Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

CHAPTER 10
Usurpation in Administrative Law

“Administrative law is ‘case law made not by judges but by government officials.'”

Dicey

“There is certainly danger in these delegations of preeminent trust.”

Hallam

“Common report or private information was at once indictment and evidence, and accusation was in itself condemnation.”

Froude

“The history of both France and Prussia is the record of the building up of a consolidated and powerful state by means of a great bureaucracy, directed from a single centre and pursuing a uniform policy; and so, in both countries, the people became accustomed to look to that centre, to the monarch and his officials for guidance in all affairs. . .. Administrative law ‘relates to the organization and working of the national executive both central and local.'”

Prof. Ashley

“The little band of 167 special deputies, agents, and inspectors on the pay rolls of the government ten years ago has been swelled to an army of more than three thousand.”

Senator Foraker, Cleveland, December 21, 1907

IN no branch of law today is there so great necessity for clear and definite ideas as in administrative law. The numerous commissions described in the last chapter, their existence in every state of the Union, the rapidity of their growth, the complexity of modern commercial life, the power of interstate commerce commissions to fix the rates of railways, the multiplication of commissions in the national government, the imperial domain peopled by tens of millions of people, and the great consolidation of economic interests, together with the impatience of our people for quick results, are all forces which, unless checked, will increase the field of administrative law. Just in proportion as it is increased the rights and liberties of the citizen will be abridged.

The nature of administrative law can be better determined by a description of its sources and its operation than by a definition. Administrative law is made by the rulings of a multitude of commissioners, and the heads and officials of departments in both the national and state governments. It involves the administration of all these commissions and departments. Private law regulates the relations of individuals between themselves and is administered by the courts. Administrative law, in the main, regulates the relations between the individual citizen in the state and the state itself as represented by its officials. Of course this does not include criminal law nor constitutional law, but administrative law is the supplemental and detailed application of all laws passed pursuant to the Constitution, and includes the nature of the relations between the administration and its agents, on the one side, and the private citizen, on the other, whenever he comes in contact with mere administrative officers. The making of by-laws, the assessment of taxes, the fixing of rates by the Interstate Commerce Commission, the decisions of the Secretary of War requiring the removal or alteration of bridges upon the ground that they have become an obstruction to navigation, the decisions of each of the heads of departments, the determination of values of imported goods by the customs appraisers, the decisions of the superintendent of education, the boards of health, the boards of fish and game protectors, and of hundreds of commissions created under the national and state governments, these all afford illustrations of administrative law.

The number of commissions has been so great in recent years that it may be well said that we have government by commission. In 1903 alone, about 140 new permanent state boards and offices were created, as well as some 75 temporary commissions and 39 investigating committees.239 Scores of statutes are being passed every year giving to governmental agencies more power with the idea of remedying abuses. The worse the abuse sought to be remedied the greater the temptation to exercise arbitrary power by the commissions. We look with interest to the Russian bureaucracy, but we fail to observe that we are drifting toward just such absolute government at home. We are a republic in the Occident ruled largely by commissions, and an empire in the orient ruled by military power. From year to year we are adopting precisely the same methods of bureaucratic government that have long existed in France, Russia, and Prussia.

One of the most terrible abuses of administrative law in recent years was involved in the decision of the United States Supreme Court in the case entitled United States against Ju Toy.240 Ju Toy, in the year 1903, was a passenger on the steamship Dorick, returning from China to San Francisco. The immigration officers of San Francisco detained him as a person not allowed to enter the country under our laws. Ju Toy declared that he was born in the United States, had always lived here, and that they had no right to turn him over to the master of the vessel to be returned to China. Now observe the kind of a hearing he had. The rules of the Immigration Bureau require its officers to prevent communication between a Chinese immigrant and anyone aside from the immigration officers. They conduct a private examination to determine whether he has the right to land, the head of the commission designating the only witnesses who may be present upon the examination. Generally no opportunity is given to the person to procure counsel. After such a hearing as this, Ju Toy was held by the Commissioner of Immigration as not entitled to admission. The only remedy for such a decision is an appeal to the Secretary of the Treasury.241 The person who has been tried and found not entitled to enter the country must take this appeal within two days after the decision. Within three days thereafter the record must be sent to the Secretary of the Treasury at Washington. The rules of the Department require that every doubtful question shall be settled in favor of the government, and that the burden of proof in such a case rests upon the person claiming- the right of admission. The Secretary of the Treasury heard this appeal and affirmed the decision.

