Digitized by the Internet Archive .in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/comparativeadminOOgoodrich By FRANK J. GOODNOW Eaton Professor of Administrative Law and Municipal Science in Columbia University Comparative Administrative Law An Analysis of the Administrative Systems, National and Local, of the United States, England, France, and Germany Student's Edition Two Vols, in One Octavo - Net, $3.00 The Principles of the Adminis- trative Law of the United States Octavo - - - - Net, $3.00 Q. P. Putnam's Sons New York London Comparative Administrative Law AN ANALYSIS OF THE ADMINISTRATIVE SYSTEMS NATIONAL AND LOCAL, OF THE UNITED STATES, ENGLAND, FRANCE AND GERMANY BY FRANK J. GOODNOW, A.M., LL.B. PROFESSOR OF ADMINISTRATIVE LAW IN THE UNIVERSITY FACULTY OF POLITICAL SCIENCE, COLUMBIA COLLEGE IN THE CITY OF NEW YORK STUDENTS EDITION TWO VOLUMES IN ONE ^ or THE \ UNIVERSITY OF G. P. pOtnam's sons NEW YORK AND LONDON 1903 •^30^ o COPYRIGHT, 1893 BY FRANK J. GOODNOW Entered at Stationers' Hall, London By G. p. Putnam's Sons Ube *nicfceri)ocftcr pre6», "Rew Kotk PREFACE. It will be well perhaps to explain the purpose of the book which is herewith submitted to the public. For it is necessary, in order to do justice to all con- cerned, that the author apprise his readers at the out- set that he has not attempted to treat exhaustively of the entire domain of administrative law. His inten- tion has been rather to set forth, in the first place, the methods of administrative organization adopted in the four countries whose law is considered, namely, the United States, England, France, and Germany, and to state, in the second place, somewhat in detail, the means of holding this organization up to its work, and of pre- venting it from encroaching on those rights which have been guaranteed to the individual by the constitution or laws. The treatment of this control over the ad- ministration has made it necessary to include a summary of the forms and methods of administrative action ; for without an understanding of them an adequate con- ception of the control over the administration would be impossible of attainment. This particular portion of the work is confessedly the least complete, but the author considers this incompleteness a virtue rather than a fault, if he has been able, as he hopes he has, in the few pages devoted to this matter, to make it iv PREFACE. clear to his readers, in what manner the administration acts, and even to suggest in this or in the other portions of the work the directions of the action of the admin- istration. A detailed consideration of the directions of administrative action, as well as of its methods, is, it is true, a necessity for the practising lawyer. It would, however, be of slight interest if not a positive disad- vantage to the beginner in the study of administrative law ; while the general reader, for whose use this work is also intended, would probably be deterred by the magnitude of the work presented by such a considera- tion from entering upon the study of administrative law at all. This study the author naturally considers to be of the greatest importance. The great problems of modern public law are almost exclusively adminis- trative in character. While the age that has passed was one of constitutional, the present age is one of ad- ministrative reform. Our modern complex social con- ditions are making enormous demands of the adminis- trative side of the government, demands which will not be satisfied at all or which will be inadequately met, unless a greater knowledge of administrative law and science is possessed by our legislators and moulders of opinion. This knowledge can be obtained only by study, and by comparison of our own with foreign ad- ministrative methods. It is in the hope of pointing out the way to future students in this subject that the following pages have been written. The needs of the legal practitioner have been met elsewhere by excellent treatises on the most important branches of administra- tive law, such as that of Judge Dillon on The Law of Municipal Corporations, that of Judge Cooley on The Law of Taxation, and that of Mr. Mechem on The Law PREFACE. V of Officers, on which the author has placed great reli- ance. The details of foreign law also may be found in excellent treatises, either French or German, to which continual references have been made in the text. Fi- nally the book has been written with the end in view of supplementing the work done by Professor John W. Burgess in his Political Science and Comparati/ve Con- stitutional Law. For this reason as well as owing to the lack of space, all matters of a distinctively consti- tutional character have been omitted, and the student has been referred to Professor Burgess' work. It is only where a comprehension of administrative subjects has absolutely required a knowledge of their constitu- tional foundations that the author has ventured to treat even in the most cursory manner of constitutional questions. It is only fair to add also that the work was begun by first studying with considerable care books on foreign administrative law. This was necessary, owing to the complete lack of any work in the English language on administrative law as a whole, and was possible and profitable owing to the richness of the literature of foreign administrative law. After a method of treatment had thus been obtained, the attempt was made to apply it to American law. American conditions necessitated numerous and im- portant modifications of this method of treatment, but the author is conscious of the fact that a foreign point of view will often be noticed, a fact for which, how- ever, he does not consider an apology necessary. For in the present stage of the study it is to foreign writers that we must look for all scientific presentations of the subject. vi PREFACE. The author deems it necessary to acknowledge how much he is indebted to the published works and per- sonal influence felt in lectures he has heard, of Professor Rudolph von Gneist, of the University of Berlin, Ger- many. Great reliance has been placed also on the excellent work, contained in the Introduction to the Local Constitutional History of the United States, of Professor Howard, of Leland Stanford, Jr., University, California, whose conclusions have been in most cases accepted without question, and re-stated in the text. He desires also to express his indebtedness to the many friends from whom he has received most helpful sug- gestions, and particularly to Professors John W. Burgess and Edwin R. A. Seligman of Columbia Col- lege, and to Doctor Ernst Freund of the New York Bar, who have read either all or parts of what he has written. The author finally desires to call the atten- tion of his readers to the fact that in all of the cross references made in the text, the first volume is to be understood unless the number of the volume is given. Trusting that an indulgent public will pardon those errors which will creep in, notwithstanding the greatest care, he submits witli hesitation a work on a new subject, and hopes that what he has done will at any rate have the effect of inducing others to study what has been of the greatest interest to him and what he believes all interested in social problems should know something about. Frank J. Goodnow. Columbia College, September ist, 1893. COMPARATIVE ADMINISTRATIVE LAW FRANK J. GOODNOW I ORGANIZATION / b^ H, COMPARATIVE ADMINISTRATIVE LAW. TABLE OF CONTENTS. I Volume I. Organization. ' BOOK I. THE SEPARATION OF POWERS. CHAPTER I ADMINISTRATION. PAGB I. Administration as a function of government . . . i il. The administration as an organization . . 4 CHAPTER II. ADMINISTRATIVE LAW. I. Definition 6 II. Necessity of separate treatment 9 III. Distinction of administrative law from private law .... 14 rV. Distinction of administrative law from other branches of public law, 15 CHAPTER III. THE THEORY OF THE REPARATION OF POWERS. CHAPTER IV. EXCEPTIONS TO THE THEORY OF THE ' SEPARATION OF POWERS. I. Executive functions of the legislature 25 II. Legislative functions of the executive authority .... 26 III. Executive functions of the judicial authorities 39 CHAPTER V. THE RELATION OF THE EXECUTIVE TO THF OTHER AUTHORITIES. I. Relation to the legislature 31 1. The legislature the regulator of the administration ... 31 2. The control of the legislature over the administration . .33 n. Relation to the courts ' . 34 . I. Political acts .......... 34 2. Legislative acts 35 3. Contractual acts . . . , . .3? 4. Administrative acts of special application "^ 35 lU. The position of the executive 37 ix J f I X COI^TENTS. CHAPTER VI. TERRITORIAL DISTRIBUTION OF ADMINIS- TRATIVE FUNCTIONS. I. Participation of the localities in administration .... 98 II. The English method 41 III. The continental method 43 IV. The sphere of central administration 4} BOOK II. CENTRAL ADMINISTRATION. Division I. The Exkcutive Power and the CHnr Executive Authority. CHAPTER I. IN GENERAL. CHAPTER II. HISTORY OF THE EXECUTIVE AUTHORITY AND POWER IN THE UNITED STATES. I. The executive power in New York at the time of the formation of the national constitution • • • S3 II. The executive power in Massachusetts 96 III. The executive power in Virginia .0 rV. The American conception of the executive power in 1787 . 99 V. History of the executive power in the early national government ^ 6t I. Original position of the President 6t a. Change due to the power of removal 64 3. The power of direction 66 CHAPTER III. THE ORGANIZATION OF THE CHIEF EXECU- TIVE AUTHORITY IN THE UNITED STATES. I. The President 71 I. Administrative powers 7* 3. Remedies against the action of the President . . • • 99 II. The commonwealth governor ........ 74 X. The governor a political officer 74 3. His power of appointment ........ 76 3. His power of removal 7^ . 4. His power of direction 79 A 5> His power over the administrative services ..... lo 6. General position of the governor Il 7. Remedies against his action . ., • • • .it CONTENTS. xi / CHAPTER IV. THE EXECUTIVE POWER AND AUTHORITY IN FRANCE. PAGB I. General position 83 II. Administrative powers 83 1. Power of appointment '83 2. Powers of removal and direction 84 3. The ordinance power 85 •- 4. Remedies against his action 87 CHAPTER V. THE EXECUTIVE POWER AND AUTHORITY IN GERMANY. I. The prince 89 1. An authority of general powers 89 2. Limitations of his power . . . . , . . •90 3. His administrative powers 91 II. The Emperor 93 1 . General position 93 2. Powers relative to the official service . . . . . -93 3. His ordinance power 95 CHAPTER VI. THE EXECUTIVE POWER AND AUTHORITY > IN ENGLAND, I. General power of the Crown 97 II. Limitations on the power of the Crown 99 Division II. Executive Councils. CHAPTER I. THE EXECUTIVE COUNCIL IN THE UNITED STATES. I. General position 102 II. In the national government 103 III. In the commonwealth governments 104 IV. Comparison 105 y / CHAPTER II. THE EXECUTIVE COUNCIL IN FRyJCE. I. History 107 (^ II. Organization 108 III. Functions ill xii CONTENTS. CHAPTER III. THE EXECUTIVE COUNCIL IN GERMANY. PAGB I. In the princely governments 114 II. In the empire (Federal council) 116 1. Organization 116 2. Functions 117 3. Remedies against its action .121 CHAPTER IV. THE ENGLISH PRIVY COUNCIL. I. Historical sketch 122 II. Organization 123 III. Functions 124 Division III. Heads of Departments. CHAPTER I. DISTRIBUTION ON BUSINESS AND METHOD OF ORGANIZATION. I. Method of distributing business .127 II. Power of organization . , , 129 CHAPTER II. TERM AND TENURE OF THE HEADS OF DEPARTMENTS. / '' I. In the United States 134 \^-^ II. In France 138 III. In Germany 139 V IV. In England 142 V. Comparison 145 CHAPTER III. POWERS AND DUTIES OF HEADS OF DEPARTMENTS. I. Power of appointment , . .146 II. Power of removal 149 III. Power of direction and supervision 150 I. In the United States and England 151 \^ 2. In France and Germany I54 IV. The ordinance power . 156 V. Special acts of individual application I57 VI. Remedies 158 VII. Local subordinates of the executive departments . . . .159 CONTENTS. xiii BOOK III. LOCAL ADMINISTRATION. CHAPTER I. HISTORY OF RURAL LOCAL ADMINISTRATION IN THE UNITED STATES. PAGB I. History of rural local administration in England to the eighteenth century ........... 162 1. The sheriff 162 2. The justice of the peace 164 II. The development of the system in the United States . . . 165 1. The three original forms of local administration .... 165 2. The early American county 166 3. The early American town ........ 169^ III. Corporate capacity of the localities . . . . . . .171 1. Original absence of corporate capacity 171 2. Present corporate capacity . . . . . . , • ^73 V CHAPTER II. RURAL LOCAL ADMINISTRATION IN THE UNITED STATES AT THE PRESENT TIME. ^ / I. The compromise system 178 1. The county 178 2. The town . . 183 I ,/II. The New England system 185 '. '' I. The county 185 2. The New England town 188 • III. The southern system 189 CHAPTER III. MUNICIPAL ORGANIZATION IN THE UNITED STATES. I. History of the English municipality to the seventeenth and eighteenth centuries .....* 193 1. Origin of the borough 193 2. Development of the municipal council 195 3. Period of incorporation . ' . . , , , . . 196 II. History of the American municipality 199 1. The original American municipality 199 2. Change in the position of the iftunicipality 202 3. Change in the organization of the municipality .... 206 III. The present organization of the American municipality . . . 207 1. The mayor and the executive departments . . . ^ . 207 2. The municipal council " 213— IV. The village or borough . . . 218 1. General position . . 218 2. The village organization . 220 xiv CONTENTS. CHAPTER IV. GENERAL CHARACTERISTICS OF LOCAL . ADMINISTRATION IN THE UNITED STATES. V PACK ^ I. Statutory enumeration of powers ....... 223 1. The centralization of local matters in the hands of an irresponsi- ble central authority 224 2. Local variations .......... 227 3. No local independence . 228 II. Administrative independence of the local authorities J . . . 228 r. Absence of central administrative control . . . . .228 2. Decentralized character of the local organization .... 230 III. Non-professional character of the system 231 CHAPTER V. LOCAL ADMINISTRATION IN ENGLAND. I. History from the seventeenth century to the present time . .234 1. Defects of the old system 234 2. The reforms of 1834 and 1835 236 3. Present position of the justices of the peace .... 239 II. The county 241 1. Organization of the county council .241 2. Powers of the county council 243 III. Rural subdivisions of counties 246 1. Local chaos 246 2. The union 248 3. The parish 250 IV. Urban subdivisions of counties 253 1. The municipal borough 253 .i.., 2. The local government district 258 V. Central administrative control 259 1. Necessity of central approval of local action .... 260 2. Central audit of accounts 260 3. Powers of compulsion 261 4. Disciplinary powers over the local civil service .... 262 5. Grants in aid and central inspection 263 VI. General characteristics 263 CHAPTER VI. THE FRENCH SYSTEM OF LOCAL ADMINIS- \ TRATION. >;^ I. The continental method in general 266 \ II. History of the French system of local administration . . . 268 ' I. Up to the revolution 268 2. The revolution . . . . ^ 269 I 3. The Napoleonic legislation 271 III. The department 272 [ I. The prefect 272 \ 2. The council of the prefecture 274 s \ CONTENTS. XV PAGR 3. The departmental commission ....... 275 4. The general council . 277 IV. The district 283 V. The commune 285 1. History 285 2. The mayor 287 3. The municipal council 289* VI. General characteristics of the French system of local administration . 292 1. General grant of local power 292 2. Central administrative control 292 3. Professional character of the local officers 294 CHAPTER VII. LOCAL ADMINISTRATION IN PRUSSIA. I. History 295 1. Conditions in 1807 295 2. The Stein-Hardenberg reforms 296 3. Reactionary period of 1822-1872 ...... 298 4. Reform of 1872 299 II. Provincial authorities 301 1. The governor {Oberprasident) 302 2. The provincial council 303 3. The government board and president 305 4. The district committee 307 5. The provincial diet 308 6. The provincial committee 311 III. The circle authorities 3^4 1. The Landrath 315 2. The circle committee 3^5 3. The justice of the peace 316 4. Town officers 31,8 5. The circle diet . • 320 IV. The cities 328 1. The city council • . . 331 2. City executive 332 3. City departments . . 334 V. General characteristics of the Prussian system . . . . . 33^ 1. Administrative control 33^ 2. Obligatory unpaid service 337 3. Subjection of local administration to judicial control , . . 337 COMPARATIVE ADMINISTRATIVE LAW BY FRANK J. GOODNOW II LEGAL RELATIONS COMPARATIVE ADMINISTRATIVE LAW. TABL^tf)F CONTENTS. BL^^F CO r^JWi; Lega] VoLu^j^T; Legal Relations. BOOK IV. THE LAW OF OFFICERS. CHAPTER I. OFFICES AND OFFICERS. PAGB I. Definition i 1. In general I 2. Distinction between office and employment 2 II. Methods of organizing offices 6 III. Honorary and professional officers 7 CHAPTER II. THE FORMATION OF THE OFFICIAL RELATION. I. Appointment or election 14 II. The law of elections in the United States , , . . .18 1. The election must be regular . . . . . . • ^9 2. Necessity of notice . 19 _^ 3. Method of voting (ballot) ........ 20 4. What constitutes an election to office 2i III. The law of appointment in the United States 2± IV. Acceptance of the office 23 V. Officers de /ado 25 CHAPTER III. QUALIFICATIONS FOR OFFICE. I. Elective offices . 27 1. Right to provide qualifications 27 2. Usual qualifications 28 II. Appointed officers in the United States 29 1. General qualifications 30 2. Intellectual capacity. The civil-service laws . . , .33 ' III. Qualificati ons for office in France 46 I'^Xienerall quaG^cations ' ~ '^ 46 2. Qualifications of capacity . . . . • . . < 47 xix XX CONTENTS, PAGB IV. Qualifications for oflEice in Germany .,,,,. 48 *^^ General qualifications . 48 2. Qualifications of capacity 49 V. Qualifications for office in England 52 'iT"THe^poiitical service . 52 2. The permanent service 53 VI. Comparison of the various plans 56 CHAPTER IV. THE RIGHTS OF OFFICERS. I. Right to the office .62 II. Special protection .... i|^^|^. .... 64 III. Promotion ^^^^^^ .... 66 IV. Compensation ^^^^1^ .... 68 1. Not a contractual right .... ^^ .... 68 2. How fixed in amount • ... 70 3. How enforced 72 4. Compensation in foreign countries 74 5. Civil pensions 74 CHAPTER V. THE DUTIES OF OFFICERS. I. Duties with a penal sanction " . . .79 1. Common law crimes of officers 79 2. Statutory official crimes . 80 II. Duties of a moral character 82 1. Obedience to orders 82 2. Prompt performance of duties 83 3. Good conduct 84 III. Responsibility of officers for violation of duty 86 CHAPTER VI. TERMINATION OF THE OFFICIAL RELATION. I. Expiration of the term 8g II. Resignation 92 III. Loss of qualifications 95 IV. Removal from office 97 V, By legislative action , . . * 100 BOOK V. THE ADMINISTRATION IN ACTION. CHAPTER I. DISTINCTION OF THE METHODS FROM THE DIRECTIONS OF ADMINISTRATIVE ACTION. loi CHAPTER II. EXPRESSION OF THE WILL OF THE STATE. I. Unconditional statutes . 106 II. Conditional statutes . . . . . . . . . 109' 1. Administrative ordinances . . . . . • • .110 2. Special administrative orders . . • • • • .112 CONTENTS, xxi CHAPTER III. EXECUTION OF THE WILL OF THE STATE. PAGE I. Means of execution 119 1. Imposition of penalties 119 2. Enforced performance of the act ordered . . , , ,120 a. Execution of the law by the payment of a sum of money . 120 b. Arrest 121 c. Application of physical force 122 II. Methods of execution 123 .r,^,JL. Judicial process 124 2. Administrative executi^^^ 127 :ecut^^^^^ ^MMINl CHAPTER IV. ^^|PC>CIALISTIC ACTION OF THE lDMINISTRATION. 130 BOOK VI. THE CONTROL OVER THE ADMINISTRA- TION. Division I. The Methods of Control. CHAPTER I. FORMATION OF THE CONTROL. I. Necessity of control 135 II. Interests to be regarded , 137 III. Kinds of control, and particularly the administrative control . 140 1. The administrative control 140 2. The judicial control 142 3. The parlimentary or legislative control ..... 143 Division II. The Judicial Control. \_y CHAPTER I. ANALYSIS OF THE JUDICIAL CONTROL. I. Use of ordinary judicial institutions 144 II. Administrative jurisdiction 146 III. Kinds of judicial control 147 ^ CHAPTER II. CONTROL OF THE CIVIL COURTS. I. Suits by or against the government .... 1. Suits by the government against individuals 2. Suits by individuals against local corporations 3. Suits by individuals against the central government a. The English rule b. The rule in the United States .... S/' c. The continental rule 149 150 152 154 154 156 161 xxii CONTENTS, V FAGB. II. Suits for damages against officers 163 I. The English rule 163 The Roman rule , 169^ a. The modification of the Roman rule in France . , .172 b. The modification of the Roman rule in Germany . , .176^ CHAPTER III. CONTROL OF THE CRIMINAL COURTS. I. Power of the police courts 178- II. Power of the criminal courts to punish officials. Method of prose- cution ^^^^ 179 1. Private prosecutor . . ^^^^^ .180 2. The United States district attome^H|^^k . .181 3. Public prosecutor T^^^P .... 186 CHAPTER IV. THE ADMINISTRATIVE JURISDICTION IN ENGLAND AND THE UNITED STATES. I. Characteristics of the administrative jurisdiction in general . . 190 II. History of the English method ....... 192 1. History to the beginning of the eighteenth century . . . 192 2. History in the United States 198' CHAPTER V. THE ADMINISTRATIVE JURISDICTION OF THE HIGHER COURTS. I. At common law .......... 200 1. The special remedies 20a 2. Prerogative character of the writs . 202 3. The purpose of the writs 204 4. Questions considered on the writs 205 5. Distinction between legal and equitable remedies .... 209 6. Administrative jurisdiction of the United States federal courts . 21Q II. Special and statutory administrative jurisdiction of the lower courts, 214 1. Appellate jurisdiction of courts of quarter sessions or county courts, 214 2. Special case 2i6- CHAPTER VI. THE ADMINISTRATIVE JURISDICTION IN FRANCE. I. History . . . "T 217 II. Reasons for the retention of the system 220 1. Need of special courts 220 2. Need of an inexpensive and informal procedure .... 221 III. General characteristics of the French system 221 1. Administrative courts, courts of enumerated jurisdiction • . 221 2. Judges not independent of the administration .... 223 3. Judges professional in character 224 4. Great freedom of appeal • 225 CONTENTS, xxiii PAGB IV. Nature of the remedies 226 1. The general jurisdiction of the administrative courts . . , 226 2. Appeal to the Council of State for excess of powers . . , 229 V. The administrative courts , 233 1. General administrative courts ; the councils of the prefecture , 233 2. Special administrative courts 239 a. Educational courts 236 b. The councils of revision 237 3. The supreme administrative court, the Council of State . .238 t^HKdi ^j^m G CHAPTER VII. T^^DMINISTRATIVE JURISDICTION GERMANY. I. History 240 -I. From 1806 to the formation of the empire 240 2. Since the formation of the empire 243 II. The general characteristics of the German system .... 243 1. General canons of distinction 243 2. The administrative jurisdiction of the ordinary courts . , . 244 III. The administrative courts in Germany 245 1. Imperial courts 245 a. The imperial poor-law board ...,.,, 245 b. Imperial fortress belt-commission 246 c. Imperial railway court 246 d. Imperial patent ofl&ce 246 e. The disciplinary court and chambers 247 f. The imperial superior marine office 247 2. The Prussian administrative courts . -* 248 a. Their jurisdiction 248 b. Their organization 251 CHAPTER VIII. CONFLICTS OF JURISDICTION. 257 Division III. The Legislative Control. CHAPTER I. HISTORY OF THE LEGISLATIVE CONTROL. 262 ^r CHAPTER II. THE POWER OF THE LEGISLATURE TO REMEDY SPECIAL ADMINISTRATIVE ABUSES. 266 I. Where the administration is independent of the legislature (United States and Germany) 267 II. Where the administration is dependent upon the legislature (France and England) 271 xxiv CONTENTS. FAGS CHAPTER III. THE LEGISLATIVE CONTROL OVER THE FINANCES. I. Control over receipts 275 II. Control over expenses . , , 279 III. Examination of accounts. ........ 291 CHAPTER IV. IMPEACHMENT. 296 List of Authorities 303 Index iHk.* • • • • 309 n. TABLE OF CASES CITED. R.3 Eq., 436 Ahleman v. Booths 21 How., 506 . Alden v. Alameda Co., 43 Cal., 270 Anderson v. Dunn, 6 Wheaton, 204 Andrews v. Portland, 79 Me., 484 . Antoniv. Greenhow, 107 U. S., 769 Astor V. Mayor, 62 N. Y., 567 Attorney-General y . Bar stow, 4 Wis., 467 V. Bishop of Manchester, L. V. Boston, 123 Mass., 460 V. Detroit Common Council, 58 Mich., 215, 219 V. Squires, 14 Cal., 13 Augusta V. Sweeny, 44 Ga., 463 Aurora, The Brig, 7 Cranch, 382 . Badger v. United States, 93 U. S., 599, 603 Bailey v. Mayor, 3 Hill, N. Y., 531 Baldwin v. Kansas, 81 Ala., 272 . Baltimore v. Board of Police, 15 Md., 376 V. Johnson, 62, Md., 225 Bank of Chenango v. Brown, 26 N. Y., 467, Barbour \. U. S., 17 Ct. of CI., 149 Barker v. T'^^//*?, 3 Cowen, N. Y., 686 . Barry, Ex parte, 2 How., 65 . . . Bealv. McVicker, 8 Mo. App., 202 Belly. Hearne, 19 How., 252 Benson v. Mayor, 10 Barbour, N. Y. , 223 Biddley. Willard, 10 Ind., t2 Binninger, In re, 7 Blatchford, U. S. C. C, 159 Blake V. United States, 14 Ct. of CI., 462 Bliss V. Lawrence, 58 N. Y., 442 . Bloomfieldw. Charter Oak Bank, 121 U. S., I2I Blount's Trial .... Board of Police y. Grant, 17 Miss,, 77 Bonner v. United States, 9 Wall., 156 469 VOL. PACK . II. 213 . II. 153 . II. 269 . II. 270 II. 257, 285 . I. 225 . II. 208 . I. lOI . II. >T&, U. S. Sup. Ct., Oct. term, 189 Fiskv, Police Jury, 116 U. S., 131 Fitzsimmons v. Brooklyn, 102 N. Y., 536, 539 Fordv. Commissioners, 22 Pac. Rep., 278 Foster \. Kansas, 112 U. S., 201 . Foutw. State, 3 Haywood, Tenn., 98 Fremont v. Crippen, 10 Cal. 211 . Gaines v. Thompson, 7 Wall. , 347 . Galesburgy. Hawkinson, 75 111., 152 6^a/^j V. Delaware Co., 12 Iowa, 432 Gibbons \. United States, 8 Wall., 269 . Goddardv. Petersham, 136 Mass., 235 . Gonzales v. State, 26 Texas, 197 Gordon v. United States, 117 U. S., 697 . Graham v. Norton, 15 Wall., 247 . Gramnlle v. County Commissioners, 97 Mass., 193 Gratiot y. United States, 4 How., Bo VOL. PAGR . . II. 62 . II. 96 I. 202 . II. 27, 29 . 'I. 12 . I. 172 . II. 68 . II. 3 . II. 96 . II. 26 . II. 26 . II. 184 . II. 209 . II. 98 . II. 149 . II. 3 . 1.82.99 . I. 74 . II. 3 . n. 94 . I. 151 . II. 210 . II. 3 . II. 166 . II. 68 1.22: r, II. 22, 27 . . II. 20 1. 72, 1 56, II. 208 I. 28 . II. 70 . II. 68, 70 II. lOI II. 99 . II. 182 II. 204 . II. 205 I. 24 . n. 94 [1. 157, 159 II. 68 II. 183 I. 24 II. 213 II. 204 I. 156 XXVlll TABLE OF CASES CITED. Green v. Burke, 23 Wendell, N. Y., 490, 503 V. Mumford, 5 R. I., 472 Gregory V. New York, 113 N. Y., 416 Grier v. Taylor, 4 McCord, 206 Gulick V. New, 14 Ind., 93 Hadley v. Albany, 33 N. Y., 603 . Hall, In re, 50 Conn., 131 Hamilton County v. Mighels, 7 Ohio St., 109 Hamlin v. Kassafer, 15 Oregon, 465 Hartford \. Bennett, 10 Ohio St., 441 Hartman v. Greenhow, 102 U. S., 672 Hatch V. Mann, 15 Wendell, 44 Hayburn^s Case, 2 Dallas, 408 Hennen, Ex parte, 13 Peters, 230 . Hightower v. Oberbanker, 65 Iowa, 347 Higley v. Bunce, 10 Conn. , 436 Hilly. Boston, 122 Mass., 344 Hinze v. People, 92 111. , 406 . ^*V^ V. 5/fl/f^, 9 Yerger, Tenn. , 198 A'^5 203 5 TABLE OF CASES CITED, XXXI People V. French^ 119 N. Y., 502 • V. Goodwin^ 22 Mich., 496 V. Green, 58 N Y., 295 V. Hall, 80 N. Y., 117 V. Halsey, 37 N. Y., 344 V. Harlow, 29 111., 43 . V. Hartiuell, 12 Mich., 508 V. ^»V/, 53 N. Y., 547 V. , 13 N. Y. Supplement, 186 ; 126 N. Y., 497 V. Hopson, I Denio, N. Y., 574, 579 V. Hurlburty 24 Mich. , 44 . . . . I. 22, 23 V. Hurst, 41 Mich., 328 V. Keeler, 99 N. Y., 463 V. Kelduff, 15 111., 492 V. Lawrence, 56 N. Y., 182 V. Learned, 5 Hun, N. Y.y 626 V. Leavitt, 41 Mich., 470 V. Leonard, 73 Cal. , 230 V. Mahaney, 13 Mich., 481 . V. Marble, 118 Mass., 548 . V. May, 3 Mich. , 598 . V. Mayor, 10 Wendell, N. Y., 395 V. McCall, 65 How. Pr., N. Y., 442 V. Murray, 70 N. Y., 521 V. Nevada. 6 Cal. , 143 V. Norton, 7 Barbour, N. Y., 477 V. Palmer, 52 N. Y., 84 V. Pease, 27 N. Y., 45, 34 • V. Phillips, 67 N. Y., 582 . V. Pinckney, 32 N. Y., 377 . V. Piatt, 50 Hun, N. Y., 454 V. Police Commissioners, 1 14 N. Y., 245, 247 V. , 43 How. Pr., N. Y., 385 V. Porter, 6 Cal., 26 . V. Stephens, 71 N. Y., 527 V. Stillwell, 19 N. Y., 531 V. Supervisors, 17 Hill, N. Y., 195 V. Tieman, 30 Barb., N. Y., 193 V. Trustees, 54 Barb., N. Y., 480 V. Walter, 68 N. Y., 403 . V. Weber, 89 111., 347 . V. Woodruff, 32 N. Y., 355 Perry \. Shepherd, 78 N. C, 83 . Pierce V. Boston, 3 Mete. Mass., 520 Pike V. Megoun, 44 Mo. , 491 . Plymouth v. Painter, 17 Conn., 585 VOL. PAGB . II. 206 . II. 63 11.96 204 . II. 63 . II. 205 . II. 72 . II. 20 . II. 203 I. 82, II 208 . II. •26 227, II. 22. 27 . II. 182 . II. 270 . II. 63 . I. 82 . II. 270 . II. 204 . II. 97 I. 204, II. 22 . II. 72 . II. 29 . II. 204 . II. 70 . II. 23 . I. 24 . II. 79 . II. 89 II. 21, 206 . II. 204 . I. 225 I. 82, II. 208 . II. 68 . II. 202 . II. 93 . II. 156 . II. 203 . II. 287 . II. 26, 90 . II. 205 . II. 204 . II. 26 . II. 23 . II. 210 . I. 12 . II. 169 . II. 25 XXXll TABLE OF CASES CITED. Poindexier v. Green how, 114 U. S., 270 Privett V. Bickford^ 26 Kan., 52 Queen v. Eastern Counties R'y Co., 10 Ad. & El V. Hunger ford, 1 1 Mod. Rep. V. Lords, 4 Ad. & El., 286 . V. 4 Eng. Rep. , 277 . V. L. R., 7 Q. B., 387 R. R. Commissioners, In re, 15 Neb., 682 Reed, Ex parte, icx) U. S., 13 Rees V. City of Watertown, 19 Wall., 107 Rex V. Bower, i B. & C, 585 V. Chichester, 2 El. & El., 209 V. Colbeck, II Ad. & El., 161 . V. Hanson, 4 B. & Aid., 521 . V. Hughes, 5 B. & C, 886 V. Kent, J J., 41 J. P., 362 . V. London, 8 How. State Trials, 1039 V. Middlesex JJ., I Chitty Rep., 366 V. Patterson, 4 B. & Ad. ,9 V. R'y Co., 43 L. J. M. C, 57 . V. Water Works, i N. & P. 48 Riddle V. Bradford, 7 S. & R., Pa., 386, 392 Ripley y. Gifford, ii la., 367 . Robinson's Case, 131 Mass., 376, 383 Rodman v. Harcourt, 4 B. Mon. K'y, 224, 229 Rogers v. Buffalo, 123 N. Y., 173 . V. 2 N. Y. Sup., 326 V. Jacobs, II S. W. Rep., 513 Runkle V. United States, \ii U. S., 543 . Russell \. The Men of Devon, 2 T. R., 672 Sampson v. Peaslee, 20 How., 571 . Santa Clara Co. v. R. R. Co., 18 Fed. Rep., 385 Savacool V . Boughton, 5 Wendell, N. Y., 170 Scales V. The Ordinary, 41 Ga., 225 Schooner Orono, The, i Gallison C. C, 137 Schuchardt v. People, 99 111. , 501 . Searcy V. Grow, 15 Cal., 117 . Secordv. Foutch, 44 Mich., 89 Sedwayy. Commissioners, 120 111., 496 . Sikes V. Hatfield, 13 Gray, Mass., 347 . Smith, Ex parte, 2 Cranch, C. C, 693 . V. Moore, 90 Ind., V. Moore, 90 Ind., Smythe v. Fiske, 23 Wall. , Stadler v. Detroit, 13 Mich. Starin v. Town of Genoa, 23 N. Y. 294 294 374 346 306 441 V 531 VOL. PAGB II. 257 II. 29 II. 204 II. 201 II. 209 II. 209 II. 209 I. 131 I. 156, II. 5 II. 211 II. 24 II. 205 II. 215 II. 215 II. 96 II. 216 I. 197 II. 215 II. 96 II. 216 II. 203 II. 26 II. 72 II. 28 II. 26 II. 28 II. 35 II. 19 I. 72 I. 172 I. 28 II. 117 II. 166 I. 175 I. 74 II. 32 II. 29, 97 II. 20 II. 68 1. 174 , II. 68 II. 4 II. 24 II. 29 I. 18 II. 100 I. 176 TABLE OF CASES CITED. StcUe Bank v. Hastings, 54 Wis., 78 States. Ashley, 1 KxV.^e^X'i . V. Barbour, 53 Conn., 76 V. Biddle, 36 Ind., 138 . V. Brewer, 59 Ala., 130 V. Buttz, 9 S. C, 156 . Capens, 37 La. Ann., 747 V; Carroll, 38 Conn., 449 V. Champ lin, 2 Bailey, S. C, 220 V. Chase, 5 Ohio St., 528 V. Clarke, 3 Nev., 519 . V. De Gress, 53 Tex., 387 V. Denny, 118 Ind,, 449 V. Douglas, 26 Wis., 428 V. Ferguson, 31 N. J. L., 107 V. Garesche, 65 Mo., 480 V. Gloticesier, 44 N. J. L., 137 V. Goss, 69 Me., 22 V. Hauss, 43 Ind., 105 . V. Hoboken, 38 N. J. L., no V. /. S. S., I Tyler, Vt., 178 V, Kammer, 42 N. J. L., 435 V. Kennon, 7 Ohio St., 560 V. Kreps, 8 Ala. 951 V. Lamberton, 37 Minn., 362 V. Mar low, 15 Ohio St., 144 V. Martin, 46 Conn., 479 V. McKee, i Bailey, S. C, 651 V. McMillan, 23 Neb., 385 V. Moody, 69 N. C, 529 State V. Moore, 90 Ind., 294 . V. Murray, 28 Wis., 96 . V. Newhouse, 29 La, Ann., 824 V. Saline Co., 18 Neb., 428 V. Salle, 41 Mo., 31 V. Smith, 14 Wis., 497 . V. Stanley. 66 N. C, 59 V. Steele, 57 Tex., 200 . V. St. Louis, 90 Mo., 19 V. Trump f, 50 Wis., 103 State of Mississippi v. yohnson, 4 Wall. Statham v. State, 41 Ga., 507 Stephens v. People, 89 111., 337 Stewart \. Police Jury, 116U. S., 135 Still \. Brennan, 41 L. J. M. C, 85 Stockwell V. Township Board, 22 Mich. 475 341 XXXIU VOL. PAGE . II. 71 . II. 210 . IL 23 . IL 210 . II. 68 . II. 96 . II. 23 . IL 25 . IL 62 . IL 208 II. 29, 92 U 94 . II. 97 I. 227, I] . 22 . IL 100 . II. 24, 93 . IL 206 . II. 20 . II. 26 . II. 94 . II. 112 . II. 184 . IL 204 I. 135. I] . 22 . IL 184 . IL 204 . IL 63 . IL 204 . II. 184 . IL 29 . IL 183 . IL 29 . IL 28, 29 . II. 96 . I. 182 . IL 4 . IL 28 . 11. 2. 4.8 . II. 70 II. 87. 206 . IL 28, 29 I. 34. 11. 208 . II. 183 . II. 19 . II. 70 . IL 215 II. 87, 206 XXXIV TABLE OF CASES CITED. 563 Stokes V. Kendall, 3 How., 87 Talbot County v. Queen Anne's County, 50 Md, Tarble's Case, 13 Wall., 397 . Taylor et al, v. United States, 3 How., 197 Thompson y. United States, 103 U. S., 480 Throop V. Langdon, 40 Mich., 673 . Tobin V. Queen, 16 C. B. N. S., 310 Town of Gallatin v. Loucks, 21 Barbour, N, "V Townsend V. Mayor, etc., 77 N. Y., 542 Tracy v. Swartout, 10 Peters, 80 . Trenton Water Power Co., In re, Spencer, N, Trimmer v. Bomar, 20 S. C, 354 . Underwood v. Robinson, 106 Mass. , 296 . United States v. Avery, Deady, U. S., 204 V. B. 6- O. R. R. Co., 17 Wall. V. Barrels of Spirits, 2 Abbott'i V. Barrows, i Abbott's, U. S. ( V. Bradley, 10 Peters, 343 V. Cakwalader, Gilp., U. S., V. Cobb, II Fed. Rep., 66 V. De Groot, 5 Wall., 419 . V. Eckford, 6 Wall., 484 . ■ V. Eliason, 16 Peters, 291 V. Farden, 99 U. S., lO . V. Ferreira, 13 How., 40 V. Fisher, 109 U. S., 143 . V. Germaine, 99 U. S., 508 V. Great Falls M^fg. Co., 112 V. Hartwell, 6 Wallace, 385 V. Hendee, 124 U. S., 309 V. Jones, 131 U. S., I V. Kendall, 5 Cranch, C. C. U. V. Langston, 118 U. S., 389 V. Martin, 17 Fed. Rep., 150 V. Maurice, 2 Brockenbrough, V. Mc Daniel, 7 Peters, i, 16 V. Mitchell, 109 U. S., 143 V. Mouat, 124 U. S., 303 . V. Page, 137 U. S., 673 . V. Palmer, 128 U. S., 262 V. Perkins, 116 U. S., 483 V. Peters, 3 Dallas, 121 V. Ringgold, 8 Peters, 150 V. Schurz, 102 U. S., 378 V. Seaman, 17 How., 225 V. Shoemaker, i McLean, U. S 245 M 578 J 659 322 U c u.s s., u.s 351 645 163 96 , 114 VOL. PAGE . II. 165 . I. 175 . II. 213 , I. 18, II. 107 . . II. 94 . . II. 3 . . II. 155 . . I. 174 . .11. 287 . I. 151, II. 161, 166 . II. 204 . II. 19 . II. 166 . I. 65 . I. 43, 202, 206, 228 05 . I. 18 . I. 28, 156 . . II. 149 . . I. 157 . . I. 153 . II. 152 . II. 152 . . 1.28,73 . . I. 73 . . I. 24 . . II. 70 . . II. 4 . . II. 157 . . II. 2, 4. 5 . . II. 5 . . II. 157 . . I. 67 . II. 70, 72, 285 . . II. 3 II. 26, 149 , I. 32, II. 152 . II. 70 . . n. 4 . . I. 72 . . n. 157 . . II. 35 . II. 212 . II. 152 II. 206, 209 . II. 205 II. 181, 184 TABLE OF CASES CITED, XXXV United States v. Smallwood^ i Chicago Legal News, 321 V. Smithy 124 U. S., 525 . V. Stowell, 2 Curtis U. S. C. C, 153 V. Tingey, 5 Peters, 115 . V. Yale Todd, 13 How., 52* V. Youngs 94 U. S., 258 . Vallandigham, Ex parte ^ I Wall., 243 . Van Orden, Ex parte ^ 3 Blatchford, U. S. C. C, 167 Van Orsdelly. Hazard, 3 Hill, N. Y., 243 . Vaughn v. English, 8 Cal., 39 . . . Viscount Canterbury v. Attorney-General, i Fhillimore, 306 Walls. Trumbull, 16 Mich., 228 . ?rfl//rfl//v. i?> C^., 48 L. J. M. C, 65 Walter V. B elding, 2^ \t.,tS^ Wardw. County of Hartford, 12 Conn., 406 . Wartmans. City, 33 Pa. St., 202 . Watson V. Watson, 9 Conn., 140 . Webber v. Gay, 24 Wendell, N. Y., 485 Wellington et al. Petitioners, 16 Pickering, Mass., 87, 105 White V. Levant, 78 Me., 568 ... Wilckens v. Willet, i Keyes, N. Y., 521 Wilcox V. Jackson, 13 Peters, 498 Williamson v. U. S., 1 How., 290 ; 17 Peters, 144 Wilmarth v. Burt, 7 Metcalf, Mass., 257 Wilson V. Mayor, i Denio, N. Y., 595 . Wolseyv. Chapman, loi U. S., 755 Worthy v. Barrett, 63 N. C, 199, 20I . Wright V. C/»j>^ ^/a/^j, i McLean, U. S. C. C, 509, 512 Wyandotte v. Drennan, 46 Mich., 478 .... VOL. PAGE II. 211 II. 3 IL 184 ,186 II. 149 I. 24 II. 211 II. 211 II. 211 II. 93, 97 II. 4 IL 155 IL 166 II. 216 IL 63 I. 172 I. 213 IL 166 II. 166 IL 205 II. 68 IL 270 1.73. 156 I. 72 IL 166 IL 168 I. 73 IL 5 IL 93 IL 69 V i UNlVEFfSlTY OF BOOK I. THE SEPAEATION OF POWEKS. CHAPTER I. ADMINISTRATION. /. — Administration as a function of government. The word administration is used in several senses. Thus we speak of tlie administration of an estate, the administration of a business, and of the administration of government.^ In the following pages the word administration will be used with reference to govern- ment. But even when used with reference to govern- ment, this word has as many as three meanings. In its widest sense, it is used to indicate the entire activity of the government ; again in a narrower sense, the en- tire activity of the government with the exception of that of the legislature ; in a third and narrowest sense, the activity of the government with the exception of vn^ the activity of both the legislature and the courts.^ Administration in this narrowest of senses, which is the proper sense for it as indicative of a function of government, is the activity of the executive officers of ' Stengel, Deutsches Verwaltungsrecht, i. " Kirchenheim, Einfiihrung in das Verwaltungsrecht^ %. 2 THE SEPARATION OF POWERS. the government. Tlie government administers wlien it appoints an officer, instructs its diplomatic agents, assesses and collects its taxes, drills its army, investi- gates a case of the commission of crime, and executes tlie judgment of a court. Whenever we see the gov- ernment in action as opposed to deliberation or the rendering of a judicial decision, there we say is ad- ministration. Administration is thus to be found in all the manifestations of executive action. The direc- tions in which this action manifests itself depend upon the position of the state and the duties of the government. In the first place, the state occupies a position among other states ; it is a subject of international law, and as sucli has rights and duties over against other states and must enter into relations with them. The man- agement of these relations calls for certain executive action. This action constitutes a branch of the gen- eral function of administration, viz.^ the Administra- tion of Foreign Relations. In the second place, the state must have means at its command to repel any attempts which may be made against its existence or power by other states or against its peace and order by its own inhabitants. In other words, it must have an army and in most cases a navy. The executive action made necessary by the existence of a military force constitutes another branch of administration, viz.^ the Administration of Military Affairs. In the third place, every government must do some- thing to decide the conflicts which arise between its inhabitants relative to their rights. This duty makes the existence of courts necessary ; and they in turn re- ADMINISTRATION. 3 quire executive action, which forms a third branch of administration, viz.^ the Administration of Judicial Affairs.* In the fourth place, in order that the government may perform all its duties, it must have pecuniary means. The management of its financial resources forms another and fourth branch of administration, viz.^ the Financial Administration or the Administration of Financial Affairs. The theories of some political philosophers would almost confine the action of govern- ment to these branches of administration; but no government was ever actually so confined by its con- stitution ; and every modern state has recognized that it is the duty of the government to further directly the welfare, both physical and intellectual, of its citizens. This it does by the formation and mainten- ance of a system of means of communication, of an educational system, of a system of public charity, etc. How far the action of the government shall extend in this direction ; what it shall do and what it shall leave to the private enterprise of its citizens ; are most im- portant political questions, but questions which must be answered by political and social science.^ The duties performed by the government in furthering the wel- fare of its citizens may be classed together as internal * By this term is meant not the decision by the courts themselves of the con- troversies which may arise, since by the definition of the term administration which has been adopted this branch of governmental activity has been excluded from the conception of administration ; but the activity of the executive organs of the government to the end that the courts be in existence and in a position to discharge their duties, i, e. the appointment, discipline, and distribution of the judges and their subordinate officers. This is a side of what is ordinarily called the administration of justice, which in most countries is easily distinguished from the rendering of judicial decisions. * Cf. Burgess, Political Science and Comparative Constitutional Law, I. , 83. 4 THE SEPARATION OF POWERS. affairs; and the executive action of the government necessitated by the performance of these duties forms ^/a fifth branch of administration, viz,^ the Adminis- tration of Internal Affairs. These five branches of administration embrace all the functions which the government is called upon to discharge whatever may be its form of organization. In the fifth branch — the administration of internal affairs — we find the greatest difference between states in the functions discharged by the government — a dif- ference which is dependent 'upon the political philos- ophy which obtains.^ Such, then, is the meaning which will be given in the following pages to the term administration con- sidered as a function of government. It is the entire activity of the government, exclusive of that of the legislature and the purely judicial work of the courts, in the fivefold direction of foreign, military, judicial, financial, and internal affairs. //. — The administration as an organization. The government is, however, simply an ideal concep- tion with no physical existence. In order that it may make itself felt in the world of action it must have agents capable of physical action who are to represent it. These agents must be properly organized for each * Several of the latest continental writers on administration have endeavored to differentiate another branch of administration, which they call the general administration of the country. See Kirchenheim, op. cit., 5 ; Stengel, Deut- sches Verwaltungsrechty 5. They classify under this branch such matters as the elections and the relations of the government with the church. This attempted formation of a sixth branch of administration is, however, contrary to general usage and seems unnecessarily to complicate the subject, as all matters may, without doing them great violence, be classed under the appropriate one of the five branches distinguished. ADMINISTRATION, 5 of tbe five branches of administration which have been distinguished : and further in order to secure unity in their action in these various directions there must also be organized an authority at the head of this adminis- trative personnel — an executive chief. On this account the study of administration is not taken up exclusively with a consideration of the rules of administrative action ; but a large part of the time devoted to this study must be given to the subject of administrative organization. Indeed, the importance of the adminis- ti'ative organization is so great that the term adminis- tration is often used to indicate the entire administra- tive organization extending down from the executive chief to the most humble of his subordinates. The word administration thus means, at the same time that it indicates a function of government, the executive organization of the state. Administration is the func- tion of execution ; the administration is the totality of the executive and administrative authorities. CHAPTER II. ADMINISTRATIVE LAW. /. — Definition. In this country and in England, where no serious attempt has been made to classify the law in accordance with the relations which it governs, the term adminis- trative law is almost meaningless. While we speak with perfect propriety of administration as indicative of a function of government, and of the administration as an executive organization, there is hardly an Ameri- can or English lawyer who would recognize the ex- istence of a branch of law called administrative law. Indeed as eminent a writer as Professor Dicey claims ^ that "in England and in countries which, like the United States, derive their civilization from English sources, the system of administrative law and the very principles on which it rests are unknown." He does not, however, mean by this to deny the existence of an administrative law in the true continental sense, but simply the existence of his conception of the French droit administratif^ a conception which appears to be quite unwarranted. The general failure in Eng- land and the United States to recognize an administra- tive law is really due, not to the non-existence in these ^ The Law of the Constitution, 3rd Ed., 304-306. 6 ADMINISTRA TIVE LA W, 7 countries of this branch of the law but rather to the well-known failure of English law writers to classify the law. For not only has there always existed in England, as well as in this country, an administrative law, in the true continental sense of the word, but this law has exercised on Anglo-Saxon political development an influence perhaps greater than that exerted by any other part of the English law. Of late years, with the great awakening on the continent of Europe of interest in administrative subjects, the term admin- istrative law — in reality a simple translation of a French expression — has gradually crept into our legal vocabulary, and at the present time has obtained recognition from some of the most advanced legal thinkers.^ The use of the term may therefore be regarded as perfectly proper ; though that use must be accompanied by an explanation. Adopting the system of legal classification now generally admitted to be the most desirable, viz.j according to relations governed, we find that administrative law is that part of the law which governs the relations of the executive and ad- ministrative authorities of the government. It is there- fore a' part of the public law, but it is only a part. All such rules of law as concern the function of administra- tion, and only such rules of law, belong to administrative law. Further, since the function of administration depends for its discharge upon the existence of admin- istrative authorities, whose totality is called the ad- ministration, adminstrative law is concerned not alone with the relations of the administrative authorities but ' E. g. see Holland, Elements of Jurisprudence, 4th Edition, 1888, 122, 303, 308-311 ; Lightwood, The Nature of Positive Law^ ^o^ \ The yuridical Review , II., No. 5, 13 ; Stimson, American Statute Law^ v. X 8 THE SEPARATION OF POWERS. also with their organization. Administrative law at the same time fixes the offices which shall form part of the administration and determines the relations into which the holders of these offices shall enter. In so far as it fixes the organization of the adminis- trative authorities, administrative law is the necessary supplement to constitutional law. While constitutional law gives the general plan of governmental organization, administrative law carries out this plan in its minutest details. But administrative law not only supplements constitutional law, in so far as it regulates the adminis- trative organization of the government ; it also comple- ments constitutional law, in so far as it determines the rules of law relative to the activity of the administrative authorities. - For while constitutional law treats the relations of the government with the individual from the standpoint of the rights of the individual, adminis- trative law treats them from the standpoint of the powers of the government. Constitutional law, it has been said, lays stress upon rights; administrative law emphasizes duties.^ But while administrative law emphasizes the powers of the government and the duties of the citizen, it is nevertheless to the administrative law that the individual must have recourse when his rights are violated. For Just so far as administrative law delimits the sphere of action of the administration it indicates what are the rights of the individual which the administration must respect ; and, in order to prevent the administration from violating them, offers to the individual remedies for the violation of these rights. Administrative law is therefore that part of the public law which fixes the organization and determines ^ Boeuf, Droit Adminisiratif, iv. ADMINISTRA TIVE LA W, 9 the competence of the administrative authorities, and indicates to the individual remedies for the violation of his rights. //. — Necessity for separate treatment. It may be asked why is it necessary to separate administrative law from the body of the law ? Do the rules of law governing the relations of the administration differ so much from the rules governing the relations of individuals as to necessitate in a logical classification of the law the assignment of a special domain to ad- ministrative law ? The question is susceptible of easy answer so far as the first great class of the rules of administrative law are concerned. The rules of law governing the organization of the administration must be quite different from the rules of law governing the relations of individuals, since the whole purpose of such rules is the public rather than the individual welfare. When we come to the second great class of rules it may, however, well be asked, are there or must there be rules of law for the regulation of the action of the administration different from those which regu- late the action of individuals? The government in many cases acts in much the same way as an ordinary individual ; and in these cases, it may be urged, might be subjected to the same rules of law which affect private individuals. Thus the government may carry on railroad enterprises, may offer means of communi- cation by carrying the mails, may own large landed properties. In all of these cases the government has many of the characteristics of a private person, and it might be concluded from this fact, that the ordinary rules of private law might be applied to it, that no lo THE SEPARATION OF POWERS. special rules of law were necessary. Nevertheless, for the regulation of even these matters, special rules of law are enacted because the government cannot wisely or conveniently be treated as a private person. When it carries a letter the government cannot be re- garded as an ordinary carrier of merchandise, because in transacting this business its object is not usually the acquisition of gain but the furtherance of the welfare of the community. This is the great distinction between public and private business.* Therefore the government enacts, for the regulation of the relations into which it enters with those persons who entrust letters to it, rules of law which differ from the ordinary rules of law regulating the relations of carriers, in that they are more favorable to the government. We find a special set of laws which we call postal laws. These form part of the administrative law, since they govern the action of the officers of the administration in the performance of this particular duty of the government. In other, and indeed in most, cases, however, the gov- ernment has few if any of the characteristics of a pri- vate person. It represents the sovereign power of the land. Through its administrative authorities it de- mands of the persons in its obedience the sacrifice of their property and curtails their freedom of action. It orders the tearing down of a house and the pay- ment of taxes ; it requires those who have charge of persons suffering from a contagious disease to notify the administration and enforces a quarantine against the diseased persons themselves. That the adminis- tration must do all of these things is now everywhere recognized ; but nowhere is it recognized that it may ' Cf. Kirchenheim, op. cit.y 21 ; Adams, Public Debts, 369. ADMINISTRA TIVE LAW, il act in tlie doing of these things in accordance with its own unlimited discretion/ The grant to the adminis- tration of such enormous discretionary powers as would be necessary, would prove, indeed has in the past proved, dangerous in the extreme to the maintenance of individual liberty. There has therefore been a con- tinuous attempt on the part of the people to control the discretion of the administration in the exercise of the sovereign powers of the state. This attempt has resulted in the formation of a new body of law which determines and delimits administrative action and dis- cretion ; and this body of law is made as a general thing by the legislature, the representative of the people and the supposed protector of individual rights.^ The administration is thus brought within the law, but it still does not lose its position as the representa- tive of the sovereign power. Therefore, in spite of the great development of popular institutions, at the pres- ent time the action of the administration in the most democratic states is easily distinguished in kind from that of private persons. The result of the position of the administration as the representative of the sovereign is that the law which governs the relations into which it enters as such representative is quite different in many respects from the private law. In this law contract and tort play a very subordinate role. While contract and tort lie at the basis of a large part of the private law, in public law and therefore in administrative law there is hard- ly any room for them, no room for them at all it may be said, except where the government is treated as ^- * Kirchenheim, op. cit., 21. ' Cf. Sarwcy, Allgemeines Verwaltungsrecht^ 37. 12 THE SEPARATION OF POWERS. cus, i. e, as a subject of private law. For the relations into which the administration enters are not as a rule contractual relations, but find their sources and their limitations rather in obligations or powers conferred by the sovereign power through its representative the leg- islature ; nor are the injuries which the administration as administration commits often torts, but are rather to be classed as damna absque injuria. Thus the re- lations of the administration with the individual result- ing from the exercise of the taxing power are almost never contractual relations; taxes are not debts but obligations imposed on the individual by the public law,^ and are not governed by the principles of the private law. Thus also the relations into which the administration enters with its officers are not gov- erned by the private-law rules affecting the relation of master and servant. For the official relation is not a contractual relation but again a relation formed by the operation of public law.^ Still again, while the relations of the government with private corporations are by the laws of the United States in many cases governed by contract principles, i, e, the clause of the United States constitution preventing a commonwealth from passing a law impairing the obligation of a con- tract (which is supposed to be found in its charter), the relations of the government with public corpora- tions are governed rather by the rules of public law and are not much affected by the contract idea.^ In some of the cases decided by the courts of this country the necessity of the separate study and treat- ' See Merriwether v. Garrett, 102 U. S. , 472 ; and Pierce v. Boston, 3 Mete. Mass., 520 ; cf. Cooley, Taxation 2d. Ed. 17, 18. ' Butler V. Penna., 18 How. U. S., 402 ; infra, II., p. 3. ' See Dartmouth College v. Woodward, 4 Wheaton, 636. ADMINISTRATIVE LAW. IS ment of the administrative law as a part of the public law is made particularly apparent. For the result of I entrusting the development of the principles of the! public law to judges engaged for the most part in the study and application of the principles of the private law, and of the resulting failure on the part of such judges to distinguish public from private relations, hasi been the application to public relations of the princi-l pies of the private law. This is most unfortunate. For in some cases the result of the too great insistence on the idea of contract in these public relations has been to revive in our public law, principles which are characteristic rather of feudal than of democratic states. Thus the decision that a commonwealth which has relinquished its taxing power may forever be pre- cluded from reassuming it because in so doing it im- pairs the obligation of a contract, results in the forma- tion of a class of persons possessed of privileges of a public and not private character, and privileges which may never be taken from them. This was exactly the feudal idea.* Again the decision that a commonwealth, for the same reason, may not amend the charter of a private corporation is another instance of the same ten- dency. That the public policy of such a decision is bad may be seen from the insertion in the constitutions of most all the commonwealths of a provision which expressly allows charters to be amended in the case of corporations chartered after the putting in force of the constitution. Further the great expansion of the police power by the decisions of the United States Su- preme Court is an evidence also of the growing feeling * See New Jersey v. Wilson, 7 Cranch, 164 ; Cooley, Taxation^ 67 ; Burgess, Folitical Sciencey etc., I., 238. 14 THE SEPARATION OF POWERS. that the idea of contract has been applied unjustifiably in the relations of the public law.* The position of the administration thus, both when it acts as the man of business, of society, and when it represents the sovereign, is so peculiar that its legal relations must be set aside for separate treatment in any system of legal classification which has regard for actual conditions. ///. — Distinction of administrative law from private law. While administrative law has a sufficiently distinc- tive character to justify its assignment to a separate position in a scheme of legal classification, there are many cases in which it is extremely difficult to distin- guish it from other branches of the law, many cases also where practical considerations have such weight as to overbalance any desire for logical exactness. This is especially true of some of the points where the do- main of administrative law seems to touch upon that of private law. We find many rules of law which, if we abide by the definition that has been given of administrative law, viz.^ as that portion of the law which governs the relations of the administration, must be regarded as falling within its borders, but which at the same time have been enacted mainly with the idea of founding or strengthening purely private rights. Such for ex- ample are the rules of law governing the registration of legal instruments and the issue of patents. Such rules of law either alter the force of an existing right over against third persons or actually found a new * For the distinction between private and public law, see Benson v. Mayor, lo Barbour, N. Y., 223, 245. ADMINISTRA TIVE LA W. 15 private legal right and are thus private in character. On account of their character the usual practice is, notwithstanding the fact that they at the same time govern the relations of the administration, to regard them as a part of the private law. That is, all rules of law whose immediate purpose is the promotion of the rights of individuals are parts of the private law whether they govern at the same time the relations of the administration or not.* This was the rule of the Roman law. Ulpian says : " Puhlicum jus est quod ad statum rei RomancB spectat^ privatum quod ad sirigulorum utilitatem.^^ ^ IV. — Distinction from other branches of public law. The endeavor must also be made to distinguish ad- ministrative law from the other branches of public law. The distinction between administrative and con- stitutional law has already been indicated. While constitutional law defines the general plan of state organization and action, administrative law carries out this plan in its minutest details, supplements, and com- plements it.^ The distinction between the two is thus one more of degree than of kind. Both treat to a large extent of the same subjects, the latter more in detail than the former, while the latter devotes itself almost entirely to the consideration of the executive organs of the government, since they are the only ones which actually act and administer. The distinction between administrative and international law also is quite clear. While administrative law lays down the * Cf. Kirchenheim, op, cit.^ 22. * Insts., I., sec. 4. * See supra, p. 8. I6 THE SEPARATION OF POWERS. rules which shall guide the officers of the administra- tion in their action as agents of the government, in- ternational law consists of that body of usage which it is supposed that a state will follow in its relations with other states. While it is the guide of conduct of a state in its relations with other states, while its observance will conduce to peace and its non-observ- ance may lead to trouble, it still cannot be regarded as ' binding upon the officers of any government considered in their relation to their ovni government except in so far as it has been adopted into the administrative law of the state. On this account the German jurist Zom treats international law as external public law.* The usual method of legal classification assigns to the criminal law a place in the public law. If this method is correct it becomes necessary to distinguish the administrative law from the criminal law. Any at- tempt to make such a distinction, as indeed to distin- guish the criminal law from any of the clearly defined branches of the law, will be found, however, to present almost insurmountable difficulties. The conclusion is irresistible that from the scientific point of view the criminal law does not occupy any well defined position in the legal system separated in kind from the distinct branches of the law. It consists really of a body of • penal sanctions which are applied to all the branches of the law.^ A great many of the rules of all the branches of the law are found to require such sanctions in order to ensure their observance. Thus certain rules of law governing the relations of individuals one with "^ Das JReichsstaatsrecht, II., 419; cf. Gumplowicz, Das Oesterreichische Staatsrecht, 348. * Cf. Boeuf, op. cit., iv, ; Lightwood, The Nature of Positive Law, 396-402. AbMINISTRA TIVE LA W. 1 7 another are found to be practicably unenforceable under any system of private actions. The government, therefore, steps in and gives them a penal sanction. The necessities are the same in other branches of the law. Penal sanctions often become necessary. The rules of law imposing these sanctions come to form a system of law, to which the name of criminal or penal law is attached. This law sanctions and protects all branches of the law without itself forming a distinct branch of the law. But while this law of penal sanc- tion may not thus properly be regarded as a distinct portion of the law in the same way that the adminis- trative law is a distinct portion of it, still the appli- cation of sufficiently rigorous penalties to enforce obedience to the law and the preservation at the same time of the rights of the individual present problems of such importance as to demand for their solution separate methods of thought and treatment, and to have brought it about that the law which imposes penal sanctions is regarded, and properly regarded, as forming a separate part of legal study. A science of penalties, viz.^ penology, has also been developed, in accordance with whose theories the criminal law is moulded. It is thus seen that the rules of law which have been protected by a penal sanction may be really administrative in character. If they are of this char- acter the student of administrative law may not, simply because they are thus protected, dismiss them from his consideration on the ground that they are a part of the criminal law. For, indeed, ^, one of the most common and efficient means of • enforcing a rule of administrative law is to give it a \ penal sanction, and the mere affixing of a penalty to i8 THE SEPARATION OF POWERS, the violation of a rule of administrative law does not deprive such rule of law of its administrative charac- ter/ Nor does the mere imposition of a penalty of necessity make the rule of law to the violation of which the penalty is imposed a rule of criminal law in the sense that it must be strictly construed.^ This comes out particularly clearly in the distinction which is so often made between crimes and police offences.^ ' See Infra, II., p, io6. •See Taylor et al. v. U. S., 3 How., 197, 210, where Judge Story says: •'The judge was therefore strictly accurate when he said [in his charge] 'it must not be understood that every law which imposes a penalty is therefore, legally speaking, a penal law, that is a law which is to be construed with great strictness in favor of the defendant. Laws enacted for the prevention of fraud, for the suppression of public wrong or to effect a public good, are not, in the strict sense, penal acts although they may inflict a penalty.' It is in this light I view revenue laws, and I would construe them so as most effectually to ac- complish the intention of the Legislature in passing them." See also Cliquot's Champagne, 3 Wall., 114, 145 ; Smythe v. Fiske, 23 Wall., 374. ^See Wharton, Crimhial Law, 9th Ed., I., sees. 23a and 28 ; also Oshkosh v^ Schwartz, 55 Wise, 483 ; Commonwealth v. Willard, 22 Pickering, 476 ; U. S. V. Barrels of Spirits, 2 AbbottTs U. S., 305, 314 ; Gooley, Taxation, 2d Ed., 270, CHAPTER III. THE THEORY OF THE SEPARATION OF POWERS. It has been shown that administration is to be found in the activity of the government exclusive of that of the legislature and that of the courts, i, e, in the activ- ity of the executive organs of the government. The differentiation of three somewhat separate governmental authorities was the result of the political history and experience of Europe and especially of England. His- torically it may be shown that all governmental power was at one time expressed in all cases in final instance by a single organ, viz., the early mediaeval monarch. Experience proved, however, that certain expressions of it should be made by the state, i, e. by the constitu- tion-making power, and not by the government at all. This resulted in the distinction of the state from the government. Experience also showed that in the case where this governmental power should be expressed by the government it is a deliberative body largely inde- pendent of any other governmental organ which should act in a series of instances ; that in another series it is an executing organ, largely separate from and inde- pendent of all other governmental authorities which should act ; and that finally in another series of cases duties should be imposed upon a third series of au- thorities forming the judiciary. These three authorities 19 20 THE SEPARATION OF POWERS. were called respectively the legislature, the executive, and the judicial authority. This differentiation of govern- mental authorities was first noticed in modern times by Locke and Montesquieu, the latter of whom based upon this fact his famous theory of the separation or distribu- tion of powers. In his great work on the Esprit dea Lois, he first distinguished three great powers of govern- ment, viz.y the legislative, the executive, and the judicial, and then insisted on the importance of entrusting each of the powers to a separate authority distinct from and independent of the others.* This theory was very gen- erally adopted by the political science of the time im- mediately succeeding Montesquieu, and, in a somewhat more extreme form than was probably believed in by Montesquieu himself, came to be regarded as almost a political axiom, which should lie at the basis of the political organization of all civilized states.^ Modern political science has, however, generally dis- carded this theory ^ both because it is incapable of ac- curate statement, and because it seems to be impossible to apply it with beneficial results in the formation of any concrete political organization. While it is true, says a judge of the supreme court of North Carolina * that "the executive, legislative, and supreme judicial powers of the government ought to be forever separate and distinct, it is also true that the science of govern- ment is a practical one ; therefore, while each should firm- ly maintain the essential powers belonging to it, it cannot * Esprit des Lois, book xi., chap. vi. ' For example, the Constituent Assembly of France laid it down in 1789 as a rule that a country in which the separation of powers is not determined, does not have a constitution. Declaration des droits de Vhomme et du ciioyen, art. 16. ^ Kirchenheim, op. cit., I. * Brown v. Turner, 70 N. C, 93, 102. THEORY OF THE SEPARATION OF POWERS. 21 be forgotten that the three co-ordinate parts constitute t one brotherhood whose common trust requires a mu- ) tual toleration of the occupancy of what seems to be a * common because of vicinage ' bordering on the do- mains of each." ^ The flaw in Montesquieu's reasoning, and in that of his followers, was the assumption that the expressions of the governmental power by different authorities were different powers. Seeing that the most important function of the English Parliament was the making of laws, they assumed that the sole duty of the Parliament was the making of laws, and that it alone possessed that power. This, indeed, as every one knows, was not the fact, but even had it been the fact, all that could be logically deduced from it was that the power of the English legislature consisted in the making of laws, and that this was the function of the Parliament alone. But they went a step farther, and, basing their generalization upon an insufficient induction, concluded that what was true of England, or rather what they supposed was true of England, was true everywhere or should be true everywhere. They stated as a truth of political science what was simply a local phenomenon. For just as English experience was at the basis of the differentiation of powers which Montesquieu supposed he had discovered and which undoubtedly existed in a general way in England, so continental experience is at the basis of a somewhat dif- ferent differentiation of powers. In no two countries do we find exactly the same sphere of action assigned to any one of the governmental authorities which may be differentiated. In some, for example, the executive authority possesses a large power of control over legis- * Cf. Sarwey, op. cit., 26. 22 THE SEP AHA TION OF PO WERS. lation and over tlie policy of the government, in others almost none ; in some the legislative authority has a large power over the formation of the executive au- thority, in others almost none.^ What ought in theory to be the sphere of action of each of the different gov- ernment authorities and what ought to be the sphere of action of the state, L e. the constitution-making au- thority, are matters which must very largely be governed by the history and political needs of the particular coun- try, and any attempt to impose on a country any hard and fast rule derived either from a priori reasoning or from any inductive generalization, based upon the ex- perience of other countries, is rather more apt to meet with failure than success. But while Montesquieu's theory is therefore lacking in both scientific and practical foundation, still it must be confessed that he stated a principle which has had an immense effect upon the political systems which have been elaborated since his day. His theory still lies at the basis of most political organizations at the present time. It is, however, subject to many excep- tions which exceptions are not the same in different states. This theory may be stated as follows. The action of the legislature, which is commonly called the legislative power, but which is in reality merely an expression of the governmental power by the legisla- ture, consists for the most part in the enactment of general norms of conduct for all persons and authorities within the state ; the action of the executive authority, commonly called the executive power, is the applica- tion of these norms to concrete cases ; and finallv the action of the judges or the courts, commonly called ' Cf. Judge Christiancy's remarks in People v. Hurlburt, 24 Mich., 44, 63. THEORY OF THE SEPARATION OF POWERS. 23 the judicial power, is the settlement of controversies arising between individuals or between individuals and the governmental authorities as to the application of the laws. It may further be added that experience has shown that in general it is best that these different authorities be confined to the exercise of the powers respectively assigned to them by this theory. There must, however, be important exceptions to any such rule ; and these exceptions are not the same in the different states, nor should they be the same, since the political experience and needs of no two states are the same. So long as the discussion as to the theory of the separation of powers is carried on from the stand- point of merely what ought to be, little difficulty arises, but if once the scientific theory is formulated as a legal rule, if once it is adopted in the positive law, the diffi- culties that arise are legion and are insoluble — insolu- ble simply because the theory is incapable of accurate statement; and therefore the decisions of the courts are necessarily very largely the expression of the sub- jective opinions of the judges making them. Judge Chris tiancy frankly admits ^ that the various powers which may be differentiated in accordance with the theory of the separation of powers differ in extent in different states, which is simply another way of saying that the opinions of judges and publicists differ. Nevertheless there is the rule of law that the legislative authority shall not exercise any judicial or executive powers, that the executive shall not exercise any legis- lative or judicial powers, and that the judicial authority shall not exercise any legislative or executive powers^; ■^^ 1 People V. Hurlburt, 24 Mich., 44, 63. ' See the Constitution of Massachusetts, art. xxx., pt. i. _^ 24 THE SEPARATION OF POWERS, and an infringement of the rule will lead to the inva- lidity of the act of the authority so disobeying the rule of the constitution/ The student must therefore ex- amine the constitution of his own state and its inter- pretation by the courts of that state where they have the right to interpret the constitution, if he would know how far the principle of the separation of powers has any legal effect. This is particularly true of the United States both in its national and commonwealth organizations, the principle of the separation of powers being regarded in many cases as a fundamental rule in this country. But he must not expect that the rule in the national government can be reconciled with the rule in the commonwealth governments or that the rules of any two of the commonwealth governments must necessarily be the same. Thus it has been held in some of the commonwealths that even in the ab- sence of constitutional restriction the legislature may not grant a divorce, while in other commonwealths this power has been recognized by the courts as be- longing to the legislature.'^ Again it has been held that the courts may not act in the incorporation of municipalities in accordance with the provisions of general incorporating acts, since they are judicial bodies and this is an administrative function.^ On the other hand, the courts of other commonwealths have regarded this action as perfectly proper.* » Gordon v. U. S.. 117 U. S., 697. • Cooley, Constitutional Limitations, 6th Ed., 128, 133. • People V. Bennet, 29 Mich., 451 ; People v. Nevada, 6 Cal., 143. • Kayser v. Trustees, 16 Mo., 88 ; Galesburg v. Hawkinson, 75 111., 152 ; cf. Dillon, Municipal Corporations , 4th Ed. I., 265. See also for the construc- tion of what is judicial power under the national constitution Hayburn's case, 2 Dallas, 408, 409 ; U. S. v. Yale Todd in note to U. S. v. Ferreira, 13 How., 40, 52 ; Gordon v. U. S., 2 Wallace, 561 ; Miller on The Constitution, VII. CHAPTER IV. EXCEPTIONS TO THE THEORY OF THE SEPARATION OF POWERS. /. — Executive functions of the legislature. In no constitutional state can the legislature be shut out from all participation in the work of administration. The organic law of all states, even of those which pre- tend to adopt the theory of the separation of powers, provides that some of the most important administrative or executive acts shall be performed not by the execu- tive but by the legislature. One of these exceptions to the rigid adoption of the principle of the separation of powers is to be found in the usual constitutional provision that the assumption of all obligations by the state shall be made only with the consent of the legislature or upon its initiation.^ Again we find that the constitutions of most states give to the legislature the power of fixing the budget of the expenses of the government. All such acts performed by the legislature, although they owe their legal force to the fact that they have been performed by the legislature or with its consent, and although they are put into the form of statutes, are nevertheless in fact administrative acts, ' Sometimes such obligations are to be assumed, not by the government at all, but by the constitution-making power. See e. g. New York Constitution, art. vii., sections 9-12. 25 26 THE SEPARATION OF POWERS. ^. e, acts resembling more the acts usually performed by the administration than those usually performed by the legislature. Therefore in those states in which a formal promulgation of purely legislative acts, i, e, general rules of conduct, by the executive authority is necessary, neither do such acts need for their validity such a formality, nor is such a promulgation of them made in practice.^ Still in form such acts are not administrative acts, but are what have been called by some writers, who lay great stress on the theory of the separation of powers, formal though not material statutes.^ Other important acts not of a legislative character performed by the legislature, but which are not even put into the form of statutes, result from the participa- tion of the legislature in the determination of the executive peTsonnel. Thus in the United States a branch of the legislative authority is called upon to approve the appointment of almost all the important executive officers or executive officers are elected by the legislature.^ Further, the legislature very often possesses the power of removing executive officers from office either by the process of impeachment or by declaring its lack of confidence in the executive authorities. //. — Legislative functions of the executive authority. Just as the legislature cannot be shut out of all par- ticipation in the work of administration so the executive authority cannot be deprived of all participation in the work of legislation. The executive cannot be assigned ' Sarwey, Allegemeines Verwaliungsrechty 26. • Cf. ibid. * Infra, pp. 103, 135. EXCEPTIONS TO THE THEORY, 27 to the position of a mere executing officer. Such an application of the theory of the separation of powers has never been accepted in monarchical governments or even in most republics and would lead to most deplorable results.^ The veto power is one of the most noticeable legislative functions discharged by the ex- ecutive.^ It is recognized almost everywhere in the United States as belonging to the executive, at any rate in a limited form.^ The power of the executive authority to initiate law is also a legislative function. While it is not granted to the executive authority in the United States in either national or commonwealth governments, it is universally recognized as belonging to the executive in France, England, and Germany. The American executive has, however, usually to recommend to the legislature for adoption such meas- ures as he shall deem expedient.^ But the executive authority should participate in the work of legislation not only by the power of veto and of initiating law but it also should have the power of issuing orders of more or less general application. The needs of the government make it necessary that many details in the law be fixed less permanently than by statute. No legislature, however wise or far-seeing, can, with due regard for the interests of the people, which differ with the locality and change with the passage of time, regulate all the matters that need the ' Sarwey, op. cii., 21. ' Montesquieu himself recognized the inadvisability of confining the executive to the function of execution and approves expressly of granting to the executive the veto power. Esprit des Lois, loc. cit. ^ United States Const., art. i., section 7, par. 2 ; Stimson, American Statute Law, section 305. * C/. U. S. Const., art. ii., sec. 3. 28 THE SEPARATION OF POWERS. regulation of administrative law. A large discretion must be given to the administrative authorities to adapt many general rules of law to the wants of the people. Even though the organic law of the country may in the main confine- the executive authority to the execution of the resolutions of the legislature, it still either recognizes in the chief executive authority the power of legislation to fill up details in the administrative law, or it permits the legislature to delegate such a power to him or his subordinates, where no such con- stitutional power is recognized as belonging to him/ This power of the executive authority to issue gen- eral rules is known as the ordinance power ; and the ordinances which are issued as a result of the exercise of this power are of three kinds, viz.^ independent ordinances, supplementary ordinances, and delegated ordinances.^ Independent ordinances are those ordinances which are issued by the chief executive authority as the result of his constitutional power to fill up all those places in the law which have not been touched at all by the legislature. In so far as their content is concerned they relate to those portions of the law which have not been regulated in any way by statute. Such an independent power is found as a rule only in mon- archical governments. Supplementary ordinances, like independent ordi- nances, are issued by the chief executive as a result of his constitutional power of ordinance. They differ, * Sarwey, op. cit. 31 et seq. ; cf. U. S. v. Eliason, 16 Peters, 291, 301; Sampson v. Peaslee, 20 How, 571 ; The Brig Aurora, 7 Cranch, 382, 388 ; Field V. Clark, U. S. Sup. Court, Oct. term, 1891; U. S. v. Barrows, i Abbott, U. S. 351. ' Gneist, Das Englische Verwaltungsrecht, 1884, 127. EXCEPTIONS TO THE THEORY. 29 however, from independent ordinances in that they do not attempt to regulate subjects that have not been regulated at all by the legislature, but are issued to -v supplement already existing statutes, and to fill up the places in such statutes which have not been regulated in detail by them, or to make arrangements for their execution. The power to issue this class of ordinances is found only in monarchical governments or in re- publics where monarchical traditions are strong. Delegated ordinances are issued by any of the ad- ministrative authorities indiscriminately, not as a re- sult of any constitutional power of ordinance in the chief executive, but as a result of a direct delegation by the legislature of its power of legislation. These delegated ordinances, like the supplementary ordi^ nances, affect those subjects which have been already regulated in a general way by the legislature, but all of whose details have not been thus fixed. These ordinances we find in all states and in all branches of the administration. They are really the most import- ant of all the ordinances to be considered, and are by far the most numerous. ///. — Executive functions of the judicial authorities. ^ Although the general rule may be that the courts shall be confined in the main to the decision of contro- versies between individuals, nevertheless in many instances the needs of government make it seem advis- able to entrust the courts with functions somewhat administrative in character. While this may be said of all states, it is especially true of those which have not really striven in their law to reach any clear dis- tinction between judicial and administrative functions. 30 THE SEPARATION OF POWERS. Thus in the commonwealths of the United States and England where the exceptions to the logical adoption and application of the theory of the separation of powers are numerous, judicial officers from time im- memorial have been entrusted with the discharge of executive or administrative functions/ "We in the United States are indebted for this con- fusion to England, which for a long time did not attempt to separate the judicial and administrative authorities. The justices of the peace have been at the same time judicial and highly important adminis- trative officers. As almost all our important local administrative officers originated in the justices of the peace, they have been regarded by the courts as inferior statutory tribunals, subject to the never ceasing interference of the courts ; and this fact has led to the failure in many cases to distinguish at all in our law and political thought between judicial and adminis- trative functions and to there being no opposition to the actual conferring of functions upon the courts which would seem to be administrative in nature. A most noticeable instance of this is found in the power given to the supreme court in New York to approve the acts and determinations of various administrative commissions such as the rapid-transit commission, such acts being of no effect until they have been so approved.^ ^ In certain cases this has been held to be unconstitutional, supra, p. 24. ' E. g. see New York laws, 1875, chap. 606, section 21 ; New York Con- stitution, art. iii., section 18. CHAPTER V. THE RELATION OF THE EXECUTIVE TO THE OTHER AUTHORITIES. The principle of tlie separation of powers not only involves the existence of three somewhat separate authorities, but also insists that each authority shall be independent of the other authorities. But just as it is impossible to distinguish clearly three powers and authorities of government, so is it impossible that any of the three authorities shall be absolutely independent of the other two. As administrative law has to do with the position of the executive it is necessary to examine its relations with the other two authorities. /. — Relation to the legislature, 1. The legislature the regulator of the administration. — In all countries the action of the executive is sub- ject to the control of the legislature. In the first place the legislature has the power to lay down norms in accordance with which the executive is to act. The legislature has been called the regulator of the administration.^ This does not mean, how- ever, that the executive can act only in the execu- tion of the resolutions of the legislature, and that it possesses no discretion. Even in the United States, where the power of the legislature to regulate the * Sarwey, op. cii., 37 ; Gneist, Der Rechtsstaat, 181. 31 32 THE SEPARATION OF POWERS. action of the administration has been carried as far as anywhere, it is held that there is a sphere in which the administration may move without looking to a statute of the legislature for its authorization. Thus Justice McLean says in an opinion given in the United States Supreme Court. ^ A practical knowledge of the action of any one of the great departments of the government must convince every person that the head of a department, in the distribution of its duties and responsibilities, is often compelled to use his discretion. He is limited in the exercise of his powers by the law ; but it does not follow that he must show a statutory provision for everything he does. No government could be administered on such princi- ples. To attempt to regulate by law the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out, and limitations imposed on the exercise of its powers, there are num- berless things which must be done that can neither be antici- pated nor defined, and which are essential to the proper action of the government. Hence, of necessity, usages have been estab- lished in every department of the government, which have be- come a kind of common law, and regulate the rights and duties of those who act within their respective limits.' Further, it is generally recognized in the United States that there is in the executive authority a latent power of discretionary action which is denominated the war power, and which is, in times of extraordinary danger, capable of great expansion. This was brought out most forcibly in the critical period of our civil war.^ The same general principle is true in all states.* * U. S. V. McDaniel, 7 Peters, i., 14. ' See also In re Neagle, 135 U. S., i., 64-68, which claims somewhat similar powers for the President as a result of his duty to see that the laws are faithfully executed. Infra, p. 64. » Cf. W. A. Dunning on " The Constitution in Civil War," in the Pol. Set. Qu., III., 454. ■* C/. Sarwey, See infra, II., p. 262. ( 34 THE SEPARATION OF POWERS. II. — Relation to the courts. In all countries the executive authorities are subject also, to some extent, to the control of the courts. In all states many of the acts of the administration may- be reviewed by the courts. The extent and character of the control which the courts may exercise over the administration, depend upon the character of the act to be controlled. From the point of view of this con- trol the acts of the administration may be classed under four heads, viz.^ political acts, legislative acts, acts in the nature of contracts, and special administra- tive acts not of general application. 1. Political acts. — By political acts are meant those acts whether of general or of special application done by the administration in the discharge of its political functions, such as the carrying on of the diplomatic re- lations of the country, the making of treaties, the com- \ mand and disposition of the military forces of the government, the conduct of the relations of the execu- tive with the legislature. The general rule in all coun- tries is that the courts have no control over this class of acts. Where the principle of ministerial responsi- bility to the legislature has been adopted it is believed that this will be sufficient to insure the impartial and wise performance of these political acts. Where the principle of popular responsibility has been adopted it is believed that this will be sufficient, and that it is unwise to allow the courts any control whatever over the political functions of the executive.* ^ E. g. see Nabob of Carnatic v. East India Co., i Vesey Jr., 375, 393, 2 Id.^ 56, 60 ; Penn, v. Lord Baltimore, i Vesey, 467 ; Cherokee Nation v. Georgia, 5 Peters, i, 20 ; Luther v. Borden, 7 Howard U. S., i ; and Mississippi v, Johnson, 4 Wallace, 475. EXECUTIVE AND OTHER AUTHORITIES. 35 In France, where the executive is more independent of the courts than in any other country/ a much wider interpretation has been given to political acts than is given in other countries. The courts have gone so far as to hold that acts of a very arbitrary character and restrictive of private rights, which were taken to pro- mote the public safety in time of public excitement, were of a political character.^ 2. Legislative acts, — The legislative acts of the administration are to be found in the ordinances which it has the power to issue. The rule as to the control which the courts may exercise over them is in all countries about the same. The courts have the same power over them as the courts of the United States have over the statutes of the legislature, i. e, they may interpret them and in most cases declare them void or refuse to enforce them in case they are contrary to the law.^ 3. Cont/ractual acts, — The general tendency at the present time as to the control which the courts possess over the contractual acts of the administration is to admit a pretty full control. England and the United States are the most backward in this respect.^ 4. Administrative acts of special application. — The fourth class of acts distinguished are special adminis- trative acts not of general application. In the United States they are called indiscriminately orders, decisions, ' See Code Penal, art. 137. ' Thus the administrative authorities have, in order to prevent the publication of a journal which, it was claimed, was exciting the passions of the people, wrecked its office, and the courts have held that this was a political act, and not subject to review. Arr^t du Conseil d*£iat, 5 Jan., \%^e^, affaire Boule ; cited in Ducrocq, Trait/ du Droit, Administratif, I., section 64 ; cf. Aucoc, Confer- ences sur r administration, etc., 441, ei seq, ^ Infra, p. 74. *See infra, II. p. 149. 36 THE SEPARA TION OF PO WERS, precepts, and warrants. By tlie performance of these acts the administrative authorities perform a large part of their duties, and in their performance they are coming into continual conflict with the individuals whom they govern. Some sort of a control over these acts is extremely necessary; and in the kind and extent of the control provided in different states we find greater differences than exist in the case of the control provided for the three other classes of acts. The four countries whose law is being considered may, from the point of view of the control possessed by the courts over this class of acts, be divided into two classes. In the first are found England and the United States. The rule in these countries is, that when an individual act of the administration is not of a political or a contractual character the courts have a very large control over it. In many cases they may annul it, amend it, interpret it, and prevent the administration from proceeding to execute it.* In the second class of countries, in which are to be found France and Ger- many, the rule is completely different. The French principle of the independence of the administration prevents the courts from exercising any sort of a con- trol over such acts. This principle has been adopted in Germany. But in both countries in order to render justice to the individual there have been established, for the review and control of certain of these special administrative acts, special tribunals known as admin- istrative courts, organized quite differently from the ordinary courts and not forming part of the regular judicial system.'^ ^ Infra, II., p. 200. *For the development of this subject in detail, see infra^ II., pp. 217, 240. EXECUTIVE AND OTHER AUTHORITIES. 37 ///. — The position of the executive. It 18 now possible, after this consideration of the relations of the executive authority, with the legisla- ture and the courts, to see what is the position of the executive authority. In the United States the execu- tive authority is almost entirely independent of the legislature, but its acts not of a political or contractual character are subject in many cases to the control of the courts which are to keep the executive within the limits of the law. In France the executive authority is subject to the control of the legislature as a result of the adoption of the principle of ministerial responsi- bility to the legislature. Its relation to the courts is one of almost absolute independence. In Germany the executive authority is independent of the legisla- ture, and to a large extent also of the courts. In England the executive authority is subject to the con- trol of both the legislature and the courts. Its only acts which are independent of the courts are its polit- ical acts, and certain of its contractual acts. The result is that the executive authority is, from the administrative point of view, the strongest in Ger- many and France. In France this strength is some- what weakened over against the legislature by the existence of the parliamentary responsibility of the important executive organs, but is very great over against the courts. Therefore, on the continent of Europe, administration, the function of the executive authority, will be found to be more important than in the other countries ; and it is on this account that the study of this function of administration is pursued there with greater interest than in either the United States or England. CHAPTER VI. TERRITOEIAL DISTRIBUTION OF ADMIITISTRATIVE FUNCTIONS. /. — Participation of the localities in administration. The ends of the state which it is the duty of the government to realize may be called public ends in distinction from the ends of individuals. The term public ends does not, however, indicate simply those ends which are to be realized through the instrumen- tality of the central government. For, though the state is an indivisible union of persons within a given territory, still the people forming the state are, in all countries of any size, organized in a number of local communities which have been called into being through the simple fact that the people living within a defined district have common needs which are peculiar to themselves. If the ends which such people follow in their local organizations are recognized by the state as reaching beyond the interests of the individual then such ends become public ends, just as much as the ends which the state attempts to have realized through the central governmental organization. For the mere fact that such ends may be regarded by the state as public ends does not make it necessary that the gov- ernment shall act solely or mainly in the attainment of these ends through its central organization. The 38 CENTRAL AND LOCAL GOVERNMENT. 39 state everywhere grants, directly or indirectly, to the localities powers to act in the attainment of this class of public ends and provides that its central govern- mental organization shall step in simply to assist and control the localities. In other words central and local government work together in the attainment of the ends of the state. The state may not, it is true, recog- nize that there is any actual sphere of local govern- ment at all in the sense that the localities have by the constitution powers, with the exercise of w^hich the central government may not interfere. The localities may be left largely at the mercy of the central gov- ernment. This is veiy largely true of all countries, though in the United States the largest of the local- ities, viz,, the commonwealths, are protected by the United States constitution against the central govern- ment, and there is arising the belief that the divisions of the commonwealths should in like manner be pro- tected by the commonwealth constitutions against the commonwealth governments.' In many countries also, notwithstanding the absence of constitutional pro- visions assuring to the localities a sphere of locab government, the people have become so convinced of the necessity of the existence of a degree of local au- tonomy that the legislature has provided that within certain limits the localities shall act as they see fit, in the pursuit of local public ends. As to what shall be the sphere of local autonomy, whether it be fixed by the constitution or by legislation, it is impossible to lay down many general principles of universal application. It may, however, be said that the localities in a state may not with due regard to the unity of the state be * Burgess, " The American Commonwealth," Pol. Sci. Qu., I., 32. 