without technical checks. Further, it is often necessary that the results be uniformly applied. Railway rates are a striking example. It would have been intolerable for the situation to continue in which forty-eight state courts could each apply their idea of what was a reasonable rate. Neither the railway nor the shipper could endure the condition.

From such a situation it was necessary, first, that the commission have the power to make a rule. When it had used its expert knowledge, it had to put that decision into a form which compelled a solution; it had, in a word, to issue an order. But that is a legislative function. Then it had to see that these orders were uniformly applied: that one tribunal did not interpret them in one fashion, while another reached an exactly opposite application. Accordingly the commission had to dominate the general administrative bodies which applied the law, that is, take over part of the functions of courts. And though we wobbled in the matter of verbiage, and hedged about conclusions with nebulous distinctions, this is exactly what we have been doing.

For example, the Interstate Commerce Commission. Within a year after its creation the federal courts repudiated the idea that it was a court.18 Five years later it was said that the functions it exercised were "quasi-judicial"; 19 and the present method of stating the result is that the Commission has full authority to inquire into judicial matters.20 There was the clear development of the idea that judicial power had crept into the Commission's panoply. In its early history the courts suggested that general orders of the Commission could not have been contemplated by Congress because they were legislative.21 Congress intervened

18 Kentucky & I. Bridge Co. v. Louisville & Nashville R. Co., 37 Fed. 567 (1889), affirmed without opinion, 149 U. S. 777 (1892).

19 Interstate Commerce Commission v. Cincinnati, New Orleans, etc. Ry. Co., 64 Fed. 981, 982 (1894). "It has been held that the Interstate Commerce Commission is not a court. It is an administrative body. . . lawfully created, and lawfully exercising powers which are quasi-judicial.”

20 See Missouri, K. & T. R. Co. v. Interstate Commerce Commission, 164 Fed. 645 (1908), in which it was conceded that the Commission could inquire into judicial questions, though not to the exclusion of courts. And in Interstate Commerce Commission v. Cincinnati, New Orleans, etc. Ry. Co., 167 U. S. 479, 501 (1897), it was said: "The power given is partly judicial, partly executive and administrative, but not legislative." Cf. Nelson v. Bd. of Health, 186 Mass. 330, 335, 71 N. E. 693 (1904). 21 Texas & Pacific Ry. v. Interstate Commerce Commission, 162 U. S. 197 (1896).

before the courts had changed their way of thinking, and the present situation frankly arises from the fact that legislative power has been delegated.22 All the while, of course, it has never been questioned that the Commission had executive powers.

And there is the triad of power. But the Commission's own concept of its power is not without interest, especially in its later phases. A case arose in which the Pennsylvania Railroad had failed to supply enough tank cars for shippers' needs, and set up in excuse that it had not the cars to supply. It further contended that the Commission had no power to order it to provide cars. The Commission in reply conceded that it had only administrative power in the premises, meaning thereby (so far as one can judge from the much abused word "administrative") that it had judicial power to grant reparation-specific reparation, like a decree in equity, to be sure - but still nothing more than an individual decision of a case between individuals.23 But within a year, in passing upon a proceeding to compel reëstablishment of a joint rate, the opinion recited that "the establishment of a through route, like the fixing of a maximum rate for the future, is not a judicial act, but administrative or ministerial in furtherance of the function exercised by Congress. "24 The language implies, and it is now conceded, that rate fixing is a legislative function. There, then, is yet another of the three powers concealed beneath this word "administrative" a word which covers a body of powers wherein legislative and judicial capacities may be found. Yet this bit of history, applicable to the Interstate ComAnd see Interstate Commerce Commission v. Cincinnati, New Orleans, etc. Ry. Co., supra, note 20.

22 Louisville & Nashville R. Co. v. Interstate Commerce Commission, 184 Fed. 118, 122 (1910). A propos of rate fixing, the court said: "As has been pointed out in the opinions of the Supreme Court, the power thus defined is legislative in its nature; and it is well settled upon a long series of decisions by that court. . . that, when this legislative power concerns the administrative affairs of the government, it may be delegated to an officer or a board . . . created for that purpose." The subsequent reversal of the decision did not reflect in any degree upon this holding.

" Pennsylvania Paraffine Works v. Pennsylvania R. Co., 34 Int. Com. Rep. 179, 190 (1915). See also Excelsior Rates from St. Paul, 36 Int. Com. Rep. 349, 362.

4 Black & White River Transportation Co. v. Missouri Pacific Ry. Co., 37 Int. Com. Rep. 244, 248 (1915). The Commission in that same case refused to pass on the constitutionality of the Carmack Amendment, saying that this was for the courts alone.

merce Commission, might be repeated in the decisions concerning most of our great public service commissions; or indeed, for the matter of that, in the story of any similar body.

