law in which they have been trained. When James I tried to convince Lord Coke that the king was competent to dispense justice, because the law was supposed to settle cases through reason, and the king had reason as well as the judges, Lord Coke replied, —

‘True it is that God has endowed your Majesty with excellent science as well as great gifts of nature, but your Majesty will allow me to say, with all reverence, that you are not learned in the laws of this your realm of England, and I crave to remind your Majesty that causes which concern life, or inheritance, or goods, or fortunes of your subjects are not decided by natural reason, but by the artificial reason and judgment of the law.'

In this statement Lord Coke expressed an important truth. The reasoning of the law, and hence the thinking of judges, is in a high degree artificial. Its course is determined by fictions, presumptions, precedents, technical definitions; and hence the interpretation of a statute by a judge may be far from that which one would give to it who endeavored, in a plain, common-sense way, to effectuate the purpose of the statute. Judges are more intent on upholding the technicalities of the law, and on preserving the harmony of judicial definitions and dicta, than they are on accomplishing the social object contemplated by the legislative mind.

A second reason why judicial interpretation so often proves fatal to the effectiveness of an act is to be found in the fact that much modem legislation is designed for the regulation of industry; and in the further fact that, in principle and spirit, the system of law which prevails in this country, and which we inherited from England, is hostile to such legislation. For the regulation of industry invariably means the limitation of personal and property rights in commercial enterprise; while it is the traditional policy of the law to preserve such rights inviolate. The great body of the people clearly recognize that during the last century, and especially during the last generation, serious social and industrial evils have come into existence, to the injury of the general public; and they also plainly see that, to mitigate or destroy these evils, some distinct limitations must be placed on private rights of contract and property. But our system of law has not followed the course of industrial evolution, or at best has followed it with slow and reluctant step. In the main our system of law is still lingering in the eighteenth century. Indeed, it has been so little impressed by the evils with which the public are struggling that it has modified little, if at all, its ancient declaration in favor of the protection of private rights against interference. And hence judges still proclaim, as in the language of the late Justice Brewer, that ‘ the protection of vested rights of property is a supreme duty of the courts,’ that, indeed, ‘the primary duty of the courts is the protection of the rights of persons and property,’ — having in mind, not the social or popular rights which are today struggling for recognition through government regulation of industry, but rather those strictly private, selfish rights which it is the object of public control to limit in the interest of the general welfare.

If such is still the avowed purpose of the law, and the declared duty of the courts, it is but natural that judges who are trained in the law, and filled with its spirit, should look askance at modern industrial legislation, and should think of it, not as a body of rules which should be applied with a firm hand, but as a body of rules all out of harmony with the traditions and ideals of the law, — designed, in fact, to invade those ‘sacred rights’ which, in the eyes of the law, it is the very purpose of government to preserve. Looking at industrial legislation in this way, it is only natural that judges in their interpretations should tend both consciously and unconsciously to moderate the rigor of the statutes. It would hardly be humanly possible for them to give any more force than they felt absolutely obliged to give to statutes which, from their eighteenth-century point of view, are fundamentally wrong. In brief, the legal and judicial bias against legislation of this type must be and is manifested in statutory interpretation.

To show that this is practically as well as theoretically true, several instances will now be cited in which judicial construction has destroyed, or at least emasculated, provisions of important statutes.

The Interstate Commerce Act, as passed in 1887, contained no provision which declared in precise terms that the Commission should have power to regulate railway rates. But the act did declare that all rates must be reasonable and not unjustly discriminatory, and did authorize the Commission to investigate rate-conditions, and to issue orders requiring railways to desist from violations of the act. These provisions clearly admitted of the interpretation that the Commission could regulate rates. Such was the understanding at the time, and the Commission assumed it to be true. But in the decisions rendered in 1896 and 1897, the Supreme Court placed an opposite construction on the act and refused to permit the Commission longer to regulate rates. Thus the Commission was bereft of its authority until Congress restored it in 1906.