40 - THE SEPARATION OF POWERS. permitted to exercise powers of legislation with re- gard to private relations. Of the four important coun- tries only one has seen fit to grant by its constitution to the localities such a legislative power. This is the United States, and the evils resulting from the conse- quent diversity of the private law are so great that in more than one instance the demand is being made either for national regulation of private relations or for the devising of some method by which the law may be made uniform.^ In the second place it may be said also that, for the same reasons, the localities should possess no powers with regard to the administration of justice, that the judicial system should not be subject to local regula- tion. Here again the United States is the only one of the four countries which permits its localities to organize courts that are to decide the controversies arising among its citizens relative to their private rights. When, however, we come to the function of administration the demand for harmony and uniform- ity is not so imperious. Even in France, the home of jcentralized government, it is recognized that, while the country can be governed from the centre better than from the localities, it can be administered better in the localities than from the centre. But while this princi- ple may be accepted as generally true, it must also be admitted that there are certain branches of administra- tion in which the localities can in the nature of things not act at all. Thus the localities can have no duties to perform in the administration of foreign relations. ^ See Munroe Smith on " State Statute and Common Law " in P^?/. Sci. Qu., III., 147, 148. The recent appointment by the various commonwealth legislatures of commissioners for harmonizing the law in important matters is an evidence of the evils of diversity. CENTRAL AND LOCAL GOVERNMENT. 41 Further, in certain other administrative branches, the demand for uniformity in administrative methods is so imperious, that if the localities are permitted to act at all wdthin them, they must act subject to the control of the central government. This is true of the admin- istration of military, judicial, and financial affairs. In these branches the localities cannot be permitted to have any powers of independent action, but must be regarded as agents of the central government and sub- ject to its control. The result of this process of exclu- sion is that the sphere of local administrative autonomy, if recognized at all, is to be found in that branch of administration known as internal affairs. Even in this branch, as in the others just mentioned, in many cases the localities must, on account of the necessity of administrative uniformity, be subjected to the control of the central government. Thus the administration of the public health and the public charity and the preservation of the peace cannot be left altogether to the localities independent of all central control. What shall be the spheres of central and local administrative action in a given state, and what shall be the kind and extent of central control exercised over the localities where they are regarded as the agents of the central government, are matters to be determined by the posi- tive law of the particular state ; and the determinations reached by different states differ considerably one from the other, and are based upon the differing social and political conditions obtaining therein.* //. — English method. Two general methods of providing for the participa- tion of the localities in the work of administration * Cf, Stengel, Organisation der Preussischen Verwaltung, 11 et seq. 42 THE SEPARA TION OF PO WERS. have been adopted. By the one all the duties to be performed by the localities, both as agents of the cen- tral government and as local governmental organiza- tions, are fixed in detail by the legislature of the central government.* Where this system of enumera- tion by the legislature of the povrers of the localities is adopted, as is the case in England and the United States, no sphere of independent local action is assigned to the localities. They may, it is true, be regarded as local corporations with the power of owning property and of suing and being sued, but they have no sphere of action of their own. They are regarded simply as districts of the central government of the state or commonwealth, and their officers are simply agents of that central government acting in the local divisions. This is the case in the smaller localities of the United States. This idea is well brought out in the case of Hamilton Co, v. Miglieh^ where the court says that the county is merely a division for the purposes of general commonwealth administration, and in the case of Lorilla/rd v. The Town of Monroe,^ where it is held that " town officers," such as assessors, collectors, etc., are public commonwealth officers, and not officers of the town corporation for whose action the town is responsible. Full municipal corporations are, from this point of view in about the same position as these quasi corporations, as the towns and counties are called. ^ In case the legislative power as to administrative matters is, as in Germany and in the United States, given to the largest divisions of the state, viz., the commonwealths ; the legislatures of these divisions have the power to arrange the administrative system as they see fit within the boundaries of the common- wealth. 8 7 Ohio St., 109. *ii N. Y., 392. CENTRAL AND LOCAL GOVERNMENT. 43 Their powers are all enumerated, and it cannot be said that they have by the constitutions or the statutes many powers of independent local action.^ Under such a system of legislative enumeration the needs of uniform administration are, it is thought, satisfied by the exer- cise by the legislature of its power to change the duties and increase or decrease the powers of the localities. The continual interference of the legislature resulting from the exercise of this power has had such evil results in the United States that the attempt has in many cases been made to limit in the commonwealth constitution the power of special and local legislation possessed by the legislature. But as the general acts with regard to local administration usually follow the same method of enumerating in detail the powers and duties of the local authorities, they have in some cases, on account of the rigidity and inflexibility of their pro- visions and of their inadaptability to local needs, proved almost as unsatisfactory as the habit of special and local legislation. This method of regarding the locali- ties as in all cases the agents of the central govern- ment, and of enumerating in detail their duties and powers, makes unnecessary any further central control over the administration in the localities. The control over localities and over local officers is by this system a legislative control. ///. — Continental method. The other method of permitting localities to partici- pate in the work of administration depends upon clearly distinguishing between that administrative work which «See U. S. V. B. & O. R.R. Co.. 17 Wall., 322; cf. Dillon, Municipal Corporations, 4th edition, I., 145. > 44 THE SEPARATION OF POWERS. needs central regulation and that which can with ad- vantage be entrusted to the localities. The delimita- tion of a sphere of local action is accomplished by the determination of those matters which need for their efficient treatment uniformity in administrative action, and which should therefore be attended to by the cen- tral administration. What is left after the subtraction of these matters from the whole sphere of administra- tion constitutes the sphere of local administrative action. The regulation of the matters falling within this sphere of local action is then given by general grant to the local corporations and their officers. By this method the local corporations are not authorities of enumerated powers but may exercise any power which has not been expressly denied to them, or has not been expressly given to the central administration. This is the method very generally adopted on the con- tinent of Europe.^ Now if the localities were permitted to determine in concrete cases their competence there would be danger of disintegration through their at- tempts to usurp functions not recognized as local. Therefore, where such a system of distributing admin- istrative powers has been adopted, the power is given to the central administrative authorities to step in and prevent the local corporations or authorities from mak- ing such usurpation. Further, as all administration demands pecuniary resources and as the exercise of the taxing power by the localities may result in the disor- ganization of the general financial system of the state, the central legislature usually fixes what kinds of taxes the localities may raise, and permits the central admin- istrative officers to exercise a general control over the * Infra^ p. 266. CENTRAL AND LOCAL GOVERNMENT. 45 administration of the local finances in order that in this way extravagance may be prevented. Finally, while it may be recognized that the local corporations have a sphere of action of their own in which they act subject to the central administrative control, at the same time the central government may under this system recognize that the localities are also in certain branches agents of the central government. So far as this is the case the localities must be subjected to some sort of central con- trol ; and this control is usually as in the other cases an administrative control. IV. — Sphere of central administration. But, as has been indicated, there are certain branches of administration where, in the nature of things, the localities cannot act at all or cannot act to the same advantage as the central administration. For these branches the central government forms a series of offi- cers unconnected in any way with the local corpora- tions. The tendency in the United States has of late years been to increase the number of such administrative services attended to by the central government. Thus the customs and the indirect taxes, formerly often attended to by local officers,^ are now entrusted to offi- cers of the central government.^ In the commonwealths all such matters as factory inspection, railroad super- vision, the control of pauper lunatics in some cases, and ' Cf. The History of Tariff Administration in the United States, by John D. Goss in the series of Studies in History, Economics, and Public Law, edited by the University Faculty of Political Science of Columbia College, I., No. 2, pp. 12, 15. ' In Germany customs and indirect taxes are attended to by the common- wealths under the supervision of the imperial government. Imperial Constitu- tion, arts. 35 and 38; cf. Meyer, Lehrbuch des Deutschen Verwaliungsrecht, II. 310 et seq ; 335. 46 THE SEPARATION OF POWERS. a whole series of matters are attended to by eom- monwealtli officials unconnected in any way with the local corporations. In all countries these central officers, if we may so call them, are subject to quite a strict central administrative control. As a result of these arrangements which we find in all countries, the details offering considerable variety, we conclude that not only is the function of admin- istration largely separated from the functions of legislation and the rendering of judicial decision, and entrusted in most cases to special authorities, but also that these special administrative authorities are in all states of two kinds, viz,^ central and local, while in some states the local authorities may further be subdivided into commonwealth and local authorities. As the law in the United States distributes what are usually regarded in a unified government as central powers between the national and the commonwealth govern- ments, this order will be so changed in the follow- ing pages as to consider as central authorities both federal and commonwealth authorities, and as local only those subordinate commonwealth authorities having a territorial competence within the limits of a commonwealth. Of these two classes of authorities the central authorities have to attend to those mattei^s which by the law of the land have been recognized as general in character, and where the central control over the local- ities is an administrative one, have to exercise that con- trol. The local authorities on the other hand act as agents of the central government, and are local cor- porations with, in some states, their own sphere of CENTRAL AND LOCAL GOVERNMENT. 47 independent local action; and in all cases are sub- ject to a central control which in accordance with the method of distributing administrative duties among the localities is either a legislative or an administrative control. BOOK II. CENTRAL ADMINISTRATION. Dwision L — The Executive Power and the Chief Executive Authority, CHAPTER I. THE EXECUTIVE POWER AND THE EXECUTIVE AUTHOEITY IN GENERAL. The organization of a chief executive authority, and the definition of the executive power which should be entrusted to it, are problems which have always been difficult of solution for both political scientists and constitution makers. The first difficulty which pre- sents itself is the organization of the chief executive authority. Shall it be a board or one man ? A board ensures deliberation, and by many has been supposed to be a preventive of executive tyranny; the one- headed form is more liable to produce quick and en- ergetic action. The desire to produce this result has in almost all cases been so great that the one-headed form of the executive authority is now almost univer- sally recognized as the proper form. The next great difficulty has been found in the determination of the 48 EXECUTIVE POWER IN GENERAL. 49 extent and character of the power which shall be en- trusted to the chief executive authority. Both practi- cal men and students have always had great difficulty in obtaining a clear conception and an adequate expression in their governmental organization of their conception of the power to be given to their chief executive authority. The cause of this difficulty is twofold. The first cause of difficulty has come from the theory of the separation of powers. This theory insists that the executive authority should both have in his hands all of what is regarded as the executive power and be confined to the exercise of the executive power. The experience of the world, however, goes to prove that, if such an attempt is made, the executive authority tends to become either tyrannical or in- capable : tyrannical, if it have the entire executive power ; incapable, if it have no other than the executive power. Men have therefore been compelled to abandon the realm of theory and to allow themselves to be governed in their determination of the power to be given to the executive authority by the history and needs of the country for which they were forming a constitution, with the natural result that the conceptions of the character and extent of the executive power which the constitutions of existing states present are quite different the one from the other. The second cause of the difficulty of determining what shall be the power entrusted to the chief execu- tive authority is to be found in the failure, which is so often made, to recognize that what is called the execu- tive power really consists of two functions. These are the political or " governmental " function, as the French call it and the administrative function. These two 50 CENTRAL ADMINISTRATION. functions it is somewliat difficult to distinguish, but the distinction does exist, and is capable of perception. A noted French writer on administration has, as clearly aa any one, brought out this distinction, which is more pronounced in France than elsewhere, and has an im- portant influence on the French law. This is M. Aucoc^ who says ^ : When we distinguish government from administration we mean to put into a special category the direction of all affairs which are regarded as political, that is to say the relations of the chief executive authority with the great powers of the govern- ment : the summoning of electors for the election of senators and representatives, the closing of the session, the convocation of the chamber of deputies and of the senate, the closing of their session,, the dissolution of the chamber of deputies ; the carrying on of diplomatic relations with foreign powers, the disposition of the military forces, the exercise of the right of pardon, the granting of titles of nobility. He adds : The administrative authority has a mission altogether differ- ent. It is charged with providing for the collective needs of the citizens which the initiative of individuals or associations of in- dividuals could not adequately satisfy ; it must gather together the resources of society both in men and money in order that society^ may continue to exist and make progress ; it must play the part of the man of business of society, in its management of the various^ public services, as for example in the matter of public works ; it must take measures of supervision and must through the exercise of foresight preserve the property destined for the use of the public, must maintain order and further the general prosperity. Some constitution makers and political scientist* have regarded the executive power as composed of only the first of these powers ; others, while recognizing ^ Conf&ences sur P Administration, etc., I., 78. EXECUTIVE POWER IN GENERAL. 51 the existence of both, have laid such emphasis on the political side of the executive -power as almost to ignore the necessity of the possession by the chief ex- ecutive authority of any administrative power ; while, finally, others have seen that an efficient executive must be an administrator as well as a statesman. The dif- ferent ideas that men have had of the part of the executive power which should be given the greatest prominence have thus led to great differences in the determination of the power to be given to the chief executive authority. In some governments we find the executive authority is simply a political chief.^ This is the position which has been assigned to the executive authority in the commonwealths in the United States. In other governments the political power has been brought largely under the control of the legislature. The position of the chief executive as an administrator is much more important than his position as a political authority. This is very largely true of France and to a certain extent of England. Finally, in other govern- ments the chief executive authority has been recognized as both a political authority and chief of the adminis- tration. This is the case in the United States national government and in Germany. In those states which recognize the chief executive as merely a political officer, the administrative power is given to another series of officers quite distinct from the chief executive authority and very largely independent of him,^ and in many instances is exercised by judicial bodies. ^ Even as a political chief the powers of the executive authority will vary greatly. In some it will thus have the veto power, in others not ; in some it will have a large power of ordinance, in others, almost none at all except such as is delegated to it by the legislature which may be very chary of its delegations. ' Infra, p. 136. < CHAPTER II. HISTORY OF THE EXECUTIVE AUTHORITY AND POWER IN THE UNITED STATES. The office of chief executive was naturally the most difficult to organize in the United States government. The form of the office gave the framers of the national constitution little trouble. They were substantially agreed upon the one-headed form though the board form was considered.^ In their decision as to the powers to give to their executive chief they were, even more than in their decision as to the form of the office, guided by the models with which they were acquainted. These models were the office of colonial governor and the English King as they understood his position.^ It has often been said that they modelled their President on the English King, but careful consideration would seem to show that the influence of Englisli institutions was less strong than is usually believed, and that the fram- ers of the national constitution introduced into their new government the American governor rather than the English King.^ What now were the powers of the ' Elliot's Bedates, Philadelphia, 1876, v. passim ;Rnttima.n, Das Nord-Amer- ikanische Bundesstaatsrecht, I., 232 ; see also J. H. Robinson on " Original Features in the United States Constitution," in Annals of American Academy of Political and Social Science^ I., 222. ^ Elliot's Debates, loc. cit. ; Annals, etc., loc. cit. ^ The author is glad to see that the result of his own study is corroborated by Prof. James Bryce, American Commonwealth^ I., 36. 5* HISTORY OF THE EXECUTIVE. 53 commonwealth governors at the time the national con- stitution was framed ? This question may be answered by a study of the position of the governor in the three most important commonwealths of the time, viz.^ New York, Massachusetts, and Virginia. /. — The executive power in New York at the time of the framing of the national constitution. By the first two charters or patents relating to the territory embracing what is now the commonwealth of New York the entire governmental power was given to the Duke of York. This power he transferred to a governor whom he appointed.^ In 1685, James, Duke of York, became King of England. The character of the colony changed. It had been proprietary ; it now became provincial. The character of its institutions remained, however, the same. The commission and instructions issued to the governor, in which his powers are to be found since New York was not a charter colony, still gave to the governor under the King the entire governmental power and limited the exercise of that power only by requiring for the validity of certain of his acts the consent of a council whose members were chosen by the King.^ After the great revolution of 1688, another limitation was placed upon the exer- cise of the powers of the governor, in that provision was made in the commission and instructions for the summoning of a popular assembly whose consent was to be necessary for all laws and ordinances.^ The ' Poore's Charters and Constitutions, I., 785, 786 ; Documents Relating to iJu Colonial History of New York^ III., 215 et seq., 331. ' Documents, etc.. III., 377, • An assembly was summoned in 1683, but it had little influence. 54 CENTRAL ADMINISTRATION. governor had the power to adjourn, prorogue, and dis- solve this assembly. His other powers enumerated in the commission and instructions were to appoint all officers necessary for the administration of justice and the execution of the laws ; with the consent of the council and in accordance with royal order, to organize courts of justice and with the council to act as the court of appeals in civil cases. The governor had also' the pardoning power and an extensive military power.^ Such was the legal position of the governor. The assembly in course of time, however, began to encroach on the power of the governor, and practically intro- duced important modifications into the governmental system. We find the letters of the governors to the English Board of Trade, which had a supervision over the affairs of the colonies, full of complaints of the re- fractory character of the assemblies.^ The points on which the colonists laid the greatest stress in their struggles with the governors were, as might be supposed, first, the control of the finances, ' Documents, etc.^ II., 623 and 685. ' See Documents, etc., VI,, 456, 460, 472, 533, 543, 550, 554, 597, 752, and 764. In one of these letters the governor says : "By his majesty's commission as well as instructions to his governors of this province all publick money is to be issued by warrant from the governor with the advice and consent of the council. By every act granting money to the king for several years past great part of the money is issued without such warrant and sometimes by warrant of the speaker of the assembly only." In another letter dated March 19, 1749, ^^^ written to the Duke of Bedford, the governor says : " I must beg further to observe to your Grace that the first encroachments on the royal prerogative began under the administration of Mr. Hunter, that the assembly took advantage of the necessities the administration was then under (by the war with France and an expedition then set on foot in America against Canada), to claim a right of appointing their own treasurer and refused to support the government unless this was yielded to them." He then adds that Mr. Hunter struggled against them for four years and was then forced to yield. Cf. Gitterman, " The Council of Appointment in New York," Pol. Sci. Qu., VII., 80. HISTORY OF THE EXECUTIVE, 55 and, second the right of appointing officers as being the most important powers which the governors pos- sessed. After the wasteful administration of Lord Oornbury they insisted on specifying the purposes for which the money which they granted should be spent, and, after they had secured the recognition of this power, during the administration of Governor Clinton they made use of this power of appropriation to grant their salaries to the officers of the government by name, thus assuming to themselves a large portion of the appoint- ing power. The result of the constitutional develop- ment during the colonial period in New York was that the legislature had at the time when New York became independent almost absolute control over the finances, granting the money, making the appropriations, and controlling the officer on whose warrant it was issued, and participated quite largely in the exercise of the appointing power. When New York became inde- pendent it was only natural that the framers of the new constitution which was adopted should incorporate into their new instrument of government the principles for whose recognition they had for so long a time been struggling with the colonial governors ; and we find that the constitution of 1777 differed from the pre- viously existing polity of New York only in that these principles were now given the sanction of written law and in that the whole political system was somewhat leavened by the prevailing political philosophy, espe- cially by the two principles of popular sovereignty and the separation of powers. Thus by the new con- stitution the finances for whose control the people had been struggling were put into the hands of the legisla- ture. Taxes could be levied and money appropriated 56^^^ CENTRAL ADMINISTRATION, only by tlie legislature.' The treasurer on whose war- rant all money was to be issued was to be elected by the legislature by an act to originate in the assembly.'^ The governor's power of appointment, which had also been a point at issue in former times, was subjected to a legislative control in that the consent of a council of appointment, to be composed of members of the legis- lature and elected by the legislature, was made neces- sary for the valid appointment of all officers appointed by the governor.^ The principle of the separation of powers made itself felt in that the new constitution attempted to define the so-called different powers of government,* and allowed the governor almost no con- trol over legislation 5 and absolutely none over the rendering of justice. This resulted from the failure to enumerate among his powers any judicial powers other than the power of pardon ^ and the express for- mation of a system of courts w^hich were to decide all controversies. The principle of popular sovereignty made itself felt in that the governor was to be elected by the people and was reduced to the position of an officer who was simply to execute the laws with little discretion.^ There could no longer be any authority to issue instructions to him since the power of the Eng- lish King was no longer recognized. //. — The executive power in Massachusetts. The history of the province of Massachusetts begins with the year 1691. The provincial charter which * Art. ix. The system was thus in this respect the same as in the colonial period. • Art. xxii. ' Art. xxiii. * Arts, ii., xvii., xxxii. » Art. iii. • Art. xviii. ' Cf. Art. i. HISTORY OF THE EXECUTIVE. 57 was then giveu to the colony united the two formerly existing colonies of Massachusetts Bay and Plymouth/ This charter formed by the side of the governor a legislative body, the General Court, which consisted of the governor's council, chosen by the General Court, and of representatives chosen by the freeholders of the colony. The governor had the power to adjourn, pro- rogue, and dissolve the General Court ; could, with the consent of the council, appoint a great many officers, mostly local in character, though the general appoint- ing power, where there was no special provision in the charter, belonged to the General Court ; had a veto power over all the acts of the General Court; had very limited judicial powers — only the probate of wills and the granting of administrations ; and finally had extensive military powers, some of which could be exercised only with the consent of the council. It will be noticed from this enumeration that the legislature had under the charter of 1691 almost all the powers which the New York assembly tried for so long a time to get. It had the general appointing power, and through this a large control over the finan- ces, since it could appoint its own treasurer. We find therefore that the Massachusetts legislature did not encroach seriously upon the powers of the governor ; and that on the adoption of a constitution in 1780 no very great changes were made in the form of the gov- ernment. Of course the substitution of the doctrine of popular sovereignty for that of royal sovereignty, as well as the adoption of the principle of the separa- tion of powers which was very forcibly announced,^ made some changes, but these are about all. Thus the * Poore, op. cit., I,, 949. ' See Const., Art. xxx., part i. 58 CENTRAL ADMINISTRATION. constitution of the new commonwealth provided that the governor was to be elected by the people. The governor lost his control over the legislature ; his veto power was limited and his judicial powers disappeared. His military powers were about the same as before, and as before he could appoint most of the judicial and local officers, but all the important central officers of the commonwealth were to be appointed by the Gen- eral Court. ///. — The executive power in Virginia, Virginia, like New York, had no colonial charter. Recourse must therefore be had to the commission and instructions issued to the governor to find what was the extent of the executive power. In Beverly's History of Virginia^ published about the year 1705, is found a tolerably complete description of the civil polity of the colony based on this commission.^ We find a governor appointed by the King and subject to his instructions, with the power to adjourn, prorogue, and dissolve the assembly and to veto all their acts. The governor's power of appointment extended, as a rule, only to the local officers ; he had large military powers, but the appointment of the most important officers of the colonial financial administration belonged to the assembly whose speaker acted as treasurer.^ It will be noticed that, as in Massachusetts, the legislature had as early as 1705 what the assembly in New York struggled so long to get, viz.^ the control of the finances. Therefore we find few attempts on the part of the legislature to encroach upon the powers of ' Book iv., part i. ' Campbell, History of Virginia, 535 et seq. HISTORY OF THE EXECUTIVE. 59 the governor; and that when the colonists came to form their commonwealth government at the time of the declaration of independence they did not find it necessary to make many changes beyond those which the prevalent political philosophy made it probable they would adopt. Thus the principle of the sovereignty of the people is seen in the fact that the governor was to be elected by the people's representatives, the legislature. In accordance with the principle of the separation of powers he lost his control over the legislature, by the / abolition of the power of dissolution and prorogation and the veto power. He had still the same appointing power as before — that is, for local officers, — but subject to the consent of the council. He had also to exercise with the advice of the same body the military power and the power of pardon. The important central officers, including the treasurer, were to be appointed by the legislature. IV. — The A merican conception of the executive power in 1 787. The American conception of the executive power prevailing at the time of the adoption of the common- wealth and national constitutions, as evidenced by the examples which have been adduced, corresponded with that part of the executive power which has been called the political or governmental power. The great exception to this was that the carrying on of foreign relations was not included in the governor's powers. This does not, however, prove that this power was not considered a part of the executive power. The omis- sion of this power was due entirely to the peculiar 6o CENTRAL ADMINISTRATION. position of the colonies, and later of the common wealths. The care of the foreign relations was not in the governor's hands simply because, during the coloni- al period, the mother country, and during the existence of the commonwealths as separate states the continental congress had attended to this matter. To a similar reason is due the fact that the governor did not have very extensive administrative powers. Administrative matters, outside of those connected with the military powers of the governor, had not been attended to by tlie central colonial government, but, in accordance with the English principles of local govern- ment, by officers in the various localities, and mainly judicial in character. Thus in the case of the adminis- trative matters connected with justice, almost the only matters attended to by the governor were embraced in the powers of appointment and removal. The every- day matters of court administration were attended to either by the courts themselves, or by the officers in the localities in which the courts had jurisdiction. The facts were the same in the branch of the adminis- tration known as internal affairs. Here the central colonial government had little to do except to appoint certain of the officers, the justices of the peace and sheriffs, who, after their appointment, attended to those matters in their own discretion. Further, this branch of administration was a very small one, embracing practically only such matters as the preservation of the peace, the care of the poor and of highways and local finances. There was thus left only one branch of administration in which the central colonial govern- ment had any powers to exercise. This was the administration of the central finances ; and here, on HISTORY OF THE EXECUTIVE. 6i account of the impoi*tance of this branch of administra- tion, we find that in all the three colonies the question was definitely settled before the revolution that the legislature should exercise a very important control over the finances, if it did not take them into its absolute administration. It claimed, and obtained the power to vote all the supplies that the government could obtain, to specify in its appropriation acts for what purposes the money it had raised should be expended, and to designate the officer who was to have charge of its collection and disbursement. The power of appointment, which is an administrative power that is to be found in all the branches of administration, was treated differently in different commonwealths, but the conception that it belonged to the governor in the case of other than judicial and local officers was not very clear. In New York alone it can be said that the general power of appointment was regarded as one of the governor's powders, and even here it was subjected to a legislative control. One fact further deserves mention. That is, that the governor possessed neither in the colony nor in the commonwealth any general ordinance power, even to supplement existing law. As Koger Sherman said : " The executive is not to exe- cute his own will, but the will of the legislature declared by laws." ' The only purely administrative branch attended to by the central colonial and commonwealth government was, then, the financial administration, which was al- most entirely attended to by the legislature. This formed the model which the framers of the new na- tional government tried to copy when they came to * Quoted in Conkling's Executive Power, 1882, pp. 62 et seq. 62 CENTRAL ADMINISTRATION, build up a great administrative system, but which their successors were forced by circumstances to abandon. F. — The history of the executive power in the early national government. 1. Original position of the President. — The national constitution provided for a President, in whom the executive power should be vested.^ What the mean- ing of those words was in 1787 has just been shown. It was that the President was to have a military and political power rather than an administrative power. The meaning of these words is further explained by the enumeration of the specific powers which were granted to the President by the constitution. These are the same powers possessed by the governors of the commonwealths. They are the power of military com- mand, the diplomatic power, the limited veto power, the power of pardon, the power to call an extra ses- sion of Congress, to adjourn it in case of a disagree- ment between the houses, and the power to send a message to the Congress. The general grant of the executive power to the President means little except that the President was to be the authority in the gov- ernment that was to exercise the powers afterwards enumerated as his. The only other enumerated power is an administrative power, and is also the only purely administrative power that is mentioned clearly in the constitution. This is the power of appointment.^ ' Art. ii., section i. ' Art. ii., sec. 2, par. 2, provides that " the President shall nominate, and by and with the advice and consent of the senate shall appoint, ambassadors, other pub- lic ministers and consuls, judges of the Supreme Court, and all other officers of HISTORY OF THE EXECUTIVE. d^ Finally it is to be noted that, in accordance with the American conception of the executive power, the President did not have any power to issue general ordinances, even to supplement existing law, which would bind the citizen. The only ordinance power which the President had at the beginning of our his- tory, and indeed has now, is the power to issue ordi- nances when the legislature has specifically delegated to him the power to regulate a given subject. The only possible exception to this rule is that in times of war the war power which is generally recognized as belonging to the President is susceptible of very great extension and may be construed, indeed in the past has been construed, as giving to the President quite an ordinance power.' It will be seen from this enumeration of the powers given to the President by the national constitution that the conception of the executive power held by the framers of the national constitution was the same as that to be found expressed in the constitutions of the three commonwealths whose constitutional history has been examined. The President had the political power and one administrative power, viz.^ the power of appointment. Beyond the power of appointment he had, so far as the express provisions of the consti- the United States whose appointments are not otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the ap- pointment of such inferior officers as they may think proper in the President alone, in the courts of law, or in the heads of departments." Paragraph 3 adds : " The President shall have power to fill all vacancies that may happen during the recess of the senate by granting commissions which shall expire at the end of their next session." Further, section 3 gives to the President the power of commissioning all the officers of the United States, * See supra, p. 32 ; and Fisher, " Suspension of Habeas Corpus " in Pol. Sci. Qu., III., 163. 64 CENTRAL ADMINISTRATION. tution were concerned, no control over the administra- tion at all. 2. Change due to the 'power of removal, — But Ameri- can development has completely changed this concep- tion of the power possessed by the President. In the first place the duty imposed upon him by the constitu- tion, to see that the laws be faithfully executed,' has been construed by the Congress as giving it the power of imposing duties and conferring powers upon the President by statute, and has led to the passage of almost innumerable laws which have greatly increased the importance of the President's position, and have given him powers and duties relative to the details of many administrative branches of the national govern- ment.' In the case of In re Neagle it is said that under this power the President is not limited to the enforcement of acts of Congress according to their ex- press terms. This power includes rights and obliga- tions growing out of the constitution itself. As a result of it the President may protect an officer of the United States in the discharge of his duties.' The second cause of the change in the position of the President is to be found in the interpretation of the constitution made by the first Congress relative to the power of removal. The constitution gave the power of removal to no authority expressly. The question came up before the first Congress in the discussion of the act organizing the department of foreign affairs. Although there was a difference of opinion in the Congress as to who under the constitution possessed ^ Art. ii., sec. 3. * Elmes, Executive Departments, 13, 14. » 135 U. S., I.. 64, 68. HISTORY OF THE EXECUTIVE. 65 this power, it was finally decided by a very small majority that the power of removal was a part of the executive power and therefore belonged to the Presi- dent. This was the recognized construction of the constitution for a great number of years, although it did not meet with the approval of some of the most eminent statesmen/ After more than three quarters of a century Congress deliberately reversed this decision and by the ten ure-of -office acts of 1867-9 (later incor- porated in the Revised Statutes as sections 1767-1769) decided that the constitution had not impliedly or expressly settled this point, and that Congress was therefore the body to decide who possessed the power of removal. Congress then decided that the power of removal of senate appointments belonged to the President and the senate.' For twenty years this was the law of the land though no one was able to explain exactly what the tenure-of -office acts meant, on account of the obscurity of their wording; but finally in 1887 Congress repealed them. The result is that the early interpretation of the constitution must be regarded as the correct one at the present time. That is, the President alone has the power of removal of even senate appointments. Though the tenure-of-office acts had the effect of temporarily weakening the power of the President, the complete power of removal had existed so long as to determine the position of the President in the national government and has been of incalculable advantage in producing an efficient and harmonious national administration. The benefits which * This construction was approved by the United States Courts in United States V. Avery, Deady, 204. * This was constitutional, United States v. Avery, Deady, 204. V 66 CENTRAL ADMINISTRATION. followed the interpretation of the first Congress on this question were unquestionably the reason why the tenure-of-office acts were finally repealed. From this power of removal has been evolved the President's power of direction and supervision over the entire national administration. To it is due the recognition of the possession by the President of the administrative power. 3. Power of direction. — The power of direction and control over the administration through which the President has become the chief of administration is hardly recognized in the constitution. The only pro- vision from which it might be derived is that which permits him to " require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respec- tive offices." ^ But perusal of the early acts of Con- gress organizing the administrative system will show that the first Congress did not have the idea that the President had any power of direction over any matters not political in character, while the conception of the executive power possessed by the statesmen of the time, as seen from the examples which have been adduced, goes to corroborate this position. The acts of Congress organizing the departments of foreign affairs and war did, it is true, expressly give the President the power of directing the principal officers of these depart- ments how they should perform their duties, but these were departments which were of a political character. But the act organizing the treasury department ^ con- tains no reference to any presidential power of direction. It simply says that the secretary of the treasury shall * Art. ii., sec. ii., p. i. ^ Sept. 2, 1789. HISTORY OF THE EXECUTIVE. 67 generally perform all such services relative to the finances as he shall be directed to perform ; and the context shows that reference is made to the direction of Congress and not to that of the President. The debates in Congress substantiate this view. Further, the fact that the secretary of the treasury, different from the other secretaries, was to make his annual report, not to the President, but to Congress, shbws that Congress intended, after the manner of the time, to keep the finances under its own supervision. The administration of the finances which, as has been shown, was really almost the only non-political branch attended to by the central government of the commonwealths served the men of those times as a model for the other purely administrative branches. Thus the post-office was organized at first in such a way as to remove it completely from the control of the President. The appointment of all officers in the post-office was given to the postmaster-general, while the law which finally organized the department in 1825 had nothing whatever to say about presidential control or direction. The original absence of this power of direction is commented upon by one of the United States courts. The court says ' : The legislature may prescribe the duties of the office at the time of its creation or from time to time, as circumstances may- require. If these duties are absolute and specific, and not by law made subject to the control or discretion of any superior officer who is by law especially authorized to direct how those duties are to be performed, the officer whose duties are thus prescribed by law is bound to execute them according to his own judgment. That judgment cannot lawfully be controlled by any other ^ United States v. Kendall, 5 Cranch, C. C, 163, 272. /^ 68 CENTRAL ADMINISTRATION, person ... As the head of an executive department he is bound, when required by the President, to give his opinion in writing upon any subject relating to the duties of his office. The President, in the execution of his duties to see that the laws be faithfully executed, is bound to see that the Postmaster-Gen- eral discharges " faithfully " the duties assigned by law ; but this does not authorize the President to direct him how he shall dis- charge them. The court admits, however, that the President might remove the postmaster-general from office, and it is from this power of removal that we must derive any power that the President has to direct and control the acts of officials in those departments where the law has not expressly provided for the direction and control of the President. So much force did this power of removal have that in 1855, only twenty years after the decision that has been cited was made, we find in an opinion of Mr. Cushing, the attorney-general, the following recognition of the power of direction of the President.' I think , . . the general rule to be . . . that the head of department is subject to the direction of the President. [This was said in relation to duties imposed by statute upon a head of department.] I hold that no head of a department can lawfully perform an official act against the will of the Presi- dent ; and that will is by the constitution to govern the per- formance of all such acts. If it were not thus, Congress might by statute so divide and transfer the executive power as utterly to subvert the government and change it into a parliamentary despotism like that of Venice or Great Britain, with a nominal executive chief or President utterly powerless — whether under the name of Doge or King or President would then be of little account so far as regards the question of the maintenance of the constitution. '^ * 7 Opinions of the Attorneys-General, 453, 470. HISTORY OF THE EXECUTIVE. 69 This is, of course, an extreme view, and it is prob- ably not meant by it that the President has any dis- pensing power by which he might relieve an officer from obeying a positive direction of law, since the law, when constitutional, is always above any executive order.' But it indicates, at any rate, the drift of public opinion as to what was the position of the President. Indeed, by this time it was pretty well recognized that the President had a power of direction over all of the departments regardless of the fact whether the law organizing the department had made mention of such a power or not. This may be seen from the celebrated United States bank episode when Andrew Jackson made use of the power of direction, together with the power of removal on which it is necessarily based, to force the secretary of the treasury, notwithstanding the semi-independent position in which the first Congress attempted to place him, to vrithdraw the national deposit from the bank. This was done in spite of the disapproval of Congress, and no serious attempt was made to condemn his action.' The effect of giving to the President these powers of removal and direction has been to give him the admin- istrative power, and to make him the chief of adminis- tration. The result of our national development has been a great enlargement of the American conception of the executive povrer as exemplified in the office of the President. The executive power in the United States, so far as the national government is concerned, embraces both the powers of which it may in theory * Kendall v. U. S., 12 Peters, 524. ' See Riittiman, op. cit., I., 170. For a modem illustration of the presidential power of direction see F. P. Powers on the Guilford Miller case in an article ^ on " Railroad Indemnity- Lands " in the Fol. Sci. Qu.^ IV., 452, 456. 70 CENTRAL ADMINISTRATION, be composed, and tlie chief executive authority is at the same time the political and the administrative chief of the government, and has under his direction and control the actions of all the officers of the national government. CHAPTER III. THE ORGANIZATION OP THE CHIEF EXEOUTTVIS AUTHORITY IN THE UNITED STATES. /. — The President, It may be said that the executive power possessed by the President of the United States embraces first, the political power, which is sometimes exercised by and with the advice and consent of the senate acting as an administrative council, and second, the adminis- trative power, which is of especial interest to the student of administrative law. This administrative power consists of two classes of minor powers ; first, of the powers which relate to the personnel of the ad- ministration. These have been discussed in the histori- cal treatment of the President's power. At the present time they are complete, and the President is therefore the head of the national administration, with power to appoint (with consent of the senate for most im- portant officers), remove, and direct all the subordi- nates. In the second place, the President has powers relative to the administrative services themselves, material rather than personal powers. That is, the President has the right himself to perform a series of acts in the different branches of the national adminis- tration. 71 72 CENTRAL ADMINISTRATION. 1. Administrative powers. — These powers are ta be found in the various acts of Congress relative to the different services by which Congress has conferred powers and imposed duties upon the President, which he is obliged to exercise and perform as a result of his constitutional duty to see that the laws be faithfully executed/ Principal among them is the ordinance power which in numerous instances Congress has delegated to the President, and which the President may exercise only as a result of such a delegation. In the exercise of these powers it is nob necessary that the President act personally even in the case of duties whose per- formance has been expressly required of him by law.^ The acts by means of which the President performs his duties are either of a general or a special character. Those of a general character are either regulations or instructions, the difference between them being that the former bind both the officials of the government and the citizens as a result of the fact that Congress has delegated to the President the power to issue them, while the latter bind only the officials of the govern- ment, and are issued by the President as a result of his power of direction and control over the entire adminis- tration. Some of the most important of the general regulations issued by the President are the consular regulations and the civil-service rules. But the most important of the executive regulations are issued, not * See also In re Neagle 135, U. S., i, 64, 68 ; supra, p. 64. ' Williamson v. The United States, i How, 290 ; 17 Peters, 144. This case de- cided that an act prohibiting the advance of money to disbursing officers except under the special direction of the President did not require of the President the performance of this direction in every instance under his ovi^n hand. For politi- cal and judicial acts the courts seem to require the personal action of the Presi- dent. See Runkle V. U. S., 122 U.S., 543, 557 ', U. S. v. Page, 137 U. S., 673^ 678 ; Ex parte Field, 5 Blatchford, 63. ORGANIZATION OF EXECUTIVE. 73 by the President, but by the different heads of depart- ments, though the President is regarded as responsible for them all and to have acted through the heads of departments.^ The other class of the President's acts are of special and not general application, and are directions or or- ders issued to a single head of a department and de- cisions in those few cases where it is recognized that the President has the power of deciding appeals from the decisions of his subordinates. The latter power of decision on appeal is not generally recognized as be- longing to the President. Indeed it has been laid down as the general rule that the President has no power to correct by his own official act the errors of judgment of incompetent or unfaithful subordinates ^ ; and that the individual has no right of appeal from the decision of a head of a department to the President ^ ; and that where an appeal lies it can go no further than to the head of a department.* The only case where an appeal lies to the President is where the question to be decided is as to the juris- diction of the officer whose decision is appealed from. Here the appeal seems to be permitted.^ 2. Hemedies against the action of the President, — There are, it may be said, almost no remedies against the action of the President. The President is neither * Wilcox V. Jackson, 13 Peters, 498, 513 ; U. S. v. Eliason, 16 Id., 291 ; Con- fiscation Cases, 20 Wall. 92, 109 ; U. S. v. Farden, 99 U. S., 10, 19 ; Wolsey V. Chapman, loi U. S., 755. ^ 4 Opinions of the Attorneys-General, 515; but see the Guilford Miller case. Supra, p. 69. '9 Opinions, 462. * 10 Ibid., 526. '15 Ibid., 94, 100. This opinion was given in 1S76, and is very valuable, as in it are collected and reviewed all the opinions of the attorneys-general on this point. 74 CENTRAL ADMINISTRATION. civilly nor criminally responsible to the courts.^ Nor can the courts review his acts where the attempt will bring them in direct conflict with him.^ The only cases where the courts can exercise any control over the President are those in which a regulation or order of the President comes up before them for execution when, if they regard it as an act in excess of the President's powers, they may refuse to enforce and declare it null and void.^ But even in these cases where the action of the President is regarded as political in its nature the courts will refuse to interfere/ //. — The commonwealth governor, 1. The governor a political officer, — The originally political character of the governor ^ has tended to be- come more prominent, largely on account of the grant to him of the limited veto power. His political powers consist in the first place of military powers, which are always exercised subject to the limitations contained in the United States constitution. This provides that the militia of the several commonwealths shall be under the command of the President when in the actual ser- vice of the United States.^ These military powers consist for the most part of the commandership of the commonwealth militia and include also the military administration as there is no commonwealth secretary of war.7 This fact is due probably to the possession ^ Durand v. Hollis, 4 Blatchford, 451, which also claims irresponsibility for his subordinates when executing orders issued in the discretion of the President. ^ Infra, II., p. 208; Miss. v. Johnson, 4 Wall, 475. ' The Schooner Orono, I. Gallison C. C, 137 ; Ex parte Merryman, 9 Am- erican Law Register, 524. * Supra, p. 34. ® Const., art. ii., sec. 2, par. i. * Supra, p. 59. ' Stimson, American Statute Law, p. 41, sec. 202. ORGANIZATION OF EXECUTIVE, 75 by the Englisli crown, at the time the office of gov- ernor was established, of the military administration which was considered a part of the royal prerogative. In several of the commonwealths the governor may not act personally in the field unless advised so to do by a resolution of the legislature.^ As commander-in- chief he has very commonly the power to call out the militia in case of insurrection, invasion, or resistance to the execution of the laws.^ In some cases here again this right is subject to passage of a resolution to that effect by the legislature. This is so in New Hampshire, Massachusetts, and Tennessee in case of insurrection and in Texas in case of invasion.^ The second class of powers possessed by the gov- ernor are to be found in the powers he possesses over the actions of the legislature. Thus the governor very generally has the veto power. This includes in many cases the power to veto items in appropriation-bills and usually consists in the power to demand from the legislature a reconsideration of the objectionable bill. On the reconsideration, the bill may be passed usually by a two-thirds vote, in some cases a three-fifths, and finally in some by a simple majority.'^ The governor also has the power to adjourn the legislature in case the two houses disagree as to the time of adjournment^ ; the power to call extra sessions of the legislature^ ; and the power and duty to send to the legislature mes- sages in which he is to give the legislature such infor- mation as to the condition of the commonwealth, and * Alabama, Kentucky, Maryland, and Missouri. Stimson, op. cit. sec. 297. ' Stimson, op. cit. sec. 298. ^ Ibid. » /3«V., sec. 278. * IHd., sec. 305, C. * IHd., sec. 277. 76 CENTRAL ADMINISTRATION. to recommend such measures as he deems proper/ In the third place the governor has very generally the pov^er to grant pardons, reprieves, and commutations of sentences and may remit fines and forfeitures.^ In some instances treason and conviction on impeachment are excepted from his pardoning power,^ v^hile in certain of the States the power in all cases is conditioned upon obtaining the consent of the council (Massa- chusetts, Maine, and New Hampshire), or the senate (Rhode Island), or that of the judges of the supreme court and the attorney-general or a majority of them (Nevada and Florida), or of a board of pardons con- sisting of " state officers "* (Pennsylvania). Finally the governor has in some cases the power to proclaim in accordance with the law the time of general elections. This power is often possessed by the secretary of state.^ 2. Power of appointment — While the political powers of the governor have increased, his administra- tive powers have decreased. First among these is the power of appointment. This power was originally rather greater in New York than elsewhere. Here the governor had the power to appoint most officers in the commonwealth, but was subject in the exercise of the power to the necessity of obtaining the consent of the council of appointment formed of members of the sen- ate elected by the assembly.^ In 1801, however, the power was given to each member of the council to nominate for appointment.^ The diffusion of respon- sibility resulting from this amendment at a time when the patronage of the central government of the com- * Ibid., sec. 280. * Ibid., sec. 160. * Ibid., sees. 160, 163, 164. ^ See Nebraska Compiled Statutes, 1889, p. 453. * Ibid., sec. 161. * Supra, p. 56. ' Amendment V. to the first constitution. ORGANIZATION OF EXECUTIVE. 77 mon wealth was very large ^ resulted in great evils ; and the demand began to be made that the patronage of the central government of the commonwealth be les- sened. This was done by the constitution of 1821, which abolished the council of appointment and pro- vided that the heads of the executive departments should be appointed by the legislature as had been the rule from the beginning in Massachusetts and Vir- ginia. Most of the officers of the commonwealth in the localities were made elective, and in the few cases in which the power of appointment was left with the governor its exercise was conditioned by the necessity of obtaining the consent of the senate. The consti- tution of 1846 still further lessened the power of the governor to appoint officers ; but since that time there has been a reaction in favor of increasing this power. Amendments to the constitution and statutes, have provided new officers unknown to the original consti- tution, and these officers are for the most part appointed by the governor and senate. Finally, the general power has been given to the governor to appoint to any position for which no other method of appointment or election has been provided,^ and to fill vacancies except in the principal "state offices," which are filled by the legislature.^ The same development has been going on in the other commonwealths with the result that the governor's power of appointment at the present time is as follows : The governor has the power with the consent of the council or senate to appoint the less important " state * In 1821 the number of civil appointees was 7,000, that of military ap- pointees, 8,000. See schedule in Clark's Debates of the Convention of 1821. « N. Y. L, 1892, c. 681, sec. 6. * Ibid., sees. 30, 31. 78 CENTRAL ADMINISTRATION, officers " * and almost never any of the local officers ; to fill many vacancies until the expiration of the term or the next election, and to fill all offices for which some other method of filling is not provided. This power of appointment is generally based on statute, and therefore may be decreased at any time by the legisla- ture. But in some cases it is based on the constitution,^ when of course the legislature would have no such power. In a few commonwealths it is provided that the term of the officers to be appointed by the governor and of those to be elected by the people shall expire at the same time that the term of the governor expires, so that the new governor may fill the offices to his satisfaction at the beginning of the term, and so that there will be harmony in general policy between the governor and the elected officers, who it is supposed will belong to the same party as the governor.^ But this is quite rare. 3. Power of removal. — In New York, where the ad- ministrative powers of the governor were rather greater than elsewhere, it was provided by the first constitu- tion that the governor had, subject to the necessity of obtaining the consent of the council of appointment, the power to remove almost every important officer in the commonwealth government not judicial in character and not purely local.* It is said that " use was made of this power to produce an entire change of officers throughout the state from the highest to the lowest, at any rate in all those cases where the immediate pre- decessors of the council [of appointment] had made an * But see Florida where he appoints almost all. See Const. 1881, art. v., sec. 17. ' See Stimson, op. cii,, sec. 202, B. ^ See Kentucky, General Statutes, sees. 2, 25, 28 ; Constitution of Nebraska, v., sec. I ; Florida Const. 1881, v., sec. 17. * Const., art. xxvii. ORGANIZATION OF EXECUTIVE. 79 appointment."^ This gross misuse of the power of removal was one of the reasons why the council of appointment was abolished in 1821. With its abo- lition the governor's power of removal was greatly diminished. At first the governor lost practically all power of removal, but later a certain power of removal was restored to him ; and at the present time the power of removal of the commonwealth governor is as follows : This power is as a rule confined to the officers whom the governor appoints, though in New York he is per- mitted to remove all the important " state officers " ^ ; and local officers are seldom removable by the gover- nor except in New York where the power to remove local officers is quite large.* In almost all cases, how- ever, the exercise of this power is conditioned upon obtaining the consent of the council or senate and upon the finding of cause for removal, which cause is usually either malfeasance in office or neglect of duty, but in a few cases may consist in incompetency.* Where cause is the ground of removal, in accordance with the general principles of the administrative law of the United States the person to be removed must be given a hear- ing.5 Sometimes pending the removal proceedings the governor has by statute the right to suspend the officer.^ As in the case of the power of appointment the power of removal is based sometimes on the consti- tution, indeed generally so, but also in some cases on the statutes when the legislature may take it away. 4. Power of direction, — The governor's powers of * Hammond, History of Political Parties in the State of New York, I., 289. * Const., art. v., sees. 3, 4 ; art. x., sees, i, 3, and 10 ; L,, 1892, c. 681, sees. 22, 23 ; cf. Stimson, op. cit., sec. 266. * L., 1892, c. 081, see. 23. * Ibid., sees. 22 and 23 ; Stimson, op. cit., sec. 266. * Infra, II., p. 99. * See Indiana Rev. Stats., 1881, sec. 5643. 8o CENTRAL ADMINISTRATION. direction and control over the administrative officers are very small and must of necessity be so, so long as the power of removal is so weak. Further, the statutes seldom give him expressly any such power. The only general exception to this rule seems to be in the case of the attorney -general who is regarded as the legal adviser of the governor and as such subject to his direction.^ Further, it is very generally provided that the governor may demand information from the various officers, who must also report to him.^ 5. The governor's power over the ackninistrative ser- vices. — In addition to these rather limited powers over the personnel of the commonwealth administration the governor has also a few but rather unimportant powers relative to the administrative services. As a general thing, however, these services are managed by the various '' state officers " independently of the governor. Among the governor's powers of this character may be mentioned the ordinance power. This, like the ordi- nance power of the President, is a delegated ordinance power; but different from the national Congress, the commonwealth legislature has not often delegated to the governor any ordinance power. Further, the governor has in several of the commonwealths comparatively ex- tended financial powers. Thus in seven of the com- monwealths ^ he is to draw up estimates of the amount of money to be raised by taxation for the purposes of the government ; in several commonwealths also all money is to be paid out of the treasury on his order * ; * See, «?. ^..California Political Code, sec. 380, paragraphs 5, 6, and 7, Georgia Code, sec. 367 ; Indiana Rev. Stats., sec. 5659. ^ Stimson, op. cit., sec. 281. 2 Illinois, Nebraska, West Virginia, Missouri, Texas, Colorado, and Alabama. Stimson, op.cit., sec. 280. * E. g. see Code of Georgia, 1882, sec. 76. ORGANIZATION OF EXECUTIVE. 8i and finally in a number he is to examine the accounts of financial officers at stated times and sometimes unex- pectedly.^ 6. General position of the governor, — It will be noticed from this description of the governor's powers how different his position in the commonwealth admin- istration is from that of the President in the national administration. Originally occupying about the same relative position, the governor has been stripped of his administrative powers, and has been more and more confined to the exercise of political powers, while the President has been gaining more and more ad- ministrative power, until at the present time he makes or unmakes the administration of the United States. It has been impossible for the governor to become the head of the commonwealth adminis- tration, because the people of the commonwealth have decided that the governor shall be in the main a political officer. They have lessened his power of ap- pointment, they have all but destroyed his power of removal. He has thus been unable to develop any power of direction. The governor's office has been deprived of all means of administrative development.^ He is now more than he ever was a political officer. His political powers indeed have tended to increase. This is especially true of the veto power, which now extends to items of bills appropriating money. But because the governor has thus been confined to the * See Virginia Code, sec. 238 ; Colorado General Statutes, 1883, sec. 1361 ; Iowa, McLain's Annotated Statutes, 1882, sees. 759, 763 ; Kansas, Dassler's Compiled Laws, sec. 5964. ' The remark of one of the commonwealth governors that all the power he had was " to pardon criminals and appoint notaries " is indicative of the gov- ernor's position at the present time. 6 82 CENTRAL ADMINISTRATION. exercise of political powers his influence upon the wel~ fare of the commonwealth must not be underestimated. He is still a very important officer. His veto power gives him a vast power over legislation, while the little power of removal which he possesses often enables him to punish summarily any gross malconduct on the part of many of the important administrative officers of the commonwealth both at the centre and in the localities. 7. Remedies against Ms action. — The remedies against the acts of the governor are about the same a& the remedies provided against the action of the Presi- dent, though perhaps a little more effectual on account of the fact that the courts are not so careful of avoid- ing conflict with the commonwealth executive. Thus, while the better rule would seem to be that the courts will not attempt to control his action by attempting to exercise a direct restraint over him,^ still there are cases in which they have not hesitated to issue direct com- mands to him, whose disobedience would, in accordance with the usual rules of law, result in his commitment for contempt of court ; and they have had little com- punction about declaring an act of the governor, in which it would appear that he had considerable discre- tion, null and void." * High, Extraordinary Legal Remedies, 2d Ed., sees. Ii8, 136 ; People v.. Hill, 13 N. Y. Supplement, 186 ; N. V. Law Journal, April 13, 1891 ; af- firmed, but on different grounds, in 126 N. Y., 497. ^ People V. Curtis, 50 N. Y., 321, where it was decided that a warrant of extradition made by the governor in pursuance of an unconstitutional law was, void; People v. Brady, 56 N. Y., 182, where the court went back of a war- rant of extradition issued by the governor, and decided that the affidavits on which the warrant was issued were not sufficient to justify the inference that a. legal crime had been committed; People v. Piatt, 50 Hun., 454, where the court decided that the act of the governor appointing an officer was without jurisdiction, on the ground that the person appointed was not qualified. See also Dullam v. Willson, 53 Mich., 392. CHAPTEE IV. THE EXECUTIVE POWER AND AUTHORITY IN FRANCE. /. — General position. The office of the chief executive is filled in France by the President, who is elected by the legislature acting in national assembly. His position is, from the adminis- trative point of view, similar to that of the President of the United States, but somewhat more influential, on account of the existence in France of many mon- archical traditions and on account of the existence also for so long a time of a hierarchically organized admin- istration, at whose head it is well recognized that the President stands. While from the administrative point of view his position is somewhat more important, *^ from the political point of view his position is consider- ably less important than that of the President of the United States, particularly on' account "of the absence of any veto power and on account of the adoption of the principle of the responsibility of his ministers to the legislature. //. — A dminstrative powers. 1. Power of appoinPment — His administrative powers relative to the personnel of the official service are to be found in the first place in a wide power of 83 84 CENTRAL ADMINISTRATION. appointment. He appoints without any limitations whatever to most of the important positions in the administration, the only exception to this rule being that his ministers must have the confidence of the legislature, which by precedent has come to mean the confidence of the chamber of deputies.' The President has the power of appointing not only the agents of the central administration, but also most of the ofiicers acting in the localities, such as the prefects in the departments, the under-prefects in the districts, and the treasurers of the departments. Really the only important administrative officer in the localities not appointed by the President is the mayor in the com- mune, who since 1882 has been appointed by the municipal council.' Formerly the power of appoint- ment of the chief executive was much greater than now, the members of all the deliberating bodies in the localities being designated by the central government. These are now elected by the people of the respective localities. In addition to appointing the officers of the active administration, the President also appoints the members of the administrative councils and courts, viz,^ the council of state,^ and the council of the prefecture,* and the members of all the ordinary courts.^ 2. Powers of removal and direction. — In the second place the President has in the case of purely adminis- trative officers an unlimited power of removal which is even more extensive than his power of appointment since he may remove not only all officers whom he has * L., Feb. 25, 1875, art. 3, Burgess, op. cit., I., 302. « L., March 28, 1882. » L., Feb. 25, 1875. * L., June 21, 1875. 'L., Feb. 25, 1875. EXECUTIVE POWER IN FRANCE, 85 appointed/ but also may remove the mayors of the communes,'^ and may dissolve the l ocal deli bergUiive and legislative bodies, such as the general Council of the department and the municipal councils of the com- munes.^ In the third place, the President's power of direction is as great as his powers of appointment and removal. It is, however, the result of tradition rather than of positive law. The administration has been so long hierarchically organized that the idea that the President is the head of the administration, subject always to the principle of ministerial responsibility to the legislature, is universally recognized. Further, the power of removal is so great that the power of direc- tion has the greatest possible administrative sanction. 3. Ths ordinance power, — Among the President's powers which relate not so much to the personnel of the service as to the actual conduct of the administra« tive business of the government may be mentioned the ordinance power. It is a well recognized principle of French law that the President has a general power to supplement the law by means of ordinances, even where the legislature has not expressly delegated any such power to him. The ordinances are known to the French law as decrees. This power of supplementary ordinance results from the constitutional law, ♦ which imposes upon the President the duty of watching over and securing the execution of the laws. ^ The reason why such an interpretation should be put upon this clause, when in the United States a similar clause has * Aucoc, <^. cit., I., p. 106. • L., April 5, 1884, arts. 85, 86. » L., August 10, 1871, art. 35 ; L., April 5, 1884, art. 43. *L., February 25, 1875. 'Aucoc, op. cit., I., 108 ; Ducrocq, op. cit., I., 57 ; Boeuf, op. cit., 14. ( UNIVERSITY J 86 CENTRAL ADMINISTRATION. received such a different interpretation, is to be found in the monarchical traditions of the country. It results from the old idea that the residuary governmental power of the land is vested in the chief executive, who may therefore issue ordinances, which supplement existing laws, and do not conflict with either their letter or their spirit. But besides this power of sup- plementary ordinance many statutes have expressly" delegated to the President the power to issue decrees which regulate in detail such points as the legislature has not seen fit to regulate itself. All decrees issued in either of these ways have the same characteristics as the laws which they supplement. They are binding upon individuals who in case they violate them may be subjected to the penalties provided by law. * Certain of these decrees are called decrees of public administration, viz.^ those which the President issues as a result of a delegation of the ordinance power of the legislature. In the issue of these decrees of public administration the President has, as a rule, wider powers than in the case of the supplementary ordi- nances. For this reason it is a general principle of the French law that the President shall before issuing them ask the advice of the council of state. \ Wherever the law requires such a formality, its non-observance would make the decree void, though at the same time it is to be noticed that the President is never bound to act in accordance with the advice which has been given by the council of state. This is a peculiarity which is characteristic of the entire French administrative law. The purpose of the provision is to ensure sufficient ^ See Art. 471, No. 15 of the Penal Code. ^ L., May 24, 1872, arts. 8 and 13 ; Ducrocq, op. cit., I., 57. EXECUTIVE POWER IN FRANCE. 87 deliberation on important subjects, and at the same \ time a concentrated responsibility for the action taken, which is always regarded as the action of the officer issuing the decree and not that of the council whose advice is asked. To act is the function of one, to de- , liberate that of several, is the fundamental principle of French administration. Besides the general acts or ordinances which the President has the power to issue, he has often the power to issue a decree which affects only some one particular individual case. Thus he opens by means of a decree supplementary appropriations,^ declares that certain public works are of public utility, which ' means that the right of eminent domain may be exer- cised ^ ; exercises by .special decree the administrative control which is given to the central government over the actions of certain local corporations. This power is not nearly so large now as it formerly was.^ The President also grants by special decree certain charters and concessions, e. g., for railways of minor importance and for mines. ^ The President must always exercise these powers through one of his ministers, who must countersign his act and thus becomes responsible for it to the legislature. ^ 4. Remedies against Ms action. — The remedies open to the individual against the acts of the President are much greater than under the American system. The control of the courts over his penal ordinances is the same as in the United States. That is, if any one is ^ L., September 16, 1871, arts. 31 and 32. '^L., July 27, 1870. * Infra, p. 271. "* Boeuf, op. cit., 15. * L., February 25, 1875, art. 3. 88 CENTRAL ADMINISTRATION. prosecuted before the courts for the violation of an ordinance or decree of the President, the courts may refuse to convict on the ground that the decree is not legally made, since the penal code gives the courts the power to punish violations of only ordinances which are legally made.* Further, any one may appeal from any act of the President, not of a political character, directly to the council of state, which may annul it if it has been done in excess of the powers possessed by the President or in violation of the law, and may amend and modify it so as to render justice in case it violates an individual right. Finally, any one who deems him- self aggrieved by an act of the President may petition the legislature which may hold the minister responsible who has countersigned it.^ » Penal Code, Art. 471, No. 15 ; Boeuf,<^ «'/., 17. » Aucoc, op, cH,y I., 113. CHAPTER V. THE EXECUTIVE POWER AND AUTHORITY IN GERMANY. /. — The prince. 1. An authority of general powers, — In Germany, as in France and for the same reason, the conception of the executive power and of the position of the chief executive authority, as exemplified in the prince, is much broader than it is in the United States. Conse- quently, the chief executive authority is more impor- tant, certainly from the administrative point of view, than in the United States. Monarchical traditions have led to the adoption of the theory that the entire gov- ernmental power of the land is vested in the prince who is quite irresponsible.' But in order that such a theory may not lead in its application to absolute gov- ernment, a corollary of the principle adds, that the prince may act only in a certain way, and that in order that he act even in that way some one shall be responsible for each one of his acts.'^ The constitution therefore places important limitations on his action, but where no such limitation exists the prince is recognized as having the governmental power. The prince is, different from the American President and governor, not an authority * Schulze, Deutsckes Staatsrecht, I., 187. ' Ibid.^ Meyer, Deutsches Staatsrecht, 186, et seq. 89 90 CENTRAL ADMINISTRATION. of enumerated powers, but is the possessor of the residuum of governmental power in the partition of the' governmental power made by the constitution. He may therefore exercise the governmental power in such instances and in such ways as best suit him, provided that the constitution has not given the exer- cise of the power to some other authority and has not designated the way in which the power shall be exer- cised. The express limitations upon the power of the prince become thus of the same importance as the enumerated powers of the United States President, and the prince possesses, even in the absence of special grant, provided that the constitution has not taken such power from him, both the political and the ad- ministrative powers. 2. Limitations of his power. — The constitutional limitations of the power of the prince belong, it is true, rather to the domain of constitutional than to that of administrative law, but they must be considered briefly in order to reach a clear understanding of the position in the administrative system of the German prince. In the first place, by the princely constitutions the consent of the legislative body is necessary for the valid- ity of all legislative acts affecting the freedom of the person and property ^ ; for the fixing of the budget of the expenses and receipts and the levying of taxes."^ The judicial power, i, e., the decision of controversies in regard to the private and criminal law, has been given to courts over whose actions the prince can exercise no influence whatever.^ Finally every official act of the ^ Meyer, Staatsrecht, 408 ; Schulze, op. cit., I., icjo. ' Meyer, op. cit.^ 204, 205. ' Schulze, op. cit.. I., iqo. EXECUTIVE POWER IN GERMANY. 91 prince, whatever be its nature, must be countersigned by some one of the ministers who assumes the respon- sibility for it either to the legislature or to the criminal courts, generally to the latter.^ In the second place, the imperial constitution has seriously limited the political powers of the prince although it has not changed the legal theory that the prince possesses all the governmental powers not granted specifically to some other authority. Thus the princes have lost for the most part their diplomatic and military powers^; a certain part of their legislative power, indeed almost all their legislative power over the relations regulated by the private law, while cer- tain branches of administration which were formerly attended to by the princes have been transferred to the imperial government.^ 3. His administrative pmoers. — As a result of these principles and of these limitations the German prince at the present time has the following administrative powers : a, A wide power of appointment which extends to many of the officers in the localities and is not in any case limited by any principle of ministerial responsi- bility to the legislature. The prince is not obliged to keep or obtain the confidence of the legislature in the selection of his advisers and agents.^ b. The prince has a wide power of removal even of local officers — a power which in some cases may result in the actual dismissal from office of an objectionable officer, in other and most cases may result simply in ' Meyer, op. cit., 186 ; Schulze, op. cit., I., 191, 298. 'Const., art. 11. ' ^ For the details see the Const., art, 4 ; Meyer, Staatsrecht^ 176 et. seq, ^ Schulze, op. cit. I., 299, 320. 92 CENTRAL ADMINISTRATION. retiring the officer from active participation in the work of administration. In such cases the retired officer is still regarded as an officer with most of the privileges and duties which are attached to the official relation/ This power is also unlimited by the necessity of obtain- ing or keeping the confidence of the legislature.^ G, The prince has a wide power of direction to be exercised, however, in all cases through ministers who become criminally responsible and sometimes responsi- ble to the legislature for all the acts by means of which the power of direction is exercised.^ d. The prince has a large ordinance power over all matters which have not been regulated in detail by the legislature.-* There is somewhat of a conflict among the commentators as to how large this ordinance power is, but the better opinion would seem to be that where the constitution has not assigned limits to the ordinance power, and where the statutes of the legislature have not regulated a given subject, the prince may regulate any matter by ordinance.^ In accordance with custom based upon this theory many things are in Germany regulated by ordinance, both independent and supple- mentary ordinance, which in the United States are regulated by statute. This ordinance power must, how- ever, be exercised through some one of the ministers, who must countersign the ordinance and becomes re- sponsible as in the other cases for his acts. From the juristic point of view the acts of the prince * See infra, pp. 94, 118 ; II., lOO. ' Schulze, op. cii., I., 341. ' IHd., 298 ; Bomhak Preussisches Staatsreckt, I., 144. * Schulze, op. cit., I., 528 et. seq. ^ Gneist, Verwallung, yusiiz und Rechtsweg, sec. 74 ; Bornhak, op. cit,^ Im 436. EXECUTIVE POWER IN GERMANY. 93 are in almost all cases the acts of the ministers. The remedies offered to the individual against the acts of the prince must therefore be found in the remedies offered against the acts of the ministers.^ //. — The Emperor, 1. General position. The German Emperor, who is the chief executive authority in the imperial govern- ment, Occupies quite a different position from that of the prince in the separate members of the empire.) While the prince possesses all the governmental powers which have not been given to some other authority, thef Emperor is an authority of enumerated powers:; He thus occupies, from the administrative point of view, about the l^ame position which is occupied by the United States President.^) The constitution^ declares that the King of Prussia shall be German Emperor. The provisions of the Prussian constitutioQ relative to the King are of value therefore as to the tenure of the Emperor, but the questions arising therefrom, as well as all questions arising in regard to the political powers of the Em- peror, belong to constitutional law and will not be treated here.* 2. Powers relative to the official service, — The ad- ministrative powers of the Emperor relate, in the first place, to the official service of the empire. Among this class of powers may be mentioned "a power of appoint- ment^ A general power of appointment is given by 1 For these see infra, p. 158 ; II., pp. 177, 188. ^ One of the best of the German commentators on this account regards the governmental form of the empire as a republic. Zorn, op. cit., I., 162. 3 Art. II. *See Burgess, op. cit., II., 2()^et seq. 94 CENTRAL ADMINISTRATION. tlie constitution to the Emperor. ^ This clause is somewhat modified by other provisions, as well as by certain statutes whose result is some- what to limit the broad power of appointment, by requiring either the presentation or the confirmation of the person to be appointed, by the Federal Council, or a committee thereof. ^ In addition to this general power of appointment, the constitution further gives to the Emperor the(Sole power of appointing the imperial chancellor,^ who is the only responsible minister in the imperial administration.^ The only limitation of this power is to be found in the requirement that the (chan- cellor must be a member of the Federal Council^ But this does not amount to much, inasmuch as the\Einperor as King of Prussia has the right of appointing several members of the Federal Council. Further a power of removal is to be mentioned.^ This power of removal is not, however, an arbitrary one. For in accordance with the principles which have been all but universally adopted in the German administrative system, discharge from office may take place only as the result of the con- viction by a criminal or a disciplinary court of the commission of a crime, or the violation of official duty.^ In order, however, to permit the Emperor to secure a harmonious administration, he is permitted to retire most of the officers who occupy places involving the ex- ercise of large discretion. The official relation is not, however, broken by such retirement, but the officer receives a portion, three quarters, of his pay, and is subject to all the duties and enjoys all the privileges ^Art. i8, sec. i. *Zom, op. cit., I. 195 et seq. * See infra, p. 118. ' Const., art. 18. 3 Art. 15. 'C/. L., March 31, 1873. EXECUTIVE POWER IN GERMANY. 95 connected with the office, with the exception of that of performing official acts.^ The power of direction is recognized as existing in the Emperor in accordance with the general principles of a hierarchically organized service, of which the Em- peror is the head. This power of direction is, however, Cexercised under the responsibility of the chancellor, who must countersign all the acts by means of which it is exercised.^) Exactly what the responsibility of the chancellor is, no one seems to be able to say. All that it practically amounts to, on account of the fact that legislation has never elaborated it, is that the chancellor 1 may be called upon to defend his policy before the! Federal Council. 3. Ordinam^e power, — The Emperor is further recognized by the constitution^ as the head of the administration, and as such has powers and duties affecting the administrative services. He is to (execute the imperial laws,^ and is to represent the empire.^ tHe does not, as a result of this position, have any ordinance power except such as may be expressly mentioned in the constitution, or may be delegated to him by the legislature.^ The constitution has given him the ordinance power in one or two instances, but has not given to him any general power even of supple- mentary ordinance.^ In the exercise of this ordinance power it is often necessary that the Emperor get the consent of the Federal Council ^ ; and all his ordinances » Ibid., Meyer, Staatsrechi, 393. "* Art. 17. » Const., art. 17. ' Art. 11. ' Arts. 12-19. * Zorn, op. cit., I., 132. ' Arts. 50 and 63, respectively, give the Emperor the power of supplementary ordinance relative to the posts and telegraphs and the army. * Zorn, oJ>. cit., I., 132. 96 CENTRAL ADMINISTRATION. must be countersigned by tlie cbancellor, who assumes responsibility therefor.' In some cases, finally, his ordinances must be submitted to the imperial diet for its approval." In this limited power of ordinance is to be found almost all of the power of the Emperor over the administrative services, all the details being worked out by the chancellor and his assistants. As the Emperor is irresponsible, there are strictly speaking no remedies against his action, except such as are to be found against the action of the chancellor.^ * Const., art. 17. ' Zorn, op. cit., I., 133. 'For these see infra, p. 158 ; II., pp. 177, 188. CHAPTER VI. THE EXECUTIVE POWER AND AUTHORITY IN ENGLAND. /. — General power of the Crown. The theory which governs the distribution of powers in the English government is in principle the same as that which governs the distribution of powers in the princely governments of Germany. The Crown has the residuum of governmental power. All the governmental powers which have not been expressly granted to some other authority belong to the Crown; and the Crown may act in the exercise of its powers as it sees fit, so far as no express limitations have been put upon its action. The only difference between the English and the German systems is to be found in the fact that in Germany the distribution of governmental powers and the limitations on the exercise of the powers of the executive are to be found in a written constitution, while in England it is the Parliament ultimately which decides what powers shall be exer- cised by the Crown and how it shall exercise them.^ This position of the English Crown results from the ab- solute character of the government established by the early Norman Kings. " The Norman idea of royalty," says Dr. Stubbs,^ "was very comprehensive . . . It combined all the powers of national sover- eighty, as they had been exercised by Edgar and ' Burgess, op. cit., II., 198, 199. ' Constitutional History of England^ I., 338. 7 97 98 CENTRAL ADMINISTRATION. Canute, with those of the feudal theory of monarchy, which was exemplified at the time in France and the Empire." The King was thus both the chosen head of the nation and the feudal lord of the whole land. Further, the Norman idea of the kingship discarded the limitations which had been placed on either the continental or Anglo-Saxon monarchs — in England, the constitutional action of the witan, and on the continent, the extorted immunities and usurpations of the feuda- tories.' At first the Crown was not hereditary, but later it became so ; and its power grew to be absolutely despotic.^* Soon, however, this despotic power became limited by the necessity of the concurrence of the action of Parliament, which we find well developed by the latter part of the thirteenth century, and whose consent was necessary for the imposition of taxes, and also for the enactment of all rules of law which affected the ordinary relations of individuals. For whatever had once been enacted by Parliament became a part of the lex terrce and therefore, in accordance with the old Teutonic principle, could not then be changed without the consent of the people as ex- pressed by Parliament, its representative.^ Later on, Parliament assumed to itself the right to initiate as well as to approve law; and finally the Crown lost through misuse its original power to refuse its consent to what Parliament does.* ' Ibid. * Cf. Gneist, Das Englische Verwaltungsrecht, 1884, p. 214 and passim. Anson, The Law and Custom of the Constitution, II., 56 et seq. * See Gneist, op. cit., 207. * Though the general opinion seems to be that the veto power of the Crown has become obsolete, Mr. Todd thought that this power though dormant might be revived. See Parliamentary Government in England, 2d edition, II., 390- 392 ; cf. also Burgess, op. cit., II., 201. EXECUTIVE POWER IN ENGLAND. 99 //. — Limitations on the power of the Crown, The result of this development is that Parliament has assumed most of the legislative power, since it has by- statute regulated most important subjects. The Crown may still, however, regulate any matters which have not been regulated by Parliament and has thus quite a large ordinance power both independent and supplementary.^ Parliament has also assumed the exercise of the taxing power and has in several cases forbidden the Crown to levy taxes without its consent.^ The Crown has further lost almost all its judicial power.^ But it has retained in large part its old executive powers together with the power of ordinance which has already been alluded to. In the exercise of these powers the Crown has, however, been seriously limited in its ac- tion. For at the same time that Parliament was devel- oping there was also developing another body by which the action of the Crown has always been more or less controlled. This was the Privy Council.^ The consent of this body has become necessary for the valid exer- cise of the ordinance power.s Finally, every act of the Crown must be performed under the responsibility of one of the members of the Privy Council who alone are the responsible advisers of the Crown.^ The adop- tion of this principle was necessary because the legal theory of the English government assigns to the Crown a position of absolute irresponsibility. The king can do no wrong is one of the fundamental English maxims.^ * Cf. Burgess, op. cit., II., 199. * E.g. see Petition of Right, 3 Car. I., c. i. X. ; and Bill of Rights, I. William and Mary, 2d Session, c. 2. * Bill of Rights and the Act of Settlement, 11 and 12 William III., c. II. * For its history see infra, p. 122. ' Ihid., I,, 116, 266. * Todd, op. cit., II. 80. ■> Anson, op. cit., II., 41. loo CENTRAL ADMINISTRATION, But with these limitations of the power of the Crown, the Crown may do anything. In certain cases the Crown "acts in Parliament," as the expression is, in others in council, or some privy councillor is responsible for its acts. The English Crown is not therefore an authority of enumerated powers but may do anything which it has not been forbidden to do. The limita- tions on the power of the Crown become as important in England as the enumerated powers of the President in the United States. What these limitations are has already been shown. As a result of them and of the general theory, the Crown has the administrative ^ as well as the political power. The Crown has the power to create offices, to appoint in many cases their incum- bents except in the case of local administrative officers who are usually elected, to remove them except as above, and to direct them how to act. The Crown is therefore the chief of the administration as well as the political head of the government. The position of the Crown is, however, greatly modified by the adoption of the principle that the advisers of the Crown, without whom the Crown cannot act, must possess the confi- dence of the party in the majority in the lower house of Parliament, must practically be its nominees.