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spicuous, unfaltering exception to the constitutional tripartite division. 13

So it came about that we found ourselves applying administrative law to bodies which were historically, perhaps, executive, but which were analytically combinations of all three of our governmental functions. From this we must reason backward. If the procedure of the Interstate Commerce Commission in a proceeding to award reparation is an administrative problem - a proposition which is undisputed why is not the procedure of a police court, or a common-law court, or a court of equity? They are all questions of procedure to secure a stated end. If the method of

. conducting an immigration hearing is regulated by administrative law — and it doubtless is — why is not the procedure of a Senate committee gathering the ideas for coming legislation a similar administrative question? And so of contempt process, whether it be for refusal to testify before a court or a commission, or of any of five hundred instances.

Third. In many instances the differentiation of these three functions -- legislative, executive, judicial — is impossible, and instead of using a general governmental machinery,

specialized instruments are constructed. We have now the problem stated. Administrative law is, if the foregoing reasoning is sound, not a supplement to constitutional law.14 . It is a redivision of the various bodies of law which previously have been grouped under the head of constitutional law. That part of constitutional law relative to the functions of governmental bodies would, in its turn, form one part of administrative law as here sketched. Indeed, the difference between Goodnow's suggestion that administrative law supplements constitutional law and a use of “administrative law” as a name for the whole field, is not much more than a readjustment of nomenclature. The fact that the two forms of law are the same, and that the difference between them was the arbitrary one of the extent of a given document on the one side, or of unwritten law upon the other, is not seriously disputed.

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13 See Stephen A. Foster's discussion of this whole development in “Delegation of Legislative Power to Administrative Officers,” in 7 Ill. L. Rev. 397 et seq.

14 See ante, note 4, last paragraph.

There is, then, this field called administrative law. It concerns the machinery of transmission of governmental will from the point of its origin to the point of its application. In its application to such machinery it cannot be referred to any one division of government; it is applicable alike to courts, legislatures, and executive. This is the range within which we are working.

Having bounded our country, in some sense, the next problem is to explore it. Into what division does this expanded subject of administrative law fall? At what point does the constitutional law relating to government meet the administrative law which we have invertedly developed from the rules applicable to commissions and similar bodies?

The primary distinction is a simple one. Much of the governmental machinery is of general importance; it serves to transmit the will of the state upon the great majority of questions. Most statutes, for example, are enacted by Congress — the general medium for expressing popular will. They are enforced by the executive authorities -- the department of justice, the local police, and the like, who normally enforce all laws. They are interpreted by the courts whose regular function is to interpret such laws as Congress may enact. That is the usual, normal course of procedure; it is the general method of administration. But there arise problems which require peculiar and expert handling; a striking example is that of railway regulation. The popular will cannot be expressed by Congress, because the popular will does not discover a method. A result is wanted — better service and rates, freedom from discrimination and tyranny. No general body can reach that result: it takes an expert economist to formulate a rule. Accordingly we construct a special administrative body - a commission, like the Interstate Commerce Commission - and charge this body with the duty of investigating the problem and of laying down the rule which will reach the given result. The only expression of the popular will by Congress was the utterance of a desire to have an expert body solve a problem. Then the function of the general body — Congress

Congress — stopped, and that of the special body — the commission — began.

There is our first distinction. There are two sorts of administrative body - a general type, whose duty it is to carry on the main business of government, and a special type, whose

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duty it is to render expert service in some field calling for that service.

The special body may supplement the general body at any stage of the transmission of power. So it is possible to have a commission establish a rule which thereafter becomes a law like other statutes, and enforced by the general machinery. A few years ago 15 the uniform height of drawbars and hand-holds on freight cars was fixed by the American Railway Association in exactly this manner - an example of a special administrative body whose function was only within the narrow field of getting the popular will into tangible expression. Again, at the very bottom of the judicial administration of our penal law we find juvenile courts, which supplement in a specialized way the general machinery of police courts, in their particular field. The first example is of special administrative action at the very first stages of transmission of popular will; the second, at the very last stage. Instances might be multiplied each showing some different phase of this supplementation of general machinery by specialized instruments.

This brief distinction, moreover, gives us our first principle as to the nature of these special administrative bodies. They are bodies charged with the solution of a problem demanding expert treatment. They have no functions outside the field offered by this problem.

And the last and perhaps most important question here to be considered is the relation of these special administrative bodies commissions, bureaus, and such bodies — to the tripartite division of powers and functions, to all of which, as we concluded above, administrative law ought to be applied. The writer here contends that a special administrative body - one of those instruments created specially for use in a limited field - may, and often does, exercise all three of the usual trinity of powers. It may, of course, operate upon a problem which requires that only one or two such powers be brought into play; but it may use any two, or all three, in combination.

The statement of the proposition requires that we go a stage

15 Act of March 2, 1893 (The Safety Appliance Act), 27 Stat. AT L. 531, $ 5. The constitutionality of this was later upheld, over the contention of the railroads that this was a plain instance of delegation of legislative power. St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281 (1908).

further back in the argument. What of the doctrine that powers cannot constitutionally be delegated? What of the rigidity of the division of powers? The answer must be that those doctrines applied, and were intended to apply, only to the great organs of government — the general administrative bodies, as we have here rechristened them. The principle here submitted is, that where efficient solution of the problem requires a separate instrument, this instrument may (as commissions and the like continuously have been) be the recipient of delegated powers, and may use any or all of them together.

We pause once more upon the history of the matter. From a desire to fetter the old commissions there grew up a desire to uphold them if possible. The quick motive was a public clamor that something be accomplished in respect of certain affairs. The complementary idea was a realization that plenary power vested in a single body was the only hopeful way of getting that result. Notably in public utility matters this desire made itself felt. Here there was historical warrant for delegation of power. As long ago as 1691 justices of the peace had been required to fix maximum rates for carriers.16 In other matters Mr. Dicey has commented 17 on the impossibility of division of function where effective, expert action was required. In many cases the situation which calls this special instrument into being is made up of a group of closely related, highly complex problems; and to limit the commission, or whatever the instrument was called, other than by the nature of these problems was to bind it to uselessness.

to uselessness. Occasionally the method of attack could be prescribed; more often not. Usually the only hope is to turn a body of experts: loose on the question, instructing them to use their trained best judgment, their undoubted accessibility and consequent simplicity of procedure, and a wide range of powers designated in the statute creating the commission,

16

3 WILLIAM and MARY, C. 12, § 24, par. xxiv (9 STAT. AT L. 154). “And whereas divers waggoners and other carriers, by combinations amongst themselves, have raised the prices of carriage of goods in many places to excessive rates, to the great injury of trade; be it therefore enacted, by the authority aforesaid, That the justices of the peace of every county ... shall have power and authority and are hereby injoined and required, at their next respective quarter or general sessions after Easter day yearly, to assess and rate the prices of all land carriage of goods whatsoever. ..."

17 “Development of Administrative Law in England,” 31 L. QUART. REV. 148, 150-51.

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”;

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 o. 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).

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