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the growth of the Court of Claims show how strictly the
courts hold to this rule. Not until the Court of Claims
had been made, in every essential, part of the judicial
system would the Supreme Court of the United States
entertain any appeal from it. How they stand now
upon that position is shown by In Ke Sanborn, 148
U. S. 222 (1893). One part of the functions of the
Court of Claims was defined as follows: that when any
claim or matter may be pending in any of the executive
departments which involves controverted questions of
law or fact, the head of such department, with the con-
sent of the claimant, may transmit the same to the Court
of Claims. When the facts and conclusions of law shall
have been found the court shall report its findings to the
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Ch. 3] ITS INDEPENDENCE. £ 23

department by which it was transmitted. In the pres-
ent case the claim of Sanborn had been sent from the
Department of Interior to the Court of Claims. The
court decided that Sanborn was not entitled to recover.
Thereupon, he made application to be allowed to appeal
to the Supreme Court of the United States, which was de-
nied.

This is not a judgment, said Mr. Justice Shiras:
Such a finding is not made obligatory upon the depart-
ment to which it was reported — certainly not so in terms
— and so far as we think by any necessary implication.
We regard the functions of the Court of Claims in such
a case as advisory only. The finding or conclusion
reached by that court is not enforceable by any process
of execution issuing from the court, nor is it made by
statute, the final indisputable basis of action either by
the department or by Congress. The application for
mandamus must accordingly be denied.

The doctrine at the bottom of these decisions is cer-
tainly of a fundamental importance in any conception
of the proper distribution of the powers of government.
In these particular instances of it the principles are
these: the position given to the judiciary department
to pass in first instance upon a matter which should later
be passed upon in second instance by the executive de-
partment was contrary to the constitution in that this
process involved the subordination of the judiciary de-
partment in this determination, whereas by the con-
stitution all of the three departments must be co-or-
dinate. From another approach also this legislation
was open to constitutional objection : the power of grant-
ing pensions was in its nature an administrative power,

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£ 24 ADMINISTRATIVE LAW. [Ch. 3

since it involved the execution of law; not a judicial
power properly, since it did not involve litigation be-
tween man and man; it would be therefore contrary to
the constitution to force powers not judicial upon the
judiciary. Which comes to this: that under our con-
stitution confusion of powers may not be permitted.
If a principle like that is once admitted it must be of
universal application. 1 8

§ 24. Confusion.

The rule of distribution of functions will always be
violated if in the apportionment of powers to an ad-
ministrative body, powers belonging to any other de-
partment are given. For one instance, suppose that an
administrative body is given legislative power. That is
the case, it seems, in Ex parte Cox. 63 Cal. 21 (1883).
The petitioner was convicted of a misdemeanor, the vio-
lation of a rule and regulation of a Board of State Agri-
cultural Commissioners. The act establishing that com-
mission declared it had power to enforce rules and regu-
lations in the nature of quarantine to govern the manner
of and prohibit the importation into the state of vines or
cuttings infected or likely to cause infection. The pris-
oner had violated some regulation to which the board had
attached a penalty. The court ordered his discharge;

i s Distribution. — Hayburn's Case, 2 Dall. 409; Gordon v. U. S.
2 Wall. 561; U. S. v. Alire. 6 Wall. 573; In Re Sanborn, 148 IT. S.
222; Hempstead v. Underbill's Heirs, 20 Ark. 337: Ex parte Allis. 12
Ark. 101; Ex parte Shrader. 33 Cal. 279; McAVhorter v. Pensacola R.
R., 24 Fla. 417; Chicago, etc., R. R. v. Jones, 149 111. 361: Portland.
etc.. R. R. v. Grand, etc., R. R., 46 Me. 69; Dow v. Wakefield. 103
Mass. 267; Andrews v. Judge of Probate. 74 Mich. 278: Pacific Exp.
Co. v. Cornell, 59 Neb. 364; Atlantic, etc., Co. v. Wilmington, etc.. R.
R., Ill N. C. 463.

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<^h. 3| ITS INDEPENDENCE. § 24

they said: For the purpose of local legislation, legis-
lative functions may be delegated. But the legislature
had not authority to confer upon the board the power
of declaring what acts should constitute a misdemeanor.
The legislative power is vested in the legislature; it
cannot be attempted to confer that power upon any
officers of the executive department.