Among the evils which the Interstate Commerce Act aimed to prevent was that form of discrimination which consists in charging more for a short than for a long haul. Railways had been in the habit of reducing rates at competitive points without making corresponding reductions at intermediate points, thus placing the latter towns at a serious disadvantage in comparison with the former. To prevent such practices, the act provided that it should be unlawful ‘to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance.’ But to obviate the danger that rates might become too rigid, or that other injury might result from the too strict application of this clause, Congress gave the Commission power to relieve railways from the application of the clause in specific cases in which good cause could be shown.

The intent of this ‘ Long and Short Haul Clause ’ was obvious, but unfortunately at least two phrases admitted of differing constructions. Certain lower federal courts began to construe ‘over the same line’ in such a way as to destroy much of the effectiveness of the clause. They held that when a shipment passed over tracks of two or more railway companies, it was not carried ‘over the same line’ as a shipment not passing over the same combination of tracks. Thus if A and B were two connecting railways, a long haul over A and B and a short haul over A alone were said not to be over the same line, although they passed over the same rails, perhaps in the same car. It seems incredible that so strained and artificial an interpretation should have gained even momentary acceptance, yet it was adopted by the lower courts until the Supreme Court finally held to the contrary, in 1896 — nine years after the act was passed.

But while the Supreme Court thus renounced an interpretation which was limiting the usefulness of the clause, one year later the same tribunal construed another phrase in such a manner as to annul the clause entirely, for all practical purposes. It held, in 1897, that two hauls do not take place‘under substantially similar circumstances and conditions,’ when the longer is between two towns at which the railway company is subject to competition, while the shorter is between two towns at which there is no such competition. As these were the very circumstances under which the discriminations aimed at by the clause were taking place, as the lower charges for longer hauls were being made almost exclusively at competitive points, this construction meant that there were practically no cases to which the clause could apply. In other words, the Supreme Court interpreted the clause as allowing the very abuses which it was intended to prohibit! As a result the famous ‘Long and Short Haul Clause’ became a dead letter and remained such until 1910, when Congress made an effort to revitalize it by eliminating the phrase, ‘under substantially similar circumstances and conditions.’

In 1903, Congress passed the Elkins law, which, though it dealt with railway rates, was really designed as an anti-trust measure. On the theory that one of the strong props supporting the trusts is the use of railway discriminations, the act endeavored to prevent such practices, especially those personal preferences which are awarded in the shape of rebates. In the famous ‘twenty-nine million dollar’ Standard Oil case, the Circuit Court of Appeals gave to the act two disastrous constructions. Under the rules of federal procedure, the case could not be appealed to the Supreme Court, so a final judgment was not rendered; but if the rulings of the Court of Appeals are finally sustained, the Elkins law will be enormously weakened, notwithstanding the fact that an amendment passed by Congress has dulled the edge of one of the rulings.

The act was construed by the Court of Appeals as requiring the government to prove, not only that the shipper received a concession, but also that he knew at the time that he was receiving a concession. To secure legal proof of such knowledge is an extremely difficult task, and to throw the burden of proof on the government would mean that it would fail in a great many cases in which it ought to succeed. This interpretation therefore was calculated to impair very seriously the efficiency of the act.

The other construction related to the ‘ unit of offense.’ The act imposed as a penalty a fine of not less than one thousand nor more than twenty thousand dollars for each offense, but unfortunately did not indicate precisely what should constitute an offense. Now, in connection with discriminations any one of the following acts may be thought of as the misdeed: —

The formation of an agreement to give and receive a concession.

The making of a settlement under such an agreement; that is, the payment by the favored shipper of a sum less than would be due under the established rates; or the payment by the railway of an amount of money constituting a rebate.

The making of a consignment of goods under such an agreement.

The shipment of a hundredweight, or of a ton, or of a carload, or of a train-load of goods under such an agreement.

