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Full text of "Cases on administrative law : selected from decisions of English and American court"

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http://www.archive.org/details/cu31924019962244 



CASES 



ON 



ADMINISTRATIVE LAW 



SELECTED FROM DECISIONS OF 



ENGLISH AND AMERICAN COURTS 



BY 

ERNST FREUND 

PROFESSOR OP LAW IN THE UNIVERSITY OP CHICAGO 



AMERICAN CASEBOOK SERIES 
JAMES BROWN SCOTT 

- GENERAL EDITOR 



ST, PAUL 

WEST PUBLISHING COMPANY 
1911 



^ ¥^^ d-j 



OOPTEIGHT, 1911 
BT 

WEST PUBLISiJlNG COMPANY 
(Fb.Adm.Law) 



THE AMERICAN CASEBOOK SERIES 



The first of the American Casebook Series, Mikell's Cases on Crim- 
inal Law, issued in December, 1908, contained in its .preface an able 
argument by Mr. James Brown Scott, the General Editor of the Se- 
ries, in favor of the case method of law teaching. Until 1915 this 
preface appeared in each of the volumes published in the series. 
But the teachers of law have moved onward, and the argument 
that was necessary in 1908 has now become needless. That such 
is the case becomes strikingly manifest to one examining three im- 
portant documents that fittingly mark the progress of legal education 
in America. In 1893 the United States Bureau of Education pub- 
lished a report on Legal Education prepared by the American Bar As- 
sociation's Committee on Legal Education, and manifestly the work 
of that Committee's accomplished chairman, William G. Hammond, 
in which the three methods of teaching law then in vogue — that is, by 
lectures, by text-book, and by selected cases — were described and com- 
mented upon, but without indication of preference. The next report 
of the Bureau of Education dealing with legal education, published 
in 1914, contains these unequivocal statements: 

"To-day the case method forms the principal, if not the exclusive, 
method of teaching in nearly all of the stronger law schools of the 
country. Lectures on special subjects are of course still delivered in 
all law schools, and this doubtless always will be the case. But for 
staple instruction in the important branches of common law the case 
has proved itself as the best available material for use practically ev- 
erywhere. * * * The case method is to-day the principal method 
of instruction in the great majority of the schools of this country." 

But the most striking evidence of the present stage of development 
of legal instruction in American Law Schools is to be found in the 
special repOrt, made by Professor Redlich to_the Carnegie Foundation 
for the Advancement of Teaching, on "The Case Method in American 
Law Schools." Professor Redlich, of the Faculty of Law in the Uni- 
versity of Vienna, was brought to this country to make a special study 
of methods of legal instruction in the United States froin the stand- 
point of one free from those prejudices necessarily engendered in 
American teachers through their relation to the struggle for supremacy 
so long, and at one time so vehemently, waged among the rival sys- 
tems. From this masterly report, so replete with brilliant analysis 
and discriminating comment, the following brief extracts are taken. 
Speaking of the text-book method Professor Redlich says : 

"The principles are laid down in the text-book and in the profes- 
sor's lectures, ready made and neatly rounded, the predigested essence 

(ill) 



IV PREFACH 

of many judicial decisions. The pupil has simply to accept them and 
to inscribe them" so ;far as possible in his memory. In this way the 
scientific element of instruction is apparently excluded from the very 
first. Even though the representatives of this instruction certainly do 
regard law as a science — that is to say, as a system of thought, a group- 
ing of concepts to be satisfactorily explained by historical research and 
logical deduction — they are not willing to teach this science, but o^'ly 
its results. The inevitable danger which appears to accompany this 
method of teaching is that of developing a mechanical, superficial in- 
struction in abstract maxims, instead of a genuine intellectual probing 
of the subject-matter of the law, fulfilling the requirements of a 
science." 

Turning to the case method Professor Redlich comments as follows : 

"It emphasizes the scientific character of -legal thought; it goes now 
a step further, however, and demands that law, just because it is a 
science, must also be taught scientifically. From this point of view it 
very properly rejects the elementary school type of existing legal edu- 
cation as inadequate to develop the specific legal mode of thinking, as 
inadequate to make the basis, the logical foundation, of the separate 
legal principles really intelligible to the students. Consequently, as the 
method was developed, it laid the main emphasis upon precisely that 
aspect of the training which the older text-book school entirely neg- 
lected — the training of the student in intellectual independence, in in- 
dividual thinking, in digging out the principles through penetrating 
analysis of the material found withm separate cases ; material which 
contains, all mixed in with one another, both the facts, as life creates 
them, which generate the law, and at the same time rules of the law 
itself, component parts of the general system. In the fact that, as has 
been said before, it has actually accomplished this purpose, lies the 
great success of the case method. For it really teaches the pupil to 
think in the way that any practical lawyer — whether dealing with writ- 
ten or with unwritten law — ought to and has to think. It prepares the 
student in precisely the way which, in a country of case law, leads to 
full powers of .legal understanding and legal acumen ; that is to say, 
by niaking the law pupil familiar with the law through incessant prac- 
tice in the analysis of law cases, where the concepts, principles, and 
rules of Anglo-American law are recorded, not as dry abstractions, but 
as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating, 
social and economic life of man. Thus in the modern American law 
school professional practice is preceded by a genuine course of study, 
the methods of which are perfectly adapted to the nature of the com- 
mon law." 

The general purpose and scope of this series were clearly stated in 
the original announcement: 

"The General Editor takes pleasure in announcing a series of schol- 
arly casebooks, prepared with special reference to the needs and limi- 



PKEPACB V 

tations of the classroom, on the fundamental subjects of legal educa- 
tion, which, through a judicious rearrangement of emphasis, shall pro- 
vide adequate training combined with a thorough knowledge of the 
general principles of the subject. The collection will develop the law 
historically and scientifically; English cases will give the origin and 
development of the law in England ; American cases will trace its ex- 
pansion and modification in America ; notes and annotations will sug- 
gest 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 necessary con- 
nection between the past and the present will be obvious. 

"The importaijce 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. * * * If it be granted that all, or nearly all, the studies re- 
quired for admission 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 legal 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. * * * 

"The following subjects are deemed essential in that a knowledge of 
them (with the exception of International Law and General Juris- 
prudence) is almost universally required for admission to the bar : 

Administrative Law. Equity Pleading. 

Agency. , Evidence. 

Bailments. ^ Insurance. 

Bills and Notes. ' International Law. 

Carriers. Jurisprudence. 

Code Pleading. Legal Ethics. 

Common-Law Pleading. Partnership. 

Conflict of Laws. , Personal Property. 

Constitutional Law. Public Corporations. 

Contracts. Quasi Contracts. 

Corporations. Real Property. 

Criminal Law. Sales. 

Criminal Procedure. Suretyship. 

Damages. Torts. 

Domestic Relations. Trusts. , 

Equity. Wills and Administration. 

"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. 



VI X PEEFACB 

and as the cases are generally interesting, it is thought that the book 
may be larger than otherwise would be the case. 

"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 classroom and the needs of the students will furnish 
a sound basis of selection." 

Since this announcement of the Series was first made there have 
been published books on the following subjects: 

Administrative Law. By Ernst Freund, Professor of L,aw in the 
University of Chicago. 

Agency. By Edwin C. Goddard, Professor of Law in the University 
of Michigan. 

Bills and Notes. By Howard L. Smith, Professor of L,aw in the Uni- 
versity of Wisconsin, and Underbill Moore, Professor of Law in 
Columbia University. 

Carriers. By Frederick Green, Professor of Law in the University of 
Illinois. 

Conflict of Laws. By Ernest G. Lorenzen, Professor of Law in 
Yale University. 

Constitutional Law. By James Parker Hall, Dean of the Faculty of 
Law in thfe Uiliversity of Chicago. 

Contracts. By Arthur L- Corbin, Professor of Law in Yale University. 

Corporations. By Harry S. Richards, Dean of the Faculty of Law in 
the University of Wisconsin. 

Criminal Law. By William E. Mikell, Dean of the Faculty, of Law in 
the University of Pennsylvania. 

Criminal Procedure. By William E. Mikell, Dean of the Faculty of 
Law in the University of Pennsylvania. 

Damages. By Floyd R. Methem, Professor of Law in the University 
of Chicago, and Barry Gilbert, of the Chicago Bar. 

Equity. By George H. Boke, Professor of Law in the Uiiiversity of 
Oklahoma. 

Evidence. By Edward W. Hinton, Professor of Law in the Universi- 
ty of Chicago. 

Insurance. By William R. Vance, Professor of Law in Yale Uni- 
versity. 

International Law. By James Brown Scott, Professor of International 
Law in Johns Hopkins University. , 

Legal Ethics, Cases and Other Authorities on. By George P. Costigan, 
Jr., Professor of Law in Northwestern University. 

Partnership. By Eugene A. Gilmore, Professor of Law in the Uni- 
vefsity of Wisconsin. 



PKEFACB ,Vn 

Persons (including Marriage and Divorce). By Albert M. Kales, of 

the Chicago Bar, and Chester G. Vernier, Professor of Law in 

Stanford University. 
Pleading {Common Lazv). By Clarke B. Whittier, Professor of Law 

in Stanford University, and Edmund M. Morgan, Professor of 

Law in Yale University. 
Property (Titles to Real Property). By Ralph W. Aigler, Professor 

of Law in the University of Michigan. 
Property {Personal). By Harry A. Bigelow, Professor of Law in the 

University of Chicago. 
Property (Rights in Land). By Harry A. Bigelow, Professor of 

Law in the University of Chicago. 
Property (Wills, Descent, and Administration). By George P. Costi- 

gan, Jr., Professor of Law in Northwestern University. 
Property {Future Interests). By Albert M. Kales, of the Chicago 

Bar. 

Quasi Contracts. By Edward S. Thurston, Professor of Law in Yale 
University. 

Sales. By Frederic C. Woodward, Professor of Law in the University 
of Chicago." 

Suretyship. By Crawford D. Hening, formerly Professor of Law 
in the University of Pennsylvania. 
• Torts. By Charles M. Hepburn, Dean of the Faculty of Law in the 
University of Indiana. 

Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer- 
sity of New York. 

It is earnestly hoped and believed that the books thus far published 
in this series, with the sincere purpose of furthering scientific training 
in the law, have not been without their influence in bringing about a 
fuller understanding and a wider use of the case method. 

,Wii,i<iAM R. Vancb, 

General Editor. 
June, 1921. 



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 — Condition^ Annexed to Grant of License 3.3 

6. Same — Licensing Power and Power to Revoke Licenses. . . 1 36 

7. Administrative Powers of Regulation — Scope and Validity 43 

CHAPTER II. 

Administhativb Discretion. 

8. Construction of Powers 61 

'.). Considerations Guiding Discretion 70 

10. Validity of Unregulated Discretion. 82 

CHAPTER III. 

Form and Proof of Official Acts. 

11. Action of Official Bodies — The Body must be Convened 80 

12. Same — Act of Majority Binds Body 87 

13! Same — Presumption That All Met or Were Notified 89 

14. Evidence of Official Action— On Direct Attack 91 

15. Same — In Enforcement Proceedings 95 

16. Same— In Collateral Proceedings 99 

17. Evidence of Official Character 105 

18. De Facto Office and Authority • Ill 

Fk.Adm.Law (ix) 



TABLE OF CONTENTS. 



CHAPTER IV, 



Section Notice. Page- 

19. In Taxation 115 

20. In the Exercise of tlie Police Power 132 

21. In Kevoking Licenses 160 

22. In Removal from Office .' 172 

23. Sufficiency of Notice 183 



CHAPTER V. 

Hearing ard Evidence. ' 

24. In Connection with Licenses 192 

25. In Connection with Revenue. 202 

2C. In Dealing with Nuisances 210 

27. In Removing from Office 214 

28. Power to Obtain Information 217 



CHAPTER VI. 



Administkative Execution, 



29. Distress Warrants 235 

30. Abatement of Nuisances — Recognition and Validity of Power....... 243 

31. Same^Notice before Abatement : 252 

32. • Forfeiture by Administrative Process 258^ 



PART n. 

Relie]? Against Administrative Action, 
chapter vii. 

