This system of administrative jurisdictions subsequently spread to other parts of continental Europe, and it is natural that the existence of courts exclusively concerned with questions of administrative law should have given that department of law a recognized status in the jurisprudence of the continental states. The common law, on the other hand, has never given to the public law a similar recognition, as a distinct part of its system. While old established differences of judicature and procedure have served to mark off the criminal law from civil rights and remedies, there has been no similar line of demarcation for the public law, the very name of which has no place in the technical language of the common law. It was, however, inevitable that the common law, when applied to matters of public administration, should develop principles in many respects different from those governing ordinary private rights. In the first place, important privileges and immunities were conceded to the Crown. It is true that the English law made no distinction between the proprietary and the governmental capacity of the Crown, but in so far as the Crown represented the executive government, the law of the Prerogative meant also an exemption of public rights from the ordinary rules of the common law. In the second place, while the Crown did not identify itself with all its subordinate organs, and while therefore the liability of public officers was from the earliest times treated as a matter of common law, yet compensatory relief by actions for damages against officers came, generally speaking, to be confined to cases where the illegal act constituted trespass or conversion. Municipal corporations have generally been conceded immunity from liability where they act in a governmental and not in a proprietary capacity.The state and the general government have succeeded to the immunity of the Crown from being sued, and the creation of a statutory right to obtain pecuniary relief from the public treasury for losses suffered through administrative error or default is the exception and not the rule. As a consequence, the right to compensatory relief, which is the backbone of the common. law, has only a very limited application in matters of public administration. See sections 33-41 of this collection. In the third place, the right to specific relief is represented by the extraordinary legal remedies, supplemented by the slowly expanding jurisdiction of courts of equity to restrain administrative acts which are in violation of individual rights. These extraordinary remedies differ in important particulars from other rights of action. They are not matter of absolute right, but are granted or refused by the courts according to a judicial discretion governed by considerations of public policy. See sections 62-64 of this collection. Moreover, even in those states in which in ordinary civil controversies the forms of action have been reduced to one, there survives, as a needless legal archaism, the distinctiveness of the different extraor dinary legal remedies, with provinces in part mutually exclusive, and in part concurrent, differing in scope and application in the several states, with arbitrary boundary lines, sometimes due to historical misunderstandings, and in their aggregate furnishing a highly technical and not entirely adequate system of judicial control of administrative action. See sections 47-61 of this collection. Every case, therefore, arising out of an administrative controversy involves in the first instance the question through which of the various forms of remedies relief must be sought. There is no state in which the law grants, in general terms, a right to appeal to the courts from every administrative decision affecting individual rights, and alleged to involve either a misconstruction of law, or an erroneous finding of facts, or an abuse of discretion. Nor is such an appeal, as a rule, given by statutes creating new administrative powers, the legislatures being, generally speaking, content to leave the individual right of redress to the system of remedies which has been developed by the unwritten law. If no remedy at all is available, it must be that the legislature has vested in an administrative authority a power of conclusive determination. Where such determination has the effect of impairing commonlaw rights, and not merely rights or privileges of legislative creation or subject to absolute legislative disposition, a constitutional question will arise, whether such determination satisfies the requirement of due process of law. Since practically every act of exercise of administrative power must be authorized by legislation, the operation of general principles of administrative law is constantly affected, and frequently controlled, by the language of statutes. Questions of administrative law, in other words, often resolve themselves into questions of statutory construction. However, the constant recurrence of certain types of legislation has evolved principles of construction, which, in view of the rapid and enormous growth of public regulation of all kinds of interests, are as deserving of careful study as common-law principles. The term "administrative law" is sometimes applied to all provisions of law regulating matters of public administration, such as civil service, elections, municipal government, schools, public revenue, or highways. In so far as such legislation involves problems of public policy and of administrative efficiency, it concerns the student of political science and of public administration. The chief concern of administrative law, on the other hand, as of all other branches of civil law, is the protection of private rights, and its subject-matter is therefore the nature and the mode of exercise of administrative power and the system of relief against administrative action. This limitation of the subject seems conformable to the prevailing usage and understanding in this country, while on the continent of Europe all positive statutory law is treated as belonging to the province of administrative law. 0 The power of appt wall. 7 329-343S+Schof Amer. Adm• Tribunals 2, Pal SQ org. Adm. Exercise of Reg: Power 27 PSG 215 + 28 db 34.. SECTION 1.