§ 41. Conclusion.

It is hoped that nothing that has been said in this chapter is inconsistent with what has been said in the previous discussion or with what is said in the subsequent discussion. This is a comprehensive chapter in a way; for the whole doctrine of administrative law is involved. This chapter deals with the functions of the administration as a whole. In one view it shows how far these functions go; how that in most of its functions the methods and means of administration are within the discretion of the department; and that therefore in the exercise of this discretion the department is independent, so that no other department can inquire what has been done within the scope of these functions. In another view it shows how soon these functions are limited; how that in all actions the administration is subject to the supremacy of the law of the land, so that if an officer of the administration is ever found without law to justify his action he is liable to any process the courts may send against him. This is the whole of administrative law in general outline; it remains to fill in the detail.

According to the obvious distribution of the functions of government, it is the legislature which makes the laws; it is the executive which enforces the laws; it is the judiciary that adjudicates upon the laws. Without doubt this enforcement of the laws is the principal business of the administration. Without enforcement of the laws, government would come to its end; the

R. R. v. Jenkins, 68 N. C. 502; State v. Chase, 5 Oh. St. 528; Com. monwealth v. Lyter, 162 Pa. St. 50; Peters v. Auditor, 33 Grat.

368.

administration is the life of the government. It is now recognized at last that it is in its administration that a government succeeds or fails; no advance can be made. unless the administration takes up the work. To get at the real business of government, therefore, it is necessary to make a careful study of the working of the administration. And that requires an insight into the nature of the function of the administration. Administrative duties may then be defined as those functions which are directed to the enforcement of the laws. That the executive shall see that the laws are faithfully executed is the common phrase of the constitutions. The aim of this discussion is to arrive at some idea of the nature of the duties of the administration.

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One of the most particular parts of the law govern ing administration is that which is concerned with membership in the administration. One of the elements of the situation is the officer himself, considered apart. What is the selection of the officer-election or appointment? What is the term of the officer-term or pleasure? How is the removal of the officer-arbitrary or judicial? Upon all of these questions concerning the officer as a member of the association there is an elaborate law. It is to be outlined but briefly in this discussion.

§ 43. Classification of officials.

The first question in the organization of the administration is concerning its component parts. These are the office and the employment; the principal agencies

of the administration are its officers, the minor agencies are its employees. The emphasis of this distinction is upon status rather than upon function. Office is a conception of public law, employment is a conception of private law; the officer is the public agent, the employee is the private agent. That the officer has the principal role in administration is as obvious as that the employee has the minor part. In abstract theory alone it is possible that the administration should contract for the services of a Secretary of State; in any administration that has been known, that position has always been filled by an officer.

Upon this distinction between office and employment the leading case seems to be United States v. Maurice, 2 Brock. 96 (1823). This was an action upon a bond running to the United States given for the faithful discharge of the duties appertaining to his office by an agent of fortifications and his sureties. The defendants insisted that the bond was void, it being taken for the performance of duties of an office, which office had no legal existence, and consequently no legal duties; for no violation of duty, it was urged, could take place where no duty existed. Moreover, it was argued, since the appointment was not given to the Secretary of War by statute, this officer so appointed could be no officer in any case.

Chief Justice MARSHALL, then upon circuit, held: Is the agent of fortifications an officer of the United States? An office is defined to be a public charge or employment, and he who performs the duty of an office is an officer. Although an office is an employment, it does not follow that every employment is an office. A

man may certainly be employed under a contract express or implied to do an act or to perform a service without becoming an officer. But if the duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by the government to perform, who enters on the duties appertaining to his station without any contract defining them, if those duties continue although the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer. The official bond given in this case by this agent of fortifications, whose appointment was irregular but whose office was established by law, is binding on his sureties.

In this last case the office was found, but no proper appointment to it. That raises the question between officers de jure and officers de facto. The former is a normal case. An officer is de facto where the duties of the office are exercised: Without known appointment or election, but under such circumstances of reputation that acquiescence is calculated to induce people to submit to or invoke his action supposing him to be the officer he assumed to be; under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition; because the officer was not eligible or because there was want of power in the electing or appointing body, or under color of an election or appointment pursuant to an unconstitutional law before the same was adjudged such. Although the acts of such an officer are not those of a lawful officer, the law will hold them

Adm. Law-11.