THE ADMINISTRATIVE LAW OF THE UNITED

TH

STATES.1

HE publication of a book upon the administrative law of the United States, particularly when that book appears under the title Administrative Law, is a sufficiently noteworthy event to justify, if not to demand, extended comment. Such comment is particularly necessary when the book comes from the pen of a member of the Harvard Faculty of Law, which has not heretofore shown an active interest in the study of public law except in so far as that law has been studied in close connection with the protection of private rights. The appearance under such auspices of a thoroughly legal book on the subject of administrative law is evidence of the fact that there is an administrative law in the United States which is sufficiently important to demand treatment from those who are responsible for the instruction of students who intend to become practising lawyers.

Mr. Wyman's book arouses in the mind of the reader mingled feelings of admiration, gratitude and regret: admiration for the way in which most of the work has been done and gratitude for the vast mass of information which has been made accessible to the students of the distinctly legal side of administration; regret that the author should have so narrow a conception of his subject and that a certain lack of political insight or an ignorance of fundamental principles of political science should have befogged his mind in treating subjects which, to be treated successfully, must be set forth with clearness.

The book seems to be based upon the theory that there can be no administrative law where there is not a thoroughly centralized administration a hierarchy of superior and inferior officials in which the superior officials have the right to direct and supervise the actions of those inferior to them. Administrative law is defined as consisting "of those rules which govern the executive department in the administration of the law." It will be noticed that this definition does not include the law governing all the officers who are to execute the law, but only the law governing the executive department. This use of the words "executive department" is obviously deliberate; for the whole

1 The Principles of the Administrative Law governing the relations of Public Officers. By Bruce Wyman, of the Faculty of Law in Harvard University. St. Paul, Minnesota Keefe-Davidson Co., 1903. — x, 641 pp.

treatment of the subject seems to be based on the theory of the separation of powers a theory which indeed has an important influence on the position of the different departments of government, but which does not affect the position of any administrative officer except the chief executive. Thus, in the chapter on The Position of the Administration, it is said:

No action of the administration as an administration is subject to the inquiry of the law; since the administration in the execution of its functions is conceived as the representative of the state with the immunities of the state itself [p. 24]. . . . That the state is not responsible, as an elementary principle has many applications in the practical administration of the law. . . . The consequence most noteworthy of all in this for administrative law must be apparent to any observer of these conditions. The administration has a free hand to work out its own devices; but the administrative officer has no freedom of action, except action within the law. Since the administration is irresponsible the officer must be responsible [p. 31].

The position taken by our author is of course an advance upon that taken by Mr. Dicey, who says, in his Law of the Constitution, that the scheme of so-called administrative law is opposed to all English ideas. In fact, Mr. Wyman repudiates, and properly repudiates, the Dicey doctrine when he says:

Political science is a universal science. However diverse in its manifestations, governmental power is the same in last analysis. Accordingly there is no power exercised in any government which is not to be found in some form or other in every government. In every government there must be a department charged with the enforcement of the law. In the law of every state, therefore, there must be a body of rules in relation to the action of that department. In that sense, at least, there must be an administrative law in the law of every state [p. 3].

For the rather grudging recognition of administrative law thus made, all students of the subject ought, of course, to be thankful; but no one who believes that the boundaries of administrative law are as wide as is the function of executing the law can refrain from protesting against the view that administrative law deals merely with what is known under our system as the executive department; and no one who has this belief can refrain from stating his objections to the narrower view.

To begin with, if we are to adopt our author's conception of administrative law, we must admit that administrative law is either non

existent in our state systems of public law, or that it governs merely the relations of the executive department which, on account of the general character of the state administrative system, are comparatively unimportant. For, as Mr. Wyman shows in an admirable comparison. of the federal and state systems, while we have a highly centralized administrative system in the federal government, we have a very decentralized administrative system in the states. Does the fact that the administrative system of the states is decentralized make it unnecessary that the state governments shall exercise some of the powers which the federal government exercises? If the state governments must in the nature of things exercise those powers, does the fact that the system of administration is decentralized deprive the rules of law governing the exercise of those powers of their character as rules of administrative law?

