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are quasi-judicial"; 3 and instances might be multiplied of similar contradictions. The confusion seems to be upon the subject of administrative power or function. There is little or no dispute either as to what constitutes an administrative body or as to the nature of administrative law. It seems to be assumed that the one is an executive arm of the government creating it and that the other deals with the safeguarding of private rights from such executive, and with the protection of such officials in fulfilling their task. To the first idea we owe a fear, rapidly growing in the public mind and not unknown even to legal thought (as Mr. Dicey's comment upon the Arlidge case revealed), that expansion of governmental activity along these lines means bureaucracy; and to the second, that the law may not supply the protection which political activity, as we know from bitter experience, does not afford.
There is a long and fascinating history connected with these conceptions, which is here outlined. Curiously, the relation of it
• Interstate Commerce Commission v. Cincinnati, New Orleans, etc. Ry. Co., 64 Fed. 981, 982 (1894).
• ERNST FREUND, CASES ON ADMINISTRATIVE Law, Introduction, 3: “The chief concern of administrative law (as contrasted with political science), on the other hand, as of all other branches of civil law, is the protection of private rights, and its subjectmatter is therefore the nature and mode of exercise of administrative power and the system of relief against administrative action.”
1 GOODNOW, COMPARATIVE ADMINISTRATIVE LAW, 7-8: “Administrative law is that part of the law which governs the relations of the executive and administrative authorities of the government”; which deals with the organization of these administrative bodies and the like, and which supplements thereby constitutional law.
And again, GOODNOW, PRINCIPLES OF ADMINISTRATIVE LAW IN THE UNITED STATES, 12: “Further, the adoption of the principle of the separation of powers, which was made theoretically a part of American public law, has done much to make the executive or administrative authorities, generally, independent of the legislative authority.” (Italics ours.) It will be noted no distinction is made between executive and administrative action. The corollary proposition is stated ibid., at page 15: “Authorities mainly political control administration; and authorities mainly administrative influence politics.” The writer believes this theory unduly narrows the field.
6 A. V. Dicey, “Development of Administrative Law in England,” 31 L. QUART. REV. 148, é propos of Local Government Board v. Arlidge, (1915) A. C. 120, establishing that a department required to exercise judicial functions need not adopt the procedure of courts.
"It may lead to the result,” he writes at page 151, “that a government department which is authorized by statute to exercise a judicial or quasi-judicial authority may, or rather must, exercise it in accordance, not with the procedure of the law courts, but with the rules which are found to be fair and convenient in the transaction of the business with which the department is officially concerned.”
anticipates in some measure the argument for revising the form which these ideas take. However the theory of division of powers may stand as a philosophical proposition, it is firmly ingrafted into American law, primarily by constitutional provisions, and secondarily and more effectively by five generations' habit of legal reasoning. A law which pertained to all officials, of any sort, was feared as containing the possibility of creation of a privileged class. It was believed that the effect of continental administrative law, whose strongest advocate was Napoleon, had been exactly this. It is only within the past few years that M. Léon Duguit, feeling at length the injustice of this assumption, took up his pen to defend the French administrative courts. Transfer of power to bodies which were responsible primarily to the political branch of the government was jealously scanned by the courts. Often it was prevented altogether by a rigid application of the doctrine of division of powers.
Consequently in the early creation of commissions, as their structure was obviously not that of courts (this is a late development, this enactment that commissions shall be "courts of record”), and could not constitutionally be that of legislative bodies, the only possible branch of government to relate them to was the executive. They were therefore regarded as executive arms. Every act attempted by them, every solution of the problems set before them, had to justify itself in the courts as an exercise of executive function. It is elementary law that courts will not attempt to control the coördinate branches of the government save (substantially) where their action results in confiscation or fails to accord with constitutional and statutory requirements. Therefore in self-defense these bodies tried to assimilate their growing power of application of governmental desire to private persons and property, to the executive or political branch of the state.
Then came a second stage, which we shall review more carefully hereafter. It was not possible to assimilate all the new powers to the executive branch. Courts began to talk of “quasi
• Léon Duguit, “French Administrative Courts,” 29 Pol. Sci. QUART. 385. “To foreigners, and particularly to Anglo-Saxons, who are inclined to assume that the individual can be protected against the administration only by giving wide competence and strong organization to the ordinary courts of justice, the foregoing statements (i.e., that France has unusually efficient protection against arbitrary administrative action) may seem paradoxical.”
judicial” and “quasi-legislative” functions. They began to be astute to escape the fancied limitation of prohibited delegation of power. In a word, they began to break down the dividing walls between the three powers.