Then Ju Toy procured a writ of habeas corpus from a District Judge of the United States, alleging that he had been born in the United States, that he was a citizen thereof, that he had gone to China on a visit, and that he had returned to this country and had been denied admission by the head of the Commission of Immigration, that an appeal had been taken to the Secretary of the Treasury, and that the decision had been affirmed, and that he was wrongfully deprived of his liberty. The District Judge granted the writ of habeas corpus, and upon the return thereof the Court refused to dismiss the writ, but appointed a referee to take the testimony of the witnesses, and report his findings of fact as to whether Ju Toy had been born in this country and was a citizen. After a thorough examination the referee found, as a matter of fact, that Ju Toy was a citizen of the United States, and this decision was confirmed by the District Court.

An appeal was taken from this decision to the Circuit Court of the United States, and the Court, being divided as to the correctness of the decision, certified interrogatories to the United States Supreme Court. The important question certified was this: “Should the court treat the finding and action of such executive officers” (referring to the Immigration Commissioner and the Secretary of the Treasury) “upon the question of citizenship and other questions of fact as having been made by a tribunal authorized to decide the same and as final and conclusive, unless it be made affirmatively to appear that such officers, in the case submitted to them, abused the discretion vested in them, or in some other way, in hearing and determining the same committed prejudicial error.” The United States Supreme Court, Mr. Justice Holmes writing the opinion, found, as a matter of law, that it mattered not whether this man was a citizen of the United States or not, if this administrative tribunal, the Commissioners of Immigration, decided that he had not been born in the United States, and was not entitled to enter the country, and the Secretary of the Treasury upon the evidence taken confirmed that finding on appeal, that it was conclusive, and that there was no redress for Ju Toy. Justices Brewer, Peckham, and Day dissented, Justice Brewer writing a vigorous opinion.

So we have this condition: if a Chinaman is born in the United States and unquestionably is a citizen of this country, and goes back to China for a visit and returns, and is subjected to such a summary trial as to citizenship and found by the Immigration Commissioner not to have been a citizen, and the papers are certified to the Secretary of the Treasury who determines that the decision of the Commissioner is correct, the man must be banished from the country, although he is a citizen, because the finding of the Commission, under such circumstances, is conclusive upon him, and no court has the power to interpose and protect his liberties.

Outside of Russia and Turkey there is not a country in Europe today where it would be possible for such a wrong to occur. The result of such a decision is so far-reaching in its effects as to imperil the liberty of every citizen in this country. If the United States Supreme Court can make the decisions of such administrative bodies binding upon the citizen, under rules and regulations where it is practically impossible for him to protect himself, and he can be banished from the country and deprived of his constitutional rights in this manner, his liberty is not worth a fig. The learned Justice writing this opinion says: “If, for the purpose of argument, we assume that the Fifth Amendment applies to him, and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him due process of law does not require a judicial trial.”242 Due process of law before a commission — without an opportunity to talk with anyone but the officers, without opportunity to procure witnesses, without chance to cross-examine witnesses, without any counsel, with the whole matter involving a right almost as dear as life itself disposed of summarily by administrative officials in a country where the Bill of Rights, which has secured to Englishmen their liberties for hundreds of years, is made a part of the Constitution? The liberty of the citizen is indeed precarious if this is due process of law. Can a citizen of the United States be excluded from his country except in punishment for a crime? Dreyfus, under military rule in France, was tried by court-martial, found guilty, and banished to solitary confinement in a distant island of the Atlantic; and the conditions of his conviction showed more care for the rights of a citizen than existed in this case. The injustice done Dreyfus eventually created a great disturbance even in France, and our people and all other liberty-loving people jeered at the French for their disregard of the liberties of a citizen.

Again, Mr. Justice Holmes says: “It is unnecessary to repeat the often quoted remarks of Mr. Justice Curtis, speaking for the whole court in Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How., 272, 280, to show that the requirement of a judicial trial does not prevail in every case.” Yet the case cited by the learned judge was a mere distress warrant issued by the solicitor of the United States Treasury, involving simply the rights of property, and the court in that case said: “To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination.” Is that case a justification for banishing a man from his own country to avoid holding that a mere administrative tribunals decision was not conclusive. Thus Ju Toy was compelled to suffer banishment, and was not permitted to be relieved by a writ of habeas corpus even after a referee had reported that he was a citizen of the United States.

