The Swadeshi Cotton Mills Co. Limited
Vs. The State of U. P. & Ors [1961] INSC 106 (17 March 1961)
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1381 1962 SCR (1) 422
CITATOR INFO :
F 1974 SC1232 (16) F 1977 SC 183 (31) RF 1978
SC1428 (14) RF 1990 SC 322 (9)
ACT:
Industrial Dispute-Delegated
Legislation--Statute authorising Government to appoint industrial courts and
lay down procedure-Validity of-Condition precedent to making of order-Recital
Order, if necessary-Failure to set out condition in order-Effect of-Affidavit
showing fulfillment of condition, if admissible-U. P. Industrial Disputes Act,
1947 (28 of 1947), s. 3(c), (d) and (g)-G. O. No. 615 dated March 15, 1951.
HEADNOTE:
Clauses (c), (d) and (9) of S. 3 of the U. P.
Industrial Disputes Act, 1947, empower the State Government to make provision,
by general or special order, for appointing industrial courts, for referring
any industrial dispute for conciliation or adjudication in the manner provided
in the order and for any incidental or supplementary matters which appear to
the State Government necessary or expedient for the purposes of the order.
Section 3 provides that such a general or special order is to be made if, in
the opinion of the State Government it is necessary or expedient to do so for
securing the public safety or convenience, or the maintenance of public order
or supplies and services essential to the life of the community, or for
maintaining employment. On March 15, 1951, the State Government made a general
order No. 615 under these provisions but did not recite in the order its
opinion as to the existence of the conditions prescribed in S. 3. A reference
of an industrial dispute was made under the G. O. and an award was given
against the appellant. The appellant contended that the G. O. setting up the industrial
tribunals was invalid as s. 3 of the Act was unconstitutional as it delegated
essential legislative functions to the Government so far as cls. (c), (d) and
(g) were concerned and that the G. O. was bad as the condition precedent for
its formulation was not recited in the order itself. The respondent filed an
affidavit that Government had formed the requisite opinion before making the G.
O. Held, that s. 3 was not unconstitutional as there was no delegation of
essential legislative functions to the Government. The legislature has
indicated its policy and has made it a binding rule of conduct. Section 3 lays
down the conditions in which the Government is to act; it lays down that
Government may make general or special order if the conditions are satisfied;
it SC6213 423 also provides what those orders are to contain. All that is left
to the Government is to provide by subordinate rules for carrying out the
purpose of the legislation.
In re The Delhi Laws Act, 1912, [1951] S.C.R.
747 and Queen v. Burah, (1878) L.R. 5 I.A. 178, applied.
Held, further, that the G. O. was valid and
the failure to mention the condition precedent in the order itself was remedied
by the filing of the affidavit. Where a condition precedent has to be satisfied
before a subordinate authority can pass an order, (executive or inthe nature of
subordinate legislation), it is not necessary that the satisfaction of the
condition should be recited in the order itself, unless the statute requires
it. But it is desirable that it should be so mentioned for' then the
presumption that the condition was satisfied would immediately arise and the
burden would be on the persons challenging the order to show that the recital
is not correct. Even when the recital is not made in the order, it will not
become void abinitio and only a further burden is cast on the authority passing
the order to satisfy the court by other means, e. g., by filing an affidavit,
that the condition precedent was satisfied.
The State of Bombay v. Purushottam jog Naik,
[1952] S.C.R. 674, Biswabhusan" Naik v. The State of Orissa, [1955] 1
S.C.R. 92 and The State of Bombay v. Bhanji Munji, [19551, S.C.R. 777, applied.
King Emperor v. Sibnath Banerjee, [1944]
F.C.R. 42 and King Emperor v. Sibnath Banerjee,. [1945] F.C.R. 216, referred
to.
Wichita Railroad & Light Company v.
