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F89
CASES
ON
ADMINISTRATIVE LAW
SELECTED FROM DECISIONS OF
ENGLISH AND AMERICAN COURTS
BY
ERNST FREUND
PROFESSOR OF LAW IN THE UNIVERSITY OF CHICAGO
AMERICAN CASEBOOK SERIES
JAMES BROWN SCOTT
GENERAL EDITOR
ST. PAUL
WEST PUBLISHING COMPANY
1911
COPYRIGHT, 1911
BY
WEST PUBLISHING COMPANY
(TR.ADM. LAW)
Library
3-2-31
THE AMERICAN CASEBOOK
SERIES
For years past the science of law has been taught by lectures, the
use of text-books and more recently by the detailed study, in the
class-room, of selected cases.
Each method has its advocates, but it is generally agreed that the
lecture system should be discarded because in it the lecturer does
the work and the student is either a willing receptacle or offers a
passive resistance. It is not too much to say that the lecture system
is dooined.
Instruction by the means of text-books as a supplement or sub-
stitute for the formal lecture has made its formal entry into the educa-
tional world and obtains widely; but the system is faulty and must pass
away as the exclusive means of studying and teaching law. It is an
improvement on the formal lecture in that the student works, but if it
cannot be said that he works to no purpose, it is a fact that he works
from the wrong end. The rule is learned without the reason, or both
rule and reason are stated in the abstract as the resultant rather than
as the process. If we forget the rule we cannot solve the problem; if
we have learned to solve the problem it is a simple matter to formulate
a rule of our own. The text-book method may strengthen the mem-
ory; it may not train the mind, nor does it necessarily strengthen it.
A text, if it be short, is at best a summary, and a summary presup-
poses previous knowledge.
If, however, law be considered as a science rather than a collection
of arbitrary rules and regulations, it follows that it should be studied
as a science. Thus to state the problem is to solve it; the laboratory
method has displaced the lecture, and the text yields to the actual
experiment. The law reports are in more senses than one books of
experiments, and, by studying the actual case, the student co-operates
with the judge and works out the conclusion however complicated
the facts or the principles involved. A study of cases arranged his-
torically develops the knowledge of the law, and each case is seen to
be not an isolated fact but a necessary link in the chain of develop-
ment. The study of the case is clearly the most practical method,
for the student already does in his undergraduate days what he must
do all his life; it is curiously the most theoretical and the most prac-
tical. For a discussion of the case in all its parts develops analysis,
the comparison of many cases establishes a general principle, and
(iii)
iv
PREFACE.
the arrangement and classification of principtes dealing with a sub-
ject make the law on that subject.
In this way TRAINING AND KNOWLEDGE, the means and the end of
legal study, go hand and hand.
The obvious advantages of the study of law by means of selected
cases make its universal adoption a mere question of time.
The only serious objections made to the case method are that it takes
too much time to give a student the requisite knowledge of the sub-
ject in this way and that the system loses sight of the difference be-
tween the preparation of the student and the lifelong training of the
lawyer. Many collections of cases seem open to these objections,
for they are so bulky that it is impossible to cover a particular sub-
ject with them in the time ordinarily allotted to it in the class. In
this
way the student discusses only a part of a subject. His knowl-
edge is thorough as far as it goes, but it is incomplete and frag-
mentary. The knowledge of the subject as a whole is deliberately
sacrificed to training in a part of the subject.
It would seem axiomatic that the size of the casebook should cor-
respond in general to the amount of time at the disposal of instructor
and student. As the time element is, in most cases, a nonexpansive
quantity, it necessarily follows that, if only a half to two-thirds of the
cases in the present collections can be discussed in class, the pres-
ent casebooks are a third to a half too long. From a purely practical
and economic standpoint it is a mistake to ask students to pay for
1,200 pages when they can only use 600, and it must be remembered
that in many schools, and with many students in all schools, the mat-
ter of the cost of casebooks is important. Therefore, for purely
practical reasons, it is believed that there is a demand for casebooks
physically adapted and intended for use as a whole in the class-room.
But aside from this, as has been said, the existing plan sacrifices
knowledge to training. It is not denied that training is important,
nor that for a law student, considering the small amount of actual
knowledge the school can hope to give him in comparison with the
vast and daily growing body of the law, it is more important than
mere knowledge. It is, however, confidently asserted that knowledge
is, after all, not unimportant, and that, in the inevitable compromise
between training and knowledge, the present casebooks not only de-
vote too little attention relatively to the inculcation of knowledge,
but that they sacrifice unnecessarily knowledge to training. It is be-
lieved that a greater effort should be made to cover the general prin-
ciples of a given subject in the time allotted, even at the expense of
a considerable sacrifice of detail. But in this proposed readjustment
of the means to the end, the fundamental fact cannot be overlooked
that law is a developing science and that its present can only be un-
derstood through the medium of its past. It is recognized as im-
perative that a sufficient number of cases be given under each topic
PREFACE.
V
treated to afford a basis for comparison and discrimination; to show
the development of the law of the particular topic under discussion;
and to afford the mental training for which the case system neces-
sarily stands. To take a familiar illustration: If it is proposed to
include in a casebook on Criminal Law one case on abortion, one on
libel, two on perjury, one on larceny from an office, and if in order to
do this it is necessary to limit the number of cases on specific intent to
such a degree as to leave too few on this topic to develop it fully
and to furnish the student with training, then the subjects of abor-
tion, libel, perjury, and larceny from an office should be wholly omit-
ted. The student must needs acquire an adequate knowledge of these
subjects, but the training already had in the underlying principles of
criminal law will render the acquisition of this knowledge compara-
tively easy. The exercise of a wise discretion would treat fundamen-
tals thoroughly: principle should not yield to detail.
Impressed by the excellence of the case system as a means of legal
education, but convinced that no satisfactory adjustment of the con-
Alict between training and knowledge under existing time restrictions
has yet been found, the General Editor takes pleasure in announcing
a series of scholarly casebooks, prepared with special reference to
the needs and limitations of the class-room, on the fundamental sub-
jects of legal education, which, through a judicious rearrangement
of emphasis, shall provide adequate training combined with a thor-
ough knowledge of the general principles of the subject. The collec-
tion will develop the law historically and scientifically; English cases
will give the origin and development of the law in England; Ameri-
can cases will trace its expansion and modification in America; notes
and annotations will suggest phases omitted in the printed case.
Cumulative references will be avoided, for the footnote may not hope
to rival the digest.
The law will thus be presented as an organic growth, and the neces-
sary connection between the past and the present will be obvious.
The importance and difficulty of the subject as well as the time that
can properly be devoted to it will be carefully considered so that each
book may be completed within the time allotted to the particular sub-
ject.
It is equally obvious that some subjects are treated at too great
length, and that a less important subject demands briefer treatment.
A small book for a small subject.
In this way it will be alike possible for teacher and class to com-
plete each book instead of skimming it or neglecting whole sections;
and more subjects may be elected by the student if presented in short-
er form based upon the relative importance of the subject and the
time allotted to its inastery.
Training and knowledge go hand in hand, and Training and Knowl-
edge are the keynotes of the series.
vi
PREFACE,
If it be granted that all, or nearly all, the studies required for ad-
mission to the bar should be studied in course by every student-and
the soundness of this contention can hardly be seriously doubted—it
follows necessarily that the preparation and publication of collections
of cases exactly adapted to the purpose would be a genuine and by
no means unimportant service to the cause of iegal education. And
this result can best be obtained by the preparation of a systematic
series of casebooks constructed upon a uniform plan under the super-
vision of an editor in chief.
For the basis of calculation the hour has been taken as the unit. The
General Editor's personal experience, supplemented by the experience
of others in the class-room, leads to the belief that approximately a
book of 400 pages may be covered by the average student in half a
year of two hours a week; that a book of 600 pages may be discussed
in class in three hours for half a year; that a book of 800 pages may
be completed by the student in two hours a week throughout the year;
and a class may reasonably hope to master a volume of 1,000 pages
in a year of three hours a week. The general rule will be subject to
some modifications in connection with particular topics on due con-
sideration of their relative importance and difficulty, and the time
ordinarily allotted to them in the law school curriculum.
The following subjects are deemed essential in that a knowledge of
them (with the exception of International Law and General Juris-
prudence) is universally required for admission to the bar:
Insurance.
International Law.
Jurisprudence.
Mortgages.
· Partnership.
· Personal Property, including
the Law of Bailment.
• Administrative Law.
· Agency.
· Bills and Notes.
· Carriers.
Contracts.
Corporations.
Constitutional Law.
Criminal Law.
. Criminal Procedure.
Common-Law Pleading.
Conflict of Laws.
Code Pleading.
Damages.
Domestic Relations.
· Equity
Equity Pleading.
· Evidence.
1st Year.
30
· Real Property. 20
· Public Corporations.
· Quasi Contracts.
Sales.
Suretyship.
Torts.
. Trusts.
Wills and Adininistration.
t
International Law is included in the list of essentials from its in-
trinsic importance in our system of law. As its principles are simple
in comparison with municipal law, as their application is less technical,
PREFACE.
vii
and as the cases are generally interesting, it is thought that the book
may be larger than otherwise would be the case.
As an introduction to the series a book of Selections on General
Jurisprudence of about 500 pages is deemed essential to completeness.
The preparation of the casebooks has been intrusted to experienced
and well-known teachers of the various subjects included, so that the
experience of the class-room and the needs of the students will fur-
nish a sound basis of selection.
While a further list is contemplated of usual but relatively less im-
portant subjects as tested by the requirements for admission to the
bar, no announcement of them is made at present.
The following gentlemen of standing and repute in the profession
are at present actively engaged in the preparation of the various case-
books on the indicated subjects:
George W. Kirchwey, Dean of the Columbia University, School of
Law. Subject, Real Property.
Nathan Abbott, Professor of Law, Columbia University. (Formerly
Dean of the Stanford University Law School.) Subject, Per-
sonal Property.
Frank Irvine, Dean of the Cornell University School of Law. Sub-
ject, Evidence.
Harry S. Richards, Dean of the University of Wisconsin School of
Law. Subject, Corporations.
James Parker Hall, Dean of the University of Chicago School of Law.
Subject, Constitutional Law.
William R. Vance, Dean of the George Washington University Law
School. Subject, Insurance.
Charles M. Hepburn, Professor of Law, University of Indiana. Sub-
ject, Torts.
William E. Mikell, Professor of Law, University of Pennsylvania.
Subjects, Criminal Law and Criminal Procedure.
George P. Costigan, Jr., Professor of Law, Northwestern University
Law School. Subject, Wills and Administration.
Floyd R. Mechem, Professor of Law, Chicago University. Subject,
Damages. (Co-author with Barry Gilbert.)
Barry Gilbert, Professor of Law, University of Illinois. Subject,
Damages. (Co-author with Floyd R. Mechem.)
Thaddeus D. Kenneson, Professor of Law, University of New York.
Subject, Trusts.
Charles Thaddeus Terry, Professor of Law, Columbia University.
Subject, Contracts.
viii
PREFACE.
Albert M. Kales, Professor of Law, Northwestern University. Sub-
ject, Persons.
Edwin C. Goddard, Professor of Law, University of Michigan. Sub-
ject, Agency'.
Howard L. Smith, Professor of Law, University of Wisconsin. Sub-
ject, Bills and Notes. (Co-author with Wm. Underhill Moore.)
Wm. Underhill Moore, Professor of Law, University of Wisconsin.
Subject, Bills and Notes. (Co-author with Howard L. Smith.)
Edward S. Thurston, Professor of Law, George Washington Univer-
sity. Subject, Quasi Contracts.
Crawford D. Hening, Professor of Law, University of Pennsylvania.
Subject, Suretyship.
Clarke B. Whittier, Professor of Law, University of Chicago. Sub- :
ject, Pleading
Eugene A. Gilmore, Professor of Law, University of Wisconsin.
Subject, Partnership.
Joshua R. Clark, Jr., Assistant Professor of Law, George Washington
University. Subject, Mortgages.
Ernst Freund, Professor of Law, University of Chicago. Subject,
Administrative Latu.
Frederick Green, Professor of Law, University of Illinois. Subject,
Carriers.
Ernest G. Lorenzen, Professor of Law, George Washington Univer-
sity. Subject, Conflict of Laws.
William C. Dennis, Professor of Law, George Washington University.
Subject, Public Corporations.
James Brown Scott, Professor of Law, George Washington Univer-
sity; formerly Professor of Law, Columbia University, New
York City. Subjects, International Law; General Jurisprudence;
Equity.
JAMES BROWN SCOTT,
WASHINGTON, D. C., January, 1911.
General Editor.
Following are the books of the Series now published, or in press:
Administrative Law
Damages
Bills and Notes
Partnership
Carriers
Persons
Conflict of Laws
Suretyship
Criminal Law
Trusts
Criminal Procedure
Wills and Administration
TABLE OF CONTENTS
INTRODUCTION.
(Page 1.)
PART I.
ADMINISTRATIVE POWER AND ACTION.
CHAPTER I.
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE FUNCTIONS.
Section
Page
1. The Duty to See That the Laws are Executed.
4
2. Powers of Supervision....
6
3. Orders of Individual Application--Administrative and Quasi Judicial
Determinations
10
4. Same-Enforcing and Directing Powers..
18
5. Same--Conditions Annexed to Grant of License.
6. Same Licensing Power and Power to Revoke Licenses.
36
7. Administrative Powers of Regulation-Scope and Validity.
43
33
CHAPTER II.
ADMINISTRATIVE DISCRETION.
8. Construction of Powers..
9. Considerations Guiding Discretion.
10. Validity of Unregulated Discretion.
61
70
82
.
1
CHAPTER III.
FORM AND PROOF OF OFFICIAL ACTS.
11. Action of Official Bodies—The Body must be Conyened..
12. Same-Act of Majority Binds Body.
13. Same-Presumption That All Met or Were Notified.
14. Evidence of Official Action-On Direct Attack.
15. Same-In Enforcement Proceedings.
16. Same-In Collateral Proceedings.
17. Evidence of Official Character..
18. De Facto Office and Authority.
HR. ADD.LAW
(ix)
SC
87
89
91
95
99
105
111
&
TABLE OF CONTENTS.
CHAPTER IV.
Section
NOTICE.
19. In Taxation
20. In the Exercise of the Police Power.
21. In Revoking Licenses.
22. In Removal from Oflice.
23. Sufficiency of Notice..
Page
115
132
160
172
183
.
CHAPTER V.
HEARING AND EVIDENCE.
24. In Connection with Licenses.
25. In Connection with Revenue.
26. In Dealing with Nuisances.
27. In Removing from Office..
28. Power to Obtain Information.
. 192
202
210
214
217
CHAPTER VI.
ADMINISTRATIVE EXECUTION.
29. Distress Warrants.....
30. Abatement of Nuisances-Recognition and Validity of Power.
31.
SameNotice before Abatement..
32. Forfeiture by Administrative Process.
235
243
252
208
PART II.
RELIEF AGAINST ADMINISTRATIVE ACTION.
CHAPTER VII.
ACTIONS TO RECOVER DAMAGES OR MONEY.
33. Against Officers—Judges..
34. Same Against Administrative Officers, Error and Illegality
35. Same --Against Federal Officers..
36. Same Liability on Official Bond.
37. Same -Actions against Subordinates.
38. Same Action against Superior Officer.
39. Actions against Municipal Corporations—In Tort.
40. Same-On Implied Contract....
41. Action against State or Government.
269
280
314
329
332
341
346
359
303
.
.
TABLE OF CONTENTS.
xi
CHAPTIOR VIII.
.
Section
ACTIONS FOR SPECIFIC RELIEF,
42. In General...
43. Injunction-In General..
44. Same-To Restrain Political Acts and Removal from Office.
45. Same To Restrain Enforcement of Ordinances..
46. Same-To Restrain the Assessment and Collection of Taxes.
47. Mandamus
48. Same-Nature and Form of Proceeding.
49. Same The Return...
50. Same--Interest Required to be shown.
51. Mandamus against Board or Public Corporation.
52. Refusal to Obey Mandamus...
53. Province of the Writ of Mandamus.
54. Same-Control of Fairness of Discretion.
55. Mandamus in the Courts of the United States.
56. Certiorari-Note
57. Same Authorities and Actions Subject to Writ.
58. Samen-Scope of Review: What Kinds of Error Corrected..
59. Quo Warranto.
60. Habeas Corpus.
61. Prohibition-Note
62. Judicial Discretion in Allowance of Extraordinary Legal Remedies-
Mandamus
63. SameCertiorari ..
64. SameQuo Warranto.
65. Appeal
66. Defense to Enforcement Proceedings-Note.
Page
382
396
397
408
417
420
422
427
428
431
432
433
445
454
461
404
475
492
498
500
.
500
503
507
517
529
C
CHAPTER IX.
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
67. In General..
68. Police Power—Jurisdictional Prerequisites.
69. Sane Questions of Fact...
70. Military Power....
71. Taxation and Revenue-Jurisdictional Prerequisites.
72. SameQuestions of Law.
73. Same-Questions of Fact.
74. Same-Questions of Value.
75. Railroad Rate Regulation.
76. Corporations
77. Immigration-Question of Condition of Alien.
78. SameQuestion of Alienage as Question of Law.
79. Same-Question of Alienage as Question of Fact.
80. Public Lands.
81. Pensions
82. Postal Administration..
530
531
542
548
556
566
572
577
59-4
002
611
615
622
632
648
637
.
TABLE OF CASES
[CASES CITED IN FOOTNOTES ARE INDICATED BY ITALICS. WHERE SMALL CAPITALS
ARE USED, THE CASE IS REFERRED TO IN THE TEXT]
13
Page
Page
ABEEL V. CLARK,
50 Bath County v. Amy..
459
Ætna Ins. Co. v. New York. 363 Butters v. Dunning..
.66, 443
Ælna Life Ins. Co.'V. Jones. 93 Baumgartner v. Hasty...
244
Allbutt v. General Council of Med- BEAURAIN Y. SIR WA. SCOTT. 271
ical Education & Registration.. 542 Bcdford v. Ricc.
113
Allbutt v. General Council...443, 463 Belcher v. Farrar,
156
Allegheny City V. Millville, etc., Beley v. Naphtaly.
615
R. CO.......
36 Bell's Gap R. Co. v. Common-
Allen v. Sharp.
529 wealth
115
American Casualty Ins. Co. v. Fy- Belt v. State..
372
ler
442 Bennett v. Whitney.
307
American School of Magnetic Beyer v. Tanner...
306
Healing V. McAunulty.
637 Bisscil v. Jeffersonville..
99
Amperse v. Kalamazoo..
451 Blacket v. Blizard...
88
Amy v. Supervisors..
432 Blue v. Beach...
51
Amy v. Supervisors..
.303, 345 Board of Com'r's of Huntington
Arus V. Ayer..
51 County v. Heaston..
Armstrong v. Murphy.
443 | Board of Education of Cincinnati
Arnson v. Murphy.
325 v. Tolk..
350
Ashby v. TVhite..
296 Board of Health of City of Yon-
ASHBY V. WHITE.
293 kers v. Copcutt.
141
Asher V. Cabell..
307 Board of Supirs of Bureau County
Ashley v. Port Huron..
347 v. Chicago, B. & Q. R. Co.... 517
Attorney General v. Dary
88 Board of Supirs of Stephenson Co.
Attorney General V. Guilford
V. Danny..
362
County Justices..
443 Bollman's Casc.
517
Attorney General v. Northampton 473 Boston & 14. R. R. v. Folsom. 468
Attorney General v. Sullivan. 493 Bos V. Allen...
396
Auffmordt v. Hedden..
204 Boyd v. United States.
217
Averill v. Smith.
316 Boyer v. Jones..
242
Ayer's, In re...
396 Boyle, In re..
553
Ayers v. Hatch..
66 Bradlcy v. Tisher..
276
Ayers v. Hatch.
463 | BRADLEY V. FISHER
271
Bridge St., etc., Co. v. Hogadone.. 268
Bagg's Case....
423 Brittain v. Kinnaird.....
535
Baldwin v. Smith..
249 | Brown v. District Council of Nar-
Baldrin V. Smith.
345 ragunsett
517
Ball v. Pattridge.
464 | Broun v. Perlins,.
243
Ballou v. State..
372 Broun V. TV alker.
217
Bartlett v. Boston.
87 | Burton Stock Car Co. v. Traeger.. 579
Barton v. Syracuse.
350 BUSHELL'S CASE..
272
Bassett v. Godschall..
284 Butterworth v. United States.. 517
Bates & Guild Co. v. Payne: 662 Buttfield v. Stranahan........60, 160
Bates & Guild Co. v. Payne.. 422
202, 548
FR.ADM.LAW
(xiii)
.
+
0
0
1
.
xiv
TABLE OF CASES.
.
0
C
.
Page
Page
Buttrick v. Lowell......
356 CORDIONWEALTH V. HAMER........ 163
Byrne v. Chicago General R. Co. 36 Commonwealth v. Kanc.
113
Commonwealth v. Kinsley.
160
529
Cana v. United States...
217 Commonwealth v. Kinsley.
Calder V. Halket..
535
Commonwealth . Shortall..
556
345 | Commonwealth v. Sisson
154
Campbell v. Phelps.
529
Candee, Ex parte.
453 Commonwealth v. Sisson.
Common.ucalth v. Slifer..
175
175
CAPEL V. CHILD.
193
395 Commonwealth v. Wall..
Carr v. United States.
134
Carter V. Colby..
87
Commonwealth v. Yost..
Carter V. Harrison.
296 Cooper V. Board of Works for
Wadsworth District..
319
252
Cary V. Curtis..
Case v. Hall..
107 Corcoran v. Board of Aldermcn of
Cambridge
Central of Georgia Ry. V. Wright 122
122, 126
217
Chapman 1. Limerick.
86 Counselman v. Hitchcock..
111
Chegaray v. Jenkins.
339 Courser v. Porcers..
Cherry v. Commonwealth..
Coxe Bros. & Co. v. Lehigh Valley
193
36
R. Co....
Chester v. Wabash, etc., Co...
18
355
422 Craig v. Charleston..
Chicago v. Burtice..
422
Chicago v. Manhattan Cement Co. 347 Crampton v. Zabriske.
CUMMINGS V. BANK..
589
Chicago, M. & St. P. R. Co. v.
State
594
6
Cunningham v. Neagle..
Chicago & N. W. R. CO. V. Dey..
87 Czarra v. Board of Medical Sup’rs 185
Chicago & R. I. R. CO. V. Whipple 480
Chicago, etc., R. Co. v. Nebraska.. 150 Daniels v. Hathaway.
306
Child v. Benius.
161 Darlington v. Mayor..
347
Chin Bali Kan v. United States... 616 DAUGHERTY V. BROWN.
104
Chin YOW v. United States.. 630 Davies, In re....
229
Chin Y010 v. United States. 499 DAVIS V. COMMONWEALTH.
85
Cicero Lunber Co. v. Cicero.
84 Day v. Day...
21+
City of Aurora v. Schoberlien... 520 DC Camp v. Archibala
222
City of Chicago v. Burtice.
579 Decatur v. Paulding..
438
City of Chicago v. Chicago City R. Deens V. Baltimore.
251, 416
Co.
408 Delaney v. Flood.
413
City of Lowell v. Archambault.. 36 De Lima v. Bidwell.
561
City of Ottawa v. People.... 432 De Lima v. Bidwell.
345
City of Philadelphia v. Scott. 134 | Den ex dem. Murray v. Hoboken
City of Salem v. Eastern R. Co... 150 Land & Improvement Co........ 235
City of San Antonio v. White... 356 Detroit v. Martin..
363
Clinkenbeard v. United States.. 529 Detroit, etc., R. Co. v. Osborn. 126
Cochrane v. Frostburg.
347 Devine v. Belt...
449
Cohen v. New York.
350 Doane v. Chicago City R. Co.. 36
Colon v. Lisk....
268 Dobbins v. Los Angeles.
413
Colton v. Hanchett...
.336, 422 Dodd v. Francisco..
76, 200
Commissioners v. Selley.
431 Dolan, Appeal of.
487
Commissioners of Enquiry... 217 | Doll v. Evans..
242
Commissioners of Highways v. Dooley v. United States...
376
Harper ...
468 Doolittle v. Supervisors of Broome
Commissioners of Maxton v. Com-
County
422
missioners of Robeson County.. 443 Dorn v. Backer.
301
Conimon Council of Oshkosh v. DORN V. BACKER.
539
State
487 | Downer F. Lent.
301
Commonwcalth v. Beaumarchais.. 364 Dows vi CTIICAGO.
417
Conimonwealth v. Emery... 217 | Drainage Com'l's v. Griffin.
408
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TABLE OF CASES.
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DREWE V. COULTON...
293 Genova's License..
164
DUFFIELD V. SCHOOL DIST.
50 GIBBONS V. UNITED STATES. 371
Dullam v. Willson.
172 Gilbert v. Columbia Turnpike Co. 91
Dullani v. Willson.
497 Gilbert V. Columbia Turnpike Co. 529
Duncan 1. Lynchburg
350 | Gillespie v. Palmer.....
302
Dunn 2. Burleigh..
267 Gillespie v. Palmer..
204
Durgin 1. Mlinot..
32 Glidden Ü. Harrington.
575
Golden V. Department of Health. . 142
Burp v. Lce...
24% Gonzales v. Williams.
618
Easton v. Calendar.
297 Gonzales v. Williams.. 345, 499
Easton v. Calendar:
561 Gordon V. Farrar..
296
Eckhardt v. Buffalo.
26 Gordon v. Livingston...
290
Eckhardt v. Buffalo.
421 Gordon v. United States.
226
Eddy v. Board of Health,
251 GORDON V. UNITED STATES.
370
Edson v. Crangle...
267 Goreinors of Bristol Poor v. Wait 529
Elcin v. United States.
204, 499 Gray v. Ayres...
244
Elbin v. Wilson..
303 GREEBWAY V. HURD..
317
Isidred v. Sexton.
107 | Greer v. Dorency.
292
Eldred v. Sexton..
345 Gregory v. Broolis.
290
Elliott v. Swartwout.
316 | GREGORY V. MAYOR.
31
Erskine V. Hornbachu.
341 Grindley v. Barker.
87
Hvans ». Leucis..
497 Grindley v. Barler..
345
Ere v. State...
242 Groenvelt v. Burwell... 211, 222, 466
GROENVELT v. BURWELL.
272
Falls v. Cairo..
362 Gross' License, In re...
80
Fargo V, Hart..
421 Gross' License, In re...
529)
HATIT Y. KOEPPEL.
312 | Grove v. Van Duyn.
276
Feather V. Regina.
372 Guden, In 1e.
.67, 183
Holsenthal v. Johnson.
122 Gundling v. Chicago
85
Field v. People.
4 Guptail v. Teft.
337
Fields v. Stolilcy.
244 Groin v. Barton..
242
Fire Department of City of New
York v. Gilmour...
514
Hagar V. Reclamation Dist. No.
Fire Department of City of NC10.
108
117
York v. Gilmour
Hagar v. Reclamation Dist. No.
Fischer v. St. Louis.
85
108
529
Fisher v. McGirr...
268
Hale v. Henkct.
217
Pitter V. Commonwealth.
364 Halloran v. McCullough.
285
Fitts v. McGehee.
396
Ham v. Board of Police of Boston 175
HLAHERTY, IN RE.
84
Hamilton Traction Co. V. Parisit.. 36
Flying Fish, The.
332
HAMMOND V. HOWELL.
272
Ft. Plain Bridge Co. v. Smith. 243
Harbaugh v., Martin.
92
Foster V. Van Wych.
479
Harlow V. Pike.
126
Francis V. Francis.
36
HARMAN V. TAPPENDEN .
293
FRENCIL Y. TYAN.
643
Harrington v. Board of Aldermen
Fuller v. Colfax Co...
10
of Providence.
144
Fullcr v. Colfax Co..
529
Harrington v. Glidden.
572
Harrington v. Gliddon.
529
Gage v. Censors of New Hamp- Harris, Ex parte..
453
shire Electric Medical Society.. 193 Harrison v. People..
67
Gage v. Censors of New Hamp- Harrison v. People...
443, 463
shire Electric Medical Society., 463 Hart v. Albany..
243
Galbraith v. Littiech.,
90 | Hartman v. Wilmington.
16
Galbraith v. Littiech.
529 | Hartman v. Wilmington.. ... 144, 492
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TABLE OF CASES.
V.
Page
Page
Hassel's Case...
433 Interstate Commerce Commission
Hathaway v. Hinton.
307 v. Cincinnati, N. 0. & T. P. R.
Faverty u. Bass.
257 Co.
20
Harves v. Brewer.
418 Interstate Commerce Commission
Hazard v. Israel..
345 V. Cincinnati, etc., R. Co....... 529
Health Department of City of Interstatc comincrce Commission
New York V. Rector, etc., of v. Illinois Cent. R. Co.......... 601
Trinity Church.....
145
Health Department of City of
Jackson v. People...
473
New York V. Rector, etc., of Jacob (Tomlins) Law Dictionary,
Trinity Church...
529
London, 1809, v. Discretion..... 61
Heath v. State...
113
Janvrin, In re..
26
Heister v. Metropolitan Board of Jeffries v. Ankeny.
294
Health
137 Jenkins v. Waldron.
294
Fendricics v. Gonzales.
334 John Giles' Case.
433
Henry v. Barton...
70 John Giles' case.
72
Herr v. Central Kentucky Lunatic
Johnson v. Stedman.
105
Asylum )
395 Johnson v. Stedman..
345
Hill v. Bigge.
283 Johnson v. Tousley.
644
Hill v. Boston..
346 Johnston v. District of Columbia 350
Hilton V. Merritt.
580
Jones v. Com'rs of Moore County 443
Hines v. Charlotte.
347 Jones v, Williamsburg..
347
Hoke v. I'ield...
86 Joyce v. Chicago.
190
Hopkins Smethwicis Local
Joyce v. Chicago.
492
Board of Health.
256
Hopson, Appeal of.
77, 525
Kansas Home Ins. Co. v. Wilder.. 602
Horton v. Garrison.
89
Kavanagh, Ex parte.
196
Houghton v. Payne.
667
Keenan v. Pcrry.
177
Hover v. Barkhoof.
307
Keenan v. Southworth.
344
Howard v. First Independent
Keiser v. Lincs.
77
Church
36
Kemp v. Neville.
270
II oward v. United States.
331
Kendall v. Stolces..
284
Hubbell V. Goodrich.
244
Kendall v. United States..... 434, 454
Hubbell V. Goodrich.
345
Kendall v. United States.
6
Huey v. Richardson.
306
Kentucky & I. Bridge Co. v. Louis-
Huffmire v. Broolilyn.
350
ville & N. R. Co...
13
Huling y. Ehrich.
130
Kentucky & I. Bridge Co. v. Louis-
Huling v. Enrich.
421
ville & N. R. Co.....
228
Hutton v. Camden.
136, 212
KERRISON V. SPARROW.
396
Hutton V. Camden.
529
King v. Bishop of Litchfield.
434
Illinois State Board of Dental Ex-
KING V. BISHOP OF LONDON.
197
aminers v. People. ...
72 | King y. Davenport
246
Illinois State Board of Dental Ex-
King v. Davenport
34.
aminers v. People.
443, 463 | King v. Hayes
154
Indiana v. Gobin....
307 King v. Venables
529
Inhabitants of Quincy V. Kennard 38 King v. Whcelcr
420
Inhabitants of Rutland y. Worces- King County Elevated R. CO., Mat-
ter County Com'rs.
504
ter of......
36
Interstate Cominerce Commission
Kinneen v. Wells...
294
V. Alabama Midland R. Co...... 597 Kuntz v. Sumption.
123
Interstate Commerce Commission
Kursheedt Mfg. Co., In re....... 576
V. Alabama Midland R. CO..... 529
Interstate Commerce Commission
La
Croix V. Commissioners of
V. Brimson.
222 T'airficld County.....
500
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'xvii
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Page
La Croix v. County Commissioners 16 Afartin V. Symonds
... 72
Laidlaw v. Abraham..
570 Mason v. Fearson..
70
Lanborn v. County Com'rs.
363 Neeker v. Van Rensselaer,
93
Landau v. New York.
354 | Mceler v. Van Rensselaer.... 243, 345
Lange v. Benedict.
269 Metropolitan Board of Health v.
Langenberg v. Decker.
21.7 Heister
137
Langenberg v. Decker.
499 Metropolitan Board of Health v.
Langford v. United States.
368 Heister
421, 521
Lantz v. Hightstown..
39, 487 Metropolitan Milk & Cream Co. v.
Lauterjung, Matter of.
482
New York....
40
Lawton v. Steele.
262 ) Miles v. Worcester
350
Lawton V. Steele.
345 Mill v. Harclocr.
339
Lcm Moon Sing v. United States.. 616 Miller v. Horton.
535
Levin v. Burlington..
356 Miller v. Horton... 154, 251, 313, 345
Lery v. New York.
346 D[iller v. l'ade.
77
Licenses, In re......
82 | Brills r. Brooklyn.
350
Lillienfeld v. Commonwealth. 198 Milicaukee Iron Co. v. Schubcl... 479
Lillienfeld's Case.
185, 529 Morford v. Board of Health of As-
Lincoln v. Hapgood
290 bury Park.....
30
Lincoln v. Smith
268 Mostyn v. Fabrigils.
280
Lincoln v. Worcester
359 MOVERS V. SMEDLEY.
396
Lingo V. Burford.
102 Muller v. Com’rs of Buncombc Co. 70
Lingo V. Burford.
421 | Aunlu v. Frinli....
528
Little y. Barreme.
332 alunn v. Corbin.
213
Little V. Barreme.
552 Murray 7. Hoboken Land & Im-
Little v. Denn.
102
provement Co.....
235
Little v. Madison..
354 DI usgrove v. Chun Tccong Toy. 284
Livingston v. Jefferson.
284 Alygatt v. Washburn.
301
Loesch V. Koeller.
154 MYGATT V. WASIIBUIN.
500
Love v. Judge of Recorder's Court 84
Lovell v. Seebacic.
257
Lowe v. Conroy.
306
Nealy v. Brown.
029
542 Ncaly v. Brown.
Lowe v. Conroy..
90
421 NEALY V. BROWN.
LOUCIl v. Archambault..
243
Linde v. Winnebago Co..
86 Neff v. Paddock..
Ncff v. Paddocli.
345
McCord v. High...
303 Nelson v. State Board of Hcalth.. 29
McCormick v. Fitch.
242 New London v. Brainard..
422
McCoy V. Curtice.
89, 107 Ncroman v. Supervisors of Living-
NICCOY v. Curtice.
345 ston County....
362
NicGregor v. Supervisors.
92 New Orleans v. Railroad Co.. 579
McIlhenney v. Wilmington. 356 NICHOLS V. UNITED STATES.
377
McLean v. Jephson.
556 | Nichols V. Walker....
561
BIcLean v. Jephson.
301, 529 Nickerson v. Thompson.
290
McLeod v. Scott.
70 Nishimura Ekiu v. United States 611
DI CNutt v. Livingston..
345 Nishimura Elciu v. United States 499
Magnetic School of H caling v. Alc- Noble v. Union River Logging R.
Annulty
422 Co.
638
Dlaguire v. Smock.
36 Noble v. Union River Logging R.
Jagwire v. Tyler.
517 Co.
422
Al artin v. Lemon
88 Noel v. Peoplc...
84
Martin v. Mott.
548 North American Cold Storage Co.
wlartin V. Mott
284, 345 V. Chicago..
256
Dartin V. State
161 North American Cold Storage Co.
Martin V. State
520
V. Chicago...
.154, 251, 421
FR.ADM. LAW-b
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xviii
TABLE OF CASES.
.
.
215
.
1
Page
Page
North German Lloyd S. S. Co. v. People v. Busse
447
Hedden
566 | People v. Butler Street Foundry
Norwalls St. R. Co.'s Appeal. 525
Co.
217
People v. Collier
474
Origet v. Hedden.
208
People v. Collins
111
Oshkosh v. State.
100
People v. Collins
463
Otis 1. Bacon.
334 People v. Common Council of Syr-
acuse
500
Palmer v. MCDI ahon..
257
PEOPLE Y. DENTAL EXAMINERS. 73
Partridge v. General Council of
People v. Department of Health.. 463
Medical Education and Regis-
People v. Department of Health of
tration of United Kingdom.. 285
City of New York.
167
Pascal v. Sulliran...
576
People v. Dunne
446
Pasmore v. Oswaldthistle Urban
People v. Fairchild
508
Council
448
People v. Fairchild
497
Patterson v. Miller.
109
People v. Feitner
204
Patterson V. Miller.
113, 345
People v. French
Payne v. United States.
667
People v. French
215, 483
Peavey v, Robinson.
296
People v. Glennon
21.)
Pecli, In re.
193
People v. Goodwin
479
Pehrson v. Ephraim City.... 185
Pennsylvania R. Co. y. Montgom-
People v. Grant
70, 443
ery County Pass. R. Co..... 86
510
People v. Healy
463, 497, 516
People v. Allegany County Sup’rs 503 People v. FI ealy
.
204, 483 PEOPLE V. HIGGINS.
170
People v. Barker
70
People v. Bell .
204 People v. Hilliard
People v. Hopson
112
People v. Board of Assessors of
City of Brooklyn.
478 Prople v. Hopson
529
Pcople v. Board of Com'l's of Po-
People v. Humphrey
185, 492
lice
500 | People v. Illinois State Board of
l'eople v. Board of Com’rs of Po-
Dental Examiners.
62
lice and Excise of City of
People v. Illinois State Board of
Brooklyn
192
Dental Eraminers.
403
People v. Board of County Can- People v. Kelly
217
vassers of Onondaga County... 445 People v. Lindblom
48,5
People v. Board of Education of People v. McCoy
165
City of Quincy..
... 495 People v. McCoy
529
People v. Board of Health of City Pcoplc v. IcGlyn
200
of Yonkers.
139 People v. cyer's
164
People v. Board of Health of City People v. Morton
179
of Yonkers.
474, 492, 5-12 People v. Morton
463
People v. Board of Police of Met- People v. Murray
86
ropolitan Police Dist. of State People v. National Bank..
242
of New York..
480 People v. New York, L. E. & W.
People Board of Railroad
R. CO......
9
Com'rs
474 P'cople v. Norton
284
People v. Board of Supirs of People v. O'Brien
217
Greene County.
443 | People v. Olsen
502
People v. Board of Supirs of Mad- People v. Parker
488
ison County...
95 | People v. Railroad Com'rs.
474
People v. Board of Sup'rs of Mad- People v. Regents of University of
ison County..
463 Michigan
429
People v. Brighton.
468 People v. Rice
445
People v. Burt
474 People v. Supervisors of Queens
People v. Bush
474 County
500
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TABLE OF CASES.
xix
0
0
433
+
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0
Page
Page
People v. Supervisor's of St. Larc- RESERVOIR Co. V. MACKENZIE.... 31
rence County
474 Rex v. Archbishop of Canterbury 434
People v. Supervisors & Town Rex v. Asker
434
Clerk of Ohio Grove Tp., Mercer Rex v. Glamorganshire
403)
County
427 | Rcx v. London
449
People v. Syracuse
500 Rex V. Rosewell
24+
People v. Vaite
507 Rex v. Venables
16+
l'cople V. Vaite
497 RCX V. Williams
28+
People v. Weber
113 | Rex v. Young & Pitts.
People 2. TVhitcoin
4997 | Rcxford v. State...
372
People y. Whitlock
178 Reynolds v. Schultz.
210
People v. JF hitloclo,
497 | Reynolds v. Schultz.
422
People v. Tillcox
26 Richmond Co. v. Ellis.
618
People v. JVillianis
91 | Riggs V. Johnson Co..
462
People ex rel. Linton v. Brooklyn RIPLEY V. GELSTON.
318
Heights R. Co..
10 Roberts v. United States.
443
People's Nat. Banko v. Marye. 421 | Robertson v. Sichel..
345
Perry 2. Reynolds.
2.96 Rockland v. Rockland Tater Co. 579
['ersons, Ex parte..
72 Rodiun v. Harcourt....
113
Philadelphia v. Scott.
529 Romero v. United States.
114
Pike County Com’rs v. People. ... 428 Rooke v. Withers...
301, 561
Pittsburgh, C., C. & St. L. R. Co. Rosenbaum V. Bauer.
402
V. Backus.
122 Rosenthal v. State Board of Can-
Pittsburgh, C., C. & St. L. R. CO.
vassers
44.3
V. Backus.
421 Rounds v. Mansfield.
107
Pittsburg, etc., Ry. V. Board of Runkile v. United States.
S6
Public Works of West Virginia 417
Platt Bros. V. IVaterbury.
350
St. Joseph v. Levin...
217
Porter 2. Purdy...
306
Salem v. Eastern R. Co.... 251, 529
l'ost 2:. Tornship Board of Spar-
SALEM Y. RAILROAD Co..
535
443, 4:51
Sanborn, In re..
220
Potts v. Breen
43
Sangamon County v. Broucn. 523
Poits v. Breen.
345, 463 Saranac Land & Timber Co. v.
Powell v. Bullis.
487
Roberts
396
I'rovident Saving Life Assur. Soc.
SAVACOOL V. BOUGHTON. .
310
7. Cutting..
604
Sawyer, In re.
399
Prudcn V. Love.
2:37
Satyer, In re..
499
Salycr v. Railroad..
99
QUEEN V. ARCIBISHOP OF CANTER-
Sawyer v. State Board of Health 517
BURY
174 Schaezlein v. Cabaniss..
56
Queen v. Воістап
492
SCHLAUDECKER V. MARSHALL
79
Queen u. Justices of Walsall. 196
Schoemaker, In re....
196
Queen v. Licensing Justices.. 198
Schicuchoro v. Chicago.
Queen 2. Wood
492 | Seaman v. Patten..
287
Queen, The, v. \Vood.
534 Sharp v. Wakefield.
70
Shoup v. Shields.
339
Raaf v. State Board of Medical Shumway v. Baker Co....
579
Examiners
528 Shurtleff v. United States.
183
Rail v. Potts.
296 Silver V. Ladil.
644
Randall v. Brigham.
276 Sims, Matter of.
222
Raymond v. Fish.
251, 3.13 Skinner v. Morgan.
307
Regina V, Bartlett
198 Smith, In re.
542
Regina v. Boteler
70 South v. Maryland.
307
Regina v. Bowman
331 Spalding v. Vilas.
284, 290
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xx
TABLE OF CASES.
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Page
Page
Sparrow, Ex parte.
463 Siate v. Lyons.
495
Sparrow, In re.
77 State v. McGarry..
177
Speed v. Common Council.
500 State v. DIeyers..
70
Spencer, Appeal of..
526 State V. Newari..
.
495
Spencer & Gardner v. People. 577 | Siate v. New Lindell Hotel Co.... 130
Spencer & Gardner v. People. 529 State v. Ronart..
87
sprayberry v. Atlanta.
164 State v. Ryan
222
Spring v. Hyde Parlo.
362 | State V. Sadler
579)
Stanley y. Albany County Supirs 582 State v. St. Louis..
175
Slanley v. Supervisors of Albany State v. Schroff
490
County
579 | State v. Schultz
166
State v. Board of Com’rs of Jef- Siate v. Sheboygan..
30
ferson County
422 State v. Smrith
1765
State v. Board of Com'rs of Tippe- State v. Stanton.
397
canoe County.....
517 | State v. Sullivan
.188, 214
State v. Board of Health of As- State v. Sullivan
497
bury Park..
492 State v. Tomah
185
State v. Board of Health of Hud- State v. Topelca
497
son County.
66 State v. Wade
307
State v. Burdge
51 State v. Weimer
101
STATE V. BURDGE
49 | Siate V. IV cimer
529
State v. Burger
500 State v. Tilson
99
State v. Carroll
112 State Board of Equalization v.
State v. Chittenden
453 People
579
State v. Chittenden
215, 484 State ex rel. Ives v. Kansas Cent.
State v. County Treasurer
500 R. Co......
O
Siate v. Davis
217 State Railroad Tax Cases.
121
State v. Dierberger
113 State Railroad Tax Cases..
421
State V. District Court of First Steinkraus V. Hurlbert.
1.96
Judicial District..
526 Stephan v. Daniels.
364
Siate v. Doherty
177 Stetson v. Kempton.
334
State V. Elkin
500 Stetson 1. Kempton.
301
State v. Dyans
492 Strickfaden v. Zipprick.
303
State v. Fond du Lac.
468 Stuart 1. Palmer...
121
State v. Francis
447 Stutsman County v. Wallacc. 341
STATE V. FREMONT, E. & M. V. R. Swift v. Poughkeepsie.......362, 479
Co.
23
State V. Hanlon
62
Taunton v. Taylor..
156
State V. Harkins
175 Taylor v. Louisville & N. R. CO... 583
State v. Houser
530 Taylor v. Louisville & N. R. CO... 422
State v. Hlouser
399
Teal y. Felton.
326
State V. Jennings
425 Tcall v. Felton.
328
State V. Johnson
9, 26, 399 Tearney v. Smith.
306
State V. Justices
463 Terry 2. Huntington.
561
State v. Justices of Inferior Court
Thomas v. Alleghany County. 428
of Morgan County.
61 Thompson v. Farrer.
315, 533
State v. Kansas Cent. R. Co.. 529 | Thompson v. Gibbs.
39
Siate v. Kellogg
185 Thompson y. Koch.
523
State v. Kupferie..
497 Thompson v. Koch.
77
State v. La Fayette Co..
453 | Tindal v. Wesley..
395
State v. Lamos..
183 Tinlcler V. Board of Worls for
State v. Lanos,
102, 529 Wandsworth Dist.....
29
State v. Lean
425 Tomlinson v. Board of Equaliza-
State v. Lut..
76 tion
202
0
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TABLE OF CASES.
xxi
.
0
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,
27
.
Page
Page
Tomlinson V. State Board of Van Cleef v. Chicago
... 354
Equalization
492 | Vanderheyden v. Young..
552
Tracy v. Swartwout.
314 Van Nortwick v. Bennett.
35
Tracy v. Swartrout..
334 Van Nortwick v. Bennett.
492
Tracy 1. Williams...
279 Vestry of St. John's v. Hutton.. 134
Traer 1. State Board of Medical Vittum v. People.....
576
Examiner's
200
TRAIY v. BOSTON DISINFECTING
Warne v. Varley
531
Co.
159
Tarne 1. Varley
345
Trainor V. Board of Auditors....
Watkins, Ex parte...
498
Treasurer of City of Camden v.
132
Waye v. Thompson
Mulford
529
466 1 aye v. Thompson
Trustees of Schools of Town 21
Weber V. Baird..
422, 576
Weil v. Ricord.
137
N., Range 5 W. v. School Di-
rectors of Union Dist..
505
242
Weimer V. Bunbury.
WELLER V, SNOVER.
266
Totiore v. Tracy.
243, 246
Underwood v. Green.
.313, 542
Wheeler v. Patterson..
296
UNDERWOOD V. GREEN.
143
Whidden V. Cheever..
313
Tinion Pac. R. Co. v. Cheyenne... 419
Whitbeclo v. Hudson... 419, 468
United States v. Bailey
217
WHITCHURCH, EX PARTE. .
United States v. Beaucrs
221
White v. Bcrry....
408
United States v. Black.
648
WHITE V. REDFERN..
133
United States v. Black 443, 463
Whitely v. Platte County
93
United States v. Douglass
196,
Whitely v. Platte County.
529
448, 463
Whitfield v. Lord Le Despencer... 341
United States v. Duell
526
Whitney v. Board of Delegates... 480
United States v. Great Falls
Wilcox v. Hemming.
258
Mfg. Co....
372
TVilcox v. Hemming..
345
United States v. Griswold
329
Wilcox v. McConnel.
86
United States v. Hitchcock
646
Wilcox V. People..
176
United States v. Hitchcocli ..443, 463
Tilcor v. People...
497
United States v. Jones
382
Williams V. Errant.
66
United States v. Jung Ah Lung.. 616
Williams v. School District..
89
United States v. Ju Toy.
625
WILLY V. MULLEDY..
50
United States v. Ju Toy..
499
Tilson V. Alabama Great South-
United States v. Lee
387
ern R. Co......
89, 90
United States v. Lynch
376
Wilson v. Eureka City.
82
United States v. Minor
632
Wilson V. Eureka City.
529
United States v. Pearson
462
TVisconsin Tel. Co. V. Milicaukee 36
United States v. Ritchie
13
IT ise v. Withers.
284, 552
United States v. Schurz .458, 644
Wood v. Farnell..
345
United States v. Sing Tuck....... 622
TV orden v. Witt.
307
United States v. Sing Tuck...... 499
UNITED STATES V. THROCKMOR- Yamataya v. Fisher...
616
TON
635 Yates v. Lansing.
276
United States Fidelity & Guar- Yeager, Ex parte..
443
anty Co. v. Linehan.
607 Young, Ex parte..
396
.
0
.
CASES ON
ADMINISTRATIVE LAW
INTRODUCTION
1
1
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 munici-
pal corporations, taxation, highways, elections, intoxicating liquors,
nuisances, public healthi, public lands, etc.
The common element, which gives the subject its unity, is the exer-
cise of administrative power affecting private rights, and the term “ad-
ministrative 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.
The more general bearings of this branch of the law, from a con-
stitutional and comparative point of view, have repeatedly engaged the
attention of eminent publicists. E. Dicey, The Law of the Constitu-
tion, 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 govern-
ment, before and at the time of the revolution, had given rise to a
theory of separation of powers, according to which certain classes of
controversies involving matters of public administration were with-
drawn from the regular courts and assigned to distinct administrative
tribunals.
2
1 See F. J. Goodnow, Comparative Administrative Law, N. Y., 1893 (re-
viewed 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 crimin:ll 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 con-
denin private property for public use.
FR.ADM. LAW.-)
2
INTRODUCTION.
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 mat-
ters of public administration, should develop principles in many re-
spects 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 be-
tween 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 consti-
tuted trespass or conversion. Municipal corporations have generally
been conceded immunity from liability where they act in a govern-
mental 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 adminis-
tration. 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 gov-
erned by considerations of public policy. See sections 62-64 of this
collection
Moreover, even in those states in which in ordinary civil contro-
versies the forms of action have been reduced to one, there survives, as
a needless legal archaism, the distinctiveness of the different extraor-
INTRODUCTION.
3
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 mis-
understandings, 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
inyolves 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 adminis-
trative 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 determina-
tion. Where such determination has the effect of impairing common-
law 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 ad-
ministrative 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 construc-
tion. 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 provi-
sions 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 there-
fore the nature and the mode of exercise of administrative power
and the system of relief against administrative action. This limita-
tion 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 admin-
istrative law.
}
PART I
ADMINISTRATIVE POWER AND ACTION
CHAPTER I
EXECUTIVE, QUASI JUDICIAL, AND QUASI
LEGISLATIVE FUNCTIONS
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 surren-
dered 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 lias not divested himself, by express grant to the people,
come within his prerogative. But upon the principle of our govern-
ment, 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 ex-
ecutive, the question is, not whether the power in question has been
granted to the people, but whether it has been granted to the execu-
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)
*
Ch. 1)
5
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
1
*
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 de-
partments. 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
110 specific power. What would have been its operation, if the Coir-
stitution 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
Court of the United States that an enumeration of the powers of a
department of the government operates as a limitation and restriction
of a general grant
This clause of the Constitution, like those dividing the powers
of government, and declaring the attributes of each, is the declaration
of a general principle, which is "not to be regarded as a rule to fetter
and control, but as matter merely declaratory and directory." It con-
fers no specific powers, "nor does it enjoin any specific duty." "This
power of general supervision," says an able commentator on American
law, "is a cluty enjoined on the federal and state executives." "It
would be dangerous, however, to treat this clause as conferring any
specific power which they would not otherwise possess. It is to be re-
garded as a comprehensive description of the duty of the executive to
watch with vigilance over all the public interests." Walker's Amer-
ican Law, 103. The Governor is not to execute the laws himself, but
is to see them, executed. This duty is performed by lending the aiil
and power of the executive arm to overcome resistance to the law.
The history of the federal and state governments affords practical
expositions of this clause of the Constitution, in conformity with this
construction. The executive is to see the laws executed, not as he
may expound them, but as they may be expounded by those to whom
that duty is intrusted. To the Legislature is delegated the authority
to make the laws, to the courts the authority to expound them, and to
the executive the authority to see them executed, as they are thus
interpreted. His interpretation is proper only when specially re-
quired by law, or where the ordinary means are inadequate to the ob-
ject of their design. But to assume the power of expounding, and
also that of executing the law, would be a usurpation of the functions
of the judiciary, and concentrating, in one department, powers ex-
pressly declared, by the Constitution, to belong to two separate and
distinct departments.
* 3
2 That the Governor shall see that the laws are faithfully executed.
3 "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-
6
(Part 1
ADMINISTRATIVE POWER AND ACTION.
SECTION 2.-POWERS OF SUPERVISION
STATE ex rel. IVES, Atty. Gen. v. KANSAS CENT. R. CO. et al.
(Supreme Court of Kansas, 1891. 47 Kan. 497, 28 Pac. 208.)
Application by the State, on relation of the Attorney General, for
a peremptory writ of mandamus to compel the Kansas Central Rail-
road Company and the Union Pacific Railway Company to repair the
tracks of the former company. Alternative writ quashed on motion of
defendants.
The powers and duties of the board of railroad commissioners of the
state, as prescribed by the statute, so far as necessary to be referred
to in the determination of this case, are as follows:
"Par. 1328. Said commissioners shall have the general supervision
of all railroads in the state operated by steam, and all express com-
panies, 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 ex-
pedient in order to promote the security, convenience and accommoda-
tion of the public, said commissioners shall inform such corporation
stitution, to take care that the laws be faithfully executed. This is a doc-
trine that cannot receive the sanction of this court. It would be vesting in
the President a dispensing power, which has no countenance for its support,
in any part of the Constitution, and is asserting a principle which, if carried
out in its results, would be clothing the President with a power entirely to
control the legislation of Congress, and paralyze the administration of jus-
tice.” Kendall v. United States, 12 Pet. 524, 612, 613, 9 L. Ed. 1181 (1838).
Under the power to take care that the laws be faithfully executed, the
President may depute a United States marshal to protect the person of a
justice of a federal court while engaged in the performance of his judicial
duties. 'Cunningham v. Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55
(1890).
Ch. 1)
7
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
of the improvement and changes which they adjudge to be proper, by
a notice thereof in writing, to be served by leaving a copy thereof,
certified by the commissioners' secretary, with any station agent, clerk,
treasurer, or any director of said corporation, and a report of the
proceedings shall be included in the annual report of the commissioners
to the Governor. Nothing in this section shall be construed as reliev-
ing any railroad company, or other transportation corporation, from
their responsibility or liability for damages to person or property.'
Act March 8, 1883, c. 124, § 5.
HORTON, C. J.* The question for our consideration in this case is
not what power the Legislature of the state may delegate or confer
upon the board of railroad commissioners, but what power is con-
ferred by the existing statutes. It is contended upon the part of the
state that the finding of the railroad commissioners of the 13th day of
May, 1891, that the Kansas Central Railroad "is in an unsafe and
dangerous condition for the transportation of persons and property
by reason of the insufficient condition and weight of the iron rails in
the tracks thereof," is final and conclusive upon the defendants and
this court. Further, that the order of the commissioners, requiring the
Kansas Central Railroad to be relaid with new rails of standard pat-
tern, and of not less weight than 56 pounds to the lineal yard, is also
final and conclusive; that, in proceedings in this court to compel a
compliance with the order of the commissioners, the statute neither
contemplates nor allows any issue to be made or inquiry had of the
condition of the railroad examined by the commissioners, or of the
reasonableness of the order made by them. The defendants claim that
the order of the commissioners, under the terms of the statute, is
advisory only. If the finding of the commissioners and their order
is final and conclusive, this court lias no power to hear or determine
any issue of fact, except upon the allegation that the defendants have
refused to comply with the order for repairs. If the finding and
order of the commissioners are final and conclusive, this court, upon
a railroad company refusing a compliance therewith, must at once,
upon proper application being made, register the order and enforce
the same literally.
The power which is claimed by the commissioners to be conferred
upon them, so far as this case is concerned, must be found, if found
anywhere, in section 5, c. 124, Sess. Laws 1883 (paragraph 1328,
Gen St. 1889). The Legislature has not conferred upon the com-
missioners by said statute the power claimed. There is nothing in the
statute which states, or can be construed to state, that the orders
of the commissioners concerning repairs upon a railroad shall be
fonal or conclusive, or that the courts must carry out their deter-
minations or judgments. Upon the other hand, the statute provides
only that whenever, in the judgment of the commissioners, any re-
4 Only a portion of the opinion is printed.
8
(Part 1
ADMINISTRATIVE POWER AND ACTION.
pairs upon a railroad are demanded for the security, convenience, and
accommodation of the public, they shall inform the railroad corpora-
tion of the improvements and changes which they adjudge to be nec-
essary, and then report their proceedings to the Governor. No-
where is it stated in the statute that the recommendations of the com-
missioners concerning repairs must be complied with nolens volens by
the company; nor does the statute authorize the Governor to carry
into execution the order of the commissioners. As to the necessary
repairs of a railroad, the finding and order of the commissioners, under
the statute, are advisory only—notliing more. The order cannot be
enforced by the commissioners; it cannot be enforced by the Gover-
nor; and it cannot be enforced specifically by this or any other
court.
In the first report of the commissioners, their powers under said
section 5 were very clearly and fully defined by them. They said:
"The commissioners, under this section, have no power to enforce an
order. They can simply advise the company in fault of the changes
desired or deemed necessary. To liave invested the commission
with the power to enforce its own orders, it would have been rec-
essary to have clianged the character of the board and the scope of its
functions and powers. It would have been necessary to have given
to the commission all the powers of a court of chancery, to be ex-
ercised within the scope of its assigned duties, with such ministerial
officers attached to the board as are usual and necessary to such tribu-
nals, to execute its injunctions and mandates. It would have rendered
it necessary to have instituted a formal investigation, upon proper
complaint and notice to the company complained of, and the rendition
of a formal judgment and decree upon the evidence which should
be submitted to the board. Manifestly, in such case, it would have
been improper for the board to have acted upon knowledge and infor-
mation gathered from personal observation, or the ex parte statements
of individuals, as much so as it would be for regularly organized courts
to act judicially upon evidence which has never been disclosed to the
opposite party to the suit. The supervisory powers of the commis-
sion would in such case extend only to such matters as should be
formally brought before it by complaint, and no such complaint would
be made until some one liad become the suffering victim of some
neglect, failure, or other violation of duty on the part of a railroad
company. Thus the chief benefits which were intended to be secured
by giving the commissioners general supervisory powers would be
sacrificed by imposing upon them those limitations in the exercise
of functions which are necessary to impress upon judicial decrees
the weight and character of impartiality.” First Annual Report of
Railroad Commissioners for 1883, p. 4.
It is an historical fact, well known by those who attended the ses-
sion of the Legislature of 1883, and by those acquainted with the
proceedings of that body, that there was a bitter contention among its
Ch. 1)
9
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
members as to what power should be conferred upon or delegated to
the commissioners to be appointed under the act or bill then pending
for adoption. A part of the members, under the lead of Hon. Eugene
F. Ware and others, were favorable to the delegation to the com-
missioners and the court's full authority for the enforcement of their
orders; others, and a majority, opposed the delegation of such power;
and the result was that advisory action only on the part of the com-
missioners was provided for. The national interstate commerce act
of February 4, 1887, differs widely from the act of 1883 of our Legis-
lature, in expressly providing for writs of mandamus to be issued out
of the United States Circuit Courts to compel railroad companies to
comply with the orders of the national commission, and also for pun-
ishing in such courts railroad companies for violating or neglecting
to obey any lawful order or requirement of the national commission.
Volume 1, Interstate Commerce Commission Reports, 665-671. * * *5
5 See State v. Johnson, 61 Kan. S03, 60 Pac. 1068, 49 L. R. A. 662 (1900)
declariog the act establishing a court of visitation for the regulation of rail-
roads unconstitutional, as commingling judicial and legislative powers.
See People y. New York, Lake Erie & Western Railroad ('ommany. 104 Y.
Y. 58, 9 N. D. 856, 58 Am. Rep. 484 (1887): "Iu regard to the facts there is
no dispute. A plainer case could hardly be presented of a deliberate and in-
tentional disregard of the public interest and the accommodation of the pub-
lic. The railroad commissioners have thought that it was essential for
those purposes that a new and enlarged building for passengers and freight
should be erected. That, it is true, was a question for them to decide. The
statute (Laws 1882, c. 353) created a commission of competent persons'; re-
quired from them an official constitutional oath; assigned to them an office
for the transaction of business; provided a clerk to administer oaths to wit-
nesses, and a marshal to summon them; gave full power of investigation
and supervision of all railroads and their condition, with reference not only
to the security, but accommodation, of the public; and declared that whenever,
in their judgment, it shall appear, among other things, that any addition to
or change of the stations or station-houses is necessary to promote the securi-
ty, convenience, or accommodation of the public, they shall give notice to the
corporation of the improvements and changes which they deem to be proper,
and, if they are not made, they shall present the facts to the Attorney Gen-
eral for his consideration and action, and also to the Legislature. All these
things have been done. The commissioners have heard and decided. They
can do no more. After so much preliminary action by a body wisely organ-
ized to exercise useful and beneficial functions, it might well be thought un-
fortunate that some additional machinery had not been provided to carry
into effect their decision. By creating, the statute recognizes the necessity
for such a tribunal to adjust conflicting interests and controversies between
the people and the corporation. It has clothed it with judicial powers to
hear and determine, upon notice, questions arising between these parties,
but it goes no further. Its proceedings and determinations, however
characterized, amount to nothing more than an inquest for information.
We find no law by which a court can carry into effect their decision.
At this point the law fails, not only by its incompleteness and omis-
sion to furnish a remedy, but by its express provision that 110 request or ad-
vice of the board, 'nor any investigation or report made by it,' shall have the
effect to impair the legal rights of any railroad corporation. The Attorney
General is given no new power. He may consider the result of the investi-
gation made by the commissioners, and their decision, and so may the con-
pany; but we must look further for his right of action, and the corporation,
disregarding the judgment of the commissioners, may continue the manage-
ment of its business in its own way-may determine in its own discretion to
10
(Part 1
ADMINISTRATIVE POWER AND ACTION.
SECTION 3.-ORDERS OF INDIVIDUAL APPLICATION-
ADMINISTRATIVE AND QUASI JUDICIAL
DETERMINATIONS
FULLER et al. v. COUNTY OF COLFAX.
(Circuit Court of United States, District of Nebraska, 1882. 14 Fed. 177.)
On motion to remand cause to state court.
DUNDY, District Judge. This cause was removed into this court
from a state court held within and for Colfax county. The defend-
ant moves to remand the same, for the reason that the suit was re-
moved from an appellate court and not from the one in which the suit
what extent, and in what manner, the exercise of a public trust requires it
to subserve the 'security, convenience, and accommodation of the public.'
Section 6 of the New York act of 1882, above referred to, was subse-
quently changed, so as to read as follows: “If in the judgment of the board,
after a careful personal examination of the same, it shall appear that repairs
are necessary upon any railroad in the state, or that any addition to the
rolling stock, or any addition to or change of the station or station-houses, or
that additional terminal facilities shall be afforded, or that any change of
the rates of fare for transporting freight or passengers or in the mode of
operating the road or conducting its business, is reasonable and expedient
in order to promote the security, convenience and accommodation of the pub-
lic, the board shall give notice and information in writing to the corporation
of the improvements and changes which they deem to be proper, and shall
give such corporation an opportunity for a full hearing thereof, and if the
corporation refuses or neglects to make such repairs, improvements and
changes, within a reasonable time after such information and hearing, and
fails to satisfy the board that no action is required to be taken by it, the
board shall fix the time within which the same shall be made, which time it
may extend. It shall be the duty of the corporation, person or persons oun-
ing 01 operating the railroad to comply with such decisions and recommen-
dations of the board as are just and reasonable. If it fails to do so the board
shall present the facts in the case to the Attorney General for his considera-
tion and action, and shall also report them in its annual or in a special re-
port to the Legislature.
New York Railroad Law (Laws 1890, c. 565) $ 161.
See People ex lel. Linton v. Brooklyn Heights R. Co., 172 N. Y. 90, 64 N.
E. 788 (1902). The way to compel action by railroad corporations is by first
applying to the railroad commissioners, and not by judicial proceedings in
the first instance.
FIFTEENTH ANNUAL REPORT OF THE INTERSTATE COMMERCE COMMISSION FOR
THE YEAR 1901.
Complaints.
The work of the Commission which pertains directly to regulation involves
two distinct kinds of procedure: One based upon formal petitions filed with
the Commission under section 13 of the law, and involving regular hearing
and investigation, the preparation of a report setting forth the material facts
found and conclusions reached by the Commission, and issuance of an order
dismissing the case or directing the carrier or carriers complained against
to correct the rate or practice which may be held unlawful. The other kind
of procedure arises in the performance by the Commission of its duty, under
the twelfth section, to "execute and enforce the provisions of the act,” and
Ch. 1)
11
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
was brought. If this be true it must, of necessity, be decisive of the
inotion.
In considering the motion two questions arise–First, is a board of
county commissioners a court within the meaning of the removal
acts of Congress; and, second, is a mere claim for damages for right
of way for a public road, presented to the county board, a suit within
the meaning of the said removal acts, so long as the claim there re-
mains for consideration,
The state law provides for paying for the right of way necessary in
locating all public roads. If damages are sustained by the owners of
land through which a road is located, the county is primarily liable
therefor, and the manner of making the claim as well as the mode of
inaking the payment is here perfectly well understood. After the
location of the road all that seems to be necessary for the injured
party to do is to make known to the county board the fact that dam-
ages are claimed for the right of way. If the claim is thought to be
just and reasonable the county board allows it, and draws warrants
on the county treasurer for the amount of damages awarded. If the
claimant should be dissatisfied with the amount of damages so award-
ed him, he can appeal to the district court of the proper county, where
the case is to be tried de novo. Thus it will be seen that the remedy
provided by law in cases like the present one is alike speedy, effica-
cious, inexpensive.
The plaintiffs were damaged, as they claim, in consequence of a
public road being located through their lands; and they presented
to the county board a claim in the sum of $5,000 therefor. The
board reduced the claim, or sum allowed, to $250, and the claimants
appealed to the district court, all of which was done in strict accord-
relates to complaints presented by letter, the examination of tariffs on file
in the office in connection with such complaints, and correspondence with
shippers and carriers concerning the same. Complaints of the latter class
are called informal complaints, to distinguish them from the formal petitions
or complaints which constitute the basis of contested cases.
No order can be issued upon an informal complaint and inquiry. The main
object of that method of procedure is the speedy disposition, through settle-
ments, readjustments plainly required by the statute, or advice given by the
Commission, of matters in which regulation is demanded, and thus to limit
the number of contested cases upon the docket. It would be an injustice to
complaining shippers and communities, amounting frequently to denial of
reliet to compel the institution of a regular proceeding every time cause of
complaint is brought to the attention of the Commission; and the number of
cases requiring the hearing of witnesses, oral or written argument, and
formulated decision would probably be greater than the Commission could
dispose of properly or without intolerable delays. The great mass of com-
plaints are handled and disposed of by the Commission by preliminary in-
vestigation and correspondence or conference with carriers and shippers.
The matters considered and acted upon in this way range from overcharges
upon small shipments to rate relations affecting the interests of entire com-
munities, and are of the same nature as those which find their way to the
regular case docket of the Commission.
6 Act Cong. March 3, 1875, C. 137, § 3, provided that the petition for re-
moval must be filed “in such suit in such state court before or at the term
at which said cause could be first tried and before the trial thereof."
12
(Part 1
ADMINISTRATIVE POWER AND ACTION.
ance with the law. In presenting a claim to the county board for
allowance, no formal proceedings are at all necessary, no plead-
ings of any sort are required to be filed, no process issued for any
purpose whatever connected with the matter, and no formal judg-
ment follows either the rejection or allowance of a claim by the
board. The claim, when so made, is simply audited, allowed, or re-
jected, as justice and reason seem to require. In case of an ap-
peal to the district court, the appeal is docketed, and pleadings are
filed, and the cause then in all respects proceeds in the usual and
ordinary way. The cause is then, in every sense of the term, in a
court, and is also, then, in every sense of the term, a suit.
Now, what is usually understood by the words "court" and "suit,"
where we find them in legislative enactments or in legal proceedings?
Blackstone says a “court is a place wherein justice is judicially ad-
ministered.” To administer justice judicially, there must be a judge,
and usually, though not always, there are also other officers, such as
clerk and sheriff or marshal. That also implies the right to issue
compulsory process to bring parties before the court, so that jurisdic-
tion may be acquired over the person or property which forms the
subject-matter of the controversy. To administer justice judicially
two parties to a controversy must exist; there must be a wrong done
or threatened, or a right withheld, before the court can act. Then a
hearing or trial follows, and the "justice to be judicially adminis-
tered” results in a formal judgment for one of the parties to the con-
troversy. The judgment to be pronounced usually has full binding
force, unless modified or reversed. The courts can issue the proper
process to carry their judgments into effect, and in that way sub-
serve the great ends of their creation. But this is not so with the
county boards in this state. They are not clothed with the neces-
sary power to issue compulsory process to bring parties litigant be-
fore them. They cannot, in cases like the one under consideration,
issue process to compel the attendance of witnesses. They cannot
and do not enter formal judgments in cases presented to them for
their consideration. They have no authority to execute any judg-
ments if they should thoughtlessly undertake to enter them. They
have but one party before them on whom their orders can operate.
In short, the county board is so totally unlike a court, and so differ-
ent in its constitution and its objects, that I am unable to see any
similarity between them.
If the county board cannot be regarded as a court, it will follow as
,
a necessary consequence that no suit was pending in this case until the
appeal from the order of the board was filed and docketed in the dis-
trict court. Two parties to a suit seem to be almost indispensable:
one who seeks redress, and the other who commits a wrong or with-
holds what is justly due another. The parties must stand in such re-
lation to each other that the machinery of the court will operate on
them when their powers and their aid are invoked. No such a con-
Ch. 1)
13
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
dition of things existed so long as this claim remained before the
county board. But when the appeal was taken, and docketed in the
district court, we then for the first time find a suit pending in the
court where none of the elements of either are wanting. It is such
a suit that can be removed from such a court, as the removal acts of
Congress contemplate.
I conclude, then, that the board of county commissioners of Colfax
county is not a “court,” and that this “suit" was never pending in any
other court than the district court of Colfax county, from which it
was removed to this court, and that it was, therefore, properly re-
moved herein.
The motion to remand is overruled.?
McCRARY, Circuit Judge, concurs.
KENTUCKY & I. BRIDGE CO. v. LOUISVILLE & N. R. CO.
8
*
*
(Circuit Court of United States, District of Kentucky, 1889. 37 Fed. 567, 2
L. R. A. 289.)
JACKSON, Circuit Judge.
In support of their position
that judicial powers are conferred upon and exercised by the commis-
sion, counsel refer to various provisions contained in sections 12, 13,
14, 15, 16, 17, and 18 of the act [Act Feb. 4, 1887, c. 104, 24 Stat.
383-386 (U. S. Comp. St. 1901, pp. 3162-3168)], which, together with
the rules of practice adopted, show, as they insist, that a proceeding
before the commission, like the one in question, involves and embodies
features and earmarks of judicial procedure and action in the follow-
ing particulars, viz.: First, a petition, corresponding with the petition
or bill in equity, is filed; second, notice is issued for, and service
thereof made upon, the defendant or party complained of, conforming
to, and corresponding with, the process of subpæna in courts of the
United States, requiring such defendant to satisfy the complainant, or
to appear and answer the same; third, the filing of defendant's answer,
as in equity, which makes up or forms the issue; fourth, the issu-
ance of subpoenas requiring the attendance of witnesses, or for the
taking of depositions, upon the issues made up by the answer; fifth,
the assignment of a time and place for the hearing, when and where
the parties appear in person or by attorney, witnesses are sworn and
examined, and arguments are made orally or by brief; sixth, when
the conclusion is reached, a written report, corresponding in all re-
7 "The right of appeal from the action of boards in their administrative
character is frequently conferred by statute. The appeal in such cases is
not permitted because the action of the board is considered judicial; but it
is granted as a method of getting the matter involved before a court, that it
may be determined judicially." Board of Commissioners of Huntington Coun-
ty v. Heaston, 144 Ind. 583, 591, 41 N. E. 457 (1895).
See, also, United States v. Ritchie, 17 How. 525, 15 L. Ed. 236 (1854).
8 Only a portion of the opinion is printed.
14
(Part 1
ADMINISTRATIVE POWER AND ACTION.
spects to an opinion, is delivered, filed, and published; seventh, the
order of the commission is recorded by its secretary, as decrees in
equity are recorded by clerks of court; and, eighth, a copy of such
order, under the seal of the commission, issues to the defendant, re-
quiring obedience thereto.
This mode of procedure certainly conforins in many respects to the
regular practice of courts, and is no doubt authorized by the law;
but does it involve the performance of judicial acts, and the exercise
of judicial powers, by the commission, as claimed ? It is well settled
that Congress, in ordaining and establishing "inferior courts," and
prescribing their jurisdiction, must confer upon the judges appointed
to administer them the constitutional tenure of office, that of holding
“during good behavior," before they can become invested with any
portion of the judicial power of the government; and if the act to
regulate interstate commerce does in fact establish an inferior court,
the commissioners appointed thereunder for certain fixed periods are
clearly not such judges as can be invested with any portion of the
judicial power of the United States, and their decision in matters af-
fecting personal or property rights could have no force or validity.
But does the interstate commerce law undertake either to create an
"inferior court" or to invest the cominission appointed thereunder with
judicial functions? We think not. While the commission possesses
and exercises certain powers and functions resembling those conferred
tipon and exercised by regular courts, it is wanting in several essential
constituents of a court. Its action or conclusion upon matters of
complaint brought before it for investigation, and which the act desig-
nates as the “recommendation," "report," "order,” or “requirement” of
the board is neither final nor conclusive; nor is the commission in-
vested with any authority to enforce its decision or award. Without
reviewing in detail the provisions of the law, we are clearly of the
opinion that the commission is invested with only administrative
powers of supervision and investigation, which fall far short of
making the board a court, or its action judicial, in the proper sense
of the term. The commission hears, investigates, and reports upon
complaints made before it, involving alleged violations of or omission
of duty under the act; but subsequent judicial proceedings are con-
templated and provided for, as the remedy for the enforcement, either
by itself or the party interested, of its order or report in all cases where
the party complained of or against whom its decision is rendered
does not yield voluntary obedience thereto. By the fourteenth and
sixteenth sections of the act it is provided that the report or findings
made by the commission "should thereafter, in all judicial proceed-
ings, be deemed prima facie evidence as to each and every fact found."
The commission is charged with the duty of investigating and re-
porting upon complaints, and the facts found or reported by it are
only given the force and weight of prima facie evidence in all such
judicial proceedings as may thereafter be required or had for the
Ch. 1)
15
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
enforcement of its recommendation or order. The functions of the
commission are those of referees or special commissioners, appointed
to make preliminary investigation of and report upon matters for sub-
sequent judicial examination and determination. In respect to inter-
state commerce matters covered by the law, the commission may be re-
garded as the general referee of each and every Circuit Court of the
United States, upon which the jurisdiction is confeșred of enforcing
the rights, duties, and obligations recognized and imposed by the act.
It is neither a federal court under the Constitution, nor does it exer-
cise judicial powers, nor do its conclusions possess the efficacy of
judicial proceedings. This federal commission has assigned to it the
duties, and performs for the United States, in respect to that interstate
commerce committed by the Constitution to the exclusive care and
jurisdiction of Congress, the same functions which state commis-
sioners exercise in respect to local or purely internal commerce, over
which the states appointing them have exclusive control. Their valid-
ity in their respective spheres of operation stands upon the same
footing. The validity of state commissioners invested with powers as
ample and large as those conferred upon the federal commissioners has
not been successfully questioned, when limited to that local or inter-
nal commerce over which the states have exclusive jurisdiction; and
no valid reason is seen for doubting or questioning the authority of
Congress, under its sovereign and exclusive power to regulate com-
inerce among the several states, to create like commissions for the
purpose of supervising, investigating, and reporting upon matters or
complaints connected with or growing out of interstate commerce.
What one sovereign may do in respect to matters within its exclusive
control, the other may certainly do in respect to matters over which it
has exclusive authority.
We are also clearly of opinion, that this court is not inade by the
act the mere executioner of the commissioner's order or recommen-
dation, so as to impose upon the court a nonjudicial power.
The principle announced in these cases o would sustain counsel's posi-
tion, if this court, under the provisions of the interstate commerce law,
is limited and restricted to the mere ministerial duty of enforcing an
order or requirement of the commission, whether it be regarded as a
judicial or a nonjudicial tribunal. But such is not, in fact, the juris-
diction which this court is called upon to exercise. The suit in this
court is, under the provisions of the act, an original and independent
proceeding, in which the commission's report is made prima facie
evidence of the matters or facts therein stated. It is clear that this
court is not confined to a mere re-examination of the case as heard and
reported by the commission, but hears and determines the cause de
novo, upon proper pleadings and proofs, the latter including not only
9 Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 (1792); U. S. v. Ferreira, 13 How.
40, 14 L. Ed. 42 (1851).
16
(Part 1
ADMINISTRATIVE POWER AND ACTION.
t
the prima facie facts reported by the commission, but all such other and
further testimony as either party may introduce, bearing upon the
matters in controversy. The court is empowered “to direct and
prosecute, in such mode and by such persons as it may appoint, all
such inquiries as the court may think needful to enable it to form a
just judgment in the matter of such petition; and on such hearing the
report of said commission shall be prima facie (not conclusive) evi-
dence of the matters therein stated.” No valid constitutional objec-
tion can be urged against making the findings of the commission prima
facie evidence in subsequent judicial proceedings. Such a provision
merely prescribes a rule of evidence clearly within well-recognized
powers of the Legislature, and in no way encroaches upon the court's
proper functions. 10
HARTMAN V. MAYOR, ETC., OF CITY OF WILMINGTON.
(Superior Court of Delaware, 1894. 1 Mary. 215, 41 Atl. 74.).
Certiorari by Maria C. Hartman against the Mayor and Council
of City of Wilmington to review proceedings of a municipal board of
health. Exceptions dismissed.
The plaintiff was the owner of a dwelling house in the city of
Wilmington, against which proceedings were taken by the board of
health for the abatement of an alleged nuisance resulting from a wet
cellar. The record upon which certiorari issued simply disclosed
that the executive officer of the board of health reported the follow-
ing nuisance (among others): "M. C. Hartman, 705 South Harrison
St., wet cellar.” The provisions of the statutes, .charter, and ordi-
10 See Sidney and Beatrice Webb, The Parish and the County, p. 419:
"Neither the individual magistrate nor the divisional sessions made any
distinction between (1) a judicial decision as to the criminality of the past
conduct of particular individuals; (2) an administrative order to be obeyed
by officials; and (3) a legislative resolution enunciating a new rule of con-
duct to be observed for the future by all concerned. All alike were, in theory,
judicial acts. Though many of these orders were plainly discretional, and
determined only by the justices' views of social expediency, they were all
assumed to be based upon evidence of fact, and done in strict accordance with
law."
Id. p. 309: "And though, under particular statutes, individual justices or
pairs of justices could appoint parish officers, allow their accounts, authorize
rates, direct the mending of founderous roads, order relief to a destitute
person, command a father to pay a weekly sum for the maintenance of a
bastard, apprentice a poor child, or remove à pauper to his place of settle-
ment, the fact that there was in all these cases a right of appeal to the Su-
perior Court of Quarter Sessions indicates that, in the eye of the law four
county rulers have been, not prefects controlled by a bureau, but justices
controlled by a court of law'; that even their apparently executive duties
had to be done 'with judicial forms and in a judicial spirit'; and that their
most discretional orders partook of the nature of judicial decisions, to be
given only on evidence, and according to the straight rule and course of the
law.'"
Sée La Croix v. County Commissioners, 50 Conn. 321, 324, 325, 47 Am. Rep.
648 (1882).
Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
17
nances bearing upon the subject are referred to in the argument of
counsel.
Cullen, J. This is a certiorari under very peculiar circumstances,
and we will not attempt to go into any extended review of the differ-
ent matters and principles upon which this case rests, but shall merely
state the general principles involved, upon which we dismiss these ex-
ceptions.
It appears that there was a proceeding originally commenced under
an act of assembly vesting in the board of health of this city certain
powers and authority in relation to matters mentioned under their im-
mediate jurisdiction. The result of the action of the board of health
is not a judgment. This is a power that is conferred and which is
acted on by the board of health by force of the police power, which is
part of the sovereignty of the state. The state may delegate those
powers, and it has in this case delegated to the board of health the
power, upon complaint coming before them, to determine whether
or not a thing is deleterious or injurious to the community generally;
and they may examine that matter, and inquire into and investigate
it. And upon this investigation, if the person upon due notice does
not remove that which is deleterious--you may call it a nuisance—then
the board of health have the right to remove or abate the nuisance.
It is contended that there was no notice given in this case before
they proceeded. Every person, of course, has his right to a day in
court; but the board of health act upon these matters like a grand
jury, for instance, where there is a charge against a person--on one
side of the matter. When the matter is determined by them, it is not
a judgment. They simply determine that a certain matter is a nui-
sance. Then, when it is so determined, it is their duty to notify the
party that a nuisance exists on his premises, and that he is required
to remove it within a certain time, which is by them specified. The
act does not prescribe a particular time in which it must be done, be-
cause the time it takes to remove it must necessarily depend upon the
nature and character of the nuisance to be abated. Five days might
be enough in one case, while it might take two, three, five, or six
months in another.
When it is determined by the board of health, acting under the
police power vested in them by the Legislature or the sovereign power
of the state, that a certain thing is a nuisance, it becomes their duty
for the first time to notify the party of the fact that a nuisance exists
on his place; that is, notice is given to him of that fact. It is nothing
more or less, in our judgment, than that "a nuisance exists on your
place, and we require you to remove it in so many days.” The party's
rights have not been invaded. It has been a mere matter of investi-
gation. And then he may, if he see fit, have his day in court. He
has an impartial, full, and complete remedy. For the first time the
case enters into trial when both parties are represented. He may
FR.ADM. LAW.-2
18
(Part 1
ADMINISTRATIVE POWER AND ACTION.
appeal to the chancellor for an injunction to stay the action, and com-
mence an action whereby his rights may be determined by proceed-
ings in chancery. If he sees fit to allow the matter to go on, and if
the board of health have violated the powers vested in them in re-
moving the matter, then they become personally liable.
Were it otherwise, what would become of the community, and what
would police regulations amount to? Parties must act in an emer-
gency. If the board of health act in an emergency, still there is time
left for the opposite party, if he wishes, to contest their action. Their
action is not a legal judgment, such as is contemplated under the law,
to which a certiorari at common law may issue.
We think, therefore, under the circumstances, that this is not a
case in which a certiorari would lie, and therefore dismiss the ex-
ceptions.
SECTION 4.-SAME-ENFORCING AND DIRECTING
POWERS
COXE BROS. & CO. v. LEHIGH VALLEY R. CO.
**
(Interstate Commerce Commission of the United States, 1891. 4 Interst. Com.
R. 535, 576.)
MORRISON, Commissioner. 11
After submitting the pro-
posed findings of fact for the consideration of the Commission, coun-
sel for complainants in his concluding argument said: “As to the un-
reasonableness of the charge, we ask the Commission to find that the
rate of $1.80 is unreasonable within the statute. We do not ask or
care about your honor's establishing any particular rate.
There are a great many ways in which these coal rates can be de-
termined without fixing any arbitrary or inflexible standard.
If they (the carriers) are informed that their present rate is unreason-
able, they will then meet the individual operators of their districts
in consultation, and I am sure some amicable arrangement will be
reached by which both parties can make money."
Counsel for the road said in reply; "That will not do. If this Com-
mission says that the present rates are unreasonable, they must say
so because there is a different rate they have determined to be a
proper one. It will not do for you to make a general finding and
to say: ‘The present rates are unreasonable, but we do not know
what they ought to be. We cannot fix them for you. You must agree
upon them amongst yourselves.' If unreasonable, say to what ex-
tent they are unreasonable—whether to the extent of a cent, or of
many cents, or of a dollar, a ton. Would it be proper for you to lay
*
11 Only a portion of the opinion is printed.
Ch. 1)
19
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
down an abstract principle that would lead to endless confusion in the
application? That would put all at chaos. For Heaven's sake do
not ever make the matter of the proper rates for carrying coal one
to be regulated in a conference between the carrier and the shipper.
If you have been convinced by these petitioners that the present rates
are unreasonable and unjust, then say what the rates ought to be."
Having declared the rates in question to be unreasonable, if we
should act upon the suggestion of counsel for complainants and fix
upon none which may be properly charged, the case before the Com-
mission would be at an end when the railroad company was notified
that its rates were found to be excessive and must be modified. The
Commission having prescribed no measure of reduction, any modi-
fication made in good faith would be a compliance with the re-
quired modification, yet it might be unsatisfactory to complainants
and other operators and fall short of what the law requires. Then
the occasion would be presented when the operators and carriers
might meet and amicably arrange what the charges should be in ac-
cordance with the suggestion of complainants' counsel.
In such a meeting or conference of operators and carriers, where
possible conflict of interest and opinion could arise, it might and most
likely would occur that no satisfactory arrangement would be reached,
and another application to the Commission would be necessary to de-
clare the reduced rates still unreasonable. This process would need
to be repeated until the legal rate was established by successive re-
ductions, made in compliance with a series of determinations of the
Commission that the rates were unreasonable.
In the case under consideration suppose the facts to be, as claimed,
that the charges are excessive as much or more than 50 cents. Un-
der the rule suggested by complainants' counsel, when the rate was
ascertained to be unreasonable it would be so declared, and left with
the shipper and carrier for amicable arrangement. If for any reason
no scale of charges was agreed upon the rate would remain for deter-
mination by the carrier whose rate is challenged. Under such a rule
applied to the subject of this complaint five several proceedings would
be necessary to establish the reasonable rate if in each proceeding the
carrier deemed a 10-cent reduction sufficient. If, impressed with the
belief that the existing rates were not exorbitant, the carrier should
attempt compliance with the Commission's conclusion that they were
excessive by making the least possible reductions, repeated and con-
tinual applications would be necessary to correct a single abuse. Cer-
tainly Congress intended no such absurdity as this; but, as insisted
upon by counsel for the road, when we have been convinced that rates
are unjust, it will be our duty to say what they ought to be, or at
least to determine upon some rate, any charge in excess of which
would be unreasonable. If the duty of the Commission in respect to
unjust and unlawful rates ends when it has been convinced that rates
20
(Part 1
ADMINISTRATIVE POWER AND ACTION.
are unreasonable, and so decided them to be, and for any reason the
Commission may not determine what are, as well as what are not,
reasonable, the regulation provided by the statute begins with com-
plaint and ends in confusion.
The act to regulate commerce, which declares every unjust and
unreasonable charge to be unlawful, and requires its provision to be
enforced by the Commission, confers the power to determine, and im-
poses on the Commission the duty of determining, what are the rea-
sonable rates which the charges may not exceed, as well as what are
unreasonable.
*
INTERSTATE COMMERCE COMMISSION V. CINCINNATI,
N. O. & T. P. RY. CO.
(Supreme Court of United States, 1897. 167 U. S. 479, 17 Sup. Ct. 896, 42
L. Ed. 243.)
1
Mr. Juistice Brewer delivered the opinion of the court.12
It is one thing to inquire whether the rates which have been charged
and collected are reasonable—that is a judicial act; but an entirely
different thing to prescribe rates which shall be charged in the future
-that is a legislative act. Chicago, M. & St. P. Ry. Co. v. Minne-
sota, 134 U. S. 418, 458, 10 Sup. Ct. 462, 702, 33 L. Ed. 970; Reagan
v. Trust Co., 154 U. S. 362, 397, 14 Sup. Ct. 1047, 38 L. Ed. 1014;
Railway Co. v. Gill, 156 U. S. 619, 663, 15 Sup. Ct. 484, 39 L. Ed.
567; Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Com-
inission, 162 U. S. 184, 196, 16 Sup. Ct. 700, 40 L. Ed. 935; Texas
& P. Ry. Co. v. Same, 162 U. S. 197, 216, 16 Sup. Ct. 666, 40 L.
Ed. 940; Munn v. Illinois, 91 U. S. 113, 144, 24 L. Ed. 77; Peik v.
Railway Co., 94 U. S. 164, 178, 24 L. Ed. 97; Express Cases, 117 U.
S. 1, 29, 6 Sup. Ct. 542, 628, 29 L. Ed. 791.
It will be perceived that in this case the Interstate Commerce Com-
mission assumed the right to prescribe rates which should control
in the future, and their application to the court was for a mandamus
to compel the companies to comply with their decision; that is, to
abide by their legislative determination as to the maximum rates to be
observed in the future. Now, nowhere in the interstate commerce
act do we find words similar to those in the statute referred to, giving
to the commission power to “increase or reduce any of the rates"; "to
establish rates of charges"; "to make and fix reasonable and just
rates of freight and passenger tariffs"; "to make a schedule of rea-
sonable inaximum rates of charges"; "to fix tables of maximum char-
ges"; to compel the carrier "to adopt such rate, charge or classification
as said commissioners shall declare to be equitable and reasonable."
The power, therefore, is not expressly given. Whence then is it de-
duced ?
12 Only a portion of the opinion is printed.
Ch. 1)
21
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
In the first section it is provided that "all charges *
shall
be reasonable and just; and every unjust and unreasonable charge
for such service is prohibited and declared to be unlawful.” Then
follow sections prohibiting discrimination, undue preferences, higher
charges for a short than for a long haul, and pooling, and also making
provision for the preparation by the companies of schedules of rates,
and requiring their publication. Section 11 creates the Interstate
Commerce Commission. Section 12, as amended March 2, 1889 (2.3
Stat. 858), gives it authority to inquire into the management of the
business of all common carriers, to demand full and complete in-
formation from them, and adds, "and the commission is hereby all-
thorized to execute and enforce the provisions of this act."
And the argument is that, in enforcing and executing the provi-
sions of the act, it is to execute and enforce the law as stated in the
first section, which is that all charges shall be reasonable and just,
and that every unjust and unreasonable charge is prohibited; that it
cannot enforce this mandate of the law without a determination of
what are reasonable and just charges, and, as no other tribunal is
created for such determination, therefore it must be implied that it
is authorized to make the determination, and, having made it, apply
to the courts for a mandainus to compel the enforcement of such de-
termination. In other words, that though Congress lias not, in terms,
given the conmission the power to determine what are just and rea-
sonable rates for the future, yet, as no other tribunal has been pro-
vided, it must have intended that the commission should exercise the
power.
We do not think this argument can be sustained. If there were
nothing else in the act than the first section, conmanding reasonable
rates, and the twelfth, empowering the commission to execute and
enforce the provisions of the act, we should be of the opinion that
Congress did not intend to give to the commission the power to pre-
scribe
any tariff, and determine what for the future should be reason-
able and just rates. The power given is the power to execute and en-
force, not to legislate. The power given is partly judicial, partly ex-
ecutive and administrative, but not legislative. Pertinent in this re-
spect are these observations of counsel for the appellees:
“Article 2, § 3, of the Constitution of the United States, ordains
that the President 'shall take care that the laws be faithfully executed.'
The act to regulate commerce is one of those laws. But
But it will not
be argued that the president, by implication, possesses the power to
make rates for carriers engaged in interstate commerce.
"The first section simply enacted the common-law requirement that
all charges shall be reasonable and just. For more than a hundred
years it has been the affirmative duty of the courts 'to execute and
enforce the common-law requirement that all charges shall be rea-
sonable and just,' and yet it has never been claimed that the courts, by
implication, possessed the power to make rates for carriers."
22
(Part 1
ADMINISTRATIVE POWER AND ACTION.
We have, therefore, these considerations presented :
First. The power to prescribe a tariff of rates for carriage by a
common carrier is a legislative, and not an administrative or judicial,
function, and, having respect to the large amount of property in-
vested in railroads, the various companies engaged therein, the thou-
sands of miles of road, and the millions of tons of freight carried,
the varying and diverse conditions attaching to such carriage, is a
power of supreme delicacy and importance.
Second. That Congress has transferred such a power to any ad-
ministrative body is not to be presumed or implied from any doubtful
and uncertain language. The words and phrases efficacious to make
such a delegation of power are well understood, and have been fre-
quently used, and, if Congress had intended to grant such a power
to the Interstate Commerce Commission, it cannot be doubted that it
would have used language open to no misconstruction, but clear and
direct.
Third. Incorporating into a statute the common-law obligation rest-
ing upon the carrier to make all its charges reasonable and just, and
directing the commission to execute and enforce the provisions of
the act, does not by implication carry to the commission, or invest it
with the power to exercise, the legislative function of prescribing rates
which shall control in the future.
Fourth. Beyond the inference which irresistibly follows from the
omission to grant in express terms to the commission this power of
fixing rates is the clear language of section 6, recognizing the right of
the carrier to establish rates, to increase or reduce them, and pre-
scribing the conditions upon which such increase or reduction may be
made, and requiring, as the only conditions of its action–First, pub-
lication; and, second, the filing of the tariff with the commission. The
grant to the commission of the power to prescribe the form of the
schedules, and to direct the place and manner of publication of joint
rates, thus specifying the scope and limit of its functions in this re-
spect, strengthens the conclusion that the power to prescribe rates
or fix any tariff for the future is not among the powers granted to
the commission.
These considerations convince us that under the interstate com-
merce act the commission has no power to prescribe the tariff of rates
which shall control in the future, and therefore cannot invoke a judg-
inent in mandamus from the courts to enforce any such tariff by it
prescribed
But has the commission no functions to perform in respect to the
matter of rates, no power to make any inquiry in respect thereto?
Unquestionably it has, and most important duties in respect to this
inatter. It is charged with the general duty of inquiring as to the
management of the business of railroad companies, and to keep it-
self informed as to the manner in which the same is conducted, and
has the right to compel complete and full information as to the man.
Ch. 1)
23
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
ner in which such carriers are transacting their business. And, with
this knowledge, it is charged with the duty of seeing that there is no
violation of the long and short haul clause; that there is no discrim-
ination between individual shippers, and that nothing is done, by re-
bate or any other device, to give preference to one as against another;
that no undue preferences are given to one place or places or individual
or class of individuals, but that in all things that equality of right,
which is the great purpose of the interstate commerce act, shall be
secured to all shippers. It must also see that that publicity which is
required by section 6 is observed by the railroad companies. Holding
the railroad companies to strict compliance with all these statutory
provisions, and enforcing obedience to all these provisions, tends,
as observed by Cominissioner Cooley in Re Chicago, St. P. & K. C. Ry.
Co., 2 Interst. Com. R. 231, 261, to both reasonableness and equality
of rate, as contemplated by the interstate commerce act.
We have not overlooked the statute of Nebraska, nor the decision of
the Supreme Court of that state in respect thereto. This statute was
approved March 31, 1887, a few weeks after the passage of the inter-
state commerce act (Laws Neb. 1887, p. 540), and was obviously largely
patterned upon that act. The general obligations incorporated into
that act in respect to reasonableness of rates, prohibitions of discrim-
ination, undue preferences, etc., are all in the Nebraska statute. A
commission, called “a board of transportation,” is also provided for
(section 11), and is charged with the general duty of enforcing the
act and supervising the railroad companies in the state. Section 17,
which is more full and specific than any to be found in the interstate
commerce act, provides that "said board shall have the general super-
vision of all railroads operated by steam in the state, and shall in-
quire into any neglect of duty or violation of any of the laws of this
state by railroad corporations. * It shall carefully investigate
any complaint made in writing, and under oath, concerning any lack
of facilities,
or against any unjust discrimination against
either any person, firm, or corporation or locality, either in rates, fa-
cilities furnished or otherwise; and whenever, in the judgment of said
board
any change in the mode of conducting its business
or operating its road is reasonable and expedient in order to promote
the security and accommodation of the public, or in order to prevent
unjust discriminations against either persons or places; it shall make
a finding of the facts, and an order requiring said railroad corporation
to make such repairs, improvements," etc.
In State v. Fremont, E. & M. V. R. Co., 22 Neb. 313, 35 N. W. 118,
it appeared that the board of transportation had found that certain
rates enforced upon the road of the defendant company were excessive,
and that certain other rates, less than those in force, were reasonable
and just. On application to the supreme court it was held that the
state was entitled to a mandamus compelling obedience to such deter-
mination, the court observing (page 329, 22 Neb., and page 125, 35
*
24
(Part 1
ADMINISTRATIVE POWER AND ACTION.
N. W.): "In the case under consideration the board found that the
rates and charges of the respondent were excessive; in other words,
that there was unjust discrimination against that part of the state, and,
having so found, the board is clothed with ample power to require
such railway company to reduce its rates and charges. The power of
the board, therefore, to establish and regulate rates and charges up-
on railways within the state of Nebraska is full, ample, and complete."
Without criticising in the least the logic of this decision, it is enough
to say that it is based upon a section which gives wider and more com-
prehensive power to the supervising board than is given in the inter-
state commerce act to the commission, and does not justify the in-
ference that the latter has the same power in respect to prescribing
rates that by such decision was declared belonging to the Nebraska
board of transportation.
Some reliance was placed in the argument on this sentence, found in
the opinion of this court in Cincinnati, N. O. & T. P. Ry. Co. v. In-
terstate Commerce Commission, 162 U. S. 184, 196, 16 Sup. Ct. 700,
705, 40 L. Ed. 935: "If the commission, instead of withholding judg-
ment in such a matter until an issue shall be made and the facts found,
itself fixes a rate, that rate is prejudged by the commission as rea-
sonable." And it is thought that this court meant thereby that, while
the commission was not in the first instance authorized to fix a rate,
yet that it could, whenever complaint of an existing rate was made,
give notice and direct a hearing, and upon such hearing determine
whether the rate established was reasonable or unreasonable, and also
what would be a reasonable rate if the one prescribed was found not to
be, and that such order could be made the basis of a judgment in
mandamus requiring the carrier thereafter to conform to such new
rate. And the argument is now made, and made with force, that,
while the commission may not have the legislative power of establish-
ing rates, it has the judicial power of determining that a rate already
established is unreasonable, and with it the power of determining
what should be a reasonable rate, and enforce its judgment in this re-
spect by proceedings in mandamus.
The vice of this argument is that it is building up indirectly, and
by implication, a power which is not, in terms, granted. It is not to be
supposed that Congress would ever authorize an administrative body
to establish rates without inquiry and .examination; to evolve, as it
were, out of its own consciousness, the satisfactory solution of the
difficult problem of just and reasonable rates for all the various roads
in the country. And, if it had intended to grant the power to es-
tablish rates, it would liave said so in unmistakable terms. In this
connection it must be borne in mind that the commission is not limited
in its inquiry and action to cases in which a formal complaint has been
made, but, under section 13, "may institute any inquiry on its own mo-
tion in the same manner and to the same effect as though complaint
had been made." By section 14, whenever an investigation is made
Ch. 1)
25
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
by the commission it becomes its duty to make a report in writing,
which shall include a finding of the facts upon which its conclusions
are based, together with a recommendation as to what reparation, if
any, ought to be made to any party or parties who may be found to
have been injured. And by sections 15 and 16, if it appears to the
satisfaction of the commission that anything has been done or omitted
to be done in violation of the provisions of the act, or of any law
cognizable by the commission, it is made its duty to cause a copy of its
report to be delivered to the carrier, with notice to desist, and, failing
that, to apply to the courts for an order compelling obedience.
There is nothing in the act requiring the commission to proceed
singly against each railroad company for each supposed or alleged
violation of the act. In this very case the order of the commission was
directed against a score or more of companies, and determined the
maximum rates on half a dozen classes of freight from Cincinnati and
Chicago respectively, to several named Southern points and the ter-
ritory contiguous thereto, so that if the power exists, as is claimed,
there would be no escape from the conclusion that it would be within
the discretion of the commission of its own motion to suggest that the
interstate rates on all the roads in the country were unjust and unrea-
sonable, notify the several roads of such opinion, direct a hearing,
and upon such hearing make one general order, reaching to every road.
and covering every rate. It will never do to make a provision prescrib-
ing the mode and manner applicable to all investigations and all actions
equivalent to a grant of power in reference to some specific matter
not otherwise conferred.
Our conclusion, then, is that Congress has not conferred upon the
commission the legislative power of prescribing rates, either maximum
or minimum or absolute. As it did not give the express power to the
commission, it did not intend to secure the same result indirectly by em-
powering that tribunal to determine what in reference to the past was
reasonable and just, whether as maximum, minimun, or absolute, and
then enable it to obtain from the courts a peremptory order that in the
future the railroad companies should follow the rates thus determined
to have been in the past reasonable and just.
The question certified must be answered in the negative, and it is so
ordered. 13
Mr. Justice HARLAN dissented.
*
13 Section 15 of the interstate commerce act of 1987 (Act Feb. 4, 1987, c.
104, 24 Stat. 384 [U. S. Comp. St. 1901, p. 3165]) read, until 1906, as follows:
"If in any case in which an investigation shall be made by said commission it
shall be made to appear to the satisfaction of the commission, either by the
testimony of witnesses or other evidence, that anything has been done or omit-
ted to be done in violation of the provisions of this act, or of any law cognizable
by said commission, by any common carrier, or that any injury or damage has
been sustained by the party or parties complaining, or by other parties ag-
grieved in consequence of any such violation, it shall be the duty of the com-
mission to forthwith cause a copy of its report in respect thereto to be de-
livered to such common carrier, together with a notice to said commou car-
26
(Part 1
ADMINISTRATIVE POWER AND ACTION.
ECKHARDT V. CITY OF BUFFALO.
*
1
(Supreme Court of New York, Appellate Division, Fourth Department, 1897.
19 App. Div. 1, 46 N. Y. Supp. 204.)
GREEN, J.14 By section 237 of the city charter "the commissioner
shall have full power to enforce and carry out all ordinances, rules
and regulations for the preservation of the public health,
and in case any business or practice is dangerous or detrimental to the
public health, to prohibit the same, and to declare unwholesome
grounds, yards, cellars, buildings and other places, stagnant or un-
wholesome waters, filth and unwholesome matter injurious to health, to
be nuisances, and upon so declaring, the commissioner shall have power
to abate the same in such manner as he may deem expedient, and the
expense may be assessed upon the lands upon or in front of which
such nuisances were, or upon the parcels of land benefited by the abate-
ment of the nuisance, as the common council shall direct.” Laws
1891, c. 105.
rier to cease and desist from such violation, or to make reparation for the
injury so found to have been done, or both, within a reasonable time, to be
specified by the commission; and if, within the time specified, it shall be
inade to appear to the cominission that such common carrier has ceased from
such violation of law, and has made reparation for the injury found to have
been done, in compliance with the report and notice of the commission, or to
the satisfaction of the party complaining, a statement to that effect shall be
entered of record by the commission, and the said common carrier shall
thereupon be relieved from further liability or penalty for such particular
violation of law."
This provision was changed by Act June 29, 1906, c. 3591, § 4, 34 Stat. 589
(U. S. Comp. St. Supp. 1909, p. 1158), as follows: “The commission is au-
thorized and empowered, and it shall be its duty, whenever, after full hear-
ing upon a complaint made as provided in section 13 of this act, or of any
common carrier, it shall be of the opinion that any of the rates, or charges
whatsoever, demanded, charged, or collected by any common carrier or carri-
ers, subject to the provisions of this act, for the transportation of persons or
property,
or that any regulations or practices whatsoever
affecting such rates, are unjust or unreasonable, or unjustly discriminatory,
or unduly preferential or prejudicial, or otherwise in violation of any of the
provisions of this act, to determine and prescribe what will be the just and
reasonable rate or rates, charge or charges, to be thereafter observed in such
case as the maximum to be charged; and what regulation or practice in
respect to such transportation is just, fair, and reasonable to be thereafter
followed ; and to make an order that the carrier shall cease and desist from
such violation, to the extent to which the commission find the same to exist,
and shall not thereafter publish, demand or collect any rate or charge for
such transportation in excess of the maximum rate or charge so prescribed,
and shall conform to the regulation or practice so prescribed. All orders of
the commission, except orders for the payment of money, shall take effect
within such reasonable time, not less than thirty days, and shall continue in
force for such period of time not exceeding two years, as shall be prescribed
in the order of the commission, unless the same shall be suspended or modi-
fied or set aside by the commission or be suspended or set aside by a court
of competent jurisdiction.”
Compare In re Janvrin, 174 Mass. 514, 55 N. E. 381, 47 L. R. A. 319 (1899);
People, ex rel. Central Park, N. & E. R. Co. v. Willcox, 194 N. Y. 383, 87 N.
E. 517 (1909); State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662
(1900).
14 The statement of facts and a portion of the opinion are omitted.
*
Ch. 1)
27
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
*
The question for determination is whether, under the general power
to declare certain matters and things to be nuisances, and to abate
the same in such manner as the official may deem expedient, the
power may be implied to cause new erections to be made, new ap-
pliances, apparatus, and contrivances to be used, and new improve-
inents to be adopted, all in accordance with supposed scientific prin-
ciples of sanitation, and to charge the expense, however costly it may
be, to the landowner, whether he will or no. The question is not
whether the health commissioner had power to cause or order privies
to be put into a proper and decent state, if not in that state; but is
whether he lias the right or power to force on the landowner the
mechanical contrivance of water-closets, with all their requisites and
accessories, instead of the privies, which, sufficient as privies, if kept
in the condition proper for such conveniences, are on his lands for the
purposes of his building there.
Defendant relies upon the cases of Ex parte Saunders, 11 Q. B. Div.
191; Reg. v. Llewellyn, 13 Q. B. Div. 681 ; Reg. v. Wheatley, 16 Q
B. Div. 34; St. Luke's Vestry v. Lewis, 1 Best & S. 865; Hargreaves
v. Taylor, 3 Best & S. 613. But the statutes under which these deci-
sions were made expressly conferred upon the local authorities the im-
portant and extensive powers here claimed to exist by implication from
the simple power to abate nuisances. The public health act provided
that the local authority should serve on the owner or occupier of the
premises on which the nuisance arises a notice requiring him to abate
the same within a time specified, and to execute such works and do
such things as may be necessary for that purpose. Upon default in
complying with the requisitions of the notice, or if the nuisance, al-
though abated, is, in the opinion of the local authority, likely to recur on
the same premises, tle latter shall complain to a justice, and the justice
shall summon such person to appear before a court of summary juris-
diction. The court, if satisfied that the alleged nuisance exists, or
that, although abated, it is likely to recur, shall make an order requir-
ing such person to comply with all or any of the requisitions of the
notice, or otherwise to abate the nuisance, within a time specified in
the order, and to do any work necessary for that purpose. A penalty
was imposed for noncompliance with the order. Other sections of
the statute (which were not involved in any of these decisions) enabled
the local authority to require particular things to be erected, by order-
ing that a sufficient water-closet, earth-closet or privy should be pro-
vided, "and the appeal against an order under those sections is to the
central board, who have better capabilities of dealing with the pro-
priety of such orders than the magistrates.” Ex parte Whitchurch,
6 Q. B. Div. 545. It was held, however, that the order of the magis-
trates must specify what works and things the owner should execute
and do for the purpose of not only abating the nuisance, but also to
effectually prevent its recurrence. Reg. v. Wheatley, 16 Q. B. Div.
34.
28
(Part 1
ADMINISTRATIVE POWER AND ACTION.
The decision in Ex parte Whitchurch has very pertinent application
to a case where, as here, no express statutory power has been conferred
upon the local sanitary authorities to direct the execution of such
works, and to require such things to be done, as they may deen nec-
essary to abate or remove the nuisance and also to effectually prevent
its recurrence. It clearly indicates that, in the absence of any such
legislative authority conferred, the acts of the health commissioner
in this case were without legal sanction, and constituted a plain usurpa-
tion of power. And a reference to the English act and the decisions
thereunder is important for various reasons. No such extensive
powers as these existed at conunon law, and it was therefore deemed
necessary or expedient to create and confer them by act of parliament.
A mere general power to abate nuisances in such manner as the sani-
tary boards should deem expedient would hardly accomplish the pur-
poses desired, or attain the beneficent objects within the contemplation
of the Parliament. Nothing should be left to implication, but ample
powers of regulation and direction should be conferred in express
terms. The assumption or usurpation of power by the local authorities
upon grounds of supposed expediency or necessity of the case ought
not to be sanctioned, but the power should be expressly conferred. The
right of landowners to manage, improve, or alter their property and
buildings in such manner as they may deem fit and proper ought not
to be interfered with or controlled by local officials, except in pursuance
of legislative enactment conferring the power and regulating its ex-
ercise. The power should not be left to the local board to be exercised,
maylap in a capricious or arbitrary manner, and be summarily executed
or enforced, but should be subject to the control and review of other
and superior authorities or magistrates, and the landowner should
have ample opportunity to be lieard.
The conservation of public interests and the people's health and safe-
ty must be looked to, but, at the same time private rights of property
must be guarded and protected against inwarrantable invasion, and
the undue exercise of authority must be restrained within reasonable
and proper bounds. These purposes were all intended to be accom-
plished by the public health act, and proper safeguards were provided
for the landowner's protection. The sanitary commissioner has power
to do no more than to require the abatement of the nuisance com-
plained of; and, it may be, he may prescribe the particular mode
of abating it, if that be the most effectual way of doing it. But
he possesses no absolute power in that regard. Nor does it follow
that he may direct important alterations and permanent improvements
upon the premises, at a large expense to the owner, not demanded by
the actual necessities of the case. There are no words in the charter
to justify the contention that the owner of the premises may be re-
quired, in addition to abating the cause endangering the public health
and safety, to make expensive improvements upon his property to suit
the fancy of the official. His duty was, not to order the construction
!
Ch. 1). EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
29
of an entirely new privy, with all its connections and accessories, but
simply to see to the amendment of the one existing. No attempt was
made on the trial to show that the existing privy could not have been
put in such condition for use as not to be a menace to health. The
fact that a privy may not conform in all its appointments and accesso-
ries to the most approved modes of scientific, sanitary plumbing does
not of itself condemn it as a nuisance.
The charter speaks only of abatement of nuisances, and the ex-
pense authorized relates to the work and labor necessary for the ac-
complishment of the purpose of removing or suppressing them, and
not to the construction of something entirely new in lieu of the thing
whose condition creates the nuisance. The nuisance complained of
was the filthy condition of the privy vaults at the time of the deter-
mination that they were detrimental to health, but the large expense
incurred had no relevancy to the abatement of that nuisance. It was
not an incident to the removal of the cause of the nuisance, but, on the
contrary, was for entirely new and independent work for the altera-
tion and improvement of the plaintiff's premises. For this we find no
authority in the charter.
*
15
15 English Public Health Act, 1875, § 36: "If a house within the district of
a local authority appears to such authority by the report of their surveyor
or inspector of nuisances to be without a sufficient water-closet, earth-closet,
or privy, and an ashpit furnished with proper doors and coverings, the local
authority shall, by written notice, require the owner or occupier of the house,
within a reasonable time therein specified, to provide a sufficient water-closet,
earth-closet, or privy, and an ashpit furnished as aforesaid, or either of them,
as the case may require. If such notice is not complied with, the local au-
thority may, at the expiration of the time specified in the notice, do the work
thereby required to be done, and may recover in a summary manner from the
owner the expenses incurred by them in so doing, or may by order declare
the same to be private improvement expenses."
“I take it to be fully established by the evidence before us that the order
issued by the defendant proceeds upon the footing that there shall be no
privies in their district, that all the privies there shall be turned into water-
closets, and that this resolution has been come to before this order was issued,
and without reference to the present case.
Now, whatever may be
the powers given by this act to the local authorities to order water-closets
to be provided instead of privies in particular cases in which that alteration
may be required,
I think that, whatever may be the powers given,
upon the true construction of the act, and viewing it in the light most favor-
able to these defendants, they were bound to exercise their discretion in each
particular case, and that it was not competent to them to lay down any such
general rule as that upon which the defendants acted, and that in acting
upon that rule they have exceeded the powers given to them by the act, and
that therefore this order was, in that respect, illegal and void, and that the
defendants had not the power to enter upon the premises for the purpose of
giving effect to this part of the order.” Turner, L.J., in Tinkler . Board
of Works for Wandsworth District, 27 Law Journal (N. S.) Chancery, 342
(1857-58). See, also, U. S. Fidelity & Guaranty Co. v. Linehan, 73 N. H. 41,
58 Atl. 956, post, p. 607.
As to the difference between quasi judicial and quasi legislative orders,
especially as regards the construction of statutes giving a right of appeal,
see Nelson v. State Board of Health, 186 Mass. 330, 71 N. E. 693 (1901).
30
(Part 1
ADMINISTRATIVE POWER AND ACTION.
MORFORD et al. v. BOARD OF HEALTH OF ASBURY PARK.
(Supreme Court of New Jersey. 1898. 61 N. J. Law, 386, 39 Atl. 706.)
Certiorari by the State, on the prosecution of Harry W. Morford
and others, against the Board of Health of Asbury Park, to review
an ordinance of defendant. Judgment below set aside.
Argued November term, 1897, before VAN SYCKEL, Dixon, and
COLLINS, JJ.
VAN SYCKEL, J.16 The controversy in this case relates to the validity
of the following ordinance, certified into this court:
"Be it ordained by the board of health of the borough of Asbury
Park.
“Sec. 43. Every stable or building which may be hereafter con-
structed or reconstructed in the borough of Asbury Park, in which any
horse, nule or cow is kept or stabled, shall be so constructed and drain-
ed that no fluids, excrement or refuse liquids shall flow upon or into
the ground. All of the surface of the ground, beneath every stall,
in every such building, and for a distance of at least four feet in the
rear of every sạch stall, shall be covered and protected from pollu-
tion by a water-tight floor, or covering, which shall be constructed
as follows: Where the said water-tight covering rests directly upon
the ground surface, the said covering shall consist of concrete made
with finely broken stone, one part; sharp sand, one part; hydraulic
cement, one part, or coarse gravel, two parts; hydraulic cement,
one part; to be laid at least three inches in thickness. Upon this
concrete foundation a layer at least two inches in thickness of best
asphalt, or a layer at least two inches in thickness of coal-tar concrete,
or a layer at least two inches in thickness of cement concrete made
with sharp sand, one part, best Imperial Portland cement, one part,
shall be laid. When the water-tight covering is not in contact with
the surface of the ground, it shall rest upon joist or floor beams three
inches by ten inches, laid twelve inches from centers, and it shall con-
sist of spruce or yellow pine planking, two inches thick and six
inches wide, with beveled edges, and it shall be closely laid so that the
joints shall be V-shaped, and be open at the top one-quarter of an
inch. Said joints shall be calked with oakum and be made water-
tight. Every such water-tight covering shall be laid upon a grade not
less than one-eighth of an inch to each foot, and shall be so drain-
ed that all fluids which may fall upon it will be conveyed to a street
sewer or otherwise disposed of subject to the terms of a permit from
this board. Portable wooden racks shall be placed upon all sucli
asphalt, coal-tar, concrete or cement concrete floors within said stalls.
Said wooden racks or floor coverings shall be constructed of spruce
strips, two inches in thickness, made in two sections and they shall be
so placed that they may be readily removed for cleaning.
*
*
18 Only a portion of the opinion is printed.
!
Ch. 1)
31
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
1
Any person or persons or corporation who shall offend against any of
the provisions of this section shall forfeit and pay a penalty of one
hundred dollars."
The board of health derives its power from the following legis-
lative acts: By the act of February 22, 1888 (2 Gen. St. p. 1642),
boards of health are given power to adopt ordinances; to compel, pre-
scribe, regulate, and control the plumbing, ventilation, and drainage
of all buildings, public and private, and the connection thereof with
outside sewers, cesspools, or other receptacles, etc.; and to secure the
sanitary condition of all buildings, public and private. Again, by the
act of March 29, 1892 (2 Gen. St. p. 1644), power is given to regulate
the keeping of all kinds of animals, and to regulate and control the
accumulating of offal, and to secure the sanitary condition of all
public buildings, and to protect the public water supply, and to prohibit
and remove any offensive matter or abate any nuisance in any place,
public or private. The act of 1888 also requires plans for the plumbing,
ventilation, and drainage of buildings to be submitted to the board of
health for inspection and approval. While the courts fully recognize
the importance of the powers granted to boards of health, and give
them a liberal construction, such boards will be confined in their in-
terference with the lawful business of any individual to such inter-
ruptions and regulations as may be reasonably necessary to enable
them to abate any nuisance he may create in conducting it. Weil
v. Ricord, 24 N. J. Eq. 169.
The prosecutors insist that the statutes under which boards of health
are constituted do not empower them to prescribe the manner in which
stable floors shall be laid with the strictness and particularity con-
tained in the certified ordinance, and that it is therefore unreasonable
and void. In Gregory v. Mayor, etc., 40 N. Y. 273, the board of
health had power to carry into full execution whatever the health and
safety of the citizens required. The New York court held that, in the
exercise of such authority, the board could not order generally that all
sinks and privies be removed as nuisances, but must find the existence
of the nuisance as a fact, and exercise a specific judgment as to the
necessity for removal. The Massachusetts statute in general terms
authorizes the boards of health to order the owner or occupant of
premises at his own expense to remove a nuisance. In Reservoir Co.
v. Mackenzie, 132 Mass. 71, the supreme court denied the power
of the board to prescribe the exclusive manner in which it should
be removed, namely, by filling with gravel, earth, or some proper
niaterial, to the satisfaction of the board, flat lands which caused the
alleged nuisance. The court declared that the owner had the right to
adopt the alternative of excavating or dredging the flats, or keeping
them covered with water. This ruling was in conformity to the view
which prevailed in Salem v. Railroad Co., 98 Mass. 431, 96 Am. Dec.
650, where the owner was not restricted to the mode prescribed by the
board of health for removing a nuisance. In Health Department v.
32
(Part 1
ADMINISTRATIVE POWER AND ACTION.
Lalor, 38 Hun, 542, the statute provided that the drainage and
plumbing of all buildings should be executed in accordance with plans
previously approved in writing by the board of health, and in conse-
quence of such specific authority the owner of property was prohibited
from departing from the plan so approved.
It is well settled. that, in order to uphold the action of boards ex-
ercising a special statutory jurisdiction, authority for it must be found
in the positive law. In our statutes, before referred to, the power is
given in general terms to the board of health to pass ordinances to reg-
ulate the drainage of stables. There is no language which authorizes
the board to prescribe a mode to which stable owners must rigidly con-
form. On the contrary, the act of 1888 expressly recognizes the right
of the stable owner to submit plans for drainage to the board for ap-,
proval, and this negatives the idea that an ordinance may lawfully be
adopted which will deprive the owner of that privilege. The conclusion
which results from this view of the statute is, not that the ordinance is
void, but that the owner is not restricted to the manner of laying the;
floor which is prescribed by the ordinance. The ordinance stands as
a protection to those who conform to it. If the owner secures the
sanitary condition of his building by adopting some other plan, he is
not amenable to prosecution. In departing from the directions contain-i
ed in the ordinance, he takes the risk of creating a nuisance. If the
plan he resorts to is a failure, he may be held for the penalty, not on,
the ground that he lias not conformed to the plan specifically set
out in the ordinance, but on allegation and proof that his stable is a
nuisance.
Whether, in this case, the complaint is in such form, and the ordi-
nance so framed, that upon proper proof the penalty could lawfully be
imposed upon the owners of the stable, it is not necessary to decide.
The justice before whom the proceedings below were had convicted
the owners of the offense of violating the ordinance, and imposed the
penalty for that alleged offense, and not for maintaining a nuisance.
They may have violated the ordinance without committing the offense
of creating a nuisance. No conviction could lawfully have been had
except for maintaining a nuisance.
The judgment below must, therefore, be set aside.17
17 Compare Durgin v. Minot, 203 Mass. 26, S9 N. E. 144, 24 L. R. A. (N. S.)
241 (1909).
Ch. 1)
33
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
1
SECTION 5.-SAME-CONDITIONS ANNEXED TO GRANT
OF LICENSE
1
REG. v. BOWMAN et al., Justices.
(Iligh Court of Justice, Queen's Bench Division. [1898] 1 Q. B. 663.)
Rules to justices for the borough of South Shields for a certiorari
to bring up an order granting a license to one John Duncan to sell
intoxicating liquors to be quashed, and for a mandamus to hold an
adjournment of the general annual licensing meeting and hear and
determine according to law an application by the said Duncan for a
license.
At the general annual licensing meeting for the borough of South
Shields held on August 25, 1897, John Duncan, who was at that time
the holder of three licenses to sell intoxicating liquors within the bor-
ough, applied for a provisional full license to sell intoxicating liquors
on certain premises then about to be erected. The hearing of the
application was adjourned to September 29, when Henry Yooll and
John George Patton, being inhabitants and ratepayers of the said bor-
ough, attended the licensing sessions and opposed the application. At
a further adjourned session held on November 3 the chairman of
the licensing committee stated that the justices had decided to grant
the license on condition of the three existing licenses being surrendered
and of a sum of £1,000. being paid by Duncan to the justices. The
conditions having been performed, the license was granted, and the
grant was subsequently confirmed. Messrs. Yooll and Patton there-
upon obtained the above-mentioned rules for a certiorari and a man-
damus on the ground that the justices in annexing the said conditions
to the grant of the license were acting illegally and outside their juris-
diction.
It was admitted by them that it was the intention of the justices to
apply the £1,000. so paid by Duncan in reduction of the rates of the
borough, or for some other similar public purpose.
WILLS, J.18 This is a case of considerable importance, but it is
one which presents no difficulty as soon as the facts (which are not
in dispute) are ascertained. It is clear that any member of the public
has a right to be heard in opposition to an application for a license,
and, having such a right, he is entitled to be heard according to legal
principles. If the justices allow themselves to take into consideration
matters which have no bearing upon the merits of the case before them,
and which influence their minds in arriving at their decision, it cannot
18 Parts of the opinions are omitted.
FR.ADM. LAW.-3
34
(Part 1
ADMINISTRATIVE POWER AND ACTION.
be said that the objector has been heard according to law. In the
present case the justices stated that they were prepared to grant the
license upon the terms that the three existing licenses then held by the
applicant should be surrendered, and that he should further pay to them
a sum of £1,000. for some public purpose.
As to whether the justices were entitled to attach the condition of the
surrender of the old licenses I will express no definite opinion, though
as at present advised I incline to the view that they might lawfully
have done so, as the number of the licensed houses which the needs
of the neighborhood demanded was one of the matters which they had
to consider. But the condition of the payment of £1,000. was wholly
unjustifiable. If authority were needed, it is enough to refer to the
case, which was cited, of Rex v. Athay, 2 Burr. 653. The justices
had no more right to require the payment of money for public pur-
poses than to require that it should be paid into their own pockets. If
the attachment of such a condition were allowed to pass without
objection, there would soon grow up a system of putting licenses up
to auction—a system which would be eminently mischievous and
would open the door to the gravest abuses. No doubt the justices
were acting in perfect bona fides and in the interests of the public.
But their conduct was none the less illegal. There has been no real
hearing, and the mandamus must, therefore go.
DARLING, J. I entirely agree. The justices have here done a thing
which in a few years' time they may perhaps be allowed to do.1
have sought to make vendors of intoxicating liquor, and through them
the persons who indulge in it, bear more than their ordinary share of
the public burdens. It has often been suggested that a law to that
effect would be a very proper one to enact. But it is not law yet. If
ever it is made the law it must be by the authority of Parliament, and
when Parliament does so enact it will no doubt take care to specify
the particular public objects to which the money is to be applied. The
justices have here approached the consideration of the case with pre-
conceived theories as to the proper distribution of the unearned in-
crement of value arising from the grant of a license to particular
premises, and have allowed those theories to influence their decision.
Under those circumstances it is enough to refer to Reg. v. Adamson,
1 Q. B. 201, to show that a mandamus must be allowed.
*
*
19 They
*
19 The power was given by Licensing Act 1904, § 4.
Ch. 1
35
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
VAN NORTWICK V. BENNETT.
(Supreme Court of New Jersey, 1898. 62 N. J. Law, 151, 40 Atl. 689.)
On certiorari to review the granting of a license to sell ale, etc., by
the Monmouth pleas.
VAN SYCKEL, J. The defendant, Bennett, applied for a license
to sell ale, strong beer, etc., under the act approved April 4, 1872
(Gen. St. p. 1797, pl. 60).
This application, as recommended by the ten freeholders [as re-
quired by the said act, and in due form], was for a license to sell in
the place occupied by the petitioner, being the northwesterly side of
the building erected on the southeasterly side of Shark river, between
the county bridge and the railroad bridge.
When the application was presented to the Monmouth pleas there
was a remonstrance against granting it. Thereupon the application
was amended by restrictive words, defining the portion of the premises
in which the license was to be used, and the following clause was
inserted in the affidavit thereto: “This application is made with the
express understanding that no open bar is to be maintained, and that
the purpose of this license is to serve guests at table with ineals.”
The affidavit was not again taken after this alteration, nor did the
freeholders who recommended the application sign the recommenda-
tion after the petition was altered.
The court granted a license to Bennett "with the express condition
that no open bar was to be maintained, and that the purpose of the li-
cense was to serve guests at table with meals."
The act of 1872 prescribes the form of the license which the court
may grant, which is "to sell malt liquors in the place which the appli-
cant keeps.” A license so granted authorizes the licensee to keep an
open bar. From the fact that the court annexed to the license granted
a condition that he should not keep an open bar, and should sell only
with meals served, we must infer that in the exercise of its dis-
cretion the court decided that a license such as the statute authorizes
should not be granted. The license granted is not authorized by the
act of 1872, or by any other statute, and was not recommended by ten
freeholders. The common pleas, therefore, had no jurisdiction or
authority to grant such a license. A constituent essential to the juris-
diction of the court was absent, and that makes its action subject to re-
view in this court, under the case of Dufford v. Nolan, 46 N. J. Law, 87.
The suggestion that the restriction imposed will be in the interest
of good order cannot be considered. Licenses can be granted only in
virtue of the statute. The Legislature alone prescribes the conditions
and terms, and the common pleas is without power to depart from
these provisions, and to say that, although the license provided by law
ought not to be granted, it will issue some other license not authorized
36
(Part 1
ADMINISTRATIVE POWER AND ACTION.
by the act. The action of the court has no basis in legislation, and is
therefore invalid.
The license certified is vacated and set aside. 20
SECTION 6.-SAME-LICENSING POWER AND POWER TO
REVOKE LICENSES
CITY OF LOWELL V. ARCHAMBAULT.
(Supreme Judicial Court of Massachusetts, 1905. 189 Mass. 70, 75 N. E. 65.)
Appeal from Superior Court, Middlesex County.
Bill in equity by the City of Lowell against one Archambault. From
a decree for plaintiff, defendant appeals. Reversed.
BRALEY, J. This is a bill in equity, brought under Rev. Laws, c.
102, § 71, to enjoin the defendant from occupying and using a stable,
in violation of the provisions of section 69 of the same chapter. In the
superior court the case was submitted on agreed facts, and after a
decree had been entered in favor of the plaintiff, it comes before us on
the defendant's appeal.
It appears that the defendant, who is engaged in the business of
an undertaker, desiring to erect on his land a stable to be used in
20 Compare Chester v. Wabaslı, etc., Co., 182 Ill. 382, 57 N. E. 524 (1899),
consent with a time limit held valid. As to the validity of consents given
for a consideration, see Maguire v. Smock, 42 Ind. 1, 13 Am. Rep. 353 (1873);
Howard v. First Indep. Church, 18 Md. 451 (1862); Doane v. Chicago City
R. Co., 160 Ill. 22, 45 N. E. 507, 35 L. R. A. 588 (1895); Hamilton Traction
Co. V. Parish, 67 Ohio St. 181, 05 N. E. 1011, 60 L. R. A. 531 (1902).
See Fraucis v. Francis, 203 U. S. 233, 242, 27 Sup. Ct. 129, 132, 51 L. Ed.
165 (1906): "It follows that the words in the patent of 1827, 'but never to be
conveyed by them or their heirs, without the consent and permission of the
President of the United States,' were ineffectual as a restriction upon the
power of alienation. The President had no authority, in virtue of his office,
to impose any such restriction; certainly not without the authority of an
act of Congress, and no such act was ever passed."
See Sidney and Beatrice Webb, English Local Government, I, “The Parish
and the County," p. 541: “The whole sphere of licensing afforded a wide
opportunity for virtual legislation. We have sufficiently described elsewhere
the extent to which the justices, at first in pairs and afterward in Brewster
sessions, exercised their plain legal right to impose conditions on alehouse
keepers seeking licenses, and to bind them over, by 'articles attached to the
statutory recognizances, to close at certain hours or on certain days, to follow
this or that line of conduct, and to abstain from particular lawful acts of
which these particular justices chose to disapprove.'
As to the power of municipal corporations to annex conditions to their con-
sent to the laying of railroad tracks or to the placing of other public utility
appurtenances in the public streets, see Byrne v. Chicago General R. Co., 169
Ill. 75, 83-87, 48 N. E. 703 (1897); Allegheny City v. Millville, etc., Ry. Co.,
159 Pa. 411, 28 Atl. 202 (1893), in favor of the power; Matter of King County
Elevated R. Co., 105 N. Y. 97, 114, 13 N. E. 18 (1887) quære; State ex rel.
v. City of Sheboygan, 111 Wis. 23, 36 N. W. 657 (1901), and Wisconsin Tele-
phone Co. V. Milwaukee, 126 Wis. 1, 104 N. W. 1009, 1 L. R. A. (N. S.) 581,
110 Am. St. Rep. 886 (1905), against the power.
Ch. 1)
37
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
connection therewith, applied to the board of health for a license to
permit him to occupy and use the building when completed for the
stabling of eight horses. This petition was granted, and a license
duly issued to him, permitting the exercise of this privilege. Upon re-
ceiving it, he at once had plans prepared, and began the erection of a
stable on a site from which he had at a pecuniary loss removed another
building. After the work had been begun, but before its completion,
the board of health, acting on the petition of residents in the immedi-
ate vicinity, rescinded their former vote and canceled the license. Since
the completion of the building the defendant has used it for the keep-
ing of two horses, claiming this right under the license, which he
contends never has been legally annulled. If the revocation was in-
valid, such use was not in violation of the statutory provision on
which the plaintiff relies, and the bill cannot be maintained. The li-
cense granted under the police power of the commonwealth, as ad-
ministered through the agency of the board of health, did not con-
stitute a contract between him and the city, or confer upon him any
vested right of property. Neither did its abrogation, if lawful, de-
prive him of any immunity or privilege conferred upon him by our
Constitution. Calder v. Kurby, 5 Gray, 597; Newton v. Joyce, 166
Mass. 83, 44 N. E. 116, 55 Am. St. Rep. 385; Young v. Blaisdell, 138
Mass. 344.
The Statutes of 1895 (page 219, c. 213), now Rev. Laws, c. 102,
$$ 69, 71, under the authority of which the board acted and the li-
cense was issued, contained no provisions for its recall when once
granted. It evidently was the purpose of section 1 of the original act
that the license itself should specify the extent of the right conferred,
by setting out the conditions under which the building could be built
and used; for by section 2 the board may make regulations respect-
ing the occupation and use of stables in existence at the date of its
passage, while the last section provided a penalty for the violation
of the act itself, or of any order or regulation made pursuant to its
requirements. Whether a stable was in existence and its use was to
be continued, or permission was to be given to erect a stable and then
use it, the right in each instance was subject to such reasonable regu-
lations as might be made by the board of health. It undoubtedly
was presumed that the board would make proper inquiries before
judicially determining whether a license should or should not be re-
fused, and, if granted, to prescribe by its terms how far the privilege
might be exercised. In any instance, if the granting of a license
would be detrimental to the public health, or contrary to regulations
already established, then it would not be issued.
If the statute had given to the boards of health of cities a general
authority similar to that conferred by Pub. St. 1882, c. 80, § 10,2
21 This section provides that boards of health may exercise all the powers
vested in, and shall perform all the duties prescribed to, city councils or
mayors and aldermen as boards of health under the statutes and ordinances
in force in their respective cities on May 17, 1877.
21
38
(Part 1
ADMINISTRATIVE POWER AND ACTION.
it might be that they lawfully could make the violation of their regu-
lations a sufficient ground for revoking the privilege, and could issue
it upon such a condition. Young v. Blaisdell, ubi supra; Grand Rap-
ids v. Braudy, 105 Mich. 670, 677, 678, 64 N. W. 29, 32 L. R. A.
116, 55 Am. St. Rep. 472.22 At least it could be said that the licensee
then would take it subject to this reservation, and, having agreed to
its terms, no injustice would be done by a subsequent cancellation.
Generally, under statutes regulating the conduct of certain kinds of
employment or of business which require the protection of a license
before they can be lawfully prosecuted, the penalty of forfeiture is
dealt with either by conferring express authority to revoke for viola-
tions upon the licensing board or some other tribunal, or else a general
power is delegated, under which such a clause may be inserted in the
license itself. Rev. Laws, c. 100, $815, 47, 89; chapter 102, 889,
28, 29, 33, 58, 72; Grand Rapids v. Braudy, ubi supra.
Upon application for permission to erect a stable, which, in the
absence of a restricting statute, would be a legitimate improvement in
the enjoyment of his property, the applicant is entitled to know the
full measure of immunity that can be granted to him before making
the expenditure of money required to carry out his purpose. A resort
to the general laws relating to the subject, or to ordinances or regu-
lations made pursuant to them, should furnish him with the required
information. When this has been obtained, he has a right to infer
that he can safely act, with the assurance that, so long as he complies
with the requirements under which it is proposed to grant the priv-
ilege, he has a constitutional claim to protection, until the Legislature
further restricts or entirely abolishes the right bestowed. Common-
wealth v. Brennan, 103 Mass. 70; Commonwealth v. Kinsley, 133
Mass. 578, 579; Hirn v. State, 1 Ohio St. 20, 21; Schwuchow v.
Chicago, 68 Ill. 444; Lantz v. Hightstown, 46 N. J. Law, 102, 107;
Grand Rapids v. Braudy, ubi supra.
Independently of this statute, while the board of health, under Pub.
St. 1882, c. 80, 88 8, 12, after a hearing and on proper evidence, might
have adjudged the defendant's building, when erected and occupied
as a stable, detrimental to the public health, and therefore a nuisance,
it had no jurisdiction to issue a license to him permitting and regu-
22 Schwuchow v. City of Chicago, 68 Ill. 444, 419 (1873): “When the Leg-
islature granted power to suppress groceries, they conferred power on the
city which they might exercise even to that extent. The Legislature, then,
having conferred such power, it was for the common council to determine
whether they would wholly suppress the sale of intoxicating liquors, or grant
the privilege on such terms and conditions as they might choose. And the
power was ample, under this grant, to impose as a condition that, when a
license is granted, it should be liable to revocation on the violation of the
ordinances regulating the traffic, or, having absolute control over the whole
subject of granting licenses, they may impose any other condition calculated
to protect the community, preserve order, and to suppress vice.” See Grand
Rapids v. Braudy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep.
472 (1895).
See, also, Inhabitants of Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860,
(1890).
Ch. 1)
39
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
lating such use except as authorized. Commonwealth v. Stodder, 2
Cush. 562, 48 Am. Dec. 679; Cambridge v. Munroe, 126 Mass. 496,
502; Commonwealth v. Plaisted, 148 Mass. 375, 383, 19 N. E. 224,
2 L. R. A. 142, 12 Am. St. Rep. 566. It is the Legislature alone that
primarily can impose, or give authority to impose, conditions and
exact forfeitures (Lantz v. Hightstown, ubi. supra; Dillon, Mun.
Corp. [3d Ed.] § 345, note 4, and cases cited); and the authority
of the board as a governmental agent is commensurate with the pro-
visions of the statute clothing it with this power (Abbott v. Frost, 185
Mass. 398, 400, 70 N. E. 478).
A licensee should not be subjected to the uncertainties that con-
stantly would arise if unauthorized limitations, of which he can have
no knowledge, are subsequently and without notice to be read into
his license at the pleasure of the licensing board. Besides, all rea-
sonable police regulations, enacted for the preservation of the pub-
lic health or morality, where a penalty is provided for their viola-
tion, while they may limit or prevent the use or enjoyment of prop-
erty except under certain restrictions, and are constitutional, create
statutory misdemeanors, which are not to be extended by implica-
tion. Commonwealth v. Beck, 187 Mass. 15, 72 N. E. 357.
The license issued to the defendant contained no limit of time for
its exercise, nor was it made subject to an existing regulation which
so provided. It stated that permission was given to keep eight
horses, and purported to and did set out in full the statute under
which it was granted, but contained no further recitals. Thus neither
by its terms nor by the statute itself was it made revocable, nor does
it appear that any regulations had been adopted or promulgated the
violation of which would cause a forfeiture. Originally it may have
been improvidently issued, but upon being informed that citizens in
the vicinity of the defendant's premises objected to the erection of
the building for its proposed use, it was not within the power of the
board of health, even after a hearing, in the abfence of authority
conferred upon then by legislative sanction, to deprive him of the
privilege they had unreservedly granted. Commonwealth v. Moylan,
119 Mass. 109, 111; Commonwealth v. Kinsley, ubi supra; Mayor v.
Third Avenue Railroad, 33 N. Y. 42; Shuman v. Fort Wayne, 127
Ind. 109, 26 N. E. 560, 11 L. R. A. 378; Hirn v. State, ubi supra;
Grand Rapids v. Braudy, ubi supra; Lantz v. Hightstown, ubi supra.
In the opinion of a majority of the court, the decree must be re-
versed, and a decree entered dismissing the bill, with costs. So
ordered.
23
23 See Lantz v. Hightstown, 46 N. J. Law, 102, 108 (1884): "I can find no
instance in the practice of boards of excise or other licensing bodies in
which the power of revocation has been exerted except under the provisions
of a statute." See, as to cancellation of license illegally obtained, State èx
rel. Schaefer v. Schroff, 123 Wis. 98, 100 N. W. 1030, post, p. 490 (1904).
See, also, Thompson v. Gibbs, 97 Tenn. 489, 37 S. W. 277, 34 L. R. A. 548
(1896).
40
(Part 1
ADMINISTRATIVE POWER AND ACTION.
METROPOLITAN MILK & CREAM CO. y. CITY OF NEW
YORK et al.
(Supreme Court of New York, Appellate Division, First Department, 1906.
113 App. Div. 377, 98 N. Y. Supp. 894.)
Appeal from Special Term, New York County.
Action by the Metropolitan Milk & Cream Company against the
City of New York and another. From an interlocutory judgment over-
ruling a demurrer to a separate defense in the answer, plaintiff ap-
peals. Affirmed.
Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGH-
LIN, and CLARKE, JJ.
INGRAHAM, J. The action was brought to recover $30,000 damages
sustained by the plaintiff by the revocation by the board of health of
the city of New York of certain permits issued by the said board un-
der which the plaintiff was authorized to sell fresh and condensed
milk in the city of New York. The plaintiff was a domestic corpora-
tion and engaged in selling milk and cream in the city of New York.
The complaint alleges: That the department of health is a depart-
ment of the city of New York, organized under the charter of the city
of New York (chapter 466, p. 1, of the Laws of 1901). That prior
to January 1, 1897, the board of health of the former city of New
York issued to the plaintiff seven permits or licenses to sell milk in
the city of New York, dated May 10, 1896. That thereafter the pres-
ent board of health organized under the charter of 1901 issued to the
plaintiff three additional permits to sell milk in the city of New York,
dated May 7, 1902, and June 10, 1903. That the sale of milk by the
plaintiff in the city of New York without a permit from the board of
health was after the 14th of December, 1904, a misdemeanor. That
on the 14th day of December, 1904, the board of health adopted a
resolution wherein and whereby they directed all said 10 permits or
licenses to sell milk theretofore issued to the plaintiff and under which
the plaintiff was carrying on its said business to be forthwith an-
nulled and revoked. That the action of the board was unjust, arbi-
trary, unlawful, and illegal, and without just cause, and that the said
board was without any power, authority, or warrant in law to revoke
said licenses. The form of the permits was set forth in the com-
plaint as follows: "Metropolitan Milk & Cream Company is hereby
authorized to sell inilk, fresh and condensed, at borough of Manhat-
tan, under the laws, rules, and regulations of the board of health, of
the department of health of the city of New York. This permit is
not transferable to any person or location other than above, and must
be kept posted at all times in a conspicuous place in the store, and is
revocable at the pleasure of the board." That the plaintiff's good will,
trade, and business were at the time of said revocation of the value
of $30,000. That in consequence of said revocation of the said licenses
!
Ch. 1)
41
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
or permits the plaintiff was prevented from continuing or carrying on
its said business, and said business thereby and thereupon was forth-
with wholly and instantly terminated and entirely destroyed, all to the
plaintiff's damage in the sum of $30,000.
The defendants served separate answers, which set up as a sep-
arate defense that by virtue of the laws of the state of New York
and the Sanitary Code of the city of New York the defendant, the
department of health of the city of New York, had authority and
power to prevent the plaintiff from bringing into the city of New
York, or keeping or selling therein, unwholesome or adulterated milk,
or milk which had been watered, or milk which had been in any re-
spect adulterated, reduced, or changed by the addition of water or
any other substance; that prior to the 14th day of December, 1904,
the department of health of the city of New York, upon investigation
and inquiry, discovered that the plaintiff was operating a creamery
in the county of Orange, in the state of New York, which creamery
and appurtenances were kept and maintained by the plaintiff in a filthy,
unwholesome, and unsanitary condition, and from the said creamery
the plaintiff was shipping and sending to the city of New York, to be
sold to its citizens, milk which had been watered, and which had been
adulterated and changed by different substances; and that the plain-
tiff had been using in such milk preservatives, so called, and coloring
matter, and was also shipping and sending to New York, to be used
by its citizens skim milk mixed with water, labelled "Butter Milk";
whereupon the department of health of the city of New York, after
notice to the plaintiff and after a hearing upon all the facts, revoked
the license or licenses of the plaintiff to sell milk in the city of New
York, as it had a right to do, and as it was its duty to do, and not
otherwise. To these separate defenses demurrers were interposed by
the plaintiff, which were overruled.
The learned counsel for the defendants do not attack the sufficiency
of the complaint, although it is somewhat difficult to see how any act
of the board of health, acting under an authority conferred by the
state to regulate the sale of impure and unwholesome milk in the city
of New York, can impose an obligation upon the municipality. As
this point, however, is not taken by the defendant, it will not be con-
sidered.
The first seven permits were issued on March 10, 1896, under the
consolidation act (chapter 410, p. 1, Laws 1882, as amended). By sec-
tion 34 (page 8) of that act the board of health was created a de-
partment of the said city. Section 575 (page 158) provides that the
Sanitary Code "adopted and declared as such at a meeting of the board
of health of the health department of the city of New York, held in
the city, on the second day of June, 1873, as amended in accordance
with law, is hereby declared to be binding and in force in said city."
Section 576 (page 159) provides that the board of health “shall cause
to be enforced the provisions of its Sanitary Code." In People ex rel.
42
(Part 1
ADMINISTRATIVE POWER AND ACTION.
Lieberman v. Vandecarr, 175 N. Y. 440, 67 N. E. 913, 108 Am. St.
Rep. 1781, it was held that. section 66 of the Sanitary Code which
reads, “No milk shall be received, held, kept, offered for sale or deliv-
ered in the city of New York without a permit in writing from the
board of health and subject to the conditions thereof” was valid; that
it was lawful for the health authorities in the city of New York to
require the relator to obtain a permit under section 66 of the Sani-
tary Code in order to receive, hold, offer for sale and deliver milk, and
failing so to do to arrest and punish him; that the vesting of powers
more or less arbitrary in various officials and boards is necessary if
the work of prevention and regulation is to ward off fevers, pestilence,
and the many other ills that constantly menace great centres of pop-
ulation. The board of health thus having power to issue permits au-
thorizing a person to carry on the business of dealing in milk in the
city of New York, this power was continued by the subsequent charters
of the city of New York.
By the present charter (chapter 466, p. 499, of the laws of 1901)
the board of health is constituted. Section 1172 of the charter, as
amended by chapter 628, p. 1491, $ 3, of the Laws of 1904, provides
that: "The Sanitary Code which shall be in force in the city of New
York on the first day of January, nineteen hundred and two, and
all existing provisions of law fixing penalties for violations of said
Code are hereby declared to be binding and in force in the city of
New York, and shall continue to be so binding and in force, except as
the same may, from time to time, be revised, altered, amended or an-
nulled, as herein provided.” By section 1169 it was made the duty of
the board to “enforce all laws of this state applicable in said district,
to the preservation of human life, or to the care, promotion or pro-
tection of health; and said board may exercise the authority given
by said laws to enable it to discharge the duty hereby imposed; and
this section is intended to include all laws relative to cleanliness, and
to use or sale of poisonous, unwholesome, deleterious, or adulterated
drugs, medicine or food.
The board of health shall use all
reasonable means for ascertaining the existence and cause of disease
or peril to life or health, and for averting the same, throughout the
city.” The board, being charged with the duty of protecting the
health of the inhabitants and preventing the sale of impure or adul-
terated food, ascertained that the plaintiff, acting under the permits
which it had issued, was engaged in selling impure and adulterated
milk. The board gave to the plaintiff notice of these charges, and
after a hearing it revoked the permits; and to sustain the contention
of the plaintiff we must hold that such permit thereby becomes ir-
revocable and authorizes the person to whom it was granted to con-
tinue forever to sell milk, although the conditions under which the
permit was issued were continually violated, the provisions of the San-
itary Code in relation to milk sold disregarded, and that a person act-
ing under a permit from the board of health is selling to the inhat
*
Ch. 1)
43
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
itants of the city of New York poisonous and impure articles for food,
endangering the public health,
The sole authority that the health board would have, if this con-
tention was correct, would be to prosecute the person selling the poison-
ous article in the shape of milk, fine him, and in the meantime such
person could go on poisoning the people under a permit or license from
the health authorities, a proposition which is so unreasonable that a
mere statement is sufficient to refute it. There is nothing in either
the Penal Code or the charter that makes such a permit irrevocable.
The permit itself provides that it is revocable at the pleasure of the
board, and the plaintiff accepted it with that condition. There is noth-
ing unreasonable in this condition; and, irrespective of the general
power of the board of health to revoke a permit which is being abused
and under which the person accepting it and using it is persistently
violating the law, it is certainly not an unreasonable condition to in-
sert into such a permit a provision that it is revocable by the board
that issues it. To hold that a permit once granted is irrevocable would
be to totally defeat the object of the statute in requiring such a permit
before a person should engage in the business of supplying to the in-
habitants of a city food. *
* 24
SECTION 1.-ADMINISTRATIVE POWERS OF REGULA-
TION-SCOPE AND VALIDITY
POTTS et al., School Directors, v. BREEN et al.
(Supreme Court of Illinois, 1897. 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152,
59 Am. St. Rep. 262.)
Suits by Jennie Breen and another, by Michael Breen, their father
and next friend, against Lawrence W. Potts and others, School Di-
rectors of District No. 5, Township 2 N., Range 12 W., in Lawrence
County, Ill. From a judgment of the Appellate Court (60 Ill. App.
201) affirming a judgment for plaintiffs, defendants appeal. Affirmed.
CARTER, J. These are two suits between the same parties, one a
petition for a writ of mandamus to compel appellants to admit appel-
lees to the public school of their district, and the other an action of
trespass to recover damages for the exclusion of appellees from such
24 A portion of the opinion is omitted.
This decision was referred to with approval in People er rel. Lodes v. De-
partment of Health, 189 N. Y. 187, S2 N. E. 187, 13 L. R. A. (N. S.) 894
(1907). It was affirined by the Court of Appeals, without opinion, 186 N. Y.
533, 78 N. E. 1107.
44
(Part 1
ADMINISTRATIVE POWER AND ACTION.
school. The cases were tried together upon the following facts agreed
upon, viz.:
Jennie Breen and Jim Breen, appellees, were the children of Michael
Breen, a resident and taxpayer of district No. 5, township 2, range
12, Lawrence county, Ill., of which district the appellants were di-
rectors. These directors, acting under a certain rule and order of
the state board of health, made a general order, applicable to all schools
in their district, requiring that all pupils should be vaccinated before
being admitted to such schools. They also employed a physician .to
vaccinate the pupils, and instructed and ordered the teacher of the
school in question to impart no instruction to appellees until they
should comply with said order; and appellees were refused admission
to the school on the sole ground that they had failed and refused to
comply with such order, the father of appellees absolutely refusing to
perinit his children to be vaccinated. The directors acted in good
faith, under the belief that they were performing a duty imposed upon
them by law, and used no direct force upon appellees, but simply de-
nied them admission to the school, after repeated refusals to obey
the orders relating to vaccination.
In their answer to the petition, the directors alleged that the state
board of health made and promulgated the following order: “Re-
solved, that, by the authority vested in this board, it is hereby ordered
that on and after January 1, 1882, no pupil shall be admitted to any
public school in the state without presenting satisfactory evidence of
proper and successful vaccination;" and that at the Janitary meeting,
1894, the said state board of health passed the following resolution :
"Resolved, that the power of the state board of health, under the law
creating said board of health, to order the vaccination of all school
children, is clear and unquestionable. The consequent duty of the
board of school directors to see that such order is strictly enforced in
their respective districts is equally clear, and the said order of the
board of health is their sufficient authority for so doing.” These or-
ders of the state board of health were sent to the superintendent of
schools of said Lawrence county, and were by him transmitted to the
appellants, with written directions of the state board of health to en-
force the same; and appellants made an order that all children at-
tending the said school in their district should be vaccinated, or should
show a physician's certificate of previous vaccination, as a condition
of attendance upon the said school.
The trial court rendered judgment against appellants, granting the
peremptory writ of mandamus as prayed, and assessed appellees' dam-
ages in the trespass case at one cent. These judgments have been af-
firmed, on appeal, by the Appellate Court, and appellants have prose-
cuted this appeal to this court. So far as the record discloses, ap-
pellees had not been exposed to infection by smallpox, but were in
perfect health, and there was no reason for their exclusion except that
t
Ch. 1)
45
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
they had not been vaccinated. There was no epidemic of smallpox
prevailing or apprehended in the vicinity of the school.
The record presents the question whether or not the state board of
health, or the appellants, as such school directors, acting under its or-
ders or otherwise, had any power to impose, as a condition of the ad-
mission of appellees to the public schools, the requirement of vac-
cination; and, further, if such power existed, and could be enforced
as a police regulation, for the preservation of the public health, and
to prevent the spread of contagious and infectious diseases, was the
regulation and its enforcement, under the facts appearing in the record,
a reasonable one?
Section 2 of the act creating the board of health (Laws 1877, p.
208) is as follows: "The state board of health shall have the general
supervision of the interests of the health and life of the citizens of
the state. They shall have charge of all matters pertaining to quar-
antine, and shall have authority to make such rules and regulations,
and such sanitary investigations, as they may from time to time deem
necessary for the preservation or improvement of public health; and
it shall be the duty of all police officers, sheriffs, constables, and all
other officers and employees of the state to enforce such rules and
regulations, so far as the efficiency and success of the board may de-
pend upon their official co-operation.” Section 3 provides that the
board of health shall have supervision over the state system of regis-
tration of births and deaths, as hereinafter provided: “They shall
make up such forms and recommend such legislation as shall be deemed
necessary for the thorough registration of vital and mortuary statistics
throughout the state. The secretary of the board shall be superintend-
ent of such registration." Section 4 makes it the duty of all physicians
and accouchers to report to the county clerk "all births and deaths
which may come under their supervision, with a certificate of the
cause of death, and such correlative facts as the board may require
in the blank forms furnished as hereinafter provided." Section 8 re-
quires county clerks to render complete reports of all births, marriages,
and deaths to the state board of health; and section 9 requires the
board of health to prepare the necessary forms. Section 12 provides
for an annual report by the board to the Governor, “and such report
shall include so much of the proceedings of the board, and such in-
formation concerning vital statistics, and knowledge respecting dis-
eases, and such instruction on the subject of hygiene, as may be thought
useful by the board for dissemination among the people, with such
suggestions as to legislative action as they may deem necessary."
By reference also to the act of the General Assembly to regulate the
practice of medicine in this state, which was passed at the same session
of the Legislature, and which makes reference to the state board of
health, and provides for the examination and licensing by said board
of persons desiring to practice medicine, it clearly appears that one
of the most important duties of the board was to ascertain and certify
46
(Part 1
ADMINISTRATIVE POWER AND ACTION.
to the qualifications of practicing physicians and surgeons, and to
detect quacks, and to prevent them and all ignorant pretenders from
imposing upon the sick and helpless.
It is clear that no such power as claimed by the state board of health
has been conferred upon it, unless by the broad and general language
of the first section of the act creating it. But the general terms there
employed must be construed in relation to the more specific duties im-
posed and powers conferred by the act taken as a whole, and, when
thus construed, these general terms are restricted so as to express the
true intent and meaning of the Legislature. Take, for example, the
first sentence, viz.; "The state board of health shall have the gen-
eral supervision of the interests of the health and life of the citizens
of the state.” The scope of the language there employed is prac-
tically unlimited, and were it not held to be restricted by well-known
legal principles, applicable in the interpretation and construction of
statutes, it would appear to confer more power on this board than the
Legislature itself possessed. Plainly, it was not intended that any
general supervisory power over the health and lives of citizens of
the state should be exercised by the board otherwise than in conformity
to law, and such as should be necessary, within reasonable limitations,
in the performance of the administrative duties which were or should
be imposed upon the board by statute. It had and could have no legis-
lative power. Its duties were purely ministerial, and the provision of
the statute authorizing the board to make such rules and regulations
:s it should from time to time deem necessary for the preservation or
improvement of the public health cannot be held to confer that broad
discretionary power contended for, to prescribe conditions upon which
the citizen of the state may exercise rights and privileges guaranteed
to him by public law.
In Huesing v. City of Rock Island, 128 I11. 465, 21 N. E. 558, 15
Am. St. Rep. 129, it was contended that the city had the power, under
clause 18, § 1, art. 5, of the city incorporation act, to construct and
inaintain a city abattoir, as a sanitary measure. This clause is as fol-
lows: "To do all acts, make all regulations, which may be necessary
or expedient for the promotion of health or the suppression of disease.”
This court, however, held that, in view of the fact that the same sec-
tion contained other provisions authorizing the city council to do cer-
tain specified acts for the preservation of the health of the city and
the suppression of disease, the general provision did not enlarge the
powers conferred by the special provisions.
As recently held by the Supreme Court of Wisconsin in a similar
case, we are of the opinion that the powers of the board are limited
to the proper enforcment of statutes, or provisions thereof, having
reference to emergencies requiring action on the part of the agencies
of government to preserve the public health, and to prevent the spread
of contagious or infectious diseases. It will be observed that after the
first section the powers and duties of the board with reference to dif-
5
Ch. 1)
47
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
*
ferent subjects are minutely specified, and it is required to make
reports to the Governor, and to include therein such information con-
cerning vital statistics, and such knowledge respecting diseases, and
such instruction on the subject of hygiene as may be thought useful
by the board for dissemination among the people with such suggestions
as to legislative action as they may deem necessary.” Its duty to
recommend legislation is repeated more than once in the act, in con-
nection with specifications of the powers and duties of the board;
and from no point of view can we regard it as having been within the
legislative intent to confer, by the first section, plenary powers upon
the board in all matters pertaining to the public health, without regard
to other provisions of the statute, or further action by the Legislature.
Section 1 of article 8 of the Constitution provides that "the General
Assembly shall provide a thorough and efficient system of free schools,
whereby all children of this state may receive a good common school
education.” And the statute provides that the directors “shall estab-
lish and keep in operation for at least one hundred and ten days of
actual teaching in each year
a sufficient number of free
schools for the accommodation of all children in the district over the
age of six and under twenty-one years, and shall secure to all such
children the right and opportunity to an equal education in such
schools." And the statute further provides that they shall adopt and
enforce all rules and regulations for the management and government
of the schools, and may suspend or expel pupils who may be guilty of
gross disobedience or misconduct. The statute also contains provi-
sions of similar import relating to schools in more populous districts
and cities. It is therefore seen that the right or privilege of attend-
ing the public schools is given by law to every child of proper age in
the state, and there is nowhere to be found any provision of law pre-
scribing vaccination as a condition precedent to the exercise of this
right.
Whether the Legislature has the power to make such a requirement
or not, it is not necessary here to consider; it is sufficient that it has
not done so, and it cannot be supposed that the Legislature has under-
taken, and not expressly, but by mere implication from the general
language used in creating the state board, to confer upon that mere
administrative body such vast power over the rights and liberties of
the individual citizen as to deprive him of his constitutional and stat-
utory rights, unless he shall submit his body to be inoculated with
vaccine virus, as a mere precaution against some possible future con-
tagion of smallpox. It is doubtless true that in a large number of
school districts in interior parts of the state no case of smallpox has
ever existed in the history of the state, and yet, by this order of the
board, no citizen who has children to educate, although compelled by
law to pay taxes to support the public schools, can send his children
to such schools without first having such child vaccinated, as a precau-
48
(Part 1
ADMINISTRATIVE POWER AND ACTION.
tion against a disease which had never appeared, and where there
was no apparent danger that it would ever appear in the vicinity.
The power to compel vaccination, or to require it as a condition
precedent to the exercise of some right or privilege guaranteed to the
citizen by public law, can be derived from no other source than the
general police power of the state, and can be justified upon no other
ground than as a necessary means of preserving the public health.
Without the necessity, or reasonable grounds upon which to conclude
that such necessity exists, the power does not exist. As such the board
of health has no more power over the public schools than over private
schools or other public assemblages, and its order applying to public
schools only, requiring vaccination as a prerequisite to the exercise
of the right to attend a public school could be justified only upon rea-
sonable grounds appearing that the contagion of smallpox would more
likely originate in or be disseininated from the public schools than
from other assemblages. Whether it might be invested with power in
this respect is a question not involved here, and not necessary to con-
sider.
While school directors and boards of education are invested with
power to establish, provide for, govern, and regulate public schools,
they are in these respects nowise subject to the direction or control
of the state board of health, and, as before pointed out, they have no
authority to exclude children from the public schools on the ground
that they refuse to be vaccinated, unless, indeed, in cases of emer-
gency, in the exercise of the police power, it is necessary, or reasonably
appears to be necessary, to prevent the contagion of smallpox. . Un-
doubtedly, also children infected or exposed to smallpox may be tem-
porarily excluded, or the school may be temporarily suspended; but,
like the exercise of similar power in other cases, it is justified by the
emergency, and, like the necessity which gives rise to it, ceases when
the necessity ceases.
No one would contend that a child could be permanently excluded
from a public school because it had been exposed to smallpox, or that
the school could be permanently closed, because of the remote fear
that the disease of smallpox might appear in the neighborhood, and
that, if the school should then be open and children in attendance
upon it, the public would be exposed to the contagion. And, upon
the same line of reasoning, without a law making vaccination compul-
sory, or prescribing it, upon grounds deemed sufficient by the Legis-
lature as necessary to the public health, as a condition of admission to
or attendance upon the public schools, neither the state board nor any
. local board has any power to make or enforce a rule or order having
the force of a general law in the respects mentioned.
We are not called upon to consider wliether or not vaccination is a
preventative, or the best known preventative, of smallpox. That it
is so seems to be the consensus of opinion of a learned and honorable
profession, borne out by the history of its use for a century, and we
Ch. 1)
49
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
can only so regard it; but, when compulsorily applied, it must, like all
other civil regulations, be applied in conformity to law. However
fully satisfied, by learning and experience, a board might be that anti-
toxine would prevent the spread of diphtheria, no one would contend
that a rule enforcing its use as a condition precedent to the admis-
sion of a child to the public schools would, as the law now is, be valid.
It is a matter of common knowledge that the number of those who
seriously object to vaccination is by no means small, and they can-
not, except when necessary for the public health and in conformity
to law, be deprived of their right to protect themselves and those
under their control from an invasion of their liberties by a practically
compulsory inoculation of their bodies with a virus of any description,
however meritorious it might be.
The same conclusion was reached by the Supreme Court of Wis-
consin in State v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A.
157, 60 Am. St. Rep. 123, in a case similar in all respects to this. In
that case the court also, upon the question of the power of the Leg-
islature to delegate to such board the power to make a rule having
the force of a general law, cited Dowling v. Insurance Co., 92 Wis.
63, 65 N. W. 738, 31 L. R. A. 112, which held that the Legislature
could not delegate the insurance commissioner the power, essentially
legislative, to prepare, approve, and adopt a form of "a standing fire
insurance policy” for use in that state, and which use was to be en-
forced by penal sanction of the act. See, also, on this subject, O'Neil
v. Insurance Co., 166 Pa. 72, 30 Atl. 945, and Anderson v. Assurance
Co., 59 Minn. 182, 63 N. W. 241, 28 L. R. A. 609, 50 Am. St. Rep.
400. See, also, Tugman v. City of Chicago, 178 Ill. 405.
As said in State v. Young, 29 Minn. 474, 9 N. W. 137: "It is a
principle not questioned that, except where authorized by the Consti-
tution, as in respect to municipalities, the Legislature cannot delegate
legislative power—cannot confer on any body or person the power to
determine what shall be law. The Legislature only must determine
this."
Hurst v. Warner, 102 Mich. 238, 60 N. W. 440, 26 L. R. A. 484,
47 Am. St. Rep. 525, construed an act of the Michigan Legislature
which provided that, in certain contingencies specified in the act, the
state board of health should be authorized to establish a quarantine,
and to make rules for the disinfection of baggage belonging to persons
coming from a country where contagious disease exists, and, through
an inspector acting thereunder, to detain for disinfection baggage of
passengers, passing through the state, and coming from localities where
a dangerous, communicable disease exists. It was held by the court
that the act did not authorize a rule subjecting the baggage of all im-
migrants to disinfection, whether such immigrant came from a part
or locality where any dangerous, communicable disease existed or not.
The case of Abeel v. Clark, 84 Cal. 226, 24 Pac. 383, was a manda-
FR.ADM.LAW.-4
50
(Part 1
ADMINISTRATIVE POWER AND ACTION.
mus proceeding to compel the principal of a public school to admit
Abeel as a scholar, who had been refused admission because he had not
complied with the vaccination act. This act provided that the school
trustees and board shall "exclude from the benefits of the common
schools any child or any person who has not been vaccinated." The act
was held constitutional. The court says: “Vaccination, then, being the
most effective method known of preventing the spread of the disease
referred to (smallpox), it was for the Legislature to determine whether
the scholars of the public schools should be subjected to it.”
The case of Duffield v. School Dist., 162 Pa. 476, 29 Atl. 742, 25
L. R. A. 152, was a mandamus proceeding to compel the admission of
the plaintiff's minor child into the common schools of Williamsport.
The facts in this case were that there was an ordinance of the city
of Williamsport in force providing that no pupil "shall be permitted
to attend any public or private school in said city without a certificate
of a practicing physician that such pupil has been subjected to the pro-
cess of vaccination"; that smallpox was then existing in Williamsport,
and had been epidemic in many near-by cities and towns; that the
board of health and the school board, in view of the general alarm
prevailing in the city over the report that a case of smallpox was in
the city, had adopted a resolution in conformity with said city ordi-
nance. The questions raised related to the power of the school board
to adopt reasonable health regulations, and to the reasonableness of
the particular regulation complained of, and the action of the board
was sustained. But the case was unlike the one at bar in the fact that
smallpox was then in the city, and was prevalent in adjoining com-
munities. A similar conclusion was reached in Bissell y. Davison, 65
Conn. 183, 32 Atl. 348, 29 L. R. A. 251, but the general statute of
Connecticut had expressly conferred upon the school committee the
power exercised by it.
The cases of In re Walters, 84 Hun, 457, 32 N. Y. Supp. 322, and
Abeel v. Clark, 84 Cal. 226, 24 Pac. 383, involved the constitutionality
of statutes requiring all children to be vaccinated before being admitted
to the public schools, and such statutes were held to be constitutional.
That question is not involved here, and the reasoning employed in
those cases does not apply where this legislative power is exercised by
an administrative board, and not by the Legislature itself. Nor can the
rule in question be regarded as a reasonable one where, as in this
case, smallpox did not exist in the community, and where there was
no cause to apprehend that it was approaching the vicinity of the
school, or likely to become prevalent there. The record wholly fails
to show that there were any grounds upon which the board could have
any reasonable belief that the public health was in any danger what-
ever.
Neither the board of health nor the board of directors having any
power to make and enforce the order in question under the facts of
Ch. 1)
51.
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
this case, it follows that appellees were unlawfully excluded from the
school.
The powers of school officers under the statute have been consid-
ered by this court in numerous cases. Rulison v.· Post, 79 Ill. 567;
Trustees of Schools v. People, 87 Ill. 303, 29 Am. Rep. 55; McCor-
mick v. Burt, 95 Ill. 263, 35 Am. Rep. 163, Chase v. Stephenson,
171 Ill. 383; People v. Board of Education, 101 Ill. 308, 40 Am. Rep.
196; and other cases. But nothing said in any of those cases sus-
tains the contention of appellants.
The judgment of the Appellate Court affirming the judgment of the
circuit court is affirmed. Judgment affirmed.25
ARMS v. AYER.
(Supreme Court of Illinois, 1901. 192 Ill. 601, 61 N. E. S51, 58 L. R. A.
277, 35 Am. St. Rep. 337.)
Action by Aura C. Arms against Frederick Ayer and others. From
a judgment in defendants' favor, plaintiff appeals. Reversed.
The appellant sued appellees in the superior court of Cook county,
in case, to recover damages for unlawfully causing the death of her
intestate. The declaration is very voluminous, consisting of 10 counts,
to each of which the defendants interposed a general and special de-
murrer. The circuit court sustained the demurrer, and gave judg-
ment for the defendants. This appeal is from that judgment.
The cause of action in each count of the declaration is based upon
an alleged violation of the fire-escape act, approved May 27, 1897
25 “Neither the holding of the Supreme Court of Illinois nor that of the
Wisconsin Supreme Court in the cases mentioned [Potts v. Breen, 167 Ill. 67,
47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262 (1897); State ex rel.
Adams V. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, 60 Am. St.
Rep. 123 (1897)] can, under the facts be said to militate against the conclui-
sion which we reach in the case at bar. In fact, there is much asserted in
both cases which may be said to be in harmony with our holding herein. We
are not called upon, however, to decide whether a rule of either the state
board or local board of health can be carried beyond the limits of the facts
of this case. Appellant contends that, under the order of the local board, his
son was to be permanently expelled from the public schools of the city of
Terre Haute unless he submitted to vaccination. No such unreasonable in-
terpretation can be placed upon the rule or order in question. The order was
the offspring, as we have seen, of an emergency arising from a reasonable ap-
prehension upon the board's part that smallpox would become epidemic or
prevalent in the city of Terre Haute. The rule or order could not be con-
sidered as having any force or effect beyond the existence of that emergency:
and Kleo Blue, by virtue of its operation, could only be excluded from school
upon his refusal to be vaccinated, until after the danger of an epidemic of
smallpox had disappeared. Any other construction than this would render
the rule or order absurd, and place the board in the attitude of attempting
to usurp authority. Such an interpretation is not authorized when a more
reasonable one can be supplied.” Blue v. Beach, 155 Ind. 121, 140, 56 N. E.
89, 50 L. R. A. 64, 80 Am. St. Rep, 195 (1900).
52
(Part 1
ADMINISTRATIVE POWER AND ACTION.
(Laws 1897, p. 222), and the general demurrer goes to the validity of
the act. It is as follows:
"Section 1. That within three (3) months next after the passage
of this act all buildings in this state which are four or more stories
in height, excepting such as are used for private residences exclusively,
but including flats and apartment buildings, shall be provided with one
or more metallic ladder or stair fire-escapes attached to the outer walls
thereof, and provided with platforms of such form and dimensions,
and such proximity to one or more windows of each story above the
first, as to render access to such ladder or stairs from each such story
easy and safe, and shall also be provided with one or more automatic
metallic fire-escapes, or other proper device, to be attached to the in-
side of said buildings so as to afford an effective means of escape to
all occupants who, for any reason, are unable to use said ladders or
stairs; the number, location, material and construction of such escapes
to be subject to the approval of the inspector of factories: provided,
however, that all buildings more than two stories in height, used for
manufacturing purposes, or for hotels, dormitories, schools, seminaries,
hospitals, or asylums, shall have at least one such ladder fire-escape
for every fifty (50) persons, and one such automatic metallic escape,
or other device, for every twenty-five (25) persons, for which work-
ing, sleeping or living accommodations are provided above the second
stories of said buildings; and that all public halls which provide seat-
ing room above the first or ground story shall be provided with such
numbers of said ladder and other fire-escapes as said inspector of
factories shall designate.
"Sec. 2. All buildings of the number of stories and used for the
purposes set forth in section 1 of this act which shall be hereafter
erected within this state shall, upon or before their completion, each
be provided with fire-escapes of the kind and number and in the man-
ner set forth in this act.
"Sec. 3. It shall be the duty of said inspector of factories to serve
a written notice, in behalf of the people of the state of Illinois, upon
the owner or owners, trustees or lessees, or occupant, of any build-
ing within this state not provided with fire-escapes in accordance with
the requirements of this act, commanding such owner, trustee, lessee
or occupant, or either of them, to place or cause to be placed upon
such building such fire-escape or escapes as provided in section 1 of
this act, within thirty (30) days after the service of such notice. * * *
"Sec. 4. Any such owner or owners, trustee, lessee, or occupant, or
either of them, so served with notice as aforesaid, who shall not, within
thirty (30) days after the service of such notice upon him or them,
place or cause to be placed such fire-escape or escapes upon such build-
ing as required by this act and the terms of such notice, shall be sub-
ject to a fine of not less than $25 or more than $200, and to a further
fine of $50 for each additional week of neglect to comply with such
notice.
Ch. 1)
53
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
*
"Sec. 5. The erection and construction of any and all fire-escapes
provided for in this act shall be under the direct supervision and con-
trol of said inspector of factories, and it shall be unlawful for any per-
son or persons, firm or corporation to erect or construct any fire-escape
or escapes, except in accordance with a written permit first had and
obtained and signed by said inspector of factories, which permit shall
prescribe the number, location, material, kind and manner of construc-
tion of such fire-escape.
"Sec. 6. Any person or persons, firm or corporation, who shall be
required to place one or more fire-escapes upon any building or build-
ings, under the provisions of this act, shall file in the office of said in-
spector of factories a written application for a permit to erect or con-
struct such fire-escape or escapes, which application shall briefly de-
scribe the character of such building or buildings, the height and num-
ber of stories thereof, the number of fire-escapes proposed to be placed
thereon, the purposes for which such building or buildings is or are
used, and the greatest number of people who use or occupy or are
employed in such building or buildings above the second stories thereof
at any one time.”
WILKIN, C. J.28 (after stating the facts). The argument in this
case is mainly upon the constitutionality and validity of the act of 1897,
and we shall confine our consideration of the case to that question.
We see no substantial objection to at least some of the counts on the
special demurrer.
The first objection made to the statute by counsel for appellees is
that it imposes legislative power upon the inspector of factories, in that
it authorizes him to determine how many, and in what position, fire-
escapes shall be placed, etc. It must be admitted that the act is loosely
drawn, but the rule that it is the duty of courts to so construe statutes
as to uphold, their constitutionality and validity, if it can be reasonably
done, is so well established that the citation of authorities is needless.
In other words, if the proper construction of a statute is doubtful,
courts must resolve the doubt in favor of the validity of the law. Stat-
utes and city ordinances providing for fire-escapes are usually some-
what general in their enactments, and necessarily so, for the reason
that it is impossible for the Legislature to describe in detail how many
fire-escapes shall be provided, how they shall be constructed, and
where they shall be located, in order to serve the purpose of protect-
ing the lives of occupants, in view of the varied location, construction,
and surroundings of buildings; and hence, so far as we have been
able to ascertain, acts similar to the first section of this statute have
been sustained in other states, though perhaps the question here raised
has never been directly presented. Rose v. King, 49 Ohio St. 213, 30
N. E. 267, 15 L. R. A. 160; Willy v. Mulledy, 78 N. Y. 310, 34 Am.
Rep.-536; Pauley v. Lantern Co., 131 N. Y. 90, 29 N. E. 999, 15 L.
R. A. 194; Schott v. Harvey, 105 Pa. 222, 51 Am. Rep. 201; City of
20 Portions of this case are omitted.
54
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ADMINISTRATIVE POWER AND ACTION.
Cincinnati v. Steinkamp, 54 Ohio St. 284, 43 N. E. 490; Sewell v.
Moore, 166 Pa. 570, 31 Atl. 370; Keely v. O'Conner, 106 Pa. 321;
In re Fire-Escapes, 2 Pa. Dist. R. 623.
The general rule is that a statute must be complete when it leaves
the Legislature—as to what the law is—leaving its execution to be
vested in third parties. Thus it was said in Dowling v. Insurance
Co., 92 Wis. 63, 65 N. W. 738, 31 L. R. A. 112: "The result of all
the cases on this subject is that a law must be complete in all its
terms and provisions when it leaves the legislative branch of the gov-
ernment, and nothing must be left to the judgment of the electors, or
other appointee or delegate of the Legislature, so that in form and sub-
stance it is a law in all its details in præsenti, but which may be left to
take effect in futuro, if necessary, upon the ascertainment of any pre-
scribed fact or event." And it is said in Suth. St. Const. § 68: "The
true distinction is between a delegation of power to make the law,
which involves a discretion as to what the law shall be, and conferring
an authority or discretion as to its execution, to be exercised under and
in pursuance of the law. The first cannot be done.
The first cannot be done. To the latter no
objection can be made."
In People v. Reynolds, 5 Gilman, 1, it was held that to establish the
principle that, whatever the Legislature may do, it shall do in every
detail, or else it shall go undone, would be almost to destroy the gov-
ernment. It is there said (page 13): “Necessarily, regarding many
things, especially affecting local or individual interests, the Legislature
may act either mediately or immediately. We see, then, that, while
the Legislature may not devest itself of its proper functions or del-
egate its general legislative authority, it may still authorize others to
do those things which it might properly, yet cannot understandingly
or advantageously, do itself. Without this power, legislation would
become oppressive and yet imbecile."
In this act the law is complete in all its details, requiring the fire-
escapes to be put in certain buildings. The outside escapes must be
so constructed as to render access to the same from each story easy and
safe. Though meaningless in so far as it speaks of "automatic metal-
lic fire-escapes," it does require a proper device to be attached to the
inside of the described buildings, so as to afford an effective means of
escape to all occupants who for any reason are unable to use the lad-
ders or stairs. In the execution of the law the inspector of factories
is given a discretion as to the number, location, material, and con-
struction of such escapes in each and every building. We are unable
to see in what way the act, thus understood and construed, delegates to
the inspector of factories legislative power.
Of still less force is the objection that the act confers judicial power
upon the inspector of factories. The inspector is given no power to
judicially determine any question, but acts ministerially in the super-
vision of the building of fire-escapes. Judicial power is “the power
which adjudicates upon and protects the rights and interests of in-
Ch. 1)
55
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
5
*
dividual citizens, and to that end construes and applies the law." The
judicial power is never extended to cases of the exercise of judgment
in the execution of a ministerial power. Land Owners v. People, 113
I11. 296.
It is said that, “even though it is assumed that the law is capable
of enforcement, no one can be held liable for the nonperformance
therewith until the inspector of factories has served the notice re-
quired by the act." With this contention we cannot agree. It is true,
the first and second sections do not say who shall provide the re-
quired fire-escape, but we think the fair and reasonable intendment is
that the owner or owners shall perform the duty; and we so held in
construing the fire-escape act of 1885 (Laws 1885, p. 201), the provi-
sions of which in this regard are the same as the act under considera-
tion, in the recent case of Landgraf v. Kuhi, 188 Ill. 484, 59 N. E.
501. The language of section 6, "who shall be required to place one
or more fire-escapes upon any building or buildings, under the provi-
sions of this act," does not mean who shall be required by the in-
spector of factories, but who shall be required by the act. The duty
to provide fire-escapes upon buildings described in section 1 does not
depend upon the perforinance of any duty by the inspector of factories.
In McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153, the language
of the act under which the suit was brought was, "in any store or
building in the city of New York in which there shall exist or be
placed any hoisting elevator or well-hole, the openings thereof through
and upon each floor of such buildings shall be provided with and
protected by a substantial railing, and such good and sufficient trap-
doors with which to enclose the same, as may be directed and ap-
proved by the superintendent of buildings"; and it was held: “The
exercise of the duty imposed upon the defendants by this statute was
not dependent upon any action of the superintendent of buildings.
They could not properly delay for him to direct, but it was for them
to call on him for directions and approval in that respect."
In Willy v. Mulledy, supra, where the act provided "that every
building in the city of Brooklyn should have a scuttle or place of
egress in the roof thereof," etc., and also that certain houses "shall be
provided with such fire-escapes and doors as shall be directed and ap-
proved by the commissioner" (of the department of fire and buildings),
and also that "any person, after being notified by such commissioner,
who shall neglect to place upon any such building the fire-escapes
herein provided for, shall forfeit the sum of $500 and shall be guilty
of a misdemeanor," it was held: "The owner of the building in ques-
tion was bound to provide it with a fire-escape. He was not permit-
ted to wait until he should be directed to provide one by the com-
missioners. He was bound to do it in such way as they should direct
and approve, and it was for him to procure their direction and ap-
proval.” And the court further says: "Here was, then, an absolute
duty imposed upon a defendant by statute, to provide a fire-escape;
56
(Part 1
ADMINISTRATIVE POWER AND ACTION.
and the duty was imposed for the sole benefit of the tenants of the
house, so that they would have a mode of escape in case of a fire.
For the breach of this duty, causing damage, it cannot be doubted that
the tenants have a reniedy.” To the same effect is Rose v. King,
supra.
When the act went into effect it was the duty of every owner, trus-
tee, or lessee or occupant in the actual control of any building within
the description mentioned in the first section, in obedience to section
6, to file in the office of the inspector of factories a written application
for a permit to erect or construct fire-escapes; and if these defendants
failed to do so, as alleged in the several counts of the declaration, and
injury resulted from their failure to place the required fire-escapes
in the building described, they incurred a liability to the person in-
jured, and cannot escape that liability merely because they may not
have been designated by the inspector of factories as the persons upon
whom the duty was imposed to comply with the law. In other words,
the law imposed upon them the performance of the duty, and the ac-
tion of the inspector of factories, the grand jury, the sheriff, and the
circuit and criminal courts is only made necessary in case they failed
to do that duty. It has been held that the term "owner," in similar
statutes, does not mean the owner of the fee, but may mean the lessee
in actual possession and control of the building, but we are not aware
that any court has held such laws invalid because of their failure to
definitely designate who should be liable. We think it clear that un-
der this statute the owner is primarily liable for a failure to perform
the duty.
The judgment of the superior court will be reversed, and the cause
will be remanded to that court for further proceedings not inconsistent
with the views here expressed. Reversed and remanded.
SCHAEZLEIN et al. v. CABANISS, Judge.
(Supreme Court of California, 1902. 135 Cal. 466, 67 Pac. 755, 56 L. R. A.
733, 87 Ain. St. Rep. 122.)
In Bank. Certiorari by Robert Schaezlein and others against George
H. Cabaniss, Judge of the Police Court of the City and County of San
Francisco, to review a judgment of the latter court convicting the re-
lator of misdemeanor. Judgment reversed.
PER CURIAM. This is certiorari to the police court of the city and
county of San Francisco. Petitioners were charged with violating
the provisions of "an act to provide for the proper sanitary condition
of factories,” etc., approved February 6, 1889. That act declares as
follows: "If in any factory or workshop any process or work is car-
ried on by which dust, filaments or injurious gases are generated or
produced that are liable to be inhaled by the persons employed therein,
.
Ch. 1)
57
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
and it appears to the commissioner of the bureau of labor statistics
that such inhalation could, to a great extent, be prevented by the use
of some mechanical contrivance, he shall direct that such contrivance
shall be provided, and within a reasonable time it shall be so provided
and used.” Section 6 of the act makes it a misdemeanor for any per-
son to violate any of the provisions of the act. St. 1889, p. 3.
Petitioners were convicted of having unlawfully refused and neg-
lected, after notice, to provide and use a suction exhauster with prop-
erly attached pipes, hoods, etc., in a metal polishing shop, within a
reasonable time after having been directed so to do. The ultimate
question presented for consideration under this writ is that of the
constitutionality of the act above quoted.
That the Legislature may not delegate its lawmaking functions,
excepting to such agents and mandatories as are recognized by the
Constitution, is, of course, beyond controversy. Equally we think be-
yond controversy, however, is the right of the state, in the exercise
of its police power, to pass reasonable laws for the protection of the
health of employés in given vocations, and to make the violation of
those laws penal offenses. The limit to which the state inay go in
this direction is not as yet well defined, but the argument that any such
legislation is an interference with the right of property—the free right
of contract between employer and employé-has been disposed of and
settled by the courts in numerous decisions.
Thus says the Supreme Court of the United States in Holden v.
Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780: "The Legis-
lature has also recognized the fact, which experience of legislators
in many states has .corroborated, that the proprietors of these estab-
lishments and their operatives do not stand upon an equality, and that
their interests are, to a certain extent, conflicting. The former nat-
urally desire to obtain as much labor as possible from their employés,
while the latter are often induced by the fear of discharge to conform
to regulations which their judgment, fairly exercised, would pronounce
to be detrimental to their health or strength. In other words, the
proprietors lay down the rules, and the laborers are practically con-
strained to obey them. In such a case self-interest is often an unsafe
guide, and the Legislature may properly interpose its authority."
So we have upon the statute books numerous requirements looking
to the safety, and even the welfare, of employés in different voca-
tions. Protection against the inclemency of the weather for motor-
men, hand rails to stairs, inclosing hoist shafts, automatic doors to
elevators, automatic shifters for throwing off belts and pulleys, fire
escapes on buildings, water supplies in tenement houses, are examples
of this class and kind of legislation, which have been pionounced valid
by the courts.
In People v. Smith, 108 Mich. 527, 66 N. W. 382, 32 L. R. A. 853,
62 Am. St. Rep. 715, it is well said: "The trouble with these cases
arises over the inability of the courts to fix a rigid rule by which the
58
(Part 1
ADMINISTRATIVE POWER AND ACTION.
validity of such laws may be tested. Each law of the kind involves
the questions: (1) Is there a threatened danger? (2) Does the regu-
lation invade a constitutional right? (3) Is the regulation reason-
able?"
It is no longer in dispute that these laws may be and are upheld as
proper exercise of the police powers when they affect, not the health
of the community generally, but the health or welfare of operatives em-
ployed in any given vocation. The law is not to be condemned as
special legislation because it does not affect all the people, provided it
affects the welfare of a portion of the community, or of any indefinite
number similarly situated. Therefore the power of the Legislature
by general law to provide for the proper sanitation of factories, found-
ries, mills, and the like, does not call for discussion. It is no in-
vasion of the right of the employer freely to contract with his em-
ployé to provide by general law that all employers shall furnish a rea-
sonably safe place and reasonably wholesome surroundings for their
employés.
The difficulty with the present law, however, is that it does not so
provide, but that it is an attempt to confer upon a single person the
right arbitrarily to determine, not only that the sanitary condition of
a workshop or factory is not reasonably good, but to say whether, even
if reasonably good, in his judgment its condition could be improved by
the use of such appliances as he may designate, and then to make a
penal offense of the failure to install such appliances. "The very idea
that one man may be compelled to hold. his life, or the means of living,
or any material right essential to the enjoyment of life, at the mere
will of another, seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself.” Yick Wo v. Hopkins,
118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220.
Under the law here in question it matters not how unwholesome,
how dangerous, how unsanitary the condition of any factory or work-
shop may be, the proprietor is guilty of no offense until the com-
missioner of the bureau of labor statistics has required him to use ap-
pliances which the commissioner himself shall designate, and he has
refused so to do. Nor does it matter if the condition of such a work-
shop be reasonably wholesome for the uses of the operatives, if "dust,
filaments, or injurious gases" are "liable to be inhaled” (and it is here
the mere liability, and not the fact, of the inhalation which invites
the action of the commissioner), and if, in the opinion of the com-
missioner, such liability to inhalation could "to a great extent" be pre-
vented, he may designate and prescribe the kind of appliance which in
his judgment is suitable for such purpose, and it must be employed.
But the judgment of the commissioner is not only the determinative
factor in the proposition as to whether or not the condition of the fac-
tory may be improved “to a great extent,” but under this law it is ab-
solutely conclusive and binding upon the question of the appliances to
be used; and thus it may result, as to three factories similarly situated,
Ch. 1)
59
EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE.
which as to sanitation or the danger from inhalation are in precisely
the same condition, that the proprietor of one may be guilty of no of-
fense because he has not been notified by the commissioner to adopt
any appliance, the proprietor of the second may be called upon to put
into use some appliance at a trifling cost, while the proprietor of the
third may have imposed upon him an expense for apparatus amounting
to thousands of dollars. In short, arbitrarily, and within the declara-
tion, not of the Legislature, but of the commissioner, no burden what-
ever may be imposed upon one institution, while the other, in obedience
to this law, may be subjected to a most onerous and even destructive
expense. The Legislature, as we have said, may require the owners
of factories and workshops to put their buildings in proper condition
as to sanitation, may require them to provide reasonable safeguards
against danger for the operatives, but it may not leave the question
as to whether and how these things shall be done or not done at the
arbitrary disposition of any individual.
By respondent reliance is placed on the case of Taylor v. Hughes,
62 Cal. 38. In that case section 637 of the Penal Code was under re-
view. It provides that every owner of a dam or other obstruction in
any running water of this state, who after being ordered and notified
by the fish commissioners to construct a fish ladder or to repair a fish
ladder already constructed on such dam or other obstruction, accord-
ing to the plans of the fish commissioners, fails to construct or repair
such fish ladder within 30 days after such notice, is guilty of a mis-
demeanor. The application was for a writ of review in which was set
forth the complaint, charging petitioner Taylor with a violation of
this statute, and his conviction thereunder. The decision of this court,
embraced in a single sentence, was to the effect that the application did
not present grounds for the issuance of the writ. The distinction,
however, between that case and the case at bar is broad. The running
waters of the state of California are public property. One who ob-
structs them obstructs them under license or permission from the state,
but only upon such conditions as to their use as the state may impose.
It is therefore permissible for the state to impose such conditions upon
that use as it may see fit, and in this case the requirement was that
the person so obstructing the water should build an appliance to per-
mit the free running of the fish up the stream. Here was no inter-
ference with private property; here was merely a condition imposed
by the state upon a private individual as to his use of property, the title
to which, and the right of fishery in which, remained in the public.
The same broad distinction exists between the case at bar and that
of Health Department of City of New York v. Rector, etc., of Trinity
Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St.
Rep. 579, also relied upon by respondent. In the latter case, section
663 of the consolidation act of the city of New York required all ten-
ement houses to be supplied with sufficient water on each floor, at one
or more places, in sufficient quantity, by the owners, whenever they
60
(Part 1
ADMINISTRATIVE POWER AND ACTION.
were directed so to do by the board of health, making it a misde-
meanor to fail to comply with the directions of the board. Here the
only requirement was that a sufficient quantity of water should be
supplied on each floor of the tenement building. To answer this law,
it was necessary only to show that a sufficient quantity of water was
supplied for the health and convenience of the tenants. The direc-
tion of the board of health, or its determination that the supply was in-
sufficient, was not conclusive; for, as the court said in sustaining the
validity of the law: "The citizen cannot under this act be punished in
any. way, nor can any penalty be recovered from him for an alleged
noncompliance with any of its provisions or with any order of the
board of health, without a trial. The punishment or penalty provided
for in section 665 cannot be enforced without a trial under due process
of law, and upon such trial he has an opportunity to show whatever
facts would constitute a defense to the charge."
The manifest objection to this law is that upon the commissioner
has been imposed, not the duty to enforce a law of the Legislature, but
the power to make a law for the individual, and to enforce such rules
of conduct as he may prescribe. It is thus arbitrary, special legislation,
and violative of the Constitution.
For the foregoing reasons, the police court is directed to annul
the proceedings touching the trial, conviction, and judgment against
petitioner herein.27
27 "The claim that the statute commits to the arbitrary discretion of the
Secretary of the Treasury the determination of what teas may be imported,
and therefore in effect rests that official with legislative power, is without
merit. We are of opinion that the statute, when properly construed, as said
by the Circuit Court of Appeals, but expresses the purpose to exclude the
lowest grades of tea, whether demonstrably of inferior purity, or unfit for
consumption, or presumably so because of their inferior quality. This, in ef-
fect, was the fixing of a primary standard, and devolved upon the Secretary
of the Treasury the mere executive duty to effectuate the legislative policy
declared in the statute. The case is within the princinle of Marshall Field
& Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495, 36 L: Ed. 294, where
it was decided that the third section of the tariff act of October 1, 1890 (20
Stat. 567, c. 1244), tras not repugnant to the Constitution as conferrinġ legis-
lative and treaty-making power on the President, because it authorized him
to suspend the provisions of the act relating to the free introduction of sugar,
molasses, coffee, tea, and hides. We may say of the legislation in this case,
as was said of the legislation considered in Marshall Field & Co. v. Clark,
that it does not, in any real sense, invest administrative officials with the
power of legislation. Congress legislated on the subject as far as was rea-
sonably practicable, and from the necessities of the case was compelled to
leave to executive officials the duty of bringing about the result pointed out
by the statute. To deny the power of Congress to delegate such a duty would,
in effect, amount but to declaring that the plenary power vested in Congress
to regulate foreign commerce could not be efficaciously exerted.” Buttfield v.
Stranahan, 192 U. S. 470, 496, 24 Sup. Ct. 349, 48 L. Ed. 525 (1904).
Ch. 2)
61
ADMINISTRATIVE DISCRETION.
CHAPTER II
ADMINISTRATIVE DISCRETION
SECTION 8.- CONSTRUCTION OF POWERS
JACOB (TOMLINS) LAW DICTIONARY, LONDON, 1809, v.
DISCRETION.
Where anything is left to any person to be done according to his
discretion, the law intends it must be done with a sound discretion and
according to law; and the Court of King's Bench hath a power to re-
dress things that are otherwise done notwithstanding they are left to
tlie discretion of those that do them. 1 Lil. Abr. 477.
Discretion is to discern between right and wrong, and therefore
whoever liath power to act at discretion is bound by the rule of reason
and law. 2 Inst. 56, 298.
And though there be a latitude of discretion given to one, yet he
is circumscribed that what he does be necessary and convenient, with-
out which 110 liberty can defend it. Hob. 258.
STATE v. JUSTICES OF INFERIOR COURT OF MORGAN
COUNTY.
(Supreme Court of Georgia, 1854. 15 Ga. 408.)
Lester Markland applied to the inferior court of Morgan county for
an order for a license to retail spirituous liquors in that county, hay-
ing paid for such license, and being ready to give the bond and se-
curity required. The court refused to grant the license, on the ground
that the applicant was an unfit person to be so licensed—having been
twice convicted of selling spirituous liquor to slaves, contrary to law.
On hearing this return to a mandanıus nisi, Judge Hardeman re-
fused to make the mandamus absolute. This decision is assigned as
error.
1
*
STARNES, J.
It is agreed that the first act on this sub-
ject, now of force in our state, was passed in 1791. This was entitled
"An act for regulating taverns," etc. The first section provided that
upon the petition of any person wishing to keep a tavern, or house
1 Only a portion of the opinion is printed.
62
(Part 1
ADMINISTRATIVE POWER AND ACTION.
"
of entertainment, the justices of the inferior court, held for the county
of such person's residence, shall "consider the convenience of such
place intended for a tavern, and having regard to the ability of such
petitioner to keep good and sufficient accommodations for travellers,
their horses and attendants, may, at their discretion, grant a license,'
etc., provided that the applicant should enter into bond, with sufficient
security, "conditioned for the keeping an orderly and decent house,
with good and sufficient accommodation for travellers," etc. The sec-
ond section required the rates of charges to be fixed by the court.
The third provided a penalty for retailing without license. The fourth
fixed the price to be paid for such license; and the fifth repealed con-
flicting acts, and gave to the corporations of Savannah and Augusta
the right to regulate licenses in those cities.
Let us remark, also, that the limits of the discretion, by this act
conferred upon the inferior court, are: (1) A consideration of the
convenience of the locality intended for a tavern. (2) The ability of
the petitioner to supply such tavern with proper accommodation for
travellers, their horses and attendants. And that no discretion, what-
ever, is given the inferior court, by which to grant or refuse the li-
cense, according as the character of the applicant may be good or bad.
The only provision which seems to have been contemplated, as a
protection against the grant of such license, to a person of bad moral
character, was the requirement of bond and security, for the keeping
an orderly and decent house.
Let the judgment be reversed.2
*
*
PEOPLE ex rel. SHEPPARD V. ILLINOIS STATE BOARD OF
DENTAL EXAMINERS.
(Supreme Court of Illinois, 1984. 110 Ill. 180.)
This is an original proceeding in this court for a mandamus. The
petition therefor is as follows:
"The petitioner, Isaac N. Sheppard, a citizen of the state of Illinois,
residing in the city of Paris, county of Edgar, in said state, complain-
ing, shows unto the court that he is twenty-one years of age; that he
became a student at the Indiana Dental College, an institution duly
organized under the laws of the state of Indiana, located at the city
of Indianapolis, in said state, on the 3d day of October, 1881, said
institution being a college for the purpose of educating persons in the
theory and practice of dentistry and dental surgery; that he attended
said college as a student, as aforesaid, during his two full terms there-
of, and pursued a course of study in the theory and practice of den-
tistry and dental surgery during all that time at said college, and that
he completed said course of study, and was graduated from said col-
2 Compare State v. 'Hanlon, 24 Neb. 608, 612, 613, 39 N. W. 780 (1858).
Ch. 2)
63
ADMINISTRATIVE DISCRETION.
lege on the 7th day of March, A. D. 1883, and thereupon, to wit, on
the day last aforesaid, he received a diploma from the faculty of said
Indiana Dental College, duly authenticated by the signatures of the
faculty of said college and the officers thereof; that said Indiana
Dental College is a reputable dental college, and during the time peti-
tioner was a student therein, and at the time of issuing said diploma
by the faculty of said dental college to petitioner, there was annually
delivered at said college å full course of lectures and instruction in
dental surgery. Petitioner further shows unto the court that desiring
to engage in the practice of dentistry in this state, he afterwards, to
wit, on or about the 18th day of March, 1883, presented his said diplo-
ma so received from the faculty of said Indiana Dental College, duly
authenticated, to the Illinois State Board of Dental Examiners, and
tendered to said board a fee of one dollar, as provided by law, and
demanded that said board issue to him, the petitioner, a license to
practice dentistry in the state of Illinois, as provided by law. Peti-
tioner further shows to the court that it was the duty of said board
of dental examiners, upon the presentation of said diploma, and the
tender of the fee of one dollar, as aforesaid, to said board by said peti-
tioner, and the demand, as aforesaid, to issue to petitioner a license
to practice dentistry in the state of Illinois, and that the said board
of dental examiners, not regarding their said duty in this behalf, there-
upon, to wit, on the day last aforesaid, refused to issue to petitioner
a license to practice dentistry in this state, and have continually re-
fused, and still do refuse, to issue to petitioner such license. Peti-
tioner further shows unto the court that the members of the said board
of dental examiners are G. V. Black, A. W. Harlan, O. Wilson, J.
J. Jennelle and George H. Cushing, and that by the failure and refusai
of said board of dental examiners to so issue and grant petitioner a
license to practice dentistry, as aforesaid, he, the petitioner, has been
prevented from practicing dentistry in this state, as he is lawfully and
by right entitled to do; that he has qualified himself for the prac-
tice of said profession at great expenditure of time and money, and
depends upon the same for a living. Petitioner further shows unto
the court that the determination of the questions involved in this pe-
tition is not only one of great importance to him individually, but is
also a matter of public importance, as numbers of the graduates of
said dental college, citizens of this state, and circumstanced like peti-
tioner, desire to practice dentistry in this state, and are prevented
therefrom by like refusal of said board of dental examiners. Where-
fore being without other legal remedy, petitioner prays for a writ of
mandamus, directed to the Illinois State Board of Dental Examiners,
commanding them to forthwith receive from petitioner the fee of one
dollar, and thereupon to issue to petitioner a license to practice den-
tistry in the state of Illinois, and to deliver the same to petitioner, and
that such further order may be made in the premises as justice may
require."
64
(Part 1
ADMINISTRATIVE POWER AND ACTION.
.
The Attorney General demurs to the petition.
Mr. Justice SCHOLFIELD delivered the opinion of the court.
It is provided by the first section of an act approved May 30, 1881,
entitled "An act to insure the better education of practitioners of dental
surgery, and to regulate the practice of dentistry in the state of Illi-
nois,” “that it shall be unlawful for any person who is not at the time
of the passage of this act engaged in the practice of dentistry in this
state, to commence such practice, unless such person shall have received
a diploma from the faculty of some reputable dental college duly au-
thorized by the laws of this state, or of some other of the United
States, or by the laws of some foreign country, in which college or
colleges there was, at the time of the issue of such diploma, annually
delivered a full course of lectures and instruction in dental surgery.”
And in the sixth section of the same act, after providing for examina-
tion before the board of dental examiners of all applicants for license
to practice dentistry, is the following provision: "But said board shall,
at all times, issue a license to any regular graduate of any reputable
dental college, without examination, upon the payment by such grad-
uate to the said board of a fee of one dollar." Other provisions of the
act prohibit any person to practice dentistry without a license from the
board, except such as are properly enrolled as having been practitioners
at the time of the passage of the act.
The contention of the relator is that the board of dental examiners
have no power to decide what is, or what is not, a "reputable dental
college”-that the law has itself defined what is a "reputable dental
college," in providing that it shall be "duly authorized by the laws
of this state, or some other of the United States, or by the laws of
sone foreign country, in which college * there was, at the
tiine of the issue of such diploma, annually delivered a full course of
lectures and instruction in dental surgery.” We are unable to appre-
ciate the force of this position. The word "reputable” would seem
to be used here to express the meaning ordinarily attached to it. If
it had been intended that a diploma from any dental college, or a
diploma from any dental college "duly authorized by the laws of this
state, or some other of the United States, or by the laws of some for-
eign country, in which college * there was, at the time of the
issue of such diploma, annually delivered a full course of lectures
and instruction in dental surgery,” we must presume the language
would have so said. By using the word “reputable, we must presume
the General Assembly meant "reputable." And since it is not used
as being the equivalent and convertible for the other requirements
in regard to the college, but as in addition thereto, we must presume
it was intended to be so construed.
As a part of the current history of the times, and as an aid in ar-
riving at the legislative intention, we know there were colleges of
different kinds authorized by the laws of states in which they were
located, in which there were pretended to be annually delivered full
Ch.2)
65
ADMINISTRATIVE DISCRETION.
courses of lectures and instruction upon the arts and sciences pro-
fessed to be taught, that were not "reputable,” because they graduat-
ed for money, frequently without any reference to scholarship. A
diploma from such an institution afforded no evidence of scholar-
ship or attainments in its holder. It was a fraud, and deserved no
respect from anybody, and it was as against such diplomas the law
was intended to protect the public, and therefore required that the
colleges be "reputable.” Whether a college be reputable or not is
not a legal question, but a question of fact. So, also, are the require-
ments in regard to the annual delivery of full courses of lectures
and instruction. These questions of fact are, by the act, submitted
to the decision of the board—not in so many words, but by the plain-
est and most necessary implication. Their action is to be predicated
upon the existence of the requisite facts, and no other tribunal is
authorized to investigate them, and of necessity, therefore, they must
do so. The act of ascertaining and determining what are the facts,
is in its nature judicial. It involves investigation, judgment, and dis-
cretion.
The office of the writ of mandamus is, in general, to compel the
performance of inere ministerial acts prescribed by law. It lies,
however, also to subordinate judicial tribunals, to compel them to
act where it is their duty to act, but never to require them to decide
in a particular manner. It is not, like a writ of error or appeal, a
remedy for erroneous decisions. Judges of Oneida Common Pleas v.
People, 18 Wend. (N. Y.) 92. And, as is said by the court in People
v. Common Council of Troy, 78 N. Y. 33, 34 Am. Rep. 500: "This
principle applies to every case where the duty, performance of which
is sought to be compelled, is in its nature judicial, or involves the
exercise of judicial power or discretion, irrespective of the general
character of the officer or body to which the writ is addressed. A
subordinate body can be directed to act, but not how to act, in a
matter as to which it has the right to exercise its judgment. The
character of the duty, and not that of the body or officers, determines
how far performance of the duty may be enforced by mandamus.
Where a subordinate body is vested with power to determine a ques-
tion of fact, the duty is judicial, and though it can be compelled by
mandamus to determine the fact, it can not be directed to decide it in
a particular way, however clearly it be made to appear what the de-
cision ought to be.” See, also, Kelly et al. v. City of Chicago, 62
I11. 279.
Illustrations of the principle will be found in People v. Common
Council of Troy, supra; Freeman v. Selectmen, 34 Conn. 406; Hoole
v. Kinkead, 16 Nev. 217; Bailey v. Ewart, 52 Iowa, 111, 2 N. W.
1009; Berryman v. Perkins, 55 Cal. 483; People v. Contracting
Board, 27 N. Y. 378, and other cases cited in argument by the At-
torney General.
FR. ADM.LAW.--5
66
(Part 1
ADMINISTRATIVE POWER AND ACTION.
The demurrer here does not admit that the board of dental ex-
aminers found that the college at which the relator was graduated
was reputable, although it does admit, that [i. e., that he was grad-
uated] to be the fact. But since the board cannot be compelled to
decide the question that way, although the evidence might clearly
sustain it in doing so, there is no ground for mandamus.
The demurrer must be sustained, and the petition dismissed.
Demurrer sustained. 3
AYERS V. HATCH, Mayor, et al.
(Supreme Judicial Court of Massachusetts, 1900. 175 Mass. 489, 56 N. E.
612.)
Petition for mandamus by Henry W. Ayers against Arthur W.
Hatch, Mayor, and others, to compel reinstatement to the office of
City Assessor of the City of Everett. Dismissed.
MORTON, J.* * The remaining question is whether the
removal was valid under the city charter, which provides that "any
officer so appointed [i. e. by the mayor] may be removed by the
mayor for such cause as he shall deem sufficient and shall assign
in his order of removal, and the removal shall take effect upon the
filing of the order therefor in the office of the city clerk and the
service of a copy of such order upon the officer removed, either
personally or at his last and usual place of abode.” St. 1892, c. 355,
§ 29. The petitioner was appointed by the mayor. The charter pro-
vides that "the mayor shall be the chief executive officer of the
city, and the executive powers of the city shall be vested in him and
shall be exercised by him either personally or through the several
officers and boards in their respective departments, under his gen-
eral supervision and control.” The responsibility for the due and
proper administration of the affairs of the city is thus placed large-
ly upon him, and, consistently therewith, he is given the power of
removal. The fact, however, that removals are to be for cause, re-
pels the idea of removal at pleasure, even though the sufficiency of
the cause is for him to decide.
The question then arises, what jurisdiction has this court in re-
gard to removals? The answer, it seems to us, is this: Cause im-
plies, we think, a reasonable ground of removal, and not a frivolous
or wholly unsatisfactory or incompetent ground of removal. If the
cause assigned is a reasonable one, then, whether, under the cir-
cumstances, it is sufficient to justify a removal, is for the mayor to
3 Accord : State ex rel. Kirchgessner v. Board of Health of Hudson County,
53 N. J. Law, 594, 22 Atl. 226 (1891); also, as to "suitable” persons in
licensing sale of intoxicating liquors, Batters v. Dunning, 49 Conn. 479 (1882).
But see, as to holding promotional examinations, when practicable, People
ex rel. Williams v. Errant, 229 Ill. 56, 82 N. E. 271 (1907).
4 Portions of this case are omitted.
Ch.2)
67
ADMINISTRATIVE DISCRETION.
decide, and his decision is final. But whether the cause assigned
constitutes, of itself, as matter of law, ground for removal, is a
question for this court to determine. In the present case the cause
assigned was “the good of the service," and manifestly, it seems to
us, that was good ground for removal. The natural inference would
be that in some respect the petitioner had failed to perform his
duties, or was incompetent or inefficient, or was an unsuitable person
for the position to which he was appointed. If the charter provided,
as in the New York cases relied on by the petitioner (People v. Mayor,
etc., of New York, 19 Hun, 441; Same v. Nichols, 79 N. Y. 582;
Same v. Board of Fire Com’rs of City of New York, 12 Hun, 500),
that removals should be "for cause, and after an opportunity to be
heard,” no doubt he would have been entitled to a particular state-
ment on the grounds embraced in the cause assigned. But we do
not see how it can be said that the cause assigned is not in law a
ground for removal.
The result is that we think that the petition should be dismissed.
So ordered."
HARRISON, MAYOR, et al. v. PEOPLE ex rel. RABEN.
(Supreme Court of Illinois, 1906. 222 Ill. 150, 78 N. E. 52.)
Mandamus by the People, on relation of Henry Raben, to compel
Carter H. Harrison and others, as Mayor, City Clerk, and City
Collector of the City of Chicago, to issue a dramshop license to re-
lator. From a judgment of the Appellate Court, affirming a judg-
ment, awarding the writ, respondents appeal. Reversed.
The people, on the relation of Henry Raben, filed a petition in
the superior court of Cook county against the appellants, as mayor,
city clerk, and city collector of the city of Chicago, for a writ of
mandamus to compel them to issue to the relator a license to keep
a dramshop at 345 East Division street, in said city. The respond-
ents answered the petition, and upon a hearing the court awarded
the writ as prayed. On appeal to the Appellate Court for the First
District that order was affirmed, and the respondents now bring the
case to this court by a further appeal.
The case was heard in the superior court upon an agreed state of
facts, ás follows:
"The only ordinance of the city of Chicago regulating the matter
of granting licenses to keep dramshops is the following:
' '1175. The mayor of the city of Chicago shall from time to
time grant licenses for the keeping of dramshops within the city of
Chicago to persons who shall apply to him in writing therefor and
shall furnish evidence satisfying him of their good character. Each
"
o See, also, Re Guden, 171 N. Y. 529, 64 N. E. 451 (1902).
68
(Part 1
ADMINISTRATIVE POWER AND ACTION.
applicant shall execute to the city of Chicago a bond, with at least
two sureties to be approved by the city clerk or city collector, in
the sum of $500, conditioned that the applicant shall faithfully observe
and keep all ordinances in force at the time of the application of
thereafter to be passed during the period of the license applied for,
and will keep closed on Sundays all doors opening out upon any
street from the bar or room where such dramshop is to be kept, and
that all windows opening upon any street from such bar or room
shall on Sundays, except between the hours of one o'clock a. m. and
five o'clock a. m., be provided with blinds, shutters or curtains, so as
to obstruct the view from such street into such room. Nor shall any
windows be painted or covered in any manner so as to obstruct the
view from such street into such room. No application for a license
sliall be considered until such bond shall have been filed.'
"It is admitted that the petitioner made his application for a license
to keep a dramshop at the place in question, and that in so doing he
did everything required of him by the laws or ordinances; that no
question was or is made of the sufficiency of the bonds tendered
by petitioner, or of his good character; and that his application was
refused solely because the place where he proposed to keep his dram-
shop is immediately next to the grounds of the Lyman Trumbull
School, one of the public schools of the city, the mayor being of
opinion that he has a right to refuse a license when, in his judg-
ment, the place in which it is proposed to keep a dramshop is one
where a dramshop will be a detriment and an injury to the neigh-
borhood and offensive to the best interests of society. It is further
admitted that the south school building has not been used regularly
in the past two years; that it has not been used but two or three
times, though it is ready for use; that some of the rooms in the
north school building are not used, as there are not enough scholars
to require the use of the whole building; that the property is held
for school purposes and intended for use as a school, and that the
location of the proposed saloon with reference to the schvol and the
surroundings is truthfully set out in the following plat."
The plat referred to is immaterial in the decision of the case.
WILKIN, J. (after stating the facts). The only question presented
by this record for our decision is whether, under the ordinance set
forth in the foregoing statement of facts, the mayor of the city of
Chicago is authorized to exercise a discretion in the granting of a
license to keep a dramshop, or whether, on the presentation of an
application for such a license showing that the requirements of the
ordinance have been complied with, he is compelled to grant the
license.
It must be conceded that the business of keeping a saloon or dram-
shop is one which no citizen has a natural or inherent right to pur-
sue, but is the subject of legislative restriction, regulation, and
control. Schwuchow v. City of Chicago, 68 Ill. 444.
Of course,
Ch.2)
69
ADMINISTRATIVE DISCRETION.
where an ordinance authorizes the issuing of a license to keep a
dramshop upon certain terms and conditions, the authorities author-
ized to grant the license cannot arbitrarily refuse the same, nor dis-
criminate between persons, places, and regulations pertaining to the
business, without reasonable grounds therefor. Zanone v. Mound
City, 103 Ill. 552. We are, however, of the opinion that there is
vested in such authorities, unless expressly restricted by the lan-
guage of the ordinance, a discretionary power, which may be reason-
ably exercised in the granting or refusing to issue a license.
The question does not seem to have been directly passed upon by
this court, but the authorities from other states fully sustain this
reasonable construction. In many of these cases the language of
the law or ordinance authorizing the granting of the license is that,
upon the doing of certain things, the licensing officer or body shall
grant the license; but the decisions are to the effect that, neverthe-
less, a discretion exists in such officer or body, and that they will
not be compelled to issue a license when in their discretion, reasona-
bly and fairly exercised, the license has been refused. Leigton v.
Maury, 76 Va. 865; People v. Board of Excise, 91 Hun, 94, 36 N.
Y. Supp. 678; Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845, 21
L. R. A. 580; Attorney General v. Justices, 27 N. C. 315; Muller
v. Commissioners, 89 N. C. 171; Hillsboro v. Smith, 110 N. C.
417, 14 S. E. 972; Perry v. Salt Lake City, Utah, 143, 25 Pac.
739, 998, 11 L. R. A. 446; Eslinger v. East, 100 Ind. 434.
This question was before the Appellate Court for the First Dis-
trict in the case of Swift v. People, 63 Ill. App. 453, and that court,
in a well-considered opinion, held that the mayor of the city of Chi-
cago could not be compelled by mandamus to issue a license to keep
a dramshop in a neighborhood occupied almost exclusively by resi-
dents, and where a saloon would be a nuisance.
The trial court in this case held propositions of law to the effect
that the mayor had the right to exercise a discretion in granting
or refusing the license, among others the following: "It is within
the mayor's right to refuse to grant a license to keep a dramshop
at a place where it will be so close to a school as to be a detriment
and injury to the neighborhood or offensive to the best interests of
society.” Notwithstanding this holding, which we think a correct
announcement of the law, the writ was granted. The judgment
could only be reconciled with the holdings as to the law of the case,
upon the theory that the discretionary power vested in the mayor
had been abused. But that position is untenable. By the stipula-
tion it is agreed that the relator sought a license to keep his saloon
immediately next to the grounds of the Lyman Trumbull School, one
of the public schools of the city. The mayor was of the opinion that
he had a right to refuse a license when in his judgment the place in
which it is proposed to keep a dramshop will be a detriment and in-
70
(Part 1
ADMINISTRATIVE POWER AND ACTION.
jury to the neighborhood and offensive to the best interests of so-
ciety.
It is true that it is stipulated that the school building has not been
used regularly in the past two years, though it is ready for use,
and that some of the rooms in the north school building are not
used, as there are not enough scholars to require the use of the whole
building. Both school buildings are on the same grounds, and it
is agreed that the purpose is to establish a saloon in the immediate
vicinity of these school buildings and the playgrounds. We appre-
hend that no one will seriously contend that a saloon adjacent to or
in the immediate neighborhood of public schools will not tend, in
a greater or less degree, to demoralize and disturb school children.
We are clearly of the opinion that upon the facts in this case there
was no such abuse of discretion on the part of the mayor as would
justify the courts in compelling him to grant the license applied
for.
The judgment of the Appellate Court will be reversed, and the
cause will be remanded to the superior court, with directions to dismiss
the petition.
Judgment reversed.
1
SECTION 9.-CONSIDERATIONS GUIDING DISCRETION
REG. V. BOTELER et al.
(Court of Queen's Bench, 1864. 4 Best & S. 959.)
Poland obtained a rule on behalf of the Board of Guardians of
the Bridgend and Cowbridge Union, calling upon Robert Boteler and
John Samuel Gibbon, Esquires, justices of the peace for the county of
8 Accord : Muller v. Com’rs of Buncombe Co., SI N. C. 171 (1883). See, also,
People ex rel. Schwab v. Grant, 126 N. Y. 473, 27 N. E. 964 (1891).
In other cases, in accordance with the terms of the statute, the issue of
the liquor license has been held to be a ministerial duty. State ex rel. Fitz-
patrick v. Meyers, 80 Mo. 601 (1883); McLeod v. Scott, 21 Or. 94, 26 Pac.
1061, 29 Pac. 1 (1891); Henry v. Barton, 107 Cal. 535, 40 Pac. 798 (1895).
In New York, the liquor tax law of 1896 (Laws 1896, C. 112) made the
right to sell liquor independent of any administrative discretion. See sec-
tion 19 of act as amended in 1897 (Laws 1897, c. 312); People ex rel. Belden
Club v. Hilliard, 28 App. Div. 140, 50 N. Y. Supp. 909 (1898).
Discretion as to renewal of licenses, see the elaborate opinions in Sharp v.
Wakefield (1891] App. Cas. 173. The matter was subsequently dealt with by
the English Licensing Act, 1904. See article on Property in Licenses, 24 Law
Quarterly Review, 49.
Further, regarding the judicial control of administrative discretion, see
cases under mandamus.
The word “may” is often construed as "shall." See Mason v. Fearson, 9
How. 248, 13 L. Ed. 125 (1850); Lewis' Sutherland, Statutory Construction,
$$ 634-610.
Ch.2)
71
ADMINISTRATIVE DISCRETION.
*
*
Glamorgan, and Robert Charles Nicholl Carne, overseer of the poor
of the parish of Nash, in that Union, to show cause why the said
justices should not issue their warrant to levy, by distress and sale
of the goods and chattels of the said R. C. N. Carne, the sum of
£14. 11s., the amount ordered by the guardians of the poor of the
Union to be paid by him from the poor rates of the parish, towards
the relief of the poor thereof, and as the contribution of the parish
to the common fund of the Union.