We are given to boasting of our liberties. We pity the Chinamen subject to arbitrary power. The Emperor of China is said to have the right, after examination and determination that one of his subjects has committed a crime, to drive bamboo splinters under the disrespectful finger nails of the subject, and then chop off his head to relieve the pain. Such exercise of power, however, is little more arbitrary than that which the United States Supreme Court approved in the Ju Toy case. We are told in these days that the law should be administered upon considerations “of what is expedient for the community concerned,” and “that views of public policy should control “; and Mr. Justice Holmes, in the Youth’s Companion, some time ago said: “A system of law at any time is the result of present needs and present notions and of what is wise and right on the one hand, and on the other of rules handed down from the earliest states of society and embodying needs and notions which more or less have passed away.” The present notions of men as to what is wise and right is not law, and to allow it to subvert the constitutional guarantees of personal liberty endangers every man’s freedom. If the security which the Constitution has afforded to the citizen is unnecessary, and the first eight amendments embody “needs and notions which more or less have passed away,” then the people should be allowed to determine that question and not the courts. Amendment to the Constitution by judicial construction is simply usurpation, and is especially blameworthy because it is done by those who are the guardians of the people’s rights.

The truth is that for the last fifteen years momentous changes have been going on of which the people take little note. During this period the rights of property, through the decisions of the courts, have been growing more and more sacred, while the liberties of the citizen, secured to him by constitutional guarantees, have been gradually impaired. Let us observe an illustration of this change. In January, 1891, the Appellate Supreme Court of Massachusetts, in the case of Miller against Horton,243 Mr. Justice Holmes writing the opinion, held that the decision of the Massachusetts State Commissioners on Contagious Diseases among Domestic Animals to the effect that the plaintiff’s horse was affected by glanders and directing the Board of Health of Rehoboth to kill the horse, would not protect the Board of Health in so doing if it turned out upon the trial that the horse was not affected by glanders, and that the plaintiff in such a case could recover damages from the members of the board. Now a man’s horse, of the value of perhaps a hundred or so dollars, was involved in that decision. A man’s right to live in his own country and the country of his birth was involved in the Ju Toy decision. In the one case the decision of the Commission on Contagious Diseases is held not conclusive. In the other case the decision of the Secretary of the Treasury is held conclusive, although the referee appointed by the District Judge, upon oral evidence taken with opportunity for cross-examination, had reported that Ju Toy was a citizen, and his report had been confirmed. Ju Toy has no legal remedy for this wrong. He cannot sue the Secretary of the Treasury, and his action being in tort is not cognizable before the Court of Claims.244

It was the rights of man which engaged the attention of the political thinkers at the time of the Declaration of Independence. It is the rights of property which absorb the attention of the courts today. Power when interpreted by the one who is to exercise the power is always construed with great latitude. The Immigration Commissioner and the Secretary of the Treasury, according to this decision, exercise exclusive power, and the tendency is to increase that kind of power. Such tribunals generally will have all the power that they choose to exercise. As expressed in the original Constitution of Massachusetts, “A frequent recurrence to the principles of the Constitution is one of the things absolutely necessary to preserve the advantages of liberty and to maintain a free government.” We look upon our government as a thing established and capable of maintaining itself without any personal efforts on the part of the citizen. The power to check, held by these commissioners, is often extended into a power to decree and to enact. Their exercise of power is purely arbitrary with apparently no limitation. If the people are not aroused to the danger of the exercise of such power it will not be many years before their liberties are subverted.

Another illustration of the danger of government by the decisions of administrative officers is found in the provision allowing the stoppage of mail by fraud orders. Now it is undoubtedly true that the mails are frequently used for improper purposes, that obscene matter is sent through them, that rascals who should be in state prisons employ them to carry out their nefarious schemes for defrauding simple, credulous people, and that all the abuses exist which Postmaster-General Cortelyou set forth in a recent review article.245 Usurpations of power spring into existence to suppress just such wrongs as exist in the Post-office Department. Government always finds in the existence of similar abuses today excuses for usurpation. President Adams and Congress, in the passage of the Alien and Sedition laws, were seeking to correct real abuses. The conduct of the French immigrants, who had taken advantage of our gratitude to France, was such as to be worthy of punishment. It was the unconstitutional means of securing that punishment which aroused the American people, brought about the defeat of the Federalists, and placed in power the Democratic party for over fifty years. The danger of arbitrary power is always greater where the purposes for which it is exercised are good purposes, because the great majority of men do not see the danger from such exercise if it accomplishes good results. In no other way could arbitrary power take on a form more popular with good men than in attempts to suppress obscene literature, or letters and pamphlets intended to swindle the unwary. Of course we all desire that such men should be punished, but if one is acquainted with human history and its lessons he will never wish even such evils suppressed by the exercise of arbitrary power.