Since we have made this division into general and special administrative machinery, one confusion must be warded off before we leave the outlined distinction. The method of thought suggested involuntarily compels one to think along the line of administration, beginning with the laborious process of ascertaining the public will through a national election, through half-organized attempts to influence public opinion, through the more systematic program of legislative committee hearings, or through the most systematic method of a commission to investigate and recommend legislation; continuing, through the period of its enactment into some tangible form; of the statute, tossed into the hopper of executive and judicial machinery, to come out through some inferior police office as a full-fledged, effective, practicable rule, enforced instantly upon the community. And the instant query is at the bottom of this mill, is not every instrument a special administrative? A police officer does not do the same work as any other police officer. He is dealing with a concrete situation fitting a prohibitive law, for instance, to a given area. Why is not he of the same sort as a special commission?

The answer is, that though indeed he has a peculiar problem, it is not different in type from any other policeman's. He does not prohibit in the same place, and must to some degree fit his work to his community. But it is the same style of work. Further, he is the enforcing power behind every law. The next law of a general prohibitive nature will find him on his beat, putting the sanction of his night-stick and power of arrest behind it. In a word, he has not the blazing mark of a special administrative - a specialized field, calling for unusual, expert handling.

But the distinction may become nebulous. Quære, whether a traffic squad in New York City, under direction of the traffic division of the New York Police Office, is not a special administrative?

Nevertheless, we have our test. And it is not more difficult to apply than many similar tests in the common law. The distinction turns upon the limitation of the body under examination, to action with reference to a particular type of problem.

Fourth. A special administrative body, to the extent of its jurisdiction, excludes the operation of the general machinery in its field.

This is the last proposition we may examine in as brief a statement as this essay.

When a shipper sought to bring a proceeding to test the reasonableness of a rate in a federal court, without a previous adjudication by the Interstate Commerce Commission, that court declined jurisdiction upon the ground that the Interstate Commerce Commission was set to solve such problems, and that until such a solution had been obtained for review, no suit could be entertained.25

When under the Massachusetts Workmen's Compensation Act, a workman brings action for compensation, he must do so before the Industrial Accident Board. This is by statute; but there is every reason to believe the rule would have been developed without this.

When there is a dispute as to the ownership of patentable ideas, and interference proceedings are under consideration in the Patent Office, a court will not take jurisdiction until the Patent Office has handed down an opinion.26 And a court will not go into the question of patentability until the Patent Office has decided upon that question.27

In a famous and startling decision the very verge of this doctrine was reached when the United States Supreme Court conceded that, as immigration officers, with proceedings to determine whether citizens and others were properly admissible into the country, had specialized and specific knowledge in the field of determining whether persons entering the country from abroad could rightfully do so, courts could not pass upon the question at all.28 It is

25 Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (1906). And see Mitchell Coal & Coke Co. v. Penn. R. Co., 183 Fed. 908 (1911), aff'd 223 U. S. 733; Robinson v. Baltimore & Ohio R. Co., 222 U. S. 506 (1911); Baltimore & Ohio R. Co. v. U. S. ex rel. Pitcairn Coal Co., 215 U. S. 481 (1910).

26 Butler v. Ball, 28 Fed. 754 (1886), is the only case looking contra to this doctrine, and even this is not flatly opposed. See Standard Scale & Foundry Co. v. McDonald, 127 Fed. 709, 710 (1904): “It never was the mind of Congress that an inventor, without complying with the statutory scheme of submitting his claim to the Patent Office . . . could go into a United States court in the first instance to have determined the question of his right to a patent."

27 Continental Store Service Co. v. Clark, 100 N. Y. 365, 3 N. E. 335 (1885). 2 United States v. Ju Toy, 198 U. S. 253 (1905).

submitted that so far as this goes the reasoning is right. The ground where we may sharply differ in opinion is the decision as to the point at which the administrative field stopped. Doubtless Ju Toy's citizenship came within the field of the special administrative the immigration departmental officials in the first instance. But it does not follow that this special administrative branched off from the general body so far up in the transmission of power that the operation of it was not subject to corrective by the federal courts. The question, in any event, is upon the limit of the special administrative field.

In the Arlidge case 29 the English courts uniformly held that the question presented was one primarily for the special administrative and that the courts did not have the responsibility of deciding it.

These are all cases where the special administrative has excluded the courts from its field. The question instantly arises, How about the legislature? Does the Interstate Commerce Commission prevent Congress from prescribing a given rate in a given case? No. But if Congress does it, it has to that extent diminished the special administrative's statutory field. So far as that rate is concerned, the Commission has been destroyed. The Commission having been created by Congress may of course be annihilated by it. But the Commission and Congress cannot operate together in the same field.

Though the writer has not before him any case upon it, perhaps it is obvious that such an administrative body would exclude the action of an executive general instrument. Suppose after the Public Service Commission had prescribed a street-railway fare the governor of the commonwealth, or the mayor of the city or town where the railway lay, were to try to abrogate it. The absurdity of the case forecasts what a court would do to it. And its simplicity lies in this: a special administrative is always statutory or constitutional, like the rest of the executive machinery. In creating it, therefore, the legislature must have taken away the power of the executive to act. It has deprived the general executive of a part of its power.

And hence our proposition. Of necessity, a special administrative must exclude the general body the court, the legislature,

29 Local Government Board v. Arlidge, [1915] A. C. 120.