As a second instance, suppose an administrative body
is given a power which it is plain is judicial. Whether
that can be is discussed in Interstate Commerce Com-
mission v. Brlmson, 154 U. S. 447 (1894). The petition
in this case was based on the twelfth section of the act
authorizing the Interstate Commerce Commission to
invoke the aid of any court of the United States in re-
quiring the attendance and testimony of witnesses, and
the production of documents, books, and papers. The
Circuit ( Ymrt held the. provision unconstitutional and
void as involving a confusion of the powers of govern-
ment, giving to an administrative commission the aid
of judicial process, and forcing upon the judiciary func-
tions not judicial. The question was whether this was
forbidden by the constitution, without which obviously
effective enforcement of the interstate commerce laws
could not be effected.

Mr. Justice Harlan recited the provisions of the in-
terstate commerce law at great length; he continued:
As the constitution extends the judicial power of the
United States to all cases in law and equity, the fun-
damental inquiry upon this appeal is whether the pres-
ent proceeding is a case or controversy within the mean-
ing of the constitution. It was clearly competent for
Congress to invest the commission with authority to

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g 24 ADMINISTRATIVE LAW. [£h. 3

require the attendance and testimony of witnesses, and
the production of books, papers, tariffs, contracts, agree-
ments, and documents relating to any matter committed
to that body for investigation. We do not understand
that any of these propositions are disputed in this case.
The constitutionality of this provision, assuming it To
be applicable to a matter that may legally be intrusted
to an administrative body for investigation is, we re-
peat, not disputed, and is beyond dispute. They are is-
sues between the United States and those who seek to ob-
struct the enforcement of its laws; it thus conies with-
in the judicial power.

This preliminary view of the whole field cannot but
establish as a working hypothesis this general rule
against the confusion of powers as an elementary doc-
trine of constitutional law under our system. If this be
proved true in entirety for every case that is fairly with-
in its inhibition the consequence in administration will
be of the first importance. It will result that the ex-
ecutive department must always be independent of the
other departments in its proper sphere; more than that,
that all administration must be handed over to tie
executive department. Of course, it must not be for-
gotten in the application of this principle that the
business of government is a practical matter, not to
be too much hampered by the application of some gen
eral principle where there is an unsubstantial depart-
ure involved in any case. Every scope must be given
in the creation of governmental agencies and in the
organization of them. The proper place for this prin-
ciple, it is submitted, is in reserve, to be invoked when-
ever a substantial departure from the fundamental prin-
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Ch. 3] IT S INDEPENDENCE. § 25

ciple is involved. The cases discussed in this section
indicate in a general way what may be done and what
may not be done. What may not be enacted is overt
confusion of powers — the giving of a legislative func-
tion to the administration. What may be provided is
some co-operation between the departments — the lend-
ing to the administration of the process of the courts.
This, it is suggested, is the solution of this problem
in accordance with constitutional law under our sys-
tem of government with its three departments — inde-
pendence with inter-relation. 19

§ 25. Conclusion.

In a previous discussion a rule was laid down for
the position of the administration with two branches.
That for action as an individual the officer might be
impleaded in the courts as a private wrongdoer; but
that for action as an official the officer might not be
impleaded. The present discussion of the independ-
ence of the administration does not conflict with that.
Action of an official as a representative of the execu-
tive department the judiciary department can take no
cognizance of, still less can it enter upon review upon
any appeal; but for individual action without author-
ity of his position the officer may be proceeded against
in the courts more or less as any wrongdoer. This is

i9 Confusion.— La Abra Co. v. United States, 175 U. S. 423;
Western Union Tel. Co. v. Henderson, 68 Fed. 588; Ex Parte Allen,
26 Ark. 9; Ex Parte Cox, 63 Cal. 21; State v. Johnson, 30 Fla. 499;
People v. Kipley, 171 111. 44; Shoultz v. McPheeters, 79 Ind. 373;
In Re Sims, 54 Kan. 1; Speed v. Crawford, 3 Mete. (Ky.) 207; Hart-
ford Insurance Co. v. Raymond, 70 Mich. 485; State v. Hathaway,
115 Mo. 36; Thorp v. Woolman, 1 Mont. 168; Turner v. Althaus,
6 Neb. 54; Taylor v. Place, 4 R. I. 338; Gough v. Dorsey, 27 Wis. 119.

