Generally speaking, it may be said that while wide discretionary power may constitutionally be granted to administrative agents, that discretion must be one which must be guided by reason, justice, and impartiality, and must be exercised in the execution of policies predetermined by legislative act, or fixed by the common law.

In Yick Wo v. Hopkins29 the court laid down the doctrine that the legislative investment of purely personal and arbitrary power in the hands of any public official is a denial of due process of law. " The very idea," say the court, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." 30 Of the ordinances in question the court say: "They seem intended to confer and actually do confer, not a discretion upon consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not as to places but as to persons. . . . The power given to them [the supervisors] is not confided to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance, nor restraint."

29 118 U. S. 35G; 6 Sup. Ct. Rep. 1004: 30 L. ed. 220.

30 Quoting and approving City of Baltimore v. Radecke, 49 Md. 217.

In fact, however, the court found in this case that the evidence showed that the ordinances in actual operation had been so exclusively directed against a particular class of persons " as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they were applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a .practical denial by the State of that equal protection of the law which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States." And the court add, " Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

The judgment of the court was that the petitioners could not be punished for a violation of the ordinances in question.

Taken by itself the language of the court, as will be seen by the quotations which have been made, indicate a view that in no case may an arbitrary discretionary power be granted to a public official which will compel any person " to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another." The force of this holding is, however, somewhat weakened by the fact that, as has been seen, the court found that, whatever the terms or intent of the ordinances in question, they had actually been administered in a grossly partial and unjust manner. And also, and more importantly, in the later case of Wilson v. Eureka City31 the court expressly upheld the constitutionality of an ordinance committing the right of the plaintiff with reference to the removal of a building owned by him, to the unrestrained discretion of a single official. The summary of cases in the State courts, given by the court in Re Flaherty,31a in which unrestrained discretion is sustained, is quoted with approval, the court declaring the discretionary power to be " based on the necessity of the regulation of rights by uniform and general laws - a necessity which is no better observed by a discretion in a board of aldermen or council of a city than in a mayor, and the cases, therefore, are authority against the contention of plaintiff in error." 32

31 173 U. S. 32; 19 Sup. Ct. Rep. 317; 43 L. ed. 603.

In this case it is certain that the Supreme Court commits itself to the doctrine that administrative officials may, in certain cases at least, be given a discretionary power to act according to their own unrestricted judgment as to what the circumstances require, and that, therefore, an ordinance or a law purporting to grant this authority is not, upon its face, void.

31a 105 Cal. 558.

32 See also Davis v. Massachusetts, 167 U. S. 43; 17 Sup. Ct. Rep. 731; 42 L. ed. 71. The summary of cases given by the court in Re Flaherty is as follows:

"Statutes and ordinances have been sustained prohibiting awnings without the consent of the mayor and aldermen (Pedrick v. Bailey, 12 Gray, 161) ; forbidding orations, harangues, etc., in a park without the prior consent of the park commissioners (Commonwealth v. Abrahams, 156 Mass. 57), or upon the common or other grounds, except by the permission of the city government and committee (Commonwealth v. Davis, 140 Mass. 485) ; 'beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written permission of the president of the village,' on any street or sidewalk (Vance v. Hadfield, 22 N. Y. 588); giving the right to manufacturers to ring bells and blow whistles in such manner and at such hours as the board of aldermen or selectmen may in writing designate (Sawyer v. Davis, 136 Mass. 239); prohibiting the erecting or repairing of a wooden building without the permission of the board of aldermen (Hum v. The City of New Haven, 40 Conn. 478); authorizing harbor masters to station vessels and to assign to each its place (Vanderbilt v. Adams, 7 Cow. 349); forbidding the occupancy of a place on the street for a stand without the permission of the clerk of Faneuil Hall Market (Nightingale, Petitioner, 11 Pick. 168) ; forbidding the keeping of swine without a permit in waiting from the board of health (Quincy v. Kennard, 151 Mass. 563) ; forbidding the erection of any kind of a building without a permit from the commissioners of the town through their clerk (Commissioners, etc. v. Covey, 74 Md. 262) ; forbidding any person from remaining within the limits of the market more than twenty minutes unless permitted to do so by the superintendent or his deputy (Commonwealth v. Brooks, 109 Mass. 355)."

It may be predicted, however, that the grant of such arbitrary power will not be upheld except in those cases in which comparatively unimportant private interests are involved, or where the requirements of administrative efficiency demand the existence of such an authority. And, furthermore, the doctrine of Yick Wo v. Hopkins will of course apply in those cases where it is clearly shown that in fact the discretionary power which has been granted has been abused and oppressively or unfairly exercised.

In American School of Magnetic Healing v. McAnnulty33 as has been seen, a fraud order of the Postmaster-General was held not authorized by the statute under which the right to issue the order was claimed, the court holding that the law did not grant to the Postmaster-General a power to issue fraud orders except in cases where there was evidence, that is something more than the individual opinion of the Postmaster-General, to show that the business against which the orders might be issued is a fraudulent one. The statutory power of Congress, should it see fit, to vest in the Postmaster-General a general power to exclude from the use of the mails those concerns which in his judgment he might deem to be fraudulent was thus not involved or passed upon.