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.

2 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.

23 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.

24 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). 28 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.

the governor and subordinate machinery in so far as its field extends. Any other rule would mean chaos. It would mean the possibility of conflicting decisions, of situations in which, whatever the unfortunate subject of state regulation did, he would be violating some command; it would violate the basic ideas of common sense which underly the whole intensely practical question of administrative law.

There, then, is the frame into which we must fit our study of an individual commission. It is one portion of a body of administrative law. That body deals with the functioning of the machinery which transmits governmental power from the source of its origin to the point where it is applied in the form of an effective, enforced, active rule. Such power may be transmitted through great, general conduits the usual governmental machinery. Much of that we study under constitutional law; too much of it we do not study at all. Or it may be transmitted in special conduits, reaching application through special instruments. The special conduit may branch from the main at any point. But after it has thus branched off, in its particular function it excludes the operation of the general device for transmission.

It is only at this last point that the subject of administrative law, as narrowly viewed, begins. But ought we not to endeavor to draw some general principles from the myriad monographs upon individual commissions and similar bodies? In a word, has there not been a real accumulation of precedent, from which we must derive the systematic body of law? Most important of all, can we continue to think upon the premise that any individual commission is, in its legal aspects, unrelated with the general government, or with other commissions?

Finally, cui bono? We have no right to follow academic northern lights if they lead to mere useless speculation. But we are using these administrative instruments. We are creating new ones. We are clutching, sometimes ill-advisedly, at them in an endeavor to use them to solve pressing problems. We are fearing them, lest they become tyrannous. It is necessary that each new body fall into some defined legal place. So alone shall we escape the dangerous and weakening period of floundering while business men, the administrative itself, and the courts solve what the sphere of the new