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 ^AW 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 THR UNIVERSITY FACULTY OF POLITICAL SCIBNCB, COLUMBIA COI.LEGF.IN THE CITY OF NKW YORK STUDENTS EDITION TWO VOLUMES IN ONE * OF THE UNIVERSIT" OF G. P^ft&f&M'S SONS NEW YORK AND LONDON 3be Tknickerbocfcer press . .... . . -.. COPYRIGHT, 1893 BY FRANK J. GOODNOW Entered at Stationers' Hall, London BY G. P. PUTNAM'S SONS Ybe ttnicktrtwcfter KM, Hew Vorft 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 VOL. I : . '.'.'. 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 Comparative 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 ike 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 with 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 BY FRANK J. GOODNOW I ORGANIZATION . A^ MOD COMPARATIVE ADMINISTRATIVE LAW. TABLE OF CONTENTS. VOLUME I. ORGANIZATION. BOOK I. THE SEPARATION OF POWERS. CHAPTER I. ADMINISTRATION. PACK I. Administration as a function of government I SL. The administration as an organization 4 CHAPTER II. ADMINISTRATIVE LAW. I. Definition ........... II. Necessity of separate treatment III. Distinction of administrative law from private law .... IV. Distinction of administrative law from other branches of public law, CHAPTER III. THE THEORY OF THE SEPARATION 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 .29 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 II. Relation to the courts . . . . . . . . . 34/ 1. Political acts . ........ 3^ 2. Legislative acts . . . . . . . . 3* 3. Contractual acts . . . . . . . . 5: 4. Administrative acts of special application . . . . -35 III. The position of the executive 37 x CONTENTS. CHAPTER VI. TERRITORIAL DISTRIBUTION OF ADMINIS- TRATIVE FUNCTIONS. MMM I. Participation of the localities in administration .... 38 II. The English method 41 III. The continental method 43 IV. The sphere of central administration ...... 45 BOOK II. CENTRAL ADMINISTRATION. DIVISION I. THE EXECUTIVE POWER AND THE CHIEF 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 . . . . . . . -53 II. The executive power in Massachusetts ...... 56 III. The executive power in Virginia . 58 IV. The American conception of the executive power in 1787 . . 59 V. History of the executive power in the early national government . 62 1. Original position of the President ....... 62 2. 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 1. Administrative powers . 72 2. Remedies against the action of the President 73 II. The commonwealth governor 74 1. The governor a political officer 74 2. His power of appointment 76 3. His power of removal 78 4. His power of direction 79 5. His power over the administrative services 80 6. General position of the governor . . . . . .81 7. Remedies against his action . ."."... 32 CONTENTS. xi CHAPTER IV. THE EXECUTIVE POWER AND AUTHORITY IN FRANCE. PAGE 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 IO2 II. In the national government 103 III. In the commonwealth governments ....... 104 IV. Comparison 105 CHAPTER II. THE EXECUTIVE COUNCIL IN FRANCE. I. History . . 107 II. Organization 108 III. Functions ... m xii CONTENTS, CHAPTER III. THE EXECUTIVE COUNCIL IN GERMANY. PACK 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/f 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 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 1. In the United States and England 151 2. In France and Germany 154 IV. The ordinance power . . . 156 V. Special acts of individual application . . . . . T 57 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. PACK 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 . . . . . . . .173 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 II. The New England system 185 1. 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 municipality ..... 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. 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 . . . 228 1. 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. <^j 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 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 . ^Ji CHAPTER VI. THE FRENCH SYSTEM OF LOCAL ADMINIS- TRATION. / I. The continental method in general 266 JI. History of the French system of local administration . . . 268 1. Up to the revolution 268 2. The revolution 269 3. The Napoleonic legislation . .271 III. The department 272 1. The prefect 272 2. The council of the prefecture 274 CONTENTS. xv 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 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 (Obcrpriisident} ....... 302 2. The provincial council ........ 33 3. The government board and president ...... 35 4. The district committee / ....... 307 5. The provincial diet ......... 38 6. The provincial committee ........ 3 11 III. The circle authorities ......... 3*4 1. The Landrath .......... 3*5 2. The circle committee ......... 3*5 3. The justice of the peace ..... ... 3*6 4. Town officers .......... 31% 5. The circle diet .......... 320 IV. The cities ........... 328 1. The city council ..... ..... 33* 2. City executive .......... 332 3. City departments ......... 334 V. General characteristics of the Prussian system ..... 336 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. TABLE OF CONTENTS. VOLUME II. LEGAL RELATIONS. BOOK IV. THE LAW OF OFFICERS. CHAPTER I. OFFICES AND OFFICERS. PACK 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 19 2. Necessity of notice . . . 19 3. Method of voting (ballot) 20 4. What constitutes an election to office 21 III. The law of appointment in the United States 22 IV. Acceptance of the office . . 23 V. Officers de facto 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. Qualifications for office in France 46 1. General qualifications 46 2. Qualifications of capacity 47 xix xx CONTENTS. IV. Qualifications for office in Germany ...... 48 1. General qualifications ......... 48 2. Qualifications of capacity 49 V. Qualifications for office in England . 52 1. The political 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 . . 64 III. Promotion ...........66 IV. Compensation 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 89 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. 101 CHAPTER II. EXPRESSION OF THE WILL OF THE STATE. I. Unconditional statutes . 106 II. Conditional statutes 109 1. Administrative ordinances .no 2. Special administrative orders I* 2 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 1. Judicial process 124 2. Administrative execution . . 127 CHAPTER IV. THE SOCIALISTIC ACTION OF THE ADMINISTRATION. 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. 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 . 149 1. Suits by the government against individuals . . . .150 2. Suits by individuals against local corporations . . . .152 3. Suits by individuals against the central government . . .154 a. The English rule 154 b. The rule in the United States 156 c. The continental rule . . 161 xxii CONTENTS. PACK II. Suits for damages against officers 163 1. The English rule . . . . . . . . . . 163 2. 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 attorney 181 3. Public prosecutor . . . . . . . . .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. t\. * I. At common law .......... 200 1. The special remedies 200 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 . 210 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 216 CHAPTER VI. THE ADMINISTRATIVE JURISDICTION IN FRANCE. I. History 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 2i 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 PACK 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 CHAPTER VII. THE ADMINISTRATIVE JURISDICTION IN GERMANY. I. History . 240 1. 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 office 246 e. The disciplinary court and chambers ..... 247 f. The imperial superior marine office ...... 247 2. The Prussian administrative courts 348 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 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. PACK 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 309 . TABLE OF CASES CITED. . v ^ >* V- VOL. PACK Ableman v. Booth, 21 How., 506 ..... . . II. 213 Aldenv. Alameda Co., 43 Cal., 270 . . . . . II. 153 Anderson v. Dunn, 6 Wheaton, 204 ...... II. 269 Andrews v. For tland, 79 Me., 484 ....... II. 270 Antoniv. Greer.how, 107 U. S., 769 ..... II. 257, 285 Aster v. Mayor, 62 N. Y., 567 ....... I. 225 Attorney-General \. Bar stow, 4 Wis., 467 ..... II. ,208 - v. Bishop of Manchester, L. R. 3Eq., 436 . . I. 101 - - v. Boston, 123 Mass., 460 ..... II. 205 - v. Detroit Common Council, 58 Mich., 213, 215, 219 ...... II. 27, "5 - v. Squires, 14 Cal., 13 ..... II. loo Augusta v. Sweeny, 44 Ga., 463 ....... II. 101 Aurora, The Brig, 7 Cranch, 382 ....... I. 28 Badger v. United States, 93 U. S., 599, 603 ..... II. 90, 94 Bailey v. Mayor, 3 Hill, N. Y., 531 ..... I. 226, II. 152 Baldwin v. Kansas, 81 Ala., 272 ....... II. 72 Baltimore v. Board of Police, 15 Md., 376 ..... I. 204 -- v. Johnson, 62, Md., 225 ...... II. 112 Bank of Chenango v. Brown, 26 N. Y., 467, 469 . . .1. 131, II. 270 Barbour v. U. S., 17 Ct. of Cl., 149 ...... II. 94 Barker v. People, 3 Cowen, N. Y., 686 ...... II. 27 Barry, Ex parte, 2 How., 65 ........ II. 212 Beal\. McVicker, 8 Mo. App., 202 . . . . . . II. 71 Bell\. Hearne, 19 How., 252 ....... I. 158 Benson v. Mayor, 10 Barbour, N. Y., 223 ..... I. 14 Biddlev. Willard, 10 Ind., 62 ....... II. 94 Binninger, In re, 7 Blatchford, U. S. C. C., 159 . . . . II. 212 Blake v. United States, 14 Ct. of Cl., 462 ..... II. 94 Bliss v. Lawrence, 58 N. Y., 442 ....... II. 71 Bloom field v. Charter Oak Bank, 121 U. S., 121 . . . I. 172, 1 83 Blounfs Trial .......... II. 5 Board of Police v. Grant, 17 Miss., 77 . . . . . .II. 78 Banner v. United States, 9 Wall., 156 ...... II. 157 xxvi TABLE OF CASES CITED. VOL. PAGB Booth v. United States, 21 How., 506 II. 213 Bowerkackv. Morris, Wallace's Reports, C. C., 119 . . . II. 100 Brewer v. Davis, 9 Humph., Tenn., 208 . . . . . II. 19 v. Kidd, 23 Mich., 440 II. 213 Br&dhcadv. Milwaukee, 19 Wis., 624 11.19,20 Brown v. Turner, 70 N. C., 93 I. 2O, II. 3 v. United States, 6 Ct. of Cl., 177 II. 165 Buchanan v. Alexander, 4 How., 20 . . . . .II. 71 Buckv. City / Lockport, 6 Lansing, N. Y., 251 . . . . II. 204 Bunting v. Gales, 77 N. C., 283 II. IOO #rrA v. Hardvticke, 23 Grattan, Va.,5l II. 205 Burnett v. Newark, 28 111., 62 II. 112 Rum ham v. Morrissey, 14 Gray, Mass.. 226 II. 270 Butter \. Penfta., 10 How., 402 I. 12, II. 69, 100 Butter-north v. United States, 1X2 U. S. t 50 . .1. 153, 158, II. 213, 216 Campbells. United States, 107 U. S. f 407 I. 156 Cherokee Nation v. Georgia, 5 Peters, i I. 34 Christy, Ex parte, 3 How., 392 II. 212 City of Rochester v. Town of .:us,i, 80 N. Y., 302 . ... I. 174 Clicquot s Champagne, 3 Wall., 114 I. 18 Chdfelterv. State, 86 N. C.,51 11.159,160 Commonwealth v. Briggs, 7 Pickering, Mass., 176 . . . . II. 184 v. Byrne, 20 Grattan, Va., 165, 195 , . .II. 122 v. City of Roxbury, 9 Gray, Mass., 451, 511 . . I. 172 v. Commissioners, I S. & R., Pa., 380 . . .II. 204 v. Dennison, 24 How., 66 . . .II. 203, 213 v. Hardin, Barry, K'y, 160 II. 99 v. King, 8 Gray, Mass., 501 II. 182 v. Knapp, 10 Pickering, Mass., 477 . . .II. 182 v. McClelland, 83 Kentucky, 686 . . . . II. 18, 19 v. Neeser, 44 Pa. St., 341 .... II. 63, 204 v. Simons, ^ Philadelphia, 167 . . . . II. 182 v. Slifer, 25 Pa. St., 23 II. 100 v. Swank, 79 Pa. St., 144 II. 63 v. Tuck, 20 Pickering, Mass., 356 . . .II. 184 v. Willard, 22 Pickering, Mass., 476 . . . I. 18 v. Williams, 79 Kentucky, 42 . . . . II. 99 v. Williams, 9 Gushing, Mass.. 582 . . .II. 182 Confiscation Cases, 20 Wall., 92 I. 73 Conway v. City of St. Louis, 9 Mo. App., 488 . . . . II. 26 Conner \. Mayor, 5 N. Y., 285 II. 69 C?//!wf v. J?//w, 7 Jones, N. C., 545 . . ; . . . II. 208 Converse v. U. S., 21 How., 463 II. 68 Cunningham v. Mitchell. 67 Pa. St II. 166 Dale v. Irwin, 78 111., 170, 181 II. 20 Dnlton, Exparte, 44 Ohio St., 142 II. 271 TABLE OF CASES CITED. ;xxvii VOL. PAGB DarUy v. The Queen, 12 Clark & Finlay, 520, 541 , . . . II. 62 v. State, 8 Blackford, Ind., 329 . . . . . . II. 96 DarKngton v. New York, 31 N. Y., 164 . . . . . I. 2oa Darroi0 v. People, 8 Col., 417 ..'.... II. 27, 29 Dartmouth College v. Woodward \ 4 Wheaton, 636 . . . I. 12 Denton v. Jackson, 2 Johnson Ch., N. Y., 320 . . . . I. 172 Detroit v. RedJUld, 19 Mich. ,376 II. 68 Detroit Free Press Co. v. Audi tor s, 47 Mich., 135 . . . .II. 3 Dicksonv. People, 17 111., 191 II. 96 Diggs v. 5Vfc/*, 49 Ala., 311 II. 26 Dolan v. 7** j*fo>w, **., 68 N. Y., 274 II. 26 Donaldson, Exparte, 44 Mo., 149 II. 184 Dowv. Chicago, n Wall., 108 II. 209 Dubuc\. Voss, 19 La. Ann., 210 II. 98 Dugan v. (7m'&rf .Ste/w, 3 Wheaton, 172 II. 149 Dunlop v. Munroe, 7 Cranch, U. S., 242 II. 3 Dullam v. Wilson, 53 Mich., 392 I. 82, 99 Durandv. Hollis, 4 Blatchford, C. C., 451 1-74 Eastman v. Curtis, 4 Vt., 616 . . . . . . .II. 3 Edwards v. United States, 103 U. S., 471 II. 94 Eliot v. Swartout, 10 Peters, U. S., 37 I. 151 Ellis v. Earl Grey, I Simon, 214 II. 210 v. State, 4 Ind. , I II. 3 Erskinev. Hohnbach, 14 Wall., 613 II. 166 Evans v. Trenton, 24 N. J. L., 764 II. 68 Evansvillev. State, 118 Ind., 426 . . . . I. 227, II. 22,27 Rx parte, see name of party Farrington\. Turner, 53 Mich. , 27 II. 20 Field, Exparte, 5 Blatchford, C. C., 63 ... I. 72, 156, II. 208 T. Clark, U. S. Sup. Ct., Oct. term, 1891 . . . . I. 28 Fisk v. Police Jury, 116 U. S., 131 II. 70 Fitssimmons v. Brooklyn, 102 N. Y., 536, 539 . . . .II. 68, 70 Fordv. Commissioners, 22 Pac. Rep., 278 II. IOI Foster v. Kansas, 112 U. S., 201 ....... II. 99 Fout v. State, 3 Haywood, Tenn., 98 II. 182 Fremont v. Crippen, 10 Cal. 211 . II. 204 Gainesv. Thompson, 7 Wall., 347 II. 205 Galesburgy. Hawkinson, 75 111., 152 I. 24 Gates v. Delaware Co., 12 Iowa, 432 II. 94 Gibbons \. United States, 8 Wall., 269 11.157,159 Goddardv. Petersham, 136 Mass., 235 II. 68 Gonzales v. State, 26 Texas, 197 II. 183 Gordons. United States, 117 U. S., 697 I. 24 Graham v. Norton, 15 Wall., 247 II. 213 Granvillev. County Commissioners, 97 Mass., 193 . . . .II. 204 Gratiot\. United States, 4 How., 80 I. 156 xxviii TABLE OF CASES CITED. VOL. PACK Green v. Burke, 23 Wendell, N. Y., 490, 503 .... II. 26 v. Mumford, 5 R. I., 472 II. 209 Gregorys. New York, 113 N. Y., 416 II. 100 Grier v. Taylor , 4 McCord, 206 . . . . . .II. 208 Gulick v. New, 14 Ind., 93 JI. -23 Hadley v. Albany, 33 N. Y., 603 II. 21 Hall, In re, 50 Conn., 131 II. 28, 32 Hamilton County v. Mighels, ^ Ohio St., 109 . . . .1.42,174 Hamlin v. Kassafer, 15 Oregon, 465 II. 25 Hartford \. Bennett, 10 Ohio St., 441 II. 24 Hartman v. Greenhow, IO2 U. S., 672 II. 257 Hatch v. Mann, 15 Wendell, 44 . . . . . II. 72 Hayburn's Case, 2 Dallas, 408 I. 24 Hennen, Ex parte, 13 Peters, 230 I. 149, II. 98, 99 Hightower v. Ober banker, 65 Iowa, 347 II. 78 Higleyv. Bunce, iQConn., 436 II. 112 Hill\. Boston, 122 Mass., 344 . . . . . I. 172, 174, II. 344 Hinze T. People, 92 111., 406 . II. 23 Hite v. State, 9 Yerger, Tenn., 198 II. 182 Hoke v. .ftW II. 26 Kendall >. United States, 12 Peters, 524 . . I. 69, II. 155, 165, 211 Kennardv. Louisiana, 92 U. S., 480 II. 87, 99, 206 Kilbourn v. Thompson, 103 U. S., 168 II. 269 King v. Barker, i Wm. Blackstone, 352 II. 202 v. Justices, 4 Dow. & Ry., 735 . . . . . . II. 205 v. Severn (Sr* Wye R'y Co., 2 B. & Aid., 644 .... II. 204 TABLE OF CASES CITED. xxix YOL. PAGB Kneib v. People, 6 Hun, N. Y., 238 II. xia JCnowles v. Yeates, 31 Cal., 82 II. 20 Koratz v. Franklin Co., 76 Pa. St., 154 II. 69 Langfordv. U. S., 101 U. S., 341 . . . . . II. 157, 159 Lansing v. County Treasurer, I Dillon, C. C., $92 . . . II. an Lawrence v. Rice, 12 Mete., Mass., 527, 533 II. 90 Levy Court v. Coroner* 2 Wall. , 501 I. 173 Lewis v. Staff, 96 N. Y., 71 II. 159 Lindabury v. Freeholders, 47 N. J. L., 417 II. 68 Zt///i v. Barreme, 2 Cranch, 170 I. 156 Longacre v. .Stefc, 3 Miss., 637 II. 26 Lorillardv. Town of Monroe, II N. Y., 398 . . . I. 42. 173, 185, 228 ZttAU' v. Shepherd, 16 Ind., 368 II. 96 Luther v. Borden, 7 How., I . I. 34 Marbury v. Madison, i Cranch, 137 II. 23, 82, 211 Mayor v. Furze, 3 Hill, 612 . II. 77 - v. 5/afc, 15 Md., 376 II. 22, 28 McCullough v. Common-wealth, 67 Pa. St., 30 ... II. 180, 182 Mclntirf v. Wood, 7 Cranch, 504 II. 211 McKcever v. United States, 14 Ct. of Cl., 396 . . . . II. 157 McMillan v. Anderson, 95 U. S., 37 II. 127 Melvin's Case, 68 Pa. St., 333 II. 20 Memphis v. Halsey, 12 Heiskell, Tenn., 210 II. 210 Meriwether v. Garrett, 102 U. S., 472 I. 12 Merryman, Ex parte Taney's Rep., 246 . . . . I. 74, II. 208 Metropolitan Board of Health v. Heister, 37 N. Y., 66l . . I. 225 Mil-ward v. Thatcher, 2 T. R., 8l II. 95 Mississippi v. Johnson, 4 Wall., 475 ...... I. 34, 74 jJ/0r<3/ v. T^ww of New fane, C Barb., N. Y., 545 . . .1. 165, II. 152 Morgan v. Register, Hardin, K'y, 609 II. 210 v. United States, 14 Wall., 31 II. 157 Morrel\. Haines, 2 N. H., 246 II. 5 Mowers v. Smedley et al, 6 Johnson's Ch., N. Y., 79 . . .II. 202 Murray's Lessee v. Hoboken Land and Improvement &., 18 How., 272 II. 128, 151 Nabob of Carnatic v. East India Co., I Vesey, Jr., 375 . . . I. 34 Neagle, In re, 135 U. S., I, 64-68 I. 32, 64-66, 72 New Jersey v. Wilson, 7 Cranch, 164 . . . . . I. 13 Newman v. Beckwith, 61 N. Y., 205 II. 90 Nichols v. Comptroller, 4 Stew, and Port., Ala., 154 . . II. 73, 287 Matter of, 6 Abbott's New Cases, N. Y., 494 . . . II. 98 North Hempstead\. Hempstead, 2 Wendell, N. Y., 109 . . I. 172 Norton v. Shelby Co., ii8U. S., 425, 442 II. 25 O'Hara v. State, 1X2 N. Y., 146 II. 156 Ohiov. Covington, 29 Ohio St., 102 II. 27 CfLeary v. Board of Education, 93 N. Y., 1 . . . . . II. 70 xxx TABLE OF CASES CITED. Vttl.. VAOK OU Mosness, In the matter of, 39 Wis., 509, 511 . . . .II. 28 Olmsteadv. The Mayor, etc., 42 N. Y. Super. Ct., 487 . . . II. 2 Olmstedv. Dennis, 77 N. Y., 378 . II. 93 Orono, The Schooner, I Gallison C. C. t 137 I. 74 Oshkosh v. Schwartz, 55 Wisconsin, 483 I. 18 Pace v. People, 50 111., 432 . . . . . . . II. 94 Parker v. Smith, 3 Minn., 240 . II. 29 Patterson v. Miller, ^ Mete. K'y, 493, 496 II. 26 v. United States, 2 Wheaton, 221 II. 211 Patton v. United States, 7 Ct. of Claims, 362 II. 72 Peacock v. State, 42 Ind., 393 II. 182 Peck v. Rochester, 3 N. Y. Sup., 872 II. 33, 35 Penn. v. Lord Baltimore, i Vesey, 467 I. 34 People v. Albertson, 55 N. Y., 50 I. 226 tx. rel. Killeen v. Angle, 109 N. Y., 564 . . . . II. 36 v. Auditors, 82 N. Y., 80 II. 78 v. Beach, 19 Hun, N. Y., 259 ....... II. 206 v. Ben nett, 29 Mich., 451 I. 24 v. Betts, 45 N. Y., 660 II. 203 v. Bissell, 19 111., 229 II. 208 Y. Board of Apportionment, 64 N. Y., 627 . . . .II. 203 v. Board of Fire Corns., 73 N. Y., 437 . I. 149, H. 98, 99, 206 v. Board of Police, 39 N. Y., 506 II. 20* v . , 72N. Y.,4I5 .... 11.87,206 v. Brady, 56 N. Y. t 182 ....... II. 208 v. Brooks, i Denio, 457 II. 79 v. Canal Board, 55 N. Y., 390 II. 205 v. Carrique, 2 Hill, N. Y., 93 II. IOO v. Civil Service Boards > 103 N. Y., 657 . . . . I. 226 v. Clute, 50 N. Y., 451 II. 22, 29, 97 v. Collins, 19, Wendell, N. Y., 56 .... II. 205, 206 v. Commissioners, 30 N. Y., 72 II. 205 v . , 82 N. Y., 506 II. 203 v. Common Council, 77 N. Y., 503 . . . . .II. 5 v. Common Council of Buffalo, 16 Abbott's New Cases affirmed in 38 Hun, N. Y., 637 . . . .1. 215, II. 205 v. Coon, 15 Wendell, N. Y., 277 II. 79 v. Corporation of New York, 3 Johnson's Cases, N. Y., 79 . II. 202 v. Cowles, 13 N. Y., 350 ....... II. 20 v. Curtis, 50 N. Y., 321 I.82,n.2o8 v. Dayton, 55 N. Y., 380 1.131,11.270 v. Detroit, 28 Mich., 228 I. 227 v. Draper, 15 N. Y., 532 I. 204, 22 v. Durston, 6th Rep. N. Y. Civ. Serv. Com., 231 . . II. 36 v . Fairchild, 67 N. Y., 834 . . . . . . . . II. 203 v. French, 119 N. Y., 493 . II. 206 TABLE OF CASES CITED. xxxi VOL. PACK y. French. 119 N. Y., 502 II. 206 v. Goodwin, 22 Mich. , 496 II. 63 v. Green, 58 N. Y., 295 II. 96, *4 y. Hall, 80 N. Y., 117 II. 63 y. Halsey, 37 N. Y., 344 . II. 205 v. Harlow, 29 111., 43 II. 72 v. Hartwell, 12 Mich., 508 II. 20 y. #*//, 53 N. Y., 547 II. 203 v. , 13 N. Y. Supplement, 186 ; 126 N. Y., 497 . I. 8a, II. 208 v. Hopson, i Denio, N. Y., 574, 579 II. 26 v. Hurlburt, 24 Mich., 44 . . . I. 82, 23, 227. H- 22. 27 v. Hurst, 41 Mich., 328 . . . . . . .II. 182 v. Keeler, 99 N. Y., 463 II. 270 v. Kelduff, 15 111., 49* ' II- 6 3 v. Lawrence, 56 N. Y., 182 I. 82 v. Learned, 5 Hun, N. Y., 626 . . . . . .II. 270 v. Leavitt, 41 Mich., 470 II. 204 v. Leonard, 73 Cal., 230 II. 97 v. Mahaney, 13 Mich., 481 I. 204. II. 22 v. Marble, n 8 Mass., 548 II. 72 y. May, 3 Mich., 598 II. 29 v. Mayor, 10 Wendell, N. Y., 395 II. 204 v. McCall,^ How. Pr., N. Y., 442 II. 70 v. Murray, 70 N. Y., 521 . . . . . . . II. 23 T. Nevada. 6 Cal., 143 I. 24 v. AV/of*, 7 Barbour, N. Y., 477 II. 79 v. Palmer, 52 N. Y., 84 II. 89 v. Pease, 27 N. Y., 45, 84 II. 21, 206 v. Phillips, 67 N. Y., 582 II. 204 y. Pinckney, 32 N. Y.. 377. . . . . . . I. 225 v. Platt, 50 Hun, N. Y., 454 I- 8 *. H- 2o8 v. Police Commissioners, 114 N. Y. t 245, 247 ... II. 68 v . , 43 How. Pr., N. Y., 385 . . II. 202 y. Porter, 6 Cal., 26 II. 93 v. Stephens, 71 N. Y., 527 II. 156 v. Stillwell, 19 N. Y., 531 II. 203 y. Supervisors, 17 Hill, N. Y., 195 II. 287 : v. Tieman, 30 Barb., N. Y., 193 II. 26, 90 v. Trustees, 54 Barb., N. Y., 480 ..... II. 205 v. Walter, 68 N. Y., 403 II. 204 v. Weber, 89 111., 347 II. 26 v. Woodruff, 32 N. Y., 355 II. 23 Ptrryv. Shepherd, 78 N. C., 83 II. 210 Pierce v. Boston, 3 Mete. Mass., 520 I. 12 Pike v. Megoun, 44 Mo. , 491 II. 169 Plymouth v. Painter, 17 Conn., 585 II. 25 xxxii TABLE OF CASES CITED. VOL. PACK Poindexter v. Greenhow, 114 U. S., 270 II. .257 Privettv. Bickford, 26 Kan., 52 II. 29 Queen v. Eastern Counties R'y Co., 10 Ad. & El., 531 . . .II. 204 v. Hunger ford, II Mod. Rep .II. 201 v. Lords, 4 Ad. & El., 286 II. 209 v . 4 Eng. Rep., 277 . II. 209 v. L. R., 7 Q. B., 387 . . . . . II. 209 R. R. Commissioners, In re, 15 Neb., 682 ..... I. 131 Reed, Ex parte, 100 U. S., 13 I. 156, II. 5 Rees v. City of Watertown, 19 Wall., 107 II. 211 Rex v. Boiver, I B. &C M 585 . II. 24 v. Chichester, 2 El. & El., 209 II. 205 v. Colbeck, ii Ad. & El., 161 II. 215 v. Hanson, 4 B. & Aid., 521 II. 21$ v. Hughes, 5 B. &C, 886 II. 96 v. Kent, JJ.,V. J. P., 362 . II. 216 v. London, 8 How. State Trials, 1039 * *97 v. Middlesex JJ., I Chitty Rep., 366 ..... II. 215 v. Patterson, 4 B. & Ad. ,9 II. 96 v. R'y Co., 43 L. J. M. C., 57 II. 216 v. Water Works, I N. & P. 48 II. 203 Riddle v. Bradford, 7 S. & R., Pa., 386, 392 II. 26 Ripleyv. Gifford, n la., 367 II. 72 Robinson's Case, 131 Mass., 376, 383 II. 28 Rodman v. Harcourt, 4 B. Mon. K'y, 224, 229 . . . . II. 26 Rogers v. Buffalo, 123 N. Y., 173 . . . ... . . II. 28 v. 2 N. Y. Sup., 326 . . . . . . II. 35 v. Jacobs, ii S. W. Rep., 513 II. 19 Runkle v. United States, 122 U. S., 543 I. 72 Russell v. The Men of Devon, 2 T. R., 672 I. 172 Sampson v. Peaslee, 20 How., 571 I. 28 Santa Clara Co. v. R. R. Co., 18 Fed. Rep., 385 . . . . II. 117 Savacoolv. Boughton, 5 Wendell, N. Y., 170 II. 166 Scales v. The Ordinary, 41 Ga., 225 . . ... . . I. 175 Schooner Orono, The, i Gallison C. C., 137 . . . . . I. 74 Schuchardt v. People, 99 111., 501 II. 32 Searcyv. Grow, 15 Cal., 117 . II. 29, 97 Secordv. Foutch, 44 Mich., 89 II. 20 Sedwayv. Commissioners, 120 111., 496 . . . . . . II. 68 Sikes v. Hatfield, 13 Gray, Mass., 347 . . . . I. 174, II. 68 Smith, Ex parte, 2 Cranch, C. C., 693 . ... . .II. 4 v. Moore, 90 Ind. , 294, 306 . . ... . . II. 24 v. Moore, 90 Ind., 294 II. 29 Smythe v. Fiske, 23 Wall., 374 . . . . . I. 18 Stadler v. Detroit, 13 Mich., 346 II. 100 Starin v. Town of Genoa, 23 N. Y., 441 I. 176 TABLE OF CASES CITED. xxxiii TOL. PACK State Bankv. Hastings, 54 Wis., 78 II. 71 State v. Ashley, I Ark., 513 II. 210 v. Barbour, 53 Conn., 76 II. 23 v. Biddle, 36 Ind., 138 II. 210 v. Brewer, 59 Ala., 130 ..... II. 63 v. Buttz, 98. C., 156 ...'.... II. 96 Capens, 37 La. Ann., 747 II. 23 v. Carroll, 38 Conn., 449 ....... II. 25 v. Champlin, 2 Bailey, S. C., 22O II. 62 v. Chase, 5 Ohio St., 528 II. 208 v. Clarke, 3 Nev., 519 II. 29, 93, 94 v. De Cress, 53 Tex., 387 II. 97 v. Denny, 118 Ind., 449 ...... I. 227, II. 22 v. Douglas, 26 Wis., 428 II. 100 v. Ferguson, 31 N. J. L M 107 II. 24, 93 v. Garcsche, 65 Mo., 480 II. 206 v. Gloucester, 44 N. J. L. t 137 II. 20 v. Goss, 69 Me., 22 II. 26 v. Hauss, 43 Ind., 105 ........ II. 94 v. Hoboken, 38 N. J. L., HO II. 112 v. /. S, S., i Tyler, Vt., 178 II. 184 v. Kammcr, 42 N. J. L., 435 II. 204 v. Kennon, 7 Ohio St., 560 I. 135, II. 22 v. Kreps, 8 Ala. 951 II. 184 v. Lamberton, 37 Minn., 362 II. 204 v. Marlow, 15 Ohio St., 144 ....... II. 63 v. Martin, 46 Conn., 479 ....... II. 204 v. McKee, i Bailey, S. C., 651 II. 184 v. McMillan, 23 Neb., 385 II. 29 v. Moody, 69 N. C., 529 II. 183 State v. Moore, 90 Ind. , 294 . . II. 29 v. Murray, 28 Wis., 96 . . . . . . . .II. 28, 29 v. Newhouse, 29 La. Ann., 824 . . . . . . II. 96 v. Saline Co., 18 Neb., 428 . . . . . . I. 182 v. Salle, 41 Mo., 31 . II. 4 v. Smith, 14 Wis., 497 II. 28 v. Stanley. 66 N. C., 59 II. 2, 4. 8 v. Steele, 57 Tex., 200 II. 70 v. St. Louis, 90 Mo., 19 II. 87, 206 v. Truntpf, 50 Wis., 103 . . . . . . . II. 28, 29 Slate of Mississippi v. Johnson, 4 Wall., 475 . . . . I. 34, II. 208 Statham v. State, 41 Ga., 507 . . . . . . . II. 183 Stephens v. People, 89 111., 337 II. 19 Stewart v. Police Jury, 116 U. S., 135 II. 70 Stillv. Brennan, 41 L. J. M. C., 85 II. 215 Stock-well v : Township Board, 22 Mich., 341. . . . II. 87, 206 xxxiv TABLE OF CASES CITED. VOL. PAGE Stoker rv. Kendall, 3 How., 87 II. 165 Talbot County v. Queen Anne's County, 50 Md., 245 . . I. 175 Tarbtts Case, 13 Wall., 397 II. 213 Taylor etaL v. United States, 3 How., 197 . . . . I. 18, II. 107 Thompsons. United States, 103 U. S., 480 II. 94 Tkroop v. Langdon, 40 Mich., 673 II. 3 Tobin v. Queen, 16 C. B. N. S., 310 II. 155 Town of Gallatin v. Loucks, 21 Barbour, N. .,578 . . . I. 174 Townsendv. Mayor, etc., 77 N. Y., 542 II. 287 Tracy v. Swartout, 10 Peters, 80 I. 151, II. 161, 166 Trenton Water Power Co., In re, Spencer, N. J., 659 . . . II. 204 Trimmer v. Bomar, 20 S. C., 354 II. 19 Underwood \. Robinson, 106 Mass., 296 ...... II. 166 United States v. A very, Deady, U. S., 204 I. 65 v. B. & O. X. K. Co., 17 Wall., 322 . . I. 43, 202, 206, 228 v. Barrels of Spirits, 2 Abbott's, U. S., 305 . . I. i v. Barrows, I Abbott's, U. S. C. C., 351 . . I. 28, 156 v. Bradley, 10 Peters, 343 II. 1491 v. Cakwalader, Gilp., U. S., 563 . . . . I. 157 v. Cobb, ii Fed. Rep., 66 I. 153 v. De Groot, 5 Wall., 419 II. I5 2 v. Eckford, 6 Wall., 484 II. 152 v. Eliason, 16 Peters, 291 I. 28, 73 v. Farden, 99 U. S., IO 1-73 v. Ferreira, 13 How., 40 I. 24 v. Fisher t 109 U. S., 143 II. 7 v. Germaine, 99 U. S., 508 II. 4 v. Great Falls ATfg. Co., 112 U. S., 645 . . II. 157 v. Hartwell, 6 Wallace, 385 II. 2, 4, 5 v. Hendee, 124 U. S., 309 II. 5 v. Jones, 131 U. S., I II. 157 v. Kendall, 5 Cranch, C. C. U. S., 163 . . . I. 67 v. Langston, 118 U. S., 389 .... II. 70. 72, 285 v. Martin, 17 Fed. Rep., 150 II. 3 v. Maurice, 2 Brockenbrough, U. S., 96 . . II. 26, 149 v. Me Daniel, ^ Peters, I, 16 . . . . I. 32, II. 152 v. Mitchell, 109 U. S., 143 II. 7 v. Mouat, 124 U. S., 303 II. 4 v. Page, 137 U. S., 673 I. 72 v. Palmer, 128 U. S., 262 II. 157 v. Perkins, 116 U. S.,483 II. 35 v. Peters, 3 Dallas, 121 II. 2 v. Ringgold, 8 Peters. 150 II. 152 v. Schurz, 102 U. S., 378 .... 11.206,209 v. Seaman, 17 How., 225 II. 205 v. Shoemaker, i McLean, U. S., 114 . . H- I&L *&4 TABLE OF CASES CITED. xxxv VOL. PACK United States v. Smallwood, I Chicago Legal News, 321 , . II. 211 v. Smith, 124 U. S., 525 II. 3 v. Stowell, 2 Curtis U. S. C. C., 153 . > . II. 184, 186 v. Tingey, 5 Peters, 115 II. 149 v. Yale Todd, 13 How., 52 I. 24 v. Young, 94 U. S., 258 II. 211 Vallandigham, Ex parte, I Wall., 243 . . . . . II. 21 1 Van Orden, Ex parte, 3 Blatchford, U. S. C. C., 167 . . . II. 211 Van Orsdellv. Hazard, 3 Hill, N. Y., 243 . . . . . II. 93, 97 Vaughn v. English, 8 Cal., 39 II. 4 Viscount Canterbury v. Attorney-General, I Philliraore, 306 . . II. 155 Wallv. Trumbull, 16 Mich., 228 II. 166 Wallsall\. Fy Co., 48 L. J. M. C., 65 II. 216 Walters. Belding, 24 Vt., 658 II. 63 Wardv. County of Hartford, 1 2 Conn., 406 ..... I. 172 Wartmanv. City, 33 Pa. St., 202 I. 213 Watson v. Watson, 9 Conn., 140 II. 166 Webber v. Gay, 24 Wendell, N. Y., 485 II. 166 Wellington et al. Petitioners, 16 Pickering, Mass., 87, 105 . . II. 205 White v. Levant, 78 Me., 568 ....... II. 68 Wilckens v. Willet, i Keyes, N. Y., 521 II. 270 Wilcox v. Jackson, 13 Peters, 498 1-73, 156 Williamson v. U. S., i How., 290; 17 Peters, 144 . . . I. 72 Wilmarth v. Burt, ^ Metcalf, Mass., 257 II. 166 Wilson v. Mayor, i Denio, N. Y., 595 II. 168 Wolseyv. Chapman, 101 U. S., 755 1-73 Wortley v. Barrett, 63 N. C., 199, 201 . . . . . .II. 5 Wright v. United States, i McLean, U. S. C. C., 509, 512 . . II. 93 Wyandotte v. Drennan, 46 Mich., 478 II. 69 BOOK I. THE SEPARATION OF POWERS. CHAPTER I. ADMINISTRATION. /. Administration as a function of government. THE word administration is used in several senses. Thus we speak of the administration of an estate, the administration of a business, and of the administration of government. 1 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 the activity of both the legislature and the courts. 2 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 1 Stengel, Deutsches Ver-waltungsrecht, i. " Kirchenheim, Einfiihrung in das Verwaltungsrecht, 3. 3 THE SEPARATION OF POWERS. the government. The government administers when 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 the 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 such 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. 1 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. 2 The duties performed by the government in furthering the wel- fare of its citizens may be classed together as internal 1 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, '. 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. 1 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. 1 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. 77. 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 1 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. '/., 5 ; Stengel, Deut- sches Ver-waltungsrecht, 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 the five branches of administration which have been distinguished : and f urther 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- trative 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 l 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 1 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. 1 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, vie., 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, admin strati ve law is concerned not alone with the relations of the administrative authorities but 1 E. g. see Holland, Elements of Jurisprudence, 4th Edition, 1888, 122, 303, 308-311 ; Lightwood, The Nature of Positive Laiv, 402 ; The Juridical Review , II., No. 5, 13 ; Stimson, American Statute Law, v. 8 THE SEPARATION OF POWERS. V 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. 1 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 1 Boeuf, Droit Administralif, iv. ADM1NISTRA TIVE LA IV. 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 cany 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 ic 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. 1 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 1 Cf. Kirchenheim, op. eit. t 21 ; Adams, Public Debts, 369. ADMINISTRA TIVE LA W. i r act in the doing of these things in accordance with its own unlimited discretion. 1 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. 2 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 fa- 1 Kirchenheim, op. at., 21. 3 Cf. Sarwey, Allgerneines Verwaltungsrecht, 37. 12 THE SEPARATION OF POWERS. cuSy 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, 1 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. 2 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. 3 In some of the cases decided by the courts of this country the necessity of the separate study and treat* 1 See Merriwether v. Garrett, 102 U. S.,472 ; and Pierce v. Boston, 3 Mete. Mass., 520 ; cf. Cooley, Taxation 2d. Ed. 17, 18. t( * Butler v. Penna., 18 How. U. S., 402 ; infra, II., p. 3. 3 See Dartmouth College v. Woodward, 4 Wheaton, 636. UNIVERSITY OF LA W. 13 ment of the administrative law as a part of the public law is made particularly apparent. For the result of 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, has been the application to public relations of the princi- ples 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. 1 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 y. Wilson, 7 Cranch, 164 ; Cooley, Taxation, 67 ; Burgess, Political Science, etc., I., 238. i 4 THE SEPARATION OF POWERS. that the idea of contract has been applied unjustifiably in the relations of the public law. 1 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 m^ny 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 1 For the distinction between private and public law, see Benson v. Mayor,, 10 Harbour, 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. 1 This was the rule of the Roman law. Ulpian says : " Publicum jus est quod ad statum rei Romance spectat, privatum quod ad singulorum 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. 3 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 1 Cf. Kirchenheim, op. cit. t 22. * fusts., I., sec. 4. 3 See supra, p. 8. 1 6 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 own government except in so far as it has been adopted into the administrative law of the state. On this account the German jurist Zorn treats international law as external public law. 1 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. 2 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 1 Das Reichsstaatsrecht, II., 419; cf. Gumplowicz, Das Oesterreichische Slaatsrecht, 348. * Cf. Boeuf, op. cit., iv. ; Light wood, The Nature of Positive Law, 396-402. ADMINISTRATIVE LAW. 17 .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. 1 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. 8 This comes out particularly clearly in the distinction which is so often made between crimes and police offences. 3 1 Sec Infra, II., p. 106. 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. ,/ 3 See Wharton, Criminal Law, gih 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 Abbott's U. S., 305, 314 ; Cooley, Taxation, ad 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. 1 Experience proved, however, that certain expressions of it should be made by the state, L 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 des JLoiSj he first distinguished three great powers of govern- ment, via., 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. 1 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. 2 Modern political science has, however, generally dis- carded this theory 3 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 4 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 1 Esprit des Lois, book xi. , chap. vi. 2 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 ft du citoycn t art. 16. 3 Kirchenheim, op. cit., I. 4 Brown v. Turner, 70 N. C., 93, 102. THEORY OF THE SEPARATION OF POWERS. 21 be forgotten that the three co-ordinate parts constitute 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." 1 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- 1 Cf. Sarwey, op. cit., 26. 22 THE SEPARA TION OF PO WERS. lation and over the policy of the government, in others i almost none ; in some the legislative authority has a large power over the formation of the executive au- \ thority, in others almost none. 1 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, i. 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 \yhich 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 generaHiorms 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 itorms to concrete cases ; and finally the action of the judges or the courts, commonly called 1 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 Christiancy frankly admits * that the various powers which may be differentiated in accordance with the theoiy 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 2 ; 1 People v. Hurlburt, 24 Mich., 44, 63. 5 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. 1 \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. 2 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. 3 On the other hand, the courts of other commonwealths have regarded this action as perfectly proper. 4 1 Gordon v. U. S., 117 U. S., 697. * Cooley, Constitutional Limitations, 6th Ed., 128, 133. 3 People v. Bennet, 29 Mich., 451 ; People v. Nevada, 6 Cal., 143. * Kay-er 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 Toddin note to U. S. v. Ferreira, 13 How., 40, 52 ; Gordon v. U. S., 2 Wallace, 561 ; Miller on The Constitution, VII. CHAPTEK 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. 1 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 th#&- 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, 1 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. i. 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. 1 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. 2 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 personnel. 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. 3 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 1 Sarwey, Allegemeines Verwaltungsrecht, 26. a Cf. ibid. 8 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. 1 The veto power is one of the most noticeable legislative functions discharged by the ex- ecutive. 2 It is recognized almost everywhere in the United States as belonging to the executive, at any rate in a limited form. 3 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. 4 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 1 Sarwey, op. cit., 21. 9 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. 3 United vStates Const., art. i., section 7, par. 2 ; Stimson, American Statute Law, section 305. 4 Cf. 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. 1 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. 2 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, 1 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 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. 1 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. 2 1 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 the 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. 1 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. ft/., 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. 1 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. 3 The same general principle is true in all states. 4 1 U. S. v. McDaniel, 7 Peters, i., 14. 8 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. 3 Cf. W. A. Dunning on " The Constitution in Civil War," in the Pol. Sci. Qu., III., 454. Cf. Sarwey, op. fit., 37. EXECUTIVE AND OTHER AUTHORITIES. 33 It is seen thus that while the main duty of the execu- tive is to execute the will of the legislature as ex- pressed in statute, still in all countries there is a realm of action in which the executive authority possesses large discretion, and that it looks for its authority not to the legislature but to the constitution. 2. TJie control of the legislature. Further, besides regulating the action of the administration, the legisla- ture exercises in all countries a direct control over the administration to keep it within the law. The extent of such control varies with the relation in tenure of the executive to the legislature. If, as in England and France, the acting executive is dependent in tenure upon the legislature, the extent of this control will de- pend entirely upon the attitude which the legislature takes. If, as in France, the legislature makes an im- moderate use of its powers of control, the executive authority becomes completely dependent in action upon the legislature ; if, as in England, the legislature imposes bounds upon its control over the executive, beyond which it will not go, the executive, though in theory completely dependent in action upon the legis- lature, still in practice will be largely independent of it. The existence of the power of control will have simply the effect of deterring the administration from illegal action. In the United States and Germany the executive is not dependent upon the legislature in tenure ; in Germany, not at all ; in the United States, only in such a way that it may be removed in case of absolute corruption and illegal action. The re- sult is that the control of the legislature over the actions of the administration in these countries is very slight. 1 3 ' 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- J> 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. 1 1 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, 1 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 veiy 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 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 3. Contractual 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 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, 1 See Code Penal, art. 137. fl 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. Arrtt du Conseil d'tat, 5 Jan., i%$$, affaire Boule ; cited in Dncrocq, Traite" du JDroit, Administratif, I., section 64 ; cf. Aucoc, Confer- cnces sur F administration, etc., 441, el seq. "* Infra, p. 74. 4 See infra* II. p. 149. 36 THE SEPARA TION OF fO WERS. precepts, and warrants. By the 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. 