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Adm. Law — 7.



§ 25 ADMINISTRATIVE LAW. [<jh. 3

the solution in the administrative law of the United
States again, the distinction between the two capacities
of the official, as an officer and as a man. As an officer
the official stands with his department and may claim
its immunity; as a man he stands in the same place
as other men. That is certainly, when all is said, the
characteristic of the administrative law under our sys-
tem, that these capacities are never in any material
way to be confused. And the consequence is a free
government, acting within its discretion, and a free peo-
ple, protected in all their rights. This is the peculiar
distinction of our system of administrative law.
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CHAPTER IV.

THE POWERS OF ADMINISTRATION.

§ 26. Introduction.

27. Political Powers.

28. Foreign.

29. Interior.

30. Governmental Powers.

31. Domestic.

32. Colonial.

33. Conclusion.

§ 26. Introduction.

The functions of the administration are of two sorts.
To put the distinction in the more usual terms, these are :
its executive functions and its administrative functions.
The administration in truth has this double aspect;
but these functions are in one sense interdependent.
In the pursuance of its executive functions, the admin-
istration exercises inherent powers; while in its ad-
ministrative functions, it perforins derivative duties.
In an extended discussion of this situation it may be
said that the executive functions are powers, while the
administrative functions are duties; but in truth in
each case there is power and duty both.

Executive powers, then, are inherent, because the
basis of them is the constitution itself. In the exercise
of executive powers the executive is upon the same basis
as the legislative or judiciary. The action of all of
these alike is the expression of the will of the state.
In such acts the executive is the head of the state; he

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§ 26 ADMINISTRATIVE LAW. [Ch. 4

conducts foreign negotiations; he leads armies; he
grants amnesty; he promulgates proclamations. Exec-
utive powers are primary; in every such action the
executive acts of his own motion, makes his own de-
cisions, draws his own conclusions, enforces his own
decrees. As it is this aspect of the administration that
one is prone to think of when comparing the functions
of this department with the legislative department and
with the judiciary department, the department is in
most discussion denominated the executive department.
Administrative duties are derivative. The direction
of these functions is to the enforcement of the laws;
the laws must therefore precede the exercise of these
functions. There must be law for enforcement before
there can be administration; the functions of the legis-
lature, therefore, must be first exercised, these in turn
creating duties for the administration to perform. Ad-
ministrative functions, then, are secondary in a way.
since the duty is to enforce a general law made and
provided in a particular case. Enforcement of the law
may then be conceived of as itself obedience to the com-
mand of the law. But the command of the law is not
often absolute; it is in the usual case conditional, so
that the officer has an independent position in his dis-
cretion.

Such is the distinction between executive powers and
administrative duties which is proposed as the basis
for discussion. And yet, after all, it may prove that
the distinction between these two does not go to the
bottom; at bottom they may be alike in essentials. In
pursuance of administrative functions, the department
may well require the position of an executive. More
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Ch. 4] POWERS OP ADMINISTRATION. g 27

than this, in seeing the laws faithfully executed the
head of the department may prove in truth an execu-
tive. At all events the administration in the exercise
of executive and administrative powers together pre-
sents a certain unity to the observer, as if the business
of the administration were all one, after all, however
difficult it may be to explain this.

§ 27. Political powers.

One of the highest powers of the executive is seen in
the determination of political questions. It may be
well to give several instances of the exercise of such
powers; since in no other line of cases is the position
of the executive so well established. One of the earlier
decisions upon this question is Foster v. Xeilson, 2
Pet. 253 (1829). This case arose under the eighth
article of the treaty between the United States and
Spain in 1818, which provided for the determination
of private rights. It was a suit brought to recover a
tract of land to the east of the Mississippi, claiming
upon a grant made by the Spanish government in 1801.
The exception involved the defense that the grant was
void; upon the ground that the territory in question
at the time of the grant belonged to the United States,
not to Spain. How should such an issue be determined?