Carne having refused to obey the order, the guardians obtained
a summons against him under St. 2 & 3 Vict. c. 84, § 1. Upon
the hearing of the summons, on the 6th October, 1863, he appeared in
person, and, evidence having been given in support of the application,
Carne contended that the proof of notice to him of his appointment
as overseer of the parish of Nash was not sufficient, but the jus-
tices decided that it was. Carne did not produce any evidence, but
contended that, as the parish of Nash had not at that time any
paupers chargeable to it, it was, unjust and unreasonable that the
ratepayers thereof should be called upon to pay anything towards
the expenses of the Union; that it was in the discretion of the jus-
tices whether payment of the contribution should or should not be
enforced; and urged upon them that, as the order for contribu-
tion was unjust, they should exercise that discretion and refuse to
enforce payment. The justices, addressing Carne, said: "We have
given the matter our best consideration and think you have shown
sufficient cause to justify us in refusing the warrant." They then,
at the request of Carne, added to their decision a statement that they
refused the warrant in the exercise of their discretion.
St. 2 & 3 Vict. c. 84, § 1: "In every case in which any contribution
by overseers or other officers of any parish of monies required by the
board of guardians or persons acting as guardians for such parish, or
for any Union which shall include such parish for the performance of
their duties, shall be in arrear, it shall be lawful for any two jus-
tices acting within the district wherein such parish shall be situate,
on application under the hand of the chairman or acting chairman
of such board, to summon the said overseer or other officers to
show cause, at a special sessions to be summoned for the purpose,
why such contribution has not been paid, and after hearing the
complaint preferred under the authority of such chairman or act-
ing chairman, and on behalf of such board, if the justices at such
sessions shall think fit, by warrant under their hands 'and seals to
cause the amount of the contribution so in arrear, together with
the costs occasioned by such arrear, to be levied and recovered from
the said overseers or other officers, or any of them, in like manner
as monies assessed for the relief of the poor may be levied and
recovered, and the amount of such arrear, together with the costs
as aforesaid, when levied and recovered, to be paid to the said board."
72
(Part 1
ADMINISTRATIVE POWER AND ACTION.
COCKBURN, C. J.? I do not intend in the slightest degree to en-
croach upon the doctrine that, where magistrates have a discretion-
ary power to decide whether they will do an act or not, this court
will not order them to do it when they liave exercised their discre-
tion upon the merits of the matter. But it is clear, upon the facts
of the present case, that they have not exercised that discretion which
in law they would have been justified in exercising. This extra-
parochial place, having been made part of a Union, became liable
by law to contribute its share to the general expenses of the Union;
and the magistrates, having that fact established before them, ought
to have issued their warrant. It is equally clear that the reason
why they did not do so was because they were invited to exercise
their discretion on a matter which was not within it. They proceed-
ed upon the ground that the annexation of this extra-parochial place
to the Union was unjust; in other words, that the operation of the
act of Parliament under which that was effected was unjust. Their
decision virtually amounts to this: "We know that upon all other
grounds we ought to issue our warrant, but we will take upon our-
selves to say that the law is unjust, and therefore, we will not issue it."
That is not a tenable ground on which this court can allow magis-
trates to decline to exercise their discretion according to law. It would
be an evil example if we held that they might thus arbitrarily and ille-
gally exercise their discretion; and therefore this rule must be made
absolute, with costs.s
ILLINOIS STATE BOARD OF DENTAL EXAMINERS v.
PEOPLE ex rel. COOPER.
(Supreme Court of Illinois, 1897. 123 Ill. 227, 13 N. E. 201.)
Appeal from appellate court, First district; L. C. Collins, Judge.
MAGRUDER, J. This is a petition for mandamus, in which the
relator prays that the Illinois state board of dental examiners may
be commanded to issue to him a license to practice dentistry and den-
tal surgery in the state of Illinois.
The statute under which the petition is filed, and which defines
the powers and prescribes the duties of the state board of dental
examiners, is "An act to secure the better education of practitioners
of dental surgery, and to regulate the practice of dentistry in the
state of Illinois," approved May 30, 1881, in force July 1, 1881.
Hurd's Rev. St. 1885, c. 91, p. 816. The sixth section of this act
is as follows: "Any and all persons who shall so desire, may appear
before said board at any of its regular meetings, and be examined
7 Part of this case is omitted.
8 See Martin v. Symonds, 4 Misc. Rep. 6, 23 N. Y. Supp. 689 (1893). See,
however, John Giles' Case, 2 Str. 891 (1731); Ex parte Persons, 1 Hill (N.
Y.) 655 (1841).
Ch.2)
73
ADMINISTRATIVE DISCRETION.
with reference to their knowledge and skill in dental surgery; and,
if the examination of any such person or persons shall prove satis-
factory to said board, the board of examiners shall issue to such
persons as they shall find from such examination to possess the
requisite qualifications a license to practice dentistry in accordance
with the provisions of this act. But said board shall, at all times,
issue a license to any regular graduate of any reputable dental col-
lege without examination, upon the payment, by such graduate, to
the said board, of a fee of one dollar. All licenses issued by said
board shall be signed by the members thereof, and be attested by
its president and secretary; and such license shall be prima facie
evidence of the right of the holder to practice dentistry in the state
of Illinois.” The first section of the act provides "that it shall be
unlawful for any person who is not at the time of the passage of
this act engaged in the practice of dentistry in this state, to com-
mence such practice, unless such person shall have received a diplo-
ma from the faculty of some reputable dental college duly author-
ized by the laws of this state, or of some other of the United States,
or by the laws of some foreign country, in which college or colleges
there was, at the time of the issue of such diploma, annually deliv-
ered a full course of lectures and instruction in dental surgery,” etc.
In People v. Dental Examiners, 110 Ill. 180, we held that the act
did not specifically define what was a reputable college, and that it
was left to the discretion and judgment of the board to determine
what was a reputable college. In that case the mandamus was re-
fused on the general ground that the writ will not lie to compel the
performance of acts or duties which necessarily call for the exercise
of judgment and discretion on the part of the officer or body at whose
hands their performance is required.
But if a discretionary power is exercised with manifest injustice,
the courts are not precluded from commanding its due exercise.
They will interfere, where it is clearly shown that the discretion is
abused. Such abuse of discretion will be controlled by mandamus.
A public officer or inferior tribunal may be guilty of so gross an
abuse of discretion, or such an evasion of positive duty as to amount
to a virtual refusal to perform the duty enjoined, or to act at all
in contemplation of law. In such a case mandamus will afford a
remedy. Tap. Mand. 19, 66; Wood, Mand. 64; Lynah v. Commis-
sioners, 2 McCord (S. C.) 170; People v. Perry, 13 Barb. (N. Y.)
206; Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 1791.
In Village of Glencoe v. People, 78 Ill. 382, we said: "The dis-
cretion vested in the council cannot be exercised arbitrarily, for the
gratification of feelings of malevolence, or for the attainment of
merely personal and selfish ends. It must be exercised for the pub-
lic good, and should be controlled by judgment, and not by passion
or prejudice. When a discretion is abused, and made to work in-
justice, it is admissible that it shall be controlled by mandamus."
74
(Part 1
ADMINISTRATIVE POWER AND ACTION.
In the present case the demurrer admits all the allegations of the
petition to be true. It will be necessary to examine those allega-
tions to see if they show any abuse of discretion on the part of the
board, or any unjust exercise of the discretionary power vested in it.
The petition alleges that the relator complied with the require-
ments of the statute, and with the rule of the board adopted in Sep-
tember, 1884. That rule is as follows: "Resolved, that after June,
1885, the Illinois state board of dental examiners will recognize as
reputable only such dental colleges as require, as a requisite for grad-
uation, attendance upon two full, regular courses of lectures and
practical instruction, which courses shall each be of not less than five
inonths' duration, and shall be held in separate years, with practical
instruction intervening between the courses. Such colleges must
also require a preliminary examination before admitting students
to matriculation, provided that no certificate from a high or normal
school, or other literary institution, is presented by the candidate.”
On November 4, 1884, the relator matriculated as a student in the
Chicago College of Dental Surgery, with which four of the five mem-
bers of the appellant board are alleged to be connected as instructors
or members of the faculty, and pursued his studies there during a
period of not less than five months in 1884 and 1885. During the
summer and fall of 1885 he received practical instruction in den-
tistry and dental surgery. On November 2, 1885, he matriculated as
a student in the Northwestern College of Dental Surgery, which gives
such lectures and instructions as are required by the above rule, and
attended therein as a student during one course of instruction of
not less than five months in the years 1885 and 1886. A diploma was
issued to him by the last-named college on April 3, 1886. On May
11, 1886, he presented this diploma to the state board of dental exam-
iners at a regular meeting thereof, and tendered his fee of one dollar,
and demanded a license. The board has refused to issue the license.
The petition avers that the board so refused to give him a license
through malice, because he left the Chicago College, in which four
members of the board are interested, and graduated at the North-
western College. It also avers that the two colleges are rivals for
the patronage of students; that the board is under the control of
the Chicago College, and determined to break down the Northwest-
ern College; and that the refusal to issue the license springs from a
determination to protect their own college from competition.
If these averments are true, the members of the state board are
abusing their discretion, and making an unjust use of it. They have
a right to decide whether the college at which an applicant for license
has graduated is reputable or not. But they must decide that ques-
tion upon just and fair principles. The discretion with which they are
vested was conferred upon them in the interests of the public, and
to protect the people from unskillful and uneducated practitioners
of dentistry. If four of the five members which compose the board
Ch.2)
75
ADMINISTRATIVE DISCRETION.
are instructors in a particular college, and if they are making use
of their power under the state law to build up their own institution,
and crush out its rival, they are acting from motives of self-interest,
and not in the interests of the public. It cannot be tolerated that li-
censes should be withheld for any such unworthy reasons. Inasmuch
as the board has elected to stand by the overruled demurrer to the
petition, we are bound to assume that the statements of the petition
are true.
Again, the relator says in his petition that after his application on
May 11, 1886, he wrote on May 25th to the secretary of the board
and inquired why a license was not issued to him. On May 26th
the secretary wrote in reply, returning the one dollar, and saying:
“The matter of issuing a license on your diploma from the North-
western College of Dental Surgery was referred to the national as-
sociation of dental examiners, which will meet in August. Until
their decision, I cannot issue any license.” It appears that the as-
sociation here referred to is composed, for the most part, of men liv-
ing outside of this state, and that its meeting "in August" was to
take place in the state of New York.
When a regular graduate of a dental college applies to the board
of examiners for a license, the only question for them to determine
is whether the college at which the applicant graduated is reputable
or not. The law clothes them, and no other body, with the power to
decide this question. They cannot delegate their discretionary power
to an organization beyond the limits of the state. By the letter of
the secretary the board declined to perform the duty imposed upon
it by the Illinois statute, and announced its intention of referring the
question of issuing a license to a foreign association.
After this announcement, upon being threatened with a mandamus
proceeding, the board, in an official communication, signed by its
secretary, promised the relator's attorney that, if he would wait a
reasonable time, it would call a meeting, and would issue to the re-
lator the license which he demanded. The meeting was held on June
25, 1886, but the license was refused. When the board promised to
issue a license, it must have been of the opinion that the relator was
entitled to it, and they could not have considered him entitled to it
unless they regarded the college at which he had graduated as rep-
utable.
It is claimed by counsel for appellee that the board, by adopting
the above rule, has exercised its discretion in determining what is a
reputable dental college; that any college, which insists upon such
requisites for graduation as the rule prescribes, must be recognized
by the board as a reputable college; and that as the Northwestern
College has brought itself within the requirements of the rule, the
board has no discretion about admitting its graduates. On the other
liand, counsel for appellant insists that while no colleges which fail
to comply with the rule will be regarded as reputable, yet the board
76
(Part 1
ADMINISTRATIVE POWER AND ACTION.
would have a right to demand other requisites than those specified
in the rule before deciding a college to be reputable. .
We are not prepared to hold that a dental college which requires
a preliminary examination before admitting students to matriculation,
and which requires students before graduation to attend upon two
full regular courses of lectures and practical instructions, each to
be of not less than five months' duration, and to be held in separate
years, with practical instructions intervening between the courses,
may not in other respects lack some of the elements which make such
an institution reputable. "Reputable,” according to Webster's defini-
tion, means "worthy of repute or distinction ;" "held in esteem;" "hon-
orable;" "praiseworthy." A college might have examinations and lec-
tures and instructions of such an inferior character, and under the
direction of such inferior instructors, that it would be unworthy of
praise and undeserving of esteem.
But the petition in this case alleges tliat the Northwestern College
has been recognized by the board of examiners as a reputable dental
college, and was so recognized when the relator presented his diplonia.
As the board did not refuse to grant the license on the ground
that the Northwestern College was not reputable, but refused such
license on other grounds, as stated in the petition, it will be presumed
that the members regarded that college as reputable. They had no
discretion as to any other matter than the character of the college
issuing the diploma, as to its being reputable or not reputable. When
that matter was decided and out of the way, their judicial or discre-
tionary power was exhausted. The duty to issue the license was
then a mere ininisterial one, and its performance could be enforced
by mandamus.
We think that the allegations of the petition, considered as a whole,
warranted the issuance of the writ of mandamus.
The judgment of the appellate court is affirmed.9
DODD et al. v. FRANCISCO et al.
(Supreme Court of New Jersey, 1902. 68 N. J. Law, 490, 53 Atl. 219.)
Certiorari to review proceedings of state board of health in reversing
action of local authorities, and granting permission to locate a ceme-
tery in the town of Bloomfield.
Dixon, J.10 * * * There remains only the fourth reason as-
signed for reversal—that the board based its conclusion on sanitary
grounds alone.
If this reason were supported by proper proof we would be inclined
to deem it fatal to the resolution under review. While the statute,
• Accord: State ex rel. Johnston v. Lutz, 136 Mo. 633, 38 S. W. 323 (1896).
10 Only part of the opinion is printed. For other part, see post, p. 200.
Ch.2)
77
ADMINISTRATIVE DISCRETION.
by requiring the concurrence of the municipal council and the local
board of health in the first instance, seems fairly to imply a division of
function between them, so that the board of health may pass upon sani-
tary questions only, and the municipal council upon the other ques-
tions pertinent to the matter in hand, it seems likewise, by confiding to
the state board of health the power of affirming or reversing the action
of either or both of these local bodies, to imply that all pertinent ques-
tions are open for consideration by the state board.
But we think the reason is not properly supported. What appears
is that one or perhaps more than one member thought that only sanitary
considerations should have weight; but it is at least doubtful whether
the board, then composed of eight members, adopted this view. As al-
ready stated, every suggestion which anybody desired to present was
entertained by the board, and we think the board is entitled to the pre-
sumption that every suggestion had its due influence. That pre-
sumption should stand until the board itself certifies to the contrary,
or until, a rule to obtain a certificate from the board proving ineffec-
tual, clear proof to the contrary is produced aliunde. See Newark v.
North Jersey Street Railway Co., 68 N. J. Law, 486, 53 Atl. 219.
We find no error, and the resolution of May 22, 1902, is affirmed,
with costs.11
.
In re SPARROW.
(Supreme Court of Pennsylvania, 1890. 138 Pa. 116, 20 Atl. 711.)
PAXSON, C. J. This was a writ of alternative mandamus directed
to Hon. S. S. Mehard, president judge of the court of quarter sessions
of Mercer county, requiring him to show cause why he should not
grant a license to sell liquor at retail to George L. Sparrow, the peti-
tioner. To the alternative writ, the learned judge makes a very full
return, setting forth, inter alia:
(a) "That the said applicant is a citizen of the United States, and
of this commonwealth, of temperate habits, and of good moral char-
acter."
(b) “That the National Hotel, for which said license was prayed,
was then and still is a good hotel, and necessary for the accommodation
of the public and the entertainment of strangers and travelers."
(c) “That the borough of Greenville, where the said hotel is located,
has a population of nearly 4,000 persons, and there was then and is
now no licensed house in said borough, or within 12 miles of it."
(d) “That remonstrances were filed against said application wherein
it was alleged that said license was not a matter of public necessity;
11 Statutory appeal from act involving exercise of discretion, see Hopson's
Appeal, 65 Conn. 140 (1894), post, p. 525 ; also, Keiser v. Lines, 57 Ind. 431
(1877); Miller v. Wade, 58 Ind. 91 (1877); Thompson v. Koch, 98 Ky. 400, 33
S. W. 96 (1895), post, p. 523.
78
(Part 1
ADMINISTRATIVE POWER AND ACTION.
that said license was not necessary for the accommodation of the pub-
lic, and the entertainment of strangers and travelers; and that the
granting of said license would be detrimental to the public good, and
an injury instead of a benefit to that community."
(e) “That these remonstrances were signed by 870 citizens of said
borough of Greenville, of whom 217 were males, and 653 were females,
and all of whom were above the age of 21 years.”
(f) “That additional petitions, asking that said license be granted,
were likewise filed, wherein it was alleged that such license was neces-
sary for the accommodation of the public, and the entertainment of
strangers and travelers; and that the applicant was a fit person to
whom to grant such license. That said additional petitions were signed
by 592 citizens of said borough, of whom 471 were males and 121 fe-
males, all of whom were above the age of 21 years."
(g) "That thereupon your respondent, representing the court of
quarter sessions of the peace, in and for the county of Mercer, having
due regard to the number and character of the petitioners for and
against said application, considered that the clear preponderance was
in favor of the remonstrants and against the petitioners; and there-
fore, determining that the license prayed for was not necessary for the
accommodation of the public and entertainment of strangers or travel-
ers, refused to grant the same."
(h) “The respondent respectfully states that he is of opinion that,
notwithstanding all the facts favorable to complainant's application
above set forth, the preponderance of the remonstrants against, over
the petitioners for, said license, was of itself a sufficient ground for
concluding that the same was not a matter of public necessity, and
therefore a just and lawful ground for refusing to grant it; and that
this opinion is based upon our acts of assembly as interpreted by your
honorable court."
It would have been sufficient for the learned judge below to have re-
turned that he had considered the petitions and the remonstrances,
and that, in the exercise of his discretion, he had refused the license.
His return is very full, however, and he has placed upon the record
all the facts bearing upon this application. It presents a case differ-
ing in many respects from any we have had before us, and we may
assume that he made such return in order to enable us to apply the
law to the peculiar facts of the case.
We have decided repeatedly, in language too plain to be misunder-
stood, that the granting of a license to sell liquor by retail rests in the
sound discretion of the court below. In Reed's Appeal, 114 Pa. 452, 6
Atl. 910, we said: "The action of the court in granting the license
complained of is something that we cannot review, that being a matter
of discretion, though we are satisfied that there was a misapprehension
of the act of 220 March, 1867.” In the late case of In re Rauden-
busch, 120 Pa. 328, 14 Atl. 148, in alluding to this discretion, we said:
"It has been exercised by that court [quarter sessions] time out of
Ch.2)
79
ADMINISTRATIVE DISCRETION.
mind, and the power has again and again been affirmed by this court.
This discretion, however, is a legal discretion, to be exercised wisely,
and not arbitrarily. A judge who refuses all applications for license,
unless for cause shown, errs as widely as the judge who grants all ap-
plications. In either case, it is not the exercise of judicial discretion,
but of arbitrary power. The law of the land has decided that licenses
shall be granted to some extent, and has imposed the duty upon the
court of ascertaining the instances in which the license shall be granted.
In order to perform this duty properly, the act of assembly has pro-
vided ineans by which the conscience of the court may be informed as
to the facts. It may hear petitions, remonstrances, or witnesses, and
we have no doubt the court may, in some instances, act of its own
knowledge." In Schlaudecker v. Marshall, 72 Pa. 200, Mr. Justice Ag-
new, in referring to the same subject, said: "Whether any or all li-
censes should be granted, is a legislative, not a judicial, question.
Courts sit to administer the law fairly, as it is given to them, and not
to make or repeal it. The law of the land has determined that licenses
shall exist, and has imposed upon the court the duty of ascertaining the
proper instances in which the license shall be granted, and therefore
has given it to the court to decide upon each case as it arises in due
course of law. The act of deciding is judicial, and not arbitrary or
willful. The discretion vested in the court is, therefore, a sound ju-
dicial discretion; and, to be a rightful judgment, it must be exercised
in the particular case, and upon the facts and circumstances, before the
court, and after they have been heard and duly considered-in other
words, to be exercised upon the merits of each case, according to the
rule given by the act of assembly. To say that I will grant no license
to any one, or that I will grant it to every one, is not to decide judi-
cially on the merits of the case, but to determine beforehand without a
hearing or else to disregard what has been heard. It is to be deter-
mined not according to law, but outside of law, and it is not a legal
judgment, but the exercise of an arbitrary will."
I have given these copious extracts from the opinions of this court
to emphasize the fact that the law not only gives to the judges of the
court of quarter sessions the discretion of granting or refusing li-
censes, but also requires such discretion to be exercised in a sound
judicial manner, and also casts upon them the responsibility. That re-
sponsibility they cannot evade by throwing it upon the remonstrants
or upon this court. To refuse a license, because, in the mind of the
judge, there is a belief that licenses should not be granted at all, as a
matter of policy, is to make law, not to administer it. The judge
to whom an application is made may inform his conscience in the man-
ner before pointed out. He inay hear remonstrances, and it is his duty
to give them due weight, but, after all, the responsibility rests with
him, and he must exercise his own judgment and discretion in the light
which such aids have furnished. In the case in hand, there appears to
have been an unusual effort, both for and against the application.
80
(Part 1
ADMINISTRATIVE POWER AND ACTION.
The number of remonstrants considerably exceeds that of the peti-
tioners. This is all very well so far as it is addressed to the discretion
of the court. The result is not conclusive upon him. Otherwise, we
would have local option without the sanction of an act of assembly, yet
enforced by the judiciary. In the case in hand, the learned judge has
undoubtedly attached great weight to the remonstrances. He does not
appear, liowever, to have wholly substituted the judgment of the re-
monstrants for his own. The most that can be said is that they were
of sufficient weight to convince him that the license was not a matter
of public necessity. In the view we take of the case, this was not an
abuse of discretion. We are not called upon to say whether it was
exercised wisely.
Mandamus refused.
In re GROSS' LICENSE.
(Supreme Court of Pennsylvania, 1894. 161 Pa. 344, 29 Atl. 25.)
Appeal from court of quarter sessions, Luzerne county.
Application by Herman Gross for wholesale liquor license. From a
decree refusing it, applicant appeals. Affirmed.
DEAN, J. This is the decree from which is brought this appeal:
"Now, March 1, 1894, after hearing, sureties on the within bond are
approved, and the license, as prayed for, is refused.” Counsel for ap-
pellant, to sustain his appeal, argues that as there was no denial of the
necessity for the license, and no allegation that the applicant was not a
fit person, and as it appeared from the decree the bond and sureties
were approved, the inference necessarily is that the refusal was not
the exercise of discretion, but the result of arbitrary will.
Such inference is not warranted by the facts. The sixth section of
the act of June 9, 1891 (P. L. 259), providing for licenses to whole-
sale dealers in liquors, says: “The court of quarter sessions shall hear
petitions from residents of the county, in addition to that of the ap-
plicant, in favor of and remonstrance against the application for such
license, and in all cases shall refuse the same whenever, in the opinion
of said court, having due regard to the number and character of the
petitioners for and against such application, such license is not neces-
sary for the accommodation of the public, or that the applicant or ap-
plicants is or are not fit persons to whom such licenses should be
granted." This section must be read in connection with the second
of the same act, which directs the court to fix, by rule or standing or-
der, a time at which all applications for and objections to licenses
shall be heard by evidence, petition, remonstrance, or counsel. The
two sections enjoin upon the court the duty of hearing and considering.
If there be nothing on the records of the court but the averments in
the petition, these, at the time fixed, must be heard and considered. The
court may hear oral testimony or the arguments of counsel on either
+
Ch. 2)
81
ADMINISTRATIVE DISCRETION.
side. It may, of its own knowledge of the unfitness of the applicant, or
of his failure in other material particulars to meet the requirements of
the law, refuse the application, just as it may, of its own knowledge,
approve, for sufficiency, or reject, for insufficiency, the sureties on the
bond. The exercise of judicial discretion by the court is commanded
by the statute. This being so, how far this court will go in reviewing
the decrees of the quarter sessions, notwithstanding repeated deci-
sions, seems still to be in doubt. Therefore, we again say:
1. The discretion must be exercised in a lawful manner. The appli-
cant has a right to be heard, and so have objectors. A decree without
hearing, or opportunity for hearing, at a time fixed by rule or standing
order, as the law directs, would be manifestly illegal and on certiorari,
would be set aside.
2. If the court has, in a lawful manner, performed the duty im-
posed upon it, it is not our business to inquire whether it has made a
mistake in its conclusions of fact. Whether the same facts induce in
our minds the same belief as in that of the court below, as to the
character of the applicant, or other material averments, is wholly im-
material. It is the discretion of the court of quarter sessions, not
ours, that the law requires.
3. A decree made arbitrarily, or in violation of law, it is our plain
duty to set aside. For example, if a judge should refuse a license be-
cause, in his opinion, the law authorizing licenses is a bad law, or if
he should grant all licenses because he believed the law wrong, as
tending to confer a privilege on a special few, in either case there
would be no exercise of judicial discretion. Both would be the mere
despotic assertion of arbitrary will by one in power,—that sort of law-
lessness which is least excusable, and excites most indignation.
4. If the record shows the decree was had after hearing at a time
fixed by rule or standing order, the presumption is that the decree is
judicial, and not arbitrary; and this presumption is not rebutted by
an argument from evidence that the court ought to have reached a
different conclusion. In the case before us the record shows the li-
cense was refused after hearing. The act is an official one, per-
formed by a public officer in the exercise of the functions of his
office. The presumption, in all such cases, is that the officer. performed
his duty according to law. He is not bound to set out legal reasons for
his action. He is only bound to have them.
In Re Johnson's Appeal, 156 Pa. 322, 26 Atl. 1066, relied on by ap-
pellant, the decree showed no hearing, nor did the record anywhere
indicate that the decree was founded on a hearing, or that any oppor-
tunity to be heard had been afforded the applicant. The decree was
reversed, and the case sent back, that it might be heard and decided
as the law directs. While, in these cases, the justices of the quarter
sessions do not always set out on the record the reasons for their de-
crees, it is going very far to assume from that fact alone, as is done in
FR. ADM. LAW.-6
82:
(Part 1
ADMINISTRATIVE POWER AND ACTION.
the argument of this case, that they are made without lawful reasons.
We can comprehend how a man's conscience may condemn as wrong a
law of the land. But that sort of a conscience, so tender as to with-
hold approval of a law, yet which voluntarily takes an oath to ad-
minister it according to its true intent and meaning, and then deliber-
ately violates it, is beyond our comprehension. We will not assume,
without incontrovertible evidence, of record, that there is such an one.
The decree is affirmed, and the appeal is dismissed, at cost of ap-
pellant, 12
SECTION 10.-_VALIDITY OF UNREGULATED DISCRETION
WILSON v. EUREKA CITY.
(Supreme Court of United States, 1899. 173 U. S. 32, 19 Sup. Ct. 317, 43 L.
Ed. 603.)
In error to the Supreme Court of the state of Utah.
Section 12 of Ordinance No. 10 of Eureka City, Utah, provided as
follows: "No person shall move any building or frame of any build-
ing, into or upon any of the public streets, lots or squares of the city,
or cause the same to be upon, or otherwise to obstruct the free pas-
sage of the streets, without the written permission of the mayor, or
president of the city council, or in their absence a councilor. A vio-
lation of this section shall on conviction, subject the offender to a
fine of not to exceed twenty-five dollars.'
The plaintiff in error was tried for a violation of the ordinance, in
the justice's court of the city. He was convicted and sentenced to pay
a fine of $25. He appealed to the district court of the First judicial
district of the territory of Utah.
On the admission of Utah into the Union, the case was transferred
to the Fifth district court of Juab county, and there tried on the 24th
of October, 1896, by the court without a jury, by consent of the par-
ties.
Section 12, supra, was offered and admitted in evidence. Plaintiff in
error objected to it, on the ground that it was repugnant to section 1
of article 14 of the Constitution of the United States, in that it dele-
gated an authority to the mayor of the city, or, in his absence, to a
councilor.
There was also introduced in evidence an ordinance establishing fire
limits within the city, providing that no wooden buildings should be
erected within such limits except by the permission of the committee
12 See, also, In re Licenses, 4 Luz. Leg. Reg. (Pa.) 527 (1888). And see
cases under mandamus, § 53.
Ch.2)
83
ADMINISTRATIVE DISCRETION.
*
on building, and providing further for the alteration and repair of
wooden buildings already erected. *
The evidence showed that the plaintiff in error was the owner of a
wooden building of the dimensions of 20 by 16 feet, which was used as
a dwelling house. It was constructed prior to the enactment of the
ordinances above mentioned. The evidence further showed that plain-
tiff in error applied to the mayor for permission to move the building
along and across Main street in the city to another place within the
fire limits. The mayor refused the permission, stating that, if the de-
sire was to move it outside of the fire limits, permission would be
granted. Notwithstanding the refusal, the plaintiff in error moved
the building, using blocks and tackle and rollers, and, in doing so, oc-
cupied the time between 11 a. m. and 3 p. m. At the place where the
building stood originally, the street was 50 feet from the houses on
one side to those on the other, part of the space being occupied by
sidewalks, and the balance by the traveled highway. The distance of
removal was 206 feet along and across Main street. Eureka City was
and is a mining town, and had and has a population of about 2,000. It
was admitted that the building was moved with reasonable diligence.
The plaintiff in error was again convicted. From the judgment of
conviction he appealed to the Supreme Court of the state, which court
affirmed the judgment (15 Utah, 53, 48 Pac. 41; 15 Utalı, 67, 48
Pac. 150, 62 Am. St. Rep. 904), and to the judgment of affirmance
this writ of error is directed.
Eureka City has no special charter, but was incorporated under the
general incorporation act of March 8, 1888, and among the powers
conferred by it on city councils are the following:
“(10) To regulate the use of streets, alleys, avenues, sidewalks, cross
walks, parks and public grounds.
"(11) To prevent and remove obstructions and encroachments upon
the same."
The error assigned is that the ordinance is repugnant to the four-
teenth amendment of the Constitution of the United States, because
"thereby the citizen is deprived of his property without due process of
law," and "the citizen is thereby denied the equal protection of the
law."
Mr. Justice MCKENNA, after stating the facts in the foregoing lan-
guage, delivered the opinion of the court.
Whether the provisions of the charter enabled the council to delegate
any power to the mayor is not within our competency to decide. That
is necessarily a state question, and we are confined to a consideration of
whether the power conferred does or does not violate the Constitution
of the United States.
It is contended that it does, because the ordinance commits the rights
of plaintiff in error to the unrestrained discretion of a single individual,
and thereby, it is claimed, removes them from the domain of law. To
support the contention, the following cases are cited: In re Frazee, 63
84
(Part 1
ADMINISTRATIVE POWER AND ACTION.
Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; 13 State v. Dering, 84
Wis. 585, 54 N. W. 1104, 19 L. R. A. 858, 36 Am. St. Rep. 948; An-
derson v. City of Wellington, 40 Kan. 173, 19 Pac, 719, 2 L. R. A.
110, 10 Am. St. Rep. 175; Mayor, etc., v. Radecke, 49 Md. 217, 33
Am. Rep. 239; City of Chicago v. Trotter, 136 Ill. 430, 26 N. E.
359.1
With the exception of Mayor, etc., v. Radecke, these cases passed
on the validity of city ordinances prohibiting persons parading streets
with banners, musical instruments, etc., without first obtaining per-
mission of the mayor or common council or police department. Fu-
neral and military processions were excepted, although in some respects
they were subjected to regulation. This discrimination was made the
basis of the decision in State v. Dering; but the other cases seem
to have proceeded upon the principle that the right of persons to
assemble and parade was a well-established and inherent right, which
could be regulated, but not prohibited or made dependent upon any
officer or officers, and that its regulation inust be by well-defined con-
ditions.
This view. has not been entertained by other courts, or has not been
extended to other instances of administration. The cases were re-
viewed by Mr. Justice McFarland, of the Supreme Court of California,
in Re Flaherty, 105 Cal. 558, 38 Pac. 981, 27 L. R. A. 529, in which an
ordinance which prohibited the beating of drums on the streets of
one of the towns of that state, "without special permit in writing so to
do first had and obtained from the president of the board of trustees,"
was passed on and sustained. Summarizing the cases, the learned
justice said:
"Statutes and ordinances have been sustained prohibiting awnings
without the consent of the mayor and aldermen (Pedrick v. Bailey, 12
Gray (Mass.) 161); forbidding orations, harangues, etc., in a park
without the prior consent of the park commissioners (Com, v. Abra-
hams, 156 Mass. 57, 30 N. E. 79), or upon the common or other
grounds, except by the permission of the city government and com-
mittee (Com, v. Davis, 140 Mass. 485, 4 N. E. 577); 'beating any
drum or tambourine, or making any noise with any instrument for
any purpose whatever, without written permission of the president of
the village,' on any street or sidewalk (Vance v. Hadfield, 51 Hun,
620, 643, 4 N. Y. Supp. 112); giving the right to manufacturers and
others to ring bells and blow whistles in such manner and at such
hours as the board of aldermen or selectmen may in writing designate
(Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27); prohibiting the
erecting or repairing of a wooden building without the permission
13 See, however, Love v. Judge of Recorder's Court, 128 Mich. 545, 87 N.
W. 785, 55 L. R. A. 618 (1901).
14 See, also, Cicero Lumber Co. V. Cicero, 176 Ill. I, 51 N. E. 758, 42 L.
R. A. 696, 68 Am. St. Rep. 155 (1898); Noel v. People, 187 Ill. 587, 58 N. E
616, 52 L. R. A. 287, 79 Am. St. Rep. 238 (1900).
Ch.2)
85
ADMINISTRATIVE DISCRETION.
of the board of aldermen (Hine v. City of New Haven, 40 Conn.
478); authorizing harbor masters to station vessels and to assign
to each its place (Vanderbilt v. Adams, vy Cow. [N. Y.) 349); for-
bidding the occupancy of a place on the street for a stand without
the permission of the clerk of Faneuil Hall Market (In re Nightingale
11 Pick. [Mass.] 168); forbidding the keeping of swine without a per-
mit in writing from the board of health (Quincy v. Kennard, 151
* Mass. 563, 24 N. E. 860); forbidding the erection of any kind of a
building without a permit from the commissioners of the town through
their clerk (Commissioners v. Covey, 74 Md. 262 [22 Atl. 266]); for-
bidding any person from remaining within the limits of the market
more than twenty minutes unless permitted so to do by the superii
tendent or his deputy (Com. v. Brooks, 109 Mass. 355)."
In all of these cases the discretion upon which the right depended
was not that of a single individual. It was not in all of the cases cited
by plaintiff in error, nor was their principle based on that. It was
based on the necessity of the regulation of rights by uniform and gen-
eral laws-a necessity which is no better observed by a discretion in a
board of aldermen or council of a city than in a mayor; and the cases,
therefore, are authority against the contention of plaintiff in error.
Besides, it is opposed by Davis v. Com., 167 U. S. 43, 17 Sup. Ct. 731,
42 L.Ed. 71.
Davis was convicted of violating an ordinance of the city of Boston
by making a public address on the "Conmon," without obtaining a per-
mit from the mayor. The conviction was sustained by the Supreme
Judicial Court of the commonwealth (162 Mass. 510, 39 N. E. 113,
26 L. R. A. 712, 44 Am. St. Rep. 389), and then brought here for re-
view.
The ordinance was objected to, as that in the case at bar is objected
to, because it was "in conflict with the Constitution of the United
States and the first section of the fourteenth amendment thereof." The
ordinance was sustained.
It follows from these views that the judgment of the Supreme
Court of Utah should be, and it is, affirmed.1
15
15 See, also, Gundling v. Chicago, 176 Ill. 340, 52 N. E. 44, 48 L. R. A. 230
(1898) affirmed 177 U. S. 183, 20 Sup. Ot. 633, 44 L. Ed. 725 (1900); Fischer
V. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018 (1904); Freund, Po-
lice Power, $$ 639–655.
As to judicial control of administrative discretion in continental jurispru-
dence, see Grünhut's Zeitschrift für Privat- u. Öffentliches Recht, vol. 18,
pp. 148–163 ; Id., vol. 19, pp. 327-411; Laun, Freies Ermessen, 1910.
86
(Part 1
ADMINISTRATIVE POWER AND ACTION.
CHAPTER III
1
FORM AND PROOF OF OFFICIAL ACTS
SECTION 11.-ACTION OF OFFICIAL BODIES—THE BODY
MUST BE CONVENED
PENNSYLVANIA R. CO. v. MONTGOMERY COUNTY PASS.
RY. CO.
(Supreme Court of Pennsylvania, 1895. 167 Pa. 62, 31 Atl. 468, 27. L. R. A.
766, 46 Am. St. Rep. 659.)
2
*
WILLIAMS, J.
But in this connection another interesting
question suggests itself. How is the assent of "the local authorities” to
be obtained in any given case, and what is the proper evidence that
it has been given? The township books, in the custody of the town
clerk, are the records of the township, and should afford evidence of
the action taken by the supervisors in all matters of public importance.
A paper in the pocket of a contractor or of some officer of a corpora-
tion is not the proper evidence of action by the township or the school
district. The action needed is not that of the individuals who compose
the board, but of the official body. Thus it was held that a contract
signed by the members of the school board separately did not bind the
district. The best evidence of their official action was their minutes
kept by the secretary. Wachob v. School Dist., 8 Phila. 568. For the
same reason a contract signed by the president and secretary was held
to be invalid. It had not been acted upon by the board when in ses-
sion. School Dist. v. Padden, 89 Pa. 395.
One supervisor may bind the township by an act that is ministerial in
its character. Dull v. Ridgway, 9 Pa. 272; Pottsville Borough y. Nor-
wegian Tp., 14 Pa. 543. Not so, however, when the act is one that
requires deliberation and the exercise of judgment. Cooper v. Lam-
peter Tp., 8 Watts, 125; Union Tp. v. Gibboney, 94 Pa. 534; Som-
1As to whether official declaratory acts must be in writing, see Hoke v.
Field, 10 Bush (Ky.) 144, 19 Am. Rep. 58 (1873); People v. Murray, 70 N.
Y. 521 (1977); Wigmore, on Evidence, § 2427.
As to requirement of personal action of officer, see Chapman v. Inhabitants
of Limerick, 56 Me. 390 (1868); Wilcox V. M'Connel, 13 Pet. 498, 512, 10 Li
Ed. 264 (1839); Runkle v. U. S., 122 U. S. 543, 7 Sup. Ct. 1141, 30 L. Ed. 1167
(1887).
As to place of action, see Lynde v. Winnebago Co., 16 Wall. 6, 21 L. Ed.
272 (1872).
2 Only a part of the opinion of Williams, J., is printed.
Ch. 3)
87
FORM AND PROOF OF OFFICIAL ACTS.
erset Tp. v. Parson, 105 Pa. 360. In such cases the supervisors must
be together, and their action must be taken in their official character,
and should appear upon the township book kept by the town clerk.
If not so taken, it does not bind the township, and has no validity
whatever. The supervisors should consider and deliberate upon any
application made to them for leave to occupy any of the township roads
with a street railway. If they decide to grant the application upon
certain terms and conditions, as to the manner and extent of the occu-
pancy permitted and the extent of repairs to be required, these terms
should appear in the record of the meeting, as well as the consent;
and a contract that does not rest on such official action, properly taken
by the proper officers, is utterly worthless.
*
* 3
SECTION 12.-SAME-ACT OF MAJORITY BINDS BODY
GRINDLEY et al. v. BARKER et al.
(Court of Common Pleas, 1798. 1 Bos. & P. 229.)
EYRE, C. J.4 The true question in this case lies in a very narrow
compass. It is this: What is the operation in law of a judgment of
four out of six triers, six being the number constituted to be the
triers, and the six being assembled to inquire and try; whether it is to
be deemed the finding and judgment of the body, or merely the finding
and judgment of the four individuals who concurred? If it is the mere
finding of the four who concurred, then this leather is not found in-
sufficient, but if the operation of law on the finding of four, who are
the majority of the body, duly assembled, be that their judgment is the
judgment of the whole, and therefore the judgment of the triers, then
the leather must be taken to have been found insufficient, and the de-
fendants are justified. On the first argument I thought this question
3 "Without formal action by the [state] board [of health], directing a
nuisance, or the cause of any special disease or mortality, to be abated and
removed, its secretary can neither speak nor act for it in ordering the abate-
ment and removal of the nuisance, and the disregard of an order so given is
not indictable." Com. v. Yost, 197 Pa. 171, 46 Atl. 845 (1900).
See Chicago & N. W. R. Co. v. Dey, 35 Fed. 866, 883, 1 L. R. A. 744 (1888).
“An official board acts through its secretary. This complainant with others
addressed an official communication to the board. He received an answer in
the regular way-one signed by the secretary as secretary. Equity and good
faith forbid going behind such official notification."
So, under circumstances, acquiescense and assent may be evidenced by in-
action or conduct; i. e., informally. Bartlett v. Boston, 182 Mass. 460, 65
N. E. 827 (1903); State v. Rohart, 83 Minn. 257, 86 N. W. 93, 333, 54 L. R.
A. 947 (1901).
4 Only a portion of the opinion of Eyre, C. J., is printed.
88
(Part 1
ADMINISTRATIVE POWER AND ACTION.
would turn on two general heads of inquiry: First, what the gen-
eral rule of law was in the case of bodies of men intrusted with powers
of this nature; whether they must all concur, or whether the decision
of the majority would bind the whole? Secondly, supposing the latter
to be the general rule, whether that general rule is to be controlled by
the intent of the legislature as collected from the scope and provisions
of this act?
With respect to the first question, I think it is now pretty well es-
tablished that where a number of persons are intrusted with powers
not of mere private confidence, but in some respects of a general na-
ture, and all of them are regularly assembled, the majority will con-
clude the minority, and their act will be the act of the whole. The
cases of corporations go further. There it is not necessary that the
whole number should meet; it is enough if notice be given; and a
majority, or a lesser number, according as the charter may be, may
meet, and when they have met they become just as competent to de-
cide as if the whole had met.5 With a view to this case, those who
have met resemble the six triers who have authority to decide: and
then a question arises, how they may act when they have met. The
case in Atkyns @ shows the opinion of a great judge, Lord Hard-
wicke, who was much conversant with this subject in one part of his
judicial life, that the majority of persons assembled will conclude the
minority, and an act done by them will be the act of the whole body.
And that part of the law of corporations applies to this case; that
with regard to powers not merely private, which are to be exercised
by many persons, provided a sufficient number be assembled, the act
of the majority concludes the minority, and becomes the act of the
whole body. * If that be so, the argument drawn from the
word “triers” being used generally, in the thirty-third and forty-
sixth sections, will not stand much in our way; because the judgmen
of four triers in this case is the judgment of all, as much as if all had
concurred. There is nothing, then, in the general rule of law to pre-
vent this finding from being held good. *
6 On this point see Throop, Public Officers, 112.
bAttorney General y. Davy, 2 Atk. 212 (1741).
7 The discussion of the second question is omitted.
"It cannot be disputed that, wherever a certain number are incorporated,
a major part of them may do any corporate act; so if all are summoned,
and part appear, a major part of those that appear may do a corporate
act, though nothing be mentioned in the charter of the major part.” Lord
Hardwicke, in Attorney General v. Davy, 2 Atk. 212 (1741).
"It is a well-established rule that, in order to constitute a good corporate
assembly in the case of a corporation consisting of a definite and an indefinite
body, there must be present a majority of that number of which the definite
body consists, although, it is not necessary that there should be a majority
of the indefinite body." Blacket v. Blizard, 9 Barn. & C. 851, 860 (1829).
See, also, Martin v. Lemon, 26 Conn. 192 (1857).
“The rule of the common law, which is now declared by statute, that
where an authority is to be exercised by more than one officer they must all
concur in its exercise, or all ineet and consult and a majority agree to the
act, is subject to the necessary qualification that, if one is notified to attend
Ch. 3)
89
FORM AND PROOF OF OFFICIAL ACTS.
SECTION 13.-SAME-PRESUMPTION THAT ALL MET OR
WERE NOTIFIED
**
MCCOY v. CURTICE.
(Supreme Court of Judicature of New York, 1832. 9 Wend. 17, 24 Am. Dec.
113.)
Trover. Defendant justified as collector under a warrant signed
by two trustees of a school district.
SUTHERLAND, J.8 * The next objection was to the intro-
duction of the warrant, on the ground that it was signed only by two
trustees. I am inclined to think the objection was properly overruled
Where power is delegated to two or more individuals for a mere
private purpose, in no respect affecting the public it is necessary that
all should join in the execution of it. Thus arbitrators must all unite
in an award. But in matters of a public concern, if all are present,
the majority can act, and their acts will be the acts of the whole. 1
Bos. & Pull. 236; 3 T. R. 592; Green y. Miller, 6 Johns. 41, 5 Am.
Dec. 184. There can be no doubt that a contract made by all of the
trustees and signed by two would be binding, or that two could con-
tract against the will of the third, if he was duly notified or consulted
and refused to act. The convenient dispatch of public business re-
quires that it should be so. Ex parte Rogers, 7 Cow. 526, and cases
there cited.
The objection here was simply that the warrant was not signed by
all the trustees. There is nothing to show, or from which it is to be
inferred, that all the trustees did not concur and act in the previous
proceedings, and assent to the issuing of the warrant. In Yates v.
Russell, 17 Johns. 468, which was a writ of error upon a judgment
entered upon the report of referees, in an action not referable under
the statute, the report was signed by only two of the referees, and one
of the errors relied upon was that it did not appear that all the ref-
erees met and heard the parties. It was held by Chancellor Kent, who
delivered the opinion in the Court of Errors, that it was to be presum-
ed that all the referees met, as nothing appeared to the contrary; and
if they did not, the objection should have been taken in the court
below. That principle seems to be applicable to this case and disposes
of this point.
Judgment affirmed, with double costs.
and refuses, it is the same as if he had attended and dissented from the
act.” Horton v. Garrison, 23 Barb. (N. Y.) 176, 179 (1856).
See, also, Williams v. School District, 21 Pick. (Mass.) 75, 82, 32 Am. Dec.
243 (1838), “if there be a quorum.”
See Wilson v. Alabama Gt. Southern R. Co., 77 Miss. 714, 28 South. 567, 52
L. R. A. 357, 78 Am. St. Rep. 543 (1900).
8 For first part of opinion, see post, p. 107.
90
(Part 1
ADMINISTRATIVE POWER AND ACTION.
GALBRAITH v. LITTIECH.
(Supreme Court of Illinois, 1874. 73 Ill. 209.)
Mr. Chief Justice WALKER delivered the opinion of the court.
This suit was brought by appellee, as supervisor of roads in Hen-
derson county, before a justice of the peace, to recover a penalty
from appellant for obstructing a public highway. A trial was had
before the justice, and resulted in a recovery of one dollar and
costs. An appeal was prosecuted to the circuit court, and a change
of venue was had from that county to the Mercer circuit court. A
trial was there had, resulting as it did before the justice of the peace.
A motion for a new trial was entered, but overruled by the court,
and the case is appealed to this court.
All the grounds urged for a new trial are of the most technical char-
acter. It is first insisted that but two of the viewers appointed by the
county commissioners acted in laying out the road, and it is there-
fore illegal. Appellant concedes that, had all acted, the concurrence
of the two would have answered the requirements of the law. Wheth-
er all three joined in the report, still we must presume that all three
did act, although but two signed the report.
In the cases of Nealy v. Brown, 1 Gilman, 10, Ferris v. Ward, 4
Gilman, 499, and Dumoss v. Francis, 15 Ill. 543, it was held that on
presenting the order of the county commissioners establishing the
road, it would be presumed, until disproved, that all the antecedent
steps required by the statute had been taken. In this case the order es-
tablishing the road was introduced, and also the report signed by two
of the viewers. It did not state that the other failed or refused to act
with them, and, failing to state that fact, we must presume that he
was present and so acted-nor can the presumption as to that fact be
overcome by parol evidence. We will presume that the county com-
missioners heard evidence, that the other commissioner acted, but fail-
ed to join in the report, and the presumption is not contradicted by
the record. This is a complete answer to that objection. *
* * 9
9 The rest of the opinion is omitted.
See Wigmore on Evidence, $ 2534.
But see Wilson v. Alabama Great Southern Railroad Company, 77 Miss. 714,
28 South. 567, 52 L. R. A. 357, 78 Am. St. Rep. 543 (1900): "The presence
of all three members of the executive committee of the state board of health
was necessary to a valid order on September 15, 1897, when the order in
question was made. Laws 1894, p. 33, c. 38. This is made clear as the legis-
lative purpose by the amendment (Laws 1898, p. 93, § 2), providing, for the
first time, that 'the presence of two members of the executive committee'
would do thereafter. The order in question was made by only two members;
it not being shown that three were present.
Had three been pres-
ent, and two made the order, this objection would have been obviated."
See, also, 1 Rev. St. N. Y. (1st Ed.) pt. 1, c. 16, tit. 1, § 125: "Any two
commissioners of highways of any town may make any order, in execution
of the powers conferred in this title; provided it shall appear in the order.
filed by them that all the commissioners of highways of the town met and
Ch.3)
91
FORM AND PROOF OF OFFICIAL ACTS.
SECTION 14.-EVIDENCE OF OFFICIAL ACTION-ON
DIRECT ATTACK
GILBERT v. COLUMBIA TURNPIKE CO.
(Supreme Court of Judicature of New York, 1802. 3 Johns. Cas. 107.)
Application by E. Gilbert to set aside an inquisition found by three
cominissioners appointed under the second section of the act amending
the act establishing the Colunibia Turnpike Company, passed March
28, 1800.
PER CURIAM. This is the case of a special power granted by stat-
ute, and affecting the property of individuals, which ought to be strict-
ly pursued, and appear to be pursued, on the face of the proceedings.
4 Burr. 2244; Cowp. 26; 1 Burr. 377; 7 Term Rep. 363. This is
an established rule, and it is important that it should be maintained,
especially in cases which so materially interfere with private rights. It
does not appear that any disagreement existed between the parties,
or that in consequence of any disagreement the company applied to a
judge, both of which were requisite, to authorize the appointment
of commissioners. The disagreement, and consequent application,
were the foundation of the whole proceedings, and without them the
judge could have no jurisdiction in the case. As they do not appear,
we are not to intend they existed.
The judge, in the case before us, is required by the act to have no
interest in the road; and it is also required that the commissioners
shall not be inhabitants of any of the towns through which the road
shall pass. Neither of these points, which are essential to an impar-
tial result, appear to have been complied with, and both are indispen-
sable.
A notice to the owners, it is true, is alleged to have been given, but
it is not stated to have been in writing. A notice, in legal proceed-
ings, means a written notice, and we think the act itself, in this in-
stance, contemplates such a notice. In certain cases, it directs the no-
tice to be left at the dwelling house of the party. This must intend
a written notice.
On these grounds without determining the other objections, we are
clearly of opinion that the inquisition ought to be set aside.
deliberated on the subject embraced in such order, or were duly notified to
attend a meeting of the commissioners for the purpose of deliberating there.
on."
See People v. Williams, 36 N. Y. 441 (1867).
:
92
(Part 1
ADMINISTRATIVE POWER AND ACTION.
o
+
HARBAUGH et al. v. MARTIN.
(Supreme Court of Michigan, 1874. 30 Mich. 234.)
COOLEY, J.10 Certiorari is sued out in this case to reverse the pro-
ceedings of the drain commissioner in assessing upon the plaintiffs in
error and others the expense of deepening and widening the Prairie
Ronde ditch, in the township of Springwells. The proceedings pur-
port to have been had under chapter 47, p. 570, of the Compiled Laws
of 1871, the fourth section of which requires the county drain com-
missioner, upon the application to him in writing of ten or more own-
ers of land in each township in or through which they ask to have a
drain constructed, to institute proceedings for that purpose, with a
proviso, however, that "the petition, except when the same is asked
for upon sanitary reasons only, shall be signed by a majority of the
resident owners of the lands through or into which said drain is pro-
posed to be constructed." The petition in this case did not ask ac-
tion upon sanitary reasons. It was signed by twenty-one persons,
who style themselves "citizens and freeholders of Springwells"; but
there is no finding in the case, nor even any recital in any of the papers
which make up the record of the proceedings, that these twenty-one
persons constitute a majority of the resident owners of the lands
through or into which the drain was constructed. A subsequent
paper presented to the commissioner as a waiver of a jury to assess
damages, etc., is signed by nearly all the same persons, with some
others, who are therein recited to be "a majority of the resident own-
ers of the property affected by the said drain"; but this cannot aid
the petition, for other property is usually affected by a drain besides
that into or through which it extends.
It is said, however, that the commissioner in these cases may act
upon his own knowledge of the facts. If that be admissible, which we
do not decide, the record must in some manner show that he possessed
the requisite knowledge to justify his action. The record cannot be
aided by knowledge which the commissioner conceals in his own
breast; it must be complete in itself, and all jurisdictional facts must
appear on the face of it. In this case nothing appears to show that
the petition was sufficiently signed until the commissioner makes return
to this court. But assertions in that cannot cure defects in his record.
People v. Highway Commissioners, 14 Mich. 528.
The proceedings must be quashed. 11
* * *
10 Only a portion of the opinion is printed.
11 See, also, McGregor y. Supervisors, 37 Mich. 388.
"In a proceeding to establish or vacate highways in this state the statutes
have uniformly required that the petitions should be signed by twelve free-
holders of the county, six of whom shall reside in the immediate neighborhood
of the highway proposed to be located or vacated (section 7649, Burns' Ann.
St. 1908); but it has been held that it was not necessary to the sufficiency
of the petition that said facts be alleged therein [citing authorities]. Any-
Ch.3)
93
FORM AND PROOF OF OFFICIAL ACTS.
MEEKER v. VAN RENSSELAER.
(Supreme Court of Judicature of New York, 1836. 17 Wend. 397.)
The declaration charged the defendant with pulling down five dwell-
ing houses.
The defendant proved that the board of health
of the city had directed the nuisance to be abated. To this proof the
plaintiff objected, insisting that the minutes of the board or written
evidence of their orders should be produced. The objection was
overruled, and parol evidence was received.
SAVAGE, C. J.12 * * *
It was objected that parol evidence
should not have been received of the orders of the board of health.
This objection was well taken. The board of health is a tribunal cre-
ated by statute, clothed with large discretionary powers; and, being
a public body, its acts should be proved by the highest and best evi-
dences which the nature of the case admits of. Every proceeding of
a judicial character must be in writing. It is not to be presumed that
minutes of their proceedings are not kept by such a body, and that
determinations which seriously affect the property of individuals, were
not reduced to writing, but rest in parol. In the case of Van Wormer
v. City of Albany, 15 Wend. 262, the minutes of the proceedings of
the board were incorporated with the proceedings of the corporation,
of which the board of health were members, and were proved by a
witness a member of both boards.
*
WHITELY V. PLATTE COUNTY.
A
(Supreme Court of Missouri, 1880. 73 Mo. 30.)
NORTON, J. The controversy in this case grows out of the action
of the township board of directors of Weston township, Platte coun-
ty, in locating a new road over the land of plaintiff in sạid township.
Plaintiff appealed from the action of said board to the county court
of said county, in which court he filed his motion to set aside the or-
der establishing said road, because it was made without notice to
plaintiff, and because the said board had no jurisdiction to make it.
The court overruled the motion, whereupon the plaintiff appealed to
the circuit court, and renewed his motion to set aside said order be-
cause the township board had acquired no jurisdiction to establish said
road, and because the order establishing it was made without notice
to him. This motion being overruled, plaintiff appeals to this court.
The only question which the record presents is whether or not the
township board in the various steps taken had acquired jurisdiction.
This being a statutory proceeding in invitum to appropriate to the use
thing in Conaway v. Ascherman, 94 Ind. 187, 190, to the contrary is over-
ruled.” Ætna Life Ins. Co. v. Jones (Ind.) 89 N. E. 871 (1909).
12 Only a portion of this case is printed.
94
(Part 1
ADMINISTRATIVE POWER AND ACTION.
of the public the land of plaintiff, and being in derogation of common
law and common right, "the utmost strictness is required in order to
give it validity; and unless upon the face of the proceeding it af-
firmatively appear that every essential prerequisite of the statute
conferring the authority has been fully complied with, every step,
from inception to termination, is coram non judice.” Ells v. Pacific
R. R., 51 Mo. 200. The township board could only acquire jurisdic-
tion to lay out a new road and assess damages as is provided in sec-
tions 24, 25 and 27, p. 110, of the act of 1873, that being the act under
which the proceeding was had. These sections are as follows:
24. "The township board of directors may lay out or discontinue or
alter any road, or lay out any new road, when petitioned for by any
number of legal voters, who shall be householders of said township, not
less than twelve, residing within three miles of the road so to be alter-
ed, discontinued or laid out; said petition shall set forth in writing a
description of the road and what part is to be altered or discontinued;
and if for a new road, the names of owners of land, if known, over
which the road is to pass, the point at which it is to commence, its
gen-
eral course, and the place at or near which it is to terminate."
25. “Whenever any number of legal voters determine to petition the
township board for the alteration or discontinuance of any road, or
laying out a new road, they shall cause a copy of their petition to be
posted up in three of the most public places in the township, at least
twenty days before any action shall be had in reference to said peti-
tion.”
27. "The damages sustained in consequence of the laying out, open-
ing or altering a road, when the parties interested therein cannot
agree, shall be ascertained and assessed by the township board."
It is clear from these statutory provisions that it is an indispensable
prerequisite to laying out a new road that the petition for the same
must be made by twelve legal voters and householders of the town-
ship living within three miles of the proposed road, and that a copy
of such petition must be posted in three of the most public places in
the township at least twenty days before any action can be taken in
reference to it. These facts are jurisdictional and must affirmatively
appear in the proceedings, and unless they do so appear no jurisdic-
tion is conferred, and none can be exercised. The object of requiring
a copy of the petition to be posted up was to impart notice to the land-
owner that the public proposed to make an appropriation of his prop-
erty to a public use, and completely deprive and divest him of all con-
trol over the same; and in order that such notice might be effectual,
it is not only provided that such copy shall be posted up in three places
in the township where the road is proposed to be established, but that
these places must be three of the most public places in the township.
The record before us entirely fails to show a compliance with the law
in these respects, it only appearing therefrom "that it was proved to
the satisfaction of the board that notice of the opening of said road had
Ch. 3)
95
FORM AND PROOF OF OFFICIAL ACTS.
been posted in three places along the line of the road for twenty days
previous to this date.” Neither does it appear from the face of the
petition, or any other part of the record, that the road was petitioned
for by twelve legal voters and householders of the township living
within three miles of the road. The persons signing the petition are
designated as citizens of Weston township.
It therefore follows that, as the facts necessary to confer jurisdic-
tion on the township board do not affirmatively appear, under the rul-
ings of this court in the case of Ells v. Pacific R. R., supra, and the
case of Carpenter v. Grisham, 59 Mo. 247, the judgment must be re-
versed and the cause remanded to be disposed of in conformity with
this opinion. All concur.
SECTION 15.—Sane—IN ENFORCEMENT PROCEEDINGS.
PEOPLE ex rel. GREENWOOD et al., Highway Con'rs, v. BOARD
OF SUPERVISORS OF MADISON COUNTY.
*
*
(Supreme Court of Illinois, 1888. 125 Ill. 334, 17 N. E. 802.)
Appeal from Appellate Court, Fourth district.
Proceeding by mandamus by Peter Greenwood, J. M. Kendall, and
John T. Brown, Highway Commissioners of the Town of Wood
River, against the Board of Supervisors of Madison County, to com-
pel an appropriation of one-half of the cost of building a bridge in
the town of Wood River. Mandamus denied, and relators appeal.
SHOPE, J.13 *
The main controversy, however, arises upon
the instruction given by the court directing a verdict for the defendant.
As the case stood at the time the instruction was given, it was en-
tirely competent for the court, and correct practice, to direct a ver-
dict for the defendant, for the reason that there was not before the
jury sufficient evidence to support a verdict for the relators. But
back of this instruction lay the action of the court in rejecting the
evidence offered by the relators. If the offered evidence was com-
petent, and tended to sustain the issues on behalf of the relators, its
rejection was erroneous, and the instruction improperly given.
Under the practice prevailing prior to the present statute relating
to mandamus, the alternative writ became the foundation of all
subsequent proceedings in the case, answering the same purposes as
the declaration in ordinary actions. This being so, it was necessary
that the alternative writ should show upon its face a clear right in
the relator to the relief demanded. Therein the relator was required
to distinctly set forth all the material facts on which he relied, so
13 Parts of this case are omitted.
96
(Part 1
ADMINISTRATIVE POWER AND ACTION.
that the same could be admitted or traversed. Trustees v. People,
12 Ill. 248, 52 Am. Dec. 488. The statute referred to (Starr & C.
Ann. St. 1896, p. 1584), while it has changed the practice, dispensing
with the issuance of the alternative writ, and requiring the defendant
to answer, plead, or demur to the petition, has not modified or dis-
pensed with the common-law requirement resting upon the relator to
set forth and show a clear and indubitable right to the relief demand-
ed. In every case, to entitle the relator to relief, it must appear
that the defendant is under a legal obligation to do and perform the
act required, and every material fact necessary to show such legal
duty must be averred in the petition. Hall v. People, 57 Ill. 307;
People v. City of Elgin, 66 Ill. 507; People v. Village of Crotty,
93 Ill. 180.
The act in relation to roads and bridges under township organiza-
tion, approved May 28, 1879, and in force July 1, 1879 (Laws 1879,
p. 257), is broad and comprehensive in its terms and provisions,
embracing within its scope the establishment, alteration, construction,
repair, maintenance, and supervision of roads and bridges within or-
ganized towns. The immediate control and supervision of roads
and bridges in a town was vested in three commissioners of high-
ways, who were required to meet at a designated time and place,
and to organize by choosing one of their number treasurer, and there-
after to fix their own time and place of meeting; and, by the thir-
teenth section of the act, the commissioners were required to "keep
a correct record of their proceedings at all meetings." Although
reference is here made to the particular act named, in prior as also
in subsequent acts similar provisions appear, and like powers were
vested in, and duties imposed upon, these boards of highway com-
missioners; and they are now, and were under this particular act,
regarded and held to be a quasi corporation, powerless to act ex-
cept together and as a body (Commissioners v. Baumgarten, 41 Ill.
254; McManus v. McDonough, 109 Ill. 95), and of which action, as
we have seen under the act of 1879, they were required to “keep
a correct record.” It seems clear that the same rules of law are to
be applied to this corporate body, in respect to its corporate action,
and the evidence of such action, as are applied to other municipal
corporations; and that the record of its action, required by law to be
made and kept, becomes the best, and, if in existence and capable
of being produced, the only evidence thereof.
The 110th section of the act of 1879 provided under what circum-
stances a moiety of the expense of the construction of a bridge in
any town might be borne by the county. To avail of such county ajd,
and as the basis of any action to that end by the county authorities,
it must appear (1) that a necessity existed for the construction or
repair of such bridge; (2) its construction or repair must be an un-
reasonable burden on the town; (3) the cost must exceed such sum
as could be raised in one year by ordinary taxation for bridge pur-
Ch. 3)
97
FORM AND PROOF OF OFFICIAL ACTS.
poses in the town; and (4) that one-half the necessary funds there-
for had been provided by the town. These facts are by the law
made jurisdictional; and, without their existence and concurrence,
the county board was without power to appropriate money from the
county treasury for the purpose stated. The determination of these
jurisdictional facts is by the act left to the commissioners of high-
ways. Acting, as alone they liad the power to act, together and as a
board, at a meeting of the board, they were to determine that the
construction or repair of a bridge within their territorial jurisdic-
tion was necessary; that its construction or repair would be an un-
reasonable burden on the town; that the cost thereof would exceed
the sun that could have been raised in one year by ordinary taxa-
tion for bridge purposes in the town; and that they, by means under
their control, had provided for one-half the necessary expense-
of which determination they were required by the act to make and
keep a record. And this same section of the act section 110) made
it the imperative duty of the county board, whenever the commission-
ers of highways of a town brought themselves within the provisions
of the act, to appropriate out of the county treasury one-half the cost
of the proposed construction or repair. In the case under considera-
tion, the commissioners of highways of Wood River township sought
to avail of the provisions of the act referred to; and, if the case made
by their petition and proofs was such as to bring them within the
law, the writ should have been awarded.
By the averments of relators' petition a prima facie case was made.
Issue being taken thereon, it became necessary for relators to main-
tain, by competent testimony, the truth of every material averment;
taking upon themselves the same burden that rests upon the plaintiff
in an ordinary action at law where the averments of the declaration
are put in issue. To meet this requirement the relators produced as
a witness the town clerk of Wood River, who was also the clerk of
the commissioners of highways for the 'year 1882, who testified that
the commissioners held meetings on April 19, August 19, and Sep-
tember 2, 1882; and, on his being asked if the commissioners of high-
ways of the town did not determine to build a bridge, an objection
was interposed by the defendants, and sustained by the court. This
ruling of the circuit court was unquestionably correct. As we have
before stated, the determination by the commissioners of highways
that a necessity existed for the construction or repair of a bridge,
as a basis for an application to the county board for county aid un-
der the statute, was an exercise of a corporate power vested in the
commissioners of highways, which could only be at a meeting of the
commissioners, and be shown by the record required by the law to
be made and kept. Before the county board could be legally moved
in the matter, or any legal duty be cast upon them, the commissioners
must have determined that such necessity existed, and have preserved
FR. ADM. LAW.--7
98
(Part 1
ADMINISTRATIVE POWER wi
AND ACTION.
the evidence of that fact in their record. In the proceeding then before
the circuit court, the corporation, the commissioners of highways, could
only speak by their record, unaided by parol testimony.
The principles announced seem to be well supported by authority.
Where the law requires records to be kept, they are the only lawful
evidence of the action to which they refer, and such record cannot be
contradicted or supplemented by parol. The whole policy of the law
would be defeated if they could rest partly in writing and partly in
parol. Stevenson v. Bay City, 26 Mich. 44; Hall v. People, 21 Mich.
456; Morrison v. City of Lawrence, 98 Mass. 219; Hunneman v. Fire
Dist., 37 Vt. 40; Mayhew v. District of Gay Head, 13 Allen (Mass.)
129. So, where county commissioners and township trustees were re-
quired by law to keep a true record of their proceedings, it was held
that they could "only speak by their record” when legally assembled.
Commissioners v. Chitwood, 8 Ind. 504. And, where school districts
are required by law to keep an account of their proceedings by a sworn
clerk, such proceedings can only be proved by the record. Offered
parol proof was rejected. Jordan v. School Dist., 38 Me. 164. And in
respect of the county court in counties not under township organiza-
tion, constituting in such counties the county board, having the man-
agement and control of the fiscal affairs of the county, it was held that,
in matters of allowance or rejection of claims against the county, the
records of the court are the only admissible evidence of their official
acts. McHaney v. Marion Co., 77 Ill. 488.
The relators read in evidence the record of the commissioners of
highways of August 19, 1882, as follows: "The amount of taxes was
fixed at forty (40) cents for bridges, and twenty (20) cents for roads;
for making and repairing bridges, $6,000.40; for other purposes, $2,-
100.01; total, $8,100.41. Moved to petition county for aid in build-
ing bridge over Wood river. Carried.” And offered, in that connec-
tion, to prove by their clerk. that, at the meeting on August 19th, it
was determined to build the particular bridge; that it was necessary
it should be built; that its construction would be an unreasonable bur-
den on the township; that a tax was levied by the commissioners for
the purpose of providing one-half the estimated cost thereof; that the
estimated cost was $5,000; and that the memorandum on the records
was the result of the determination and action of the commissioners.
The court sustained an objection to the offered testimony. The offered
testimony was in the highest sense material; and, had it been embodied
in the record of the commissioners, it would have tended to establish
every material averment of the petition. But the imperfect record of
the determination and action of the commissioners could not thus be
cured and aided by parol. Considerations of the gravest character re-
quire us to hold that; where the law has required a record to be kept
of corporate action by any of the agencies of the state, the record alone
can be resorted to to establish such action in all collateral proceedings.
Ch.3)
99
FORM AND PROOF OF OFFICIAL ACTS.
7
Further offers of proof were made by relators in respect to the esti-
mate by the commissioners of the sum needed for making and repair-
ing bridges for the year 1882, including one-half the cost of this new
bridge; that an estimate of the cost of this bridge was procured from
the county surveyor, of which, however, no record was made; of the
rate per cent. of the levy for bridge purposes; of the amount collected
and turned over to the commissioners, and what part of it was for this
new bridge,—to all of which objection was sustained. As will be seen,
every material fact offered to be proved by parol should have appeared
in the record of the action of the commissioners, or was capable of
proof by the public records of the county, and the ruling of the circuit
court was correct.
Relators did read in evidence their petition to the county board ask-
ing for county aid, and also the record of the action of the county
board thereon, from which it appeared an allowance from the county
treasury was made of $1,000. The fact that the county board was peti-
tioned for county aid might, no doubt, be shown by the petition itself;
but such petition, though made and signed by the commissioners, can-
not be regarded as proof of the facts recited therein, so as to supply
the absence or take the place of the record of the commissioners' ac-
tion required by the law to be kept.
Perceiving no error in the judgment of the Appellate Court, it is
affirmed.14
SECTION 16.-SAME-IN COLLATERAL PROCEEDINGS
NEALY v. BROWN et al., County Com'rs.
(Supreme Court of Illinois, 1844. 1 Gilman, 10.)
Debt on the statute for obstructing a public highway. The cause
was heard in the Greene circuit court, before Hon. Samuel D. Lock-
wood and a jury, at the October term, 1843; the venue having been
changed from Jersey county. The jury found a verdict against the
defendant below, and a fine of $20 was imposed, from which judgment
he prosecutes his writ of error in this court.
CATON, J. This was an action of debt for obstructing a public high-
way, commenced before a justice of the peace of Jersey county, and
appealed to the circuit court of that county, whence the venue was
14 As to defective and erroneous records, see Dillon, Municipal Corporations,
S$ 295–301; also State ex rel. Brickman v. Wilson, 123 Ala. 259, 26 South.
482, 45 L. R. A. 772 (1899). That a record cannot be allowed to be amended
to the prejudice of a party who relied upon action as it appeared on the
record, see Sawyer V. Railroad, 62 N. H. 135, 13 Am. St. Rep. 541 (1882);
Bissell v. Jeffersonville, 24 How. 287, 16 L. Ed. 664 (1860).
There are many statutory provisions relating to presuwption of regularity,
especially in highway proceedings and tax sales.
100
(Part 1
ADMINISTRATIVE POWER AND ACTION.
changed to the circuit court of the county of Greene. The record
presents two bills of exceptions, from the first of which it appears
that, upon the trial of the cause, the plaintiffs below offered in evidence
a certified copy of an order of the county commissioners' court of
Jersey county, which refers to and adopts the report of the viewers
appointed to view and locate the road for the obstruction of which
this suit was brought, and establishes said road as a public highway,
and directs that the same be opened and kept in repair according to
law. To this the defendant objected, but the court allowed it to be
read, and this we will first examine.
Was it necessary, before it was competent to read this order, to
show that all the previous steps required by the statute had been
taken? We think not. The county commissioners are vested with
exclusive jurisdiction over all matters in relation to roads in their re-
spective counties, and we are satisfied that sound policy and the pub-
lic good require that we should presume that the antecedent proceed-
ings had been regular, subject, however, to be rebutted by the other
party. If we go behind the order, I know not where we might stop.
Should the plaintiff show that a petition was presented, signed by the
requisite number of persons, and should he be required to prove that
all were legal voters, that the viewers were qualified to act as such,
and were sworn, and all the other minute inquiries which ingenuity
could invent? Should such be held to be the law, we should be drawn
into the trial of a great number of collateral issues in no wise im-
portant to the justice of the case. Should such a rule be adopted, most,
if not all, of the public roads in the older counties might be shut up to-
morrow with impunity.
In the case of Eyman v. People,15 decided at the September term,
1812, 1 Gilman, 8, this court went farther than we are now called
upon to go. There it was held that it was not necessary to produce any
record evidence of the road. In that case the court say: "It is in-
sisted that the original survey and plat of the road, and the records of
the commissioners' court approving the same, and directing the road
to be opened, should have been produced as the best evidence that it
was a public road. No authority has been cited, nor are we aware of
any adjudicated case sustaining this position. The practice would be
very inconvenient, and would tend rather to defeat than promote the
ends of justice. If the road is used and traveled by the public as a
highway, and is recognized and kept in repair as such by the county
commissioners and supervisor, whose duty it is by law to open and
repair public roads, proof of these facts furnishes a legal presumption,
liable to be rebutted, that stich road is a public highway.
The laying out and opening of roads is not an exercise of judicial
powers, and hence the position that no presumptions are to be indulged
in their favor is not tenable. As well might he, who is affirming the
15 Indictment of county commissioners for omission of duty in neglecting
to cause repairs to be made.
Ch. 3)
101
FORM AND PROOF OF OFFICIAL ACTS.
sale of school land, be required to show that a petition for the sale
of the land had been presented by the requisite number of householders
of the township.
*
**
* 16
STATE v. WEIMER.
(Supreme Court of Iowa, 1884. 64 Iowa, 243, 20 N. W. 171.)
Appeal from Lee district court.
Defendant was convicted of obstructing a highway, and now ap-
peals to this court.
BECK, J. The only evidence introduced by the state to prove that
the road, for the obstructing of which defendant was indicted, is a
lawfully established highway, consists of the commissioners' road rec-
ord, a book in the custody of the auditor of the county, and an official
copy of the original plat of the road. There was evidence tending
to show that the road indicated by these records had been opened, and
afterwards obstructed by defendant.
The road record fails to show that the notice required by the stat-
ute (Code, $ 936) had been given, and there is no recitation or aver-
ment therein tending to show that any notice was given to defendant
upon whose land, it appears to be claimed, the road was located. Nor
does the record show that defendant appeared in the proceeding, and
thus waived service of notice. It is recited that the road was “by con-
sent of attorneys of parties herein, and request of board, declared to
be forty feet in width.” But it is not shown by the record, nor by ev-
idence aliunde, if, indeed, it were competent, which we do not de-
termine, that defendant appeared to the proceedings, or had notice
thereof at any time, or that he was a party to the case before the su-
pervisors. The defendant proposed to prove that, by an agreement
between the board of supervisors and himself, the road was to be es-
tablished as of the width of thirty-three feet. But; upon the objec-
tion of the state, this evidence was rejected. There was no evidence
of any character tending to show that defendant was served with the
notice required by law, or waived service thereof.
This court has held in a similar case that, as the petition and notice
required by law in proceedings to establish roads are necessary to con-
fer jurisdiction upon the supervisors in road cases, they must be
shown by the record, and that, in the absence of such showing, no pre-
sumption will obtain in support of the jurisdiction of the supervisors.
State v. Berry, 12 Iowa, 58. There being no evidence that the super-
visors acquired jurisdiction to establish the road in this case, and no
presumption thereof authorized by law, the proceedings are void.
Alcott v. Acheson, 49 Iowa, 569.
16 The rest of the opinion is omitted. It is stated in the further course of
the opinion that from the record it does not appear that any evidence was
given tending to establish that the road obstructed was on defendant's land.
102
(Part 1
ADMINISTRATIVE POWER AND ACTION.
We understand that the court below, in the second instruction, held
that the records of the supervisors conclusively prove that the high-
way was lawfully established. The instruction, in the form we find it
in the abstract, is not clearly expressed, but it certainly recognizes the
sufficiency of the record to show that the road was a lawful highway.
The instruction is erroneous. On the contrary, the jury should have
been informed that the evidence failed to show that the road obstructed
by defendant was established by law. As these considerations are
decisive of the case, other questions argued by counsel need not be
considered.
The judgment of the district court is reversed.17
LINGO V. BURFORD.
(Supreme Court of Missouri, 1892. 112 Mo. 149, 20 S. W. 459.)
GANTT, J. This is a proceeding by injunction, commenced in the
circuit court of Johnson county, by which the plaintiff sought to re-
strain the defendant, Burford, as road overseer, from opening a public
road over and through lands of the plaintiff, under an order of the
county court.
The material averments of the petition are that "no legal notice was
ever given of the presentation of a petition for such an order; that
the county commissioner did not survey, view, or mark out a roadway
over said land, or take relinquishments of right of way for same, or
ask for such relinquishments, or make any report of his action, as the
law requires, and that plaintiff has never in fact relinquished the right
of way for a road over said land; that there has never been any assess-
ment of damages to be done the land of the plaintiff by the establish-
ment of said road; that the pretended order of record establishing
said road is void upon its face, for want of jurisdiction to make the
same.”
The plaintiff, to sustain his case, introduced the record of the pro-
ceedings in the county court. The petition on its face alleged that
the petitioners were freeholders of Chilhowie and Post Oak town-
ships, through which said proposed road ran; that it was signed by at
least 12 freeholders of said township, and it specified the proposed be-
ginning, course, and termination, with not less than two points named
on the direction. Section 7796, Rev. St. 1889. It was presented and
publicly read at the regular August term of the county court, 1887.
The record made by the county court at that term is as follows:
"Now, at this day, is presented to the court the petition of A. J. Dun-
17 "The order of revocation was introduced without objection; but, if it
contained no statement showing a jurisdiction in the board, it certainly was
insufficient for that purpose; and it contains nothing which indicates, that
they proceeded under a written complaint." State v. Lamos, 26 Me. 258
(1846), post, p. 183.
See Little V. Denn, 34 N. Y. 452 (1866).
Ch.3)
103
FORM AND PROOF OF OFFICIAL ACTS.
ham et al., praying for the establishment of a public road forty feet
in width in Chilhowie and Post Oak townships, to run as follows:
[Here follows a minute description of the route.] And the court
having heard said petition publicly read, and it being proven to the
satisfaction of the court that it is signed by at least twelve freeholders
of Chilhowie and Post Oak townships, three of whom are of the im-
mediate neighborhood of said proposed road, and that due notice has
been given according to law, and that said proposed road is of public
utility and practicability, it is ordered that the county commissioner
proceed to view, survey, and mark out said road, and report the prac-
ticability of said road, together with the distances and situation of the
ground, the names of the parties granting the right of way, and the
estimated cost of building needed bridges, at the next regular term of
this court."
At the next November term, the county road commissioner filed his
report, showing the landowners who had relinquished the right of way
and those who had not. Among those who had failed or refused to re-
linquish, he reported the plaintiff, H. J. Lingo, and that he claimed
$100. Thereupon the county court, as required by section 7799, Rev.
St. 1889 (section 8, p. 247, Laws 1887), by its order of record, ap-
pointed three disinterested freeholders to act as a jury, view the prem-
ises, and assess the damages of those who had failed or refused to re-
linquish the right of way. At the next February term, the commis-
sioners thus appointed made their report, in which they returned that
they had viewed the premises, and assessed the damages of each tract
of land separately, and the report as to the plaintiff was as follows:
"To H. J. Lingo, at end N. E. N. E. section 26, township 44, and
range 26-no damages."
Thereupon the court made the following order: "Now, at this day
is taken up the report of the commissioners heretofore appointed to
assess the damages resulting to the premises of L. P. Fisher, H. J.
Lingo, and others, by reason of the establishment of a public road pe-
titioned for by A. J. Dunham et al., from which the court finds that
said commissioners have viewed the premises of the parties aforesaid,
and have allowed no damages; and no objections being filed to the
verdict of said jury, and it appearing to the court that said proposed
road is of sufficient utility to justify opening and improving the same
for public travel, it is therefore ordered that a public road forty feet
in width be opened, and run as follows: [Describing the route par-
ticularly."
The circuit court granted a perpetual injunction against the road
overseer, from which he appeals to this court.
The contention arises as to the jurisdiction of the county court to
order the road opened. Plaintiff in error insists that the record of
recital of the county court "that due notice has been given according
to law," nothing further appearing, was sufficient in this collateral
proceeding to show jurisdiction in that court, so far as it was es-
104
(Part 1
ADMINISTRATIVE POWER AND ACTION.
sential to show notice, whereas defendant in error maintains that the
recital is insufficient.
That the county court was only authorized to entertain the proceed-
ing to condemn plaintiff's land for the road, upon notice given as re-
quired by the statute (section 7797),* is not to be questioned, but it is a
well-settled principle that, where the jurisdiction of an inferior court
depends upon a fact which said court is required to ascertain and
settle by its decision, its decision is conclusive as against a collateral
attack. Jackson v. State, 104 Ind. 516, 3 N. E. 863; In re Grove
Street, 61 Cal. 438; People v. Hagar, 52 Cal. 171; Shawhan v. Lof-
fer, 24 Iowa, 217; Porter v. Purdy, 29 N. Y. 106, 86 Am. Dec. 283;
Lewis, Em. Dom. § 605; Black, Judgm. § 288; Elliott, Roads & S. p.
243; State v. Smith, 105 Mo. 6, 16 S. W. 1052.
The county court had original exclusive jurisdiction to hear and
determine, upon a proper petition and due notice, whether a new public
road should be established over the route designated in the petition.
The petition stated every fact necessary to give the court jurisdiction
of the subject-matter. Twenty days' notice of this application was
required. The statute required "proof of notice having been given as
required.” The county court was the tribunal authorized to hear and
determine the sufficiency of the proof. It was not required by law
to spread on its record the evidence by which it ascertained that no-
tice had been given. It did find and spread on its record that."notice
had been given according to law.” This was a fact in pais, to be es-
tablished by evidence, and its power to proceed further in the case
depended upon the giving or failure to give this notice. It judicially
ascertained it was given, and we think that it is conclusive as against
a collateral attack.
In Daugherty y. Brown, 91 Mo. 26,.3 S. W. 210, a case in all re-
spects similar to this, this court held a recital that "due legal notice
had been given of the intended application" was sufficient, and affirmed
the judgment of the circuit court, refusing to enjoin the overseers
from opening the road. The decision in that case is well sustained by
authority elsewhere. Hendrick v. Whittemore, 105 Mass. 23; Bor-
den v. State, 11 Ark. 519, 4+ Am. Dec. 217; Delaney v. Gault, 30 Pa.
63.
*
* 18
* Rev. St. 1889, § 7797, provides that notice of an intended application for
a new road or change of road "shall be given by printed or written hand-
bills put up in three or more public places in such municipal township or
townships, one of which to be put up at the proposed beginning, and one at
the proposed termination, of said road, at least twenty days before the first
day of a regular term of the county court at which the petition is presented,
and which notice shall apply and be binding on corporations as well as on
persons.”
18 The rest of the opinion is omitted.
Ch. 3)
105
FORM AND PROOF OF OFFICIAL ACTS.
SECTION 17.-EVIDENCE OF OFFICIAL CHARACTER
JOHNSON v. STEDMAN.
(Supreme Court of Ohio, 1827. 3 Ohio, 94.)
This cause came up on a motion for a new trial, adjourned here
from the county of Meigs. It was an action of trespass for taking
and converting goods. The defendant pleaded that he was a con-
stable, and that an execution was put into his hands to be levied, by
virtue of which he took the goods in question as the property of the
defendant in execution, the now plaintiff. Upon this plea issue was
joined. At the trial the defendant, to establish the fact that he was
a constable, offered parol evidence, and no other, that he acted and
officiated as constable of the township at the time the levy was made.
The plaintiff objected to the admission of this evidence, but the court
received it, and a verdict passed for the defendant. A motion
was made for a new trial, upon the ground that improper testimony
was admitted; maintaining that the actual appointment in writing, and
other requisites, should be produced in evidence.
HITCHCOCK, J.19 The question now presented to the court was
considered at the last term, in the case of Barret v. Reed, 2 Ohio, 409,
but, inasmuch as there was some difference of opinion, and that case
was decided upon a different point, was left undetermined.
But one serious objection is made to the admissibility of the evi-
dence received on the trial of the issue in this case. It is this: That
if such testimony is received, the rule "that the best evidence which
the nature of the thing admits, and is capable of, must always be
given," will be violated.
Constables in Ohio are township officers, although in some few in-
stances they may serve process in any part of the county. They are
elected by the people at their annual township elections, and any per-
son elected and refusing to serve is subject to a penalty. Within ten
days after the election, the individual elected is to take an oath of of-
fice, which oath may be administered by the township clerk, or any
other person having general authority to administer oaths. In addi-
tion to this, before entering on the duties of his office, he must give a
bond with one or more sureties, to be approved of by the trustees of
the township, for a sum not exceeding two thousand dollars, payable
to the state of Ohio, conditioned for the faithful discharge of those
duties. The election, the giving of bonds, the approval of the sure-
ties, the administration of the oath of office, ought to be noted by
the township clerk in his book of record. This would undoubtedly
19 A portion of the opinion is omitted.
106
(Part 1
ADMINISTRATIVE POWER AND ACTION.
be done should the clerk, and every other officer concerned, do their
duty. The constable, however, receives no certificate or other writ-
ten document to prove his official character and qualifications. The
best evidence "the nature of the thing admits of” to prove this of-
ficial character would undoubtedly be the township records, provided
these records had been properly kept. Experience, however, teaches
us that in many parts of the country these records are so loosely kept
that we are, from necessity, compelled to resort to evidence of a sec-
ondary nature.
Under these circumstances, does either policy, justice, or law dictate
that, in cases like the present, we should strictly adhere to the rule
that the best evidence which the nature of the thing admits of and
is capable of shall be given? So far as it respects third persons, there
is no doubt on the subject. Where such persons are interested, it is
believed to be the practice of all courts to permit them to prove that
an individual who claims to be a public officer is such de facto, with-
out requiring them to prove that he is such de jure. The great danger
which will result from adopting the same rule of evidence, where the
officer himself is a party, is not readily conceived. There is a differ-
ence, it is true, between the two cases. Every man who undertakes
to exercise the duties of an office ought to know whether he is legally
qualified, while this knowledge cannot be supposed to extend to others.
This difference of circumstances, however, is not so great as to require
a difference in the rule of evidence.
In deciding this question, it may not be improper to turn our at-
tention for a moment to the nature of those suits in which constables
or other ministerial officers are parties. In some cases the principal
question is whether the party is, or is not, an officer de jure. But
such cases are not of frequent occurrence. Were it otherwise, it
might be expedient to adopt a different rule of evidence. It is be-
lieved, however, that in ninety-nine cases in a hundred this is a question
of secondary importance. The object more generally is to determine
the right of property, the legality of process, the validity of an arrest,
or something of a similar nature. In most of these cases, to require of
the party, claiming to be a public officer, proof that he had complied
with every requisite of the law to qualify him to act, would be at-
tended with unreasonable inconvenience to him, without any com-
mensurate advantage to his opponent.
In the case before the court, the real question in dispute was not
whether Stedman was a constable, but whether the house which was
the subject-matter of litigation was the property of Johnson, the
plaintiff, or the property of Hollingsworth. Under these circum-
stances, the evidence was properly received. It was sufficient for the
purposes of this case to prove that Stedman was a constable de facto.
The principle here decided is supported by high and unquestionable
authority. In the case of Potter v. Luther, 3 Johns. 431, the Su-
preme Court of the state of New York say: "It is a general rule to
Ch. 3)
107
FORM AND PROOF OF OFFICIAL ACTS.
admit proof by reputation that a person acts as a general public of-
ficer or deputy.” In Berryman v. Wise, 4 Term, 336, the Court of
King's Bench, in England, decided that in the case of all peace of-
ficers, justices of the peace, constables, etc., it was sufficient to prove
that they acted in these characters, without producing their appoint-
inent. This, to be sure, was the expression of Justice Buller; but,
from an examination of the case, I am satisfied it was the opinion of
the whole court. So in Esp. Dig. 183, it is laid down that cases sim-
ilar to the one under consideration are exceptions to the general rule
"that the best evidence, etc., must always be given."
Upon the whole, we are of opinion that the notion for a new trial
inust be overruled and judgment entered on the verdict.
ELDRED V. SEXTON.
(Supreme Court of Ohio, 1831. 5 Ohio, 213.)
Action of trespass against the treasurer of a school district for tak-
ing and converting a yoke of oxen, which were seized for nonpayment
of a tax.
PER CURIAM. The question raised in the case seems to have been
settled by this court, in the case of Johnson v. Stedman, 3 Ohio, 94.
In that case it was decided that a person, who has justified an act
upon the ground that he was a constable, might establish his official
character by general reputation and proof that he acted as such. We
are not disposed to change the principle established in that case. In
fact, we are satisfied that it is more consistent with the ends of justice
than to establish a contrary rule of evidence. We do not say that such
evidence is conclusive; but that it is prima facie, and, unless contra-
dicted, must be conclusive.20
MCCOY v. CURTICE.
(Supreme Court of Judicature of New York, 1832. 9 Tend. 17, 24 Am. Dec.
113.)
Error from the Orange common pleas.
McCoy sued Curtice in an action of trover for a watch. Tlie de-
fendant pleaded the general issue. The plaintiff proved the taking
of the watch and its value. The defendant justified as collector of a
school district, viz., school district No. 15, situate partly in the town
of Warwick and partly in the town of Goshen, in the county of Orange.
He produced a warrant, signed by S. Jayne and J. Fox, as trustees of
20 See Case v. Hall, 21 Ill. 632 (1859), defendant desiring to justify as of-
ficer must allege that he has been duly elected and has qualified; Rounds
r. Vansfield, 38 Me. 586 (1854), must prore that he has qualified.
108
(Part 1
ADMINISTRATIVE POWER AND ACTION.
the school district, commanding certain moneys to be levied as a tax,
and amongst others of McCoy, and proved by parol that Jayne and
Fox were reputed to be, and acted as, trustees of the district, and also
proved by parol that he, the defendant, had acted as collector, and that
as such collector he had levied upon the watch of the plaintiff. The
plaintiff objected to the parol evidence when offered, but the objection
was overruled. He also objected to the warrant being received in evi-
dence, until the erection of the district was shown by the production of
the records of the towns of Warwick and Goshen, and insisted that,
even were they produced, the warrant was illegal in having been is-
sued by only two instead of three trustees. These objections were also
overruled. The jury, under the charge of the court, found a verdict
for the defendant, and the plaintiff sued out a writ of error.
SUTHERLAND, J. It is a general rule in relation to all public of-
ficers that they may establish their official character by proving that
they are generally reputed to be, and have acted as, such officers, with-
out producing their commission or other evidence of their appoint-
ment. This is well established, as to all peace officers, sheriffs, con-
stables, justices of the peace, etc. 4 T. R. 366; Potter v. Luther, 3
Johns. 431; Cowen's Tr. 572, note "m”; Young v. Commonwealth, 6
Bin. (Pa.) 88; Fowler v. Bebee, 9 Mass. 231, 6 Am. Dec. 62; People
v. Collins, Johns. 549; McInstry v. Tanner, 9 Johns. 135; Reed v.
Gillet, 12 Johns. 296; Wilcox v. Smith, 5 Wend. 231, 21 Am. Dec. 213;
16 Viner, 113, 14.
In Rex v. Jones, 2 Campb. 131, a letter was permitted to be read
purporting to be from the lords commissioners of the treasury, with-
out any evidence except what appeared on the face of the letter that
they were commissioners. That, too, was a criminal case, and it was
distinctly objected on the part of the defendant that the authority of
the commissioners should be shown by producing the commission by
which they were appointed. The trustees and collector of a school
district are regular officers, annually chosen, with powers and duties
well defined and regulated by statute; and it is not perceived why
their official characters may not be shown in the same manner as that
of a justice of the peace or a constable. They are officers of almost
equal notoriety, and the duties of a collector are very much of the
same nature, as those of a constable. Laws 1819, p. 198, $8 20 to 25.
I am inclined to think, therefore, the parol evidence upon these
points was admissible. Whether it was sufficient or not is a questioni
which does not arise on this bill of exceptions. The objections are
specifically to the nature of the evidence, and not to its defect or suf-
ficiency.
Judgment affirmed.
*
* 21
21 For rest of opinion, see ante, p. 89.
Ch.3)
109
FORM AND PROOF OF OFFICIAL ACTS.
PATTERSON v. MILLER.
(Court of Appeals of Kentucky, 1859. 2 Metc. 493.)
22
Chief Justice SIMPSON delivered the opinion of the court.?
This action was brought by William F. Patterson against James P.
Miller and William H. Haynes, to recover damages for an alleged il-
legal seizure and sale by them of his personal property. The plaintiff
stated in his petition that the defendant Miller pretending to be the
sheriff of Russell county, when in reality he was not the constitutional
sheriff of that county, unlawfully and without authority took into his
possession and sold a sorrel mare, the property of the plaintiff, and
that the defendant Haynes purchased said mare at the aforesaid illegal
sale and converted her to his own use.
The defendant Miller averred in his answer that he was the sheriff
of Russell county, duly elected and qualified according to law, and as
such seized the property in the petition mentioned, and made sale
thereof, under and by virtue of two executions which issued from the
office of the presiding judge of the Russell county court, and were
placed in his hands for collection; and the defendant Haynes, in his
answer, admitted that he had purchased the property so sold, and in-
sisted that he had a right to make the purchase, as the property was
sold under execution by a person who was acting as sheriff of the
county.
The defendant Miller read as evidence upon the trial the certificate
of his election as the sheriff of Russell county, and the records of
the county court, by which it appeared that he had qualified and exe-
cuted an official bond as sheriff, according to law. The plaintiff then
offered to prove that Miller was not a resident of Russell county at the
time he was elected, but was then, and still was, a resident of Adair
county. This testimony was rejected by the court on the ground that
the certificate of the examining board was conclusive evidence, not
only of Miller's election as sheriff, but also of his eligibility to the of-
fice. The court, however, decided that evidence might be offered to
show that he had removed from the county since his election, although
evidence that he was not a resident of the county at the time of his
election was inadmissible. The correctness of this decision of the
court below is the only question presented for our consideration,
By the sixth article of the Constitution it is provided that no per-
son shall be eligible to the office of sheriff who has not resided one
year next preceding the election in the county for which he is a candi-
date.
Whether the acts of a sheriff, who has forfeited his
office by a reinoval from the county, would be valid, and could be re-
lied on for his own protection, until his office should, by a direct pro-
ceeding against him, be declared vacant, it is not necessary now to de-
*
22 Only a portion of the opinion is printed.
110
(Part 1
ADMINISTRATIVE POWER AND ACTION.
termine. Such acts would, however, according to well-settled prin-
ciples, be legal and valid, so far as third parties were concerned.
But where a person is constitutionally ineligible to an office, he will
not be the lawful incumbent thereof, although he may be elected, ob-
tain a certificate of his election from the examining board, take the
oath of office, and execute the bond prescribed by law. Are the acts
of the officer in such a case legal to any extent; and, if so, to what
extent are they legal?
As he holds his office by color of right, and acts as sheriff, all his
acts as such are regarded as lawful, so far as third parties are con-
cerned. Public policy requires that they should be so regarded, and
that his official authority should not be questioned collaterally. He
acts as the sheriff of the county, and it is to the interest of its citizens
that his acts should be declared to be valid, so long as he continues thus
to act. It has been accordingly held that a person unconstitutionally
commissioned a justice of the peace was an officer de facto, and his
acts valid as to third persons. Justices of Jefferson County v. Clark,
1 T. B. Mon. 86; Wilson v. King, 3 Litt. 459, 11 Am. Dec. 81. He
remains an officer de facto, until his office shall be declared to be va-
cant or forfeited, by a direct proceeding against him, instituted and
carried on for that purpose. Stokes v. Kirkpatrick, 1 Metc. 143.
Can he, however, in an action against himself, for acting as sheriff,
and seizing and selling the property of the plaintiff without lawful
authority, defeat the right of recovery, by showing that he acted as
an officer de facto, or by relying on his certificate of election and quali-
fication in the county court, as conclusive evidence that he was the
lawful sheriff of the county?
The principle is well established that, although the acts of an of-
ficer de facto are valid as to third persons, nevertheless they are invalid
so far as he is himself concerned; and his mere color of title to the
office will not avail him as a protection in actions against him for tres-
passes on person or property. Rodman v. Harcourt, 4 B. Mon. 229.
It only, therefore, remains for us to inquire whether the certificate of
election and the fact that he qualified and gave bond in the county
court, as prescribed by law, furnish conclusive evidence that he was
the lawful incumbent of the office of sheriff of Russell county.
The examining board is constituted by law for the mere purpose of
comparing the polls, and giving a certificate of his election to the can-
didate having the largest number of votes, according to the returns
which have been made by the officers who conducted the election at the
different places of voting in the county. It is not the duty of this
board to examine into or decide upon the qualifications of the candi-
dates for the office to which they are elected. Consequently the cer-
tificate which it issues to a candidate that he is elected to an office is
not even prima facie evidence that he was eligible to the office, al-
though conclusive evidence that he was elected thereto, unless his
election be contested before the proper board.
Ch.3)
111
TORM AND PROOF OF OFFICIAL ACTS.
The duty which the law devolves upon the county court, in regard
to the sheriff, only extends to the administration of the appropriate oath
of office, and the taking of a bond with sufficient sureties to be ap-
proved of by it. The performance of this duty is incumbent on the
county court whenever a person claiming to be entitled to the office
of sheriff presents a certificate of his election from the proper board.
The court has no power to inquire into his eligibility, or to refuse to
permit him to qualify and execute a bond according to law, on the
ground that he is ineligible to the office. Consequently, the fact that
he has qualified and given an official bond in the county court as sher-
iff cannot be relied upon to prove his eligibility to the office.
We decide, therefore, in this case, that as Miller acted under color
of title to the office of sheriff the sale made by him under the execu-
tions in his hands is sufficient to protect the purchaser. But if he
were constitutionally ineligible to the office of Sheriff when elected,
the law will not so far encourage a violation of the Constitution as
to permit him to protect himself under a mere color of authority, exer-
cised in opposition to an express mandate of the Constitution, when,
too, he must have known that his title to the office was not legal, and,
therefore, that all his acts as sheriff were without authority and
against law.
The court below, therefore, erred in rejecting the evidence, which
was offered to be introduced on the trial, to prove that Miller was not
a resident of Russell county when he was elected to the office of sheriff.
Wherefore the judgment is reversed, and cause remanded for a
new trial and further proceedings not inconsistent with the principles
of this opinion.
The judgment for the appellant's costs in this court must be against
Miller alone.23
SECTION 18.-DE FACTO OFFICE AND AUTHORITY
PEOPLE ex. rel. BUSH v. COLLINS.
(Supreme Court of New York, 1811.
7 Johns. 549.)
An alternative mandamus was directed to a town clerk, command-
ing him to record the survey of a road, pursuant to the act (Laws
24th Sess. C. 186), or show cause; and the clerk returned that he did
not record the survey because the commissioners had not taken the
oath of office, and filed a certificate of the oath with the clerk, accord-
ing to the act.
23 See Courser v. Powers, 34 Vt. 517 (1861).
112
(Part 1
ADMINISTRATIVE POWER AND ACTION.
.
PER CURIAM. 24
Nor is the allegation material, in this
case, that the commissioners had not caused a certificate of their oath of
office to be filed in the town clerk's office. If the commissioners of
highways acted without taking the oath required by law, they were
liable to a penalty; or the town, upon their default in complying with
the requisition of the statute, miglit have proceeded to a new choice of
commissioners. But if the town did not (and it does not appear that
they did in this case), the subsequent acts of the commissioners, as
such, were valid, as far as the rights of third persons and of the public
were concerned in them. They were commissioners de facto, since
they came to their office by color of title; and it is a well-settled prin-
ciple of law that the acts of such persons are valid when they con-
cern the public, or the rights of third persons who have an interest in
the act done; and this rule is adopted to prevent the failure of jus-
tice. The limitation to this rule is as to such acts as are arbitrary and
voluntary, and do not affect the public utility. The doctrine on this
subject is to be found at large, in the case of Rex v. Lisle, Andrews,
263. It certainly did not lie with the defendant, as a mere ministerial
officer, to adjudge the act of the commissioners null. It was his duty
to record the paper; valeat quantum valere potest. It was enough for
him that those persons had been duly elected commissioners within
the year, and were in the actual exercise of the office. It may be that
the oath was duly taken, and that the omission to file the certificate of
it was owing to casualty or mistake. The validity of the title of the
commissioners to their office must not be determined in this collateral
way.
The opinion of the court, accordingly, is that the rule for a per-
emptory mandamus be granted.25
PEOPLE v. HOPSON.
(Supreme Court of New York, 1815. 1 Denio, 574.)
The defendants were indicted for assaulting and beating Peter Las-
cells, a constable of the town of Salisbury, Herkimer county, and re-
sisting him in the execution of his duty as such constable.
BRONSON, C. J.26 *
The next question is on the offer to
show that Lascells had not taken the oath of office, or given security,
and so was not a legal officer. The evidence would be proper'if Las-
cells, instead of the people, was the party complaining of an injury.
If he were suing to recover damages for the assault, it would probably
24 Only a portion of the opinion is printed.
23 See State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409 (1871); also an arti-
cle on De Facto Office by K. R. Wallach, in 22 Political Science Quarterly,
450.
26 Only a portion of the opinion is printed.
Ch. 3)
113
FORM AND PROOF OF OFFICIAL ACTS.
an-
be a good answer to the action that he was not a legal officer, but a
wrongdoer, who might be resisted. And clearly he cannot recover
fees, or set up any right of property, on the ground that he is an of-
ficer de facto, unless he be also an officer de jure. Riddle v. County
of Bedford, 7 Serg. & R. (Pa.) 386; Keyser v. McKissan, 2 Rawle
(Pa.) 139; Fowler v. Beebe, 9 Mass. 231, 6 Am. Dec. 62; Green v.
Burke, 23 Wend. 490; People v. White, 24 Wend. 526. When one
inan attempts to exercise dominion over the person or property
of
other, it becomes him to see that he has an unquestionable title.
But it is equally well settled that the acts of an officer de facto,
though his title may be bad, are valid so far as they concern the pub-
lic, or the rights of third persons who have an interest in the things
done. Society could hardly exist without such a rule. I will only
refer to two or three cases where many of the others have been col-
lected. People v. Stevens, 5 Hill, 630; Green v. Burke, 23 Wend. 490;
Taylor v. Skrine, 2 Tread. Const: (S. C.) 696. Now here, although
Lascells is a witness, he is not a party; nor is this a proceeding for
his benefit. The people are prosecuting for a breach of the public
peace; and it is enough that Lascells was an officer de facto, having
color of authority. The rights of the creditor, the due administration
of justice, and the good order of society all concur in requiring that
he should be respected as an officer until his title has been set aside
by due process of law. The evidence offered was properly rejected.
*
* 27
PEOPLE ex rel. WINSTANLEY V, WEBER.
(Supreme Court of Illinois, 1878. S9 Ill. 347.)
This was an application in this court by Thomas Winstanley, as
city treasurer of the city of East St. Louis, for a writ of mandamus
against Herman G. Weber, county collector of St. Clair county, to
compel him to pay over to the relator moneys collected by him and
taxes belonging to the city of East St. Louis. The defendant's plea
presented the question of the validity of the relator's election.
Mr. Justice DICKEY delivered the opinion of the court.28
While the acts of an officer de facto are valid, in so far as the rights
of the public are involved, and in so far as the rights of third persons
5
27 Accord: Heath v. State, 36 Ala. 273 (1860); State v. Dierberger, 90 Mo.
369, 2 S. W. 286 (1886). See Commonwealth v. Kane, 108 Mass. 423, 11 Am.
Rep. 373 (1871).
See, also, Rodman v. Harcourt, 4 B. Mon. (Ky.) 224, 230 (1843), warrant
of justice de facto protects constable; Bedford v. Rice, 58 N. H. 446 (1878),
on action for penalty by town sufficient that health officers were officers de
facto only. See, also, Patterson v. Miller, 2 Metc. (Ky.) 493 (1859), ante,
p. 109, purchaser from de facto sheriff protected.
28 Only a portion of the opinion is printed.
FR.ADM.LAW.-8
114
(Part 1
ADMINISTRATIVE POWER AND ACTION.
**
*
having an interest in such acts are concerned, still, where a party sues
or defends in his own right as a public officer, it is not sufficient that
he be merely an officer de facto. To do this he must be an officer de
jure. As an officer de facto he can claim nothing for himself. Peo-
ple ex rel. Sullivan v. Weber, 86 Ill. 283.
The commission under which relator claims title recites that it is is-
sued in pursuance of an election held on the 16th day of April, 1878,
and the answer to relator's petition states that "it is from this pre-
tended election that relator obtains all the title he has to the pretended
office claimed by him." This allegation of the answer is confessed
by demurrer.
In the case of Stephens v. People ex rel., 89 III, 337, we have held
void the election through which relator claims to have acquired the
supposed office.
It follows that the relator is not a public
officer of the character held necessary to entitle him to the relief
sought. The application for a writ of mandamus must be denied.
*
*
* 29
*
*
29 Accord: Romero v. United States, 24 Ct. Cl. 331 (1889).
Ch.4)
115
NOTICE.
CHAPTER IV
NOTICE
SECTION 19.-IN TAXATION
BELL'S GAP R. CO. v. COMMONWEALTH OF
PENNSYLVANIA.
(Supreme Court of United States, 1890. 134 U. S. 232, 10 Sup. Ct. 533,
33 L. Ed. 892.)
1
*
In Error to the Supreme Court of Pennsylvania.
BRADLEY, J.
By the law of Pennsylvania, all moneyed
securities are subject to an annual state tax of three mills on the dollar
of their actual value, except bonds and other securities issued by corpo-
rations, which are taxed at three mills on the dollar of the nominal or
par value. If the treasurer of a corporation fails to make return of
its loans, as required by law, the Auditor General makes out and files
an account against the company, charging it with the tax supposed to
be due. This account, if approved by the State Treasurer, is served
upon the corporation, which must pay the tax within a specified time,
or show good cause to the contrary. If it objects to the tax, it is
authorized, in common with all others who are dissatisfied with the
Auditor's stated accounts, to appeal to the court of common pleas of
the county where the seat of government is (at present Dauphin coun-
ty), which appeal is served on the Auditor General, and by him trans-
mitted to the clerk of said court, to be entered of record, subject to
like proceedings as in common suits. A declaration is then filed on
the stated account in behalf of the state, and the cause is regularly
tried. In the present case, on failure of the company (the Bell's
Gap Railroad Company) to make return except under protest, the
auditor general made out an account against it, containing the follow-
ing charge:
Nominal value of scrip, bonds, and certificates of indebtedness own-
ed by residents of Pennsylvania, $539,000_tax, three mills. ... $1,617 00
The company thereupon tendered an appeal, which was filed in the
court of common pleas of Dauphin county, a declaration was filed
on the part of the state, and the cause was tried by the court, a jury
being waived. The appeal filed by the corporation (which was the
1 Only a portion of the opinion is printed.
116
(Part 1
ADMINISTRATIVE POWER AND ACTION.
basis of the proceedings in the court) contained eight grounds of ob-
jection to the tax. Most of these objections were founded upon the
Constitution or laws of Pennsylvania, and need not be noticed here.
The second objection, which refers to the Constitution of the United
States, was as follows, to wit: “(2) The report of the company's
treasurer was made under protest, and does not constitute an assess-
ment, and the tax sought to be imposed on so much of the company's
loans as the commonwealth claims to be held by residents of Penn-
sylvania for their nominal or face value, which varies from the market
value on account of the differing rates of interest, etc., is illegal, and
the said tax cannot be lawfully deducted by the company's treasurer
from the interest payable to the holders of said loans, and the common-
wealth's demands contravene section 1 of the fourteenth aniendment to
the Constitution of the United States, for the following reasons.
Among the reasons then assigned are (1) that the nominal value of
the bonds is not their real value; (2) that the owners of the bonds have
no notice, and no opportunity of being heard; (3) that the company is
taxed for property it does not own; (4) that the deduction of the tax
from the interest payable to the bondholders is taking their property
without due process of law, and denies to them the equal protection of
the laws, since all other personal property in the state is taxed at its
actual value, and upon notice to the owners. The seventh objection is
as follows: "() The tax is void, as impairing the company's obliga-
tion to its creditors."
As to want of notice to the owners of the bonds: What notice
could they have which the law does not give them? They know that
their bonds are to be assessed at their face value, and that a tax of
three mills on the dollar of that value will be imposed, and that they
will only be required to pay this tax when and as they receive the in-
terest. If the state may assess the tax upon the face value of the
bonds, notice in pais is not necessary. We think that there is nothing
in this objection which shows any infraction of the federal Constitu-
tion. It is urged that it is a taking of the bondholder's property with-
out due process of law. We must confess that we cannot see it in this
light. The process of taxation does not require the same kind of no-
tice as is required in a suit at law, or even in proceedings for taking
private property under the power of eminent domain. It involves no
violation of due process of law when it is executed according to cus-
tomary forms and established usages, or in subordination to the prin-
ciples which underlie them. We see nothing in the process of taxation
complained of which is obnoxious to constitutional objection on this
score. Stockholders in the national banks are taxed in this way, and
the method has been sustained by the express decision of this court.
Bank v. Com., 9 Wall. 353, 19 L. Ed. 701.
*
*
Ch. 4)
117
NOTICE.
HAGAR v. RECLAMATION DIST. NO. 108.
(Supreme Court of United States, 1884. 111 U. S. 701, 4 Sup. Ct. 663, 28
L. Ed. 569.)
Appeals from the United States Circuit Court for the District of
California.
FIELD, J.2 By an act of the Legislature of California, passed in
1868, a general system was established for reclaiming swamp and over-
flowed salt marsh and tide lands in the state, of which there is a large
quantity, and thus fitting them for cultivation. It will be sufficient for
the purposes of this suit to state the general features of the system
without going much into detail. It provides for the formation of rec-
lamation districts where lands of the kind stated are susceptible of one
mode of reclamation; such districts to be established by the board of
supervisors of the county in which the lands, or the greater part of
them, are situated, upon the petition of one-half or more of the holders
thereof. The petition being granted, the petitioners are required to
establish such by-laws as they may deem necessary for the work of
reclamation, and to keep the same in repair; and to elect three of their
number to act as a board of trustees to manage the same. This board
is empowered to employ engineers and others to survey, plan, and es-
timate the cost of the work, and of land needed for right of way, in-
cluding drains, canals, sluices, watergates, embankments, and material
for construction; and to construct, maintain, and keep in repair all
works necessary for the object in view. The trustees are required to
report to the board of supervisors of the county, or, if the district be in
more than one county, to the board of supervisors in each county,
the plans of the work and estimates of the cost, together with estimates
of the incidental expenses of superintendence and repairs. The super-
visors are then to appoint three commissioners, who are jointly to
view and assess upon each acre to be reclaimed or benefited a tax pro-
portionate to the whole expense, and to the benefits which will result
from the works; which tax is to be collected and paid into the county
treasury or treasuries, as the case may be, and placed to the credit of
the district, to be paid out for the work of reclaniation, upon the order
of the trustees, when approved by the board of supervisors of the coun-
ty. If the district be in more than one county, the tax is to be paid into
the treasury of the county in which the land assessed is situated. If
the original assessment be insufficient for the complete reclamation of
the lands, or if further assessments be required for the protection,
maintenance, and repair of the works, the supervisors may order ad-
ditional assessments upon presentation by the trustees of a statement of
the work to be done, and an estimate of its cost, such assessments to
be levied, and, if delinquent, collected, in the saine manner as the orig-
inal assessment. The commissioners are required to make a list of the
2 Only a portion of the opinion is printed.
118
(Part 1
ADMINISTRATIVE POWER AND ACTION.
amounts due from each owner of land in the district, and of the
amount assessed against the unsold land, and file the same with the
treasurer of the county in which the lands are situated. The lists thus
prepared are to remain in the office of the treasurer for 30 days or
longer, if so ordered by the trustees, during which time any person
can pay to the treasurer the amount assessed against his land; but if,
at the end of the 30 days, or the extended time, the tax has not been
paid, the treasurer is to transmit the list to the district attorney, who
is to proceed at once against the delinquents in the manner provided by
law for the collection of state and county taxes.
The Political Code of the state, which went into effect on the 1st of
January, 1873, embraces substantially the provisions of the act of 1868.
The changes are more in language than in substance. So far as sub-
sequent proceedings are concerned, the Code prescribes the rule. The
reclamation district No. 108, the plaintiff in the court below, was es-
tablished in September, 1870, under the act of 1868. It embraces over
74,000 acres of land, situated in the counties of Yolo and Colusa, and
forming a compact body susceptible of one mode of reclamation. The
trustees of the district originally estimated the cost of the reclamation
works, including incidental expenses, at $140,000, and the commission-
ers appointed assessed that sum upon the lands in the district. The
amount proved to be insufficient to complete the works, and, upon
the report of the trustees that the further sum of $192,000 was re-
quired for that purpose, the supervisors ordered that amount to be
assessed, and the commissioners appointed by them levied the assess-
ment upon the lands. This assessment became delinquent, and the ·
present suits were brought to obtain a decree that the several amounts
charged upon the lands of the appellant are liens upon them, and for
their sale to satisfy the charges. One of the suits is to enforce the
lien on the lands in Yolo county, and the other the liens on the lands
in Colusa county. On his motion they were both removed to the cir-
cuit court of the United States. That court held in each case that the
several sums assessed were valid liens upon the lands of the appellant
on which they were levied, and ordered that the lands be sold for the
payment of the amounts, with interest and costs. From these decrees
the appeals are taken.
The appellant contends that this fundamental principle was violated
in the assessment of his property, inasmuch as it was made without
notice to him, or without his being afforded any opportunity to be
heard respecting it; the law authorizing it containing no provision
for such notice or hearing. His contention is that notice and oppor-
tunity to be heard are essential to render any proceeding due process
of law which may lead to the deprivation of life, liberty, or property.
3 I. e., that there can be no proceeding against life, liberty, or property,
which may result in the deprivation of either, without the observance of
those general rules established in our system of jurisprudence for the securi-
ty of private rights.
Ch. 4)
119
NOTICE.
Undoubtedly where life and liberty are involved, due process requires
that there be a regular course of judicial proceedings, which imply
that the party to be affected shall have notice and an opportunity to
be heard; so, also, where title or possession of property is involved.
But where the taking of property is in the enforcement of a tax, the
proceeding is necessarily less formal, and whether notice to him is at
all necessary may depend upon the character of the tax, and the man-
ner in which its amount is determinable. The necessity of revenue
for the support of the government does not admit of the delay attend-
ant upon proceedings in a court of justice, and they are not required
for the enforcement of taxes or assessments. As stated by Mr. Jus-
tice Bradley, in his concurring opinion in Davidson v. New Orleans
[96 U. S. 97, 24 L. Ed. 616]: "In judging what is 'due process of
law' respect must be had to the cause and object of the taking, whether
under the taxing power, the power of eminent domain, or the power
of assessment for local improvements, or some of these; and, if
found to be suitable or admissible in the special case, it will be ad-
judged to be 'due process of law,' but if found to be arbitrary, op-
pressive, and unjust, it may be declared to be not 'due process of law.'
The power of taxation possessed by the state may be exercised upon
any subject within its jurisdiction, and to any extent not prohibited
by the Constitution of the United States. As said by this court: “It
may touch property in every shape, in its natural condition, in its
manufactured form, and in its various transmutations. And the
amount of the taxation may be determined by the value of the prop-
erty, or its use, or its capacity, or its productiveness. It may touch
business in the almost infinite forms in which it is conducted, in pro-
fessions, in commerce, in manufactures, and in transportation. Un-
less restrained by provisions of the federal Constitution, the power
of the state, as to the mode, form, and extent of taxation, is unlimited
where the subjects to which it applies are within her jurisdiction.”
State Tax on Foreign-Held Bonds, 15 Wall, 319, 21 L. Ed. 179.
Of the different kinds of taxes which the state may impose, there
is a vast number of which, from their nature, no notice can be given
to the taxpayer, nor would notice be of any possible advantage to him,
such as poll taxes, license taxes (not dependent upon the extent of his
business), and, generally, specific taxes on things or persons or occupa-
tions. In such cases the Legislature in authorizing the tax fixes its
amount, and that is the end of the matter. If the tax be not paid the
property of the delinquent may be sold, and he be thus deprived of his
property. Yet there can be no question that the proceeding is due pro-
cess of law, as there is no inquiry into the weight of evidence, or
other element of a judicial nature, and nothing could be changed by
hearing the taxpayer. No right of his is therefore invaded. Thus, if
the tax on animals be a fixed sum per head, or on articles a fixed sum
per yard or bushel or gallon, there is nothing the owner can do which
can affect the amount to be collected from him. So, if a person wil
120
(Part 1
ADMINISTRATIVE POWER AND ACTION.
a license to do business of a particular kind, or at a particular place,
such as keeping a hotel or a restaurant, or selling liquors or cigars
or clothes, he has only to pay the amount required by the law and
go into the business. There is no need in such cases for notice or
hearing. So, also, if taxes are imposed in the shape of licenses for
privileges, such as those on foreign corporations for doing business
in the state, or on domestic corporations for franchises, if the parties
desire the privilege they have only to pay the amount required. In
such cases there is no necessity for notice or hearing. The amount
of the tax would not be changed by it.
But where a tax is levied on property not specifically, but according
to its value, to be ascertained by assessors appointed for that purpose,
upon such evidence as they may obtain, a different principle comes in.
The officers in estimating the value act judicially, and in most of the
states provision is made for the correction of errors committed by
them, through boards of revision or equalization, sitting at designated
periods provided by law, to hear complaints respecting the justice of
the assessments. The law, in prescribing the time when such com-
plaints will be heard, gives all the notice required, and the proceeding
by which the valuation is determined, though it may be followed, if
the tax be not paid, by a sale of the delinquent's property, is due
process of law.4
In some states, instead of a board of revision or equalization, the
assessment may be revised by proceedings in the courts and be there
corrected if erroneous, or set aside if invalid; or objections to the
validity or amount of the assessment may be taken when the attempt
is made to enforce it. In such cases all the opportunity is given to the
taxpayer to be heard respecting the assessment which can be deemed
essential to render the proceedings due process of law.
In Davidson v. New Orleans, this court decided this precise point.
In that case an assessment levied on certain real property in New Or-
leans for draining the swamps of that city was resisted on the ground
that the proceeding deprived the owners of their property without due
process of law, but the court refused to interfere, for the reason that
the owners of the property had notice of the assessment and an op-
portunity to contest it in the courts. After stating that much misap-
prehension prevailed as to the meaning of the terms “due process of
law," and that it would be difficult to give a definition that would be
4 That the duties of assessors in estimating the value of property for pur-
poses of general taxation are judicial, see Barhyte v. Shepherd, 35 N. Y.
238, 250 (1866); Hassan v. Rochester, 67 N. Y. 528, 536 (1876); Stuart v.
Palmer, 74 N. Y. 183, 30 Am. Rep. 289 (1878); Williams v. Weaver, 75 N.
Y. 30, 33 (1878); Cooley, Tax'n, 266; Burroughs, Tax'n, § 102; Jordan v.
Hyatt, 3 Barb. (N. Y.) 275, 283 (1848); Ireland v. Rochester, 51 Barb.
(N. Y.) 416, 430, 431 (1868); State v. Jersey City, 24 N. J. Law, 662, 666
(1855); State v. Morristown, 34 N. J. Law, 445 (1871); Griffin v. Mixon,
38 Miss. 437, 438 (1860), note to official report of case.
Ch. 4)
121
NOTICE.
at once perspicuous and satisfactory, the court, speaking by Mr. Jus-
tice Miller, said that it would lay down the following proposition as
applicable to the case: "That whenever by the laws of a state, or by
state authority, a tax, assessment, servitude, or other burden is im-
posed upon property for the public use, whether it be for the whole
state or of some more limited portion of the community, and those
laws provide for a mode of confirming or contesting the charge thus
imposed in the ordinary courts of justice, with such notice to the per-
son, or such proceeding in regard to the property as is appropriate to
the nature of the case, the judgment in such proceedings cannot be
said to deprive the owner of his property without due process of law,
however obnoxious it may be to other objections.” 96 U. S. 97, 2+
L. Ed. 616.
This decision covers the cases at bar. The assessment under consid-
eration could, by the law of California, be enforced only by legal pro-
ceedings, and in them any defense going either to its validity or
amount could be pleaded. In ordinary taxation assessments, if not
altered by a board of revision or of equalization, stand good, and the
tax levied may be collected by a sale of the delinquent's property; but
assessments in California, for the purpose of reclaiming overflowed
and swamp lands, can be enforced only by suits, and, of course, to
their validity it is essential that notice be given to the tax-payer, and
opportunity be afforded him to be heard respecting the assessment.
In them he may set forth, by way of defense, all his grievances. Re-
clamation Dist. No. 108 v. Evans, 61 Cal. 104. If property taken upon
an assessment, which can only be enforced in this way, be not taken
by due process of law, then, as said by Mr. Justice Miller in the New
Orleans Case, these words as used in the constitution, can have no
definite meaning. The numerous decisions cited by counsel, some
of which are given in the note, as to the necessity of notice and of an
opportunity of being heard, are all satisfied where a hearing in court
is thus allowed.5
*
*
Overing v. Foote, 65 N. Y. 269 (1875); Stuart v. Palmer, 74 N. Y. 183
30 Am. Rep. 289 (1878); Cooley, Tax'n, 265, 266, 298; Thomas v. Gain, 35
Wich. 155, 164, 24 Am. Rep. 535 (1876); Jordan v. Hyatt, 3 Barb. (N. 1.)
275, 283 (1848); Wheeler v. Mills, 40 Barb. (N. Y.) 646 (1863); Ireland v.
Rochester, 51 Barb. (N. Y.) 416, 430, 431 (1868); State v. Jersey City, 2.1
N. J. Law, 662, 666 (1855); State v. Newark, 31 N. J. Law, 363 (1863);
State v. Trenton, 36 N. J. Law, 499, 504 (1873); State v. Elizabeth City, 37
N. J. Law, 357 (1875); State v. Plainfield, 38 N. J. Law, 97 (1875); State
v. Newark, 25 N. J. Law, 399, 411, 426 (1856); Patten v. Green, 13 Cal. 325
(1859); Mulligan v. Smith, 59 Cal. 206 (1881); Griffin v. Mixon, 38 Miss.
438 (1860); County of San Mateo v. Southern Pac. R. Co. (C. C.) 8 Sawy.
238, 13 Fed. 722 (1882); County of Santa Clara v. Same (C. C.) 9 Sairy.
165, 18 Fed. 385 (1883); Darling v. Gunn, 50 ill. 424 (1869). See, also,
Gatch v. City of Des Moines, 63 Iowa, 718, 18 N. W. 310, 311, 313 (1884);
Fallbrook Irrigation District V. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41
L. Ed. 369 (1896), note to official report of case.
The leading case on the requirement of notice is Stuart v. Palmer, 74 N.
122
(Part 1
ADMINISTRATIVE POWER AND ACTION.
PITTSBURGH, C. C. & ST. L. RY, CO. v. BACKUS.
(Supreme Court of United States, 1894. 154 U. S. 421, 14 Sup. Ct. 1114,
38 L. Ed. 1031.)
*
*
In Error to the Supreme Court of the State of Indiana.
Action to restrain the collection of taxes. The court rendered judg-
ment for defendants, which, on appeal, was affirmed by the Supreme
Court of the state. 133 Ind. 625, 33 N. E. 432.
Mr. Justice BREWER delivered the opinion of the court. 6
It is contended specifically that the act fails of due process of law
respecting the assessment, in that it does not require notice by the
state board at any time before the assessments are made final; and
several authorities are cited in support of the proposition that it is
essential to the validity of any proceeding by which the property
of the individual is taken that notice níust be given at some time and
in some form before the final adjudication. But the difficulty with
this argument is that it has no foundation in fact. The statute names
the time and place for the meeting of the assessing board, and that
is sufficient in tax proceedings; personal notice is uinnecessary.
In State Railroad Tax Cases, 92 U. S. 610, 23 L. Ed. 663, are these
words, which are also quoted with approval in the Kentucky Railroad
Tax Cases, 115 U. S. 321, 6 Sup. Ct. 57, 29 L. Ed. 414: "This board
has its time of sitting fixed by law. Its sessions are not secret. No
obstruction exists to the appearance of any one before it to assert a
right, or redress a wrong; and, in the business of assessing taxes, this
is all that can be reasonably asked."
Again, it is said that the act does not require the state board to
grant to the railroad companies any hearing or opportunity to be heard
for the correction of errors at any time after the assessments have
been agreed upon by the board, and before they are made final and
absolute, or before the final adjournment of the board, and also that
it gives to the board arbitrary power to deny to plaintiffs any hear-
ing at any time; but the fact and the law are both against this con-
tention. The plaintiff did appear before the board, and was heard,
by its counsel and through its officers; and the construction placed
Y. 183, 30 Am. Rep. 289 (1878). See, also, Central of Georgia Ry. v. Wright,
207 U. S. 127, 28 Sup. Ct. 47, 52 L. Ed. 134 (1907).
As to notice before distraining goods for nonpayment of taxes, see Cooley,
Taxation, pp. 441-143.
Notice before the assessment is not necessary, if there is an opportunity
to contest the assessment before the board of review. Felsenthal v. John-
son, 104 Ill. 21 (1882).
See, also, Corcoran v. Board of Aldermen of Cambridge, 199 Mass. 5, 85
N. E. 155, 18 L. R. A. (N. S.) 187 (1908): "If the right to a hearing is
given upon an appeal, or upon an application for an abatement, it is suffi-
cient."
6 Only a portion of this case is printed.
Ch. 4)
123
NOTICE.
by the Supreme Court of the state on the act-a construction which is
conclusive upon this court-is that the railroad companies are given
the right to be present and to be heard.
It is urged that the valuation as fixed was not announced until
shortly before the adjournment of the board, and that no notice was
given of such valuation in time to take any steps for the correction
of errors therein. If by this we are to understand counsel as claim-
ing that there must be notice and a hearing after the determination
by the assessing board, as well as before, we are unable to concur with
that view. A hearing before judgment, with full opportunity to present
all the evidence and the arguments which the party deems important,
is all that can be adjudged vital. Rehearings, and new trials, are not es-
sential to due process of law, either in judicial or administrative pro-
ceedings. One hearing, if ample, before judgment, satisfies the demand
of the constitution in this respect. It not infrequently happens in this
as in all other courts that decisions are announced and judgments en-
tered on the last day of the term, and too late for the presentation or
consideration of any petitions for rehearing or motions for a new trial.
Will any one seriously contend that a judgment thus entered is entered
in defiance of the requirements of due process of law, and that a party,
having been fully heard once upon the merits of his case, is deprived
of the constitutional protection because he is not heard a second time?
Equally fallacious is the contention that because to the ordinary
taxpayer there is allowed not merely one hearing before the county
officials, but also a right of appeal with a second hearing before the
state board, while only the one hearing before the latter board is given
to railroad companies in respect to their property, therefore the latter
are denied the equal protection of the laws. If a single hearing is
not due process, doubling it will not make it so; and the power of a
state to make classifications in judicial or administrative proceedings
carries with it the right to make such a classification as will give to
parties belonging to cne class two hearings before their rights are
finally determined, and to parties belonging to a different class only
a single hearing. Prior to the passage of the court of appeals act by
Congress, in 1891, a litigant in the Circuit Court, if the amount in dis-
pute was less than $5,000, was given but a single trial, and in that
court; while, if the amount in dispute was over that sum, the defeated
party had a right to a second hearing and in this court. Did it ever
enter into the thought of any one that such classification carried with
it any denial of due process of law?
*
124
(Part 1
ADMINISTRATIVE POWER AND ACTION.
STATE RAILROAD TAX CASES.
(Supreme Court of United States, 1875. 92 U. S. 575, 23 L. Ed. 663.)
*
MILLER, J.? * There is, however, an objection urged to the
conduct of the board of equalization, resting on the action of the board
in these particular cases, in which they are charged with a gross vio-
lation of the law to the prejudice of the corporations, which we will
consider.
The statute requires the proper officers of the railroad companies to
furnish to the State Auditor a schedule of the various elements already
mentioned as necessary in applying the statutory rule of valuation.
It is charged that the board of equalization increased the estimates
of value so reported to the Auditor, without notice to the companies,
and without sufficient evidence that it ought to be done; and it is stren-
uously urged upon us that for want of this notice the whole assessment
of the property and levy of taxes is void.
It is hard to believe that such a proposition can be seriously made.
If the increased valuation of property by the board without notice is
void as to the railroad companies, it must be equally void as to every
other owner of property in the state, when the value assessed upon
it by the local assessor has been increased by the board of equaliza-
tion. How much tax would thus be rendered void it is impossible to
say. The main function of this board is to equalize these assessments
over the whole state. If they find that a county has had its property
assessed too high in reference to the general standard, they may re-
duce its valuation; if it has been fixed too low, they raise it to that
standard. When they raise it in any county, they necessarily raise
it 'on the property of every individual who owns any in that county.
Must each one of these have notice and a separate hearing? If a rail-
road company is by law entitled to such notice, surely every individual
is equally entitled to it. Yet if this be so, the expense of giving notice,
the delay of hearing each individual, would render the exercise of
the main function of this board impossible. The very moment you
come to apply to the individual the right claimed by the corporation
in this case, its absurdity is apparent. Nor is there any hardship in
the matter. This board has its time of sitting fixed by law. Its ses-
sions are not secret. No obstruction exists to the appearance of any
one before it to assert a right, or redress a wrong; and, in the business
of assessing taxes, this is all that can be reasonably asked.
As we do not know on what evidence the board acted in regard
to these railroads, or whether they did not act on knowledge which
they possessed themselves, and as all valuation of property is more
or less matter of opinion, we see no reason why the opinion of this
7 Only a portion of the opinion of Mr. Justice Miller is printed.
Ch. 4)
125
NOTICE.
court, or of the Circuit Court, should be better, or should be sub-
stituted for that of the board, whose opinion the law has declared to
be the one to govern in the matter.
*
*
*8
KUNTZ v. SUMPTION.
(Supreme Court of Indiana, 1889. 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655.)
Appeal from circuit court, Randolpli county.
ELLIOTT, C. J. The board of equalization of Randolph county en-
tered an order reading thus : "On motion, the board increased the as-
sessment of Peter Kuntz on personal property twenty thousand dol-
lars." Prior to the meeting of the board Kuntz had listed his prop-
erty for taxation. He was subpoenaed before the board, and testified
as a witness, but did so under protest.
We have given to the principal question in this case much and care-
ful study, and we are compelled to hold that the statutory provisions
concerning the authority of the county board of equalization to in-
crease the valuation of the property of an individual taxpayer listed
by him for taxation are unconstitutional. We limit our decision to
this point, and mark the limit as distinctly and definitely as we can.
We do not affirm that the provisions of the statute conferring authori-
ty upon the county board to change the general levy are invalid, nor
do we affirm that they are invalid in so far as they confer authority
to make orders affecting the taxpayers generally. We do, however,
affirm that they are invalid in so far as they assume to confer au-
thority upon the board to conclusively change the valuation placed
upon property by an individual taxpayer, or to add property to his list.
We are satisfied that the statute is in conflict with the Constitution,
for the reason that it assumes to confer authority upon the board to
add to a citizen's taxes without giving him an opportunity to be heard,
and thus denies him due process of law.
Our judgment is that after a citizen has listed his property no change
in the list can be compulsorily made by an officer or tribunal whose de-
cision is final, until, by due process of law, he has had an opportunity
to vindicate the correctness of his list, or resist an attempt to increase
the valuation. The presumption is that men obey the law and act in
good faith, and under this long-settled rule it must be held that, until
the contrary is shown, the taxpayer is entitled to have his list accepted
as correct and just. The contrary cannot be legally and conclusively
66*
*
*
8 See Illinois Revenue Law 1898, § 35 :
The assessment of any
class of property, or of any township or part thereof, or any portion of the
county, shall not be increased until the board shall have notified not less
than fifty of the owners of property in such township, or part thereof, or
portion of the county of such proposed increase, and given them, or any one
representing them, or other citizens of said territory, an opportunity to be
heard."
126.
(Part 1
ADMINISTRATIVE POWER AND ACTION,
shown, unless he has an opportunity to be heard, and this opportunity
he cannot have unless notice is given him before a conclusive decision
is made. The statute does not provide for notice to taxpayers whose
taxes it is proposed to increase, and this infirmity destroys it in so far
as it affects such citizens. It is not enough that in fact the taxpayer
does have some notice or information, for the law must provide for
notice, or else no legal notice can be given. A man may be sub-
pænaed as a witness in an action pending against him, but unless he
is summoned or notified as a party under some law authorizing a
summons or a notice the proceedings are utterly void. A man may
be served with a written notice that a petition for a ditch is pending
but, if there is no law authorizing notice, it will be unavailing. A no-
tice not authorized by law is in legal contemplation no notice. We do
not assert that the proceedings would be void where there is some
notice, although not given in strict conformity to law; for we know
that a defective notice, assumed to be given under a statute, will be
sufficient to uphold jurisdiction as against a collateral attack. Mont-
gomery v. Wasem, 116 Ind. 343, 15 N. E. 195 (this term); Hume v.
Conduitt, 76 Ind. 598.
But there must be an assumption of the right to give notice, and
there must be some law authorizing this assumption. At all events,
there must be color of right, and without a law authorizing notice
there can be none. We approve, as fully as language can do, the doc-
trine of former decisions, that the legislature has ample authority to
prescribe what the notice shall be. Johnson v. Lewis, 115 Ind. 490,
18 N. E. 7; Garvin v. Daussman, 114 Ind. 429, 16 N. E. 826, 5 Am.
St. Rep. 637; Carr v. State, 103 Ind. 548, 3 N. E. 375; Hobbs v.
Board, 103 Ind. 575, 3 N. E. 263.
We affirm, too, that whether the notice is by publication or by er
sonal service, it will sustain jurisdiction, provided there is back of it
some law providing for notice. While affirming these various propo-
sitions, we also affirm that, where individual property rights are affect-
ed, there must be provision for notice made by law before there can
be a final and conclusive adjudication. Only the law can prescribe
the form of the notice, and the law must provide for it. Where, there-
fore, individual rights are concerned, and the matter is one upon
which a party is entitled to be heard, a proceeding conclusively and
finally disposing of individual property rights will be void, unless
founded upon a law providing for notice of some kind.' Where the
9 That the requirement of notice will be implied, see Harlow v. Pike, 3
Greenl. (Me.) 438 (1825); also Corcoran v. Board of Aldermen of Cam-
bridge, 199 Mass. 5, 85 N. E. 155, 18 L. R. A. (N. S.) 187 (1908). Moreover,
see Detroit, etc., Ry. Co. v. Osborn, 189 U. S. 383, 391, 23 Sup. Ct. 540, 543,
47 L. Ed. 860 (1903): "The cause was submitted on petition and answer, and
the petition alleged that notice was given by respondent (the commissioner
of railroads) to relator and the Union Terminal Association, and the hear-
ing had, at which relator's representative objected to the making of said or-
der.' It is therefore not open to the plaintiff in error (the railway) to com-
plain that the statute did not provide for notice." Also, see page 100, uote.
Ch. 4)
127
NOTICE.
matter to be decided is one of pure discretion, and the tribunal decides
upon its own judgment, unaided by evidence, then notice is not essen-
tial. State v. Johnson, 105 Ind. 463, 5 N. E. 553; Fries v. Brier, 111
Ind. 65, 11 N. E. 958; Trimble v. McGee, 112 Ind. 307, 14 N. E. 83;
Weaver v. Templin, 113 Ind. 298, 14 N. E. 600.
But in adding to property listed by the taxpayer, or in increasing the
valuation put upon listed property by him, a board of equalization does
not exercise arbitrary power or unrestricted discretion. On the con-
trary, it must be guided by the law and the facts, and has no right to
add to the list of the taxpayer property he does not own, nor has it au-
thority to increase the valuation of property without giving the tax-
payer legal notice; thus affording him an opportunity to adduce evi-
dence or furnish information. It is a serious matter to charge a per-
son with fraudulently or falsely listing his property; and to add to his
list, or to increase the valuation of property, imposes upon him a
burden, for it deprives him of property in the form of money. That
notice is required in all cases where individual property rights are
involved, and the matter is not one of pure discretion, has been again
and again decided by cur own and other courts. Strosser v. City, 100
Ind. 443; Troyer v. Dyar, 102 Ind. 396, 1 N. E. 728; Jackson v.
State, 103 Ind. 250, 2 N. E. 742; Johnson v. Lewis, 115 Ind. 490, 18
N. E.; Board v. Gruver, 115 Ind. 225, 17 N. E. 290, and cases cited.
That the notice must be authorized by law is affirmed by many cases.
The rule is thus stated in one case: “It is not enough that the owners
may by chance have notice, or that they may as a matter of favor have
a hearing. The law must require notice to them, and give them a right
to a hearing, and an opportunity to be heard.” Stuart v. Palmer, 74
N. Y. 188, 30 Am. Rep. 289.
Judge Cooley, in speaking of the correction of tax lists, says: “It
is a fundamental rule that in judicial or quasi judicial proceedings,
affecting the rights of the citizen, he shall have notice, and be given
an opportunity to be heard, before any judgment, decree, order, or
demand shall be given and established against him. Tax proceedings
are not in the strict sense judicial, but they are quasi judicial, and, as
they have the effect of a judgment, the reasons, which require notice
of judicial proceedings are always present when the conclusive steps
are to be taken.” Cooley, Tax'n (2d Ed.) 363. An author who has
recently written on the subject concludes his discussion by saying:
“There is really but one logical and consistent position in the matter,
and that is that a statute that does not provide for notice is invalid.”
Lewis, Em. Dom. $ 368. A very thorough discussion of the question
will be found in Johnson v. Railroad Co., 23 Ill. 202. We need not,
however, look beyond our own reports, for our own decisions declare
that the statute itself must provide for notice. Campbell v. Dwiggins,
83 Ind. 473; Jackson v. State, 104 Ind. 516, 3 N. E. 863; Fries v.
Brier, 111 Ind. 65, 11 N. E. 958; Johnson v. Lewis, supra.
We said in Jackson v. State, supra, that “the notice must assume to
128
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ADMINISTRATIVE POWER AND ACTION.
be such as the law requires, but, in order to repel a collateral attack,
it need not be a valid notice"; and in Garvin v. Daussman, supra, we
said: "It is without doubt essential to the validity of every law under
which proceedings may be had for the taking of property, or to im-
pose a burden upon it which may result in taking it, that the law make
provision for giving some kind of notice, at some stage in the pro-
ceeding." The ultimate conclusion which we reach is that where a
conclusive decision is authorized the statute itself must provide for
notice, and secure it to the taxpayer, not as matter of favor, but as a
matter of right.
We agree with the appellee's counsel that the board of equalization
is not a judicial tribunal, in the strict sense of the term; but, while
this is true, it is also true that it possesses functions of a judicial na-
ture. Wilkins v. State, 113 Ind. 514, 16 N. E. 192. Judicial powers
are, as we said in the case cited, lodged in the courts; and, where the
Constitution distributes the judicial power, it can only be exercised
by the tribunal named by the constitution, and constituted as the Con-
stitution provides. Greenough v. Greenough, 11 Pa. 489, 51 Am. Dec.
567; Chandler v. Nash, 5 Mich. 409; Alexander v. Bennett, 60 N. Y.
204; Van Slyke v. Insurance Co., 39 Wis. 390, 396, 20 Am. Rep. 50;
Gibson v. Emerson, 7 Ark. 172; Gregory v. State, 94 Ind. 384, 48 Am.
Rep. 162; Shoultz v. McPheeters, 79 Ind. 373.
But while we hold that the authority of the board of equalization is
not judicial, yet we also hold that it is in its nature so far judicial as
to require notice to one whose individual rights are directly affected.
We are inclined to concur with appellee's counsel that the judgment
of the board is conclusive, but to that proposition we add that it is
only so where there is jurisdiction, and that notice to one whose list
is to be added to or whose valuation is to be increased is essential to
give jurisdiction. School Dist.'s Appeal, 56 Pa. 315; Osborn v. In-
habitants, 6 Pick. (Mass.) 98; Hughes v. Kline, 30 Pa. 227; Macklot
v. City, 17 Iowa, 379; Deane v. Todd, 22 Mo. 90; McIntyre v. Town,
43 Wis. 620.
The fact that the judgment is conclusive supplies a strong reason
for holding that the taxpayer should have an opportunity to be heard,
and that he should be heard before his list or his valuation is set aside
or changed. The power to hear and determine, where there is a question
admitting of controversy, and the entire matter is not one of absolute
and arbitrary discretion, implies that, in reason and justice, the law
should, by making provision for notice, give the parties an opportunity
to be heard; for otherwise it cannot be justly said that there is due
process of law.
Thus far we have proceeded upon the assumption that the statute
does not provide for notice to the individual taxpayer whose list is
to receive additions, or whose valuation is to be increased, and, if this
assumption cannot be made good, our reasoning is invalid. It is,
however, not difficult to prove the validity of our assumption. The
Ch. 4)
129
NOTICE.
statute itself supplies the requisite proof. It does provide notice suf-
ficient for two classes of judgments, but for no others. It provides for
notice sufficient as to all general changes in the levy, and sufficient as
to all who have complaints to make, and over these matters jurisdiction
arises when the notice is given as the statute directs. But there is no
provision for notice to the individual taxpayer whose list is to be
added to or whose valuation is to be increased. Its provisions on the
subject of notice are these: "Two weeks' previous notice of the time,
place, and purpose of such meeting shall be given by the county au-
ditor in some newspaper of general circulation, printed and published
in the county; or, if no newspaper be published in the county, then
by posting up notices in three public places in each township in the
county." Section 6397, Rev. St. 1881.
This notice, it is obvious, cannot require every taxpayer in the county
to be in attendance at the meeting of the board to see that no additions
are made to his list. As additions to his list affect him as an individual,
he is entitled to notice as an individual. He is not within the scope of
the statute, since he is not bound to assume that there will be any
change in the verified list given by him to the assessor. His rights are
distinct from those of the public, and from the rights of those persons
who have complaints to make. Those who believe themselves wronged
by having property listed to them that they do not own, or who believe
that their property has been overvalued, are actors; they move, they
take the initiatory step, and they must come before the board under
the notice prescribed by the statute. But with the taxpayer whose as-
sessment is to be increased it is otherwise. He is not the actor; he
does not take the initiatory step; but, on the contrary, he is passive
and inactive until brought before the board by notice. He is not un-
der any legal obligation to move until notice comes to him. Indeed,
he cannot move if he is content with his list and assessment, for there
is nothing for him to do. The taxpayer who has a complaint to make
occupies a position very similar to that of the plaintiff in an ordinary
action, while the person whose taxes are to be increased is in a posi-
tion very like that of a defendant. We must hold that a taxpayer is
entitled to notice, or else we must hold that he is bound, at his peril,
to keep vigilant watch of the proceedings, lest property he does not
own be assessed to him, or the valuation of his listed property be in-
creased. In the absence of notice to him as an individual, he is not
bound to exercise any such vigilance. Claybaugh v. Railway Co., 108
Ind. 262, 9 N. E. 100; Munson v. Blake, 101 Ind. 78.
It would be almost as unjust to compel such a taxpayer to be con-
stantly on the watch during the meeting of the board as to compel a
defendant who has failed to pay a note, violated a covenant, or com-
mitted a trespass to watch the dockets of the court during term time.
The notice does no more than inform the public that the board will
be in session at a designated time and place, and no one is bound to act
FR. ADM. LAW.-9
130
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ADMINISTRATIVE POWER AND ACTION.
upon the notice further than to present complaints or resist general
changes in the levy. Certainly no one is bound to know that a com-
plaint will be preferred against him affecting his individual rights. If
one taxpayer is bound to keep watch during the session of the board,
so are all, and the result would be that the meetings of the board would
be thronged with taxpayers, or else their rights be at the mercy of the
board. The organic law to which all statutes must yield does not in-
tend that such a thing shall ever occur, for it requires notice to each
person whose individual property rights may become the subject of
investigation and final adjudication. This is a fundamental principle, ,
ruling all the departments of government. A decision of a judicial
nature, conclusively deciding upon individual property rights of a citi-
zen, and imposing a burden upon him, can only be given in a proceed-
ing of which, before a final and conclusive judgment is reached, the
citizen has notice, for without such notice there cannot be due process
of law. A decision not final, but subject to review, may not neces-
sarily require notice; but a final decision must be based on a notice
provided for by law.
Judgment reversed, with instructions to overrule the demurrer to
the complaint.10
HULING v. EHRICH.
(Supreme Court of Illinois, 1899. 183 Ill. 315, 57 N. E. 636.)
Error to circuit court, Kankakee county.
Suit by Truman Huling against F. C. Ehrich. Bill dismissed, and
complainant brings error. Reversed.
CARTWRIGHT, C. J. Truman Huling, plaintiff in error, is a resident
and taxpayer of Kankakee township. In the year 1897 he made and
delivered to the assessor a list of his personal property in compliance
with the statute, which included $5,000 in moneys and credits. This
list was accepted by the assessor, and the total value, as fixed by the
assessor and placed in his books, was $5,595, including said amount
of moneys and credits. The town board of review met June 30,
1897, and increased this assessment from $5,595 to $10,595 without
any notice to Huling, and without his knowledge or consent, and made
this record of their action : "The assessment of Truman Huling is
raised to the amount of $10,000 on his moneys and credits, which the
board deems to be about right.” On the assessments, so increased, of
$10,595, a tax of $1,100.83 was levied.
Huling first learned of the increase when the collector attempted to
collect the tax, and he then tendered $581.33, the proportionate amount
of the tax on the assessment as first made by the assessor, and filed his
10 Contra : State y. New Lindell Hotel Co., 9 Mo. App. 450 (1881).
Ch. 4)
1
131
NOTICE.
bill against F. C. Ehrich, the collector, defendant in error, to enjoin
the collection of $519.50, the portion of the tax levied on the increase
of $5,000 made by the town board. The bill was answered, and the
answer admitted that the tax was extended on the valuation as made
by the board of review, and admitted the tender, but denied that the
board of review acted without notice, and averred that the valuation
was not inequitable. On a hearing, the facts alleged in the bill were
proved, but the court dismissed the bill, at complainant's cost, for
want of equity.
The township board of review was only authorized to act and raise
complainant's assessment after giving notice in writing to him or his
agent. Rev. St. c. 120, § 86. He made out and delivered to the asses-
sor a list of his taxable property, which was accepted by the assessor.
If it was proposed to increase his assessment, he was entitled to a hear-
ing, and an opportunity to show the facts, and the board had no power,
without notice to him, to increase such assessment. He had no knowl-
edge of the increase until the collector attempted to collect the tax.
The board had no jurisdiction to reassess his property, and in such case
equity will restrain the collection of the illegal tax on the ground that
the assessment is void as to the increase. Cleghorn v. Postlewaite, 43
I11. 428; Darling v. Gunn, 50 Ill. 424; McConkey v. Smith, 73 III.
313; Bank v. Cook, 77 111. 622; Camp v. Simpson, 118 I11. 224, 8 N. E.
308.
It is argued that, since complainant asked the aid of a court of equity
and was bound to do equity, he must fail, unless he showed that the
assessment was raised above the fair valuation of all his taxable prop-
erty. He tendered all the tax that had been levied by authority of law,
and that is all equity would require him to pay.
It is also urged that the court properly denied relief, because no wit-
ness testified that the amount tendered was the proportionate share of
the tax levied on the assessor's valuation. It is said that the court
could not determine what proportion of the tax was illegal, because no
witness testified to the amount. It was not necessary that there should
be any such proof. The question of the proportionate amount of the
tax levied on a valuation of $10,595, arising from the original assess-
ment of $5,595 and the increase of $5,000, was a mere matter of com-
putation, and not a fact to be proved by witnesses.
The decree of the circuit court is reversed, and the cause remanded,
with directions to enter a decree in accordance with the prayer of the
bill. Reversed and remanded.
132
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ADMINISTRATIVE POWER AND ACTION.
SECTION 20.-IN THE EXERCISE OF THE POLICE POWER
WAYE V. THOMPSON.
L. R. 15
(Supreme Court of Judicature, Queen's Bench Division, 1885.
Q. B. Div. 342.)
Case stated by justices under St. 20 & 21 Vict. c. 43, on the hearing
at petty sessions of an information preferred by the appellant, an
inspector of nuisances, against the respondent, a butcher, under St.
38 & 39 Vict. c. 55, § 117.11
Upon the hearing 12 the following facts were proved, viz.: That the
meat was in the possession of and exposed for sale by the respondent,
and was intended for the use of nan; that it was seized by the appel-
lant on the 21st of October, 1884, and on the same day taken before
Thomas Barlow Mafsicks, Esq., a justice of the peace, and it appearing
to him on an ex parte statement not on oath that such meat was dis-
eased, unsound, unwholesome, and unfit for the food of man, he did
thereby condemn the meat, and ordered the same to be destroyed or so
disposed of to prevent the same from being exposed for sale or used
for the food of man. On the following day, however, the said justice,
at the request of the respondent, directed the appellant not to destroy
the carcase of meat until the owner could have it inspected by a
11 English Public Health Act, 1875, 38 Vict. c. 55:
“Sec. 116. Any medical officer of health or inspector of nuisances may at
all reasonable times inspect and examine any animal, carcase, meat, poultry,
game, flesh, fish, fryit, vegetables, corn, bread, flour, or milk exposed for
sale, or deposited in any place for the purpose of sale, or of preparation for
sale, and intended for the food of man, the proof that the same was not ex-
posed or deposited for any such purpose, or was not intended for the food of
man, resting with the party charged; and if any such animal, carcase, meat,
poultry, game, flesh, fruit, vegetables, corn, bread, flour or milk appears to
such medical officer or inspector to be diseased or unsound or unwholesome,
or unfit for the food of man, he may seize and carry away the same himself
or by an assistant, in order to have the same dealt with by a justice.
“Sec. 117. If it appears to the justice that any animal, carcase, meat, poul-
try, game, flesh, fish, fruit, vegetables, corn, bread, flour, or milk so seized
is diseased or unsound or unwholesome or unfit for the food of man, he shall
condemn the same, and order it to be destroyed or so disposed of as to pre-
vent it from being exposed for sale or used for the food of man; and the
person to whom the same belongs or did belong at the time of exposure for
sale, or in whose possession or on whose premises the same was found, shall
be liable to a penalty not exceeding twenty pounds for every animal, carcase,
or fish, or piece of meat, flesh, or fish, or any poultry or game, or for the
parcel of fruit, vegetables, corn, bread, or flour, or for the milk so con-
demned, or at the discretion of the justice, without the infliction of a fine,
to imprisonment for a term of not more than three months."
12 It was stated by counsel during argument that a summons had issued
against the respondent, calling on him to show cause why the penalty under
section 117 should not be inficted.
Ch. 4)
133
NOTICE. .
veterinary surgeon, which inspection was accordingly made by wit-
nesses on respondent's behalf.
The appellant called witnesses to prove that the meat was diseased,
unsound, unwholesome, and unfit for the food of man. The respondent
thereupon proposed to call the witnesses who by the permission of the
said justice had inspected the meat on his, the respondent's, behalf, and
also other witnesses, some of whom had seen the cow before it was
slaughtered and after it had been dressed, and others who had seen
other portions of the carcase of the cow from which the alleged dis-
eased meat had been cut, some before and others after the same hac
been condemned by the said justice (including medical and veterinary
men) and other witnesses who alleged they had partaken of meat from
the same animal. This testimony was objected to by the appellant on
the following grounds:
(1) That the question of the ineat being diseased, unsound, unwhole-
some, and unfit for the food of man had been already adjudicated upon
and decided in the affirmative by a justice of the peace on an ex parte
proceeding, evidence of which had been presented to the justices.
(2) The evidence to the contrary should not be admitted by the
justices.
(3) That the evidence furnished to them by the appellant was suf-
ficient to justify a conviction of the respondent under the 117th sec-
tion of the Public Health Act, 1875, for the offences alleged against
him.
The justices overruled the objections and heard the evidence of the
defendant's witnesses, which satisfied the justices that the meat was
not diseased, but was wholesome, sound, and fit for the food of man,
and the justices gave their decision against the appellant, and ordered
him to pay the respondent's costs.
The question upon which this case was stated for the opinion of
the court was whether the justices should have permitted evidence to
be given by the respondent as to the state and condition of the said meat
at the time it was ordered to be destroyed by the said Thomas Barlow
Mafsicks, 13
MANISTY, J. (after stating the facts as they appeared in the case).
The information laid was no doubt the groundwork of a summons,
and we are told that the practice is to issue a sunnons calling on the
respondent to shew cause why he should not be sent to prison or fined.
On the hearing of that matter—and not of the information as alleged
in the case, which is imperfectly stated—the magistrates were called
upon to decide whether or not the meat was fit for human food, and the
question is whether they were justified in admitting the evidence as to
the state of the neat.
The cases of White v. Redfern, 5 Q. B. D. 15, and Vintner v. Hind,
10 Q. B. D. 63, do not assist us. White v. Redfern decides that a
13 The arguments of counsel are omitted.
134
(Part 1
ADMINISTRATIVE POWER AND ACTION.
justice may, without hearing evidence on behalf of the butcher, con-
demn the meat; but that does not help us in the present question, viz.,
when a man is in peril of being sent to prison or fined, is he to be
heard or not? It is contrary to first principles to say that a man can
be sent to prison or convicted without being heard. The respondent
was not heard, and it was not necessary that he should be heard, when
the case was before the magistrate in the first instance. That magis-
trate was satisfied that it was made to appear to him the meat was dis-
eased and he condemned it. If the respondent is not allowed to give
evidence when sumnioned to show cause why he should not be sent to
prison or fined, he has not an opportunity of being heard at all, and it
would be the first case I ever knew of a man being subject to imprison-
ment or fine, without having been heard. I am clearly of opinion that
the magistrates were right in receiving the evidence.14
1
CITY OF PHILADELPHIA V. SCOTT.
(Supreme Court of Pennsylvania, 1876. 81 Pa. 80, 22 Am. Rep. 738.)
*
)
**
AGNEW, C. J.15 * * * The only question, therefore, remaining is
whether the act has furnished a constitutional mode of proceeding, to
bind the owner of the land to the payment of the expense of the repairs..
The following are all its material provisions: “It shall be the duty of
the commissioners * upon complaint by any person owning prop-
erty fronting upon such river, or liable to be damaged by the over-
flow of the same, that said banks, or any part thereof, are out of repair,
or in an unsafe or insecure condition, to give notice forthwith to the
owner or owners of such part or portion to repair the same within
forty-eight hours after such notice,
and in case such owner
or owners shall neglect or refuse to cause such repairs to be made with-
in the time aforesaid
it shall be the duty of such commis-
sioners to cause the said banks to be well and thoroughly repaired, etc.,
and they shal enter the same as a lien against the said premises and the
owners thereof." The law then provides for a scire facias to enforce
payment, and declares “that upon the trial of such action the said de-
fendant shall only be permitted to aver and prove in defence that the
lien, in whole or in part, has been paid since the same was filed, and
that all matters necessary for a recovery on part of the plaintiffs shall
be considered as proved by the production of the lien and scire facias
thereon at the time of trial."
The law, it will be seen, provides no mode of determining the neces-
sity for repair, not even the judgment of the commissioners, for they
14 See Cooper v. Wandsworth Board of Works, 14 C. B. (N. S.) 180 (1863),
post, p. 252.
See, also, Vestry of St. John's v. Hutton, [1897] 1 Q. B. 210.
15 Only a portion of the opinion of Chief Justice Agnew is printed.
Ch. 4)
135
NOTICE.
are bound, on complaint, forthwith to give notice, and the owner is
bound, within forty-eight hours after notice, to make the repairs, and,
on default, the commissioners shall do the work at his expense. Wheth-
er the bank actually needs repair, or the injury complained of, if any, is
a total destruction of the bank, demanding reconstruction, or a mere
repair, which the owner is bound to do, is not to be ascertained before
the liability is settled upon liim. He is to pay at all events, and this
case itself is evidence of the necessity of the provision to determine the
nature of the thing complained of, for we have a finding of $6,445.66
against the defendant, a sum which looks more like the price of recon-
struction than of repair. Repair is all this law provides for. Perhaps
some allowance might be made, and the clause requiring the commis-
sioners "to cause the banks to be well and thoroughly repaired” might
be interpreted as inferentially requiring an examination and decision
upon the duty of repairing before they proceeded to do it. But we are
inet by the proviso, which forbids any defence but payment. There
can be no inquiry into the fact whether the commissioners actually
did determine it to be a case of necessary repair, whilst they may lave
gone on different grounds. An act which subjects a man to a penalty
of over $6,000 for not doing the work for which complaint was lodged
should clearly devolve the duty of decision upon some impartial
tribunal.
The case of Kennedy v. Board of Health, 2 Pa. 366, is not in point.
There the twenty-seventh section of the act of 29th of January, 1818,
grounds the right of the board to abate the nuisance in express words in
the opinion of the board that the nuisance tends to endanger the health
of the citizens. This is an essential prerequisite, and the citizen is
absolutely entitled to the judgment of the board on this point. This
feature is at the foundation of the decision. In that case the constitu-
tional question was not raised. But here the learned judge below was
of opinion that the act of 1848 does not furnish due process of law,
within the protection of the ninth section of the Declaration of Rights,
that no one shall be "deprived of his life, liberty or property unless by
the judgment of his peers or the law of the land." In this view we
concur. What is meant by the law of the land has been fully discussed
in Craig v. Kline, 65 Pa. 413, and the cited authorities. I shall not
enlarge upon it. Suffice it to say, the law must furnish some just form
or mode in which the duty of the citizen shall be determined before
he can be visited with a penalty for nonperformance of the alleged duty.
The proceeding must be in its nature judicial, though it is not nec-
essary it should be before one of the ordinary judicial tribunals of the
state.
Judgment affirmed.
136
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ADMINISTRATIVE POWER AND ACTION.
*
*
HUTTON et ux. v. CITY OF CAMDEN.
(Court of Errors and Appeals of New Jersey, 1876. 39 N. J. Law, 122, 23
Am. Rep. 203.)
BEASLEY, C. J.16
From an inspection of the bill of ex-
ceptions, it appears that, at a meeting of the board of health on the 29th
of December, 1874, the following resolution was passed, to wit: "Mof-
fet moved that the lot of Mr. Hutton, on Federal street, above Broad-
way, be declared a nuisance, and he (Hutton) be notified to fill said
lot up to grade. Agreed to." On the 7th of the following January the
following notice was served : “Mr. D. W. J. and Mary Hutton-You
are hereby notified by the board of health of the city of Camden to fill
up to grade your lot, situated on Federal street, forty feet, southeast
corner Broadway and Federal street, within ten days from date.” This
order not being complied with, the city did the work, at a cost of
$213.30, and this suit was brought by the city to obtain reimbursement
for this outlay from the plaintiffs in error.
From the history of the proceedings, it appears that the before-cited
resolution of the board of liealth was regarded, and was adjudged at
the trial, to be absolutely conclusive of the question embraced in its
decision. The board had agreed to the proposition that the lot of the
plaintiffs was a nuisance, and that ended the matter, for all the purposes
of the suit then trying. The resolution was looked upon as a judg-
ment that was just as final as would have been the judgment of the
Supreme Court of the state. It mattered nothing that the person whom
the resolution was to affect had not been notified of the action about
to be taken affecting his interest, and had, therefore, no opportunity
of being heard; nor that it affirmatively appeared, on the plaintiffs'
own case, that no public nuisance, in point of fact, had existed on the
property in question; or that a body of five persons had pronounced
judgment, without evidence, on the representation of two of its
members; or that such board had pronounced the lot itself to be a
nuisance, without specifying in what respect, so as to enable the owner
to remove whatever was objectionable; or that the order, instead of
being to abate a designated nuisance, leaving it to the lot owner to
abate it in his own fashion, had directed the lot to be filled in to grade-
yet, notwithstanding all these omissions and errors, which were ob-
viously so flagrant as to leave in the action of this tribunal not the
faintest semblance, either in form or substance, of a proceeding in an
ordinary court of justice, was pronounced to be, in point of law, final,
and to import absolute verity.
But this view of the efficacy to be given to this decision of the board
of health, even if such board is to be regarded as a special tribunal,
authorized by the Legislature to pass upon the matter adjudged by it,
is, I think, manifestly erroneous. It is not within the competence of.
16 Only a part of the opinion of Beasley, C. J., is printed.
Ch. 4)
137
NOTICE.
legislation in this state to authorize any tribunal to render a judgment
against the person or property of a citizen without a notice, and an op-
portunity afforded him to be heard. If the charter of the city of Cam-
den had declared that the board of health should have the power of ren-
dering decisions similar to the present one, and under the same condi-
tions of procedure, such provision would have been entirely nugatory. A
judgment in any court, without in any wise summoning the defendant,
would be void, and not merely voidable. It is true that where the pro-
ceeding is in any of our domestic tribunals, whose action is regulated by
the common law, it will not be admissible to show the fact, in a col-
lateral way, that the sentence was rendered against a defendant who
was not duly in court; the rule, introduced from the civil law, being,
“res judicata pro veritate accipitur.” And this estoppel springs from
the circumstance that in courts so constituted there is a remedy pro-
vided against errors of every description. But this rule, which this
[thus] conclusively presumes, that courts of this character had juris-
diction by means of due citation over the person of the suitor, does not
apply to inferior and special tribunals not being courts of record, and
whose methods of action are not in accordance with those of the com-
mon law. Whenever the act of such a judicial body comes in question,
its jurisdiction over the particular case adjudged is a mere matter in
pais, and is open to inquiry by evidence.
*
*
* 17
METROPOLITAN BOARD OF HEALTH v. HEISTER
(two cases).
HEISTER V. METROPOLITAN BOARD OF HEALTH
(two cases).
(Court of Appeals of New York, 1868. 37 N. Y. 661.)
The above four cases were submitted to the General Term of the
Supreme Court in the First Judicial District, by the parties, under the
Code, for the purpose of procuring decisions upon questions that had
arisen between them, and which are also involved in several other
pending suits.
In case No. 1, the board claims to recover the penalty given by the
statute against one who has violated its order. The defendant, when
the order was made, was engaged as a butcher, in the business pursuit
of “slaughtering cattle at his slaughterhouse, No. 95 Fourth street, in
the city of New York, which said slaughterhouse was in the densely
populated portions of said city, and was upon a paved street.” The
board of health, the plaintiff, on said day, as contemplated by the first
subdivision of the fourteenth section of the metropolitan health law
(Laws 1866, c. 14), “took and filed among its records what (the same
17 See Weil v. Ricord, 24 N. J. Eq. 169 (1861).
138
(Part 1
ADMINISTRATIVE POWER AND ACTION.
being written evidence) the plaintiff regarded as sufficient proof to
authorize its declaration that the same (the using of said slaughterhouse
for said pursuit) was dangerous to health, and was also a public nui-
sance."
Said proof "consisted of statements of competent persons,
under oath, that said business endangered the health of the people of
the vicinity, was offensive to their senses, and rendered their life un-
comfortable, and of facts sustaining such statements.” The board
thereupon "ordered said business to be discontinued, and said nuisance
to be abated," but directed that the order should not be executed till
the same had been served on the defendant, and he had been afforded an
opportunity to be heard. This order was duly served on the defendant,
and it is admitted "that the defendant might have applied for, and have
had, the opportunity and hearing contemplated in said section, but did
not, at any time, apply for the same, but declined or omitted so to do;
that the plaintiff waited more than three days, as provided by law, after
such service, and before commencing the execution of said order.” And
thereafter a final order was in due course made by the board, which
is set out at length. The police were directed to execute this order,
"and the execution of the order was duly commenced”; and “all doings
and proofs and order of said board in the premises appear among its
archives, as the law provides.” The submission to the court below was
formally made by both parties. The defendant's theory was sustained,
and judgment ordered in his favor, and an appeal has been taken to this
court by the plaintiffs.
Case No. 4 arises on the same state of facts, and relates to the same
order, as case No. 1; but it is a suit by the butcher against the board to
obtain an injunction to prevent the board enforcing its order, forbid-
ding slaughtering at the place to which the order relates. The case
differs from No. 1 only at the point where the plaintiff states his claims
and demands his remedy. The board found the same facts as to the
business being "dangerous to health," made the same order, and gave
the plaintiff the same opportunity for a hearing, which he declined,
as in case No. 1. It appears that the record of the decision and pro-
ceedings of the board are preserved among its records. The decision
of the General Term was in favor of Heister, and the board of health
bring their appeal to this court.
HUNT, C. J.18 * * Before leaving the consideration of this
constitutional objection, it ought, perhaps, to be observed that the act
provides for notice to the party affected, before the judgment finally
passes against him. In substance, the board, upon the evidence before
it, determine that a prima facie case exists requiring their action. In
the present instance, after such preliminary determination made, notice
was given to Heister of what had been done, and that he could be heard
upon the subject, with his witnesses, at a time designated. This gave
the same protection to all his rights as if notice had been served upon
*
*
18 Only a portion of the statement and of the opinion of Hunt, C. J., is
printed.
Ch. 4)
139
NOTICE.
him before any preliminary proceedings had been taken. He refuses to
litigate before the board the question whether his pursuit is dangerous
to the public health, but places himself upon their want of power over
the subject. He cannot complain now that their judgment upon the
facts is to be held conclusive upon hini.
PEOPLE ex rel. COPCUTT V. BOARD OF HEALTH OF CITY
OF YONKERS.
(Court of Appeals of New York, 1893. 140 N. Y. 1, 35 N. E. 320, 23 L. R.
A. 481, 37 Am. St. Rep. 522.)
Appeal from Supreme Court, General Term, Second Department.
Certiorari by the People of the State of New York on the relation
of John Copcutt to review the action of the Board of Health of the
City of Yonkers in enacting an ordinance declaring certain mill ponds
owned by relator in such city to be public nuisances, and directing the
issuance of a warrant authorizing the proper officer to remove and
abate the same. From a judgment of the General Term (71 Hun, 84,
24 N. Y. Supp. 629) affirming the proceedings of the board, relator
appeals. Affirmed.
The other facts fully appear in the following statement by EARL, J.;
The Nepperhan river is a small stream of water flowing through
the city of Yonkers, and across the stream there were several dams,
to furnish power to drive machinery. Much com.laint having been
made to the board of health that these dams.created nuisances, the
inembers of the board resolved to hold a meeting on the 27th day of
March last to consider the condition of the dams, and they ordered
notice to be given to the owners of the dams to show cause at that
time why the dams should not be removed. In pursuance of this reso-
lution, notice was served upon the relator, who owned or was interested
in two of the dams and the ponds and water powers thereby created,
called the “5th” and “6th” water powers, and he appeared before the
board at the time and place in person and by counsel, and he gave evi-
dence tending to show that the two dams were not nuisances, and
did not create nuisances; and there was also evidence in conflict with
the case made by him. After hearing the evidence, the board made its
determination that the dams were nuisances, and ordered them re-
moved. The relator then instituted this proceeding by certiorari to
review this determination. The board made return to the writ, setting
forth all its proceedings and the evidence taken by it, and stated in
its return that its determination and action were based "not only upon
testimony given by the witnesses, but that the determination of the
said board of health, and the members thereof, has been based mainly
upon the individual knowledge and experience of the members of said
board of health concerning the ponds in the Nepperhan stream, and the
140
(Part 1
ADMINISTRATIVE POWER AND ACTION,
condition thereof, inasmuch as each member of the board of health,
in performance of the duties imposed by law, has personally inspected
and has examined and inquired into the condition of said ponds and of
said stream, and that the conclusions reached by this board have been
reached and depend largely upon personal knowledge and experience
of the individual inembers of this board, and for this reason it is ap-
parent that this board cannot certify to and reproduce before this
court all of the proofs, nor all of the grounds of the determination of
said board, nor any considerable part thereof." Upon the return and
the papers filed therewith the general term affirmed the action of the
board, and then the relator appealed to this court.
EARL, J.19 (after stating the facts). The disposition of this case
turns largely upon the effect and the construction of the statutes con-
stituting the board of health, and defining its powers and duties, and
we will therefore first give attention to the statutes.
By chapter 184 of the Laws of 1881 (an act to revise the charter of
the city of Yonkers) it is provided in title 9 that the mayor, the super-
visor, the president of the common council, the president of the board
of water commissioners, the president of the board of police, and the
health officer shall constitute the board of health of the city; and
the board is given power, among other things, “to suppress, abate, and
remove any public nuisance detrimental to the public health," and, in
addition to other remedies which it may possess by law, it is empow-
ered to issue its warrant, whenever necessary, to the sheriff of the
county of Westchester, or to any policeman of the city, authorizing
and commanding him to forthwith suppress, abate, and remove such
public nuisance, at the expense of the lot whereon the nuisance exists,
and of the owner thereof, to be enforced and collected as in the act
provided. It is further provided that, in addition to the powers ex-
pressly granted in the act, the board shall "have and exercise all the
powers now or at any time hereafter conferred upon boards of health
in cities by any general law;" and it is authorized to make ordinances,
rules, and regulations to carry into effect its powers, and to enforce
observance of them by penalties, and by action instituted in its name
to recover penalties and to restrain and abate the nuisance.
By chapter 270 of the Laws of 1885 (the general act for the preserva-
tion of the public health) it is provided that the board of health in
any city of the state, except the cities of New York, Brooklyn, and
Buffalo, shall have the power, and it shall be its duty, "to receive and
examine into the nature of complaints made by any of the inhabitants
concerning nuisances or causes of danger or injury to life and health
within the limits of its jurisdiction; to enter upon or within any place
or premises where nuisances or conditions dangerous to life and health
are known or believed to exist, and by appointed members or persons
to inspect and examine the same, and all owners, agents and occupants
19 A portion of the opinion is omitted.
Ch. 4)
141
NOTICE.
..
shall permit such sanitary examinations, and said board of health shall
furnish said owners, agents and occupants a written statement of re-
sults or conclusions of such examinations; and every such board of
health shall have power, and it shall be its duty, to order the suppres-
sion and removal of nuisances and conditions detrimental to life and
health found to exist within the limits of its jurisdiction," and "to
make, without the publication thereof, such orders and regulations in
special and individual cases, not of general application, as it may see
fit, concerning the suppression and removal of nuisances.” It is fur-
ther authorized to abate nuisances, and to impose penalties for the
violation of its orders and regulations, and the violation of them is
also made a misdemeanor, and it may commence actions to restrain
and abate nuisances, and to enforce its orders and regulations.
A careful examination of the two acts shows that there is no pro-
vision for a hearing before the board on the part of any person who
is charged with maintaining a nuisance upon his premises. The right
to such a hearing is not expressly given, and cannot be implied from
any language found in either act, or from the nature of the subjects
dealt with in the acts. Boards of health and other like boards act
summarily, and it has not been usual anywhere to require them to give
a hearing to any person before they can exercise their jurisdiction for
the public welfare. The public health might suffer or be imperiled
if their action could be delayed until a protracted hearing could be
brought to a termination. There is no provision in the acts for calling
or swearing witnesses, and there is no general law giving them power
to do so. Section 843 of the Code of Civil Procedure20 is not appli-
cable to such a case, for the reason that the board is not authorized by
law to hear testimony or take the oral examination of witnesses.
The question may be asked, how can these provisions conferring
powers upon boards of health to interfere with and destroy property,
and to impose penalties and create crimes, stand with the Constitution,
securing to every person due process of law before his property or
personal rights or liberty can be interfered with? The answer must
be that they could not stand if we were obliged to hold that the acts
referred to inade the determinations of the board of health as to the
existence of nuisances final and conclusive upon the owners of the
premises where they are alleged to exist. Before such a final and con-
clusive determination could be made, resulting in the destruction of
property, the imposition of penalties and criminal punishments, the
party proceeded against must have a hearing, not as matter of favor,
but as inatter of right; and the right to a hearing must be found in
the acts. Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 239. As we
have said, there is no provision of law giving any party a right to a
judicial hearing before these boards, and there is no provision making
their determination final. If the decisions of these boards were final
and conclusive, even after a hearing, the citizen would in many cases
20 Authorizing the administration of oaths by certain officials.
142
(Part 1
ADMINISTRATIVE POWER AND ACTION.
hold his property subject to the judgments of men holding ephemeral
positions in municipal bodies and boards of health, frequently unedu-
cated, and generally unfitted to discharge grave judicial functions.
Boards of health, under the acts referred to, cannot, as to any existing
state of facts, by their determination make that a nuisance which is not
in fact a nuisance. They have no jurisdiction to make any order or
ordinance abating an alleged nuisance unless there be in fact a nuisance.
It is the actual existence of a nuisance which gives them jurisdiction
to act. Their acts declaring nuisances may be presumptively valid
until questioned or assailed, for the same reasons which give presump-
tive legality to the acts of official persons under the maxim, "omnia
præsumuntur legitime facta donec probetur in contrarium."
What operation, then, does the order or ordinance of the board of
health have under these acts? The nuisance actually existing, and the
jurisdiction having been regularly exercised, the order or ordinance
has all the operation and effect provided in the act, and the persons
who abate the nuisance have the protection which they would not have
as private persons abating, not a private nuisance, especially injurious
to them, but a public nuisance injurious to the general public. It may
be said that if the determination of a board of health as to a nuisance
be not final and conclusive, then the members of the board, and all
persons acting under their authority in abating the alleged nuisance,
act at their peril; and so they do, and no other view of the law would
give adequate protection to private rights. They should not destroy
property, as a nuisance unless they know it to be such, and, if there
be doubt whether it be a nuisance or not, the board should proceed by
action to restrain or abate the nuisance, and thus have the protection
of a judgment for what it may do.
It may further be asked, what, under this view of the law, is the
remedy of the owner of property threatened with destruction or actually
destroyed as a nuisance? He may have his action in equity to re-
strain the destruction of his property if the case be one where a court
of equity under equitable rules has jurisdiction,21 or he may bring a
common-law action against all the persons engaged in the abatement of
the nuisance to recover his damages, and thus he will have due process
of law; and, if he can show that the alleged nuisance does not in fact
exist, he will recover judgment, notwithstanding the ordinance of
the board of health. Thus the views we take of these acts and similar
acts conferring powers upon local officers to proceed summarily upon
their own view and examination furnish adequate protection to boards
of health, to the public, and to property owners, and, while these views
are not supported by all the decided cases upon the subject, they have
the support of the best reasons and of ample authority.
In Cooley's Constitutional Limitations (5th Ed.) at page 722, in a
note, the learned author, speaking of boards of health, says: "Though
21 See Golden v. Department of Health, 21 App. Div. 420, 47 N. Y. Supp.
623 (1897).
Ch. 4)
143
NOTICE.
*
they cannot be vested with authority to decide finally upon one's right
to property, where they proceed to interfere with it as constituting
a danger to health, yet they are vested with quasi judicial power to de-
cide upon what constitutes a nuisance, and all presumptions favor their
actions.” And again, at page 742, in a note, citing authorities, he says:
“Whether any particular thing or act is or is not permitted by the law
of the state must always be a judicial question, and therefore the
question what is and what is not a public nuisance nust be judicial, and
it is not competent to delegate it to local legislative or administrative
boards. The local declaration that a nuisance exists is, therefore, not
conclusive, and the party concerned may contest the fact in the courts."
Dillon, in his work on Municipal Corporations (4th Ed.) § 374, says
the authority to prevent and abate nuisances and its summary exercise
"may be constitutionally conferred on the incorporated place, and it
authorizes its council to act against that which comes within the legal
nature of a nuisance; but such power conferred in general terms
cannot be taken to authorize the extrajudicial condemnation and de-
struction of that as a nuisance which in its nature, situation, or use is
not such.”
In Wood's Law of Nuisances (section 740) it is said that, where the
public authorities abate a nuisance under authority of a city ordinance,
they are subject to the same perils and liabilities as an individual if
the thing abated is not in fact a nuisance.
It would, indeed,
be a dangerous power to repose in municipal corporations to permit
them to declare by ordinance or otherwise anything a nuisance which
the caprice or interests of those having control of its government might
see fit to outlaw, without being responsible for all the consequences;
and, even if such power is expressly given by the Legislature, it is
utterly inoperative and void, unless the thing is in fact a nuisance, or
was created or erected after the passage of the ordinance, and in de-
fiance of it.”
In Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984, Mr. Justice
Miller said: "It is a doctrine not to be tolerated in this country that
a municipal corporation without any general laws, either of the city or
the state, within which a given structure can be shown to be a nui-
sance, can, by its mere declaration that it is one, subject it to removal
by any person supposed to be aggrieved, or even by the city itself.
This would place every house, every business, and all the property of
the city at the uncontrolled will of the temporary local authorities."
In Hutton v. City of Camden, 39 N. J. Law, 122, 23 Am. Rep. 203,
it was held that the action of the board of health could not determine
conclusively that a nuisance exists, and that such a conclusive deter-
mination could be made only in a regular course of law before an
established court of law or equity.
In Underwood v. Green, 42 N. Y. 140, the action was to recover the
value of dead hogs removed under the direction of the city sanitary
inspector, an officer clothed with judicial discretion, and acting under a
144
(Part 1
ADMINISTRATIVE POWER AND ACTION.
city ordinance declaring that all dead animals "be forthwith removed
and disposed of by removal beyond the limits of the city or otherwise,
so as most effectually to secure the public health"; and it was held
that it must be shown, in order to justify the act, that the dead hogs
were or would become in some way dangerous or deleterious to public
health.
The following are also instructive authorities upon the same sub-
ject: Mayor, etc., of New York v. Board of Health, 31 How. Prac.
385,- Clark v. Mayor, etc., 13 Barb. 32; Rogers v. Barker, 31 Barb.
417; Coe v. Schultz, 47 Barb. 64; Lawton v. Steele, 119 N. Y. 226,
23 N. E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 813.
The result of these authorities is that whoever abates an alleged
nuisance, and thus destroys or injures private property, or interferes
with private rights, whether he be a public officer or private person,
unless he acts under the judgment or order of a court having jurisdic-
tion, does it at his peril; and when his act is challenged in the regular
judicial tribunals it must appear that the thing abated was in fact a
nuisance. This rule has the sanction of public policy, and is founded
upon fundamental constitutional principles.
The way is now clear to the disposition of this case. The board of
health did act, and had a right to act, upon its own inspection and
knowledge of the alleged nuisance. It was not obliged to hear any
party. It could obtain its information from any source and in any
way, and hence its determination upon the question of nuisance is
not reviewable by certiorari. People v. McCarthy, 102 N. Y. 630, 8
N. E. 85.
Our conclusion, therefore, is that the judgment of the general term
should be affirmed, with costs. All concur.22
*
*
22 FINCH, J., in Board of Health of City of Yonkers v. Copcutt, 140 N. Y.
12, 35 N. E. 443, 23 L. R. A. 485 (1893), an action to recover a penalty for
a violation of an ordinance of the board of health, said:
*The appellant also objects that the ordinance, which was directed against
him specially, and affected his property rights, was invalid, because passed
without notice to him and an opportunity to be heard. In another phase
of this case, coming to us on certiorari for a review of the action of the
board, we have decided that a hearing was not necessary, because the ques-
tion of nuisance, or not, lies at the foundation of the jurisdiction, and the
party proceeded against may always try that vital and decisive question in
the courts, and is not foreclosed by the order made. This case well illus-
trates the doctrine in actual operation. The plaintiff did not rely on its or-
ders or ordinances alone, or the presumptions which they raised, but pro-
ceeded to allege and prove that the dam and pond were a public nuisance.
The defendant took issue upon that, and the battle was fought out over that
question. The defendant has had his day in court, ample and abundant
chance to be heard, better and more complete than any hearing which the
board could give. But we have already decided the question adversely to
the defendant's contention, and nothing needs to be added to the discussion
which it has received."
See Harrington v. Board of Aldermen of Providence, 20 R. I. 233, 38 Atl.
1, 38 L. R. A. 305 (1897); Hartman v. Wilmington, 1 Marv. (Del.) 215, 4.1
Atl. 74 (1894).
After an order has been made, notice must be given to the person affected
Ch.4)
145
NOTICE.
HEALTH DEPARTMENT OF CITY OF NEW YORK v.
RECTOR, ETC., OF TRINITY CHURCH.
(Court of Appeals of New York, 1895. 145 N. Y. 32, 39 N. E. 833, 27 L. R.
A. 710, 45 Am. St. Rep. 579.)
Appeal from the Common Pleas of New York City and County,
General Term.
Action by the Health Department of the City of New York against
the Rector, Churchwardens, and Vestrymnen of Trinity Church, to re-
cover a penalty for failure to supply the floors of a teneinent house with
Croton or other water. From a judgment of the General Term of
the Court of Common Pleas of New York City and County (17 N. Y.
Supp. 510) reversing a judgment for plaintiff, the latter appeals. Re-
versed.
The cause of action is founded upon section 663 of the consolida-
tion act (Laws 1882, c. 410), relating to the city of New York, as such
section was amended by chapter 84 of the Laws of 1887. After making
various provisions in prior sections for the proper construction and
ventilation of tenement houses in the city of New York, the Legisla-
ture, by the amendment of 1887, enacted as follows: "Sec. 663. Every
such house erected after May 14th, 1867, or converteci, * *
* shall
have Croton or other water furnished in sufficient quantity at one or
more places on each floor, occupied or intended to be occupied by one
or more families; and all tenement houses shall be furnished with a
like supply of water by the owners thereof whenever they shall be di-
rected so to do by the board of health. But a failure in the general
supply of water by the city authorities shall not be construed to be a
failure on the part of the owner, provided that proper and suitable
with it, before he can be charged with its violation. State v. Butts, 3 S. D.
577, 54 N. W. 603, 19 L. R. A. 725 (1893).
See S. W. Peabody, Historical Study of Legislation Regarding Public
Health in New York and Massachusetts (Chicago, 1909) pp. 91–97:
"Notice and hearing does not appear in New York laws as essential to the
enforcement of orders of a board of health in regard to nuisances until 1850.
In that year the law for New York City (Laws N. Y. 1850, C. 275, tit. 3, art.
1, $$ 1, 3) required the city inspector, upon complaint being made of any
trade as a nuisance and detrimental to health, to give notice to the persons
concerned to show cause before the board of health why such trade should
not be discontinued. The order of the board of health, given after a hearing,
was final and conclusive, and disobedience to such orders was made a mis-
demeanor. When the law was brought before the courts for interpretation,
they held that a resolution of the board of health directing a nuisance to be
abated was void without such previous notice and hearing. People v. Bd.
H. N. Y. City, 33 Barb. (N. Y.) 344 (1861). In cases arising under the law
of the same year (1850) applying to the state at large, which made no men-
tion of notice and hearing, it was held (Reed v. People, 1 Parker, Cr. R.
[N. Y.] 481 [1854]; Rogers v. Barker, 31 Barb. [N. Y.] 447 [1860]) that the
power to make regulations for the removal of nuisances did not include the
power to make orders, on the ground that 'it is impossible to think the Leg-
islature intended to confer on boards of health power to make an adjudica-
tion against an individual without notice and in his absence
in-
FR. ADM.LAW.--10
*
146
(Part 1
ADMINISTRATIVE POWER AND ACTION.
appliances to receive and distribute such water are placed in said house.
Provided, that the board of health shall see to it that all tenement
houses are so supplied before January first, eighteen hundred and
eighty-nine." The rest of the section is not material.
It appeared upon the trial that the defendant was the owner of cer-
tain houses in the city of New York, known as “Numbers 59, 77, 84,
and 86 Charlton Street,” and on the 20th of March, 1891, the plaintiff
caused to be served on the agent of the defendant a notice requiring the
defendant, in conformity with the provisions of the Sanitary Code,
to alter, repair, cleanse, and improve the premises above mentioned,
and directing that suitable "appliances to receive and distribute a sup-
volving penalties, and that the Legislature never designed to commit power
to a board of health to conclude a thing was a nuisance and order its de-
struction without opportunity to be heard.' Nor were the powers of city
councils acting under city charters interpreted more broadly. Under the
charter of Syracuse (Charter of Syracuse, Laws N. Y. 1847, c. 475; Clark
V. Syracuse, 13 Barb. [N. Y.] 32 (1852]) it was held that the city council had
no right, 'without trial or notice to the party interested, to destroy large and
valuable property, under pretense that it is a nuisance endangering the
health of the city,' and that an injunction to restrain the board would be
given. None of these cases reached the Court of Appeals, but the lower
courts were quite consistently of the same opinion—that notice and hearing
were necessary to the enforcement of orders.
“The laws of 1866 and 1807 establishing the metropolitan board of health
brought the whole subject of quasi judicial powers prominently before the
courts. Section 14 of the law of 1866 (Laws 1866, c. 74) especially was at-
tacked as being unconstitutional. In the course of the decisions rendered
the courts declared that the quasi judicial functions conferred upon the
board to issue warrants, give notice and hearing, and compel witnesses (Laws
N. Y. 1867, C. 956) did not constitute a court, and that redress from its ac-
tions could always be had in the regular tribunals. Cooper v. Schultz, 32
How. Prac. (N. Y.) 107; Coe v. Schultz, 47 Barb. (N. Y.) 64; Reynolds
v. Schultz, 34 How. Prac. (N. Y.) 147; Met. Bd. v. Heister, 37 N. Y. 661.
See, also, Golden V. H. Dept., 21 App. Div. 420, 47 N. Y. Supp. 623. In the
only case among those brought against the metropolitan board in which the
question of hearing was definitely brought up (Reynolds v. Schultz), it was
† Laws N. Y. 1866, c. 74; Laws 1866, c. 686; Laws 1867, c. 700; Laws 1867,
c. 956. In the cases brought against the metropolitan board of health the attack
was made on three grounds: (1) That the law delegated legislative power to an
appointed board; (2) that it delegated judicial authority; (3) that the summary
powers granted to abate nuisances were contrary to the constitutional requirements
of "due process" and trial by jury. In upholding the constitutionality of the law
the courts held with regard to these objections : (1) That the Legislature could
create new sanitary districts with appointive officers (Met. Bd. v. Heister, 37
N. Y. 601 [1868]). (2) That the power to make regulatiops was not true legisla-
tion, such regulations being in the nature of administrative by-laws (Cooper v.
Schultz, 32 How. Prac. [N. Y.] 107 [1866]; Coe v. Schultz, 47 Barb. [N. Y.] 64
(1866]); but for the board to declare a thing a nuisance which was not such at
common law was legislative and ultra vires (Mayor v. Bd. of H., 31 How. Prac.
[N. Y.] 387 [1866]; Schuster v. Met. Bd., 49 Barb. [N. Y.) 450 (1867]). It is
to be noted in this connection that, wbile the regulations of boards of health are
not strictly legislation, they may become such by adoption, and the law may be
built up in great part by such regulations. (3) That, while it iwas within the
province of the Legislature to establish new courts and fix their jurisdiction, the
quasi judicial powers conferred on the board did not constitute it a court (Met.
Bd. v. Heister; Cooper v. Schultz). (4) That abatement by the board was not
a taking of property without due process (Cooper v. Schultz; Weil v. Schultz, 33
How. Prac. IN. Y.] 7; Coe v. Schultz), and was less objectionable than abatement
by private persons (Coe v. Schultz). (5) That a jury was not customary or nec-
essary for determining the fact of a nuisance (Reynolds v. Schultz; Met. Bd. v.
Heister).
Ch. 4)
147
NOTICE.
ply of water for domestic use be provided on the top floor of No. 59;
the basement, first and second floors of No.77; the basement, first, sec-
ond, and third floors of No. 84; and the basement and attic of 86.”
And the defendant was required to comply with the requirements with-
in five days from the receipt of the notice, and it was also stated in the
notice that any application for a necessary extension of time, or for the
suspension of any part of the requirements contained in the written
notice, should be made to the health department, at the time and place
designated in the notice.
This action was brought against defendant as owner of houses Nos.
777 and 84 Charlton street. The defendant claims that the houses in
held that upon refusal to fix a day for a hearing of the party affected a
mandamus would lie, and that it was a matter of grave doubt whether the
Legislature could constitutionally authorize any person or body
to destroy property
without providing for a hearing before con-
demnation, or compensation.'
"Such notice and hearing were not explicitly required in the later general
laws for local boards, although the power to make orders for the abatement
of nuisances was given, as well as other judicial powers, i. e., to issue war-
rants and subpænas, compel witnesses, administer oaths, with the same pow-
ers as justices of the peace in civil actions, and prescribe and impose penal-
ties for violations of or failure to comply with orders or regulations (Laws
N. Y. 1893, c. 661, § 21); but for many years the courts held that such no-
tice was essential and was implied in the statute (People v. Bd. H. Seneca
Falls, 58 Hun, 593, 12 N. Y. Supp. 561 [1891); People v. Wood, 62 Hun, 131,
16 N. Y. Supp. 664 [1891]). "The statute does not in words require notice,
but this is clearly implied.
The accused must be enabled to de-
fend himself before final judgment.'
“But although the necessity for notice and hearing had been the steady
doctrine of the lower courts, when the matter came before the Court of Ap-
peals after the cholera scare of 1892,1 the opposite view was taken—that 110--
tice and hearing by the board of health were neither implied or essential; that
there could be no final determination as to the fact of the nuisance, except by
a regular court, vor without the appearance of the parties in such a court. "A
hearing was not necessary because the question of nuisance or not lies at the
foundation of the jurisdiction, and the party proceeded against may always try
that vital and decisive question in the courts, and is not foreclosed by the or-
der made. The same doctrine was laid down again in the famous case of N.
Y. H. Dept. v. Trinity Church, and more emphatically in the later case of
Cartwright v. Coloes N. Y. Dept. v. Trinity Church, 145 N. Y. 32, 39 N. E.
833, 27 L. R. A. 710 (1895); Cartwright v. Cohoes, 165 N. Y. 631, 59 N. E.
1120 (1901). "The board was not obliged to hear anybody. It could have
acted upon its own inspection and knowledge of the premises. But hand in
hand with the advancement of the doctrine that notice and hearing by a
board of health were not necessary nor implied in the law went the other
doctrine that the question of the fact of the existence of the nuisance was
always subject to investigation in court and that boards of health or health
officers acted at their peril in abating a nuisance without the sanction of a
court decision. Where, however, even at the present time, local charters re-
quire notice and hearing by the board before the abatement of nuisances,
lack of such notice will be held to invalidate the action of the board. Eck-
hardt v. Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204 (1897); also Cushing v.
Bd. H. Buffalo, 13 N. Y. St. Rep. 783 (1887).
$ People v. Bd. H. Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37
Am. St. Rep. 522 (1893): “When pestilence is forcing a way into our harbors,
and danger and death approach through all rot and filth, it is the condition with
which boards of health must grapple, and the condition which must be abated and
removed without regard to the question who caused the trouble.”
.Bd. H. v. Cop-
cutt, 140 N. Y. 12, 35 N. E. 443, 23 L. R. A. 485 (1893).
!
148
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ADMINISTRATIVE POWER AND ACTION.
question were not "tenement” houses, as that word is popularly used;
that they were houses constructed many years ago as dwelling houses,
and they have never been altered, with reference to their internal ar-
rangement, so as to convert them into what would popularly be called
"tenement houses.” They were old-fashioned dwelling houses—two
story, attic, and basement. There were hydrants in the backyards,
accessible to all tenants of the houses. But the proof in the case shows
at No. 77 Charlton street there were three families, and in No. 84 there
were six families; and the houses came clearly and distinctly under
the definition of "tenement houses," as enacted by section 666 of the
consolidation act, as amended by the Laws of 1887 (chapter 84, p. 100.)
It is claimed on the part of the defendant that the buildings are in
a transition neighborhood, which will be shortly required for business
structures; that they are not in a neighborhood where all or many of
the large buildings, which are known as "tenement houses,” in the
popular meaning of the word, are situated; and that these houses are
not really within the reason of the statute. The defendant offered on
the trial to give testimony as to the necessary cost of complying with
the order of the board of health, which was excluded, and the defend-
ant excepted. Defendant also offered to prove that the introduction of
appliances to furnish'water on each floor, and the required sinks and
waste pipes to connect with the sewer, would cause great danger of
injury to the property, through the water in the pipes freezing and the
pipes bursting in the winter season; also, that no complaints had been
made to the defendant corporation by the occupants of these houses, in
reference to the want of water. All this evidence was excluded, under
the objection of the plaintiff, and upon the exception of the defendant.
The general term of the common pleas granted leave to plaintiff to
appeal from its order of reversal and granting a new trial, on the
ground that a question of law was involved, which ought to be re-
viewed by this court.
PECKHAM, J. (after stating the facts). 2 * Assuming that
this act is a proper exercise of the power, in its general features, we
do not think that it can be regarded as invalid because of the fact that
it will cost money to comply with the order of the board, for which
the owner is to receive no compensation, or because the board is en-
titled to make the order, under the provisions of the act, without no-
tice to and a hearing of the defendant. As to the latter objection, it
may be said that, in enacting what shall be done by the citizen for
the purpose of promoting the public health and safety, it is not usual-
ly necessary to the validity of legislation upon that subject that he shall
be heard before he is bound to comply with the direction of the Legis-
lature. People v. Board of Health, 140 N. Y. 1, 6, 35 N. E. 320, 23
L. R. A. 481, 37 Am. St. Rep. 522. The Legislature has power, and
25
*
*
28 Only a portion of this case is printed.
Ch. 4)
149
NOTICE
has exercised it in countless instances, to enact general laws upon
the subject of the public health or safety without providing that the
parties who are to be affected by those laws shall first be heard before
they shall take effect in any particular case.
So far as this objection of want of notice is concerned, the case is
not materially altered in principle from what it would have been if
the Legislature had enacted a general law that all owners of tenement
houses should, within a certain period named in the act, furnish the
water as directed. Indeed, this act does contain such a provision, but
the plaintiff has not proceeded under it. If, in such case, the enforce-
ment of the direct command of the Legislature were not to be preceded
by any hearing on the part of any owner of a tenement house, no pro-
vision of the state or federal Constitution would be violated. The
fact that the Legislature has chosen to delegate a certain portion of its
power to the board of health, and to enact that the owners of certain
tenement houses should be compelled to furnish this water after the
board of health had so directed, would not alter the principle, nor
would it be necessary to provide that the board should give notice and
afford a hearing to the owner before it made such order. I have
never understood that it was necessary that any notice should be given
under such circumstances before a provision of this nature could be
carried out.
The citizen cannot, under this act, be punished in any way, nor can
any penalty be recovered from him for an alleged noncompliance with
any of its provisions, or with any order of the board of health, without
a trial. The punishment or penalties provided for in section 665 can-
not be enforced without a trial under due process of law, and upon
such trial he has an opportunity to show whatever facts would consti-
tute a defense to the charge; to show, in other words, that he did not
violate the statute, or the order of the board, or that the statute itself
or the order was unreasonable and illegal.26 He might show that
the house in question was not a tenement house, within the provision
of the act, or that there was a supply of water as provided for by the
act, or any other fact which would show that he had not been guilty of
an offense with regard to the act. City of Salem v. Eastern R. Co.,
98 Mass. 431, 447, 96 Am. Dec. 650. The mere fact, however, that
the law cannot be enforced without causing expense to the citizen who
comes within its provisions, furnishes no constitutional obstacle to
such enforcement, even without previous notice to and a hearing of
the citizen. What is the propriety of a hearing, and what would
be its purpose? His property is not taken without due process of law,
within any constitutional sense, when the enforced compliance with
certain provisions of the statute may result in some reasonable ex-
26 The words italicized are not found in the report of the case in the North-
eastern Reporter.
150
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ADMINISTRATIVE POWER AND ACTION.
pense to himself. Any defense which he may have is available up-
on any attempt to punish him, or to enforce the provisions of the
law.
*. * 27
CITY OF SALEM v. EASTERN R. Co.
(Supreme Judicial Court of Massachusetts, 1868. 98 Mass. 431, 96 Am. Dec.
650.)
Contract, to recover $2,363.86, with interest from the date of de-
mand, expended by the plaintiff in digging a canal for the purpose of
abating a nuisance in the millpond in Salem.
WELLS, J.28
3. The proceedings of the board of health
are said to be defective, because taken without previous notice to the
defendants and opportunity to be heard. The evidence tended to
show that the defendants were notified of the pendency of proceedings,
and of the action taken by the board of health from time to time;
but there was no such notice beforehand as would give the defendants
an opportunity to appear and be heard upon the contemplated action
of the board, and there was no hearing upon any of the questions
before them.
The statute does not require any previous notice. Notice must be
given of general regulations prescribed by the board of health under
sections 5 and 6 [Gen. St. 1860, c. 26], before parties can be held in
fault for a disregard of their requirements. But, although such gen-
eral regulations may seriously interfere with the enjoyment of private
property, and disturb the exercise of valuable private rights, no pre-
vious notice to parties so to be affected by them is necessary to their
validity. They belong to that class of police regulations to which
all individual rights of property are held subject, whether established
directly by enactments of the legislative power, or by its authority
through boards of local administration. Baker v. Boston, 12 Pick.
184, 193, 22 Am. Dec. 421; Commonwealth v. Tewksbury, 11 Metc.
55; Commonwealth v. Alger, 7 Cush. 53, 85; Belcher v. Farrar, 8 Allen,
325. The authority of the board of health in respect to particular nui-
sances stands upon similar ground. Their action is intended to be
prompt and summary. They are clothed with extraordinary powers for
the protection of the community from noxious influences affecting life
and health, and it is important that their proceedings should be em-
27 See Chicago, etc., R. Co. v. Nebraska, 170 U. S. 57, 77, 18 Sup. Ct. 513,
521, 42 L. Ed. 948 (1898): "While no notice may have been given to the rail-
road companies of the pendency of the ordinance, and while they may not
have been invited to participate in the proposed legislation, yet they had an
opportunity to, and did in fact, put in issue, by the answer, both the validity
of the ordinance and the reasonableness of the amount apportioned to them,
respectively, for the repair of the viaduct in question.”'
28 Only a portion of the opinion is printed.
)
Ch. 4)
151
NOTICE.
barrassed and delayed as little as possible by the necessary observances
of formalities.
Although notice and opportunity to be heard upon matters affecting
private interests ought always to be given when practicable, yet the
nature and object of these proceedings are such that it is deemed to be
most for the general good that such notice should not be essential to
the right of the board of health to act for the public safety. Delay
for the purpose of giving notice, involving the necessity either of pub-
lic notice or of inquiry to ascertain who are the parties whose interests
will be affected, and further delay for such hearings as the parties
may think necessary for the protection of their interests, might defeat
all beneficial results from an attempt to exercise the powers conferred
upon boards of health. There are many cases in which powers of
determination and action, of a quasi judicial character, are given to of-
ficers intrusted with duties of local or municipal administration, by
which not only the property but the lives of individuals may be affected,
and which, from their nature, must be exercised, finally and conclusive-
ly, without a hearing, or even notice to the parties who may be affected.
Of this class are the authority of fire wards or other officers to direct
buildings to be demolished to prevent the spreading of fires (Gen. St.
C. 24, § 4; Taylor v. Plymouth, 8 Metc. 462); of magistrates to re-
quire aid and to use force, armed or otherwise, to suppress tumults
(Gen. St. C. 164, $$ 4, 6); of the mayor or other officers to call out a
military force for like purposes (Gen. St. c. 13, § 134; Ela v. Smith,
5 Gray, 121, 66 Am. Dec. 356).
The necessity of the case, and the importance of the public interests
at stake, justify the omission of notice to the individual. When the
statute authorizing the proceedings requires no notice, their validity
without notice is not to be determined by the apparent propriety of
giving notice in the particular case, but by considerations affecting
the whole range of cases to which the statute was intended to ap-
ply.
6. The most important and most difficult question in the case re-
lates to the effect of the orders of the board of health by which the
existence of the nuisance was "found and determined," and that it
was created and maintained by the defendants, and which also directed
its removal by the defendants.
The plaintiffs' counsel contend that the proceedings of the board of
health are quasi judicial, and that the determinations and orders made
by them in that capacity are adjudications conclusive against the de-
fendants upon all the facts involved in those determinations. If this
be so, the defendants are precluded from denying the existence and al-
leged cause of the nuisance, and their duty to remove it. We do not
find in the proceedings of the board of health, as reported, any deter-
mination by the board relative to the method of removal which was
undertaken, other than by the subsequent adoption of a report stating
the cost thereof, and that the trench was in successful operation. The
*
152
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ADMINISTRATIVE POWER AND ACTION.
1
record indicates another mode quite different from the one actually
adopted. The propriety of that mode of removal, the reasonableness
of the expenses, and the success or failure of the attempted remedy,
would therefore be open to investigation upon either view of the case.
But the court are of opinion that, in a suit to recover expenses in-
curred in removing a nuisance, when prosecuted against a party on
the ground that he caused the same, but who was not heard, and had
no opportunity to be heard, upon the questions before the board of
health, such party is not concluded by the findings or adjudications of
that board, and may contest all the facts upon which his liability is
sought to be established. . He is neither party nor privy to those ad-
judications; he has no right of appeal, and no other means by which
to revise the proceedings or to correct errors, either of law or fact,
therein. Parties similarly situated in respect to judgments in courts
of law may impeach them collaterally. Vose v. Morton, 4 Cush. 27,
50 Am. Dec. 750. "It is an essential principle of natural justice that
every man have an opportunity to be heard in a court of law, upon
every question involving his rights or interests, before he is affected by
any judicial decision of the question.” Commonwealth v. Cambridge,
4 Mass. 627; Bradstreet v. Neptune Insurance Co., 3 Sumn. 600, 607,
Fed. Cas. No. 1,793. In the case of Belcher v. Farrar, 8 Allen, 325,
328, it is intimated that even a general regulation, adopted by a board
of health in accordance with the statute, which might operate to render
valueless a large property by forbidding the prosecution of the business
for which it was erected, would be invalid as in violation of "one of
the fundamental principles of justice," but for a provision of the stat-
ute which gave to the party a right of appeal from the order enforcing
the regulation, and upon such appeal to have the whole matter involved
in the issue tried by a jury. *
Adjudications which stand merely as proceedings in rem cannot,
as a general rule, be made the foundation of ulterior proceedings in
personam, so as to conclude a party upon the facts involved. In most
cases of suits which are in their nature proceedings in rem, and so
designated, personal or public notice to parties interested is required
to be given; and they are entitled to appear and be heard, and to
have such rights in relation to the proceedings as are accorded to par-
ties litigant. Against such parties, whether they have actually appeared
or not, the adjudication is held to be conclusive upon the facts which
are made the ground of the judgment, when those facts are again
brought in question in ulterior or collateral proceedings. But such
effect is due to the fact that they were so made parties to the pro-
ceedings. The Mary, 9 Cranch, 126, 144, 3 L. Ed. 678; Whitney v.
Walsh, 1 Cush. 29, 48 Am. Dec. 590; Scott v. Shearman, 2 W. Bl. 977;
Hollingsworth v. Barbour, 4 Pet. 466, 474, 7 L. Ed. 922.
When there appears to have been no notice to the parties to be af-
fected, and no opportunity afforded them to be heard in defense of
their rights, whatever operation the adjudication may have upon the
Ch. 4)
153
NOTICE.
res, and however conclusive it may be held for the protection of those
who act,29 or derive rights under it, the adjudication itself can have
no valid operation against parties who may be named in the proceed-
ings. If it proceed to declare any obligation or impose any liability
upon such parties, they may, in any subsequent suit to enforce it, deny
the validity of the judgment, and controvert the facts upon which it
was based. Boswell's Lessee v. Otis, 9 How. 336, 13 L. Ed. 164; Har-
ris v. Hardeman, 14 How. 334, 14 L. Ed. 444; McKee v. McKee, 14
Pa. 231.
We think that these principles apply to the proceedings of a board
of health. Their determination of questions of discretion and judg-
ment in the discharge of their duties is undoubtedly in the nature of
a judicial decision; and within the scope of the power conferred, and
for the purposes for which the deterinination is required to be made, it
is conclusive. It is not to be impeached or set aside for error or mis-
take of judgment, nor to be reviewed in the light of new or additional
facts. The officer or board to whom such determination is confided,
and all those employed to carry it into effect, or who may have occa-
sion to act upon it, are protected by it, and may safely rely upon its
validity for their defense. It is in this sense that such adjudications
are often said to be conclusive against all the world; and they are so,
so far as the res is concerned. The statute and the public exigency are
sufficient to justify the omission of previous notice, hearing and ap-
peal. But this exigency is met and satisfied by the removal of the nui-
As a matter of police regulation, the proceedings and the au-
thority of the board end here. When the city comes to seek its rem-
edy over, to throw upon some individual, supposed to have caused the
nuisance, the expenses of removal which it has incurred in the first
instance as the representative of the public, there seems to be no rea-
son, founded either in the public exigency or in the justice of the case,
that requires or warrants the holding of such ex parte adjudications
as final and conclusive to establish the facts upon which the claim
rests.
From the foregoing considerations we are led to construe the stat-
utes in question as conferring no judicial power upon the board of
health beyond that which is absolutely essential to the performance of
their administrative functions for the accomplislıment of the end con-
templated, to wit, the summary abatement of nuisances of the cla
sance.
*
29 "It is true that it is said in Salem V. Railroad Co. [98 Mass. 431, 96
Am. Dec. 650] that the board's determination of questions of discretion and
judgment in the discharge of their duties would protect all those employed
to carry such determinations into effect. The remark is obiter, and it is
doubtful perhaps on reading the whole case whether it means that the deter-
mination would protect them in an action for damages when the statute
provided no compensation for property taken which is not a nuisance. To
give it such an effect as a judgment merely would be inconsistent with the
point decided, and with Brigham v. Fayerweather, 140 Mass. 411, 5 N. E.
265 (1886).” Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116,
23 Am. St. Rep. 850 (1891).
154.
(Part 1
ADMINISTRATIVE POWER AND ACTION.
.:
indicated. The absence of any provision for previous notice and
hearing, the summary execution of the order without means of redress
or relief by appeal or otherwise against error and injustice, would
make the proceedings violate the fundamental principles of justice uni-
versally recognized, if they should be held to establish, by an unalter-
able and absolutely conclusive decree, the personal liability of the
parties who might be named by the board of health as having caused
or permitted the nuisance. We cannot yield to a construction which
would lead to such results. By the narrower construction which we
lave indicated, the statute will have its full and effective operation as
a police regulation, while parties who are charged with responsibility
for the expenses incurred will not be deprived of that full opportunity
of defense which is essential to the due administration of justice in
whatever form of judicial proceeding it may be undertaken.30
COMMONWEALTH v. SISSON (two cases).
(Supreme Judicial Court of Massachusetts, 1905. 189 Mass. 247, 75 N. E.
619, 1 L. R. A. [N. S.] 752, 109 Am. St. Rep. 630.)
Exceptions from superior court, Berkshire county.
Complaints by the Commonwealth against Henry D. Sisson and
against Frank Sisson, for violation of an order of the fish and
game commissioners prohibiting the discharge of sawdust into the
Konkapot river. The superior court ordered verdict for the Common-
wealth in each case, and defendants bring exceptions. Overruled.
LORING, J. These are two complaints, one against each defendant,
charging them severally with permitting sawdust to be discharged into
the Konkapot river, on March 29, 1905, in violation of an order made
by the fish and game commissioners, under Rev. Laws, c. 91, § 8,
dated August 1, 1904. The order, after reciting the authority given
by the act, and stating that the mill here in question owned by the
defendants had been examined by the board, and that it had been de-
termined by the board that the fish in the brook are of sufficient value
to warrant the prohibition of the discharge of sawdust into it, and
that the discharge of sawdust from the defendants' mill into said brook
materially injures the fish therein, directs the defendants (1) to erect a
blower or take other means approved by the commissioners to prevent
the discharge of sawdust from said mill into said brook directly or in-
directly, and (2) not to accumulate a pile of sawdust on the bank of
the brook, so that it may be liable to fall into the stream or be swept
30 See Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23
Am. St. Rep. 850 (1891), post, p. 535; North American Cold Storage Co. v.
Chicago, 211 U. S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195 (1908), post, p. 256.
See, also, Carter V. Colby, 71 N. H. 230, 51 Atl. 904 (1902); Loesch v.
Koehler, 144 Ind. 278, 41 N. E. 326, 43 N. E. 129, 35 L. R. A. 682 (1896);
King v. Hayes, SO Me. 206, 13 Atl. 982 (1888).
Ch. 4)
155
NOTICE.
away by a rise of water. At the trial
At the trial it was proved that this order
was served on the defendants on or before July 1, 1904, and that the
defendants continued to discharge sawdust into Konkapot river up to
the time these complaints were instituted. It also appeared that there
were edible fish in the river at the time the board passed the order in
question.
The defendants offered to show, in substance, that the commissioners
in making the order did not act on sworn evidence or personal knowl-
edge as to the fish or the sawdust; that in the spring of 1905 the de-
fendants asked for a hearing, which the commissioners denied;' that
the mill has been used as it is now used for more than 30 years under
a claim of right, and that the right was admitted by the next mill own-
er below; and, finally, that a compliance with the order as to a blower
would impair the efficiency of the mill about 25 per cent., that the saw-
dust could not be sold, and to cart it away would entirely destroy the
value of the land for mill purposes. This evidence was excluded and
an exception was taken.
The defendant then made the following six requests for rulings, to
wit: "First. That the act of the commissioners on fisheries and game,
by which they determine that the fish in any brook or stream are of
sufficient value to warrant the prohibition or regulation of the dis-
charge of sawdust from any particular sawmill materially injuring
such fish, is a judicial act, which can be lawfully performed only after
the hearing of evidence bearing upon the questions involved, viz., the
value of the fish in such brook or stream and the effect of such sawdust
as injuring such fish. Second. That the order in this case, having been
passed by the commissioners without hearing any evidence, and with-
out any knowledge by them of the value of the fish in the stream or
the amount of water in the stream, or the amount of sawdust that is dis-
charged by defendants' sawmill into the stream, is not a lawful order
under the statute, and is not binding upon the defendants. Third.
That the defendants and the predecessors in title, liaving been discharg-
ing sawdust from their sawmills for more than 20 years consecutively
under a claim of right into the Konkapot river, have acquired by pre-
scription a title to such right, and such right is their property, of
which they cannot be deprived without compensation. Fourth. That
section 8 of chapter 91 of the Revised Laws makes no provision for
compensation to the owner of a sawmill who is forbidden by an order
of the commissioners to discharge sawdust into á brook or stream,
and said statute is therefore unconstitutional and void so far as these
defendants are concerned. Fifth. That this order of the commissioners
so interferes with the use of the property of the defendants as to
amount to a taking of such property for public use, and the order is
void, as no compensation to defendants for such taking is provided by
the order, or by the statute under which the order is made. Sixth.
That this order of the commissioners so interferes with the use of the
property of the defendants as to seriously damage, impair, or injure
156
(Part 1
ADMINISTRATIVE POWER AND ACTION.
such property, and the order is void, as no provision is made, either in
the order or the statute under which the order is created, for com-
pensating the defendants for such damage, impairment, or injury to
their property."
The defendants' grievance is that by an order of the board of fish and
game commissioners they have been deprived, without compensation
being made therefor, of the right to conduct the business of sawing
wood as they and their predecessors in title liave conducted it for 30
years last past, that from this decision there is no appeal, and that not
only was the order made without a hearing, but, when a hearing was
asked for by the defendants, it was denied. Their contention is, first,
that under the act they had a right to be heard at the trial in the su-
perior court on the questions of fact determined by the board; second,
that they could not be deprived by the board of their prescriptive right
to discharge sawdust into Konkapot river without being heard and by
a finding not made on sworn evidence; and, third, that under any
circunstances this right cannot be take without compensation being
made therefor.
In support of their contention they argue that the board, in deter-
mining (1) that the fish in Konkapot river are of sufficient value to
warrant the prohibition or regulation of the discharge of sawdust
therein, and (2) that the discharge of sawdust from the defendants'
mill materially injured such fish, was a judicial action; and, in connec-
tion with this argument, they rely on the distinction pointed out in
Salem v. Eastern Railroad Co., 98 Mass. 431, 96 Am. Dec. 650, be-
tween the action of a local board of health in making general regula-
tions respecting articles capable of conveying infection or creating sick-
ness and the authority of such a board to examine into the existence of
any specific case of nuisance, filth, or cause of sickness dangerous to
the public health and to make an order for the removal of it. The
former, being a rule for all, is legislative in character; the latter, being
a determination as to a particular thing, resulting in an order to the
owner of it to do a specified act, is judicial in character. For a later
case, where it is pointed out that similar legislative and judicial powers
are given to the state board of health in connection with the pollution
of a body of water used as a supply of a city or town, see Nelson v.
State Board of Health, 186 Mass. 330, 71 N. E. 693.
We agree with the defendants' counsel as to what the order here in
question is not. We agree that it is not a general regulation.31
What is determined by it is that the discharge of sawdust from the
defendants' mill materially injures the fish in Konkapot river, and it
orders the defendants to erect a blower, and forbids the defendants
making a pile of sawdust in connection with the mill; and it resulted in
an order served on these defendants to do these acts. This is not a
general regulation. But we do not agree that, because it is not a gen-
31 That general regulations do not require notice, see Belcher v. Farrar,
8 Allen (Mass.) 325 (1864); Taunton v. Taylor, 116 Mass. 254 (1874).
Ch.4)
157
NOTICE.
eral regulation, it is a judicial action. The question to be decided here
does not depend upon a choice between the two classes dealt with in
Salem v. Eastern Railroad, 98 Mass. 431, 96 Am. Dec. 650, and in
Nelson v. State Board of Health, 186 Mass. 330, 71 N. E. 693, and for
these reasons:
We are of opinion, in the first place, that it is within the power of the
Legislature to protect and preserve edible fish in the rivers and brooks
of the commonwealth, and for that purpose, if they think proper, to
forbid any sawdust being discharged into any brook containing such
fish. The right to run a sawmill on the bank of a brook or a river is,
like all rights of property, subject to be regulated by the Legislature,
when the unrestrained exercise of it conflicts with other rights, public
or private. See Commonwealth v. Alger, 7 Cush. 53, 54; Rideout v.
Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep.