^ This principle of parliamentary responsibility plays the same role in England as in Prance which borrowed it from England. It puts the Crown in the position of reigning but not governing. But, just as in France, the theory of the distribution of powers has a great influence on the action of the administration ; for the advisers of the Crown may with the consent of the Crown do everything which this theory permits the » Anson, op. cit., II., 53. ' Todd, op. cit., II., 134 and 142. EXECUTIVE POWER IN ENGLAND. loi Crown to do. So long as the Crown and its ministers have the confidence of the lower house of Parliament they have most extensive executive powers, greater perhaps than in any other country. Thus the Crown in council may declare war and make treaties of peace ^ which in all other countries can only be done with the consent of the legislature, or that of one of the houses of the legislature as in Germany. It is only when the Crown and its ministers lose the confidence of the lower house of Parliament that the principle of the freedom of action of the Crown in the exercise of the powers left to it by Parliament is susceptible of limita- tion. And in such cases it must be remembered that the result of the lack of confidence is not that Parlia- ment proceeds to take action itself but that the Crown has to choose new ministers who will have the confi- dence of Parliament or dissolves Parliament in the hope that the new house will have confidence in the existing ministers. In all cases it is the Crown and not Parlia- ment which administers. As the Crown is in theory irresponsible there is no remedy against its acts except such as is to be found against the ministers who may have countersigned the acts of the Crown, thereby assuming responsibility therefor.'^ But, as in the United States and France, the courts may refuse to enforce the ordinances of the Crown in case they regard them as illegal.^ ^Ibid.^ I., 351 gtseq. ' For the remedies against the acts of the ministers see infra p. 158. 3 Todd, op. cit., I., 461, citing Attorney-General v. Bishop of Manchester, L., R. 3, Eq. 436. Division 2,— Mcecmtime Councils, CHAPTER I. THE EXECUTIVE COUNCIL IN THE UNITED STATES. /. — General position. By the side of the executive authority there is often placed a council to which is given some sort of a con- trol over executive action. In almost every one of the American colonies there vras a body known as the council of the governor, the members of which were appointed by the King, and whose consent was neces- sary for the validity of certain of the acts of the gov- ernor. With the governor it formed one branch of the colonial legislature.* When the colonies became independent, in several of them this institution was retained and exists at the present time. Thus in the commonwealths of Maine, Massachusetts, and New Hampshire we find still a governor's council whose consent is necessary for the governor's appointments.^ In others, the council as such has disappeared, and the powers which it possessed have been transferred to the upper house of the legislature.^ This is the general rule at the present time and is true of the national government and of the commonwealth of New York.* ' So in New York, see supra, pp. 53, 57. ^ Ibid., sec. 210, C. ' See Stimson, op. cit., sec. 210, B. •* Supra, p. 77. 102 EXECUTIVE COUNCIL IN UNITED STATES. 103 The powers which these councils or the senates as executive councils possess at the present are some- what different in the national and commonwealth governments. //. — In the national government. In the national government the only power which the Senate possesses over the administrative acts of the President is the power to refuse its consent to the most important of his appointments. For a time it had also the power to prevent the President from re- moving those officers for whose appointment its con- sent was necessary ; but with the repeal of the tenure- of-office acts^ this power was lost.^ In addition to this control over the purely administrative acts of the Presi- dent, the Senate also has the power to control one of his political powers. All treaties negotiated by the President must, to be binding upon the government, receive the approval of the Senate to be expressed by a two-thirds vote.^ These powers which the Senate possesses over the acts of the President must not be classed among its legislative powers. For, though the Senate is an important legislative body, it is at the same time an executive council and the only executive council in the national government ; and when acting as such, acts separately and apart from the other legis- lative body, the House of Representatives. When so acting it is said to be in executive session and may sit at a time when the house of representatives is not in 1 Supra, p. 65. ' The Senate has such a power only in those cases in which the statutes of Congress expressly recognize it as ^. ^. in the case of the postmaster-general. United States Revised Statutes, sees. 388 and 389. * Const., art. ii., sec. 2, par. 2. / I04 CENTRAL ADMINISTRATION. session, whicli may not be the ease when it is acting as a part of the legislature. Nothing is more common than to see the Senate summoned for a special session when Congress has adjourned or is not in session. Further, the Senate as an executive council may be distinguished from the Senate as a part of Congress by the difference in procedure which is followed in the two cases. When it acts as an executive council its sessions are as a rule secret, while its sessions as a part of the legislature are open to the public. The reason of this rule is to be found in the delicate character of the business which comes before it when acting as an executive council. ///. — In the commonwealths. While the United States Senate has a control over certain of both the political and the administrative acts of the President, the commonwealth Senate, acting as an executive council, and the governor's council, which is elected by the legislature in Maine,^ but elsewhere elected by the people,^ has control over only the administrative acts of the governor. Its con- trol over these administrative acts is, however, more extended than the similar control of the Senate over the acts of the President. For the rule in the various commonwealths is, that the consent of the executive council is necessary not only for appointments but also for removals.^ What has been said with regard to the separate session of the national Senate when acting as an executive council, may be repeated here. * Maine Constitution, art. 5, 22. ^ Stimson, op. cit., sec. 202, B. 8 For New York see supra, p. 79. See also Maine Constitution, art. 9, sec. 6 ; Stimson, sec. 210 ; c/., Bryce, American Commonwealth, I., 468. EXECUTIVE COUNCIL IN UNITED STATES. 105 IV. — Comparison, It will be seen from this description of the executive council in the United States that its most important function is to control one of the administrative powers of the chief executive and that this control is exercised especially over his relations with his subordinates. Through it the power has been taken away from the chief executive to constitute the official personnel as he sees fit. This limitation of his power naturally involves a lessening of his responsibility. The evil effects of such a plan may be avoided only through the moderate use by the Senate of its powers of control. In the national government this has fortunately been the policy of the Senate almost from the beginning of our administrative history. It may be laid down as one of the customary rules of our constitutional law that the Senate should permit the President complete freedom in the filling of the most important administrative posi- tions.' Almost the only cases in which the Senate habitually exercises any control over the President's power of appointment are the judicial appointments. The Senate has, however, not been so careful to leave the President free hand in the exercise of his political powers. There are not a few cases in our history where treaties negotiated by the President have not obtained the confirmation of the Senate. One reason for the distinction which is thus made is undoubtedly to be found in the fact that the approval of treaties requires a two-thirds vote of the Senate ; but another is as un- doubtedly to be found in the fact that while the Senate has felt that its control over the President's power of * Cf. RUttiman, op. cit., I., 276, and authorities cited. io6 CENTRAL ADMINISTRATION. appointment should be made use of only in such a way as not to hamper the action and limit the responsibility of the President, it may properly interfere to prevent the conclusion of a treaty which in its opinion is not for the best interest of the country. In administration the President is to be supreme in order that the govern- ment may be efficient and harmonious ; in his political relations the President is to be subject to some control. The commonwealth executive council has unfortu- nately not always adopted this conservative rule, but has frequently made an immoderate use of its power of control over the administrative powers of the governor with the result that the governor's responsibility for appointments has been all but destroyed. Nothing is more common in the commonwealth than to see the Senate reject the governor's appointees for no other reason apparently than that it does not think the ap- pointments conducive to the interests of the political party in control of that body, or in order to force the governor to take some action approved by it. CHAPTEK II. THE EXECUTIVE COUNCIL IN FRANCE. /. — History, The executive council in France has always played a much more important role than has been assigned to it in the United States. At one time it was much more important even than now. In its intelligence and fair- ness were found almost the only guaranty of a good and impartial government.^ The most important exec- utive council was originally the great council of the king, which at one time discharged almost all the func- tions of government. From this was developed the Parliament of Paris, the first purely judicial body that France possessed, and the royal council which assumed the administrative powers of the great council.^ In the reign of Louis XIV the royal council was divided into five sections, each of which attended to certain branches of the administration. The section which corresponded most nearly with our ideas of an executive council was known as the council of despatches.^ This organization lasted almost unchanged up to the time of the revolu- tion, when the constituent assembly re-organized the government of France and abolished the executive ^ Aucoc, op. cit., I., 126. * Ibid., 127. ^ Ibid., 128. 107 io8 CENTRAL ADMINISTRATION. council.^ Witli the advent of Napoleon, the executive council was revived, a new council, called the Council of State, beino^ established. Under the direction of Napoleon it accomplished an enormous amount of work. Indeed, this was the most brilliant period of the execu- tive council in France. Its duties were largely legis- lative in character, and it decided all difficulties that arose in the course of the administration of the govern- ment.^ The Council of State was so closely associated with the glories of the empire, that the attempt was made under the government of the restoration to do away with it, but this failed and the council resumed its place in the government. During the government of the restoration, as well as under the July monarchy, the Council of State was regarded as an executive coun- cil exclusively, a legislature having been formed in the meantime which relieved it of its legislative duties ; but with the republic of 1848 the council was made use of by the legislature to control the acts of the executive authorit}^.^ During the second empire the legislative functions of the council were very much in- creased, and it was again almost the only guaranty of impartial government. When the present republic was formed, with a legislative body of great power, the council was again relegated to the position of an ad- visory executive council; which position it occupies at the present time. //. — Organization. The organization of the present Council of State i8 governed by the laws of May 24, 1872, and July 13, 1879. In accordance with these laws it is composed of thirty-two councillors of state in what is known as ^ Ibid., I'ii. ^ Ibid., 122. » /^iV., 133. EXECUTIVE COUNCIL IN FRANCE. 109 ordinaiy service, eighteen councillors of state in what is known as extraordinary service, thirty Commissioners (maitres des requetes), and finally of thirty-six auditors, twelve of whom are of the first class, and twenty-four of the second class. The ministers have the right to attend the deliberations of the general assembly of the council, and to vote on matters ^^ffecting their depart- ments, when the council is not acting as a court. The Council of State is, when not acting as a court, presided over by the Keeper of the Seals, minister of justice, and in his absence by a vice-president appointed by the President of the republic from among the councillors of state in ordinary service. The method of appointment for the different classes of the members differs. Thus the councillors of state in ordinary service are ap- pointed and dismissed by the President of the republic after hearing, but not necessarily taking, the advice of the council of ministers.^ The councillors of state in extraordinary service are chosen by the President of the republic from among the members of the adminis- tration, whose advice it is considered desirable to have in important administrative matters. They receive no pay, as do the other councillors of state, and have no vote when the council is acting as a court. The com- missioners are appointed by the President of the re- public on the presentation of the vice-president of the council and the presidents of the different sections into which the council is divided, and are dismissed after hearing the opinion of these officers. The auditors are appointed as the result of a competitive examina- tion, the auditors of the first class being chosen from those of the second class. 1 L., Feb. 25, 1875, art. 4. no CENTRAL ADMINISTRATION. For all these different classes of officers there are conditions of age whose intention is to secure only those persons from whom the government can hope to obtain the best work. These conditions of age vary from not less than twenty-one and not more than twenty- five years for the auditors of the second class to not less than thirty years for the councillors of state. While the President is not limited in his choice of coun- cillors of state in ordinary service, who are the most important of the members, the intention of the law is to facilitate the choice of such officers from among the commissioners who in their turn will be chosen from among the auditors of the first class. As the subjects for the competitive examination for the position of auditor are law, politics, and political economy the Council of State will ordinarily consist of a body of experts in political and administrative matters whose advice must, in the nature of things, be of the greatest value both to the administration and to the legislature. The Council of State is divided into four administra- tive sections and one judicial section. Each of the administrative sections has a certain number of admin- istrative departments to advise ; while the judicial section is occupied altogether as an administrative court.* The council acts in section, in sections united, and in general assembly. Only the most important matters are attended to in the general assembly, to which they go after examination by one of the sections or by two or more sections united. What affairs are to go to the general assembly is decided by the laws of the country and the by-laws of the council ; and where it is provided that any matter shall go to the general ^ Boeuf , op. cit., citing Decree Aug. 2, 1879. EXECUTIVE COUNCIL IN FRANCE, in assembly, where the examination is much more thorough than in the sections, this is an absolutely necessary pre- requisite to the validity of the action subsequently taken.^ ///. — Fu fictions. The functions of this council are both legislative and administrative. The legislative functions are much less important now than formerly. Its intervention in legislative matters is now altogether optional with the legislature which may send any bill which is before it to the council for its advice. The executive which, it will be remembered, may initiate law, may also send any bill which it is proposed to submit to the legisla- ture to the council for its advice and may by decree designate any of the councillors of state to support any of its bills before the legislature. Its administrative functions are, however, very important. In the first place the advice of the council must be asked for all ordinances of public administration or decrees in the form of ordinances of public administration.^ When it is remembered that it is the habit of the French legislature to incorporate into the statutes . only very general principles and expressly to delegate to the ex- ecutive the power to regulate details by an ordinance of public administration it will be seen what an impor- tant function the Council of State discharges in work- ing out, as it does, the details of almost all statutes. Finally the traditions of the French government lead the President and the ministers to submit to the council all questions which are valuable as offering precedents for future action.^ This custom alone makes the work * Aucoc, op. cit.^ I., 144 and 145, citing several decisions of the council. * Supra, p. 86. ^ Aucoc, op. cit., L., 143. 112 CENTRAL ADMINISTRATION. of the council very large. Its advice is nearly always asked as to the exercise of the central control which the executive authority possesses over the actions of the localities, and over the recognized religious denom- inations ; as to the grant of charters ; and as to many acts in the financial administration. Indeed it may be said that what in this country and in England is done by means of special and local legislation is in France done by the decrees of the President or orders of the ministers issued after hearing the advice of the Council of State.^ An idea of the extent of the work of the Council of State may be obtained from the fact that from 1861 to 1866, 88,888 matters were submitted to the council.^ It should be added that the character of the questions which are submitted to the Council of State is almost altogether legal and political. Techni- cal questions are submitted to other councils attached to each of the administrative departments such as the general council of public works and of mines, the com- mittees of infantry, of cavalry, and fortifications, etc,^ etc!" While it is necessary in many cases that the advice of the council must be asked in order that an act of the government be legal it is to be noticed that, in accord- ance with the principle of French administration that to act is the function of one, which has already been alluded to,* the government is never bound by the advice of the council but may reject it if it sees fit. ^ De Franqueville, Le Gouvernement et le Parlement BritanniqueSy III., 119-228 ; cf. Dicey, The Law of the Constitution, 3d Ed. 50. ^ Aucoc, op. cit.^ I., 144 citing Moniieur Universel March 30, 1862 and Sept. II, 1868. 2 Aucoc, op. cit., I., 146. ^ Supra, p. 86. EXECUTIVE COUNCIL IN FRANCE. 113 The French executive council thus differs radically not only in composition but also in functions to be dis- charged from the American executive council. It is composed of experts in administration while the Ameri- can executive council is merely a part of the legislature. While the main duty of the American executive council is to control the action of the executive authority in the exercise of the one function, which, in order to secure an efficient and harmonious administration, he should discharge on his own responsibility and subject only to the control which the people may exercise on election day ; the duty of the French executive council is to advise the executive in the discharge of the important function of issuing ordinances and to fill up those details of the law which it is the policy of the French that the legislature shall not regulate but shall be regulated by a body of specialists. Even in such matters the French are so afraid of a diffusion of responsibility that they 1 do not permit the executive to be bound by the advice which his council may give him. To permit the Coun- cil of State to control the President's power to choose his subordinates would be regarded as a gross violation of the fundamental principles of good administration. 1 CHAPTER HI. THE EXECUTIVE COUNCIL IN GERMANY. /. — In the princely governments. As in France, so in the separate members of the German empire, the executive council was for a time, ^. e, after the disappearance of the feudal estates, almost the only organ through which the absolute monarchy- was at all limited. During this period of its history it was known as the Privy Council.' Later the Privy Council became known as the Council of State.^ In Prussia under Stein and Hardenburg it did an immense work — work mostly of a legislative character inasmuch as there was no legislature in Prussia at the time. In this Council of State were drawn up most of the great laws which did so much towards the reorganization of Prussia at the beginning of this century.^ It was only natural that, when the revolution of 1848 brought with it the creation of a legislature, the council should retire into the background although it was not formally abolished.* In 1852 the attempt was made to revive the institution with which so much that was good was associated, but failed. It is said that from 1848 to 188^ ^ Stengel, Organisation der Preussischen Verwaltung^ 55 ; Meyer, Deutsches Staaisrecht, 258 and 259. ' Stengel, Organisation^ etc., 60. ^ Ibid., 67. * Loening, Deutsches Verwaltungsrecht^ 70. 114 EXECUTIVE COUNCIL IN GERMANY. 115 the council met but twice/ Again in 1883 the attempt to revive it was repeated and of late it seems to be acting once more. The reason for this second attempt was to obtain a body to which the government might have recourse for advice as to bills which it was in- tended to submit to the legislature. But its composi- tion is not such as to secure a body similar to the French council, as it is to be composed of prominent personages appointed by the King as he sees fit.'^ In addition to this council which has not as yet at- tained to any great importance there is in Prussia a council of a somewhat special character, formed by ordinance of November 17, 1880, and called the Coun- cil for Economical Affairs. It is composed of seventy- five members, chosen for the most part from men engaged in the pursuit of commerce, manufacturing industry, and agriculture. It is divided into three sections, each of which represents one of these three pursuits, and is presided over by the competent minister. The duties of the council are to give its opinion in regard to all projects of law or ordinances which affect the most important economical interests, and to consider what shall be the vote of Prussia in the Federal Council on these matters. As a rule, the government is under no obligation to consult this council.^ In some of the other members of the empire, notably in Bavaria and Wiirtemberg, a council of state is to be found, but as in Prussia it is of little importance as an executive council.* '^ Ibid. » Cf. Bornhak, Preussisches Staatsrecht, II., 396. ' Bornhak, op. cit,, II., 396 ; Loening, Deutsches Verwaltungsrecht, 70. * Cf. Stengel, Worierbuch des Deutschen Verwaltungsrecht ^ art. Staaisrat, ii6 CENTRAL ADMINISTRATION. II. — In the empire. i 1. Organization, — In the empire the Federal Coun- cil, which is also the upper house of the legislature, has, as an executive council, a series of executive functions to discharge. While resembling those dis- charged by the United States Senate when acting in a similar capacity, these functions are of much greater importance. So important indeed are the executive functions of the Federal Council that some of the German commentators regard the Federal Council as the chief executive, and relegate the Emperor to the position of its subordinate, who is to carry out its de- cisions.O This body is composed of representatives sent from the twenty-five members of the empire,'^ each of which has a number of votes varying with its importance. All the votes of each member must be cast in the same way and in accordance with instruc- tions which have been issued to its representatives in the council by each of the members of the empire, but the council is not called upon to examine into the correspondence of the vote with the instructions given.^ The council meets periodically and as an ex- ecutive council may meet when the other house of the legislature is not in session.* It is presided over by the imperial chancellor,^ and acts either in general assembly or in committees of which four are provided for by the constitution, and three additional by sub- sequent legislation.^ The general principles that govern the formation of these committee^, exclusive of ^ Cf. Zorn, op. cit., I., 136 to 142. " Constitution^ art. 6. 3 Ibid., arts. 6 and 7 ; Meyer, Staatsrecht, 318 ; Zorn, op. cit., I., 146. * Constitution, arts, 12 and 13. ^ Ibid.y art. 15. • Ibid.^ art. 8 ; Zom, op. cit., I., 148 <"/ seg. EXECUTIVE COUNCIL IN GERMANY. 117 that on foreign affairs, are that four members of the empire shall be represented on each committee besides Prussia, which presides. The members of most of the committees are designated by the council, though in a few cases the constitution assures to particular mem- bers a permanent seat, and also provides in other cases that the Emperor may appoint the members which are to be represented. The committee on foreign affairs occupies a peculiar position. It was formed to flatter the amour propre of Bavaria, Wiirtemberg, and Saxony. Therefore Prussia is not represented upon it, and it is composed of representatives of these districts and two other members of the empire, to be elected by the council.^ It is said that (this committee has not met once in the history of the empire ; so its importance as a controlling factor in the diplomacy of the. empire is not very great.^ 2. Functions. — The Federal Council occupies a very peculiar position. It may be regarded as a branch of the legislature and as an executive council for the con- trol of the action of the Emperor, and finally it must be admitted that it is an executive authority which may take action irrespective of the Emperor. Its main function is, however, the control of the action of the Emperor. Like the United States Senate the Federal Council has a control, in certain respects more, in certain re- spects less, extended, over the relations of the execu- tive, ^. e, the Emperor, with the federal official service, L e., over the personnel of the service. Thus it par- ticipates either in general assembly or in. committee in * Meyer, Siaatsrecht^ 322, citing the rules of the council. * Zorn, op. cit., I., 151. ii8 CENTRAL ADMINISTRATION. the appointment of certain of the imperial officers. * The appointment itself is made in theory by the Em- \ peror, but the Emperor in making the appointment is either limited to the names presented by the council or else must consult with it or with one of its committees. The officers appointed in one or the other of these ways are the Imperial commissioners )to supervise the collec- tion of the customs and the indirect taxes, which are collected by the governments of the separate members of the empire ; the (judges) of the imperial court at Leipsic; the (members of the imperial poor-law y board, of the imperial disciplinary) court and chambers, of the vin valid fund commission,; and of the directory of the imperial bank.^ The council further participates in the disciplinary power exercised over the officers of the empire and in the settling of the amount of their pensions.^ It will be remembered that the (Emperor"' has not the arbitrary power of removal, but that the ( official relation can be terminated against the will of : the officer only by conviction of a crime or by the judg- ment of a disciplinary court, which may also inflict penalties less severe than discharge from the service.^ The supreme disciplinary court is composed of five members of the imperial court at Leipsic chosen by the Federal Council and of four members of the Federal Council chosen by it. The Federal Council further participates in the act-: ual administration of the empire. It is the principal \ organ for the issue of ordinances and has the supple- ' mentary ordinance power.* In general a simple major- ^ Const., art. 36 ; Zorn, op. cit., I., 156, and authorities cited. ' Ibid., 158. ' Supra, p. 94. * Const., art. 7, sees, 2 and 3 ; Zorn, op. cit., I., 129. EXECUTIVE COUNCIL IN GERMANY. 119 ity vote is all that is necessary for the validity of an ordinance of the Federal Council. (In case of a tie vote, the vote of the presiding state, Prussia, decides, v but in (certain cases (in the main tax and military matters) the presiding state has the power of unconditionally vetoing a proposition aiming to change existing law.^ ' While the .Federal Council has the ordinance power in case the constitution has not expressly given it to any other authoritypthe constitution itself in several cases gives the ordinance power to some other authority and also provides that an imperial statute may give some other authority the power to issue ordinances in partic- ular cases.^ Finally, it is to be noticed that in several r cases, where the constitution or the statutes permit the \ Emperor to issue ordinances, provision is made at the ( same time that such ordinances to be valid must have received the approval of the Federal Council. ^ The Federal Council has also (quite a control over ' the financial administration of the empire.) Thus it | examines by means of one of its committees the quar- terly accounts of the separate members of the empire relative to the customs and indirect taxes collected by them, and in general assembly fixes the amount each member shall pay into the imperial treasury as a ma- tricular contribution.'* It is also to act as the highest instance of control over the customs and indirect tax administration and has the power to remedy any defect that may appear in the system of collection. ^ The Federal Council is also to examine the accounts of the imperial chancellor so as to see whether he has made ^ Const., art. 7. 2 md^^ arts. 35 and 37. * Jbid,^ art. 7, sec. 2 ; Zorn, op. cii., I., 131. * Const., art. 39. 'Zom, op. cit., I., 157. I20 CENTRAL ADMINISTRATION, proper use of the imperial revenue and, in case every- thing is in order, is formally to relieve him from all responsibility therefor.^ It exercises a control over the imperial debt and the imperial bank in that it appoints a certain number of the members of the com- missions which attend to these matters.* Its consent* is necessary to all the Emperor's ordinances relative to ', the war-treasure.^ Finally the Federal Council exercises a control over) certain of the political acts of the Emperor. Thus its \ consent is necessary for the declaration of war, for the i making of certain treaties/ and it is to decide when ' what is known as federal execution shall be decreed ' against any member of the empire for neglect or refusal to discharge its duties to the empire.^ This is a power peculiar to the German imperial system. Though more properly treated in works on constitutional than in those on administrative law, its administrative aspects are so important that it deserves special mention in this connection. Different from the United States' constitution the German imperial constitution recog- nizes expressly in the imperial government the right to \ enforce by the army if necessary the performance of \ the constitutional duties of any member of the empire. ' It is needless to say that up to the present time there has been no occasion for the exercise of this power,/ but there may be a time when the express mention of such a power will be of great advantage to the imperial government as the existence of such a provision would! > Const., art. 72. * L., June 19, 1868, sec. 4 ; L., March 14, 1875, sec. 5. * L., Nov. II, 1871, sees, i and 5. * Const., art. 11. ' Ibid.^ art. 19. EXECUTIVE COUNCIL IN GERMANY. 121 have been to the United States national government at the beginning of the civil war/ 3. Hemedies against its action, — There are no remedies against the acts of the Federal Council ex- cept what are to be found in the power of the courts to declare its ordinances invalid in case it attempts to issue an ordinance in excess of its powers. It would seem that, in accordance with the general principles of German law, the courts have the right to refuse to enforce an unconstitutional ordinance though, it must be said, there appears to be no case in which the courts have so refused. The decisions, however, show a tend- ency on the part of the imperial court to claim such a power.'^ * As to the difficulty which the national government had in finding some theory upon which could be based its right to put down the rebellion in 1861, see Dunning, " The Constitution in Civil War," in the Pol. Sci. Qu., I., 163. ' See Stengel, Deutsches Verwaltungsrecht^ 180 ; Entscheidungen des Reichs- gerichts in Strafsachm, xii., 40; xiii., 321. CHAPTER IV. THE ENGLISH PRIVY COUNCIL. /. — History, In the discussion of the powers of the English Crown it was shown that at the time the Parliament was developing its legislative powers there was being developed a council which was to control the Crown in the exercise of its executive prerogatives. This council arose out of the old curia regis. While the Parliament from the first tried to exercise a control over the taxing and legislative power of the Crown the council was originally formed more to aid the Crown in the performance of its administrative and judicial duties than to control its actions/ What its relation to the national council or Parliament was is really un- known.^ We find, however, in the reign of Henry I a judicial organization called the curia regis, which, organized separately as the exchequer, attended also to the financial administration.^ It was not, however, till the minority of Henry III that a really important council can be spoken of.* At that time its existence is clear and its action is traceable in every department of work, and it becomes permanent and continuous. ^ Stubbs, Constitutional History of England, I., 343. ^Ibid., 376. » Ibid., 377, 387, and 601. ■* Ibid., II., 255. 122 THE ENGLISH PRIVY COUNCIL. 123 From that time on it contained the officers of state, and of the household, the whole judicial staff, a number of bishops and barons and other members simply called councillors. What the qualifications of the members were is unknown. Its functions were of a varied character, but its distinguishing characteristic was its permanent employment as a court.^ It had also ad- ministrative and executive duties to perform. Thus originated what was soon afterwards and now is called the Privy Council, which from the time of Henry III constantly increased its powers and multiplied its functions, retiring somewhat into the background under strong kings, coming forward under weak or unpopular kings, but always growing in power until it came to be recognized as a power almost co-ordinate with the Crown. It aided the Crown in the performance of its duties and also came finally to exercise a control over its actions.^ Since the development of the Privy Council in its modern form it has lost a great many of its powers. Most of its judicial functions were taken from it at the time of the abolition of the Star Cham- ber.^ Parliament has robbed it of its most important legislative functions, while an informal body known as the cabinet has taken from it actually, though not legally, most of its powers as the adviser of the Crown in the work of administration. //. — Organization, At present the Privy Council is composed of about two hundred persons appointed by the Crown. Every English subject is eligible to appointment.'^ The ele- ' Ibid.,\\., 256. ' 16 Car., I., c. 10. * Ibid., III., 247. * 7 and 8 Vict., c. 66, sees, i and 2. 124 CENTRAL ADMINISTRATION. ments of which it is formed are at present the same as during the middle ages. These are the chiefs of the various departments, and, as the appointment is prac- tically for life, the chiefs of departments under former administrations, certain judicial officers, and other im- portant officers, such as the Speaker of the House of Commons, the Commander-in-Chief, and a large repre- sentation of the secular and ecclesiastical peerage. Legally the position of privy councillor is only for the life of the reigning monarch and six months thereafter, but re-appointment, on the coming to the throne of his successor, is made as a matter of course. Discharge is very infrequent.^ This council meets once in three or four weeks at the residence of the Crown, and no member is expected to be present who has not received a special invitation. The quorum is fixed at six with the clerk, whose signa- ture is authentication of its deliberations.'^ ///. — Functions. The main duty that the council, as council, now has is to advise the Crown as to the issue of ordinances, which are known on that account to the English law as orders in council. Its approval of proposals of ordinances seems to be necessary, since no ordinance not issued in council is valid.^ This power is really a very important one, since many matters are regulated by orders in council which in this country are attended to by the legislature. Further, as the result of the development within this century of a central adminis- * Gneist, Das Englische Verwaltungsrecht, 1884, 103 ; cf. Anson, op. cit., II., 135. ' Gneist, op. cit., 194. » Supra^ p. 99. THE ENGLISH PRIVY COUNCIL. 125 trative control, the duty is imposed upon the council of examining a series of ordinances issued by the local authorities whose validity is made to depend upon its approval.^ Finally its members are the only constitu- tional advisers of the Crown, and it is only as mem- bers of the Privy Council that the various ministers are permitted to advise the Crown.^ As each member of the cabinet must thus be a privy councillor, it follows that the action and advice of the Privy Council are con- trolled by the cabinet, so that the existence of the Privy Council does not in any way weaken that re- sponsibility of the ministers for the action of the Crown, which plays such an important role in the English governmental system. Out of this Privy Council have been developed several boards, which are really executive departments. Some of these, like the board of trade and the board of agriculture, are now completely separated from the council,^ while others have not yet attained a similar independence, but the president of the council is regarded as respon- sible for their action. Such is, e, g,, the committee of council for education, commonly known as the educa- tion department.-* Finally we find the judicial com- mittee of the Privy Council, which is a court of appeals for ecclesiastical and colonial cases.^ Mention has been made of a cabinet which practi- cally controls the action of the Privy Council. This body was developed largely for the reason that the Privy Council was too large a body to attend effect- ually to the work of administration. Therefore it was ' Infra, p. 260. ' Anson, op. cit.y II,, 179 et seq., 186. » Cf. Anson, op. cii., II., 134. * Ibid., 187. * Gneist, op. cit., 189. 126 CENTRAL ADMINISTRATION. the habit of the king to choose a certain number of its members in whom he had special confidence and from whom he asked advice. These met together in an inner room or cabinet of the palace, and from this circumstance the name of cabinet was given to the body of ministers whom the king chose to advise him/ This practice, after the Restoration, was regarded as a dangerous one, but the cabinet grew more and more in power until at length it drew to itself the chief execu- tive powers in the government, and is now regarded as an essential feature of the English polity. Yet it is altogether unknown to the law ; the names of the per- sons of which it is composed are never officially an- nounced to the public^; no record is kept of its proceedings,^ and it is only as a result of its identity with the controlling factors of the Privy Council that it has any powers.* * Todd, Parliamentary Government in England^ 2nd YA. 11., 92. ^IHd., 181. ^ Ibid., 178 ; Macaulay, History of England, IV., 435, 437. * For the history of the development of the cabinet, cf. Anson, op, cit,^ locx Dwidon 8, — Heads of Depa/rimenta, CHAPTER I. DISTEIBUnON OF BUSINESS AND METHOD OF OBGANI- ZATION. /. — Method of distributing business. In all countries, whether the chief executive author- ity be the head of the administration or simply the political head of the government, there are officers who are to attend to the details of the administration. The name usually given to such officers is that of ministers, since they are generally regarded as the servants of the chief executive authority and since it is through them alone that he can act. They are regarded as the con- stitutional organs of the executive for the discharge of his powers, and generally have to countersign every one of his acts for which they assume the responsibil- ity. In addition to this they have in all states almost always the position of chiefs of particular administra- tive departments whose affairs they are to direct. This is true even in those countries, of which the United States is an example, where they are not responsible for the acts of the executive. On this account the American law has chosen for these officers the title of 127 128 CENTRAL ADMINISTRATION. heads of executive departments. Since the following pages are devoted to a consideration of their adminis- trative functions, their political functions where they exist being relegated for detailed treatment to consti- tutional law, these officers will be considered under the title of heads of departments. It has been shown that in all countries there are five well developed branches of administration, viz., for- eign, military, judicial, financial, and internal affairs. All the different matters requiring attention from the administration will fall under one of these five branches. It has come to be well recognized, that the best arrangement of administrative business is to place some one authority at the head of each of these branches, and where it is found by experience to be necessary to make a further specialization, to take out of one of these five departments thus formed some particular matter or matters and form a separate department for its or their management. Thus we generally find that the matter of naval affairs is taken out of the depart- ment of military affairs and put in charge of a special department.* Again we find that the care of public works is often given to a separate department. Often also the ques- tion of education becomes so important as to demand a separate authority for its management. So also in some states with agriculture and with commerce. In all these cases it will be noticed that the principle of the distribution of administrative business among the * In the United States naval affairs were originally in charge of the war department, but were soon put in a special department, where they have ever since remained. See Guggenheimer on ' * The Development of Executive De- partments " in Jameson, Essays in the Constitutional History of the United States y 179. This is an excellent historical sketch of the departments. METHOD OF ORGANIZATION, 129 departments is the division of the work according to its nature ; and to us of the present age any other method of distribution seems preposterous. But this method has not always been followed. In most of the European states all administrative matters were origi- nally attended to by one organ, generally a board or council of some sort. In this body the distribution of business was made according to geographical lines rather than according to the nature of the business to be transacted.^ Indeed such a system of geographical division was in force in one of the English departments up to quite a late date. Up to 1782 the secretariat of state was divided into the northern and the southern departments, and each division attended to all matters whether internal or external to be attended to in its territorial district. But in 1782 the secretariat was divided into a foreign and a home office.^ At the present time even, there are a few instances of this system of geographical division. In England there are a secretary for India,^ one for Scotland,* and an Irish secretary.^ In Germany there is an office for the imperial territory of Alsace-Lorraine,^ while in the Austro-Hungarian empire there are several instances of such an arrangement. ^ //. — Power of organization. An important question connected with the sub- ject of the departments is who shall organize them? Shall it be the executive or the legislative authority ' Cf. Schulze, op. cit., I., 291. ' Cox, Institutions of the English Government, 666. 3 21 and 22 Vict., c. 106. * 48 and 49 Vict., c. 61. •^ Todd, op. cit., II., 848. • Zorn, op. cit., I., 428. ' (jumplowicz, Das Oesterreichische Siaatsrecht^ i6i. VOL. I. — 9 I30 CENTRAL ADMINISTRATION. that shall have the organizing power ? In the United States it is the legislature alone which possesses the organizing power. The national constitution has not expressly provided for this matter. Indeed, the constitution does not expressly provide for the organization of executive departments, although it impliedly recognizes their existence in two places/ It permits the President to require the opinion in writing of the heads of the executive departments, and allows Congress to vest the power of appointing in- ferior officers in the heads of such departments. The last clause cited speaks of " offices established by law," and has been interpreted in our constitutional practice as giving to the legislature the organizing power. In- deed, it has been the rule from the foundation of the government that the executive departments and offices generally may be established by Congress only.^ Fur- ther, not only are the departments themselves organ- ized by Congress, but also their internal arrangements, and the powers and duties of their heads and of the heads of the various divisions into which they may be divided are often regulated in detail by statute, gen- erally by the statute organizing the department. In some cases it is true Congress will declare that the head of this or that department shall do certain things, and then will leave to him the organization of the par- ticular division which it is necessary to form in order to perform the duty thus placed upon him. But this is now rarely the case, and then only where the most unimportant divisions of the departments are con- ^ Art. ii., sec. 2, pp. i and 2. ' C/. RUttiman, op. cit., I., 274, citing Benton, Thirty Years* View, II., 678. METHOD OF ORGANIZATION. 131 cemed. It was in this way, however, tliat some of our present administrative departments were developed. In the separate commonwealths there are seldom to be found in the constitution any express provisions as to the organizing power. The only ones relating at all to the departments are those which themselves or- ganize the executive departments. These are very commpn and sometimes forbid the establishment of new offices.* The result of such provisions is that the constitution-making authority is the organizing power, and not the commonwealth government or any branch thereof. Where, however, the constitution has not made provision, in accordance with the usual rule of interpreting the constitution, it is the legislature and not the executive which has the organizing power. For while the executive is an authority of enumerated powers, the legislature has all governmental power not given to some other authority, if the constitution has not expressly limited its powers.^ Where the com- monwealth legislature acts, however, it does not, as a rule, descend into the same detail as does Congress. The commonwealth statutes are usually absolutely silent as to the divisions which shall exist within a given department. They simply provide for a certain department, and the legislature each year or every two years grants in its appropriation acts a sum of money to the head of the department, leaving him perfect freedom as to its distribution. At the same time it must be noticed that the departments in the common- * See Nebraska Constitution, art. v., sec. 26 ; In re R. R. Commissioners, 15 Neb., 682. ' Bank of Chenango v. Brown, 26 N. Y., 469 ; People v. Dayton, 55 N. Y., 380. 132 CENTRAL ADMINISTRATION, wealth administration are much more special than the national departments, So that in reality the facts are about the same in the commonwealth and the national administration. In the United States, both in the na- tional and the commonwealth government, then, it is the legislature which possesses the organizing power, and in practice it exercises its power in such a way as to regulate in detail the organization of the depart- ments. In France the rule is not the same. There, with very few exceptions, it has always been recognized that the organizing power belongs to the chief execu- tive authority,^ subject, however, to the necessity of going to the legislature in case any re-arrangement of offices or the establishment of new offices makes neces- sary a greater expenditure of money. In Germany the rule is the same as in France. Of course in both countries the legislature may act if it sees fit when it would be impossible for the executive to make any changes, since a statute is always of greater force than an executive decree or ordinance.^ In England the theory seems to be about the same as upon the continent.^ The only practical diiference is to be found in the fact that Parliament has in most of the recent cases of the establishment of an office or a department exercised an organizing power, with the result that most of the departments of any importance owe their existence to a statute and therefore cannot be modified by executive ordinance. ' Boeuf, op. cit.^ 21. 'In some instances in Germany the departments are, as in the American com- monwealths, fixed by the constitution. C/., for the organizing power in Ger- many, Loening, op. cit., 55-57 ; Schulze, op. cit., I., 297. ^ Todd, op. cit., I., 609-660. METHOD OF ORGANIZATION. 133 The method of organization l^^m^ executive would seem the preferable one, inasmuch as the executive is in a better position to know the needs of the administra- tion than is the legislature, and is responsible for vtte actions of the administration. Further it can act m^ quickly than can the legislature. What the adminis- tration gains in stability from the fact of its being organized by the legislature it loses in flexibility. T^ control which the legislature has over the finances is sufficient to prevent the administration from incurring .. too great expense in any change that it may wish to make. Indeed the danger of extravagance on the part of the administration is not in modern times so great as it is on the part of the legislature. We have a good instance of this fact and of the disadvantages of giving to the legislature the organizing power in the conditions of the United States customs service. It is the opin- ion of several of the secretaries of the treasury expressed in their annual reports that there is an unnecessary number of customs collection districts; and the secre- taries have repeatedly recommended to Congress the abolition of the less important ones, with of course the mustering out of the service of the officers now assigned to them. But Congress has uniformly refused to fol- low the suggestions of the secretaries ; it has been thought because of the loss which would accrue to the members of Congress as distributors of Federal patron- age. If the power of organizing the official service had been recognized in our system as belonging to the President we might hope for some reform in the direc- tion indicated, but so long as it is possessed by Con- gress it seems almost hopeless to expect that this much needed reform will be accomplished. .'* CHAPTEE II. TERM AND TENURE OF THE HEADS OF DEPARTMENTS. The relations of the heads of departments with the chief executive authority are of the greatest import- ance, for on their nature depends whether there is to be a harmonious administration following out some general plan or whether the head of each department is to be a law unto himself and is to be able to con- duct the aifairs of his department in such manner as he sees fit regardless of the needs of other departments and of the wishes of the chief executive. These relations of the heads of departments with the chief executive are governed 'by two things almost entirely, viz., the term and the tenure of office of the heads of departments. /. — In the United States, The constitution of the United States and the con- stitutions of the commonwealths differ considerably in this respect.^ The former instrument as interpreted gives to the chief executive the power to appoint, re- move, and direct all the heads of departments. The commonwealths, however, have pursued a different plan. In most of the original commonwealths the chief ' Supra, pp. 62-82. 134 TERM AND TENURE, 135 executive did not have tlie ab|^^k power of appoint- ing the heads of the commo^^^^Bi deparWtents. The tendency was to fill these (SJIF^at firsi ^ appoint- ment by the legislature, as was the rule originalJlUn some of the commonwealths, then by election bj^Ke people, which is the rule at present. It is said ^ ^lat ^' all the executive officers are, as a general rule in ^11 the states, elected by the people at a general electicfll." There are of course a few exceptions to this rule, as, in New York, the superintendents of public works and prisons, who are appointed by the governor and senate.^ Finally there are still instances of the appointment of heads of departments by the legislature. Thus in New York the superintendent of public instruction is ap- pointed at the present time in this way.^ As far as the continuance of the term of office is concerned, the methods adopted in the commonwealths differ as much as the methods of filling the offices. But in most cases the term of office of the heads of departments is fixed either by the constitution or the statutes at a certain number of years. The term is not generally the same for all offices, nor does it always coincide with that of the governor.'* The result is that it is not necessarily the case that all the officers who are to conduct the com- monwealth government belong to the same political party or that they share the same views as to the way in which the commonwealth administration shall be * Stimson, op. cit., p. 42, art. 20 B. ' Const., art. v., sees. 3 and 4 ; cf. Stimson, loc. cit. ^ L.,1864, c. 555, sec.i; cf. Stimson, loc. cit. In some of the commonwealths such a power is regarded as unconstitutional, as being in violation of the prin- ciple of the separation of powers. Supra, p. 24 ; State v. Kennon, 7 Ohio St., 560. * Supra, p. 78. 136 CENTRAL ADMINISTRATION. conducted. Furtlier"t^e governor cannot usually in case of conflict prodileei .a uniformity in views by the removal of tlie head of ;jj| department.^ What now are the relations existing between the chief executive authority and the heads of departments in the American system of administration which result from this state of facts ? In the national administra- tion the heads of the departments are completely subordinate to and dependent upon the chief executive authority as a result of the precariousness of their tenure and will be in harmony one with the other and with the President on account of the fact that they have been chosen by him to fill their respective posi- tions as a result of his knowledge of their opinions. We find therefore in the national administration com- plete guaranties for an efficient and harmonious ad- ministration under the direction of the President. In the commonwealths, however, the case is quite different. Each head of a department has, so long as he is not corrupt, the right to conduct the affairs of his department just about as he sees fit ; and is practically independent of the governor who has little or no influ- ence over affairs of administration. The constitutions of some of the commonwealths have been honest enough to recognize what is the real position of the governor and what is that of the heads of the depart- ments, and devote an article to the consideration of the " administrative " officers of the commonwealth, among whom the governor is not included.^ But whether the constitution recognizes this or not, the fact is the same, that the governor is not the head of the administration ^ Supra, p. 79. * See Florida Constitution, 1881, art. 5, sec. 17. TERM AND TENURE, 137 in the commonwealths of the American Union. Ameri- can administrative law has addied to the famous trinity of Montesquieu a fourth department, viz.y the admin- istrative department, which is almost entirely inde- pendent of the chief executive and which, as far as the central administration is concerned, is assigned to a number of officers not only independent of the gov- ernor but also independent of each other. This inde- pendence which each of the heads of departments in the American commonwealths may claim under the law has resulted in there being little attempt made to secure uniformity in administrative action. While in the national government every President tries to sur- round himself with advisers who have the same general views as to the conduct of the government and calls regular meetings of his heads of departments, popu- larly termed cabinet meetings, when these heads of departments may exchange opinions on the important questions which come up before them for settlement ; in the commonwealths we seldom hear of any such thing as a meeting of the heads of the departments.^ Such a meeting would be of little use as there resides nowhere the power to compel a head of department to change his opinion so as to suit that of the governor or that of his colleagues. In a word, in the common- wealth administration there are seldom any guaranties for efficient and harmonious action on account of the independent position of the heads of departments not only over against the governor, but also over against each other. This is not merely a theoretical objection to the commonwealth system of administration. For the jealousies and prejudices of the various heads of ' But see Florida Const., art. 5, sec. 17, and Iowa Code, 1888, p. 32. 138 CENTRAL ADMINISTRATION, departments and their conflict with the governor do in practice not infrequently lead to an absolute cessation of the work of administration. //. — In France, In France, as in the United States national adminis- tration, the term and tenure of the heads of depart- ments are such as to place them in a relation of apparently complete dependence upon the President. But French political history has assigned to the minis- ters a much more important role to play. In one of the constitutional laws now in force is contained the provision that the ministers as a body are responsible to the legislature.^ This means that they must com- mand the confidence of the majority in the chamber of deputies. One of the results of this law has been to make the relation of the ministers, as a body, to the President one of great independence. If no further steps were taken there would be little guaranty for a harmonious and efficient administration under the di- rection of one person. For each minister is the legal equal of the others. But the French parliamentary system has, in fact, taken another step. It has gradu- ally come to recognize in the president of the council of ministers a superior of the other ministers. He it is who is politically the person exercising the powers which the President has lost over his ministers as a re- sult of the adoption of the principle of the parliamen- tary responsibility of the ministers. He is actually, though not legally, the chief of the administration. Now in the case of the formation of a new ministry the President " sends for " some prominent statesman, * L., Feb. 25, 1875, art. 6. TERM AND TENURE. 139 who will command temporarily at least the confidence of the Chamber of Deputies, and appoints him president of the council of ministers. As president of such council he has legally no greater powers than his col- leagues whom he causes the President to appoint, but actually he it is who is the chief of the French govern- ment ; and all the other ministers are subordinate to him. He has the power of forcing them out of office in case he is dissatisfied with their actions. For he has the confidence of the President of the republic who has the legal powers of removal and direction. The presidency of the council of ministers is often held by the minister of foreign affairs. Such is the actual condition of affairs in the French republic. Owing to the possession by the President of the republic of the powers of both chief of government and chief of administration, and to the fact of their exercise by the president of the council of ministers subject to keeping the confidence of the Chamber of Deputies there exist still guaranties for the harmonious conduct of the administration, notwithstanding the real weakness of the apparently powerful position of the President of the republic, through the adoption of the principle of the parliamentary responsibility of his ministers. ///. — In Germany, In Germany the high position of the Emperor and the princes in their respective governments, as the actual as well as the legal chiefs of government and administration, ensures the carrying on of the govern- ment harmoniously. The parliamentary system has I40 CENTRAL ADMINISTRATION, never taken root in Germany.^ In the empire the chancellor is the only responsible minister.^ All the other heads of departments are simply his subordi- nates, and are appointed and dismissed by the Emperor on his recommendation.^ They are merely secretaries of state and must follow the directions of the chancellor. As the chancellor is appointed and dismissed by the Emperor, the heads of the imperial departments are completely dependent upon the Emperor, and sufficient guaranties exist for a harmonious administration. In the separate members of the empire the condi- tions are not, however, exactly the same. While the parliamentary system has not taken root in Germany the constitutional system has. This demands that the legally irresponsible prince shall exercise his powers through responsible ministers — ministers responsible at any rate before the criminal courts.) For this reason each minister must countersign all important acts of the prince which bear upon his particular department, and thereby assumes the responsibility therefor. The pendency of such a system is of course to break up somewhat the uniformity and harmony of the adminis- tration. For a minister might block the action of the prince, although it might be approved by his col- leagues, by refusing his counter-signature, or might by his single advice commit the prince to actions which were not approved by his colleagues. Of course much of the danger of such a thing is obviated by the exist- ence in the prince of the power to dismiss a minister who refused to countersign an act which the prince * Schulze, op. cit., I., 299; Meyer, Staatsreckt, 184. ' Const., art. 17. 'Zom, op. cit., I., 2or, citing L., March 17, 1878. TERM AND TENURE. 141 thought was within his powers.^ But there is pro- vided a further guaranty of harmonious administra- tion in the " state ministry," as it is called. This is ^composed of all the heads of departments who meet in common session, as a rule under the presidency of the prince,y)r of one of the ministers designated by the prince and having the title of minister-president.^ His position is not at all like that of the French president of the council of ministers or the imperial chancellor. On the contrary, though the title of minister-president may bring with it additional dignity, he has no greater legal powers than any of the other ministers, with the exception of presiding over the meetings of the minis- try in the absence of the prince.^ The Wain function of the state ministry is to preserve harmony and uni- formity in the policy of the administration.) On this account it is generally settled by law or ordinance what matters shall be decided by it, while further the prince may generally send any matter to it for decision. Among the matters which by law or ordinance are to come before it are all government bills and drafts of general ordinances, the appointment of all the higher administrative officers, and generally all matters which do not come entirely within the competence of one minister. Further, whenever the views of one of the ministers do not coincide with that of the prince the matter is to be submitted to the state ministry .-♦ \In all of these matters, however, the state ministry acts sim- ' Cf. Loening, op. cii., 62. 2 Ibid., 66. ' Bornhak, Preussisches Staaisrecht, II., 389. In Prussia an ordinance of 1852 has, however, provided that in most matters the ministers shall communi« cate with the king through the minister-president. * Loening, op. cii., 67. 142 CENTRAL ADMINISTRATION. ply as an advisory body and simply lays before the prince the result of its deliberations and then he decides the matter. Its decisions of themselves have no legal force v^hatever ; and never bind any one of the minis- ters v\^ho does not think that they are right. This, it is believed, would interfere with the principle of the responsibility of the ministers for the acts of the irre- sponsible prince. But if a minister cannot conscien- tiously carry out a decision of the state ministry he is at liberty to resign, while, if he does not so resign, the prince has the right to remove him from active partici- pation in the administration.* Such are the means adopted in the princely governments of Germany to secure a harmonious administration. The position of the prince as the head of the administration is so well recognized and his right to appoint, dismiss, and direct his agents is so well recognized that theoretically it might be said that the state ministry was a useless in- stitution. It does, however, perform a useful function if it does nothing more than make the advice, which is given to the prince by the heads of departments, uni- form. For it is only through the action of the minis- ters that the action of the prince has any political effects. IV, — In England, In England the heads of departments are chosen somewhat in the same way as in France. That is, the Crown, on the occasion of the resignation of a ministry, sends for some eminent statesman who is a recognized leader in one or the other houses of Parliament and who * Ibid., Schulze, op. cit., I., 303. TERM AND TENURE, 143 has the confidence of the party which is in majority in the House of Commons and asks him to form a ministry/ If the person so selected accepts the trust, he himself is to select his colleagues.^ All of the persons whom he selects are ministers though all are not necessarily members of that informal board, the cabinet, which, it has been shown, controls the action of the Privy Council and the Crown. Each is also a privy councillor, and it is in this capacity alone that the ministers may advise the Crown. For a long time it was doubtful whether the cabinet was to act as a board or whether it was to be governed by the wishes of the one member of it who was distinguished from the rest as the prime-minister or premier. Some of the ministers claimed that after their appointment they were responsible to the Crown alone and were in a position of independence over against the prime-minister at whose request they had agreed to act as ministers. This claim led to a conflict between Lord Palmerston who was foreign secretary and Lord John Kussell who had been entrusted by the Queen with the duty of forming a ministry and who had chosen Lord Palmerston for the portfolio of foreign affairs. Lord Palmerston sent off certain despatches which had not received the approval of Lord John Russell. The latter officer obtained a note from the Queen in which it was distinctly said that the Queen did not wish any despatches to be sent before they had received her approval. Lord Palmerston disobeyed the order contained in this letter and was dismissed from office.^ This precedent has finally settled that the » Todd, op. Hi., I., 330., II., 183. « IHd., I., 332. * For a full history of this episode see Todd, op, cii,, II., 265 et seq, Cf» also Anson, op, cit,^ II., 116 ei seq. 144 CENTRAL ADMINISTRATION. prime-minister is to direct the policy of tlie govern- ment and has a control over the actions of all the other ministers and members of the cabinet — that their rela- tion to the prime-minister is one of dependence. The position of prime-minister is nearly always associated with that of first lord of the treasury. The reason why the first lord of the treasury is generally prime- minister is that the first lord has no portfolio and may devote himself entirely to the consideration of questions of general policy. Further there is associated with this office a much wider power of appointment than is possessed by any other office in the government. It is now generally recognized that the first lord has a control over all appointments which may have an important influence on the general policy of the govern- ment. Thus he controls the appointment of all im- portant ambassadors and ministers, certain colonial governors among whom is the governor-general of India, the commanders of the army and navy, the bishops, and the presiding justices of the courts at Westminster, and has the presentation to all the Crown benefices.^ From what has been said it will be seen that the acting executive in England is the prime-minister. He controls the actions of the members of the cabinet and the ministers, who are quite dependent upon him and who in their turn control the action of the Crown and the Privy Council and are themselves controlled by the necessity of keeping the confidence of the party in majority in the House of Commons. By this method of developing the principle of parliamentary responsi- bility there are as in France sufficient guaranties for a ' Gneist, Das Englische Verwaltungsrecht, etc., 1884, 218,219. TERM AND TENURE. 145 harmonious administration notwithstanding that in legal theory the position of each of the ministers is of equal importance with that of any of the others. V, — Comparison. This review of the relations of the heads of depart- ments with the acting chief executive shows that the almost universal rule is, that the heads of departments are dependent upon the chief executive ; and that, if dependence is not absolutely secured, provision of some sort is< made to secure harmony in the action of the administration. The only country which does not make some such provision is the United States. Here though, as a result of the development of the office of Pi'esident, the national administration has been cen- tralized under his direction, in the separate common- wealths seldom does it seem to be considered necessary to have an administration so formed as either to shut out the possibility of conflict or to settle such conflicts as may arise. The experience of the world is against the administrative arrangements in the commonwealths, and our own experience has shown us that such an arrangement leads to conflicts in the administration which not only diminish its efficiency but in some cases have absolutely caused a cessation of administrative work. CHAPTER III. POWERS AND DUTIES OF HEADS OF DEPARTMEIH^. Notwithstanding tlie general subordination of the heads of departments to the control and direction of the chief executive authority, still in all countries they have a series of duties, generally administrative in character, which they may perform largely indepen- dently of the action of the chief executive, in so far as they have not received positive directions from him. This is so even in monarchical governments/ More than this is true in the commonwealths of the United States, where the heads of departments often have functions to discharge with which the chief executive has little if any thing to do. First to be mentioned among their powers are those which affect the person- nel of the official service. /. — The power of appointment. In all the countries under consideration the law grants to each head of department the power to appoint at least the subordinate officers of the department. In the United States national government the con- stitution provides that Congress may grant to the heads of departments the power to appoint ' Loaning, op. cii., 62. 146 POWERS AND DUTIES. 147 to inferior offices/ Numerous laws have granted to the heads of departments such a power, so that now the great mass of the officers of the United States national government are appointed by the heads of the departments. Several laws have, however, limited this power in permitting the President to issue rules regulating the mode of appointment. Notable among them is the civil-service law of 1883. Most of the important subordinates of the heads of departments are, however, appointed by the President or the Presi- dent and Senate.^ In the commonwealths the rule is the same. Thus, in New York the Public Officers Law ^ declares that all subordinate officers, whose appointment is not other- wise provided for by law, shall be appointed by their principal officer. It is expressly provided by law that many of the agents of the central government in the localities shall be elected by the people. In some of the commonwealths the power of appointment of the heads of departments is limited in the same way as in the national government. This is so in New York and Massachusetts.* In France the rule is that the heads of departments shall appoint all but their most important subordinates who are appointed by the President. Very few of the subordinates of the departments who are acting in the localities are elected by the people thereof. It is, how- ever, to be noted that many of the subordinate officers of the departments as, e. ^., the less important postmas- ters, are appointed by the representative of the central * Art. ii., sec. 2, p. 2. ^ See United States Revised Statutes, passim. ' L., 1892, c. 681, sec. 9. "* Infra, II., p. 35. 148 CENTRAL ADMINISTRATION. government in the localities, viz.y the prefect. He appoints many officers who in this country would be appointed by the heads of departments.^ Where the heads of the departments have the power of appoint- ment, they must be guided in their exercise of the power by the rules laid down in the decrees of the President relative to the method of appointment, which, like our civil-service rules, require often that the appointment shall be the result of a competitive examination open to all persons having the necessary qualifications.^ In Germany the rule is very much the same as in France. The law permits the Emperor or the prince, in whom the constitution vests the power of appoint- ment, to delegate the exercise of this power to his sub- ordinates.^ But laws and ordinances lay down in great detail the qualifications of appointment, which are more severe than in any other country, especially for the higher positions. Finally many of the subordinates of the imperial administration are appointed by the com- monwealth governments and not by the heads of the imperial departments,'* while a few of the subordinates of the princely governments in the localities are elected indirectly by the people.^ In England, too, the rule is almost the same.^ The first lord of the treasury has a greater power of appointment than the heads of the other departments, ^ Aucoc, op. cit.y 119, sec. 62 ; Block, Dictionnaire de V administration /ran- ^aise, 753. ^ Infra, II., p. 47. 3 Imperial Constitution, art. 18 ; Meyer, Staaisrecht, 363. ^Loening, op. cit., 120 ; Schulze, op. cit., 332. ^ Infra, pp. 303, 307, 315. «Todd, ^/. «/., II., 532. POWERS AND DUTIES, 149 having the appointment of all officers who have an important influence on the government.^ Here, as else- where, the heads of departments must be guided in the exercise of their powers of appointment by the rules issued by the Crown relative to the method of appoint- ment, which for the purely subordinate positions is usually as the result of a competitive examination.^ In England quite a number of the subordinates of the departments in the localities are elected by the people of the localities. This is true of the poor-law and sanitary administration.^ //. — The power of removaL In the United States national government it was early laid down by the courts that the power of removal was incident to the power of appointment."* Therefore whenever the heads of departments have the appointing power, they have, in the absence of express statutory provisions to the contrary, the power of re- moval also. The same rule is true in the commonwealth government.5 In not a few cases, however, especially in the case of the representatives of the central common- wealth government in the localities, the duration of the office is fixed by statute. Removal in these cases is made only for cause, and then by the governor and not by the heads of departments.^ Neither in the national nor in the commonwealth government have 'Gneist, Das Englische Verwaliungsrecht, 1884, pp. 218, 219. * In England these rules are issued by the civil-service commission as a result of the delegation to it of the power by an order in council. Infra, II., p. 53. ^ Infra, p. 248. ^ Ex parte Hennen, 13 Peters, 230. ^ People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437 ; cf Mechem, Law of Officers, sec. 445. • E. g. see N. Y. L., 1892, c. 681, sec. 23. I50 CENTRAL ADMINISTRATION, the civil-service laws attempted to limit directly the power of removal of the heads of departments. In France the power of removal of the heads of departments over their subordinates is practically com- plete. Whatever officers they may appoint they may also remove.* The same is true in England, where the power is exercised in theory by the Crown on the advice of responsible ministers.^ The power of removal of the head of one of the departments is very much greater than in the matter of appointment. The Local Government Board in London has the right and the sole right to dismiss the subordinate officers of the various boards of poor-law guardians — whose appoint- ment is made by the guardians subject simply to the approval of the local government board .^ In Germany, however, the power of removal of the heads of departments is not nearly so great as their power of appointment. As has already been said, the German law generally recognizes office as a vested right which cannot be taken away from its possessor except as the result of conviction of crime, or of a judgment before a regular disciplinary court.'^ In compensation for the absence of this power the heads of departments have the right to impose lighter disciplinary punish- ments, such as fines, for dereliction of duty.s ///. — The power of direction and supervision. While the different countries differ very little in the matters of the powers of appointment and removal of the heads of departments we find a difference in the ' Aucoc, op. cit.y I., 119, sec. 62. ^ 34 and 35 Vict., c. 70. * Todd, op. cii.^ I., 629, 636. * Supra^ p. 94. ^ Infra, II., p. 87. PO WERS AND D UTIES. 15 1 extent of the power of direction. The four countries may be divided into two classes. 1. United States and England. — In the one class composed of the United States and England the origi- nal conception of the head of a department was that of an officer stationed at the centre of the government who might have, it is true, in many cases the powers of appointment and removal but who was not supposed to direct the actions of the subordinates of his depart- ment. This was particularly true of the branch of administration which has been designated the admin- istration of internal affairs, where it may be said that almost everything was attended to in the localities and subject to almost no central supervision. The need of central instruction and supervision was not felt for the reason that the statutes of the legis- lature descended into the most minute details as to the duties and powers of the officers. The conception indeed of a hierarchy of subordinate and superior offi- cers was very dim, if it existed at all. This is seen in our national administration in the position originally occupied by the collectors of the customs. Though nominally perhaps the subordinates of the secretary of the treasury, the law never recognized that they were subject to his instructions and directions, nor was it the practice to regulate the administrative details by means of central instructions.* No one, further, thought in our early history of appealing from the decision of a collector to the secretary of the treasury. In the com- monwealths the system was very much the same. ^ Cf. Report of the Secretary of the Treasury on the Collection of Duties^ 1885, P- xxxvii; see Eliot v. Swartout, 10 Peters, 37; Tracy v. Swartout, 10 Id., So. 152 CENTRAL ADMINISTRATION. Almost all the administrative matters affecting the commonwealth were attended to by oflScers in the localities who were really quite independent, after they had assumed office, of all central instruction, notwith- standing the fact that the most important of them were originally appointed by the central government of the commonwealth. It was not the habit of the central government to send to these officers in the localities instructions as to how they should act in the execution of the law whatever might have been the actual power of the heads of departments. In the commonwealths the system has remained almost unchanged so far as the officers attending to the affairs of the commonwealth in the localities are concerned. Indeed their independence of the heads of the departments of the central common- wealth government is even greater now than it origi- nally was, on account of the fact that they are for the most part elected by the people of the localities in which they act.^ In some cases the law does recognize a right in a head of a department in the commonwealth to send instructions to the officers in the localities as to how certain branches of administrative work shall be attended to.^ These cases are extremely rare. But certain matters which were either formerly not attended to at all by the commonwealth administration or which were attended to by the officers in the localities are now attended to directly by the heads of the commonwealth departments and their subordinates who are under cen- tral control. Such matters in New York are : prisons, pauper lunatics in most cases, factory inspection, edu- * Infra^ p. 178. * E. g.^ the comptroller in New York is authorized by statute to make regu- lations and issue directions in regard to the transmission to the treasury of public money. L., 1843,0.44. POWERS AND DUTIES. 153 cation, railway supervision, etc,, etc. As to these matters the heads of the commonwealth departments have a large power of direction sanctioned by the power of removal. What has been the exception in the com- monwealth administration has been the rule in the national administration. The century of national de- velopment has produced perhaps more change in this respect than in any other. The result of this develop- ment has been the recognition of an official hierarchy in the national administration with the power in the heads of the departments to reverse or modify, on appeal of persons interested, the decisions of the inferior officers and to direct them how to act.^ Here again the treasury department offers a good example. Now the collectors of the customs would hardly think of attempting to apply the law in a doubtful case with- out first receiving instructions from the secretary of the treasury ; '^ and the law makes an appeal from the collector of internal revenue to the treasury necessary before the aggrieved party has any standing in court. He must exhaust his administrative remedy before he may resort to his judicial remedy.^ The same thing is true in many cases in the department of the interior.* Finally it has been held that the head of a department may change the erroneous decision of a subordinate officer.5 * See, e. g.. United States Revised Statutes, sec. 251 ; Butterworth v. U. S., 112 U. S., 50. « Cf. U. S. R. S., sec. 2652. * U. S, R. S., sec. 3226 ; this was the case also in the customs administration until the passage of the late administrative bill, which has taken away the ad- ministrative remedy of appeal to the secretary and has provided an appeal to the appraisers. Cf. Goss, '* History of Tariff Administration in the United States," in Studies in History^ Economics, and Public Law, I., 155. * Jbid., sec. 2273. * U. S. v. Cobb, 11 Fed. Rep., 76. 154 CENTRAL ADMINISTRATION. In England the development that is to be noticed in this country has also taken place, but even to a greater extent. The reform of the system of local government since 1834^ has made the English admin- istrative system one of the most centralized in existence. The new department of the interior, i. e, the local government board, and also the treasury have the most extended right of direction and control over the numer- ous local boards which attend to aifairs in the locali- ties. This has not failed to have its influence on the other departments, and at the present time the best authority on English administrative law. Professor Gneist, lays it down as a rule ^ that the English heads of departments have a very wide power of issuing instruc- tions and directions to their subordinates throughout the land and thus of guiding the action of inferior administrative officers. 2. In Framce and Germany. — In France and Ger- many, contrary to the original rule in England and the United States, the officers of the central govern- ment have always had the right to issue instructions to their subordinates, among whom were many officers who in England and the United States would be con- sidered local officers, since the central government has had almost from the beginning many representatives in the localities, who were regarded as distinctively central officers.^ The long existence of such a system has naturally given to the instructions and directions of the heads of departments a much greater impor- tance than they have ever had in this country or in * Infray p. 236. ^ Das Englische Verwaltungsrecht^ I., 354 et seq. ^ Aucoc, op. cit., I., 89, 119 ; Stengel, Deutsches Verwaltungsrecht, 163, 164. POWERS AND DUTIES. 155 England. The laws have never gone into such detail as with us in regard to the duties of the officers, but have left these to be filled out by ordinance and in- structions/ Indeed it would be almost impossible to understand much of the administrative law without a reference to these ministerial circulars of instructions and directions. Germany and France have thus from the beginning possessed a most centralized system of administration. Now while the tendency in the United States and England has been towards administrative centralization, the tendency in France and Germany has been towards administrative decentralization. Within the last twenty years many matters which for- merly were regulated by the instructions of the heads of departments have been put into the hands of the officers of the localities to be attended to in their own discretion, subject, it is true, at times to the supervision of the heads of the departments.^ The heads of departments in the four countries have thus the power of direction. The only excep- tion is the case of the heads of departments in the commonwealths in the United States, who do not, as a general thing, have any power of directing their subordinates in the localities how they shall execute the laws. The heads of departments, like the chief executive authority, have a class of material as well as personal powers — that is, they have direct powers in connection with the administrative services attended to by the government. Among these may be mentioned : * Cf. Dicey, The Law of the Constitution, 3d. Ed., 50. ' Boeuf, op, cit., 118 ; De Grais, Handbuch der Verfassung und Verwaliung^ 1883, p. 54- 156 CENTRAL ADMINISTRATION. IV. — The ordinance power. In all countries the heads of departments have a delegated but only a delegated ordinance power. This is true even in the United States where very few matters comparatively are regulated by ordinance. In the national government in many cases, Congress has delegated to the heads of departments the power to regulate by general orders the details of the adminis- trative law; and when such a delegation has been made the regulations issued as a result of it have a force even upon individuals equal to that of statute.* Where such regulations are not clearly based on some legal provision giving the power to issue them the courts do not hesitate to declare them void when they come before them for enforcement.^ In the separate commonwealths of the United States the ordinance power of the heads of departments is not a large one because the legislature has not seen fit to grant to them this power. In foreign countries also the rule seems to be the same with perhaps the exception of England, where matters are often regulated by the head of a department which on the continent would be regulated by executive ordinance. But even in our national government the administrative regulations, which are issued by the heads of departments as a result of their possession of the delegated ordinance power, are regarded by the courts as the acts of the President, who is supposed to have acted through the heads of departments.^ These ordinances are to be * E. g. U. S. R. S., sec. 251 ; United States v. Barrows, I. Abbott, U. S., 351, Exparte Reed, 100 U. S., 13, 23 ; citing Gratiot v. U. S., 4 How., 80. 'Little V. Barreme, 2 Cranch, 170; Ex parte Field, 5 Blatchford, 63; Campbell V. U. S., 107 U. S., 407. ^ Willcox V. Jackson, 13 Peters, 498 ; supra, p. 73. PO WERS AND D UTIES. 1 5 7 distinguished from ministerial circulars or instructions, which, while general in character like the ordinances, are not like the ordinances binding upon the individual but only upon the officers subjected to the power of direction of the head of the department. Such instruc- tions are based on this power of direction.^ In Europe the distinction between these two kinds of acts is much clearer than in this country, but even in the United States the United States District Court has held that regulations of departments for the transaction of their business are subject, if they are unjust, to revision by the courts at the instance of individuals who, it would seem, are not in such a case bound by them.^ V. — Special acts of individual application. In addition to these general acts, the heads of departments must, in order to discharge the functions given to them, perform many special acts. They have to make most of the contracts which are made by the government ; they must issue orders affecting only one case; they must make decisions either of their own motion or on the appeal of inter- ested parties. The position of the heads of depart- ments is in this respect essentially the same in all countries. In both the continental countries it has for a long time been recognized that any individual who deems himself aggrieved by a decision of a subordinate officer may appeal to the head of the department to have the objectionable deci- sion reversed. This appeal is always allowed even * Boeuf, op. cii., 28. ' U. S. v., Cadwalader, Gilp., 563, 577. 158 CENTRAL ADMINISTRATION. where the law has not specifically authorized the taking of such an appeal.^ The reason of the existence of this right in the individual is to be found in the hierarchical character of the administrative system with the monarch originally at the head, to whom as fountain of justice the individual always had the right to present a petition for justice. In this country, also, although the administration was not hierarchically organized originally, it would seem that the head of a department possesses the power to hear appeals from subordinates' decisions. This power has been given by statute in numerous instances in the national administra- tion but not often in the commonwealth administration, and it is held that the power of direction and control gives the power to hear appeals and correct mistakes.^ VL — Remedies. In only one of the four countries is there recognized a direct remedy against the general acts of the heads of departments. That country is France where any one may appeal to the council of state to have an objection- able ordinance quashed on the ground that it has been issued by the head of a department in excess of his powers. In all the other countries, as well as in France also, the courts have the right collaterally to declare an ordinance void which has been issued in excess of powers.^ In almost all the countries, in fact all except * Boeuf, op. aV., 28 ; Loening, op. cit., 794. * Butterworth v. U. S., 112 U. S., 50, 57, which discusses the appellate power of the secretary of the interior in patent matters. Here, it is said, that '* the official duty of direction and supervision implies a correlative right of appeal , . . in every case of complaint although no such appeal is expressly given." See also Bell v. Hearne, 19 How., 252. ' For American cases see supra, p. 74. See also Stengel, Deutsches VernualU ungsrecht, 180 ; French Code Pinal, art. 471, sec. 15. PO WERS AND D UTIES. 159 Germany, there is a remedy against the special acts of the heads of departments. In England and the United States this remedy is to be found in an appeal in the proper form to the courts to overturn or modify the act complained of.^ In France the appeal goes to the council of state acting as an administrative court.^ VII. — Local subordinates of the executive departments. In all countries certain of the executive departments have scattered about the country in the districts, into which it has for this purpose been divided, subordinate officers who act under the direction and control of the heads of departments. Thus in the United States national administration the treasury department has its collectors, naval officers, surveyors, inspectors, measur- ers, weighers, and gangers in the customs and internal- revenue districts; the department of the interior, its land receivers and registers and Indian agents, etc.., etc. The national administration is highly centralized, rarely making use of the officers of the commonwealth or of the various local corporations within the common- wealths, such as the counties and the towns. While this is also true of certain branches of administration in the commonwealths of the United States^ and for- eign countries,* still in many cases the central govern- ment, if the government is a federal one as in Germany, makes use of commonwealth officers,^ or it imposes a series of duties upon officers who are at the same time ^ Infra, II., p. 209. 2/w/ra, II., pp. 229, 238. • As, e, g. , in New York, the factory inspectors of the labor commissioner, and the various agents of the department of public works. * For France see Aucoc, op. cii., I., 182. ' As, e. g., in the case of the customs and the internal indirect taxes. i6o CENTRAL ADMINISTRATION. officers of the local corporations or even upon such local corporations themselves. Thus in the commonwealths of the United States the commonwealth central govern- ment often uses county and town officers and the counties and towns themselves — these bodies are indeed primarily administrative districts for the purposes of the general commonwealth administration ^ — as its agents for a series of purposes. For example, in most of the commonwealths the counties and the towns attend to the financial administration of the commonwealth as a whole, defray most of the expenses of the judicial administration, take care of the poor, etc.^ etc., while the county authority is not uncommonly made the board of canvassers for general elections. The only great difference between the English and American system on the one hand and the continental system on the other, is that the control which the central executive departments have over such local corporations and their officers, both when acting as the agents of the central administration and when acting as the agents of the local corporations, is much less extensive in the former than in the latter. In the United States and England most of the local corporations elect their own officers, who, even when acting as they so often do as agents of the central administration, are quite independent of the heads of the central executive departments ^ ; while on the continent such officers are often appointed by the central government and act in all cases more or less under its control.^ Though not so centralized usually as the United States national administration, the con- tinental system is much more centralized than either the English or the United States commonwealth sys- ^ Infra, p. 173. ^ Infra, p. 228. ^ Infra, pp. 273, 315. PO WERS AND D UTIES. 1 6 1 tern. It must, however, be said tliat the tendency in England is to put the local corporations and their officers under a strict central control, especially when they are acting as the agents of the central government * ; while the latest steps taken in Germany tend greatly to relax the formerly strong central control. * Infra, p. 259. BOOK III. LOCAL ADMINISTKATIOK CHAPTER L HISTORY OF RURAL LOCAL ADMINISTRATION IN THE UNITED STATES. /. — History of rural local administration in England to the eighteenth century, 1. The sheriff. — The character of the English sys- tem of local government was fixed by the Norman kings. The absolutism of the Norman government reduced all classes of the inhabitants to complete sub- mission to the Crown.^ On account of the race conflict between Norman and Saxon, the Crown was obliged to establish some system of government by means of which the peace might be preserved and the King might act as the impartial arbiter between the conflicting race elements of the nation.^ The King therefore dis- tricted the kingdom, using in the main the old divi- sions, i, e., shires which had come down from Anglo- Saxon times, and placed in each district an officer on ^Stubbs, op. cit., I., 257, 259, note i ; 260, 338 ; cf. Goodnow, " Local Gov- ernment in England" in Pol. Sci. Qu., II., 638, * Gneist, Self government, Communalverfassung und Verwaliungsgerichte^ 14, 162 HISTORY OF LOCAL ADMINISTRATION. 