Actions to Recover Damages ob Monet, 

33. Against Officers^Judges 269 

34. Same — Against Administrative Officers, Error and Illegality 280 

35. Same^^Agatnst Federal Officers 314 

36. Same-^Liability on Official Bond 32& 

37. Same — Actions against Subordinates 332 

38. Same-^Action against Superior Officer 341 

39. Actions against Municipal Corporatitms— In Tort 346 

40. ■ Same — On Implied Contract 359 

41. Action against State or Government 3(i3 



TABLE OF CONTENTS. 



CHAPTER VIII. 

Section ' ' Actions for Specific Relief. Page 

42. In General -. 382 

43. Injunction — In General 3t)6 

44. Same— To Restrain Political Acts and Removal from Office 397 

45. Same — To Restrain Enforcement of Ordinances 408 

46. Same — To Restrain the Assessment and Collection of Taxes 417 

47. Mandamus '. 420 

48. Same — Nature and Form of Proceeding 422 

49. Same — The Return 427 

•50. Same — Interest Required to be Shown 428 

51. Mandamus against Board or Public Corporation 431 

.52. Refusal to Obey Mandamus 432 

53. Province of the Writ of Mandamus 433 

54. Same — Control of Fairness of Discretion 448 

55. Mandamus in the Courts of the United States 454 

56. Certiorari — Note 464 

57. Same — Authorities and Actions Subject to Writ 404 

58. Same — Scope of Review ; What Kinds of Error Corrected 475 

.59. Quo Warranto 492 

60. Habeas Corpus .« 498 

61. Prohibition— Note 500 

62. Judicial Discretion in Allowance of Extraordinary Legal Remedies — 

Mandamus ' 500 

63. Same — Certiorari 503 

64. Same — Quo Warranto 507 

65. Appeal 517 

66. Defense to Enforcement Proceedings — Note , 529. 

CHAPTER IX. 

JumSDICTION, CONCLUSIVBiTESS, AND JUDICIAL CONTKOL. 

67. In General .' 530 

68. Police Power — Jurisdictional Prerequisites 531 

69. Same — Questions of Fact 542 

70. Military Power 548 

71. Taxation and Revenue — Jurisdictional Prerequisites 556 

72. Same — Questions of Law 566 

73. Same — Questions of Fact 572 

74. Same — Questions of Value 577 

75. Railroad Rate Regulation 594 

76. Corporations 602 

77. Immigration — Question of Condition of Alien 611 

78. Same— Question of Alienage as Question of Law 618 

79. Same — Question of Alienage as Question of Fact 622 

80. Public Lands., <^32 

81. Pensions ^^ 

82. Postal Administration 657 

* 



TABLE OF CASES- 

[cases cited in footnotes are indicated by italics, wheke small capitals 

AKE USED, the CASE IS REFERRED TO IN THE TEXT] 



Page 

Abeel V. Clark 50 

JEtna Ins. Co. v. New York 363 

Mtna Life Ins. Co. v. Jones 93 

Allbutt V. General Council of Med- 
ical Education & Registration . . 542 
AWbutt V. General Council. . .443, 40i3 
Allegheny City v. Millville, etc., 

R. Co 80 

A lien V. Sharp '. . 529 

American Casualty Ins. Co. v. Fy- 

■ ler 442 

American School of Magnetic 

Healing v. JlcAnnulty 657 

Amperse v. Kalamazoo 451 

Amy V. Supervisors 432 

Amy V. Sui)ervisors 303, 345 

Arms V. Ayer 51 

Armstrong v. Mwphg 443 

Arnson v. Murphy 325 

Ashhy V. White 296 

AsHBT V. White 293 

Asher V. Cabell 307 

AsMey v. Port Huron 347 

Atiorndy General v. Davy .' 88 

Attorney General v. Guilford 

County Justices 443 

Attorney General v. Northampton 473 

Attorney General v. Sullivan 493 

Auffmordt v. Hedden 204 

Averill v. Smith 316 

Ayers, In re 396 

Ayers v. Hatch 66 

Ayers v. Batch 463 

Bagg's Case ." 423 

Baldwin v. Smith 249 

Baldwin v. Smith 345 

Ball V. Pattridge 404 

Ballon V. State 372 

Bartlett v. Boston 87 

Barton v. Syracuse 350 

Bassett v. Godschall 284 

Bates & Guild Co. v. Payne 662 

Bates & Guild Co. v. Payne 422 



Page 

Bath County v. Amy 459 

Batters v. Dunning 66, 443 

Baumgartner v. Hasty 244 

Beaurain v. Sir Wm. Scott 271 

Bedford v. Rice 113 

Belcher v. Farrar 156 

Beley v. Naphtaly 645 

Bell's Gap R. Co. v. -Common- 
wealth 115 

Belt V. State 372 

Bennett v. Whitney 307 

Beyer v. Tanner 300 

Bisscll V. Jeffersonville 99 

Blaolcet v. Blisard 88 

Blue V. Beach 51 

Board of Com'rs of Huntington 

County V. Heaston 13 

Board of Education of Cincinnati 

V. Voile 350 

Board of Health of City of Yon- 

kers V. Copcutt 144 

Board of Sup'rs of Bureau County 

V. Chicago, B. & Q. R. Co 517 

Board of Sup'rs of Stephenson Co. 

V. Manny 362 

BoUman's Case 517 

Boston <& M. It. R. v. Folsom 468 

Box V. Allen 396 

Boyd V. United States 217 

Boyer v. Jones 242 

Boyle, In re 553 

Bradley v. Fisher 270 

Bradley v. Pisiieb 271 

Bridge St., etc., Co. v. Hogadone.. 268 

Brittain v. Kinnaird 535 

Brotvn v. District Council of Nar- 

ragunsett 517 

Broion v. Perkins. 243 

Brown v. Walker 217 

Burton Stock Car Co. v. Traeger. . 579 

BusHELL's Case 272 

Butterworth v. United States 517 

Buttfleld V. Stranahan 60, 160 

262, 548 



Fr.Adm.Law 



(xiii) 



XIV 



TABLE OF CASES. 



Page 

Buttrich v. Lowell 356 

Byrne v. GMccipo General R. Oo. 36 

Caha V. United States 217 

Calder v. Halket 535 

Camphell v. Phelps 345 

Candee, Ex parte 453 

Capel v. Child 175 

Carr v. United States 3S)5 

Carter v. Colby 154 

Carter v. Harrison 296 

Cary v. Curtis 319 

Case V. Hall 107 

Central of Oeorpia Ry. v. Wright 122 

Chapman v. Limeriolc 86 

Chegaray v. Jenkins 339 

Cherry v. Commonwealth'. 193 

Chester v. Waiash, ete., Co 36 

Chicago v. Burtice 422 

Chicago v. Manhattan Cement Co. 347 
Chicago, M. & St. P. R. Co. v. 

State 594 

Chicago & N. W. R. Co. v. Dey. . . 87 
Chicago & R. J. R. Co. v. Whipple 480 
Chicago, etc., R. Co. v. Nebraska. . 150 

Child V. Brmus 161 

Ghir), Bak Kan v. United States. . . 616 

Cliin Yow V. United States 630 

Chin Yoiv v. United States 499 

Cicero Lumber Co. v. Cicero 84 

City of Aurora v. Schoberlien. .. . 520 

City of Chicago v. Burtice 579 

City of Cliicago v. Oliicago City R. 

Co 408 

City of liowell v. Archambault. .. 36 

City of Ottawa v. People 432 

City of Plilladelphia v. Scott 134 

City of Salem v. Eastern R. Co.. . 150 
City of San Antonio v. White. . . 356 

Clinlcenbeardv. United States 529 

Cochrane v. Frostburg 347 

Cohen v. New York 350 

Colon V. Lisle 268 

Colton V. Hanchett 336, 422 

Commissioners v. Sellew 431 

Commissioners of Enquiry 217 

Commissioners of Highioays v. 

Harper •. 468 

Commissioners of Maxton v. Com- 
missioners of Robeson County. . 443 
Common Council of Oshkosh v. 

State 487 

Commonwealth v. Beaurriarchais . . 364 
Commonwealth v. Emery 217 



Page 

Commonwealth v. Hameb 163 

Commonwealth v. Kane 113 

Common wealtli v. ^insley 160 

Commonwealth v. Kinsley 529 

Commonwealth v. Shortall 556 

Commonwealth v. Sisson 154 

Commonwealth v. Sisson 529 

Commonwealth v. Slifer 175 

Commonicealth v. Wall 193 

Commonwealth v. Yost 87 

Cooper V. Bpard of Works for 

Wadsworth District 252 

Corcoran v. Board of Aldermen of 

Cambridge 122, 126 

Counselman v. Hitcheoclc 217 

Courser v. Powers Ill 

Coxe Bros. & Co. v. Lehigh Valley 

R, Co 18 

Craig V. Charleston 355 

Crampton v. ZabrisTce 422 

Ctjmmings v. Bank 589 

Cunningham v. IS! eagle 6 

Cisarra v. Board of Medical Sup'rs 185 

Daniels v. Hathaway 300 

Darlington v. Mayor 347 

Daughbbtt v. Bkown 104 

Davies, In re 229 

Davis v. Commonwealth 8.j 

Day V. Day 244 

Dc Camp v. Archibald 222 

Decatur y- Paulding 438 

Deems v. Baltimore 251, 416 

Delaney v. Flood 413 

De Lima v. Bidwell 561 

De Lima v. Bidwell 345 

Den, ex dem. Murray v. Hoboken 

Land & Improvement Co 235 

Detroit v. Martin 363 

Detroit, etc., R. Go. v. Osborn. .. . 126 

Devine v. Belt 449 

Doane v. Chicago City R. Co 36 

Dobbins v. Los Angeles 413 

Dodd V. Francisco 76, 200 

Dolan, Appeal of 484 

Doll V. Evans 242 

Dooley v. United States 376 

Doolittle V. Supervisors of Broome 

County 422 

Dorn V. Backer 301 

DoRN V. Backer 559 

Downer v. Lent 301 

Dows V. Chicago 41'! 

Drainage Com'rs v. Griffin 46S 



TABLE OF CASES. 



XV 



Page 
T>BEWE V. COUITON 293 

DuFFiELD ^ . School Dist 50 

Dullam V. Willson ' 172 

DuUam v. WilUon 497 

Duncan v. LyncMurg 350 

Dunn r. Burleiyh 267 

Durgin v. Minot 32 

Earp V. Lee 344 

"Easton v. Calendar 297 

Easton v. Calendar 561 

Eckhardt v. Buffalo 26 

Eclchardt v. Buffalo 421 

Eddy V. Board of Health 251 

E'dson V. Crangle 267 

EMn V. United States 204, 499 

ElUn V. Wilson 303 

Eldred v. Sexton 107 

Eldred v. Sexton 345 

Elliott V. Swartwout. .'. 316 

Erslcine v. Hohnliach 341 

Evans r. Lcivis 497 

Eve V. State 242 

Falls V. Cairo 362 

Fargo v. Hart 421 

Path v. KoErpEL 312 

Feather r. Rcgina 372 

Pelsenthal v. Johnson 122 

Field V. People 4 

Fields r. Siol'lcy 244 

TTire Department of City of New 

York V. Gilmour 544 

Fire Department of City of Netv 

York V. Gilmour 529 

Fischer v. St. Louis 85 

Fisher v. HcGirr 268 

Fitter v. Commontccalth 364 

Fitts v. McGehee 396 

Flahekty. In re 84 

Flying Fish, The 332 

Ft. Plain Bridge Co. v. Sniith 243 

Foster v. Van Wi/clc 479 

Francis v. Francis 36 

Fkench v. Fyan 643 

Fuller V. Colfax Co 10 

Fuller V. Colfax Co 529 

Gage V. Censors of New Hamp- 
shire laectric Medical Society. . 193 

Gage v. Censors of New Hamp- 
shire Electric Medical Society. . 463 

tialbraith v. Littiech :.... 90 

Oalhraith v. Littiech 529 



Page 

Geneva's License , 1^ 

Gibbons v. United States 371 

Gilbert v. Columbia Turnpike Co. 91 
Gilbert v. ColumMa Turnpike Co. 529 

Gillespie v. Palmer 302 

Gillespie v. Palmer 204 

Glidden v. Harrington 575 

Golden v. Department of Health. . 142 

Gonzales v. Williams 618 

Goneales v. Williams 345, 499 

Gordon v. Farrar 29<5 

Gordon v. Livingston 290 

Gordon v. United States 226 

Gordon v. United States 370 

Governors of Bristol Poor v. Wait 529 

Gray v. Ayres 244 

Geeebway v. Hued 317 

Greer v. Downeg 262 

Gregory v. Brooks 290 

Gregory v. Mayor 31 

Grindley v. Barker 87 

Grindley v. Barker. ., 345 

Groenvelt v. Burwell... 211, 222, 466 

Geoenvblt v. Burwell 272 

Gross' License, In re. 80 

Gross' License, In re 529 

Grove v. Van Duyn 276 

Guden, In re 67, 183 

Gundling v. Chicago 85 

Guptail V. Teft 337 

Gwin v. Barton ,242 

Hagaj V. Reclamation Dist. No. 