Public Utilities Commission of. the State of Kansas, (1922) 67 L. Ed. 124,
Herbert Mahler v. Howard Eby, (1924) 68 L. Ed. 549 and Panama Refining Company
v. A. D. Ryan, (1935) 79.L. Ed. 446.
distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 327 of 1958.
Appeal from the judgment and decree dated
March 6, 1956, of the Allahabad High Court in Civil Misc. Writ Petition No. 967
of 1953.
WITH CIVIL APPEAL Nos. 363 to 369 of 1958.
Appeals from the judgments and decrees dated
February 1, 1957, of the Allahabad High Court in Civil Misc. Writ Petitions
Nos. 51 (Lucknow Bench), 523, 524, 607, 632, 633 and 634 of 1955.
G. S. Pathak and S.P. Varma, for the
appellant (In C. A. No. 327 of 1958).
424 C. B. Agarwala, G. C. Mathur and C. P.
Lal, for respondents Nos. 3 to 4 (In C. A. No. 327 of 1958).
H. N. Sanyal, Additional Solicitor-General
for, India, H. S. Brar, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P.
L. Vohra, for the appellants (In C. As. Nos. 363 to 369 of 1958).
C. B. Agarwala and. C. P. Lal, for respondent
No. 1 (In C. AB. Nos. 363 to 369 of 1958).
Bhawani Lal and Dharam Bhusan, for respondent
No. 4 (In C. A. No. 369 of 1958).
J. P. Goyal, for respondent No. 4 (In C. As.
Nos. 366 and 368 of 1958).
S. C. Das in person, for respondent No. 4 (In
C. A. No. 367 of 1958).
1961. March 17. The Judgment of the Court was
delivered by WANCHOO, J.-This group of appeals raises a question about the
constitutionality of s. 3 of the United Provinces Industrial Disputes Act,
1947, (U. P. XXVIII of 1947), (hereinafter referred to as the Act) and the
validity of two general orders passed there under an March 15, 1951. The appellants
are certain industrial concerns. There were disputes between them and their
workmen which were referred for adjudication to industrial tribunals alleged to
have, been set up under the general orders of March 15, 1951.
Certain awards were passed which were taken
in appeal by the present appellants to the Labour Appellate Tribunal and they
failed there also. They then filed petitions under Art. 226 of the Constitution
in the Allahabad High Court challenging the constitutionality of s. 3 of the Act
and the validity of the two general orders passed on March 15, 1951, by which
industrial tribunals were set up. The High Court held that s. 3 of the Act was
constitutional. It however held that the two general orders dated March 15,
1951, were invalid;
but it went on to hold that orders of
reference passed in these cases were special orders as envisaged under s. 3 of
the Act and were therefore not invalid; in consequence it dismissed 425 the
petitions. The appellants then applied for and obtained certificates for leave
to appeal, and that is how the matter has come up before us.
It is unnecessary to set out the facts
further in respect of these appeals, as the only points argued before us are
about the constitutionality of s. 3 and the validity of the two general orders
of 1951 and also of the references made in these cases. It is not disputed that
if the appellants fail on these points their appeals in this Court must fail.
We shall therefore first take up the question, of the constitutionality of s. 3
of the Act.
The relevant provision of s. 3 in 1,951 with
which we are concerned was in these terms:"If, in the opinion of the State
Government it is necessary or expedient so to do for securing the public safety
or convenience, or the maintenance of public order or supplies and services
essential to the life of the community, or for maintaining employment, it may,
by general or special order, make provision(c) for appointing industrial
courts;
(d) for referring any industrial dispute for
conciliation or adjudication in the manner provided in the order;
(g) for any incidental or supplementary
matters which appear to the State Government necessary or expedient for the
purpose; of the order:
The main contention of the appellants is that
s. 3 is unconstitutional as it delegates essential legislative function to the
Government so far 'as cls. (c), (d) and (g) are concerned. Reliance in this
connection is placed on the following observations of Kania C. J. in In re The
Delhi Laws Act, 1912 (1), where he. was considering the meaning of the word
"delegation":"When a legislative body passes an Act it has
exercised its legislative function. The essentials of such function are the
determination of the legislative policy and its formulation as a rule of
conduct.
