other. Many States together make the Union, no one is primarily essential to its existence; there are three departments of the government, no one of which is superior to the other two; great men contributed their strength and their wisdom to the development of our system of government, but it is not for us to say that the contribution of one was essential or valuable rather than that of another. Washington was the great leader, holding together discordant elements and influences which, without his power of command, would have made for separation and rendered independence and union impossible. Hamilton furnished the great organizing brain, which, with marvelous skill and foresight, proposed the measures of finance and admistration which were essential to bring order out of chaos and infuse strength into weakness. Jefferson brought the scheme of government into responsive touch with the popular will, without which it could not have permanently existed. Marshall expounded the principles which must govern the various departments in their relation with one another and the federal government in its relation with the States in order that by peaceful means all controversy should be determined and all friction avoided. Had the true force and significance of the principles he announced been appreciated and recognized, even an attempt at disunion would have been impossible. It was not his fault that such an attempt was made, but it is to his perpetual glory that the principles which he announced have prevailed over all opposition, and that the great and enlightened government of a reunited country continues to recognize them as the landmarks by which its course is guided. EMLIN MCCLAIN

SUPREME COURT CHAMBERS

DES MOINES

PROBLEMS IN THE ADMINISTRATION OF

IOWA

Since the close of the Reconstruction period in American history many students of government have been impressed with the belief that the most useful work which they can find to do is no longer in the field of constitutional history and constitutional law. With the advent of the Hayes administration and the withdrawal of the federal troops from the South, most of the questions there involved received, if a crude, a comparatively tenable settlement. Hence the turning and the change from grand to petit political thought, from the outline to the anatomy. Hence the flood of discussion which of late years has emphasized the business, rather than the philosophy, of government. We have moved from the study of constitutional to the study of administrative law. And, whatever may have been the

1It may be well to indicate briefly the sense in which administrative law is here distinguished from constitutional law. Constitutional law prescribes the structure and the organization of government, defines sovereignty, and regulates its exercise; administrative law is concerned with the business of government. But the study of organization is essential to the study of administration. Moreover, the minutiae of organization are administrative rather than constitutional. Administrative law has to do more properly with what Wilson names the "ministrant" functions of government. -Woodrow Wilson's The State, p. 614.

But it is in fact almost impossible to draw a close distinction between administrative and constitutional law. They inevitably shade one into the other. I know of no statement which so excellently

compulsion of constitutional study in the past, from the standpoint of the necessities of the present the administrative is perhaps of more importance. Our problems of today are problems of execution, of public business management and service.

The problem of government in Iowa is the same as that of its sister States-one of efficiency, responsibility, and independence in the administration, both State and local. It is a complex problem, and one that will be fully solved, no doubt, only after many painful trials. But the essential that is fundamental to its solution, that which must precede all others, is the delimitation of the spheres of local and State government and the fixing within these spheres of the services that properly belong to each.

The characteristic of the American State government of the past hundred years has been its complexity and confusion, obscuring or destroying responsibility, until oftener than not it has been a snare and a trap to the elector, and a haven to the politician. Ask the man in the street today,

brings this out, and so well shows the relation of the two fields of law, as the following, by Luigi Miraglia. He says: "L'amministrazione sta alla constitiozione come l'attività alla forma immanente, come la funzione alla struttura degli organi. E pochè non è possibile intendere effettivamente la funzione degli organi, senza conoscerne la struttura, così non si può separare il Diritto amministrativo dal constituzionale. L'uno e l'altro sono parti integranti del Diritto Pubblico interno, sebbene nell'uno predomini il momento dinamico, e nell'altro prevalga il momento statico. L'amministrazione rappresenta l'azione molteplice e continua del potere esecutivo, ossia lattività per eccellenza; la constituzione rappresenta invece la base solida su cui procede questa funzione." In Atti della Reale Accademia di Scienze Morali e Politiche, di Napoli, 1883, v. 17, p. 7.

what branch of the government is acting when a policeman exercises the duress of the law upon his person, and it is likely he could not answer. If he chanced to live in Kentucky or New York, he would find eventually that the officer represented the local or municipal authority; whereas, if he lived in Michigan, Nebraska, Kansas, Maryland, or Iowa, that same officer would represent the State alone.1

"What," he would say, "are not these policemen of Des Moines, Sioux City, Burlington, who are appointed and confirmed by local authorities, officers of the city?" Let him seek to recover damages of the city for the negligence of such an officer, and he will learn to his loss the true inwardness of his error. 2

This is but an example. How many others might be adduced in the public health, the public safety, education, taxation, corrections, charities, highway management, and indeed in almost every branch of government! The power is now here, now there, in State, in county, in city, in town, according to the particular Commonwealth had in mind and the particular year in that Commonwealth's history with which the inquiry is concerned. And, to make confusion worse confounded, not only must one be uncertain of the source of power, but often he finds an officer who in the last analysis is exercising a purely State function, labeled by the very law itself a municipal or county officer, and as such he votes for that officer! Or the thing may be just reversed. If then, the great desideratum in American government be

1See Frank J. Goodnow, Municipal Home Rule, p, 88.

See, for example, Lahner v. Town of Williams, 112 Iowa, and cases cited therein.

efficiency, responsibility, and independence in administration, what more pertinent than the assertion that before we can construct we must clarify. Will a servant be efficient or responsible when he is in doubt as to whom (excepting always to his political creator) he owes allegiance? Can he be independent when two sets of authorities, however erroneously, claim him?

We may examine, though very briefly and in a general way, to see to what degree the State of Iowa, in the course of its administrative history, has created distinct spheres of State, and, to a lesser degree, of municipal administration. Equipped with this information, we may be able to form some opinion both of the general excellence and of the deficiencies of our organization. The fields with which we shall be concerned are public education, charities and corrections, public health and safety, and public finance; for it is in these fields, more particularly, that the debatable questions have arisen, that the local organization has trenched upon the State, or the State upon the local, with its attendant confusion of responsibility.

PUBLIC EDUCATION

The history of the administration of education in Iowa may be divided roughly into six periods, as follows:

1.

1839-1842. Organization of the School System. Territorial Superintendent.

2. 1842-1847. Period of Decentralization and Demor

alization.

3. 1847-1858. Period of Union of the Educational and

Financial Administration of the Schools.