In the trial court Judge Landis interpreted the act to mean that the shipment of each carload constitutes a separate offense, and he accordingly endeavored to inflict on the Standard Oil Company of Indiana the ‘twentynine-million-dollar fine.’ But the Circuit Court of Appeals rejected his construction and held that an actual settlement is to be regarded as the unit of offense. Whether shipments are large or small, whether violations of the act are serious or slight, were held to be matters of no consequence. The number of payments determines the guilt of the parties. If the rebate is paid in small sums each week, there will be fifty-two offenses in the year; but if it is paid in one lump sum, there will be but one offense.¹

Now it is easy to see what the effect of the decision would have been, if finally sustained, had not Congress passed an amendment which meets the situation. Its effect would have been to encourage the very thing which the act was designed to prevent. Under the interpretation given by the Court of Appeals large shippers would have found it possible to violate the law, but small shippers, not so. For a shipper, by receiving his rebates only once or twice annually, would be guilty of only one or two offenses a year; and even if he were apprehended, indicted, tried, and convicted for every offense, — which, of course would never happen, — the advantages derived from the rebates by a large shipper would more than offset the fines which could be imposed upon him. This, however, would not be the case with a small shipper, to whom the concession would not be of such great importance.

This construction of the Elkins act, therefore, was one under which large shippers would be permitted to enjoy preferential advantages as against small shippers, thereby accelerating the very tendency which it was the purpose of the act to retard — the tendency toward monopoly. In his opinion Judge Baker pronounced the supposedly established doctrine that ‘ the purpose of all canons of interpretation is to discover and effectuate the will of the lawmakers ’; yet he concurred in a construction the inevitable tendency of which would have been to cause the act to accomplish the very opposite of what was intended by the lawmakers. This case admirably illustrates the point that sometimes a court utterly ignores the social or industrial conditions which prompted the passage of a law.²

The ‘commodities clause’ of the Hepburn act furnishes another illustration. For many years the railroads which serve the eastern coal-fields have themselves been engaging in the coal business either directly or through the agency of subsidiary coal corporations owned and controlled by themselves. The independent coal producers have complained bitterly of this expansion of the railways’ activities, for, of course, a railway company can carry its own coal to market at the bare cost of transportation, but will naturally see to it that the independents pay a rate which puts them at a disadvantage in the market, as compared with the railway. To relieve this situation the Hepburn act sought to divorce the railways from their coal properties, and to compel them to confine themselves to their proper functions as public-service corporations. To that end the following‘commodities clause’ was enacted: —

‘ It shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier.’

The railways made it manifest that they would not willingly obey this law, whereupon test cases were started and carried to the Supreme Court. In settling these cases that tribunal practically annihilated the clause by its interpretation of the words ‘any interest, direct or indirect.’ It held that a railway which owns the stock of a coal company has no interest, direct or indirect, in the coal! This amazing construction was received with great satisfaction by the railways, for most of them had already formed subsidiary coal companies, and the rest hastened to do so at once. Thus the clause is utterly impotent, and cannot affect the evils it was designed to correct.

It is true that Congress might have included in the clause a specific reference to property owned by subsidiary companies,—as was, indeed, proposed while the bill was under discussion. But Congress felt that it had covered the ground completely when it not only mentioned commodities ‘manufactured, mined, or produced by it [the railroad], or under its authority, or which it may own in whole or in part,’ but even included articles in which the railway ‘ may have any interest, direct or indirect.’ Surely such a provision would seem to be thoroughly inclusive, and the failure of Congress to go further into detail can hardly justify the judiciary in adopting a construction which is not only extraordinary in itself, but which prevents the clause from accomplishing its avowed object — even from accomplishing anything at all.

Many other illustrations could be given, but perhaps those which have been presented sufficiently enforce the truth of the proposition that judicial interpretation often weakens and sometimes nullifies acts of legislation.

II

If there is even moderate force in the points which have thus far been made, two things seem evident.