163 whom he could rely to cany out his plans and enforce his orders. Such districts were not considered to be public corporations. They had no affairs of their own to attend to, but all administrative business was at- tended to by royal officers placed within them, to wit, the sheriffs or vice-comites} The sheriff was always an unpopular officer; he was therefore gradually stripped of his powers and a system of administration established which was more popular in character. But before this was done the strong centralized administra- tion of the Normans had consolidated the people of England into a nation. This was accomplished in England much sooner than on the continent. As a result of the centralization, autonomous communities had no opportunity to develop, and though the admin- istrative system later became really quite decentralized, the same general principles remained true, i, e., the localities remained simply administrative districts without juristic personality and with no affairs of their own to attend to, districts in which royal officer attended to all administrative business. The prefec- toral administration of the sheriffs lasted from the time of the conquest to about the reign of Richard II, when changes were made which reduced the sheriff to the position of a ministerial officer of the royal courts, which had sprung up in the, meantime, a returning officer for elections and a conservator of the peace.^ These changes are to be found in the establishment of the office of the justice of the peace,^ and the subse- quent enlargement of its powers. ^Stubbs, op. cit., I., 276; cf. Pol. Set. Qu., II., 639. '^ See Anson, op. Hi., II., 236. 334 Edward III, c. I. ; cf. Pol. Set. Qu., II., 644, and authorities cited. i64 LOCAL ADMLNISTRATLON. 2. The justice of the 'peace, — To the justices of the peace were given most of the powers of the sheriff. They further gained control of the parish administra- tion which sprang up in the times of the Tudors in connection with the church, and in their courts of quarter sessions acted as the county authority. They were finally by far the most important officers in the localities, discharging both administrative and judicial functions, and having under their direction almost all other officers in the localities. The system whose whole tone was given by the justices of the peace was much more decentralized than the prefectoral system of the sheriffs. All the officers were chosen in the localities in which they acted. Most of them, it is true, were appointed directly or indirectly by the cen- tral government, and could be removed by it. But the fact that they received no salary, although service as a rule was obligatory and arduous, and that they were chosen from the well-to-do classes made the per- sonnel of the service after all very independent, and kept it from falling into bureaucratic ways. For the threat of dismissal from office had little terror for a justice of the peace. Dismissal meant relief from arduous service and not the loss of a means of liveli- hood. The system thus really secured a high degree of local self-government. The independence of the justices brought it about that the control over their actions, which could be exercised by the central admin- istration, amounted to almost nothing finally. To pro- vide for some sort of central control the statutes of Parliament, regulating the powers and duties of the justices, had to descend into the most minute details. That the justices acted in accordance with these de- HISTORY OF LOCAL ADMINISTRATION, 165 tailed statutes was ensured by the control given to the royal courts over their action, by means of which the courts might, on the application of any person ag- grieved by the action of the justices, force them to act as the law required or else quash their illegal action.^ //. — The development of the system in the United States, 1. The three original forms of local ad/minisl/ration, — The justice of the peace system was in full force at the time of the colonization of North America. It is only natural that its main features should characterize the original system of American local administration. We find, however, three pretty distinct forms of it in the different colonies, one in the New England colonies, one in the middle colonies, and a third in the southern colonies. The main distinction between these three forms is to be found in the relative position which was assigned to the areas adopted for the purpose of ad- ministration. In New England while the county was recognized '^ it was not nearly so important as the town which was the other area. The town may be taken as the American type of the English parish but it cannot be regarded as the legal successor of the parish. It is really the creation of American statute law, and thus the principles of the common law applicable to the English parish may not be applied to the American town.^ The town resembles the Anglo-Saxon tunscipe, indeed more than the English parish. This resemblance 1 Pol. Sci. Qu., II., 648 ; infra, II., p. 200. 2 Howard in his Local Constitutional History of the United States, I., 320, says that the county was formed in Rhode Island in 1703, but was comparatively unimportant. In Massachusetts, however, it is found as early as 1635. See 9 Gray, 512 note. » Morey v. Town of Newfane, 8 Barb. N. Y., 645, 648. i66 ^ LOCAL ADMINISTRATION. to its old Teutonic prototype would seem to be due more to the fact that the American colonists had to face conditions similar to those before their German forefathers than to any conscious imitation on their part of Saxon institutions. In the middle colonies also we find both the town and the county. But the functions of administration were quite equally distributed between them or else the town was less important than the county. The latter was especially true of Pennsylvania, where the town was not established until the latter part of the eighteenth century and after its establishment was much less important than the New England town.^ In the south social conditions were such as to neces- sitate the existence of the county alone and to prevent the development during the colonial period of any lesser administrative area at all. 2. The early American county.— The county was found in all the American colonies with the exception perhaps of some of the New England colonies where, if it existed at all as an administrative district, it existed in a very rudimentary form. Wherever the county did exist as an administrative district the county authority was, as in England, the court of sessions of the justices of the peace who were appointed by the governor of the colony.^ By the side of the justices of the peace was the sheriff occupying a position similar to that of the English sheriff of the same period. That is, he was a conservator of the peace, the returning officer for elections, and the ministerial officer of the * Howard, <5>. cit, I., 385. * For New York see Documents Relating to the Colonial History of New Yorky IV., 25 ; cf. Howard, I., 406. HISTORY OF LOCAL ADMINISTRATION. 167 courts. He was appointed also by tlie governor.* In the court of sessions were centred about all the ad- ministrative duties relating to the county. In this court the justices appointed some person to be county treasurer, attended to the county finances and supervised the administration of the poor-law. Acting separately they had charge of police and highway matters and directed the actions of a great number of subordinates who had duties relative to these matters. The first change to be noticed in the county organiza- tion is the substitution of officers elected by the people of the county for these appointed justices. This be- gins in New York certainly as early as 1691, and probably as early as 1683.^ In 1691 an officer called a supervisor was to be elected in each town. His name comes from the fact that when these officers from each of the towns in the county were assembled to- gether they formed the county board, and were to ^* supervise and examine the publick and necessary charge of each county." ^ The motive for this change was probably to provide for the co-existence of local representation with local taxation, since the main duties of the first board of supervisors were relative to the * See Brodhead, History of New York, I., 63, and authorities cited. ' See Laws of 1691, c. vi. There is in the office of the secretary of state of New York a manuscript law of the date of November 2, 1683, which provides that there should be elected in each town persons " for the superviseing of the publique affaires and charge of each respective towne and county." But as the assembly in New York previous to 1691 was an almost extra legal-body, it is safer to set the introduction of the elective principle in the county organization at 1691. 2 This system was abolished ten years later by Laws, 1701, c. 96, but was re- introduced by Law of June 19, 1703. This accounts for the mistake which is so commonly made of assigning 1703 as the date^of the introduction of the super- visor system in New York. i68 LOCAL ADMINISTRATION. fiscal administration of the county/ The justices still retained important functions in other administrative branches, such as highways.^ A little later the elective system was introduced into Pennsylvania but in a somewhat different form, the towns not being repre- sented on the county board, probably on account of their unimportance. In 1724 provision was made for the election by the people of the county of three com- missioners who were to manage the fiscal affairs of the county.^ Sheriffs were also elected by the people in Pennsylvania from an early time.* This change in the county organization was destined to have a profound influence on the subsequent development of local ad- ministration in the United States. As Professor Howard well says * : "To New York first, and next to Pennsylvania belongs the honor of predetermining the character of local government in the west. But if New York was first to return to the ancient practice of township representation in the county court it was in Pennsylvania that the capabilities of the indepen- dent county were first tested. Here the principle of election to county offices was carried farther than it was ever carried in England." New York is the parent of the supervisor system. On the other hand Penn- * See New York Law of November i, 1722, where it says : " Whereas by that means," i. e. the method of voting provided by the act of 1703, "the inhabi- tants of several manors, Liberties and Precincts which bear a considerable share of the county rate have not the liberty of chusing their own Supervisors, be it enacted " that they may vote in the town adjoining the manor, etc, 2 Cf. Howard, I., 362. * Ibid., I., 382. * Ibid., I., 384, and authorities cited. ^Ibid., L, 387. * It is, however, to be noted that the New York law of 1683, above referred to, provided that the county treasurer should be elected by the voters of the county. HISTORY OF LOCAL ADMINISTRATION. 169 sylvania is the originator of the commissioner system." The elective system thus introduced into New York and Pennsylvania has been adopted in almost every commonwealth, and has been extended to almost all county offices at the present time, not only the original county offices but also those which the increase of the work of administration has caused to be provided. 3. The ea/rly American town, — While we find in the early American county an organization similar to that of the English county of the seventeenth and eigh- teenth centuries, in the early American town we do not find an organization which resembles veiy closely the English parish of the same period. The town is, as has been said, an American creation and its develop- ment has been quite different in different sections. In New England it is older than the county.* In the middle colonies it seems to be a later creation.^ The town originated either in legislation ^ or in an execu- tive act of the early colonial government/ while in some cases it seems to have originated in the settle- ment of lands bought for this purpose from the In- dians by companies of persons who then formed a sort of social compact for their government.^ Towns formed in this last manner seem at first to have had about all of the attributes of government, but were later ab- sorbed into the colonies and lost in this way all rights but the ordinary rights of self -ad ministration. * We find it in this section as early as 1630, 9 Gray, Mass., 511. ^ E. g., Pennsylvania, supra, p. 166. ' As, e. g., in New England, Howard, I,, 56. ^ E. g., in New York where the town of Hempstead, on Long Island, was created by a patent given by Director General Kieft in 1644, Brodhead op, dt», I., 388, and authorities cited, 6 Wood, History of Ijmg Island, 19 ei seq. I70 LOCAL ADMINISTRATION. From the very beginning the principle of election by the voters of the town seems to have been the method of filling all the town offices ; and in this prin- ciple is to be found the great point of difference be- tween American town organization and the English parish organization, and between the positions of the American and English justices of the peace. For in the English parish the justices of the peace appointed ultimately almost all of the parish officers and directed them how to act. The powers of the American jus- tices of the peace over the affairs of the towns were much less extensive. In the New England town the town officers were elected by the town meeting, i, e., the assembly of the political people of the town. The principal officers were the selectmen. They had a general supervision of town affairs, and were to exe- cute the resolutions of the town meeting which was the deliberative body in the town.^ In addition to the selectmen there was also an almost innumerable list of officers, each of whom attended to some particular matter affecting the welfare of the town. Some of these minor officers were elected at the town meeting, some were appointed by the selectmen.^ The existence of such a number of officers was necessaiy because salaries were not paid, and because service was, as a rule, obligatory ; for no man could be expected, with- out compensation, to give up a large share of his time to the performance of public duties. In New York the principal officers of the town after 1691 were the supervisor, two assessors, a constable, a collector, a clerk, highway commissioners or surveyors, and over- seers of the poor. They were for the most part 1 Howard, I., 78. 2 j^^^ gS, 96. HISTORY OF LOCAL ADMINISTRATION. 171 elected, as in Massachusetts, by the town meeting, which in New York had functions to discharge similar to those discharged by the Massachusetts town meet- ing with the difference that its sphere of action was not so extended. For the county did a great deal of the work in New York that was attended to by the town in New England/ In Pennsylvania we find in the town after its establishment, two overseers of the poor appointed by the justices and two supervisors of highways elected by the people of the town. As the county was much more important in Pennsylvania even than in New York there was very little for the town to do. It was more in the nature of an adminis- trative division of the county than a local organization with its own duties to perform. Therefore the town meeting was not present in the original Pennsylvania plan of local administration.^ ///. — Corporate capacity of the localities. hole W 1. Original absence of corporate capacity. — When the elective principle was made the rule for the filling of offices in the Iqcal administrative system the whqlg local organization became quite popular in chara and at the same time quite independent of the tral administration, since all possible administrative sanction for instructions issued to the officers in the localities from the central administrative authoriti^ was destroyed. But for a considerable time after this decentralizing of the administrative system the variWis areas for the purposes of administration, in which these independent officers acted, were, no more than the cor- * See N. Y. L., June 19, 1703. JBfc)ward, I., 385. # 172 LOCAL ADMLNLSTRATLON. responding English areas/ regarded as juristic persons.* They had no services of their own to attend to apart from the sphere set aside to them by the statutes of the central legislature, which regarded them as agents of the central administration of the commonwealth, nor could they even hold property or sue or be sued.^ One result of the non-corporate character of towns is to be found in the fact that by common law the property of an ■ inhabitant of a New England town may be taken upon execution on a judgment against the town/ The first step in New York towards recog- nizing that the areas of administration possessed any juristic personality was taken in the case of North Hempstead v, Hempstead,^ which held that a town had a certain corporate capacity though what that corporate^ capacity was, was not clearly defined. The undoubted corporate capacity of the old Dutch towns, due to the influence of the Roman law and the continental idea of the territorial distribution of administrative func- tions,^ seems to have influenced the court in its decision of this case J In 1801 the legislature expressly made the county a capable grantee of lands ^ and finally the » Russell V. The Men of Devon, 2 T. R., 672, A. D. 1788. ' Ward V. Co. of Hartford, 12 Conn., 406. ' See for New York, which may be taken as typical, the cases of Jackson v. Hartwell, 8 Johnson, 422 ; Jackson v. Cory, IHd., 385 ; Hornbeck v. West- brook, 9 Johnson, 73 ; and Jackson v. Schoonmaker, 2 Johnson, 230. * See Bloomfield v. Charter Oak Bank, 121 U. S., 121, 129 ; Hill v. Boston, 122 Mass., 344, 349. ^ 2 Wendell, N. Y. , 109. In Massachusetts, however, towns were authorized to grant lands in 1635, to sue and be sued in 1694 ; and were expressly incor- porated in 1785. See 9 Gray, Mass., 511, note, which gives a history of the legislation as to towns. * Supra, p. 44. ' See Denton v. Jackson, 2 Johnson, Ch. 320, 355. « I Kent & Radcliff's Laws, 561. HISTORY OF LOCAL ADMINISTRATION. 173 New York Revised Statutes of 1829 expressly de- clared each county and town to be a body corporate witli certain specified powers, to wit, the power to hold property and to sue and be sued.^ The principle established in Massachusetts and New York has been adopted in most of the other commonwealths of the United States so that it may be said that the American county and town are, where they have any administra- tive importance, at the present time bodies corporate with these specified powers.^ 2. Present corporate capacity, — But while the result of American development has been the recognition of the local areas as public corporations the further step has not been taken of recognizing that such corpora- tions possess any sphere of local action of their own. The duties attended to by them or by the officers act- ing within them are regarded as essentially matters of central concern, and the officers, though elected by the people of the localities, are not regarded as local officers in the sense that they are agents of the local corpora- tions. They are simply central officers who are, in accordance with the method adopted in the United States of filling these positions, elected by the people resident in the local areas. The position of the town is well stated in the case of Lorillard v, the Toivn of Monroe^ The several towns of the state, says Judge Denio, are cor- porations for special and very limited purposes, or to speak more ^ The chapter devoted to the towns is explained by the original reports of the revisers to the legislature in 1827 in which it is said that " this article is wholly new in its present form." ' Cf. Dillon, Municipal Corporations, 4th edition, I., chapter ii. ; Levy Court v. Coroner, 2 Wallace, 501, 507. 3 II N. ¥., 392, 393. 174 LOCAL ADMINISTRATION. accurately, they have a certain limited corporate capacity. They may purchase and hold lands within their own limits for the use of their inhabitants. They may as a corporation make such con- tracts and hold such personal property as may be necessary to the exercise of their corporate or administrative powers, and they may regulate and manage their corporate property and as a necessary incident sue and be sued where the assertion of their corporate rights or the enforcement of their corporate liabilities shall require such proceedings. In all other respects, for in- stance in everything which concerns the administration of civil or criminal justice, the preservation of the public health or morals, the conservation of highways, roads, and bridges, the relief of the poor, and the assessment and collection of taxes, the several towns are political divisions, organized for the convenient exer- cise of portions of the political power of the state ; and are no more corporations than the judicial or assembly districts. The functions and the duties of the several town officers respecting these subjects are not in any sense corporate functions or duties. The judge goes on to say it is convenient to have the officers chosen in the towns, but they are, when chosen, public and not corporate officers just as much as the highest official functionaries of the state ; they are not therefore in any legal sense the servants or agents of the towns.^ The position of the county, which is quite similar to that of the town is well stated in the case of Hamilton Go, v, Mighels.^ The court says here: A county is at most but a local organization which for pur- poses of civil administration is invested with a few functions charac- teristic of a corporate existence. ... A county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil adminis- tration, in matters of finance, of education, of provision for the ' See also Town of Gallatin v. Loucks, 21 Barbour, N. Y., 578 ; City of Rochester v. Town of Rush, 80 N. Y., 302 ; Sikes v. Hatfield, 13 Gray, Mass., 347 ; and particularly Hill v. Boston, 122 Mass., 344. * 7 Ohio St., 109, 115. HISTORY OF LOCAL ADMINISTRATION, 175 poor, of military organization, of the means of travel and trans- port, and especially for the general administration of justice. With scarcely an exception all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are in fact but a branch of the general administration of that policy. Again in Talbot Go, v. Queen Anne's Co,,^ the court says: A county is one of the public territorial divisions of the state created and organized for public political purposes connected with the administration of the state government, and especially charged with the superintendence and administration of the local affairs of the community." It will be seen what a slight recognition there has been, notwithstanding the corporate capacity of the local areas, of the possession by them of any sphere of action of their own as distinguished from their sphere of action as the mere agents of the commonwealth government. Their corporate capacity is made a mere incident to their public governmental capacity and is of value to them only in that through it it is possible for them to own lands and property. But even this property is subject to the regulation of the legislature, which may take it away from them and provide at any time that it may be made use of for some purpose other than that for which it was purchased.^ Outside of this problematical advantage of holding property which is really more the property of the commonwealth than of the local areas, their corporate capacity is as much a disadvantage as an advantage to them, since ^ 50 Md., 245, 259. * See also Scales, v. The Ordinary, 41 Ga., 225, 227, 229 ; cf. Dillon, Municipal Corporations^ 4th edition, I,, chap. ii. ^ See infra, p. 202. 176 LOCAL ADMINISTRATION. while they are able through it to bring suits they are also liable to be sued. This corporate capacity has in- deed been so narrowly construed by the courts that it gives the localities no other powers than those already mentioned of owning property, of suing, and of being sued. The courts have held that as a result of it they have no borrowing power ^ and practically that from it there can be derived no principle of respoTideat superior for the acts of the officers of these local areas. The last point was distinctly held in the cases of Loril- lard V, the Town of Monroe and Sikes v, Hatfield, to which reference has been made. It is true, however, that either general or special statutes have conferred upon the local areas the power to borrow money for a series of specified purposes, the most common of which are to erect county or town buildings, which serve at the same time as the offices of the administrative ser- vices of the commonwealth attended to in the county or town ; and to aid means of transportation, such as railroads which are being constructed and operated by private companies. But no general sphere of action in which the localities have any independent powers has been derived from the corporate capacity which they possess. Thus, notwithstanding the great decentralization of the administrative system which has resulted from the development of American local institutions, and not- withstanding the recognition of the juristic personality of the local areas, it cannot be said that the course of American local administrative history has given to the localities any sphere of independent local action. They are, as their English prototypes were after the Norman ^ Starin v. Town of Genoa, 23 N. Y., 441, 447. HISTORY OF LOCAL ADMINISTRATION. 177 conquest, simply agents of the central administration with, however, a corporate capacity which is to be made use of more for the benefit of the common- wealth as a whole than for the benefit of the particular areas themselves. CHAPTER TL EUEAL LOCAL ADMINISTRATION IN THE UNITED STATES AT THE PRESENT TIME. /. — The compromise system. 1. The county. — The three general types of the English local administrative system which were formed in America at the time of its settlement or which were developed soon after its settlement are still to be found. That developed in New York and Pennsylvania, which provided at a very early period for popular representa- tion in the county authority and which distributed administrative affairs somewhat equally among the two important areas, has had the greatest influence, is at the present time the most widely adopted, and seems destined to become the prevailing type of local admin- istration in the United States. One of the principles on which it was based has been all but universally adopted, i. e.y the election of the county authority by the people of the county, who are now defined in ac- cordance with the principles of universal manhood suffrage. This principle has in most cases been ex- tended, in accordance with the Pennsylvania idea, to other officers besides the county authority proper, so that now the usual rule is that all important officers in the county are elected by the people of the county. 178 RURAL LOCAL ADMINISTRATION. 179 For example, the sheriff, the county clerk, the county treasurer, the register or recorder of deeds, the district attorney, and the county superintendent of the poor, where that officer is to be found, are generally elected by the people, and not appointed by the central ad- ministration of the commonwealth or by the county authority, as was the case in the original English and American system. In many cases their election by the people is prescribed by the constitution of the com- monwealth.^ This system of local administration, in accordance with which administrative duties are about equally distributed among the counties and the towns, is called the compromise system, inasmuch as it adopts the ex- tremes of neither the New England nor the southern system. It is found in the middle commonwealths, and in those of the west and northwest. It has even invaded the domain of the southern system in that it has been partially adopted in Virginia, and the domain of the New England system in that it has been par- tially adopted in Massachusetts and Maine. The com- promise system itself, however, presents two quite distinct varieties, to wit, that of New York by which representation on the county authority is given to each of the towns of which the county is composed; and' that of Pennsylvania in which the county authority consists of three commissioners elected by the people of the county as a whole. The first is called the New York or supervisor plan, the second is called the Penn- sylvania or commissioner plan. The supervisor plan has the advantage of lessening the danger of local dis- crimination by the county authority, since each locality ' See Stimson, op. cit.. p. 47, sec. 210 B. 180 LOCAL ADMLNLSTRATION, is represented on the county authority ; the second or commissioner plan is to be preferred as ensuring a more energetic and efficient administration since there are not so many minds to be made up in the county authority. The supervisor form of the compromise system is to be found in New York, Michigan, Illinois, Wisconsin, Nebraska, and, to a certain extent, in Vir- ginia * ; the commissioner form of the compromise system is to be found in Pennsylvania, Ohio, Indiana, Iowa, Kansas, and Missouri, and, to a certain extent, in Maine, Massachusetts, Minnesota, and the Dakotas, and has very generally been adopted as the form for the county authority in the commonwealths of the south, where there are in the county generally no lesser dis- tricts to be represented."^ In the compromise system the county authority is then either a board of super- visors, one of whom is elected by the people of each town within the county ; or it consists of three com- missioners elected sometimes by the people of the county as a whole, sometimes it being necessary that each of the three commissioners shall be elected by one of three election districts into which the county is for this purpose divided. This authority has the general management of the administrative affairs attended to within the limits of the county. In case the commissioner system has been adopted somewhat wider powers appear as a rule to be granted to the county authority.^ The powers are, however, essen- tially the same whatever be the method of constituting the authority. They relate to the bridges and roads, the support of the poor and the care of the finances* ; ' Howard, I., 439, 453, 465. ' Howard, I., 442. « Ibid,, I., 439. ^ Cf. Howard, I., 446. RURAL LOCAL ADMINISTRATION. i8i and in many cases include powers which only very indirectly affect the affairs of the county, but are of most interest to the commonwealth as a whole. Thus the county authority has often to publish the laws and election notices for commonwealth elections, acts often as the county board of election canvassers, draws up in some cases the lists of grand jurors, and discharges duties mainly of a financial character in relation to the commonwealth military forces/ But the characteristic and most important powers of the county authority are those relating to the county finances. For the expenses of many matters affecting the commonwealth as a whole and not the county, are devolved by law upon the county. Such, for example, are many ex- penses connected with the administration of justice which, though the courts are recognized now as com- monwealth rather than local agencies, are generally borne by the counties. This is in accordance with the old English idea of devolving the expense of almost every administrative service upon the counties or the parishes. We do, however, find certain differences in the different commonwealths in the powers of the county authority relative to the officers acting within the county. While the usual rule would appear to be that the county authority may not be regarded as re- sponsible for the actions of the other officers in the county who are elected by the people of the county, and in some instances, as in New York, may be re- moved only by the governor and then only for miscon- duct in office ^ ; in one commonwealth at least the administration of affairs in the county is a good deal * See Morehouse's Supervisors' Manual, 115, 347, 352, 355, 363. ' Supra, p. 79. 1 82 LOCAL ADMINISTRATION. concentrated in tlie county authority which has quite a disciplinary power over the other officers in the county. This is Nebraska, where the county authority may hear complaints against any county officer and may remove him for official misdemeanors which are defined in the statutes and are, as in New York, simply misconduct in office. It may remove for this cause a county officer whether he has been elected by the people or ap- pointed by the county authority.^ If the county board refuses to move upon a complaint made to it on the behavior of a county officer it may be forced to take action by the courts.^ Again there is a difference in the relations of the county authority to the lesser areas of administration, viz.^ the towns. While the usual rule would seem to be that the county authority has no control over the administration of the towns, in some of the commonwealths which have adopted the New York form of administration the county author- ity has considerable supervisory power over the administration of the towns. Thus in this form the towns do not possess the taxing power, but all the town taxes are to be voted by the county authority.^ Up to 1892 the board of supervisors had in New York another power, which gave it considerable control over the town administration. This was the power to refuse its approval of the in- curring of certain expenses by the town, without which approval, such expense would not be a valid charge upon the town ; or to direct how town business shall * Compiled Statutes of Nebraska, 1889, p. 369 ; cf. Howard, I., 445. ' The State v. Saline Co., 18 Neb., 428. ^ E. g.. New York L. 1892. c. 686, sec. 12 ; L. 1892, c. 569 ; L. 1890, c, 568, sec. 139. RURAL LOCAL ADMINISTRATION, 183 be transacted.^ This power seems to have been taken away by the laws of 1892.^ 2. The town, — The town organization in the com- promise system varies considerably more in the differ- ent commonwealths than that of the county. In the New York form there is in the first place a town meet- ing,^ which is to decide most matters affecting the in- terests of the town, always in accordance with the statutes giving the town power and, where the county authority has power of supervision over the actions of the town, subject to the approval of the county au- thority. This town meeting does not however exist in the pure Pennsylvania form,'^ but does in a very rudi- mentary form in Minnesota and the Dakotas where it may enact by-laws and elect officers.^ In the pure Pennsylvania plan the functions of the town are dis- charged by a corps of officers elected by the people of the town.^ In the second place the principal town officers differ considerably. In some of the commonwealths, mostly those which have followed the New York form, an officer called by different names, but similar to the supervisor is elected by the town. He is the general executive of the town as a local corporation, has charge of its property, represents it over against third persons, and has a series of duties to perform in various admin- istrative branches, such as public education and public charity.' In some cases, however, such officer is not a member of the county board as in the pure New York ' Cf. Morehouse, op. cit., 303, 344, citing L. 1869, c. 855 ; L. 1886, c. 355. « N. Y. L. 1892, c. 686. Schedule of laws repealed. » See N. Y. L., 1892, c. 569, Article II. * Howard, I., 157. « Ibid., 157. ' Ibid., 158. ' For New York see L. 1892, c. 569, sec. 80. i84 LOCAL ADMLNLSTRATION. plan. This is the case with the town trustee who is elected by the people of the town in Indiana, Missouri, and Kansas, and with the town chairman who is elected in a similar way in Wisconsin.^ Generally the actions of such officer are controlled by a town board which in other cases is the only real authority.^ In some cases the supervisor or similar officer performs other duties, such as those of the assessor,^ or those of the overseer of the poor.* In Michigan he is also census enumerator and registrar of births and deaths.^ The town board to which reference has been made is vari- ously formed, but generally of the supervisor or similar officer and other minor town officers such as the town clerk, and the justices of the peace who thus still retain certain administrative functions, or the assessors.^ Be- sides controlling the action of the supervisor or similar officer, or itself conducting the affairs of the town, the town board has to audit all claims against the town and the accounts of town officers.^ In New York of late years the attempt has been made to form a sepa- rate board of town audit though the old method is still followed in a good many of the towns.^ In some cases this town board may levy taxes as in Michigan and Ohio.9 There are quite a number of other town officers * Howard, I., i68, and authorities cited. ' The town board is the real authority in Ohio, Pennsylvania, Iowa, Minne- sota, and the Dakotas. Ibid., 168-169. * As in Michigan, Ibid., 170. * As in Nebraska and Michigan, Ibid.^ 170 ; Cocker, Civil Government in Michigan^ 26. ^ Cocker, op. cit., 26. * Howard, I., 172. "^ Ibid., 172. ^ See New York Laws of 1840, c. 305 ; i860, c. 58 ; 1863, c. 172 ; 1866, c 832 ; 1875, c. 180, now incorporated in L. 1892, c. 569, sees. 172 et seq. ' Howard, I., 173. RURAL LOCAL ADMINISTRATION. 185 who attend each to some special brancli of administra- tion, such as the town clerk, collector, assessor, over- seer of the poor, highway commissioners, and overseers and constables, but these are for the most part officers of the central administration acting within the limits of the town, and cannot be regarded as agents of the town corporation, though they are generally elected by the people of the town.^ It should be noted that in the compromise system the town is not usually en- trusted with the care of the schools, which are attended to by separately organized school districts.^ Finally, in the compromise system the officers in the town are usually elected by the people of the town ; if there is a town meeting, then in the town meeting as in New York,^ if not, then at a ^town election, as in Pennsyl- vania.* ^ //. — The New England system. 1. The county, — The characteristic of the New Eng- land system of local administration is that the county is almost ignored. Almost all important local adminis- trative functions are centred in the town, even where the existence of the county as a district for certain purposes of administration is recognized. In Rhode Island the county is to be found, but only in an extremely rudi- mentary form. Here the county is simply a district for the purposes of judicial administration, but seems to have no juristic personality. Officers in the county, like the sheriff and the clerks of certain courts, are elected by the general assembly of the commonwealth.^ In Vermont also, all real local power is centred in the * Cf, Lorillard v. Town of Monroe, 11 N. Y., 392. ' Howard, I., 235; Cocker, op. cit., 92. * Supra, p. 171. * See statutes cited above. * Public Statutes, 39 and 74. i86 LOCAL ADMINISTRATION. town ; the only administrative business which is given to officers in the county consisting first, of the powers possessed by the sheriff as conservator of the peace and as ministerial officer of the courts and of the powers given to an elected county commissioner to supervise the execution of the laws prohibiting the sale of liquors, which are really enforced by the town agents * ; second, of the powers given to the assistant judges of the county courts to control the financial administration of the county, appoint the county treasurer, and hear appeals in highway matters ^ ; and third, of the powers given to a county equalizing convention, composed of dele- gates appointed by the town listers or assessors from among their own number, to make quadrennially an equalization of the assessments of the various towns for the purposes of taxation.^ In Vermont there is no county administrative authority like the board of super- visors or the county commissioners in the compromise system, but all matters affecting the county, not at- tended to by the special officers mentioned, especially those affecting the financial administration of the county, are attended to by the assistant judges of the county court. In Connecticut the general assembly of the com- monwealth appoints periodically three commissioners in each county, who have the care of the county property and the oversight of the county jail, supervise the county workhouses and levy taxes within certain limits for the repair of the court house and the jail. The fiscal administration of the county, so far as there is any, is attended to by a joint assembly of the senators and representatives for the county in the commonwealth * Revised Laws, 732, 733. ' Ibid,, 517, 573. ' Ibid,, 124, 125. RURAL LOCAL ADMINISTRATION. 187 legislature, who are to meet biennially at tlie capital of the commonwealth, make appropriations for county- expenditure, estimate and apportion the county taxes, and examine the accounts of the county officers. The county treasurer is appointed by the commissioners, the coroner by the supreme court, but the sheriffs are elected by the people of the county/ y In New Hampshire there are three commissioners elected by the people of the county, who have, how- ever, little independent power, and are subject to the control of a county convention composed of the repre- sentatives to the legislature of the towns of the county. This convention meets biennially, when it may levy taxes, may authorize the commissioners to issue bonds and to repair the county buildings, such authorization being necessary whenever the amount of the repairs exceeds $1,000. The commissioners are to attend to the care of the county paupers and county property, and may lay out highways and establish houses of cor- rection ; and, when authorized so to do, purchase and convey real estate. Besides the commissioners, the people of the county elect every two years a sheriff, treasurer, solicitor, a registrar of deeds, and a registrar of probate.^ It will be seen from this slight sketch of the county organization in the New England commonwealths that the New England county is in the process of becoming of some importance in administrative matters. It has already in several instances become a body corporate, but as yet it has not succeeded in obtaining a county ^ General Statutes 1888, 429-32, 434, 740, 748. ' General Laws 1878, 80-94. On the general subject of the county adminis- tration in New England see Howard, op. cit., I., 459, 464. i88 LOCAL ADMINISTRATION. authority of any great independence, which is separated from the other departments of the commonwealth gov- ernment. Thus in Connecticut and New Hampshire, it is under the control of the representatives of the towns in the county to the legislature, while in Ver- mont the most important administrative functions in the county are discharged by the assistant judges of the ordinary county court. In so far as a county authority has been developed, as e, g. the commissioners, who are found in Connecticut and New Hampshire, and it may be added in Massachusetts, where they have larger powers than in any other of the New England commonwealths, the Pennsylvania rather than the New York form is the model that is being copied. The rule as to the filling of the other offices in the county is not at all uniform, in some cases the people of the county electing such officers, in others some other authority having the right to appoint them. 2. The New England town.—^\i^i the New Eng- land county loses in importance the town gains. In the New England towns are centred most of the ad- ministrative functions discharged in the localities. In all the towns we find the town meeting similar to the New York town meeting, but generally possessed of greater powers. Thus the town meeting may not only pass by-laws but may also levy taxes, makes all neces- sary appropriations and decides all town matters, such as the making of contracts^; and its action is not sub- ject to the control of any county authority. The town officers are, however, differently organized in New England. The chief officers are still the selectmen.^ ^ See Bloomfield v. Charter Oak Bank, 121 U. S., 121 ; cf, for duties and powers of towns, Dillon, op. cit., I., 47, note. * Howard, oJ>. cii., I., 227. RURAL LOCAL ADMINISTRATION. 189 In Rhode Island, however, the town authority is to be found in a council of from three to seven members elected by the town meeting.' -^ This body resembles somewhat the town board, which is to be found in some of the western commonwealths, and by which, it will be remembered, most of the business of the town is to be discharged. Often in New England the select- men, who, like the town council of Rhode Island, are elected by the town meeting, have the right to appoint some of the other town officers, though the rule would seem to be that they also are elected by the town meeting. Everywhere the selectmen have the right to fill vacancies in town offices. The selectmen also dis- charge many functions which, in the New York form, are attended to by separate officers. Thus in Massa- chusetts the selectmen act as overseers of the poor while the constable very generally acts as collector of taxes.^ In New England generally the town is the school district, though there are separate officers to attend to the school administration.^ ///. — The southern system. The third type of local administration in the United States is to be found in the southern commonwealths. The main characteristics of this system is that nearly all administrative business, not absolutely municipal in character for which the municipal corporation has been formed, and not affecting education, for which the school district has been formed,* is centred in the * Ihid. ; see also Public Statutes 1882, pp. 109-119. * Howard, I., 227. ^ Ibid., 235. * As, e. g., in Virginia, Kentucky, Texas, and Tennessee. Howard, op, cit,^ I., 237. I90 LOCAL ADMINLSTRATION. county and its officers. In some of the common- wealths, however, even school matters are attended to by county officers/ In Alabama the district for the purpose of school administration is called the town- ship.'^ It is believed that the introduction of the school district is causing a disintegration of the county and the establishment of a smaller local area.^ The county authority in the south presents quite a variety in the forms of its organization. But it may safely be said that the tendency has been to adopt the principle of popular election for not only the county authority but for most of the officers in the county.* North Carolina and Tennessee seem to be the farthest behind in this respect. Here the justices of the peace appointed by the general assembly of the common- wealth have large administrative powers, and the sheriff, who is, it is true, elected by the people of the county, has still very many of the fiscal powers of the old Norman sheriff. Thus he is still the collector of taxes and may be the treasurer of the county.^ It may be further said of the southern system that the Pennsylvania or commissioner form is the one gener- ally adopted.^ That is, the county authority usually consists of three commissioners elected by the people of the county. There are, however, exceptions to this rule. Thus the New York form of the county au- thority has been adopted in Virginia. There we find a board of supervisors, each member of which is ^ E. g.. South and North Carolina and Georgia, Ibid. ' Ibid., citing Code of Alabama, 1886, I., 221, 222. ' Howard, I., 237. *Ibid.,^t^. ^Ibid., 469, 470, citing Code of North Carolina, 1883, pp. 287, 312. « Howard. I., 468. RURAL LOCAL ADMINISTRATION. 191 elected in one of the magisterial districts into whicli the county is divided. The attempt of northern men under the leadership of a New York man to introduce the New York town failed. The magisterial district established in 1874 has taken the place of the town which existed only for a few years. In this district a supervisor, constable, and overseer of the poor are elected by the people. There is, however, nothing like the town meeting.^ Further the board of super- visors is not as independent as in New York, appeals going in many cases from its decisions to the county court, not only in points of law, but also on points of fact and questions of expediency. Powers in highway matters also are about equally divided between the board of supervisors and the county court. Assess- ments for the purposes of taxation are made by an- other popular authority, viz,^ the commissioners of revenue, elected by popular vote.^ The matter of edu- cation is under the control of the central government of the commonwealth, and quite a number of officers in the local administrative system are appointed either by the central government of the commonwealth or by the county court. This latter body has quite a wide range of administrative powers, among which are the powers to revise assessments, to determine election contests, etc.^ etc., and finally the most extraordinary power of removing county officers.^ Another excep- tion to the rule that the county authority in the south is a board of three commissioners is to be found in Georgia, where the ordinary, an officer who corre- sponds to the surrogate of the middle states, or the * IHd., 231. * Ibid., 465-7, citing Code of Virginia, 1887. "Howard, I., 466, 467. 192 LOCAL ADMINISTRATION. probate judge of New England, and who is elected by the people of the county, is the most important county officer. In important matters he must act with the grand jury. The justices of the peace in Georgia also still have important duties to perform.^ In some of the southern commonwealths there is an area lower than the county which is sometimes called the town.^ But it is not generally a corporation but simply an administrative district of the county, in which there is no town meeting. In it are elected by the people certain officers like commissioners of high- ways and constables, though generally such officers are appointed for such district by the county authority. ' Const., art. v., sec. 5, p. 2 ; Code, 1882, part I., title vi., chap. ii. ; title v., chap. viii. * See supra^ p. 190, in relation to Alabama. CHAPTER III. MITNIOIPAL ORGANIZATION IN THE UNITED STATES. /. — History of the English municipality to the seventeenth and eighteenth centuries? 1. Origin of the borough, — According to the English method of permitting the localities to participate in the work of administration the more thickly populated dis- tricts have always had a somewhat peculiar organiza- tion. The origin of this peculiar organization is to be found in the grant to districts with a greater than average population of a series of privileges for the ex- ercise of which there was gradually formed a series of authorities differing in many respects from the authori- ties in the rural districts. These privileges were known as the firma hv/rgi and the court leet. The f/rma burgi was the lease of the town by the Crown to the inhabitants. From the very beginning of the Norman period the inhabitants of the towns, as well as of the rural districts, owed certain payments or services to the Crown. As a rule these payments were to be collected by the sheriff, as the fiscal representative of the Crown in the localities. In order to permit of the more easy collection of such payments, the Crown made contracts with the inhabitants of the town, in accordance with which they paid it a fixed sum, which they were permitted to raise among themselves * See Gneist, Self government ^ etc.^ 580-592. »3 193 194 LOCAL ADMINISTRATION. in such manner as they saw fit. For the collection of this town quota there was provided an officer called the fermor or provost or mayor, who was to be selected as a rule by the inhabitants of the town, their selection being subject to the approval of the Norman exchequer, and who was to act under its supervision. The court leet was a privilege granted to the inhabi- tants of special districts or to the lord of a given manor to hold a special police and Judicial court when the inhabitants of the district were exempted from the jurisdiction of the ordinary court, to wit, the sheriff's tourn. This privilege was granted by the Crown gen> erally, in the case of the towns, in return for a sum of money. Like the jh^ma hurgi, it soon came to be regarded as a right. The union of these two privileges constituted a municipal borough. The townsmen, meeting in court leet, found it a natural and easy mat- ter to assume such other functions as were necessitated by the presence of a large number of persons in a small district. They established rules as to participation in the court leet and as to the election of the mayor or provost. The general rule was that no one should par- ticipate in the court leet who did not pay taxes, was not a householder, and was not in the eyes of the law capable of participating in the administration of jus- tice. In the quaint language of the period, only those could be members of the court leet who were freemen householders, paying scot and bearing lot; and the formal criterion of the existence of these qualities in a given person was the fact that he had been sworn and enrolled in the court leet. This body had thus the ultimate decision as to the qualifications of municipal citizenship. MUNICIPA^'rTR'GANIZATION. 195 2. Development of the municipal council. — This origi- nally simple and equitable organization was later com- pletely changed through the acquisition by a large number of the boroughs of the right of representation in Parliament, which was formed in the time of Edward I (1295). The amount of the quota of the town was after the formation of Parliament fixed by that body, so that all that remained to be done by the town in the financial administration was to assess the quota assigned to it by Parliament. This business could be transacted better by a small committee of the towns- men than by the entire court leet or municipal assem- bly. At the same time that this influence was at work the whole judicial system was being completely changed by the introduction of judges learned in the law, by the formation of royal courts, and by the establishment of the office of justice of the peace, which was introduced into the urban as well as the rural districts. Through the formation of these authorities the court leet lost almost all its judicial functions, and was reduced to the position of a jury for the determination of the questions of fact rather than of law. This business could also be more easily attended to by a committee than by the entire court leet. The result was the formation of a committee of the original court leet or assembly of the municipal citizens for the transaction of both financial and judicial business. This committee gradually as- sumed the performance of all municipal business which had sprung up, such as the management of the prop- erty of the municipality, and finally was composed of the larger tax-payers — the most important men of the town, who often at the same time were granted by the Crown a commission of the peace, as a result of which 196 LOCAL ADMINISTRATLON. they became justices of the peace with the usual powers. In the larger boroughs they had not only the commission of the peace but also the right to hold a court of quarter sessions for the city with the usual powers. The larger tax-payers got these extensive powers simply as a result of the fact that the smaller tax-payers did not avail themselves of their privileges. The old basis of municipal rights, i, e,, the paying scot and bearing lot was undermined, and was replaced by different principles, varying in accordance with the social and economical conditions of the various boroughs. In those boroughs or cities which, like London, had great commercial and manufacturing interests membership in one of the guilds or mercantile companies became the basis of the right to discharge municipal functions. Thus was formed the town council or leet jury or capital burgesses, as the new municipal authority com- posed of the important men of the town was called, which, whatever the name that was given to it, was generally renewed by co-optation. The result was that in the fifteenth century in the towns as well as in the open country the government was administered by the gentry, the gentry in the towns being composed of the persons who had become rich in commerce and trade. 3. Period of incorporation. — Soon after this definite form of municipal organization was reached, in accord- ance with which the town was controlled by a council of rich men chosen by co-optation, the period of munici- pal charters begins and the charters incorporated not the inhabitants of the town, but the council which controlled the affairs of the town. The only purpose of these charters was to give to these districts the right to hold property and to sue and be sued. They had MUNICIPAL ORGANIZATION. 197 no special political significance, they did not grant any new governmental powers to the town authorities. The desire of the Crown to control, through the repre- sentation in Parliament granted to the municipal boroughs, the composition of Parliament led the Crown to make most improvident grants of municipal charters carrying with them parliamentary repre- sentation, with the result that the municipal population had for a long time more than its fair share of repre- sentation in Parliament. As the grant of such charters would not have served the purpose of the king if he were not able to control the municipal elections, the king strove so far as he could to put all municipal powers into a few hands. The courts, therefore, which were dependent upon the Crown, held that any custom which provided for the control of the municipal ad- ministration by the narrow town council was in accordance vnth public policy and valid.^ Further, in the early part of the reigns of the Stuarts the quo warranto was issued in many cases (81) to muni- cipal corporations in order to forfeit their charters for irregularities and illegal actions, and on the ad- verse decision of the courts, new and less liberal charters were granted. Many corporations, alarmed at the action of the Crown and the courts, surren- dered their charters and received new charters of a much less liberal character. All this was done to enable the Crown to control the action of the boroughs in their election of members of Parliament.'* The re- sult was that the municipal organization was so formed * See the case of corporations decided in the time of Elizabeth, Dillon, op, cit,^ I., 18 ; and Ireland v. Free Borough, 12, Co., 120. * See Dillon, op. cii., I., 18 ; Allinson and Penrose, Philadelphia^ 10 ; Rex V. London, 8 How. St. Tr., 1039, 1340. 198 LOCAL ADMINISTRATION. and its powers so prostituted as almost entirely to destroy its usefulness for administrative purposes. When, after the revolution of 1688, the nobles and gentry got the control of the government the case was the same, the only difference being that the nobles in- stead of the Crown made use of the municipal organi- zation in order to control the composition of Parliament. Not only was the condition of the municipalities an extremely bad one, but all hopes of reform were vain so long as either the Crown or the nobles controlled the government. For the composition of Parliament was too valuable a power to be given up voluntarily by its holders. So long as the municipal organization was so de- fective, it was useless to expect that the new functions of municipal administration, the adoption of which was necessitated by the increase of population in the cities, would be put into the hands of notoriously corrupt and unrepresentative municipal authorities. When the parish administration grew up in the time of the Tudors it was therefore extended into the cities as well as into the rural districts. In this way the poor-law was administered not by the borough council but by the parish authorities which acted under the continual supervision of the justices of the peace. As it became necessary to make some provision for the lighting and paving of the streets, the course adopted for the satisfaction of these needs was the same. Either these matters were entrusted to the parishes or special trusts or commissions were formed for their care by local and special legislation in particular cities, and the in- habitants were forced to contribute to the expenses of these branches.^ ^ Gneist, Self government , etc., 595. MUNICIPAL ORGANIZATION. 199 Such was tlie condition of the English municipality at the time that America was colonized. The strictly municipal affairs, which were mainly such matters as the care of the city property, the issue of local police ordinances and a certain power in the administration of justice,* were attended to by the municipal council or by its members in their capacity as justices of the peace ; and this council was chosen generally by co- optation. This body did not attend to all matters affecting the welfare of the city since many of these were entrusted to the parishes and other special authorities and had almost no functions to discharge which related to the general administration of the country. The form of the municipal council was the same as it had been during the middle ages. It was composed generally of the mayor, recorder, aldermen, and councilmen. //. — History of the American municipality, 1. The original American municipality. — Just as the English system of rural local government was made the model on which the original system of American rural local administration was formed, so the form of the municipal administration, as it existed in England in the seventeenth century, was made the model of the original system of American municipal administration. In the first place a special organization was pro- vided from the beginning for most of the cities in the colonies. Only one city, to wit, Boston, was ever governed in the same way as the rural towns.^ New York and Philadelphia have, from the beginning ^ On account of the fact that in most cases a special commission of the peace was issued to the cities. * Johns Hopkins University Studies in Historical and Political Science, V., 79. ^oo LOCAL ADMLNLSTRATION. of their history as English possessions, had charters or forms of organization which differed considerably from the organization of the surrounding rural districts. The original form granted by these charters also re- sembled very closely the English municipal organization of the same period/ The city authority was the town council, composed of the mayor, recorder, aldermen, and assistants or councilmen. In this body was centred the entire municipal business. The ad- ministrative powers were not, however, so large as they are now. Like the English municipal cor- poration, the original American municipal corporation was mainly an organization for the satisfaction of purely local needs, ^. e. for the management of the local property and finances and the issue of local police ordinances. Certain of the officers of the corporation, however, discharged a series of judicial and police functions as was the case in the English municipality. Thus in both New York and Phila- delphia, the mayor, recorder, and aldermen were the municipal justices of the peace and judges.^ The af- fairs of the general administration of the colony were attended to in the municipality by officers similar to the regular officers in the counties and rural districts.^ * For New York, see the Dongati Charter of 1686 and the Montgomerie Charter of 1730, to be found in Kent's Commentary on the City Charter and Ash, Consolidated Act ; for Philadelphia, see Penn's Charter, J. H. U. S., V., 15. ' For New York, Charter of 1730, sees. 23, 26, 27, and 31. All the present local courts in New York City with the exception, of course, of the supreme court, are simply outgrowths of the original judicial powers of the mayor, recorder, and aldermen. The recorder has also become an almost exclusively judicial officer. For Philadelphia, J. H. U. S., V., 19 and 29. ^ E, g.^ for the administration of the poor-law there were the regular overseers of the poor elected in the wards of the city and the expenses of this branch of administration were defrayed by the church parishes. See Black, " The History of the Municipal Ownership of Land on Manhattan Island," in Studies in History^ etc., edited by the University Faculty of Political Science of Columbia College, MUNICIPAL ORGANIZATION. 201 One of the results of this purely local character of the American municipality was that the town council had no power to tax in order to provide for the expenses of the local services. It was not regarded as a sufficiently governmental authority to be endowed with this attiibute of sovereignty.* A New York law of 1787 (chapter 62) provided that the mayor, recorder, and aldermen, as the board of supervisors of the county of New York, were to levy the taxes demanded by the central government of the commonwealth of the in- habitants of the city as inhabitants of the common- wealth, the principle of the firma hurgi having long ago been forgotten. The city council in New York, with the exception of the mayor and recorder, who were appointed by the governor and council, were by the charter to be elected by the freemen of the city, being inhabitants and the freeholders of each of the wards into which the city for the purposes of adminis- tration was divided. The freedom of the city was given by the mayor and four or more aldermen in common council, generally in return for the payment of money ; and, besides giving in the proper cases the right to vote, was the only authorization to pursue certain trades within the confines of the city.^ In Philadelphia the council was, as was so common in England at the time, elected by co-optation.^ Finally the city corporation was, as in England, regarded as consisting of the city officers, i, e, the council, or the council and the freemen.* * I., 182 ; also J. H. U. S., V., 27. For the collection of the central colonial tax the New York Charter provided for the election of assessors similar to the town assessors. See Charter of 1730, sec. 3. 1 See Black, op. cit., i8i ; J. H. U. S., V., 22. ' See Kent's Charter, note 35. ^ See Allinson and Penrose, op, cii.^ 9. * So in Philadelphia. See Allinson and Penrose, loc. cit. 202 LOCAL ADMINLSTRATION. Sucli was the original position and organiza- tion of the American municipality. Since the be- ginning of its history the American municipality has developed in two directions. In the first place the position of the municipality and the, duties to be attended to by its officers have greatly changed. 2. Change in the positioii of the municipality, — The legislature of the commonwealth has, to a large extent, lost sight of the original purpose of the municipality and has come to regard it as an organ of the central government for the purposes of the general common- wealth administration, making little distinction between central and municipal matters, and exercising over it much the same control which it exercises over counties and towns. Some of the cases in the courts claim for the legislature practically the same powers over the city and its property as the legislature possesses over the counties and towns which, as has been shown, are regarded as mere administrative districts for the pur- poses of general commonwealth administration.* Prac- tically the only point where it is generally recognized that the legislative control over municipalities is not so great as over the quasi municipal corporations, such as counties and towns, is in the case of the private property of the municipality, of which, it has sometimes been held, the legislature may not deprive the municipality as it may deprive it of its public property.^ One result of the more public character which is assigned to the municipalities by the American law and develop- ment is that the corporation is no longer regarded as » See Darlington v. New York, 31 N. Y., 164 ; U. S. v. B. & O. R. R. Co, 17 Wallace, 322. ' Dillon, op. cit., I., 110 et seq., and cases cited MUNICIPAL ORGANIZATION. 203 consisting of the officers, but consists of all the people residing within the municipal district, while municipal suffrage is in most cases the same as commonwealth suffrage.* Further, the commonwealth makes use very frequently of the municipality or its officers as agents for the purposes of commonwealth administration. Thus in financial matters, the city, when of large size, is often made the agent of the commonwealth admin- istration for the assessment and collection of taxes ; indeed the city itself is often practically the tax-payer of certain of the commonwealth taxes, e, g., the general property tax,^ which it is then to collect of the owners of property. Further in many, cases, where the city has not been made directly the agent of the central commonwealth administration, in that it itself through its officers is to attend to certain matters of general interest, the expense of a long series of matters is often devolved upon the city. This is particularly true of the matter of education.' The board of education, which has control of the educational ad- ministration within the limits of the city, and which is usually regarded as a separate qiiasi municipal cor- poration, is usually elected by the people residing within the district. In some cases, however, this body is appointed by the municipal authorities, as e.g, in New York and Brooklyn ^ ; in others it is appointed by the legislature, as in Baltimore.^ Finally municipal officers are often made use of for the purposes of general com- ^ Ibid., 70. * It is to be noted, however, that the city has very generally been granted the local taxing power. Ibid. , 69. It is no longer compelled to defray its municipal expenses from the revenue of its property. ' Cf. Bryce, American Commonwealth, I., 599. * N. Y. L. 1882, c. 410, sec. 1022; N. Y. L. 1888, ch. 5, title xvii., sec. i. * Bryce, op. cit., I., 596, 599. 204 LOCAL ADMINISTRATION. monwealth administration. Thus in most of the large cities municipal officers, either elected by the people of the city or appointed by the municipal authorities, are entrusted with the care of the public health and the support of the poor, attend to election matters, and have a series of duties to perform relative to the administra- tion of judicial affairs, such as the making up of the jury lists. In certain cases duties, which were in old times en- trusted to the municipalities or their officers, have been assumed by the central commonwealth administration. Thus the preservation of the peace has in several of the large cities been put into the hands of a commission appointed by the central government of the common- wealth.^ Further the courts of several of the common- wealths have held that the preservation of the peace is not a municipal function.^ What is true in exceptional cases of the preservation of the peace is almost universally true of the adminis- tration of justice, which is no longer regarded as a matter of local concern, but as a matter which should be attended to in accordance with a uniform system throughout the commonwealth. The courts which act at the present time in the various municipalities are not municipal but commonwealth courts. Their ex- penses may, it is true, be paid in large part by the * This is so in Boston, where the care of the police is given to a board of police, appointed by the governor and council of the commonwealth. Mass. L. of 1885, c. 323. In Nebraska the boards of police and fire commissioners in cities of over 80,000 inhabitants are appointed by the governor. Compiled Statutes 1889, pp. 147,148. See for St. Louis, J. H. U. S., VII., 186. In Bal- timore the board of police is appointed by the legislature of the commonwealth. See Allinson and Penrose, Philadelphia, $2g. ' People V. Draper, 15 N. Y., 532 ; Baltimore v. Board of Police, 15. Md., 376. ; People v. Mahaney, 13 Mich., 481. ; cf. Dillon, op. cii., I., 102. MUNICIPAL ORGANIZATION. 205 municipalities in which they act, but the judges and their subordinate officers are not regarded as municipal officers/ An exception to this rule may be found in the case of the local tribunals called by different namQs, such as the mayor's court, the recorder's court, and the like.^ These may be regarded as municipal courts when the judges who form them are elected by munici- pal electors or appointed by the municipal authorities, and when they have jurisdiction over municipal ordin- ances only. In some cities the aldermen still discharge judicial functions. Further, the cities themselves have largely lost the power of regulating their own purely municipal affairs. For the central government of the commonwealth has decided, in many instances, to exercise its undoubted legal right to regulate even purely local affairs. Further, while at one time city charters were seldom changed or amended by the legislature without the consent of the city authorities or that of the people within the city, at the present time changes are made therein continually without even asking the opinion of the city. Many bills affecting the welfare of the cities are rushed through the legislature on the sugges- tion of the local member, who does not in all cases represent the desires or the true interests of the city. The American idea at the present time seems to be that the city does not any more than the county have the right to regulate its own local affairs; that the ' Dillon, op. cit., I., 99, and cases cited. The action of the Civil-Service Commission in New York in classifying the officers in the courts as common- wealth rather than municipal officers shows what is the general opinion as to the character of the function of administering justice. — Sixth Report of the New York Civil- Service Commission, 448. ^Dillon, op. di., I., 492. 2o6 LOCAL ADMLNISTRATLOJS/ . municipal authorities are largely the agents of the central commonwealth government, indeed that the city itself is simply an administrative district possess- ing, it is true, corporate powers, but possessing no sphere of action of its own in which it should decide for itself what it shall do and what it shall not do.^ Few are the constitutional provisions which pro- tect a city against the interference of the common- wealth legislature ; and the legislatures of some of the commonwealths are too prone to take advantage of the unprotected position of the municipalities to interfere in matters which might be much better regulated by the municipalities themselves. The true sphere of the municipality as an organ for the satisfaction of local needs in accordance with the wishes of the inhabitants ^ is being in many cases overlooked, and the city is coming to be regarded, very much as the county, as simply an agency of the central commonwealth govern- ment. 3. Change in the organization of the municipality, — In the second place the old plan of consolidating all the administrative functions of the city corporation in the town council has been abandoned. There has very generally been made a clear distinction between the function of deliberation and the function of execu- tion, the former being possessed by the council from ^ See the case of U. S. v. The Baltimore and Ohio R.R. Co., 17 Wallace, 322, where the court says : ' * A municipal corporation . . . is a representative not only of the state, but is a portion of its governmental power. It is one of its creatures made for a specific purpose, to exercise within a limited sphere the powers of the state. The state may govern . . . the local territory as it governs the state at large. It may enlarge or contract its powers or destroy its exists ence." * Dillon, op. cit., I., 38. MUNICIPAL ORGANIZATION. 207 which the mayor has been excluded, the latter being granted to the mayor and the various executive depart- ments which have in the course of time been estab- lished.* This separation of the function of deliberation from that of execution was made in Philadelphia in 1789 "^ and in New York in 1830.^ The first charter of Boston, granted in 1822, however, permitted the mayor to be a member of the council/ Since 1830 most city charters have provided for this separation of the deliberative and executive functions.^ ///. — The present organization of the American municipality, 1. The mayor and the executive d&pa/rtments. — When the mayor was first excluded from the council he was to be elected by the council.^ In Philadelphia the mayor was elected by the council as late as 1839,^ but in Boston by the very first charter the mayor was elected by the people of the city.^ This seems to be the rule at the present time.^ His term of office ^ The recorder, it is to be noted, has become an almost exclusively judicial officer, though in some cases his functions show traces of his original position as a member of the council \ e. g.y in the city of New York at the present time the recorder is a member of the sinking-fund commission, the reason being that he was a member of that commission before his position as a judicial officer had been determined. See Consolidation Act of 1882, c. 410, sec. 170. «J. H. U. S.,V., 34. ' L. 1830, c. 122, sec. 15. *J. H. U. S., v., 96. ^ See outline of the ordinary municipal charter in the United States given in Dillon, op. cit., I., 68. In Chicago and San Francisco, however, the mayor at the present time sits in the council. Bryce, American Commonwealth^ I., 595, note 5 ; Dillon says, op. cit., I., 291, that "the mayor is frequently declared to be a member of the council." ^ E. g., see N. Y. Const, of 1821, art. 4, sec. 10. 'J. H. U.S., v., 34. 8 Ibid., 96. ' In New York this was provided in 1834 ; L. 1834, c. 23 ; in Philadelphia in 1839, J- H. U. S., v., 35 ; cf. Dillon, op. cii., I., 69 ; Bryce, op. cii., I., 594. 2o8 LOCAL ADMLNISTRATION. varies from one year in Boston to four years in Phila- delphia/ The ordinary charter provides that the mayor shall be the chief executive of the city. But this really means nothing more than the same phrase v^ith refer- ence to the President or the governor. That is, few if any powers are to be assumed as existing in the mayor as the result of the existence of such a provision in the charter. The only power which can be derived from it is that the mayor is to execute the laws within the city, which in its turn really means little more than that he is to " provide for the public peace, quell riots, and if necessary call out the militia," ^ though this duty is primarily that of the sheriff as the chief conservator of the peace of the county. While originally, and even after the grant to the mayor of the executive functions in the city govern- ment, the mayor had little power of appointing the various city officers, the whole tendency of American municipal development has been to increase this power of appointment. Originally there were no city ex- ecutive departments such as are now to be found in such numbers in all large American cities, but the ad- ministrative matters of the cities were attended to in their details by committees of the council, which it- self had the appointment of most of the subordinate officers, and could arrange and distribute the municipal business as it saw fit. Later the council formed, often by ordinance, separate executive departments. Thus, in New York, the charter of 1830 provided that the executive business should be attended to by depart- * J. H. U. S., v., 117 ; Pa. Law, June ist, 1885, art. i, sec. i. 'Bryce, op. cit., I., 595. MUNICIPAL ORGANIZATION, 209 ments which were to be organized, and whose heads were to be appointed by the common council/ The same power was possessed by the council of Phila- delphia, and that of Boston.^ But soon after the council lost the power of electing the mayor, it lost also in many cases the power of organizing the city executive departments and of designating their heads.^ Where the organizing power has been lost, it has been lost through the fact that many departments have been organized by statutes of the legislature. For the general rule of law is that what has been fixed by statute cannot be changed by ordinance.-* In certain cases it would seem that the council still possesses the organizing power.s The taking away from the council of the power of designating the heads of the executive departments seems to have been a result of the movement which resulted so generally in the elec- tion of the mayor by the people of the city and of the heads of the commonwealth executive departments by the people of the commonwealth. This spirit of democratic government which was so strong at the middle of the century resulted also in the election of most of the heads of executive departments in the ^ See also the Corporation Ordinances, revised 1845. 2 J. H. U.S., v., 36 and 97. ' See, e. g., N. Y. L., 1849, c. 187, sec. 20. * Cf. Kearney v. Andrews, 2 Stockton, N. J., 70; White v. Tallman, 2 Dutch, N. J. 67. ^ Thus in Boston, to a certain extent, J. H. U. S., V., 116 et seq.; St. Louis, Ibid., 154 ; New Orleans, Ibid., VII., 173. In New York the board of alderntien have still the power to make by ordinance, regulations other than those specially authorized by law "for fuller organization, perfecting, and carrying out the powers and duties prescribed to any department." Consoli- dated Act of 1882, c. 410, sec. 85. By common law finally the council has the right to create offices as incidental to its express powers. See Dillon, op. cit., I., 290, and cases cited. 2IO LOCAL ADMINISTRATION. municipalities by the people of the municipality. This was the case in New York in 1846, and for quite a time thereafter, and is to a certain extent the case at the present time in the cities of Boston,^ of St. Louis,^ and of Nfew Orleans.^ Lately, however, there has been a reaction against this tendency. It has been believed of late that the mayor's powers should be increased,, and that he should be in reality as well as in name the chief executive officer in the city government, and should have a large power of determining who shall be his subordinates. Therefore almost all the later charters have granted to the mayor a very large power of appointment. The only general exception to this rule that the heads of departments are appointed by the mayor is to be found in the case of the officer who has charge of the municipal finances, who is almost universally elected even now by the people of the city. This officer is called the comptroller or treasurer.* A further exception to the rule that the mayor appoints the heads of departments is often to be found in the case of the head of the department of public works, and in some instances in the case of the heads of other departments.^ But though the tendency of the later charters is, as said, towards increasing the power of appointment of the mayor, still there are many city 'J. H. U. S., v., wtetseq, ' Ibid., io6, 171. ^ Ibid.,WU.,iTi. * For New York see L. 1884, c. 73 ; Philadelphia and St. Louis, J. H. U., S., v., 68, 171 ; New Orleans, Ibid., VII., 173 ; Brooklyn and Chicago,. Allinson and Penrose, Philadelphia, 298, 331. This is not, however, the case in Boston and Baltimore, where the mayor appoints the treasurer or comptroller. Ibid., 329 ; J. H. U. S., v., 114, 123. ^ This is especially true of Boston, St. Louis, and New Orleans, J. H. U. S.,. v., 118 et seq. ; 170 ei seq. ; VII., 173. MUNICIPAL ORGANIZATION. 211 charters which provide for the election by the people of the city of the heads of the executive departments. Where the mayor possesses the povrer of appointing the heads of executive departments, the general rule is that his appointments, to be valid, i^^^rec^ive the approval of the whole city council or^R 01 its branches. Here, however, again the tendency of the later charters is to throw the entire responsibility for filling the office of head of executive department upon the mayor, who is not obliged to get his appointment confirmed by the city council. This is true in New York, Brooklyn, and Philadelphia.* This increase in the power of appointment of the mayor has in some cases been accompanied by the grant to him of the power of removal. Of the larger cities Philadelphia and Boston give to the mayor absolute power of removing officers whom he appoints ^ ; but in most of the cities the removal of an officer is conditioned upon obtaining the consent of the common council or a branch thereof.^ A peculiar rule has been adopted in New York and Brooklyn. In New York the mayor may remove the heads of the executive departments, but only for cause, and subject to the confirmation of the governor of the commonwealth.* In Brooklyn the heads of departments are removed for cause by the courts on the application of the mayor.s It should be noticed, however, that in many cases ^ N. Y. L. 1884, c. 43 ; N. Y. L. 1888, c. 583 ; Allinson and Penrose, op. ciU, 298, 329, 331. For Boston and St. Louis which require the confirmation of the council or a branch thereof, see J. H. U. S., V., 120 et seq. « Pa. Law, June i, 1885, art. i, sec. i ; J. H. U. S., V., 117. ' St. Louis, where the same rule applies to the elected officers also, J. H. U. S., v., 156 ; Chicago, Allinson and Penrose, op. cit., 331. •» N. Y. L. 1882, c. 410, sec. 108. » N. Y. L. 1888, c. 583. 212 LOCAL ADMINISTRATION. the terms of the heads of departments are not the same as that of the mayor, so that if he does not possess the power of removal, he may not, on coming into office— fill these positions as he may wish/ The charter^Hp*ooklyn, however, recognizes that the coin- cidence^^ tlfc terms of the heads of executive depart- ments with that of the mayor is an important means of securing administrative harmony and efficiency.^ As a general thing the city charters do not recognize in the mayor any power to direct the actions of the heads of departments, but where he possesses the absolute power of removal he must perforce practically possess such a power. As this power of removal is very slight in most cases, it cannot be said that the mayor possesses any large powers of directing the heads of departments how they shall perform their duties. Generally, however, the later charters do provide that the mayor may call on the heads of departments for reports as to the workings of their departments, and in several instances give the mayor the right to examine their accounts.^ In addition to these powers over the 'personnel of the city official service, the mayor often has powers relating to the several administrative services of a material rather than a personal character. Thus the mayor has, as a usual thing, the power to veto all the ordinances of the common council and in the case of ordinances making appropriations to veto the specific items which seem to him improper. This veto may be ^ E. g. see St. Louis, Boston, J. H. U. S., V., 121-3, 156 ; New York, N. Y. L. 1882, c. 410, sees. 34-45. ^ N, Y. L. 1888, c. 583 ; cf. Allinson and Penrose, op. cU.^ 289. ^Phila., Pa., L. June i, 1885, art. i ; N. Y. L. 1882, c. 410, sees, no, 164. MUNICIPAL ORGANIZATION. 213 overridden by a two-thirds vote of the council.* Finally in many cases the mayor is an ex-officio member of certain special boards which have been established to attend to certain matters affecting the city welfare.'^ 2. The municipal council. — The same l|^of con- fidence in the council which has led to 4ts^^Pntegra- tion and to the establishment of the mayor separate and apart from it with an increasingly greater number of powers over the executive official service of the city, has led in certain instances to a great decrease in the powers, regarded as distinctively deliberative in char- acter, which, at the time of the attempted separation of the executive and deliberative functions, were re- served to the council. By the original charters and by the common law it was recognized that the city council, as the representative of the city corporation had a wide power of police ordinance.^ This formerly wide-reach- ing ordinance power has been curtailed quite generally either by the fact that the legislature has itself fixed in detail the sanitary or other police regulations which shall be observed by the inhabitants of the city,-* or has granted the ordinance power to the heads of the various executive departments of the city adminis- tration. ^ Further the attempt has been made in some of the * So in Boston, J. H. U. S., V., 117 ; St. Louis, Ibid., 157 ; Philadelphia, Pa., Law, June i, 1885 ; cf. Bryce, op. cii., I., 595. ' See, e. g., Philadelphia, Pa., Law, June i, 1885, art. i. ' See as to Boston, J. H. U. S., V., 119 ; as to Philadelphia and the Penn- sylvania corporations, Wartman v. City, 33 Pa. St., 202, 209 ; Dillon, op. cit., I., 392. * E. g. see the case of New York City L. 1882, c. 410, sees, 86, 310, 330, 393, 440 et passim. ^ E. g. take the cases of Boston, J. H. U. S., V., 121, 122, and St. Louis, Ibid., 167. 214 LOCAL ADMLNLSTRATION, larger cities of the common weal tli of New York to curtail very largely the power of the council over the finances of the city. While the original city corpora- tion did 1^^ possess the taxing power for local mat- ters, the^Hllution of the expenses of so many matters of centrl^onSern upon the cities, as well as the neces- sary assumption by the city corporation of so many new branches of administration, made necessary by the greater complexity of modern municipal life, has made it necessary to give to the city corporation the taxing power.^ That is, the legislature designates the kind of taxes whicli the city may raise and leaves to the city authorities the fixing of their amount, in some cases, as e, g. in Boston, limiting the rate which may be levied."^ The municipal authority which originally received tbe taxing power was the city council. This seems to be the rule at the present. But in New York and Brooklyn this did not seem to work satisfactorily, and the scheme has been devised of really limiting the amount of taxes which may be raised by the council by taking away from it the power of making the ap- propriations, for the purpose of paying which, resort has to be had to taxes. In these two cities the power of making the appropriations has been given to a board of executive officers, of whom the mayor is one, differently constituted in the different cities. In Brook- lyn the council has the right to cut down but not to raise the appropriations made by this board ; in New York the board of aldermen may not change them in any way.^ In general, however, it is the council whicli ' Dillon, op. cit.y I., 69. 'J. H. U. S.,V., 114. 3 N. Y. L. 1888, c. 583, title ii., 18. N. Y. L. 1882, c. 410, sec. 189. See also Allinson and Penrose, op. cit,^ 300. MUNICIPAL ORGANIZATION. 215 has the power of making the appropriations necessary to carry on the city government. But it must be re- membered that the tendency in all the commonwealths is for the legislature to enumerate in detail the objects for which municipal expenditure may bi incurred. Sometimes this tendency is carried so far «^ to enu- merate in statutes the salaries of many of the officers of the city government. Nothing is more common in some of the commonwealths than for the legislature to interfere to raise the salaries of certain of the city officers who have political "influence" without con- sulting the city authorities in any way.^ Where the legislature has thus fixed in detail the work of the city and the salaries of its officers the power of appropria- ting money loses almost altogether its discretionary character and becomes little more than an arithmetical process, a purely ministerial act whose performance may be enforced by the courts on the application of any person interested in having the particular appro- priation made.^ An extreme example of this tendency to ^^ in detail the work of the city and the salaries of its officers by legislative enactment is to be found in the city of New York.^ In Philadelphia, however the councils seem to have quite a large power over the appropriations/ and in all cities the authority for making the appropriations, generally the council, may provide for certain, though not for many, optional ex- penses whose amount also it has the power to fix. ' Cf. Pres. Seth Low in his chapter on " Municipal Government " in Bryce, American Commonwealth, I., 630. 2 People ex rel. Wright v. Common Council of Buffalo, 16 Abbott's New- Cases affirmed in 38 Hun N. Y., 637. ' See L. of 1882, c, 410, sec. 52 et passim. ^ See an ordinance of the councils of date Dec. 30, 1886, cited in Allinson and Penrose, op. cit., 359. 2i6 LOCAL ADMINISTRATION, The form of the city council has been subjected to considerable change. In some cases it is formed, as originally, of a single body, as e, g, in New York, Brooklyn, and Chicago^; in others, of two chambers, as e. g, in Boston, Baltimore, St. Louis, and Philadel- phia.^ The members of the council, whether it con- sists of a single body or of two chambers, are elected by the people of the city, which is often differently districted for each chamber where the two-chamber system has been adopted. In one case, St. Louis, the members of the smaller chamber are elected on a gen- eral ticket.^ In Brooklyn also a certain number of the aldermen are called aldermen at large and are elected by general ticket, though, when elected, they form part of the single chamber of which the council is composed.* In no instance do we find an instance of a self-perpetuating council, though this was the case in Philadelphia as under the old English system.^ In one case we find minority representation. This is Chicago.^ The term of ofiice of the members of the council varies * N. Y. L. 1882, c. 410, sec. 29 ; Allinson and Penrose, op. cit., 331. * J. H. U. S., v., 118, 157 ; Allinson and Penrose, op. cii., 331. "J. H. U.S., v.. 157. * N. Y. L. 1888, c. 583, title ii., 3. »J. H. U.S., v., IS etseq. •Allinson and Penrose, op, cit., 331. The authors of this book adduce New York as a place where the principle of minority representation has been adopted in the board of aldermen. This is a mistake, but a natural one. For the con- solidated act provides for minority representation (sec. 29). This provision was taken from L. 1873, c. 335, sec. 4, as amended by L. 1878, c. 400, but is to be read in connection with Laws of 1882, c. 403, which provides for representa- tion of the majority alone. The fact that the consolidated act bears a later date than that of the chapter of the laws of 1882 providing for majority repre- sentation does not affect the validity of chapter 403 of the laws of 1882, since the last section of the consolidated act provides that it shall be regarded as passed on January i, 1882. Section 29 of the consolidated act is therefore amended by chapter 403 of the laws of 1882. MUNICIPAL ORGANIZATION. 217 from one year as in New York/ to four years as in St. Louis.^ Where the bicameral system has been adopted for the council the term of the members of the smaller chamber is often longer than that of the members of the larger chamber.^ Generally the council is totally renewed at one time. But in some cases, as e. g. St. Louis/ one half only retire on the occasion of a coun- cil election. As a general rule all the officers of the United States municipality are salaried, with the exception, in some cases, of the members of the council, and service is as a rule voluntary, though this was not originally the rule.s For the higher positions even, no special technical qualifications for office are provided as a gen- eral thing, but for the lower, especially in the case of the clerical service, the appointment is made often as a result of competitive examinations.^ This is so in the commonwealths of New York and Massachusetts and the city of Philadelphia.^ The elections by which so many of the positions in the city service are filled are generally by universal suffrage. The only important exception to this rule is to be found in the case of those commonwealths which have made provision for registration laws. Sucli laws really provide an unlimited lodger suffrage with, how- ever, a very short term of residence within the city, * L. 1882, c. 410, sec, 29. »J. H. U. S.,V., 157. * See, e. g. , the charter of St. Louis where the term of office of the members of the " council," as the smaller branch is called, is four years and that of the house of delegates is only two years. J. H. U. S., V., 157, 158. *J. H. U. S., v., 85. ^ B. g. see the early New York charters. * See the proposal made by Pres. Eliot in TAe Forum, October, 1891. 'See infra, II., p. 35. 2i8 LOCAL ADMINISTRATION. sometimes as low as one month, and seldom longer than six months. In one city, however, wk, Philadel- phia it is said that most of the voters are freeholders or rent payers. This would seem to be the result of the peculiar social conditions of the city.^ The conditions of eligibility are generally the same as those for electors, though in one or two instances in order to be qualified for office it is necessary for the elector to be assessed at a certain amount for the purposes of taxation.^ IV. — The village or borough. 1. General position. — The city is not, however, the only municipality known to the American law. In many cases the needs of a locality, which may be a portion of one town or may lie in two towns, demand a different form of government from that offered in the ordinary town organization, while at the same time they do not demand so compact an organization as that to be found in a city. For the purpose of satisfying these demands the village or borough organization has been provided. In New England, where the people have been able to satisfy the demands made by thickly populated districts through the ordinary instrumentali- ties of the town, this embryonic municipal organization is said to be comparatively rare, though it is still to be * See Allinson and Penrose, op. cit., 297 ; Bryce, op. cit., II., 360, note 2. * Thus in Baltimore the members of the council must be assessed for at least $300. They must further be residents of the city for at least three years, and must be citizens of the United States. This last is so in Brooklyn also, N, Y. L. 1888, c. 583, title II., 3. Those of the smaller branch of the Baltimore coun- cil must be assessed at $500, be resident for four years, and be twenty-five years of age. Similar qualifications are required of the mayor. Allinson and Penrose, op. cit., 329. In St. Louis every member of the council must be thirty years of age, a citizen of the commonwealth for five years, and a resident and freeholder in the city for one year. J. H. U. S., V., 157. MUNICIPAL ORGANIZATION. 219 found, as e, g. in Connecticut and Vermont, which have probably been influenced by their nearness to New York. But in the middle commonwealths, and in the west and northwest, the village or borough organi- zation is very common, so common indeed as very seriously to encroach upon the sphere of town govern- ment. For in almost all cases where the social condi- tions are such as to permit the adoption of the village organization {i. e., where a comparatively large number of people live within a small area) we find that it is as a matter of fact adopted. Thus in New York the gen- eral law for the incorporation of villages provides that the village organization may be adopted where three hundred resident inhabitants are to found in a district of less than one square mile in extent.^ The main dif- ference between the town and the village is that, while the town is governed by the town meeting, i. e. the meeting of the political people of the town, the vil- lage is governed by a select body, to wit, the board of trustees or burgesses. Further, while the town is a quasi municipal corporation, the village or borough is a municipal corporation proper,^ since it is formed primarily for the satisfaction of local needs. But, like the city, the village, though formed primarily for local needs, may be made use of by the commonwealth for the purposes of general administration. On the other hand, the village may practically be distinguished from the city from the fact that, on account of its small size, it is seldom as a matter of fact made an agent of general administration. About the only branch of general administration which is entrusted to the village is the preservation of the peace. ^ See N. Y. L. 1870, c. 291, sec. i. ' Dillon, op. cit., I., 45. 220 LOCAL ADMINISTRATION. 