In 1836 President Jackson recommended to Congress the propriety of a law to exclude from the mails anti-slavery literature of an incendiary character. Mr. Calhoun, condemning in the strongest terms such publications, insisted that Congress had no such power because it would abridge the liberty of the press. Daniel Webster acquiesced in this opinion. James Buchanan, at that time Senator from Pennsylvania, supported a bill of this character, on the ground that the power of Congress to carry mails necessarily involved the right to exclude such mails as it saw fit. This bill was voted down. The Post-office Department now proscribes the use of the mails for the carrying of obscene matter and letters or pamphlets intended to defraud; and also, without any provision of law sustaining its action, debars from the mails pamphlets criticising the acts of the national government.

Few Americans have ever given so much time to the reading and studying of political economy and other kindred subjects, upon which the welfare of mankind depends, as the late Edward Atkinson, of Boston. For thirty years or more before his death he never failed to espouse the cause of what he believed to be just, without any hope of reward except the consciousness of having done his duty. He believed that he saw in the imperialistic policy of President McKinley’s administration a great danger to his country, and when Mr. Atkinson was satisfied that his purpose was a good one he was absolutely fearless in carrying out that purpose. The following is his statement of what occurred: “In the latter part of 1898 I privately printed a pamphlet containing two treatises: first, ‘The Cost of a National Crime,’ and second, ‘The Hell of War and its Penalties.’ … In February, 1899, the President had submitted to the dictates of the conspirators against the liberties of the Philippine Islands, and had committed ‘criminal aggression’ upon them. These facts were exposed in a second pamphlet containing a third treatise entitled ‘Criminal Aggression — By Whom Committed?’ … I then learned on apparently authentic information that the volunteers who had enlisted for the War with Spain and for service with Cuba had been sent against their will and against their convictions of right to the Philippine Islands and were there held in service after their terms of enlistment had expired, which to many of them was abhorrent. I also learned on apparently good authority that telegraphic messages from their relatives in this country were not permitted to reach them. This outrage made me think it suitable to send copies of my pamphlets to these volunteers who were held against their will in order that they might know they had support in the maintenance of their rights in this country. To that end I addressed a letter to the Secretary of War asking the addresses of the different regiments, inclosing copies of the pamphlets and announcing my purpose to send them to these troops. I did not discriminate between the volunteers and the soldiers of the regular army, but should not have sent to the latter lest the soldiers themselves should be embarrassed or exposed to hazard by their acceptance. After waiting a sufficient time for reply from Secretary Alger, I mailed eight copies as a test to Admiral George Dewey, Professor Schurman, Professor Worcester, General H. G.
Otis, General Lawton, General Miller, and J. F. Bass, correspondent of Harper’s Weekly. The Secretary of War did not answer my letter, but apparently he and some of his associates were alarmed by my action lest the volunteers held against their will should demand relief from the abhorrent service of slaughtering our allies, and at the instance of the Postmaster-General the Postmaster in San Francisco violated the United States mail and took these pamphlets from it without authority of law and in violation of the rights of citizens.”

Now there can be no doubt that there was nothing in the pamphlet which Mr. Atkinson sent to the Secretary of War, and which he afterwards mailed to Admiral Dewey, Professor Schurman, Professor Worcester, General Otis, and the others, which could have been injurious to them. But that is not the question. He had the legal right, if men have any legal rights left under imperial government, to express his opinions and to send them through the mail to any man, and yet these pamphlets were taken from the mail and destroyed by the order of the Postmaster-General without the slightest authority in law.

Let us now observe the method through which a fraud order is issued by the Post-office Department. Inspectors of the Department are assigned to various sections of the country, with the duty to investigate all cases in their districts in which it is alleged that the mails are being used in violation of the law. When a discovery is made by these inspectors (and what inspector or police officer ever lived that could not discover many things that do not exist?), in the language of Mr. Cortelyou: “When the character of the scheme to defraud is such that its continued operation, during this examination and consideration of the charges, threatens to result in losses to the public, temporary orders are at once issued to the Postmaster simply to withhold the mail pending the inquiry.”246 So to start with, we have the mail of one of the patrons of the Post Office, possibly engaged in a large business, where the withholding of his mail, even for a few days, may result in the practical destruction of his business, having that mail stopped without any hearing and without any chance of explanation. The man who engages in lynching adopts the theory of killing the suspected person and then trying him afterwards. The Postmaster-General exercises the same power of destroying a man’s business, and then giving him a hearing and ascertaining whether he is guilty.

Now having held up the man’s mail, the inspector reports the facts to the Assistant Attorney-General for the Post-office Department and, as Mr. Cortelyou says:

“If these facts establish a prima facie case of fraud, the person or concern involved is at once notified of the pendency and the nature of the charges brought, and is then afforded an opportunity to appear before the Assistant Attorney-General for the Post-office Department, either in person or in writing, or both, making such answers and statements as it may be desired to have the Department consider in disposing of the matter.”