108 117 

Hagar v. Beclamation Dist. No. 

108 520 

Hale v.Henkel 217 

HalloroM v. McC.uUough 285 

Ham V. Board of Police of Boston 175 
Hamilton Tractian Go. v. Parish. . 36 

Hammond v. Howell 272. 

Harbaugh v. Martin 92 

Harlow V. Pike 126 

Habman V, Tappenden . . , 293 

Harrington v. Board of Aldermen 

of Providence 144 

Harrington v. Glidden 572 

Harrington v. Glidden 529 

Harris, Ex parte 453 

Harrison v. People 67 

Harrison v. People ". 443, 463 

Hart V. Albany 243 

I-Iartman v. Wilmington 16 

Hartman v. Wilmington 144, 492 , 



XVI 



TABLE OF CASES. 



Page 

Hassel's Case 433 

Hathaway v. Hinton 307 

Haverty v. Bass 257 

Haices v. Brewer 448 

Hazard v. Israel 345 

Health Department of City of 

New York v. Rector, etc., of 

Trinity Church 145 

Health Department of City of 

'New Yorlo v. Rector, etc., of 

Trinity Church 529 

Heath v. Stale .' 113 

Heister v. Metropolitan Board of 

Health 137 

Hendriclcs v. Gonzales 334 

Henry v. Barton 70 

'Uerr v. Central Kcntuclcy Lunatic 

Asylum 395 

Hill V. Bigge 283 

Hill V. Boston 346 

Hilton V. Merritt 580 

Hines v. Charlotte 347 

Hoke V. Field 86 

Hopkins v. Smethwick Local 

Board of Health 256 

Hopson, Appeal of -. . . . 77, 525 

Horton v. Garrison 89 

Houghton v. Payne 667 

Hover V. Barkhoof 307 

Howard v. First Independent 

Church 36 

Howard v. United States 331 

Hubbell V. Goodrich 244 

Huhliell V. Goodrich 345 

Huey V. Richardson 306 

Huff mire v. Brooklyn 350 

Huling V. Ehrich, 130 

Huling v. Ehrich *421 

Hutton V. Camden 136, 212 

Hutton V. Camden 529 

Illinois State Board of Dental Ex- 
aminers V. People 72 

Illinois State Board of Dental Ex- 
aminers v: People 443, 463 

Indiana v. GoMn 307 

Inhabitants of Quincy v. Kennard 38 

Inhabitants of Rutland v. Worces- 
ter County Com'rs 504 

Interstate Commerce Commission 
V. Alabama Midland R. Co 597 

Interstate Commerce Com,mission 
V. Alabama Midland R. Co 529 

Interstate Commerce Commission 
V. Brimson 222 



Page 
Interstate Commerce Commission 
V. Cincinnati, N. O. & T. P. R. 
Co 20 

Interstate Commerce Commission 

. V. Cincinnati, etc., R. Co 529 

Interstate Commerce Commission 
V. Illinois Cent. R. Co 601 

Jackson v. People. 475 

Jacob (Tomllns) Law Dictionary, 

London, 1809, v. Discretion 61 

Janvrin, In re ^6 

JefCries v. Ankeny 294 

Jenkins v. Waldron 294 

John Giles' Case 433 

John Giles' Case 72 

Johnson v. Stedman 105 

Johnson v. Stedman 345 

Johnson v. Towsley. 644 

Johnston v. District of Columtia 350 
Jones V. Com'rs of Moore County 443 

Jones V. Williamshurg 347 

Joyce V. Chicago 190 

Joyce V. Chicago 492 

Kansas Home Ins. Co. v. Wilder. . 602 

Kavanagh, Ex parte 196 

Keenan v. Perry 177 

Keenan v. Southworth 344 

ICeiser v. Lines 77 

Kemp V. Neville 276 

Kendall v. Stokes 284 

Kendall v. United States 434, 454 

Kendall v. United States 6 

Kentucky & I. Bridge Co. t. Louis- 
ville & N. R. Co la 

Kentucky & I. Bridge Co. v. Louis- 
ville & N. R. Co 228 

Keerison v. Spakrow 396 

King V. Bishop of Litchfield 434 

King v. Bishop op London 197 

King V. Davenport 246 

King v. Davenport 345 

King v. Hayes 154 

King v. Venables 529 

King v. Wheeler 420 

King County Elevated R. Co., Mat- 
ter of 36 

Kinneen v. Wells 2S4 

Kuntz V. Sumption 125 

Kvrsheedt Mfg. Co., In re 576 

La Croix v. Commissioners of 
Fairfield County 500 



TABLE OF CASES. 



XVll 



Page 

La Croix v. County Commissioners 16 

Laidlaw v. Abraham 570 

I.unTjorn v. County Com'rs 363 

Landau V. yew York 354 

T^aiige V. Benedict 269 

Langenberg v. Decker 217 

Langenberg v. Decker 499 

I^angf ord v. United States 368 

Lantz V. Hightstown. 39, 487 

Lauterjung, Matter of 482 

Lawton v. Steele 262 

L'awton v. Steele 345 

Lcm, Moon Sing v. United States. . 616 

Levin v. Burlington 356 

Levy V. New York 346 

Licenses, In re 82 

LiUlienf eld v. Commonwealtb 198 

Lillienf eld's Case 185, 529 

IJncoln V. Hapgood 290 

Lincoln v. Smith 268 

Lincoln v. Worcester 359 

Lingo V. Burford 102 

Lingo V. Burford 421 

Little V. Barreme 332 

Little V. Barreme 552 

Little V. Denn 102 

Little V. Madison 354 

Livingston v. Jefferson 284 

Loesch V. Koehler 154 

Love V. Judge of Recorder's Court »4 

Lovell V. Seehack 257 

Lowe V. Conroy .*. 306 

Lowe V. Conroy 542 

Lowell V. ArcJiam^ault 421 

Lynde v. Winnebago Co 86 

McCord V. Higb 308 

McCormick v. Fitch 242 

McCoy V. airtice 89, 107 

McCoy V. Curtice 345 

McGregor v. Supervisors 92 

Mcllhenney v. Wilmington 35;6 

Mclean V. Jephson 556 

McLean v. Jephson 301, 529 

McLeod V. Scott '^0 

Mc'Nutt V. Livingston 345 

Magnetic School of Healing v. Mc- 

AnnuUy ■■■ ' ^^^ 

Maguire v. Smock 36 

Miigwire v. Tyler 517 

Martin v. Lemon 88 

Martin v. Mott 548 

Martin v. 'Mott 284, 345 

Martin v. State 161 

Martin v. State ''. 529 

Fr.Adm.Law — b 



Page 

Martin v. Symonds "i- 

Mason v. Fearson W 

Meeker v. Van Rensselaer 93 

Meeker v. Van Rensselaer. . . ■ 243, 345 
Metropolitan Board of Healtb v. 

Heister J37 

Metropolitan Board of Health v. 

Heister 421, 521 

Metropolitan Milk & Cream Co. v. 

New York 40 

Miles v. Worcester' 350 

Mill v. Hawker 339 

Miller v. Horton 535 

Miller v. Horton... 154, 251, 313, 345 

Miller v. Wade 'i'7 

Mills V. Brooklyn. 350 

Milwaukee Iron Co. v. Schuiel... 479 
Morf ord v. Board of Health of As- 

bury Park 30 

Mostyn v. Fabrigas 280 

Movers v. Smedley 396 

Muller v. Com'rs of Buncombe Co. 70 

Munk V. Frink 528 

Munn V. Corhin 213 

Murray v. Hoboken Land & Im- 
provement Co 235 

Musgrove v. Chun Teeong Toy.'. . . 284 

Myqatt V. Washburn 301 

Mygatt v. Washbubn 560 

Nealy v. Brovra 99 

Nealy v. Brown 529 

Nealy v. Brown 90 

NefC V. Paddock 243 

Naff v. Paddock. ; 345 

Nelson v'. State Board of Health. . 29 

New London v. Brainard 422 

Newman v. Supervisors of Living- 

'ston -County. 362 

New Orleans v. Bailrood Co 579 

Nichols v. United States 377 

Nichols V. Walker 561 

Nickerson v. Thompson.'. 290 

Nishimura Ekiu v. United States 611 
Nishimura Ekiu v. United States 499 
Noble v. Union River Logging ji. 

Co ••• 638 

Noble V. Union River Logging B. 

Co 422 

Noel v: People 84 

North American C«ld Storage Co. 

V. Chicago 256 

North American Cold Storage Co. 

V. Chicago .'. .154, 251, 421 



XVIU 



TABLE OF CASES, 



Page 

North German Lloyd S. S. Co. v. 

Heddeh 566 

TSorwaVc St. B. Co.'s Appeal 525 

Origet V. Hedden 208 

Oshkosh V. State 166 

Otis V. Bacon 334 

Palmer v. McHIahon 257 

Partridge v. General Council of 
Medical Education and Regis- 
tration of United Kingdom 285 

Pascal V. Sullivan 576 

Pasmore v. OswaldtUistle Vrian 

Council ' 448 

Patterson v. Miller 109 

Patterson v. Miller 113, 345 

Payne v. United States 667 

Peavey v. Roljinson 296 

Peck, In re 193 

Pehrson v. Ephraim City 185 

Pennsylvania R. Co. v. Montgom- 
ery County Pass. R. Co 86 

People V. Allegany County Sup'rs 503 

P(f3ple V. Barker '. 204, 483 

People V. Bell 204 

People V. Board of Assessors of 

City of Brooklyn 478 

People V. Board of Com'rs of Po- 
lice 500 

I'eople V. Board of Com'rs of Po- 
lice and Excise of City of 

Brooklyn 192 

People V. Board of County Can- 
vassers of Onondaga Covmty. . . 445 
People V. Board of LJucation of 

City of Quincy 495 

People V. Board of Health of City 

of Yonkers 139 

People V. Board of Health of City . 

. of Yonlcers 474, 492, 542 

People V. Board of Police of Met- 
ropolitan Police Dist. of State 

of New York 480 

People V. Board of Railroad 

Com'rs 474 

People V. Board of Sup'rs of 

Greene County 443 

People V. Board of Sup'rs of Mad- 
ison County 95 

People V. Board of Sup'rs of Mad- 
ison County 463 

People V. Brighton .' 468 

People V. Burt 474 

People V. Busit 474 



Paee 

People V. Busse 447 

People V. Butler Street Foundry 

Co 217 

People V. Collier 474 

People V. OoUins m 

People V. . Collins 463 

People V. Common Council of Syr- 
acuse 500 

People v. Dental Examiners .... 73 
People V. Department of Health. . 463 
People V. Department of Health of 

City of New York 167 

People V. Dunne 446 

People V. Fairchild 508 

People V. Fairchild 497 

People V. Feitner 204 

People V. French 215 

People V. French 215, 483 

People V. Glennon 215 

People V. Goodwin 479 

People V. Grant 70, 443 

People V. Healy . . .• 510 

People V. Healy 463, 497, 516 

People v. Hiogins 176 

People V. HilUard 70 

People V. Hopson 112 

People V. Hopson 529 

People V. Humphrey 185, 492 

People' V. Illinois State Board of 

Dental Examiners 62 

People V. Illinois State Board of 

Dental Examiners 463 

People V. Kelly 217 

People V. Lindblom 485 

People V. McCoy 165 

People V. McCoii 52JJ 

People V. McGlyn 200 

People V. Meyers 164 

People V. Morton 179 

People V. Morton 463 

People V. Murray 86 

People V. National Bank 242 

People V. New York, L. E. & TF. 