1 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. 2 1 Infra, II., p. 200. 8 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 is 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. TERRITORIAL DISTRIBUTION OF ADMINISTRATIVE 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 ecial 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 2 ; and that the individual has no right of appeal from the decision of a head of a department to the President 8 ; and that where an appeal lies it can go no further than to the head of a department. 4 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. 5 2. Remedies 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 1 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, 101 U. S., 755. 8 4 Opinions of the Attorneys-General, 515; but see the Guilford Miller case. Supra, p. 69. 3 9 Opinions, 462. * 10 Ibid., 526. s 15 Ibid., 94, 100. This opinion was given in 1876, 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. 1 Nor can the courts review his acts where the attempt will bring them in direct conflict with him. 2 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. 3 But even in these cases where the action of the President is regarded as political in its nature the courts will refuse to interfere. 4 //. The commonwealth governor. 1. The governor a political officer. The originally political character of the governor 5 has tended to be- come mdre 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. 6 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 1 Durand v. Hollis, 4 Blatchford, 451, which also claims irresponsibility for his subordinates when executing orders issued in the discretion of the President. 2 Infra, II., p. 208 ; Miss. v. Johnson, 4 Wall, 475. 3 The Schooner Orono, I. Gallison C. C., 137 ; Ex parte Merryman, 9 Am- erican Law Register, 524. 4 Supra, p. 34. 6 Const., art. ii., sec. 2, par. i. * Supra, p. 59- T Stimson, American Statute Law, p. 41, sec. 202. ORGANIZATION OF EXECUTIVE. 75 by the English 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. 1 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. 2 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. 4 The governor also has the power to adjourn the legislature in case the two houses disagree as to the time of adjournment 5 ,* the power to call extra sessions of the legislature 6 ; 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 1 Alabama, Kentucky, Maryland, and Missouri. Stimson, op. cit. sec. 297. 9 Stimson, op. cit. sec. 298. * Ibid. * Ibid., sec. 278. 4 Ibid., sec. 305, C. Ibid., sec. 277. 76 CENTRAL ADMINISTRATION. to recommend such measures as he deems proper. 1 In the third place the governor has very generally the power to grant pardons, reprieves, and commutations of sentences and may remit fines and forfeitures. 2 In some instances treason and conviction on impeachment are excepted from his pardoning power, 3 while 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 " 4 (Pennsylvania). Finally the governor has in some cases the power to proclaim in accordance with the law the time of general elections. i i OM.I i'in J r"^i ( IV., 25 ; cf. Howard, I., 406. HISTORY OF LOCAL ADMINISTRATION, 167 courts. He was appointed also by the governor. 1 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. 2 In 1691 an officer called a supervisor was to be elected in each town. His name comes f rom^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 u supervise and examine the publick and necessary charge of each county." 3 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 1 See Brod head. History of New York, I., 63, and authorities cited. 3 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. 3 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. 168 LOCAL ADMINISTRATION. fiscal administration of the county. 1 The justices still retained important functions in other administrative branches, such as highways. 2 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. 3 Sheriffs were also elected by the people in Pennsylvania from an early time. 4 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 B : "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. 6 New York is the parent of the supervisor system. On the other hand Penn- 1 See New York Law of November 1, 1722, where it says : " Whereas by that means," *. 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. Cf. Howard, I., 362. Ibid., I., 382. Ibid., I., 384, and authorities cited. Ibid., I., 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 early 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 very 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. 1 In the middle colonies it seems to be a later creation. 2 The town originated either in legislation 3 or in an execu- tive act of the early colonial government, 4 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. 5 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. 1 We find it in this section as early as 1630, 9 Gray, Mass., 511. 2 E. g., Pennsylvania, sttpra, p. 166. 3 As, e. g., in New England, Howard, I., 56. 4 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. cit., I., 388, and authorities cited. 8 Wood, History of Long Island, 19 et seq. i yo 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. 1 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. 2 The existence of such a number of officers was necessary 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. 9 Ibid., 88, 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. 1 In Pennsylvania we find iii the town after its establishment, two overseers of tEe poor appointed by the justices and two supervisor's 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. 2 ///. Corporate capacity of the localities. 1. Original absence of corporate capacity. When the elective principle was made the rule for the filling of offices in the local administrative system the whole local organization became quite popular in character and at the same time quite independent of the cen- tral administration, since all possible administrative sanction for instructions issued to the officers in the localities from the central administrative authorities was destroyed. But for a considerable time after this decentralizing of the administrative system the various areas for the purposes of administration, in which these independent officers acted, were, no more than the cor- 1 See N. Y. I,., June 19, 1703. 2 Howard, I., 385. 1 72 LOCAL ADMINISTRATION. responding English areas, 1 regarded as juristic persons. 2 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. 8 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. 4 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, 6 seems to have influenced the court in its decision of this case. 7 In 1801 the legislature expressly made the county a capable grantee of lands 8 and finally the 1 Russell v. The Men of Devon, 2 T. R., 672, A. D. 1788. 9 Ward v. Co. of Hartford, 12 Conn., 406. 8 See for New York, which may be taken as typical, the cases of Jackson v. Hartwell, 8 Johnson, 422 ; Jackson v. Cory, Ibid., 385 ; Hornbeck v. West- brook, 9 Johnson, 73 ; and Jackson v. Schoonmaker, 2 Johnson, 230. 4 See Bloomfield v. Charter Oak Bank, 121 U. S., 121, 129 ; Hill v. Boston, 122 Mass., 344, 349. 5 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. T See Denton v. Jackson, 2 Johnson, Ch. 320, 355. 8 I Kent & Radcliffs 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 with certain specified powers, to wit, the power to hold property and to sue and be sued. 1 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 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 Town of Monroe* The several towns of the state, says Judge Denio, are cor- porations for special and very limited purposes, or to speak more 1 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." 2 Cf. Dillon, Municipal Corporations, 4th edition, I., chapter ii. ; Levy Court v. Coroner, 2 Wallace, 501, 507. 8 ii N. Y., 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. 1 The position of the county, which is quite similar to that of the town is well stated in the case of Hamilton Co. v. MigJiels. 2 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 1 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. 3 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 Annds Co., 1 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. 8 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. 3 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 1 50 Md., 245, 259. 9 See also Scales, v. The Ordinary, 41 Ga., 225, 227, 229 ; cf. Dillon, Municipal Corporations, 4th edition, I., chap. ii. 3 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 1 and practically that from it there can be derived no principle of respondeat 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 Slices 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 1 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. (I CHAPTER II. BUBAL LOCAL ADMINISTRATION IN THE UNITED STATES AT THE PBE8ENT 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., 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. 1 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 1 See Stimson, op, cit.. p. 47, sec. 210 B. i8o LOCAL ADMINISTRATION. 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 1 ; 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. 51 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. 8 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 4 ; 1 Howard, I., 439, 453, 465. * Howard, I., 442. * Ibid. t I., 439. 4 Cf. Howard, I., 446. RURAL LOCAL ADMINISTRATION. 181 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. 1 But the characteristic and most important powers of the county authority are those relating to the coiint^jEinances. 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 2 ; in one commonwealth at least the administration of affairs in the county is a good deal 1 See Morehouse's Supervisors' Manual, 115, 347, 352, 355, 363, 9 Supra, p. 79. i8 2 LOCAL ADMINISTRATION. concentrated in the 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 OE ap- pointed by the county authority. 1 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. 2 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. 3 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 1 Compiled Statutes of Nebraska, 1889, p. 369 ; cf. Howard, I., 445. 2 The State v. Saline Co., 18 Neb., 428. 8 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. 1 This power seems to have been taken away by the laws of 1892. 2 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, 3 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, 4 but does in a very rudi- mentary form in Minnesota and the Dakotas where it may enact by-laws and elect officers. 5 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. 6 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. 1 In some cases, however, such officer is not a member of the county board as in the pure New York 1 Cf. Morehouse, op. '/., 303, 344, citing L. 1869, c. 855 ; L. 1886, c. 355. 9 N. Y. L. 1892, c. 686. Schedule of laws repealed. 3 See N. Y. L., 1892, c. 569, Article II. 4 Howard, I., 157. G Ibid., 157. r> Ibid., 158. "' For New York see L. 1892, c. 569, sec. 80. 184 LOCAL ADMINISTRATION. plan. This is the case with the town trustee who is elected by the people of the town in Indiana, Missouri r and Kansas, and with the town chairman who is elected in a similar way in Wisconsin. 1 Generally the actions of such officer are controlled by a town board which in other cases is the only real authority. 2 In some cases the supervisor or similar officer performs other duties, such as those of the assessor, 3 or those oi; the overseer of the poor. 4 In Michigan he is also census r enumerator and registrar of births and deaths. 5 The town board to which reference has been made is vari-f 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. 6 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. 7 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. 8 In some cases this town board may levy taxes as in Michigan and Ohio. 9 There are quite a number of other town officers 1 Howard, I., 168, and authorities cited. 9 The town board is the real authority in Ohio, Pennsylvania, Iowa, Minne- sota, and the Dakotas. Ibid., 168-169. 3 As in Michigan, Ibid., 170. 4 As in Nebraska and Michigan, Ibid., 170; Cocker, Civil Government in Michigan, 26. 5 Cocker, op. cit., 26. 6 Howard, I., 172. 1 1bid., 172. 8 See New York Laws of 1840, c. 305 ; 1860, c. 58 ; 1863, c. 172 ; 1866, c. 832 ; 1875, c. 180, now incorporated in L. 1892, c. 569, sees. 172 et seq. 9 Howard, I., 173. RURAL LOCAL ADMINISTRATION. 185 who attend each to some special branch 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. 1 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. 2 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, 3 if not, then at a town election, as in Pennsyl- vania. 4 //. 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, tut 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 common wealth. 5 In Vermont also, all real local power is centred in the 1 Cf, Lorillard v. Town of Monroe, n N. Y., 392. * Howard, I., 235; Cocker, op. cit., 92. 4 Sutra, p. 171. * See statutes cited above. 5 Public Statutes, 39 and 74. 186 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 l ; 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 2 ; 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. 3 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 1 Revised Laws, 732, 733. 2 Ibid., 517, 573. 3 /&/., 124, 125. RURAL LOCAL ADMINISTRATION. 187 legislature, who are to meet biennially at the 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. 1 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. 2 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 1 General Statutes 1888, 429-32, 434, 740, 748. 2 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. What 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 1 ; 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. 2 1 See Bloomfield v. Charter Oak Bank, 121 U. S., 121 ; tf. for duties and powers of towns, Dillon, op. cit., I., 47, note. 9 Howard, op. cit., 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. 1 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. 2 In New England generally the town is the school district, though there are separate officers to attend to the school administration. 3 ///. 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, 4 is centred in the 1 Ibid. ; see also Public Statutes 1882, pp. 109-119. * Howard, I., 227. * Ibid., 235. 4 As, e. g.^ in Virginia, Kentucky, Texas, and Tennessee. Howard, op. cit.^ I., 237. i 9 o LOCAL ADMINISTRATION. county and its officers. In some of the common- wealths, however, even school matters are attended to by county officers. 1 In Alabama the district for the purpose of school administration is called the town- ship. 2 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. 3 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. 4 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. 5 It may be further said of the southern system that the Pennsylvania or commissioner form is the one gener- ally adopted. 6 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 1 E. g. , South and North Carolina and Georgia, Ibid. 8 Ibid., citing Code of Alabama, 1886, I., 221, 222. 3 Howard, I., 237. 4 Ibid., 468. 6 Ibid., 469, 470, citing Code of North Carolina, 1883, pp. 287, 312. Howard, I.. 468. RURAL LOCAL ADMINISTRATION. 19 1 elected in one of the magisterial districts into whicL 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. 1 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. 2 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. 3 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 1 Ibid., 231. * Ibid., 465-7, citing Code of Virginia, 1887. * Howard, I., 466, 467. i 9 2 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. 1 In some of the southern commonwealths there is an area lower than the county which is sometimes called the town. 2 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. MUNICIPAL ORGANIZATION IN THE UNITED STATES. /. History of the English municipality to the seventeenth and eighteenth centuries. 1 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 burgi and the court leet. The firma 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 1 See Gneist, Self government, etc., 580-592. 3 193 1 94 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 firma burgi, 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. MUNICIPAL ORGANIZATION. 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 ADMINISTRATION. 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 with public policy and valid. 1 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. 2 The re- sult was that the municipal organization was so formed 1 See the case of corporations decided in the time of Elizabeth, Dillon, op. at., I., 18 ; and Ireland v. Free Borough, 12, Co., 120. 2 See Dillon, op. cit., I., 18 ; Allinson and Penrose, Philadelphia, 10 ; Rex v. London, 8 How. St. Tr., 1039, I 34- 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. 1 1 Gneist, Self government, etc., 595. MUNICIPAL ORGANIZATION. 199 Such was the 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, 1 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 A merican 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. 2 New York and Philadelphia have, from the beginning 1 On account of the fact that in most cases a special commission of the peace was issued to the cities. 9 Johns Hopkins University Studies in Historical and Political Science, V. , 79. *oo LOCAL ADMINISTRATION. 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. 1 The city authority was the town council, composed of the mayor, recorder, aldermen, and assistants or councilmen. In this body t 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, i. 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. 2 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. 3 1 For New York, see the Dongan 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. 2 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. 3 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 attribute of sovereignty. 1 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 burgi 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. 2 In Philadelphia the council was, as was so common in England at the time, elected by co-optation. 3 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. 4 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., 181 ; J. H. U. S., V., 22. 2 See Kent's Charter, note 35. 3 See Allinson and Penrose, op. cit., 9. 4 So in Philadelphia. See Allinson and Penrose, loc. cit. 202 LOCAL ADMINISTRATION. Such 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 position 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. 1 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. 2 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 1 See Darlington v. New York, 31 N. Y., 164 ; U. S. v. B. & O. R. R. Co., 17 Wallace, 322. 2 Dillon, op. cit., I., no et sey., 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. 1 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, 2 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. 8 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 quasi 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 4 ; in others it is appointed by the legislature, as in Baltimore. 5 Finally municipal officers are often made use of for the purposes of general com- .- \lbid., 70. 5 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. 8 Cf. Bryce, American Commonwealth, I., 599. 4 N. Y. L. 1882, c. 410, sec. 1022; N. Y. L. 1888, ch. 5, title xvii., sec. i. 5 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. 1 Further the courts of several of the common- wealths have held that the preservation of the peace is not a municipal function. 2 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 1 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, 329. * People v. Draper, 15 N. Y., 532 ; Baltimore v. Board of Police, 15. Md., 376. ; People v. Mahaney, 13 Mich., 481. ; cf. Dillon, op. cit., I., 102. MUNICIPAL ORGANIZATION. 205 municipalities in which they act, but the judges and their subordinate officers are not regarded as municipal officers. 1 An exception to this rule may be found in the case of the local tribunals called by different names, such as the mayor's court, the recorder's court, and the like. 2 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 pot 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 1 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. 3 Dillon, op. cit., I., 492. 206 LOCAL ADMINISTRATION. 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. 1 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 2 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 1 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 exist- 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. 1 This separation of the function of deliberation from that of execution was made in Philadelphia in 1789 2 and in New York in 1830. 3 The first charter of Boston, granted in 1822, however, permitted the mayor to be a member of the council. 4 Since 1830 most city charters have provided for this separation of the deliberative and executive functions. 5 ///. The present organization of the American municipality. 1. The mayor and the executive departments. When the mayor was first excluded from the council he was to be elected by the council. 6 In Philadelphia the mayor was elected by the council as late as 1839, 7 but in Boston by the very first charter the mayor was elected by the people of the city. 8 This seems to be the rule at the present time. 9 His term of office 1 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. , 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. 2 J. H. U. S., V., 34. 3 L. 1830, c. 122, sec. 15. 4 'J. H. U. S., V., 96. 5 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 tc be a member of the council." 6 E. g. , see N. Y. Const, of 1821, art. 4, sec. 10. ' J. H. U. S., V., 34- 8 Ibid., 96. 9 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. cil., I., 69 ; Bryce, op. cit., I., 594. 208 LOCAL ADMINISTRATION. varies from one year in Boston to four years in Phila- delphia. 1 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 with 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 ^rom 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," 2 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- 1 J. H. U. S., V., 117 ; Pa. Law, June 1st, 1885, art. i, sec. I. 3 Bryce, op. cit., I., 595. MUNICIPAL ORGANIZATION. 209 ruents which were to be organized, and whose heads were to be appointed by the common council. 1 The same power was possessed by the council of Phila- delphia, and that of Boston. 2 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. 3 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. 4 In certain cases it would seem that the council still possesses the organizing power. 5 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 1 See also the Corporation Ordinances, revised 1845. 2 J. H. U. S., V., 36 and 97. 8 See, e. g., N. Y. L., 1849, c. 187, sec. 20. 4 Cf. Kearney v. Andrews, 2 Stockton, N. J., 70 ; White v. Tallman, 2 Dutch, N. J. 67. 5 Thus in Boston, to a certain extent, J. H. U. S., V., 116 el seq.; St. Louis, Ibid., 154 ; New Orleans, Ibid., VII., 173. In New York the board of aldermen 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. '/., I., 290, and cases cited. 14 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, 1 of St. Louis, 2 and of New Orleans. 3 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. 4 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. 5 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 1 J. H. U. S., V., \\betseq. 8 Ibid., 1 06, 171. 3 Ibid., VII., 173. 4 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. 5 This is especially true of Boston, St. Louis, and New Orleans, J. H. U. S., V., 118 ft seq. ; 170 et seq. : VTT., 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 power of appointing the heads of executive departments, the general rule is that his appointments, to be valid, must receive the approval of the whole city council or one of 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. 1 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 2 ; 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. 3 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. 4 In Brooklyn the heads of departments are removed for cause by the courts on the application of the mayor. 5 It should be noticed, however, that in many cases 1 N. Y. L. 1884, c. 43 ; N. Y. L. 1888, c. 583 ; Allinson and Penrose, op. cit., 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. t 331. 4 N. Y. L. 1882, c. 410, sec. 108. 5 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. 1 The charter of Brooklyn, however, recognizes that the coin- cidence of the terms of the heads of executive depart- ments with that of the mayor is an important means of securing administrative harmony and efficiency. 2 . 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. 3 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 1 E. g. see St. Louis, Boston, J. H. U. S. f V.. 121-3, 156 ; New York, N. Y. L. 1882, c. 410, sees. 34-45. * N. Y. L. 1888, c. 583 ; ff. Allinson and Penrose, op. '/., 289. 3 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. 1 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 2. The municipal council. The same lack of con- fidence in the council which has led to its disintegra- 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. 3 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, 4 or has granted the ordinance power to the heads of the various executive departments of the city adminis- tration. 5 Further the attempt has been made in some of the 1 So in Boston, J. H. U. S. t V., 117 ; St. Louis, Ibid., 157 ; Philadelphia, Pa., Law, June I, 1885 ; cf. Bryce, op. Y., I., 595. 2 See, e. g., Philadelphia, Pa., Law, June i, 1885, art. i. 3 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. 4 E. g. see the case of New York City L. 1882, c. 410, sees. 86, 310, 330, 393, 440 ft passim. 5 E. g. take the cases of Boston, J. H. U. S., V., 121, 122, and St. Louis, Ibid., 167. 2i 4 LOCAL ADMINISTRATION. larger cities of the commonwealth 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 not possess the taxing power for local mat- ters, the devolution of the expenses of so many matters of central concern 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. 1 That is, the legislature designates the kind of taxes which 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. 2 The municipal authority which originally received the 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. 3 In general, however, it is the council which 1 Dillon, op. cit. t I. ,69. 8 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 be incurred. Sometimes this tendency is carried so far as 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. 1 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. 2 An extreme example of this tendency to fix 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. 3 In Philadelphia, however the councils seem to have quite a large power over the appropriations, 4 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. 1 Cf. Pres. Seth Low in his chapter on " Municipal Government " in Bryce, American Commonwealth, I., 630. 2 People ex rcl. Wright v. Common Council of Buffalo, 16 Abbott's New Cases affirmed in 38 Hun N. Y., 637. 9 See L. of 1882, c. 410, sec. 52 et passim. 4 See an ordinance of the councils of date Dec. 30, 1886, cited in Allinson and Penrose, op. di., 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 1 ; in others, of two chambers, as e. g. in Boston, Baltimore, St. Louis, and Philadel- phia. 2 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. 8 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. 4 la 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. 5 In one case we find minority representation. This is Chicago. 6 The term of office of the members of the council varies ! N. Y. L. 1882, c. 410, sec. 29; Allinson and Penrose, op. tit., 331. 9 J. H. U. S., V., 118, 157 ; Allinson and Penrose, op. cil., 331. J. H.U. S.,V.,i 57 . 4 N. Y. L. 1888, c. 583, title ii., 3. J. H. U. S..V., i$ ft set. "Allinson and Penrose, op. eit., 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, 1 to four years as in St. Louis. 2 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. 3 Generally the council is totally renewed at one time. But in some cases, as e. g. St. Louis, 4 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. 5 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. 6 This is so in the commonwealths of New York and Massachusetts and the city of Philadelphia. 7 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. Such laws really provide an unlimited lodger suffrage with, how- ever, a very short term of residence within the city, 1 L. 1882, c. 410, sec. 29. J. H. U. S..V., 157. 8 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. 8 E. g. see the early New York charters. See the proposal made by Pres. Eliot in The 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, vi&. 9 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. 1 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. 2 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 1 See Allinson and Penrose, op. cit., 297 ; Bryce, op. cit., II., 360, note 2. 2 Thus in Baltimore the members of the council must be assessed for at least 8300. 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. 1 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, 2 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. 1 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 aud 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 per cent, of the assessed value of taxable property in the village, may be incurred for the purpose of supplying the village with water. 1 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 1 N. Y. L. 1875, c. 181. 222 LOCAL ADMINISTRATION. which is taken out of the jurisdiction of the town high- way commissioners. A later law 1 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 in 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. 1 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. 1 Cf. Dillon, fl/>. r//., T., 145. 224 LOCAL ADMINISTRATION. 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 utferests of the locality directly concerned. 1 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, *. 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. 1 The force of such provisions is often, however, destroyed by the interpretation put upon them by the courts. Thus in New York the court of appeals decided in the case of People v. Draper * 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. 3 The same court held later 4 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 Mayw? 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- 1 E. g. see constitution of New York, art. 10, sec. 2. Cf. Dillon, op. fit., I., ioo. 2 15 N. Y., 532. 3 See supra, p. 204 for other decisions of a similar tenor. 4 People v. Pinckney, 32 N. Y., 377, and Metropolitan Board of Health v. Heister, 37 N. Y., 661. 62 N. Y., 567. is 226 LOCAL ADMINISTRATION ing to a work which has been held by the highest court of the commonwealth to be a purely munici- pal undertaking, J 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. 2 On this commission provision was made 3 for only one representative of the city which was pajing 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 1 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. 55N. 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, 1 or itself to appoint park commissioners and force the city to provide a park. 2 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 legislative interference. 3 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 1 People v. Hurlburt, 24 Mich., 44 ; Cf. State v. Denny, ITS 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 local 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 shown 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 officers 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. 1 //. Administrative independence of the local authorities. 1. Absence of central administrative 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. 2 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 1 Cf. Lorillard v. Town of Monroe, n N. Y., 392 ; United States v. the Baltimore and Ohio R. R. Co., 17 Wallace, 322. 9 Infra, II., p. 7. GENERAL CHARACTERISTICS. 229 elected shall act free from almost all central adminis- trative control. Seldom do we iind that any a$minis- 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. 1 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. 2 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. 3 Such a central administra- 1 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 ADMINISTRATION. tive control in educational matters seeuis 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. 1 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. 2 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. 3 But as a general thing even now the various municipal officers are comparatively independent of the mayor, ' See Cooley on J*axation t 26. Ed., 421-423, 747-749. 2 Supra, pp. 178-192. 3 Supra, p. 210. r\ v JU <*y GENERAL CHARACTERISTICS. 231 though they are somewhat more dependent upon the mayor and the city council acting together. The gen- \ 1 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. 1 ///. 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 per diem allowances, 1 Infra, II., pp. So, 88. 232 LOCAL ADMINISTRATION. 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, 1 but the obligation to serve seems to have been omitted in the revision of the law made in 1890.* 1 See New York Revised Statutes, Part I., Chap. XL, Title III., art. 2d., sec- dons 25 and 26 ; cf. State v. Ferguson, 31 N. J . L., 107. 8 L. 1890, c. 569. CHAPTER V. LOCAL ADMINISTRATION IN ENGLAND. , /. History from the seventeenth century to the present time. 1. Defects of ike old system. The history of the English system of local administration up to the begin- ning of the seventeenth century has already been traced. 1 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 sic'e 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 1 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- plorable condition of the municipal administration has already been alluded to. 1 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 with the needs of an advancing industrial society. But 1 Supra, p. 198. 236 LOCAL ADMINISTRATION the necessary reforms could only be realized by the establishment of a uniform system of administra- tion. This implied a central 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. 1 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, 1 *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 Engliscke Verivalttingsrecht, 1884, p. 389 LOCAL ADMINISTRATION IN ENGLAND. 237 of all, social history." 1 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 1 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 have 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. 1 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. 2 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. 3 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 1 Cf. Wigram, The Justices' Note-Rook, Chap. I. ; Anson, op. '/., II., 237. 8 Stone, Practice of Justices of the Peace at Petty and Special Sessions, gth edition, Part I. 1 Smith, Practice at Quarter Sessions 1882, p. 4 ; infra, II., p. 214. 2 4 o 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. 1 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. 2 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. 1 For further explanation see infra, II., p. 107. 8 Wigram, op. '/., 6 ; Probyn, Local Government and Taxation in the United Kingdom, 31, 32. LOCAL ADMINISTRATION IN 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. 1 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. 2 They still revise and allow the list of persons liable to serve on the juries. 3 They grant licences for the sale of liquor. 4 Finally the Local-Government Act of 1888 gives the justices a large power over the administration of the police force. 5 II. The county. 1. Organization of ike 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 6 there shall be a county council elected, speaking broadly, by the citizens of the county who are occupiers of land 1 Stone, op. cit. Part II.; cf. infra, II., p. 109. a See 25 and 26 Viet., c. 61, and 27 and 28 Viet., c. 101. 3 9 Geo. IV., c. 50. 4 9 Geo. IV., c. 61 ; 35 and 36 Viet., c. 94. * Infra, p. 243, ' Except the new county of London. 242 LOCAL ADMINISTRATION. of a clear yearly value of ten pounds and upwards, or are occupiers of buildings of any value. 1 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. 2 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. 3 The term of office is three years and all the county councillors retire from office at the same time. 4 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. 5 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 1 51 Viet., c. 10 ; Herbert and Jenkin, The Councillor's Handbook, 2. 8 51 and 52 Viet., c. 41, sec. I. * Property of an annual value of from ^500 to ^"1,000, or rates of from ^15 to ,30. 4 51 and 52 Viet., c. 41, sec. 2; Stephen and Miller, The County Council Compendium, 24, with authorities. 5 51 and 52 Viet., c. 41, sec. 75, and 45 a:.d 46 Viet., c. 50, sec. 14. LOCAL ADMINISTRATION IN ENGLAND. 243 boroughs, the chairman will be selected from among the aldermen. 1 His term of office is one year and he is ex-officio justice of the peace. 2 The chairman is the only member of the county council who may receive any remuneration. 3 His remuneration is to be fixed by the county council. Service as member of the county council does not seem to be obligatory. 4 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 1 51 and 52 Viet., c, 41, sec. 75 ; 45 and 46 Viet., c. 50, sec. 15. 8 51 and 52 Viet., c. 41, sec. 2. 3 51 and 52 Viet., c. 41, sec. 75 ; 45 and 46 Viet., c. 50, sec. 15. 4 51 and 52 Viet., 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 fhat, 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. 1 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- f ail's of the county as it sees fit, with the power to ' For a list of these matters see Herbert and Jenkin, op. cit., 41 ei 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, 1 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. 2 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. 1 Formed in 1871 out of the union of the poor-law with the public health board. 9 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 5 Miller, The County Council Compendium, 54. For the county generally see Anson, op. '/., II., 235-238. 246 LOCAL ADMINISTRATION. III. Rural subdivisions of counties. 1. Local chaos. Below the 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. 1 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. 2 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- 1 Chalmers, Local Government, 33. 9 One hundred and eighty one out of about six hundred and fifty unions do so. Ibid., 51. LOCAL ADMINISTRA TION IN ENGLAND. 247 ized as the rural sanitary authority for such rural sanitary district. 1 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.' 1 Ibid., 101. 8 Wright's Memorandum, No. I, p. 33, cited in Chalmers, Local Government, 21. 248 LOCAL ADMINISTRATION. 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 sin^ply 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. The 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. 2 The ex-officio 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 1 Probyn, Local Government and Taxation in the United Kingdom, 127. * Gneist, Self government, etc., 727. * Chalmers, op. fit., 55. LOCAL ADMINISTRATION IN ENGLAND. 249 by its importance. Such elected members are elected by the 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. 1 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. 2 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 authority for that part of the union which forms a rural sanitary district. They also in many cases act as the rural highway authority. 3 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 1 Gneist, Self government, etc., 723. * Ibid., 730; Chalmers, op. cit., 54. 3 Chalmers, op. fit., 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. 1 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. 2 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 1 Gneist, Self government, etc., 731 et seq. 2 Local Government Act of 1888. LOCAL ADMINISTRATION IN ENGLAND. 251 of local government. As a municipal corporation it also has 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. 1 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 50 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. 2 In each parish there are further two overseers of the poor who are appointed by the justices of the peace. 3 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. 4 The main duty of the overseers of the poor is no longer the administration of 1 Chalmers, op. cit., 42 and 43 ; Herbert and Jenkin, The Councillor's Hand- book, 5. * Chalmers, op. cit., 42. 