2. The milage organization, — The organization pro- vided by the New York law for the incorporation of villages, to which reference has already been made, may be taken as an example of the village organization in the United States. By this the village authority is a board of three or more trustees and a president who is a member of the board. By the side of the trustees are a treasurer, a clerk, a collector, and a street commissioner. The trus- tees, the president, the treasurer, and the collector are elected by the electors in the village. The trustees serve for two years, one half or the major part of the number retiring each year, while the other elected offi- cers serve for one year. Residence in the village is a necessary qualification of eligibility for all offices, and the ownership of property to be assessed for the taxes made necessary by the expenditures of the village, is an additional qualification for the positions of president and trustee. The other officers are to be appointed annually by the board of trustees, who may also ap- point fire and police officers and a sealer of weights and measures. None of the offices is obligatory ; and the offices of president and trustee are unpaid. The board of trustees has large powers relative to the official service of the village, having the powers to remove for misconduct and after a hearing, any officer whom they appoint (the shortness of the term of office makes a larger disciplinary power unnecessary), and, by regulation, to fix the powers and duties of all the village officers so far as this has not been done by the law, which is the case for the offices of president and treasurer and one or two others. Most of their other powers are economical in character relating to the MUNICIPAL ORGANIZATION, 221 finances and local services of the village. They have the care of the village property, make contracts for the village, and audit all claims against it. In their man- agement of the finances they are subjected to a popular control. For this purpose the expenditures of the village are divided into ordinary and extraordinary ex- penditures, the latter consisting generally of all expen- ditures of over $500 for any one specific object. The estimates for ordinary expenditures for the ensuing year are to be presented to the people at the annual election, who may then judge of the wisdom of the trustees' action before casting their votes, though they take no direct action upon the estimates. The extraor- dinary expenditures must, however, be voted by those electors who are liable to be assessed for the tax to de- fray them in their own right or in that of their wives. To pay the expenses of the village administration power is given to the trustees to levy a general property tax in about the usual way, and a poll tax of $1 on each male inhabitant between the ages of twenty-one and sixty years. No debts of a permanent character may be contracted with the exception that debts of not more than ten j^er cent of the assessed value of taxable property in the village, may be incurred for the purpose of supplying the village with water.^ The power to borrow money is, however, often granted by special and local legislation. Besides these powers of a finan- cial character the trustees have quite an extensive power to issue local police ordinances which they may sanction with a penalty not exceeding $100 ; have care of the public health and have the ordinary powers of the town highway commissioners for the village district » N. Y. L. 1875, c. 181. 222 LOCAL ADMLNLSTRATION. which is taken out of the jurisdiction of the town high- way commissioners. A later law ^ allows the trustees to provide for the election by the people in the larger villages of police justices with the same criminal juris- diction, as that possessed by the town justices of the peace who are not to have jurisdiction within the vil- lage district. These police justices have also jurisdic- tion over violations of village ordinances, and in case of the non-payment of the penalty, which is to be sued for in an action for debt, may commit the violator to the county jail. » N. Y. L. 1875, c. 514. CHAPTER IV. GENERAL CHARACTERISTICS OF LOCAL ADMINISTRATION IN THE UNITED STATES. /. — Statutory enumeration of powers. One of the most noticeable characteristics of the system of local administration in the United States is to be found in the fact that all matters relative to the organization of the local administrative system, all the powers of the various local districts considered as municipal corporations, and the duties of the officers acting within these districts are fixed in their most minute details by statute.* As no administration can long be carried on on the same general rules, and as the needs of different districts differ very much one from the other, it is necessary to give to some authority the power to change in its details the general plan of administration so as to suit changed conditions and varying needs. But as these minute details have been fixed by statute they can be changed only by statute. Therefore, the statute-making authority is being called upon all the time to act, in order that the administra- tion of local affairs may be carried on to advantage. The general system is continually suffering modifica- tions, and the various districts have, as a result of the intervention of the legislature, quite different powers. ' Cf. Dillon, op. cit., I., 145. 223 224 LOCAL ADMINLSTRATION. Being accustomed to this continual interference by means of special and local legislation in the affairs of the localities, the legislature comes to think that these local affairs may best be regulated from the centre of the commonwealth, and often acts where it has not been asked to act by the local authorities or by the inhabitants of the localities. It often imposes burdens upon the localities which are unwise, and not in- frequently allows itself to be made use of by unscru- pulous persons or some political clique to forward their interests at the expense of the true interests of the locality directly concerned/ How far this habit of special and local legislation is carried is seen on exam- ining the session laws of New York for the year 1886, a year which has been chosen simply at random. Of the 681 acts passed that year by the legislature, 280, L e. between one third and one half of the entire work of the legislature, interfered directly with the affairs of some particular county, city, village, or town which was mentioned by name in the act. The results of this custom of special and local legislation are : 1. The centralization of local matters in the hands of an irresponsible central authority. — So few matters relating to the localities are fixed by the con- stitution that the power of the legislature over the localities is supreme. Almost the only thing which the legislature cannot do is to take away from the localities their privilege of electing their own officers. This is provided for in the constitutions of several of the commonwealths and is therefore beyond the power ' President Seth Low says in his chapter on Municipal Government contained in Bryce, American Commonwealth, I., 630, that in the commonwealth of New York "the habit of interference in city action has become to the legislature almost a second nature." GENERAL CHARACTERISTICS. 225 of the legislature/ The force of such provisions is often, however, destroyed by the interpretation put upon them by the courts. Thus in New York the <;ourt of appeals decided in the case of People v, Drwpei' ^ that the appointment of police commissioners by the governor and senate in accordance with a statute of the legislature was not in conflict with the constitution, because such officers were not local but commonwealth officers.^ The same court held later* that fire and health officers might also be appointed by the governor because these officers were not only public commonwealth officers, but were also new officers, i. e, were not in existence at the time of the adoption of the constitution, and were therefore not subject to its provisions. This distinction between old and new officers first made in these cases was carried to the bounds of the absurd in the case of Astor v. The Maym^^ which permitted the transfer of old functions, performed by old municipal officers, to new officers who might constitutionally be regarded as public and not local officers, and might be appointed by the gov- ernor. The result of this line of decisions has been to deprive the cities of New York, and particularly the city of New York, of the right of local self -ad ministra- tion which, it was supposed, was guaranteed by the constitution of the commonwealth. Thus at one time there was to be seen in the city of New York, attend- * E. g. see constitution of New York, art. 10, sec. 2. Cf. Dillon, op. cit., I., 100. ^ 15 N. Y., 532. ^ See supra, p. 204 for other decisions of a similar tenor. * People V. Pinckney, 32 N. Y., 377, and Metropolitan Board of Health v. Heister, 37 N. Y., 661. 5 62 N. Y., 567. IS 226 LOCAL ADMLNISTRATION. ing to a work whicli has been held by the highest court of the commonwealth to be a purely munici- pal undertaking/ viz. the aqueduct, a commission whose members were for the most part appointed by the central government of the commonwealth and not by the authorities of the city which alone is inter- ested.^ On this commission provision was made ^ for only one representative of the city which was paying for the work, and which was primarily if not alone in- terested therein, to wit, the municipal commissioner of public works. This same legislative interference in municipal matters has been characteristic of the action of the legislature with regard to the providing of means of rapid transit for the city. The court of ap- peals in one of its decisions gives evidence of its belief in the dangers resulting from this line of decisions. This is the case of People v. Albertson,"^ where it distinctly says that the purpose of article 10, section 2, of the New York constitution was to secure the right of local government to the civil divisions of the commonwealth and that this right could not be taken away from them by the legislature. But the majority of its decisions would seem to be in the direction of permitting the legislature to centralize as much as it saw fit the ad- ministration of the commonwealth. That these deci- sions are impolitic and unwise no one will deny. That legally they were in some cases unnecessary is to be seen when they are compared with the decisions of the courts of other commonwealths. Thus in Michigan ^ Bailey v. The Mayor, 3 Hill, 531 ; People v. Civil-Service Boards, 103 N. Y., 657. 5 N. Y. L. of 1883, c. 490 ; N. Y. L. of 1886, c. 337. « N. Y. L. 1886, c. 337. * 55 N. Y., 50. GENERAL CHARACTERISTICS, 227 and Indiana a similar constitutional provision has been interpreted as preventing the legislature from granting to the governor the power to appoint municipal com- missioners of public works/ or itself to appoint park commissioners and force the city to provide a park.^ This tendency towards a legislative centralization, which is to be seen also in commonwealths other than New York, has led in some of them to the insertion in the constitution of provisions which aim at giving the local areas a greater independence of the legislature, at fixing by the law in the constitution of many matters of local administration, or at assuring to the localities the right to regulate within the law their own affairs free from all les^islative interference.^ 2. Local variations. — A further result of this habit of special and local legislation is a great lack of uni- formity in the administrative system of even a single commonwealth, especially in a commonwealth like New York, where the constitutional provisions ensur- ing the independence of the local corporations are of comparatively little importance. Such a lack of uni- formity is not of course a serious defect ; indeed it has the advantage of not sacrificing local interests to the fetish of uniformity and symmetry. It does of course add very greatly to the difficulties of both the student and the practising lawyer since search for special statutes must always be made to find out what are the actual powers of any particular district, it being unsafe to place much dependence on general statutes. This * People V. Hurlburt, 24 Mich., 44 ; Cf. State v. Denny, it8 Indiana, 449; Evansville V. State, Ibid., 426. ' People V. Detroit, 28 Mich., 228. * Cf. Stimson, American Statute Law^ pp. 94, 95. 228 LOCAL ADMINISTRATION, local and special legislation is apt to result in conflict- ing legislation also. 3. No heal independence. — The possession by the legislature of this right of control over the affairs of the local areas and the readiness which the legislature has ever shov^n to exercise this right have brought it about finally, that it is almost impossible to distinguish the sphere of central from the sphere of local action. The office!*^ acting in the local areas and elected by the people of the localities are for the most part, not- withstanding the juristic personality which has been recognized as belonging to the localities, mere agents of the central administration of the commonwealth, and the entire administrative system in the localities may be changed at will by the legislature.^ //. — Administrative independence of the local authorities. 1. Absence of central administ/rative control. — The second general characteristic of the American system of local administration is to be found in the great num- ber of the authorities and their independence both of each other and of the central administration of the commonwealth. The great number of the authorities is due to the fact that the administration is not pro- fessional in character.^ Their independence is due to the decentralized character of the administrative'system adopted in the commonwealths. The rule is, that, notwithstanding most of the authorities in the local areas attend to a great deal of work which interests the commonwealth as a whole, they shall still be elected by the people of the localities in which they act, and when ^ Cf. Lorillard v. Town of Monroe, ii N. Y., 392 ; United States v. the Baltimore and Ohio R. R. Co., 17 Wallace, 322. ' Infra, II., p. 7. GENERAL CHARACTERISTICS. 229 elected shall act free from almost all central adminis- trative control. Seldom do we find that any adminis- trative authority has the power to direct them how they shall perform their duties or to quash or amend their action or to exercise any disciplinary power over them. In a few instances, however, where the action of the authorities in the localities may have a disas- trous effect upon the general administration of the commonwealth in matters where it is particularly de- sirable that, the administration shall be conducted in accordance with a uniform plan and where local action may produce inequalities in the burden of common- wealth taxation, resort has been had to a central administrative control which, however, up to the present time has not been thoroughly worked out. Thus in New York the governor has disciplinary powers of a limited character over a number of officers acting in the localities among whom may be mentioned the sheriff, the district attorney, and the superintendent of the poor.^ The county treasurer who is the fiscal agent both of the county and of the commonwealth was formerly removable in the same way. Such powers seem, however, to be exceptional. In New York also in the sanitary administration the state board of health has a series of supervisory powers over the actions of the local boards of health.^ In the administration of public education the commonwealth superintendent of public instruction has similar and even larger powers of administrative supervision over everything connected with the common schools.^ Such a central administra- ' Supra^ p. 79. * Public Health Act of 1885, c. 270, sees. 3, 5, and 8. » School Law of 1864, Title I., sec. 18 ; Title XII. 230 LOCAL ADMINLSTRATION. tive control in educational matters seems to be quite common. Finally in the tax administration provision is often made for the equalization of assessment valua- tions both for the county and for the commonwealth, in order to prevent the assessors in one town or county from assessing the property subject to taxation in that town or county at such a low rate of valuation as to throw part of the town's share of commonwealth or county taxation upon the other towns/ But these in- stances of the administrative control are quite rare. 2. Decentralized character of the local organizations. — Not only is the central administrative control over the actions of the officers in the localities very weak, but the administration in any given district is not at all concentrated. Seldom do we find any authority which has administrative supervision of any extent over the actions of the other authorities in the locality. A reference to the powers of the county authority, i. e, the supervisors or the commissioners, will show how few are their powers of administrative control.^ The only possible exception to this general independence of the local authorities from the other local authorities is to be found in the case of the municipal administration, where the organization is considerably more concen- trated. It has been pointed out that the tendency of modern American municipal development is to con- centrate the municipal administration still more and to increase very largely the powers of the mayor.^ But as a general thing even now the various municipal officers are comparatively independent of the mayor, ' See Cooley on Taxation^ 2d Ed., 421-423, 747-749. 2 Supra, pp. 178-192. 3 Supra, p. 21 0. GENERAL CHARACTERISTICS. 231 though they are somewhat more dependent upon the mayor and the city council acting together. The gen- eral characteristic of the American system of local ad- ministration is that it is from the administrative point of view extremely decentralized. The administrative control, both central and local, is believed to be un- necessary because of the detailed enumeration in the statutes of all the powers of the local corporations, and of the officers in the local areas. Everything is so fully regulated by the legislature that there is little room left for administrative instructions to be sent either by the central authorities of the commonwealth or any superior local authority. In order to ensure that offi- cers will perform the duties imposed upon them by the statutes resort has been had to the sanctions of the criminal law. To the violation of almost every official duty is attached a criminal penalty which is to be enforced by the ordinary criminal courts. Detailed enumeration of official duties in the statutes and pun- ishment of the violation of official duties by the criminal courts are thought to be sufficient to ensure efficient and impartial administration and to obviate the neces- sity of forming any strong administrative control.^ ///. — Non-professional character of the system. The third general characteristic of the American system of local administration, as indeed of the entire American system of administration, is to be found in the non-professional character of the officers. We find almost no professional officers. Almost all are non- professional in character. That is, as a rule the of- ficers receive no salary but only j^er diem allowances, ' Infra, II., pp. 80, 88. 232 LOCAL ADMLNLSTRATION. which are seldom greater than the wages received by a skilled laborer, serve for short terms of office, and, after filling their term of office, return again to the ranks of society from which they came. Having no opportunity to develop professional habits they thus do not form a special class in the community. The result of such a system of official organization is that society governs itself, whence the name that is given to the system, viz,, that of self-government, which means a system of government and administration in which society governs itself through the organization of the state. In such a system the state delegates cer- tain specific powers to officers appointed by society in its local organizations — officers who on account of the shortness of their terms of office do not cease to have all the feelings of society. The only exception to this rule of the non-professional character of the offi- cers in the local administrative system is to be found in the cities, where the necessities of municipal adminis- tration seem to call for quite a number of professional officers, who are generally salaried and serve for longer terms. Service as officer is not only unpaid but it is often obligatory. There are at the present time more excep- tions to this rule of the obligatory character of the service than in former years, and indeed the obligation itself seems to be disappearing. By the original Eng- lish system, however, service as administrative officer was really obligatory in almost all cases, just as much as service on a jury or in the army, but at the present time the tendency would seem to be towards voluntary- ism. In New York many of the local offices were until recently obligatory, refusal to serve being punish- GENERAL CHARACTERISTICS. 233 able with a fine of $50. This was true of most of the town offices, e, g, supervisor, town clerk, assessor, commissioner of highways, and overseer of the poor,^ but the obligation to serve seems to have been omitted in the revision of the law made in ISQO.'^ ^ See New York Revised Statutes, Part I., Chap. XI., Title III., art. 2d., sec- tions 25 and 26 ; cf. State v. Ferguson, 31 N. J. L., 107. * L. 1890, c. 569. OF CHAPTER V. / LOCAL ADMINISTRATION IN ENGLAND. /. — History from the seventeenth century to the present time, 1. Defects of the old system, — The history of the English system of local administration up to the begin- ning of the seventeenth century has already been traced/ It has been shown how the original prefecto- ral administration of the sheriffs was gradually re- placed by the administration of the justices of the peace, who practically had within their hands the entire control of administrative matters in the localities and from whom were recruited to a large extent the mem- bers of Parliament. This system, it has been pointed out, was really one of great local self-government. It was not, however, in the modern sense representative in character; and when, in 1830, its financial side be- came more important on account of the great increase in the^ amount of local taxes through the increase of the poor-rates, it was thought that some voice as to the amount of these local taxes should be given to the tax- payers. The change in feeling was due in large part also to social changes. The application of steam power to manufactures and the very general introduction of machinery revolutionized industrial methods, massed ^ ' Supra, pp. 162-165. 234 LOCAL ADMINISTRATION IN ENGLAND. 235 large populations in the cities, and gave to the posses- sors of personal property, that is the commercial and industrial classes, an importance they never had before. This change in the relative importance and power of the property-owning classes led first to a change in the representation in Parliament — a change which was brought about by the celebrated reform bill of 1832. By this act the balance of political power was taken away from the nobility and gentry and given to the middle classes. ' As the system of local administration of that time gave most of the power in the localities to the nobility and the gentry, it was only natural that the new political masters should seek to discover and adopt some plan of administering local affairs by means of which their local influence might be in. creased. Another reason for the change which soon followed was the necessity of wide-reaching reforms. The de- ploi'able condition of the municipal administration has already been alluded to.' The power exercised at first by the Crown and later by the nobility over the munici- pal elections, in order thereby to control the represen- tation in Parliament, had been used in such a way that the municipal organization and institutions were utterly incapable of any sort of even passable administration. Further the poor-rates had increased to such an enor- mous sum in the years immediately preceding 1832 and the anxiety of the local authorities everywhere to throw the burden of supporting the poor on some other locality than their own had led to a complicated law of settlement which was totally at variance witli the needs of an advancing industrial society. But * Supra, p. ig8. 236 LOCAL ADMLNISTRATION. the necessary reforms could only be realized by the establishment of a uniform system of administra- tion. This implied a centi-al control such as had not before existed. In theory the justices of the peace were subject to the guidance of the central government, and the central government could in theory dismiss them from office if they disobeyed its instructions. But the high social and political position of the justices made it a delicate matter for the central government to send instructions to them ; and even if such instructions were sent it was extreme- ly difficult to enforce them. The threat of dismissal from office had no terrors for the average justice of the peace. Dismissal meant relief from arduous service, and involved no pecuniary loss, since the justices received no pay. Hence the dismissal of a justice of the peace is rarely met with in later English history ; and the power to send the justices instructions became finally an empty prerogative.^ 2. The reforms of 1834 and 1835.— For these reasons some of the first resolutions passed by the new Parliament, formed as a result of the reform bill, pro- vided for a thorough investigation of the administra- tion of the poor-law and of municipal government. In 1833 the celebrated poor-law commission was appointed and began its work. The result of this work was published in 1834, and has been described as "perhaps the most remarkable and startling document to be found in the whole range of English, perhaps, indeed, * The last attempt to coerce justices of the peace through the power of dis- missal from office was made in the reign of William III by Lord Somers and created such a storm that no subsequent ministry has dared to repeat it. Gneist, Das Englische Verwaliungsrecht, 1884, p. 389. LOCAL ADMINISTRATION IN ENGLAND, 237 of all, social history." ^ The plans of reform advocated in this report and finally adopted in the Poor-Law Amendment Act of 1834 involved the formation of a system of local administration which should be represen- tative of the local tax-payers, and at the same time sub- ject to central administrative control. The parishes on which had been devolved the burden of supporting the poor under the old system were grouped into unions. In each union there was formed a board of poor-law guardians, to be elected by the inhabitants of the union. Service as guardian was not obligatory as had been service in most of the positions under the old system. This board confined itself practically to de- ciding the amount of money to be spent while the actual detailed administrative work, formerly attended to by the unpaid overseers of the poor and the justices of the peace, was now to be attended to by salaried subordinates devoting their whole time to the work. That is the actual poor-relief was to be distributed mainly by a salaried relieving officer. This board and all its officers were subject to a most strict central ad- ministrative control exercised by the central poor-law board at London. There were several reasons for the introduction of this control. In the first place it was felt that some method must be devised to restrain the local selfishness which had been one of the greatest evils of the old system. If under the new system a locality showed a desire to escape any of the burdens that were imposed upon it by the law, the central con- trol could hold it up to the performance of its duties. In the second place the new system did not offer the same guaranties as the old for the integrity and intel- ' Fowle, The Poor-Law, 1881, p. 75. 238 LOCAL ADMINISTRATION, ligence of its officers. Under the old system as a rule, the justices of the peace — the most prominent men in the county — either did the work themselves, or had it done under their personal direction ; under the new system the detailed administrative work was to be attended to by salaried subordinates of the boards of guardians. A central control was necessary finally be- cause of the necessity of uniform administration. As the needs of English society have increased, new administrative agencies have been demanded and de- vised for their satisfaction ; and these new agencies have been organized on the same lines as the organs for the poor-law administration. Finally the county has been reorganized on somewhat the same plan. At about the same time that the poor-law administration was being investigated the municipal administration also was being studied with the purpose of devising some plan of reform which should do away with exist- ing defects and make the municipal organization an efficient instrument for municipal administration. The result of the report of the commission appointed for this purpose was the Municipal Corporations Act of 1835, which introduced a uniform law for the organiza- tion of the municipal corporations of the kingdom and abolished most of the abuses of the previously existing charters. The form of organization adopted for the municipal boroughs has since been adopted for the county organization by the Local-Government Act of 1888. As a result of these changes the justices of the peace have lost much of their importance. Most of their administrative functions have been taken from them, and given to special administrative officers LOCAL ADMINISTRATION IN ENGLAND. 239 established by the reform legislation. They have, however, retained most of their judicial functions, which have really, somewhat as in the United States, been increased. 3. Present position of the justices of the peace, — The long-continued failure of the English law to make any clear distinction between justice and administration has brought it about that, notwithstanding the recent attempts to separate these two classes of functions, the justices of the peace still liave under the present sys- tem, as indeed they also have in the United States, a series of duties which are, from the continental point of view at any rate, administrative in character.* They are thus still conservators of the peace and as such have the right to bind over all disorderly persons to keep the peace. They act as the preliminary investigators of all crimes, even of felonies. Acting either singly or in petty or special sessions they convict of petty offences, commonly without a jury.^ In the courts of quarter sessions, when all the justices of the peace of the county meet together, they form when acting with a jury the lowest criminal court, and without a jury an administrative court of appeal from the orders and convictions of the justices acting singly or in petty and special sessions.^ Certain of these functions have at the same time the characteristics of judicial and administra- tive action, that is the matters dealt with are frequently administrative in character, while it may be impossible to distinguish them in form from judicial acts. For ' Cf. Wigram, The Justices' Note-Book, Chap. I. ; Anson, op. cit., II., 237. ' Stone, Practice of Justices of the Peace at Petty and Special Sessions, gth edition, Part I. ' Smith, Practice at Quarter Sessions 1882, p. 4 ; infra, II., p. 214. 240 LOCAL ADMINISTRATION. English administrative law is highly specialized ; its rules are put into the form of direct commands to the people to do or not to do particular things. These commands are sanctioned by criminal penalties, and the imposition of these penalties is entrusted to the justices of the peace acting as police judges.^ The result of this specialization of the English law has been an enormous extension of the police powers of the justices of the peace even under the present system. In the cities, however, the tendency is for the justices, both in Eng- land and in the United States, to give way to stipen- diary magistrates and salaried recorders.^ Besides these cases in which the action of the justices of the peace is judicial in form but often administrative in effect, there is a further class of cases in which their action is more obviously administrative. Not all the laws whose execution is entrusted to the justices of the peace can be reduced to the form of simple commands addressed to the people at large. Certain matters have to be left to the discretion of the justices. Thus it has been left to them to decide the questions of law and fact that arise in connection with removals under the poor and sanitary legislation, the assessment of local taxes, etc.^ etc. In these cases the justices act other- wise than in the foregoing cases. Their decision takes on the form, not of the conviction of a violation of the law accompanied by the imposition of the proper penalty, but rather of an order commanding that what is proper be done. Here it will be seen that the justice acts as an administrative rather than as a judicial officer. ^ For further explanation see infra, II,, p. 107. ' Wigram, op. cit., 6 ; Probyn, Local Government and Taxation in the United Kingdom, 31, 32. LOCAL ADMLNLSTRATLON LN ENGLAND. 241 His action is administrative in form as well as in effect. He does not decide a controversy but orders something to be done which it is necessary shall be done in order that the government shall be carried on/ This is largely true of the United States also. Finally the justices of the peace have in their courts of special and petty sessions to appoint a few unim- portant officers in ^ the localities, e. g, the overseers of the poor not ex-officio overseers and the unsalaried con- stables ; they also have a series of powers relating to the various branches of the administration of internal affairs attended to in the localities. Thus they have even now considerable power relative to the highways though the new county council has robbed them of the most important of this class of powers.^ They still revise and allow the list of persons liable to serve on the juries.^ They grant licences for the sale of liquor.* Finally the Local-Government Act of 1888 gives the justices a large power over the administration of the police force.5 //. — The county, 1. Organization of the county council. — The English Local-Government Act of 1888, which is the last of the series of acts relating to the present system of local administration, provides that in each of the adminis- trative counties into which England is divided^ there shall be a county council elected, speaking broadly, by the citizens of the county who are occupiers of land ^ Stone, op. cii. Part II.; cf. infra, II., p. 109. *See 25 and 26 Vict., c. 6i, and 27 and 28 Vict., c. loi. ^9 Geo. IV., c. 50. *g Geo. IV., c. 61 ; 35 and 36 Vict., c. 94. * Infra, p. 243. • Except the new county of London, 16 242 LOCAL ADMLNISTRATION. of a clear yearly value of ten pounds and upwards, or are occupiers of buildings of any value.^ This county council is composed of councillors, aldermen, and a chairman, being modelled on the town council estab- lished by the Municipal Corporations Act of 1835.^ All fit persons may be elected county councillors who are county electors, parliamentary electors, or who being non-residents still reside within fifteen miles of the county, and are occupiers of property in the county of a certain annual value, or pay a certain amount in rates for the support of the poor.^ The term of office is three years and all the county councillors retire from office at the same time/ The county aldermen are one third in number of the councillors. Any person quali- fied to be county councillor may be county alderman, but the practice will probably be the same as it has been in the case of the municipal boroughs that only councillors will be made aldermen. The term of office of county alderman is six years, one half the number of the aldermen retiring every third year. The alder- men are elected by the council.^ The county chairman, who in the county takes a position similar to that of the mayor in the municipal borough, is elected in the same way by the' county council from among those persons qualified to. .be county councillors, but if, as is probable, the practice will prevail which has been adopted in the municipal ^ 51 Vict., c. 10 ; Herbert and Jenkin, The Councillor's Handbook, 2. ^51 and 52 Vict., c. 41, sec. i. " Property of an annual value of from £^00 to ;^i,ooo, or rates of from ;i^i5 to ;^30. ■*5i and 52 Vict., c. 41, sec. 2; Stephen and Miller, The County Council Compendium, 24, with authorities. * 51 and 52 Vict., c. 41, sec. 75, and 45 and 46 Vict., c. 50, sec. 14. LOCAL ADMINLSTRATLON LN ENGLAND. 243 boroughs, the chairman will be selected from among the aldermen/ His term of office is one year and he is ex-officio justice of the peace.^ The chairman is the only member of the county council who may receive any remuneration.^ His remuneration is to be fixed by the county council. Service as member of the county council does not seem to be obligatory.* 2. Powers of the county council. — The powers and duties of the county council relate first to the official service of the county and second to the administrative services of the county. The council has a large power over the organization of the county official service, though some of the offices, such as that of county treasurer, are provided for by statute. The council also appoints most of the officers of the county, may dismiss them from office, direct them how to act, and fix the amount of their salaries. The great exception to this rule is to be found in the administration of the police force of the county, which is to be attended to by a joint committee composed of an equal number of members of the council designated by it, and of an equal number of justices of the peace appointed by the court of quarter sessions. The powers of the council relating to the administrative services attended to in the county affect in the first place the general administration of the kingdom, i. e. are central in character. A series of acts had provided that cer- tain matters of general concern should be attended to in the localities by various local authorities. The local- * 51 and 52 Vict., c. 41, sec. 75 ; 45 and 46 Vict., c. 50, sec. 15. ' 51 and 52 Vict., c. 41, sec. 2. ' 51 and 52 Vict., c. 41, sec. 75 ; 45 and 46 Vict., c. 50, sec. 15. *5i and 52 Vict., c. 41, sec. 75, sub. sec. 16. 244 LOCAL ADMINISTRATION. government act has very generally taken away from the various local authorities mentioned in these acts the power to act, and has given such power to the county council. The only important exception to this rule is that all municipal boroughs of over 10,000 inhabitants have, even since the passage of the local-government act, the same powers of this character which they pos- sessed before. The result of this arrangement is that, for the purpose of executing these acts of general con- cern, the local authority is either the county council or the town council of a municipal borough which has more than 10,000 inhabitants.^ In the second place the county council is the author- ity to attend to all business which may affect the county as a corporation. As such county authority it has the power to issue a series of by-laws or ordi- nances of a police character, has the general supervision of all highways and the actual administration of the main roads, and finally and most important of all, has charge of the county financial administration with the power to make appropriations for certain specified ob- jects, to levy taxes, to acquire property and to borrow money when the purpose of the loan is justified by the law. It must, however, be remembered that the prin- ciple of law governing the powers of the county coun- cil is the same as that adopted for the powers of the county authority in the United States, viz.^ that its powers are enumerated in the acts of Parliament and that it may not exercise any power which is not thus based on statute. Parliament has not granted to the county council the general power to attend to the af- fairs of the county as it sees fit, with the power to * For a list of these matters see Herbert and Jenkin, op. cit., 41 et seq. LOCAL ADMINISTRATION IN ENGLAND. 245 establish and maintain such institutions as it may be- lieve are of advantage to the county. No distinction is made between general and local matters, but the powers of the county council in either of these spheres of action are alike enumerated in the statutes. In the third place the county council has a series of powers which affect mainly the actions of the local authorities and districts beneath the county. It has already been shown that the general tendency of Eng- lish development during this century has been in the direction of an administrative centralization by the formation of a strict central control over the actions of the localities and local officers. The result in 1888 was that the acts of almost all the local authorities in the lesser administrative districts were directed and controlled by the central authorities at London. This centralization was deprecated by many persons and was generally felt to have had a bad influence. Therefore the Local-Government Act of 1888 provided that the local-government board at London/ which was the most important central supervisory authority, may by provisional order, to be confirmed by Parliament, trans- fer to the county councils all powers of control pos- sessed by it or by any other central authority over the various local authorities.^ The Local- Government Act of 1888 also gave to the county council the power to adjust local boundaries which were in a very confused state. ^ Formed in 1871 out of the union of the poor-law with the public health board. ^ The probable changes that will be made as a result of the exercise of this power by the local-government board are indicated in Stephen and Miller, The County Council Compendium^ 54. For the county generally see Anson, op, cit., II., 235-238. 246 LOCAL ADMINISTRATION. III. — Rural subdivisions of counties. 1. Local chaos. — Below tlie county all is confusion. The parish was at one time the only rural division be- low the county, but with the growth of new needs there have been formed new divisions, and in these divisions new authorities, for the satisfaction of these needs. While the parish has, as a rule, been taken as the basis of these new divisions, the relation of the parish to the county has from the beginning been so peculiar that the new divisions at the present time bear little territorial relation to the county. The parish in the first place was not always contained with- in one unbroken fence line. In 1873 there were in one county more than seventy divided parishes, while one parish alone had ten outlying portions/ When the union was formed in 1834 it was formed on the basis of the parish, i. e, it was to be composed of a certain number of parishes. As the parishes often crossed county lines, the necessary result is that the union often crosses county lines.^ The rural sanitary district which was formed about 1848 was, as a rule, to be the same in territorial extent as the union. The sanitary districts were classed as urban and rural sanitary dis- tricts. The first were formed out of the second as the needs of the inhabitants demanded. That is, any aggre- gation of inhabitants might be formed into an urban sanitary district, which might thus embrace parts of two unions and parts of several parishes. After these urban sanitary districts had been formed all that was left of any union was denominated a rural sanitary dis- trict. Then the rural guardians of the poor were organ- ^ Chalmers, Local Government, 33. * One hundred and eighty one out of about six hundred and fifty unions do so. Ibid., 51. LOCAL ADMLNISTRATLON IN ENGLAND. 247 ized as the rural sanitary authority for such rural sanitary district." Later came the education act, which formed all parishes or parts of parishes which were not within the limits of any municipal borough (for the parish ran through the municipal borough as well as through the^ county) into school districts. The municipal boroughs themselves also formed school dis- tricts. Besides these districts there are highway dis- tricts, which may be either parishes or combinations of parishes or unions or municipal boroughs, burial dis- tricts, and watching and lighting districts, which, since the establishment of the county police, are simply light- ing districts, and are usually the same as the rural parishes. All these parishes may overlap, with the single exception that the poor-law parish forms an integral part of the union. On account of the non- coincidence of their areas it has been impossible to transfer all the administrative functions which are dis- charged within them to any one well organized author- ity, though the attempt has been made, as has been indicated, to consolidate several of the most important of these functions in the hands of the boards of poor- law guardians. The result of this condition of things is, in the words of Mr. Wright, that — the inhabitant of a rural parish lives in a parish, in a union, in a county, and probably in a highway district. He is or may be governed by a vestry, by a school board, a burial board, a high- way board, the guardians and the justices. [Now the county coun- cil must be added to this formidable list]. There are a multitude of minor matters in respect of which the districts, authorities, and rates are or may be additionally multiplied and complicated in all the above cases.' ' Ibid., 1 01. * Wrighfs Memorandum^ No. i, p. 33, cited in Chalmers, Local Government^ 21. 248 LOCAL ADMLNLSTRATLON. Nearly every one of these authorities has the power of levying taxes and very often each one has its own machinery for the collection of taxes. Mr. Goschen said in one of his speeches that he ^'received in one year 87 demand notes on an aggregate valuation of about £1100. One parish alone," he said, "sent me eight rate papers for an aggregate amount of 12s. 4d."^ The system of areas and authorities has become simply a chaos ; " a chaos," in the words of Mr. Goschen again, " as regards authorities, a chaos as regards rates, and a worse chaos as regards areas." But with regard to this chaos we may lay down the following general principles which, it is hoped, will give an adequate idea of the local government which England possesses at the present time. 2. '^Tke union. — By the act of 1834, the poor-law parishes, which are not, however, always identical with the ecclesiastical parishes, though they generally are, are grouped into unions for the support of the poor. At the head of each union is placed a board of guardi- ans, composed partly of ex-officio members, partly of members elected by the people possessing the local suffrage in the parishes.' The ex-offido members are the justices of the peace residing in the union. It is said, however, that the justices of the peace participate rarely in the administration of the affairs of the union.* The elected members of the board come from the various parishes within the union. Each parish at the time the union is formed is allotted a certain number of elected members whose number is .determined largely * Probyn, Local Government and Taxation in the United Kingdom ^ 127. ' Gneist, Self government^ etc,, 727. ' Chalmers, op. cit, 55. LOCAL ADMINISTRATLON LN ENGLAND. 249 by its importance. Such elected members are elected by tlie owners of property and rate-payers in the parish according to a system of plural voting. A rata- ble value of less than £50 gives one vote ; a ratable value of £50 or more^ and less than £100, gives two votes, and so on up to a ratable value of £250 or over, which gives six votes. A voter may vote both as owner and occupier with the result that one person may cast twelve votes but no more.^ The guardians appoint, subject to the approval of the local-govern- ment board at London, all the necessary subordinate officers, but cannot remove them from office.^ This power is entrusted to the local-government board, which thus has a very large administrative control over the administration of the boards of guardians. While the boards of guardians were originally estab- lished for the purpose of attending to the administration of the poor-law, since the time of their establishment they have been called upon to attend to other branches of administration. Thus in the rural sanitary districts the boards of guardians are the sanitary authorities, i, e, the guardians who come from the rural portions of the union act as the sanitary authoiity for that part of the union which forms a rural sanitary district. They also in many cases act as the rural highway authority.^ The parishes, which were the original highway districts, have in many cases been grouped into larger highway districts and, as far as may be, the highway districts so formed have been coterminous with the unions. Where this has been done the boards of guardians * Gneist, Selfgovernment, etc., 723. ^ Ibid. , 730 ; Chalmers, op. cit. , 54. ' Chalmers, op. cit.^ 59, 109, 136. 250 LOCAL ADMINISTRATION. have been given the power of attending to the high- ways. The actual detailed work of administration connected with the branches which have been put into the hands of the guardians is, as a rule, at- tended to by the officers appointed by them. The boards of guardians have in the course of time become almost entirely deliberative bodies, and their main function is to raise the money necessary to do the work which has been devolved upon them. The sub- ordinate officers, who do almost all the detailed work, are largely under the control of the local-government board at London and, being salaried, form quite a pro- fessional service, which presents a strong contrast to the formerly decentralized non-professional administra- tion of the justices of the peace.^ The funds from which the expenses of the administration of the boards of guardians are paid, are obtained from local taxation — the poor-, sanitary, and highway rates — which falls upon the divisions of which the union is composed, i. e. the parishes, and from subsidies granted by the county council from taxes which, while collected by the cen- tral government, are paid over to the county councils for distribution among the unions and other local divisions according to rules laid down in various statutes and on receipt of the certificate of the central government that the standard of efficiency required by the central government has been maintained.^ 3. The parish. — Below the union is the parish. This area, owing to the establishment of the union, has lost much of its importance. At the present time it is little more than a tax and election district for the purposes ' Gneist, Self government, etc., 731 et seq. * Local Government Act of 1888. LOCAL ADMINISTRATION IN ENGLAND. 251 of local government. As a municipal corporation it also lias the power to put in operation a series of per- missive acts which have peculiar reference to the well- being of its own inhabitants. Such are for example the baths and wash-houses acts, the burial acts, the lighting and watching acts which affect at the present time only the lighting of the parishes, the public libraries acts, and the public improvement acts.^ These acts when adopted by the parishes are carried out and executed by in- spectors and boards of commissioners appointed by the parishes. The general organization of the parishes is as follows. The deliberative authority, i, e. the authority which decides as to the adoption of these acts and such other matters as are in the control of the parish, is the vestry. This consists of the rate-payers of the parish in vestry assembled or of a select vestry which is sim- ply a representative body of the rate-payers. The rate- payers, where the select vestry has not been adopted, vote in somewhat the same manner as in the case of the union elections. That is each rate-payer paying on a ratable value of less than i650 has one vote, on one of between £50 and £75 two votes, and so on up to £125, so that one man have as many as six votes, but in this case no more than six votes, as no one is allowed to vote both as owner and occupier.^ In each parish there are further two overseers of the poor who are appointed by the justices of the peace.^ In parishes which are at the same time ecclesiastical parishes the two churchwardens, who are elected by the vestry, are eX'Officio overseers of the poor.* The main duty of the overseers of the poor is no longer the administration of ^ Chalmers, op. cii., 42 and 43 ; Herbert and Jenkin, The Councillor^ s Hand- book, 5. "^ Chalmers, op. cit., 42. ^ J bid., 43. * Ibid. 252 LOCAL ADMLNISTRATION. the poor-relief which has gone into the hands of the guardians of the poor and their subordinate force. The main duty of the overseers of the poor at the present time is the collection of the rates which are to be paid by the rate-payers of the parish for the purpose of sup- porting the various branches of administration whose expense has been devolved upon the parish ; and as most of the rates are tacked to the poor-rate or else the expenses of the administrative branches are actually defrayed out of the poor-rate the overseers of the poor are really the local tax collectors. In certain cases provision is made for paid assistant overseers of the poor and paid collectors of rates.* It must be noted that the parish organization extends through the urban as well as the rural districts, though it is rather more important in the rural than in the urban districts.^ Finally the rural parishes are all school districts,^ and have, where there are any public schools in the Ameri- can sense of the word, a school board organized on some- what the same plan as the board of guardians but with provision for minority representation in order to make the public schools more satisfactory to the various ecclesiastical minorities which are so common in Eng- land.-* There is a bill before the present Parliament (1893) whose intention is to give to the parish a more representative government by the formation of an elec- tive parish council. If it passes, the stronger parish organization resulting from it will undoubtedly lead to an increase of the functions of the parish and to a greater simplicity in the local-government institutions. * Ibid., 43 and 44. ^ Since in the rural districts the parish more frequently puts into operation the permissive acts to which allusion has been made. ^ Chalmers, op. cit., 126. * IHd.^ 127. LOCAL ADMINISTRATION IN ENGLAND. 253 This bill also substitutes district councils for boards of guardians, and abolishes plural voting.* IV. — Urban subdivisions of counties. The municipalities in England are of two classes, viz, the boroughs or cities and the urban sanitary districts or improvement act districts. The larger boroughs or cities are exempted for almost all pur- poses of administration from the jurisdiction of the county authority and form counties by themselves in which the municipal authority acts as the county authority.^ 1. Tlie municipal horougJi, — The old borough organization has been completely remodelled and made uniform for the entire country by the Municipal Cor- porations Act of 1835. This act was passed after a most thorough investigation had been made of the conditions of municipal boroughs and provided a form of organization which was imposed upon all localities desiring to become municipal boroughs. At the pres- ent time the Crown may, by order in council at the request of the voters of any place, confer upon them the privileges which attach to the municipal organiza- tion. The old principle remains the same, that is, that the borough is a corporation of quite limited powers — powers which generally relate simply to local affairs. The borough organization is hardly ever made use of by the central administration as an agency for the pur- poses of general administration. Thus the whole care of the city poor remains in the hands of the guardians of the poor and is not attended to by the municipal 1 Review of Remews, May, 1893, 404. * Local-Government Act of 1888, sec. 31, Third Schedule. 254 LOCAL ADMINISTRATION. council. The same is true of the school administration. Where there are any public schools they are adminis- tered by the school board, which is elected in the school district, formed by the municipal borough, in the same way in which the school board is elected in the rural parishes. The work of the borough organization is therefore confined almost altogether to the administra- tion of its property and to the execution of the various special powers which Parliament may have conferred upon the borough as the result of either special acts or of general acts conferring particular powers upon all boroughs. These acts cover such a wide field that the work of the municipal borough, notwithstanding that its powers are enumerated in the statutes, is very large in the domain of purely local matters — larger indeed than that of American municipal corporations. The law of 1835 and the various laws which have been passed since that year relating to the boroughs have been, for the most part, consolidated in the Con« solidated Municipal Corporations Act of 1882, which now governs the relations of the municipal boroughs. This act of 1882 simply continues the form of organi- zation adopted by the act of 1835. The borough au- thority provided by the act of 1835 was the council, the same authority that had been developed in the preceding history of the English municipality. The council was then made to consist of the mayor, alder- men, and councillors. The councillors are elected by the burgesses, L e, the municipal members who possess the municipal franchise. This is obtained by the pay- ing of rates, and as rates are paid by occupiers as well as owners, every householder who has resided a certain time, to wit six months, within the municipality may LOCAL ADMINISTRATION IN ENGLAND, 255 vote. The decisions of the courts as to the meaning of householder or occupier are, however, such as to shut out mere lodgers from the franchise.^ The result is, that no one who has not a real permanent interest in the municipality is allowed to vote. Every municipal citizen is eligible for the position of councillor, as are also all persons non-resident who reside within fifteen miles and own property within the borough limits or pay a certain amount of rates.^ The term of office of municipal councillors is three years, one third of the councillors retiring every year.^ Municipal elections are conducted on the principle of the Australian bal- lot act, i, e, the ballot act of 1872, and voters must be registered.* The aldermen are one third in number of the councillors and are elected by the councillors, as a matter of fact, from their own number though this does not seem to be required by the law.^ Their term of office is longer, being for six years, one half their number retiring every third year.^ The mayor is elected by the town council, in fact though not neces- sarily by law from among the aldermen, and serves for the term of one year.^ The mayor and the retiring mayor are ex-officio justices of the peace.^ The mayor, who is merely a member of the council is the only member of the council who may receive any remunera- tion,9 notwithstanding that service as municipal officer ' Arnold, Municipal Corporations^ 3d edition, 83, citing L. R., 8 Q. B. D., 195 ; 46 L. T. R. (N. S.), 253 ; cf. Albert Shaw on ** Municipal Government in Great Britain," in Pol. Sci. Qu., IV., 199 et seq. ' Municipal Corporations Act 1882, sec. 11. ' Jbid.y sec. 13. * Ibid. , sees. 50 et seq. * Ibid.y sec. 14 ; Arnold, op. cit., 70. « Municipal Corporations Act 1882, sec. 14. * Ibid.^ sec. 155. ' Ibid., sec. 15. ' Ibid.^ sec. 15. 256 LOCAL ADMLNLSTRATLON. is obligatory in that quite a heavy fine is imposed upon refusal to serve/ Where the mayor is remunerated his remuneration is fixed in amount by the council. The borough council has entire charge of the whole of the municipal civil service. With hardly an excep- tion it appoints, directs, and removes all officers of the borough, and may establish such new offices as it thinks best to establish and fixes the salaries that are attached to them.^ Further it has complete control over the strictly mimlcipal administration, decides within the limits of the law what branches of adminis- tration shall be attended to by the borough {e, g, may decide to establish and maintain municipal gas-works, or means of communication within the limits of the borough such as tramways), fixes the amount of rates that are to be levied in order to support the municipal administration, and has the entire charge of the finan- cial administration of the borough.^ With the large grants of power affecting purely local matters there has been formed at the same time quite an extensive administrative control which is exercised by the cen- tral authorities at London over the borough officers and authorities. This administrative control is exer- cised for the most part by the treasury and the local- government board."* It will be seen from this descrip- tion of the position of the tow^n council that there has been no attempt made to distinguish between the de- liberative and the purely executive or administrative ^ Ibid., sees. 34 and 35. ^ Ibid., sees. 1 7-2 1. ^ Local Government and Taxation in the United Kingdom^ edited by J. Pro- byn, 280, 281. Most of these powers have been conferred by other aets than the act of 1882. ^Ibid., 282 and 283. LOCAL ADMINISTRATION IN ENGLAND. 257 functious discharged in the borough, but that all func- tions of purely local administration are attended to by the one authority, the borough council. There are no executive departments like those of the American city. In order more carefully to supervise the work of de- tailed administrative work the council usually divides itself into committees each of which has one or more of the administrative branches to attend to.^ Thus we find in all boroughs which still have charge of the police, the watch committee, which attends to the ad- ministration of the borough police.^ Under each of these committees there is a subordinate officer who is to carry out the commands and directions of the coun- <;il or its proper committee. Thus in the administra- tion of the police there is a superintendent of police.^ Finally in addition to being the strictly borough -authority the borough council is made by the public- health act of 1875 the sanitary authority and as such has the usual functions to discharge.* The borough is also the school district, and where there are public schools in the borough, which is often the case, there is established a school board which is separate and apart from the council and elected in the way provided for all school elections, i. e, by the rate-payers, provi- sion being made for minority representation in order to allow of the representation of an ecclesiastical mi- nority. Where, however, there are no public schools supported by the district, there is what, is called a school-attendance committee of the borough council, which is to see that the compulsory-education act is ' Municipal Corporations Act 1882, sec. 22. * Ibid., sees. 190-195. ^ Probyn, Local Government and Taxation, etc.^ 279. ^Ibid. 258 LOCAL ADMLNISTRATION. enforced. This school-attendance committee is ap- pointed in school districts, which are not at the same time municipal boroughs, by the guardians or by the local authority of an urban sanitary district.^ 2. The local-government district. — England was by an act of 1872 divided into sanitary districts which are now governed by the consolidated public-health act of 1875.^ Provision was made for rural sanitary districts and for urban sanitary districts. The former consist of such portions of the poor-law unions as have not been formed into urban sanitary districts ; the latter are found in the boroughs and in all aggregations of inhabitants which have been declared by the local- government board at London to be urban sanitary districts or local-government districts. Further various special acts have also formed into urban sanitary districts, under particular organizations, other portions of the country which are then called improvement act districts.^ As these are governed by charters peculiar to them, and as the borough has already been con- sidered, it only remains to speak of the local-govern- ment district under the consolidated public-health act of 1875. Each of these local-government or urban sanitary districts is governed by a local board of health elected by the rate-payers and owners of property according to the general system of plural voting which has been described in what was said in connection with the union.'^ The term of office of member of the board is three years, one third of the members retiring every year. Retiring members are, however, re- eligible. Such a board has veiy much the same ( ' Craik, The State and Education , 113. 2 jbid., 109. * Chalmers, op. cit., 108. ^ Ibid., iii. LOCAL ADMINISTRATION IN ENGLAND. 259 powers over tlie district that the borough council has over the borough. In the first place the board has almost complete control over the entire subordinate personnel of the service of the district ; in the second place it has to decide all matters of interest to the district, but does not in any case have charge of the police within the district, who are simply a part of the county police and under the charge of the county police authority. Like the municipal borough, the local-government district has competence only in really local matters. It has nothing to do with the general administration of the country except in so far as the sanitary administration may be considered a part of the general administration. Thus it has nothing to do with the administration of public charity which in the districts is, as in all other places, in the hands of the guardians of the poor, or with the administration of the public board schools, which are attended to by the parish organized as a school district. Its main powers have to do with the care of the streets, the beautifying of the town, and the preservation of the public health, which is its duty jpar excellence. Like the borough, the local-government district is often subject to a cen- tral administrative control. This, as in the case of the borough, affects the important acts connected with the financial administration and is so formed that, through its exercise, extravagance and unwisdom may be pre- vented. V. — Central administrative control. The central administrative control to which allusion has so often been made and which has resulted from the increase within recent years of local powers is exercised in the following ways : 26o LOCAL ADMINISTRATION. 1. Necessity of cenPral approval of local action. — In order that certain of the acts of the local authorities may be of force it is necessary that they be approved by the central government. Thus, while the local authorities very generally have the power of issuing ordinances of a police character for the regulation of certain local matters and of sanctioning them within certain limits, as a general thing such ordinances must be approved either by the privy council, the treasury, or the local-government board before they may be enforced. The same is true of several of the most im- portant acts connected with the local financial admin- istration. Thus as a general thing all local loans need the approval of the treasury or the local-government board, and where a borough is permitted by such acts as the artisans' dwelling-houses acts to enter into a large scheme of local improvements the confirmation of their decision to put the acts into operation is generally necessary. In this case, as in some other instances, the confirmation is to be made by the local-government board, but has no force until it has in its turn been approved by Parliament.^ 2. Central audit of accounts. — In almost all cases ex- cept that of the boroughs the accounts of the various local authorities are subject to a central audit and must for this purpose be sent in to the local-government board at London. For the purpose of auditing these "accounts the local-government board has divided the country into auditing districts to each of which there is attached a district auditor under the. control of the local-government board who has the right, subject to an appeal to the local-government board, to refuse ' Chalmers, op. cit., 156. LOCAL ADMLNISTRATION IN ENGLAND. 261 to allow to the officer who has been spending money an allowance for money which in his opinion has been spent contrary to the provisions of the laws.* Accounts in the boroughs, are not, however, subject to this central audit, but are audited by the borough auditors, two of whom are elected by the municipal citizens and one of whom is appointed by the mayor and is known as the mayor's- auditor.^ 3. Powers of convpuUion, — One of the reasons for the reform which has been made in the local-govern- ment system since 1834, was the desire to prevent any locality from escaping the burdens which were imposed upon it by the law, as the agent of the central admin- istration, and from so neglecting such matters as were of vital interest to the people of the localities as to en- danger their welfare. One of the characteristics of the central administrative control which was introduced as a result of the reform was therefore the grant of the power to the central administration to step in and force a negligent locality to perform the duties which were imposed upon it by the laws. This control is particu- larly strong in the poor-law administration, in the sanitary administration, and in the administration of public instruction. In the poor-law administration the local -government board has the power to lay down general rules of management which the boards of poor- law guardians are bound to observe, and to force the guardians to provide the necessary accommodation for the poor. In the sanitary administration the same body has the power to force the localities to do what it con- siders necessary for the preservation of the public ' Ibid., 156 and 157. * Municipal Corporations Act 1882. sees. 25 and 26. 262 LOCAL ADMINLSTRATION. health and in case of the refusal of the locality to obey, the local-government board has the right to appoint a temporary commission to do what is necessary and to raise the money expended by such commission by means of a rate to be levied on the rate-payers of the locality.^ So in the matter of education. If the educa- tion department, i, e, the committee of the privy council for education, believes that there is not suf- ficient accommodation for the children of a given locality in the private schools which come up to the govern- ment requirements, it has the right to order the election of a school board, which then has the right to levy taxes and borrow money for the support of the public schools, or board schools as they are called, which are estab- lished by such school board. If the locality refuses to take the necessary action, the education department has the right to proceed as in the case of bad sanitary con- ditions.^ As the borough organization proper does not, as has been said, attend to the poor-law or educational administration, and as in the case of the sanitary ad- ministration the borough council is the local authority, subject, like all local health boards, to the control of the local-government board at London, the central administration has through these powers of compulsion a pretty complete power -over the administration of those matters which affect the general welfare, whether attended to in the urban or rural districts. 4. Disciplinary powers over the local civil service, — Besides the powers relating directly to the conduct of the administration which have been mentioned, the local-government board at London has also the * Chalmers, op. cit., 121. * Ibid., 151^154. LOCAL ADMINISTRATION IN ENGLAND, 263 power of confirmation of almost all the appointments to subordinate positions in the civil service of the boards of poor-law guardians, and has the sole right to remove such subordinate officers. It was considered necessary to give to the central supervisory authority of the poor-law administration such strong powers of central control if it was to be hoped that any sort of order was to be got out of the chaos which had been the result of the uncontrolled exercise of the local powers possessed by the overseers of the poor and the justices of the peace under the old system/ 5. Grants in aid and central inspection. — In several cases the law provides for grants of money made either by the central government or by the county councils to the various local authorities in aid of an administra- tive service, e. g. the police. As these grants are made only after the particular service has been inspected by the central government, and certified by it to have at- tained the standard required by the law, the central administration may, by appealing to the self-interest of the localities, exercise a large control over them in the interest of administrative efficiency and uniformity. VI. — General characteristics. The general characteristics of the English system are the same as those of the system obtaining in the United States. That is the legislature enumerates the powers of the localities and itself exercises a great con- trol over their actions. One important difference is, however, to be found in the way in which thi« control is exercised. While in the United States all local legislation is subject to about the same rules of proce- ' IHd. 264 LOCAL ADMINISTRATION. dure as are in force for all legislation, i. e. local bills are submitted to the proper committees which may or may not, as they see fit, give a hearing to parties inter- ested, and are subjected to the regular number of read- ings, viz., three ; in England the absolute impossibility of the exercise by the legislature of any effective con- trol over private and local legislation through the pro- cedure adopted for ordinary legislation has led the English Parliament to develop a special procedure which must be followed in all cases of local legislation and to the insistence through the adoption of certain acts known as " clauses acts " upon the insertion in all special and local bills of certain important conditions. Further the rules of procedure adopted require that all parties interested in the passage of such bills shall have notice of them and that all the bills themselves shall be examined most thoroughly before particular committees, on which examination counsel are heard and witnesses examined. Finally in many cases local bills have to be approved by the local -government board at London or some other central authority. The development of this system has led to the forma- tion of a special class in the legal profession who are known as parliamentary barristers, and whose sole oc- cupation is the representation of parties before the parliamentary committees appointed for the purpose of examining local and private bills.^ The only other points in which the English system differs essentially from that adopted in the United States are: the more concentrated character of the local organization {e, g, in the county and borough) ; * For a good description of the methods pursued see De Franqueville, Le P ar lenient et le Gouvernement Briianniques , vol. III., chap, xxxviii. LOCAL ADMINISTRATION IN ENGLAND. 265 the greater strengtli of the central administrative con- trol which has been rendered necessary by the posses- sion by the localities of rather larger powers than those possessed by the United States localities, though it must be remembered that the^same principle of the enumeration in the statutes of loc^l powers, which is in force in the United States, is iri force in England ; and the greater number and more confused condition of the local areas. While in America the attempt has been made, and with generally great success, to confer almost all powers of local administration upon the county and town or some division of the town such as the school district, in England there is little coincidence of areas. Almost each branch of administration has its own area and in many cases its own administrative organization. The tendency is, however, towards a simplification of these conditions. It is to be noticed that the system whose outline has been given, does not apply to the new county of London established by the act of 1888, whose organization differs considerably in details from that possessed by the ordinary English county ; nor to the City of London, which is formally governed now very much as it was during the middle ages, and in such a peculiar way that little profit may be derived from a study of its institutions. CHAPTER VI. THE FRENCH SYSTEM OF LOCAL ADMINISTRATION. /. — The continental method in general. The continental method of providing for the partici- pation of the localities in the work of administration is quite different from the English method. In the first place the whole work of administration is divided into central administrative vrork which is to be attended to in the local districts by officers regarded as central ^officers, and into local administrative work imposed upon the local municipal corporations and attended to by them largely in accordance with ' their own ideas and through their own officers, who are in many cases separate and distinct from the representatives of the central administration in the local districts, although largely subject to the control of the central officers, In this system local power is given by the legislature by ^eneraj/grant, but its exercise is subject to centra istrative control. The legislature has never a tempted to enumerate the duties of the locaLcorpora tions with the same minuteness as in England and in the United States. The statutes simply lay down the general principles of local administration, leaving to the local corporations to carry them out in their de- tails. The legislature simply says that the local cor- 266 •e THE FRENCH SYSTEM. 267 porations are to attend to local affairs or tliat tlie prin- cipal authority in a given distnct, which is at the same time a corporation, is to control by its decisions the affairs of the particular locality. What " local affairs " means is to be derived from a perusal of the laws with the object of finding what the legislature has said shall be attended to by the central administration. X All that in the nature of things may be called adminis-r tration and can be attended to by the localities and. has not been put into the hands of one of the central! authorities is then regarded as local in character. The; local municipal corporations are not therefore, as inj the United States, authorities of enumerated powers, but have the right to exercise all such powers as they wish to exercise, and in the manner they see fit to adopt, provided they do not violate the letter or the; spirit of the law. But they are subject to a central administrative control which is to prevent them from encroaching upon the competence of the central gov- ernment and in many cases from acting extravagantly: or unwisely. X In accordance with pure theory such a system of territorial distribution of administrative functions necessitates the existence of two separate sets of authorities, one for the central administrative and one fcr the local administrative work. The administrative [istricts for the purposes of central administration may not be the same as the districts of the municipal corporations. Seldom, however, do we find the pure theory carried to its logical results. Central authorities are often, both in France and Germany, called upon to attend to local matters at the same time that they are attending to central matters and vice 26S LOCAL ADMINISTRATION, verm. But in almost all cases there is a clear distinc- tion between the two spheres of local and central action even when one authority acts in both spheres. The central control over such an authority will differ according as it is attending to central or local busi- ness. The origin of this general system is found in the feudal system which was adopted more completely on the continent than in England and in accordance with which local autonomy received the fullest recognition.^ //. — History of the French system of local administration. 1. Ujp to the revolution. — The territorial unity of the French state was attained many years ago. Thfi^great vassals, who under a weak monarchy might have developed into independent princes, and whose -do- mains might then have formed separate common- wealths,! were suppressed by the kings and their lands became provinces of the kingdom of FranceJ Most matters of administration, which during the feudal regime had been attended to by the vassals, became a part of the royal administration and were attended to J by the royal officers who were subject to a strong cen- tral control. These were the intendants, who date from the time of Richelieu and Louis XIII, and whose work was performed in the provinces or generalities as they were sometimes called,^ and the council of the king at the centre which directed all their actions and heard appeals, taken by individuals aggrieved, from their decisions.^ . The great centralization of govern- ^ Cf. Stengel, Organisation der Preussischen Verwaltung, i8 and 19. * Aucoc, op. cit., I., 150, 151 ; Dethan, L' Organisation des Consdls GMi' raux, 4. • Aucoc, I., 127. THE FRENCH SYSTEM. 269 ment under the absolute monarchy left little room for any important local authorities ; though we do find] even in the times of the most extreme centralization] that there were in certain of the provinces, called jpays ; cf'etats and occupying a privileged position, local as-! semblies having more or less control over the actions | of the intendants ; and also that in some of the largest • of the cities the people had more or less well-defined | rights to elect their municipal officers, rights, however, | of which the king was endeavoring in the interest of i centralized government to deprive them/ The at- tempt made by the government of. Louis XVI just before the revolution to introduce into all parts of the kingdom provincial assemblies modelled on the as- semblies of the pays cfetats failed ; ^ and when the revolution came in 1789 it found a most highly centralized system of administration — a system which hardly recognized the local districts as anything more than administrative circumscriptions, possessing few if any corporate powers. In these districts most matters of administration were attended to by officers either appointed and removed by the king in his pleasure, or else subject to a strict central control. The system which the revolution received as a legacy from the absolute monarchy it made few radical changes in. 2. The revolution, — The aim of the revolution was social and political rather than administrative reform. The revolution destroyed the social system on which the absolute monarchy rested and introduced the political principle that the people should have a larger ' Dareste de la Chavanne, Histoire de V Administration en France, Chap. VI. ^ Dethap, oi). cit., 6 et seq. 270 LOCAL ADMINISTRATION. influence in the management of the government, but it did little more in the way of permanent administrative reform than to make the system more symmetrical than it had been before. The reason why no greater change was made in the general character of the administra- tive system was that the revolution really aimed at the same end that had been before the eyes of the absolute monarchy. This end was the crushing out of feudalism, the taking away from the privileged classes those semi- political and social privileges and exemptions which had been the cause of so many of the miseries of the absolute monarchy, but for which the absolute monarchy was responsible only in so far as it had allowed them to continue to exist, after the duties which had been originally associated with them had been assumed by the Crown, and after the expenses which their performance necessitated had been imposed upon the tax-payers. The cause of the dissatisfaction of the people with the absolute monarchy is ^to be found not so much in the character of the government which it gave the people as in the fact that its progress in the desired direction of abolition of feudal privileges seemed almost to have ceased. Therefore we find that the chief reforms of the revolution were social and, to a degree, political but not administrative. The cele- brated night of the fourth of August, 1789, saw the abolition at one time of about all that was left of the feudal regime, while the exemption of the privileged classes from taxation was done away with by the new and proportional system of taxation formulated and enacted by the revolutionary leaders in the con- stituent assembly. After the constituent assembly had thus cleared away the debris of the feudal system it would have been suicidal for it to estab- THE FRENCH SYSTEM. 271 lisli any system of administration in which large rights of local government were given to the people of the localities. For the people, as a whole, were so utterly incapacitated for political work, through long administrative and governmental tutelage, that it is im- probable that they could have succeeded in governing themselves well. At first it is true there was a slight attempt in the direction of decentralization, but this, as might have been expected, was unsuccessful and led to disorganization and inefficient government, as indeed did all attempts at reorganization until the government of the directory when Napoleon came into power.^ 3. The Napoleonic legislation, — Napoleon is to France what the Norman kings are to England. He moulded; the form of her local institutions. The laws and de- ' crees which were passed during the period of his control of the government have, it is true, received during this century most important modifications, but the main principles of the present system of local administration are even now to be found in them. Napoleon was satisfied that the social principles of the revolution could be adhered to only through the establishment of \ a most centralized system of administration and govern- \ ment, by means of which the impulse to action should \ come from the centre and which should be controlled by those who were in sympathy with the new order of ' things. Since Napoleon's time, however, there has been great progress in the direction of decentralization. This began with the government of the restoration and reached its climax in the communes act of 1884^; and * Aucoc, I., 151-3 ; Dethan, i6 et seq. * Cf. Ducrocq, Droit Administratif, g5 et seq. The laws which did most in the way of decentralization are those of June 22, 1833; March 21, 1831; July 18, 1866; August 10, 1871; April 5, 1884; and the decrees of March 25, 1852; and April 13, 1 86 1. 272 LOCAL ADMINLSTRATION. lias consisted in the recognition of the possession by the localities, or at least the most important of the localities, of juristic personality and that there belongs to them a sphere of action of their own in which the central administration is to interfere but little. But notwithstanding the decentralization which has been going on, the French system of administration retains even at the present time quite enough of the old Na- poleonic principles to make it, as compared with our own, a system which from the administrative point of view is quite centralized. ///. — The department. The entire country is divided into departments, each of which is an administrative district for many matters of central concern and is at the same time a municipal corporation with its own affairs to attend to and its own officers to attend to many of these affairs.^ 1. ^riie prefect, — In each of these departments is placed an officer called the prefect, who is appoin ted and removed by the President of the republic on the proposition of the minister of the interior.'^ He receives a large salary, and, from the nature of his position, is obliged to devote his entire time to his work.^ The prefect is thus a professional officer in that his work is his profession, but the laws do not require any special qualifications, the position being regarded as a purely political one, in the filling of which the President shall be allowed a wide discretion.^ The prefect is at the ^ Aucoc, I., 205. ^ L. 2^pluvi6se, an VIII, art, 2. This is the great Napoleonic administrative code. ^ Cf. Decree Dec. 23, 1872. ^ Block, Diclionnaire, etc., 975, sec. 23. THE FRENCH SYSTEM. 273 same time the representative in the department of the central government and the executive officer of the purely local administration of the department/ That is he is a central and a local officer. / , As a central of- ficer he is the subordinate .of all the ministers of the Ji central departments at Paris. He is to see that all the 1^ laws and decrees and central instructions sent out by the ministers are put into operation.^ He appoints and dismisses a vast number of officers employed in the ad- ministrative services of the central government which need attention in the department. Among these of- ficers are many who in the United States would be appointed directly by the heads of departments, e, g, he has to appoint all the wardens of the prisons, the less important postmasters and the letter carriers, the less important police officers, supernumeraries in the telegraph service which is a part of the post office, similar officers in the service of the direct and indirect taxes, highway overseers, teachers in the primary schools, etc., etc.^ He has also a wide power of direc-* tion and control over the acts of all these officers and may remove them from office.'^ He has a large police ordinance power where the matters to be regulated are of such a character as to need uniform regulation for the entire department or for several communes therein. s This, power of ordinance is, however, the delegated ordinance power, as his ordinances must always be based upon some statutory provision in order to have any force.^ The prefect also represents the central government in the courts whenever it sues or is sued.^ ' Aucoc, I., 155. ■* Ibid., sec. 15 and authorities cited. * Aucoc, I., 157. - 5 L^ April 5, 1884, art. 99. * Block, Dictionnaire, 753, sec. 20. ' Aucoc, I., 159. ' L. 28 pluvidse, fl« Vlil, art. 4. 274 LOCAL ADMLNLSTRATLON. \ Finally, as agent of the central government, the prefect exercises a large control over the local administration hof the communes within the department.^ l^In the second place the prefect is a local ojfidcer. He p^ is the executive officer of the local administration of the department. He appoints all the officers in the departmental service.^ He has charge of the financial administration of the department, issuing all orders of payment on the department treasury.^ He directs the execution of all departmental public vrorks.* He draws up the departmental budget or estimate of ex- penses and receipts and represents the department before the courts.^ As executive of the departmental municipal corporation the prefect is to execute the de« cisions and resolutions of the general council which finally determines how the affairs of the department shall be managed. As representative of the central \ government, however, the prefect is subject to the ^ direction and control of the central departments at Paris. 2. The Gowndl of the pi^efecture. — By the side of the prefect is placed a council called the council of the prefecture whose members are appointed and dismissed by the President of the republic, are salaried, and may not follow any other occupation.^ They are thus pro- fessional in character. This body is at the same time an administrative council and an administrative court. j . As an administrative council the council of the pre- fecture is called upon in many instances to advise the prefect. But while the prefect is thus bound in many * Block, Dictionnaire, 756, art. 45. * Aucoc, I., 254. 'Aucoc, I., 158, 254. 5 L. Aug. 10, 1871. ' L. Aug. 10, 1871, art. 65. * L. June 21, 1865, arts. 2 and 3. THE FRENCH SYSTEM. 275 cases to ask tlie advice of the council, he is never obliged to act in accordance with the advice so ob- l tained/ This is in accordance vrith the French princi- ple, which has already been alluded to, by which it is hoped to obtain a concentrated responsibility for every administrative act and at the same time to make it cer- tain that the most important acts will not be performed except after proper deliberation. In addition to acting as a council of advice the council of the prefecture is in one or two cases to act independently of the prefect. Thus the commune may not undertake a lawsuit with- 1 out first obtaining the consent of the council of the ' prefecture.'^ 3. Departmental commission, — Dp to 1871 the pre- fect acted in his capacity as executive of the depart- mental municipal corporation subject to no permanent local control. He had, it is true, to execute the deci- sions of the general council of the department, but as this met usually only twice a year his actions as de- partmental executive were not subject to any effective control on the part of the departmental authorities. * The law of August 10, 1871, which is to a large ex- tent a code for the administration of the department, formed an authority of a more permanent character than the general council, which was not only to conj trol the prefect in his administration of departmental affairs, but was also to perform some of the local duties of the prefect. The institution was modelled on a similar one in Belgium.^ This is the departmen- tal commission. This body is composed of from four to seven members and on it all sections of the depart- *Aw?oc, I., 163. ^ Ibid, 'Dethan, oj). cit, ch. I., p. 51. 276 LOCAL ADMLNLSTRATION. ment shall, as far as possible, be represented/ Its members are elected by the general council of the de- partment,^ receive no salary, and may follow other occupations.^ It is thus a distinctively popular au- thority. It meets once a month regularly and may meet as often as is necessary.* {\t% main duty is to control the administration of depSI1;mental interests by the prefect) A Thus it presents to the general coun- cil its views ^ tite- prefect's estimates^r'departmental expenses.^' It also examines the accdnnts^f the pre- fect who has to lay before it evefymonth all his orders of payment and his vouchers; ana it makes such ob- servations on them as it sees fit.*! It makes an inven- tory of the property of the department. Its consent is necessary to the making of all important contracts for the department by the prefect and to the bringing and defending of suits to which the department is a party.^ This control over the administration of de- partmental affairs by the prefect is its most important duty, but in addition thereto it has in several cases an actual power of decision in administrative matters most of which were, before the law of 1871, decided by the prefect. Thus it determines the order of prior- ity of departmental public works, and fixes the manner of placing departmental loans when these matters have not been attended to by the departmental general council.^ It has a series of duties to perform relative to the highways, aids in the assessment of the land tax, and appoints the members of commissions attending to works of a semi-public character which have been ^ L. Aug. lo, 1871, arts. 69, 70. "^ Ibid., art. 7q, sec. 2. ^Ibid. ^Ibid., art 78. ^ Ibid., art. 75. ' Ibid., ait. 54. ^ Ibid., zxl. ni, ^ Ibid.^ixri.'ii. THE FRENCH SYSTEM. 277 subsidized by tlie department/ Finally the general council may delegate its powers to the departmental commission.^ ) These are the executive officers in the department, and, so far as the purely departmental administration is concerned, they act mainly by executing the resolu- tions and decisions of the general council which really determines the character of the departmental adminis- tration. 4. The gmmiOfl council. — The general council is com- posed of members elected by the people of the depart- ment, one member being elected in each canton of the department.^ The canton is little more than a judicial and election district. The general council is elected by universal suffrage.* All electors twenty-five years of age are eligible who have resided in a commune of the department six months.^ One quarter of the mem- bers of the council may be non-resident provided they have an interest in the department which is evidenced by the fact of paying direct taxes or the possession of landed property therein.^ Generally all professional officers of the government are ineligible.^ Finally no one may be a member of two general councils.^ The term of office is six years, one half of the members of the council retiring every third year.^ The President of the republic may however, dissolve the general council by special decree.'° In case he does so he must notify the legislature and must provide for an election for the foui-th Sunday after the issue of the decree." ^ L. Aug. 10, 1871 passim. « L. Aug. 10, 1871, art. 17, sec. 2. « Ibid., art. 77. ' Ibid,, art. 8. ' L. Aug. 10, 1871, art. 4, ^ Ibid., art. 9. * Ibid., art. 5 ; L. April 5, 1884, art. 14. ^ /bid., art. 21. * L. Aug. 10, 1871, art. 6 ; L. April 15, 1884, art. 14. »» Ibid., art. 35. " Ibid., art. 36. 278 LOCAL ADMINLSTRATl^N. This body meets ordinarily twice a year/ but may be called together on any other occasion by decree of the President of the republic or on the demand of two thirds of the members.^ The general council elects its own officers ^ and makes its own rules/ with the excep- tion that the law fixes the quorum at a majority of its members, and provides that the ayes and the noes must be called at the request of one sixth of its mem- bers, and that the president of the council decides in case of a tie vote.^ Its meetings finally are public* and its members receive no salary.^ \ The powers and duties of this body relate in the main to the affairs of the department. It does, how- ever, have a few powers relative to matters which are general in character or to those of the communes within the department. The law which fixes its powers and duties is in form an exception to the general rule adopted upon the continent for the determination of the share of the localities in the work of administration. Nowhere in it do we find a general grant of the powers of local government to the general council. On the contrary, the law enumerates the cases in which the general council may act in the domains of both local and general administration. But in the domain of local administration the enumerated powers embrace such a wide range of subjects that what is in form an exception is not so in reality. For the law puts into the hands of the general council the control of all department property, finances, and taxes, of high- ways except the state roads, department public works of all kinds, public charity so far as that is a branch of ' Ibid., art. 23. ^ Ibid,, art. 25. ^ Ibid., art. 30. ' Ibid., art. 75. ' Ibid,, art. 24. ^ j^^^^ ^rt. 26. « Ibid., art. 28. THE FRENCH SYSTEM. 279 public administration, the apportionment of the quota, which the department has to pay of the direct state taxes, among the various distiicts of the department, the determination of election districts, and finally gives to the general council quite a large supervision over the administration of the communes within the depart- ment.