R. Co....... 9 

People V. Norton 284 

People V. O'Brien 217 

People 11. Olsen 502 

People V. Parker 488 

People V. Railroad Com'rs 474 

People V. Regents of University of 

Michigan 429 

People V. Rice : 445 

People V. Supervisors of Queens 
County 500 



TABLE OP CASES. 



XIX 



Page 

People V. Supervisors of 8t. Law- 
rence County 474 

People V. Supervisors & Town 
Clerk of Ohio Grove Tp., Mercer 

County 427 

People V. Syracuse 500 

People V. Waite 507 

People V. Waite 497 

People V. Welier 113 

People V. Whitcomb 497 

People V. Whitlock 178 

People V. Whitlock - 497 

People V. Willcocs 26 

People V. Williams 91 

People ex rel. Linton v. Brooklyn 

Heights R. Co , 10 

People's Nat. Bank v. Marye 421 

Perry v. Reynolds 296 

Persons, Ex parte 72 

Philadelphia v. Scott 529 

Pike County Com'rs v. People. . . . 428 
Pittsburgh, C, C. & St. L. R. Co. 

v. Backus 122 

Pittsburgh, C, C. £ St. L. R. Co. 

V. Backus 4iil 

Pittsburg, etc., Ry. v. Board of 
Public Works of West Virginia 417 

Piatt Bros. v. Waterbury 350 

Porter v. Purdy 806 

Post V. Totcnship Board of Spar- 
ta 443, 451 

Potts V. Breen 43 

Potts V. Breen 345, 463 

Powell V. Bullie 487 

Provident Saving Life AssJur. Soc. 

V. Cutting , 604 

Pruden v. Love 257 

Queen v. Auciibishop or Cantee- 

BUKT 174 

Queen v. Boioman 492 

Queen v. Justices of Walsall 196 

Queen v. Licensing Justices 198 

Queen v. Wood .'. 492 

Queen, The, v. Wood 534 

Raaf V. State Board of Medical 

Examiners 528 

Rail V. Potts.. 296 

Randall v. Brigham 276 

Raymond v. Fish 251, 313 

Regina v. Bartlett 198 

Regina v. Boteler 70 

Regina v. Bowman 33 



Page 
Reservoir Co. v. Mackenzie.... 31 
Rex'v. Archbishop of Canterbury 434 

Rex V. Askew 434 

Rex V. Glamorganshire 465 

Rex V. London 449 

Rex V. Rosewell 244 

Rex V. yejiables 164 

Rex V. Williams .■ 284 

Rex V. Young & Pitts 433 

Rexford v. State 372 

Reynolds v. Schultz 210 

Reynolds v. Schultz 422 

Richmond Co. v. Ellis 648 

Riggs v. Johnson Co 462 

Ripley v. Gelston 318 

Roberts v. United States 443 

Robertson v. Sichel 345 

Rockland v. Rockland Water Co. 579 

Rodman v. Barcourt 113 

Romero v. United States 114 

Rooke V. Withers 301, 561 

Rosentaum v. Bauer 462 

Rosenthal v. State Board of Can- 
vassers 445 

Rounds V. Mansfield 107 

Runkle V. United States 86 

St. Joseph V. Levin 217 

.Salem v. Eastern R. Co 251, 529 

Salem v. Railroad Co 538 

Sanbm-n, In re 226 

Sangamon County v. Brown 523 

Sarande Land & Timber Co. v. 

Roberts 396 

Savacool v. Boughton 340 

Sawyer, In re 390 

Sawyer, In re 499 

Sawyer v. Railroad 99 

Sawyer v. State Board of Health 517 
Schaezlein v. Cabaniss 56 

SCHLAU DECKER V. MARSHALL 79 

Schoemaker, In re 196 

Schwuchow V. Chicago 38 

Seaman v. Patten ; . . . 287 

Sha}-p V. Wakefield 70 

Shoup V. Shields 339 

Shumway v. Baker Co 579 

Shurtleft V. United States 183 

Silver v. Ladd 644 

Sims, Matter of 222 

Skinner v. Morgan 307 

Smith, In re 542 

South v.. Maryland 307 

Spalding v. Vilas 284, 290 



XX 



TABLE OF CASES. 



Page 

Sparrow, Eod parte 463 

Sparrow, In re 77 

Speed V. Common Council 500 

Spencer, Appeal of 526 

Spencer & Gardner y. People 577 

Spencer & Gardner v. People 529 

Spray^erry v. Atlanta 164 

Spring v. Hyde Parle 362 

Stanley v. Albany County Sup'rs 582 
Stanley v. Supervisors of Albany 

County 579 

State V. Board of Com'rs of Jef- 
ferson County 422 

State V. Board of Com'rs of Tippe- 
canoe County 517 

State V. Board of Health of As- 

l)ury Park 492 

State V. Board of Health of Hud- 
son County 66 

State V. Burdffc 51 

State v. Bui!Dgb ^. . 49 

State V. Burger 500 

State V. Carroll 112 

State V. Chittenden 453 

State V. Chittenden 215, 484 

State V. County Treasurer 500 

State V. Davis 217 

State V. Dierherger 113 

State V. District Court of First 

Judicial District 526 

State V. Doherty 177 

Stfite V. Ellcin •. 500 

State V. Evans 492 

State V. Fond du Lac. 468 

State V. Francis 447 

State v. Pkemont, E. & M. V. K. 

Co 23 

State V. Hanlon 62 

State V. Hawkins 175 

State V. Houser 530 

State V. Houser 899 

Slate V. Jennings 425 

State V. Johnson 9, 26, 399 

State V. Justices 463 

State V. Justices of Inferior Court 

of Morgan County 61 

State V. Kansas Cent. B. Co 529 

State V. Kellogg 185 

State V. Kupferie 497 

State V. La Payette Co 453 

State- V. Lamos 188 

State V. Lamos 102, 529 

State V. Lean 425 

State V. Lutsi 76 



Pagfe 

State V. Lyons 495 

State V. McGarry 177 

State V. Meyers 70 

State V. Neicarh 495 

State V. New Lindell Hotel Co 180 

State V. Bohart 87 

State V. Byan 222 

State V. Sadler 579 

State V. St. Louis 175 

State V. SchrofC 490 

State V. Schultz 166 

State V. Shehoygan 86 

State V. Smith 175 

State V. Stanton 397 

State V. Sullivan 188, 214 

State V. Sullivan 497 

State V. Tomah 185 

State V. Topeka 497 

State V. Wade 307 

State V. Welmer 101 

State V. Wcimer 529 

State V. Wilson 99 

State Board of Equalization v. 

People • 579 

State ex rel. Ives v. Kansas Cent. 

R. Co 

State Railroad Tax Cases. ^ 124 

State Bailroad Tax Cases 421 

Steinkraus v. Hurlbert 196 

Stephan v. Daniels 364 

Stetson V. Kempton 334 

Stetson V. Kempton 301 

Strickfaden v. Zippriok. 803 

Stuart V. Palmer...'..: 121 

Stutsman County v. Wallace 341 

Swift V. Poughkeepsie 362, 479 

J'aunton V. Taylor 156 

Taylor v. Louisville & N. R. Co... 583 
Taylor v. Louisville & N. B. Co.. . 422 

Teal V. Felton 326 

Toall V. Felton 328 

Tearney v. Smith 306 

Terry v. Huntington 561 

Thomas v. Alleghany County 428 

Thompson v. Farrer 345, 538 

Thompson v. Gihhs. 39 

Thompson v. Koch 523 

Thompson v. Koch 77 

Tindal v. Wesley , 395 

Tinkler v. Board of W07-ks for 

Wandsworth Dist 29 

Tomlinson v. Board of Equaliza- 
tion 202 



TABLE OF CASfiS. 



XXI 



Page 

Tomlinson v. State Board of 

Equalisation 4D2 

Tracy v. Swartwout 314 

7'raci/ V. Swart icout 334 

Tracy v. Williams 279 

Truer v. Stale Board of Medical 

Examiners 200 

Train v. Boston Disinfecting 

Co 159 

Trainor v. Board of Auditors.... 179 
Treasurer of City of Camden v. 

JIulford 466 

Trustees of Schools of Town 21 
N., Range 5 W. v. School Di- 
rectors of Union Dist 505 

Underwood v. Green 313, 542 

TJndekwood v. Green 143 

Vnion Pac. R. Co. v. Gheyenne... 419 

United States v. Bailey 217 

United States v. Beavers 221 

United States v. Black 64S 

United States v. Blade 443, 463 

United States t. Douglass 196, 

448, 403 

United States v. Duell 520 

United States v. Great Falls 

Mfg. Co 372 

United States v. Griswold 329 

United States v. Hitchcock (546 

United States v. Hitchcock ..443, 463 

United States v. Jones '. . . 382 

United States v. Jung Ah Lung.. 616 

United States v. Ju Toy 625 

United States v. Ju Toy 499 

United States v. Lee 387 

X.nited States v. Lynch 376 

United States v. Minor 632 

United States v. Pearson ....... 402 

United States v. Ritchie 13 

United States v. Schurz 458, 644 

United States v. Sing Tuck 622 

United States v. Sing Tuck 499 

United States v. Theockmok- 

TON 635 

United States Fidelity & Guar- 
anty Co. y. Llnehan 607 



Page 

Van Cleef v. Chicago 354 

Vanderheyden v. Young 552 

Van Nortwiek v. Bennett 35 

Van Nortvnck v. Bennett 492 

Vestry of St. John's v. Button 134 

Vitium V. People 576 

Warne v. Varley 531 

Warne v. Varley 345 

Watklns, Ex parte 498 

Waye v. Thojupson 132 

Waye v. Thompson 529 

We1>er v. Baird 422, 576 

Weil V. Rieord . . . . ; 137 

W'eimer v. Buniury 242 

Welleb v. Snoveb 266 

Wetmore v. Tracy 243, 246 

Wheeler v. Patterson 296 

Whidden v. Oheever 313 

Whifbeclo v. Hudson 419, 468 

Whitchtjecii, Ex Parte 27 

White V. Berry 408 

White v. Redfern 133 

Whitely v. Platte County 93 

Whitcly V. Platte County 529 

Whitfield V. Lord Le Despencer. . . 341 
Whitney v. Board of Delegates. . . 480 

Wilcox V. Hemming 258 • 

Wilcox V. Hemming 345 

Wilcox V. MoConnel 86 

Wilcox V. People 176 

Wilcox V. People 497 

Williams v. Errant 66 

Williams v. School District 89 

AViLLY V. MULLEDY 55 

Wilson V. Alahama Great South- 
ern. R. Co 89, 90 

Wilson V. Eureka City 82 

Wilson V. Eureka City 529 

Wisconsin Tel. Co. v. Milwaukee 36 

Wise V. Withers 284, 552 

Wood V. Parnell 345 

Warden v. Witt 307 

Yamataya v. Fisher 616 

Yates V. Lansing 276 

Yeager, Ex parte 443 

Young, Ex parte 396 



CASES ON 
ADMINISTRATIVE LAW 



INTRODUCTION 



The subject of administrative law covers a number of topics, which 
in treatises and digests are generally divided between the law of public 
officers and the law of extraordinary legal remedies, but which will 
also be found treated iiycidentally under such various heads as munici- 
pal corporations, taxation, highways, elections, intoxicating liquors, 
nuisances, public health, public lands, etc. 
^ The common element, which g iypp tVip gnhjpri- ifc nm'ty I'g tViP f-^fpr- 
cise of admi nistrative power affecting private rights, and the term "ad- 
jimistrati ve law- n as m relatively recent times g-ained""arrep1-ance as 
the best designation for the system of legal principles which settle the 
contlicting claims of executive or administrative a ntVinrity on the one 
side, and ot individual or pri vate right on the other. ^ 

ihe more general bearings ot 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. 13 ; E. M. Parker, 19 Harvard Law Review, p. 335 ; A. L. 
Lowell, Government of England, vol. 2, c. 53, 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.^ 

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. T., 1905 ; B. Wyman, Administrative" Law, St Paul, 190S. 

2 The regular civil and criminal courts, however, likewise take cognizance 
of many causes of action involving the validity of administrative acts, so 
wherever prosecutions are instituted for penalties, where suits for damages' 
are brought against public officers, and where the government seeks to con- 
demn private property for public use. 

Fe.Adm.Law. — 1 



-I INTKODUCTION. 