3 Ibid., 43. 4 Ibid. 252 LOCAL ADMINISTRATION. 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. 1 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. 2 Finally the rural parishes are all school districts, 3 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. 4 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. 1 Ibid., 43 and 44. 2 Since in the rural districts the parish more frequently puts into operation the permissive acts to which allusion has been made. 3 Chalmers, op. cit., 126. * Ibid., 127. LOCAL ADMINISTRATION IN ENGLAND. 253 This bill also substitutes district councils for boards of guardians, and abolishes plural voting. 1 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. 2 1. The municipal borough. 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 Reviews, May, 1893, 404. a 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 ad ministra- 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, i. 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. 1 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. 2 The term of office of municipal councillors is three years, one third of the councillors retiring every year. 3 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. 4 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. 5 Their term of office is longer, being for six years, one half their number retiring every third year. 6 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. 7 The mayor and the retiring mayor are ex-officio justices of the peace. 8 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 1 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. Set. Qu., IV., 199 ft seq. Municipal Corporations Act 1882, sec. n. Ibid., sec. 13. Ibid. , sees. 50 et seq. Ibid., sec. 14 ; Arnold, op. cit., 70. Municipal Corporations Act 1882, sec. 14. 8 Ibid., sec. 155. Ibid. , sec. 15. * Ibid., sec. 15. 256 LOCAL ADMINISTRATION. is obligatory in that quite a heavy fine is imposed upon refusal to serve. 1 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. 2 Further it has complete control over the strictly municipal 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. 3 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. 4 It will be seen from this descrip- tion of the position of the town council that there has been no attempt made to distinguish between the de- liberative and the purely executive or administrative 1 Ibid., sees. 34 and 35. 2 Ibid., sees. 17-21. 3 Local Government and Taxation in the United Kingdom, edited by J. Pro- byn, 280, 281. Most of these powers have been conferred by other acts than the act of 1882. 4 Ibid., 282 and 283. LOCAL ADMINISTRATION IN ENGLAND. 257 functions 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. 1 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. 2 Under each of these committees there is a subordinate officer who is to carry out the commands and directions of the coun- cil or its proper committee. Thus in the administra- tion of the police there is a superintendent of police. 3 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. 4 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 1 Municipal Corporations Act 1882, sec. 22. 9 Ibid., sees. 190-195. 3 Probyn, Local Government and Taxation, etc. t 279. 4 Ibid. 17 2 5 8 LOCAL ADMINISTRATION. 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. 1 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. 2 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. 3 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. 4 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 very much the same 1 Craik, The State and Education, 113. s Ibid., 109. * Chalmers, op. cit., 108. 4 Ibid., ill. LOCAL ADMINISTRATION IN ENGLAND. 259 powers over the 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 par 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 : 260 LOCAL ADMINISTRATION. 1. Necessity of central 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. 1 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 locakgovernment board who has the right, subject to an appeal to the local-government board, to refuse ' Chalmers, op. df., 156. LOCAL ADMINISTRATION IN ENGLAND. 261 to allow to the officer who has been spending money an allowance for money which in his opinion has beeo spent contrary to the provisions of the laws. 1 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. 2 3. Powers of compulsion. 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 1 Ibid., 156 and 157. 3 Municipal Corporations Act 1882, sees. 25 and 26. 262 LOCAL ADMINISTRATION. 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. 1 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. 8 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 1 Chalmers, op. cit., 121. * Ibid., I5I-I54- 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. 1 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 this control is exercised. While in the United States all local legislation is subject to about the same rules of proce- 1 Ibid. 264 LOCAL ADMINISTRATION. dure as are in force for all legislation, i. e. local bilk 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. 1 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) ; 1 For a good description of the methods pursued see De Franqueville, Le Parlement et h Gouvernement Britanniqttes^ vol. III., chap, xxxviii. LOCAL ADMINISTRATION IN ENGLAND. 265 the greater strength 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 local powers, which is in force in the United States, is in 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. /. Ttie 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 work 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 general grant, but its exercise is subject to central administrative control. J The legislature has never at- tempted to enumerate the duties of the local corpora- tions with the same minuteness as in Begland 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 THE FRENCH SYSTEM. 267 porations are to attend to local affairs or that the prin- cipal authority in a given distiict, 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. /All that in the nature of things may be called adminis- 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 in 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. .BuL 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. 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 for the local administrative work. The administrative districts for the purposes of central administration may or 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 268 LOCAL ADMINISTRATION. versa. 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. 1 //. History of the French system of local administration. 1. Up to the revolution. The territorial unity of the French state was attained many years ago. The 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 France. 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 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, 2 and the council of the king at the centre which directed all their actions and heard appeals, taken by individuals aggrieved, from their decisions. 3 The great centralization of govern- 1 Cf. Stengel, Organisation der Preussischen Verwaltung^ 18 and 19. 9 Aucoc, op. cit., I., 150, 151 ; Dethan, L* Organisation des Conseils raux, 4. * Aucoc, I., 127. THE FRENCH SYSTEM. 269 meat 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 pays . dt.,&etseq. 27 o 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 chief reforms of the revolution were social and, ta a degree, political but not^drmmstrative. 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 lish 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. 1 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 2 ; and 1 Aucoc, I., 151-3 ; Dethan, 16 et seq. * Cf. Ducrocq, Droit Adrtiinistratif\ 95 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, 1861. 272 LOCAL ADMINISTRATION. has 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 1. The prefect. In each of these departments is placed an officer called the prefect, who is appointed and removed by the President of the republic on the proposition of the minister of the interior. 2 He receives a large salary, and, from the nature of his position, is obliged to devote his entire time to his work. 3 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. 4 The prefect is at the 1 Aucoc, I., 205. 9 L. zSpluvidse, an VIII, art. 2. This is the great Napoleonic administrative code. 8 Cf. Decree Dec. 23, 1872. 4 Block, Dictionnaire, etc., 975, sec. 23. THE FRENCH SYSTEM, 273 same time the rej^BBfctative in the department of the Central governrM Hhd the executive officer of the purely local adminmration of the department. 1 That is he is a central and a local officer. As a central of- Jicer he is the subordinate of all the ministers of the Central departments at Paris. He is to see that all the laws and decrees and central instructions sent out by the ministers are put into operation. 2 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. 3 He has also a wide power of direc- tion and control over the acts of all these officers and may remove them from office. 4 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. 5 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. 6 The prefect also represents the central government in the courts whenever it sues or is sued. 7 1 Aucoc, I., 155. 4 Ibid., sec. 15 and authorities cited * Aucoc, I., 157. 5 L. April 5, 1884, art. 99. 8 Block, Dictionnaire, 753, sec. 20. 6 Aucoc, I., 159. 7 L. 28 pluvidse, . cit., I., 171. 8 L. March 24, 1831. THE FRENCH SYSTEM. 287 come elected by the municipal council in all the com- munes of France. 1 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. 2 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. 3 2. The mayor. In each commune at the present time are to be found a niayor and sev_firal_depujies 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. 4 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. 6 1 Boeuf, Droit Administratif, 276 citing L. March 28, 1882. 9 Ducrocq, op. cit.^ I., 219 et seq. 8 Boeuf, op. cit. t 265. 4 L. April 5, 1884, arts. 75-86. 5 Ibid., art. 85. 6 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. 1 He is also an officer of what 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. 2 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 has 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. 4 All such ordinances and orders are sanctioned by the penal code, 5 which ' Boeuf, op. cit., 281. * Code d" 1 Instruction Criminelle, arts. II, 48-50, and 53. 3 Boeuf, op. dt., 287 ; Ducrocq, op. fit., I., 197. 4 L. April 5, 1884, art. 97 ; Boeuf, op. cit. 289 et seq. * Art. 471, sec. is. 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. 1 ^ As the executive officer of the communal municipal cor- poration the mayor has the appointment of most of the communal officers, 2 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 all 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. 3 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. TJie municipal council. The municipal council is elected by universal manhood suffrage. Electors must have resided for six months within the commune or have paid direct taxes there. Electors must be regis- tered in order to be able to vote. 4 The rules in re- 1 L. April 5, 1884, art. 95. 8 L. April 5, 1884, art. 90. VW1 over their actions. This central control is exercised with three objects in view. In the first place, since; all the local corporations or local officers are agents for the central administrative services, the central ad minis- tration has the right to force the localities or local officer^ to act in such a way that matters of a general character placed in their charge will not suffer by their negligence or carelessness. In the second place this central administrative control is so formed that by its means the central administration may prevent any of the local corporations from so making use of their local powers as to encroach upon what is recognized as the sphere of central administration/ In order, how- ever, to prevent the central administration from so making use of its supervisory powers as to crush out all local administration, the local corporations or per- sons interested may appeal from the acts of supervision of the central administration to the administrative courts, which thus have the power of delimiting finally the sphere of local administration. In the third place the central administrative control is so formed as to permit the central administration through its exercise to prevent the localities from extravagance and unwise financial administration. In this last matter the cen- 1 tral administrative control is supplemented by a cen- tral legislative control ; and it may be added .that this is the only instance in the French system of a legisla- tive control like the one exercised by the United States commonwealth legislatures through special and local legislation. Finally it is to be noticed that the system outlined above does not apply to Paris and the Department of the Seine, or to Lyons and the Department of the 294 LOCAL ADMINISTRATION. Rhone, which have a special organization rather more subject to central administrative control than the system outlined. 3. Professional character of the local officers. The officers who attend to the detailed work of administra- tion are for the most part professional in character. The only important exceptions to this rule are to be found in the case of the mayor and his deputies, who, it will be remembered, are unsalaried. As a rule the unpaid officers in the French system are simply the members of the various deliberative assemblies, such as the general council and the municipal council, whose duty is to lay down general rules for the conduct of the administration of local matters, especially the matter of local finances. The administrative officers who attend to the detailed work of administration are, for the most part, salaried, devote their whole time to the public work, and are to act in all cases where the general welfare of the country is concerned in accord- ance with instructions issued to them from the central administrative authorities. In many cases stringent qualifications of capacity are required. This is espe- cially true of the municipal civil service. CHAPTER VII. LOCAL ADMINISTRATION IN PRUSSIA. /. History. 1. Conditions in 1807* The present form of local government in Prussia was fixed in 1807. The Prussia of the time previous to 1807 was feudal rather than modern. The collapse of feudal Prussia at the time of the French invasion in 1806 was so sudden and so complete as to prove beyond perad venture that the magnificent fabric reared with so much pains by the great Prussian kings of the eighteenth century rested on most insecure foundations. 1 The administrative sys- tem which had come down from the time of Frederick William I was bureaucratic to the last degree. The result of such a system was that the people partici- pated hardly at all in the administration or even in the government, and naturally not only had lost all politi- cal capacity, but also had come to regard the govern- ment either with indifference or with absolute hatred. The social conditions of the Prussian people also had been such as to favor one class at the expense of the others and at the same time to impoverish the coun- try as a whole. The distinctions of class had been so fixed as almost to divide the people into castes, and artificial barriers placed about the freedom of trade See/W. Sci. The only difference is that one 1 P. O., sees. 121, and 122. LOCAL ADMINISTRATION IN PRUSSIA. 315 set of authorities performs all the duties in the circle which two sets of authorities perform in the province. Thfc circle authorities are the landrath, the circle committee, the justice of the peace, and the circle diet. 1. The Landrath. The landrath is the agent of the central administration, discharging in the adminis- trative district of the circle about the same duties that are performed in the province by the governor, and in the government district by the government and the government president. He is the subordinate of the gov- ernment president. He is at the same time the execu- tive for the current local administration of the circle. In this capacity he is the subordinate of the circle com- mittee, of which he is also president. 1 He is a profes- sional officer, and must be qualified for the higher administrative service, and is appointed by the Crown. 2 2. The circle committee. The circle committee also is an agent as well for the central as for the local administration of the circle. 3 It occupies in the ad- ministrative district of the circle the same position that the district committee occupies in the government district, and the provincial council in the' province. That is, it has certain executive functions to perform, and exercises a lay control over the actions of the professional landrath. In so far it acts as an authority of the central administration. 4 As local agent, it is the discretionary executive of the circle. It conducts the administration of the circle in accordance with the resolutions of the circle diet. 5 The circle committee is a distinctively lay authority. It is composed of the landrath, as its president, and of six members chosen 1 K. O., sec. 76. 2 Ibid., sec. 74. 3 Ibid., sec. 130. 4 Stengel, Organisation, etc., 339, 392. 5 K. O., sec. 134. 3 i6 LOCAL ADMINISTRATION. by the circle diet from among the members of the circle. 1 The term of service is six years, 2 and the office is obligatory in that a fine is imposed for refusai~4o serve for at least half the regular term. 3 As an authority for the central administration it has under its direction the various justices of the peace. As the local executive authority of the circle it has under its direction the landrath and all other circle officers.* ^ The circle committee was modelled largely upon the English petty and special sessions of the peace. It performs in Prussia many of the duties, especially those of a police character, which its English prototype performed in England. Thus it is the general rural licensing authority, is a highway authority, and acts as the supervisory instance over the actions of the Prussian justice of the peace which office is likewise constructed upon the English model. 3. The justice of the peace. The office of justice of the peace is one of the most important established by the reform. One of the chief ends of the reform movement was to do away with the institution of hereditary magistracy, which existed especially in the eastern provinces of the kingdom, and under which the local police was administered by the large landholders. The purpose of the reform was to abolish this, almost the last relic of feudalism, and to put the local police into the hands of officers appointed by the Crown, who, at the same time, should not be professional in character, but, like the English justices of the peace, should be chosen from society at large, should be obliged to serve, and should receive no salary for the 1 Ibid., sec. 131. * Ibid., sec. 8. 1 Ibid., sec. 133. 4 Ibid., sees. 134, 137. LOCAL ADMINISTRATION IN PRUSSIA. 317 discharge of these public duties. The office was to be honorary. As Dr. Gneist says : The principal end of the law [i. e., the circle law of 1872] was, after the analogy of the English justices of the peace, to attract into the service of the state the well-to-do and intelligent classes. With this end in view the territory was divided into 5658 small divisions, each of which embraced a number of manors and town- ships with an average population of 1500 inhabitants. In each of these divisions are a justice of the peace and a deputy, who are appointed in the name of the Crown by the governor of the province from a list drawn up and presented to him by the circle diet. . . . The duties of the justice of the peace consist principally in the administration of the police of his division. It is he who takes police measures against vagrants, administers poor relief, prevents violations of the law ; he interposes in disputes between masters and servants ; he watches over the application of the building, health, and game laws and the laws passed to pre- serve order in hotels and public places ; he supervises the mainte- nance and the police of highways. His orders are sanctioned by short terms of imprisonment ; while he can, in necessary cases, order provisional arrest without encroaching upon the ordinary jurisdiction of the criminal courts. He supervises the daily action of the executive officers of the police force and has the right to amend all acts of theirs which in his judgment are inexpedient or incorrect. . . . The justice has under his orders the mayors of the townships and the personnel of the gendarmerie. He him- self is not put under the disciplinary power of the landrath, but under that of a sort of K/udicium parium the circle committee with a right of appeal from their decision to the courts of justice. 1 y This experiment seems to have proved a success. In the ten years immediately following the introduc- tion of the reform there was only one case of the dis- missal of a justice of the peace from office for corrupt administration. Of course the personnel of the justices 1 Gneist in Revue GJndrale, etc., Oct., 1886, 252. See also K. O., sees. 48, 58, 5Q- 3 iH LOCAL ADMINISTRATION. of the peace must to a large extent be the same as that of the old police system that is, the larger landholders will hold the offices. But there is a great difference between an hereditary and an appointed magistracy, even when the class from which the magistrates are taken remains the same. The power of appointment possessed by the governor makes it possible to exclude from the office any person who is notoriously actuated by class motives. Further the control possessed by the circle committee, which has the right to remove a justice of the peace, and which is not composed ex- clusively of representatives of the landholding classes, must tend to restrain any justice of the peace from yielding too much to class feeling. j^ 4. Town officers. The only other important officers are the Dorfschulzen or town-mayors. Most of the political functions of local government and also most of its important economical functions are attended to by the provincial and circle authorities,! The ruraT towns are therefore little more than organizations for the regulation of the purely prudential matters of an agricultural community ; such as common pasturage and tillage, and for the administration of a very few public services, such as the most unimportant roads, the schools, and the churches. These matters are attended to by assemblies, sometimes composed like the United States town meetings, of all the electors of the towns, sometimes formed of representatives of the electors of the towns. 1 These assemblies have the general power of controlling and regulating prudential matters of purely local interest. 2 The decisions of the assembly are enforced by executive officers viz., the village mayor ' T.oening, op. cif., 165. 2 Jbid., 169. LOCAL ADMINISTRATION IN PRUSSIA. 319 and two Schoffen? During the old feudal days before the reform, these offices, like the police offices, were often hereditary. Under the new legislation the mayors and Schoffen are to be elected by the town assemblies. 2 Their choice, however, must be approved by the landrath 3 ; for the mayors, besides being the executive officers of the towns, have the general admin- istration of the police of the state. As police officer the mayor has the right to order temporaiy arrest and to impose small fines for the violation of his orders. 4 Service in this office is obligatory and unpaid. 5 . Somewhat similar to the local organization of the town is that of the manor. The manor exists only in those portions of Prussia which have not as yet been completely freed from the influence of the feudal regime. 6 It is little more than a town which belongs wholly to one person. In the manor, in addition to the private rights which would ordinarily result from the possession of property, the lord has certain rights and duties of a semi-political character. Thus he acts as mayor ; but as mayor he is subject to the control of the justice of the peace. As the justice of the peace is now subjected to the control of the circle committee, there is no longer the same danger as formerly that these semi-political powers will be abused. One of the great obstacles to the development of an energetic and efficient local government in the towns 1 Ibid., 170. 8 K. O., sees. 22-24. 3 The landrath's veto, however, must be approved by the circle committee a popular authority. K. O., sec. 26. 4 Ibid., sees. 29, 30. 5 Ibid., sees. 8, 25, 28. 6 Stengel, Organisation, etc., 234. 320 LOCAL ADMINISTRATION. and manors is that they are frequently of such small size that they are unable to bear the expense of the various local services, such as roads and schools. To obviate this trouble, the reform legislation permits and encourages the union of towns and manors and the transfer of their functions to the new corporation thus formed. 1 The new division formed by such a union is often coterminous with the division of the justice of the peace (the AmtsbezirTc). When such a union is accomplished, there is provision made for an assembly for the division. This is elected by the local electors in accordance with the three-class system adopted in Prussian municipal elections. 2 It should be noted that some sort of a similar body exists in all the divisions ; but it never attains the same importance in those divisions to which the duties of the communes and manors have not been transferred, since its functions in such a case are simply to control the police administration of the justice of the peace. 3 5. The circle diet. The formation and the functions of this body are of great importance, not only because of its influence in the affairs of the circle itself, but also because it elects the members of the provincial diet and because it finally raises all the provincial taxes. Before describing the formation of the circle diet, mention must be made of the fact that the principle of universal manhood suffrage has never taken root in Prussia. This is particularly true of the system of representation in the local legislatures in both the rural and the urban districts. From time immemorial repre- 1 See the new Landgemeindeordnung of 1890. 8 See Bornhak, " Local Government in Prussia," A nnals of American Academy of Political and Social Science, III., 403. Cf. Infra, p. 331. . "K. O., sees. 48, 50, 51, 52, 53. LOCAL ADMINISTRATION IN PRUSSIA. 321 sentation has been regarded as a right of property, not of men. The great difficulty has been to assign a fair representation to the different kinds of property exist- ing in the localities. Up to the time of the late reform the owners of landed property, and especially the owners of large amounts of landed property, had been able to gain for themselves a disproportionate share in the management of local matters. This it has been the purpose of the reform to do away with, but no attempt has been made to introduce the principle of manhood suffrage. All cities of twenty-five thousand inhabitants, it must be remembered, are excluded from the jurisdic- tion of the rural circles and form what are termed urban circles. As these urban circles are represented according to their population in the provincial diet, moneyed capital has its representation in the provincial diet independently of the arrangements provided for the circle diets. In the rural circles, which arevcomposed of the open countiy and of cities of less than twenty-five thousand inhabitants, the circle diet is elected by the members of the circle who possess the qualifications of local suf- frage. 1 Members of the rural circle are, in the first place, all physical persons who reside within its boun- daries 2 ; in the second place, all physical persons who, though not residing within its boundaries, own landed property therein or pursue a stationary trade or occu- pation therein (these are known as the Forensen^) ; and in the third place, all juristic perso_ns having their domicile within the circle, including the state if it has property in the circle.^ All of these members of the 1 K. O., sec. 7. 2 Ibid., sec. 6. * Ibid., sec. 14. 4 Ibid. VOL. I. 21 322 LOCAL ADMINISTRATION. circle are formed into three colleges for the purpose of electing the members of the circle diet, 1 and in each of these colleges the qualifications of the electors and the effect of their votes are different. The first college is composed of all persons, including juristic jpersons, who are members of the circle and who pay for their landed property a land and building tax of at least 225 marks (this sum may be raised by, the provincial diet to 450 or lowered to 150 marks), or who pay a correspondingly high trade tax for a busi- ness carried on in the open country. 2 Every German citizen who falls within this category, who is sui jwri* and has not been deprived of civil honors by judicial sentence, may cast a vote. Juristic_persons, women, minors, and incapables may exercise their right of suffrage through representatives. 3 This college, it will be noticed, represents the owners of large landed estates, since land will naturally form the predominant property element in the rural circles. Persons who pay a high trade tax are assimilated to the large land- owners simply in order to provide representation for the various industries which spring up in the open countiy. \ Mn the second college the electing body is composed, first, of the representatives of the rural towns who have been chosen by the assemblies of such towns; second, of the owners of manors, which are assimilated to towns ; and third, of those persons who pursue a trade in the circle for which they are taxed below the rate which would put themjp the first college. 4 The second col- 1 Ibid., sec. 85. *Ibid., sec. 86. This is the middle rate of the highest class in the Gewerbesteuer . *Ibid., sees. 96, 97. 4 K. O., sees. 87, 98. LOCAL ADMINISTRATION IN PRUSSIA. 323 lege, it will be noticed, is intended to represent the smaller owners of land, and also the smaller tradesmen, artisans, and manufacturers who otherwise would not be represented at all, since ownership of agricultural land is generally necessary to vote for members of the assemblies of the rural towns. 1 The representation given to the owners of manors is of course an anomaly. It is due to the fact that they are obliged by law to defray out of their own pockets all those expenses of the manors which, were they rural towns, would fall upon the inhabitants. But as the manors are fast dis- appearing this privilege is not destined to have great importance in the future. 2 The third college is a common session of the muni- cipal authorities of the cities within the circle. 3 It is therefore composed of the representatives of personal property or moneyed capital. This statement perhaps requires some explanation/ From the social standpoint all city property, whether consisting of land, houses, or what the Anglo-American law terms personal property, is really to be regarded as personal property or capital. The owners treat it as capital, and their interests are those of the capitalistic class rather than those of the agricultural or rural land-holding classes. v The members of the circle diet to be elected by these three colleges are apportioned to the rural and city colleges according to population ; except that the col- lege of the cities, if there is more than one city in the circle, may not elect more than half of the members of the circle diet, and if there is only one city in the circle, then not more than one third. The other members of 1 Loaning, op. cit., 165. 2 Stengel, Organisation, etc.^ 236, note I. 3 K. O., sec. 88. 324 LOCAL ADMINISTRATION. the circle diet i. e. the number left after subtracting from the total number the number of the city college members are to be elected in equal proportions by the other colleges ; i. e. the college of the large landhold- ers and that of the small landholders each elects one half of the remainder. 1 The result of such a system of representation is to assure to all classes a share of rep- resentation on both the circle and the provincial diets. 5 The processes of election differ considerably in each college, and are of so complicated and technical a char- acter as to offer little interest to the foreign student. 3 The authority organized in this peculiar way has to perform for the circle as a municipal corporation about the same duties that the provincial diet has to perform for the province. That is, it lays down the general rules which shall be followed by the circle officers in their management of the circle administration ; decides what services the circle shall undertake ; and levies the taxes necessary to defray the expenses of the circle administration and to pay to the province the quota of money which the provincial diet has decided shall be paid by the circle for the* maintenance of provincial in- stitutions and administration. 4 The raising of such moneys, it may be said, is the principal function of the circle diet. 5 In the performance of this duty the circle diet does not have any very wide field of action/ One of the things which the circle law was most careful to do was to take away from the circle diets the power to introduce any new taxes, because these might easily derange the system of taxation adopted for the country '/to/., sec. 89. - Cf. Pol. Sci. Qu., V., 145. :{ For a description of them see Stengel, Organisation, etc., 244. 4 K. O., sees. 115, 116. 5 Ibid., sec. 119. LOCAL ADMINISTRATION IN PRUSSIA. ->? o~ y at large. The law has obliged the circle diet to get its revenues by adding percentages to the direct central taxes. 1 There are several of these, some upon land and some upon business and some upon income, each tax thus affecting different classes of property or persons. As capital might be especially important in one circle and landed property in another, it was not felt advisa- ble by the framers of the reform measures to fix any hard and fast rule which the circle diets must follow in fixing the rates at which each different kind of prop- erty was to be taxed for circle purposes. But at the same time it was considered unsafe to allow the circle diets perfect freedom in the fixing of such rates, from the fear that in the circles where any particular prop- erty interest was predominant the majority would be inclined to tax unfairly the property of the minority. Therefore the law has laid down limits within which the circle diets may fix the rates of the particular taxes aqd beyond which they may not go. 2 Under these limitations, taken together with the careful provision for a fair representation of all the different classes of property upon the circle diet, it is felt that the tempta- tion to local tyranny through the exercise of the taxing power is to a large extent removed. As regards the total amount of taxes to be raised by any circle, the law has imposed one limitation in the interest of eco- nomical administration. It provides that if a circle diet wishes to impose a tax which is more than fifty per cent, of the entire central tax levied in the circle, it must obtain the consent of the proper supervisory authority of the central government (in this case the ministers of finance and of the interior at Berlin), 3 1 Ibid., sec. 10. Ibid. /#,/., sec. 176. 326 LOCAL ADMINISTRATION, )( 111 addition to these powers of taxation, the circle diets have a series of functions to perform, some of which are imposed upon them by law, some of which they may assume voluntarily. The circle law of 1872, in sections 115 and 116, would seem to indicate that the circle diet may establish such institutions as in its judgment will benefit the circle, and which, it must be added, are among the general objects for which the circle organization has been formed. 1 For instance : it could not establish a new system of courts, since that is not a matter of local concern ; but it might establish new institutions of an educational or charitable character, since they would be of particular benefit to the circle and are within the general scope of its competence. In the establishment of such new institutions, however, the diets must not overburden the circles with debts or with heavy taxes. To prevent them from so doing, the law has reserved to the central administrative authorities large powers of control. Debts not espe- cially permitted by law may not be incurred without the approval of these authorities ; nor, as has been noted, can the circle diets impose taxes beyond certain limits. 2 The question naturally arises : What is the use of two bodies with functions so similar as are those of the provincial diet and the circle diet ? Why could not the work of the province as a municipal corporation be transferred to the circle, and the circle diet be allowed to attend to all the duties which are now de- volved upon the province ? It must, however, be re- membered that the chief function of the provinces as municipal corporations is to attend to matters of a less 1 Loaning, op. cit., 204 ; Stengel, Organisation, etc., 25. K. O., sec. 176. LOCAL ADMINISTRATION IN PRUSSIA. 327 local character than those which fall within the sphere of the circles ; the object of their reorganization in their present form was to decentralize the central administration. Previous to the province law of 1875 and the dotation laws of 1873 and 1875 a series of in- stitutions, such as asylums, were supported and admin- istered by the central government, which, it was felt, could be better attended to nearer home. Therefore the central government gave these duties to the province. It could not well entrust them to the circle, because it was felt that the institutions in question were of too important a character to be attended to by so small a district ; that the resources of the circle, both in ad- ministrative ability and in money, would not be suffi- cient for the adequate performance of these duties. While the province represents the central government in these matters, the circle represents the localities, and is by far the most important of the purely local munici- pal corporations. Most of the important offices in the circle which have been mentioned are honorary and unsalaried, and the acceptance of all these honorary, unsalaried offices is obligatory. 1 That is, refusal to accept office after an election or appointment is attended, whore no legal excuse exists, by loss of local suffrage fon from three to six years and by an increase of circle taxes of from an eighth to a quarter. Among the legal excuses are chronic sickness, the following of a business which necessitates frequent or continuous absence from home, the age of sixty years, service as honorary officer within the last three years. \ This system of coercion for hon- orary offices, says Dr. Gneist, 1 K. O., sec. 8. 328 LOCAL ADMINISTRATION. is applied without exception in the reform legislation and had before this time been applied in the municipal organization of Prussia. The people have everywhere accustomed themselves quickly to this constraint. At first it was feared that it would be impossible to find competent persons to fill a position entailing such a grave responsibility [as that of justice of the peace]. But in 1875, after the law had been put into operation, more than 5000 justices and as many deputies were found and it was necessary to fill only 183 places with salaried officers (commissarische Amtsvor- stehtr) who were temporarily appointed for those districts in which it had been impossible to find the proper persons. 1 The purpose of the application of the principle was to cultivate a greater public spirit and political capacity among the well-to-do rural classes in the same way that such spirit and capacity had, as it was admitted, been cultivated in the municipalities through the same prin- ciple of obligatory service as developed in the municipal corporations act of 1808. IV.^The cities. In order to give a complete outline of the local government of Prussia it remains to speak of the municipal organization. It will be remembered that the first steps in the great reform movement of this century were made by Stein in his municipal corpora- tions act of 1808, which served as the model for both the circle and the province laws passed so many years afterwards. 2 Stein was able to begin the great work with the cities, because, as a result of the centraliza- tion of the eighteenth century, the social conditions of the municipal population had been made comparatively equal. The strong government of Frederick William I 1 Revue Gtnerale, etc., Oct., 1886, 253. 3 For a history of the development of the Prussian and German cities up to 1808, see Leidig, Preussisches Stadtrecht, 2-20. LOCAL ADMINISTRATION IN PRUSSIA. 