(1) [1951] S.C.R. 747,767-54 426 These
essentials are the characteristics of a legislature by itself......... Those
essentials are preserved, when the legislature specifies the basic conclusions
of fact, upon ascertainment of which, from relevant data, by a designated
administrative agency, it ordains that its statutory command is to be
effective.
The legislature having thus made its laws, it
is clear that every detail for working it out and for carrying the enactments
into operation and effect may be done by the legislature or may be left to
another subordinate agency or to some executive officer. While this also is
sometimes described as a delegation of legislative powers, in essence it is
different from delegation of legislative power which means a determination of
the legislative policy and formulation of the same as a rule of conduct."
To the same effect were the observations of Mukherjea J. in that case at p.
982:
"The essential legislative function
consists in the determination or choosing of the legislative policy and of
formally enacting that policy into a binding rule of conduct.
It is open to the legislature to formulate
the policy as broadly and with as little or as much details as it thinks proper
and it may delegate the rest of the legislative work to a subordinate authority
who will work out the details within the framework of that policy.
'So long as a policy is laid down and a
standard established by statute no constitutional delegation of legislative
power is involved in leaving to selected instrumentalities the making of
subordinate rules within prescribed limits and the determination of facts to
which the legislation is to apply'." What we have to see therefore is
whether the legislature in this case performed its essential legislative function
of determining and choosing the legislative policy and of formally enacting
that policy into a binding rule of conduct. It was open to the legislature to
formulate that policy as broadly and with as little or as much details as it
thought proper. Thereafter once a policy is laid down and a standard
established by statute, there is no question of delegation of 427 legislative
power and all that remains is the making of subordinate rules within prescribed
limits which may be left to selected instrumentalities. If therefore the
legislature in enacting s. 3 has chosen the legislative policy and has formally
enacted that policy into a binding rule of conduct, it could leave the rest of'
the details to Government to prescribe by means of subordinate rules within
prescribed limits. Now s. 3 lays down under what conditions it would be open to
Government to act under that section; it also lays down that the Government may
act by passing general or special order, once those conditions are fulfilled;
it also provides what will be contained in the general or special order of
Government. The power given to Government is inter alia to appoint industrial
courts, to refer any industrial dispute for conciliation or adjudication in the
manner provided in the order, and to make any incidental or supplementary
provision which may be necessary or expedient for the purposes of the order.
Thus the legislature has indicated its policy and has made it a binding rule of
conduct. It has also indicated when the Government shall act under s. 3 and how
it shall act. It has further indicated what it shall do when it acts under s.
3. In these circumstances we are of the opinion that it cannot be said that the
delegation made by s. 3 is excessive and goes beyond permissible limits. The order
to be passed by the Government under s. 3 would provide, inter alia, for
appointment of industrial courts, for referring any industrial dispute for
conciliation or adjudication, and for incidental or supplementary matters which
may be necessary or expedient. The Government will have to act within those
prescribed limits when it passes, an order under s. 3 which will have the force
of subordinate rules. What has been urged on behalf of the appellants is that
the section does not indicate what powers the industrial courts will have, what
will be the qualifications of persons constituting such courts and Where they
will sit; and it is urged that these are essential matters which the
legislature should have provided for itself Reference in this connection was
made to the observations of the Privy Council in 428 Queen v. Burah (1), which
was a case of conditional legislation. The Privy Council observed there that
the proper legislature having exercised its judgment as to place, person, laws
and powers and the result of that judgment having been conditional legislation
as to all these things, the legislation would be absolute as soon as the
conditions a re fulfilled. These observations have in our opinion nothing to do
with such matters of detail as the place where a court or tribunal will sit or
the qualifications of persons constituting the tribunal; they refer to more
fundamental matters when the words "place" and "person" are
used therein. The place there must mean the area to which the legislation would
apply; and so far as that is concerned, the legislature has determined the area
in this case to which s. 3 will apply, namely, the whole of the State of Uttar
Pradesh. Similarly, the word "Person" used there refers to persons to
whom legislation will apply and that has also been determined by the
legislature in this case, namely, it will apply to employers and employees of
industrial concerns. We have already said that the conditions under which the
order will be passed have also been set out in the opening part of s. 3, and
how the Government will act is also set out, namely, by referring any
industrial dispute that may arise for conciliation or adjudication. As to the
power of the industrial court that in our opinion is also provided by s. 3,
namely, that an industrial court will adjudicate on the industrial dispute
referred to it. Therefore all that was left to the Government to provide was to
set up machinery by means of a general order which has the force of subordinate
rules to carry out that legislative policy which has been enacted in broad
details in s. 3 and has been formally enacted into a binding rule of con. duct.