The opinion in this case has weight in a constitutional
discussion, as it is by Chief Justice Marshall. The
question presented is, to whom did the country between
the Iberville and Perdido rightfully belong when the
title now asserted was acquired. The question has been
repeatedly discussed by the government of the United
States with that of Spain. In a controversy between
two nations concerning national boundaries it is scarcely

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g 27 ADMINISTRATIVE LAW. [Ch. 4

possible that the courts of either should refuse to abide
by the measures adopted by its own government. The
judiciary is not that department of the government
to which the assertion of its interest against foreign
powers is confided. Its duty is to decide upon indi-
vidual rights according to those principles which the
political departments of the nation have established.
A question respecting the boundaries of nations is more
a political than a legal question ; and in its discussion
the courts of other countries must respect the will of
the political departments. Another decision would sub-
vert those principles which govern the relations be-
tween the departments and mark the limits of each.
The separation of powers, it is to be noted, is said to
be at the bottom of this doctrine and the consequence
is therefore established — the independence of the de-
partment.

An amplification of this doctrine is seen in such cases
as Williams v. Suffolk Insurance Company, 13 Pet. 415
(1839). The schooner Harriet, insured for a sealing
voyage, was ordered by the government at Buenos Ayres
not to catch seal off the Falkland Islands. The master
refused to abandon the enterprise in response to these
threats upon the ground that the islands were not sub-
ject to the jurisdiction of that government. The re-
sult was that the vessels were captured and condemned
by the Buenos Ayres authorities. When suit was later
brought upon the policies, which covered any loss what-
ever, the underwriters tried to make out a defense based
upon the circumstances detailed.

The court would not go into evidence to determine
what state had sovereignty over the islands ; it informed
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Ch. 4] POWERS OF ADMINISTRATION. § 37

itself by inquiry what position the executive department
had taken. Mr. Justice McLean upon this report stated
the conclusion of the court; he said: The American
government has insisted, through its regular executive
authority, that the Falkland Islands do not constitute
any part of the dominions within the sovereignty of
the government of Buenos Ayres. There cannot be any
doubt that when the executive branch of the govern-
ment which is charged with our foreign relations shall
in its correspondence with the foreign nations assume
a fact in regard to the sovereignty of any island or coun-
try, it is conclusive on the judicial department. In this
view it is not material to inquire, it is not the province
of the court to determine, whether the executive be right
or wrong; it is enough to know that in the exercise of
his constitutional function he has decided the question.
Having shown this under the responsibility which be-
longs to him, it is obligatory on the government; and
we think in the present case, as the executive has viewed
the jurisdiction, the fact must be taken and acted on
by this court as thus asserted and maintained. The
decision of the first point materially affects the second,
which turns on the conduct of the master, who held
that he was not appointed to decide but might law-
fully stand on his right against all governments not hav-
ing jurisdiction. The underwriters are therefore not
discharged. This decision without doubt expresses the
general law upon this whole question. 20

-"Political Powers. — Nabob v. East India Co., 1 Ves. Jr. 37,5;
Sullivan v. Earl Spencer, Ir. R. 6 C. L. 173; Foster v. Neilson,
2 Pet. 307; Luther v. Borden, 7 How. 39; Mississippi v. Johnson,
4 Wall. 500; Georgia v. Stanton, 6 Wall. 77; Jones v. United States,
137 U. S. 212; In Re Cooper, 143 U. S. 503; Quackenbush v. United

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£ 28 ADMINISTRATIVE LAW. |Xh. 4

1 28. Foreign.

The question of the recognition of the independence
of states just decided must, it would seem, settle all
questions as to the recognition of belligerency in states;
since the greater must include the less. However, it
mav be well to cite one leading case in this matter of
belligerency, since at times the problem has prominence.
A case always mentioned at such times is United States
v. Palmer, 3 Wheat. 610 (1818). This case was cer-
tified from the Circuit Court upon division of opinion
as to the rights of belligerent cruisers of an unrecog-
nized community; whether captures of the same con-
stitute piracy. For, of course, unless the bare facts
could be qualified by some doctrines of the law of war,
the acts were acts of pirates.