329. had largely freed the poorer classes from economic de- pendence upon the richer. Though the spirit which was breathed into the new organization was quite different from that which animated the old municipal system, the actual form of municipal government, established by the new law, was in no respect very different from that which existed before Stein began his work. The changes which he made consisted mainly in the widening of the suffrage for the city council, which still remained the important organ of the municipal government; in the new obligation which was imposed upon the citizens of the munici- pality to take upon themselves public duties ; and in the greater degree of freedom which was allowed the cities in the management of their own affairs. Since the time of Stein, some modifications have been made in his plan modifications which may not on the whole be called improvements. They were due mainly to the desire of the Conservative party which, with the ex- ception of very short periods as during 1848-50 has until recently been in complete power to curtail the political influence of the municipal population. These modifications have consisted mainly in the strengthen- ing of the central control over the cities, and in the limitation of their freedom of action in the manage- ment of their own affairs. In detail, the present municipal organization is as follows : x^C Just as in the open country, it is recognized^ that there is a sphere of municipal action in which the muni- cipality should have considerable autonomy, and that there are certain functions of administration attended to within the municipal district which interest the country as a whole, and over which the central admin- 330 LOCAL ADMINISTRATION. istration should have a greater control. Just as in the circle, again, it is believed to be better not to make a complete separation in the authorities which are to attend to these two different classes of duties, but to charge the executive authorities of the city with the performance of those duties which are of general con- cern. It is provided, however, that in the larger cities the central government may, if it sees fit, put into the hands of distinctively central organs the management of police matters * ; and this it has done in many cases. In the smaller cities on the other hand, the city execu- tive attends to these matters as well as to all other matters which affect the country as a whole. In these cases it is regarded as an agent of the central adminis tration, and acts under the control of the central ad- ministrative authorities, generally the governments and the government presidents. 2 In case the city is at the same time an urban circle which it will be remem- bered is the case in all cities having over twenty-five thousand inhabitants, the city executive in like manner attends to all the duties which in the rural circles are attended to by the landrath. In these urban circles there is also a lay body, similar to the circle committee, called the city committee, 8 which, however, attends only to matters of central concern. As this city committee consists of the burgomaster of the city and of members chosen either from the town executive board, or, where there is no such board, from the town council, 4 the result is that in all cases it is the city officers who attend to the central adminis- 1 Law, March n, 1850, sec. 2. 8 Stadle-Ordnung, May 30, 1853, sec. 56, cited hereafter as S. O., 1853. 3 K. O M sec. 170. 4 A. L. V. G., sees. 37, 38. LOCAL ADMINISTRATION IN PRUSSIA. 331 tratioii in the city with the exception (already noted) of the police administration in the larger cities. 1. City council. But while city officers are thus generally called upon to attend to the business of the central administration in the city, the most important functions of the municipal administration are those of a distinctively local character. The general control of this local administration is vested in the city council, which is chosen by the taxpayers of the city. 1 The method of election is peculiar: it is well adapted to keep the control of the city affairs in the hands of the wealthy classes, since the influence of a man's vote depends largely upon the amount of > taxes he pays. The system is as follows : The total amount of the direct taxes paid in the city is divided into three parts. Those persons paying the highest taxes, who pay one third of the entire amount, have the right to elect one third of the members of the council. Those persons who pay the next highest taxes, and who pay another third of the entire amount, elect another third of the members of the council. All the remaining taxpayers elect the remaining third. 2 An example taken from the city of Bonn, which has a population of about thirty -six thousand inhabitants, will show how thoroughly this method of representa- tion throws the control of the city into the hands of the wealthy classes. Out of the total number of 3,402 electors, 162 electors elected one third of the town council, 633 elected two third$, and the remaining third was elected by 2,607 electors. The disproportion between the classes was really much greater than the above vote indicates, for while sixty-four per cent, of J S. O., 1853, sec. 35. 2 S. O., 1853, sec. 13. 332 LOCAL ADMINISTRATION. the electors of the first class voted, and sixty-six per cent, of the second class, only twenty-two per cent, of the third class availed themselves of their electoral privilege. The explanation is said to be this : The vote not being secret, intimidation had been practised to such an extent that the voters of the third class preferred to stay away from the polls rather than vote for candidates who were not of their choice. 1 The authority thus formed has the absolute control of the entire city administration. The law simply says that it shall govern by its decisions the affairs of the city. 2 In addition to deciding what branches of admin- istration the municipality shall attend to it also elects all of the executive officers of the municipality. 2. City executive. The execution of the resolutions of the town council is entrusted either to a burgo- master who has complete control of the administration in its details, or to an executive board whose members are elected by the town council. In such an executive board, a part of the members are professional in char- acter (as, for example, the school commissioner, the corporation counsel, the town surveyor or commissioner of public works) and a part are purely lay officers, i. e. ordinary citizens who are obliged to assume office if elected, and to serve at least half the regular term of six years. 3 The same obligation to serve is imposed upon those persons who are elected to be members of the town council. 4 In case the executive authority of 1 Leclerc, " La vie municipale en Prusse," Extrait des Annales de r Ecole Libre des Sciences Politiques, 13. 9 For example, see Siddtc-Ordnung der Provinz Westpkalen, March 19,. 1856, sec. 35. 8 Ibid. 4 Z. G., sec. 10. LOCAL ADMINISTRATION IN PRUSSIA. 333 the city is vested in a such a board, the burgomaster is simply the presiding officer and has powers little greater than those possessed by the other members of the board. But the moral influence which he exercises is nevertheless so great as very largely to determine the character of the city administration. 1 He is a profes- sional officer and receives a large salary. In filling the position of burgomaster or, in fact, that of any of the professional officers of the executive board the method pursued indicates the desire of the city councils to secure the best possible men. The city council of n city which needs a burgomaster, a commissioner of public works, or any such officer, advertises in the papers for the particular officer needed, stating the qualifications which are required. The council then selects from among the applicants the one who seems best fitted for the place. A large city often chooses. a burgomaster who has made his reputation as a good executive officer in a smaller city. 2 As the term of office is at least twelve years, and may be for life, the positions are much sought after, and the applicants are generally well educated men who have had experience in city administration. 3 The election of these profes- sional officers generally requires the approval of the central administration before it is of force. 4 This is considered to be necessary on account of the many duties affecting the country at large which are devolved upon the city executive. While the execu- tive ias, in the main, to carry out the resolutions of the council, it has at the same time to exercise quite a control over the actions of this body both to keep it 1 S. O., 1853, sees. 57, 58. Leclerc, op. tit., 20. 3 Ibid., 17. 4 S. O., 1853, sec. 33 ; Z. G., sec. 13. 334 LOCAL ADMINISTRATION within the law and to prevent it from taking unwise action. In case of conflict between the executive and the council the matter is decided by the proper super- visory authority, in this case the district committee. 1 As this is a lay authority, the professional officers of the central administration cannot now interfere in the municipal administration. A further control exer- cised by the central government over the municipal . administration is found in the requirement of the approval of the district committee for certain resolu- tions of the city council before they are regarded as valid. Among the acts subjected to such control are the more important measures of the financial administration, such as the making of loans and the imposition of high taxes.* The rules are much the same as those already mentioned as adopted for the communal administration of the circle and the province. In fact, the control over the circle and the province was modelled on that already formed for the municipalities by the municipal coiporations act of Stein as amended by later laws. 3. City departments. A word must be said in re- gard to the organization of the city departments which attend to the detailed current administration. The municipal corporations act of 1853 provides that for these matters there may be formed permanent commis- sions or boards, composed either of members of the* council or of members of the executive board or of these and other municipal citizens, which boards or commissions are the subordinates of the executive and have under their direction the salaried members of that J S. O., 1853, sec. 56 ; Z. G., sec. 17, i. S. O., 1853, sec. 53 ; Z. G., sec. 16. Abx. 3. LOCAL ADMINISTRATION IN PRUSSIA. 335 body. 1 The purpose of this arrangement is to call into the service of the city as many of the citizens as possi- ble. Service on such boards is obligatory, as is the case with all unsalaried positions in the city govern- ment. Finally the same law provides that the larger cities may be sub-divided infoPwards, over which are to be placed ward-overseers to be elected from among the citizens by the town council. 2 These ward-over- seers are the subordinates of the executive board for all matters of municipal administration. This institu- tion has been very generally adopted in the larger cities, where it has had excellent results. The ward overseers serve as means of communication between the different districts and the executive board. If any- thing goes wrong in the district, there is always some one to whom complaint may be made with the as- surance that the complaint will be attended to. An example of the workings of such an institution may again be taken from the city of Bonn. This city is divided into ten wards. In each of these is an over- seer who, in the administration of public charity, has under him ward commissions of citizens, whose duty it is, under his direction, to examine into all cases of de- mand for poor-relief. So many persons are called into the municipal service of public charity that each one of them has no more than two or three families to attend to and thus knows perfectly the condition of those asking for relief. 3 This method of administering poor relief is simply the adoption in the public admin- istrative system of the method which has been so successfully applied in this country by private associa- tions such as the charity organization societies and the bureaus of charity. S. O., 1853, sec. 59. * Ibid., sec. 60. ! Cf. Leclerc, op. cit., 57. 336 LOCAL ADMINISTRATION. V. General characteristics of the Prussian system. \ 1. Administrative control. As in the French, so in the Prussian system of local government, the inter- ference of the central legislature in local affairs is infinitesimal if it exists at all. | Enough of the old feudal ideas of local autonomy have remained to per- mit of the development of the principle that there is a sphere of administrative action which must be left almost entirely to the localities ; that within this sphere the legislature should not interfere at all ; that any central interference or control that may be required over this local administration should come from the administration and in the main from the lay authorities of the administration, and should be confined simply to preventing the localities from incurring too great financial burdens. \Therefore the law does not, as in the United States and as it does to a certain extent in England, enumerate the powers and duties of the localities, but says simply that the local affairs of particular districts shall be governed by the decisions of local authorities in the nature of local legislatures,- and that in those cases only in which the law has ex- pressly given it the power, may the central administra- tion step in to protect the localities from their own unwise action>\ This system is one of general grants of local power with the necessity in certain cases of central administrative not legislative approval or control. The benefits of such a system cannot be over- estimated. Through its adoption all the evils of local and special legislation are avoided. ^.In place of an irresponsible 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 ADMINISTRATION IN PRUSSIA. 337 of the legislature to permit local action has 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 administration to judicial con- trol. 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 riot only relie'ved 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 sort of judicial control over it should be established. This, as has been stated, was one of the main ends of the reform movement of 1872f" By the establishment of this judicial control, l 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 I United States, where the actions of the local authori- I ties are subjected to the strictest s^rt of judicial control. 1 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. 1 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. 2 1 Stengel, Lehrbuch des Deut3chcn Vcrwaltungsrecht, 158 ; Mechem, Law of Public Offices and Officers, I . 9 Supra, I., p. 94. i THE LA W 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. 2 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. 3 Applying these prin- ciples, deputies not obliged to take the oath required 1 United States v. Hartwell, 6 Wallace, 385. * See State v. Stanley, 66 N. C., 59. 1 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 who may be officers. 1 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. 2 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 3 ; 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. 4 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 1 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. 1 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. 4 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. the discharge of his duties, or whether or not the duties are discretionary. 1 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. 2 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. 3 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.. ffermaine. 4 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. 5 This rule is not, however, to be reconciled 1 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. "99 U. S., 508. 5 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. Hartwellf which holds that a person whose appointment though not made by a head of a department has been approved by him, is an officer. 2 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, L 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. 3 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 ot July 2, 1862, must be taken by senators also 4 ; 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. 5 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. 1 Supra, II. , p. 2. 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 tt seq. :{ See Blount's Trial. * Cyclopaedia of Political Science, etc., sub verbo impeachment, II., 481. 5 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. II. 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. 1 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. 2 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, 1 The Germans call such a system a bureaucratic system, while the equivalent French term is systime unitaire. 9 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. 1 ///. Honorary and professional officers. Officers, like authorities, may be variously classified. 2 In many states there is an important distinction be- 1 Supra, I., pp. 86, in. 2 See Mechem, op. cit., g. S THE LA W OF OFFICERS. tween professional and honorary officers. 1 The 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 affair's 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 1 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. 1 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- 1 Supra, I., p. 301. io 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. n 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 I860. 1 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 1 See Supra, I., 298; Political Science Quarterly, IV., p. 656 et seq. X2 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, 1 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- 1 Cf. Gneist, Das Englische Parlament, Introduction. OFFICES AND OFFICERS. , 3 sible. There are many positions in the municipal ad ministration 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. 1 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 <3are 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. 1 C/. President Eliot in the Forum, October, 1891, on " One Remedy for Mu- nicipal Mis-government" ; Gumplowicz, Das Oesterreichische Staaisrecht, 179, 1 80. CHAPTER IL J 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. 1 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. 2 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. *Gneist, Das Englische Verwaltungsrecht, etc., 1884, 167. 14 I* ' 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. 1 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. 2 In both France and Germany the great majority of offices both central and local are filled by executive appointment, the only officers of importance who are 1 Gitterman, '* New York Council of Appointment," Pol. Sd. Qu., VII., 80. 8 Supra, I., pp. 146, 243, 274. 16 THE LA W OF OFFICERS, elected being the members of the various local deliber- ative assemblies. 1 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. 2 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, 1., pp. 84, 91, 302, 30|. J 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 necessaiy 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, i. 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 which has been adopted by the most recent and important municipal charters in the United States. 1 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. II. 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. 3 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 1 Supra, I., p. 210. a 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. 1-21. 3 Commonwealth v. McClelland, 83 Kentucky, 686. This power is expressly granted in many of the constitutions. Stimson, 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. 1 Such registration laws have been held to be reasonable regulations, and, as such, per- fectly constitutional 2 ; 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. 3 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. 4 The general rules with regard to elections are : 1. The election must be regular. Elections must always be held at the time and place appointed by the proper authority. 5 This authority may be the consti- tution, a statute, or an administrative act. 6 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. 7 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 1 Stimson, op. '/., sec. 236. * Commonwealth v. McClelland, 83 Kentucky, 686. 3 Rogers v. Jacobs, n S. W. Rep., 513. 4 Trimmer v. Bomar, 20 S. C., 354. 8 Mechem, op. cit., sec. 170. 6 Brodhead v. Milwaukee, 19 Wis., 624; Brewer v. Davis, 9 Humph. Tenn., 208. 1 Stephens v. People, 89 111., 337. 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. 1 But a special election would not be regarded as valid in case no notice of it was given. 2 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. 3 It has been held, however, that in a case of an emergency the place may be reasonably changed provided notice is given. 4 3. Method of voting (ballot). As a general thing the vote must be by ballot. 5 The word ballot originally meant a little ball by the casting of which it was at first proposed that the vote should be taken, 6 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 7 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 1 People v. Hartwell, 12 Mich., 508 ; People v. Cowles, 13 N. Y., 350. a 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. 4 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. 5 Stimson, op. ctt., sec. 231. * Theodore W. Dwight, on " Harrington," in Pol. Sci. Qu., II., 16. 7 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. 1 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. 2 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. 3 The ballots, after they have been cast, are counted by officers called can- vassers, whose duties are usually ministerial in char- acter, 4 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. 5 4. What constitutes an election to office. As a gen- eral thing a candidate is elected to office by a plurality 6 1 Mechem, op. fit., sees. 192-4. a Ibid., sees. 195-202. 8 Cooley, Constitutional Limitations, 6th Ed., 768 ; People v. Pease, 27 N. Y., 45, 84. Hadley v. Albany, 33 N. Y., 603. 4 Mechem, op. fit., sec. 208. * Stimson, op. fit., sec. 232. 22 THE LA W OF OFFICERS. of the legal ballots cast, even though a majority of legal voters have not voted. 1 In the leading case of People v. Clute it was held, that a majority of votes cast for an ineligible candidate, if the ineligibility were 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 s ; 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. 4 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 1 People v. Clute, 50 N. Y., 451. * Mechem, op. cit. t sec. 206. 3 State v. Denny, 118 Ind., 449; Evansville v. State, Ibid., 426; see also State v. Kennon, 7 Ohio St., 546, 560. 4 See Mayo v. State, 15 Md., 376 ; People v. Mahany, 13 Mich., 481 ; People v. Hurlburt, 24 Mich., 44, 63. 5 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. 1 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. 2 Thus if the commission has been issued to the wrong person it may be revoked and a commission granted to the proper person. 3 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. 4 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. 5 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, 6 it is not unfrequently the case that the law compels the citizen to take an honorary office 1 State v. Barbour, 53 Conn., 76 ; Marbury v. Madison, i Cranch, 137. 2 Ibid. ; Mechem, op. cit., sec. 117. 1 Gulick v. New, 14 Ind., 93 ; State v. Capens, 37 La. Ann., 747. 4 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. 5 People v. Woodruff, 32 N. Y., 355 ; State v. Barbour, 53 Conn., 76 ; Gulick v. New, 14 Ind., 93. 6 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, 1 and where failure to assume office might generally be punished by indictment. 2 The strictness of this rule has been somewhat relaxed in this countiy, where the rule has been retained. Tims 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. 3 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. 4 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. 6 In France it is almost never the case that the accept- ance of office is obligatory. In Germany the rule is 1 Rex v. Bower, i B. & C., 585. 'See State v. Ferguson, 31 N. J. L., 107. 3 Hartford v. Bennett, 10 Ohio St., 441. 4 Johnston v. Wilson, 2 N. H., 202; Smith v. Moore, 90 Ind., 294,306, 313. 5 Ibid. 6 Mechem, op. tit., 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. 1 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, *. e. 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 facto. 3 It has, however, been held that an office must be originally established by law, i. e. that while there may be an officer de favto there can never be an office de facto* One result of this rule as to the acts of officers de facto is that such acts may not, any 1 Supra, I., p. 327. * 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. 4 Norton v. Shelby Co., 118 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 party. 1 This is not, however, true of the acts of mere intruders because their acts are absolutely void. 2 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. 8 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, 4 nor may he bring action in his official capacity without showing title, 5 nor may he, when sued, escape responsibility for an act which may be justified only by a valid title to the office. 6 A further result of this position of officers de facto is that they are liable for damages resulting from their negligence, 7 must per- form all the duties connected with the office during the time they assume to hold it 8 and may be punished criminally for the commission of official crimes. 9 1 Ibid. ; People v. Hopson, i Denio, N. Y., 574, 579. 3 See Con way v. City of St. Louis, 9 Mo. Appeals, 488. See U. S. v. Maurice, 2 Brock. U. S., 96. 4 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. 7 Longacre v. State, 3 Miss., 637. 8 Kelly v. Wimberly, 61 Miss., 548. 9 Diggs v. State, 49 Ala., 311 ; State v. Goss, 69 Me., 22 ; see also Mechem, op. tit., sees. 315-346. CHAPTEH III. QUALIFICATIONS FOB 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. 1 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. 2 1 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. 2 Evansville v. State, 118 Ind., 426, 435 ; People v. Hurlburt, 24 Mich., 44, 93 ; Attorney General v. Detroit Common Council, 58 Mich., 213, 215. See 2.7 -S 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, 1 the attain- ment of a certain age, the possession of good character, 2 nud 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. 8 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 Hobin- xorfs Case 4 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. 5 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. 6 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. 1 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. . commissioners, to take acknowledgments, need not be citizens or electors. * See Mechem, op. cit. t 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. 4 131 Mass., 376, 383. 5 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. 1 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. 2 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. 3 Finally in many cases the possession of one office will disqualify for others. 4 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 5 ; 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. 6 //. Appointed officers in the United States. For appointed officers the qualifications differ con- siderably in the different countries and in many cases 1 See Mechem, op. cit., sec. 81, and Darrow v. People, 8 Col., 417 ; supra, I., p. 320- 9 Constitution, art. v., sec. 2. 3 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. 30 THE LA W OF OFFICERS. are much 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 2 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. 3 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. 4 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 1 Sees. 1756-7. 9 Sec. 8. 3 Civil-Service Rule VII.. I. 4 N. Y. Rule 35 ; Mass. Rule VII., I, which requires it for all positions in the service with the exception of expert positions. 6 Civil-Service Law, sec. 2, third ; Departmental Rule VII., 2. QUALIFICATIONS FOR OFFICE. 3I the commonwealths, 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. 1 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. 8 These vary from a minimum of eighteen for messengers to a maximum of fifty for clerical positions. 3 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. 4 1 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. 8 See sixth report of the New York civil-service commission, 464. See also Mechem, op. cit., sec. 71. 4 U. S. L. 1883, c. 27, sec. 7 ; N. Y. L. 1884, ch. 410 ; Mass. L. 1887, ch. 437 ; cf. Mechem, op. cit. y sec. 84, especially for the decisions in construction and application of these laws. 32 THE LA W 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. 2 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. 3 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. 4 Finally it is to be noticed that the male sex 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, 5 to that of deputy clerk, 6 and to that of master in chancery. 7 Further the rules in the United States national service and in the Massachusetts service seem to presuppose that women will be appointed. 8 1 For this see Mechem, op. at., sees. 77-80. 2 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 10 ; Mass. L. 1884, c. 320, sec. 4. 4 U. S. L. 1883, c. 27, sec. 10 ; N. Y. L. 1883, c. 354, sec. 9. 5 In re Hall, 50 Conn., 131, 137. 6 Jeffries v. Harrington, i7Pac. Rep. (Col.), 505. T 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, 1 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. 9 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. 3 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 1 U. S. Gen. Rule III., 8 ; N. Y. Rule 10 ; Mass. Rule XII. 2 See Massachusetts Rule X., XXII.; Comstock, The Civil Service of the United States, 578 et seq., 582. 3 See Peck v. Rochester, 3 N. Y., Sup., 872, citing Hare, Walks in London, N. V. Ed., II., 272, 273. VOL. II 3 34 THE LA W 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 work 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. 1 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. 2 1 Cf. United States v. Perkins, 116 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. 1 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. 2 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 1 Peoples, rel. Killeen v. Angle, 109 N. Y., 564; People v. Durston, 6th Report of the N. Y. Civ.-Serv. Com., 231. 9 The United States law is to be found in 27 Stats, at Large, 403, c. 27 ; the New York law is L. 1883, c. 354 ; the Massachusetts law is L. 1884, c. 320 ; and the rules and regulations of the commissions may be found in any of the reports of the commissions. QUALIFICATIONS FOR OFFICE. 37 service is at the disposition of the President, who may require such intellectual or other tests for entrance into the service as he deems best. Up to the present time, however, the President has thought best to clas- sify for examination only five branches of the service. These are, first, the " classified departmental service." The name is derived from the fact that the old classifi- cation of 1853, to which allusion has been made, has been extended practically to all subordinate positions at Washington in the eight executive departments, the civil-service commission, the department of labor, and the fish commission. In the department of agriculture are included also the employees of the weather bureau employed elsewhere than at Washington. 1 The second class is the "classified customs service," which embraces those persons simi- larly classified and serving under any collector, naval officer, surveyor, or appraiser in any customs district where the officials are fifty or more in number. In this class are included all appointments to which is attached a salary of $900 or over. 2 The third class is the " classi- fied postal service," which is composed of those officers and employees in the postal service who are appointed under any postmaster of a free-delivery post-office. 3 The fourth class is the "classified railway mail ser- vice," which includes all officers and employees in the railway mail service. 4 The fifth class is the " classified Indian service," which embraces all physicians, school superintendents, and assistant superintendents, school 1 Department Rules I. -IV. ; gth Report of the United States Civil-Service Commission, 64. For an interesting article on the general subject see F. P. Powers on " The Reform of the Federal Service " in Pol. Sci. Qu., vol. III., 260. 2 Customs Rule I. 3 Postal Rule I, sec. 2. 4 Railway Mail Rule I. 38 THE LA W OF OFFICERS. teachers and matrons in the Indian service. 1 It is to be noted that in all these classes the rules exempt from the passage of examinations for appointment to the service one private secretary for each head of an office or bureau where such head is appointed by the President and confirmed by the Senate, custodians of money for whom another is responsible with certain exceptions i. e. those below the grade of assistant cashier or assist- ant teller, disbursing officers who give bonds, deputies and assistants not assigned to ordinary administrative work, chief clerks and clerks of divisions, superintend- ents and assistant superintendents, except in the Indian service, and persons employed exclusively in the secret service. 2 Care is taken in the rules, it will be noticed, to prevent an unduly wide interpretation being put by appointing officers on the scope of these exemptions. The result of the exemption of the chiefs of divisions has been unfortunate. It is said that the position of the chief of division has become rather a precarious one and is filled now with less efficient persons than formerly, and filled in most cases for partisan political reasons. The demand for places has been so great and the number of places to be distributed so small, as a result of the enforcement of the civil-service law and rules, that the positions of chiefs of divisions have been used to reward political services. 3 The main reason why these exemptions have been made is to be found in the desire to secure perfect harmony and confidence between the officers exempted and their 1 Indian Rule I. ; see yth Report of the U. S. Civil-Serv. Com., 79-89 ; gth Ibid.^ 64-70. 2 See Departmental Rule II., sec. 3 ; Customs Rule II., sec. 5 ; Postal Rule II., sec. 5 ; Railway Mail Rule II., sec. 5. 3 See F. P. Powers on the " Reform of the Federal Service " in the Pol. Sci. as to the amount, and the fulfilment of the necessary conditions for obtaining the pension are decided by the administrative courts. 1 In Germany the main principles are the same. The only marked exception is that only ten years of service after the twenty-first year of age are required, when the pensioner would receive fifteen sixtieths of the last salary and one sixtieth for every additional year. But, as in France, the maximum pension obtainable is forty-five sixtieths and the age at which the pension is 1 Laferrire, op. cit., II., 190. 76 THE LA W OF OFFICERS. granted is sixty-five. 1 Pension claims are decided by either the ordinary judicial courts or by the administra- tive courts. In England superannuation allowances are regulated by several statutes, the most important of which is 22 Viet. c. 26 which does not, however, apply to all branches of the service. By this law the pension is acquired, as in Germany, by ten years of service when ten sixtieths of the last salary are given, and rises one sixtieth a year up to a maximum of forty sixtieths. Sixty years of age are required, but provision is made for dispensing with this condition in case the appli- cant brings evidence to the authorities, which shall consist of a medical certificate, that he is permanently incapacitated for the performance of his duties. The pension claim may be enforced by mandamus. 2 A later statute 3 provides that the pension may be capitalized. 1 See Prussian Laws, March 27, 1872 ; March 31, 1882 ; Imperial Law, March 31, 1873 ; Stengel Worterbuch, sub verb. Beamte, Pension. * Todd, op. cit., I., 654, note and authorities cited. 34 and 35 Viet., c. 36. CHAPTER V. THE DUTIES OF OFFICERS. In the following treatment of the duties of officers it is not intended to discuss the various matters of official routine which are in the sphere of competence of all officers, but to refer to those general obligations which every one assumes who enters into the official relation. Before attempting to make any classification of these general obligations, it will be well to allude to a general principle of the law which is of great im- portance. This is that a statute which apparently con- fers merely a power upon an officer may be construed as imposing a duty upon him. For in many cases it is one of the duties of an officer to exercise his powers. Thus a statute which says that an officer may do a cer- tain thing is often construed as meaning that the offi- cer shall do the thing. The rule as to when such a statute will be construed as imposing a duty has been well laid down in the case of Mayor v. Furze, l in which it was held that a statute, conferring a power upon a municipal corporation to make and repair sewers, im- posed upon such corporation the duty of repairing the sewers. Judge Nelson laid down the rule as follows : " Where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the exe- 1 3 Hill, N. Y., 612. 78 THE LA W OF OFFICERS. cution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely and not peremptory." 1 Finally, while in gen- eral a discretionary power may be exercised in such a manner as the officer having the discretion shall see fit, still it is generally the duty of such officer to make some exercise of his discretion. 2 The general obligations which are imposed upon officers are of two kinds. In the first place the law states positively certain things which all officers must or must not do, and provides penalties of a criminal character for disobedience of its provisions. In the second place the very existence of the official relation makes it necessary that an officer shall or shall not do certain things or shall behave towards the public in a certain way. The first class of duties are largely nega- tive in character and the rules of law which contain them form a sort of special criminal law for officers, in that the law imposes criminal punishment upon their violation. The second class of duties are more posi- tive in character and form a sort of official code of ethics, which can be maintained in those countries where an official esprit du corps has not been developed, only by the existence of a strong disciplinary power. Where great reliance has been placed upon the esprit du corps, or where the disciplinary power is large, it will not be necessary to form a very large official crimi- nal code. Where, however, this official esprit du corps is not to be found or where the disciplinary power is slight we find a large official criminal code. 1 Cf. Mechem, op. cit., sec. 593. 'Board of Police v. Grant, 17 Miss., 77; Hightower v. Ooverhaulser, 65 Iowa, 347 ; People v. Auditors, 82 N. Y., 80. THE DUTIES OF OFFICERS. 79 7. Duties with a penal saiiction. 1. Common law crimes of officers. In the first place it may be laid down that officers even more than ordi- nary persons are bound to obey the law. The crimi- nal law of almost every country regards as a crime almost every act of an officer which, if committed by an individual, would be a crime. 1 But further the criminal law of England and the United States declares any act or omission in disobedience of official duty by one who has accepted office, " when it is of public con- cern, to be a crime." * The endeavor is, however, made to distinguish between discretionary and ministerial officers. The general rule is particularly applicable, says Mr. Bishop, "where the thing required to be done is of a ministerial or other like nature, and there is reposed in the officer no discretion." In the case of officers acting with discretion the act to be pun- ished criminally must be wilful and corrupt. 3 But it is to be noted that the law excepts the highest officers of state from this criminal common law liability for mis-f easance or non-feasance in office. 4 In these cases the control of the legislature 5 is regarded as sufficient. In some of the commonwealths this common-law lia- bility is increased by statute so as to make the mere wilful violation of official duty without corrupt motives punishable criminally. 6 . i J See Bishop, Criminal Law, II., sec. 982; Block, Dictionnaire, etc., 981 ; Loening, Deutsches Verwaltungsrecht, 126. 'Bishop, op. V., sec. 459 ; Gneist, Das Englische Verwaltungsrecht, 381. 8 People v. Coon, 15 Wendell, N. Y., 277 ; People v. Norton, 7 Barbpur, N. Y., 477 ; Gneist, op. cit., 381. 4 Bishop, op. cit., I., sec. 462 ; Gneist, op. cit., 383. 5 For which see infra, II., p. 296. 6 So in New York. See People v. Brooks, i Denio, 457, construing a pro- vision of the revised statutes. 80 THE LAW OF OFFICERS. 2. Statutory official crimes. Further in both Eng- land and the United States certain specific acts by cer- tain specific officers or by officers generally are by statute expressly made punishable criminally. Thus the new civil-service laws of the United States have provided that it shall be a crime for any officer to solicit or receive assessments for the payment of party expenses from any one in the service. 