Now the victim of such action may be two or three thousand miles distant from Washington. He is given an opportunity to be heard by the Assistant Attorney-General, who has already passed upon the case. The examination is not one through witnesses, with examination and cross-examination, but is in fact a mere formal examination, and the decision of the Assistant Attorney-General confirmed by the Postmaster-General is absolute, as in the Ju Toy case, upon the rights of the accused.

The right to do business is a legal right. Upon this right is founded most of the injunctions against labor unions and laborers engaged in a strike. Their employers are carrying on the business of manufacturing or some other commendable enterprise. Their men strike, they attempt, possibly by forcible means, to prevent other laboring men from taking their places, and the employer applies to the court for an injunction, which is granted, because the right to do business is a property right, and the action of his late employees is destructive of that right. Now apply this law to the case of a man whose mail is stopped by a fraud order. Such an order practically destroys his business even before a hearing. It will avail him little to go before the Assistant Attorney-General, because upon the evidence of the detective he has already decided the case, and at least before the hearing could be had the man’s business is destroyed.

In 1905 a man by the name of E. G. Lewis was carrying on in the city of St. Louis a business known as the People’s United States Bank. A fraud order was issued against him, and proceedings were taken in the United States Court for the purpose of appointing a receiver of his corporation, and a receiver was appointed. The fraud order was issued against both the corporation and Lewis. All letters thereafter addressed to him personally were returned with the usual word “fraudulent” stamped thereon. A letter from his wife, from his attorney, from any close friend in any part of the world, would have been returned with the word “fraudulent” stamped upon the outside. This fraud order actually shut him off from any intercourse through the mails with any human being and apparently for all time.

Mr. Cortelyou says about such cases:247 “It is particularly true, too, that comparatively little direct evidence can be brought into court against the majority of these fraudulent operators,” and he tells us that it is very difficult to find evidence which will insure the conviction of such operators. We are also assured by him that there is much justification for the remark recently made that “the Post-office Department of the United States is the most effective agency in the world for the detection and prevention of crime and the apprehension of the criminal.”248 Now what have we? The most effective agency in the world for the detection of crime is unable to obtain little evidence against those it accuses, and yet it has issued since the enactment of the present legislation 2,400 fraud orders. I am credibly informed that in the case of Mr. Lewis and his People’s United States Bank, upon liquidation by the receiver, it paid one hundred cents on the dollar with interest in full to creditors, together with dividends to the stockholders of eighty-five per cent.

In the second session of the Fifty-ninth Congress a bill was introduced into the House of Representatives providing that the mail addressed to the person or firm against whom the fraud order is issued, instead of being stamped “fraudulent” and being returned at once to the senders, should be held in the Post Office for fifteen days before being sent back. In that period the business concern was permitted to institute an action in the United States Circuit Court, on giving a bond to pay the entire costs of the action in case the fraud order was finally held to be valid. This bill passed the House without a division, but failed to pass the Senate. When the wisdom of the proposed act was being discussed before the Congressional Postal Commission, one of the speakers said:

“We are expected to live up to rulings, regulations, and decisions that we are unable to find and never heard of. The publisher is informed by mail that he has violated some rule, that his publications can be no longer mailed at a second-class rate, but the rule is new to him. His paper is held up until he can find out what is the matter. . . . And when he has his hearing he finds out that it is a purely arbitrary affair, surrounded by none of the safeguards which are allowed other American citizens who are contesting for their right to do business.”

Of course it is not surrounded by any of the safeguards allowed other American citizens, because their safeguards are secured to them by laws and by a regular judicial procedure. On the other hand, administrative tribunals, at least in our own country, have always been arbitrary tribunals depriving the citizen of his property and his good name without any of the safeguards prescribed by law.

In another case, where the publication had been stopped because of alleged obscene matter, an acquaintance of the publisher sought by repeated letters to discover what the precise matter in the publication was which the Post-office Department regarded as objectionable. Finally the only statement which he could procure from the officials was that it was “not practicable for the department to attempt to point out the offensive passages,” and they practically refused to give any information as to what matter contained in the publications suppressed was regarded by them as offensive. In common-law courts the law requires the facts constituting the crime to be specifically stated in the indictment so that the accused may know exactly the offense with which he is charged. He is given the processes of the court to procure his witnesses, and must be confronted with the witnesses against him. How different is all this from administrative tribunals.

