Printer, and that official should assign it a definite number and print it in a series, all in the same type and general style, including all rules and regulations. At the end of each calendar year, the rules and regulations so published should be gathered together in a bound volume or volumes, arranged systematically, with a complete index and proper tables showing the effect of the rules and regulations issued during the year on the statutes and on other regulations. So far as rules and regulations are of an interpretative nature, the requirement of prompt publication would seem to be a reasonably adequate safeguard to the public. But where a rule or regulation establishes or defines a criminal offense or provides for a penalty, there should be a provision under which such a rule or regulation would not be effective until actually published.

Considerations of some difficulty are encountered in the obvious fact that all rules and regulations cannot feasibly be published. Many of them are of purely private concern, as for instance, Executive Orders exempting an individual from the civil service acts or allowing an individual to remain in the government employ after the retirement age. Other regulations relate solely to the internal administration of the government departments. There is no need to make these public, and it is appropriate that many of them should not be. With respect to so-called "local" regulations, however, this is not wholly true. Any regulation which might affect the public as such, or any considerable body of it, should be published, even though it is not of general concern.43

The proper selection of rules and regulations for publication can be more readily left to administrative action than to exact definition in the statute. The English Act gives the authority to make rules on this question to the Treasury with the concurrence of the Lord Chancellor and the Speaker of the House of Commons; but if a legislative officer were given such authority in this country, there might be some

Unless the rules as published are given consecutive whole numbers there is no way of knowing whether all of them are present. Under the present chaotic system, Executive Orders are sometimes given numbers which contain fractions, and other Executive Orders are given no numbers at all. See HART, op. cit. supra note 28, at 318. If a new scheme of publication were adopted, it would seem desirable to eliminate this difficulty by an express provision.

42 If a uniform system of publication for rules and regulations were adopted, there should be no more need for proving them in evidence in any litigation than there is for offering statutes in evidence. And to prevent filling the pages of records with such material, it should be made plain that courts may take judicial notice of the officially printed copies of statutory rules and regulations. The Supreme Court takes such notice now. Caha v. United States, 152 U.S. 211 (1894); Thornton v. United States, 271 U.S. 414 (1926). But the practice in the lower courts is far from uniform. Cf. Sprinkle v. United States, 141 Fed. 811, 819 (C.C.A. 4th, 1905) (Internal Revenue Regulations noticed); Nagle v. United States, 145 Fed. 302 (C.C.A. 2d, 1906) (Postal Regulations not noticed). In the last case the court used language strangely pertinent here: "No department ever sends its compilation of regulations to the judges. They are frequently amended, and without special information from the department, no one can tell whether a particular regulation in some printed compilation was in force a year later. . . . It is a hopeless task for an appellate court to determine what such regulations were at any particular time." Id. at 306.

43 Failure to publish local rules has been criticized in England. See Macassey, supra note 31, at 75. And it would appear to be desirable not to provide for any exemption for local regulations here, except for regulations relating exclusively to territories, insular possessions, or the District of Columbia.

question of an unconstitutional interference with the separation of powers. Such power might better be given to the Secretary of State and the Attorney General, acting with the approval of the President. The Secretary of State now has charge of publishing the statutes; the Attorney General's concern is obvious. And approval of the regulations by the President would be appropriate because of the great importance of the subject matter.45

An important question is the agency to be charged with the actual publication of the series of rules and regulations. The statutes are now published under the supervision of the Department of State. Other possible agencies would include the Department of Justice or the Library of Congress. In view, however, of the fact that speed of publication would be a very important element in the scheme and that the Public Printer is in direct charge of the establishment where the rules and regulations would be printed, it would seem that he would be the official who could supervise the publication most efficiently. If the task were given to the Department of Justice, that department might have a tendency to undertake to revise the content of the rules and regulations. This would be undesirable both because it would delay the publication and because the Department of Justice is often called upon to advise the other departments with respect to the administration of rules and regulations after they have been promulgated. The Department of Justice should be left free to act in its traditional semi-judicial capacity in such cases. The Department of State would not be likely to provide that prompt publication which would be so necessary to the effective working of the scheme, while the Library of Congress is primarily fitted to be a repository and to conduct research rather than to act as the supervisor of a current publication.