1 It would be of course impossible to enumerate these criminal provi- sions imposing punishments upon officers for the doing of illegal acts. All that need be said about the system in the United States and England is that this method of enforcing the performance by officers of their duties has been carried further than in almost any other country, and simply for the reason that the general disciplinary powers of the higher administra- tive officers are rather weaker in the United States and England than elsewhere. 2 In neither France nor Germany are the duties of officers enforced so commonly in this way. In the first place there is no common-law liability for mere mis-feasance or non-feasance in office. 3 It is to be noted also that while in France the highest officers of state are as in the United States riot criminally liable before the ordinary courts, in Germany no such excep- tion is made. 4 The method in both France and Ger- many is to enumerate certain acts which, when done by officers, shall be punished criminally. In many ' U. S. L. , sees. 11-14 ; N. Y. L., sees. 11-14. 9 M. Laferriere in his work on La Juridiction Administrative has called at- tention to this peculiarity of the American law. See I., 101. 3 See Gneist, Das Englische Vertualtungsrecht, 381, note ; Loening, Deutschts Vcrivaltungsrecht, 127. 4 Laferriere, op. cit., I., 660 el seq. ; Bornhak, Preussisches Verivaltungsreckt, I., 144, sec. 24. THE DUTIES OF OFFICERS. Si cases the same acts which are prohibited or com- manded by the law of the United States are pro- hibited or commanded under similar criminal penalties by the law of both France and Germany. Thus it seems to be the general rule everywhere that, where the official oath is prescribed, as it so generally is, it is the duty, sanctioned by a criminal penalty, of the offi- cer to take such oath before he enters upon the per- formance of the duties of the office. The taking of it is not, however, generally regarded as a qualification for the office, but a duty whose violation is to be pun- ished criminally. 1 The same is true of the filing of the official bond or the deposit of security, where that is required. It is to be noticed that the rules on the continent are generally much more strict in this respect, particularly where the officer is in charge of public funds. 2 On the continent the deposit of some valuable security, either money on which the government will pay the officer interest, or the deposit of state stocks, is often required. When this is required, the govern- ment has the rights of a pledgee over the deposit, which is regarded as in the nature of collateral secu- rity. 3 In some cases the fulfilling of these formalities is expressly made something more than a mere duty, and becomes a necessary qualification in order to the filling of the office. In such cases all acts of the officer, performed before the oath is taken or the bond filed or security given, are void and of no effect. But this is rare. 4 In the second place it is very commonly 1 See Mechem, op. cit., sees. 255 et seq. ; Schulze, Deutsches Staatsrecht > I. fc 323 ; Block, Dictionnairc, etc., 976 et seq. a See Mechem, op. cit., sees. 263 et seq. ; Schulze, lot. cit. ; Block,, he. cit* 9 Schulze, loc. cit. ; Block, be. cit. 4 Cf. Block, 20, 42, 357, 977. VOL II 6 82 THE LAW OF OFFICERS. provided that the attempt of an officer to extort from persons doing business with his office larger fees than are provided by law shall be regarded as a crime, viz., the crime of extortion. 1 Finally it is very generally provided that the revealing of state secrets is a crime, and where this is not expressly provided such action might be regarded in some cases as treason. 2 In many countries officers may not be forced in court to testify to anything which is regarded as affecting disadvan- tageously the service of the country. 3 II. Duties of a moral character. The second class of duties to which allusion has been made are more moral than legal in character, are largely based on executive usage, and owe their force almost entirely to the existence in the executive of a disciplinary power. Although they may in some cases be sanctioned by criminal penalties, as in the class of duties just considered, still they will never be well performed unless through the long-continued ex- ercise of a strong disciplinary power there has grown up in the civil service an esprit du carps similar to that which is found in the military service and which for- bids an officer to be guilty of conduct which is unbe- coming an officer and a gentleman. These duties, so far as they may be classified at all, may be classified under the following heads : 1. Obedience to orders. The general duty of obe- dience to the orders of superior officers is to be 1 See for the United States, U. S. Stats, at Large, IV., 118 ; N. Y. Penal Code, sec. 557 ; for France, Penal Code, art. 160. 5 French Penal Code, art. 80. 3 See German Code of Civil Procedure, sec. 341 ; German Code of Criminal Procedure, sec. 53 ; Block, op. cit., 981 ; cf. Greenleaf on Evidence I4th Ed., sees. 250, 251 ; Marbury v. Madison, I Cranch, 137. THE DUTIES OF OFFICERS. 83 found in all hierarchically organized administrative systems, and can in the nature of things exist only in such systems. But the different countries differ much in the responsibility which officers assume in obeying orders. In the United States, England, and in the Imperial service of Germany no officer, even where the service has been hierarchically organized, is re- lieved from responsibility over against third persons for violating the law or the constitution, because he has obeyed the orders of his superior 1 ; and in case he disobeys orders he may be subjected to the exercise of the disciplinary power of his superior where no limit has been placed upon such power. On the continent, however, in some cases an officer who has obeyed orders is relieved from all responsibility which is to be as- sumed by the officer giving the orders. 2 2. Prompt performance of the duties connected with the office. This general duty differs considerably in its content in different states. But in all it means the uninterrupted performance of the duties of the office, except where leave of absence has been granted by the superior as in case of legal vacations and sick- ness. In some states it means also residence at the place where the office is situated. 3 In the United States, however, this would not seem to be universally or even commonly the rule. In some states also it means the devotion of the entire time of the officer to the duties of the office, i. e., the officer is forbidden to engage in any other occupation. 4 In the United "I States and England this does not seem to be generally the rule. Of course there are a great number of offi- 1 Infra, II., p. 166. 3 Stengel, Wortcrbuch, I., 140. 9 Loaning, op. cit., 123. 4 Ibid. 84 THE LAW OF OFFICERS, cere even in these countries where, in the nature of things, the duties of the office will be so absorbing that the officer will have no time to devote to any other occupation. But when this is the case, it is a practical outcome of the position rather than a legal rule. Seldom is it the rule in these countries that an officer has not the right to engage in other occupations if he can in the nature of things do so. Many of the higher officers in the United States who receive large salaries and have very responsible duties to perform are, at the same time that they are holding office, engaged in some other occupation, such, e. tne French penal code, art. 471, sec. 15. 1 1 2 ADMINISTRA TIVE ACTION. order to prevent an abuse of their power, usually subjected to some sort of an administrative control in the exercise of this important power. Generally either the approval of some higher authority is required in order that the ordinances issued by a local authority be valid, or else as in Germany the ordinances must be issued with the concurrence of some one of the numerous popular lay authorities which have been created by the late local government reform. 1 In Eng- land also where the domain of local ordinance has of late been considerably extended, this central admin- istrative approval is being introduced. 2 All ordinances in all countries must, in order that they shall have force, be brought by some legal means to the notice of those persons whom they will affect. 3 The means usually adopted is the same as that provided for statutes, that is, publication of some sort. 2. Special administrative order. In the second place the administration aids in the expression of the will of the state by the issue of special orders of individual and not general application. It has been shown that the legislature of no state is able in all cases to declare what shall be the will of the state in such detail as to preclude the necessity of some special action on the part of the administration. Nor can administrative ordinance, and for the same reasons. Thus no general rule of any kind can declare by name what persons shall pursue those trades which require a license, or what persons or property shall pay direct taxes or the amount in money of their taxes. All that can be done 1 Supra, I., pp. 304, 315. 2 Stipra, I., p. 260. 8 How and Bemis, Municipal Police Ordinances, 352 ; Kneib v. People. 6 Hun, 238; State v. Hoboken, 38 N. J. L., no; Baltimore v. Johnson, 62 Mel., 225 ; Higley v. Bunce, ro Conn., 436 ; Burnett v. Newark, 28 111., 62. EXPRESSION OF THE WILL OF THE STATE. , 13 by genera] rule is to determine what requirements those persons who desire to pursue licensed trades shall fulfil and under what conditions and at what rate taxes shall be levied on persons and property. Of course in the case of license taxes, as e. g. the " special taxes " formerly levied by the United States national government on dealers in tobacco, it is possible to say that each taxpayer, i. e. each dealer in tobacco, shall pay a tax specific in amount. But what such a method may gain in simplicity, it loses in justice ; and when it comes to any such system of taxation as property taxation, the injustice of requiring every property owner to pay the same amount of tax would be so glaring that no people would submit to it. In order that any system of property taxation shall be just, it must be proportional, i. e. the amount of tax which each taxpayer pays must be in proportion to the amount of property which he possesses. If this rule is adopted, as it is almost universally, before the amount of any given taxpayer's tax is ascertained, the amount of the property on which the tax is levied must be determined. The same general principle is true in the case of licensed trades. If any sort of control is to be kept over such trades, and the control of these trades is generally the reason of requiring them to be licensed, the qualifications of the person requesting the license must be ascertained before the license can be granted. Now the conditional rules of law which it is the duty of the administration to apply in all these cases simply state under what conditions licenses shall be granted and property taxed, and what rules shall be followed by the administrative authorities in the assessment of the property subject to taxation; VOL. II 8 ii4 ADM1NISTRA TIVE ACTION. and in order that these conditional rules of law may be applied, i. e. in order that the will of the state in the particular conditions of some given person or piece of property may be expressed completely so that it may be executed, the fact of the existence of the con- ditions referred to in the law must be ascertained. Furthermore the ascertainment of the existence of these conditions is the duty of some administrative officer, whose action in aiding in the expression of the will of the state is absolutely necessary before that will can be executed. The determination reached by such an officer is an act of individual and not of gen- eral application. In this country there is no general technical name for such an act, the name varying with almost each kind of special act done. Thus such a special act is called an order, a precept, a warrant, and a decision. There is a great variety of such special acts Some are in the form of commands to subordinate officers or to individuals to do or to refrain from doing some par- ticular thing, e. g. tax warrants, orders of payment, nuisance removal and sanitary orders ; some are per- missions to individuals to carry on a given business, e. g. licenses and authorizations ; some are prohibitions to carry on a business, e. g. revocation of a license or authorization ; some are acts which create a new legal person, e. g. charters of incorporation ; some consist of contracts made by the administration for the govern- ment considered as a juristic person or " fiscus " ; some are decisions as to the existence of certain facts whose ascertainment is necessary in order that the will of the state may be completely expressed, e. g. assessments, appraisements, classification of articles for duties in the EXPRESSION OF THE WILL OF THE STATE. 115 tax and customs administration ; and finally some are appointments to office or orders to individuals to serve the government in some capacity, e. g. notice to serve as juror or in the military service. In the performance of such acts the administration must follow a certain procedure which is laid down in the law granting it the power to act. The law thus says in the first place that certain acts shall be per- formed only by certain authorities. The authority before acting in any of these cases must assure itself that it is competent, for its acts will be void if it is incompetent. 1 In the second place the content of the act must be in accordance with the law, since every administrative order must find its basis in the statutes or supplementary ordinances of the administration. 2 These statutes may state specifically, as in this coun- try, what the administrative authorities may do, or, as on the continent, they may lay down general norms simply, which the administration must follow in its discretion. In the third place the administrative act must be performed in the way provided for in the law. This is especially true if the method provided by law 1 is intended for the protection of individual rights. 3 Sometimes the method of its performance is laid down in the greatest detail and any failure to follow the manner prescribed will be fatal to the validity of the act. It is so in the case of the assessment of property for the purposes of taxation 4 ; of the destruction by the government of the property right of the individual, 1. 1 Cf. Mechem, op. cit. t sees. 500-564, for the detailed rules of the American lav as to the competence of officers. *Cf. Mechem, op. cit., sec. 501, citing Atty.-Gen. v. Detroit Common Coun T cil 58 Mich., 213, 219. 3 Cf. Cooley, Taxation, 2d Ed., 280 et seq. * Ibid. 1 16 ADMINISTRA TIVE ACTION. as in the case of the exercise of the right of eminent domain l and also in the case of the contracts made by the administration for the government. 2 The reason is that in the one case it is considered extremely import- ant to protect individual property rights, and that in the other the government is so liable to be cheated by its officials that some method must be adopted by means of which the responsibility for every step in the making of the contract may be fixed on some person, and that the contractual powers of governmental authorities must be limited. Further it is often the case that before a decision may be reached by the administration which has an important bearing upon private rights, opportunity must be given to all persons who are interested in the decision to raise any objections which they may desire to make to the pro- posed action ; and, if the authority which is to take the action is a board, that sufficient time must be given for deliberation, and that the decision which is reached finally must be made by a majority vote of all tie members of the board or by a majority of a quorum of the board. Where such formalities are provided it is, it may be said, absolutely necessary to the validity of the action of the administration that they be follow- ed. 8 Thus the United States courts have held that the "due process of law " required by the 14th amend ment to the United States constitution for the taking of private property makes the opportunity to be heard at some stage of the proceedings a necessary formality 1 Dillon, op. cit., II., 706 ; Mechem, op. cit., 581. 'Dillon, cp. cit., I., 520, 543, and cases cited. The only possible exception to this rule is in the case of quasi contracts, Ibid., 536. ' Cf. Cooley, op. cit., 287 ; Mechem, op, cit., sees. 271-281. EXPRESSION OF THE WILL OF THE STATE. 117 iii property tax proceedings. 1 Finally the order like the ordinance must be brought by some legal means to the knowledge of the person or persons affected by it. This is particularly true of assessments for the purpose of taxation. As a general thing this is to be done in writing or by publication, but in not a few cases a mere verbal order is sufficient, as e. g. in the case of an order given by a constable or peace officer to a disorderly assemblage or crowd to disperse. Thus it is that the administration discharges a most important function in expressing in detail the will of the state, so far as that will has not been expressed completely in the statutes by the legislature. In the discharge of this function of expressing the will of the state the administration must necessarily be given a wide discretion in determining the existence of the conditions which the law requires in order that the administration shall act ; and in the exercise of this dis- cretion the administration must also necessarily come into frequent conflict with individuals. This is espe- cially true of the whole domain of what is called police administration, where the administration endeavors to protect the individual from the happening of harm through the limitation of the right of individual action. It is seen thus that the action of the administration does not consist in mere ministerial action, in execution, that it must perforce exercise great discretion in ex- pressing the will of the state, and that in the exercise of this discretion it has an enormous influence not only upon the welfare but also upon the sphere of free action of almost every individual in the state. But while this expression of the will of the state is one of 'See Santa Clara Co. v. R. R. Co., 18 Fed. Rep., 385. u8 ADMINISTRATIVE ACTION. - K& the functions of the administration and has an import- ant effect upon the character of its action, still the duty par excellence of the administration is not the expres- sion but the execution of the will of the state. For whether that will has been expressed fully by the legislature or partly by it and partly by the adminis- tration it is in almost every case the administration upon which devolves the execution of that will when once completely expressed. CHAPTER III. EXECUTION OF THE WILL OF THE STATE. /. Means of execution, The will of the state, whether expressed in statute, ordinance, or individual act not of general application, always contains either expressly or impliedly the com- mand that it shall be executed. This mere command may in many cases be sufficient and in all cases would be sufficient in a perfectly well-ordered community ; since individuals would, if they were perfectly patriotic and if the expressed will of the state were always just and in accordance with the law, do what they were commanded to do. But in the communities with which the administration has to deal, for some reason or other individuals will in many cases refuse to do what they are commanded to do. Some means must therefore be devised to ensure their obedience to ensure that the will of the state be executed. The means adopted are various in kind. 1. Imposition of penalties. On account of the lia- bility of the individual to refuse to obey the command of the law, such refusal is made punishable. This is the most common means of executing the will of the state for the reason, as has been indicated, of its ex- treme simplicity and that it leaves little to the discre- 119 1 20 ADMINISTRA TIVE ACTION. tion of the administration. For, as a general rule, the penalties are to be found in the law as passed by the legislature l ; and such penalties are to be enforced ul- timately by the ordinary courts, which are independent of the administration and act in accordance with the usual rules of criminal procedure. In this way the individual is amply protected against arbitrary action on the part of the administration. In Germany quite frequently and in some cases in the United States, however, the administration itself may proceed to im- pose the penalty without resort to the courts, and the individual against whom the proceedings are taken has the right to appeal to some judicial body against the action of the administration. * 2. Enforced performance of the act ordered. Some- times the execution of the will of the state will not be effected by the decree of a penalty either by the courts or by the administration itself. In many cases the will of the state can be executed only by the perform- ance by the individual of a definite thing. This defi- nite thing may often consist in the payment of a sum of money ; or it may be absolutely necessary that the individual with whom the administration comes in conflict, actually himself do something which does not consist in the payment of a sum of money. a. Execution of the law by the payment of a sum of money. A great many of the orders of the adminis- tration, may be executed by ensuring the payment of a sum of money. Thus the orders of the administration to individuals to pay taxes and the like will naturally 1 There are a few cases, especially in Germany, in which the administration has the right of sanctioning its own ordinances and orders. 2 Loening, op. '/., 248, note I ; See Cooley on Taxation, 2d Ed., 457 ; Parker and Worthington, Public ff faith and Safety, 103. EXECUTION OF THE WILL OF THE STATE. 121 be executed by the payment of a sum of money and be executed also naturally only in this way. Further it may be possible that the act demanded of the indi- vidual by the administration can be performed by the administration itself, whose expenses in the doing of the act which ought to have been done by the indi- vidual at his own expense, like taxes, become an obli- gation of the person disobeying its order. For example if the administration orders a landlord to make repairs which are necessary from a sanitary point of view, and he refuses, it is perfectly easy for the administration to step in and do the work itself and thus found an obli- gation which is binding upon the individual to repay it the expenses which it has been obliged to incur in order to do the work. l Finally a similar obligation on the part of the individual may arise from the fact that a penalty has been incurred in the nature of a fine for disobedience of the law or the orders of the admin- istration itself which, as has been shown, has the right in many cases to impose fines. 2 The methods adopted to ensure the payment of an obligation which has arisen in this way are usually the same as those adopted to ensure the payment of judgments of courts. That is, the amount due is either made a lien upon the real property in relation to which the obligation was formed and may be collected by its sale, or it is to be col- lected by the sale of the personal property of the in- dividual from whom the obligation is due. 3 b. Arrest. But the will of the state cannot always be executed by the payment of a sum of money. In many cases it can be executed only by the perform- 1 See N. Y. Law 1882, c. 410, sees. 630, 635. * Ibid., sec. 633. :: Ibid., sees. 630, 85, 122 ADMINISTRATIVE ACTION. ance of a given action or the prevention of a given action. Certain things must be done or certain things must not be done in order that the will of the state may be executed. In order in these cases to compel the recalcitrant individual to act or to refrain from action he may be arrested and imprisoned. The power of arrest is found in two distinct cases in all countries. Often simple disobedience of the expressed will of the state is punished by short terms of imprisonment when the administration has the right to arrest and imprison the disobedient individual. 1 The other case in which resort is had to arrest and imprisonment, is where the individual refuses to do a thing which he has been commanded by the administration to do. This seems to be quite common in Germany, and is not unknown in the United States. 2 In such case the arrest and im- prisonment are quite separate and apart from the arrest and imprisonment which the individual may have made himself liable to by his original disobedience of the law. Simple refusal to obey a competent order of the administration may be punishable by fine and imprisonment. c. Application of physical force. Finally the ad* ministration has the right to apply physical force if one of its competent orders cannot be enforced in any other way. The force may be applied to the person or to some object, and may often consist in depriving a person of some article, in shutting up some location, or in putting an end to some occupation, as e. g. in the 1 Ibid., sec. 85 ; Commonwealth v. Byrne, 20 Grattan, 165, 198, which holds that arrest decreed in accordance with law by an administrative officer in the case of non-payment of taxes is due process of law and constitutional. 2 Stengel, Worterbuch, etc., II., 800, 801 ; Cooley, Taxation, 2nd Ed., 437; Burroughs, Taxation, 150. EXECUTION OF THE WILL OF THE STA TE. 123 shutting up of an illicit still and the destruction or seizure of the machinery found therein. , : Jn.-aljl these cases, if resistance is offered to the ad- ministration or an administrative officer acting within his competence, the person offering such resistance may , be arrested and punished, and ultimately the entire .force of the government of the country may be called upon to overcome such resistance. Thus in the United States the mayor of a city may call out the militia- ; the sheriff in the county may also call out the mi,litia or the posse comitatus ; the governor may often ; declare a county in a state of insurrection, 2 and on the,. application of the governor or of his own mo- tion the President of the United States may call out the fprces of the nation. 3 Thus every order of the administration has ultimately back of it the entire physical force of the government. But before any of the orders of the administration may be enforced, and before force may actually be applied, it is often neces- sary that certain formalities be complied with, which differ considerably in the different countries. This brings us to the methods of executing the will of the state after it has once been expressed completely. II. Methods of execution. -, In general there are two methods of executing the will of the state. Either the administration may pro- ceed of its own motion to the execution of its orders by the use of the proper means, subject to the control of the courts, which may, on the instance of the indi vidual , affected by its action, interfere to protect his 1 See e. g. N. Y. L. 1882, c. 410, sec. 269. 2 Supra, I., p. 75. * U. S. Rev. Stats, sees. 5297, 5298. 124 ADMINISTRATIVE ACTION. rights ; or it is necessary for the administration to apply to the courts in the first instance to enforce its orders. The latter method is the usual one in the Unite.d States and England, although there are cases even in those countries in which the administration may proceed without having recourse to any other authority ; while the former method seems to be the rule upon the continent. 1. Judicial process. The reason of the adoption of the general rule in England and this country that the administration must apply to the courts to enforce its orders is largely historical. It will be remembered that at one time the justices of the peace were the most important administrative officers in the various localities both in England and in the United States. Acting singly or in pairs or in their courts of petty and special or quarter sessions the justices had a long series of really administrative duties to perform which were almost inextricably mixed up with their really judicial duties, i. e. with their decision of criminal cases and cases involving purely private relations. 1 It is true that all the acts of the justices were clothed in about the same formula 2 ; but these may be put into three pretty distinct classes. The first class was purely judicial and took on the form of convictions or judg- ments made after previous hearing. The second was to be found in the orders which they issued either of their own motion or upon the proposition of an inferior officer such as a constable or overseer of the poor, where no previous hearing was given to parties who might be interested. Thus in their special sessions the 1 Supra, I., p. 239. 5 Gneist, Das Englische Ver-waltungsrecht, 1884, 391, 392. EXECUTION OF THE WILL OF THE STATE, 125 justices appointed parish officers and made up the jury list. In their courts of quarter sessions many of the acts performed in the exercise of their original jurisdic- tion, such as those relating to the financial administra- tion of the county or the passage of by-laws, were per- formed of their own motion and belonged to this class of acts which were really administrative in character. In the third class may be placed those acts consisting not of decisions as to private relations or of convictions but as in the second class rather of orders in adminis- trative matters where, however, before the order was issued a hearing was given to parties interested. Some of the acts of this class were performed by a single justice but not many; some were performed by two justices acting together, such e. g. as orders of removal and orders in bastardy in the poor-law administration and orders to abate nuisances in the sanitary adminis- tration ; some were performed by the special sessions, as e. g. the decisions of differences arising between the overseers of the poor and the taxpayers in regard to tax assessments, the grant of licenses to ale-houses, the taking away of licenses, the decision of difficulties with regard to the building of roads, etc., etc. In all these cases the objections of interested persons were heard before the decision of the justices was made. 1 These acts were administrative in character but some- what judicial in form, since they were performed only after the holding of some sort of a trial. In the course of time a separation of the judicial and administrative functions was made in this country, the purely administrative powers going to new officers such as the supervisors, county commissioners, and the 1 Cf. Ibid., 266, 276-301 ; 381-4. 126 ADMINISTRATIVE ACTION. like, the purely judicial powers and most of the powers whose exercise resulted in acts judicial in form going to the justices. That is the justices retained the power of deciding on all convictions, of giving judgments in civil cases of a private legal character, and of issuing almost all the orders which might be executed without further action by any authority. The same powers possessed by the justices after this separation of judicial and administrative functions have since been conferred on other courts, such as the county and similar courts, which in this country have taken in the judicial organ- ization the position formerly occupied by the English courts of quarter and special sessions. The result of this curious evolution of the justice of the peace from a purely or almost purely administrative officer into an almost purely judicial officer is that, since the justice or his successors have in the course of this development largely retained the power of ordering given things to be done by individuals, the administration seldom has the right to proceed to execute its orders without hav- ing first made application to a court of some sort for the power to execute the order. Of course it is not always necessary for the adminis- tration in England and the United States to apply to the courts in order to enforce its orders. In certain cases where immediate action is absolutely necessary in order to avoid disastrous results, as in the case of the abatement of a nuisance prejudicial to the public health and in the case of the payment of taxes, 1 the administration may proceed directly to enforce its orders, and in case of resistance to the execution of the 1 Cf. N. Y. L. 1882, c. 410, sees. 926-929 ; N. Y. L. 1885, c. 270, sec. 38 ; Parker and Worthington, op. '/., ch. xii. EXECUTION OF THE WILL OF THE STATE. 127 law may, without application to the courts, apply force to overcome such resistance; and if any indi- vidual feels aggrieved by the action of the adminis- tration he may appeal to the courts and get what satisfaction he can. 1 2. Administrative execution. While application to the courts to enforce the orders of the administration is generally the rule in England and the United States, and may thus be called the English method of execu- ting the will of the state, the direct execution of its orders by the administration is the rule on the conti- nent. The more complete separation of administration from justice on the continent, the more important r61e assigned to the administration to play there, the greater confidence the people have in its justice, or their greater indifference to the possession by the adminis- tration of large powers, has caused them to feel that it is a matter of little consequence what authority has the power of directly executing the law. What little deprivation of individual rights they may suffer by the grant of such powers to the administration they be- lieve is compensated for by the greater efficiency of the administration resulting from its greater powers. Where this method of direct execution of its orders by the administration has been adopted, the administra- tion often has the right to threaten persons disobeying its orders with a penalty which it itself may enforce, and which is distinct from the penalty for the original disobedience. It may directly proceed to arrest per- sons and seize property, shut up buildings and destroy objects, and prevent given individuals from following - ! Such summary proceedings in the case of collection of taxes are constitu- tional. McMillan v. Anderson, 95 U. S., 37. : 128 ADMINISTRATIVE ACTION certain occupations without having resort to any judi- cial authority. This method of executing the will of the state by the direct act of the administration itself may be called, in analogy with the action of the courts in enforcing their decrees, execution, and in dis- tinction from their action, administrative execution. Iii all countries, as has been indicated, this is the method adopted to enforce the payment of direct taxes. The administration steps in and of its own ac- cord, without the intervention of any other authority, seizes the property of the delinquent taxpayer. 1 This it is then allowed to sell, subject often to the owner's right of redemption. After deducting from the pro- ceeds of the sale the amount due the government, it must either return the residue, if any, to the owner if he can be found or if he cannot be found, must keep such residue in trust for him. This is often the case iu the United States where ordinarily administrative execution is rare. 8 This same method of administra- tive execution is also adopted in some countries for the enforcement of most money payments due the government, 3 but as a usual thing this is not the case in the United States 4 except in the case of the col- lection of taxes where the administration is regarded as peculiarly representative of the sovereign. In the other cases of sums of money due the govern- ment, either because the administration is not regarded ' In Germany, however, landed property can be seized only as a result of the action of a court. Stengel, DeutscJies Verwallungsrechl, 195. * See e. g. N. Y. L. 1882, c. 410, sees. 926-954. 8 So in France, Ducrocq, op. at., II., 263 el seq. \ Germany, Civ. Proz. Ord., sees. 708-768. 4 But see Murray's Lessee v. Hoboken Land and Improvement Co., 18 How., U. S., 272 which holds that such a method is due process of law even in the case of debts due the government. EXECUTION OF THE WILL OF THE STATE, 129 as so representative of the sovereign or because it is felt to be unsafe to give the administration such wide powers, the law requires that the administration shall go before a court of competent jurisdiction, present its case there, and trust to the action of the court to execute the will of the state. In the case of a contract the government is regarded as simply a juristic person having no greater rights than ordinary persons except perhaps that it may be given the position of a pre- ferred creditor ; in the case of the enforcement of a penalty the administration is regarded as simply the prosecutor, and the actual execution of the will of the state is left to the courts, which may thus, if they see fit, greatly retard the action of the administration and exercise a wide control over it VOLD 9 CHAPTER IV. THE SOCIALISTIC ACTION OF THE ADMINISTRATION. The foregoing chapter presupposes some positive action on the part of the administration in the direc- tion of limiting the sphere of individual liberty ; action from which results a relation of antagonism between the administration and the individual, who must, how- ever, ultimately submit to its demands. The forms and methods of action resulting from this relation of antagonism are commands and the application of force to overcome resistance. In these cases of the expression or execution of the will of the state the administration has been considered as the representative of the sover- eign power, and as entering into what may be called legal relations with individuals. The powers of the administration and the forms and methods of its action in the exercise of its powers are not, however, exhausted in the enumeration which has already been given ; for the function of administration is the realization of the ends of the state. The administration is to assist in widening the circle of human enjoyment and en- larging the scope of human opportunity as well as in limiting the sphere of individual liberty ; is to aid man in his conflict with nature as well as order his relations with his fellow-man. 1 It must offer to the inhabitants 1 Cf. Stengel, Deutsches Verwaltungsrecht, 172. 130 SOCIALISTIC ACTION. 131 of the state means of communication, must bridge rivers, construct highways, and carry the mails; it must protect the coast against the action of the sea ; must keep the records of legal transactions, such as deeds and mortgages, on whose correctness and accu- racy depends the validity of titles to property ; it must issue patents and charters, by which new rights are created ; the administration must in fact do everything which individuals cannot accomplish or cannot accom- plish advantageously. In all of these cases it is seldom that the administration acts as the representative of the sovereign ; seldom that it enters into hostile or antagonistic relations with individuals, for the purpose of its action is not here as in the class of cases enumerated in the preceding chapters to circumscribe the liberty of action of the individual, to make him yield something in order to further the general well- being ; its purpose is on the contrary to offer directly to individuals some particular advantage by which they may profit. While in all cases the action of the ad- ministration is, or should be, intended to promote the public welfare, it accomplishes this end in the two classes of cases by totally different means. In the one it acts by repression, in the other by the direct tender of some service. The natural result is that the methods and forms of its action will be quite different in the different cases. In the one class, the form of its action is a command and its enforcement, in the other it is a rendering of a positive service to the individual upon his initiation and his compliance with the proper pre- liminaries. Thus the individual need only properly direct and stamp mail matter and tender it to the ad- ministration and the administration will transmit it to 1 32 ADMINISTRA TIVE ACTION. the proper address ; he need only present a deed or a mortgage properly acknowledged, and on tender of the fee fixed by law the administration will record it ; he need only apply for a patent for a new invention which will be given to him if he has complied with the con- ditions laid down in the law. The form which the action of the administration will take in these cases will be either that of contract which is usually, how- ever, governed by peculiar rules, 1 or of a certificate or authentication which, if official in character, will be taken judicial notice of by the courts. Further in order to perform many of these duties, as indeed to perform any other of its multifarious duties, the administration must have an acquaintance with the relations into which it enters. Sometimes the necessary acquaintance is obtained by simple observation. Simple observation is all that is necessary to determine the existence of a nuisance, the necessity of laying out a new highway, or of the construction of a bridge. But at other and most times more complicated conditions must be examined, the effect of laws and institutions must be discovered, a vast amount of information in regard to social phenomena must be obtained before the administration or even the government as a whole can wisely proceed to act. In many cases physical laws and natural forces must also be studied and in- formation as to their workings must be collected. For though the government comes mainly into contact with human beings, it regulates their relations often only i ti- the hope of bringing the individual into harmony with his environment ; in other words it forces him to obey natural forces and laws. The government directs the ' Supra, I., p. 10. SOCIALISTIC ACTION. 