This system of administrative jurisdictions subsequently spread t6 
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 niany 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 vfhere 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 
«'ied, 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 63-64 of this 
collection. 

Moreover, even in those states in which in ordinary civil contro- 
versies xn& forms of action have been, reduced to one, there survives, as 
a needless legal archaism, the distinctiveness of the different extraoT- 



INTEODCCTION. 3 

dinary legal remedies, with provinces in part mutually exclusive, and 
in part concurrent, dififering 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 
involves in the first instance the question through which of the various 
forms of remedies relief must be sought. 

There is no state in which the law grants, in general terms, a right 
to appeal to the courts from every administrative decision affecting 
individual rights, and alleged to involve either a misconstruction of 
law, or an erroneous finding of facts, or an abuse of discretion. Nor 
is such an appeal, as a rule, given by statutes creating new 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 commoh- 
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 o'f 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.) 

Wii,SON, C. J.i * * * The general government differs from 
ours in its powers and attributes ; and although we have adopted the 
common law of England, we hav^ 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 has not divested himself, by e3?press 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 5 

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. Tt confers 
no specific power . What would have been its operation, if the Con- 
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 bv the Supreme 
Court of the United States that an enumeration of the- pnwprg nf a 
- depar tment 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." "Thi^ 
power of general supervision." s ni r'i t i " T ^ bV ''""?m""tfit'''r "n A"^"n' ^;i" 
law, "is a duty enjoined on the federal and state executives." 
would be dangerous, however^ to f^-'t t^i" '-^niigp gg ^' ^nferring- anv 
specific power which they would not otherwise pnsqpss. Tt is tn he re- 
garded as a comprehensive description of the duty of the executive to 
watch with vi gilance over all thg public interests." Walker's Amer- 
lean i^aw. wii. 'I'he Governor is not to execute the laws himself, but 

is to see them executed . Tjiig Hnty ig perfnrmerl hy lenHing- tVip air] 
_ and power of the exec uHve arm t n 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 exerntive is tn see the laws executed, not as he 
mav e -^pn'i^rl tViepi^ hut a.^ thev mav be expounded ^by those tn whom 

tViat rl .ify I'c I'nti-ncterl Tn fhe J ,e fr\<:^oH1rt' ia rjeleo-gterl tVi^ anfVinrity 

tn rn'^ke the laws, to the courts the authority to expou nd them^T^nd tn 

■ the executive the authoritv to see fi^"^ Pvp^ntpd, p-s they are thus 
■interpreted. . His interpre ta tion is proper only wh pn sperially re- 
quired bv law T or where the ordinary mean5 ? are inadeqnite tn tVie nh- 

■ ject of t hfir degigri But to assume the power of expounding, and 
_ also that of e.xer.ut ingr the law, wnnlH he a iicnrp^t jon of the functions 

_of the jndiciarv, anri .f-nnrentratingr^ in one department, pnwf^ff; ev- 
pressly declared, hy t]^e Cnirititiitinn, tn hf^lnng tn two separate and 
^. -fiistmct gepartments. _ * * * ^ 

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- 



ADMINISTRATIVE POWER AND ACTION. (Part 1 



SECTION 3.— 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 d.uties 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. 1338. 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 employes 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 law« 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. C5S, 34 L. Ed. 55 
(1890). 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 7 

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 con tptiH^^H np/^n tVi^ p-.rt nf tVif- 
state that the finding of the railroad commissio n prg "f ^^^ ''•'^^^ •^^y "^ " 
May, 1891, that the Kansas Central Railroad "is in an unsafe and 
dangerous condition for the transportation of persons and property 
^ by reason ot the insufficient condition and weight of the iron rails in 

the tracks thereof." is fi nal anH rnnrlngnrp iipnn thp dpfendants and 

this court. Further, that the order of the commi'i'iinnprs; , rpr|nirincr the 
Kansas Central Railroad tn he rplaiH with new rails of standard patr 

tfrP i ^"r^ "^ ""*• ^"'''' "'"'2:ht thvin fjfi ponnrk to the li n pal y^rH , i"g g1<^n 

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 tne staTiire, i s 
aavisory only. II LliL finding ' of Ihi: mamiiiitJ iune rs and their order 
is final and conclusive, this Court has n o power to hear or determine 
~any issue ot tac t, except li poiX the allegation that the defendants have 
retused to comply with ttie 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 -pi-oper 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. 134, Sess. Laws 1883 (paragraph 1338, 
Gen St. 1889). The Legislature has not conferred upon the com- 
missioners by said statute the power claimed. There is nothing in the 
statute w ^ii^h states, .^r ran be construed to sta te, that the orders 
r>t the f-nmmissinnprs rfv n£^"''^f repairs upon a railroad shall be 
final or conclusive.. or^TanHH~rDtutb iiiubl carry out their deter- 
minations or judgments. U pon 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

pairs upon a railroad are demanded for the security, convenience, and 
accommodation of the pubHc, 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 an^ nrH^r ni fhe- rrirnmig'^inriprg, un der' 

the statu te, are advisory only — nothing more. The order cannot be 
enfnrc pH hy tiip "^rnmi"'-''''""'-'' ; it Trinn ot be enforced bv the Gover- 
nor: and it cannot be enforced specifically bv this or anv 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: 

"Th^ rnrnmisd joners. Up rlpr f|iig fprtinn | Ttjvp nn pnwpr tr» pnfp rrp an 

order . They can f^ifTb' ?''^''"'"^ ^^'^ n<-.mpiny in foult nf t1i<^ r'hr,x]^pa 
desired or deemed necessary. To have invested the commission 
with the power to enforce its own orders, it would have been nec- 
essary to have changed 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. >T1ip supervi^nry pnwprg q i the commis- 
sion wou ld in such case extend onlv to such rnattprs as sh""^^ ^ 
~_ tormauy Drougnt before it bv complaint , and no such complaint would 
be made until some one had 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 9 

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. 'T^h° nntj nnal inter '^tfl^'P rcmmpyce art 

^of Februarv 4, 1887. differs v ^'lHy ^''"^r" ^-^^ ^^<- '^f i««^ 7Tf-r.,ir I .pgis-" 
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^ anH aUn fnr pt^p- 
ishmg in such courts railroad comp anies for violating or neglecting 
to obey any lawful order or requirement ot th e natiOlul c!ulluaf55in H». 

■"Volume 1, Interstate Commerce Commission Keports, 665-671. * * *^ 

5 See State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. E. A. 662 (1900) 
declaring the act establishing a court of visitation for the regulation of rail- 
roads unconstitutional, as commingling judicial and legislative powers. 

See People v. New York, Lake Erie & Western Railroad ComDfiiiv. 104 N. 
■Y. 58, 9 N. E. 856, 58 Am. Rep. 484 (1887): "In 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 4-ailrcfad 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 deci4ed. 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 eifect 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 lawjails, not only by its Incompleteness and omis- 
sion to furnish a remedy, but by Its express provision that no 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 corporatiop. 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 com- 
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 ADMINISTEATIVE POWER AND ACTION. (Part 1 



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 ^n 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 appeair 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 anx* charse 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. /* shall lie the duty of the corporation, person or persons own- 
ing or operating the railroad to comply with such decisions and recommen- 
dations of the hoard 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 rel. Linton v. Brooklyn Heights B. Co., 172 N. Y. 90, 64 N. 
B. 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 op the Interst.a.te Commeece Commission fob 

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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 11 

was brought' If this be true it must, of necessity, be decisive of the 
motion. 

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- 
making 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 $350, 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 dispositien, 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 
relief, 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 dislJosed 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 afCecting 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 ADMINISTEATIVB POWER AND ACTION. (Part 1 

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 understcfod by the words "cdurt" 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 
tw6 parties to a controversy must exist ; there must be a wrong done 
oi- 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 theni. They cannot, in cases like the one under considerfition, 
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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 13 

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. 

(Circuit Court of United States, District of Kentucky, 1889. 3T Fed. 567, 2 

L. R. A. 289.) 

Jackson, Circuit Judge.' * * * j^ support of their position 
that judicial powers are conferred upon and exercised by the commis- 
sion, counsel refer to various provisions contained in sections 13, 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. 3163-3168)], which, together with 
the rules of practice adopted, shfew, 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 subpoena 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- 

1 "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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 conforms 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. 
B ut does th e i nterstate commerce law undertake either to create an 
inferior court" or to invest the commission appointed thereunder witn 
judicial Junctions.'' We thmk not.. While the commission possesses 
and exercises certain powers and functions resembling those conferred 
upon and ej^ercised 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 inv estigation, and which the act desig- 
nates as the "recommendation," " report," "o rder," or "requirement" of 
the board is neither final nor conclusive ; nor is the commission in- 
vested witn any authority to entorce its decision or award. Without 
reviewing' in deLail the piuviriiuns oi the law, we are clearly of the 
opinion that the commission is invested with onlv administrativ e 
_BOwers of supervision q n^ imrPct;<Tat;r.n^ which fall far shor t of 
making the board a court. Or i ts action judiciSl, in iht proper sense 
mmmission hears, investi gates, and reports upon . , 
pre it. involving alleged violations of or omission 




set; but subsequent judicial proceedings are con-. 
templat^l^^^^^ided for, as the remedy for the enforcement, either 
bv itself uiT.Be Drill V liilt- iHmHil nf its nrdpr nr rppn rt in all r.ases where 
the party complained of or against whom its decision is rendered 
does not vield vo luntary nbedienre thpretn^ By the 'fourteenth and 
sixteenth sections of the act it is provided that the report nr findings ^ 

m ade bv the commission " shoillrl tbprpaftpr in all jnHirial prnrpprl- 

ings. be r\fprr:er\ prjr"^ fp'^'p p^i dence 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 15 

enforcement of its recommenda,tion or order. The functions of the 

, commission are those of referees nr spprial rnmmi<;';innpr.'^, i pppnintpH 

to maVp prpliminarY imrpctifr-iti'nn >^f inr) re port upon matters for sub- 
sequent j ndirinl e^nmi m tio" ^rd y io termination. I n respect to inter- 
state commerce matters covered by the law, the commission may be re- 
garded as the general referee of each and every Ci rcuit Court of the 
Unified States, i^pnn whir h the j uri sdiction is conterred ot enforcing 
the rights, duties , and obligations recog-nized 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 eiiScacy 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- 
merce 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 made 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 " 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 th e provisions of the act, an original and independent 
proceedmg, m whi ch the commission's report is made prima facie 
t .vitlLnLLT) f the m atters or facts therem 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, up0n proper pleadings and proofs, the latter including not only 

9 Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 (1T92) ; D. S. v. Ferreira, 13 How. 
40, 14 L. Ed. 42 (1851). 



16 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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.^" 



HARTMAN v. MAYOR, ETC., OF CITY OF WILMINGTON. 
(Superior Court of Delaware, 1894. 1 Marv. 215, 41 Atl. 74.) 

.Certiorari by Maria C , Hartman ag^ajp^ t the Mayor and Counc il 
of City of Wilmington to review proceedings of a municipal board Q f 
health. E xceptions dismissed. 

The plaintiff was the owner of a dwelling house in the city of 
Wilmington, against which proceedings were talien 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 betvs'een (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 .ippoint 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 a 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 'our 
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.' " 

See La Croix s. County Commissioners, 50 Conn. 321, 324, 325, 47 Am. Rep. 

, 648 (1882). 

I. 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 17 

nances bearing upon the subject ate 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 v^hich 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 — theiy 
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 iperson — on one 
side of the matter. When the matter is determined by them, it is not 
a judgrn ent. They simply determine that a certain matter is a nui- 
sance. Then, when it is so determined, it is their duty to notify the i 
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. '' _, 

Whf-n i> I'g Hptpr mine.d bv the board of hea lth, ac ting under the 

police power vested in t h pm by t^'^ T nmr.ntiirn nr thP rr.-.ri^rpigrn ppy rPT^ 

of the^tate, that a certain thing is a nui sance, it becomes their duty 

tor the 'first time to notify the party ot the tact that a nuisance exists 

on his vi ^ re; that is , notic e is given tn bim nf that fart. It is nothing ( 

more or less, in our judgment, than that "a nuisance exists on yoUr 

place, and we require vou to remove it in so many days." T he party's 

rights have not been invaded. It has been a mere matter of inves ti- 

"gafion T And then he may, if he see ht, have his day in court. He 

~has an impartial, full, and complete remedy. For the fir'^t tirp*^ ^hp 

case enters into trial when . both parties are represented. He may 

Fr.Adm.Law. — 2 ~~ 



18 ADMINISTRATIVE POWER AND ACTION. , (Part 1 



■• 



appeal to the chancellor for an injunction to stay the actior , anH rom- 

mence an action whereby his rights may be determined hv procee d- 

^ in gs in chancet x If he sees fit to allow the matter to gfo on. and if 

the bo ard of health haye violated the pnwprg vpgtpri in them in re- 

^ movmg;' the matter, then they hfc^TTip pp rgnnally HaKIp . 