-THE DUTY TO SEE THAT THE LAWS ARE FIELD v. PEOPLE. (Supreme Court of Illinois, 1839. 2 Scam. 79.) WILSON, C. J.1 * * The general government differs from ours in its powers and attributes; and although we have adopted the common law of England, we have neither adopted the form of that government, nor recognised the principles upon which it is founded. Ch. Eng Grot by According to the theory of that government, the king is the sovereign power of the state. When a question of prerogative, therefore, arises there, recurrence is had to the charters of the people's rights and liberties, to ascertain whether the right in question has been surrendered by the king to the people; and if the grant cannot be shown, the right is adjudged to the king, upon the principle that all rights of which he has not divested himself, by express grant to the people, come within his prerogative. But upon the principle of our government, that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries can be exercised, where a claim of power is advanced by the executive, the question is, not whether the power in question has been Amer. Gooth them ranted to the people, but whether it has been granted to the execu Specificat. reu um tive; and if the grant cannot be shown, he has no title to the exercise of the power. * * * The next grant of power relied on is that "the executive power of the state shall be vested in a Governor." This clause is treated by the court below as conferring numerous and ample powers upon the 1 Only a portion of the opinion of Wilson, C. J., is here printed. (4) Asto pons oflso in Cal to remove. Const. Art 20 § 16. " of CW. Serv. Act 1915. lus & a 5 Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. Governor. All that are usually denominated executive powers, by theoretical writers, are supposed to be included in this grant to the Governor, except such as are expressly conferred upon other departments. This, I think I shall be able to show, is a mistaken view of the subject. This clause, like the preceding ones, is a declaration of a general rule; and the same remarks are applicable to this, as a grant of power, that have been made in reference to them. It confers no specific power. What would have been its operation, if the Constitution had contained no specific enumeration of executive powers, is a very different question from that now presented, and might have admitted of a different answer. But it has been settled by the Supreme * * * 2 Court of the United States that an enumeration of the powers of a ican Law, 103. The Governor is not to execute the laws himself, but meaning of d. is to see them executed. This duty is performed by lending the aid 2 That the Governor shall see that the laws are faithfully executed. 2 "It was urged at the bar that the Postmaster General was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law; and this right of the President is claimed, as growing out of the obligation imposed upon him by the Con SECTION 2.-POWERS OF SUPERVISION K STATE ex rel. IVES, Atty. Gen. v. KANSAS CENT. R. CO. et al. Application by the State, on relation of the Attorney General, for "Par. 1328. Said commissioners shall have the general supervision of all railroads in the state operated by steam, and all express companies, sleeping-car companies, and all other persons, companies, or corporations doing business as common carriers in this state; and shall inquire into any neglect or violation of the laws of this state by any person, company, or corporation engaged in the business of transportation of persons or property therein, or by the officers, agents, or employés thereof; and shall also from time to time carefully. examine and inspect the condition of each railroad in the state, and of its equipment, and the manner of its conduct and management, with reference to the public safety and convenience. Whenever, in the judgment of the railroad commissioners, it shall appear that any railroad corporation, or other transportation company, fails, in any respect or particular, to comply with the terms of its charter or the laws of the state, or whenever in their judgment any repairs are necessary upon its road, or any addition to its rolling stock, or any addition to or change of its stations or station-houses, or any change in its rates for transporting freight, or any change in the mode of operating its road and conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, said commissioners shall inform such corporation stitution, to take care that the laws be faithfully executed. This is a doc- · Congress had drvcted P. M-in de credit a of toner with makes un the Solicitor of this id |