We are therefore of opinion that s. 3 is not unconstitutional in any manner,
for there is no delegation of essentials of legislative function there under.
All that has been left to the Government by
that section is to provide by subordinate rules for carrying out the purpose of
the legislation. We must therefore reject (1) (1878) L.R. 5 I.A. 178 429 the
contention that s. 3 is unconstitutional on the ground that it suffers from the
vice of excessive delegation.
This brings us to the validity of the general
order No. 615 of March 15, 1951, passed under s. 3. The preamble to that order
was in these terms:"In exercise of the powers conferred by clauses (b),
(c), (d) and (g) of section 3 and section 8 of the U. P. Industrial Disputes
Act, 1947, (U. P. Act No. XXVIII of 1947) and in supersession of Government
order No. 781(L)/XVIII dated March 10, 1948, the Governor is pleased to make
the following order, and to direct, with reference to section 19 of the said
Act, that notice of this Order be given by publication in the Official
Gazette." Then follows the order setting up conciliation boards for the
purpose of conciliation and industrial tribunals for the purpose of
adjudication. The main contention on behalf of the appellants is that s. 3
prescribes certain conditions precedent before an order could be passed there under
and those conditions precedent must be recited in the order in order that it
may be a valid exercise of the power conferred by s. 3. Now there is no doubt
that s. 3 gives power to the State Government to make certain provisions by
general or special order, if, in its opinion, it is necessary or expedient so
to do for securing public safety or convenience, or the maintenance of public
order or supplies and services essential to the life of the community or for
maintaining employment. The forming of such opinion is a condition precedent to
the making of the order. The preamble to the second order also does not contain
a recital that the State Government had formed such opinion before it made the
order. It is therefore contended on behalf of the appellants that the orders
were bad as the condition precedent for their formulation was not recited in
the orders themselves. At a later stage the appellants also contended that in
any case the orders were bad because as a fact they were passed without any
satisfaction of the State Government as required under s. 3, though no
affidavit was filed by the appellants in this behalf in support 430 of this
averment. Unfortunately, the State also filed no affidavit to show that the
conditions precedent provided ins. 3 had been complied with, even though there
was no recital thereof on the face of the order. We should have expected that
even though the appellants did not file an affidavit in support of their case
on this aspect of the matter, the State would as a matter of precaution have
filed an affidavit to indicate whether the conditions precedent set out in s. 3
had been complied with, considering that it was a general order which was being
attacked under which a large number of adjudications must have taken place. The
High Court has commented on this aspect of the matter and has said that the State
Government did not file any affidavit in this connection to show that as a
matter of fact the State Government was satisfied as required by s. 3 even
though there was no recital of that satisfaction in the order itself Taking
into account, however, the importance of the matter, particularly as it must
affect a large number of adjudications affecting a large number of employers
and workmen, we asked the State Government if it desired to file an affidavit
before us even at this stage. Thereupon the State Government filed an affidavit
sworn by the Secretary to Government, Labour Department. The affidavit says
that the drafts of G. O. No. 615 and the consequential order G. O. No. 671
passed on March 15, 1951, were put up before the then labour Minister. The said
notifications were issued only after all the aspects of the matter were fully
considered by the State Government and it had satisfied itself that it was
necessary and expedient to issue the same for the purpose of securing public
convenience, and maintenance of public order and supplies and services essential
to the community and for the maintenance of employment.