* ^ It will be seen from this enumeration that, so far as the administration of affairs affecting the depart- ment interests alone is concerned, the general council has about as wide powers as if the law had simply granted to the general council, as the communes act of 1884 has granted to the communes, the general power of local government. Finally the enumeration con- tains instances of the grant of powers which relate not to the department administi'ation but to the general state administration, as well as instances of supervisory powers over the administration of the communes within the department. But the general council to which these wide powers are granted has been subjected to quite an important administrative control. In one or two instances, it is true, the law has provided for a special legislative control, in that it says that if the general council wishes to exceed the limits of the taxing power which have been fixed by the general budgetary law that is passed annually, or of the borrow- ing power, as that is fixed by the law governing the department administration, a special law will be neces- sary. These are however the only instances in which the law has made express mention of any application for legislative authorization and the very mention of the fact would seem to indicate that such a practice is quite unusual in Prance. There are, however, many * L. Aug. 10, 1871, arts. 37 and 46. 28o LOCAL ADMINISTRATION. instances enumerated in the law in which the action of the general council, in order to be valid, needs the approval of the central administration. ' Thus where the general council desires to sell or change the use of buildings which are used for the purposes of general state administration, as e, g. court houses, normal schools, prefects' offices, prisons, or garrison buildings of the gendarmerie (police), which all belong to the depart- ment corporation, it is necessary that the resolution of the general council ordering such sale or change of use receive the approval of the central administration^ which is generally given by a decree of the President of the republic* Again the resolutions of the general . council, deciding what the department shall pay of the expense of public works constructed by the central administration but of peculiar advantage to the de- partment, and as to the imposition or increase by the communes of octroi taxes, need central administrative approval, which is usually given in the same w-ay.^ Finally all powers granted to the council by laws other than the law of August 10, 1871, are subject to the same central approval. While in all these- cases the central administratioti has the right to veto the resolution of the general council on the ground ^ that it is unwise, still the resolution ^of the general^ council is valid if the central administration does not^ exercise this right of veto. In certain rare cases the . resolutions of the general council need, before they are valid and capable of execution, the express approval of- the central administration. The most important of these is the budget. Though the general council has in a general way control over the appropriations of the ' L. Aug. lo, 1871, art. 48. ' Ibid. THE FRENCH SYSTEM. 281 department, still the budget may not be executed until it has been expressly approved by a decree of the President of the republic. A The purpose of this pro- vision is to offer a means of preventing the general council from neglecting to provide for the expenses vrhich have been imposed by law upon the department, ^. e. department charges as they vrbuld be called in the United States. If the general council should so neg- lect or refuse, the President of the republic has the right, when the budget is presented to him, to insert in it the necessary appropriations and to provide for the levying of a special tax if that is necessary. These obligatory expenses or department charges are those necessitated by the management of those services for which the law makes it the duty of the general council to provide. They are contained in article 60 of the law of August 10, 1871 ; and among them may be mentioned the provision of the necessary buildings for the officers in the department, e, g, the prefect, the under-prefect, the department board of education, which is a council of advice to the prefect, the garrison buildings of the gendarmeriej the court houses, etc., etc. It seems, however, that the President dan make no changes in the budget other thait to make provision for such expenses. Of course if the President finds on examining the budget that the e^neral council has levied taxes or has resolved to borrow money in excess of the limits imposed by the law he may annul the decision or resolution thus violating the law, on the ground that the general council has exceeded its juris- diction. In fact the President may annul any resolu- tion of the general council which is in excess of its powers. But the decree of the President thus annul- 282 LOCAL ADMLNLSTRATION. ling the resolution of the general council is not really a veto of its act, but is simply a formal statement that it has overstepped the bounds of its competence and that its action is therefore invalid. If the ultimate decision as to the validity of the acts of the general council lay in the hands of the President of the repub-t^ lie this central control might degenerate into an abso- lute veto of all the acts of the general council.. But it would seem in accordance with the general principles of the French administrative law that an appeal may be taken from the decision of the President to the highest of the administrative courts, viz, the council of state, which has the right to declare the act of the President null and void in case it should deem that he had declared not within its competence a decision of the general council which really was within its com- petence.^ Thus the final decision as to the jurisdiction or competence of the general council is made by the administrative courts and not by the active administra- tion itself. From this slight review of the powers and duties of the general council and of its relation to the central administration and government it will be seen that the initiation of almost all measures affecting the purely x local affairs of the department is in the hands of the | general council whose decisions may, in case it exceeds * the powers granted to it by the law, be annulled by the central administration, subject to the control of the administrative courts. The general council may not, however, make such use of its powers as to neglect the ^ See on this point decisions of the council of state of Nov. 19, 1866, reported in Dalloz, Recueil P^riodique, 1866, Part III., 106; also Aug. 8, 1872, Ibid^ 1872, Part III., 49 ; Nov. 19, 1880, Ibid, 1880, Part III., 34. THE FRENCH SYSTEM. 283 duties which have been imposed upon it by the law, and where the central administration is interested, as well as the department, a power of control is given to the central administration over the acts of the general council by means of which it may annul them on the ground of their inexpediency, in which case there is no appeal to the administrative courts. The statement which is sometimes made that the central government has an absolute veto over the acts of the general coun- cil is therefore not correct. On the contrary the gen- eral council has really more control over the affairs of the department than has the county authority over the affairs of the county in the United States or even in England. .' The great difference between the American / and the French system is that while we give very few powers to the county corporation and make it neces- sary for the people of the county to have continual resort to the legislature for the grant of some special power whose exercise is necessary to their welfare, but seldom resort to any administrative control over the acts of the county authority, the French prefer to grant to the department authority very wide local powers but subject their exercise to a central administrative control, in order to provide some means to prevent the general council from exceeding its powers and from acting in such a way as to prejudice the interests of the state at large, i IV. — The district. Each department is divided into arrondissements or districts, in each of which are placed an under-prefect and a district council^ The under-prefect is^appointed ' L. 2%pluvi6se an VIII, art. 8. 284 LOCAL ADMINISTRATION. and dismissed by the President of the republic, and, like the prefect, is a professional officer. He is the subordinate of the prefect, his main duties being to carry out in the district the orders which he may re- ceive from the prefect, though in some cases the law grants him discretionary powers/ There has been some talk of abolishing this office altogether on the ground of its uselessness, but two reasons have so far prevented this from being done. One of them is that the office of under-prefect is valuable as a means of educating men for the position of prefect. The other, more of a practical political character, is that the office is valuable as a means of patronage to the central gov- ernment. The council of the district is elected in the same manner as the general council of the department.^ Its functions are, however, quite unimportant and re- late only to the central administration, as the district, not being a municipal corporation,^ has really no affairs of its own to attend to. The most important function of the council of the district is to apportion .> among the communes in the district the quota of the direct apportioned taxes of the central government which has been apportioned to it by the general council.4 Both the general council and the council of the dis- trict are regarded as councils of advice to the central government, which is often obliged by law to ask their advice on matters of general administration affecting at the same time the interests of either the department or the district, though, in accordance with the French ' E. g. see decree of April 13, 1861 and law of May 4, 1864. 8 L. July 30, 1874. ' L. May 10, 1838. * L. May 10, 1838, arts. 40, 43, 45-7. THE FRENCH SYSTEM, 285 rule to which allusion has been made, it is never ob- liged to follow the advice so given/ In addition to giving its advice when asked, both the general council . and the council of the district have the right to express their wishes to the central administration in regard to matters of peculiar interest to the section which they represent, but care is taken to prevent this power from degenerating into a mere expression of political views, as it is expressly provided in the law that expressions of the general or district council on political matters are beyond its competence, and may be declared null and void by the central administration.^ V, — The commune, 1. History.— l^elow the department district and canton we find the commune as the lowest administrative unit. The commune is either rural or urban, but the French- law makes no formal distinction in organization between the two, both being governed by the same law, viz, the law of April 5, 1884. \ While the department is an artificial creation of the revolutionary period, the com- mune is a natural growth. Before the revolution we find that there were, as a result of social and political conditions, two kinds of local communities in France, viz, the urban communes and the rural communes. i( In the former were an officer, called by different names but performing for the most part executive functions, and a deliberative council. In the rural communes, and even in some of the cities, a general meeting of the inhabitants was often found together with a series of executive officers.^ \ A decree of 1702 established in ^ L. Aug. 10, 1871, art. 50 ; L. May 10, 1838, art. 4. ' L. Aug. 10, 1871, art. 51 ; L. May 10, 1838, art. 44. ' Cf. Dareste de la Chavanne, op. cit., I., 201. 286 LOCAL ADMINLSTRATION. each of these rural communes an officer called a syndic, who was to act to a large extent under the supervision of the intendant of the generality or province in which the commune was situated/ y' The acts of all these authorities were subject, just before the revolution, to very strict central control, which was one of the results of the administrative centralization of the absolute monarchy. In 1789 the constituent assembly decided to efface all distinction in administrative organization between the rural and the urban districls^^ and provided for the formation of about 44,000 communes.^ Dif- ferent experiments at organization were made in the period between 1790 and the year "VIII or 1800 when the Napoleonic legislation was adopted. By this legislation there were placed in each commune a mayor and a municipal council,'* the former attending to executive business, both that relating to the com- mune, which was a municipal corporation, and that af- fecting the state as a whole, and the latter attending simply to local business. By this Napoleonic legislar tion, both the mayor and the members of the municipal council wer^ appointed and could be removed by the central administration, while the decisions of the mu- nicipal council, even though they affected simply the local affairs of the commune, were in all cases subject to the approval of the central administration.^ Since the overthrow of the empire there has been an almost continuous tendency to decentralize this extremely cen- tralized system. In 1831 the municipal council became elective,^ and by a gradual process the mayor has be- ' Aucoc, op. cit., I., 170. * L. 28 pluvidse^ an VIII. ' L. Dec. 22, 1789 — Jan. 8, 1790, art. 7. ^ Ducrocq, op. cit., I. ,217 et seg- 'Aucoc, op. cit.^ I., 171. ' L. March 24, 1831. THE FRENCH SYSTEM. 287 come elected by the municipal council in all the com- munes of France.^ But up to about 1884 no actual power of decision was given to the municipal council, whose resolutions were in most cases subject to central administrative approval.^ The law of April 5, 1884, has made a most radical change in this respect by pro- viding that the decisions of the municipal council are absolutely final except in those cases in which the law has specially provided for central administrative ap- proval.'^ \ 2. The mayor, — In each commune at the present time are to be found a mayor and several deputies who are to assist him in the performance of his duties, all elected by the municipal council. In both cases the choice of the council is limited to its members. ; They serve for the term of the council, but may be suspended by the prefect of the department for one month, by the minister of the interior for three months, and may be removed by the President of the republic. Removal makes the person removed ineligible for the period of one year.* Further, the prefect has quite a large con- trol over the mayor in that the law provides that if the mayor refuses to do an act which he is obliged by law to do, the prefect may step in and, after demand made to the mayor, proceed to do the act himself or may have the act done by a special appointee.^ The mayor and his deputies are unsalaried and are not profes- sional officers like the prefect. Their official expenses are to be paid however.^ * Boeuf, Droit Administraiif, 276 citing L. March 28, 1882. ' Ducrocq, op. cit.^ I., 219 et seq. * Boeuf, op. cit., 265. * L. April 5, 1884, arts. 75-86. * Ibid., art. 85. « Ibid., art. 74. 288 LOCAL ADMINISTRATION. Like the prefect, the mayor is at the same time the agent of the central administration in the commune and is the representative and the executive of the com- munal municipal corporation. As an officer of the cen- tral administration he is in most cases under the supervision of the prefect. Among his duties as such central officer may be mentioned his duty to keep a register of vital statistics. As the French law expresses it, he is an officer of the etat civil. As such he also solemnizes all marriages.^ He is also an officer of v^hat is known as the judicial police and, as such, has the power to file informations in purely petty offences and may act as public prosecutor in the smaller places.^ He has to publish and execute all the laws and decrees within the commune, makes up the election lists, the census tables for the recruiting of the army, publishes the assessment rolls, etc,^ etc} Finally the mayor han a large power of local police. He has quite a large power of ordinance, a power which, like the similar power of the prefect, is always based upon some ex- press provision, of law. The power of ordinance granted by the statutes is, however, quite a general one. He has the right to issue such ordinances as maybe neces- sary to maintain good order, public security and health. He has also a large power of issuing orders of individual and not general application, as e, g, to fix the building line for particular edifices, to grant building permits, to remove nuisances, and so on.-* All such ordinances and orders are sanctioned b/ the penal code,^ which ^ Boeuf, op. cit., 281. ' Code d^ Instruction Criminelle, arts, ii, 48-50, and 53. * Boeuf, op. cit., 287 ; Ducrocq, op, cif., I;, 197. ■* L. April 5, 1884, art. 97 ; Boeuf, op. cit. 289 et seq. * Art. 471, sec. 15. THE FRENCH SYSTEM, 289 punishes the violation of all legal ordinances and orders by a fine. An instance of the control which the prefect has over the acts of the mayor when the latter is acting as an officer of the general state administra- tion, is to be found in the case of these ordinances and orders which may be repealed by the prefect within a/"^ month after their issue.^ \ As the executive officer of the communal municipal cor- poration the mayqr_liMJLhe^appointmenti)f^ of the ^ communal officers,'^ the only important(exceptions being found in the case of the local constabulary who are, to a large extent, central officers and under central control, the teachers, the forest guards, and the communal treas- urer. Further the mayor is to attend to the detailed administration of air local property and is to supervise the different administrative services which are attended to by the commune. Thus in the financial administra- tion of the commune the mayor draws up the budget of receipts and expenses of the commune, orders all expenses to be paid, has the detailed management of the revenue and property of the commune, executes its contracts and supervises its accounts and its public institutions.^ But in all these matters it must be remembered that the mayor is simply to execute the/^\ decisions of the municipal council, which has the final determination of all matters of communal interest. 3. TTie municipal council,— The municipal council is elected by universal manhood suffrage. Electors must have resided for six months Vithin the commune or have paid direct taxes there. Electors must be regis- tered in order to be able to vote/ The rules in re- * L. April 5, 1884, art. 95. * L. April 5, 1884, art. 90. */Hd., art. 102. '*L. April 5, 1884, art. 14. 19 290 LOrAZ ' ADMINISTRA TION. gard to eligibility are similar to those in force for the general council of the department/ The term of office ^The necessary concrete meas- ures were sketched by Dr. Gneist of the University of Berlin, and one of the greatest of modern public lawyers, in his little book entitled Dw Kreisordnung, In this work Dr. Gneist referred, as had Stein before him, to the English system of local administration which they both knew so well and admired so much. After a long discussion the plans advocated by Gneist were for the most part incorporated into the law of Dec. 13, 1872, commonly known as the Kreisordnung, The adoption of these plans was largely due to Prince Bismarck, who believed strongly in local autonomy and self -administration, and who supported the ideas advocated by Gneist in the face of the opposition of the general public and of that of his colleagues in the ministry and the greater part of the government officials who were loth to give up any of the powers which they possessed in the organization founded by Hardenberg.^ In addition to the Kreisordming several other laws were passed in the course of the next ten years, all either carrying the reform further, or modify- ing details which experience had shown to be faulty. X The definite ends which this reform has had in view are: First. The extension of the sphere of local au- tonomy. Second. The introduction of a judicial control over the actions of administrative officers in the hope of ' As to the position and the influence of Prince Bismarck see Gneist in Revue CMdrale,etc., Oct., 1886; Preussen im Bundestag, IV., 22, cited in Z*^/. Sci. Qu., IV.. 661. LOCAL ADMINISTRATION IN PRUSSIA. 301 preventing a recurrence of the prostitution of the pow- ers of the administration in the interest of party or social faction. Third. The introduction of a non-professional or lay element into the administration of central as well as of local matters in the hope of increasing the political capacity of the people.^ A II. — Provincial authorities. In accordance with continental ideas as to the terri- torial distribution of administrative functions two spheres of administrative action are recognized by the law : the one, central ; the other, local. ' For the pur- poses of the central administration which needs atten- tion in the localities, the country is divided into admin- istrative circumscriptions called provinces, government districts, circles, etc.^ in which are officers under the control of the heads of the various executive depart- ments at Berlin. 'For the purposes of local government certain municipal or public corporations have grown up which have their own officers and their own property separate and apart from that of the central ^ government. At the time of the reform in many in- stances the boundaries of the administrative circum- scriptions for the purposes of central administration were not identical with those of the various public corporations, e. g. the boundaries of the administrative provinces were not the same as those of the public corporations bearing the same name. In most cases, further, the authorities for the purposes of central ad- ministration were not the same as those of the public corporations. The reform of 1872 has endeavored to ^ De Grais, Handbuch der Verfassung und Verwaltung, etc, 1883, 51. 302 LOCAL ADMLNLSTRATION. simplify matters. It has in the first place adopted the old divisions, viz.^ the provinces, districts, and circles, but it has added a new division, viz.^ the justice of the peace division {Amtshezirlc) ; in the second place it has in almost all instances insisted upon the coincidence of the boundaries of the corresponding areas. Thus at the present time in almost all cases the area of the ad- ministrative province is the same as that of the pro- vincial corporation. In the third place the central and local authorities within the same area have in most cases been consolidated. In the province, however, the attempts at such consolidation were unsuccessful. ^ Therefore the provincial authorities or rather the administrative authorities in the province must be distinguished as Behorden der Allegemeineii Landes- verwaltung^ i. e. as authorities for central administra- tion, and as O^gane der Provinzialverbdnde, i, e, as authorities for local provincial administration. Among the authorities for the general or central ad- ministration of the country are to be mentioned : ' 1. The governor (Oherprdsident). — This officer is appointed and dismissed by the king at his pleasure, He is a member of what is called the higher adminis trative service,^ and is thus a purely professional officer. He is the agent in the province of the central govern ment, i, e. of all the executive departments at Berlin ; the permanent representative of the ministers ; and from his decision as such representative there is no appeal, since the ministers are regarded as acting through him. As such agent he must report to all the ministers every year, and execute any orders which they may send to him, is entrusted with considerable ^ Infra, II., p. 49. LOCAL ADMINISTRATION IN PRUSSIA. 303 discretion of action in times of extraordinary danger from war or other causes/ exercises either in first or /v^second, but in all cases in last instance very large powers of supervision over the actions of subordinate officers and authorities, as well as over the local ad- ministration of various important municipal corpora- tions, such as the province, the circle, and certain of the larger cities,^ and appoints the justices of the peace {Amtsvorsteher).^ He attends to the administration of all business which interests the entire province or more than one government district. For example, he issues a long series of police ordinances * ; supervises the churches ^ ; transacts all business which relates to an entire army corps ^; acts as president of a series of I provincial councils or boards, such as the provincial) council, the provincial school board, and the provincial' board of health.^ ^^ 2. The provincial council. — Up to 1875, when the late reform was introduced into the provincial adminis- tration, the governor, himself a professional officer, transacted the business of the central government in the province unchecked in the performance of his duties by the control of any popular authority. * But one of the main objects sought by the reform was the introduction of a lay element into the administration ' Instruction of December 31, 1825 ; cf. Stengel, Organisation der PreussU schen Verwaltung, 317, 318. ^ Allgemeine Landesverwaltungsgesetz of July 30, 1883, sec. ip, hereafter cited SLsA.L. V. G.; Kreisordnung of 1872, sec. 177, hereafter cited as K. O.j Zustandigkeiisgesetz of July 26, 1880, sec. 7, hereafter cited as Z. G. » K. O., sees. 56-58. , .. * With the consent of the provincial council, of which later. A. L. V. G., sees. 137, 139. 5 Loening, Deutsches Verwaltungsrecht, p. 83, with authorities cited, « Ibid. ' Instruction of 1825, sec. 3 ; A. L. V. G., sec. 10. 304 LOCAL ADMLNISTRATION. of affairs affecting the country as a whole. This end was attained by the formation of the provincial^^uncil. This body consists of the governor, as its president, a single councillor of a professional character, and five lay councillors, citizens of the province, i, e. ordinary citizens without any professional education and un- salaried. The professional councillor is appointed by the minister of the interior, must be qualified for the hiofher administrative service, and his term of office is practically for life. The lay members of the council are appointed by the provincial committee — a popular body — ^from among the citizens of the province eligible for member of the provincial diet. Their term of office is six years.^ In the organization of this body, it will be noticed, the lay element predominates. Pro- vision is made for professional members in the hope that by reason of their knowledge and experience the business of the council may be more wisely and more quickly transacted. The duties of the council are of three classes. Jn the first place it exercises a control over the actions of the provincial governor, e, g, its consent is necessary for all his ordinances.^ ^In the second place it acts as an in- stance of appeal from certain decisions of inferior authorities, such as the district committee.^ sin the third place it decides as an executive authority certain administrative matters ; e, g. the number, time, and duration of certain markets,* and questions relative to the construction of certain roads.^ Of these duties, ^ A. L. V. G., sees. 10-12. » A. L. V. G., sec. 137 ; Z. G., sec. 51. 3 A. L. V. G.,sec. 121. *Z. G., sec. 127. ^ Stengel, Organisation der Preussischen Verwaliung^ 435. LOCAL ADMINLSTRATLON IN FRUSSLA. 305 those of the first class are by far the most important, as it is through their performance that a popular lay control is exercised over the bureaucratic professional administration of central matters in the province. N ^.1^ The government hoard and president. — Each prov- ince is divided into from two to six government dis- tricts. At the head of each of these districts is a board called the government (^JRegierung). This is composed exclusively of professional officers, viz., the president, several division chiefs, councillors, and assistants. They are all appointed by the central government at Berlin and, like the governors of the provinces, belong to the higher administrative service.^ The competence of the governments originally (and at th-e time of the late reform) embraced all matters of administration that could be attended to at all by terri- torially limited authorities and in so far as special au- thorities had not been established to attend to them.^ This last was not often the case. Separate authorities had indeed been established for the administration of the customs, but this was the most important instance.^ X In general all matters of central administration attended to in the localities were attended to by the governments. /They were by far the most important administrative \autborities in the entire Prussian system. \ They acted under the direction of the central authorities at Berlin or that of the representatives of the central authorities in the provinces, viz.^ the provincial governors. Finally in addition to the ^actual administrative duties which they performed, they exercised a control over the vari- ous authonties of the central administration immedi- * Ordinance of Dec. 26, 1808 . * Stengel, Worterbuch, etc., II., 972. 3o6 LOCAL ADMINISTRATION. ately subordinated to them and over the various local public corporations. With the introduction of the reform measures, how- ever, the importance of the governments has somewhat decreased, owing to the establishment of other more popular authorities and to the modification in their own organization which thereby became necessary, vin the " district committee" a lay authority was established in the government district ^ similar to the provincial council in the province. This innovation reduced the government so much in importance that it was felt advisable to abolish its most important division, that of the interior, which had charge of the police administra- tion (^. e. the issue of police ordinances and orders) and of the supervision of the inferior authorities both of the central and of the local administration. All of these duties were assigned either to the government president, acting alone or under the control of the dis- trict committee, or to the district committee. For all other matters within the competence of the government the old organization is the same as before : i, e. in school, tax, and church matters the government still acts as a board of which the government president is the presiding officer, h f The government president thus occupies a double position. ' He is either an officer with power of inde- pendent action, or*he is the presiding officer of a board in which lies the real power of decision. But wherever he has independent powers of action, he is subjejited to the control of the lay district conimittee, of which he is at the same time the president. The result is an extremely complicated organization — which, however,. ' A. L. V. G.. sec. 153. LOCAL ADMINISTRATION IN PRUSSIA, 307 answers the purposes sought by the reform. The matters left in the competence of the existing divisions of the government are matters which are not thought to be proper subjects for popular administration. The manaofement of the domains of the state, of the central taxes and of education (^. e, of its pedagogical side) and the control over the churches are not regarded as subjects in which a popular control would lead to ad- vantageous results ; but the management of police matters and the supervision of the subordinate authori- ties, particularly of the local corporations, are matters in which it is particularly desirable that the people should have some influence. 4.\ The district committee. — This body is formed of the government president as its presiding officer, and six councillors.' Two of these are professional in char- acter, are app ointpd for IjfA by the kin ^, and must be qualified, the one for the j udicial service, the other for the higher ad ministrati ve service. One of these pro- fessional councillors is, at the time of his appointment, designated as the deputy of the government president in his capacity as the presiding officer of the commit- tee ; he is called the administrative court director, and presides over the deliberations of the committee when it acts as an administrative court.^ The other four members are lay members and are elected by the pro- vincial committee from among the inhabitants of the district, not professional officers. It will be noticed that the character of this committee is the same as that of the provincial council. It is distinctively a lay au- thority, although it has a sufficient number of profes- » A. L. v. G., sec. 28. ' Infra, II., p. 253. •308 LOCAL ADMINISTRATION. sional members to ensure the rapid and wise discharge of business. XWhile the district committee in the district sub- serves the same purpose as the provincial council in the province, its competence is more extended. Its main function is to exercise a control over the actions of the government president, so that the administration may be made popular in character.^ Thus all police ordi- nances, the issue of which is the chief function of the government president when acting alone, need the consent of the district committee."^ But this committee has positive functions also. In many cases it acts in first instance ; e. g, it supervises inferior authorities and municipal corporations, especially the cities. It has also an appellate jurisdiction. This is of two kinds, one administrative and the other judicial. In what cases it acts as an administrative authority, and in what cases it acts as a judicial body, is decided by the stat- utes.^ The general principle would seem to be that I where rights of individuals are involved, the committee \ acts as a judicial body. In its double capacity of au- thority and court, its jurisdiction is very large ; and its establishment has done much to weaken the import- ance of the "government," which was absolutely pro- fessional in character, and to establish the desired lay control over the administration. ^ bi^ The provincial diet. — Matters of purely local inter- est to the province — matters which the law recognizes as falling within the domain of provincial autonomy — are attended to by a second class of authorities, viz.^ the organs of the provincial municipal corporation ' Z. G., sec. 13. 2 A. L. v. G., sec. 139. 'Stengel, Organisation^ etc., 330, 415, LOCAL ADMINISTRATION IN PRUSSIA. 309 {Organe des ProvinziaVverbandes). These authorities are the direct successors of the old feudal estates of the provinces which have come down from the middle ages. \The original Stein-Hardenberg legislation did little to develop them ; it was felt that the feudal ele- ments were too strong in them to permit of any healthy- development. After Hardenberg's death they received increased powers. They were so organized, however, as to put their entire control into the hands of the large owners of land. The main purpose of the re- form movement has been so to reorganize them that they might be entrusted with a large part of the work which was then being done by the central administra- tion and which was susceptible of decentralization. The main point in this reorganization is the provision for the representation of all classes of the people / within the province. The old system of representa- tion was completely done away with and the present provincial diet was established.^ ^ This is composed of representatives from each of the circles into which the province is divided, the number , of representatives de- pending upon the population of the circles.^ These representatives are elected by the circle diets of the rural circles and the municipal authorities of the urban circles, i. e. cities of 25^000 or more inhabitants.^ This method of election assures the larger cities a fair repre- sentation in the provincial diet ; and the method of electing members of the diets of the rural circles, is such as to guarantee to the smaller cities and the other social interests a voice in the selection of the members of these diets and, as a result, representation in the • Provinzial-Ordnung oi June 29, 1875, hereafter cited as P. O. ^P. O., sees. 9, 10. * Ibid.y sees. 14, 15. 310 LOCAL ADMINISTRATION. provincial diet also. The term of office of tlie mem- bers of the provincial diet is six years ; and the quali- fications of eligibility are German citizenship, residence in the province or the possession of landed property therein for at least a year, good moral character and solvency/ ■The diet is called together by the Crown once in two years and as many other times as its business makes its meetings necessary.^ The governor of the province attends to this matter for the Crown and, as the royal representative, opens its sessions and has the right to speak therein.^ The functions of this body relate almost exclusively to the purely local matters of the provincial adminis- tration. It decides what local services shall be carried on by the provincial corporation in addition to those which have been positively devolved upon it by law, and it raises the funds necessary for the support of the provincial administration.* v^ Its decisions, says Prof. Gneist, relate to the construction and maintenance of roads ; the granting of moneys for the construction and maintenance of other means of public communi- cations ; agricultural improvements ; the maintenance of state alms-houses, lunatic asylums, asylums for the deaf and dumb and blind and others, artistic collections, museums and other like institutions. . . . The provincial diet votes the provincial budget, creates salaried provincial offices and deliberates upon provincial by-laws.^ k These by-laws, it must be added, simply regulate minor points in the organization of the province which have not been already fixed by law, such as the details regarding the elections. They must be approved by '^ Ibid., sec. 17. ^ Ibid., sec. 25. ^Ibid.,^c. 26. '^ Ibid., sees. 34-44. * Revue GM&ale du Droit et des Sciences Politiques, Oct., 1886, 262. { LOCAL ADMINISTRA TION IN PR USSIA. 3 1 j the Crown.^ In addition to the duties imposed upon the province by law, the diet may assume such other -duties as it sees fit which are not in direct opposition to the purposes of provincial organization.^ Finally the diet elects all the officers who attend to the local- administration of the province.^ From this description of its duties it will be seent that the provincial diet determines largely what the and special legislation are 'avoided. In place of an in*esponsible legislative control, which in the United States has shown itself so incapable of preventing the extravagance of localities that in many cases the power LOCAL ADMINISTRA TION IN PR USSIA. 337 of the legislature to permit local action lias been cur tailed by the constitutions, is to be found a control exercised by responsible authorities — authorities which have a certain permanence and are well able to judge whether a given action will be really hurtful to a locality or not. At the same time the greater freedom from central interference guaranteed to the localities by this system is well calculated to encourage the growth of local pride and responsibility. 2. Obligatory unpaid service. — Different, however, from the French system the Prussian system of local government attempts by the adoption of the principle of unpaid obligatory service (it will be remembered that while in many cases service in the French local offices is unpaid, it is almost never obligatory) to make the local administration largely non-professional in character. This, it was felt, was peculiarly necessary in Prussia on account of the existence of a most thor- oughly bureaucratic service. This idea is adopted from England, and consciously adopted from Eng- land at a time when both forms of the English system of local government are showing a tendency to aban- don it. 3. Subjection of local admmiistration to judicial con- ^o?.— Under the system in vogue up to the time of the late reform the administration in its local as well as its central instances was almost a law unto itself. It was not only relieved from all central legislative control, but also from all central judicial control except in so far as its acts might be considered as being regulated by the principles of the private law. The experience of Prussia during the first half of this century was, however, such as to prove that if the administration 338 LOCAL ADMINISTRATION, was to be satisfactory to the individual and regardful of his rights, some soii; of judicial control over it should be established. This, as has been stated, was one of the main ends of the reform movement of 1872. By the establishment of this judicial control, ^ Prussia has taken a great stride in advance, and may now be re- garded as occupying, so far as her local administration is concerned, a position similar to that which has for so long a time been occupied by both England and the United States, where the actions of the local authori- ties are subjected to the strictest sort of judicial controL ^ For the details in regard to it see infra, II., p. 243, ' COMPARATIVE ADMINISTRATIVE LAW BY FRANK J. GOODNOW II LEGAL RELATIONS BOOK IV. THE LAW OF OFFICERS. CHAPTER I. OFFICES AND OFFICERS. /. — Definition. 1. In general. — By an office is understood a right or duty conferred or imposed by law on a person or several persons to act in the execution and application of the law.^ By officers are meant those persons on whom an office has been conferred or imposed. The word authority is also sometimes used to designate the person or persons holding an office. It is to be noticed that an office may exist without the officer. Thus we often hear of an office being vacant. On the other hand there may be an officer who has no office. Thus an officer who has been pensioned or retired and who is not discharging official functions may be subjected to many of the duties resulting from the existence of the official relation. This is particularly true of Germany.^ * Stengel, Lehrbuch des Deutschen Verwaltungsrecht, 158 ; Mechem, Law of Public Offices and Officers, I. ^ Supra, I., p. 94. VOL. II — I T t THE LAW OF OFFICERS. 2. Distinction between office and employment. — The conceptions of office and officer are conceptions of public and not of private law. The government may, how- ever, enter into private legal relations as a result of which it may have employees as well as officers. It therefore becomes necessary to distinguish as far as may be an officer from an employee. It has been said that the term office "embraces the idea of tenure, duration, emolument, and duties." ^ It is not, however, necessary in order that a position under the govern- ment be an office that it have all of these character- istics. Thus it seems certain that the idea of emolument is not at all necessary to the conception of an office.^ There are numerous positions which are offices and to which no salary or emolument of any sort is attached. But it does seem to be necessary, in order that a governmental position be an office, that it possess more than one of the characteristics mentioned. The mere fact that a position is under the government and con- cerns the public will not constitute it an office ; it may be an employment. Thus one who receives no certifi- cate of appointment, takes no oath, has no term or tenure of office, discharges no duties and exercises no powers conferred upon him directly by law, but simply performs such duties as are required of him by the persons employing him and whose responsibility is limited to them, is not an officer, and does not hold an office, although he is employed by public officers and is engaged about public work.' Applying these prin- ciples, deputies not obliged to take the oath required » United States v. Hartwell, 6 Wallace, 385. « See State v. Stanley, 66 N. C, 59. * Olmstead v. the Mayor, etc., 42 N. Y. Super., Ct. 487. OFFICES AND OFFICERS. 3 of officers, and not provided for by law, have been held to be mere agents or employees of their principals vrho may be officers.^ But deputies provided for by law with fixed powers and duties and giving bonds in accordance with the law are officers, e, g. deputy post- masters, marshals, and sheriffs.^ While there are other criteria which may be of use in distinguishing an office from an employment, the most important canon of distinction is that, while an employment may be created by contract as a result of the fact that the government may be in some cases a subject of private law, an office can never be created by contract, but finds its source and its limitations in some act of governmental power. Thus where the legislature created by an act of legislation the position of public printer the court held that such position was an office and that the public printer was an officer and there- fore might not assign the position ^ ; but on the other hand where the legislature provided that the public printing was to be "contracted for," the court held that the public printer was a contractor and not an officer.'* It will be noticed from these cases that the conception of an office does not depend in any way upon the character of the duties to be performed. It makes no difference whether these duties carry with them the power of compulsion or not, or whether or not the holder of the office is permanently occupied in *Kavanaugh v. State, 41 Ala., 399 ; see also U. S. v. Smith, 124 U. S., 525 ; Throop V. Langdon, 40 Mich., 673 ; and note on page 180 of 72 American Decisions. ' Dunlop V. Munroe, 7 Cranch, 242 ; U. S. v. Martin, 17 Fed. Rep., 150 ; Eastman v. Curtis, 4 Vt., 616. » Ellis V. State, 4 Ind., i. * Brown v. Turner, 70 N. C, 93 ; see also Detroit Free Press Co. v. State Auditors, 47 Mich., 135. 4 THE LA W OF OFFICERS. tlie discharge of his duties, or whether or not the duties are discretionary/ All that seems to be neces- sary is that the duties discharged be discharged in the interest of the government, and that the right to dis- charge them be based on some provision of law and not upon a contract.^ The duties themselves may be quite similar to or even identical in character with the duties discharged by private persons. Thus a clerk in an executive department of the United States or of the commonwealths may be an officer.^ It has been held that even a sailmaker appointed under a warrant under the hand of the secretary of the navy and the seal of the department was an officer. In many cases it. is exceedingly difficult to distinguish between^ an officer and an employee, the reason being that the courts in their decisions have been influenced by some peculiar statutory provision. Thus where statutes have imposed criminal penalties on "officers" for the violation of their duties the courts often give a much narrower construction to the word officer than they do in other cases. Take e, g. the case of United States v, Gerrriaine.'' Here the court lays down the rule that only those persons in the service of the national government are officers who are appointed by the President, the head of a department, or the courts, and that all persons not so appointed are mere employees to whom the rules affecting the official relation do not apply.s This rule is not, however, to be reconciled * State V. Salle, 41 Mo., 31 ; Carth, 479. 2 State V. Stanley, 66 N. C, 59. 3 Ex parte Smith, 2 Cranch, C. C, 693 ; U. S. v. Hartwell, 6 Wallace, 385 ; Vaughn v. English, 8 Cal., 39. ""gg U. S., 508. ^ See also for an example of the influence which peculiar statutes have upon the decisions of the courts the cases of United States v. Mouat, 124 U. S., 303 ; OFFICES AND OFFICERS. 5 with some of the other decisions of the Supreme Court as e. g. that of United States v. Hartwell^ which holds that a person whose appointment though not made by a head of a department has been approved by him, is an officer.^ Finally it is to be noticed that the defini- tion that has been given of the terms office and officer does not regard as officers those persons who discharge in the main what are called legislative functions, ^. e. those persons who are members of the legislature both national and commonwealth. This is in accordance with the rule laid down by the Senate of the United States acting as a court of impeachment. In 1799 it decided that a senator was not a civil officer of the United States because he was a member of the legisla- ture.^ But it is to be noticed also that the action of the Senate on this point is not altogether consistent inasmuch as in January, 1864, it decided that an oath prescribed for civil officers by the act of July 2, 1862, must be taken by senators also * ; and that the deci- sions of several of the courts would seem to hold that for the purpose of disqualifying for office the position of member of the legislature both national and com- monwealth is an office.^ United States v. Hendee, Ibid., 309, which hold that a paymaster's clerk who was not appointed by the head of the department and whose position was not provided for by law is not an officer for the purpose of mileage, but is one for the purpose of longevity pay ; and also the case of Ex parte Reed, 100 U. S., 13. ' Supra, II., p. 2. ^ For the decisions of the courts as to the various positions under the govern- ment both national and commonwealth, see Mechem, Law of Offices and Officers, 12 et seq. 3 See Blount's Trial. * Cyciopcedia of Political Science, etc., sub verbo impeachment, II., 481. * People V. Common Council, 77 N. Y., 503 ; see also Morrel v. Haines, 2 N. H., 246 ; but see Wortley v. Barrett, 63 N. C, 199, 201. 6 THE LAW OF OFFICERS. 11. — Methods of organizing offices. Official authorities differ in the way in which they are organized. Thus an authority may consist of one person or of more than one person. In the first place while one person may not do all the work of the office, while he may be assisted in the performance of his duties by many subordinates and deputies who in their turn may be officers, still all the actions of the office are to be done under his direction and on his responsi- bility. A system of offices founded on this principle may be called a single-headed system.^ In the second plan of organizing an official authority the office is held by more than one person, by several persons who exercise their powers and perform their duties by means of resolutions of the entire body. In the mak- ing of these resolutions each one of the holders of the office has legally as much influence as any of the others with perhaps the exception of the president of the board, who may have the right of giving the casting vote in case of a tie vote.^ A system in which the official authorities are organized as boards is called the collegial or board system. Each of these plans of or- ganizing offices has its advantages and disadvantages. The single-headed system is well fitted for the dis- charge of duties which require energy and rapidity of action and for which it is advisable to have a fixed and well-defined responsibility; while the board system may be adopted with advantage in all those branches of administration in which carefulness of deliberation, * The Germans call such a system a bureaucratic system, while the equivalent French term is systeme unitaire. ^ See for the rules of law in the United States in regard to boards, Mechem, op. cit., sees. 571-81. OFFICES AND OFFICERS. 7 regard for all sides of the case and impartial decision are particularly desired. Boards are therefore specially suited for the consideration of those matters in which a controversy between individuals involving a question of law is to be decided, i. e. for judicial authorities, while the single-headed system is usually the best for purely executive and administrative matters. It is, however, to be noticed that for many administrative matters the board system is to be preferred for the reasons already stated. This is particularly true of the case of the assessment of property for the purposes of taxation. For these reasons we find that seldom does any system of administrative organization adopt either one of these methods of official constitution to the ex- clusion of the other, but that the attempt is usually made to combine the two forms in such a way as to produce the best results. In France, however, the attempt has been made to devise one method of official constitution which will combine individual respon- sibility and administrative efficiency with mature deliberation and impartial decision. Here we find by the side of each of the important administrative officers who alone have the actual power of decision and alone are to assume the full responsibility for the acts of the office, a council whose advice must be asked in the more important matters within the jurisdiction of the office but whose advice need never be followed.^ ///. — Honorary and professional officers. Officers, like authorities, may be variously classified.^ In many states there is an important distinction be- * Supra, I., pp. 86, III. ' See Mechem, op. cit., 9. 8 THE LA W OF OFFICERS, tween professional and honorary officer^.^ Tlie first are those officers who devote their entire time to the discharge of public functions, have no other occupa- tion^ are indeed by law allowed to have no other occupation, and receive a sufficiently large compensa- tion to enable them to live without resorting to other means. From such officers is often required by law a professional training or more or less knowledge of the affairs to which their official duties relate. In some states this requirement is carried so far as to necessitate the pursuit by the candidates for official positions of a regu- lar course of instruction in administrative matters. A system of administration which relies entirely or mainly upon professional officers is termed a bureaucratic sys- tem In it we find a profession of office-holding and an official class which attends to the administration of public affairs. Honorary officers on the other hand do not devote their entire time to their public duties, but at the same time that they are holding public office may be carrying on some other regular business and find their main means of support in such business or in their private means, since they receive a compensa- tion insufficient . to support them. In such a system the office is regarded not as a means of livelihood but as an honor, and candidates for the office are not required to possess any particular knowledge of the duties of the office they may desire to hold. A system of administration which relies entirely or mainly upon such honorary non-professional officers is called a self- government system. In it we find no, or a very small ^ In the United States the nearest legal distinction to this is that between lucrative and honorary offices, the idea of professional offices being very dim. See State V. Stanley, 66 N. C, 59 ; Hoke v. Henderson, 4 Devereux, Law N. C, I, 21. OFFICES AND OFFICERS. 9 class of, professional officers. In it government is ad- ministered by members of society who temporarily discharge public functions. There probably never was in the history of the world an absolutely bureaucratic administrative system, though that existing in Prussia from 1720 to 1808 and that established in France in 1800 were pretty nearly completely bureaucratic. On the other hand there has seldom been seen a complete self-government system of administration, though that of England in the eighteenth century was about as near one as can well be imagined. All existing sys- tems of administration are formed of a combination of professional and honorary officers, one of the classes predominating and giving the general tone to the system. In the United States the self-government system predominates ; in Europe on the contrary the bureaucratic, especially on the continent, though Eng- land is not far behind the continent, and Prussia, and indeed Germany as a whole, has of late been trying to increase the realm of the self-government system.^ In those countries in which the official system is most scientifically organized we find a clear distinction made between these two classes of officers. This is true of Germany where different rules govern the relations of each class of officers. In other countries, however, while the two classes of officers do really exist, no great attempt is made in the law to distinguish be- tween them. Such for example is the case in the United States. Each of these two systems, viz,^ the bureaucratic and the self-government system, has its advantages. The special knowledge and training possessed by profes- ^ Supra, I., p. 301. lo THE LA W OF OFFICERS. sional officers, their generally long terms of office, and the fact that they are occupied exclusively in the management of public business make it almost certain that, when well organized, they will act more wisely and efficiently than officers who have no special knowl- edge of their duties, who serve for short terms, and are expected to devote only a part of their time to the public service ; and make it extremely probable that the cost of such a system will, notwithstanding the fact that salaries are paid, be less than the cost of self-government administration. For these reasons the popular remedy for administrative evils is bureaucracy; and if wise, efficient, and economical administration were the only or even the main end sought in the organization of the administrative system it might be admitted without question that the popular remedy was the proper remedy. But it must never be lost sight of that good administration is only one, and that a minor, end of an administrative system. It must always be kept in mind that the prime end of all governmental systems should be the cultivation in the people of a vigorous political vitality, a patriotic loyalty and social solidarity. History shows that this end is not attained by a bureaucratic system. The experi- ence of every state which, to carry forward pressing reforms or to secure administrative efficiency, has adopted a bureaucratic system of administration goes to prove that bureaucracy is incompatible with civil liberty. The administrative history of France and Germany under the absolute monarchy is a striking example of this fact. The conferring of most of the important administrative powers upon professional officers deprives the citizens of the state generally, of OFFICES AND OFFICERS. ii the opportunity to accustom themselves to public ser- vice and to acquire political experience ; and finally destroys their ability to protect , their liberties in an orderly manner. They also lose interest in the govern- ment. They regard with indifference, if not with actual hatred, a government in which they have no participation. Finally the permanent exclusion of the citizens from participation in administration encour- ages within them the growth of class feeling, which is one of the greatest obstacles to successful govern- ment. Seldom, if ever, being obliged to consider public questions from any but the point of view of the class to which they belong; seldom, if ever, being called upon to consider the public effects of any measure, they fail to acquire that sense of collectivism whose cultivation is so necessary. If at the same time that they are shut out from participation in adminis- tration the people are allowed to participate in legisla- tion the result is even worse. For they carry with them into the legislative bodies the same narrow class feelings by which they are actuated in their private life. The legislature becomes the fighting ground for hostile social forces instead of being the representative of the collective interests of the whole people. A good example of the effect of a popular legislative assembly when combined with a bureaucratic adminis- tration is to be found in the administrative history of Prussia from 1822 to 1860.^ True socialism never makes a greater mistake that when it allies itself, as it is so apt to do, with bureaucratic administration. Bureaucratic administration has thus in all govern- ments most evil results but most particularly in ' See Supra^ I., 298 ; Political Science Quarterly, IV., p. 656 et seq. 12 THE LAW OF OFFICERS. popular governments where the people are allowed to participate in legislation. Its efficiency easily becomes tyranny ; its economy is dearly paid for by the loss of political capacity and the growth of social faction. What the bureaucratic system tends to destroy the self- government system tends to foster. The participation of numerous citizens in the work of administering gov- ernment not only tends to increase by the sure method of practice the political capacity of the people, but also causes them to regard the government as their own and finally brings them to consider public measures from a point of view other than that of their own social class, to consider what influence they will have on the community as a whole. The almost complete absence of social parties in England during the sway of the self-government system is a striking example of the influence of this system of administration. Of course reliance cannot be placed alone upon the ad- ministrative system to bring about these results. The admonitions of religious teaching and the influences of a lofty humanitarian philosophy have their part in the work to perform,^ but it should be recognized that the administrative system has an important influence in the conquest of human selfishness in the form of class tyranny. There are, however, some branches of administra- tion in which the radical defects of the system of pop- ular non-professional officers are very marked. The inherent weaknesses of the self-government system — its extravagance, its inefficiency, and the unwisdom of its actions — become so serious as to force the conclu- sion that in some branches self-government is impos- * Cf. Gneist, Das Englische Parlamcnt, Introduction. OFFICES AND OFFICERS. 13 sible. There are many positions in the municipal administration particularly — positions which are in- creasing in number with the increase of the duties of the administration — which require great technical knowledge, whose duties are so arduous as to occupy the entire time of the incumbents. Here it seems necessary to demand of the incumbents a professional training and to pay them salaries/ Bureaucracy is made necessary by the conditions of the case. The question is not whether we shall have a bureaucracy — for we must in the nature of things have it — but how we shall organize it so as to give it the best propor- tions possible and so as to avoid the evil results by which it is so generally attended. Especially must care be taken not to organize the bureaucracy on the principles which are applicable to the self-government system. If salaries are to be paid, professional knowl- edge and the devotion of the entire time of the officer to the work of the office should be required also, since the impossibility of such an officer's earning his living in any other way is the only reason why a salary should be paid. Long terms of office should take the place of the short terms of the self-government system. What should be a profession should not be allowed to degenerate into a trade. Finally the system should be so organized that the people from whom the govern- mental power comes and for whose benefit it is to be exercised, should have a control over the bureaucracy in order that the deliberate wishes of the community may have their expression in the action of the admin- istration. * Cf. President Eliot in the Forum, October, 1891, on " One Remedy for Mu- nicipal Mis-govemment " ; Gumplowicz, Das Oesterreickiscke Staaisrecht, 179, 180. CHAPTER IL THE FORMATION OF THE OFFICIAL RELATION. /. — Appointment or election. Of the various methods of forming the official rela- tion the two most important are appointment and elec- tion. There are, it is true, several others less important. Thus the official relation is sometimes formed by the drawing of lots as in the case of the jury ; often other things being equal the official relation is formed as a result of seniority and juniority. Thus in the French elections the two oldest and the two youngest electors present at the opening of the polls and able to read are the canvassers of elections.^ In other cases office is gained by inheritance. We find numerous exam- ples of this method among the offices of the royal household in England.' But this method is becoming rarer and rarer as time goes by. Originally the com- mon method of filling offices in the United States was an executive appointment. The only exception to this rule was to be found in the case of the town officers. Partisan use was early made of the power of appoint- ment in New York. Each new party that came into power felt that it was its right to fill all offices to ^L. May 5, 1884, art. 31. •Gncist, Das Englische Verwaltungsrecht, etc.^ 1884, 167. 14 FORMATION OF THE OFFICIAL RELATION. 15 which appointment might be made with its own ad- herents and to make places for them by the discharge of existing officers.* This habit was not confined to New York but afterwards made its way into the na- tional administration and thence spread to every one of the commonwealths. The evils resulting from such a practice led the people very generally to change the method of forming the official relation. Many of the offices were made elective. The movement con- tinued from 1825 to 1850 with the final result that almost all the important offices were filled by popular election both in the central commonwealth government and in the localities. Since 1850, however, there has been somewhat of a reaction in favor of the old method by executive appointment, the reason being found in the fact that the method by election did not have the beneficial results which were expected of it. No change in the original method of forming the official relation was made in the national administration, not because the same evils were not present, but because the method of appointment being provided by the national constitution could be changed only with very great difficulty. In all cases where the method of ap- pointment has been adopted the appointment is not necessarily to be made by the administrative chief, but in many cases by the heads of the executive de- partments, and in the localities by the chief local authorities.^ In both Prance and Germany the great majority of offices both central and local are filled by executive appointment, the only officers of importance who are » Gitterman, " New York Council of Appointment," Pol. Sci. Qu., VII., 80. * Supra, I., pp. 146, 243, 274. i6 THE LA W OF OFFICERS, elected being the members of tlie various local deliber- ative assemblies.* In England the original rule was to fill offices by appointment, but with the change in the system of local government many local authorities have become elective.^ The aims of these two methods of forming the official relation are quite different. The method of appointment aims at administrative harmony and efficiency. The method of election endeavors to ensure that popular control over the administration which is the fundamental principle of popular govern- ment. In order, however, that such a popular control may be exercised, the people must be in a position to judge of the merits of the respective candidates for office. They are undoubtedly in such a position in the rural districts where the feeling of neighborhood is strong. Here the people know the merits of the can- didates who present themselves for local office and are in a position to make a wise choice. When we come, however, to more complex conditions such as exist, for example, in the central commonwealth administration and in the municipalities where the feeling of neighbor- hood is not strong, and where it will be difficult, if not impossible, for the people to know much about the merits of the different candidates, it is useless to adopt the elective method in the hope that the people will by its means be able to exercise any appreciable con- trol over the administration. The only way in which the people may exercise such a permanent control over the administration is for them to elect only the most prominent officers of the government who are then to appoint to the subordinate offices. If a long list of ' Supra, I., pp. 84, 91, 302, 305. ^ Supra, I., p. 237. FORMATION OF THE OFFICIAL RELATION. 17 candidates is presented to the elector for his choice, if many of the offices to be filled by election are of a sub- ordinate or unimportant character, even the most intelligent voter is apt to become confused. Other reasons than the positive merits of the candidates are apt to influence his choice, and the result of the elec- tion is apt to be in accordance with the wishes of those few persons who have the time and the inclination to busy themselves with the conduct of public affairs, rather than in accordance with the wishes of the people. The elective method thus in many cases does not secure the popular control, in order to secure which it is adopted. It not only fails of its purpose but it has one or two serious positive defects. Through its means it is often the case that men of totally opposed views on vital questions are put into office, where, in order that the administration may be efficient, it is necessary that it be harmonious. The necessity for harmony in some matters is so great that it is attained but through the crooked and devious methods known to practical politics as "deals," "dickers," and "rings." Such methods are in reality attempts to obtain the harmony which is so necessary to efficient administration ; their great fault is that through them the popular control over the administration is destroyed and the responsi- bility for administrative action is diffused. For these branches of administration, ^. e, the central common- wealth administration and the municipal administra- tion, the method of forming the official relation should be by appointment if an efficient, harmonious, and re- sponsible administration under popular control is desired. This is the method which has been so success- fully adopted in the national administration. This is i8 THE LA W OF OFFICERS. also the method wliicli has been adopted by the most recent and important municipal charters in the United States/ Further the elective method of filling offices is in all instances unfitted for offices the efficient performance of whose duties requires the possession by the incum- bents of large professional or technical knowledge. Such offices are those of judge, law officer, civil engi- neer, etc.^ etc. The requirement of the possession by the candidate of certain degrees or certificates, which are supposed to evidence the necessary qualifications, is not really sufficient. For the people even if their choice is thus confined are here again not in a position to choose wisely. Popular inclination is too apt to be swayed by other than scientific reasons. Such a method may shut out absolute ignorance from office ; it will not, however, usually result in the choice of the best man for the office. //. — The law of elections in the United States^ The general rule is that the legislature may, in the absence of constitutional provision either granting or denying the power, pass reasonable regulations as to the method of holding elections.^ In the exercise of this power the legislatures have very generally provided for the registration of voters as a necessary prerequi- site to the casting of their votes. In two of the com- monwealths, however, registration laws have been ^ Supra, I., p. 2IO. ' The qualifications of voters are a matter rather of constitutional than of administrative law, and therefore will not be considered. For particulars see McCrary, The Law of Elections, 3d Ed., sees. I-2I. ^ Commonwealth v. McClelland, 83 Kentucky, 686. This power is expressly granted in many of the constitutions. Stimsou, op. cit., sec. 235. FORMATION OF THE OFFICIAL RELATION. 19 expressly forbidden, viz.^ Arkansas and Texas, while in two others the provisions of the constitution are such as to render them practically nugatory. These are Pennsylvania and West Virginia, where no person may be deprived of his right to vote by reason of not having registered.^ Such registration laws have been held to be reasonable regulations, and, as such, per- fectly constitutional ^ ; but a law which provides a method of voting by which it is impossible for an illit- erate person to vote is not reasonable, and is therefore unconstitutional.^ As a general thing, election regula- tions are directory rather than mandatory, and their violation, provided the will of the people is clearly ex- pressed, will not invalidate the election.* The general rules with regard to elections are : 1. The election must he regular. — Elections must always be held at the time and place appointed by the proper authority.^ This authority may be the consti- tution, a statute, or an administrative act.^ The action of the proper agency is necessary, and if the holding of the election is contingent upon the happening of some event, that event must have happened.^ 2. Necessity of notice. — Notice of the time of elec- tions does not seem to be necessary, even when ex- pressly required by statute, except where such notice is in the nature of things necessary in order that the voter may know that an election is to take place. Its * Stimson, op. cii., sec. 236. ' Commonwealth v. McClelland, 83 Kentucky, 686. 3 Rogers v. Jacobs, ii S. W. Rep., 513. * Trimmer v. Bomar, 20 S. C, 354. * Mechem, op. cit., sec. 170. ^ Brodhead v. Milwaukee, 19 Wis., 624; Brewer v. t)avis, 9 Humph. Tenn., 208. ' Stephens v. People, 8g 111., 337. 20 THE LA W OF OFFICERS, absence will not necessarily invalidate an election, even if it has been expressly required. Thus the failure to give notice of a general election, though required by law, will not invalidate the election/ But a special election would not be regarded as valid in case no notice of it was given.^ While notice of the time of elections is not always necessary, notice of the place of holding the election seems to be absolutely necessary ; indeed all enactments as to the place of elections are regarded as mandatory rather than directory. Failure to observe them will generally invalidate the election.^ It has been held, however, that in a case of an emergency the place may be reasonably changed provided notice is given.* 3. Method of voting (ballot). — As a general thing the vote must be by ballot.^ The word ballot originally meant a little ball by the casting of which it was at first proposed that the vote should be taken,^ but it has come to mean in public law a slip of paper, sometimes called a voting paper, on which the name of the candidate to be voted for is printed or written. As the main object of the ballot is a secret vote ^ the statutes regulating the ballot have in the course of time gone more and more into detail as to the form, appearance, and manner of folding the ballot, each statute endeavoring to remedy some defect ' People V. Hartwell, 12 Mich., 508 ; People v. Cowles, 13 N. Y., 350. * Secord v. Foutch, 44 Mich., 89 ; State v. Gloucester, 44 N. J. L., 137 ; Mechem, op. cit., sec. 176. 3 Melvin's Case, 68 Pa. St., 333. * Brodhead v. Milwaukee, 19 Wis., 624 ; Dale v. Irwin, 78 111., 170, 181 ; Farrington v. Turner, 53 Mich., 27 ; Knowles v. Yeates, 31 Cal., 82. ** Stimson, op. cit., sec. 231. * Theodore W. Dwight, on " Harrington," in Pol. Set. Qu., II., 16. ' Cf. Cooley, Constitutional Limitations, 6th Ed., 760. FORMATION OF THE OFFICIAL RELATION. 21 that had manifested itself, and by which the secrecy of the ballot was violated, until now the most common method of voting in the United States is by means of ballots absolutely uniform in appearance and size, hav- ing no marks upon them by means of which they may be distinguished one from the other when folded. These ballots are in many cases issued by officers of the government, and are printed at the expense of the government. A further result of the great desire for secrecy in voting is to be found in the fact that the courts in their decisions have aided the legislature, in stamping as an illegal ballot, and therefore as a ballot which may not be counted, any ballot which violates, in what at times seems only an unimportant point, the provisions of the statutes requiring secrecy.^ The only other rule of importance as to the ballot is that requir- ing that it shall express clearly the intent of the voter. This rule, however, the courts do not carry so far as to throw out ballots for trifling irregularities.^ In case the ballot is not clear on its face the best rule would seem to be that the courts may consider extrinsic evi- dence in explanation of it.^ The ballots, after they have been cast, are counted by officers called can- vassers, whose duties are usually ministerial in char- acter,* and who, after they have once acted, have exhausted their powers and are not allowed to change their decision except as ordered by the courts.^ 4. Wliat constitutes an election to office, — As a gen- eral thing a candidate is elected to office by a plurality ^ * Mechem, op. cit.^ sees. 192-4. * Ibid.y sees. 195-202. * Cooley, Constitutional Limitations, 6th Ed., 768 ; People v. Pease, 27 N. Y., 45. 84. ' Hadley V. Albany, 33 N. Y., 603. * Mechem, op. cit., see. 208. * Stimson, op. cit., see. 232. 22 THE LA W OF OFFICERS. of the legal ballots cast, even though a majority of legal voters have not voted.* In the leading case of People V. Clute it was held, that a majority of votes cast for an ineligible candidate, if the ineligibility vrere not notorious, invalidated the election ; that such votes were not to be regarded as merely illegal votes with the result that the candidate having the next highest number of votes would be elected. This seems to be the better rule in the United States.' ///. — The law of appointment. The courts have sometimes attempted to hold in the United States that as the act of appointment is in its nature an essentially executive act, the exercise of the appointing power by any other than an executive or administrative authority is unconstitutional in a state whose constitution provides for the separation of powers ^ ; but the difference as to the adoption in the constitutions of the various commonwealths of the principle of the separation of powers, and the different views held by the judges as to the meaning of the principle of the separation of powers when adopted have brought it about that this rule is not at all uni- versal.* As to what constitutes an appointment the best rule would seem to be that it consists in the choice by the appointing power of the person appointed 5; and is complete when the last act of the appointing power has been performed, as e, g, in the case where * People V. Clute, 50 N. Y., 451. ^ Mechem, op, cit., sec. 206. ^ State V. Denny, 118 Ind., 449 ; Evansville v. State, Ibid.^ 426 ; see also State V. Kennon, 7 Ohio St., 546, 560. ^ See Mayo v. State, 15 Md., 376 ; People v. Mahany, 13 Mich., 481 ; People V. Hurlburt, 24 Mich., 44, 63. " Johnston v. Wilson, 2 N. H., 202. FORMATION OF THE OFFICIAL RELATION, 23 the consent of some other authority than the one pro- posing the appointment is necessary, in the grant of the consent of that body/ Finally, in the absence of any statutory provision to the contrary, the completion of the appointment is not dependent upon the issue of any commission, which is merely evidence of the ap- pointment and is not the appointment itself.^ Thus if the commission has been issued to the wrong person it may be revoked and a commission granted to the proper person.^ It is not as yet well settled in what form the appointment is to be made, whether it must be made in writing or whether an oral appointment is sufficient/ But the power however exercised, once exercised, is exhausted and the appointing power may not revoke the appointment, provided of course that the term of the appointee is not in the discretion of the appointing officer, when of course the appointee might be removed from office, and provided that there has not been some mistake in the issue of the commis- sion.^ IV. — Acceptance of the office. While as a general thing no obligation to assume a professional office is imposed upon its citizens by any government,^ it is not unfrequently the case that the law compels the citizen to take an honorary office * State V. Barbour, 53 Conn., 76 ; Marbury v. Madison, i Cranch, 137. ' Ibid. ; Mechem, op. cit., sec. 117, ' Gulick V. New, 14 Ind., 93 ; State v. Capens, 37 La. Ann., 747. * Cf. People V. Murray, 70 N. Y., 521, which holds that the appointment must, in the absence of statutory provision to the contrary, be in writing, with Hoke V. Field, 10 Bush, K'y., 144, which holds that it may be made orally. ^ People V. Woodruff, 32 N. Y., 355 ; State v. Barbour, 53 Conn., 76 ; Gulick V. New, 14 Ind., 93. ^ Cf. Hinze v. People, 92 111., 406, in which the judge says that no man can be compelled to assume a professional office. 24 THE LA W OF OFFICERS. whose duties are not so arduous as to require the entire time of the incumbent. This seems to have been the original rule in England, where acceptance of a municipal office might be compelled by means of the writ of mandamus/ and where failure to assume office might generally be punished by indictment.'^ The strictness of this rule has been somewhat relaxed in this country, where the rule has been retained. Thus where the office is in any sense obligatory, relief from the operation of the rule may be obtained by the pay- ment of a fine, which in some cases, as e. g. in the case of the office of supervisor in New York, has been as high as $50. Even in these cases the law generally states that certain excuses are sufficient to relieve from service, large discretion in the matter of accepting an excuse being usually granted. Further it has been held that the holding of one office will relieve from the obligation of accepting another.^ Finally where acceptance of the office is not obligatory some formality indicative of the intention to assume the office seems to be necessary in order that the office may be regarded as filled.* Qualifying for the office is regarded as the best evidence of accept- ance.5 Refusal, and neglect to qualify will be regarded as a refusal, will operate to extinguish any right which the officer has to the office ; although mere delay will not have this effect.^ In France it is almost never the case that the accept- ance of office is obligatory. In Germany the rule is ' Rex V. Bower, i B. & C, 585. 'See State V. Ferguson, 31 N. J. L., 107. ' Hartford v. Bennett, 10 Ohio St., 441. * Johnston V. Wilson, 2 N. H., 202; Smith v. Moore, 90 Ind., 294, 306, 313. ^ Ibid. ® Mechem, op. cit., sees. 266, 433, 434. FORMATION OF THE OFFICIAL RELATION. 25 very much the same as in the United States, but where the obligation to serve does exist, the penalty for refusal to serve is much more severe.^ In England the old rule of obligatory service has been much modi- fied. Much more reliance is placed on voluntaryism than formerly. There are still, however, instances of obligatory official service, as e, g, in the municipal service where most of the unpaid municipal offices are obligatory.^ V. — Officers de facto. While it is in general true that the official relation can be formed only in one of the ways recognized by the law, and that the acts of persons who without right intrude into offices are absolutely void both as against the public and third persons, it is also a gen- eral principle of the English common law, based upon reasons of public convenience, that persons who, though not legally officers, have yet acted under color of right, L €. have been declared elected or appointed or have held over in office in good faith, or whose assumption of office has been for a long time acquiesced in by the public, are regarded for many purposes as officers ; and that their acts will be given the same faith and credit as the acts of de jure officers. Such persons are called officers de fcvcto} It has, however, been held that an office must be originally established by law, i, e. that while there may be an officer de facto there can never be an office de factor One result of this rule as to the acts of officers de facto is that such acts may not, any ^ Supra, I., p. 327. 2 Supra, I., p. 255. ' See Plymouth v. Painter, 17 Conn., 585 ; Hamlin v. Kassafer, 15 Oregon, 465 ; State v. Carroll, 38 Conn., 449 and cases cited. * Norton v. Shelby Co., it8 U. S., 425, 442. 26 . THE LAW OF OFFICERS. more than the acts of officers dejure, be impeached in a collateral proceeding to which the officer is not a pai*ty.^ This is not, however, true of the acts of mere intruders because their acts are absolutely void. ^ Indeed the mere intrusion into an office without color of right cannot be said to result in any of the incidents of the official relation with the exception that the intruder may be forced by the government to account for moneys which he may have received.^ While for reasons of public convenience the acts of officers de facto are given in collateral proceedings the same force and credit as are given to the acts of officers de jure this rule is not so applied as to permit an officer de facto to build up any claims for himself from the fact that he has assumed office. Thus he cannot recover compensation,* nor may he bring action in his official capacity without showing title,^ nor may he, when sued, escape responsibility for an act which may be justified only by a valid title to the office.^ A further result of this position of officers de facto is that they are liable for damages resulting from their negligence,'' must per- form all the duties connected with the office duiing the time they assume to hold it^ and may be punished criminally for the commission of official crimes.^ • Ibid. ; People v. Hopson, i Denio, N. Y., 574, 579. '^ See Conway v. City of St. Louis, 9 Mo. Appeals, 488. • See U. S. V. Maurice, 2 Brock. U. S., 96. • People V. Tieman, 30 Barb. N. Y., 193 ; Dolan v. the Mayor, etc., 68 N. Y., 274. 5 People V. Weber, 89 111., 347. • Green V. Burke, 23 Wendell N. Y., 490-503 ; Riddle v. Bradford, 7 S. & R. Pa., 386, 392 ; Rodman v. Harcourt, 4 B. Mon. K'y, 224, 229 ; Patterson v. Miller, 2 Mete. K'y, 493, 496. ' Longacre v. State, 3 Miss., 637. ® Kelly V. Wimberly, 61 Miss., 548. • Diggs V. State, 49 Ala., 311 ; State v. Goss, 69 Me., 22 ; see also Mechem, cp. cit., sees. 315-346. CHAPTER III. QUALIFICATIONS FOE OFFICE. /. — Elective officers, 1. Right to provide qualifications. — Nowhere does the law permit any one and every one to hold offices. In all countries certain qualifications of eligibility for office are prescribed. For the power to hold office is not generally a right guaranteed by the constitution, but rather a privilege usually granted to all electors or citizens but sometimes granted to persons who are neither citizens nor electors and sometimes not to all electors or citizens, and in all cases subject to the regu- lation of the legislature in the absence of constitutional restriction.^ As a general thing in the United States it is held, either as the result of a direct constitutional provision or as a result of the interpretation put by the courts upon certain general constitutional provisions, that political and religious opinions may not be made a test. Thus it has been held that it is not within the power of the legislature to provide that two members of a board of four members shall be chosen from each of the two leading political parties.'^ . ^ See Ohio v. Covington, 29 Ohio St., 102, holding that an educational quali- fication is proper ; Darrow v. People, 8 Col., 417, holding that a property qualification is proper ; cf. Barker v. People, 3 Cowen N. Y., 686. ' Evansville v. State, n8 Ind., 426, 435 ; People v. Hurlburt, 24 Mich., 44, 93 ; Attorney General v. Detroit Common Council, 58 Mich,, 213, 215. See 37 28 THE LAW OF OFFICERS. 2. Usual qualifications, — The qualifications which have been established for elective officers are in all countries pretty much the same. They consist for the most part in citizenship or the right to vote/ the attain- ment of a certain age, the possession of good character/ and for the majority of offices the possession of the male sex. This is not generally the case in the United States for school offices, and in some commonwealths, as e. g. Kansas, is not the case for municipal offices.^ In the absence of special statutory provision as to the eligibility of women there is no fixed and universal rule as to the matter in the United States. In Hohin- son^s Case^ it is said that the male sex is required where no provision as to the eligibility of women exists, though it is admitted there is no constitutional objection to their being made eligible by statute.^ On the other hand the contrary rule, viz., that women are eligible in the absence of statutory provision, seems to be held in In re Hall.^ For local officers, further, resi- dence in the locality in which the duties of the office are to be performed, or some equivalent therefor, is also Mayor v. State, 15 Maryland, 376, 468. But see Rogers v. Buffalo, 123 N. Y., 173, which holds that a law providing that not more than two members of a board shall belong to the same political party is perfectly proper. In some of these cases the decision of the court was to a certain extent influenced by the fact that it was impossible for the court to decide whether a person belonged to one of the leading political parties. ' See State v. Smith, 14 Wis., 497 ; State v. Murray, 28 Wis., 96 ; State v. Trumpf, 50 Wis., 103. But see In the matter of Ole Mosness, 39 Wis,, 509, 511, where the court says that extra-territorial officers, as e.g. commissioners, to take acknowledgments, need not be citizens or electors. ^ See Mechem, op. cit., sees. 77-80, particularly for the usual disqualification resulting from conviction for crime. ' For a summary of the rules with regard to the eligibility of women to office see M. Ostrogorski in the Political Science Quarterly, VI., 677. * 131 Mass., 376, 383. " See 115 Mass., 602, and Huff v. Cook, 44 Iowa, 339. • 50 Conn., 131. QUALIFICATIONS FOR OFFICE. 29 generally required. Finally the possession of real property is often required, particularly in the case of local offices. This last qualification is more common in Europe than in the United States.^ In the case of offices of a technical or professional character the law usually requires that the candidate must have under- gone some training or possess some degree or certificate. Thus no one but an engineer by profession may be elected to the position of state engineer and surveyor in New York.^ Further where judges and prosecuting officers are elected by the people it is usually provided that the candidate for such positions shall be a coun- sellor at law of a certain number of years' standing.^ Finally in many cases the possession of one office will disqualify for others."* There is not absolute agreement in the decisions as to when the qualifications required by law must exist, some decisions holding that they must exist at the time of the election ^ ; others holding that it is sufficient if they are present at the beginning of the term of office, holding that the qualification is not one for election, but for holding office.^ //. — Appointed officers in the United States. For appointed officers the qualifications differ con- siderably in the different countries and in many cases * See Mechem, op. cii., sec. 81, and Darrow v. People, 8 Col., 417 ; supra^ I., p. 320. 'Constitution, art. v., sec. 2. ^ See People v. May, 3 Mich., 598. 4 See People v. Clute, 50 N. Y., 451 ; infra, II., p. 96. 'Searcy v. Grow, 15 Cal., 117, followed by the later decisions in that com- monwealth; Parker v. Smith, 3 Minn., 240; State v. Clark, 3 Nev., 519; State V. McMillen, 23 Neb., 385. ^ State V. Murray, 28 Wis., 96; State v. Trumpf, 50 Wis., 103 ; Smith v. Moore, 90 Ind., 294 ; Privett v. Bickford, 26 Kan., 52. Some of the later Wisconsin cases hold to this rule only on the ground of stare decisis, and recognize that the other rule is the better one. 3© THE LA W OF OFFICERS. are mucli more stringent than are those for elective offices. 1. General qualifications, — The first of the general qualifications for appointment to office in the United States is the possession of citizenship or the right to vote. This does not, however, appear to be the univer- sal rule. There is nothing in the statutes of the United States national government absolutely decisive on the point. The United States Revised Statutes which govern the form of the official oath ^ seem to presuppose that citizenship is necessary but nowhere is it expressly required. The civil-service law of 1883 does not require citizenship but general rule III ^ passed in execution of the law would seem to re- quire citizenship for the classified service. In New York also civil-service rule 35 requires citizenship for the classified service, and in Massachusetts it would seem to be required for all positions in the service ex- cept expert positions.^ But apart from these provisions the law does not seem to be explicit on this point; and it is well known that many positions in the diplo- matic and consular services are filled by persons who are not citizens of the United States. A qualification akin to that of citizenship is that of residence. In New York and Massachusetts the rules require a resi- dence in the commonwealth of one year for positions in the classified service.* In the national service there is a peculiar rule for the classified departmental ser- vice. This is 5 that appointments to the classified pub- lic service at Washington shall be apportioned among ^ Sees. 1756-7. 2 Sec. 8. ^ Civil-Service Rule VII., i. * N. Y. Rule 35 ; Mass. Rule VII., i, which requires it for all positions in the service with the exception of expert positions. 'Civil-Service Law, sec. 2, third ; Departmental Rule VII., 2. QUALIFICATIONS FOR OFFICE. 31 the common wealths, territories, and the District of Columbia in accordance with their population as fixed by the last census. This rule has been regarded by some of the best administrative officers of the government as a detriment to the service and is from the point of view of administrative science absurd in the extreme. The next general qualification is to be found in the limits of age at which entrance into the service is al- lowed. The purpose of these provisions is to exclude the too young and the too old. The limits of age vary with the particular branch of the service from a mini- mum of sixteen for the position of junior clerk in the classified postal service to a maximum of fifty for the position of superintendent in the classified Indian ser- vice.* Generally, however, all persons between the ages of twenty and forty-five may enter the classified service. In New York the limits of age are fixed by the civil-service commission after consultation with the heads of departments, differences between the two being settled by the governor.^ These vary from a minimum of eighteen for messengers to a maximum of fifty for clerical positions.^ In the United States na- tional, the New York service, and the Massachusetts service these limitations do not apply to persons who have been honorably discharged from the military or naval services of the United States. Such persons it is well to note are always to be preferred by the ap- pointing officers.-* » Postal Rule II., 2 ; Indian Rule II. ' N. Y. Rule 24 ; cf. Massachusetts Rule X. which requires a certain age only for certain branches of work. ' See sixth report of the New York civil-service commission, 464. See also Mechem, op. cii., sec. 71. * U. S. L. 1883, c. 27, sec. 7 ; N. Y. L. 1884, ch. 410 ; Mass. L. 1887, ch. 437 » ^f' Mechem, op. cit.^ sec. 84, especially for the decisions in construction and application of these laws. 32 THE LAW OF OFFICERS. The third general qualification is to be found in the possession of good character. The civil service laws very generally provide in addition to the usual dis- qualification for conviction of crime' that no person shall be appointed to office who habitually uses intox- icating beverages to excess, while the Massachusetts law also disqualifies all liquor sellers.^ The rules also generally provide that no person shall be appointed in the classified service who has been guilty of a crime or of notoriously disgraceful or infamous conduct.^ Fi- nally it is provided in the rules generally that certificates of good moral character shall be presented at the time that the application for appointment is made, and that when such recommendations are made by public offi- cers, especially by legislative officers, no part of such recommendation, except such as bears upon the char- acter of the applicant, shall be considered by the appointing officer.* Finally it is to be noticed that the male sfex is not generally required for appointed officers. Thus it has been held or intimated that a woman may be appointed to the position of postmistress and pension agent,^ to that of deputy clerk,^ and to that of master in chancery.^ Further the rules in the United States national service and in the Massachusetts service seem to presuppose that women will be appointed.^ ' For this see Mechem, op. cit., sees. 77-80. ^ U. S. L. 1883, c. 27, sec. 8 ; Mass. L. 1884, c. 320, sec. 4. 3 U. S. Gen. Rule IV., 2, III., 8 ; N. Y. Rule ro ; Mass. L. 1884, c. 320, sec. 4. * U. S. L. 1883, c. 27, sec. 10 ; N. Y. L. 1883, c. 354, sec. 9. ^ In re Hall, 50 Conn., 131, 137. " Jeffries v. Harrington, i7Pac. Rep. (Col.), 505. ' Schuchardt v. People, 99 111., 501. 8 U. S. Department Rule VII., i, b ; Massachusetts Rule XI., 2. QUALIFICATIONS FOR OFFICE. 33 2. Intellectual capacity, — The most important quali- fication for appointed officers is that of capacity, which may be either physical or intellectual. Physical ca- pacity, when required, is to be shown either by certifi- cates of persons acquainted with the applicant or of physicians,^ or by examinations made either by a physician or in the nature of tests requiring unusual strength or agility, as e, g. the positions in the police and fire services of the cities or in the national revenue marine service. Sometime, and generally in order to be qualified for these positions, the applicant must be of a certain weight, a certain height, etc., etc} Originally there seem to have been really no legal requirements as to intellectual capacity in the United States for appointed officers. The earliest instance of qualifications for capacity in the English law is said to be found in the case of the office of the sheriff of London. In order to be qualified for this position, the candidate was, in a time when the arithmetical capacity of the ordinary man was not great, obliged to count six horse-shoes and sixty-one nails. To prove physical capacity the candidate was obliged to cut a bundle of sticks. While this severe test of intellectual capacity has fallen into disuse, it is said that it is still neces- sary for the candidate for the office of sheriff in London to cut the bundle of sticks which now consists of a bundle of matches.^ It was believed in the United States that the officers to whom the power of appoint- ment had been given, would of their own accord » U. S. Gen. Rule III., 8 ; N. Y. Rule 10 ; Mass. Rule XII. 'See Massachusetts Rule X., XXII.; Comstock, The Civil Service of the United States, 578 et seq., 582. ^ See Peck v. Rochester, 3 N. Y., Sup., 872, citing Hare, Walks in London^ N. Y. Ed., II., 272, 273. VOL. I J— 3 34 THE LAW OF OFFICERS. choose the best men that they could obtain. With the growth of party government, partisan rather than administrative considerations came in many cases to govern the action of the appointing officers, both in the national and the commonwealth governments. The natural result of such a practice was a deterioration in the character of appointees; and as early as 1853 the attempt was made by Congress to prevent the appoint- ment of absolutely incapable persons by providing that all appointees must pass an examination before they might enter the clerical service at Washington, which was divided at about the same time into classes, whence the name of classified service. This pass examination was to be conducted by officers of the departments to which the law applied. The plan was not successful when put into operation, but nothing further was done until 1870, when President Grant, in his message to Congress of that year, advocated the adoption of a' system of competitive examinations. The result of the message was the passage of a law, now partly incor- porated into the revised statutes, which authorized the President to prescribe such regulations for the ad- mission of persons into the civil service of the United States as would best promote its efficiency and ascertain the fitness of each person in respect to age, health, char- acter, knowledge, and ability for the branch of the service into which he sought to enter. For this pur- pose the President was authorized to appoint suitable persons to conduct the examinations which it was in- tended to establish. The President issued a set of rules and appointed a commission. The system of competitive examinations went into effect, and accord- ing to the statements of the highest administrative QUALIFICATIONS FOR OFFICE. 