were directed so to do by the board of health, making it a misdemeanor to fail to comply with the directions of the board. Here the only requirement was that a sufficient quantity of water should be supplied on each floor of the tenement building. To answer this law, it was necessary only to show that a sufficient quantity of water was supplied for the health and convenience of the tenants. The direction of the board of health, or its determination that the supply was insufficient, was not conclusive; for, as the court said in sustaining the validity of the law: "The citizen cannot under this act be punished in any way, nor can any penalty be recovered from him for an alleged noncompliance with any of its provisions or with any order of the board of health, without a trial. The punishment or penalty provided for in section 665 cannot be enforced without a trial under due process of law, and upon such trial he has an opportunity to show whatever facts would constitute a defense to the charge." The manifest objection to this law is that upon the commissioner has been imposed, not the duty to enforce a law of the Legislature, but the power to make a law for the individual, and to enforce such rules of conduct as he may prescribe. It is thus arbitrary, special legislation, and violative of the Constitution. For the foregoing reasons, the police court is directed to annul the proceedings touching the trial, conviction, and judgment against petitioner herein. 27 27 "The claim that the statute commits to the arbitrary discretion of the Secretary of the Treasury the determination of what teas may be imported, and therefore in effect vests that official with legislative power, is without merit. We are of opinion that the statute, when properly construed, as said by the Circuit Court of Appeals, but expresses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute. The case is within the principle of Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495, 36 L. Ed. 294, where it was decided that the third section of the tariff act of October 1, 1890 (26 Stat. 567, c. 1244), was not repugnant to the Constitution as conferring legislative and treaty-making power on the President, because it authorized him to suspend the provisions of the act relating to the free introduction of sugar, molasses, coffee, tea, and hides. We may say of the legislation in this case, as was said of the legislation considered in Marshall Field & Co. v. Clark, that it does not, in any real sense, invest administrative officials with the power of legislation. Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute. To deny the power of Congress to delegate such a duty would, in effect, amount but to declaring that the plenary power vested in Congress to regulate foreign commerce could not be efficaciously exerted." Buttfield v. Stranahan, 192 U. S. 470, 496, 24 Sup. Ct. 349, 48 L. Ed. 525 (1904). CHAPTER II ADMINISTRATIVE DISCRETION SECTION 8.—CONSTRUCTION OF POWERS JACOB (TOMLINS) LAW DICTIONARY, LONDON, 1809, v. DISCRETION. Where anything is left to any person to be done according to his discretion, the law intends it must be done with a sound discretion and according to law; and the Court of King's Bench hath a power to redress things that are otherwise done notwithstanding they are left to the discretion of those that do them. 1 Lil. Abr. 477. Discretion is to discern between right and wrong, and therefore whoever hath power to act at discretion is bound by the rule of reason and law. 2 Inst. 56, 298. And though there be a latitude of discretion given to one, yet he is circumscribed that what he does be necessary and convenient, without which no liberty can defend it. Hob, 258. STATE v. JUSTICES OF INFERIOR COURT OF MORGAN COUNTY. (Supreme Court of Georgia, 1854. 15 Ga. 408.) Lester Markland applied to the inferior court of Morgan county for an order for a license to retail spirituous liquors in that county, having paid for such license, and being ready to give the bond and security required. The court refused to grant the license, on the ground that the applicant was an unfit person to be so licensed-having been twice convicted of selling spirituous liquor to slaves, contrary to law. On hearing this return to a mandamus nisi, Judge Hardeman refused to make the mandamus absolute. This decision is assigned as error. * * STARNES, J.1 * It is agreed that the first act on this subject, now of force in our state, was passed in 1791. This was entitled "An act for regulating taverns," etc. The first section provided that upon the petition of any person wishing to keep a tavern, or house 1 Only a portion of the opinion is printed. of entertainment, the justices of the inferior court, held for the county of such person's residence, shall "consider the convenience of such place intended for a tavern, and having regard to the ability of such petitioner to keep good and sufficient accommodations for travellers, their horses and attendants, may, at their discretion, grant a license," etc., provided that the applicant should enter into bond, with sufficient security, "conditioned for the keeping an orderly and decent house, with good and sufficient accommodation for travellers," etc. The second section required the rates of charges to be fixed by the court. The third provided a penalty for retailing without license. The fourth fixed the price to be paid for such license; and the fifth repealed conflicting acts, and gave to the corporations of Savannah and Augusta the right to regulate licenses in those cities. * * * Let us remark, also, that the limits of the discretion, by this act conferred upon the inferior court, are: (1) A consideration of the convenience of the locality intended for a tavern. (2) The ability of the petitioner to supply such tavern with proper accommodation for travellers, their horses and attendants. And that no discretion, whatever, is given the inferior court, by which to grant or refuse the license, according as the character of the applicant may be good or bad. The only provision which seems to have been contemplated, as a protection against the grant of such license, to a person of bad moral character, was the requirement of bond and security, for the keeping an orderly and decent house. * * Let the judgment be reversed.2 PEOPLE ex rel. SHEPPARD v. ILLINOIS STATE BOARD OF DENTAL EXAMINERS. (Supreme Court of Illinois, 1884. 