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24 A.B.A. J. 267 (1938)
The Place of the Administrative Tribunal in Our Legal System

handle is hein.journals/abaj24 and id is 293 raw text is: THE PLACE OF THE ADMINISTRATIVE TRIBUNAL IN OUR LEGAL SYSTEM Nature and Functions of Administrative Tribunals-Nothing New in Their Development but the Significant Fact of Today Is the Velocity of That Development-Constitutional and Prac- tical Objections to This Union of Executive, Legislative and Judicial Powers-Doctrine of Separation of Powers not a Mere Technical Abstraction but a Constitutional Principle Based on Historic Struggle and Express Provisions-How Far the Legislature Can Go in Delegating Functions-Exercise of Judicial Powers by Administrators and Certain Safeguards Which Are Imperatively Demanded-More Administration Needed in Courts of Justice and More of the Fundamental Principles of Justice in Administrative Tribunals* By HON. ARTHUR T. VANDERBILT President of the Anmerican Bar Association I THE NATURE OF THE FUNCTIONS OF ADMINISTRATIVE TRIBUNALS-PARTLY ADMINISTRATIVE, PARTLY LEGISLATIVE AND PARTLY JUDICIAL DMINISTRATIVE LAW in common law coun- tries has developed in an atmosphere of contro- versy. Thus, in 1885 Professor A. V. Dicey, who for many years dominated English thought on con- stitutional law, sought to snuff it out by denying its very existence: In England, and in countries which, like the United States, derive their civilization from English sources, the system of administrative law and the very principles upon which it rests are in truth unknown. This denial he persisted in through the eighth edi- tion of his Law on the Constitution, published in 1915, despite the decision in Board of Education v. Rice' in 1911. Local Government Board v. Arlidge2 in 1915 forced him to capitulate; even Dicey recognized the futility of arguing against the House of Lords. His regretful surrender is set forth in the Law Quarterly Review in an article entitled, significantly, The De- velopment of Administrative Law in England.' But if Dicey was willing to surrender, there were many of his followers among English lawyers and judges who were not. As late as 1929 Lord Hewart of Bury, the Lord Chief Justice of England, left the Bench, to quote Professor Frankfurter, to break a lance for the pristine purity of Dicey's Rule of Law.' It was the Lord Chief Justice's belief that someone in high position owed a duty to the people to tell them precisely what was going on. Accordingly, he out- lined, with unrestrained vigor, his conception of the aims of the modern bureadcrat: (a) get legislation passed in skeleton form (b) fill up the gaps with his own rules, orders, and regulations, *Address delivered at the Cincinnati Conference on Func- tions and Procedure of Administrative Tribunals, held in Cin- cinnati on March 5, 1938. This Conference was the fourth in a series organized by the Cincinnati Bar Association under the auspices of the Ohio State Bar Association. 1. (1911) A. C. 179. 2. (1915) A. C. 120. 3. (1915) 31 L. Q. Rev. 148. 4. Hewart, The New Despotism (1929). (c) make it difficult or impossible for Parliament to check the said rules, orders and regulations, (d) secure for them the force of statute, (e) make his own decision final, (f) arrange that the fact of his decision shall be conclusive proof of its legality, (g) take power to modify the provi- sions of statutes, and (h) prevent and avoid any sort of appeal to a Court of Law. If'the expert can get rid of the Lord Chancellor, re- duce the Judges to a branch of the Civil Service, compel them to give opinions beforehand on hypothetical cases, and appoint them himself through a business man to be called 'Minister of Justice,' the coping-stone will be laid and the music will be the fuller.' His action forced Lord Chancellor Sankey to ap- point his Committee on Ministers' Powers. The Com- mittee's report, an outstanding state paper, submitted three years later, has been tersely summarized by Professor C. T. Carr: The verdict was 'not guilty, but be careful another time'.' The distinguished Committee itself said: We say deliberately there is no ground for public fear, if the right precautions are taken.' It then proceeded to give six pages of detailed recommendations in regard to delegated legislation,' and nearly four more pages of recommendations in regard to judicial and quasi-judicial decisions-most of which are still disregarded.' On the other hand, in this country a new knight has entered the lists in favor of Administrative Law in the person of James M. Landis, Dean of the Harvard Law School, and until recently the distinguished chair- man of the Securities Exchange Commission. His point of view is indicated in a recent article, in which he writes: The continuity of the common man's radio programs, the security of his bank deposits, his protection against un- fair discrimination in employment, his right to have light and power at reasonable rates, his protection against fraud and chicanery in our securities markets, his right to cheap railroad travel-to mention only a few of the necessities of 5. id. at 14. 6. (1935) 51 L. Q. Rev. 61. 7. (1932) C. M. D. 4060 at 7. 8. id. 64-70. 9. id. 115-118.

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