First, that greater care should be taken by our legislative bodies in drafting statutes. Each law should be made as clear and precise as possible, so that the number of questions of construction to be afterwards passed upon will be reduced to a minimum. To this end it would be advisable for each lawmaking body to maintain a standing committee on phraseology, charged with the duty of revising and perfecting the language of all bills before their final passage. But even under the most favorable circumstances our legislators cannot be expected to do their work so perfectly as to avoid entirely the necessity of later interpretation. However careful they may be, they cannot possibly foresee every question which may arise. And hence it is certain that, however excellent the legislative work may be, statutes will usually require more or less interpretation. Therefore,—

Secondly, in view of the manifest evils connected with judicial interpretation, the suggestion is at least deserving of consideration, that the system might advantageously be replaced by some other not so open to objection. In the light of the preceding discussion, it is easy to see what the essential features of a more satisfactory system would be. Such a system would be one in which statutes could be interpreted promptly and without unnecessary expense to the people, and in which interpretations would be rendered by a non-judicial authority, — a body, in fact, composed of persons outside of the legal profession.

If the delay and expense of the present system were its only defects, they could be removed without a fundamental change. Nothing would be required beyond a modification of judicial practice in the direction of a more businesslike procedure. If, without resorting to litigation, people were privileged to raise questions of construction before the highest court competent to pass upon a statute, and the court were authorized to answer such questions, prompt and inexpensive interpretations could be secured. But while such a reform would be highly useful, it would not meet all the requirements of the situation. It would not relieve our judges of the necessity of assuming an attitude on public problems, nor would it relieve the people of the evils resulting from the legalistic bias against industrial regulation and from the judicial penchant for technicalities. If these difficulties are to be met, a radical change is necessary. Judicial interpretation must be abandoned, and the function must be assumed either by the legislative or by the executive branch of the government.

Now, since the function is essentially legislative in character, it would seem quite natural and proper to transfer it to the lawmaking authority; but inasmuch as legislative assemblies are not in session the greater part of the time, such a proceeding would obviously be out of the question. On the other hand it is conceivable that the interpretative function might advantageously pass to the executive department of the government. Indeed, an administrative body would seem to be a most desirable agency for the discharge of this important class of duties. Such an authority could proceed as soon as possible after the enactment of a law to make it the subject of study, and to interpret any passages which were found to be obscure. All persons would be allowed to present inquiries to this authority, with reference to the meaning of any statutory provision; and in case a question of construction not already settled should arise in the course of litigation, the court would at once refer it to the same authority for decision. Of course, all rulings in the nature of interpretations would be made public, and printed copies would be sent free to all persons applying for them. Moreover all rulings would be regarded as part and parcel of the acts to which they applied, and hence would be final unless later amended by legislative action.

Under such a system it is probable that within a few weeks — at most a few months — after the passage of an act, all the more important points would have been suggested and settled. Thus would be saved the expense of litigation, and the tedious delay and uncertainty characteristic of the present system; the courts also would be saved the time which they are now compelled to give to such matters, and would be spared the necessity of disclosing their ideas on current questions; while the public at large would be secured from the serious results which flow from judicial nullification of important statutes.

An authority, then, such as has been described, is highly to be desired, but how is it to be constituted? Several suggestions might be made, but the following two seem to offer the greatest promise of success.

So far as national legislation is concerned, Congress might confer on the heads of the administrative departments the power and duty of interpreting all acts pertaining to their respective departments, with final authority vested in the President; except that interstate commerce legislation would naturally be interpreted by the Interstate Commerce Commission rather than by a member of the Cabinet. Or else Congress might provide for a permanent Commission on Statutory Construction, which would devote itself exclusively to this work.³

Of these two plans probably the latter would prove the more successful, provided that the commission was small; provided also that so far as possible it was composed of persons outside of the legal profession, who would have the attitude of the publicist rather than that of the lawyer; and provided further that the salaries were made so large, and the circumstances surrounding the commission so dignified, that men of large calibre would be attracted to it — men fully of cabinet grade.

