Cambridge University Press, British Institute of International and Comparative Law Journal of Comparative Legislation and International Law

British Institute of International and Comparative Law
The Development of American Administrative Law

Author(s): Marshall E. Dimock
Source: Journal of Comparative Legislation and International Law, Vol. 15, No. 1 (1933), pp.
35-46
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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THE DEVELOPMENT OF AMERICAN ADMINIS-
TRATIVE LAW.
[Contributed by PROFESSOR MARSHALL E. DIMOCK,

University of California, Los Angeles.]
"THE hegemony of the executive is at hand. As the

century and the fore part of the nineteenth century r
legislature and the last half of the nineteenth centur
the courts, the twentieth century is no less clearly
administration."
These words were addressed to the American Bar Association by
Dean Pound more than ten years ago. Every year since then it has
appeared more clearly that administration is rapidly becoming
dominant in the United States, just as it has gained ground in
England during recent years. The distinction between the " Con-
tinental " system, involving the primacy of administration, and the
" Anglo-American," entailing legislative supremacy, has become
largely obliterated.
In America, the quickened interest in public administration has
brought about a new interest in administrative law. The torch
which was lighted about the beginning of the century by Frank J.
Goodnow, the " father of American administration," and which was
permitted to die down due to the attempt to " rid political science
from the bondage of the lawyer "-this beacon light is now looked
to by an increasing number for a more realistic, a more complete
development of public administration. Public administration and
administrative law are as inseparable as cause and effect.
An insight into the degree and direction of American administra-
tive law development may be obtained by analysing some of the
factors which have induced the growth. The chief causes which
have influenced the development of American administrative law
are: (I) The rapid increase of industrial and social legislation.
(2) A more liberal construction of the separation of powers principle.
(3) The growth of executive power at the expense of the legislative.
(4) A more sympathetic attitude toward administrative law on the
35
36 THE DEVELOPMENT OF
part of certain leaders of the legal professi

tion of the full scope of administrative l
law research and teaching which is taking p
Universities. Each of these points should
Social Legislation and Administrative Law
authority to the need for industrial and so
of the important governmental developm
example, due process of law and judicial r
assumed new significance with the passage
of work and fair value, but the phenomena
business undertakings-the " Second In
which has occurred since the latter part of
has left its clearest imprint upon the adm
government: new forms and novel meth
necessity dictated.
The United States is a government of c
with the State Railway commissions shor
the country has now placed practically ever
under the control of some municipal, sta
The National Government has an Interstate
a Federal Trade Commission, a Federal Rese
mission, a Shipping Board, a Railway Con
Power Commission, a Federal Radio Commission and a Federal
Farm Board. In the States one usually finds Public Utility Com-
missions, Banking Commissions, dental, medical and legal exam-
iners, Industrial Accident Commissions, and various other boards
and tribunals which exercise control over industry and commerce.
The larger cities have their Boards of Public Works, licensing and
inspection boards, and a few maintain public utility commissions.
These are simply some of the more notable commissions. In
addition there is a host of individual commissioners dealing with
patents, claims, immigration, internal revenue, prohibition, and a
variety of other economic and social problems. Many of these
executive agents are armed with far-reaching judicial and ordinance-
making powers. Practically all of the commissions are independent
or detached tribunals. So, taken in the large, this development can
be interpreted in only one way : in a relatively brief period of time,
the United States has created one of the largest, most ramified, most
i Consideration of certain allied problems will be found in the present writer's

article, " Some Aspects of American Administrative Law," Public Administration,
IX, No. 4 (October 1931), pp. 417-22.
AMERICAN ADMINISTRATIVE LAW. 37
powerful bureaucracies in the world. Moreover, this bur

