The authority on the part of an administrative officer to issue a regulation carries with it as the court say in United States v.

18 American Administrative Law, p. 142.

19 Opinions of the Atty.-Gen., II, 8.

20 16 Pet. 291; 10 L. ed. 968.

Eliason20 "the power to modify or repeal, or to create anew." This power to amend or repeal an order already issued and in force may not, however, be so exercised as to violate a vested right of an individual;21 nor may a newly adopted administrative rule be made retroactive so as to impair private rights.22

It would appear, however, especially from the case of Dunlap v. United States23 that the right of an individual to a privilege created by law may sometimes be defeated by the failure of the proper administrative office to make regulations determining the manner in which, and circumstances under which, the right in question may be enjoyed. It is possible, however, that this is true only in those cases in which it would appear that the legislature has vested the executive with discretionary power to determine when the circumstances are appropriate for granting the right in question. In the case referred to the court held that under an act of Congress which granted a rebate or repayment of tax on alcohol used in the fine arts by a manufacturer under regulations to be prescribed by the Secretary of the Treasury, no claim for such rebate could be made because the Secretary had not made any regulations for such use. The court in its opinion say: "It seems clear that when Congress undertook to provide for refunding the tax on alcohol when used in the arts, it manifestly re-garded adequate regulations to prevent loss through fraudulent claims as an essential prerequisite, and may reasonably be held to have left it to the Secretary to determine whether or not such regulations could be framed, and, if so, whether further legislation would be required. It is true that the right to the rebate was derived from the statute, but it was the statute itself which postponed the existence of the right until the Secretary had prescribed regulations if he found it practicable to do so."

21 Campbell v. United States, 107 U. S. 407; 2 Sup. Ct. Rep. 759; 27 L. ed. 502.

22United States v. McDaniel, 7 Pet. 1; 8 L. ed. 587. Cf. Goodnow, American Administrative Law, 145.

23 173 U. S. 65; 19 Sup. Ct. Rep. 319; 43 L. ed. 616.