110 Ill. 180.) This is an original proceeding in this court for a mandamus. The petition there for is as follows: "The petitioner, Isaac N. Sheppard, a citizen of the state of Illinois, residing in the city of Paris, county of Edgar, in said state, complaining, shows unto the court that he is twenty-one years of age; that he became a student at the Indiana Dental College, an institution duly. organized under the laws of the state of Indiana, located at the city of Indianapolis, in said state, on the 3d day of October, 1881, said institution being a college for the purpose of educating persons in the theory and practice of dentistry and dental surgery; that he attended said college as a student, as aforesaid, during his two full terms thereof, and pursued a course of study in the theory and practice of dentistry and dental surgery during all that time at said college, and that he completed said course of study, and was graduated from said col 2 Compare State v. Hanlon, 24 Neb. 608, 612, 613, 39 N. W. 780 (1888). lege on the 7th day of March, A. D. 1883, and thereupon, to wit, on the day last aforesaid, he received a diploma from the faculty of said Indiana Dental College, duly authenticated by the signatures of the faculty of said college and the officers thereof; that said Indiana. Dental College is a reputable dental college, and during the time petitioner was a student therein, and at the time of issuing said diploma by the faculty of said dental college to petitioner, there was annually delivered at said college a full course of lectures and instruction in dental surgery. Petitioner further shows unto the court that desiring to engage in the practice of dentistry in this state, he afterwards, to wit, on or about the 18th day of March, 1883, presented his said diploma so received from the faculty of said Indiana Dental College, duly authenticated, to the Illinois State Board of Dental Examiners, and tendered to said board a fee of one dollar, as provided by law, and demanded that said board issue to him, the petitioner, a license to practice dentistry in the state of Illinois, as provided by law. Petitioner further shows to the court that it was the duty of said board of dental examiners, upon the presentation of said diploma, and the tender of the fee of one dollar, as aforesaid, to said board by said petitioner, and the demand, as aforesaid, to issue to petitioner a license to practice dentistry in the state of Illinois, and that the said board. of dental examiners, not regarding their said duty in this behalf, thereupon, to wit, on the day last aforesaid, refused to issue to petitioner a license to practice dentistry in this state, and have continually refused, and still do refuse, to issue to petitioner such license. Petitioner further shows unto the court that the members of the said board of dental examiners are G. V. Black, A. W. Harlan, O. Wilson, J. J. Jennelle and George H. Cushing, and that by the failure and refusai of said board of dental examiners to so issue and grant petitioner a license to practice dentistry, as aforesaid, he, the petitioner, has been prevented from practicing dentistry in this state, as he is lawfully and by right entitled to do; that he has qualified himself for the practice of said profession at great expenditure of time and money, and depends upon the same for a living. Petitioner further shows unto the court that the determination of the questions involved in this petition is not only one of great importance to him individually, but is also a matter of public importance, as numbers of the graduates of said dental college, citizens of this state, and circumstanced like petitioner, desire to practice dentistry in this state, and are prevented therefrom by like refusal of said board of dental examiners. Wherefore being without other legal remedy, petitioner prays for a writ of mandamus, directed to the Illinois State Board of Dental Examiners, commanding them to forthwith receive from petitioner the fee of one dollar, and thereupon to issue to petitioner a license to practice dentistry in the state of Illinois, and to deliver the same to petitioner, and that such further order may be made in the premises as justice may require." The Attorney General demurs to the petition. Mr. Justice SCHOLFIELD delivered the opinion of the court. It is provided by the first section of an act approved May 30, 1881, entitled "An act to insure the better education of practitioners of dental surgery, and to regulate the practice of dentistry in the state of Illinois," "that it shall be unlawful for any person who is not at the time of the passage of this act engaged in the practice of dentistry in this state, to commence such practice, unless such person shall have received a diploma from the faculty of some reputable dental college duly authorized by the laws of this state, or of some other of the United States, or by the laws of some foreign country, in which college or colleges there was, at the time of the issue of such diploma, annually delivered a full course of lectures and instruction in dental surgery." And in the sixth section of the same act, after providing for examination before the board of dental examiners of all applicants for license to practice dentistry, is the following provision: "But said board shall, at all times, issue a license to any regular graduate of any reputable dental college, without examination, upon the payment by such graduate to the said board of a fee of one dollar." Other provisions of the act prohibit any person to practice dentistry without a license from the board, except such as are properly enrolled as having been practitioners at the time of the passage of the act. * * * The contention of the relator is that the board of dental examiners have no power to decide what is, or what is not, a "reputable dental college" that the law has itself defined what is a "reputable dental college," in providing that it shall be "duly authorized by the laws of this state, or some other of the United States, or by the laws of some foreign country, in which college. there was, at the time of the issue of such diploma, annually delivered a full course of lectures and instruction in dental surgery." We are unable to appreciate the force of this position. The word "reputable" would seem to be used here to express the meaning ordinarily attached to it. If it had been intended that a diploma from any dental college, or a diploma from any dental college "duly authorized by the laws of this state, or some other of the United States, or by the laws of some foreign country, in which college * *there was, at the time of the issue of such diploma, annually delivered a full course of lectures and instruction in dental surgery," we must presume the language would have so said. By using the word "reputable," we must presume the General Assembly meant "reputable." And since it is not used as being the equivalent and convertible for the other requirements in regard to the college, but as in addition thereto, we must presume it was intended to be so construed. * As a part of the current history of the times, and as an aid in arriving at the legislative intention, we know there were colleges of different kinds authorized by the laws of states in which they were located, in which there were pretended to be annually delivered full |