133 mode of human life and limits the freedom of individ- ual action, but it does this only with the desire of improving the moral and sanitary conditions of th issuing commands to them and citing them to appear before the parliaments to answer complaints made against them. 2 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 1 Such e. g. was fcheir action as to the edict abolishing the corvee or enforced labor of the peasants on public works. 2 Aucoc, op. '/., I., 17, 52. FRENCH ADMINISTRA TIVE JURISDICTION, 219 man and of the citizen." 1 The administrative authori- ties^ were made completely independent of the judiciary, 2 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. 3 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 to 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- 1 Art. xvi. 8 L., Dec. 22, 1789-Jan. 8, 1790, sec. iii., art. 7. 3 L., Aug. 16-24, ^Q . title " art - X 5- 4 Instructions to the law last cited, Lois et Actesdu Gouvernement, I., 98. 220 CONTROL OVER THE ADMINISTRATION, tion. 1 Care \vassoon taken to give the power to decide the most important of these appeals to authorities not immediately connected with the active administration. 2 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 o; 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 1 See e. g. L., Sept. 7-11, 1790, which provided for appeals in tax matters, and L., Dec. 14, 1789, arts. 55 and 60, cited in Aucoc, I., 399, 400. *L. 2%pluvi6se an VIII (1800). art. 14. FRENCH ADMINISTRATIVE JURISDICTION. 221 instances where the decisions of the ordinary judicial courts and those of the administrative courts relative to private lights are capable of comparison, that the decisions of the administrative courts have been more favorable to private rights than those of the judicial courts. The tendency of the ordinary private law judge when confronted with an administrative ques- tion is to apply to it the rules of private law, which often lead him into errors and result in too great technicality. 2. Need of an inexpensive and infernal procedure. A further reason for the retention of the special administrative courts is the desirability of an inexpen- sive and informal procedure such as is not to be found in the ordinary procedure of the civil counts. In case of a conflict between the administration and the indi- vidual the contestants are not on a par as in an ordi- nary suit is usually the case ; and it is desirable, as far as may be, to encourage individuals to bring suits against the officers of the administration in order to prevent an over-zealoushess on the part of the admin- istration to the detriment of private rights. 1 ///. The general characteristics of the French system. 1. Administrative courts, courts of enumerated juris* diction. The general rule is the same now that it was at the time of the Constituent Assembly, viz., that the decision of all conflicts between the administration and individuals, and the interpretation of all administrative acts are reserved to the active administration. , The ordinary courts are forbidden to interfere in any way with administrative action, even to interpret an 1 Cf. Aucoc, I., 401-8. 222 CONTROL OVER THE ADMINISTRATION. administrative act of individual application which conies before them collaterally. This can be done only by the administration. 1 There are, however, excep- tions to this rule. Thus the ordinary courts have as a result of special statutory provision the entire control of the matter of expropriation or the exercise of the right of eminent domain. 2 Again arrests made by the administration are under the control of the ordinary courts as a result of the penal code. 3 On the other hand, as a result of the grant to the ordinary judicial courts of the application of the pri- vate and the criminal law, the general rule is that the courts have control of all contracts made by the ad- ministration and the entire police jurisdiction. This general rule Js subject to several exceptions. Thus all contracts made by the central or local administration relative to public works and to public lands and all contracts of the central administration relative to the public domain and for material or supplies of personal property are put into the jurisdiction of the adminis- trative courts. Further certain of the administrative courts have a certain amount of police jurisdiction, but not much. 4 But the usual rule is that the administra- tion has the jurisdiction of all administrative acts and of administrative acts alone. In certain cases, how- ever, which have been growing more and more numer- ous during this century, the statute law states specifi- cally that the decision of complaints against certain classes of administrative acts shall be made not by the active administration, but by bodies called administra- tive courts, which are in large part unconnected with 1 Aucoc, I., 424. 3 L., May 3, 1841. 3 Arts. 119 and 120. 4 Simonet, Droit Public Administratif, 157, and laws cited. FRENCH ADMINISTRA TIVE JURISDICTION. 223 it. Each of these bodies has to decide in the particular cases provided in the statutes. The result is that the administrative courts are courts of enumerated jurisdic- tion. The particular grants of jurisdiction are, how- ever, so numerous that, though in theory courts of enumerated jurisdiction, the important administrative courts are practically courts of general jurisdiction. This is true of the Council of State and the councils of the prefecture. 2. Judges not independent of the administration. The judges of the administrative courts do not possess the same independent tenure that is possessed by the judges of the ordinary courts. They are all appointed and may at any time be removed by the President of the republic. This is undoubtedly a great theoretical objection to the French system, 1 but in practice their weakness of tenure over against the administration does not ,appear to have had any appreciable influence on their decisions. As has been shown, where it is possible to compare the decisions of these courts with those of the ordinary courts it is found that the de- cisions of the administrative courts have as a general thing shown more regard and consideration for private rights than ,those of the ordinary courts, whose judges have a fi^ed tenure of office. The reason why this precarious tenure has been retained in the French system, notwithstanding the advances that have been made in other directions during this century in the development of these administrative courts, is that it is,, believed necessary, in order that the administrative^ judges may have the necessary knowledge of adminis- trative affairs, that they be continually engaged in 1 Cf. Dicey, The Law of the Constitution, 3d Ed., 312. 224 CONTROL OVER THE ADMINISTRATION. active administrative work. Therefore the administra- tive courts are at the same time administrative councils, which are being continually called upon to advise the administration ; and it is felt in a country like France, where the belief in the necessity of administrative cen- tralization is so strong, that it would be unwise to relax the usual administrative control over the members of the administrative councils. This argument, however, seems to have really little weight. Of course the desirability of the possession by the administrative judges of special administrative knowledge cannot be gainsaid. The success of the English courts of quarter sessions is too great to permit the proposition to be questioned. But to attain this result it does not seem necessary that administrative judges shall be dependent upon the administration. The tenure of the English justices of the peace, though in theory not protected against the administration, is in reality protected, inasmuch as any ministry which should attempt to dismiss them from office for reasons other than absolute corruption would have to assume a most grave responsibility before Parliament. 1 Again, as will be shown later, the tenure of the judges of the administrative courts which have been lately formed in Prussia is made the same, as far as its independence is concerned, as that of the ordi- nary judges. It is possible in other ways to ensure that the administrative judges will have the necessary special knowledge of administrative affairs. 3. Judges professional in character. The character of all the judges of the most important administrative courts is professional. That is, they all must have had a certain theoretical or practical administrative 1 Supra, II., p. 197. FRENCH ADMINISTRA TIVE JURISDICTION. 225 training, must be learned in the law ; they receive a large salary also, and are not permitted to have any other occupation or profession. In most of the im- portant administrative courts there is in addition to the judges a representative of the government. Such officer differs very much from an ordinary advocate. He is rather an amicus curice whose duty is to advise the court on difficult points, and to endeavor as far as possible to see that justice and right are done even to the detriment of the particular claim which the gov- ernment may be making at the time. 1 This is not simply his theoretical position. Nothing is more com- mon than to see such officer actually advocating the views which have been set forth by the individual who is protesting against some particular administrative act. 4. Great freedom of appeal. In the administrative courts there is an almost unlimited power of appealing from the decisions of the lower courts to the higher court. On these appeals questions both of law and fact may be reviewed. There are very few of the courts which decide at the same time in first and last instance on questions of fact and none but the supreme court,' the Council of State, which so decides on questions of law. This power of appeal is not limited by the amount in question. It is possible to go up to the Council of State in order to claim a reduction of a few centimes on a personal property tax for example. The French have felt this is necessary in order to check the too great zeal of subordinate officers. For when the contest is between the government and the indi- vidual the consequence of the commission of injustice cannot be measured by the amount at stake. The 1 Aucoc, op. ci(., I , 415. VOL. 1115 226 CONTROL OVER THE ADMINISTRATION. power of appeal has further been increased by the provision that in certain matters of especial importance costs are done away with altogether or are very largely reduced in amount, while the procedure has purposely been made very simple. It is to a large extent in writing, and is of a somewhat inquisitorial character. That is, the judges are not confined in their considera- tion of the case to what is laid before them, but may * take such measures as they see fit to get at the -truth. To a very large extent, the necessary action of a plaintiff in a suit in an administrative court consists simply in laying his complaint before the court which then attends to the rest. 1 1 1 IV. Nature of the remedies. 1. The general jurisdiction of the administrative courts. The general jurisdiction of the administrative courts, the jurisdiction which all the courts possess over those matters which have been assigned to them by law, what the French call the contentieux adminis- tratif, has been worked out by the administrative courts themselves in their decisions/ although the actual administrative matters over which they have this jurisdiction are designated in the statutes. This general jurisdiction consists in deciding complaints made by individuals against those non-political acts of the administrative authorities of special and not general application, whose immediate effect is to violate the rights of individuals acquired by virtue of some statute, ordinance, or a contract. Almost every word of this definition is essential. In the first place it is to be noticed that the act must 1 Cf. Aucoc, op. dt., I., 411-423. FRENCH ADMINISTRATIVE JURISDICTION. 227 be non-political in character in order that the adminis- trative courts may hear complaints against it. What is a political act it is difficult to say. The legislature has not defined it. In order therefore to determine what is such a political act we must have recourse to the decisions of the administrative courts themselves. These have held that acts are political in character which are performed by the President in carrying on the relations of the executive with the other govern- mental authorities and which relate to the carrying on of war, of diplomatic relations, and to domestic peace and tranquillity. 1 The only acts of this class which need special notice are those which relate to the da mestic peace and tranquillity. The tendency of the decisions of the administrative courts has, it must be admitted, been to relieve the administration from all judicial control for acts which have been extremely arbitrary in character and very restrictive of private rights, where by such acts the administration was attempting to ensure dpmestic peace and tranquillity. The decisions have held that in time of public disturb- ance measures taken by the administration to prevent the publication of a journal which the administration alleged was inflaming the passions of the people, measures which resulted in the complete destruction of the plant of the journal, were of a political character and were not subject to the control of the adminis- trative courts. 2 The tendency of these decisions is not regarded favorably by several of the French writers. 3 In the second place in order to give the administra- 1 Laferriere, La Juridiction Administrative, II., 32. * Con. d'tat, Arrtts of Feb. 26, 1857 ; May 9, 1867, cited in Ducrocq, op. fit., sec. 64 ; cf. Aucoc, I., 441 et seq. *Cf. Simonet, Droit Public, etc., 155. 228 CONTROL OVER THE ADMINISTRATION. tive courts jurisdiction the act complained of must be of special and individual and not of general applica- tion, i. e. it cannot be an ordinance. 1 There is a special remedy against ordinances which will be alluded to later. In the third place the act must have for its imme- diate, not its indirect and ultimate, effect, the violation of a right. Thus a prefect authorizes^ a commune to sell or close up a road which he and it regard as use- less. A private individual may think that the par- ticular road belonged to him ; he cannot on that account, however, appeal to the administrative courts against the prefect's decision. For his right is not violated until the commune actually attempts to sell the road. Then and only then may he appeal. 2 This it will be noticed is similar to the English distinction, is the matter of appeals to the court of quarter sessions between immediate and consequential grievances. Further it must be noticed in this. connection that the act must actually violate a right and must not be simply contrary to the interest of the individual com- plaining. This distinction between the violation of a right and the failure to consider an interest may be made plain by an example. The French law forbids any citizen to change his name without the authoriza- tion of the President. No person is considered as having a right to change his name, and in refusing to authorize a change of name the President violates no right. Therefore no one can appeal from the decision of the President, refusing the necessary authorization, 1 Ducrocq, I., sec. 247. 2 Arrft du Con. d'tat,]vn. 24, 1851 ; Affaire Dtnizet, cited in Aucoc, I., 432. FRENCH ADMINISTRATIVE JURISDICTION. 229 to the administrative courts. But in case such a deci- sion of the President does authorize a change of name, the right of a third person may be violated, since a family name is considered by the French law to be in the nature of a property right. Therefore an appeal is allowed to an interested third person from the deci- sion of the President permitting an individual to assume the family name of the interested third party. 1 What is a righ^ and what is an interest have been worked out in tjie decisions of the administrative courts. While this is the general rule exceptions have been made in particular cases by statute, but they are not important. * i/ 2. Appeal to the Council of State for excess of powers. A second remedy is offered in the power granted to any individual to appeal to the Council of State against any act, not of a political character, of any adminis- trative authority, on the ground that such authority has, in the performance of the act complained of, ex- ceeded its powers or violated the law. This appeal is permitted even if the act complained of is of general application and even if it does not violate a right. This remedy, like the contentieux administratif, was worked out by the administrative courts, but has been given recently the sanction of statute, the law of May 24, 1872, providing 2 that the " Council of State decides finally on all demands to annul for excess of powers acts of administrative authorities." In what now does an excess of powers consist ? When do we find a vio- lation of the law ? The decisions of the Council of State hold that there is an excess of powers : when an 1 Ducrocq, op. cit., I., 234, citing Arrfr du Con. d'Etat, Aug. 16, 1862. Art. 9. 23 CONTROL OVER THE ADMINISTRATION. administrative authority encroaches upon the compe- tence of some other authority, whether that other authority be the legislative authority, a judicial au- thority, or another administrative authority 1 ; when an administrative authority does not follow the for- malities laid down in the law as necessary 2 ; and when an administrative authority, even when acting within its competence and following the necessary formalities, uses its discretionary power for purposes other than those for which the power was granted. 3 The follow- ing case will give a good example of this last kind of excess of powers. It is almost as famous in the French law as the ship-money case of John Hampden is in the English law, or the case of the miller of Sans-Souci is in the law of Prussia. The French law gives to the prefect the right to regulate the movement of carriages about railway stations in the interest of public order, i. e. the police power. In order to obtain regular com- munications between the railway station at Fontaine- bleau and the city itself, the railway company entered into negotiations with an owner of carriages to meet all trains. This man demanded a monopoly. At the request of the company the prefect issued an ordinance which forbade all carriages but those of the contractor to enter the court of the railway station. The pro- prietor of a hotel in Fontainebleau, who had been in the habit of sending an omnibus to meet travellers at the station, sent an omnibus as before and was prose- cuted for it. He appealed to the Council of State, on the ground that the prefect had made use of the police power to grant a monopoly, and the Council of State annulled the ordinance. This case is interesting for 1 For example see Aucoc, op. cit., I., 466. * Ibid. 8 Ibid., 467. FRENCH ADMINISTRATIVE JURISDICTION. 231 .several reasons. First it gives a good idea of what the French call a detournement du pouvoir, in the second place it shows that the remedy of appeal for excess of powers may be made use of against an act of general application, i. e. an ordinance. In the third place it illustrates the great regard which the administrative courts have for private rights a regard which is greatAfchan that of the ordinary judicial courts. For the ordinance of the prefect in question was a penal ordinance, and therefore, in accordance with the gen- eral principles of the French law, was to be enforced by prosecution before the police courts, from which appeal might be taken to the highest of the ordinary courts. Now before appealing to the Council of State the h There are two general rules governing the right of appeal to the administrative courts against the special acts of the administration. ' In the first place only those acts may be appealed from whose tendency is to violate private rights. As a result, however, of the enumerated jurisdiction of the administrative courts a provision of law must give the right to appeal even when a private right is violated. The special cases enumerated in the statutes are so numerous that almost every individual right, subject to the limitations mentioned above, is protected by an appeal to the administrative courts. s The only excep- . tion to the rule that the existence of a special provision of law is necessary in order that recourse to the ad- ministrative courts may be had is in the case of the acts of the administration relating to what are called police matters, i. e. resulting from the exercise of the police power. ^Here the law distinctly says that the indi- vidual may appeal from the police orders of the administration on the ground that his rights are vio- lated thereby, because the police authorities have not applied the law or have made a wrongful application of it on the ground that the conditions are not present, which by the law are necessary in order that the police authorities may act. 2 ^ As these police orders constitute by far the larger number of the acts of the adminis- tration in the administration of internal affairs, and as this rule permits the administrative courts to review the decisions of the administration not only on ques- 1 Ibid. 2 Ibid., 491. 250 CONTROL OVER THE ADMINISTRATION. tions of law but also on questions of fact, i. -e. they are to determine whether the conditions made necessary by law for the action of the police authorities are present, it will be noticed that the control of the administrative courts over the administration of internal affairs is quite an extended one. -,' Further, not only may indi- vidual persons appeal to the administrative courts, but also public corporations may appeal to these courts against the decisions of the supervisory authorities made in the exercise of the central administrative con* trol over public corporations and their officers. Thus if the supervisory authority should insert an appro- priation in the budget of a city for the payment of an expense which it regarded as obligatory, but which the municipal authorities did not regard as obligatory, the municipality might appeal from the decision of the supervisory authority to the administrative courts. While the general rule is that the appeal to the administrative courts is open only in case of the viola- tion of a private right, in a few cases it is permitted simply in the interest of the maintenance of the law. v This is so e. g. in the case of elections. Here not only a defeated candidate but also any elector may appeal to the administrative courts against the decision of the election officers on the ground that it has violated the law. 1 < Finally in all cases where an appeal is made to the administrative courts the appeal is made in the same form, i. e. in the form of a complaint that injustice has been done. Like the appeal to the English quarter sessions the remedy is general though the jurisdiction of the courts is enumerated. As a general thing the 1 Stengel, Organisation, etc. , 493. GERMAN ADMINISTRA TIVE JURISDICTION. 25 1 appeal to the administrative court has a suspensive effect, and is therefore similar to the injunction in English law. But if the execution of the act com- plained of may not in the judgment of the administra- tion be suspended without harm to the public weal, it may be executed notwithstanding the pendency of the suit. /In no case, however, may the administration decree the arrest of a person until the case has been decided in its favor by an administrative court or until after the time provided for appeal to the administrative court has elapsed. 1 ^ b. The organization of the Prussian administrative courts. The Prussian administrative courts may, like the French, be divided into courts of first instance, and appellate courts. For a large class of cases, however, there are Jihree instances. For the appellate courts for some cases, are courts of first instance for others. What shall be the court of first instance in a given case is determined largely by the grade in the adminis- trative hierarchy of the authority whose act is com- plained of. The Prussians, like the French, and indeed like the English in the formation of the appellate jurisdiction of the courts of quarter sessions, have recognized the importance of having their administrative judges learned in the administrative law and have adopted ; practically the same method to attain the desired end. That is the judges in most cases are in other capacities engaged in the work of active administration. The only exception to this rule is to be found in the case 1 Ibid., 520 ; citing L. July 30, 1883, sees. 53, 133. This of course refers only to the decree of executive arrest as a means of executing the law. Supra, II., p. 121. 2$2 CONTROL OVER THE ADMINISTRATION. of the highest administrative court. In all caseb, dif- ferent from the French administrative judges and more like the English justices of the peace, the Prussian administrative judges are independent in tenure over against the active administration. ! Further in the lower instances the Prussian administrative judges, like the English justices of the peace, are laymen and are unpaid. The judges of the highest court are, however, professional lawyers and are salaried and are not engaged in active administrative work. In detail the Prussian administrative courts are as follows : First, tl^ circle committee in the rural districts and the city^ committee in the city circles. These bodies have at the same time active administrative work to perform. 1 , The circle committee is composed of the Landrath, who, it will be remembered, is the representa- tive of the central administration in the rural circles and the executive of the circle as a local municipal corporation and is appointed by the Crown, 2 and of six members elected by the circle diet from among the inhabitants of the circle. 3 As these six members represent the lay non-professional element which is unsalaried, all professional officers of the administration are ineligible. In the city circles (i. e. cities of over 25,000 inhabitants) the city committee is composed of the burgomaster as president, and of four municipal citizens chosen by the city executive. 4 The president and one at least of the members must be qualified for the judicial or higher administrative courts. The jurisdiction of this, the lowest of the administrative 1 Supra, I., pp. 315, 330. 3 Kreisordnung, sec. 181. 1 Supra, I., p. 315. 4 L. July 30, 1883, sees. 37, 38. GERMAN ADMINISTRA TIVE JURISDICTION. 253 courts, as enumerated in the statutes, embraces all cases which arise between communes relative to their boundaries and to the apportionment of common charges such as for roads and schools, local taxes, common enjoyment of public institutions and com- munal property ; complaints relative to the enjoyment or loss of membership in the commune or smaller city ; appeals in regard to communal elections, difficulties relative to the civil service, i. e. the imposition of dis- ciplinary penalties on the non-professional officers ; appeals made by the local authorities from the deci- sions of the supervisory officers ; difficulties relative to the quartering of soldiers and military requisitions in time of peace ; various difficulties relative to the police of highways, waterways, building, commerce, industry, and hunting ; complaints against the action in local police matters of all local police authorities. 1 Such in general is the jurisdiction of the circle and city committee, but in all these cases if the adminis- trative authority from which appeal is taken is an important one the appeal even in these matters goes, not to the circle or city committee, but to the next highest court, the district committee. Thus in the matter of police appeals, if the action complained of has been taken by an authority of a city of over 10,000 inhabitants the competent administrative court is not the circle or city committee but the district committee. Second, the district committee. This, like the circle committee, is an authority for the active administration but its territorial jurisdiction is much larger, extending 1 Stengel, Organisation, etc., 404 ; cf. Laferriere, La Juridiction Administra- tive, I., 47. 254 CONTROL OVER THE ADMINISTRATION. over the entire governmental district, which corresponds somewhat to the American county. It is however differently organized as an administrative authority and as an administrative court. In the first capacity the government president, the representative of the central administration in the district, is president, in the second capacity it is presided over by the adminis- trative court director who is appointed by the Crown and is to be one of the two professional members pro- vided by the law. These two professional members are to be appointed by the Crown for life and must possess, one, the qualifications for the judicial service, the other, the qualifications for the higher administra- tive service. In addition to the two professional mem- bers there are four lay members who are appointed by the provincial committee from among the inhabitants of the district. 1 The district committee has, as admin- istrative court, original and appellate jurisdiction. It has appellate jurisdiction of the decisions of the circle and city committees and has original jurisdiction over the affairs of the rural circles and the cities of over 10,000 inhabitants similar to that which the circle committees has over the affairs of the communes and the less important cities. 2 The whole question of jurisdiction is settled by the competence law of 1883 which goes into the most minute details and settles not only the question whether appeal may be taken to an administrative court ( Verwaltungsklage), or whether it is to go to an administrative authority (Verwaltungs- beschwerde), but also determines to what court the appeal, when allowed, is to go. / ,. ' L. July .30, 1883, sees. 27, 28, supra, I., p. 307. 'Stengel, Organisation, etc., 424 ; Laferri^re, op. fit., I., 49. GERMAN ADMINISTRATIVE JURISDICTION. 255 Third, the superior administrative court. This court sits at Berlin, and is the highest administrative tri- bunal. It is composed of judges who must be at least thirty years of age and are appointed by the Crown on the presentation of the state ministry. Half the judges must possess the qualifications necessary for the judicial service, the other half must be qualified for the higher administrative service. 1 It is divided, in order to facilitate the transaction of business, into sections or senates, 2 but in order to keep its decisions uniform," it is provided that, if any senate desires to depart from the decision of any other senate or from that of the general assembly of the court, the matter in question must be decided by the general assembly. 3 This court acts as a court of appeal, as a court of cassation, and in a few instances as a court of original jurisdiction. It acts as a court of appeal from the decisions of the dis- trict committee when it often acts as a court of third instance. Its jurisdiction as a court of cassation can with difficulty be distinguished from its jurisdiction as a court of appeal, the only difference being that when it acts as a court of cassation it does not as a usual thing decide questions of fact and simply quashes or affirms the decision of the court appealed from; whereas when it acts as a court of appeal it may decide questions of fact and may substitute its decision for that appealed from. As a court of original jurisdiction it decides as a rule simply complaints against the deci- sions of the highest of the officers in the localities, mz^ the governors of the provinces and the " governments " and the " government " presidents in the districts. When it acts in these particular capacities is decided 1 L. July 3, 1875, sees. 17, 18. * Ibid., sec. 20. 3 Sec. 29. 2 5 6 CONTROL OVER THE ADMINISTRATION. by statute which descends into the most minute details. 1 Finally, the procedure in all of these administrative courts is generally oral, and the sessions are public, but this may be changed by consent. The procedure is also somewhat inquisitorial in character, but in the main controversial. 2 It will be noticed that the general system of admin- istrative courts in Prussia is based on the French plan, but care has been taken to avoid the appearance of dependence on the active administration, which is regarded by some, writers as so serious a defect in the French system, as taking away in fact from the French administrative tribunals the characteristics of judicial bodies. The Prussians have also laid great stress on the non-profession;al character of the administrative judges, in imitation of the English courts of quarter sessions. The similarity to the English method is not accidental, but is due to the influence of that great student of English public law, Professor Gneist of the University of Berlin, to whose exertions was largely due the organization of the system, and who insisted on the dominance of the non-professional elements in courts whose duty it was to control so professional a"n administration as is the Prussian. 1 Cf. Stengel, Organisation, etc., 438 ; Laferriere, op. cit. t I., 50. 1 Stengel, Organisation, etc., 508 et stq. CHAPTER VIII. CONFLICTS OF JURISDICTION. Our examination of the administrative jurisdiction in the various countries coming under consideration has shown that England and the United States have given this jurisdiction in first or in last instance to the ordinary courts, Awhile France and Germany have with some exceptions put it into the hands of ^sgeeiaL administrative courts. While in England and the United States, the possession by the ordinary courts of the administrative jurisdiction^ has resulted in the for- mation of a series of more or less special remedies and a very technical procedure, 1 the existence of special courts in France and Germany has brought about the possibility and indeed the probability of conflicts of jurisdiction between the two^classes o courts, or be- tween the ordinary judicial courts and the administra- tion. Either the judicial courts attempt to encroach upon the competence of the administration or the administrative courts, and vice versa, when we have a positive conflict ; or they both refuse to take jurisdic tion on the ground that they are incompetent, when we have a negative conflict. It is necessary to provide 1 An example of the technicality of the procedure may be found in the Vir- ginia coupon cases, lately decided by the United States Supreme Court. See Poindexter v. Greenhow, 114 U. S., 270 ; Hartman v. Greenhow, 102 U. S., 672 ; Antoni v. Greenhow, 107 U. S., 769. VOL. 1117 257 258 CONTROL OVER THE ADMINISTRATION. some means of settling these conflicts. This means has been provided in both countries which have given the administrative jurisdiction to special courts or to the administration itself. In France the_JHbunal of Con- flicts has been formed for the purpose of settling these conflicts ; in Germany either a similar tribunal, known as a competence court, has been established, or else the power to settle these conflicts has been given to the ordinary judges. Where special conflict courts have been formed, the principle upon which they have been formed is essentially the same, that is that they shall be composed of an equal number of judges of the ordinary courts and of administrative judges. The law organizing the French Tribunal of Conflicts is that of May 24, 1872 ; that relative to this matter in Germany is the law organizing the courts of January 27, 1877, sec. 17, developed in its details in Prussia by Ordinance of August 1, 1879. This law provides in the first place that all conflicts of jurisdiction between the courts and the imperial administrative officers shall be settled by the ordinary courts themselves 1 ; and in the second place permits the separate members of the empire to give the imperial courts the power to decide conflicts arising between the courts and admin- istrative officers, but permits them at the same time to form special conflict courts. But if they avail them- selves of the latter privilege the special courts provided must be so organized that one half of their members shall be at the same time members of the higher im- perial courts, while the other half must be appointed for life. The only exception to this general principle in force in both France and Germany as to the equal 1 Cf. Stengel, Organisation, etc., 557. CONFLICTS OF JURISDICTION, . 259 representation in the conflict courts of both the judicial and administrative elements is in the fact that the president of the French Tribunal of Conflicts is the minister of justice. The administration would thus seem to have the casting vote in France. But it must be remembered that the minister of justice is almost as liable to declare in favor of the jurisdiction of the ordinary courts as in favor of that of the administra- tion, since his duties connect him much more closely with the ordinary courts than with the administrative courts or the administration. The method of raising the conflict as it is called or as we would say in America, of removing the cause, is in both countries practically the same. But it is ar- ranged primarily to prevent the ordinary courts from encroaching on the power of the administration ; and this is only natural since the whole system of special administrative courts is largely based upon the prin- ciple of the independence of the administration from the control of the ordinary courts. Thus in both France and Germany the power to remove the cause is given to an administrative officer only ; and he is, in case a court is in his opinion attempting to encroach upon the competence of the administration, 1 to notify the court of the opinion of the administration. If the court believes the claim of the administration is well founded it will stop its action in the case, if it does not it opposes such claim and the question goes up directly to the conflict court for decision. In the German imperial administration no conflict can be raised, but the courts, i. e. the ordinary courts, decide the matter along with 1 In France the prefect, Boeuf, Droit Administratif, 546 ; in Germany the provincial or district officers, Loening, op. cit. , 792, note 4. *6o CONTROL OVER THE ADMINISTRATION. other jurisdictional questions and in the same manner. 1 In those cases in which the conflict may be raised the notification by the administration of the removal of the cause suspends all proceedings before the ordinary courts until the decision of the conflict court is made. 2 In France one means has been provided of preventing the administrative courts from encroaching upon the jurisdiction of the ordinary courts. The ministers have the right to remove any matter before the Council of State, which they believe belongs before the ordinary courts, into the Tribunal of Conflicts, if the Council of State on demand refuses to declare itself incompetent. 8 It must be noted that the exercise of such a check on the administrative courts is in the hands of the admin- istration and not in those of the judiciary. The minister of justice has, however, the same right in this respect as the other ministers. In case of negative conflicts the individual concerned is to bring the matter before the court of conflicts where that exists. 4 In France, however, an interested minister and particularly the minister of justice may bring the matter before the Tribunal of Conflicts. 5 In the case of the positive conflict it is provided in the interest of vested rights, that the cause must be re- moved, in Germany before judgment, 6 in France before final judgment, in the ordinary courts. 7 The existence of these conflicts is one of the greatest disadvantages of the system of special administrative courts. It is a greater disadvantage probably than the 1 Stengel, Organisation^ etc., 597. 2 Boeuf, Droit Administratif, 549 ; Loening, op. fit., 793. 'Boeuf, op. tit., 550, citing L. May 24, 1872, art. 26. 4 Boeuf, op. tit., 554 ; Loening, op. tit., 703. 6 L. Jan. 27, 1877, art. 17. 6 Boeuf, op. tit., 554. : Boeuf, op. tit., 546. CONFLICTS OF JURISDICTION. 