Finally, the adoption of a scheme of publication for the future would solve only part of the problem. There would still remain the great mass of regulations in force when the new system went into effect. Provision should therefore be made for the compilation of a comprehensive collection of all such regulations. The preparation of such a compilation might well be entrusted to the Library of Congress. That organization has recently produced an admirable index of the federal statutes, and it could be expected to handle the difficult task of gathering together all past rules and regulations in a wholly satisfactory manner.17

46

A complete index of all rules and regulations in force should also be published at frequent intervals. Such an index should include references not only to the regulations themselves but also to the statutory authority under which the regulations are made. The index now pub

It is assumed that the regulations prescribed in England would be a useful model. See STATUTORY RULES AND ORDERS (1894) No. 734, published also in Garr, DELEGATED LEGISLATION 59-61, and REPORT OF THE COMMITTEE ON MINISTERS' POWERS 120-21.

46 MCCLENON AND GILBERT, INDEX TO THE FEDERAL STATUTES (1933).

* Two editions of the compilation of statutory rules and orders have been published in England. The first, in eight volumes, included the rules and orders in effect prior to 1890. The second, in thirteen volumes, was published in 1904, with the title STATUTORY RULES AND ORDERS REVISED TO DECEMBER 31, 1903. In this edition each title was paged separately so that it could be separately sold.

lished at three-year intervals in England 48 furnishes a useful model for a similar publication here.

In order to suggest more specifically the form in which this project might be carried out there is included in an Appendix a draft of a bill to provide for the publication of rules and regulations. This draft is of course wholly tentative and is merely designed to indicate some of the provisions which might be included in such an enactment. There are obviously many other points which merit consideration,19 but such a draft as this may serve to focus attention on the problem and to provide some sort of a basis for formulating a solution. It seems highly desirable that if such a project is put into effect it be done by statute, and not, as has been suggested elsewhere, by an Executive Order. It is very unlikely that any permanent solution of the problem could be achieved through a publication set up by administrative action. During the War, an "Official Bulletin" was established by executive authority. But this was by no means complete, no provision was made for its continuance, and few people today remember its existence. This is also true of a private publication of the same period.50 There appears every likelihood that any such publication set up by executive action today

would meet a similar fate.

Certainly it cannot be denied that the need for putting order into our administrative material is very great. It seems equally certain that the institution of some regular and systematic scheme of publication provides a simple, inexpensive, and wholly effective means of solving the problem. Until some such measure is adopted, it may well be said that our government is not wholly free from Bentham's censure of the tyrant who punishes men "for disobedience to laws or orders which he had kept them from the knowledge of".

48 INDEX TO THE STATUTORY RULES AND ORDERS IN FORCE ON JUNE 30, 1933 SHOWING THE STATUTORY POWERS UNDER WHICH THEY ARE MADE (13th ed. 1933). 49 Among these are the following: (1) Provision should be made for an appropriation to carry the act into effect. It is not, however, customary to include the appropriation in the enabling act itself. It will doubtless be desirable to handle the question by including an annual item in the appropriation for the Government Printing Office.

(2) It might be desirable to include in the statute an express provision for the free distribution of the statutory rules and regulations in their various forms to government officers. This might be done by providing that distribution should be made to the officers and agencies to whom pamphlet copies of the statutes are distributed under § 195 of Title 44 of the United States Code, and in the quantities provided in that section.

50 LAPP, FEDERAL RULES AND REGULATIONS (1918).

APPENDIX

An ACT To provide for the uniform publication of rules and regulations.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Sec. 1. This Act may be cited as the "Statutory Rules and Regulations Publication Act, 1935".

Sec. 2. As used in this Act

The term "statutory rules and regulations" means

(a) Proclamations by the President;

(b) all Executive Orders by the President, including all instances of the exercise by the President of any power conferred on him by statute;

(c) all rules and regulations, by whatever name called, promulgated by any executive department, administration, independent establishment, board, commission, official, group of officials or other rule-making authority; and

(d) all other rules, regulations or orders, by whatever name called, made directly or indirectly under the expressed or implied authority of any act of Congress.