560. The defendants' contention that they have a prescriptive right
to discharge sawdust into the river, even if it kills or injures the
fish therein, which prescriptive right cannot be taken away or impaired
without compensation being made therefor, means this, and nothing
more: Where the Legislature, up to the passage of the act here in
question (St, 1890, p. 106, c. 129), had not regulated the business of
sawing wood on the banks of streams having in them edible fish, and
where, in the absence of such regulation, the defendants had discharged
sawdust into the stream for 30 years, the people have lost the power
to regulate the conflicting rights of sawmills on the bank of the stream
and to preserve fish in the stream itself. The statement of the proposi-
tion is enough to show that there is nothing in it. The decision in
Attorney General v. Revere Copper Co., 152 Mass. 444, 25 N. E. 605, 9
L. R. A. 510, relied on by the defendants, is confined to the gaining of
prescriptive rights with respect to property owned by the public un-
statute of limitations, which puts the property rights of the public
on the same basis as those of individuals.
We are of opinion, in the second place, that in case the Legislature
thought that in regulating the conflicting rights of individuals to run
sawmills on the banks of a river on the one hand, and of the public, on
the other hand, to have fish live and increase in the same stream, it was
not worth while to forbid sawdust being discharged into every stream
in which there were edible fish, they could leave to a board having
peculiar knowledge on the subject the selection of the brooks and riv-
ers in which the fish were of sufficient value to warrant the prohibition
or regulation of the discharge of sawdust. The right of the Legis-
lature to delegate some legislative functions to state boards was con-
sidered by this court in Brodbine v. Revere, 182 Mass. 598, 66 N. E.
607. And, further, in case the Legislature thought that an act which
forbade any sawdust to be discharged into any of the streams selected
by the board was an unnecessarily stringent one, they could, in our
opinion, leave it to the board to settle in each particular case the prac-
tical details required to harmonize best these two conflicting rights.
158
(Part 1
ADMINISTRATIVE POWER AND ACTION.
The power thus delegated to the board of fitting the details of regula-
tion to the particular circumstances of each case is of the same char-
acter as that long exercised by the fish and game commissioners and
their predecessors, the board of inland fisheries, in prescribing the de-
tails of the construction of the fishways to be constructed in dams
where by law fishways have to be maintained. See St. 1866, pp. 231,
232, c. 238, 88 2, 6; St. 1867, p. 741, c. 344; Pub. St. 1882, c. 91, $
4. See, also, 3 Province Laws, 1745–46 (State Ed.) c. 20, p. 267.
These acts provide that the board, after examination of dams upon
rivers where the law requires fishways, is to determine whether the
fishways in existence are sufficient, and to prescribe by an order in
writing what changes or repairs, if any, shall be made, and at what
times the fishways are to be kept open, and to give notice thereof to the
owners of such dams. The action of the fish commissioners under
these acts is unquestionably legislative in character, and we cannot
doubt that their action under them, exercised and acquiesced in by the
public for this length of time, is valid.
The result is that in our opinion the action of the board in the case
at bar was the working out of details under a legislative act. The
board is no more required to act on sworn evidence than is the Legis-
lature itself, and no more than in case of the Legislature itself is it
bound to act only after a hearing, or to give a hearing to the plaintiff
when he asks for one; and its action is final, as is the action of the
Legislature in enacting a statute, and, being legislative, it is plain that
the questions of fact passed upon by the Legislature in adopting the
provisions enacted by them cannot be tried over by the court. This
court has been recently asked to try over the expediency of compul-
sory vaccination in an action under a statute requiring it. Com. v.
Jacobson, 183 Mass. 242, 66 N. E. 719, 67 L. R. A. 935. On its de-
clining to do so an appeal was taken to the Supreme Court of the
United States, and its refusal to do so was held to be correct. Jacob-
son v. Mass., 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643. See par-
ticularly page 30 of 197 U. S., page 363 of 25 Sup. Ct. (49 L. Ed.
643). See, also, Devens, J., in Train v. Boston Disinfecting Co., 144
Mass. 531, 11 N. E. 929, 59 Am. Rep. 113,
The practical result is that the defendants are forbidden to con-
duct their sawmill as they had conducted it for 30 years by a board
who have not heard evidence and have refused the defendants a hear-
ing, that the action of the board is final, and that no compensation is
due to them. This result may seem strange. But it is no less strange
than the practical results in cases which are decided law. Take the
case before the court in Nelson v. State Board of Health, 186 Mass.
330, 71 N. E. 693, namely, a farm on the banks of a pond used as the
water supply of a town. The state board of health can pass a general
regulation under section 113, c. 75, Rev. Laws, forbidding privies
within a specified distance from its shore; and, if the defendant had
a privy there for 30 years, his right to maintain it would cease, al-
Ch. 4)
159
NOTICE.
though the order was made without hearing; and the action of the
board is final. On the other hand, if the board had proceeded, under
section 118, to investigate this particular privy, the defendant would
have been entitled to a hearing, and, on appeal, to a jury, as provided
by section 119.
Again, take, for example, the regulation of a local board of health in
question in Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E.
929, 59 Am. Rep. 113, requiring all rags arriving at the port of Boston
from any foreign port to be disinfected at the expense of the owner
before being discharged. The power of the local board of health to
declare these rags a nuisance per se, so as to impose upon the owner
without trial the expense of disinfecting them, was established by this
court in that case. Had the local board undertaken to investigate
the particular rags in question in Train v. Boston Disinfecting Co., un-
der their jurisdiction to inquire into sources of filth, and they had been
authorized under that act to abate the nuisance if they found the rags
to be a nuisance, by ordering them to be disinfected at the expense of
the defendant, they would have had to give the defendant a hearing
on notice, and from their decision the defendant would have had a
right to a trial by jury.
That is what was decided in Salem v. Eastern Railroad, 98 Mass.
431, 96 Am. Dec. 650. That is to say, on the one hand, where the law
is general and the question is whether under it the defendants are
committing a nuisance, the facts are determined by judicial action; on
the other hand, the determination of the same facts is legislative in
case the Legislature decides to make the thing a nuisance per se. And
where it is legislative it is final, and no hearing is necessary; and
where, as is the case here, it is made in the exercise of the police pow-
er, no compensation is due.
The delegation of such legislative powers to a board is going a
great way. But the remedy is by application to the Legislature, if a
remedy should be given. In our opinion it is within its constitutional
power, and the court can give no remedy. For similar cases, where
the use which can be made of property has been left to the final de-
termination of boards, see Newton v. Joyce, 166 Mass. 83, 41 N. E.
116, 55 Am. St. Rep. 385; Com. v. Roberts, 155 Mass. 281, 29 N. E.
522, 16 L. R. A. 400. See, also, in this connection, In re Wares, Pe-
titioners, 161 Mass. 70, 36 N. E. 586. The difference between the
majority and the minority of the court in Miller v. Horton, 152 Mass.
540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850, was on the
construction of the act there in question.
Exceptions overruled. 32
32 "It is urged that there was denial of due process of law in failing to ac-
cord plaintiff in error a hearing before the board of tea inspectors and the
Secretary of the Treasury in establishing the standard in question, and be-
fore the General Appraisers upon the re-examination of the tea. Waiving
the point that the plaintiff in error does not appear to have asked for a hear.
160
(Part 1
ADMINISTRATIVE POWER AND ACTION.
SECTION 21.-IN REVOKING LICENSES
COMMONWEALTH V. KINSLEY.
(Supreme Judicial Court of Massachusetts, 1882. 133 Mass. 578.)
FIELD, J. The defendant was complained of for unlawfully keep-
ing, in a building occupied by him in Millbury, a table for the pur-
pose of playing at pool for hire, gain and reward, without authority
or license therefor.
By Gen. St. c. 88, S8 69–72, as amended by St. 1880, c. 94, the se-
lectmen in towns are authorized to grant licenses for such a table,
but "such license may be revoked at the pleasure of the authority
granting it"; and all persons are prohibited, under a penalty, from
keeping such a table without a license.
A license had been duly granted to the defendant, and it had been
revoked by the selectmen without giving him notice of their inten-
tion to revoke it; but they liad given the town clerk a certificate of
the vote revoking the license, and he had informed the defendant of its
contents, and thereafterwards the defendant "allowed a pool table to
be used for hire upon his premises.” The defendant contends that
this revocation was inoperative, because it was made without giving
him an opportunity to be heard, and that, if the statutes purport to au-
thorize a revocation without notice, they are in this respect unconsti-
tutional and void.
The keeping of a pool table for hire is one of many things affecting
the public morals, which the Legislature can either absolutely prohibit
or can regulate, and one common form of regulation is by requiring a
license. A licensee takes his license subject to such conditions as the
Legislature sees fit to impose, and one of the statutory conditions of
this license was that it might be revoked by the selectmen at their
pleasure. Such a license is not a contract, and a revocation of it does
not deprive the defendant of any property, immunity or privilege with-
in the meaning of these words in Declaration of Rights, art. 12. Com-
monwealth v. Blackington, 24 Pick. 352 ; Calder v. Kurby, 5 Gray, 597;
Commonwealth v. Colton, 8 Gray, 488; Commonwealth v. Brennan, 103
Mass. 70; Commonwealth v. Adams, 109 Mass. 344; Commonwealth v.
Fredericks, 119 Mass. 199.
ing, and assuming that the statute did not confer such a right, we are of
opinion that the statute was not objectionable for that reason. The provi-
sions in respect to the fixing of standards and the examination of samples by
government experts was for the purpose of determining whether the condi-
tions existed which conferred the right to import, and they therefore in no
just sense concerned a taking of property. This latter question was intended
by Congress to be finally settled, not by a judicial proceeding, but by the ac-
tion of the agents of the government, upon whom power on the subject was
conferred.' Buttfield v. Stranahan, 192 U. S. 470, 497, 24 Sup. Ct. 349, 355
(48 L. Ed. 525) (1904).
!
Ch. 4)
161
NOTICE.
It is immaterial in what manner the defendant obtained knowledge
that his license had been revoked. Without considering whether the
defendant would be liable to the forfeiture imposed by Gen. St. c. 88, $
70, if he had not had either notice or knowledge that his license had
been revoked, after such knowledge he would clearly be liable. St.
1876, c. 147,33 has no application to this case.
Exceptions overruled.
MARTIN V. STATE.
*
*
(Supreme Court of Nebraska, 1888. 23 Neb. 371, 36 N. W. 554.)
Error to district court, Lancaster county.
George Martin was indicted for selling liquors without a license.
Case tried upon a stipulation of facts. Judgment for the State, and
defendant brings error.
REESE, C. J. Plaintiff in error was convicted of the crime of selling
intoxicating liquors in violation of law, not having a license there-
for.
It appears by the record that a license was issued to plaintiff in
error on the 13th day of April, 1887, by which he was permitted to
sell intoxicating liquors until the second Tuesday in April, 1888, but
that on the 22d day of June, 1887, he was convicted of selling liquor on
Sunday, the 12th day of the same month. This conviction was had in
the police court, and on the 27th day of June the police judge certified
the conviction to the city council. At a subsequent meeting of the
council, we presume, although the date is not given, the resolution re-
voking the license was adopted without any notice having been given
to plaintiff in error of the contemplated action of the council. The
section of the statute under which this action was had is section 92 of
the law governing cities of the first class (Comp. St. 1887, c. 13a),
which is as follows:
"Sec. 92. The mayor and council inay, by ordinance, license, re-
strain, regulate, or prohibit the selling or giving away of malt, spiritu-
ous, or vinous, mixed or fermented, intoxicating liquors, the license
not to extend beyond the municipal year for which it shall be granted,
and to determine the amount to be paid for such license not less than
the minimum sum required by any general law upon the subject;
* provided, that any permits issued to a druggist may be re-
voked by the council at pleasure; and further, that any license issued
*
33 This statute provides that licenses granted to keepers of billiard saloons
under Gen. St. C. 88, shall be signed by the clerk of the city or town in which
they are granted, shall be recorded by him, and shall continue in force until
the 1st day of May next ensuing, unless sooner revoked, and that, when re-
voked, the clerk of the city or town shall give written notice of such revoca.
tion to the holder of the license.
Accord: Child v. Bemus, 17 R. I. 230, 21 Atl. 539, 12 L. R. A. 57 (1891).
FR.ADM. LAW.–11
'162
(Part 1
ADMINISTRATIVE POWER AND ACTION.
by the mayor and council for any purpose mentioned in this section
shall be revoked by the mayor and council upon the conviction of the
licensee of any violation of any law, ordinance, or regulation pertaining
to the sale of such liquors, and proceedings of appeal or error taken to
review such judgment or conviction shall in no wise affect the revoca-
tion of such license, or the effect of such conviction, until such ap-
pellate or error proceedings be finally determined, and such convic-
tion be finally annulled, revoked, or reversed."
It is made the duty of the mayor and council to revoke the license
"upon conviction of the licensee of any violation of any law, ordinance,
or regulation pertaining to the sale of” liquors. The language of the
statute is imperative. Any license "shall be revoked” upon such con-
viction. But it is contended that before the mayor and council can
legally revoke the license, notice must be given to the licensee in order
that he may show cause, if any exists, why the license should not be
revoked. In support of this contention it is insisted that the license is
a franchise, or public right, vested in the individual, and for which he
has paid a consideration, and therefore it has all the necessary ele-
ments of property under the provision of the Constitution that "no
person shall be deprived of life, liberty, or property without due process
of law." There is no vested right in a license to sell intoxicating liq-
uors, which the state may not take away at pleasure. Pleuler v. State,
11 Neb. 547, 10 N. W. 481. Such licenses are not contracts between
the state or municipality issuing them and the licensee, but are mere
temporary permits to do what otherwise would be unlawful. Barrie
v. Schultz, 34 N. Y. 657. They are subject to the direction of the
government, which may revoke them as it deems fit, and may be abro-
gated by the adoption of a municipal ordinance prohibiting the sale of
liquors. Columbus City v. Cutcomp, 61 Iowa, 672, 17 N. W. 47.
The law of 1881, commonly known as the "Slocumb Law," absolutely
prohibits the entire traffic in intoxicating liquors "by the most expres-
sive language," giving only an exception where the license or permit is
issued. Pleuler v. State, 11 Neb. 547, 10 N. W. 481. We therefore con-
clude that there is no such vested right or essential element of property
in a license as to bring it within the provision of the Constitution above
quoted.
But this does not entirely dispose of the question here presented;
for, if notice to the licensee was necessary to give the municipal au-
thorities jurisdiction, the acts of the council might still be void for
want of authority or power to act. A number of cases are cited by
plaintiff in error, holding that notice in the particular cases then under
consideration was necessary. These cases are: Plummer v. Com., 1
Bush (Ky.) 26; State ex rel. Heise v. Town Council, 6 Rich. Law (S.
C.) 404; Com. v. Moylan, 119 Mass. 109; and Gaertner v. City of
Fond du Lac, 34 Wis. 504.
In Plummer v. Com. one Shepherd was licensed by the county court
to keep a tavern. Before the expiration of the license, the county
Ch.4)
163
NOTICE.
court, without any notice, suspended the same until the next term of
court. During this period Plummer assisted Shepherd in retailing liq-
uors, and was indicted therefor. He justified under Shepherd's license.
To avoid this, the prosecutor offered in evidence the order of suspen-
sion, which was admitted over the objection of the accused. For this
the Court of Appeals reversed the judgment of conviction. The ac-
tion of the county court was had under section 9, c. 99, 2 Stanton's Rev.
St. Ky., which provided, in substance, that it should be the duty of
every trustee of a town, when informed that an offense was commit-
ted by a tavern keeper of his town, "to make the same known to the
judge of the county court, who shall cause the alleged offender to be
summoned to appear before him at a time and place designated, to
show cause why his license shall not be suspended until the next county
court, when the judge should "hear and decide the case," and make
such order as might be necessary. As the county judge had omitted
to cause Shepherd "to be summoned to appear before him," as plainly
required by statute, it was very properly held that the trial court erred
in admitting the order of suspension in evidence.
The case of State ex rel. Heise v. Town Council was where the
town council of Columbia had enacted an ordinance that upon a retailer
of spirituous liquors selling liquor to a slave, his license should be
forfeited; and it was held that under the charter no other penalties
than fines should be inflicted, and therefore the ordinance was void,
as well as the order of forfeiture under it.
The case of Com. v. Moylan was where the defendant was accused
of selling liquors in violation of law. Proof of the sale was made.
She relied on her license previously issued. The government then
introduced the record of the mayor and aldermen, showing a revocation
of the license, which was admitted over the objections of the defend-
ant. The record showed that the committee, before whom the ing
was had, reported to the council that in their opinion it was inexpe-
dient to take further action in the inatter. The report was accepted.
It was then ordered that the license be revoked. It was held by the
Supreme Court that it was not within the power of the council to ar-
bitrarily revoke the license, there being no proof of any violation of its
conditions. The statute of that state provided that "the mayor and
aldermen, or the selectmen of the city or town by which a license has
been issued, after notice to the licensee and reasonable opportunity to
be heard by them, or by a committee of their number, may declare
the license forfeited, upon proof satisfactory to them that he has vio-
lated, or permitted to be violated, any of the conditions thereof." Yet,
in the later case, Com. v. Hamer, 128 Mass. 76, decided by the same
court, it was held that a written notice to the licensee was not re-
quired, and that "if any notice is necessary," a verbal notice would be
sufficient.34
84 The question in this case was whether notice of the revocation was re-
quired to be given, after the license had been revoked.
164
(Part 1
ADMINISTRATIVE POWER AND ACTION.
1
In Gaertner v. City of Fond du Lac, the Supreme Court of Wiscon-
sin, by a dictum, says: “It would seem that the council of the city has
no authority to revoke a license upon judgments without giving the
licensee notice and opportunity to be heard, but the point is not here de-
cided." If that case is authority for anything, it would simply be that
when charges are preferred against a licensee for violation of the law,
it would probably be necessary that notice of the pendency of such
charges should be given before the question could be examined and
license revoked.
In this case, the statute makes no reference to the hearing of a com-
plaint by the mayor and council, but simply provides that “the license
shall be revoked by the mayor and council, upon conviction of the li-
censee of any violation of any law, ordinance, or regulation pertaining
to the sale of such liquors,” etc. No trial or investigation could be
had. The certificate of the police judge, showing a conviction of plain-
tiff in error, was before the council. They had but a simple min-
isterial duty to perform, in obedience to the plain mandate of the law,
and that was to revoke the license. It is stipulated that he was con-
victed of the offense stated in tlie certificate of the police judge. It
is admitted that the certificate was true. That being the case, no de-
fense could have been made, and no notice was necessary to give the
council jurisdiction.35
The judgment of the district court is therefore affirmied. 36
*
.
REX V. VENABLES.
(Court of King's Bench, 1725. 2 Ld. Raym. 1405.)
An order was made by two justices of the peace for the county of
Hertford, 15th November, 1923, reciting, that whereas it appeared
upon oath, that the defendant kept a common alehouse in the borough
of Hertford, and that he kept it as a disorderly house; whereupon the
said justices, for the reason aforesaid, and by reason a greater number
of alehouses was kept in the said borough than were necessary, by the
said order discharged and put away the selling ale from the said house,
and did suppress the said Robert Venables from keeping a common
aleliouse, &c. Afterwards the justices the 3d of June, 1724, made
another order, reciting the former orders, and a warrant under their
hands and seals commanding the constable to give notice of that or-
der, and that oath had been made before them, that the defendant was
served with that order, and reciting, that it appeared to them by the
oath of two persons named in that order, that since the defendant
had notice of that order, he had continually to the date thereof used
35 The opinion on the other two points is omitted.
Accord: People v. Meyers, 95 N. Y. 223 (1884); Sprayberry v. Atlanta, 87
Ga. 120, 13 S. E. 197 (1891); Genova's License, 3 Pa. Dist. 722 (1889).
88 The dissenting opinion of Maxwell, J., is omitted.
Ch. 4)
165
NOTICE.
the said house as an alehouse, and used commonly the selling of ale
and beer therein, contrary to the former orders; the said justices
therefore, by virtue of the statute, &c. ordered that the defendant
should be committed to gaol for three days, and until he should enter
into a recognizance, not to sell ale, &c.
The defendant having removed these orders by certiorari into this
court, Mr. Reeve took exception to both the orders, that it did not ap-
pear by either of them, that the defendant was summoned, and had
an opportunity of making his defence; whereas if he had been heard,
possibly he might have satisfied the justices, that the complaint was
groundless. That in all summary convictions, of which nature these
orders were, a summons was necessary to be shewn. So is 1 Salk.
181, Reg. v. Dier, where it is held by the court, that upon the con-
plaint, the justices ought to make a memorandum and issue a sun-
mons, and if the party will not appear, or cannot be found, they may
proceed; but there the conviction was quashed, because in the sun-
mons set out, the time of the appearance therein directed was impos-
*
sible. 37
THE COURT were unanimously of opinion, that the party in these
cases ought to be heard, and for that purpose ought to be summoned
on fact; and if the justices proceeded against a person without sum-
inoning him, it would be a misdemeanor in them, for which an in-
formation would lie against them. But since in these sorts of orders,
for suppressing alehouses, keeping bastards, &c., summonses have
not been set out, they would intend the justices having jurisdiction
had proceeded regularly, and that there was a summons; it not ap-
pearing by the order, that there was none, or that there had been an
ill summons; for where it appears there was an ill summons, that will
be fatal, and leave no room to make it good by intendment: which
answers the case, 1 Salk. 181.
And FORTESCUE, Justice, said, the case of the Queen v. King was
the very case in point. And the orders were confirmed, June 10, 1725.
But afterwards it being made to appear to the court by affidavits, that
the justices had proceeded in making the last order, without summon-
ing Venables; after having heard counsel for the justices, the court
gave leave to file an information against them.
PEOPLE, for Use of STATE BOARD OF HEALTH v. MCCOY.
(Supreme Court of Illinois, 1888. 125 Ill. 289, 17 N. E. 786.)
SCOTT, J.38 This suit was brought in the criminal court of Cook
county, under and by virtue of the provisions of section 12 of the act
of 1887 (Laws 1887, p. 228), to regulate the practice of medicine in
37 A portion of this case is omitted.
88 Only a part of the opinion of Scott, J., is printed.
166
(Part 1
ADMINISTRATIVE POWER AND ACTION.
*
this state, in the name of the people, for the use of the State Board of
Health, against John C. McCoy, alias J. Cresap McCoy, to recover
the statutory penalty imposed by that section for practicing medicine
without a certificate from the State Board of Health. On the trial,
the court found the issues for defendant and rendered judgment
against plaintiff for costs.
It is said the state board, in regard to revoking certificates issued to
physicians, must investigate, hear and determine certain questions, and
to the extent it exercises such powers its functions are judicial. It
is therefore claimed that the question whether a physician has been
guilty of “unprofessional or dishonorable conduct” is a question of fact,
the finding as to which, when submitted to the board, is final and con-
clusive, and is not open to review by other tribunals. The doctrine con-
tended for finds support in the decision of this court in People v.
Dental Examiners, 110 Ill. 180. Treating the record of the board,
in the matter of revoking the certificate that had been issued to de-
fendant, as having the force of a proceeding in its nature judicial on the
part of the board in a case where it had jurisdiction of the subject-mat-
ter to be investigated, yet the present record is fatally defective, for
the reason it is made to appear defendant had no notice of the proceed-
ings proposed to be taken against him. The prosecution put defendant
on the stand, and made him their own witness, and he distinctly stated,
at their instance, that the notice found in the record was never in fact
served upon him. The affidavit of service is not sufficient to overcome
his testimony in that respect. It is contrary to the analogies of the law
that a proceeding, in its nature judicial, should be obligatory and
conclusive upon a person not a party thereto; otherwise a party might
be deprived of important rights, with no opportunity to defend against
wrongful accusations. Whether the right to practice medicine or law
is property, in the technical sense, it is a valuable franchise, and one
of which a person ought not to be deprived, without being offered an
opportunity, by timely notice, to defend it.
The judgment will be affirmed. 30
*
39 Act 1887, § 9, did not expressly provide for notice to the person proceeded
against before revoking the certificate to practice medicine. The present act
(Laws 1899, p. 275, § 6) does.
See Century Digest, Process, $S 201–203. See, also, Oshkosh v. State, 59
Wis. 425, 18 N. E. 324 (1884); State v. Schultz, 11 Mont. 429, 28 Pac. 613
(1892).
Ch. 4)
167
NOTICE.
PEOPLE ex rel. LODES y. DEPARTMENT OF HEALTH OF
CITY OF NEW YORK.
(Court of Appeals of New York, 1907. 189 N. Y. 187, 82 N. E. 137, 13 L. R.
A. [N. S.] 894.)
Appeal from Supreme Court, Appellate Division, Second Depart-
ment.
Mandamus by the People of New York, on the relation of George
Lodes, against the Department of Health of the City of New York,
to compel the board of health of the respondent to rescind its action re-
voking permits issued to the relator to sell milk in the borough of
Brooklyn. From an order of the Appellate Division (116 App. Div.
890, 102 N. Y. Supp. 1145), affirming an order of the Special Term (51
Misc. Rep. 190, 100 N. Y. Supp. 788), granting a peremptory writ,
respondent appeals. Reversed, unless the relator within 20 days elects
to demand an alternative writ, in which case proceedings should be
remitted to the Special Term.
HAIGHT, J. On the 17th day of April, 1903, the board of health
of the department of health of the city of New York issued to the re-
lator, George Lodes, six permits to sell and deliver milk from wagons
and from his store in the borough of Brooklyn, which permits were re-
voked by the board of health, without notice to him, on the 17th day of
January, 1906. Thereupon the relator applied for a peremptory writ
of mandamus to compel the board of health to rescind its action in
revoking the permits, alleging that there was no public necessity for
the revocation of the permits; that the action of the board was ar-
bitrary and unreasonable, tyrannical and oppressive in the extreme,
and beyond the power and authority conferred upon it by law. On the
hearing of such application, the board of health presented affidavits
showing that the relator, his wife, and the drivers of his wagons had
been four times convicted of selling, or offering for sale, adulterated
milk, and that their action in revoking his permits was based upon
such repeated violations of the law, and that by reason thereof they
deemed him an unfit person to traffic in milk. The Special Term
granted the peremptory writ prayed for, and the affirmance of that
order by the Appellate Division is now brought up for review.
The Sanitary Code of the city of New York, which was continued
in force by the charter of the city (section 1172, c. 466, p. 499, Laws
1901), provides: "Section 56. No milk shall be received, held, kept,
offered for sale or delivered in the city of New York without a per-
mit, in writing, from the board of health and subject to the conditions
thereof." The provisions of the Sanitary Code, alluded to, have been
held to be reasonable and a valid exercise of the police powers, and
violative of no provision of the Constitution, either state or federal.
People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440, 67 N. E. 913,
108 Am. St. Rep. 781, affirmed 199 U. S. 552, 26 Sup. Ct. 144, 50 L.
168
(Part 1
ADMINISTRATIVE POWER AND ACTION.
1
Ed. 305. It has also been held that the board of health has power
to revoke permits to sell inilk, notwithstanding no ordinance had been
adopted by the board authorizing such revocation. Metropolitan Milk
& Cream Co. v. City of New York, 113 App. Div. 377, 98 N. Y. Supp.
894, affirmed in this court 186 N. Y. 533, 78 N. E. 1107. These ques-
tions we regard as settled.
The only question remaining to be disposed of is as to whether the
relator was entitled to notice and a hearing by the board of health
before revoking his permits. The answer to this question may depend
upon the soundness of the relator's contention that the permits issued
to him were property, of which, under the Constitution, he cannot be
deprived without due process of law. He maintains that he has es-
tablished and built up a business of selling milk at his store and has a
regular line of customers whom he supplies daily; that he has estab-
lished a milk route over which his wagons are sent daily distributing
milk to the inhabitants of the city in that locality; and that this es-
tablished business has become property, of which he cannot be de-
prived. But the good will of his business, so established, must not
be confounded with the permits granted to him to engage in that busi-
ness.
He was never licensed to sell impure and adulterated milk, and
after he had obtained his permits to sell and undertook the securing
of customers, he knew that he was engaging in a business which must
be conducted under the supervision of the board of health of the city
subject to the police powers of the state, and that such permits were
subject to revocation. He knew that the permits contained no con-
tract between the state, or the board of health, and himself, giving him
any vested right to continue the business, and that it would become the
duty of the board to revoke his license, in case he violated the statute,
or the conditions under which it was granted.
Milk is an article of food extensively used by our inhabitants and
is chiefly relied upon to support the lives of infant children. If im-
pure or adulterated, or polluted with germs of dangerous or infectious
diseases, its use becomes highly dangerous, and the health and wel-
fare of the public demand speedy and, in some cases, instant prevention
of its distribution to the people. While it is the duty of the board of
health to watch and, through its inspectors, detect violations of the
statute and the conditions imposed by it, it has been given no judicial
power to hear, try, and determine such violations, but inust act upon
the information obtained by it through its own channels of inquiry.
In Cooley's Constitutional Limitations (7th Ed.) p. 887, it is said that:
"Dealers may also be compelled to take out a license, and the license
may be refused to a person of bad reputation, or be taken away from
a party detected in dishonest practices.” [The court then cites, and
quotes from, Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34
L. Ed. 620, Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231,
32 L. Ed. 623, Metropolitan Board of Excise v. Barrie, 34 N. Y. 657,
and Matter of Lyman, 160 N. Y. 96, 54 N. E. 577.]
Ch. 4)
169
NOTICE.
We incline to the view that the authorities to which reference has
been made are conclusive upon the subject; and, although the relator
had established a business and secured customers under the permits
granted to him, the permit itself cannot be treated as property in any
legal or constitutional sense, but was a mere license revocable by the
power that was authorized to issue it. The statute, as we have seen,
has given the board of health no power to hear, try, or determine cases.
Its duties are therefore not judicial, but executive or administrative,
and at times must be exercised summarily, as was said in Metropolitan
Board of Health v. Heister, 37 N. Y. 661: "The power to be exercised
by this board upon the subjects in question is not judicial in its char-
acter. It falls more properly under the head of an administrative du-
ty.” The court in that case had under consideration the question of
the abating of a nuisance, or the recovery of a penalty therefor, oc-
casioned by the alleged maintenance of a slaughterhouse in a densely
populated portion of the city in such a manner as to endanger the
health of the inhabitants. But we see no reason why the power of
the board of health in that case should differ from the powers of the
board in this case. Each have reference to the preservation of the
public health, and, if their powers are administrative in that case, they
must be in this case. [The court then cites and quotes from People
ex rel. Copcutt v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 23 L.
R. A. 481, 37 Am. St. Rep. 522, ante, p. 139.] See, also, People ex
rel. Schau v. McWilliams, 185 N. Y. 92, Y N E. 1785, in which Chief
Judge Cullen has recently reviewed the authorities upon the subject,
pointing out the difference between judicial powers and the action of
administrative or executive officers.
The powers of the members of the board of health being admin-
istrative merely, they can issue or revoke permits to sell inilk in the
exercise of their best judgment, upon or without notice, based upon
such information as they may obtain through their own agencies, and
their action is not subject to review either by appeal or by certiorari.
Child v. Bemus, 17 R. I. 230, 21 Atl. 539, 12 L. R. A. 57; State ex
rel. Cont. Ins. Co. v. Secretary of State, 40 Wis. 220; Wallace v.
Mayor, etc., of Reno, 27 Nev. 71, 73 Pac. 528, 63 L. R. A. 337, 103
Am. St. Rep. 747. If, however, their action is arbitrary, tyrannical,
and unreasonable, or is based upon false information, the relator may
have a remedy through mandamus to right the wrong which he has
suffered. If the relator can show that he and those acting for him have
not been convicted of violating the statute and the conditions imposed
in the granting of the permits, and that consequently he is a fit and
proper person to engage in the sale and distribution of milk among the
inhabitants of the city, then he would be entitled to the relief asked for.
But if he desired to subinit such evidence, he should have asked for
an alternative rather than a peremptory writ. If, however, the charge
of the board is true that he has been convicted of the offenses charged
the number of times stated, the conclusion is irresistible that he was an
170
(Part 1
ADMINISTRATIVE POWER AND ACTION.
improper person to be intrusted with the permit of the city to dispense
to the inhabitants of the city a food product that was liable, if adulter-
ated, to endanger the health of the people.
It is now contended, however, that the members of the board of
health are judicial officers and act as such by virtue of the provisions
of section 1173 of the Greater New York charter. 3 Laws 1901, p.
500, c. 466. It will be necessary to consider the whole section, for we
think the subsequent provisions indicate the intention and purpose of
the fornier. It is as follows: "The actions, proceedings, authority,
and orders of said board of health shall at all times be regarded as
in their nature judicial, and be treated as prima facie just and legal.
All meetings of said board shall in every suit and proceeding be taken
to have been duly called and regularly held, and all orders and pro-
ceedings to have been duly authorized, unless the contrary be proved.
All courts shall take judicial notice of the seal of said board and of
the signature of its secretary and chief clerk.” Were these provisions
intended to change the character of the board of health from admin-
istrative to judicial officers? We think not. They do not state that
the board shall act judicially, or that its orders shall be regarded and
treated as the orders of a judge or court, but merely that they shall be
regarded in their nature judicial, and that they shall be treated as prima
facie just and legal, and that all orders and proceedings have been duly
authorized. To our minds it is quite apparent that the legislative
purpose and intent was to invest the orders and proceedings of the
board of health with the presumption that they were duly authorized
and were just and legal, and that it was not intended to change the
members of the board from administrative to judicial officers.
These provisions have already been the subject of judicial con-
sideration, with a result that accords with our views. In the case of
Golden v. Health Department of City of N. Y., 21 App. Div. 420, 421,
47 N. Y. Supp. 623, Justice Rumsey says: “It is quite true that it is
provided that the action, proceedings, authority, and orders of the board
of health shall at all times be regarded as in their nature judicial, and
be treated as prima facie just and legal. This provision of the statute
has been in existence for many years, but it has never been regarded
as making the board of health a court whose orders are final and
conclusive. Indeed, it makes no provision for any such thing. The
statute prescribes the effect which shall be given to these orders, and
that is that they shall be regarded as prima facie legal. Thus much
was clearly within the power of the Legislature; and the statute im-
poses upon persons who question the orders of the board of health
in such cases the duty of establishing that the facts upon which they
are based do not exist, or that the orders themselves are beyond the
authority given to the board by the law. Further than that the stat-
ute does not go.”
City of Buffalo v. Chadeayne, 134 N. Y. 163, 31 N. E. 443, was an
action to recover a penalty for an alleged violation of an ordinance
Ch. 4)
171
NOTICE.
prohibiting the erection of a wooden building within the fire limits of
the city. The common council had passed a resolution giving the de-
fendant permission to erect such building. He thereupon entered upon
the construction of the building and incurred liabilities for work and
material and had a property interest in them. Thereafter the com-
mon council rescinded the permit, and after the defendant had com-
pleted the building the city brought action for a penalty. It was held
that, after the defendant had entered upon the construction of the
building pursuant to the permit, and had entered into contracts and
incurred liabilities, he acquired a vested right of property therein of
which he could not be deprived. This case is not in conflict with those
which we have referred, but rather is in accord therewith, and
illustrates the difference that exists between permits under which a
vested right may be acquired and those in which such rights do not
vest. One is a permit to construct a building, and the other a permit
to peddle milk. To the same effect is Dobbins v. Los Angeles, 195 U.
S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169, and City of Lowell v. Archam-
bault, 189 Mass. 70, 75 N. E. 65, 1 L. R. A. (N. S.) 458.
The order should be reversed, and the application for a inandamus
denied, with costs in all courts, unless the relator within 20 days elects
to demand an alternative writ, in which case the proceedings should
be remitted to the Special Term, and the costs should abide the final
award of costs.
VANN, J. (dissenting). If the order revoking the license of the re-
lator was an administrative act, no notice to him was required; but,
if it was an act done in the exercise of judicial power, notice and an
opportunity to be heard were essential before he could be deprived
of the right to carry on a lawful business. The Greater New York
charter provides that: "The actions, proceedings, authority and
orders of said board of health shall be at all times regarded as in their
nature judicial and be treated as prima facie just and legal.” Laws
1901, p. 500, c. 466, § 1173. While it is difficult to see how all acts
of the board of health can be “in their nature judicial," the Legislature
had the right to provide that they should be so regarded, and in view
of its express command I fail to see how we can hold that the order of
revocation was an administrative act. Notice was given in the only
case involving the power to revoke that has been before us prior to
the one now under consideration. Metropolitan Milk & Cream Co. v.
City of New York, 113 App. Div. 377, 98 N. Y. Supp. 894; 186 N. Y.
533, 78 N. E. 1107. While summary action is often necessary in cases
affecting the public health, still the danger from delay caused by
giving short notice is less than the danger that may arise from action
with no notice at all. The respondent should at least have had an
opportunity to raise an issue as to whether he had ever been convicted
by a court of competent jurisdiction of violating the Sanitary Code,
or to show that any judgment of conviction had been reversed or set
aside.
172
(Part 1
ADMINISTRATIVE POWER AND ACTION.
Moreover, a license under the police power, as distinguished from
the taxing power, involves the right to regulate, but not to prohibit,
and it cannot be exercised capriciously or arbitrarily. As the right to
revoke is not expressly conferred, but is implied from the right to
grant, the rule against arbitrary or capricious action applies with
equal force to the revocation of licenses. One of the most effective
safeguards against the arbitrary acts of public officials is an op-
portunity to be heard. The revocation of the respondent's license
involved the destruction of his business, which was useful, legitimate,
and profitable. Since the power to revoke is not expressly given, but
is implied from the power to grant, I think the law also implies that
notice must be given before an act can be done which involves such
serious loss to the licensee. This involves the conclusion that the rev-
ocation of such a license as the one in question is in its essence judi-
cial, independent of the statutory requirement that it shall be so re-
garded. I vote to affirm.
CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HISCOCK, and
CHASE, JJ., concur with HAIGHT, J. VANN, J., reads dissenting
opinion.
SECTION 22.-IN REMOVAL FROM OFFICE
DULLAM v. WILLSON.
A
*
(Supreme Court of Michigan, 1884. 53 Mich. 392, 19 N. W. 112, 51 Am.
Rep. 128.)
Quo warranto.
CHAMPLIN, J.40 * That issue is whether, under the Con-
stitution and laws of Michigan, the Governor lias power to remove a
state officer by such action as was taken in this case, viz.: An act of
removal evidenced by writing, under the hand and seal of the execu-
tive, filed in the executive office, with notice thereof to the officer re-
moved, communicating to him the alleged grounds of removal, but
without giving him notice of charges, complaint or claim of official
misconduct or neglect of duty, or opportunity of hearing, or de-
fense.
The Constitution (article 12, § 8) provides that “the Governor shall
have power and it shall be his duty, except at such time as the Legis-
lature may be in session, to examine into the condition and admin-
istration of any public office, and the acts of any public officer, elective
or appointed, to remove froin office for gross neglect of duty, or for
corrupt conduct in office, or any other misfeasance or malfeasance
*
40 Only a part of the opinion of Champlin, J., is printed..
C11. 4)
173
NOTICE.
*
*
*
therein, either of the following state officers, to wit: The Attorney
General,
or any other officer of the state, except legisla-
tive and judicial, elective or appointed, and to appoint a successor for
the remainder of their respective unexpired term of office, and re-
port the causes of such removal to the Legislature at its next session.
This provision was not contained in the Constitution of 1835. It was
added to the present Constitution, by amendment, by the Legislature
of 1862 (Laws 1861, p. 588), ratified by the people in 1862.
It will be observed that the section of the Constitution under con-
sideration only authorizes the Governor to remove for specified causes.
He is not authorized to exercise the power at his pleasure or caprice.
It is only when the causes named exist that the power conferred
can be exercised. It follows as a necessary consequence that the fact
must be determined before the reinoval can be made. It is also clear
that the fact must be determined by some tribunal invested with judi-
cial power, for a determination whether specified causes exist is the
exercise of judicial functions. Judicial determination of facts must
rest upon and be preceded by notice, proof and hearing. And the
first question is, what is the proper tribunal in which such facts are
to be ascertained ? In my opinion this provision of the Constitution
requires no legislation to make it effective. Read in the light of the
history of the times, and the surrounding circumstances when it was
adopted, the grant of power is to the Governor coupled with the duty
enjoined to examine into the condition and administration of any
public office, and to examine into the acts of any public officer, and to
remove from office for gross neglect of duty, or for corrupt conduct
in office, any of the officers specified. The amendment for this pur-
pose clothes him with judicial power. It is implied in the grant, and
without it the grant would be nugatory and ineffectual to accomplish
the purposes for which it was given.
The counsel for the respondent, while granting this, insist that such
removal cannot be made without charges, notice and an opportunity
for defense, and this I consider the important question in the case.
Unless it is the manifest intention of the section under considera-
tion that the proceedings should be ex parte as well as summary, a re-
moval without charges, notice and an opportunity for defense can-
not be upheld. The exercise of such power, in such manner, would be
too despotic for any attempt at vindication in a country which boasts of
the utmost liberty compatible with the safety of the state, and is en-
tirely opposed to the genius of our free institutions. I do not think
the people, when they adopted this amendment, intended or supposed
that they were placing such unlimited power in the hands of any
man.
In Ramshay's Case, 18 Ad. & El. (N. S.) 190, it was said: "The
Chancellor has authority to remove a judge of a county court only
on the implied condition prescribed by the principles of eternal jus-
tice, that he hears the party accused. He cannot legally act upon such
*
*
.
.
174
(Part 1
ADMINISTRATIVE POWER AND ACTION.
an occasion without some evidence being adduced to support the
charges, and he has no authority to remove for matters unconnected
with inability or misbehavior; and where evidence has been given in
support of them we think we cannot inquire into the amount of evi-
dence or the balance of evidence, the Chancellor acting within his
jurisdiction, being the constituted judge upon this subject.” In Wil-
liams v. Bagot, 3 B. & C. 786, Mr. Justice Bayley said: "It is contrary
to common justice that a party should be concluded unheard.” The
case of The Queen v. The Archbishop of Canterbury, 1 El. & El. 545,
arose under a statute which enacted that a curate, whose license shall
have been revoked by the bishop, might "appeal to the archbishop of
the province, who should confirm or annul such revocation as to him
shall appear just and proper.” An appeal was taken to the archbishop,
who, without giving the appellant an opportunity to be heard, con-
firmed the revocation. Lord Campbell said: "No doubt the archbishop
acted most conscientiously, and with a sincere desire to promote the
interests of the church; but we all think that he has taken an erroneous
view of the law. He was bound to hear the appellant, and he has
not heard him. It is one of the first principles of justice, that no man
should be condemned without being heard.” Mr. Justice Wightman
said “that, ex debito justitiæ, every one has a right to be heard before
he is condemned.”
An act of Parliament gave authority to the bishop to decide, upon
affidavit or upon his own knowledge, whether or not the duties of
the parish had been inadequately perfornied, in consequence of the
negligence of the incuinbent, and whenever it should so appear to his
satisfaction he could, by certain proceedings, appoint a curate in place
of the incumbent. The bishop, proceeding upon his own knowledge,
without notice or an opportunity afforded to the incumbent, adjudged
that the duties of the vicarage of the parish were inadequately per-
formed by reason of the vicar's negligence, and proceeded to appoint
another person to the place. The incumbent refused to surrender to
the new appointee. Lord Lyndhurst held that the language of the act
imported inquiry, and a judgment as the result of that inquiry. He
said: “He is to form his judgment. It is to appear to him from affi-
davits laid before him; but, is it possible to be said that it is to appear
to him and that he is to form his judgment from affidavits laid before
him on the one side, without hearing the other party against whom
the charge of negligence is preferred, which is to affect him in his
character and in his property? That he is to come to that conclusion,
without giving the other party an opportunity of meeting the affida-
vits by contrary affidavits, and without being heard in his own de-
fense-without having an opportunity even of being summoned for
that purpose—as in the present instance; there being no summons, for
the monition was proceeded in immediately, without any intimation
whatever from the bishop of his intention to proceed, to the party
against whom that requisition proceeds.” And he further held that
Ch. 4)
175
NOTICE.
when the bishop proceeded, “on his own knowledge, the same course
of proceeding is necessary, because a party has a right to be heard for
the purpose of explaining his conduct; he has a right to call witnesses,
for the purpose of removing the impression made on the mind of the
bishop; he has a right to be heard in his own defense.” Capel v.
Child, 2 Cr. & J. 558.
[The opinion then cites and discusses the following cases: Page v.
Hardin, 8 B. Mon. (Ky.) 672; Willard's Appeal, 4 R. I. 601; Com. v.
Slifer, 25 Pa. 23, 64 Am. Dec. 680; Meade v. Deputy Marshal, 1
Brock. 324, Fed. Cas. No. 9,372; Chase v. Hathaway, 14 Mass. 222.1
The line of authority is not by any means exhausted, but enough
cases have been cited to show that the action of the Governor in this
case cannot be upheld as a legal and proper exercise of the power
conferred upon him. There must be charges specifying the particu-
lars in which the officer is subject to removal. It is not sufficient to
follow the language of the Constitution. The officer is entitled to
know the particular acts of neglect of duty, or corrupt conduct, or
other act relied upon as constituting malfeasance or misfeasance in
office, and he is entitled to a reasonable notice of the time and place
when and where an opportunity will be given him for a hearing, and he
has a right to produce proof upon such hearing. What length of
time notice should be given we do not determine; it must depend, in
a great measure upon tlie circumstances of each case.
I have carefully examined the authorities cited upon the brief of the
learned counsel for relator in support of the position that no notice is
required to be given, and that the action of the executive is final and
conclusive. It is sufficient to say, without commenting specially upon
them, that the reasoning of those cases does not commend itself to my
judgment. They appear to me to be opposed, not only to the decided
weight of authority, but also to the fundamental principles of justice.
In what I have said upon the law of this case I have not cast the least
imputation upon the motives of the executive. The same presumptions
of good faith and honest desire to act within legal and constitutional
limits are accorded to him as to either of the other co-ordinate branches
of the government, and his motives are not the subject of criticism.
I have no doubt that he acted under the impression that he was entirely
within the line of his duty as well as of law, and that he believed that
the removal of respondent was demanded by the best interests of the
public service.
Be that as it may, the relator has not made out a case for the in-
tervention of the court, and judginent must be entered for respond-
ent. 41
41 Accord: Com. ex rel. Bowman v. Slifer, 25 Pa. 23 (1855); Ham v.
Board of Police of Boston, 142 Mass. 90, 7 N. E. 540 (1886); State v. Haw-
kins, 44 Ohio St. 98, 5 N. E. 228 (1886); State ex rel. Denison v. St. Louis,
30 Mo. 19, 1 S. W. 757 (1886); State ex rel. Attorney General v. Smith, 35
Neb. 13, 52 N. V. 700, 16 L. R. A. 701 (1802).
176
(Part 1
ADMINISTRATIVE POWER AND ACTION.
*
WILCOX v. PEOPLE,
(Supreme Court of Illinois, 1878. 90 Ill. 186.)
SHELDON, J. 42
It being found that the power of re-
moval existed in the Governor, the inquiry remains whether it was
validly exercised. Relators say not--that the power granted was
judicial in its nature, and should have been exercised according to
judicial methods; that is, there shouid have been a specific charge,
notice of it, opportunity for defense and hearing, and proof to support
the charge. Undoubtedly, the Governor can only remove for some
one of the causes specified; but the removal here was for one of
these causes-incompetency. The Governor ascertained the existence
of the cause here, and made the removal on account of it. The Con-
stitution is silent as to who shall ascertain the case of removal or the
mode of its ascertainment. It simply gives to the Governor the power
to remove any officer whom he may appoint, in case of incompetency,
etc. It follows, then, that it is with the Governor, who is to act in the
matter, to determine, hiniself, whether the cause of removal exists,
from the best lights he can get; and, no mode of inquiry being pre-
scribed for him to pursue, it rests with him to adopt that method of
inquiry and ascertainment as to the charge involved which his judg-
ment may suggest as the proper one, acting under his official responsi-
bility, and it is not for the courts to dictate to him in what manner he
shall proceed in the performance of his cluty, his action not being
subject to their revision. The Constitution of this state not only de-
clares that the powers of the governinent of the state shall be divided
into three distinct departments, but has expressly prohibited the ex-
ercise of any of the powers properly belonging to one by either of the
others.
In the case of People v. Bissell, 19 Ill. 229, 232, 233, 68 Am. Dec.
591, where this court discussed very fully the theory of distribution
of powers, and the extent of limitations upon each department, it
was said: “The Governor is and must be as independent of us as is
the Legislature, or as we are of either of them.” “When acting with-
the limits assigned to each, neither can control nor dictate to the
others.”
The case of People v. Higgins, 15 Ill. 110, is a parallel one with the
present, except that the power of removal was exercised there by
trustees of an institution instead of the executive, and it covers in
principle the precise question here raised, and must, we think, be con-
sidered as decisive of it against the relators. The case is a very fully
considered one, and contains so full an exposition of the principles
applicable to this subject that further enlargement upon them is super-
fluous. The case involved the title to office of the medical superin-
42 Only a portion of the opinion of Sheldon, J., is printed.
Ch. 4)
177
NOTICE.
tendent of the Illinois Hospital for the Insane, an institution founded
by the state. The medical superintendent was an officer constituted by
the act creating the trustees who, as a body corporate, governed the
institution. His tenure of office was for ten years. Under the law,
power was given to the trustees to remove the superintendent for in-
fidelity to the trust reposed in him, or incompetency to the discharge
thereof. The trustees removed Higgins, the superintendent, by resolu-
tion, for the reason alleged that he did not possess the kind of quali-
fications which are necessary to the discharge of the duties of said
office.” It was there insisted, as here, that specific and formal charges
should have been preferred against the superintendent, that he should
have had a formal notice of the time and place of the trial of the
charges, and that a regular trial should have been had upon the
testimony of witnesses. To which the court answered: “The statute
has made none of these formalities necessary, nor does the common law
so interpose and attach itself to the statute as to require them." It
was said that the trustees, in determining as to the existence of the
cause of removal, might act upon their own observation, and exercis-
ing their own best judgment, as well as upon facts detailed by others
or upon the opinions of witnesses. The case answers the objection
made here, that the executive order of removal is void upon its
face, as not stating any lawful ground of removal. In stating the
cause of removal, the order has adopted the very language employed
in the Higgins Case, which the court held there as describing "in-
competency," as being language equivalent theretoma delicate and
inoffensive form of stating that cause of removal. The order, then,
does state that cause of removal, the language used to describe it
having the warrant of judicial sanction.
In other cases this court has decided that where the law has vested
a quasi judicial power, even in subordinate administrative officers,
the court will only inquire whether the officer has acted within the
power, and will not attempt to substitute its own judgment or dis-
cretion for that of the officer, and will not supply any other conditions
to the exercise of their discretionary power than such as the law has
provided. Spencer & Gardner v. People, 68 111. 510; Elliott v. City
of Chicago, 48 Ill. 293; Porter v. Rockford, Rock Island & St. Louis
R. Co., 76 Ill. 561. The doctrine of these cases applies with added
force to a case of executive action.
* * 43
43 Accord: State ex rel. Attorney General y. Doherty, 25 La. Ann. 119, 13
Am. Rep. 131 (1873); Keenan v. Perry, 24 Tex. 253 (1859).
See, also, State v. McGarry, 21 Wis. 496 (1868).
FR.ADM. LAW.-12
178
(Part 1
ADMINISTRATIVE POWER AND ACTION.
PEOPLE ex rel. GERE v. WHITLOCK.
(Court of Appeals of New York, 1883. 92 N. Y. 191.)
Appeal from judgment of the General Term of the Supreme Court,
in the Fourth Judicial Department, entered upon an order made
October 20, 1882, which affirmed a judgment in favor of defendants,
entered upon a decision of the court on trial at Special Term.
This action was in the nature of a quo warranto to try the title of
defendants to the office of police commissioners of the city of Syra-
cuse.
On the 29th day of August, 1881, the mayor of Syracuse addressed
to each of the relators a written notice that he had removed him
from the office of police commissioner, of which he was then an in-
cumbent, by virtue of the act (chapter 559, Laws of 1881), and on the
same evening he submitted to the cominon council a statement of
his reasons for such removal, together with a message appointing the
defendants to fill the vacancies thereby created. No notice of the
mayor's intention had been given to the relators, or to either of them,
no charges were presented, and no hearing, or opportunity of hear-
ing, or explanation was afforded to them.
The defendants immediately afterward qualified as such police com-
missioners, and took possession of the books and papers of the board,
and have ever since exercised the duties of the office to the exclusion of
the relators.
The statute authorized the mayor to remove from office any com-
missioner "for any cause deemed sufficient to himself."
DANFORTH, J.44
The next position of the relators raises
a more interesting general question: Whether they were entitled to
have notice or be heard before the final action of the mayor. At
common law there could be no doubt as to this. Bagg's Case, 11
Coke, 99, Rex, v. Gaskin, 8 Term Rep. 209, and many others cited
by the learned counsel for the appellant, stand upon the principle that
no one shall be condemned unheard; but this, too, when applied to
the term of office, is within the control of the Legislature, and as it
gave the power to appoint, may also give the power to remove. Const.
art. 10, § 3; People ex rel. Sims v. Board of Fire Commissioners of
the City of New York, 73 N. Y. 437. In the act before us (Laws
1881, c. 559, § 1) the power of removal has been expressly conferred
upon the mayor, to be exercised as to him shall seem meet. In People
ex rel. Mayor v. Nichols, 79 N. Y. 582, cited by the appellant, the
statute requires, not only that cause for removal should exist, but
also that the officer should have an opportunity to be heard. The
statute before us lacks both conditions. No opportunity to be heard is
given, and it is enough if the mayor thinks there is sufficient cause. It
4 4 The statement of facts is abridged, and only a portion of the opinion of
Danforth, J., is printed.
Ch. 4)
179
NOTICE.
may or may not exist, except in his imagination; but his conclusion is
final.
The diligence of appellants' counsel has found no case like it, and
those cited by him do not apply. They require either the actual ex-
istence of "cause," or "sufficient cause" for removal, and so by impli-
cation impose investigation before action, or by express language give
a hearing to the accused member or official. Here the removal is to
be determined summarily, and is intrusted to the unrestrained dis-
cretion of the mayor. Nor is this without a precedent. Among other
cases, like power is given to the Governor over the superintendent of
public works, and to the latter over his assistant superintendents
(Const. N. Y. art. 5, § 3), and to the board of commissioners of the
fire department of New York over certain subordinates (Laws 1873,
c. 335, § 28). Under that statute it was held that the power of removal
was to be exercised at pleasure, except in cases where there was an
express limitation to a removal after notice and a hearing, and for
cause. People ex rel. Sims v. Board of Fire Com'rs, supra.
We are, therefore, of opinion that no reason for a reversal of the
judgment appealed from is shown, and it should be affirmed. 45
PEOPLE ex rel. FONDA V. MORTON et al.
(Court of Appeals of New York, 1896. 148 N. Y. 156, 42 N. E. 538.)
Appeal from Supreme Court, General Term, Third Department.
Proceedings on the relation of Fred P. Fonda against Levi P.
Morton and others for a writ of mandamus. From an order of the
General Term, without opinion, affirming an order of the Special Term
denying the writ, relator appeals. Affirmed.
ANDREWS, C. J. The relator, an honorably discharged Union sol-
dier, was appointed on the 29th of January, 1888, an orderly in the
capitol at Albany, at a salary of $60 a month, and continued to act as
orderly until the 28th of February, 1895, when he was discharged
by the superintendent of public buildings, with the approval of the
trustees, consisting of the Governor of the state, the Lieutenant
Governor, and the Speaker of the Assembly. His duties were to wash
and clean floors, and to act as policeman and guide in the capitol.
After his discharge he applied for a peremptory writ of mandamus
directing his reinstatement in his position, claiming that his discharge
was unlawful. It appeared from the return to his application that he
was discharged for cause, or, as stated therein, for "incompetency and
45 See Trainor v. Board of Auditors, 89 Mich. 102, 50 N. W. 809, 15 L. R. A.
95 (1891): Supervisors given power to remove officer when in their opinion
he is incompetent to execute properly the duties of his office, or when, on
charges and evidence, they shall be satisfied that he has been guilty of official
misconduct or habitual or willful neglect of duty, construed to permit re-
moval for incompetence without charges, notice, or hearing.
180
(Part 1
ADMINISTRATIVE POWER AND ACTION.
conduct inconsistent with said position.” The relator, without denying
the fact so alleged in the return, insisted, notwithstanding, that he
was entitled to the peremptory writ, and the fact so returned must be
.taken as true in this proceeding. The discharge of the relator was
not preceded by formal charges, or by notice to the relator, or an op-
portunity to be heard as to the cause of his dismissal. This presents
the only question in the case whether the relator was entitled to a
notice and hearing before he could be removed.
By section 4, subd. 3, of the public building law (chapter 227 of the
Laws of 1893), which was a substantial re-enactinent of chapter 349
of the Laws of 1883, the superintendent of public buildings is author-
ized, "subject to approval of the trustees, to appoint all persons neces-
sary in the maintenance departinent of the public buildings and
grounds under his charge, and suspend and remove any of them, and
prepare rules and regulations for their government. In the appro-
priation bills passed by the Legislature in each successive year, com-
mencing with 1886, there was inserted in the clause making an appro-
priation for the care of the public buildings, the salary of the
superintendent, and the services of orderlies and watchmen, and
other expenses, a proviso that the orderlies and watchimen who should
receive any portion of the money so appropriated "shall be persons
who are citizens of the state of New York, and who served in the
Union army or navy during the late war, and have been honorably
discharged therefrom; and such honorably discharged persons shall
not be subject to civil service rules of examination.” Laws 1886, p.
650. If there was no other legislation affecting the present question,
the right to discharge orderlies employed in the capitol, summarily,
would admit of no question. The power to remove employés is given,
in express terms, by the public building act, to the superintendent, with
the approval of the trustees, without qualification; and, even in the
absence of such specific power, the rule is well settled that the power
to appoint to the public service carries with it, to the appointing power,
in the absence of limiting words or of a fixed ternı, the right to remove
the appointee at pleasure. People v. Robb, 126 N. Y. 180, 27 N. E.
267, and cases cited.
But the relator relies upon chapter 716 of the Laws of 1894,
which was an act amending chapter 312 of the Laws of 1884, entitled
"An act respecting the employment of honorably discharged Union
soldiers and sailors in the public service of the state of New York,”
as containing a limitation upon the power of removal of Union soldiers
and sailors employed in the public service, applicable to the position
of the relator. The original act of 1884 related to preferences in
public employment only, and declared that honorably discharged Union
soldiers and sailors, not incapacitated, and possessing the requisite
qualifications, should be preferred for appointment and employment
in the public departments and upon all public works of the state. This
act was amended by chapter 464 of the Laws of 1887 by extending it
Ch. 4)
181
NOTICE,
so as to subject cities, towns, and villages to the same rule, and a
section was added enjoining upon all officials and persons possessing
the power of appointment a faithful compliance with the act. The
obligation to give preference was, after the passage of the original
act and the amendment of 1887, and cognate acts, sought to be en-
forced in the courts by Union soldiers, applicants for appointment to
public office; among others, by an applicant for the office of superin-
tendent of public works of a village (People v. Village of Saratoga
Springs, 54 Hun, 16, î N. Y. Supp. 125); for employment as court
crier (People v. Wendell, 57 Hun, 362, 10 N. Y. Supp. 587); for the
office of village attorney (People v. Village of Little Falls [Sup.] 8 N.
Y. Supp. 512; Id., 54 Hun, 638, 8 N. Y. Supp. 960); collector of taxes
(People v. Barden, 55 Hun, 612, 8 N. Y. Supp. 960); health inspector
(People v. Summers, 56 Hun, 644, 9 N. Y. Supp. 700); and in other
cases. These attempts generally failed. The relator in such an ap-
plication could not show that he was entitled in preference to other
Union soldiers, and the decision of the appointing power as to fitness,
actual or relative, must generally, from the nature of the case, be final.
This court in People v. Lathrop, 142 N. Y. 113, 36 N. E. 805, had
occasion to consider whether the act of 1884, giving preferences in
public employments to Union soldiers and sailors, limited the power of
removal of a Union soldier, who held a public employment; and the
court held that it affixed no restriction on this power, and in no way
affected the power of removal, as it existed independently of the act.
The amendment of 1894 for the first time introduced into the act
a restriction on the power of removal of Union soldiers and sailors
employed in the public service. The first section of the act of 1884
was amended so as to read as follows: "Section 1. In every public
department and upon all the public works of the state of New York,
and of the cities, towns and villages thereof, and also in non-competi-
tive examinations under the civil service rules, laws or regulations of
the same, wherever they apply, honorably discharged Union soldiers
and sailors shall be preferred for appointment and employment; age,
loss of limb or other physical impairment which does not in fact in-
capacitate, shall not be deemed to disqualify them, provided they
possess the business capacity necessary to discharge the duties of the
position involved. And in all cases the person having the power of
employment or appointment, unless the statute provides for a definite
term, shall have the power of removal only for incompetency and
conduct inconsistent with the position held by the employé or ap-
pointee; and in case of such removal or such refusal to allow the
preference provided for in this act of and for any such honorably
discharged Union soldier, or sailor, or marine, for partisan, political,
personal or other cause except incompetency and conduct inconsistent
with the position so held, such soldier, sailor or marine so wrong-
fully removed or refused such preference, shall have a right of ac-
tion in any court of competent jurisdiction for damages as for an
182
(Part 1
ADMINISTRATIVE POWER AND ACTION.
act wrongfully done, in addition to the existing right of mandamus;
the burden of proving such incompetency and inconsistent conduct
as a question of fact, shall be upon the defendant. But the provi-
sions of this act shall not be construed to apply to the position of pri-
vate secretary or deputy of any official or department, or to any
other person holding a strictly confidential position.”
It is apparent that the legislation culminating in the act of 1894 has
nothing primarily to do with what is called the "civil service sys-
tem." It was intended to create a privileged class, entitled to prefer-
ential employment in subordinate positions in the public service, the
foundation of the preference being meritorious service as soldiers and
sailors in the war for the preservation of the Union. The original
act, which provided for a preference only in the original appointment
or employment, but gave no security of tenure, was supplemented in
this respect by the amendment of 1994. The legislation as it now
stands not only gives a preference in public appointments and em-
ployments to Union soldiers and sailors, but makes the appointees ir-
removable, except upon the particular grounds specified. The re-
moval clause was intended to prevent interference with their tenure
for political or partisan or personal reasons.
But the statute recog-
nized the principle that incompetent persons, or those whose con-
duct was inconsistent with the discharge of their duties, should not
be retained in the public service, however meritorious their prior
service may have been. The statute operates as a limitation upon
the power of removal, which must be observed by the officers or
body having the appointing power, and it enacts special remedies for
its violation.
In the present case the removal was made for the cause specified
in the statute, and nothing appears upon the record tending to show
that the power was not exercised in good faith, and in the public
interest. The claim that the relator was entitled to prior notice and
hearing is not supported by any language in the act. If he was so
entitled, it results from some general rule of law implied from the
fact that the power of removal was not unrestricted, but could only
be exercised for the causes specified. It is important to notice the
scope of such an implication, if it exists under the statute in question.
The act applies to employés of every grade in the public service or
on the public works of the state, and the cities, towns, and villages
thereof. The preference is given, not only in clerical or other sub-
ordinate positions, but to every person seeking public employment as
a laborer on the canals, or on the streets of a city, or in any capacity,
however humble. If employment once secured can only be terminated
after a notice and hearing, and something akin to a formal adjudica-
tion upon evidence, the system would become almost intolerable.
Many things difficult to define in words, which show incompetency
in an employé, or disregard of his duty, and which would justify dis-
missal in the mind of a reasonable employer, would often elude a
C11. 4)
183
NOTICE,
formal investigation. There are many statutes on the statute book
relating to the employment and removal of police officers, clerks, and
employés in municipalities, which expressly or by implication require
that the power of removal shall only be for cause, after notice and
hearing of the person whose removal is contemplated. The practice
of legislation in this state has been to insert a provision for notice
and hearing when this has been intended. City of New York, Con-
solidation Act (Laws 1873, c. 335) $ 25; Id. (Laws 1882, c. 410) $$
250, 272, 314; City of Brooklyn, Laws 1888, c. 583, tit. 22, § 29;
City of Buffalo, Laws 1870, c. 519, tit. 13, $ 3.
The acts cognate to the act of 1894, viz. chapter 119 of the Laws
of 1888 and chapter 577 of the Laws of 1892, restricting the power of
removal of Union soldiers or sailors holding official employment in
cities and counties, contain a provision that removals shall not be
made "except for cause shown after a hearing had." In view of the
course of legislation, and the scope of the act of 1894, we are of opin-
ion that the Legislature intentionally omitted to insert a similar pro-
vision in the statute in question.
We concur in the conclusion of the General Term that the Legis-
lature, having prescribed the grounds of removal in the act of 1894,
left it to the removing power to determine whether the facts existed
which authorized a removal, subject to responsibility for any willful
or perverse action, and that no notice is required to be given to the
person whose removal is contemplated, before the power can be ex-
ercised.
The order should be affirmed. All concur. Order affirmed.
46
SECTION 23.-SUFFICIENCY OF NOTICE
STATE V. LAMOS.
(Supreme Court of Maine, 1846. 26 Me. 258.)'
TENNEY, J. The defendant is charged in the indictment with the
offense of presuming to be and of being a common innholder, be-
tween the 1st day of June and the time of finding the bill at the term
of the court holden in October, 1843, without being licensed therefor
according to law, and without being duly authorized therefor. It
was admitted by the defendant that he carried on the business of a
common innholder as alleged in the indictment, and by the prosecuting
officer that he was duly licensed as such for the period during which
46 See In re Guden, 171 N. Y. 529, 64 N. E. 451 (1902). See, also, Shurtleff
v. United States, 189 U. S. 311, 23 Sup. Ct. 535, 47 L. Ed. 828 (1903).
184
(Part 1
ADMINISTRATIVE POWER AND ACTION.
the offense was alleged to have been committed, with the restriction
not to sell spirituous liquors. But it was insisted by the latter that
the defendant's license was legally revoked on August 5, 1843.
The defendant not being charged with any other offense than that
of being a common innholder without license, the correctness of the
instructions to the jury, that the evidence authorized a conviction,
must depend upon the legal revocation of that license. The town
officers, who are authorized to grant a license, are empowered also
to revoke it, whenever any instance of a breach of the bond required
by Rev. St. c. 36, § 2, shall have come to their knowledge, and after
complaint, notice to the party complained of, and a hearing thereon.
Chapter 36, § 15.
The power given by the section referred to, to the board, is im-
portant, and its exercise may materially affect the interests of those
against whom complaints may be made. Their jurisdiction, like
that of all inferior magistrates, must appear affirmatively, and cannot
be presumed, or inferred. The authority to give a hearing, and to
revoke a license, is not conferred without a complaint, and a notice to
the party complained of.
It is not necessary that the complaint should be in writing, signed
and sworn to as the law requires in complaints in criminal proceedings
before a magistrate, to authorize him to issue a warrant; neither is
it indispensable that it should be signed by any one; but the language
used in the statute implies that the word "complaint” is to be under-
stood in its legal sense.
A breach of the bond of a person licensed may come to the knowl-
edge of the board. This alone is not sufficient to give a hearing after
notice;. but a complaint is necessary. The Legislature could not have
intended to have made a distinction between simple information of
the breach, and that information given verbally to the board, by way
of complaint. Such would be senseless. But it was evidently their
purpose that after the fact of a breach should become known to
them, before they could give the notice to the person accused of hav-
ing committed it, and proceed to a hearing, the complaint should be
in writing and contain an allegation of the charges, with specifica-
tions, and the time when the breach took place. Of all these the
party complained of was entitled to reasonable notice, that he might
know particularly what he was called upon to answer, and have op-
portunity to produce proof that the charges were unfounded. With-
out this, there would be a looseness which would be perfectly anoma-
lous in all proceedings of the same general character. There would
be an uncertainty whether the evidence adduced at the hearing had re-
lation to the charges of which he had notice, or others, which were
distinct therefrom. If the license should be revoked, it could not ap-
pear whether it was upon satisfactory proof of the charges alleged,
when no record or document existed to show what they were.
The order revoking the defendant's license is in writing, and it is
Ch. 4)
185
NOTICE.
therein stated that the undersigned, being a major part of the li-
censing board, after notifying him of their intention so to do, gave
him a hearing on the charges preferred against him, and being satis-
fied, beyond a reasonable doubt, that he has failed to keep the Wad-
leigh House, according to the restrictions and conditions of his bond
and license, did revoke said license, rendering it of no effect, inform-
ing him at the same time of the fact. No written complaint or copy
thereof was introduced at the trial as the basis of the proceedings of
the board, nor was there evidence that any was before them at the
hearing. The order of revocation was introduced without objection,
but if it contained no statement showing a jurisdiction in the board,
it certainly was insufficient for that purpose; and it contains nothing
which indicates that they proceeded under a written complaint. It
does not state what charges were preferred against the defendant;
and they could have jurisdiction only on complaint of a charge that
the condition in the bond, which the law authorized them to insert, had
been broken. Crosby v. Snow et al., 16 Me. 121.
The board found the defendant guilty of not keeping the Wad-
leigh House according to the conditions and restrictions of his bond
and license, and for that cause his license was revoked. Whether
this was the charge preferred against him or not, or whether the
conditions and restrictions in the bond and license, which they found
he failed to observe were those which could be legally required, even
if written complaint was not necessary, no proof was adduced to
show.
Exceptions sustained. 47
PEOPLE ex rel. SHUSTER v. HUMPHREY et al.
(Court of Appeals of New York, 1898. 156 N. Y. 231, 50 N. E. 860.)
Appeal from Supreme Court, Appellate Division, Second Depart-
ment.
Application by the people, on the relation of Adam. Shuster, for a
writ of certiorari against William A. Huniphrey and others, Com-
missioners of Police of the City of Poughkeepsie. From an order
of the Appellate Division, made by a divided court (22 App. Div.
632, 48 N. Y. Supp. 1112), affirming a dismissal of relator from the
police force of the city of Poughkeepsie, he appeals. Reversed.
VANN, J. On the 15th of April, 1895, the relator was appointed
a patrolman of the city of Poughkeepsie, after passing the civil serv-
ice examination as provided by law. He was a veteran of the Civil
War, and had never served in the Confederate army or navy. After
47 See, also, State v. Kellogg, 14 Mont. 426, 36 Pac. 957 (1894); Lillien-
feld's Case, 92 Va. 818, 23 S. E. 882 (1896); State ex rel. Sullivan v. Tomali.
80 Wis. 198, 49 N. W. 753 (1891); Pehrson v. Ephraim City, 14 Utah, 147, 40
Pac. 657 (1896); Czarra v. Board of Medical Supervisors, 24 App. D. C. 231
(1904).
186
(Part 1
ADMINISTRATIVE POWER AND ACTION.
serving two years in the Union army and receiving an honorable
discharge, he enlisted in the navy, and served, until the close of the
war, when he was honorably discharged from that branch of the
service also. On the 5th of May, 1897, he was charged by the mayor
of the city "with having made an illegal arrest, in that, without a war-
rant and without probable cause, he, on or about April 23d, 1897,
illegally arrested and detained and brought to the station house one
Lewis Richardson, and declined to make a charge against him, where-
upon said Richardson was discharged by the sergeant in charge."
On the 7th of May following, he was tried upon this charge, and evi-
dence was given tending to show that he made an arrest, without a
warrant, for a misdemeanor not committed in his presence, upon
the complaint of a man who claimed that the person arrested had
assaulted him, and that he was drunk and disorderly. At the in-
stant that this complaint was made, the alleged wrongdoer was run-
ning away, and the relator placed him under arrest, and took him to
police headquarters, with the understanding that the complainant was
to follow immediately, and make a formal complaint. Upon arriv-
ing at the police station, the relator declined to make any charge him-
self against the prisoner, who, as the complainant did not appear,
was discharged, after a detention not exceeding five minutes in dura-
tion.
As the relator was an honorably discharged soldier, and had never
served in the Confederate army or navy, the commissioners had no
power to remove him "except for cause shown after a hearing had.”
Laws 1892, c. 577. Tlie charter of the city of Poughkeepsie, which is
a public act, provides that the board of police commissioners of that
city have power "to punish any member of the police force on convic-
tion of any legal offense, or neglect of duty, or violation of rules, or
absence without leave, or any conduct injurious to the public peace or
welfare, or immoral conduct, or conduct unbecoming an officer, or
other breach of discipline, by reprimand, forfeiting or withholding
pay for a special time, or dismissal from the force, but no more than
thirty days' pay shall be forfeited for any offense." Laws 1896, c.
425, $$ 141, 193.
The relator was entitled to a trial upon charges preferred, and
the commissioners had no right to remove him until after they had
duly convicted him on one or more of such charges. This is neces-
sarily implied from the words “hearing,” “cause shown," "conviction,
etc., as used in said statutes. After a lawful conviction upon a def-
inite charge made under the statute, they had the right to remove him
for that “cause shown," but they had no right to remove him for a
cause not appearing in the charge preferred, and not embraced in the
issue that was tried. They could not convict him of one thing, and re-
move him for another. If they convicted him of making an illegal ar-
rest, they could not reinove him on that ground, and on one or more
other grounds not embraced in the charge nor covered by the evi-
Ch. 4)
187
NOTICE.
dence; yet this is what the commissioners, according to their return,
actually did. Their minutes, which are part of the return, show that,
at the close of the evidence, a motion was made, seconded, and unan-
imously carried, "that Officer Shuster be dismissed from the force for
incompetency and trying to deceive the board.” According to this
statement of their official action, which is all that appears on the sub-
ject in their original minutes, the commissioners do not appear to
have convicted the relator upon the charge preferred, or to have
dismissed him on that ground, but upon two independent grounds, as
to neither of which was there a trial or hearing. In another part of
their return, however, the commissioners state that, “after the testi-
mony had been taken, the board unanimously found the relator guilty
of the charges, and dismissed him from the force because of such
finding, and for incompetency and endeavoring to deceive the board.”
This was not an entry upon their minutes or a record made at the time
of their official action, but a statement framed in response to the com-
mand of the writ of certiorari.
Assuming that the charge of making an illegal arrest was sufficient
to justify a conviction, and assuming also that the board actually
convicted the relator of that offense, still no charge of incompetency
or endeavoring to deceive the board was made against him, and he
was neither tried nor convicted upon either of those grounds. Yet
the learned commissioners theniselves say that they removed him for
incompetency and an attempt to deceive them, which were not
charged, as well as for an illegal arrest, which was charged. The
punishment which they inflicted was the most severe that the law au-
thorizes, and we are compelled to assume that, in fixing the penalty to
be inflicted, the incompetency and deceit had an influence upon their
minds. If it did not, why did they say so in their return, and why
did they formally enter upon their minutes the cliarges not preferred
and never tried, as the only grounds upon which they acted in dis-
missing the relator from the force?
We can hardly conceive that the coinmissioners, as reasonable men,
would dismiss a patrolman who was in good standing, so far as the
record discloses, simply because he made an honest mistake in ar-
resting a man without a warrant when he had no right to do so. The
arrest was not accompanied by actual violence, nor by any aggravating
or annoying conduct, and the prisoner was deprived of his liberty for
only a short time. Even if a dismissal, based solely upon a convic-
tion for making the arrest, would be a reasonable punishment, under
the circumstances, the record does not permit the inference that the
removal was founded upon that charge alone, for the commissioners
say that they dismissed him for other reasons also. The return com-
pels us to conclude that, in fixing the punishment to be inflicted, they
were influenced to some extent, at least, by the "incompetency' and
the effort at deceit, in relation to which there was neither charge pre-
ferred nor trial had. As we have recently said: "The relator was
188
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ADMINISTRATIVE POWER AND ACTION.
not subject to removal except for some legal cause, to be ascertained
and adjudged as matter of fact upon a hearing.” People v. Police
Commissioners, 155 N. Y. 40, 44, 49 N. E. 257. Yet he has been
adjudged guilty of one offense, and removed for three offenses, of
two of which it does not appear that he had ever heard. We think
that the commissioners exceeded their power, and that the order ap-
pealed from should be reversed, with costs.
PARKER, C. J., and O'BRIỀN, BARTLETT, and MARTIN, JJ., concur
with VANN, J., for reversal. GRAY, J., concurs with HAIGHT, J., for
affirmance.
Order reversed.
STATE ex rel. MEADER et al. v. SULLIVAN et al.
(Supreme Court of Ohio, 1898. 58 Ohio St. 504, 51 N. E. 48,
65 Am. St. Rep. 781.)
Error to circuit court, Hamilton county.
Petition for writ of quo warranto by the state, on the relation of
Meader and others, against John J. Sullivan and others. A demurrer
to the answer was overruled, and the petition dismissed. Relators
bring error. Affirmed.
The action below was in quo warranto, brought by the prosecuting
attorney of the county of Hamilton against the defendant in error
Sullivan and John Zunistien, Louis Werner, and George W. Roe.
Its purpose was to oust respondents from the office of board of su-
pervisors of the city of Cincinnati, and to induct the relators. The
gravamen of the petition is that the respondents had been removed
from office by the mayor of the city by virtue of section 2690m, Rev.
St. 1897, after a hearing upon charges preferred, and yet respondents
continued to intrude therein.48
SPEAR, C. J. (after stating the facts). Two questions are presented.
One relates to the sufficiency of the charges; the other to the action
of the mayor upon them. The holding of the circuit court is rested
upon the former consideration.
Section 2690m, Rev. St. 1897, gives authority to the mayor to ap-
point the board of supervisors, and also to remove. The latter authori-
ty is in these words: "For neglect of duty or misconduct in office,
the mayor of such city may remove any member of said board.” This
language, taken by itself, may imply an arbitrary power of removal.
But that the power is not wholly arbitrary is well settled in this state
by the cases of State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228, and
State v. Bryson, 44 Ohio St. 457, 8 N. E. 470. Nor can its exercise
be lawfully attempted until substantial charges involving neglect of du-
ty or official misconduct, have been preferred. It is held in the former
case, as applicable to a removal by the Governor, that the charges must
48 The rest of the statement of facts is omitted.
Ch. 4)
189
NOTICE.
embody facts which, in judgment of law, constitute official misconduct,
and no reason is perceived why the same strict test should not apply
in the case of removal by a mayor. While it is true that the holding of
office is not compulsory, and the citizen is at liberty to accept or decline,
as seems to him best, yet considerations of patriotism and public policy
incline the disinterested citizen to accept, and it is manifestly for the
interest of the state that men of character should be found willing to
fill, public positions. Such citizens will be less likely to do so if they
are to be subjected to arbitrary removal, or their reputations put in
jeopardy by removal based upon insufficient charges. The public in-
terests do not require action which shall be unjust to a worthy officer,
or which will unfairly smirch a good character; and yet the public
interests: do require prompt action in case of established inefficiency
or corruption. And so our statutes have provided remedies as to re-
movals which, while they do not lodge power in the removing authori-
ty which is absolutely arbitrary, do give power which partakes of that
character.
In a case under the statute in question the mayor is the sole judge
of the weight and sufficiency of the evidence given at the hearing. If
he hears a complaint of neglect of duty or misconduct in office, upon
adequate charges, and upon evidence tending to establish them, by him
adjudged sufficient, removes the officer, his action is practically final,
since no appeal lies, nor can error be prosecuted. Hence the necessity,
in justice and common fairness, of his being authorized to proceed
only when charges have been made which embody facts that, in judg-
ment of law, constitute neglect of duty or misconduct in office. As
said by Mechem in his work on Public Officers (section 452): "The
power of removal so conferred must be confined within the limits pre-
scribed for it, and must be pursued with strictness. Hence it can be
exercised only for the cause specified and in the manner and upon the
conditions fixed.” See, also, Com. v. Slifer, 25 Pa. 23, 64 Am. Dec.
680. And, with equal propriety may it be added that the finding and
order should be so definite as to show upon the face of them, that the
power has been exercised according to law. This for the reason,
among others, that the power exercised by the mayor is not judicial
power, and the presumptions which attach to the record of courts are
not to be applied in the same liberal sense to the record of the mayor.
In McGreger v. Supervisors, 37 Mich. 388, it is held by Cooley, C. J.,
that "the removal from public office is a matter of serious conse-
quence, and it is plain that all the facts which would justify it ought
properly to be of record.”
The charges here are that Sullivan knew, or should have known,
that the tangible property, real and personal of the street railway
company, subject to taxation, was $10,000,000. Yet he willfully con-
sented to approve the valuation of personal property at $835,230, and
realty at $350,000, when he knew that the value of the said taxable
property was not less than $10,000,000; with bad intent, etc. A simi-
190
(Part 1
ADMINISTRATIVE POWER AND ACTION.
scure.
lar allegation is made as to the property of the gas company. But the
board, acting as a board of equalization, had, under the statutes, no
duty to perform respecting real estate, its power of equalization being
confined wholly to personal property; and why the confusing element
as to real estate was incorporated in the charges must be left to con-
jecture. It so confuses the allegation that its meaning is fatally ob-
There is no statement that Sullivan or the board undervalued
the personal property, for there is no language equivalent to an aver-
ment that the personalty of the railway company was in fact of higher
value than $835,230. The valuation in gross appears by the charges
to have been much too low. But it may be, for anything that these
charges show to the contrary, that the undervaluation was wholly on
the real estate. So that, as conclusion, every word in the charges as
made may have been true as therein alleged, and yet no neglect of duty
would be shown.
The finding of the mayor is simply that "Sullivan has been guilty
of neglect of duty.” This finding, being general, cannot be extended
by implication to involve a conclusion more comprehensive or specific
than the language of the charges; and this, as we have found, means
only that as to the whole property there was undervaluation. In other
words, the legal meaning of the finding and order is that, in the judg-
ment of the mayor, the defendant was guilty of neglect of duty be-
cause he had permitted undervaluation of the property in gross, and
cannot be held equivalent to a finding that he had been so guilty with
respect to that part only of the property of which the board had juris-
diction. It seems to lis manifest that, considering the arbitrary char-
acter of the power brought into exercise in this case, the charges were
too indefinite to justify a trial, and that, unaided by a specific finding
showing in what the neglect of duty consisted, the entire record is not
sufficient to support an order of removal.49
*
*
*
JOYCE v. CITY OF CHICAGO
(Supreme Court of Illinois, 1905. 216 Ill. 466, 75 N. E. 184.)
HAND, J.60
It is also urged that the charge filed with
the commission by the general superintendent of police is not suffi-
ciently specific. This proceeding is not a common-law or criminal pro-
ceeding, but an investigation. While the plaintiff in error had the
right to have the charge preferred against him reduced to writing, and
in such form that he could clearly understand the ground assigned for
his removal, it was not necessary that the charge should be formu-
lated in technical language similar to that of a declaration or indict-
ment.
49 The remainder of the opinion is here omitted. See post, p. 214.
80 Only a portion of the opinion of Hand, J., is printed.
Ch.4)
191
NOTICE.
In State v. Common Council of the City of Superior, 90 Wis. 612,
64 N. W. 304, charges were filed with the common council against the
mayor of the city for extorting sums of money from policemen and
firemen for political purposes. After a hearing upon the charges, the
common council removed the mayor from office. Under the Wiscon-
sin statute the mayor could not be so removed "without cause, nor un-
less charges are preferred against him and an opportunity given him
to be heard in his own defense.” The court, on page 622, 90 Wis., and
pages 306, 307, 64 N. W., said: “This was not a common-law trial,
but an investigation. While the mayor had a right to insist that he
have a fair hearing, and that the substance of the rules governing tri-
als at law should be preserved, he cannot require that the same preci-
sion and formality be observed which are required in criminal trials at
law. These principles govern the charges made, as well as the pro-
cedure. The charge does not need to be drawn with the accuracy of
an indictment. It is sufficient if the accused be furnished with the
substance of the charge against him.” Upon the trial the plaintiff in
error was represented by counsel, and no objections, as appears from
the record filed as a return, were made to the written charge for in-
definiteness or otherwise, and it is too late now for him to raise the
objection that the complaint was not sufficiently specific.
In State v. Kirkwood, 15 Wash. 298, 46 Pac. 331, the relator was
removed from the office of police commissioner of the city of Seattle
by the mayor upon charges, and Kirkwood was appointed in his place.
The relator brought suit, in the form of an information in the nature
of a quo warranto, to oust Kirkwood. The court held that in a quo
warranto proceeding it could examine the sufficiency of the charges,
and said (page 300, 15 Wash., and page 332, 46 Pac.): "The second
contention of appellant, however, viz., that the charges were sufficient
to support the removal of relator, we think must be sustained. These
charges may have been somewhat indefinite, but no motion was made
to make them more definite or certain. No objection was made to
them in any way. The appellant went to trial upon the complaint as
it was, and the issues were found against him, and we think it is too
late for him now to raise the objection that the complaint was indefinite
and not specific.
The complaint
is somewhat
discursive and indefinite, but we think sufficient can be gathered froin
the complaint to place the relator upon trial for acts which were in-
consistent with the duties of a public officer."
**
*
*
*
192
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ADMINISTRATIVE POWER AND ACTION.
CHAPTER V
HEARING AND EVIDENCE
SECTION 24.-IN CONNECTION WITH LICENSES
PEOPLE ex rel. PRESMEYER v. BOARD OF COM’RS OF PO-
LICE AND EXCISE OF CITY OF BROOKLYN.
(Court of Appeals of New York, 1874.
59 N. Y. 92.)
Appeal from order of the General Term of the Supreme Court, in
the Second Judicial Department, affirming an order of Special Term,
denying a motion on behalf of the relator that a writ of prohibition
issue, commanding respondents to desist from proceedings to cancel
relator's license for the sale of intoxicating liquors.
The relator had obtained a license from the said board. A com-
plaint was inade to the board against him, under section 8, c. 549,
Laws 1873, for selling beer on Sunday, by a sergeant of the police, of
which complaint the following is a copy:
“Brooklyn, Feb. 9, 1874.
"John S. Folk, Superintendent of Police:
"I hereby report George H. Presmeyer, keeper of liquor saloon
corner of Fifth avenue and Twenty-Sixth street, for violation of ex-
cise law, at 8:15 p. m., on the 8th instant. Six men were in the store
at the time; two classes of beer on the counter.
"Smith Hall, Sergeant in Command."
Thereupon the board summoned relator to show cause before them
why his license should not be revoked as prescribed by said section.
The relator appeared and protested against further proceedings, on
the ground that the board had no jurisdiction, and that the com-
plaint preferred alleged no violation of the excise law. These objec-
tions were overruled by the board.
GROVER, J.1 * The counsel further insists that section 8
is unconstitutional, for the reason that it authorizes the conviction of
a party of a crime without a trial by jury. But it authorizes nothing
more than an inquiry into and determination of the question, whether
the party licensed continues to be a suitable and proper person to sell
intoxicating liquors, the statute itself determining that a violator of
the excise laws, while holding a license, is not such a person. That
*
*
1 Only a portion of the opinion of Grover, J., is printed.
Ch. 5)
193
HEARING AND EVIDENCE,
the power to license the sale of intoxicating liquors and to cancel such
license when granted is vested in the Legislature, has been determined
by this court. Metropolitan Board of Excise v. Barrie, 34 N. Y. 657.
The modle and manner in which this shall be done rests in the discretion
of that body.
The order of the General Term, affirming the order of the Special
Term denying a writ of prohibition, must be affirmed with costs.
concur.
Order affirmed.2
GAGE v. CENSORS OF NEW HAMPSHIRE ECLECTIC MEDI-
CAL SOCIETY.
(Supreme Court of New Hampshire, 1884. 63 N. H. 92, 56 Am. Rep. 492.)
Petition for a writ of mandamus. Facts found by a referee.
SMITH, J. The petitioner alleges that having pursued the prescribed
course of study, and having upon due examination been graduated
from the Eclectic Medical College of the city of New York, a legally
chartered school authorized to confer degrees in medicine and surgery,
and having received a diploma from said college, he presented himself
before the defendants, a board of censors of the New Hampshire Ec-
lectic Medical Society, January 4, 1882, and made application to the
board for a license to practice medicine, surgery, and midwifery, in
this state, representing that he had pursued the prescribed course of
study and graduated from said college, and produced his diploma, and
offered himself for such examination as the defendants might desire
to make; that the defendants refused his application, declined to give
him a hearing, and refused to grant him a license. The petitioner
prays for a writ of mandamus commanding the defendants to issue
to him a license to practice medicine, surgery, and midwifery, in this
state, and for further relief.
The defendants answer, admitting that they are the board of cen-
sors of the New Hampshire Eclectic Medical Society. They deny that
the petitioner pursued the prescribed course of study, or that he was
graduated upon due examination from said medical college, or that
the college was legally chartered or authorized to confer degrees in
medicine and surgery, or that the petitioner had a regular and proper
degree from the college as alleged. They admit the other allegations
of the petition, but say that the reason for their refusal to issue a li-
cense to the petitioner was because it clearly appeared to and was un-
derstood by them that the petitioner was disqualified and unfit to prac-
2 Accord : Cherry v. Commonwealth, 78 Va. 375 (1884).
See Com. v. Wall, 145 Mass. 216, 13 N. E. 486 (1887), licensee duly noti-
fied may be proceeded against in his absence.
See, however, In re Peck, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888
(1901).
FR. ADM.LAW.-13
194
(Part 1
ADMINISTRATIVE POWER AND ACTION.
tice medicine, surgery, and midwifery, that he was unworthy of
public confidence, and that it was clearly apparent to them that if a li-
cense 'was granted it would be their duty to revoke such license im-
mediately for the reasons stated.
The referee finds that the petitioner graduated from the Eclectic
Medical College of New York City, a medical school authorized by the
laws of New York to confer degrees in medicine and surgery; that
he received a diploma from the college, March 4, 1880, after having
pursued the prescribed course of study and upon due examination;
that he applied to the defendants January 4, 1882, for a license, and
offered his diploma as evidence of his graduation; that the defendants
refused to grant the petitioner a license, or to examine his diploma,
or to examine him as to his qualifications; and that they put their re-
fusal mainly upon the ground that the petitioner is not worthy of pub-
lic confidence.
The statute requires every medical society, organized under the
laws of this state, to elect a board of censors consisting of three mem-
bers. Authority is conferred upon the board to examine and license
persons to practice medicine, surgery, or midwifery. It is made the
duty of the board to issue licenses without examination to all persons
who furnish evidence by diploma from some medical school authorized
to confer degrees in medicine and surgery, when the board is satisfied
that the person presenting such diploma has obtained it after pursuing
some prescribed course of study and upon due examination. The
board has power, upon due notice and hearing, to revoke any license
granted by it, when improperly obtained, or when the holder has, by
conviction for crime or from any other cause, ceased to be worthy of
public confidence. Gen. Laws, c. 132, § 2. The defendants allege as
a reason for refusing a license to the petitioner that he is not "worthy
of public confidence," and claim the right under the statute to refuse
to issue a license if satisfied that either of the causes exists which au-
thorize them to revoke it.
The object of the statute is protection to the public from incompe-
tent and unworthy physicians and surgeons. Two classes of persons
are mentioned in the statute to whom a license to practice medicine,
etc., may be issued those who have and those who have not received
a diploma from a medical school authorized to confer degrees. To
the latter class the license is issued upon examination; to the former
class, without examination. Authority to examine and license, as ex-
pressed in the statute, means authority to license, when, upon ex-
amination of the candidate as to his medical education, skill, and ex-
perience, the censors are satisfied that he possesses the necessary quali-
fications for the important and responsible occupation of a medical
practitioner. When the candidate has received a diploma from a med-
ical school, he has only to satisfy the board that it was conferred by
a school authorized to confer degrees in medicine and surgery, and
that it was conferred after he had pursued the prescribed course of
Ch.5)
195
HEARING AND EVIDENCE.
study, and upon due examination by the authorities of the school. The
statute makes such a diploma conclusive evidence to the censors that
he possesses the requisite medical qualifications to practice medicine,
surgery, and midwifery. Hence the provision that he shall receive a
license without examination; that is, without examination as to his
medical qualifications.
The statute also contemplates that the exigency may arise when the
holder of a medical license may become, or may prove to have been,
unfit or unqualified to practice medicine, and for that reason that his
license should be revoked. The license is in effect a certificate that the
holder possesses the necessary medical and other qualifications. The
license may be revoked when it was improperly obtained, or when the
holder has, by conviction for crime or from any other cause, ceased
to be worthy of public confidence. Character, no less than medical
education, skill, and experience, is, within the meaning of the statute,
a qualification for a competent physician or surgeon. One who does
not possess the requisite qualifications cannot be worthy of public con-
fidence. Barrows v. Mass. Med. Soc., 12 Cush. (Mass.) 402, 409;
Rex v. Dr. Askew et al., Censors, etc., 4 Burr. 2186, 2189; Com. v.
Philanthropic Soc., 5 Binn. (Pa.) 486. But a license once granted
cannot be revoked except upon due notice and a hearing. The liolder
is given an opportunity to meet charges and evidence tending to show
his unfitness. The same considerations that forbid the revocation of
a license, except upon notice and a hearing, also require that the ap-
plicant for a license who possesses the requisite medical qualifications
shall not be denied a license without a hearing on the question whether
he is in other respects worthy of public confidence.
It is said that mandamus does not lie to compel admission to a cor-
porate franchise, or to an office, when it is plainly apparent that the
applicant, if admitted, will be immediately expelled; that in
case the writ may be properly withheld; and that the writ is not in-
tended to enable a party, by taking advantage of forms or the want
of form, to defeat justice. High, Ex. Rem. $$ 287, 301; Ex parte
Paine, 1 Hill (N. Y.) 665; Rex v. Griffiths, 5 B. & Ald. 731; Rex
V. Axbridge, Cowp. 523; Rex v. Mayor, etc., of London, 2 T. R. 177,
182; Rex v. Bishop of Chester, 1 T. R. 396, 403; Van Rensselaer v.
Sheriff of Albany, 1 Cow. (N. Y.) 501; State v. Society, 15 La. Ann.
173. What the common law of this state is on that subject it is not
now necessary to inquire. This case depends upon the statute, which
does not authorize the exclusion of the plaintiff from the rights of a
licensed physician without trial.
An examination for the purpose of ascertaining his medical and
surgical knowledge and skill is rendered, unnecessary by his diploma
from a medical school authorized to confer degrees in medicine and
surgery, the board of censors being satisfied that he obtained his
diploma after pursuing the prescribed course of study and upon due
examination. He is exempted by the statute from the examination
196
(Part 1
ADMINISTRATIVE POWER AND ACTION.
which would be required if he had no diploma. But the legal mean-
ing of the statute does not require the issue of a license which should
be immediately revoked for want of other qualifications than medical
and surgical knowledge and skill. A license may be refused, if, on
other grounds, upon due notice and hearing, he is fairly proved by
the defendants to be unworthy of public confidence. If he desires a
hearing before the defendants on that question, further proceedings
in this case will await the result of the speedy trial to which he is en-
titled before the board.
Trial granted. All concurred.
3
UNITED STATES ex rel. ROOP v. DOUGLASS.
(Supreme Court of District of Columbia, 1890. 19 D. C. 99.)
Hearing in the first instance in General Term, on a return to a pe-
tition for mandamus to the Commissioners of the District of Columbia
commanding them to issue or cause to be issued to the relators a re-
tail liquor license. Writ refused.
JAMES, J.4 * It was next objected that, notwithstanding a
decision by one having discretionary power is conclusive when it is
the consequence of a proper examination, it is not so when the ex-
amination appears to have been improperly conducted, and that, as a
matter of fact, the examination in this case was not conducted proper-
ly or lawfully.
It appears by the return that the respondents received, as aids in
forming their judgment, the unsworn reports of the police officers,
and by the uncontradicted averments of the petition that they denied
the petitioners a rehearing as to the truth of these reports. The meth-
ods of the respondents are impeached on the ground, apparently, that
they were arbitrary in excluding a formal contest. To what methods,
then, were the Commissioners limited? The interests and wants of
the public, and not any pre-existing right of the petitioners, were the
subjects which they were charged to ascertain, when application was
made for license. Therefore, their mode of inquiry, and of satisfy-
ng their own judgments, was not subject to the rules which apply to
the ascertainment of disputed private rights.
As no mode of inquiry is prescribed by the statute, the Commission-
ers are, by implication, authorized to adopt any that may reasonably
be used in attaining the end in view. They were the head of a police
3 See Queen v. Justices of Walsall, 3 Common-Law R. 100 (1854); Ex
parte Kavanagh, 10 Times L. Rep. 533 (1894); In re Schomaker, 15 Misc.
Rep. 648, 38 N. Y. Supp. 167 (1895), hearing a matter of custom and courtesy.
Right of remonstrants to be heard. Steinkraus v. Hurlbert, 20 Neb. 519,
30 N. W. 940 (1886).
4 Only a portion of the opinion is printed.
Ch. 5)
197
HEARING AND EVIDENCE.
force, which it was their duty to employ in watching over good order
and preventing crime. The facts which might determine their ap-
proval or disapproval of a license, such as the assembling of disorderly
persons, were the very matters which it was the duty of their sub-
ordinate officers to observe. It was not only reasonable, then, that
they should derive information from that source, in aid of their ex-
ecutive discretion, but it may even be said to be an intendment of law,
in every system of executive discretion, that the executive head maj
act upon mere information derived from his accountable subordinates.
This difference between an inquiry into disputed private rights and
an inquiry intended simply to ascertain the interests of the public was
considered and well stated in Raudenbusch's Appeal, 120 Pa. 342, 14
Atl. 150. Mr. Justice Paxson, speaking for the court, there said:
“The law of the land has decided that licenses shall be granted to some
extent, and has imposed the duty upon the court [of sessions] of as-
certaining the instances in which the license shall be granted. In order
to perform this duty properly, the act of assembly has provided means
by which the conscience of the court may be informed as to the facts.
It may hear petitions, or remonstrances, or witnesses, and we have
no doubt the court may in some instances act upon its own knowledge.
The mere appearance of an applicant for license, when he comes to
the bar of the court, may be sufficient to satisfy the judge that he is
not a fit person to keep a public house. The judge is not bound to
grant a license to a man whom he knows to be a drunkard or thief,
or has actual knowledge that his house is not necessary for the public
accommodation. The object of evidence in such cases is to inform
the conscience of the court, so that it can act intelligently and justly
in the performance of a public duty. Whilst the act of deciding in
such cases is quasi judicial, the difference between the granting and
withholding of a license and the decision of a question between par-
ties to a private litigation is manifest. Neither the petitioner nor any
other person in this state has any property in the right to sell liquor.'
The same kind of objection as in this case was made in King v.
Bishop of London, 15 East, 117, where the respondent had refused to
license a lecturer. Lord Ellenborough there said: "It has been urged,
however (and much stress was laid upon it at the argument), that it
was the duty of the bishop to have instituted his inquiry upon the sub-
ject, in the manner and by the means usually adopted in courts of
law; that is, by the formal production of the charges made against
the applicant in a judicial course, and by a public and solemn hearing
of the several parties, their proofs and witnesses. But, in the first
place, what power has the bishop to compel the attendance of parties
and witnesses ? What power has he to administer an oath, or what
word is there in the act of Parliament that prescribes the mode by
which he shall attain a conscientious satisfaction on the subject? It
only requires him first to approve, that is before he licenses; and in
so doing it virtually requires him to exercise his conscience, duly in-
198
(Part 1
ADMINISTRATIVE POWER AND ACTION.
formed, upon the subject, to do which he must duly, impartially, and
effectually inquire, examine, deliberate, and decide."
The principle recognized in both of the cases referred to is that,
inasmuch as the object of evidence in such examinations is merely to
inform the conscience and judgment of the officer, such evidence may
be taken in any way that is reasonably sufficient for that purpose. The
officer is not governed by the rules of litigious evidence, and his de-
cisions are not to be deemed arbitrary merely because they are founded
upon information which a court would hold not to be evidence at all.
We not only adhere, then, to the opinion expressed in Manion's
Case, 6 Mackey, 409, that the Commissioners have full discretion in
the matter of retail liquor licenses, but we hold that they may conduct
their inquiries by what may be called executive methods.
* 5
LILLIENFELD V. COMMONWEALTH.
*
(Supreme Court of Appeals of Virginia, 1896. 92 Va. 818, 23 S. E. 882.)
Appeal from corporation court of Charlottesville.
Proceedings by the Commonwealth against T. J. Lillienfeld to re-
voke defendant's liquor license. From a judgment revoking the li-
cense, defendant appeals. Affirmed.
RIELY, J.8 * The proceeding to revoke the license of the
plaintiff in error to sell liquior was taken by the court of its own mo-
tion, under section 560 of the Code, which is as follows: “Upon
the motion of the attorney for the conmonwealth for the county or
city, or of any other person, after ten days' notice to any person or firm
licensed to sell liquors or any other thing, the granting of whose li-
cense was based upon the certificate of a court, the court which granted
the certificate may revoke the license;" and the order of the court
initiating the proceeding was in the following words: "It is ordered
by the court that a notice be issued against F. J. Lillienfeld to show
cause, if any he can, why the bar-room and retail-liquor license under
which he is doing business should not be revoked for selling and caus-
ing to be sold to minors whisky, wine, and beer." Upon the hearing
of the matter, Lillienfeld, by his counsel, moved the court to quash
the notice upon the ground that it was not sufficiently specific, which
motion the court overruled; and this constitutes the first assignment
of error.
The order of the court, which was duly served upon the defendant,
set forth plainly the ground of the proceeding--the sale of liquor to
minors. It apprised him of the charge against his conduct of the
business under his license. The statute does not provide, in terms,
5 Compare Queen V. Licensing Justices, 14 Q. B. D. 584 (1885); Reg. v.
Bartlett, 49 Justice of Peace, 7'12 (1885).
8 Only a portion of the opinion by Riely, J., is printed.
Ch. 5)
199
HEARING AND EVIDENCE.
was no error.
that the ground upon which the revocation of the license is or will
be asked shall be set forth in the notice or othe se. It is sufficient
to state the charge or charges in general terms, if stated with sufficient
certainty to enable the person or firm whose license it is sought to
revoke to understand the ground upon which the revocation will be
asked. This was done in this case. The proceeding is a summary
one; and, as was said by Judge Lewis in Cherry v. Com., 78 Va. 375,
378, “it was manifestly not the intention of the Legislature to re-
quire in such proceedings the application of the strict and technical
rules which apply to indictments and other forms of accusation in
criminal prosecutions." There is no substantial difference between
the notice given in this case and the notice given in the case of Cherry
v. Com., supra, or in the case of Davis v. Com., 75 Va. 944, in both
of which cases the notice was held to be sufficient.
It is also alleged as error that the court admitted as evidence, over
the objection of the defendant, 19 indictments which had been found
against him by its grand jury. for selling liquor to minors and were
then pending in the court for trial; and also in receiving the testi-
mony of Charles Wilkins that he had purchased intoxicating liquors
of the defendant at his bar-room within the preceding 12 months,
but prior to May 1, 1895, when his license took effect. In this there
In a proceeding of this kind, the whole matter is
heard and determined by the court, and it is not confined to the strict
rules of evidence which obtain upon the trial of an issue before a
jury, but the doors of evidence are and should be thrown open, that
the court may be satisfied whether or not it has intrusted the sale of
liquor to an unfit person, and the privilege of the license been abused
or the law violated. The relevancy and materiality of the evidence,
and the weight to be given to it, are matters for the consideration of
the court, when it comes to determine the case. Even in certain
criminal prosecutions involving the life or liberty of the accused,
whenever the intent or guilty knowledge is a material ingredient in the
issue of the case, evidence of other acts of the accused of a similar
nature tending to establish such intent or knowledge is admissible
as evidence, if not too far removed; and what are the limits as to the
time and circumstances is for the court, in its discretion, to determine.
Trogdon's Case, 31 Grat. 863.
Upon a review of the whole evidence, as certified by the court, we
are of opinion that the discretion of the court was properly exer-
cised in revoking the license of the plaintiff in error. When the li-
cense was granted, he, along with the other applicants for liquor li-
cense, was notified and warned by the court that if he sold or allowed
liquor to be unlawfully sold to minors his license would be revoked.
The evidence discloses that liquor was sold in his bar-room, in a num-
ber of instances, and, if he did not himself sell it, he did not exercise
due oversight and vigilance to see that it was not done by his bar
tender. It further appears that, even after the large batch of indict-
200
(Part 1
ADMINISTRATIVE POWER AND ACTION.
11
ments for selling liquor to minors had been found against him, he
still retained as his bar tender the man who is proved to have freely
and without inquiry sold liquor to minors. The protection of minors
against the terrible evils which ensue from contracting in early life
the habit of indulgence in strong drink, and the happiness of parents,
as well as the good of society in general, require that this dangerous
traffic in ardent spirits should be carefully guarded, and not placed or
suffered to remain in the hands of men who will disregard the law,
or allow it to be disregarded by their employés, or knowingly retain
in their service as bar tenders persons who violate the law.
Upon a consideration of the whole case, the court is of opinion
that the corporation court did not err in revoking the license of the
plaintiff in error, and that its judgment should be affirmed.?
DODD et al. v. FRANCISCO et al.
(Supreme Court of New Jersey, 1902. 68 N. J. Law, 490, 53 Atl. 219.)
On certiorari.
· Dixon, J: This certiorari brings before the court the proceedings
of the state board of health respecting an application for permission
to locate a cemetery in the town of Bloomfield, Essex county. The
application was first presented on December 21, 1900, to the council
of the town, and being approved by that body was then presented to
the local board of health, which on March 5, 1901, refused to give its
consent. Thereupon the applicants appealed to the state board of
health, and on June 28, 1901, that board passed a resolution by which
the action of the local authorities was reversed and the desired per-
mission was granted. This resolution was set aside by this court
at the term of February, 1902, because the parties interested had
not been heard before the board itself; the only hearing given to
them having been had before a committee of the board.
Afterwards, on April 22, 1902, the counsel of the respective par-
ties were notified that on May 8, 1902, at 2 o'clock p. m., in the state
house, the state board of health would meet to consider the applica-
tion, and at that time and place counsel representing the applicants
and the opponents appeared and were fully heard by the board, as
were also all individuals who desired to express their views. The
result of the board's deliberation was another resolution, passed May
22, 1902, to the same effect as that of June 28, 1901, which resolu-
tion is now before us for review.
7 See, also, Traer v. State Board of Medical Examiners, 106 Iowa, 559, 76
N. W. 833 (1898). But see People ex rel. Silkens v. McGlyn, 62 Hun, 237,
16 N. Y. Supp. 736 (1891), no proof other than character and standing of com-
plainants:
Ch. 5)
201
HEARING AND EVIDENCE.
*
*
*
The statute under which these proceedings were taken is the sixth
section of a supplement to the cemetery act, approved March 25,
1885. Gen. St. P. 354.
The third, fifth and sixth reasons assigned for annulling the res-
olution present two questions—First, whether the board was bound
to examine persons under oath touching the matters stated and con-
troverted at the hearing before it; and, second, whether the board
had a right to consider a report made to it by its committee while
the first appeal was pending.
In the opinion delivered by Mr. Justice Garretson in the case
above cited it is said: "The board of health was acting judicially
upon the application before it, and all parties were entitled to be
heard by the board in a legally organized meeting of the board."
This expression is referred to by counsel for the prosecutors as in-
dicating that it was the duty of the board to examine witnesses as to
disputed questions of fact. But we do not so understand it. Its
import is merely that the functions of the board were such as re-
quired the exercise of the judgment of the board itself, and hence that
parties interested had a right to present and discuss before the board
the matters on which its judgment should rest. Nor do we find
either in the statute relating to cemeteries or in that establishing
the state board of health (Gen. St. p. 1634), any indication that the
board was to proceed as courts do in suits inter partes. There is
nothing suggestive of a power to summon witnesses, to administer
oaths or to compel the giving of evidence, either oral or written.
Moreover, the matters to be considered by the board respecting the
propriety of locating a new cemetery are of so general and public
a nature that they can be decided more intelligently by observation
and discussion than by testimony. In this respect the board resembles
boards of assessment, whose proceedings involve the exercise of
judicial functions (Peckham v. Newark, 43 N. J. Law, 576), but
whose judgment is to be founded on facts obvious to their senses or
ascertained by inquiry and examination, who, although not authorized
to call witnesses and examine them upon oath, should, as do surveyors
and freeholders in road cases, visit the premises in controversy and
avail themselves of every accessible means of information likely to
aid them in reaching a proper deterinination. State v. Jersey City,
24 N. J. Law, 662, 665.
We therefore conclude that the board was not bound to receive
evidence under oath.
What has been already said indicates also that in our judgment it
was not erroneous for the board to consider the report of its former
committee regarding the matter pending before the board. The
report was a means of information accessible not only to those who
were members of the board when the report was presented, but also
to new members. As a part of the discussion proper in the delibera-
tions of such bodies, the report was at least the statement of persons
202
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ADMINISTRATIVE POWER AND ACTION.
*
* 8
who had made special investigation and presumably formed impar-
tial judgments on the matter under consideration.
Resolution granting the desired permission affirmed.
SECTION 25.--IN CONNECTION WITH REVENUE
TOMLINSON v. BOARD OF EQUALIZATION.
(Supreme Court of Tennessee, 1889. 88 Tenn. 1, 12 S. W. 414, 6 L. R.
A. 207.)
**
LURTON, J."
The complaint made in the petition is that
it (the board of equalization) refused to hear witnesses offered by com-
plainant in support of his complaint as to an excessive assessment as to
valuation. In this, did they "exceed their jurisdiction," or "act illegal-
ly”? To determine this, we must not only consider the language of the
act defining their duties, but consider the general nature and scope of
the powers conferred upon them. They are styled a “board of equali-
zation,” They are charged, primarily, with the duty of "examining"
and "equalizing" assessments. This duty they are expected, most
manifestly, to perform, not upon testimony, but upon a "comparing"
the assessments in one district or neighborhood with another—one
piece of property with the assessment upon another of equal value.
Clearly, this is to be done upon their own knowledge of the compara-
tive valuations, and the end to be reached is an equalization whereby
discriminations in favor of one, or against another, are to be corrected.
In addition to this, they are to correct mistakes made by the assessor,
and eliminate from the list property exempt under the law from as-
sessment.
Finally, they are enpowered to hear and adjust complaints from
any party feeling aggrieved on account of excessive taxation, where
in their judgment justice demands it. How are they to "hear and
adjust" such complaints? Petitioner's contention is that they must
hear witnesses produced by him; that he has a right to examine such
witnesses, and cross-examine such as are produced against him.
other words, that the act contemplates a regular trial, according to the
ordinary course of law, and the decision according to the weight
of the proof. We have seen that, with reference to the primary duty
of the board—that of equalizing assessments—the act contemplates no
8 The rest of the opinion is omitted. See ante, p. 76.
8 Only a portion of the opinion of Lurton, J., is printed.
Ch.5)
203
HEARING AND EVIDENCE.
issue of fact or hearing of evidence, but that the equalization is to
be brought about by a comparison of assessments and the knowledge
they have of the relative values of different pieces of property. Can
the law contemplate any very different method of correcting an ex-
cessive assessment? The knowledge of relative values of coinpara-
tive values—which they have as citizens and freeholders, and which
they obtain from an examination and comparison of the assessment
lists, will, in the vast majority of cases, enable them to act justly
upon the complaint. But cases inay occur where these means are, in
their judgment, unsatisfactory. In such case, the act declares that
the “board shall have the right to summon before them witnesses,
who shall be disinterested freeholders; and the sworn testimony of
three such witnesses concerning same will be sufficient evidence upon
which such board may act.” The “board shall have the right” to
summon before them disinterested freeholders is the language of
the act. Does this power conferred make it their duty to either have
witnesses brought by the party making complaint, or require them
in all cases to sunimon witnesses upon such complaint being made;
or is the hearing of witnesses a matter wholly in their discretion? We
think the statute means no more than it plainly discloses.
To hold that it was the duty to permit the examination of witnesses
offered by a complainant would imply a duty to the state and county
to hear and examine witnesses to sustain the assessment. All this
would imply a trial, and a judgment upon weight of proof. The
question of valuation is altogether a matter of opinion. Before ques-
tions of opinion the greatest diversity may be expected. The ses-
sions of this board terminate in two weeks; and at the end of that
time they are required to return the assessment lists, and their cor-
rections, to the clerk of the county court. In populous counties the
assessments reach into the thousands. That each taxpayer should
have the right to come with his witnesses, and have them heard, and
be heard by counsel, would result in such delay and enibarrassment
as to amount to a great public peril with regard to the assessment
of the public revenues. No legislative body could have seriously con-
templated such a tribunal to determine a mere question of an exces-
sive valuation for purpose of assessment. Occasional instances of
excessive assessments may occur; but they had better be borne than
tliat such a court should be created to settle them. The taxpayer in
the first instance may make his representations to the assessor. If
he overassess him, he may carry the natter to a board of disinterested
freeholders, acting under oath. If they upon their own knowledge,
agree with the assessor, and, upon a "comparison," find no case for
a reduction of or purpose of equalization, the chances are that the as-
sessment is not far wrong. If he cannot induce the board to think
that it is a case where they ought, for their own enlightenment, exer-
cise the power they have to summon witnesses of their own selection,
he must submit.
204
(Part 1
ADMINISTRATIVE POWER AND ACTION.
The board was not "exceeding its jurisdiction," or "acting illegally,"
in refusing to have the witnesses offered by petitioner; and it had a
right to refuse to summon witnesses of its own selection, if it deemed
that justice did not demand evidence from witnesses.
**
* 10
AUFFMORDT V. HEDDEN.
v.
(Supreme Court of United States, 1890. 137 U. S. 310, 11 Sup. Ct. 103,
34 L. Ed. 671.)
In Error to the Circuit Court of the United States for the Southern
District of New York.
Action to recover an alleged excess of duties, paid under protest.
BLATCHFORD, J.11
Section 2930 of the Revised Stat-
utes, under which the principal question in the case arose, was as fol-
lows: "If the importer, owner, agent, or consignee of any mer-
chandise shall be dissatisfied with the appraisement, and shall have
complied with the foregoing requisitions, le may forthwith give
notice to the collector, in writing, of such dissatisfaction, on the
receipt of which the collector shall select one discreet and expe-
rienced merchant to be associated with one of the general apprais-
ers wherever practicable, or two discreet and experienced mer-
chants, citizens of the United States, familiar with the character
and value of the goods in question, to examine and appraise the same,
10 Compare Ekiu v. United States, 142 U. S. 651, 603, 12 Sup. Ct. 336, 35
L. Ed. 1146 (1892).
Under statutory provisions, assessing board may be required to hear wit-
nesses. People ex rel. Broux Gas & Electric Co. v. Heitner, 43 App. Div. 198,
59 N. Y. Supp. 327 (1899); People ex rel. Manhattan Co. v. Barker, 152 N. Y.
417, 46 N. E. 875 (1897).
As to the former practice of accepting the tax-payer's oath as conclusive
upon the amount of his assessment, see People ex rel. Buffalo, etc., Co. v.
Barker, 48 N. Y. 70, 74–77; Inhabitants of Newburyport v. County Commis-
sioners, 12 Metc. (Mass.) 211.
The same practice is commonly followed with regard to the qualifications of
electors, so far as the action of election or registration officers is concerned.
“Practically, the law leaves it to the conscience of the person offering to
vote to decide whether he can or will do so when his right is challenged.
The inspectors cannot do more than to make use of the machinery provided
by the law to test the voter's legal qualifications, and they cannot decide up-
on the truth or falsity of the answers to their questions. The l'aw provides
for the punishment of a person who falsely personates a registered voter;
and the proposed elector, who is challenged for that cause, if he persists in
his attempt to vote, may accomplish his purpose, but at the peril consequent
upon false swearing and of false personation. If, with all the safeguards
with which popular elections are legally and naturally surrounded, frauds
are perpetrated, the tribunals are open, and laws and a system of procedure
exist for the punishment of the offenders, and for the rectification of conse-
quent errors, in behalf of an individual whose legal rights are affected; and
legislative bodies, are judges as to the qualifications, returns, and elections
of their members.” People ex rel. Stapleton v. Bell, 119 N. Y. 175, 23 N. E.
533 (1890); Gillespie v. Palmer, 20 Wis. 544 (1866), pos
11 Only a portion of the opinion of Blatchford, J., is printed.
p. 302.
Ch. 5)
205
HEARING AND EVIDENCE.
*
agreeably to the foregoing provisions, and, if they shall disagree, the
collector shall decide between them; and the appraisement thus de-
termined shall be final, and be deemed to be the true value, and the
duties shall be levied thereon accordingly.” [At the trial, the plain-
tiffs put in evidence a number of regulations of the Treasury Depart-
ment, among them the following: "Act. 474. Merchants' appraise-
ments should not assume the nature of a judicial inquiry where judg-
ment is rendered in accordance with the preponderance of testimony
on either side, but should be conducted as an investigation of experts,
to ascertain whether the local appraiser has reported the true and
proper market value of the merchandise in question."]
They also offered in evidence sundry depositions of witnesses taken
before the reappraisers in this case, in regard to market value, but
they were excluded by the court on the objection of the defendant,
and the plaintiffs excepted. They also offered to show by a witness the
true and actual market value and wholesale price of the goods in ques-
tion, and of goods identical with them, in the principal markets of the
country from which they were exported, at the time of their exporta-
țion, in March, 1886; but, on the objection of the defendant that the
testimony was immaterial, incompetent, and irrelevant, it was ex-
cluded, and the plaintiffs excepted.
They also requested
the court to submit all of the evidence to the jury touching the value
upon which the duty was assessed, and the value declared on en-
try, on the ground that section 2930 of the Revised Statutes was
unconstitutional; that the plaintiffs had the right to have submit-
ted to the jury, under proper instructions, on the evidence, all
questions touching the imposition of duty; and that, by withholding
the evidence from the jury, by virtue of an unconstitutional statute
which declared the conclusions of the reappraisers to be final, the
plaintiffs were deprived of their constitutional right to a trial by jury,
in a case where, by the common law, it obtained, under article 7 of
the amendments of the Constitution. This request was denied, and
the plaintiffs excepted.
It is provided, by section 2902 of the Revised Statutes, that it shall
be the duty of the appraisers of the United States, “and every person
who shall act as such appraiser," “by all reasonable ways and means in
his or their power, to ascertain, estimate, and appraise the true and
actual market value and wholesale price of the merchandise under
appraisal, "at the time of exportation, and in the principal markets of
the country whence the same has been imported into the United
States”; and, by section 2930, it is inade the duty of the general
appraiser and the merchant appraiser to examine and appraise the
goods "agreeably to the foregoing provisions."
The views of the Circuit Court in regard to this case, as stated at
the trial, are set forth in the report of it in 30 Fed. 360, and are con-
tained also in the record. Mr. Robinson, the agent of the plaintiffs,
employed to attend to their custom-house business, and who acted in
206
(Part 1
ADMINISTRATIVE POWER AND ACTION.
the present case, gave his testimony as to what took place in regard
to the reappraisement, so far as he was cognizant of it. The court
commented on his testimony and that of other witnesses, and said:
"I do not gather from the testimony, as given here, that the plaintiffs
or their agent understood that they were in any way excluded from
their goods, which were in the adjoining room. I understand him to
say that when his appraisal was going on he was at perfect liberty to
be in the room where the goods were, and point them out to the ap-
praisers, but not to the witnesses. I understand him that there was
a notice on the door that led into that room that nobody would be
allowed in there when the witnesses were examining the goods.
When this case was up and the merchant appraiser and the general
appraiser were there, if he had wanted to, he could have gone into
the room, and pointed out any of the goods he had a mind to. He
was asked to make his statement, and understood that he had the
right. He didn't question but that the samples they had were the
right ones. He stayed there as long as he wanted to, to do anything
about pointing out his goods. I think the importer was entitled to
that—to be there when the appraisal was made; to point out his
goods; to know they were his goods; to illustrate them, and exhibit
them in any manner he saw fit; and to present to the appraisers any
views he had. I think he had that right; but I am not able to say
from this evidence that there was anything tending to show that
he was denied that right. There is one other point upon which I am
not clear; that is when this board takes testimony (and, whether
they will take it all or not, they are to decide themselves), whether
they are bound to let the importer know that they are taking it; or,
if they do let the importer know they have taken it, whether they
are bound to let him know what it is, so he may answer it. But my
impression is that that is discretionary with the board; that they
inay make inquiry by what they deem to be proper ways and means;
and that the importer must rely on their fairness and judgment as to
what testimony they do take, and the weight they give to it; that the
fact that the importer was not informed who the witnesses were, and
what they testified to, and given an opportunity to cross-examine them,
and an opportunity to meet it, does not constitute a valid objection
against the reappraisement."
The contention of the plaintiffs is that under the instructions of
the treasury department, and the evidence, the question in issue as
to the dutiable value of the merchandise could not be reasonably
heard at all, on the reappraisement, because (1) the importer or his
agent was practically excluded from the reappraisement; (2) was not
afforded opportunity to support his oath on entry, or within proper
limits to confront the opposing witnesses by testimony in his own
behalf; (3) or to sift evidence secretly or openly heard in opposition
to him; (4) or to have the aid of counsel, if he desired; and, particu-
larly, that the rule of "reasonable ways and means” could not exist in a
Ch. 5)
207
HEARING AND EVIDENCE.
tribunal which proceeded to examine an issuable matter under a rule
which excluded lawyers.
We are of opinion that, under the statute, the question of the duti-
able value of the merchandise is not to be tried before the appraisers
as if it were an issue in a suit in a judicial tribunal. Such is not the
intention of the statute, and the practice has been to the contrary from
the earliest history of the government. No government could collect
its revenues or perform its necessary functions, if the system con-
tended for by the plaintiffs were to prevail. The regulations pre-
scribed in the instructions from the Treasury Department are reason-
able and proper. By section 2949 of the Revised Statutes (U. S.
(Comp. St. 1901, p. 1940) the Secretary of the Treasury has power to
establish “rules and regulations not inconsistent with the laws of the
United States, to secure a just, faithful, and impartial appraisement
of all merchandise imported into the United States"; and by section
2652 (page 1821) it is made “the duty of all officers of the customs to
execute and carry into effect all instructions of the Secretary of the
Treasury relative to the execution of the revenue laws; and, in case
any difficulty shall arise as to the true construction or meaning of
any part of the revenue laws, the decision of the Secretary of the
Treasury” is made conclusive and binding. The proceedings for ap-
praisal must necessarily be to some extent of a summary char-
acter.
Although by section 29 of the act of June 10, 1890, C. 407, entitled
“An act to simplify the laws in relation to the collection of the rev-
enues," sections 2902 and 2930 of the Revised Statutes are expressly
repealed, section 10 of that act provides that it shall be the duty of
the appraisers of the United States, "by all reasonable ways and
means,” to appraise the actual market value and wholesale price of im-
ported goods in the principal markets of the country whence the same
have been imported; and section 13 of that act provides that the deci-
sion of the appraiser or that of the general appraiser in cases of reap-
praisement, or that of the board of general appraisers on review, shall
be final and conclusive as to the dutiable value of the merchandise,
against all parties interested therein. There is nothing in the in-
structions of the Secretary of the Treasury, or in any of the regula-
tions prescribed, or in the evidence in this case, which shows that
the appraisers were not free to perform their duties properly, as re-
quired by the statute. The reappraisers appraised the goods in the
appraisers' room in the public store. On the day before the reap-
praisement took place, the agent of the plaintiffs received due notice
of it, and he attended and was called by the reappraisers before them.
The merchant appraiser had then and there samples of the plaintiffs'
goods, and the general appraiser asked the agent for his statement in
the case, and it was made. The samples were on the table before
the merchant appraiser, and the cases of goods were in the adjoining
room. The agent made no objection as to the proceedings, and tes-
208
(Part 1
ADMINISTRATIVE POWER AND ACTION.
tifies that he was allowed to make a full statement concerning the
value of the plaintiffs' goods; and the evidence fails to show that
any request was made on behalf of the plaintiffs which was refused,
except the request to find the value which the plaintiffs desired to be
found.
*
* 12
1
ORIGET V. HEDDEN.
v.
* *
(Supreme Court of United States, 1894. 155 U. S. 228, 15 Sup. Ct. 92, 39
L. Ed. 130.)
FULLER, C. J.13
3. The contention that the importer has
the right to be present throughout the proceedings on the reappraise-
ment, hear or examine all the testimony, and cross-examine the wit-
nesses, which was passed on in Auffmordt v. Hedden, 137 U. S. 310,
11 Sup. Ct. 103, 34 L. Ed. 674, is renewed in this case.
The importer appeared at the opening of the reappraisal, and made
application that he or his associate or his counsel might examine
the various affidavits made by experts, importers, merchants, and
others, be present at the taking of any testimony, and cross-examine
all witnesses produced, or suggest questions to the general appraiser.
The appraisers ruled that they could not accede to this request, but
expressed their desire to hear the importers in regard to their reap-
praisements, and their assurance of appreciation of any suggestions
the importers might make as to asking questions of the witnesses.
The presumption in favor of official action sustains this ruling as being
in accordance with the rules and regulations established by the Sec-
retary of the Treasury, under section 2949 of the Revised Statutes
(U. S. Comp. St. 1901, p. 1940), to secure a just, faithful, and im-
partial appraisal of all merchandise imported into the United States,
and just and proper entries of the actual market value or wholesale
price thereof; and this was indeed the fact, as appears by refer-
ence to the general regulations of 188+, and instructions of June 9,
1885, given at length in Auffmordt v. Hedden.
The following quotation from the instructions of 1885 will suffice
to explain the reasons for the rule: "The law provides that the mer-
chant appraiser shall be familiar with the character and value of the
goods in question, and it is presumed that the general appraiser will
have or will acquire such expert knowledge of the goods he is to ap-
praise as to enable him to intelligently perform his official duty with a
due regard for the rights of all parties and independently of the tes-
timony of interested witnesses. The functions of the reappraising
board are the same as those of the original appraisers. They are
themselves to appraise the goods, and not to depend for their infor-
mation upon the appraisenient of so-called experts in the line of goods
12 See rules regarding examination of immigrants, 125 Fed. 643.
18 Only a portion of the opinion of Fuller, C. J., is printed.
.
209
Ch.5)
HEARING AND EVIDENCE.
1
in question. * *
* Appraisers are authorized to summon wit-
nesses, but there is no authority for the public examination of such
witnesses or their cross-examination by importers or counsel em-
ployed by such importers. The appraising officers are entitled to all
information obtainable concerning the foreign market value of goods
under consideration, but such information is not public property. It
is due to merchants and others called to give such information that
their statements shall be taken in the presence of official persons only.
It must often occur that persons in possession of facts which would
be of value to the appraisers in determining market values are de-
terred from appearing or testifying by the publicity given to reap-
praisement proceedings.'
As already stated, plaintiff in the case at bar was invited by the
appraisers to present his views in regard to the reappraisement, and
to suggest questions to be put to the witnesses. He did not avail him-
self of the opportunity, but insisted on the right to remain throughout
the proceedings, to be informed as to all the evidence, and to cross-
examine the witnesses as in open court. This, according to Auff-
mordt v. Hedden and Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct.
572, 37 Ir. Ed. 436, could not be conceded. I11 those cases it was
ruled that under the revenue system of the United States the question
of the dutiable value of imported articles is not to be tried before
the appraisers, as if it were an issue in a suit in a judicial proceeding;
that such is not the intention of the statutes; that the practice has
been to the contrary from the earliest history of the government; and
that the provisions of the statute in this behalf are open to no con-
stitutional objection.
As respects taxation and assessment for local improvements, such
notice and hearing as are appropriate to the nature of the case, and
afford the opportunity to assert objections to the methods pursued or
to the amount charged, are deemed sufficient for the protection of the
individual. Lent v. Tillson, 140 U. S. 316, 327, 11 Sup. Ct. 825, 35 L.
Ed. 419.
Duties imposed under tariff laws are paid in order that goods may
be brought into the country, and provisions in respect of their levy
and collection are framed in view of the character of the transaction.
The finality of the appraisal is a condition attending the importation
prescribed by the government as essential to the operation of the sys-
tem; and, if the importer is afforded such notice and hearing as
enables him to give his views and make his contention in respect of
the value of his goods, he cannot complain.
Judgment affirmed.
IR.ADM.LAW.--14
210
(Part 1
ADMINISTRATIVE POWER AND ACTION.
SECTION 26.-IN DEALING WITH NUISANCES
REYNOLDS v. SCHULTZ.
(Superior Court of City of New York, 1867. 27 N. Y. Super. Ct. 282.)
ROBERTSON, C. J.14
The statute 15 requires the execu-
tion of the order to be suspended on demand of the party notified, and
a hearing to be given him upon a fair and reasonable opportunity
therefor, when he is to be allowed to give such proofs as he has to of-
fer, and the board may also introduce new proofs. Upon such hear-
ing they may modify or rescind such order in an action at law. The
board were then required to "cause the facts in regard to such com-
plaint to be investigated and the appropriate remedy applied.” This
resembles greatly the trial and decision of issues in an action. If
private individuals failed to call to their notice peccant employments,
premises or substances, such board had a staff of accusers, consist-
ing of ten medical inspectors, to report twice a week on such facts
as had come to their knowledge relative to the purposes of such act.
So that abundant means were provided for obtaining the sufficient
proof which the board were to take, without leaving their office, or
uttering a word themselves, of accusation. I cannot come to any
other conclusion than that such a mode of accusation, or obtaining ev-
idence in advance, with such opportunity of being heard with evi-
dence, and such a node of final determination, was an exercise of
judicial powers, and binding, unless prevented by some positive con-
stitutional prohibition. If the compulsory attendance of witnesses
for the accused, if necessary, be required to make the proceedings
judicial, the board would probably be bound to give him the aid of
the power they possess under the twenty-fourth section of the stat-
ute, to procure testimony. But in this case there is no pretense that
any testimony has been lost by that means. If it had been set up, pos-
sibly this court might have exercised an equitable jurisdiction in
obtaining such testimony, and perhaps also have thereby acquired ju-
risdiction over the whole subject. In order to enable such board to
obtain proof sufficient for them to act upon, there was no necessity of
their becoming active in hunting up testimony. The twenty-first
section of the act requires them to keep a book open for public in-
spection, in which complaints of a sanitary character are to be re-
corded, signed by the accuser with his name, in which is to be entered
the name of the accused, the date and the remedy suggested. This is
not very unlike a complaint.
*
14 Only a portion of the opinion of Robertson, C. J., is printed.
15 For provisions of statute in question, Laws N. Y. 1866, C. 74, see Metro-
politan Board of Health v. Heister, ante, p. 137.
Ch. 5)
211
HEARING AND EVIDENCE.
The main objections to the constitutionality of the exercise of power
under such first subdivision are that such proceedings violate "the
laws of the land” required to be observed by the second section of
the article of the Constitution of this state, and are not "due process
of law" under the sixth section of the same article. The special
points in which they are supposed to deviate therefrom are six in
number, as follows:
(1) That the functions of accuser and judge are blended in the
same body.
(2) That no process is served, or notice of the proceedings given
to parties interested.
(3) That the judgment precedes the trial.
(4) That the accused is not confronted with witnesses against
him.
(5) That the testimony is not under oath, nor the ordinary rules
of evidence observed.
(6) That no means are afforded to the accused to compel the at-
tendance of witnesses.
The remarks already made dispose of the first and last of these ob-
jections. Indeed, I am not aware that there is any warrant for as-
suming that there must be a public prosecutor, except in cases in
which the Constitution requires the presentment of a grand jury in
order to make a conviction legal. Prosecuting officers are the creatures
of statutes, and, however expedient, are not indispensably necessary
to procure the punishment of offenders. The people of the state are
the accusers and “actors” in all cases of public offenses.
The second and third of such objections are inapplicable to the case
of an order, made absolute by the default of a party notified to move
to set it aside after notice, or confirmed after a hearing upon evidence
on both sides. Indeed, they are founded upon the mistaken notion
that the first order is the final adjudication, instead of being a condi-
tional order, made absolute only after a hearing, or neglect to appear
after notice and demand of such hearing. The seizure of chattels in
an action of claim and delivery, or the issuing of a preliminary injunc-
tion order, attachment or order of arrest, would be equally subject to
such an objection.
As to being confronted with witnesses, if that applies to the hearing,
the board are bound to allow it, if their proceeding would otherwise be
unconstitutional, and any irregularity in that respect could be cor-
rected on certiorari. If oaths are necessary to be administered to wit-
nesses, the same rule would prevail.16 Although I am not prepared
to say that an adjuration of a witness, the form of which may be
varied by law, and is allowed according to the conscience of the party
16 Groenvelt v. Burwell, 1 Ld. Raym. 454, 472 (1699): "And by Holt,
Chief Justice, where judicial power is given to persons by statute, they may
by consequence of law administer an oath; but to that, he he would
not give a positive opinion.”
212
(Part 1
ADMINISTRATIVE POWER AND ACTION.
1
sworn, including the simple affirmation of a member of the Society
of Friends, is a constitutional requisition to make a trial valid.
In regard to the attendance of witnesses, what I have already said
as to that cause of complaint will suffice. And I am inclined to think
that it will be found, on examination, that a power to compel the at-
tendance of witnesses for the accused will not be found to be part of
"the law of the land," at least that mentioned in "Magna Charta,"
and was given in more recent times.
There still remains an objection to be considered, to wit, that no
trial by jury is allowed under such statute. The words of the Consti-
tution upon that point are (article 1, § 2) that “the trial by jury in
all cases, in which it has been heretofore used, shall remain inviolate
forever.” The term "case," in such provision, has been held to mean
the kind of action, prosecution or proceeding, and is not confined to
the subject-matter. Thus, in the case of Duffy v. People, 6 Hill, 75,
it was held that a proceeding to compel a husband to support his wife,
being a mere preventive proceeding, like giving security to keep the
peace, did not require a trial by jury, and that, preventive remedies
for similar offenses having been used before the adoption of the Con-
stitution, obtaining them was not a "case" within the meaning of the
Constitution in which trials by jury had been used, although it was
held that the adjudication of the magistrate on the subject of the mar-
riage of the parties, although sufficient to compel giving security, was
not conclusive. But although the judgment for the abatement of a
nuisance at common law, "quod permittat prosternere," may have re-
quired a trial by jury, when demanded, yet courts of equity could al-
ways restrain the conducting of any business which was one, without
such jury. And that is all which the order, as finally modified in this
case, does. Such objection, therefore, falls to the ground.
*
*
*
*
HUTTON v. CITY OF CAMDEN.
(Court of Errors and Appeals of New Jersey, 1876. 39 N. J. Law, 122,
23 Am. Rep. 203.)
BEASLEY, C. J.17
But to rest here would be to put this
matter on too narrow a ground. There is an infirmity in all proceed-
ings of this nature, which lies deeper than the one just noticed. As-
suming the power in this board, derived from the Legislature, to ad-
judge the fact of the existence of a nuisance, and also assuming such
jurisdiction to have been regularly exercised, and upon notice to the
parties interested, still, I think, it is obvious that, in a case such as
that before this court, the finding of the sanitary board cannot operate
in any respect, as a judgment at law would, upon the rights involved.
It will require but little reflection to satisfy any mind, accustomed to
17 For first part of opinion, see ante, p. 136.
Ch. 5)
213
HEARING AND EVIDENCE.
judge by legal standards, of the truth of this remark. To fully esti-
mate the character and extent of the power claimed will conduct us
to its instant rejection. The authority to decide when a nuisance ex-
ists is an authority to find facts, to estimate their force, and to apply
rules of law to the case thus made. This is a judicial function, and it
is a function applicable to a numerous class of important interests.
The use of land and buildings, the enjoyment of water rights, the prac-
tice of many trades and occupations, and the business of manufacturing
in particular localities, all fall, on some occasions, in important respects,
within its sphere. To say to a man that he shall not use his property
as he pleases, under certain conditions, is to deprive him, pro tanto, of
the enjoyment of such property. To find conclusively against him
that a state of facts exists with respect to the use of his property, or
the pursuit of his business, which subjects him to the condemnation
of the law, is to affect his rights in a vital point.
The next thing to depriving a man of his property is to circumscribe
him in its use, and the right to use property is as much under the pro-
tection of the law as the property itself, in any other aspect, is; and
the one interest can no more be taken out of the hands of the ordinary
tribunals than the other can. If a man's property cannot be taken
away from him except upon trial by jury, or by the exercise of the
right of eminent domain upon compensation made, neither can he, in
any other mode, be limited in the use of it. The right to abate public
nuisances, whether we regard it as existing in the municipalities, or
in the community, or in the land of the individual, is a common-law
right, and is derived, in every instance of its exercise, from the same
source—that of necessity. It is akin to the right of destroying prop-
erty for the public safety, in case of the prevalence of a devastating
fire or other controlling exigency. But the necessity must be present
to justify the exercise of the right, and whether present or not must
be submitted to a jury under the guidance of a court. The finding of
a sanitary committee, or of a municipal council, or of any other body
of a similar kind, can have no effect whatever, for any purpose, upon
the ultimate disposition of a matter of this kind. It cannot be used
as evidence in any legal proceeding, for the end of establishing, finally,
the fact of nuisance, and if it can be made testimony for any purpose
it would seem that it can be such only to show that the persons act-
ing in pursuance of it were devoid of that malicious spirit which
sometimes aggravates a trespass, and swells the damages.
I repeat that the question of nuisance can conclusively be decided,
for all legal uses, by the established courts of law or equity alone,
and that the resolutions of officers, or of boards organized by force ·
of municipal charters, cannot, to any degree, control such decision.
**
* 18
18 Accord: Munn v. Corbin, 8 Colo. App. 113, 44 Pac. 783 (1896).
214
(Part 1
ADMINISTRATIVE POWER AND ACTION.
SECTION 27.-IN REMOVING FROM OFFICE
STATE ex rel. MEADER V. SULLIVAN.
(Supreme Court of Ohio, 1898. 58 Ohio St. 504, 51 N. E. 48, 65 Am. St.
Rep. 781.)
Spear, C. J.19 Two questions are presented. One relates to the
sufficiency of the charges; the other, to the action of the mayor upon
thein.
[The decision upon the first question is here omitted. See
ante, p. 188.]
Upon the other branch of the case it will be noted that the an-
swer avers that at the trial “not a word of evidence tending to sus-
tain the truth of the facts alleged in said charges, or either of them,
was adduced or heard by said mayor, and that no statement or in-
formation of any personal or official knowledge of the mayor, of any
kind, tending to substantiate or prove the facts alleged in said charges,
or either of them, was made or communicated to this defendant."
It will be further noted that in his order the mayor recites that, “I
find from the evidence, and also from the facts within my personal
knowledge," etc. As stated elsewhere, the power given the mayor
is not judicial within the meaning of the Constitution, yet, as al-
ready found, it is not to be exercised arbitrarily; that is, a hearing is
to be given the accused, and he is to have the opportunity to refute
what is adduced against him. So that it would not be a proper ex-
ercise of power for the mayor to determine the truth of a charge on
his own personal knowledge without making that publicly known,
and offering the opportunity above alluded to. If the averment that
not a word of evidence tending to sustain the truth of the facts al-
leged was adduced or heard by the mayor, etc., is to be taken as an
averment that no testimony at all was heard, but that the mayor's
finding rested entirely on facts within his personal knowledge, un-
communicated—and it is insisted by counsel for defendant in error
that such is its meaning—then clearly, upon this ground, also, should
the mayor's order be held invalid.
The majority of the court, at least, inclines to regard the legal
effect of the averment as a conclusion of law merely; that is, that in
the opinion of the pleader the evidence did not tend to sustain the
'truth of the charges, and that whatever statement the mayor may
have made upon personal knowledge did not tend to substantiate the
facts alleged.
19 For statement of case, see ante,, p. 188.
Ch. 5)
215
HEARING AND EVIDENCE.
Judg-
The decision therefore is rested upon the first proposition.
ment affirmed.20
MINSHALL, J., dissents.
PEOPLE ex rel. MCALEER v. FRENCH et al.
(Court of Appeals of New York, 1890. 119 N. Y. 502, 23 N. E. 1061.)
Appeal from Supreme Court, General Term, First Department.
The police commissioners of New York city dismissed the relator
from the police force for intoxication. On certiorari that order was
affirmed by the Supreme Court, General Term, and relator appeals.
EARL, J.21 The members of the police force of the city of New
York have a permanent tenure of office; and they cannot be dis-
missed from the force, for any fault or misconduct, until after
charges have been preferred against them, and such charges have
been examined, heard, and investigated as provided in the statutes,
and the rules adopted by the board of police commissioners. The fol-
lowing is one of the rules adopted by that board: “Any member of
the police force may be punished by the board of police, in their dis-
cretion, either by reprimand, forfeiture, and withholding pay, not
exceeding thirty days for any one offense, or by dismissal from the
force on conviction of either of the following offenses, to wit."
Among the offenses specified are intoxication, neglect of duty, and
conduct unbecoming an officer. We are dealing in this case with the
offense of intoxication, as that was the charge made against the relator.
Taking the case as it appears to us, it was certainly a very
severe punishment to dismiss the relator from the police force, where
he had so long and faithfully served. But the extent of the punish-
ment rested entirely in the discretion of the commissioners, and neither
the Supreme Court nor this court has any jurisdiction to interfere
therewith.
We think the force and effect of the decision in the Masterson
Case 22 has been somewhat misapprehended. In determining the
guilt of a police officer who is on trial for charges preferred against
him, the police commissioners cannot act upon their own knowledge.
The charges must be tried upon evidence, and the guilt must be es-
tablished by evidence produced before the commissioners upon the
20 "The law contemplates that the members of the board will act upon
proof of some sort appropriate to the case and made a matter of record; not
necessarily that they will in all cases act regardiess of personal investiga-
tion, but that in case of reliance thereon the result of the investigation will
be made matter of record.” State ex rel. Medical College v. Chittenden, 127
Wis. 468, 517, 107 N. W. 500 (1906).
21 Only a portion of the opinion of Earl, J., is printed.
22 People ex rel. Masterson v. French, 110 N. Y. 494, 18 N. E. 133 (1888).
See, also, People v. Glennon, 37 Misc. Rep. 1, 74 N. Y. Supp. 794 (1902).
216
(Part 1
ADMINISTRATIVE POWER AND ACTION.
trial. They can neither act upon their own knowledge, nor supple-
ment the evidence by their own knowledge. But, in inflicting the
punishment, they may take into consideration the evidence, as well
as their own knowledge of the police officer, and inflict such punish-
ment, authorized by the rules and the statutes, as, in their judgment,
the case, in view of all the circumstances, requires. We did not de-
termine in that case that the Supreme Court, upon certiorari, did not
have jurisdiction to review the determination of the police commis-
sioners upon the evidence; and it is a mistake to suppose that, if
there is any evidence in the record brought to the Supreme Court by
certiorari sustaining the determination of the commissioners, that
court has no right to interfere therewith. Such is the rule in this
court, and such was the rule at common law.
But now, by section 2140 of the Code of Civil Procedure, upon the
hearing on the return of a writ of certiorari the Supreme Court may
inquire whether there was any competent proof of all the facts neces-
sary to prove in order to authorize the making of the determination,
and, if there was such proof, whether there was, "upon all the
evidence, such a preponderance of proof against the existence of
any of those facts that the verdict of a jury affirming the existence
thereof, rendered in an action in the Supreme Court triable by a
jury, would be set aside by the court as against the weight of evi-
dence." Therefore, in all this class of cases, it is the duty of the
Supreme Court, not only to inquire whether there is any competent
proof tending to establish the guilt of the accused officer, but it must
look into the evidence; and, if it finds that there is a preponder-
ance of evidence against the determination of the commissioners, then
it has the same jurisdiction to reverse the determination that it has
to set aside the verdict of a jury as against the weight of evidence.
It is the purpose of the law to give a review in the Supreme Court
by certiorari, not only upon the law, but upon the evidence, to the ex-
tent specified in the statute; and every party who seeks such a re-
view is entitled to the fair and judicious exercise of that jurisdiction.
We do not perceive that the relator's right to call witnesses, and
have them sworn in his behalf, upon his trial, was denied or curtailed
by the police commissioner who took the evidence. We are there-
fore constrained to affirm the order; but, under the circumstances, it
must be without costs.
Ch. 5)
HEARING AND EVIDENCE.
217
SECTION 28.-POWER TO OBTAIN INFORMATION 23
LANGENBERG v. DECKER.
(Supreme Court of Indiana, 1892. 131 Ind. 471, 31 N. E. 190, 16 L. R.
A. 108.)
Appeal from superior court, Marion county.
Proceedings in habeas corpus by Philip Decker against Henry W.
Langenberg, Sheriff of Marion County. From a judgment discharg-
ing plaintiff from custody defendant appeals. Affirmed.
COFFEY, J.24 The General Assembly of the state passed an act,
which was approved and went into force on the 6th day of March,
1891, entitled “An act concerning taxation, repealing all laws in con-
flict herewith, and declaring an emergency.” The act creates a state
board of tax commissioners, composed of five persons, viz., the Sec-
retary of State, the Auditor of State, and the Governor of the state,
who are styled ex officio members, and two persons of opposite polit-
ical faith, appointed by the Governor of the state.
It also
contains this provision: "They shall have the power to send for per-
sons, books, and papers, to examine records, hear and question wit-
nesses, to punish for contempt any one who refuses to appear and
answer questions by fine not exceeding one thousand dollars, and by
imprisonment in the county jail of any county not exceeding thirty
days, or both. Appeals shall lie to the criminal court of Marion coun-
ty from all orders of the board inflicting such punishment, which ap-
*
23 The power to require an oath (to be administered by some official au-
thorized to administer oaths) may be implied from usage. United States v.
Bailey, 9 Pet. 238, 9 L. Ed. 113 (1835). See, also, Caba v. United States,
152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 115 (1894).
Power to require production of papers, etc. Boyd v. United States, 116 U.
S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746 (1886); State v. Davis, 108 Mio. 666,
18 S. W. 894, 32 Am. St. Rep. 640 (1892); St. Joseph 7. Levin, 128 Mo. 558,
31 S. W. 101, 49 Am. St. Rep. 577 (1895).
As to powers of inquisition, see Commissioners of Enquiry, 12 Coke, 31;
article on the Corporation Commission, 11 Law Magazine 68; University Con-
mission, 15 Law Magazine (N. S.) 79.
Power to require information or reports, tending to incriminate. Com. v.
Emery, 107 Mass. 172, 9 Am. Rep. 22 (1871); Counselman v. Hitchcock, 142
U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110 (1892); Brown v. Walker, 161 U.
S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819 (1896); People ex rel. Lewisohu v. O'- .
Brien, 176 N. Y. 253, 68 N. E. 353 (1903), overruling People v. Kelly, 24 N.
Y. 74 (1861); People v. Butler Street Foundry Co., 201 Ill. 236, 66 N. E. 349
(1903); Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652 (1906).
For general administrative power to obtain information (not to be found
in English or American law), see General Administrative Act of Prussia of
July 30, 1883, § 119: "The administrative authorities have power, even in
other cases than those expressly designated by law, to summon parties in in-
terest or their authorized representatives to an oral hearing for the purpose
of ascertaining facts.”
24 Only a portion of the opinion by Coffey, J., is printed.
218
(Part 1
ADMINISTRATIVE POWER AND ACTION.
peals shall be governed by the laws providing for appeals in criminal
cases from justices of the peace, so far as applicable. The sheriffs
of the several counties of the state shall serve all process and execute
all orders of the board."
Claiming to act under the power and authority conferred upon it
by the provisions of the statute, the state board of tax commissioners,
on its own motion, caused a subpæna duces tecum to be issued to all
the banks in the state, requiring the president, cashier, and bookkeeper,
or either of them, of the bank named in the subpoena, to appear be-
fore the board at the office of the state board of tax commissioners
in the state house in the city of Indianapolis, on a day named in the
subpæna, and to bring and have with them then and there such books,
papers, and accounts of such banking institution as should fully dis-
close and show the names of all persons having money, bonds, stocks,
notes, or other property of value on deposit and in the custody of
such bank on the 1st day of April, 1891, and the respective amounts
of such deposits or other property in the custody of the bank, and to
answer all questions which might be asked in relation thereto or with
reference to the property owned by the bank itself.
One of the subpænas was served upon the appellee at the city
of Evansville, where he resides, and where he is vice president of a
state bank known as the German Bank of Evansville. In answer to
the subpæna he appeared before the state board of tax commissioners
on the 25th day of August, 1891, when there were present of the
members of the board the following persons, and others, viz., Claude
Matthews, Secretary of State, acting as president of the board, J. O.
Henderson, Auditor of State, and Ivan N. Walker.
Upon his appearance he was duly sworn, when the following pro-
ceedings were had, viz.: “Question. State your name and place of
residence. Answer. Philip C. Decker. I reside in the city of Evans-
ville. Q. In what business are you engaged? A. That of banking.
Q. With what institution are you engaged, and in what capacity ? A.
I am vice president of the German Bank of Evansville, Indiana. The
president lately died, and I am acting as president. Our bank was
organized under the laws of Indiana. Q. State the aggregate amount
of the individual deposits held by the German Bank, of which you are
vice president, on the 1st day of April, 1891. A. About $300,000. 0.
Give the amount of money held on deposit by said bank on the 1st
day of April, 1891, belonging to some one depositor. The Witness:
Before answering the question, I respectfully ask the board whether
there is any appeal, complaint, suit, or proceeding of any kind pend-
ing before this board or elsewhere to assess any depositor, or to re-
vise his tax list in any manner. By the Board: No. We are exer-
cising the power of discovery. The Witness: I decline to answer,
under the advice of counsel, either as to the name of any depositor
or the amount of his deposit.
*
*)25
25 A number of similar questions and answers followed, which are omitted.
Ch.5)
219
HEARING AND EVIDENCE.
Thereupon the state board of tax commissioners, because of the
refusal of the appellee to appear and answer the questions above set
forth, and to give the information thereby sought to be elicited, as-
sessed against him a fine of $500, and that he stand committed until
the fine be paid or replevied, and entered the following judgment:
“Therefore it is considered and ordered by the state board of tax
commissioners that Philip C. Decker, on account of his refusal to ap-
pear and answer questions, and his disobedience to the order of this
board, be, and hereby is, fined in the sum of five hundred dollars
($500); and it is further considered by the board that said Philip
C. Decker do stand committed to the jail of Marion county, Indiana,
until said fine be paid or replevied."
Upon entering the foregoing judgment, the secretary of the board
clelivered to the appellant, as the sheriff of Marion county, a commit-
ment reciting the fact that the appellee had been fined the sum of $500
for contempt, and ordering that he be committed to the jail of Marion
county until discharged by due process of law. Upon this commit-
ment the appellee was arrested. He thereupon filed his petition in
the Marion superior court, praying for a writ of habeas corpus. To
the writ issued upon this petition the appellant made his return, stat-
ing, among other things, substantially the proceedings above set
forth. To this return the appellee filed exceptions, which were sus-
tained by the court, and an order was entered discharging the appellee
from custody.
The assignment of error calls in question the propriety of the rul-
ing of the Marion superior court in sustaining the exceptions to the
return made by the appellant to the writ of habeas corpus. It is con-
tended by the appellee: First. That the power to punish for contempt
is a judicial function, which can only be exercised by a court, and,
if it be claimed that the act in question makes the state board of tax
commissioners a court, then so much of the act as seeks to do so is
void, because it is not embraced in the title of the act, and because
three of the persons constituting the board are forbidden by the con-
stitution of the state from exercising judicial functions. Second.
That, if the board has power to punish for contempt, it can only do
so for the refusal of a witness to appear and answer questions per-
tinent and material to some issue in a suit, action, or proceeding then
pending. Third. That the proceedings of the board in this matter
are in violation of the provisions of the Constitution of the United
States, which provides that “the right of the people to be secure in
their persons, houses, papers, and effects against unreasonable searches
and seizures shall not be violated, and no warrant shall issue but
upon reasonable cause, supported by oath or affirmation, and partic-
ularly describing the place to be searched, and the person or thing
to be seized.” Fourth. That the state board of tax commissioners has
no original jurisdiction, except in the matter of the assessment of
railway corporations, and equalizing the assessments of real estate.
220
(Part 1
ADMINISTRATIVE POWER AND ACTION.
These several propositions have been ably and exhaustively argued
on both sides, not only in the briefs on file, but also orally in open
court; but it seems to us that, if the first proposition presented by
the appellee, namely, that so much of the statute in question as at-
tempts to confer on the state board of tax commissioners the power
to fine and imprison for contempt of its authority is void by reason
of being in conflict with the state constitution, can be sustained, the
other questions presented do not necessarily or properly arise. If
this position cannot be maintained, then some or all of the other prop-
ositions do arise, and must be decided by this court. But the first in-
quiry in a case like this leads naturally to an investigation of the au-
thority under which the complaining party has been deprived of his
liberty. The solution of the question presented renders it necessary
that we shall inquire–First, as to what department of the state
government the state board of tax commissioners belongs; and, sec-
ond, into the nature of the power to fine and commit for contempt.
It is often a matter of much difficulty to determine whether the
functions exercised by a tribunal of this character are such as per-
tain exclusively to the courts, or whether they are such as it may law-
fully exercise. Mr. Mechem on Public Office and Officers (section
637) says: “Quasi judicial functions
are those which lie
midway between the judicial and ministerial ones.
The line sep-
arating them from such as are thus on their two sides are necessarily
indistinct; but, in general terms, when the law in words or by impli-
cation commits to any officer the duty of looking into facts, but after
a discretion in its nature judicial, the function is termed quasi judi-
cial."
That it was in the power of the General Assembly to confer on the
state board of tax commissioners the power to hear and determine
appeals from the county boards of review, to equalize the assessments
of real estate, and to assess the railroad property named in the act,
is not doubted; and the question as to whether the Legislature could
confer upon it the power to fine and imprison the citizens of the state
for contempt of its authority depends upon whether such action is
purely judicial or only quasi judicial. A proceeding against a per-
son as for a contempt is ordinarily in the nature of a criminal pro-
ceeding, and statutes authorizing punishment for contempt of the
authority of a tribunal are criminal statutes, and are to be strictly con-
strued. Maxwell v. Rives, 11 Nev. 213; Holman v. State, 105 Ind.
513, 5 N. E. 556.
In the case of Ex parte Doll, Y Phila. (Pa.) 595, Fed. Cas. No. 3,968,
in discharging the prisoner, who had been committed by a
missioner appointed by the United States Circuit Court as for a con-
tempt for refusing to appear and testify and produce certain books,
the court said: "I very much doubt the power of Congress to invest
a commissioner with authority in a proceeding originally brought be-
coin-
Ch. 5)
221
HEARING AND EVIDENCE,
fore him to summarily commit a citizen for alleged contempt. This
was an exercise of the judicial power of the United States, which,
under the Constitution, could not be intrusted to an officer appointed
and holding his office in the manner in which they were appointed
and held their offices.''26
Again, in the celebrated case of Kilbourn v. Thompson, 103 U.
S. 182, 26 L. Ed. 377, involving the question of the power of Congress
to arrest and punish a witness for contempt in refusing to answer
questions before a committee of the house, Justice Miller, in speak-
ing for the court said: “The Constitution declares that no person shall
be deprived of his life, liberty, or property without due process of
law, and it has been repeatedly held by the United States Supreme
Court that this means a trial in which the rights of the party shall
be decided by a court of justice, appointed by law, and governed
by the rules of law previously established.”
So again, in the case of In re Mason (D. C.) 43 Fed. 510, in which
Mason had been committed by a United States circuit court commis-
sioner for contempt in failing to appear and testify as a witness, the
court said: “To arrest and punish for a contempt is the highest exer-
cise of judicial power, and belongs to judges of courts of record or
superior courts. Where jurisdiction exists there can be no review.
A pardon by the executive is in most cases the mode of release. This
power is not, and never has been, an incident to the mere exercise of
judicial function, and such power cannot be upheld upon inference
and implication, but must be expressly conferred by law.'
As bearing upon the question now under discussion, see, also, In
re McLean (D. C.) 37 Fed. 648; Anderson v. Dunn, 6 Wheat. 204,
5 L. Ed. 242; Shoultz v. McPheeters, 79 Ind. '373; Vandercook v.
Williams, 106 Ind. 345, 1 N. E. 619, 8 N. E. 113; Ex parte Milligan,
4 Wall. 2, 18 L. Ed. 281; Gregory v. State, 94 Ind. 385, 48 Am. Rep.
162; Whitcomb's Case, 120 Mass. 118, 21 Am. Rep. 502.
These cases lead to the inevitable conclusion that the power to pun-
ish for contempt belongs exclusively to the courts, except in cases
where the Constitution of a state expressly confers such power upon
some other body or tribunal. Our state Constitution confers such
power upon the General Assembly, but upon no other body. The
doctrine that such power rests with the courts alone is based upon the
fact that a party cannot be deprived of his liberty without a trial.
To adjudge a person guilty of contempt for a refusal to answer ques-
tions, the tribunal must determine whether such questions are mate-
riąl, and whether it is a question which the witness is bound to an-
swer; otherwise it cannot be determined that the witness is in con-
tempt of its authority in refusing to answer.
So far as we are informed, the trial of a citizen, involving the ques-
tion of his liberty, by any civil tribunal other than a court, has never
been sustained, unless the power to do so was conferred by some con-
26 See, also, United States v. Beavers (D. C.) 125 Fed. 778 (1903).
222
(Part 1
ADMINISTRATIVE POWER AND ACTION.
stitutional provision. For the reasons above given, our conclusion is
that so much of the act under consideration as attempts to confer on
the state board of tax commissioners power to fine and imprison for
contempt is in violation of section 1, art. 3, of our state Constitution,
and is void. It follows that such board has no authority to fine the
appellee, and commit him to the jail of Marion county, and that the
Marion superior court did not err in ordering his release.
Judgment affirmed.27
*
*
INTERSTATE COMMERCE COMMISSION v. BRIMSON et al.
(Supreme Court of United States, 1894. 154 U. S. 447, 14 Sup. Ct. 1125, 38
L. Ed. 1047.)
Appeal from the Circuit Court of the United States for the North-
ern District of Illinois.
This was a petition by the Interstate Commerce Commission for an
order requiring W. G. Brimson, J. S. Keefe, and W. R. Sterling to
appear before the commission and answer certain questions, and re-
quiring Keefe and Sterling to produce before the commission certain
books. The Circuit Court dismissed the petition. 53 Fed. 476. The
commission appealed.
Mr. Justice HARLAN.28 This appeal brings up for review a judg-
ment rendered December 17, 1892, dismissing a petition filed in the
Circuit Court of the United States on the 15th day of July, 1892, by
the Interstate Commerce Commission, under the act of Congress en-
titled "An act to regulate commerce," approved February 4, 1887,
and amended by the acts of March 2, 1889, and February 10, 1891.
24 Stat. 379, c. 104; 25 Stat. 855, c. 382; 26 Stat. 743, c. 128; 1
Supp. Rev. St. 529, 684, 891 (U. S. Comp. St. 1901, p. 3154).
The petition was based on the twelfth section of the act authoriz-
ing the commission to invoke the aid of any court of the United States
in requiring the attendance and testimony of witnesses, and the pro-
duction of documents, books, and papers.
The Circuit Court held that section to be unconstitutional and void,
as imposing on the judicial tribunals of the United States duties that
were not judicial in their nature. In the judgment of that court,
this proceeding was not a case to which the judicial power of the
United States extended. 53 Fed. 476, 480.
27 See Matter of Sims, 54 Kan. 1, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St.
Rep. 261 (1894); De Camp v. Archibald, 50 Ohio St. 618, 35 N. 11. 1056, 40
Am. St. Rep. 692 (1893); State ex rel. Haughey v. Ryan, 182 Mo. 349, 81
S. W. 435 (1904).
"It is true that some persons have power to commit, who are not judges,
as a constable may commit for an affray committed in his presence; and he
is liable to an action if the act is false. The difference is that he does not
commit for punishment, but for safe custody." Groenvelt v. Burwell, 1 Ld.
Raym. 454, 467 (1699),
28 Only a portion of the opinion is printed.
Ch. 5)
223
HEARING AND EVIDENCE.
1
The twelfth section (26 Stat. 743, c. 128), the validity of certain
parts of which is involved in this proceeding, provides as follows:
"That the commission hereby created shall have authority to in-
quire into the management of the business of all common carriers
subject to the provisions of this act, and shall keep itself informed as
to the manner and method in which the same is conducted, and shall
have the right to obtain from such common carriers full and complete
information necessary to enable the commission to perform the duties
and carry out the objects for which it was created; and the commis-
sion is hereby authorized and required to execute and enforce the
provisions of this act; and, upon the request of the commission, it
shall be the duty of any district attorney of the United States to
whom the commission may apply to institute in the proper court and
to prosecute under the direction of the Attorney General of the Unit-
ed States all necessary proceedings for the enforcement of the pro-
visions of this act and for the punishment of all violations thereof,
and the costs and expenses of such prosecution shall be paid out of
the appropriation for the expenses of the courts of the United States;
and for the purposes of this act the commission shall have power to
require, by subpæna, the attendance and testimony of witnesses and
the production of all books, papers, tariffs, contracts, agreements,
and documents relating to any matter under investigation.
"Such attendance of witnesses and the production of such docu-
mentary evidence, may be required from any place in the United
States, at any designated place of hearing. And in case of disobedience
to a subpæna the commission, or any party to a proceeding before
the commission, may invoke the aid of any court of the United States
in requiring the attendance and testimony of witnesses and the pro-
duction of books, papers, and documents under the provisions of this
section.
"And any of the Circuit Courts of the United States within the
jurisdiction of which such inquiry is carried on may, in case of con-
tumacy or refusal to obey a subpæna issued to any common carrier
subject to the provisions of this act, or other person, issue an order
requiring such common carrier or other person to appear before said
commission (and produce books and papers if so ordered) and give
evidence touching the matter in question; and any failure to obey
such order of the court may be punished by such court as a contempt
thereof. The claim that any such testimony or evidence may tend to
criminate the person giving such evidence shall not excuse such wit-
ness from testifying; but such evidence or testimony shall not be
used against such person on the trial of any criminal proceeding.
*
*")
J. S. Keefe, secretary and auditor of the five roads mentioned, was
examined by the commission as a witness. He admitted that he
had in his possession a book showing the names of the stockholders
of the Calumet & Blue Island Railway Company, but refused, upon
224
(Part 1
ADMINISTRATIVE POWER AND ACTION.
the demand of the commission, to produce it. He also refused to
answer the question, “Do you know, as a matter of fact, whether the
Illinois Steel Company owns the greater part of the stock of these
several railroads?"
William R. Sterling, first vice president of the Illinois Steel Com-
pany, was also examined as a witness, and, after stating that that
company had a contract with the five railroads in question to handle
the railroad business at the five "plants" of the steel company, refused
to answer the question, “Is that the only relation which your company
sustains to these railroad companies ?"
On the succeeding day the commission issued a subpæna duces
tecum, directed to J. S. Keefe, secretary and auditor of the five rail-
roads in question, commanding him to appear before that body, and
bring with him the stock books of those companies. A like subpæna
was issued to William R. Sterling, as first vice president of the steel
company, commanding him to appear before the commission and
produce the stock books of that company. Keefe and Sterling ap-
peared in answer to the subpænas, but refused to produce the books,
or either of them, so ordered to be produced.
The commission thereupon, on the 15th day of July, 1892, pre-
sented to and filed in the court below its petition, embodying the above
facts, and prayed that an order be made requiring and commanding
Brimson, Keefe, and Sterling to appear before that body and an-
swer the several questions propounded by them, and which they had
respectively refused to answer, and requiring Keefe and Sterling
to appear and produce before the commission the stock books above
referred to as in their possession.
The answers of Brimson, Keefe, and Sterling in the present pro-
ceeding, besides insisting that the questions propounded to them, re-
spectively; were immaterial and irrelevant, were based mainly upon
the ground that so much of the interstate commerce act as empowered
the commission to require the attendance and testimony of witnesses
and the production of books, papers, and documents, and authorizes
the Circuit Court of the United States to order common carriers or per-
sons to appear before the commission and produce books and papers
and give evidence, and to punish by process for contempt any failure to
obey such order of the court, was repugnant to the Constitution of the
United States.
Is the twelfth section of the act unconstitutional and void, so far
as it authorizes or requires the Circuit Courts of the United States
to use their process in aid of inquiries before the commission? The
court recognizes the importance of this question, and has bestowed
upon it the most careful consideration.
As the Constitution extends the judicial power of the United States
to all cases in law and equity arising under that instrument or under
the laws of the United States, as well as to all controversies to which
the United States shall be a party (article 3, § 2), and as the Circuit
Ch. 5)
225
HEARING AND EVIDENCE.
Courts of the United States are capable, under the statutes defining
and regulating their jurisdiction, of exerting such power in cases or
controversies of that character, within the limits prescribed by Con-
gress (25 Stat. 434, c. 866), the fundamental inquiry on this appeal
is whether the present proceeding is a "case" or "controversy," with-
in the meaning of the Constitution. The Circuit Court, as we have
seen, regarded the petition of the Interstate Commerce Commission
as nothing more than an application by an administrative body to a
judicial tribunal for the exercise of its functions in aid of the exe-
cution of duties not of a judicial nature, and accordingly adjudged
that this proceeding did not constitute a case or controversy to which
the judicial power of the United States could be extended.
At the same time the learned court said: “Undoubtedly, Congress
may confer upon a nonjudicial body authority to obtain information
necessary for legitimate governmental purposes, and make refusal
to appear and testify before it touching matters pertinent to any au-
thorized inquiry an offense punishable by the courts, subject, how-
ever, to the privilege of witnesses to make no disclosures which might
tend to criminate them or subject them to penalties or forfeitures.
A prosecution or an action for violation of such a statute would clear-
ly be an original suit or controversy between parties, within the mean-
ing of the Constitution, and not a mere application, like the present
one, for the exercise of the judicial power in aid of a nonjudicial
body." In re Interstate Commerce Commission (C. C.) 53 Fed. 476,
480.
In other words, if the interstate commerce act made the refusal
of a witness duly summoned to appear and testify before the commis-
sion, in respect to a matter rightfully committed by Congress to that
body for examination, an offense against the United States, punish-
able by fine or imprisonment, or both, a criminal prosecution or an
information for the violation of such a statute would be a case or
controversy to which the judicial power of the United States ex-
tended; while a direct civil proceeding, expressly authorized by an
act of Congress, in the name of the commission, and under the direc-
tion of the Attorney General of the United States, against the witness
so refusing to testify, to compel him to give evidence before the
commission touching the same matter, would not be a case or con-
troversy of which cognizance could be taken by any court established
by Congress to receive the judicial power of the United States.
This interpretation of the Constitution would restrict the employ-
ment of means to carry into effect powers granted to congress within
much narrower limits than, in our judgment, are warranted by that
instrument.
The question so presented is substantially, if not precisely, that
which would arise if the witness was proceeded against by an indict-
ment under an act of Congress declaring it to be an offense against
FR. ADM.LAW -15
*
*
226
(Part 1
ADMINISTRATIVE POWER AND ACTION.
the United States for any one to refuse to testify before the commis-
sion after being duly summoned, or to produce books, papers, etc.,
in his possession upon notice to do so, or imposing penalties for such
refusal to testify or to produce the required books, papers, and docu-
ments. A prosecution for such offense, or a proceeding by informa-
tion to recover such penalties, would have as its real and ultimate
object to compel obedience to the rightful orders of the commission,
while it was exerting the powers given to it by Congress; and such
is the sole object of the present direct proceeding. The United States
asserts its right, under the Constitution and laws, to have these ap-
pellees answer the questions propounded to them by the commission,
and to produce specified books, papers, etc., in their possession or
under their control. It insists that the evidence called for is mate-
rial in the matter under investigation; that the subject of investiga-
tion is within legislative cognizance, and may be inquired of by any
tribunal constituted by Congress for that purpose. The appellees
deny that any such rights exist in the general government, or that
they are under a legal duty, even if such evidence be important or
vital in the enforcement of the interstate commerce act, to do what
is required of them by the commission. Thus has arisen a dispute
involving rights or claims asserted by the respective parties to it;
and the power to determine it directly, and, as between the parties,
finally, must reside somewhere. It cannot be that the general gov-
ernment, with all the power conferred upon it by the people of the
United States, is helpless in such an emergency, and is unable to pro-
vide some method, judicial in form and direct in its operation, for
the prompt and conclusive determination of this dispute.
The views we have expressed in the present case are not inconsistent
with anything said or decided in those cases. They do not in any
manner infringe upon the salutary doctrine that Congress, excluding
the special cases provided for in the Constitution-as, for instance,
in section 2 of article 2 of that instrument—may not impose upon
the courts of the United States any duties not strictly judicial. The
duties assigned to the Circuit Courts of the United States by the
twelfth section of the interstate commerce act are judicial in their
nature. The inquiry whether a witness before the commission is bound
to answer a particular question propounded to him, or to produce
books, papers, etc., in his possession, and called for by that body,
is one that cannot be committed to a subordinate administrative or
executive tribunal for final determination. Such a body could not,
under our system of government, and consistently with due process
of law, be invested with authority to compel obedience to its orders
by a judgment of fine or imprisonment. Except in the particular
*
* 29
29 The court refers to Gordon v. United States, 117 U. S. 697 (1864), and
In re Sanborn, 148 U. S. 222, 13 Sup. Ct. 577, 37 L. Ed. 429 (1893), holding
that there is no judgment in the legal sense of the term, when the action of
the courts is subject to be set aside by another department of the government.
Ch.5)
227
HEARING AND EVIDENCE.
1
instances enumerated in the Constitution, and considered in Ander-
son v. Dunn, 6 Wheat. 204, 5 L. Ed. 242 and in Kilbourn v. Thomp-
son, 103 U. S. 168, 190, 26 L. Ed. 377, of the exercise by either house
of Congress of its right to punish disorderly behavior upon the part
of its members, and to compel the attendance of witnesses and the pro-
duction of papers in election and impeachment cases and in cases
that may involve the existence of those bodies, the power to impose
fine or imprisonment in order to compel the performance of a legal
duty imposed by the United States can only be exerted, under the
law of the land, by a competent judicial tribunal having jurisdiction
in the premises. See Whitcomb's Case, 120 Mass. 118, 21 Am. Rep.
502, and authorities there cited.
Without the aid of judicial process of some kind, the regulations
that Congress may establish in respect to interstate commerce can-
not be adequately or efficiently enforced. One mode, as already
suggested (the validity of which is not questioned), of compelling
a witness to testify before the Interstate Commerce Commission to an-
swer questions propounded to him relating to the matter under in-
vestigation, and which the law makes it his duty to answer, and to
produce books, papers, etc., is to make his refusal to appear and an-
swer, or to produce the documentary evidence called for, an offense
against the United States, punishable by fine or imprisonment. A
criminal prosecution of the witness under such a statute, it is con-
ceded, would be a case or controversy, within the meaning of the
Constitution, of which a court of the United States could take juris-
diction. Another mode would be to proceed by information to recover
any penalty imposed by the statute. A proceeding of that character,
it is also conceded, would be a case or controversy of which a court
of the United States could take cognizance. If, however, Congress, ,
in its wisdom, authorizes the commission to bring before a court of
the United States for determination the issues between it and a wit-
ness, that mode of enforcing the act of Congress, and of compelling
the witness to perform his duty, is said not to be judicial, and is be-
yond the power of Congress to prescribe.
We cannot assent to any view of the Constitution that concedes the
power of Congress to accomplish a named result indirectly, by par-
ticular forms of judicial procedure, but denies its power to accom-
plish the same result directly, and by a different proceeding judicial
in form. We could not do so without denying to Congress the broad
discretion with which it is invested by the Constitution of employ-
ing all or any of the means that are appropriate or plainly adapted
to an end which it has unquestioned power to accomplish; namely,
the protection of interstate commerce against improper burdens and
discriminations. Indeed, of all the modes that could be constitutionally
prescribed for the enforcement of the regulations embodied in the
interstate commerce act, that provided by the twelfth section is the
one which, more than any other, will protect the public against the
228
(Part 1
ADMINISTRATIVE POWER AND ACTION.
devices of those who, taking advantage of special circumstances, or
by means of combinations too powerful to be resisted and overcome
by individual effort, would subject commerce among the states to
unjust and unreasonable burdens.
The present proceeding is not merely ancillary and advisory. It
is not, as in Gordon's Case, one in which the United States seeks
from the Circuit Court of the United States an opinion that "would
remain a dead letter, and without any operation upon the rights of
the parties.” The proceeding is one for determining rights arising
out of specified matters in dispute that concern both the general
public and the individual defendants. It is one in which a judgment
may be rendered that will be conclusive upon the parties until reversed
by this court; and that judgment may be enforced by the process
of the Circuit Court. Is it not clear that there are here parties on
each side of a dispute involving grave questions of legal rights, that
their respective positions are defined by pleadings, and that the cus-
tomary forms of judicial procedure have been pursued? The per-
formance of the duty which, according to the contention of the gov-
ernment, rests upon the defendants, cannot be directly enforced ex-
cept by judicial process. One of the functions of a court is to compel
a party to perform a duty which the law requires at his hands. If
it be adjudged that the defendants are, in law, obliged to do what
they have refused to do, that determination will not be merely an-
cillary and advisory, but, in the words of Sanborn's Case, will be a
"final and indisputable basis of action," as between the commission
and the defendants, and will furnish a precedent in all similar cases.
It will be as much a judgment that may be carried into effect by ju-
dicial process as one for money, or for the recovery of property, or
a judgment in mandamus commanding the performance of an act or
cluty which the law requires to be performed, or a judgment prohibit-
ing the doing of something which the law will not sanction. It is none
the less the judgment of a judicial tribunal dealing with questions
judicial in their nature, and presented in the customary forms of ju-
dicial proceedings, because its effect may be to aid an administrative
or executive body in the performance of duties legally imposed upon
it by Congress in execution of a power granted by the Constitution.
* 30
For the reasons stated, the judgment is reversed, and the cause is
remanded for further proceedings in conformity with this opinion.
Reversed.
Mr. Justice FIELD was not present at the argument, and took no
part in the consideration or decision of this case. Mr. Chief Justice
FULLER, Mr. Justice BREWER, and Mr. Justice JACKSON, dissent.
30 See, also, Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (C. C.)
37 Fed. 567, 613, 614, 2 L. R. A. 289 (1889).
Ch.5)
229
BEARING AND EVIDENCE,
In re DAVIES, Atty. Gen.
(Court of Appeals of New York, 1901. 168 N. Y. 89, 61 N. E. 118, 56 L. R.
A. 855.)
*
*
*
Appeal from Supreme Court, Appellate Division, Third Depart-
ment.
In the matter of the petition of John C. Davies, Attorney General,
for an order directing Charles W. Morse and others to appear before
a referee for examination. From an order of the Appellate Division
(55 App. Div. 245, 67 N. Y. Supp. 492), reversing an order of the
Special Term denying a motion to vacate and set aside an order di-
recting said Morse and others to appear and be examined under Laws
1899, C. 690, and which vacated such order, the Attorney General ap-
peals. Reversed, and order of Special Term affirmed.
VANN, J.31
The statute which gives rise to this con-
troversy is entitled "An act to prevent monopolies in articles or com-
modities of common use, and to prohibit restraints of trade and com-
merce, providing penalties for violations of the provisions of this act,
and procedure to enable the Attorney General to secure testimony in
relation thereto." Laws 1899, c. 690.
It authorizes the Attorney General to bring an action in the name
of the people against any corporation, foreign or domestic, its officers
or agents, or against any person, "to restrain and prevent the doing
in this state of any act herein declared to be illegal, or any act, ini,
toward or for the making or consummation" of any prohibited con-
tract or combination, wherever the same may have been made. Sec-
tion 3.
It declares that “whenever the Attorney General has determined to
commence an action” under the act, before beginning the same he
may present to any justice of the Supreme Court an application in
writing for an order directing the persons mentioned therein to ap-
pear before such justice "or a referee designated in such order, and
answer such questions as may be put to them,
and produce
such papers, documents and books concerning any alleged illegal con-
tract” or combination in violation of the act. Said application "may
simply show upon" the "information and belief” of the Attorney Gen-
eral “that the testimony of such person or persons is material and neces-
sary.” It is made the duty of the justice to grant the application,
with such preliminary injunction as may appear to him to be proper
and expedient, and of the witness to attend at the time and place des-
ignated. "The testimony of each witness must be subscribed by him,
and all must be filed in the office of the clerk of the county in which
such order for examination is filed." The provisions of the Code of
Civil Procedure relating to the examination of witnesses before the
។
81 Only a portion of this case is printed.
230
(Part 1
ADMINISTRATIVE POWER AND ACTION.
commencement of an action “shall not apply except as herein pre-
scribed.” Section 4.
The order must be signed by the justice making it, and the Attor-
ney General may indorse upon the same "a clause requiring such per-
son to produce on such examination all books, papers and documents
in his possession, or under his control, relating to the subject of such
examination.” Section 5.
No person is “excused from answering any questions or from pro-
ducing any books” because the evidence, documentary or otherwise,
may tend to incriminate him, but he is protected from criminal pros-
ecution and from any penalty or forfeiture "on account of any trans-
action, matter or thing concerning which he may testify, or produce"
documentary evidence. Section 6.
The referee so appointed is given "all the powers and is subject to
all the duties of a referee appointed under section 1018 of the Code of
Civil Procedure, so far as practicable, and may punish for contempt
a witness duly served as prescribed in this act for nonattendance or
refusal to be sworn or to testify, or to produce books," documents,
etc., "in the same manner, and to the same extent as a referee ap-
pointed to hear, try and determine an issue of fact or of law.” Sec-
tion
Pursuant to this act the Attorney General presented to a justice
of the Supreme Court, at chambers, his petition, verified upon infor-
mation and belief, in which he stated that was such officer” he had
determined to commence an action under said statute in the name of
the people against the American Ice Company, a foreign corporation
engaged in business in the state of New York, and against its offi-
cers and directors, to restrain them “from doing in this state any act
in, towards, or for the making or consummation of” a certain con-
tract or combination, "and from doing business in the state of New
York, and to vacate, annul, and set aside the certificate procured from
the Secretary of State, pursuant to section 15 of the general corpora-
tion law, authorizing said company to do business in the state of New
York."
The petitioner set forth the names of 28 persons, and alleged that
the testimony of each was "material and necessary to the establish-
ment of the unlawful agreement, arrangement, or combination whereby
the above-described monopoly in the sale of ice was created and es-
tablished and has been maintained." The remaining allegations of
the petition show the relations of some of the proposed witnesses to
the American Ice Company, the opportunity of others for knowing
about the combination, and of others still for knowing about other
companies in the city of New York whose business had been absorbed
by the constituent companies, and through them by the American Ice
Company. It is also alleged that the principal office of the American
Ice Company is located in the city of New York, and the source of
the petitioner's knowledge and the grounds of his belief as to the
*
!
Ch. 5)
231
HEARING AND EVIDENCE.
k
truth of the allegations of the petition are briefly stated. The re-
lief asked is that an order be made directing the persons named
to appear before a referee, "and answer such questions as may be
put to them, or any of them, and produce all papers, documents,
and books concerning the aforesaid illegal arrangement, agreement,
or combination."
Upon the presentation of this petition the justice made an order
requiring Charles W. Morse, who is president of the American Ice
Company, and the other persons named, to appear before a referee for
the purpose of the examination provided for by the act. Mr. Morse was
also directed to produce "all contracts and agreements of the American
Ice Company with" 12 other ice companies, as well as certain other
contracts relating to the purchase of ice and the plants, business, and
good will of ice dealers in the city of New York. He moved to
vacate the order, and thus the questions arose that we are called upon
to review.
The validity of the procedure authorized by the act, however, is
challenged as in violation of both the state and federal Constitutions.
The first and second questions certified involve the proposition that
the statute imposes other than judicial duties upon a judicial officer,
and that for this reason the provisions relating to the procedure are
unconstitutional and void.
While the performance of administrative duties cannot be imposed
by the Legislature upon the Supreme Court as such, except as to
inatters incidental to the exercise of judicial powers, yet for many
years, and without serious question, acts have been passed conferring
upon the justices of that court authority, out of term, to perform a
variety of functions, administrative or semiadministrative in character,
such as the approval of certificates of incorporation, the acknowledg-
ment of conveyances, the solemnization of marriages, the appointment
of commissioners of jurors, the investigation of the financial affairs of
villages, and the like. 2 Rev. St. p. 755, § 4; Laws 1847, p. 319, $ 1;
Laws 1892, c. 682, § 64; Id. c. 685; Laws 1897, c. 194; Id., c. 430.
A distinction seems to prevail in practice between powers conferred
upon a court and those conferred upon the judges thereof.
The duties of the justice to whom application was made for the
order in question were judicial in form. He was not required to grant
it as a matter of course, although the language used is mandatory upon
its face, as it was in Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. 613,
yet we declared that: “While it is said in section 873, Code Civ. Proc.,
that the judge ‘must grant an order when an affidavit conforming to
the requirements of the previous section is presented to him, yet we do
not think that the language is absolutely mandatory, and that it was
intended to deprive the judge of all discretion.
Where the
judge can see that the examination is sought merely for annoyance or
for delay, and that it is not in fact necessary and material, he ought
*
*
232
(Part 1
ADMINISTRATIVE POWER AND ACTION.
*
not to be required, and cannot absolutely be required, to make the
order:"'
The expressions in the statute, "it shall be the duty of the jus-
tice
to grant such application," and "the order shall be
granted by the justice," do not deprive him of the power to decide
whether, upon the facts alleged, the order should be granted. It was
his duty to consider the allegations of the petition, and decide whether
they made out a case pursuant to the statute, and authorized an order
of examination according to its provisions. It was necessary for him
to be satisfied judicially that the Attorney General had, in good faith,
determined to commence an action, and whether the testimony of the
persons named was material and necessary in connection with that
action. The statute is not satisfied by a simple statement of the At-
torney General in his petition that he is informed and believes that the
testimony of such persons is material and necessary, but he must
show how and why it is material and necessary. This involves the
general nature and object of the action that he has determined to
bring. A determination to bring an action, indefinite and undefined,
is not what the Legislature contemplated, but one the general char-
acter of which is described sufficiently to show that it is founded
upon the statute as well as upon probable cause, and that the testimony
of the witnesses will be material and necessary therein. Thus the jus-
tice is called upon to exercise the judicial function of deciding wheth-
er the application confornis to the statute as thus construed, the same
as is required of him when an application is made for an order of
arrest, a warrant of attachment, or any other provisional remedy.
His duty is not merely clerical, but requires the exercise of judg-
ment. When a writ of habeas corpus is applied for, the statute
says that the judge “must grant it without delay," and even inflicts a
penalty for failure to comply with the command, yet it is his duty to
refuse the writ unless the facts required by the code are sufficiently
set forth. Code Civ. Proc. $ 2020. In all these cases the judge is
required to act judicially, for he must decide the question of law
whether the facts alleged make out a case under the statute.
But, while the power committed to the justice is judicial in form,
unless it is judicial in substance, and has a judicial purpose to ac-
complish, the duty is of an administrative character only. Since the
object of the statute, so far as it relates to procedure, is not expressly
stated, it must be inferred from the title and the provisions of the act.
The title declares that the object of the procedure is to enable the
Attorney General to "secure testimony" in relation to violations of the
act, and the text indicates the same purpose. The statute is remedial,
and it is the duty of courts to so construe it as to "suppress the mis-
chief and advance the remedy." As no notice to the proposed adverse
party is required, and no opportunity is expressly afforded for cross-
examination, the testimony cannot be read in evidence upon the trial
of the action. The taking of testimony for use upon a trial is part
Ch. 5)
233
HEARING AND EVIDENCE.
*
of the trial itself, so far as the constitutional provision allowing the
right to counsel and requiring due process of law is concerned. No
judgment can be pronounced, or determination made, based wholly
or in part upon such testimony, which is not reported to the judge or
court for judicial action.
The only use, so far as we can 110w see, that can be made of the
testimony, is to enable the Attorney General either to prepare his com-
plaint or prepare for trial. The former is a judicial purpose, and
is clearly within the power of the Legislature to intrust to the court or
its judges. Glenney v. Stedwell, 64 N. Y. 120. It aids directly in
framing the issues which the court is to try, tends to prevent the delay
resulting from amendments of the complaint, and thus advances the
remedy to the end which is to be effected by the judgment. In re
Çooper, 22 N. Y. 67, 84. The other use suggested involves a serious
question. It is urged that an inquisition into one's private affairs, the
compulsory production of his books and papers and the disclosure of
his business secrets, is an invasion of personal liberty as guarantied
by the Constitution. It is insisted that a proceeding which ends in
nothing, that establishes no right and prevents no wrong, either di-
rectly or indirectly, is not of a judicial nature.
Through its legislative department the state can examine witnesses
with reference to prospective legislation, and why can it not, through
its judicial department, under an appropriate statute, examine wit-
nesses in order to establish in court rights belonging to all its citizens,
even if the testimony is not to be read in court, but is to be used for a
purpose incidental to the trial?
The procedure authorized is in the nature of a statutory bill of
discovery. The ancient remedy of enforcing discovery was devised
by the courts to compel a party in a pending action at law to dis-
cover and set forth upon oath in an independent action every fact and
circumstance within his knowledge, information, or belief material to
the plaintiff's case. 2 Story, Eq. Jur. (13th Ed.) 811; Adams, Eq.
(8th Ed.) 1. A bill of discovery was never brought to a hearing, and
there could be no decree on matters set forth therein, for its sole object
was to obtain testimony for use in another action. 6 Enc. Pl. & Prac.
781. It would lie even if the other action had not been brought, pro-
vided there was an intention to bring it. Stebbins v. Cowles, 10 Conn.
408. The process of thus obtaining testimony has never been regarded
as an unauthorized interference with personal liberty, but as due
process of law. If the courts themselves, simply of their own motion,
can establish such a system, cannot the Legislature create a procedure
similar in nature, even if it is more drastic in effect ?
It is true that testimony thus taken could be read in evidence upon
the trial of the other action, but is this essential to a judicial purpose,
or does due process of law require that testimony cannot be taken by a
judge, unless it is to be read in court, provided the sovereign power
needs it in order to enforce its own laws through judicial proceedings?
*
234
(Part 1
ADMINISTRATIVE POWER AND ACTION.
Is the state itself, when a litigant, not to establish a mere right of
property, but a cause of public justice, limited by its own constitution
to the procedure that ordinarily prevails in controversies between in-
dividuals, or has it the power through its legislature to authorize testi-
mony to be taken in order to aid its attorney general in attempting
to enforce its policy as a political community and to promote the gen-
eral welfare by proceedings in its courts of justice? Is there no power
in government to examine a witness for this purpose? The question is
not whether the exercise of the power is wise or discreet, but whether
the power exists. We are not called upon to decide whether the thing
should be done, but whether it can be done; and care should be taken
in making the decision not to hamper the state in the enforcement of
law.
We think the duties imposed by chapter 690 of the Laws of 1899
upon justices of the Supreme Court are of a judicial character, because
they are incidental to a judicial proceeding; that said statute does not
infringe upon personal liberty without due process of law, and does
not come within the express or implied prohibition of the state or
federal Constitutions. The first question certified should therefore, be
answered in the negative, and the second in the affirmative.
The order of the Appellate Division should be reversed, and that
of the Special Term affirmed, with costs, and the questions certified
answered as indicated in the opinion.
BARTLETT and O'BRIEN, JJ., dissent.
*
* 32
*
*
*
32 The court then refers to Interstate Commerce Commission v. Brimson,
154 U. S. 447, 14 Sup. Ct. 1125, 38 L. Ed. 1047 (1894), ante, p. 222.
Ch.6)
235
ADMINISTRATIVE EXECUTION.
CHAPTER VI
ADMINISTRATIVE EXECUTION
SECTION 29.-DISTRESS WARRANTS
DEN ex den. MURRAY et al. v. HOBOKEN LAND &
IMPROVEMENT CO.
(Supreme Court of the United States, 1855. 18 How. 272, 15 L. Ed. 372.)
Mr. Justice CURTIS delivered the opinion of the court.1
This case comes before us on a certificate of division of opinion of
the judges of the Circuit Court of the United States for the District of
New Jersey. It is an action of ejectment, in which both parties claim
title under Samuel Swartwout-the plaintiffs, under the levy of an ex-
ecution on the 10th day of April, 1839, and the defendants, under
a sale made by the marshal of the United States for the District of
New Jersey, on the 1st day of June, 1839, by virtue of what is de-
nominated a distress warrant, issued by the solicitor of the treasury
under the act of Congress of May 15, 1820, entitled "An act providing
for the better organization of the Treasury Department." 2
This act
1 Only a portion of this case is printed.
As to distress warrants for nonpayment of personal taxes, a very common
practice, see Cooley on Taxation, p. 438. As to enforcement of payment of
taxes by arrest, see Palmer v. McMahon, 133 U. S. 660, 10 Sup. Ct. 324, 33
L. Ed. 772 (1890).
2 The provisions of the act of May 15, 1820, bearing upon the question be-
fore the court, appear in the Revised Statutes as follows:
“Sec. 3625. Whenever any collector of the revenue, receiver of public money,
or other officer who has received the public money before it is paid into the
treasury of the United States, fails to render his account, or pay over the
Same in the manner or within the time required by law, it shall be the duty
of the proper auditor to cause to be stated the account of such officer, ex-
hibiting truly the amount due to the United States, and to certify the same
to the solicitor of the treasury, who shall issue a warrant of distress against
the delinquent officer and his sureties, directed to the marshal of the district
in which such officer and his sureties reside. Where the officer and his sure-
ties reside in different districts, or where they, or either of them, reside in a
district other than that in which the estate of either may be, which it is in-
tended to take and sell, then such warrant shall be directed to the marshals
of such districts respectively.” (U. S. Comp. St. 1907, p. 2418.)
"Sec. 3627. The marshal authorized to execute any warrant of distress
shall, by himself or by his deputy, proceed to levy and collect the sum re-
maining due, by distress and sale of the goods and chattels of such delinquent
officer; having given ten days' previous notice of such intended sale, by af-
fixing an advertisement of the articles to be sold at two or more public places
in the town and county where the goods or chattels were taken, or in the town
236
(Part 1
ADMINISTRATIVE POWER AND ACTION.
having provided, by its first section, that a lien for the amount due
should exist on the lands of the debtor from the time of the levy and
record thereof in the office of the District Court of the United States
for the proper district, and the date of that levy in this case being
prior to the date of the judgment under which the plaintiffs' title
was made, the question occurred in the Circuit Court, "whether the
said warrant of distress in the special verdict mentioned, and the pro-
ceedings thereon and anterior thereto, under which the defendants
claim title, are sufficient, under the Constitution of the United States
and the law of the land, to pass and transfer the title and estate of the
said Swartwout in and to the premises in question, as against the
lessors of the plaintiff." Upon this question, the judges being of op-
posite opinions, it was certified to this court, and has been argued
by counsel.
No objection has been taken to the warrant on account of any defect
or irregularity in the proceedings which preceded its issue. It is not
denied that they were in conformity with the requirements of the act
of Congress. The special verdict finds that Swartwout was collector
of the customs for the port of New York for eight years before the
29th of March, 1838; that, on the 10th of November, 1838, his ac-
count, as such collector, was audited by the first auditor, and certified
by the first comptroller of the treasury; and for the balance thus
found, amounting to the sum of $1,374,119.65, the warrant in question
was issued by the solicitor of the treasury. Its validity is denied
or county where the owner of such goods or chattels may reside. If the goods
and chattels be not sufficient to satisfy the warrant, the same may be levied
upon the person of such officer, who may be committed to prison, there to re-
main until discharged by due course of law." (U. S. Comp. St. 1907, p. 2419.)
"Sec. 3630. For want of goods and chattels of a delinquent officer, or his
sureties, sufficient to satisfy any warrant of distress issued pursuant to the
foregoing provisions, the lands, tenements, and hereditaments of such officer
and his sureties, after being advertised for at least three weeks in not less
than three public places in the county or district where such real estate is
situate, before the time of sale, shall be sold by the marshal of such district
or his deputy.” (U. S. Comp. St. 1907, p. 2419).
“Sec. 3636. Any person who considers himself aggrieved by any warrant
of distress issued under the foregoing provisions may prefer a bill of com-
plaint to any district judge of the United States, setting forth therein the
nature and extent of the injury of which he complains; and thereupon the
judge may grant an injunction to stay proceedings on such warrant alto-
gether, or for so much thereof as the nature of the case requires. But 10
injunction shall issue till the party applying for it gives bond, with sufficient
security, in a sum to be prescribed by the judge, for the performance of such
judgment as may be awarded against him; nor shall the issuing of such injunc-
tion in any manner impair the lien produced by the issuing of the warrant.
And the same proceedings shall be had on such injunction as in other cases,
except that no answer shall be necessary on the part of the United States; and
if, upon dissolving the injunction, it appears to the satisfaction of the judge
that the application for the injunction was merely for delay, the judge may
add to the lawful interest assessed on all sums found due against the com-
plainant such damages as, with such lawful interest, shall not exceed the
rate of ten per centum a year. Such injunction may be granted or dissolved
by the district judge either in or out of court." (U. S. Comp. St. 1907, p.
2421.)
Ch. 6)
237
ADMINISTRATIVE EXECUTION.
by the plaintiffs, upon the ground that so much of the act of Congress
as authorized it, is in conflict with the Constitution of the United
States,
In support of this position, the plaintiff relies on that part of the
first section of the third article of the Constitution which requires
the judicial power of the United States to be vested in one Supreme
Court and in such inferior courts as Congress may, from time to time,
ordain and establishi, the judges whereof shall hold their offices during
good behavior, and shall, at stated times, receive for their services
a compensation, which shall not be diminished during their continuance
in office. Also, in the second section of the same article, which de-
clares that the judicial power shall extend to controversies to which the
United States shall be a party.
It must be admitted that, if the auditing of tliis account, and the
ascertainment of its balance, and the issuing of this process, was an
exercise of the judicial power of the United States, the proceeding
was void; for the officers who performed these acts could exercise no
part of that judicial power. They neither constituted a court of the
United States, 11or were they, or either of them, so connected with any
such court as to perform even any of the ministerial duties which arise
out of judicial proceedings.
The question, whether these acts were an exercise of the judicial
power of the United States, can best be considered under another
inquiry, raised by the further objection of the plaintiff, that the effect
of the proceedings authorized by the act in question is to deprive the
party, against whom the warrant issues, of his liberty and property,
"without due process of law," and, therefore, is in conflict with the
fifth article of the amendments of the Constitution.
Taking these two objections together, they raise the questions
whether, under the Constitution of the United States, a collector of
the customs, from whom a balance of account has been found to be
due by accounting officers of the treasury, designated for that purpose
by law, can be deprived of his liberty, or property, in order to enforce
payment of that balance, without the exercise of the judicial power of
the United States, and yet by due process of law, within the meaning
of those terins in the Constitution; and if so, then, secondly, whether
the warrant in question was such due process of law.
That the warrant now in question is legal process is not denied.
It was issued in conformity with an act of Congress. But is it "due
process of law”? The Constitution contains no description of those
processes which it was intended to allow or forbid. It does not even
declare what principles are to be applied to ascertain whether it be
due process. It is manifest that it was not left to the legislative
power to enact any process which might be devised. The article is
a restraint on the legislative as well as on the executive and judicia!
powers of the government, and cannot be so construed as to leave
Congress free to make any process "due process of law” by its mere
*
*
*
238
(Part 1
ADMINISTRATIVE POWER AND ACTION.
*
will. To what principles, then, are we to resort to ascertain that pro-
cess, enacted by Congress, is due process? To this the answer must be
twofold. We must examine the Constitution itself to see whether
this process be in conflict with any of its provisions. If not found
to be so, we must look to those settled usages and modes of proceeding
existing in the common and statute law of England, before the
emigration of our ancestors, and which are shown not to have been
unsuited to their civil and political condition by having been acted
on by them after the settlement of this country. We apprehend there
has been no time, since the establishment of the English monarchy,
when there has not been, by the law of the land, a summary method
for the recovery of debts due to the Crown, and especially those due
from receivers of the revenues.
It is certain that this diversity in "the law of the land” between
public defaulters and ordinary debtors was understood in this country,
and entered into the legislation of the colonies and provinces, and more
especially of the states, after the Declaration of Independence and be-
fore the formation of the Constitution of the United States. Not only
was the process of distress in nearly or quite universal use for the
collection of taxes, but what was generally termed a warrant of
distress, running against the body, goods, and chattels of defaulting
receivers of public money, was issued to some public officer, to whom
was committed the power to ascertain the amount of the default, and
by such warrant proceed to collect it. Without a wearisome repetition
of details, it will be sufficient to give one section from the Mas-
sachusetts act of 1786: "That if any constable or collector, to whom
any tax or assessment shall be committed to collect, shall be remiss and
negligent of his duty, in not levying and paying unto the treasurer
and receiver general such sum or sums of money as he shall from
time to time have received, and as ought by him to have been paid
within the respective time set and limited by the assessor's warrant,
pursuant to law, the treasurer and receiver general is hereby empow-
ered, after the expiration of the time so set, by warrant under his hand
and seal, directed to the sheriff or his deputy, to cause such sum and
sums of money to be levied by distress and sale of such deficient con-
stable or collector's estate, real and personal, returning the overplus, if
any there be; and, for want of such estate, to take the body of such
constable or collector, and imprison him until he shall pay the same;
which warrant the sheriff or his deputy is hereby empowered and re-
quired to execute accordingly.” Then follows another provision, that
if the deficient sum shall not be made by the first warrant, another
shall issue against the town; and if its proper authorities shall fail
to take the prescribed means to raise and pay the same, a like war-
rant of distress shall go against the estates and bodies of the assessors
of such town. Laws Mass. vol. 1, p. 266. Provisions not distinguish-
able from these in principle may be found in the acts of Connecticut,
Revision 1784, p. 198; of Pennsylvania, 1782, 2 Laws, Pa., 13; of
Ch. 6)
239
ADMINISTRATIVE EXECUTION.
South Carolina, 1788, 5 Stat. S. C., 55; New York, 1788, 1 Jones &
Varick's Laws, 34. See, also, 1 Henning's St. Va., 319, 343; 12 Hen-
ning's St. Va., 562; Laws Vt. 1797, 1800, 340.
Since the formation of the Constitution of the United States, other
states have passed similar laws. See Union Towboat Company v.
Bordelon, y La. Ann. 192. Congress, from an early period, and in
repeated instances, has legislated in a similar manner. By the fifteenth
section of the “Act to lay and collect a direct tax within the United
States," of July 14, 1798, the supervisor of each district was authorized
and required to issue a warrant of distress against any delinquent
collector and his sureties, to be levied upon the goods and chattels, and
for want thereof upon the body of such collector; and, failing of
satisfaction thereby, upon the goods and chattels of the sureties. 1
Stat. 602. And again, in 1813 (3 Stat. 33, § 28) and 1815 (3 Stat.
177, § 33), the comptroller of the treasury was empowered to issue
a similar warrant against collectors of the customs and their sureties.
This legislative construction of the Constitution, commencing so early
in the government, when the first occasion for this inanner of pro-
ceeding arose, continued throughout its existence, and repeatedly acted
on by the judiciary and the executive, is entitled to no inconsiderable
weight upon the question whether the proceeding adopted by it was
"due process of law.” Prigg v. Pennsylvania, 16 Pet. 621, 10 L. Ed.
1060; United States v. Nourse, 9 Pet. 8, 9 L. Ed. 31; Randolph's
Case, 2 Brock. 447, Fed. Cas. No. 11,558; Nourse's Case, 4 Cranch,
C. C. 151, Fed. Cas. No. 15,901; Bullock's Case, cited 6 Pet. 485,
note.
Tested by the common and statute law of England prior to the emi-
gration of our ancestors, and by the laws of many of the states at the
time of the adoption of this amendment, the proceedings authorized by
the act of 1820 cannot be denied to be due process of law, when
applied to the ascertainment and recovery of balances due to the
government from a collector of customs, linless there exists in the
Constitution some other provision which restrains Congress from
authorizing such proceedings. For, though “due process of law"
generally implies and includes, actor, reus, judex, regular allegations,
opportunity to answer, and a trial according to some settled course of
judicial proceedings (2 Inst. 47, 50; Hoke v. Henderson, 15 N. C.
15, 25 Am. Dec. 677; Taylor v. Porter, 4 Hill [N. Y.) 146, 40 Am.
Dec. 274; Vanzant v. Waddel, 2 Yerg. [Tenn.) 260; State Bank v.
Cooper, 2 Yerg. [Tenn.] 599, 24 Am. Dec. 517; Jones's Heirs v.
Perry, 10 Yerg. [Tenn.] 59, 30 Am. Dec. 430; Greene v. Briggs, 1
Curt. 311, Fed. Cas. No. 5,764), yet this is not universally true. There
may be, and we have seen that there are, cases, under the law of
England after Magna Charta, and as it was brought to this country
and acted on here, in which process, in its nature final, issues against
- the body, lands, and goods of certain public debtors without any such
trial; and this brings us to the question, whether those provisions of
240
ADMINISTRATIVE POWER AND ACTION.
(Part 1
*
*
*
the Constitution which relate to the judicial power are incompatible
with these proceedings?
The power to collect and disburse revenue, and to make all laws
which shall be necessary and proper for carrying that power into
effect, includes all known and appropriate means of effectually collect-
ing and disbursing that revenue, unless some such means should be
forbidden in some other part of the Constitution. The power has
not been exhausted by the receipt of the money by the collector. Its
purpose is to raise money and use it in payment of the debts of the
government, and, whoever may have possession of the public money,
until it is actually disbursed, the power to use those known and ap-
propriate means to secure its due application continues.
As we have already shown, the means provided by the act of 1820
do not differ in principle from those employed in England froin remote
antiquity-and in many of the states, so far as we know without
objection--for this purpose, at the time the Constitution was formed.
It may be added that probably there are few governments which do
or can permit their claims for public taxes, either on the citizen or the
officer employed for their collection or disbursement, to become sub-
jects of judicial controversy, according to the course of the law of the
land.
Imperative necessity has forced a distinction between such
claims and all others, which has sometimes been carried out by sum-
mary methods of proceeding, and sometimes by systems of fines and
penalties, but always in some way observed and yielded to.
It is necessary to take into view some settled rules. Though gen-
erally, both public and private wrongs are redressed, through judi-
cial action, there are more summary extrajudicial remedies for both.
An instance of extrajudicial redress of a private wrong is the re-
capture of goods by their lawful owner; of a public wrong, by a pri-
vate person, is the abatement of a public nuisance; and the recovery
of public dues by a summary process of distress, issued by some public
officer authorized by law, is an instance of redress of a particular
kind of public wrong, by the act of the public through its authorized
agents. There is, however, an important distinction between these.
Though a private person inay retake his property, or abate a nui-
sance, he is directly responsible for his acts to the proper judicial
tribunals. His authority to do these acts depends not merely on the
law, but upon the existence of suclı facts as are, in point of law,
sufficient to constitute that authority, and he may be required, by
an action at law, to prove those facts; but a public agent, who acts
pursuant to the command of a legal precept, can justify his act by the
production of such precept. He cannot be made responsible in a
judicial tribunal for obeying the lawful command of the government;
and the government itself, which gave the command, cannot be sued
without its own consent.
At the same time there can be no doubt that the mere question,
whether a collector of the customs is indebted to the United States,
*
Ch. 6)
241
ADMINISTRATIVE EXECUTION.
inay be one of judicial cognizance. It is competent for the United
States to sue any of its debtors in a court of law. It is equally clear
that the United States may consent to be sued, and may yield this
consent upon such terms and under such restrictions as it may
think
just. Though both the marshal and the government are exempt from
suit for anything done by the former in obedience to legal process, still
Congress may provide by law that both, or either, shall, in a particu-
lar class of cases, and under such restrictions as they may think proper
to impose, come into a court of law or equity and abide by its deter-
mination. The United States may thus place the government upon the
same ground which is occupied by private persons who proceed to take
extrajudicial remedies for their wrongs, and they may do so to such
extent, and with such restrictions, as may be thought fit.
When, therefore, the act of 1820 enacts that, after the levy of the
distress warrant has been begun, the collector may bring before a dis-
trict court the question whether he is indebted as recited in the
warrant, it simply waives a privilege which belongs to the government,
and consents to make the legality of its future proceedings dependent
on the judgment of the court. As we have already stated in case of a
private person, every fact upon which the legality of the extrajudicial
remedy depends may be drawn in question by a suit against him. The
United States consents that this fact of indebtedness may be drawn
in question by a suit against them. Though they might have withheld
their consent, we think that, by granting it, nothing which may not
be a subject of judicial cognizance is brought before the court.
To avoid misconstruction upon so grave a subject, we think it prop-
er to state that we do not consider Congress can either withdraw from
judicial cognizance any matter which, from its nature, is the subject
of a suit at the common law, or in equity, or admiralty; nor, on the
other hand, can it bring under the judicial power a matter which, from
its nature, is not a subject for judicial determination. At the same
time there are matters, involving public rights, which may be presented
in such form that the judicial power is capable of acting on them, and
which are susceptible of judicial determination, but which Congress
inay or may not bring within the cognizance of the courts of the United
States, as it may deem proper. Equitable claims to land by the inhab-
itants of ceded territories form a striking instance of such a class of
cases; and as it depends upon the will of Congress whether a remedy
in the courts shall be allowed at all, in such cases, they may regulate it
and prescribe such rules of determination as they may think just and
needful.
To apply these principles to the case before us, we say that, though
a suit may be brought against the marshal for seizing property under
such a warrant of distress, and he may be put to show his justification,
yet the action of the executive power in issuing the warrant, pursuant
to the act of 1820, passed under the powers to collect and disburse the
Fr.ADM. LAW -16
*
*
242
(Part 1
ADMINISTRATIVE POWER AND ACTION.
revenue granted by the Constitution, is conclusive evidence of the facts
recited in it, and of the authority to make the levy; that though no
suit can be brought against the United States without the consent of
Congress, yet Congress may consent to have a suit brought, to try
the question whether the collector be indebted, that being a subject
capable of judicial determination, and may empower a court to act on
that determination, and restrain the levy of the warrant of distress
within the limits of the debt judicially found to exist.
It was further urged that, by thus subjecting the proceeding to the
determination of a court, it did conclusively appear that there was no
such necessity for a summary remedy, by the action of the executive
power, as was essential to enable Congress to authorize this mode of
proceeding.
But it seems to us that the just inference from the entire law is
that there was such a necessity for the warrant and the commence-
ment of the levy, but not for its completion, if the collector should
interpose, and file his bill and give security. The provision that he may
file his bill and give security, and thus arrest the summary proceedings,
only proves that Congress thought it not necessary to pursue them,
after such security should be given, until a decision should be made
by the court. It has no tendency to prove that they were not, in the
judgment of Congress, of the highest necessity under all other circum-
stances; and of this necessity Congress alone is the judge.
* 3
3 Accord: Weimer v. Bunbury, 30 Mich. 201 (1874), under Comp. Laws
Mich. 1871, § 1029. The provision is not to be found in the revision of the
tax law of 1885, No. 153.
See, also, Eve v. State, 21 Ga. 50 (1857); Gwin v. Barton, 6 How. 7, 12
L. Ed. 321 (1848).
Laws Ill. 1855, Auditor's Report to the General Assembly: "The Constitu-
tionality of so much of the revenue law as authorizes the auditor to issue
stress warrants, with orders to sell the property, of delinquent collectors, etc.,
bas been questioned, and as it has but little, if any, advantage over the regir-
lar mode of proceeding in the courts against such collectors, I respectfully
suggest its repeal.” The provision was omitted from the revenue law of
1872. See, now, Illinois Revenue Act (Hurd's Rev. St. 1910, c. 120) $$ 245,
259.
See Century Digest, Taxation, $$ 1095–1101.
Administrative imposition of penalties for fraudulent evasion of taxes, see
Doll v. Evans, Hed. Cas. No. 3969 (1872). People v. Nat. Bank, etc., 123 Cal.
53, 55 Pac. 685, 45 L. R. A. 747, 69 Am. St. Rep. 32 (1898); Boyer v. Jones,
14 Ind. 354 (1860); McCormick v. Fitch, 14 Minn. 252, Gil. 185 (1869).
Tariff Bill 1846, § 9, provided that in all cases in which the appraisers
should suspect that goods were fraudulently undervalued the government
might seize the goods, and sell them at public auction, and after paying the
consignee the declared value with 5 per cent. in addition, cover the balance in-
to the treasury. This passed the House, but, being denounced as unconsti-
tutional, was on motion of Webster, struck out by the Senate. Stanwood,
American Tariff Controversies, II, 79.
Ch. 6)
243
ADMINISTRATIVE EXECUTION.
!
SECTION 30.-ABATEMENT OF NUISANCES-RECOGNI-
TION AND VALIDITY OF POWER
NEFF V. PADDOCK et al.
(Supreme Court of Wisconsin, 1970. 26 Wis. 546.)
Trespass quare clausum for the removal of plaintiff's fence. De-
fense, that the locus was part of a well-known and long-traveled
highway, upon which plaintiff had willfully built his fence, and that
defendants removed it by direction of the town board of supervisors,
doing no unnecessary damage.
COLE, J.* *
The court in effect instructed the jury that if
they found that the fence erected by the plaintiff in the highway ex-
tended more than six feet from the East line of the road into the
same, so as to endanger or inconvenience travel thereon, then it was
the duty of the supervisors to cause the fence to be removed, doing no
unnecessary damage, and that such action on their part was lawful.
The plaintiff removed his fence into the middle of the highway, and by
so doing committed a nuisance. It was the duty of the supervisors to
cause the fence to be removed summarily. The public have the right
to an uninterrupted passage along the highway for themselves and
carriages; and it is the clear legal duty of the supervisors to cause all
obstructions to be removed which seriously interfere with or impede
the exercise of this right. It would be a most serious defect in the law
if in the case of a palpable obstruction of a highway, which interrupts
its use and discommodes and endangers the safety of travelers, the
public authorities had not the right to remove it without delay. We
do not think that such is the law in this state. Lemon v. Haydon,
13 Wis. 159; Wyman v. State, Id. 663; Wetmore v. Tracy, 14 Wend.
(N. Y.) 250, 28 Am. Dec. 525.
*
* 5
4 Only a portion of the opinion of Cole, J., is printed.
5 Wetmore v. Tracy, 14 Wend. (N. Y.) 250, 28 Am. Dec. 525 (1835), was a
case of abatement by private individuals. The doctrine of the earlier New
York cases (Hart v. Mayor of Albany, 9 Wend. [N. Y.) 589, 24 Am. Dec. 165
(1832]; Meeker v. Van Rensselaer, 15 Wend. [N. Y.] 397 [1836]), that any in-
dividual may abate a public nuisance, is changed by Ft. Plain Bridge Co.
V. Smith, 30 N. Y. 44, 62 (1864), which holds that no one has the right to
abate a public nuisance, unless he has himself sustained some damages not
sustained by the rest of the community.
Blackstone, bk. 3, c. 1, says: “If a new gate be erected across the public
highway, which is a common nuisance, any of the king's subjects passing that
way may cut it down and destroy it," and "such nuisance may be abated-
that is, taken away or reinoved—by the party aggrieved thereby, so as he
commits no riot in the doing of it.”
So especially there is no common-law right of summary abatement by in-
dividuals, where the nuisance consists only in the violation of the law, as,
e. g., the illegal sale of liquor, see Brown v. Perkins, 12 Gray (Mass.) 89
244
(Part 1
ADMINISTRATIVE POWER AND ACTION.
HUBBELL v. GOODRICH et al.
(Supreme Court of Wisconsin, 1875. 37 Wis. 84.)
Appeal from the circuit court for Sauk county.
This action is to recover damages for an alleged trespass by the
defendants in entering upon the lands of the plaintiff and taking down
and removing a fence. The answer avers that the locus in quo is a
public highway; that the defendant Goodrich, who was then over-
seer of highway in the road district in which such lands are situated,
entered upon the plaintiff's said land, and, with the assistance of the
other defendant, removed such fence out of the highway, doing no un-
necessary damage; and that he removed the fence by order of the
supervisors of the proper town.
The testimony given on the trial of the action tends to prove these
averments of the answer, and also tends to prove that the fence was
an obstruction to travel on the alleged highway.
The jury found for the defendant, a motion for a new trial was
denied, and judgment against the plaintiff for costs was duly entered.
The plaintiff appealed from such judgment.
LYON, J. 1. The supervisors are charged by law with the care of
the highways in their respective towns, and it is their duty to give
directions for repairing the same, and from time to time to require
overseers of highways therein to perform their duties. Rev. St. c. 19,
$1 (Tayl. St. p. 477, § 1). The supervisors have power, and it is
their duty, to cause the summary removal of any public nuisance found
in any highway under their jurisdiction. Neff v. Paddock, 26 Wis.
546. And to this end they may require the overseer in whose district
it is located so to remove the same.
Any obstruction in or encroachment upon a highway, which unneces-
sarily impedes or incommodes the lawful use of such highway by the
public, is a public nuisance, and may be sunimarily abated. Angell
on Highways, 223, 274.
2. The supervisors also have the power, as we think, to cause the
summary removal of any structure unlawfully and willfully placed
within the limits of a highway by any person, although the same is not
a public nuisance. As to the signification of the word "willfully,"
as here used, see State v. Preston, 34 Wis. 675.
(1858); Earp v. Lee, 71 Ill. 192 (1873); Gray v. Ayres, 7 Dana (Ky.) 375,
32 Am. Dec. 107 (1838).
Where the right of any individual to abate a nuisance is recognized, it
may be exercised, a fortiori, by an officer. Fields v. Stokley, 99 Pa. 306, 44
Am. Rep. 109 (1882); Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830
(1885).
But such abatement must be unaccompanied by a breach of the peace. Rex
V. Rosewell, 2 Salk. 459 (1699); Day y. Day, 4 Md. 262 (1853).
See F. J. Goodnow, Summary Abatement of Nuisances, Columbia Law Re-
view, II, 203.
Ch.6)
245
ADMINISTRATIVE EXECUTION.
3. But where the obstruction or encroachment is not a public
nuisance, and was not willfully placed in the highway (as where it
was placed there by inadvertence or carelessness, without any in-
tention to obstruct the highway), we are of the opinion that the
supervisors have no power to cause the summary removal thereof.
The remedy given by the statute must be resorted to in such a case.
Rev. St. c. 19, $$ 102 to 108 (Tayl. St. p. 508, $$ 138 to 144);
Wyman v. State, 13 Wis. 663.
The learned circuit judge instructed the jury that the defendants
were not liable for removing such portion of the fence as wąs in a
public highway, and that if all of the fence removed by them was
within the highway the defendants were entitled to a verdict. This
instruction is not qualified in any manner, and it entirely ignores the
principle last above stated. Under it the action might be defeated even
though the fence was not a public nuisance, and was not willfully
placed there by the plaintiff; in which case, as we have seen, the
town authorities had no power to remove it summarily. We do not
know but the verdict was predicated upon precisely such a state of
facts; for the testimony does not conclusively prove either that the
fence was a public nuisance, or that it was willfully placed there by the
plaintiff.