35 officers of the government proved eminently successful. But in 1874 Congress, in which from the first there had been considerable opposition to the system, refused to make the necessary appropriations to carry on the V70rk of the commission, and the rules generally ceased to be enforced. The rules still continued to be applied in the New York custom-house, were later extended to the post-office, and were so successful that in 1883 the present civil-service law was passed. A law similar to it was passed in New York and Massachusetts, and the plan has been adopted in the city of Philadelphia by a Pennsylvania law of 1885. Before entering upon the consideration of the pro- visions of these laws and the rules as to capacity issued by the executive in execution of them it must be noted that they are not mandatory upon either the President or the governor. They simply authorize him to ap- point commissions to aid him in the work and to issue rules as to the details of the competitive or other examinations which are intended by the laws to be established. But as soon as such rules are once pro- mulgated they become binding upon the heads of departments having the appointing power as a result of legislative enactment.^ For since the power of appointment is in these cases based upon legislation its extent can be changed by legislation. On this account it cannot be said that the civil-service laws are uncon- stitutional so far as the relations of the chief executive and the ordinary heads of departments are concerned.^ ^ Cf. United States v. Perkins, ii6 U. S., 483 ; see also Peck v. Rochester, 3 N. Y. Sup., 872, where the city was enjoined from paying a salary to a city official on the ground that his appointment had been made in violation of the law ; see also Rogers v. Buffalo, 2 Ibid., 326. ' See Dorman B. Eaton's brief in the Hinckley case, New York Times, Sept. 28, 1885. 36 THE LA W OF OFFICERS. Where, however, the head of a department has the appointing power as a result of constitutional pro- vision, it has been held in several decisions that the chief executive may not, even if authorized by statute, prescribe rules for appointment to the service which limit the power of appointment of such head of department by requiring that he shall select his sub- ordinates as a result of a competitive examination/ The effect of these decisions has been to take away a large part of its force from the civil-service-reform move- ment in New York. For the superintendent of public works and the superintendent of prisons have the appointing power by grant of the constitution and ap- point by far the greatest number of the administrative subordinate officers of the central government of the commonwealth of New York. ^ The law and rules of the United States national government do not attempt to prescribe intellectual qualifications for all positions in the national service, but start out by exempting certain positions from the operation of the rules. Thus section 7 of the law pro- vides that none of the Senate appointments shall be classified for examination except with the consent of the Senate which up to the present time has neither been asked for nor given, and that persons in the secret service of the government and laborers shall not be obliged to pass an examination in order to be appointed to positions in the service. The rest of the national * People ply to the courts (^. e. where the method of adminis- trative execution has not been provided) no special judicial control is in many cases necessary though it may often be provided. For the courts, as in the case of the imposition of penalties for the violation of the absolute unconditional commands, may, when the ad- ministration applies to them for the power to put its orders into execution, refuse to grant it the power on the ground that the case before it is not one of the cases provided for in the law ; and in this way exercise a sufficient control over it. But for all cases where administrative execution is provided or where the action of the administration is not reviewable collater- ally by the courts, which is usually the rule/ some method must be devised which will ensure that the administration shall act only in the cases and only in the way in which the law has said that it shall act. The special judicial control thus formed may be called and in most states is called an administrative jurisdic- tion because it is a special jurisdiction of judicial bodies over the acts of the administration. ///. — Kinds of judicial control. The judicial control thus proves, on analysis, to be of a threefold character. In the first place it is exer- cised by the civil courts, first, in the power which is almost everywhere given to them to entertain suits of ' Cooley, Taxation^ 2d Ed., 260, and cases cited. 148 CONTROL OVER THE ADMINISTRATION, a private legal character against or by the government or some of the public corporations within the govern- ment ; and, second, in the power which in nearly all countries is given to the courts to entertain suits against officers of the administration for the damages which they may have caused by their illegal acts or the negligent performance of their duties. In the second place the judicial control is exercised by the criminal courts, first, in the power which they have to pass upon the validity of the acts of the administration when an individual is prosecuted be- fore them for the violation of these acts or of the law which the administration seeks to enforce ; and, second, in the power which they have to punish officials for the commission of ordinary crimes or for the criminal violation of their official duties. In the third place either there have been formed special courts, or there has been given to the ordinary courts a special jurisdiction, to hear appeals directly against the acts of the administration, ^. e, an adminis- trative jurisdiction. As a result of the possession of the administrative jurisdiction these courts may often annul or amend the acts of the administration which are complained of. All systems of administration make use of these different methods of judicial control but the combina- tions of the different elements of which the judicial control consists, will be found different in the different countries. It will now be our purpose to ascertain what exactly is the combination, and the reasons there- for, that has been made in each of the countries vfhose law is being examined. /- / CHAPTER 11. CONTROL OF THE CIVIL COURTS. /. — Suits by or against the government. The power of the courts to entertain suits in con- tract or tort, to which the government or one of its local corporations is a party, depends upon the extent to which the government in its central or local organi- zation is recognized as possessing corporate rights and as subject to corporate liabilities, upon how far the government is to be treated as a juristic person. As a general rule of law it may be said that the govern- ment is a juristic person so far as its power to sue is concerned,^ but it is not fully settled in all countries that it is to be treated as a juristic person in the case that the wrong or breach of contract is committed by its officers.^ The idea that the government cannot be sued in the ordinary courts seems to have arisen from the application of the principles of the Roman law,^ and the adoption of the monarchical principle that the " sovereign can do no wrong." While this rule seems ^ Cf. Dillon, Municipal Corporations^ 4th Ed., I., 55 ; see also United States V. Maurice, 2 Brockenbrough U. S., 96, 100, loi, Opinion by Marshall, C. J. ; U. S. V. Tingey, 5 Peters, 115 ; U. S. v. Bradley, 10 Peters, 343; Dugan V. U. S., 3 Wheaton, 172. * Dillon, op. cit., I., 55. * Cf. Mommsen, Romisches Staatsrecht, 2d Ed., I., 170, 679 ; II., 712. 149 I50 CONTROL OVER THE ADMINISTRATION. to have been at one time quite universally adopted in European states, on the continent, on account probably of the complete conception of a public corporation, it received later such modifications as to put the govern- ment in almost the same position as an ordinary cor- poration, it being called fiscuSj being made a subject of private law and entering into almost all private legal relations/ Further in order to facilitate the action of the government as a subject of private law, in all countries, both in those following the old rule that the sovereign can do no wrong and therefore may not be sued in the courts and in those which follow the later continental rule by which the government is regarded as fiscus and as entering into private legal re- lations, many of the local organizations of the govern- ment are incorporated, are able to sue and are liable to be sued in the civil courts. On account of these facts it is necessary to consider the control of the courts over the administration in this matter of suits by or against it, from the standpoint of the individual and from that of the government, and also from the standpoint of the central government and from that of the local governmental corporations. 1. Suits by the government against individuals. — As far as the local corporations are concerned it may be said that they occupy as plaintiffs in a suit against individuals just about the same position that individ- uals occupy. In all private law suits they are in the same position as mere private corporations. Of course in many instances there are certain formalities which must be complied with by certain of these municipal corporations before they can bring the suit, and some- ^ See Sarwey, Das Oeffentlicke Recht^ 398. CONTROL OF THE CIVIL COURTS. 151 times before they can defend a suit, as e. g. in France where the conseut of the council of the prefecture is necessary; but such limitations form rather a part of the formalities of administrative action and procedure than a part of the control of the courts over the ad- ministration. When, however, we come to the central government we find that its position as representative of the sovereign does have quite an appreciable effect in several instances on its position as plaintiff in the courts. In some cases, as has been indicated, its posi- tion as representative of the sovereign is carried so far as to permit it to enforce claims, which are liquidated in amount, against individuals without recourse to the courts at all and by means of administrative execution.* In such cases the only control that the courts can have over the private legal relations of the government is to be found in the possibility, which is often present, to exercise their administrative jurisdiction at the instance of some individual against the enforcement of administrative execution. And even where administrative execution has not been adopted for the enforcement of govern- ment claims, where the government has to proceed in the enforcement of its claims very much as any ordinary suitor, it often has certain privileges which are not pos- sessed by the ordinary suitor, as e, g. in England by the Crown suits act, or it occupies the position of a pre- ferred creditor, its claims taking precedence of all other claims. In case the government sues it is generally admitted that the courts, even in those countries which do not permit suit to be brought against the govern- ment directly, will make allowances in their judgment for any counter-claim or set-off proved by the indi- ' See Murray's Lessee v. Hoboken, etc.^ Co., 18 How., U. S., 272. 152 CONTROL OVER THE ADMINISTRATION, vidual who is defendant to the suit/ Use may not, however, be made of this power to give judgment against the government.^ 2. Suits against local corporations, — As a result of the desire to facilitate the conduct of the private legal relations of the government many of the important localities, into which the state is divided, are regarded as juristic persons, and individuals may in all cases bring suits against them in contract and often in tort. There is, however, in the United States a distinction made between what are known as quasi corporations and full municipal corporations,^ in accordance with which suits in torts, except when permitted by express statute, may not be brought against the former, inas- much as they are agents of the central government, as such are in the eyes of the law incapable of commit- ting a wrong, and therefore share in the immunity possessed by the sovereign whom they are regarded as representing.* Suits in tort may, however, be brought against the full municipal corporations since they are formed for the peculiar advantage of the inhabitants of the corporation and therefore may, like private corporations, be made, in the domain of private legal relations, subject to the rule of private law that the superior is responsible for the acts of his agents.^ But it must be noticed that even full municipal corporations are not generally responsible for damages resulting from the execution of what are called governmental ' U. S. V. Macdaniel, 7 Peters, 16 ; cf. U. S. v. Ringgold, 8 Peters, 150, 163. 2 U. S. V. De Groot, 5 Wall., 419 ; U. S. v. Eckford, 6 Wall., 484. 'See JM/ra, I., p. 202. * Morey v. Town of Newfane, 8 Barb., 645, 648 ; cf. Hill v. Boston, 122 Mass., 344. See supra, I., p. 173. ^ Dillon, Municipal Corporations, 4th Ed., I., 45 ; Bailey v. Mayor, etc., SHill, N. Y.,531. CONTROL OF THE CIVIL COURTS. 153 powers in contradistinction to their private powers.^ Further, while the local corporations may thus be sued and judgment obtained against them in the usual way, it is to be noticed that such judgment is not commonly collectible in the usual way, ^. e, by sale on execution of the property of such corporations. For such a method would interfere too much with the carrying on of the governmental powers which are generally conferred on these corporations. The usual means of enforcing a judgment against one of these local corporations is to apply to the proper authority, in case the administrative control has been adopted, then to the^supervisory administrative author- ity, in case this is not the method, then to the courts for the exercise of their administrative jurisdiction, to force the proper local authority to insert the necessary ap- propriation in its budget and to provide by tax or otherwise for the payment of the judgment. The former method is the one usually adopted in France,^ the latter is the method in the United States.^ In Germany, however, in some places the law permits ex- ecution to issue in somewhat the usual way, the reason being probably that the localities possess as juristic persons a large amount of property which is of a purely fiscal character and is not made use of for the various administrative services carried on by the local corpora- tions.* Such is the case also in some of the common- wealths of the United States. ^ * Ibid. ; see also Cooley on Taxation, 2d Ed., 816. " Boeuf, op. cit., 229, citing Avis du Conseil d'Etat of the 12th of August, 1807. 3 E. g. see N. Y. Rev. Stats. Part III., Chap. VIII., Title IV., art. fourth, sees. 102-4 ; ^/' Dillon, op. cit., II., 1028 ; Alden v. Alameda Co., 43 Cal., 270. * Sarwey, Das Oeffentliche Recht, 300 ^ Dillon, op. cit., I., 673. 154 CONTROL OVER THE ADMINISTRATION. 3. Suits against the central government — While the rule in regard to suits against the local corporations is, on account of the possession by the localities of juristic personality, much the same everywhere, viz.^ that they may be sued in private law matters at the instance of the individual and that suits are brought in the ordi- nary courts, when we come to the matter of suing the central government we find much less similarity. We find that there is an English rule and a continental rule. a. The English rule, — The English law, basing it- self upon the principle that the sovereign can do no wrong, and believing that when the government enters into private legal relations the sovereign acts through it, denies in principle to the individual the right to sue the central government, except with its consent or in the special way which the government may have indi- cated.^ This rule which formed a part of the common law was introduced into this country after the forma- tion of an independent government here,^ although from the beginning the sovereign has here been separated from the government, and therefore when the govern- ment was acting it was not the case that the sovereign was also acting. In England, to prevent this privilege of the government from resulting in gross injustice, the individual was from time immemorial allowed respect- fully to petition the Crown, which was historically the sovereign, that right be done him. Such a petition was called the petition of right.^ It is now pro- vided * that the petition of right shall be left with the ' Gneist, Das Englische Verwaltungsrecht, 1884, 375. * Dillon,^/, cit., I., 55. ' It may be traced back as far as 14 Edw. III., c. 14, and perhaps even as far as Magna Charta. * 23 and 24 Vict,, c. 34. CONTROL OF THE CIVIL COURTS. 155 home secretary. It is then submitted to the Crown, which acts on the advice of the attorney-general. If he thinks that the statement of facts contained in it is sufficient to give a ground of action, he advises the Crown that it be granted and is responsible to Parlia- ment for the advice which he gives. In case he ad- vises that the petition be granted he writes on it the words %oit droit fait and the petition is then heard and decided by the royal courts. By this method it will be noticed that the administration has the power to refuse the individual the right to sue the central government in the courts but must assume to Parlia- ment the responsibility for such refusal, which fact may check arbitrary and inconsiderate action. The weak judicial control is thus in this instance reinforced by the parliamentary control. Several cases have deli- mited the scope of the petition of right. Among them may be mentioned that of the Viscount Canterhury V. Attorney Generalj which holds that the govern- ment may not through the petition of right be made responsible for the tortious acts of its agents.^ But it is believed that where an officer is mulcted in damages for carrying out the orders of his superior, the govern- ment is morally bound to indemnify him and is thus, morally at least, responsible for the torts which it itself commits.^ Such a moral obligation is sometimes made a legal one in the cases of unjust enrichment by officers, as in the case of the payment by the importer on the demand of the collector of customs of more than the legal duties. Here suit may be brought by the indi- ' I Phillips, 306. ' The same rule is adopted in Tobin v. The Queen, 16 C. B. N. S., 310. ^ Todd, Parliamentary Government, 2d Ed., I., 496. 156 CONTROL OVER THE ADMINISTRATION. vidual against the collector, and the government is by- law obliged to reimburse the collector.^ b. The rule in the United States. — In this country the method of the petition of right to the executive was felt to be inapplicable inasmuch as the executive was not historically the sovereign. The practice was for the individual to petition the legislature, which in the commonwealths had the residuary governmental power, and in all cases the power over the public purse.^ If the petition was regarded as well founded a special appropriation bill was passed which was man- datory upon the treasury. 3 In the national govern- ment this practice has undergone considerable modifica- tion. Congress saw that it was beyond its power to make a thorough investigation of all the claims which were brought before it, that this method of settling claims practically devolved upon it a vast amount of work which was really judicial in character and for the performance of which it was unfitted. Therefore in 1855 an act was passed ^ providing a court for the in- vestigation of claims against the United States govern- ment, based upon a law or contract. At first its deci- sions had no legal effect whatever, since they were drawn up in the form of a bill which was afterwards to be laid before Congress for its approval. The act was then amended so as to make the court of claims a real court whose judgments were of themselves man- datory upon the secretary of the treasury and binding upon the individual suitor and were to be paid from * 39 and 40 Vict., c. 35. ^ Cf. O'Hara v. State, 112 N. Y., 146 ; People v. Stephens, 71 N. Y., 527, 540, 548. 3 Kendall v. United States, 12 Peters, 524. * 10 Stats, at Large, 612. CONTROL OF THE CIVIL COURTS. 157 any general appropriation for the payment of private claims. Appeal might be taken from them to the United States Supreme Court.^ This court of claims has not, however, the same powers as an ordinary United States court. Thus it has, as a general rule, no equity juris- diction.^ It has also no jurisdiction over torts com- mitted by the government,^ although, in order to render justice, it will stretch its jurisdiction by means of the quasi or implied contract doctrines so as to embrace matters which bear a strong resemblance to tortious acts.* The jurisdiction of the court of claims is thus mainly one of suits in contract. In such suits the court may in its decision take account of any set-offs or counter-claims which the government may have against the individual bringing suit, so that the deci- sion may result in a judgment against, instead of in favor of, the individual suing. The law organizing the court of claims also provides that the court may act as an advisory body to Congress or to the executive departments of the government in the settling of other kinds of claims. Cases before the court of claims are conducted gen- erally in accordance with the ordinary rules of law governing the matter of contracts between private individuals, though the procedure is somewhat differ- ent from that had before the ordinary United States courts, and though the government occupies a privi- 1 12 Stats, at Large, 865. 2 Bonner V. U. S., 9 Wallace, 156 ; U. S. v. Jones, 131 U. S., i. 3 Gibbons v. U. S., 8 Wallace, 269; Morgan v. U. S., 14 Wallace, 31; Langford v. U. S,, loi U. S., 341. * See 4 Ct. of CI., 248 ; 14 Ibid., 396 ; see also U. S. v. Great Falls Mfg. Co., 112 U. S., 645, where it was held that if the government took land to which it asserted no title there was an implied contract to pay for it. So also in a case of a patented invention, U. S. v. Palmer, 128 U. S., 262. 158 CONTROL OVER THE ADMINISTRATION. leged position. Thus the government always has the right to appeal, the individual only in specified cases. Where an excessive claim is fraudulently and wilfully made the whole claim is lost. This is true also in case false evidence is adduced. The judges also decide questions both of law and of fact ; there is no jury. The procedure in the court of claims is largely in writing, for the ease of the suitors in the court who, were they obliged to appear in person, might be obliged to come or send counsel a great distance, since the court sits only at Washington.^ The work of the court of claims has been so satisfactory and the per- mission to the individual to sue the government has resulted in so little inconvenience to the government that a late act of Congress has provided that individ- uals having claims against the government, based on a law or contract and under a certain amount, may bring suit against it in the district or circuit courts of the United States, which is then tried without a jury.^ Finally there are one or two special courts for special classes of claims ; e, g. court for French spoliation claims and court for private land claims.^ It will be noticed that by a gradual development of about thirty years we in the United States have de- parted from the rule that the individual cannot sue the national government, and have now practically adopted I the rule in force in continental Europe. The government / is conceived of as a juristic person, which may enter into private legal relations of a contractual character, ^ For the procedure and the general rules governing the court see an article in the Southern Law Review, written by one of the justices of the court (Judge Richardson) and reprinted in vol. xvii. of the reports of the court of claims. ^ 24 Stats, at Large, 505, 1887. ' L., June 20, 1888, March 3, 1890. CONTROL OF THE CIVIL COURTS. 159 and is then liable to be sued in the ordinary courts. We have made this change through the medium of an advisory body to Congress, which was changed into a special court for the trial of claims against the government. But while we have thus adopted the continental rule that the government may be sued be- fore the ordinary courts in contract we have not as yet adopted the rule that the government is ever respon- sible to the individual for torts committed by its officers.^ By a special statute the government is made responsible for the judgments obtained by individual taxpayers where they have paid on the demand of the collectors of internal revenue more than the taxes required by law. Here the individual may sue the collector and the government is bound to pay the judg- ment.^ This is, however, on the theory of unjust enrichment rather than tort. In the commonwealths of the United States this development has not generally taken place. The old practice seems to obtain. The individual desiring to enforce a claim against the government must appeal to the legislature and get a special appropriation bill passed. Here as in the case of the national govern- ment the commonwealth is not responsible for the torts of its officers.^ In some of the commonwealths, however, the first step in the development noticed in the United States government has taken place. In thirteen of the commonwealths the constitution pro- vides that the legislature shall provide a method by which suits may be brought against the government. ' Gibbons v. U. S., 8 Wallace, 269 ; Langford v. U. S., loi U. S., 341. 2 U. S. R. S., sec. 3220. " Clodfelter v. State, 86 N. C, 51 ; Lewis v. State, 96 N. Y., 71. i6o CONTROL OVER THE ADMINISTRATION. In five, however, this is forbidden by the constitution.^ In others, while the constitution is silent on this point, the legislature has provided a method of suing the government. Thus in New York the legislature has provided an advisory body for the purpose of investi- gating claims against the government, from which appeal may be taken to the highest judicial court and which is to report its decisions to the legislature for action.^ In other commonw^ealths the legislature has permitted the individual to sue the government in the ordinary courts.^ In the commonwealths, however, the same need of the power of suing the government is not felt as in the national government. For the com- monwealth system of administration is so decentralized that it may safely be said that most of the contracts made by the administration are made by some one of the local corporations which possess so many of the powers of government. Thus, notwithstanding the rule that suits may not be brought against the central government of the commonwealth, which may be subject to no exceptions, most of the contractual acts of the ad- ministration are subject to judicial control in that they may be made the subject of suits in the courts through the power of the courts to entertain suits against the local corporations. Finally it is to be noticed that, while the govern- ment is not responsible for the tortious acts of its officers in the domain of either public or private law except in the case of the local corporations, still it seems to be recognized that it is not only in its local ' Stimson, op, cit., sec. 75. ' N. Y. L. 1883, c. 205 ; cf. Dillon, op. cit., I., 55, and cases cited. * See Clodfelter v. State, 86 N. C, 51. CONTROL OF THE CIVIL COURTS. i6i corporate organizations, including municipal corpora- tions, but also in its central organization permitted to indemnify its officers for liability which they may incur in the hona fide discharge of their duties, and may raise money for that purpose.* c. The continental rule. — On the continent the rule is that the government is liable to be sued by an indi- vidual in contract and also in tort, where the tortious act is not committed in the performance of functions of • a distinctly public legal character and where the fault of the officer causing it is not purely personal to him- self but consists rather in bad service, in an order badly given, not understood, or imprudently or care- lessly executed.^ Thus the government would not be held responsible for damages caused by its agents in the collection of taxes while it would be if a ship were injured by the negligence of the officers of one of its men-of-war.^ An example of the purely personal act of one of its agents for which the government would not be responsible would be found in the case of theft by him. While the general rule as to the responsi- bility of the government for its contracts and torts is the same in France and Germany, the courts before which such suits should be brought are different. In France while the common law rule in the absence of statute would appear to be that the ordinary civil courts have jurisdiction, so many special statutes have, as a matter of fact, been passed giving the jurisdiction to the administrative courts that it is laid down as the ^ Mechem, op. cit., sec. 879 ; cf. Tracy v. Swartout, 10 Peters, 80. ' Ducrocq, Droit Administratif^ sees. 1055 et seq^ ; Laferri^re, La yuridiction Administrative y II., 149 et seq. ; Von Ronne, Das Staatsrecht der Preussischcn Monarchic, III., 583, 584 ; Bornhak, Preussisches Staatsrecht, II., 47. ' Cf. Ducrocq, op. cit., II., 230, citing a decision of the Council of State. VOL. II. — II. i62 CONTROL OVER THE ADMINISTRATION, rule that the administrative courts are alone competent to declare the government a debtor/ In Germany, however, it is the ordinary courts which have jurisdic- tion of actions both in contract and tort against the government.^ The German rule as to the court which has jurisdiction of these cases against the government seems to be by far the more logical, since the whole responsibility of the government is based upon the theory of its juristic personality, and of its capacity to enter into private legal relations of ail sorts and the consequent possibility of its being held responsible before those courts which have in their hands the application of the private law. The reason for the adoption of the French rule is largely historical and is to be found in the great desire at the time of the revolution to free the administration from the control of the ordinary courts, which had shown themselves too anxious to protect vested rights and hamper the administration in the carrying on of the necessary reforms.3 In both France and Germany the general rules as to the responsibility of the government before the courts which have been mentioned are sometimes modified by special statutes. Thus in France the responsibility of the government for damages resulting from the carelessness of the agents of the postal and telegraph services is very much limited and the action is to be brought before the ordinary courts."^ In Prussia the government is made responsible for the negligence of its registrars of deeds and mortgages, not- withstanding the fact that the registration of land titles ^ Ducrocq, loc. cit. ' Von Ronne, loc. cit. ; Bomhak, loc. cit. ' Infra, II., p. 218. ■* L., Jan. 25, 1873, art. 4. CONTROL OF THE CIVIL COURTS. 163 is evidently a public legal rather than a corporate or private legal act.^ //. — Suits for damages against officers, 1. The English rule, — According to the original German law all officers of the government were sub- ject to the law of the land in the same way as ordinary individuals, and were liable to be held responsible by the courts for their actions committed without authority of law, whenever such actions caused damage to indi- viduals.^ This principle seems to have been retained in England, its retention being undoubtedly aided by the character of the administrative system which was early adopted there. The English system of adminis- tration was of that kind which has been denominated the self-government system, i, e. a system in which the officers were absolutely non-professional in character. While in theory and on account of the early Norman centralization these officers were the officers of the Crown, still in later times they were not actually in close enough connection with the Crown nor in suffi- cient subordination to it to be invested with any of the attributes of irresponsibility which the law assigned to the Crown. On the contrary they were regarded simply as ordinary citizens, who for the time being were serving the government by the discharge of public functions and who after their time of service had expired would fall back again into the ranks of private citizens. The same rules were applied to them which were applied to ordinary citizens. They were not exempted in any way from the observance of the law on account of their official position. If during the period of their discharge * L., May 5, 1872, sec. 29. ' Loening, op. cit., 771-784. i64 CONTROL OVER THE ADMINISTRATION. of public functions they committed an act not justified by the law such act was regarded as coram nonjudice, i, e. as an act of a purely private and personal charac- ter for which, like any citizen, they could be held re- sponsible before the ordinary courts/ The important question to be decided by the courts whenever the act of an officer came up before them was therefore the question of jurisdiction. Did the law give the officer the power to act as he had acted in the particular case or not ? It will at once be seen what an enormous power the courts had and have through the adoption of this principle over the acts of the administration. Any act of any officer may give rise to a complaint which the courts have to decide. In deciding these com- plaints the courts delimit the sphere of administrative competence in all its details in that they settle what is the jurisdiction of all officers of the government. What the actual extent of this control shall be, de- pends, however, upon the attitude of the courts. They may pass upon every act of every officer or they may limit their power by their decisions in the interest of an efficient administration, may leave something to ad- ministrative discretion which they will not attempt to control. This has been the tendency of their decisions both in England and the United States. In both countries they have in the first place made it practi- cally impossible to sue in damages the most important officers of state, i. e, the heads of executive departments in both countries and in the United States, also the President and the governors. Mr. Todd says ^ : * Mechem, op. cit. , 400 et seq. * Parliamentary Government^ etc., 2d Ed., I., 494, 495. , CONTROL OF THE CIVIL COURTS. 165 It may be stated as a general principle, that in assuming on behalf of the Crown a personal responsibility for all acts of the government, ministers are privileged to share, with the Crown, in a personal immunity from vexatious proceedings by ordinary process of law, for alleged acts of oppression, or illegality in the discharge of their official acts. . . . Whether the alleged liability arises out of contract or out of tort, or from any matter of private individual complaint against a minister of the Crown, for acts done in his official capacity, the ordinary tribunals of justice will afford him special immunity and protection. This does not mean that in no possible case can a suit be brought against a minister, but only that the courts are very careful not to extend their control so as to hamper the administration of public business by the ministers. In the United States the rule is practi- cally the same. Up to 1870 there was only one action brought against the head of a United States executive department/ and since that time I know of no other case.^ This case, which is our only precedent, was the case of Stokes V. Kendall ^ and was decided adversely to the plaintiff. It is extremely interesting as showing dis- tinctly the attitude of the courts towards this class of cases. It was preceded by the case of Kendall v. The United StateSy^ in which the same plaintiff as in the case of Stokes v, Kendall, had endeavored to obtain a ma/ndamus against the postmaster-general. The Su- preme Court there decided that a given act was. not discretionary but ministerial in character, and therefore that a mandamus might issue ; and seven years later, when the same plaintiff brought a suit for damages against the postmaster-general, the same Supreme Court held that this same act, which it had declared in the ^ See 6 Court of Claims Reports, 177, 180. '3 How., 87. ' Cf, Mechem, op. cit.^ sec. 608. * 12 Peters, 524. i66 CONTROL OVER THE ADMINISTRATION. other case to be ministerial, was, when a suit for damages resulting from it was brought, a discretionary act and therefore that the postmaster-general could not be held liable for damages. The immunity thus granted to the highest officers of state does not really diminish the control possessed by the courts over the administration so much as at first sight it might seem. For these high officers must come into relations with individuals gen- erally through the medium of their subordinates, and according to the English and American system such subordinates are generally responsible for their actions and are not protected by the fact that they have acted according to instructions from their superiors.^ A second limitation which the courts have placed upon their control over the action of the administration, through their power to delimit its sphere of competence, is to be found in the rule, that purely ministerial offi- cers will not be held responsible for damages where they have followed instructions which are legal on their face and contain nothing which will apprise the subordinate that they have been issued illegally, and are not within the jurisdiction of the superior who issued them.^ The weight of authority seems to be further in favor of the rule that a ministerial officer is relieved from all responsibility for the execution of orders fair on their face, even if he is satisfied that there are illegalities lying back of them.^ The Eng- lish law has gone further than the law of the United ^ Tracy v. Swartout, lo Peters, 80. ^ Savacool v. Boughton, 5 Wendell, N. Y., 170; Erskine v. Hohnbach, 14 Wallace, 613, 616 ; Cooley on Taxation, 2d Ed., 797, and cases cited. "^ Ibid., 798, citing Webber V. Gay, 24 Wendell, 485 ; Wilmarth v. Burt, 7 Metcalf, 257 ; Watson v. Watson, 9 Conn., 140 ; Wall v. Trumbull, 16 Mich., 228 ; Cunningham v. Mitchell, 67 Pa. St. ; see also Underwood v. Robinson, lo6 Mass., 296. CONTROL OF THE CIVIL COURTS. 167 States and lias offered to officers, who are not minis- terial in character, quite a large immunity from suits at the hands of individuals by making their defence very much easier.* The responsibility of officers for damages before the courts is in neither the English nor the American law confined to the cases in which they have acted out of their jurisdiction. In many cases officers may be held responsible for damages arising from the non-perform- ance or negligent performance of duties within their jurisdiction, or from bad faith. Here the courts have been guided in their formulation of the rules of their control over officers, by the character both of the offi- cer and of the duties which he has to perform and which the court undertakes to control. Officers are for this purpose divided by the courts into judicial, legislative, and executive officers. In addition to these three classes of officers there is a fourth class of officers whose development has taken place during this cen- tury and whose duties partake of the characteristics of those of the three other classes of officers. These offi- cers are called administrative officers. Such are the American supervisor and county commissioner and the English county councillor. Of these various classes of officers it may be said, in the first place, that purely ju- dicial officers, i. e. officers that hold courts and decide cases of criminal and private law, and legislative offi- cers will not be held civilly responsible for damages, no matter how gross their negligence may be, nor what may be the character of the act giving rise to the ^ See 43 Geo., II. c. 44, sec. 6, cited in Gneist, Das Englische Verwaltungs- recht, 1884, 378. This provides that the justices of the peace and their sub- ordinates shall be responsible only for nominal damages except when they have acted out of malice and without reasonable cause. i68 CONTROL OVER THE ADMINISTRATION. damages, provided it is within their jurisdiction.^ The only possible exceptions to this rule are to be found in the case of the ministerial acts of §"Ma^s^judicial and g'wi^^-legislative officers, when such officers act quoad hoc as administrative officers.'^ The responsibility of executive and administrative officers depends, however, largely on the character of the act which has caused the damage. If the duty, in the performance of which the act causing the damage was done, is discretionary in character, the general rule is that executive and ad- ministrative officers may not be made responsible since the courts do not like to interfere with the discretion of the administration. When, however, the duty is purely ministerial such officers may be held responsible by the courts for their negligence or mal-performance of such duty. As one judge says ^ : The civil remedy for misconduct in office , . » depends exclusively upon the nature of the duty which has been violated. Where that is absolute, certain, and imperative, and every minis- terial duty is so, the delinquent officer is bound to make full re- dress to every person who has suffered by such delinquency. Duties which are purely ministerial in their nature are sometimes cast upon officers whose chief functions are judicial. Where this occurs the officer, for most purposes a judge, is still civilly respon- sible for such misconduct. But where the duty alleged to have been violated is purely judicial a different rule prevails ; for no action lies in any case for misconduct or delinquency, however gross, in the performance of judicial duties. And although the officer may not in strictness be a judge, still if his powers are dis- cretionary to be exercised or withheld according to his own view of what is proper, they are judicial and he is exempt from all responsibility by action for the motives which influence him and the manner in which such duties are performed. ^ Mechem, op. cit., sees. 619, 644, with cases cited. ' Ibid., sees. 635, 643, 647, and cases cited. *See Wilson v. The Mayor, i Denio, N. Y., 595, 599. CONTROL OF THE CIVIL COURTS. 169 There is, however, in the United States a tendency in the decisions to relax the strictness of this rule in the case of administrative officers, officers who, while not holding regular courts, exercise what are called quaai- judicial functions, so as to hold them responsible for bad faith and dishonest purposes notwithstanding the fact of the ^'was^judicial and discretionary character of the duties which they perform.^ In respect to such cases, [says Judge Cooley] though they seem to be out of harmony with the general rule. . . . and the reasons on which it rests, yet we may perhaps safely concede that there are various duties lying along the borders between those of a ministerial and those of a judicial nature which are usually entrusted to inferior officers and in the performance of which it is highly important that they be kept as closely as possi- ble within strict rules. If courts lean against recognizing in them full discretionary powers and hold them strictly within the limits of good faith it is probably a leaning that in most cases will be found to harmonize with public policy." 2. The Roman rule. — While the English law, basing itself on the old German principle of the responsibility of all persons to the courts for the damages they com- mitted unlawfully, gave the courts power to mulct officers in damages where their acts had been contrary to the law and in excess of their jurisdiction; the E-oman law, starting out from the point of view of the government rather than from that of the individual, provided, in the interest of governmental efficiency, that the officers of the government could, during their term of office, be brought to account and made respon- sible for damages only with the consent of their ^ Cooley on Torts, 411. ^ Ibid., 413 ; see also Pike v. Megoun, 44 Mo., 491. 17© CONTROL OVER THE ADMINISTRATION. superior officer.* The German principle of the responsi- bility of officers was at first adopted on the continent.^ Soon, however, with the introduction of the Roman law, came the Koman principle of official irresponsi- bility.^ In the Holy Roman Empire the powers of the imperial courts diminished so much as a result of the decay of the empire that it was impossible to enforce the responsibility of the various territorial lords, to the most important of whom a legal exemption from re- sponsibility to the imperial courts was given by the grant of the privilegiuTn de non appellando. The re- sult was that at the time of the Reformation the mon- archs and princes on the continent with all their agents were uncontrolled by the courts, which no longer had the power to hold them responsible for the damages which they might illegally inflict upon individuals. The reason of the adoption among German peoples of this rule of law which seems so regardless of private rights is to be found in the needs of the administration at the time that it was adopted. The struggle with feudalism was at its height and it was the private rights of the feudal lords, or what they chose to con- sider as their private rights, which were most liable to violation on the part of the princes of the continent. Now the imperial courts in Germany and the royal courts in France were held by judges who were inde- pendent in tenure over against the Emperor, any given prince, or the King — in Germany because the judges were chosen by the estates, in France because the judgeships in the ordinary courts were bought and ' Mommsen, Romisches Staatsreckt, 2d Ed., I., 170, 629 ; II., 712. ' Loening, Deutsches Verwaltungsrecht, 771. ^ Ibid. Parey, y Verwaltungsrechty I., 4, citing De Tocqueville, VAncien Regime et la Revolutions chap. 4. CONTROL OF THE CIVIL COURTS. 171 sold and treated as private property. The retention of the principle of the responsibility of the royal and princely officers to the ordinary courts would therefore have effectually prevented the kings and princes from destroying the feudal system with all its abuses and pretended vested rights and would have made impos- sible the development of the national state upon the continent. In England the condition of things was quite different. There the officers of the royal courts were the paid servants of the King and subject to his disciplinary power.^ They did not possess a tenure independent of the Crown till 1701, when the act of set tlement provided that they should be removed only on the address of both houses of Parliament. The desire of the absolute monarchy to reduce the nobility to submission and to do away with feudalism was thus the cause of the adoption on the continent of the Ro- man principle that the officers of the government might be sued by the individual only after the consent of their superior had been obtained. In France this con- sent was to be given by the Council of the King which, before granting such consent, determined the question of jurisdiction, i. e, whether the officer had acted con- trary to the law ; and the suits had to be brought be- fore special courts over whose organisation the King had full power.^ The effect of the French revolution on the position of governmental officers was at first simply to increase their irresponsibility. Since the time of the revolution the position of officers in France has undergone a some- what different development from that of officers in * Infra, II., p. 193, * See Laferriere, La yuridiction Administrative^ I., 584, note I. 172 CONTROL OVER THE ADMINISTRATION. Germany, though Germany has been influenced by what has been done in France. It will be necessary therefore to treat these countries separately. a. Tlie modification of the Roman rule in France. — The desire of the leaders of the revolution to carry on the reform work of the monarchy was so great ^ and their distrust of the courts on account of their attempts to protect the privileged classes in the latter days of the monarchy was so widespread ^ that little desire was felt of subjecting the administration, which was to carry on the reforms of the new era that had just dawned, to the control of the courts. Accordingly we find incorporated into article 75 of the constitution of the 22d of frimaire an VIII (1800), from which year date almost all of the permanent administrative results of the revolution, the principle which had come down to the absolute monarchy from the Roman law, viz,^ that no individual could bring suit in the courts against an administrative officer until the Council of State, an administrative council, had decided that the officer had acted outside of his jurisdiction, and had given its con- sent to the bringing of the suit. In case such consent was given the suit was to be brought in the ordinary courts. But after the reforms of the revolutionary period had been completed this principle had out- lasted its usefulness and remained only a menace to private rights. For use of it was made to destroy almost all fear in the minds of the officers of the ad- ministration that they would suffer pecuniary loss for violating their duties; and an important sanction for administrative integrity was lost. Article 75 was deemed by some of the best French public lawyers to ^ See supra, I., p. 270. * See infra, II., p. 218. CONTROL OF THE CIVIL COURTS. 173 be unnecessary for tlie maintenance of the principle of the separation of powers and of its corollary, the inde- pendence of the administration, which are deemed so important by the French law/ As a result of the abuse of this principle by the government of the second empire, the French people decided to tear it out of their public law root and branch. Therefore after the overthrow of the government of the empire one of the first acts of the new government of the national defence was to repeal article 75 and all pro- visions of law depending upon it or of like import." At first it was thought that this gave the ordinary courts the power to entertain suits in damages against officers, not only for purely personal acts, such as neg- ligence, but also for acts done by them in connection with their duties but outside their jurisdiction ; that the courts had as a result of the repeal of article 75 the same power as the courts in the United States have to delimit the sphere of administrative compe- tence. But the principles of the separation of powers and the independence of the administration were too firmly imbedded in the French law to permit of their being shaken by the mere repeal of the necessity of ob- taining the consent of the Council of State as a pre- requisite to the bringing of suits against the officers of the government. And the Tribunal of Conflicts,^ when called upon to decide what was the effect of the repeal of article 75, held that the competence of the courts was not enlarged by its repeal in such a way as to give them the power to decide upon the legality of an ^ Cf. Dareste, La yusiice Administrative en France^ 520 ; Aucoc, op. cit„ I., 676. ■2 Decree of Sept. iq, 1870. * As to the nature of this body, see infra, II., p. 258. \ 174 CONTROL OVER THE ADMINISTRATION, act of an administrative officer, since such a construc- tion would practically destroy the independence of the administration/ That is the ordinary courts are not yet competent to determine the jurisdiction of an administrative officer. They may, however, mulct an officer in damages where he has done an act of a purely personal character clearly out of his jurisdiction, by which an individual has suffered. Of course the courts have in the first instance to pass upon the question of jurisdiction, but if they make any attempt to encroach upon the sphere of the administration, the conflict, as it is called, is raised and the case is removed into the Tribunal of Conflicts, which thus has the power of preventing the ordinary courts from making such use of their power to hold an officer responsible in damages for his purely personal acts, as to decide the question of the legality of administrative acts.^ The exact powers of the French courts may probably be best explained by a citation of several cases. It has been held that, when an officer has clearly gone out of his way and has slandered another person, even though the slander was committed by the officer while in the discharge of his functions ; or when he has been negligent in the discharge of his duties ; or when he has been guilty of a clear abuse of power, he may be held responsible by the ordinary courts in damages. In accordance with these principles a com- missary of police was declared liable for slander who had in open court addressed a former magistrate and said that the court was extremely fortunate in being rid of such a magistrate ; an engineer who made mis- takes in his calculations with the result that the con- * Arrit 2tjuillet, 1873, affaire Pile'tier. * Infra, II., p. 259. CONTROL OF THE CIVIL COURTS. 175 struction which he was erecting fell down and injured several persons, was held responsible for the damages which his negligence caused ; an officer who, to protect a building of the state from the nuisance of stray dogs, deliberately enticed a dog to come near it and killed it by giving it poisoned meat was held responsible for the damage he caused. On the other hand a prefect w^ho shut up a factory while acting in accordance with instructions issued by one of the ministers in order to execute a law, could not be held responsible before the ordinary courts even though his act was not legal. The difference between these cases will at once be seen, though it is impossible to state it with the exactness of a mathematical formula.^ It will be noticed that the French rule as to the re- sponsibility of officials before the courts for damages caused by their illegal acts is at the same time narrower and broader than the English and American rule. It is narrower in that the ordinary courts are not allowed to decide finally the question of the juris- diction of the administration which is so important with us ; it is broader in that any purely personal act of the officer may be a ground for damages whether it was done in the performance of a discretionary duty or a ministerial duty. • A word must be said as to the position of the ministers. It seems to be the opinion of the best writers that they occupy a more protected position than do other officers. The same rule applies to them as to other officers so far as regards the acts which cannot be considered as purely personal in character. The courts may not de- limit the sphere of their competence or determine their * Laferri^re, La yuridiction Administrative, I., 595, et seq. L 176 CONTROL OVER THE ADMINISTRATION. jurisdiction. But, further, tlie principle of parliament- ary responsibility is believed to cover in great measure their purely personal acts, for which they may be held responsible by the courts, only with the consent of the house of the legislature to which has been given by the constitution the right of impeachment/ b. Modifications of the Roman rule in Germany, — After the breaking up of the empire in 1806 the only judicial control that could in the nature of things be exercised over the officers of the government was to be exercised by the courts of the different states, which came into being as a result of the dissolution of the empire. These courts were held by judges who, owing to the permanent tenure of all the officers of the gov- ernment, had a practical independence of the adminis- tration. The old German rule as to the responsibility of the officers of the administration to the courts '^ was felt to be inconsistent with the needs of an administra- tion able to cope with the problems presented in this century. It was feared that the administration would be unable to perform its work. Therefore the old Roman principle was reintroduced into Germany, or at any rate into Prussia, which may be taken as a type, and it was provided that no individual might sue an officer of the administration before the consent of an administrative body called a competence court had been given.^ As in France the responsibility of officers for damages was not in theory destroyed but the bring- ^ Laferri^re, La yuridicHon Administrative, I., 6io. ^ This was, it will be remembered, that they were responsible for damages resulting from every violation of their duties and for negligence in their dis- charge as well as for the positive overstepping of their jurisdiction. (Gneist, Das Englische Verwaltungsrecht, 1884, I., 379, note.) This rule resulted in a wider responsibility than that asserted by the English rule, which relieved officers from responsibility for negligence in the performance of a discretionary act within their jurisdiction. ^ Prussian Law, Feb. 13, 1854. CONTROL OF THE CIVIL COURTS. 177 ing of a suit was simply made more difficult. But, as in France, the way in which the law was applied did not give satisfaction ; and when the present empire was founded the attempt was made to do away with the evils which experience had shown were connected with the adoption of such a method of protecting the independ- ence of the administration. The law of Jan. 27, 1877, which organized the imperial judicial system, provided that the body whose consent was necessary before the suit could be brought, should be judicial in character, i, e., either the highest administrative court, if there were one in the particular member of the empire, or if there were none, then the imperial court at Leipsic. In other words the preliminary question of the juris- diction of the officer is to be decided by a body judicial in character and completely independent of the admin- istration. The result of this development is that the responsibility of German officials to individuals for the damages they may have committed either through a violation of the law or through their negligent action is broader than in any other of the countries whose law is being considered. The old Grerman principle has, notwithstanding the temporary adoption of the princi- ples of the E-oman law, retained a greater influence in the land of its birth than in any of the other countries ; and this method of judicial control over the administra- tion is really the most important means by which the ordinary courts may force administrative officers to obey the law and act efficiently and justly.^ It is, how- ever, to be noticed that on account of the separate de- cision of the preliminary question of jurisdiction the exercise of this control of the civil courts is more difficult than in either England or the United States. ^ Cf. Bornhak, Preussisches Verwaltungsrecht, II., 42, et seq. CHAPTER III. CONTROL OF THE CRIMINAL COURTS. /. — Power of the police courts, . The control which the criminal courts may exercise over the administration is exercised in two ways. In the first place these courts may be allowed, and in most systems of administration are allowed, to decide actions brought by the administration against individ- uals, either for violation of those rules of administrative law which have been put into the form of simple abso- lute unconditional commands, including the ordinances of the administrative authorities, and whose violation has been by law made punishable criminally, or for unlawful resistance to officers discharging their duties. In all such cases the criminal courts have the right to refuse to punish the person prosecuted, on the ground that the administration has exceeded its powers and has acted without jurisdiction. They thus delimit the sphere of administrative action and competence and force the administration to keep within the bounds set by law. The law of all countries is in theory the same in this respect. But in England and the United States the power of the criminal courts is rather greater than on the continent, on account of the fact that so many of the rules of the administrative law of those countries 178 CONTROL OF THE CRIMINAL COURTS. 179 have been put into the form of simple absolute un- conditional commands. //. — Power of the criminal courts to punish officials. Method of prosecution. The second way in which the control of the criminal courts is exercised over the administration is by decid- ing criminal prosecutions brought not against individuals but against officials to punish them for the criminal vio- lation of their duties. The extent and efficacy of this method of control depend, in the first place, on the con- tent of the criminal law, i, e. on the extent to which the violation of official duty is punishable criminally, and, in the second place, on the method of prosecution.^ For while the content of the criminal law may be such as to provide for a large control over the administration, if the method of prosecution give the administration a large discretion as to when the control shall be exer- cised, — ^if the courts or individuals have little power of initiating and carrying on a prosecution against an officer — the control of the criminal courts may amount virtually to nothing. There are two methods of conducting prosecutions, the one through a private prosecutor, the other through a public prosecutor. So far as the control of the criminal courts aims at the protection of private rights the system of private prosecution will undoubtedly produce the best results ; so far as that control aims at the effi- ciency of the administration, as it must to a certain extent in all countries and as it does particularly in the United States, the system of public prosecution is capable of greater efficiency, since it is certain that ' For the content of the criminal law see supra, II., p. 79. i8o CONTROL OVER THE ADMINISTRATION. private prosecutors usually initiate prosecutions only in those cases where their private rights have been violated. 1. Private prosecutor, — As the English system of criminal procedure was formed with the special pur- pose of offering protection to private rights, it is only natural that we should find that it has always made provision for a private prosecutor and, indeed, has mainly relied on this method of prosecution. Even the law which within quite recent years has made provision for public prosecutors ^ still permits the private prose- cutor also to act. It guarantees no monopoly of the power of prosecution to the administration. In order, however, to ensure the bringing of prosecutions the English law has always regarded the power of prose- cution, which was guaranteed by the system to indi- viduals, as a duty which the courts could enforce by binding over the individual complainant to prosecute. The action of the public prosecutor in England is simply subsidiary and is generally made use of for those cases where the incentive to private prosecution is not strong. The usual method of prosecution is complaint of the individual to a committing magistrate who makes a preliminary examination of the prisoner and sends the case up to the grand jury. This body then proceeds by indictment. It is not, however, confined in its action to such cases, but may proceed of its own motion in regard to matters of which it has personal knowl- edge. Sometimes also it is proper for individuals to make their complaint direct to the grand jury, but in some instances in the United States this has been held to be improper.^ Public prosecutors are permitted to * The Director of Prosecutions Act of 1879, 42 and 43 Vict., c. 22. • Thus cf. McCuUough v. Commonwealth, 67 Pa. St. 30. CONTROL OF THE CRIMINAL COURTS. i8i proceed of their own motion by means of criminal information. This power is, however, made use of against officers only in case they have acted from cor- rupt motives, or have been guilty of manifest acts of oppression and vrilful abuse of power. This power is usually exercised by the officers of the Crown such as the attorney general or the solicitor general, and not so much by the directors of public prosecutions, whose main duty is to conduct the prosecutions after they have once been initiated.^ The further power is given to the public prosecutors to quash a prose- cution by entering a nolle prosequi. This power does not, however, put the control of prosecutions into the hands of public prosecutors. For they act under the control of Parliament and public opinion ; and the entering of a nolle prosequi is no bar to another in- dictment.^ 2. The United States dist/rict attorney, — The basis of the American system of prosecution is the same. It has, however, received impoi*tant modifications owing to the very general introduction of public prosecutors, i, e. the district attomies or similar officers, who are to be found in nearly all the commonwealths as well as in the national administration. As the establish- ment of this office was due very largely to the desire to prevent inconsiderate prosecutions, great discretion is given by the decisions of the courts to the district at- tornies in the initiation of prosecutions, although a monopoly of such power is not given to them. That is, the individual is still permitted to make his com- plaint before a committing magistrate, when the grand 'SeeGneist, Das Englische Verwaltungsrecht, 1884, 383. ' Cf. U. S. V. Shoemaker, 2 McLean, 114. 1 82 CONTROL OVER THE ADMINISTRATION. Jury will act in very much tlie same way as in the old English method. Some of the cases, however, would seem to indicate that the individual has no longer the right to go before the grand jury and make his com- plaint directly to them.^ This power has been re- placed by the power given to the public prosecutor to present cases himself to the grand jury. As in all cases the management of the case before the grand jury is largely in the hands of the public prosecutor, the result is that for the punishment of almost all crimes which the officers of the administration may commit, the action of the public prosecutor has become a practical necessity.^ This is particularly true because of the fact that the conduct of the prosecution, after it has once been initiated, is largely, indeed almost en- tirely, in the hands of the public prosecutor. Some of the cases on this point go so far as to intimate that the participation of other counsel than the public prosecu- tor in a prosecution for crime is absolutely forbidden ^ ; while others declare that though other counsel, i, e. counsel representing some private individual interested, may be admitted, their admission is a privilege which may be granted or refused by the district attorney and not a right which the individual may demand by ap- plication to the courts.* All these cases are decided as a result of the application of the principle that the prisoner is to be protected from malicious prosecution ' McCullough V. Commonwealth, 67 Pa. St., 30 ; Fout v. State, 3 Haywood, Tenn., 98 ; Commonwealth v. Simons, 7 Philadelphia, 167. ^ Ibid.; Peacock v. State, 42 Ind., 393; Hite v. State, 9 Yerger, Tenn., 198 ; see also Wharton, Criminal Pleading and Practice, sec. 354. ' See People V. Hurst, 41 Mich., 328. * Commonwealth v. Williams, 2 Cushing, Mass. , 582 ; Commonwealth v. Knapp, 10 Pickering, Mass., 477 ; Commonwealth v. King, 8 Gray, Mass., 501. CONTROL OF THE CRIMINAL COURTS. 183 on the part of the individual, and that, therefore, the public prosecutor has a monopoly either of initi- ating or of conducting the prosecution.^ There seems to be no case which directly answers the question whether the courts, in case a district attorney refused without reason to bring a prosecution against an of- ficer of the government, might appoint an attorney to conduct such prosecution. This has, however, been provided in some cases by statute.^ Thus a statute in Pennsylvania provides that if the district attorney shall neglect or refuse to prosecute in due form of law any criminal charge regularly returned to him or to the coui*t of the proper county or if, in case of the admission of the counsel of a private prosecutor, the district attorney shall differ with him as to the conduct of the proceedings, the court on the petition of the private prosecutor may direct the private counsel of the prosecutor to conduct the entire proceeding. Fur- ther it is to be noticed that, as a rule, the public prosecutors have the right to quash a prosecution by the entering of a nolle prosequi. Some of the cases hold that the action of the public prosecutor in so do- ing is subject to the control or consent of the court,^ but most of the cases insist upon the necessity of this consent only after a jury has been empanelled, their reason being to protect private rights, L e, the rights of the prisoner. For as had been said, a nolle prose- qui is no bar to another indictment. They seldom seem to require the consent of the court in order to ^ See also Gonzales v. State, 26 Texas, 197, which seems to recognize in the courts a power for "special reasons," which are not indicated, to appoint counsel for the prosecution of suits ; cf. Wharton, op. cit.y sec. 555. 2 See Pa. L., March 12, 1868. 3 State V. Moody, 69 N. C, 529 ; Stathaxn v. State, 41 Ga., 507. i84 CONTROL OVER THE ADMINISTRATION. prevent the public prosecutor from rendering an in- dictment or other prosecution nugatory.^ In some cases, however, the power of the public prosecutors to enter a nolle pi^oseqid has been taken away altogether by statute, and the indictment may be quashed only as a result of the action of the court on a motion to dismiss made by the public prosecutor.^ This method of prosecution tends of course to relax very greatly the control over the administration exer- cised by the criminal courts. For the public prosecutor, in whose hands is practically the power both to initiate and conduct prosecutions against officers of the adminis- tration, is, whatever be the method of organizing the system, in more or less close affiliation with the admin- istration and is liable to over-estimate the importance of administrative independence even to the detriment of private rights and in some cases of administrative efficiency. We have had in our administrative his- tory too many instances of the refusal on the part of the district attorney to proceed with the prosecution of public officers, or of such negligence on his part in conducting a prosecution which he has been forced by public opinion to initiate, that officers guilty of official and other crimes have been able to escape responsibil- ity for their actions, altogether. The " pigeon-holing " of indictments has become altogether too common in the case of officers or of persons in close relation with the administration. The danger is undoubtedly greater ^ See U. S. V. Shoemaker, 2 McLean, 114 ; U. S. v. Stowell, 2 Curtis C. C, 153 ; State v. I. S. S., I. Tyler, Vt., 178 ; Commonwealth v. Tuck, 20 Picker- ing, Mass., 356; Commonwealth v. Briggs, 7 Pickering, 716, 179 ; Ex parte Donaldson, 44 Mo., 149 ; State v. McKee, i Bailey, 651 ; State v. Kreps, 8 Alabama, 951. ' See e. g. N. Y. Code of Criminal Procedure, sees. 668-671. CONTROL OF THE CRIMINAL COURTS. 185 when the public prosecutor is dependent in his tenure of office and in his action upon the administration than it is where he is elected by the people ; but even in this latter case his party affiliations are so strong as often to preclude the probability of an energetic prose- cution of official criminals. One way of organizing the prosecuting force, which would remedy these defects, would be to have the public prosecutor appointed and dismissed by the courts, or at least to provide, as has been done in Pennsylvania, that, in case of the neglect of the public prosecutor, the courts may appoint attor- nies to conduct the prosecution. In the system of public prosecution adopted in the national administration all public prosecutors are appointed by the President with the consent of the Senate and dismissed by the President alone. As the President is, as has been shown,^ the head of the national administration, the administration has it in its power practically to prevent the efficient conduct of any prosecution against any officer of the administra- tion. It may further prevent the filing of any informa- tion against officers of the administration, though it cannot prevent the finding of an indictment. For the Kevised Statutes provide that a circuit or district judge may in his discretion order a venire facias to issue, by which a grand jury will be summoned. This body may then find an indictment,^ which it will be the duty of the district attorney to prosecute.^ But as the district attorney commonly has charge of the pro- ceedings before the grand jury, will conduct the case after it has been initiated, and has the power to enter > Supra, I., p. 69. •U. S. R. S., sec. 810. * Ibid., sec. 771. i86 CONTROL OVER THE ADMINISTRATION. a nolle 'prosequi practically in his discretion^ his negli- gence or unwillingness to act, or that of the adminis- tration which he represents and upon which he is dependent, may often render very difficult, if not abso- lutely impossible, a conviction of an official of the national administration for a criminal violation of his duty. Finally it is said that the President may order the entering of a nolle prosequi at any stage of criminal proceedings.^ In the commonwealths, however, the public prosecutors are usually elected by the people of the counties and the danger is not so gre^t, though even here it is a real one on account of the party affilia- tions of the public prosecutors which must necessarily have a great influence on their action. 3. Public prosecutor, — While 'England is the home of private prosecution, which also lies at the basis of the system in the United States, France is the originator of the modern institution of public prosecu- tion. Originally founded in France with the purpose of merely supplementing the activity of the private prosecutor, which the old Teutonic law provided, the office of public prosecutor has in France completely replaced the private prosecutor, who no longer exists. The code of criminal procedure provides ^ that the pub- ^ lie prosecutor alone has the right to initiate criminal proceedings. During the period of the absolute monarchy the public prosecutors were appointed by the King, who thus had in his hands the control of all prosecutions against officers of the administration. After the revolution, during the short period of decen- tralization, the least important of these public prose- ' U. S. V. Stowell, 2 Curtis, C. C, 153. * 5 Opinions Att'y Gen'l, 729. ' Art. i. CONTROL OF THE CRIMINAL COURTS. 187 cutors were elected by the people. But in 1800 * the election of public prosecutors was done away with, and appointment became the rule. Now all public prosecutors, with the exception of the mayor, who, it will be remembered, may be removed by the President of the republic, and who is the public prosecutor in the most unimportant districts for police oifences, are appointed and removed by the President of the republic. They all act under the direction and control of the minister of justice. They are also to a small extent under the control of the courts to which they are attached. The courts may thus send orders to them, supervise their acts, and see that these are regular. The actual disciplinary power which the courts have over them would, however, seem to be quite small. Indeed the only cases in which the law says that the public prosecutors must act, seem to be where the complaining parties initiate civil proceedings against officers at the same time that they endeavor to get the public prosecutors to initiate criminal proceed- ings, as may be done under the French law. In such cases the judges must send on the criminal complaint to the public prosecutors who, it is said, are bound to act.^ The effect of such a method of prosecution upon the control of the criminal courts over the administra- tion is to put almost completely into the hands of the central administration the decision as to when it shall be exercised. The control of the criminal courts in France over the administration amounts therefore to very little ; in time of political excitement it would be impossible to make use of it at all. ' Constitution of 22 frimaire, a« VIII, art. 53. ' Block, Dictionaire de la Politiqtu^ II., 317, sub verba Ministhre public 1 88 CONTROL OVER THE ADMINISTRATION. The old German method of criminal prosecution gave to the criminal courts an almost complete control over all criminal proceedings. The procedure before the courts was an inquisitorial procedure as a rule, — a procedure in accordance with which the courts were the prosecutors and were set in motion by the com- plaint of any individual who had been injured by the commission of a crime. The criminal courts, thus having the whole matter of criminal prosecutions in their hands, and being in their tenure practically inde- pendent of the administration, offered to the individual as complete a remedy against the illegal ai^a criminal action of the administration as could well be desired or devised. The position of the criminal courts was so strong that they could, and indeed more than once did defy the prohibitions of the executive to hear criminal complaints against officers of the administra- tion.^ In Prussia, however, during this century French institutions were copied in this respect as in so many others. Soon after the revolution of 1848 a royal or- dinance^ took away from the courts all power of criminal prosecution and gave it to the public prose- cutors who were then provided and who were placed completely under the control of the ministry. This ordinance thus destroyed all responsibility of the offi- cers of the administration before the courts for criminal actions, and permitted the ministry to violate with impunity the rights of individuals by allowing officials to go scot free who had under its direction violated the law. This condition of things was aggravated by the law of Feb. 23, 1854, which did so much to weaken the civil responsibility of officials.^ This law provided ' Gneist, Das Englische Verwaltungsrecht, 1884, 383, note. «0f date Jan. 2, 1849. ' Supra, II., p. 176. CONTROL OF THE CRIMINAL COURTS. 189 that before even the public prosecutor could initiate criminal proceedings against officers of the administra- tion, the competence court at Berlin, which was prac- tically under the control of the ministry, should first decide that there was a proper case for criminal prose- cution, a " zur SPrafverfolgung geeigneter JFaEP The abuse which was made of this power was so marked — it resulted in destroying all control possessed by the criminal courts over the administration — that after the empire was established it was provided : First, that the preliminary decision necessary before an officer of the administration can be prosecuted criminally ^ shall be confined to the question whether such officer has violated his duties, and shall be rendered by a really independent body of a judicial character, i. e, either by the Imperial Court at Leipsic or by the highest ad- ministrative court, if there is any, whose members must be independent in tenure of the administration ; and second, that, while the public prosecutors are still in principle to retain their monopoly of criminal prosecu- tion where this is provided by local statute, still in case they refuse to act, the courts may on the proposition of an interested party initiate the proceedings and ap- point an attorney to conduct them.^ The result is that while the formalities to be complied with before a suit may be brought against an officer of the administration, are in some districts rather formidable, the courts and not the administration have in their hands the initia- tion and the conduct of such proceedings. * It is to be noted that many of the members of the empire do not require such a preliminary decision, though Prussia does. ' Code of Criminal Procedure, sees. 169-175 ; Cf. Gneist, loc. cit. This seems to be somewhat the same method which was adopted in Pennsylvania by L. March 12, 1868, supra, II., p. 183. CHAPTER IV. THE ADMINISTRATIVE JURISDICTION IN ENGLAND AND THE UNITED STATES. /. — Characteristics of the administrative jurisdiction in general. The direct judicial control over tlie administration which has so far been considered, has been found in the remedies offered to individuals against officers to obtain satisfaction for the commission of an illegal act. It has been seen how careful the law in most countries is to limit both the civil and the criminal responsibility of officials in order to protect them from vexatious suits. It often requires practically an absolute over- stepping of their jurisdiction or corruption where they have acted within it, in order to found the responsibil- ity, as in England and the United States, or where it has acknowledged such a responsibility in a wider form, as in France and Germany, it has been very care- ful to make sure that the courts will make moderate use of their power to determine the question of juris- diction ; in all cases makes it much more difficult to sue officers of the government than to sue ordinary private persons ; and all but denies any responsibility of the government for the tortious acts of its officers. But even were this method of judicial control more easily exercised than it is, it would be found in many 190 ADMINISTRATIVE JURISDICTION, 191 cases to be ineffectual. A civil suit for damages against an official may be an altogether inadequate remedy, because damages will not in some cases be an adequate means of relief, and because, even if they were, the official sued may not be the possessor of enough property to satisfy a judgment. Again, the successful prosecution of a criminal suit against an officer may have value in tempering the future conduct of officials but does not result in any actual improve- ment of the condition of the individual whose rights have been violated. In both cases a right may have been violated and adequate satisfaction has not been made. Therefore, were the remedies which have been mentioned the only means which the courts had to control the actions of the administration in the interest of private rights, the judicial control over the adminis- tration would be quite incomplete. Some means must be provided by which the courts may directly control the acts of the administration. It may be of vital im- portance to the individual or to the public that a thing be done which the law says shall be done. It is not just to tell an individual that he must wait until his right has been violated and then sue the proper official for damages, or even prosecute him criminally. The individual desires a definite thing done by the adminis- tration which the law says shall be done. Again it may be of vital importance that an officer be prevented from doing an act which he threatens to do, or that a decision which is regarded as unfair or illegal be reviewed and annulled or amended. Here, for the same reason as before, it is not right to force the indi- vidual to rely on his power to sue the officer in dam- ages or prosecute him criminally. 192 CONTROL OVER THE ADMINISTRATION. In all these cases, if individual rights are to be adequately protected against the administration, some method of judicial control must be devised in addition to those already mentioned. Some means must be offered of reaching the acts and not the persons of the officers of the administration. The various remedies which the law offers against the acts of the administra- tion form what may be called the administrative juris- diction. For through the application of these remedies the courts take cognizance and jurisdiction of adminis- trative acts. Such a jurisdiction may be formed in two ways. It may be granted to the ordinary courts, or special courts may be formed for its exercise. The former method is that which has been adopted in Eng- land and the United States. The latter is that which has been adopted very generally on the continent of Europe. //. — History of the English method. 1. History to the heginning of the eighteenth century. — The English administrative jurisdiction, whose main principles have been adopted in the United States, is simply an outgrowth of the original system of adminis- trative control. The Norman political system made no distinction between governmental authorities. All powers of government were consolidated in the hands of the Crown. First to be differentiated was the legis- lative authority, the Parliament. But for a long time after the differentiation of Parliament there was almost no legal distinction between the position of the officers for the administration of justice and that of the officers for the administration of government. Indeed most important officers discharged functions in both branches, ADMINISTRA TIVE JURISDICTION. 1 93 and all alike were regarded as merely the servants of the Crown. Some, it is true, were engaged mainly in the application of the private law, others were engaged mainly in the application of the public and administra- tive law. But all were officers of the Crown, which directly or indirectly could remove them all from office and could dictate to them what should be the decision of the cases which were brought before them.* To the officers of one of the courts, viz.^ the court of king's bench, which was regarded as occupying a superior position because the Crown by a fiction of the law was supposed always to be present in it,'^ was given a super- visory power over all other authorities.^ If any one was aggrieved by an act of a subordinate officer of the Crown he had the right to appeal to the Crown, who was the fountain of justice,^ and such an appeal went to the court of king's bench. At first it seems to have gone to the Curia Regis or King's Council, before the development of the court of king's bench.^ Indeed, after the development of the king's bench, when with the usual habits of judges the members of this court became very technical in their application of the law, appeals went in many cases directly to the Crown and were attended to generally by the chancellor or the council. For the King at the time of the formation of the court of king's bench specially reserved to himself ' Gneist, English Constitutional History, I., 391 ; High, Extraordinary Legal Remedies, 2d Ed., 5. As to the influence of the Crown over the decisions of the judges even, witness the famous case of John Hampden in the court of the Exchequer. * See as to the origin of this fiction Stubbs' Constitutional History, I., 487, 601, II., 266 ; cf, Blackstone's Commentaries, III., 41. 'Gneist, Const. Hist., I., 386, citing Bracton. ^ See Stubbs' op. cit., II., 254 ; Palgrave, King's Council, 61. ^ I Ryleys' Pleadings, 534 ; Abbreviatio Placitorum, 21. VOL. n — 13 194 CONTROL OVER THE ADMINISTRATION. the decision of particularly difficult cases.^ Frora these reserved judicial powers grew up the court of chancery as well as other courts.^ In answer to such appeals the court of king's bench issued in the name of the Crown certain writs directed to the officer whose decision was complained of, and so formed as to afford the desired relief. Though these writs were originally issued from the office of the chancellor,^ the court soon obtained the right to issue them directly .^ These writs were named from the most prominent words in them — words which largely expressed the purpose of the writ. Thus, if anyone appealed to the Crown to force a recalcitrant officer to do something which the law of the land com- manded the officer to do, the writ which was issued in answer to the appeal was called the writ of mandamus.^ But at the same time that the court of king's bench was developing these special remedies, which became known as extraordinary legal remedies or prerogative writs, the chancellor, the keeper of the King's con- science, was, through the exercise of the reserved judicial .powers of the King, also developing a series of special remedies called equitable remedies, the most important of which, from the point of view of admin- istrative law, was the bill of injunction. Originally, however, the injunction does not seem to have been made use of commonly against officers. While most of the writs issued by the royal courts were issued to ^Stubbs, op. cit., I., 487. ' Ibid., 601-603. ^ Palgrave, op. cit., 8. * Gneist, Const. Hist., I., 394; Palgrave, op. cit., 16, 17 ; Reeves, History of the English Law, II., 394, 507, 605. 'The word " mandamus" was applied originally to all the commands of the King, but was later confined to the writ issued by the court of king's bench. — High, Extraordinary Legal Remedies, 5. ADMINISTRATIVE JURISDICTION. 195 litigants upon proper demand de cv/rsu^ and were known as writs ex dehito justitice, the writs by means of which the court of king's bench exercised its super- visory powers over the other authorities do not seem to have become, in early times at any rate, writs of right, writs ex dehito jitatitioe^ but were issued only in extraordinary cases when some gross injustice was done. They were known, therefore, as "prerogative vn-its." The same was practically true of the equitable remedies, and particularly of the bill of injunction. Further on the return to these writs, generally only questions of law were considered. They were made use of simply to keep the lower authorities within the bounds of the law, and could not be used, after the practice in regard to them became crystallized, to re- view any question of fact or of expediency. It there- fore became necessary to develop some further remedy, unless the lower authorities were to be permitted to decide such questions free from all control. Such a method was found in the power which was granted to the individual to appeal to the Privy Council. Such appeals the council might hear as a result of the fact that the King granted to a division of it, viz., the star chamber a portion of his reserved judicial powers. This body acted as the administrative superior of the royal authorities in the localities, and on appeal to it ^ questions of fact and expediency, as well as of law, could be considered.* Formed in the time of Henry YII to control the nobility, who had grown turbulent during the wars of the E-oses, it served at first to pro- tect the weaker classes of the community against the ^ Blackstone, op. cit., IV., 266 ; Palgrave, op. cit., 57-61, 101-108 ; Stubbs, op. cit., I., 603. 196 CONTROL OVER THE ADMINISTRATION. arbitrariness of the administrative authorities, which were largely chosen from the nobility*; but it was later, viz.^ under the Stuarts, used in such a way that it was abolished on the occasion of the revolution in 1640.^ In order to offer an appeal similar to the one which disappeared on the occasion of its abolition, it was provided in a series of statutes that the court of quarter sessions of the justices of the peace, which had been theretofore mainly an administrative authority for the purpose of county administration, could hear and decide appeals from those decisions of the justices of the peace, acting singly or in petty and special ses- sions, which affected property and the right of personal liberty.^ There was thus formed for the decision of questions of fact and expediency, as well as of law, an administrative court in each county, which came finally to have a very wide power of control over the acts of subordinate administrative officers. Its members fur- ther would certainly have special knowledge of the law they had to apply and of the conditions of admin- istrative action, since they were engaged in other capacities as administrative officers. Further the commission of the justices of the peace enjoined upon them in difficult cases to take the advice of the royal courts. This came finally to be done by " stating a case " which was agreed upon by the justices and the parties before them, and which was then sub- mitted to the royal courts, and finally decided by them.* In consequence of these facts, one of the writs which were originally issued by the court of king's bench, ^ Supra, I., pp. 164, 196. "^ II Car., I., c. 10. *See Smith, Practice at Quarter Sessions, London, 1882, title, Appeals; Gneist, Das Englische Verwaltungsrecht, 1884, 397. * Smith, op. cit., 518. ADMINISTRA TIVE J URISDICTION. 1 97 viz., the certiorari^ lost mucli of its earlier importance in England ; and we find that statute after statute was passed which prohibited its use as a means of appeal- ing from the acts of administrative officers.^ But up to the coming to the throne of the Orange- Stuarts in 1689, all officers, whether judges or admin- istrative officers, held their office at the will of the Crown. There was no judicial tenure as there was at the time in both France and Germany. In this fact, and in the existence in the Crown of reserved judicial powers, are probably to be found the reasons why the Crown permitted such a control over the administration to be given to the courts. For the Crown could exer- cise at any time a strong personal influence over the judges of the courts; and if it was found that the administration of the law was becoming so technical as to hamper the action of the administration, the Crown could at any time exercise its reserved powers and transfer any matter to a newly created and more pliable authority.^ In 1701, however, all this was changed. The act of settlement made the judges independent of the royal power, and the whole tendency of English develop- ment was to make the justices of the peace actually, though not legally independent of the Crown. An attempt by Lord Somers during the reign of William III to coerce, through the power of dismissal from office, numerous justices of the peace raised such a storm of opposition that no later ministry has dared to make use of such a power.^ * Gneist, Das Englische Verwaltungsreckt, 1884, 406. ' This was actually done in several instances, as has been shown. Cf. Pal- grave, op, cii., 57-61. 2 Supra, I., p. 236. 198 CONTROL OVER THE ADMINISTRATION. At the same time that the tenure of the judges and the justices became independent of the Crown their administrative jurisdiction remained essentially the same, with the result that the control which might before have been regarded as merely a part of the administrative control became absolutely judicial in character, i, e. was exercised by authorities independent of the administration which was to be controlled. 2. History in the United States. — Such was the con- dition of the English administrative jurisdiction at the time the American colonies were founded. At first, indeed, the American judges, like the English judges of the same period, were both in tenure and action under the control of the executive which they were to control, but soon their tenure was assured both against the executive and the legislature, so that from a very early time the higher courts exercised a really judicial control over the actions of the administration. The justices of the peace did not, however, at first become independent of the administration in tenure. And this was probably the reason why our courts of quarter sessions were not able to develop any very large ad- ministrative jurisdiction. The appointment early in our history of other officers for purely administrative purposes relegated the justices to the position of infe- rior judicial officers who have a police jurisdiction and a minor civil private law jurisdiction. They were left very few administrative duties to perform. Notwith- standing the fact that the justices of the peace in the United States later on obtained a tenure independent of the administration, in that they became generally elected by the people for a fixed term of office, they never got anything like the same administrative juris- ADMINISTRATIVE JURISDICTION. 199 diction that was given to their English brothers. It is true that in special instances we find appeals from the decisions of administrative officers allowed to the courts of the justices or their successors, the county courts. Especially is this true in some of the southern commonwealths and in Pennsylvania. But it may safely be said that there has never been, and is not now in the United States any at all important admin- istrative jurisdiction except such as is to be found in the writs which the higher courts, as a result of their being the heirs of the English court of king's bench, have the right to issue. We have lost an important part of the English administrative jurisdiction — par- ticularly important because by its means a host of questions of fact and of expediency could be reviewed on appeal. With us such questions are decided finally by the administration, with the result that a most precious means of protecting individual rights has been lost. CHAPTER V. THE ADMINISTRATIVE JURISDICTION OF THE HIGHER COURTS. /. — At common law, 1. Tlie special remedies, — The most important of the special remedies developed by the royal courts were five in number, each one corresponding to a particular need which experience had shown to exist. They were the mandamus^ to force the administration to do what it had illegally refused to do ; the prohibition or the '> injunction, to prevent the administration from proceed- ing to act where it ought not to act ; the certiorari, to /\ review a decision already made by the administration, to the end that such decision might be annulled or amended ; the habeas corpus ad subji-ciend/am, to bring a the matter of an arrest up before the courts, so that the person arrested might be set at liberty in case the ad- , ministration had acted illegally ; and the qiio warranto, to prevent the usurpation of a royal franchise or privi- lege. This was later so shaped as to be made use of to decide the question, who was rightfully entitled to an office of trust and profit. Logically there was no need for the development of these last two remedies, ^ as the same result might be reached through the use of 200 JURISDICTION OF THE HIGHER COURTS. 201 one of the other remedies.^ But the questions of illegal arrest and imprisonment and the usurpation of franchise or office were believed to be so important that as a matter of fact special remedies were de- veloped for these matters. What was originally a somewhat informal complaint on the part of the indi- vidual that injustice had been done, became finally, as in the case of all the writs issued by the royal courts, a demand for the issue of a special remedy or wiit such as the courts had fallen into the habit of issuing. It was but a short step under such conditions for the courts to hold that the demand for a special remedy did not justify the court in issuing any other writ than the one demanded. While the appeal to the court might be made against any act of the administration and the administrative jurisdiction was not enumerated in the sense that a special statutory authorization was necessary in each case of its exercise, the remedies which could be asked for in particular cases were gradually enumerated in the decisions of the courts. A simple complaint of the denial of justice was finally insufficient.