This proceeding on the part of the Postmaster-General is quite as arbitrary as any which we find in Russia, Prussia, or Austria. The Russian censor blots out the objectionable parts of the newspapers and permits the rest to go through the mails. But our censor suppresses the whole edition, the good along with the bad. In Austria the business of printing a newspaper cannot be carried on without a license from the government, and every number of the periodical must be submitted to the police before publication, so it may be confiscated if it contains anything contrary to law. The censor is said frequently to order portions of the columns of an article to be stricken out, and with these corrections it is allowed to go forth. All arbitrary governments seek to control the press. And with full knowledge of the results of such methods we are deliberately adopting them. As a general rule no man’s liberty to print or publish ought to be restrained by government for any reason short of thereby protecting the liberty of other men. So important is the public discussion of questions that all assaults of arbitrary government upon liberty have first appeared in limitations upon the press.

Publications entered as second-class mail matter are said to be subject to no less than seven distinct rates. Such discretion reposed in the officials of the Post Office is wide enough to allow them to suppress all periodicals which are found to be injurious to the interests that they cherish. Wilshire’s Magazine was a few years ago excluded from the mail by the Post-office Department. The editor then took his magazine to Canada, where he had no difficulty in securing its entrance to the post office. Three years later a New York printer sought to contract for the publication of this magazine, and to procure its reinstatement in the mails of this country applied to Senator Platt, and the boss easily succeeded in securing at once what years of labor on the part of Wilshire had failed to accomplish. This instance shows the danger of conferring such arbitrary powers upon a department of the government. The Star Chamber, which was abolished in 1641, had as one of its special functions the right to try the offenses of the press. “Press law has long constituted,” says Mr. Dicey, “and still continues to a certain extent a special department of French legislation, and press offenses have been, under every form of government which has existed in France, a more or less special class of crimes.”249 Under Napoleon Bonaparte no one could print a paper without official authorization, and even today the government adopts preventive measures for guarding against the propagation of unsound or dangerous sentiments.

Yet even in France the arbitrary power exercised by our Post-office Department would not be tolerated for a moment. The Gaulois, a Parisian paper, speaking of President Roosevelt’s action in excluding from the mails newspapers printing the details of the Thaw trial, said:

“That no sovereign in Europe unless it be the Czar and the Sultan had the power to do what the American executive had done.”

The Gil Bias, another paper, commented upon the same matter, saying: “Imagine President Fallieres interdicting and expurgating such an account.” If publishers must run the gantlet of such secret and irresponsible postal supervision the freedom of the citizen would seem to be greatly impaired. In England, from whence we drew our principles of English liberty and where happily they still continue, the government has no authority to seize the stock of a publisher because it consists of books, pamphlets, and papers which in the opinion of the government contain seditious or dangerous matter.

There are many other instances of abuse of administrative law. One of these is found in the McKinley Act of 1890. Discriminations were being made in Germany against American meats. The act provided that sugar, tea, coffee, molasses, hides, and other articles should be admitted free of duty. In order to arm the government with means of retaliation, Congress conferred the power upon the President that whenever he should be satisfied that unjust discriminations were being made by any foreign state against the importation or sale of any American product, he might by proclamation impose duties upon sugar, tea, coffee, molasses, hides, or any other articles which, by the terms of the McKinley Bill, were admitted free from the country discriminating against us. Thus the President was given a legislative power belonging to the popular branch of the legislature, originally granted for the protection of the people against arbitrary power. The United States Supreme Court, however, held that this provision of the act imposed administrative powers upon the President and was constitutional, Justices Lamar and Fuller dissenting. Justice Lamar said:”It goes further than that and deputes to the President the power to suspend another section in the same act whenever ‘he may deem the action of any foreign nation producing and exporting the articles named in that section to be reciprocally unequal and unreasonable’; and it further deputes to him the power to continue that suspension and to impose revenue duties on the articles named ‘for such time as he may deem just.'”250

On March 9, 1897, Congress created a commission to regulate the importation of teas, and prohibit them, though in fact pure, when below the standard of quality fixed by the Secretary of the Treasury. That tea commission is now engaged in the exercise of that dangerous power of requiring the reshipment of teas which do not reach the quality which it prescribes, or, in case they are not reshipped, of destroying them. This act also has been declared constitutional.251