It was error, therefore, to give the above instruction; and be-
cause the error may have injured the plaintiff, there must be another
trial.
Judgment reversed, and new trial awarded.
ek
*
*
8 The English authorities are silent as to the power of officers, such as
surveyors of highways, etc., to remove or abate nuisances, apart from stat-
ute, without judicial order or conviction. See Shaw's Parish Law, 1750.
A sheriff or constable seems to have no such power, by virtue of his of-
fice, by the common law.
The statutes were slow in granting such power. See 13 Geo. III, C. 78,
$ 12 (only after 20 days' notice), and 5 & 6 William IV, C. 50, SS 69, 73. See
2 Ell. & Bl. 748; also 57 Geo. III, C. 29 (Michel Angelo Taylor's Act, relat-
ing to London, a private act) § 65.
For American legislation, see the following:
Prov. Laws Mass. 1693–94, c. 6 (Highways):
“Section 1.
The surveyors are hereby empowered to cut down,
dig up, and remove, as well all sorts of trees, bushes, stones, fences, rails,
gates, inclosures, or other thing or things, as may any ways straighten, hurt,
hinder, or incommode the highways."
“Sec. 5. If any person
shall erect or set up any gate, rails, or
fence upon or across any highway or country road, or continue any such road
to the annoyance and incumbrance of the same (other than such as shall be
allowed by the court of quarter sessions within the county), it shall be
deemed a common nuisance, and it shall be lawful for any person or persons
to pull down and remove the same."
1 Rev. St. N. Y. 1829, p. 521 :
“Sec. 103. In every case where a highway shall have been laid out, and the
same has been or shall be encroached upon by fences,
the commis-
sioners of highways
shall, if in their opinion it be deemed neces-
sary, order such fences to be removed, so that such highway may be of the
breadth originally intended. The commissioners making the order shall cause
the same to be reduced to writing and signed. They shall also give notice
in writing to the occupant of the land, to remove such fences within sixty
*
*
*
246
(Part 1
'ADMINISTRATIVE POWER AND ACTION.
KING V. DAVENPORT, Executor.
(Supreme Court of Illinois, 1881. 98 Ill. 305, 38 Am. Rep. 89.)
Mr. Justice SHELDON delivered the opinion of the court."
The city of Jacksonville, in this state, having power, by ordinance,
to establish fire limits and to declare the building or repairing of
buildings with combustible materials within the fire limits a nui-
sance, its city council did, by ordinance, establislı fire limits, and en-
acted that any building built or repaired with other than fire-proof
material, or any roof or gutter placed on any building, the outer sur-
face of which was made with materials other than fire-proof, if within
the fire limits, and done without permission, should be deemed a nui-
sance, and that if the offender, upon reasonable notice, failed to re-
move such wooden building, or wooden part of such building, the city
marshal, upon the written direction of the mayor, should "remove or
tear down such building, or such part thereof as may be necessary."
The ordinance further provided, that the offender should be subject to
a fine of $100 for each week he failed to remove such wooden build-
ing, or wooden part thereof, and that if the city caused the removal,
the expense of the removal might be recovered of the offender. The
plaintiff's testatrix violated this ordinance by taking off an old and
out of repair shingle roof from her building, situated within the fire
limits, and putting thereon, without permission, a new shingle roof.
She failing to remove the same upon due notice, the roof was removed
by the city marshal, in conformity with the ordinance.
She brought this suit of trespass against the mayor and marshal
of the city for the removing of the roof, and dying since the bring-
ing of the suit, her executor was substituted as plaintiff. The de-
fendants justified under the ordinance, and on trial by the court, with-
out a jury, judgment was rendered against them for $175, which,
on appeal to the Appellate Court for the Third District, was affirmed,
days. Every such order and notice shall specify the breadth of the road orig-
inally intended, the extent of the encroachment, and the place or places in
which the same shall be.
“Sec. 104. If such removal shall not be made, within sixty days after the
service of such notice, the occupant to whom the notice shall be given shall
forfeit the sum of fifty cents for every day, after the expiration of that time
for which such fences shall continue unremoved."
In Wetmore v. Tracy, 14 Wend. 250, 28 Am. Dec. 525 (1835), this was held
not to supersede the common-law remedy by abatement.
The following words were added to this section by chapter 300 of Laws
of 1840:
“And the commissioners of highways may remove or cause to be removed
such encroachment, and the occupant of the premises shall pay to the com-
missioners of highways all reasonable charges therefor."
Revised Municipal Code of Chicago, § 1862:
“Sec. 1862. The commissioner of public works may direct the removal of
any article or thing whatsoever, which may encumber or obstruct any street,
avenue or alley in the city.”
7 Only a portion of the opinion of Sheldon, J., is printed.
Ch. 6)
247
ADMINISTRATIVE EXECUTION.
*
or
and then the present appeal taken, the proper certificate having been
made to authorize it.
The sole question here presented is upon the validity of the ordi-
nance.
By its charter the following legislative power is delegated to the
city of Jacksonville:
“The city council, for the purposes of guarding against the calami-
ties of fire, shall have power to prohibit the erection, placing or re-
pairing of wooden buildings within the limits prescribed by them,
without their permission, and direct and prescribe that all buildings
within the limits prescribed shall be made or constructed of fire-proof
materials, and to prohibit the rebuilding of wooden buildings; to de-
clare all dilapidated buildings to be a nuisance, and to direct the same
to be removed, repaired or abated, in such manner as they shall pre-
scribe and direct; to declare all wooden buildings which they may
deem dangerous to contiguous buildings, or in causing or promoting
fires, to be nuisances, and to require and cause the same to be re-
moved or abated in such manner as they shall prescribe.
"And, generally, to establislı such regulations for the prevention
and extinguishment of fires as the city council may deem expedient.
"The city council shall have power to pass, publish, and repeal all
ordinances, rules and police regulations, not contrary to the Con-
stitution and laws of the United States and of this state,
proper to carry into effect the powers vested by this act in the cor-
poration; to determine what shall be a nuisance and provide for the
punishment, removal and abatement of the same; and also to punish
violations of its ordinances by fines, penalties and imprisonment,” etc.
"To define and declare what shall be nuisances, and authorize and
direct the summary abatement thereof."
There is here given ample authority, we think, for the passage of
the ordinance in question.
The inquiry then must be, whether the enactment of such a law is
within the competency of legislative power. Unwholesome trades,
slaughterhouses, operations offensive to the senses, the deposit of
powder, the application of steam power to propel cars, the building
with combustible materials, and the burial of the dead, may all, says
Chancellor Kent, be interdicted by law in the midst of dense masses
of population, on the general and rational principle that every person
ought so to use his property as not to injure his neighbors, and that
private interests must be made subservient to the general interests
of the community. 2 Kent, Com. 340. The right to restrain owners
of land in towns from erecting wooden buildings, except under cer-
tain restrictions, has never been doubted, or, if it has been, the doubt
has long since been removed. Commonwealth v. Tewksbury, 11
Metc. (Mass.) 58. Such regulation is but “a just restraint of an in-
jurious use of property, which the Legislature have authority to
make." Id. 59. But the particular respect in which the ordinance
248
(Part 1
ADMINISTRATIVE POWER AND ACTION,
*
*
is assailed is that it authorizes the abatement of the nuisance sum-
marily, without any prior adjudication of the right to exercise the
power.
The summary abatement of nuisances is a remedy which has ever
existed in the law, and its exercise is not regarded as in conflict with
constitutional provisions for the protection of the rights of private
property. Blackstone, in his classification of remedies by the act of
a party, says: "The fourth species of remedy by the mere act of the
party injured is the abatement or removal of nuisance" (3 Black.
Com. 5), and that "the reason wliy the law allows this private and
summary method of doing one's self justice is because injuries of
this kind, which obstruct or annoy such things as are of daily con-
venience for use, require an immediate remedy, and cannot wait the
slow progress of the ordinary forms of justice."
There can be no doubt, it seems to us, that the ordinance in question
was a police regulation, proper, and made in good faith, "for the
purpose of guarding against the calamities of fire," in a populous
neighborhood; and we must regard it as an entirely reasonable reg-
ulation. There is no more frequent or admittedly proper exercise
of the police power than that of the prohibition of the erection of
buildings of combustible materials in the populous part of a town,
and the only means of making such prohibition effectual is by sum-
mary abatement. Every moment's delay in the removal of the nui-
sance is constant exposure to danger. Before any judicial inquiry
and hearing could be liad in the matter, the whole evil sought to be
guarded against might be produced.
The imposition of a penalty would but punish the offender; it
would not remove the source of danger. This latter is the thing
which the necessity of the case requires, and immediate abatement
is the only competent remedy. It is admitted by appellee's counsel,
an admission they are compelled to make under the law, that if thie
erection were a nuisance at common law the city authorities might
abate it. But what is a nuisance at common law? Blackstone's def-
inition is, whatever unlawfully annoys or doth damage to another
is a nuisance. The construction of this wooden roof was an unlaw-
ful thing, made so by ordinance prohibiting its construction. That
it was, in its nature, injurious, and a source of constant danger in a
populous place, experience and the general prevalence of this sort of
legislation we are considering teach us. Such was the view of the
Legislature in the matter, that by the charter of this city, for the
purpose of guarding against the calamities of fire, they authorized
the city council to prohibit the erection or repairing of wooden build-
ings within the fire limits they might prescribe, and to declare such
buildings to be nuisances, and cause the same to be abated as they
should direct.
In pursuance of such authority, the city council established fire
limits, and by ordinance declared any such roof as the one in ques-
Ch. 6)
249
ADMINISTRATIVE EXECUTION.
tion, which should be put upon a building within such limits, to be a
nuisance, and required the city marshal, under an order from the
inayor, to remove the same.
Such an ordinance, enacted in pursuance of legislative authority,
lias the force of a statute, and may be viewed as though such, in the
treatment of the present subject. We have here, then, what is a
nuisance in fact, that which is declared to be such by ordinance-de-
termined by law to be a nuisance--and why inay not tle remedy by
abatement, under the ordinance, belong to it as well as in the case
of any nuisance at the common law? The reason for it is equally
strong As before said, there is no otlier competent remedy to meet
the necessity of the case.
Further, the charter authorizes the provision for summary abate-
ment, and the ordinance consequently gives it. How is a nuisance
to be abated by the city except by a summary proceeding? The
term itself imports such a proceecling. This case is quite different
from Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984, cited by ap-
pellee's counsel, where the court held that the mere declaration of
the city council could not make an existing structure a nuisance un-
less it had in fact that character, and that it was not allowable "that
a municipal corporation, without any general laws, either of the city
or of the state, within wliichi a given structure can be shown to be a
nuisance, can, by its mere declaration that it is one, subject it to re-
moval by any person supposed to be aggrieved, or even by the city it-
self." The thing here, we regard, had the character of a nuisance,
It was constructed in the face of a general ordinance of the city, long
before passed, prohibiting any such structure, and cleclaring it to be a
nuisance and subject to be abated as such. It was a reasonable reg-
ulation for the future, and plaintiff's defiant disobedience of it leaves
her no reason for complaint of the declared consequences.
The judgment of the Appellate Court is reversed, and the cause
remanded for further proceedings in conformity with this opinion.
Judgment reversed.
WALKER, J. I am unable to concur in cither the reasoning or
conclusion announced in this opinion.
*
BALDWIN et al. v. SMITH.
(Supreme Court of Illinois, 1876. $2 Ill. 162.)
Mr. Justice BREESE delivered the opinion of the court.
This was trespass with force and arnis, brought to the White cir-
cuit court by Michael Smith, plaintiff, and against the town of Gray-
ville and William F. Baldwin, the president, and Benjamin Batson
and others, members of the town council, and Isaac H. Hainilton, con-
stable of the town of Grayville, defendants.
A
250
(Part 1
ADMINISTRATIVE POWER AND ACTION.
4
The defendants pleaded the general issue, and several special pleas,
to which latter demurrers were sustained, and the cause tried upon
the general issue. The jury found for the plaintiff, assessing his
damages at $220, whereupon a motion for a new trial was made by
the defendants. Thereupon the plaintiff remitted $70, and judgment
was rendered for $150, to reverse which the defendants, except W.
Wirt Gray and Henry Butler, appeal, and assign various errors.
It is unnecessary to consider all the errors assigned, or go into a
critical examination of the special pleas adjudged bad, as the whole
controversy is confined within a narrow compass.
It appears the plaintiff had been duly licensed, by the proper au-
thorities of the town of Grayville, to retail spirituous liquors—in
other words, to keep a dramshop-for which he had paid $200 into
the town treasury, and had “complied with the laws and ordinances."
There is no condition in the license, and no reference to any ordi-
nance of the town, authorizing its revocation for cause, yet it must
be held to have been granted subject to such ordinances of the town
as had a legal existence at the time the same was granted, and such
as were within the competency of the town authorities to enact.
An ordinance of the town, entitled “License, Groceries,” is set up
in one or more of the special pleas, on three sections of which, namely,
sections 2, 3 and 4, the defense is based.
Section 2 provides for the execution of a bond by the applicant for
a license, conditioned that he will keep an orderly house, and ob-
serve the conditions contained in section 3, which provides that li-
cense should be granted only on the express condition that the ap-
plicant should keep an orderly house, permit no gaming or playing
with cards, and should not sell, give, or otherwise dispose of to any
minor under sixteen years of age, liquor of any kind. And by section
4, on which section the controversy turns, it is provided that the town
council, being satisfied, upon complaint or otherwise, that the third sec-
tion, or any clause thereof, has been violated, shall, in addition to the
forfeiture and collection of the bond, revoke the license of such of-
fender or offenders; and it shall be the duty of the town constable
to immediately close up the grocery of such offender or offenders.
The town council, it would appear, having become satisfied, "by
complaint or otherwise," that the third section of the ordinance, or
some part thereof, had been violated by the licensee, entered into an
investigation of the matter, having the plaintiff before them, who
was examined as a witness, and they found him guilty, revoked his
license, and ordered the town constable to close the saloon, which
he did by turning out the clerk then in possession, locking the doors
and taking the key, thus assuming control over the premises.
Now, the only question is, had the town council, under this section
of the ordinance, the power to do the acts, by and through the town
constable, they admit, by their pleas, they did do?
We are satisfied they had no such power. Admitting they could
Ch. 6)
251
ADMINISTRATIVE EXECUTION.
!
revoke the license, and did revoke it, there their power ended. They
liad no right, manu forti, to oust the owner from the premises, and
thus deprive him of the use and control of his property, nor was there
any necessity for so acting. The revocation of the license was, virtual-
ly, closing the doors of the saloon as to the traffic in liquors. Should
the keeper of the saloon, after the revocation, continue to sell liquor
as under the license, he would be subject to indictment and punish-
ment under the law.
The town council had no more power to authorize the town con-
stable to do the acts which he admits he did do than to authorize
him to imprison the supposed offender, at his discretion. The in-
vestigation by the town council amounts to nothing, as that was not
a judicial tribunal, empowered to make such investigations, and con-
demn and punish. Such proceedings as we find in this record are
violative of the elementary principles of our Constitution and laws,
which give to any man the right of trial by a jury, and in a court of
competent jurisdiction. His guilt cannot be inquired into by a town
council, and their decree enforced by a town constable, with im-
punity. The party charged with a violation of the ordinance had a
right to be heard in court, and to receive its judgment.
The defense being based on this section of the ordinance, and that
being invalid, the demurrers to the pleas setting that up as a defense
were properly sustained.
This opinion proceeds upon the ground that the charter of the
town of Grayville conferred authority to pass the ordinance in ques-
tion. The charter is not before us for examination; but, admitting
the power, so much of it as empowered the authorities to close the
saloon by force must be held invalid, for the reasons given. Au-
thority to revoke a license to sell liquor does, on being executed, to
all intents and purposes close the saloon as to that traffic, but confers
no authority to deprive a man, summarily, of his property or of its
use.
We are satisfied no defense to this action was set up in any of the
special pleas interposed by any of these parties. The saloon should
be adjudged a nuisance, before it could be abated. There must first
be legal proceedings. Earp v. Lee et al., 71 I11. 193.
Finding no error in the record, the judgment is affirmed.
Judgment affirmed.
8
8 Part of the opinion is omitted.
See, also, Eddy v. Board of Health, 10 Phila. (Pa.) 94 (1873).
As to summary abatement, destruction, etc., under the police power, see,
further, Salem v. Eastern R. Co., 98 Mass. 431, 06 Am. Dec. 650 (1868), ante.
p. 150; Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am.
St. Rep. 850 (1891), post, p. 535; Raymond v. F'ish, 51 Conn. 80, 50 Am. Rep.
3, post, p. 313; Deems v. Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A.
541, 45 Am. St. Rep. 339 (1894); North American Cold Storage Co. v. Chi-
cago, 211 U. S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195 (1908), post, p. 256.
252
(Part 1
ADMINISTRATIVE POWER AND ACTION.
SECTION 31.-SAME-NOTICE BEFORE ABATEMENT
COOPER v. BOARD OF WORKS FOR WANDSWORTH
DISTRICT.
(Court of Common Pleas, 1863. 14 C. B. [N. S.] 180.)
*
*
This was an action for pulling down a house of the plaintiff which
was in the course of erection.
The defendants justified their act under the seventy-sixth section
of the Metropolis Local Management Act, 1855, 18 & 19 Vict. c. 120,
which enacts that, “before beginning to lay or dig out the foundation
of any new house or building within any such parish or district, or
to rebuild any house or building therein, and also before making any
drain for the purpose of draining directly or indirectly into any sewer
under the jurisdiction of the vestry or board of or for any such par-
ish or district, seven days' notice in writing shall be given to the
vestry or board by the person intending to build or rebuild such house
or building or to make such drain;
and the vestry or dis-
trict board shall make their order in relation to the matters aforesaid,
and cause the same to be notified to the person from whom such no-
tice was received, within seven days after the receipt of such notice;
and, in default of such notice, or if such house, building, or drain,
or branches thereto, or other connected works and apparatus and water
supply, be begun, erected, made, or provided in any respect contrary
to any order of the vestry or board made and notified as aforesaid,
or the provisions of this act, it shall be lawful for the vestry or board
to cause such house or building to be demolished or altered, and to
cause such draitor branches thereto, and other connected works
and apparatus, and water supply, to be re-laid, amended, or re-made,
or, in the event of omission, added, as the case may require, and to
recover the expenses thereof from the owner thereof in the manner
hereinafter provided."
The cause was tried before Willes, J., at the sittings in Middlesex
after last Michaelmas term. It appeared that the plaintiff, a builder,
was employed to build a house within the Wandsworth district, and
had already reached the second story, when the defendants, without
giving him any notice, sent their surveyor and a number of work-
men, at a late hour in the evening, and razed it to the ground.
There was conflicting evidence as to whether or not the plaintiff
had given the notice, required by the seventy-sixth section of the
Metropolis Local Management Act, of his intention to build; he al-
leging that he had, and the officers of the board denying that any
such notice had come to their hands. But it was admitted by the
Ch.6)
253
ADMINISTRATIVE EXECUTION.
plaintiff that he had commenced digging out the foundations within
five days of the day on which he alleged he had sent notice.
On the part of the plaintiff, it was submitted that the district board
of works had no power under the circumstances to demolish his
house, and that, assuming they had such power, they had improperly
exercised it, by acting without notice to him or giving him an op-
portunity of being heard.
For the defendants it was insisted that the seventy-sixth section
of the statute gave them a discretion, against the exercise of which
there was no appeal, except to the metropolitan board of works under
section 211, and that, inasmuch as they were acting ministerially, and
not judicially, they were not bound to give any notice.
Under the direction of the learned judge, a verdict was entered
for the plaintiff, leave being reserved to the defendants to move to
enter the verdict for them, or a nonsuit, if the court should be of opin-
ion that the action was not maintainable.
ERLE, C. J. I am of opinion that this rule ought to be discharged.
This was an action of trespass by the plaintiff against the Wandsworth
district board, for pulling down and demolishing his house; and
the ground of defense that has been put forward by the defendants
has been under the seventy-sixth section of the Metropolis Local Man-
agement Act, 18 & 19 Vict. c. 120. By the part of that section which
applies to this case, it is enacted that, before any person shall begin
to build a new house, he shall give seven days' notice to the district
board of his intention to build; and it provides at the end that in
default of such notice it shall be lawful for the district board to de-
molish the house. The district board here say that no notice was
given by the plaintiff of his intention to build the house in question,
wherefore they demolished it. The contention on the part of the
plaintiff has been that, although the words of the statute, taken in
their literal sense, without any qualification at all, would create a
justification for the act which the district board has done, the powers
granted by that statute are subject to a qualification which has been
repeatedly recognized, that no man is to be deprived of his property
without his having an opportunity of being heard. The evidence here
shows that the plaintiff and the district board had not been quite on
amicable terms. Be that as it may, the district board say that no no-
tice was given, and that consequently they had a right to proceed to
demolish the house without delay, and without notice to the party
whose house was to be pulled down, and without giving him an op-
portunity of shewing any reason why the board should delay.
I think that the power which is granted by the seventy-sixth section
is subject to the qualification suggested. It is a power carrying with
it enormous consequences. The house in question was built only to
a certain extent. But the power claimed would apply to a complete
house. It would apply to a house of any value, and completed to any
extent; and it seems to me to be a power which may be exercised most
254
(Part 1
ADMINISTRATIVE POWER AND ACTION.
perniciously, and that the limitation which we are going to put upon
it is one which ought, according to the decided cases, to be put upon
it, and one which is required by a due consideration for the public in-
terest. I think the board ought to have given notice to the plaintiff,
and to have allowed him to be heard. The default in sending notice
to the board of the intention to build is a default which may be ex-
plained. There may be a great many excuses for the apparent de-
fault. The party may have intended to conform to the law. He may
have actually conformed to all the regulations which they would wish
to impose, though by accident his notice may have miscarried; and,
under those circumstances, if he explained how it stood, the proceed-
ing to demolish, merely because they had ill will against the party, is
a power that the Legislature never intended to confer. I cannot con-
ceive any harm that could happen to the district board from hearing
the party before they subjected him to a loss so serious as the demoli-
tion of his house; but I can conceive a great many advantages which
might arise in the way of public order, in the way of doing substantial
justice, and in the way of fulfilling the purposes of the statute, by the
restriction which we put upon them, that they should hear the party
before they inflict upon him such a heavy loss.
I fully agree that the Legislature intended to give the district board
very large powers indeed; but the qualification I speak of is one
which has been recognized to the full extent. It has been said that
the principle that no man shall be deprived of his property without
an opportunity of being heard is limited to a judicial proceeding, and
that a district board ordering a house to be pulled down cannot be said
to be doing a judicial act. I do not quite agree with that; neither do
I undertake to rest my judgment solely upon the ground that the dis-
trict board is a court exercising judicial discretion upon the point;
but the law, I think, has been applied to many exercises of power which
in common understanding would not be at all more a judicial proceed-
ing than would be the act of the district board in ordering a house to
be pulled down. The case of the corporation of the University of
Cambridge, who turned out Dr. Bentley, in the exercise of their as-
sumed power of depriving a member of the University of his rights,
and a number of other cases which are collected in the Hammersmith
Rent-Charge Case, 4 Exch. 96, in the judgment of Parke, B., show
that the principle has been very widely applied. The district board
must do the thing legally; there must be a resolution; and, if there
be a board, and a .resolution of that board, I have not heard a word
to show that it would not be salutary that they should hear the man
who is to suffer from their judgment before they proceed to make the
order under which they attempt to justify their act.
It is said that an appeal from the district board to the metropolitan
board (under section 211) would be the mode of redress. But, if the
district board have the power to do what is here stated, I am not at
all clear that there would be a right of redress in that way. The met-
Ch. 6)
235
ADMINISTRATIVE EXECUTION.
+
*
ropolitan board may not have a right to give redress for that which
was done under the provisions of the statute. I think the appeal clause
would evidently indicate that many exercises of the power of a district
board would be in the nature of judicial proceedings, because, certainly
when they are appealed from, the appellant and the respondent are to
be heard as parties, and the matter is to be decided at least according
to judicial forms. I take that to be a principle of very wide applica-
tion; and applicable to the present case; and I think this board was not
justified under the statute, because they have not qualified themselves
for the exercise of their power by hearing the party to be affected by
their decision.
WILLES, J' I am of the same opinion.
There is anoth-
er remark to be made with reference to these parties' proceedings.
The board are not only to do the work of demolishing the house, if
they think proper, or modifying it, but they are to charge the ex-
penses on the person who has erred against the act. His property is
affected and his purse is further affected. What happens upon that?
and how is the money to be got? That is a proceeding under the 225th
section, which is a section giving jurisdiction to the justices before
whom the costs are to be ascertained and recovered; and it is clear
that under that section the justices could not proceed without having
before them the person against whom the expenses are to be adjudged.
And it does seem an absurdity to say that in determining the amount
of expenses the party shall be heard, but that in determining whether
proceedings should be taken his mouth should be closed. I cannot
help thinking that a board exercising this large power should follow
the ordinary rule, that the party sought to be affected should be heard;
and I think that the verdict for the plaintiff ought to stand.
BYLES, J. I am of the same opinion. This is a case in which the
Wandsworth district board have taken upon themselves to pull down
a house, and to saddle the owner with the expenses of demolition, with-
out notice of any sort. There are two sorts of notice which may pos-
sibly be required, and neither of them has been given-one, a notice
of a hearing, that the party may be heard if he has anything to say
against the demolition; the other is a notice of the order, that he may
consider whether he can mitigate the wrath of the board, or in any
way modify the execution of the order. Here they have given
him neither opportunity. It seems to me that that board are wrong,
whether they acted judicially or ministerially. I conceive they acted
judicially, because they had to determine the offense, and they had
to apportion the punishment as well as the remedy. This being so,
a long course of decisions, beginning with Dr. Bentley's Case, Rex
v. Chancellor, etc., of Cambridge, 1 St. 557, 2 Ld. Raym. 1334, 8 Mod.
148, Fortescue, 202, and ending with some very recent cases, estab-
lish that, although there are no positive words in a statute requiring
8 Only a portion of the opinions of Willes and Byles, JJ., are printed.
256
(Part 1
ADMINISTRATIVE POWER AND ACTION.
that the party shall be heard, yet the justice of the common law will
supply the omission of the Legislature.
Rule discharged. 10
NORTH
AMERICAN COLD STORAGE CO. V. CITY OF
CHICAGO
(Supreme Court of United States, 1908. 211 U. S. 306, 29 Sup. Ct. 101, 53
L. Ed. 195.)
The case involved the question of the validity of section 1161 of the
Revised Municipal Code of the City of Chicago for 1905, which reads
as follows:
“Every person being the owner, lessee, or occupant of any room,
stall, freight house, cold storage house, or other place, other than a
private dwelling, where any meat, fish, poultry, game, vegetables,
fruit, or other perishable article adapted or designed to be used for
liuman food shall be stored or kept, whether temporarily or otherwise,
and every person having charge of, or being interested or engaged,
whether as principal or agent, in the care of or in respect to the custody
or sale of any such article of food supply, shall put, preserve, and keep
such article of food supply in a clean and wholesome condition, and
shall not allow the same, nor any part thereof, to become putrid, de-
cayed, poisoned, infected, or in any other manner rendered or made un-
safe or unwholesome for human food; and it shall be the duty of the
meat and food inspectors and other duly authorized employés of the
health department of the city to enter any and all such premises above
specified at any time of any day, and to forthwith seize, condemn,
and destroy any such putrid, decayed, poisoned, and infected food,
which any such inspector may find in and upon said premises."
PECKHAM, J.11
Complainant, however, contends that
there was no emergency requiring speedy action for the destruction
of the poultry in order to protect the public health from danger re-
sulting from consumption of such poultry. It is said that the food was
in cold storage, and that it would continue in the same condition it
then was for three months, if properly stored, and that therefore the
defendants had ample time in which to give notice to complainant or
the owner and have a hearing of the question as to the condition of the
poultry; and, as the ordinance provided for no hearing, it was void.
But we think this is not required. The power of the Legislature to en-
act laws in relation to the public health being conceded, as it must be,
it is to a great extent within legislative discretion as to whether any
hearing need be given before the destruction of unwholesome food
which is unfit for human consumption. If a hearing were to be always
*
10 Approved by Court of Appeal, Hopkins v. Smethwick Local Board of
Health, 24 Q. B. D. 712 (1890).
11 Only a portion of the opinion of Peckham, J., is printed.
Ch.6)
257
ADMINISTRATIVD EXECUTION.
necessary, even under the circumstances of this case, the question at
once arises as to what is to be done with the food in the meantime.
Is it to remain with the cold storage company, and, if so, under what
security that it will not be removed ? To be sure that it will not be re-
moved during the time necessary for the hearing, which might fre-
quently be indefinitely prolonged, some guard would probably have
to be placed over the subject-matter of investigation, which would
involve expense, and might not even then prove effectual. What is the
emergency which would render a hearing unnecessary?
We think when the question is one regarding the destruction of food
which is not fit for luman use the emergency must be one which would
fairly appeal to the reasonable discretion of the Legislature as to the
necessity for a prior hearing, and in that case its decision would not be
a subject for review by the courts. As the owner of the food or its
custodian is amply protected against the party seizing the food, who
must, in a subsequent action against him, show as a fact that it was
within the statute, we think that due process of law is not denied, the
owner or custodian by the destruction of the food alleged to be un-
wholesome and unfit for human food without a preliminary hearing.
The cases cited by the complainant do not run counter to those we
have above referred to.
Even if it be a fact that some value may remain for certain purposes
in food that is unfit for human consumption, the right to destroy it
is not, on that account, taken away. The small value that might remain
in said food is a mere incident, and furnishes no defense to its destruc-
tion when it is plainly kept to be sold at some time as food. California
Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306–322, 26
Sup. Ct. 100, 50 L. Ed. 204-211; Gardner v. Michigan, 199 U. S.
325, 331, 26 Sup. Ct. 106, 50 L. Ed. 212, 216.
.
The decree of the court below is modified by striking out the ground
for dismissal of the bill as being for want of jurisdiction, and, as modi-
fied, is affirmed.12
Mr. Justice BREWER dissents.
12 See Pruden v. Love, 67 Ga. 190 (1881), notice required by statute.
Notice in execution of tax distress warrants, see Cooley, Taxation, pp. 441-
443.
As to summary action against persons, see Haverty y. Bass, 66 Me. 71
(1876), quarantine; Lovell v. Seeback, 45 Minn. 465, 48 N. W. 23, 11 L. R.
A. 667 (1891), removal of paupers ; also 19 Opinions Attys. Gen. 706 (1890).
Collection of taxes by seizure of person, see Palmer v. McMahon, 133 U.
S. 660, 10 Sup. Ct. 324, 33. L. Ed. 772 (1890).
TR.ADM.LAW –17
258
(Part 1
ADMINISTRATIVE POWER AND ACTION.
SECTION 32.-FORFEITURE BY ADMINISTRATIVE
PROCESS
WILCOX V. HEMMING.
(Supreme Court of Wisconsin, 1883. 58 Wis. 144, 15 N. W. 435,
46 Am. Rep. 625.)
*
ORTON, J.13 This is an action of replevin, without claim of delivery,
for three horses, the property of the plaintiff, taken and detained by the
defendant. The defendant justifies such taking and detention by virtue
of his being master or keeper of the public pound of the city of Janes-
ville, and having authority and right under the charter and ordinances
of said city to receive and detain said horses in such pound, and to sell
the same, on account of their having been permitted by the plaintiff as
such owner to run or be at large in one of the streets of said city in
violation of such ordinances.
Some questions are raised on the evidence and charge of the court
to the jury, which will be first disposed of before the consideration of
the important and principal question in the case, viz., the constitutionali-
ty of the ordinance in question by which the defendant claims justi-
fication, for the taking and detention of the property.
5. The main and important objection to the justification of the de-
fendant under pretended legal authority is that the ordinance under
which he received, held, and sold the horses of the plaintiff is uncon-
stitutional, as authorizing the forfeiture, condemnation, or confiscation
of property without due process of law, and without compensation, etc.
It is contended that before the property is sold there should be provi-
sion for an adjudication in court of the facts which would make such
property liable to be thus taken and sold. What disposition is to be
made by the terms of the ordinance of the proceeds of such sale is
unimportant in determining the constitutionality of those provisions
which authorize the restraint and sale of such property. The mischief
complained of ends with the sale, for the property of the owner in such
animals is thereby taken away, and it would not cure the mischief and
scarcely mitigate the wrong to offer the owner the remnant of the pro-
ceeds of the sale after deducting the expenses of keeping and sale, and
the fine incurred, or even the proceeds without any such deduction.
The provisions of the charter of the city above cited fully authorize
the receiving, keeping, and sale of such animals running at large in
the public streets, and the passing of an ordinance to carry such pro-
vision into execution, so that the act of the Legislature is amenable
to this objection of unconstitutionality, as well as the ordinance itself.
13 Only a portion of the opinion of Orton, J., is printed.
Ch. 6)
259
ADMINISTRATIVE EXECUTION.
The provisions of the charter above referred to are that such animals
may be “impounded and sold to discharge the penalty for the violation
of the ordinance, and the expenses of impounding and sale.” Here is
found the authority for prescribing a fine for such offense, as well as
the impounding and sale. The right of such legislation can be found
and justified only by that police power of the state to provide summary
and suitable methods and proceedings to protect the public health,
peace, and tranquility, and the use of the highway, which transcends
private rights and the constitutional provisions for their protection.
[The opinion here cites and quotes from the following cases:
v. Alger, 7 Cush. (Mass.) 85; Pettit v. May, 34 Wis. 666; Miles v.
Chamberlain, 17 Wis. 446; Rockwell v. Nearing, 35 N. Y. 302; Rob-
erts v. Ogle, 30 Ill. 459, 83 Am. Dec. 201; Clark v., Lewis, 35 Ill. 417;
Case v. Hall, 21 Ill. 632; Friday v. Floyd, 63 I11. 50; Kennedy v.
Sowden, 1 McMul. (S. C.) 323; Crosby v. Warren, 1 Rich. Law (S.
C.) 385; Shaw v. Kennedy, 4 N. C. 591; Hellen v. Noe, 25 N. C. 495;
Whitfield v. Longest, 28 N. C. 268; Spitler v. Young, 63 Mo. 42; Gil-
christ v. Schmidling, 12 Kan. 263; White v. Tallman, 26 N. J. Law,
67; Varden v. Mount, 78 Ky. 86, 39 Am. Rep. 208; Cotter v. Doty,
5 Ohio, 393; McKee v. McKee, 8 B. Mon. (Ky.) 433; Hart v. Mayor
of Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165.]
There are many other cases which might be cited to sustain this
power given in the charter to the common council to make ordinances
to restrain animals from running at large in the public streets, and to
impound and sell them to pay the expenses, etc. So far the ordinance
itself has not been examined. There are some decisions, it must be ad-
mitted, which hold that such legislation, as well as ordinances under it,
are void as being in conflict with the constitutional provisions for the
protection of property; but it is observable that in such cases this police
power, the exercise of which in a summary manner is absolutely neces-
sary for the protection of the public in the use of its highways, is scarce-
ly alluded to. The question is of great importance, and one not with-
out difficulty. To seize and sell, upon necessarily short notice, animals
of great value, because permitted by the owner to run at large in the
street, without an adjudication of the offense in the courts, appears to
be a harsh remedy. But how this summary mode of proceeding can be
avoided, without surrendering the whole police power to protect the
highways from such an encroachment, which destroys their use by the
public for the time being, we fail to perceive. The owner will not re-
strain his own animals from running upon the streets. The city au-
thorities must do so, and at once. Then such animals must be fed and
cared for and kept until the owner shall pay the expenses and take them
away. If he fails or refuses to do so, they must be sold. But we have
already taken this view of the case, and will proceed no further with
the argument in this opinion, already too long.
The first section of the ordinance prohibits cattle, horses, etc., from
running or being at large in any street, highway, etc. The second sec-
260
(Part 1
ADMINISTRATIVE POWER AND ACTION,
tion provides a forfeiture and fine of one dollar against the owner of
the animal. The third authorizes any person so finding animals run-
ning at large to drive them to the pound, and allows 25 cents for such
service for each animal. The fourth makes it the duty of the pound-
master to receive them, to pay such 25 cents to the person driving
them, and to provide suitable sustenance for the animals in the pound,
and allows the pound-master his costs and charges, and 50 per cent.
additional to the costs. The fifth authorizes the owner to take them
away on payment of the fine and charges. The sixth provides for
notice of two days, to be once published in a daily or weekly newspa-
per, and posted at three public places in the city, of the sale to be made,
after six days from the impounding, at public vendue at the pound,
provided they are not released by the owner taking them away, “or
{they are] taken thereout by proceedings at law.” For want of bidders
the sale may be adjourned by proclamation at the time, or, if they will
not sell for sufficient to pay the charges and expenses, it may be again
adjourned. The seventh section provides for the disposition of the
proceeds of sale as follows: The pound-keeper deducts therefrom his
charges of subsistence, money paid for driving, expenses of sale, and
"one-half of the penalty," and the balance thereof shall be paid to the
treasurer of the city. These are all of the provisions which need be
noticed as being material to the main question. These regulations
would seem to be reasonable and proper to effect the object sought,
and are really necessary to protect the public, and, so far as possible, the
rights of the owner. There is nothing in the evidence itself or the
charter which forfeits or confiscates the proceeds of the sale of the
property beyond the payment of the legal charges thereon. The over-
plus belongs to the owner, and he may obtain it at any time he chooses to
do so. It cannot be presumed that it is placed in the city treasury as
belonging to the city, but only for safe-keeping.
* It will be observed that, according to the sixth section, the owner
may, at any time before the sale, take the animals away by proceedings
at law, which would include the action of replevin, an action which
would not lie at common law against a pound-keeper, and try in court
the question of their liability to be impounded; and there is ample no-
tice of the sale elsewhere provided, so that, although no adjudication
is provided before restraint and impounding, the owner's day in court
upon the question of his liability to pay the fine, and the animal's lia-
bility to be restrained, are not lost or foreclosed.
There is one provision of the ordinance, however, which cannot
be sustained, and that is that the pound-keeper may deduct the fine of
one dollar imposed, out of the proceeds of the sale, or exact such fine
before surrendering the property before sale. This is made a fine and
forfeiture, and it must be enforced by action in court, as well as other
fines and forfeitures under the general statute, or under sections 11 and
12 of the charter, which provides for their collection. The adjudication
of this matter cannot be taken away, for it is the punishment of the
Ch. 6)
261
ADMINISTRATIVE EXECUTION.
owner for permitting his animals to go at large on the streets in viola-
tion of the charter and of the ordinance. But this is a very insignificant
and unimportant part of the ordinance and of the provision of the char-
ter. This is a matter in personam and a personal liability, and as pun-
ishinent in some measure for the violation of the ordinance, to deter
him and others from like offending, and is distinct from the main pro-
visions of the ordinance in accordance with which the animals them-
selves are cared for and disposed of after removing them from the
streets. We cannot think that the matter of the fine was deemed in-
portant by the Legislature to the validity of the other main provisions,
or that such provisions would not have been adopted if the fine had
been omitted as a deduction from the proceeds of the sale and as a
charge upon the property. To that extent only the charter relating to
the subject and the ordinance thereunder should be held void for uin-
constitutionality.
In Gosselink v. Campbell, 4 Iowa, 296, the general ordinance and the
charter were very similar to this in every respect, including the fine, and
the court held the general ordinance valid, and that part relating to the
deduction of the fine from the proceeds of the sale as a charge upon the
property as invalid; and we adopt the language of that court, so well
considered and especially appropriate, and as expressing a correct rule
of constitutional law in such cases: “Proceedings for the abatement
of the nuisance are of a more summary nature than actions, from the
necessity of the case. The ordinance does not, strictly speaking, create
a forfeiture; for, after paying the expenses and fine, the remainder of
the proceeds of sale are paid to the owner. It is then, in effect, but the
abatement of the nuisance, and as such is regular. It is sufficient for
the abatement of the nuisance and the payment of the charges, but
not for the enforcement of the fine."
In Willis v. Legris, 45 Ill. 289, the ordinance placed the fine for the
violation of the ordinance with the charges and expenses of impound-
ing and sale, and the court said: “This provision is void as contraven-
ing that constitutional right every man has to an investigation in court
when charged with an offense punishable by fine.
marshal had no right to detain the horses for the reason the penalty
was not paid."
We hold, therefore, that the provisions of the charter authorizing
the ordinance to restrain, impound, and sell animals running at large
in the streets, and the ordinance itself, so far as they relate to the tak-
ing up, impounding, and selling such animals, are valid, and that part
of both the charter and the ordinance making the fine of one dollar a
charge upon the property, to be paid by the owner before he can take
them away, and to be deducted from the proceeds of the sale, void.
It may be said incidentally, before closing this subject, that such
legislation and municipal regulations providing for summary proceed-
ings without trial, for the abatement of nuisances of a public character,
involving the destruction or forfeiture of things inanimate, are not as
*
The city
262
(Part 1
ADMINISTRATIVE POWER AND ACTION.
well supported by necessity or emergency as those involving the keep-
ing, impounding, and selling of animals requiring immediate and con-
stant care, subsistence, and expense, and in respect to which long de-
lay is inadmissible. Cases are numerous of the former class, in which
summary proceedings, without ordinary trial for abatement, have
been allowed, without a thought of any infringement of a constitution-
al right. *
The judgment of the circuit court is affirmed.1
*
14
LAWTON et al. v. STEELE.
.
(Supreme Court of United States, 1894. 152 U. S. 133, 14 Sup. Ct. 499, 38
L. Ed. 385.)
In Error to the Supreme Court of the State of New York.
This was an action at law instituted in the Supreme Court for the
county of Jefferson, by the plaintiffs in error against the defendant
in error, together with Edward L. Sargent and Richard U. Sherman,
for the conversion of 15 hoop and fyke nets, of the alleged value of
$525. Defendants Steele and Sargent interposed a general denial. De-
fendant Sherman pleaded that he, with three others, constituted the
commissioners of fisheries of the state of New York, with power to
give directions to game and fish protectors with regard to the enforce-
ment of the game law; that defendant Steele was a game and fish pro-
tector duly appointed by the Governor of the state of New York; and
that the nets sued for were taken possession of by said Steele, as such
game and fish protector, upon the ground that they were maintained
upon the waters of the state in violation of existing statutes for the
protection of fish and game, and thereby became a public nuisance.
The facts were undisputed. The nets were the property of the plain-
tiffs, and were taken away by the defendant Steele, and destroyed. At
14 Compare Greer V. Downey, 8 Ariz. 164, 71 Pac. 900, 61 L. R. A. 408
(1903), case of a private claim.
“It remains only to consider the contention that the provision of the stat-
ute commanding the destruction of teas not exported within six months after
their final rejection was unconstitutional. The importer was charged with
notice of the provisions of the law, and the conditions upon which teas might
be brought from abroad, with a view to their introduction into the United
States for consumption. Failing to establish the right to import, because of
the inferior quality of the merchandise as compared with the standard, the
duty was imposed upon the importer to perform certain requirements, and
to take the goods from the custody of the authorities within a period of time
fixed by the statute, which was ample in duration. He was notified of the
happening of the various contingencies requiring positive action on his part.
The duty to take such action was enjoined upon him, and if he failed to
exercise it the collector was under the obligation after the expiration of the
time limit to destroy the goods. That plaintiff in error had knowledge of
the various steps taken with respect to the tea, including the final rejection
by the board of general appraisers, is conceded. We think the provision of
the statute complained of was not wanting in due process of law.” Buttfield
v. Stranahan, 192 U. S. 470, 497, 24 Sup. Ct. 349, 356, 48 L. Ed. 525 (1904).
Ch. 6)
263
ADMINISTRATIVE EXECUTION.
the time of the taking, most of the nets were in the waters of the Black
River Bay, being used for fishing purposes, and the residue were upon
the shore of that bay, having recently been used for the same purpose.
The plaintiffs were fishermen, and the defendant Steele was a state
game and fish protector. The taking and destruction of the nets were
claimed to have been justifiable under the statutes of the state relating
to the protection of game and fish. Plaintiffs claimed there was no jus-
tification under the statutes, and, if they constituted such justification
upon their face, they were unconstitutional. Defendant Sherman was
a state fish commissioner. Defendant Sargent was president of the
Jefferson County Fish & Game Association. Plaintiffs claimed these
defendants to be liable upon the ground that they instigated, incited, or
directed the taking and destruction of the nets.
Upon trial before a jury a verdict was rendered, subject to the opin-
ion of the court, in favor of the plaintiffs against defendant Steele for
the sum of $216, and in favor of defendants Sargent and Sherman. A
motion for a new trial was denied, and judgment entered upon the ver-
dict for $216 damages and $166.09 costs. On appeal to the General
Term this judgment was reversed, and a new trial ordered, and a fur-
ther appeal allowed to the Court of Appeals. On appeal to the Court
of Appeals the order of the General Term granting a new trial was af-
firmed, and judgment absolute ordered for the defendant. 119 N. Y.
226, 23 N. E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 813. Plaintiffs
thereupon sued out a writ of error from this court.
Mr. Justice BROWN,15 after stating the facts in the foregoing lan-
guage, delivered the opinion of the court.
This case involves the constitutionality of an act of the Legislature
of the state of New York known as chapter 591, Laws N. Y. 1880, as
amended by chapter 317, Laws N. Y. 1883, entitled "An act for the.
appointment of game and fish protectors.”
By the act of 1880, as amended by the act of 1883:
“Sec. 2. Any net, pound, or other means or device for taking or cap-
turing fish, or whereby they may be taken or captured, set, put, floated,
had, found, or maintained in or upon any of the waters of this state,
or upon the shores of or islands in any of the waters of this state, in
violation of any existing or hereafter enacted statutes or laws for the
protection of fish, is hereby declared to be and is a public nuisance,
and may be abated and summarily destroyed by any person, and it shall
be the duty of each and every protector aforesaid and of every game
constable to seize and remove and forthwith destroy the same,
and no action for damages shall lie or be maintained against any person
for or on account of any such seizure and destruction."
This last section was alleged to be unconstitutional and void for
three reasons: (1) As depriving the citizen of his property without
due process of law; (2) as being in restraint of the liberty of the
*
Only a portion of the opinion of Brown, J., is printed.
264
(Part 1
ADMINISTRATIVE POWER AND ACTION.
citizen; (3) as being an interference with the admiralty and maritime
jurisdiction of the United States,
The trial court ruled the first of the above propositions in plaintiffs'
favor, and the others against them, and judgment was thereupon en-
tered in favor of the plaintiffs.
The constitutionality of the section in question was, however, sus-
tained by the General Term and by the Court of Appeals, upon the
ground of its being a lawful exercise of the police power of the state.
*
The main, and only real, difficulty connected with the act in question,
is in its declaration that any net, etc., maintained in violation of any
law for the protection of fisheries is to be treated as a public nuisance,
"and may be abated and summarily destroyed by any person; and it
shall be the duty of each and every protector aforesaid and every game
constable, to seize, remove, and forthwith destroy the same." The
Legislature, however, undoubtedly possessed the power, not only to
prohibit fishing by nets in these waters, but to make it a criminal
offense, and to take such measures as were reasonable and necessary
to prevent such offenses in the future. It certainly could not do this
more effectually than by destroying the means of the offense. If
the nets were being used in a manner detrimental to the interests of the
public, we think it was within the power of the Legislature to declare
them to be nuisances, and to authorize the officers of the state to
abate them. Hart v. Mayor, 9 Wend. (N. Y.) 571, 24 Am. Dec.
165; Meeker v. Van Rensselaer, 15 Wend. (N. Y.) 397. An act of the
Legislature which has for its object the preservation of the public in-
terests against the illegal depredations of private individuals ought to
be sustained, unless it is plainly violative of the constitution or sub-
versive of private rights. In this case there can be no doubt of the
right of the Legislature to `authorize judicial proceedings to be taken
for the condemnation of the nets in question, and their sale or de-
struction by process of law. Congress has assumed this power in a
large number of cases, by authorizing the condemnation of property
which has been made use of for the purpose of defrauding the rev-
enue. Examples of this are vessels illegally registered or owned, or
employed in smuggling or other illegal traffic; distilleries or breweries
illegally carried on or operated; and buildings standing upon or
near the boundary line between the United States and another country,
and used as depots for smuggling goods. In all these cases, however,
the forfeiture was decreed by judicial proceeding. But where the
property is of little value, and its use for the illegal purpose is clear,
the Legislature may declare it to be a nuisance, and subject to sum-
mary abatement. Instances of this are the power to kill diseased
cattle; to pull down houses in the path of conflagrations; the de-
struction of decayed fruit or fish or unwholesome meats, of infected
clothing, obscene books or pictures, or instruments which can only
be used for illegal purposes. While the Legislature has no right ar-
Ch. 6)
265
ADMINISTRATIVE EXECUTION.
bitrarily to declare that to be a nuisance which is clearly not so, a
good deal must be left to its discretion in that regard; and, if the
object to be accomplished is conducive to the public interests, it may
exercise a large liberty of choice in the means employed. Railway
Co. v. Hunt, 50 N. J. Law, 308, 12 Atl. 697; Blazier v. Miller, 10
Hun, 435; Mouse's Case, 12 Coke, 63; Stone v. Mayor, 25 Wend.
(N. Y.) 173; Print Works v. Lawrence, 21 N. J. Law, 248; Id., 23
N. J. Law, 590, 57 Am. Dec. 420.
It is not easy to draw the line between cases where property il-
legally used may be destroyed summarily and where judicial pro-
ceedings are necessary for its condemnation. If the property were of
great value, as, for instance, if it were a vessel employed for smug-
gling or other illegal purposes, it would be putting a dangerous power
in the hands of a custom officer to permit him to sell or destroy it as
a public nuisance, and the owner would have good reason to complain
of such act as depriving him of his property without due process of
law. But where the property is of trifling value, and its destruction
is necessary to effect the object of a certain statute, we think it is
within the power of the Legislature to order its summary abatement.
For instance, if the Legislature should prohibit the killing of fish by
explosive shells, and should order the cartridges so used to be de-
stroyed, it would seem like belittling the dignity of the judiciary to
require such destruction to be preceded by a solemn condemnation in
a court of justice. The same remark might be made of the cards,
chips, and dice of a gambling room.
The value of the nets in question was but $15 apiece. The cost of
condemning one (and the use of one is as illegal as the use of a dozen)
by judicial proceedings would largely exceed the value of the net, and
doubtless the state would, in many cases, be deterred from executing
the law by the expense. They could only be removed from the wa-
ter with difficulty, and were liable to injury in the process of removal.
The object of the law is undoubtedly a beneficent one, and the state
ought not to be hampered in its enforcement by the application of con-
stitutional provisions which are intended for the protection of sub-
stantial rights of property. It is evident that the efficacy of this stat-
ute would be very seriously impaired by requiring every net illegally
used to be carefully taken from the water, carried before a court or
magistrate, notice of the seizure to be given by publication, and reg-
ular judicial proceedings to be instituted for its condemnation.
There is not a state in the Union which has not a constitutional pro-
vision entitling persons charged with crime to a trial by jury, and
yet from time immemorial the practice has been to try persons charged
with petty offenses before a police magistrate, who not only passes
upon the question of guilt, but metes out the proper punishment. This
has never been treated as an infraction of the Constitution, though
technically a person may in this way be deprived of his liberty without
the intervention of a jury. Callan v. Wilson, 127 U. S. 510, 8 Sup.
266
(Part 1
ADMINISTRATIVE POWER AND ACTION.
Ct. 1301, 32 L. Ed. 223, and cases cited. So, the summary abate-
ment of nuisances without judicial process or proceeding was well
known to the common law long prior to the adoption of the constitu-
tion, and it has never been supposed that the constitutional provision
in question in this case was intended to interfere with the established
principles in that regard.
Nor is a person whose property is seized under the act in question
without his legal remedy. If, in fact, his property has been used in
violation of the act, he has no just reason to complain; if not, he may
replevy his nets from the officer seizing them, or, if they have been
destroyed, may have his action for their value. In such cases the
burden would be upon the defendant to prove a justification under
the statute. As was said by the Supreme Court of New Jersey in
a similar case (Print Works v. Lawrence, 21 N. J. Law, 248, 259):
“The party is not, in point of fact, deprived of a trial by jury. The
evidence necessary to sustain the defense is changed. Even if the
party were deprived of a trial by jury, the statute is not, therefore,
necessarily unconstitutional.” Indeed, it is scarcely possible that any
actual injustice could be done in the practical administration of the
act.
It is said, however, that the nets are not in themselves a nuisance,
but are perfectly lawful acts of manufacture, and are ordinarily used
for a lawful purpose. This is, however, by no means a conclusive
answer. Many articles—such, for instance, as cards, dice, and other
articles used for gambling purposes—are perfectly harmless in them-
selves, but may become nuisances by being put to an illegal use, and
in such cases fall within the ban of the law, and may be summarily
destroyed. It is true that this rule does not always follow from the
illegal use of a harmless article. A house may not be torn down be-
cause it is put to an illegal use, since it may be as readily used for a
lawful purpose (Ely v. Supervisors, 36 N. Y. 297); but, where
minor articles of personal property are devoted to such use, the fact
that they may be used for a lawful purpose would not deprive the
Legislature of the power to destroy them. The power of the Legis-
lature to declare that which is perfectly innocent in itself to be unlaw-
ful is beyond question (People v. West, 106 N. Y. 293, 12 N. E.
610, 60 Am. Rep. 452); and in such case the Legislature may annex to
the prohibited act all the incidents of a criminal offense, including the
destruction of property denounced by it as a public nuisance.
In Weller v. Snover, 42 N. J. Law, 341, it was held that a fish
warden for a county, appointed by the governor, had the right, under
an act of the Legislature, to enter upon land and destroy a fish basket
constructed in violation of the statute, together with the materials
of which it was composed, so that it might not again be used. It was
stated in that case that, “after a statute has declared an invasion of
a public right to be a nuisance, it may be abated by the destruction of
the object used to effect it. The person who, with actual or construc-
Ch.6)
267
ADMINISTRATIVE EXECUTION.
tive notice of the law, sets up such nuisance, cannot sue the officer
whose duty it has been made, by the statute, to execute its provisions.”
So, in Williams v. Blackwall, 2 Hurl. & C. 33, the right to take pos-
session of or destroy any engine placed or used for catching salmon in
contravention of law was held to extend to all persons, and was not
limited to conservators or officers appointed under the act.
It is true there are several cases of a contrary purport. Some of
these cases, however, may be explained upon the ground that the
property seized was of considerable value. Ieck v. Anderson, 57 Cal.
251, 40 Am. Rep. 115, boats as well as nets; Dunn v. Burleigh, 62 Me.
24, teams and supplies in lumbering; King v. Hayes, 80 Me. 206, 13
Atl. 882, a horse. In others the court seems to have taken a more
technical view of the law than the necessities of the case or an ade-
quate protection of the owner required. Lowry v. Rainwater, 70 Mo.
152, 35 Am. Rep. 420; State v. Robbins, 124 Ind. 308, 24 N. E. 978,
8 L. R. A. 438; Ridgeway v. West, 60 Ind. 371.16
Upon the whole, we agree with the Court of Appeals in holding this
act to be constitutional, and the judgment of the Supreme Court is
therefore affirmed.
Mr. Chief Justice Fuller (dissenting). In my opinion the legisla-
tion in question, so far as it authorizes the summary destruction of
fishing nets and prohibits any action for damages on account of such
destruction, is unconstitutional.
Fishing nets are in themselves articles of property entitled to the
protection of the law, and I am unwilling to concede to the Legis-
lature of a state the power to declare them public nuisances, even when
put to use in a manner forbidden by statute, and on that ground to
justify their abatement by seizure and destruction without process,
notice, or the observance of any judicial form.
The police power rests upon necessity and the right of self-protec-
tion, but private property cannot be arbitrarily invaded under the mere
guise of police regulation, nor forfeited for the alleged violation of
law by its owner, nor destroyed by way of penalty inflicted upon
him, without opportunity to be heard.
It is not doubted that the abateinent of a nuisance must be limited to
the necessity of the occasion, and, as the illegal use of fishing nets
would be terminated by their withdrawal from the water and the
public be fully protected by their detention, the lack of necessity for
the arbitrary proceedings prescribed seems to me too obvious to be
ignored. Nor do I perceive that the difficulty which may attend their
removal, the liability to injury in the process, and their comparatively
small value ordinarily, affect the principle, or tend to show their sum-
mary destruction to be reasonably essential to the suppression of the
illegal use. Indeed, I think that that argument is to be deprecated
16 See, also, Edson v. Crangle, 62 Ohio St. 49, 56 N. E. 647 (1900); Dunn
v. Burleigh, 62 Me. 24 (1873).
268
(Part 1
ADMINISTRATIVE POWER AND ACTION.
as weakening the importance of the preservation, without impairment
in ever so slight a degree, of constitutional guaranties.
I am, therefore, constrained to withhold iny assent to the judgment
just announced, and am authorized to say that Mr. Justice FIELD and
Mr. Justice Brewer concur in this dissent.17
17 Compare Colon vd Lisk, 153 N. Y. 188, 47 N. E. 302, 60 Am. St. Rep. 609
(1897).
See, also. Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381 (1854);
Lincoln v. Smith, 27 Vt. 328 (1855); Bridge Street, etc., Co. v. Hogadone,
130 Mich. 638, 114 N. W. 917 (1908); Freund, Police Powers, $8 525–527.
PART II
RELIEF AGAINST ADMINISTRATIVE ACTION
CHAPTER VII
ACTIONS TO RECOVER DAMAGES OR MONEY
SECTION 33.-AGAINST OFFICERS-JUDGES
LANGE v. BENEDICT.
(Court of Appeals of New York, 1878. 73 N. Y. 12, 29 Am. Rep. 80.)
FOLGER, J. The plaintiff lias brought an action against the de-
fendant for false imprisonment, and detention in prison. He alleges
that it was wrongful and willful, without just cause or provocation.
He does not allege that it was malicious or corrupt. The complaint
in the action sets out the facts in extenso upon which the plaintiff
relies. To this the defendant has demurred, stating three causes of
demurrer; but the one cause relied upon is that the complaint does not
state facts sufficient to constitute a cause of action.
It is well, therefore, to state with some particularity the facts which
are alleged, or are conceded. In October, 1873, the defendant was
judge of the District Court for the United States of the Eastern Dis-
trict of New York. As such, by virtue of an act of Congress, he pre-
sided at and hell the Circuit Court of the United States for the South-
ern District of New York for the October term of that year. The
plaintiff was at that term arraigned upon an indictment of twelve
counts, the general purport of which was that he had stolen, embezzled,
or appropriated to his own use, certain mail-bags, the property of the
United States, of the value of twenty-five dollars. He was tried upon
tlıe indictment. The verdict of the jury was, generally, that the plain-
tiff was guilty, and that the value of the mail-bags was less than twen-
ty-five dollars. He was indicted under an act of Congress, which de-
clared the offense and affixed the punishment. By that act, if the
value of the mail-bags taken was found to be less than twenty-five
dollars, the punishment for the offense was a fine of $200 or im-
1 Only a portion of this case is printed.
(269)
270
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
prisonment for one year. The defendant, sitting as such judge and
holding that court at that term, passed judgment upon the plaintiff,
and sentenced him to pay a fine of $200, and to be imprisoned for one
year. It is manifest that the punishment thus imposed was more than
that affixed to the offense by the act of Congress. The plaintiff paid
to the clerk of the United States Circuit Court, intending it in full
payment of the fine so imposed, the sum of $200. This was done on
the 4th day of November, 1873, and during the same term of the court;
and the clerk made certificate that that sum was then on deposit in the
registry of that court. The clerk paid the money into the office of the
Assistant Treasurer of the United States, in New York City, in that
circuit, to the credit of the Treasurer of the United States, as the fine
thus imposed. There is no direct allegation in the complaint that the
plaintiff was imprisoned under that sentence. There is an allegation
that during the same term of that court a writ of habeas corpus was
granted and returned into that court, in which the imprisonment of
the plaintiff was made to appear. It may be taken as conceded, how-
ever, that the plaintiff was actually in prison for the space of five days
after the pronouncing of that sentence, and before further proceedings
were had. At the same term of that court, the defendant sitting and
holding that court, and as the judge thereof, on the return of that writ
vacated and set aside the sentence above set forth, and at the same time,
and as a part of the same judicial act and order, passed judgment anew
upon the plaintiff, and resentenced him to be imprisoned for the term
of one year. Under this action of the defendant the plaintiff was im-
prisoned, which is the alleged wrongful imprisonment and detention
of him by the defendant.
Judicial proceedings were afterwards had in behalf of the plaintiff,
the end of which was that the Supreme Court of the United States ad-
judged the resentence, above stated to have been pronounced, without
authority, and discharged the plaintiff from his imprisonment. It does
not appear that the defendant was a party to the proceedings in the Su-
preme Court, or was heard or represented there. On this state of facts
the plaintiff insists that the defendant is liable to him in damages. The
defendant claims that the facts show that all which he did he did as a
United States judge, and that the judicial character in which he acted
protects him from personal responsibility.
In our judgment, the question between the parties is brought to
what, in words at least, is a very narrow issue: Did the defendant im-
pose the second sentence as a judge; or, although he was at the mo-
ment of right upon the bench, and authorized and empowered to exer-
cise the functions of a judge, was the act of resentencing the plaintiff
so entirely without jurisdiction, or so beyond or in excess of the juris-
diction which he then had as a judge, as that it was an arbitrary and
unlawful act of a private person? A narrow issue, but not to be easily
determined to the satisfaction of a cautious inquirer.
The general rule which applies to all such cases, and which is to be
*
Ch.7)
271
ACTIONS TO RECOVER DAMAGES OR MONEY.
observed in this, has been in olden times stated thus: Such as are by
law made judges of another shall not be criminally accused, or made li-
able to an action for what they do as judges; to which the Year Books
(43 Edw. III, 9; 9 Edw. IV, 3) are cited in Floyd v. Barker, 12 Coke,
26. The converse statement of it is also ancient: Where there is no
jurisdiction at all, there is no judge. The proceeding is as nothing.
Perkin v. Proctor, 2 Wilson, 382-384, citing the Marshalsea Case, 10
Coke, 65–76, which says: “Where he has no jurisdiction, non est
judex.” It has been stated thus, also: No action will lie against a
judge, acting in a judicial capacity, for any errors which he may com-
mit, in a matter within his jurisdiction. Gwynne v. Pool, Lutw. 290.
It has been, in modern days carried somewhat further, in the terms of
the statement: Judges of superior or general jurisdiction are not lia-
ble to civil actions for their judicial acts, even when such acts are in
excess of their jurisdiction, and are alleged to have been done mali-
ciously and corruptly. Bradley v. Fisher, 13 Wall. 351, 20 L. Ed. 646.
It is to be seen that in these different modes of stating the principle
there abides a qualification. To be free from liability for the act, it
must have been done as judge, in his judicial capacity. It must have
been a judicial act. So it always remains to be determined, when is
an act done as judge, in a judicial capacity? And this is the difficulty
which has inost often been found in the use of this rule, and which is
· present here: To determine when the facts exist which call into play
that qualification
For it is plain that the fact that a man sits in the seat of justice,
though having a clear right to sit there, will not protect him in every
act which he may choose or chance to do there. Should such an one,
rightfully holding a court for the trial of civil actions, order the head
of a bystander to be stricken off, and be obeyed, he would be liable.
Thus, a person in the office of judge of the ecclesiastical court in Eng
land excommunicated one for refusing to obey an order, made by him,
that he become guardian ad litem for an infant son, and though the
order was made in a matter then lawfully before the court for adjudi-
cation, and of which he as judge had jurisdiction, he was held liable
to an action. Beaurain v. Sir Wm. Scott, 3 Campb. 388. He had not,
as judge, jurisdiction of the person to whom he addressed the order.
On the other hand, one rightfully holding a court for the trial of a
criminal ction fined and imprisoned a juror, for that he did not bring
in a verdict of guilty against one on trial for an offense, after the court
had directed the jury that such a verdict was according to the law and
facts. The juror was discharged from imprisonment on habeas cor-
pus brought in his behalf, and it was held that the act of fining and im-
prisoning him was unlawful, inasmuch as there was no allegation of
corruption or like bad conduct against the juror. The juror then
brought action against him who sat as judge and made the order for
the fine and imprisonment, but took nothing thereby, for it was held
that the judge acted judicially, as judge, as he had jurisdiction of the
272
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RELIEF AGAINST ADMINISTRATIVE ACTION,
person of the juror, and jurisdiction of the subject-matter, to wit, the
matter of punishing jurors for misbehavior as such, and that his judg-
inent that the facts of that case warranted him in inflicting punish-
ment was a judicial error, to be avoided and set aside in due course of
legal proceedings, for whiclı, however, he was not personally liable.
Hammond v. Howell, Recorder of London, 2 Mod. 218; Bushell's
Case, Vaughan, 135. So a judge of oyer and terminer was protected
from indictment when he had made entry of record that some were
indicted for felony before him; whereas, in fact, they were indicted
for trespass only. 12 Coke, 25.
Thus it appears that the test is not alone that the act is done while
having on the judicial character and capacity, nor yet is it alone that
the act is not lawful.
We have seen, too, that the test is not that the act was in excess of
jurisdiction, or alleged to liave been done with malice and corruptly;
for, even if it is such an act, it does not render liable the doer of the
act, if he be a judge of a court of general or superior authority. Brad-
ley v. Fisher, supra.
We think it clear that there is no liability to civil action, if the act
was done "in a matter within his jurisdiction," to use the words of
Gwynne v. Pool, supra. Those words mean that, when the person as-
sumed to do the act as judge, he had judicial jurisdiction of the per-
son acted upon, and of the subject-matter as to which it was done. . Ju-
risdiction of the person is when the citizen acted upon is before the
judge, either constructively or in fact, by reason of the service upon
him of some process known to the law, and which has been duly is-
sued and executed. What is meant by jurisdiction of the subject-mat-
ter we have had occasion to consider lately in Hunt v. Hunt, 72 N. Y.
217, 28 Am. Rep. 129. It is not confined within the particular facts,
which must be shown before a court or a judge, to make out a specific
and immediate cause of action. It is as extensive as the general or ab-
stract question, which falls within the power of the tribunal or officer
to act concerning
Our idea will be illustrated by a reference to Groenvelt v. Burwell, 1
Ld. Raym. 454. There the defendants, as censors of a college of phy-
sicians, had imposed punishment on the plaintiff for what they ad-
judged was malpractice by him. He brought his action. They pleaded
the charter of the college, giving them power to make by-laws for the
government of all practitioners in medicine in London, and to over-
look them and to examine their medicines and prescriptions, and to
punish malpractice by fine and imprisonment; that they had, in the
exercise of that power, adjudged the plaintiff guilty of mala praxis,
and fined him twenty pounds, and ordered him imprisoned twelve
nionths, nisi, etc. It was held that the defendants had "jurisdiction
over the person of the plaintiff, inasmuch as he practiced medicine in
London, and over the subject-matter, to wit, the unskillful adminis-
tration of physic." That is the language of Holt, C. J., in that case.
!
Ch.7)
273
ACTIONS TO RECOVER DAMAGES OR MONEY.
And because the defendants had power to hear and punish, and to fine
and imprison, it was held that they were judges of record, and, be-
cause judges, not liable for the act of fining and imprisoning. See,
also, Ackerley v. Parkinson, 3 Maul. & Selw. 411.
It is the general abstract thing which is the subject-matter. The
power to inquire and adjudge whether the facts of each particular case
make that case a part or an instance of that general thing—that power
is jurisdiction of the subject-matter. Thus in Hammond v. Howell,
supra, the defendant was saved from liability to civil action, inasmuch
as he had as judge jurisdiction of the subject-matter of punishing
jurors for a misdemeanor upon the panel. He made an error in de-
ciding that the facts of that case made an instance of that subject-
matter. But the jurors were within his jurisdiction of their persons,
and he had jurisdiction of the subject matter, and his error was a ju-
dicial error—an act done quatenus judge, not an act as Howell, the
private person, though it was an act contrary to law, grievous and op-
pressive upon the citizen.
The inquiry, then, at this stage of our consideration of the case, is
this: Whether the defendant, sitting upon the bench of the Circuit
Court, and being on that occasion de jure et de facto the Circuit Court,
and having as such jurisdiction of all persons by law within the power
of that court, and jurisdiction of all subject-matters within its cogni-
zance, whether he had jurisdiction of the person of the plaintiff, and
of any subject-matter wherefrom he had authority to hear and ad-
judge whether the facts in the case of the plaintiff, as then presented
to him, fell within any of those subject-matters. It is not the inquiry
whether the act then done as the act of the court was erroneous and
illegal. That is but another form of saying whether it could or could
not be lawfully done as a court by the person then sitting as the judge
thereof. It is whether that court then had the judicial power to consid-
er and pass upon the facts presented, and to determine and adjudge that
such an act based upon them would be lawful or unlawful.
It is true that the United States Supreme Court upon a certain state
of facts before it, and in a proceeding by certiorari to which this
defendant was not a party, and in which he was not heard by that
court, reached the conclusion that the second sentence of the Circuit
Court was pronounced without authority, and discharged the plaintiff
from his imprisonment thereunder. Ex parte Lange, 18 Wall. 163,
21 L. Ed. 872. In the prevailing opinion given in the case are re-
peated expressions to the effect that the power of the Circuit Court to
punish further than the first sentence, was gone; that its power to
punish for that offense was at an end when the first sentence was
inflicted, and the plaintiff had paid the $200 and laid in prison five
days; that its power was exhausted; that its further exercise was
prohibited; that the power to render any further judgment did not
exist; that its authority was ended.
FR. ADM. LAW—18
*
274
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RELIEF AGAINST ADMINISTRATIVE ACTION.
It is claimed from these expressions that the force of the decision
in that case is that the defendant in pronouncing the second sentence
upon the plaintiff did not act as a judge. It is plausible to say that
if an act, sought to be defended as a judicial act, has been pronounced
without authority and void, it could not have been done judicially.
But we have yet to learn that the eminent court, which used that
language in adjudging upon the case made upon that writ, would
hold that the defendant did not act as a judge in pronouncing the
judgment which was deemed without power to sustain it. The opin-
ion also says: “Judgment may be erroneous and not void; and it may
be erroneous because it is void. The distinctions between void and
voidable judgments are very nice, and they may fall under the one
class or the other, as they are regarded for different purposes."
We do not think that learned court would disregard the reasoning
of Howell's Case, supra, and others like unto it. Yet in Bushell's
Case, supra, he was discharged on habeas corpus, on the ground that
Howell as judge had no power or authority to fine or imprison him
for the cause set up. It was called "a wrongful commitment” (1 Mod.
184), as contrasted with “an erroneous judgment" (12 Mod. 381,
392); and yet when Howell was called to answer in a civil action for
the act, it was held that though without authority it was judicial.
In Bushell's Case, 1 Mod. 119, Hale, C. J., said: “The habeas corpus
and the writ of error, though it doth make the judgment void, doth not
make the awarding of the process void to that purpose"-i. e., of
an action against the judge—"and the matter was done in a court of
justice," he continued. So is the comment upon that case, in Yates
v. Lansing, 5 Johns. 290: "It had jurisdiction of the cause because
it had power to punish a misdemeanor in a juror, though in the case
before the court the recorder made an erroneous judgment in con-
sidering the act of the juror as amounting to a misdemeanor, when
in fact it was no misdemeanor." 2 Mod. 218. So in Ackerley v.
Parkinson, supra, the defendant was held protected though the cita-
tion issued by him was considered as a nullity, on the ground that
the court had a general jurisdiction over the subject matter.
Let it be conceded, at this point, that the law is now declared that
the act of the defendant was without authority and was void, yet it
was not so plain as then to have been beyond the realm of judicial
discussion, deliberation and consideration, as is apparent from the
fact that four judges, other than the defendant, acting as judges,
have agreed with him in his view of the law.
He was, in fact, sitting in the place of justice; he was at the very
time of the act a court; he was bound by his duty to the public and
to the plaintiff to pass as such upon the question growing out of the
facts presented to him, and as a court to adjudge whether a case had
arisen in which it was the demand of the law that, on the vacating of
the unlawful and erroneous sentence or judgment of the court, an-
other sentence or judgment could be pronounced upon the plaintiff.
Ch.7)
275
ACTIONS TO RECOVER DAMAGES OR MONEY.
So to adjudge was a judicial act, done as a judge, as a court, though
the adjudication was erroneous, and the act based upon it was with-
out authority and void. Where jurisdiction over the subject is in-
vested by law in the judge, or in the court which he holds, the manner
and extent in which the jurisdiction shall be exercised are generally as
much questions for his determination as any other involved in the case,
although upon the correctness of his determination in those particu-
lars, the validity of his judgment may depend. Ackerley v. Parkinson,
supra. For such an act, a person acting as judge therein is not liable
to civil or criminal action. The power to decide protects, though
the decision be erroneous. See Garnett v. Farrand, 6 B. & C.
611.
This act of the defendant was, then, one in excess of, or beyond,
the jurisdiction of the court. And though, when courts of special
and limited jurisdiction exceed their powers, the whole proceeding is
coram non judice, and void, and all concerned are liable, this has
never been carried so far as to justify an action against a judge of
a superior court, or one of general jurisdiction, for an act done
by him in a judicial capacity. Yates v. Lansing, supra; Bradley
v. Fisher, supra; Randall v. Brigham, 7 Wall. 523, 19 L. Ed.
285.
The case turns upon a question more easily stated than it is deter-
mined: Was the act of the defendant done as a judge? Our best
reflection upon it, aided by the reasonings and conclusions of many
more cases than we have cited, has brought us to the conclusion that
as he had jurisdiction of the person and of the subject-matter, and
as his act was not without the inception of jurisdiction, but was one
no more than in excess of or beyond jurisdiction, the act was judicial.
We are not unmindful of the considerations of the protection of the
liberty of the person, and of the staying of a tendency to arbitrary
exercise of power, urged with so much eloquence by the learned and
accomplished counsel for the appellant. Nor are we of the mind of the
court in 2 Mod. 218, 220, that “these are mighty words in sound, but
nothing to the matter.” They are to the matter, and not out of place
in such a discussion as this. Nor have we been disposed to outweigh
those considerations with that other class, which sets forth the need of
judicial independence, and of its freedom from vexation on account
of official action, and of the interest that the public have therein.
See Bradley v. Fisher, supra; Taaffe v. Downs, in note to Calder v.
Halket, 3 Moore, P. C. C. 28, 41, 51, 52. These are not antag-
onistic principles; they are simply countervailing. As with all other
rules which act in the affairs of men, preponderance may not be fondly
given to one to the disregard of the other; each should have its due
weight yielded to it, for thus only is a safe equipoise reached.
We have arrived at our decision upon what we hold to be long and
well established principles applied to the peculiar facts of this inter-
esting case.
276
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RELIEF AGAINST ADMINISTRATIVE ACTION.
The judgment of the General Term should be affirmed. All concur,
except ANDREWS, J., absent.
Judgment affirmed.2
GROVE V. VAN DUYN.
(Court of Errors and Appeals of New Jersey, 1882. 44 N. J. Law, 654, 43
Am. Rep. 412.)
BEASLEY, C. J. Most of the general principles of law pertaining
to that branch of this controversy which relates to the alleged liability
of the defendant in this suit, who was a justice of the peace, are so
completely settled as not to be open to discussion. The doctrine that
an action will not lie against a judge for a wrongful commitnient, or
for an erroneous judgment, or for any other act nade or done by
him in his judicial capacity, is as thoroughly established as are any
other of the primary maxims of the law. Such an exemption is ab-
solutely essential to the very existence, in any valuable form, of the
judicial office itself; for a judge could not be either respected or in-
dependent if his motives for his official actions or his conclusions, no
inatter how erroneous, could be put in question at the instance of
every malignant or disappointed suitor. Hence we find this judicial
immunity has been conferred by the laws of every civilized people.
That it exists in this state in its fullest extent has been repeatedly de-
clared by our own courts. Such was pronounced by the Supreme
Court to be the admitted principle in the cases of Little v. Moore, 4 N.
J. Law, 75, 7 Am. Dec. 574, Taylor v. Doremus, 16 N. J. Law, 473, and
Mangold v. Thorpe, 33 N. J. Law, 134, and by this court in Loftus
v. Fraz, 43 N. J. Law, 667.
To this extent there is no uncertainty or difficulty whatever in the
subject. But the embarrassment arises where an attempt is made to
express with perfect definiteness when it is that acts done by a judge,
and which purport to be judicial acts, are such within the meaning
of the rule to which reference has just been made.
It is said everywhere in the text-books and decisions that the of-
ficer, in order to entitle himself to claim the immunity that belongs
to judicial conduct, must restrict his action within the bounds of his
jurisdiction, and jurisdiction has been defined to be "the authority
of the law to act officially in the particular matter in hand." Cooley
on Torts, 417. But these maxims, although true in a general way,
are not sufficiently broad to embrace the principle of immunity that
appertains to a court or judge exercising a general authority. Their
defect is that they leave out of the account all those cases in which
2 As to English law, see 1 Beven on Negligence, (20 Ed.) p. 275, and espe-
cially Kemp v. Neville, 10 C. B. (N. S.) 523 (186.1).
American cases : Yates v. Lansing, 5 Johns. (N. Y.) 282 (1809); Randall
V. Brigham, 7 Wall. 523, 19 L. Ed. 285 (1868); Bradley y. Fisher, 13 Wall.
335, 20 L. Ed. 646 (1871).
Ch.
277
ACTIONS TO RECOVER DAMAGES OR MONEY.
the officer in the discharge of his public duty is bound to decide wheth-
er or not a particular case, under the circumstances as presented to
him, is within his jurisdiction, and he falls into error in arriving at
his conclusion. In such instance, the judge, in point of fact and law,
has no jurisdiction, according to the definition just given, over "the
particular matter in hand," and yet, in my opinion, very plainly he is
not responsible for the results that wait upon his mistake. And it is
upon this precise point that we find confusion in the decisions.
There are certainly cases which hold that if a magistrate, in the
regular discharge of his functions, causes an arrest to be made under
his warrant on a complaint which does not contain the charge of a
crime cognizable by him, he is answerable in an action for the injury
that has ensued. But I think these cases are deflections from the
correct rule; they make no allowance for matters of doubt and diffi-
culty. If the facts presented for the decision of the justice are of
uncertain signification with respect to their legal effect, and he de-
cides one way, and exercises a cognizance over the case, and if the
superior court in which the question arises in a suit against the jus-
tice differs with him on this close legal question, is he open, by reason
of his error, to an attack by action? If the officer's exemption
from liability is to depend on the question whether he had juris-
diction over the particular case, it is clear that such officer is often
liable under such conditions because the higher court, in deciding
a doubtful point of law, may have declared that some element was
wanting in the complaint which was essential to bring this case
within the judicial competency of the magistrate. But there are
many decisions which, perhaps, without defining any very clear rule
on the subject, have maintained that the judicial officer was not liable
under such conditions.
The very copious brief of the counsel of the defendants abounds in
such illustrations. As an example, we may refer to the old case of
Gwynne v. Poole, 2 Lutw. 387, in which it was held that the justice
was justified because he had reason to believe that he had jurisdic-
tion, although there was an arrest in an action which arose out of the
justice's jurisdiction. This case has been since approved in Kemp
v. Neville, 10 C. B. (N. S.) 550. Here, if the test of official liability
had been the mere fact of the right to take cognizance over the par-
ticular matter in hand, considered in the light of strict legal rules,
this decision would have been the opposite of what it is. In the same
way the subject is elucidated in Brittain v. Kinnaird, 1 B. & B. 432,
the facts being a conviction by a justice of a person of having gun-
powder in a certain - boat, a special act authorizing the detention of
any suspected boat, and when the magistrate was sued in trespass
for an illegal conviction, it was declared that the plaintiff, in order to
show the defendants' want of cognizance over the proceedings lead-
ing to the conviction, could not give evidence that the craft in ques-
• 8 See Century Digest, Justices of the Peace, SS 36, 37, 39.
278
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RELIEF AGAINST ADMINISTRATIVE ACTION.
tion was a vessel and not a boat, because the justice had judicially de-
termined that point. And in this case likewise the test of jurisdiction
in the magistrate in point of fact and of law was rejected, an inquiry
into the authority by force of which the proceedings had been taken
being disallowed, for the reason that such question had been passed
upon by the magistrate himself, the point being before him for ad-
judication.
The same doctrine was promulged in explicit and forcible terms
by Mr. Justice Field, delivering the opinion of the Supreme Court
of the United States, in the case of Bradley v. Fisher, 13 Wall. 335,
20 L. Ed. 646, this being his language: "If a judge of a criminal
court, invested with general criminal jurisdiction over offenses com-
mitted within a certain district, should hold a particular act to be a
public offense which it is not, and proceed to the arrest and trial of
a party charged with such act,
no personal liability to
civil action for such acts would attach to the judge, although those
acts would be in excess of his jurisdiction, or of the jurisdiction of
the court held by him, for these are particulars for his judicial con-
sideration, whenever this general jurisdiction over the subject-matter
is invoked."
These decisions, in my estimation, stand upon a proper footing, ,
and many others of the same kind might be referred to; but such
course is not called for, as it must be admitted that there is much con-
trariety of results in this field, and the references above given are am-
ply sufficient as illustrations for my present purposes. The assertion, I
think, may be safely made that the great weight of judicial opinion is
in opposition to the theory that if a judge, as a matter of law and
fact, has not jurisdiction over the particular case, that thereby, in
all cases, he incurs the liability to be sued by any one injuriously af-
fected by his assumption of cognizance over it. The doctrine that
an officer having general powers of judicature must, at his peril, pass
upon the question, which is often one difficult of solution, whether
the facts before him place the given case under his cognizance, is as un-
reasonable as it is impolitic. Such a regulation would be applicable
alike to all courts and to all judicial officers acting under a general au-
thority, and it would thus involve in its liabilities all tribunals except
those of last resort. It would also subject to suit persons participating
in the execution of orders and judgments rendered in the absence of
a real ground of jurisdiction. By force of such a rule, if the Su-
preme Court of this state, upon a writ being served in a certain
manner, should declare that it acquired jurisdiction over the defend-
ant, and judgment should be entered by default against him, and if,
upon error brought, this court should reverse such judgment on the
ground that the service of the writ in question did not give the in-
ferior court jurisdiction in the case, no reason can be assigned why
the justices of the Supreme Court should not be liable to suit for any
injurious consequence, to the defendant proceeding from their judg-
Ch.)
279
ACTIONS TO RECOVER DAMAGES OR MONEY.
ment. As I have said, in my judgment, the jurisdictional test of the
measure of judicial responsibility must be rejected.
Nevertheless it must be conceded that it is also plain that in many
cases a transgression of the boundaries of his jurisdiction by a judge
will impose upon him a liability to an action in favor of the person
who has been injured by such excess. If a magistrate should, of his
own motion, without oath or complaint being made to him, on mere
hearsay, issue a warrant and cause an arrest for an alleged larceny,
it cannot be doubted that the person so illegally imprisoned could
seek redress by a suit against such officer. It would be no legal an-
swer for the magistrate to assert that he had a general cognizance
over criminal offenses, for the conclusive reply would be that this
particular case was not, by any form of proceeding, put under his
authority.
From these legal conditions of the subject my inference is that the
true general rule with respect to the actionable responsibility of a
judicial officer having the right to exercise general powers is that
he is so responsible in any given case belonging to a class over whiclı
he has cognizance, unless such case is by complaint or other proceed-
ing put at least colorably under his jurisdiction. Where the judge is
called upon by the facts before him to decide whether his authority
extends over the matter, such an act is a judicial act, and such officer
is not liable in a suit to the person affected by his decision, whether
such decision be right or wrong. But when no facts are present,
or only such facts as have neither legal value nor color of legal value
in the affair, then, in that event, for the magistrate to take jurisdic-
tion is not, in any manner, the performance of a judicial act, but
simply the commission of an unofficial wrong. This criterion seems
a reasonable one. It protects a judge against the consequences of
every error of judgment, but it leaves him answerable for the com-
mission of wrong that is practically willful. Such protection is nec-
essary to the independence and usefulness of the judicial officer, and
such responsibility is important to guard the citizen against official
oppression.
The application of the above-stated rule to this case must, obviously,
result in a judgment affirming the decision of the circuit judge. There
was a complaint, under oath, before this justice, presenting for his
consideration a set of facts to which it became his duty to apply
the law. The essential things there stated were that the plaintiff, in
combination with two other persons, "with force and arms,” entered
upon certain lands, and "with force and arms did unlawfully carry
away about four hundred bundles of cornstalks, of the value," etc.,
and were engaged in carrying other cornstalks from said lands. By
a statute of this state (Revision, p. 244, par. 99) it is declared to be
an indictable offense "if any person shall willfully, unlawfully and
4 See Tracy v. Williams, 4 Conn. 107, 10 Am. Dec. 102 (1821).
280
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RELIEF AGAINST ADMINISTRATIVE ACTION.
maliciously" set fire to or burn, carry off or destroy any barrack,
cock, crib, rick or stack of hay, corn, wheat, rye, barley, oats or grain
of any kind, or any trees, herbage, growing grass, hay or other
vegetables, etc. Now, although the misconduct described in the com-
plaint is not the misconduct described in this act, nevertheless the
question of their identity was colorably before the magistrate, and it
was his duty to decide it; and under the rule above formulated he is
not answerable to the person injured for his erroneous application of
the law to the case that was before him.
As to the other defendant, all he did was to make his complaint
on oath before the justice, setting forth the facts truly, and for such
an act he could not be held liable for the judicial action which ensued,
even if such action had been extrajudicial. But as the case was, as
we have seen, brought within the jurisdiction of the judicial officer,
neither this defendant nor any other person could be treated as a tres-
passer for his co-operation in procuring a decision and commitment
which were valid in law, until they had been set aside by a superior
tribunal.
Let the judgment be affirmed."
SECTION 34.-SAME-AGAINST ADMINISTRATIVE OFFI-
CERS, ERROR AND ILLEGALITY
MOSTYN v. FABRIGAS.
(Court of King's Bench, 1774. Cowp. 161.)
Lord MANSFIELD. This is an action brought by the plaintiff against
the defendant for an assault and false imprisonment; and part of the
complaint made being for banishing him from the Island of Minorca
to Carthagena in Spain, it was necessary for the plaintiff, in his dec-
laration, to take notice of the real place where the cause of action
5 See Queen v. Wood, 5 El. & Bl. 49 (1855), post, p. 534.
French Code of Civil Procedure, art. 505 :
Judges may be sued in the following cases :
(1) If there is malice, fraud, or corruption alleged to have been committed
in the course of the examination, or in rendering judgment.
(2) If the right to sue is expressly given by law.
(3) If the law declares the judges liable in damages.
(4) If there is denial of justice.
Decisions of German Imperial Court, vol. 38, p. 338:
A judge in deciding causes must not be exposed to the risk of being held
responsible for errors in rendering judgment. He may be held liable where
he perverts justice deliberately. Otherwise he would be denrived of the in-
dependence indispensably necessary to the performance of his functions.
6 The statement of facts and portions of the opinion are omitted.
Ch.)
281
ACTIONS TO RECOVER DAMAGES OR MONEY.
arose. Therefore he has stated it to be in Minorca, with a videlicet,
at London, in the parish of St. Mary le Bow, in the ward of Cheap.
Had it not been for that particular requisite, he might have stated it
to have been in the county of Middlesex. To this declaration the
defendant put in two pleas: First, "not guilty;" secondly, that he
was governor of Minorca by letters patent from the crown, that the
plaintiff was raising a sedition and mutiny, and that in consequence
of such sedition and mutiny, he did imprison him, and send him out
of the island, which as governor, being invested with all the priv-
ileges, rights, etc., of governor, he alleges he had a right to do. To
this plea the plaintiff does not demur, nor does he deny that it would
be a justification in case it were true; but he denies the truth of
the fact, and puts in issue whether the fact of the plea is true. The
plea avers that the assault for which the action was brought arose in
the island of Minorca, out of the realm of England, and nowhere else.
To this the plaintiff has made no new assignment, and therefore by
his replication he admits the locality of the cause of action.
Thus it stood on the pleadings. At the trial the plaintiff went into
the evidence of his case, and the defendant into evidence of his; but
on behalf of the defendant evidence different from the facts alleged
in this plea of justification was given to show that the Arraval of
St. Phillips, where the injury complained of was done, was not within
either of the four precincts, but is a district of itself more immediately
under the power of the governor, and that no judge of the island can
exercise jurisdiction there, without a special appointment from him.
Upon the facts of the case the judge left it to the jury, who found
a verdict for the plaintiff, with £3,000 damages. The defendant has
tendered a bill of exceptions, upon which bill of exceptions the cause
comes before us; and the great difficulty I have had upon both the
arguments has been to be able clearly to comprehend what the ques-
tion is which is meant seriously to be brought before the court.
If I understand the counsel for Governor Mostyn right, what they
say is this : The plea of not guilty is totally immaterial, and so is the
plea of justification, because upon the plaintiff's own showing it ap-
pears, 1st, that the cause of action arose in Minorca, out of the realm;
2dly, that the defendant was governor of Minorca, and by virtue of
such his authority imprisoned the plaintiff. From thence it is argued
that the judge who tried the cause ought to have refused any evidence
whatsoever, and to have directed the jury to find for the defendant;
and three reasons have been assigned. One, insisted upon in the
former argument, was, that the plaintiff, being a Minorquin, is in-
capacitated from bringing an action in the King's courts in England.
To dispose of that objection at once, I shall only say it is wisely
abandoned to-day; for it is impossible there ever could exist a doubt
but that a subject born in Minorca has as good a right to appeal to
the King's courts of justice as one who is born within the sound of
Bow bell: and the objection made in this case, of its not being stated
282
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RELIEF AGAINST ADMINISTRATIVE ACTION.
on the record that the plaintiff was born since the treaty of Utrecht,
makes no difference.
The two other grounds are: 1st. That the defendant being gov-
ernor of Minorca, is answerable for no injury whatsoever done by
him in that capacity. 2dly. That the injury being done at Minorca,
out of the realm, is not cognizable by the King's courts in England.
As to the first, nothing is so clear as that to an action of this kind
the defendant, if he has any justification, must plead it; and there is
nothing more clear than that, if the court has not a general jurisdic-
tion of the subject-matter, he must plead to the jurisdiction, and can-
not take advantage of it upon the general issue. Therefore by the
law of England, if an action be brought against a judge of record
for an act done by him in his judicial capacity, he may plead that he
did it as judge of record, and that will be a complete justification. So
in this case, if the injury complained of had been done by the de-
fendant as a judge, though it arose in a foreign country where the
technical distinction of a court of record does not exist, yet sitting
as a judge in a court of justice, subject to a superior review, he would
be within the reason of the rule which the law of England says shall
be a justification; but then it must be pleaded. Here no such mat-
ter is pleaded, nor is it even in evidence that he sat as judge of a
court of justice. Therefore I lay out of the case everything relative
to the Arraval of St. Phillip's.
The first point, then, upon this ground, is the sacredness of the
defendant's person as governor. If it were true that the law makes
him that sacred character, he must plead it and set forth his commis-
sion as a special matter of justification, because prima facie the court
has jurisdiction. But I will not rest the answer upon that only. It
has been insisted, by way of distinction, that supposing an action
will lie for an injury of this kind committed by one individual against
another, in a country beyond the seas, but within the dominion of the
crown of England, yet it shall not emphatically lie against the gov-
ernor. In answer to which I say that for many reasons, if it did not
lie against any other man, it shall most emphatically lie against the
governor.
In every plea to the jurisdiction, you must state another jurisdic-
tion; therefore, if an action is brought here for a matter arising in
Wales, to bar the remedy sought in this court, you must show the
jurisdiction of the court of Wales; and in every case to repel the ju-
risdiction of the King's court, you must show a more proper and
more sufficient jurisdiction; for if there is no other mode of trial,
that alone will give the King's courts a jurisdiction. Now in this case
no other jurisdiction is shown, even so much as in argument. And if
the King's courts of justice cannot hold plea in such case, no other
court can do it. For it is truly said that a governor is in the nature
of a viceroy; and therefore locally, during his government, no civil
or criminal action will lie against him. The reason is because upon
Ch.7).
283
ACTIONS TO RECOVER DAMAGES OR MONEY.
process he would be subject to imprisonment.? But here the injury
is said to have happened in the Arraval of St. Phillip's, where with-
out his leave no jurisdiction can exist. If that be so, there can be no
remedy whatsoever, if it is not in the King's courts, because when he
is out of the government, and is returned with his property into this
country, there are not even his effects left in the island to be attached.
It does not follow from hence that, let the cause of action arise
where it may, a man is not entitled to make use of every justification
his case will admit of, which ought to be a defense to him. If he has
acted right according to the authority with which he is invested, he
must lay it before the court by way of plea, and the court will exer-
cise their judgment whether it is a sufficient justification or not. In
this case, if the justification had been proved, the court might have
considered it as a sufficient answer; and, if the nature of the case
would have allowed of it, might have adjudged that the raising a
mutiny was a good ground for such a summary proceeding. I can
conceive cases in time of war in which a governor would be justified,
though he acted very arbitrarily, in which he could not be justified
in time of peace. Suppose, during a siege or upon an invasion of
Minorca, the governor should judge it proper to send an hundred of
the inhabitants out of the island from motives of real and genuine
expediency; or suppose upon a general suspicion he should take people
up as spies; upon proper circumstances laid before the court, it would
be very fit to see whether he had acted as the governor of a garrison
ought, according to the circumstances of the case.
Therefore, in every light in which I see the subject, I am of opin-
ion that the action holds emphatically against the governor, if it did
not hold in the case of any other person. If so, he is accountable in
this court or he is accountable nowhere; for the King in council has no
jurisdiction. Complaints made to the King in council tend to remove
the governor, or to take from him any commission, which he holds
during the pleasure of the crown. But if he is in England, and holds
nothing at the pleasure of the crown, they have no jurisdiction to make
reparation, by giving damages, or to punish him in any shape for
the injury committed. Therefore to lay down in an English court of
justice such a monstrous proposition as that a governor, acting by
virtue of letters patent under the great seal, is accountable only to
God and his own conscience, that he is absolutely despotic, and can
spoil, plunder, and affect his Majesty's subjects, both in their liberty
and property, with impunity, is a doctrine that cannot be maintained.
In Lord Bellamont's Case, 2 Salk. 625, cited by Mr. Peckham, a mo-
tion was made for a trial at bar, and granted, because the Attorney
General was to defend it on the part of the King, which shows plainly
that such an action existed. And in Way v. Yally, 6 Mod. 195, Jus-
tice Powell says that an action of false imprisonment has been brought
*
*
7 See Hill v. Bigge, 3 Moore, P. C. 465, 481 (1841), contra.
284
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RELIEF AGAINST ADMINISTRATIVE ACTION.
here against a governor of Jamaica, for an imprisonment here, and
the laws of the country were given in evidence. The governor of
Jamaica in that case never thought that he was not amenable. He
defended himself, and possibly showed, by the laws of the country,
an act of the assembly which justified that imprisonment, and the court
received it as they ought to do. For whatever is a justification in
the place where the thing is done ought to be a justification where the
cause is tried.
I remember, early in my time, being counsel in an action brought by
a carpenter in the train of artillery, against Governor Sabine, who was
governor of Gibraltar, and who had barely confirmed the sentence of
a court-martial, by which the plaintiff had been tried, and sentenced
to be whipped. The governor was very ably defended, but nobody
ever thought that the action would not lie; and, it being proved at
the trial that the tradesmen who followed the train were not liable
to martial law, the court were of that opinion, and the jury accord-
ingly found the defendant guilty of the trespass, as having had a
share in the sentence, and gave £500. damages. *
Judgment affirmed.8
*
*
BASSETT v. GODSCHALL et al.
1
(Court of Common Pleas, 1770. 3 Wilson, 121.)
Action on the case for refusing to receive from plaintiff a certificate
of character tendered upon an application for a license to keep a com-
mon inn and alehouse.
WILMOT, Chief Justice. The legislature hath intrusted the justices
of peace with a discretionary power to grant or refuse licenses for
keeping inns and alehouses; if they abuse that power, or misbehave
themselves in the execution of their office or authority, they are an-
swerable criminally, by way of information, in B. R.' I cannot think
8 See Pollock, Torts, C. IV, 1, "Acts of State”; also Musgrove v. Chun
Teeong Toy, [1891) A. C. 272, 282, 283.
As to statutes for protection of officers, see Chitty, Pleading, I, 545, 540;
Public Authorities Protection Act, 1893, 56 & 57 Vict. c. 61.
Compare Martin V. Mott, 12 Wheat. 19, 6 L. Ed. 537 (1827), post, p. 348;
Wise y. Withers, 3 Cranch, 331, 2 L. Ed. 4.77 (180).
There seems to be no precedent in the United States for an action against
a chief executive (President or Governor) during his term of office to recover
damages for an alleged wrongful act done in his official capacity or in con-
nection with his office.
For such an action, brought after the expiration of the term of office, sce
Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,111 (1811), which was,
however, dismissed on a point of venue.
For actions against heads of departments, see Kendul v. Stokes, 3 IIow.
87, 11 L. Ed. 506 (1845), and Spalding v. Vilas, 101 U. S. 483, 16 Sup. Ct. 031,
40 L. Ed. 780 (1896); also 5 Ops. Attys. Gen. 759 (1823).
9 As to criminal liability, see Rex v. Williams, 3 Burr. 1317 (1702); People
V. Norton, 7 Barb. (N. Y.) 477 (1849).
Ch.7)
285
ACTIONS TO RECOVER DAMAGES OR MONEY.
a justice of peace is answerable in an action to every individual who
asks him for a license to keep an inn or an alehouse, and he refuses
to grant one; if he were so, there would be an end of the commis-
sion of the peace, for no man would act therein. Indeed, he is an-
swerable to the public if he misbehaves himself, and willfully, know-
ingly and maliciously injures or oppresses the King's subjects, under
color of his office, and contrary to law; but he cannot be answerable
to every individual, touching the matter in question, in an action. Ev-
ery plaintiff in an action must have an antecedent right to bring it;
the plaintiff here has no right to have a license, unless the justices
think proper to grant it, therefore he can have no right of action
against the justices for refusing it.
Judgment for defendants.10
PARTRIDGE v. GENERAL COUNCIL OF MEDICAL EDUCA-
TION AND REGISTRATION OF UNITED KINGDOM.
(Supreme Court of Judicature, Queen's Bench Division, 1890.
25 Q. B. D. 90.)
Action for unlawfully and maliciously causing the plaintiff's name
to be removed from the register kept under the Dentists' Act, 1878.
Lord ESHER, M. R. In this case an action is brought against the
defendants for unlawfully and maliciously removing the name of the
plaintiff from the dentists' register. I think that the learned judge
wlio tried the case must be taken to have found that the defendants
acted without malice. It is perfectly clear to my mind that his finding
is right, and that in doing what they did they were not acting mali-
ciously, but endeavoring to do their duty to the public and their pro-
fession. But nevertheless, it it clear that, in doing what they did on
this occasion, they did not take the course which they ought to have
taken. They struck off the plaintiff's name without communicating
with him or giving him an opportunity of being heard. When the
case came before us on the previous occasion,11 the question then
being whether he was wrongly struck off the register, we said they
liad not taken the proper steps, and they must put his name on the
register again, without prejudice to the question whether on subse-
quent inquiry there might appear to be proper grounds for striking
him off under section 13 of the act. But the question, upon an ap-
plication for a mandamus to have his name reinserted on the register,
whether they acted rightly in striking him off, in the sense that they
took the proper steps, is quite a different question from the question
whether an action will lie against them, in the absence of malice, for
wrongfully removing his name.
10 Accord: Halloran y. McCullough, 68 Ind. 179 (1879).
11 See Ex parte Partridge, 19 Q. B. D. 467 (1887).
286
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RELIEF AGAINST ADMINISTRATIVE ACTION.
The question now is whether such an action will lie? I think the
defendants were intending, in what they did, to do what they were
entitled to do, viz., to perform the public duties imposed upon them
by the act for the protection of the public and also of the profession.
There are two sections, apparently, which are material to this ques-
tion, the eleventh and the thirteenth. It seems to me that the thirteenth
was the section under which they ought to have acted, if there was any
question of erasing the name of a person from the register for having
acted disgracefully in a professional respect. But I think that in
any case they bona fide intended to act under the act of Parliament
which gives them powers as to the register. That being so, the ques-
tion is whether they were acting merely ministerially. Whether they
were intending to act under section 11 only, or under section 13 as
well, if they were not so acting, it appears to me that in the absence
of malice they are protected from an action. If they were acting
under section 13, I think the functions they were so exercising were
clearly judicial, and not merely ministerial, and that they would,
therefore, not be liable to an action for the erroneous exercise of
those functions without malice. If they were intending to do what
they were authorized to do under section 13, but were advised to pro-
ceed under the wrong section, I think they would not be liable to an
action for acting erroneously under a wrong section of the act, as they
intended to act under the act and what they did was not merely min-
isterial,
But, assuming that they were not intending to exercise the func-
tions given by section 13 at all, but were proceeding solely under sec-
tion 11, without regard to those functions, what is it they have to do
under that section? The power given to them is a power to give a
special direction to the registrar. They have, then, given a special
direction to the registrar to erase the plaintiff's name. Is giving a
special direction to the registrar under that section merely a ministerial
act, to be done without the exercise of any discretion at all? I do not
think so. I think it is clearly discretionary. Now it appears to me
that it is a true proposition to say that, when a public duty is imposed
by act of Parliament upon a body of persons, which duty consists
in the exercise of a discretion, it cannot be said that the exercise of
that discretion is a merely ministerial act. If what the defendants did
cannot be considered to have been merely ministerial, then I think, for
the purposes of the question whether they are protected from an ac-
tion, it must be considered as judicial. It appears to me that a body
such as the defendants can only be made subject to an action for things
which they have done erroneously without malice in carrying out their
duties under the act, if it can be shown that they were acting merely
ministerially.
It is not necessary to go through the cases that have been cited on
the subject. They seem to me all to show that such an action as this
cannot be maintained, except where the duty intended to be exercised
Ch.7)
287
ACTIONS TO RECOVER DAMAGES OR MONEY.
is only ministerial. For these reasons it appears to me that this ac-
tion is not maintainable, and that the judgment of Hudleston, B., was
correct.12
SEAMAN v. PATTEN.
(Supreme Court of New York, 1805.
2 Caines, 312.)
On certiorari to the justices' court in the city of New York.
It appeared from the return that the action below was brought
against the now plaintiff to recover from him, as inspector general
of provisions, twenty-five dollars, for condemning, as unmerchantable,
some beef belonging to the present defendant. The record stated:
That at the trial the now plaintiff moved for a nonsuit, because the
barrel containing the beef had not been branded with the name of the
maker, according to the directions of the act; because, also, no malice
or corruption was proved. That these reasons were disallowed, be-
cause the court were of opinion, on the first point, that an offer by
the cooper, or his authorized agent, to brand the barrels, and a re-
fusal by the inspector to permit them to be branded, were equivalent
to a branding; and, on the second, because it was not necessary to
prove malice or corruption, to sustain the action, the inspector general
being liable for injuries arising from want of skill.
Error having been assigned on each of these grounds, the case now
came before the court.
LIVINGSTON, J., delivered the opinion of the court. In our opinion
the judgment rendered on this verdict is erroneous, and must be re-
versed.
Without denying the general principle (which is too well settled to
admit of controversy) that unless the Legislature provide for the
protection of officers of this description, they act at their peril, al-
though their conduct be bona fide, and according to the best of their
judgment, there are, in this case, sufficient marks of distinction to
justify our not adding it to the revolting precedents which are al-
ready to be found on this subject. In making use of this terin, I do
but little more than follow the example of most judges who have
been called on to enforce a rule which they admit to be a hard one,
and against the operation of which modern legislators, unless from
oversight, generally take care to guard. The whole court, in the
case of Warne v. Varley, 6 T. R. 443, seem solicitous to discover
12 Section 11 of the Dentists' Act provides that every registrar, shall in all
respects, in the exercise of his discretion and duty in relation to any register
under this act, conform to any orders made by the general council under this
act, and to any special directions given by the general council. Section 13
provides that the general council may cause inquiry to be made into the case
of a person alleged to be liable to have his name erased from the register, on
proof of conviction of a felony or misdemeanor, or of infamous or disgrace-
ful conduct.
288
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RELIEF AGAINST ADMINISTRATIVE ACTION.
some ground on which the defendant, who had acted fairly and bona
fide, might escape. This liability was first enforced against officers
who acted as volunteers, and generally received a portion of the spoil.
These were collectors and excise officers, who were neither bound
by oath, nor enjoined by law, to make seizures, but might do so or
not, as they pleased. Thus in Imlay v. Sands, 1 Caines, 566, decided
in February term, 1804, the defendant, who was collector of the port
of New York, in seizing a vessel, with a very valuable cargo, was
under no legal injunction to do so, and would have been entitled to a
very considerable share of the proceeds arising from confiscation.13
In such case there is no rigor in letting an officer act at his peril, and
in putting his justification on the event. But when persons in a public
capacity act upon oath, in matters, too, which require skill and ex-
perience, and in which men may honestly differ in opinion, it seems
cruel not to protect them when they conduct themselves with integrity,
and without abusing their authority, or manifesting any symptoms of
inalice.
But this alone, if the case of Warne v. Varley be a precedent, affords
no justification. Some other excuse, then, must be found for the
plaintiff, or he cannot escape. Let us, then, see whether, in the terms
of the law, an ample justification will not be found, and such a one
as the Court of King's Bench seemed willing to admit in the case
just mentioned. The defendant there pleaded that he had seized the
leather because, “in his judgment, the same was not well dried.” But
the act of Parliament had not given him authority to seize what, in
his judgment, was not sufficiently dried, but only generally to seize
leather of that description, without referring to his judgment at all.
If it had, Lord Kenyon would not have held him liable. “It seems
reasonable,” says he, “that if these searchers exercise their authority
bona fide, and only seize such leather as in their judgment ought to be
examined, they should be protected; but the act of Parliament af-
fords them no such protection.” From this mode of expression, as
well as from the reason of the thing, it is clear that, where the judg-
ment or opinion of the officer is expressly referred to by law as the
rule of his conduct, he cannot, and ought not, to be answerable for
an upright use of it, but is as much protected by a clause of this kind
as by those which are usually introduced for this purpose. This ref-
erence will be found throughout the law under which Seaman acted,
and must have been made to prevent his being harassed by demands of
this nature. Everything almost which, as inspector general, he is to
do, is to depend on his judgment or opinion. He swears "he will
faithfully and impartially, according to the best of his ability, perform
his duty, without any willful omission, neglect, or delay whatever.”
13 As to history of compensation of revenue officers, see U. S. V. Walker, 22
How. 299, 16 L. Ed. 382 (1859); also 1 Rev. St. N. Y. (1st Ed.) pp. 340, 356.
For early action of trespass against customs officers, see Hubert Hall,
Customs Revenue, II, 42.
Ch.7)
289
ACTIONS TO RECOVER DAMAGES OR MONEY.
i
Is it not a little extraordinary that, when the Legislature exact no
more of a man than an exertion of his best abilities, he should still
be responsible, merely because another may have more ability or
capacity than himself?
The fourth section authorizes him to remove without the city all
such beef and pork as shall appear to him to be in danger of spoiling,
etc. Will it be said that he would also be liable, if he should bona
fide order any of these articles to be reinoved, if it turned out that
they were in no danger of spoiling ? Shall it be his duty to remove
these articles, shall he swear that he will perform his duty, nay, shall
he be liable to a heavy penalty for neglect, and shall his own opinion be
made the only criterion of the necessity or propriety, and shall he not
dare to exercise it? So again, in the same section, he is to order beef
or pork, in a putrid state, to be removed, if in his opinion the removal
be necessary. Surely it would be a satisfactory defense to an action,
on this part of the statute, to say that the removal in his opinion was
necessary. Why vest such power in him, as a security for the health
of the city, if he be not to use it? If too latitudinary, the Legislature,
and not he, is to blame.
Again, by the first section he may remove certain provisions, if in
his judgment it be proper. The eleventh section, in like manner (and
this applies more immediately to the present action), declares that
the barrels, in which beef shall be repacked (which must, of course,
be judged of before they can be inspected), shall, in the opinion of
the inspector general, be every way strong, and tight enough to pre-
vent the pickle from leaking out. Now, if this be an action for not
inspecting the beef, and it can be no other, notwithstanding the in-
accuracy of the return, calling it an action for condemning the prop-
erty, which the inspector could not do, who can say that the plaintiff
was of opinion that the barrel was as tight and strong as it ought to
be? If he were not, it was his duty, however incorrect the opinion
may have been, to refuse its inspection; for it must be an incontro-
vertible position that when by law it is made the duty of a public
agent, however high or low his station, to do a thing, if in his opinion
certain requisites are complied with, he can never be liable for omit-
ting to act (which it is attempted to make him here), without proving
corruption, malice, or some misbehavior. It does not appear why
the beef was refused. It may have been for the very cause just men-
tioned, which would be a complete defense.
But if the inspector proceeded on the ground, as it would seem
he did, of the barrel's not being branded with the name of the person
who made it, he was also justifiable. The sixteenth section is explicit
on this point, and it is admitted no such brand appeared. An offer
to brand was not sufficient. It is idle to say that the inspector general
refused to let it be done. He had no control over the cooper, or the
cask. The defendant might have taken it away, and returned it prop-
ÈR.ADM.LAW-19
290
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RELIEF AGAINST ADMINISTRATIVD ACTION.
erly branded. On this point the justices were also mistaken. The
party, to entitle his beef to inspection, should have taken care to have
put it in the state required by law. Until that was done, the in-
spector had nothing to do with it, or with his offers. But if the cask
had been properly branded, the inspector had a right, by law, if he
thought proper for other reasons, to refuse its inspection, and this is
the ground on which we proceed.
There is yet another distinction between this action and those which
are generally brought against public officers. The latter are almost al-
ways actions for some tort, such as seizing the plaintiff's property,
or breaking into his house, or the like; whereas this is an attempt to
charge him, not for a sin of commission, but for one of omission. It
may well be doubted whether this alone would not justify our deciding
it on principles different from those which have heretofore governed,
in the cases referred to. But without pursuing this inquiry, our opin-
ion is that an officer, acting under a commission from government,
who is enjoined by law to the performance of certain things, if in his
judgment or opinion the requisites therein mentioned have been com-
plied with, and inhibited, under the like exercise of his own discre-
tion, from doing other things, who is sworn to discharge these duties
to the best of his ability, and exposed also to penalties, as well for neg-
ligence as for acting where he ought not, is not answerable to a party,
who may conceive himself aggrieved for an omission arising from mis-
take or mere want of skill, if there be no bad faith, corruption, malice,
or some misbehavior, or abuse of power. Nothing of the kind ap-
pearing here, the judgment must be reversed.
Judgment of reversal.14
LINCOLN v. HAPGOOD.
(Supreme Judicial Court of Massachusetts, 1814. 11 Mass. 350.) )
Case against the defendants, for that, when acting and presiding as
selectmen of the town of Petersham, at a meeting then duly convened
and holden for the election of a representative in May, 1812, they re-
fused the plaintiff's vote there offered, although a qualified voter, enti-
tled to vote in the said election, etc.
The refusal of the plain-
tiff's vote was admitted on the part of the defendants, and the cause
was left to the jury, with a direction from the judge to find a verdict
for the plaintiff, if his home and residence had been proved to be at
Petersham, notwithstanding his occasional absences at Belchertown,
14 As to inspectors, see note, 95 Am. St. Rep. 132 (1895); Nickerson v.
Thompson, 33 Me. 433 (1851); Gordon v. Livingston, 12 Mo. App. 267 (1882).
As to malice, see Gregory v. Brooks, 37 Conn. 365 (1870); Spalding v. Vilas,
161 U. S. 483, 16 Sup. Ct. 631, 40 L. Ed. 780 (1896).
Ch.7)
291
ACTIONS TO RECOVER DAMAGES OR MONEY.
and his being permitted to vote there, and actually voting there at the
April meetings. And the judge consented to reserve the question of
the plaintiff's qualification.
The judge also ruled that evidence of malicious and injurious inten-
tions was not necessary in this case, to entitle the plaintiff to recover
damages for the privation of his franchise by the act of the selectmen,
if their conduct had not proceeded from an unavoidable mistake of any
fact, uncertain in the nature of the proof upon which it depended, but
from a mistake of the law, they having undertaken to decide upon the
rights of the plaintiff; and upon this point also the case was reserved
by the judge. The jury returned a verdict for the plaintiff, which was
taken, subject to the opinion of the court upon the questions so re-
served.
PARKER, C. J.15 As to the first point reserved for the consideration
of the court, we are of opinion that the plaintiff had a legal right to
vote in the choice of representatives in Petersham.
But a more difficult question remains, and that is whether the de-
fendants in this case, who are public officers without reward, and upon
whom the difficult task is imposed by law of deciding suddenly upon
the qualifications of voters, are liable in damages for an error of judg-
ment only, when they have been guilty of no malice, and have exercised
an honest and fair judgment upon the question before them? The
case does not impute any corrupt motive, or even any negligence in
performance of duty, to the defendants. The presumption therefore
must be that they erred through ignorance.
This is not a new question with us, although it has never been formal-
ly decided by the whole court. In the case of Gardner v. Ward et al.,
2 Mass. 244, which is the first action of the kind in this state of which
we have a report, no question appears to have been made by the counsel
or the court as to the liability of the selectmen if they erroneously de-
cided against the plaintiff's rights, although his vote was rejected in
that case upon the ground of his alienage; a point which honest and
well-informed men, not lawyers, might determine wrongly with the best
possible motives.
In a like case, which occurred the succeeding year in the same county
(Killiam v. Ward, 2 Mass. 236), we find this objection to the action in
the argument of the counsel; but no reply to it from the other side,
and no notice taken of it by the court, from which we may infer that it
was not much relied on as an important point in the cause.
Since that time, however, actions of this kind having multiplied in
all parts of the commonwealth, in consequence of an increased interest
in the elections, it has become a matter of serious consideration wheth-
er the selectmen of towns, acting fairly in discharge of a duty imposed
upon them by law, shall be exposed to actions for a mere mistake of
the law, or misapprehension of facts; whether in truth they are not to
be viewed as judges, and so entitled to the common privilege of the
15 Only a portion of this case is printed.
292
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RELIEF AGAINST ADMINISTRATIVE ACTION.
judicial character, not to be punished, or to be responsible in damages,
for any consequence of a judgment merely erroneous.
I confess I have for some time maintained the affirmative upon this
question, and have, in one or two instances at nisi prius, given this
opinion, reserving a right to the plaintiffs to have the question decided
by the wliole court. But long reflection upon the subject, and the rea-
soning of those of my Brethren who have inclined to the opposite opin-
ion, liave finally satisfied me that I was mistaken, and that, however
hard such an action may be against selectmen, it is essential to the
rights of the citizen that it should be sustained.
The right of voting, in such a government as ours, is a valuable right;
it is secured by the Constitution; it cannot be infringed without pro-
ducing an injury to the party; and although the injury is not of a na-
ture to be effectually repaired by a pecuniary compensation, yet there
is no other indemnity, which can be had. In such a case, as in the case
of an injury to the reputation, and sometimes to the feelings, the good
of society, and security against a repetition of the wrong, require that
the suffering party should be permitted to resort to this mode of relief.
The selectmen of a town cannot be proceeded against criminally for
depriving a citizen of his vote, unless their conduct is the effect of cor-
ruption, or some wicked and base motive. If, then, a civil action does
not lie against them, the party is deprived of his franchise without any
relief, and has no way of establishing his right to any future suffrage.
Thus a man may be prevented, for his life, from exercising a consti-
tutional privilege, by the incapacity or inattention of those who are
appointed to regulate elections.
The clecision of the selectmen is necessarily final and conclusive as to
the existing election. No means are known by which the rejected vote
may be counted by any other tribunal, so as to have its influence upon
the election, or at least no practice of that kind has ever been adopted
in this state. There is, therefore, not only an injury to the individual,
but to the whole community; the theory of our government requiring
that each elective officer shall be appointed by the majority of the
votes of all the qualified citizens wlio choose to exercise their privi-
lege.
Now, if a party duly qualified is unjustly prevented from voting, and
yet can maintain no action for so important an injury, unless he is able
to prove an ill design in those who obstruct him, he is entirely shut
out from a judicial investigation of his right; and succeeding injuries
may be founded on one originally committed by mistake. He may thus
be perpetually excluded from the common privilege of citizens, without
any lawful means of asserting his rights, and restoring himself to the
rank of an active citizen. Such a doctrine would be inconsistent with
the principles and provisions of our free Constitution, and must give
way to the necessity of maintaining the people in their rights, secured
to them by the form of their government.
Ch.)
293
ACTIONS TO RECOVER DAMAGES OR MONEY.
This principle has not been perhaps precisely settled in England,
although I apprehend, in the case of Ashby v. White, 2 Ld. Raym.
938, the principle upon which this action is to be maintained was fully
recognized by Lord Holt, and afterwards by the House of Lords, who
reversed the judgment given by the three other judges of the King's
Bench, against the opinion of that eminent judge. The argument,
upon which that case turned, was that an actual injury had been done,
and that it was inconsistent with the character of the English laws that
there should be no remedy for a subsisting injury. No question seems
to have been made in that cause of malice in the returning officer ;
probably none was suggested. But the officer was finally holden to
be answerable in an action on the case, on the mere ground that he had
refused to receive the vote of a subject, who was entitled to vote.
This is exactly the present case, although perhaps we are not authorized
to say that malice or fraud, or corruption, was not proved in the case.
But it does not appear that any such motive was considered by the
judge as influencing the determination.
In a later case, however, of Drewe v. Coulton, cited in a note to the
case of Harman v. Tappenden et al., 1 East, 563, Mr. Justice Wilson
nonsuited a plaintiff in such an action, because it did not appear that
the defendants acted maliciously. The nonsuit being acquiesced in by
eminent counsel, it is fair to suppose that an action of [on] the case
cannot now be maintained in England for rejecting a vote, unless the
injury is proved to have been done maliciously.
But in England another remedy exists, which does not exist with us.
The electors there all vote viva voce. Their names are taken down by
the returning officer, as well those whose votes are received as those
who are not permitted to vote, and also the name of the candidate for
whom they would vote, of which a return is made to the House of Com-
mons. There a revision by a committee takes place; and the rejected
vote is counted, and has its effect upon the election, if it was unlawful-
ly rejected. But with us there is no such remedy; and without an
action there is no remedy at all, either for the immediate or any subse-
quent election.
But notwithstanding we deem it necessary that this action should be
supported, as the only mode of ascertaining and enforcing a right which
has been disputed, we do not think it ought to be a source of specula-
tion to those who may be ready to take advantage of any injury, and
turn it to their profit, to the vexation and distress of men, who have un-
fortunately been obliged to decide on a question sometimes intricate and
complicated, but who have discovered no disposition to abuse their pow-
er for private purposes. And we therefore think that juries should
always, in estimating the damages, have regard to the disposition and
temper of mind discoverable in the act complained of; and probably
the court would determine that a sum, comparatively not large, would
be excessive damages in a case where no fault, but ignorance or mistake,
was imputable to the selectmen.
294
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
On the other hand, in cases in which it should be apparent that there
was a willful deviation from duty, and a wanton rejection of a vote,
from party motives, or from personal hostility to the citizen whose
vote is refused, or even a negligent or inattentive examination of his
claim, exemplary damages would be required, as a compensation to the
injured party, and an expiation of the high and aggravated offense
against the civil and political privileges of the citizen.
Upon the whole, we see no better way than to leave cases of this
kind to the jury, under the direction of the court; nor have we any
doubt that a correct public sentiment will apply the remedy in each case,
proportionately to the offense, so that, on one hand, a man who has
been, without any fault of his own, deprived of a valuable privilege
should find indemnity and protection in the laws, and, on the other, that
men who are in.places of public trust should not be subject to too
severe a penalty for an involuntary failure in a proper performance of
their duty.
Judgment on the verdict. 16
JENKINS v. WALDRON.
(Supreme Court of New York, 1814. 11 Johns. 114, 6 Am. Dec. 359.)
In error, on certiorari, from a justice's court. Waldron brought an
action on the case against Seth Jenkins, Erastus Pratt, Daniel Clark
and William Coventry, the plaintiffs in error, as inspectors of the elec-
tion held in Hudson, in Columbia county, in April, 1811, for refusing
to receive his vote, as an elector, etc.
The plaintiff below stated, in his declaration, that the defendants
below were inspectors of the poll in the city of Hudson, at the general
election in 1811; that the plaintiff was duly qualified to vote for mem-
bers of the assembly; that he tendered his vote to the defendants;
and that they wickedly and designedly refused his vote, and would not
permit him to exercise his right of suffrage, to his damage, etc. The
defendants pleaded the general issue.
The following facts appeared in the justice's return, as proved and
admitted on the trial before him. The defendants below were duly
elected and sworn as inspectors at the general election in 1811, and act-
ed as such when the plaintiff below offered his vote at the poll for
members of assembly. The plaintiff is a black or colored man, and at
the time he offered his vote he tendered a certified copy of a certificate
of his being a free man, under the hand and seal of Samuel Edmonds,
one of the judges of the Court of Common Pleas of the county of
16 See Kinneen v. Wells, 144 Mass. 497, 11 N. E. 916, 59 Am. Rep. 105 (1887).
Accord : Jeffries v. Ankeny, 11 Ohio, 372 (1842): “When we reflect how
highly the privilege of voting is generally valued, and that the Legislature
has provided and the forms of law admit no other remedy than this action,
we unite in the opinion that a necessity exists for entertaining this remedy."
Ch.7)
295.
ACTIONS TO RECOVER DAMAGES OR MONEY.
Columbia, dated 9th April, 1811, which certificate was recorded in
the office of the clerk of the town of Livingston, and the copy was
certified by the clerk of that town. The plaintiff offered, at the same
time, to make any other proof of his qualification to vote that the in-
spectors might require, and to take the oaths required by law. The de-
fendants below rejected the plaintiff's vote, solely on the ground that
Samuel Edmonds, at the time of giving the certificate of freedom, was
not a judge according to law, and, therefore, not authorized to give the
certificate. The inspectors declared they did not require any other
proof of the plaintiff's qualification to vote, except a different certifi-
cate, or such a one as they should deem legal and valid.i?
SPENCER, J., delivered the opinion of the court.
It is not necessary to the decision of this cause to pronounce any
opinion on the question whether Judge Edmonds was a judge de jure or
de facto when he gave the certificate that the defendant had duly proved
himself to be a free man; for, admitting that Judge Edmonds was ei-
ther, this action, as laid, is not maintainable. It is not alleged or proved
that the inspectors fraudulently or maliciously refused to receive Wald-
ron's vote; and this we consider to be absolutely necessary to the main-
tenance of an action against the inspectors of an election.
The case principally relied on by the counsel for the defendant in
error is that of Ashby v. White, 2 Ld. Raym. 938. There the declara-
tion alleged that the rejection of Ashby's vote was done fraudulently
and maliciously, and, although the jury found the defendant guilty,
the judgment was arrested by three judges, in opposition to the opinion
of Chief Justice Holt. This judgment was afterwards reversed in the
House of Lords. The reasons for the reversal do not appear in the
report of the case; but the ground of the reversal is distinctly stated
in the resolutions of the Lords, in answer to the resolutions of the Com-
mons, reprehending the bringing the action and the judgment thereon.
The first resolution of the Lords states "that by the known laws of this
kingdom, every freeholder, or other person having a right to give his
vote at the election of members to serve in Parliament, and being will-
fully denied, or hindered so to do, by the officers who ought to receive
the same, may maintain an action in the Queen's courts against such
officer, to assert his right, and to recover damages for the injury.” 1
Bro. Parl. Cas. (1st Ed.) 49.
The case of Harman v. Tappenden and Others, 1 East, 555, and
Drewy v. Coulton, in a note to that case, clearly show that this action
is not maintainable, without stating and proving malice, express or im-
plied, on the part of the officers. In the case in the text, Lawrence, J.,
said, “There is no instance of an action of that sort maintained for an
act arising merely from error of judgment;" and he cited Mr. Justice
Wilson's opinion in Drewy v. Coulton with approbation. In that case
the suit was for refusing the plaintiff's vote. Justice Wilson considered
17 The statement of facts is abridged.
296
(Part 2
RELIET AGAINST ADMINISTRATIVE ACTION.
it as an action for misbehavior by a public officer in the discharge of his
duty, and that the act must be malicious and willful to render it a mis-
behavior; and he held that no action would lie for a mistake in law.
In speaking of the case of Ashby v. White, he considered it as having
been determined by the House of Lords on that ground, from the reso-
lutions entered into by them. The whole of Judge Wilson's reason-
ing is clear, perspicuous and irresistible; and is fully confirmed in Har-
man v. Tappenden. It would, in our opinion, be opposed to all the
principles of law, justice and sound policy to hold that officers, called
upon to exercise their deliberative judgments, are answerable for a mis-
take in law, either civilly or criminally, when their motives are pure,
and untainted with fraud or malice.
Judgment reversed.18
WHEELER V. PATTERSON.
(Superior Court of Judicature of New Hampshire, 1817. 1 N. H. 88, 8 Am.
Dec. 11.)
Case against the defendant for illegally and maliciously rejecting
the plaintiff's vote for Governor of this state, at a town meeting in
Temple, March 12, 1816, the defendant being moderator of the meet-
ing, and the plaintiff legally entitled to vote.
The cause was tried in this county at the last April term upon the
general issue, when it was satisfactorily proved that the plaintiff was
legally entitled to vote for Governor, and that his vote had been re-
fused by the defendant, who was inoderator of the meeting, as al-
leged in the declaration; but the court directed the jury that they
ought not to find a verdict for the plaintiff, unless they believed that
the defendant had refused the vote inaliciously, and from improper
motives, and under this direction the jury returned a verdict for the
defendant.
The plaintiff moved the court to grant a new trial on the ground
of a misdirection in thus instructing the jury, and the cause was con-
tinued to this term for advisement.
RICHARDSON, C. J.19 It seems that an action of this description
cannot be maintained in England, without alleging and proving malice.
Ashby v. White, 2 L. Raymond, 938; 6 Mod. 45; 1 East, 555, 563,
note; 1 Bro. Par. Cas. 49. The law is settled to be the same in New
York. Jenkins et al. v. Waldron, 11 Johns. 114, 6 Am. Dec. 359.
18 Accord : Carter v. Harrison, 5 Blackf. (Ind.) 138 (1839); Rail v. Potts,
8 Humph. (Tenn.) 225 (1847); Gordon v. Farrar, 2 Doug. (Mich.) 411 (1847):
Peavey V. Robinson, 48 N. C. 339 (1856); Perry v. Reynolds, 53 Conn. 527, 3
Atl. 555 (1885).
With reference to the case of Ashby v. White, 2 La. Raym. 938 (1703), see
Campbell's 'Lives of the Chief Justices. III, 41-45.
See statute of Illinois (Act Feb. 12, 1849, p. 75, $ 20), allowing action on the
case for refusal of vote, damages not to exceed $500, since repealed.
19 Only a portion of the opinion by Richardson, C. J., is printed.
Ch. ?) -
297
ACTIONS TO RECOVER DAMAGES OR MONEY.
*
*
*
But in Massachusetts it has been solemnly decided to be otherwise,
and their courts hold that those who reject the vote of a qualified
elector are liable, although not chargeable with malice. Lincoln v.
Hapgood, 11 Mass. 350.
But, notwithstanding we entertain the most entire respect for the
decisions of that court, we have not been able, after the most mature
reflection, to adopt their opinion upon this subject.
It is true that moderators may decide wrongly with the best inten-
tions, and then the party will be without remedy. And so may a
court and jury decide wrongly, and then the party will also be with-
out remedy. Perfect justice in all cases never was and never will
be administered in any human tribunal, and yet human tribunals must
be intrusted with the ultimate decision upon our most important
rights. So long as moderators act honestly and conscientiously, 110
great injustice will be done, even if they be intrusted to decide finally
upon the rights of electors. If those rights, however, shall be found
not to be sufficiently secure in the hands of inoderators, the Legis-
lature can provide further remedy; but to use the language of the
Supreme Court of New York, on this subject, "it would in our opin-
ion be opposed to all the principles of law, justice, and sound policy
to hold that officers, called upon to exercise their deliberative judg-
ments, are answerable for mistakes in law either civilly or criminally,
when their motives are pure and untainted with fraud or malice."
11 Johns. 121.
Judgment on the verdict.
EASTON v. CALENDAR.
(Supreme Court of New York, 1833. 11 Wend. 90.)
Error from the Onondaga common pleas.
Calendar sued Easton and two others, trustees of a school district,
in trespass, they having issued a warrant by virtue of which was
sold a cow belonging to him. The defendants justified under a vote
of a district meeting to raise by tax the sum of $168.75 to repair the
district schoolhouse. The trustees made out a tax list, purporting
to contain the names of the taxable inhabitants of the district, set-
ting opposite the name of each inhabitant the amount of his assess-
ment, and of tax to be paid by him. Calendar's name was on the
list, the amount of tax to be paid by him was set down at $11.59, and
the whole amount of tax to be paid in the district, according to the
list, was $177.65. The warrant issued by the trustees directed the
collector to “collect from each of the inhabitants in the annexed tax
list named the sum of money set opposite to his or her name in said
list, and within thirty days after receiving this warrant to pay the
amount thereof, collected by you (retaining five per cent. for your
298
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
fees), into the hands of the trustees, etc. It was proved on the part
of the plaintiff that the names of three individuals who lived in the
district were not on the tax list, and those individuals owned farms
situate in the district. On the part of the trustees, it was proved
that there were other individuals, besides those named on the tax list,
who resided in the district and whose names were not on the list;
but the witnesses could not say whether they were or were not tax-
able.
The suit was commenced before a justice by summons, which was
served personally on two of the defendants, viz., S. Favor and J. Eas-
ton, and by copy on Everson, the third defendant. On the return of
the summons, Everson did not appear. The other two defendants
did appear, and joined issue with the plaintiff, which issue was sub-
sequently tried before the justice, and judgment rendered in favor
of the defendants for costs. The plaintiff sued out a certiorari to
the Onondaga common pleas, which court reversed the judgment of
the justice, and rendered judgment for the costs of prosecuting the
certiorari in favor of Calendar against Favor, Easton and Everson.
Whereupon the defendant sued out a writ of error.
NELSON, J. The inhabitants of a school district are empowered to
lay a tax on themselves for specified purposes (1 Rev. St. p. 478, S
61), and the trustees of such district are required to make out a tax
list whenever a district tax is voted, containing the names of all the
taxable inhabitants residing in the district at the time of making out
the list, and the amount of tax payable by each inhabitant, set op-
posite to his name, and to annex to such tax list a warrant directed
to the collector of the district for the collection of the sums in such
list mentioned, with five cents on each dollar thereof for his fees (Id.
p. 481, § 75). The collector is allowed five cents on every dollar
collected and paid over by him (Id. p. 486, § 104). On failure to
collect the tax upon the warrant, the trustees in certain specified
cases may sue and recover it in their official names. The better opin-
ion, I think, is that the collector is not entitled to the five per cent.
upon his fees, and that the apportionment made by the trustees in
this case was erroneous in this respect. The trustees are to make
out the tax list of every district tax voted, and the amount of such
tax payable by each inhabitant is to be set opposite his name. The
warrant is to direct the collector to collect the sums in such list, with
(that is, in addition) five cents on each dollar thereof for his fees.
This percentage he is entitled to only on condition of collecting and
paying it over; if he does not collect the tax, in certain cases the trus-
tees may sue for and recover it; but surely they are not entitled to the
collector's fees, which would or might be recovered, if the percentage
is included in the apportionment.
But conceding this to be error on the part of the trustees, and
also that they erred in omitting to insert the names of all the taxable
inhabitants, does it follow that they are trespassers? Their duties are
Ch.4)
299
ACTIONS TO RECOVER DAMAGES OR MONEY.
various. Some partake of a judicial and some of a ministerial char-
acter, while in others they may be considered as actors or parties.
Baker v. Freeman, 9 Wend. 42, 24 Am. Dec. 117. Their acts and
proceedings should therefore be tried and tested by principles well
settled, which define with precision and justice their duties and re-
sponsibilities. The range of their official acts imposed upon them by
law embracing these different functions, it is the duty of the court
to separate them, and apply to each, as it comes up for consideration,
its appropriate principle. The business of these officers is often
perplexed and embarrassing, and their conduct, when acting in good
faith and within the scope of their powers, should be viewed with
indulgence by the court, and deserves the most liberal intendment
of the law. The apportionment of the tax voted among the taxable
inhabitants is, in my opinion, to a certain extent, in the nature of a
judicial act. The trustees are to determine who are and who are
not taxable within the provisions of the statute; they are then to ap-
portion to each his share according to the value of his real and per-
sonal estate and in some cases they are obliged to fix such value.
Sections 76, 77, 78, page 482, show that the duty of ascertaining
the taxable inhabitants is involved in considerable difficulty, and that
an error in this respect may arise as well from a misjudgment of the
law on the part of these officers as a mistake in fact. They are bound
to act, and to exercise their best judgment in the apportionment of the
tax; and if they confine themselves within the limits of the statute,
though they may err in point of law or in judgment, they should
not be either civilly or criininally answerable, if their motives are
pure. This is the rule applicable to public officers, bound to exer-
cise their deliberative judgments in the discharge of their official
duties, and is applicable to all inferior magistrates, and others called
to the performance of functions in their nature and character judicial,
while acting within their jurisdiction and the scope of their powers.
The liabilities and immunities of these officers were examined by
the Chief Justice in Cunningham v. Bucklin, and the principles upon
which they are held personally liable for official errors correctly
stated. 8 Cow. 184, 18 Am. Dec. 432, and cases there cited.
The plaintiff below was not without his remedy (1 Rev. St. 487, $$
110, 111); and the amendment of the law, 20th April, 1830, provides
that any person conceiving himself aggrieved in consequence of any
decision made by the trustees of any district in paying any teacher,
or concerning any other matter under the present title (which includes
the whole of the school act), may appeal to the superintendent of
common schools, whose decision shall be final. This provision was
intended for what it practically is, a cheap and expeditious mode of
settling most, if not all, of the difficulties and disputes arising in
the course of the execution of the law. A common-law certiorari
would no doubt lie from this court to the trustees, to bring up and
correct any erroneous proceeding not concluded by an adjudication
300
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
of the superintendent, or in a case where his powers were inadequate to
give the relief to which the party was entitled.
I admit the soundness of all the principles relied on in the argument
of the defendant in error, namely, that when a special power is
granted by statute affecting the property of individuals, it must be
strictly pursued, and appear to be pursued on the face of the pro-
ceedings; that when a statute confers a new power upon justices of
the peace, they must proceed in the mode prescribed by the statute;
that inferior jurisdictions, not proceeding according to the course
of the common law, are confined strictly to the authority given them,
and can take nothing by implication, but must show their power ex-
pressly given in every instance. Gilbert v. Columbia Turnpike Co., 3
Johns. Cas. 107; Bigelow v. Stearns, 19 Johns. 42, 10 Am. Dec. 189;
Jones v. Reid, 1 Caines, 594. These are wholesome principles, and
should never be overlooked in determining the duties or reviewing the
proceedings of subordinate tribunals.
But what is the remedy? Does every departure from the statute,
or error in the course of the proceedings under it, necessarily make
the officer and all concerned trespassers? Clearly not. Where the
party or inferior magistate, or any one acting in that character, ex-
tends the power of the court or statute to a case to which it cannot
be lawfully extended, they become trespassers, and are amenable to
the party aggrieved as such. Suydam & Wyckoff v. Keys, 13 Johns.
444, is an illustration of this principle. There the trustees of a school
district apportioned a tax, and directed the collector in the warrant to
collect it from the plaintiffs, who were not liable to be taxed in the
district, and it was correctly held that, so far as the trustees were
concerned, they had no jurisdiction, and were trespassers.
with Judge Marcy, in Savacool v. Boughton, 5 Wend. 177, 21 Am.
Dec. 181, that the decision in that case, subjecting the collector as a
trespasser, cannot be supported; but there can be no doubt the trus-
tees were trespassers upon established principles.
Where the magistrate or officer lias jurisdiction of the subject-
matter, and errs only in the exercise of it, his acts are not void, but
voidable, and the only remedy is by certiorari or writ of error. The
books are full of illustrations of this principle. Henderson v. Brown,
1 Caines, 90, 2 Am. Dec. 164, is one. There it was held by a majority
of the court that an error by the assessors, under the act of Congress
of 19th July, 1798, in assessing the new theater in the city of New
York as a dwelling house, did not subject the collector as a tres-
passer for entering and collecting the tax, on the ground that the as-
sessors had jurisdiction of the subject matter, and the error
one of judgment in the lawful exercise of it. Thompson and Rad-
cliff, Justices, dissented, and held the assessors and collector liable,
contending the former had exceeded their authority in making the as-
sessment. The doctrine of the majority of the court has been since
repeatedly recognized and applied. In Butler v. Potter, 17 Johns.
I agree
was
Ch.7)
301
ACTIONS TO RECOVER DAMAGES OR MONEY.
145, it was held, where a justice has no jurisdiction whatever, and un-
dertakes to act, his acts are coram non judice and void; but if he
lias jurisdiction, and errs in the exercise of it, his acts are voidable
only. Griffin v. Mitchell, 2 Cow. 548; Colvin v. Luther, 9 Cow. 64.
I may add, the case of Henderson v. Brown is an authority to show
that the proceedings of the trustees in making the assessment in this
case are quasi judicial.
Without pursuing the examination further, I am satisfied trespass
will not lie against the defendants below, and the judgment of the
common pleas should be reversed. 20
Judgment reversed.21
*
DOWNER v. LENT.
(Supreme Court of California, 1856. 6 Cal. 94, 05 Am. Dec. 489.)
Appeal from the superior court of the city of San Francisco
The complaint sets forth that the plaintiff was duly appointed and
qualified as a pilot for the port of San Francisco on June 17, 1854;
that on the 27th of July following the defendants, who in the meantime
had been appointed and qualified as the board of pilot commissioners,
and acting as such board, notified plaintiff to surrender his license,
and on the 8th of August following published in a San Francisco news-
paper the following notice:
"Consignees' Notice.—To Shipmasters and Consignees: Notice is
hereby given that Capt. Thomas P. Downer is no longer authorized
to act as pilot for this port.
“Per order of the Pilot Commissioners.
“August 8, 1854.”
"James M. Wilson, Secretary.
All of which the complaint, in a second count, alleges was done by
defendants wrongfully and maliciously, and with knowledge of plain-
tiff's rigits, with intention to injure plaintiff and to deprive him of the
benefits and emoluments of his franchise, and to his damage and in-
jury in the sum of $2,500, for which sun he prays judgment.
No malice is averred in the first count. The defendants demurred on
the ground that the complaint did not state facts sufficient to constitute
a cause of action-specifying, among other grounds of objection, that
the defendants were not liable in their individual capacity for the ex-
ercise of their discretion as a board of pilot commissioners, and that
it appeared by the complaint that the acts complained of were done by
defendants as such board.
20 The rest of the opinion is omitted.
21 Compare Mygatt v. Washburn, 15 N. Y. 316 (1857), and Dorn v. Backer,
61 N. Y. 261 (1874), cited and commented on iu McLean v. Jephson, 123 N. Y.
142, 25 N. E. 409, 9 L. R. A. 493 (1990), post, p. 556; also, Rooke v. Withers,
5 Coke Rep. 99b (1598); Stetson v. Kempton, 13 Mass. 272, T Am. Dec. 145
(1816), post, p. 334.
302
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
The demurrer was overruled, and the defendants answered. The
cause was tried before a jury, who found a verdict for the plaintiff
for $2,000. Defendants moved for a new trial, which was denied, and
judgment entered upon the verdict. Defendants appealed.
The opinion of the court was delivered by Mr. Justice HEYDENFELDT.
Mr. Chief Justice MURRAY and Mr. Justice TERRY concurred.
It is beyond controversy that the power of the board of pilot com-
missioners is quasi judicial, and they are not civilly answerable. They
are public officers to whom the law has intrusted certain duties, the
performance of which requires the exercise of judgment. They are
unlike a ministerial officer, whose duties are well defined, and who
must fail to execute them properly at his own peril.
Whenever, from the necessity of the case, the law is obliged to trust
to the sound judgment and discretion of an officer, public policy de-
inands that he should be protected from any consequences of an er-
roneous judgment.
The court erred in refusing to sustain the demurrer to the declara-
tion, and the judgment is reversed.
GILLESPIE V. PALMER.
1
*
(Supreme Court of Wisconsin, 1866. 20 Wis. 544.)
DOWNER, J. 22 * * * It is contended by the respondents that
the complaint is defective because it does not aver malice on their part
in rejecting the vote. Chapter 7, Rev. St., prescribes the duties of the
respondents as inspectors, and they are, in substance, that it shall be
the duty of each inspector to challenge every person offering to vote,
whom he shall know or suspect not to be duly qualified as an elector.
One of the inspectors may then administer to the person offering to
vote an oath that he will truly answer such questions as shall be put
to him touching his residence and qualifications as an elector. If the
person refuse to take the oath, or to answer any of the questions put to
him, his vote is to be rejected; but if he take the oath and answer the
questions, however false may be his answers, and however clearly they
may show that he has no right to vote, and he still insists upon voting,
it is their duty to tender to him the oath prescribed in section 36 of
the act,23 and, if he takes it, to receive his vote.
If he swears
falsely, or votes without the requisite qualifications, he may be, on
conviction, punished. But if he takes the oaths, and answers the
22 Only a portion of the opinion is printed.
23 The oath is to the effect that the person is 21 years of age, that he is a
citizen of the United States, or has declared his intention, etc., that he has
resided in the state one year next preceding the election, that he is a resident.
of the town or ward as the case may be, that he has not voted at the election,
and has not made, or become interested in, any bet or wager depending upon
the result of the election.
Ch.7)
303
ACTIONS TO RECOVER DAMAGES OR MONEY.
questions put, there is no discretion with the inspectors. They are
mere ministerial officers; certainly far from being judicial. The
registry act provides in substance that any one may have his name
registered as a voter upon taking the same oaths and giving the same
information required for voting.
If the inspectors are mere ministerial officers, then we see no
good reason why the general principle of law, that a ministerial of-
ficer is liable for a wrong done by him acting in his official character,
though without malice, should not be applied. It is held otherwise,
however, in England, in New York, and some other states. The rea-
son of these decisions appears to be that the inspectors of elections
are intrusted with a discretionary authority, and are quasi judicial
officers. In Massachusetts and Ohio it is held the action will lie with-
out malice. Lincoln v. Hapgood, 11 Mass. 350; Blanchard v. Stearns,
5 Metc. (Mass.) 298; Harris v. Whitcomb, 4 Gray (Mass.) 433;
Jeffries v. Ankeny, 11 Ohio, 373; Anderson v. Millikin, 9 Ohio St.
568. Some of these decisions are based partly on the state statute
law regulating elections, as being different from the Englislı law, but
mainly upon the necessity of protecting the highly valued privilege
of voting when the law has provided no other remedy. We adopt
the rule of these decisions. 24
MCCORD V. HIGH.
(Supreme Court of Iowa, 1868. 24 Iowa, 336.)
The petition of plaintiff shows that he is the owner of certain lands
in Black Hawk county, through which a certain stream of water called
Spring creek flows; that the stream, in its natural channel, meanders
throu plaintiff's land and flows off it near where it enters thereon;
that a public highway crosses the stream at its entrance upon plaintiff's
land; that defendant, acting as road supervisor, “willfully and mali-
ciously intending to injure the property of plaintiff," erected across
said creek, in said highway, a certain obstruction whereby a great por-
tion of the water in said stream was diverted from its natural channel
and caused to flow in an artificial channel away from the land of peti-
tioner, which was used as a pasture; that plaintiff, in order to con-
fine said stream to its natural channel, filled up said artificial chan-
nel, but the defendant did "willfully, maliciously and fraudulently”
cause said artificial channel to be opened, and enlarged the same so that
the water would be diverted from the natural channel; that, on ac-
count of said obstruction erected by defendant, the greater part of the
water is diverted to said artificial channel, which by the action of the
24 Accord: Elbin v. Wilson, 33 Md. 135 (1870).
As to refusal to perform ministerial duty, see Amy v. Supervisors, 11 Wall.
136, 20 L. Ed. 101 (1870), post, p. 432; Strickfaden y. Zipprick, 49 Ill. 286
(1868).
304
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RELIEF AGAINST ADMINISTRATIVE ACTION.
water is becoming deeper and wider, and through which, in the course
of time, all the water of said stream will flow, unless said obstruction
erected by defendant shall be removed. The water, so diverted, does
not flow at all on plaintiff's land, but re-enters the stream at a point
not upon the same.
The defendant sets up as a defense that he was the road supervisor
of the district; that "in good faith, and according to his best judg-
ment, he caused said highway to be repaired” in the best manner he
was able, with the amount of means at his disposal, “in order to make.
the same” passable for the public; that no obstruction was erected
across said stream by him, and that no diversion was caused in the
flow of the stream; and denies the injury complained of by plain-
tiff.
On motion of defendant, the court instructed the jury as follows,
plaintiff excepting thereto: (1) That if the defendant, acting in the
discharge of his duties as road supervisor, made the obstruction com-
plained of, he is not liable therefor, unless the act was done mali-
ciously and without probable cause; and that malice must be shown
affirmatively. (2) That a public officer is not liable for errors of
judgment; that the public have claims upon him, and he is obliged
to act, and unless his acts are clearly malicious, and with the intention
to injure another, he is not liable therefor.
Under these instructions the jury rendered a verdict for defendant.
Plaintiff moved for a new trial on the ground that the law had been in-
correctly given to the jury. The motion was overruled, and plaintiff
appeals.25
DILLON, C. J. I have had in my own mind so much difficulty re-
specting the main question in this case, viz., the personal responsibil-
ity of the road supervisor, that I desire to state briefly why I assent to
a reversal of the judgment of the district court. If the act of the
supervisor which caused the injury were malicious, I should, of
course, entertain no doubt as to his liability.
But the doubt I have had respects his liability for injuries not
willfully or maliciously caused by him. That the road supervisor is
exempt from liability for certain mistakes of judgment, honestly made
in the performance of his official duties, I have no question. If his
acts be not strictly judicial, they are in certain cases (as, for example,
the kind of a bridge he will build or the requisite capacity of a culvert)
in the nature of judicial acts, and rest to some extent upon the same
principle. The supervisor is bound to accept his office or be fined.
He is bound to exercise his judgment as to the kind of improvements
he will make; and this may be influenced by the extent or amount of
means or resources at his command. He may not in many cases be
able to execute his best thought or judgment. To a certain extent,
he must be free to exercise his judgment without being liable to have
1
25 The statement is abridged, and the opinion of Beck, J., is omitted.
Ch.7)
305
ACTIONS TO RECOVER DAMAGES OR MONEY.
an action brought against him if his judgment should in a particular
case turn out to be faulty.
But private rights of property are also to be respected. A very
old and just maxim of the law is that, where there is a wrong, there
is a remedy. The law recognizes, as is very correctly stated in the
opinion of Mr. Justice BECK, as high a right of property in the water
course as in the soil. If an individual obstructs or diverts a water
course, the injury is actionable. So it is if done by a municipal cor-
poration. Whether the public officers of such corporation, who do
the work which occasions the damage in the course of their official
duties, are also liable, admits, in my mind, of more doubt.
The injury of which the plaintiff complains is actionable in its
character; but against whom shall the action be brought?
It cannot be brought against the road district of which the de-
fendant is supervisor, because, as was settled in White v. Road
District, 9 Iowa, 202, the road district is not, under our statute, liable
to be sued as a quasi corporation or otherwise. For the same rea-
son, it cannot be brought against the township.
And it would seem that under the decisions of this court (Wilson
v. Jefferson Co., 13 Iowa, 182; Brown v. Jefferson Co., 16 Iowa,
339; McCullom v. Black Hawk Co., 21 Iowa, 409; Bell v. Foutch,
21 Iowa, 129) the bridge or culvert in question, not being built by
the county officers or by direction of the county authorities, so far
as shown by the record, the county would not be liable for the injury
the plaintiff sustained from the obstruction or diversion of the water
course.
So, that, although the injury done the plaintiff is a direct invasion
of his rights of property, and actionable in its nature, he is without
remedy, unless it be against the defendant. In such a case, upon
principles of justice, the action should, I think, be held to lie against
the public officer.
And the principle involved in this holding, and which, upon the
whole, I believe to be sound, is this: That where a public officer,
other than a judicial one, does an act directly invasive of the private
rights of others, and there is otherwise no remedy for the injury,
such officer is personally liable, without proof of malice and an in-
tent to injure. If this is so, the court erred in its instructions to the
jury, and its judgment must be reversed.
Whether the supervisor would be liable if the plaintiff had a remedy
against the road district, township or county, I give no opinion.
The discretion which protects such an officer as the road super-
visor stops at the boundary where the absolute rights of property
begin. Suppose the plaintiff had a inill upon the stream, would it do
to hold that the road officers could, if they saw fit or judged best, en-
tirely obstruct or essentially diminish the water?
think not. And this view has the merit of protecting the rights
FR. ADM.LAW-20
306
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RELIEF AGAINST ADMINISTRATIVE ACTION.
of property without, as I think, placing these officers under any op-
pressive responsibility. Cases without merit against an officer who
had simply erred in judgment would not meet with any favor from
either courts or juries.
Reversed.26
LOWE v. CONROY.
(Supreme Court of Wisconsin, 1904. 120 Wis. 151, 97 N. W. 942, 66 L. R. A.
907, 102 Am. St. Rep. 983.)
Appeal from circuit court, Clark County.
Action by Jesse Lowe against T. F. Conroy. From a judgment
for plaintiff, defendant appeals. Affirmed.
Respondent was engaged in the business of conducting a meat
market in the city of Neillsville. Appellant is a physician residing
there, and was the city physician and health officer. On August 3,
1901, a steer of respondent's herd of cattle on his farm was found sick
26 Accord: Beyer v. Tanner, 29 Ill. 135 (1862). Tearney v. Smith, 86 111.
391 (1877). But see, Huey v. Richardson, 2 Har. (Del.) 206 (1837).
"It was held in Graves v. Otis, 2 Hill (N. Y.) 466, that trustees of a village
did not acquire jurisdiction to cut down a street when the petition, which the
statute required to be signed by a majority of those liable to be assessed for
the work, had been altered after it was signed by two of the signers, and
made to embrace the sidewalk in question—there not being a majority with-
out the two who signed before the alteration. This alteration might or might
not be such as to attract the attention of the trustees; and if it did, they had
no means of ascertaining when it was made, except by calling upon each of
those signing--a duty which ought not to be imposed upon officers who act
without compensation. It was said, if not decided, in People v. Commissioners
of Highways of Seward, 27 Barb. (N. Y.) 94, that commissioners of highways
did not acquire jurisdiction to lay out a highway unless all of the twelve per-
sons signing the petition were freeholders. In this case, again, the statute
makes no provision by which the commissioners can ascertain whether the
signers are or are not freeholders. The conveyance, if to any one or more of
them, may not be on record, or, if on record, may not in law and in fact con-
vey a freehold estate. Is it just that commissioners should be required at their
peril to ascertain the nature of the estate of each petitioner? If, in such case,
there is a want of jurisdiction, the proceeding should be reversed or annulled.
But the officer should not be held to be a trespasser, unless he knows or has
reason to know that he is acting without jurisdiction. In other words, the
proceedings are assailable for want of jurisdiction in a proceeding brought to
review or reverse them, but are not assailable for want of jurisdiction, in
an action against the officer, or other collateral proceeding." Porter v. Purdy,
29 N. Y. 106, 110, 111, 112, 113, 86 Am. Dec. 283 (1864).
See Daniels v. Hathaway, 65 Vt. 247, 251, 26 Atl. 970, 972 (21 L. R. A. 377)
(1893): "In view of the fact that selectmen may be required to serve without
compensation, their varied and uncertain duties, the duties imposed upon
other officers, and the statutes and authorities above cited, it is clear that it is
not the duty of selectmen, nor is it intended, that in the performance of their
official duties in respect to highways they shall superintend, in person, the
construction or repair thereof, or become laborers or operatives thereon. In
matters relating to highways they act as a board, and their duties are to a
certain extent judicial, or quasi judicial. It is their duty to seek information
as to the existence or nonexistence of certain facts, form a judgment, and
act accordingly. They are to determine whether other officers have refused
or neglected to perform their duty. If they find they have not, it is not their
Ch.)
307
ACTIONS TO RECOVER DAMAGES OR MONEY.
from an ailment unknown to him, but supposed to have resulted from
drinking water containing paris green. He called Dr. Brown, a
veterinary surgeon, who gave the steer an antidote for paris green
poisoning, but upon further examination informed respondent he
believed the steer was afflicted with anthrax, and that another ani-
mal of the herd showed symptoms of anthrax. The steer died about
8 o'clock in the evening of the same day. Respondent and his son
flayed him, then buried the carcass, and placed the hide on others
in the basement of his meat market. Dr. Roberts, the state veter-
inarian, arrived at Neillsville the following morning, and with re-
spondent visited the place where the steer had died. Dr. Roberts pro-
cured some blood from the spot pointed out by respondent as the
place where the steer had been flayed. This specimen of blood was
mounted on microscopic. slides by appellant's brother, a doctor at
Neillsville, who examined it microscopically, and concluded it con-
tained the bacilli of anthrax. The same slide was thereafter ex-
amined microscopically by Dr. Russell, the state bacteriologist, who
reported to appellant that, so far as could be ascertained from the ex-
duty to order repairs; but if they find there has been a refusal or neglect
on the part of other officers, or an absence of other officers, it is their duty
to determine what repairs are necessary, where they are most needed, where
the means at their command can be most judiciously expended, what dangers
ought to be guarded against, determine whether there are insufficiencies, and,
if they find there are, to adopt plans for building or repairing the same, award
contracts for the work, or order the same repaired upon the credit of the
'town. The performance of these duties requires the exercise of judgment,
and for the exercise of this judgment, or an omission to exercise such judg-
ment as some other authority may think they ought to have exercised, they
are not responsible to an individual. The exercise of these powers is discre-
tionary, to be exercised or withheld according to the judgment of a ma-
jority of the board as to what is necessary and proper. Discretionary power
is, in its nature, independent, and to make those who wield it liable to be
called to account by some other authority is to take away discretion and de-
stroy independence. Discretion to a certain extent implies judicial functions ;
and when officers act in such a capacity they are not liable to any private
person for a neglect to exercise these powers, nor for the consequence of a
lawful exercise of them where no corruption or malice can be imputed, and
they keep within the scope of their official duties and authority. It is pot
enough to charge or show that they omitted to act when they ought to have
done so, or that their decisions were erroneous. Yealy v. Fink, 43 Pa. 212,
82 Am. Dec. 556; McConnell v. Dewey, 5 Neb. 389; Downer v. Lent, 6 Cal.
94, 65 Am. Dec. 489; Waldron v. Berry, 51 N. H. 136; Stewart v. Southardi,
17 Ohio, 402, 49 Am. Dec. 463; Dunlap y. Knapp, 14 Ohio St. 64, 82 Am. Dec.
468; Lynn V. Adams, 2 Ind. 143."
Upon the question of liability for injury resulting from the neglect of
official duties, see further, Hover v. Barkhoof, 44 N. Y. 113 (1870), liability for
defective highway recognized where there are funds for repair; Bennett v.
Whitney, 94 N. Y. 302 (1884); Hathaway v. Hinton, 46 N. C. 243 (1853) (im-
plied recognition by statute); Skinner V. Morgan, 21 Ill. App. 209 (1886);
Worden v. Witt, 4 Idaho, 404, 39 Pac. 1114, 95 Am. St. Rep. 70 (1895), with
note, liability denied ; 1 Beven on Negligence (2d Ed.) P. 398; South v. Mary-
land, 18 How. 396, 15 L. Ed. 433 (1855), sheriff not liable for default as con-
servator of the peace, because his duty is only to the public. So State, to
Use of Cocking, v. Wade, 87 Ma. 529, 40 Atl. 104, 40 L. R. A. 628 (1898).
But see Asher V. Cabell, 50 Fed. 818, 1 C. C. A. 693 (1892), and State of In-
diana v. Gobin (C. C.) 94 Fed. 48 (1899), duty of sheriff toward person spe-
cially placed in his custody.
308
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RELIEF AGAINST ADMINISTRATIVE ACTION.
amination, the specimen disclosed the presence of the bacilli of
anthrax. Appellant was absent from Neillsville August 3d and 4th.
Dr. Roberts, the state veterinarian, left Neillsville August 4th, giving
directions to appellant's brother to have the herd quarantined until
his return. He returned August 7th, vaccinated the herd supposed
to have been exposed, repeated this treatment August 19th, and then
ordered the quarantine of the herd and pasture removed. On Monday
morning, August 5th, appellant returned to Neillsville, was informed
of these occurrences, held a consultation with the mayor of the city
and chairman of the city board of health and the city attorney; later
in the day received instructions from the secretary of the state
board of health to destroy any liides which had been exposed, and
disinfect the shop and premises if exposed to anthrax infection.
Upon this and other information obtained by appellant he believed
the steer died from anthrax, and that respondent's shop and some
hides and beef in respondent's slaughter house had been exposed to
this dangerous and infectious disease. He issued a written order
August 5th, and directed Dr. Brown, as deputy health officer, to serve
it on respondent. This order notified and directed respondent to
remove the hides from the basement of his premises, and destroy
them, and the beef of a heifer which respondent and his son had
butchered and prepared for the market on the morning after flaying
and burying the diseased steer was also to be destroyed. This heifer
was the same animal that Dr. Brown had pointed out to respondent
as having symptoms of anthrax. Respondent refused to comply with
this order, and thereafter on the same day the hides and beef were
burned under the supervision of the city mayor, pursuant to the order
of August 5th.
It appears that anthrax is one of the most virulent and deadly
diseases known to science, and infectious and epidemic in character
to a high degree. Upon the trial the court found that appellant
acted in good faith in the discharge of what he deemed his duty as
city physician and health officer; that he quarantined respondent's
meat market premises; that he had good cause to believe the base-
ment of the premises was a source of filth and sickness; that he
ordered the destruction of the hides and beef which he believed had
been exposed to the infection, and that this property was of a value
of $239.70. The jury found that the steer was not in fact afflicted
with any dangerous and contagious disease, and that appellant had no
probable cause to believe that the steer was so afflicted. The court
ordered judgment in respondent's favor, and awarded him judgment
for the value of the hides and beef and for costs. This is an appeal
from that judgment.
SIEBECKER, J. (after stating the facts). The appellant, as a health
officer of the city of Neillsville, seeks to justify the destruction of re-
spondent's property upon the authority vested in the board of health
for the adoption of such measures to abate nuisances and remove
Ch.7)
309
ACTIONS TO RECOVER DAMAGES OR MONEY.
K
*
sources of filth and causes of sickness as may be deemed most
effectual to preserve the public health. By section 1411, Rev. St.
1898, it is provided that every town, village, and city board of health
"may take such measures and make such rules and regulations as
they may deem most effectual for the preservation of the public
health. They may appoint as many persons to aid them in the exe-
cution of their powers and duties as they may think proper,
examine into all nuisances, sources of filth and causes of sickness
and make such rules and regulations respecting the same as they may
judge necessary for the protection of the public health and safety
of the inhabitants." Section 1412, Rev. St. 1898, prescribes as a
part of the health officer's duty: “Upon appearance of any danger-
ous or contagious disease in the territory within the jurisdiction of the
board of which he is a member to immediately investigate, all the
circumstances attendant upon the appearance of such disease," and
"at all times promptly to take such measures for the prevention,
suppression and control of any such disease as may in his judgment be
needful and proper, subject to the approval of the board of which he
is a member." By section 1414, Rev. St. 1898, boards of health are
given authority to order nuisances and causes of sickness removed
from private property by the owner or occupant, and upon his re-
fusal or neglect to comply the board may cause its removal, and re-
cover the expense thereof.
The common council of the city of Neillsville by ordinances adopted
these provisions as a part of the regulations for the preservation
of the public health, and provided for the organization of the board
of health, prescribing the duties of the board and its health officer
in carrying out the powers and duties imposed by law. Neither the
statutes nor the ordinances of the city for the preservation of the
public health make provision for a hearing before the board or other-
wise of the person charged with maintaining a nuisance, source of
filth, or cause of sickness. The board or its members or officers may
abate and remove the nuisance, source of filth, or cause of sickness
without any such hearing, even though such proceeding necessitates
the destruction of private property.
The statutes were unquestionably framed upon the fact that such
boards must act immediately and summarily in cases of the appearance
of contagious and malignant diseases, which are liable to spread and
become epidemic, causing destruction of liuman life. Under such cir-
cumstances it has been held that the Legislature under the police
power can rightfully grant to boards of health authority to employ
all necessary means to protect the public health, and, if necessary, go
to the extent of destroying private property when the emergency
demands. Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805, 32
L. R. A. 380; City of Salem v. E. Ry. Co., 98 Mass. 431, 96 Am.
Dec. 650; Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878, L. R. A.
310
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RELIEF AGAINST ADMINISTRATIVE ACTION.
134, 16 Am. St. Rep. 813; Id., 152 U. S. 133, 14 Sup. Ct. 499, 38
L. Ed. 385.
The power to summarily abate nuisances was fully recognized
and established as a principle of the common law, upon the ground
that the requirement of preliminary formal legal proceedings and a
judicial trial would result in defeating the beneficial objects sought to
be attained." Within this principle, "quarantine and health laws have
been enacted from time to time from the organization of state govern-
ments, authorizing the summary destruction of imported cargo,
clothing, or other articles by officers designated, and no doubt has been
suggested as to their constitutionality.” Lawton v. Steele, supra; Sen-
tell v. N. O. & C. Ry. Co., 166 U. S. 698, 17 Sup. Ct. 693, 41 L.
Ed. 1169; Hart v. Mayer, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165;
Health Dept. v. Rector, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A.
710, 45 Am. St. Rep. 579; Rockwell v. Nearing, 35 N. Y. 308.
The appearance of a malignant and contagious disease in cattle is
in its nature such a menace to the public health as to bring it clearly
within the class of cases which can only in many instances be ef-
fectually dealt with by the destruction of the animals afflicted.
Respondent insists that he has the legal right to recover his damages
since the property was not in fact a nuisance, source of filth, or a
cause of sickness, as contemplated by the statute for the preservation
and protection of the public health. This presents the inquiry whether
the determination of the health officers that a nuisance or
of sickness dangerous to health in fact existed is a final determination,
binding upon respondent as owner of the property which the health
officer decided must be destroyed in order to abate the nuisance
and remove the cause of sickness.
The statute, as stated, makes no provision giving the party pro-
ceeded against for such a nuisance or cause of sickness an opportunity
to be heard before his property may be destroyed. While such a
determination has been held to be a full protection to all persons
acting under it in carrying out the purposes of the law—that is, to
abate, and, if necessary, destroy, that which is in fact a nuisance or
source of danger to health-yet it is no protection for destroying
private property which in fact is no such nuisance or source of
danger. This is upon the ground that due process of law requires
that the owner be given an opportunity to be heard at a trial before
his private property be taken and adjudged forfeited for his miscon-
duct, or for the protection of the public health. He cannot be de-
prived of the right, either before or after such taking of his prop-
erty, to have a judicial inquiry whether in fact he has forfeited the
right to his property by coming within the condemnation of the law.
In such cases, where a board of health has summarily destroyed
property, the owner may bring his action to recover the damages
sustained, if it be found he has been unjustifiably deprived of it.
cause
Ch.7)
311
ACTIONS TO RECOVER DAMAGES OR MONEY.
In the absence of judicial inquiry wherein the owner is given full
opportunity to establish that no nuisance or cause of sickness exists
as claimed, the board of health cannot declare a thing a nuisance or
source of danger to public health which is not so in fact. Their
authority to act is bottomed upon the actual existence of the condi-
tions which the statutes declare they may abate or remove. Hutton
v. City of Camden, 39 N. J. Law, 122, 23 Am. Rep. 203; Lawton v.
Steele, supra; Cole v. Kegler, 64 Iowa, 59, 19 N. W. 843; People
ex rel. v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A.
481, 37 Am. St. Rep. 522; Health Dept. v. Rector, 145 N. Y. 32,
39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579, and cases;
City of Orlando v. Pragg, 31 Fla. 111, 12 South. 368, 19 L. R. A. 196,
34 Am. St. Rep. 17.
It is urged that no action can be maintained to charge appellant
for the value of the property because in ordering its removal and
destruction he was in the exercise of his official duty as city health
officer. The laws for the preservation of the public health make no
provision for the payment of property so destroyed by mistake on the
order of health officers. The question then arises, who is liable for
the value of this property under the facts and circumstances of this
case ?
The jury found that the steer was not afflicted with a contagion,
and that the beef and hides destroyed were not infected with anthrax.
It is clear that the city is not liable under the decisions of this court.
In the case of Kempster v. City of Milwaukee, 103 Wis. 421, 79 N.
W. 411, it is said: “In carrying out the laws for the preservation
of the public health the city is performing a duty which it owes to the
whole public as distinguished from a mere corporate duty. It is a
duty which it is bound to see performed in pursuance of law as one
of the governmental agencies, but not a duty from which it derive
special benefit or pecuniary advantage in its corporate or private
capacity. Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760, and
cases cited.”
As here indicated, under the laws of this state no liability on the
part of a municipality arises for injuries resulting from the acts or de-
fault of its officers while performing a duty imposed upon it as a
governmental agency for the public at large. Durkee v. City of
Kenosha, 59 Wis. 123, 17 N. W. 677, 48 Am. Rep.. 480; Folk v.
City of Milwaukee, 108 Wis. 359, 84 N. W. 420.
Appellant contends that he is not liable in this action upon the
ground that the powers vested in members and officers of a board of
health are discretionary in character, and that the duty of determining
what are causes of sickness affecting the public health are [is] quasi
judicial in character. The acts of appellant, as appears from the
above statement of facts, were within the scope of his duty as health
officer, and come within the class of quasi judicial acts. It is the
312
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RELIET AGAINST ADMINISTRATIVE ACTION.
general rule that such officers are not liable in damages to private
persons for injuries which may result from their official action done
in the honest exercise of their judgment within the scope of their
authority, however erroneous or mistaken that action may be, pro-
vided there be an absence of malice or corruption. Dillon, Municipal
Corporations, § 277, and note; Steele v. Dunham, 26 Wis. 393;
Druecker v. Salomon, 21 Wis. 621, 94 Am. Dec. 571; Smith v. Gould,
61 Wis. 31, 20 N. W. 369; Gates v. Young, 82 Wis. 272, 52 N. W.
178.
The facts and circumstances show, however, that respondent's
private property rights have been unjustifiably invaded, and that,
unless it be that defendant and those who actually committed the
trespass in wrongfully destroying his property are liable, he will be
remediless in the law. Under such circumstances quasi judicial
officers have been held liable to respond in damages upon the ground
that the exercise of this discretion is limited by the superior right
guarantying to every person immunity from having his private prop-
erty rights invaded except under the regular course of law, sanctioned
by the established customs and usages of the courts. The discretion
in which such officers are protected must be limited to the line where
their acts invade the private property rights of another, for which
invasion the law awards no redress other than an action against the
one actually committing the trespass. Hubbell v. Goodrich, 37 Wis.
84; Houston v. State, 98 Wis. 181, 74 N. W. 111, 42 L. R. A. 39;
Cubit v. O'Dett, 51 Mich. 347, 16 N. W. 679; Miller v. Horton, 152
Mass. 541, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850;
Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 Am. St. Rep. 113;
McCord v. High, 24 Iowa, 336. The circuit court proceeded upon
this principle, and held appellant liable in damages, resulting from
the destruction of the property, because it was not in fact a nuisance
or cause of sickness endangering the public health.
This course is assailed by appellant upon the authority of Fath v.
Koeppel, 72 Wis. 289, 39 N. W. 539, 7 Am. St. Rep. 807. This
was an action against the defendant, as meat inspector of the city of
Milwaukee, for the destruction of a quantity of fish as unwhole-
some for food. The action was upon the ground that his.acts were
without authority, but the court held that he had authority to inspect
fish, and judge whether they were a proper article of diet, and to de-
stroy them if he found they were unwholesome. It is stated in the
opinion: "He is vested with the power to determine the quality and
healthfulness of fish in the market, and, if unwholesome or unfit to
be eaten, to condemn and destroy them. This is a high and respon-
sible judicial power,
and the officer exercising such a power
is within the protection of that principle that a judicial officer is not
responsible in an action for daniages to any one for any judgment he
may render, however erroneously, negligently, ignorantly, corruptly,
or maliciously he may act or render it, if he acts within his jurisdic-
X
Ch.)
313
ACTIONS TO RECOVER DAMAGES OR MONEY.
+
tion"—citing, among the authorities in support of this proposition,
Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3.27
The decision arose on deinurrer, and seems to assume that the fish
destroyed were in fact unwholesome, and not a fit article of diet.
Under this assumption of fact the decision was in accord with the
doctrine that health officers are not liable in damages for destroying
property when such property is in fact a source of danger to the public
health. The opinion, however, seems to go upon the ground that such
quasi judicial officers are under all circumstances absolutely pro-
tected from liability to the owner of the property, and are entitled to
the same protection as an officer of a judicial tribunal in the discharge
of official action within his jurisdiction. This is not the rule es-
tablished under the adjudications. Upon the authorities cited and the
reason advanced therein the rule is: "Inasmuch as the law quite
universally protects private property,
the judgment or
discretion of a quasi judicial officer, though exercised honestly and
in good faith, does not protect himn where, by virtue of it, he under-
takes to invade the private property rights of others, to whom no
other redress is given than an action against the officer.” Mechem,
Public Officers, $ 642, and cases cited. In so far as Fath v. Koeppel,
supra, is in conflict with this conclusion, it must be deemed over-
ruled.
The evidence adduced fully sustains the findings of the jury. Upon
the grounds stated, respondent was entitled to a judgment for the
value of the property destroyed.
The judgment of the circuit court is affirmed.28
27 In Raymond v. Tish, 51 Conn. 80, 99, 50 Am. Rep. 3 (1883), an action to
recover damages for the removal of brush with oysters growing on it, brought
against persons acting under an order of the board of health, Park, C. J., said:
"By the common law à party has the right to defend himself from any assail-
ant, even to the taking of life when necessary, and even to the taking of life
when not necessary in fact, but apparently so. If life may be protected by
destroying life, when apparently necessary, but not so in fact, may not life
be protected by destroying property when apparently necessary, though after-
wards discovered not so in fact? But it may be said that this right of self-
defense comes when the assailed party seems to be driven to the last extrem-
ity. So here the justification of the board of health in the destruction of prop-
erty must come in seemingly extreme cases, where there is reasonable ground
to believe that immediate action is necessary for the preservation of the life
and health of the inhabitants, and where there is reasonable ground to be-
lieve the supposed nuisance to be one in fact. We go no farther in this case
than its exigencies require. We leave undecided how far the board of health
may go in other cases, where the destruction of property may not seem to
require such summary action. It is expressly found in the case that the
board acted in good faith throughout these transactions, and in addition there-
to such facts are detailed as go to show that they acted with extreme caution!
We cannot doubt the constitutionality of the act when rightly considered. It
is nothing more or less than a police regulation. The property was not taken
for public use within the meaning of the Constitution. It was destroyed for
the protection of the public health.
We advise judgment for the
defendants."
See Whidden v. Cheever, 69 N. H. 142, 44 Atl. 908, 76 Am. St. Rep. 154 (1897).
28 See, also, Underwood v. Green, 42 N. Y. 140 (1870); Miller v. Horton, 152
314
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 35.-SAME-AGAINST FEDERAL OFFICERS
TRACY v. SWARTWOUT.
(Supreme Court of United States, 1836. 10 Pet. 80, 9 L. Ed. 354.)
*
* 29
Error to the Circuit Court for the Southern District of New York.
This action was commenced by the plaintiffs in error, in the
Superior Court of the City of New York, and on the suggestion of
the defendant that the suit was instituted against him for acts done
by him under the revenue laws, as collector for the district of the
city of New York, and praying that the same should be removed to
the Circuit Court of the United States for the Southern District of
New York, the cause was so removed to October term, 1833.
The declaration was in trover for certain casks of syrup of sugar
cane.
MCLEAN, Justice, delivered the opinion of the court.
This case was brought into this court by a writ of error to the Cir.
cuit Court of the Southern District of New York. The suit was
prosecuted in that court, to recover damages from the defendant, who,
as collector of the customs, had refused to allow the plaintiffs to enter
and receive the payment of the lawful duties, on certain casks of
syrup of sugar cane, which they had imported into the port of New
York. It is admitted that the law imposed no more duty on the article
than fifteen per cent. ad valorem, although the collector, acting under
the instructions of the Secretary of the Treasury, required bond for
the payment of the above duty, or, should it be required, a duty of
three cents per pound. No bond was given, and the syrup remained
in the possession of the collector for a long time, by which means its
value was greatly deteriorated. The question for consideration arises
out of a bill of exceptions in which the evidence is stated at large,
showing the quality of the syrup, the number of gallons imported, and
the refusal of the defendant to take bond for the fifteen per cent. ad
valorem duty.
It was admitted by the counsel of the plaintiffs that the defendant
acted throughout with entire good faith, and under instructions from
Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850 (1891), post, p. 535.
New York Agricultural Law (1901) § 70a: "The actual appraised value
of all animals slaughtered under the provisions of this article
[Diseases of Domestic Animals), which shall be found upon a post mortem
examination not to have had the disease for which they were slaughtered, un-
less the same were killed on account of the violation of quarantine regula-
tions, shall be paid to the owners of such animals.
See New York City Charter 1901 (Laws 1901, C. 466) $ 1196, post, p. 358.
29 The rest of the statement of facts and a portion of the opinion are omit-
ted.
* )
Ch.7)
315
ACTIONS TO RECOVER DAMAGES OR MONEY.
the Treasury Department. The plaintiffs' counsel offered to prove
that they were unable to give bonds for duties at three cents per
pound, though they did not state that fact to the defendant at the
time they offered to make the entry. The court overruled this testi-
mony, and instructed the jury "that, admitting the merchandise in
question was only subject to an ad valorem duty of fifteen per cent.,
yet the circumstances under which the dispute about the rate of duties
arose ought not to subject the collector to the payment of more
than nominal damages; that the collector was pursuing what he
believed to be the true construction of the law, and whatever in-
jury the plaintiffs may have sustained, in not receiving their goods
at an earlier day, grew out of their own conduct in not entering the
goods in the manner offered by the collector, at fifteen per cent. ad
valorem, taking the bond, however, to receive the payment of three
cents per pound, if such should be the legal rate of duties demandable,
merely placing the case in a situation to have the question judicially
decided, as to the rate of duty, no intimation, at the time, being given
that it would occasion any inconvenience to the plaintiffs to give the
bond so required by the collector." Under this construction, the jury
found a verdict for six cents damages and six cents costs.
There can be no doubt that the Circuit Court decided correctly
in overruling the evidence of inability in the plaintiffs to give the bond
demanded by the defendant. The materiality of this evidence is not
perceived; and if it had been material it ought not have been re-
ceived, unless the fact of inability had been made known to the de-
fendant, at the time the bond was required. *
The collector of the customs is a ministerial officer. He acts under
the instructions of the Secretary of the Treasury, who is expressly
authorized to give instructions, as to the due enforcenient of the reve-
nue laws. Do these instructions, when not given in accordance with
the law, afford a justification to the collector, or exonerate him from
the payment of adequate damages for an injury resulting from his
illegal acts? The Circuit Court, in their charge to the jury, did not
consider these instructions as a justification to the defendant; and
in this they were unquestionably correct, The Secretary of the
Treasury is bound by the law; and althoughi, in the exercise of his
discretion, he may adopt necessary forins and modes of giving ef-
fect to the law, yet neither he nor those who act under him can dis-
pense with, or alter, any of its provisions. It would be a inost danger-
ous principle to establish that the acts of a ministerial officer, when
done in good faith, however injurious to private rights and unsup-
ported by law, should afford no ground for legal redress. The facts
of the case under consideration will forcibly illustrate this principle.
The importers offer to comply with the law, by giving bond for the
lawful rate of duties; but the collector demands a bond in a greater
amount than the full value of the cargo. The bond is not given, and
the property is lost, or its value greatly reduced, in the hands of the
316
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
defendant. Where a ministerial officer acts in good faith, for an in-
jury done he is not liable to exemplary damages; but he can claim no
further exemption where his acts are clearly against law. The col-
lector has a right to hold possession of imported goods until the duties
are paid or secured to be paid, as the law requires. But, if he shall
retain possession of the goods, and refuse to deliver them, after the
duties shall be paid, or bond given or tendered, for the proper rate
of duties, he is liable for the damages which may be sustained by
this refusal.
Some personal inconvenience may be experienced by an officer
who shall be held responsible in damages for illegal acts done under
instructions of a superior; but, as the government in such cases is
bound to indemnify the officer, there can be 110 eventual hardship.
The judgment of the Circuit Court must be reversed, and the cause
remanded to that court for further proceedings.
Judgment reversed. 30
*
*
*
ELLIOTT v. SWARTWOUT.
(Supreme Court of United States, 1836. 10 Pet. 137, 9 L. Ed. 373.)
Certificate of division from the Circuit Court for the Southern
District of New York.
The suit was originally instituted in the Superior Court of the City
of New York, by the plaintiff against the defendant, the collector of
the port of New York, and was removed by certiorari into the Circuit
Court of the United States.
The action was assumpsit, to recover from the defendant the sum
of $3,178, received by him for duties, as collector of the port of New
York, on an importation of worsted shawls with cotton borders, and
worsted suspenders with cotton straps or ends. The duty was levied
at the rate of fifty per centum ad valorem, under the second clause
of the second section of the act of the 14th July, 1832, entitled “An
act to alter and amend the several acts imposing duties on imports,"
as manufactures of wool, or of which wool is a component part. The
plea of non assumpsit was pleaded by the defendant in bar of the
action.
The following points were presented, during the progress of the
trial, for the opinion of the judges, and on which the judges were
opposed in opinion : 31
3. Whether the collector is personally liable in an action to re-
cover back an excess of duties paid to him as collector, and by him
paid, in the regular and ordinary course of his duty, into the treasury
30 Compare Averill v. Smith, 17 Wall. 82, 21 L. Ed. 613 (1872).
31 The first two points, and the part of the opinion relating thereto, are
omitted.
Ch.7)
317
ACTIONS TO RECOVER DAMAGES OR MONEY.
*
*
of the United States, he, the collector, acting in good faith, and under
instructions from the Treasury Department; a notice having been
given, at the time of payment, that the duties were charged too high,
and that the party paying, so paid to get possession of his goods, and
intended to sue to recover back the amount erroneously paid, and a
notice not to pay over the amount into the treasury. These several
points of disagreement were certified to this court by the direction
of the judges of the Circuit Court.
THOMPSON, J., delivered the opinion of the court.
3. The case put by the third point is where, at the time of payment,
notice is given to the collector that the duties are charged too high,
and that the party paying so paid to get possession of his goods,
and accompanied by a declaration to the collector that he intended to
sue him to recover back the amount erroneously paid, and notice
given to him not to pay it over to the treasury. This question must
be answered in the affirmative, unless the broad proposition can be
maintained that no action will lie against a collector to recover back
an excess of duties paid him, but that recourse must be had to the
government for redress. Such a principle would be carrying an ex-
emption to a public officer beyond any protection sanctioned by any
principles of law or sound public policy. The case of Irving v. Wil-
son and Another, 4 T. R. 485, was an action for money had and
received, against custom-house officers, to recover back money paid
to obtain the release and discharge of goods seized, that were not
liable to seizure, and the action was sustained. Lord Kenyon ob-
served that the revenue laws ought not to be made the means of
oppressing the subject, that the seizure was illegal, that the defend-
ants took the money under circumstances which could by no pos-
sibility justify them, and therefore this could not be called a volun-
tary payment.
The case of Greenway v. Hurd, 4 T. R. 554, was an action against
an excise officer, to recover back duties illegally received; and Lord
Kenyon does say that an action for money had and received will
not lie against a known agent, but the party must resort to the su-
perior. But this was evidently considered a case of voluntary pay-
ment. The plaintiff had once refused to pay, but afterwards paid
the money; and this circumstance is expressly referred to by Bul-
ler, Justice, as fixing the character of the payment. He says, though
the plaintiff had once objected to pay the money, he seemed after-
wards to waive the objection, by paying it. And Lord Kenyon con-
sidered the case as falling within the principle of Sadler v. Evans, 4
Burr. 1984, which has already been noticed. In the case of Snow-
den v. Davis, 1 Taunt. 358, it was decided that an action for money
had and received would lie against a bailiff, to recover back money
paid through compulsion, under color of process, by an excess of
authority, although the money had been paid over. The court say
the money was paid to [by] the plaintiff, under the threat of a distress;
318
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
and although paid over to the sheriff, and by him into the exchequer,
the action well lies. The plaintiff paid it under terror of process, to
redeem his goods, and not with intent that it should be paid over to
any one.
The case of Ripley v. Gelston, 9 Johns. (N. Y.) 201, 6 Am. Dec.
271, was a suit against a collector to recover back a sum of money
demanded by him for the clearance of a vessel. The plaintiff ob-
jected to the payment as being illegal, but paid it for the purpose
of obtaining the clearance, and the inoney had been paid by the
collector into the Branch Bank, to the credit of the Treasurer. The
defense was put on the ground that the money had been paid over,
but this was held insufficient. The money, say the court, was de-
manded as a condition of the clearance; and that being established,
the plaintiff is entitled to recover it back, without showing any no-
tice not to pay it over. The cases which exempt an agent do not ap-
ply. The money was paid by compulsion. It was extorted as a
condition of giving a clearance, and not with intent or purpose to
be paid over. In the case of Clinton v. Strong, 9 Johns. (N. Y.)
370, the action was to recover back certain costs, which the marshal
had demanded, on delivering up a vessel which had been seized,
which costs the court considered illegal; and one of the questions
was whether the payment was voluntary. The court said the pay-
ment could not be voluntary; the costs were exacted by the officer,
colore officii, as a condition of the redelivery of the property; and
that it would lead to the greatest abuse to hold that a payment, un-
der such circumstances, was a voluntary payment, precluding the
party from contesting it afterwards. The case of Hearsey v. Pruyn,
7 Johns. (N. Y.) 179, was an action to recover back toll which had
been illegally demanded; and Spencer, Justice, in delivering the
opinion of the court, says the law is well settled that an action may
be sustained against an agent, who has received money to which the
principal had no right, if the agent has had notice not to pay it over.
And in the case of Frye v. Lockwood, 4 Cow. (N. Y.) 456, the court
adopts the principle that when money is paid to an agent, for the
purpose of being paid over to his principal, and is actually paid over,
no suit will lie against the agent to recover it back. But the dis-
tinction taken in the case of Ripley v. Gelston is recognized and
adopted, that the cases which exempt an agent, when the money is
paid over to his principal without notice, do not apply to cases where
the money is paid by compulsion, or extorted as a condition, etc.
From this view of the cases, it may be assumed as the settled doc-
trine of the law that, where inoney is illegally demanded and re-
ceived by an agent, he cannot exonerate himself from personal re-
sponsibility by paying it over to his principal, if he has had notice not
to pay it over. The answer, therefore, to the third point, must be
that the collector is personally liable to an action to recover back
Ch.7)
ACTIONS TO RECOVER DAMAGES OR MONEY.
319
an excess of duties paid to him as collector, under the circumstances
stated in the point, although he may have paid over the money into
the treasury.
*
*
CARY V. CURTIS.
(Supreme Court of United States, 1815. 3 How. 236, 11 L. Ed. 576.)
This case came up from the Circuit Court of the United States for
the Southern District of New York, on a certificate of division in
opinion between the judges thereof.
The action was brought in the Circuit Court to recover money paid
to Curtis, as collector of the port of New York, for duties. The
declaration contained the common money counts, and the defend-
ant pleaded the general issue. The cause was tried at November
term, 1842.
The jury found for the plaintiffs, subject to the opinion of the
court, among other things :
(1) That the plaintiffs paid the sum of $181.75 to the defendants,
on the 3d of July, 1841, for duties on the goods imported as being
raw silk.
(2) That the goods on which the duties were demanded and paid
were not raw silk, but a manufactured article.
(3) That the money so paid was under a written protest, made
at the time of payment.
(4) That the money had been paid into the treasury by the defend-
ant, in the month of July, 1841, and before the commencement of
this suit.
Upon the argument of this cause, after verdict, several questions
arose, among others the following, viz.
Whether or not the second section of the act of Congress, approved
on the 3d day of March, 1839, entitled "An act making appropriations
for the civil and diplomatic expenses of government for the year
1839," was a bar to the action?
On this question the opinions of the judges were opposed.
Mr. Justice DANIEL delivered the opinion of the court.32
It has been urged that the clause of the act of 1839 33 declaring
*
32 Only a portion of the opinion is printed.
33 "That from and after the passage of this act, all money paid to any col-
lector of the customs, or to any person acting as such, for unascertained du-
ties, or for duties paid under protest against the rate or amount of du-
ties charged, shall be placed to the credit of the Treasurer of the United
States, kept and disposed of as all other money paid for duties is required
by law, or by regulation of the Treasury Department, to be placed to the
credit of the Treasurer, kept and disposed of; and it shall not be held by
said collector or person acting as such, to await any ascertainment of duties,
or the result of any litigation in relation to the rate or amount of duty legal-
ly chargeable and collectible in any case where money is so paid; but when-
ever it shall be shown to the satisfaction of the Secretary of the Treasury,
that in any case of unascertained duties, or duties paid under protest, more
320
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
that the money received shall not be held by any collector to await
any ascertainment of duties, or the result of any litigation in relation
to the rate or amount of duties legally chargeable and collectible in
any case where money is so paid, shows that Congress did not mean
to deprive the party of his action of assumpsit against the collector,
that litigation of that description was still contemplated, and that the
only object of the law was to place the money in dispute in the pos-
session of the Treasurer, to await a decision, instead of leaving it in
the hands of the collector. The court cannot assent to this construc-
tion. It will be remembered that the two principal cases in which
collectors have claimed the right to retain have been those of un-
ascertained duties, and of suits brought, or threatened to be brought,
for the recovery of duties paid under protest. It is matter of his-
tory that the alleged right to retain on these two accounts had led
to great abuses, and to much loss to the public; and it is to these
two subjects, therefore, that the act of Congress particularly addresses
itself. It begins by declaring that all money received on these ac-
counts shall be paid into the treasury, and then, in order to show
that the collector is not the person with whom any claims for this
money are to be adjusted, or who is to be held responsible for it,
the act proceeds to declare that the money shall not remain in his
hands even if the protest is followed by a suit, that, notwithstanding
suit may be brought against him, he shall still pay the money into
the treasury, and that the controversy shall be adjusted with the
Secretary. Congress supposed, probably, that a party might choose
to sue the collector, as has been done in this instance; but it does
not by any means follow that it was intended to make him liable
in the suit, or to give the party the right of recovery against him.
It is contended, however, that the language and the purposes of
Congress, if really what we hold them to be declared in the statute
of 1839, cannot be sustained, because they would be repugnant to the
Constitution, inasmuch as they would debar the citizen of his right
to resort to the courts of justice. The supremacy of the Constitu-
tion over all officers and authorities, both of the federal and state:
governments, and the sanctity of the rights guaranteed by it, none
will question. These are concessa on all sides. The objection above
referred to admits of the most satisfactory refutation. This may
be found in the following positions, familiar in this and in most
other governments, viz.: That the government, as a general rule,
claims an exemption from being sued in its own courts. That al-
though, as being charged with the administration of the laws, it will
money has been paid to the collector, or to the person acting as such, than
the law requires should have been paid, it shall be his duty to draw his war-
rant upon the Treasurer in favor of the person or persons entitled to the over-
payment, directing the said Treasurer to refund the same out of any money
in the treasury not otherwise appropriated."
Ch.7)
321
ACTIONS TO RECOVER DAMAGES OR MONEY.
resort to those courts as means of securing this great end, it will
not permit itself to be impleaded therein, save in instances forming
conceded and express exceptions. Secondly, in the doctrine so often
ruled in this court that the judicial power of the United States, al-
though it has its origin in the Constitution, is (except in enumerated
instances, applicable exclusively to this court) dependent for its dis-
tribution and organization, and for the modes of its exercise, en-
tirely upon the action of Congress, who possess the sole power of
creating the tribunals (inferior to the Supreme Court) for the exer-
cise of the judicial power, and of investing them with jurisdiction
either limited, concurrent, or exclusive, and of withholding jurisdic-
tion from them in the exact degrees and character which to Congress
may seem proper for the public good. To deny this position would
be to elevate the judicial over the legislative branch of the govern-
ment, and to give to the former powers limited by its own discre-
tion merely. It follows, then, that the courts created by statute must
look to the statute as the warrant for their authority; certainly
they cannot go beyond the statute, and assert an authority with which
they may not be invested by it, or which may be clearly denied to them.
This argument is in no wise impaired by admitting that the judicial
power shall extend to all cases arising under the Constitution and
laws of the United States. Perfectly consistent with such an ad-
mission is the truth that the organization of the judicial power, the
definition and distribution of the subjects of jurisdiction in the fed-
eral tribunals, and the modes of their action and authority, have
been, and of right must be, the work of the legislature. The exist-
ence of the judicial act itself, with its several supplements, furnishes
proof unanswerable on this point. The courts of the United States
are all limited in their nature and constitution, and have not the pow-
ers inherent in courts existing by prescription or by the common
law.
We have thus stated, and will here recapitulate, the principles on
which the action for money had and received may be maintained.
They are these: First. Whenever the defendant has received money
which is the property of the plaintiff, and which the defendant is
obliged, by the ties of natural justice and equity, to refund. Sec-
ondly. In the case of an agent, where such agent is not notoriously
the mere carrier or instrument for transferring the fund, but has
the power of retaining, and before he has paid over has received no-
tice of the plaintiff's claim and a warning not to part with the fund.
Thirdly. Where there exists a privity between the plaintiff and the
defendant. Let the case before us be brought to the test of these
rules.
The second section of the act of Congress declares, first, that from
its passage all money paid to any collector of the customs for unas-
certained duties, or duties paid under protest against the rate or
FP.ADM.LAW-21
:
322
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
amount of duties charged, shall be placed to the credit of the Treas-
urer, to be kept and applied as all other money paid for duties re-
quired by law; secondly, that they shall not be held by the collector
to await any ascertainment of duties, or the result of any litigation
concerning the rate or amount of duty legally chargeable or collect-
ible; and, thirdly, that in all cases of dispute as to the rate of du-
ties, application shall be made to the Secretary of the Treasury, who
shall direct the repayment of any money improperly charged. This
section, as a part of the public law, must be taken as notice to all
revenue officers, and to all iniporters and others dealing with those
officers in the line of their duty. There is nothing obscure or equivo-
cal in this law. It declares to every one subject to the payment of
duties the disposition which shall be made of all payments in future
to collectors; tells them those officers shall have no discretion over
money received by them, and especially that they shall never retain
it to await the result of any contest concerning the right to it; and
that quoad this money the statute has converted those officers into
mere instruments for its transfer to the treasury.
With full knowledge thus imparted by the law, can it be correctly
understood that the party making payment can, ex æquo et bono,
recover against the officer for acting in literal conformity with the
law, converting thereby the performance of his duty into an of-
fense, or that upon principles of equity and good conscience an
obligation and a promise to refund shall be implied against the ex-
press mandate of the law ? Such a presumption appears to us to be
subversive of every rule of right. The more correct inference seems
to be that payment under such circumstances must, ex æquo et bono,
nay, ex necessitate, and in despite of objection made at the time,
be taken as being made in conformity with the mandate of the law
and the duty of the officer, which exclude not only any implied
promise of repayment by the officer, but would render void an ex-
press promise by him, founded upon a violation both of the law and
of his duty. The claimant had his option to refuse payment. The
detention of the goods for the adjustment of duties being an incident
of probable occurrence, to avoid this it could not be permitted to ef-
fect the abrogation of a public law, or a system of public policy es-
sentially connected with the general action of the government. The
claimant, moreover, was not without other modes of redress, had he
chosen to adopt them. He might have asserted his right to the
possession of the goods, or his exemption from the duties demanded,
either by replevin, or in an action of detinue, or perhaps by an action
of trover, upon his tendering the amount of duties admitted by him
to be legally due.
The legitimate inquiry before this court is not whether all right of
action has been taken away from the party, and the court responds
to no such inquiry. The question presented for decision, and the
only question decided, is whether, under the notice given by the
Ch.7)
323
ACTIONS TO RECOVER DAMAGES OR MONEY. .
*
statute of 1839, payments made in despite of that notice, though with
a protest against their supposed illegality, can constitute a ground
for that implied obligation to refund, and for that promise inferred
by the law from such obligation, which are inseparable from, and
indeed are the only foundation of, a right of recovery in this par-
ticular form of action. And here is presented the answer to the as-
sertion that by the act of 1839, or by the construction given to it by
this court, the party is debarred all access to the courts of justice,
and left entirely at the mercy of an executive officer. Neither have
Congress nor this court furnished the slightest ground for the above
assertion.
Mr. Justice STORY (dissenting).
An action for money
liad and received being [then] the known and appropriate remedy
of the common law, applied to cases of this sort, to protect the sub-
ject from illegal taxation, and duties levied by public officers, what
ground is there to suppose that Congress could intend to take away
so important and valuable a remedy, and leave our citizens utterly
without any adequate protection? It is said that circuitously an-
other remedy may be found. The answer is that, if Congress have
taken away the direct remedy, the circuitous remedy must be equally
barred. But in point of fact no other judicial remedy does exist or
can be applied. If the collector is not responsible to pay back the
money, nobody is. The government itself is not suable at all; and
certainly there is no pretense to say that the Secretary of the Treas-
ury is suable therefor. Where then is the remedy which is supposed
to exist? It is an appeal to the Secretary of the Treasury for a
return of the money, if in his opinion it ought to be returned, and
not otherwise. No court, no jury, nay, not even the ordinary rules
of evidence, are to pass between that officer and the injured claim-
ant, to try his rights or to secure him adequate redress.
Assuming that the Secretary of the Treasury will always be dis-
posed to do what he deems to be right in the exercise of his dis-
cretion, and that he possesses all the qualifications requisite to per-
form this duty, among the other complicated duties of his office-a
presumption which I am in no manner disposed to question-still
it removes not a single objection. It is, after all, a substitution of
executive authority and discretion for judicial remedies. Nor should
it be disguised that, upon so complicated a subject as the nature and
character of articles made subject to duties, grave controversies
must always exist (as they have always hitherto existed) as to the
category within which particular fabrics and articles are to be classed.
The line of discrimination between fabrics and articles approaching
near to each other in quality, or component materials, or commercial
denominations, is often very nice and difficult, and sometimes ex-
ceedingly obscure. It is the very case, therefore, which is fit for ju-
dicial inquiry and decision, and falls within the reach of that branch
of the judicial power given by the Constitution where it is declared
!
324
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RELIEF AGAINST ADMINISTRATIVE ACTION.
"that the judicial power shall extend to all cases in law and equity
arising under this Constitution, the laws of the United States, and
treaties," etc. If then the judicial power is to extend to all cases
arising under the laws of the United States, upon what ground are
we to say that cases of this sort, which are eminently “cases arising
under the laws," and of a judicial nature, are to be excluded from
judicial cognizance, and lodged with an executive functionary?
Besides, we all know that, in all revenue cases, it is the constant
practice of the Secretary of the Treasury to give written instructions
to the various collectors of the customs as to what duties are to
be collected under particular revenue laws, and what, in his judg-
ment, is the proper interpretation of those laws. I will venture to
assert that, in nineteen cases out of twenty of doubtful interpretation
of any such laws, the collector never acts without the express in-
structions of the Secretary of the Treasury. So that in most, if not
in all, cases where a controversy arises, the Secretary of the Treas-
ury has already pronounced his own judgment. Of what use then,
practically speaking, is the appeal to him, since he has already given
his decision? Further, it is well known, and the annals of this court
as well as those of the other courts of the United States establish
in the fullest manner, that the interpretations so given by the Secre-
tary of the Treasury have, in many instances, differed widely from
those of the courts. The Constitution looks to the courts as the
final interpreters of the laws. Yet the opinion maintained by my
Brethren does, in effect, vest such interpretation exclusively in that
officer.
These considerations have led me to the conclusion that it never
could be the intention of Congress to pass any statute by which
the courts of the United States, as well as the state courts, should
be excluded from all judicial power in the interpretation of the
revenue laws, and that it should be exclusively confided to an execu-
tive functionary finally to interpret and execute them-a power
which must press severely upon the citizens, however discreetly ex-
ercised, and which deeply involves their constitutional rights, priv-
ileges, and liberties. The same considerations force me, in all cases
of doubtful or ambiguous language admitting of different interpreta-
tions, to cling to that which should least trench upon those rights,
privileges, and liberties, and a fortiori to adopt that which would
be in general harmony with our whole system of government.
And this leads me to say that, after the most careful examination
of the second section of the act of 1839, c. 82, I have not been able
to find any ground to presume that Congress ever contemplated any-
thing contained in that section to be a bar to the present action. I
look upon that section as framed for a very different object, an ob-
ject founded in sound policy and to secure the public interest. It was
to prevent officers of the customs from retaining (as the habit of
some had been) large sums of money in their hands received for
Ch.)
325
'ACTIONS TO RECOVER DAMAGES OR MONEY.
duties, upon the pretense that they had been paid under protest, and
thus to secure in the hands of the officers a sufficient indemnity for
all present as well as future liabilities to the persons who had paid
them. By this means large sums of money were withheld from the
government, and there was imminent danger that severe losses might
thus be sustained from the defalcation of those officers, and the pub-
lic revenue might be thus appropriated to the personal business or
speculating concerns of the officers. If actions should be brought
and judgment obtained against such officers for the repayment of any
of such duties, it was plain that the government would be bound to
indemnify them, especially if they had acted under instructions from
the Treasury Department. On the other hand, the government, being
in possession of the money, would hold it in the meantime as a de-
posit to await events, and to refund the same if in the due admin-
istration of the law it was adjudged that it ought to be refunded.
Such, in my judgment, was the object and the sole object of the sec-
tion, and it seems to me in this view to be founded in a wise protect-
ive policy.
34
34 See Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct. 184, 27 L. Ed. 920
(1883): "The common-law right of action to recover back money illegally ex-
acted by a collector of customs as duties upon imported merchandise rested
upon the implied promise of the collector to refund money which he had re-
ceived as the agent of the government, but which the law had not authorized
him to exact, which had been unwillingly paid, and which, before payment to
his principal, he had been notified he would be required to repay, and involved
a corresponding right on his part to withhold from the government, as an in-
demnity, the fund in dispute. The manifest public inconveniences resulting
from this situation induced Congress, by Act March 3, 1839, c. 82, 5 Stat. 348,
$ 2, to alter the relation between these officers and the United States by re-
quiring them peremptorily to pay into the treasury all moneys received by
them officially, without regard to claims for erroneous and illegal exactions.
It was provided, however, therein, that the Secretary of the Treasury himself,
on being satisfied that, in any case of duties paid under protest, more money
had been paid to the collector than the law required, should refund the excess
out of the treasury. The legal effect of this enactment, as was held in Cary
V. Curtis, 3 How. 236, 11 L. Ed. 576, was to take from the claimant all right
of action against the collector, by removing the ground on which the implied
promise rested. Congress, being in session at the time that decision was an-
nounced, passed the explanatory act of February 26, 1845, which, by legisla-
tive construction of the act of 1839, restored to the claimant his right of ac-
tion against the collector, but required the protest to be made in writing at
the time of payment of the duties alleged to have been illegally exacted, and
took from the Secretary of the Treasury the authority to refund conferred by
the act of 1839. 5 Stat. 349, 727. This act of 1845 was in force, as was de-
cided in Barney v. Watson, 92 U. S. 449, 23 L. Ed. 730, until repealed by in-
plication by Act June 30, 1864, 13 Stat. 214. The fourteenth section of the
act last mentioned is, as already cited, in substance the present section 2931
of the Revised Statutes, providing for the appeal to the Secretary of the
Treasury, and the sixteenth section, being the present section 301242, Rev. St.,
restores to the Secretary of the Treasury the authority to refund moneys paid
under protest and appeal, which he shall be satisfied were illegally exacted,
originally conferred upon him by the act of 1839. And the provision of the act
of 1845, which construed the act of 1839 so as to restore to the claimant the
right of action, judicially declared in Cary v. Curtis, supra, to have been
taken away by the latter, now appears as section 3011 of the Revised Stat-
utes. It was in force when the present action was brought, and is as follows:
'Any person who shall have made payment under protest and in order to ob
326
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RELIEF AGAINST ADMINISTRATIVE ACTION.
TEAL v. FELTON.
(Supreme Court of United States, 1851. 12 How. 284, 13 L. Ed. 990.)
35
Mr. Justice WAYNE delivered the opinion of the court.
This suit was brought in a justice's court to recover from the
plaintiff in error the value of a newspaper, received by him as post-
master at Syracuse, which he refused to deliver to the defendant
in error to whom it was addressed. The plaintiff in error had charged
the newspaper with letter postage, on account of a letter or initial up-
on the wrapper of it, distinct from the direction. This the defendant
refused to pay, at the same time tendering the lawful postage of a
newspaper. The postmaster would not receive it, and retained the
paper against the will of the defendant. Upon that demand and
refusal the suit was brought. The action was trover and the gen-
eral issue was pleaded. In the course of the trial, when the defend-
ant in error, who was plaintiff in the suit below, was introducing
testimony in support of his case, the defendant objected to a fur-
ther examination of the case by witnesses, upon the ground that the
court had not jurisdiction of the case. The objection having been
overruled, the trial of the case was continued; and after the plain-
tiff had proved that he denianded from the defendant the newspaper,
tendering the lawful postage, and that the postmaster refused to
deliver it to him, he rested his case.
From the evidence in this case, we do not think that the initial
or letter upon the wrapper of the newspaper in this case, subjected it,
either under the thirteenth or thirtieth section of the act of 1825,
to letter postage.
This was not a case in which judgment
could be used to determine any fact, except by some other evidence
than the letter itself. Nor was it one calling for discretion in the
legal acceptation of that term in respect to officers who are called
upon to discharge public duties. What was done by the postmaster
was a mere act of his own, and ministerial, as that is understood to
be, distinct from judicial. It could not have been the intention of
Congress to put it in the power of postmasters, upon a mere sus-
picion raised by a single letter or initial, to arrest the transmission
of newspapers from the presses issuing them, or when they were
mailed by private hands.
*
*
*
*
*
*
tain possession of merchandise imported for him, to any collector or person
acting as collector of any money as duties, when such amount of duties was
not, or was not wholly, authorized by law, may maintain an action in the
nature of an action at law, which shall be triable by jury, to ascertain the
validity of such demand and payment of duties, and to recover back any ex-
cess so paid. But no recovery shall be allowed in such action unless a protest
and appeal shall have been taken as prescribed in section twenty-nine hundred
and thirty-one.'
As to further history, see De Lima v. Bidwell, 182 U. S. 1, 174–180, 21
Sup. Ct. 743, 45 L. Ed. 1041 (1896), post, p. 561, and Act June 10, 1890.
85 Only a portion of the opinion of Wayne, J., is printed.
Ch.)
327
ACTIONS TO RECOVER DAMAGES OR MONEY.
This view of the law disposes also of that point in the argument,
claiming for the postmaster an exemption from the suit of the plain-
tiff, upon the ground that he was called upon, in the act which he
did, to exercise discretion and judgment. In Kendall v. Stokes, 3
How. 97, 98, 11 L. Ed. 506, will be found this court's exposition upon
that subject, with the leading authorities in support of it. The dif-
ference between the two must at all times be determined by the law
under which an officer is called upon to act, and by the character of
the act. It is the law which gives the justification, and nothing less
than the law can give irresponsibility to the officer, although he may
be acting in good faithi under the instructions of his superior of the
department to which he belongs. Here the instructions exceed the
law, and marks and signs of themselves, without some knowledge of
their meaning, and the intention in the use of them, are, as we have
said, neither memoranda nor writings. Tracy v. Swartwout, 10 Pet.
80, 9 L. Ed. 354.
But it is said that the courts of New York had not jurisdiction to
try the case. The objection may be better answered by reference to
the laws of the United States, in respect to the service to be ren-
dered in the transmission of letters and newspapers by mail, and by
the Constitution of the United States, than it can by any general
reasoning upon the concurrent civil jurisdiction of the courts of
the United States and the courts of the states, or concerning the ex-
clusive jurisdiction given by the Constitution to the former.
The United States undertakes, at fixed rates of postage, to convey
letters and newspapers for those to whom they are directed, and
the postage may be prepaid by the sender, or be paid when either
reach their destination, by the person to whom they are addressed.
When tendered by the latter or by his agent, he has the right to the
immediate possession of them, though he has not had before the actual
possession. If then they be wrongfully withheld for a charge of un-
lawful postage, it is a conversion for which suit may be brought.
His right to sue existing, he may sue in any court having civil juris-
diction of such a case, unless for some cause the suit brought is an
exception to the general jurisdiction of the court.
Now the courts in New York having jurisdiction in trover, the
case in hand can only be excepted from it by such a case as this
having been made one of exclusive jurisdiction in the courts of the
United States, by the Constitution of the United States. That
such is not the case, we cannot express our view better than Mr.
Justice Wright has done in his opinion in this case in the Court of
Appeals. After citing the second section of the third article of the
Constitution, he adds: “This is a mere grant of jurisdiction to the
federal courts, and limits the extent of their power, but without
words of exclusion or any attempt to oust the state courts of con-
current jurisdiction in any of the specified cases in which concurrent
jurisdiction existed prior to the adoption of the Constitution. The
328
.
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
apparent object was not to curtail the powers of the state courts, but
to define the limits of those granted to the federal judiciary." 36 We
will add that the legislation of Congress, immediately after the Con-
stitution was carried into operation, confirms the conclusion of the
learned judge. We find, in the twenty-fifth section of the judiciary
act of 1789, under which this case is before us, that such a concur-
rent jurisdiction in the courts of the states and of the United States
was contemplated, for its first provision is for a review of cases ad-
judicated in the former, "where is drawn in question the validity of
a treaty or statute of, or an authority exercised under, the United
States, and the decision is against their validity."
We are satisfied that there was no error in the decision of the
Court of Appeals in this case, and the same is affirmed by this court.
36 See Teall v. Felton, 1 N. Y. 537, 546, 49 Am. Dec. 352 (1848): "But the
counsel for the plaintiff in error contends that this is a case which the state
courts did not hold cognizance of at the adoption of the federal Constitution,
for the reason that the Post-Office Department not only never in any manner
or at any time pertained to the state or colony, but is entirely the creation
of the national statute: that it owes its existence exclusively to the Constitu-
tion and national legislature; and hence that the federal judiciary has ex-
clusive jurisdiction in all matters growing out of or pertaining to it. That
the post office is a federal institution no one will deny; but it is difficult to
perceive how the premises of the counsel sustain the conclusion at which he
arrives. The same reason would apply with equal force in case of a suit being
brought against a collector of the customs. The present action is one coeval
with the common law, to enforce a right to property, alleged to have been
wrongfully converted by the defendant. This remedy for a tortious conversion
has always been complete in the state courts. It does not follow that, because
the defendant may have been acting under a law of Congress in withholding
the newspaper, and consequently may defend himself against the alleged con-
version, that jurisdiction of the subject-matter is exclusively given or acquired
by the federal courts under such law. The plaintiff is not seeking redress
under the post-office laws, or attempting to enforce a penalty specifically im-
posed by them on the postmaster for a fraudulent act pertaining to his official
duty. She simply seeks to recover in an appropriate common-law tribunal,
competent to afford a remedy, and in a form of action more ancient than the
federal Constitution or laws, the value of her property. If the defendant can
maintain that by the post-office laws, or any constitutional act of the national
legislature, there was no legal conversion, his defense will be complete. But
it is an incorrect conclusion that because a law of Congress prescribes the
duties of an officer of the federal government, and in a proper case he may
thereunder defend his acts, for such reason the state courts are ousted of
jurisdiction. Upon the whole. I have no doubt that the justice had jurisdic-
tion in the present case; and, whilst asserting this jurisdiction, I would not
be understood as inclined to throw the least obstacle in the way of a successful
operation of the general government, or to encourage the exercise of state
power having that tendency."
Ch.)
329
ACTIONS TO RECOVER DAMAGES OR MONEY.
SECTION 36.-SAME-LIABILITY ON OFFICIAL BOND
UNITED STATES v. GRISWOLD et al.
(Supreme Court of Arizona, 1904. 8 Ariz. 543, 76 Pac. 596.)
Action by the United States of America against Albert J. Griswold
and others. From an order sustaining a demurrer to the complaints,
plaintiff appeals. Reversed.
SLOAN, J. The United States brought suit in the court below
against Albert J. Griswold, postmaster at Nogales, Ariz., and L. W.
Mix, Edward Titcomb, Theo. Gebler, and Fred. Herrera, sureties
upon the official bond of said Griswold as postmaster aforesaid, to
recover the sum of $1,863, alleged to have been lost from the mails
after the same had been registered and deposited in the post of-
fice at Nogales by P. Sandoval & Co. It was alleged in the com-
plaint that the registered package containing this money was stolen
from the post office by reason of the negligence of the postmaster.
The defendants in the action demurred to the complaint upon the
ground that the facts therein stated did not constitute a cause of ac-
tion in favor of plaintiff and against the defendants. The demurrer
was sustained by the trial court, and from this order and ruling of
the court the United States has appealed.
The first question presented is: Does the loss of the registered
package, occasioned by the negligence of the postinaster, amount to
a breach of the bond given by such postmaster, under section 3834,
Rev. St. U. S. (U. S. Comp. St. 1901, p. 2610)? This section pro-
vides that "every postmaster, before entering upon the duties of his
office, shall give bond, with good and approved security, and in such
penalty as the Postmaster General shall deem sufficient, conditioned
for the faithful discharge of all duties and trusts imposed on him ei-
ther by law or the rules and regulations of the department." The
bond in this instance, given by Griswold, contained the condition re-
quired by said section, being in all respects as required by law and
the rules and regulations of the Post-Office Department having the
effect of law. Section 3926, Rev. St. U. S. (U. S. Comp. St. 1901,
p. 2685), authorizes the Postmaster General to establish a uniform
system of registration conditioned that the Post-Office Departinent,
or its revenue, should not be liable for the loss of any mail matter
on account of its having been registered. It is a part of the duty of
the postmaster to safely keep and to transmit the mails, including
registered packages, which may be given into his hands as such post-
master. His oath of office requires him to faithfully perform the
duties of his office.
330
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RELIEF AGAINST ADMINISTRATIVE ACTION.
It is a general proposition that a public officer, having ministerial
duties to perform, is liable for any injury occasioned by him in con-
sequence of his failure to perform his official duty. Raynsford v.
Phelps, 43 Mich. 344, 5 N. W. 403, 38 Am. Rep. 189. Thus it has
been held that a postmaster is liable in damage for conversion of
mail matter at the suit of the person injured. Teal v. Felton, 12 How.
284, 13 L. Ed. 990. It has also been held that a postmaster is liable
for the loss of a letter containing money, occasioned by his neg-
ligence, at the suit of the sender. Danforth v. Grant, 14 Vt. 283,
39 Am. Dec. 224. If a postmaster can be held responsible in dam-
ages for loss of mail matter occasioned by his negligence, it must be
for the reason that he has been derelict in his duty as such officer.
Such a failure, under the condition of his official bond that he will
"faithfully discharge the duties of his office," amounts to a breach
of the bond; and in such a case the liability of the principal is the
measure of the liability of the surety. All bonds given by govern-
ment officials are to be construed as though executed and to be per-
formed at Washington, and hence are to be construed according to
the rules of the common law, except where these rules have been
changed or modified by statute. Cox v. United States, 31 U. S.
172, 8 L. Ed. 359.
At common law suit upon an official bond must be brought and
a recovery had in the name of the obligee. There is no congressional
statute modifying the common-law limiting the liability of sureties to
suits brought by or in the name of the United States, as there is in
the case of bonds given by United States marshals. In the latter
case there is statutory authority authorizing any person to bring, in
liis own name and for his sole use, suit on the marshal's bond for a
breach of its conditions. Section 1784, Rev. St. U. S. (U. S. Comp.
St. 1901, p. 607). It follows, therefore, that P. Sandoval & Co.
could not maintain a suit on the postmaster's bond in their own name
to recover for the loss of the registered package.
Can the United States maintain such a suit? It has been held
that a bailee may sue and recover in his own name damages caused
to the subject of the bailment through the negligence of a third per-
In such case the measure of damages is not limited to the
bailee's special interest in the property, but he may recover for all
damages, holding the amount so recovered in excess of his own in-
terest in trust for his bailor. Woodman v. Nottingham, 49 N. H.
387, 6 Am. Rep. 526; McGill v. Monette, 37 Ala. 49; Rindge v.
Coleraine, 11 Gray, 159. The United States, in this instance, was
the bailee and intrusted with the safe-keeping of the registered pack-
age deposited by P. Sandoval & Co. Under section 3926, Rev. St.
U. S. (U. S. Comp. St. 1901, p. 2685), the sender of first-class reg-
istered matter is entitled to be indemnified out of the postal revenues
for loss in the mails to the extent of $10 for any one registered pack-
son.
!
Ch.7)
331
ACTIONS TO RECOVER DAMAGES OR MONEY.
age, or the actual value thereof when that is less than $10. The
government, in accepting a registered package, becomes not only the
bailee of the sender, but assumes a liability to its bailor by reason of
the bailment.
