one of them may institute proceedings in the courts and become prosecutor and judge in the same case. Congress voted, in 1898, the payment over to the President of $50,000,000, and under the power of administrative law he expended it in his own discretion without any check whatever. Under this power of administration in 1899, the Secretary of War sent troops into the state of Idaho, without even the petition of the state authorities; martial law was declared by the War Department, the writ of habeas corpus was suspended, not by the state authorities but by the general in command of the army, and without any warrant whatever he arrested hundreds of men and carried on government by his own will. Mr. Root, at a New York University Law School Banquet, described administrative law under his direction, as Secretary of War, as follows: "It has been my province during the last four years and a half to deal with arbitrary government. It has been necessary for me not only to make laws and pronounce judgment without any occasion for discussion except in as far as I would choose to weigh the questions involved in my own mind affecting ten million people. And not only to make laws and pronounce judgment, but to execute judgment with overwhelming force and great swiftness." Under this administrative law the Philippine Commission on June 1, 1903, by Section 6 of an act numbered 781 of the Philippine Commission, provided for the very same kind of reconcentration of the native population for which we drove Weyler and his Spaniards out of Cuba.1 Under administrative law the Secretary of the Interior, by executive order in 1904, decreed that all persons who had served in the army or navy of the United States and had reached the age of sixty-two years, should be presumed to have incurred such disabilities as to entitle them to receive pensions under the Act of Congress approved June 27, 1890. It is under this power that the Interstate Commerce Commission is about to impose rates of traffic upon 200,000 miles of railway in the United States. It is under this administrative power that Secretary Shaw of the Treasury suspended the duties upon importations of coal; accepted, as believed by many, without legal authority, other securities than national bonds to secure the issues of national bank notes; deposited the surplus of the Treasury with national banks in the amount of many millions of dollars, and used all the powers at his disposal to protect and further the interests of these national banks. It is under this administrative power that in all the states of the Union hundreds of commissions are taking the control by license and otherwise of the affairs of men, many of which are not public in their nature. In the case of the People ex rel. Lodes against the Department of Health, of New York City, Mr. Justice Gaynor, of the 1 1 North American Review, Jan. 18, 1957; Blount, Philippine Independence, p. 145. Supreme Court of New York, speaking of this condition, says: "Those who meditate a recourse to arbitrary power for a good purpose should pause to consider the consequences, for it is a vice which brings in its train all the vices and especially the detestable vices of official extortion and blackmail. Good men in good times should beware of setting bad precedents for bad men in bad times. The sale of impure milk or other food is bad, but far worse, and fraught with far greater evils, would be the growing exercise by executive officials of powers not conferred on them by law. If they were suffered to require licenses for the ordinary occupations of life, and refuse them to whom they willed, how long would it be before such licenses would be sold for money or for political favor or partisan fidelity?" Commissions of this kind, censors of all kinds, restrictive government, multiplication of penal laws, all these methods have been the methods of arbitrary governments. There is not a step in the decay of the Roman Republic and of the Empire which is not marked by a large amount of just such legislation as I have been describing. The endless repetition of legal commands is the unerring sign of impotence and decadence. It is important to appreciate whither this administrative government is leading. It differs materially from administrative government in France and other European countries. In all these countries all relations between administrative officers and the citizens, growing out of the official duties of those officers, are regulated entirely in administrative courts. The citizen of France is forbade from the bringing of any action against any administrative officer for an official act without the consent of the French Council of State. This does not apply to acts committed by officials not in the exercise of their authority, as, for instance, where the act is a personal fault or a malicious use of lawful powers. But for all other administrative acts of any name or nature the citizen has no recourse against the official committing the wrongful act under claim of authority, except in an administrative court, where there is scarcely hope of redress.2 These administrative courts are conducted by administrative officials with rules of procedure peculiar to themselves, and with no provision of trial by jury. Will administrative law bring us to the same unfortunate condition? In Prussia the only remedy of the citizen against an official for a wrong, in the supposed execution of his duty, is to appeal to the authority who supervises the action of that official, or to bring an action before the administrative courts against the official or officials whose conduct is challenged. By reason of this fact a considerable part of all the litigation in Continental Europe is carried on before 1 117 App. Div. 865. 