We accept this affidavit and it follows
therefore that the satisfaction required as a condition precedent for the issue
of an order under s. 3 of the Act was in fact there before the order No. 615
was passed on March 15, 1951, followed by the consequential order No. 671 of
the same date. In view of this the only question that we have to consider is
whether 431 it is necessary that the satisfaction should be recited in the
order itself and whether in the absence of such recital an order of this nature
would be bad.
The first contention of Shri Patliak, who
appears for one of the appellants, is that where a condition precedent is laid
down for a, statutory power being' exercised it must be fulfilled before a
subordinate authority can exercise such delegated power. As to this contention
there can be no dispute. Further, according to Shri Pathak, there must be a
recital. in the order that the condition is fulfilled before the subordinate
authority acts in the exercise of such delegated power. If there is no such
recital in the instrument by which the delegated power is exercised, the defect
cannot be cured by an affidavit filed in the proceedings and the order would be
bad ab initio. It is urged that where subordinate rules of this nature have to
be made and they affect the general public or a section thereof, conditions
precedent to the exercise of the power must be recited when the power is exercised
in order that the public may know that the rules are legal and framed after
satisfying the conditions necessary for the, purpose.
Moreover, some of the subordinate rules may
have to be enforced by courts and tribunals and it is necessary that courts and
tribunals should also know by the presence of the recital in the order that the
rules are legal and binding and have been 'framed after the condition precedent
had been satisfied. In particular, it is urged that where the rules are of a
general nature and are subordinate legislation the satisfaction of the
condition precedent becomes a part of the legislative process so far as the
subordinate authority is concerned and the defect in legislative process cannot
be remedied later by affidavit.
Shri C. B. Aggarwala on the other hand
contends that where a statute gives power to make an order subject to certain
conditions then unless the statute requires the conditions to be set out in the
order it is not necessary that the conditions should appear on the face of the
order and in such a case it should be presumed that the condition was satisfied
unless the 432 contrary is established. He drew a distinction between those
cases where the condition precedent is the subjective opinion of the
subordinate' authority and those where the statute requires a hearing and a
finding. In the former case he contends that the presumption should be in
favour of the opinion having been formed before the order was passed though in
the latter case it may be that the order should show that there was a hearing
and a finding.
The power to pass an order under s. 3 arises
as soon as the necessary opinion required thereunder is formed. This opinion is
naturally formed before the order is made. If therefore such an opinion was
formed and an order was passed thereafter, the subsequent order would be a
valid exercise of the power conferred by the section. The fact that in the
notification which is made thereafter to publish the order, the formation of
the opinion is not recited will not take away the power to make the order which
had already arisen and led to the making of the order. The validity of the
order therefore does not depend upon the recital of the formation of the
opinion in the order but upon the actual formation of the opinion and the
making of the order in consequence. It would therefore follow that if by
inadvertence or otherwise the recital of the formation of the opinion is not
mentioned in the preamble to the order the defect can be remedied by showing by
other evidence in proceedings where challenge is made to the validity of the
order, that in fact the order was made after such opinion had been formed and
was thus a valid exercise of the power conferred by the law. The only exception
to this course would be where the statute requires that there should be a
recital in the order itself before it can be validly made.
There is no doubt that where a statute
requires that certain delegated power may be exercised on fulfillment of
certain conditions precedent, it is most desirable that the exercise should be
prefaced with a recital showing that the condition had been fulfilled. But it
has been held in a number of cases dealing with executive orders that even if
there is some lacuna of 433 this kind, the order does not become ab initio
invalid and the defect can be made good by filing an affidavit later on to show
that the condition precedent was satisfied. In The State of Bombay v.