We have, in approaching this problem, that best of all testimony, the quiet observation of a stranger to our system. A book which passed almost unnoticed in this field, because it was never translated into English, attacked the British administrative problem from a continental angle. In his “Englische Verwaltungsrecht, "7 Dr. Rudolf Gneist attempted to follow the English administrative system as he conceived it. It began with an expression of will at its source — the king - and the elaborate governmental machinery served to carry that will to its point of application the people — and there make it effective and operative. He divided this machinery into two classes: Royal Prerogatives, which began and ended with the king's command; and special administrative departments -- Privy Council; Treasury; State Secretaries and their subdivided departments; Parliament and subsidiary boards; courts of common law; of Chancery, with more specialized jurisdiction; the Established Church; and the Royal Court. All of these, he contended, were means whereby the royal will was brought through various stages into contact with the people whom it was meant to affect.
Now this opens the entire working of the state to the realm of administrative law. It challenges our whole narrow alignment of administrative problems. It suggests an illustration from practical life. The administrative machinery - the whole government, under this view — is not unlike the machinery which is used in mechanics to transmit power, from its motor source, to the point where it is brought into contact with the raw material requiring its application. In America the motive power is the popular will. The first step in its transmission is its expression in some authoritative way by legislative enactment or (even before the enactment) by political choice of officers, after a campaign in which some idea of the popular will is gathered. Thereafter the normal machinery for transmission is the system of regularly constituted governmental
? DR. RUDOLF GNEIST, ENGLISCHE VERWALTUNGSRECHT, 2 vols., Berlin, 1863; second edition, 1867; third, 1871. Though this was widely read in Germany and France, it seems to have escaped the notice of common-law students completely.
agencies — the legislature, to express and make definite and tangible the popular idea; the executive, to express and make definite the enforcement of it and to apply it to the subject calling forth the expression; the judiciary, to limit the executive and to some extent the legislature to the confines of the expressed popular will. This is all administrative work. This is all administrative machinery. For it is submitted there can be no difference between the carrying from expression to action of an ordinary criminal or civil statute, and a similar transmission of a regulative statute with regard to some peculiar problem. The machinery may differ: the former goes through district attorneys' offices and police stations, to municipal courts and common jails; the latter passes from a commission sitting in banc to a single examiner, and through him to a chief of an engineering division or the like. We do not doubt that the latter is administrative in function and that the law applicable to it is administrative law. Is there any logical difference between this and the former commoner process?
Indeed, the proposition abroad would be no novelty. In France this is a well-known movement in juristic thought. It was Laferrière who, in his "Droit Administratif,” summed up this matter:
“To govern is to oversee the functioning of the public authorities, to assure the execution of the laws, to carry on relations with foreign powers; to administer is to assure the daily application of the laws and to watch over the relations of the citizens with the public authorities and the relations between the different administrative ('executive' would be a better translation) authorities." 8
There is the distinction. Government has to do with setting the popular will to work; to supply the personal guarantee that the machinery will do its part, to supply even the cogs and belts in the general machinery. Administration is the process of manufacture, if we may call it so. Administrative law is the law which keeps the process in motion in an orderly manner. It is the body of law, then, which governs the transmission of the active power, seeing that it does not waste itself in vain efforts to solve problems,
4 LAFERRIÈRE, DROIT ADMINISTRATIF, 600. I have taken the translation by J. W. Garner in his “Judicial Control of Administrative Acts in France," 9 Am. POL. Sci. Rev. 653 (1915). I prefer the translation “executive” to “administrative," because the sense of the passage seems to require it. “Administrative" merely reopens the verbal question once more.
seeing that it results in some effective end, seeing that it does not go amiss and commit some grievous wrong.
Second. This transmission involves all the so-called "three
legislative, executive, and judicial. The mind of a common-law lawyer, more especially in America, operates slowly on this sort of concept. What becomes, under it, of our tripartite division? What of our elaborate body of constitutional law?
The answer is, that in matters affecting the particular administrative bodies - commissions, bureaus, and the like -- which formed our point of departure, we demand no tripartite division. We exercise all three functions - executive, judicial, legislative with effectiveness and success. And we find no need of a division in the general rules of law applicable to the various functions, though, indeed, some division of them reappears. In his discussion of commission regulation of public utilities o it was Freund who said that the commissions no longer served as mere instruments of a fully expressed legislative will, but took some part in the expression of it. One passage is especially striking:
"The evolution has been rather from generic legislation to administrative power to carry such legislation by specific requirements. . . What is this but the transmission of public will through a commission without the expressed will as a preceding step, that is, the absorption, by an administrative body, of a function essentially legislative? Mr. McCall, in opposing the passage of the Hepburn bills on the floor of the House of Representatives, said they would make the commission “a little Congress and a little Court.” The Supreme Court in its most conservative days gave a pronouncement which fairly supported the view, apart from its merits as an objection. In 1891 Texas established a railway commission, with power to make rates, regulate charges and practices, correct tariff abuses, prevent unjust discrimination, and the like.
• Ernst Freund, “Substitution of Rule for Discretion,” 9 Am. Pol. Sci. REV. 666. “These commissions have indeed been vested with powers of a type hitherto withheld from administrative authorities under our system, powers which are not intended to serve as instruments of a fully expressed legislative will, but which are to aid the legislature in defining requirements that on the statute appear merely as general principles."