does not possess a highly developed professional tradition, t
discipline of a corporate esprit de corps, which in older count
stitutes the most effective guarantee of proficiency and of
to the public welfare. Hence the need for administration
legal restraint, imposed either by courts or by higher admi
bodies, is all the more imperative.
The need for remedies arising out of disputed admini
action has not been met entirely by the ordinary civil cour
despite the tradition of the " rule of law." A group of tribu
courts have been established which may be classed prop
administrative courts. Not long ago the Chief Justic
California Supreme Court stated that administrative adju
has progressively caused a narrowing of the common law fo
and that the end is by no means in sight. The Supreme Cour
United States has recognized the existence of administrative
in the case of the United States Court of Claims, the Uni
Court of Customs and Patent Appeals, and the Court of Priv
Claims. In the important case of Ex parte Bakelite,' the
Court clearly indicated that the aforesaid courts are " leg
or administrative courts, as distinguished from "constit
courts. This ruling gives judicial support to a practical dif
tion which has been growing up since the earliest days
country and which was encouraged most by the establishme
Court of Claims in 1855. It should be noted that these co
agencies which exist for the purpose of reviewing admin
action. The only matters which the Bakelite decision perm
cut away from the constitutional courts are those which
could, but does not ordinarily, commit to the final determi
the executive officers.2
It is still true in America, as in England, that the principa
of so-called " Administrative Law " is the " interstices of the com-
mon law." In large part this is due to the difficulty of learning
and digesting the " law in action " of the administrators themselves.
It is undoubtedly true that more administrative law is made and
executed by administrators than by judges. Statutes are not self-
enforcing. Only a relatively small number of administrative de-
cisions are actually adjudicated. The exercise of discretion, the
1 279 U.S. 438 (1929).

2 This whole problem has received penetrating analysis from W. G. Katz,
" Federal Legislative Courts," Harvard Law Review, vol. 43 (April 1930), pp. 894-924.
promulgation and enforcement of sup

the daily determination of manifold rights
the creation of "standards " relative to
these are all the normal, inevitable char
number of administrative powers.
Such a realistic view of American administrative law and of the
instrumentalities through which it is developed is taken only by the
Holmes', Brandeis', and Cordozos'. As a matter of fact, the exist-
ence of a formative hierarchy of administrative courts goes con-
siderably beyond the suggestions in the Bakelite case. One finds
important judicial powers being exercised, and a varying degree of
finality being permitted in cases of immigration ; where there is the
disposition of money paid by a foreign government to the United
States for the account of its citizens pursuant to the award of an
international claims commission ; and in the fields of revenue, cus-
toms, naturalization and industrial accidents. There is a growing
tendency to label as administrative courts the Interstate Commerce
Commission, the Federal Trade Commission, the Federal Power
Commission and the State Public Utility and Industrial Accident
Commissions. F. J. Port very properly points out in his book
entitled Administrative Law that, " Since 1911, forty-seven states
and territories have passed statutes governing workmen's com-
pensation, and of these as many as thirty-seven have entrusted
decisions as to liability to administrative boards or commissions."
Boards of Tax Appeals, federal, state and municipal, may well be
considered administrative courts.
The most noticeable tendency toward administrative court
hierachy is found in the federal government. Congress is bringing
this about by giving the Supreme Court and the Court of Appeals of
the District of Columbia the power to review, in important fields
the decisions of administrative officials, administrative tribunals and
federal legislative courts.2 These courts are likewise legislative
courts, even though the justices hold office during good behaviour :
and tenure during good behaviour is held to be one of the two
principal grounds of discrimination between constitutional and
legislative courts. If Congress continues to withdraw the appeal
1 Probably the best thing in Anglo-American literature relative to this subject
is the recent report of the Scott Committee on " Minister's Powers," Cmd. 4060
April 1932, H.M. Stationery Office.
Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); Postum Cereal Co.
v. California Fig Nut Co., 272 U.S. 693 (1927); United States v. Duell, 172 U.S.
576 (1899).
of technical administrative cases from the district courts and vests
them in the courts of the District of Columbia, we shall have the sub-
stance if not the formal recognition of a hierarchical administrative
court system. Considerations of special competence, increased
remedies, the lessened expense and the greater speed and informality,
which are usually associated with administrative courts, should
impel Congress to take such action. The possibility of there being
established a parallel administrative court system, arising out of the
important legal growth and the powerful new administrative agencies
which have come into being as a result of the economic and social
problems confronting the country, depends in addition upon the
several factors which are motivating the evolution of American
administrative law.
Liberal Construction of the Separation of Powers Doctrine.-The strict
or the liberal interpretation of the separation of powers principle is
one of the main problems of administrative law expansion. Judges
who are zealously alert to check any evidence of the exercise of
power which possesses judicial characteristics can usually kill
effectively any desire of the legislature to entrust to the administra-
tion the right to determine the substantive rights and duties of the
individual, which in this complex age is recognized as a necessary
element of sound administrative practice. This is particularly im-
portant in the United States, where the courts have the power to
review legislative acts. It stands to reason that before a develop-
ment like the one described above could occur, where commissions
perform important judicial functions, a rationalizing of the strict
separation of powers theory must have taken place.
That such a rationalizing process has occurred in recent years
may be seen at once by analysis of such important cases as McGrain
v. Daugherty," Field v. Clark,2 and United States v. Louisville and
Nashville R.R. Co.3 It should be noted as a matter of practical
importance, however, that in all of these cases Congress had passed
laws making it clear that a liberal construction of powers was
necessitated in order to bring about greater efficiency. The latter
cases are particularly interesting because they deal with the
authority of the most powerful administrative tribunal in the
country, the Interstate Commerce Commission. In earlier cases '
: 273 U.S. 135 (1926). 3 143 U.S. 649 (1892).