Were it otherwise, what would become of the community, and what 
would police regulations amount to? Parties must act in an emer- 
gency. _ If th e board of health act in an emergency, still thereistime 
left forlhe o"pp gii;ile paiLv, if he wihlieb, Lo c onteat their action. yXheir 
action i s not a legal judgment, such as is mntemplatpH nnHpr thp law, 
to which a certiorari at common law may issu e. // 

We think , therefore, under the circumsta nces, tha t 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.^^ * * * 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 19 

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 compHance 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 witfi 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, wher| we have been convince d that rates 
are unjust, it will be our duty to sav what they nnght tn he. or pt 
least to determin e upon some rate, any charge in excess of which 
would be unreasonabl e. If the duty of the Comm ission in respect to 
unjust and unlawful rates ends when it has been convmced that rates 



20 ADMINISTRATIVE POWER AND ACTION. , (Part 1 

are unrea snnaMp, and sn rlpf; ided them to be. and for any reason the 
Commission may not deten-ninp what are, as well gg wVipt arp nnt, 
reasona ble, the regulation provided by the statute begins with com- 
plaint and ends m confusion. 

'i' he act to ' regulate com merc e, which declares every unjust and 
unreasonable char gp tn hp imlawtn l , and requires its proY'"^'^" ^" ^P 
enforced by the Commission, confers the power to determine, and im- 
poses on the CommissioiiUhe duty of determining, what are the rea- 
sonable rates which the charge s may not exceed, as well as what are 
"^mreasonable. * * * ~ ' v© " 



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 

li. Ed. 243.) 

Mr. Justice Brewer delivered the opinion of the court.^^ * * * 
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. 463, 703, 33 L. Ed. 970 ; Reagan 
V. Trust Co., 154 U. S. 363, 397, 14 Sup. Ct. 1047, 38 L,. Ed. 1014 ; 
Railway Co. v. Gill, 156 U. S. 649, 663, 15 Sup. Ct. 484, 39 L. Ed. 
567; Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce' Com- 
mission, 163 U. S. 184, 196, 16 Sup. Ct. 700, 40 L. Ed. 935 ; Texas 
& P. Ry. Co. V. Same, 163 U. S. 197, 216, 16 Sup. Ct. 666, 40 h. 
Ed. 940 ; Munn v. Illinois, 94 U. S. 113, 144, 24 L. Ed. 77 ; Peik v. 
Railjway Co., 94 U. S. 164, 178, 34 L. Ed. 97; Express Cases, 117 U. 
S. 1, 39, 6 Sup. Ct. 543, 628, 39 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 maximum 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 tlie opinion is printed. 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 21 

In the first section it is provided that " all char^ef, * * * ghall 
be reasonable and just: and every n niust and unreasonable charge 
for such service is prohibited and derlared 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 13, as amended March 2, 1889 (25 
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 au- 
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 mandamus to compel the enforcement of such de- 
termination. In other words, that though Congress has not, in terms, 
given the commission 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 
nothjngLjlse in the act than the first section, commanding 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 3, § 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 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 itjias 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 ADMINISTEATIVE POWER AND ACTION. (Part 1 

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- 
ment 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 
matter. 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 23 

nei" 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 Commissioner 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. * * * Jt 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 tha,t 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 339, 22 Neb., and page 125, 35 



24 ADMINISTEATIVE POWER AND ACTION. (Part 1 

N. W.): "In the case under consideration the board found that the 
rates and changes 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, 163 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 have 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 25 

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 Cnnp- res.' ? has not conferred » pnn fhe 
com mission the legisl'ative power of prescribing rates, either maximum 
or mmimum or absolute.. As it did not give the express power to the 
commission, it did not intend to secure the same result inrlir prtly Viy p^i- 
powering that tribunal to determine what in referenre to the past was 
reasonable and iust. whether as maximum, minimum, or absolute, and 
then enable it to obtain from the courts a peremptory order th ?t in tiip" 
future the railroad companies should follow the rates thus determined 
to have been m the past reasonable find just^ 

The question certified must be answered in the negative, and it. is so 
ordered. ^^ 

Mr. Justice Harlan dissented. 

13 Section 15 of the interstate commerce act of 1887 (Act Feb. 4, 1887, 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 common car- 



26 ADMINISTRATIVE POWER AND ACTION. (Part 1 



ECKHARDT v. CITY OF BUFFALO. 

(Supreme Court of New York, Appellkte Division, Fourth Department, 1897. 
19 App. Div. 1, 46 N. Y. Supp. 204.) 

Green, J.^* 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 s hall have power 
to abate the same in suc h manner as hp mav dp ptn pyppHipnt^ gnrl the 

[expense may be aS.SeSS e r] rp^'-' <■!-... Im-i^lo upr^n r.r ^r^ frr^nt r>f ■Hfhir ll 

, such nuisances were, or npnn thp p-j^^oio ^f ^'ir^A |^onpfH-pd h y the abate- 
ment of the nuis ance ^ as thp rnmmnn rnnnril shall flirert." L,awS 

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 
made to appear to the commission 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 nct.-to i^lr-f^rminp and nreacrihe wha t will be the just and 
reasonable rate or rates, ch fircf "r "hnvg"', tn v^ thp)-pp]f|^ eT phserved in sucE " 

, case as the maximum t o he- rharp-pd ; and whnt regulation or practice In 

~ respect to such transportation is just, fair, and reasonable to be thereafter 
followed; and to make an order th at the carrier shall cease and desi st from 
such violation, to the eJi.lent Lo which the uomiiiliJ3l6n fand tne same 10 eji.lstr 
and shall not thereafter publish, demand or collect any rate or charge for 
snfh transportation m excess ot the maximum rate or cnarge so prescribed, 
.and shall conform to the regulation or practice so prescn hpd. . All oraers ot 
I 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. K. 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 ai3 omitted. 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 27 

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- 
ments 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 has 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 
pui-poses of his building there. * * * 

Defendant relies upon the cases of Ex parte Saunders, 11 Q. B. Div. 
191 ; Reg. v. LleweUyn, 13 Q. B. Div. 681 ; Reg. v. Wheatley, 16 Q. 
B. Div. 34; St. Luke's Vestry v. Lewis, 1 Best & S. 865 ; Ha!rgreaves 
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, the 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 noncomphance 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 * * * 



7 28 ADMINISTEATIVB POWER AND ACTION. (Part 1 

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 deem 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 common law, and it was therefore deemed 
necessary or expedient to create and confer them by act of parliament. 
A mer£.general power to ab ate niii.tianrpR in .surh manner as the sani- 

■ 'tary boards should deem expedient would hardly accomplish the pur- 
poses desired, or' attain the beneficent obiec t*? within ihe mnt emplation 
of the Parliarnent. J NIothing should be left to im plicatinn, but ample 
powers of regulation ana girection shoulH he^cnp fprrpH in pYprpRs 
terms. pTie assumption or, usurpation of power by the local authorities 
upon grounds ot supposed expediencv or neces.-^ity of the case ought 
not to be s ancti oned, but the power should be expresstv conferred. The 
right ot 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, 
mayhap 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 heard. 

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 unwarrantable 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. T he sanit ary mmmi.ggjp ner has powe r 

_ to do no more than to require the abatem ent- of the nui sance -com= 
^plained of; and, it mav be. he rpay prescribe the particular mnHf 
^ ^ 'abating it, it that be the most effe' '*"iif)^ ™^y "f d^ing it.- SuL- 

, _he possesses no' absolute power in that regard. Nor does it follow 
that h e may direct important alterations a nd permanent improvements 

_ upon the prertlUjes, at tt large expe nse to tne owner^ not demanded bv 

7 the actual ne c essities ot the cas e^ There are no words in the charter 
to justify the conten tion that the owner of the prem ises may be re- 
quired., in addition to abating the causfe ehdangenng the public health 
anf^ <iafp^-y tn malfp pyppnsrvp imprnvpmpntg iipnn Viig prnpprty t " s'lif 
Th" fr i n^y '^^ t'^° r^ffl^i-il H'is f1ntYJ»fag, nn f fp .-.rrln^- fh" Il'i l l i i f ' l i iirt — • 



A 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 29 

^f an entirely new privy, wi th ill itn rn iii n i (i iii i] i iTi r '^'-nnV'^, tm 

^ limply to see to the amenHm f nl- nf th° nnv ftTtint i nc 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. 

42hf ; charter speaks onl y r,i phatpmpnt nf nm'ggnf-pg and the ex- 
pense authorized re lates to the work and labor necessary for the ac- 
complish ment nf the piirpnsp nf remnvingr nr gnpprPgging i-h^rrf^ f|nr^_ 
not to th e rnngtrnrti'nn nf snmething 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 plaintilf's premises. For this we find no 
authority in the charter. * * * is 

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 worli 
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 ijrivate 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 voig, and that the 
defendants had not the power to enter upon the premises for the purpose of 
giving efEect to this part of the order." Turner, L. J., in Tinkler v. 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 (1904). 



30 ADMINISTRATIVE POWER AND ACTION, (Part 1 

MORFORD et al. v. BOARD OF HEA'LTH 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.^° 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, mule 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 groimd, beneath every stall, 
in every such building, and for a distance of at least four feet in the 
rear of every such 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-quar1;er 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 such 
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. * * * 

16 Only a portion of the opinion Is printed. 



I 

Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 31 

Any person or pei'sons 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_oi- health are g i ven power to adopt ordinances ; t o-CQmp£l, pre - 
scribe, regulate. anH rnntrnl fhp plnmhi'ng^ vf^ntilatinn^ 3pr1 Hrainage 
of all buildings, public and private, anrl the connection thereof with 
^niitsirie sewers, cpcispnnlt;^ or other receptacles, etc. : and to secure th e . 
sanitarv condition of all buildings, public and private. Again, by tne ' 
act of March 29, 18,92 (2 Gen. St. p. 1644), power is givea to regulate 
the keeping of all kinds of animals, and to regulate and control the 
accumulating of offal, and to secure the sanitarv condition of all 
""public buildings, and to protect the public water supply, and to prohibi t ~ 
an d remove any offensive matter or abate anv nuisance in any place, 
public or private.. The act of 1888 also r equires plans for the plumbing. 
ventilation, and drainage of buildi ngs to be submitted to the board of 
health for inspect ion and approvaT While the courts fully recognize 
rhe import ance ot 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 anv individual to such inter- 
ruptions and regulations as m ay be reasonably necessary to enabl e 
them to abate any nuisance he may create in rnndnrting- it7 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. Ift 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 exei-cise 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 
material, 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. 



^a 



32 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 ah 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 asi 
a protection to those who conform to it. If the owner secures the 
sanitary condition bf 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 has not conformed to the ^lan 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.^' 

IT Compare Durgln v. Minot, 203 Mass. 26, 89 N. B. 144, 24 L. H. A- (N S ) 
241 (1909). *^ 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 33 



SECTION 5.— SAME— CONDITIONS ANNEXED TO GRANT 

OE LICENSE 



REG. V. BOWMAN et al., Justices. 
(High Court of Justice, Queen's Bench Division. [1898] 1 Q. B. 663.) 

Rules to justices for the borougli 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 39, when Henry YooU and 
John George Patton, being inhabitants and ratepayers of the said bor- 
qugh, attended the licensing sessions and opposed the application. At 
a further adjourned session held on November 3 th e chairman of 
the licer si"° f ^"trimit t^ f thl-l IIl iI I I i -^ j ii '- i li" ' s l i jil '1" " i ' l i'r l tn crnnt 
the license on conditi on of the three existing licenses being surrendered 
"and of a sum of tl,^)()(). being paid by Duncan to the justices. The 
conditions having been performed, the license was gran ted, and "the 
"grant Was Sub seq,uently confirmed. . Messrs. Yooll and Jr'atton there- 
upon obtamed 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 il,000. so paid by Duncan in reduction of the rates of the 
borough, or for some other similar public purpose. 