In the course of the discussion of this case Chief
Justice Marshall said: Questions which respect the
rights of a part of a foreign empire which asserts and
is contending for independence are generally rather
political than legal in that character. They belong
more properly to those who can declare what the law
shall be, and who control the political designs of the
nation. The proceedings in the court must depend upon

States, 177 U. S. 25; Taylor v. Beckham, 178 U. S. 578; Latham
v. Clark. 25 Ark. 574; Haley v. Clark, 26 Ala. 439; In re Archy. 9
Cal. 147; Land Co. v. Routt, 17 Colo. 156; State v. Bulkeley, 61 Conn.
287; McWhorter v. Pensaeola R. Co., 24 Fla. 417; Hilliard v. Connel-
ly, 7 Ga. 179; People v. Supervisors, 100 111. 495; State v. Hyde. 121
Ind. 20; State v. Wagner, 61 Me. 178; Larcom v. Olin, 160 Mass. 102;
Chamberlain v. Sibley, 4 Minn. 309; People v. Hurlbut, 24 Mich. 63;
Morton v. Green, 2 Neb. 441; Thompson v. Canal Fund Com'rs. 2
Abb. Prac. 248; State v. Chase, 5 Oh. St. 528; Taylor v. Place, 4 R..
I. 338; State v. McMillan, 52 S. C. 69: Druecker v. Salomon. 21 Wis.
621.

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Ch. 4] POWERS OF ADMINISTRATION. ^ 28

the course of the government, therefore the courts can-
not condemn when the attitude of the government is
declared. And so this is to be held no piracy. The
courts of the Union must view any newly constituted
government as it is viewed by the legislative and execu-
tive departments of the government of the United States.
If the government remains neutral, the courts of the
Union cannot consider as criminal those acts of hostil-
ity which the war authorizes.

Upon the same basis, the executive in all international
negotiations must have entire independence. This is
shown in the long litigation in regard to the La Abra
award, in which again and again it was attempted to
bring the action of the department under the review
of the judiciary. The most important of the cases is
United States v. Blaine, 139 U. S. 306 (1891). The
act of June 18, 1878, subjected specifically the pay-
ment of the Weil and La Abra awards, under the
Mexican Claims Commission, to the control of the
President. One Boynton sought mandamus in the
Supreme Court of the District of Columbia against
Blaine, then Secretary of State, for a mandamus to
compel him to pay the petitioner as assignee of the
Weil claim. The Secretary set up the plea that the
President had forbidden the payment; that he held it
as agent of the President; that the matter fell exclu-
sively within the powers and competency of the Presi-
dent ; and that the Secretary as subordinate to him
and subject to his direction and control, was in nowise
subject to the jurisdiction and competency of the ju-
dicial department of the government of the United
States. That as it would involve an interference by

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£ 28 ADMINISTRATIVE LAW. [Ch. 4

the said judicial department with a matter which was
exclusively committed by the constitution to its co-
ordinate, the executive, department, the court should
therefore take no cognizance of the matter of the re-
lator's petition.

Chief Justice Fuller disposed of the case in this
wise : The writ of mandamus cannot issue in a case
where its effect is to direct or control the head of an
executive department in the discharge of an executive
duty, involving* the exercise of judgment or discretion.
In view of these settled principles, could the relator be
entitled to his writ? International arbitration must
always proceed on the highest principles of national
honor and integrity. (Maims presented and evidence
submitted to such an arbitration must necessarily bear
the impress of entire good faith. No technical rules
of pleading, as applied to judicial courts, ought ever to
be allowed to stand in the way of national power to
do what is right under all circumstances. Every citi-
zen who asks the intervention of his own government
against another must necessarily subject himself and
his claim to these requirements of international comity.
This is a consequence of the political trust with which
every government is charged with respect to its own
citizens. The act of Congress cannot undertake to set
any new limits on the powers of the executive. From
beginning to end it is in form, even, only a request
from Congress to the executive. It is far from making
the President for the time being a quasi tribunal. So
long as the political branch of the government had
not lost its control over the subject matters by final
action, the claimant was not in position, as between
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Ch. 4] POWERS OF ADMINISTRATION. §28

himself and the government, to insist on the conclu-
siveness of the award as to him. On the contrary the
control was expressly reserved and made the duty of
the President. The writ of mandamus cannot issue
in a case where its effect is to direct or control the
head of an executive department in the discharge of
an executive duty involving the exercise of judgment
and discretion. The political department has no doubt



Online LibraryBruce WymanThe principles of the administrative law governing the relations of public officers → online text (page 8 of 44)