Even should we therefore construe the liability of the sureties
in its strictest sense, the government, as a bailee, would have a right
to recover to the extent of its special interest, which would be meas-
ured by the extent of its liability to the sender of the package. If
the government, therefore, has a right to sue to recover the loss it
sustains as bailee, under the general doctrine above stated, its recov-
ery cannot be confined to such special interest, but may cover the en-
tire loss sustained both by it and its bailor. Not only so, but we
think it is the duty of the United States to protect the public against
its own officers even to the extent of enforcing every legal right
which it possesses, whether criminal or civil. To hold that the
United States may not maintain an action upon the bond of the post-
master for the recovery of the entire loss sustained by the negli-
gence of the postmaster because it was not obligated to return or
make good to P. Sandoval & Co. an amount exceeding $10, would
be to deny to the latter any redress unless the postmaster be personal-
ly responsible to the extent of such loss.
We are convinced that in a case like the one at bar the United
States may sue for the benefit of the injured party and recover from
the sureties upon the official bond of the postmaster the full amount
of such loss, and that it is the clear duty of the government to bring
such action. At common law such suits were usually brought "for
the use of” or “at the relation of” the injured person. It is not
essential, however, that there be any formal declaration of such use;
its only purpose being to protect the interest of the beneficiary against
the nominal plaintiff. Tedrick y. Wells, 152 Ill. 217, 38 N. E. 625;
Clay Fire & Marine Ins. Co. v. Huron Salt & Lumber Mfg. Co., 31
Mich. 346. In the complaint the facts sufficiently show that the
United States is suing for the amount of the loss suffered by P.
Sandoval & Co. and for their benefit, and it will not be assumed that
the government will appropriate the amount recovered to its own
use, but it will be assumed that it will perform its duty by paying to
P. Sandoval & Co. the amount so recovered.
We hold that the complaint stated a cause of action, and the judg-
ment will therefore be reversed, and the cause remanded for further
proceedings.37
KENT C. J., and DOAN, J., concur.
37 See Howard v. United States, 184 U. S. 676, 687, 690, 22 Sup. Ct. 543, 46
L. Ed. 754 (1902).
332
3
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 37.--SAME-ACTIONS AGAINST SUBORDINATES
LITTLE v. BARREME.
THE FLYING FISH.
(Supreme Court of United States, 1804. 2 Cranch, 170, 2 L. Ed. 243.)
Appeal from the Circuit Court for the District of Massachusetts.
MARSHALL, C. J., now. delivered the opinion of the court.38
The Flying Fish, a Danish vessel, having on board Danish and
neutral property, was captured on the 2d of December, 1799, on a
voyage from Jeremie to St. Thomas, by the United States frigate
Boston, commanded by Captain Little, and brought into the port of
Boston, where she was libeled as an American vessel that had vio-
lated the nonintercourse law. The judge before whom the cause
was tried directed a restoration of the vessel and cargo as neutral
property, but refused to award damages for the capture and deten-
tion, because, in his opinion, there was probable cause to suspect the
vessel to be American. On an appeal to the Circuit Court, this
sentence was reversed, because the Flying Fish was on a voyage
from, not to, a French port, and was, therefore, had she even been
an American vessel, not liable to capture on the high seas.
During the hostilities between the United States and France, an
act for the suspension of all intercourse between the two nations
was annually passed. That under which the Flying Fish was con-
demned declared every vessel owned, hired, or employed, wholly or
in part, by an American, which should be employed in any traffic or
commerce with or for any person resident within the jurisdiction,
or under the authority, of the French republic, to be forfeited, to-
gether with her cargo, the one-half to accrue to the United States,
and the other to any person or persons, citizens of the United
States, who will inforın and prosecute for the same.
The fifth sec-
tion of this act authorizes the President of the United States to in-
struct the commanders of armed vessels to stop and examine any
ship or vessel of the United States, on the high seas, which there
may be reason to suspect to be engaged in any traffic or commerce
contrary to the true tenor of the act, and if upon examination it
should appear that such ship or vessel is bound, or sailing to, any
port or place within the territory of the French republic or her de-
pendencies, it is rendered lawful to seize such vessel, and send her
into the United States for adjudication.
It is by no means clear, that the President of the United States,
whose high duty it is to “take care that the laws be faithfully exe-
38 The statement of facts is omitted.
Ch.7)
333
ACTIONS TO RECOVER DAMAGES OR MONEY.
·cuted,” and who is commander in chief of the armies and navies of
the United States, might not, without any special authority for that
purpose, in the then existing state of things, have empowered the
officers commanding the armed vessels of the United States to seize
and send into port for adjudication American vessels which were
forfeited by being engaged in this illicit commerce. But when it is
observed that the general clause of the first section of the act, which
declares that "such vessels may be seized, and may be prosecuted in
any District or Circuit Court, which shall be holden within or for
the district where the seizure shall be made," obviously contemplates
a seizure within the United States, and that the fifth section gives a
special authority to seize on the high seas, and limits that authority
to the seizure of vessels bound, or sailing to, a French port, the
Legislature seem to have prescribed that the manner in which this
law shall be carried into execution was to exclude a seizure of any
vessel not bound to a French port. Of consequence, however strong
the circumstances might be which induced Captain Little to suspect
the Flying Fish to be an American vessel, they could not excuse the
detention of her, since he would not have been authorized to detain
her, had she been really American.
It was so obvious, that if only vessels sailing to a French port
could be seized on the high seas, that the law would be very often
evaded, that this act of Congress appears to have received a different
construction from the executive of the United Statesma construction
much better calculated to give it effect. A copy of this act was
transmitted by the Secretary of the Navy to the captains of the armed
vessels, who were ordered to consider the fifth section as a part of
their instructions. The same letter contained the following clause:
“A proper discharge of the important duties enjoined on you, aris-
ing out of this act, will require the exercise of a sound and an im-
partial judgment. You are not only to do all that in you lies to
prevent all intercourse, whether direct or circuitous, between the
ports of the United States and those of France or her dependencies,
where the vessels are apparently as well as really American, and
protected by American papers only, but you are to be vigilant that
vessels or cargoes, really American, but covered by Danish or other
foreign papers, and bound to or from French ports, do not escape
you."
These orders, given by the executive, under the construction of
the act of Congress made by the department to which its execution
was assigned, enjoin the seizure of American vessels sailing from a
French port. Is the officer who obeys them liable for damages sus-
tained by this misconstruction of the act, or will his orders excuse
him? If his instructions afford him no protection, then the law
must take its course, and he must pay such damages as are legally
awarded against him; if they excuse an act, not otherwise excusable,
it would then be necessary to inquire whether this is a case in which
334
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
the probable cause which existed to induce a suspicion that the vessel
was American would excuse the captor from damages when the
vessel appeared in fact to be neutral?
I confess the first bias of my mind was very strong in favor of
the opinion that, though the instructions of the executive could not
give a right, they might yet excuse from damages. I was much in-
clined to think that a distinction ought to be taken between acts of
civil and those of military officers, and between proceedings within
the body of the country and those on the high seas. That implicit
obedience which military men usually pay to the orders of their su-
periors which indeed is indispensably necessary to every military
system, appeared to me strongly to imply the principle that those
orders, if not to perform a prohibited act, ought to justify the person
whose general duty it is to obey them, and who is placed by the
laws of his country in a situation which, in general, requires that he
should obey them. I was strongly inclined to think that where, in
consequence of orders from the legitimate authority, a vessel is
seized with pure intention, the claim of the injured party for dam-
ages would be against that government from which the orders pro-
ceeded, and would be a proper subject for negotiation. But I have
been convinced that I was mistaken, and I have receded from this
first opinion. I acquiesce in that of my Brethren, which is that the
instructions cannot change the nature of the transaction, nor legalize
an act which, without those instructions, would have been a plain
trespass.
It becomes, therefore, unnecessary to inquire whether the prob-
able cause afforded by the conduct of the Flying Fish to suspect her
of being an American would excuse Captain Little from damages for
having seized and sent her into port, since, had she been an Ameri-
can, the seizure would have been unlawful. Captain Little, then,
must be answerable in damages to the owner of this neutral vessel,
and as the account taken by order of the Circuit Court is not ob-
jectionable on its face, and has not been excepted to by counsel be-
fore the proper tribunal, this court can receive no objection to it.
There appears, then, to be no error in the judgment of the Cir-
cuit Court, and it must be affirmed with costs."
STETSON v. KEMPTON.
(Supreme Judicial Court of Massachusetts, 1816. 13 Mass. 272, 7 Am.
Dec. 145.)
Trespass against the defendants, for taking and carrying away
the plaintiff's chaise and harness, and converting them to their own
The plaintiff had died since the last continuance; and upon
use.
39 See Otis v. Bacon, 7 Cranch, 589, 3 L. Ed. 448 (1813); Tracy v. Swart-
wout, 10 Pet. 80, 9 L. Ed. 354 (1836); Hendricks v. Gonzalez, 67 Ted. 351, 14
C. C. A. 059 (1893).
Ch.7)
335
ACTIONS TO RECOVER DAMAGES OR MONEY.
motion of his administrator, he was admitted to prosecute the suit,
the defendants opposing. The cause was submitted to the deter-
mination of the court, upon an agreed statement of facts, in sub-
stance as follows:
The defendants were duly chosen and qualified as assessors for the
town of Fairhaven for the year 1814, and on the 8th day of October
in that year, in pursuance of the duties of their office, assessed upon
the inhabitants of said town a tax, amounting in the whole to the sum
of $3,719.73, of which sum the plaintiff, being a taxable inhabitant
of the town, was assessed the sum of $14.91, for the nonpayment
of which tax his chaise and harness were seized and sold by the
collector, to whom the said assessment had been committed, and
who was duly qualified to execute the duties of that office, the sur-
plus of the proceeds of the sale, over the tax and legal charges,
having been paid to the plaintiff.
Of the said sum of $3,719.73, the sum of $1,200 was, at a legal
meeting of the inhabitants of said town holden on the 2d of August,
1814, voted to be raised "for the payment of additional wages allowed
the drafted and enlisted militia of said town, and other expenditures
of defense.” At the time when the said sum of $1,200 was so voted
to be raised, and when the same was assessed as aforesaid, an open
war existed between the United States and Great Britain. The
enemy were then on the coast, and in sight of said town; and had
made an attempt to land, but retreated. The town was greatly and
eminently exposed to their ravages, who were then laying waste and
destroying the dwellings and other property of the people situated
on the coast; and in the opinion of the inhabitants of the town, it
was necessary to raise and expend the said sum of money for the
purposes expressed in the vote above recited, and for the immediate
protection and defense of the inhabitants of the town, who voted
unanimously to raise the same for the said purposes, the plaintiff
himself not having been present at said meeting. Not one-half of
the said $1,200 was in fact expended for the object stated in the
said vote; and the residue, so far as collected, has been applied to
the legal and necessary expenses and uses of the town.
If upon these facts the court should be of opinion that the plaintiff
was entitled to recover, judgment was to be rendered for him, upon
a default of the defendants, and his damages assessed by a jury;
otherwise he was to become nonsuit and the defendants recover their
costs.
PARKER, C. J. 40 [after stating the opinion of the court that there
was no lawful authority to raise the sum in question). Thus then
the general question is disposed of; but it is further relied upon in
the defense that the defendants, being in the assessment of taxes
authorized by vote servants or ministerial officers, ought not to be sub-
ject to an action for the mere execution of an official duty.
40 Only a portion of the opinion of Parker, C. J., is printed.
336
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
It is true that generally executive officers are not liable to actions
for the regular execution of precepts apparently lawful, and which
come from an authority which has jurisdiction over the subject.
But we cannot view assessors in this light. They are not compell-
able to assess an illegal tax. They may exercise their judgment on
the subjects for which the money appears to be voted; and they
may refuse to cause the collection to be enforced, if they deem the
tax illegal. If they are not liable to an action for causing an arrest,
or the seizure of property, for the nonpayment of an illegal tax,
it is difficult to find any remedy for an injured citizen in cases of this
nature. The constable or collector is not answerable, because he acts
in obedience to a warrant under the hands and seals of the assessors,
who have jurisdiction over the subject, and authority to assess a
tax, and to issue their warrant; and it would be dangerous to vest
such officers with a right to question the legality of the proceedings
which precede the assessment.
If an action would lie against the town, it could only be for the
money actually received into the treasury, which, in most cases of
distress, would be but a partial remedy. The assessors must then
be answerable, or there will be a defect of justice. In the cases
first cited, the action was against the assessors, and no objection was
made on that ground; and it may be also remarked that actions have
been uniformly sustained against assessors, when a sum has been
assessed which was not within the authority of the town to raise.
It is further objected that, as part of the money composing this
tax was raised for legal purposes, the assessment must be considered
so far legal as to support the warrant issued by the defendants; oth-
erwise they may be held to pay in dainages for money which law-
fully belonged to the town. But when a part of aº tax is illegal, all
the proceedings to collect it must be void, as it is impossible to sepa-
rate and distinguish, so that the act should be in part a trespass and
in part innocent.41 This point may also be considered as settled in
the two cases cited; for in both those cases the greater part of the
sum assessed was for lawful purposes. Whether the damages may
not be diminished by the jury, in proportion to the sum which shall
appear to be a lawful subject of taxation, may be considered in the
inquiry which is yet to be had by the jury.
Defendants de faulted,
*
* 42
41 On this point, see Colton v. Hanchett, 13 Ill. 615 (1832).
42 See Rev. Laws Mass. C. 12, $ 98 (St. 1823, c. 138, § 5): "Assessors shall
not be responsible for the assessment of a tax assessed by them in pursuance
of a vote for that purpose, certified to them by the clerk or other proper
officer of a city, town, or fire district, except for the want of integrity and
fidelity on their own part.”
See Lincoln v. Worcester, 8 Cush. (Mass.) 55 (1851), post p.359.
+
Ch.7)
337
ACTIONS TO RECOVER DAMAGES OR MONEY.
GUPTAIL et al. v. TEFT.
(Supreme Court of Illinois, 1855. 16 Ill. 365.)
Declaration in trespass quare clausum fregit, for breaking and
entering a certain close in the town of Hanover, in said county of
Cook, situate on section 31, and breaking down, prostrating and de-
stroying 300 rods of fencing, and breaking the boards, rails and
posts, and destroying the lumber whereof the same was made, and
trampling down the herbage, etc. Damages, $1,000.
Pleas: (1) General issue. (2) The following special pleas:
"And the said defendant, John Guptail, for further plea in this
behalf, by leave, etc., says plaintiff actio non, because he says, that
the said close in said declaration mentioned, is situate at and within
road district number ten (10), in the town of Hanover, in the said
county of Cook; that the said town was, at the time when, etc., or-
ganized under the act of the General Assembly of the state of Il-
linois, approved February 17, A. D. 1851, entitled 'An act to provide
for township organization’; that on the 10th day of June, A. D. 1854,
Andrew Spitser, S. N. Campbell, and Christophe Sohle, were com-
missioners of highways in said town of Hanover, duly elected and
qualified, and then and there, by virtue of their said office, and ac-
cording to the force of the statute aforesaid, had the care and su-
perintendence of the highways and bridges in said town, with power
to lay out new highways, and to regulate and alter pre-existing high-
ways in said town, and cause the same to be repaired, kept open
and free from obstructions; that on the said 10th day of June, the
said defendant was overseer of highways in said road district number
ten (10), in the said town of Hanover, duly chosen and qualified
as such; that it then and there became, and was, the duty of this
defendant, as overseer of highways, to open new highways, and re-
move all obstructions to pre-existing highways, within his said dis-
trict, when thereunto required by the said commissioners of high-
ways; that on the said 10th day of June, the said commissioners of
highways made and delivered to this defendant an order, in the words
and figures following, to wit:
'Hanover, June 10, 1854.
“'To John Guptail, Overseer of Road District No. 10, Town of Han-
over:
""Sir: Complaint having been made to the commissioners of
highways in and for the town of Hanover, Cook county, that the
highway running on the line between the sections thirty (30) and
thirty-one (31) is obstructed by a fence owned by Jonathan Teft, Sr.,
and he having been legally notified to remove the same, and not having
complied, you are hereby ordered by the undersigned, commissioners of
highways for the town of Hanover aforesaid, to remove, or cause
HR.ADM.LAW-22
338
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
the same to be removed, said fence within twenty days after the
receipt of this order. Andrew Spitser,
'Christophe Sohle,
“'S. N. Campbell,
“"Commissioners of Highways.'
"And the said defendant avers that the said highway described
in said order was the same identical close in the said declaration
mentioned, the said close being then and there part and parcel of an
inclosed field; and the said defendant further avers that in obedience
to said order he did, at the time when, etc., break and enter upon
the close in the said order and in the said plaintiff's declaration men-
tioned, and pull down the said fence of the said plaintiff, and re-
move the same from off the said close or highway, as he lawfully
might do, for the cause aforesaid; and in so doing he, the said de-
fendant, with feet in walking did a little injure the herbage and grass,
corn and grain then standing and growing upon the said close, and
did a little break the boards, rails and posts of which said fence was
erected, doing then and there no unnecessary damage to the said
plaintiff, which are the same supposed trespasses in the said declara-
tion mentioned, and this defendant is ready to verify, etc. Where-
fore, he prays judgment," etc. 43
Plaintiff demurred to each of the said special pleas, in which de-
fendants respectively joined.
Interlocutory judgment upon demurrer for plaintiff, general is-
sue withdrawn, jury impaneled assessed the plaintiff's damages, $160.
Final judgment.
Error assigned: In sustaining plaintiff's demurrer to the said de-
fendants' pleas.
Cause tried before J. M. Wilson, Judge, and a jury, at February
terin, 1855.
CATON, J. We are of the opinion that the demurrer to the two
special pleas was properly sustained by the court below. They jus-
tify the trespass complained of under an order issued by the com-
missioners of the town of Hanover, directing the defendant Guptail,
who was overseer of highways, to open a public highway on the line
between sections 30 and 31, in that town, but they nowhere show
that there was a legally laid out highway there. Unless there was
such highway there, the commissioners of highways had no author-
ity to order a road to be opened. They had no jurisdiction to act
in the premises, and their order to the defendant was a simple nul-
lity, conferring upon him no authority whateyer. Only in such a
case does the statute authorize them to issue such an order. Upon
the argument an attempt was made to liken this order to a writ is-
sued by a court of justice, which, if regular upon its face and
emanating from a court having authority to issue such writs, is
43 A special plea þy the other plaintiffs in error, inhabitants required to
render road labor, is omitted.
Ch.7
339
ACTIONS TO RECOVER DAMAGES OR MONEY.
a justification to a ministerial officer who executes it, although in fact
it is issued in a case not warranting it. In such a case the ministerial
officer is not bound to go behind the writ and inquire into the reg-
ularity of the previous proceedings. Were the cases analogous, the
argument would be conclusive; but they are not. The commis-
sioners of highways do not constitute a court in any sense, although
some portion of their duties may be of a judicial character. Yet
this is so in a very limited sense, and the duty in question was not of
that character. Not only the commissioners themselves, but others
who would seek a justification under their orders, must take the re-
sponsibility of showing that a case existed which justified them in
issuing their order.
This the pleas do not show, and the judgment must be affirmed.
Judgment affirmed.44
CHEGARAY V. JENKINS.
(Court of Appeals of New York, 1851. 5 N. Y. 376.)
This action was commenced in the Superior Court of the City of
New York to recover damages for the taking of personal property
of the plaintiff (Madame Chegaray) by the defendant. The defend-
ant, who was a constable of the city and county of New York, justified
the taking by virtue of a warrant issued to him by the receiver of
taxes for the city and county of New York for the collection of a
tax alleged to have been duly assessed and imposed by the super-
visors of that city and county against the plaintiff, and upon certain
premises in the city of New York, owned and occupied by the plain-
tiff, and which were liable to taxation. The circunstances under
which the assessment was made and the warrant issued, are stated in
the opinion of Chief Judge Ruggles. The plaintiff obtained a ver-
dict and judgment at the Special Term, which on bill of exceptions
was reversed at the General Term, and judgment rendered in favor
of the defendant. The plaintiff appealed to this court. See 3 Sandf.
409.
RUGGLES, C. J. 45
But there is an insuperable objection to
the plaintiff's recovery in this action against the collecting officer.
By the act of 1843 (chapter 230) the office of collector of taxes is
abolished, and that of a receiver of taxes is created. By article 2 of
that act the supervisors are required to cause the assessment rolls of
each ward to be delivered to the receiver, with warrants annexed for
che collection of the taxes from each person assessed on or before
the 25th of September in each year. If the tax remains unpaid to
him on the 15th of April following, the receiver is authorized to issue
*
44 See, accord, Mill v. Hawker, I. R. 10 Ex. 92 (1875); Shoup y. Shields,
116 Ill. 488, 6 N. E. 502 (1886).
45 Only a portion of the opinion of Ruggles, C. J., is printed.
340
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
1
his warrant directed to the sheriff or to any constable or marshal of
the city and county, commanding him to levy the tax with interest
by distress and sale of the goods of the person against whom the
warrant is issued, and to pay the same over to the receiver.
The plaintiff's property was assessed by the officers authorized to
make assessments in the ward where the property was situated, the
assessment was confirmed by the supervisors, the roll and warrant
were delivered to the receiver, the tax remained unpaid until after
the day mentioned in the statute, and the receiver issued his warrant
to the defendant, a constable, for its collection by distress and sale.
It is admitted that the warrant was in due form of law. There is no
pretense that anything appeared on its face showing a want of
authority in the assessors in making the assessment, in the super-
visors in confirming it, or in the receiver in issuing his warrant. The
warrant, therefore, was a perfect justification to the officer in taking
the plaintiff's property. The case of Savacool v. Boughton, 5 Wend.
170, 21 Am. Dec. 181, is conclusive on this point. It was there settled
that a ministerial officer is protected in the execution of process,
whether the same issue from a court of general or limited jurisdic-
tion, although such court have not in fact jurisdiction of the case,
provided it appears on the face of the process that the court has juris-
diction of the subject-matter, and the process in other respects shows
no want of authority.
The principle established in the case here cited is applicable to the
case before the court. The assessors, in determining whether the
plaintiff's property was taxable as a dwelling, or exempt as a seminary
of learning, acted judicially and within the sphere of their duty. But
being officers clothed with limited powers conferred by statute, their
decision on a question in which their own authority to act was in-
volved, was not for all purposes conclusive. The general principle is
that the proceedings of magistrates and officers having special and
limited jurisdiction must bear on their face the evidence of their
jurisdiction, or they will be judged invalid, and that in collateral
actions their judgments may be questioned and disregarded, if it ap-
pear that in fact they had no authority to act in the given case.
Perhaps in the present case, if the defendant had sold the plaintiff's
property for the tax in question, the legality of the tax might have
been an open question between the plaintiff and the purchaser in an
action to recover the property. But the assessors, having the general
authority to make assessments for taxation within the ward in which
the plaintiff's property was situated, had jurisdiction of the subject-
matter of the assessment in question, and the delivery of the assess-
ment roll and warrant to the receiver conferred on him the authority
of issuing his warrant to the defendant as one of the constables of
the city and county. It was no part of the duty of the defendant, a
subordinate officer, to overrule or to dispute the authority of his
superiors, unless upon grounds apparent on the face of their man-
Ch.
341
ACTIONS TO RECOVER DAMAGES OR MONEY.
date. The law does not give him the means of ascertaining extrinsic
facts for this purpose, nor does it attribute to him the capacity for
reviewing the assessment on such facts, if they could be ascertained.
The cases of Suydam v. Keyes, 13 Johns. 444, Smith v. Shaw,
12 Jolins. 257, and Wise v. Withers, 3 Cranch, 331, 2 Lc. Ed. 457,
so far as they countenance the contrary doctrine, are overruled in
Savacool v. Boughton above referred to. The constable must be
protected by the law, in the discharge of a duty imposed by law. The
plaintiff in this case was not without remedy. Application might have
been made in the first instance to the assessors for a review of their
assessment (1 Rev. St. p. 393, § 22), and if that failed the supervisors
of the city and county of New York were authorized by Act May
2, 1844, c. 250, § 2, to correct any erroneous assessment within six
months after the return of the assessinent rolls.
Whether the error in this assessment might have been corrected
on a certiorari to the assessors, or to the supervisors after having
made the proper application to them, without success, for relief, is not
material to the present question. The constable cannot be made
responsible on the ground that no relief elsewhere can be had.
Judgment affirmed. 40
SECTION 38.-SAME-ACTION AGAINST SUPERIOR
OFFICER
WHITFIELD v. LORD LE DESPENCER.
*
(Court of King's Bench, 1778. 1 Cowp. 754.)
Action on the case against the Postmaster General on account of
the loss of a bank note for £100. sent by the plaintiff in a letter.
The bank note had been stolen by a sorter in the post office in London.
who had been convicted and executed for the offense.
Lord MANSFIELD. 47
I shall consider this question in two
lights: (1) As it stood in the year 1699, before the determination
of Lane v. Cotton, 12 Mod. 472. (2) As it stands now, since that
determination; and also, what has been done in consequence of that
decision. And first as it stood in the year 1699.
The post office, as Mr. Lee has truly said, was first erected during
the usurpation, by an ordinance of Cromwell, and afterwards more
46 Accord: Erskine v. Hohnbach, 14 Wall. 613, 20 L. Ed. 745 (1872); Stuts-
man County v. Wallace, 142 U. S. 293, 12 Sup. Ct. 227, 35 L. Ed. 1018 (1892);
Throop, Public Officers, SS 756_770.
See, however, Nichols v. Walker & Carter, 4 Cro. Car. 394 (1634).
47 Only a portion of the opinion of Lord Mansfield is printed.
342
(Part 2
RELIEF AGAINST ADJIINISTRATIVE ACTION.
fully regulated by St. 12 Car. II, c. 35. There never had been
action brought, either upon that ordinance or upon the statute, till
the case of Lane v. Cotton; and the same mode of action that is now
brought was the mode fixed upon in the case of Lane v. Cotton. But
neither from the draught of the declaration by the advisers of that
action, nor in the opinion of the judges upon the question, does it ap-
pear to have entered into the imagination of either that this was a
demand upon the fund, as it has been now argued; for the form of
action is not applicable to such a demand. If there could be a demand
upon the fund, it must be by a totally different form of action. But
this is a demand upon the postmaster personally, upon the ground of
a neglect in him by his own act, or constructively so, by the fault of
his servant. If the fund were in the nature of a policy of insurance,
to insure every man, who sends bills or notes by land or sea carriage,
from a loss by robbery or neglect, such contingency would be a de-
duction out of the fund; and no doubt in that case, if a loss were to
happen, upon an action brought against the proper officers they
would be liable, being bound by the positive constitution of the office
to insure every person for the fixed and established rate of postage.
But here the act of Parliament has appropriated the whole revenue.
Therefore, if a loss is paid, there must be an item of it; and that
item must come under the appropriation. But it is manifest no such
idea was ever thought of at the time. If it had been thought of, the
ordinance of Cromwell, or the act of Parliament, would in terms
have charged the fund for all losses arising from neglect or other-
wise.
But neither this action, nor the case of Lane v. Cotton, is founded
upon the ground of the fund being liable. What then is the ground?
It is that the postmaster in consequence of the hire he receives, is
liable for all the damage that may happen, whether owing to the
negligence or dishonesty of the persons employed under him to con-
duct and carry on the business of the office. If that position were
founded in the extent in which it has been stated, it would go the
length of making the defendants liable in all cases whatsoever. But
the argument of Lord Chief Justice Holt, who differed from the other
judges in the case of Lane v. Cotton, does not extend so far as
that; for he takes a difference between the case of a letter lost in
the office by a servant employed under the postmaster, and that of
a loss upon the road, or by the mail being robbed after the letter has
been sent safe out of the office. The ground of Lord Chief Justice
Holt's opinion in that case is founded upon comparing the situation of
the postmaster to that of a common carrier, or the master of a ship
taking goods on board for freight. Now, with all deference to so
great an opinion, the comparison between a postmaster and a carrier,
or the master of a ship, seems to me to hold in no particular what-
soever. The postmaster has no hire, enters into no contract, carries
on no merchandise or commerce. But the post office is a branch of
Ch.)
343
ACTIONS TO RECOVER DAMAGES OR MONEY.
1
· revenue, and a branch of police, created by act of Parliament. As
a branch of revenue, there are great receipts; but there is likewise a
great surplus of benefit and advantage to the public, arising from the
fund.
As a branch of police, it puts the whole correspondence of the
kingdom (for the exceptions are very trifling) under government, and
intrusts the management and direction of it to the crown, and officers
appointed by the crown. There is no analogy therefore between the
case of the postmaster and a common carrier. The branch of reve-
nue and the branch of police are to be governed by different officers.
The superior has the appointment of the inferior officers; but they
give security to the crown. One requisite is that they shall take the
oaths taken by all public officers. Another strong guard is, that they
are made subject to heavy penalties; and this is carried so far that
what in the case of a common carrier, or any other person, would be
only a breach of trust, is in them declared to be a capital felony. All
these advantages the law provides for the security of the subject, in
consideration of their being obliged to send their letters by this mode
of conveyance. But the statute does not make the postmaster liable
for any act done, except in one particular case, which is very re-
markable, because it makes him liable for his own fault only (and
not for that of his deputies), in a case where it is hardly possible
for the postmaster himself to be personally in fault. The statute
(section 5) creates a monopoly in the postmaster and his deputies or
substitutes, of providing post horses. And if any other person pre-
sumes to let to hire any post horse, for the purpose of carrying
letters, etc., he is liable to a penalty of £5. except where the post-
master or his deputies do not furnish horses within half an hour after
an application made; for then the party is at liberty to hire a horse
elsewhere. And in that case, “if it be through default or neglect of
the postmaster, or his deputy, that such person fail of being furnish-
ed with a sufficient horse or horses in time, then the postmaster or
his deputies are to forfeit £5."
As to an action on the case lying against the party really offending,
there can be no doubt of it; for whoever does an act by which
another person receives an injury is liable in an action for the injury
sustained. If the man who receives a penny to carry the letters to
the post office loses any of them, he is answerable; so is the sorter in
the business of his department. So is the postmaster for any fault
of his own.
Here no personal neglect is imputed to the defendants,
nor is the action brought on that ground; but for a constructive neg-
ligence only, by the act of their servants. In order to succeed, there-
fore, it must be shown that it is a loss to be supported by the post-
master, which it certainly is not.
As to the argument that has been drawn from the salary which
the defendants enjoy: In a matter of revenue and police under the
authority of an act of Parliament, the salary annexed to the office is
344
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RELIEF AGAINST ADMINISTRATIVE ACTION.
for no other consideration than the trouble of executing it. The
case of the postmaster, therefore, is in no circumstance whatever
similar to that of a common carrier; but he is like all other public
officers, such as the lords commissioners of the treasury, the com-
missioners of the customs and excise, the auditors of the exchequer,
etc., who were never thought liable for any negligence or misconduct
of the inferior officers in their several departments.
Thus then the question stood in the year 1699. In that year a
solemn judgment was given that an action on the case would not lie,
against the Postmaster General, for a loss in the office by the neg-
ligence or fault of his servant. The nation understood it to be a
judgment; and therefore it makes no difference, if what has been
thrown out were true, and the writ of error was stopped in the way
that has been mentioned. For the bar have taken notice of it as a
judgment; the Parliament and the people have taken notice of it;
every man who has sent a letter since has taken notice of it; many
acts of Parliament for the regulation and improvement of the post
office, and other purposes relative to it, have passed since, which by
their silence have recognized it. The mail has been robbed a hundred
times since, and no action whatever has been brought. What have
merchants done since and continue to do at this day, as a caution and
security against a loss? They cut their bills and notes into two or
three parts, and send them at different times; one by this day's post,
the other by the next. This shows the sense of mankind as to their
remedy. If there could have been any doubt therefore before the
determination of Lane v. Cotton, the solemn judgment in that case,
having stood uncontroverted ever since, puts the matter beyond dis-
pute. Therefore, we are all clearly of opinion the action will not lie.
PER CURIAM. Judgment for the defendants.
KEENAN v. SOUTHWORTH.
110 Mass. 474, 14 Am.
(Supreme Judicial Court of Massachusetts, 1872.
Rep. 613.)
Tort against the postmaster of East Randolph, to recover damages
for the loss, by the defendant's negligence, of a letter addressed to
the plaintiff. At the trial in the superior court, before Pitman, J., the
plaintiff introduced evidence, not now necessary to report, that the
letter was received at the post office at East Randolph, and was lost
by the negligence or wrongful conduct of one Bird, who was the
postmaster's clerk. The plaintiff having disclaimed "any actual par-
ticipancy or knowledge of the acts of Bird on the part of the de-
fendant," the judge ruled that the defendant was not liable for any
careless, negligent or wrongful acts of Bird; and, by consent of the
plaintiff, he directed a verdict for the defendant, and reported the
Ch.7)
345
ACTIONS TO RECOVER DAMAGES OR MONEY.
case for the consideration of this court. If the ruling was wrong,
the verdict to be set aside, and the case to stand for trial; otherwise,
judgment for the defendant on the verdict.
GRAY, J. The law is well settled, in England and America, that
the Postmaster General, the deputy postmasters, and their assistants
and clerks, appointed and sworn as required by law, are public of-
ficers, each of whom is responsible for his own negligence only, and
not for that of any of the others, although selected by him, and sub-
ject to his orders. Lane v. Cotton, 1 Ld. Raym. 646, 12 Mod. 472;
Whitfield v. Le Despencer, Cowp. 754; Dunlop v. Munroe, 7 Cranch,
242, 3 L. Ed. 329; Schroyer v. Lynch, 8 Watts (Pa.) 453; Bishop
v. Williamson, 11 Me. 495; Hutchins v. Brackett, 22 N. H. 252, 53
Am. Dec. 248.
The ruling at the trial was therefore right; and the plaintiff, having
consented to a verdict for the defendant, reserving only the question
of the correctness of that ruling, cannot now raise the question
whether there was sufficient evidence of the defendant's own negli-
gence to be submitted to the jury.
Judgment on the verdict. 48
48 See Robertson v. Sichel, 127 U. S. 507, 8 Sup. Ct. 1286, 32 L. Ed. 203
(1888), accord.
The liability of certain officers connected with the administration of justice
who were paid by fees (especially sheriffs) for their deputies is established by
common law and frequently recognized by statute. See Rev. Laws Mass. C.
23, § 1; Rev. St. Ill. C. 125, § 13.
St. Westm. II, 13 Edw. I, c. 11: "And if the keeper of the gaol have not
wherewith he may be justified, or not able to pay, his superior, that commit-
ted the custody of the gaol unto him, shall be answerable (respondeat superior
suus) by the same writ."
Also, 2 Henry VI, c. 10, § 1423: "All the officers made by the King's letters
patents royal within the said courts (of our lord the King] which have power
and authority by virtue of their offices of old times accustomed to appoint
clerks and ministers within the same courts shall be charged and sworn to a;)-
point such clerks and ministers, for whom they will answer at their peril.
which be sufficient, faithful, and attending to that which pertaineth to them
in performance of the business, as well of the King, as of his people."
See Hazard v. Israel, 1 Bin. (Pa.) 240, 2 Am. Dec. 438 (1808); Campbell v.
Phelps, 1 Pick. (Mass.) 62, 66, 11 Am. Dec. 139 (1822); Wood v. Farnell, 50
Ala. 546 (1874); McNutt v. Livingston, 7 Smedes & M. (Miss.) 641 (1846).
The following additional cases in this collection are suits against officers :
Grindley v. Barker, 1 Bos. & P. 229 (1798); McCoy v. Curtice, 9 Wend. (N.
Y.) 17, 24 Am. Dec. 113 (1832); Meeker v. Van Rensselaer, 15 Wend. (N. Y.)
397 (1836); Johnson v. Stedman, 3 Ohio, 94 (1827); Eldred v. Sexton, i)
Ohio, 216 (1831); Patterson v. Miller, 2 Metc. (Ky.) 493 (1959); Neff 1.
Paddock, 26 Wis. 546 (1870); Hubbell v. Goodrich, 37 Wis. 84 (1875); Wil-
cox v. Hemming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep. 625 (1883); King
v. Davenport, 98 Ill. 305, 38 Am. Rep. 89 (1881); Baldwin v. Smith, 82 Ill.
162 (1876); Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 38.7
(1894); Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St.
Rep. 262 (1897.); Warne v. Varley, 6 T. R. 443 (1795); Thompson v. Farrer,
9 Q. B. D. 372 (1882); Miller v. Horton, 152 Mass. 510, 26 N. E. 100, 10 L.
R. A. 116, 23 Am. St. Rep. 850 (1891); De Lima y. Bidwell, 182 U. S. 1, 21
Sup. Ct. 743, 45 L. Ed. 1041 (1901); Gonzales v. Williams, 192 U. S. 1, 2+
Sup. Ct. 171, 48 L. Ed. 317 (1904); Martin v. Mott, 12 Wheat. 19, 6 L. Ed.
537 (1827); Amy v. Supervisors, 11 Wall. 136, 20 L. Ed. 101 (1870).
346
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RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 39.-ACTIONS AGAINST MUNICIPAL CORPO-
RATIONS IN TORT 49
LEVY V. MAYOR, ALDERMEN AND COMMONALTY OF
CITY OF NEW YORK.
* 50
(Superior Court of City of New York, 1848. 1 Sandf. 465.)
Trespass on the case.
The city of New York, having the requisite power, enacted an ordi-
nance prohibiting swine from running at large in the streets, with
a suitable penalty, and a provision for impounding the delinquent
animals. The plaintiff's infant son was attacked by a swine straying
in the street and was mortally injured.
Demurrer to declaration.
SANDFORD, J. The plaintiff's counsel well observed that there was
no precedent for such an action as this, and we are compelled to
add that there is no principle upon which it can be sustained.
The corporation is undoubtedly vested with certain legislative
powers, among which is the authority to restrain swine from run-
ning at large in the streets; and they have exercised it by enacting
an ordinance to that effect. The idea, that because they may prohibit
a nuisance, that therefore they must not only pass a prohibitory law,
but must also enforce it, at the hazard of being subjected to all
damages which may ensue from such nuisance, is certainly novel.
The corporation of the city in this respect stands upon the same
footing within its own jurisdiction as the state government does in
respect of the state at large.
It is the duty of the government to protect and preserve the rights
of the citizens of the state, both in person and property, and it should
provide and enforce wholesome laws for that object. But injuries
to both person and property will occur, which no legislation can
prevent, and which no system of laws can adequately redress. The
government does not guaranty its citizens against all the casualties
incident to humanity or to civil society; and we believe it has never
been called upon to make good, by way of damages, its inability to
protect against such misfortunes.
There would be no end to the claims against this city and state,
if such an action as this is well founded. If a man were to be run
over, and his leg broken, by an omnibus racing in the street, he would
forthwith sue the city for damages, because the corporate authorities
49 The question of liability for neglect of ministerial duties is not consid-
ered. See full review of authorities in Hill v. Boston, 122 Mass. 344, 23 Am.
Rep. 332 (1877.).
50 The statement is abridged.
Ch. 7)
347
ACTIONS TO RECOVER DAMAGES OR MONEY.
neglected to enforce their ordinance against racing and furious driv-
ing in the public streets. So, if some miscreant, by placing a stick
of timber on a railroad track, should cause the destruction of a pas-
senger train, with great loss of life and limb, the Legislature would
be petitioned by the injured survivors, and the relatives of the de-
ceased, for the damages thereby occasioned, on the ground that the
public servants should have enforced the statute enacted against such
offenses.
There are innumerable illustrations of the application of the prin-
ciple. It suffices to say that no government, whether national, state
or municipal, ever assumed, or was subjected to, a general liability of
this description.
There is no analogy between a municipal corporation in respect of
its legislative functions, and the duty or the liability of turnpike com-
panies, or other private corporations aggregate. And the same may
be said of the duty of commissioners of highways, and like public
officers, clothed with adequate power for the performance of some
plain executive or ministerial duty.
As to the argument that the common law imposes upon the cor-
poration the duty and liability in question, we are unable to appreciate
it. Nor do we understand that, as a corporation, it is subjected per
se to the duty of keeping swine out of the streets.
We have had occasion frequently to hold the city liable for the
negligence and misfeasance of its officers and agents; but the prin-
ciple of that liability has no application here.
Waiving the consideration of the other objections to the action,
which are presented by the demurrers, we must decide that the
suit cannot be maintained.
Judgment for the defendants.51
ASHLEY V. CITY OF PORT HURON.
(Supreme Court of Michigan, 1877. 35 Mich. 296, 24 Am. Rep. 552.)
COOLEY, C. J.52 The action in this case was instituted to recover
damages for an injury caused to the house of plaintiff by the cutting
of a sewer under the direction of the city authorities, and under
city legislation the validity of which is not disputed. The necessary
51 See, accord, Hines v. Charlotte, 72 Mich. 278, 40 N. W. 333, 1 L. R. A.
844 (1888); Jones v. Williamsburg, 97 Va. 722, 34 S. E. 883, 47 L. R. A.
294 (1900).
Contra: Cochrane v. Frostburg, 81 Md. 54, 31 Atl. 703, 27 L. R. A. 728,
48 Am. St. Rep. 479 (1895).
As to statutory liability for damage done by mobs, see Darlington v. Mayor,
etc., 31 N. Y. 164, 88 Am. Dec. 248 (1865) ; Chicago v. Manhattan Cement
CO., 178 Ill. 372, 53 N. E. 68, 45 L. R. A. 848, 69 Am. St. Rep. 321 (1899).
52 Only a portion of the opinion of Cooley, C. J., is printed.
348
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
result of cutting the sewer, the plaintiff claims, was to collect and
throw large quantities of water upon his premises which other-
wise would not have flowed upon them; and it is for an injury
thereby caused that he sues. The evidence offered on the part of the
plaintiff tended to establish the case he declared upon; but the court
instructed the jury that, though they should find the facts to be
as the plaintiff claimed, they must still return a verdict for the de-
fendant. The ground of this decision, as we understand it, was that
the city, in ordering the construction of the sewer and in constructing
it, was acting in the exercise of its legislative and discretionary
authority, and was consequently exempt from any liability to persons
who might happen to be injured. That is the ground that is assumed
by counsel for the city in this court, and it is supposed to be the
ground on which the case was decided in the court below.
In Pontiac v. Carter, 32 Mich. 164, the question of the liability of
a municipal corporation for an injury resulting from an exercise of
its legislative powers was considered, and it was denied that any
liability could arise so long as the corporation confined itself within the
limits of its jurisdiction. That was a case of an incidental injury to
property caused by the grading of a street. The plaintiff's premises
were in no way invaded, but they were rendered less valuable by the
grading, and there was this peculiar hardship in the case, that the
injury was mainly or wholly owing to the fact that the plaintiff's
dwelling had been erected with reference to a grade previously es-
tablished and now changed. In the subsequent case of City of De-
troit v. Beckman, 34 Mich. 125, 22 Am. Rep. 507, the same doctrine
was reaffirmed. That was a case of injury by being overturned
in a street in consequence of what was claimed to be an insufficient
covering of a sewer at a point where two streets crossed each other.
It was counted upon as a case of negligence, but the negligence con-
sisted only in this: That the city had failed to provide for covering
the sewer at the crossing of a street for such a width as a proper re-
gard for the safety of people passing along the street would require.
If this case is found to be within the principle of the cases referred
to, the ruling below must be sustained, and that, we think, is the only
question we have occasion to discuss.
The cases that bear upon the precise point now involved are numer-
ous.
In Proprietors of Locks, etc., v. Lowell, 7 Gray (Mass.) 223,
it was held that a city was liable in an action of tort for draining
water through sewers and drains into a canal owned by a private cor-
poration, thereby causing injury to the canal; the conclusion being
planted on the right of the corporation to an unmolested enjoyment
of the property."
In Rochester White Lead Co. v. Rochester, 3 N. Y. 463, 53 Am.
Dec. 316, the city was inade to respond in damages for flooding
private premises with waters gathered in a sewer. This case is com-
mented on in Mills v. Brooklyn, 32 N. Y. 489, and distinguished from
Ch.7)
349
ACTIONS TO RECOVER DAMAGES OR MONEY.
one in which the injury complained of arose from the insufficiency
of a sewer which was constructed in accordance with the plan deter-
mined upon. Obviously the complaint in that case was of the legis-
lation itself, and of incidental injuries which it did not sufficiently
provide against. The like injuries might result from a failure to
construct any sewer whatever; but clearly no action could be sustain-
ed for a mere neglect to exercise a discretionary authority. Compare
Smith v. Mayor, etc., 6 Thomp. & C. (N. Y.) 685, 4 Hun, 637;
Nims v. Mayor, etc., 59 N. Y. 500.
Cases of flooding lands by neglect to keep sewers in repair, of
which Barton v. Syracuse, 37 Barb. 292, and 36 N. Y. 54, is an in-
stance, are passed by, inasmuch as it is not disputed by counsel for
the defendant in this case that for negligent injuries of that descrip-
tion the corporation would be responsible. Those cases are supposed
by counsel to be distinguished from the one before us in this: That
here the neglect complained of was only of a failure to exercise a
legislative function, and thereby provide the means for carrying
off the water which the sewer threw upon the plaintiff's premises.
The distinction is that the obligation to establish and open sewers is
a legislative duty, while the obligation to keep them in repair is
ministerial. But it is not strictly the failure to construct sewers to
carry off the water that is complained of in this case. It is of the
positive act of casting water upon the plaintiff's premises by the sewer
already constructed.
An action like the one at bar was sustained in Nevins y. Peoria,
41 Ill. 502, 89 Am. Dec. 392, Aurora v. Gillett, 56 Ill. 132, Aurora v.
Reed, 57 Ill. 30, 11 Am. Rep. 1, Alton v. Hope, 68 I11. 167, and Jack-
sonville v. Lambert, 62 Ill. 519. The same is true of Pettigrew v.
Evansville, 25 Wis. 223, 3 Am. Rep. 50, where Dixon, C. J., is at
some pains to distinguish the case from one of merely incidental
injuries. The case of Vincennes v. Richards, 23 Ind. 381, appears by
the report to have turned on this distinction. And see Cotes v. Daven-
port, 9 Iowa, 227.
It is very manifest, from this reference to authorities, that they
recognize in municipal corporations no exemption from responsibility
where the injury an individual has received is a direct injury accom-
plished by a corporate act which is in the nature of a trespass upon
liim. The right of an individual to the occupation and enjoyment of
his premises is exclusive, and the public authorities have no more
liberty to trespass upon it than has a private individual.
A municipal charter never gives and never could give authority to
appropriate the freehold of a citizen without compensation, whether
it be done through an actual taking of it for streets or buildings,
or by flooding it so as to interfere with the owner's possession. His
property right is appropriated in the one case as much as in the other.
Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557; Arimond
*
*
*
350
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
v. Green Bay, etc., Co., 31 Wis. 316; Eaton v. B. C. & M. R. R. Co.,
51 N. H. 504, 12 Am. Rep. 147.
A like excess of jurisdiction appears when in the exercise of its
powers a municipal corporation creates a nuisance to the injury of an
individual. The doctrine of liability in such cases is familiar, and was
acted upon in Pennoyer v. Saginaw, 8 Mich. 534.
* 53
COHEN V. MAYOR, ETC., OF NEW YORK.
(Court of Appeals of New York, 1889. 113 N. Y. 532, 21 N. E. 700, 4 L. R.
A. 406, 10 Am. St. Rep. 506.)
Appeal from Supreme Court, General Term, First Department.
This action was brought by Hannah and Abraham Cohen, as ad-
ministrators, to recover damages for the death of plaintiffs' decedent,
which occurred by reason of a wound in the head caused by the falling
of a pair of thills attached to a grocer's wagon upon him while
the decedent was walking through one of the streets of the city of
New York. Evidence was given on the trial tending to prove the
following facts:
On the morning of October 20, 1879, one Pischel Cohen was walk-
ing through Attorney street in such city, and at the same time an ice
wagon was passing south through that street, and a wagon loaded
with coals was coming north through the same street. A grocery
wagon, without any horse attached, was standing in front of the
grocery store kept by one Marks, who owned the wagon. The thills
were tied up in a perpendicular manner with some kind of string;
and the length of the wagon was parallel with the length of the street.
53 Accord: Miles v. Worcester, 154 Mass. 511, 28 N. E. 676, 13 L. R. A.
841, 26 Am. St. Rep. 264 (1891); Huffmire v. Brooklyn, 162 N. Y. 584, 57
N. E. 176. 48 L. R. A. 421 (1900), destruction of oysters by sewage; Platt
Bros. v. Waterbury, 72 Conn. 531, 45 Atl. 154, 48 L. R. A. 691, 77 Am. St. Rep.
335 (1900) with notes. Contra : Duncan v. Lynchburg (Va., not officially
reported) 34 S. E. 964, 48 L. R. A. 331 (1900); Board of Education of Cin-
cinnati y. Volk, 72 Ohio St. 469, 74 N. E. 646 (1905).
See Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ot. 923, 30 L.
Ed. 75 (1886): "The duties of the municipal authorities, in adopting a gen-
eral plan of drainage, and determining when and where sewers shall be built,
of what size and at what level, are oť a quasi judicial nature, involving the
exercise of deliberate judgment and large discretion, and depending upon con-
siderations affecting the public health and general convenience throughout an
extensive territory; and the exercise of such judgment and discretion, in
the selection and adoption of the general plan or system of drainage, is not
subject to revision by a court or jury in a private action for not sufficiently
draining a particular lot of land. But the construction and repair of sewers
according to the general plan so adopted are simply ministerial duties, and
for any negligence in so constructing a sewer, or keeping it in repair, the mu-
nicipality which has constructed and owns the sewer may be sued by a per-
son whose property is thereby injured."
As to distinction between legislative and ministerial acts, compare Mills
V. Brooklyn, 32 N. Y. 489 (1865), with Barton V. Syracuse, 36 N. Y. 51
(1867).
Ch.7)
351
ACTIONS TO RECOVER DAMAGES OR MONEY.
For some reason the driver of the ice wagon started up his horses,
seemingly for the purpose of passing the grocery wagon before the
driver of the coal wagon should reach it. The street was narrow,
and the ice man's wagon caught in some way against the wheel of
the grocery wagon, and turned the wagon somewhat around, so
that the thills came down on the sidewalk. At that time Cohen was
passing, and the iron on one of the thills struck him on the head
and knocked him down, inflicting an injury upon him, from the effect
of which he died the same day. The string with which the thills
were fastened was a thin, common string; and they had been tied
up that way for several months, but whether with the identical
string used on the occasion when the accident occurred the witness
could not say. The wagon was used by its owner, the grocer, as the
evidence tended to show, for the purpose of facilitating the trans-
action of his private business; and it was in no sense a public cart.
When not in actual use, the wagon was kept in the street in front of
the owner's grocery store, day and night, under a permit which was
granted by defendant in consideration of the payment by the owner
of two dollars therefor. No law or ordinance existed which gave
jurisdiction to the defendant through its common council, or through
any of its officers, to license or permit such a use of the highway.
Upon this evidence as to the manner in which the accident occurred
the court directed the jury to find a verdict for the defendant, and the
plaintiff duly excepted to such direction. The direction was given by
the court below on the ground that the cause of the injury was the
defective manner in which the thills were tied, and there was no
evidence of any notice to the city as to that fact. The General Term
affirmed the judgment of the circuit court, and plaintiffs appeal.
PECKHAM, J. (after stating the facts as above). The storing of the
wagon on the highway was a nuisance. The primary use of a high-
way is for the purpose of permitting the passing and repassing of the
public; and it is entitled to the unobstructed and uninterrupted use
of the entire width of the highway for that purpose, under temporary
exceptions as to deposits for building purposes, and to load and un-
load wagons, and receive and take away property for or in the in-
terest of the owners of the adjoining premises, which it is not now
necessary to more specifically enumerate. The .extent of the right
of such exceptional user was before us in the late case of Callanan
v. Gilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. Rep. 831, and
nothing more need be said regarding it here.
It is no answer to the charge of nuisance that, even with the
obstruction in the highway, there is still room for two or more wagons
to pass, nor that the obstruction itself is not a fixture. If it be perma-
nently or even habitually in the highway, it is a nuisance. The high-
way may be a convenient place for the owner of carriages to keep
them in, but the law, looking to the convenience of the greater num-
ber, prohibits any such use of the public streets. The old cases said
352
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RELIEF AGAINST ADMINISTRATIVE ACTION.
the king's highway is not to be used as a stable yard; and a party
cannot eke out the inconvenience of his own premises by taking in
the public highway. These general statements are familiar, and are
borne out by the cases cited. King v. Russell, 6 East, 427, decided in
May, 1805; Rex v. Cross, 3 Camp. 224; Rex v. Jones, Id. 230; ;
People v. Cunningham, 1 Denio, 521, 43 Am. Dec. 709; Davis v.
Mayor, etc., 14 N. Y. 506, 524, 67 Am. Dec. 186; Callanan v. Gilman,
supra.
Familiar as the law is on this subject, it is too frequently disre-
garded or lost sight of. Permits are granted by common councils
of cities, or by other bodies in which the power to grant them for
some purposes is reposed; and they are granted for purposes in
regard to which the body or board assuming to represent the city
has no power whatever, and the permit confers no right upon the
party who obtains it. As was said by Lord Ellenborough in the case
of Rex v. Jones, supra, the law upon the subject is much neglected,
and great advantages would arise from a strict, steady application of
it. This case is a good example of its neglect. There is no well-
founded claim of the existence of a power in the defendant to issue
such a license. The defendant refers to sections 10 and 27 of chapter
37 of the ordinances of 1859. The former provides for an assign-
ment by the mayor of a stand where the owner of a duly-licensed
public cart may let it remain waiting to be employed, and also a
stand where it may remain at other times upon certain terms, etc.
The latter section refers to a licensed cartman, and provides for
storing his cart in front of his premises under certain regulations.
Neither section has anything to do with a case like this. The Leg-
islature has expressly enacted that the city shall have no power to
authorize the placing or continuing of any encroåchments or ob-
structions upon any street or sidewalk, except the temporary occu-
pation thereof during the erection or repair of a building on a lot
opposite the highway. Consolidation Act, p. 23, § 86, subd. 4;
People v. Mayor, etc., 59 How. Prac. 277; Ely v. Campbell, 59 How.
Prac. 333; Lavery v. Hannigan, 20 Jones & S. 463.
The owner of this wagon was not a cartman, nor was the wagon
used as a public cart, but only as a ineans to enable the grocer to
transact his own private business. He acquired no right by virtue of
the license to store his wagon in the street; and, in doing so, he was
clearly guilty of maintaining a public nuisance. The defendant was
also guilty. It assumed to authorize the erection and continuance
of a public nuisance. To be sure, the legal power to grant the li-
cense to obstruct the street was by the Legislature withheld from
the defendant, yet, nevertheless, it did grant just such a permit and
took compensation on account of it. In thus doing, the city became
a partner in the erection and continuance of such nuisance. It was
a nuisance, not by reason of the manner in which the thills were tied
up, but because the wagon was stored in the street. It was not
o
Ch.7)
353
ACTIONS TO RECOVER DAMAGES OR MONEY.
a mere negative attitude which the defendant adopted, such as would
have been the case had it simply acquiesced in the manner in which
the street was used. In this case it not only acquiesced in such use,
but it actually encouraged it by making out and delivering a license to
clo it; and it received directly and immediately from the owner of
the wagon a compensation for the erection and maintenance of a
nuisance under the authority of such license. Under such circum-
tances the defendant must be held liable the same as if it had itself
inaintained the nuisance; for the owner of the wagon was nothing
more than an agent through whom the defendant did this unlawful
act. Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603.
But, assuming that the city had no right to issue the permit, it
is urged that such license did not authorize the negligence which
caused Cohen's death, and that the act of the defendant was too re-
inote to be regarded as the proximate cause of the damage herein.
We do not think so. The act of the defendant was wrongful, and
it consisted in setting up an obstruction in the public highway, and
this accident happened because of the presence of the obstruction at
the point in question. It was there by the act of the defendant, and,
being there, it has caused the injury. To be sure, it may be said
that, if the thills had not been negligently tied, they would not have
fallen. But that was simply the way in which, by reason of the pres-
ence of the obstruction, the accident occurred. There is always rea-
sonable ground for apprehending accidents 'from obstructions in a
public highway, and any person who wrongfully places them there,
or aids in so doing, must be held responsible for such accidents as
occur by reason of their presence. The obstruction in such case
must be regarded, within the meaning of the law on the subject, as
the proximate cause of the damage.
We think that in a case like this, where no obstruction would
have existed but for the wrongful conduct of defendant, it must be
held responsible for the damage which is caused by reason of the
obstruction, even though it might not have happened if the licensee
had been careful in regard to the manner in which he exercised the
assumed right granted him by the license. The defendant, under
these circumstances, must take the risk of such care, and not an in-
nocent passer-by. This is not a case for the application of the doc-
trine that where the injury results from the negligent mode in which
the licensee exercises the privilege granted to him, which mode is
not part of the license, there must be proof of negligence showing
permission to use, or acquiesence in the use of, the mode after notice
or knowledge on the part of the licensor. That may be the rule
where the thing licensed is legal because of the license, and the il-
legality consists in the manner in which the license is carried out.
The difficulty here does not alone consist in the negligent manner
of fastening up the thills, but the license itself—the permission, with
FR.ADM. LAW—23
354
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
or without a consideration, to obstruct the street at all for any such
purpose as was the case here—is the wrongful act on the part of the
defendant which renders it responsible for the damage naturally
sustained from such obstruction.
We do not say that this principle of responsibility would render
the city liable in every case of a mistaken exercise of power au-
thorizing the use or occupancy of a public street by an individual.
We confine ourselves to the decision of this case, and we simply say
that when the city, without the pretense of authority, and in direct
violation of a statute, assumes to grant to a private individual the
right to obstruct the public highway while in the transaction of his
private business, and for such privilege takes compensation, it must
be regarded as itself maintaining a nuisance so long as the obstruc-
tion is continued by reason of and under such license, and it must
be liable for all damages which may naturally result to a third party
who is injured in his person or his property by reason or in conse-
quence of the placing of such obstruction in the highway. This is
none too severe a liability. It is to be hoped that its enforcement
will tend to the discontinuance of a custom of granting permits or
licenses to do what it is well known the city has no right to au-
thorize or license.. Such licenses, it is matter of public notoriety, are
constantly granted without any semblance of legal authority; and the
licensees are continually acting under them, and obstructing the pub-
lic streets, to the serious inconvenience and danger of the public.
When it is understood that such license has not only no effect in
the way of legalizing an obstruction, but that it simply makes the
city a partner in the maintenance of a public nuisance, and liable
for the damage caused thereby, such knowledge may perhaps re-
strain the utterly illegal practice, and tend in some degree to the
protection of the public in the lawful use of its own highways.
The judgment must be reversed, and a new trial granted, with
costs to abide the event. All concur, except GRAY, J., dissenting on
the ground that, assuming the city could not legally grant a license
to Marks to keep his wagon in the street, that fact, in this case,
was not sufficient to charge the city with liability for the occurrence
complained of. The proximate or immediate cause of the injury to
the plaintiff's intestate was the negligent acts of others. 54
54 See, Landau v. New York, 180 N. Y. 48, 72 N. E. 631, 105 Am. St. Rep.
709 (1904); Van Cleef v. Chicago, 240 Ill. 318, 88 N. E. 815, 23 L. R. A. (N.
S.) 636, 130 Am. St. Rep. 275 (1909); Little v. Madison, 42 Wis. 643, 24
Am. Rep. 435 (1877).
1
Ch.7)
355
ACTIONS TO RECOVER DAMAGES OR MONEY.
CRAIG v. CITY OF CHARLESTON.
(Supreme Court of Illinois. 1899. 180 111. 154, 54 N. E. 184.)
Appeal from Appellate Court, Third District.
Action by Edward C. Craig against the City of Charleston. A
judgment for defendant on demurrer was affirmed by the Appellate
Court (78 Ill. App. 312), and plaintiff appeals. Affirmed.
PER CURIAM. In affirming the judgment of the circuit court for
costs and sustaining the demurrer to the plaintiff's declaration, the
following opinion, delivered by Mr. Justice HARKER, was rendered by
the Appellate Court:
“The sufficiency of the declaration is the only question for our
consideration. Stripped of their surplusage, the material averments
of fact are that the city of Charleston, on an occasion when a large
crowd of people had congregated in the city, appointed one John
Apgar as an officer to prevent the obstruction of the streets by ve-
hicles or otherwise, and placed him in control of one of the streets;
that Apgar was a dangerous and violent nian, and possessed an ungov-
ernable temper and vicious disposition, which facts were known, or
by the exercise of reasonable diligence could have been known, to
the appointing officer; that Apgar, while in charge of the street and
under pretense of discharging his duty, made a brutal and unjustifi-
able assault upon the plaintiff with a stick, whereby the plaintiff lost
one of his eyes, and was otherwise injured. The duties devolving up-
on Apgar by virtue of his appointment were police duties. He
was what is sometimes aptly termed a 'special policeman,' authorized
to perform certain specific acts. It is a familiar rule of law, sup-
ported by a long line of well-considered cases, that a city, in the
performance of its police regulations, cannot commit a wrong through
its officers in such a way as to render it liable for tort.
“It is contended, however, that appellant does not base his right
of recovery against the city upon the wrongful act of Apgar, mere-
ly, but upon the wrongful act of the mayor in appointing such a man
as Apgar, when he knew, or should have known, of his dangerous
and vicious character. The same principle which absolves the city
from liability for Apgar's tortious act applies to the act of the
mayor. The mayor was simply exercising a discretion vested in
him by virtue of his office and the laws of the state.
pointment was a wrongful act, which resulted in injury to the ap-
pellant, the burdens of liability cannot be cast upon the inhabitants
and taxpayers of the city. A municipal corporation, while simply
exercising its police powers, is not liable for the acts of its officers
in the violation of the laws of the state and in excess of the legal pow-
ers of the city. Dill. Mun, Corp. $$ 950, 968; Town of Odell v.
Schroeder, 58 Ill. 353; City of Chicago v. Turner, 80 III. 419; Wil-
If the ap-
356
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
cox v. City of Chicago, 107 Ill. 334, 47 Am. Rep. 434; Blake v.
City of Pontiac, 49 Ill. App. 543.
“Appellant further contends that the placing of Apgar in the
street and in control of it was the creation of a nuisance, upon which
ground it is liable—in fact, his chief contention is that he became
thereby an obstruction in the street-and cites a long list of authori-
ties in support of the proposition that it is the duty of a city to keep
its streets free from obstructions, and a failure in that regard will
render it liable for injuries caused thereby. We cannot regard a
human being, in the exercise of police powers, as an obstruction,
in the sense contemplated by the unquestioned doctrine announced
by those cases. We think the court properly sustained the demurrer
to the declaration."
After a careful consideration of the case, we have reached the same
conclusion as that arrived at by the courts below; and, concurring
in the views of the Appellate Court, we see no necessity for another
opinion on this appeal, but adopt the one above set out as the opin-
ion of this court in the case. The judgment of the Appellate Court
is affirmned.
Judgment affirmed, 55
CITY OF SAN ANTONIO V. WHITE.
(Court of Civil Appeals of Texas. 1900. 57 S. W. 858.)
Action by George M. White against the City of San Antonio.
From a judgment for plaintiff, defendant appeals. Reversed.
JAMES, C. J. Plaintiff, George M. White, was engaged in run-
ning the Maverick Hotel, in San Antonio, about September, 1897.
Texas had quarantined against New Orleans on account of yellow
fever. A theatrical troupe left New Orleans on the last train before
this quarantine was declared and came direct to San Antonio. Sev-
eral (five or six) of the members of this troupe registered at the
Maverick Hotel on the morning of September 7th for breakfast, the
others taking quarters elsewhere in the city. In the early afternoon
the troupe collected at the opera house for a rehearsal, and late
in the afternoon they, 17 or more in all, were, under direction of
the mayor and city physician, taken charge of by police, and taken
in a body to the Maverick Hotel, where, without the consent and
over the protest of plaintiff and his wife, they were quartered as yel-
low fever suspects, on the third floor of the hotel, and there de-
tained by police officers for six days, the officers using the stairways.
The effect of this action upon plaintiff's hotel business was to convert
55 Accord: Buttrick v. Lowell, 1 Allen (Mass.) 172, 79 Am. Dec. 721 (1861);
McIlhenney y. Wilmington, 127 N. C. 146, 37 S. E. 187, 50 L. R. A. 470
(1900); Levin V. Burlington, 129 N. C. 184, 39 S. E. 822, 55 L. R. A. 396
(1901).
Ch.7)
357
ACTIONS TO RECOVER DAMAGES OR MONEY.
it from a profitable business to a losing one, until June following,
when he went out of the business by making a deed of tru
The answer of defendant alleged that the city, under its charter,
had power to make regulations to secure the general health of the
city, to make regulations to prevent the introduction of contagious
diseases into the city, to make quarantine laws for that purpose, and
to enforce the same, and to make all ordinances and regulations to
prevent'the spread of any contagious diseases within the city limits,
and to establish hospitals and pest houses; also that the city council
had ordained that, for the purpose of preventing the introduction of
any contagious disease within the city limits, the mayor should be
authorized by proclamation, and it was made his duty, whenever the
board of health should deem it necessary, to establish quarantine
against all persons coming to the city who were liable to cause the in-
troduction or spread of such contagious disease, as well as the iso-
lation and quarantine of all persons within the city, such quaran-
tine to be carried into effect in accordance with the rules and regula-
tions established by the board of health; and further ordained that
the mayor and board of health should have power to employ guards
and assistants when necessary, and to establish quarantine stations,
pest houses, and hospitals for all persons detained under quarantine
regulations. It was alleged by defendant that the mayor and board
of health, by virtue of said ordinance, for the purpose of preventing
the introduction into the city of yellow fever, did, with plaintiff's
consent, temporarily isolate and quarantine the said persons at plain-
tiff's hotel, to the end that such suspected persons should not mingle
with the people at large and endanger the public health, and that all
the acts of its mayor and board of health were done and performed
in good faith, and for the public good, and such acts were due in
respect to governmental functions for which defendant is not liable.
The mayor and health officer were dismissed from the suit, and the
city remained the sole defendant.
The second assignment is that the court should have sustained de-
fendant's special exception to the petition, upon the ground that the
city was not liable for the acts of its co-defendants, the mayor and
health officer, said acts not being acts of the city; there being no al-
legation that such acts were authorized by the city council. The al-
legation was that the city, by and through its mayor and health
officer, committed the acts complained of. It is probable that this
was sufficient allegation that the city caused the acts to be done.
We deem it more advisable to pass upon the liability of the city in
the light of the evidence.
The acts detailed above, which are as the jury must have found
the facts to be, constituted an unwarrantable trespass, for which
the mayor and health officer were probably liable. A fact that is
essential to the city's liability in cases of this kind is wanting, viz.
the fact that the city was, or has made itself, a party to the trespass.
358
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RELIEF AGAINST ADMINISTRATIVE ACTION.
There is absolutely no evidence from which it can be found that the
city directed, or has ratified, the proceeding. A city is not liable
for acts of its health officers, or for malfeasances or misfeasances,
in the line of their public duties. Shear. & R. Neg. § 266; Bates v.
City of Houston, 14 Tex. Civ. App. 287, 37 S. W. 383, where the
subject is discussed with ample citation of authorities; Gilboy v.
City of Detroit, 115 Mich. 121, 73 N. W. 128. The last case goes
so far as to hold that the city would, in no event, be liable for such
acts. We are of opinion that at least, without some testimony con-
necting the corporation with the transaction complained of, either by
showing its previous direction, or participation therein, or ratifica-
tion, there is no basis for any claim of liability against it. In the
cases of City of San Antonio v. Mackey, 14 Tex. Civ. App. 210, 36
S. W. 760, and City of Dallas v. Allen (Tex. Civ. App.) 40 S. W.
324, decided by this court, the liability of the city existed by reason
of the direction or participation of the cities themselves.
The ground of liability upon which appellant chiefly relies is that
the act complained of amounted to an appropriation of property for
public uses, and that the city is bound to compensate plaintiff by force
of the constitutional guaranty. We are of opinion that a city could
not, under the guise of exercising a strictly governmental power,
evade this constitutional provision. But it is clear that the act must
be the act of the city in such a case. A city cannot be held liable
for property taken or appropriated by a trespass with which it has
no connection at all. The act complained of here was done by the
inayor and health officer, and the city is not shown to have directed it,
nor adopted it as its own. Dooley v. City of Kansas, 82 Mo. 444,
52 Am. Rep. 380. We conclude that the fifth assignment was well
taken, viz. error in refusing to charge the jury that the city was
not liable for any wrong or trespass committed by its mayor, city
physician, or police officers, and therefore to return 'a verdict for de-
fendant.
Reversed and remanded.
NEW YORK CITY CHARTER (LAWS 1901, c. 466) § 1196.
No member, officer or agents of said department of health, and no
person or persons other than the department of health or the city it-
self shall be sued or held to liability for any act done or omitted by
either person aforesaid, in good faith, and with ordinary discretion,
on behalf or under said department, or pursuant to its regulations, or-
dinances or health laws. And any person whose property may have
been unjustly or illegally destroyed or injured, pursuant to any order,
regulation or ordinance, or action of said department of health or its
officers, for which no personal liability may exist as aforesaid, may
obtain a proper action against the city for the recovery of the proper
Ch.7
359
ACTIONS TO RECOVER DAMAGES OR MONEY.
compensation or damage. Every such suit must be brought within
six months after the case of action arose, and the recovery shall be
limited to the damages suffered.
SECTION 40.-SAME_ON IMPLIED CONTRACT
!
LINCOLN V. CITY OF WORCESTER.
(Supreme Judicial Court of Massachusetts, 1851. 8 Cush. 55.)
SHAW, C. J.56 This is an action for money had and received, to
recover back money paid by the plaintiff to the tax collector, on the
ground that the city, by their collector and treasurer, have received a
sum of money which they have no just right to retain. The ground
upon which this claim is made is that the assessors were chargeable
with various mistakes and irregularities, amounting to violations of
law, in making their assessment on his property, by misdescription,
by classing together lots and parcels of land which ought to have
been taxed separately, and by separating into different parcels estates
which should have been combined into one parcel and taxed together;
also that, in regard to certain personal property, the plaintiff has been
taxed for shares for which he was not legally taxable.
The first and great question to be considered, before we can begin
to inquire into these irregularities, is whether assumpsit for money
had and received will lie against the city, provided such irregularities
are shown, and if the assessors acted contrary to the directions of law,
in the details of their proceedings in the assessment of taxes. There
is another mode of proceeding provided by law (by application for
abatement and by appeal), well adapted to correct all errors and mis-
takes, to relieve the party taxed in regard to all those particulars in
which the irregular proceeding can act injuriously upon him, and to
confirm and hold good that which upon revision appears regular and
conformable to law. When assumpsit lies to recover back money
paid, it proceeds on the ground that the tax is void, that the plaintiff
has paid it upon compulsion, and that the city, into whose treasury it
has passed, in equity and good conscience cannot retain it. It follows:
that if the whole proceeding is void, and the plaintiff can recover his
money back on that ground, it being too late to assess the taxes of
a past year again, the plaintiff will avoid paying those sums, which
it is conceded were well assessed, and which he is bound equitably,
as well as legally, to pay.
The question then may be asked, why has the action for money
had and received been sustained in any case? To this question it may
66 Only a portion of the opinion of Shaw, C. J., is printed.
360
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
be proper to offer an answer, and attempt to point out the distinction
upon which the cases rest.
We are inclined to think that the maintenance of an action to re-
cover back money paid for a tax (except perhaps in case of a parish
tax, in favor of a person of another denomination, under the provi-
sions of the Constitution of Massachusetts-Murray v. First Parish
in Gloucester, 2 Dane, Abr. 330, and other cases there cited), is of
comparatively recent origin.
The common course was, it is believed, to bring trespass against the
assessors, in all cases where the plaintiff intended to hold that he was
not liable at all, and that the tax was wholly void. It was not brought
against the collector, because he was justified by his warrant from a
tribunal of competent jurisdiction; but against the assessors. It pro-
ceeded on the ground that as in trespass all are principals, including
those who command an illegal act to be done, and as the assessors had
issued a warrant to a subordinate executive officer commanding him
to levy a tax upon the plaintiff, in a case where they had no authority,
and to take his property or person in case of nonpayment, the service
of such a warrant was an illegal act, done by their command, and was
in theory of law a trespass, for which an action would lie.
In the case of Stetson v. Kempton, 13 Mass. 272, 17 Am. Dec. 145,
decided in 1816, it was held that trespass against the assessors would
lie, although the sum assessed on the plaintiff was laid and assessed by
a vote of the town, to raise inoney for the defense of the town against
a public enemy, such being a purpose for which the town, as a corpo-
ration, had no authority to raise money by taxation. The objection
was there taken, and the force of it was to a certain extent admitted ;
but it was held not to be a good defense, because, as the court said,
“if the assessors are not liable to an action for causing an arrest, or
the seizure of property, for the nonpayment of an illegal tax, it is
difficult to find any remedy for an injured citizen in cases of this
nature.” They add, hypothetically, that "if an action would lie against
the town, it could only be for the nioney actually received into the
treasury.” That was a case, it will be observed, in which the plain-
tiff's property had been actually taken on a warrant of distress.
Here, perhaps, is the first intimation that an action may be main-
tained against the town, and of the principle on which it can be main-
tained. It is that money has been actually brought into their treasury
by their unauthorized, and of course illegal, act, which in equity and
good conscience they cannot retain; and this, not for the damages
caused by the seizure and sacrifice of property distrained, and not for
the expenses incurred, but simply for the money, which they have
actually received without right. Such a remedy, if it exist at all, can
upon principle apply only to a case where a town or city levy money
for their own use without authority, and not where they or their offi-
cers assess and collect money for the state, county, or school district.
In 1824, an act was passed (St. 1823, c. 138, § 5) having an impor-
Ch.)
361
ACTIONS TO RECOVER DAMAGES OR MONEY.
tant bearing on this subject. It provides that the assessors of cities,
towns, districts, parishes, or religious societies shall not be made re-
sponsible for the assessment of any tax, when thereto required by the
constituted authorities thereof; but the liability, if any, shall rest sole-
ly with said city, etc., and the assessors shall be responsible only for
their own integrity and fidelity. This provision was extended to as-
sessments on school districts by St. 1833, c. 166, and was re-enacted
in Rev. St. c. 9, § 44.
The first case, we believe, in which an action for money had and re-
ceived, to recover back a tax illegally assessed, was maintained, was
that of Sunner v. First Parish in Dorchester, 4 Pick. 361. That was
an action to recover back a parish tax, brought by one who was not a
member, and not liable to taxation, so that the tax was wholly unu-
thorized as against him, and void. The court refer to the statute of
1823, taking away the remedy against assessors, so that, if this action
would not lie, the party illegally taxed would be without remedy. The
court further added : “Upon common principles, the corporation har-
ing received the money of the plaintiff, to which they have no right,
and placed it in their treasury, must be liable to refund it in this ac-
tion."
This was probably the basis upon which many actions have been
since brought to recover back money, where the authority on which it
is levied is wholly void.
But it is held that this rule cannot apply to voluntary payments.
but only in cases where a party has been compelled to pay, by that
species of compulsion which the law considers duress. The princi-
ple is fully stated and explained in former cases, and is this:
That a
warrant of distress is in the nature of an execution against a person,
where there has been no judginent, and no opportunity to plead or
answer, and therefore, if he refuses to pay, and payment is insisted
upon, and that on pain of immediate arrest or seizure of goods, the
payment cannot be deemed voluntary; and if he is not liable to tax-
ation, such a menace is duress.57 If, therefore, he pays, with or witli-
out protest, to avoid such duress, he may recover the money back, if
he is not liable. Preston v. Boston, 12 Pick. ; Boston & Sandwich
Glass Co. v. Boston, 4 Metc. 181. But these cases go on the assump-
tion that the tax was wholly unauthorized and the assessment, there-
fore, not irregular only, but void.
One case has been cited, which is supposed to have a contrary bear-
ing, and to hold that part of the tax assessed on a party, for which he
is not liable, may be recovered back of the town. Torrey v. Millbury,
21 Pick. 64. Perhaps in this case the point was not so much consid-
ered as it would have been but for the express admission, by the coun-
sel for the defendants, that the plaintiff was entitled to recover back
his proportion of $100, which the town had no authority to levy, and
57 See Rev. Laws Mass. C. 13, S 86, giving to a protest the same effect as to
duress.
362
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
for which, therefore, he was not liable to be assessed; and it was this
proportion for which in fact he had judgment. Perhaps, were such a
case again under consideration, it might require a careful revision; but
the case was decided upon the ground that the vote for raising the $100
was unauthorized, and without warrant of law, and that the tax there-
fore was wholly void. We are not aware that any decided case has
given sanction to the principle that assumpsit against the town or city
will lie to recover back money on the ground of any irregularity, error
or mistake, in fact or in law, in the mode of making the assessment.
On the contrary, we think it is now definitely settled, by a series of de-
cisions, that in such case the party's only remedy is by application to
the assessors for abatement. Rev. St. c. 7, § 37. If the party obtain
no satisfactory relief there, he may complain to the county commis-
sioners for a revision. Section 39. And it has recently been decided
that if there be any error or mistake, in matter of law, in the proceed-
ings of the commissioners, a writ of certiorari from this court will lie
to correct them. Newburyport v. County Commissioners, 12 Metc.
211.
Here is an easy, direct, simple and practical remedy given by law,
adequate and properly adapted to the case, to be pursued promptly,
under proper limitations as to time and course of proceeding, before
tribunals specially constituted, and furnished with all the means of
affording prompt and efficient relief against all errors, of fact or law,
by which a party can be injured by wrong taxation.
*
* 58
1
58 See Swift v. Poughkeepsie, 37 N. Y. 511 (1868); Newman v. Supervisor's
of Livingston Co., 45 N. Y. 676 (1871); Board of Supervisors of Stephenson
Co. v. Manny, 56 Ill. 160 (1870); Spring v. Hyde Park, 137 Mass. 554, 50
Am. Rep. 334 (1881).
See Falls v. City of Cairo, 58 Ill. 403, 406 (1871): "The precept, which was
in the hands of the officer at the time these assessments were paid, did not
authorize him to levy upon the goods and chattels of the appellant, but
directed him merely to make sale of the lots to satisfy the assessments.
In Bradford v. City of Chicago, 25 Ill. 411, it was held that the payment
of an assessment, made to a collector of taxes while having in his hands
a warrant to levy and collect the amount of the assessment of the goods
and chattels of the owner, might be considered compulsory, and made un-
der such circumstances as would authorize the party paying the money
to recover back the same, if the assessment was illegally made. But it
was decided in Stover v. Mitchell, 45 Ill. 213, that a levy of an execution
upon one's land did not make a case of such duress or compulsion that a
payment made to prevent the sale of the land under the execution could
be recovered back as a compulsory payment. It was held to be a voluntary
payment, and not one made under duress; and it is there said: 'It is
insisted that the levy of the execution on Stover's land was the exercise of
such compulsion as to interfere with Stover's freedom of action. No case
is cited going to this extent, and we venture to say none can be found. In
order to render such a payment compulsory, such a pressure must be brought
to bear upon the person paying as to interfere in some way with the free
enjoyment of his rights of person or property'-citing Bradford v. City
of Chicago, supra, and Elston v. City of Chicago, 40 Ill. 514, 89 Am. Dec.
361. There was here no interference with the plaintiff's free enjoyment
of his property, and there would not have been, by making sale of it under
the precept. Such sale would not have disturbed his possession of the
property. He would then have had two years to redeem from the sale,
Ch.7)
363
ACTIONS TO RECOVER DAMAGES OR MONEY.
SECTION 41.-ACTION AGAINST STATE OR GOVERN-
MENT
ACT ILL. MARCH 23, 1819.
(Laws Ill. 1819, p. 184.)
An act directing the mode of bringing suits, by and against the state,
counties, townships, and other corporate bodies and for other
purposes.
Section 1. It shall and may be lawful for the Auditor of Public
Accounts for the state of Illinois to sue for any demand which the peo-
ple of the state may have a right to claim; and to be sued for any de-
mand against the people of the state; and to sue and be sued, to plead
and be impleaded, to answer and be answered, to defend and be de-
fended, in any court of record, or other place where justice shall be
judicially administered, in the name of the Auditor of Public Accounts,
for the people of the state of Illinois.
Sec. 5. When judgment shall be rendered against the Auditor of
Public Accounts for the state of Illinois, [that] it shall be his duty, by
his warrant, to draw upon the State Treasurer for the amount of such
judgment, and costs, to the time of the rendition thereof, and for no
more. And it shall be the duty of the Treasurer to pay the same out
*
*
and if, at the end of that time, the purchaser had obtained his tax deed,
and brought his action of ejectment for the recovery of the possession, the
illegality of the assessments could have been shown in defense, and the
recovery of possession defeated; or, had the plaintiff desired to remove
any cloud which might be brought upon his title by such a sale, he could
have had his remedy for that purpose. It is very unlike the case of the
payment of money, made to avoid the seizure of goods or to gain the pos-
session of them, where there may be a pressing necessity for their im-
mediate use, and, being of a movable and perishable character, any legal
remedy might be inadequate for full protection. The reasons upon which
it is held that when a party is compelled, by duresss of his person or goods,
to pay money for which he is not liable, the payment is not voluntary,
but compulsory, and that he may rescue himself from such duress by pay.
ment of the money, and afterwards, on proof of the fact, recover it back,
do not apply in the case of real estate threatened with such action, as in
the present case. And we think the payment of these assessments was
not made under such circumstances of constraint and compulsion as to
except it from the operation of the legal principle that if a party, with
full knowledge of all the facts of the case, voluntarily pays money in sat-
isfaction or discharge of a demand unjustly made on him, he cannot after-
wards recover back the money."
Accord: Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512 (1876); Lan-
born v. County Commissioners, 97 U. S. 181, 186, 24 L. Ed. 926 (1877).
See Ætna Insurance Co. v. Mayor, etc., of New York, 153 N. Y. 331,
340, 47 N. E. 593, 594 (1897): “We are also of the opinion that the pay-
ment of the taxes for 1887 and 1888, under the circumstances disclosed by
the evidence, was not voluntary, and hence the amount thereof may be
recovered in this action. At the time these payments were made, sec-
tion 314 of chapter 409 of the Laws of 1882 was in force. That section
provides that a tax upon the shares of a bank organized under the laws
364
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
of any monies in the treasury not otherwise appropriated.
Provided, that if the Auditor, commissioners, or trustees, as aforesaid,
fail or refuse to give such warrant, as aforesaid, upon request, execu-
tion may issue against either of them, for the amount of such judg-
ment, in his or their natural and private capacity, and be collected in
the same manner, except that no replevy shall be allowed upon such
execution, as though it had been recovered against him or them in his
or their natural and private capacity."
59
ACT ILL. JAN. 3, 1829.
(Rev. Laws Ill. 1832–33, p. 593.)
An act directing the inode of bringing suits, by or against the state.
Section 1. It shall and may be lawful for the Auditor of Public Ac-
counts of the state of Illinois to sue for any demand which the people
of the state may have a right to claim, and to be sued and to sue, to
plead and to be impleaded, to answer and be answered, to defend and
to be defended, in any court of record, or other place, where justice
shall be judicially administered, in the name of the Auditor of Pub-
of the state, or of the United States, shall be and remain a lien thereon
from the day when the property was assessed, and, if transferred after
that day, the transfer shall be subject to such lien. As this tax became
and remained a lien upon the plaintiff's bank stock, even after a trans-
fer, it deprived it of an essential element of its ownership and of its
right to transfer it. That being the effect of the imposition of the tax,
we think it amounted to such an impounding or duress of the plaintiff's
property as to render the payment so far involuntary as to authorize au
action for the recovery of the money thus wrongfully received by the
defendant. The pla tiff could only establish its right to a full enjoyment .
of its property by proof of the facts which entitled it to an exemption
under the statute of 1886, in an action or proceeding instituted for that
purpose, or by payment of the tax. The defendant having, by its unau-
thorized act, placed the plaintiff in that position, it cannot relieve itself
from a liability to refund the amount it thus wrongfully received by as-
serting that the payment was a voluntary one, or by claiming that the
plaintiff might have pursued some other remedy to relieve its property
from the lien thus established. The payment was necessary to relieve the
plaintiff's property from the lien to which it was made subject by the wrong-
ful acts of the defendant's officers, unless it instituted a proceeding to es-
tablish the invalidity of the tax. The plaintiff, to enforce its rights, elected
to pay the tax and thus relieve' its property from such lien, and then to in-
stitute an action to recover the amount it was obliged to pay, instead of com-
mencing a proceeding to set aside the tax. We think the defendant is not in
a position to complain because the plaintiff elected to pursue the former in-
stead of the latter remedy, and that the payment cannot be held to be so
far voluntary as to deprive the plaintiff of its right to recover the amount of
taxes thus wrongfully levied and received by the defendant."
Accord :. Stephan v. Daniels, 27 Ohio St. 527 (1875).
59 For earlier legislation, see Act Va. 1778 (9 Hening's St. p. 536), and
Commonwealth v. Beaumarchais, 3 Call (Va.) 122–180 (1801); also Act Pa.
March 30, 1811 (Dunlop's Laws 1700–1849, p. 287, c. 207), and Fitter v. Com.,
31 Pa. 406 (1858).
See, also, Blackstone's Commentaries, III, pp. 254–257, as to petition of
right.
Ch.7)
365
ACTIONS TO RECOVER DAMAGES OR MONEY.
i
lic Accounts, for the people of the state of Illinois: Provided, that the
Auditor shall not be liable to be sued in any other county than that in
which the seat of government is situated. And the Attorney General
of this state shall prosecute and defend all suits brought by or against
the Auditor of Public Accounts, as is prescribed by law. From all
judgments, so rendered, appeals may be taken to the Supreme Court,
and it shall be the duty of the Auditor to take such appeal, if in his
opinion justice has not been done in the court where such judgment
has been rendered; nor shall any judgment against the Auditor, in
his representative capacity, bind him personally, or be conclusive upon
the state, until the same shall be examined by the General Assembly.
In cases of appeals by the Auditor, he shall not be required to give
bond, or security, as in other cases.
Sec. 2. When judgment shall be rendered against the Auditor of
Public Accounts for the state of Illinois, it shall be the duty to forward
a copy of such judgment, and proceedings thereon, to the next Gener-
al Assembly, and if approved by the saine, an appropriation shall be
made to satisfy the same, or such part thereof as said general assem-
bly may deem just.
Sec. 3. The act entitled "An act directing the mode of bringing
suits, by and against the state, counties, townships, and other corpo-
rate bodies, and for other purposes," approved March 23, 1819, is
hereby repealed.
This act to be in force from and after the first day of June next.
60
CONST. ILL. 1848, art. 3, § 34.
The General Assembly shall direct by law in what manner suits may
be brought against the state. Ť
CONST. ILL. 1870, art. 4, § 26.
The state of Illinois shall never be made defendant in any court of
law or equity.
ACT ILL. MAY 29, 1877.
(Laws Ill. 1877, p. 64.)
An act to create a Commission of Claims, and to prescribe its powers
and duties. In force July 1, 1877.
Section 1. There shall be, and hereby is created and constituted a
commission to be called the "Commission of Claims," which shall be
composed of one of the judges of the Supreme Court, who shall be
60 This act was repealed by Rev. St. 1845, p. 461, c. 90.
Ť No such law appears to have been enacted.
366
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RELIEF AGAINST ADMINISTRATIVE ACTION.
*
president of said commission, and two judges of the circuit courts of
this state.
Sec. 2. It shall be the duty of said commission to hear and deter-
mine all unadjusted claims of all persons, against the state of Illi-
nois, and said commission shall hear and determine such claims ac-
cording to the principles of equity and justice, except as otherwise
.provided in the laws of this state, and in case said commission shall
allow any such claim, they shall make and award in favor of the claim-
ant, finding the amount due to such claimant, and naming the claim-
ant, which said award shall be filed and recorded in the office of the
Audítor of Public Accounts, in a book to be kept by him for that
purpose.
Sec. 5. The Auditor shall, in his biennial report to the Governor,
include a detailed statement of all such awards, and said statement
shall be laid before the two houses of the General Assembly at its
session held next after the filing of said awards.
*
ACT ILL. MAY 16, 1903.
(Laws 1903, p. 140.)
An act to create the Court of Claims and to prescribe its powers and
duties.
**
*
*
*
Sec. 2. The Court of Claims shall consist of three persons, not more
than two of whom shall belong to the same political party, learned in
the law and experienced in its practice, appointed by the Governor,
by and with the advice and consent of the Senate, who shall hold their
office for the term of four years, from the time of their appointment
and until their successors or successor of either of them, shall be ap-
*
pointed. *
Sec. 3. The Court of Claims shall have power to make such rules,
not inconsistent with or contrary to law, for the government of pro-
ceedings before it as it may deem proper, and shall have the same pow-
er to enforce such rules, and to preserve order and decorum in its
presence, as is vested by common law or statute of this state in any
court of general jurisdiction. And it shall be the duty of said court
to hear and determine the following matters:
First-All unadjusted claims founded upon any law of the state or
upon any contract, express or implied, with the government of the
state, and all claims which may be referred to it by either house of the
General Assembly.
Second-All claims against the state for the taking or damaging of
private property by the state for public purposes in the construction,
or for the use of any state institution, river, canal, or other public im-
provement, which have not been already barred by any statute or law
of limitations, or heretofore heard and determined by said commission.
Ch.7)
367
ACTIONS TO RECOVER DAMAGES OR MONEY.
Third-All unadjusted and controverted claims against the board of
trustees, or board of directors of any of the public educational, char-
itable, penal or reformatory institutions of the state, canal commis-
sioners, commissioners for the construction of the state capitol build-
ing, state board of education, the military power of the state when
called into action for the preservation of the public peace or order, or
for instruction in camp, arising out of any contract expressed or im-
plied, or in tort, or for any damages, whether liquidated or unliqui-
dated, or any other claim or demand whatsoever.
Fourth-All other unadjusted claims of whatsoever nature or char-
acter against the state of Illinois,
Fifth-All set-offs, counterclaims, claims for damages, whether liq-
uidated or unliquidated, or other demands whatsoever on the part of
the state of Illinois, or any board of trustees, directors, or commis-
sioners, or military authority against whom any such claim shall have
been presented to such court. And such court shall hear such claims
according to its rules and established practice, and determine the same
according to the principles of equity and justice, except as otherwise
provided in the laws of this state, and shall file with the records of
each claim determined, a brief written statement of the reason of the
determination, and in case such court shall allow all or any part of
such claim, they shall make an award in favor of the claimant, finding
the amount due to each claimant, which said award, shall be filed and
recorded in the office of the Auditor of Public Accounts in a book to
be kept by him for that purpose.
Sec. 8. The Auditor shall, in his biennial report to the Governor,
include a detailed statement of all such awards, and said statement
shall be laid before the two houses of the General Assembly at its
session held next after the filing of such award.
Sec. 11. An act to create a commission of claims and to prescribe
its powers and duties, approved May 29, 1877, in force July 1, 1877,
as amended by act of June 3, 1889, in force July 1, 1889, is hereby
repealed.
*
*
*
61
UNITED STATES REVISED STATUTES.
Sec. 1059. [Act Feb. 24, 1855.] The Court of Claims shall have
jurisdiction to hear and determine the following matters:
First. All claims founded upon any law of Congress, or upon any
regulation of an Executive Department, or upon any contract, ex-
pressed or implied, with the Government of the United States, and all
claims which may be referred to it by either House of Congress.
SU, S. Comp. St. 1901, p. 734.
81 For New York, see Laws 1870, c. 321; Laws 1876, c. 444; Laws 1883, c.
205; Laws 1897, c. 36. For Massachusetts, see Rev. Laws, C. 201.
368
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RELIEF AGAINST ADMINISTRATIVE ACTION.
Sec. 1089. In all cases of final judgments by the Court of Claims,
or, on appeal, by the Supreme Court, where the same are affirmed
in favor of the claimant, the sum due thereby shall be paid out of any
general appropriation made by law for the payment and satisfaction
of private claims, on presentation to the Secretary of the Treasury
of a copy of said judgment, certified by the clerk of the Court of
Claims, and signed by the chief justice, or, in his absence, by the pre-
siding judge of said court. [U. S. Comp. St. 1901, p. 745.] 62
LANGFORD v. UNITED STATES.
(Supreme Court of United States, 1879. 101 U. S. 341, 25 L. Ed. 1010.)
Appeal from the Court of Claims.
Mr. Justice MILLER delivered the opinion of the court.
This suit was brought by the plaintiff against the United States
to recover for the use and occupation of certain lands and buildings.
The judgment of the Court of Claims was rendered against him, and
he appealed here.
The first question arising in this case concerns the jurisdiction of
the Court of Claims, upon the suggestion of the Attorney General
that the claim is not founded on contract, either express or implied.
That court could have no cognizance of the case on any other
ground, according to the express language of the statute defining
its jurisdiction. Rev. St. § 1059 (U. S. Comp. St. 1901, p. 434).
The findings of the court leave no doubt that the Indian agents
acting for the United States, and without the consent of the Ameri-
can Board of Commissioners for Foreign Missions, took possession
of the buildings which that board had erected upon the lands, and
have since retained them by force and against its will or that of
Langford, who claims title under it. The United States always as-
serted that their possession was by virtue of their own title, which
was hostile to that of the claimant. The military of the United
States was at one time ordered to protect by force the occupation of
the agents.
Conceding that the title, or even the right to the possession of the
premises, was in claimant, it would seem that the facts above stated
62 Act March 2, 1987, c. 359, 24 Stat. 505 (U. S. Comp. St. 1901, p. 752),
known as the Tucker act: The provisions of this act are set forth in U. S. v.
Jones, 131 U. S. 1, 9 Sup. Ct. 669, 33 L. Ed. 90 (1889), post, p. 382.
See, also, Act May 7, 1822, c. 96, § 6, 3 Stat. p. 692: "It shall be lawful
for the legal representative of any former proprietor of the land directed
to be disposed of by this act, or persons lawfully claiming title under them,
and they are hereby permitted and authorized, at any time within one year
from the passing of this act, to institute a bill in equity in the nature of a
petition of right against the United States, in the Circuit Court of the United
States for the District of Columbia, in which they may set forth the grounds
of their claim to the land in question." See 13 Am. Jurist, p. 34.
Ch.7)
369
ACTIONS TO RECOVER DAMAGES OR MONEY.
show that the act of the United States in taking and holding that
possession was an unequivocal tort, if the government can be capable
of committing one, and that if the case were between individuals
every implication of a contract would be repelled.
Counsel for claimant, admitting this to be true, makes a very in-
genious argument to prove that the government, in taking and using
the property of an individual against his consent, and by force, can-
not be guilty of a tort, because the nature of the relation of the gov-
ernment to its citizens, and the provisions of the Constitution, create
an implied obligation to pay for property, or for the use of property,
so taken. The argument rests on two distinct propositions: (1)
That the maxim of English constitutional law, that the king can do no
wrong, is one which the courts must apply to the government of
the United States, and that therefore there can be no tort committed
by the government. (2) That by virtue of the constitutional provi-
sion that private property shall not be taken for public use, without
just compensation, there arises in all cases where such property is
so taken an implied obligation to pay for it.
It is not easy to see how the first proposition can have any place
in our system of government.
We have no king to whom it can be applied. The President, in
the exercise of the executive functions, bears a nearer resemblance to
the limited monarch of the English government than any other
branch of our government, and is the only individual to whom it
could possibly have any relation. It cannot apply to him, because
the Constitution admits that he may do wrong, and has provided,
by the proceeding of impeachment, for his trial for wrong-doing,
and his removal from office if found guilty. None of the eminent
counsel who defended President Johnson on his impeachment trial
asserted that by law he was incapable of doing wrong, or that, if
done, it could not, as in the case of the king, be imputed to him, but
must be laid to the charge of the ministers who advised him.
It is to be observed that the English maxiin does not declare that
the government, or those who administer it, can do no wrong; for
it is a part of the principle itself that wrong may be done by the
governing power, for which the ministry, for the time being, is held
responsible; and the ministers personally, like our President, may be
impeached, or, if the wrong amounts to a crime, they may be indict-
ed and tried at law for the offense.
We do not understand that either in reference to the government
of the United States, or of the several states, or of any of their of-
ficers, the English maxim has an existence in this country.
The other point is one which requires more delicate handling.
We are not prepared to deny that when the government of the
United States, by such formal proceedings as are necessary to bind
it, takes for public use, as for an arsenal, custom house, or fort,
FR.ADM.LAW--24
370
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
land to which it asserts no claim of title, but admits the ownership
to be private or individual, there arises an implied obligation to
pay the owner its just value.
It is to be regretted that Congress has made no provision by any
general law for ascertaining and paying this just compensation.
And we are not called on to decide that when the government, act-
ing by the forms which are sufficient to bind it, recognizes the fact
that it is taking private property for public use, the compensation
may not be recovered in the Court of Claims. On this point we de-
cide nothing.
What is pertinent to the present case is that, conceding that prin-
ciple, it does not confer on that court the authority to decide that
the United States, in asserting the right to use its own property, is
using that of an individual, and in taking possession of such prop-
erty under claim of title, and retaining it by force against an oppos-
ing claimant, has come under an implied contract to pay him for
the use of the property. In the first case, the government admits the
title of the individual and his right to compensation. This right to
compensation follows from the two propositions, that it was pri-
vate property and was taken for public use, neither of which is dis-
puted.
It is a very different matter where the government claims that it
is dealing with its own, and recognizes no title superior to its own.
In such case the government, or the officers who seize such property,
are guilty of a tort, if it be in fact private property. No implied
contract to pay can arise any more than in the case of such a trans-
action between individuals. It is conceded that no contract for use
and occupation would, in that case, be implied.
Congress, in establishing a court in which the United States may
primarily be sued as defendants, proceeded slowly and with great
caution. As at first organized, the Court of Claims was merely an
auditing board, authorized to pass upon claims submitted to it, and
report to the Secretary of the Treasury. He submitted to Congress
such confirmed claims as he approved, with an estimate for their in-
sertion in the proper appropriation bill. Such as he disapproved
demanded no further action.
It was by reason of that feature of the law that this court refused
to exercise the appellate jurisdiction over awards of that court
which the act of Congress attempted to confer, because the court
was of opinion that the so-called Court of Claims was not, in the
constitutional sense, a court which could render valid judgments,
and because there could be no appeal from the Supreme Court to
the Secretary of the Treasury. Gordon v. United States, 2 Wall.
561, 17 L. Ed. 921. An act of Congress removing this objectionable
feature having passed the year after that decision, the appellate power
of this court has been exercised ever since. The jurisdiction of that
court has received frequent additions by the reference of cases to it
1
Ch.7)
371
ACTIONS TO RECOVER DAMAGES OR MONEY.
under special statutes, and by other changes in the general law;
but the principle originally adopted, of limiting its general jurisdic-
tion to cases of contract, remains. There can be no reasonable
doubt that this limitation to cases of contract, express or implied,
was established in reference to the distinction between actions arising
out of contracts, as distinguished from those founded on torts, which
is inherent in the essential nature of judicial remedies under all sys-
tems, and especially under the system of the common law.
The reason for this restriction is very obvious on a moment's re-
flection. While Congress might be willing to subject the govern-
ment to the judicial enforcement of valid contracts, which could only
be valid as against the United States when made by some officer of
the government acting under lawful authority, with power vested in
him to make such contracts, or to do acts which implied them, the
very essence of a tort is that it is an unlawful act, done in violation
of the legal rights of some one. For such acts, however high the
position of the officer or agent of the government who did or com-
manded them, Congress did not intend to subject the government to
the results of a suit in that court. This policy is founded in wisdom,
and is clearly expressed in the act defining the jurisdiction of the
court; and it would ill become us to fritter away the distinction
between actions ex delicto and actions ex contractu, which is well
understood in our system of jurisprudence, and thereby subject the
government to payment of damages for all the wrongs committed
by its officers or agents, under a mistaken zeal, or actuated by less
worthy motives.
The question is not a new one in this court.
In Nicholl v. United States, y Wall. 122, 19 L. Ed. 125, where a
suit was brought in the Court of Claims to recover back money ex-
acted of an importer in excess of the duties allowed by law, the
court held that no contract to refund was implied, because the
money, though paid under protest, was paid voluntarily, and for this
reason, among others, that court had no jurisdiction.
In Gibbons v. United States, 8 Wall. 269, 19 L. Ed. 453, an army
contractor, who had agreed to furnish two hundred thousand bushels
of oats at a fixed price, liad, as this court held, after delivering part
of the amount, been legally released from the obligation to deliver
the balance. He was, however, carried before the military authority
in a state of fear and trepidation and to save himself further trouble
agreed to and did deliver the remainder of the oats. He sued in the
Court of Claims for the difference between the contract price and
the market price of the oats at the time of the delivery. One ground
of his claim was that he acted under duress and the constraint of
fear, and that his agreement to deliver at the contract price was void.
This court said, in answer to this argument, that “it is not to be dis-
guised that this case is an attempt, under the assumption of an im-
plied contract, to make the government responsible for the unau-
372
RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2
*
*
*
do wrong it follows as a necessary consequence that the king cannot au-
thorized acts of its officers, those acts being in themselves torts.
The language of the statutes which confer jurisdiction
upon the Court of Claims excludes, by the strongest implication,
demands against the government founded on torts.
The general
principle which we have already stated as applicable to all govern-
ments, forbids, on a policy imposed by necessity, that they should
hold themselves liable for unauthorized wrongs inflicted by their
officers on the citizen, though occurring while engaged in the dis-
charge of official duties.
These reflections admonish us to
be cautious that we do not permit the decision of this court to be-
come authority for righting in the Court of Claims all wrongs done
to individuals by the officers of the general government, though they
have been committed while serving the government and in the belief
that it was for its interest. In such cases, where it is proper for
the nation to furnish a remedy, Congress has wisely reserved the
matter for its own determination."
With the reaffirmation of this doctrine, which excludes the pres-
ent case from the jurisdiction of that court, its judgment dismissing
the petition of plaintiff is affirmed.63
UNITED STATES v. GREAT FALLS MFG. CO.
(Supreme Court of United States, 1884. 112 U. S. 645, 5 Sup. Ct. 306, 28
L. Ed. 846.)
Mr. Justice HARLAN delivered the opinion of the court.
From the report and documents transınitted to Congress by Presi-
dent Fillmore it appears that, in the judgment of the engineer de-
partment, the best mode of supplying the cities of Washington and
Georgetown with wholesome water was by an aqueduct from the
63 The sovereign is not liable for the tort of his agents, even where consent
is given to be sued on any cause of action. Rexford v. State, 105 N. Y. 229,
11 N. E. 514 (1887); Belt v. State of Illinois, 1 Ill. Court of Claims Rep.
266 (1902). But see Ballou v. State, 111 N. Y. 496, 18 N. E. 627 (1888),
case of a nuisance caused by property of state.
“A petition of right, unlike a petition addressed to the grace and favor of
the sovereign, is founded on the violation of some right in respect of which,
but for the immunity from all process with which the law surrounds the per-
son of the sovereign, a suit at law or equity could be maintained. The peti-
tion must therefore show on the face of it some ground of complaint which,
but for the inability of the subject to sue the sovereign, might be made the
subject of a judicial proceeding. Now, apart altogether from the question
of procedure, a petition of right in respect of a wrong in the legal sense of
the term shows no right to legal redress against the sovereign. For the
maxim that the king can do no wrong applies to personal as well as to politi-
cal wrongs, and not only to wrongs done personally by the sovereign, if such
a thing can be supposed to be possible, but to injuries done to a subject by
the authority of the sovereign. For from the maxim that the king cannot
64
*
*
thorize wrong." Feather v. Reg., 6 B. & S. 257, 295 (1865).
64 The statement of facts and a portion of the opinion are omitted.
Ch.7)
373
ACTIONS TO RECOVER DAMAGES OR MONEY.
Great Falls of the Potomac; also, that such a plan necessarily in-
volved the construction of a dam at that point in the river. Ex. Doc.
(Senate) No. 48, pp. 2, 35, 48, 32d Cong. 2d Sess. By the annual
report, under date of December 4, 1863, of Mr. Usher, Secretary
of the Interior, Congress was informed that "certain parties having
from time to time made claim to heavy damages for the diversion
of the water from the Potomac river," his immediate predecessor,
“with a view to settle and end this clain, entered into an agreement
of arbitration with the claimants.” The parties referred to were the
present claimants, as appears by the agreement of arbitration, by
the official documents submitted to Congress, and by the proceedings
in the courts of Maryland for an assessment of the damages which
the proposed damn should cause to the Great Falls Manufacturing
Company
The Secretary said: "Pursuant to this agreement, the arbitrators
met from time to time, and finally submitted their award, by which
they adjudged in favor of the claimants upon each and all of the
plans and modes submitted to them, being three [four] in number,
for the construction of the dam across the Potomac, and also $12,-
000 for their own fees as arbitrators, and $761.84 for the expenses
of arbitration. The suns being large, I did not 'feel justified in
applying the existing appropriation for the completion of the aque-
duct to the payment thereof, preferring to submit the whole matter
to Congress for its determination. It appears from the report of
the experienced engineer in charge of the work, as must be obvious
to every observer, that an ample supply of water for the use of the
cities of Washington and Georgetown, for many years to come, can
be obtained from the Potomac by the erection of a tight dam, ex-
tending from the Maryland shore to Conn's Island, to a height
which will give a head of six feet in the aqueduct, and yield a daily
supply of 65,000,000 gallons,” etc. After expressing the opinion
that such a dam could not work injury to the proprietors of the wa-
ter rights claimed at the Great Falls, the Secretary recommended
that a reasonable sum be appropriated to pay the expenses of the
arbitration, and that the cost previously estimated of a dam across
the main channel be diminished to that of the proposed dam over
the east channel.
In conformity with that recommendation, Congress, by the act of
July 4, 1864, made the appropriation of $150,000 for the purpose of
constructing the proposed dam of solid masonry, and for paying the
existing liabilities and the expenses connected with the engineering,
superintendence, and repairs of the aqueduct. Immediately there-
after a contract was made for the construction of that dam. In his
next annual report, under date of December 5, 1864, the Secretary in-
formed Congress that the work upon the dam and the aqueduct re-
quired the expenditure of the additional sum of $51,945. For that
amount an appropriation was promptly made. With the Secretary's
374
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
report was transmitted to Congress that of the engineer in charge,
who stated that “the question of land damages and water rights at
the Great Falls still rentains unsettled.” The dam was completed to
its present height in 1867, and is used as an indispensable part of
the system by which the cities of Washington and Georgetown have
been supplied with water. Beyond doubt the land and the water
rights and privileges in question have for nearly 20 years been held
and used by officers and agents of the government, without any com-
pensation whatever having been made therefor to the claimant. By
what authority have they appropriated to public use the property of
the claimant? The answer to this question will determine whether
the present demand of the clainiant arises out of an implied con-
tract, and therefore enforceable by suit against the United States in
the Court of Claims.
It seems clear that these property rights have been held and used
by the agents of the United States, under the sanction of legislative
enactments by Congress; for the appropriation of money specifically
for the construction of the dam from the Maryland shore to Conn's
island was, all the circumstances considered, equivalent to an express
direction by the legislative and executive branches of the govern-
ment to its officers to take this particular property for the public ob-
jects contemplated by the scheme for supplying the capital of the
nation with wholesome water. The making of the improvements
necessarily involved the taking of the property; and if, for the want
of formal proceedings for its condemnation to public use, the claim-
ant was entitled, at the beginning of the work, to have the agents
of the government enjoined from prosecuting it until provision was
made for securing, in some way, payment of the compensation re-
quired by the Constitution—upon which question we express no opin-
ion—there is no sound reason why the claimant might not waive
that right, and, electing to regard the action of the government as a
taking under its sovereign right of eminent domain, demand just
compensation. Kohl v. U. S., 91 U. S. 374, 23 L. Ed. 449. In that
view, we are of opinion that the United States, having by its agents,
proceeding under the authority of an act of Congress, taken the
property of the claimant for public use, are under an obligation, im-
posed by the Constitution, to make compensation. The law will im-
ply a promise to make the required compensation, where property, to
which the government asserts no title, is taken, pursuant to an act
of Congress, as private property to be applied for public uses. Such
an implication being consistent with the constitutional duty of the
government, as well as with common justice, the claimant's cause of
action is one that arises out of implied contract within the meaning of
the statute, which confers jurisdiction upon the Court of Claims of
actions founded “upon any contract, express or implied, with the
government of the United States."
1
Ch.7)
375
ACTIONS TO RECOVER DAMAGES OR MONEY.
This case is materially different from Langford v. U. S., 101
U. S. 341, 25 L. Ed. 1010. That was an action in the Court
of Claims against the United States to recover for the use and oc-
cupation of certain lands and buildings to which the claimant as-
serted title. It there appeared that, throughout the whole period
of such occupation and use, the title of the claimant was disputed by
the government and that possession was taken and held by its agents
in virtue of a title asserted to be in the United States. The juris-
diction of the Court of Claims was attempted to be sustained upon
the ground that the government, in taking and using the property of
an individual, against his consent and by force, could not, under the
relations between it and the citizen, commit a tort, but was under
an implied obligation, created by the Constitution, to pay for the
property, or for the use of the property, so taken. This proposition
was held to be untenable under the facts of that case, .for the reason
that, while individual officers of the government might be guilty of
a tort, if the property so held by them was in fact private property,
yet, if the government never recognized the property as private prop-
erty, taken by its agents for public use, it could not be held liabie
for its value as upon implied contract. In the same case it was said:
"We are not prepared to deny that when the government of the Unit-
ed States, by such formal proceedings as are necessary to bind it,
takes for public use, as for an arsenal, custom house, or fort, land to
which it asserts no title, but admits the ownership to be private or
individual, there arises an implied obligation to pay the owner its
just value. It is to be regretted that Congress has made no provi-
sion by any general law for ascertaining and paying this just com-
pensation. And we are not called on to decide that when the gov-
ernment, acting by the forms which are sufficient to bind it, recog-
nizes the fact that it is taking private property for public use, the
compensation may not be recovered in the court of claims. On this
point we decide nothing."
The question thus reserved from decision is substantially the one
now presented. In the present case there were, it is true, no statu-
tory proceedings for the condemnation of the claimant's property
rights. Such proceedings, as has been stated, were instituted by
the United States in one of the courts of Maryland, in which the
property rights of the claimant were expressly recognized. But they
were abandoned. One reason, perhaps, for such abandonment was
that, in the judgment of the officers of the United States, a fair as-
sessment of damages could not be had in the mode prescribed by the
Maryland statute. Be this as it may, it is clear, from the record, that
the government did not assert title in itself to this property, at the
time it was taken. Having abandoned the proceedings of condemna-
tion, the proper officers of the government, in conformity with the
acts of Congress, constructed the dam from the Maryland shore to
Conn's Island, the doing of which necessarily involved the occupation
376
(Part 2
RELIET AGAINST ADMINISTRATIVE ACTION.
and use of the property, as contemplated in what was called the fourth
plan for bringing water from the Great Falls to Washington and
Georgetown. In such a case, it is difficult to perceive why the legal
obligation of the United States to pay for what was thus taken pur-
suant to an act of Congress, is not quite as strong as it would have
been had formal proceedings for condemnation been resorted to for
that purpose. If the claimant makes no objection to the particular
mode in which the property has been taken, but substantially waives
it, by asserting, as is done in the petition in this case, that the gov-
ernment took the property for the public uses designated, we do not
perceive that the court is under any duty to make the objection in
order to relieve the United States from the obligation to make just
compensation. In reference to the title which the government will
acquire, as the result of this suit, there would seem to be no diffi-
culty. The finding of the court is that the claimant exhibited to the
arbitrators a valid title to the lands in question. It does not appear
that the company has ever parted with that title; and the finding is
that no title except that of the claimant is asserted.
What has been said is sufficient to dispose of the case, and re-
quires an affirmance of the judgment. It is so ordered.65
+
DOOLEY v. UNITED STATES.
(Supreme Court of United States, 1901. 182 U. S. 222, 21 Sup. Ct. 762, 45
L. Ed. 1074.)
Mr. Justice BROWN delivered the opinion of the ,court. 66
1. The jurisdiction of the court in this case is attacked by the
government upon the ground that the Circuit Court, as a court of
claims, cannot take cognizance of actions for the recovery of duties
illegally exacted.
By an act passed March 3, 1887, to provide for the bringing of
suits against the government, known as the Tucker act (24 Stat. 505,
c. 359 [U. S. Comp. St. 1901, p. 752]), the Court of Claims was
vested with jurisdiction over, "first, all claims founded upon the Con-
stitution of the United States or any law of Congress, except for
pensions, or upon any regulation of an executive department, or
upon any contract, express or implied, with the government of the
United States, or for damages, liquidated or unliquidated, in cases not
sounding in tort, in respect of which claims the party would be en-
titled to redress against the United States either in a court of law,
equity, or admiralty, if the United States were suable"; and by sec-
65 See, also, United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L.
Ed. 539 (1903).
88 Only a portion of the opinion of Mr. Justice Brown is printed.
Ch.7)
377
ACTIONS TO RECOVER DAMAGES OR MONEY.
!
tion 2 the District and Circuit Courts were given concurrent.juris-
diction to a certain amount.
The first section evidently contemplates four distinct classes of
cases: (1) Those founded upon the Constitution or any law of
Congress, with an exception of pension cases; (2) cases founded
upon a regulation of an executive department; (3) cases of contract,
express or implied, with the government; (4) actions for damages,
liquidated or unliquidated, in cases not sounding in tort. The words
“not sounding in tort” are in terms referable only to the fourth class
of cases.
The exception to the jurisdiction is based upon two grounds :
First, that the court has no jurisdiction of cases arising under the
revenue laws; and, second, that it has no jurisdiction in actions for
tort.
In support of the first proposition we are cited to the case of Nich-
ols v. United States, y Wall. 122, 19 L. Ed. 125, in which it was
broadly stated that "cases arising under the revenue laws are not
within the jurisdiction of the Court of Claims.” The action in that
case was brought to recover an excess of duties paid upon certain
liquors which had leaked out during the voyage, and, being thus lost,
were never imported in fact into the United States. Plaintiffs paid
the duties, as exacted, but made no protest, and subsequently brought
suit in the Court of Claims for the overpayment. The act in force at
that time gave the Court of Claims power to hear and determine "all
claims founded upon any law of Congress, or upon any regulation of
an executive department, or upon any contract, express or implied,
with the government of the United States." The court held, first,
that the duties could not be recovered because they were not paid un-
der protest, and, second, that Congress did not intend to confer
upon the Court of Claims jurisdiction of cases arising under the
revenue laws, inasmuch as, by the act of February 26, 1845 (5 Stat.
727, c. 22), Congress had given a right of action against the collector
in favor of persons "who have paid, or shall hereafter pay, money, as
and for duties, under protest
in order to obtain goods,
wares, or merchandise imported by him or them, or on his or their
account, which duties are not authorized or payable in part or in
whole by law," provided that protests were duly made in writing.
It was held that this remedy was exclusive, and that Congress, after
having carefully constructed a revenue system, with ample provisions
to redress wrong, did not intend to give to the taxpayer and importer
a different and further remedy.
Subsequent statutes, however, have so far modified that special
remedy that it can no longer be made available, and the broad state-
ment in the Nichols Case, that revenue cases are not within the cog-
nizance of the Court of Claims, if still true, must be accepted with
material qualifications. By the customs administrative act of 1890,
as we have just held in De Lima v. Bidwell, 182 U. S. 1, 21 Sup.
378
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
Ct. 743, 45 L. Ed. 1041, an appeal is given from the decision of the
collector "as to the rate and amount of duties chargeable upon im-
ported merchandise,” to a board of general appraisers, whose decision
shall be final and conclusive "as to the construction of the law and
the facts respecting the classification of such merchandise and the
rate of duty imposed thereon under such classification," unless ap-
plication be made for a review to the Circuit Court of the United
States. This remedy is doubtless exclusive as applied to customs
cases; but, as we then held, it has no application to actions against
the collector for duties exacted upon goods which were not imported
at all. Such cases, although arising under the revenue laws, are not
within the purview of the custoins administrative act; as for such
cases there is still a common-law right of action against the col-
lector, and we think also by application to the Court of Claims.
There would seem to be no doubt about plaintiffs' remedy against
the collector at San Juan.
In the Nichols Case it was held that, as there was a remedy by
action against the collector, expressly provided by statute, that rem-
edy was exclusive. In De Lima v. Bidwell we held that, although no
other remedy was given expressly by statute than that provided by
the customs administrative act, there was still a common-law remedy
against the collector for duties exacted upon goods not imported at
all; but it does not therefore follow that this remedy is exclusive, and
that the importer may not avail himself of his right of action in the
Court of Claims.
But conceding that the Nichols Case does not stand in the way
of a suit in the Court of Claims, the government takes the position that
a suit in the United States to recover back duties illegally exacted by
a collector of customs is really an action "sounding in tort," though
not an action “for damages, liquidated or unliquidated,” within the
fourth class of cases enumerated in the Tucker act.
There are a number of authorities in this court upon that subject
which require examination. The question is whether any claim
sounding in tort can be prosecuted in the Court of Claims, notwith-
standing the words “not sounding in tort,” in the Tucker act, are
apparently limited to claims for damages, liquidated or unliquidated.
The question was first considered in Langford v. United States, 101
U. S. 341, 25 L. Ed. 1010, under the statute above cited, giving the
Court of Claims power to hear and determine "all claims founded up-
on any law of Congress, or upon any regulation of an executive de-
partment, or upon any contract, express or implied, with the govern-
ment of the United States." The suit was brought to recover for
the use and occupation of certain lands and buildings of which pos-
session had been forcibly taken by agents of the government, against
the will of Langford, who claimed title to the lands. It was held
that the act of the United States in taking and holding possession
was an unequivocal tort, and a distinction was drawn between such
Ch.7)
379
ACTIONS TO RECOVER DAMAGES OR MONEY.
a case and one where the government takes for public use lands
to which it asserts no claim of title, but admits the ownership to
be private or individual, in which class there arises an implied ob-
ligation to pay the owner its just value. "It is a very different
matter where the government claims that it is dealing with its
own, and recognizes no title superior to its own. In such case
the government, or the officers who seize such property, are guilty
of a tort, if it be in fact private property.” It was held that the
limitation of the act to cases of contract, express or implied, "was
established in reference to the distinction between actions arising out
of contracts, as distinguished from those founded on torts, which is
inherent in the essential nature of judicial remedies under all sys-
tems, and especially under the system of the common law."
The case was rested largely upon that of Gibbons v. United States,
8 Wall. 269, 19 L. Ed. 453, in which an army contractor who had
agreed to furnish certain oats at a fixed price had, after the delivery
of part of the amount, been released from the obligation to deliver
the balance. He was, however, carried before the military authority,
and, influenced by threats, agreed to deliver, and did deliver, the full
quantity of oats specified in the contract. He brought suit for the
difference between the contract price and the market price of the
oats at the time of delivery. It was said that "if such pressure was
brought to bear upon him as would make the renewal of the contract
void, as being obtained by duress, then there was no contract, and
the proceeding was a tort for which the officer may have been per-
sonally liable," but that it was not within the Court of Claims act.
The act of March 3, 1887 (the Tucker act), was first considered
by this court in United States v. Jones, 131 U. S. 1, 9 Sup. Ct. 669,
33 L. Ed. 90, in which it was held not to confer upon the Court of
Claims jurisdiction in equity to compel the issue and entry of a patent
for public land, following United States v. Alire, 6 Wall. 573, 18 L.
Ed. 947, and Bonner v. United States, 9 Wall. 156, 19 L. Ed. 666.
In delivering the opinion, Mr. Justice Bradley compared the original
act with the Tucker act, and held that there was no such difference
in language as to justify an equitable jurisdiction to compel the is-
sue of a patent.
In Hill v. United States, 149 U. S. 593, 13 Sup. Ct. 1011, 37 L.
Ed. 862, it was held that a claim for damages for the use and oc-
cupation of land under tide water, for the erection and maintenance of
a lighthouse, without the consent of the owner, but not showing that
the United States had acknowledged any right of property in him as
against them, was a case sounding in tort, of which the Circuit Court
had no jurisdiction under the Tucker act. It was said that "the
United States cannot be sued in their own courts without their con-
sent, and have never permitted themselves to be sued in any court
for torts committed in their name by their officers. Nor can the set-
tled distinction, in this respect, between contract and tort, be evaded
380
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
by framing the claim as upon an implied contract." "An action in
the nature of assumpsit for the use and occupation of real estate will
never lie where there has been no relation of contract between the
parties, and where the possession has been acquired and maintained
under a different or adverse title, or where it is tortious and makes
the defendant a trespasser." No distinction was noticed between
the phraseology of the original act and the Tucker act, though it
seems to have been assumed that the case was one for the recovery of
"damages" sounding in tort.
In Schillinger v. United States, 155 U. S. 163, 15 Sup. Ct. 85, 39
L. Ed. 108, it was held that the Court of Claims had no jurisdiction
of an action upon a claim against the government for the wrongful
appropriation of a patent by the United States, against the protest of
the patentee. It was said to be an action for damages sounding in
tort, and therefore not maintainable. “Not only does the petition
count upon a tort, but also the findings show a tort. That is the
essential fact underlying the transaction, and upon which rests every
pretense of a right to recover. There was no suggestion of a waiver
of the tort or a pretense of any implied contract until after the deci-
sion of the Court of Claims that it had no jurisdiction over an action
to recover for the tort."
In the cases under consideration the argument is made that the
money was tortiously exacted; that the alternative of payment to the
collector was a seizure and sale of the merchandise for the nonpay-
ment of duties; and that it mattered not that at common law an
action for money had and received would have lain against the col-
lector to recover them back. But whether the exactions of these
duties were tortious or not, whether it was within the power of the
importer to waive the tort and bring suit in the Court of Claims for
money had and received, as upon an implied contract of the United
States to refund the money in case it was illegally exacted, we think
the case is one within the first class of cases specified in the Tucker
act, of claims founded upon a law of Congress, naniely, a revenue
law, in respect to which class of cases the jurisdiction of the Court
of Claims, under the Tucker act, has been repeatedly sustained.
Thus, in United States v. Kaufman, 96 U. S. 567, 24 L. Ed. 792, a
brewer who had been illegally assessed for a special tax upon his busi-
ness was held entitled to bring suit in the Court of Claims to recover
back the amount, upon the ground that no special remedy had been
provided for the enforcement of the payment, and consequently the
general laws which govern the Court of Claims may be resorted to
for relief, if any can be found applicable to such a case. This is upon
the principle that a liability created by statute without a remedy may
be enforced by a common-law action. The Nicholas Case was distin-
guished upon the ground that the statute there had provided a special
remedy.
}
Ch.)
381
ACTIONS TO RECOVER DAMAGES OR MONEY.
So, too, in United States v. Real Estate Sav. Bank, 104 U. S. 728,
26 L. Ed. 908, the Court of Claims was held to have jurisdiction of a
suit to recover back certain taxes and penalties assessed upon a sav-
ings bank
In Campbell v. United States, 107 U. S. 407, 2 Sup. Ct. 759, 27 L.
Ed. 592, it was held that a party claiming to be entitled to a drawback
of duties upon manufactured articles exported might, when payment
thereof has been refused, maintain a suit in the Court of Claims, be-
cause the facts found raised an implied contract that the United States
would refund to the importer the amount he had paid to the govern-
ment. There was here no question of tort.
In United States v. Great Falls Mfg. Co., 112 U. S. 645, 5 Sup. Ct.
306, 28 L. Ed. 846, it was held, following the observation of Mr.
Justice Miller in Langford v. United States, that where property to
which the United States asserts no title was taken by their officers or
agents, pursuant to an act of Congress, as private property for public
use, there was an implied obligation to compensate the owner, which
might be enforced by suit in the Court of Claims.
So, too, in Hollister v. Benedict & B. Mfg. Co., 113 U. S. 59, 5 Sup.
Ct. 717, 28 L. Ed. 901, it was held that a suit might be maintained in
the Court of Claims to recover for the use of a patented invention, if
the right of the patentee were acknowledged. To the same effect are
United States v. Palmer, 128 U. S. 262, 9 Sup. Ct. 104, 32 L. Ed. 442,
and United States v. Berdan Fire-Arms Mfg. Co., 156 U. S. 552, 15
Sup. Ct. 420, 39 L. Ed. 530.
In Medbury v. United States, 173 U. S. 492, 19 Sup. Ct. 503, 43 L.
Ed. 779, it was held the Court of Claims had jurisdiction of an action
to recover an excess of payment for lands within the limits of a rail-
road grant which grant was, subsequent to the payment, forfeited by
act of Congress for nonconstruction of the road.
In Swift & C. & B. Co. v. United States, 111 U. S. 22, 4 Sup. Ct.
244, 28 L. Ed. 341, the same right was treated as existing in favor of
a party who sued for a commission upon the amount of certain ad-
hesive stamps which he had at one time purchased for his own use from
the Bureau of Internal Revenue. See, also, United States v. Law-
son, 101 U. S. 164, 25 L. Ed. 860; United States v. Mosby, 133 U.
S. 273, 10 Sup. Ct. 327, 33 L Ed. 625.
* 67
87 German Civil Code, § 31: "An association is liable for the damage done
to a third party by an actionable wrong committed by the governing body or
one of its members or by a representative constituted in accordance with its
by-laws within the scope of the functions committed to such body, member or
representative."
Section 89: "The rule of section 31 applies to the Fiskus (state) and to
public corporations, trusts and institutions.”
382
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
CHAPTER VIII
ACTIONS FOR SPECIFIC RELIEF
SECTION 42.-IN GENERAL
UNITED STATES V. JONES.
SAME V. TAUBENHEIMER. SAME V. MONTGOMERY.
(Supreme Court of United States, 1889. 131 U. S. 1, 9 Sup. Ct. 669, 33
L. Ed. 90.)
Appeals from the Circuit Court of the United States for the District
of Oregon.
Three suits by Carrie Jones, Henry Taubenheimer, and James B.
Montgomery, respectively, against the United States, for specific per-
formance. Demurrers to the petitions overruled, and the United States
appeals.
These cases are suits in equity brought against the United States
under the recent act of March 3, 1887 (U. S. Comp. St. 1901, p. 752)
extending the jurisdiction of claims against the government to the
District and Circuit Courts of the United States. They are suits for
specific performance, seeking to compel the United States to issue
and deliver to the plaintiffs respectively patents for timber land, al-
leged to have been taken up and purchased by them under the act for
the sale of timber lands in the states of California, Oregon, etc., passed
June 3, 1878 (20 Stat. 89). The petitions contain averments of per-
formance of the conditions required by said act, the payment of the
price of the lands to the receiver of the land office, the giving of his
certificates and receipts therefor, and the refusal of the government to
issue patents to the petitioners as entitled thereto. They pray in each
case for a decree-First, that the petitioner is owner of the land by
virtue of the purchase; and, second, that the United States issue
and deliver, or cause to be issued and delivered, in accordance with
law, a patent granting and conveying the land purchased. The United
States, by its attorney, demurred to the several petitions. The Circuit
Court overruled the demurſers, and rendered decrees for the plain-
tiffs. From these decrees the present appeals were taken.
BRADLEY, J. The question involved is whether the act of March
3, 1887, which is entitled "An act to provide for the bringing of
suits against the government of the United States” (24 Stat. 505
(U. S. Comp. St. 1901, p. 752]), authorizes suits of the kind like
the present, which are brought, not for the recovery of money,
Ch. 8)
383
ACTIONS FOR SPECIFIC RELIEF.
but for equitable relief by specific performance, to compel the issue
and delivery of a patent. In the case of U. S. V. Alire, 6 Wall.
573, 18 L. Ed. 947, we distinctly held that the acts of 1855 and
1863, which established the Court of Claims, and defined its juris-
diction, did not give it power to entertain any such suits as these;
and that case was followed by Bonner v. U. S., 9 Wall. 156, 19 L.
Ed. 666, and has been approved in subsequent cases.
U. $. V.
Gillis, 95 U. S. 407, 412, 24 L. Ed. 503; U. S. v. Schurz, 102 U.
S. 378, 404, 26 L Ed. 167.
It is argued, however, that the new law has extended the juris-
diction of the Court of Claims and the concurrent jurisdiction of the
Circuit and District Courts, or at least the latter, so as to embrace
every kind of claim, equitable as well as legal, and specific relief,
or a recovery of property, as well as a recovery of money. If such
is the legislative will, of course the courts must conform to it,
although the management and disposal of the public domain, in which
the newly claimed jurisdiction would probably be most frequently
called into exercise, has always been regarded as more appropriately
belonging to the political departinent of the government than to the
courts, and more a matter of administration than judicature. A
careful examination of the statute, and a comparison of its terms with
those of the acts of 1855 and 1863, can alone settle the question.
By the first section of the act of 1855 (10 Stat. 612) it was enacted
that a court should be established, to be called the "Court of Clainis,"
the jurisdiction of which was defined as follows: "The said court
shall hear and determine all claims founded upon any law of Con-
gress, or upon any regulation of an executive department, or upon
any contract, express or implied, with the government of the United
States, which may be suggested to it by a petition filed therein; and
also all claims which may be referred to it by either house of Con-
gress."
The act of March 3, 1863, passed to amend the act of 1855 (12
Stat. 765), added: “That the said court
shall also have
jurisdiction of all set-offs, counterclaims, claims for damages, whether
liquidated or unliquidated, or other demands whatsoever, on the part
of the government against any person making claint against the gov-
ernment in said court." Jurisdiction was subsequently given of claims
for the proceeds of property captured or abandoned during the Re-
bellion, and of claims of payınasters and other disbursing officers
for relief from responsibility on account of capture of government
funds or property in their hands. These latter branches of juris-
diction need not be considered here.
Turning now to the act of March 3, 1887, which re-enacted or re-
vised the previous laws as to the jurisdiction of the Court of Claims,
and conferred concurrent jurisdiction for limited amounts on the
ordinary courts, we find the following language used:
“The Court of Claims shall have jurisdiction to hear and determine
384
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
*
the following matters: First. All claims founded upon the Constitu-
tion of the United States or any law of Congress, except for pensions,
or upon any regulation of an executive department, or upon any con-
tract, expressed or implied, with the government of the United States,
or for damages, liquidated or unliquidated, in cases not sounding in
tort, in respect of which claims the party would be entitled to re-
dress against the United States either in a court of law, equity, or
admiralty, if the United States were suable.
Second. All
set-offs, counterclaims, claims for damages, whether liquidated or
unliquidated, or other demands whatsoever on the part of the govern-
ment of the United States against any claimant against the govern-
ient in said court."
“Sec. 2. That the District Courts of the United States shall have
concurrent jurisdiction with the Court of Claims as to all matters
named in the preceding section where the amount of the claim does
not exceed one thousand dollars, and the Circuit Courts of the United
States shall have such concurrent jurisdiction in all cases where the
amount of such claim exceeds one thousand dollars, and does not
exceed ten thousand dollars."
The jurisdiction here given to the Court of Claims is precisely the
same as that given in the acts of 1855 and 1863, with the addition
that it is extended to "damages
in cases not sounding
in tort" and to claims for which redress may be had “either in a court
of law, equity, or admiralty.” “Damages in cases not sounding in
tort”-that is to say, damages for breach of contract—had already
been held to be recoverable against the government under the former
acts. U. S. v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168;
U. S. v. Manufacturing Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed.
$46; Hollister v. Manufacturing Co., 113 U. S. 59, 67, 5 Sup. Ct.
717, 28 L. Ed. 901. "Claims" redressible "in a court of law, equity,
or admiralty,” may be claims for money only, or they may be claims
for property or specific relief according as the context of the stat-
ute may require or allow.
The claims referred to in the original statute of 1855, as described
in the first section thereof, above quoted, might have included claims
for other things besides money; but various provisions of that act
and of the act of March 3, 1863, were inconsistent with the enforce-
ment of any claims under the law except claims for money. Thus, in
the fifth section of the act of 1863, the right of appeal was limited to
cases in which the amount in controversy exceeded $3,000, and in the
seventh section it was provided that if judgment should be given in
favor of the claimant, the sum due thereby should be paid out of any
general appropriation made by law for the payment of private claims;
and, if a judgment was affirmed on appeal, interest was to be allowed
thereon, etc.
In the case of U. S. v. Alire, 6 Wall. 573, 18 L. Ed. 947, Mr. Jus-
tice Nelson, speaking for the court, said: "It will be seen by the
Ch.8)
385
ACTIONS FOR SPECIFIC RELIEF.
above reference which we have made to the two acts of Congress on
this subject that the only judgments which the Court of Claims are
authorized to render against the government, or over which the Su-
preme Court have any jurisdiction on appeal, or for the payment of
which by the Secretary of the Treasury any provision is made, are
judgments for money found due from the government to the peti-
tioner. And although it is true that the subject-natter over which
jurisdiction is conferred, both in the act of 1855 and of 1863, would
admit of a much more extended cognizance of cases, yet it is quite
clear that the limited power given to render a judgment necessarily
retains the general terms, and confines the subject-matter to cases
in which the petitioner sets up a moneyed demand as due from the
government." The decree of the Court of Clainıs in that case was
that the claimant recover of the government a military land warrant
for 160 acres of land, and that it be made out and delivered to him
by the proper officer. This court said: "We find no provision in any
of the statutes requiring a judgment of this character, whether in this
court or in the Court of Claims, to be obeyed or satisfied.”
The sections of the act of 1863 referred to in this opinion are still
in force, not being repealed by the act of 1887, which only repeals
"all laws and parts of laws inconsistent" therewith. Section 5, re-
lating to appeals, is transferred to section 107 of the Revised Stat-
utes (U. S. Comp. St. 1901, p. 574), giving an appeal to this court
"where the amount in controversy exceeds $3,000”; and section 7,
relating to the mode of paying judgments out of a general appro-
priation, and allowing interest where a judgment is affirmed, is con-
tained in sections 1089, 1090 of the Revised Statutes (U. S. Comp.
St. 1901, p. 1745). These sections are still the law on the subjects to
which they relate, being necessary to the completion of the system,
and not being supplied by any other enactments. Indeed, they are
expressly retained. The fourth section of the act of 1887 declares
that "the jurisdiction of the respective courts of the United States
proceeding under this act, including the right of exception and ap-
peal, shall be governed by the law now in force, in so far as the same
is applicable, and not inconsistent with the provisions of this act”;
and the ninth section declares "that the plaintiff or the United States,
in any suit brought under the provisions of this act, shall have the
same rights of appeal or writ of error as are now reserved in the
statutes of the United States in that behalf made, and upon the con-
ditions and limitations therein contained." These provisions un-
doubtedly include the Court of Claims as well as the District and
Circuit Courts. So, in relation to interest, section 10 declares that
"from the date of such final judgment or decree interest shall be
computed thereon at the rate of four per cent. per annum, until the
time when an appropriation is made for the payment of the judg-
ment or decree.” It seems, therefore, that in the point of provid-
FR. ADM.LAW-23
386
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RELIEF AGAINST ADMINISTRATIVE ACTION.
*
*
ing only for money decrees and money judgments, the law is un-
changed, merely being so extended as to include claims for money
arising out of equitable and inaritime as well as legal demands.
We do not think that it was the intention of Congress to go further
than this. Had it been, some provision would have been made for
carrying into execution decrees for specific performance, or for de-
livering the possession of property recovered in kind. The general
scope and purport of the act are against any further extension than
that here indicated. The expression in the fifth section, referring to
“money or any other thing claimed, or the damages sought to be re-
covered,” on which so much reliance is placed by the appellees, cannot
outweigh the considerations referred to, and operate to introduce
entirely new fields of jurisdiction. It is one of those general expres-
sions which must be restrained by the more special and definite in-
dications of intention furnished by the context.
We cannot yield to the suggestion that any broader jurisdiction
as to subject-matter is given to the Circuit and District Courts than
that which is given to the Court of Claims. It is clearly the same
jurisdiction—"concurrent jurisdiction” only—within certain limits as
to amount; and the language in which those limits are expressed
furnishes an additional argument in favor of the conclusion which
we have reached. It is declared "that the District Courts of the
United States shall have concurrent jurisdiction with the Court of
Claims
where the amount of the claim does not exceed
$1,000," etc. This language is properly applicable only to a money
claim. Had anything but money been in the legislative mind the
language would have been, "where the amount or value of the thing
claimed does not exceed $1,000," etc.
Of course, our province is construction only; the policy of the
law is the prerogative of the legislative department. But, notwith-
standing the glowing terms in which able jurists have spoken of the
progress of civilization and enlightened government as exhibited in
subjecting government itself, equally with individuals, to the juris-
diction of its own courts, we should have been somewhat surprised
to find that the administration of vast public interests, like that of the
public lands, which belong so appropriately to the political depart-
ment, had been cast upon the courts—which it surely would have
been, if such a wide door had been opened for suing the government
to obtain patents and establish land claims, as the counsel for the ap-
pellees in these cases seems to imagine. We are satisfied that the door
has not yet been thrown open thus wide.
The decrees of the court are reversed in all the cases, and the causes
are respectively remanded, with instructions to dismiss the original
petitions or bills
MILLER, J. (dissenting). I find myself unable to concur with the
majority of the court in the construction given by it in the opinion
just read to the provisions of the act of March 3, 1887. This act was
Ch. 8)
387
ACTIONS FOR SPECIFIC RELIEF.
evidently intended to confer a new and important jurisdiction upon
the Court of Claims, and a concurrent jurisdiction, to a limited
extent, in the same class of cases, upon the Circuit and District Courts
of the United States. I can see no other possible object in that part
of the statute which confers this new jurisdiction by the use of lan-
guage which for the first time in the history of that court authorizes
it to take cognizance of claims where the party would be entitled to
redress against the United States, either in a court of law, equity, or
admiralty, if the United States were suable, than to make them suable
in such cases. To hold that the distinct grant of power here provided
for is controlled by the fact that this court has under former statutes
decided that it did not then exist, is simply to nullify this new grant
of power. The manifest purpose of this new act was to confer power
which the Court of Claims did not previously have, and to authorize
it to take jurisdiction of a class of cases of which it had not cogni-
zance before. To say that under such circumstances the new statute
is to be crippled and rendered ineffectual in the only new feature
which it has, in regard to the jurisdiction of that court, is, in my
mind, a refusal to obey the law as made by Congress in the matter in
which its power is undisputed. It is clear to me that Congress in-
tended by this act to enlarge very materially the right of suit against
the United States, to facilitate this right by allowing suits to be
brought in the Circuit and District Courts where the parties resided,
and that it also designed to enlarge the remedy in the Court of Claims
to meet all such cases in law, equity, and adıniralty against the United
States, as would be cognizable in such courts against individuals.
I am authorized to say that Mr. Justice FIELD agrees with me in
this dissent.1
UNITED STATES v. LEE.
KAUFMAN et al. v. SAME.
(Supreme Court of United States, 1882. 106 U. S. 196, 1 Sup. Ct. 240,
27 L. Ed. 171.)
In Error to the Circuit Court of the United States for the East-
ern District of Virginia.
MILLER, J.2 These are two writs of error to the same judgment,
one prosecuted by the United States, eo nomine, and the other by the
Attorney General of the United States in the names of Frederick
1 In 1892 a bill was passed by Congress conferring jurisdiction in the mat-
ter of land patents, but it was vetoed by President Harrison. President's Mes-
sages, vol. 9, p. 247, August 3, 1892. See Noble v. Union River Logging R. Co.,
147 U. S. 105, 13 Sup. Ct. 271, 37 L. Ed. 123 (1893), post, p. 638; United
States ex rel. Riverside Oil Co. y. Hitchcock, 190 U. S. 316, 23 Sup. Ct. 698,
47 L. Ed. 1074 (1903).
2 Only a portion of the opinion of Miller, J., is printed.
388
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RELIEF AGAINST ADMINISTRATIVE ACTION.
Kaufman and Richard P. Strong, the defendants against whom judg-
ment was rendered in the Circuit Court. The action was originally
commenced in the circuit court for the county of Alexandria, in the
state of Virginia, by the present defendant in error, against Kaufman
and Strong and a great number of others, to recover possession of
a parcel of land of about 1,100 acres, known as the Arlington estate.
It was an action of ejectinent in the form prescribed by the statutes of
Virginia, under which the pleadings are in the names of the real par-
ties plaintiff and defendant. As soon as the declaration was filed in
that court the case was removed into the Circuit Court of the United
States by writ of certiorari, where all the subsequent proceedings
took place. It was tried by a jury, and during the progress of the
trial an order was made, at the request of the plaintiff, dismissing
the suit as to all of the defendants except Kaufman and Strong.
Against each of these a judgment was rendered for separate parcels
of the land in controversy, namely, against Kaufman for about 200
acres of it, constituting the national cemetery and included within
its walls, and against Strong for the remainder of the tract, except
17 acres in the possession of Maria Syphax.
As the United States was not a party to the suit below, and, while
defending the action by its proper law officers, expressly declined to
submit itself as a defendant to the jurisdiction of the court, there
may exist some doubt whether it has a right to prosecute the writ of
error in its own name; but as the judgment against Kaufman and
Strong is here on their writ of error, and as under that writ all the
questions are raised which can be raised under the other, their writ
being prosecuted in the interest of the United States, and argued
here by the Solicitor General, the point is immaterial, and the ques-
tion has not been mooted. The first step taken in the case, after it
came into the Circuit Court of the United States, was the filing in the
clerk's office of that court of the following paper by the Attorney
General:
“George W. C. Lee v. Frederick Kaufman, R. P. Strong, and Others.
(In Ejectment.)
“And now comes the Attorney General of the United States and
suggests to the court and gives it to understand and be informed (ap-
pearing only for the purpose of this motion) that the property in
controversy in this suit has been for more than 10 years and now
is held, occupied, and possessed by the United States, through its of-
ficers and agents, charged in behalf of the government of the United
States with the control of the property, and who are in the actual
possession thereof, as public property of the United States, for pub-
lic uses, in the exercise of their sovereign and constitutional powers,
as a military station, and as a national cemetery established for the
burial of deceased soldiers and sailors, and known and designated as
the ‘Arlington Cemetery,' and for the uses and purposes set forth in
the certificate of sale, a copy of which, as stated and prepared by
1
Ch. 8)
389
ACTIONS FOR SPECIFIC RELIEF.
the plaintiff, and which is a true copy thereof, is annexed hereto and
filed herewith, under claim of title, as appears by the said certificate
of sale, and which was executed, delivered, and recorded as therein
appears.
"Wherefore, without submitting the rights of the government of
the United States to the jurisdiction of the court, but respectfully in-
sisting that the court has no jurisdiction of the subject in controver-
sy, he moves that the declaration in said suit be set aside, and all
the proceedings be stayed and dismissed, and for such other order as
may be proper in the premises. "Chas. Devens, Atty. Gen. U. S.”
The plaintiff demurrer to this suggestion, and, on hearing, the
demurrer was sustained. The case was thereupon tried before a
jury on the general issue pleaded by defendants Kaufman and Strong,
in the course of which the question raised by this suggestion of the
Attorney General was again presented to the court by prayers for
instruction, which were rejected, and exceptions taken.
The plaintiff offered evidence establishing title in himself by the
will of his grandfather, George Washington Parke Custis, who de-
vised the Arlington estate to his daughter, the wife of Gen. Robert
E. Lee, for life, and after her death to the plaintiff. This, with the
long possession under that title, made a prima facie right of re-
covery in plaintiff. The title relied on by defendants was a tax sale
certificate made by the commissioners appointed under the act of
Congress of June 7, 1862, "for the collection of direct taxes in the
insurrectionary districts within the United States," as amended by
the act of February 6, 1863. At this sale the land was bid in by
said commissioners for the United States, and a certificate of that
fact was given by these commissioners and introduced on the trial as
evidence by defendants. If this sale was a valid sale, and the cer-
tificate conveyed a valid title, then the title of plaintiff was ereb
divested, and he could not recover. If the proceedings evidenced by
the tax sale did not transfer the title of the property to the United
States, then it remained in the plaintiff, and, so far as the question
of title was concerned,' his recovery was a rightful one.
We have then two questions presented to the court and jury below,
and the same questions arise in this court on the record: (1) Could
any action be maintained against the defendants for the possession of
the land in controversy under the circumstances of the relation of
that possession to the United States, however clear the legal right to
that possession might be in plaintiff? (2) If such an action could
be maintained, was the prima facie title of plaintiff divested by the
tax sale and the certificate given by the commissioners? It is be-
lieved that no division of opinion exists among the members of this
court on the proposition that the rulings of law under which the lat-
ter question was submitted by the court to the jury was sound, and
that the jury were authorized to find, as they evidently did find, that
390
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RELIEF AGAINST ADMINISTRATIVE ACTION.
*
the tax certificate and the sale which it recited did not divest the
plaintiff of his title to the property.
For this reason we will consider first the assignment of errors on
that subject.
In approaching the other question which we
are called on to decide, it is proper to make a clear statement of what
it is.
The counsel for plaintiffs in error, and in behalf of the United
States, assert the proposition, that though it has been ascertained by
the verdict of the jury, in which no error is found, that the plaintiff
has the title to the land in controversy, and that what is set up in
behalf of the United States is no title at all, the court can render no
judgment in favor of the plaintiff against the defendants in the ac-
tion, because the latter hold the property as officers and agents of
the United States, and it is appropriated to lawful public uses.
This proposition rests on the principle that the United States can-
not be lawfully sued without its consent in any case, and that no
action can be maintained against any individual without such con-
sent, where the judgment must depend on the right of the United
States to property held by such persons as officers or agents for
the government. The first branch of this proposition is conceded to
be the established law of this country and of this court at the pres-
ent day; the second, as a necessary or proper deduction from the
first, is denied.
In order to decide whether the inference is justified from what is
conceded, it is necessary to ascertain, if we can, on what principle
the exemption of the United States from a suit by one of its citizens
is founded, and what limitations surround this exemption. In this,
as in most other cases of like character, it will be found that the doc-
trine is derived from the laws and practices of our English ancestors;
and while it is beyond question that from the time of Edward I until
now the king of England was not suable in the courts of that country,
except where his consent had been given on petition of right, it is a
matter of great uncertainty whether prior to that time he was not
suable in his own courts and in his kingly character as other per-
sons were. We have the authority of Chief Baron Comyn, 1 Dig.
132, "Action, C1," and 6 Dig. 67, "Prerogative," and of the Mirror
of Justices, c. 1, § 3, and chapter 5, § 1, that such was the law, and of
Bracton and Lord Holt that the king never was suable of common
right. It is certain, however, that after the establishment of the
petition of right about that time, as the appropriate manner of seek-
ing relief where the ascertainment of the parties' rights required a
suit against the king, no attempt has been made to sue the king in
any court except as allowed on such petition. It is believed that this
petition of right, as it has been practiced and observed in the admin-
istration of justice in England, has been as efficient in securing the
rights of suitors against the crown in all cases appropriate to judicial
Ch. 8)
391
ACTIONS FOR SPECIFIC RELIEF.
proceedings, as that which the law affords in legal controversies be-
tween the subjects of the king among themselves. "If the mode of
proceeding to enforce it be formal and ceremonious, it is, neverthe-
less, a practical and efficient remedy for the invasion by the sovereign
power of individual rights." U. S. v. O'Keefe, 11 Wall. 178, 20 L.
Ed. 131.
There is in this country, however, no such thing as the petition of
right, as there is no such thing as a kingly head to the nation, or to
any of the states which compose it. There is vested in no officer or
body the authority to consent that the state shall be sued except
in the lawmaking power, which may give such consent on the terms
it may choose to impose. The Davis, 10 Wall. 15, 19 L. Ed. 875.
Congress has created a court in which it has authorized suits to be
brought against the United States, but has limited such suits to those
arising on contract, with a few unimportant exceptions.
What were the reasons which forbid that the king should be sued
in his own court, and how do these reasons apply to the political
body corporate which we call the United States of America? As
regards the king, one reason given by the old judges was the ab-
surdity of the king's sending a writ to himself to command the king
to appear in the king's court. No such reason exists in our govern-
ment, as process runs in the name of the president and may be served
on the attorney general, as was done in the case of Chisholm v.
State of Georgia, 2 Dall. 419, 1 L. Ed. 440. Nor can it be said that
the dignity of the government is degraded by appearing as a de-
fendant in the courts of its own creation, because it is constantly ap-
pearing as a party in such courts, and submitting its rights as against
the citizens to their judgment.
Mr. Justice Gray, of the Supreme Court of Massachusetts, in an
able and learned opinion which exhausts the sources of information on
this subject, says: "The broader reason is that it would be incon-
sistent with the very idea of supreme executive power, and would
endanger the performance of the public duties of the sovereign, to
subject him to repeated suits as a matter of right, at the will of any
citizen, and to submit to the judicial tribunals the control and dis-
position of his public property, his instruments and means of carry-
ing on his government in war and in peace, and the money in his
treasury.” Briggs v. The Light Boats, 11 Allen, 162. As we have
no person in this government who exercises supreme executive power
or performs the public duties of a sovereign, it is difficult to see on
what solid foundation of principle the exemption from liability to
suit rests. It seems most probable that it has been adopted in our
courts as a part of the general doctrine of publicists, that the suprerne
power in every state, wherever it may reside, shall not be compelled,
by process of courts of its own creation, to defend itself from assaults
in those courts. [The opinion then reviews a number of earlier
392
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RELIEF AGAINST ADMINISTRATIVE ACTION.
1
American authorities, relying especially upon Meigs v. McClung's
Lessee, 9 Cranch, 11, 3 L. Ed. 639, and Osborn v. United States Bank,
9 Wheat. 738, 6 L. Ed. 204. This portion of the opinion is omitted.]
Looking at the question upon principle, and apart from the author-
ity of adjudged cases, we think it still clearer that this branch of the
defense cannot be maintained. It seems to be opposed to all the prin-
ciples upon which the rights of the citizen, when brought in collision
with the acts of the government, must be determined. In such cases
there is no safety for the citizen, except in the protection of the
judicial tribunals, fór rights which have been invaded by the officers
of the government, professing to act in its name. There remains to
him but the alternative of resistance, which may amount to crime.
The position assumed here is that, however clear his rights, no rem-
edy can be afforded to him when it is seen that his opponent is an
officer of the United States, claiming to act under its authority; for,
as Chief Justice Marshall says, to examine whether this authority
is rightfully assumed is the exercise of jurisdiction, and must lead
to the decision of the merits of the question. The objection of the
plaintiffs in error necessarily forbids any inquiry into the truth of
the assumption that the parties setting up such authority are lawfully
possessed of it, for the argument is that the formal suggestion of
the existence of such authority forbids any inquiry into the truth
of the suggestion.
But why should not the truth of the suggestion and the lawful-
ness of the authority be made the subject of judicial investigation ?
In the case supposed the court has before it a plaintiff capable of su-
ing, a defendant who has no personal exemption from suit, and a
cause of action cognizable in the court-a case within the meaning
of that term, as employed in the Constitution and defined by the de-
cisions of this court. It is to be presumed in favor of the jurisdic-
tion of the court that the plaintiff may be able to prove the right which
he asserts in his declaration. What is that right as established by
the verdict of the jury in this case? It is the right to the possession
of the homestead of plaintiff—a right to recover that which has been
taken from him by force and violence, and detained by the strong
hand. This right being clearly established, we are told that the
court can proceed no further, because it appears that certain military
officers, acting under the orders of the President, have seized this
estate, and converted one part of it into a military fort and another
into a cemetery. It is not pretended, as the case now stands, that
the president had any lawful authority to do this, or that the legis-
lative body could give him any such authority except upon payment
of just compensation. The defense stands here solely upon the ab-
solute immunity from judicial inquiry of every one who asserts au-
thority from the executive branch of the government, however clear
it may be made that the executive possessed no such power. Not
Ch.8)
393
ACTIONS FOR SPECIFIC RELIEF.
only that no such power is given, but that it is absolutely prohibited,
both to the executive and the legislative, to deprive any one of life,
liberty, or property without due process of law, or to take private
property without just compensation.
These provisions for the security of the rights of the citizen stand
in the Constitution in the same connection and upon the same ground
as they regard his liberty and his property. It cannot be denied that
both were intended to be enforced by the judiciary as one of the de-
partments of the government established by that Constitution. As
we have already said, the writ of habeas corpus has been often used
to defend the liberty of the citizen, and even his life, against the
assertion of unlawful authority on the part of the executive and
the legislative branches of the government. See Ex parte Milligan,
4 Wall. 2, 18 L. Ed. 281, and the Case of Kilbourn, discharged from
the custody of the sergeant at arms of the House of Representatives
by Chief Justice Carter. Kilbourn v. Thompson, 103 U. S. 168, 26
L. Ed. 377.
No man in this country is so high that he is above the law. No
officer of the law may set that law at defiance with impunity. All
the officers of the government, from the highest to the lowest, are
creatures of the law and are bound to obey it. It is the only supreme
power in our system of government, and every man who by accept-
ing office participates in its functions is only the more strongly bound
to submit to that supremacy, and to observe the limitations which
it imposes upon the exercise of the authority which it gives.
Courts of justice are established, not only to decide upon the con-
troverted rights of the citizens as against each other, but also upon
rights in controversy between them and the government, and the
docket of this court is crowded with controversies of the latter class.
Shall it be said, in the face of all this, and of the acknowledged right
of the judiciary to decide in proper cases, statutes which have been
passed by both branches of Congress and approved by the President
to be unconstitutional, that the courts cannot give remedy when the
citizen has been deprived of his property by force, his estate seized
and converted to the use of the government without any lawful au-
thority, without any process of law, and without any compensation,
because the President has ordered it and his officers are in posses-
sion? If such be the law of this country, it sanctions a tyranny
which has no existence in the monarchies of Europe, nor in any
other government which has a just claim to well-regulated liberty and
the protection of personal rights. It cannot be, then, that when in
a suit between two citizens for the ownership of real estate, one of
them has established his right to the possession of the property ace
cording to all the forms of judicial procedure, and by the verdict of
a jury and the judgment of the court, the wrongful possessor can say
successfully to the court, "Stop, here; I hold by order of the Presi-
394
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RELIEF AGAINST ADMINISTRATIVE ACTION.
dent, and the progress of justice must be stayed." That, though
the nature of the controversy is one peculiarly appropriate to the
judicial function, though the United States is no party to the suit,
though one of the three great branches of the government to which
by the constitution this duty has been assigned has declared its judg-
ment after a fair trial, the unsuccessful party can interpose an absolute
veto upon that judgment by the production of an order of the Sec-
retary of War, which that officer had no more authority to make than
the humblest private citizen.
The evils supposed to grow out of the possible interference of
judicial action with the exercise of powers of the government essen-
tial to some of its most important operations will be seen to be small
indeed compared to this evil, and much diminished, if they do not
wholly disappear, upon a recurrence to a few considerations. One
of these, of no little significance, is that during the existence of the
government for now nearly a century under the present constitution,
with this principle and the practice under it well established, no
injury from it has come to that government. During this time at
least two wars so serious as to call into exercise all the powers and
all the resources of the government have been conducted to a success-
ful issue. One of these was a great civil war, such as the world has
seldom known, which strained the powers of the national government
to their utmost tension. In the course of this war persons hostile to
the Union did not hesitate to invoke the powers of the courts for their
protection as citizens in order to cripple the exercise of the authority
necessary to put down the rebellion, yet no improper interference
with the exercise of that authority was permitted or attempted by
the courts. Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437;
Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721; Same v. Grant, 6
Wall. 241, 18 L. Ed. 848; Ex parte Tarble, 13 Wall. 397, 20 L. Ed.
597.
Another consideration is that since the United States cannot be
made a defendant to a suit concerning its property, and no judgment
in any suit against an individual who has possession or control of
such property can bind or conclude the government, as is decided by
this court in the case of Carr v. U. S., 98 U. S. 433, 25 L. Ed. 209,
already referred to, the government is always at liberty, notwithstand-
ing any such judgment, to avail itself of all the remedies which the
law allows to every person, natural or artificial, for the vindication
and assertion of its rights. Hence, taking the present case as an il-
lustration, the United States may proceed by a bill in chancery to
quiet its title, in aid of which, if a proper case is made, a writ of
injunction may be obtained. Or it may bring an action of eject-
ment, in which, on a direct issue between the United States as plain-
tiff and the present plaintiff as defendant, the title of the United
States could be judicially determined. Or, if satisfied that its title
Ch. 8)
390
ACTIONS FOR SPECIFIC RELIEF.
has been shown to be invalid, and it still desires to use the prop-
erty, or any part of it, for the purposes to which it is now devoted,
it may purchase such property by fair negotiation, or condemn it by
a judicial proceeding, in which a just compensation shall be ascer-
tained and paid according to the constitution.
If it be said that the proposition here established may subject the
property, the officers of the United States, and the performance of
their indispensable functions to hostile proceedings in the state courts,
the answer is that no case can arise in a state court where the in-
terests, the property, the rights, or the authority of the federal gov-
ernment may come in question, which cannot be removed into a court
of the United States under existing laws. In all cases, therefore,
where such questions can arise they are to be decided, at the option
of the parties representing the United States, in courts which are
the creation of the federal government. The slightest consideration
of the nature, the character, the organization, and the powers of these
courts will dispel any fear of serious injury to the government at
their hands. While by the Constitution the judicial department is
recognized as one of the three great branches among which all the
powers and functions of the government are distributed, it is inher-
ently the weakest of them all. Dependent as its courts are for the
enforcement of their judgments upon officers appointed by the exec-
utive, and removable at his pleasure, with no patronage and no
control of purse or sword, their power and influence rests solely up-
on the public sense of the necessity for the existence of a tribunal
to which all may appeal for the assertion and protection of rights
guaranteed by the Constitution and by the laws of the land, and on
the confidence reposed in the soundness of their decisions and the
purity of their motives. From such a tribunal no well-founded fear
can be entertained of injustice to the government or purpose to ob-
struct or diminish its just authority.
The Circuit Court was competent to decide the issues in this case
before the parties that were before it. In the principles on which
these issues were decided nó error has been found, and its judgment
is affirmed.
Mr. Justice Gray delivered a dissenting opinion, in which the
Chief Justice, Mr. Justice Bradley, and Mr. Justice Woods con-
curred.3
3 See observations of Justice Bradley in Carr v. United States, 98 U. S.
433, 437, 438, 25 L. Ed. 209 (1978); Hare, Constitutional Law, lecture 40,
p. 887.
Followed: Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137
(1897).
See Herr v. Central Kentucky Lunatic Asylum, 97 Ky. 458, 462, 30 S. W.
971 (28 L. R.·A. 394, 53 Am. St. Rep. 414) (1895) : “As a necessary conse-
quence of exemption of the state from suit without its consent, an action noin-
inally against an officer, but really against the state, to enforce performance
of its obligation in its political capacity, cannot be maintained. But if of
396
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RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 43.-INJUNCTION-IN GENERAL
The following brief report indicates the use of injunctions against
the action of administrative authorities at an early period:
BOX v. ALLEN, 1 Dickens, 49 (April 26, 1727): "Bill to be re-
lieved against an order of the commissioners of sewers. Demurrer
to so much of the bill as sought to alter any of the orders of the
commissioners, or to return any money by them received, for that
the remedy was at law, and no equity to be relieved in this court.
The demurrer was overruled."
Generally speaking, however, such use is of relatively recent origin.
See Kerrison v. Sparrow, Cooper's Cases in Chancery temp. Lord
Eldon, 305 (1815); Movers v. Smedley, 6 Johns. Ch. (N. Y.) 28
(1822), Kent, Ch.: "This is not the case of a private trust, but the
official act of a political body; and in the whole history of the Eng-
lish Court of Chancery there is no instance of the assertion of such
a jurisdiction as is now contended for."
In many cases the remedy in equity has been applied without being
questioned. See Cook Co. v. C., B. & Q. R. Co., 35 Ill. 460, 467; C.,
B. & Q. R. Co. v. Cole, 75 Ill. 591; Porter v. R., R. I., etc., R. Co., 76
Ill. 561; Hersey v. Board of Supervisors, 37 Wis. 75; Bank of
Utica v. Utica, 4 Paige (N. Y.) 399, 27 Am. Dec. 71; Noble v.
Union River Logging R. R., 147 U. S. 165, 13 Sup. Ct. 271, 37 L.
Ed. 123, post, p. 638 (see Cruickshank v. Bidwell, 176 U. S. 73, 80,
20 L. Ed. 280, 44 L. Ed. 377); Minnesota v. Hitchcock, 185 U. S.
373, 22 Sup. Ct. 650, 46 L.Ed. 954 (see Oregon v. Hitchcock, 202
U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935).
ficers or agents of the state invade private right in a mode not authorized
by statute under which they claim to act, or if such statute is invalid, unques-
tionably the person injured has at least a preventive remedy, although the
state may be affected by the proceeding, yet not a party to it.”
See Saranac Land & Timber Co. v. Roberts, 195 N. Y. 303, 88 N. E. 753
(1909): "It may be conceded that the state was in possession through the
agency of its forest commission; but nevertheless an action of ejectment.
brought against the commission would be in effect an action against the state
itself, judgment wherein would operate to deprive it of the property it had
acquired by purchase."
As to what constitutes a suit against the state, see, further, In re Ayers,
123 U. S. 443, 501, 8 Sup. Ct. 164, 31 L. Ed. 216 (1887); Fitts v. McGhee, 172
U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535 (1899); Ex parte Young, 209 U. S.
123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932 (1908); and an
article by Judge Jacob Trieber in 41 Am. Law Review, p. 844, on "Suability
of States by Individuals in the Courts of the United States."
Robertson, Civil Proceedings by and against the Crown, p. 332: “It is clear
from the statements made above that a petition of right lies for the recovery
of lands, but instances outside of the Year Books have not been numerous."
Ch.8)
397
ACTIONS FOR SPECIFIC RELIEF.
*
SECTION 44.— SAME - TO RESTRAIN POLITICAL ACTS
AND REMOVAL FROM OFFICE
STATE OF GEORGIA V. STANTON.
x
(Supreme Court of United States, 1867. 6 Wall. 50, 18 L. Ed. 721.)
This was a bill filed April 15, 1867, in this court, invoking the
exercise of its original jurisdiction, against Stanton, Secretary of
War, Grant, General of the Army, and Pope, Major General, assigned
to command of the Third military district, consisting of the states of
Georgia, Florida and Alabama (a district organized under the Act
of Congress of the 2d March, 1867, entitled "An act to provide
for the more efficient government of the rebel states," and an act of
the 23d of the same month supplementary thereto), for the purpose of
restraining the defendants from carrying into execution the several
provisions of these acts, acts known in common parlance as the "Re-
construction Acts.” Both these acts had been passed over the Presi-
dent's veto.
NELSON, J.4 * By the second section of the third article
of the Constitution "the judicial power extends to all cases, in law
and equity, arising under the Constitution, the laws of the United
States," etc., and, as applicable to the case in hand, "to controversies
between a state and citizens of another state," which controversies,
under the judiciary act, may be brought, in the first instance, before
this court in the exercise of its original jurisdiction; and we agree
that the bill filed presents a case which, if it be the subject of judi-
cial cognizance, would, in form, come under a familiar head of
equity jurisdiction—that is, jurisdiction to grant an injunction to
restrain a party from a wrong or injury to the rights of another,
where the danger, actual or threatened, is irreparable, or the remedy
at law inadequate. But, according to the course of proceeding un-
der this head in equity, in order to entitle the party to the remedy,
a case must be presented appropriate for the exercise of judicial
power; the rights in danger, as we have seen, must be rights of per-
sons or property, not merely political rights, which do not belong to
the jurisdiction of a court, either in law or equity.
The remaining question on this branch of our inquiry is whether,
in view of the principles above stated, and which we have endeavored
to explain, a case is made out in the bill of which this court can
take judicial cognizance. In looking into it, it will be seen that we
are called upon to restrain the defendants, who represent the execu-
tive authority of the government, from carrying into execution cer-
4 Only a portion of the opinion is printed.
398
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RELIEF AGAINST ADMINISTRATIVE ACTION,
tain acts of Congress, inasmuch as such execution would annul and
totally abolish the existing state government of Georgia, and es-
tablish another and different one in its place; in other words, would
overthrow and destroy the corporate existence of the state, by depriv-
ing it of all the means and instrumentalities where by its existence
might, and otherwise would, be maintained.
This is the substance of the complaint, and of the relief prayed
for. The bill, it is true, sets out in detail the different and substantial
changes in the structure and organization of the existing govern-
ment, as contemplated in these acts of Congress, which, it is charged,
if carried into effect by the defendants, will work this destruction.
But they are grievances, because they necessarily and inevitably tend
to the overthrow of the state as an organized political body. They
are stated, in detail, as laying a foundation for the interposition of
the court to prevent the specific execution of them, and the resulting
threatened mischief. So in respect to the prayers of the bill. The
first is that the defendants may be enjoined against doing or permit-
ting any act or thing, within or concerning the state, which is or may
be directed or required of them, by or under the two acts of Congress
complained of; and the remaining four prayers are of the same
character, except more specific as to the particular acts threatened
to be committed.
That these matters, both as stated in the body of the bill and
in the prayers for relief, call for the judgment of the court upon
political questions, and, upon rights, not of persons or property,
but of a political character, will hardly be denied. For the rights
for the protection of which our authority is invoked are the rights
of sovereignty, of political jurisdiction, of government, of corporate
existence as a state, with all its constitutional powers and privi-
leges. No case of private rights or private property infringed, or
in danger of actual or threatened infringement, is presented by the
bill, in a judicial form, for the judgment of the court.
It is true the bill, in setting forth the political rights of the state
and of its people to be protected, among other matters, avers that
Georgia owns certain real estate and buildings therein, state capitol
and executive mansion, and other real and personal property, and
that putting the acts of Congress into execution, and destroying the
state, would deprive it of the possession and enjoyment of its prop-
erty. But it is apparent that this reference to property and statement
concerning it are only by way of showing one of the grievances
resulting from the threatened destruction of the state, and in ag-
gravation of it, not as a specific ground of relief. This matter of
property is neither stated as an independent ground nor is it noticed
at all in the prayers for relief. Indeed, the case, as made in the
bill, would have stopped far short of the relief sought by the state,
and its main purpose and design given up, by restraining its re-
medial effect simply to the protection of the title and possession of its
Ch.8)
392
ACTIONS FOR SPECIFIC RELIEF.
property. Such relief would have called for a very different bill
from the one before us.
Having arrived at the conclusion that this court, for the reasons
above stated, possesses no jurisdiction over the subject-matter pre-
sented in the bill for relief, it is unimportant to examine the ques-
tion as it respects jurisdiction over the parties defendants.
Bill dismissed for want of jurisdiction,
*
5
In re SAWYER et al.
(Supreme Court of United States, 1888. 124 U. S. 200, 8 Sup. Ct. 482,
31 L. Ed. 402.)
Albert L. Parsons, police judge of the city of Lincoln, Neb., had
been subjected to proceedings on the part of the mayor and the city
council of said city looking to his removal from office. Claiming
that such proceedings violated the provisions of the Constitution of
the United States forbidding that any person should be deprived
of life, liberty, or property without due process of law, as well as
certain other provisions, he filed his bill in equity in the Circuit Court
of the United States for the District of Nebraska, and obtained a pre-
5 "The Congress is the legislative department of the government; the Presi-
dent is the executive department. Neither can be restrained in its action by
the judicial department, though the acts of both, when performed, are, in
proper cases, subject to its cognizance. The impropriety of such interference
will be clearly seen upon consideration of its possible consequences. Suppose
the bill filed and the injunction prayed for allowed. If the President refuse
obedience, it is needless to observe that the court is without power to enforce
its process. If, on the other hand, the President complies with the order of
the court and refuses to execute the acts of Congress, is it not clear that a
collision may occur between the executive and legislative departments of the
government? May not the House of Representatives impeach the President
for such refusal? And in that case could this court interfere, in behalf of
the President, thus endangered by compliance with its mandate, and restrain
by injunction the Senate of the United States from sitting as a court of im-
peachment? Would the strange spectacle be offered to the public world of an
attempt by this court to arrest proceedings in that court? These questions
answer themselves. It is true that a state may file an original bill in this
court. And it may be true, in some cases, that such a bill may be filed against
the United States. But we are fully satisfied that this court has no jurisdic-
tion of a bill to enjoin the President in the performance of his official duties,
and that no such bill ought to be received by us. It has been suggested that
the bill contains a prayer that, if the relief sought cannot be had against
Andrew Johnson, as President, it may be granted against Andrew Johnson as
a citizen of Tennessee. But it is plain that relief as against the execution of
an act of Congress by Andrew Johnson is relief against its execution by the
President. A bill praying an injunction against the execution of an act of
Congress by the incumbent of the presidential office cannot be received, wheth-
er it describes him as President or as a citizen of a state. The motion for
leave to file the bill is therefore denied.” State of Mississippi v. Johnson, 4
Wall. 475, 500, 18 L. Ed. 437 (1866).
In Wisconsin, the Supreme Court exercises original jurisdiction in equity
for the purpose of determining the legality of the action of the Secretary of
State in recognizing one of two rival factors as the regular party organization.
State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964 (1904).
400
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RELIEF AGAINST ADMINISTRATIVE ACTION.
6
liminary injunction restraining the mayor and eleven members of
the city council from proceeding further in said matter. The mayor
and the council, in disregard of the injunction, proceeded with the
charges, and Parsons was forcibly removed from office. The Cir-
cuit Court thereupon issued a rule to the mayor and councilmen to
show cause why they should not be attached for contempt. Upon
hearing, they were adjudged guilty of contempt, and, failing to pay
the fines imposed upon them, were taken and held in custody by the
marshal. They thereupon petitioned the Supreme Court of the United
States for a writ of habeas corpus.
GRAY, J.? The question presented by this petition of the mayor
and councilmen of the city of Lincoln for a writ of habeas corpus
is whether it was within the jurisdiction and authority of the Cir-
cuit Court of the United States, sitting as a court of equity, to make
the order under which the petitioners are held by the marshal.
Under the Constitution and laws of the United States, the distinc-
tion between common law and equity, as existing in England at the
time of the separation of the two countries, has been maintained,
although both jurisdictions are vested in the same courts. Fenn v.
Holme, 21 How. 481, 484-487, 16 L. Ed. 198; Thompson v. Rail-
road Co., 6 Wall. 134, 18 L. Ed. 765; Heine v. Levee Com'rs, 19
Wall. 655, 22 L. Ed. 223.
The office and jurisdiction of a court of equity, unless enlarged
by express statute, are limited to the protection of rights of prop-
erty. It has no jurisdiction over the prosecution, the punishment, or
the pardon of crimes or misdemeanors, or over the appointment and
removal of public officers. To assume such a jurisdiction, or to sus-
tain a bill in equity to restrain or relieve against proceedings for the
punishment of offenses, or for the removal of public officers, is to
invade the domain of the courts of common law, or of the execu-
tive and administrative department of the government.
Any jurisdiction over criminal matters that the English Court of
Chancery ever had became obsolete long ago, except as incidental to
its peculiar jurisdiction for the protection of infants, or under its
authority to issue writs of habeas corpus for the discharge of persons
unlawfully imprisoned. 2 Hale, P. C. 147; Gee v. Pritchard, 2
Swanst. 402, 413; 1 Spence, Eq. Jur. 689, 690; Attorney General
v. Insurance Co., 2 Johns. Ch. (N. Y.) 371, 378.
From long before the Declaration of Independence, it has been
settled in England that a bill to stay criminal proceedings is not
within the jurisdiction of the Court of Chancery, whether those
proceedings are by indictment or by summary process.
Lord Chief Justice Holt, in declining, upon a motion in the Queen's
Bench for an attachment against an attorney for professional mis-
6 The statement of facts found in the report of this case is omitted, a briefer
summary thereof being substituted therefor.
7 Only a portion of the opinion is printed.
Ch. 8)
401
ACTIONS FOR SPECIFIC RELIEF.
conduct, to make it a part of the rule to show cause that he should
not move for an injunction in chancery in the mean time, said: "Sure,
chancery would not grant an injunction in a criminal matter under
examination in this court; and, if they did, this court would break
it, and protect any that would proceed in contempt of it.” Holder-
staffe v. Saunders, Holt. 136, 6 Mod. 16.
Lord Chancellor Hardwicke, while exercising the power of the
Court of Chancery, incidental to the disposition of a case pending
before it, of restraining a plaintiff who had, by his bill, submitted
bis rights to its determination, from proceeding as to the same matter
before another tribunal, either by indictment or by action, asserted
in the strongest terms the .want of any power or jurisdiction to en-
tertain a bill for an injunction to stay criminal proceedings, saying:
“This court has not originally and strictly any restraining power
over criminal prosecutions." And again: “This court has no ju-
risdiction to grant an injunction to stay proceedings on a mandamus,
nor to an indictment, nor to an information, nor to a writ of pro-
hibition, that I know of.” Mayor, etc., v. Pilkington, 2 Atk. 302,
I Mod. 273; Montague v. Dudman, 2 Ves. Sr. 396, 398.
The modern decisions in England, by eminent equity judges, con-
cur in holding that a court of chancery has no power to restrain
criminal proceedings, unless they are instituted by a party to a suit
already pending before it, and to try the same right that is in issue
there. Attorney General v. Cleaver, 18 Ves. 211, 220; Turner v.
Turner, 15 Jur. 218; Saull v. Browne, 10 Ch. App. 64; Kerr v.
Preston, 6 Ch. Div. 463.
Mr. Justice Story, in his Commentaries on Equity Jurisprudence,
affirms the same doctrine. 2 Story, Eq. Jur. $ 893. And in the Amer-
ican courts, so far as we are informed, it has been strictly and uni-
formly upheld, and has been applied alike whether the prosecutions
or arrests sought to be restrained arose under statutes of the state,
or under municipal ordinances. West v. Mayor, etc., 10 Paige (N.
Y.) 539; Davis v. American Soc., 175 N. Y. 362; Tyler v. Hamers-
ley, 44 Conn. 419, 4:22, 26 Am. Rep. 479; Stuart v. Board Sup’rs,
83 Ill. 341, 25 Am. Rep. 397; Devron v. First Municipality, 4 La.
Ann. 11; Levy v. Shreveport, 27 La. Ann. 620; Moses v. Mayor,
etc., 52 Ala. 198; Gault v. Wallis, 53 Ga. 675; Phillips v. Mayor,
etc., 61 Ga. 386; Cohen v. Goldsboro Com'rs, 77 N. C. 2; Oil Co.
v. Little Rock, 39 Ark. 412; Spink v. Francis (C. C.) 19 Fed. 670,
and 20 Fed. 567; Suess v. Noble (C. C.) 31 Fed. 855.
It is equally well settled that a court of equity has no jurisdic-
tion over the appointment and removal of public officers, whether
the power of removal is vested, as well as that of appointment, in
executive or administrative boards or officers, or is intrusted to a
judicial tribunal. The jurisdiction to determine the title to a public
office belongs exclusively to the courts of law, and is exercised either
FR.ADM.LAW—26
402
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
by certiorari, error, or appeal, or by mandamus, prohibition, quo
warranto, or information in the nature of a writ of quo warranto, ac-
cording to the circumstances of the case, and the mode of procedure,
established by the common law or by statute.
No English case has been found of a bill for an injunction to
restrain the appointment or removal of a municipal officer. But an
information in the Court of Chancery for the regulation of Harrow
School, within its undoubted jurisdiction over public charities, was
dismissed so far as it sought a removal of governors unlawfully
elected, Sir William Grant saying: "This court, I apprehend, has
no jurisdiction with regard either to the election or the amotion of
corporators of any description.” Attorney General v. Clarendon, 17
Ves. 491, 498.
In the courts of the several states, the power of a court of equity
to restrain by injunction the removal of a municipal officer has been
denied in many well-considered cases.
Upon a bill in equity in the Court of Chancery of the state of
New York by a lawfully appointed inspector of flour, charging that
he had been ousted of his office by one unlawfully appointed in his
stead by the Governor, and that the new appointee was insolvent,
and praying for an injunction, a receiver, and an account of fees,
until the plaintiff's title to the office could be tried at law, Vice Chan-
cellor McCoun said: “This court may not have jurisdiction to de-
termine that question, so as to render a judgment or a decree of
ouster of the office." But he overruled a demurrer, upon the ground
that the bill showed a prima facie title in the plaintiff. Tappan v.
Gray, 3 Edw. Ch. (N. Y.) 450. On appeal, Chancellor Walworth
reversed the decree, “upon the ground that at the time of the filing
of this bill the Court of Chancery had no jurisdiction or power to
afford him any relief." 9 Paige, 507, 509, 512. And the chancellor's
decree was unanimously affirmed by the Court of Errors, upon Chief
Justice Nelson's statement that he concurred with the Chancellor
respecting the jurisdiction of courts of equity in cases of this kind.
✓ Hill, 259.
The Supreme Court of Pennsylvania has decided that an injunc-
tion cannot be granted to restrain a municipal officer from exercis-
ing an office which he has vacated by accepting another office, or from
entering upon an office under an appointment by a town council, al-
leged to be illegal; but that the only remedy in either case is at law
by quo warranto. Hagner v. Heyberger, Watts & S. (Pa.) 104,
42 Am. Dec. 220; Updegraff v. Crans, 47 Pa. 103.
The Supreme Court of Iowa, in a careful opinion delivered by
Judge Dillon, has adjudged that the right to a municipal office can-
not be determined in equity upon an original bill for an injunction.
Cochran v. McCleary, 22 Iowa, 75.
In Delahanty v. Warner, 15 Ill. 185, 20 Am. Rep. 237, it was de-
cided that a court of chancery had no jurisdiction to entertain a bill
Ch.8)
403
ACTIONS FOR SPECIFIC RELIEF.
for an injunction to restrain the mayor and aldermen of a city from
unlawfully removing the plaintiff from the office of superintendent
of streets, and appointing a successor; but that the remedy was at
law by quo warranto or mandamus.
In Sheridan v. Colvin, 18 I11, 237, it was held that a court of chan-
cery had no jurisdiction to restrain by injunction a city council
from passing an ordinance unlawfully abolishing the office of com-
missioner of police; and the court, repeating in great part the open-
ing propositions of Kerr on Injunctions, said: "It is elementary
law that the subject-matter of the jurisdiction of a court of chancery
is civil property. The court is conversant only with questions of
property and the maintenance of civil rights. Injury to property,
whether actual or prospective, is the foundation on which the juris-
diction rests. The court has no jurisdiction in matters merely crim-
inal or merely immoral, which do not affect any right to property;
nor do matters of a political nature come within the jurisdiction of
the Court of Chancery; nor has the Court of Chancery jurisdiction
to interfere with the duties of any department of government, except
under special circumstances, and when necessary for the protection
of rights of property.” 78 Ill. 247.
Upon like grounds it was adjudged in Dickey v. Reed, 178 Ill. 261,
that a court of chancery had no power to restrain by injunction a
board of commissioners from canvassing the results of an election ;
and that orders granting such an injunction, and adjudging the com-
missioners guilty of contempt for disregarding it, were wholly void.
And in Harris v. Schryock, 82 Ill. 119, the court, in accordance with
its previous decisions, held that the power to hold an election was
political, and not judicial, and therefore a court of equity had 110
authority to restrain officers from exercising that power.
Similar decisions have been made, upon full consideration, by the
Supreme Court of Alabama, overruling its own prior decisions to
the contrary. Beebe v. Robinson, 52 Ala. 66; Moulton v. Reid,
54 Ala. 320.
The statutes of Nebraska contain special provisions as to the
removal of officers of a county or of a city. “All county officers,
including justices of the peace, may be charged, tried, and removed
from office for official misdemeanors" of certain kinds, by the board
of county commissioners, upon the charge of any person. "The pro-
ceedings shall be as nearly like those in other actions as the nature
of the case admits, excepting where otherwise provided in this chap-
ter.” “The complaint shall be by an accuser against the accused,
and shall contain the charges with the necessary specifications under
them, and be verified by the affidavit of any elector of the state that he
believes the charges to be true.” No formal answer or replication is
required, "but, if there be an answer and reply, the provisions of this
[the?] statute relating to pleadings in actions shall apply." "The ques-
tions of fact shall be tried as in other actions, and, if the accused is
404
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RELIEF AGAINST ADMINISTRATIVE ACTION.
found guilty, judgment shall be entered removing the officer from his
office, and declaring the latter vacant, and the clerk shall enter a copy
of the judgment in the election book.” Neb. Comp. St. c. 18, art. 2,
$ .
The nature of this proceeding before county commissioners has
been the subject of several decisions by the Supreme Court of the
state. In the earliest one the court declared: "The proceeding is
quasi criminal in its nature, and the incumbent undoubtedly may be
required to appear without delay, and show cause wliy he should not
be removed. But questions of fact must be tried as in other actions,
and are subject to review on error. The right to a trial upon distinct
and specific charges is secured to every one thus charged with an
offense for which he is liable to be removed from office." "Neither
is it sufficient for the board to declare and resolve that the office is
vacant. There must be a judgment of ouster against the incumbent.”
State v. Sheldon, 10. Neb. 452, 456, 6 N. W. 757.
The authority conferred upon county commissioners to remove
county officers has since been held not to be an exercise of strictly
judicial power, within the meaning of that provision of the Constitu-
tion of Nebraska which requires that "the judicial power of this state
shall be vested in a Supreme Court, district courts,” and other courts
and magistrates therein enumerated. Const. Neb. art. 6, § 1; State
v. Oleson, 15 Neb. 247, 18 N. W. 45. But it has always been con-
sidered as so far judicial in its nature that the order of the county
commissioners may be reviewed on error in the district court of the
county, and ultimately in the supreme court of the state.
State v.
Sheldon, above cited; Minkler v. State, 14 Neb. 181, 15 N. W, 330;
State v. Meeker, 19 Neb. 444, 448, 27 N. W. 427. See, also, Railroad
v. Washington Co., 3 Neb. 30, 41; Code Civ. Proc. Neb. $$ 580–584,
599; Crim. Code, (Ed. 1885,) § 572.
This view does not substantially differ from that taken in other
states, where similar orders have been reviewed by writ of certiorari,
as proceedings of an inferior tribunal or board of officers, not com-
missioned as judges, yet acting judicially, and not according to the
course of the common law. Charles v. Mayor, etc., 27 N. J. Law,
203; People v. Fire Com’rs, 72 N. Y. 445; Donahue v. County of
Will, 100 I11. 94.
In Nebraska, as elsewhere, the validity of the removal of a public
officer, and the title of the person removed, or of a new appointee, to
the office, may be tried by quo warranto or mandamus. Comp. St.
Neb. c. 19, $$ 13, 24; Id. c. 71; Code Civ. Proc. $$ 645, 704; Cases
of Sheldon, Oleson, and Meeker, above cited; Queen v. Saddlers'
Co., 10 H. L. Cas. 404; Osgood v. Nelson, L. R. 5 H. L. 636. * * *
The whole object of the bill in equity filed by Parsons, the police
judge of the city of Lincoln, against the mayor and councilmen of the
city, upon which the Circuit Court of the United States made the or-
der for the disregard of which they are in custody, is to prevent his re-
Ch.8)
405
ACTIONS FOR SPECIFIC RELIEF.
moval from the office of police judge. No question of property is sug-
gested in the allegations of matters of fact in the bill, or would be in-
volved in any decree that the court could make thereon.
The case stated in the bill is that charges in writing against Par-
sons for appropriating to his own use moneys of the city were filed, as
required by the original ordinance, by Sheedy and Saunders (Hyatt,
not otherwise named in those charges, would seem to have signed
them as the additional witness required by that ordinance); that the
charges were referred by the mayor to a committee of three members
of the council ; that upon notice to the accused, and his appearance
before that committee, he objected that the committee had no author-
ity to try the charges, and the committee so reported to the council;
that thereupon Sheedy and Saunders procured the passage of the
amended ordinance, giving a committee, instead of the whole council,
power to try the charges, and report its finding to the council; that aft-
er the passage of this ordinance, and against his protest, the committee
resumed the trial, and, in order to favor and protect his accusers, and
fraudulently to obtain his removal from office, made a report to the
city council, falsely stating that they reported all the evidence, and
fraudulently suppressing a book which he had offered in evidence, and
finding him guilty, and recommending that his office be declared
vacant, and be filled by the appointment of some other person; and
that the mayor and city council set the matter down for final vote
at a future day named, and threatened and declared that they would
then, without hearing or reading the evidence taken before the com-
mittee, declare the office vacant, and appoint another person to fill it.
The bill prays for an injunction to restrain the mayor and council-
men of the city of Lincoln from proceeding any further with the
charges against Parsons, or taking any vote on the report of the com-
mittee, or declaring the office of police judge vacant, or appointing
any person to fill that office.
It has been contended. by both parties, in argument, that the pro-
ceeding of the city council for the removal of Parsons upon the
charges filed against Irim is in the nature of a criminal proceeding;
and that view derives some support from the judgment of the Supreme
Court of Nebraska in State v. Sheldon, 10 Neb. 152, 456, 6 N. W.
757, before cited. But, if the proceeding is of a criminal nature,
it is quite clear, for the reasons and upon the authorities set forth in
the earlier part of this opinion, that the case stated in the bill is wholly
without the jurisdiction of any court of equity.
If those proceedings are not to be considered as criminal or quasi
criminal, yet if, by reason of their form and object, and the acts
of the Legislature and decisions of the courts of Nebraska as to the
appellate jurisdiction exercised in such cases by the judicial power of
the state, they are to be considered as proceedings in a court of the
state (of which we express no decisive opinion), the restraining order
cof the Circuit Court was void, because in direct contravention of the
*
406
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
peremptory enactment of Congress that the writ of injunction shall
not be granted by any court of the United States to stay proceedings
in any court of a state, except when authorized by a bankrupt act.
Act March 2, 1793, c. 22, $ 5 (1 St. 335); Diggs v. Walcott, 4 Cranch,
179,2 L. Ed. 587; Peck v. Jenness, 7 How. 612, 625, 12 L. Ed. 841;
Rev. St. § 720 (U. S. Comp. St. 1901, p. 581); Watson v. Jones, 13
Wall. 679, 719, 20 L. Ed. 666; Haines v. Carpenter, 91. U. S. 254,
23 L. Ed. 345; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644; Sar-
gent v. Helton, 115 U. S. 348, 6 Sup. Ct. 78, 29 L Ed. 412.
But if those proceedings are to be considered as neither criminal
nor judicial, but rather in the nature of an official inquiry by a mu-
nicipal board intrusted by law with the administration and regulation
of the affairs of the city, still, their only object being the removal of
a public officer from his office, they are equally beyond the jurisdiction
and control of a court of equity.
The reasons which preclude a court of equity from interfering with
the appointment or removal of public officers of the government from
which the court derives its authority apply with increased force when
the court is a court of the United States, and the officers in question
are officers of a state. If a person claiming to be such an officer is, by
the judgment of a court of the state, either in appellate proceedings or
upon a mandamus or quo warranto, denied any right secured to him
by the Constitution of the United States, he can obtain relief by a writ
of error from this court.
In any aspect of the case, therefore, the Circuit Court of the United
States was without jurisdiction or authority to entertain the bill in
equity for an injunction. As this court has often said: "Where a
court has jurisdiction, it has a right to decide every question which
occurs in the cause; and, whether its decision be correct or other-
wise, its judgment, until reversed, is regarded as binding in every
other court; but, if it act without authority, its judgments and orders
are regarded as nullities. They are not voidable, but simply void."
Elliott v. Peirsol, 1 Pet. 328, 340, y L. Ed. 164; Wilcox v. Jack-
son, 13 Pet. 498, 511, 10 L. Ed. 264; Hickey v. Stewart, 3 How.
750, 762, 11 L. Ed. 814; Thompson v. Whitman, 18 Wall. 457, 467,
21 L. Ed. 89.
We do not rest our conciusion in this case, in any degree, upon the
ground, suggested in argument, that the bill does not show a matter
in controversy of sufficient pecuniary value to support the jurisdiction
of the Circuit Court, because an apparent defect of its jurisdiction
in this respect, as in that of citizenship of parties, depending upon an
inquiry into, facts which might or might not support the jurisdic-
tion, can be availed of only by appeal or writ of error, and does not
render its judgment or decree a nullity. Prigg v. Adams, 2 Salk.
674, Carth. 274; Fisher v. Bassett, 9. Leigh (Va.) 119, 131-133, 33
Am. Dec. 227; Ņavigation Co. v. Homestead Co., 123 U. S. 552, 8
Sup. Ct. 217, 31 L. Ed. 202. Neither do we say that, in a case be-
Ch.8)
407
ACTIONS FOR SPECIFIC RELIEF.
longing to a class or subject which is within the jurisdiction both of
courts of equity and of courts of law, a mistake of a court of equity,
in deciding that in the particular matter before it there could be no
full, adequate, and complete remedy at law, will render its decree
absolutely void.
But the ground of our conclusion is, that whether the proceedings
of the city council of Lincoln for the removal of the police judge,
upon charges of misappropriating moneys belonging to the city, are
to be regarded as in their nature criminal or civil, judicial or merely
administrative, they relate to a subject which the Circuit Court of
the United States, sitting in equity, has no jurisdiction or power over,
and can neither try and determine for itself, nor restrain by injunction
the tribunals and officers of the state and city from trying and deter-
mining. The case cannot be distinguished in principle from that of a
judgment of the common bench in England in a criminal prosecution,
which was coram non judice, or the case of a sentence passed by the
Circuit Court of the United States upon a charge of an infamous
criine, without a presentment or indictment by a grand jury. Case
of the Marshalsea, 5 [10] Coke, 68, 76; Ex parte Wilson, 114 U.
S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; Ex parte Bain, 121 U. S. 1,
y Sup. Ct. 781, 30 L. Ed. 849.
The Circuit Court being without jurisdiction to entertain the bill
in equity for an injunction, all its proceedings in the exercise of the
jurisdiction which it assumed are null and void. The restraining
order, in the nature of an injunction it liad no power to make. The
adjudication that the defendants were guilty of a contempt in disre-
garding that order is equally void, their detention by the marshal
under that adjudication is without authority of law, and they are
entitled to be discharged. Ex parte Rowland, 104 U. S. 604, 26 L.
Ed. 861; Ex parte Fisk, 113 U. S. 13, 5 Sup. Ct. 724, 28 L. Ed.
1117; In re Ayers, 123 U. S. 143, 507, 8 Sup. Ct. 164, 31 L. Ed.
216.
Writ of habeas corpus to issue.
WAITE, C. F. (dissenting). I am not prepared to decide that an
officer of a municipal government cannot, under any circumstances,
apply to a court of chancery to restrain the municipal authorities from
proceeding to remove him from his office without the authority of
law. There may be cases, in my opinion, when the tardy remedies
of quo warranto, certiorari, and other like writs will be entirely in-
adequate. I can easily conceive of circumstances under which a re-
moval, even for a short period, would be productive of irremediable
mischief. Such cases may rarely occur, and the propriety of such an
application may not often be seen; but if one can arise, and if the
exercise of the jurisdiction can ever be proper, the proceedings
of the court in due course upon a bill filed for such relief will not be
void, even though the grounds on which it is asked may be insuffi-
cient. If the court can take jurisdiction of such a case under any
408
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
circumstances, it certainly inust be permitted to inquire, when a bill
of that character is filed, whether the case is one that entitles the
party to the relief he asks, and, if necessary to prevent wrong in
the meantime, to issue in its discretion a temporary restraining order
for that purpose. Such an order will not be void, even though it
may be found on examination to have been improvidently issued.
While in force it must be obeyed, and the court will not be without
jurisdiction to punish for its contempt.
Such, in my opinion, was this case, and I therefore dissent from
the judgment which has been ordered.8
SECTION 45.-SAME--TO RESTRAIN ENFORCEMENT OF
ORDINANCES
CITY OF CHICAGO y, CHICAGO CITY RY. CO.
(Supreme Court of Illinois, 1906. 222 Ill. 560, 78 N. E. S90.)
Bill by the Chicago City Railway Company and others against the
City of Chicago to enjoin the enforcement of a city ordinance and to
restrain the prosecution of certain suits for the recovery of penalties.
From a decree in favor of complainants, defendant appeals. Bill
disinissed.
CARTWRIGHT, J.: On October 23, 1905, the city council of the city
of Chicago, appellant, passed an ordinance amending sections 1958
8 Accord: White v. Berry, 171 U. S. 366, 18 Sup. Ct. 917, 43 L. Ed. 199
(1898).
As to the development of the legal conception of office, changing from el
property right to a public function or position under the government, consti-
tuting neither property nor contract, see the following authorities :
Blackstone's Commentaries, II, 36, office one of incorporeal hereditaments;
St. 5 & 6 Edw. IV, c. 16, offices concerning justice and revenue may not be
sold, extended to all offices by St. 49 Geo. III, C. 126; Coke, Littleton, 36, grant
of office concerning justice, revenue, commonwealth, or benefit of subject, void
if to an incompetent person; Coke, Littleton, $ 378, in an office concerning the
commonwealth it is a condition in law that it be lawfully kept; Reynel's
Case, 9 Coke Rep. 95a (1611), a judicial office not grantable for years, since
otherwise it might yest in an executor.
Officers appointed durante bene placito, (revenue officers,) St. 14 Rich. II, c.
1. As to other royal appointments, see Smyth v. Latham, 9 Bing. 694 (1833);
Shenton v. Smith [1895] App. Cas. 229, 235.
Corporate officers, inherent power of amotion, Rex. v. Richardson, 1 Burr.
517 (1758).
American theory: Hoke v. Henderson, 15 N. C. 1, 25 Am. Dec. 677 (1833) ;
Butler v. Pennsylvania, 10 How. 402, 13 L. Ed. 472 (1850); Wilson v. North
Carolina, 169 U. S. 586, 18 Sup. Ct. 435, 42 L. Ed. 865 (1898); Taylor v. Beck-
ham, 178 U. S. 548, 20. Sup. Ct. 890, 1009, 44 L. Ed. 1187 (1900).
9 Only a portion of the opinion is printed.
Ch.8)
409
ACTIONS FOR SPECIFIC RELIEF.
and 1959 of the Revised Municipal Code of the city, so as to read as
follows: (Here follows the text of the ordinance, which makes
certain provisions for the comfort and safety of passengers on street
cars.]
The Chicago City Railway Company and the receivers of the
Chicago Union Traction Company, appellees, filed their bill in this
case in the circuit court of Cook county praying the court to enjoin
appellant from enforcing said ordinance so far as it is designed to
compel them to furnish a sufficient number of cars to carry passengers
comfortably and without overcrowding, from prosecuting suits
against them to enforce the payment of any penalty for any alleged
violation of the provision in question, and from bringing any fur-
ther suits or taking any steps or proceeding whatsoever thereunder.
The amended bill alleges that the provision requiring the appellees
to furnish a sufficient number of cars to carry passengers comfortably
and without overcrowding is void on three grounds, which are stated
by their counsel in their brief and argument, as follows: "(1) That
it is in violation of paragraph 96, art. 5, Cities and Villages Act
(Hurd's Rev. St. 1905, c. 24, § 62), which provides that no fine
or penalty shall exceed $200 for a single offense,' and also section
11 of article 2 of the Constitution, which provides that “penalties
shall be proportioned to the nature of the offense.' (2) That it is
uncertain, in that it does not sufficiently define the offense for which
its inultiplied penalties are imposed, and is for that reason void. (3)
That it is unreasonable, and therefore void."
The circuit court overruled appellant's demurrer to the bill as
amended, and, appellant having elected to stand by the demurrer, the
court entered a final decree finding that said provision of the ordinance
is void, and enjoining appellant from enforcing or attempting to
enforce the same, and from further prosecuting suits brought against
the appellees.
The material facts alleged in the amended bill and admitted by the
demurrer are: That before, and at the time of, the passage of the
ordinance the Chicago City Railway Company, one of the complain-
ants maintained and operated 220 miles of street railway on the
streets in the south division of the city of Chicago; that the receivers
of the Chicago Union Traction Company, the other complainant,
maintained and operated 303.93 miles of street railway on the streets
in the north and west divisions of the city, with terminal connections
in the south division; that the business center of the city is in the
south division, in what is known as the "down-town loop”; that
complainants are the only surface street railways serving the city of
Chicago, except 12 other lines of surface street railway operating in
outlying districts and not owning down-town terminals; that com-
plainants furnish transportation for more than 2,000,000 people, and
for almost all the population of the city; that it is, and has been,
the custom to permit passengers to stand in the aisles and on the
410
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
platforms, and all street cars are provided with straps and other de-
vices to accommodate standing passengers; that complainants have
made efforts to procure additional cars, but they can only be obtained
by placing orders with street car builders and manufacturers from
three to four months before the order can be filled; that during
the rush hours of the day it is impossible to prevent congestion of
travel in the business center; that congestion and disturbances are
caused by various conditions set out in the bill; and that the ordi-
nance is unreasonable, and therefore void as applied to complainants,
because it is impossible for them to comply with it. The bill alleges
that 60 suits have been brought against the Chicago City Railway
Company by the defendant before a justice of the peace; that 100
like suits have been brought against the receivers; that a suit in
debt has been brought against each complainant in the circuit court,
and in each suit the declaration contains 25 counts for violations of
the ordinance; and that the city intends to bring numerous other
suits for like violations.
The efforts of counsel for appellees, in their brief and argument,
are directed to giving such an interpretation to the ordinance as to
render it void. They contend that it imposes a penalty of not less
than $25 nor mare than $100 daily for each one of the thousands of
cars operated by them, respectively, in case one car is overcrowded,
and therefore the penalty exceeds $200 for one offense and is not
proportioned to the nature of the offense; that there is such uncer-
tainty in the meaning of the words “comfortably" and "overcrowd-
ing" that the ordinance is void on that account; and that under the
facts alleged in the bill the provision in question is unreasonable, and
therefore void. The ground upon which they say that a court of
equity ought to intervene and prevent enforcement of the ordinance
is that these two complainants are members of a class, and that a
multiplicity of suits will thereby be prevented. Counsel for appellant
deny that the provision of the ordinance in question is void for any
of the reasons assigned. They contend that the provision is a valid
exercise of the police power; that it was enacted in the interest of
the public health, safety, and welfare; that the prosecutions under
it are of a criminal or quasi criminal nature; and that equity has
no jurisdiction to enjoin the prosecution of suits of that nature.
It is settled beyond controversy that a court of equity has no juris-
diction to interfere with prosecutions for criminal offenses, and it makes
no difference whether the prosecution is under a statute which ap-
plies to the state at large or under an ordinance which is in force only
in a particular municipality. Courts of equity deal only with civil
and property rights, and their powers do not extend to determining
what laws or ordinances are valid or invalid unless such determina-
tion is incidental to the protection of rights recognized by courts of
equity alone.
*
*
Ch.8)
411
ACTIONS FOR SPECIFIC RELIEF.
In the bill in this case no facts are stated which would constitute
an irreparable injury to complainants. Many suits have been in-
stituted, but the imposition of many penalties for many violations of
an ordinance does not amount to irreparable injury. An offender
cannot, by multiplying his offense, invoke the aid of a court of equity.
Moses v. Mayor of Mobile, 52 Ala. 198. If a court could take ju-
risdiction of a bill to declare an ordinance void because of the numer-
ous prosecutions under it, a complainant would be able to confer ju-
risdiction by repeating his offense, and of course that could not be
so. The fact that a great many suits had been brought against a
single party was regarded as a sufficient cause for enjoining the prose-
cution of all the suits but one in the case of Third Avenue Railroad
Co. v. Mayor of New York, 54 N. Y. 159. The city had brought yn
suits in a justice's court to recover penalties for violating city ordi-
nances concerning the running of cars without a license. The rail-
road company brought its suit to secure an injunction against all
of the suits except one, and offered to abide the final decision of that
one. The relief was granted upon the ground that a justice's court
had no power to consolidate the actions.
But this court held a different doctrine in the case of Chicago,
Burlington & Quincy Railroad Co. v. City of Ottawa, 148 Ill. 397,
36 N. E. 85. In that case there were prosecutions before a justice
of the peace for violations of an ordinance, and appeals were taken
from judgments rendered. Ten other suits were begun, returnable
on successive days, Sundays excepted, and the prayer of the bill was
that the defendant be restrained from prosecuting under the ordi-
nance, and for a temporary writ restraining the city from prosecuting
any other suits except the two then pending on appeal in the circuit
court. The court held that every question arising in the suits could
be settled and determined on the trial of a case in the circuit court,
which was entirely competent to decide whether the ordinance was
valid or not, and that the circuit court was right in refusing to en-
join the prosecution of any of the suits. In this case all the ques-
tions can be finally settled in an action of debt in the circuit court,
or upon appeal from a justice's judgment. Even if the controversy
would not be finally settled in one suit against each complainant, this
bill could not be maintained on the ground that it is a bill of peace
to put an end to unnecessary and vexatious litigation. In such a
a
case the rights of the parties must be finally adjudicated in a court
of law. In cases where one judgment is not conclusive in a subse-
quent suit, equity will sometimes interfere to prevent litigation which
has become useless and unavailing, but the question must first be
determined in at least one action at law. The court will never en-
tertain a bill of peace so long as the right of the complainant is un-
certain.
There are cases in which a court of equity will interfere to en-
join the enforcement of an ordinance for the reason that a multi-
412
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
plicity of suits will be prevented thereby, and it is argued that this
is such a case. The bill is filed by two complainants, who say that
they also ask relief for all others similarly situated. The facts stated,
however, do not show that any other persons or corporations are
similarly situated. It appears from the bill that the complainants
serve practically the whole city of Chicago; that the population
served by them is upwards of 2,000,000; and that, with the exception
of 12 other lines operating in outlying districts and not owning down-
town terminals, they are the only persons or corporations furnish-
ing street railway transportation. It does not appear that the few
other persons or corporations operating in outlying and sparsely set-
tled districts do not furnish a sufficient number of cars, or that there
is any necessity in such districts for overcrowding, or that overcrowd-
ing cars is permitted, or that any prosecution has been begun or
threatened against any other person or corporation, or that any other
person or corporation has suffered, or will suffer, any hardship, or
make any complaint whatever of the ordinance or its provisions. The
case is not at all like one where a license is required for carrying
on an occupation or business, where the inference is that those en-
gaged in the occupation or business will be required to procure the
license and pay the fee therefor. The bill sets up conditions respect-
ing these complainants and their business which could have no ap-
plication to any other party, and it is clear that the controversy is be-
tween the two complainants and the defendant. There is nothing in
the bill to justify the assertion that they represent a class, and the bill
shows that the supposed class is not numerous.
Under the rule that equity will sometimes intervene to prevent a
multiplicity of suits, it was held in City of Chicago v. Collins, 175
I11. 445, 51 N. E. 907, 49 L. R. A. 408, 67 Am. St. Rep. 224, that 373
complainants, suing in behalf of themselves and between 200,000
and 300,000 others similarly situated, could maintain a bill to en-
join the enforcement of an ordinance requiring an annual license
fee. That was a case where a license was required, and a fee ex-
acted, from the complainants and all others who made use of means
of travel in the city of Chicago. They were all similarly situated.
The case of Wilkie v. City of Chicago, 188 Ill. 414, 58 N. E. 1004,
80 Am. St. Rep. 182, was a similar one. In that case 78 complainants
filed a bill in behalf of themselves and 900 or more others from
whom the city of Chicago exacted a license fee for pursuing their
occupation. Another case where it was held that a court of equity
might properly interfere was Spiegler v. City of Chicago, 216 Ill.
114, 74 N. E. 718, where complainants, on behalf of themselves and
3,000 or 4,000 other persons engaged in the same business as them-
selves, joined in a bill to prevent the enforcement of an ordinance li-
censing and regulating that business. In all of those cases there
was actual application of the ordinance to numerous persons, all of
whom were in like situations. In the case of German Alliance Ins.
Ch. 8)
413
ACTIONS FOR SPECIFIC RELIEF.
Co. v. Van Cleave, 191 111. 410, 61 N. E. 94, 42 corporations, who
were complainants, filed a bill to enjoin the defendant from paying
over to the State Treasurer moneys collected from them as a tax.
It would have required at least 42 suits to accomplish the purpose of
the bill, and the facts and law in each case would have been exactly
the same.
It was held that the case was a proper one for the exer-
cise of equitable powers. In the case of North American Ins. Co.
v. Yates, 214 Ill. 272, 73 N. E. 423, a bill was filed by the insurance
superintendent against 20 companies and 33 individuals to enjoin
them from transacting the business of fire insurance without com-
plying with the law. It was held that in such a case equity might
interfere.
Plainly, there is no similarity between those cases and this case in
which two complainants, operating in different parts of the city and
furnishing practically all the street railway service for the city of
Chicago, claim the right to maintain a suit in equity to settle the ques-
tion of the validity of this ordinance for the reason that there are oth-
er persons and corporations operating lines of street railway in out-
lying districts, where perhaps the difficulty is not so much to prevent
overcrowding cars as to fill them with passengers. So far as ap-
pears from the bill, the only real dispute is between the two com-
plainants and the defendant, and the rights and interests of numerous
parties are not involved.
The decree of the circuit court is reversed, and the bill disinissed.
Bill dismissed.10
DOBBINS v. CITY OF LOS ANGELES.
(Supreme Court of United States, 1904. 195 U. S. 223, 23 Sup. Ct. 18, 49
L. Ed. 169.)
In error to the Supreme Court of the state of California to review
a judgment which affirmed a judgment of the superior court in and
for the county of Los Angeles in that state dismissing a bill to
enjoin the enforcement of a municipal ordinance prohibiting the erec-
tion or maintenance of gasworks except within certain prescribed
limits. Reversed and remanded for further proceedings.
See same case below, 139 Cal. 179, 172 Pac. 970, 96 Am. St. Rep.
95.
Plaintiff in error filed a bill of complaint against the city of Los
Angeles, seeking an injunction to restrain the enforcement of cer-
tain ordinances prohibiting the erection or maintenance of gasworks
except within prescribed limits in said city.
10 See McQuillin, Municipal Ordinances, § 285.
See Delaney v. Flood, 183 N. Y. 323, 76 N. E. 209, 2 L. R. A. (N. S.) 678,
111 Am. St. Rep. 759 (1906), injunction refused to restrain police authorities
from stationing officers near place alleged to be kept for illegal purpose.
.
414
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
The case was decided upon demurrer to the bill.
demurrer to the bill. The complaint
sets forth, in substance: That on August 26, 1901, the city council
of Los Angeles adopted an ordinance making it unlawful to erect
and maintain gasworks outside of a certain district described in
the ordinance, and fixing penalties for the violation thereof. While
this ordinance was in force the plaintiff in error made a contract
with the Valley Gas & Fuel Company for the erection of certain
gasworks upon territory to be thereafter designated by her, and on
September 28, 1901, purchased lands within the limits of the privi-
leged district as fixed by the ordinance. That on the 22d of Novem-
ber, 1901, upon application to the board of fire commissioners of
the city of Los Angeles, that body granted to the plaintiff in error
the privilege to erect the gasworks upon the territory aforesaid.
Thereupon the plaintiff in error directed the Valley Gas & Fuel Com-
pany to proceed with the erection of the works upon the premises
so purchased. That the foundations were constructed at a cost of
upwards of $2,500. After the foundations had been nearly com-
pleted the city council, on November 25, 1901, passed a second or-
dinance, amending the first ordinance, and thereby so limiting the
boundaries of the territory within which the erection of gasworks
was permitted in said city as to include the premises of the plaintiff
in error within the prohibited territory. The work of constructing
the works was continuously prosecuted until the latter part of Feb-
ruary, 1902, when the plaintiff in error alleges that the city of Los
Angeles, combining and confederating with one James R. C. Burton
and other persons unknown, caused certain employés of the com-
pany engaged in the erection of said works to be arrested, charged
with the violation of the said city ordinance. Other arrests were
made on the 1st and 3d of March, 1902. On the 3d of March, 1902,
the city council passed a third ordinance, amending the ordinance of
November 25, 1901, in respect to the description of the district with-
in which gasworks could be erected. On March 6, 1902, the city
caused the arrest of certain persons employed by the company in
charge of the erection of the works, charged with the violation of
the amended city ordinance.
It is averred that the adoption by the city council of the ordinances
aforesaid, and the attempted enforcement thereof, were instigated
by officers and agents of the Los Angeles Lighting Company, a cor-
poration engaged in manufacturing and supplying gas in said city,
and having a monopoly of said business therein. It is further averred
that the action of the municipal authorities complained of was taken
for the purpose of protecting the said Los Angeles Lighting Com-
pany in the enjoyment of its monopoly. It is also claimed that the
territory surrounding the premises of the plaintiff in error, and
within which, under the ordinance of August 26, in force when the
complainant made her purchase and located and began the erec-
tion of the gasworks, it was lawful so to do, and which, by the amend-
Ch. 8)
415
ACTIONS FOR SPECIFIC RELIEF.
ing ordinances, was added to the prohibited territory, was and is a
district devoted almost exclusively to manufacturing enterprises.
Within its boundaries there is a large amount of vacant and unoc-
cupied land which is and will continue to be useless except for the
erection of manufacturing establishments; within which were located
at that time a soap factory, a wool-pulling factory, three wineries,
numerous oil wells in operation, iron foundry, brass foundry, oil
refinery; immediately east of said tract, railroads and an extensive
tannery; immediately north, the oil tanks and refinery of the Standard
Oil Company. That the works being constructed for the plaintiff
in error are to be built upon concrete foundations with a superstruc-
ture of noncombustible material, so that there can be no danger from
explosion, bursting, or leaking. The machinery is to be of the
most approved pattern; and that there can be no leakage or escape
of odors or any interference with the health, comfort, or safety of
the inhabitants of the city.
The plaintiff in error relying upon the protection of the fourteenth
amendment to the Constitution of the United States, prays that the
permit granted by the board of fire commissioners be declared to
be a valid and subsisting contract between the city of Los Angeles
and herself, and that all ordinances passed by the city council in con-
travention thereof be declared void; that the defendant be enjoined
from enforcing said ordinances against the plaintiff, from delaying
or interfering with the action of the plaintiff in erecting the said
works, from interfering with the maintenance and operation of the
same, and for general relief.
DAY, J.11 As this case was decided upon demurrer to the complaint,
the allegations thereof must be taken as true.
The question pre-
sented involves the right of the plaintiff in error to invoke the pro-
tection of the fourteenth amendment against alleged infraction of her
rights by the action of the city council in passing and enforcing the
ordinances which prevent the carrying on of the business of making
and selling gas to the people of the city.
In this case we think the allegations of the bill disclose such
character of territory, such sudden and unexplained change of its
limits after the plaintiff in error had purchased the property and
gone forward with the erection of the works, as to bring it within
that class of cases wherein the court may restrain the arbitrary, and
discriminatory exercise of the police power which amounts to a
taking of property without due process of law and an impairment
of property rights protected by the fourteenth amendment to the fed-
eral Constitution.
It is also urged by the defendants in error that a court of equity
will not enjoin prosecution of a criminal case; but, as we have seen,
the plaintiff in error in this case had acquired property rights which,
11 Only a portion of the opinion is printed.
416
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
.
by the enforcement of the ordinances in question, would be destroyed
and rendered worthless. If the allegations of the bill be taken as
true, she had the right to proceed with the prosecution of the work
without interference by the city authorities in the form of arrest
and prosecution of those in her employ.
It is well settled that, where property rights will be destroyed, un-
lawful interference by criminal proceedings under a void law or or-
dinance may be reached and controlled by a decree of a court of
equity. Davis & F. Mfg. Co. v. Los Angeles, 189 U. S. 207–218,
23 Sup. Ct. 498, 47 L. Ed. 1778-780, and cases therein cited.
Upon the whole case, we are of opinion that the demurrer should
have been overruled and the city of Los Angeles put upon its answer.
For the reasons herein stated, the judginent of the Supreme Court
of California is reversed, and the cause remanded to that court for
further proceedings not in conflict with this opinion.12
12 “We cannot agree with counsel for the appellee that a court of equity
has no jurisdiction to restrain the appellee (mayor and city council of Balti-
more] in the enforcement of the ordinance in question, even though it may be
conceded to be invalid, and that its execution would affect injuriously the
rights of the appellant and others. In Page's Case, 34 Md. 558 (1871), and
in Holland's Case, 11 Md. 189, 69 Am. Dec. 195 (1857), and in other cases, we
have said that 'where an ordinance is void, and its provisions are about to be
enforced, any party whose interests are to be injuriously affected thereby may,
and properly ought to, go into a court of equity and have the execution of the
ordinance stayed by injunction.'" Deems y. Baltimore, 80 Md. 164, 30 Atl.
649, 26 L. R. A. 541, 45 Am. St. Rep. 339 (1894).
Au injunction will not be grauted against the enactment of an ordinance.
McQuillin, Municipal Ordinances, $ 163; Stevens v. St. Mary's Training
School, 144 Ill. 336, 32 N. E. 962, 18 L. R. A. 832, 36 Am. St. Rep. 438 (1893).
See State ex rel. Rose v. Superior Court of Milwaukee County, 105 Wis. 651,
677, 678, 81 N. W. 1046, 48 L. R. A. 819 (1900).
Injunctions to restrain boards of health and other sąnitary authorities have
been granted: (1) Where the proposed action of the board threatened to
Create a nuisance. Baltimore v. Fairfield Improvement Co., 87 Md. 352, 39
Atl. 1081, 40 L. R. A. 494, 67 Am. St. Rep. 344 (1891); Upjohn y. Richland Bd.
of Healtà, 46 Mich. 542, 9 N. W. 845, 41 Am. St. Rep. 178 (1881); Thompson
1. Kimbrough, 23 Tex. Civ. App. 350, 57 S. W. 328 (1900). (2) Where the
sanitary authority proposed to act beyond its jurisdiction. Hoffman v.
Schultz, 31 How. Proc. (N. Y.) 385 (1866). (3) Where the summary abate-
ment of property was threatened. Babcock v. Buffalo, 56 N. Y. 268 (1874);
Rogers v. Barker, 31 Barb. (N. Y.) 447 (1860); Clark v. Syracuse, 13 Barb.
(N. Y.) 32 (1852). (4) Where jurisdictional requirements have not been ob-
served, especially that of notice and hearing. Eddy v. Bd. of Health, 10
Phila. (Pa.) 94 (1873); Weil v. Ricord, 26 N. J. Eq. 169 (1873). (5) Where
they act fraudulently or oppressively. Chase v. Middleton, 123 Mich. 647, 82
N. W. 612 (1900).
On the other hand, it has been said that there is no power to inquire into
the question whether there is a nuisance, and to enjoin the board of health if
it should turn out that in the judgment of the court there is none. Stone y.
Heath, 179 Mass. 385, 60 N. E. 975 (1901).
Ch.8) ..