Wills, J.^^ 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 

»» Parts of the opinions are omitted. 
Fb.Adm.Law. — 3 



34 ADMINISTKATIVE POWEE AND ACTION. (Part 1 

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 iljOOO. for some public purpose. i 

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 lic^ensed 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.'^® They 
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 nj) 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. * * * 

1 9 The power was given by Licensing Act 1904, § 4. 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 35 



^10. 



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, pi. 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 hcense was to be used, and the following clause was 
inserted in the affidavit thereto: " This application is mad e with the 
express understan ding that no open bar is to be maintamedr anrt tnaT 
ine purpose oi this license is to serve guests at table with meals." 

i'ne 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 c ondition 
that no open bar w as to be maintained, and that the purpose oi the li^" 
cense was to serve gue sts at tablewith meals." 

The act ot iSVis! 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. T he license granted is not authorized by the 
act of 1872, or by any other statute,. and \yas not recommended bv ten 

"jreeholders. ' T he commo n pleas, i\\pre-inrp ^ had nn jnrisHirtinn or 

authority to grant such a license. _ A constituent essential to the juris- 
d iction ot the court was absent, and that makes its action subject to re- 
view in this court, ^ ndpr the case of Duffnrrl v. Nnlan 4fi N. J. T,aw, 37. 
'i'he 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 Legisla ture alone prescribes the conditions" 
and terms, and the common pleas is w ithout pf>wer to de part from 
these provis ions, and to sav that, although the license provided bv law 
6ught not to be granted, it will issue some other license not authorized 



36 ADMINISTRATIVE POWER AND ACTION. (Part 1 

by the act . The action of the cour j has no bas is in legisla tion , and is 
therefore invalid. 

'itiQ license certified is vacated and set aside.*' r 

SECTION 6.— SAME— LICENSING POWER AND POWER TO 
REVOKE IvICENSES 



CITY OF LOWELE v. ARCHAMBAUET. 
(Supreme Judicial Court of Massachusetts, 1905. 189 Mass. 70, 75 N. B. 65.) 

Appeal from Superior Court, Middlesex County. 

Bill in equity by the City of Eowell against one Archambault. From 
a decree for plaintiff, defendant appeals. Reversed. 

Braley, J. This is a b'ill in equity, brought under Re v. Laws, c. 
102, § 71, to e njoin the defendant from occupying and using a stab le, 
in violation of the provisions of section fi9 pf the same rhapter. In the 
superior court the case was submitted on agreed facts, and after a 
decree had been e ntered in favor of the plaintiff , it comes before us on 

' tne gelenHant's ap peal 

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. Wabash, etc., Co., 182 111. 382, 55 N. E. 524 (1899), 
consent with a time limit held valid. As to the validity of consents given 
for a consideration, see Maguirev. Smock, 42 Ind. 1, 13 Am. Rep. 353 (1873); 
Howard v. First Indep. Church, 18 Md. 451 (1862>; Doane v. Chicago City 
R., Co., 160 111. 22, 45 N. E. 507, 35 L. R. A. 588 (1895); Hamilton Traction 
Co. v. Parish, 67 Ohio St. 181, 65 N. E. 1011, 60 U R. A. 531 (1902). 

See Francis 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 oflBce, 
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 
apjiurtenances in the public streets, see Byrne v. Chicago General R. Co., 1©9 
111. 75, 83-85, 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. (3o., 105 N. Y. 97, 114, 13 N. E. 18 (1887) qusere; State ex rel. 
V. Caty of Sheboygan, 111 Wis. 23, 86 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 37 

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 beg un, but before its completion , 
the board of health, acting on the petition ot residents m 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 n ever has been legally annulled . I f the revocation was in - 
valid, S UCn use was not in vinlati pn nf tliP ctatntnry prnviginn nn 
which ihe plaintiff relies, and the bill cannot be maintained. The li- 
cense granted under t he police power of the commonwealth, as ad- 
uiiiiiljLfcrfed through the age ncy of the board of health, did not rnn- _ 
sritute a contract between him and the city, or confer upon him any 
veste d right ot propertv. Neither did its abrogation , if law fnl, Hp- 
prive him of any immunity or privilege conf erred upon him bv our 
L:onstitution . Caider v. KurDy, & ijray, bVi ; JNlewton v. Joyce, 166 
Mass. 83, 44 N. E. 116, 55 Am. St. Rep. 385 ; Young v. Blaisdell, 138 
Mass. 344. 

Tb £_gtatutes of 1895 (page 219, c. 213), now Rev. Laws, c. 102, 
§§ 69, 71, undfer the authority of which the board acted and the li- 
cense was issued, contained no p rovisio ns for its recall when onc e 
granted . It evidently was the purpose ot 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 boaVds of. health of cities a general 
authority similar to that conferred by Pub. St. 1882, c. 80, § 10," 

21 This section provides tliat boards of Iiealtli may exercise all the powers 
vested in, and shall perform all the duties prescribed to, city councils or 
mayors ahd aldermen as boards of health under the statutes and ordinances 
in force in their respective cities on May 17, 1877. 



38 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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. Blaisdeil, ubi supra ; Grand Rap- 
ids V. Brandy, 105 Mich. 670, 677, 678, 64 N. W. 39, 32 L. R. A. 
116, 55 Am. St. Rep. 473." 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, §§ 15, 47, 89; chapter 103, §§ 9, 
28, 39, 33, 58, 73? 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, 68 111. 444 ; Lantz v. Hightstown, 46 N. J. Law, 102, 107 ; 
GrSnd R.apids v. Braudy, ubi supra. 

Independently of this statute, while the board of health, under Pub. 
St. 1882, c. 80, §§ 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- 

2 2 Schwuchow V. Olty of Chicago, 68 111, 444, 449 (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, 04 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) EXECUTIVB, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 39 

lating such use except as authorized. Commonwealth v. Stodder, 2 
Cush. 562, 48 Am. Dec. 679 ; Cambridge v. Munroe, 136 Mass. 496, 
502; Commonwealth v. Plaisted, 148 Mass. 375, 383, 19 N. E. 224, 
2 L. R. A. 142, 13 Am. St. Rep. 566. It is the Legislature, alone that 
primarily can impose, or give authority to impose, conditions and 
exact forfeitures (L,antz 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 statutp clothing it with this power (Abbott v. Frost, 185 
Mass. 398, 400, 70 N. E. 478). 

^ licensee should not be subjected to the nncprl-aintips that con- 
stantly would arise if unauthorized liniitations. of which he can have 
no knowledge, are subsequentlv and w ithnnt nnticp tn he rearl intnj 
his li( ; -.pp!^e at the _p ]p as ure -o£J:he li f priRirc ^n?'''^ . 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. Tt .stated that per mission wa s given to keep eight 
horses, and purported to and did set out m full the statute under 
which it was granted, but contained no further recitals. Thus neither 
by its terms nor by t he statute itself was it made(revocabl e \ nor does 
ir appear that any regulations had been adopted _ or promulgated the 
violation oi which would cansp a fnrfeiturp . Originally it may have 
been improvidently issued, but u pon being informed that citizens in 
'th e vicinity ot the detenaan t s premises objected to the erection of 
tlTP_ h"'^ding for its proposed use, it was not withim the power of the 
board of health, even after a hearing, in the ab.tence of authoritv 
conferre d upon them by legislative sanction, to deprive him of the 
pri vilege tney had unreservedlv granted. Commonwealth v. Moylan. 
119 Mass. 109, 111 ; Commonwealth v. Kinsley, ubi supra; Mayor v. 
Third Avenqe Railroad, 33 N. Y. 42 ; Shuman V. Fort Wayne, 127 
Ind. 109, 26 N. E. 560, 11 E. 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.^ 

28 See Lantz v. Hightstown, 46 N. J. Law, 102, 108 (1884): " I can find no 
-^"Bt ance In the p™pHr-o nf hnarrls nf PYPisft nv nthfir liCBTising hnfliPS-Trv 
■y ghipt i thA pnw pr of rpy fip"*''"" Vina hppn PYPvtpr| except under the provisions 
rtf g sTatnte." Spp. as to cancellation of license illegally obtained. State ex 
rel. Schaefer v. Schroffi, 123 Wis. 98, 100 N. W. 1080. post, p. 490 (1904). 

See, also, Thompson v. Gibbs, 97 Tenn. 489, 37 S. W. 277, 34 L. R. A. 548 
(1896). 



40 ADMINISTRATIVE POWER AND ACTION. (Part 1 

METROPOLITAN MILK & CREAM CO. v. CITY OE 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. Erom an interlocutory judgnient over- 
ruling a demurrer to a separate defense in the answer, plaintiff ap- 
peals. Affirme^. 

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 d irected all said 10 permit'; nr.. 
licenses to sell miJK meretotore issued to the plaintiff and under which 
the plaintiff was carrying on its said business to be forthwith an- _ 
nulled and revoked. T ha.t the action of the boardwas unjust, arhi- . 
trary, unlawful, and illegal , and witlinnt jngt fqii|gp, a nd that the said 
board was without any power, authority, or warrant in law to revoke 
said licenses. _ The form ot tne permits was set forth in the com- 
plaint as follows: "Metropolitan Milk & Cream Company is hereby 
authorized to sell milk, 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, an d_ is , 
, revocable at the pleasure o f tlip jinarH " 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE, 41 

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, 
unwholesomte, 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 
t he plaintiff, wbirh 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 1883, as amended). By sec- 
tion 34 (page 8) of that act the board of health was created a dev 
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 th e board of health "shall cause 
to be enforced the provisions of its Sanitary Coje/jUln People ex rel. 



42 ADMINISTRATIVE POWEK AND ACTION. (Part 1 

Lieberman v. Vandecarr, 175 N. Y. 440, 67 N. E. 913, 108 Am. St. 
Rep. 781, it was held that section 66 of the Sanitary Code which 
reads, "No milk shall be received, held, kept, offered for ^alp nr Hehy- 
ered i n the city of JNew York witVinnt a pprmii- in writing from the 
board of health and snhjert tn the conditions thereof" w as valid ; that 
it was lawful for the health authorities in the cify 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 niilk, 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 l,aws of 1901) 
the board of health is constituted. Section 1173 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. * * * f\iQ 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 oTT:he inhabitants and preventing th e sale of impure or aciul- 
terated food, ascer tained that Jthe plaintit t , acting nnrlpr the p ermits" 

"wnicn It nad issued, was engaged in selling impure and adulterated 
milk! 'l ^e board gave to the plaintiff nn ripp ni tVipgp Mncirg-pc^ '^n^ 
a"fter~ aliearing it revoked the permits : and to sustain the contention 
of the pla intiff we must hold that such permit therebv becomes i r- 
revocable and aut linriyps tVip person to whom it wap g ranted 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 di srpjrrardpH, a^^fj tha t a person act- 
ing under a pepnit from the board of health is selling to the inhab- 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 43 

itants of the city of New York poisonous anH I'mpnrp ^rtiVlpa frvr fnf ^rl, 
endangering the public health. 

The sole authority that the health board would have, if this con- 
tenti on was correct, would be to prosecute the person selling the poison- 
ous article in the sha pe of milk, fine him , and in the meantime such ^ 
person coulg go on poisonmg the peoplfunder a permit or license from" 
the healtn aumont ies. a proposition which is so unreasonable that"? 
mere statement is sufficient to refute it^ There i s nothin gJn^githeP 
the Penal Code or the charter that makes such a permit irrevocable. 
The perm it itself provides that it is revocable at the pleasure of the 
board, and the plaintiff accepted it with that conditionr~ TEere is notH- 
mg unreasonable in this condition ; and, irrespective' o f th e general 
power oi the board ot health to revoke a permit which is being abused 
and un der which the p erson accepting it and using it is persistentl y 
vioiatmg the law, it is certainly not an unreasonable condition to in- 
faeU iu lu such a permit a provision that it is revocable by the board 
that issues it. ro hold that a permit once granted is irrevocable woulc! 
be to totally defeat the obj ect of the statute in requiring such a permit 
' betore a person should engage in the business of supplying to th e in- 
habitants ot a city food. — * — * — *~** "^ " " 



SECTION 7.— ADMINISTRATIVE POWERS OP REGULA- 
TION—SCOPE AND VALIDITY 



POTTS et al.. School Directors, v. BREEN et al. 