3 227 U.S. 88 (1913); 235 U.S. 314 (1914); and 236 U.S. 318 (1914).
* C.N.O. & T.P. Ry. Co. v. Interstate Commerce Commission, 162 U.S. 184 (1895)
and Interstate Commerce Commission v. C.N.O. & T.P. Ry. Co., 167 U.S. 479 (1896).
the Supreme Court had held that Congress

the Commission the power to do what is
act, viz. to determine what rates should
After the passage of the Hepburn Act i
process set in, with the result that by the
Nashville Railway cases the power to fix
rates was upheld and the commission was
examine not only the accounts of the carri
ence as well. The rationalization took the convenient form of
" quasi-legislative " and " quasi-judicial " powers. Anothe
portant step had been added in the moulding of American adm
trative law.
The subject of workmen's compensation [writes F. J. Port] provides

the best illustration of the radical change which the constitution of the
United States has recently undergone in respect of the interpretation of
the doctrine of the separation of powers. When an admittedly adminis-
trative body hears evidence and thereupon determines the liability of an
employer to an injured workman, even the most subtle arguments can
scarcely be convincing to prove that judicial powers are not being exer-
cised in contravention of that doctrine. Add to this that in some states
such liability must still be determined by the courts, and even the mos
able apologist must admit that a fundamental change has taken place in
those states where the newer system is in operation.'
Speaking before the American Bar Association in 1916, Mr.

Elihu Root said, " Before these (administrative) agencies the old
doctrine prohibiting the delegation of legislative power has virtually
retired from the field and given up the fight."
The Growth of Executive Power.-There is a third factor which is
stimulating the development of American administrative law: the
growth of executive power at the expense of legislative power. In
the last ten years about one-third of the American States have
reorganized their administrative systems. The central feature of
reorganization is the integration of departments, with the governor
holding, as he never has before, the reins of power. Several States
have established governors' councils, after the model of the federal
cabinet. The objective is to make the governor actually responsible
for the administrative services. Hierarchy, professionalism, re-
I F. J. Port, Administrative Law, p. 282. A classic discussion of this problem is

found in Western Metal Supply Co. v. Pillsbury, 156 Pac. 491 (1927). The opinion
of Mr. Justice Rosenberry (now Chief Justice) in the case of ex rel. Wisconsin
Inspection Bureau v. Whitman, 196 Wis. 472 (1928) is also a masterpiece.
sponsibility, are not these the usual accompaniments of a