There is no such thing as reviewing the action of these administrative boards according to the decision just cited. A recent writer on administrative law observes that our procedure affords even less protection from the arbitrary action of these boards than the French law, though the Bill of Rights is unknown to the French Constitution.252 According to the statement of this same writer state courts have admitted the finality of the decisions of boards of health in respect to nuisances, so that without a hearing a board of health, in many of the states, has been declared capable of determining that a man’s property is a nuisance and binding him by their decision. A different rule, however, prevails in the state of New York.253 In hundreds and even thousands of cases, where these boards are acting within the scope of the statute creating them upon the subject matter therein fully described, their decisions are final and are not subject to review in the courts.254 Mr. Wyman, who is enthusiastically favorable to these commissions, says, however: “Things are done in administrative adjudication which could never be done in judicial processes. Principles are violated in administrative processes which are fundamental in the courts.”255

Ex parte proceedings seem to be just as binding as proceedings upon notice. Even these boards have extensive legislative power. So when a fish and game commission determine that the fish of any brook or stream of the commonwealth are of sufficient value to warrant the prohibition of casting sawdust into the stream where they are found, they may by an order in writing prohibit the same without giving the owner any hearing upon their action.256 Although the executive, legislative, and judicial departments are carefully divided in our form of government, still the legislative department can confer executive duties upon these commissions and their decisions therein are final.257 Judge Jackson, many years ago in the Kentucky and Indiana Bridge case, described these commissions as the referee of each and every Circuit Court of the United States.258 And it has been held that one of them may institute proceedings in the courts and become prosecutor and judge in the same case.

Congress voted, in 1898, the payment over to the President of $50,000,000, and under the power of administrative law he expended it in his own discretion without any check whatever. Under this power of administration in 1899, the Secretary of War sent troops into the state of Idaho, without even the petition of the state authorities; martial law was declared by the War Department, the writ of habeas corpus was suspended, not by the state authorities but by the general in command of the army, and without any warrant whatever he arrested hundreds of men and carried on government by his own will. Mr. Root, at a New York University Law School Banquet, described administrative law under his direction, as Secretary of War, as follows:

“It has been my province during the last four years and a half to deal with arbitrary government. It has been necessary for me not only to make laws and pronounce judgment without any occasion for discussion — except in as far as I would choose to weigh the questions involved in my own mind — affecting ten million people. And not only to make laws and pronounce judgment, but to execute judgment with overwhelming force and great swiftness.”

Under this administrative law the Philippine Commission on June 1, 1903, by Section 6 of an act numbered 781 of the Philippine Commission, provided for the very same kind of reconcentration of the native population for which we drove Weyler and his Spaniards out of Cuba.259

Under administrative law the Secretary of the Interior, by executive order in 1904, decreed that all persons who had served in the army or navy of the United States and had reached the age of sixty-two years, should be presumed to have incurred such disabilities as to entitle them to receive pensions under the Act of Congress approved June 27, 1890. It is under this power that the Interstate Commerce Commission is about to impose rates of traffic upon 200,000 miles of railway in the United States. It is under this administrative power that Secretary Shaw of the Treasury suspended the duties upon importations of coal; accepted, as believed by many, without legal authority, other securities than national bonds to secure the issues of national bank notes; deposited the surplus of the Treasury with national banks in the amount of many millions of dollars, and used all the powers at his disposal to protect and further the interests of these national banks. It is under this administrative power that in all the states of the Union hundreds of commissions are taking the control by license and otherwise of the affairs of men, many of which are not public in their nature.

In the case of the People ex rel Lodes against the Department of Health of New York City, Mr. Justice Gaynor, of the Supreme Court of New York, speaking of this condition, says:260 “Those who meditate a recourse to arbitrary power for a good purpose should pause to consider the consequences, for it is a vice which brings in its train all the vices and especially the detestable vices of official extortion and blackmail. Good men in good times should beware of setting bad precedents for bad men in bad times. The sale of impure milk or other food is bad, but far worse, and fraught with far greater evils, would be the growing exercise by executive officials of powers not conferred on them by law. If they were suffered to require licenses for the ordinary occupations of life, and refuse them to whom they willed, how long would it be before such licenses would be sold for money or for political favor or partisan fidelity?” Commissions of this kind, censors of all kinds, restrictive government, multiplication of penal laws, all these methods have been the methods of arbitrary governments. There is not a step in the decay of the Roman Republic and of the Empire which is not marked by a large amount of just such legislation as I have been describing. The endless repetition of legal commands is the unerring sign of impotence and decadence.