The term "rule-making authority" includes every authority authorized to make any statutory rules and regulations.

Sec. 3. (a) All statutory rules and regulations made after the effective date of this Act shall forthwith after they are made be sent to the Public Printer, and shall, in accordance with regulations made by the Secretary of State and the Attorney General, with the approval of the President, be numbered in consecutive whole numbers (the numbers to start anew annually), and, except as provided by the regulations, printed and sold by him.

(b) Regulations made under the authority of this section may provide for the different treatment of statutory rules and regulations which are of the nature of public acts, and of those which are of the nature of personal or private acts; and may determine the classes of cases in which the exercise of a statutory power by any rule-making authority relates solely to the internal administration of an agency of the government; and may provide for the exemption from this section of any such classes; except that no regulation shall be made dispensing with the requirement that any statutory rule or regulation subject to the provisions of Section 8 of this Act shall be printed. Regulations made under this section may provide that statutory rules and regulations relating exclusively to territories, insular possessions, or the District of Columbia, shall not be published, or may be published in a separate series. Regulations made under this section may also provide for the separate publication of all statutory rules and regulations relating exclusively to the Patent Office.

Sec. 4. Any statutory rules and regulations may, without prejudice to any other mode of citation, be cited by the number assigned to them as provided in Section 3(a), together with the calendar year. Printed copies of statutory rules and regulations bearing the imprint of the Government Printing Office, shall be the subject of judicial notice in all the courts of the United States, and of the several states, territories, and possessions.

Sec. 5. (a) The provisions of this Act shall also be applicable to all rules and general orders of courts of the United States, whether issued pursuant to an authority granted by an act of Congress or not. The clerk of any court promulgating any such rules or orders shall send them forthwith to the Public Printer who shall assign to them their appropriate number in the annual series of statutory rules and regulations and shall print and sell them. All such rules and general orders of courts shall be included in the compilations and indices to be prepared under Sections 6 and 7 of this Act.

(b) The regulations made under Section 3 of this Act may provide that the requirement of printing contained in this Section shall not be applicable to the rules of District Courts.

Sec. 6. At the close of each calendar year, the Public Printer, under regulations made as provided in Section 3(b) of this Act, shall have compiled and printed a compilation of the statutory rules and regulations, and rules and general orders of courts, for that year, together with a complete index and appropriate tables. There shall be included in this annual volume a list by number and title of all statutory rules and regulations which, pursuant to the regulations aforesaid, are not printed in full. The annual volume provided for by this Section shall be made available to the public by the first of March of the following year.

Sec. 7. The Librarian of Congress is authorized and directed to have compiled and published at the Government Printing Office a complete collection of all statutory rules and regulations and rules and general orders of courts which are in force at the date this Act takes effect. This compilation shall be printed in a style which is uniform with the annual volumes of statutory rules and regulations to be published as provided in Section 6 of this Act. In making and publishing this compilation, the Librarian of Congress may in his discretion omit any statutory rules and regulations and any rules and general orders of courts which are of the classes which need not be printed under the regulations established under Sections 3 (b) and 5(b) of this Act.

Sec. 8. No statutory rule or regulation establishing an offense or defining an act which pursuant to an act of Congress is punishable as a crime (whether a petty offense, misdemeanor or felony), or subject to a penalty, shall be valid and effective until published as provided in Section 3 of this Act.

Sec. 9. The twenty-fifth paragraph of Section 73 of the Act of January 12, 1895, c. 23, 28 STAT. 601, 615 (U.S.C., Title 1, Sec. 30), is amended by striking out the word "proclamations". So much of the Act of July 31, 1876, c. 246, 19 STAT. 102, 105 (U.S.C., Title 44, Sec. 321), as requires the publication of procla mations in a newspaper is repealed.

Sec. 10. Nothing in this Act shall affect the validity or effect of any statutory rules or regulations which are in effect or have been in effect prior to the effective date of this Act.

Sec. 11. This Act shall take effect two months following its enactment. The regulations provided for in Section 3 of this Act shall be established prior to such effective date.