Purushottam Jog Naik (1), which was a case relating to preventive detention it
was held by this Court that even if the order was defective in form it was open
to the State Government to prove by other means that it was validly made. In
Biswabhusan Naik v. The State of Orissa (2), which was a case relating to
sanction under the Prevention of Corruption Act, No. II of 1947, this Court
held that "it is desirable to state the facts on the face of sanction,
because when the facts are not set out in the sanction, proof has to be given
aliunde that sanction was given in respect of the facts constituting the offence
charged; but an omission to set out the facts in the sanction is not fatal so
long as the facts can be and are proved in some other way". In a later
case in The State of Bombay v. Bhanji Munji (3) which was a case of requisition
under the Bombay Land Requisition Act, this Court held that it was not
necessary to set out the purpose of the requisition in the order; the
desirability of such a course was obvious because when it was not done proof of
the purpose must be given in other ways. But in itself an omission to set out
the purpose in the order was not fatal so long as the facts were established to
the satisfaction of the court in some other way.
We see no difficulty in following this
principle in the case of those orders also which are in the nature of
subordinate legislation. Whether orders are executive or in the nature of
subordinate legislation their validity depends on certain conditions precedent
being satisfied. If those conditions precedent are not recited on the face of
the order and the fulfilment of the conditions precedent can be established to
the satisfaction of the court in the case of executive orders we do not see why
that cannot be made good in the same way in the case of orders in the nature of
(1) [1952] S.C.R. 674. (2) [1955] 1 S.C.R. 92.
(3) [1955] 1 S.C.R. 777.
55 434 subordinate legislation. We cannot
accept the extreme argument of Shri Aggarwala that the mere fact that the order
has been passed is sufficient to raise the presumption that conditions
precedent have been satisfied, even though there is no recital in the order to
that effect. Such a presumption in our opinion can only be raised when there is
a recital in the order to that effect. In the absence of such recital if the
order is challenged on the ground that in fact there was no satisfaction, the
authority passing the order will have to satisfy the court by other means that
the conditions precedent were satisfied before the order was passed. We are
equally not impressed by Shri Pathak's argument that if the recital is not
there, the public or courts and tribunals will not know that the order was
validly passed and therefore it is necessary that there must be a recital on
the face of the order in such a case before it can be held to be legal. The
presumption as to the regularity of public acts would apply in such a case; but
as Boon as the order is challenged and it is said that it was passed without
the conditions precedent being satisfied the burden would be on the authority
to satisfy by other means (in the absence of recital in the order itself) that
the conditions precedent had been complied with. The difference between a case
where a general order contains a recital on the face of it and one where it
does not contain such a recital is that in the latter case the burden is thrown
on the authority making the order to satisfy the court by other means that the
conditions precedent were fulfilled but in the former case the court will
presume the regularity of the order including the fulfillment of the conditions
precedent;
and then it will be for the party challenging
the legality of the order to show that the recital was not correct and that the
conditions precedent were not in fact complied with by the a authority: [see
the observations of Spens C. J. in King Emperor v. Sibnath Banerjee (1), which
were approved by the Privy Council in King Emperor v. Sibnath Banerjee (2)].
Nor are we impressed with the contention of Shri Pathak that conditions become
a part of (1) (1944) F.C.R. 1, 42. (2) (1945) F.C.R 195, 216-7.
435 legislative process and therefore where
they are not complied with the subordinate legislation is illegal and the
defect cannot be cured by an. affidavit later. It is true that such power may
have to be exercised subject to certain conditions precedent but that does not
assimilate the action of the subordinate executive authority to something like
a legislative procedure, which must be followed before a bill becomes a law.
