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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
6 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,” ? 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
7 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."
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 powers" - - 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 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.
9 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."
A man whose name is writ large in the history of governmental railway regulation, John H. Reagan, was a member of that commission. At the suit of one of the carriers involved in an order made by it, enforcement of the orders of this body was enjoined by a federal court; and Reagan, for the commission, prosecuted his appeal. The issue was joined upon delegation of power. Brewer, J., in sustaining the commission, said:
“There can be no doubt of the general power of a State to regulate the fares and freights which may be charged and received by railroad or other carriers, and that this regulation can be carried on by means of a commission. Such a commission is merely an administrative body created by the state for carrying into effect the will of the state, as expressed by its legislation.” 10 (Italics ours.)
Again the concept of transmission of power. And on the next page the court fearlessly asserted that fixing a maximum railway rate was a legislative matter." Yet the power was sustained. In this and other cases, 12 where it was argued that administrative bodies were objectionable as having both judicial and legislative as well as executive powers, they were upheld, although it was conceded that such an absorption of power actually had taken place.
The history of the matter was, that hostility to the new users of old powers — commissions and their like — had changed to a desire to uphold, if possible, the constitution of these new bodies. It was felt that while there may be, generically, three kinds of power, there may be no fundamental need for the separation of them. Men who had studied the question from an old-fashioned point of view approached the question with perhaps the greatest frankness. Mr. Dicey especially recognized that certain sorts of businesses could be handled only through some agency endowed with plenary powers, or, in American constitutional phraseology, that necessity justified limited delegation of legislative and judicial powers to specialized bodies. And behind all this was the unexplained, outstanding phenomenon of the municipal corporation exercising cheerfully all of our three divided powers - a bare, con
10 Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 394 (1893). 11 Ibid., 395-96.
12 See The Railroad Commission Cases, 116 U. S. 307 (1886), and cases there cited. The view is the more striking because it was adopted by a court which, besides being conservative, required above all other things close-knit, logical reasoning.