system of administrative law ?
The most impressive increase of executive power is in th
government. The greatest victory for the presidency in a
tive history was the decision in the case of Myers v. Unit
which held that the President may remove officers withou
consent of the Senate, although such approval is necessary
the appointment. There is no longer any question that the
is the administrative head of the government. Mor
ordinance-making powers of the executive contin
momentum." An excellent recent example of the libera
now permitted the executive department in exercising po
appears to be legislative is found in the case of Hampton Co
States,$ where the powers of the President under the flex
law were upheld.
In short, the growth of administrative power by m
authority transferred from the legislature reveals a patter
like conditions in England described by writers such
Muir, Lord Hewart and Professor Allen. As a result, th
question has arisen, namely, can effective popular saf
developed as rapidly as the delegation of power appears to
place ? The answer is still in doubt.
The common law remedies are inadequate, slow and
The American President has never been sued successful
brought against the governors of States have rarely achie
The courts will not assume jurisdiction over so-call
questions. The Supreme Court has upheld the right to
the heads of departments,' and federal and state legislation
a tendency to make officers more liable to suit in thei
capacities. Furthermore, there has been a slight in
governmental liability for torts.5 But that the legal li
legal remedies are not comparable to the rate of increase o
trative power, everyone knows who has looked into th
1 272 U.S. 52 (1926).
2 On this point see James Hart, The Ordinance-making Powers of
(1926), and J. P. Comer, Legislative Functions of National A dministrati
(1927). 3 276 U.S. 394 (1928).
* Kendall v. United States, 12 Peters 524
5 The writer has dealt more adequately wit
entitled " American Administrative Law
Review, vol. xxvi, no. 5 (October 1932), pp
6 On this point the report of the " Crown
and analogous. Cmd. 2842, April 1927 (H.
2z*
Administrative courts, composed of mem

first-hand knowledge of modern-day admi
laws which acknowledged public liability
believed, go a long way toward the improv
More Friendly Attitude of Legal Profession
aging omens in the recent development of
law is an attitude of greater understa
long considered foreign and competitive, an
of administrative law by several outst
A. V. Dicey's misconception and prejudic
American soil. But with the opportunity
mon law trained attorneys have had to
trative courts and tribunals, their appre
others act as referees and as judges. Am
lawyers and jurists there is general agreem
procedures are too technical, too slow, an
istrative procedure usually affords the o
made many converts to administrative la
One of the best friends of American administrative law is Dean
Roscoe Pound of Harvard Law School. He has been responsible for
pointing out that although in nineteenth-century American thinking
law and administration were regarded as rival rather than as comple-
mentary agencies, in the twentieth century the development of
rules, principles and standards of administrative law is imperative."
In his presidential address to the New York Bar Association in
1923, William D. Guthrie discussed the development of American
administrative law, praised the French system of administrative
courts, and concluded:
It has been found in France, as it will be ultimately found with us,

that private rights can be afforded full protection by independent judicial
tribunals without unduly interfering with or hampering administrative
efficiency . . .
One more illustration may be made to suffice. In an excellent article

entitled Administrative Law and the Constitution,: the Acting Chief
Justice of the Supreme Court of Wisconsin said:
That the development of administrative law must stop short of com-

bining in one person or group legislative, executive and judicial power
I See particularly " The Administrative Application of Legal Standards,"
Reports of American Bar Association, vol. 44, 1919.
2 American Political Science Review, vol. 23 (February 1929), pp. 32-46.
which may be exercised arbitrarily-seems to be axiomat

probable that the matter will be worked out ultimately by
stitutional amendment, permitting the creation of a court co
the French Council of State, in order that highly technical a
questions involved in administrative law may be reviewed by a c
tribunal.
So long as the legal profession was almost unanimous