417
ACTIONS FOR SPECIFIC RELIEF,
SECTION 46.--SAME-TO RESTRAIN THE ASSESSMENT
AND COLLECTION OF TAXES
PITTSBURG, ETC., RY. v. BOARD OF PUBLIC WORKS OF
WEST VIRGINIA.
(Supreme Court of United States, 1898. 172 U. S. 32, 19 Sup. Ct. 90, 43
L. Ed. 354.)
Mr. Justice Gray delivered the opinion of the court.18
The collection of taxes assessed under the authority of a state
is not to be restrained by writ of injunction from a court of the
United States, unless it clearly appears, not only that the tax is il-
legal, but that the owner of the property taxed has no adequate rem-
edy by the ordinary processes of the law, and that there are special
circumstances bringing the case under some recognized head of equity
jurisdiction. Dows v. Chicago, 11 Wall. 108, 20 L. Ed. 65; Hanne-
winkle v. Georgetown, 15 Wall. 547, 21 L. Ed. 231; State Railroad
Tax Cases, 92 U. S. 575, 23 L. Ed. 663; Union Pacific Ry. v. Chey-
enne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098; Milwaukee v.
Koeffler, 116 U. S. 219, 6 Sup. Ct. 372, 29 L. Ed. 612; Shelton v.
Platt, 139 U. S. 591, 11 Sup. Ct. 646, 35 L. Ed. 273.
In Dows v. Chicago, a citizen of the state of New York, owning
shares in a national bank organized and doing business in the city
of Chicago, filed a bill in equity, in the Circuit Court of the United
States for the Northern District of Illinois, to restrain the collection
of a tax assessed by the city of Chicago upon his shares in the bank,
alleging, among other things, that the tax was illegal and void, be-
cause the tax was not uniform and equal with taxes on other property,
as required by the Constitution of the state, and because the shares
were taxable only at the domicile of the owner, and therefore were
not property within the jurisdiction of the state of Illinois. This
court, speaking by Mr. Justice Field, without considering the validity
of the objections to the tax, held that the bill could not be maintained,
saying: “Assuming the tax to be illegal and void, we do not think
any ground is presented by the bill justifying the interposition of a
court of equity to enjoin its collection. The illegality of the tax and
the threatened sale of the shares for its payment constitute of them-
selves alone no ground for such interposition. There must be some
special circumstances attending a threatened injury of this kind, dis-
tinguishing it from a common trespass, and bringing the case under
some recognized head of equity jurisdiction, before the preventive
13 Only a portion of the opinion is printed.
TR.ADM.LAW-27
418
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
remedy of injunction can be invoked. It is upon taxation that the
several states chiefly rely to obtain the means to carry on their re-
spective governments, and it is of the utmost importance to all of
them that the modes adopted to enforce the taxes levied should be
interfered with as little as possible. Any delay in the proceedings of
the officers, upon whom the duty is devolved of collecting the taxes,
may derange the operations of the government, and thereby cause
serious detriment to the public. No court of equity will, therefore,
allow its injunction to issue to restrain their action, except where it
may be necessary to protect the rights of the citizen whose property
is taxed, and he has no adequate remedy by the ordinary processes
of the law." 11 Wall. 109, 110, 20 L. Ed. 65. "The party of whom
an illegal tax is collected has ordinarily ample remedy, either by ac-
tion against the officer making the collection or the body to whom the
tax is paid. Here such remedy existed. If the tax was illegal, the
plaintiff protesting against its enforcement might have had his ac-
tion, after it was paid, against the officer or the city to recover back
the money, or he might have prosecuted either for his damages. No
irreparable injury would have followed to him from its collection.
Nor would he have been compelled to resort to a multiplicity of suits
to determine his rights. His entire claim might have been embraced
in a single action. 11 Wall. 112, 20 L. Ed. 65.
In the State Railroad Tax Cases, this court, in a careful and thor-
ough opinion delivered by Mr. Justice Miller, stated that "it has
been repeatedly decided that neither the mere illegality of the tax
complained of, nor its injustice nor irregularity, of themselves, give
the right to an injunction in a court of equity," referred to section
3224 of the Revised Statutes (U. S. Comp. St. 1901, p. 2088), which
provides that “no suit for the purpose of restraining the assessment
or collection of any tax shall be maintained in any court," and said
that, “though this was intended to apply alone to taxes levied by the
United States, it shows the sense of Congress of the evils to be
feared if courts of justice could, in any case, interfere with the pro-
cess of collecting the taxes on which the government depends for
its continued existence.” The court then quoted from Dows v. Chi-
cago and Hannewinkle v. Georgetown, above cited, and proceeded
as follows: “We do not propose to lay down in these cases any ab-
solute limitation of the powers of a court of equity in restraining the
collection of illegal taxes. But we may say that, in addition to il-
legality, hardship or irregularity, the case must be brought within
some of the recognized foundations of equitable jurisdiction, and
that mere errors or excess in valuation, or hardship or injustice of
the law, or any grievance which can be remedied by a suit at law,
either before or after payment of taxes, will not justify a court
of equity to interpose by injunction to stay collection of a tax.
One of the reasons, wly a court should not thus interfere, as it
would in any transaction between individuals, is that it has no power
Ch.8)
419
ACTIONS FOR SPECIFIC RELIEF.
to apportion the tax or to make a new assessment, or to direct another
to be made by the proper officers of the state. These functions are
wholly beyond the power of the court when so acting. The levy of
taxes is not a judicial function. Its exercise, by the Constitutions
of all the states, and by the theory of our English origin, is exclusive-
ly legislative. A court of equity is, therefore, hampered in the exer-
cise of its jurisdiction by the necessity of enjoining the tax com-
plained of, in whole or in part, without any power of doing com-
plete justice by making, or causing to be made, a new assessment on
any principle it may decide to be the right one.14 In this manner, it
may, by enjoining the levy, enable the complainant to escape wholly
the tax for the period of time complained of, though it be obvious that
he ought to pay a tax if imposed in the proper manner.” 92 U. S.
613-615, 23 L. Ed. 663.
In Union Pacific Railway Co. v. Cheyenne, in which the Union
Pacific Railway Company obtained an injunction against the levy of
a tax by the city of Cheyenne, the facts were peculiar. The plain-
tiff, owning many lots of land in that city, had paid a tax assessed
on all its property by a board of equalization under a general statute
of the territory of Wyoming, and had also been taxed by the city
of Cheyenne under provisions of its charter which had been repealed
by that statute; and the bill showed, as stated in the opinion, that
the levy complained of "would involve the plaintiff in a multiplicity
of suits as to the title of lots laid out and being sold, would prevent
their sale, and would cloud the title to all its real estate." 113 U.
S. 526, 527, 5 Sup. Ct. 601, 606, 28 L. Ed. 1098.
* 15
14 Compare remarks of Cooley, J., on advantages of injunction in tax pro
ceedings, in Whitbeck v. Hudson, 50 Mich. 86, 88, 14 N. W. 708 (1883).
15 In the case last cited (Union Pacific Railway Co. v. Cheyenne, 113 U.
S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098 [1885]) the court says: “It cannot be
denied that bills in equity to restrain the collection of taxes illegally imposed
have frequently been sustained. But it is well settled that there ought to be
some equitable ground for relief besides the mere illegality of the tax; for
it must be presumed that the law furnishes a' remedy for illegal taxation. It
often happens, however, that the case is such that the person illegally taxed
would suffer irremediable damage, or be subject to vexatious litigation, if he
were compelled to resort to his legal remedy alone. For example, if the legal
remedy consisted only of an action to recover back the money after it had
been collected by distress and sale of the taxpayer's lands, the loss of his
freehold by means of a tax sale would be a mischief aard to be remedied.
Even the cloud cast upon his title by a tax under which such a sale could be
made would be a grievance which would entitle him to go into a court of
equity for relief. Judge Cooley fairly sums up the law on this subject as fol-
lows: To entitle a party to relief in equity against an illegal tay, he must by
his bill bring his case under some acknowledged head of equity jurisdiction.
The illegality of the tax alone, or the threat to sell property for its satisfac-
tion, cannot, of themselves, furnish any ground for equitable interposition.
In ordinary cases a party must find his remedy in the courts of law, and it
is not to be supposed he will fail to find one adequate to his proper relief.
Cases of fraud, accident, or mistake, cases of cloud upon the title to one's
property, and cases where one is threatened with irremediable mischief may
demand other remedies than those the common law can give, and these in
proper case, may be afforded in courts of equity.' This statement is in gener-
420
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RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 47.—MANDAMUS
BLACKSTONE'S COMMENTARIES, BOOK III, p. 110.
A Writ of Mandamus is, in general, a command issuing in the
king's name from the Court of King's Bench, 16 and directed to any
person, corporation, or inferior court of judicature within the king's
dominions, requiring them to do some particular thing therein specified,
nich appertains to their office and duty, and which the Court of
King's Bench has previously determined, or at least supposes, to be
consonant to right and justice.
It is a high prerogative writ, of a most extensively remedial nature
and may be issued in some cases where the injured party has also an-
other more tedious method of redress, as in the case of admission or
restitution to an office ;17 but it issues in all cases where the party hath
a right to have any thing done, and hath no other specific means of
compelling its performance. A mandamus therefore lies to compel
al accordance with the decisions of this court, as well as of many state courts.
Dows V. Chicago, 11 Wall. 108, 109, 20 L. Ed. 65 (1870); Hannewinkle v.
Georgetown, 15 Wall. 547, 549, 21 L. Ed. 231 (1872); State Railroad Tax
Cases, 92 U. $. 575, 612, 613, 23 L. Ed. 663 (1875), and cases there cited. In
Cummings v. National Bank, 101 U. S. 153, 156, 25 I.. Ed. 903 (1879), where
the bank filed a bill to prevent the collection of a tax wrongfully assessed by
the state against the shares of its stockholders, and which the bank was re-
quired to pay, we held that the fiduciary character in which the bank stood
to its stockholders entitled it to come into a courts of equity for relief. In
the same case the fact that a like remedy by injunction was given to parties
in the state court was regarded as entitled to much weight, and it was fur-
ther held that where a rule or system of valuation was adopted by the state
board of assessment, calculated to operate unequally, and to violate the Con-
stitution of the state, and applicable to a large class of individuals, or cor-
porations, equity might properly interfere to restrain the operation of such
unconstitutional exercise of power. And in Litchfield, v. Webster County, 101
U. S. 773, 779, 25 L.. Ed. 925 (1879), we held that a court of equity might re-
liere against an excessive rate of interest on taxes in arrear, which was really
in the nature of a penalty, and which the state could not fairly and equitably
demand, having itself claimed title to the property taxed. These authorities
are sufficient to illustrate the rules by which courts of equity should be gov-
erned in assuming jurisdiction of suits brought to arrest the collection of il-
legal taxes. We think that the allegations of the bill in this case bring it
fairly within the jurisdiction of the court. It shows that it would involve the
plaintiff in a multiplicity of suits as to the title of lots laid out and being
sold, would prevent their sale, and would cloud the title to all its real estate.
We think that these results are sufficiently apparent, and render it unneces-
sary to look farther." 113 U. S. 525–527, 5 Sup. Ct. 605-606, (28 L. Ed. 1098
(1885).
"If there was no right to assess the particular thing at all,
assessment under such circumstances would be void, and, of course, no pay-
16 As to the courts which issue Mandamus, see School Inspectors of Peoria
v. People, 20 Ill. 525 (1858), and note 58 L. R. A. 333.
17 See King v. Wheeler, Lee temp. Hardwicke, 99 (1735).
an
Ch.8)
421
ACTIONS FOR SPECIFIC RELIEF.
the admission or restoration of the party applying to any office or fran-
chise of a public nature, whether spiritual or temporal; to academical
degrees; to the use of a meeting-house, etc. It lies for the produc-
tion, inspection, or delivery of public books and papers; for the sur-
render of the regalia of a corporation; to oblige bodies corporate to
affix their common seal; to compel the holding of a court; and for an
indefinite number of other purposes, which it is impossible to recite
minutely.
CODE OF PRACTICE OF GEORGIA OF 1895.
Sec. 4867. All official duties should be faithfully fulfilled, and when-
ever from any cause, a defect of legal justice would ensue from fail-
ure or improper fulfillment, the writ of mandamus may issue to com-
pel a due performance, if there be no other specific legal remedy for
the legal rights.
Sec. 4868. Mandamus does not lie as a private remedy between in-
dividuals to enforce private rights, nor to a public officer who has an
ment or tender of any amount would be necessary before seeking an injunc-
tion.” People's National Bank v. Marye, 191 U. S. 272, 281, 24 Sup. Ct. 68,
71, 48 L. Ed. 180 (1903).
"The assessment being bad, for the reasons which we have stated, the board
of tax commissioners acted without jurisdiction, according to the decision of
the Supreme Court of Indiana. Hart v. Smith, 159 Ind. 182 [64 N. E. 661, 58
L. R. A. 949, 95 Am. St. Rep. 280 (1902)]. We do not abate at all from the
strictness of the rule that in general an injunction will not be granted against
the collection of taxes. State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed.
663 (1875). But it was recognized in the passage just quoted from People's
National Bank v. Marye that under the present circumstances a resort to
equity may be proper. The course adopted is the same that was taken with-
out criticism from the court in Adams Express Co. v. Ohio State Auditor, 165
U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683 (1897). It avoids the necessity of
suits against the officers of each of the counties of the state, and we are of
opinion that the bill may be maintained. Union Pacific Ry. v. Cheyenne, 113
U. S. 516, 5 Sup. Ct. 601, 28 L. Ed. 1098 (1885); Pittsburg, Cincinnati, Chi-
cago & St. Louis Ry. v. Board of Public Works, 172 U. S. 32, 19 Sup. Ct. 90,
43 L. Ed. 354 (1898)." Fargo v. Hart, 193 U. S. 490, 503, 24 Sup. Ct. 498,
501, 48 L. Ed. 761 (1904).
In a number of states there are statutes prohibiting the granting of injunc-
tions to restrain the assessment or collection of taxes. See Eddy V. Tp. of
Lee, 73 Mich. 123, 40 N. W. 792 (1888); Laird-Norton Co. v. Pine County, 72
Minn. 409, 75 N. W. 723 (1898). But these statutes do not control the equi-
table jurisdiction of the federal courts. Taylor v. Louisville & N. R. CO., SS
Fed. 350, 31 C. C. A. 537 (1898).
The following additional cases in this collection are suits to restrain public
officers or bodies : Lingo y. Burford, 112 Mo. 149, 20 S. W. 459 (1892); Pitts-
burg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114, 38 L.
Ed. 1031 (1894); State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663
(1875); Huling v. Ehrich, 183 Ill. 315, 155 N. E. 636 (1899); Metropolitan
Bd. of Health v. Heister, 37 N. Y. 661 (1868); North American Cold Storage
Co. v. Ch go, 211 U. S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195 (1908); Eckhardt
v. Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204 (1897); Lowell y. Archambault,
422
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RELIEF AGAINST ADMINISTRATIVE ACTION.
absolute discretion to act or not, unless there is a gross abuse of such
discretion; but it is not confined to the enforcement of mere minis-
terial duties.
FORM OF PRO-
SECTION 48.-SAME-NATURE AND
CEEDING
STATE ex rel. ATCHISON, T. & S. F. R. CO. v. BOARD OF
COM'RS OF JEFFERSON COUNTY.
(Supreme Court of Kansas, 1873. 11 Kan. 66.)
VALENTINE, J. This is an original proceeding in mandamus,
brought in the name of the state of Kansas, on the relation of the
Atchison, Topeka & Santa Fé Railroad Company, against the board of
county commisioners of Jefferson county, to compel said county com-
inissioners to issue certain bonds of said county to said railroad com-
189 Mass. 70, 75 N. E. 65 (1905); Chicago v. Burtice, 24 Ill. 489 (1860); Weber
v. Baird, 208 Ill. 209, 70 N. E. 231 (1904); Taylor v. Louisville & N. R. Co., 88
Fed. 350, 31 C. C. A. 537 (1898); Magnetic School of Healing v. McAnnulty,
187 U. S. 94, 23 Sup. Ct. 33, 47 L. Ed. 90 (1902); Noble v. Union River Log-
ging R. Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L Ed. 123 (1893); Bates & Guild
Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894 (1904); Reynolds v.
Schultz, 27 N. Y. Sup. Ct. 282 (1867).
Taxpayers' actions to restrain the illegal, corrupt, or wasteful expenditure
of public funds: Doolittle v. Supervisors of Broome County, 18 N. Y. 155
(1858), jurisdiction denied. Statute allowing such action: Laws N. Y. 1872,
C. 161, now Code Civ. Proc. § 1925. See Talcott v. Buffalo, 125 N. Y. 280, 26
N. E. 263 (1891); General Municipal Law N. Y. 1892, c. 685, § 3; Rev. Laws
Mass. C. 25, § 100.
Jurisdiction asserted: Colton v. Hanchett, 13 Ill. 615 (1852); New London
1. Brainard, 22 Conn. 552 (1853); Crampton v. Zabriskie, 101 U. S. 601, 25
L. Ed. 1070 (1879).
Actions in equity by public authorities to restrain violation of law by pri-
vate persons or corporations: Attorney General v. Gt. Northern R. Co., 1
Drew. & S. 154 (1860); Attorney General y. Railroad Companies, 35 Wis.
425 (1874); In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092 (1895);
Columbian Athletic Club v. State, 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727,
52 Am. St. Rep. 407 (1895); Com. ex rel. Pratt v. McGovern, 116 Ky. 212,
75 S. W. 261, 66 L. R. A. 280 (1903); State v. Uhrig, 14 Mo. App. 413 (1883);
State v. O'Leary, 155 Ind. 526, 58 N. E. 703 (1900); Taunton v. Taylor, 116
Mass. 254, pt. 5 (1874); Village of Waupun v. Moore, 34 Wis. 450, 17 Am.
Rep. 446 (1874); Mayor of Davenport Corporation v. Tozer, [1902] 2 Ch. 182;
Attorney General v. Ashborne Recreation Grounds Co., [1903] 1 Ch. 101; In-
habitants of Needham v. N. Y. & N. E. R. Co., 152 Mass. 61, 25 N. E. 20
(1890); Metropolitan City Ry. Co. v. Chicago, 96 Ill. 620 (1880).
General City Law of New York, § 223:
The city may maintain
an action in a court of competent jurisdiction to restrain by injunction the
violation of any ordinance of the common council or of the commissioner in
charge of the health department, notwithstanding that an ordinance may pro-
ride a penalty for its violation."
66 *
*
Ch.8)
423
ACTIONS FOR SPECIFIC RELIEF.
pany. The defendants move to dismiss the action, because the affida-
vits, motion, and alternative writ show that the state of Kansas has
no interest in the result of the action, and because it does not appear
from any of the proceedings that the railroad company have any right
to prosecute the action in the name of the state. It is admitted on the
part of the railroad company that the state has no interest in the result
of the action, and that the railroad' company have no right to prosecute
the action in the name of the state, or to use the name of the state as
plaintiff, unless they have such right by virtue of this being a proceed-
ing in mandamus, and by virtue of the railroad company being the
relator therein.
We think the motion to dismiss the action should be sustained. The
action of mandamus, as well as every other civil action, should under
the statutes of Kansas, where no special provision is otherwise made,
be brought and prosecuted in the name of the real party in interest.
State ex rel. Wells v. Marston, 6 Kan. 524, 532. It will be conceded
that this was not the rule with regard to mandamus at common law.
At common law the proceeding by mandamus was in no sense an action
by the relator. Neither the writ nor the return was in any case nor
in any sense a pleading. No issues of fact were raised by the writ and
the return. No trial could be had in the case, and no final judgment
could be rendered therein between the parties—the relator and the
respondent. The writ, whether alternative or peremptory, was merely
a writ, and nothing more. It was purely a prerogative writ, solely
within the discretion of the court (never a writ of right), and was
issued in the king's name, or in the name of the sovereign authority,
commanding some particular act to be done. The return was merely
an answer made by the respondent to the writ, stating that he had
performed the act, or giving some excuse or justification why he had
not performed it. It was never a pleading, and could never be tra-
versed or controverted by the relator, or by any one else, but was al-
ways taken as absolutely true, however false it might be in its state-
ments of fact.18 The only remedy that the relator had when he wished
to controvert the truth of the return was to institute a separate and
independent action on the case for a false return. In such an action
the relator became the plaintiff, the respondent became the defendant,
the proper pleadings were filed by the parties, the proper issues were
made up, the proper trial was had, and the proper judgment was ren-
dered in the action between the parties. If the judgment was for the
plaintiff, he recovered his damages and costs (Tidd's Practice, 949),
and the court then issued a peremptory writ of mandamus against the
defendant. If the judgment was for the defendant, he recovered his
costs.
*
*
18 See Bagg's Case, 11 Coke, 93b, 99 (1615): "If
they certify a
sufficient cause to remove him, but it is false, then the court cannot award a
writ to restore him, neither can any issue be taken thereupon, because the
parties are strangers, and have no day in court.”
424
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
The law of mandamus as hereinbefore stated, and the subsequent
action on the case for a supposed false return, was the law in Eng-
land down to the passage of the statute of 9 Anne, c. 20,19 which stat-
ute, together with the subsequent statutes passed in England regulat-
ing the proceeding by mandamus, form no part of the common law in
this country. K. P. Rly. Co. v. Nichols, Kennedy & Co., 9 Kan. 252,
12 Am. Rep. 494; Comp. Laws 1862, p. 678; Gen. St. 1868, p. 1127,
par. 3. For the common law of mandamus, see Bacon's Abr. “Man-
damus”; Comyn's Dig. “Mandamus"; Jacob's Law Dic. “Manda-
mus”; Stephen's Nisi Prius, "Mandamus.” But this old common-law
mode or procedure for mandamus has been materially changed by stat-
ute, not only in Kansas, but in nearly every other state, and in Eng-
land.
The present action of mandamus is not only the old common-law
proceeding of mandamus, but it is also the old common-law action on
the case for the false return. It is the two proceedings combined.
The alternative writ is now not merely a writ, as formerly, but it is
also a pleading. The return is not now merely a response to the writ,
as formerly (which return could not formerly be traversed or denied),
but it is also a pleading; and the facts therein stated may now be
controverted the same as they may on any other pleading. Issues are
now made up by the writ and the return. A trial may be had on such
issues, and judgment rendered for the plaintiff, or for the defendant,
the same as in any other civil action; and the action is now considered
almost as much an action of right as any other civil action. But little
now rests in the discretion of the court. Napier v. Poe, 12 Geo. 170,
178; Harrington v. Berkshire Co., 22 Pick. (Mass.) 263, 268, 33 Am.
Dec. 741. In fact, the proceeding by mandamus,is now under exist-
ing statutes nearly everywhere in England and America considered as
a civil action by and between the real parties thereto—the relator and
the respondent (Kendall v. Stokes, 3 How. 100, 11 L. Ed. 506; Ar-
berry v. Beaver, 6 Tex. 457, 464, 55 Am. Dec. 791; State ex rel. Wells
v. Marston, 6 Kan. 524, 532), who are denominated the plaintiff and
the defendant. See the reports of nearly all the states.
In the most of the states the action is now entitled by making the
relator the plaintiff, and the respondent the defendant, and the action
is prosecuted in the name of the relator as plaintiff, and not in the
name of the state, as formerly, if the reports of adjudicated cases are
correct. The states of Illinois, Michigan, New York, South Carolina,
Wisconsin, and possibly a few other states, constitute an exception to
the general practice of the present day. Our statutes everywhere
19 This statute applied only to mandamus proceedings for determining the
rights of offices and franchises in corporations and boroughs, at that time
the most common application of mandamus. It was extended to all other
cases by St. 1 Wm. IV, c. 21.
Ch.8)
425
ACTIONS FOR SPECIFIC RELIEF.
seem to recognize the present proceeding by mandamus as a civil ac-
tion, with the relator as the plaintiff, and the respondent as the de-
fendant.
*
* 20
STATE ex rel. COTHREN V. LEAN.
(Supreme Court of Wisconsin, 1859. 9 Wis. 279.)
PAINE, J.21 This was an application for a writ of mandamus, to
compel Joseph Lean, the register of deeds of Iowa county, to keep
his office at Mineral Point. An alternative writ was issued at the
last term, and on the return day counsel appeared on behalf of Lean,
and moved to quash the writ, for alleged defects in the petition on
which it was granted. This motion was argued in the absence of
the relator, but was not disposed of, and owing to the changes of
the judges composing this court a reargument was ordered.
At the present term the relator has filed a motion to strike from
the files the motion to quash, and also another motion for a per-
emptory writ. These three motions were argued together, and will
now be disposed of.
In support of the motion to strike off, it was urged that, after an
alternative writ of mandamus is once issued, the person to whom it is
directed can only make return according to its mandate, and cannot
be permitted to move to quash the writ, even for alleged defects in
20 The rest of the opinion is omitted.
Accord: People ex rel. Livingston v. Pacheco, 29 Cal. 210 (1863).
See State ex rel. Green Bay & M. R. R. Co. v. Jennings, 56 Wis. 113, 119, 14
N. W. 28 (1882): “It is true that at common law the words 'civil action
would not include writs of mandamus. Commonwealta v. Commissioners of
Lancaster, 6 Bin. (Pa.). 9; also Chinn v. Trustees, 32 Ohio St. 236, 237. Mr.
Bouvier says: 'The vital idea of an action is a proceeding on the part of one
person, as actor, against another, for the infringement of some right of the
first, before a court of justice, in the manner prescribed by the court or the
law. On the other hand, a mandamus, at the common law of England, was
denominated a prerogative writ, and was originally issued out of the Court
of Chancery, but subsequently out of the Court of King's Bench, because the
king originally sat in those courts in person, and aided in the administration
of justice. Hence, in theory at least, it was not so niuch the individual seek-
ing redress as the king who was the actor: In this country it cannot be il
prerogative writ; but, nevertheless, partakes of the nature of such a writ,
and under the Constitution and laws is issued by the courts. Attorney Gen-
eral v. Railroad Companies, 35 Wis. 512 et seq. Beyond question it is, how-
ever, in a proper case, in substance a civil remedy for the citizen wào has
been deprived of a clear legal right, notwithstanding it is commenced and
prosecuted in the name of the state. The state is only a nominal party.
Brower v. O'Brien, 2 Ind. 431; State v. Commissioners, 5 Ohio St. 502. The
word 'suit is frequently used in practice as synonymous with the words 'civil
action,' but, nevertheless, it seems to be more comprehensive, and includes
proceedings in chancery as well as law.
So it has been held to in-
clude proceedings by mandamus. McBane v. People, 50 Ill. 506, 507; Felts v.
Mayor, 2 Head (Tenn.) 650.
See Brown y. Crego, 29 Iowa, 321 (1870).
21 Only a portion of the opinion of Paine, J., is printed.
426
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
*
substance in the petition on which it was issued. But we are satis-
fied that as a matter of practice, in such cases, a motion to quash
is entirely proper. Alternative writs are usually granted without
much examination. The papers are read, and, if it appears clearly
that the petitioner is not entitled to the relief sought, the writ is re-
fused. Otherwise it has been usual to allow it to issue, leaving the
merits of the application to be determined when presented by those
familiar with them, and when both sides should be represented.
And this course is almost a necessity.
Applications for the writ are ex parte. The questions involved
are frequently complicated, and the solutions difficult. And it would
be impossible for the court to give them such examination that the
issuing of the writ should be held at all conclusive on the sufficiency
of the application. And a motion to quash is a proper mode of test-
ing that sufficiency. It performs the functions of a demurrer to a
declaration, and we think, if a writ should be issued on an applica-
tion defective in substance, the person to whom it was directed should
have some method of raising that question before being compelled to
answer: And the authorities cited by the counsel for the respondent
show that a motion to quash has been resorted to for that purpose,
both in this country and in England. We think the practice proper,
and the inotion to strike off must therefore be denied.22
The motion to quash the alternative writ is therefore denied. But
as we have held the filing of such a motion to be proper practice, to
test the sufficiency of the application, we think, when the motion
is overruled, the respondent should have further time to answer if
he desires it. If further time is desired, the respondent may answer
within twenty days, and the peremptory writ is denied. If no fur-
ther time to answer is desired the peremptory writ may issue.
PAINE, J. Since the former decision on the several motions then
pending, the respondent has filed a return, to which the relator has
demurred. On the argument the question was raised whether or
not the allegations in the petition, on which the writ was issued, which
are not denied by the return, are to be considered as true.
spondent's counsel contended that they were not, and that the return
is the primary pleading in the case, and that on a demurrer to that
nothing was to be taken as true except the allegations of the return
itself.
But we do not think this view correct. On the contrary, we are
satisfied, both from the reason of the thing and from the authorities
on the subject, that the affidavit or petition on which the alternative
writ issues, the allegations of which are incorporated into the writ
itself, performs the office of a declaration. It sets forth the grounds
relied on by the prosecutor, as entitling him to the peremptory writ,
and it is incumbent on the respondent, by his return, to sufficiently
answer those allegations, and negative the prosecutor's right. The
22 See Cyc. "Mandamus," p. 463.
The re-
Ch.8)
427
ACTIONS FOR SPECIFIC RELIEF.
function of the return is not simply to show what would amount to
a prima facie right in the respondent, in the absence of any allegation
to the contrary; but it is to show a right to refuse obedience to the
writ, in view of the allegations it contains. And if it does not do
this, it is demurrable. And the very object of a demurrer to the re-
turn is to test its sufficiency as an answer to the allegations of the
writ; and it is obvious that this can only be done by assuming all
the material allegations of the writ not denied, nor confessed and
avoided, to be true.
The plea or answer which the plaintiff may put in to the return is
designed to enable him to traverse or confess and avoid it, when it,
in the first instance, sufficiently answers the writ, and not to repeat
material allegations previously made, which had been left entirely
unanswered, in order to obtain the benefit of them.
We think, therefore, that the demurrer to the return raises the
question of its sufficiency, and of the sufficiency of the relation, and
that in disposing of it, not only the return, but every material al-
legation in the relation not denied nor confessed and avoided, is to
be taken as true.
* 23
SECTION 49.--SAME-THE RETURN
PEOPLE ex rel. AMERICAN CENT. RY. v. SUPERVISOR AND
TOWN CLERK OF OHIO GROVE TP., MER-
CER COUNTY.
(Supreme Court of Illinois, 1869. 51 Ill. 191.)
*
*
WALKER, J.24 * The demurrer questions the sufficiency of
the return as a defense to the prayer of the information. The alter-
native writ stands for a declaration, and the return as a plea. Like
other pleas, it must state facts positively and distinctly. The return
should set out the facts fully, so as to enable the relator to traverse
them. It is not sufficient to aver conclusions of law. If facts are
not stated, or if insufficiently stated, the plea will be held bad. Great-
er certainty is required in a return than in an ordinary plea in bar.
Tapping on Mandamus, 352, 370; Moses on Mandamus, 210. In
the case of People v. Kilduff, 15 Ill. 492, 60 Am. Dec. 769, it was
held that every intendment would be made against returns which do
not answer important facts.
23 See Cyc. "Mandamus," p. 453.
24 Only a portion of the opinion of Walker, J., is printed.
428
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
The return does not deny, and we must hold it to be true, that an
election was held, judges and clerks appointed, and the majority of
the votes cast were in favor of subscription. It does not deny that
the proper requisition for an election was made, or that notices were
given ten days before the election. It, however, avers that the elec-
tion was not called, held and conducted according to the requirements
of the act of 1859, in this: That there were no legal notices posted
for the election ten days previous thereto, as required by the act, nor
were judges and clerks legally appointed to hold the election. There
is no effort to specify in what the notices lacked to conform to the
legal requirement, or in what the appointment of such officers vio-
lated the law or failed to conform to its requirements. From what
is averred in reference to these acts, the facts are not stated so that
the court can determine whether they are sufficient. In this the
pleader has only averred his conclusion as to the illegality of the acts
thus set up and relied upon to prevent the peremptory writ from is-
suing. The return should have specified the particular facts which
rendered the notices illegal and the acts omitted in appointing the
judges and clerks.
*
* 25
SECTION 50.-SAME-INTEREST REQUIRED TO BE
SHOWN
Y
PIKE COUNTY COM’RS V. PEOPLE ex rel. METZ.
(Supreme Court of Illinois, 1819. 11 Ill. 202.)
This was a proceeding by: mandamus in the Pike county circuit
court, instituted by the relator against the county commissioners of
that county, to compel the payment to him of the sum of $125, and
interest, which had been originally appropriated by the Legislature
to the county, and by a subsequent law set apart for the improvement
of the navigation of McKee's creek, in said county, to be expended
by the relator.
TREAT, C. J. 28 It is contended that the relator has not such an
interest in the fund sought to be recovered as will authorize him to
prosecute this peculiar remedy. The question, who shall be the re-
lator, in an application for a mandamus, depends upon the object to be
attained by the writ. Where the remedy is resorted to for the pur-
pose of enforcing a private right, the person interested in having the
25 See Commonwealth ex rel. Thomas V. Alleglany County, 37 Pa. 277
(1860).
26 Only a portion of this case is printed.
Ch. 8)
429
ACTIONS FOR SPECIFIC RELIEF.
right enforced must become the relator. He is considered as the
real party, and his right to the relief demanded must clearly appear.
A stranger is not permitted officiously to interfere, and sue out a
mandamus in a matter of private concern. But where the object is
the enforcement of a public right, the people are regarded as the
real party, and the relator need not show that he is interested, as a
citizen, in having the laws executed, and the right in question en-
forced. See the case of People v. Collins, 19 Wend. (N. Y.) 56,
where this question is much discussed, and the foregoing conclusions
are clearly stated. No doubt is entertained of the right of Metz to
become the relator, and pursue this remedy. The object of the suit
is not a matter of individual interest, but of public concern. Any
citizen of the county, especially of the locality interested in having
the improvement prosecuted, could become the relator, and obtain
the mandamus. There is a manifest propriety in permitting Metz to
give the information, and conduct the proceeding. He has the direc-
tion of the improvement, and the money, when received, is to pass
into his hands, and be disbursed by him.
*
PEOPLE ex rel. DRAKE V. REGENTS OF UNIVERSITY OF
MICHIGAN.
(Supreme Court of Michigan, 1856. 4 Mich. 98.)
This was an application by the relator, who was a private citizen
of this state, for an alternative mandamus against the Regents of
the University of Michigan, founded upon his affidavit, which set
forth that he was a citizen of this state, that there was, at the time of
filing his affidavit, no Professor of Homeopathy in the Department
of Medicine of the University, that the Regents, whose duty it was,
had not only neglected and refused (although often requested there-
to) to elect such Professor, but still neglected and refused so to do.
The law, upon which the application was founded (Sess. Laws
1856, p. 234), provides: "That the Regents shall have power to en-
act ordinances, by-laws, and regulations for the government of the
University, to elect a President, to fix, increase and reduce the reg-
ular number of Professors and tutors, and to appoint the same, and
to determine the amount of their salaries: Provided, there shall al-
ways be, at least, one Professor of Homeopathy in the Department
of Medicine.'
WING, J.27 The first objection is predicated upon the alleged in-
capacity of an individual citizen, who is only interested in common
with all other citizens of the state in the subject-matter of complaint,
to institute a proceeding of this kind against a public corporation,
27 Only a portion of the opinion is printed.
430
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
sustaining the relations which the University of Michigan does to this
state.
It is alleged that, where there is a cause of complaint against a
public body or corporation, it is the duty of the Attorney General of
the state to move against them, and that it would be peculiarly fit, in
a matter of complaint of so grave a character as that presented by
the affidavit of the relator, that it should be presented by, or be under
the control and sanction of, that officer, whose duty it is to act in
all such cases. To this it is answered by the counsel of the relator,
in substance, that though true it is the matter in question is one
that interests the citizens generally, yet the right of every citizen
of the state to move in the proper courts in a matter in which the
citizens at large are concerned, and in respect to which there is
ground of complaint against a public body or officers of this state
that they have neglected the performance of some duty imposed upon
them by law, is fully sustained both by principle and authority.
Upon examination of the authorities cited by the counsel of the re-
spective parties, we find no case decided by the English courts which
sanctions this action of their courts on an application of this char-
acter, upon the sole motion of a private citizen of the realm. From
this it is, we think, to be inferred that the practice was never sanc-
tioned by their courts.
On looking into the American authorities cited, we find that the
Supreme Court of New York have taken the broad ground in the
case of People v. Collins, 19 Wend. 64, and in People v. Tracy, 1
Denio, 618, that in all cases requiring redress, and involving a mat-
ter in which the interests of the public at large are concerned, and in
respect to which a mandamus is the proper remedy, it is competent for
their courts to act upon the relation and motion of a private citizen
of the state. The doctrine of those cases was approved and followed
by the Supreme Court of Illinois in the case of County of Pike v.
State, 11 I11. 202. These are the only cases to which we have been
cited, or which have fallen under our observation, which sanction
the right claimed by the relator in this case.
To these authorities, as we have said, is opposed the fact that
the English courts, which have moulded and formed the common
law, transmitted it to us, and which govern both them and us, have
not sustained a course of proceeding like this. The courts of
Maine, Massachusetts and Pennsylvania have maintained a doctrine
on this subject opposed to the New York and Illinois cases, and have
held that, to entitle an individual citizen to be heard as a relator and
on his own motion, he must show that he has some individual in-
terest in the subject-matter of complaint which is not common to all
the citizens of the state; and whilst we do not intend to say that a
case may not arise in which this court would allow an individual to
file such a complaint, particularly if the Attorney General or prose-
cuting attorney (as the case may be) were absent, or refused to act
Ch. 8)
431
ACTIONS FOR SPECIFIC RELIEF.
without good cause, we nevertheless express our conviction that this
is a case in which the action of the Attorney General would have been
proper and necessary.
*
* 28
SECTION 51.–MANDAMUS AGAINST BOARD OR PUBLIC
CORPORATION
COMMISSIONERS V. SELLEW.
*
(Supreme Court of the United States, 1878. 99 U. S. 624, 25 L. Ed. 333.)
,
WAITE, C. J.20
In United States v. Boutwell, 17 Wall.
604, 21 L. Ed. 721, it was decided that, as a mandamus was used
"to compel the performance of a duty resting upon the person to
whom the writ is sent," if directed to a public officer, it abated on his
death or his retirement from office, because it could not reach the of-
fice. That principle does not, as we think, apply to this case.
There
the officer proceeded against was the Secretary of the Treasury
of the United States, and the writ was "aimed exclusively against
him as a person.” Here the writ is sent against the board of county
commissioners, a corporation created and organized for the express
purpose of perforining the duty, among others, which the relator
seeks to have enforced. The alternative writ was directed both to
the board in its corporate capacity and to the individual members by
name, but the peremptory writ was ordered against the corporation
alone. As the corporation can only act through its agents, the courts
will operate upon the agents through the corporation. When a copy
of the writ which has been ordered is served upon the clerk of the
board, it will be served on the corporation, and be equivalent to a
command that the persons who may be members of the board shall
do what is required. If the members fail to obey, those guilty of
disobedience may, if necessary, be punished for the contempt. Al-
though the command is in form to the board, it may be enforced
against those through whom alone it can be obeyed. One of the ob-
jects in creating such corporations, capable of suing and being sued,
and having perpetual succession, is that the very inconvenience which
manifested itself in Boutwell's Case may be avoided. In this way
the office can be reached and the officer compelled to perform its
duties, no matter what changes are made in the agents by whom the
officer acts. The board is in effect the officer, and the members of
28 See an article by Prof. F. J. Goodnow on “Interest in Mandamus Cases,”
Political Science Quarterly, VIII, p. 48.
29 Only a portion of the opinion of Waite, C. J., is printed.
432
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
the board are but the agents who perform its duties. While the
board is proceeded against in its corporate capacity, the individual
members are punished in their natural capacities for failure to do
what the law requires of them as the representatives of the corpo-
ration.
We think, therefore, that the peremptory writ was properly di-
rected to the board in its corporate capacity. In this way the power
of the writ is retained until the thing is done which is commanded,
and it may at all times be enforced, through those who are for the
time being charged with the obligation of acting for the corporation.
If in the course of the proceedings it appears that a part of the mem-
bers have done all they could to obey the writ, the court will take
care that only those who are actually guilty of disobedience are
made to suffer for the wrong that is done. Those who are members
of the board at the time when the board is required to act will be
the parties to whom the court will look for the performance of what
is demanded. As the corporation cannot die or retire from the office
it holds, the writ cannot abate as it did in Boutwell's Case. The de-
cisions in the state courts in which this practice is sustained are
numerous.
Maddox v. Graham, 2 Metc. (Ky.) 56; State ex rel.
Soutter v. City of Madison, 15 Wis. 30; Pegram v. Commissioners
of Cleaveland County, 65 N. C. 114; People v. Collins, 19 Wend.
(N. Y.) 56.
1
*
* 30
SECTION 52.-REFUSAL TO OBEY MANDAMUS
AMY v. SUPERVISORS.
(Supreme Court of the United States, 1870. 11 Wall. 136, 20 L. Ed. 101.)
Any having obtained a judgment for money against Des Moines
'County, Iowa, in the Circuit Court for the District of Iowa, and not
"being paid, procured from the same court a mandamus against Burk-
holder and several others, the supervisors of the county, to compel
the levy of a tax. Tlie mandamus not being obeyed, he sued them
personally. They set up certain defenses, to which he demurred. The
court overruled the demurrer, and he brought the case here.
SWAYNE, J.31
The rule is well settled that where the
law requires absolutely a ministerial act to be done by a public officer,
and he neglects or refuses to do such act, he may be compelled to re-
spond in damages to the extent of the injury arising from his conduct.
There is an unbroken current of authorities to this effect. A mistake
30 See, also, City of Ottawa v. People, 48 Ill. 233 (1868).
31 Only a portion of the opinion of Swayne, J., is printed.
Ch.8)
433
ACTIONS FOR SPECIFIC RELIEF.
as to his duty and honest intentions will not excuse the offender.
The question of the rule by which the measure of damages is to be
ascertained is not before us, and we do not feel called upon to ex-
press any opinion upon the subject.
The defenses set up in the answer of the defendants are clearly
bad. The demurrer should have been sustained. * * * 32
SECTION 53.—PROVINCE OF THE WRIT OF MANDAMUS
HASSEL'S CASE.
(Court of King's Bench, 1719. 1 Str. 211.)
Fazakerley moved for a mandamus to be directed to the justices
of peace of the county of Chester, commanding them to make a rate
to reimburse one Hassel the money he had expended as surveyor of
the highways. And it was granted.
JOHN GILES' CASE.
(Court of King's Bench, 1731. 2 Str. 881.)
Mr. Reeve moved for a mandamus to the justices of the city of
Worcester, to grant a license to Giles to keep an alehouse, insisting
that, it being within a city, St. Geo. II, c. 28, did not extend to it.
Strange, contra, insisted that it was discretionary in the justices,
and cited Stephens v. Watson, 1 Salk. 45, that no appeal lies from the
denial of a license, 33 and if the owner be committed, the want of a
license can only come in question, and not the reason why it was
denied.
Et Per CURIAM. There never was an instance of such a manda-
mus, and therefore we will not grant it.
32 Disobedience to the writ of mandamus constitutes contempt of court,
and is punishable by fine and imprisonment. Cyc. “Mandamus," p. 499.
33 "It was said by Mr. Nares in the case of Rex. y. Young and Pitts, Esq.,
B. R. 20th April, 1758, that the sole reason why the justices of the peace re-
fused the license in this case was because Giles had signed a petition to erect
a workhouse, and though the refusal was so ill founded, yet the mandamus
was denied. MSS. See, also, the report of that case. 1 Burr, 556. (Note by
Reporter.)
FR.ADM. LAW-28
434
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
KING v. BISHOP OF LITCHFIELD.
*
*
*
(Court of King's Bench, 1734. 7 Mod. 217.)
Mandamus to Bishop to license a person elected usher to a gran-
mar school.
Lord HARDWICKE, Chief Justice.34
If the bishop here
acts judicially, a mandamus lies not to compel him to grant a license,
but only to determine the one way or the other; as we often grant
them to give sentence, generally, without directing them what sentence
to give, so to give judgment in inferior courts; but if he acts minis-
terially, and it appears to us that the person applying for a mandamus
is qualified for the office he prays to be admitted to, then a manda-
mus goes requiring his admission. I should doubt whether he acts
in a judicial capacity in this place.
*
* 35
KENDALL v. UNITED STATES ex rel. STOKES.
(Supreme Court of United States, 1838. 12 Pet. 524, 9 L. Ed. 1181.)
Error to the Circuit Court of the District of Columbia.
The Circuit Court had ordered a peremptory mandamus, to be di-
rected against the Postmaster General, to be issued. The Postmaster
General prosecuted this writ of error.
THOMPSON, Justice, delivered the opinion of the court.3 6
This case comes up on a writ of error from the Circuit Court of
the United States for the District of Columbia, sitting for the county
of Washington. This case was brought before the court below by
petition setting out certain contracts made between the relators and
the late Postmaster General, upon which they claimed certain credits
and allowances upon their contracts for the transportation of the mail;
that credits and allowances were duly made by the late Postmaster
General; that the present Postmaster General, when he came into of-
fice, re-examined the contracts entered into with his predecessor, and
the allowances made by him, and the credits and payments which had
been made, and directed that the allowances and credits should be
withdrawn, and the relators recharged with divers payments they had
received; that the relators presented a memorial to Congress on the
subject, upon which a law was passed on the 21st of July, 1836, for
their relief, by which the Solicitor of the Treasury was authorized
and directed to settle and adjust the claims of the relators for extra
services performed by them, to inquire into and determine the equity
34 Only a portion of the opinion by Lord Hardwicke is printed.
35 See Rex v. Askew, 4 Burr. 2189 (1768); Rex v. Archbishop of Canter-
bury, 15 East, 142 (1812).
30 Only a portion of this case is here printed.
Ch. 8)
435
ACTIONS FOR SPECIFIC RELIEF.
of such claims, and to make the relators such allowances therefor as,
upon full examination of all the evidence, may seem right, according
to the principles of equity; and that the Postmaster General be and
he is hereby directed to credit the relators with whatever sum or
sums of money, if any, the Solicitor shall so decide to be due to them,
for and on account of any such service or contract. And the petition
further sets out that the Solicitor, Virgil Maxey, assumed upon him-
self the performance of the duty and authority created and conferred
upon him by the law, and did make out and communicate his decision
and award to the Postmaster General, by which award and decision
the relators were allowed $161,563.89; that the Postmaster General, on
being notified of the award, only so far obeyed and carried into exe-
cution the act of Congress as to direct, and cause to be carried to the
credit of the relators, the sum of $122,102.46; but that he has and
still does refuse and neglect to credit the relators with the residue of
the sum so awarded by the solicitor, amounting to $39,462.43. And
the petition prayed the court, to award a mandamus, directed to the
Postmaster General, commanding him fully to comply with, obey and
execute the said act of Congress, by crediting the relators with the
full and entire sum awarded in their favor by the Solicitor of the
Treasury. Such proceedings were afterwards had in the case that
a peremptory mandamus was ordered, commanding the said Amos
Kendall, Postmaster General, forthwith to credit the relators with the
full amount awarded and decided by the Solicitor of the Treasury to
be due to the relators.
The questions arising upon this case may be considered under two
general inquiries: (1) Does the record present a proper case for a
mandamus? And if so, then (2) had the Circuit Court of this Dis-
trict jurisdiction of the case, and authority to issue the writ?
Under the first head of inquiry, it has been considered by the coun-
sel on the part of the Postmaster General that this is a proceeding
against him to enforce the performance of an official duty. And the
proceeding has been treated as an infringement upon the executive
department of the government, which has led to a very extended
range of argument on the independence and duties of that depart-
ment, but which, according to the view taken by the court of the case,
is entirely misapplied. We do not think the proceedings in this case
interfere, in any respect whatever, with the rights or duties of the
executive; or that it involves any conflict of powers between the ex-
ecutive and judicial departments of the government. The mandamus
does not seek to direct or control the Postmaster General in the dis-
charge of any official duty, partaking in any respect of an executive
character, but to enforce the performance of a mere ministerial act,
which neither he nor the President had any authority to deny or
control
We shall not, therefore, enter into any particular examination of
the line to be drawn between the powers of the executive and judi-
436
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
cial departments of the governinent. The theory of the Constitution
undoubtedly is that the great powers of the government are divided
into separate departments; and so far as these powers are derived
from the Constitution, the departments may be regarded as independ-
ent of each other. But, beyond that, all are subject to regulations by
law touching the discharge of the duties required to be performed.
The executive power is vested in a President; and so far as his
powers are derived from the Constitution, he is beyond the reach of
any other department, except in the mode prescribed by the Constitu-
tion through the impeaching power. But it by no means follows that
every officer in every branch of that department is under the exclu-
sive direction of the President. Such a principle, we apprehend, is
not and certainly cannot be claimed by the President. There are cer-
tain political duties imposed upon many officers in the executive de-
partment, the discharge of which is under the direction of the Presi-
dent. But it would be an alarming doctrine that Congress cannot
impose upon any executive officer any duty they may think proper,
which is not repugnant to any rights secured and protected by the
Constitution; and in such cases the duty and responsibility grow out
of and are subject to the control of the law, and not to the direction
of the President. And this is einpliatically the case, where the duty
enjoined is of a mere ministerial character.
Under this law, the Postmaster General is vested with no discre-
tion or control over the decisions of the Solicitor; nor is any appeal
or review of that decision provided for by the act. The terms of the
submission was a matter resting entirely in the discretion of Con-
gress; and if they thought proper to vest such a power in any one,
and especially as the arbitrator was an officer of the government, it
clid not rest with the Postmaster General to control Congress, or the
Solicitor, in that affair.
It was urged at the bar that the Postmaster General was alone sub-
ject 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 Constitution to take care that the laws be faithfully
executed. This is a doctrine that cannot receive the sanction of this
court. It would be vesting in the President a dispensing power,
which has no countenance for its support in any part of the Consti-
tution, and is asserting a principle which, if carried out in its results
to all cases falling within it, would be clothing the President with a
power entirely to control the legislation of Congress, and paralyze the
administration of justice.37
To contend that the obligation imposed on the President to see the
laws faithfully executed implies a power to forbid their execution
*
37 See Bayard v. United States ex rel. White, 127 U. S. 246, 8 Sup. Ct. 1223,
32 L. Ed. 116 (1888), last paragraph.
Ch.8)
437
ACTIONS FOR SPECIFIC RELIEF.
is a novel construction of the Constitution, and entirely inadmissible.
But although the argument necessarily leads to such a result, we do
not perceive from the case that any such power has been claimed by
the President. But, on the contrary, it is fairly to be inferred that
such power was disclaimed. He did not forbid or advise the Post-
master General to abstain from executing the law, and giving the
credit thereby required, but submitted the matter in a message to
Congress.
The right of the relators to the benefit of the award ought now to
be considered as irreversibly established; and the question is, whether
they have any, and what, remedy? The act required by the law to be
done by the Postmaster General is simply to credit the relators with
the full amount of the award of the Solicitor. This is a precise, defi-
nite act, purely ministerial, and about which the Postmaster General
had no discretion whatever. The law, upon its face, shows the exist-
ence of accounts between the relators and the Post Office Department.
No money was required to be paid, and none could have been drawn
out of the treasury, without further legislative provision, if this credit
should overbalance the debit standing against the relators. But this
was a matter with which the Postmaster General had no concern. He
was not called upon to furnish the means of paying such balance, if
any should be found; he was simply required to give the credit.
This was not an official act in any other sense than being a transac-
tion in the department where the books and accounts were kept, and
was an official act in the same sense that an entry in the minutes of a
court, pursuant to an order of the court, is an official act. There is
no room for the exercise of any discretion, official or otherwise. A11
that is shut out by the direct and positive command of the law, and
the act required to be done is, in every just sense, a mere ministerial
act.
And in this view of the case, the question arises, is the remedy by
mandamus the fit and appropriate remedy? The common law, as it
was in force in Maryland, when the cession was made, remained in
force in this District. We must, therefore, consider this writ as it
was understood at the common law, with respect to its object and
purpose, and varying only in the form required by the different char-
acter of our government. It is a writ, in England, issuing out of
the King's Bench, in the name of the king, and is called a preroga-
tive writ, but considered a writ of right; 38 and is directed to some
person, corporation or inferior court, requiring them to do some par-
ticular thing, therein specified, which appertains to their office or
duty, and which is supposed to be consonant to right and justice, and
where there is no other adequate specific remedy. Such a writ, and
for such a purpose, would seem to be peculiarly appropriate to the
38 See People ex rel. etc., v. Common Council, etc., 78 N. Y. 56, 61 (1879),
post, p. 500.
438
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NELIEF AGAINST ADMINISTRATIVE ACTION.
present case. The right claimed is just and established by positive
law; and the duty required to be performed. is clear and specific, and
there is no other adequate remedy,
The remedies suggested at the bar were, then, an application to
Congress, removal of the Postmaster General from office, and an ac-
tion against him for damages. The first has been tried and failed.
The second might not afford any certain relief, for his successors
might withhold the credit in the same manner; and, besides, such
extraordinary measures are not the remedies spoken of in the law
which will supersede the right of resorting to a mandamus; and it
is seldom that a private action at law will afford an adequate remedy.
If the denial of the right be considered as a continuing injury, to be
redressed by a series of successive actions, as long as the right is de-
nied, it would avail nothing, and never furnish a complete remedy.
Or, if the whole amount of the award claimed should be considered
the measure of damages, it might, and generally would, be an inade-
quate remedy, where the damages were large. The language of this
court, in the case of Osborn v. United States Bank, 9 Wheat. 844, 6
L. Ed. 204, is that the remedy by action in such cases would have
nothing real in it. It would be a remedy in name only, and not in
substance, especially where the amount of damages is beyond the ca-
pacity of a party to pay.
That the proceeding on a mandamus is a case within the meaning
of the act of Congress has been too often recognized in this court
to require any particular notice. It is an action or suit brought in
a court of justice, asserting a right, and is prosecuted according to
the forms of judicial proceedings.
30
DECATUR v. PAULDING.
(Supreme Court of the United States, 1840. 14 Pet. 497, 10 L. Ed. 559.)
TANEY, C. J., delivered the opinion of the court.
This case is brought here by a writ of error from the judgment of
the Circuit Court of the United States for the District of Columbia,
refusing to award a peremptory mandamus. The material facts in
the case are as follows:
By an act of Congress, passed on the 3d of March, 1837, the widow
of an officer who died in the naval service became entitled to re-
ceive out of the navy pension fund half the monthly pay to which
the deceased officer would have been entitled under the acts reg-
38 For latter part of opinion, see post, p. 454.
Stokes subsequently brought an action for damages against Kendall, but
it was held that the refusal to credit the amount in question did not consti-
tute an actionable wrong; also that the plaintiff could not resort both to
mandamus and to an action for damages. Kendall v. Stokes, 3 How. 87, 11
L. Ed. 506 (1845).
Ch. 8)
439
ACTIONS FOR SPECIFIC RELIEF.
ulating the pay of the navy in force on the 1st day of January, 1835;
the half pay to commence from the time of the death of such officer,
and upon the death or intermarriage of such widow, to go to the
child or children of the officer. On the same day, the following
resolution was passed by Congress:
“No. 2. Resolution granting a pension to Susan Decatur, widow of
the late Stephen Decatur.
"Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, that Mrs. Susan
Decatur, widow of the late Commodore Stephen Decatur, be paid
from the navy pension fund a pension, for five years, commencing
from the 30th day of June, 1834, in conformity with the provisions
of the act concerning naval pensions and the navy pension fund,
passed the 30th of June, 1834, and that she be allowed, from said fund,
the arrearages of the half pay of a post captain, from the death of
Commodore Decatur, to the 30th of June, 1834, together with the
pension hereby allowed her, and tliat the arrearage of said pension
be vested in the Secretary of the Treasury, in trust for the use of
the said Susan Decatur: Provided that the said pension shall cease
on the death or marriage of the said Susan Decatur.
"Approved, March 3, 1837."
By the act of Congress of July 10, 1832, the Secretary of the Navy
is constituted the trustee of the navy pension fund, and as such it
is made his duty to grant and pay the pensions, according to the
terms of the acts of Congress.
After the passage of the law and resolution of March 3, 1837,
Mrs. Susan Decatur, the widow of Commodore Decatur, applied to
Mahlon Dickerson, then Secretary of the Navy, to be allowed the
half pay to which she was entitled under the general law above men-
tioned, and also the pension and arrearages of half pay specially pro-
vided for her by the resolution passed on the same day. The Sec-
retary of the Navy, it appears, doubted whether she was entitled to
both, and referred the matter to the Attorney General, who gave it
as his opinion that Mrs. Decatur was not entitled to both, but that
she might take under either, at her election. The Secretary there-
upon informed her of the opinion of the Attorney General, offering
at the same time to pay her under the law, or the resolution, as she
might prefer. Mrs. Decatur elected to receive under the law; but
it is admitted by the counsel on both sides that she did not ac-
quiesce in this decision, but protested against it, and by consenting to
receive the amount paid her she did not mean to waive any right
she might have to the residue.
Some time afterwards Mr. Dickerson retired from the office of
Secretary of the Navy, and was succeeded by Mr. Paulding, the de-
fendant in this writ of error; and in the fall of 1838 Mrs. Decatur
applied to him to revise the decision of his predecessor, and to allow
her the pension provided by the resolution. The Secretary declined
440
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
а.
doing so, whereupon Mrs. Decatur applied to the circuit court for
Washington county, in the District of Columbia, for a mandamus to
compel him to pay the amount she supposed to be due to her. A
rule to show cause was granted by the court; and upon a return
made by him, stating, among other things, the facts above mentioned,
the court refused the application for a peremptory mandamus. It
is this decision we are now called on to revise.
In the case of Kendall v. United States, 12 Pet. 524, 9 L. Ed.
1181, it was decided in this court that the circuit court for Washing-
ton county, in the District of Columbia, has the power to issue a
mandamus to an officer of the federal government, commanding him
to do a ministerial act. The first question, therefore, to be consid-
ered in this case, is whether the duty imposed upon the Secretary
of the Navy, by the resolution in favor of Mrs. Decatur, was
mere ministerial act. The duty required by the resolution was to
be performed by him, as the head of one of the executive depart-
ments of the government, in the ordinary discharge of his official
duties. In general, such duties, whether imposed by act of Con-
gress or by resolution, are not mere ministerial duties. The head of
an executive department of the government, in the administration of
the various and important concerns of his office, is continually re-
quired to exercise judgment and discretion. He must exercise his
judgment in expounding the laws and resolutions of Congress, under
which he is, from time to time, required to act. If he doubts, he has
a right to call on the Attorney General to assist him with his coun-
sel; and it would be difficult to imagine why a legal adviser was
provided by law for the heads of departments, as well as for the
President, unless their duties were regarded as executive, in which
judgment and discretion was to be exercised.
If a suit should come before this court, which involved the construc-
tion of any of these laws, the court certainly would not be bound to
adopt the construction given by the head of a department. And if
they supposed his decision to be wrong, they would, of course, so
pronounce their judgment. But their judgment upon the construc-
tion of a law must be given in a case in which they have jurisdiction,
and in which it is their duty to interpret the act of Congress, in or-
der to ascertain the rights of the parties in the cause before them.
The court could not entertain an appeal from the decision of one
of the Secretaries nor revise his judgment in any case, where the
law authorized him to exercise discretion or judgment. Nor can
it, by mandamus, act directly upon the officer, and guide and control
his judgment or discretion in the matters committed to his care, in the
ordinary discharge of his official duties.
The case before us illustrates these principles, and shows the dif-
ference between executive duties and ministerial acts. The claim
of Mrs. Decatur having been acted upon by his predecessor in office,
the Secretary was obliged to determine whether it was proper to re-
Ch.8)
441
ACTIONS FOR SPECIFIC RELIEF.
vise that decision. If he had determined to revise it, he must have
exercised his judgment upon the construction of the law and the
resolution, and have made up his mind whether she was entitled un-
der one only, or under both. And if he determined that she was
entitled under the resolution as well as the law, he must then have
again exercised his judgment, in deciding whether the half pay al-
lowed her was to be calculated by the pay proper, or the pay and
emoluments of an officer of the commodore's rank. And after all
this was done, he must have inquired into the condition of the navy
pension fund, and the claims upon it, in order to ascertain whether
there was money enough to pay all the demands upon it, and if not
money enough, how it was to be apportioned among the parties en-
titled. A resolution of Congress, requiring the exercise of so much
judgment and investigation, can, with no propriety, be said to com-
mand a mere minsterial act to be done by the Secretary.
The interference of the courts with the performance of the ordi-
nary duties of the executive departments of the government would
be productive of nothing but mischief, and we are quite satisfied
that such a power was never intended to be given to them. Upon
the very subject before us, the interposition of the courts might
throw the pension fund and the whole subject of pensions into the
greatest confusion and disorder. It is understood, from the Secre-
tary's return to the mandamus, that in allowing the half pay it has
always been calculated by the pay proper, and that the rations or
emoluments to which the officer was entitled have never been brought
into the calculation. Suppose the court had deemed the act required
by the resolution in question a fit subject for a mandamus, and, in
expounding it, had determined that the rations and emoluments of
the officer were to be considered in calculating the half pay. We
can readily imagine the confusion and disorder into which such a
decision would throw the whole subject of pensions and half pay,
which now forms so large a portion of the annual expenditure of the
government, and is distributed among such a multitude of individuals.
The doctrines which this court now hold in relation to the executive
department of the government are the same that were distinctly
announced in the case of Kendall v. United States, 12 Pet. 524, 3
L. Ed. 1181. In opinion the court say [12 Pet. 610): "We do not
think the proceeding in this case interferes, in any respect whatever,
with the rights or duties of the executive, or that it involves any
conflict of powers between the executive and judicial departments of
the government. The mandamus does not seek to direct or control
the Postmaster General in the discharge of any official duty, partaking
in any respect of an executive character, but to enforce the perform-
ance of a mere ministerial act, which neither he nor the President
had any authority to deny or control.” And (12 Pet. 614] the
court still more strongly state the mere ministerial character of the
act required to be done in that case, and distinguish it from official
442
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
acts of the head of a department, where judgment and discretion are
to be exercised. The court there say: "He was simply required to
give the credit. This was not an official act in any other sense than
being a transaction in the department where the books and accounts
were kept, and was an official act in the same sense that an entry in
the minutes of a court, pursuant to an order of the court, is an of-
ficial act. There is no room for the exercise of any discretion, of-
ficial or otherwise. All that is shut out by the direct or positive
command of the law, and the act required to be done is, in every
just sense, a mere ministerial act.”'
We have referred to these passages in the opinion given by the
court in the case of Kendall v. United States, in order to show more
clearly the distinction taken between a inere ministerial act, required
to be done by the head of an executive department, and a duty im-
posed upon him in his official character as the head of such depart-
ment, in which judgment and discretion are to be exercised. There
was in that case a difference of opinion in the court in relation to the
power of the circuit court to issue the mandamus. But there was no
difference of opinion respecting the act to be done. The court were
unanimously of opinion that in its character the act was merely min-
isterial. In the case before us it is clearly otherwise. The resolution
in favor of Mrs. Decatur imposed a duty on the Secretary of the
Navy, which required the exercise of judgment and discretion; and
in such a case, the circuit court had no right, by mandamus, to control
his judgment, and guide him in the exercise of a discretion which
the law had confided to him.
We are, therefore, of opinion that the circuit court were not au-
thorized by law to issue the mandamus, and committed no error in
refusing it. And as we have no jurisdiction over the acts of the
Secretary in this respect, we forbear to express any opinion upon
the construction of the resolution in question. The judgment of
the circuit court, refusing to award a peremptory mandamus, must
be affirmed. 40
40 "The construction of a statute is not a ministerial act; it is the exercise
of judgment. If it is the duty of the defendant to admit or not to admit the
plaintiff to do business in this state, according to the interpretation to be put
on the insurance statutes, then the admitting or refusing to admit involves
the exercise of discretion and judgment.
It is not a purely minis-
terial act and a mandamus ought not to issue." American Casualty Ins. Co.
V. Fyler, 60 Conn. 448, 462, 22 Atl. 494, 25 Am. St. Rep. 337 (1891).
•Every statute to some extent requires construction by the public officer
whose duties may be defined therein. Such officer must read the law, and he
must therefore, in a certain sense, construe it, in order to form a judgment
from its language what duty he is directed by the statute to perform. But
that does not necessarily and in all cases make the duty of the officer any-
thing other than a purely ministerial one. If the law direct him to perform
an act in regard to which no discretion is committed to him, and which, upon
the facts existing, he is bound to perform, then that act is ministerial, al-
though depending upon a statute which requires, in some degree, a construc-
tion of its language by the officer. Unless this be so, the value of this writ
(i. e., the writ of mandamus] is very greatly impaired. Every executive of-
Ch.8)
443
ACTIONS FOR SPECIFIC RELIEF.
PEOPLE ex rel. BAILEY v. BOARD OF SUPERVISORS OF
GREENE COUNTY.
(Supreme Court of New York, 1851.
12 Barb. 217.)
HARRIS, J.41
The board of canvassers illegally and un-
justly omitted to count the votes of the Third election district of the
town of Catskill. The relator had a legal right to have these votes
counted. The board, therefore, omitted to do an act which they
ought to have done. There has been an omission to perform an of-
ficial duty. For this omission the relator ought to have a remedy;
and if no other remedy exists, and the parties to whom the writ is
directed can yet perform the duty, he is entitled to a mandamus. If,
on the other hand, the defendants cannot now perform that duty,
even though they have erred in omitting to count the votes in ques-
tion, the relator must look for some other remedy. A mandamus, if
granted, would be unavailing.
The county board of canvassers, except in certain specific cases, is
composed of the supervisors of the several towns in the county. The
ficer whose duty is plainly devolved upon him by statute might refuse to per-
form it, and when his refusal is brought before the court he might success-
fully plead that the performance of the duty involved the construction of a
statute by him, and therefore it was not ministerial, and the court would on
that account be powerless to give relief. Such a limitation of the powers of
the court, we think, would be most unfortunate, as it would relieve from ju-
dicial supervision all executive officers in the performance of their duties,
whenever they should plead that the duty required of them arose upon the
construction of a statute, no matter how plain its language, nor how plainly
they violated their duty in refusing to perform the act required.” Roberts,
Treasurer, v. United States, 176 U. S. 221, 231, 20 Sup. Ct. 376, 379, 44 L.
Ed. 443 (1899).
In New York, where the scope of the writ of certiorari is very extensive,
mandamus apparently does not lie to correct errors in the judicial determina-
tion by administrative authorities of questions of fact or questions of law.
People ex rel. Harris v. Commissioners of Land Office, 149 N. Y. 26, 43 N.
E. 418 (1896); People ex rel. Sims v. Collier, 175 N. Y. 196, 67 N. E. 309
(1903).
See, further, Allbutt v. General Council, 23 Q. B. D. 90 (1889), post, p.
542; United States ex rel. Dunlap v. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L.
Ed. 354 (1888), post, p. 648; United States ex rel. Riverside Oil Co. v. Hitch-
cock, 190 U. S. 316, 23 Sup. Ct. 698, 47 L. Ed. 1074 (1903), post, p. 646.
That mandamus will not lie to control the exercise of discretion, especially
in the matter of liquor licenses, see Batters v. Dunning, 49 Conn. 479 (1882);
Ex parte Yeager, 11 Grat. (Va.) 653 (1854); Post v. Township Board of
Sparta, 64 Mich. 597, 31 N. W. 535 (1887); Attorney General v. Guilford
County Justices, 27 N. 0. 315 (1844); Jones y. Commissioners of Moore Co.,
106 N. C. 436, 11 S. E. 514 (1890); Commissioners of Maxton v. Commission-
ers of Robeson County, 107 N. C. 335, 12 S. E. 92 (1890); Harrison v. People,
222 Ill. 150, 78 N. E. 52 (1906); People ex rel. Schwab v. Grant, 126 N. Y.
473, 27 N. E. 964 (1891); Arnistrong v. Murphy, 65 App. Div. 123, 72 N. Y.
Supp. 473 (1901); A. H. Fenn, Two Questions Concerning Mandamus, 2 Yale
Law Journal, 219.
See, however, Illinois State Board of Dental Examiners v. People, 123 Ill.
227, 13 N. E. 207 (1887).
41 Only a portion of the opinion of Harris, J., is printed.
444
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
alternative mandamus assumes that the defendants, being such supervis-
ors, constitute the board. This is not necessarily the case; but I will
consider the question upon the assumption that this is so. That board
met on the Tuesday following the election, and organized according to
law. It then proceeded, though illegally and improperly, as it is al-
leged, to estimate the votes of the county and to make the statements
prescribed by statute. They also proceeded to determine who had
been elected county officers. This determination, it may be assumed,
was erroneous. But it was made, and a copy, with the statement
upon which it was made, has been published. It has been filed, and
has become matter of record. The board has dissolved. Were the
same individuals again to convene, they would not again constitute
the county board of canvassers. No statute authorizes such second
assembling, or prescribes its mode of organization. If convened and
organized, it would have no legal authority to review its former acts,
or correct its errors. When the board deposited with the clerk the re-
sult of its canvass, and declared who were elected to office, and pub-
lished that result and determination, all its powers were expended.
If it had erred, the errors must be corrected by some other tribunal.
The law has withheld from it the power of reviewing its own de-
terminations.
But suppose the supervisors to reassemble and assume the office of
recanvassing the votes of the county. They have already determined
that Lyman Tremain is elected to the office of county judge. If
they should obey the mandamus, they might make a new statement
and determination, showing that the relator is elected. The object of
granting the writ of mandamus is, as we have seen, to provide an
efficacious remedy to the relator, so as to prevent a failure of justice.
Of what advantage would such a determination, made under such
circumstances, be to the relator? The result would, undoubtedly, be,
as now, that both parties would claim to have been elected county
judge. Both would take the requisite oath of office, and assume its
duties, and the controversy then, as now, would only be determined
by an action in the nature of a quo warranto. Such a revision of the
canvass, therefore, if practicable, would produce no beneficial result,
even to the relator himself. Instead of being an efficacious remedy, the
writ in its operation would be wholly abortive. When it can be fore-
seen that this must be the result, the writ should not be granted. Lex
non cogit ad inutilia. "The court will refuse the writ,” says Tapping,
“if it be manifest that it must be vain and fruitless, or cannot have a
beneficial effect.” Tapping on Mandamus, .17. I am of opinion,
therefore, that, assuming that the board of canvassers erred in re-
jecting the votes of the Third election district of the town of Cat-
skill, it is now too late for the canvassers to correct that error.
The matter has passed beyond their jurisdiction or control. If the
defendants, moved by the command of this court, or otherwise, should
undertake such correction, their action would be wholly ineffectual
Ch.8)
445
ACTIONS FOR SPECIFIC RELIEF.
for the purposes for which the relator seeks to enforce it. Nothing
short of a quo warranto action can determine his right to the office.
I will not say that a state of facts inight not occur which would call
upon the court to interfere by mandamus to control the action of a
board of canvassers, but this can only be done while such board is in
existence. And even then the nature of the duties to be discharged
by it is such that it can rarely be either expedient or practicable thus
to interfere.42 But, when the board, having performed the office for
which it was constituted, whether legally or not, has been dissolved,
it is incapable of being reanimated. Any act it should attempt to per-
form, even though it be done in obedience to the mandate of this
court, would be extraofficial and nugatory.
Nor does the relator need this writ. He has another and a more
efficacious remedy. I agree with him that it is not an answer to the
application for a mandamus to show that some other remedy exists
against some other party. It would not, of itself, be enough for the
defendants to show that the relator can obtain relief by quo warranto
against the person whom they have 'declared to be elected. This
principle only prevails when such other remedy is attainable against
the same party to whom it is sought to have the mandamus directed.
I prefer to put the refusal to grant the writ upon the ground that it
is inappropriate and ineffectual, and that, by withholding it, we do
not leave the relator without an appropriate and effectual remedy.
The ancient and appropriate proceeding to try and determine the
right and title to all offices, says a very learned judge, was under the
writ of quo warranto; and where a legal question was involved, this
was the only mode of determining it. By the Revised Statutes, this
old remedy is not only preserved, but rendered more expeditious and
manageable, and it is declared to be especially applicable "when any
person shall usurp, intrude into, or unlawfully hold or exercise any
public office.” 2 Rev. St. 581, § 28. See, also, Code 1851, § 432.
“Provision is made for the determination of issues of law and of fact.
The right of trial by jury, so vital to the due decision of the latter,
is expressly maintained and declared. This, then, is emphatically
the constitutional mode of proceeding for the trial of the title to
offices.” 43 People v. Stevens, 5 Hill, 631, note "a," per Kent, Chief
Judge.
The motion for a peremptory mandamus must therefore be denied. 44
42 In a proper case the action of a canvassing board will be controlled
by mandamus: People ex rel. Nichols v. Board of County Canvassers of
Onondaga County, 129 N. Y. 395, 29 N. E. 327, 14 L. R. A. 624 (1891); Peo-
ple ex rel. Daley v. Rice, 129 N. Y. 449, 29 N. E. 353, 14 L. R. A. 643 (1891);
People ex rel. Derhy v. State Board of Canvassers, 129 N. Y. 401, 29 N. E.
358 (1891); Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129,
19 L. R. A. 157 (1893).
43 In the case of a clerk, mandamus is proper, since quo warranto is un-
available. People ex rel. Drake v. Sutton, 88 Hun, 175, 34 N. Y. Supp. 487
(1895).
44 See, also, State, etc., v. Lewis, 35 N. J. Law, 377 (1872).
446
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
PEOPLE ex rel. BARTLETT et al. v. DUNNE, Mayor.
(Supreme Court of Illinois, 1906. 219 Ill. 316, 70 N. E. 570.)
Motion by the People, on the relation of one Bartlett and others,
for leave to file a petition for a writ of mandamus against Edward
F. Dunne, Mayor of Chicago. Denied.
CARTWRIGIIT, C. J. Yesterday the relators moved for leave to file
a petition for mandamus, and presented the petition, with suggestions
in support of it. At that time the corporation counsel of the city of
Chicago stated to the court that he had prepared an argument against
the motion, which was presented to the court, and since that time a
reply to his argument has been presented by the relators. The ap-
plication in this class of cases is ex parte, and nothing has been or
will be considered except the petition of the relators, with the ac-
companying suggestions in support of the motion.
The petition sets out that the defendant, Edward F. Dunne, is
mayor of the city of Chicago; that previous to the election he de-
clared that, if elected, he would not enforce the laws of the state and
the ordinances of the city respecting the keeping open of tippling
houses on the Sabbath day; and that since his election he has neg-
lected and refused to enforce such laws and ordinances, and lias de-
clared his deliberate intention to violate his duty in that respect and
not to enforce either of them or to punish violators of them. At-
tention is called to the statute which imposes upon the mayor the
duty and obligation to see that the laws and ordinances are faithful-
ly executed, and the obligation assumed by him as mayor to do so.
The prayer of the petition is that this court will issue the peremp-
tory writ of mandamus to the defendant, enjoining and commanding
him, without delay, and by the use, as far as may be necessary for
the purpose, of every means, power, and authority in that behalf
conferred upon the mayor of said city by the laws of this state or
the ordinances of the city of Chicago, to proceed, and thenceforth
persistently to continue, to enforce within said city the statute of this
state prohibiting the keeping open upon the first day of the week,
called Sunday, of tippling houses and other places where liquor is
sold or given away, and to compel the general observance of the
provisions of said law in said city on each and every Sunday there-
after by every person anienable thereto, and to prevent the viola-
tion thereof, and secure the prosecution of every person violating the
said law in said city, and to punish all violations of said law by li-
censed dramshop keepers in said city by the revocation of their li-
censes, and generally and at all times to take care that said law is
faithfully executed in said city.
The remedy by mandamus is one which is allowed to compel the
performance of some duty owing to an individual or to the public.
The duty must be specific in its nature, and of such character that
Ch. 8)
4.-17
ACTIONS FOR SPECIFIC RELIEF.
the court can prescribe a definite act or series of acts which will con-
stitute a perforinance of the duty, so that the respondent may know
what he is obliged to do and may do the act required, and the court
may know that the act has been performed and may enforce its per-
formance. It is not necessary, in all cases, that the performance of
the duty should consist of a single act. It may be a succession of
acts, if the duty is specific and the acts are of such a nature that the
court can supervise the performance of the duty and the execution
of the mandate. For example, the court may require a railroad com-
pany to relay a portion of its track which has been taken up, and op-
erate it; to operate its railway as a continuous line; to deliver freight
to a certain elevator; to run a daily passenger train for the accom-
modation of passengers over its road, in place of a mixed stock and
passenger train; or to stop all its passenger trains at a certain sta-
tion. But the writ has never been made use of, and does not lie, in
this state at least, for the purpose of enforcing the performance of
duties generally. It will not lie where the court would have to con-
trol and regulate a general course of official conduct and enforce the
performance of official duties generally. In such a case the court
could not prescribe the particular act to be performed and enforce its
performance.
It is plain that in this case, where the court is asked to require the
defendant to adopt a course of official action, although it is a course
required by the statute and imposed upon him by the law, it would
be necessary for the court to supervise generally his official conduct,
and to determine in very numerous instances whether he had persist-
ently, and to the extent of his power and the force in his hands, car-
ried out the mandate of the court and performed his official duty. It
is manifest that, where there are about 7,000 saloons in a city which
are kept open on the Sabbath day in violation of law, as is alleged in
this case, the court would not only have to enforce a general course
of official conduct on the part of the mayor, but must also determine
in numerous instances whether ground existed for the revocation of
licenses, whether there had been violations of law, and to what ex-
tent he had endeavored to perforni his duty with the force and facil-
ities at his command for doing it. The writ will not lie for any such
purpose.
For the court to assume the management of municipal affairs in the
city of Chicago would be to depart from its proper sphere and as-
sume governmental functions, which are outside of the jurisdiction
of the courts and not within the remedy by writ of mandamus. Leave
to file the petition is denied.
Motion denied. 45
45 A writ of mandamus was subsequently refused to enforce the law against
one owner of two saloons. People ex rel. Bartlett v. Busse, 238 Ill. 593, 87
N. E. 840 (1909).
See, also, State ex rel. Wear v. Francis, 95 Mo. 44, SS. W. 1 (1888); State
448
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 54.-SAME-CONTROL OF FAIRNESS OF DIS-
CRETION
*
UNITED STATES ex rel. ROOP v. DOUGLASS.
(Supreme Court of District of Columbia, 1890. 19 D. C. 99.)
JAMES, J. 46
There is nothing alarming in the term dis-
cretionary power. It has a legal meaning, with safe limitations.
The intendment of a law which grants it, whether expressly or by im-
plication, is that the discretionary decision shall be the outcome of
examination and consideration; in other words, that it shall con-
stitute a discharge of official duty, and not a mere expression of
personal will. An arbitrary disapproval of a license, for example, de-
termined upon without an examination of relevant facts, and ex-
pressing nothing but the mood of the officer, would not be, in con-
templation of law, an exercise of the power granted. It would con-
stitute, on the contrary, a neglect and refusal to perform his official
functions, and would expose him to the interference of this court
by the writ of mandamus. To what effect, however, would be a dis-
tinct question.
If, then, the respondents had discretionary power, what averments
must their return contain, in justification of their refusal to issue a
license? We have said that the rule of certainty applies only to the
pleading of those facts which constitute the tests or conditions of
their power, and which show that it has been lawfully exercised.
So is it necessary, then, to state with certainty anything more than
the fact that they have made an examination in obedience to the im-
plied requirement of the law, and the further fact that, upon such
examination, they believe that a license should not be granted to the
petitioners, either because they are not fit persons, or because a bar-
room should not, as a matter of public interest, be licensed in conjunc-
tion with the Globe Theater? Is it necessary that they should also
state with certainty, so as to establish them as facts, or state at all,
the matters of fact on which they based their decision?
The special reasons for respondents' decision--that is to say, the
alleged fact that robberies were committed at the Globe Theater, and
*
*
ex rel. Hawes v. Brewer', 39 Washi. 65, 80 Pac. 1001, 109 Am. St. Rep. 858
(1905).
As to mandamus against the Governor, see 3 Michigan Law Review, p. 631.
Pasmore v. Oswaldthistle Urban Council, [1898] A. C. 387 (House of Lords).
The duty of a local authority under section 15. of the Public Health Act,
1875, to make such sewers as may be necessary for effectually draining
their district, cannot be enforced by mandamus brought by a private person.
The only remedy for the neglect of the duty is that given by section 259 of
the act, a complaint to the local government board.
46 Only a portion of the opinion of James, J., is printed.
Ch.8)
449
ACTIONS FOR SPECIFIC RELIEF.
that it was the resort of thieves and disorderly persons—were stated
unnecessarily, and it is immaterial whether they are pleaded with that
degree of certainty which will establish them as facts.
*
* 47
DEVIN v. BELT.
(Court of Appeals of Maryland, 1889. 70 Md. 352, 17 Atl. 375.)
YELLOTT, J. The Act of 1884, c. 283, § 5, local in its application
and designated as the high license law of Prince George's county,
provides that, in addition to the usual license required by the state,
all applicants for liquor licenses shall, before obtaining said licenses,
pay to the clerk of the circuit court the sum of one hundred dollars
for the use of the public roads of said county. The act provides
"that no spirituous or fermented liquors, or alcoholic bitters, shall
be sold in any election district of said county except as provided for
by section five," and it is further enacted "that each and every ap-
plicant, person or persons, house, corporation, company or associa-
tion shall be recommended to the said clerk by five respectable free-
holders of his or their immediate vicinity, as a fit person to traffic in
the article."
Having conformed with the provisions of this act, the appellant
obtained licenses to sell liquor at his storehouse in the town of Lau-
rel, in Laurel district of Prince George's county, for the period of
one year.
The licenses were issued on the 1st of November, 1887.
At its session of 1888 the Legislature of Maryland enacted a law
submitting to the voters of Laurel district the question in relation to
issuing licenses to sell liquor in that district after the 1st day of May
47 "Here the court of mayor and alderınen have not determined without ev-
idence, for they have heard the parties and their witnesses, and have adjudi-
cated that, in their discretion and sound consciences, Mr. Scales is not a fit
and proper person to be alderman. They have acted, therefore, upon a rea-
sonable and legal custom, and, having so acted, it appears to me that this
court has not jurisdiction to disturb that conclusion to which they have come
according to their discretion and sound consciences. But then it is said that
they ought to have set forth the grounds upon which they arrived at that
conclusion. I think that this is one of those cases in which it is probably
much better that the grounds should not be disclosed, because the circum-
stances which regulate the exercise of a discretion like this may be such that
it would be extremely inconvenient for a traverse to be taken. It is unneces-
sary, however, to proceed upon that reasoning, because this return is suffi-
ciently justified by the cases cited [Rex 7. Mayor of Stratford-on-Avon, 1
Lev. 291 (1670); Rex. V. Burgesses of Andover, 1 Ld. Raym. 710 (1701);
Rex v. Bishop of London, 13 East, 419 (1811); Queen v. Burgesses of Ips-
wich, 2 Ld. Raym. 1240 (1705)), and more might have been adduced, which
show that, where a corporate office is held durante bene placito, it is a suffi-
cient return to a mandamus that the corporation have determined their pleas-
ure; but if the corporation are so candid as to state their reasons, and allege
bad ones, this court will in such cases interfere." Rex v. Mayor and Alder-
men of London, 3 Barn. & Ad. 255, 273, 274.
FR. ADM. LAW--29
450
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
in said year, and the majority of votes determined the question in
favor of prohibiting the issuing of licenses in said district. On the
1st day of June, 1888, the appellant applied to the clerk for trans-
fers of his licenses to sell liquor, from Laurel to an adjoining dis-
trict, claiming to be recommended by five respectable freeholders, liv-
ing in the immediate vicinity of his new place of business. The
transfers were refused by the clerk, who did not think that the ap-
pellant was recommended by five respectable freeholders living in his
immediate vicinity. The record contains the recommendation of five
persons who were unable to write, and therefore made their marks.
The appellant then applied for a new state license. The clerk re-
fused to grant a new license, because the appellant would not pay
the $100 required by law. He also assigned this as one of his rea-
sons for refusing to make the transfers.
Upon this refusal the appellant applied for a writ of mandamus
to compel the clerk to issue the new licenses or transfer the old li-
censes. The clerk filed his answer, the appellant demurred, and the
demurrer was overruled. The appellant then filed a replication, to
which there was a demurrer. This demurrer was sustained, and the
court passed an order dismissing the appellant's petition. From this
order an appeal has been taken.
It does not seem to be necessary to consider and determine many
of the questions presented by the argument of counsel, for it is an
established principle that a court will not issue a mandamus to com-
pel a public officer to perform any act when its performance has been
left by the lawmaking department of the government to the discre-
tion and judgment of the officer. In State ex rel. O'Neill v. Reg-
ister et al., 59 Md. 283, this court decided that when an act rests
by statute in the discretion of any person, or depends upon the exer-
cise of personal judgment, mandamus will not lie. This doctrine
has been recognized and seems to prevail in all the states of this
country. “As to all acts or duties necessarily calling for the exer-
cise of judgment or discretion on the part of the officer or body at
whose hands the performance is required, mandamus will not lie."
High on Extr. Rem. § 24; State ex rel. Exchange Bank v. Board of
Liquidators, 29 La. Ann. 264; Post v. Township of Sparta, 64 Mich.
597, 31 N. W. 535; State v. County Com’rs, 21 Fla. 1; Dalton v.
State, 43 Ohio St. 652, 3 N. E. 685.
The clerk of Prince George's county, in the performance of a duty
imposed on him by law, had to determine, before he issued a li-
cense, that the appellant was recommended by five persons; that
those five persons lived in the inmediate vicinity of his place of
business; that they were freeholders; and that, although so ignorant
and illiterate that they could not write their names, they were re-
spectable freeholders. It is apparent that this question of respect-
ability soinetimes presents many difficulties. It was a duty incum-
Ch.8)
451
ACTIONS FOR SPECIFIC RELIEF.
bent on the clerk to solve this question, and he might not be able to
arrive at a solution until after patient inquiry and the exercise of
sound judgment and discretion, and a mandamus will not lie.
The appellant contends that, as he averred in his replication that
he was recommended by five respectable freeholders in his immediate
vicinity, the demurrer to the replication admits the truth of the aver-
ment. This argument is not supported by established principles.
In Brooke v. Widdicombe, 39 Md. 400, the late Chief Judge Bartol,
in delivering the opinion of this court, said: "The answer avers that
the petitioner was not legally elected to the office; but that the re-
spondent actually received'a plurality of the votes cast. In the ar-
gument of the case it was earnestly insisted on the part of the ap-
pellant that the effect of the demurrer was to admit the facts thus
stated in the answer, and consequently that the appellee is in the
attitude of claiming an office to which he admits by his pleading he
was not legally elected. Such is not the legal effect of the demurrer.
It is well settled that a denurrer admits no other facts than those
which are well pleaded. If facts are pleaded which are insufficient
in substance, or immaterial, they are not admitted by the demurrer to
be true; its office is to assert a legal proposition that the pleading de-
murred to is insufficient in law to maintain the case shown by the
adverse party."
From what has been said it follows that the order appealed from
must be affirmed.48
AMPERSE v. CITY OF KALAMAZOO.
(Supreme Court of Michigan, 1986. 59 Mich. 78, 26 N. W. 222, 409.)
Relator applied for an order to show cause why a inandamus should
not issue requiring the common council of the city of Kalamazoo to
act upon the approval of her bond as a liquor dealer in said city,
which was granted, to which respondent made answer. The facts
are stated in the opinions.
MORSE, J.49
Two reasons are urged why the writ should
not issue in this case: First, because the relator is a married
woman, living with her husband, and is therefore legally disqualified
from lawfully engaging in the business of selling liquor; second,
that the common council have a right to reject a liquor bond, and
they are not required to give any reason for their action.
The duty of this board, under the statute, is a simple one. They
are concerned, under the law, solely with these questions: Is the bond
*
48 See, also, Post v. Township Board of. Sparta, 64 Mich. 597, 31 N. W. 535
(1887).
49 Only a portion of the opinion of Morse, J., is printed.
452
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
proper in form and the penalty named therein sufficient? Are the
bondsmen residents of the municipality and financially responsible
for their undertaking? If they are not satisfied as to any of these
matters, it is their duty to reject the bond, and to acquaint the peti-
tioner with the ground upon which they reject it, so the bond may
be remedied, if possible. If these questions are found in the affirma-
tive, it is the duty of the board to approve it. They have no power
to arbitrarily reject a bond without having any valid reason, or
without assigning any good reason therefor. And we think the rea-
son for rejecting a bond should appear of record. If not, then we
shall have a common council rejecting a bond, each member of the
body locking up in his own breast the reason therefor, and when
called upon by a court to show the ground of their action, at liberty
to assign any cause it may seem best, under the circumstances,
whether it be the real cause at the time of their action or not. A
person engaging in the sale of liquors is entitled to the same equal
rights, under the law, as persons filing bonds under other circum-
stances, no matter what may be the opinion of individual members
of the board, whose duty it is to approve the bond, as to the policy
of the law or the character of the business; and no captious or ar-
bitrary actions in depriving him of his rights can be tolerated by the
courts.
It was held by this court, in Parker v. Portland, 54 Mich. 308, 20
N. W. 55, that when the board have exercised their judgment and
discretion in good faith, and passed upon the bond, mandamus would
not lie. to control their decision or action, if there was no abuse of
their discretion; but there is no authority in that case to sustain the
arbitrary action of this board, who acted without any legal judg-
ment or discretion, but, in the language of one of the members, took
their chances of disobeying the plain mandate of the statute, and
who, when called upon to explain or justify their action, return to
this court, in substance: "We did this because we had the right
and power to do it, and it is no one's business what our reasons were
for rejecting this bond." It was expressly held in Parker v. Port-
land that, when the rejection of a liquor bond "was the result of
prejudice and caprice," it would be the duty of this court to grant
relief. Such is plainly the case before us.
The respondents in this case have seen fit to rest their cause upon
the broad ground that their action is above and beyond the criticism
of any other tribunal. Their answer assumes that they are the sole
arbiters of the relator's right to engage in the business of selling
liquor. Whether they have any good reason for their action for
some cause they decline to inform us. In such case we can only as-
sume that they have acted arbitrarily and without reason. To allow
such action would be in plain violation of the statute, and a manifest
disregard of the 'rights of the relator under it.
*
Ch.8)
453
ACTIONS FOR SPECIFIC RELIEF.
The writ of mandamus must issue in this case to respondents to
approve forthwith the bond presented by relator, with costs in her
favor. 50
STATE ex rel. COFFEY v. CHITTENDEN.
(Supreme Court of Wisconsin, 1902.
112 Wis. 569, 88 N. W. 587.)
MARSHALL, J.51 It is elementary that in mandamus proceedings
to coerce a judicial officer or any person or board in the exercise of
judicial or quasi judicial power, the sole legitimate purpose thereof
is to set such person or board in motion; to command him or it to
act, not how to act, to exercise the judicial power vested in him or it;
not to control as to the conclusion to be reached. State v. Kellogg;
95 Wis: 672, 70 N. W. 300; State v. Johnson, 103 Wis. 591, 623,
79 N. W. 1081, 51 L. R. A. 33; State v. Teal, 72 Minn, 37, 74 N.
W. 1024; Merrill, Mand. 40. Where there is no reasonable ground
to justify a decision by such officer or board other than one way,
and there is a failure to act accordingly, the function of a mandamus
proceeding is broad enough to remedy the mischief by compelling
the making of such decision, in perfect harmony with the rule that
the office thereof is not to control discretionary authority, but to com-
pel the exercise thereof. State v. Johnson, supra. That is to say,
if the law imposes the duty upon a judicial or quasi judicial body to
do a particular thing upon determining that certain facts exist, and
reasonable inquiry be made by it in respect to such facts, and from
the information thus obtained there is no reasonable ground for any
conclusion other than that the conditions precedent to the performance
of such duty exist, and a decision is made to the contrary or perform-
ance thereof is refused, such conduct is not the exercise of discre-
tionary power, but a refusal to exercise it-a refusal or neglect to
perform a plain duty imposed by law; and, there being no adequate
legal remedy, the way is open for the extraordinary jurisdiction of
the court to award its writ of mandamus. It is plain that, in such a
situation, the court does not deal with disputed facts. It acts upon
the theory that the person or body in duty bound to find the facts in
accordance with the evidence, in refusing to do so, goes beyond or
refuses to exercise his or its jurisdiction, and is, on that ground
alone, a subject for coercion by mandamus. State v. Johnson, su-
pra.
*
*
* 52
50 Accord: State ex rel. Adanson y. La Fayette Co., 41 No. 221 (1867).
See, also, Ex parte Candee, 48 Ala. 386 (1872), disapproved in Ex parte
Harris, 52 Ala. 87, 93, 23 Am. Rep. 559 (.1875).
61 Only a portion of the opinion of Marshall, J., is printed.
52 See, a note in 6 Mich. Law Review, p. 242.
.
454
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 55.-MANDAMUS IN THE COURTS OF THE
UNITED STATES
KENDALL v. UNITED STATES ex rel. STOKES.
*
(Supreme Court of United States, 1838. 12 Pet. 524, 9 L. Ed. 1181.)
THOMPSON, J.53
The next inquiry is, whether the court
below 54 had jurisdiction of the case, and power to issue the mandamus ?
This objection rests upon the decision of this court, in the cases of
McIntire v. Wood, 7 Cranch, 504, 3 L. Ed. 420, and McClung v.
Silliman, 6 Wheat. 598, 5 L. Ed. 340. It is admitted that those
cases have decided that the Circuit Courts of the United States, in
the several states, have not authority to issue a mandamus against
an officer of the United States.
The result of these cases, then, clearly is that the authority to is-
sue the writ of mandamus to an officer of the United States, com-
manding him to perform a specific act required by a law of the United
States, is within the scope of the judicial powers of the United States
under the Constitution, but that the whole of that power has not been
communicated by law to the Circuit Courts, or, in other words, that
it was then a dormant power, not yet called into action, and vested in
those courts, and that there is nothing growing out of the official
character of the party that will exempt him from this writ, if the act
to be performed is purely ministerial.
It must be admitted, under the doctrine of this court in the cases
referred to, that unless the circuit court of this District is vested with
broader powers and jurisdiction in this respect than is vested in the
Circuit Courts of the United States in the several states, then the man-
damus in the present case was issued without authority. But in
considering this question it must be borne in mind that the only
ground on which the court placed its decision was that the consti-
tutional judicial powers on this subject had not been imparted to
those courts.
But let us examine the act of Congress of the 27th of February,
1801, concerning the District of Columbia, and by which the circuit
court is organized, and its powers and jurisdiction pointed out. And
it is proper, preliminarily, to remark that under the Constitution of
the United States, and the cessions made by the states of Virginia
and Maryland, the exercise of exclusive legislation, in all cases what-
soever, is given to Congress. And it is a sound principle that, in
*
58 For first part of opinion, see ante, p. 434.
Only portions of the opinions of Thompson and Catron, JJ., are here printed.
64 The circuit court of the District of Columbia.
Ch. 8)
455
ACTIONS FOR SPECIFIC RELIEF.
every well-organized government, the judicial power should be co-
extensive with the legislative, so far, at least, as private rights are to
be enforced by judicial proceedings. There is, in this District, no
division of powers between the general and state governments.
Congress has the entire control over the District, for every purpose
of government; and it is reasonable to suppose that, in organizing a
judicial department here, all judicial power necessary for the pur-
poses of government would be vested in the courts of justice. The
circuit court here is the highest court of original jurisdiction; and
if the power to issue a mandamus in a case like the present exists in
any court, it is vested in that court.
Keeping this consideration in view, let us look at the act of Con-
gress. The first section declares that the laws of the state of Mary-
land, as they now exist, shall be and continue in force in that part of
the District which was ceded by that state to the United States, which
is the part lying on this side the Potomac, where the court was sitting
when the mandamus was issued. It was admitted on the argument
that at the date of this act the common law of England was in force
in Maryland, and, of course, it remained and continued in force in this
part of the District; and that the power to issue a mandamus in a
proper case is a branch of the common law cannot be doubted, and
has been fully recognized as in practical operation in that state, in
the case of Runkel v. Winemiller, 4 Har. & McH. 448, 1 Am. Dec.
411.
There can be no doubt but that, in the state of Maryland, a writ
of mandamus might be issued to an executive officer, commanding
him to perform a ministerial act required of him by law; and if it
would lie in that state, there can be no good reason why it should
not lie in this district, in analogous cases.
Thus far the power of the circuit court to issue the writ of manda-
mus has been considered as derived under the first section of the act
of 27th February, 1801. But the third and fifth sections are to be
taken into consideration in deciding this question. The third sec-
tion, so far as it relates to the present inquiry, declares "that there
shall be a court in this dictrict, which shall be called the circuit
court of the District of Columbia; and the said court, and the
judges thereof, shall have all the powers by law vested in the Cir-
cuit Courts and the judges of the Circuit Courts of the United
States." And the fifth section declares "that the said court shall
have cognizance of all cases, in law and equity, between parties,
both or either of which shall be resident or be found within the Dis-
trict."
* This, of course, means cases of judicial cogni-
zance. That proceedings on an application to a court of justice for
a mandamus are judicial proceedings cannot admit of a doubt;
and that this is a case in law is equally clear. It is the prosecution
of a suit to enforce a right secured by a special act of Congress, re-
quiring of the Postmaster General the performance of a precise, def-
*
*
*
*
456
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
inite and specific act, plainly enjoined by the law. It cannot be denied
but that Congress had the power to command that act to be done; and
the power to enforce the performance of the act must rest somewhere,
or it will present a case, which has often been said to involve a mon-
strous absurdity in a well-organized government, that there should
be no remedy, although a clear and undeniable right should be shown
to exist. And if the remedy cannot be applied by the circuit court of
this District, it exists nowhere. But by the express terms of this
act the jurisdiction of this circuit court extends to all cases in law,
etc. No more general language could have been used. An attempt
at specification would have weakened the force and extent of the
general words—all cases. Here, then, is the delegation to this circuit
court of the whole judicial power in this District, and in the very
language of the Constitution, which declares that the judicial power
shall extend to all cases in law and equity, arising under the laws of
the United States, etc., and supplies what was said by this court in
the cases of McIntire v. Wood and McClung v. Silliman, to be
wanting, viz.: That the whole judicial power had not been delegated
to the Circuit Courts in the states, and which is expressed in the
strong language of the court, that the idea never presented itself to
any one that it was not within the scope of the judicial powers of the
United States, although not vested by law in the courts of the general
government.
The judgment of the court below is accordingly affirmed.
CATRON, Justice (dissenting). * * On the merits, I think
the Senate of the United States, and the Solicitor of the Treasury,
construed the special act of Congress correctly, and that the Solic-
itor's award is a final adjudication, and conclusive of the rights of the
relators.
But the question whether the circuit court of this District had
power to compel the Postmaster General, by mandamus, to enter a
credit for the amount awarded, lies at the foundation of our institu-
tions. A question more grave or important rarely arises. Coercion,
by the writ of mandamus, of the officers and agents of a government,
is one of the highest exertions of sovereignty known to the British
constitution and common law. It is truly declared to be one of the
flowers of the King's Bench (3 Bl. Cor. 110, note), and in England
can only be enforced by that court, where the king formerly sat in
person, and is now deemed to be potentially present. It is his com-
mand, in his own name, directed to a court, person or corporation,
to do a particular thing therein specified, which appertains to their
office or duty, as a means of compelling its performance. 3 Bl. Com.
c. 7. The proceeding there, as here, is in the name of the government,
and not that of the relators; it stands on the foot of contempt, and
is intended to reform official delinquency.
By the act of independence, this prerogative and portion of sov-
ereignty, unimpaired, devolved on the different states of this Union;
Ch. 8)
457
ACTIONS FOR SPECIFIC RELIEF.
*
*
and by the Constitution of the United States, such portion of it
as was necessary to coerce the courts, officers and agents of the
general government was withdrawn from the states, and conferred on
the federal sovereignty. Here the power lay dormant, until Congress
should act. On the Legislature was imposed the duty to give it effect;
it was wide as the land, and extended to every portion of it; and
by the judiciary act of 1789 (section 13) Congress attempted to in-
vest the Supreme Court of the United States with the power to issue
writs of mandamus to persons holding office under the authority of
the United States. But the Constitution having restricted this court
to the exercise of certain original powers, and this not being amongst
them, it was holden, in Marbury v. Madison, 1 Cranch, 137, 2 L.
Ed. 60, so much of the act was void. The decision was made in
1803; up to that time, Congress and the country did not question
that a law existed, proper and necessary to give effect to the prerog-
ative, through the instrumentality of this court, and that it was
properly vested in the highest tribunal in the land, exercising a
jurisdiction coextensive with our whole territory. So the matter
stood, when the act of the 27th February, 1801, was passed, organiz-
ing the circuit court for the District of Columbia. And the ques-
tion is, did Congress, by implication, confer, or intend to confer,
this high prerogative, within the ten miles square, on the circuit
court? That concurrent power with the Supreme Court was intended
to be given it is difficult to believe.
It is admitted, and was so decided in McIntire v. Wood, that none
other of the Circuit Courts of the United States, holden by the judges
of the Supreme Court, have the power claimed for the court in this
District, and that throughout the twenty-six states of the Union this
high prerogative writ cannot be exerted, because Congress, since the
decision in 1803, in the case of Marbury v. Madison, has not seen
proper to vest it in these inferior tribunals; nor is it matter of
surprise, when we recollect to what extent the executive departments
would have been subjected to the judicial power.
Should we, then, by doubtful implication and a strained construc-
tion, apply this highest of judicial powers, in its nature broad as the
Union, to this ten miles square? That the power can only be main-
tained to exist by implication, and not by express enactment, is ad-
mitted on all hands. It never was attempted to be conferred, in ex-
press terms, save on the Supreme Court; and is the construction that
invokes it for the circuit court of this District a strained one? The
tenth section of the repealed act of the 13th of February, 1801, de-
clares "that the circuit courts then established shall have, and are
hereby invested with, all the powers heretofore granted by law to the
Circuit Courts of the United States, unless otherwise provided by
this act.” There is no repealing clause to the act. The section
quoted refers directly to the fourteenth section of the act of 1789,
for the powers common to all the Circuit Courts of the Union. They
0
458
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
have stood unaltered, and been recognized, with slight exceptions, as
the sole powers by which the jurisdiction of the Circuit Courts has
been enforced, from the year 1789 to this time.
It is insisted, however, that the jurisdiction conferred on the
circuit court by the eleventh section of the repealed act of the 13th
of February, 1801, is much broader than that given to them by the
eleventh section of the act of 1789; that the act of 1801 covers the
whole ground of the Constitution. This is certainly true; but the
fifth section of the act of the 27th of February, 1801, declaring what
matters shall be cognizable in the circuit court for the District of
Columbiaconfers jurisdiction quite as comprehensive. Its cogni-
zance (or jurisdiction “to hold plea") extends to all crimes and of-
fenses, and to all cases in law and equity, provided the defendant be
found in the district. Thus, as the eleventh sections of the act of
1789 and the 13th of February, 1801, each have reference to the exer-
cise of jurisdiction, in suits or actions between litigant parties, or over
matters in some form brought before the court to try and ascertain
a contested right, it would be a most unnatural construction to hold
(as I think) that the phrase "cognizance of all cases in law and equity"
authorized the court to assume the high power of coercing by man-
damus one of the Secretaries, or the Postmaster General, to the
performance of some specific public duty, in case of an ascertained
right, by force of the strong arm of sovereign power, because he was
a public officer; and who was not a suitor in court, or party to a
case in law or equity. *
The truth, there can be little room for doubt, is that Congress has
been unwilling to expose the action of the government, in the ad-
ministration of its vast and complicated affairs, and its officers, who
have charge of their management, to the danger and indignity of
being coerced and controlled, at the ill-defined discretion of the
inferior courts, by the writ of mandamus, and that after the decision
of Marbury v. Madison, in 1803, holding that the Supreme Court had
not the power thus to coerce an officer of the United States, it has
been permitted to lie dorniant, awaiting the action of the Legislature.
The supposition is rendered highly probable, when we consider the
delicacy its exercise would necessarily involve, and the difficulty of
vesting so high and extensive a power in the inferior courts, and es-
pecially, in those of this District, in a modified and safe form.
Such being my own opinion, I think the order awarding the man-
damus against the Postmaster General should be reversed, for want
of jurisdiction in the court below to issue the writ.
Judgment affirmed. 53
*
*
55 It was held in United States v. Schurz, 102 U. S. 378, 393, 394, 26 L. Ed.
167 (1880), that the revision of the statutes of the United States did not affect
the jurisdiction of the Supreme Court of the District of Columbia to issue
writs of mandamus.
Ch. 8)
459
ACTIONS FOR SPECIFIC RELIEF.
BATH COUNTY v. AMY.
*
* *
(Supreme Court of United States, 1871. 13 Wall. 244, 20 L. Ed. 539.)
Error to the Circuit Court for the District of Kentucky; the case
being thus :
The eleventh section of the judiciary act of 1789, enacts that "the
Circuit Court shall have original cognizance, concurrent with the
courts of the several states, of all suits of a civil nature at common
law,
between a citizen of the state where the suit was
brought and a citizen of another state."
The fourteenth section of the same act, referring to certain courts
of the United States, including the Circuit Courts, enacts: "That all
the before-mentioned courts of the United States shall have power to
issue writs of scire facias, habeas corpus, and all other writs not
specially provided for by statute, which may be necessary for the
exercise of their respective jurisdictions, and agreeable to the prin-
ciples and usages of law."
With those statutes in force, the Legislature of Kentucky incor-
porated, A. D. 1852, the Lexington & Big Sandy Railroad Company.
By the charter of the railroad the county courts of the different
counties, through which it was to run, were authorized to subscribe
to the stock of the road, and to pay their subscriptions by bor-
rowing money, making the money borrowed payable in the way in
which the county courts should deem inost advisable. The interest
on all such sums borrowed was to be provided for in like manner,
provided that all taxes laid to pay either principal or interest should
be sacredly appropriated to such purpose and no other. A subse-
quent act required the county courts to issue bonds, and to proceed to
levy, assess, and collect a tax to pay the interest thereon, according
to the true intent and meaning of the previous act.
The county of Bath subscribed $150,000, and issued one hundred
and fifty bonds of $1,000 each, payable thirty years from date, with
interest semiannually, for which coupons were annexed. And the
company, having indorsed them, sold and put them into circulation.
The county court levied the tax and paid the interest for five years,
and then stopped payment.
In this state of things one Amy, of New York, being the holder of
eighty-two of the bonds, with the overdue and unpaid coupons, in
November, 1866, made a written demand upon the justices, who com-
posed the county court of Bath county, requiring the court forthwith
to levy the necessary tax to pay his coupons, and notified to each of
the judges that, if they did not do so, he would on the second day of
the next term of the Circuit Court of the United States, sitting in the
district, move that court for the writ of mandamus requiring them to
do it. No tax was levied; and at the next tern of the Circuit Court,
Amy accordingly filed an affidavit in the nature of an information,
460
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RELIEF AGAINST ADMINISTRATIVE ACTION.
56
setting forth specifically his case, and concluding with a prayer for a
mandamus requiring the tax to be levied. The court granted a rule
against the county to show cause why the writ should not issue. The
county came and craved oyer of the bonds and coupons, which was
had, upon which it moved the court to discharge the rule, and also
filed a response to the rule setting forth eleven points of defense.
By agreement of counsel a general traverse of the facts set out in
the response was entered on the record, and the law and facts sub-
mitted to the court for trial and decision. Upon the trial, the court
found the issues for the plaintiff, and gave judgment awarding a
peremptory writ of mandamus. To reverse this judgment the county
brought the case here; the chief ground of the argument of their
counsel, Messrs. M. Blair, J. G. Carlisle, and J. B. Beck, being that
under the fourteenth section of the act of September 24, 1789, the
Circuit Court of the United States had no jurisdiction to issue a writ
of mandamus, there having been no previous judgment of the court
in favor of the party holding the obligations, and no previous attempt
made by it to enforce their payment by its ordinary process.
Mr. Justice STRONG delivered the opinion of the court.
It must be considered as settled that the Circuit Courts of the
United States are not autlorized to issue writs of mandamus, unless
they are necessary to the exercise of their respective jurisdictions.
Those courts are creatures of statute, and they have only so much of
the judicial power of the United States as the acts of Congress have
conferred upon them. The judiciary act of 1789, which established
them, by its eleventh section, enacted that they shall have original
cognizance, concurrently with the courts of the several states, of "all
suits of a civil nature at comnion law, or in equity," between a citizen
of the state in which the suit is brought and a citizen of another state,
or where an alien is a party. While it may be admitted that, in some
senses, the writ of mandamus may properly be denominated a suit at
law, it is still material to inquire whether it was intended to be em-
braced in the gift of power to hear and determine all suits at common
law, of a civil nature, conferred by the judiciary act.
At the time when the act was passed it was a high prerogative
writ, issuing in the king's name only from the Court of King's Bench,
requiring the performance of some act or duty, the execution of
which the court had previously determined to be consonant with right
and justice. It was not, like ordinary proceedings at law, a writ of
right, and the court had no jurisdiction to grant it in any case except
those in which it was the legal judge of the duty required to be per-
formed. Nor was it applicable, as a private remedy, to enforce simple
common-law rights between individuals. Were there nothing more,
then, in the judiciary act than the grant of general authority to take
cognizance of all suits of a civil nature at common law, it might
66 Only a portion of the opinion is printed.
Ch. 8)
461
ACTIONS FOR SPECIFIC RELIEF.
well be doubted whether it was intended to confer the extraordinary
powers residing in the British Court of King's Bench to award pre-
rogative writs.
All doubts upon this subject, however, are set at rest by the four-
teenth section of the same act, which enacted that Circuit Courts shall
have "power to issue writs of scire facias, habeas corpus, and all
other writs not specially provided for by statute which may be nec-
essary to the exercise of their respective jurisdictions and agreeable
to the principles and usages of law." Among those other writs, no
doubt, mandamus is included; and this special provision indicates
that the power to grant such writs generally was not understood to be
granted by the eleventh section, which conferred, only to a limited
extent, upon the Circuit Courts the judicial power existing in the
government under the Constitution. Power to issue such writs is
granted by the fourteenth section, but with the restriction that they
shall be necessary to the exercise of the jurisdiction given. . Why
make this grant if it had been previously made in the eleventh sec-
tion? The limitation only was needed.
This subject has heretofore been under consideration in this court,
and in McIntire v. Wood, 7 Cranch, 504, 3 L. Ed. 420, it was unani-
mously decided that the power of the Circuit Courts to issue the writ
of mandamus is confined exclusively to those cases in which it may
be necessary to the exercise of their jurisdiction. The court said:
"Had the eleventh section of the judiciary act covered the whole
ground of the Constitution, there would be much reason for exer-
cising this power in many cases wherein some ministerial act is
necessary to the completion of an individual right arising under laws
of the United States, and the fourteenth section of the act would
sanction the issuing of the writ for such a purpose. But, although
the judicial power of the United States extends to cases arising under
the laws of the United States, the Legislature have not thought proper
to delegate the exercise of that power to its Circuit Courts, except in
certain specified cases." And in McClung v. Silliman, 6 Wheat.
601, 5 L. Ed. 340, this court said, when speaking of the power to
issue writs of mandamus: "The fourteenth section of the act under
consideration [the judiciary act] could only have been intended to
vest the power
in cases where the jurisdiction already
exists, and not where it is to be courted or acquired by means of the
writ proposed to be sued out.” In other words, the writ cannot be
used to confer a jurisdiction which the Circuit Court would not have
without it. It is authorized only when ancillary to a jurisdiction
already acquired. The doctrihe asserted in both these cases was
conceded to be correct by both the majority and the minority of the
court in Kendall v. United States, 12 Pet. 524, 9 L. Ed. 1181. The
power to issue a writ of mandamus as an original and independent
proceeding does not, then, belong to the Circuit Courts.
Applying this rule to the present case, it is decisive. The relator's
* *
*
*
462
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
n
claim for payment had not been brought to judgment in the Circuit
Court, nor had it been put in suit. His application for a manda-
mus was, therefore, an original proceeding, neither necessary nor
ancillary to any jurisdiction which the court then had. For this rea-
son it should have been denied, and the judgment that a peremptory
mandamus should issue was erroneous.
Judgment reversed, and the cause remanded with instructions to
dismiss the petition for a mandamus.57
UNITED STATES ex rel. SEEGER V. PEARSON, Postmaster.
(Circuit Court of United States, S. D. New York, 1887. 32 Fed. 309.)
Mandamus.
The relator alleges that he is the editor and proprietor of a news-
paper periodical called “Medical Classics," and has requested the de-
fendant, who is the postmaster of New York, to enter and transmit
through the mails this publication as second-class matter. This re-
quest was refused by the defendant, and the publication was charged
a higher rate of postage, as third-class matter, because held to be
designed as an advertising medium. The relator denies any such pur-
pose. On appeal by the relator to the First Assistant Postmaster
General, this refusal was sustained; and the relator brings this pro-
ceeding to compel the defendant, by mandamus, to receive and
transmit the publication as second-class matter.
BROWN, J. I am constrained, by the weight of authority, to de-
cline to entertain this proceeding by mandamus. A long line of
decisions of the Supreme Court has affirmed the broad doctrine that
the Circuit Court has no jurisdiction to issue'a writ of mandamus as
an original proceeding, but only as ancillary to some other proceedings
or right of which it has jurisdiction.
Considering that the fourth subdivision of section 629 of the Re-
vised Statutes (U. S. Comp. St. 1901, p. 503) gives the Circuit Court
express jurisdiction "of all causes arising under the postal laws"
(Act March 3, 1845, 5 Stat. 739), and that the fourteenth section
of the judiciary act (section 716, Rev. St. [page. 580, U. S. Comp.
St.]) authorizes the federal courts to issue such writs whenever
"necessary for the exercise of their respective jurisdictions, and
agreeable to the usages and principles of law,” it might have been
inferred, in the absence of authority, that if the relator was entitled
to the relief demanded, according to the general usage and practice
57 So Rosenbaum y. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743
(1887).
As to power of federal courts to issue mandamus to municipal corporations
to levy taxes required for the payment of judgments, as an ancillary jurisdic-
tion to the enforcement of judgments recovered in those courts, see Riggs v.
Johnson Co., 6 Wall. 166, 18 L. Ed. 768 (1867).
Ch.8)
463
ACTIONS FOR SPECIFIC RELIEF.
of the law, and if a writ of mandamus was the proper remedy for
such relief, the writ might have been issued in the exercise of the
proper jurisdiction of the court, inasmuch as the cause is one arising
exclusively "under the postal laws."
Upon repeated examination of the decisions of the Supreme Court,
however, I cannot find myself authorized to treat this question as
an open one. In most of the cases in which the question has arisen,
the Circuit Court had undoubted original jurisdiction of the sub-
ject-matter of the proceedings, under some one or other of the ex-
press provisions of the statutes, quite as clear as is its authority to
determine “all causes arising under the postal laws.” Nevertheless,
the right to pursue the remedy by means of an original writ of
mandamus has been uniformly denied. McIntire v. Wood, Cranch,
504, 3 L. Ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. Ed. 340;
Bath Co. v. Amy, 13 Wall. 244, 20 L. Ed. 539; Graham v. Norton,
15 Wall. 427, 21 L. Ed. 177; County of Greene v. Daniel, 102 U. S.
187, 26 L. Ed. 99; Davenport v. County of Dodge, 105 U. S. 237, 26
L. Ed. 1018; Rosenbaum v. Board (C. C.) 28 Fed. 223; U. S. ex
rel. Reed v. Smallwood, 1 Chi. Leg. N. 321, Fed. Cas. No. 16,315.
Without considering, therefore, in what cases, or to what ex-
tent, a review of the decision of the postmaster or of the Assistant
Postmaster General, as respects the determination of the question of
fact upon which the rating of postal matter depends, is either re-
viewable at all, or under a proceeding by mandamus (see Carrick v.
Lamar, 116 U. S. 423, 6 Sup. Ct. 424, 29 L. Ed. 677), I must dismiss
the application upon the ground first stated.58
58 The following cases in this collection are cases of mandamus: State v.
Justices, 15 Ga. 408 (1854); People ex rel. Sheppard v. Ill. State Board of
Dental Examiners, 110 Ill. 180 (1884); Illinois State Board of Dental Ex-
aminers v. People, 123 Ill. 227, 13 N. E. 201 (1887); Harrison v. People, 222
Ill. 150, 78 N. E. 52 (1906); Ex parte Sparrow, 138 Pa. 116, 20 Atl. 711
(1890); Ayers v. Hatch, 175 Mass. 489, 56 N. E. 612 (1900); People ex rel.
Greenwood v. Board of Supervisors Madison Co., 125 Ill. 334, 17 N. E. 802
(1888); Allbutt v. General Council, 23 Q. B. D. 400 (1889); Potts v. Breen, 167
Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262 (1897); People ex rel.
Bush v. Collins, 7 Johns. (N. Y.) 549 (1811); Gage v. Censors, 63 N. H. 92,
56 Am. Rep. 492 (1884); People ex rel. Lodes v. Department of Health, 189
N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894 (1907); People ex rel. Fonda
v. Morton, 148 N. Y. 156, 42 N. E. 538 (1896); U. S. ex rel. Roop v. Douglass,
19 D. C. 99 (1890); U. S. v. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354
(1888); U. S. V. Hitchcock, 190 U. S. 316, 23 Sup. Ct. 698, 17 L. Ed. 1074
(1903); People ex rel. Raster y. Healy, 230 Ill. 280, 82 N. E. 599, 15 L. R.
A. (N. S.) 603 (1907); People ex rel. Post y. Healy, 231 Ill. 629, 83 N. L.
453 (1908).
464
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RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 56.-CERTIORARI
The writ of certiorari is used for the purpose of bringing up for review:
1. The judgment of a court, where appeal or writ of error is not a matter
of right, but the higher court directs the case to be certified to it by the lower
court for review. So under section 6 of the federal Circuit Court of Appeals
Act of March 3, 1891 (U. S. Comp. St. 1901, p. 549).
2. The conviction of an inferior court of criminal jurisdiction. See, e. g.,
Jackson v. People, 9 Mich. 111, 77 Am. Dec. 491 (1860), post, p. 475, and
Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 755, 56 L. R. A. 733, 87 Am. St.
Rep. 122 (1902), ante, p. 56.
3. The quasi judicial decisions of administrative authorities.
It is only the latter application which is to be here considered.
Hawkins, Pleas of the Crown, II, C. 27, one of the chief authorities for the
writ, deals mainly with the second application.
The best account of the writ as an administrative law remedy is an article
by Prof. F. J. Goodnow on the Writ of Certiorari in 6 Polit. Science Quarterly,
p. 493.
1
SECTION 57.-SAME-AUTHORITIES AND ACTIONS SUB-
JECT TO WRIT
BALL V. PATTRIDGE.59
(Court of King's Bench, 1666. 1 Sid. 296.)
By statute Car. II it is enacted that there shall be certain Commis-
sioners who shall have power to receive claims concerning the fens
in Cambridge, Huntington, etc., and to decide the boundaries of them,
and that they shall make decrees and return them in the petty bag
in chancery. And motions were made several times for certiorari to
remove the proceedings before the commissioners, and some were
granted.
But afterwards, on consideration of the statute, they re-
solve that no certiorari will lie. And if there shall be any (writ), it
shall be procedendo, for (by THE COURT) this is a new judicature
absolute in the commissioners by this new law, with which this court
has nothing to do if they proceed according to the statute, for then it
binds perpetually, but if they do not proceed according to statute
then all is void and coram non judice, and the parties are at liberty
to examine this in an action brought at common law.
59 The original report is in Norman French.
Ch. 8)
465
ACTIONS FOR SPECIFIC RELIEF.
REX V. INHABITANTS IN GLAMORGANSHIRE.
(Court of King's Bench, 1700. 1 Ld. Raym. 580.)
Orders were made by the justices of peace, for levying money, for
repairing Caerdiffe bridge, by virtue of the 23 Eliz. c. 11. And it
was objected by Mr. Earle and Mr. Lechmore, that this court cannot
in this case grant a certiorari; because it was a new jurisdiction
erected by a new act of Parliament, the trust of the execution of
which is reposed in the justices, and this court has nothing to inter-
meddle with it; for if they proceed according to the statute, then
there is no reason to remove their orders; but if not, then what they
do is coram non judice, and void. And the parties may exainine the
legality of their proceedings in an action; and so it was held in a case
of decrees made by commissioners upon the act for the fens. 1.
Sid. 296, Ball v. Partridge; Hardr. 480, Terry v. Huntington; Cro.
Car. 394, Nichols v. Walker. And no certiorari lies to remove orders
made by commissioners of bankrupts.
Sed non allocatur. For this court will examine the proceedings of
all jurisdictions erected by act of Parliament. And if they, under
pretence of such act, proceed to incroach jurisdiction to themselves
greater than the act warrants, this court will send a certiorari to
them, to liave their proceedings returned here; to the end that this
court may see, that they keep themselves within their jurisdiction;
and if they exceed it, to restrain them. And the examination of such
matters is more proper for this court. As in the case in question;
whether the act of Queen Elizabeth impowers the justices to raise
money to mend wears, and to determine the doubt upon the act. As
to the cases of orders made by commissioners of sewers, and of the
fens, the court is cautious in granting certioraris; and first they
make inquiry into the nature of the fact, and what will be the conse-
quence of granting the writ; because the country may be drowned
in the mean time, whilst the commissioners are suspended by the
certiorari. But that is only a discretionary execution of the power
of the court. And as the commissioners of bankrupts he said, that
they had only an authority, and not a jurisdiction.
Then exception was taken to the orders, that the money ordered to
be levied was for repairing the wears, to do which they had no
jurisdiction, but only to raise money for the repair of the bridge;
and their authority being special, they ought to confine themselves
within it. But Holt, Chief Justice, held that, in regard that at
the time of the making of the act, these wears were built as necessary
to support the bridge, by virtue of the powers given by the act of
the queen for rebuilding of the bridge, and were esteemed so then
and ever since, this court will esteem them accordingly still; and
TR.ADM. LAW-30
*
*
1
466
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
therefore consequential to the power for rebuilding and repairing of
the bridge, and especially when they are averred to be so in the orders.
And Gould and TURTON, Justices, agreed.
*
* 60
TREASURER OF CITY OF CAMDEN V. MULFORD.
(Supreme Court of New Jersey, 1856.
26 N. J. Law, 49.)
*
*
The CHIEF JUSTICE delivered the opinion of the court.61
This action is brought by the treasurer of the city of Camden to
recover of the defendant the expenses of paving Pine street, in said
city in front of the premises of the defendant,
Whether the ordinances of a municipal corporation are subject
to removal and review by writ of certiorari has recently been ques-
tioned by high judicial authority; and although the point was not
mooted upon the argument of this case, its importance demands con-
sideration. In the case of People v. Mayor, etc., of New York, 2 Hill
(N. Y.) 11, Mr. Justice Bronson, in delivering the opinion of the
court said: "The powers exercised by the common council of the
city of New York are for the most part either legislative, executive,
or judicial, and a certiorari only lies to inferior courts and officers
who exercise judicial powers. If it were not for a few modern cases,
I should be of opinion that we have no authority to supervise in
this way the acts, ordinances, and proceedings of the corporation of
the city of New York, or, indeed, of any other corporation, public
or private. *
All our city and many of our village corpora-
tions have been vested with very large powers within their respective
limits; and, if a certiorari will lie to remove into this court an or-
dinance for constructing a sewer, it is difficult to see where we can
stop short of reviewing all their acts in the same way, which looks
to me like a great stretch of jurisdiction.” In the Matter of Mt.
Morris Square, 2 Hill (N. Y.) 14, it was held by the same learned
court (Mr. Justice Cowen delivering the opinion) that the acts of
municipal corporations, if plainly judicial in their character, may be
reviewed on certiorari. But he said a certiorari to reverse a mere
corporate act is without precedent, though if it should be altogether
*
60 Only a portion of this case is printed.
“There was a mistake made by the commissioners of sewers, grounded upon
this: that where St. 23 Hen. VIII, c. 5, says that the commissioners in several
cases there mentioned shall certify their proceedings into chancery, after-
wards by St. 13 Eliz. c. 9, it is enacted that thereafter the commissioners shall
not be compelled to certify or return their proceedings, which they interpreted
to extend to a certiorari; and thereupon they refused to obey the certiorari,
but they were all committed; and yet the statute does not give authority to
this court (King's Bench] to grant a certiorari, but it is by the common law
that this court will examine, if other courts exceed their jurisdictions."
Groenvelt v. Burwell, 1 Id. Raym. 454, 469 (1699).
61 Only a portion of the opinion is printed.
Ch.8)
467
ACTIONS FOR SPECIFIC RELIEF.
*
*
destitute of authority, and followed by a judicial decision, which
would therefore be void for want of jurisdiction, the corporate act
might be examinable on certiorari, as incidentally vitiating the latter.
The effect of the principle thus stated would seem to be that if
a city ordinance directs a sewer to be built and a street to be paved,
and provides that the expenses of the improvement shall be as-
sessed upon persons benefited, the assessment, being of a judicial
character, may be reviewed on certiorari, and the validity of the
ordinance thus incidentally drawn in question. But if the ordinance
directs not only that the improvement shall be made, but that the
expenses shall be borne by the landholders by or over whose prop-
erty it may pass, the party aggrieved is not entitled to protection by
the writ of certiorari. Whatever inay be the rule upon ti:is subject
adopted in other states, it is certain that the remedy by certiorari
in this state is more extensive and efficacious, and rests upon broader,
and, as we apprehend, upon more reasonable, ground.
Thus it is habitually used as a remedy against unlawful taxa-
tion, either for state, county, township, or city purposes; and while
the remedy has been denied in other states, as dangerous or preju-
dicial to the public welfare, no such evil has been experienced from
the use of the remedy, while it has been found eminently salutary
and efficacious as a protection to private rights against oppressive
and illegal taxation.
One of the most familiar uses of the writ is to test the validity
of the proceedings of surveyors and freeholders in laying out and
confirming of public highways, though, according to some of the
authorities, the laying out of streets and highways is the mere ex-
ercise of municipal or corporate power, without the semblance of
judicial decision.
In the courts of New York and Massachusetts it seems to be well
settled that the certiorari lies only to examine the validity of such
ordinances of a municipal corporation as are of a judicial character,
not such as are legislative or ministerial in their nature.
But as to what constitutes a judicial act the authorities are by no
means agreed. The Supreme Court of New York have repeatedly
held that an ordinance directing a sewer to be built is not a judicial,
but a ministerial, act. In re Mt. Morris Square, 2 Hill 21; People
v. Mayor, etc., of City of New York, 5 Barb. 43; People v. Mayor,
etc., of City of Brooklyn, 9 Barb. 533. And this seems to be the
opinion of Mr. Justice Vredenburgh, in State v. Newark, 25 N. J.
Law, 426. But in Rochester White Lead Co. v. City of Rochester,
3 N. Y. (N. Y.) 467, 53 Am. Dec. 316, Mr. Justice Taylor, in de-
livering the opinion of the Court of Appeals, said the charter of the
city of Rochester confers upon the common council power to cause
common sewers, drains, vaults, and bridges to be made in any part
of the city. The ordinance of the common council directing such
public improvement is judicial in its nature, and extends immunity
*
*
468
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RELIEF AGAINST ADMINISTRATIVE ACTION,
from private action for damages to those who perform the duty.
In Parks v. Boston, 8 Pick. 218, 19 Am. Dec. 322, the Supreme Court
of Massachusetts held that the power vested in the mayor and al-
dermen of Boston, as to laying out or altering streets, whenever,
in their opinion, the safety or convenience of the inhabitants shall
require it, is judicial in its character.62 But this is questioned and
pronounced anomalous by Mr. Justice Cowen in Re Mt. Morris
Square, 2 Hill 22.
The true principle seeins to be that ordinances directing tire mere
repairing or repaving of streets or reconstructing of sewers or bridg-
es, which are enjoined upon municipal corporations as matters of
duty, are purely ministerial, but that ordinances directing new streets
to be opened or altered, new sewers to be constructed, or other
similar public improvements to be made, by which the property of
individuals is taken or affected, are in their nature judicial. So
where a municipal corporation is authorized by ordinance to re-
quire the paving of streets, not as a matter of ordinary repair, but
upon specified conditions only, and to impose the burthen not upon
the city treasury, but upon a specific class of individuals, the ordi-
nance is in its nature judicial. These powers and duties are in
their character very similar, and in many particulars identical with
those imposed by the act of Parliament (21 Hen. VIII, c. 5) upon
the commissioners of sewers in England. The orders of these com-
missioners have always been held to be judicial in their character,
and subject to review by certiorari.
*
* 63
DRAINAGE COM'RS v. GRIFFIN.
* -*
*
(Supreme Court of Illinois, 1890. 134 Ill. 330, 25 N. E. 995.)
BAILEY, J.64 This was a common-law writ of certiorari, brought
to review certain proceedings of the commissioners of the Mason
& Tazewell Special Drainage District.
Said proceedings
resulted in an order by said commissioners enlarging the boundaries
of said district in accordance with the prayer of the petition. Va-
rious of the owners of the land thus annexed presented to the cir-
cuit court of Tazewell county their petition for a certiorari, alleging,
among other things, that the proceedings by which the boundaries
of said district liad been enlarged were irregular, and without juris-
62 In this case the writ of certiorari was allowed.
03 Certiorari allowed to review action in laying out highways in Commis-
sioners of Highways v. Harper, 38 Ill. 103 (1865); People v. Brighton, 20
Mich. 57 (1870); Boston & Maine R. R. v. Folsom, 46 N. H. 64 (1865); State v.
Fond du Lac, 42 Wis. 287 (1877).
Certiorari not allowed to review tax proceedings in Michigan. Whitbeck v.
Hudson, 50 Mich. 86, 14 N. W. 708 (1880).
64 Ouly a portion of the opinion of Bailey, J., is printed.
Ch.8)
469
ACTIONS FOR SPECIFIC RELIEF.
diction or lawful authority on the part of said commissioners, and
praying that the record of said proceedings be brought before said
court, and that said order of annexation to or extension of the
boundaries of said special drainage district, and the entry thereof
in the records of said district, be reversed, set aside, and annulled.
On said petition a writ of certiorari was duly issued and served,
and thereupon said commissioners inade return to said writ by cer-
tifying to said court the record of said proceedings. On inspection
of said record, the court entered judgment quashing the same, and
ordering that it be forever held for naught. Said judgment was
affirmed by the Appellate Court (28 Ill. App. 561), and an appeal
has now been taken to this court.
It is strenuously urged that certiorari is not the proper remedy,
the contention being that the petitioners should have resorted to an
information in the nature of a quo warranto. We need not pause
to determine whether quo warranto would lie or not, as we know of
no rule which, in this case, would make that remedy necessarily ex-
clusive, even if it should be held to be a proper or available remedy.
The only question is whether the alleged defects in the proceedings
for the enlargement of the drainage district are such as can be
reached and remedied by writ of certiorari, and this question is in
no way dependent upon whether a writ of quo warranto might not
also lie to oust the drainage commissioners of their control over the
territory annexed, or to dissolve the organization of the drainage
district so far as it applies to that territory. The writ of certiorari
is a well-known common-law writ, and in England the court of
King's Bench has always been in the practice of awarding it to in-
ferior jurisdictions, commanding them to send up their records for
inspection. By adopting the common law, we have adopted this as
a recognized legal remedy, and in this state any court exercising
general, common-law jurisdiction has, unless expressly forbidden to
do so by the statute, an inherent authority to issue it. People v.
Wilkinson, 13 I11. 660; Miller v. Trustees, 88 I11. 26; 3 Am. & Eng.
Enc. Law, tit. "Certiorari.” Neither in England nor in this state is
it held to be a writ of right, but it issues, in proper cases, only upon
application to the court, on proper cause shown.
We have repeatedly held that said writ may be awarded to all
inferior tribunals and jurisdictions where it appears that they have
exceeded the limits of their jurisdictions, or in cases where they have
proceeded illegally, and no appeal is allowed, and no other mode is
provided for reviewing their proceedings. Gerdes v. Champion, 108
I11. 137; Doolittle v. Railroad Co., 14 Ill. 381; Railroad Co. v.
Whipple, 22 Ill. 105; Railroad Co. v. Fell, 22 Ill. 333. The pur-
pose of the writ is to have the entire record of the inferior tribunal
brought before the superior court to determine whether the former
had jurisdiction, or had exceeded its jurisdiction, or had failed to
proceed according to the essential requirements of the law. The
470
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
It
trial is solely by inspection of the record, no inquiry as to any mat-
ter not appearing by the record being permissible, and, if the want
of jurisdiction or illegality appears by the record, the proper judg-
ment is that the record be quashed.
Undoubtedly, where the controversy involves the investigation of
facts not appearing upon the record, certiorari is not the proper reme-
dy. Thus, if in the present case the right to have the proceedings
by which the lands in question were annexed to the drainage dis-
trict set aside, and the drainage commissioners ousted of the corpo-
rate authority they now claim to exercise over said lands, depended
upon facts which could be established only by evidence de hors the
record, the writ of certiorari would manifestly be of no avail.
may be admitted that in such case quo warranto would be the ex-
clusive remedy. But here the want of jurisdiction, if it exists at
all, appears upon the face of the record. If, then, the proceedings
of the drainage commissioners enlarging the boundaries of the dis-
trict constitute a subject-matter which may be reviewed by certiorari,
that must be held to be an appropriate remedy.
The general rule seems to be that this writ lies only to inferior
tribunals and officers exercising judicial functions, and the act to
be reviewed must be judicial in its nature, and not ministerial or
legislative. Locke v. Lexington, 122 Mass. 290; State v. Mayor,
34 Minn. 250, 25 N. W. 419; In re Wilson, 32 Minn. 145, 19 N. W.
723; Robinson v. Supervisors, 16 Cal. 208; Ex parte Fay, 15 Pick.
(Mass.) 243; Stone v. Mayor, etc., 25 Wend. (N. Y.) 157; Es-
meralda Co. v. District Court, 18 Nev. 438, 5 Pac. 64; Thompson
V. Multnomah Co., 2 Or. 34. But it is not essential that the pro-
ceedings should be strictly and technically "judicial," in the sense
in which that word is used, when applied to courts of justice. It
is sufficient if they are what is sometimes termed "quasi judicial."
The body or officers acting need not constitute a court of justice
in the ordinary sense. If they are invested by the legislature with
the power to decide on the property rights of others, they act judi-
cially in making their decision, whatever may be their public char-
acter. Robinson v. Supervisors, supra.
Thus it is held that this writ lies to review the proceedings of
supervisors, commissioners, city councils, etc., in opening, altering,
or discontinuing public streets and highways as to their legality, or reg-
ularity, though not as to the question of the expediency of such im-
provements. 3 Am. & Eng. Enc. Law, 65, and authorities cited in note
4. So, also, in some states, it has been held, subject to the foregoing
qualification, to be the proper writ to correct illegalities in the levy-
ing of taxes and local assessments by assessors, commissioners, etc.
(Id.), though in this state it has been refused where the defense of
illegality could be made at the hearing of the application for judg-
ment (Pease v. City of Chicago, 21 Ill. 500). The writ has also
been held to lie to review the action of school trustees in uniting
Ch. 8)
471
ACTIONS FOR SPECIFIC RELIEF.
and in dividing school districts (Miller v. Trustees, 88 I11. 26; State
v. Whitford, 54 Wis. 150, 11 N. W. 424); or of a town board in
removing an assessor (Merrick v. Town of Arbela, 41 Mich. 630,
2 N. W. 922); or of a city council in removing a city officer (May-
or v. Shaw, 16 Ga. 172); or of a city council in granting a fer-
ry license (Ex parte Fay, 15 Pick. [Mass.] 243); or of a board
of supervisors in ordering an election to relocate a county seat (Her-
rick v. Carpenter, 54 Iowa, 340, 6 N. W. 574); or of a board of
supervisors in creating the office of clerk of said board, and rais-
ing certain salaries which had been fixed by statute (Robinson v.
Supervisors, 16 Cal. 208). The foregoing are a few of the many
cases where this writ has been held to lie, and sufficiently illustrate
the rules above stated.
The proceedings by which the boundaries of the drainage dis-
trict in question were enlarged by the drainage commissioners were,
at least in most of their important features, judicial in their charac-
ter. The commissioners were required to ascertain and determine
from evidence whether the requisite number of the adult owners of
land in the district had signed the petition for the annexation of
the adjoining lands, and whether the signers were the owners of the
l'equisite proportion of the lands embraced within the district. They
were also required to ascertain and determine from evidence whether
the lands sought to be annexed to the district were involved in the
same system of drainage, and required for outlets the drains of the
district. When these facts were determined judicially, and not till
then, were the commissioners authorized by the statute to enter their
order annexing said lands. From their decision no appeal was giv-
en, nor were any other means provided by the statute for review-
ing their proceedings. In every point of view then the case comes
within that class of cases where certiorari is an appropriate remedy.
But, as the appellants insist that a different rule has been an-
nounced by this court in various of its decisions, we will briefly
consider the cases to which we are referred as sustaining that con-
tention. Renwick v. Hall, 84 Ill. 162, Keigwin v. Commissioners,
115 Ill. 347, 5 N. E. 575, Evans v. Lewis, 121 Ill. 478, 13 N. E.
246, and Samuels v. Commissioners, 125 Ill. 536, 17 N. E. 829,
were all cases in chancery, and it was held that there was no ju-
risdiction in a court of equity, for the reason that there was a com-
plete and adequate remedy at law, and that the legal existence of
the several corporations involved in those cases could be determined
by an information in the nature of a quo warranto. Trumbo v.
People, 75 Ill. 561, People v. Newberry, 87 Ill. 41, Osborn v. Peo-
ple, 103 Ill. 224, and Blake v. People, 109 Ill. 504, were proceedings
for the collection of either school taxes or special assessments, and
the principle decided in those cases was that the various school dis-
tricts and drainage districts in question in those several suits were at
least corporations de facto, and that the legality of the organization
472
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
of a corporation could not be attacked collaterally. Alderman v. Di-
rectors, 91 Ill. 179, was trespass, and the plaintiffs were directors
of a de facto district; and the same rule was there declared. In
Hinze v. People, 92 Ill. 406, it was held that quo warranto would
lie against persons who assume to hold offices supposed to be created
by a law claimed to be invalid by reason of being in contravention
of the Constitution; and in People v. Board, 101 Ill. 308, 40 Am.
Rep. 196, it was held that quo warranto also lies against a corpora-
tion which undertakes to exercise powers which it does not possess.
There is nothing decided in any of these cases which shows or
tends to show the validity of either of the propositions insisted
upon by the appellants in this case. All that is determined by those
cases may be admitted, and yet non constat that the common-law
writ of certiorari does not lie in the present suit. No doubt some
expressions were used in the opinions of several of those cases from
which it might be inferred that an information in the nature of
a quo warranto was the only mode of testing the legality of the
formation of an existing de facto corporation, but that question did
not arise and was not decided in those cases.
However, in the case of Lees v. Commissioners, 125 Ill. 47, 16
N. E. 915, it was expressly held that the common-law writ of cer-
tiorari cannot be resorted to for the purpose of determining whether
a corporation has a legal existence, and that the validity of its or-
ganization can be questioned only by quo warranto. But there is
this marked distinction between that case and this: There the cor-
porate existence itself of a quasi municipal body was sought to be
challenged by certiorari, while here such existence is fully admit-
ted, and the only thing sought to be done is to call in question
the validity of an order of a municipal body admitted to be a cor-
poration both de facto and de jure, extending the boundaries of the
drainage district. It seems eminently proper, and in consonance
alike with the intention of the statute and the rules and analogies
of the common law, that a proceeding, the object of which is to
forfeit or destroy that corporate life which emanates solely from
the sovereign power of the state, should be instituted by the attorney
general or state's attorney of the proper county. It is said, in sec-
tion 778, Ang. & A. Corp., citing in that behalf Rex v. Pasmore,
3 Term R. 244, 245, and Regents, etc., v. Williams, 9 Gill & J. (Md.)
365, 31 Am. Dec. 72, that "a quo warranto is necessary where there
is a body corporate de facto, who take upon themselves to act as
a body corporate, but, from some defect in their constitution, can-
not legally exercise the powers they affect to use."
It appears,
however, from the same section, and from the authorities there cit-
ed, that where there is a legally existing corporation, capable of
acting, which has been guilty of an abuse of power, or of its fran-
chises, then, not only will an information in the nature of a quo
warranto lie, but scire facias as well.
Ch. 8)
473
ACTIONS FOR SPECIFIC RELIEF.
Nor do we perceive any good reason why a municipal body, which
has exceeded its jurisdiction and has proceeded illegally, may not,
on sound legal principles, be proceeded against by quo warranto, by
scire facias, or by the common-law writ of certiorari, indifferently, as
the one or the other may afford a proper and sufficient remedy. All
of these several writs are direct remedies afforded by the law, and,
in respect to neither of them, can it be said that it is a collateral at-
tack upon the legal existence or organization of the corporation. As
has already been suggested, this court has expressly held, in Miller
v. Trustees, 88 Ill. 26, that the common-law writ of certiorari was
an appropriate remedy to bring before the circuit court for review
the proceedings of a board of trustees of schools consolidating two
school-districts into one; and that seems to be going quite as far,
if not further, than is demanded by the requirements of the present
*
*
case.
* 65
ATTORNEY GENERAL v. MAYOR AND ALDERMEN OF
NORTHAMPTON.
(Supreme Judicial Court of Massachusetts, 1887. 143 Mass. 589, 10
N. E. 450.)
ers.
Petition, filed April 12, 1886, by the Attorney General, at the
relation of the civil service commissioners of the commonwealth,
appointed under St. 1884, c. 320, for a writ of certiorari to quash
the proceedings of the respondents in the matter of the appoint-
ment of a police officer of Northampton, said appointment being
alleged to be in violation of the rules prepared by said commission-
The case was heard by W. Allen, J., and reserved for the con-
sideration of the full court.
MORTON, C. J. We are of opinion that the petitioner has mis-
taken his remedy in this case. As was stated by Chief Justice Gray
in Locke v. Selectmen of Lexington, 122 Mass. 290, "a writ of
certiorari lies only to correct the errors and restrain the excesses
of jurisdiction of inferior courts or officers acting judicially."
lies to correct the errors of inferior courts, or judicial officers, act-
ing in proceedings not according to the course of the common law,
and where errors cannot be corrected by appeal, or exceptions, or
by a writ of error. Lynch v. Crosby, 134 Mass. 313.
Thus, it is the proper remedy to revise the proceedings of county
commissioners, or of city councils, or of boards of aldermen, when
they act in matters like the laying out of highways, or making as-
sessments for sewers or other improvements. The reason is that,
in such matters, they act judicially, and not merely as ministerial
65 See Kinsloe v. Pogue, 213 Ill. 302, 72 N. E. 906 (1904), removal of county
seat; Moore v. City Council of Perry, 119 Iowa, 423, 93 N. W. 510 (1903).
474
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RELIEF AGAINST ADMINISTRATIVE ACTION.
or executive officers. Parks v. Boston, 8 Pick. 218, 19 Am. Dec.
322; Fay, Petitioner, 15 Pick, 243; Robbins v. Lexington, 8 Cush.
292; Dwight v. City Council of Springfield, 4 Gray, 107; Lowell
v. County Commissioners, 6 Allen, 131; Farmington River Water
Power Co. v. County Commissioners, 112 Mass. 206; Powers v.
City Council of Springfield, 116 Mass. 84; Snow v. Fitchburg, 136
Mass. 179. Numerous other cases might be cited, and they all go
to show that the uniform rule in this commonwealth is, as we have
stated above, that certiorari will only lie to revise the proceedings
of tribunals or officers acting in a judicial capacity.
The appointment of police officers by the municipal authorities
of a city cannot in any just sense be called a judicial proceeding.
It is an important duty, and, like most administrative duties, in-
volves the exercise of judgment and discretion; but it is adminis-
trative, and not judicial, in its character. No one has the right to
be heard, and their decision is not, within the meaning of the law,
an adjudication or judicial determination of any question or of the
rights of any parties. Opinion of Justices, 138 Mass. 601. .
We are therefore of opinion that certiorari is not the proper rem-
edy. In this proceeding, it would not be in our power to afford the
redress which the petitioner asks.
Petition dismissed.66
66 Accord: People ex rel. McDonald v. Bush, 40 Cal. 344 (1870). But see
Wildy v. Washburn (N. Y.) 16 Johns. 49 (1819).
Compare People ex rel. Mack v. Burt, 170 N. Y. 620, 63 N. E. 1121 (1902),
affirming without opinion 72 N. Y. Supp. 567 (1901), holding action of civil
service commissioners in classifying or not classifying places in the civil serv-
ice to be administrative and not reviewable by certiorari, with People ex rel.
Sims v. Collier, 175 N. Y. 196, 67 N. E. 309 (1903), holding action in rating
position as competitive or noncompetitive to be judicial, and not controllable
by mandamus. In the latter case the court says: “That such decisions are
reviewable by the courts must be regarded as settled, for the question wheth-
er competitive examinations for appointment to particular places are practi-
cable or not has been held to be a question of law, to be decided in the
light of the facts and the evidence bearing upon the subject."
“The board of health did act, and had a right to act, upon its own inspec-
tion and knowledge of the alleged nuisance. It was not obliged to hear any
party. It could obtain its information from any source and in any way, and
hence its determination upon the question of nuisance is not reviewable by
certiorari.” People ex rel. Copcutt v. Board of Health of City of Yonkers, 140
V. Y. 1, 10, 35 N. E. 320, 323, 23 L. R. A. 481, 37 Am. St. Rep. 522 (1893).
So, also, Hartman v. Wilmington, 1 Marv. (Del.) 215, 41 Atl. 74 (1894).
Selection of site for institution illegally delegated to committee of super-
visors not reviewable on certiorari. People v. Supervisors of St. Lawrence
Co., 25 Hun (N. Y.) 131 (1881).
Certiorari to review action of railroad commission, see People ex rel.
Loughran v. Railroad Commissioners, 158 N. Y. 421, 53 N. E. 163 (1899),
consent to discontinuance of station; People ex rel. Steward v. Board of
Railroad Commissioners, 160 N. Y. 202, 54 N. E. 697 (1899), consent to build-
ing railroad.
Ch.8)
475
ACTIONS FOR SPECIFIC RELIEF.
SECTION 58.-SAME-SCOPE OF REVIEW; WHAT KINDS
OF ERROR CORRECTED
**
JACKSON v. PEOPLE.
(Supreme Court of Michigan, 1860. 9 Mich. 111, 77 Am. Dec. 491.)
Certiorari to the recorder's court of the city of Detroit, where
Jackson was convicted on a complaint for obstructing an alley in
said city.
CAMPBELL, J. 67 The first question which arises is, how far are we
at liberty to look into the proceedings returned by the recorder's
court, to ascertain whether the recorder erred in any respect within
our supervisory control?
It is claimed on behalf of the people that, upon a certiorari at com-
mon law, the only thing to be determined is whether the court be-
low had jurisdiction, and that if jurisdiction existed the discretion-
ary power of the court cannot be inquired into. And it is further
claimed that the jurisdiction depends upon the subject-matter of the
complaint. Applying this rule to the case before us, it is insisted
that the recorder's court has jurisdiction of all complaints for ob-
structing alleys, and that, this jurisdiction being called into exercise
by such a complaint, its proceedings thenceforth are not examinable
unless an unauthorized judgment is given beyond the one allowed by
law. As the same immunity from review applies to all special tri-
bunals not acting according to the course of the common law, it
becomes very important to ascertain how far this doctrine is cor-
rect; for, if true, it certainly gives them an extent of authority
over persons and property not possessed by any of the higher courts.
There are certain classes of questions which, by the common un-
derstanding from time immemorial, belong to the course of judicial
inquiry under the laws of the land. The common law, and the va-
rious charters and bills of rights, recognized and assured the right
to such an inquiry. And the Constitution of this state, in appor-
tioning the judicial power, as well as in affirming the immunity of
life, liberty and property, las always been understood to guarantee
to each citizen the right to have his title to property and other legal
privileges determined by the general tribunals of the state. These
municipal courts, so far as they act under city by-laws, are not de-
signed to decide between man and man, or to administer general
laws. They are ordained to prevent disorder in matters of local
convenience, and to regulate the use of public and quasi public
easements so as to prevent confusion. If, in exercising this power,
67 Only a portion of this case is printed.
476
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
they can incidentally decide upon the rights of private property, so
as to determine its enjoyment without review, there would seem to
be a practical annihilation of the right to resort to the general tri-
bunals and the common law. The consequences of such a doctrine,
whether correct or incorrect, are serious enough to render it our
duty to examine very carefully into its foundations.
The power of reviewing upon certiorari judicial proceedings of
inferior tribunals and bodies not according to the course of the com-
mon law has long been exercised in England, as well as in this
country. The power has been jealously maintained, and has been
deemed necessary to prevent oppression. It must be apparent to
any one that if the superior court could only examine into the right
of the inferior one to enter upon an inquiry, without reference to
the manner in which that inquiry is conducted, this reinedy would
be of small account.
In New York, a series of decisions have appeared from time to
time, asserting that when certiorari is given by statute it lies to
correct any legal mistakes, but where issued as at common law it
can only review the jurisdiction of the court below. It is unneces-
sary to refer particularly to these authorities, inasmuch as in More-
wood v. Hollister, 6 N. Y. 309, this distinction seems to be regarded
as unfounded, and the office of the writ is considered as reaching all
errors of law. We have examined with much care all the English
authorities within reach bearing upon this subject, and have found
nothing whatever to give color to such a distinction. There are,
indeed, cases where a certiorari lies to examine errors generally,
and others where it lies only to inquire into the jurisdiction; but
the distinction arises out of very different considerations. This will
appear by reference to some of the cases in which questions of ju-
risdiction have been reviewed.
There are many statutes in England which, not only in large
classes of summary convictions, but also in special proceedings for
condemning lands, and for other purposes, take away, in express
terms or by acknowledged implication, the right to a certiorari, which
otherwise existed. In some cases an appeal lies to review the whole
proceeding; in others, it is subject to no further examination on the
merits. In all these cases it is held that a statute taking away the
right to a certiorari does not deprive the aggrieved party of the
right to sue out such a writ where the proceeding has been with-
out jurisdiction. And the want of jurisdiction, when arising from
matters not appearing in any way on the proceedings, may even be
shown aliunde by the affidavits. 8 Ad. & El. 413; 11 Ad. & El.
194; 5 B. & C. 816; 10 B. & C. 477; 5 Ad. & El. 626; 2 Man.
& Ry. 397; 13 Q. B. 988; 15 Q. B. 121. *
If certiorari will lie for want of jurisdiction in cases where the
common-law remedy of certiorari, in its usual acceptation, is express-
ly or confessedly taken away, it follows as an unavoidable conclu-
*
Ch.8)
477
ACTIONS FOR SPECIFIC RELIEF.
sion that the usual office of the common-law writ is to inquire in-
to something more than jurisdiction. This may be made more plain by
examining what is required to be returned.
It was held in Rex v. Killett, 4 Burr. 2063, that it is necessary
to set out the evidence upon a conviction, that the court may judge
whether the justices have done right.68 And in Rex v. Read, 2
Doug. 486, it was held that a conviction is bad unless it does set
forth the evidence. The same doctrine is laid down in Rex v. Clarke,
8 T. R. 220; Rex v. Smith, 8 T. R. 588; Regina v. Tuck, 10 2
Q.
B. 540. And where the evidence set out is not sufficient to justify
a conviction, or other judicial act complained of, it will be quashed
on certiorari. 8 T. R. 588; 3 B. & Ald. 596; 2 Chit. 578; Cowp.
1728; 2 B. & Ald. 378; 6 T. R. 177; 4 Ad. & El. 216; 4 Ad. &
El. 205; 3 Q. B. 790.
The office of a certiorari is not, however, to review questions of
fact, but questions of law. And in examining into the evidence
the appellate court does so, not to determine whether the probabili-
ties preponderate one way or the other, but simply to determine
whether the evidence is such that it will justify the finding as a
legitimate inference from the facts proved, whether that inference
Would or would not have been drawn by the appellate tribunal. It
is said in The King v. Daman, 2 B. & Ald. 378, that "all the facts
necessary to subject the party to the penalty imposed by the act of
Parliament must appear upon the information, and be established
by proof.” And in The King v. Davis, 6 T. R. 177, it is said: "It
is sufficient in convictions if there were such evidence before the
magistrates as in an 'action would be sufficient to be left to a jury."
The same principles are recognized in the other cases above cited;
also in Rex y. Glossop, 4 B. & Ald. 616, and Regina v. Bolton, 1
Q. B. 67.
Where facts exist which, if apparent, would have ousted the ju-
risdiction, they have been allowed to be set forth in the affidavits
of the relator, and a response required. Instances of this occur
where the magistrate acting was disqualified by interest or other
similar cause. 1 2. B. 67; 1 Q. B. 467; 6 Q. B. 753. And in
Regina v. Gillyard, 12 Q. B. 527, a conviction was quashed, although
perfectly regular, because it was made to appear that it was obtain-
ed fraudulently.
The same principles which require a conviction to be quashed
when upon the facts and the law applicable to them the case is in-
sufficient to justify it would seem to require that rulings of law
upon the admission or exclusion of evidence should be reviewed.
And such we find to have been the practice. In the case of Regina
v. Cheltenham Com’rs, 1 Q. B. 467, the rate conplained of was
68 The case adds: “But upon an order it is not necessary, because the
court will presume that they have done right."
478
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
quashed because certain interested magistrates voted upon the ad-
mission of evidence, the court holding this a decision which might
have had an important influence upon the result, and therefore suffi-
cient to avoid the whole action, whether the interested magistrates
took any further part or not. And in this case the statute had ex-
pressly taken away the writ of certiorari; and it was issued, and the
case decided, on the ground that the question from its bearing be-
came one of jurisdiction. And in Regina v. Justices of Hertford-
shire, 6 Q. B. 754, the proceedings were quashed because an inter-
ested magistrate had sat during a portion of them, although he with-
drew before they were completed. The questions of law arising
either upon the admission of evidence, or the other rulings in the
proceedings, must always have a bearing on the result, and the
appellate court cannot, generally, at least, assume that any of them
have not contributed to it. In Regina v. Justices of Staffordshire,
30 Eng. L. & Eq. 402, where certiorari was expressly taken away
by statute, a writ was allowed, and a conviction under a local by-
law quashed, because the justices had ruled that an approval of the
by-law by the Secretary of State made it binding, and therefore
refused to consider its validity. The Court of Queen's Bench held
the by-law invalid, and so quashed the conviction.
We are therefore of opinion that the return to the certiorari is
all properly before us, and that the law contemplates that it shall
be full, both upon the evidence and upon the decisions and rul-
* 69
ings. *
PEOPLE ex rel. CITIZENS' GAS LIGHT CO. OF BROOKLYN
v. BOARD OF ASSESSORS OF CITY OF BROOKLYN.
(Court of Appeals of New York, 1868. 39 N. Y. 81.)
* *
MASON, J.70. *
The office of this writ of certiorari, when
issued out of the Supreme Court to review the proceedings and de-
termination of inferior tribunals, has fixed limits that may be re-
garded as settled by the adjudged cases in this state, although it
must be conceded that there is great conflict in the decisions when
we get beyond a certain point in the functions of the writ. I think
we may safely say that the following rule may be deduced from ad-
judged cases in this state, viz.: That its office extends, unques-
tionably, to the review of all questions of jurisdiction, power and
authority of the inferior tribunal to do the acts complained of, and
all questions of regularity in the proceedings; that is, all questions
whether the inferior tribunal has kept within the boundaries pre-
69 That a provision taking away certiorari does not apply where there is
a clear absence of jurisdiction, see Ex parte Bradlaugh, 3 Q. B. D. 509 (1878).
70 Only a portion of the opinion of Mason, J., is printed.
Ch. 8)
479
ACTIONS FOR SPECIFIC RELIEF.
*
scribed for it by the express terms of the statute law or by well-
settled principles of the common law.
I cannot assent to the proposition that when the Supreme Court
have issued the writ, heard the case upon the return, and have com-
mitted a plain error in law, and have come to the conclusion, er-
roneously, as in this case, that the assessors have kept within the
boundaries prescribed by the statutes, and therefore hold that the
relators can take nothing by the writ, and give judgment quashing
the writ--that such judgment is not subject to review in this court.
The judgment of the Supreme Court, in such a case, is not rendered
upon the ground that the proceedings ought not to be reviewed by
the writ, or that it was improvidently issued, but upon the ground
that the allegations of error have not been sustained in the given
Since the decision of the several suits growing out of the
tax assessments in the city of Poughkeepsie, 71 there is no redress
to the citizen against illegal assessments like this, if it is not afforded
upon this common-law writ of certiorari, which it certainly can be,
so far as to require the assessors to keep within the rules of law,
and comply with terms prescribed by the statute.
case.
*
*
* 72
PEOPLE ex rel. BODINE v. GOODWIN et al.
(Court of Appeals of New York, 1851. 5 N. Y. 568.)
owner.
RUGGLES, C. J.73 Neither the commissioners of highways, nor the
referees on appeal from their decision, have power to lay out a road
public or private through any building without the consent of the
1 Rev. St. p. 502, § 3, and page 513, § 57. There was a
barn standing on the land laid out for the highway in controversy;
and unless the owner's consent was given that the highway should
be so laid out, the referees in laying it out acted without authority,
and their proceedings were void for want of jurisdiction. Clark v.
Phelps, 4 Cow. 190. Inferior magistrates, when required by writ of
certiorari to return their proceedings, must show affirmatively that
they had authority to act; and where, as in the present case, their
authority and jurisdiction depend upon a fact to be proved before
themselves, and such fact be disputed, the magistrate must certify
the proofs in relation to it, for the purpose of enabling the higher
court to determine whether the fact be established. The decision
of the magistrate in relation to all other facts is final and conclu-
71 See Foster v. Van Wyck, 2 Abb. Dec. (N. Y:) 167 (1867), denying rem-
edy against the assessors and collector, and Swift v. Poughkeepsie, 37 N. Y.
511 (1867), denying remedy against the city on implied contract.
72 See Milwaukee Iron Co. v. Schubel, 29 Wis. 444, 9 Am. Rep. 591 (1872).
73 Only a portion of the opinion of Ruggles, C. J., is printed.
480
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
sive, and will not be reviewed on a common-law certiorari.?4 But
the main object of this writ being to confine the action of inferior
officers within the limits of these delegated powers, the reviewing
court must necessarily re-examine, if required, the decision of the
magistrate on all questions on which his jurisdiction depends, wheth-
er of law or of fact. The evidence, therefore, to prove the consent
of the owner of the land to the laying out of the road, was properly
stated on the return, and is properly examinable here.
*
* 75
PEOPLE ex rel. COOK V. BOARD OF POLICE OF METRO-
POLITAN POLICE DISTRICT OF STATE OF
NEW YORK.
(Court of Appeals of New York, 1868.
39 N. Y. 506.)
Appeal from judgment of the Supreme Court in General Term
of the First District, affirming a judgment of the Special Term on
certiorari, by which a judgment or order of the appellants, impos-
ing a fine upon the relator, was reversed and annulled.
The relator was a member of the police force of the Metropolitan
police district, and patrolman of the Ninth precinct, and it appeared
by the return, that, on the 19th of January, 1863, a charge of neg-
lect of duty was preferred against him, the specification of which was
absence from duty, and from the station house of the Ninth pre-
cinct, from October 26, 1861, to the Sth day of January, 1863—a
period of 439 days. Upon this he was tried by the appellants, and,
on the 14th of February, 1863, the judgment of the board was pro-
nounced, whereby they find him guilty of the matters charged, and
therefore order and adjudge that he be fined the amount of 439
days' pay, and that his pay for that number of days be, and the same
is, hereby forfeited.
In obedience to the precept of the certiorari, the return of the
appellants set out the charge, the notice thereof to the relator, and
the requirement to appear and answer, and notice of the time and
place of trial, the relator's written admission of due personal serv-
ice upon him of the complaint, charges, specifications and notice of
trial, and also the testimony and proofs taken on the trial, certain
74 See, however, People v. Board of Police, 39 N. Y. 506 (1868), post,
P. 480.
70 Accord: Whitney v. Board of Delegates, 14 Cal. 479, 500 (1860); Stumpf
1. Board of Sup'rs. 131 Cal. 364, 63 Pac. 663, 82 Am. St. Rep. 350 (1901);
Stone v. Miller, 60 Iowa, 243, 14 N. W. 781 (1.882).
Contra: Chicago & Rock Island R. Co. v. Whipple, 22 Ill. 105, 108 (1859):
"It is not the practice to ascertain from extrinsic evidence whether the in-
ferior court had jurisdiction or had proceeded according to law, but to de-
termine these questions by the record.” Whittaker V.. Venice, 150 Ill. 195,
203, 37 N. E. 240 (1894).
Ch.8)
481
ACTIONS FOR SPECIFIC RELIEF.
of the rules and regulations of the appellants, with the finding and
judgment of the appellants, convicting him of the charge, and im-
posing the fine. The case is certified to have closed on the 10th of
February; the judgment was rendered on the 14th.
WOODRUFF, J.76 The 'board of police for the Metropolitan dis-
trict had jurisdiction of the subject-matter of the charge, of the
charge itself, and of the person of the relator who appeared on the
trial before them. It is not objected that the judgment is not such
as, upon due conviction, they had authority to pronounce and carry
into effect.
The question thereupon arises, which I think the principal ques-
tion on this appeal, may the court, on a common-law certiorari, go
beyond the inquiry whether the inferior tribunal had jurisdiction,
and was the proceeding and judgment within that jurisdiction? Oth-
er questions, it is true, were raised and discussed'; but, in the view
that I take of the case, it will be unnecessary to consider them.
Some of them, in my judgment, are mere questions of form or prac-
tice, which are clearly not open to review.
It is insisted that, on the trial, there was no evidence that the re-
lator was guilty of the offense charged; that the actual facts were
undisputed; that the alleged neglect of duty, and the only neglect
of duty in any wise appearing, was his absence during the period
of his dismissal from the force; and that it was error in law to hold
that an offense, and convict and pronounce judgment thereupon.
If, as insisted by the appellants, the court cannot, on certiorari,
look into the evidence, nor the rulings thereupon, with a view to
the correction of errors in law committed on the trial, then the particu-
lar facts upon which the finding of guilty was based cannot be consid-
ered. Jurisdiction appearing, and the judgment being within that ju-
risdiction, the judgment is to be deemed, on this certiorari, conclusive.
It has often been said that a common-law certiorari brings up the rec-
ord only, and not the evidence, which forms no part of the record, and,
if so, then the circumstance that, in the particular case, the inferior tri-
bunal was required by the writ to return, and did return, the evidence,
does not enlarge the field of review, or bring any other than juris-
dictional questions under examination.
That this is the extent and limit of the review by a common-law
certiorari was many times stated in the former Supreme Court, and,
has been often stated in the present Supreme Court.
It
would be idle to attempt to harmonize the various decisions and dicta
above referred to.
It is true that the court in the later cases has taken a more liberal
view of the office of a common-law certiorari, and the power of re-
view thereby, than was expressed by the Supreme Court during many
*
76 Only a portion of the opinion is printed.
FR. ADM. LAW-31
.
(Part 2
482
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
*
years.
My own conviction of the importance of the ques-
tion, in view of the great number of proceedings of a summary char-
acter in which powers are exercised which affect valuable rights both
of person and property, has led me to collect and compare the more
prominent cases on this subject; and I cannot resist the belief that a
disposition has been manifested to limit the office of this most use-
ful writ within too narrow limits.
Let it be once established that where an officer or board of officers
have jurisdiction of the subject or of the persons to be affected, and
proceed in its exercise according to the prescribed mode or forms,
their determination is final and beyond the reach of any review, what-
ever errors in law they may commit, and however clear it may be upon
undisputed facts that their judgment, decision or order is not war-
ranted, and there is danger that much of injustice and wrong may
happen without possibility of redress.
On the other hand, to hold that conclusions of fact upon conflicting
evidence and matters of mere detail, in the order or mode of proceed-
ing, not violating any rule of law to the prejudice of the party, and
matters which are clearly submitted to the judgment or discretion of
the inferior tribunal, where the evidence presents a case for its exer-
cise, can be so reviewed, would be in conflict with all of the previous
adjudications, and produce great inconvenience and embarrassment.
It may be desirable not to multiply cases in which the appellate
courts can be called upon to interfere in matters of small importance,
but that furnishes no reason for denying the power to see that the
rules of law are not violated, when wrong is done, and no great
public inconvenience will result from its exercise.
I conclude, therefore, that in the case before us the Supreme Court
had power, and that on this appeal this court have power, to examine
the case upon the whole of the evidence, to see whether, as a matter
of law, there was any proof which could warrant a conviction of the
relator, of the charge of neglect of duty, by absence from duty as a
patrolman of the Ninth precinct, from the 26th of October, 1861, to
the 8th of January, 1863.
If there was no evidence of neglect of duty—if the case was such at
the close of the trial that it would have been erroneous to submit
the question to the jury, were the like question before a jury in an
ordinary action—then the error is an error in law, and the conviction
was illegal. It rests upon no finding of facts upon evidence tending
to sustain such finding; but as matter of law the relator was entitled
to be acquitted of the charge.
*
* 77
77 Accord : Milwaukee Iron Co. v. Schubel, 29 Wis 444, 9 Am. Rep. 591
(1872).
Arnoux, J., in Matter of Lauterjung, 48 N. Y. Super. Ot. 308. (1882), said:
“Until the decision of the Court of Appeals in the year 1868, in the case
of People ex rel. Cook v. Board of Police, 39 N. Y. 506 (in which Judge Ar-
noux was counsel for the relator), the tendency of the courts in certiorari
cases was to refuse to examine into the evidence or to determine any ques-
Ch. 8)
483
ACTIONS FOR SPECIFIC RELIEF.
NEW YORK CODE OF CIVIL PROCEDURE, $$ 2122, 2140,
2141.
Sec. 2122. Except as otherwise expressly prescribed by a statute,
a writ of certiorari cannot be issued in either of the following cases :
1. To review a determination which does not finally determine the
rights of the parties, with respect to the matter to be reviewed;
2. Where the determination can be adequately reviewed, by an ap-
peal to a court or to some other body or officer;
3. Where the body or officer making the determination is express-
ly authorized by statute to rehear the matter, upon the relator's ap-
plication; unless the determination to be reviewed was made upon a
rehearing, or the time within which the relator can procure a rehear-
ing has elapsed.
Sec. 2140. The questions, involving the merits, to be determined
by the court upon the hearing, are the following, only:
1. Whether the body or officer had jurisdiction of the subject-mat-
ter of the determination under review;
2. Whether the authority, conferred upon the body or officer, in
relation to that subject-matter, has been pursued in the mode required
by law, in order to authorize it or him to make the dietermination;
3. Whether in making the determination, any rule of law, affecting
the rights of the parties thereto, has been violated, to the prejudice
of the relator;
4. Whether there was any competent proof of all the facts, neces-
sary to be proved, in order to authorize the making of the determina-
tion;
5. If there was such proof, whether there was, upon all the evi-
dence, such a preponderance of proof, against the existence of any of
those facts, that the verdict of a jury, affirming the existence there-
of, rendered in an action in the Supreme Court, triable by a jury,
would be set aside by the court, as against the weight of evidence.
Sec. 2141. The court, upon the hearing, may make a final order,
annulling or confirming, wholly or partly, or modifying, the determi-
nation reviewed, as to any or all of the parties.is
tion beyond that of jurisdiction. This permitted inferior tribunals and magis-
trates to exercise their powers in an arbitrary, high-handed and unjusti-
fiable manner, and made them more absolute than any court of original ju-
i risdiction. The case above cited brought to the attention of the court an
illustration of the despotic action that such boards may take when beyond
the reach of review.
There able counsel contended that the court
was bound by the record. This question was examined with exhaustive re-
search by that distinguished ornament of the bench, the late Judge Wood-
ruff, and the able opinion that he wrote, unanimously concurred in by the
other judges of the court, marks a new departure in the law relating to
certiorari in this state."
78 See People ex rel. McAleer v. Trench, 119 N. Y. 502, 507, 508, 23 N. E.
1061 (1890).
As to certiorari in connection with taxation, under statute, see People ex
484
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
DOLAN'S APPEAL.
(Supreme Court of Pennsylvania, 1885. 108 Pa. 564.)
This was an appeal and certiorari taken by James Dolan from an
order of said court revoking a license duly granted to him to sell in-
toxicating liquors.
Mr. Justice STERRETT delivered the opinion of the court.
It appears from the docket entries of the court below that on March
10, 1884, James Dolan was licensed to keep a hotel, and on the 17th
of the same month he was ruled "to show cause why the license
granted to him should not be revoked." Service of the rule was duly
accepted by his attorney, testimony was taken, and the case set down
for argument. After several continuances, it was heard and held
under advisement, and on May 27th the rule to show cause, etc., was
made absolute. On the following day Dolan made affidavit, entered
into recognizance with sureties, etc., and appealed from the order of
court revoking his license. A few days thereafter a writ of certio-
rari, to remove the record, was received and filed. With the exception
of the original petition for license, the foregoing is a correct sum-
mary of the facts exhibited by the record presented to us for review.
It is scarcely necessary to say that no appeal is given in such cases,
and, if it were not for the fact that we may review the proceeding on
the writ of certiorari, the case might be summarily disposed of by
quashing the appeal.
In considering the case on the certiorari, we are necessarily re-
stricted to what appears on the face of the record proper. If mani-
rel. Manhattan R. Co. v. Barker, 152 N. Y. 417, 946 N. E. 875 (1897), and an
article by Julian T. Davies, 1 Columbia Law Review, p. 419.
"Here we must take note of the difference between jurisdictional error as
to a court proceeding according to the course of the commou law and such
error as to a mere tribunal exercising quasi judicial authority. In the form-
er, jurisdiction of the party and subject-matter being established, the de-
termination cannot be successfully challenged for such error, though the
basic questions of fact rest upon insufficient evidence, or have no founda-
tion whatever therein. The judgment in such circumstances may be errone-
ous, but not reversible upon writ of certiorari for jurisdictional defect. In
the latter, a clear violation of law in reaching a result within the power
of the tribunal to reach proceeding properly is jurisdictional error. In the
former, the evidence is not reviewable at all. In the latter, it may be re-
viewed, but only to the extent of determining whether there is evidence up-
on which the tribunal could reasonably and honestly have reached the con-
clusion which it did. The evidence cannot be weighed for the purpose of
determining whether the same clearly preponderates against the decision.
It may be looked into only to see whether there was competent evidence suf-
ficient, in reason, to incline the mind efficiently to the conclusion reached.
In the first a conclusion without any credible evidence to support it, or any
evidence at all, is mere judicial error. In the second, want of credible ev-
idence which, in case of the verdict of a jury, would be sufficient upon ap-
peal to require a reversal is jurisdictional error-error committed outside
of jurisdiction, instead of in the exercise of jurisdiction, where the writ takes
hold, performing its function of returning the tribunal to its proper sphere
of action." State ex rel. Milwaukee Medical College y. Chittenden, 127 Wis.
468, 107 N. W. 500 (1906).
Ch.8)
485
ACTIONS FOR SPECIFIC RELIEF.
fest error does not there appear, the order complained of must be
affirmed. The testimony, remonstrances, etc., brought up with the
record, form no part thereof, and cannot be resorted to for any pur-
pose. Peet v. City of Pittsburgh, 96 Pa. 218.
If the court of quarter sessions had jurisdiction of the subject-
matter and the plaintiff in error had his day in court, it must be pre-
sumed, until the contrary appears by the record, that the proceedings
were regular. Omnia præsumunter rite esse acta. .
The act of March 22, 1867 (Purd. Dig. p. 945, pl. 29), provides
that it shall be lawful for the courts of quarter sessions "to hear
petitions, in addition to that of the applicant, in favor of and renion-
strances against the application for such license, and in all cases to
refuse the same whenever, in the opinion of said court, having due
regard to the number and character of the petitioners for and against
such application, such license is not necessary for the accommodation
of the public, and entertainment of strangers and travelers; and, up-
on sufficient cause being shown, the said courts shall have power to
revoke any license granted by them." The court therefore had juris-
diction of the subject; it had the power, "upon sufficient cause be-
ing shown," to revoke the license which it had granted to plaintiff
in error. He was duly brought into court, testimony was taken, and,
as the record shows, after hearing and due consideration the court,
in the exercise of the discretion with which it was invested, revoked
the license. If there was anything on the face of the record to show
affirmatively that the court acted arbitrarily and without cause, or
that the cause shown was wholly insufficient, it would exhibit such
an abuse of discretion as would demand a reversal of the order com-
plained of; but nothing of the kind appears in the record before us,
and we have no right to go outside in search of something on which
to convict the court below of error, nor do we feel disposed to do so.
Appeal quashed, and order revoking the license granted to plain-
tiff in error affirmied.
PEOPLE ex rel. MALONEY V. LINDBLOM.
(Supreme Court of Illinois, 1899. 182 Ill. 241, 55 N. E. 358.)
Appeal from the circuit court of Cook county.
Petition for a common-law writ of certiorari, brought in the name
of the People, on the relation of John Maloney, against Robert
Lindblom, Edward Carroll, and John W. Ludwig, Civil Service Com-
missioners.
Mr. Justice CRAIG delivered the opinion of the court.
It will be observed upon an examination of the prayer of the peti-
tion that the petitioner asks that the certification of Aaron L. Brown
may be rescinded and revoked, and that the name of the petitioner,
John Maloney, may be certified by the commission to the commissioner
486
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
of public works in lieu of the name of Aaron L. Brown. It is ap-
parent from the prayer of the petitioner that the scope and purpose
of a common-law writ of certiorari are misconceived by him. This
is not a proceeding in which the certification of Brown by the civil
service commission can be set aside by the court, and the petitioner,
John Maloney, placed in his stead, nor is it a contest in which the
right of one of the parties to the place in question may be set aside
and the other sustained. The only office of the writ of certiorari is
to bring before the court the record of the proceedings of the inferior
tribunal for inspection, and the only judgment to be rendered is that
the writ be quashed or that the record of the proceedings be quashed.
Chicago & Rock Island Railroad Co. v. Fell, 22 Ill. 333.
The petitioner seems to be laboring under another misconception
in regard to his rights and the power of the court in a proceeding of
this character. The inferior tribunal, where the record is brought be-
fore the court by writ of certiorari, may have erred in its rulings on
questions of law during the progress of the trial, or it may have erred
in the application of the law to the facts in reaching its final judg-
ment, and yet those errors cannot be reviewed and corrected in a pro-
ceeding of this character. On a return to a writ bringing the record
before the court the only proper inquiry is whether the inferior tri-
bunal had jurisdiction and proceeded legally-i. e., followed the form
of proceedings legally applicable in such cases—and not whether it
correctly decided the questions arising upon the admission or ex-
clusion of evidence, the giving and refusing of instructions, and other
like questions, during the progress of the trial. The rulings of a
court may be erroneous and yet it may have jurisdiction and proceed
legally. Hamilton v. Town of Harwood," 113 Ill. 154. The rule
announced in the case cited has been fully sustained by other cases.
Donahue v. County of Will, 100 Ill. 94; Scates v. Chicago & North-
western Railway Co., 104 111. 93. Here the jurisdiction of the civil
service commission is not disputed, and it is apparent that the tribu-
nal proceeded according to the forins of law applicable in such cases.
But it is said that the civil service commission made an erroneous
decision in holding that Aaron L. Brown, who was engaged in the
military service of the United States in 1861 and who had been
honorably discharged, was entitled to preference under section 1012
of the act of 1897, as the section of the act was unconstitutional. It
may be true that the civil service commission erred in its ruling on the
hearing, but that is a question which cannot be inquired into by writ
of certiorari. The civil service commission had jurisdiction and it
proceeded according to the forms of law, and if that tribunal made
a mistake in holding that the act of the Legislature was valid,
and the facts presented brought Aaron L. Brown within the terms
of the act which entitled him to a preference over the petitioner,
the ruling of the tribunal was mere error, which cannot be reviewed
in this proceeding.
.
A
Ch.8)
487
ACTIONS FOR SPECIFIC RELIEF.
We think the judgment of the court quashing the writ was cor-
rect, and it will be affirmed.
Judgment affirmed.79
POWELL v. BULLIS.
*
*
*
(Supreme Court of Illinois, 1906. 221 Ill. 379, 77 N. E. 575.)
Certiorari to review the action of the civil service commission of
Chicago in removing Bullis as a patrolman from the police force.
HAND, J.80
The main reason urged by appellee as
grounds for sustaining the judgment of the lower courts is that the
record filed as a return to the writ does not show that Bullis was
notified of the time and place fixed by the civil service commission
for a hearing upon the charges preferred against him, or that he
waived notice of the time and place of hearing by appearing before
said police trial board or otherwise. Section 12 of the civil service
act (Hurd's Rev. St. 1903, c. 24, § 457) provides: “No officer or em-
ployé in the classified civil service
sliall be removed or
discharged except for cause, upon written charges and after an op-
portunity to be heard in his own defense.” And section 1 of rule
8 of the civil service commission provides: "The commission shall
cause notice in writing to be personally served on the accused, or to
be mailed to him at his own address, as shown by the records of the
commission, stating the time (which shall not be less than five days
after the service or inailing of such notice) and place when and
where such charges will be investigated, and shall give the accused an
opportunity to be heard in his own defense at such investigation.”
The giving or waiver of such notice was clearly jurisdictional
(Commissioners of Highways v. Smith, 217 Ill. 250, 75 N. E. 396),
and as the court could only determine that question from an examina-
tion of the record filed as a return to the writ (Joyce v. City of Chi-
cago, supra [216 Ill. 471, 75 N. E. 184]), and the record failed to
show that Bullis had been notified or waived notice of the time and
place of his hearing upon the charges preferred against him, we think
the police trial board was without power to hear the charges made
against him or the civil service commission to approve the same and
order him discharged as a patrolman from the police force of the
city of Chicago, and that the trial court properly quashed the proceed-
ings of the commission.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed. 81
79 See, also, Kammann v. Chicago, 222 Ill. 63, 78 N. E. 16 (1906).
so Only a portion of the opinion of Hand, J., is here printed. The court
first holds that the writ may be issued where personal rights are involved as
well as where property rights are involved.
81 Accord: Lantz v. Hightstown, 46 N. J. Law, 102 (1884); Common Coun-
cil of Oshkosh v. State, 59 Wis. 425, 18 N. W. 32+ (1884).
488
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
PEOPLE ex rel. DELAWARE & H. CANAL CO. V. PARKER
et al.
(Court of Appeals of New York, 1889. 117 N. Y. 86, 22 N. E. 752.)
Appeal from Supreme Court, General Term, Third Department.
FINCH, J. The relator complains of the judgment of the General
Term, which dismissed its writ of certiorari issued under the act of
1880.82 The illegality which was asserted as sufficient to invalidate
and annul the assessment upon its corporate property was founded
upon an inquiry into the title of the assessors to their office, and a
denial of their right to act as such at all. The trial court found
that the two who alone made up and certified the roll were not in
truth assessors, either de jure or de facto.' Assuming that to be
true, the appellate court nevertheless held that the wrong could not
be redressed in the proceeding adopted, and we agree with that
conclusion.
The function of the writ of certiorari is to review the judicial action
of inferior officers or tribunals. It assumes their existence, and the
fact of official action, but draws in question the legality or correctness
of that action. It is wholly unsuited to a case in which there is no
officer and no tribunal, and where, as a consequence, there could not
have been any judicial action, or anything to review. In People v.
Covert, 1 Hill, 674, that doctrine was settled in an opinion unusually
brief and curt, but which touched the precise difficulty. It is said of
that case, and of others like it, that they dealt only with a common-
law certiorari; that it was competent for the Legislature to extend
the range of the writ, and broaden its application; and that such
was the operation of the act of 1880. But a correct view of that en-
actment will not justify such a construction. The statute allows
the writ to be issued upon the petition of a person "assessed," and
who is aggrieved by that assessment, and desires to review it. There
must be an allegation that the assessment is illegal or erroneous.
When the writ is granted, it will not stay the proceedings of the asses-
sors; and if, thereby, the relief of a judgment is not reached before
the collection of the tax, the remedy provided is a reimbursement in
the next year. The writ is to run to the assessors, who are to re-
turn the assessment roll, or copies thereof, and their official proceed-
ings. In all this we observe that an old writ, whose function and
character was well settled and understood, was applied to a new pur-
pose, and moulded so far, and only so far, as was necessary to ac-
complish the review desired. But it remained a writ of review. It
82 Laws N. Y. 1880, C. 269, provides that "a writ of certiorari may be al-
lowed by the Supreme Court, on the petition, duly verified, of any person or
corporation assessed, and claiming to be aggrieved, to review an assessment
of real or personal property for the purpose of taxation, made in any town,
when the petition shall set forth that the assessment is illegal," etc.
Ch.8)
489
ACTIONS FOR SPECIFIC RELIEF.
1
assumed the existence of the officers whose judicial action it sought
to examine, and was not changed into a plough to root up a tres-
pass. In its application to the present case, it usurped the functions
of a writ of quo warranto. It challenged the titles of the two as-
sessors. It pronounced then intruders and usurpers, and denied their
official character and rights.
When we remember that the writ of quo warranto has been abol-
ished, and an action substituted; that such action is at law, and en-
titles the officer to a trial by jury; and that, under the Code, his title
can only be challenged in that manner—we shall see that a writ of
certiorari can of necessity perform no such office. It is quite true
that the act of 1880 gives redress against not only an erroneous, but
also an illegal, assessment, and in the latter case cancels and annuls
the tax. But it contemplates an assessment made by proper officers,
and which, although illegal in some respects, is not wholly and alto-
gether void; for in the latter event there is abundant remedy open
to the taxpayer, and a certiorari will rarely issue where other suffi-
cient and adequate remedy exists. People v. Supervisors, 1 Hill, 198. .
The act of 1880 was intended to furnish a remedy where none before
existed, and to reach error and illegality for which there was no ade-
quate redress. As this case stood at special term, the relator was in
no danger, and exposed to no risk. The collector would levy at his
peril, for his warrant was void on its face. This court has held that
the collector's authority consists of the assessment roll, and the for-
mal warrant annexed; and these must be read together, in deter-
mining the officers' power and protection. Van Rensselaer v. Wit-
beck, 7 N. Y. 517. If, then, no assessors, and, so, no assessinent roll,
existed, the warrant would be void on its face, and confer no au-
thority whatever. The collector could be sued if he levied, and the
usurpers who directed him be held responsible; for the Special Term
decided that the two men who signed the roll were not even assessors
de facto. If they were such, the ground of the judgment would dis-
appear; and, if they were not, the remedy was elsewhere.
Another suggestion, however, was made on behalf of the relator.
Assuming that the titles of the two assessors could not be assailed
in this proceeding, and so that we are bound to regard them as law-
ful officers, it was yet found that they acted illegally in fixing the
assessed values without notice to Bogart, who was the third as-
sessor. Such action by the majority is unlawful, and vitiates the
whole assessment. Doughty v. Hope, 3 Denio, 598; People v. Su-
pervisors, 11 N. Y. 563. But we are of opinion that the act of 1880
was not intended to, and does not, furnish the remedy, where the
complaint is not of some error or illegality in one or more assess-
ments, and the judicial action which evolved them, but asserts that
there never were any valid assessments at all, and that the whole roll
is utterly void; for in such case there is no judicial action to be re-
viewed and corrected, but an unauthorized wrong and trespass.
490
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
There never was any defect of remedies, in such a case, which made
necessary a new enactment; and all the provisions of the act of 1880
seem to contemplate both assessors and an assessment roll, by whom
or in which illegal steps may have been taken, or errors may exist,
for the correction of which a certiorari should be awarded. Only in
that manner could judicial action which was illegal or erroneous be
reviewed. The act provides for striking an unlawful tax from the
roll, but not the annulment and destruction of the roll itself. If
that be wholly and absolutely void, it can confer no authority, and
give no protection, and the remedies of the taxpayer against the of-
fenders are ample, and have long existed.
The General Term were therefore right in their reversal, and the
judgment should be affirmed, with costs. All concur, except PECK-
HAM, J., not sitting.
STATE ex rel. SCHAEFER v. SCHROFF.
(Supreme Court of Wisconsin, 1904. 123 Wis. 98, 100 N. W. 1030.)
Appeal from circuit court, Racine county.
Certiorari by the State, on the relation of Leonard G. Schaefer,
against Henry J. Schroff, to review the action of the city council of
Racine repealing a certain ordinance granting a liquor license. From
a judgment in favor of the latter, defendant appeals. Reversed.
The relator obtained an ostensible license in July, 1903, to sell
liquor in a part of the city of Racine, where an existing ordinance
required the consent of certain neighbors as a condition precedent.
In October it was represented to the council that such consents had
been obtained by fraud and misrepresentation, and reversal of their
action in granting the license was prayed; whereupon the council
caused notice to be given to the relator to appear and show cause why
his license should not be declared void for the specified reasons.
Thereafter, in December, after some hearing and investigation, the
council adopted a resolution that said ordinance "be and is hereby de-
clared void and of no effect, and that the city clerk be and hereby is
ordered to notify said Leonard Schaefer of the adoption of this res-
olution, and, further, that the money tendered by said Leonard Schaef-
er will be returned to him." The relator sued out writ of certiorari
to review the validity of this resolution, to which return was made
by the respondent as city clerk, showing substantially the situation
above stated. The circuit court held, as matter of law, that the
council had no jurisdiction or power to declare said license void,
except upon the grounds and by the procedure specified by section
1558, Rev. St. Wis. 1898, for a revocation, and entered judgment,
reversing, annulling, vacating, and setting aside the resolution of the
council.
Ch.8)
491
ACTIONS FOR SPECIFIC RELIEF.
DODGE, J. (after stating the facts). We deem it entirely plain, up-
on inspection either of the return or petition, that the council was
in no wise attempting to exercise the jurisdiction conferred upon it
by section 1558, Rev. St. Wis. 1898, to revoke a license, valid at its
inception, but which, by reason of subsequent misconduct, the com-
mon council is authorized to recall. The petition of neighbors, the
notice to Mr. Schaefer, the facts investigated, and the final resolu-
tion mark an inquiry and attempt to decide upon the question whether
the license was valid originally, or void by reason of fraud perpetrated
upon the council in obtaining it. Hence we need not consider wheth-
er the council acquired jurisdiction to act in revocation of this li-
cense under section 1558, or, by improper proceeding, lost such ju-
risdiction. The act done was to declare that the license was, and
always had been, void. And it may be conceded to the relator that
there is much in the record indicating the idea, both on the part of
the petitioners and on the part of the council, that such resolution
might have conclusive effect as an adjudication of the invalidity of
the ordinance. As relator urges, however, there is nowhere in the
statute or charter any authority given to the city council to make
any such decision. Of course, there is an inherent power in the
city to investigate, and to reach conclusion as to the attitude which it
will take—whether to contend for the invalidity of such a license or
not to make such contention; just as there is the right in any in-
dividual to investigate facts, and make up his own inind as to his
attitude with reference to the legal validity of an act done by hiin.
But, in absence of some authority of law, the city council could go no
further. The license was neither more nor less valid by reason of
the resolution here assailed. Such resolution concluded no one, and
might not only be attacked collaterally, but wholly disregarded by
any forum in which the validity of the license might be presented for
consideration and decision.
To this view both parties accede, and of its correctness we can
have no doubt. As a result, however, it is obvious that it does no
injury to the relator. It took away no right which he previously
had. Its utmost effect was to notify him that the council purposed
to contend that his ostensible license was invalid. But, if that ques-
tion was ever presented in a judicial forum for investigation or de-
cision, his right to have the same tried as an independent and orig-
inal one was not in any respect affected by the decision. Certiorari
is a discretionary writ, which should issue only when necessary to
prevent injustice or unlawful injury. Courts will not concern them-
selves, by this extraordinary writ, to declare the invalidity of non-
jurisdictional acts when the relator suffers no injury thereby. Knapp
v. Heller, 32 Wis. 467; State ex rel. v. Mayor, etc., 101 Wis. 208,
ryty N. W. 167. In both of these cases the issue of the writ by cir-
cuit court was reviewed, and reversed on the ground that the cases
presented failed to show equity in the relator; hence, that the issue
492
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
of the writ was an abuse of the discretion of the lower court. In
State ex rel. Anderson v. Timme, 70 Wis. 627, 36 N. W. 325, on an
application to the original jurisdiction of the Supreme Court for a
writ of certiorari, it was decided that the writ should not be issued,
because the action of the land commissioners in investigating and
declaring void a land patent was so entirely beyond their jurisdic-
tion as to be wholly innocuous.
Complete analogy exists between the action of the land commis-
sioners there considered and the action of the council now before
us; at least from the standpoint of the relator. The action in each
case was wholly without jurisdiction, could be of no possible force
save as the mere gratuitous declaration of the opinion of the body
from which it emanated, or at most a notification of that opinion and
of their intended attitude; in one case toward the patent, in the
other toward the license. We deem the reasoning of that case con-
clusive here—that it would be so needless an exercise of a court's
power to review and pass upon the validity of that declaration that no
court, in the proper exercise of its discretion, should issue its extraor-
dinary writ of certiorari. Upon the same reasons it became the duty
of the court, having issued the writ, upon being perhaps further en-
lightened as to the situation by the return, to have dismissed the pro-
ceedings.
Judgment reversed, and cause remanded, with directions to quash
the writ and dismiss the proceedings.83
SECTION 59.-QUO WARRANTO 84
STATE v. EVANS.
(Supreme Court of Arkansas, 1841. 3 Ark. 585, 30 Am. Dec. 468.)
RINGO, C. J., delivered the opinion of the court.
The pleadings, although they are in some respects rather uncertain
and informal, are believed to be substantially good, if the facts dis-
closed are such as in law authorize the writ, or enable the state to
83 The following additional cases in this collection are cases of certiorari:
Hartman v. Wilmington, 1 Marvel (Del.) 215, 41 Atl. 74 (1894); Queen v.
Bowman, [1898] 1 Q. B. 663; Van Nortwick v. Bennett, 62 N. J. Law, 151.
40 Atl. 689 (1898); State (Morford) v. Board of Health of Asbury Park, 61
N. J Law, 386, 39 Atl. 706 (1898); People ex rel. Copcutt v. Board of Health
of Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522
(1893); People ex rel. Shuster V. Humphrey, 156 N. Y. 231, 50 N. E. S60
(1898); Tomlinson v. State Board of Equalization, 88 Tenn. 1, 12 S. W.
414, 6 L. R. A. 207 (1889); Joyce v. Chicago, 216 Ill. 466, 75 N. E. 184
(1905); Queen v. Wood, 5 El. & Bl. 49 (1855).
84 The remedy of quo warranto (in the modern practice, in the form of
an information in the nature of a quo warranto) is not generally available
Ch. 8)
493
'ACTIONS FOR SPECIFIC RELIEF.
require the defendant to show his warrant or authority to preside
upon the trial of and adjudicate the cases therein mentioned.
The first question, therefore, to be determined, is whether the ac-
tion or legal remedy for the wrong supposed to have been committed,
has not been misconceived. It must, we think, be conceded that
the common law regards the proceeding by writ of quo warranto as
the most appropriate remedy for the king, by which he may at pleas-
ure require any subject, exercising a public franchise or authority
which he cannot legally exercise without some grant or authority
from the crown, to show by what warrant or authority he exercises
it, and thereupon demand and have a judicial trial and determina-
tion of the legal right of the defendant to exercise such office or
franchise, and that, by analogy, the state here may in like cases have
the same remedy. But here, as in England, the object and effect of
the proceeding must be either to oust the party defendant of the
franchise, if he fails to show in himself a complete legal right to
its exercise, derived from or under the authority of the state, or, if
the franchise has been once legally granted, and has been forfeited by
the defendant or those through whom he derives title to it, to seize it
into the hands of the state. But it is believed that no precedent can
be found where this writ was ever issued for the purpose of restrict-
ing or preventing any one legally possessed of a public office or fran-
chise from exercising any right, authority, or privilege incident there-
to, or claimed by virtue thereof. It is a legal proceeding, authorized
exclusively for the purpose of investigating and determining, by ju-
dicial authority, the legal right to a public office or franchise, but is
not nor ever was authorized by the common law to be used as the
legal instrument or means of prohibiting or restraining a public of-
ficer, or person exercising a public franchise from the doing of any
particular act or thing, the right of doing which was claimed by virtue
of such office or franchise, and constituted a portion only or an in-
tegral part of the rights, powers, and privileges incident thereto.
For example, although it is the appropriate legal proceeding to
oust or remove from office, by judicial authority, a person who is in-
eligible to the office of judge of the circuit court, or who has not
been legally elected, appointed, commissioned, or qualified to hold
such office, yet if the office be held by a person eligible thereto, who
has been legally elected, or appointed, commissioned, and qualified to
hold it, he cannot by such proceeding be legally prohibited or pre-
vented from taking cognizance of and adjudicating any suit or pro-
ceeding instituted and pending for adjudication in any court which
he is by law authorized to hold, although such court may not legally
for the protection of private rights against administrative action. Its prin-
cipal uses are the correction of the illegal exercise of corporate powers and
the determination of controversies regarding the title to public office. As to
its history and use for these purposes, see Attorney General y. Sullivan, 163
Mass. 416, 40 N. E. 843, 28 L. R. A. 455 (1895).
494
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
possess jurisdiction of the matter, or authority to adjudicate and de-
termine the controversy. So, if the commission be special, to hold
plea of and adjudicate and determine certain cases particularly men-
tioned and described, a portion only of which he can legally adjudi-
cate and determine, and he assumes jurisdiction over all of the
cases so mentioned and described, notwithstanding the want of legal
authority in him to adjudicate and determine a part of them, he
cannot be legally restrained or prohibited therefrom as to the cases
only which he has no legal right to take cognizance of, try, and de-
cide, by any proceeding upon a writ of quo warranto; because the
object and effect of the proceeding in such case would not be to
oust or divest him of the office itself, but only to prohibit him from
exercising a power incident to the office in regard to a particular
case, thus conceding to the defendant the legal title to the office, and
denying only his legal right to exercise it over a particular case, or in
reference to some particular matter or subject, which is not and
never was the legitimate office or object of such writ, or the pro-
ceedings thereupon authorized by law.
The defendant shows that the judge of the Fifth judicial circuit,
embracing the county of Pulaski, had officially certified to the Gov-
ernor the fact of his disqualification to preside on the trial of sundry
cases then pending in the circuit court of said county, which were
specially designated, and among which were the cases mentioned in
the writ, and that the Governor thereupon appointed and commis-
sioned specially the defendant for the trial and determination of the
cases so certified, which were also specially enumerated in his com-
mission, including with others the cases mentioned in the writ; and
these facts are not controverted by the state, but are, by her replica-
tion, admitted to be true. The defendant therefore, from aught that
appears in the pleadings before us, is eligible to and legally possessed
of the office of judge of the circuit court, and notwithstanding his
office and authority are limited to the trial and determination of the
cases specified in his commission, he was unquestionably invested
with legal authority to hold the circuit court in which such cases
were pending, for their trial and determination, and in reference
thereto was clothed with all the powers appertaining to said court,
and was by law to preside therein pending their trial and determina-
tion, unless prevented by some legal reinedy applicable to the case,
and interposed, prosecuted, or presented by the parties themselves,
instead of the state, if in fact he had no legal jurisdiction of, or right
to try and determine, a portion only of the cases mentioned in his
commission.
The writ before us does not require the defendant to show by what
warrant he exercises the office or franchise of judge of the circuit
court in and for the county of Pulaski, but simply demands of him
to show by what authority he exercises said office in respect to the
two cases therein mentioned, being a part only of the cases he was
Ch. 8)
495
ACTIONS FOR SPECIFIC RELIEF.
commissioned specially to try. Nor does the replication question his
legal right to the office itself, but simply denies the disqualification
of the regular judge of the Fifth judicial circuit to adjudicate the
cases mentioned in the writ, thus attempting, as it were, to divide
the office, and to consider it as a distinct office depending upon a
separate warrant in reference to each case, which the judge is com-
missioned specially to try and determine, contrary to the fact, as
well as every principle of law and justice. This principle, if admit-
ted to be true, might subject the officer to the vexation and expense
of exhibiting his authority in every case pending for his adjudication,
and a judgment in one case would be no bar to the demand made of
him in another, nor could any judgment of ouster from office, or
other legal judgment, that we are aware of, be pronounced against
him in such case.
And therefore we are of the opinion that the legal remedy for the
wrong, if any has been committed by the supposed unauthorized and
illegal certification to the Governor, by the regular judge of the cir-
cuit court of Pulaski county, of the cases mentioned in the writ,
has in this proceeding against the defendant been misconceived. And
for this reason the demurrer to the replication must be sustained.8
85
PEOPLE ex rel. LONGRESS v. BOARD OF EDUCATION OF
.
CITY OF QUINCY.
(Supreme Court of Illinois, 1882. 101 Ill. 308, 40 Am. Rep. 196.)
Mr. Chief Justice CRAIG delivered the opinion of the court.96
This was an information in the nature of a quo warranto, brought
by the Attorney General, on the relation of John Longress, against
the board of education of the city of Quincy, a corporation created
by an act of the General Assembly approved February 20, 1861. Priv.
Laws 1861, p. 252. The board of education is intrusted by law with
the exclusive management and control of the public schools in the
city of Quincy. *
It is averred in the information that on the 31st day of July, 1878,
before that time, and since, there was a large number, to wit, five
hundred persons of African descent, commonly called "colored per-
sons," between the ages of six and twenty-one years, who for all
that time have been and are now bona fide residents of said city of
Quincy, and in the several school districts thereof, and have been
and are at all times, and are now, ready to furnish to the principal
of the proper school satisfactory evidence that they have been vac-
85 Quo warranto held not to be the proper remedy to test the validity of
an ordinance. State v. Lyons, 31 Iowa, 432 (1871); State y. Newark, 57
Ohio St. 430, 49 N. E. 407 (1898).
8'6 Only a portion of the opinion of Craig, C. J., is printed.
496
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
cinated; and the said persons do now reside, and at all times hereto-
fore have in good faith resided, in the different school districts of
said city so established by the said the board of education of the city
of Quincy, and are entitled to be admitted into the public schools of
the districts in which they respectively reside, without being directly
or indirectly excluded therefrom on account of their descent or
color, yet the said the board of education of the city of Quincy, dur-
ing all the time aforesaid, without warrant or authority of law, have
adopted, maintained and enforced, for the management of the public
schools of said city, and to exclude the said persons of African descent,
commonly called "colored persons," from the said public schools in
the districts in which they reside, on account of their descent and
color, the following pretended rules and regulations for the govern-
ment and management of the public schools of said city, that is to
say: "That the colored schools of said city shall be composed of
colored pupils who shall be of the prescribed age, and bona fide resi-
dents of said city; that no pupil of African descent shall be per-
mitted to attend any of the public schools of the city other than the
colored schools, and that all the colored pupils in said city shall at-
tend a certain public school in said city, called, the Lincoln School,
and no other." All of which pretended rules and regulations for the
government and management of said public schools in said city, the
said the board of education of the said city of Quincy, without au-
thority of law, do maintain and enforce, to the damage of the peo-
ple of the state of Illinois, and against the peace and dignity of the
same.
The board of education filed five pleas to the information, to which
the Attorney General interposed a demurrer, which the court car-
ried back and sustained to the information, and this decision of the
court is assigned for error.
Whether a proceeding in the nature of a quo warranto, instituted
by the Attorney General, will lie in a case of this character at com-
mon law, is a question which it will not be necessary to determine.
The object of the proceeding was to test the legality of the rules
adopted by the board of education, and if the statute is broad enough
to authorize the court to inquire into the action of the board in
adopting and enforcing the rules which excluded children of color
from the public schools, then the information was proper, and the
court erred in sustaining the demurrer.
Section 1, c. 112, p. 787, Rev. St. 1874, provides that in case any
person shall. usurp, intrude into, or unlawfully hold or execute any
office or franchise,
or any corporation does or omits any
act which amounts to a surrender, or forfeiture of its rights and priv-
ileges as a corporation, or exercises powers not conferred by law,
the Attorney General, or state's attorney of the proper
county, either of his own accord or at the instance of any individual
relator, may present a petition to any court of record of competent
* *
Ch.8)
497
ACTIONS FOR SPECIFIC RELIEF.
*
jurisdiction, or any judge thereof, in vacation, for leave to file an
information in the nature of a quo warranto,
and if such
court or judge shall be satisfied that there is probable ground for
the proceeding, the court or judge may grant the petition,” etc.
The board of education is a corporation created by law, clothed
with the exercise of certain powers in relation to the public schools
of Quincy. Now, if the board, in the discharge of its duties as a
corporation, exercises powers not conferred by law, it is apparent
that it will fall within the obvious meaning of the statute, unless the
plain reading of the statute is to be disregarded. The very gist of
the complaint here is that the board of education, a corporation, is
exercising powers not conferred by law, unless it had the right to
adopt and enforce the rules set out in the information. We are
therefore clearly of opinion that, under the statute, the Attorney
General had the right to file the information.
* 87
87 See, also, People v. Town of Thornton, 186 Ill. 162, 57 N. E. 841 (1900).
In Illinois, formerly, quo warranto was held not to be the proper remedy
to test the validity of the extension of the powers of a municipal corporation
over new territory. People v. Whitcomb, 55 Ill. 172 (1870). At present,
quo warranto is held to be the proper remedy for that purpose. Evans v.
Lewis, 121 Ill. 478, 13 N. E. 246 (1887); Shanley v. People, 225 Ill. 579,
80 N. E. 277 (1907).
In Kansas, quo warranto was used to oust a municipal corporation from
the illegal exercise of the power to grant licenses for the sale of intoxicating
liquor. State v. Topeka, 30 Kan. 653, 2 Pac. 287 (1883); Id., 31 Kan. 452,
2 Pac. 593 (1884).
See, also, State v. City Council of Charleston, 1 Mill, Const. (S. C.) 36
(1817).
With regard to the burden of proof in quo warranto proceedings, see note
to State y. Kupferle, 44 Mo. 154, 100 Am. Dec. 265, 268 (1869).
The following additional cases in this collection illustrate the application
of proceedings in the nature of quo warranto: People ex rel. Lewis v. Waite,
70 Ill. 25 (1873); People ex rel. Demarest v. Fairchild, 67 N. Y. 334 (1876) ;
People ex rel. Raster v. Healy, 230 Ill. 280, S2 N. E. 599, 15 L. R. A. (N. S.)
603 (1907); Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128
(1884); Wilcox y. People, 90 I}]. 186 (1878); People ex rel. Gere v. Whitlock,
92 N. Y. 191 (1883); State ex rel. Meader v. Sullivan, 58 Ohio St. 504, 51 N.
E. 48, 65 Am. St. Rep. 781 (1898).
FR.ADD.LAW-32
498
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 60.-HABEAS CORPUS
Ex parte WATKINS.
(Supreme Court of the United States, 1830. 3 Pet. 193, 7 L. Ed. 650.)
MARSHALL, C. J.88 This is a petition for a writ of habeas cor-
pus to bring the body of Tobias Watkins before this court, for the
purpose of inquiring into the legality of his confinement in jail. The
petition states that he is detained in prison, by virtue of a judgment
of the Circuit Court of the United States for the county of Washing-
ton, in the District of Columbia, rendered in a criminal prosecution
carried on against him in that court. A copy of the indictment and
judgment is annexed to the petition, and the motion is founded on the
allegation that the indictment charges no offense for which the prisoner
was punishable in that court, or of which that court could take cog-
nizanoe, and consequently that the proceedings are coram non judice,
and totally void.
This application is made to a court which has no jurisdiction in
criminal cases (United States v. More, 3 Cranch, 169, 2 L. Ed. 397),
which could not revise this judgment, could not reverse or affirm it,
were the record brought up directly by writ of error. The power,
however, to award writs of habeas corpus, is conferred expressly on
this court by the fourteenth section of the judiciary act, and has
been repeatedly exercised. No doubt exists respecting the power;
the question is whether this be a case in which it ought to be exercised.
The cause of imprisonment is shown as fully by the petitioner as it
could appear on the return of the writ; consequently, the writ ought
not to be awarded, if the court is satisfied that the prisoner would
be remanded to prison.
No law of the United States prescribes the cases in which this great
writ shall be issued, nor the power of the court over the party
brought up by it. The term is used in the Constitution, as one which
was well understood; and the judiciary act authorizes this court,
and all the courts of the United States, and the judges thereof, to
issue the writ "for the purpose of inquiring into the cause of com-
mitment.” This general reference to a power which we
quired to exercise, without any precise definition of that power, im-
poses on us the necessity of making some inquiries into its use, ac-
cording to that law which is in a considerable degree incorporated
into our own.
The writ of habeas corpus is a high prerogative writ, known to
the common law, the great object of which is the liberation of those
are
le-
88 Only a portion of the opinion of Marshall, C. J., is printed.
Ch.8)
499
'ACTIONS FOR SPECIFIC RELIEF.
who may be imprisoned without sufficient cause. It is in the nature
of a writ of error, to examine the legality of the commitment. The
English judges, being originally under the influence of the crown,
neglected to issue this writ, where the government entertained sus-
picions which could not be sustained by evidence; and the writ,
when issued, was sometimes disregarded or evaded, and great in-
dividual oppression was suffered, in consequence of delays in bring-
ing prisoners to trial. To remedy this evil, the celebrated habeas
corpus act of 31 Car. II was enacted, for the purpose of securing
the benefits for which the writ was given. This statute may be re-
ferred to as describing the cases in which relief is, in England, af-
forded by this writ to a person detained in custody. It enforces
the common law. This statute excepts, from those who are entitled
to its benefit, persons committed for felony or treason, plainly ex-
pressed in the warrant, as well as persons convicted or in execution.
The exception of persons convicted applies particularly to the ap-
plication now under consideration. The petitioner is detained in
prison by virtue of the judgment of a court, which court possesses
general and final jurisdiction in criminal cases. Can this judgment be
re-examined upon a writ of habeas corpus?
This writ is, as has been said, in the nature of a writ of error,
which brings up the body of the prisoner, with the cause of commit-
ment. The court can undoubtedly inquire into the sufficiency of that
cause; but if it be the judgment of a court of competent jursdic-
tion, especially a judgment withdrawn by law from the revision of
this court, is not that judgment in itself sufficient cause? Can the
court, upon this writ, look beyond the judgment, and re-examine the
charges on which it was rendered? A judgment, in its nature, con-
cludes the subject on which it is rendered, and pronounces the law
of the case. The judgment of a court of record, whose jurisdic-
tion is final, is as conclusive on all the world as the judgment of this
court would be. It is as conclusive on this court, as it is on other
courts. It puts an end to inquiry concerning the fact, by deciding
it.
*
* 8 9
89 The following cases in this collection are cases of habeas corpus: In
re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402 (1888); Langenberg
v. Decker, 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108 (1892); Nishimura
Ekiu v. United States, 142 U. S. 657, 12 Sup. Ct. 336, 35 L. Ed. 1146 (1892);
Gonzales v. Williams, 192 U. S. 1, 24 Sup. Ct. 171, 48 L. Ed. 317 (1903) ;
United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917
(1904); United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed.
1040 (1905); Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52
L. Ed. 369 (1908).
500
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
SECTION 61.-PROHIBITION
The principal function of the writ of prohibition is to restrain inferior
courts from proceeding in matters beyond their jurisdiction. Its use to con-
trol administrative action is exceptional and infrequent. See, for example,
State ex rel. Ellis v. Elkin, 130 Mo. 90, 30 S. W. 333, 31 S. W. 1037 (1895);
Speed v. Common Council, 98 Mich. 360, 57 N. W. 406, 22 L. R. A. 842, 39
Am. St. Rep. 555 (1894); People v. Supervisors of Queens County, 1 Hill (N.
Y.) 195, 200 (1811); People ex rel. Pressmeyer v. Board of Commissioners
of Police, 59 N. ¥. 92 (1874). As to use of writ in South Carolina, see State
ex rel. Carter V. Burger, 1 Mcdiul. (S. C.) 418 (1841), and State v. County
Treasurer, 4 S. C. 520, 534 (1873).
Writ held not to lie against an administrative body. La Croix v. County
Commissioners of Fairfield County, 50 Conn. 321, 324, 47 Am. Rep. 648
(1882).
SECTION 62.-JUDICIAL DISCRETION IN ALLOWANCE
OF EXTRAORDIARY LEGAL REMEDIES-MANDAMUS
PEOPLE ex rel. GAS LIGHT CO. V. COMMON COUNCIL OF
SYRACUSE.
(Court of Appeals of New York, 1979. 78 N. Y. 56.)
CHURCH, C. J.% This is an appeal from a judgment denying a
mandamus to compel the common council of the city of Syracuse to
proceed to the assessment and collection of a tax sufficient to pay
the relator and another property owner the appraised value of lands
proposed to be taken for street purposes. The commissioners ap-
pointed to appraise the value of the lands filed their report Decem-
ber 11, 1871, and on October 13, 1873, the common council passed a
resolution rescinding the original resolution to widen the street and
condemn lands therefor, and declared that all proceedings taken pur-
suant thereto were abandoned and discontinued. The application for .
a mandamus was made June 29, 1875.
The two material questions presented are:
First. Whether the
common council had the legal right as against the property owners
to discontinue the proceedings. Second. If this should be deter-
mined in the negative, whether the lapse of time and other circum-
stances justified the judgment refusing a mandamus. [The discus-
90 Only a portion of the opinion of Church, C. J., is printed.
Ch.8)
501
ACTIONS FOR SPECIFIC RELIEF.
sion of the first question is omitted. The court concluded that the
rescinding resolution was void.]
As to the question whether the court below was justified in refus-
ing a mandamus on account of the lapse of time which intervened,
there is inore embarrassment. The writ of mandamus is called a
prerogative writ. It originated from a necessity to furnish a remedy
to compel the performance of a specific duty, in cases where the ordi-
nary forms of legal procedure furnished no adequate remedy, and iş-
sued by the exercise of the sovereign power of the king, who origi-
nally sat in the King's Bench in person. 1 Bl. Com. 239. As this exer-
cise of power could not be controlled, the issuing of the writ was nec-
essarily discretionary, and [it] was liable to be issued or refused as the
king might see fit.
When the power became vested in the courts of England, and when
transmitted to our own courts, it has been and is still regarded as dis-
cretionary, as distinguished from a writ of right. But although in
this sense discretionary in the court to grant or refuse this remedy,
yet it is not an absolute and arbitrary discretion, but the power is to
be exercised, and may be regulated and controlled by certain rules of
law dictated by experience, and incorporated into our system of judi-
cature. Fish v. Weatherwax, 2 Johns. Cas. 215, note, and cases cited.
The distinction between an absolute discretion, and that which is
governed by legal rules, is well recognized. The former is not re-
viewable; the latter is. Howell v. Mills, 53 N. Y. 322. This case be-
longs to the latter class. There must be a clear legal right. We
have seen that such right existed. There must be no other adequate
remedy. It is not disputed that such was the fact.
It is insisted that the relator has lost his right by delay. Some de-
lay was necessary. The commissioners were to be put in motion,
local assessments, and perhaps general assessments, were to be made,
perfected, and collected, and this would occupy an indefinite period
of time. How long does not appear. The case seems to have been
tried upon the pleadings, and it was alleged that the relator had of-
ten requested the common council to make the assessment.
where appears what answer was made to these applications, whether
the council refused, or promised performance, so that up to the pe-
riod of the resolution of abandonment there is nothing in the case
to show a want of vigilance on the part of the relator or any indis-
position on the part of the common council to perform their duty.
But after that it is argued that from the lapse of time before apply-
ing for the writ, about twenty months, it may be inferred that the
relator acquiesced in the abandonment, and it is laid down as a rule
that a party must not sleep upon his rights. There would be some
force in this position if it appeared that the relator knew of this ac-
tion of the common council; but this fact is neither alleged, nor
proved. I have been unable to find any authority for the position
It 110-
502
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
that a mere delay of this character has been fatal to the right of a
party to this remedy, when a clear legal and substantial right has
been shown.
When the relator has for an unreasonable time slept upon his
rights, the court may in the exercise of a sound discretion refuse the
writ. In determining what will constitute such unreasonable delay,
regard should be had to circumstances which justify the delay, to
the nature of the case and the relief demanded, and to the question
whether the rights of the defendant or of other persons have been
prejudiced by such delay. Chinn v. Trustees, 32 Ohio St. 236. The
difficulty with the case on the part of the defendant is that no facts
were shown which would justify a refusal of the writ, except a de-
lay which may in part at least have been caused by the defendant.
There is nothing to show but that the plaintiff supposed that the pro-
ceedings were progressing, or that he thought an abandonment was
contemplated, nor any change of circumstances shown, rendering the
consummation of the improvement impracticable or specially injuri-
ous to the defendant or individuals. That question seems not to have
been litigated on the trial. The circumstances should be shown which
according to established rules justify a refusal of the writ.
In King v. Canal Co., 1 M. & C. 35, there was delay, and another
remedy. In King v. Commissioners, 20 Eng. Com. Law, 525, there
was delay, and the issuing of the writ would have been prejudicial
to the intervening private rights of others, and in all the cases cir-
cumstances appeared which according to settled rules of public poli-
cy warranted a refusal of the writ. 2 Crary's Prac. 51, 52, and cases
cited; 5 Wait's Prac. 552.
When the relator shows a fixed legal right to compensation for
lands condemned for public purposes, a mere delay of the character
appearing in this case is not sufficient to deprive him of the right.
People v. Board of Supervisors, 12 Barb. 446. The nature of the
case is such that circumstances may exist rendering it improper to
grant the writ, but no such facts appeared. A new trial may develop
them.
We do not deem it necessary to notice the other points.
As the case appeared, we think it was error to refuse the writ.
The judgment must be reversed, and a new trial granted, costs to
abide event. All concur, except ANDREWS, J., absent.
Judgment reversed."1
01 See, also, People ex rel. Stettauer v. Olsen, 215 Ill. 620, 74 N. E. 785
(1905).
Ch.8)
503
ACTIONS FOR SPECIFIC RELIEF.
SECTION 63.-SAME-CERTIORARI
PEOPLE ex rel. CHURCH V. ALLEGANY COUNTY SUP’RS.
