Appleton, Wisconsin, in the fall of 1882, the dynamo unit for generating current was of 180-light capacity, with lamps of ten candlepower each. Forty years later, the manufacturing company that continues to carry on the enterprise thus started is now installing the world's largest generator, which will supply 87,000 horsepower, or say 2,500,000 lamps of sixteen candlepower. Units of this size are not likely to be few, but the question arises as to whether there may not be a limit imposed by both engineering and commercial difficulties. Meantime, a Chicago company which with steam has beaten Niagara as a bulk producer of electrical energy with water, is to have in operation by August, 1924, the largest station in the world, producing 600,000 kilowatts with ten huge steam turbo-generator units of from 40,000 to 60,000 kilowatts (75,000 horsepower each). To grind out that quantity of "current" will mean a consumption of about 2,000,000 tons of coal a year, but ten years ago an equivalent performance would have required 80 per cent more coal, or 3,500,000 tons a year. Once more the question arises: "Is this the ultimate, and why should it be?" The same question occurs again as to the transformers, which like springboards are used to catapult the electrical energy long distances. A hint of coming change is again found in the novel "magnetron" types of transformer that link the new electron discoveries with the prior art of electro-dynamics. All of which leads us to the discussion of utilizing other sources of energy than coal and water power. All the proposed newer methods involve resort to electricity. Some of these economies are fanciful, some are plausible; some have already been tried out with little relative success. There are the tides, the winds and the waves, for example. Nothing is really done with them today, although all that is necessary is to hitch them to any bunch of revolving wires and magnets, and current is at once available for use or to store. Nobody has yet found out on any practical scale how to utilize the enormous energy of the sun, although the scorching Sahara might well put Niagara to the blush as a power producer. More than one interesting effort has been made to secure electricity directly from the consumption of carbon, wet or dry; or from heat applied to thermo-electric couples. But if these or kindred schemes have any validity, the

data certainly escaped record when the United States Census Office compiled in 1921 its statistics of American electrical machinery made by 1,333 establishments to the amount of $833,986,000 in value of product. Just now a delightful theme of scientific speculation is "atomic energy" and its possible availability. Radio-activity in its later investigations has not only opened up many new paths of pursuit into the inner mysteries of nature and the constitution of matter, but has suggested many new arts and appliances hitherto undreamed of. "Were we able to harness this energy, we should have," says Dr. Steinmetz enthusiastically, "a force beyond anything known before in terms of power. If we could extract, at will and whenever we pleased, the energy in a pound of radio-active substance, we should derive therefrom as much energy as we could by burning about 1,500 tons of coal, and there would be as much expansive or explosive force in that pound as in 1,500 tons of dynamite. That is one rather concrete way of putting what Nikola Tesla, thirty years ago, said in a poetical vein worthy of his favourite Goethe: "There is a possibility of obtaining energy not only in the form of light, but motive power, and energy of any other form, in some more direct way from the medium. We are whirling through endless space with an inconceivable speed. All around us everything is spinning, everything is moving, everywhere is energy. There must be some way of availing ourselves of this energy more directly." At the very beginning of these advances lies all this subtle modern study of atomic velocities; the discovery that one can surgically remove an electron from an atom, and even the theories that matter itself is no more than "electrical whorls" screwed up in a tight knot. In appeal to the imagination, the ethics of the dust are not comparable with modern electrophysics.

THOMAS COMMERFORD MARTIN.

ORDINANCE MAKING POWERS OF THE

PRESIDENT

BY JAMES HART

THE lawyer as well as the layman is often puzzled by the phrase "ordinance making power" as applied to the American Executive. Has he not read in the books that our executives have no legislative powers? Do not our State constitutions still have their distributing clauses? Does not the Federal Constitution declare that "all legislative powers herein granted" are vested in Congress? And is it not a fundamental principle that delegata potestas non potest delegari? The truth is, there is here as elsewhere a curious divergence between the lawyer's theory and actual constitutional practice. Few of our legal text-writers, none of our courts, speak of the ordinances of any administrative organs except municipal corporations. With this exception the term is almost unknown to the technical language of our law. There are indeed writers who recognize that our executives do in fact have powers of a legislative character; but even they are not agreed on a term for such power. President Goodnow calls it the ordinance power or the power of ordinance; Professor Willoughby names it the ordinance making power; while Professor Fairlie has recently spoken of it as administrative legislation. The term was used in England in the fourteenth century to designate an enactment of the King or the King in Council without the assent of Parliament. The power of ordinance, which became more limited than the power of legislation, died out, says Anson, in the fifteenth century, only to be revived in the next as the power of proclamation. In 1610 Coke declared in a famous opinion that proclamations might be used to warn the subjects of what the law was, but not to create a new offense. They continued to be so used, however, until the abolition of the extraordinary court of the Star Chamber in 1641. In both England and America the proclamation is a form of executive promulgation, the contents of