It is important to appreciate whither this administrative government is leading. It differs materially from administrative government in France and other European countries. In all these countries all relations between administrative officers and the citizens, growing out of the official duties of those officers, are regulated entirely in administrative courts. The citizen of France is forbade from the bringing of any action against any administrative officer for an official act without the consent of the French Council of State. This does not apply to acts committed by officials not in the exercise of their authority, as, for instance, where the act is a personal fault or a malicious use of lawful powers. But for all other administrative acts of any name or nature the citizen has no recourse against the official committing the wrongful act under claim of authority, except in an administrative court, where there is scarcely hope of redress.261 These administrative courts are conducted by administrative officials with rules of procedure peculiar to themselves, and with no provision of trial by jury. Will administrative law bring us to the same unfortunate condition?

In Prussia the only remedy of the citizen against an official for a wrong, in the supposed execution of his duty, is to appeal to the authority who supervises the action of that official, or to bring an action before the administrative courts against the official or officials whose conduct is challenged.262 By reason of this fact a considerable part of all the litigation in Continental Europe is carried on before administrative courts dependent upon the head of the state,263 and therefore likely to be safe guardians of the rights of officials. The administrative courts in European countries resent with indignation any attempt on the part of the regular law courts to interfere with their jurisdiction over administrative officials.

There are no strictly technical administrative courts in this country or in England. The public official is liable before our common-law courts for all his torts and wrongs, even though claiming to have performed them in his official capacity. If a board of health wrongfully has declared the property of a citizen to be a nuisance and destroyed it, they are liable in most of the states, at least for damages, in case it was not a nuisance. If they revoke the license of a milk dealer, without a hearing, and for a cause not prescribed by the laws or their written regulations, they are liable, and an equity court will enjoin their action.264 It may be true that in some cases the official can protect himself by a process which is regular upon its face, but in such a case his superior who issues the process, if void, is liable.

These commissioners will come, by and by, to believe that extraordinary powers belong to them; that they can prohibit a legitimate business by refusing to license it, entirely overlooking the fact that they are given the power to regulate business and not to prohibit it. The President, a few days ago, took away the license of a Mississippi steamboat pilot. It will not be many years, if existing conditions prevail, before the national government, through commissions, will be licensing every locomotive engineer and conductor engaged in interstate commerce, and will be licensing every state corporation doing an interstate business. These licenses will be revocable at the will of the President or the head of the Department of Commerce, and hundreds of thousands, if not millions, of men, and all of the corporate interests of the country, will be at the mercy of the national government. So long as these commissions are allowed to exercise judicial and legislative powers, without the right of review on the part of the regular courts, the citizen’s rights are in danger. There is today no menace to his rights so great as administrative decisions. Our English ancestors three centuries ago escaped from the administrative courts of England. Let us beware of the danger of returning in our day to that kind of arbitrary government.


NOTES

   239.   New York State Library Bulletin, Review of Legislation, 1903.
   240.   198 U. S. 253.
   241.   United States v. Sing Tuck, 194 U. S. 161.
   242.   198 U. S. 263.
   243.   152 Mass., 540.
   244.   Goodnow, Comparative Administrative Law, pp. 156-161.
   245.   North American Review, April 19, 1907.
   246.   North American Review, April 19, 1907, p. 809.
   247.   North American Review, April 19, 1907, p. 812.
   248.   North American Review, April 19, 1907, p. 816.
   249.   Dicey, The Law of the Constitution, p. 248.
   250.   Field v. Dark, 143 U. S. 649.
   251.   Buttfield v. Stranahan, 192 U. S. 470.
   252.   Political Sc. Quarterly, Dec., 1906, Bowman, p. 615.
   253.   Copcutt v. Board of Health of City of Yonkers, 140 N. Y., 1. See also p. 12.
   254.   Wyman, Administrative Law, §§112-136; Miller v. Raum, 135 U. S. 200; Oil Company v. Hitchcock, 190 U. S. 316.
   255.   Wyman, Administrative Law, § 119.
   256.   Wyman, Administrative Law, § 121, note; Salem v. Eastern R’y Co., 98 Mass., 431, 443 ; Nelson v. State Board of Health, 186 Mass., 330, 333.
   257.   Harvard Law Review, vol. xx, p. 121; Wyman, Administrative Law, § 121; in re Kollock, 165 U. S. 526; Wyman, Administrative Law, § 133, Note 103 with Cases.
   258.   Harvard Law Review, vol. xx, pp. 123, 124.
   259.   North American Review, Jan. 18, 1907; Blount, Philippine Independence, p.145.
   260.   117 App. Div., 865.
   261.   Dicey, The Law of the Constitution, ch. xii.
   262.   Ashley, Local and Central Government, pp. 302, 303.
   263.   Lowell, Governments and Parties in Cont. Europe, vol. ii, pp. 83, 195.
   264.   People ex rel Lodes v. Department of Health of the State of New York, 117 App. Div., 856.

0