Delegata potestas non potest delegari

Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that "no delegated powers can be further delegated." Alternatively, it can be stated delegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power").[1]

The principle is present in several jurisdictions such as that of the United States, the United Kingdom and India as well as in Catholic canon law.

Canada

The principle was first articulated in Canada in 1943, in an article in the Canadian Bar Review by John Willis. While it is acknowledged as "the seminal articulation of the law governing the subdelegation of statutory and discretionary powers"[1] and it is still often cited,[2] it has not achieved the rigid standing that was originally intended. The maxim has had some success as an operating principle in the restriction of delegation of legislative and judicial powers, but the demands of modern governmental regulatory practices have inhibited its application in the delegation of administrative powers.[1] Exceptions are rare and dependent on the statute conferring power.[3][4]

India

In India, the law was first stated in A K ROY v. State Of Punjab, (1986) 4 SCC 326, that sub delegation of delegated power is ultra vires to the Enabling Act.[5][6]

United States

In United States, one of the earliest mentions of the principle occurred when it was cited by counsel for one of the litigants before the Supreme Court of Pennsylvania in 1794, in M'Intire v. Cunningham, 1 Yeates 363 (Pa. 1794). The summary of the case reports, "Mr. Wilson had given no power to Noarth to transact his business; but if he even had, it is a maxim, that delegata potestas non potest delegari."[7]

The maxim was first cited by the Supreme Court of the United States in United States v. Sav. Bank, 104 U.S. 728 (1881) in which the case summary reports that one of the litigants argued, "The duty imposed by statute on the commissioner cannot be delegated to a collector. Delegata potestas non potest delegari."[8]

Catholic canon law

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Canon 137 of the 1983 Code of Canon Law states:

§ 1 Ordinary executive power can be delegated either for an individual case or for all cases, unless the law expressly provides otherwise.
§ 2 Executive power delegated by the Apostolic See can be subdelegated, either for an individual case or for all cases, unless the delegation was deliberately given to the individual alone, or unless subdelegation was expressly prohibited.
§ 3 Executive power delegated by another authority having ordinary power, if delegated for all cases, can be subdelegated only for individual cases; if delegated for a determinate act or acts, it cannot be subdelegated, except by the express grant of the person delegating.
§ 4 No subdelegated power can again be subdelegated, unless this was expressly granted by the person delegating.

See also

References

  1. 1 2 3 Mullan, D.J. (2001) Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. ISBN 1-55221-009-X. p. 368
  2. ↑ Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12
  3. ↑ Mullan, D.J. (2001) Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. ISBN 1-55221-009-X. p. 370
  4. ↑ Ramawad v. Canada (Minister of manpower and Immigration) 2 S.C.R. 375
  5. ↑ (1986) 4 SCC 326
  6. ↑ manupatra. "In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950". Manupatra.
  7. ↑ M'Intire v. Cunningham, 1 Yeates 363 (Pa. 1794).
  8. ↑ United States v. Sav. Bank, 104 U.S. 728 (1881); see also, J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 405-406 (U.S. 1928).
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