which may be either legislative or merely hortatory or declaratory. Thus we have the Emancipation Proclamation and the annual Thanksgiving proclamation in the same form. The English have also such terms as Order in Council and statutory order, while we have both Executive Order and rules and regulations. But each of these again refers to a particular form or class of ordinance, while the very variety of terms, as contrasted with German nomenclature, shows that the power of executive legislation is little recognized as a distinct category of our jurisprudence.

If the term is unusual and not even fixed, the fact of Presidential ordinance making has existed from the foundation of the Republic. In our commercial warfare during the Napoleonic wars, Congress delegated discretionary powers to the President in connection with embargoes and aliens. Then in the war for Southern independence President Lincoln issued a number of legislative proclamations. Such were the proclamation of the blockade, the proclamation prohibiting commercial intercourse with the so-called rebellious States, the suspension of the writ of habeas corpus, the Emancipation Proclamation, and the proclamation of the amnesty. Some of his ordinances were issued under Congressional authorization, others were issued on his own authority and were later ratified by Congress. Some, such as the amnesty proclamation, resulted from the exercise of his constitutional functions as well as from Congressional delegation. Again in 1917-18 the necessities of war compelled Congress to delegate to President Wilson wide powers of regulation; and this practice, as illustrated in the selective draft and numerous other acts, became a striking aspect of our war legislation. Yet while more prominent in war, Presidential ordinance making is known to peace. Perhaps the insistence of President Harding upon flexible tariff rates to be changed by the Executive is an indication that the present Administration has learned a lesson from the last.

In 1794 Congress delegated to President Washington the power, within defined time limits, to lay and enforce an embargo at his discretion during the adjournment of that body. It practically said that in its judgment the emergency might, at any moment before it met again, require an embargo, and left it to

the President to decide whether this would be the case, and if so, what ships the embargo should apply to and what means of enforcement should be adopted. The power here delegated is evidently legislative. In other cases Congress itself creates legal rights and duties, defining them in principle, but leaving to the Executive the function of concretizing, so to speak, the abstract legislative rule. The Executive is morally bound if not legally forced to do this on the basis of the scientific knowledge and practical experience available to it; but even so a degree of discretion or judgment is involved. Such a power may best be described as sub-legislative, a word which I use to indicate the fact that while it does not involve discretion in the premises, it is discretionary, and the resulting details become a part of the complete rule of law. An illustration will make this clear. The Tea Inspection Act of 1897, upheld in Buttfield v. Stranahan, prohibited the importation of "inferior" teas, while it delegated to executive organs the office of fixing the uniform standards by which this inferiority should be determined. The abstract rule was to be translated by the Executive into concrete terms.

To illustrate only one more kind of delegation: Congress may define in detail a system of rights and duties, which are to go into effect under certain conditions, the existence of these conditions to be determined by the Executive. When this determination involves merely the finding of an objective fact it cannot be said to be legislative in character-unless any power of final determination becomes, when abused or unwisely used, the discretionary fixing of a portion of a legislative rule. When, however, the process cannot be done by the mere application of objective standards, but really involves subjective valuation, the part played by the Executive is again sub-legislative. Such was the case with the provision of the McKinley Tariff Act of 1890, upheld in Field v. Clark, which, while putting certain articles on the free list, provided that it was the duty of the President, whenever any country from which we imported such articles imposed what he considered "reciprocally unequal and unreasonable" duties on our products, to suspend by proclamation the provision for their free importation from such country; and that thereupon a schedule of duties fixed in the act should go into effect with reference to