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ciple is involved. The cases discussed in this section indicate in a general way what may be done and what may not be done. What may not be enacted is overt confusion of powers—the giving of a legislative function to the administration. What may be provided is some co-operation between the departments—the lending to the administration of the process of the courts. This, it is suggested, is the solution of this problem in accordance with constitutional law under our system of government with its three departments-independence with inter-relation.1
$ 25. Conclusion.
In a previous discussion a rule was laid down for the position of the administration with two branches. That for action as an individual the officer might be impleaded in the courts as a private wrongdoer; but that for action as an official the officer might not be impleaded. The present discussion of the independence of the administration does not conflict with that. Action of an official as a representative of the executive department the judiciary department can take no cognizance of, still less can it enter upon review upon any appeal; but for individual action without authority of his position the officer may be proceeded against in the courts more or less as any wrongdoer. This is the solution in the administrative law of the United States again, the distinction between the two capacities of the official, as an officer and as a man. As an officer the official stands with his department and may claim its immunity; as a man he stands in the same place as other men. That is certainly, when all is said, the characteristic of the administrative law under our system, that these capacities are never in any material way to be confused. And the consequence is a free government, acting within its discretion, and a free people, protected in all their rights. This is the peculiar . distinction of our system of administrative law. (98)
19 CONFUSION.—La Abra Co. v. United States, 175 U. S. 423; Western Union Tel. Co. v. Henderson, 68 Fed. 588; Ex Parte Allen, 26 Ark. 9; Ex Parte Cox, 63 Cal. 21; State v. Johnson, 30 Fla. 499; People v. Kipley, 171 Ill. 44; Shoultz v. McPheeters, 79 Ind. 373; In Re Sims, 54 Kan. 1; Speed v. Crawford, 3 Metc. (Ky.) 207; Hartford Insurance Co. v. Raymond, 70 Mich. 485; State v. Hathaway, 115 Mo. 36; Thorp v. Woolman, 1 Mont. 168; Turner v. Althaus, 6 Neb. 54; Taylor v. Place, 4 R. I. 338; Gough v. Dorsey, 27 Wis. 119.
THE POWERS OF ADMINISTRATION.
$ 26. Introduction.
27. Political Powers.
The functions of the administration are of two sorts. To put the distinction in the more usual terms, these are: its executive functions and its administrative functions. The administration in truth has this double aspect; but these functions are in one sense interdependent. In the pursuance of its executive functions, the administration exercises inherent powers; while in its administrative functions, it performs derivative duties. In an extended discussion of this situation it may be said that the executive functions are powers, while the administrative functions are duties; but in truth in each case there is power and duty both.
Executive powers, then, are inherent, because the basis of them is the constitution itself. In the exercise of executive powers the executive is upon the same basis as the legislative or judiciary. The action of all of these alike is the expression of the will of the state. In such acts the executive is the head of the state; he conducts foreign negotiations; he leads armies; he grants amnesty; he promulgates proclamations. Executive powers are primary; in every such action the executive acts of his own motion, makes his own decisions, draws his own conclusions, enforces his own decrees. As it is this aspect of the administration that one is prone to think of when comparing the functions of this department with the legislative department and with the judiciary department, the department is in most discussion denominated the executive department.
Administrative duties are derivative. The direction of these functions is to the enforcement of the laws; the laws must therefore precede the exercise of these functions. There must be law for enforcement before there can be administration; the functions of the legislature, therefore, must be first exercised, these in turn creating duties for the administration to perform. Administrative functions, then, are secondary in a way, since the duty is to enforce a general law made and provided in a particular case. Enforcement of the law may then be conceived of as itself obedience to the command of the law. But the command of the law is not often absolute; it is in the usual case conditional, so that the officer has an independent position in his discretion.
Such is the distinction between executive powers and administrative duties which is proposed as the basis for discussion. And yet, after all, it may prove that the distinction between these two does not go to the bottom; at bottom they may be alike in essentials. In pursuance of administrative functions, the department may well require the position of an executive. More than this, in seeing the laws faithfully executed the head of the department may prove in truth an executive. At all events the administration in the exercise of executive and administrative powers together presents a certain unity to the observer, as if the business of the administration were all one, after all, however difficult it may be to explain this. $ 27. Political powers.
One of the highest powers of the executive is seen in the determination of political questions. It may be well to give several instances of the exercise of such powers; since in no other line of cases is the position of the executive so well established. One of the earlier decisions upon this question is Foster v. Neilson, 2 Pet. 253 (1829). This case arose under the eighth article of the treaty between the United States and Spain in 1818, which provided for the determination of private rights. It was a suit brought to recover a tract of land to the east of the Mississippi, claiming upon a grant made by the Spanish government in 1804. The exception involved the defense that the grant was void; upon the ground that the territory in question at the time of the grant belonged to the United States, pot to Spain. How should such an issue be determined ?
The opinion in this case has weight in a constitutional discussion, as it is by Chief Justice MARSHALL. The question presented is, to whom did the country between the Iberville and Perdido rightfully belong when the title now asserted was acquired. The question has been repeatedly discussed by the government of the United States with that of Spain. In a controversy between two nations concerning national boundaries it is scarcely