2 Dicey, The Law of the Constitution, chap. xii. administrative courts dependent upon the head of the state,1 and therefore likely to be safe guardians of the rights of officials. The administrative courts in European countries resent with indignation any attempt on the part of the regular law courts to interfere with their jurisdiction over administrative officials. There are no strictly technical administrative courts in this country or in England. The public official is liable before our common-law courts for all his torts and wrongs, even though claiming to have performed them in his official capacity. If a board of health wrongfully has declared the property of a citizen to be a nuisance and destroyed it, they are liable in most of the states, at least for damages, in case it was not a nuisance. If they revoke the license of a milk dealer, without a hearing, and for a cause not prescribed by the laws or their written regulations, they are liable, and an equity court will enjoin their action. It may be true that in some cases the official can protect himself by a process which is regular upon its face, but in such a case his superior who issues the process, if void, is liable. These commissioners will come, by and by, to believe that extraordinary powers belong to them; that they can prohibit a legitimate business by refusing to license it, entirely overlooking the fact that they are given the power to regulate business and not to prohibit it. The President, a few days ago, took away the license of a Mississippi steamboat pilot. It will not be many years, if existing conditions prevail, before the national government, through commissions, will be licensing every locomotive engineer and conductor engaged in interstate commerce, and will be licensing every state corporation doing an interstate business. These licenses will be revocable at the will of the President or the head of the Department of Commerce, and hundreds of thousands, if not millions, of men, and all of the corporate interests of the country, will be at the mercy of the national government. So long as these commissions are allowed to exercise judicial and legislative powers, without the right of review on the part of the regular courts, the citizen's rights are in danger. There is to-day no menace to his rights so great as administrative decisions. Our English ancestors three centuries ago escaped from the administrative courts of England. Let us beware of the danger of returning in our day to that kind of arbitrary government. 856. 1 Lowell, Governments and Parties in Cont. Europe, Vol. II, pp. 83, 195. 2 People ex rel. Lodes vs. Department of Health of the State of New York, 117 App. Div. VIII EXCERPTS FROM TESTIMONY GIVEN AT THE HEARINGS BEFORE THE COMMITTEE ON INTERSTATE COMMERCE OF THE UNITED STATES SENATE, INVESTIGATING THE DESIRABILITY OF CHANGING THE LAWS REGULATING AND CONTROL LING CORPORATIONS, PERSONS, AND FIRMS ENGAGED IN INTERSTATE COMMERCE.1 A LETTER FROM THE COMMISSIONER OF CORPORATIONS, MR. HERBERT KNOX SMITH 2 Hon. Francis G. Newlands United States Senate, Washington Dear Senator: Your letter of the 2d instant was received, raising certain questions on the bill for an interstate trade commission (S. 2941) introduced by you. . . . Taking up your questions in order: (1) "Shall an interstate trade commission be organized?" If the work is to be simply that of investigation and publicity my experience would indicate that an organization under a single head would be decidedly more efficient. For purely executive or administrative action such form of organization is preferable. If, however, judicial or semijudicial powers are to be exercised the commission form has important advantages; it is better adapted for judicial decision, its judicial rulings would probably carry more weight, and, in any event, it tends to secure stability, continuity of policy, and greater independence of action. (2) "Shall the Bureau of Corporations be merged in the commission?" NOTE. All references in this Section are to the Report of Hearings Before the Committee of Interstate Commerce, United States Senate. Sixty-Second Congress, 1911-12. Pursuant to Senate Resolution 98. If the interstate trade commission is to exercise substantially the powers now used by the Bureau of Corporations it seems almost necessary that the bureau should be merged in that commission, as the bureau would have little reason for further separate existence. There is also, however, the very important consideration that the bureau is very necessary to the commission; the bureau is the one unit in the Government service which can immediately supply the experience, trained force, knowledge, and traditions which the commission must have for its work. (3) "Shall the test of the applicability of the acts to corporations engaged in interstate trade be the annual gross receipts, or the character of the business in which the corporations are engaged-namely, the production of great staple articles?" The question here is a debatable one, but experience with corporate business leads me to doubt the feasibility of a classification based on kinds of business or staple commodities. Such lines of demarcation are too vague. For example, certain companies deal wholly in the manufacture of lumber, others in its sale, others in the manufacture of goods primarily made out of other materials but having a certain proportion of lumber. Similarly with the steel industry and many others. It would be almost impossible to draw the line in many cases so as to say whether a corporation was engaged in a given industry or not. Many great wholesale houses sell a large amount of hardware. Would they be included, for example, as engaged in the steel industry? (4) "Shall the power of the commission be confined to investigation and inquest, requirement of statements and publicity, and recommendation to the President and to Congress?" "If not, shall the additional requirement of registration be made with the accompanying power of denying or canceling registration for certain prescribed offenses or for violation of the regulations of the commission; and shall the punishment of a recalcitrant corporation be confined simply to a cancellation of registration?" Investigation, publicity, and recommendation should be in any event parts of the system. Personally, I favor strongly registration of corporations with power of cancellation. This gives a very practical means of control, which at the same time has the great advantage that it does not actually attempt the positive regulation of business. It allows credit for proper business conduct and imposes discredit for the reverse, but assumes no power of direction and simply leaves the public to apply corrective pressure through public opinion and the investment of the public's money. Answering also the last part of the question, it is probably better for the present to provide cancellation of registration as the only penalty for improper business conduct. I feel entirely satisfied that |