American administrative law developed by sufferance, cert
by choice. With an attitude so changed as that represen
views of leading figures of the American Bar, administrativ
a period of unprecedented growth.
Enlarged Ambit of Administrative Law.-American adminis
law has not crystallized; it is not even clear that the c
administrative law, as distinguished from constitution
example, have been clearly established. One of the unq
difficulties of the past has been the failure to consider
ambit of administrative law. The time has come when some form
of general agreement should be reached concerning the extent a
the limits of the administrative law field. Of course it is only natu
that the several commentators on any substantial body of law shou
emphasize some aspects which are their individual specialities, t
the comparative neglect of others. Thus Goodnow undoubtedly
stresses organization and officers; Frankfurter pays particula
attention to public utilities; while Freund almost completely e
cludes organization and officers. So long as this incompletenes
exists among the principal authorities on administrative law,
stands to reason that critics might scoff at its unimpressiveness as
science, and state that it has no legitimate claim to separate exis
ence. As a matter of fact, Dudley O. McGovney in his Cases on
Constitutional Law attempts to absorb the principal cases on admin
trative law into constitutional law, and has indicated that in hi
opinion administrative law has no claim to independent consideratio
as a law-school course. Fortunately there are not many who wou
attempt to do this.
But the warning is opportune. Administrative law should b
clearly defined, at the same time recognizing the desirability of clo
syntheses with constitutional law, public administration an
related fields. A definition which will approximate the current idea
concerning the bounds of administrative law may be suggeste
American administrative law is that body of public law which relat
to the organization of the administration ; its legal relation to othe
departments and powers of the government ;

of holding office ; and the nature and extent
tions and methods by which the objectives
carried out administratively.' The second pa
with the liability of the officer and of the gov
which injure the citizen; and the remedies
trative, which the government provides in or
It is quite possible that when its metes an
clearly established, American administrative la
more comprehensive than the Droit A dministr
One reason is that so much public utility
been utilized by administrative law.8 Furthe
central position played by the separation of
problems of administrative discretion ' and ad
are of immense importance. Again, America
closely identified with public administration,
not so rigid and so technical as the Droit A
a tendency to become. Finally, the all-perv
law " clauses apply to administrative acts as
Incidentally, these provisions of the Fifth and
ments are the principal constitutional stumbli
of an independent administrative court syst
1 Port's Law in Action. It is in this aspect of the s
administrative powers, that the most realistic (but mos
accomplished.
2 Compare this statement with that of Professor H.
d'Etat in France," Journ. Comp. Leg., vol. xii, pt. i, pp.
3 As prominent examples of this, reference may be
Co. v. Ben Avon Borough, 253 U.S. 287 (1920) ; Federal
Publishing Co., 26o U.S. 568 (1923) ; Interstate Commer
154 U.S. 447 (1894) ; and Federal Trade Commission v. G
4 Outstanding examples are People v. Illinois State Bo
no Ill. 18o (1884) ; United States Fidelity and Guarant
41, 58 Atl. 956 (1904); and United States v. Grimau
writer has examined the analyses of discretion in Fr
" Le pouvoir discr6tionnaire des autorit6s administrati
de pouvoir," Revue du Droit Public (1923), PP. 363 ff.,
discr6tionnaire de l'administration et sa limitation par
Revue du Droit Public (1930), pp. 197 ff.
6 For representative cases one is referred to Spiller
117 (1920) ; United States v. Tod, 263 U.S. 149 (1923)
Blair, 271 U.S. 479 (1926) ; and Berkey & Gay v. Feder
(2d) 427 (1930).
6 Failure to provide proper notice and hearing are
Wo. v. Hopkins, 118 U.S. 356 (1885) ; Murray v. Hobo
272 (1855) ; Hagar v. Reclamation District, IIi U.S. 7
Board of Health of City of Yonkers, 140 N.Y. I, 35 N.E
The Progress of Research.-Administrative law is a large

it can be developed best by a clear recognition of the fa
the time in which the body of administrative law and the
of an administrative court system are evidencing so much
growth, it would be unfortunate to weaken the edifice by
take in everything that belongs to it.
This responsibility rests principally upon that body of s
American universities who have been doing so much to bri
istrative law into its own. President Frank J. Goodnow
way for all that followed by his Principles of the Administ
of the United States (New York, 1893), still the only comp
book dealing with principles. Goodnow, Ernst Freund o
Law School and Felix Frankfurter of Harvard Law School have
written the only case books in the field. Professor Frankfurter
also contributed a volume dealing with Cases under the Inte
Commerce Commission Act (Cambridge, 1915).
In the last few years two books have made outstanding
tributions to the literature of American administrative law.
Administrative Justice and the Supremacy of Law (Cambridge,
by Professor John Dickinson of the University of Pennsylvani
School, has probably done more than any book to stimulate int
in administrative law, in England as well as in the United S
A year later Professor Freund's long-awaited magnum opus, Ad
istrative Powers over Persons and Property (Chicago, 1928), ma
appearance.
In 1923 Freund and others contributed a valuable sympos
entitled The Growth of American Administrative Law (St. Lo
1923). A great deal of light was thrown upon administrative
by more specialized studies prepared by Gerald C. Hender
The Federal Trade Commission : A Study in Administrative Law a
Procedure (New Haven, 1925), and E. W. Patterson, The Insura
Commissioner in the United States (Cambridge, 1927).. Following