(Supreme Court of New York, 1836. 15 Wend. 198.)
Certiorari to county board of supervisors.
BRONSON, J.92 * The question, then, involved in this pro-
ceeding, is whether the tax lists of the several towns in the county of
Allegany, in which the relator was assessed in the year 1832, and
the warrants issued to the collectors, shall be quashed and annulled
for irregularity. What would be the probable consequences of such
a judgment as we are asked to pronounce? How many hundreds of
suits would it authorize against each of the twenty-six supervisors,
who are defendants, and what would be the condition of the several
officers who have collected the tax? If the relator has a right to
prosecute the writ ex debito justitiæ, these inquiries should have no
influence upon the disposition which is to be made of the cause. The
court must pronounce its judgment, and leave the consequences to
others. But if, in awarding writs of this description, the court is to
exercise a sound legal discretion, and grant or refuse the process as
the ends of justice and the public interesr may require, we are not at
liberty to shut our eyes to the consequences which may follow from
entertaining this proceeding. It is not necessary to decide that ac-
tions could be maintained, either against the supervisors or the col-
lectors, in the event of a judgment in favor of the relator. It is
enough that such suits would probably be brought, and it is not en-
tirely clear, to say the least, that they could not be maintained.
In the exercise of the superintending power of this court over in-
ferior jurisdictions, the writ of error is a writ of right, and issues
on conforming to such regulations as have been prescribed by law.
But the writ of certiorari, especially in those cases where it is used
for the purpose of reviewing the acts and decisions of the special ju-
risdictions which are created by statute, and do not proceed accord-
ing to the course of the common law, such as boards of supervisors,
commissioners of highways, and the like, does not issue ex debito
justitiæ, but only on application to the court and special cause shown.
The reason is that these bodies exercise powers in which the people
at large are concerned, and great public detriment or inconvenience
might result from interfering with their proceedings. The writ can-
not be allowed by a judge at chambers, but only by the court itself.
Starr v. Trustees of Rochester, 6 Wend. 565; Comstock v. Porter, 5
Wend. 98; Albany Water Works Co. v. Mayor's Court, 12 Wend.
92 Only a portion of the opinion of Bronson, J., is printed.
504
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
292. In The King v. Eaton, 2 T. R. ,89, on a motion for a writ to
remove a conviction before a justice of the peace, Buller, J., said that
the rule requiring the defendant to lay a ground before the court
for granting a certiorari had obtained since the time of Charles II,
and he cited a case of that day, where it was held as clear law that
a certiorari ought not to be granted in vacation, but in open court,
and upon a ground shown. Commonwealth v. Downing, 6 Mass. 72;
State v. Vanderveer, y N. J. Law, 38.
In Arthur v. Commissioners of Sewers, 8 Mod. 331, it was re-
marked by one of the judges that "a writ of certiorari was not a
writ of right, for if it was it could never be denied to grant it; but
it has often been denied by this court, who, upon consideration of the
circumstances of the case, may deny it, or grant it at discretion."
And Bacon (Abr. tit. "Certiorari," A) says, although the writ ought of
right to be issued at the instance of the king, for the purpose of re-
moving an indictment, yet the court “has a discretionary power in
granting or refusing it at the suit of the defendant.” He cites cases
in which the court has refused to grant the writ. In Ludlow v. Lud-
low, 4 N. J. Law, 387, Kirkpatrick, C. J., says the very issuing of
such a writ is the exercise of a high judicial power, and must, in its
nature, be discretionary. In Lees v. Childs, 19 Mass. 351, it was held
that an application for a certiorari was addressed to the discretion of
the court, and would not be granted, but on showing probable cause
for supposing that injustice has been done. In Ex parte Weston and
Others, 11 Mass. 417, the court held the same doctrine; and although
that was a case which did not affect the public, but the rights of in-
dividuals only, the court said that before granting a certiorari they
would always look into the record, and even into the circumstances
attending the process, “because, when the record is actually returned,
in obedience to the writ of certiorari, they are bound to quash the
whole proceeding, if error should appear.”
* 93
INHABITANTS OF RUTLAND v. WORCESTER COUNTY
COM'RS.
(Supreme Judicial Court of Massachusetts, 1838. 20 Pick. 71.)
PER CURIAM.94
A petition for 2 writ of certiorari is
well understood to be addressed to the discretion of the court. When
the record is before the court upon the return of the writ, the court
will look only at the record. For this reason it would be futile to
93 Accord: People ex rel. Vanderbilt v. Stilwell, 19 N. Y. 531 (1859) ;
People ex rel. David v. Hill, 53 N. Y. 547 (1873); People ex rel. Corwin v.
Walter, 68 N. Y. 403 (1877); People ex rel. Waldman v. Board of Police
Com’rs, 82 N. Y. 506 (1880).
94 Only a portion of the opinion is printed.
Ch.8)
505
ACTIONS FOR SPECIFIC RELIEF.
admit evidence to contradict the record, on the petition for a certio-
rari; but, it being within the discretion of the court to grant or refuse
the writ, evidence extrinsic to the record may very properly be re-
ceived, to show that no injustice has been done, and that a certiorari
ought not to be issued. The petitioners in the case before us will in
the first place exhibit the record and point out in what particulars
they deem it to be erroneous or defective; and then the respondents
may prove by extrinsic evidence that no injustice has been done, that
if the proceedings shall be quashed the parties cannot be placed in
statu quo, or that for any good reason a certiorari ought not to be
granted. If such evidence shall be offered by the respondents, the
petitioners will of course have a right to rebut it by like evidence.
*
* 95
TRUSTEES OF SCHOOLS OF TOWN 21 N., RANGE 5 W. v.
SCHOOL DIRECTORS OF UNION DISTRICT.
(Supreme Court of Illinois, 1878.
88 Ill. 100.)
Mr. Chief Justice SCHOLFIELD delivered the opinion of the court.
The only question we deem it necessary to consider in the pres-
ent case is whether appellee should be held to be barred from in-
quiring into the validity of the act of detaching territory from the
one school district and adding it to the other, by reason of the laches
in suing out the certiorari.
The writ of certiorari, when used for the purpose of correcting
the proceedings of inferior tribunals, is not a writ of right; but it
issues only upon application to the court, upon special cause shown.
Bath Bridge Co. v. Magoon, 8 Greenl. (Me.) 293; Drowne v. Stimp-
son, 2 Mass. 441; Lees v. Childs, 17 Mass. 352; Huse v. Gaines, 2
N. H. 210; Munro v. Baker, 6 Cow. (N. Y.) 396; People v. Super-
visors, 15 Wend. (N. Y.) 198; State v. Senft, 2 Hill (S. C.) 367;
Rockingham v. Westminster, 24 Vt. 288. And the reason is said to
be because these bodies exercise powers in which the people at large
are concerned, and great public detriment or inconvenience might re-
sult from interfering with their proceedings. People v. Supervi-
sors, supra. As a corollary it follows that, whenever great public
detriment or inconvenience might result from interfering with their
proceedings, the writ of certiorari should be denied. And, on this
principle, in Elmendorf v. Mayor, etc., 25 Wend. 693, the Supreme
Court of New York refused a certiorari to remove the proceedings
of the common council of New York, changing the grade of certain
streets, three years and a half after the confirmation. It is true, in
that state a writ of error would not lie, under the statute, after the
expiration of two years, and it was said the court would, by analogy
05 Accord: Hyslop v. Finch, 99 Ill. 171, 179 (1881).
506
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
to the statute, in ordinary cases, refuse a certiorari after the lapse
of that period; but the decision was placed expressly upon the ground
that there had been unreasonable delay, and that serious consequences
to the city must result from allowing the writ. Nelson, C. J., who
delivered the opinion of the court, said: "I place my refusal to allow
the certiorari upon the unreasonable delay in the application for it,
and the serious consequences to the city which must necessarily fol-
low the granting of it after such a lapse of time, during which the
improvement has been finished, and two-thirds of the assessment
paid by owners.' This principle is also recognized and applied in
Rutland v. County Com’rs, etc., 20 Pick. (Mass.) 79, 80; In re Lan-
tis et al., 9 Mich. 324, 80 Am. Dec. 58; Chamberlain v. Berclay, 13
N. J. Law, 244; Bell v. Overseers, 14 N. J. Law, 131; Dailey v.
Bertholomew, 1 Ashm. (Pa.) 135.
It is not questioned but that there was power to detach territory
from the one district and add it to the other; but it is only objected
that the power had not been exercised by the proper officers in the
mode prescribed by the statute. It would, therefore, seem very clear
that the omission complained of is one that would have been sup-
plied by a subsequent express ratification of the act, and, if this be
true, we know of no reason why in this, as in many other instances
of defective execution of powers by corporations, a ratification may
not be inferred from acquiescence. In Metz et al. v. Anderson et
al., 23 Ill. 469, 76 Am. Dec. 704, this coust, arguendo, said: "But if
it could be shown that the order changing the districts, by consoli-
dating two districts into one, was an unwarrantable exercise of pow-
er, it might, with propriety, be claimed that there has been an ac-
quiescence in it by the functionaries of the now complaining district
9.” In this w, the doctrine of the cases above referred to must be
held to be conclusive in the present case.
The petition here was filed July 15, 1875, and the action of the
trustees complained of was had in April, 1972, over three years be-
fore. A proper plat of the districts, as constituted after the changes
effected by the action of the board, was made and filed with the coun-
ty clerk at the time; and thereafter the school funds were appor-
tioned in accordance with such changes, and the presumption is that
taxes for school purposes were thus levied and collected. It may be,
also, that debts have been incurred in building or repairing school
houses, or for other legitimate school purposes, upon the faith of the
action of the trustees, now for the first time sought to be questioned.
The case, in our opinion, is clearly one where, by reason of the
lapse of time and the acquiescence of the party now complaining in
the distribution of school funds, the levy and collection of school
taxes, and, possibly, the incurring of debts, upon the faith of the ac-
tion of the trustees, it was improper to allow the writ; but, having
been allowed, it should have been quashed, on motion.
It is better, if it shall be desirable, by appropriate steps through the
Ch. 8)
507
ACTIONS FOR SPECIFIC RELIEF.
proper school officers, to reorganize the districts as they were before,
than to open up an indefinite field of strife and litigation by now
nullifying the action of the trustees, and thereby declaring everything
done pursuant thereto illegal.
Some question was made in argument as to the right to consider
this question on appeal, but we presume not seriously, since the right
of appeal now exists, by statute, from all final judgments.
It is true the court below was invested with discretion, to some ex-
tent, whether to grant or to refuse the writ; but that discretion did
not authorize the granting of the writ in a case where, by law, it
clearly ought not to have been granted. The discretion was not an
arbitrary one, but one to be exercised in subordination to legal prin-
ciples, and we may always inquire whether those principles have been
adhered to or departed from. The judgment is reversed.
Judgment reversed.
06
SECTION 61.--SAME-QUO WARRANTO
PEOPLE ex rel. LEWIS v. WAITE.
(Supreme Court of Illinois, 1973. 70 Ill. 25.)
Appeal from the criminal court of Cook county; Lambert Tree,
Judge.
This was an application by the state's attorney for leave to file
an information of the relator, in the nature of a quo warranto, against
George W. Waite. The opinion of the court gives a summary state-
ment of the case and the facts. The relator appealed.
Mr. Justice Scott delivered the opinion of the court.
Our statute, in relation to informations in the nature of a quo
warranto, is a substantial, if not a literal, copy of 9 Anne, c. 20, on
the same subject. The granting of leave to file such informations
lias uniformly been held, both in this country and in England, to be
within the sound discretion of the court. Leave is not given as a
matter of course, but a court ought not arbitrarily to refuse leave,
but should exercise a sound discretion, according to law. Dillon on
Mun. Corp. § 722; State v. Tehoe, 7 Rich. 246; Commonwealth v.
Arrison, 15 Serg. & R. (Pa.) 133, 16 Am. Dec. 531; People v.
Sweeting, 2 Johns. (N. Y.) 184; King v. Hythe, 6 Barn. & Cres. 217;
King v. Peacock, + Term R. 684; King v. Stacy, 1 Term R. 1.
The mode for instituting such proceedings is, usually, as pursued in
the case at bar. The state's attorney submitted a motion, based on
affidavit, for leave to file an information in the nature of a quo war-
06 Accord : Chicago v. Condell, 224 ill. 595, 79 N. E. 954 (1906).
508
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
ranto. A rule nisi was laid on defendant to show cause why the in-
formation should not be filed. Respondent answered the rule by
counteraffidavits. This practice is warranted by the authorities.
People v. Shaw, 14 Ill. 476; King v. Symons, 4 Term R. 221; People
v. Tibbets, 4 Cow. (N. Y.) 383; People v. Richardson, 4 Cow. (N.
Y.) 103 and notes.
For cause shown, the court no doubt has a discretion to grant
or refuse the leave asked, according to the circumstances. Relator
claims he was, in a legal manner, elected school trustee for town-
ship 38, and that respondent has usurped that office, and now holds it,
and is exercising its functions without authority of law. The affi-
davit shows respondent was himself elected to that office, by the qual-
ified voters of the town.
It is insisted, however, the election was void, for the reason it
was not held at the place designated in the notices required by law
to be posted prior to holding the election. The counteraffidavits
show relator participated in the election he now seeks to have de-
clared void, by voting thereat, and was himself an opposition can-
didate to respondent. Relator knew then, as well as now, what ir-
regularities had intervened in the conduct of the election, and he
ought not to be permitted to disturb the public welfare by having
an election declared void in which he participated with a full knowl-
edge of all irregularities that existed. A sound public policy for-
bids it. The only informality charged is the election was held at an
improper place. This fact was known to relator. He uttered no
complaint at the time, but submitted his claims to the office to the
voters of the town voting at that place, and claimed the right to
and did have his own vote recorded.
These facts make it inequitable that he should have the remedy
sought, and the court, in the exercise of a sound, legal discretion,
properly discharged the rule. The judgment nust therefore be af-
firmed.
Judgment affirmed.
PEOPLE ex rel. DEMAREST v. FAIRCHILD, Atty. Gen.
(Court of Appeals of New York, 1876. 67 N. Y. 334.)
Appeal from order of the General Term of the Supreme Court
in the Third Judicial Department, affirming an order of Special Term,
which denied a motion for a writ of peremptory mandanius. Re-
ported below, 8 Hun, 334.
The relators alleged that they were duly elected aldermen and as-
sistant aldermen of the city of New York, pursuant to the city char-
ter, and took the oath of office; that the boards of aldermen and as-
sistant aldermen duly organized as such, but that the mayor refused
to recognize them; that the act (chapter 335, Laws 1873) abolishing
Ch.8)
509
ACTIONS FOR SPECIFIC RELIEF.
the board of assistant aldermen and establishing what is termed the
minority system of electing the board of aldermen was unconstitu-
tional; that Samuel Lewis and others, claiming to have been elected
aldermen under said act, organized themselves as a board of alder-
men, were recognized by the mayor, and are pretending to discharge
the duties of the office; and that the Attorney General has refused
to bring an action to determine the title to the office. The motion
was for a writ of mandamus requiring him to commence and prose-
cute such an action.
ALLEN, J. The language of the statute authorizing actions in the
nature of a quo warranto to try the title to office is very guarded,
and does not give the action as of right to every individual who may
think that an office to which he has been legally chosen or appointed
has been usurped by another, or who may volunteer to become an
informer. It says the action "may be brought by the Attorney Gen-
eral" upon his own information or upon the complaint of any pri-
vate party. Code, § 432. Prior to the Revised Statutes leave of the
Supreme Court was required for the institution of proceedings of
this character. 1 Rev. Laws, 108, § 4. Under that system, the
court in this state exercised a sound discretion in granting or with-
holding leave to file an information in the nature of a quo warranto.
People v. Sweeting, 2 Johns. 184. A like discretion was exercised
by the courts in England under similar statutes. Rex v. Sargent,
5 T. R. 467. By the Revised Statutes, the necessity of an applica-
tion to the court was dispensed with and the discretion before then
vested in the court was transferred to and vested in the Attorney
General, whose province it was at the common law to determine
whether a case had arisen in which the public interests required the
proceedings to be instituted. 2 Rev. St. 581, $ 28; Rev. Notes, 5
Stat. 516.
The primary object of the action is to protect the public against the
usurpation of office without legal authority, and the determination
of the right of another to the same office is merely an incident to
the action, and is permitted for the reason that ordinarily the judi-
cial ouster of the incumbent in effect establishes the right of the
adverse claimant to the office, and if the Attorney General brings an
action to eject an alleged usurper from an office, he may be compelled
to join with the people, as plaintiff, the name of the person on whose
relation the action is brought. Code, § 434. He has a discretion
whether he will bring the action, but not as to the proper parties if
an action is brought. It is evident that the Legislature used the
words "may" and "shall” intelligently and with a purpose, and that
no positive duty is imposed upon the Attorney General to bring an
action upon request of a party claiming office from which he is ex-
pelled. The statute does not give the individual claiming the office
or any other person the legal right to compel an action to be brought by
the law officer of the state, or to bring an action in the name of the
510
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
people. The control over the action and the right to bring it is with
the Attorney General, and the courts cannot sit in judgment upon
the exercise of his discretion or coerce his action. The language
of the act is very circumspect and precludes the idea that the Legis-
lature intended to subject the action of the Attorney General in a mat-
ter thus affecting the public interest to the dictation of individual in-
terests or to judicial reviews. Judge Harris, in a well-considered
opinion (reported as People v. Attorney General, 22 Barb. 114),
shows that a mandamus will not lie to compel the Attorney General
to commence an action in the nature of a quo warranto at the in-
stance of a claimant of the office in dispute.
The counsel for the relators concedes that the doctrine that the
right to decide whether a quo warranto should issue is vested in the
Attorney General may be sound when two officers claim under the
same system conceded to be constitutional, but contends that inas-
much as the relators do not claim the seats of the intruders, but for a
restoration of what they claim to be the constitutional government
of New York City, and that they are entitled to distinct offices un-
der the form of government attempted to be abrogated, the deter-
mination of that official is not final, but their right to his interven-
tion by action is absolute. It would seem that in this view any citi-
zen would have an equal right with the relators to inaugurate an
action to test the constitutionality of the law under which the city
officials hold office. The constitutionality of the law can be tested
when the question properly arises in an action in which it becomes
material, but the Attorney General cannot be compelled to bring an
action merely for the settlement of that question. But the right of
the relators is not affected by the questions of law or of fact upon
which they propose to test the right of the incumbents to their of-
fices, and the case is not distinguished favorably to the relators
from People v. Attorney General, supra. The Attorney General may
have erred in judgment, and for this there is no remedy. If he has
acted corruptly or from unworthy motives, and the legal rights of
the relator have been prejudiced, this is not an appropriate remedy.
The order must be affirmed. All concur.
Order affirmed.
PEOPLE ex rel. RASTER v. HEALY, State's Atty.
(Supreme Court of Illinois, 1907. 230 111. 280, S2 N. E. 599, 15 L. R. A.
[N. S.] 603.)
Appeal from Circuit Court, Cook County.
Mandamus, by the People, on the relation of Edwin O. Raster, to
compel John J. Healy, as State's Attorney, to sign a petition for leave
to file an information in the nature of a quo warranto. From a judg-
Ch.8)
511
ACTIONS FOR SPECIFIC RELIEF.
*
*
war-
*"
ment for respondent, petitioner appeals. Reversed and remanded,
with directions,
SCOTT, J.97 This controversy involved the construction of section
1 of chapter 112 of Hurd's Revised Statutes of 1905, which reads:
“That in case any person shall usurp, intrude into, or unlawfully hold
or execute any office or franchise, or any office in any corporation
created by authority of this state,
the Attorney General or
state's attorney of the proper county, either of his own accord or at
the instance of any individual relator, may present a petition to any
court of record of competent jurisdiction, or any judge thereof in
vacation, for leave to file an information in the nature of a qu
ranto in the name of the people of the state of Illinois, and if such
court or judge shall be satisfied that there is probable ground for the
proceeding, the court or judge may grant the petition, and order the
information to be filed and process to issue.
It is contended by the appellee that this statute vests the state's at-
torney of the proper county with an arbitrary discretion in reference
to seeking leave to file an information in the nature of a quo warran-
to in the name of the people, that in the exercise of that discretion
he cannot be controlled by the courts, and that he may refuse to seek
the leave for any reason which to him seems sufficient or may re-
fuse when no reason at all can be assigned for so doing; while appel-
lant argues that in a case such as that now before us, where the pro-
posed individual relator has a personal and private interest in the liti-
gation which he desires to set on foot and where the interest of the
public is purely or largely theoretical, the only discretion vested in
the legal representative of the people is a discretion to determine
whether the documents presented to him by the individual are in proper
legal form, and whether the party seeking the institution of the suit
presents evidence of such facts as establish his legal right to the rem-
edy to be afforded by judgment against the respondent in the quo
warranto proceeding.
Originally a proceeding of this character was by writ of quo war-
ranto against any one who claimed or usurped any office, franchise,
or liberty to inquire by what authority he supported his claim, in or-
der to determine the right. Later the practice was changed, and an
information in the nature of a writ of quo warranto succeeded the
former method. 3 Blackstone's Com. 262, 263. By the common law
the proceeding in quo warranto was employed exclusively as a pre-
rogative remedy, to punish a usurpation of franchises or liberties
granted by the crown, and never as a remedy for private citizens de-
siring to test the title of persons claiming to exercise a public fran-
chise or desiring to establish a private right. In England the infor-
mation, as a means of investigating and determining civil rights be-
tween parties, owes its origin to St. 9 Anne, c. 20, which authorized
97 Only a portion of the opinion of Scott, J., is printed.
512
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION. .
and required the proper officer to file the information by leave of
court, upon the relation of any person desirous of prosecuting the
same, against any person usurping or intruding into any municipal
office or franchise in the kingdom. High on Extraordinary Legal
Remedies (3d Ed.) $ 602. That statute, however, having been passed
in the year of our Lord 1710, has never been in force in this state.
It will be observed from examination of section 1, supra, that the
proceeding is made the vehicle for the assertion of many rights, both
private and public, which could not have been vindicated by this meth-
od at the common law. As originally used, the proceeding was crim-
inal in character, and the offender, upon conviction, was liable both
to fine and imprisonment as well as ouster from the franchise or lib-
erty which he had wrongfully usurped. Under our statute the pro-
ceeding is, in fact, a civil remedy when used for the protection of
private rights, and, in the event of a judgment in favor of the de-
fendant costs may be awarded against the relator. Chapter 112, §
6, supra.
By the common law, and in England prior to the passage of the
statute of Anne, arbitrary discretion was lodged in the Attorney Gen-
eral to determine whether he would move, and that discretion could
not be controlled or reviewed. Attorney General v. Ironmongers' Co.,
2 Beav. 314; Attorney General v. Wright, 3 Beav. 447; People v.
Attorney General, 22 Barb. (N. Y.) 114; People v. Fairchild, 8 Hun
(N. Y.) 334; In re Gardner, 68 N. Y. 467; Everding v. McGinn, 23
Or. 15, 35 Pac. 178. In extending the scope of this proceeding, the
Legislature of this state has not by express words changed or altered
the common law so far as the discretion vested in the Attorney Gen-
eral or state's attorney is concerned, but the character of the discre-
tion possessed by these officers must be determined, to some extent,
by consideration of the rights which the lawmaking power has com-
initted to that discretion.
By the common law the information in the nature of a quo war-
ranto was solely a prerogative remedy. No suit was ever prosecuted
by that remedy at the instance of a private person or for the asser-
tion of a private right. It was used only where a wrong had been
done, or was alleged to have been done, to the king, and it was there-
fore the rule that only the king, or his representative, should deter-
mine whether a suit should be brought to enforce the right of the
king. Where jurisdiction is given the courts to enforce the rights of
private individuals by this method, it is manifest that the power to
determine whether the suit should be brought should not be lodged
in the legal representative of the sovereign power, when, as here, the
right of the citizen is substantial and the concern of the state with re-
gard to the litigation is practically or entirely theoretical. In such
case, the reason for the rule having failed, the rule itself should fail.
This is well illustrated by cases of one class which are constantly aris-
ing in this state. These are cases where it is charged by the owner
Ch.8)
513
ACTIONS FOR SPECIFIC RELIEF.
of realty that his property has been wrongfully included within a
drainage district, and he has attempted to have that question deter-
mined upon an application made for a judgment and order of sale
against his property for the collection of a tax or assessment imposed
by the drainage authorities. In such instances this court has invaria-
bly held that he could not raise the question in that way, but that he
must resort to an information in the nature of a quo warranto for the
purpose of determining whether or not the corporation is engaged in
exercising powers not conferred by law. Shanley v. People, 225 I11.
579, 80 N. E. 277, and cases there cited.
It is manifest that it would be a mere travesty to say, as was said
in the Shanley Case, that in such case the action of the corporate au-
thorities "can only be reviewed in a direct proceeding by quo war-
ranto," and then to say that whether or not application shall be made
for leave to file an information in the nature of quo warranto for the
purpose of reviewing the action of the commissioners rests solely in
the arbitrary discretion of the legal representative of the people, who
has no interest in the welfare of the proposed relator, and who may
give weight to the fact that it is for the benefit of a large number of
property owners who are properly within the district that he should
refuse to permit the use of his name, and who may regard that as
a sufficient reason for declining to act. It is against the policy of our
law that the arbitrary power to determine whether the individual shall
have the privilege to be heard in the courts in the assertion of his
private right should be lodged in any tribunal or officer not a court or
judicial officer as distinguished from a nonjudicial or quasi judicial
officer.
Appellee uurges that it cannot consistently be held that the state's
attorney has an arbitrary discretion as to whether he will seek leave
to file the information where no interest is involved save that of the
public, and that he has no discretion where the interest of a private
individual is concerned, for the reason that such discretion as he has
is conferred upon him by the following words from the statute: “The
Attorney General or state's attorney of the proper county, either of his
own accord or at the instance of any individual relator, may present a
petition to any court of record of competent jurisdiction”—which
words apply alike to cases in the prosecution of which the people of
the state alone are interested and to cases in which no substantial right
is to be asserted except the right of the relator, and in which the in-
terest of the public is purely or entirely theoretical.
It is urged that any such construction would' result in holding that
the word "may," in the language last quoted, means "may" in cases
where only the public interest is at stake, and means "shall” where
private interests are involved; and it is said to be an anomaly to hold
that the same word in the same sentence of a statute may mean one
thing when applied to one class of cases and another thing when ap-
FR.ADM. LAW-33
514
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
plied to another class of cases. We do not think this situation pre-
se any serious difficulty. When the Legislature extended the right
to private individuals to assert private rights by this proceeding, it is
apparent that it was intended that they should have an opportunity to
seek redress for their wrongs by making application to a court, or judge
thereof, for leave to file an information. The duty resting upon the
state's attorney to sign and present a petition for leave to file an in-
formation in the nature of a quo warranto where evidence of facts is
properly presented to him by a proposed relator which shows prima
facie that the relator is legally entitled to the relief, in reference to a
private right, which would be afforded him by a judgment in his fa-
vor in a quo warranto proceeding, is an absolute one.
It follows, therefore, that where he declines to act for any reason
other than that the facts, evidence of the existence of which is pre-
sented to him, do not warrant the relief which the proposed relator
seeks, or that the petition and affidavit or affidavits presented to him
are not in proper legal form, his declination is an abuse of his discre-
tion, conceding that his construction of the statute be correct, and such
an abuse of discretion as amounts to a refusal on his part to exercise
his discretion at all and to a refusal to perform the duty enjoined upon
him by the law.
Courts of last resort in our sister states have frequently found
themselves confronted with the same difficulty which we are now con-
sidering, where Legislatures have extended the scope of the remedy
by quo warranto to include the enforcement of private rights, but have
failed to impose by express words a positive duty upon the Attorney
General or state's attorney to proceed at the instance of the individ-
ual relator, or have failed to provide that the proceeding may be in-
stituted without the co-operation of those officers. It has sometimes
been held that the arbitrary discretion of the public prosecutor still
exists as at common law, and that if he refuses to lend his name to
the proceeding the individual relator is without remedy, even though
the refusal of the officer results from political, selfish, or other im-
proper considerations. In other states relief for the relator has been
suggested by various methods, not substantially different, so far as the
result to be obtained is concerned. [The opinion then cites and quotes
from Bank of Mt. Pleasant, 5 Ohio, 250 (1831), State v. Berry, 3
Minn. [Gil.) 190 (1859), State v. Deliesseline, 1 McCord -(S. C.)
52 (1821), Lamoreaux v. Attorney General, 89 Mich. 146, 50 N. W.
812 (1891), and Cain v. Brown, 111 Mich. 657, 70 N. W. 337 (1896).]
In People v. Ridgley, 21 Ill. 66, and in People v. Waite, 70 Ill. 26,
it was said that our quo warranto statute was a substantial copy of
the statute of Anne. The question now before us was not considered
by the court in those cases, and they are therefore not in point. The
English statute just referred to provides that "it shall and may be
lawful to and for” the proper officer, by leave of court, to file or "ex-
hibit" the information (12 Pickering's Stat. at Large, 190), while our
Ch.8)
515
ACTIONS FOR SPECIFIC RELIEF.
*
*
statute provides that the Attorney General or state's attorney "may
present a petition” to the court, or the judge thereof, for leave to file
the information. The statute of Anne does not expressly require the
officer of the crown to file the application for leave, and yet Rex v.
Trelawney, 3 Bur. 1616, and Rex v. Wardroper, 4 Bur. 1964, hold that
under that statute the officer is without discretion in the matter, but
must apply at the instance of the private relator, and that the only dis-
cretion is in the court; and in State v. Elliott, 13 Utah, 200, 44 Pac.
248, it was said that "except when changed by statute the rule of pro-
cedure is practically the same in this country as in England” under the
statute of Anne.
It is, of course, true that in many cases where the individual re-
lator has a private and personal interest in the suit which he seeks to
set on foot the public also has a substantial interest therein. No in-
jury can result to the public in such instances, however, by requiring
the prosecutor to proceed, for the reason that the court, or the judge
thereof, when the petition for leave to file the information is pre-
sented, is vested with a sound legal discretion to be exercised in de-
termining whether leave to file the information should be granted, and
the court or the judge thereof may, in the exercise of that discretion,
fully protect the rights of the public, and may under some circumstan-
ces, where the public weal demands, refuse leave to file the informa-
tion although the clear legal right of the relator is established. Mc-
Phail v. People, 160 I11. 77, 43 N. E. 382, 52 Am. St. Rep. 306. The
rights and interests of the public being thus fully protected by a sound
legal discretion lodged in the court, or the judge thereof in vacation,
it is manifest that there is no occasion for the exercise by the state's
attorney or Attorney General of a discretion to be used for the same
purpose and for no other purpose.
The discretion possessed by the Attorney General at the common
law is no doubt now possessed by the Attorney General or state's at-
torney in all cases which are, in fact, prosecutions on the part of the
people and which involve no individual grievance of the relator. One
such case is where the wrong is the usurpation of an appointive public
office to which, in the event of judgment of ouster, no particular in-
dividual will have a right to succeed; and another example is where
the object is to secure a judgment ousting a corporation from the en-
joyment of all the franchises which it exercises. In cases, however,
where the proposed relator has an individual and personal right, dis-
tinct from the right, if any, of the public, which is enforceable by a
proceeding in quo warranto, and where he presents to the state's at-
torney a proper petition for his signature with evidence of the facts
necessary to establish the right, it is the duty of that officer to apply
for leave to file an information in the nature of a quo warranto, and,
if he refuses when the matter is properly presented to him, he may
be compelled by mandamus to sign and file the petition for leave.
The practice which may be followed by one who desires to become
516
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
relator is to present to the state's attorney a petition addressed to the
court, or to the judge thereof in vacation, for leave to file an informa-
tion in the nature of a quo warranto, which petition should be so drawn
as to be ready for filing when the signature of the state's attorney is
thereto attached. As was suggested in Cain v. Brown, supra, the affi-
davit or affidavits accompanying the petition must be full and positive
and must be made by a person or persons knowing the facts, and be
drawn in such manner as that perjury may be assigned thereon if any
material allegation contained therein is false. The affidavit or affida-
vits accompanying the petition, after being inspected by the state's
attorney, should, in case he sign the petition, be presented with it for
consideration by the court, or judge thereof, in determining whether
to grant the leave asked. The practice pursued by the state's attor-
ney in this case is not a proper one. Upon the petition being presented
to him, he caused the actual parties to the controversy, by their at-
torneys, to appear before him, and heard them on the proposition as
to whether he should sign and file the petition. This practice has, we
understand, been long pursued in certain counties of this state, and
we have no doubt that the public prosecutor of Cook, in this particular
instance, proceeded as he did believing in good faith that this prac-
tice was the correct one. In our judgment the law of this state does
not authorize him in any case to conduct a hearing of this character,
and he should not have considered the views of the respondent named
in the petition or those of his attorneys.
* IS
08 See People ex rel. Post v. Healy, 231 Ill. 629, 83 N. E. 453 (1908): "Two
questions are involved in this case, both of which must be decided in order
to determine whether the superior court erred in sustaining the demurrer
and dismissing the petition. The first question is whether the appellee, as
state's attorney, is possessed of an arbitrary and uncontrolled discretion to
file or refuse to file a petition for leave to file an information in the nature
of a quo warranto upon the application of an individual having a personal
right enforceable by that proceeding; and the second is whether the mayor
of the city of Chicago has power to remove from office members of the board
of education. If a state's attorney has such discretion, he cannot be coerced
by the writ of mandamus; and if the mayor bas such power, the writ in
this case would not be awarded, for the reason that the object sought would
be unattainable and the writ, useless. The first question was answered in
the case of People ex rel. v. Healy, .230 ill. 280, 82 N. E. 599, 15 L. R. A.
(N. S.) 603. In the consideration and decision of that case we had the
valuable aid of the exhaustive briefs and arguments of the counsel in this
case, both printed and oral. We gave full consideration, at that time, to
every authority and argument presented in this case, and we cannot add
anything to that decision by a restatement here of the reasons on which it
was based. It was there held that in all cases which are, in fact, prosecu-
tions on the part of the people, involving no personal or individual right,
the state's attorney is vested with the same discretion originally exercised
by him at the common law, when an information in the nature of a quo
warranto was solely a prerogative remedy of the crown; but under our stat-
ute, which has enlarged the scope of the remedy for the protection of indi-
vidual rights, if an individual having a private and personal grievance for
which the proceeding is the only remedy shall present a proper petition to
the state's attorney; with evidence of the facts necessary to establish his
right, it is the duty of such state's attorney to apply for leave to file an
information, and if he refuses he may be compelled by mandamus to perform
that duty.”
.
Ch.8)
517
ACTIONS FOR SPECIFIC RELIEF.
SECTION 65.-APPEAL:9
*
*
BOARD OF SUPERVISORS OF BUREAU COUNTY v.
CHICAGO, B. & Q. R. Co.
(Supreme Court of Illinois, 1867. 44 Ill. 229.)
Mr. Justice BREESE delivered the opinion of the court.1
The appellees, in the attempted performance of the duty enjoined
on them by these statutes, presented their list or schedule of their
taxable property for 1863, owned by them in Bureau county, to the
clerk of the county court, in all respects, as alleged by them, in
strict compliance with the statute, which the clerk laid before the
board of supervisors when they met to equalize the assessments in
that county. This schedule presented an aggregate valuation of
$282,383.27 of their property owned in Bureau county, which by
the action of the board was increased to $395,336.57, being 40 per
cent. above the valuation by the company.
99 There is no right to appeal from administrative orders to a court, un-
less given by statute. Brown v. District Council of Narragansett, 21 R. I.
503, 42 Atl. 270, 44 Atl. 932 (1899). See, also, Ohio & Miss. R. Co. v. Lawrence
County, 27 Ill. 50 (1861); Karb v. State, 54 Ohio St. 383, 43 N. E. 920 (1896).
A right to appeal was held to exist by implication in Sawyer V. State
Board of Health, 125 Mass. 182 (1878). See, now, Rev. Laws Mass. C. 75, S
119. and Nelson v. State Board of Health, 186 Mass. 330, 71 N. E. 693
(1904).
An official power of supervision, etc., involves a right to entertain appeals
(Magwire v. Tyler, 1 Black, 195, 202, 17 L. d. 137 (1861.)), unless negatived
by the course of legislation. See Butterworth v. United States, 112 U. S.
50, 5 Sup. Ct. 25, 28 L. Ed. 656 (1884). But as a rule there is no right to
appeal from the head of a department to the chief executive. Memorial of
Captain Meigs, 9 Ops. Attys. Gen. 462 (1860); Bollman's Case, 10 Ops. Attys.
Gen. 526 (1863); Las Animas Grant, 15 Ops. Attys. Gen. 94, 100 (1876).
For a very comprehensive provision, giving a right of appeal, see Comp.
St. Neb. 1909, § 7153 (Code Civ. Proc. § 580): “A judgment rendered, or final
order made by a probate court, justice of the peace, or any other tribunal,
board or officer, exercising judicial functions, and inferior in jurisdiction
to the district court, may be reversed, vacated, or modified by the district
court."
So, also, there is a general" right of appeal from decisions of the boards of
county commissioners to the circuit courts in Indiana. See State ex rel.
Reynolds v. Board of Com'rs of Tippecanoe County, 45 Ind. 501 (1874).
The General Administrative Act of Prussia (July 30, 1883) provides (sec-
tion 127): Against police orders of local police authorities, unless expressly
otherwise provided by law, there shall lie a remonstrance to [certain speci-
fied superior administrative officers]. Against the decision in the last resort
of such administrative officers there shall lie an action in the supreme ad-
ministrative court. The action can be founded only on the allegation: (1)
That the contested decision violates the rights of the plaintiff by not apply-
ing or by misapplying the existing law or administrative regulations issued
by the competent authorities; or (2) that the facts did not exist which
would have justified the issuing of the order.
1 A portion of the opinion only is printed.
518
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
Availing of the act of 1861, by which an appeal is allowed to the
circuit court from the action of the board of supervisors, the com-
pany took an appeal to the circuit court of Bureau county, and, by
change of venue, the cause was transferred to La Salle county, in
the circuit court of which county, at the March term, 1866, such pro-
ceedings were had as resulted in a deduction by that court of the
per cent. thus imposed by the board of supervisors, leaving the sched-
ule of the company as originally presented to the county clerk intact.
To reverse this judgment, the county of Bureau bring the case
here by appeal, and assign various errors, which we have fully con-
sidered.
The first question they make is that the circuit court had no juris-
diction of the appeal, that it was a case not provided for by the fun-
damental law; and we are referred to that clause of the Constitution
conferring judicial power in support of the position. Section 1 of
article 5 declares that the judicial power of the state shall be vested
in one Supreme Court, in circuit courts, in county courts and in jus-
tices of the peace; provided, that inferior local courts of civil and
criminal jurisdiction may be established by the General Assembly in
the cities of this state, but such courts should have a uniform or-
ganization and jurisdiction in such cities. By section 8 of the same
article it is provided that there shall be two or more terms of the
circuit court held annually in each county of this state, at such
times as shall be provided by law; and said courts shall have juris-
diction in all cases at law and equity, and in all cases of appeal from
all inferior courts.2
It is argued with great force and ability that, inasmuch as the
board of supervisors is in no sense a court of any description, an ap-
peal cannot lie to the circuit court from any of its determinations,
and consequently the act of 1861, allowing an appeal by a railroad
company from their determinations, is unconstitutional and void.
Much ingenious, forcible and persuasive argument has been used by
appellants here in support of this view, but we are not convinced by
it. Even if we had a doubt of the power of the Legislature to make
this enactment, we should be constrained, under repeated rulings
of this court, to solve the doubt in favor of the Legislature; for this
court has declared that it is only in a very clear case, where the vio-
lation of the Constitution is plain and palpable, that we will so pro-
nounce. Lucas v. Harris, 20 Ill. 165; People ex rel. v. Auditor, 30
Ill. 434; City of Chicago v. Larned, 34 I11. 203.
In considering the legislation of this state of a character analogous
to this act of 1861, we are by no means convinced of the want of
power in the Legislature to allow this appeal. It may be the board
of supervisors of a county is not a court in the legal acceptation of
that term, but it has power conferred upon it, by the wanton and
2 The Constitution of 1870 (article 6, § 12) says: "Such appellate jurisdic-
tion as is or may be provided oy law."
Ch. 8)
519
ACTIONS FOR SPECIFIC RELIEF.
unjust exercise of which the most vital interests of parties before it
may be rendered totally valueless. Perilous indeed would be their
condition, if those great interests were at the mercy of irresponsible
men, bent, it may be, on inflicting injury for which they could not
atone. It is going a great way to say that any act of the Legis-
lature—a co-ordinate department of the governrnent, and whose
speciality is the enactment of laws that any one of their enactments
has no foundation in the Constitution, an instrument which the law-
makers are sworn to support, and which we must not suppose they
have violated, in the absence of the clearest proof. Hence courts
have always approached this subject with great delicacy, and have
ever inanifested a disposition to sustain the law, in the absence of an
entire conviction of its unconstitutionality. This much of respect is
certainly due to that department of the government, and this court
has always most cheerfully extended it, and ever will.
To insist that a board of supervisors is not a court does not de-
cide the question, as we think. In our legislation, several acts may
be found giving an appeal to the circuit court in cases confessedly not
originating in the exercise of judicial power by a court, as, for ex-
ample, in the case of the trial of the right of property by a sheriff's
jury. The case of Rowe v. Bowen, 28 Ill. 118, was such a case, in
which we held that an appeal lies in many cases not growing out of
judicial proceedings, as upon assessments of damages by commis-
sioners for roads, or for city improvements. So, also, in the case
of the establishment of a road by commissioners, as was held in the
case of County of Peoria v. Harvey, 18 I11. 364. So, where the stat-
ute gives an appeal from an assessment of damages for a right of
way. Joliet & Chicago R. R. Co. v. Barrows, 24 Ill. 562. The
case of Ohio & Mississippi R. Co. v. County of Lawrence, 27 Ill. 50,
occurring before 1861, very distinctly intimates that legislative ac-
tion was necessary to uphold the appeal, and if that existed the
right to appeal was free from doubt. The act of 1861 gives an ap-
peal in express terms.
In view of this legislation, and these judicial decisions, it is too
late to urge a want of jurisdiction in the circuit court to try the
appeal from the board of supervisors, and we must hold that the juris-
diction was complete under the act of 1861, and that statute is not
in conflict with any provision of the Constitution, considered in the
light of long-continued analogous legislation under it. In counties
not adopting township organization, individual taxpayers had an ap-
peal from the county assessor to the county court, and from that court,
through the Auditor of Public Accounts, to the Supreme Court.
Scates' Comp. 1040. Railroad companies are entitled to as much
favor in this regard as individuals, and we have no difficulty in de-
ciding the circuit court had full jurisdiction of the appeal.
*
*
520
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
CITY OF AURORA V. SCHOBERLEIN.
(Supreme Court of Illinois, 1907. 230 Ill. 496, 82 N. E. 860.)
Appeal from circuit court, Kane county.
Proceeding by the City of Aurora against Adam Schoberlein, as
Fire Marshal. From the judgment, the City appeals. Reversed.
CARTWRIGHT, J.: On July 10, 1905, written charges against ap-
pellee, fire marshal of the city of Aurora, were presented to the board
of fire and police commissioners of said city in pursuance of section
12 of an act entitled "An act to provide for the appointinent of a
board of fire and police commissioners in all cities of this state having
a population of not less than seven thousand nor more than one hun-
dred thousand, and prescribing the powers and duties of such board,”
in force April 2, 1903. Laws 1903, p. 97. After an investigation,
at which appellee was heard in his own defense, the board found
him guilty as charged and made an order removing him from office.
Within 10 days after the entry of the order appellee filed with the
secretary of the board a bond for an appeal to the circuit court of
Kane county, in which said city is located, and on November 21,
1905, the secretary transmitted to the court a transcript of the pro-
ceedings before the board, in compliance with section 18 (page 100)
of said act, which purports to allow an appeal to the circuit court from
any order of a board created under the act. The record recites that
appellant filed its motion to dismiss the appeal on the ground that
section 18 is unconstitutional and void, and the court denied the mo-
tion. No bill of exceptions was taken at the time, and there was no
extension of time for tendering such a bill.
The appeal was subsequently called for trial before another judge,
and the court ordered a trial de novo, agairist the objection of appel-
lant, and called a jury against like objection. The files of the pro-
ceeding consisted of the written charges, the evidence produced be-
fore the board, and the order of removal, and the jury were sworn
to try the issues joined and a true verdict render according to the
evidence. Both parties introduced testimony relating to the charges,
and at the conclusion of the evidence the court, on motion of ap-
pellee, instructed the jury to find him not guilty. A verdict of not
guilty was thereupon returned, and the court entered an order re-
versing the order of the board removing appellee from office, and
ordered the board forthwith to reinstate and re-employ him as fire
marshal, and to allow him to perform the duties and services con-
nected with that office and collect the salary and compensation al-
lowed therefor, and also rendered judgment against appellant for
costs. From that judgment an appeal was prosecuted to this court,
and among other assignments of error is one that the circuit court had
8 Only a portion of the opinion of Cartwright, J., is printed.
Ch.8)
521
ACTIONS FOR SPECIFIC RELIEF.
*
er.
no jurisdiction of the subject-matter, and that section 18 of said act
authorizing an appeal is unconstitutional and void.
The board of fire and police commissioners of the city of Aurora
is a branch of the executive department of the city government, and
all the acts and powers of the board are purely ministerial or execu-
tive. The Legislature could not confer upon the board any judicial
power whatever. By article 3 of the Constitution the powers of the
government are divided into three distinct departments, the legisla-
tive, executive, and judicial, and it is provided that no person or
collection of persons, being one of these departments, shall exercise
any power properly belonging to either of the others, except as there-
inafter expressly directed or permitted. By section 1 of article 6 the
judicial powers are vested in certain courts, and a board of fire and
police commissioners cannot assume or exercise any part of the ju-
dicial power. George v. People, 167 I11. 447, 47 N. E. 741. Nei-
ther does the act purport to give to such boards any judicial power.
They are authorized by statute to remove an officer for cause, after a
hearing and an opportunity to make a defense, and that authority
implies the power to judge of the existence and sufficiency of the
cause; but there is no such thing as title or property in a public of-
fice, and the removal of an officer is not the exercise of judicial pow-
Donahue v. Will County, 100 Ill. 94; Stern v. People, 102 Ill.
540. No right of life, liberty, or property was involved or adjudi-
cated before the board in this case. Although the exercise of the
power of removal involved judgment and discretion, it was not a
judicial act. It has been said that where an act is the result of judg-
ment and discretion and a decision upon the facts it is of a judicial
nature; but there is a clear distinction between such acts and the
exercise of judicial power which adjudicates upon and protects the
rights and interests of individuals and to that end construes and ap-
plies the law.
An appeal is a step in a judicial proceeding, and in legal contem-
plation there can be no appeal where there has been no decision by a
judicial tribunal. Two things are essential to an appeal, in its
proper sense: First, the decision of a judicial tribunal; and, second,
a superior court invested with authority to review the decision of
the inferior tribunal. Elliott on Appellate Procedure, § 15. There
have been cases where the jurisdiction of courts has been sustained
in what were called appeals from inferior bodies having nonjudicial
powers, such as the case of establishing a road by commissioners
involving an appraisement of damages (County of Peoria v. Harvey,
18 Ill. 364), or an assessment of damages for a right of way (Joliet
& Chicago Railroad Co. v. Barrows, 24 Ill. 562), or the trial of a
right to property levied upon and claimed by a third party before a
sheriff and jury (Rowe v. Bowen, 28 Ill. 116), or an assessment of
property for taxation (Bureau County v. Chicago, Burlington &
522
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
Quincy Railroad Co., 44 Ill. 229). The nature of such proceedings
was explained in the case of Maxwell v. People, 189 Ill. 546, 59
N. E. 1101, where it was held that there can be no such thing as an
appeal, in a legal sense, from a nonjudicial body to a court. It was
said that appellate jurisdiction is the attribute of a court created for
reviewing the decisions of inferior courts and not of inferior bodies
nonjudicial in character, citing People v. Cook Circuit Court, 169 Ill.
201, 48 N. E. 717, and it was held that this court takes jurisdiction
of what is called an appeal in cases relating to the revenue, in the
exercise of its original jurisdiction conferred by the Constitution.
If a controversy belongs to a class of cases of which a court has orig-
inal jurisdiction, and it is brought before the court in the method pre-
scribed by the Legislature, the court may take jurisdiction by virtue of
its general powers; but so far as the remedy is judicial it begins with
a presentation of the case to the court.
The cases in which appeals from nonjudicial bodies to courts have
been recognized have involved individual or property rights of which
the court had jurisdiction under some other form of procedure, and
belonged to classes of cases in which the court, acting judicially,
could afford a remedy. This proceeding is not of that character.
The section in question purports to authorize an appeal from any
order of the board by any person interested or affected, and if it
should be sustained it would result in the circuit courts assuming
and exercising executive powers. They would practically control
the appointment and removal of members of fire departments in
the cities of this state to which the act applies, by the exercise of
judgment and discretion as to fitness and qualifications of individuals
for positions in such departments, and not by adjudicating rights
or applying the rules of law. That would be the exercise of execu-
tive powers, which the separation of departments of the govern-
ment precludes the court from exercising.
The fact that courts have jurisdiction to issue the common-law
writ of certiorari to determine whether inferior bodies have acquired
jurisdiction to act and have proceeded according to law can have
no influence upon the question here involved. The courts do not, by
virtue of that writ, review the decisions of the inferior bodies or de-
termine the facts. It has been held competent for the Legislature to
confer on persons holding judicial offices the power to appoint of-
ficers whose selection or appointment cannot be classed as belong-
ing to either of the departments of government (People v. Morgan,
90 I11. 558; People v. Hoffman, 116 Ill. 587, 5 N. E. 596, 8 N. E.
788, 56 Am. Rep. 793); but we do not think there can be any doubt
that officers of a fire department belong to the executive branch of
the government.
Section 18, which purports to authorize an appeal to the circuit
court from any order of a board of fire and police commissioners, is
Ch.8)
523
ACTIONS FOR SPECITIC RELIEF.
unconstitutional and void, and the judgment of the circuit court is
reversed.
Judgment reversed."
THOMPSON et al. v. KOCH.
(Court of Appeals of Kentucky, 1895. 98 Ky. 400, 33 S. W. 96.)
Application of August Koch to R. H. Thompson and others, con-
stituting a license board, for a liquor license. The license was re-
fused, and applicant appealed to the circuit court, which granted the
license, from whose judgment the board appeals. Reversed.
PRYOR, C. J. Under the provisions of the statute for the govern-
ment of cities of the first class in reference to the retailing of spirit-
uous liquors, it is provided: "The judge of the city court, the chair-
man of the board of public safety, and the president of the com-
missioners of the sinking fund, are constituted a license board, the
judge of the city court to be the chairman, and the secretary of the
sinking fund shall be ex officio secretary." St. Ky. § 3030.
Section 3031 defines the manner in which the application for a
license shall be made, and the qualifications of the applicant. Sec-
tion 3033 provides that no license shall be granted to any person who
has not the qualifications prescribed in section 3031, and further
provides: “No license shall be granted to retail liquor in any pre-
cinct, if in the opinion of the board, the retailing of liquor at the
place named will be injurious to the people thereof, or if a majority
of the voters of the precinct registered at the last annual registra-
tion remonstrate against the granting of the same.” An appeal may
be had to the circuit court, as is provided in the following section.
The section following, which is section 3034, provides: "Any li-
cense granted by said board may be revoked by it, after an open trial
with due notice to the licensee, whenever in the judgment of said
board, the licensee has conducted a disorderly house, or violated the
law with respect to the sale of liquor, and either party who shall feel.
aggrieved by the decision of the board may have an appeal to the
circuit court."
It is conceded the power to grant the license is with this license
board, and, from the express language of the statute, the board, in its
4 In Sangamon County v. Brown, 13 Ill. 207 (1851), it was held, where the
statute gave an appeal from the decision of the county court in highway
proceedings to the circuit court, the case to be acted upon in such manner
is the court may determine, with a view to justice and the establishment
of the road, that the only question to be reviewed, if the county court ac-
quired jurisdiction and proceeded regularly, was the amount of damages, and
that the question whether the public interests demanded the construction of
the road was a matter resting in the sound discretion of the county court,
with which the circuit court had nothing to do.
See, also, Board of Commissioners of Vigo County v. Davis, 136 Ind. 503,
36 N. E. 141, 22 L. R. A. 515 (1894).
524
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
discretion, may refuse the license when, in the opinion of its members,
the retailing of liquor will be injurious to the people of the precinct in
which the liquor is proposed to be sold, or when a majority of the
registered voters in the precinct at the last annual registration re-
monstrated against the granting of this privilege to the applicant.
The board, constituted as the statute requires, heard the testimony
for and against the applicant in this case, and refused to grant the
license. An appeal was taken to the circuit court, and there the case
heard de novo, and a judgment entered granting the license, and from
that judgment an appeal has been taken to this court.
It is insisted, by counsel for the applicant that no appeal lies from
the judgment below to this court; that the board of license is merely
advisory, is at best a tribunal with special and limited power, and
cannot in any sense be deemed a court, because the present constitu-
tion expressly prohibits the lawmaking power from creating any other
courts than those mentioned in that instrument. We perceive 110
objection to that character of legislation requiring or granting ap-
peals from the judgments of boards of cities and towns, whether
of the one class or the other, where those boards are vested with the
power of hearing and determining questions, affecting the rights of
the citizen, that pertain to the particular municipality in which those
rights are asserted or clenied. The power to grant licenses niust be
vested in somebody connected with or created for the purposes of
municipal government, and, besides, this appeal comes from the cir-
cuit court, and its judgments are subject to the revisory power of this
court, unless prohibited by law. An appeal lies to this court from the
judgments of circuit courts in all cases other than those excepted by
the statute. This law of license is a general law, applicable to all
cities of the first class; and, the circuit court entertaining jurisdiction
of the appeal, the right of appeal to this court is unquestioned, as it is
not within any of the exceptions to the statute in which this court
is denied appellate jurisdiction.
Counsel for the appellant insists that the circuit court had no power
to reverse the judgment of the board rejecting the license, because
that tribunal was invested with the discretionary power of granting or
refusing such applications, and to take this discretion from the board,
and place it with the judge of the circuit court, was never contem-
plated by the legislature. While it is not necessary to determine this
question, it seems to us clear that, when such discretion is confided
to certain boards, for the purposes of municipal government, and an
appeal allowed, it should appear that the judgment of the board was
the exercise of an arbitrary discretion before the circuit court would
disregard its judgment, and therefore the circuit court should have
before it the testimony upon which the board acted; for, otherwise,
this discretion would be taken from those constituting the board,
and confided alone to the circuit court. If the case is to be heard de
novo, then the applicant, instead of seeking the judgment of the board
Ch.8)
525
'ACTIONS FOR SPECIFIC RELIEF.
as to his qualifications, and the necessity for granting the license,
could decline to introduce his testimony, and submit to a judgment
against him, and, .by an appeal to another tribunal, deprive the
inunicipality of the judgment of those selected by law to pass upon
such questions.
When, therefore, this discretion is confided to certain boards, the
facts upon which their action was based should go to the circuit court,
in order to enable that court to determine whether or not the judg-
ment of the board was an exercise of arbitrary power. If this mode of
practice is not to be adopted, and we think this discretionary power
cannot exist without it, then it appears, from the testimony heard be-
low, that a decision inight well have been rendered for either party;
and, assuming the board acted alone upon the testimony heard by the
circuit judge, still there was nothing to show that any arbitrary action
was taken by the board, and for that reason, if no other, the judgment
should have been affirmed.
The judgment of the circuit court is therefore reversed, with direc-
tions to dismiss the appeal taken from the license board."
5 See Hopson's Appeal, 65 Conn. 140, 31. Atl. 531 (1894): "The act of 1893,
in permitting an appeal from the decisions of county commissioners to the
superior court, called into action a judicial function for dealing with such
appeal; but it did not alter the actual nature or extent of the power origi-
nally vested in the county commissioners for the selection of proper persons
and proper places for the sale of liquors. The discretion necessary to the
exercise of that power by the county commissioners is, by the appeal, trans-
ferred to the judge of the superior court; but there is nothing in the act
which can be construed as attempting to vest in this [the Supreme] court
the final exercise of that discretion, or the control of its exercise by a judge
of the superior court. In dealing with such appeal the superior court is
bound by the rules of law regulating the conditions on which the discretion-
ary power of selection shall be exercised, such as the meaning and effect of
the language of the regulating statutes, and the acts required by statutory
regulations in order to permit any action on the original application or the
appeal. The court is also bound by those fundamental rules of law that cou-
trol all exercise of judicial, or quasi judicial, power. It may not, for in-
stance, arbitrarily refuse to hear any evidence, or to listen to a person en-
titled 'to be heard. The failure of the court to comply with such rules may
be error, which this court upon appeal will correct. But in exercising the
duty of determining a suitable person and a suitable place for the sale of
liquors, imposed on the county commissioners, and, by force of the appeal,
transferred unchanged in its nature and extent to a judge of the superior
court, the judge is engaged in settling a matter of discretion. In this case,
certainly, the court was not engaged in the trial of 'matters of fact in any
cause or action,' within the meaning of the statute regulating appeals to
this court."
In Norwalk Street Railway Company's Appeal, 69 Conn. 576, 596, 37 Atl.
1080, 1087, 39 L. R. A. 794 (1897), the court said: “In Hopson's Appeal, 65
Conn. 140, 31 Atl. 531 (1894), we held that the selection or appointment of
sạch a licensee was a means apparently appropriate both to the exercise of
executive and judicial power; that the uniform practice of courts and Legis-
lature in so treating such appointment might be safely accepted when the
distinction to be drawn must be subtle and doubtful."
Further, in Norwalk Street Railway Company's Appeal, 69 Conn. 576, 37
Atl. 1080, 39 L. R. A. 794 (1897): "The act of 1893 confers upon city coun-
cils certain powers in establishing regulations for the location, construction,
and operation of street railways, and requires a council, if requested by a
1
526
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
STATE ex rel. SERES V. DISTRICT COURT OF FIRST JU-
DICIAL DISTRICT.
(Supreme Court of Montana, 1897. 19 Mont. 501, 48 Pac. 1104.)
Application of the State of Montana, on the relation of J. R. Ser-
res, for mandamus against the District Court of the First Judicial
District of the state of Montana in and for the county of Lewis and
Clarke. Writ awarded.
This is an application for a writ of mandamus. The petitioner
alleges that he is a regular graduate of an accredited college of med-
icine; that he attended at least four courses of lectures at said
college, of six months each; that on the first Tuesday of October,
1896, petitioner was an applicant to the board of medical examiners
for a certificate entitling him to practice medicine and surgery in
the state of Montana; that a meeting of said board was held in
Helena on the day aforesaid ; that at said meeting the petitioner pre-
sented his diploma from said medical college, evincing his gradua-
tion; that said diploma was found by the said board of examiners
to be genuine, and issued by a regular medical college, legally or-
ganized and in good standing; that he thereupon submitted to an
examination in the various branches prescribed by law and the said
board of examiners, and filed with the said board his examination
papers, written upon the questions by the said board propounded in
the said various branches; that thereupon said board denied the pe-
titioner's application for a certificate to practice medicine and sur-
gery in the state of Montana upon the ground that said examination
papers showed that the petitioner had not the requisite learning to
entitle him to such certificate; that, after being notified by said board
of its determination not to grant this petitioner such certificate, he
within 30 days duly appealed from the decision of the said board
of medical examiners to the district court of the First judicial dis-
trict of the state of Montana in and for the county of Lewis and
Clarke; and that, after said appeal was duly taken to the district
railway company, to take some action within sisty days, and to notify the
company in writing of its action. Whenever a council fails to give such
written notice, the act of 1895 confers the same powers upon the 'superior
court or any judge thereof,' to be exercised on application of a railway com-
pany, and calls this application an 'appeal.'
The so-called 'appeal’
in this case is not a process to invoke the judicial power. It is simply an
application to the superior court to exercise a legislative function.
We cannot recognize such a right, because the recognition leads inevitably
to the obliteration of any line of separation between the judicial and other
departments of the government.”
See New York Railroad Law, $ 94.
See, also, Appeal of Spencer, 78 Conn. 301, 61 Atl. 1010 (1905); Tyson v.
Washington Co., 78 Neb. 211, 110 N. W. 634, 12 I. R. A. (N. S.) 350 (1907).
As to appeals froin administrative action concerning questions of right,
see United States v. Duell, 172 U. S. 576, 19 Sup. Ot. 286, 43 L. Ed. 559
(1899).
Ch. 8)
527
ACTIONS FOR SPECIFIC RELIEF.
court, the said district court, on the motion of the county attorney of
the said county and the Attorney General of the state, dismissed the
petitioner's appeal, upon the ground that the said court had no ju-
risdiction to try and determine the same.
The petitioner asks for a writ of mandate in this proceeding, com-
manding the district court to reinstate his appeal and to proceed to
the hearing and determination thereof. On the return of the writ,
the Attorney General, for the said district court, demurred to the
petition for the reasons--First, that said petition does not state facts
sufficient to entitle said petitioner to the relief prayed for; and, sec-
ond, that said petition shows affirmatively that the action of the med-
ical board in refusing to issue a certificate for the cause specified
was final, and not subject to review by any appellate tribunal, and
that said defendant (district court), in dismissing said petition, act-
ed correctly and within its jurisdiction, in that no appeal lay from the
action of the board to said defendant.
PEMBERTON, C. J. (after stating the facts). The only question
presented here is this: Does the statute allow an appeal to an appli-
cant who has been refused a certificate by the medical board al-
thorizing him to practice medicine and surgery in this state on the
ground that the applicant's examination papers show that he has
not the requisite learning to entitle him to such certificate?
Counsel for the defendant, the Attorney General, contends that
the right of appeal exists only when the certificate is refused or re-
voked by the board for unprofessional, dishonorable, or immoral con-
duct, and that no appeal lies from the refusal of the board to issue
a certificate on the ground of the incompetency of the applicant.
That part of section 603, Pol. Code, which provides for appeals
from the action of the medical board is as follows: "In all
of the refusal or revocation of a certificate to practice medicine by
the said board, the person aggrieved thereby may appeal from the
decision of the board to the district court of the county in which
such revocation or refusal was made."
Counsel for defendant contends that this provision only gives the
right of appeal where the certificate is refused or revoked by the
board for unprofessional, dishonorable, or immoral conduct, and that
State v. District Court of First Judicial District, 13 Mont. 370, 34
Pac. 298, in which this court discussed the right of appeal from
action of the medical board, does not go to the extent of deciding
that an appeal lies in cases like the one at bar.
But, in examining our statute, we find no language that restricts
the right of appeal to any particular class of cases. The terms of
the statute are general, and give the right of appeal “in all cases of
the refusal or revocation of a certificate to practice medicine by the
said board.” A number of the states have statutes like ours, but
we are not referred to any decision of any of the states where the
precise question here involved has been adjudicated and determined.
se
528
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
The law provides that appeals in such cases shall be conducted like
appeals from a decision of a board of county commissioners dis-
allowing a claim. Pol. Code, 603. Appeals from actions of boards
of county commissioners are prosecuted and tried like appeals from
a justice of the peace. Id. § 4289. Appeals from a justice court are
tried de novo.
It is said by counsel for the defendant that a trial of this case de
novo in the district court would be impracticable, if not impossible;
that the court or jury could not try and determine the question of
petitioner's competency to practice medicine. It is further insisted
that the law does not provide any procedure by which the district
court could properly try and determine this question.
In State v. District Court of First Judicial District, supra, this
court held that the right of appeal was not rendered nugatory because
the law did not prescribe rules to guide the district court in try-
ing such appeal. This was when there were no proceedings or rules
prescribed by law for appeals in such cases. The present statutes
do prescribe the manner of appeal, and, if the proceedings prescribed
by the statute are inefficient, under the provision of section 205, Code
Civ. Proc., "any suitable process or mode of proceeding may be
adopted which may appear most conformable to the spirit of the
Code." Awkward, difficult, and unsatisfactory as a trial of this case
in the district court might, and doubtless would, be, we are of the
opinion that the learned district judge would be able to devise ways
and means not incompatible with the Code for disposing of the case.
Impolitic and unwise as this law may be, still, if the Legislature has
given the petitioner the right of appeal in this case, we have neither
the right nor disposition to deprive him of its exercise by any unau-
thorized construction of the statute or by any apparent judicial leg-
islation. Unless, we construe or legislate something very material
into the statute not placed there by the Legislature, we think the pe-
titioner, under the law, which is broad and general in its terins, is
entitled to prosecute his appeal in this case. Whether or not such
laws are wise or unwise, politic or impolitic, are questions for the
legislative branch of the government, and we have no right or in-
clination to invade that domain.
The order of the district court dismissing the appeal in this case
is reversed, and a peremptory writ of mandate is ordered to issue,
directing that the district court reinstate said appeal and proceed to
the trial of the cause.
Reversed.
BUCK, J., dissents.
8
6 The concurring opinion of Hunt, J., is omitted.
See Laws Mont. 1907, c. 100, providing for a trial of appeals by a jury
of six physicians.
Compare Raaf v. State Board of Medicial Examiners, 11 Idaho, 707, 84
Pac. 32 (1906); also Munk v. Frink, 75 Neb. 172, 106 N. W. 425 (1905).
As to whether the provision by statute for an appeal excludes other reme-
Ch.8)
529
ACTIONS FOR SPECIFIC RELIEF.
SECTION 66.-DEFENSE TO ENFORCEMENT PRO-
CEEDINGS
This is a very common method of testing the legality of adininistrative
action, illustrated by numerous cases in this collection. See the following:
Galbraith y. Littiech, 73 Ill. 209 (1874); Nealy v. Brown, 6 Ill. 10 (1844);
State v. Weimer, 64 Iowa, 243, 20 N. W. 171 (1884); People v. Hopson, 1
Denio (N. Y.) 574 (1845); Hagar v. Reclamation District, 111 U. S. 701,
4 Sup. Ct. 663, 28 L. Ed. 569 (1884); Waye y. Thompson, L. R. 15 Q. B.
342 (1885); Philadelphia v. Scott, 81 Pa. 80, 22 Am. Rep. 738 (1876); Met-
ropolitan Board of Health v. Heister, 37 N. Y. 661 (1868); Health Depart-
ment v. Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am.
St. Rep. 579 (1895); Salem y. Eastern Railroad Co., 98 Mass. 431, 96 Am.
Dec. 050 (1868); Com. v. Sisson, 189 Mass. 247, 75 N. E. 619, 1 L. R. A.
(N. S.) 752, 109 Am. St. Rep. 630 (1905); Com. V. Kinsley, 133 Mass. 578
(1882); Martin v. State, 23 Neb. 371, 36 N. V. 554 (1888); King v. Venables,
2 Ld. Raym. 405 (1725); People v. McCoy, 125 Ill. 289, 17 N. E. 786 (1888);
State v. Lamos, 26 Me. 258 (1846); Hutton v. Camden, 39 N. J. Law, 122,
23 Am. Rep. 203 (1876); State v. Kansas Central R. Co., 47 Kan. 497, 28
Pac. 208 (1891); Interstate Commerce Commission v. Cincinnati, etc., R.
Co., 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243 (1897); Wilson v. Eureka
City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603 (1899); McLean v. Jeph-
son, 123 N. Y. 142, 25 N. E. 409, 9 L. R. A. 493 (1890); Harrington v. Glid-
den, 179 Mass. 486, 61 N. E. 54, 94 Am. St. Rep. 613 (1901); Fire Depart-
ment v. Gilmour, 149 N. Y. 453, 44 N. E. 177, 52 Am. St. Rep. 748 (1896);
Spencer & Gardner v. People, 68 Ill. 510 (1873); Interstate Coinmerce Com-
mission v. Alabama Midland R. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed.
414 (1897).
dies, and especially also whether it prevents defects of administrative action
to be availed of by way of defense to proceedings brought on behalf of the
public against the individual, see Governors of Bristol Poor v. Wait, 1 Ad. &
El. 264 (1834); Allen v. Sharp, 2 Exch. 352 (1848); Clinkenbeard v. United
States, 21 Wall. 65, 22 L. Ed. 477 (1874).
See, for application of statutory right of appeal, the following cases in
this collection: Gross' License, 161 Pa. 344, 29 Atı. 25 (1894); Whitely v.
Platte Co., 73 Mo. 30 (1880); Fuller v. Colfax Co. (C. 0.) 14 Fed. 177 (1882);
Lillienfeld's Case, 92 Va. 818, 23 S. E. 882 (1896); Gilbert v. Columbia
Turnpike Co., 3 Johns. Cas. (N. Y.) 107 (1799).
FR.ADM.LAW-34
530
(Part 2
RELIER AGAINST ADMINISTRATIVE ACTION.
CHAPTER IX
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL
CONTROL
SECTION 67.-IN GENERAL
STATE ex rel. COOK V. HOUSER.
(Supreme Court of Wisconsin, 1904. 122 Wis. 534, 559, 100 N. W. 964, 971.)
MARSHALL, J.1
Whatever privileges are within the pow-
er of the Legislature to grant may be granted upon such conditions
and subject to such regulations as it in its wisdom may see fit to
impose. That is elementary. In dealing with this subject care should
be exercised to distinguish between common-law rights, which are
within the protection of constitutional restraints upon legislative au-
thority, and mere legislative creations. A failure in that regard
would be quite likely to lead one astray. The right to vote and to
secrecy in respect to the elector's opinion thus expressed cannot be
impaired, but the enjoyment of those rights which are within consti-
tutional protection may have every legislative aid which the wisdom
of the lawmaking power may see fit to afford. The power of reg-
ulation to that end is limited only by what is reasonable. Any at-
tempt to regulate passing that barrier is destructive of the right involv-
ed, not an aid to its enjoyment, and hence is not legitimate.
So the plan for an official ballot, and opportunity for party repre-
sentation thereon, are matter of legitimate legislative creation; hence
the conditions of party representation upon such ballot are purely
within legislative control. Whoever joins a political party impliedly
submits to regulations in that regard, as in effect by-laws of the
organization, the same as every member of any other voluntary as-
sociation, upon joining the same, irrevocably pledges himself to be
bound by the decisions of its tribunals, save as regards jurisdictional
errors. This court very recently dealt with such relations in Bartlett
v. L. Bartlett & Son Co., 116 Wis. 450, 93 N. W. 473, and Wood v.
Chamber of Commerce, 119 Wis. 367, 96 N. W. 835.
Errors of judgment committed by such a tribunal, however nu-
merous or serious, even though by reason thereof justice, except as
regards mere form, be denied and wrong from an original stand-
point be made to bear the stamp of right, does not militate at all
*
*
1 Only a portion of the opinion of Marshall, J., is printed.
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
531
against the binding effect of the result. All must bow to it as the
right of the matter from a legal standpoint, however much from a
moral aspect it may appear to be wrong. That applies to all tribu-
nals of voluntary organizations and to all special tribunals created by
law to deal with legislative rights and privileges. There are so many
illustrations of approved legislation as regards the latter that it is
strange that a layman, even, should marvel at the existence of such
laws, and passing strange that others should. There are hundreds
of such tribunals. Every board of review, every one of the numerous
official boards and councils empowered to act judicially, is such a
one. Who would expect to avoid the decision of a board of review,
or the board of law examiners, or the board of control, or the board
of regents, or the board of dental examiners, as to any matter with-
in its jurisdiction, except for errors of a jurisdictional character?
The books are full of diecisions in harmony with what is here sug-
gested. The following are examples: State ex rel. Coffey v. Chit-
tenden, 112 Wis. 569, 88 N. W. 587; State ex rel. Vilas v. Wharton,
117 Wis. 558, 94 N. W. 359; State ex rel. Augusta v. Losby, 115
Wis. 57, 90 N. W. 188; State ex rel. Heller v. Lawler, 103 Wis. 460,
79 N. W. Yle; State ex rel. N. C. Foster Lumber Co. v. Williams,
123 Wis. 61, 100 N. W. 1048, and State ex rel. Gray v. Common
Council, 104 Wis. 622, 80 N. W. 942.
*
*
SECTION 68.–POLICE POWER—JURISDICTIONAL PRE-
REQUISITES
WARNE V. VARLEY et al.
(Court of King's Bench, 1795. 6 Durn. & E. 443.)
To an action of trespass for taking the plaintiff's goods (leather)
and detaining them eighteen days, the defendants pleaded a justi-
fication under St. 2 Jac. I, c. 22, in which, after alleging that they
were duly appointed according to the act to view and search all tan-
ned hides, skins or leather that should be brought to Leadenhall
Market and sworn to execute their office truly, and that Varley was
also appointed a sealer under the act, they stated that the plaintiff,
a tanner, on the 25th of November, 1795, offered for sale in Leaden-
hall Market the goods in question, which "had not after the tanning
thereof been well and thoroughly dried in the judgment of the de-
fendants according to the true intent and meaning of the said act
of Parliament, wherefore the defendants by virtue of their office
seized and carried away the said goods, and detained them in their
532
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
custody until they might be duly tried in manner and form as is
directed by the said statute, etc., and that within a reasonable and
convenient time after the said seizure, to wit, on the 28th of November,
the defendants gave notice of the seizure to the Lord Mayor of
London, in order that triers might be appointed for trying the same
according to the directions of the said act, etc.
The plaintiff replied that the said skins, after the tanning thereof
and before they were put up to sale, had been well and thoroughly
dried according to the true intent and meaning of the said act, and
that after the seizure they were duly tried by six persons (naming
them) duly appointed by the Lord Mayor to be triers, who upon
their oaths determined that the leather had been well and thoroughly
dried after the tanning according to the true intent and meaning
of the act, and that the leather was afterwards restored to him.
Lord KENYON, C. J. I should have been glad to have found some
ground on which the defendants' justification could have been sup-
ported, because they appear to have acted fairly and bona fide; but
after comparing the pleadings with the act of Parliament, it is im-
possible to decide in their favor. This act was made early in the
time of James the First, when the trade of this country was in its
infancy, and in a reign during which, notwithstanding what wits
have said concerning the pedantry of the monarch, more wholesome
acts of Parliament were made for the benefit of the trade of the
country than in any subsequent period of the same duration. But
this furnishes one of many examples that the wisest legislature in
making a law do not forsee every possible case that may happen. I
have no doubt but that, if the case in question had occurred to their
minds when they fraîned this law, they would have provided for it.
But, sitting in a court of law, we are bound to decide on the act
of Parliament as we find it, and are not at liberty to introduce into
it any regulations, however wise and proper they may appear to
This statute, after directing that searchers shall be appointed,
authorizes them to seize leather of a certain description, and to sub-
mit it to the future inquiry of the triers. It seems reasonable that,
if these searchers exercise their authority bona fide, and only seize
such leather for the examination of the triers as in their judgment
ought to be examined, they should be protected; in such a case they
do not transgress any moral duty, and I should have been glad to
find that they had not transgressed any legal duty. But the act of
Parliament affords them no such protection. It only empowers them
to seize leather which is not dried, etc., according to the true in-
tent and meaning of the act. Here the plea does not allege that
the leather was insufficiently dried'; and the replication does state ex-
pressly that it was sufficiently dried, etc., according to the true in-
tent and meaning of this act. Therefore it appears on the record
that the defendants seized leather which the statute did not au-
thorize them to seize.
LIS.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
533
This case does not differ in principle from those alluded to of
custom-house and excise officers. In those cases which more fre-
quently occur, the legislature have gradually introduced new laws
as the occasion called for them. Custom-house officers were, until
a late act of Parliament (19 Geo. II, c. 34, § 16) was passed to pro-
tect them, liable to an action for seizing goods, if it ultimately turned
out that the goods were not the subject-matter of seizure, even though
there was a probable cause for seizing them. Excise officers con-
tinued in this situation to a later time, upon a supposition (I be-
lieve) that the statute respecting custom-house officers extended to
them; and when it was discovered that they were not protected
by the former act, the legislature made a similar law (23 Geo. III, c.
170, § 29) for their protection. So in the cases of justices of the
peace (1 Jac. I, c. 3, 21 Jac. I, c. 12, and 4 Geo. II, c. 44) and con-
stables the legislature have made laws in their favor when acting
in the execution of their office. All these instances show the pro-
priety of protecting persons acting under this act of Parliament when
they act bona fide; but the legislature not having given them any
protection except when they seize leather of a certain d'escription,
the only question is whether the leather in question was or was not
the subject of seizure; and that question is against the defendants
by their own admission.
On the other point made at the bar, I am at a loss how to state a
question about it. The injury done to the plaintiff is by the imme-
diate act of the defendants, and not a consequence arising from some
other act; for this trespass is the proper remedy. The authorities
cited on behalf of the plaintiff show this. We are therefore bound
to give judgment against the defendants.
ASHHURST, J. This seems to be a harsh proceeding against the
defendants. They are bound to act under the terrors of a penalty,
and it is hard that they should be liable in an action of trespass
for a mere error in judgment; but the legislature have not provided
for such a case. The act of Parliament only authorizes the searchi-
ers to seize goods of a certain denomination; the goods in ques-
tion are not of that description; therefore the seizure is illegal, and
consequently the defendants are trespassers.?
2 See Thompson v. Farrer, 9 Q. B. D. 372, 384 (1882), per Cotton, L. J.:
“The construction of the sixth section of the Merchant Shipping Act, 1876,
is open to some difficulty. It has been contended that the vessel being in
fact unsafe is a condition precedent to the exercise of all the powers given by
the section. But this cannot, in my opinion, be the true meaning of the
earlier part of the section which gives rise to this argument. For if this is
the true construction, a vessel could not lawfully be detained, even for the
purpose of being surveyed, unless she is in fact unsafe. This is inconsistent
with the first subdivision, which expressly gives power to detain provision-
ally if the Board of Trade have reason to believe the ship is unsafe, and the
contention is inconsistent with the first part of the section itself, which as-
sumes that a ship coming under the provisions of this part of the section
may be released, which in the case of a ship in fact unsafe would not be
right. The section is not very correctly framed, but I think its meaning is
534
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
THE QUEEN v. WOOD.
(Court of Queen's Bench, 1855. 5 El. & Bl. 49.)
Phipson, on an earlier day in this term, obtained a rule nisi for
a certiorari to remove the conviction of Mary Wood, after men-
tioned.
It appeared by affidavit that the Local Board of Health of Burslem,
Staffordshire, established under the Public Health Act, 1848 (11 &
12 Vict. c. 63.), passed a by-law in the words following: "All oc-
cupiers of any premises within the district shall properly cleanse and
remove all snow, or other obstructions, from the footpath and chan-
nel opposite their respective premises, before nine of the clock in
the forenoon of each day.”
Mary Wood, widow, the occupier of a mansion house and grounds
surrounding the same, within the Burslem district, was summoned
on the information of Thomas Povey, inspector of nuisances to the
board, for breach of this by-law. On the return of the summons,
her attorney admitted the breach of the by-law, by Mrs. Wood hav-
ing neglected to clear some snow from the footpath and channel op-
posite to her house. No other obstruction was complained of. Mrs.
Wood's attorney contended that the by-law was illegal. The magis-
trate, Thomas Bailey Rose, Esq., declined entering into this question,
stating that, as the by-law had been allowed, it was his duty to carry
it into effect; and he accordingly convicted Mrs. Wood.
Lord CAMPBELL, C. J.3 If the justice had heard the argument
against the validity of the by-law, a difficulty might perhaps have
arisen. But he did not do so; he held himself bound to act upon
the by-law whether or not it was ultra vires of the Local Board to
that a ship which the Board of Trade have reason to believe to be unsafe
may be detained, and after such investigation or inquiry as by the section
is binding on the owner, either released or finally detained. The first part
of the section in my opinion sums up, though not very accurately, the sub-
sequent detailed provisions of the section. But though as a matter of pub-
lic policy it was thought right that a power should be given to the Board of
Trade to detain provisionally ships reasonably believed by the board to be
unsafe, it was obvious that this might produce great hardship to owners of
some vessels, and the tenth section gives in certain cases to owners of vessels
which have been detained, and which in fact are not unsafe, compensation
by way of damages for their detention, this compensation being payable,
not by the officers of the board, but by the state out of the public purse."
The relevant portions of the act read as follows:
“6. Where a British ship, being in any port of the United Kingdom, is by
reason of the defective condition of her hull, equipments, or machinery, or by
reason of overloading or improper loading, unfit to proceed to sea without
serious danger to human life, having regard to the nature of the service for
which she is intended, any such ship (hereinafter referred to as 'unsafe") may
be provisionally detained for the purpose of being surveyed and either finally
detained or released as follows: (1) The Board of Trade, if they have reason
to believe, on complaint or otherwise, that a British ship is unsafe, may pro-
visionally order the detention of the ship for the purpose of being surveyed.”
3 Only a portion of the opinion of Lord Campbell, C. J., is printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
535
**
make such a by-law, inasmuch as it had been allowed under section
115. We think that, if the Local Board exceeded their powers in
inaking the by-law, the justice exceeded his power in convicting,
and that a certiorari may go, it being open to us to inquire as to the
validity of the by-law. It would be monstrous to say that the al-
lowance by the Secretary of State precludes such an inquiry.. No
power is given to him to legislate; he can only confer authority on
a by-law made conformably to the statute.
· ERLE, J. It is clear that, though the certiorari is taken away,
there is an exception in the case where there is no jurisdiction. The
question, therefore, is whether the by-law is good. Have the board,
under section 55, any authority to remove all snow ? According
to my opinion, they have not. Their power, as has been clearly
pointed out by my Lord, is confined to things in the nature of manure.
As to the general argument from expediency, it would, in my opin-
ion, have been expedient to give a general power to remove snow:
but it is not done. With respect to the jurisdiction of the magis-
trate, the case of Regina v. Bolton, 1 Q. B. 66, lays down the proper
test. If the magistrate had no power to enter into the inquiry, we
can correct what has been done. But, had the by-law been confined
to "filth," and the magistrate had decided that snow was filth, we
must, I think, have held the conviction good."
4
MILLER v. HORTON et al.
(Supreme Judicial Court of Massachusetts, 1891. 152 Mass. 540, 26 N. E.
100, 10 L. R. A. 116, 23 Am. St. Rep. 850.)
Exceptions from superior court, Bristol county.
HOLMES, J. This is an action of tort for killing the plaintiff's
horse. The defendants admit the killing, but justify as members of
the board of health of the town of Rehoboth, under an order ad-
dressed to the board and signed by two of the three commissioners of
contagious diseases among domestic animals, appointed under St.
1885, c. 378, and acting under the alleged authority of St. 1887, c.
252, § 13. This order declared that it was adjudged that the horse
had the glanders, and that it was condemned, and directed the defend-
ants to cause it to be killed. The judge before whom the case was
tried found that the horse had not the glanders, but declined to rule
that the defendants had failed to make out their justification, and
found for the defendants. The plaintiff excepted.
4 The section gives power to make by-laws for the removal of "all dust,
ashes, rubbishi, filth, manure, dung, and soil."
5 As to this last point, see Brittain . Kinnaird, 1 Br. & B. 432 (1819);
Mould v. Williams, 5 Q. B. 469 (1844); Calder v. Halket, 3 Moore P. C. 28
(1839). See, also, Queen v. Rose, 24 L. J. Mag. Cas. 130 (1855).
+
536
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
The language of the material part of section 13 of the act of 1887
is: "In all cases of farcy or glanders the commissioners, having
condemned the animal infected therewith, shall cause such animal to
be killed without an appraisal, but may pay the owner, or any other
person, an equitable sum for the killing and burial thereof." Taken
literally, these words only give the commissioners jurisdiction and
power to condemn a horse that really has the glanders. The question
is whether they go further by implication, so that, if a horse which has
not the disease is condemned by the commissioners, their order will
protect the man who kills it, in a subsequent suit by the owner for
compensation.
The main ground for reading into the statute an intent to make
the commissioners' order an absolute protection is that there is no
provision for compensation to the owner in this class of cases, and,
therefore, unless the order is a protection, those who carry it out will
do so at their peril. Such a construction, when once known, would
be apt to destroy the efficiency of the clause, as few people could be
found to carry out orders on these terms.
On the other hand, this same absence of any provision for com-
pensation to the owner, even if not plainly founded on the assumption
that only a worthless animal, and a nuisance, is in question, still would
be an equally strong argument for keeping to the literal and nar-
rower interpretation. If the Legislature had had in mind the possible
destruction of healthy horses, there was no reason in the world why it
should not have provided for paying the owners. The twelfth section
does provide for paying them in all cases where they are not in fault,
unless this is an exception. When, as here, the horse not only is not
to be paid for, but may be condemned, without appeal, and killed, with-
out giving the owner a hearing, or even notice, the grounds are
very strong for believing that the statute means no more than it says,
and is intended to authorize the killing of actually infected horses
only. If the commissioners had felt any doubt, they could have had
the horse appraised under section 12. Whether an action would have
lain in that case, we need not decide.
The reasons for this construction seem decisive to a majority of the
court when they consider the grave questions which would arise as
to the constitutionality of the clause, if it were construed the other
way.
The thirteenth section of the act of 1887, by implication, declares
horses with the glanders to be nuisances, and we assume in favor of
the defendant that it may do so constitutionally, and may authorize
them to be killed without compensation to the owners. But the statute
does not declare all horses to be nuisances, and the question is wheth-
er,
if the owner of the horse denies that his horse falls within the class
declared to be so, the Legislature can make the ex parte decision of a
board like this conclusive upon him. That question is answered by
the decision in Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 381. It
1
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
537
is decided there that the owner has a right to be heard, and, further,
that only a trial by jury satisfies the provision of article 12 of the
Declaration of Rights, that no subject shall be deprived of his
property but by the judgment of his peers, or the law of the land.
In Belcher v. Farrar, 8 Allen, 325, 328, it was said that "it would
violate one of the fundamental principles of justice to deprive a
party absolutely of the free use and enjoyment of his estate under an
allegation that the purpose to which it was appropriated, or the mode
of its occupation, was injurious to the health and comfort of others,
and created a nuisance, without giving the owner an opportunity to
appear and disprove the allegation, and protect his property from the
restraint to which it was proposed to subject it.” See, also, Sawyer
v. Board, 125 Mass. 182; Winthrop v. Farrar, 11 Allen, 398.
Of course there cannot be a trial by jury before killing an animal
supposed to have a contagious disease, and we assume that the Legis-
lature may authorize its destruction in such emergencies without a
hearing beforehand. But it does not follow that it can throw the
loss on the owner without a hearing. If he cannot be heard before-
hand he may be heard afterwards. The statute may provide for pay-
ing him in case it should appear that his property was not what the
Legislature has declared to be a nuisance, and may give him his hear-
ing in that way. If it does not do so, the statute may leave those who
act under it to proceed at their peril, and the owner gets his hearing
in an action against them.
: An illustration, although not strictly an instance of the former
mode, may be found in the statute authorizing firemen or engineers
of fire departments to order houses to be pulled down in order to pre-
vent the spreading of a fire, and making the town answerable to the
house owner except in certain cases in which the house is practically
worthless because it would have burned if it had not been destroyed.
Pub. St. C. 35, $$ 3–5. No doubt the order would be conclusive
in its legislative capacity or "so far as the res is concerned," as is
said in Salem v. Railroad Co., 98 Mass. 431, 449, 96 Am. Dec. 650;
that is to say, that the house should be pulled down. But the owner
is preserved his right to a hearing in a subsequent proceeding for
compensation. On the other hand, a case where a party proceeds at
his peril is when he pulls down a house for the same object without
the authority of statute. It is said that if the destruction is nec-
essary, he is not liable. But by the common law as understood in this
commonwealth, "if there be no necessity, then the individual who did
the act shall be responsible." Shaw, C. J., in Taylor v. Plymouth,
8 Metc. 462, 465; Philadelphia v. Scott, 81 Pa. 80, 87, 22 Am. Rep.
1738. See Mitchell v. Harmony, 13 How. 115, 134, 135, 14 L. Ed.
75. This means that the determination of the individual is subject to
revision by a jury in an action, and is not conclusive on the owner of
the house.
538
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
So in Blair v. Forehand, 100 Mass. 136, 97 Am. Dec. 82, 1 Am.
Rep. 94, where it was held that a statute constitutionally might au-
thorize the killing of unlicensed dogs as nuisances, it was assumed
that the question whether the particular dog killed was unlicensed was
open in an action against the officer who killed it, and that if he killed
a licensed dog he would be liable in tort; in other words, that he
proceeded in that respect at his own risk. Page 143, of 100 Mass.
(99 Am. Dec. 82, 1 Am. Rep. 94), citing Shaw, C. J., in Tower v.
Tower, 18 Pick. 262. It could have made no difference in that case if
a board of three had been required to decide ex parte beforehand
whether the dog was licensed.
In Salem v. Railroad Co., 98 Mass. 431, 96 Am. Dec. 650, it was
decided, in agreement with the views which we have expressed, that
the decision of a board of health that a nuisance existed on certain
premises, and the order of the board that it be removed at the ex-
pense of the owner, were not conclusive upon the owner in a sub-
sequent action against him to recover the expense, he having had no
notice or opportunity to be heard. The general rule is that a judg-
ment in rem, even when rendered by a regularly constituted court,
after the fullest and most formal trial, is not conclusive of the facts
on which it proceeds against persons not entitled to be heard and not
heard in fact, although it does change or establish the status it deals
with as against all the world from the necessities of the case, and
frequently by express legislation. Brigham v. Fayerweather, 140
Mass. 411, 413, 5 N. E. 265.
It is true that it is said in Salem v. Railroad Co. that the board's
determination of questions of discretion and judgment in the dis-
charge of their duties would protect all those employed to carry such
determinations into effect. The remark is obiter, and it is doubtful
perhaps on reading the whole case whether it means that the determi-
nation would protect them in an action for damages when the statute
provided no compensation for property taken which is not a nuisance.
To give it such an effect as a judgment merely, would be inconsistent
with the point decided, and with Brigham v. Fayerweather. We are
not prepared to admit that a condemnation by the present board
under section 13 could be made conclusive of the fact that the plain-
tiff's horse had the glanders, in the present action. See, further, Hol-
comb v. Moore, 4 Allen, 529; Foley v. Haverhill, 144 Mass. 352,
354, 11 N. E. 554.
But we are led by the dictum in Salem v. Railroad Co. to consider
another possible suggestion. It may be said, suppose that the decision
of the board is not conclusive that the plaintiff's horse had the
glanders, still the Legislature may consider that self-protection re-
quires the immediate killing of all horses which a competent board
deem infected, whether they are so or not, and, if so, the innocent
horses that are killed are a sacrifice to necessary self-protection,
and need not be paid for.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
539
In Train v. Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59
Am. Rep. 113, it was held that all imported rags might be required to
be put through a disinfecting process at the expense of the owner. Of
course, the order did not mean that the Legislature or board of health
declared all imported rags to be infected, but simply that the danger
was too great to risk an attempt at discrimination. If the Legisla-
ture could throw the burden on owners of innocent rags in that case,
why could it not throw the burden on the owners of innocent horses
in this? If it could order all rags to be disinfected, why inight it
not have ordered such rags to be disinfected as a board of three
should determine sunımarily, and without notice or appeal? The
latter provision would have been more favorable to owners, as they
would have had a chance at least of escaping the burden, and it
would stand on the same ground as the severer law.
The answer, or a part of it, is this: Whether the motives of the
Legislature are the same or not in the two cases supposed, it declares
different things to be dangerous and nuisances unless disinfected.
In the one, it declares all imported rags to be so; in the other, only
all infected rags. Within limits, it may thus enlarge or diminish
the number of things to be deemed nuisances by the law, and courts
cannot inquire why it includes certain property, and whether the
motive was to avoid an investigation. But wherever it draws the
line, an owner has a right to a hearing on the question whether his
property falls within it, and this right is not destroyed by the fact
that the line might have been drawn so differently as unquestionably
to include that property. Thus, in the first case, the owner has a right
to try the question whether his rags were imported; in the second,
whether they were infected. His right is no more met in the second
case by the fact that the Legislature inight have made the inquiry
immaterial by requiring all imported rags to be disinfected, than it
would be in the first by the suggestion that possibly the Legislature
might require all rags to be put through the same process whether
imported or not. But if the property is admitted to fall within the
line, there is nothing to try, if the line drawn is a valid one under
the police power. All that Train v. Disinfecting Co. decided was
that the line there considered was a valid one.
Still it may be said, if self-protection required the act, why should
not the owner bear the loss? It may be answered that self-protection
does not require all that is believed to be necessary to that end, nor
even all that is reasonably believed to be necessary to that end.
It only requires what is actually necessary. It would seem doubtful
at least whether actual necessity ought not to be the limitation when
the question arises under the constitution between the public and an
individual. Such seems to be the law as between private parties in
this commonwealth in the case of fires, as we have seen. It could not
be assumed as a general principle without discussion that even ne-
cessity would exonerate a party from civil liability for a loss inflicted
540
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
knowingly upon an innocent person who neither by his person nor
his property threatens any harm to the defendant. It has been
thought by great lawyers that a man cannot shift his misfortunes
upon his neighbor's shoulders in that way when it is a question of
damages, although his act may be one for which he would not be
punished. Gilbert v. Stone, Aleyn, 35, Style, 72; Scott v. Shepherd,
2 W. Bl. 892, 896. Upon this we express no opinion. It is enough
to say that in this case actual necessity only required the destruc-
tion of infected horses, and that was all that the Legislature pur-
ported to authorize.
Again, there is a pretty important difference of degree, at least
(Rideout v. Knox, 148 Mass. 368, 372, 19 N. E. 390, 2 L. R. A. 81,
12 Am. St. Rep. 560), between regulating the precautions to be taken
in keeping property, especially property sought to be brought into
the state, and ordering its destruction. We cannot admit that the
Legislature has an unlimited right to destroy property without com-
pensation, on the ground that destruction is not an appropriation to
public use within article 10 of the declaration of rights. When a
healthy horse is killed liy a public officer, acting under a general stat-
ute, for fear that it should spread disease, the horse certainly would
seem to be taken for public use as truly as if it were seized to drag
an artillery wagon. The public equally appropriates it, whatever
they do with it afterwards. Certainly the Legislature could not de-
clare all cattle to be nuisances, and order them to be killed without
compensation. Watertown v. Mayo, 109 Mass. 315, 319, 12 Am. Rep.
694; In re Jacobs, 98 N. Y. 98, 109. It does not attempt to do so.
As we have said, it only declares certain diseased animals to be nui-
sances. And even if we assume that it could authorize some trifling
amount of innocent property to be destroyed as a necessary means to
the abatement of a nuisance, still, if in this section 13 it had added in
terms that such healthy anjinals as should be killed by mistake for
diseased ones should not be paid for, we should deem it a serious
question whether such a provision could be upheld. See, further,
Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203; Hale v.
Lawrence, 21 N. J. Law, 714, 47 Am. Dec. 190; Grant v. U. S., 1
Ct. Cl. 41; Wiggins v. U. S., 3 Ct. Cl. 412; Mitchell v. Harmony, 13
How. 115, 134, 14 L. Ed. 75.
For these reasons, the literal, and, as we think, the true, construc-
tion of section 13 seems to us the only safe one to adopt, and ac-
cordingly we are of opinion that the autliority and jurisdiction of the
commissioners to condemn the plaintiff's horse under section 13 was
conditional upon its actually having the glanders. If this be so,
their order would not protect the defendants in a case where the
commissioners acted outside their jurisdiction. Fisher v. McGirr,
1 Gray, 1, 45, 61 Am. Dec. 381. The fact as to the horse having the
disease was open to investigation in the present action, and, on
Ch.9)
541
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
the finding that it did not have it, the plaintiff was entitled to a ruling
that the defendants had failed to make out their justification.
In view of our conclusion upon the main question, we have not
considered whether an order signed by two members of the board,
upon an examination by one, satisfies the statute, or whether cases
like Ruggles v. Nantucket, 11 Cush, 433, and Parsons v. Pettingill, 11
Allen, 507, apply.
Exceptions sustained.
DEVENS, J. (dissenting). I ain unable to concur in the opinion of
the majority of the court in the narrow and limited construction
which they give to section 13 of chapter 252 of Acts of 1887, or
in the view expressed of its constitutionality if otherwise construed.
ok
From the nature of the case, where, as under Gen. St. c. 26, the
res is an alleged "nuisance, source of filth, cause of sickness," as an
embankment by which running waters are stopped and filth accu-
mulated, or like infected clothes from persons diseased, or rotting
and putrescent meats on shipboard or in warehouses, or animals
afflicted with contagious diseases, and many other noxious objects,
action by boards of health must be prompt and summary. Powers to
determine whether these objects should be removed or destroyed
are undoubtedly very high powers, but they inust, of necessity, be
confided to boards of administration in order that the public safety
may be guarded. Although of a quasi judicial nature, they must be
exercised often without the delays which necessarily attend for-
mal notices and formal trials; and where adjudications are fairly and
honestly made, even if mistakes may sometimes occur, they should
be held conclusive, so far as the res with which they deal is concerned.
Certainly no one would voluntarily undertake the heavy responsibili-
ties of a board of health, or, as in the case at bar, of cattle commis-
sioners, if they were to be made responsible in damages for errors
of judgment which they might commit.
Applying these principles to the case at bar, they are decisive. The
Legislature has decided that a horse infected with glanders is so
dangerous to the public health, whether of other valuable domestic
animals or of man, that it should be destroyed on account of its
dangerous character, and should cease to be entitled to the usual
protection of property. It is not an objection to this law that it has
failed to provide compensation to the owner, as the animal is itself in
its view a nuisance of serious danger to the community. It has em-
powered a respectable tribunal with powers similar to those of a board
of health to determine whether an aninial is of the class described
in the statute. The exigency of the case does not permit, at least in
the opinion of the Legislature, of notice, appeal, or other modes of re-
viewing the decision of such a tribunal. This appears to me a law-
*
6 Only a portion of the opinion of Devens, J., is printed.
542
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
ful exercise of the police power, and the decision should be held
conclusive in order that the community may be protected, and that
those intrusted with the execution of the law may safely assume the
responsibilities imposed upon them. The court, therefore, in my
opinion, correctly refused to rule that the act of 1887, c. 252, by
which Pub. St. c. 90, was repealed, was unconstitutional.
I am authorized to say that Mr. Justice C. ALLEN and Mr. Justice
KNOWLTON concur in this opinion.?
*
SECTION 69.-SAME-QUESTIONS OF FACT
ALLBUTT v. GENERAL COUNCIL OF MEDICAL EDU-
CATION AND REGISTRATION et al.
(Court of Appeal, 1889.
23 Q. B. Div. 400.)
Appeal by the plaintiff against the judgment of Pollock, B., at
the trial of the action.
The plaintiff, Henry Arthur Allbutt, was a medical practitioner,
who had been registered as such under the provisions of the Medical
Act, 1858 (21 & 22 Vict. c. 90). The defendants were the General
Council of Medical Education and Registration of the United King-
dom (constituted under that act) and W. J. C. Miller, their registrar.s
LOPES, L. J., delivered the judgment of the court (Lord COLERIDGE,
C. J., and LINDLEY and Lopes, L. JJ., sitting) as follows:
7 By chapter 195, § 3, of the Laws of Massachusetts of 1892, the following
words were added to Laws 1887, c. 252, § 3: “And may also pay a reasoni-
able compensation for the animal destroyed, should a post mortem examina-
tion prove that said animal was free from the disease for which it was con-
demned.” See, now, Rey. Laws 1902, C. 90, § 6.
In Com. v. Sisson, 189 Mass. 247, 75 N. E. 619, 1 L. R. A. (N. S.) 752, 109
Am. St. Rep. 630 (1905), the court said: “The difference bet seen the majority
and the minority of the court in Miller y. Horton was on the construction of
the act there in question."
“Boards of health, under the acts referred to (Laws N. Y. 1885, C. 270),
cannot as to any existing state of facts, by their determination make that
a nuisance which is not in fact a nuisance. They have no jurisdiction to
make any order or ordinance abating an alleged nuisance, unless there be
in fact a nuisance. It is the actual existence of a nuisance which gives
them jurisdiction to act." People ex rel. Copcutt v. Board of Health of
Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 552
(1893), ante, p. 139.
See, also, Underwood v. Green, 42 N. Y. 140 (1870); Lowe v. Conroy,
120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983 (1904),
ante, p. 306; In re Smith, 146 N. Y. 68, 40 N. E. 497, 28 L. R. A. 820, 48
Am. St. Rep. 769 (1895).
8 Only a portion of this case is printed.
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
543
The plaintiff complains that the defendants (the General Council
of Medical Education and Registration of the United Kingdom) have
wrongfully and unlawfully erased his name from the medical register,
and asks for a inandamus commanding the defendants to restore his
name to the register. The plaintiff also complains that the defend-
ants have libeled him, by printing and publishing of him in a book, en-
titled Minutes of the General Council, that his name had been erased
from the Medical Registry, page 317, and that in the opinion of the
council the plaintiff had committed the offense charged against him--
that is to say, of having published and publicly caused to be sold a
work entitled “The Wife's Handbook," in London and elsewhere,
and at so low a price as to bring the work within the reach of both
sexes, to the detriment of public morals, and that the offense was,
in the opinion of the council, infamous conduct in a professional
respect. With regard to the erasure of the plaintiff's nanie, the plain-
tiff says that the defendants acted without jurisdiction, that there
was no evidence of any infamous conduct in a professional respect,
and, therefore, nothing upon which to found their jurisdiction. The
defendants say, on the other hand, that they lawfully, and in the
exercise of a jurisdiction conferred upon them by the act of Parlia-
ment, struck the plaintiff's name off the register, and that, as there
was jurisdiction to enter upon this inquiry, they (the Medical Coun-
cil) are the sole judges of what was done during the inquiry which
they had jurisdiction to initiate. The learned judge thought that
there was no evidence of any of the complaints which he ought to
leave to the jury, and gave judgment for the defendants.
The section upon which the council have acted in erasing the plain-
tiff's name is the twenty-ninth section of 21 & 22 Vict. c. 90, which
says: "If any registered medical practitioner shall be convicted in
England or Ireland of any felony or misdemeanor, or in Scotland
of any crime or offense, or shall after due inquiry be judged by the
general council to have been guilty of infamous conduct in any pro-
fessional respect, the general council may, if they see fit, direct the
registrar to erase the name of such medical practitioner from the
register.” Having regard to the nature of the complaint, the council
clearly had jurisdiction to enter upon the inquiry, and, having that
jurisdiction, are constituted by the legislature the sole judges whether
that complaint was substantiated. To use the words of Cockburn, C.
J., in Ex parte La Mert, 33 L. J. (Q. B.) 70: "This court has no
more power to review their decision than they would have, in the
present mode of proceeding, of determining whether the facts had
justified a conviction for felony or misdemeanor under the first
branch of the section."
It is said by the plaintiff that there was no "due inquiry,” and that
that question onght to have been left to the jury. We think that
there was no evidence of any absence of a due inquiry which ought
to have been left to the jury. All charges of mala fides were with-
544
RELIEF AGAINST ADMINISTRATIVE ACTION.
(Part 2
drawn, and it was admitted that the council acted honestly, and with-
out any improper feeling or motive towards the plaintiff. We can
find nothing irregular in the proceedings of the council; the plain-
tiff had every opportunity afforded to him of bringing his case
before the council, who heard his counsel and his evidence, and ad-
judicated thereon.
*
* 9
FIRE DEPARTMENT OF CITY OF NEW YORK v. GILMOUR.
(Court of Appeals of New York, 1896. 149 N. Y. 453, 44 N. E. 177, 52 Am.
St. Rep. 748.)
Appeal from Common Pleas of New York City and County, Gen-
eral Term.
Action by the Fire Department of the City of New York against
John Gilmour to recover penalty imposed for refusal to obey an
order of the board of fire commissioners. There was judgment for
plaintiff, which was reversed by the General Term (4 Misc. Rep.
202, 23 N. Y. Supp. 1022), and from the order of reversal plaintiff
appeals. Affirmed.
This action was brought in a district court in the city of New York,
to recover of the defendant a penalty of $25 for neglect on his part
to obey an order dated May 21, 1892, purporting to have been made
under the authority of the board of commissioners of the fire depart-
ment of.the city of New York, requiring him, within five days from
the service of the order, to build a wall of stone, brick, or other fire-
proof material, not more than 18 feet in height, around the yard of
premises 87 White street, in the city of New York, in rear of the
building thereon, and prohibiting him from storing in the yard boxes
of wood to a height above a point 12 inches below the top of the
wall. The defendant occupied the building and yard 87 White street,
using the yard (a space about 60 by 35 feet) for the storing of pack-
ing boxes manufactured by him at another place, and had so used the
yard for a period of about 14 years. The boxes were piled at times
as high as 20 to 30 feet.
The order contains a recital that the packing boxes so stored were
combustible, and were kept and stored in such quantity as to be
dangerous, "and the same is considered dangerous in causing and
promoting fires, and prejudicial to the safety of life and property,
and in its present condition a violation of law.” The order refers
to chapter 410 of the Laws of 1882 (Consolidation Act) as the basis
of the order. By section 463 of that act, the board of fire commis-
sioners, and its officers and agents under their direction, or the di-
rection of either of the commissioners, are empowered to "enter any
9 See, also, Bogle v. Sherborne Local Board, 46 Justice of Peace, 677
(1880); Attorney General v. Great Western Ry. Co., 4 Ch. D. 735 (1876).
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
545
building or premises where any merchandise, gunpowder, firewood,
boards, shingles, shavings," etc., or other combustible materials may
be lodged, and upon finding that any of them are defective or dan-
gerous, or that a violation of this title exists therein, may deliver a
written or printed notice containing an extract from this title of the
provisions in reference thereto, and notice of any violation thereof,
and notice to remove, amend or secure the same within a period to
be fixed therein." The section proceeds to declare that, in case of
neglect or refusal on the part of the occupant or of the possessor
of such combustible materials "so to remove or amend or secure the
same within the time and in the manner directed by the said com-
missioners in such notice, the party offending shall forfeit and pay,
in addition to any penalty otherwise imposed, the sum of twenty-
five dollars, and the further sum of five dollars for each day's neglect,"
etc. Attached to the notice and order served on the defendant was
a copy of section 463, and also of section 467 of the act.
The surveyor of combustibles was the only witness sworn on the
trial. He testified that he made an inspection of 87 White street,
and was directed, before going there, to report against the place
"if they did not have a proper wall around it, and a large number of
boxes were stored there." He made the report, and the order was
thereupon issued. The defendant sought to show by the witness
facts bearing upon the condition of the premises, their surround-
ings, and the absence of danger or conflagration from the boxes piled
in the yard. Most of the questions put to the witness bearing upon
the question of the propriety or reasonableness of the order were
excluded by the justice, on the ground that the court could not con-
sider the matter. The defendant, on the conclusion of the plain-
tiff's case, offered to prove by two witnesses a variety of facts which
were enumerated, bearing upon the question of the reasonableness
of the order, and to show that the use made by him of the premises
did not involve any danger of fire beyond the ordinary danger attend-
ing the ordinary uses of property. The justice refused to hear the
evidence, saying "the question before the court is, has there been
a refusal to comply with the order of the board? The court regrets
that it cannot go into the question whether the order was necessary,
or whether the department acted properly." The court rendered
judgment for the plaintiff for the penalty given by statute, which was
reversed on appeal to the General Term of the New York Common
Pleas, and from the order of reversal the plaintiff brings this appeal.
ANDREWS, C. J. (after stating the facts).10 The action was tried and
determined by the justice of the district court upon the theory that
the determination of the board of fire commissioners that the use
made by the defendant of the yard of his premises for the piling
10 Only a portion of the opinion of Andrews, C. J., is printed.
FR.ADM. LAW-35
546
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
of boxes was dangerous, as being likely to cause or promote a con-
flagration, to the prejudice of life and property, was conclusive,
and not open to inquiry in an action brought for the penalty, given
by section 463 of the consolidation act. It was upon this view of
the law that the justice excluded the evidence offered by the defend-
ant to show that, in fact, the use made by him of the yard did not
involve any unusual risk of fire, either from the inherent nature of
the property stored therein, or in promoting a conflagration originat-
ing on adjacent premises. This, the justice declared, he could not
consider, but was confined to the simple inquiry whether the order
of the board of commissioners had been disobeyed.
We think the justice erred in the principle upon which he proceed-
ed. There can be no doubt of the power of the Legislature to enact
regulations for the protection of cities or villages against the serious
dangers from conflagrations. It is one of the subjects to which
the police power of the state extends, and there is no one in the wide
range of this power upon which the Legislature has more frequently
acted. It may directly enact a code of regulations applicable to ex-
posed localities, or, as is more commonly done, it may invest munici-
palities with the power to pass ordinances regulating the subject.
The authority given in most charters of municipalities to the legis-
lative body to fix fire limits, to prohibit the erection of buildings there-
in of wood or other combustible materials, the storing of gunpowder
or other explosive compounds in quantities and under circumstances
hazardous to life and property, are among the familiar instances of
the delegated power, Regulations on this subject are restrictions of
personal freedom and the free use of property. But they are jus-
tified by public necessity, and so are within the acknowledged power
of the Legislature.
The Legislature, by section 463 of the consolidation act, conferred
upon a subordinate department of the city government the power
to determine in specific cases whether the use of property for storage
of combustible materials by the owner or occupant was a inenace to
the public safety, and, upon the determination of the board of com-
missioners that such use was dangerous, authorized an order to be
made by the board for the discontinuance of such use or the regula-
tion thereof, upon disobedience to which the owner or occupant is sub-
jected to a penalty. It is manifest that if an irreviewable discre-
tion is thereby lodged in the board, and the citizen is precluded in
a suit for the penalty from contesting the reasonableness of an or-
der made, the board is vested with a power of the inost arbitrary
description, liable to great abuse-a power which, though in terms
vested in the board of commissioners, is, sometimes at least, as the
evidence in this case shows, in fact wielded by the subordinate ap-
pointees in the name of the department. It would have been com-
petent for the Legislature to have enacted' a general regulation pro-
hibiting the piling of boxes or masses of combustible material in
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
547
yards or open spaces in the populous and defined districts within a
city, and such an enactment every citizen would be bound to obey;
and, where sued for a penalty, it would be no defense to a party who
had violated the law to show that in his particular case, owing to
exceptional circumstances, the regulation was unnecessary or unrea-
sonable.
The will of the Legislature would stand as the reason for the rule,
and, being general, no one, however situated, could escape its obli-
gation, unless, indeed, he could establish that, passing beyond the
police power, it involved some right of person or property protected
by the Constitution. In other words, where the Legislature, in the
exercise of the police power, enacts a regulation defining the duty of
citizens, either in respect to their personal conduct or the use of their
property, the reasonableness of the thing enjoined or prohibited' is
not an open question, because the supreme legislative power has de-
termined it by enacting the rule. See Dill. Mun. Corp. § 328, and
cases cited. But where the Legislature, as in the present case, enacts
110 general rule of conduct, but invests a subordinate board with the
power to investigate and determine the fact whether, in any special
case, any use is made of property for purposes of storage, dangerous
on account of its liability to originate or extend a conflagration, not
prescribing the uses which it permits or disallows, then we are of
opinion that in such cases the reasonableness of the determination
of the board, or of the order prohibiting a particular use in accord-
ance with such determination, is open to contestation by the party
affected thereby, and that he is entitled when sued for a disobedience
of the order, to show that it was unreasonable, unnecessary, and op-
pressive.
It was not necessary in this case that the defend-
ant should have been notified (as he was not) of the investigation made
of his premises by the appointees of the fire commissioners, or that
he should have been afforded an opportunity to be heard before the
order was made. Health Department of City of New York v. Rector,
etc., of Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A.
710, 45 Am. St. Rep. 579. But we think he was entitled to contest,
in the action for the penalty, the reasonableness of the order made
and the facts upon which it proceeded. People v. Board of Health
of City of Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37
Am. St. Rep. 522; Health Department of City of New York v. Rec-
tor, etc., of Trinity Church, supra; City of Salem v. Eastern R. Co.,
98 Mass. 431, 96 Am. Dec. 650.
For the denial of this right, we think the judgment should be
affirmed.
All concur.
Judgment affirmed.11
A
*
*
11 See, also, Chatfield v. New Haven (C. C.) 110 Ted. 788 (1901).
“Whether or not the Secretary of the Treasury failed to carry into ef-
fect the expressed purpose of Congress, and established standards which
operated to exclude teas which would have been entitled to admission had
548
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 70.-MILITARY POWER
MARTIN y. MOTT.
(Supreme Court of United States, 1827.
12 Wheat. 19, 6 L. Ed. 537.)
Error to the Court for the Trial of Impeachments and Correc-
tion of Errors of the State of New York.
Mr. Justice STORY delivered the opinion of the court.12
This is a writ of error to the judgment of the Court for the Trial
of Impeachments and the Correction of Errors of the State of New
York, being the highest court of that state, and is brought here in
virtue of the twenty-fifth section of the judiciary act of 1789, c. 20.
The original action was a replevin for certain goods and cliattels,
to which the original defendant put in an avowry, and to that avow-
ry there was a demurrer, assigning nineteen distinct and special causes
of demurrer. Upon a joinder in demurrer, the Supreme Court of
the state gave judgment against the avowant; and that judgment
was affirmed by the high court to which the present writ of error is
addressed.
The avowry, in substance, asserts a justification of the taking of
thie goods and chattels to satisfy a fine and forfeiture imposed upon
the original plaintiff by a court-martial, for a failure to enter the
service of the United States as a militiaman, when thereto required
proper standards been adopted, is a question we are not called upon to con-
sider. The sufficiency of the standards adopted by the Secretary of the
Treasury was committed to his judgment, to be honestly exercised, and if
that were important there is no assertion here of bad faith or malice on
the part of that officer in fixing the standards, or on the part of the de-
fendant in the performance of the duties resting on him." Buttfield V.
Stranaban, 192 U. S. 470, 496, 497, 24 Sup. Ct. 349, 355, 48 L. Ed. 525 (1904).
Other cases in this collection illustrating the appeal to the courts against
administrative action in the matter of public health and safety or order:
Lowe v. Conroy, 120 Wis. 151, 97 N. V. 942, 66 L. R. A. 907, 102 Am. St.
Rep. 983 (1904); Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3 (1883);
Craig v. Charleston, 180 Ill. 154, 54 N. E. 184 (1899); Chicago v. Chie.
City R. Co., 222 Ill. 560, 78 N. E. 890 (1906); Dobbins v. Los Angeles, 195
U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169 (1904); Meeker v. Van Rensselaer,
15 Wend. (N. Y.) 397 (1836); Waye y. Thompson, L. R. 15 Q. B. D. 342
(1885); Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203 (1876);
Metropolitan Board of Health v. Heister, 37 N. Y. 661 (1868); People v.
Board of Health of Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37
Am. St. Rep. 522 (1893); Hartman v. Wilmington, 1 Marvel (Del.) 215,
41 Atl. 74 (1894); Health Dept. v. Trinity Church, 145 N. Y. 32, 39 N. E.
833, 27 L. R. A. 710, 45 Am. St. Rep. 579 (1895); Salem v. Eastern R. Co.,
1
12 Only a portion of the opinion of Story, J., is printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
549
by the President of the United States, in pursuance of the act of
the 28th of February, 1795, c. 101. It is argued that this avowry
is defective, both in substance and form; and it will be our busi-
ness to discuss the most material of these objections; and as to
others, of which no particular notice is taken, it is to be understood
that the court are of opinion that they are either unfounded in fact
or in law, and do not require any separate examination.
For the niore clear and exact consideration of the subject, it may
be necessary to refer to the Constitution of the United States, and
some of the provisions of the act of 1795. The Constitution declares
that Congress shall have power "to provide for calling forth the
militia, to execute the laws of the Union, suppress insurrections, and
repel invasions," and also "to provide for organizing, arming, and
disciplining the militia, and for governing such part of them as
may be employed in the service of the United States.” In pursuance
of this authority, the act of 1795 has provided "that whenever the
United States shall be invaded, or be in imminent danger of invasion
from any foreign nation or Indian tribe, it shall be lawful for the
President of the United States to call forth such number of the mili-
tia of the state or states most convenient to the place of danger,
or scene of action, as lie may judge necessary to repel such invasion,
and to issue his order for that purpose to such officer or officers of
the militia as he shall think proper." And like provisions are made
for the other cases stated in the Constitution. It has not been de-
nied here that the act of 1795 is within the constitutional authority
of Congress, or that Congress may not lawfully provide for cases
of imminent danger of invasion, as well as for cases where an inva-
98 Mass. 431, 96 Am. Dec. 650 (1868); Reynolds v. Schultz, 27 N. Y. Super.
282 (1867); King v. Davenport, 99 Ill. 305, 38 Am. Rep. 89 (1881); North
American Cold Storage Co. v. Chicago, 211 U. S. 306, 29 Sup. Ct. 101, 53 L.
Ed. 195 (1908); Wilcox v. Heming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep.
625 (1883); Queen v. Wood, 5 El. & Bl. 49 (1855).
Other cases illustrating the appeal to the courts against administrative
action in the matter of refusal or revocation of licenses: Bassett v. Gods-
chall, 3 Wilson, 121 (1770); Downer v. Lent, 6 Cal. 91, 65 Am. Dec. 489
(1856); Dolan's Appeal, 108 Pa. 564 (1885); Thompson v. Koch, 98 Ky.
400, 33 S. W. 96 (1895); Hopson's Appeal, 65 Conn. 140, 31 Atl. 531 (1894);
State v. District Court, 19 Mont. 501, 48 Pac. 1104 (1897); Gage v. Censors.
63 N. H. 92, 56 Am. Rep. 492 (1884); Com. V. Kinsley, 133 Mass. 578
(1882); Martin v. State, 23 Neb. 371, 36 N. W. 551 (1888); King v. Ven-
ables, 2 Ld. Raym. 1405 (1725); People v. McCoy, 125 Ill. 289, 17 N. E.
786 (1888); People v. Department of Health, 189 N. Y. 187, 82 N. E. 187,
13 L. R. A. (N. S.) 894 (1907); State v. Lamos, 26 Me. 258 (1846); U.
S. V. Douglass, 19 D. C. 99 (1890); Dodd v. Francisco, 68 N. J. Law, 490,
53 Atl. 219 (1902); People v. Board of Commissioners, 59 N. Y. 92 (1874);
Lillienfeld v. Commonwealth, 92 Va. 818, 23 S. E. 882 (1896); Baldwin v.
Smith, 82 Ill. 162 (1876); State y. Justices, 15 Ga. 408 (1854); People v.
State Board Dental Examiners, 110 ill. 180 (1884); Ill. State Board Den-
tal Exam. v. People, 123 Ill. 227, 13 N. E. 201 (1887); State v. Chittenden, 112
Wis. 569, 88 N. W. 587 (1902); In re Sparrow, 138 Pa. 116, 20 Atl. 711 (1890);
Gross' License, 161 Pa. 349, 29 Atl. 25 (1894); Harrison v. People, 222
Ill. 150, 78 N. E. 52 (1906); Devin v. Belt, 70 Md. 352, 17 Atl. 375 (1889).
550
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
sion has actually taken place. In our opinion there is no ground
for a doubt on this point, even if it had been relied on, for the power
to provide for repelling invasions includes the power to provide against
the attempt and danger of invasion, as the necessary and proper
means to effectuate the object. One of the best means to repel in-
vasion is to provide the requisite force for action before the invader
himself has reached the soil.
The power thus confided by Congress to the President is, doubt-
less, of a very high and delicate nature. A free people are naturally
jealous of the exercise of inilitary power; and the power to call
the inilitia into actual service is certainly felt to be one of no ordinary
magnitude. But it is not a power which can be executed without a
correspondent responsibility. It is, in its terms, a limited power,
confined to cases of actual invasion, or of imminent danger of in-
vasion. If it be a limited power, the question arises, by whom is
the exigency to be judged of and decided? Is the President the
sole and exclusive judge whether the exigency has arisen, or is it
to be considered as an open question, upon which every officer to
whom the orders of the President are addressed may decide for him-
self, and equally open to be contested by every militiaman who shall
refuse to obey the orders of the President? We are all of opinion
that the authority to decide whether the exigency has arisen belongs
exclusively to the President, and that his decision is conclusive up-
on all other persons.
We think that this construction necessarily
results from the nature of the power itself, and from the manifest
object contemplated by the act of Congress. The power itself is
to be exercised upon sudden emergencies, upon great occasions of
state, and under circumstances whiclı may be vital to the existence of
the Union. A prompt and unhesitating. obedience to orders is in-
dispensable to the complete attainment of the object. The service
is a military service, and the command of a military nature; and in
such cases every delay, and every obstacle to an efficient and imme-
cliate compliance, necessarily tend to jeopard the public interests.
While subordinate officers or soldiers are pausing to consider whether
they ought to obey, or are scrupulously weighing the evidence of the
facts upon which the commander in chief exercises the right to de-
mand their services, the hostile enterprise may be accomplished with-
out the means of resistance. If "the power of regulating the militia,
and of commanding its services in times of insurrection and invasion,
are (as it has been emphatically said they are) natural incidents to
the duties of superintending the common defense, and of watching
over the internal peace of the confederacy,” these powers must be
so construed as to the modes of their exercise as not to defeat the
great end in view. If a superior officer has a right to contest the
orders of the President upon his own doubts as to the exigency hav-
ing arisen, it must be equally the right of every inferior officer and
Ch.9)
551
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
soldier; and any act done by any person in furtherance of such
orders would subject him to responsibility in a civil suit, in which
his defense must finally rest upon his ability to establish the facts
by competent proofs. Such a
Such a course would be subversive of all
discipline, and expose the best-disposed officers to the chances of
ruinous litigation. Besides, in many instances, the evidence upon
which the President might decide that there is imminent danger of
invasion might be of a nature not constituting strict technical proof,
or the disclosure of the evidence might reveal important secrets of
state, which the public interest, and even safety, might imperiously
demand to be kept in concealment.
If we look at the language of the act of 1795, every conclusion
drawn from the nature of the power itself is strongly fortified. The
word's are, "whenever the United States shall be invaded, or be in
imminerít danger of invasion, etc., it shall be lawful for the Presi-
clent, etc., to call forth such number of the militia, etc., as he may
judge necessary to repel such invasion.” The power itself is con-
fided to the Executive of the Union, to him who is, by the Constitu-
tion, "the commander in chief of the militia, when called into the
actual service of the United States," whose duty it is to “take care
that the laws be faithfully executed," and whose responsibility for
an honest discharge of his official obligations is secured by the highest
sanctions. He is necessarily constituted the judge of the existence
of the exigency in the first instance, and is bound to act according
to his belief of the facts. If he does so act, and decides to call forth
the militia, his orders for this purpose are in strict conformity with
the provisions of the law; and it would seem to follow as a nec-
essary consequence that every act done by a subordinate officer, in
obedience to such orders, is equally justifiable. The law contemplates
that, under such circumstances, orders shall be given to carry the
power into effect; and it cannot therefore be a correct inference
that any other person has a just right to disobey them. The law
does not provide for any appeal from the judgment of the President,
or for any right in subordinate officers to review his decision, and
in effect defeat it. Whenever a statute gives a discretionary power
to any person, to be exercised by him upon his own opinion of cer-
tain facts, it is a sound rule of construction that the statute consti-
tutes him the sole and exclusive judge of the existence of those facts.
And, in the present case, we are all of opinion that such is the
true construction of the act of 1795. It is no answer that such a
power may be abused, for there is no power which is not susceptible
of abuse. The remedy for this, as well as for all other official mis-
conduct, if it should occur, is to be found in the Constitution itself.
In a free government the danger must be remote, since, in addition to
the high qualities which the Executive must be presumed to possess,
of public virtue, and honest devotion to the public interests, the
552
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
frequency of elections, and the watchfulness of the representatives
of the nation, carry with them all the checks which can be useful
to guard against usurpation or wanton tyranny.
*
* 13
13 "The first and second objections to the pleas are wholly untenable. It
is not necessary to allege that a case had occurred which gave authority
to the President of the United States to call forth the militia, under the
act of the 28th of February, 1795. That act, after enumerating the cases,
on the occurrence of which the militia may be called into the public serr-
ice of the United States, vests in the President a high discretionary power.
He, and he alone, is made the judge, as well of the happening of the events
on which the militia may be called forth, as of the number, time and des-
tination of that species of force. In every case in which the President acts
under that law, he acts upon his responsibility under the Constitution. If
it was necessary to the validity of these pleas to state, either that the
United States were invaded, or in imminent danger of invasion, or that the
laws of the United States were opposed, or the execution thereof obstructed,
the matter thus stated would be issuable, and the plaintiff might, in his
replication, take issue on them, and oblige the defendant to prove the oc-
currence of a case specified in the act; and thus every subordinate officer.
who should be called into service, would be put to the necessity, when he
was sued for any act of discipline upon the privates, to prove to a jury that
the President had acted correctly in making his requisitions, and if he
failed in this proof it would subject him to damages for an act otherwise
lawful. To countenance such a construction of the act would be monstrous.
Every trial would either subject all the archives of state to an examina-
tion before the court and jury, or the defendant would inevitably be found
guilty. No man would dare to obey the orders, either of the President, or of
his superior officer, lest, peradventure, the President had either abused his au-
thority, or misjudged in relation to the occurrence of the fact which au-
thorized him to call forth the militia. It is a general and sound principle
that whenever the law vests any person with a power to do an act, and con-
stitutes him a judge of the evidence on which the act may be done, and,
at the same time, conteniplates that the act is to be carried into effect
through the instrumentality of agents, the person thus clothed with power
is invested with discretion, and is, quoad hoc, a judge. His mandates to
his legal agents, on his declaring the event to have happened, will be a
protection to those agents; and it is not their duty or business to investi-
gate the facts thus referred to their superior, and to rejudge his determina-
tion. In a military point of view, the contrary doctrine would be subver-
sive of all discipline; and, as it regards the safety and security of the Unit-
ed States and its citizens, the consequences would be deplorable and fatal.
It was not necessary, therefore, to set forth the occurrence of these events
in the pleas as a justification of the defendant's conduct, because they were
not, and could not, be matter of trial." Vanderheyden y. Young, 11 Johns.
(N. Y.) 150, 157 (1814).
Compare Wise v. Withers, 3 Cranch, 331, 2 L. Ed. 457 (1805)-distress for
nonpayment of militia fine; action of trespass against the collector-Marshall,
C. J.: "The court must
declare that a justice of the peace, with-
in the District of Columbia, is exempt from the performance of militia duty.
It follows, from this opinion, that a court-martial has no jurisdiction over
a justice of the peace, as a militiaman; he could never be legally enrolled;
and it is a principle that a decision of such a tribunal, in a case clearly withi-
out its jurisdiction, cannot protect the officer who executes it. The court
and the officer are all trespassers." Also Little v. Barreme, 2. Cranch, 170,
2 L. Ed. 243 (1804), ante, p. 332.
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
553
1
In re BOYLE.
(Supreme Court of Idaho, 1899. 6 Idaho, 609, 57 Pac. 706, 45 L. R. A.
832, 96 Am. St. Rep. 286.)
Application of William Boyle for writ of habeas corpus. Denied.
HUSTON, C. J. This is an application for a writ of habeas corpus.
To the petition a general demurrer is filed. The only question pre-
sented for our determination is, does the petition state facts entitling
the petitioner to the writ? The petition alleges the illegal detention
of the petitioner, and sets forth the alleged cause of, and authority
for, such detention; and it is upon the alleged illegality or want of
authority therefor that petitioner bases his right to the writ. As to
the facts set up in the petition, so far as not contradictory or conflict-
ing, for the purposes of this decision, in so far as they are assumed
to be true, do they constitute sufficient ground for the issuance of
the writ? It appears from the petition :
That on the 4th day of May, 1899, the Governor of the state of
Idaho issued the following proclamation:
"State of Idaho, Executive Office.
"Whereas, it appearing to my satisfaction that the execution of
process is frustrated and defied in Shoshone county, state of Idaho,
by bodies of men and others, and that combinations of armed men
to resist the execution of processes and to commit deeds of violence
exist in said county of Shoshone; and whereas, the civil authorities
of said county of Shoshone do not appear to be able to control such
bodies of men, or prevent the destruction of property and other acts
of violence; and whereas, on Saturday, the 29th day of April, 1899,
at or near the town of Wardner Junction, in said county of Shoshone,
state of Idaho, an armed mob did then and there wantonly destroy
property of great value, with attendant loss of life; and whereas,
said destruction of property, with attendant loss of life, by mob vio-
lence, as above set forth, is but one and a repetition of a series of
similar outrages covering a period of six years or more just passed,
the perpetrators of said outrages seeming to enjoy immunity from
arrest and punishment through subserviency of peace officers of said
county of Shoshone, or through fear on the part of said officers to
such bodies of lawless and armed' men;' and whereas, I have reason
to believe that similar outrages may occur at any time, and believing
the civil authorities of said county of Shoshone are entirely unable to
preserve order and protect property: Now, therefore, I, Frank Steu-
nenberg, Governor of the state of Idaho, by virtue of authority in me
vested, do hereby proclaim and declare the said county of Shoshone,
in the state of Idaho, to be in a state of insurrection and rebellion. In
testimony whereof, I have hereunto set my hand and caused to be
affixed the great seal of the state. Done at the city of Boisé, the capi-
tal of the state of Idaho, this 4th day of May, A. D. 1899, and of the
354
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
independence of the United States of America, the one hundred and
twenty-third.
Frank Steunenberg.
"By the Governor: M. Patrie, Secretary of State."
That thereafter, upon the call of the Governor, a military force was
sent into said Shoshone county by the President of the United States,
which proceeded at once to secure the arrest of the parties engaged
in and who committed the outrages of the 29th of April for the pur-
pose of bringing such parties before the proper tribunal for trial.
Among the parties who were arrested as being implicated in the
murders, and other crimes resulting from the insurrection, riot, or re-
bellion of the 29th of April, was the petitioner, and he bases his claim
to be discharged from such arrest lipon various grounds: "(1) No
insurrection, riot, or rebellion now exists in Shoshone county. (2)
The Governor has no authority to proclaim nártial law, or suspend
the writ of habeas corpus. (3) That martial law does not exist in
Shoshone county, and has not been proclaimed in said Shoshone county
by any one having authority to make such proclamation. (4) That the
little disturbance of the 29th of April is over; that the parties impli-
cated in it, after having destroyed about a quarter of a million dollars
of property, and committed several murders, have retired to their
homes; and that, in recognition of the inalienable rights of the citizen,
they ought not to be disturbed. (5) That the Governor had no right
or authority to send an agent or representative to Shoshone county to
consult and advise with the military officer sent there by the federal
government to assist in putting down the insurrection and restoring
order in said county."
Counsel have argued ably and ingeniously upon the question as to
whether the authority to suspend the writ of habeas corpus rests with
the legislative or executive power of the government; but, from our
view of this case, that question cuts no figure. We are of the opin-
ion that whenever, for the purpose of putting down insurrection or re-
bellion, the exigencies of the case demanded for the successful accom-
plishment of this end in view, it is entirely competent for the executive
or for the military officer in command, if there be such, either to suis-
pend the writ or disregard it, if issued. The statutes of this state make
it the duty of the Governor, whenever such a state or condition exists
as the proclamation of the Governor shows does and has existed in
Shoshone county for the past six or seven years, to proclaim such lo-
cality in a state of insurrection, and to call in the aid of the millitary
of the state, or of the federal government, to suppress such insurrec-
tion, and re-establish permanently the ascendency of the law. It would
be an absurdity to say that the action of the executive, under such cir-
cumstances, may be negatived, and set at naught by the judiciary, or
that the action of the executive may be interfered with or impeded by
the judiciary. If the courts are to be made a sanctuary, a city of
refuge, whereunto malefactors may fee for protection from punish-
ment justly due for the commission of crime, they will soon cease to
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
555
be that palladium of the rights of the citizen so ably described by
counsel.
Section 7405 of the Revised Statutes provides: "When an armed
force is called out for the purpose of suppressing an unlawful or
riotous assembly, or arresting the offenders and is placed under the
direction of any civil officer, it must obey the orders in relation there-
to of such civil officer."
The facts set forth in the Governor's proclamation warranted his
action. It is true that some of the facts recited therein are negatived
by averment in the petition, which would seem to put in issue the truth
or falsity of those recitals. On application for writ of habeas cor-
pus, the truth of recitals of alleged facts in a proclamation issued by
the Governor proclaiming a certain county to be in a state of insurrec-
tion and rebellion will not be inquired into or reviewed. The action
of the Governor in declaring Shoshone county to be in a state of in-
surrection and rebellion, and his action in calling to his aid the mili-
tary forces of the United States for the purpose of restoring good
order and the supremacy of the law, has the effect to put into force,
to a limited extent, martial law in said county. Such action is not
in violation of the Constitution, but in harmony with it, being neces-
sary for the preservation of government. In such case the govern-
ment may, like an individual acting in self-defense, take those steps
necessary to preserve its existence. If hundreds of men can arm them-
selves and destroy vast properties, and kill and injure citizens, thus
(lefeating the ends of government, and the government be unable to
take all needful and necessary steps to restore law and maintain order,
the state will then be impotent, if not entirely destroyed, and anarchy
placed in its stead.
It is no argument to say that the executive was not applied to by
any county officer of Shoshone county to proclaim said county to be
in a state of insurrection, and for this reason the proclamation was
without authority. The recitals in the proclamation show the existence
of one of two conditions, viz.: That the county officers of said county,
whose duty it was to make said application, were either in league with
the insurrectionists, or else, through fear of the latter, said officers
refrained from doing their duty. Under the circumstances, it was
the duty of the executive to act without any application from any
county officer of Shoshone county. This conclusion is based upon
what we deem a correct construction of the provisions of our Constitu-
tion and statutes in force, construed in pari materia. It having been
clemonstrated to the satisfaction of the Governor, after some six or
seven years' experience, that the execution of the laws in Shoshone
county, through the ordinary and established means and methods, was
rendered practically impossible, it became his duty to adopt the means
prescribed by the statute for establishing in said county the supremacy
of the law, and insure the punishment of those by whose unlawful and
criminal acts such a condition of things has been brought about; and
556
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
it is not the province of the courts to hinder, delay, or place obstruc-
tions in the path of duty prescribed by law, for the executive, but
rather to render to him all the aid and assistance in their power in
his efforts to bring about the consummation most devoutly prayed
for by every good and law-abiding citizen in the state.
The various questions raised by counsel have been considered by
the court, and it is our conclusion that the petition does not state facts
which show that the writ demanded ought to issue; wherefore the
said demurrer has been sustained, and the writ denied.
QUARLES and SULLIVAN, JJ., concur.14
SECTION 71.–TAXATION AND REVENUE-JURISDIC-
TIONAL PREREQUISITES
MCLEAN v. JEPHSON.
(Court of Appeals of New York, 1890. 123 N. Y. 142, 25 N. E. 409, 9
L. R. A. 493.)
RUGER, C. J. This was an application to the Supreme Court by
the receiver of taxes in the city of New York, under section 857 of
the city charter (chapter 410, Laws 1882), for a warrant to enforce
the payment of a tax upon personal property by a nonresident. The
section authorizing the proceeding reads as follows: "In case of the
refusal or neglect of any person to pay any tax imposed on him for
personal property, if there be no goods or chattels in his possession
upon which the same may be levied by distress and sale according
to law, and if the property assessed shall exceed the sum of one thou-
sand dollars, the said receiver, if he lias reason to believe that the per-
son taxed has debts, credits, choses in action, or other personal prop-
erty, not taxed elsewhere in this state and upon which levy cannot be
• made according to law, may thereupon, in his discretion, make appli-
cation within one year to the court of common pleas of the county, or
the Supreme Court, to enforce the payment of such tax."
The application was based upon a petition alleging the imposition
of the tax upon the defendant in the year 1883, as a nonresident
doing business and having capital invested therein, in the city of New
14 See, also, Com. ex rel. Wadsworth v. Shortall, 206 Pa. 165, 55 Atl. 952,
65 L. R. A. 193, 98 An. St. Rep. 759 (1903).
Other cases illustrating the appeal to the courts against the exercise of
military or executive power; Mostyn v. Fabrigas, Cowper, 161 (1774); Little
V. Barreme, 2 Cranch, 170, 2 L. Ed. 243 (1804); Georgia v. Stanton, 6 Wall.
50, 18 L. Ed. 721 (1867); Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 137
(1866).
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
557
York. An order to show cause why the relief asked should not be
granted was issued and served upon the defendant, and, upon the re-
turn day thereof, he appeared and showed that he was at the time the
alleged assessment was made, and for a long time previous thereto
had been, a resident of the state of New Jersey, and had never trans-
acted business in the city of New York, except as the agent of a cor-
poration organized and doing business in the state of New Jersey
as a manufacturer of carriages; that the company had a wareroom
in the city of New York for the exhibition and sale of its own manu-
factures; and that defendant had charge of such wareroom as its
agent. These facts were undisputed, and must be considered as con-
clusively established in the further consideration of the case.
The authority of the assessors to make the assessment in question is
claimed to have been derived from section 1, c. 37, Laws 1855, which
reads as follows: "All persons and associations doing business in the
state of New York as merchants, bankers, or otherwise, either as prin-
cipals or partners, whether special or otherwise, and not residents
of this state, shall be assessed and taxed on all sums invested in any
manner in said business the same as if they were residents of this
state, and said taxes shall be collected from the property of the firms,
persons, or associations to which they severally belong.
This statute clearly defines the limits of the power possessed by the
assessment officers, and their jurisdiction depends upon the exist-
ence of the facts stated in the statute. To authorize an assessment
under this statute, it is indispensable that the person assessed shall,
in fact, have money invested in a business carried on by him in this
state, either as a principal or partner. Assessors cannot acquire juris-
diction to make such assessments by determining that they have it,
and their authority to act must always depend upon the existence of
the jurisdictional facts described in the statute. The facts stated
conclusively show that the defendant was not doing such business in
the city of New York, either as a principal or a partner, and that he
did not have any money invested in the business there carried on.
That business was carried on by the corporation of which the defend-
ant was agent, and the money invested in it was the property of that
corporation. The court below conceded that, if the facts stated had
been known to the tax commissioners, they could not lawfully have
made an assessment against the defendant; but it was claimed that
the act of the commissioners in making it was judicial and could not
be assailed collaterally, and that the defendant should have adopted
some means, either by appearing before the tax commissioners when
they sat to review assessments, and urged his nonliability to taxation,
or, by certiorari from the determination of the assessors, raised the
question of his liability.
There is no prerogative of the government which is more liable to
ahuse than that which authorizes it to seize and appropriate the prop-
erty of the citizen for public purposes, and none which is regarded
558
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
with more jealous scrutiny by the courts. The authority of its officers
to exercise the powers of taxation has uniformly been carefully
scrutinized and limited to the express warrant of the statute, and
cannot be extended by implication or construction. This is especially
the case where its demands may be enforced by fine and impris-
onment, and it would be contrary to the traditions of our people, as
well as to principles of justice and law, to permit the liberty of the
citizen to be jeopardized by a strained and doubtful construction of a
statute. The defendant has, confessedly, been assessed upon prop-
erty which he did not own, and is now threatened with imprisonment,
unless he pays the illegal exaction. The only authority the tax com-
missioners had to assess the personal property of a nonresident was
in the event that he employed it in carrying on a business in this state,
as principal or partner. But the defendant had been taxed upon an
investment which he never made, and upon a business carried on by
other parties. This has been done upon the theory not tliat he had
property and was carrying on such business, but because he was
negligent in failing to examine the assessment lists, and, by omitting
to do so and obtaining a correction of them, has been rendered liable
to the payment of a tax on property which he did not own. The
property assessed could not have been taken for the payment of this
tax, as it did not belong to the person against whom it was levied, and
the strange anomaly is presented of an assessment against a person
for property which he did not own, under an act which authorizes an
assessment only upon his property invested in business, and in respect
to property which could not be taken in payınent for the tax, although
such property alone is pointed out by the act as the fund from which
the tax is to be collected. Upon such a foundation is built up a per-
sonal claim against the alleged taxpayer, which is sought to be en-
forced by imprisonment. The ground upon which it is claimed to be
sustainable, is that the tax commissioners have decided that he was a
taxpayer, and, in so doing, acted judicially, and therefore their deter-
mination cannot be attacked collaterally,
It is argued that, public notice by publication having been given
that the assessment rolls of New York City had been completed and
would be open for inspection and review at a certain time and place
in that city, the defendant, having failed to examine them and to
procure a correction of the erroneous assessment, was precluded from
questioning the validity of such assessment in this proceeding. We
are of the opinion that the defendant was under no obligation to ex-
amine the assessment lists of the city of New York. It is not
claimed that the notices published by the assessors contained any
intimation that an assessment had been made against the defendant,
or that he had personal notice, in any other forin, of the making of
suci assessment. There was no law making the defendant liable
to taxation in New York, and no foundation for a claim that he
knew, or had any reason to suppose, that an assessment had been
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
559
made against him. He was under no greater obligation to examine
the assessment lists of New York City than any other of the thou-
sands of citizens of other states who visited that city during the year
1883. A person subject to taxation in a particular place may well
be held liable for an erroneous assessment if he neglects to examine
the rolls and obtain correction of errors therein; but a nonresident,
having no taxable property in such locality and no just reason to sup-
pose he has been taxed, is under no such obligation. He may safely re-
ly upon his immunity from taxation in any place where he does not re-
side, and is not compelled to anticipate and thwart the act of public
officers proceeding without authority of law in such places. The pub-
lished notices of the completion of assessment rolls, required by the
statute, are intended for the information of taxpayers within the ju-
risdiction of the particular assessment officers, and can have no oper-
ation upon nonresidents of such locality who have no property liable
to taxation therein.
We think the authorities are clearly adverse to the decision of the
court below. It is conceded that the question depends upon the fact
whether the assessors had jurisdiction to make the assessment. If
they had not, then the assessment is confessedly void. Assessors are
ministerial officers, and do not generally act judicially in the perform-
ance of their duties. Having, however, acquired jurisdiction of the
person and subject-matter liable to be taxed, certain questions may
arise which are necessarily judicial in character, and in respect to
such questions their action is necessarily final, unless their determina-
tions be directly assailed. Instances of such questions are the fixing
of the value of property assessed, and determining the extent of a
claim to exemption, where the person assessed is liable to be taxed.
Weaver v. Devendorf, 3 Denio, 118.
The authorities in this state seem to be quite uniform, to the effect
that the question whether persons or property are assessable under
the statutes is a jurisdictional question, and is always open to inquiry
when the authority to make an assessment is assailed.
The case of Dorn v. Backer, 61 N. Y. 261, cannot, we think, on prin-
ciple, be distinguished from this case. That was an action against
the assessor to recover damages for wrongfully assessing the plaintiff's
farm, in the town of Ava. The farm lay partly in Ava, and partly
in Boonville. It was assessable in the township where he resided. He
had formerly occupied a house upon that part of his farm lying in
the town of Ava. Subsequently, he removed into a small house built
on the land in Boonville, and had apparently resided there some years.
It was there declared: “It may be said now to be settled that asses-
sors cannot acquire jurisdiction by deciding that they have it. Before
assessing the plaintiff for taxation in the town of Ava, it was es-
sential that he should be a resident of that town, and, if not, they had
no jurisdiction." It was held that the action was sustainable.
In Bank v. City of Elmira, 53 N. Y. 49, the action was to recover
560
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RELIEF AGAINST ADMINISTRATIVE ACTION.
*
damages for the conversion of plaintiff's property. The defendant
justified under an allegation that the property was taken by its col-
lector to satisfy a tax duly imposed upon the capital of the bank by
the assessors of the city. Under the law (chapter 761, Laws 1866)
the capital of a bank was not assessable. The late Chief Judge Church,
writing the opinion of the court, says: "It is claimed that the asses-
sors had jurisdiction to make the assessment; that their act was ju-
dicial, and, although erroneous, is conclusive until reversed by a direct
proceeding instituted for that purpose. This proposition cannot be
predicated of this case, either in fact or in law. Some of the duties of
.
assessors are judicial in their nature, and as to them, while acting
within the scope of their authority, they are protected from attack,
collaterally, to the same extent as other judicial officers; but they are
subordinate officers, possessing no authority, except such as is con-
ferred upon them by statute, and it is a well-settled and salutary rule
that such officers must see that they act within the authority committed
to them.
So, when their right to act depends upon the ex-
istence of some fact which they erroneously determine to exist, their
acts are void.
This court held, in 15 N. Y. 316, that, if the
assessors erred in determining whether a person was a taxable in-
habitant of a town, they did so at their peril, and were liable to an
action by the party aggrieved. This was upon the principle that the
act, although judicial in its nature and requiring the exercise of
judgment, was nevertheless necessary to confer jurisdiction, which
could not be conferred by an erroneous decision.”
The case of Mygatt v. Washburn, 15 N. Y. 316, referred to, was an
action by the taxpayer against the assessor for an illegal assessment.
The plaintiff had been a resident of the town of Oxford until the last
of May, when he removed to the county of Oswego. The time for
making assessments in Oxford covered the months of May and June
and the plaintiff's name was entered on the assessment lists in May.
It was held that the status of the taxpayer as to residence did not be-
come irrevocably fixed until after July 1st. Judge Denio says: “The
plaintiff, therefore, was not subject to the jurisdiction of the assessors.
In placing his name on the roll, and adding thereto an amount as the
value of his personal property, they acted without authority. They
are, therefore, responsible to the plaintiff for the damages which en-
sued. It was not, in the view of the law, an error of judgment."
In view of the fact that the authorities on this point are all uniform,
we will only refer to In re New York Catholic Protectory, 77 N. Y.
342, because it recognizes, as an established principle, that the deter-
mination by assessors that a person or his property are taxable, is
jurisdictional, and that an error made by them in such determination
against the taxpayer is fatal to the validity of the assessment. Judge
Rapallo, writing the opinion of the court, says: “By the act amending
their charter (section 3, c. 647, Laws 1866), it is provided that 'the
real and personal estate belonging to, and used for the charitable pur-
:
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
561
poses of, said association shall be exempt from taxation. That the
land upon which the tax in question was imposed belonged to the pe-
titioners, and was used for such charitable purposes, is alleged in the
petition, and not controverted in any manner. The assessors, conse-
quently, had no jurisdiction to assess that land; and, even if they be
deemed to have determined as a fact that the land was not so used
as to bring it within the exception, their determination was not con-
clusive, the fact being one upon which their jurisdicton depended. If
the jurisdictional fact did not exist, the determination of the assessors
could not establish jurisdiction in them.”
The assessment officers in this case had authority to assess the prop-
erty of a nonresident doing business in this state as a principal, or part-
ner having money invested in the business, and in such case only.
Their authority to assess depended upon the fact that he was engaged
in business, and not upon appearances which might be deceptive and
uncertain. The defendant, concededly, was not a principal or partner
in any business conducted in this state, and had no money invested in
such business. His principal might have been engaged in such business,
and might have been liable to taxation; but even as to that there is
some question. People ex rel. Parker Mills v. Commissioners of Taxes,
23 N. Y. 242. But the defendant was not only not liable to be assessed,
but the case does not show that there were any reasonable grounds for
supposing that he was engaged in a business making him liable to
taxation. He was a nonresident, and did not own the property as-
sessed, and did not appear to be carrying on business in any capacity
except as the agent of a responsible principal located in another state.
Without discussing other questions in the case, which might possi-
bly be reviewed upon the record, we are, for the reasons stated, of the
opinion that the orders of the courts below should be reversed. The
orders of the General and Special Terms should be reversed, and the
application of the petitioner denied, with costs in all courts. All con-
cur.15
DE LIMA V. BIDWELL.
(Supreme Court of United States, 1900. 182 U. S. 1, 21 Sup. Ct. 743.
45 L. Ed. 1011.)
In Error to the Circuit Court of the United States for the Southern
District of New York to review a judgment sustaining a demurrer
in an action removed from a state court and brought against the col-
lector of the port of New York to recover back duties on goods im-
ported from Porto Rico.
15 Compare Easton v. Calendar, 11 Wend. (N. Y.) 90 (1833), ante, p. 297.
See, also, Rooke v. Withers, 5 Coke Rep. 99b (1598); Nichols v. Walker,
Cro. Car. 394 (1634); Terry v. Huntington, Hardres, 480 (1668).
FR. ADM.LAW-36
562
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
Mr. Justice BROWN delivered the opinion of the court. 16
This case raises the single question whether territory acquired by
the United States by cession from a foreign power remains a “foreign
country within the meaning of the tariff laws.
1. Did the question of jurisdiction raised by the demurrer involve
only the jurisdiction of the Circuit Court as a federal court, we should
be obliged to say that the defendant was not in a position to make this
claim, since the case was removed to the federal court upon his own
petition. It is no infringement upon the ancient maxim of the law
that consent cannot confer jurisdiction, to hold that, where a party has
procured the removal of a cause from a state court upon the ground
that he is law fully entitled to a trial in a federal court, he is estopped to
deny that such removal was lawful if the federal court could take ju-
risdiction of the case, or that the federal court did not have the same
right to pass upon the questions at issue that the state court would
have had if the cause had remained there. Defendant neither gains
nor loses by the removal, and the case proceeds as if no such removal
had taken place. Cowley v. Northern P. R. Co. 159 U. S. 569, 583,
16 Sup. Ct. 127, 40 L. Ed. 263, 267; Mansfield, C. & L. M. R. Co. v.
Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462; Mexican Nat.
R. Co. v. Davidson, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672.
This, however, is more a matter of words than of substance, as the
defendant unquestionably has the right to show that the state court
had no jurisdiction, or that the complaint did not set forth facts suffi-
cient to constitute a cause of action. This we understand to be the
substance of the defense in this connection.
By Rev. St. § 2931 (U. S. Comp. St. 1901, p. 1933), it was enacted
that the decision of the collector "as to the rate and amount of duties"
to be paid upon imported merchandise should be final and conclusive,
unless the owner or agent entered a protest and within thirty days ap-
pealed therefrom to the Secretary of the Treasury, and, further, that
the decision of the Secretary should be final and conclusive, unless suit
were brought within ninety days after the decision of the Secretary.
By Rev. St. § 3011 (U. S. Comp. St. 1901, p. 1985), any person hav-
ing made payment under such protest was given the right to bring an
action at law and recover back any excess of duties so paid.
The law stood in this condition until June 10, 1890, when an act
known as the customs administrative act was passed (Act June 10,
1890, c. 407, 26 Stat. 131 [U. S. Comp. St. 1901, p. 1886]), by which
the above sections (Rev. St. 88 2931, 3011) were repealed and new
regulations established, by which an appeal was given from the de-
cision of the collector "as to the rate and amount of duties chargeable
upon imported merchandise,” if such duties were paid under protest,
to a Board of General Appraisers whose decision should be final and
conclusive (section 14) "as to the construction of the law and the facts
18 Only a portion of the opinion of Brown, J., is here printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
563
re-
respecting the classification of such merchandise and the rate of duty
imposed thereon under such classification," unless within thirty days
one of the parties applied to the Circuit Court of the United States
for a review of the questions of law and fact involved in such decision.
Section 15. It was further provided that the decision of such court
should be final, unless the court were of opinion that the question in-
volved was of such importance as to require a review by this court,
which was given power to affirm, modify, or reverse the decision of the
Circuit Court.
The effect of the customs administrative act was considered by this
court in Re Fassett, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed. 1087,
in which we held that the decision of the collector that a yacht was an
imported article might be reviewed upon a libel for possession filed
by the owner, notwithstanding the customs administrative act. It was
held that the review of the decision of the Board of General Appraisers,
provided for by section 15 of that act, was limited to decisions of the
board "as to the construction of the law and the facts respecting the
classification” of imported merchandise "and the rate of duty imposed
thereon under such classification," and that it did not bring up for
view the question whether an article be imported merchandise or not,
nor, under section 15, is the ascertainment of that fact such a decision
as is provided for.
Said Mr. Justice Blatchford: "Nor can the court of review pass
upon any question which the collector had not original authority to
determine. The collector had no authority to make any determination
regarding any article which is not imported merchandise; and if the
vessel in question here is not imported merchandise, the court of re-
view would have no jurisdiction to determine any matter regarding
that question, and could not determine the very fact which is in issue
under the libel in the District Court on which the rights of the libelant
depend. Under the customs administrative act the libelant, in order to
have the benefit of proceedings thereunder, must concede that the ves-
sel is imported merchandise, which is the very question put in conten-
tion under the libel, and must make entry of her as imported merchan-
dise, with an invoice and a consular certificate to that effect.” It was
held that the libel was properly filed.
The question involved in this case is not whether the sugars were
importable articles under the tariff laws, but whether, coming as they
did from a port alleged to be domestic, they were imported from a for-
eign country; in other words, whether they were imported at all as
that word is defined in Woodruff v. Parham, 8 Wall. 123, 132, 19 L.
Ed. 382, 384. We think the decision in the Fassett Case is conclu-
sive to the effect that, if the question be whether the sugars were im-
ported or not, such question could not be raised before the Board of
General Appraisers; and that whether they were imported merchan-
dise for the reasons given in the Fassett Case that a vessel is not an
importable article, or because the merchandise was not brought from a
564
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RELIEF AGAINST ADMINISTRATIVE ACTION.
foreign country, is immaterial. In either case the article is not im-
ported.
Conceding, then, that section 3011 has been repealed, and that no
remedy exists under the customs administrative act, does it follow that
no action whatever will lie? If there be an admitted wrong, the courts
will look far to supply an adequate remedy. If an action lay at com-
mon law, the repeal of sections 2931 and 3011, regulating proceedings
in customs cases (that is, turning upon the classification of merchan-
dise), to make way for another proceeding before the Board of Gen-
eral Appraisers in the same class of cases, did not destroy any right
of action that might have existed as to other than customs cases; and
the fact that by section 25 no collector shall be liable “for or on ac-
count of any rulings or decisions as to the classification of said mer-
chandise or the duties charged thereon, or the collection of any dues,
charges, or duties on or on account of said merchandise,” or any other
matter which the importer might have brought before the Board of
General Appraisers, does not restrict the right which the owner of the
merchandise might have against the collector in cases not falling with-
in the customs administrative act. If the position of the government
be correct, the plaintiff would be remediless; and if a collector should
seize and hold for duties goods brought from New Orleans, or any
other concededly domestic port, to New York, there would be no
method of testing his right to make such seizure. It is hardly possi-
ble that the owner could be placed in this position. But we are not
without authority upon this point.
The case of Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373, was an
action of assumpsit against the collector of the port of New York to
recover certain duties upon goods alleged to have been improperly
classified. It was held that as the payment was purely voluntary,
by a mutual mistake of law, no action would lie to recover them
back, although it would have been different if they had been paid
under protest. Said Mr. Justice Thompson: "Here, then, is the
true distinction: when the money is paid voluntarily and by mistake
to an agent, and he has paid it over to his principal, he cannot be
made personally responsible; but if, before paying it over, he is
apprised of the mistake, and required not to pay it over, he is per-
sonally liable.” If the payment of the money be accompanied by
a notice to the collector that the duties charged are too high and
that the person paying intends to sue to recover back the amount
erroneously paid, it was held that such action must lie "unless the broad
proposition can be maintained, that no action will lie against a collector
to recover back an excess of duties paid him, but that recourse must be
had to the government for redress.” The case recognized the fact
that, with respect to money paid under a mistake of law, the collector
stood in the position of an ordinary agent, and could be made personal-
ly liable in case the money were paid under protest.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
565
This decision was made in 1836. Apparently in consequence of it
an act was passed in 1839 requiring moneys collected for duties to be
deposited to the credit of the Treasurer of the United States; and it
was made the duty of the Secretary of the Treasury to draw his war-
rant upon the Treasurer in case he found more money had been paid
to the collector than the law required. It was held by a majority of
this court in Cary v. Curtis, 3 How. 236, 11 L. Ed. 576, that this act
precluded an action of assumpsit for money had and received against
the collector for duties received by him, and that the act of 1839 fur-
nished the sole remedy. It was said of that case in Arnson v. Murphy,
109 U. S. 238, 240, 3 Sup. Ct. 184, 186, 27 L. Ed. 920, 921: "Congress,
being in session at the time that decision was announced, passed the
explanatory act of February 26, 1845, which, by legislative construc-
tion of the act of 1839, restored to the claimant his right of action
against the collector, but required the protest to be made in writing at
the time of payment of the duties alleged to have been illegally exacted,
and took from the Secretary of the Treasury the authority to refund
conferred by the act of 1839 (5 Stat. 349, 727, c. 22). This act of 1845
was in force, as was decided in Barney v. Watson, 92 U. S. 449, 23 L.
Ed. 730, until repealed by implication by the act of June 30, 1864" (13
Stat. 214, c. 171, § 14), carried into the Revised Statutes as $8 2931
and 3011.
In the same case of Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct.
184, 27 L.Ed. 920, it was decided that the common-law right of action
against the collector to recover back duties illegally collected was taken
away by statute, and a remedy given, based upon these sections, which
was exclusive. The decision in Elliott v. Swartwout was recognized,
but so far as respected customs cases (i. e., classification cases) was
held to be superseded by the statutes. So in Schoenfeld v. Hendricks,
152 U. S. 691, 14 Sup. Ct. 754, 38 L. Ed. 601, it was held that an
action could not be maintained against the collector, either at common
law or under the statutes, to recover duties alleged to have been ex-
acted, in 1892, upon an importation of merchandise, the remedy giv-
en through the Board of General Appraisers being exclusive.
The criticism to be made upon the applicability of these cases is that
they dealt only with imported merchandise and with the duties col-
lected thereon, and have no reference whatever to exactions made by
a collector, under color of the revenue laws, upon goods which have
never been imported at all. With respect to these the collector stands
as if, under color of his office, he had seized a ship or its equipment,
or any other article not comprehended within the scope of the tariff
laws. Had the sugars involved in this case been admittedly imported
that is, brought into New York from a confessedly foreign country,
and the question had arisen whether they were dutiable, or belonged
to the free list, the case would have fallen within the customs admin-
istrative act, since it would have turned upon a question of classifica-
tion.
566
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RELIEF AGAINST ADMINISTRATIVE ACTION.
The fact that the collector may have deposited the money in the
treasury is no bar to a judgment against him, since Rev. St. $ 989
(U. S. Comp. St. 1901, p. 708), provides that, in case of a recovery of
any money exacted by him and paid into the treasury, if the court
certifies that there was probable cause for the act done, no execution
shall issue against him, but the amount of the judgment shall be paid
out of the proper appropriation from the treasury.
We are not impressed by the argument that, if the plaintiffs insisted
that these sugars were not imported merchandise, they should have
stood upon their rights, refused to enter the goods, and brought an
action of replevin to recover their possession. It is true that, to pre-
vent the seizure of the sugars, plaintiffs did enter them as imported
merchandise; but any admission derivable from that fact is explained
by their protest against the exaction of duties upon them as such. They
waived nothing by taking this course. The collector lost nothing,
since he was apprised of the course they would probably take. It is
true that in the Fassett Case, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed.
1087, the proceeding was by libel for possession of the vessel which is
analogous to an action of replevin at common law; but it would
appear that Rev. St. § 934 (U. S. Comp. St. 1901, p. 689), would
stand in the way of such a remedy here, since by that section "all
property taken or detained by any officer or other person under au-
thority of any revenue law of the United States shall be irrepleviable,
and shall be deemed to be in the custody of the law, and subject only
to the orders and decrees of the courts of the United States having
jurisdiction thereof.” If the words "under authority of any rev-
enue law” are to be construed as if they read “under color of any rev-
enue law,” it would seem that these sugars could not be made the
subject of a replevin; but even conceding that replevin would lie,
we consider it merely a choice of remedies, and that the plaintiffs were
at liberty to waive the tort and proceed in assumpsit.
We are all of opinion that this action was properly brought. * * *
SECTION 72.-SAME-QUESTIONS OF LAW
-
NORTH GERMAN LLOYD S. S. CO. v. HEDDEN, Collector.
SAME V. MAGONE, Collector.
(Circuit Court of United States, D. New Jersey, 1890. 43 Fed. 17.)
WALES, J.17 The plaintiff, a duly organized corporation under the
laws of the Hanseatic republic of Bremen, which is a part of the Ger-
man empire, is the owner of a line of ocean steamships, plying regu-
17 Only. a portion of the opinion of Wales, J., is printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
507
larly between the ports of Bremen and New York, and brings these ac-
tions, under section 2931, Rev. St. (U. S. Comp. St. 1901, p. 1933),
to recover the amount of certain tonnage dues, alleged to have been
unlawfully collected from said ships during the period extending from
June 26, 1884, to July 28, 1888, and while the defendants were suc-
cessively collectors of customs at the last-named port. The vessels
cleared from Bremen for New York via Southampton, Eng., stopping
at or near the latter place temporarily, to discharge cargo and pas-
sengers, and to take on board additional cargo, passengers, and mails.
The consignees of the vessels paid the dues, in every instance, under
protest, and the plaintiff appealed to the Secretary of the Treasury,
and finally, at the suggestion of the latter officer and with the con-
currence of the department of justice, brought these actions to
determine the authority of the defendants.
By article 9 of the treaty of December 20, 1827, between the United
States and the Hanseatic republics, "the contracting parties * * *
engage mutually not to grant any particular favor to other nations, in
respect of commerce and navigation, which shall not immediately be-
come common to the other party.” Public Treaties, 400. Article 9 of
the Prussian-American treaty of May 1, 1828 (Pub. Treaties, 656),
contains a like stipulation. These treaties have been held by both the
American and German governments to be valid for all Germany. On
the 26th of January, 1888, the President, in virtue of the authority
vested in him by section 11 of the act of June 19, 1886, c. 421, 24
Stat. 81 (U. S. Comp. St. 1901, p. 2850), issued his proclamation,
wherein, after reciting that he had received satisfactory proof that no
tonnage or lighthouse dues, or any equivalent tax or taxes whatever,
are imposed upon American vessels entering the ports of the German
empire, either by the imperial government or by the governments of
the German maritime states, and that vessels belonging to the United
States are not required, in German ports, to pay any fee or due
of any kind or nature, or any import duty higher or other than is pay-
able by German vessels or their cargoes, did "declare and proclaim
that from and after the date of this my proclamation shall be sus-
pended the collection of the whole of the duty of six cents per ton
upon vessels entered in the ports of the United States from
any of the ports of the empire of Germany,
and the sus-
pension hereby declared and proclaimed shall continue so long as the
reciprocal exemption of vessels belonging to citizens of the United
States and their cargoes shall be continued in the said ports of the
empire of Germany, and no longer."
The commissioner of navigation, in his circular letter No. 19, dated
February 1, 1888, and approved by the Secretary of the Treasury,
addressed to the collectors of customs and others, decided that the
President's proclamation does not apply to vessels which entered be-
fore the date of the proclamation, and that only those German vessels
"arriving directly from the ports of the German empire may be admit-
568
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
*
*
ted under the proclamation without the payment of the dues therein
mentioned.” The commissioner of navigation claims authority to
make this decision by virtue of section 3 of the act of Congress of
July 5, 1884, c. 221, 23 Stat. 119 (U. S. Comp. St. 1901, p. 199),
entitled "An act to constitute a bureau of navigation in the Treasury
Department,” which reads as follows: “That the commissioner of
navigation shall be charged with the supervision of the laws relating
to the admeasurement of vessels, and the assigning of signal letters
thereto, and of designating their official number; and on all ques-
tions of interpretation, growing out of the execution of the laws relat-
ing to these subjects, and relating to the collection of tonnage tax,
and to the refunding of such tax when collected erroneously or
illegally, his decision shall be final."
The plaintiff's vessels were German vessels, and on the 19th day of
June, 1886, and thereafter until now, the government of Germany ex-
acted no tonnage tax or taxes whatever on vessels of the United States
arriving in German ports.
As to the time when the act of June 19, 1886, went into operation,
whether immediately from and after the date of its approval, or not
until the date of the President's proclamation, and also whether the
voyages of the plaintiff's vessels from Bremen to New York must
be made “directly,” and without stoppage at an intermediate port,
in order to be exempted from the imposition and payment of tonnage
dues, the decision of these questions by the commissioner of naviga-
tion must be held to be conclusive, unless so much of section 3 of the
act of July 5, 1884, which makes his decision final in such matters,
is unconstitutional. Much learning and ability have been employed
by plaintiff's counsel to establish the invalidity of this portion of the
act, which invests a department officer with such unlimited judicial
power, and by which he is enabled to decide all contests in relation
to alleged illegal dues, ex parte, and absolutely. On the other hand,
the labor and responsibility of the court have been increased by the
omission of the defendant's counsel to furnish any assistance towards
the solution of the questions, and permitting them to pass sub silentio.
The subject, however, is not res integra. In Cary v. Curtis, 3 How.
236, 11 L. Ed. 576, the Supreme Court had under consideratiori the
constitutionality of the third section of the act of Congress of March
3, 1839, entitled "An act making appropriations for the civil and dip-
lomatic expenses of the government for the year 1839," by which the
Secretary of the Treasury was authorized to finally decide when more
duties had been paid to any collector of customs, or to any person act-
ing as such, than the law required, and to draw his warrant in favor of
the person or persons entitled for a refund of the amounts so overpaid.
The opinion of the court discusses very ably and at much length the
questions involved in that case.
A few sentences taken from the opinion will indicate the grounds
upon which the validity of the act of 1839 was sustained: “We have
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
569
*
*
no doubts (say the court] of the objects or the import of that act.
We cannot doubt that it constitutes the Secretary of the Treasury the
source whence instructions are to flow; that it controls both the posi-
tion and the conduct of the collectors of the revenue; that it has
denied to them any right or authority to retain any portion of the
revenue for purposes of contestation or indemnity; has ordered and
declared those collectors to be the mere organs of receipt and transfer,
and has made the head of the Treasury Department the tribunal for
the examination of claims for duties said to have been improperly
paid.
It is contended, however, that the language and the
purposes of Congress, if really what we hold them to be declared in
the statute of 1839, cannot be sustained, because they would be repug-
nant to the Constitution, inasmuch as they would debar the citizen
of his right to resort to the courts of justice.
The objec-
tion above referred to admits of the most satisfactory refutation.
This may be found in the following positions, familiar in this and in
most other governments, viz. that the government, as a general rule,
claims an exemption from being sued in its own courts. That al-
though, as being charged with the administration of the laws, it will
resort to those courts as means of securing this great end, it will not
permit itself to be impleaded therein, save in instances forming con-
ceded and express exceptions. Secondly, in the doctrine, so often
ruled in this court, that the judicial power of the United States, al-
though it has its origin in the Constitution, is (except in enumerated
instances, applicable exclusively to this court) dependent for its dis-
tribution and organization, and for the modes of its exercise, entirely
upon the action of Congress, who possess the sole power of creating
the tribunals (inferior to the Supreme Court) for the exercise of the
judicial power, and of investing them with jurisdiction either limited,
concurrent, or exclusive, and of withholding jurisdiction from them in
the exact degrees and character which to Congress may seem proper
for the public good. To deny this position would be to elevate the
judicial over the legislative branch of the government, and to give to
the former powers limited by its own discretion merely. It follows,
then, that the courts created by statute must look to the statute as the
warrant for their authority. *
The courts of the United
States are all limited in their nature and constitution, and have not
the powers inherent in courts existing by prescription or by the com-
mon law.
The courts of the United States can take cog-
nizance only of subjects assigned to them expressly or by necessary
implication; a fortiori, they can take no cognizance of matters that
by law are either denied to them, or expressly referred ad aliud ex-
amen."
This exposition of the origin and extent of the jurisdiction of the
courts of the United States was reaffirmed in Sheldon v. Sill, 8 How.
449, 12 L. Ed. 1147, where it was held that courts created by statute
can have no jurisdiction but such as the statute confers. The right
*
*
*
570
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
given by section 2931, Rev. St., to sue for overpaid dues is taken
away by the act of July 5, 1884, and the power to determine contro-
versies arising from alleged exactions by collectors is deposited with
the commissioner of navigation. Such is the effect of the decisions
just cited, and which, as long as they are not overruled by the tribunal
which made them, must be obeyed as the law of the land.
The
authorities referred to by plaintiff's counsel are cases where depart-
ment officers, in making regulations to be observed by their sub-
ordinates, exceeded their statutory power, but in no one instance
was it pretended that the officer was clothed with the power to make
a final decision in contested matters. It was perhaps unnecessary,
in view of Cary v. Curtis, and Sheldon v. Sill, that I should have
done more than acquiesce in the doctrines there announced, and sup-
port the validity of the act of July 5, 1884, without further discussion,
but the large amount of money involved in the present actions, and
the earnestness and force with which the plaintiff's claims have been
pressed, have induced me to make a more extended presentation of
them than was at first designed. It niust be borne in mind that this
court is not called on to express any opinion on the justice or ex-
pediency of placing such unlimited power in the hands of the com-
missioner of navigation as is conferred by the act of July 5, 1881.
The duty of the court is to discover whether the act is in conflict with
the Constitution, and, on being satisfied that it is not, to judge ac-
cordingly. To pursue any other course would be not only extra-
judicial, but also improper, in assuming to criticise the wisdom of
Congress in making the law. Neither is the court required to say
whether the commissioner of navigation is or is not correct in his
interpretation of the law. Congress has seen fit to constitute him
the final arbiter in certain disputes, and Congress alone can supply a
remedy for any wrong which may have årisen from his construction
of the law relating to the collection of tonnage due.
Let judgment be entered in each case for the defendant.
LAIDLAW v. ABRAHAM, Collector.
(Circuit Court of United States, D. Oregon, 1890. 43 Ted. 297.)
DEADY, J.18 The plaintiff, James Laidlaw, doing business as
“James Laidlaw & Co.," brings this action against Hyman Abraham,
collector of customs at the port of Portland, in the district of Walla-
iet to recover the sum of $793.50, alleged to have been wrongfully
exacted by the defendant from the British ship Largo Law, as a ton-
*
*
nage tax.
The only other point made in support of the demurrer is that the
decision on the appeal to the Secretary was, under Act July 5, 1884,
18 Only a portion of the opinion of Deady, J., is printed.
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
571
c. 221, 23 Stat. 118 (U. S. Comp. St. 1901, p. 199), in fact made by
the commissioner of navigation, and is by said act made final, and is
therefore a bar to this action.
This act is entitled "An act to constitute a bureau of navigation
in the Treasury Department.” The commissioner created by it is
charged, “under the direction of the Secretary of the Treasury” with
many duties concerning "the commercial, marine, and merchant sea-
men of the United States;" and, by section 3 thereof, "with the
supervision of the laws relating to the admeasurement of vessels and
the assigning of signal letters thereto, and of designating their of-
ficial number; and on all questions of interpretation growing out of
the execution of the laws relating to these subjects, and relating to the
the collection of tonnage tax, and to the refund of such tax when
collected erroneously or illegally, his decision shall be final.”
At first blush it may appear that this provision in the Act of 1884
repealed so much of sections 2931, 3011, Rev. St. (U. S. Comp. St.
1901, pp. 1933, 1985), as gives the person paying such illegal tax the
right of redress in the courts, after an unsuccessful appeal to the
department. But, on reflection, I am satisfied that the word "final”
is used in this connection with reference to the department, of which
the commissioner is generally a subordinate part.
In my judgment, the purpose of the provision is to relieve the head
of the department from the labor of reviewing the action of the com-
missioner in these matters, to sidetrack into the bureaụ of navigation
the business of rating vessels for tonnage duties, and deciding ques-
tions arising on appeals from the exaction of the same by collectors.
The appeal is still taken to the Secretary of the Treasury, as provided
in section 2931, but goes to the commissioner for decision, whose ac-
tion is "final" in the department, as it would not be but for this pro-
vision of the statute.
This being so, and nothing appearing to the contrary, it follows
that the right of action given to the unsuccessful appellant in such
cases is not taken away. The appeal to the department has simply
been decided by the commissioner, rather than the Secretary, and,
that having been adverse to the plaintiff, his right of action against
the collector attaches at once.
And, even if it were plain that Congress in the passage of this act
intended to deprive the plaintiff of all redress in the courts, might
he not in good reason claim that the act is so far unconstitutional and
void, as being contrary to the fifth amendment, which declares that
no person shall be deprived of his "property without due process of
law ?!
The demurrer is overruled.
572
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 13.-SAME-QUESTIONS OF FACT
HARRINGTON v. GLIDDEN.
(Supreme Judicial Court of Massachusetts, 1901. 179 Mass. 486, 61 N. E.
54, 94 Am. St. Rep. (13.)
Exceptions from superior court, Middlesex county.
Action by one Harrington, as collector of taxes, against one Glid-
den. From a judgment for plaintiff, defendant brings exceptions.
Overruled.
HAMMOND, J.19 In this action the plaintiff, as collector, seeks to
recover a tax assessed upon the defendant, as trustee. It is contend-
ed by the defendant that, even if he was a trustee, such was the
nature and location of the property, and his relation to it, that he
was not taxable as such.
The first question is whether this ground of the defense is open
to the defendant in this action. The assessment and collection of
taxes is regulated by statute. The assessors are public officers,
and, while their duties are of a quasi judicial nature, their juris-
diction is limited, based sometimes upon the residence of the person
assessed, or of some other person interested in the property, and
sometimes upon the situation of the property. Without reciting in
detail the statutes, it is sufficient to say that they provide that each
person may bring in a sworn list of the personal property for which
he in any capacity should be taxed, and this list is to be received
by the assessors as true, except as to valuation, unless he, being
required thereto by the assessors, refuses to answer on oath all nec-
essary inquiries as to the nature and amount of his property. In
case a person does not bring in a list, the assessors shall ascertain, as
nearly as possible, his taxable property, and "make an estimate
thereof at its just value, according to their best information and be-
lief," and "such estimate shall be conclusive,” except in certain
cases not here material. Pub. St. C. 11, $$ 38–42. Any person ag-
grieved by an assessment may apply for an abatenient to the assessors,
and, by appeal from their decision,, to the county commissioners or
superior court, and on questions of law may reach this court; but
no person shall have an abatement unless he files a list, as above pro-
vided. Id. $$ 69-72; St. 1890, c. 127.
This plain, adequate, and complete remedy for the correction of
errors, whether of law or fact, is the only one provided by our stat-
utes; and when the assessors are acting within their jurisdiction,
it must be regarded as exclusive, in accordance with the well-known
19 Only a portion of the opinion of Hammond, J., is printed.
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
573
rule that "when a new right is created by statute, which at the same
time provides a remedy for any infringement of it, that remedy
must be pursued." Osborn v. Danvers, 6 Pick. 98, 99.
But when the assessors are acting outside their jurisdiction, their
acts are absolutely void. Where, for instance, the tax ordered is
illegal because for a purpose not authorized by law, the assessment is
void. The assessors have no jurisdiction. Bangs v. Snow, 1 Mass.
181; Stetson v. Kempton, 13 Mass. 272, " Am. Dec. 145.
So where the assessment is upon a nonresident for personal prop-
erty, claimed, by reason of its location in the town where the assess-
ment is made, to be taxable there, if it appears that the nonresident
had no personal property assessable there, the tax is wholly void, even
if he had taxable real estate there. The reason is that, the person
assessed not being resident in the town where the assessment is made,
and so not within the jurisdiction of the assessors, their right to
assess him, so far as respects personal property, depends upon whether
he has assessable personal property in the town. Unless he has such
property there, their acts are void for want of jurisdiction.
Preston v. City of Boston, 12 Pick. 7, a leading case, affords a good
illustration of the application of this principle. The plaintiff being
domiciled in Medford, and having taxable personal estate, but having
in Boston only real estate, was taxed in the latter place for both real
and personal estate. He paid the taxes, and in an action to recover
back the money it was held that, while the real estate tax was valid the
personal estate tax was invalid, and he recovered that back. The ground
of the decision as to the personal property was that the plaintiff was
not an inhabitant of Boston, and so not liable to be taxed there at
all on his personal property. As to that the assessors had no jurisdic-
tion. In giving the opinion, Shaw, C. J., said: “One not liable-not
domiciled-is not within the jurisdiction of the assessors any more
than a stranger from another state who should happen to be lodging
at a hotel when the tax was assessed. The whole proceeding, there-
fore, in regard to him was without authority ab initio." See, also,
Sumner v. Dorchester Parish, 4 Pick. 361; Inglee v. Bosworth, 5
Pick, 498, 16 Am. Dec. 419.
Where, however, there is personal property of a nonresident which
is taxable in the town where it is situated, the assessors of that
town have jurisdiction, and consequently the only remedy of the
person aggrieved is by abatement. Little v. Greenleaf, 7 Mass, 236;
Gray v. Kettell, 12 Mass. 161. Again, where a corporation owns real
and personal estate, and is taxable for the real, and not for the per-
sonal, estate, a tax upon the personal estate is absolutely void. Man-
ufacturing Co. v. Amesbury, 17 Mass. 461; Boston Water Power Co.
v. City of Boston, 9 Metc. 199; Salem Iron Co. v. Inhabitants of
Danvers, 10 Mass. 514—the ground of the decision in these cases
being that the corporation is not an inhabitant of the town for pur-
poses of taxation. And the same principle is applied where the
574
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
assessors undertake to assess a tax in excess of what is called for or
is allowed by law. Joyner v. Inhabitants of Egremont School Dist.
No. 3, 3 Cush. 567; Cone v. Forrest, 126 Mass. 98.
These and similar cases all proceed upon the principle that an
assessment made by assessors who have no jurisdiction is not the
assessment authorized by statute. It is no assessment at all, and is
absolutely void. As it is not the statutory proceeding, the statutory
remedy is not exclusive.
Such an assessment, therefore, can be attacked collaterally in an
action of tort against the assessors, where such an action will lie,
or in an action against the town to recover back the money paid, or
in defense to an action by the collector. These general remedies
are not for those who are aggrieved by assessors acting within their
jurisdiction, but are allowable to redress wrongs inflicted by persons
who pretend to be assessors, but who are not such, because acting
without jurisdiction.
Where, however, the tax is for a legal purpose, and the assessors
have jurisdiction, whether it is based upon the fact that the person
assessed be an inliabitant of the town where the assessment is made, or
upon the situation of the property, or any other jurisdictional fact
shown to exist, and they proceed essentially in accordance with the
statutes, their decision as to the nature and amount of the taxable
property of a person who lias not brought in a list is valid. It can-
not be attacked in any collateral proceeding, but must stand until
changed in a proceeding under the statute for abatement. There are
sound and obvious reasons for this rule, which are set forth at some
length in Lincoln v. City of Worcester, 8 Cush. 55, 65, 66 [ante, p.
3591
Among the numerous cases where the doctrines above stated have
been applied by this court, see, in addition to those already cited, Bates
v. City of Boston, 5 Cush. 93; Howe v. Same, 7 Cush. 273; Bourne
v. Same, 2 Gray, 494; Ingram v. Cowles, 150 Mass. 155, 23 N. E.
48; Carleton v. Ashburnham, 102 Mass. 348.
The defendant in the case at bar was an inhabitant of Lowell, and
he had taxable personal property there. The only list he brought
to the assessors was that of February 24, 1890, several months after
the warrant had been committed to the collector, and even that pur-
ported to relate only to the property held by him as trustee. Being an
inhabitant of the city, and having taxable personal property there, he
was within the jurisdiction of the assessors. While the tax was in
part against him as an individual, and in part as trustee, still it was
all a personal tax. If valid, the collector could sue, distrain, or arrest,
as well for the one part as for the other.
The assessors called for a sworn list of taxable personal property.
Such a list should contain all such property held by a person either
as an individual or in a representative capacity. In the absence of
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
575
such a list from the defendant, the assessors proceeded to consider
his case.' They had before them not only the question whether he
was taxable for any personal property held by him as an individual,
but also whether he was taxable for any such property held by
him in a representative capacity. The whole case was before them,
and it was their duty to investigate and decide it. That duty they
performed, and they decided that he had taxable personal property, not
only as an individual, but as a trustee, and they made an estimate
thereof. The jury liave found that in performing this work they
“ascertained, as nearly as possible, the particulars of the personal
estate held by the defendant as trustee, for the purpose of making this
assessment,” and that, “having obtained these particulars, they esti-
mated such property at its just value, according to their best informa-
tion and belief."
We are of opinion that the evidence fully justifies the finding.
Indeed, the assessors seem to have been impressed with the importance
and magnitude of the question, and to have made unusual efforts to
get at the facts, both as to the nature and value of the property. It is
true that a tax upon real estate is separate and distinct from that on
personal estate (Preston v. City of Boston, ubi supra), but we do not
think the statutes intended that there should be a division of the
tax on personal estate, so far as concerns the remedy for a person
aggrieved.
We are not unmindful of the case of Dorr v. City of Boston, 6
Gray, 131. In that case it appeared that the plaintiff was a woman,
and had no taxable property in this state. As to whether the case
of Preston v. City of Boston, ubi supra, was rightly interpreted in that
case, see Lincoln v. City of Worcester, 8 Cush, 62, and Bates v. City
of Boston, 5 Cush. 97.
So far, therefore, as respects the nature and value of the property,
and his relation to it, the grievance of the plaintiff, if any, is one of
overvaluation, and his only remedy is by the statutory proceeding for
abatement. He cannot avail himself of this portion of his defense
in this action. Pierce v. Eddy, 152 Mass. 594, 596, 26 N. E. 99. * **
The defendant's brief contains an elaborate argument in support of
the proposition that our statutes relating to the assessment of taxes
are unconstitutional, because they do not give the party assessed an
opportunity to be heard. But he does have full opportunity to be
heard before the assessing board, if he desires it, before the demand
becomes conclusively established against him, and that is enough.
Cooley, Tax'n, pp. 361, 363, 364, and cases cited.20
There was ample evidence of a demand upon which to base in-
terest, and, in the absence of anything to the contrary in the brief of
the defendant, we consider the exception on that point waived.
20 On this point, see Glidden V. Harrington, 189 U. S. 255, 23 Sup. Ct.
574, 47 L. Ed. 798 (1903).
576
RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2
Without going over the exceptions further in detail, it is sufficient
to say that we see no error of law made by the presiding judge at
the trial.
Exceptions overruled.21
21 See Weber v. Baird, 208 Ill. 209, 70 N. E. 231 (1904): "We think a
court of equity may revise the decision of the board of review assessing
property to a taxpayer as having been owned by him and subject to taxa-
tion and omitted from the schedule prepared by him. The manner in which
the board of review conducts its investigation is such that the taxpayer is
not advised of the proofs heard or information obtained by the board rela-
tive to the ownership by him of property said to have been omitted from
the schedule, nor has he an opportunity to contest the truth of such proof
or such information before the board. He cannot appeal from any decision
of the board, other than from a decision that certain property is not .exempt
from assessment for taxation. i Dutton v. Board of Review, 188 Ill. 386,
58 N. E. 953. Equity will therefore afford a remedy, and hear and deter-
mine whether the board correctly decided that the taxpayer was the owner
of the property which the board assessed against him as having been omit-
ted by him from his schedule. The inquiry in such an equitable proceed-
ing is, what property did the board decide the taxpayer owned and had omit-
ted from his schedule, and did he own that property? What the board de-
cided is to be determined by the record made by the board of its decision.
A taxpayer seeking the aid of equity must therefore show the record made
by the board, and then he will be heard to show that he did not own the
property there specified in the record. If, in fact, the board did not enter
its decision on the assessment books, or if its decision did not show on such
books the kind and class of property said to have been omitted, such fail-
ure would vitiate the assessment, unless in some way cured. But a tax-
payer cannot ignore the record made by the board of review, which, if law-
fully rendered, would show specifically the property or class of property
which the board decided the taxpayer owned and had not listed for as-
sessment, and be allowed to overturn the decision by seeking, in a general
way, to deny that he had any other property than that he had listed."
See, also, Vittum v. People, 183 Ill. 154, 55 N. E. 089 (1899), assessing
too high a rate.
Section 15 of the tariff act of June 10, 1890, allows an appeal from the
decision of the Board of General Appraisers, as to the construction of the
law and the facts respecting the classification of such merchandise and the
rate of duty imposed thereon under such classification, to the Circuit Court,
for a review of the questions of law and fact involved in such decision.
However, findings of the appraisers upon conflicting evidence are treated
much like findings of a jury, and are set aside only if clearly against the
evidence. In re Kursheedt Mfg. Co. (C. C.) 49 Fed. 633 (1892); In re
White (C. C.) 53 Fed. 787 (1893). Method of proof cannot be controlled
by treasury regulations. Pascal v. Sullivan (C. C.) 21 Fed. 496 (1881).
* Compare the principal case Harrington v. Glidden, where there was an ap-
peal from the action of the assessors.
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
577
SECTION 174.--SAME-QUESTIONS OF VALUE
SPENCER & GARDNER v. PEOPLE.
(Supreme Court of Illinois, 1873. 69 Ill. 510.)
Appeal from the circuit court of Will county.
This was an application by the collector of Will county, to the
county court of that county, for judgment against certain lands for
taxes due thereon, for the year 1871, and costs. The case was taken
by appeal to the circuit court.
The landowners filed the following objections to the rendition of
judgment: First, that the assessment was not in compliance with
the Constitution, which provides that taxes must be so levied as to
be uniform, and in proportion to the value of the property upon
which they operate; second, that the property was not assessed at
its true value, being assessed several times higher than property of
equal value adjoining the same.
The defendants below offered to prove the truth of their objec-
tions, which the court refused to allow, on the ground that the de-
fendants had waived the objections by not making them before the
proper boards of review, and rendered judgment against the lands
and lots for the taxes assessed thereon, and the defendants appealed.
Mr. Justice SHELDON delivered the opinion of the court.
The question presented by this record is whether, upon an appli-
cation for judgment against real estate for delinquent taxes, the ob-
jection may be made that there was too high, a valuation placed upon
the land by the assessor, in making the assessment.
The Constitution provides that the General Assembly shall provide
such revenue as may be needful, by levying a tax by valuation, so
that every person and corporation shall pay a tax in proportion to
the value of his, her or its property—such value to be ascertained
by some person or persons, to be elected or appointed in such man-
ner as the General Assembly shall direct, and not otherwise.
The provision of the Constitution has respect to the laws which
should be passed by the Legislature for the imposition of taxes, and
not to the practical working of the laws. The framers of the Con-
stitution could not have contemplated any such consequence as that
a tax levy should be void, in case an assessor should happen to omit
to assess any taxable property, or should make an incorrect valua-
tion of any property, whereby would be produced the result that
every person would not actually pay a tax in proportion to the value
of his property. There is no objection made that the revenue law
is not framed in accordance with the constitutional principle.
FR.ADM. LAW—37
+
578
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
The assessor is the officer who has been provided by the Legis-
lature for fixing the valuation of property for the purpose of tax-
ation.
No appeal to any court is provided from the assessor's judgment
in fixing the value of property for taxation,22 nor has any express
authority been conferred upon a court to revise such valuation, or
to correct an assessment, or order a new one, or to make a rebate
of any tax.
And we are of opinion that the power does not belong to any court
to revise the assessment made by an assessor, and change or set
aside any valuation of property made by him, where his judgment
has been honestly exercised, and upon a right basis. To do so would
seem to be to arrogate the power of ascertaining the value of prop-
erty for taxation, which ascertainment of value, the Constitution de-
clares, shall be by some person or persons designated by the Gen-
eral Assembly, and not otherwise.
The Legislature has provided a special board for the review of
assessments in the matter of valuation, as follows: The assessor,
town clerk and supervisor shall attend at the time and place speci-
fied in the notice (before directed to be given), and on the applica-
tion of any person conceiving himself aggrieved they shall review
the assessment; and when the person so objecting thereto shall
make an affidavit that the value of his personal estate does not ex-
ceed a certain sum specified in such affidavit, the assessor shall re-
duce the assessment to the sum specified in such affidavit; and if
he, or any other one, objects to the valuation put upon any of their
real estate, the board shall liear the objections, and may reduce the
same if a majority of the board think it advisable, and in such case
the assessor shall correct his list. Laws 1861, p. 242.
Laws 1861, p. 242. This was the
law in force at the time this assessment was made, and the appel-
lant should have applied to that board for the correction of any
overvaluation of his property.
An omission to assess some other persons liable to taxation, or to
assess a portion of the taxable property of others, would be an ob-
jection of a like character with the one here made, as the effect
would be the same, though it might be less in degree, as that of an
overvaluation, to wit, to cause the complaining taxpayer to bear an
undue proportion of the burthen of taxation. Yet it has been held
that such an omission would not affect the validity of a tax. Mer-
ritt et al. v. Farris et al., 22 Ill. 303; Dunham et al. v. City of Chi-
cago, 55 Ill. 357.
In the case of Albany & West Stockbridge R. Co. v. Town of
Canaan, 16 Barb. (N. Y.) 244, it was held that the action of as-
sessors, so long as they confine themselves within the statute rule,
22 See, as to earlier law, Bureau County v. C. B. & Q. R. CO., 44 Ill. 229
(1867).
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
579
is conclusive, however grossly they may err in estimating the amount,
and that the tax based upon the assessment is like a judicial sentence,
and can be assailed only for fraud or want of jurisdiction. So it
was held, in Weaver v. Devendorff, 3 Denio (N. Y.) 117, that in
fixing the value of taxable property by an assessor, the power ex-
ercised is, in its nature, purely judicial.
In City of Chicago v. Burtice et al., 24 Ill. 489, it was said that
the court would inquire whether the commissioners for assessment
fraudulently valued the property above its true value, but that if
they honestly estimated property too high or too low, the court
would not disturb the assessment; and see, to the like effect, Elliott
v. City of Chicago, 48 Ill. 293, and Jenks et al. v. City of Chicago,
48 Ill. 296. The case of Creote et al. v. City of Chicago, 56 Ill.
423, which is relied on by appellant's counsel, we do not regard as
materially variant from the view here expressed. It was only held
there that the defense of fraud in the making of the assessment
might be made, as also that the assessment was made on a wrong
basis, in violation of the statute and the Constitution.
In the present case there was no suggestion of fraud, or that
the assessment was made on a wrong basis. The defense against
the entry of judgment, as offered, we must regard as simply one of
an excess of valuation, made in the honest exercise of the judgment
of the assessor, and we are of opinion it was rightly excluded by the
icourt.
The judgment is affirmed.
Judgment affirmed.23
23 Accord : New Orleans V. Railroad Co., 37 La. Ann. 45 (1885); Rock-
land v. Rockland Water Co., 82 Me. 188, 19 Atl. 103 (1889); State v. Sad-
ler, 21 Nev. 13, 23 Pac. 799 (1890); Stanley y. Supervisors of Albany, 121
U. S. 535, 7 Sup. Ct. 1234, 30 L. Ed. 1000 (1887); Shumway V. Baker Co.,
3 Or. 246 (1870).
City of Chicago V. Burtice, 24. Ill. 489, 492 (1860): “It is nothing less
thau a legal fraud if the commissioners ix a valuation upon property above
its real value, for the purpose of evading the provisions of the law, which
forbids them to assess property more than three per cent. in any one year.
It is true that the court ought not willingly to ascribe to the commissioners
such motives; but when an outrageous valuation is shown, where, without
it, the amount desired could not be assessed within the three per cent., it
would seem to leave the court at liberty to draw n10 other conclusion.
We hold, without hesitation, that this is a proper subject of in-
quiry, and, when established, constitutes a good defense. As no mathemati-
cal rule can be applied to determine, with certainty, the value of real es-
tate, and especially unimproved city property, it must be expected that the
judgments of men will differ, and, if commissioners honestly estimate prop-
erty too high or too low, the court will not disturb it; but when an assess-
ment is made so wide of the true value, as established by witnesses, as to
raise the presumption that it was overestimated from design, and especially
when the court can see the motives prompting to such design, it will not
and ought not to hesitate so to find. The court did not err in admitting
proof of the value of the property.”
See, also, Burton Stock Car Co. v. Traeger, 187 Ill. 9, 58 N. D. 418 (1900);
State Board of Equalization v. People, 191 Ill. 528, 61 N. E. 339, 58 L. R. A.
513 (1901), valuation too low.
*
580
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
HILTON v. MERRITT.
(Supreme Court of United States, 1884. 110 U. S. 97, 3 Sup. Ct. 548,
28 L. Ed. 83.)
*
*
*
WOODS, J.24
The question presented by the exception
of plaintiffs is whether the valuation of merchandise made by the
customs officers under the statutes of the United States for the pur-
pose of levying duties thereon is, in the absence of fraud on the
part of the officers, conclusive on the importer, or is such valuation
reviewable in an action at law brought by the importer to recover
back duties paid under protest? *
The provisions of the statute law show with wliat care Congress
lias provided for the fair appraisal of imported merchandise subject
to duty, and they show also the intention of Congress to make the
appraisal final and conclusive. When the value of the merchandise
is ascertained by the officers appointed by law, and the statutory pro-
visions for appeal have been exhausted, the statute declares that
the "appraisement thus determined shall be final and deemed to be the
true value, and the duties shall be levied thereon accordingly.” This
language would seem to leave no room for doubt or construction.
The contention of the appellants is that after the appraisal of mer-
chandise has been made by the assistant appraiser, and has been
reviewed by the general appraiser, and a protest has been entered
against his action by the importer, and the collector has appointed
a special tribunal, consisting of a general and merchant appraiser,
to fix the value, and they have reported each a different valuation to
the collector, who has decided between them and fixed the valua-
tion upon which the duties were to be laid, that in every such case
the importer is entitled to contest still further the appraisement and
have it reviewed by a jury in an action at law to recover back the
duties paid.
After Congress has declared that the appraisement of the customs
officers should be final for the purpose of levying duties, the right
of the importer to take the verdict of a jury upon the correctness
of the appraisement should be declared in clear and explicit terms.
So far from this being the case, we do not find that Congress has
given the right at all. If, in every suit brought to recover duties
paid under protest, the jury were allowed to review the appraise-
ment made by the customs officers, the result would be great un-
certainty and inequality in the collection of duties on imports. It is
quite possible that no two juries would agree upon the value of
different invoices of the same goods. The legislation of Congress,
to which we have referred, was designed, as it appears to us, to
exclude any such method of ascertaining the dutiable value of goods.
24 Only a portion of the opinion of Woods, J., is printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
581
This court, in referring to the general policy of the laws for the
collection of duties, said in Bartlett v. Kane, 16 How. 263, 14 L. Ed.
931: “The interposition of the courts in the appraisement of im-
portations would involve the collection of the revenue in inextrica-
ble confusion." And, referring to section 3 of the act of March 3,
1851, which is reproduced in section 2930, Revised Statutes, this
court declared, in Belcher v. Linn, 24 How. 508, 16 L. Ed. 754, that,
in the absence of fraud, the decision of the customs officers "is final
and conclusive, and their appraisement, in contemplation of law, be-
comes, for the purpose of calculating and assessing the duties due
to the United States, the true dutiable value of the importation.”
To the same effect, see Tappan v. United States, 2 Mason, 393, Fed.
Cas. No. 13,749, and Bailey v. Goodrich, 2 Cliff. 597, Fed. Cas. No.
1735.
The appellants contend, however, that the right to review the ap-
praisement of the customs officers by a jury trial is given to the im-
porter by sections 2931 and 3011 of the Revised Statutes. The first
of these sections provides that on the entry of any merchandise the
decision of the collector as to the rate and amount of duties shall be
final and conclusive, unless the importer shall, within two days after
the ascertainment and liquidation of the proper officers of the cus-
toms, give notice in writing to the collector on each entry, if dis-
satisfied with his decision, setting forth distinctly and specifically
the ground of his objection thereto, and shall within thirty days
after such ascertainment and liquidation appeal therefrom to the Sec-
retary of the Treasury, and the decision of the Secretary in such ap-
peal shall be final and conclusive, and such merchandise shall be lia-
ble to duty accordingly, unless suit shall be brought within ninety
days after such decision of the Secretary of the Treasury. Section
3011 provides that any person who shall have made payment under
protest of any money as duties, when such amount of duties was
not, or was not wholly, authorized by law, may maintain an action,
which shall be triable by jury, to ascertain the validity of such de-
mand and payment of duties, and to recover back any excess so
paid; but no recovery shall be allowed in such action unless a protest
and appeal shall have been taken as prescribed in section 2931.
The argument is that by these sections the appraisement which
had been declared final by section 2930 is opened for review by a
jury trial. Such is not, in our opinion, a fair construction of this
legislation. Considering the acts of Congress as establishing a sys-
tem, and giving force to all the sections, its plain and obvious mean-
ing is that the appraisement of the customs officers shall be final,
but all other questions relating to the rate and amount of duties
may, after the importer has taken the prescribed steps, be reviewed
in an action at law to recover duties unlawfully exacted. The rate
and amount of duties depend on the classification of the imported
merchandise; that is to say, on what schedule it belongs to. Ques-
582
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
tions frequently arise whether an enumerated article belongs to one
section or another, and section 2499 of the Revised Statutes provides
.that there shall be levied on every nonenumerated article which bears
a similitude either in material, quality, texture, or the use to which
it may be applied to any enumerated article chargeable with duty, the
same rate of duty which is levied and charged on the enumerated
article which it most resembles in any of the particulars before men-
tioned. In determining the rate and amount of duties, the value of
the merchandise is one factor; the question what schedule it prop-
erly falls under is another.
Congress has said that the valuation of the customs officers shall
be final, but there is still a field left for the operation of the sections
on which the plaintiffs in error rely. Questions relating to the clas-
sification of imports, and consequently to the rate and amount of duty,
are open to review in an action at law. This construction gives ef-
fect to both provisions of the law. If we yield to the contention and
construction of plaintiffs in error, we must strike from the statute
the clause which renders the valuation of dutiable merchandise final.
We are of opinion, therefore, that the valuation made by the cus-
toms officers was not open to question in an action at law as long
as the officers acted without fraud and within the power confer-
red on them by the statute. The evidence offered by the plaintiffs,
and ruled out by the court, tended only to show. carelessness or ir-
regularity in the discharge of their duties by the customs officers,
but not that they were assuming powers not conferred by the stat-
ute, and the questions which the plaintiffs proposed to subunit to the
jury were, in the view we take of the statute, immaterial and ir-
relevant.
*
STANLEY V. ALBANY COUNTY SUP'RS.
(Supreme Court of United States, 1887. 121 U. S. 535, 7 Sup. Ct. 1234,
30 L. Ed. 1000.)
*
FIELD, J.25
In nearly all the states, probably in all of
of them, provision is made by law for the correction of errors and
irregularities of assessors in the assessment of property for the pur-
poses of taxation. This is generally through boards of revision or
equalization, as they often are termed, with sometimes a right of
appeal from their decision to the courts of law. They are estab-
lished to carry into effect the general rule of equality and uniformity
of taxation required by constitutional or statutory provisions. Abso-
lute equality and uniformity are seldom, if ever, attainable. The di-
versity of human judgments, and the uncertainty attending all human
evidence, preclude the possibility of this attainment. Intelligent men
25 Only a portion of the opinion of Field, J., is printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
583
differ as to the value of even the most common objects before them
-of animals, houses, and lands in constant use. The most that can
be expected from wise legislation is an approximation to this desira-
ble end; and the requirement of equality and uniformity found in
the Constitutions of some states is complied with when designed and
manifest departures from the rule are avoided.
To these boards of revision, by whatever name they may be called,
the citizen must apply for relief against excessive and irregular tax-
ation, where the assessing officers had jurisdiction to assess the prop-
erty. Their action is judicial in its character. They pass judgment
on the value of the property upon personal examination and evidence
respecting it. Their action being judicial, their judgments in cases
within their jurisdiction are not open to collateral attack. If not
corrected by some of the modes pointed out by statute, they are
conclusive, whatever errors may have been committed in the assess-
ment. As said in one of the cases cited, the money collected on such
assessment cannot be recovered back in an action at law, any more
than money collected on an erroneous judgment of a court of com-
petent jurisdiction before it is reversed.
When the overvaluation of property has arisen from the adoption
of a rule of appraisement which conflicts with a constitutional or
statutory direction, and operates unequally not merely on a single in-
dividual, but on a large class of individuals or corporations, a party
aggrieved may resort to a court of equity to restrain the exaction of
the excess, upon payment or tender of what is admitted to be due.
This was the course pursued and approved in Cummings v. National
Bank, 101 U. S. 153, 25 L. Ed. 903.
TAYLOR et al. v. LOUISVILLE & N. R. CO.
88 Fed.
(Circuit Court of Appeals of United States, Sixth Circuit. 1898.
350, 31 C. C. 1. 537.)
Bill in equity against Taylor, Morgan, and Craig, who constitute
the board of equalization of the state of Tennessee, to enjoin them
from certifying in accordance with the act of the Legislature of
Tennessee passed April 5, 1897, a tax valuation upon complainant's
railroad in Tennessee, to be apportioned by the State Comptroller
to the thirty-five counties, cities, and towns in which the road lies.
TAFT, Circuit Judge. 2 6 * The next objection to the as-
sessment of the defendants, and the most serious, is that they have
assessed the railroad property of the state, including that of com-
plainant, at its real value, whereas all other property of the state is
habitually and intentionally assessed by the assessing officers, who
**
20 Only a portion of the opinion is printed.
584
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
are not the defendants, at not exceeding 75 per cent. of its real or
correct value. We think it clear, from the provisions of the rail-
road assessment act of 1897, that neither board thereby created is
charged with any duty to equalize the taxable value of real estate
with that of railroad property. The board of equalization under the
act of 1897 is made up of the same state officers who composed the
state board of examiners under the prior act, and they were charged
with the duty of revising the assessment of railroads made by the
board of assessors and equalizers created by the act of 1895; but
they had no revisory duty connected with that board's equalization
of real estate throughout the state. Hence when, in 1897, the board
of assessors and equalizers was abolished, the equalization of real
estate values was abolished. The continuation of the state board
of examiners under the new name of the "Board of Equalization"
could have no effect to continue in force provisions of law as to state
equalization of values of real estate, because that board never had
any duty connected with the assessment of real estate at all. It is
also clear that the act of 1897 commands the two boards created, by
its terms, to fix the correct value of the railroad and other property
which they assess. This means the real value of the property, and it
is conceded that the laws for the assessment of real and personal
property impose on the assessing officers the duty of assessing it
at the same value.
The contention for the complainant is that the undervaluation of
real and personal property is intentional and systematic throughout
the state, and is in accordance with an immemorial and well-recog-
nized custom; that, combined with the assessment at full value of all
railroad property, the undervaluation of all other property makes
a system of taxation operating to impose upon complainant, and all
others holding the same class of property, a grossly unjust share of
the cost of the state, county, and city governments; that this is in
violation of the Constitution of the state of Tennessee, which enjoins
uniformity of taxation, according to value, on all property, and ex-
pressly forbids that one species of property shall be taxed higher
than any other; and that a court of equity, because it is unable to
remedy the glaring injustice done to complainants and others of the
same class, by compelling the assessment on other property to be
raised to its real value, may accomplish the same result by enjoining
the defendants from assessing railroad property at any higher per-
centage than that at which other property in the state is assessed,
although this is a departure from the rule of action prescribed for
them in the statute creating them a taxing board. In considering
the soundness of this contention, we come first to the facts.
We find from the evidence, which is uncontradicted, that generally,
in the state of Tennessee, for a number of years, the assessors and the
board of equalization of each county have intended to assess, and
have assessed, real and personal property at a uniform percentage
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
585
less than its real value; that this percentage is not uniform between
the counties, but that it is not substantially less than 25 per cent. in
any of them. We base our conclusion on 150 affidavits contained in
the record. They do not cover specifically more than 35 counties out
of the 96 counties in the state; but when they are supplemented by
the evidence of the members of the state board of equalizers, who
officially investigated the manner of making assessments in each coun-
ty in the state by actual visits and by correspondence, by examining
the assessing officers, and by a comparison of tax values with actual
sales, we have no difficulty in finding the fact to be as above stated.
The affidavits from different counties are many of them the sworn
statements of the assessors and county equalizers themselves, who
made the assessments, and leave not the slightest doubt that in each
county the undervaluation was systematic, was according to a uni-
form and well-understood rule of reduction, and was for the pur-
pose of reducing the proportionate burden of the expenses of the
state government which the particular county would have to bear.
These expenses are, in effect, apportioned to each county in the pro-
portion which its total tax valuation bears to the total tax valuation
of all the property in the state. The motive for undervaluation is
manifest, and the variation in the percentage, as between the coun-
ties, is dependent only on the varying extremes to which taxing of-
ficers of different counties are willing to go in departing from the
statutory rule to reduce the state burden on their respective counties.
We further find that in the year 1897, which is one of the years in
respect to which relief is asked in the bill, the assessment of real
estate which was not affected by the repeal of the act of 1895 was
equalized by the state board of assessors and equalizers, under that
act, at a basis of 75 per cent. of its real value; that this was done in-
tentionally, and was adopted as rule of action by that board. This
is established by the evidence of two of the three members of the
board, and of the secretary of the board; and although there is a dis-
crepancy in their statements, as to whether the basis fixed was 70 or
75 per cent. (two of them saying that it was 70, and the other 75), the
fact that they deliberately fixed a percentage of real value as their
basis of assessment is admitted by all of them.
We are relieved from considering the weight of the evidence as
to the exact basis by the averment of the bill, which fixes it at 15
per cent. The assessed value of real and personal property, except
railroads and telegraph lines, in Tennessee, for the year 1897, was,
in round numbers, $312,000,000. The value of railroads and tele-
graph lines, as assessed by defendants, was $63,000,000-an increase
of the assessed value of the year before of $25,000,000. This makes
a total tax value of $375,000,000, and imposes on the railroads 63 / 375,
or about 1/6 of the entire burden of the state, county, and municipal
governments. If the assessment of the real and personal property
were increased to actual value, it would be $416,000,000, and the
586
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
share of the railroads in paying governmental expenses would be a
little less than 1/8 of the whole. The existence of this glaring in-
equality no evidence has been introduced to contradict. The defend-
ants have been content to deny it in a general way in their answer,
and have adduced no testimony upon the point from any one pro-
fessing to have specific knowledge on the subject.
The Constitution of Tennessee, adopted in 1870 (article 2, § 28)
provides that: “All property-real, personal and mixed-shall be
taxed.
All property shall be taxed according to its value,
that value to be ascertained in such manner as the Legislature shall di-
rect, so that taxes shall be equal and uniform throughout the state.
No one species of property from which a tax may be collected shall be
taxed higher than any other species of property of the same value.”
*
*
There has been much discussion at the bar upon the point whether
the Constitution of 1870 requires that all property shall be assessed
at its full value, or whether it would satisfy the Constitution if the
taxing laws required all property to be assessed for taxation at a
uniform percentage—say 75 per cent. of its real value. Language
has been quoted from the opinions of judges of the Supreme Court of
Tennessee supporting the former view, but they were obiter, and
wholly unnecessary to the decision of the cases before the court.
Mayor, etc., of Chattanooga v. Nashville, C. & St. L. R. Co., 7 Lea,
569; Brown v. Greer, 3 Head, 696. Speaking for Judge LURTON
and myself, we should be inclined to hold that any legislative system
of tax assessment of property based on a uniform percentage of its
value would be “according to its value," and would be a compliance
with the constitutional mandate. This is, we think, in accordance
with the latest expression from the Supreme Court of Tennessee in
the Reelfoot Lake Levee District Case, already quoted (97 Tenn.
151, 36 S. W. 1041, 34 L. R. A. 725]. Judge SEVERENS doubts, and
the difference is not material, for we are unanimously of opinion that
the question is not controlling in this case. The Constitution express-
ly gives the Legislature the power to prescribe that all property shall
be assessed at its true value, and the Legislature has done so. Such
a legislative command is as binding on those whom it affects as if
it were in the Constitution, because passed in pursuance of the funda-
mental law; and counsel for complainant do not avoid the difficulty
which confronts them in the case, to wit, that they are seeking to
enjoin defendants from doing that which the letter of the law re-
quires the defendants to do, by showing that the requirement is in
a constitutionally enacted statute, rather than in the Constitution it-
self.
The sole and manifest purpose of the Constitution was to secure
uniformity and equality of burden upon all the property in the state.
As a means of doing so (conceding that defendant's construction
is the correct one), it provided that the assessment should be ac-
Ch.9)
587
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
cording to its true value. It emphasized the object of the section by
expressly providing that no species of property should be taxed high-
er than any other species. We have before us a case in which the
complaining taxpayer, and other taxpayers owning the same species
of property, are taxed at a higher rate than the owners of other spe-
cies of property. This does not come about by legislative discrim-
ination, but by the intentional and systematic disregard of the law
by those charged with the duty of assessing all other species of prop-
erty than that owned by complainant and its fellows of the same
class. This is a flagrant violation of the clause of the Constitution
forbidding discrimination in taxation between different species of
property. That clause is self-executing. Reelfoot Lake Levee Dist.
v. Dawson, 97 Tenn. 160, 36 S. W. 1043, 34 L. R. A. 1725. How is
it to be remedied? It is said on behalf of the defendants that the
only method consistent with the Constitution is by raising the as-
sessments of the real and personal property. This is no remedy at
all. It has been suggested (but we cannot regard the suggestion as
a serious one) that the railroad companies of the state should go
before the taxing authorities of each county, and, after notifying
each taxpayer, attempt to secure an increase in the total tax assess-
ment of the real and personal property of the state from $312,000,000
to $416,000,000. The absolute futility of such a course, the enor-
mous expense, and the length of time necessary in attempting to
follow it, need no comment.
The question presented is, then, whether, when the sole object
of an article of the Constitution is being flagrantly defeated, to the
gross pecuniary injury of a class of litigants, and one of them ap-
peals to a court of equity for relief, it must be withheld because the
only mode of granting it will involve an apparent departure from
the method marked out by the Constitution and the law for attain-
ing its sole object. We say "apparent" departure from the consti-
tutional method, because that instrument contemplated a system in
which all property should be assessed at its real value. It did not
intend that a large part should be assessed at 75 per cent., and a
smaller part at 100 per cent. The method of assessing one species
of property cannot be truly said to be constitutional, without hav-
ing regard to that pursued with other species; for the essence of
the constitutional requirement is uniformity, and uniformity cannot
be affirmed to exist without a due regard to the methods of assessing
all species. Therefore, to enjoin the enforcement of the prescribed
method of assessment as to one species of property, when there is a
departure from it as to all others, if the injunction secures uniformity
as to all, is not so great a violation of the method really prescribed
as that involved in a continuance of the existing conditions, and the
denial of relief to the injured taxpayer. The court is placed in a
dilemma, from which it can only escape by taking that path which,
while it involves a nominal departure from the letter of the law, does
588
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
injury to no one, and secures that uniformity of tax burden which
was the sole end of the Constitution. To hold otherwise is to make
the restrictions of the Constitution instruments for defeating the
very purpose they were intended to subserve. It is to stick in the
bark, and to be blind to the substance of things. It is to sacrifice jus-
tice to its incident. The same dilemma has been presented to other
courts. They have not always taken the same horn. There is a
conflict of authority, but we are glad to say that the adjudications
of that court whose decision we must follow support the views we
have above expressed. Before examining the cases in the Supreme
Court of the United States, let us refer to the decisions of some of
the state courts upon the question:
In Randell v. City of Bridgeport, 63 Conn. 321, 28 Atl. 523, the
case came into court on a direct appeal from the action of a board
of equalization, called the "Board of Relief of the City of Bridge-
port.” The superior court found as a fact that it had been the uni-
form rule of the board of assessors and the board of relief of that
city to value all property, for the purpose of taxation, at one-half of
its fair market value. The court found tliat the plaintiff's property
was assessed at its full market value as the statute required. The
Supreme Court held that the complainant was entitled to an as-
sessment of one-half the real value of his property, and this in
the face of a mandatory provision of the statute that all property
should be assessed at its true value.
In Cocheco Co. v. Strafford, 51 N. H. 455, the law provided that
the selectmen should appraise all taxable property at its full and true
value in money. The statute further provided that the court should
make such order thereon as justice required. Mr. Justice Doe, upon
this point, in a concurring opinion, said; "Justice requires an equal
rate of taxation of Strafford real estate. If the Strafford real estate of
others was appraised in 1870 at a less rate than its full value, the
real estate of the plaintiffs should be appraised by the commissioners
at the same rate, so that the plaintiffs shall pay their proportion of
tax and no more. The usual rate in farming towns is well under-
stood, and the practice of undervaluation is so universal as to raise
a presumption of fact that it prevails in Strafford. When the com-
missioners have ascertained the fact of the full value of the plain-
tiffs' Strafford real estate on the 1st day of April, 1870, they should
proceed further, and appraise it at its value as compared with the
value at which other Strafford real estate was appraised by the se-
lectmen in 1870. This comparative value is the only question which
the commissioners are appointed to decide, and is a pure question
of fact."
This language was approved in Manchester Mills v. Manchester, 58
N. H. 38, on a petition for the abatement of the real estate tax,
in which the court appointed a committee to find and report,
First, the true value of the plaintiff's estate; and, second, the true
L
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
589
value of real estate of Manchester, other than plaintiff's compared
with its assessed value. The question whether the second point was
a proper subject for inquiry came before the court, and it was held
that it was a proper subject of inquiry, and that the abatement
should proceed on the findings made upon such inquiry.
[The opinion then cites, and quotes from, Ex parte Ft. Smith &
Van Buren Bridge Co., 62 Ark. 461, 36 S. W. 1060. This part of the
opinion is omitted.]
In the case of Board of Sup'rs of Bureau Co. v. Chicago, B. & Q.
R. Co., 44 Ill. 229, the appeal was a direct appeal from the board of
supervisors, which assessed the value of the property of the railroad
company. It appeared that the valuation of property of individuals,
except that of the railroad company ranged from one-fifth to one-
third, while that of the railroad company ranged from one-third to
one-half; and the appellate court decided that the assessment of the
railroad property must be at the same percentage of the real value
as that of individuals. The Constitution of Illinois required the gen-
eral assembly to provide for levying a tax by valuation, so that
every person and corporation shall pay a tax in proportion to the
value of his or her property; such value to be ascertained by some
person or persons to be elected or appointed in such manner as the
general assembly shall direct, and not otherwise. The act to carry
out this section provided that each separate parcel should be val-
lied at its true value in money. The court held that it was the
duty of the supervisors to impose the same percentage of assess-
ment upon the railroad company as had been assessed by the as-
sessors upon the property of individuals.
[The opinion then cites and quotes from Chicago, B. & Q. R. Co. v.
Board of Com'rs of Atchison Co., 54 Kan. 781, 39 Pac. 1039. This
part of the opinion is omitted.]