Our conclusion therefore is that where certain conditions precedent have to be
satisfied before a subordinate authority can pass an order, (be it executive or
of the character of subordinate legislation), it is not necessary that the
satisfaction of those conditions must be recited in the order itself, unless
the statute requires it, though, as we have already remarked, it is most
desirable that it should be so, for in that case the presumption that the
conditions were satisfied would immediately arise and burden would be thrown on
the person challenging the fact of satisfaction to show that what is recited is
not correct.
But even where the recital is not there on
the face of the order, the order will not become illegal ab initio and only a
further burden is thrown on the authority passing the order to satisfy the
court by other means that the conditions precedent were complied with. In the
present case this has been done by the filing of an affidavit before us. We are
therefore of opinion that the defect in the two orders of March 15, 1951, has
been cured and it is clear that they were passed after the State Government was
satisfied as required under s. 3 of the Act. Therefore Government Orders Nos.
615 and 671 of March 15, 1951, with which we are concerned in the present
appeals are valid under s. 3 of the Act.
It remains to consider certain cases cited by
Shri Pathak in support of his contention. The first case to which reference may
be made is Wichita Railroad & Light Company v. Public Utilities Commission
of the State of Kansas (1).
That was a case of a Commission which had to
give a hearing and a finding that they were unreasonable before contract rates
with a public (1) (1922) 67 L. Ed. 124.
436 utility company could be changed. After
referring to s. 13 of the Act under consideration, the U. S. Supreme Court held
that "a valid order of the Commission under the act must contain a finding
of fact after hearing and investigation, upon which the order is founded, and
that, for lack of such a finding, the order in this case was void". It
rejected the argument that the lack of express finding might be supplied by
implication and by reference to the averments of the petition invoking the
action of the Commission and rested its decision on the principle that an
express finding of unreasonableness by the Commission was indispensable under
the statutes of the State. This case in our opinion is based on the provision
of the statute concerned which required such a finding to be stated in the
order and is no authority for the proposition that an express recital is
necessary in the order in every case before a delegate can exercise the power
delegated to it.
The next case is Herbert Mahler v. Howard Eby
That was a case dealing with deportation of aliens. The statute provided for
deportation if the Secretary (Labour) after hearing finds that such aliens were
undesirable residents of United States. But the Secretary made no express
finding so far as the warrant for deportation disclosed it. Nor was the defect
in the warrant of deportation supplied before the court. The court held that
the finding was made a condition precedent to deportation and it was essential
that where an executive is exercising delegated legislative power he should
substantially comply with all the statutory requirements in its exercise, and
that, if his making a finding is a condition precedent to this act, the fulfillment
of that condition should appear in the record of the act, and reliance was
placed on the case of Wichita Railroad & Light Company v. Public Utilities
Commission (2). This again was a case of a hearing and a finding required by
the statute to be stated in the order and must therefore be distinguished from
a case of the nature before us. It may however be added that the court did not
discharge the deportees and (1) (1924) 68 L. Ed. 549(2) (1922) 67 L. Ed. 124437
gave a reasonable time to the Secretary (Labour) to correct and perfect his
finding on the evidence produced at the original hearing or to initiate another
proceeding against them.
The last case is Panama Refining Company v.
A. D. Ryan(1).
In that case s. 9 (e) of the National
Industrial Recovery Act of 1933 was itself struck down on the ground of
excessive delegation, though it was further held that the executive order
contained no finding and no statement of the grounds of the President's action
in enacting the prohibition. This case in our opinion is not in point so far as
the matter before us is concerned, for there the section itself was struck down
and in consequence the executive order passed there under was bound to fall.
We are therefore of opinion that s. 3 of the
Act is constitutional so far as els. (c), (d) and (g) are concerned and orders
Nos. 615 and 671 passed on March 15, 1951 are legal and valid. In the
circumstances it is not necessary to consider whether the High Court was right
in holding that the orders of references in these cases were special orders
under s. 3 and the references under those orders were therefore valid. In this
view of the matter, the appeals fail and are hereby dismissed. In the
circumstances we pass no order as to costs.
Appeals dismissed.
(1) (1935) 79 L. Ed446.
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