Myers decision, monographs were prepared by Professors E
Corwin, The President's Removal Power (New York, 1927), and Ja
Hart, Tenure of Office under the Constitution (Baltimore, 1930).
Recently the Commonwealth Fund of New York has relea
studies which deal exhaustively with the Interstate Commerce Co
mission (Sharfman), Legislative Regulation (Freund) and
Administrative Control of Aliens. These significant contribut
added to the authorities quoted in the preceding pages, indi
clearly that the star of administrative law is rapidly rising.
46 AMERICAN ADMINISTRATIVE LAW.
Just as encouraging are the studies which are in process o

pletion. According to information contained in Current Res
the Law (Baltimore, 1929, 1930), studies will soon be com
relative to the limits of discretion; the judicial powe
appeals authorities; the Corporation Commissioner of O
administrative rule-making powers in Massachusetts;
powers and procedure of industrial accident commission
principal States.
As one takes stock of the development of administrative la
United States, it should be recognized clearly that the g
symmetry and completeness in the body of administrativ
been contributed by a small group of devoted research men
in the future depends largely upon the same resource.
In concluding this survey, the writer cannot restrain a d
express certain ideas with reference to future objective
evolution of American administrative law." First, it is
that administrative law should be, and already indicates a te
to become, more closely associated with public law, public
tration and departments of political science. The last ve
common law domination should be broken. Second, and t
partly out of the first point, it is necessary to add to the co
remedies represented in mandamus, certiorari, habeas co
junction and damages. In this day and age, legislatio
permit wider freedom of suit against officers and against t
or the community. Legislatures should provide suitable r
the relief afforded by the courts does not suffice. Again, t
need for studies which will emphasize powers rather than li
and liabilities; administrative law-making instead of jud
law. Finally, serious attention should be given to the expedie
creating a logical hierarchy of administrative courts. The A
Bill of Rights is said to be " vanishing." The late Chief
Taft said our civil and criminal procedures are " disgraceful
has outstripped responsibility. Administrative law ca
the remedy; administrative courts should set a new sta
justice.
1 The writer has attempted to delineate some of the tendencies of American
administrative law in " Le Droit Administratif Am6ricain, 193i," Annuaire de
l'Institut International de Droit Public (1932), PP. 542-63.

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British Institute of International and Comparative Law

The Development of American Administrative Law

Cambridge University Press, British Institute of International and Comparative Law

[Contributed by PROFESSOR MARSHALL E. DIMOCK,

"THE hegemony of the executive is at hand. As the

part of certain leaders of the legal professi

i Consideration of certain allied problems will be found in the present writer's

powerful bureaucracies in the world. Moreover, this bur

1 279 U.S. 438 (1929).

promulgation and enforcement of sup

: 273 U.S. 135 (1926). 3 143 U.S. 649 (1892).

the Supreme Court had held that Congress

The subject of workmen's compensation [writes F. J. Port] provides

Speaking before the American Bar Association in 1916, Mr.

I F. J. Port, Administrative Law, p. 282. A classic discussion of this problem is

sponsibility, are not these the usual accompaniments of a

Administrative courts, composed of mem

It has been found in France, as it will be ultimately found with us,

One more illustration may be made to suffice. In an excellent article

That the development of administrative law must stop short of com-

which may be exercised arbitrarily-seems to be axiomat

So long as the legal profession was almost unanimous

departments and powers of the government ;

The Progress of Research.-Administrative law is a large

Commissioner in the United States (Cambridge, 1927).. Following

Just as encouraging are the studies which are in process o

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