261 special character of the remedies aiid the technical character of the procedure in the administrative juris- diction of the ordinary English and American courts. For in the case of a positive conflict the decision of a private law case may be greatly delayed, while in the case of a negative conflict an individual may be obliged to apply to both classes of courts and to the conflict court before he knows which court is the proper one. Cases have occurred in France in which a suitor ha gone through all the ordinary courts up to the Court of Cassation only to be told that the ordinary courts are incompetent, has then applied to the administrative courts and finally obtained the decision of the highest one of these, the Council of State, only to be told here also that the administrative courts were incompetent and has then been obliged to appeal to the Tribunal of Conflicts and after all the trouble and expense neces- sitated by this long litigation is only in the position of suitor beginning litigation with a knowledge of the court which has jurisdiction of his case. Of course much of this trouble is avoided in the administrative' system of the German Empire where, as in the United States, in the matter of the jurisdiction of the United States and commonwealth courts, the supreme judicj^l of jjecjsJQjL But while this method is of course of great advantage to the suitor it must be remembered that by it the independence of the administration, which is one of the main reasons for providing special administrative courts, is not so well assured. Division III. The Legislative Control. CHAPTER I. HISTORY OF THE LEGISLATIVE CONTROL. The history of the legislative or parliamentary con- trol must be studied in the history of English insti- tutions, since England developed the modern legis- lative body. In the historical sketch which has been given of the English administrative organization * it was seen that there was gradually developed by the side of the absolute Norman king a body composed at first of the meliores terrce and finally of the repre- v sentatives of the entire population of the kingdom. One of the most important functions of this body, the Parliament, was from the earliest times to redress grievances. Even so late as the latter part of the middle ages much of the time of Parliament was taken up in the discharge of this function. The grievances which the Parliament sought to redress not only were notable abuses in the government but were found in the most minute details of the government. Indeed at first, the main means of controlling the ad- ministration, not only in the interest of society at large but also in that of individual rights, was to be found 1 Supra, I., pp. 98, 122. * 262 HISTOR Y OF LEGISLA TIVE CONTROL. 263 in this parliamentary control. As a result of the government of the Stuart kings two facts, however, became apparent. The first was that the party con- flicts which are so apt to arise in Parliament made it an improper authority for the exercise of such an extended control ; the second was that the parliamen- tary control was altogether insufficient for the protec- tion of individual rights against an arbitrary and corrupted administration. These defects in the system of control over the administration were remedied by increasing the independence of the local organs and of the courts, and the consequent increase of the judicial control over the administration. 1 The parliamentary or legislative control was in this way reduced to the position of a subsidiary but at the same time a neces- sary control. 2 The general redress of grievances was therefore made by the courts and Parliament redressed only grievances of an extraordinary character. Peti- tions for redress of grievances from this time on took on the character more of propositions de lege ferenda. At the same time Parliament began to increase its con- trol over the administration in other directions. Thus it began to specify in its appropriation acts the pur- poses for which money might be spent by the adminis- tration. The spending of money had been before 1676 altogether an affair of the royal prerogative with which the Parliament had not interfered. But it was led to assume this power as a result of the wasteful administration of the kings, 8 and as a result of the fact that through this power it could exercise a very efficient control over the general policy of the execu- 1 Gneist, Das Englische Verwaltung$recht y 1884, 345. Gneist, toe. cit. 3 Infra, II., p. 280. 264 CONTROL OVER THE ADMINISTRATION. tive. Further in order that this power might be of any value it was necessary for the Parliament to assure itself in some way that the administration had con- formed in its actions to the provisions of the appropria- tion acts. It therefore, somewhat later, began to examine the accounts of the administration. Again while the Parliament still retained its former power of impeaching the ministers of the Crown in case of their continued and wilful disobedience of the resolutions of Parliament and violation of the law of the land, it added very much to its powers of control by insisting that the ministers of the Crown should be such persons as could obtain and retain the confidence of Parlia- ment. The result of the development of this principle of the responsibility of the ministers led to a further increase of the control of the Parliament, which is not capable of exact juristic determination, and which has practically resulted in the abandonment of the power of impeachment. The formerly all embracing parliamentary control has been reduced thus practically to the exercise of three powers which are largely subsidiary to the other methods of control. These three powers are : first, the power to remedy special abuses in the interest of the social well-being by entertaining propositions de lege ferenda and by investigating the conduct of the admin- istration ; second, the power of controlling the general policy of the administration through the voting of the appropriations and the examination of the accounts of the administration after the execution of the budget in order to see whether the provisions of the appropria- tion acts have been observed ; and third, in the extra- ordinary power of impeachment, to be made -use of HISTORY OF LEGISLATIVE CONTROL. 265 only when all else fails to bring the administration within the bounds of the law. This power is supple- mented by the principle of the responsibility of the ministers to Parliament, and is largely replaced in actual practice by that principle. Such was the form of the parliamentary or legisla- tive control in England at the time the general English system of constitutional government was introduced into the governmental system of constitutional states, which have generally adopted it, subject, however, to those modifications made necessary by their peculiar constitutional system. CHAPTER II. THE POWER OF THE LEGISLATURE TO REMEDY SPECIAL ADMINISTRATIVE ABUSES. The exercise of this power may result from petitions which have been sent to the legislature by individuals. For almost all constitutions guarantee to the individual the right to address petitions to the government, and the legislature is the place where most of such petitions go. The legislature may further act of its own motion as it is generally on the watch for administrative abuses. The means of exercising this control are the passing of resolutions condemnatory of the administra- tion, the putting of questions or interpellations to the administration, and, in case satisfactory answer is not made by the administration, the undertaking on the part of the legislature, through committees appointed by it, of investigations which may have in view either the unearthing of abuses which have been suspected or obtaining information de lege ferenda. The extent and influence of the power in all these cases of its exercise depends very largely upon the character of the rela- tions of the executive and the legislature as fixed by the constitution. If in the special political system the executive power is independent of the legislature such control loses all its sanction, except in so far as it may be used for the purpose of legislative reform (de lege 266 POWER TO REMEDY SPECIAL ABUSES. 267 ferenda). But on this account alone the legislatures of all states, even of those where the executive is in- dependent of the legislature, have large powers of control over the administration. For the legislature through .the passage of laws may circumscribe the action of the administration so far as discretionary powers are not guaranteed to it by the constitution^ which is not often the case. In those countries, how- ever, where the executive is dependent upon the legis- lature, this control has a most powerful sanction. For the action of the legislature may result in an expres- sion of its lack of confidence in the ministry, which is then bound to step out and give place to a ministry whose conduct will satisfy the legislature. From this point of view the countries under consideration may be divided into two classes. In the first will be found the United States and Germany, not only in their cen- tral but also in their commonwealth organizations ; in the second class are to be placed England and France.. I. Where the administration is independent of the legisla- ture (United States and Germany). In the United States and Germany this control is exercised in all the ways which have been mentioned. In Germany it is, however, more efficient than in the United States. For, though the administration is independent of the legislature in tenure, it is customary for the highest administrative officers, i. e. the ministers, to be present at the sessions of the legislature. Being present they are naturally forced to answer questions put to them. This obligation seems to be simply a moral one, their refusal to answer or their unsatisfactory answer leading to no legal or political results. Still -68 CONTROL OVER THE ADMINISTRATION. the mere fact that officers of the administration are present and practically have to answer questions put to them has an important moral effect in making them conduct their offices properly. This method of exer- cising a control over the administration by the legisla- ture is called on the continent interpellation. In the United States such a method of control is not even so important as it is in Germany for the simple reason that the officers of the administration are never present at the sessions of the legislature ; and therefore there is no opportunity for the legislature to question them personally, although, as the result of resolutions passed by either house of the legislature, questions may be put which the administration may answer or not as it sees fit. In neither Germany nor in the United States do resolutions condemnatory of the administration have any political or legal effect, though in both countries the legislature has the right to pass such resolutions. Further their moral effect does not seem to be very great. All the control that the legislature can exercise over the administration in the United States and Germany other than the moral one just alluded to is to be found in the powers of the standing committees of the legis- lature and of the special investigating committees which from time to time may be appointed. In the United States there is usually one such standing committee for each administrative department. The main func- tion of such standing committees is to scrutinize care- fully the way in which the business of the particular department is transacted. The special committees are formed for the purpose of investigating some particular abuse in the administration whose existence is alleged POWER TO REMEDY SPECIAL ABUSES. 269 by individuals or has come to the notice of the legis- lature. Real authority such committees do not have, except where the legislature may have the power of removal. Their action can result simply in new legislation. Further their power of obtaining in- formation either from the officers of the administra- tion or from private individuals is often not a great one. This is true, particularly of the committees of the national Congress. For quite a time it was supposed that, as a result of a decision of the United States Supreme Court, 1 Congress and its committees had full power to punish witnesses for contempt who refused to answer questions put to them ; but the same tribunal in a more recent case has limited very greatly this power. It has decided * that a congressional com- mittee had no power to punish a witness for contempt in refusing to answer questions in regard to matters over which Congress had no jurisdiction ; and, while the Supreme Court expressly refused to decide whether Congress had the power to force a witness to testify in cases where it desired information for its use in legislation, it seems to indicate in its opinion that Con- gress has no such power. Nothing, however, prevents Congress or its committees from gathering testimony from willing witnesses. When we come to the com- monwealths it is not so easy to say exactly what is the power of the legislature in this respect. It is easily conceivable that the legislatures of the commonwealths might have this power although it is not possessed by the national Congress. For there is no principle of our constitutional law which is clearer than that, while 1 Anderson v. Dunn, 6 Wheaton, 204. 1 Kilbourn v. Thompson, 103 U. S., 168. 270 CONTROL OVER THE ADMINISTRATION. Congress is an authority of enumerated powers, the legislatures of the commonwealths may do anything which they have not been expressly forbidden to do by the constitution. 1 And seldom do we find in the com- monwealth constitutions any provisions which clearly take away any such power from the commonwealth legislatures. Indeed in the constitutions of twenty- four of the commonwealths 2 such power of punishing for contempt would seem to be granted. The consti- tutions of several of the commonwealths provide that the legislature shall have " all other powers necessary for the legislature of a free state." 3 The constitution of Massachusetts has been so interpreted by the supreme court of the commonwealth as to give a committee, ap- pointed for the simple purpose of investigation, the power to punish witnesses for contempt. 4 Finally in the case of those commonwealths whose constitutions contain no provision as to this point we have several cases which throw light on the subject. Most of these cases are in the courts of New York, which has exer- cised this power more frequently than the other com- monwealths. Here it has been decided that the legislature or its committees, to which it has delegated the power of investigation either by statute or by reso- lution, have the power to punish for contempt. 5 The latest case on the point 6 imposes an apparent limitation 1 See Bank of Chenango v. Brown, 26 N. Y., 467, 469 ; People v. Dayton, 55 N. Y., 380. 2 Alabama, Arkansas. Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mis- souri, Nebraska, Nevada, New Hampshire, Oregon, Pennsylvania, South Caro- lina, Tennessee, Texas, and West Virginia. See F. W. Whitridge on " Legis- lative Inquests," in Pol. Set. Qu., I., 84, 89. 1 Ibid., 89. 4 Burnham v. Morrissey, 14 Gray, 226. ' People v. Learned, 5 Hun, 626 ; see also Wilckens v. Willet, I. Keyes, 521, 525. People ex rel. McDonald v. Keeler, 99 N. Y., 463. POWER TO REMEDY SPECIAL ABUSES. 271 on this power in that it says that the legislature or one of its committees may only punish for contempt wit- nesses who refuse to answer questions put with the desire of obtaining information for the future legisla- tive action of the legislature ; but, as it at the same time admits that the court cannot judge of the inten- tion of the legislature, all that the legislature has to do in order to bring itself under the rule stated in this case is to declare in the resolution appointing the com- mittee that it desires such information. 1 But even if the legislature does not possess this power, still as a matter of fact the officers of the . administration will usually comply with the summons of an investigating committee of the legislature, and will answer all rea- sonable questions put to them since " desiring legisla- tion and always desiring money [they have] strong motives for keeping on good terms with those who control legislation and the purse." 2 It would seem that the German law recognizes as belonging to the legislature a similar control over the administration through the appointment of investigating committees. 3 77. Where the administration is dependent upon the legislature (France and England). When we come to consider those states whose politi- cal system recognizes that the administration is depen- dent upon the legislature we find that this kind of control of the legislature over the administration is very much greater. Since the administration must keep the con- 1 See also the case of Ex parte Dalton, 44 Ohio St., 142, which holds that the legislature may punish for contempt in election cases. 'Bryce, American Commonwealth, I., 154. 3 Stengel, Deutsches Verwaltungsrecht, 204. 272 CONTROL OVER THE ADMINISTRATION. fidence of the legislature it must, iu the nature of things, defend its policy when it is attacked and, since the legislature may at any time force the ministry out of office, it may investigate and censure the administra- tion at such times and iu such manner as it sees fit. Indeed the sanction of the control is so great that the control itself will amount in actual practice to just about what the legislature sees fit to make it. If the legislature does not impose bounds upon its control it may through its exercise practically take the place of the administration or reduce the administration to such a weak position that it will be all but impossible for it to transact properly the business in theory assigned to it. This the legislature has done in France. Inter- pellations, addresses, questions as to its policy and censures of the action of the administration have been so frequent that the French acting executive has been completely terrorized and paralyzed ; and the control which the legislature possesses and which, in order that the government may be well conducted, should be used with moderation, it has made use of to deprive the administration of almost all discretion and practically to concentrate in the legislature many administrative functions. The existence of such a control presupposes that the ministers will guide the legislature, that they will have its confidence, which shall not be withdrawn for trivial reasons. The ministry in such a political system serves or should serve the purpose of the standing committees of those legislatures in which the ministry is not represented. Where this is not the case, as it is not the case in France, the ministry and the administration become the servants rather than the guides of the legislature and naturally become so POWER TO REMEDY SPECIAL ABUSES. 273 anxious to win the approval of the legislature that they are unable wisely to conduct the government. If this legislative control is not to degenerate into the performance by the legislature of administrative func- tions it is necessary that the legislature limit its exer cise of this method of control. This is exactly what the legislature has done in England. There the min- istry are not the servants of the Parliament but on the contrary are their guides, the great standing committee of the Parliament which is to direct all its business subject to the necessity of getting the general approval of the Parliament on its policy taken as a whole. This matter of the parliamentary control in England is treated very fully by Mr. Todd in his Parliamentary Government in England? He lays it down as the gen- eral rule that Parliament is designed for counsel and not for rule, 2 for advice and not for administration. On the authority of May it is said that u its power is exercised indirectly." ! Since the passage of the re- form bill of 1867, however, the House of Commons has shown a disposition to encroach more and more upon the sphere of government. It regards any matter as the proper object for its censure. Resolu- tion after resolution is proposed with the object of expressing the disapproval of Parliament of some par- ticular administrative practice or measure 4 ; and if the result of such a resolution is the disapproval of Parlia- ment, according to May " ministers must conform to its opinion or forfeit its confidence." Many of the prece- dents cited by Mr. Todd go, however, to show that Parliament does not always in unimportant matters, 1 2d Ed., I., Chapters vii.-xii. * Ibid., I., 414. * Ibid., 421. 4 See precedents cited by Mr. Todd, oj>. '/., I., 422. VOL. II 1 8 274 CONTROL OVER THE ADMINISTRATION. even in case of its disapproval, go so far as to force the ministry to resign or even to conform to its views. The concrete result depends very largely upon the character of the individual case. It may be laid down as a general rule that Parliament may not, as a result of this control, proceed to give orders to any of the subordinate officers of the government, as this is regarded as actual administration rather than control. 1 Of late years it has become a common practice for Parliament to appoint what are known as select com- mittees for the purpose both of acquiring information with a view to legislation and of examining into the constitution and management of the various depart- ments. 2 Such committees are appointed either at the suggestion or with the approval of the government. But both parties are represented on them though the party in the majority in the house itself is given the majority. After taking evidence from every available source, and it would seem that such committees have the power to punish for contempt the refusal to answer questions, 3 the committee reports to Parliament, gener- ally embodying in its report practical suggestions which are submitted for the consideration of the government. 4 It is usual to leave to the administration the initiation of the necessaiy measures. 5 Finally as a result of its powers of control and investigation Parlia- ment may demand the presentation by the administra- tion of papers and documents, though the rule generally is that Parliament will not require the government to bring forward any papers which in its opinion should be kept secret for political reasons. 6 1 Todd, op. cit., I., 421. 2 Ibid., I., 428. 3 May, Parliamentary Law and Practice, 73, 74. 4 Todd, op. cit., I., 432. 5 See precedents, Ibid. 6 Ibid., I., 439 et seq. CHAPTER III. THE LEGISLATIVE CONTROL OVER THE FINANCES. Through its control over the finances the legislature exercises a control over the general policy of the ad- ministration. For the conduct of the entire adminis- tration is closely connected with the amount of money which may be spent. The control over the finances is to be found in three powers: first, in the power any given legislature has to fix the amount of money which is to be spent by the administration for the coming budgetary period ; second, in the power it has to fix the purposes for which money has to be spent ; and third, in the power it must have, if the second power is to amount to anything, to ascertain, after the expen- diture of the money, whether the administration has acted in accordance with the provisions of law fixing the amount to be spent and the purposes for which money is to be spent. /. Control over receipts. The legislative control over the finances in its modern form was, like the other methods of legislative control, developed by England. Originally the only way in which the English Parliament endeavored to control the financial administration was by fixing the amount of money which could be raised by the Crown by 275 276 CONTROL OVER THE ADMINISTRATION. means of imposing taxes upon the people. The Parlia- ment did not attempt to control the amount of money which could be spent nor the purposes for which it should be spent. 1 This was also true of the early American colonial government. 2 The later develop- ment has reversed this condition of things. At the present time most of the receipts, i. e. taxes, are fixed by permanent law. No given Parliament has much, to do with receipts. For its action is no longer necessary in order that the receipts shall come in. So long as the law establishing the taxes is not repealed, which will require the combined action of both houses of Parliament, the administration may go on collecting the taxes regardless of Parliament, providing it acts in accordance with existing law. 3 This principle has been introduced into the United States. Thus in the national government the customs duties and the in- ternal revenue taxes, from which two sources most of the revenue of the national government is obtained, are both fixed in amount by permanent law in that the rates which may be levied are so fixed. The amount of money which is received from these sources is inde- pendent of the action of any particular Congress and depends rather upon the business and prosperity of the country. If the houses of Congress take no action on these matters the duties are still levied. This is true also of the other receipts of the national govern- ment, such for example as tonnage dues and the re- ceipts of the post office and from the sale of public 1 Cox, Institutions of the English Government, 199. 2 Supra, I., p. 53. 'Gneist, Das Englische Verwaltungsrecht, 1884, I., 431 ; II., 715. At the present time almost the only tax which is fixed in amount by each Parliament is the income tax. CONTROL OVER THE FINANCES. 277 lands. A given Congress has generally therefore nothing to say as to the amount of the receipts of the government. In order to change it in any way either the two houses and the President must agree or the two houses of Congress must act by a sufficiently large majority to overcome the veto of the President. The same rule is generally true of the receipts in Germany with the exception of those of the imperial government. Some imperial receipts are indeed fixed by permanent law, as e. g. the receipts from the post office. But these receipts constitute a very small part of the total receipts of the empire. The greater part is to be found in the rnatricular contributions which the separate members of the empire have to pay into the imperial treasury and whose amount is settled largely in accordance with the population of the par- ticular member. The separate members are allowed to collect in accordance with imperial laws taxes on imports, i. e. customs duties, and on objects of domestic consumption and manufacture, i. e. internal revenue, in order to pay such matricular contributions. The actual amount of these contributions is to be fixed annually by the imperial legislature. 1 Therefore the larger part of the receipts is under the control of each imperial legislature and if one of the houses of the legislature fails to act or if both houses fail to agree, while the taxes might still be levied in the particular members of the Empire the receipts from them would not be at the disposition of the imperial administration. In the separate members of the German Empire, however, we find as a rule the receipts independent of the yearly action of the legislature. Thus in Prussia, the consti- 1 Imperial Constitution, Art. 70. 278 CONTROL OVER THE ADMINISTRATION. tution provides 1 that the taxes as fixed by law shall continue to be collected until the law fixing them has been amended or repealed which, it will be remem- bered, may not be done without the consent of the Crown, the chief of the administration. In France the action of each legislature each year seems to be necessary in order that the receipts may come in, and thus each legislature has almost complete control over the receipts. It was thought by the French constitution-makers that they were introducing into their public law the principles of the English law when they adopted this rule. But they knew the English law only from such works as those of De Lolme and Benjamin Constant. These writers, partic- ularly Constant, obtained their knowledge of English public law almost entirely from Blackstone, who fails to lay the stress he should on the principles which are back of the law, but which are still of great import- ance. 2 As Blackstone speaks of taxes being imposed only with the consent of the legislature, and lays great stress upon the powers of Parliament to withhold sup- plies, it was only natural for French publicists to believe that the taxes were completely in the control of each particular Parliament, and that if there were not a common action of both houses it would be im- possible for the Crown to obtain supplies. Therefore in their new constitutions the French adopted in its extreme form the principle that taxes must be voted annually by the legislature. It is true that such taxes as the customs duties are fixed, as regards their rate, 1 Art. 109. 9 See Gneist, Das Englische Verwaltungsrecht, I., 433, note ; Ibid., Gesetz und Budget, 85. CONTROL OVER THE FINANCES. 279 by a permanent law. But in accordance with the theory, it is at the same time provided that, in order that even such rates be collectible by the administra- tion, annual action or authorization by the legislature is necessary; and it is an actual crime upon the part of any administrative officer to collect a tax which has not been so authorized. 1 Finally the ordinary courts are to decide whether a tax which the administration attempts to collect is legal. 2 We find similar instances of the annual vote of taxes by the legislature in some of the American common- wealths. Indeed this seems originally to have been all but the universal rule as a result of the kind of tax which was adopted. This was the general property tax, and the way in which it was levied was to ascer- tain the amount of money to be spent, and then appor- tion it out among the counties of the commonwealth. This of course necessitated action by the legislature at each of its sessions. But with the recent changes in the tax system the control each legislature has over the receipts has been considerably lessened. For many of the taxes are now fixed as to rate by permanent law, e. g. the corporation tax and the inheritance taxes, and the action of any particular legislature is no longer necessary to their collection. II. Control over expenses. It has already been pointed out that the English Parliament originally contented itself in the exercise of its control over the financial administration with fixing the amount of the supplies obtained from taxa- 1 See Constitutional Law, Feb. 24, 1875 ; Penal Code, art. 174 ; Ducrocq, Droit Administratif, I., 544. * Ducrocq, loc. cit. 280 CONTROL OVER THE ADMINISTRATION. tion which were to be placed at the disposition of the Crown. It did not attempt in any way to exercise a control over the disposal by the Crown of the money in its control, regarding the spending of money once raised as peculiarly a part of the royal prerogative. But the abuses of the financial administration particu- larly by the Stuart kings led the Parliament to begin soon after the restoration, viz., in 1676, regularly to- ri esignate the purposes for which the money should be spent, by the insertion in the grant of what was known as an " appropriation clause." l This clause not only designated the purposes for which money was to- be spent but also forbade the Crown to make any other use of the money granted than that expressed in the clause. 2 It must be remembered, however, that this clause at first affected only the extraordinary revenue of the Crown, i. e. the revenue coming from taxation, and was also of a very general character. But with the gradual enormous increase of the extraordinary revenue and at the same time the decrease not only in importance but also in actual amount of the ordinary revenue (i. e. the revenue from the royal domains, etc.) the legislature got into its hands the control of most of the expenses of the government as well as that of the receipts which at this time had not become permanent., The result was a verv unstable condition of the finances, / This, it was felt, weakened the power of the state par- ticularly since, as a result of the foreign policy of Eng- land during the reign of William III, a large debt had 1 Cox, Institutions of the English Government, 199. Cox cites here much earlier instances of such appropriation clauses but says they were of rare occurrence. 2 In 1680 Sir Edward Seymour, the Treasurer, was impeached for not observ- ing such clauses. Ibid., 200, note (a), citing 8 State Trials, 127. CONTROL OVER THE FINANCES. 281 grown up. This instability was remedied in the fol- lowing way : In the first place the receipts were made stable by establishing the taxes by permanent law instead of making the action of each Parliament neces- sary in order that they might flow into the treasury. Further all the revenues were to be paid into what were called the funds, viz., the General Fund, the South Sea Fund, the Aggregate Fund which were later con- solidated in the Consolidated Fund. 1 In the second place in order to insure the stability of certain at any rate of the expenses it was provided that such expenses should be paid out of these funds as a result of a per- manent law. Such was particularly the case with the interest on the public debt which, it was felt, should not be dependent on the annual action of the Parliament. 2 When the special funds were consolidated into the Consolidated Fund these expenses became chargeable upon the Consolidated Fund. Two further facts con- tributed to increase the stability of the expenses. The ordinary revenue of the Crown was not controlled by Parliament ; and from it were defrayed quite a number of expenses such as the salaries of the judges and of ambassadors. Further, the revenues from cus- toms and inland revenues were for a long time reported net. That is, the expenses of their collection were defrayed from the receipts and the balance only was paid into the Consolidated Fund. 3 This arrangement was, however, felt by Parliament to give it too little control over the expenses, so it was finally provided that the ordinary revenue of the Crown should like 1 27 Geo. III., c. 13. 2 See 3 Geo. I., c. 7 ; Gneist, Das Englische Verioaltungsrecht, 1884, 686. *Gneist, op. dt., 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. 1 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. 2 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. 3 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. 4 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 1 SeeI. Geo. III., c. 3. 5 The fund is now regulated in its main features by 17 and 18 Viet., c. 94. 3 Gneist, op. cit. t 688. 4 Gneist, op. cit., 691, 692, citing Parl. Papers, 1880, xlv., xlvi. . ; CONTROL OVER THE FINANCES. 283 estimates are voted every year is to be found in the 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 strength 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. 1 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 1 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. 1 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. 2 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 1 Standing Order of June 25, 1852, cited in Cox., op. cit. t 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 1 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. 2 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 1 U. S. v. Langston, 118 U. S. f 389. 9 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. 3 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 4 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. 5 The exact control which the legislature has over the 1 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, etc., 77 N. Y., 542. "Nichols v. Comptroller, 4 Stew, and Port. Ala., 154. 8 In some cases this is required by the Constitution, Stimson, op. cit., p. 320 B. This is so in Arkansas, Kansas, Louisiana, Missouri, Ohio, and Texas. 4 Supra, I., p. 75. 6 Ducrocq, op. cit., I., 533-544. Cf. 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 seein 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. 1 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. 2 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 1 Meyer, Deulsches Staaisrccht, 546. * Meyer, op. fit. , 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. 1 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 rnatricular 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- J See Imperial Constitution, Art. 7. * Meyer, op. '/., 538. VOL. II. 19 2 9 o 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. In France it is provided that 1 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. 2 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." 3 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. 4 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- 1 L. Dec. 14, 1879. 8 Todd, op. cit., I., 730. 759. 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 question 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 2 9 2 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. 1 In Germany both in the empire and in Prussia a similarly organized body with a similar name discharges similar functions. 2 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. 3 In the United States, how- ever, the legislature acts in its investigations unaided by any other authority. Great care is taken both by 1 Boeuf, Droit Administrate f, 84-102. * Meyer, Deutsches Staatsrccht, 540, 551. 3 Todd, Parliamentary Government in England, II., 569. UNIVERSITY OF ^TROL 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. 1 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 3 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. 8 See rule 42. 3 Rule II, sec. 32. 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. 1 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. 2 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 1 Gneist, Das Englisc he Verwallungsrecht, 1884, 731. 3 Ducrocq, Droit Administratif, I., 423 ; Meyer, op. '/., 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. 1 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. 1 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 1 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. 2 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 bringing forward the impeach- 1 Blackstone, Commentaries, IV., 360. 9 For its history see Cox, Institutions of the English Government ', 229 et seq., 468. 296 IMPEACHMENT. 297 ment or indictment, the House of Lords acting as the court. 1 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, 2 but later came to include, es- pecially during the reigns of the Stuarts, offences political in nature. 3 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. 4 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. 5 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 1 Ibid., 229, 470,471. 2 Gneist, Das Englische Verwaltungsrecht (1884), 436. 8 Ibid. 4 Cox, op. cit., 235, 465. 11 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 i ; 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 2 ; 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. 3 The causes of impeachment are 4 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 1 Art. I., .sec. 2, p. 5 ; art. II., sec. 4. 2 Art I., sec. 3, p. 6. 3 Art. I., sec. 3, p. 7. 4 Art. III., sec. 4. IMPEACHMENT. 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 officer 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. 1 It would seem therefore that the phrase "high crimes 1 See Cyclopedia of Political Science, etc., sub verbo Impeachment. Article by Alexander Johnston. 3 oo CONTROL OVER THE ADMINISTRATION and misdemeanors " does not include political matters. This is largely due to the 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. 1 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. 2 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 1 Stimson, American Statute Law, 63. * So in Louisiana, West Virgina, Virginia, and Florida. See Ibid., 64. IMPEACHMENT. 30. 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. 1 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. 2 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 3 provides that the President, who is responsible to the legislature only for treason, 4 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, 5 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. 6 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. 7 In most of the other members of the empire, however, provision is made /., p. 65. 3 L. July 16, 1875, art. 12. 4 L. Feb. 25, 1875, art. 6. * L. Feb. 25, 1875, art. 6. 6 L. July 16, 1875, art. 12. 17 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. 1 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. ALLINSON 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, 124-126, 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, in, 112, 148, 150, 154, 159, 268, 271-275, 286 ; II. 217, 2l8, 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, 1.3:!. 200, 201. BLACKSTONE, Commentaries, II. 193, 195, 296. BLOCK, M., Dictionnaire de r Administration fran^aise, I. 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, i6 t 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 3 o 4 LIST OF A UTHORITIES, BRYCE, JAMES, Thf American Commonwealth, I. 52, 104, 203, 207, 208, 213, 218 ; II. 271. BURGESS, Political 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 : I. 199-201, 207-214, 216. CAMPBELL, History of Virginia, I. 58. CHALMERS, Local Government, I. 246-252, 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 Justice Administrative en France, II. 173. DARESTE DE LA CHAVANNE, Histoire de t Administration en France, T. 269, 285. DE FRANQUEVILLE, Le Gouvernement et le Parlement Britanniques , I. 112. 