that the contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction of the statute by the courts, is so firmly imbedded in our jurisprudence that no authorities need be cited to support it. On the faith of a construction thus adopted, rights of property grow up which ought not to be ruthlessly swept aside, unless some great public measure, benefit or right is involved, or unless the construction itself is manifestly incorrect."1

1Pennoyer v. McConaughy, 140 U. S. 1.

CHAPTER II.

OF THE SECRETARY OF THE INTERIOR AND HIS SUPERVISORY CONTROL OF THE DEPARTMENT.

§ 604. Secretary represents the president-General supervision of department.

605. Full authority in all matters pertaining to public lands and mines. 606. Acts of assistants lawful, but bound by rules. 607. Vested with reasonable discretion.

§ 604. Secretary represents the president- General supervision of department.-The very nature of our government in its constitutional elements implies that the various departmental secretaries are the advisors and coadjutors of the president. This principle has been recognized and followed both by the actions of the different executive departments and by the various courts of the land in many decisions from the beginning of the government to the present time. It therefore follows that the acts of the heads of the departments within the scope of authority given by law are regarded as the acts of the president.

The supreme court of the United States say: "The pres ident speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties." And he is presumed to assent to the acts of the secretary of the interior.2

By law of congress, the secretary of the interior is charged with the supervision of many subjects of public interest, including the public lands and mines. His official duty, therefore, in this regard may be said to be not merely ministerial

1 Wilcox v. Jackson, 13 Pet. 498; Instructions Land Department, 5 L. D. 520, 524. See also Wolsey v. Chapman, 101 U. S. 755; Williams v. United States, 1 How. 290.

2 Sec'y Muldrow to Commissioner, March 29, 1887, 5 L. D. 520, 523, 524. 3 R. S. U. S. 441; Johnston v. Morris, 72 Fed. Fep. 890, 897; Johnson v. Towsley, 18 Wall. 72; Circular of

in character, but it is to a large extent judicial in its nature.1 Whence follows the rule, long recognized, that in respect to those matters committed to the charge of the department, being called upon as he is to exercise judgment and discretion, his decisions are not only exempt from collateral attack, but, if made within the scope of his authority, are absolutely final, conclusive and binding.2

§ 605. Full authority in all matters pertaining to publie lands and mines.-It thus appears that congress has confided plenary authority under the law to the secretary of the interior with reference to public lands and mines.3 Naturally and necessarily, as we have intimated, this involves the right of reviewing by appeal, or otherwise, all actions of subordinate officials coming to the secretary in a lawful way. While he may correct errors of the subordinate officers in the proper case," he may not review nor set aside the actions of his predecessors in office except for cogent reasons, such as would induce a court to overrule its own decisions. In other words, he is bound by the general doctrine stare decisis, and may not authorize an unlawful act.?

§ 606. Acts of assistants lawful, but bound by rules.— Since the secretary is authorized to employ certain assistants, and congress has by law created others for him, and

Instructions Sec'y Noble, 1891, 13 L. D. 9, 13; William E. Dargie, 13 L. D. 277, 279; Baca Float No. 3, 13 L. D. 624; Cosmos Exp. Co. v. Gray Eagle Oil Co., 104 Fed. Rep. 20-43. 1 James Brittin, 4 L. D. 441, 443. 2 St. Louis S. & R. Co. v. Kemp, 104 U. S. 636; Johnson v. Towsley, 13 Wall. 72; Quimby v. Conlan, 104 U. S. 420; Steel v. St. Louis S. & R. Co., 106 U. S. 447; Vance v. Burbank, 101 U. S. 514; French v. Fyan, 93 U. S. 172.

3 See authorities in last preceding section; Stephen Sweayze, 5 L. D. 570; Knight v. United Land Ass'n, 142 U. S. 161.

4 Chas. W. Filkins, 5 L. D. 49; Pueblo of San Francisco, id. 483; Knight v. United Land Ass'n, supra. 5 F. W. Hawes et al. (on review), 5 L D. 438, 439.

6 Pueblo of San Francisco, supra; United States v. Stone, 2 Wall. 535. 7 Id. See also Montana Improvement Co., 4 L. D. 65, 67.

1

they are vested by law and by rule with certain fixed authority, it necessarily follows that the decisions of the acting secretary and the decisions of an assistant' have the same force and effect as if made by the secretary himself, in proper cases. Ours is a government of laws, and the heads of the departments are bound by the laws the same as the humblest citizen; and even though the execution of a law be confided to the president, or through him to the heads of departments, they are none the less bound to execute the laws. And while a reasonable discretion is sometimes vested, he cannot evade its ultimate execution; and since, as we have seen, the rules of the department have, for the time being, the force and effect of law, it follows that he has not the right to suspend the rules of procedure, so provided for the ultimate decision of matters before the department. His supervisory powers can in general only be invoked in one way, and that is by regular appeal.*

607. Vested with reasonable discretion. It seems quite apparent from what we have said that the secretary of the interior, within the general scope of the duties of his office, likewise within the limits prescribed in special matters committed to his care, is vested with a reasonable discretion, not a mere whim or caprice, however, but a sound legal discretion. As was said by the supreme court of the United States: "A practical knowledge of the action of any one of the great departments of the government must convince every person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to exercise his discretion. He is limited in the exercise of his powers by the law; but it does not follow that he must show a statutory provision for everything he

1 Rees v. Central Pac. R. Co., 5 L 279; Rees v. Central Pacific R. R. D. 277.

2 Frost v. Wenie, 9 L. D. 588.

3 William E. Dargie, 13 L. D. 277,

Co., 5 L. D. 277.

Henry C. Putnam, 5 L. D. 22. Compare Knight v. United Land Ass'n, 142 U. S. 161.

does. No government could be administered on such principles. To attempt to regulate by law the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out and limitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined, and which are essential to the proper action of the government. Hence, of necessity, usages have been established in every department of the government which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits. And no change of such usages can have a retrospective effect, but must be limited to the future." 1

1 United States v. Macdaniel, 7 Pet. 1-14; Circular of Instructions v. Hoe, 112 U. S. 50. by Sec'y Noble, July 3, 1891, 18

L. D. 9, 17. See also Butterworth