It is essential that the commission should be composed largely, if not wholly, of laymen, for otherwise the legalistic attitude and processes of thought would continue to control the construction of statutes. But it must be noted that there would be one important limitation upon the usefulness of a body so constituted. The nature of this limitation will be perceived when it is understood that there are two kinds or classes of statutes, which, for lack of better names, may be called ‘social’ and ‘legal.’ The former class embraces all statutes pertaining to political, economic, and sociological subjects. Examples may be found in the laws relating to the tariff, the census, the regulation of railway rates, the control of trusts, the determination of labor conditions in factories, and so on. It is legislation of this important type which has been held in mind in the preceding discussion. But there are numerous other statutes which pertain merely to matters of law. Such, for example, are the acts which modify the common-law rules on real property, wills, bailments, damages, and so forth. For the intelligent interpretation of such statutes one obviously needs a broad comprehension of legal principles and a knowledge of their historical development; and hence a tribunal composed of men without training in the law could not properly deal with legislation of this class.

An administrative body, then, while exactly the sort of authority needed for the interpretation of ‘social’ measures, would not be ideal when ’legal’ statutes were to be passed upon. A difficulty thus arises, which is serious but not by any means insuperable. At least two methods of overcoming it may be suggested. On the one hand a legislative body, in enacting ‘legal’ statutes, might definitely assign them to the courts for interpretation, rather than to the commission. On the other hand the commission might be provided with competent legal advisers whose duty it would be to make clear the legalistic significance of provisions under consideration. This would prevent the commission from falling into error because of ignorance of the legal background of statutes, while at the same time it would also permit the ‘ commonsense’ rather than the purely legalistic frame of mind to control the situation. The same results could be accomplished, perhaps as well, by providing that one member of the commission should be a lawyer.

It will, of course, be objected that a law transferring the power of interpretation from the courts to an administrative body would be declared unconstitutional by the Supreme Court; but this is not by any means certain. If such a law were passed, the question which that court would have to decide would be the following: To which department of government does the power of statutory interpretation properly belong? The court might hold, on the legalistic basis of precedent, that since the courts have so long exercised the power, it is judicial in character. If such were its ruling, the law would of course be declared an unconstitutional attempt to deprive the courts of a part of the judicial authority conferred on them by our fundamental law. But if the court were to regard the power as administrative, the law would be upheld. If, however, the court were to hold the power to be legislative, a new problem would arise, involving the question as to whether the lawmaking body can delegate this phase of its authority to an administrative body. The general principle is that legislative powers cannot be delegated, but one may nevertheless hold that administrative interpretation could be established without a constitutional amendment. It would seem that if the power of interpretation is now being delegated to the courts without impropriety, it could be delegated to administrative officers without impropriety. Furthermore, a somewhat analogous case has long been familiar. Legislative bodies pass laws declaring in general terms that railway rates must be just and reasonable, but delegate to commissions the task of determining what that declaration means, specifically, in the case of the railways subject to the laws; and this delegation of power has long been upheld by the courts as valid. By analogy, therefore, it would seem proper for a legislative body to pass a law leaving to a commission the duty of rendering it precise and clear.

Of course, if such administrative interpretation is unconstitutional, it is highly improbable that it can ever be established, since constitutional amendments are so difficult to secure in this country. But there seems to be sufficient reason for believing in its validity to warrant the enactment of a law which would raise the question and secure an answer from the federal Supreme Court.

That there would be problems to solve in connection with the establishment of such a system, is of course true. That the system would meet with difficulties and, especially at first, become involved in complications, is likewise true. It would unquestionably take time to determine clearly the exact relation of the administrative authority to the legislature and the courts. But whether all of these difficulties would not be much less serious than the evil results of the present system, is a question which deserves the earnest attention of the American people.