264. DE GRAIS, Handbuch der V erf as sung und Verwaltung, etc., I. 155, 301; II. 48, 49, 246. DETHAN, L Organisation des Conseils Gendraux, I. 268, 269, 271, 275. DE TOCQUEVILLE, L 'Ancien 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. in, 116, 149, 152-154, 156. DOCUMENTS RELATING TO THE COLONIAL HISTORY OF NEW YORK,!. 53, 54, 166. DUCROCQ, Traite 1 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 Mis government, in The Forum, Oct., 1891, I. 217 ; II. 13. ELLIOT'S DEBATES, I. 52. ELMES, WEBSTER, Executive Departments, I. 64. FISHER, S. P., Suspension of Habeas Corpus, Political Science Quarterly, HI. 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 Reformes locales en 'Prusse, in Revue Generate 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. HlLLiARD, Injunctions, II. 209. HOLLAND, Elements of Jurisprudence, I. 7. How AND BEMIS, Municipal Police Ordinances, II. 1 12. HOWARD, Introduction to the Local Constitutional History of the United States, Book III. Chapters I. and II. 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 : I. 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. IttW>, BENJAMIN, The Civil Service as a Profession, in Nineteenth Century, October, 1886, XX. 491 : II. 55. 306 LIST OF AUTHORITIES. KIRCHENHEIM, Einfiihrung in das Verwaltungsrecht, I. I. 4, 10, u, 15, 20. LAFERRIERE, La Juridiction Administrative, II. 74, 75, 80, 161, 171, 175, 176, 227, 232, 235, 243, 253, 254, 256. LECLERC, La Vie munidpale en Prusse, Extrait des Annales de 1'iEcole libre des Sciences Politiques, I. 332, 335. LEIDIG, Preussisches Stadtrecht, I. 328. LEROY-BEAULIEU, La Science des Finances, II. 287. LIGHTWOOD, The Nature of Positive Law, I. 7, 16. LOENING, Deutsches Verwaltungsrecht, I. 114, 115, 132, 141, 146, 148, 158, 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 Use, 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. "^METERIE-LARREY, Les Emplois Publies, 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, passim. OSTROGORSKI, M., Woman Suffrage in Local Government, in Political Science Quarterly, 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 Quarterly, 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 CtTof Cl. 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. n, 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, 8l, 95, ioo. 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, 2l6. SMITH, MUNROE, State, Statute, and Common Law t 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, Lehrbuch 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, Wdrterbuch des Deutschen Verwaltungsrecht, 1. 115, 305 ; II. 66, 76, 83, 87, ioo, 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 Justices of the Peace at Petty and Special Sessions, gth Ed. I. 239, 241. STUBBS, Constitutional History of England, I. 97, 122, 123, 162, 163; II. 193- IQ5- TODD, ALPHEUS, Parliamentary Government in England, I. 98-101, 129, 132, 143, 148, 150 ; II. 53, 76, 85, 155, 273, 274, 290, 292. VlNER, Abridgment, II. 201, 202. VON R6NNE, Staatsrecht der Preussischen Monarchic, II. 49, 51, 52, 161, 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 Reichsstaatsrecht, I. 16, 93-96, 116-119, 129, 140. INDEX. Acceptance of office necessary to valid incumbency, ii. 24 Acceptance of resignation of officer, ". 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, ii. 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. 120 ; records papers, ii. 131 ; socialistic action of, ii. 104, 130 ; summary procedure 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 3 io 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. 1 6 ; 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. 180 Boards, when advantageous, ii. 7 Borough, see Cities and Villages. Borough in United States, i. 2l8 (See Village.) Branches of administration, i. INDEX. Bundesrath, i. 116. (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. n-6; 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 1 8th 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 ; quo 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 INDEX. City in United States, i. 193 ; 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 ; " 103 Commission to office not necessary for appointment, ii. 23 Committees of legislature, power of to imprison for contempt, ii. 269, 274 Commonwealth administration m United States, decentralization of r 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, iL 48 ; in United States civil services,. B. 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, ii. 142, 144 ; kinds of, ii. 140 ; legis- lative, ii. 143, ii. 262 ; methods of. INDEX. 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 officers for acts, ii. 164 Councils of advice in France, i. 86, in, 284, 292 Council of appointment in New York, i. 56, 76, 78 Council of Arrondissemcnt 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. in ; functions of, i. in ; history of, i. 107 ; organization of, i. 108 Council of state in Germany, i. 114 County commissioner in United 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. 1 86 ; 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. 101 ; 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. {Sec Judicial authorities.) Court of accounts in France and Ger- many, ii. 292 Court of claims, ii. 156 Court leet, i. 194 INDEX. Court of sessions in early American colonies, i. 166 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. (Set 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 Dorfschulzen in Prussia, i. 318. (See Town officers in Prussia.) Droit administratifr 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, 101 ; limitations of power of, i. 99 ; ordi- nance power of, i. 101 ; effect of principle of parliamentary respon- sibility of ministers on position of, i. IDC ; remedies against acts of, i. 101 INDEX. 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. (Sea 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 et seq. (See President of France.) Executive in Germany, i. 89. (See ' German prince and German Empe- ror.) Executive in United States, i. 52 et seq. (See President of United States and Governor of commonwealth.) Executive authority, chief, in general, 1.48 Executive councils, i. 102 ; in France, i. 107 (see Council of state, French); in Germany, i. 114 (see Federal council and Council of State in Ger- many); in United States, i. 10. (See .Senate.) Executive departments, i. 127 ; geo- graphical arrangement of, i. 129 ; how organized, i. 129 ; method of distributing business of, i. 128 Executive functions of judicial au- thorities, i. 29 ; of the legislature, i. 25 Executive power in general, i. 49 ; administrative function of, i. 50 ; American conception of, in 1787, i. 59 ; consists of two functions, i. 49 ; difficult to formulate, i. 48 ; govern- mental function of, i. 49 ; history of, in United States, i. 52 ; political function of, i. 49 Expenses of government when fixed by permanent law, ii. 279 Extortion, ii. 71, 82 Extraordinary legal remedies, ii. 200. (See Writs, common law.) Federal Council of German Empire, i. 116 ; chancellor presides over, i. 116 ; committees of , i. 116 ; control of, over Emperor, i. 118, 120 ; func- tions of, i. 117 ; ordinance power of, i. 118 ; organization of, i. 116 ; power of, to decree federal execu- tion, i. 1 20 ; remedies against action of , i. 121 ; sessions of, i. 116 Federal execution in Germany, i. 120 Fees for official services, ii. 71 Feudal system, influence of, on Euro- pean method of local administration, i. 268 Financial administration, i. 3 Fines, ii. 120 Firma burgi, i. 193 First lord of treasury in England, powers of, i. 144 Fiscus, ii. 150, 161 Foreign relations, i. 2 Forensen in Prussia, i. 321 Frederick William I., influence of, on Prussian local administration, i. 295 ; influence of, on Prussian municipal government, i. 329 INDEX. Freedom of the city, i. 201 French administration, decentraliza- tion of, i. 154 French local administration, i. 266. (See Local administration in France.) French revolution, influence of, on French local administration, i. 269 Gemeinde in Prussia, i. 318. ( See Town officers in Prussia.) General council of the department in France, i. 277 ; administrative con- trol over, i. 280 ; duties of, i. 278 Generalities in France, i. 268 General councillors in France, how elected, i. 277 German administration, decentraliza- tion of, i. 154 German chancellor, i. 94. (See Chan- cellor of German Empire.) German Emperor, acts of, must be countersigned by chancellor, i. 95, 96 ; an authority of enumerated powers, i. 93 ; power of appoint- ment of, i. 93 ; King of Prussia is, i. 93 ; power of direction of, i. 95 ; ordinance power of, i. 95 ; power of removal of, i. 94 ; irresponsible, 1.96 German prince, acts of, to be counter- signed by a minister, i. 92; adminis- trative powers of, i. 91 ; an authority of general powers, i. 89 ; constitu- tional limitations on power of, i. 90 ; irresponsible, i. 89 ; ordinance power of, i. 92 ; power of, limited by constitution, i. 89 ; power of ap- pointment of, i. 91 ; power of direction of, i. 92 ; power of re- moval of, i. 91 ; remedies against action of, i. 93 ; responsibility of ministers for acts of, i. 89, 91, 92 German local administration, i. 295. (See Local administration inPrussia. Gneist, influence of, on Prussian local administration, i. 300 Government, suits by or against, ii. 150, 154 ; a juristic person in United States, ii. 149, 158 "Government" in Prussia, i. 305; duties of, i. 305 ; effect of reform of 1872 on organization and com- petence of, i. 306 ; origin of, i. 297 " Government" president in Prussia, i. 305 ; duties of, i. 306 ; member of higher service, ii. 49 Governmental action of the adminis- tration, i. 10 ; ii. 103 Governmental function of executive power, i. 49 Governor in Prussia, i. 302 ; appoints justices of the peace, i. 303 ; chair- man of provincial council, i. 304 ; controlled by provincial council, i. 303, 304 ; duties of, i. 302 ; opens provincial diet, i. 310 ; is repre- sentative of ministers, i. 302 Governor in United States, adminis- trative powers of, i. 80 ; appoints and removes civil-service commis- sion, ii. 39 ; colonial, i. 53 ; colon- ial, had few administrative powers, i. 59 ; colonial, a political officer, i. 60 ; of commonwealth, his power of appointment, i. 76 ; compared with President, i. 81 ; control of courts over, i. 82 ; early commonwealth, had few administrative powers, i. 60 ; early commonwealth, apolitical officer, i. 60 ; power of direction of, i. 79 ; history of, i. 74 ; may de- clare state of insurrection, ii. 123 ; his powers over legislation, i. 75 ; a political officer, i. 74 ; political powers of, i. 74 ; power of removal of, i. 78 ; remedies against action of, i. 82 ; veto power of, i. 75 ; common law writs, will not issue to, ii. 208 fNDEX. 3'7 Governor's council in United States, i. 102 Grants in aid in England, i. 263 ; in Prussia, i. 313 Guardians, poor-law in England, i. 248 H Habeas corpus, purpose of, ii. 200. (See Writs, common law.) Hardenberg, chancellor of Prussia, i. 298 ; effect of death of, in 1822, i. 298 ; influence of, on Prussian local administration, i. 297 Heads of departments, i. 134 ; agents of, in the localities, i. 159; in American commonwealths indepen- dent of governor, i. 136 ; appeals to, i. 153, 157 ; in France depen- dent upon president of council of ministers, i. 139 ; in Germany, i. 139 ; in United States, i. 134 ; miscellaneous powers of, i. 157 ; ordinance power of, i. 156; power of appointment of, i. 146 ; power of direction and supervision of, i. 150 ; power of removal of, i. 149 ; remedies against the action of, i. 158 ; term and tenure of, in Eng- land, i. 142 ; in France, i. 138 ; in Germany, i. 139 ; in United States, i. 142 ; in United States national government dependent upon Presi- dent, i. 136 ; i. 127. (See Executive departments.) Hereditary magistracy in Prussia, abolition of, i. 316, 319 Higher civil service in England, ii. 52 ; in Germany, ii. 49 Higher division clerks in England, ii. 54 Honorary offices, ii. 8 ; acceptance of, not obligatory in France, ii. 24 ; acceptance of, often obligatory in Germany, ii. 24 ; acceptance of, obligatory in United States, ii. 23 Impeachment, ii. 296 Imperial court at Leipsic in Germany finally decides conflicts of jurisdic- tion, ii. 258 Imperial fortress belt commission in Germany, ii. 246 Imperial marine office in Germany, ii. 247 Imperial patent office in Germany, ii. 246 Imperial poor-law board in Germany, ii. 245 Imperial railway court in Germany, ii. 246 Incompatible offices, ii. 95 Ineligibility, effect of, on election, ii. 22 Injunction, not issued unless case can be brought under regular equitable jurisdiction, ii. 209 ; origin of, ii. 194 ; purpose of, ii. 200. (See Writs, common law.) Instructions of heads of departments, i. 152, 154, 157 Insurrection, state of, declaration of, by governor, i. 75 ; ii. 123 Intellectual capacity, as a qualifica- tion for office, ii. 33, 47, 49, 53 Intendants, French, i, 268 Internal affairs, i. 3 International law, aim of, ii. 137 ; distinguished from administrative law, i. 15 Intruders into office, acts of, void, ii. 26 J Judges, tenure of, on the continent, ii. 170, 197 ; tenure of, in England, ii. 193, 197 ; tenure of, in United States, ii. 198 Judgments against local corporations, collection of, ii. 153 Judicial affairs, i. 3 INDEX. Judicial authorities, executive func- tions of, i. 29 ; do not control po- litical acts of executive, i. 34; relation of administration to, i. 34. {See Courts.) Judicial control, ii. 142 ; analysis of, ii. 144 ; kinds of, ii. 147. (See Con- trol over administration.) Juristic persons vote in Prussia in local elections, i. 322 Justice, administration of, not a local matter, i. 204 Justice of peace in England, adminis- trative duties of, ii. 125 ; in cities, i. 196 ; different from United States, i. 170 ; establishment of, i. 164 ; inde- pendent position of, i. 236 ; judicial duties of, ii. 124 ; an almost purely judicial officer, i. 239 ; ii. 126 ; present position of, i. 239 Justice of peace in Prussia, appointed by governor, i. 303, 318 ; formed on model of English justice of peace, i. 316 ; duties of, i. 317 ; service of, obligatory and unpaid, i. 316 Justice of the peace in United States, early colonies, i. 166 ; an almost purely judicial officer, ii. 126 K King in England, i. 99. (See English Crown.) King in Prussia, appoints the profes- sional members of the district com- mittee, i. 307 ; appoints members of " governments," i .305 ; appoints and dismisses governor, i. 302 ; ap- points landrath, i. 315 ; appoints and dismisses Oberpriisident, i. 302 ; approves by-laws of provinces, i. 311 ; calls provincial diets every two years, i. 310 ; may dissolve provin- cial diets, i. 314 King's bench, court of, ii. 193 Kreis in Prussia, i. 3*4- ($" Circle in Prussia.) Kreisaussehuss in Prussia, i. 315. (See Circle committee.) Krcistag'vh. Prussia, i. 320. (Set Circle diet in Prussia.) Laborers not affected by civil-service rules in United States, ii. 36, 39 Landrath in Prussia, i. 315 ; approves choice of mayors and Schiiffcn, i. 319 ; duties of, i. 315 Legislative acts of executive, i. 28, 35. (See Ordinances.) Legislative control, power of legisla- ture to remedy special administra- tive abuses, ii. 266 ; examination of accounts, ii. 291 ; over expenses, ii. 279 ; over finances, ii. 275 ; history of, ii. 262 ; impeachment, ii. 296 ; power of legislature in Germany and United States to investigate the action of administration, ii. 267 ; over localities in France, i. 279 ; power to remedy special administra- tive abuses in England and France, ii. 271 Legislative functions of, executive, i. 26 Legislative interference in municipal affairs in the United States, i. 21 Legislature, controls the administra- tion, i. 33 ; executive functions of, i. 25 Legislature, the regulator of the ad- ministration, i. 31 ; may provide qualifications for office, ii. 27. (See Legislative control.) Licences, ii. 112 Liens, ii. 121 Local administration, continental method of, i. 266, 290 ; European method of, i. 266 Local administration in England, audit of accounts, i. 260 ; boards of guardians, powers of, i. 249 ; bor- ough council, powers of, i. 256; INDEX. central administrative control, i. 259 ; power of central authorities to compel local action, i. 261 ; chaos in, i. 246 ; disciplinary powers of central authorities over, i. 262 ; grants in aid of, i. 250, 263 ; de- fects of justice of the peace system, i- 235 ; general characteristics of, i. 263 ; history of, to i8th century, i. 162 ; history of, from I7th century, i. 234 ; local government district, i. 258 ; local loans, approval of, i. 260 ; mayor, i. 255 ; municipal al- dermen, i. 255 ; municipal borough, i. 253 ; municipal departments, i. 257 ; municipal elections, i. 255 ; municipal suffrage, i. 255 ; number of authorities for, i. 248 ; the par- ish, i. 250 : parish elections, i. 251 ; reforms of 1834 and 1835, i. 236 ; sanitary authorities in England, i. 249, 257 ; the union, i. 248 ; union elections, i. 249 Local administration in France, i. 268 ; the arrondissement, i. 283 ; central administrative control over, i. 292 ; centralization of, under absolute monarchy, i. 268 ; the commune, i. 285 ; council of the prefecture, i. 274 ; decen- tralization of, since time of Na- poleon, i. 271 ; the department, i. 272 ; departmental commission, i. 275 ; the district, i. 283 ; general characteristics of, i. 292 ; general council of the department, i. 277 ; general grants of local power, i. 292 ; influence on, of French revo- lution, i. 269 ; influence of Napoleon on, i. 271 ; mayor, i. 287 ; Napo- leonic legislation regarding, i. 271 ; professional character of officers, i. 294 ; the prefect, i. 272 ; under- prefect, i. 283 Local administration in Prussia, i. 295 ; influence of Bismarck on, i. 300 ; circle, i. 314 ; circle commit- tee, i. 315; circle diet, i. 320$ cities, i. 328 ; city council, i. 331 ; city departments, i. 334 ; city executive, i. 332 ; the district committee, i. 307 ; central administrative control over, i. 314, 336 ; conservative re- action of 1822-1860, i. 298 ; effect of revolution of 1848 on, i. 298 ; influence of Gneist on, i. 300 ; his- tory of, i. 295 ; influence on, of Frederick William I., i. 295 ; the governor, i. 302 ; ' ' government " board> i. 297, 305 ; influence on, of Hardenberg, i. 297 ; judicial con- trol over, i. 337 ; justice of the peace, i. 316 ; Land rath, i. 315 ; formation of local legislatures in 1822, i. 298 ; the Oberprdsident, i. 302 ; obligatory unpaid service as officer, i. 337 ; the province, i. 301 ; provincial committee, i. 311 ; pro- vincial council, i. 303 ; provincial diet, i. 308 ; provincial director, i. 312 ; reform of 1872 in, i. 299 ; rural circles, i. 321 ; influence on, of Baron Stein, i. 296 ; town offi- cers, i. 318 ; urban circles, i. 321 Local administration in United States, the compromise system, i. 178; city, i. 99 ft seq. ; city council, i. 213; city officers, i. 210, 217 ; constitu- tional provisions protecting powers of localities, i. 227 ; county, i. 166, 178, 185, 189 ; county commissioner, i. 168, 180, 185, 190; county offi- cers, i. 178, 185, 190; decentralized character of, i. 230 ; differences in powers of localities, i. 227 ; elective principle, origin of, i. 167 ; freedom of authorities from central adminis- trative control, i. 228 ; general characteristics of, i. 223 ; great number of authorities, i. 228 ; jus- tice of peace, i. 166, 170; localities, agents of central commonwealth 320 INDEX, government, i. 228 ; mayor, i. 207; early, in middle American colonies, i. 165 ; in New England, i. 165, 185 ; non-professional character of, i. 231 ; original form of, i. 165 ; power of localities to elect officers guaranteed by constitution, i. 225 ; early, in southern colonies, i. 165 ; in the south, i. 189 ; school district, i. 185, 189, 190 ; sheriff, i. 166 ; statutory enumeration of powers of localities, i. 223 ; supervisor, i. 167, *79t '83 ; town, i. 183, 188 ; town meeting, i. 183, 188 ; town officers, i. 183, 188 ; village, i. 220 Local corporations, suits against, ii. 15* Localities, collection of judgments against, ii. 153 ; on continent of Europe, authorities of general powers, i. 43 ; by English and American law, bodies of enumer- ated powers, i. 41 ; in England and the United States not corporations, i. 172; participation of, in admin- istration, i. 38 ; suits against, ii. 152 Localities in United States, i. 174. (See Counties, Towns, Cities, and Local administration.) Local government, administrative con- trol over, i. 45 ; continental method of, i. 43 ; English method of, i. 41 ; legislative control over, i. 43; sphere of, i. 39. (See Local administration.) Local government act of 1888, Eng- lish, i. 238, 241 Local government board in England, powers of, over localities, i. 262, 264 Local government district in England, i. 258 Tx>cal offices, qualifications for, ii. 28 Local police power, ii. in Local powers in Europe, general grant of, i. 266 Local powers in United States, cen- tralization of, in legislature, i. 224 ; statutory enumeration of, i. 223 Local suffrage, in England, i. 241, 249, 251, 254 ; in France, i. 277, 289 ; in Germany, i. 321 ; in United States, i. 178, 217, 221 Locke, his theory of the separation of powers, i. 20 London, i. 265 Lord Palmerston, struggle with Lord John Russell, i. 143 Lower division, clerks of, in England, 55 Lyons, i 293 M Magisterial district, i. 191 Mandamus, to enforce claim for offi- cial pension in England, ii. 76 ; to force delivery of insignia of office, etc., ii. 63 ; to force payment of salary of officers, ii. 73 ; origin of, ii. 194 ; power of federal courts to issue, ii. 211 ; purpose of, ii. 200. (See Writs, common law.) Manor in Prussia, i. 319 Matricular contributions in Germany, i. 119 ; ii. 277, 288 May, when construed as meaning must, ii. 77 Mayor in France, i. 287 ; became elective in 1882, i. 286 ; duties of, i. 288 ; elected by municipal coun- cil, i. 287 ; term of, i. 287 Mayor in Prussia, i. 333 ; elected by town meeting, i. 319. (See Burgo- master in Prussia.) Mayor in United States, duties of, i. 208 ; elected by people, i. 207 ; origin of present position of, i. 207 ; power of appointment of, i. 210 ; power of removal of, i. 211 ; origi- nally elected by city council, i. 207; powers of, increasing of late, i. 208, 210 ; term of office of, i. 207 ; veto power of, i. 212 INDEX. 321 Mayor's courts in United States, i. 205 Military affairs, i. 2 Ministerial responsibility, in England, i. 101 ; ii. 272, 297 ; in France, i. 138 ; ii. 271 ; in Germany, i. 140 Ministers, i. 127, 134 ; irresponsi- bility of, in England and United States, ii. 164. (See Executive de- partments.) Ministers inEngland,must obey prime- minister, i. 143 ; responsible to Parliament for acts of Crown, i. 101 Ministers in France, must obey presi- dent of council of ministers, i. 138 ; responsible for acts of the President, i. 88 Ministers, in Germany, responsible for acts of prince, i. 92, 140 ; not responsible to Parliament, i. 140 ; in Empire, appointed and dismissed on recommendation of the chan- cellor, i. 140 ; in Empire, must obey directions of the chancellor, i. 140 ; in Empire, secretaries of chancellor, i. 140 Minister-president in Germany, i. 141 Minority representation in England, i. 252, 257 Montesquieu, his theory of the separa- tion of powers, i. 20 Municipal borough in England, i. *93 253. (See Local adminis- tration in England and City in England.) Municipal charters in England, i. 197 Municipal citizenship, original, in England, i. 194 ; in Germany, i. 331 ; in United States, i. 217 Municipal corporations, responsibility of, for exercise of private powers, ii. 152. (.Si* City.) Municipal corporations act of 1835, English, i. 238 ; of 1882, English, i- 254 Municipal council in England, duties VOL. II. 21 of, i. 256 ; organization of, i. 254 ; origin of, i. 195 .Municipal council in France, duties of, i. 290 ; elects mayor and depu- ties, i. 287 ; organization of, i. 289 ; sessions of, i. 290 ; term of office, i. 290 Municipal council in Germany, duties of, i. 332 ; organization of, i. 331 Municipal council in United States, decrease of powers of, i. 213 ; finan- cial powers of, i. 214 ; form of, i. 216 ; police powers of , i. 214 ; quali- fications for, i. 217 Municipal departments in United States, i. 210 ; heads of, in United States originally appointed by city council, i. 209 ; heads of, elected by people, i. 209 ; organized often by the commonwealth legislature, i. 209 ; terms of heads of, i. 212 Municipal government in United States, i. 216 Municipal officers in United States entrusted with discharge of general functions, i. 204 ; power of gov- ernor to appoint, i. 225 Municipalities, subject to control of legislature, i. 205 (see Cities) ; in England, i. 253 N Napoleon, legislation of, in France as to communes, i. 286 ; his system of local administration, i. 271 National administration in United States, has become more central- ized, i. 151 Necessity of control over the adminis- tration, ii. 135 Nolle frosegui not a bar to indict- ment, ii. 181, 183 ; who may enter in England, ii. 181 ; who may enter in United States, ii. 183 Norman absolutism, i. 162 Norman administration, i. 162. 3 22 INDEX. Obedience to orders by officers, ii. 82 Oberprdsident in Prussia, i. 302. (See Governor in Prussia.) Obligatory service as officer in Prus- sia, i. 327, 332, 337 ; in United States, i. 232 Octroi taxes in France, i. 291 Office, abandonment of, ii. 97 ; may be abolished by legislative action, ii. 100 ; acceptance of, in United States, ii. 23 ; appointment to, ii. 14 ; board system of, ii. 6 ; not a contract, ii. 368 ; de facto, do not exist, ii. 25 ; definition of, ii. I ; not determined by duties of posi- tion, ii. 3 ; distinguished from em- ployment, ii. 2 ; how filled, ii. 14 ; forbidden, ii. 96 ; incompatible, ii. 95 ; mandamus to obtain possession of, ii. 63 ; methods of organizing, ii. 6 ; method of organizing in France, ii. 7 ; qualifications for, ii. 27 ; qualifications for, ii. 27 ; removal from, ii. 97 ; right of officer to, ii. 62 ; single-headed system in, ii. 6 ; term of, ii. 89 ; trial of title to, ii. 62. Officers, acts of, may not be im- peached collaterally, ii. 26 ; bonds of, ii. 81 ; crimes of, ii. 79 ; de facto, ii. 25 ; definition of, ii. i ; devotion of entire time to official duties, ii. 83 ; duties of, ii. 77 ; duty of good conduct, ii. 84 ; honorary, ii. 8 ; law of, ii. i ; ministerial, not respon- sible when obeying instructions in United States, ii. 166 ; moral duties, of, ii. 82 ; obedience to orders, ii. 82 ; offensive partisanship of, ii, 85 ; pensions of, ii. 74 ; per diem allow- ances of, in United States, ii. 71 ; power of criminal courts to punish, for crimes, ii. 179 ; professional, ii. 8 ; prosecution of, for crimes, in England, ii. 180 : prosecution of, for crimes, in France, ii. 186; prose- cution of, for crimes, in Germany, ii. 1 88 ; prosecution of , for crimes, in United States, ii. 181 ; resigna- tion of, ii. 92 ; responsibility of, for violation of duty, ii. 86 ; respon- sibility of, when obeying orders, ii. 83, 1 66 ; responsibility of, for negli- gence in United States and England, ii. 167 ; rights of, ii. 62 ; right to compensation, ii. 68 ; right to pro- motion, ii. 66 ; right to office, ii. 62 ; right to special protection, ii 64 ; may sue for salary, ii. 72 ; suits against, for damages, in England and United States, ii. 163 ; in France, ii. 172 ; in Ger- many, ii. 176; suits against, in Roman law, ii. 169 ; who are, in United States federal administra- tion, ii. 4 Official duties, violation of, criminally punishable, i. 231 Official relation, termination of, ii. 89 Orders in council, i. 124 Orders of administration, i. 35 ; ii. 112 Ordinances in general, i. 28 ; ad- ministrative, ii. no ; difference between them and ministerial in- structions, i. 57 ; on continent of Europe, ii. in ; in England, i. 124; in France, i. 85 ; in United States, i. 72, 80 Ordinance power, delegated, i. 29 ; of English Crown, i. 101 ; of exec- utive, i. 28 ; of Federal Council in Germany, i. 118 ; of French prefect, i. 273 ; of French Presi- dent, i. 85 ; of German prince, i. 92 ; of heads of departments, i. 151 ; independent, i. 28; of Presi- dent of United States, i. 72 ; supple- mentary, i. 28 INDEX, 323 Ordinary, administrative functions of in Georgia, i. 191 Overseers of the poor, in England, i. 251 Paris, i. 293 Parish in England, i. 250 ; origin of, i. 164 Parliamentary responsibility of minis- ters in England, i. 144 Pass examinations in Germany, ii. 51 ; in United States, ii. 41 ; Pays d' fiats in France, i. 269 Penalties, imposition of by adminis- tration, ii. 1 20 Pensions, official, ii. 74 Per diem allowances of officers in United States, i. 231 ; ii. 71 Permissive acts, in England, i. 251 ; when peremptory, ii. 78 Permanent annual appropriations in United States, ii. 284 Permanent civil service, in England, ii. 53 ; in United States, ii. 36 Petition of right, ii. 154 Physical capacity as a qualification for office, ii. 33 Physical force, application of, by the administration, ii. 122 Police, not a local matter, i. 204 Police courts, power of, to control administration, ii. 178 Police power, local, ii. in; of French mayor, i. 288 ; of French prefect, i. 273 ; of Prussian governor, i. 303 Police ordinances, central approval of local, ii. 112 Political acts of executive, i. 54 Political civil service in England, ii. 52 ; in United States, ii. 36 Political function of executive power, i. 49 Political qualifications for office un- constitutional, ii. 27 Poor-law amendment act of 1834, English, i. 237 Poor-law union in England, i. 248 Popular sovereignty, influence of theory of, on office of governor, i. 56, 57, 59 Posse comitatus, ii. 123 Power of removal, ii. 97 ; in Ger- many, ii. 100 ; in United States, does not include power to suspend, ii. loo Precepts, i. 36 Prefect in France, how appointed, i. 272 ; is to approve certain resolu- tions of municipal council, i. 290 ; control of, over mayor, i. 287, 289 ; duties of, i. 273 ; " raises the con- flict," ii. 259 Premier in England, i. 143 Prerogative writs, origin of, ii. 195 Preservation of the peace not a local matter, i. 204 President of council of ministers, in France at the head of the adminis- tration, i. 139 ; in Germany, i. 141 President of France, administrative powers of, i. 83 ; power of appoint- ment of, i. 83, 109 ; general position of, i. 83 ; power of direction of, i. 84 ; appoints and dismisses prefects and under-prefects, i. 272, 284 ; is to approve budget of general coun- cils of the departments, i. 280 ; may dissolve general councils of the de- partments, i. 277 ; may veto certain resolutions of general councils of departments, i. 280 ; may call extra sessions of general councils of de- partments, i. 278 ; ordinance power of, i. 85 ; power of removal of, i. 84 ; may remove mayors, i. 287 ; remedies against his action, i. 87 ; responsibility of, i. 85 President of United States, adminis- trative powers of, i. 72 ; appeals to, i. 73 ; appoints and removes civil- 324 INDEX. service commission, ii. 39 ; common law writs will not issue to, ii. 208 ; power of direction of, i. 66 ; duty to execute the laws, i. 72 ; com- pared with governor of common- wealth, i. 81; history of office, i. 62; irresponsibility of, ii. 164 ; may call out military forces, ii. 123 ; may order nolle prosequi to be entered, ii. 1 86 ; ordinance power of, i. 72 ; original position of, i. 62 ; powers of, i. 62, 71 ; effect on office of the power of removal, i. 64 ; power of removal of, i. 64 ; present position of, i. 69 ; remedies against action of, i. 73 ; responsibility of, i. 73 Prime-minister in England, i. 143 Private law, aim of, ii. 137 ; distin- guished from administrative law, i. 14 Privilegium de non appellando in Ger- many, ii. 170, 240 Privy Council in England, appeals to, ii. 195 ; committees of, i. 125 ; controlled by cabinet, i. 143 ; func- tions of, i. 124 ; history of, 122 ; organization of, i. 123 ; original composition of, i. 123 ; original functions of, i. 122 ; sessions of, i. 124 ; members of, may alone advise Crown, i. 109, 125 ; quorum of, i. 124 Probation, in German civil service, ii. 50 ; in United States, ii. 44 Procedure of administration, ii. 115 Professional offices, ii. 8 ; acceptance of, not obligatory, ii. 23 Professional officers in France, ineli- gible for local offices, i. 277 ; in French local administration, i. 294 Prohibition, power of federal courts to issue, ii. 212 ; purpose of, ii. 200. (See Writs, common law.) Promotion of officers, ii. 66 Promotion of public welfare by ad- ministration, ii. 104, 136 Property qualifications, see Qualifica- tions for office Province in Prussia, i. 301 ; revenue of, i. 313. (See Local administra- tion in Prussia.) Provincial assemblies in France, at- tempt to introduce under Louis XVI. , i. 269 Provincial committee in Prussia, i. 31 1 ; appoints lay members of the district committee, i. 307 ; duties of, it 312 ; elected by provincial diet, i. 311 ; duties of, i. 314 Provincial diet in Prussia, duties of, i. 310 ; elects provincial committee, i. 311 ; elects lay members of pro- vincial council, i. 304 ; elects pro- vincial officers, i. 311 ; organization of, i. 309 Provincial officers in Prussia receive no pay, i. 312 Provinzialaussckuss in Prussia, i. 311. (See Provincial committee in Prus- sia.) Provinziallandtag in Prussia, i. 308. (See Provincial diet in Prussia.) Provinzialratk in Prussia, i. 303. Prosecution of officers, private prose- cution, ii. 180; public prosecution of, ii. 1 86 Public business, distinguished from private business, i. 10 Public ends, i. 38 Qualifications for appointed officers, ii. 29 Qualifications for appointed officers in United States, age, ii. 29; citizen- ship, ii. 30; intellectual capacity, ii. 33 ; loss of, ii. 95 ; political un- constitutional, ii. 27 ; religious un- constitutional, ii. 27 ; residence, ii. 29 ; time when they must exist, ii. 29 INDEX. 3 2 5 Qualifications for office in England, ii. 52 ; in France, ii. 46 ; in Ger- many, i. 48 ; property, i. 218, ii. 29 Qualifications for local officers in Prussia, i. 310 Quarter sessions, court of, in England, appeals to, ii. 196, 214 Quasi corporations, distinguished from municipal corporations pro- per, i. 202, ii. 152. (See Towns and Counties.) Quo ivarranto, against cities in Eng- land, i. 197 ; not used to try title to offices of uncertain term, ii. 62, note; not used when special tribunals have been formed to try title to office, ii. 63 ; power of federal courts to issue, ii. 212. (See Writs, common law.) Receipts of government, when fixed by permanent law, ii. 275 Recorder of New York City, i. 207 Recorder's courts, i. 205 Referendarius in German civil ser- vice, ii. 50 Reform bill of 1832 in England, i. 235 Regierung in Prussia, i. 305. (See " Government " in Prussia.) Regierungsprdsident in Prussia, i. 305. (See "Government" president in Prussia.) Registration of papers by the admin- istration, ii. 131 Registration of voters acts, ii. 18 Religious qualifications for office un- constitutional, ii. 27 Removal from office, ii. 97 Representation in Prussia based on property, i. 320 Residence as a qualification for office in United States, ii. 28, 30 Resignation of officers, ii. 92 Revolution of 1848 in Prussia, ef- fect of, on local administration, i. 298 Richelieu, influence of on French local administration, i. 268 Rights of officers, ii. 62. ( See Officers.) " Rings," ii. 17 Rotation in office in United States, ii. 91 Russell, Lord John, struggle with Lord Palmerston, i. 143 Salaries of officers, ii. 68 ; may not be assigned, ii. 71 ; not based on con- tract but on statute, ii. 68 ; not di- minished nor lost by sickness or in- ability to do work, ii. 70 ; how fixed, ii. 69 ; how fixed in amount, ii. 70 ; not subject to garnishment, ii. 71 ; how payment of is enforced, ii. 72 ; may be reduced during term, ii. 69 Sanction of local police ordinances, ii. in Sanitary districts in England, i. 249, 258 Scho/en in Prussia, i. 319 School attendance committee in Eng- land, i. 251 School districts in England, i. 252, 254, 257; in United States, i. 185, 189, 190 Secrecy of ballot, ii. 21 Secretariat of State, English, i. 129 Secretary of Treasury in United States, power of, over collectors of customs, i. 153 Selectmen, i. 170, 188 Select vestry in England, i. 251 Self-government system of administra- tion, ii. 8 et. seq. Self-government, the administrative system of the United States, ii. Q 326 INDEX. Senate, United States, control of com- monwealth over administrative acts of governor, i. 104 ; control over administrative powers of President, i. 103 ; control over political acts of President, i. 103 ; an executive council, i. 102, 104 ; federal and commonwealth compared, i. 105 ; sessions of, i. 103 Senate appointments not affected by civil-service rules in the United States, ii. 36, 39 Separation of powers, the theory of, i. 19 ; exceptions to the theory of, i. 25 ; influence of theory on United States executive, i. 56, 57, 59; theory of, discarded by modern political science, i. 20 ; theory of, a part of American law, i. 24 ; theory of, stated, i. 22 ; theory of, not the same in different countries, i. 21, 24 Septennate in Germany, ii. 289 Sex, as a qualification for office, ii. Sheriff, i. 162; in North Carolina and Tennessee, i. 190; in United States, i. 166 ; may call out posse comitatus, ii. 123 Soldiers and sailors, honorably dis- charged, preferred in appointment to office, ii. 31, 44, 52 Special and local legislation in France, i. 112 Special protection, right of officers to, ii. 64 Stadtausschuss in Prussia, i. 315. (See City committee in Prussia.) Staff appointments in English civil service, ii. 53 Star chamber, ii. 195 ; abolition of, i. 123 State, ends of, i. 38 ; suits by or against, ii. 149, 154 State governor, i. 80. (See Governor in United States.) State ministry in Germany, i. 14 State officers. (See Heads of depart- ments.) State secrets, revealing of, by officers, treason, ii. 82 Statistics, ii. 133 Statutes, conditional, ii. 109 ; direc- tory in form, when mandatory, ii. 77 ; penal, i. 16 ; ii. 106 ; uncon- ditional, ii. 106 Statutory enumeration of local pbwert in United States, i. 223 Stein, Baron, influence of, on Prussian local administration, i. 296 ; influ- ence of, on Prussian municipal gov- ernment, i. 328 ; " political testa* ment " of, i. 296 note Subaltern service in German civil ser% vice, ii. 51 Suffrage, municipal, in England, i. 254 ; municipal, in France, i. 289 ; municipal, in Prussia, i. 331 ; municipal, in United States, i. 217 Suits by or against the government, ii. 149, 154 Superannuation allowances of offi- cers, ii. 74 Supervisor in United States, origin of, i. 167 ; powers, of i. 180, 183 Taxes, collected by summary proce- dure, ii. 126 Taxing power of cities in United States, i. 201 Technical administrative service in Prussia, ii. 49 Tenure of office acts in United States, i. 65 ; effect of repeal of, on power of United States Senate, i. 103 Term of office, expiration of, ii. 89 Term of office acts in United States, ii. 90 INDEX. 327 Term of probation in civil service, in England, ii. 55; in France, ii. 48 ; in Germany, ii. 50, 52 ; in United States, ii. 44 Territorial distribution of administra- tive functions, i. 38 Title to office, trial of, ii. 62 Torts, responsibility of government for, ii. 159 ; in continental Europe, ii. 161 ; in England and United States, ii. 155, 157 Torts of local corporations, ii. 152 Town in the United States, town board, i. 184 ; not originally a cor- poration, i. 171 ; an agent of cen- tral government, i. 173 ; corporate capacity of, i. 173 ; is a corporation, i. 172 ; different from English parish, i. 170 ; in New England, i. 188 ; in New York, i. 170, 183 ; in northwest, i. 183 ; number of offi- cers of, i. 170 ; officers of, in com- promise system, i. 184 ; officers of, elected, i. 185 ; officers of, elected from beginning, i. 170 ; origin of, i. 169 ; in Pennsylvania, i. 171 ; has no sphere of independent action, i. 176 ; in the south, i. 192 ; super- visor of, i. 183 ; trustee of, i. 184 Town meeting, in Prussia, i. 318 ; in United States, i. 183, 188 Town officers in Prussia, i. 318 Township, see Town. Tribunal of conflicts in France, ii. 258 Turgot, reforms of, ii. 218 U Under-prefect in France, i. 284 Unjust enrichment, suits against offi- cers on theory of, ii. 155, 159 Unpaid official service in United States, i. 232 ; ii. 69 Urban circles in Prussia, i. 321 Vestry in England, i. 251 Veto power, i. 27. (See President of United States and Governor.) Vice-comes, i. 163 Village in United States, i. 218 ; board of trustees of, i. 220 ; distinction of, from city, i. 219 ; general position of, i. 218 ; a full municipal cor- poration, i. 219 ; officers of, i. 220 ; organization of, i. 220 ; suffrage in, i. 221 Voters, qualifications of, in United States, ii. 18 Voting, method of, ii. 20 W Warrants, i. 31 William I. of Prussia, accession of, i. 299 Woman suffrage in Prussian local elections, i. 322 Women eligible for school offices, ii. 28 Writs, common law, ii. 200 ; will not issue where there is an adequate remedy, ii. 203 ; origin of, ii. 193 ; prerogative in character, ii. 2O2 ; purpose of, 204 ; questions consid- ered on, ii. 205 Writs ex debitojustitia, ii. 195 Writs, prerogative, ii. 195 Zeugniss der Reife necessary for en- trance into German civil service, ii. 52 RETURN CIRCULATION DEPARTMENT TO ^ 202 Main Library LOAN PERIOD 1 2 3 HOME USE 456 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS 1-month to** may be rw**wd *y o*mnt 642-3465 1-year Joans may tw rachargad by brtnftog ttw boo* to the Ctroulatten OesH Renewals and rechargiw mat t *<* *