Further, the insistence upon the irresponsibility of the administration, which is derived from our theory of the separation of powers and which, under other systems of public law, is not by any means one of its necessary attributes, tends to produce serious error when we come to consider the position of the administration in a decentralized administrative system. Thus, for example, it is the universal rule of our state law that certain of the authorities provided for the execution of the law and for the discharge of what are called administrative functions are incorporated; and this is done for the purpose of depriving the administration, in so far as its organs are incorporated, of its attribute of irresponsibility. Counties, towns, cities and school districts are all made corporations, liable to suits based on contract and sometimes to suits based on the tortious acts of corporate officers. Neither the legislatures nor the courts permit the principle of the separation of powers to be made use of to accord to a host of state administrative authorities a position of legal irresponsibility. Indeed it has been held quite commonly that the principle of the separation of powers does not govern the relations of the local administrative authorities in the states. Mr. Wyman's narrow conception of administrative law vitiates also some of his conclusions on the position of administrative authorities, using the words in what would seem to be their proper sense. Thus he regards as bad law a decision of the Supreme Court of the United States in the case of United States vs. Duell, 172 U.S. 576. In this the court held constitutional a statute giving an appeal on the merits from a decision of the commissioner of patents to the court of appeals of the District of Columbia, instead of to the secretary of the interior. Our author says:

It may well be asked with respect: How can there be a more flagrant example of the subordination of one of the great departments to another than is seen in this case, where a judicial court is put over an administrative office, where the action of an executive body is subjected to the revision of a judicial body; for what else can this process of appeal amount to? If this be allowed in this case it is difficult to see why it must not be permitted in every case. And the end of a series of statutes might be to make the chief justice and the associate justices of the United States pass upon the propriety of every action of the president and cabinet of the United States a reductio ad absurdum [p. 84].

Such reasoning as this is based upon a conception of the position of the administration which would seem to be quite foreign to our administrative history and custom. Originally, before the federal administration had become so centralized as now, one of the common means of determining customs cases, for example, was by suit against the collector of the customs, upon which mixed questions of law and fact, decided in the first instance by the collector, were submitted to the courts acting with a jury. Again, the administrative law of the states has been in the past, and is now, full of instances where questions of this character, when decided by administrative officers, are subject to judicial review. Take, for example, the jurisdiction of the courts over the subject of nuisances. The courts have the right in some instances, in both direct and collateral actions, to review the determinations of administrative officers that certain concrete conditions constitute a nuisance. In the state of New York, as well as in other states, provision is made by statute that the determination of tax assessors as to the value of property assessed by them shall be subject to judicial review; and in the state of New York a general provision of the code of civil procedure gives to the courts the power, on writ of certiorari, to quash the determinations of administrative officers not merely because they are contrary to law, but also because they are opposed to the preponderance of evidence.

In a word, the conception of the irresponsibility of the administration is really foreign to our law except as regards the executive head of the government, i.e., in the case of the federal government, the president, and in the case of the state government, the governor. Acts of the lower authorities have in various ways, sometimes as the result of positive statute, sometimes as the result of judicial decision, been made subject to the revisory power of the courts. The fear that the recognition of the power of Congress to subject to the control of the courts decisions of inferior administrative officers will result in giving to the

courts the power to pass on the propriety of every action of the president and his cabinet is a reductio ad absurdum, but not in the sense in which Mr. Wyman uses these words.

But while one cannot help regretting that Mr. Wyman has so narrow a conception of the extent of administrative law, one cannot but be grateful to him for the thoroughness with which he has done the work he set out to do. Nowhere is there to be found so exhaustive a collection of the decisions of the courts, attorneys-general and heads of the various departments with regard to the powers and duties of the administrative officers of the federal government. Furthermore, much more has been done than merely to collect the cases. There is not only, at the end of each section, a long list of cases bearing upon the subject under discussion, but, where a case is regarded as important, the text sets forth at length the facts and a large part of the opinion. The book is therefore to some extent available for the same purposes as a collection of selected cases.

One must also feel gratitude to Mr. Wyman for his admirable exposition (in the chapters on the powers, the duties, the membership, the organization and the theory of the administration) of the characteristics of the administrative system to which attention is primarily directed. Particularly to be noticed is the chapter on The Theory of Administration. Herein is set forth, in all its legal aspects, the theory of the centralized administrative system of the federal government. Attention is called to the necessity, in such a system, of recognizing that the superior officers may delegate the exercise of their powers to their subordinates. Court decisions, opinions of attorneys-general, decisions of heads of departments and circulars of instructions are all marshalled to show how, owing to the recognition of this principle, "centralism" as the author calls it, does its work.

As a matter of practical government the performance of centralized administration seems prodigious. The secret of the success is system. System in the subordination of officers inferior to superior; system in the coordination of officers of the same grade for division of labor. The subordination is necessary, so that all may be overseen from step to step. The result in administration is the possibility of immediate action. Whatever any superior wishes done, he may command it done with definiteness by the most remote inferior. Matters of routine are done at the bottom; only where they involve extraordinary action are they referred to the top; and yet in each case the theory is preserved that all action proceeds from the top. The matters of routine are done by every officer of the same grade n coördiniation. The principle is