As has already been said, there are cases in which the other horn
of the dilemma has been taken, the injustice to the complaining class
of taxpayers has been allowed to continue, and the violation of con-
stitutional or statutory uniformity and equality has gone on un-
hindered, in order that the letter of the law may be preserved while
its spirit is flagrantly broken. Wagoner v. Loomis, 37 Ohio St. 571;
Central R. Co. v. State Board of Assessors, 48 N. J. Law, 1, 2 Atl.
1789, 57 Am. Rep. 516. See, also, City of Lowell v. County Com’rs,
152 Mass. 372, 25 N. E. 469.
We are relieved from a further discussion of the question by the
decision of the Supreme Court of the United States in the case of
Cummings v. Bank, 101 U. S. 153, 25 L. Ed. 903. In that case the
assessors of real property, the assessors of personal property, and the
county auditor (who was the assessing officer of the first instance for
bank shares) of the county where the complainant bank was situated
agreed to assess real and personal property at one-third its value, and
money or invested capital at six-tenths its value. This agreement
590
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
was in violation of the statutes under which they were acting, which
required assessments to be at the true value in money.
The state
board of equalization for banks increased the assessment of con-
plainant's bank shares to their full market value. The state board
had no power to equalize bank shares with real or personal prop-
erty, and, in assessing these bank shares at their full value, it was
following the exact course prescribed by statute, and the statute was
passed in accordance with the Constitution of Ohio, which requires
the Legislature to pass laws taxing all property "by uniform rule at
its true value in money.” This action was brought by the complain-
ant bank to enjoin the county treasurer froin collecting the tax on
the assessment against its shares which had been certified down by
the state board of assessors. The Circuit Court of the United States
enjoined the treasurer from collecting tax on a valuation greater
than one-third of the real value of the shares. The effect of this
order was to annul an assessment by the state board of equalization
which was strictly in accordance with the letter of the statute gov-
erning it in the discharge of its duties, and which was equally in
accord with the standard of value for assessment fixed by the Con-
stitution of the state. The decree of the Circuit Court was affirmed
by the Supreme Court on the principle stated by the court as follows:
"When a rule or system of valuation is adopted, by those whose duty
it is to make the assessment, which is designed to operate unequally, and
to violate a fundamental principle of the Constitution, and when the
rule is applied, not solely to one individual, but to a large class of
individuals or corporations, [that] equity may properly interfere to re-
strain the operation of this unconstitutional exercise of power." ***
The justice [Mr. Justice Miller] discussed the facts, to show
that the laws had been unfaithfully administered by those charged
with their execution, and that as the only method provided in the
system by which constitutional uniformity was to be secured, namely,
by taxing all property at its true value in money, though required by
statute, had been departed from by the administrators of the law in
assessing other classes of property than that held by the complainant,
equity might relieve complainant from his unequal burden thus placed
on him by enjoining taxation on more than one-third of the assess-
ment against him, though his property had been only taxed at its
true value. After commenting on the widespread custom or rule in
many states to undervalue real estate, growing out of the effort of
the landowner to produce something like equality of burden with
personal property which escapes taxation by being hidden, the jus-
tice concluded: "But whatever may be its cause, wlien it is recognized
as the source of manifest injustice to a large class of property, around
which the Constitution of the state has thrown the protection of
uniformity of taxation and equality of burden, the rule must be held
void, and the injustice produced under it must be remedied, so far
as the judicial power can give remedy."
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
591
The case before us cannot in any material respect be distinguished
from the Cummings Case. In this case, as in that, the injunction
sought is against the enforcement of an assessment upon complain-
ant's property which was made at the true value of the property,
in accordance with the mandate of the Constitution and statute, by
assessing officers who had not themselves discriminated against com-
plainant's property by undervaluing other species of property, and
who were not themselves guilty of any fraud. In this case, as in
that, the unjust operation of the assessment grows out of the sys-
tematic and intentional undervaluation of other species of property
by assessors who are not responsible for the assessment complained
of. In this case, as in that, the effect of the injunction is to compel
certain assessors of the state to reduce their assessment to the illegal
standard of valuation adopted by different and unfaithful assessors
of other species of property, and is justified by the result that in
this way is secured something like the uniformity which is the sole
purpose of the Constitution. It has been pressed upon us that no
such preconcert of action by the assessing officers, and no such uni-
form rule of undervaluation, have been shown in this case as ap-
peared in the Cummings Case, and that upon these circumstances
the Cummings Case turned. We have already found, froin the evi-
dence, that there is an intentional undervaluation of property in
each county, and that this is uniform as to all real and personal
property, and results from a clear understanding between the as-
sessors and county boards of equalization, who have a cominon mo-
tive for the reduction. More than this, it is clearly shown that the
state board of assessors and equalizers in 1896 intentionally equal-
ized all real estate in the state at 75 per cent. of its true value for
the taxation of the year 1897. Could preconcert be clearer than
this?
It is further said that, before the remedy pursued in the Cummings
Case can become applicable, it must appear that the undervaluation
of one species of property was adopted as a rule of action by the
assessors for the fraudulent purpose of discriminating against the
complaining taxpayer and his class, and that no such case is presented
to this court. Now, it is true that, before equity will relieve in
such a case, it must appear that the assessing officers whose acts
of undervaluation create the unjust burden must intentionally and
habitually violate the law, by assessing property at a less valua-
tion than that which they know to be its true value; but it is not
true that they must be shown affirmatively to intend to injure com-
plainant and his class of taxpayers in so doing. It is true that in
the Cummings Case the unfaithful assessors, or some of them,
did undervalue both real and personal property, and money capital,
in which were included bank shares, at different percentages of their
true value; but the assessment of which complaint was made was
not the work of these assessors at all, but, as here, of a state board
592
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
of equalization. An intentional undervaluation of a large class of
property, when the law enjoins assessment at true value, is neces-
sarily designed to operate unequally upon other classes of property
to be assessed by other taxing tribunals, who, it may be presumed,
will conform to the law. In the case at bar the county assessors
and board of equalization of each county have been actuated in their
violations of the law by the desire to reduce, as far as may be, their
county's share of the state burdens. Their undervaluations of prop-
erty have been uniform as to all property in their county but rail-
roads. They could not but know that such undervaluation must
work an injustice against the property of railroads, if assessed at
its true value by a state board, and taxed for county and state pur-
poses on that basis. In this sense, the rule of undervaluations adopt-
ed in each county is necessarily "designed to operate unequally,'
within the meaning of Mr. Justice Miller in the Cummings Case.
The ratio decidendi of that case is to be gathered from the facts, and
the language of the opinion is to be interpreted in the view of the
facts. The case has been commented on by the Supreme Court in a
number of subsequent cases, but it has never been inodified or over-
ruled.
[The court then cites and quotes from Bank v. Kimball, 103 U.
S. 732, 26 L. Ed. 469, Supervisors v. Stanley, 105 U. S. 305, 26
L. Ed. 1044, Stanley v. Supervisors, 121 U. S. 550, 7 Sup. Ct. 1234,
30 L. Ed. 1000, and Bank v. Perea, 147 U. S. 87, 13 Sup. Ct. 194, 37
L. Ed. 91.]
· We find nothing in these cases which should change our view, al-
ready expressed, of the effect of the Cummings Case. They merely
emphasize the point that equity will not relieve against an assess-
ment merely because it happens to be at a higher rate than that
of other property; that such inequalities, due to mistake, to the
fallibility of human judgment, or to other accidental causes, must
be borne, for the reason that absolute uniformity cannot be obtain-
ed; that, in other words, what may be called "sporadic cases of dis-
crimination” cannot be remedied by the chancellor. He can only
interfere when it is made clear that there is, with respect to certain
species of property, systematic, intentional, and unlawful underval-
uations for taxation by the taxing officers, which necessarily effect
an unjust discrimination against the species of property of which
the complainant is an owner. The reason for the distinction is ob-
vious. The occasional and accidental discriminations are inevitable
in every assessment, and are not likely to continue, because not the
result of an illegal purpose on the part of any one. If equitable in-
terference in such cases could be invoked, the obstruction to the
collection of taxes would be so frequent as to be intolerable. More
than this, an action to enjoin a tax is a collateral attack upon the
judgment of a quasi judicial tribunal; and it cannot be justified ex-
cept on the ground of an obvious violation of law, or something
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
593
equivalent to fraud. It does not lie where the injury complained
of arises only from the erroneous, but honest, judgment of the law-
fully constituted tax tribunal.
The interference by the chancellor in the case at bar and in the Cum-
mings Case rests on something equivalent to fraud in the tribunal im-
posing the tax. The various boards whose united action is by law
intended to effect a uniform assessment on all classes of property are
to be regarded as one tribunal, and the whole assessment on all classes
of property is to be regarded as one judgment. If any board which
is an essential part of the taxing system intentionally, and therefore
fraudulently, violates the law, by uniformly undervaluing certain classes
of property, the assessment by other boards of other classes of property
at the full value, though a literal compliance with the law, makes the
whole assessment, considered as one judgment, a fraud upon the fully-
assessed property. And this is true although the particular board as-
sessing the complainant's property may have been wholly free from
fault of fraud or intentional discrimination. Therefore the injunction
might issue against the assessment upon the fully-assessed property,
as void altogether, until a new and uniform assessment upon all prop-
erty according to law could be inade. And such is the rule in some
courts. Weeks v. Milwaukee, 10 Wis. 263; Hersey v. Board, 16 Wis.
192, 82 Am. Dec. 713; Smith v. Smith, 19 Wis. 619, 88 Am. Dec. 707.
The inequity of allowing the taxpayer to escape altogether, and the
intolerable inconvenience to the public in the delay incident to such
a course, however, lead a court of equity to shape its order so as to
allow only so much of the fraudulent judgment to be enforced against
the complainant as may be done without imposing on him any in-
equality of tax burden.
We reach the conclusion, therefore, that the Circuit Court was right
in enjoining the unjust, unequal, and (in the sense already explained)
fraudulent assessment against the complainant; but we think the order
should have required, as a condition of the issuing of the injunction,
that the complainant should pay to the proper officers a tax upon the
75 per cent. of the assessment made by defendants. The evidence,
taken with the averments of the bill, does not establish that the discrim-
ination against the complainants property really exceeds this. The
condition imposed by the Circuit Court was the payment of the taxes on
the assessment for 1897 by the state board of assessors and equalizers.
That assessment, as we have found, was annulled by the act of 1897.
The order of the court is that the order of injunction be modified
as above stated, and that, as thus modified, it be affirmed, at the costs
of the appellants.27
27 Other cases in this collection illustrating the appeal to the courts for
relief against administrative action in the matter of taxation and revenue :
Action against officer: Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145
(1816); Easton v. Calendar, 11 Wend. (N. Y.) 90 (1833) ; Chegaray v. Jen-
FR.ADM.LAW--38
594
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 175.-RAILROAD RATE REGULATION
CHICAGO, M. & ST. P. RY. CO. v. STATE OF MINNESOTA
ex rel. RAILROAD & WAREHOUSE COMMISSION.
(Supreme Court of United States, 1890. 134 U. S. 418, 10 Sup. Ct. 462, 33 L.
Ed. 970.)
Writ of error to review a judgment of the Supreme Court of the
state of Minnesota awarding a writ of mandamus against the Chi-
cago, Milwaukee & St. Paul Railway Company.
BLATCHI FORD, J.28 The opinion of the Supreme Court is reported
in 38 Minn. 281, 37 N. W.782. In it the court, in the first place, con-
strued the statute on the question as to whether the court itself had
jurisdiction to entertain the proceeding, and held that it had. Of
course, we cannot review this decision.
It next proceeded to consider the question as to the nature and
extent of the powers granted to the commission by the statute in
'the matter of fixing the rates of charges. On that subject it said:
"It seems to us that, if language means anything, it is perfectly
evident that the expressed intention of the Legislature is that the
rates recommended and published by the commission, assuming that
they have proceeded in the manner pointed out by the act, should
be not simply advisory, nor merely prima facie equal and reasonable,
but final and conclusive as to what are lawful or equal and reasona-
ble charges; that, in proceedings to compel compliance with the
rates thus published, the law neither contemplates nor allows any
issue to be made or inquiry had as to their equality and reasonable-
ness in fact. Under the provisions of the act, the rates thus pub-
lished are the only ones that are lawful, and therefore, in contempla-
tion of law, the only ones that are equal and reasonable; and hence,
in proceedings like the present, there is, as said before, no fact to
kins, ģ N. Y. 376 (1851); Tracy v. Swartwout, 10 Pet. 80, 9 L. Ed. 354
(1836); Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373 (1836); Cary v. Cur-
tis, 3 How. 236, 11 L. Ed. 576 (1815); action against municipality: Lincoln
V. Worcester, 8 Cush. (Mass.) 55 (1851); Falls v. Cairo, 58 Ill. 403 (1871);
Ætna Insur. Co. v. Mayor', 153 N. Y. 331, 47 N. E. 593 (1897); Dooley V.
United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074 (1901); cer-
tiorari: People v. Board of Assessors, 39 N. Y. 81 (1868); People ex rel. Del.
& H. Canal Co. v. Parker, 117 N. Y. 86, 22 N. E. 752 (1889); Tomlinson v.
Board of Equalization, 88 Tenn. 1, 12 S. W. 414, 6 L. R. A. 207 (1889); in-
junction: Cleveland, etc., R. Co. v. Backus, 154 U. S. 439, 14 Sup. Ct. 1122,
38 L. Ed. 1041 (1894); Pittsburgh, etc., R. Co. v. Board of Public Works, 172
U. S. 32, 19 Sup. Ct. 30, 43 L. Ei. 354 (1898); Huling v. Ehrich, 183 Ill. 315,
55 N. E. 636 (1899); defense against enforcement: Hagar v. Reclamation
District, 111 U. S. 701, 4 Sup. Ct. 663, 28 I. Ed. 569 (1884); appeal: Bureau
County v. C., B. & Q. R. Co., 44 Ill. 229 (1867).
28 Only a portion of the opinion of Blatchford, J., is printed.
Ch. 9)
595
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
traverse, except the violation of the law in refusing compliance with
the recommendations of the commission. Indeed, the language of
the act is so plain on that point that argument can add nothing to
its force.”
It then proceeded to examine the question of the validity of the
act under the Constitution of Minnesota, as to whether the Legis-
lature was authorized to confer upon the commission the powers
given to the latter by the statute. It held that as the Legislature liad
the power itself to regulate charges by railroads, it could delegate
to a commission the power of fixing such charges, and could make
the judgment or determination of the commission as to what were
reasonable charges final and conclusive.
The construction put upon the statute by the Supreme Court of
Minnesota must be accepted by this court, for the purposes of the
present case, as conclusive, and not to be re-examined here as to
its propriety or accuracy. The Supreme Court authoritatively de-
clares that it is the expressed intention of the Legislature of Min-
nesota, by the statute, that the rates recommended and published by
the commission, if it proceeds in the manner pointed out by the
act, are not simply advisory, nor merely prima facie equal and rea-
sonable, but final and conclusive as to what are equal and reasonable
charges; that the law neither contemplates nor allows any issue
to be made or inquiry to be had as to their equality or reasonable-
ness in fact; that, under the statute, the rates published by the
commission are the only ones that are lawful, and therefore, in con-
templation of law, the only ones that are equal and reasonable; and
that, in a proceeding for a mandamus under the statute, there is
no fact to traverse except the violation of law in not complying with
the recommendations of the commission. In other words, although
the railroad company20 is forbidden to establish rates that are not
equal and reasonable, there is no power in the courts to stay the
hands of the commission, if it choses to establish rates that are un-
equal and unreasonable.
This being the constriction of the statute by which we are bouind
in considering the present case, we are of opinion that, so construed,
it conflicts with the Constitution of United States in the particulars
complained of by the railroad company. It deprives the company
of its right to a judicial investigation, by due process of law, under
the forms and with the machinery provided by the wisdom of suic-
cessive ages for the investigation judicially of the truth of a matter
in controversy, and substitutes therefor, as an absolute finality, the
action of a railroad commission which, in view of the powers con-
ceded to it by the state court, cannot be regarded as clothed with
judicial functions, or possessing the machinery of a court of jus-
tice.
29 (Sic?) should be "commission."
596
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
Under section 8 of the statute, which the Supreme Court of Min-
nesota says is the only one which relates to the matter of the fixing
by the commission of general schedules of rates, and which section,
it says, fully and exclusively provides for that subject, 30 and is
complete in itself, all that the commission is required to do is, on
the filing with it by a railroad company of copies of its schedules
of charges, to "find” that any part thereof is in any respect unequal
or unreasonable, and then it is authorized and directed to compel
the company to change the same, and adopt such charge as the com-
mission “shall declare to be equal and reasonable”; and to that
end it is required to inform the company in writing in what respect
its charges are unequal and unreasonable. No hearing is provided
for; no summons or notice to the company before the commission
has found what it is to find, and declared what it is to declare; no
opportunity provided for the company to introduce witnesses be-
fore the commission-in fact, nothing which has the semblance of
due process of law; and although, in the present case, it appears
that, prior to the decision of the commission, the company appeared
before it by its agent, and the commission investigated the rates
charged by the company for transporting milk, yet it does not appear
what the character of the investigation was, or how the result was
arrived at.
By the second section of the statute in question, it is provided
that all charges made by a common carrier for the transportation of
passengers or property shall be equal and reasonable. Under this
provision, the carrier has a right to make equal and reasonable char-
ges for such transportation. In the present case, the return alleged
that the rate of charge fixed by the commission was not equal or rea-
sonable, and the Supreme Court held that the statute deprived the
company of the right to show that judicially. The question of the
reasonableness of a rate of charge for transportation by a railroad
company, involving, as it does, the element of reasonableness both
as regards the company and as regards the public, is eminently a
question for judicial investigation, requiring due process of law for
its determination. If the company is deprived of the power of charg-
ing reasonable rates for the use of its property, and such depriva-
30 Section 9 (f) of the act of Minnesota (Laws 1887, c. 10) provided: "Said
commission may from time to time make or amend such general rules or
orders as may be requisite for the order and regulation of proceedings be-
fore it, includings forms of notices and service thereof, which shall conform
as nearly as may be to those in use in the courts of this state. Any party
may appear before said commission and be heard in person or by attorney."
The opinion delivered by the Supreme Court of Minnesota (State v. Chi-
cago, M. & St. P. Ry. Co., 38 Minn, 281, 37 N. W. 782 [1888]) made no refer-
ence to this provision.
The Supreme Court of the United States, in San Diego Land & Town Co.
v. National City, 174 U. S. 749, 19 Sup. Ct. 804, 43 L. Ed. 1154 (1899), said:
"Observe that this court based its interpretation of the statute of Minnesota
upon the construction given to it by the Supreme Court of that state."
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
597
tion takes place in the absence of an investigation by judicial ma-
chinery, it is deprived of the lawful use of its property, and thus,
in substance and effect, of the property itself, without due process
of law, and in violation of the Constitution of the United States;
and, in so far as it is thus deprived, while other persons are permit-
ted to receive reasonable profits upon their invested capital, the com-
pany is deprived of the equal protection of the laws.
It is provided by section 4 of article 10 of the Constitution of
Minnesota of 1857, that "lands may be taken for public way, for
the purpose of granting to any corporation the franchise of way
for public use," and that "all corporations, being common carriers,
enjoying the right of way in pursuance to the provisions of this
section, shall be bound to carry the mineral, agricultural, and other
productions and manufactures on equal and reasonable terms.” It
is thus perceived that the provision of section 2 of the statute in
question is one enacted in conformity with the Constitution of Min-
nesota.
The issuing of the peremptory writ of mandamus in this case was,
therefore, unlawful, because in violation of the Constitution of the
United States; and it is necessary that the relief administered in fa-
vor of the plaintiff in error should be a reversal of the judgment of
the Supreme Court awarding that writ, and an instruction for further
proceedings by it not inconsistent with the opinion of this court.
In view of the opinion delivered by that court, it may be impossible
for any further proceedings to be taken other than to dismiss the pro-
ceeding for a mandamus, if the court should adhere to its opinion that,
under the statute, it cannot investigate judicially the reasonableness of
the rates fixed by the commission. Still, the question will be open for
review; and the judgment of this court is that the judgment of the
Supreme Court of Minnesota, entered May 4, 1888, awarding a per-
emptory writ of mandamus in this case, be reversed, and the case be
remanded to that court, with an instruction for further proceedings not
inconsistent with the opinion of this court.
BRADLEY, GRAY, and LAMAR, JJ., dissent.31
INTERSTATE COMMERCE COMMISSION V. ALABAMA MID-
LAND RY. CO.
(Supreme Court of the United States, 1897. 168 U. S. 144, 18 Sup. Ct. 45, 42
L. Ed. 414.)
Appeal from the United States Circuit Court of Appeals for the
Fifth Circuit.
On the 27th day of June, 1892, the Board of Trade of Troy, Ala.,
filed a complaint before the Interstate Commerce Commission, at Wash-
81 See, also, Freund, Police Power, § 381.
598
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
*
*
ington, D. C., against the Alabama Midland Railway Company and
the Georgia Central Railroad Company and their connections; claiming
that, in the rates charged for transportation of property by the rail-
road companies mentioned, and their connecting lines, there is a dis-
crimination against the town of Troy, in violation of the terms and
provisions of the interstate commerce act of Congress of 1889 (Act
Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]).
The general ground of complaint is that, Troy being in active com-
petition for business with Montgomery, the defendant lines of rail-
way unjustly discriminate in their rates against the former, and give
the latter an undue preference or advantage, in respect to certain com-
modities and classes of traffic.
The commission, having heard this complaint on the evidence there-
tofore taken, ordered, on the 15th day of August, 1893, the roads par-
ticipating in the traffic involved in this case “to cease and desist” from
charging, demanding, collecting, or receiving any greater compensa-
tion in the aggregate for services rendered in such transportation than
is specified as follows, to wit: [The specification is omitted.]
The defendants having failed to heed these orders, the commission
thereupon filed this bill of complaint in the Circuit Court of the United
States for the Middle District of Alabama, in equity, to compel obedi-
ence to the same. On the hearing in said court the bill of complaint
was dismissed (69 Fed. 227), and complainant, the Interstate Com-
merce Commission, appealed the cause to the United States Circuit
Court of Appeals for the Fifth Judicial Circuit, at New Orleans, La.
And thereupon, in said last-named court, on the 2d day of June, 1896,
the decree of the said Circuit Court of the United States for the Mid-
dle District of Alabama was in all things duly affirmed (21 C. C. A.
51, 74 Fed. 715), and from this judgment and decree the appellant
lias appealed to this court.
Mr. Justice SHIRAS, after stating the facts in the foregoing lan-
guage, delivered the opinion of the court.32
The first contention we encounter upon this branch of the case is
that the Circuit Court had no jurisdiction to review the judgment of
the commission upon this question of fact; that the court is only au-
thorized to inquire whether or not the commission has misconstrued the
statute, and thereby exceeded its power; that there is no general ju-
risdiction to take evidence upon the merits of the original controversy ;
and, especially, that questions under the third section are questions of
fact, and not of power, and hence unreviewable.
We think this contention is sufficiently answered by simply referring
to those portions of the act which provide that, when the court is in-
voked by the commission to enforce its lawful orders or requirements,
*
82 Only a portion of this case is printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
599
the court shall proceed, as a court of equity, to hear and determine the
matter, and in such manner as to do justice in the premises.33
In the case of Cincinnati, N. O. & T. P. R. Co. v. Interstate Com-
merce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935, the
findings of the commission were overruled by the Circuit Court, after
additional evidence taken in the court, and the decision of the Circuit
Court was reviewed in the light of the evidence, and reversed, by the
Circuit Court of Appeals; and this court, in reference to the argument
that the commission had not given due weight to the facts that tended
to show that the circumstances and conditions were so dissimilar as to
justify the rates charged, held that as the question was one of fact,
peculiarly within the province of the commission, and as its conclusions
had been accepted and approved by the Circuit Court of Appeals, and
as this court found nothing in the record that made it our duty to draw
a different conclusion, the decree of the Circuit Court of Appeals
should be affirmed. Such a holding clearly implies that there was
power in the courts below to consider and apply the evidence, and in
this court to review their decisions.
So in the case of Texas & P. R. Co. v. Interstate Commerce Commis-
sion, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940, the decision of the
Circuit Court of Appeals, which affirmed the validity of the order of
the commission, upon the ground that, even if ocean competition should
33. Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 384 [U. S.
Comp. St. 1901, p. 3165]) § 16: “Whenever any common carrier, as defined
in and subject to the provisions of this act, shall violate or refuse or neglect
to obey any lawful order or requirement of the commission in this act named,
it shall be the duty of the counmission, and lawful for any company or per-
son interested in such order or requirement, to apply, in a summary way,
by petition, to the Circuit Court of the United States sitting in equity in
the judicial district in which the common carrier complained of has its
principal office, or in which the violation or disobedience of such order or
requirement shall happen, alleging such violation or disobedience, as the
case may be; and the said court shall have power to hear and determine
the matter, on such short notice to the common carrier complained of as the
court shall deem reasonable; and such notice may be served on such com-
mon carrier, his or its officers, agents, or servants, in such manner as the
court shall direct; and said court shall proceed to hear and determine the
matter speedily as a court of equity, and without the formal pleadings and
proceedings applicable to ordinary suits in equity, but in such manner as to
do justice in the premises; and to this end such court shall have power, if
it think fit, to direct and prosecute, in such mode and by such persons as
it may appoint, all such inquiries as the court may think needful to enable
it to form a just judgment in the matter of such petition, and on such hear-
ing the report of said commission shall be prima facie evidence of the matters
therein stated; and if it be made to appear to such court, on such hearing
or on report of any such person or persons, that the lawful order or require-
ment of said commission drawn in question has been violated or disobeyed,
it shall be lawful for such court to issue a writ of injunction or other proper
process, mandatory or otherwise, to restrain such common carrier from fur-
ther continuing such violation or disobedience of such order or requirement
of said commission, and enjoining obedience to the same."
This provision was changed by Act June 29, 1906, C. 3591, § 5, 34 Stat. 591
(U. S. Comp. St. Supp. 1909, p. 1161), as follows:
If any carrier
fails or neglects to obey any order of the commission, other than for the pay-
600
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
be regarded as creating a dissimilar condition, yet that in the case un-
der consideration the disparity in rates was too great to be justified by
that condition, was reversed by this court, not because the Circuit
Court had no jurisdiction to consider the evidence, and thereupon to
affirm the validity of the order of the commission, but because that is-
sue was not actually before the court, and that no testimony had been
adduced by either party on such an issue; and it was said that the lan-
guage of the act, authorizing the court to hear and determine the mat-
ter as a case of equity, “necessarily implies that the court is not con-
cluded by the findings or conclusions of the commission."
Accordingly our conclusion is that it was competent, in the present
case, for the Circuit Court, in dealing with the issues raised by the pe-
tition of the commission and the answers thereto, and for the Circuit
Court of Appeals on the appeal, to determine the case upon a consider-
ation of the allegations of the parties, and of the evidence adduced in
their support; giving effect, however, to the findings of fact in the re-
port of the commission, as prima facie evidence of the matters therein
stated.
It has been uniformly held by the several Circuit Courts and the
Circuit Courts of Appeals, in such cases, that they are not restricted to
the evidence adduced before the commission, nor to a consideration
merely of the power of the commission to make the particular order
*
ment of money, while the same is in effect, any party injured thereby, or the
commission in its own name, may apply to the Circuit Court
for
an enforcement of such order. Such application shall be by petition, which
shall
be served upon the carrier,
and the court shall
prosecute such inquiries and make such investigations, through such means
as it shall deem needful in the ascertainment of the facts at issue, or which
may arise upon the hearing of such petition. If upon such hearing as the
court may determine to be necessary, it appears that the order was regularly
made and duly served, and that the carrier is in disobedience of the saine,
the court shall enforce obedience to such order by a writ of injunction, or
other proper process, mandatory or otherwise,
and in the enforce-
ment of such process the court shall have those powers ordinarily exercised
by it in compelling obedience to it by writs of injunction and mandamus.
From any action upon such petition an appeal shall lie by either party to
the Supreme Court of the United States, and in such court the case shall
have priority in hearing and determination over all other causes ercept crim-
inal causes, but such appeal shall not vacate or suspend the order appealed
from. The venue of suits brought in any of the Circuit Courts of the United
States against the commission to enjoin, set aside, annul or suspend any or-
der or requirement of the commission shall be in the district where the car-
rier
has its principal operating office and may be brought at any
time after such order is promulgated.
No injunction, interlocutory
order or decree suspending or restraining the enforcement of an order of
the commission shall be granted except on hearing after not less than five
days' notice to the commission. An appeal may be taken from any inter-
locutory order or decree granting or continuing an injunction in any suit,
but shall lie only to the Supreme Court of the United States."
See, also, the provision from the act of 1906 set forth in the passage next
quoted.
“In consequence of one of the comprehensive amendments to the act to
regulate commerce, adopted in 1906 (Act June 29, 1906, c. 3591, § 4, 34 Stat.
589 [U. S. Comp. St. Supp. 1909, p. 1158]), it is now provided that 'all orders
*
Ch.9)
601
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
under question, but that additional evidence may be put in by either
party, and that the duty of the court is to decide, as a court of equity,
upon the entire body of evidence.
Coming at last to the questions of fact in this case, we encounter a
large amount of conflicting evidence. It seems undeniable, as the ef-
fect of the evidence on both sides, that an actual dissimilarity of cir-
cumstances and conditions exists between the cities concerned, both as
respects the volume of their respective trade, and the competition, af-
fecting rates, occasioned by rival routes by land and water. Indeed, the
commission itself recognized such a state of facts, by making an al-
lowance in the rates prescribed for dissimilarity resulting from compe-
tition; and it was contended on behalf of the commission, both in the
courts below and in this court, that the competition did not justify the
discriminations against Troy to the extent shown, and that the allow-
ance made therefor by the commission was a due allowance.
The issue is thus restricted to the question of the preponderance of
the evidence on the respective sides of the controversy. We have read
the evidence disclosed by the record, and have endeavored to weigh it
with the aid of able and elaborate discussions by the respective counsel,
No useful purpose would be served by an attempt to formally state
and analyze the evidence, but the result is that we are not convinced
that the courts below erred in their estimate of the evidence, and that
of the commission, except orders for the payment of money, shall take ef-
fect within such reasonable time, not less than thirty days, and shall con-
tinue in force for such period of time, not exceeding two years, as shall be
prescribed in the order of the commission, unless the same shall be suspended
or modified or set aside by the commission, or be suspended or set aside by
a court of competent jurisdiction.' The statute endowing the commission
with large administrative functions, and generally giving effect to its orders
concerning complaints before it without exacting that they be previously
submitted to judicial authority for sanction, it becomes necessary to deter-
mine the extent of the powers which courts may exert on the subject. Be-
yond controversy, in determining whether an order of the commission shall
be suspended or set aside, we must cousider (a) all relevant questions of con-
stitutional power or right; (b) all pertinent questions as to whether the ac-
ministrative order is within the scope of the delegated authority under which
it purports to have been made; and (c) a proposition which we state inde-
pendently, although in its essence it may be contained in the previous one,
viz., whether, even although the oriler be in form within the delegated power,
nevertheless it must be treated as not embraced therein, because the exertion
of authority which is questioned has been inanifested in such an unreason-
able manner as to cause it, in truth, to be within the elementary rule that
tie substance, and not the shadow, determines the validity of the exercise
of the power. Postal Teleg. Cable Co. V. Adams, 155 U. S. 688, 698, 15 Sup.
Ct. 268, 360, 39 L. Ed. 311, 316, 5 Interst. Com. Rep. 1. Plain as it is that
the power's just stated are of the essence of judicial authority, and which,
therefore, may not be curtailed, and whose discharge may not be by us in a
proper case avoided, it is equally plain that such perennial powers lend no
support whatever to the proposition that we may, under the guise of exert-
ing judicial power, usurp merely administrative functions by setting aside
a lawful administrative order upon our conception as to whether the admin-
istrative power has been wisely exercised." Interstate Commerce Commis..
sion v. Illinois Cent. R. Co., 215 U. S. 452, 469, 470, 30 Sup. Ct. 155, 160, 54
L. Ed. (1909).
602
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
we perceive no error in the principles of law on which they proceeded
in the application of the evidence.
The decree of the Circuit Court of Appeals is accordingly affirmed.
Mr. Justice HARLAN, dissenting.
SECTION 76.–CORPORATIONS
KANSAS HOME INS. CO. v. WILDER.
(Supreme Court of Kansas, 1890. 43 Kan. 731, 23 Pac. 1061.)
JOHNSTON, J.34 Two cases between the same parties are submitted
together upon a single statement of facts, and according to the stipula-
tion of the parties only two legal propositions are presented for deci-
sion. The first one of these is whether the courts can inquire into and
control the superintendent of insurance in the exercise of his official
duties in granting, refusing, or revoking a certificate of authority to
a mutual fire insurance company organized under chapter 132 of the
Laws of 1885. Prior to the legislative session of 1889, the finding and
judgment of the superintendent in respect to the solvency of an in-
surance company, and its compliance with the requirements of law,
could not be controlled, and when he had exercised his discretion and
judgment it could not be reviewed, nor the motives which actuated him
inquired into by the courts. Insurance Co. v. Wilder, 40 Kan. 561, 20
Pac. 265.
The decision in the cited case, construing the statute with reference
to the power and discretion of the superintendent, was given in Jan-
uary, 1889, and the Legislature, which convened in the same month,
materially modified the statute, prescribing the power and duties of
the superintendent in dealing with mutual fire insurance companies.
In section 24, c. 132, Laws 1885, provision was made that, whenever
it should appear to the superintendent of insurance that the solven-
cy of a mutual fire insurance company was impaired, or that the insur-
ance laws of the state were being violated, he should immediately
make an examination, and for that purpose should have access to all
the books and papers of the company, and have power to administer
oaths and examine witnesses. It then proceeds: "If the superintendent
of insurance shall find, upon such examination, that the solvency of
the company has been impaired, or that the laws of the state have been
violated, he shall immediately suspend the certificate of authority until
the laws of the state have been fully complied with, or the solvency of
the company restored; or, if in his judgment the public safety require
84 Only a portion of the opinion of Johnston, J., is printed.
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
603
it, he may revoke the certificate of authority, and cause the company
to be enjoined from further insuring of property.”
This section was amended by chapter 159 of the Laws of 1889,
[by] which, after providing for reports and examinations substantially
as in the original section, the provision above quoted is changed so as
to read as follows: "If the solvency of such company has been impair-
ed, or the laws of the state have been violated, by the company, the su-
perintendent of insurance shall immediately suspend the certificate
of authority until the laws of the state have been fully complied with,
or the solvency of the company restored; and he also may in such a
case revoke the certificate of authority, and cause the company, upon
proper proceedings instituted against it, to be enjoined from further
insuring of property." Provisos are then added which, in substance,
state that the superintendent cannot refuse an insurance company a
certificate of authority to do business in the state, or revoke or suspend
a certificate already granted to such a company, if it is solvent, and
has complied and is complying with the laws of the state. And the
provisos further recognize that actions may be brought against the su-
perintendent of insurance in the county where his office is located, to
compel him to issue certificates of authority to an insurance company,
and to restrain him from revoking or suspending a certificate of au-
thority which had been theretofore granted.
The language in the statute of 1885 which we have italicized was
omitted in the amendment of 1889. In the earlier provision, the li-
cense or certificate of authority might be suspended on the mere find-
ing of the superintendent that the solvency of the company had been
impaired, and it might be revoked solely upon his judgment that the
public safety required it. The language authorizing the suspension or
revocation of a certificate of authority upon the mere finding and dis-
cretion of the superintendent is carefully excluded from the later pro-
vision. These changes, together with the provisions forbidding the
refusal, revocation, or suspension of a certificate of authority by the
superintendent, where the company is solvent, and has complied with
all the laws of the state, as well as the proviso which recognizes that
an action of mandamus may be brought to compel the superintendent
to issue certificates of authority, and an action of injunction may be
brought against him to enjoin him from revoking or suspending cer-
tificates of authority, indicate quite clearly the legislative purpose that,
in the future, the determination and action of the superintendent should
not be final and conclusive, so far as mutual fire insurance companies
are concerned.
The fact that the law was aniended so soon after a judicial construc-
tion had been placed upon it is not to be overlooked in ascertaining the
object of the Legislature in enacting the amended law. By changing
the language of the statute, the Legislature has indicated a purpose to
change the rule of the former statute, and that the new is to have a dif-
ferent construction than had already been placed upon the old one.
604
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
This circumstance, and the changes in the phraseology that were made,
manifest a legislative purpose to make the determination of the su-
perintendent, as to the right of a mutual fire insurance company to
begin or continue business, subject to judicial inquiry and control. If
this was not the effect, then the amendment was for no purpose; and
it is contended here that no actual change was made or intended by
the amendment. But we cannot presume that the "Legislature in-
tended to go through the form and time and expense of legislation to
accomplish nothing, or to do that already fully and completely done."
City of Emporia v. Norton, 16 Kan. 236. The first question presented
must therefore be decided in the affirmative.
*
*
· PROVIDENT SAVING LIFE ASSUR. SOCIETY v. CUTTING,
Insurance Com'r.
(Supreme Judicial Court of Massachusetts, 1902. 181 Mass. 261, 63 N. E.
433, 92 Am. St. Rep. 415.)
Case reserved from Supreme Judicial Court, Suffolk county.
Petition for mandamus by the Provident Savings Life Assurance
Society of New York against Frederick L. Cutting, Insurance Commis-
sioner of the Commonwealth. Case reserved for the determination of
the full court on the petition, demurrer, and agreed statement of facts.
Petition dismissed.
KNOWLTON, J. This is a petition for a writ of mandamus to com-
pel the insurance commissioner to change his valuation of the out-
standing policies of the petitioner so as to diminish the reserve lia-
bility for which it must have assets to meet the requirements of our
law. The duty of the commissioner to make this valuation under Rev.
Laws, c. 118, § 11, is only a preliminary part of his duty, under sec-
tion 17 of this chapter, annually to make a report to the general court
of his official transactions,” in which he shall include, among other
things, "an exhibit of the financial condition and business transactions
of the several insurance companies as disclosed by official examina-
tions of the same, or by their annual statements, abstracts of which
statements, with his valuation of life policies, shall appear therein, and
such other information and comments relative to insurance and to the
public interest therein, as he thinks proper." It is important in one
other way. It naturally is used in part as a foundation for action in
case he is called upon, under section 7, to revoke or suspend the certif-
icates and authority granted to a foreign insurance company because
he is of opinion that it is "in an unsound condition," or "that its ac-
tual funds, exclusive of its capital, are less than its liabilities."
The complaint against the respondent is that in applying the rule of
computation prescribed by the statute to a certain class of policies is-
sued by the petitioner, he has made a mistake in holding that, for the
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
605
purpose of ascertaining their reserve value, they are to be treated as
being from their inception policies for life or for an endowment period,
and not as policies for one year only, with an option in the assured to
continue them in force at the end of the year without a further physical
examination, and without an increase of premium on account of his
greater age. It is not contended that he has acted in bad faith, or has
willfully disobeyed the law. There is only a difference of opinion be-
tween the petitioner and the respondent as to the proper application of
- the rule prescribed by the statute to the methods of the petitioner in in-
suring under this class of policies.
A preliminary question is whether the decision of the commissioner
in a matter of this kind is subject to revision by this court on an ap-
plication for a writ of mandamus. In various proceedings affecting
foreign insurance companies the statute makes no provision for an ap-
peal from his decision, but manifestly intends that his conclusion, in
the exercise of his judgment, shall be final. Particularly is this so in the
valuation of policies and assets and the determination of the financial
condition of foreign companies doing business in this commonwealth.
“Before granting certificates of authority to an insurance company to
issue policies or make contracts of insurance, the commissioner shall
be satisfied by such examination as he may make and such evidence as
he may require, that such company is otherwise qualified under the laws
of this commonwealth to transact business herein." Rev. Laws, c. 118,
§ 6. By Rev. Laws, c. 120, § 10, he has absolute authority to give or
withhold his indorseinent upon a requisition of the directors for the
withdrawal of any portion of an emergency fund deposited by an as-
sessment insurance company with the treasurer of the commonwealth.
Under Rev. Laws, c. 120, $ 12, the authority granted to a foreign as-
sessment insurance company to do business in this commonwealth
"shall be revoked if the insurance commissioner, on investigation, is
satisfied that such corporation is not paying in full the maximum
amount named in its policies, or that it has otherwise failed to comply
with any provision of this chapter or its own contracts.”
In regard to the reduction of capital stock of an insurance compa-
ny it is provided by Rev. Laws, c. 118, $ 37, that, "if the commissioner
finds that the reduction is made in conformity to law, and that it will
not be prejudicial to the public, he shall endorse his approval upon the
certificate.” By section 67 of this chapter a company organized under
the laws of another state may be admitted to do business in this com-
monwealth, "if in the opinion of the commissioner, it is in sound
financial condition," etc. Section 2 provides that "no domestic
life insurance company shall reinsure its risks except by permis-
sion of the insurance commissioner; but may reinsure not exceed-
ing one-half of any individual risk.” Under section 78 “no foreign
insurance company shall be so admitted and authorized to do business
until
it has satisfied the insurance commissioner" of nu-
merous facts therein stated. The terms of each of these sections make
*
*
1)
606
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
it plain that the opinion and judgment of the insurance commissioner
is to be final and conclusive in determining these important matters
upon which the rights of the insurance companies and the protection
of the public depend. Most, if not all, of these several conclusions in-
volve the consideration of questions of law as well as questions of
fact.
In regard to the only important results depending upon the valua-
tion of policies to ascertain the reserve liability of insurance companies,
namely, the making of a report to the Legislature, and the revocation
or suspension of certificates of authority to do business, it seems that
the judgment of the commissioner is not subject to revision. Under
section 17 he is to make a report of the financial condition of insur-
ance companies and of their transactions and the valuation of life
policies, which must mean a report, according to his understanding of
the facts, founded on examinations and statements. By section y he
is to revoke or suspend certificates of authority granted to a foreign
insurance company if he “is of opinion, upon examination or other
evidence, that a foreign insurance company is in an unsound condi-
tion, that it has failed to comply with the law, or that its actual funds,
exclusive of its capital, if it is a life insurance company, are less than
its liabilities,” etc., and no new business can thereafter be done by such
company "until its authority to do business is restored by the commis-
sioner." If the "ground for revocation or suspension relates only to
the financial condition or soundness of the company, or to a deficiency
in its assets,” there is no appeal from a decision of the commissioner.
In other cases the company may apply to the Supreme Judicial Court
for a reversal of his decision. Here again is an indication that the
judgment of the commissioner in all matters of law or fact involved in
determining the financial condition of a company for a purpose affect-
ing it, even to the extent of terminating its existence as an insurer in
this commonwealth, is to be final and conclusive.
The valuation of policies for the purpose of determining the reserve
liability is only one of the processes necessary to determine the com-
pany's financial condition. It involves an application of the statutory
rule to each policy, in connection with the methods and practices in the
transaction of the business that exist either as a part of the science
of life insurance or otherwise outside of the stipulations of the policy.
New forms of policies may be adopted which were not known when
the statutory rule was established, and new questions may arise de-
pending in part upon the principles of life insurance as a science and
in part upon the practices of the company, as well as upon rules of
law, in determining how the statutory rule shall apply to these policies.
In the present case, even if the contracts referred to are to be consid-
ered technically as the petitioner contends, the statute is silent as to
whether the value of the option to continue the insurance at the end of
the year without an examination, and at the premium fixed for an age
a year younger than the assured would then have attained, is not to
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
607
be considered in determining the reserye liability of the company under
the contract.
Questions of fact and questions of law must be considered in com-
ing to a conclusion. In valuing all the assets of a company, which
usually comprise investments of many kinds, questions of law as well
as questions of fact must inevitably arise. If we are to examine each
policy or class of policies, together with the methods of the company
in fixing their premiums, and any other facts pertaining to the policies
which are different from those belonging to other kinds of policies,
for the purpose of determining whether the insurance commissioner
has made a mistake of law in valuing them, we know of no good
reason why his valuation of each item of the assets might not be ex-
amined to see if it is affected by a mistake of law. A mistake of the
latter kind might be as detrimental to the company as one of the for-
mer, whether viewed in reference to its effect upon the commissioner's
report or upon his determination to revoke or suspend the certificate
of authority. If the commissioner's mistakes of law are to be cor-
rected on an application for a writ of mandamus, his mistakes in the
construction of contracts entering into investments should be dealt
with as well as his mistakes in the construction of contracts for in-
surance.
We are of opinion that the statute does not contemplate a revision
of the commissioner's decisions in this way. This officer is intrusted
with the performance of important duties, and invested with power
to use his discretion and judgment in matters which call for prompt
and decisive action, and which would be difficult to investigate in our
courts. We are of opinion that, at least so long as he acts in good
faith, intending to obey the law, we cannot, by a writ of mandamus,
compel him to change his conclusions, either of law or fact, in the
valuation of the policies or assets of a life insurance company.
Without considering whether any mistake appears, we must deny
the petitioner's application. Similar decisions have been made in re-
gard to the powers of the insurance commissioner in Ohio and Kan-
State v. Moore, 42 Ohio St. 103; Insurance Co. v. Wilder, 40
Kan. 561, 20 Pac. 265.
Petition dismissed.
sas.
UNITED STATES FIDELITY & GUARANTY CO. v. LINE-
HAN, Insurance Com'r.
(Supreme Court of New Hampshire, 1904. 73 N. H. 41, 58 Atl. 956.)
Mandamus by the United States Fidelity & Guaranty Company
against John C. Linehan, insurance commissioner. Writ granted.
The plaintiff is incorporated under the laws of Maryland, and under
authority of its charter is engaged outside of New Hampshire in the
business of a fidelity and surety company and in the burglary insurance
608
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
business. It was licensed to do business as a fidelity and surety com-
pany in this state on February 17, 1897, since which date its license
has been renewed continuously, except for a short time after May 29,
1900. On July 16, 1900, and on other dates since then, the plaintiff
requested the defendant to issue to it a license to do a burglary insur-
ance business in New Hampshire, in addition to the license to do fideli-
ty and guaranty business, and the defendant refused to do so. It
has complied with all the provisions of the statutes which are prereq-
uisite to the issuance of the license prayed for, if it is entitled thereto.
The defendant, acting in good faith in his capacity as insurance
commissioner, refused to issue a license to the plaintiff company.
While he believed that, as a general rule, speaking not of to-day, but of
the future, no company that does a surety business in combination with
any other business is a safe and reliable company, he was satisfied that
the plaintiff was a safe, reliable company, entitled to public confidence
at present, and should consider it as such if permitted to do burglary
insurance business in New Hampshire. He also believed that it would
be contrary to public policy to permit such a combination of surety
and other insurance business in this state. This belief was based upon
the length of time that must necessarily elapse before the ultimate lia-
bility on surety bonds can be ascertained, and upon the lack of statis-
tics from which to compute the proper relation between reserve fund
and liability. But he believed this company would be able to do its
entire business with perfect safety if permitted to do burglary insur-
ance business in New Hampshire in addition to its other lines, and
would continue so, unless the company added more hazardous lines
than the one now proposed; but he objected to licensing this company
because he believed that it was against public policy, for the reason
that the combination of surety business with other insurance business
was unsafe as a general proposition.
WALKER, J. The plaintiff is a Maryland corporation, and under its
charter it is authorized to carry on in combination the business of a
surety company and that of a burglary insurance company. Both
classes of business properly fall under the general designation of in-
surance. The plaintiff is an insurance company, empowered by its
charter to do a dual insurance business. But its charter does not con-
fer upon it power to engage in business in New Hampshire. Such
power, if it exists, is derived from the expressed or implied will of the
Legislature of this state. It is a privilege or license which the Legis-
lature may withhold from corporations like the plaintiff, organized in
other states (Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 8
Sup. Ct. 1737, 31 L. Ed. 650); but, in the absence of express legisla-
tion against the exercise of the privilege by such corporations, it is
generally held that they acquire the right by comity, or that legislative
silence upon the subject is equivalent to permission (2 Mor. Corp., $$
960, 961; Cowell v. Springs Co., 100 U. S. 55, 59, 25 L. Ed. 547).
A state policy may be as thoroughly established in this way as by posi-
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
609
tive enactment. If the Legislature does not see fit to prohibit a for-
eign corporation from carrying its business here, when it is not re-
pugnant to common-law principles, it, in effect, declares the public pol-
icy of the state to be favorable to its engaging in business here. The
presumption of legislative intention, founded upon the doctrine of
comity, affords ample evidence in support of that conclusion.
It is not claimed that there is any legislation in this state which pro-
hibits an insurance company of another state from carrying on here
the business of a surety company or that of a burglary insurance com-
pany. In accordance, therefore, with the principle above noted, it fol-
lows that it is the policy of the state to permit companies to engage
here in those lines of insurance, restricted only by their charter pro-
visions and such regulations or conditions as the Legislature has en-
acted relating to the business of insurance. By comity they are invested
with a qualified right to do business here, of which they cannot be de-
prived except by legislative prohibition. These principles have re-
ceived legislative sanction in statutes regulating the business of for-
eign insurance companies and surety companies. Pub. St. 1901, cc.
169, 172.
Nor has the Legislature furnished evidence of a policy to exclude
insurance companies from the state which combine two or more dis-
tinct classes of insurance business. In United States, etc., Co. v. Line-
han, 70 N. H. 395, 47 Atl. 611, it was held that a foreign surety com-
pany may be licensed to transact that business in this state, although
authorized by its charter to engage in other business. The Legislature
had not made the fact that it was authorized by its charter to do sev-
eral kinds of insurance business conclusive evidence against its right,
by comity, to do one kind. In Employers' Assurance Corp. v. Merrill,
155 Mass. 401, 405, 29 N. E. 529, it is said: "Before the year 1879,
foreign companies, authorized by their charters to transact more than
one class of insurance, and admitted here, were not restricted in their
operations by our statutes; but since the passage of the statute of
1879 (page 484, c. 130), such companies, with exceptions not ma-
terial to the present case, have been required to elect one class or kind
of business, and allowed to transact here only that class or kind."
And the court further say (page 410, 155 Mass., page 531, 29 N. E.),
that originally “foreign companies, under certain conditions not re-
stricting the classes of risks which they might write, were allowed to
transact business here. A license or certificate of authority from the
insurance commissioner was first provided for by the statute of 1878
(page 93, c. 130, $ 6), and the foreign company to whom it was issued
was thereupon "authorized to transact business in this commonwealth,
and was restricted only by its charter."
A similar result was reached in People v. Company, 153 Ill. 25, 38
N. E. 752, 26 L. R. A. 295, where it was held that, in the absence of
any prohibition in the statute against the business of multiform insur-
HR. ADM. LAV-39
610
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
ance, the comity that prevails between the states permits a foreign
corporation to do such insurance in Illinois, although the statute of
that state does not authorize the formation of companies for that pur-
pose. See, also, State v. Insurance Co., 39 Minn. 538, 41 N. W. 108.
By comity the plaintiff acquired the right to carry on its dual business
in this state, subject to the statutory regulations imposed upon foreign
insurance companies; and its right in this respect, until revoked by
the Legislature, is as secure and stable as though it had been acquired
by express grant from that body.
As the Legislature has, in effect, authorized foreign insurance cor-
porations carrying on more than one line of insurance to exercise their
charter powers in this state, subject to certain statutory regulations, it
is clear that they cannot be excluded by the commissioner simply upon
the ground that he believes that such combinations, as a general rule,
are opposed to the public interest. If such a company has complied
with the prescribed regulations, and "the commissioner is satisfied
that the company has the requisite capital and assets, and that it is a
safe, reliable company, entitled to confidence, he shall grant a license
to it to do insurance business by authorized agents within the state,
subject to the laws of the state, until the first day of April thereafter."
Pub. St. 1901, c. 169, $ 6. If, upon examination, he finds that the com-
pany has complied with the requirements of the statute, and he is
satisfied that it has the requisite capital and assets, and “that it is a
safe, reliable company, entitled to confidence," it is his duty to grant
the license. The finding of these facts in favor of the company ren-
ders his opinion as to the general nature of the insurance business it is
authorized by its charter to do immaterial. The duty imposed upon
him is to carry out the purpose of the Legislature, judicially ascer-
tained, and that purpose does not authorize him officially to pass upon
the general question of the utility of permitting foreign insurance com-
panies to do business in this state.
The nature of the applicant's business is undoubtedly to be consid-
ered by the commissioner as evidence upon the question of its relia-
bility as a business corporation, and it is conceivable that that alone
might warrant his finding of the fact of its unreliability. Also, the
difficulty of computing the ratio between its reserve fund and its lia-
bilities is an evidentiary fact bearing upon the question of its finan-
cial soundness. But when, upon the evidence before him, he is satis-
fied, as he was in this case, that the company "was a safe, reliable
company, entitled to public confidence at present,” that "its methods
of business were safe and conservative," and that it “would be able to
do its entire business with perfect safety if permitted to do burglary
insurance business in New Hampshire in addition to its other lines,
and would continue so unless the company added more hazardous
lines than the one now proposed," he cannot exclude it on the ground
that it is theoretically unreliable. If by reason of the dual character
of its business he was unable to determine the question of its relia-
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
611
bility, or if he was satisfied that such a business combination rendered
this company unsafe in fact for public patronage, his refusal to grant
it a license would seem to have been amply justified,
The evidence which satisfies him that the company is entitled to pub-
lic confidence shows that his theory that such companies are not safe
and reliable is not of universal application, and ought not to be in-
variably followed. The character of its business does not afford con-
clusive proof that it is unsafe. It may be safe in the statutory sense,
notwithstanding it does a dual business; and the commissioner's find-
ing that it is safe and reliable, as a matter of fact, renders the objec-
tion that it is theoretically unsafe of little practical consequence. How-
ever it may be with other similar companies, the commissioner finds
that this company possesses all the statutory requirements for carry-
ing on its business in this state, comity favors its admission, and hence
it is entitled to the license sought as a matter of legal right. It only
remains for the commissioner to perform the ministerial duty of is-
suing the license, and that duty may be appropriately enforced in
this proceeding. Boody v. Watson, 64 N. H. 162, 9 Atl. 794; Hart
v. Folsom, 170 N. H. 213, 217, 47 Atl. 603; Manchester v. Furnald,
71 N. H. 153, 158, 51 Atl. 657.
Petition granted. All concurred.
SECTION 17.-IMMIGRATION-QUESTION OF CONDITION
OF ALIEN
NISHIMURA EKIU v. UNITED STATES et al.
(Supreme Court of United States, 1892. 142 U. S. 651, 12 Sup. Ct. 336, 35
L. Ed. 1146.)
Appeal from the Circuit Court of the United States for the North-
ern District of California. Affirmed.
Habeas corpus, sued out May 13, 1891, by a female subject of
the emperor of Japan, restrained of her liberty and detained at San
Francisco upon the ground that she should not be permitted to land
in the United States.
The petitioner arrived at the port of San Francisco on the steam-
ship Belgic, from Yokohama, Japan, on May 7, 1891. William H.
Thornley, commissioner of immigration of the state of California,
and claiming to act under instructions from and contract with the
Secretary of the Treasury of the United States, refused to allow
her to land; and the collector wrote to Thornley, approving his
action.
612
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
Thereafter, on May 13, 1891, this writ of habeas corpus was is-
sued to Thornley, and he made the following return thereon: "In
obedience to the within writ I hereby produce the body of Nishimura
Ekiu, as within directed, and return that I hold her in my custody
by direction of the customs authorities of the port of San Fran-
cisco, Cal., under the provisions of the immigration act; that, by
an understanding between the United States attorney and the at-
torney for petitioner, said party will remain in the custody of the
Methodist Episcopal Japanese and Chinese Mission pending a final
disposition of the writ.” The petitioner remained at the mission
house until the final order of the Circuit Court.
Afterwards, and before a hearing, the following proceedings took
place: On May 16th the district attorney of the United States in-
tervened in opposition to the writ of habeas corpus, insisting that
the finding and decision of Thornley and the collector were final and
conclusive, and could not be reviewed by the court. John L. Hatch,
isaving been appointed on May 14th, by the Secretary of the Treasu-
ry, inspector of immigration at the port of San Francisco, on May
16th made the inspection and examination required by the act of
March 3, 1891, c. 551, 26 Stat. 1084 (U. S. Comp. St. 1901, p.
1294), entitled “An act in amendment to the various acts relative to
immigration and the importation of aliens under contract or agree-
inent to perform labor," and refused to allow tlie petitioner to land,
and made a report to the collector in the very words of Thornley's
report, except in stating the date of the act of Congress, under which
he acted, as March 3, 1891, instead of August 3, 1882; and, on
May 18th, Hatch intervened in opposition to the writ of habeas cor-
pus, stating these doings of his, and that upon said examination he
found the petitioner to be "an alien immigrant from Yokohama, em-
pire of Japan," and "a person without means of support, without
relatives or friends in the United States," and "a person unable to
care for herself, and liable to become a public charge, and there-
fore inhibited from landing under the provisions of said act of 1891,
and previous acts of which said act is amendatory," and insisting
that his finding and decision were reviewable by the superintendent
of immigration and the Secretary of the Treasury only.
At the hearing before the commissioner of the Circuit Court, the
petitioner offered to introduce evidence as to her right to land; and
contended that the act of 1891, if construed as vesting in the officers
named therein exclusive authority to determine that right, was in
so far unconstitutional, as depriving her of her liberty without due
process of law; and that by the Constitution she had a right to the
writ of habeas corpus, which carried with it the right to a determi-
nation by the court as to the legality of her detention, and therefore,
necessarily, the right to inquire into the facts relating thereto.
The commissioner excluded the evidence offered as to the peti-
tioner's right to land, and reported that the question of that right
i
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
613
had been tried and determined by a duly constituted and competent
tribunal having jurisdiction in the premises; that the decision of
Hatch, as inspector of immigration, was conclusive on the right of
the petitioner to land, and could not be reviewed by the court, but
only by the commissioner of immigration and the Secretary of the
Treasury; and that the petitioner was not unlawfully restrained of
her liberty.
On July 24, 1891, the Circuit Court confirmed its commissioner's
report, and ordered “that she be remanded by the marshal to the cus-
tody from which she has been taken, to wit, to the custody of J. L.
Hatch, immigration inspector for the port of San Francisco, to be
dealt with as he may find that the law requires, upon either the
present testimony before him, or that and such other as he may deem
proper to take.” The petitioner appealed to this court.
Mr. Justice GRAY, after stating the case, delivered the opinion of
the court.36
As this case involves the constitutionality of a law of the United
States, it is within the appellate jurisdiction of this court, notwith-
standing the appeal was taken since the act establishing Circuit Courts
of Appeals took effect. Act March 3, 1891, c. 517, § 5, 26 Stat. 827,
828, 1115 (U. S. Comp. St. 1901, p. 549).
It is an accepted maxim of international law that every sovereign
nation has the power, as inherent in sovereignty, and essential to
self-preservation, to forbid the entrance of foreigners within its do-
minions, or to admit them only in such cases and upon such con-
ditions as it may see fit to prescribe. Vat. Law Nat. lib. 2, $$ 94,
100; 1 Phillim. Int. Law (3d Ed.) c. 10, $ 220. In the United States
this power is vested in the national government, to which the Con-
stitution has committed the entire control of international relations,
in peace as well as in war. It belongs to the political department of
the government, and may be exercised either through treaties made
by the President and Senate, or through statutes enacted by Con-
gress, upon whom the Constitution lias conferred power to regulate
commerce with foreign nations, including the entrance of ships, the
importation of goods, and the bringing of persons into the ports
of the United States; to establish a uniform rule of naturalization ;
to declare war, and to provide and maintain armies and navies ;
and to make all laws which may be necessary and proper for carry-
ing into effect these powers and all other powers vested by the Con-
stitution in the government of the United States, or in any de-
partment or officer thereof. Const. art. 1, § 8; Head-Money Cases,
112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 798; Chae Chan Ping v.
U. S., 130 U. S. 581, 604-609, 9 Sup. Ct. 623, 32 L. Ed. 1068.
The supervision of the admission of aliens into the United States
may be intrusted by Congress either to the department of State, hav-
35 'The statement of the case is abridged and only a portion of the opinion
is printed.
014
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
ing the general management of foreign relations, or to the Depart-
ment of the Treasury, charged with the enforcement of the laws
regulating foreign commerce; and Congress has often passed acts
forbidding the immigration of particular classes of foreigners, and
has committed the execution of these acts to the Secretary of the
Treasury, to collectors of customs, and to inspectors acting under
their authority. See, for instance, Act March 3, 1875, C. 141, 18
Stat. 4.77 (U. S. Comp. St. 1901, p. 1285); Act Aug. 3, 1892, C.
376, 22 Stat. 214 (U. S. Comp. St. 1901, p. 1288); Act Feb. 23,
1887, c. 220, 24 Stat. 414; Act Oct. 19, 1888, c. 1210, 25 Stat. 566
(U. S. Comp. St. 1901, p. 1294); as well as the various acts for the
exclusion of the Chinese.
An alien immigrant, prevented from landing by any such officer
claiming authority to do so under an act of Congress, and there-
by restrained of his liberty, is doubtless entitled to a writ of habeas
corpus to ascertain whether the restraint is lawful. Chew Heong
v. U. S., 112 U. S. 536, 5 Sup. Ct. 255, 28 L. Ed. 770; U. S. v.
Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. 663, 31 L. Ed. 591; Wan
Shing v. U. S., 140 U. S. 424, 11 Sup. Ct. 729, 35 L. Ed. 503; Lau
Ow Bew, Petitioner, 141 U. S. 583, 12 Sup. Ct. 43, 35 L. Ed. 868.
And Congress may, if it sees fit, as in the statutes in question in
U. S. v. Jung Ah Lung, just cited, authorize the courts to investi-
gate and ascertain the facts on which the right to land depends.
But, on the other hand, the final determination of those facts may
be intrusted by Congress to executive officers; and in such a case,
as in all others, in which a statute gives a discretionary power to
an officer, 'to be exercised by him upon his own opinion of certain
facts, he is made the sole and exclusive judge of the existence of
those facts, and no other tribunal, unless expressly authorized by
law to do so, is at liberty to re-examine or controvert the sufficiency
of the evidence on which he acted. Martin v. Mott, 12 Wheat. 19,
31, 6 L. Ed. 537; Railroad Co. v. Stimpson, 14 Pet. 448, 458, 10 L.
Ed. 535; Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. 1210, 32
L. Ed. 234; In re Luis Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct.
1031, 34 L. Ed. 464. It is not within the province of the judiciary
to order that foreigners who have never been naturalized, nor ac-
quired any domicile or residence within the United States, nor even
been admitted into the country pursuant to law, shall be permitted
to enter, in opposition to the constitutional and lawful measures of
the legislative and executive branches of the national government.
As to such persons, the decisions of executive or administrative offi-
cers, acting within powers expressly conferred by Congress, are due
process of law. Murray v. Hoboken Co., 18 How. 272, 15 L. Ed.
572; Hilton v. Merritt, 110 U. S. 97, 3 Sup. Ct. 548, 28 L. Ed.
83.
Before the hearing upon the writ of habeas corpus, Hatch was
appointed by the Secretary of the Treasury inspector of immigra-
*
*
Cl. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
615
tion at the port of San Francisco, and, after making the inspection
and examination required by the act of 1891, refused to allow the
petitioner to land, and made a report to the collector of customs,
stating' facts which tended to show, and which the inspector de-
cided did show, that she was a "person likely to become a public
charge," and so within one of the classes of aliens "excluded from
admission into the United States” by the first section of that act.
And Hatch intervened in the proceedings on the writ of liabeas
corpus, setting up his decision in bar of the writ.
A writ of habeas corpus is not like an action to recover damages
for an unlawful arrest or commitment, but its object is to ascertain
whether the prisoner can lawfully be detained in custody; and, if
sufficient ground for his detention by the government is shown, he
is not to be discharged for defects in the original arrest or commit-
ment. Ex parte Bollman, 4 Cranch, 75, 114, 125, 2 L. Ed. 554;
Coleman v. Tennessee, 97 U. S. 509, 519, 24 L. Ed. 1118; U. S.
v. McBratney, 104 U. S. 621, 624, 26 L. Ed. 869; Kelley v. Thomas,
15 Gray (Mass.) 192; King v. Marks, 3 East, 157;. Shuttleworth's
Case, 9 Q. B. 651.
The case must therefore turn on the validity and effect of the
action of Hatch as inspector of immigration.
Section y of the act of 1891 establishes the office of superintendent
of immigration, and enacts that he "shall be an officer in the Treas-
ury Department, under the control and supervision of the Secretary
of the Treasury." By section 8, “the proper inspection officers” are
required to go on board any vessel bringing alien immigrants, and
to inspect and examine them, and may for this purpose remove and
detain them on shore, without such removal being considered a land-
ing, and "shall have power to administer oaths, and to take and con-
sider testimony touching the right of any such aliens to enter the
United States, all of which shall be entered of record.” “All decisions
made by the inspection officers or their assistants touching the right
of any alien to land, when adverse to such right, shall be final unless
appeal be taken to the superintendent of immigration, whose action
shall be subject to review by the Secretary of the Treasury;" and
the Secretary of the Treasury may prescribe rules for inspectioni
along the borders of Canada, British Columbia, and Mexico, "pro-
vided that not exceeding one inspector shall be appointed for each
customs district."
It was also argued that Hatch's proceedings did not conform to
section 8 of the act of 1891, because it did not appear that he took
testimony on oath, and because there was no record of any testi-
mony or of his decision. But the statute does not require inspectors
to take any testimony at all, and allows them to decide on their own
inspection and examination the question of the right of any alien
immigrant to land. The provision relied on merely empowers in-
616
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
spectors to administer oaths, and to take and consider testimony,
and requires only testimony so taken to be entered of record.
The decision of the inspector of immigration being in conformity
with the act of 1891, there can be no doubt that it was final and
conclusive against the petitioner's right to land in the United States.
The words of section 8 are clear to that effect, and were manifestly
intended to prevent the question of an alien immigrant's right to
land, when once decided adversely by an inspector, acting within
the jurisdiction conferred upon him, from being impeached or re-
viewed, in the courts or otherwise, save only by appeal to the in-
spector's official superiors, and in accordance with the provisions of
the act. Section 13, by which the Circuit and District Courts of the
United States are “invested with full and concurrent jurisdiction
of all causes, civil and criminal, arising under any of the provisions
of this act, evidently refers to causes of judicial cognizance, al-
ready provided for, whether civil actions in the nature of debt for
penalties under sections 3 and 4, or indictments for misdemeanors
under sections 6, 8, and 10. Its intention was to vest concurrent ju-
risdiction of sucli causes in the Circuit and District Courts, and it
is impossible to construe it as giving the courts jurisdiction to de-
termine matters which the act has expressly committed to the final
determination of executive officers.
The result is that the act of 1891 is constitutional and valid; the
inspector of immigration was duly appointed; his decision against
the petitioner's right to land in the United States was within the
authority conferred upon him by that act; no appeal having been
taken to the superintendent of immigration, that decision was final
and conclusive; the petitioner is not unlawfully restrained of her
liberty; and the order of the Circuit Court is affirmed.36
Mr. Justice BREWER dissented.
36 See Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. 967, 39
L. Ed. 1082 (1895), where the administrative jurisdiction was held to be ex-
clusive with reference to the right of re-entry of an alien who had been dom-
iciled in the United States, and had temporarily left the country.
The Chinese exclusion acts provided for a judicial hearing (United States
v. Jung Ab Lung, 124 U. S. 621, 8 Sup. Ct. 663, 31 L. Ed. 591, [1888]), until
by Act Aug. 18, 1894, c. 301, 28 Stat. 390 (U. S. Comp. St. 1901, p. 1303), the
administrative determination was made conclusive as to all aliens; but this
did not apply to the provision for the removal of a Chinese person found to
be unlawfully in the United States. Chin Bak Kan v. U. S., 186 U. S. 193,
22 Sun. Ct. 891, 46 L. Ed. 1121 (1902).
That an alien may be summarily deported, see Yamataya v. Fisher, 189
U. S. 86, 23 Sup. Ct. 611, 47 L. Ed. 721 (1903).
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
617
DEBATE IN THE HOUSE OF LORDS, AUGUST 3, 1905, ON
ALIENS' BILL.
(Hansard, vol. 151, p. 7.)
Lord Coleridge moved to omit the appeal by the immigrant to
the immigration board, and to substitute "to the court of summary
jurisdiction at the port, and that court shall, if they are satisfied
that leave to land should not be withheld under this act, give leave
to land, and any person aggrieved by an order, judgment, or de-
termination of such court may appeal in manner provided by the
summary jurisdiction acts to a court of quarter sessions." The sub-
stance of this amendment was to substitute a court of summary ju-
risdiction for the immigration board. In that he was following
the proposals of the majority report of the commission, in which
they recommended that the alien immigrant who, within two years
of his arrival, was ascertained or was reasonably supposed to be
under the various headings might be ordered by a court of summary:
jurisdiction to leave this country. Under the bill the decision would
lie first of all with the immigrant officer, who, of course, would be
a man of no judicial experience. The only appeal then was to an
immigration board, consisting of three persons appointed by the Sec-
retary of State.
The questions which this board would have to decide were very
grave and very intricate. They would have to decide on the supposed
lunacy of an immigrant; they would have to decide on the very
nice question as to whether the offense which was supposed to have
been committed was or was not of a political character, a matter
which called for the exercise of a judicial decision; they would also
have to decide under the succeeding subsection whether or not he
was coming to this country to avoid prosecution on religious or
political grounds, another very nice question. All these questions
would have to be decided, according to the provisions of the bill,
by a board which had no judicial character at all. There was no
provision in the bill to insure the proceedings before this immigra-
tion board being on oath. They knew that the Secretary of State
might provide rules, but they did not know what those rules would
be. The amendment would not in any sense interfere with the main
object of the bill. It was only an administrative alteration, and did
not in any way go to the root and principle of the bill; and as it
had been recommended by the commission he hoped the noble and
learned Lord who presided over that body would give him his sup-
port. He thought that the alien, before he was prevented from land-
ing, should know that he had been considered an undesirable alien
by a proper court judically constituted.
Lord Belper hoped the House would not accept the amendment.
The board would have no question of law to deal with,
*
*
*
618
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
but questions of fact, of which absolute legal proof might be impossi-
ble. The Secretary of State had insured, as far as he could, that one
of those who were appointed on the board should be a magistrate,
and it was intended that as far as possible a magistrate should be
the chairman. The two other members were to be, as far as could
be arranged, men of business and administrative experience. If the
amendment of the noble and learned Lord were carried, it would
make the bill practically unworkable. In the first instance the mat-
ter would have to go to a court of summary jurisdiction; but if
there was to be an appeal to quarter sessions, as in all cases of dis-
pute there would be, that might mean a delay of two or three months.
What was to be done with the alien who was landed for the pur-
pose of this inquiry during that time? It would make the bill un-
workable if the decision in his case were to be delayed for any such
length of time as that. For that reason, and because His Majesty's
government thought the body suggested by the bill would be a prop-
er one for the purpose, he could not accept the amendment.
The proposed amendment was rejected by a vote of 68 to 16.
SECTION 178.-SAME-QUESTION OF ALIENAGE AS QUES-
TION OF LAW
GONZALES v. WILLIAMS.
(Supreme Court of United States, 1904. 192 U. S. 1, 24 Sup. Ct. 171, 48 L.
Ed. 317.)
Appeal from the Circuit Court of the United States for the South-
ern District of New York to review an order dismissing a writ of
habeas corpus to inquire into the detention by the immigration com-
missioner of a native of Porto Rico at the port of New York as an
alien immigrant. Reversed and remanded, with directions to discharge
the iinmigrant.
Mr. Chief Justice FULLER delivered the opinion of the court.37
This is an appeal by Isabella Gonzales from an order of the Cir-
cuit Court of the United States for the Southern District of New
York, dismissing a writ of habeas corpus issued on her behalf, aná
remanding her to the custody of the United States commissioner of
immigration at the port of New York. 118 Fed. 941.
Isabella Gonzales, an unmarried woman, was born and resided in
Porto Rico, and was an inhabitant thereof on April 11, 1899, the
date of the proclamation of the Treaty of Paris (30 Stat. 1754). She
37 Only a portion of the opinion of Fuller, C. J., is printed.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
619
ers:
arrived at the port of New York from Porto Rico August 24, 1902,
wlien she was prevented from landing, and detained by the immi-
gration commissioner at that port as an “alien immigrant,” in order
that she might be returned to Porto Rico if it appeared that she
was likely to become a public charge.
If she was not an alien immigrant within the intent and meaning of
the act of Congress entitled “An act in amendment to the various
acts relative to immigration and the importation of aliens under con-
tract or agreement to perform labor," approved March 3, 1891 (26
Stat. 1084, c. 551 [U. S. Comp. St. 1901, pp. 1294, 1296]), the com-
missioner had no power to detain or deport her, and the final order
of the Circuit Court must be reversed.
The act referred to contains these provisions :
"That the following classes of aliens shall be excluded from admis-
sion into the United States, in accordance with the existing acts
regulating immigration, other than those concerning Chinese labor-
All idiots, insane persons, paupers, or persons likely to become
a public charge.
“Sec. 8. That, upon the arrival by water at any place within the
United States of any alien immigrants it sliall be the duty of the
commanding officer and the agents of the steam or sailing vessel by
which they came to report the name, nationality, last residence, and
destination of every such alien, before any of them are landed, to
the proper inspection officers.
All decisions made by the
inspection officers or their assistants touching the right of any alien
to land, when adverse to such right, shall be final, unless appeal be
taken to the superintendent of immigration, whose action shall be
subject to review by the Secretary of the Treasury. It shall be the
cluty of the aforesaid officers and agents of such vessel to adopt dué
precautions to prevent the landing of any alien immigrant at any
place or time other than that designated by the inspection officers,
and any such officer or agent or person in charge of such vessel
who shall either knowingly or negligently land, or permit to land,
any alien immigrant at any place or time other than that designated
by the inspection officers, shall be deemed guilty of a misdemean-
*
*
01.
“Sec. 10. That all aliens who may unlawfully come to the United
States shall, if practicable, be immediately sent back on the vessel
by which they were brought in.
"Sec. 11. That any alien who shall come into the United States in
violation of law may be returned as by law provided.
The treaty ceding Porto Rico to the United States was ratified by
the Senate February 6, 1899; Congress passed an act to carry out
its obligations March 2, 1899 (30 Stat. 993, C. 376); and the rati-
fications were exchanged and the treaty proclaimed April 11, 1899
(30 Stat. 1754). Then followed the act entitled "An act temporarily
to provide revenues and a civil government for Porto Rico, and
620
(Part 2
RELIED AGAINST ADMINISTRATIVE ACTION.
for other purposes," approved April 12, 1900. 31 Stat. 79, c. 191.
*
By section the inhabitants of Porto Rico, who were Spanish
subjects on the day the treaty was proclaimed, including Spaniards
of the Peninsula who had not elected to preserve their allegiance to
the Spanish crown, were to be deemed citizens of Porto Rico, and
they and citizens of the United States residing in Porto Rico were
constituted a body politic under the name of the People of Porto
Rico.
Gonzales was a native inhabitant of Porto Rico and a Spanish
subject, though not of the Peninsula, when the cession transferred
her allegiance to the United States, and she was a citizen of Porto
Rico under the act. And there was nothing expressed in the act, nor
reasonably to be implied therefrom, to indicate the intention of Con-
gress that citizens of Porto Rico should be considered as aliens,
and the right of free access denied to them.
Counsel for the government contends that the test of Gonzales'
rights was citizenship of the United States, and not alienage. We
do not think so, and, on the contrary, are of opinion that, if Gonzales
were not an alien within the act of 1891, the order below was errone-
Ous.
Conceding to counsel that the general term "alien," "citizen," "sub-
ject," are not absolutely inclusive, or completely comprehensive, and
that, therefore, neither of the numerous definitions of the term "alien"
is necessarily controlling, we, nevertheless, cannot concede, in view
of the language of the treaty and of the act of April 12, 1900, that
the word "alien," as used in the act of 1891, embraces the citizens
of Porto Rico.
We are not required to discuss the power of Congress in the prem-
ises; or the contention of Gonzales' counsel that the cession of Porto
Rico accomplished the naturalization of its people; or that of Com-
missioner Degetau, in his excellent argument as amicus curiæ, that a
citizen of Porto Rico, under the act of 1900, is necessarily a citizen
of the United States. The question is the narrow one whether Gon-
zales was an alien within the meaning of that term as used in the
act of 1891.
The act excludes from admission into the United States, "in ac-
cordance with the existing acts regulating immigration other than
those concerning Chinese laborers," certain classes of "aliens" or
"alien immigrants" arriving at any place within the United States,
in respect of all of whom it is required that the commanding officer
and agents of the vessel by which they come shall report the name,
nationality, last residence and destination before any are landed.
The decisions of the inspection officers adverse to the right to land
are made final unless an appeal is taken to the superintendent of
immigration, whose action is subject to review by the Secretary of
the Treasury; and all aliens who unlawfully come into the United
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
621
*
States in violation of law shall be immediately, if practicable, sent
back, or may be returned as by law provided.
We think it clear that the act relates to foreigners as respects
this country, to persons owing allegiance to a foreign government,
and citizens or subjects thereof, and that citizens of Porto Rico, whose
permanent allegiance is due to the United States, who live in the
peace of the dominion of the United States, the organic law of whose
domicile was enacted by the United States, and is enforced through
officials sworn to support the Constitution of the United States, are
not "aliens," and upon their arrival by water at the port of our main-
land are not "alien immigrants," within the intent and meaning of
the act of 1891.
And in the present case, as Gonzales did not come within the act
of 1891, the commissioner had no jurisdiction to detain and deport
her by deciding the mere question of law to the contrary; and she
was not obliged to resort to the superintendent or the Secretary.
Our conclusion is not affected by the provision in the sundry civil
act of August 18, 1894 (28 Stat. 372, 390, C. 301 [U. S. Comp. St.
1901, p. 1303]), in relation to the finality of the decision of the appro-
priate immigration or custom officers, or the similar provision in
the act "to regulate the immigration of aliens into the United States,"
approved March 3, 1903 (32 Stat. 1213, c. 1012 [U. S. Comp. St.
Supp. 1903, p. 170]). The latter act was approved after the Gon-
zales litigation was moved, but it is worthy of notice that the words
"United States” as used in the title and throughout the act were re-
quired to be construed to mean "the United States and any waters,
territory, or other place now subject to the jurisdiction thereof."
Section 33. The definition indicates the view of Congress on the gen-
eral subject.
Gonzales was not a passenger from a foreign port, and was a
passenger "from territory or other place" subject to the jurisdic-
tion of the United States.
In order to dispose of the case in hand, we do not find it nec-
essary to review the Chinese exclusion acts and the decisions of this
court thereunder.
Final order reversed, and cause remanded, with a direction to
discharge Gonzales.
622
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
SECTION 79.-SAME-QUESTION OF ALIENAGE AS QUES-
TION OF FACT
UNITED STATES V. SING TUCK et al.
(Supreme Court of United States, 1904. 194 U. S. 161, 24 Sup. Ct. 621, 48
L. Ed. 917.)
On writ of certiorari to the United States Circuit Court of Appeals
for the Second Circuit to review a judgment which reversed a judg-
ment of the Circuit Court for the Northern District of New York
dismissing a writ of habeas corpus to inquire into a detention of
Chinese persons seeking to enter the United States, and claiming
citizenship therein. Reversed.
Mr. Justice HOLMES delivered the opinion of the court.
This is a writ of habeas corpus against a Chinese inspector and
inspector of immigration. It appears from his return that the Chi-
nese persons concerned came from China by way of Canada, and
were seeking admission into the United States. On examination by
an inspector five gave their names, stated that they were born in the
United States (United States v. Wong Kim Ark, 169 U. S. 619,
18 Sup. Ct. 456, 42 L. Ed. 890), and answered no further questions.
The rest gave their names and then stood mute, not even alleging
citizenship. The inspector decided against their right to enter the
country, and informed them of their right to appeal to the Secre-
tary of Commerce and Labor. No appeal was taken, and while they
were detained at a properly designated detention house for return
to China, a petition was filed by a lawyer purporting to act on their
behalf, alleging that they all were citizens of the United States,
and this writ was obtained. In the Circuit Court the detention was
adjudged to be lawful, and the writ was dismissed without a trial
on the merits. This decision was reversed by the Circuit Court of
Appeals on the ground that the parties concerned were entitled to a
judicial investigation of their status.
By Act August 18, 1894, c. 301, 28 Stat. 390 (U. S. Comp. St.
1901, p. 1303), "in every case where an alien is excluded from admis-
sion into the United States under any law or treaty now existing
or hereafter made, the decision of the appropriate immigration or
customs officers, if adverse to the admission of such alien, shall be
final, unless reversed on appeal to the Secretary of the Treasury.”
The jurisdiction of the Treasury Department was transferred to the
Department of Commerce and Labor by Act Feb. 14, 1903, c. 552,
32 Stat. 825 (U. S. Comp. St. Supp. 1909, p. 87). It was held by
the Circuit Court of Appeals that the act of 1894 should not be con-
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
623
strued to submit the right of a native-born citizen of the United
States to return hither to the final determination of executive offi-
cers, and the conclusion was assumed to follow that these cases should
have been tried on their merits. Before us it was argued that, by
the construction of the statute, the fact of citizenship went to the
jurisdiction of the immigration officers (see Gonzales v. Williams,
192 U. S. 1, 7, 24 Sup. Ct. 1977, 48 L. Ed. 317; Miller v. Horton,
152 Mass. 540, 548, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep.
850), and therefore that the statute did not purport to apply to one
who was a citizen in fact. We are of opinion, however, that the
words quoted apply to a decision on the question of citizenship, and
that, even if it be true that the statute could not make that deci-
sion final, the consequence drawn by the Circuit Court of Appeals
does not follow, and is not correct.
We shall not argue the meaning of the words of the act. That
must be taken to be established. Lem Moon Sing v. United States,
158 U. S. 538, 546, 547, 15 Sup. Ct. 967, 39 L. Ed. 1082, 1085. As
to whether or not the act could make the decision of an executive
officer final upon the fact of citizenship, we leave the question where
we find it. Japanese Immigrant Case, 189 U. S. 86, 97, 23 Sup. Ct.
611, 47 L. Ed. 721, 724; Fok Young Yo v. United States, 185 U.
S. 296, 304, 305, 22 Sup. Ct. 686, 46 L. Ed. 917, 921. See Chin
Bak Kan v. United States, 186 U. S. 193, 200, 22 Sup. Ct. 891, 46 L.
Ed. 1121, 1126. Whatever may be the law on that point, the deci-
sions just cited are enough to show that it is too late to contend
that the act of 1894 is void as a whole. But if the act is valid, even
if ineffectual on this single point, then it points out a mode of pro-
cedure which must be followed before there can be a resort to the
courts. In order to act at all the executive officer must decide upon
the question of citizenship. If his jurisdiction is subject to being
upset, still it is necessary that he should proceed if he decides that
it exists. An appeal is provided by the statute. The first mode of
attacking his decision is by taking that appeal. If the appeal fails,
it then is time enough to consider whether, upon a petition showing
reasonable cause, there ought to be a further trial upon habeas cor-
pus.
We perfectly appreciate, while we neither countenance nor dis-
countenance, the argument drawn from the alleged want of juris-
diction. But while the consequence of that argument, if sound, is
that both executive officers and Secretary of Commerce and Labor
are acting without authority, it is one of the necessities of the ad-
ministration of justice that even fundamental questions should be
determined in an orderly way. If the allegations of a petition for
habeas corpus setting up want of jurisdiction, whether of an
ecutive officer or of an ordinary court, are true, the petitioner the-
oretically is entitled to his liberty at once. Yet a summary inter-
ruption of the regular order of proceedings, by means of the writ,
ex-
624
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
is not always a matter of right. A familiar illustration is that of a
person imprisoned upon criminal process by a state court, under a
state law alleged to be unconstitutional. If the law is unconstitu-
tional the prisoner is wrongfully held. Yet, except under exceptional
circumstances, the courts of the United States do not interfere by
habeas corpus. The prisoner must, in the first place, take his case
to the highest court of the state to which he can go, and after that
he generally is left to the remedy by writ of error if he wishes to
bring the case here. Minnesota v. Brundage, 180 U. S. 499, 21
Sup. Ct. 455, 45 L. Ed. 639. Baker v. Grice, 169 U. S. 284, 18 Sup.
Ct. 323, 42 L. Ed. 748. In Gonzales v. Williams, 192 U. S. 1, 24
Sup. Ct. 179, 48 L. Ed. 317, there was no use in delaying the issue
of the writ until an appeal had been taken, because in that case there
was no dispute about the facts, but merely a question of law. Here
the issue, if there is one, is pure matter of fact-a claim of citizen-
ship under circumstances and in a form naturally raising a suspicion
of fraud.
Considerations similar to those which we have suggested lead to
a further conclusion. Whatever may be the ultimate rights of a
person seeking to enter the country, and alleging that he is a citi-
zen, it is within the power of Congress to provide, at least, for a pre-
liminary investigation by an inspector, and for a detention of the
person until he has established his citizenship in some reasonable
way. If the person satisfies the inspector, he is allowed to enter
the country without further trial. Now, when these Chinese, hav-
ing that opportunity, saw fit to refuse it, we think an additional rea-
son was given for not allowing a habeas corpus at that stage. The
detention during the time necessary for investigation was not unlaw-
ful, even if all these parties were citizens of the United States, and
were not attempting to upset the inspection machinery by a transparent
device. Wong Wing v. United States, 163 U. S. 228, 235, 16 Sup.
Ct. 977, 41 L. Ed. 140. They were offered a way to prove their
alleged citizenship and to be set at large, which would be sufficient
for most people who had a case, and which would relieve the courts.
If they saw fit to refuse that way, they properly were held down
strictly to their technical rights.
But it is said that if, under any circumstances, the question of
citizenship could be left to the final decision of an executive officer,
the Chinese regulations made under the statutes by the Department
of Commerce and Labor are such that they do not allow a citizen
clue process of law, and the same argument is urged in favor of the
right to decline to take any part in such proceedings from the out-
set. The rules objected to require the officer to prevent communi-
cation with the parties other than by officials under his control, and
to have them examined promptly touching their right to admission.
The examination is to be apart from the public, in the presence of
the government officials and such witnesses only as the examining
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
625
officer shall designate. This last is the provision especially stigmatized.
It is said that the parties are allowed to produce only such wit-
nesses as are designated by the officer. But that is a plain perver-
sion of the meaning of the words. If the witnesses referred to are
not merely witnesses to the examination, if they are witnesses in
the cause, still the provision only excludes such witnesses at the
discretion of the officer pending the examination of the party con-
cerned-a natural precaution in this class of cases, the reasonable-
ness of which does not need to be explained. It is common in
ordinary trials. No right is given to the officer to exercise any
control or choice as to the witnesses to be heard, and no such choice
was attempted in fact. 'On the contrary, the parties were told that
if they could produce two witnesses who knew that they had the
right to enter, their testimony would be taken and carefully considered;
and various other attempts were made to induce the suggestion of
any evidence or help to establish the parties' case, but they stood mute.
The separate examination is another reasonable precaution, and it is
required to take place promptly, to avoid the hardship of a long de-
tention. In case of appeal counsel are permitted to examine the evi-
dence (rule 7), and it is implied that new evidence, briefs, affidavits,
and statements may be submitted, all of which can be forwarded with
the appeal (rule 9). The whole scheme is intended to give as fair a
chance to prove a right to enter the country as the necessarily sum-
inary character of the proceedings will permit.
We are of opinion that the attempt to disregard and override the
provisions of the statutes and the rules of the department, and to
swamp the courts by a resort to them in the first instance, must fail.
We may add that, even if it is beyond the power of Congress to make
the decision of the department final upon the question of citizenship,
we agree with the Circuit Court of Appeals that a petition for habeas
corpus ought not to be entertained unless the court is satisfied that the
petitioner can make out at least a prima facie case. A mere allega-
tion of citizenship is not enough. But, before the courts can be called
upon, the preliminary sifting process provided by the statutes must
be gone through with. Whether after that a further trial may be had
we do not decide.
Judgment reversed.
Mr. Justice BREWER and Mr. Justice PECKHAM dissented.
UNITED STATES V. JU TOY.
(Supreme Court of the United States, 1905. 198 U. S. 253, 25 Sup. Ct. 644,
49 L. Ed. 1040.)
On a certificate from the United States Circuit Court of Appeals
for the Ninth Circuit presenting the question whether habeas corpus
FR.ADM.LAW-40
626
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
should be granted in behalf of a person of Chinese descent whose
right to enter the United States has been denied by the immigration
officers and affirmed on appeal by the Secretary of Commerce and La-
bor, and citizenship is the only ground alleged as making the detention
unlawful, and whether, under such circumstances, the writ should bo
dismissed or a further hearing be granted, and whether the decision
of the Secretary of Commerce and Labor is conclusive, in the absence
of abuse of authority. The first question answered in the negative,
the third in the affirmative, and the second by stating that the writ
should be dismissed.
Mr. Justice HOLMES delivered the opinon of the court.
This case comes here on a certificate from the Circuit Court of Ap-
peals presenting certain questions of law. It appears that the appellee,
being detained by the master of the steamship Doric for return to
China, presented a petition for habeas corpus to the District Court,
alleging that he was a native-born citizen of the United States, return-
ing after a temporary departure, and was denied permission to land
by the collector of the port of San Francisco. It also appears from
the petition that he took an appeal from the denial, and that the deci-
sion was affirmed by the Secretary of Commerce and Labor. No fur-
ther grounds are stated. The writ issued, and the United States made
return, and answered, showing all the proceedings before the depart-
ment, which are not denied to have been in regular form, and setting
forth all of the evidence and the orders made. The answer also de-
nied the allegations of the petition. Motions to dismiss the writ were
made on the grounds that the decision of the Secretary was conclu-
sive, and that no abuse of authority was shown. These were denied,
and the District Court decided, seemingly on new evidence, subject to
exceptions, that Ju Toy was a native-born citizen of the United States.
An appeal was taken to the Circuit Court of Appeals, alleging errors
the nature of which has been indicated. Thereupon the latter court
certified the following questions :
"First. Should a District Court of the United States grant a writ of
habeas corpus in behalf of a person of Chinese descent being held for
return to China by the steamship company which brought him there-
from, who, having recently arrived at a port of the United States,
made application to land as a native-born citizen thereof, and who,
after examination by the duly authorized immigration officers, was
found by them not to have been born in the United States, was denied
admission, and ordered deported, which finding and action upon ap-
peal was affirmed by the Secretary of Commerce and Labor, when the
foregoing facts appear to the court, and the petition for the writ
alleges unlawful detention on the sole ground that petitioner does not
come within the restrictions of the Chinese exclusion acts, because
born in and a citizen of the United States, and does not allege or show
in any other way unlawful action or abuse of their discretion or pow-
ers by the immigration officers who excluded him?
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
627
"Second. In a habeas corpus proceeding should a District Court of
the United States dismiss the writ, or should it direct a new or further
hearing upon evidence to be presented where the writ had been granted
in behalf of a person of Chinese descent being held by the steamship
company for return to China, from whence it brought him, who re-
cently arrived from that country, and asked permission to land, upon
the ground that he was born in and was a citizen of the United States,
when the uncontradicted return and answer show that such person
was granted a hearing by the proper immigration officers, who found
he was not born in the United States, that his application for admission
was considered and denied by such officers, and that the denial was
affirmed upon appeal to the Secretary of Commerce and Labor, and
where nothing more appears to show that such executive officers failed
to grant a proper hearing, abused their discretion, or acted in any 1117-
lawful or improper way upon the case presented to them for deter-
mination ?
“Third. In a habeas corpus proceeding in a District Court of the
United States, instituted in behalf of a person of Chinese descent be-
ing held for return to China by the steamship company which recently
brought him therefrom to a port of the United States, and who ap-
plied for admission therein upon the ground that he was a native-born
citizen thereof, but who, after a hearing, the lawfully designated im-
migration officers found was not born therein, and to whom they de-
nied admission, which finding and denial, upon appeal to the Secre-
tary of Commerce and Labor, was affirmed-should the court treat the
finding and action of such executive officers upon the question of
citizenship and other questions of fact as having been made by a tri-
bunal authorized to decide the same, and as final and conclusive unless
it be made affirmatively to appear that such officers, in the case sub-
mitted to them, abused the discretion vested in them, or, in some other
way, in hearing and determining the same, committed prejudicial
error?'
We assume in what we have to say, as the questions assume, that 110
abuse of authority of any kind is alleged. That being out of the case,
the first of them is answered by the case of United States v. Sing
Tuck, 194 U. S. 161, 170, 24 Sup. Ct. 621, 48 L. Ed. 917, 921: “A pe-
tition for habeas corpus ought not to be entertained unless the court
is satisfied that the petitioner can make out at least a prima facie case."
This petition should have been denied on this ground, irrespective of
what more we have to say, because it alleged nothing except citizen-
ship. It disclosed neither abuse of authority nor the existence of evi-
dence not laid before the Secretary. It did not even set forth that
evidence, or allege its effect. But, as it was entertained, and the Di::-
trict Court found for the petitioner, it would be a severe measure to
order the petition to be dismissed on that ground now, and we pass
on to further considerations.
628
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
The broad question is presented whether or not the decision of the
Secretary of Commerce and Labor is conclusive. It was held in
United States v. Sing Tuck, 194 U. S. 161, 167, 24 Sup. Ct. 621, 48
L. Ed. 917, 920, that Act Aug. 18, 1894, c. 301, § 1, 28 Stat. 372, 390,
(U. S. Comp. St. 1901, p. 1303), purported to make it so, but whether
the statute could have that effect constitutionally was left untouched,
except by a reference to cases where an opinion already had been ex-
pressed.
on which
To quote the latest first, in Japanese Immigrant Case (Yamataya v.
Fisher) 189 U. S. 86, 97, 23 Sup. Ct. 611, 613, 47 L. Ed. 721, 724,
it was said: “That Congress may exclude aliens of a particular race
from the United States, prescribe the terms and conditions upon
certain classes of aliens may come to this country, establish regula-
tions for sending out of the country such aliens as come here in vio-
lation of law, and commit the enforcement of such provisions, condi-
tions, and regulations exclusively to executive officers, without judi-
cial intervention, are principles firmly established by the decisions of
this court." See, also, United States ex rel. Turner v. Williams, 194
U. S. 279, 290, 291, 24 Sup. Ct. 719, 48 L. Ed. 979, 983, 984; Chin
Bak Kan v. United States, 186 U. S. 193, 200, 22 Sup. Ct. 891, 46
L. Ed. 1121, 1125. In Fok Young Yo v. United States, 185 U. S. 296,
304, 305, 22 Sup. Ct. 686, 46 L Ed. 917, 921, it was held that the
decision of the collector of customs on the right of transit across the
territory of the United States was conclusive, and, still more to the
point, in Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct.
967, 39 L. Ed. 1082, where the petitioner for habeas corpus alleged
facts which, if true, gave him a right to enter and remain in the coun-
try, it was held that the decision of the collector was final as to wheth-
er or not he belonged to the privileged class.
It is true that it may be argued that these cases are not directly
conclusive of the point now under decision. It may be said that the
parties concerned were aliens, and that although they alleged absolute
rights, and facts which it was contended went to the jurisdiction of the
officer making the decision, still their rights were only treaty or stat-
utory rights, and therefore were subject to the implied qualification
imposed by the later statute, which made the decision of the collector
with regard to them final. The meaning of the cases, and the lan-
guage which we have quoted, is not satisfied by so narrow an interpre-
tation, but we do not delay upon them. They can be read.
It is established, as we have said, that the act purports to make the
decision of the department final, whatever the ground on which the
right to enter the country is claimed—as well when it is citizenship as
when it is domicile, and the belonging to a class excepted from the ex-
clusion acts. United States v. Sing Tuck, 194 U. S. 161, 167, 24 Sup.
Ct. 621, 48 L. Ed. 917, 920; Lem Moon Sing v. United States, 158
U. S. 538, 546, 547, 15 Sup. Ct. 967, 39 L. Ed. 1082. It also is es-
tablished by the former case and others which it cites that the rele-
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
629
vant portion of the act of August 18, 1894, c. 301, 28 Stat. 372 (U.
S. Comp. St. 1901, p. 1303) is not void as a whole. The statute has
been upheld and enforced. But the relevant portion being a single
section, accomplishing all its results by the same general words, must
be valid as to all that it embraces, or altogether void. An exception
of a class constitutionally exempted cannot be read into those general
words merely for the purpose of saving what remains. That has been
decided over and over again. United States v. Reese, 92 U. S. 214,
221, 23 L. Ed. 563, 565; Trade-Mark Cases, 100 U. S. 82, 98, 99, 25
L. Ed. 550, 553, 554; Allen v. Louisiana, 103 U. S. 80, 84, 26 L. Ed.
318, 319; United States v. Harris, 106 U. S. 629, 641, 642, 1 Sup. Ct.
601, 27 L. Ed. 290, 294, 295; Poindexter v. Greenhow, 114 U. S. 270,
305, 5 Sup. Ct. 903, 962, 29 L. Ed. 185, 197; Baldwin y. Franks, 120
U. S. 678, 685–689, 7 Sup. Ct. 656, 763, 30 L. Ed. 766, 768, 769;
Smiley v. Kansas, 196 U. S. 447, 455, 25 Sup. Ct. 289, 49 L. Ed. 546.
It necessarily follows that when such words are sustained, they are
sustained to their full extent.
In view of the cases which we have cited it seems no longer. open to
discuss the question propounded as a new one. Therefore we do not
analyze the nature of the right of a person presenting himself at the
frontier for admission. In re Ross (Ross v. McIntyre), 140 U. S. 453,
464, 11 Sup. Ct. 897, 35 L. Ed. 581, 586. But it is not improper to
add a few words. The petitioner, although physically within our
boundaries, is to be regarded as if he had been stopped at the limit of
our jurisdiction, and kept there while his right to enter was under
debate. If, for the purpose of argument, we assume that the fifth
amendment applies to him, and that to deny entrance to a citizen is to
deprive him of liberty, we nevertheless are of opinion that with re-
gard to him due process of law does not require judicial trial. That is
the result of the cases which we have cited, and the almost necessary
result of the power of Congress to pass exclusion laws. That the de-
cision may be intrusted to an executive officer, and that his decision
is due process of law, was affirmed and explained in Nishimura Ekiu
v. United States, 142 U. S. 651, 660, 12 Sup. Ct. 336, 35 L. Ed. 1146,
1149, and in Fong Yue Ting v. United States, 149 U. S. 698, 713, 13
Sup. Ct. 1016, 37 L. Ed. 905, 913, before the authorities to which we
already have referred. It is unnecessary to repeat the often-quoted re-
marks of Mr. Justice Curtis, speaking for the whole court in Den
ex dem. Murray v. Hoboken Land & Improv. Co., 18 How. 272, 280,
15 L. Ed. 372, 376, to show that the requirement of a judicial trial
does not prevail in every case. Lem Moon Sing v. United States, 158
U. S. 538, 546, 547, 15 Sup. Ct. 967, 39 L Ed. 1082, 1085; Japanese
Immigrant Case (Yamataya v. Fisher), 189 U. S. 86, 100, 23 Sup. Ct.
611, 47 L. Ed. 721, 725; Public Clearing House v. Coyne, 194 U. S.
497, 508, 509, 24 Sup. Ct. Rep. 789, 48 L. Ed. 1092, 1098.
We are of opinion that the first question should be answered, no;
that the third question should be answered, yes, with the result that
630
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
the second question should be answered that the writ should be dis-
missed, as it should have been dismissed in this case.
It will be so certified.
Mr. Justice BREWER dissented.
CHIN YOW v. UNITED STATES.
(Supreme Court of the United States, 1908. 208 U. S. 8, 28 Sup. Ct. 201,
52 L. Ed. 369.)
Appeal from the District Court of the United States for the North-
ern District of California to review an order denying the petition for
a writ of habeas corpus in behalf of a Chinese person in the custody
of a steamship company for deportation. Reversed with directions
to issue the writ.
Mr. Justice HOLMES delivered the opinion of the court.
This is a petition for habeas corpus by a Chinese person, alleging
that he is detained unlawfully by the general manager of the Pacific
Mail Steamship Company on the ground that he is not entitled to
enter the United States. The petition alleges that the petitioner is a
resident and citizen of the United States, born in San Francisco of
parents domiciled there, but it discloses that the commissioner of im-
migration at the port of San Francisco, after a hearing, denied his
right to land, and that the Department of Commerce and Labor af-
firmed the decision on appeal. The petitioner thereupon was placed
in custody of the steamship company to be sent to China. So far the
case is within United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644,
49 L. Ed. 1040, and the petition was dismissed for want of jurisdic-
tion (presumably on the ground of that decision), as sufficiently ap-
pears from the record, the reasons assigned for the appeal, and the
order allowing the same,
But the petition further alleges that the petitioner was prevented
by the officials of the commisioner from obtaining testimony, including
that of named witnesses, and that had he been given a proper oppor-
tunity he could have produced overwhelming evidence that he was
born in the United States and remained there until 1904, when he
departed to China on a temporary visit. We do not scrutinize the alle-
gations as if they were contained in a criminal indictment before the
court upon a special demurrer, but without further detail read them
as importing that the petitioner arbitrarily was denied such a hearing,
and such an opportunity to prove his right to enter the country, as
the statute meant that he should have. The question is whether he
is entitled to a writ of habeas corpus on such a case as that.
Of course, if the writ is granted, the first issue to be tried is the
truth of the allegations last mentioned. If the petitioner was not
denied a fair opportunity to produce the evidence that he desired, or
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL. 631
a fair though summary hearing, the case can proceed no farther. Those
facts are the foundation of the jurisdiction of the District Court, if
it has any jurisdiction at all. It must not be supposed that the mere
allegation of the facts opens the merits of the case, whether those
facts are proved or not. And, by way of caution, we may add that
jurisdiction would not be established simply by proving that the com-
missioner and the Department of Commerce and Labor did not ac-
cept certain sworn statements as true, even though no contrary or im-
peaching testimony was adduced. But, supposing that it could be
shown to the satisfaction of the district judge that the petitioner had
been allowed nothing but the semblance of a hearing, as we assume
to be alleged, the question is, we repeat, whether habeas corpus may
not be used to give the petitioner the hearing that he has been denied.
The statutes purport to exclude aliens only. They create or recog-
nize, for present purposes it does not matter which, the right of citi-
zens outside the jurisdiction to return to the United States. If one
alleging himself to be a citizen is not allowed a chance to establish
his right in the mode provided by those statutes, although that mode
is intended to be exclusive, the statutes cannot be taken to require him
to be turned back without more. The decision of the department
is final, but that is on the presupposition that the decision was after
a hearing in good faith, however summary in form. As between the
substantive right of citizens to enter and of persons alleging them-
selves to be citizens to have a chance to prove their allegation, on the
one side, and the conclusiveness of the commissioner's fiat, on the
other, when one or the other must give way, the latter must yield.
In such a case something must be done, and it naturally falls to be
done by the courts. In order to decide what, we must analyze a little.
If we regard the petitioner, as in Ju Toy's Case it was said that he
should be regarded, as if he had been stopped and kept at the limit
of our jurisdiction (198 U. S. 263, 25 Sup. Ct. 644, 49 L. Ed. 1044),
still it would be difficult to say that he was not imprisoned, theoretic-
ally as well as practically, when to turn him back meant that he must
get into a vessel against his wish and be carried to China. The case
would not be that of a person simply prevented from going in one
direction that he desired and had a right to take, all others being left
open to him, a case in which the judges were not unanimous in Bird
v. Jones, 17 Q. B. 742. But we need not speculate upon niceties. It
is true that the petitioner gains no additional right of entrance by
being allowed to pass the frontier in custody for the determination of
his case. But, on the question whether he is wrongly imprisoned,
we must look at the actual facts. De facto he is locked up until car-
ried out of the country against his will.
The petitioner then is imprisoned for deportation without the pro-
cess of law to which he is given a right. Habeas corpus is the usual
remedy for unlawful imprisonment. But, on the other hand, as yet
the petitioner has not established his right to enter the country. He
632
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RELIEF AGAINST ADMINISTRATIVE ACTION.
is imprisoned only to prevent his entry, and an unconditional release
would make the entry complete without the requisite proof. The
courts must deal with the matter somehow, and there seems to be no
way so convenient as a trial of the merits before the judge. If the
petitioner proves his citizenship, a longer restraint would be illegal.
If he fails, the order of deportation would remain in force.
We recur in closing to the caution stated at the beginning, and add
that, while it is not likely, it is possible, that the officials misinterpreted
rule 6 as restricting the right to obtain witnesses which the petitioner
desired to produce, or rule 7, commented on in United States v. Sing
Tuck, 194 U. S. 161, 169, 170, 24 Sup. Ct. 621, 48 L. Ed. 917, 921,
as giving them some control or choice as to the witnesses to be heard.
But, unless and until it is proved to the satisfaction of the judge that
a hearing properly so called was denied, the merits of the case are not
open, and, we may add, the denial of a hearing cannot be established
by proving that the decision was wrong.
Order reversed. Writ of habeas corpus to issue.
Mr. Justice BREWER concurs in the result.
SECTION 80.-PUBLIC LANDS
UNITED STATES v. MINOR.
(Supreme Court of the United States, 1885. 114 U. S. 233, 5 Sup. Ct. 836,
29 L. Ed. 110.)
Appeal from the Circuit Court of the United States for the District
of California.
This is an appeal from a decree of the Circuit Court for the Dis-
trict of California, dismissing the bill of the United States on demur-
rer. The object of the bill was to set aside and annul a patent issued
by the United States to Minor, on January 5, 1876, for the N. W. 14
of section 18, township 6 N., range 2 E. of the Humboldt meridian.
The bill as originally filed made, in substance, the following allega-
tions :
· That said Minor, on the twenty-third day of October, 1874, filed
the declaratory statement in the land office necessary to give him a
right of pre-emption to the land, alleging that he had made a settle-
ment on it March 20 of that year; and on June 20, 1875, he made
the usual affidavit that he had so settled on the land in March of the
previous year; that he had improved it, built a house on it, and con-
tinued to reside on it from the time of said settlement, and had cul-
tivated about one acre of it. He also made affidavit, as the law re-
quired, that he had not so settled upon and improved the land with
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
633
any agreement or contract with any person by which the title he might
acquire would inure to the benefit of the latter. He also made oath
that he was not the owner of 320 acres of land in any state or terri-
tory in the United States. These affidavits being received by the reg-
ister and receiver as true, he paid the money necessary to perfect his
right, received of them the usual certificate, called a patent certificate,
on which there was issued to him at the General Land Office in due
time the patent which is now assailed.
The bill then charges that all these statements, made under oath be-
fore the land officers, were false and fraudulent; that defendant had
never made the settlement nor cultivation nor improvements men-
tioned; that he had never resided on the land, but during all the time
had lived and had his home in a village about 12 miles distant; and
that he had not made these proofs of settlement to appropriate the
land to his own use, but with intent to sell the same to some person
unknown to the plaintiff. It is also charged that defendant produced,
in corroboration of his own statement, the affidavit of a witness, one
Joseph Ohuitt, who testified to the settlement, improvement, and resi-
dence of defendant, all of which was false and fraudulent. It is then
alleged that by these false affidavits the land officers, supposing them
to be true, were deceived and misled into allowing said pre-emption
claim and issuing said patent, to the great injury of the United States.
The circuit and district judges have certified a division of opinion
on eight propositions of law, which they believe to arise out of this
demurrer, as follows: (1) Whether the frauds and perjury alleged
in the bill as the equitable grounds for vacating the patent in question
are frauds extrinsic and collateral to the matter tried and deterinined
in the land office upon which the patent issued, and constitute such
frauds as entitle the complainant to relief in a court of equity. (2)
Whether perjury and false testimony in a proceeding before the land
office, such as alleged in the said amended bill, by means of which a
patent to a portion of the public land is fraudulently and wrongfully
secured, is such a fraud as will require a court of equity to vacate the
patent on that ground alone. (3) Whether the decision and determi-
nation of the questions involved on false and perjured testimony, as set
forth in the said amended bill, and the issue of a patent thereon, are
not conclusive as against the United States on a bill filed to vacate the
patent, so issued.
MILLER, J.38 * The first three questions may be considered
together. If an individual or a corporation had been induced to part
with the title to land, or any other property, by such a fraud as that
set out in this bill, there would seem to be no difficulty in recovering it
back by appropriate judicial proceedings. If it was a sale and convey-
ance of land induced by fraudulent misrepresentation of facts which
*
88
nly a portion of this case is printed.
634
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
had no existence, on which the grantor relied, and had a right to rely,
and which were essential elements of the consideration, there would
be no hesitation in a court of equity giving relief; and where the title
remained in the possession of the fraudulent grantee, the court would
surely annul the whole transaction, and require a reconveyance of
the land to the grantor. The case presented to us by the bill is one
of unmitigated fraud and imposition, consummated by means of rep-
resentations on which alone the sale was made, every one of which
was false. The law and the rules governing these pre-emption sales
required in every instance the settlement and residence for a given time
on the land, the actual cultivation of a part of it, and building a house
on it. It required that the claimant should do this with a purpose of
acquiring real ownership for himself and not for another, nor with a
purpose to sell to another.
In the case as presented by this bill none of these things were done,
though the land officers were made to believe they were done by the
false representation of the defendant. It was a case where all the
requirements of the law were set at naught, evaded, and defied by
one stupendous falsehood, which included all the requirements on
which the right to secure the land rested. There can be no question
of the fraud, and its misleading effect on the officers of the govern-
ment, and, in a transaction between individuals, it makes a clear case
for relief.
Is there anything in the circumstance that these misrepresentations
were supported by perjury, that the defendant made oath to his false-
hoods, and procured a false affidavit of a witness to corroborate him-
self, which should deprive the injured party of relief? It would seem
rather to add to the force of the reasons for such relief that fraud and
falsehood were re-enforced by perjury.
Is there any reason to be found in the relation of the government
to such a case as this, which will deprive it of the same right to relief
as an individual would have? On the contrary, there are reasons why
the government in this class of cases should not be held to the same
diligence in guarding against fraud as a private owner of real estate.
The government owns millions and inillions of acres of land, which
are by law open to pre-emption, homestead, and public and private
sale. The right and the title to these lands are to be obtained from the
government only in accordance with fixed rules of law. For the more
convenient management of the sale of these lands, and the establish-
ment by individuals of the inchoate rights of pre-emption and home-
stead, and their final perfection in the issuing of a title called a pat-
ent, there is established in each land district an office in which are two
officers, and no more, called register and receiver. These districts
often include 20,000 square miles or more, in all parts of which the
lands of the government subject to sale, pre-emption, and homestead
are found. These officers do not, they cannot, visit these lands. They
have maps showing the location of the government lands, and their
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
635
subdivision into townships, sections, and parts of sections, and when
a person desires to initiate a claim to any of them, he goes before them
and makes the necessary statements, affidavits, and claims, of all which
they make memoranda and copies, which are forwarded to the Gen-
eral Land Office at Washington.
For the truth of these statements they are compelled to rely on the
oaths of the parties asserting claims, and such ex parte affidavits as
they may produce. In nine cases out of ten, perhaps in a much larger
percentage, the proceedings are wholly ex parte. In the absence of
any contesting claimant for a right to purchase or secure the land,
the party applying has it all his own way. He makes his own state-
ment, sworn to before those officers, and he produces affidavits. If
thiese affidavits meet the requirements of the law, the clainant suic-
ceeds, and what is required is so well known that it is reduced to a for-
mula. It is not possible for the officers of the government, except in a
few rare instances, to know anything of the truth or falsehood of these
statements. In the cases where there is no contesting claimant there
is no adversary proceeding whatever. The United States is passive;
opposes no resistance to the establishment of the claim, and makes
no issue on the statement of the claimant,
When, therefore, he succeeds by misrepresentation, by fraudulent
practices, aided by perjury, there would seem to be more reason why
the United States, as the owner of land of which it has been defrauded
by these means, should have remedy against that fraudmall the rem-
edy which the courts can give-than in the case of a private owner of
a few acres of land on whom a like fraud has been practiced.
In a suit brought by Moffat against the United States to set aside
a patent for land on the ground of fraud in procuring its issue, this
court said: "It may be admitted, as stated by counsel, that if, upon
any state of facts, the patent might have been lawfully issued, the court
will presume, as against collateral attack, that the facts existed; but
that presumption has no place in a suit by the United States directly
assailing the patent and seeking its cancellation for fraud in the con-
duct of those officers.” 112 U. S. 24, 5 Sup. Ct. 10, 28 L. Ed. 623.
The principle is equally applicable when those officers, though wholly
innocent, were imposed upon and deceived by the fraud and false
swearing of the party to whom the patent was issued
The learned judge whose opinion prevailed in the Circuit Court and
is found in the record, has been misled by confounding the present
case with that of U. S. y. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, and
Vance v. Burbank, 101 U. S. 514, 25 L. Ed. 929, and thus applying
principles to this which do not belong to it. In Throckmorton's Case,
it is true, a part of the relief sought was to set aside a patent for land
issued by the United States. But the patent was issued on the con-
firmation of a Mexican grant after proceedings prescribed by the act
of Congress on that subject. These proceedings were judicial. They
commenced before a board of commissioners. There were pleadings
636
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
and parties, and the claimant was plaintiff, and the United States was
the defendant. Both parties were represented by counsel—the United
States having in all such cases her regular district attorney to represent
her. Witnesses were examined in the usual way, by depositions, sub-
ject to cross-examinations, and not by ex parte affidavits. From this
tribunal there was a right of appeal to the district court, and from that
court to the Supreme Court of the United States, by either party.
There was nothing wanting to make such a proceedling, in the highest
sense, a judicial one, and to give to its final judgment or decree all the
respect, the verity, the conclusiveness, which belong to such a final de-
cree between the parties. The patent could only issue on this final
decree of confirmation of the Spanish or Mexican grant, and was, in
effect, but the execution of that decree.
It was to such a case as this that the ruling in Throckmorton's Case
was applied. The court said in that case, which was a bill to set aside
the decree of confirmation: "The genuineness and validity of the con-
cession from Michelterona, produced by complainant, was the single
question pending before the board of commissioners and the district
court for four years. It was the thing, and the only thing, that was
controverted, and it was essential to the decree. To overrule the de-
murrer to this bill would be to retry, twenty years after the decision
of those tribunals, the very matter which they tried, on the ground of
fraud in the document on which the decree was made. If we can do
this now, some other court may be called on twenty years hence to
retry the same matter on another allegation of fraudulent combination
in this suit to defeat the ends of justice; and so the number of suits
would be without limit and litigation endless about the single ques-
tion of the validity of this document."
It needs no other remarks than those we have already made, as to
the nature of the proceeding before the land officers, to show how
inappropriate this language is to suich a proceeding. Here no one
question was in issue. No issue at all was taken. No adversary pro-
ceeding was had. No contest was made. The officers, acting on such
evidence as the claimant presented, were bound by it and by the law to
issue a patent. They had no means of controverting its truth, and
the government had no attorney to inquire into it. Surely the doctrine
applicable to the conclusive character of the solemn judgments of
courts, with full jurisdiction over the parties and the subject matter,
made after appearance, pleadings, and contest by parties on both sides,
cannot be properly applied to the proceedings in the land office in such
cases.
So, also, as regards the case of Vance v. Burbank, 101 U. S. 514,
25 L. Ed. 929, the language of the court in regard to the conclusive-
ness of the decision of the land office must be considered with reference
to the case before it. That was not a case by the grantor, the United
States, to set aside the patent, but by a party, or the heirs of a party,
who had contested the right of the grantee before all the officers of
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL. 637
the land department up to the Secretary of the Interior, and been de-
feated, and where the whole question depended on disputed facts, the
evidence of which was submitted by the contestants to those officers.
In such a case, where there was full hearing, rehearing, and issues
made and tried, the observation of the court, that the decision of the
proper officers of the department is in the nature of a judicial de-
termination of the matter in dispute,” is well founded.
It has been often said by this court that the land officers are a special
tribunal of a quasi judicial character, and their decision on the facts
before them is conclusive. And we are not now controverting the
principle that where a contest between individuals, for the right to a
patent for public lands, has been brought before these officers, and both
parties have been represented and had a fair hearing, that those par-
ties are concluded as to all the facts thus in issue by the decision of the
officers. But in proceedings like the present, wholly ex parte, no con-
test, no adversary proceedings, no reason to suspect fraud, but where
the patent is the result of nothing but fraud and perjury, it is enough
to liold that it conveys the legal title, and it would be going quite too
far to say that it cannot be assailed by a proceeding in equity and set
aside as void, if the fraud is proved and there are no innocent holders
for value. We have steadily held that, though in the absence of fraud
the facts were concluded by the action of the land department, a mis-
construction of the law, by which alone the successful party obtained
a patent, might be corrected in equity; much more when there was
fraud and imposition.
If, by the case as made by the bill, Spence's claim had covered all
the land patented to Minor, it would present the question whether the
United States could bring this suit for Spence's benefit. The govern-
ment, in that case, would certainly have no interest in the land when
recovered, as it must go to Spence without any further compensa-
tion. And it may become a grave question, in some future case of
this character, how far the officers of the government can be permit-
ted, when it has no interest in the property or in the subject of the
litigation, to use its name to set aside its own patent, for which it has
received full compensation, for the benefit of a rival claimant. The
question, however, does not arise here, for half the land covered by
the patent would revert to the United States if it was vacated; and,
as between the United States and Minor it was one transaction evi-
denced by one muniment of title, the question does not arise; certainly
not on demurrer to this bill.
The result of these considerations is that the first and second ques-
tions are answered in the affirmative; the third, fourth, sixth, and sev-
enth in the negative; and the fifth is immaterial.
The decree of the Circuit Court is reversed, and the case remanded
for further proceeding not inconsistent with this opinion.39
39 Suit to cancel certificate of naturalization. U. S. V. Norsch (C. C.) 42
F'ed. 417 (1890).
638
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
NOBLE et al. v. UNION RIVER LOGGING R. CO.
*
(Supreme Court of United States, 1893. 147 U. S. 165, 13 Sup. Ct. 271, 37
L. Ed. 123.)
Appeal from the Supreme Court of the District of Columbia. Af-
firined.
This was a bill in equity by the Union River Logging Railroad Com-
pany to enjoin the Secretary of the Interior and the Commissioner of
the General Land Office from executing a certain order revoking the
approval of the plaintiff's maps for a right of way over the public
lands, and also from molesting plaintiff in the enjoyment of such right
of way secured to it under an act of Congress.
The bill averred, in substance, that the Union River Logging Rail-
road Company was organized March 20, 1883, under chapter 185 of
the Territorial Code of Washington, authorizing the formation of
"corporations for
the purpose of building, equipping, and
running railroads," etc. The articles declared the business and objects
of the corporation to be "the building, equipping, running, maintain-
ing, and operating of a railroad for the transportation of saw logs,
piles, and other timber, and wood and lumber, and to charge and re-
ceive compensation and tolls therefor,
from tide water in
Lynch's Cove, at the head of Hood's Canal, in said Mason county,
and running thence in a general northeasterly direction, by the most
practicable route, a distance of about ten miles, more or less," etc.
The capital stock of the company being subscribed, the company pro-
ceeded by degrees to construct and equip a road extending from tide
water in Lynch's Cove, about four miles along the line above men-
tioned, to transport saw logs and other lumber and timber. On Au-
gust 17, 1888, amended articles of incorporation were filed, "to con-
struct and equip a railroad and telegraph line” over a much longer
route, with branches, and "to maintain and operate said railroad and
branches, and carry freiglit and passengers, thereon, and receive tolls
therefor.” Also “to engage and carry on a general logging business,
and provide for the cutting, hauling, transportation, buying, owning,
acquiring, and selling of all kinds of logs, piles, poles, lumber, and tim-
ber."
In the spring of 1889, plaintiff proceeded to extend its line of road
for three miles beyond the point to which it had previously extended
it. It located at intervals a better line of road; made and ballasted a
new roadbed of standard gauge; and substituted steel rails and an-
other locomotive in place of those rails and equipments which had been
sufficient for its limited purposes, as specified in the original articles.
In January, 1889, the company desiring to avail itself of Act Cong.
March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568),
granting to railroads a right of way through the public lands of the
United States, filed with the register of the land office at Seattle a
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
639
copy of its articles of incorporation, a copy of the territorial law under
which the company was organized, and the other documents required
by the act, together with a map showing the termini of the road, its
length, and its route through the public lands according to the public
surveys. These papers were transmitted to the Commissioner of the
Land Office, and by him to the Secretary of the Interior, by whom they
were approved in writing, and ordered to be filed. They were accord-
ingly filed at once, and the plaintiff notified thereof.
On June 13, 1890, a copy of an order by the appellant, successor in
office to the Secretary of the Interior by whom the maps were ap-
proved, was served upon the plaintiff, requiring it to show cause why
said approval should not be revoked and annulled.
This was followed by an order of the acting Secretary of the In-
terior, annulling and canceling such maps, and directing the Com-
missioner of the Land Office to carry out the order.
The answer admitted all the allegations of fact in the bill, and aver-
red that it became known to the defendants that the plaintiff was not
engaged in the business of a common carrier of passengers and freight
at the time of its application, but in the transportation of logs for the
private use and benefit of the several persons composing the said com-
pany, and that, being advised that a railroad company carrying on a
merely private business was not such a railroad company as was con-
templated by the act of Congress, deemed it their duty to vacate and
annul the action of Mr. Vilas, then Secretary of the Interior, approv-
ing plaintiff's maps of definite location, and to that end caused the 110-
tice complained of in the bill to be served. They further claimed it to
be their duty to revoke and annul the action of the former Secretary
of the Interior as having been made improvidently, and on false sug-
gestions, and without authority under the statute.
Upon a hearing upon the bill, answer, and accompanying exhibits,
the court ordered a decree for the plaintiff, and an injunction as
prayed for in the bill. Defendants appealed to this court.
Mr. Justice BROWN, after stating the facts in the foregoing lan-
guage, delivered the opinion of the court.
This case involves not only the power of this court to enjoin the
head of a department, but the power of a Secretary of the Interior
to annul the action of his predecessor, when such action operates to
give effect to a grant of public lands to a railroad corporation.
1. With regard to the judicial power in cases of this kind, it was
held by this court as early as 1803, in the great case of Marbury v.
Madison, 1 Cranch, 137, that there was a distinction between acts in-
volving the exercise of judgment or discretion and those which are
purely ministerial; that, with respect to the former, there exists, and
can exist, no power to control the executive discretion, however erro-
neous its exercise may seem to have been; but with respect to min-
isterial duties, an act or refusal to act is, or may become, the subject
of review by the courts. The principle of this case was applied in
640
(Part 2
RELICT AGAINST ADMINISTRATIVE ACTION.
Kendall v. U. S., 12 Pet. 524, 9 L. Ed. 1181, and the action of the Cir-
cuit Court sustained in a proceeding where it had commanded the
Postmaster General to credit the relator with a certain sun awarded
to him by the Solicitor of the Treasury under an act of Congress au-
thorizing the latter to adjust the claim, this being regarded as purely
a ministerial duty. In Decatur v. Paulding, 14 Pet. 497, 10 L. Ed.
559, a mandamus was refused upon the same principle, to compel the
Secretary of the Navy to allow to the widow of Commodore Decatur
à certain pension and arrearages. Indeed, the reports of this court
abound with authorities to the same effect. Kendall v. Stokes, 3 How.
87, 11 L. Ed. 506; Brashear v. Mason, 6 How. 92, 12 L. Ed. 357;
Reeside v. Walker, 11 How. 272, 13 L. Ed. 693; Commissioner v.
Whiteley, 4 Wall. 522, 18 L. Ed. 335; U. S. v. Seaman, 17 How. 231,
15 L. Ed. 226; U. S. v. Guthrie, 17 How. 284, 15 L. Ed. 102; U. S.
v. Commissioner, 5 Wall. 563, 18 L. Ed. 892; Gaines v. Thompson, y
Wall. 347, 19 L. Ed. 62; Secretary v. McGarrahan, 9 Wall. 298, 19
L. Ed. 579; U. S. v. Schurz, 102 U. S. 378, 26 L. Ed. 167; Butter-
worth v. Hoe, 112 U. S. 50, 5 Sup. Ct. 25, 28 L. Ed. 656; U. S. v.
Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354. In all these cases
the distinction between judicial and ministerial acts is commented up-
on and enforced.
We have no doubt the principle of these decisions applies to a case
wherein it is contended that the act of the head of a department, un-
view that could be taken of the facts that were laid before
him, was ultra vires, and beyond the scope of his authority. If he
has no power at all to do the act complained of, he is as much subject
to an injunction as he would be to a mandamus if he refused to do an
act which the law plainly required him to do. As observed by Mr.
Justice Bradley in Board v. McComb, 92 U. S. 531, 541, 23 L. Ed.
623: "But it has been well settled that when a plain, official duty, re-
quiring no exercise of discretion, is to be performed, and performance
is refused, any person who will sustain personal injury by such refusal
may have a inandamus to compel its performance; and when such
duty is threatened to be violated by some positive official act, any per-
son who will sustain personal injury thereby, for which adequate com-
pensation cannot be had at law, may have an injunction to prevent it.
In such cases the writs of mandamus and injunction are somewhat
correlative to each other."
2. At the time the documents required by the act of 1875 were laid
before Mr. Vilas, then Secretary of the Interior, it became his duty
to examine them, and to determine, among other things, whether the
railroad authorized by the articles of incorporation was such a one as
was contemplated by the act of Congress. Upon being satisfied of this
fact, and that all the other requirements of the act had been observed,
he was authorized to approve the profile of the road, and to cause such
approval to be noted upon the plats in the land office for the district
where such land was located. When this was done, the granting sec-
der any
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
641
tion of the act became operative, and vested in the railroad company
a right of way through the public lands to the extent of 100 feet on
each side of the central line of the road. Frasher v. O'Connor, 115
U. S. 102, 5 Sup. Ct. 1141, 29 L. Ed. 311.
The position of the defendants in this connection is that the existence
of a railroad, with the duties and liabilities of a common carrier of
freight and passengers, was a jurisdictional fact, without which the
Secretary had no power to act, and that in this case he was imposed
upon by the fraudulent representations of the plaintiff, and that it was
competent for his successor to revoke the approval thus obtained; in
other words, that the proceedings were a nullity, and that his want
of jurisdiction to approve the map nay be set up as a defense to this
suit.
It is true that, in every proceeding of a judicial nature, there are
one or more facts which are strictly jurisdictional, the existence of
which is necessary to the validity of the proceedings, and without
which the act of the court is a mere nullity; such, for example, as the
service of process within the state upon the defendant in a common-
law action (D'Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648; Web-
ster v. Reid, 11 How. 437, 13 L. Ed. 761; Harris v. Hardeman, 14
How. 334, 14 L. Ed. 444; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed.
565; Borden v. Fitch, 15 Johns. [N. Y.] 141, 8 Am. Dec. 225); the
seizure and possession of the res within the bailiwick in a proceeding
in rem (Rose v. Himely, 4 Cranch, 241, 2 L. Ed. 608; Thompson v.
Whitman, 18 Wall. 457, 21 L. Ed. 897); a publication in strict ac-
cordance with the statute, where the property of an absent defendant
is sought to be charged (Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959;
Guaranty Trust & Safe Deposit Co. v. Green Cove Springs & M. R.
Co., 139 U. S. 137, 11 Sup. Ct. 512, 35 L. Ed. 116). So, if the court
appoint an administrator of the estate of a living person, or, in a case
where there is an executor capable of acting (Griffith v. Frazier, 8
Cranch, 9, 3 L. Ed. 471), or condemns as lawful prize a vessel that was
never captured (Rose v. Himely, 4 Cranch, 241, 269, 2 L. Ed. 608), or
a court-martial proceeds and sentences a person not in the military or
naval service (Wise v. Withers, 3 Cranch, 331, 2 L. Ed. 457), or the
land department issues a patent for land which has already been re-
served or granted to another person the act is not voidable merely,
but void. In these and similar cases the action of the court or officer
fails for want of jurisdiction over the person or subject-matter. The
proceeding is a nullity, and its invalidity may be shown in a collateral
proceeding.
There is, however, another class of facts which are termed "quasi
jurisdictional,” which are necessary to be alleged and proved in order
to set the machinery of the law in motion, but which, when properly al-
leged, and established to the satisfaction of the court, cannot be at-
tacked collaterally. With respect to these facts, the finding of the
FR.ADM. LAV-41
642
(Part 2
RELIEF AGAINST ADAIINISTRATIVE ACTION.
court is as conclusively presumed to be correct as its finding with re-
spect to any other matter in issue between the parties. Examples of
these are the allegations and proof of the requisite diversity of citizen-
ship, or the amount in controversy in a federal court, which, when
found by such court, cannot be questioned collaterally (Des Moines
Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 552, 8 Sup. Ct. 217,
31 L. Ed. 202; In re Sawyer, 124 U. S. 200, 220, 8 Sup. Ct. 482, 31
L. Ed. 402); the existence and amount of the debt of a petitioning
debtor in an involuntary bankruptcy (Michaels v. Post, 21 Wall. 398,
22 L. Ed. 520; Betts v. Bagley, 12 Pick. [Mass.] 572); the fact that
there is insufficient personal property to pay the debts of a decedent,
when application is made to sell his real estate (Comstock v. Craw-
ford, 3 Wall. 396,7 L. Ed. 189); Grignon's Lessee v. Astor, ? How.
319, 11 L. Ed. 283; Florentine v. Barton, 2 Wall. 210, 17 L. Ed. 783);
the fact that one of the heirs of an estate had reached his majority,
when the act provided that the estate should not be sold if all the
heirs were minors (Thompson v. Tolmie, 2 Pet. 157); and others of
a kindred nature, where the want of jurisdiction does not go to the
subject-matter or the parties, but to a preliminary fact necessary to
be proven to authorize the court to act. Other cases of this descrip-
tion are: Hudson v. Guestier, 6 Cranch, 281, 3 L. Ed. 224; Ex parte
Watkins, 3 Pet. 193, Y L. Ed. 650; U. S. v. De la Maza Arredondo,
6 Pet. 691, 709, 8 L. Ed. 547; Dyckman v. City of New York, 5 N.
Y. 434; Jackson v. Crawfords, 12 Wend. (N. Y.) 533; Jackson v.
Robinson, 4 Wend. (N. Y.) 436; Fisher v. Bassett, 9 Leigh (Va.) 119,
131, 33 Am. Dec. 227; Wright v. Douglass, 10 Barb. (N. Y.) 97, 111.
In this class of cases, if the allegation be properly made, and the ju-
risdiction be found by the court, such finding is conclusive and bind-
ing in every collateral proceeding; and, even if the court be imposed
upon by false testimony, its finding cằn only be impeached in a pro-
ceeding instituted directly for that purpose. Simms v. Slacun, 3
Cranch, 300, 2 L. Ed. 446.
This distinction has been taken in a large number of cases in this
court, in which the validity of land patents has been attacked collater-
ally, and it has always been held that the existence of lands subject to
be patented was the only necessary prerequisite to a valid patent. In
the one class of cases it is held that, if the land attempted to be pat-
ented had been reserved, or was at the time no part of the public do-
main, the land department had no jurisdiction over it, and no pow-
er or authority to dispose of it. In such cases its action in certifying
the lands under a railroad grant, or in issuing a patent, is not mere-
ly irregular, but absolutely void, and may be shown to be so in any
collateral proceeding. Polk's Lessee v. Wendal, 9 Cranch, 87, 3 L.
Ed. 665; Patterson v. Winn, 11 Wheat. 380, 6 L. Ed. 500; Jackson
v. Lawton, 10 Johns. (N. Y.) 23, 6 Am. Dec. 311; Minter v. Crom-
melin, 18 How. 87, 15 L. Ed. 279; Reichart v. Felps, 6 Wall. 160, 18
L. Ed. 819; Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566,
!
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
643
28 L. Ed. 1122; U. S. v. Southern Pac. Ry. Co., 146 U. S. 570, 13
Sup. Ct. 152, 36 L. Ed. 1091.
Upon the other hand, if the patent be for lands which the land de-
partment had authority to convey, but it was imposed upon, or was
induced by false representations to issue a patent, the finding of the de-
partment upon such facts cannot be collaterally impeached, and the
patent can only be avoided by proceedings taken for that purpose. As
was said in Smelting, etc., Co. v. Kemp, 104 U. S. 636, 640, 26 L Ed.
875: "In that respect they [the officers of the land department] exer-
cise a judicial function, and therefore it has been held in various in-
stances by this court that their judgment as to matters of fact, proper-
ly determinable by them, is conclusive when brought to notice in a col-
lateral proceeding. Their judgment in such cases is, like that of other
special tribunals upon matters within their exclusive jurisdiction, un-
assailable, except by a direct proceeding for its correction or annul-
ment.” In French v. Fyan, 93 U. S. 169, 23 L. Ed. 812, it was hell
that the action of the Secretary of the Interior identifying swamp
lands, making lists thereof, and issuing patents therefor, could not be
impeached in an action at law by showing that the lands which the
patent conveyed were not in fact swamp and overflowed lands, al-
though his jurisdiction extended only to lands of that class. Other
illustrations of this principle are found in Johnson v. Towsley, 13
Wall. 72, 20 L. Ed. 485; Moore v. Robbins, 96 U. S. 530, 24 L. Ed.
848; Steel v. Smelting, etc., Co., 106 U. S. 447, 1 Sup. Ct. 389, 27 L.
Ed. 226; Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800; Vance
v. Burbank, 101 U. S. 514, 25 L. Ed. 929; Hoofnagle v. Anderson,
7 Wheat. 212, 5 L. Ed. 437; Ehrhardt v. Hogaboom, 115 U. S. 67, 5
Sup. Ct. 1157, 29 L. Ed. 346.
In Moore v. Robbins, 96 U. S. 530, 24 L. Ed. 818, it was said di-
rectly that it is a part of the daily business of officers of the land de-
partment to decide when a party has by purchase, by pre-emption, or
by any other recognized mode, established a right to receive from the
government a title to any part of the public domain. This decision is
subject to an appeal to the Secretary of the Interior, if taken in time;
"but, if no such appeal be taken, and the patent, issued under the scal
of the United States and signed by the President, is delivered to and
accepted by the party, the title of the government passes with this
delivery. With the title passes away all the authority or control of
the executive department over the land, and over the title which it
has conveyed.
The functions of that department neces-
sarily cease when the title lias passed from the government.”
We think the case under consideration falls within this latter class.
The lands over which the right of way was granted were public
lands, subject to the operation of the statute; and the question whether
the plaintiff was entitled to the benefit of the grant was one which it
was competent for the Secretary of the Interior to decide, and, when
decided, and his approval was noted upon the plats, the first section
644
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
of the act vested the right of way in the railroad company. The lan-
guage of that section is "that the right of way through the public
lands of the United States is hereby granted to any railroad com-
pany duly organized under the laws of any state or territory," etc.
The uniform rule of this court has been that such an act was a grant
in præsenti of lands to be thereafter identified. Railway Co. v. Alling,
99 U. S. 463, 25 L. Ed. 438. The railroad company became at once
vested with a right of property in these lands, of which they can
only be deprived by a proceeding taken directly for that purpose.
If it were made to appear that the right of way had been obtained
by fraud, a bill would doubtless lie by the United States for the can-
cellation and annulment of an approval thus obtained. Moffat v. U.
S., 112 U. S. 24, 5 Sup. Ct. 10, 28 L. Ed. 623; U. S. v. Minor, 114
U. S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110. A revocation of the ap-
proval of the Secretary of the Interior, however, by his successor in
office, was an attempt to deprive the plaintiff of its property without
due process of law, and was, therefore, void. As was said by Mr.
Justice Grier in U. S. v. Stone, 2 Wall. 525, 535, 17 L. Ed. 765:
“One officer of the land office is not competent to cancel or annul the
act of his predecessor. That is a judicial act, and requires the judg-
inent of a court." Moore v. Robbins, 96 U. S. 530, 2+ L. Ed. 848.
The case of U. S. v. Schurz, 102 U. S. 378, 26 L. Ed. 167, is
full authority for the position assumed by the plaintiff in the case at
bar. In this case the relator had been adjudged to be entitled to
160 acres of the public lands; the patent had been regularly signed,
sealed, countersigned, and recorded; and it was held that a mandamus
to the Secretary of the Interior to deliver the patent to the relator
should be granted. It was said in this case by Mr. Justice Miller:
"Whenever this takes place [that is, when a patent is duly executed],
the land has ceased to be the land of the government, or, to speak
in technical language, title has passed from the government, and the
power of these officers to deal with it has also passed away.
It was not competent for the Secretary of the Interior thus to
revoke the action of his predecessor, and the decree of the court be-
low must therefore be affirmed.
" 40
40 In the same case (United States v. Schurz, 102 U. S. 378, 401, 402,
26 L. Ed. 167 (1880]), the court says: “The whole question is one of disputed
law and disputed facts. It was a question for the land officers to consider
and decide before they determined to issue McBride's patent. It was with-
in their jurisdiction to do so. If they decided erroneously, the patent may
be voidable, but not absolutely void. The mode of avoiding it, if voidable, is
not by arbitrarily withholding it, but by judicial proceedings to set it aside,
or correct it if only partly wrong."
In Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485 (1871), equitable re-
lief was given where an error of law had been committed in issuing a land
patent. As to mode of relief in such cases, see Silver v. Ladd, 7 Wall. 219,
228, 19 L. Ed. 138 (1868).
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
645
BELEY V. NAPHTALY.
(Supreme Court of United States, 1898. 169 U. S. 353, 18 Sup. Ct. 354,
42 L. Ed. 775.)
PECKHAM, J.41
4. We are also of opinion that the re-
jection by the Secretary of the Interior of the first application made
by the defendant in error for a patent, and the subsequent grant-
ing of a rehearing and the issuing of a patent thereafter by the
Secretary, were all acts within the jurisdiction of that officer. The
fact that a decision refusing the patent was made by one Secretary
of the Interior, and, upon a rehearing, a decision granting the pat-
ent was made by another Secretary of the Interior, is not material
in a case like this. It is not a personal, but an official, hearing and
decision, and it is made by the Secretary of the Interior as such
Secretary, and not by an individual who happens at the time to fill
that office, and the application for a rehearing may be made to the
successor in office of the person who made the original decision, pro-
vided it could have been made to the latter had he remained in office.
The Secretary who made the first decision herein could have granted
a rehearing and reversed his former ruling.
The case of U. S. V. Stone, 2 Wall. 525, 17 L. Ed. 765, has no
bearing adverse to this proposition. In that case it was stated that
a patent is but evidence of a grant, and the officer who issues it acts
ministerially, and not judicially; that, if he issues a patent for land
reserved from sale by law, such patent is void for want of authori-
ty, but that one officer of the land office is not competent to cancel
or annul the act of his predecessor; that is a judicial act, and re-
quires the judgment of a court. The power to cancel or annul in
that case meant the power to annul a patent issued by a predecessor,
and this court held no such power existed. The officer originally
issuing it would have had no greater power to annul the patent than
had his successor.
Neither does Noble v. Railroad Co., 147 U. S. 165, 13 Sup. Ct.
271, 37 L. Ed. 123, touch the case. The principle therein decided
was in substance the same as in the Stone Case, supra. The con-
trol of the department necessarily ceased the moment the title passed
from the government. It was not a question whether a successor
was able to do the act which the original officer might have done,
but it was the announcement of the principle that no officer, after
the title had actually passed, had any power over the matter wliat-
. After the Secretary of the Interior had approved the map
as provided for in the act of Congress under which the proceedings
were taken by the company, the first section of that act vested the right
of way in the company. This was equivalent to a patent, and no
revocation could thereafter be permitted. See, also, Lumber Co.
ever.
41 Only a portion of the opinion of Peckham, J., is here printed.
646
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
v. Rust, 168 .U. S. 589, at page 592, 18 Sup. Ct. 208, 42 L. Ed. 591.
We have considered the other questions raised herein, but do not
think any error was committed in their disposition by the courts be-
low. The judgment of the Circuit Court of Appeals must be affirmed.
Mr. Justice HARLAN dissented.
UNITED STATES ex rel. RIVERSIDE OIL CO. v. HITCH-
COCK
(Supreme Court of United States, 1903. 190 U. S. 316, 23 Sup. Ct. 698,
47 L. Ed. 1074.)
In error to the Court of Appeals of the District of Columbia to
review a judgment which affirmed a judgment of the Supreme Court
of that District denying a petition for a writ of mandamus to com-
pel the Secretary of the Interior to vacate an order rejecting a se-
lection of public land. Affirmed.
[The statement of facts is here omitted.]
Mr. Justice PECKHAM delivered the opinion of the court.
We have set out in the statement of facts, at very great length, a
large portion of the contents of the petition and answer in this case.
It has been done for the purpose of showing by the record itself the
questions of law arising therefrom. Upon a perusal of the record
it appears that those questions are not merely formal ones, nor are
they so plain as not to require the careful judgment of any tribunal
to which they may be referred for decision. Their solution was
properly submitted to the Land Department, which had full and com-
plete jurisdiction over the matters arising under Act June 4, 1897,
c. 2, 30 Stat. 34 (U. S. Comp. St. 1901, p. 1538), and it thereby be-
came the duty of the officers of that departinent to decide them.
As is said in Knight v. United Land Ass'n, 142 U. S. 161, 12 Sup.
Ct. Rep. 258, 35 L. Ed. 974: "The Secretary is the guardian of the
people of the United States over the public lands. The obligations
of his oath of office oblige him to see that the law is carried out,
and that none of the public domain is wasted or is disposed of to a
party not entitled to it. He represents the government, which is a
party in interest in every case involving the surveying and disposal
of the public lands.”
Congress has constituted the Land Department, under the super-
vision and control of the Secretary of the Interior, a special tribunal
with judicial functions, to which is confided the execution of the
laws which regulate the purchase, selling, and care and disposition
of the public lands. Neither an injunction nor mandamus will lie
against an officer of the Land Department to control him in discharg-
ing an official duty which requires the exercise of his judginent and
discretion. Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800; Gaines
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
647
v. Thompson, y Wall. 347, 19 L. Ed. 62; United States ex rel.
Dunlap v. Black, 128 U. S. 40, 32 L. Ed. 354, 9 Sup. Ct. Rep. 12;
United States ex rel. Redfield v. Windom, 137 U. S. 636, 11 Sup.
Ct. 197, 34 L. Ed. 811.
In Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559, 600, it was
held that, in general, the official duties of the head of one of the
executive departments, whether imposed by act of Congress or by
resolution, are not mere ministerial duties. The head of an execu-
tive department of the government in the administration of the va-
rious and important concerns of his office is continually required to
exercise judgment and discretion. He must exercise his judgment
in expounding the laws and resolutions of Congress under which
he is from time to time required to act.
That the decision of the questions presented to the Secretary of
the Interior was no merely formal or ministerial act is shown beyond
the necessity of argument by a perusal of the foregoing statement
of the issues presented by this record for the decision of the Sec-
retary. Whether he decided right or wrong, is not the question.
Having jurisdiction to decide at all, he had necessarily jurisdiction,
and it was his duty to decide as he thought the law was, and the
courts have no power whatever under those circumstances to re-
view his determination by mandamus or injunction. The court has
no general supervisory power over the officers of the Land Depart-
ment, by which to control their decisions upon questions within their
jurisdiction. If this writ were granted we would require the Sec-
retary of the Interior to repudiate and disaffirin a decision which
he regarded it his duty to make in the exercise of that judgment which
is reposed in him by law, and we should require him to come to a
determination upon the issues involved directly opposite to that which
he had reached, and which the law conferred upon him the jurisdic-
tion to make.
Mandamus has never been regarded as the proper writ to control
the judgment and discretion of an officer as to the decision of a
matter which the law gave him the power and imposed upon him the
duty to decide for himself. The writ never can be used as a sub-
stitute for a writ of error. Nor does the fact that no writ of er-
ror will lie in such a case as this, by which to review the judgment
of the Secretary, furnish any foundation for the claim that manda-
mus may therefore be awarded. The responsibility as well as the
power rests with the Secretary, uncontrolled by the courts.
Neither the case of Roberts v. United States, 176 U. S. 221, 20
Sup. Ct. 376, 44 L. Ed. 443, nor that of American School of Mag-
netic Healing v. McAnnulty, 187 U. S. 94, 23 Sup. Ct. 33, 47 L.
Ed. 90, decides anything opposing these views.
In the Roberts Case it was simply decided that the duty of the
Treasurer to pay the money in question in that case was ministerial
in its nature, and should have been performed by him on demand,
648
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
and that, therefore, mandamus was the proper remedy for his fail-
ure to do it.
In the McAnnulty Case it was held that the order of the Post-
master General to the postmaster in the city of Nevada, not to de-
liver the mail to the relator, was not a justification for such refusal,
because the order was given without authority of law, and the post-
master could, notwithstanding such order, be compelled by mandamus
to do his duty and deliver the mail. The case has no relevancy to
the one in hand.
We are so clearly of opinion that the decision of the defendant in
this case was judicial in its nature that further argument upon the
subject is needless.
The judgment of the Court of Appeals of the District of Columbia
is affirmed. 42
SECTION 81.-PENSIONS
UNITED STATES ex rel. DUNLAP v. BLACK, Commissioner of
Pensions. (No. 991.) SAME ex rel. ROSE v. SAME. (No. 992.)
SAME ex rel. MILLER v. SAME. (No. 993.)
(Supreme Court of United States, 1888. 128 U. S. 40, 9 Sup. Ct. 12,
32 L. Ed. 354.)
Errors to the Supreme Court of the District of Columbia.
BRADLEY, J. These cases were argued together, but it will be
convenient to consider them separately, in the order in which they
stand on the docket.
No. 991 was an application by Oscar Dunlap, the relator, to the
Supreme Court of the District of Columbia, for a writ of mandamus
to be directed to the respondent, Black, as Commissioner of Pensions,
commanding him to reissue to the relator his pension certificate for
$25 per month from June 6, 1866; $31.25 per month from June 4,
1872; $50 per month from June 4, 1874; and $72 per month from
June 17, 1878—first deducting all sums paid relator under previous
pensions.
By Act March 3, 1873, c. 234, § 4, 17 Stat. 569 (Rev. St. § 4698
[U. S. Comp. St. 1901, p. 3235]), it was provided that a pension of
$31.25 per month should be allowed to all persons who, while in the
42 See, also, United States v. Jones, 131 U. S. 1, 9 Sup. Ct. 669, 33 L. Ed.
90 (1888), ante, p. 382.
Jurisdictional error in audit and allowance of claims, see Board of Super-
visors of Richmond Co. v. Ellis, 59 N. Y. 620 (1875), and Dillon, Municipal
Corporations, § 504.
Ch.9)
649
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
military or naval service, had lost their sight, or both hands or both
feet, or had been permanently and totally disabled, so as to require
the regular aid and attendance of another person; and a pension of
$24 per month to those who had lost one hand and one foot; and
$18 per month to those who had lost either one hand or one foot;
and other less pensions for lesser injuries—any increase of pension
to commence from the date of the examining surgeon's certificate.
By Act June 18, 1874, c. 298, 18 Stat. 78 (Supp. Rev. St. 39 (U.
S. Comp. St. 1901, p. 3236]), it was provided that, in cases of blind-
ness or loss of both hands or both feet, or total helplessness, requir-
ing the regular and personal aid of another person, the pension should
be increased from $31.25 to $50 per month. By Act Feb. 28, 1877,
c. 73, 19 Stat. 264 (Supp. Rev. St. 282 [U. S. Comp. St. 1901, p.
3236]), it was provided that those who had lost one hand and one
foot should be entitled to a pension for each of such disabilities at
the rate of existing laws, which made the total pension $36 per
month. The relator, in April, 1877, applied for the benefit of this
law, and it was granted to him. By Act June 16, 1880, c. 236, 21
Stat. 281 (Supp. Rev. St. 560 [U. S. Comp. St. 1901, p. 3237]), it
was enacted that all those then (at the date of the act) receiving a
pension of $50 per month under the act of June 18, 1874, should re-
ceive $72 per month from June 17, 1878.
After the last act was passed, the relator applied for the increase
allowed by it. The Commissioner of Pensions, being of opinion that
he did not come within its terms, rejected the application, but grant-
ed him a certificate for a pension of $50 per month under the act
of 1874, to be received from May 25, 1881, the date of his medical
examination. The petition for mandamus sets out the decision of
the Commissioner in full, in which it is conceded that the relator has
become permanently disabled. The following is an extract from the
decision, to-wit:
"Washington, D. C., October 15, 1887.
"In this case the application of the claimant for rerating and for
increase will be allowed at $50 per month from May 25, 1881, the
date of the first medical examination under the claimant's applica-
tion of June 26, 1880. This rating is allowed under the act of June
18, 1874; it sufficiently appearing by the evidence in this case that
the claimant has lost both a hand and a foot, and at the same time
has been so additionally injured in the head as, from a period prior
to the rerating or increase in this case, to render him totally and
permanently helpless, requiring from thence until now the regular
personal aid and attendance of another person. The reason why
the claimant's rating is not advanced to $72 per month is that he was
not on the 16th of June, 1880 [the date of the act] receiving pension at
the rate of $50 per month, nor was he entitled to receive a pension
of $50 per month at that date, for the reason that, while the degree
of helplessness which has been shown was that contemplated by the
650
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
law, the claimant himself (neither on his own motion, nor under the
guidance of those who are legally responsible for his actions in this
claim) had not made application to be rated in pursuance of the act
of June 18, 1874, but, on the contrary thereof, had asked to be rated
and had been rated at $36 per month, under the act of February 28,
1877."
The decision proceeds to discuss further the reasons for the con-
clusion to which the commissioner had come.
The relator, by his counsel, strenuously contends that the conces-
sion made by the commissioner with regard to the disability of the
relator shows that it was his clear duty to have granted a certificate
for the larger pension of $72 per month. The following passage in
the petition for mandamus shows the position taken by the relator:
"And your relator further says that the respondent lias thus express-
ly found the facts in your relator's case to be (1) that while your rela-
tor was in the military service
he sustained such wounds
and injuries as resulted in the loss of his right hand and right foot,
and at the same time sustaining injury to the head; (2) that your
relator was thereby rendered 'totally and permanently helpless, re-
quiring from thence till now the regular aid and attendance of an-
other person'; and (3) that your relator applied to the Commissioner
of Pensions on June 26, 1880, for pension on account thereof. And
your relator says that upon this finding of the facts whether he is
entitled to a rerating and an increase of pension from date of dis-
charge, so as to give unto him a pension commensurate with his dis-
abilities so found to exist by the respondent, is a question of law;
and that it does not lie in the discretionary power of the respond-
ent, as Commissioner of Pensions, to deny or in any wise abridge
his rights with respect thereto."
This extract shows the theory of the petitioner, and the doctrine
which he invokes in support of his application. We have been more
full in stating the facts of the case in order that the legal grounds
on which that application is based may clearly appear. The case
does not require an extended discussion. The questions of law on
which it depends have been closed by repeated decisions of this court.
The amenability of an executive officer to the writ of mandamus,
to compel him to perform a duty required of him by law, was dis-
cussed by Chief Justice Marshall in his great opinion in the case of
Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60; and the radical
distinction was there pointed out between acts performed by such
officers in the exercise of their executive functions, which the Chief
Justice calls political acts, and those of a mere ministerial character;
and the rule was distinctly laid down that the writ will not be issued
in the former class of cases, but will be issued in the latter. In
that case President Adams had nominated, and the Senate had con-
firmed, Marbury as a justice of the peace of the District of Colum-
bia; and a conimission in due form was signed by the President ap-
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
651
pointing him such justice, and the seal of the United States was
duly affixed thereto by the Secretary of State; but the commission
had not been handed to Marbury when the offices of the govern-
ment were transferred to the administration of President Jefferson.
Mr. Madison, the new Secretary of State, refused to deliver the com-
mission, and a mandamus was applied for to this court to compel
him to do so. The court held that the appointment had been made
and completed, and that Marbury was entitled to his commission,
and that the delivery of it to him was a mere ministerial act, which
involved no further official discretion on the part of the Secretary,
and could be enforced by mandamus. But the court did not issue
the writ, because it would have been an exercise of original juris-
diction which it did not possess.
While this opinion will always be read by the student with in-
terest and profit, it has not been considered as invested with absolute
judicial authority, except on the question of the original jurisdiction
of this court. The decision on this point has made it necessary for
parties desiring to compel an officer of the government to perform
an act in which they are interested to resort to the highest court of
the District of Columbia for redress. It has been held in numerous
cases, and was held after special discussion in the cases of Kendall
v. U. S., 12 Pet. 524, 9 L. Ed. 1181, and U. S. v. Schurz, 102 U:
S. 378, 26 L. Ed. 167, that the former Circuit Court of the Dis-
trict, and the present Supreme Court of the District, respectively,
were invested with plenary jurisdiction on the subject. On this point
there is no further question.
The two leading cases which authoritatively show when the Su-
preme Court of the District may, and when it may not, grant a man-
damus against an executive officer, are the above-cited case of Ken-
dall v. U. S., 12 Pet. 524, 9 L. Ed. 1181,43 and Decatur v. Paulding,
14 Pet. 497, 10 L. Ed. 359.44 The subsequent cases have followed
the principles laid down in these, and do little more than illustrate and
apply them.
In the former case the mandamus was granted, and the decision
was affirmed by this court. The case was shortly this: Stockton &
Stokes, as contractors for carrying the mails, had certain claims against
the government for extra services, which they insisted should be cred-
ited in their accounts, and a controversy arose between them and
che Post-Office Department on the 'subject. Congress passed an act
for their relief, by which the Solicitor of the Treasury was authorized
and directed to settle and adjust their claims, and make them such
allowances as upon a full examination of all the evidence might seem
to be equitable and right; and the Postmaster General was directed
to credit them with whatever suns the Solicitor should decide to be
due them. The Solicitor, after due investigation, made his report,
43 See ante, p. 454.
44 See ante, p. 438.
652
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
and stated the sums due to Stockton & Stokes on the claims made
by them; but the Postmaster General, Mr. Kendall, refused to give
them credit as directed by the law. This the court held he could be
compelled to do by mandamus, because it was simply a ministerial
duty to be performed, and not an official act requiring any exercise
of judgment or discretion. This court, through Mr. Justice Thomp-
son, said: “The act required by the law to be done by the Postmaster
General is simply to credit the relators with the full amount of the
award of the Solicitor. This is a precise, definite act, purely min-
isterial, and about which the Postmaster General had no discretion
whatever. The law upon its face shows the existence of accounts
between the relators and the Post-Office Department. No money was
required to be paid, and none could be drawn from the treasury with-
out further legislative provision, if this credit should overbalance
the debit standing against the relators. But this was a matter with
which the Postmaster General had no concern. He was not called
upon to furnish the means of paying such balance, if any should be
found. He was simply required to give the credit. This was not
an official act in any other sense than being a transaction in the
department where the books and accounts were kept; and was an
official act in the same sense that an entry in the minutes of a court,
pursuant to an order of the court, is an official act. There is no
room for the exercise of any discretion, official or otherwise; all
that is shut out by the direct and positive command of the law, and
the act required to be done is, in every just sense, a mere minis-
terial act.”
In the other case (Decatur v. Paulding) the mandamus was re-
fused by the Circuit Court, and that decision was also affirmed by
this court. The case was this: On the 3d of March, 1837, Congress
passed an act giving to the widow of any officer who had died in
the naval service a pension equal to half of his monthly pay from the
time of his death until her death or marriage. On the same day
Congress passed a resolution granting a pension to Mrs. Decatur,
widow of Stephen Decatur, for five years, commencing June 30,
1834, and the arrearages of the half pay of a post captain from
Commodore Decatur's death to the 30th of June, 1834. Mrs. Decatur
applied for and received her pension under the general law, with a
reservation of her rights under the resolution, claiming the pension
granted by that also. The Secretary of the Navy, acting under the
opinion of the Attorney General, decided that she could not have
both. Thereupon she applied for a mandamus to compel the Sec-
retary to comply with the resolution in her favor. Chief Justice
Taney delivered the opinion of the court, and laid down the law
in terms that have never been departed from. We can only quote a
single passage from this opinion.
The Chief Justice says: “The duty required by the resolution was
to be performed by him [the Secretary of the Navy] as the head of
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
653
one of the executive departments of the government, in the ordinary
discharge of his official duties. In general, such duties, whether im-
posed by act of Congress or by resolution, are not mere ministerial
cluties. The head of an executive department of the government, in
the administration of the various and important concerns of his office,
is continually required to exercise judgment and discretion. He must.
exercise his judgment in expounding the laws and resolutions of Con-
gress, under which he is from time to time required to act. If he
doubts, lie has a right to call on the Attorney General to assist him
with his counsel; and it would be difficult to imagine why a legal
adviser was provided by law for the heads of the departments, as
well as for the President, unless their duties were regarded as ex-
ecutive, in which judgment and discretion were to be exercised. If
a suit should come before this court which involved the construction
of any of these laws, the court certainly would not be bound to adopt
the construction given by the head of a department; and, if they sup-
posed his decision to be wrong, they would, of course, so pronounce
their judgment. But their judgment upon the construction of a
law must be given in a case in which they have jurisdiction, and in
which it is their duty to interpret the act of Congress, in order to
ascertain the rights of the parties in the cause before them. The
court could not entertain an appeal from the decision of one of the
Secretaries, nor revise his judgment, in any case where the law au-
thorized him to exercise discretion or judgment. Nor can it by
mandamus act directly upon the officer, and guide and control his
judgment or discretion in the matters committed to his care, in the
ordinary discharge of his official duties. The case before us il-
lustrates these principles, and shows the difference between execu-
tive and ministerial acts.”
The Chief Justice then goes on to show that the decision of the
Secretary of the Navy in that case was entirely executive and offi-
cial in its character, and that in this respect the case differed entirely
from that of Kendall v. U. S.
The principle of law deducible from these two cases is not difficult
to enounce. The court will not interfere by mandamus with the ex-
ecutive officers of the government in the exercise of their ordinary
official duties, even where those duties require an interpretation of
the law, the court having no appellate power for that purpose; but
when they refuse to act in a case at all, or when, by special statute
or otherwise, a 'mere ministerial duty is imposed upon them—that
is, a service which they are bound to perform without further ques-
tion—then, if they refuse, a mandamus may be issued to compel
them. Judged by this rule, the present case presents no difficulty.
The Commissioner of Pensions did not refuse to act or decide. He
did act and decide. He adopted an interpretation of the law adverse
to the relator, and his decision was confirmed by the Secretary of
the Interior, as evidenced by his signature of the certificate. Whether,
654
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
if the law were properly before us for consideration, we should be
of the same opinion, or of a different opinion, is of no consequence
in the decision of this case. We have no appellate power over the
Commissioner, and no right to review his decision. That decision,
and his action taken thereon, were made and done in the exercise of
his official functions. They were by no means merely ministerial
acts.
The decisions of this court, which have been rençlered since the
cases referred to, corroborate and confirm all that has been said.
The following are the most important, to wit: Brashear v. Mason,
6 How. 92, 12 L. Ed. 357; U. S. v. Guthrie, 17 How. 284, 15 L.
Ed. 102; Commissioner v. Whiteley, 4 Wall. 522, 18 L. Ed. 335;
Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 1721; Gaines v. Thompson,
y Wall. 347, 19 L. Ed. 62; U. S. v. Schurz, 102 U. S. 378, 26 L.
Ed. 167; Butterworth v. Hoe, 112 U. S. 50, 5 Sup. Ct. 25, 28 L.
Ed. 656. In the two last cases cited, the mandamus was granted ;
and they were cases in which it was held that a mere ministerial
duty was to be performed by the officer.
In U. S. v. Schurz the question related to a patent for land claimed
by a pre-emptor. All the proceedings had been gone through, the
right of the applicant had been affirmed, the patent had been made
out in the land office, signed by the President, sealed with the land
office seal, countersigned by the recorder of the land office, recorded
in the proper book, and transmitted to the local land officers for de-
livery; but delivery was refused because instructions had been re-
ceived from the Commissioner to return the patent. The plea was
that it had been discovered that the lands belonged to a town site.
The court held that this was an insufficient plea; that the title hac
passed to the applicant, and he was entitled to his patent, subject to
any equity which other parties might have to the land, or to a pro-
ceeding for setting the patent aside; and that the duty of the Com-
missioner or Secretary of the Interior had become a mere ministerial
duty to deliver the instrument, as was held in Marbury v. Madison,
in relation to the commission of Marbury as justice of the peace. Of
course, this case is entirely different from the case now under con-
sideration.
The case of Butterworth v. Hoe was very similar in principle to
that of U. S. v. Schurz. The Commissioner of Patents had decided
in favor of the right of one Gill, an applicant for a patent, in a case
of interference, and adjudged that a patent should issue to his as-
signs accordingly. An appeal was taken to the Secretary of the In-
terior, who reversed the decision of the Commissioner. The latter
thereupon, and for that reason, refused to issue a patent. It was
a question whether an appeal lay to the Secretary of the Interior, and
this court held that it did not, and that he had no jurisdiction in the
matter. The court, therefore, held that the patent ought to be is-
sued in accordance with the decision of the Commissioner, and that
Ch.9)
655
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
the mere issue of the patent was a ministerial matter for which a
mandamus would lie. This case, like that of U. S. v. Schurz, is un-
like the present. All deliberation had ceased; the right of Gill, the
applicant, was adjudged; there was nothing to be done but to de-
liver to the party the documentary evidence of his title. That was a
mere ministerial matter. We think that the mandamus was prop-
erly refused, and the judgment of the Supreme Court of the Dis-
trict is affirmed.
No. 992 is similar in all essential respects to the preceding, and
the decision must be the same. Judgment affirmed.
No. 993 differs materially from Nos. 991 and 992. Charles R.
Miller, the relator, having made an unsuccessful application to the
Commissioner of Pensions for an increase of his pension, finally
appealed to the Secretary of the Interior, and in his petition for man-
damus says as follows, to wit:
“That the Secretary, upon a personal, careful inspection of the rec-
ord, and all the evidence filed therein in his case, and on due consid-
eration thereof, made and rendered the following official decision:
*Department of the Interior, Washington, D. C., February 12, 1885.
The Commissioner of Pensions-Sir: Herewith are returned the
papers in the pension claim (certificate No. 55,356) of Charles R.
Miller. It appears from the papers that Mr. Miller's claim was be-
fore this department on the 6th inst., and it was held that the pen-
sioner is greatly disabled, and it is evident from the papers in his
case that he is utterly unable to do any manual labor, and he is there-
fore entitled to $30 per month under the act of March 3, 1883, which
has been allowed him by your office. Since the departmental deci-
sion above referred to, the papers in the claim have been carefully
reconsidered by the department, and a personal examination of the
pensioner made; and it satisfactorily appears that he is unable to put
on his shoe and stocking on the foot of his injured leg, for the rea-
son that the nearest point that can be reached by hand from foot
is 23 inches, and for the further reason that from "necrosis of the
lower vertebræ of spine, producing anchylosis of the spinal column
and destruction of some of the spinal nerves," he is unable to bend
his back. After a careful review of all the facts in this case, the
department is constrained to think that the pensioner comes under
the meaning of the laws granting pensions to those persons who re-
quire aid and attendance. The decision of the 6th inst. is therefore
overruled. Very respectfully, H. M. Teller, Secretary.'
"And your orator avers that the said official decision of the Sec-
retary of the Interior, so made as aforesaid, was a final adjudication
of his claim in his favor, and conclusively establishes his right under
the laws to be rerated at $25 per month from June 6, 1866; $31.25
per month from June 4, 1872; $50 per month from June 4, 1874;
and $72 per month from June 17, 1878—and to be paid the difference
monthly between these sums and what has been allowed him; and
656
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RELIEF AGAINST ADMINISTRATIVE ACTION.
!
all that remained for the Commissioner of Pensions to do in the
premises was the simple ministerial duty of accordingly carrying the
said final official decision of the Secretary into execution.”
The petition goes on to state that the former Commissioner of
Pensions refused to carry out the Secretary's decision to its full
extent, and that the present Commissioner, the respondent, still re-
fuses. If, as the petition suggests, the Commissioner of Pensions
refuses to carry out the decision of his superior officer, there would
seem to be prima facie ground for at least calling upon him to show
cause why a mandamus should not issue. This was all that the
petitioner asked, and this the court refused.
As a general rule, when a superior tribunal has rendered a deci-
sion binding on an inferior, it becomes the ministerial duty of the
latter to obey it and carry it out. So far as respects the matter de-
cided, there is no discretion or exercise of judgment left. This is
the constant course in courts of justice. The appellate court will not
hesitate to issue a mandamus to compel obedience to its decisions.
The appellate tribunal in the present case is the Secretary of the
Interior, who has no power to enforce his decisions by mandamus,
or any process of like nature; and therefore a resort to a judicial
tribunal would seem to be necessary, in order to afford a remedy to
the party injured by the refusal of the Commissioner to carry out his
decision.
But it is suggested that removal of the contumacious subordinate
from office, or a civil suit brought against him for damages, would
be effectual remedies. We do not concur in this view. A suit for
damages, if it could be maintained, would be an uncertain, tedious,
and ineffective remedy, attended with many contingencies, and bur-
dened with onerous expenses. Removal from office would be still
more unsatisfactory. It would depend on the arbitrary discretion
of the President, or other appointing power, and is not such a remedy
as a citizen of the United States is entitled to demand. We think
that the case suggested by the petition is one in which it would be
proper for the court to interfere by mandamus. Whether it will turn
out to be such, when all the circumstances are known, can be ascer-
tained by a rule to show cause; and such a rule, we think, ought to
have been granted.
The judgment of the court below is therefore reversed, and the cause
remanded, with instructions to grant a rule to show cause as applied
for by the petitioner.
Judgments will be entered separately in the several cases.
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
657
SECTION 82.–POSTAL ADMINISTRATION
AMERICAN SCHOOL OF MAGNETIC HEALING v. Mc-
ANNULTY.
(Supreme Court of United States, 1902. 187 U. S. 94, 23 Sup. Ct. 33,
47 L. Ed. 90.)
Appeal from the Circuit Court of the United States for the Western
District of Missouri to review a decree dismissing a bill to enjoin a
postmaster from carrying out an order of the Postmaster General di-
recting the retention of letters addressed to a corporation. Reversed.
The order complained of was as follows:
“Postoffice Department,
"Washington, D. C., May 15, 1900.
"It having been made to appear to the Postmaster General, upon
evidence satisfactory to him, that the American School of Magnetic
Healing, S. A. Weltmer, president, J. H. Kelly, secretary, and J. A.
Kelly, at Nevada, Missouri, are engaged in conducting a scheme or de-
vice for obtaining money through the mails by means of false and
fraudulent pretenses, representations, and promises, in violation of the
act of Congress entitled 'An act to amend certain sections of the Re-
vised Statutes relating to lotteries and for other purposes, approved
September 19, 1900.
"Now, therefore, by authority vested in him by said act and by the
act of Congress entitled 'An act for the suppression of lottery traf-
fic through international and interstate commerce and the postal serv-
ice, subject to the jurisdiction and laws of the United States, approved
March 2, 1895,' the Postmaster General hereby forbids you to pay
any postal money order drawn to the order of said concern and per-
sons, and you are hereby directed to inform the remitter of any such
postal money order that payment thereof has been forbidden, and that
the amount thereof will be returned upon the presentation of a dupli-
cate money order, applied for and obtained under the regulations of
the department.
"And you are hereby instructed to return all letters, whether reg-
istered or not, and other mail matter which shall arrive at your office
directed to the said concern and persons, to the postmasters at the
offices at which they were originally mailed, to be delivered to the
senders thereof, with the word 'fraudulent' plainly written or stamped
upon the outside of such letters or matter. Provided, however,
that where there is nothing to indicate who are the senders of letters
not registered, or other matter, you are directed in that case to send
FR. ADM.LAW-42
.
658
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
such letters and matter to the dead-letter office, with the word 'fraud-
uilent plainly written or stamped thereon, to be disposed of as other
dead matter, under the laws and regulations applicable thereto.
“Ch. Emory Smith, Postmaster General.
"To the Postmaster, Nevada, Missouri."
Section 3929 of the Revised Statutes (U. S. Comp. St. 1901, p. 2686)
provides as follows: "Sec. 3929. The Postmaster General may, upon
evidence satisfactory to him that any person is engaged in conducting
any fraudulent lottery, gift enterprise, or scheme for the distribution
of money, or of any real or personal property, by lot, chance, or
drawing of any kind, or in conducting any other scheme or device for
obtaining money through the mails by means of false or fraudulent
pretenses, representations, or promises, instruct postmasters at any
post offices at which registered letters arrive directed to any such per-
son to return all such registered letters to the postmasters at the offi-
ces of which they were originally mailed, with the word 'fraudulent
plainly written or stamped upon the outside of such letters; and all
such letters so returned to such postmasters shall be by them returned
to the writers thereof, under such regulations as the Postmaster Gen-
eral may prescribe. But nothing contained in this title shall be so
construed as to authorize any postmaster or other person to open any
letter not addressed to himself."
Section 4041 (U. S. Comp. St. 1901, p. 2749) is of the same purport
as section 3929, excepting that instead of providing for the retention
of registered letters, it forbids the payment by any postmaster to the
person or company described of any postal money orders drawn to his
or its order, or to his or its favor, or to any agent of any such per-
son or company, and it provides for the return to the remitters of the
sums of money named in those money orders. Section 4 of the act
(Act March 2, 1895, c. 191, 28 Stat. 693, 694 [U. S. Comp. St. 1901,
p. 2688]) amended section 3929 of the Revised Statutes so as to pro-
vide for the retention of all letters instead of merely registered letters
as in the original section.
Before the issuing of the written order by the Postmaster General
prohibiting the delivery of mail matter to the complainants, and pur-
suant to notice from the Postmaster General, the complainants went
bei re that official at Washington and had a hearing before him,
and gave their reasons why what is termed a "fraud order” should
not be issued, and the Postmaster General, after hearing evidence
such as in his judgment was contemplated by the sections of the stat-
utes above mentioned, issued the order above referred to, and there-
upon the defendant has refused to permit the delivery of the mail, and
assigns as his only reason for so doing that it would be in violation
of the order of the Postmaster General, founded upon the provisions
of the statute already set forth.
The complainants asked for an injunction to restrain the postmaster
from carrying out the order of the Postmaster General, and that a
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
659
decree might be entered perpetually enjoining the defendant as pray-
ed for.
The defendant demurred to the complainants' amended bill (1) on
the ground that the complainants had not stated any such case as en-
titled them to any relief; (2) because the complainants had not stat-
ed any ground for equitable relief against the defendant, and had not
shown any reason why an injunction should be granted.
The court sustained the demurrer, and, the complainants declining
to plead further, it was decreed by the court that the amended bill of
the complainants was insufficient in law and equity, and it was there-
upon dismissed at complainants' cost.
The case arising upon demurrer, it was admitted that the business
of the complainants was founded "almost exclusively on the physical
and practical proposition that the mind of the human race is large-
ly responsible for its ills, and is a perceptible factor in the treating,
curing, benefiting, and remedying thereof, and that the human race
does possess the innate power, through proper exercise of the faculty
of the brain and mind, to largely control and remedy the ills that
humanity is heir to, and (complainants) discard and eliminate from
their treatment what is commonly known as Divine Healing and Chris-
tian Science, and they are confined to practical scientific treatment, em-
anating from the source aforesaid.”
Mr. Justice PECKHAM delivered the opinion of the court.45
The bill of the complainants as amended raises some grave ques-
tions of constitutional law which, in the view the court takes of the
case, it is unnecessary to decide. We may assume, without deciding
or expressing any opinion thereon, the constitutionality in all par-
ticulars of the statutes above referred to, and therefore the questions
arising in the case will be limited (1) to the inquiry as to whether the
action of the Postmaster General under the circumstances set forth
in the complainants’ bill is justified by the statutes; and (2), if not,
whether the complainants have any remedy in the courts.
Second. Conceding, for the purpose of this case, that Congress
has full and absolute jurisdiction over the mails, and that it may
provide who may and who may not use them, and that its action is
not subject to review by the courts, and also conceding the conclu-,
sive character of the determination by the Postmaster General of any
material and relevant questions of fact arising in the administration
of the statutes of Congress relating to his department, the question
still remains as to the power of the court to grant relief where the
Postmaster General has assumed and exercised jurisdiction in a case
not covered by the statutes, and where he has ordered the detention
of mail matter, when the statutes have not granted him power so
to order. Has Congress intrusted the administration of these statutes
wholly to the discretion of the Postmaster General, and to such an
*
föt.
45 Only a portion of this case is printed.
660
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RELIEF AGAINST ADMINISTRATIVE ACTION.
i
extent that his determination is conclusive upon all questions arising
under those statutes, even though the evidence which is adduced be-
fore him is wholly uncontradicted, and shows, beyond any room for
dispute or doubt, that the case in any view, is beyond the statutes,
and not covered or provided for by them?
That the conduct of the post office is a part of the administrative
department of the government is entirely true, but that does not nec-
essarily and always oust the courts of jurisdiction to grant relief to
a party aggrieved by any action by the head, or one of the subordinate
officials, of that department, which is unauthorized by the statute
under which he assumes to act. The acts of all its officers must be
justified by some law, and in case an official violates the law to the
injury of an individual the courts generally have jurisdiction to grant
relief.
The Land Department of the United States is administrative in
its character, and it has been frequently held by this court that, in
the administration of the public land system of the United States,
questions of fact are for the consideration and judgment of the Land
Department, and its judgment thereon is final. Burfenning v. Chi-
cago, St. P., M. & O. R. Co., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L.
Ed. 175; Johnson v. Drew, 171 U. S. 93, 99, 18 Sup. Ct. 800, 43
L. Ed. 88, 91; Gardner v. Bonestell, 180 U. S. 362, 21 Sup. Ct. 399,
45 L. Ed. 574.
While the analogy between the above-cited cases and the one now
before us is not perfect, yet, even in them it is held that the deci-
sions of the officers of the department upon questions of law do
not conclude the courts, and they have power to grant relief to an
individual aggrieved by an erroneous decision of a legal question by
department officers.
Thus in the Burfenning Case, 163 U. S. 321, 16 Sup. Ct. 1018, 41
L. Ed. 175, a tract of land had been reserved from homestead and
pre-emption, and had been included within the limits of an incorporat-
ed town, notwithstanding which the Land Department had decided
that the land was open to entry, and had granted a patent under the
statute relating to homesteads. The court said that “when, by act
of Congress, a tract of land has been reserved from homestead and
pre-emption, or dedicated to any special purpose, proceedings in the
Land Department in defiance of such reservation or dedication, al-
though culminating in a patent, transfer no title, and inay be chal-
lenged in an action at law. In other words, the action of the Land
Department cannot override the expressed will of Congress, or con-
vey away public lands in disregard or defiance thereof."
Here it is contended that the Postmaster General has, in a case
not covered by the acts of Congress, excluded from the mails letters
addressed to the complainants. His right to exclude letters, or to
refuse to permit their delivery to persons addressed, must depend
upon some law of Congress, and if no such law exists, then he
Ch.9)
661,
JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
cannot exclude or refuse to deliver them. Conceding, arguendo, that
when a question of fact arises, which, if found in one way, would
show a violation of the statutes in question in some particular, the
decision of the Postmaster General that such violation had occurred,
based upon some evidence to that effect, would be conclusive and
final, and not the subject of review by any court, yet to that assump-
tion must be added the statement that, if the evidence before the
Postmaster General, in any view of the facts, failed to show a vio-
lation of any federal law, the determination of that official that such
violation existed would not be the determination of a question of
fact, but a pure mistake of law on his part, because the facts, being
conceded, whether they amounted to a violation of the statutes would
be a legal question, and not a question of fact. Being a question of
law simply, and the case stated in the bill being outside of the stat-
utes, the result is that the Postmaster General has ordered the re-
tention of letters directed to complainants in a case not authorized
by those statutes. To authorize the interference of the Postmaster
General, the facts stated must, in some aspect, be sufficient to permit
him, under the statutes, to make the order.
The facts, which are here admitted of record, show that the case
is not one which, by any construction of those facts, is covered or
provided for by the statutes under which the Postmaster General has
assumed to act, and his determination that those admitted facts do
authorize his action is a clear mistake of law as applied to the ad-
mitted facts, and the courts, therefore, must have power in a proper
proceeding to grant relief. Otherwise, the individual is left to the
absolutely uncontrolled and arbitrary action of a public and admin-
istrative officer, whose action is unauthorized by any law, and is in
violation of the rights of the individual. Where the action of such
an officer is thus unauthorized, he thereby violates the property rights
of the person whose letters are withheld.
In our view of these statutes the complainants had the legal right,
under the general acts of Congress relating to the mails, to have
their letters delivered at the post office as directed. They had violated
no law which Congress had passed, and their letters contained checks,
drafts, money orders, and money itself, all of which were their
property as soon as they were deposited in the various post offices
for transmission by mail. They allege, and it is not difficult to see
that the allegation is true, that, if such action be persisted in, these
complainants will be entirely cut off from all mail facilities, and their
business will necessarily be greatly injured, if not wholly destroyed,
such business being, so far as the laws of Congress are concerned,
legitimate and lawful. In other words, irreparable injury will be
done to these complainants by the mistaken act of the Postmaster
General in directing the defendant to retain and refuse to deliver
letters addressed to them.
662
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION.
The Postmaster General's order, being the result of a mistaken
view of the law, could not operate as a defense to this action on the
part of the defendant, though it might justify his obedience thereto
until some action of the court. In such a case as the one before us
there is no adequate remedy at law, the injunction to prohibit the
further withholding of the mail from complainants being the only
remedy at all adequate to the full relief to which the complainants
are entitled. Although the Postmaster General had jurisdiction over
the subject-matter (assuming the validity of the acts), and therefore
it was his duty, upon complaint being made, to decide the ques-
tion of law whether the case stated was within the statute, yet such
decision, being a legal error, does not bind the courts.
Without deciding, therefore, or expressing any opinion upon the
various constitutional objections set out in the bill of complainants,
but simply holding that the admitted facts show no violation of the
statutes cited above, but an erroneous order given by the Postmaster
General to defendant, which the courts have the power to grant relief
against, we are constrained to reverse the judgment of the Circuit
Court, with instructions to overrule the defendant's demurrer to the
amended 11, with leave to answer, and to grant a temporary in-
junction as applied for by complainants, and to take such further
proceedings as may be proper, and not inconsistent with this opinion.
In overruling the demurrer, we do not mean to preclude the de-
fendant from showing on the trial, if he can, that the business of
complainants, as in fact conducted, amounts to a violation of the
statutes as herein construed.
Judgment reversed.
Mr. Justice WHITE and Mr. Justice MCKENNA, believing the judg-,
ment should be affirmed, dissented from the foregoing opinion.
BATES & GUILD CO. V. PAYNE, Postmaster General.
(Supreme Court of United States, 1904. 194 U. S. 106, 24 Sup. Ct. 595,
48 L. Ed. 894.)
Appeal from the Court of Appeals of the District of Columbia to
review a decree which reversed a decree of the Supreme Court of
the District, enjoining the Postmaster General from enforcing an
order denying the admission to the mails of a publication of com-
plainant as second-class mail matter, and dismissed the bill. Affirmed.
This was a bill to compel the recognition by the Postmaster Gen-
eral of the right of the plaintiff corporation to have a periodical
publication, known as Masters in Music, received and transmitted
through the mails as matter of the second class, and to enjoin de-
fendant from enforcing an order, theretofore made by him, deny-
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
663
ing it entry as such. This case took the same course as the pre-
ceding ones.
Mr. Justice Brown delivered the opinion of the court.
The first number of Masters in Music was issued in January,
1903, and an application was immediately made to the Postmaster
General for its admission to the mails as second-class mail matter. The
application was denied, and plaintiff immediately, and before the is-
sue of another number, filed this bill. The publication purports to
be a "monthly magazine," salable at 20 cents per number, and to
subscribers at $2 a year. The first number is devoted to the works
of Mozart and contains a portrait, a biography of four pages, an es-
say of ten pages upon his art, and thịrty-two pages of his music.
The preliminary page contained a notice to the effect that “Masters
in Music will be unlike any other musical magazine. Each monthly
issue, complete in itself, will be devoted to one of the world's great
musicians, giving thirty-two pages of engraved piano music, which
will comprise those compositions or movements that represent the com-
poser at his best, with editorial notes suggesting the proper inter-
pretation; a beautiful frontispiece portrait, a life, and estimates of
his genius and place in art, chosen from the writings of the most
eminent musical critics. The text will thus constitute an interest-
ing and authoritative monthly lesson in musical history; its selec-
tions of music will form a library of the world's musical masterpieces,
and all at slight cost.
The announcement of the contents
of the February issue, which will treat of Chopin, will be found on
another page."
The Postmaster General placed his refusal to allow this magazine
to be transmitted as second-class nail matter upon the ground that
each number was complete in itself; had no connection with other
numbers save in the circumstance that they all treated of masters
in music, and that these issues were in fact sheet music disguised
as a periodical, and should be classified as third-class mail matter.
Conceding the principle established in the two cases just decided
to be that the fact that books published at stated intervals and in
consecutive numbers do not thereby become periodicals, even though
in other respects they conform to the requirements of Act March 3,
1879, c. 180, § 14, 20 Stat. 359 (U. S. Comp. St. 1901, p. 2647),
cases may still arise where the classification of a certain publication
may be one of doubt. Such is this case. But we think that, although
the question is largely one of law, determined by a comparison of
the exhibit with the statute, there is some discretion left in the
Postmaster General with respect to the classification of such pub-
lications as mail matter, and that the exercise of such discretion
ought not to be interfered with unless the court be clearly of opinion
that it was wrong. The Postmaster General is charged with the
duty of examining these publications and of determining to which
664
(Part 2
RELIEF AGAINST ADMINISTRATIVE ACTION,
class of mail matter they properly belong; and we think his decision
should not be made the subject of judicial investigation in every case
where one of the parties thereto is dissatisfied. The consequence of
a different rule would be that the court might be flooded by appeals
of this kind to review the decision of the Postmaster General in every
individual instance. In the case of American School of Magnetic
Healing v. McAnnulty, 187 U. S. 94, 104, 23 Sup. Ct. 33, 47 L. Ed.
90, 94, the post-office authorities were held to have acted beyond their
authority in rejecting all correspondence with the plaintiff upon the
subject of the treatment of diseases by inental action; but while
it was said in that case that the question involved was a legal one, it
was intimated that something must be left to the discretion of the
Postmaster General.
It has long been the settled practice of this court in land cases to
treat the findings of the Land Department upon questions of fact as
conclusive, although such proceedings involve to a certain extent,
the exercise of judicial power. As was said in Burfenning v. Chi-
cago, St. P., M. & O. R. Co., 163 U. S. 321, 323, 16 Sup. Ct. 1018,
1019, 41 L. Ed. 175, 176: "Whether, for instance, a certain tract is
swamp land or not, saline land or not, mineral land or not, presents
a question of fact not resting on record, dependent on oral testi-
mony; and it cannot be doubted that the decision of the Land De-
partinent, one way or the other, in reference to these questions, is
conclusive, and not open to relitigation in the courts, except in those
cases of fraud, etc., which permit any deterinination to be re-examin-
ed" (citing cases). See also Johnson v. Drew, 171 U. S. 93, 18
Sup. Ct. 800, 43 L. Ed. 88; Gardner v. Bonestell, 180 U. S. 362, 21
Sup. Ct. 399, 45 L. Ed. 574.
But there is another class of cases in which the rule is somewhat
differently, and perhaps more broadly, stated, and that is, that where
Congress has committed to the head of a department certain duties
requiring the exercise of judgment and discretion, his action there-
on, whether it involve questions of law or fact, will not be reviewed
by the courts unless he has exceeded his authority or this court should
be of opinion that his action was clearly wrong. In the early case
of Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 599, it was said that
the official duties of the head of an executive department, whether
imposed by act of Congress or resolution, are not mere ministerial
duties; and, as was said by this court in the recent case of United
States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 324, 23 Sup.
Ct. 702, 47 L. Ed. 1076: "Whether he decided right or wrong is
not the question. Having jurisdiction to decide at all, he had nec-
essarily jurisdiction, and it was his duty to decide as he thought the
law was, and the courts have no power whatever, under those cir-
cumstances, to review his determination by mandamus or injunc-
tion.”
Ch. 9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
665
In Marquez v. Frisbie, 101 U. S. 473, 476, 25 L. Ed. 800, 801,
which was a bill in equity to review the decision of the Land De-
partment in a pre-emption case, Mr. Justice Miller remarked: "This
means, and it is a sound principle, that where there is a mixed ques-
tion of law and fact, and the court cannot so separate it as to see
clearly where the mistake of law is, the decision of the tribunal to
which the law had confided the matter is conclusive." In Gaines v.
Thompson, 7 Wall. 317, 19 L. Ed. 62, it was held that the court would
no more interfere by injunction than by mandamus to control the
action of the head of a department; and in United States ex rel.
Dunlap v. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354, it was
said that the courts 'will not interfere by mandamus with the execut-
tive officers of the government in the exercise of their ordinary official
duties, even where those duties require an interpretation of the law,
no appellate power being given them for that purpose. See, also,
United States ex rel. Redfield v. Windom, 137 U. S. 636, 11 Sup.
Ct. 197, 34 L. Ed. 811.
The rule upon this subject may be summarized as follows: That
where the decision of questions of fact is committed by Congress
to the judgment and discretion of the head of a department, his de-
cision thereon is conclusive; and that even upon mixed questions of
law and fact, or of law alone, his action will carry with it a strong
presumption of its correctness, and the courts will not ordinarily
review it, although they may have the power, and will occasionally
exercise the right of so doing.
Upon this principle, and because we thought the question involved
one of law rather than of fact, and one of great general importance,
we have reviewed the action of the Postmaster General in holding
serial novels to be books rather than periodicals; but it is not intended
to intimate that in every case hereafter arising the question whether
a certain publication shall be considered a book or a periodical shall
be reviewed by this court. In such case the decision of the Post-
Office Department, rendered in the exercise of a reasonable discre-
tion, will be treated as conclusive.
In the case of Masters in Music the question really is whether a
pamphlet, complete in itself, treating of the works of a single master,
with a greater part of the pamphlet devoted to specimens of his
genius, shall be controlled by the cover, which declared that these
numbers will be issued monthly, at a certain subscription price per
year. Although a comparison of the exhibit with the statute may
raise only a question of law, the action of the Postinaster General
may have been, to a certain extent, guided by extraneous information
obtained by him, so that the question involved would not be found
merely a question of law, but a mixed question of law and fact.
While, as already observed, the question is one of doubt, we think
the decision of the Postmaster General, who is vested by Congress
666
(Part 2
RELIEF AGAINST ADMINISTRATIVD ACTION.
with the power to exercise his judgment and discretion in the matter,
should be accepted as final.
The decree of the Court of Appeals is therefore affirmed.
Mr. Justice HARLAN, with whom concurred the CHIEF JUSTICE (dis-
senting).
The CHIEF JUSTICE and myself are of opinion that the publication
here in question is second-class mailable matter, and cannot concur
in the opinion and judgment of the court. Our reasons for dissent-
ing are stated in the opinion filed by us in Houghton v. Payne (just
decided) 194 U. S. 88, 24 Sup. Ct. 590, 48 L. Ed. 888.
But there are some things in the opinion of the court in this case
to which we shall advert. It is said that the case is one of doubt.
Now, it was admitted at the bar by the government that the publica-
tion known as Masters in Music would be carried in the inails as
second-class matter if the question be decided in accordance with the
construction placed upon the statute by the department for more than
sixteen years continuously prior to the present ruling of the depart-
ment. We had supposed it to be firmly settled that the established
practice of an executive department charged with the execution of a
statute will be respected and followed—especially if it has been
long continued-unless such practice rests upon a construction of the
statute which is clearly and obviously wrong. In United States v.
Philbrick, 120 U. S. 59, 7 Sup. Ct. 413, 30 L. Ed. 561, which in-
volved the construction placed by an executive department upon an
act of Congress, this court said: "Since it is not clear that that con-
struction was erroneous, it ought not now to be overturned.” So in
United States v. Healey, 160 U. S. 145, 16 Sup. Ct. 247, 40 L. Ed.
372, the court said that it would accept the uniform interpretation
by the Interior Department of an act relating to the public lands, “as
the true one, if, upon examining the statute, we found its meaning
to be at all doubtful or obscure.
The authorities to that effect are numerous. Edwards v. Darby,
12 Wheat. 206, 6 L. Ed. 603; Hahn v. United States, 107 U. S. 402,
2 Sup. Ct. 494, 27 L. Ed. 527; United States v. Graham, 110 U. S.
219, 3 Sup. Ct. 582, 28 L. Ed. 126; Brown v. United States, 113
U. S. 571, 5 Sup. Ct. 648, 28 L. Ed. 1080; United States v. Phil-
brick, 120 U. S. 59, 7 Sup. Ct. 413, 30 L. Ed. 561; United States v.
Johnston, 124 U. S. 236, 8 Sup. Ct. 495, 31 L. Ed. 415; United States
v. Hill, 120 U. S. 183,7 Sup. Ct. 510, 30 L. Ed. 632; United States
v. Finnell, 185 U. S. 236, 22 Sup. Ct. 633, 46 L. Ed. 890; United
States v. Alabama G. S. R. Co., 142 U. S. 615, 12 Sup. Ct. 306, 35
L. Ed. 1134; Hewitt v. Schultz, 180 U. S. 139, 157, 21 Sup. Ct.
309, 45 L. Ed. 463, 472. Some of them are cited in the opinion of
the court in Houghton v. Payne. The rule of construction which
this court has recognized for more than three-quarters of a century
is now overthrown. For, it is adjudged that the practice of the
Ch.9) JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL.
667
Post-Office Department, covering a period of sixteen years and more,
need not be regarded in this case, although the construction of the
statute in question is admitted to be doubtful. We cannot give our
assent to this view.46
46 See Houghton v. Payne, 194 U. S. 38, 24 Sup. Ct. 590, 48 L. Ed. 889
(1904); Payne v. United States ex rel. Railway Publ'g Co., 20 App. D. C.
581 (1902).
See T. R. Powell, Conclusiveness of Administrative Determinations in the
Federal Government, American Political Science Review, I, p. 583.
Cases in this collection illustrating appeal to courts in matters relating to
postal administration: Teal v. Felton, 12 How. 284, 13 L. Ed. 990 (1851);
Teal v. Felton, 1 N. Y. 537, 49 Am. Dec. 352 (1848); U. S. v. Griswold, 8 Ariz.
453, 76 Pac. 596 (1904); Whitfield v. Lord Le Despencer, Cowp. 754 (1778);
Keenan v. Southworth, 110 Mass. 474, 14 Am. Rep. 013 (1872); U. S. v. Pear-
son (C. C.) 32 Fed. 309 (1887).
*
INDEX
(THE FIGURES REFER TO PAGES]
ABUSE,
of power, 579 n., 583, 630.
of discretion, 70, 72.
ADMINISTRATIVE DETERMINATION,
nature of, 10, 13.
judicial form of, 16 1.
ADMINISTRATIVE EXECUTION, 235-268.
ADMINISTRATIVE AND JUDICIAL FUNCTION, 169, 170.
ALIENS,
see Immigration.
ANCILLARY JUDICIAL PROCEEDINGS IN AID OF ADMINISTRATION,
229. 229.
:
ANIMALS,
diseased, destruction of, 535.
running at large, 258, 346.
APPEAL,
to higher administrative authority, 611, 622, 655.
not a matter of constitutional right, 123.
whether exclusive of other remedy, 528 n.
to court, 13 n., 77 11., 517-528.
list of cases in collection, 529 n.
from administrative discretion, 523, 523 n., 525 n.
from lemoval from office, 520.
APPOINTMENT TO OFFICE,
certiorari to compel, 473.
Whether to be in writing, 86 n.
APPRAISEMENT OF IMPORTS, 204, 208.
conclusiveness of administrative appraisement, 580.
ARREST,
municipal liability for wrongful, 355.
under military authority, 553.
see Habeas Corpus.
ASSESSMENT OF TAXES,
notice in case of, 115-131.
in case of increase 125, 130.
question of law and jurisdiction, 556, 561, 506, 570.
question of fact, 572, 576 11.
question of value, 577.
unequal, 583.
judicial nature of, 297.
ministerial nature, 334.
certiorari to review, 466.
ASSESSORS,
action against, 297, 334.
FR.ADM. LAW
(669)
1
4
670
INDEX.
[The figures refer to pages.]
ASSUMPSIT,
against collector of custonis, 316, 319.
ATTORNEY GENERAL,
and quo warranto, 508.
BOARDS,
official, mode of action of, 86-90.
mandamus against, 431.
BOND,
official, action on, 329.
mandamus to approve, 451.
BUILDING LAWS,
enforcement of, 240, 232.
by pulling down building, 282.
CEMETERY,
location of, 76, 200.
CERTIORARI, 464492.
list of cases in collection, 492 n.
discretion in allowance of writ, 503, 504, 505.
evidence to guide discretion, 504.
to review evidence and control findings of fact, 215, 480.
jurisdictional and nonjurisdictional error, 475, 478, 479, 480.
to review ordinances, 466.
to review void acts, 488, 490.
and quo warranto, 469, 472.
New York statute, 482.
CHARGES,
administrative action based on, 183, 185, 188.
CHIEF EXECUTIVE,
action against, 284 2.
powers of, 4.
CHINESE EXCLUSION ACTS, 616 .
see Immigration.
CIVIL SERVICE LAWS,
administration of, certiorari, 473, 485, 487.
appeal to court, 520.
CLAIMS,
audit and allowance of, 10.
judicial review, 648 2.
mandamus to compel allowance, 434.
action for rejecting, 438 n.
commission of (Illinois), 365.
court of, Illinois, 366.
United States, 367.
Tucker act, 383, 384.
COLLECTOR OF CUSTOMS,
action against, 314, 316, 319, 325 n., 561, 566, 570, 580.
COLLECTOR OF TAXES,
action against, 334, 339.
COMMITMENT,
power of, 217.
for nonpayment of taxes, 235 n.
CONCLUSIVENESS OF ADMINISTRATIVE DETERMINATION,
chapter 9, 530-067.
notice, 141-144, 150, 154.
INDEX.
671
[The figures refer to pages.]
CONDEMNATION OF PROPERTY,
for public use, action against government for, 372.
in exercise of police power, notice, 132.
liability for, 306.
CONDITIONS,
annexed to administrative action, validity of, 33-43.
CONSENT,
private, as condition of administrative license or permit, 35, 36 n.
CONSIDERATIONS,
guiding discretion, 70–82.
influencing public acts, 33, 36 n.
CONSTRUCTION OF STATUTE,
administrative, judicial review of, 638, 646, 657, 662.
conclusiveness of, 566, 570.
mandamus to control, 434, 438, 442 11.
COUNTY COMMISSIONERS, 10, 13 n., 95, 102, 404.
appeal from, 517 n.
COURTS,
question of constitutional power to entertain appeal from administra-
tive authority, 517, 520.
question of power to act in aid of administration, 222, 229.
CROSS-EXAMINATION,
right to in administrative proceedings, 206.
CUSTOMS ADMINISTRATION,
action against government, 376.
CUSTOMS DUTIES,
remedy for unlawful exaction, 314, 316, 319, 325 n., 370, 561, 566, 570, 580.
CUSTOMS OFFICERS,
liability of, 533.
and see Collector of Customs.
.
DE FACTO OFFICERS, 111-114.
DEFAULTERS,
public, summary process against, 235.
DEFENSE TO ENFORCEMENT PROCEEDINGS,
list of cases in collection, 529.
DE JURE AUTHORITY,
when required, 109, 113.
DELEGATION OF LEGISLATIVE POWER TO ADMINISTRATIVE OF-
FICER, 43, 51, 56, 60 1.
DENTISTRY,
practice of, striking name from register, 285.
refusal of license, 62, 72.
DISCOVERY,
in aid of administrative action, 222, 229.
DISCRETION, 61-85.
abuse of, 70, 72.
fairness of, and mandamus, 448, 449, 451, 453, 510.
in granting extraordinary legal remedies, 500-516.
bound by legislative policy, 70, 607.
unregulated, 82.
considerations to guide, 70–82.
see Ministerial Acts.
DISPENSING POWER,
not vested in chief executive, 6 n.
672
INDEX.
[The figures refer to pages.]
DISPOSSESSION BY GOVERNMENT, 368, 387,
DISTRESS FOR NONPAYMENT OF TAXES,
notice before, 122 n.
DISTRESS WARRANTS, 235.
DRAINAGE COMMISSIONERS, 92, 468.
DRAINAGE DISTRICTS,
determining extent, certiorari, 468.
quo warranto, 513.
DRAINAGE PROCEEDINGS, 117.
DUTIES PAID,
action against government for, 376.
see, also, Collector of Customs.
DUTY UNDER STATUTE,
whether dependent on admiuistrative action, 51.
Aue preus 625
EJECTMENT,
against officers of goverirment, 387, 393 n.
ELECTION OFFICERS,
actions against, 290, 294, 296, 302.
mandamus against, 443, 445 n.
EXPLOYÉS,
l'emoval of, 179, 185, 190, 473, 485, 487, 320.
ENFORCEMENT,
defense to, list of cases in collection, 529.
ENGLISH LOCAL GOVERNMENT,
judicial form of administration, 16 u.
ENGLISH PUBLIC HEALTH ACT 1873, 29, 132 n.
EQUALIZATION OF TAXES, 121.
board of, mandamus agaiust, 579 n.
EQUITY,
jurisdiction regarding political acts, 397, 399 n.
regarding removal from otfice, 399.
jurisdiction to enforce laws, +22 u,
and see Injunctions.
ERROR,
jurisdictional, see Jurisdiction.
nonjurisdictional, 297.
EVIDENCE,
in administrative proceedings, 192–216.
refusal to hear, as ground of judicial relief, 630.
EXAMINATION,
judicial, in aid of administrative action, 229.
EXAMINING BOARDS, 63, 72,
notice and hearing, 193.
appeal, 526, 528 n.
EXECUTIVE DUTIES,
mandamus to control, 446.
EXECUTIVE POWER, 4.
.
FACT,
administrative determination of, conclusiveness, 542, 544, 548, 553, 572,
611, 622, 625, 630.
questions of, certiorari, 479, 480, 482 n.
FACTORY INSPECTORS, 56.
INDEX.
673
[The figures refer to pages.]
FEDERAL OFFICERS,
action against, 314, 316, 319, 326.
mandamus against, 454, 459, 462.
FINE,
summary action to collect, 258,
FIRE DEPARTMENT,
order of, whether conclusive as to facts, 544.
FIRE ESCAPES,
duty to provide, 51.
FISH COMMISSIONERS,
notice, 154.
summary action, 262.
FISHING UTENSILS,
unlawful, 262.
FOOD,
unwholesome or unfit for use, 132, 256, 262 n.
FORFEITURE BY ADMINISTRATIVE PROCESS, 258, 262.
FRAUD INDUCING ADMINISTRATIVE ACT,
relief against, 632.
FRENCH LAW,
regarding liability of judges, 280.
GAMING UTENSILS,
unlawful, 260.
GENERAL ORDER,
when improper, 29 n.
GEORGIA,
statute regarding mandamus, 421.
GERMAN LAW,
liability of judges, 280 11.
suit against state or public corporation, 381 n.
appeal from administrative action to courts, 517 n.
GOVERNMENT,
action against, 303–395.
for tort, 368.
to recover duties paid, 376.
for taking property for public use, 372.
GOVERNOR,
powers of, 4.
liability of, 284 n.
mandamus against, 179, 448 1.
power to remove from office, 4, 172, 176, 179.
conclusiveness of determination of fact, 553.
GOVERNOR OF COLONY,
action against, 280.
HABEAS CORPUS, 498.
list of cases in collection, 499 11.
in case of injunction without jurisdiction, S99.
to review exclusion of aliens, 611-032.
HEADS OF DEPARTMENTS,
action against, 284 1., 397, 438 n.
mandamus against, 434, 438, 454, 646.
HEALTH AUTHORITIES, 12, 26, 30, 36, 40, 44, 76.
notice, 136, 137, 139, 150, 167.
hearing and evidence, 200.
FR.ADA.LAW-43
A
674
INDEX.
[The figures refer to pages.]
HEALTH AUTHORITIES–Continued,
lia bility, 306, 313 n., 535.
action to restrain, 416 n.
list of cases in collection regarding judicial review of acts of, 548 n.
HEALTH LEGISLATION,
history regarding notice, 145 n. .
HIGHWAY,
obstruction of, 243, 244.
HIGHWAY OFTICERS,
action against, 303, 337.
nature of duties, 306 1.
HIGHWAY PROCEEDINGS, 90, 93, 95, 99, 102,
ILLINOIS,
acts regarding suits against state, 363-667.
IMMIGRATION,
exclusion of aliens, 611.
deportation, 616 n.
conclusive determination of fact, 611.
statute excluding judicial review, 616 n., 617.
alienage, as question of law, 618.
as question of fact, 622, 625, 630.
IMPLIED CONTRACT,
municipal liability on, 359, 362 n.
liability of government on, 372, 376.
IJIPORTATION OF GOODS, 60 n., 159 n.
IMPORTS,
appraisement, 204, 208, 580.
classification, 582.
destruction oľ, 202 n.
IMPROVEMENTS,
requirement of, 26, 30.
notice, 134, 136, 145.
IXEQUALITY OF ADMINISTRATION,
as ground of judicial relief, 583.
INTERIOR OFFICER,
whether protected by process or order, 332, 334, 337, 339.
INFORMATION,
power to require, 217–234.
IXJUNCTIONS, 396–419.
list of cases, 423 n.
to restrain political acts, 397, 399 1.
to restrain removal from office, 399.
to restrain taxation proceedings, 417, 419 n.
agaiust exercise of police power, 408, 413, 416 n.
against health authorities, 416 n.
to restrain violation of laws, 422 11.
against carrying out order of superior officer, 657.
INSPECTION OFFICERS,
liability of, 287, 312.
jurisdictional limitations, 521, 533 n.
INSURANCE COMMISSIONER,
question of judicial review of acts of, 602, 604, 607.
INSURANCE COMPANIES,
admission to do business, 602; 604, 607.
INTERSTATE COMMERCE ACT, 25 n., 599 n.
INDEX.
675
+
[The figures refer to pages.]
INTERSTATE COMMERCE COMMISSION, 13, 18, 20.
proceedings before, 10 n.
power to call on court for aid, 222.
provisions of law regarding review of orders, 599 n.
INTOXICATING LIQUORS, 33, 35, 61, 67.
license, 448, 449, 451.
notice and hearing, 161, 164, 183, 192, 196, 198.
summary action, 243 n., 249.
mandamus, 433.
to compel enforcement of law, 446.
certiorari, 484, 490.
appeal, 523, 525 n.
list of cases in collection regarding judicial review, 549 n.
JUDGES,
actions against, 269.
foreign law, 280 n.
administrative powers vested in, 231.
JUDGMENTS,
in court of claims, 385.
JUDICIAL ACTS,
and certiorari, 466, 470, 473.
JUDICIAL FORM OF ADMINISTRATIVE ACTION, 13, 16 n.
JUDICIAL POWER AND ADMINISTRATIVE AUTHORITIES, 217, 222,
229.
JURISDICTION,
for purpose of judicial liability, 269.
for purpose of administrative liability and for purpose of review, 273,
274, 306 n.
excess of in collection of revenue, 556, 561.
quo warranto, 492, 495.
JURISDICTIONAL FACTS,
erroneous finding as to, 534, 535 n., 535, 548, 553, 556, 561, 618, 022, 625,
630.
recital of, 92, 93, 101, 104.
JURISDICTIONAL PREREQUISITES, 91, 93, 95, 144 n.
JURY TRIAL,
not required in administrative proceedings, 192, 212.
JUSTICE OF PEACE, 16 n.
liability, 276.
LEGISLATIVE CREATION,
rights of, administrative control over, 530.
LEGISLATIVE DETERMINATION,
notice, 154.
LIABILITY,
official, 142, 269–345.
list of cases in collection, 345 n.
LICENSES,
grant or revocation of, 33, 35, 36, 40, 61, 62, 67, 70 n., 72, 77, SO.
notice 160–172:
hearing, 192-202.
action for refusal, 284.
for revocation, 301.
mandamus to compel issue, 432, 448, 449, 451.
certiorari against revocation, 484, 490.
appeal from refusal, 523, 525 n.
list of cases in collection regarding judicial review, 549 n.
676
INDEX.
[The figures refer to pages.]
LIQUORS,
see Intoxicating Liquors.
MAJORITY,
acts of, binding, $7, 89.
MALICE,
as affecting liability, 271, 283, 290 n.
VANDAMUS, 61, 62, 66, 67, 72, 420-463.
discretion in allowance of writ, 500.
absence of other efficacious remedy, 438, 656.
against governor, 179, 448 n.
against heads of departments, 434, 438, 454, 646.
against board or corporation, 431.
to enforce executive duties, 446.
when futile, 443.
nature and form of proceeding, 422, 425.
early practice, 423.
entitling of proceeding, 422.
interest of relator,, 428, 429.
pleadings, 425, 427,
requirements of petition, 423.
return, 427.
remedy for refusal to obey, 432, 433 .
list of cases in collection, 463 n.
and see Ministerial Acts.
JARSHAL
United States, 6.
MARTIAL LAW,
proclamation of, 553.
MEDICAL BOARDS,
findings of, 542.
MEDICAL LICENSE,
grant or revocation, notice, and hearing, 165, 193.
appeal, 526.
MILITARY AUTHORITY,
judicial review of acts of, list of cases in collection, 536 n.
MILITARY NECESSITY,
justification by, 283.
MILITARY OFFICER,
liability, 332
MILITARY ORDERS,
conclusiveness of finding of facts, 548, 552 n.
MILK,
sale of, 40.
MILK DEALER'S LICENSE,
rerocation, notice, 167.
MINISTERIAL AND DISCRETIONARY ACTS,
mandamus, 433, 434, 468, 443 n., 448, 449, 449 n., 451, 433, 655.
notice, 161.
MINISTERIAL AND JUDICIAL ACTION, 286.
MONEY HAD AND RECEIVED,
action for, against municipal corporation, 359, 362 n.
by exacting duties at unlawful rate, 316, 319.
MULTIPLICITY OF SUITS,
ground for injunction, 408, 419, 587.
MUNICIPAL CORPORATIONS,
liability, 346-362.
.
INDEX.
677
[The figures refer to pages.]
NAVIGATION,
commissioner of, 566, 570.
NEBRASKA,
statute allowing review of administrative errors, 517 R.
NEGLECT OF OFFICIAL DUTY,
liability, 307 n., 346 n.
NEW YORK,
city law, 422 n.
railroad law, 10 n.
city of, charter, § 1196, 358.
NONFEASANCE AND MISFEASANCE, 290.
NOTICE,
requirement of, 17, 115–191, 310.
whether implied, 126 n.
evidence of, 93.
sufficiency of, 183–191.
history regarding, in health legislation, 145 a.
NUISANCES,
abatement of, 16, 26, 93.
notice, 134, 137, 139, 150.
hearing and evidence, 210, 212.
summary, 243-237.
maintained by city, 350.
ΟΑΤΗ, ,
power of administrative officer to administer, 201 n., 217 n.
of party, when decisire in administrative proceeding, 204 n.
OFFICO,
nature of, 408 n.
removal from, see Removal from Office.
OFFICERS,
actions against, 269-315.
list of cases, 345 n.
OFFICIAL BOND,
liability on, 329.
mandamus to approve, 451.
ORDINANCES,
action to restrain enforcement of, 408, 413, 416 n.
certiorari to review, 466.
tested by quo warranto, 497 n.
injury through nonenforcement of, 346, 350.
PENSIONS,
grant or refusal of, judicial relief in matter of, 438, 648.
PERMIT,
grant or refusal of, 76.
PERSOX,
summary action against, 257 n.
PETITION OF RIGHT, 390.
for recovery of lands, 396 n.
PLACE OF OFFICIAL ACTION, 86 n.
POLICE OFFICERS,
removal of, 178, 185, 190.
POLICE POWER,
notice, 132–172.
municipal liability in exercise of, 355, 356.
.
678
INDEX.
[The igures refer to pages.]
POLITICAL ACTS,
action to restrain, 397, 399 n.
POSTAL ADMINISTRATION,
judicial review of acts of, 657, 662, 667 n.
POSTAL SERVICE,
nature of, 343.
POSTMASTER,
action against, 326, 328 n., 341, 344.
mandamus against, 462.
injunction against, 657.
POUND,
public, summary dealing with animals in, 258.
PRACTITIONER,
striking name off register, 285.
PRESIDENT,
liability of, 284.
conclusiveness of determination of fact, 548.
order to inferior officer, 332.
no dispensing power, 621.
no right of appeal to, from head of department, 517 n.
PRESUMPTION,
of regularity of official action, 89, 90, 100.
PRIVATE KNOWLEDGE,
how far a valid ground of administrative determination, 196, 200, 214,
215, 215 n.
PROCESS,
as protection to inferior officer, 339.
PROHIBITION, 500.
PROOF,
of official action, 91–104.
of official character, 105–111.
PROTECTION,
by process from liability, 339.
by order of superior officer, 332, 334, 337.
PROTECTION ACTS,
for public officers, 284 n., 533.
PUBLIC LANDS,
judicial review in matter of land grants, 632, 638, 645, 646.
PUBLIC MONEYS,
collection of, remedies against, 235, 242 n.
see Claims.
QUALIFICATION,
lack of, as avoiding official acts, 109.
QUARANTINE,
municipal liability for, 356.
QUASI-JUDICIAL DUTIES,
highway officer, 306 n.
QUESTION,
of law, administrative decision, judicial review of, 638, 646, 653, 657, 662.
of fact, see Fact.
QUORUM,
presence of, 88 n., 90 n.
INDEX.
679
[The figures refer to pages.)
QUO WARRANTO, 492, 495, 508, 510.
list of cases in collection, 497 n.
discretion in allowance of, 507, 508, 510.
to review illegal action, 495.
to test validity of ordinances, 497 n.
to test extension of drainage district, 513.
RAILROAD COMMISSIONS, 6, 9 n., 13, 18, 20.
see Interstate Commerce Commission.
RAILROAD,
taxation of (notice), 124.
RAILROAD RATES,
regulation of, 18. 20.
judicial review, 594, 597, 601 n.
REASONABLENESS,
of railroad lates, judicial review, 594, 597, 601 n.
RECEIVER OF TAXES,
warrant issued by, 339, 341 n.
RECITAL,
of jurisdictional facts, 92, 93, 101, 104.
RECORD EVIDENCE, 93, 95, 99 n., 100, 101.
REGULATION,
administrative, power of, 18, 20, 43-60.
REMOVAL FROM OFFICE, 4, 66.
notice, 172-183, 185–191.
hearing and evidence, 214, 215.
action in. equity to restrain, 399.
certiorari, 480, 485, 487.
quo Warranto, 516 n.
REPUTABILITY OF INSTITUTION, 63, 72.
REPUTATION,
of official character as prima facie evidence, 105–109.
RESCISSION OF ADMINISTRATIVD DECISION, 038, 645.
by action in equity, 632.
RESPONDEAT SUPERIOR, 341, 344, 345 n.
REVOCATION OF LICENSES, 30, 40, 38 n., 39 n.
notice, 160–172, 183.
hearing, 192, 196, 198.
certiorari, 481, 490.
list of cases regarding judicial review, 549 n.
see Licenses.
SCHOOL,
authorities, 43.
exclusion from, 495.
SEWERS,
commissioners of, and certiorari, 464, 465, 466 n.
municipal liability, 347, 350 n.
SEPARATION OF POWERS, 9n.
SPECIFIC PERFORMANCE,
action against governient for, 382.
STATE,
action against, 363-367, 376 1., 395 n.
STATE COURTS,
action against federal officers, 326, 328 n.
680
INDEX,
[The figures refer to pages.).
STATE'S ATTORNEY,
and quo warranto, 510, 516.
SWEARING WITNESSES,
power of, 211 n., 217 11.
STATUTE,
whether operative without administrative action, 51.
see Construction.
SUBORDINATE OFFICER,
action against, 332, 334, 337, 339.
SUIT,
nature of, 12.
SUMMARY ABATEMENT OF NUISANCES, 243-257.
history, 243 n., 245 n.
SUMMARY ACTION, 235-268, 306, 313 n.
notice, 252.
SUPERIOR OFFICER,
liability for acts of subordinate, 341, 344.
order of, whether protection to subordinate, 332, 334, 337, 339.
TAXABLE PROPERTY,
amount of, finding as to, 572, 576 n.
conclusiveness of valuation, 577, 580, 582, 583.
TAXATION,
proceedings, 93, 107, 115-131.
notice and hearing, 575 n.
hearing and evidence, 202-209.
power to require information. 217.
action against officers, 297, 301 1., 334, 339.
injunction against, 417, 419 n.
mandamus to compel, 433.
certiorari, 483 2., 488, 503.
jurisdictional and nonjurisdictional facts, 556, 561, 572, 576 n.
judicial review, 556–593.
list of cases in collection regarding, 593 n.
TAXPAYERS' ACTIONS,
to restrain municipal expenditure, 422 n.
TEA,
importation of, 60 n.
TENEMENT HOUSE LEGISLATION, 145.
TESTIMONY,
compelling of, 217, 222.
TORTS,
nonliability of sovereign for, 368, 372 n.
TRESPASS,
municipal liability, 348.
liability of officer, 303.
TRIAL BY JURY,
not required in administrative proceedings, 192, 210, 212.
TROVER,
for detention of imports, 314.
UNEQUAL VALUATION,
judicial relief against, 583.
UNITED STATES COURTS,
mandamus in, 454, 459, 462.
INDEX.
681
[The figures refer to pages.]
VACCINATION,
compulsory, 43, 51 n.
VALUATION OF TAXABLE PROPERTY,
question of judicial review, 377, 580, 581, 583.
VOTE,
rejection, liability for, 290, 294, 296, 302.
WATERS,
control over, see Fish Commissioners.
WITNESSES,
contumacious, before administrative authorities, 217, 222.
examination of, on customs appraisal, 204, 208.
right to, on administrative hearing, 202, 204, 204 n., 210, 212.
WEST PUBLIBHING CO., PRINTERS, ST. PAUL, MINN.
UNIVERSITY OF MICHIGAN
3 9015 02242 7853
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