^ The decisions of the courts have thus be- come quite technical in their character and hold that a writ which may be properly made use of for one pur- pose may not be made use of for another. Thus the ' Thus in New York the haheas corpus has as a result of the provisions of the Code of Civil Procedure been somewhat replaced by the certiorari to inquire into the cause of detention. Sec. 2015 ; cf. Church, Habeas Corpus, 330 et seq. 'Viner's Abridgement, 2d Ed., xv., 185, citing Barnwell's Chancery Rep., 377, anno 1740, where the plaintiff asked for a bill in chancery and was told to ask for a mandamus ; also p. 200, citing Queen v. Hungerford, ii Mod. Rep., 142, where quo warranto was asked for and the applicant was told he could have a mandamus. See also p. 206, citing 12 Mod. 196 ; and p. 208, citing 11 Mod., 254. 202 CONTROL OVER THE ADMINISTRATION, mandamus is not the proper writ to try the title to office/ Neither the mandamus nor the injunction is the proper remedy to review the decision of a sub- ordinate administrative authority ; this is to be done by the certiorari} It has therefore become necessary for the applicant for the exercise of the administrative Jurisdiction of the higher courts to make it certain, be- fore he applies for the issue of any particular writ, that he is asking for the proper remedy. For if he does not he will be non-suited. 2. Prerogative character of the writs, — In the sec- ond place, owing to the fact that these writs were developed as a result of the exercise of the reserved judicial powers of the Crown they have never become writs ex debito justitice, that is the individual may not have them merely for the asking, as is the case with the writs beginning ordinary actions. The courts may refuse in their discretion to issue them.^ From a very early time, however, on account of the importance of maintaining in its integrity the right of personal liber- ty, the habeas corpus has been regarded as a writ ex debito justiticB ^. e, to be issued on probable cause shown ^; and the Habeas Corpus act,^ provided that the judges should issue it under a penalty for refusal. With this exception the rule was that these writs were, as the law expressed it, preroga- tive in character. The tendency of the more mod- ern decisions as well as of the statutes passed on this ^ People V. Corporation of New York, 3 Johnson's Cases, 79. ' Mowers v. Smedley et al., 6 Johnson's Chancery, 27 ; People v. Police Com- missioners, 43 Howard's Pr., 385. * See Viner, op. cit. sub verba Certiorari^ iv., p. 345, citing 8 Mod., 331 ; also King v. Barker, i Wm. Blackstone, 352. ^ Church, op. cit., 94 et seq. ^ 31 Car. II,, cap 2, X. ; Church, op. cit., 109. JURISDICTION OF THE HIGHER COURTS. 203 ^ subject has in both countries been to assimilate these writs more and more to ordinary actions which have no prerogative character at all. This tendency has been more marked in the United States than in Eng- land/ In some cases too the writs have been abolished altogether and ordinary actions substituted for them. This is true in New York of the quo warranto^ and the information in the nature of a quo warranto which soon took its place. Here, however, the individual before the action can be brought must get the attorney general to move, who, it would seem, has the monopoly of the action; and it has been held that the courts may not force the attorney general to bring such action.^ Even in England, where the writs are regarded as more prerogative in character than here, the modifications in the procedure adopted of late years have resulted in a practically greater freedom and ease in obtaining the writs. Indeed in some cases, as the result of statutory provision, they have become really little more than ordinary actions. But notwithstanding the limitation of their preroga- tive character the courts, even of the United States, have large discretion in granting or refusing the application for the issue of most of the writs. In some cases the preliminary decision refusing the issue of the writ is not appealable even ^ ; and in no case will they issue them where there is any other adequate remedy.^ ^ High, Extraordinary Legal Remedies , passim ; cf. Commonwealth v. Deni- son, 24 Howard, U. S., 66. ^ Code of Civil Procedure, sees. 1948, 1893 ; People v. Fairchild, 67 N. Y., 834. ^ See People v. Stillwell, 19 N. Y., 531 ; People v. Commissioners, 82 N. Y., 506 ; People v. Hijl, 53 N. Y., 547. ^ Rex V. Water Works, i N. & P., 48 ; People v. Board of Apportionment, 64 N. Y., 627 ; People v. Betts, 55 N. Y., 660 ; High, Injunctions^ 3d Ed., sec. 28. 204 CONTROL OVER THE ADMINISTRATION. What is an adequate remedy is to be decided by tbe courts. They have held that a suit for damages against an official is not an adequate remedy, ^ but have inti- mated, at any rate, that a suit for damages against a municipal corporation, v^here damages were in the nature of things a perfectly competent means of relief, is an adequate remedy. ^ They have also held that the remedy by indictment of an officer was not an ade- quate remedy.^ 3. Tlie purpose of the writs. — The purpose of the writs is twofold. In the first place, they are issued mainly with the intention of protecting private rights ; in the second place, some of them may be made use of also for the purpose of the maintenance of the law regardless of the fact whether in the particular case a private right is attacked or not. Thus in the case of the certiorari it has been held that this writ may not be made use of simply for the maintenance of the law, that no one may apply for it unless he has some par- ticular interest in its issue which is greater than that possessed by the ordinary citizen.* The courts have, however, held vdth regard to the qvx) warranto that it may be issued on the demand of a citizen of responsi- bility 5 ; and the better rule would seem to be that in • People V. Green, 58 N. Y., 295. ^ Buck V. City of Lockport, 6 Lansing, 251. ' Queen v. Eastern Counties R'y Co., to Ad. & EL, 531 ; King v. Severn & V/ye R'y Co., 2 Barn. & Aid., 644 ; People v. Mayor of N. Y., 10 Wendell, 395 ; In re Trenton Water Power Co., Spencer, N. J., 659 ; Fremont v. Crippen, 10 Cal., 211 ; see also Mechem, Law of Public Officers, sec. 941, note 3. "* People V. Leavitt, 41 Mich., 470; People v. Walter, 68 N. Y., 403; People V. Phillips, 67 N. Y., 582 ; State v. Lamberton, 37 Minn., 362 ; Gran- ville V. County Commissioners, 97 Mass., 193. ^ Commonwealth v. Neeser, 44 Pa. St., 341 ; State v. Kammer, 42 N. J. L., 435; Commonwealth v. Commissioners, i S. & R., 380; State v. Martin, 46 Conn., 479. JURISDICTION OF THE HIGHER COURTS. 205 matters of public concern any citizen or taxpayer may apply for the mandamus} Further in the proper cases the officers of the administration may apply to the courts to force by these writs inferior officers to perform their duties.^ Finally as a result of the Habeas Corpus act passed in the reign of Charles II any one may apply for the writ of habeas corpus whether he has any par- ticular interest or not, that is, whether his own private rights are involved or not.^ This rule has been very generally adopted into the law of the United States and is undoubtedly due to the necessity of affording as complete a protection as possible to the right of personal liberty, to the necessity of the maintenance of the law on this subject. 4. Questions considered on the writs. — As a general rule the courts may not on these writs consider or review the questions of fact or expediency which have been decided by the administrative authorities. This is one of the most important general principles affect- ing the use of the writs and lies at the basis of nearly all the cases."* The principle is applicable whatever be the rank or character of the officer who is to be con- trolled. Be he never so humble if he have discretion that discretion he is to exercise free from any control ; be he never so influential he must act in accordance ^ People V. Collins, 19 Wendell, 56 ; People v. Halsey, 37 N. Y., 344 ; see also People v. Common Council of Buffalo, 38 Hun N. Y., 637. ' People V. Canal Board, 55 N. Y., 390 ; People v. Trustees, 54 Barb, N. Y., 480; Attorney General v. Boston, 123 Mass., 460; Wellington et al. Petition- ers, 16 Pickering, Mass., 87, 105. 2 31 Car. II., cap. 2, X. ; Church, op. cit., 93, * Rex V. Chichester, 2 El. & EL, 209 ; King v. Justices, 4 Dow. & Ry., 735 ; United States v. Seaman, 17 Howard, U. S.,225; Gaines v. Thompson, 7 Wal- lace, 347; People V. Commissioners, 30 N. Y., 72; Burch v. Hardwicke, 23 Grattan, Va., 51. An important exception is made in the case of the habeas corpus^ see Church, op. cit.^ c. xiii. 2o6 CONTROL OVER T'HE ADMINISTRATION. with the law. Thus the decision by a board of local highway commissioners as to the route to be taken by a highway may not be reviewed by the courts,^ while the refusal of the United States secre- tary of the interior to issue a patent for lands after all questions of discretion had been decided in favor of the applicant has been held to be the violation of a ministerial duty and may be overcome by application to the court.^ This rule is, however, subject to one or two exceptions. The questions of fact which have been decided by an administrative authority in decid- ing as to the title to office may be reviewed by the courts on either mandamus or quo warranto^ Fur- ther the courts will not permit administrative officers so to make use of their discretion as to make a deci- sion which is absolutely unsupported by the evidence but will on certiora/ri quash such decision.* Again the courts hold that where a statute provides that an officer may be removed from office for cause only, they have the right to control the discretion of the remov- ing officer in deciding what is cause.^ The courts, it is true, do not ground their decisions on any desire to control the discretion of administrative officers, but on the proposition that the question, what is cause, is not a question of discretion but a question of law. But this does not alter the fact that, as a result of these * People V. Collins, 19 Wendell, 56. ^ United States v. Schurz, 102 U. S., 378. See also People v. Beach, 19 Hun, N. Y., 259. ^State V. Garesche, 65 Missouri, 480; People v. Pease, 27 N. Y., 45. * People V. Board of Police, 39 N. Y., 506 ; People ex rel. Hogan v. French ; People ^;r rel. McAleer v. French, 119 N. Y., 493, 502. 'People V. Board of Police, 72 N. Y., 415 ; People v. Board of Fire Com- missioners, 73 N. Y., 437 ; State v. St. Louis, 90 Mo., 19 ; Stockwell v. Town- ship Board, 22 Mich., 341 ; see also Kennard v. Louisiana, 92 U. S., 480. JURISDICTION OF THE HIGHER COURTS. 207 decisions, the courts do exercise a control over tlie dis- cretion of administrative officers — and that too upon a point where many think that it is necessary that the administration should possess full and unlimited dis- cretion. Finally in several instances special statutes have been passed which expressly give to the courts a control over the discretion of the administration. Thus the present customs administrative act gives to the cir- cuit courts of the United States the power on a sort of statutory certiorari to reverse or amend the decisions even of fact of the board of general appraisers as to classification of articles for duty under the tariff acts.^ Thus also the legislature of New York has provided ^ that if the commissioners of excise in the larger cities refuse arbitrarily to issue a license for the retail sale of liquor to be drgnk on the premises, the party who has thus been refused a license may appeal to the courts for the issue of a mandamus to the commissioners to grant the license. Thus also the legislature of the same commonwealth has provided ^ that in case any person is aggrieved by the decision of the assessors as to the value of his property for the purposes of taxa- tion, he may have a certiorari on which the courts may reverse or amend the decision of the assessors on the ground both of illegality and of unfairness or dispro- portionality.* Finally for political reasons the courts have very generally laid down the rule that they will not exer- * U. S. Laws of 1889-90, c. 407, sec. 15. Here it is probably a remedy ex debito justiiice. « L. 1886, c. 496. 3L. 1880, c. 269. * See also New York Code of Civil Procedure, sec. 2140, which provides that the court in deciding on the writ of certiorari may consider the weight of the evidence. 2o8 CONTROL OVER THE ADMINISTRATION. cise their administrative jurisdiction where it brings them into actual conflict with the chief executive.^ The rule is clear as to the President of the United States, but is not so clear as to the governors of the various commonwealths.^ Most of the cases where the mandamus has been issued to the governor have been friendly suits where the governor has not objected to the jurisdiction ; indeed one of them holds expressly that the court will issue the writ of mandmnvs to the governor if he does not object.^ Where, however, the courts may issue the writs without coming into direct conflict with the executive they seem to have no objec- tion to issuing them, even if they will be forced to annul the acts of the executive/ Thus they have is- sued a habeas corpus to consider the validity of an act of the governor in the extradition of a fugitive from justice, and have decided that such act was not in accordance with the law.^ In the case of Ex parte Merryman, a case of habeas corpus, however, the writ absolutely failed of its purpose because the officer to whom it was issued was supported in his action by the President, and the court refused to take any further step on account of the danger of a conflict with the executive. Some of the commonwealths have endea- * State of Mississippi v. Johnson, 4 Wall., 475 ; Grier v. Taylor, 4 McCord, 206 ; People v. Hill, 13 N. Y. Supplement, 186 ; New York Law yournal^ April 13, 1891 ; affirmed on different grounds in 126 N. ¥.. 497 ; High, Ex- traordinary Legal Remedies^ 2d Ed., sec. iiS and cases cited. '^As to the mandamus see Cotton v. Ellis, 7 Jones, N. C. 545 ; State v. Chase, 5 Ohio St., 528. 3 People V. Bissell, 19 111., 229. As to the quo warranto see Attorney Gen- eral V. Barstow, 4 Wis., 567. ^ See People v. Piatt, 50 Hun, 454. ^People V. Curtis, 50 N. Y., 321 ; People v. Brady, 56 N. Y., 182 ; see also Ex parte Merryman, Taney, 246, 9 American Law Register^ 524; Ex parte Field, 5 Blatchford, 63. JURISDICTION OF THE HIGHER COURTS. 209 vored to extend this exemption from the operation of the administrative jurisdiction of the courts to the heads of departments. But this is not the best rule either in the United States or England, and is in conflict with the decisions of the United States Supreme Court.* 5. Distinction between legal and equitable remedies, — Besides these general rules which are applicable to all the remedies by which the administrative jurisdic- tion of the courts is governed there are a number of special rules with regard to each one of the remedies. Thus there is quite a distinction between the extraor- dinary legal and the equitable remedies. While the former are almost always issued where the act of the ad- ministration is absolutely illegal in character, the latter may be issued only in those cases where the applicant for the remedy can bring his case under one of the recognized heads of equitable jurisdiction, such as that the act complained of is a breach of trust, will result in irreparable mischief to real property or will lead to a multiplicity of suits.^ Further if we compare the injunction with the prohibition, whose purposes are largely the same, we find that the injunction appears to be, in the United States at any rate, the popular remedy. Although legally the courts have about the same discretion as to the issue of both of these reme- dies, as a matter of fact they seem to issue the injunc- tion much more easily than the prohibition, and indeed in some of the commonwealths make use of the pre- • See U. S. V. Schurz, 102 U. S., 378. There is also conflict on this point in the English decisions. See Queen v. Lords, etc., 4 Ad. & El., 286 ; Same v. Same, 4 Eng. Rep., 277; Same v. Same, L. R., 7 Q. B., 387; cf. Gneist, Das Englische Verwaltungsrecht, 1884, 712. 'Green v. Mumford, 5 R. I., 472, 475 ; Dow v. Chicago, 11 Wall., 108 ; Mil- liard, Injunctions, 3d Ed., 486. VOL. 11. — 14. 2IO CONTROL OVER THE ADMINISTRATION. liminary injunction with such freedom as in many cases to paralyze almost completely th§ action of the administration. This is unfortunately the case in New York. Here police officers have in several instances been by the injunction restrained from preventing pal- pable violations of the law.* In England, however, the injunction seems rarely to be made use of as a means of preventing administrative action. Gneist does not even mention it as one of the remedies in his description of the administrative jurisdiction of the English courts, but speaks of prohibition only ^ ; and a search through the English digests reveals very few cases of the use of the injunction against adminis- trative officers.* 6. Administrative jurisdiction of the United States federal courts. — In the case of the commonwealth courts the general rule is that the administrative juris- diction is possessed by all those courts which have inherited the jurisdiction of the court of king's bench — and most courts of general common law jurisdiction have inherited such jurisdiction. This rule prevents courts with a mere appellate jurisdiction from exercising the administrative jurisdiction ^ ; and results also in the fact that the equitable remedies may be issued only by courts possessing equity jurisdiction. The administrative jurisdiction of the United States federal courts is not however governed by these general prin- ' A good collection of these cases was made in an editorial of the New York Times of April 23, 1886. ^ Das Englische Verwaltungsrecht, 1884, 404. ^ That it is used now and then may be seen from the cases of Ellis v. Earl Grey, i Simon, 214 ; and i Vesey Sr., 188. 4 Morgan V. Register, Hardin, 609 ; State v. Biddle, 36 Ind., 138 ; State v. Ashley, i Ark., 513 ; Memphis v. Halsey, 12 Heiskell, Tenn., 210 ; see also Perry V. Shepherd, 78 N. C, 83. JURISDICTION OF THE HIGHER COURTS. 211 ciples, but is so fixed in detail by the constitution and the statutes that it becomes necessary to have reference to these and to the decisions made in interpretation of them in order to understand what exactly is the juris- diction of these courts. It has been held in a series of decisions that the United States courts generally have no power to issue the niandarmis or certiorari except to aid an already acquired jurisdiction : the Supreme Court, because the constitution does not include this power within the original jurisdiction given to that court ' ; the circuit courts and the district courts, be- cause such power has not been granted to them by the judiciary act.^ The supreme court of the District of Columbia may, however, as a result of the fact that it has inherited for the territory of the District of Colum- bia the jurisdiction of the court of king's bench, issue the mandamus^ and probably as a result of the applica- tion of the same principle the writ of certiorari also. It is to be noted, however, that the recent customs administrative act gives the power to the circuit courts to issue a sort of statutory certiorari to the boards of general appraisers in customs matters.^ Where, how- ever, it is necessary to issue such writs in order to enforce a jurisdiction already in other ways acquired, they may issue the mandamus, and as a result of the application of the same principle the certiora/ri.^ In * Marbury v. Madison, i Cranch, 137 ; In re Kaine, 14 Howard, 103 ; Ex parte Vallandigham, i Wallace, 243 ; U. S. v. Young, 94 U. S. 258, 259. ^ Mclntire v. Wood, 7 Cranch, 504 ; U. S. v. Smallwood, i Chicago Legal News, 321 ; Ex parte Nzxi Orden, 3 Blatchford, 167; Patterson v. U. S., 2 Wheaton, 221. 3 Kendall v. U. S., 12 Peters, 524. ^ Supra, II., p. 207. * Lansing v. County Treasurer, i Dillon, 522 ; see also Reesv. City of Water- town, 19 Wall. 107. 212 CONTROL OVER THE ADMINISTRATION. some of the cases laying down this i-ule a mandamus was issued by a circuit court to a municipal corporation to compel it to provide for the payment of a judgment obtained in the court against such corporation. Further as a result of the provisions of the United States con- stitution the Supreme Court, it would seem, has such power in cases where a commonwealth, or a foreign diplomatic or consular officer is a party .^ The rules are about the same with regard to the prohibition. The Su- preme Court has no right to issue a prohibition except in admiralty matters ^ ; and it is very doubtful whether the circuit courts may issue a prohibition at all.^ The rules are, however, more liberal with regard to the in- junction, the habeas corpus, and the quo warranto. The power to issue the habeas corpus even to the adminis- trative authorities of the commonwealths is given to all the United States courts, except the Supreme Court.* They have also the right to issue the quo warranto when the question at issue concerns the denial of the right to vote on account of race, color, or previous con- dition of servitude for any officer other than presiden- tial elector and legislative officers, or concerns the disqualification for office resulting from the violation of official oath, by engaging in insurrection or rebellion against the United States or giving aid and comfort to its enemies.5 The Supreme Court may not issue the injunction except to aid an already acquired jurisdic- tion and except in cases where a commonwealth, or a * Const., Art. III., sec. 2, par. 3. * U. S. Rev. Stats., sec. 688 ; U. S. v. Peters, 3 Dallas, 121 ; Ex parU Christy, 3 Howard, 292 ; Ex parte Insurance Co., 118 U. S., 61. * U. S. Rev. Stats., sec. 716 ; /» r^ Binninger, 7 Blatchford, 159. * U. S. Rev. Stats., sees. 751-766 ; Ex parte Barry, 2 How. 65. " Amendment 14, sec. 3 ; U. S. Rev. Stats., sec. 563, pars. 13 and 14. JURISDICTION OF THE HIGHER COURTS. 213 foreign diplomatic or consular officer is a party. ^ The other United States courts have a large power, except in tax cases, to offer the equitable remedies in proper cases against the action of both national and common- wealth officers though they are pretty careful in their issue of the injunction.^ These rules apply as well to the issue of these reme- dies against commonwealth officers as to their issue against the officers of the United States government. If they have not an already acquired jurisdiction in the cases where this is necessary, they may not issue the writs. If they have they may.^ On the other hand the courts of the commonwealths may never exercise their administrative jurisdiction in order to control the actions of the officers of the national government. For the United States courts have exclusive jurisdiction generally of all cases arising under the constitution and laws of the United States.'^ The result is that the officers of the national government are not nearly so subject to the administrative jurisdiction of the courts as are the commonwealth officers. But this control is not nearly so necessary as in the common- wealth administration. For the administrative control is so strong in the United States administrative sys- tem that the mistakes of subordinate administrative officers are quite easily corrected on appeal ^ ; and if on such appeal the aggrieved individual is not able to ob- * U. S. Const., Art. III., sec. 2, par. 3. ' U. S. Rev. Stats., sec. 629, par. 2. * Supra, II., p. 211 ; Graham v. Norton, 15 Wallace, 247 ; Commonwealth v. Dennison, 24 Howard, 66. * U. S. Const., Art. III., sec. 2, p. i ; Brewer v. Kidd, 23 Mich,, 440 ; Able- man V. Booth and U. S. v. Booth, 21 How., 506; Tarble's Case, 13 Wall., 397. ^Butterworth v. U. S., 112 U. S., 50, 57. 214 CONTROL OVER THE ADMINISTRATION. tain satisfaction lie in all cases has the right of applying to the supreme court of the District of Columbia, which has the common law administrative jurisdiction for the territory of the District of Columbia, where all the heads of departments are to be found ; and appeal may be taken from this court to the Supreme Court of the United States. //. — Special and statutory administrative jurisdiction of the lower courts. The special and technical character of the common law administrative jurisdiction of the courts has made it seem advisable in certain rather exceptional cases, where no one of the writs affords the proper relief, to provide by statute for special appeals, generally to the lower courts, from the decisions of administrative offi- cers, when either questions of law alone or questions of both law and fact may be considered. 1. Appellate jurisdiction of courts of quarter sessions or county courts, — It has been shown that, after the abolition of the court of star chamber, which served as an appellate court on questions of both law and fact for the decisions of the subordinate English adminis- trative officers, it was provided in a series of statutes that appeals should thereafter be taken to the court of quarter sessions of the county, which was composed of the justices of the peace of the county. This sort of administrative jurisdiction differs considerably from that of the royal courts, which has been considered. In the first place, the remedy is a general one — a simple appeal against the act complained of — while the juris- diction is enumerated. In the royal courts it will be remembered that the converse is true, i. e, the remedies JURISDICTION OF THE LOWER COURTS. 215 are special in character and the jurisdiction is general. No one can appeal to the quarter sessions from an order or decision unless a statute specially permits an appeal to be taken in the class of cases of which the one at bar is one/ In the second place, the appeal may- be and is usually taken on questions of fact. If ques- tions of law are raised the proper courts to appeal to are the royal courts, to which appeal goes by special case or special writs.*^ In the third place, the general conditions under which the appeal may be taken are that the party appealing must be immediately aggrieved by the act complained of, not consequentially but im- mediately aggrieved. Thus the mapping out of a road is not an immediate grievance.^ Officers of the locali- ties may as private individuals appeal in the interest of their locality .^ In the fourth place, while this sort of administrative jurisdiction is enumerated in the statutes still the statutes have been based on general principles in allowing these appeals. These are that the appeal is only granted where the rights of personal liberty and private property are involved.^ While in the United States the statutes granting a power of appealing from the decisions of the adminis- trative officers to the courts of quarter sessions or county courts, which have largely taken their place, are not nearly so numerous, still we do find not a few instances of them. Thus in New York any one inter- ested may appeal to the county court from the decision of the superintendent of the poor as to the settlement of a poor person.^ An instance of a similar power of appeal, though in this case the appeal does not go to ^ Rexv. Hanson, 4 B. & Aid. , 521. ^ Rex v. Middlesex J J., i Chitty Rep., 366. « Still V. Brennan, 41 L. J. M. C, 85. * Rex v. Colbeck, ii Ad. & El., 161. *Gneist, Das EnglischeVerwaltungsrecht^ 1884, 397, * L. 1872, c. 38. 2i6 CONTROL OVER THE ADMINISTRATION. the county court, is the power given to any individual, who has been refused a patent for an invention by the commissioner of patents, to appeal from this decision to the supreme court of the District of Columbia.^ 2. Special case. — A most notable example of these attempts to supplement the administrative jurisdiction of the higher courts is to be found in the English habit of stating a special case. This habit, as has been indicated,^ originated in a clause in the commission of the justices of the peace which enjoined upon them to ask the advice of the royal judges in cases where they were in doubt. These special cases are mostly state- ments of facts, are made up in both the quarter and the special sessions, and go up to the higher courts which decide the matter for the justices. At first the decision of the royal courts was only consultative in character, the justices not being bound by it, but the judicature act of 1873 has made the decision, it is be- lieved, binding upon the justices and mandatory.^ The courts have all alone encouraged the sending up of these special cases which have almost replaced the certiorari.'^ As a general rule the allowance of a special case is in the discretion of the justices.^ On a special case the courts do not, as a rule, interfere with the discretion of the justices.^ The special case, while not common in the United States, is not unknown to the American law. ^ U. S. Rev. Stats., sec. 491 1. This is in place of the administrative appeal to the head of department ; Butterworth v. U. S., 112 U. S., 50, 57. 2 Supra, II., p. 196. 'Wallsall V. Ry. Co., 48 L. J. M. C, 65. *Gneist, Das Englische Verwaliungsreckt, 1884, 407; Smith, Practice at Quarter Sessions, 518-520. 5 Ex parte Jarvin, 9 Dowl. P. C. 120. But see Smith, op. cit,, 521. •Rex v. Ry^ Co., 43 L. J. M. C, 57 ; Rex v. Kent, JJ., 41 J. P., 263. CHAPTER VI. THE ADMINISTRATIVE JURISDICTION IN FRANCE. /. — History, In France, as has been said, tbe administrative juris- diction has been given to special courts. France may be said to have founded the modern system of special administrative courts. Even before the revolution France possessed special administrative courts. Some of these were independent of the active administration, and had been established simply as a result of the application of the economic principle of the division of labor. Such e.g. were the court of moneys and the chamber of accounts. But by the side of these tri- bunals there grew up in the 17th century new authori- ties completely dependent upon the active administra- •tion, and purposely made dependent upon it in order that the administration might have perfect freedom of action in its endeavor to perform the greater taskg imposed upon it as a result of the great increase of the powers of the Crown.^ While in England as late as 1701 the ordinary courts were under the control of the Crown, and there was consequently no need, in order to make the administration independent in action, of forming special administrative courts, in France the ^Aucoc, op. cit., I., 396, 397. 217 2i8 CONTROL OVER THE ADMINISTRATION, ordinary judicial bodies were quite independent of the Crown. The chief judicial bodies in France before 1789 were the parliaments, and their members were independent of the Crown as a result of the fact that the position of member of parliament was venal and bought and sold as property. The powers of these parliaments were never clearly defined, and in the general confusion of the time as to the distribution of the three great so-called powers of government, the parliaments often tried to assume a control over the actions of the administration. When Louis XVI came to the throne in 1774, it was seen that great reforms in the administration of the government and in the social conditions of the people must be under- taken. For this purpose the King chose Turgot as one of his ministers. The reforms which Turgot endeavored to introduce did not meet with the approval of the privileged classes. As the parliaments were composed of members of the privileged classes they opposed these reforms, refused to register the various edicts issued by the King,^ encroached upon the royal power by them- selves issuing decrees, and tried to hinder the action of the royal officers by issuing commands to them and citing them to appear before the parliaments to answer complaints made against them.^ When the liberal ele- ments obtained control of the Constituent Assembly, this action of the parliaments was remembered and the principle already enunciated by Montesquieu that the three so-called powers of government must be entrusted to different and independent authorities, was incor- porated in the celebrated"^^ declaration of the rights of ^ Such e. g. was their action as to the edict abolishing the corvee or enforced labor of the peasants on public works. * Aucoc, op. cit., I., 17, 52. FRENCH ADMINISTRA TIVE JURISDICTION. 219 man and of the citizen." ^ The administrative authori- ties were made completely independent of the Judiciary,^ and judges were forbidden under pain of forfeiting their positions to interfere in any way whatever with the acts of the officers of the administration or to cite them before them for the performance of their duties.^ For said the Constituent Assembly : The constitution will be equally violated, if the judiciary may meddle with administrative matters and trouble administrative officers in the discharge of their duties, . . . Every act of the courts of justice which purports to oppose or arrest the action of the administration being unconstitutional, shall be void and of no effect. * Thus the desire of the absolute monarchy t® free the administration from all judicial control was realized by the revolution. This is the origin of the great prin- ciple of the independence of the administration which permeates all French law. Its adoption in modern times is due in great part to the fact that the ordinary judicial tribunals had hampered the administration in its work of reform in the 17th and 18th centuries, which they were able to do as a result of their position of independence over against the Crown. In order, however, to offer the individual some remedy against the decisions of the subordinate officers of the administration, there was formed a most ex- tended system of appeals from the subordinate to the higher administrative authorities. This it was easy to form in France on account of the formation after the revolution of a most centralized system of administra- ^ Art. xvi. 'L., Dec. 22, 1789-Jan. 8, 1790, sec. iii., art. 7. * L., Aug. 16-24, 1790, title ii., art. 15. * Instructions to the law last cited, Lois et AcUsdu Gouverntment^ I., 98. 220 CONTROL OVER THE ADMINISTRATION, tion.^ Care was soon taken to give the power to decide the most important of these appeals to authorities not immediately connected with the active administration.^ The active administration thus ceased to be at the same time party and judge. The plan was so success- ful, that the jurisdiction of the most important of these administrative tribunals, as they were called, has been gradually extended until this administrative jurisdic- tion is now really more extensive than that possessed by the ordinary judicial courts in the English and American system. //. — Reasons for the retention of the system. 1. Need of special courts. — While this method of judicial control over the administration was adopted largely as a result of peculiar local conditions, it has been retained for purely practical reasons. In the first place the special character of the matters which are embraced within the administrative jurisdiction re- quires, it is believed, for their satisfactory treatment special knowledge, which judges who devote most of their time to the consideration of questions of private law cannot be expected to possess. Different habits of thought and a practical knowledge of administra- tive law, to be obtained for the most part by direct contact with active administrative work, are regarded by the advocates of special administrative courts as essential. It is believed that these qualities are essen- tial not only to the government but also to the indi- vidual. French experience has shown in those few ^ See . «V., 688. 282 CONTROL OVER THE ADMINISTRATION. the extraordinary revenue be paid into the Consoli- dated Fund, and that the expenses which had been defrayed from it, as e, g. the salaries of the judges and of ambassadors and. the civil list of the Crown, should thereafter be paid out of the Consolidated Fund as a result of permanent law.* This is regarded as some- what in the nature of a contract between the Crown and Parliament, and is renewed regularly at the acces- sion of each ruler. The civil list of the Crown is, it is said, just about equal to the revenues transferred to the fund in this way.^ Further within almost the last generation it has been provided that the receipts from customs and internal revenue shall be reported by the Crown to Parliament in gross and paid into the fund in gross. Parliament has thus obtained control of the expenses of collection and administration inasmuch as they are not to be paid out of the fund in accordance with permanent law.^ The result of this arrangement is that the Crown presents each year to Parliament estimates for the following expenses which are in the control of each Parliament; Army estimates. Navy estimates, Miscellaneous Civil Service estimates, and Revenue Department estimates which are divided up into about 200 appropriations.* These are the only expenses of the government over which Parliament exercises an annual control. It does not therefore ex- ercise an annual control over the civil list of the Crown, the expenses of the public debt, or the salaries of judges or ambassadors, but does over the army and navy estimates. The reason why the army and navy »SeeI. Geo. III., c. 3. ' The fund is now regulated in its main features by 17 and 18 Vict., c. 94. ' Gneist, op. cit., 688. * Gneist^ op. cit, 691, 692, citing Pari. Papers, 1880, xlv., xlvi. CONTROL OVER THE FINANCES, 283 estimates are voted every year is to be found in tlie experience of the people under the reigns of the Stuarts and during the Commonwealth when the army was used to oppress them. Again the geographical posi- tion of England is such as not to make it absolutely necessary that the sti'ength of the army shall be inde- pendent of the chance of an agreement of both houses of Parliament. It is to be noted that, notwithstanding the fact that Parliament has, as has been shown, quite a large control over the expenses of the government, it has always been very careful not to interfere very much with the estimates as presented by the Crown. It has never refused to approve the estimates as a whole, but has usually contented itself with making minor changes in them. It is felt that the refusal to vote the estimates would tend too much to cripple the adminis- tration ; and the principles of ministerial responsibility to Parliament have brought about the recognition of the fact that a sensible alteration of the estimates as brought in by the administration is equivalent to the expression of a lack of confidence in it and will in almost all cases be followed by the dissolution of Par- liament or the resignation of the ministers.^ It is fur- ther to be noted that the position of the ministers as the great standing committee of Parliament, which is to examine, before it is presented, every important measure and is to guide the deliberations of Parlia- ment, has brought about the adoption of the rule that no appropriation of any importance is to be made except on the proposition of the Crown, i, e, the ad- ministration. It may happen in isolated cases that the house will address the Crown to the effect that certain * Gneist, op. cit., 723. 284 CONTROL OVER THE ADMINISTRATION. appropriations be made, but it is not customary for appropriations of any importance to originate other- wise than with the Crown. This is now fixed by a standing order of the House of Commons/ Finally it has been decided as a result of long practice that the control of Parliament over the appropriations shall not be so made use of as to compel the administration to take action which it believes is unwise. That is Par- liament may not tack to an appropriation bill any clause or provision foreign to it. Whenever such an attempt has been made by the House of Commons the House of Lords has regularly thrown out the objec- tionable bilL^ In the United States a somewhat similar method of insuring the stability of certain of the expenses has been adopted. As has been shown the receipts are permanent. The statutes of Congress have also pro- vided for quite a number of appropriations which are based upon permanent law. The growth of the na- tional debt made the Congress feel the same fear that had been felt before in England as to the effect on the public credit of the country of the dependence of interest and sinking fund payments on congressional action. There was therefore adopted a system of what were called permanent annual appropriations established by permanent law which should be suffi- cient authorization to the administration to make the necessary payments without any special action on the part of the Congress. Among these permanent annual appropriations are to be mentioned, in addition to the debt payments, the expense of collecting the customs ^ Standing Order of June 25, 1852, cited in Cox., op. cii., 192. ' Gneist, op. cit., 727, citing Amos, English Constitution, 73. CONTROL OVER THE FINANCES. 285 duties, the salaries of judicial officers, and the expense of purchasing a certain amount of silver each year in the endeavor to keep up the price of silver and to bring about ultimately the adoption of the complete bimetallic standard. This last permanent annual ap- propriation may be evidenced as a striking example of the importance of these permanent appropriations to those who are interested in the stability of a certain expense. Finally as a result of the decisions of the Supreme Court ^ the fixing of salaries by permanent law, which is often the case, is regarded much as a permanent annual appropriation. For the officer whose salary is thus fixed may sue the government for it. The salaries would thus have to be paid regardless of the action of Congress unless such action was by a majority sufficient to override the President's veto. This decision of the Supreme Court has vastly in- creased the independence of the administration.^ It is indeed true that the act organizing the Court of Claims provides that judgments against the United States shall be paid out of the appropriation for private claims; but in time of conflict between the Congress and the President it is very probable that the Presi- dent would conduct the government and would have salaries paid without annual appropriations, and be able to do so successfully. The result of these perma- nent annual appropriations is that more than half of the current expenses of the government, exclusive of pensions and salaries, are beyond the reach of any particular Congress. That is, it is not necessary in ^ U. S. V. Langston, 118 U. S., 389. ^ See also Antoni v. Greenhow, 107 U. S., 769, in which it is said that the declaration by the legislature that money shall be spent is an appropriation by law. 286 CONTROL OVER THE ADMINISTRATION. order that these expenses be paid that there be any action on the part of Congress at all. The failure of Congress to act or to agree with the President will not affect the action of the administration in the carrying on of the government through the payment of a large part of the expenses. The particular expenses of the government which are under the control of each Con- gress are, those of the army, the navy, and of the other branches of the administration with the excep- tion of the customs. Congress has never, as has the English House of Commons, divested itself of the right to make appropriations other than those proposed by the administration. Indeed in practice many of the most unwise appropriations of the national government are made on the proposition of Congress and not on that of the administration. Congress further always makes use of its undoubted right to cut down or amend in some way the estimates sent in by the ad- ministration. It has also attempted, by tacking to appropriations provisions objectionable to the admin- istration, to force their acceptance by it, under a threat of a refusal of the estimates, but the determined stand recently made by one of the Presidents and the abso- lute impossibility of refusing important appropriations to the administration have finally convinced the Con- gress that this is not a proper use of its control over the finances. When we come to the control of the commonwealth legislatures over the expenses we find such a variety of systems that it is impossible to say what is the general rule. In some commonwealths we find that the amount of the appropriations is fixed almost alto- gether by the administration in accordance with general CONTROL OVER THE FINANCES. 287 and permanent laws over which a given legislature has practically little control ^ ; and it has been held that without any special appropriation the payment of salaries fixed by permanent law may be enforced by mandamus.^ In other and indeed in most cases most of the appropriations are made annually or biennially by the legislature.^ In all the commonwealths the legislature has the power to make appropriations other than those proposed by the administration if the ad- ministration is to submit estimates to the legislature. Generally also the legislature, where such estimates are submitted to it, has the right to cut them down and often exercises this power. But as a result of the very general power of the governor to veto items in appropriation bills * the legislature may not force the administration to take action not approved by it as a result of tacking such a provision to an appropriation bill. In France the legislature has just as complete a control over the expenses as over the receipts. It may also and does as a matter of fact, make appropriations, estimates for which are not presented by the adminis- tration, to the great detriment of the budget, and has the right, which it not unfrequently exercises, to cut down the estimates as presented. ^ The exact control which the legislature has over the ^ The courts seem to regard this practice as perfectly proper. See People v. Supervisors, 17 Hill N. Y., 195 ; John J. Townsend, trustee, v. Mayor, eic.^ 77 N. Y., 542. 'Nichols V. Comptroller, 4 Stew, and Port. Ala., 154. ' In some cases this is required by the Constitution, Stimson, op. cii., p. 320 B. This is so in Arkansas, Kansas, Louisiana, Missouri, Ohio, and Texas. ^ Supra, I., p. 75. 5 Ducrocq, <7^. «V, , I., 533-544. C/. also Leroy Beaulieu, Science des Fi- nances, chapter on Le Vote du Budget. 288 CONTROL OVER THE ADMINISTRATION. expenses in the German Empire does not seem to have been fixed. There is even at the present time a struggle going on between the believers in what is known as French liberalism and those who feel that the existence of a strong administration requires that a large part of the expenses should be independent of the yearly- action of the legislature. So far the result is that while some of the expenses are based on permanent law and while others are fixed for a term of years, by far the larger part of the expenses are in the control of the legislature whose annual action is necessary in order that they be paid. It must, however, be remem- bered that a large part of the expenses of the imperial administration are defrayed by the members of the empire. Such is the case e, g. with the expenses of collecting the customs duties and the internal revenue. For the separate members of the empire pay, in their matricular contributions only the net income of these taxes.* Among the expenses of the imperial govern- ment which have been fixed by permanent law are the interest on the imperial debt, the expenses of all insti- tutions and authorities which owe their establishment to permanent law, i, e. the salaries of all officers having permanent positions, since judgments against the treas- ury obtained in the ordinary courts by them for their salaries have to be paid.'^ The main expense which is fixed for a term of years is the expense of the army, one of the largest items of the imperial budget. The German practice on this matter has varied considerably. But the latest settlement of the question would seem to be that the expenses of the army shall be fixed for a period of seven years. The reason why it has seemed ^ Meyer, Deutsches Staatsrecht^ 546. ' Meyer, op. cit., 549. CONTROL OVER THE FINANCES. 289 necessary to give to the army expenses a more per- manent character than is possessed by most of the expenses of the administration, while most of the countries, which have adopted most fully the idea of permanent appropriations, have left the legislature a large control over the army expenses, is to be found in the geographical position of the German Empire. Germany has almost no natural boundaries to the east and west and on both of these frontiers lie hostile states ready to take any advantage of the least symp- tom of weakness. A strong administration of military affairs is therefore absolutely necessary. This is ac- complished by this arrangement, which is known as the septennate. For during the periods for which the esti- mates are voted the legislature has practically no control over the military administration. The privilege granted to the presiding state of the empire, viz,^ Prussia, which means practically the Emperor, to veto any proposi- tion amending the laws regarding the army, gives the Emperor the power to prevent the repeal or amend- ment of the septennate.^ In the separate members of the empire the rules with regard to the control of the legislature over the appropriations are about the same as those in force in the empire. Among the permanent expenses are to be mentioned the matricular contributions (at least over these the legislature of the particular member of the empire has no control), the civil list of the prince, and all payments to be made as a result of the applica- tion of the rules of private law inasmuch as they may be enforced by the judgments of the courts.* An interesting question which arises in this connec- * See Imperial Constitution, Art. 7. ^ Meyer, op. cit, 538. 290 CONTROL OVER THE ADMINISTRATION. tion is what is the power of the administration with regard to the payment of unforeseen expenses which arise after the voting of the appropriations and which must be made when the legislature is not in session. France and England are about the only countries that attempt to regulate this matter by law. Iii France it is provided that^ the President of the republic may, in case the legislature' is not in session, enlarge the amount of any given appropriation, though it ex- pressly forbids him to open an absolutely new appro- priation. This is to be done by a decree issued after taking counsel with the Council"of State and must be submitted to the legislature at the opening of its next session. England has provided a series of funds, viz.^ the civil contingencies fund and the treasury chest fund to which the government may have recourse.^ But it is said that the administration is " strictly ac- countable to Parliament for all such transactions and the advances so made out of these funds must be re- placed out of moneys voted by Parliament for that purpose." ^ Further in England unexpended balances of appropriations are largely at the disposition of the administration. As the heads of the administration, the ministers, are always responsible to the Parliament, such a power is not susceptible of great abuse.* In the other states the rule generally is that any modification made by the administration in the appro- priations so as to increase the amount appropriated is made at the peril of the administration. Circumstances arise also even in states, like England and France, which make some provision for the payment of unfore- * L. Dec. 14, 1879. 3TqjJ(J^ ^^ ^n ^ Y., 730. CONTROL OVER THE FINANCES. 291 seen expenses, when, in order that the government may go on, the appropriations must be exceeded. Such cases are not susceptible of juristic treatment. The fact simply presents itself to the administration that in order that the government may go on the law must be broken. As it is more important that the government shall go on than that the law shall be observed, the universal practice is for the administration, whether it is repub- lican or monarchical, to break the law and then come before the legislature for an indemnity. The qjiestion is a purely political one and the action of the adminis- tration will be judged in accordance with the facts of the particular case. But it is seldom that the legisla- ture will be unreasonable. Where the administration is dependent in tenure on the legislature the case can never be a serious one. For the result of the disap- proval of the legislature will finally be the overthrow of the ministry. Where, however, the administration is independent of the legislature a more serious case may arise — a case which must be settled not by law but by politics. Similar instances of conflict may arise in case the legislature refuses to grant the appropriations. But these are as before political rather than legal questions. ///. — Examination of accounts. In order that the control which the legislature pos- sesses over the administration through its control over the receipts and expenses may be of any value it is necessary that it have the further power of examining the accounts of the administration after the execution of the budget. In this way and in this way alone can 292 CONTROL OVER THE ADMINISTRATION. it satisfy itself that its directions relative to the re- ceipts and expenses have been observed. All consti- tutions grant some such power to the legislature ; and the usual rule is that the legislature makes use of some authority independent of the administration to aid it in the examination which it makes. This is the case in France, England, and Germany. In France it is the Court of Accounts, whose members though appointed by the President are irremovable, which examines the accounts of all administrative officers having charge of public money and property, and which thus acquires a large knowledge of the methods of action of the ad- ministration in the execution of the provisions of the budget and reports its findings to the legislature.^ In Germany both in the empire and in Prussia a similarly organized body with a similar name discharges similar functions.^ These bodies both in France and Germany really also exercise a judicial control over most of the actions of the administration relative to the finances. In England the comptroller and auditor general, who has the judicial tenure, examines the accounts of the officers of the administration (thus having a judicial control) and has the further power of preventing the unauthorized expenditure of money. He is also called upon to report to Parliament the results of his investi- gations and to aid it in its endeavor to ascertain how far the administration has observed the provisions of the appropriation acts.^ In the United States, how- ever, the legislature acts in its investigations unaided by any other authority. Great care is taken both by * Boeuf. Droit Administratif, 84-102. 'Meyer, Deutsches Staatsrecht, 540, 551. •Todd, Parliamentary Government in England, II., 569. CONTROL OVER THE FINANCES. 293 the national constitution and by the statutes of Con- gress to ensure the full publicity of the accounts of the administration, some of whose departments have to report directly to the legislature while the secretary of the treasury has to report to it in full the entire receipts and expenditures of the preceding year/ The rules of the House of Representatives have usually provided ^ that such accounts shall go to the speaker of the house and be submitted by him to the house for reference. They are then to be referred ^ to one of the eight standing committees on expenditure which shall examine them together with the manner of keeping them, the economy, justness, and correctness of the ex- penditures, their conformity with appropriation laws, the proper application of public moneys, the security of the government against unjust and extravagant de- mands, retrenchment, the enforcement of the payment of moneys due the United States, the economy and accountability of public officers, the reduction or in- crease of pay of officers, and the abolishment of useless offices. Each of the eight standing committees on the expenditures of the departments has one or more of these subjects within its purview and after making the necessary examinations is to report to the house. What the legislature will do in case of unauthorized expendi- tures or of failure to observe the provisions of the budget, the laws and the rules do not say ; and it is not the habit of the house to pass any law or resolution settling and affirming the actions of the administration in case they are in conformity with the appropriation acts and releasing the officers of the government having ^ Const., Art. I., sec. 9, par. 7 ; U. S. R. S., sees. 260, 261,- 266, and 267. ' See rule 42. ^ Rule n, sec. 32. 294 CONTROL OVER THE ADMINISTRATION, control of the execution of the budget from all further responsibility for it. In England the action of the House of Commons is very similar. There is a committee of acounts which is to pursue the same kind of inves- tigations, but which is aided in its work by the comptroller and auditor general.^ The effect of their investigations is about the same. That is, it does not seem to be the habit of the house to take any formal action as to the release of the officers of the admin- istration from responsibility for the execution of the budget. But in case any serious irregularities were discovered which the house felt it could not, with jus- tice to itself, allow to pass unnoticed, the remedy would, in accordance with the general principles, be the passage of a vote of censure or of lack of con- fidence in the administration which might ultimately lead to the overthrow of the ministry. In France, and Germany, however, the result of the investigations of the legislatures into the conformity of the actions of the administration with the provisions of the budget always results in the passage of a law, which, if nothing serious is discovered involving the administration, re- leases the officers controlling the administration from all responsibility for the execution of the budget.^ In France, however, this law comes so long after the execution of the budget that it really does not amount to much. Indeed the investigation by the legislature of the accounts of the administrations supervenes so long after the execution of the budget that there is plenty of time in the peculiar conditions of French politics for the existence of several separate ministries ^Gneist, Das Englische Verwaltungsrecht, 1884, 731. ' Ducrocq, Droit Adminisiratif, I., 423 ; Meyer, op. cit., 539. CONTROL OVER THE FINANCES. 295 before the examination is undertaken of the accounts of any particular budgetary year. If, however, it happens that the ministry whose accounts are being examined is in office at the time of the examination the result of the discovery of any unauthorized ex- penditures might be its fall. There is further a crim- inal responsibility which might be enforced before the courts even if the ministry were out of office for col- lecting any unauthorized taxes.* In Germany it is difficult to see what would be the result of the dis- covery by the legislature of a serious lack of con- formity of the actions of the administration with the provisions of the budget. As the principle of parlia- mentary responsibility has not been adopted the result would certainly not be the retirement of the ministry so long as it was backed by the Emperor or the prince. Again though the constitution of both the empire and of Prussia would seem to recognize some responsibility of the ministers this principle has not been sufficiently developed to permit of their being impeached. Indeed the Prussian constitution was put to the test in this very matter in the great constitutional conflict over the army appropriations in 1860-64 and the result showed that this legislative control over the finances was of no value in a case of real conflict between the administra- tion and the legislature. » Supra^ II., p. 27& CHAPTER IV. IMPEACHMENT. This like the other methods of legislative control is derived from England. The method of impeachment seems to have been necessary in England because the English law did not allow a civil or criminal suit to be brought against the highest officers of state except with extreme difficulty. It was thus developed mainly to fill up a gap in the judicial control. A further reason for its development is to be found in the im- possibility of obtaining a conviction of the great nobles before the ordinary courts ^ and in the necessity of •some means of legislative control in the days when the principle of the parliamentary responsibility of the ministers had not been developed.^ Since its develop- ment in England it has been adopted to some extent in almost all constitutional countries, and in some cases is made use of against not only the ministers but also all civil officers of the government. The ordinary English method of impeachment was formed in analogy with the ordinary criminal proce- dure, the House of Commons taking the part of the grand jury and thus bringiog forward the impeach- * Blackstone, Commentaries^ IV. , 360. ' For its history see Cox, Institutions of the English Government ^ 229 et seg,^ 468. 296 IMPEACHMENT. 297 ment or indictment, the House of Lords acting as the court/ The grounds for impeachment were originally abuse of office from corrupt, partial, or oppressive motives, violation of the law, and treason, which was usually defined by the court of impeachment to suit itself, and depended very much upon its feeling towards the accused,^ but later came to include, es- pecially during the reigns of the Stuarts, offences political in nature.^ The punishment originally was death, banishment, fine, or imprisonment in the dis- cretion of the court of impeachment. Soon after this method was developed there grew up the habit of exercising this control through the ordinary process of legislation, i, e, by the passage of a bill of attainder in accordance with which no fair trial was granted the person attainted. This seems to have originated with the Tudors and was quite frequently employed during the constitutional struggle of the seventeenth century.* This method has, however, in practice been abandoned as it was grossly unjust. Parliament still of course has the power to pass a bill of attainder if it wishes to, although in the United States such action by Congress is forbidden by the national constitution.^ The method of impeachment even, has with the development of the principle of the Parliamentary responsibility of the ministers, rather fallen into disuse, the last case being that of Warren Hastings, which occurred about ' the end of the last century. The other methods of legisla- tive control are so complete that it is difficult to see in what cases it could be applied with advantage. The ' Ibid., 229, 470,471, ^ Gneist, Das Englische Verwaltungsrecht (1884), 436. * Ibid. * Cox, op. ciU, 235, 465. ^ Art. I., sec, 9, p. 3, sec. 10. 298 CONTROL OVER THE ADMINISTRATION. power still remains in Parliament and may be made use of in an extreme case where all other means of control fail to bring the administration to an observance of the laws or customs of the land. This method of impeachment has been adopted in the United States both in the national and in the commonwealth governments. The national constitu- tion provides that the House of Representatives shall have the sole power to impeach the President, vice- president and all civil officers of the United States ^ ; that the Senate shall, with the chief justice of the United States as presiding officer in case the President is impeached, have the sole power to try impeachments and shall convict only as a result of a two-thirds vote of the members present "" ; and that the punishment in case of conviction shall be removal from office and dis- qualification to hold any office of honor, trust, or profit under the United States in the future, with the impos- sibility of pardon, but that the person so convicted shall be liable to indictment, trial, judgment, and pun- ishment according to law.^ The causes of impeachment are * treason, bribery, and other high crimes and mis- demeanors. There have been two views as to the meaning of this phrase. One is that the only cause for impeachment is a crime, i. e. an act for which a person may be indicted and punished in accordance with the law ; the other assigns a much wider meaning to the phrase and claims that the phrase was purposely left vague at the time of the formation of the constitution so that it might by construction be made to include political offences. The cases in which the article in ^ Art. I., sec. 2, p. 5 ; art. II., sec. 4. 2 ^rt I., sec. 3, p. 6. 2 Art. I., sec. 3, p. 7. 4 Art. III., sec. 4. IMPEA CHMENT. 299 the constitution relative to the causes of impeachment has been construed are few in number and some of them have been decided for jurisdictional reasons and are therefore of little value in throwing light on the meaning of the article. Thus the first case, viz.^ that of Senator Blount, decided that a Senator of the United States could not be impeached inasmuch as he was not a civil ofiicer of the United States in the meaning of the constitution, while the last case, viz,^ that of a \(^ cabinet officer was decided largely on the ground that, as such officer had resigned and his resignation had been accepted by the President, he was not subject to the jurisdiction of the impeachment court. The only cases in which the person impeached has been con- victed are those of Judge Pickering, who was convicted of offences distinctly not political ; Judge Humphreys, who was convicted of treason in the beginning of the war, his treasonable acts being the making of a speech in favor of secession and acceptance of the office of judge in the southern confederacy. On the other hand Judge Chase, who was impeached for " highly indecent and extra judicial " reflections upon the government of the United States made to a grand jury during the time when the alien and sedition laws were in force ; President Johnson, who was impeached for a political offence which had been made a high crime and misde- meanor by act of Congress ; and Judge Peck, who was impeached for arbitary conduct in committing for con- tempt of court an attorney who had published a criti- cism of one of his opinions, were all of them acquitted.^ It would seem therefore that the phrase ''high crimes ^ See Cyclopedia of Political Science^ etc.^ sub verba Impeachment. Article by Alexander Johnston. 300 CONTROL OVER THE ADMINISTRATION. and misdemeanors " does not include political matters. This is largely due to tlie fact of the large majority which is required for conviction in the court of im- peachment. For in the case of an impeachment for an act of a political character party feelings will be ar- rayed against each other, and in the state of political parties in the United States it will be very unusual for any party to have such complete control of the court of impeachments as to be able to get the requi- site two-thirds majority. The constitutions of most of the commonwealths recognize the right in the legislature to impeach and convict the officers of the government but the pro- visions differ somewhat in their details. One constitu- tion, viz.^ that of Oregon, expressly forbids impeach- ment. The majority of the constitutions provide for the impeachment of all civil officers. Some expressly refer to the governor.^ The cause for impeachment in most of the constitutions is crime, but some provide that immorality, official corruption, or misconduct and even incompetence, incapacity, or neglect of official duty, and favoritism will be sufficient cause.^ All the commonwealths in which provision is made for im- peachment, with the exception of Nebraska, provide that the lower house of the legislature is to initiate the impeachment generally as a result of a majority vote. In Nebraska the impeachment is to be initiated by the legislature in joint assembly of the two houses. In all but two commonwealths the impeachment is to be tried by the senate, a vote by two-thirds of whose members or two-thirds of whose members present, being usually * Stimson, American Statute Law, 63. * So in Louisiana, West Virgina, Virginia, and Florida. See Jbid., 64. IMPEACHMENT. 301 necessary for conviction. In New York, however, the judges of the court of appeals, the highest court, are joined with the senate and together with it form the court of impeachment, while in Nebraska the supreme court is the court of impeachment.^ The effect of con- viction is in almost all cases removal from office and in most cases also disqualification to hold office. But gen- erally persons impeached may be at the same time in- dicted and punished in the usual way.^ In France as in England the adoption of the principle of the parliamentary responsibility of the ministers has made impeachment almost unnecessary. Still one of the constitutional laws^ provides that the President, who is responsible to the legislature only for treason,* may be impeached only by the Chamber of Deputies and can be judged only by the Senate, and that the ministers, who are individually responsible to the legislature for their personal acts and solidly responsi- ble for their general policy,^ may be impeached for crimes committed in the exercise of their functions and tried in the same way. Finally the President may constitute the Senate into a high court of justice to judge all attempts against the safety of the state.^ While the responsibility of the ministers in Prussia and of the chancellor in the empire is recognized in the constitutions of both Prussia and the German Empire no law has been passed by either government which regulates the matter sufficiently in detail to permit an impeachment trial.^ In most of the other members of the empire, however, provision is made ^ Ibid. ^ Ibid., p. 65. »L. July 16, 1875, art. 12. * L. Feb. 25. 1875, art. 6. * L. Feb. 25, 1875, art. 6. « L. July 16, 1875, art. 12. ' Meyer, Deutsches Siaatsrecht, 476 ; 480,481. 302 CONTROL OVER THE ADMINISTRATION. for impeachment. As a general thing only ministers may be impeached as in France. The causes for im- peachment are generally the commission of crimes and the violation of the constitution. The impeachment is, where there are two houses, undertaken by either house of the legislature or by a concurrent resolution of the two houses. The court is either the highest judicial court or a special court composed for the most part, of judges, one half of whom are chosen by the prince, one half by the legislature. Punishment on conviction is generally as in the United States, removal from office and disqualification for office in the future.^ ^ IHd,^ i^^^ et seq. LIST OF AUTHORITIES. Abbreviatio Placitorum, II. 193. Adams, H. C, Public Debts, I. 10. Allinson and Penrose, City Government of Philadelphia, in Johns Hopkins University Studies in Historical and Political Science, V. 1-73 : I. 207, 209, 210, 216. AixiNSON AND Penrose, Philadelphia, I. 197, 201, 204, 211, 212, 214-216, 218. Amos, English Constitution, II. 284. Anson, Sir William, The Law and Custom of the Constitution, I. 98-100, \iar\ib, 143, 163, 239, 245 ; II. 53. Arnold, Municipal Corporations, 3d Ed., I. 255. Ash, Mark, Consolidation Act, I. 200. AUCOC, Conferences sur V Administration et le Droit Administratif, I. 35, 50, 85, 88, 107, 108, III, 112, 148, 150, 154, 159, 26S, 271-275, 286 ; II. 217, 218, 221, 222, 225, 226, 230-232, 235, 239. Benton, Abridgment of the Debates in Congress, II. 90, 91. Benton, Thirty Years' View, I. 130. Beverly, History of Virginia, I. 58. Bishop, Criminal Law, II. 79. Black, The History of the Municipal Ownership of Land on Manhattan Island, in Studies in History, Economics, and Public Law, edited by the Uni- versity Faculty of Political Science of Columbia College, I. 3 : I. 200, 201. Blackstone, Commentaries, II. 193, 195, 296. Block, M., Dictionnaire de r Administration franfaise, 1. 148, 273, 274 ; II. 46- 48, 67, 74, 79. 81, 82, 84, 87, 95. Block, Dictionnaire de la Politique, II. 187. Boeuf, Droit Administratif I. 8, 16, 85, 87, 88, no, 132, 155, 157, 158, 287, 288 ; II. 153, 259, 260, 292. BORNHAK, Geschichte des Preussischen Verwaltungsrecht, I. 296, 297. BoRNHAK, Local Government in Prussia, in Annals of American Academy of Political and Social Science, III. 403 : I. 320. BoRNHAK, Preussisches Staatsrecht, I. 92, 115, 141 ; II. 161, 162. BoRNHAK, Preussisches Verwaltungsrecht, II. 80, 177. Brodhead, History of New York, I. 167, 169. 303 304 LIST OF A UTHORITIES. Bryce, James, The American Commonwealth, I. 52, 104, 203, 207, 208, 213, 218 ; II. 271. Burgess, Poliiical Science and Comparative Constitutional Law, I. 3, 13, 39, 84, 93, 97. 98, 99. Burroughs, Taxation, II. 122. BusBEE, J. M., City Government of Boston, in Johns Hopkins University Studies in Historical and Political Science, V. 73-135 : L 199-201, 207-214, 2i6. Campbell, History of Virginia, I. 58. Chalmers, Local Government, I. i(\b-2.^i, 258, 260, 262 ; II. 64. Church, Habeas Corpus, II. 201, 202, 205. Clark, Debates of the Convention of 1821, I. 77. Cocker, Civil Government in Michigan, I. 183, 185. COMSTOCK, The Civil Service of the United States, II. 33, 41, 45. CONKLING, Executive Power, I. 61. Cooley, Constitutional Limitations, I. 24. ; II. 20, 21. COOLEY, Taxation, 2d Ed., I. 12, 13, 18, 230; II. 115, 116, 120, 122, 147, 153, 166. Cooley, Torts, II. 169. Cox, Institutions of the English Government, I. 129 ; II. 276, 280, 296, 297. Craik, The State and Education, I. 258. Crawley, Handbook of Competitive Examinations, II. 54-56, 67. Dareste, La yustice Administrative en France, II. 173. Dareste DE la ChAVANNE, Histoire de V Administration en France, I. 269, 285. De FrANQUEVILLE, U Gouvernement et le Parlement Britanniques , I. 112, 264. De Grais, Handbuch der Verfassung und Verwaltung, etc., I. 155, 301 ; II. 48, 49, 246. D^THAN, L Organisation des Conseils Gendraux, I. 268, 269, 271, 275. De Tocqueville, HAncien Regime et la Revolution, II. 170. Dicey, A. V., The Law of the Constitution, I. 6, 112, 155 ; II. 223. Dillon, Municipal Corporations, I. 24, 43, 173, 175, 188, 197, 202-204, 206, 207, 209, 213, 214, 219, 223 ; II. Ill, 116, 149, 152-154, 156. Documents Relating to the Colonial History of New York, I. 53, 54, 166. DUCROCQ, Traits du Droit Administratif, I. 35, 85, 271, 286-288; II. 128, 161, 162, 228, 229, 232, 279, 287, 294. Dunning, W. A., The Constitution in Civil War, in Political Science Quar- terly, III. 454 : I. 32, 121. DwiGHT, T. W., Harrington, in Political Science Quarterly, II. 16: II. 20. Eliot, President, One Remedy for Municipal Misgovernment^va. The Yotxtox, Oct., 1891, I. 217 ; II. 13. Elliot's Debates, I. 52. Elmes, Webster, Executive Departments, I. 64. Fisher, S. P. , Suspension of Habeas Corpus, ih Political Science Quarterly, III. 163 : I. 63. LIST OF AUTHORITIES, 305 FowLE, The Poor Law, I. 237. GiTTERMAN, The Council of Appointment, in Political Science Quarterly, VII, 80: I. 54; II. 15. Gneist, Constitutional History of England, II. 193, 194. Gneist, Das Englische Par lament, etc., II. 12. Gneist, Das Englische Verwaltungsrecht, 1884, I. 28, 98, 124, 125, 144, 149, 154, 236 ; II. 14, 53, 65, 79, 80, 106, 124, 125. 138, 140, 154, 167, 181, 188, 189, 196, 197, 209, 210, 215, 216, 240, 263, 276, 278, 281-284, 294, 297. Gneist, Der Rechtsstaat, I. 31 ; II. 240. Gneist, Die Kreisordnung, I. 300. Gneist, Gesetz und Budget, II. 278. Gneist, Les Riformes locales en Prusse^ in Revue Generale du Droit et des Sciences Politiques, Oct., 1886, I. 299, 300, 310, 317, 328. Gneist, Self government, Communalverfassung und Verwaltungsgerichte^ I, 162, 193, 198, 248-250. Gneist, Verwaltung, Justiz, und Rechtsweg, I. 92. Goodnow, Local Government in England, in Political Science Quarterly, II. 638: I. 162. Goodnow, Local Government in Prussia, in Political Science Quarterly, IV, 260: I. 295, 297, 299, 324; II. II. Goss, John D., The History of Tariff Administration in the United States in Studies in History, Economics, and Public Law, edited by the University Faculty of Political Science of Columbia College, I. No. 2 : I. 45, 153, Greenleaf, Evidence, II. 82. GUGGENHEIMER, The Development of Executive Departments, in Jameson, Essays in the Constitutional History of the United States, I. 128. GUMPLOWicz, Das Oesterreichische Staatsrecht, I. 16, 129 ; II. 13. Hammond, J. B., History of Political Parties in the State of New York^ I. 79, Hare, Walks in London, II. 33. Herbert and Jenkin, The Councillor's Handbook^ I. 242, 244, 251, High, Extraordinary Legal Remedies, I. 82 ; II. 73, 193, 194, 203. High, Injunctions, II. 203. HiLLiARD, Injunctions, II. 209. Holland, Elements of Jurisprudence, I. 7. How AND Bemis, Municipal Police Ordinances, II. 112. Howard, Introdi4ction to the Local Constitutional History of the United States^ Book III. Chapters I. and 11. passim, I. 165 et seq. Howe, W. W., Municipal History of New Orleans, Johns Hopkins University, Studies in Historical and Political Science, VII. 71-155 : !• 209, 210. Institutes of Justinian, I. 15. Johnston, A. R., On Impeachment, in Lalor's Cyclopaedia of Political Science, etc., II. 481 : II. 5, 299. Kent, Commentary on the Charter of the City of New York, I. 200, 201. Kidd, Benjamin, The Civil Service as a Profession, in Nineteenth Century, October, 1886, XX. 491 : II. 55. 3o6 LIST OF A UTHORITIES. KiRCHENHElM, Einfuhrung in das Verwaltungsrecht, I. i. 4, lo, ii, 15, 20. LAFERRifeRE, La JuHdiction Administrative, II. 74, 75, 80, l6i, 171, 175, 176, 227, 232, 235, 243, 253, 254, 256. Leclerc, La Vie municipale en Frusse, Extrait des Annales de I'lScole libre des Sciences Politiques, I. 332, 335. Leidig, Preussisches Stadtrecht, I. 328. Leroy-Beaulieu, La Science des Finances, II. 287. Light WOOD, The Nature of Positive Law, I. 7, 16. LOENING, Deutsches Verwaltungsrecht, I. 114, 115, 132, 141, 146, 148, 15S, 303, 311, 318 ; II. 49, 79. 80, 83, 106, 120, 163, 170, 242, 260. Low, Seth, Municipal Government, in Bryce, American Commonwealth, I. 630 : I. 215, 224. Macaulay, History of England, I. 126. Mackay, Ae. J. G. , The Science of Politics, its Methods and its UsCy in the Juridical Review, II. i : I. 7. May, Parliamentary Law and Practice, II. 274. McCrary, The Law of Elections, 3d Ed., II. 18. Mechem, Law of Officers, I. 149, II. i, 5-7, 19-24, 26, 28, 29, 31, 32, 63, 70-72, 81, 95-100, no, 115, 116, 161, 164, 165, 168, 204. Meier, Reform der Verwaltungsorganisation, I. 296, 297. M]&t6rie-Larrey, Les Emplois Publics, II. 48. Meyer, Deutsches Staatsrecht, I. 89-91, 95, 114, 116, 117, 140, 148 ; II. 288- 290, 292, 301, 302. Meyer, Deutsches Verwaltungsrecht, I. 45 ; II. 240-242, 246, 247. Miller, The Constitution, I. 24. MOMMSEN, Romisches Staatsrecht, II. 149, 170. Montesquieu, Esprit des Lois, I. 20, 27. Morehouse, Supervisor's Manual, I. 181, 183. Opinions of Attornies General, /ajj2w. OsTROGORSKi, M., Woman Suffrage in Local Government ^ in Political Science Quarteriy, VI. 677 : II. 28. Palgrave, King's Council, II. 193-195, 197. Parey, Verwaltungsrecht, II. 170. Parker and Worthington, Public Health and Safety^ II. 120, 126 Penrose, see Allinson and Penrose. Poore, Charters and Constitutions, I. 53, 57. Powers, F. P., Railroad Indemnity Lands, in Political Science Quarteriy, IV. 452 : I. 69. Powers, F. P., The Reform of the Federal Service, in Political Science Quarterly, III. 260 : II. 37, 38, 85, 92. Preussen im Bundestag, I. 300. Probyn, Local Government and Taxation in the United Kingdom^ I. 240, 248, 256, 257. Reeves, History of the English Law, II. 194. Richardson, The Court of Claims, in Southern Law Review, reprinted in volume XVII. of Ct. of CI. Reports : II. 158. LIST OF AUTHORITIES. 307 Robinson, J. H., Original Features in the United States Constitution^ in Annals of American Academy of Political and Social Science, I. 222 : I. 52. ROttiman, Das Nord-Amerikanische Bundesstaatsrecht, I. 52, 69, 105, 130. Ryley, Pleadings, II. 193. Sarwey, Allgemeines Verwaltungsrecht, I. 11, 21, 26-28, 31, 32. Sarwey, Das Oeffentliche Recht, II. 150, 153, 244. SCHULZE, Deutsches Staatrecht, I. 89-92, 129, 132, 140, 142, 148 ; II, 74, 81, 95, 100. Seeley, J. R. Life and Times of Stein, I. 297. Shaw, Albert, Municipal Government in Great Britain, in Political Science Quarterly, IV. 199 : I. 255. SiMONET, Droit Public Administratif II. 227, 236. Smith, Practice at Quarter Sessions, I. 239 ; II. 196, 216. Smith, Munroe, State, Statute, and Common Law^ in Political Science Quarterly, III. 147 : I. 40. Snow, Marshall W., City Government of St. Louis, in Johns Hopkins Uni- versity Studies in Historical and Political Science, V. 135-155 : I. 204, 209, 213, 216, 218. Stengel, Lehrbuck des Deutschen Verwaltungsrecht, I. i, 4, 121, 154, 158; II. I, 128, 271. Stengel, Organisation der Preussischen Verwaltung, I. 41, 114, 268, 303, 304, 308, 311, 312, 315, 319, 323, 324, 326 ; II. 248-251, 253-256, 258. Stengel, IVorterbuch des Deutschen Verwaltungsrecht, 1. 115, 305 ; II. 66, 76, 83, 87, 100, 122, 244, 245. Stephen and Miller, The County Council Compendium, I. 242, 245. Stimson, American Statute Law, I. 7, 27, 74-76, 78-80, 102, 103, 135, 179, 227 ; II. 18-21, 70, 160, 287, 300, 301. Stone, Practice of yustices of the Peace at Petty and Special Sessions, 9th Ed. I. 239, 241. Stubbs, Constitutional History of England, I. 97, 122, 123, 162, 163; II. 193- 195. Todd, Alpheus, Parliamentary Government in England, I. 98-101, 129, 132, 143, 148, 150 ; II. 53, 76, 85, 155, 273, 274, 290, 292. Viner, Abridgment, II. 201, 202. Von ROnne, Staatsrecht der Preussischen Monarchic, II. 49, 51, 52, l6i, 162. Wharton, Criminal Law, I. 18 ; II. 108. Wharton, Criminal Pleading and Practice, II. 182, 183. Whitridge, F. W., Rotation in Office, in the Political Science Quarterly, IV. 284: II. 91. Whitridge, F. W., Legislative Inquests, in Political Science Quarterly, I. 84: II. 270. WiGRAM, The Justices' Note-Book, I. 239, 240. Wood, History of Long Island, I. 169. Worthington, see Parker and Worthington. ZORN, Das ReichsstcMtsrecht, I. 16, 93-96, 116-119, 129, 140. INDEX. Acceptance of office necessary to valid incumbency, ii. 24 Acceptance of resignation of officer, ii. 93, 94 Accounts, court of, in France and Germany, ii. 291 ; examination of by legislature, ii. 291 Administration, application of, to the courts to execute the law, ii. 124 ; branches of, i. 2-4 ; commercial action of, i. 9 ; ii. 103 ; contractual acts of, i. 35 ; controlled by the legislature, i. 33 ; relation of, to courts, i. 34 ; definition of, i. 4 ; fills up details in the administrative law, i. 28 ; ii. no ; discretion of, )j. 136; expresses will of the state, ii. 106 ; executes the will of the state, ii. 119 ; a function of government, i. I ; participation in, of localities, i. 38 ; importance of remedies against action of, ii. 105 ; repre- sentative of the sovereign, i. 10 ; an organization, i. 4 ; powers of compulsion of, ii. J20 ; records papers, ii. 131 ^ socialistic action of, ii. 104, 130 ; summary procedvire of, ii. 126, 127 ; sovereign or gov- ernmental action of, i. 10 ; ii. 103 ; when it may apply physical force, ii. 122 Administration, see Executive Administration of financial affairs, i. 3 Administration of foreign affairs, i. 2 Administration of internal affairs, i. 3 Administration of judicial affairs, i. 3 Administration of justice, i. 3 Administration of military affairs, i. 2 Administrative acts of special applica- tion, i. 35 ; ii. 112 Administrative action, directions of, i. 2 ; ii. 102 ; methods and forms of, ii. 102 Administrative centralization, ii. 140 Administrative control, in general, ii. 140 ; over localities, i. 43 ; in Eng- land, i. 259 ; in France, i. 290, 292 ; in France over general councils of the departments, i. 280 ; in Prussia over localities, i. 314, 336 ; in United States, i. 228 Administrative courts, in France, ii. 220 ; councils of the prefecture, ii. 233 ; council of revision, ii. 237 ; council of state, ii. , 238 ; courts of enumerated jurisdiction, ii. 221 ; educational courts, ii. 236 ; freedom of appeal, ii. 225; judges of, not inde- pendent of administration, ii. 223 ; judges of, professional and learned in the law, ii. 224 ; jurisdiction of, ii. 226 ; procedure in, ii. 226 Administrative courts in Germany, ii, 248 309 3IO INDEX, Administrative courts in Prussia, cir- cle committee, ii. 252 ; district committee, ii. 253 ; jurisdiction of, ii. 248 ; organization of, ii. 251 ; supreme court, ii. 255 ; procedure in, ii. 256 Administrative execution, ii. 127 ; of government claims, ii. 151 Administrative function of executive power, i. 50 Administrative jurisdiction in general, ii. 146, 190 ; definition of, ii. 148 ; history of, in England, ii. 192 ; history of, in France, ii. 217 ; in France, appeal to council of state for excess of powers, ii. 229 ; his- tory of, in Germany, ii. 240 ; in Germany, administrative courts, ii. 245 ; in Germany, powers of the ordinary courts, ii. 244 ; in the Uni- ted States, of federal courts, ii. 210; when courts may review decisions of questions of fact and expediency, ii. 206 Administrative law, aims of, ii. 138 ; complements constitutional law, i. 8 ; definition of, i. 8 ; distinguished from constitutional law, i. 8, 15 ; distinguished from criminal law, i. 16 ; distinguished from international law, i. 15 ; distinguished from pri- vate law, i. 10, 14 ; exists in Eng- land and United States, i. 6 ; details of, filled up by the administration, ii. no ; meaning of term, i. 7, 8 ; use of term beginning in England and United States, i. 7 ; nature of rules of, ii. 106 ; protected by crim- inal law, i. 17 ; reason of failure to recognize it in England and United States, i. 6, 7 ; reason for separate treatment of, i. 9 ; sanctioned by the penal law, i. 16 ; ii. 108 ; supple- ments constitutional law, i. 8 Administrative orders, i. 35 ; ii. 112 Administrative procedure, ii. 115 Age as a qualification for office in United States, ii. 31 American local administration, i. 178 {^See Local Administration in United States.) Amtsbezirk in Prussia, i. 320 Amtsvorsteher in Prussia, i. 303, 316. {^See Justice of Peace in Prussia.) Appointment to office, aim of method of, ii. 16 ; by legislature, constitu- tionality of, ii. 22 ; law of, ii. 22 ; may not be revoked, ii. 23 ; what constitutes an, ii. 22 Appropriations, control of legislature over, ii. 279 ; permanent annual, in United States, ii. 284 Arrest as a means of executing the law, ii. 121 Arrondissement in France, i. 283 Assessments, ii. 113 Assessor in German civil service, ii, 51 Authority, administrative, ii, i B Ballot, ii. 20 ; secrecy of, in United States, ii. 21 ; not thrown out by courts for trifling irregularities, ii. 21 Bezirk, in Prussia, i. 305. {See Gov- ernment in Prussia.) Bezirksausschuss, in Prussia, i. 307, {See District committee in Prussia,) Bishops in England, appointed by Prime Minister, i. 144 Bismarck, influence of, on Prussian local administration, i. 300 Board of education, i. 203 Board of guardians in England, i. 248 Board of officers, ii. 81 Board of supervisors, power of, i. i8o Boards, when advantageous, ii. 7 Borough, see Cities and Villages. Borough in United States, i. 218 {See ViHage.) Branches of administration, i. £ INl^EX. 3" Bundesrath, i. ii6. {See Federal council.) Bureaucracy, the administrative sys- tem of Europe, ii. 9 ; character of, ii. 9 : evils of, ii. 10, et seq. ; when advantageous, ii. 12 Burgomaster in Prussia, general powers of, i. 333 ; member of city committee, i. 330 Cabinet in England, how formed, i. 143 ; origin of, i. 126 ; in France, i. 138 ; in Germany, i. 141 ; in United States, i. 134 Case, statement of, ii. 196, 216 Cause for removal of officers review- able by courts, ii. 98, 206 Central administration, i. 48 ; sphere of, i. 45 Central administrative control over cities in Prussia, i. 330 Central and local government in Prussia, i. 301, 314 Central approval of local police ordi- nances, ii. 112 Central government, sphere of, i. 39, 45 Centralization of the administration, ii. 140 Certiorari, lost its importance in Eng- land, ii. 197 ; power of federal courts to issue, ii. 211 ; purpose of, ii. 200 ; weight of evidence may be considered on, ii. 207 ; {See Writs, common law) Chancellor in England, ii. 193 Chancellor of German empire, control of Federal Council over his ac- counts, i. 119 ; head of adminis- tration, i. 140 ; presides over Fed- eral Council, i. 1 16 ; only responsible minister of empire, i. 94 ; responsi- ble for acts of Emperor, i. 95, 96 Chancery, court of, ii. 194 Character as a qualification for ap- pointed offices, ii. 32, 46, 48 Chiefs of divisions in United States, ii. 38 Chief examiner in civil service in United States, ii. 39 Circle in Prussia, i. 314 ; pays pro- vincial taxes, i. 313 ; rural, i. 321 ; urban, i. 309, 321 Circle committee in Prussia, i. 315 ; controls Landrath, i. 315 ; formed on the model of the English petty sessions, i. 316 ; jurisdiction of, as an administrative court, ii. 252 ; supervises actions of the justices of the peace, i. 316 Circle diets in Prussia, i. 320 ; elec- tions for, i. 321 ; duties of, i. 324 Circle officers, service as, obligatory and unpaid, i. 316 Citizenship as a qualification for office in United States, ii. 30 City committee in Prussia, i. 330 City comptroller in United States, i. 210 City council, see Municipal council City courts in United States out- growths of city council, i. 200 City departments, see Municipal de- partments, i. 210 City in England, who were originally citizens of, i. 194 ; history of, to i8th century, i. 193 ; incorporation of, i. 196 ; origin of, i. 193 ; origin of city council, i. 195 ; and in United States, somewhat private in char- acter originally, i. 199, 200 ; qito warranto against, i. 197 City in Prussia, administration of central affairs in the cities, i. 330 ; local autonomy of the cities, i. 330 ; departments, i. 334 ; elections, i. 331 ; executive, i. 332 ; obligatory and unpaid service as municipal officer, i. 332 ; police, i. 331 ; ward over- seers, i. 335 312 INDEX. City in United States, i. 193 I history of, i. 199 ; organization of, i. 207 ; power of legislature over, i. 202 ; present public character of, i. 202 ; originally had no taxing power, i. 201 City treasurer in United States, i. 210 Civil courts, control of, over the ad- ministration, ii. 149 _Civil service, in France, ii. 46 ; in Germany, ii. 48 Civil service in United States, chief examiner, ii. 39 ; commissions, ii. 39 ; eligible list, ii. 43 ; general characteristics of present system of filling offices, ii. 45 ; term of pro- bation, ii. 44 Civil-service commission, in England, ii. 56 ; in Germany, ii. 51 ; in United States, ii. 39 Civil-service examinations, compari- son of various plans of, ii. 56 ; in England, ii. 54 ; in France, ii. 47 ; in Germany, ii. 50 ; in United States, ii. 40 Civil-service reform in the United States, ii. 34 Civil-service rules in the United States, ii. 35 ; classification, ii. 37 ; constitutionality of, ii. 35, 36 ; ef- fect of, on power of appointment of heads of departments, ii. 35, 36 Claims of government, how prose- cuted, ii. 150 Clauses acts in England, i. 264 Clerks in civil service in England, ii. 54 ; in France, ii. 47 ; in Germany, ii. 51 ; in United States, ii. 37 Colonial governors in England, im- portant, appointed by Premier, i. 144 Commander-in-chief, member of Privy Council in England, i. 124 Commercial action of administration, i. 9 ; ii. 103 Commission to office not necessary for appointment, ii. 23 Committees of legislature, power of to imprison for contempt, ii. 269, 274 Commonwealth administration in United States, decentralization of, i. 152 Commune in France, i. 285 ; history of, i. 285 ; Napoleonic legislation as to, i. 286. {See Mayor, and Muni- cipal Council.) Compensation of officers, ii. 68. {See Officers, salaries of.) Competitive examinations in Eng- land, ii. 54, et seq. ; in France, ii. 48 ; in United States civil services, ii. 43 Comptroller and auditor-general in England, ii. 292 Conflicts of jurisdiction between judi- cial and administrative courts, ii, 257 Consolidated fund in England, ii. 281 Consolidated municipal corporations act of 1882, i. 254 Contentieux administratif , ii. 226 Constitutional law, aims of, ii. 137 ; distinguished from administrative law, i. 8, 15 Contracts of administration, i. 35 ; of local corporations, ii. 152 ; respon- sibility of government for, in con- tinental Europe, ii. 161 Control over the administration, ii. 135 ; administrative, in general, ii. 140 ; administrative jurisdiction, ii. 190 ; administrative jurisdiction in England and the United States, ii. 200 ; administrative jurisdiction in Germany, ii. 240 ; administra- tive jurisdiction in France, ii. 217 ; court of claims in United States, ii. 156 ; impeachment, ii. 296 ; interests to be regarded in the formation of the, ii. 137 ; judicial, y ii. 142, 144 ; kinds of, ii. 140 ; legis- / lative, ii. 143, ii. 262 ; methods of. INDEX. m ii. 138 ; petition of right in Eng- land, ii. 154 ; power of criminal courts to punish officers, ii. 179 ; powers of federal courts, ii. 210 ; power of police courts, ii. 178 ; suits against government in ordinary courts in United States, ii. 158 ; suits against central administration, ii. 154 ; suits by government, ii. 150 ; suits in civil courts against government for contracts and torts in continental Europe, ii. 161 ; suits against local corporations, ii. 152 ; suits against officers, in France and Germany, ii. 169 ; in United States and England, ii. 163 ; through the- ory of unjust enrichment, ii. 155, 159 ; when courts may review deci- sions of fact and discretion, ii. 206 Coram non judice^ responsibility of oflScers for acts, ii. 164 Councils of advice in France, i. 86, III, 284, 292 Council of appointment in New York, i. 56, 76, 78 Council of Arrondissement in France, i. 283 Council of the king, French, i. 268 Council of ministers, i. 141 Council of the prefecture in France, i. 274 ; administrative courts, ii. 233 Council of revision in France, ii. 237 Council of state in France, an admin- istrative court, ii. 238 ; appeal to, against acts of the President, i. 88, 282 ; appeal to, for excess of powers, ii. 229 ; compared with American Senate, i. 113 ; a council of advice, i. Ill ; functions of, i. iii ; history of, i. 107 ; organization of, i. 108 Council of state in Germany, i. 114 County commissioner inUnited States, origin of, i. 168 ; powers of, i. 180 County in England, i. 241; county aldermen, i. 242 ; the county chair- man, i. 242 ; the county council, local powers of, i. 245 ; the coun- cil, powers of, i. 243 ; the county council, organization of, i. 242 ; the county council, powers of, enumerated by statute, i. 244 ; quali- fications for the county council, i. 242 ; subdivisions of county, i. 246 ; suffrage, i. 242 County in United States, agents of central government, i. 174 ; in American colonies, i. 166 ; has be- come a corporation, i. 172; corporate capacity of, i. 173 ; not originally a corporation, i. 172 ; loose organiza- tion of, i. 181 ; has no sphere of independent action, i. 176 ; officers elected by people, i. 178 ; in New England, i. 185 ; not important in early New England, i. 166 ; in New York, i. 182 ; powers of county au- thority, i. 186 ; important in early southern colonies, i. 166, 190 ; in southern states, i. 189 ; in Virginia, i. 190 Courts, control of, over acts of Eng- lish Crown, i. loi ; control of, over French President, i. 85 ; control of, over action of Federal Council, i. 121 ; control of, over acts of Ger- man prince, i. 93 ; control of, over governor of commonwealth, i. 82 ; executive functions of, i. 29 ; do not control political acts of executive, i. 34 ; power of, to control or revise special acts of administration, i. 35; control of, over President of United States, i. 73; relation of adminis- tration to, i. 34 ; will declare ordi- nances void if illegal, i. 156. {See Judicial authorities.) Court of accounts in France and Ger- many, ii. 292 Court of claims, ii. 156 Court leet, i. 194 314 INDEX. Court of sessions in early American colonies, i. i66 Crime, disqualification for office, ii. 32, 46, 48 Criminal courts, control of, over the administration, ii. 148, 178 Criminal law, aim of, ii. 137 ; dis- tinguished from administrative law, i. 16 ; a law of sanction, i. 17 Crown suits act, ii. 151 Curia regis in England, i. 122 ; ii. 193 Customs administrative law, ii. 107 D Decisions, i. 35 De facto officers, ii. 25 De facto offices, do not exist, ii. 25 Departments, executive, i. 127. {See Executive departments.) Department in France, executive offi- cers of, i. 272 ; general council of, i. 277 ; prefect, i. 272 Department of public works.of finance, etc., see Executive departments, i. 127 Departmental commission in France, i. 275 ; duties of, i. 276 ; how elected, i. 275 Deputies, when not officers, ii. 2 Disciplinary courts in Germany, i. 118 ; ii. 247 Disciplinary power, ii. 86 Discretion of administration, ii. 136 Distribution of powers, the theory of, i. 19. {^See Separation of powers.) District attorney, ii. 181 District in France, i. 283 District of Columbia, power of su- preme court of, ii. 211 District committee in Prussia, appel- late jurisdiction of, i. 308 ; controls action of " government " president, i. 306, 308 ; duties of, i. 308 ; how formed, i. 307 ; jurisdiction of, as an administrative court, ii. 253 District council in France, i. 283 District councils bill in England, i, 252 Dorfschuhen in Prussia, i. 318. i^See Town officers in Prussia.) Droit administratif, i. 6 Due process of law, ii. 116 Duties of officers, ii. 77 Education, general, necessary for ad- mission to civil service in Europe, ii. 47, 49 Educational courts in France, ii. 236 Election to office, aim of method of, ii. 16 ; effect of ineligibility on, ii. 22 ; faults of this method of fill- ing office, ii. 17 ; law of, in United States, ii. 18 ; notice of place of, ii. 20 ; notice of time of, ii. 19 ; regu- lations of, directory, ii. 20 ; what constitutes an, ii. 21 ; when the proper method of filling offices, ii. 17 Eligible list, in English civil service ii. 55 ; in United States civil service, ii. 43 Elective principle in localities in United States, i. 168 Employment in government, ii. 2 ; created by contract, ii. 3 ; distinc- tion of, from office, ii. 2 Ends of the State, i. 38 English administration has become centralized, i. 154 English Crown, acts of, countersigned by a minister, i. 99 ; administrative powers of, i. 100 ; an authority of general powers, i. 97 ; historical sketch of, i. 97 ; general position of, i. 97 ; irresponsible, i. 99, loi ; limitations of power of, i. 99 ; ordi- nance power of, i. loi ; effect of principle of parliamentary respon- sibility of ministers on position of, i. 100 ; remedies against acts of, i. lOI INDEX. 315 Equitable remedies in England and United States, origin .of, ii. 194 ; rules as to, ii. 209 Examinations for entrance into muni- cipal service in United States, i. 217. i^Sei Civil service, competitive examinations.) Exchequer in England, origin of, i. 122 Execution against local corporations, ii. 153 Execution of the law, ii. 120 ; admin- istrative, ii. 127 ; by judicial process, ii. 124 ; means of, ii. 119 ; methods of, ii. 123 Execution of the will of the state by the administration, ii. 119 Executive, power of to initiate legisla- tion, i. 27 ; legislative acts of, i. 28, 35 ; legislative functions of, i. 26 ; ordinance power of, i. 27 ; polit- ical acts of, not controlled by courts, i. 34 ; position of, i. 37 ; relation of, to courts, i. 34 ; relation to other authorities, i. 31 ; relation to legislature, i. 31 ; veto power of, i. 27. {^See Administration.) Executive in England, i. 97. {See English Crown.) Executive in France, i. 83 etseq. {See President of France.) Executive in Germany, i, 89. {See German prince and German Empe- ror.) Executive in United States, i. 52