CASES ON ADMINISTRATIVE LAW INTRODUCTION The subject of administrative law covers a number of topics, which in treatises and digests are generally divided between the law of public officers and the law of extraordinary legal remedies, but which will also be found treated incidentally under such various heads as municipal corporations, taxation, highways, elections, intoxicating liquors, nuisances, public health, public lands, etc. The common element, which gives the subject its unity, is the exercise of administrative power affecting private rights, and the term “administrative law" has in relatively recent times gained acceptance as the best designation for the system of legal principles which settle the conflicting claims of executive or administrative authority on the one side, and of individual or private right on the other.1 The more general bearings of this branch of the law, from a constitutional and comparative point of view, have repeatedly engaged the attention of eminent publicists. E. Dicey, The Law of the Constitution, c. 12; E. M. Parker, 19 Harvard Law Review, p. 335; A. L. Lowell, Government of England, vol. 2, c. 52, pp. 489-504. In France, the dissatisfaction and irritation caused by the resistance of a powerful and conservative judiciary to the policies of the government, before and at the time of the revolution, had given rise to at theory of separation of powers, according to which certain classes of controversies involving matters of public administration were withdrawn from the regular courts and assigned to distinct administrative tribunals.2 1 See F. J. Goodnow, Comparative Administrative Law, N. Y., 1893 (reviewed in an article by the author of this collection in IX Political Science Quarterly, 403); F. J. Goodnow, Principles of Administrative Law in the United States, N. Y., 1905; B. Wyman, Administrative Law, St. Paul, 1903. 2 The regular civil and criminal courts, however, likewise take cognizance of many causes of action involving the validity of administrative acts, so wherever prosecutions are instituted for penalties, where suits for damages are brought against public officers, and where the government seeks to condemn private property for public use. FR.ADM.LAW.-1 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 CYTILOKMIY 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. PART I ADMINISTRATIVE POWER AND ACTION CHAPTER I EXECUTIVE, QUASI JUDICIAL, AND QUASI SECTION 1.—THE DUTY TO SEE THAT THE LAWS ARE EXECUTED 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. 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 granted to the people, but whether it has been granted to the executive; 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) |