Delegata potestas non potest delegari

In constitutional and administrative law, the principle delegata potestas non potest delegari (Latin) states 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] This principle is present in several jurisdictions such as that of the United States and the United Kingdom.

United States law

In United States law 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."^[2]

The maxim was first cited by the Supreme Court of the United States in United States v. Sav. Bank, 104 U.S. 728 (1881), where the case summary reports that one of the litigants argued that, "The duty imposed by statute on the commissioner cannot be delegated to a collector. Delegata potestas non potest delegari."^[3]

Catholic Canon law

Catholic Canon law (Title XIII) states:

Codex Iuris Canonici 137

§ 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.

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"^[4] and is still often cited,^[5] it has not achieved the rigid standing 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.^[6] Exceptions are rare and dependent on the statute conferring power.^[7][8]

References

1. ^ Mullan, D.J. (2001) Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. ISBN 1-55221-009-X. p. 368
2. ^ M'Intire v. Cunningham, 1 Yeates 363 (Pa. 1794).
3. ^ 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).
4. ^ Ibid
5. ^ Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12
6. ^ Mullan, Administrative Law, p. 368
7. ^ Ibid,p. 370
8. ^ Ramawad v. Canada (Minister of manpower and Immigration) 2 S.C.R. 375