(Supreme Court of Illinois, 1897. 167 111. 67, 47 N. E. 81, 39 U R. A. 152, 

69 Am. St. Eep. 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 13 W., in Lawrence 
County, 111. From a judgment of the Appellate Court (60 111. App. 
201) affirming a judgment for plaintiff §, 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 pubhcichool ot their distric t, and, the other an action of 
trespass to recovei damages tor the exclusion of a ppellees frnm gurh 

2* A portion of the opinion is omitted. 

This decision was referred to with approval in People ex rel. Lodes v. De- 
partment of Health, 189 N. Y. 187, 82 N. E. 187, l.S L. R. A. (N. S.) SM 
(1907). It was affirmed by the Court of Appeals, without opinion, 186 N. X. 
533, 78 N. E. 1107. 



1 



44 " ADMINISTRATIVE POWER AND ACTION, (Part 1 

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 
13, Lawrence county, 111., 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 
permit 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: "J Re- 
solve d, that, by the author ' < - y yf ^"^ ^" ^^'" ° ^^ ^r '^, ^''- 'g hpi-^hy nr^P^^ ^^ 
"tnat on and after Ja nuary 1, 1882, no pupil shall be admitted tb any 
public schoo l in the state without presenting sati sfactory evidence of 
proper a nd successful vaccination:" and that at tFe January meetmg. 
isy*, the said state board of health passed the following resolution: 
"Resolved^ JhaL<'hp ppwpr ni thp s tate. bn? r d~of health, under the law 
creatin g said board of health, to order the vaccination of all schQor ~ 
"cKTiaren. is dear and unq uestinnablp. Th e mnsegnent duty of th e 
" board oi schooT directo rs to see that such order is st rictly enforced in 
their re spective districts is equall v clear, and the said order of "th e 
board of health is thpir snffidea t 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 rnandamus as prayed, and assessed appellees' dg^n- 
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 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI CEGISLkATIVB. 43 

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 3 of the act creating the board of health (Laws 1877, p. 
208) is as follows: "The state board of health shall have the general 
s upervision of the mterests. -of-t lic hca kla and li fe of the citizens of 
the state. They shall have charge of all matters pertammg to quar- 
aritine, and .shall havp antVinrity tn rrigifp gii ch rules and regulations, 
and such sanitarv investigations, as they may from time to tim e deem 
necessary for the preservation or improve ment of public healtti; an'H^ 
i t shall be the duty of all police otncers, slieritts, constables, an d all 
other officers and employees of the state to enforce suc h rules ana 
regulations, so far as the efficiency and success of tne board may d5^ 
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 13 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 krlowledge 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 ■ ADMINISTRATIVE POWER AND ACTION. (Part 1 

to the qualifications of practicing physicians and surgeons, and to* 
detect quacks, and to prevent them and all ignorant pretenders from 

V imposing upon the sick and helpless. 

J 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, 

J 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 
as 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, 138 111. 465, 21 N'. E. 558, 15 
Am. St. Rep. 129, it was contended that the city had the power, under 
clause 78, § 1, art. 5, of the city incorporation act, to construct and 
maintain 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 jprovision did not enlarge the 
powers conferred by the special provisions. 

As recently held by the Supreme Cotirt 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- 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 47 

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 w» 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 * * * g. 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 ADMINlfeTEATIVB POWER AND ACTION. (Part 1 

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 
recederit to the exercise of some right or privilege guarantead to the" 
citizen by public law, can be derived irom no other source than the 
general police power of the state, and can be justified upon no othe r" 
round than as a necessary means of preserving the public health. 

ithout 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 disseminated 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 
fhpjame linp nf m an ning, wi t hout a law mnl d flg vaccination compul-. 
so rv. or prescribing it. upon grounds deemed sufficient bv the Legis- 
lature as n ecessary to the public health, as a condition of admission to 
or atte ndance upon the public schools, neither the state board nor any" 
l ocal board has anv power to make or enforce "a rule or order having" 
the force nf a general law in the respects mentioned. ' ' 

We are not called upon to consider whether 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 49 

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. 18S, 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., 93 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" ior 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, Tugraan v. City of Chicago, 78 111. 405. 

As said in State v. Young, 29 Minn. 474, 9 N'. W. 737 : "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 locahty where any dangerous, communicable disease existed or not. 

The case of Abeel v. Clark, 84 Cal. 226, 24 Pac. 383, was a manda- 
Fk.Adm.LtAW. — 4 



50 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 
Che 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 WilHamsport. 
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 v. 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 L,egislature. 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 51 

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, 79 111. 567; 
Trustees of Schools v. People, 87 111. 303, 29 Am. Rep. 55 ; McCor- 
mick V. Burt, 95 111. 363, 35 Am. Rep. 163, Chase v. Stephenson, 
71 111. 383 ; People v. Board of Education, 101 111. 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.^ ^ 



ARMS v. AYER. 

(Supreme Court of Illinois, 1901. 192 111. 601, 61 N. E. 851, 58 L. R. A. 
277, 85 Am. St. Rep. 357.) ; 

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 

2 5 "Neither the holding of the Supreme C!ourt of Illinois nor that of the 
Wisconsin Supreme Court in the cases mentioned [Potts v. Breen, 167 III. 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 conclu- 
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 autliorized when a more 
reasonable one can be supplied." Blue v. Beach, 155 Ind. 121, 140, 56 N. E. 
89, 50 L. n. A. 64, 80 Am. St. Rep, 195 (1900). 



52 ADMINISTRATIVE POWER AND ACTION. (Part 1 

(Laws 1897, p. 233), 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 sill 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, andi one such automatic metallic escape, 
or other device, for every twenty-five (35) 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 

liUumbers 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 

jbe provided with fire-escapes of the kind and number and in the man- 
ner set forth in this act. 

A^ "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 ox 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 theni, 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 $300, and to a further 
fine of $5'0 for each additional week of neglect to comply with such 
notice. 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 53 

"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."" (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 m a(]p tn thp statntp by ronnsel 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. 313, 30 
N. E. 267, 15 Iv. 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 

2 8 Portions of this ease are omitterl. 



54' ADMINISTRATIVE POWEB AND ACTION. (Part 1 

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. 

Th e general r ule isjthat„_a. statut e must be complete when it leaves 
the Legislature — as tn what tVip law is — leaving its execution to be 
vested in third p arties. Thus it was said in Dowling v. Insurance 

~Co., 92 Wis. 63, 65 W. 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 prsesenti, but which may be left to 
take effect in future, if necessary, upon the ascertainment of any pre- 
scribed fact or event." And it is said in Suth. St. Const. § 68 : '-^The , 

f 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. To the latter no 
objection can be made." 

In People v. Reynolds, 5 Oilman, 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 generar 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 _ Jn all its det ail§,_reg uiring the fircr 
escapes to be put in certain buildin gs. The ou tside escapes' must be 

_'!J0 COKstructed 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 6ccupants 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 55 

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 
111. 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. Kuh, 188 111. 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 performance of any duty by the inspector of factories. 

In McRickard v. Flint, 114_N^. 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 sliall 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. MuUedy, 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 ADMINISTKATIVE POWER AND ACTION. (Part 1 

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 remedy." 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 oi 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 iiispector 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 failiire 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 Am. 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 w ork is car- 
ried on by which dii^t, filampntg nr injur'"'''"' eases are generated or 
produced that are lia hlejn be inhaled b y the p ersons gnTpTn^TpHj^Wpin 



Ch. 1) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 57 

and it appear s to the commissioner nf the hnrpan nf lahnr statistics 

' that sucn mhalation could, to a great extent, he. prpvpntpH hy thp. use 

_of some mechani cal contriv ance , he s Tiall rliVpr t that snrh contrivance 

shall be provided, and within a reasonable time it shall be so provided 

and uaeC" 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- 

^J ected, af ternntirp, tr» prnviHp anH ngp g ciir Hnn pyhan ctpr witli prnp- 

~erly attached pipes, hoods, etc.. in a m etal polishing- phnp . within a ^ 

reasonable time after having been directed so to do. The ultimate 

ques tio n presented for considerati on under this writ is that of the 

cu nsiimtionaiity ot the act above quoted. 

'ihat 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 employes in given vocations, and to make the violation of 
those laws penal offenses. The limit to which the state may 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 flree right ^ 
of contract between employer and employe — 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, 43 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 employes, 
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 employes 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 pronounced valid 
by the courts. 

In People v. Smith, 108 Mich. 527, 66 N. W. 383, 33 L. R. A. 853, 
63 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

validity of such laws may be tested. Each law of the kind involves 
the questions: (1) Is there a threatened danger? (3) 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- 
ploye to provide by general law that all employers shall furnish a rea- 
sonably safe place and reasonably wholesome surroundings for their 
employes. 
/ 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 

fright 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 appHances. "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, geems 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. 230. 

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- 

I missioner, such liability to inhalation could "to a great extent" be pre- 
vented, he may designate and prescribe the kind of apphance which in 

Vhis 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) EXECUTIVE, QUASI JUDICIAL, AND QUASI LEGISLATIVE. 5\) 

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 apipliance 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, 
63 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 S 
by the fish conjmissioners 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 efifect 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 
tliat use as it may see fit, and in this case the requirement was that 
the person so obstructing the water should build an appHance 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. 33, 39 N. E. 833, 37 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 ADMINISTEATIVB POWER AND ACTION. (Part 1 

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 unjder 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 "Tlie 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 vests 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 Bep. 495, 36 L. Ed. 294, where 
it was decided that the third section of the tariff act of October 1, 1890 (26 
Stat. 567, c. 1244), was not repugnant to the Constitution as conferring 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, inviest 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) ADMINISTRATIVE DISCKETION- 61 

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 accot-ding to his 
discretion, the law intends it must be done with a sound discre tion and 
according to law ; and the Court of King's Bench hatha power to re- 
dress things that are otherwise done notwithstanding they are left to 
the discretion of those that do them. 1 Lil. Abr. 477. 

Discretion is to discern between right and wrong, and therefore 
whoever hath power to act at discretion is bound by the rule of reason 
and law. % 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 no liberty can defend it. Hob. 258. 



STATE V. JUSTICES OP INFERIOR COURT OF MORGAN 

COUNTY. 

(Supreme Court of Georgia, 1854. 15 Ga. 408.) 

Lester Markland applied to the infe rjof rnnrt nf Morgan rnnnty for 
a n ord er for a l icense to retail spirituous liq uors i^i that cniint y, hav- 
ing paid tor such license, and being read y_ to give the bond and se- 
curity required. — The c m irt.refuS 6J T:o granFth p lir^^^g'^ i ■-■" <-^p p-rnnnH 
' Lhj: b Llie au i J licant was an unli t person to be so licensed — ^having been 
twice convicted of selling spiri tuous liquor to slaves, contrary to law.: 
" On hearing this return to a mandamus nisi, Judge Hardeman re- 
fused to make the mandamus absolute. This decision is assigned as 
error. 

StarnES, J.i * * * 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 housei 
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 t he limits of the discretion, by this act 
conferred upon the in ferior court, are: H^ A consideration of th e 
convenience oi the locality i ntended for a tavern. (2) The abihtv of 
the petitioner to supply such ta vern with proper accommodation for 
traveller s, their horse s_an d attenda nts Aji d that no Qiscretion, what~ 
ever, is given the infe rior court, by which to grant or refuse the li- 
cense, according as the character nf the applicant may be pood or ha d. 

'i'he 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.^ 



PEOPLE ex rel. SHEPPARD v. ILLINOIS STATE BOARD OF 

DENTAL EXAMINERS. 

(Supreme Court of Illinois, 1884. 110 111. 180.) 

_ This is an ori ginal proceeding in this court for a mandamn';. The 
petition theretor 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 (1888). 



Ch. 2) ADMINISTRATIVE DISCRETION. 63 

lege oh 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 a 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. Gushing, and that by the failure and refusal 
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 quahfied 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 ADMINISTEATIVH POWER AND ACTION. (Part 1 

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 he unlawful for any pers o r ''"'^^ '° "'^^ ^^ ^^f^ timp 
^f the Dassa£;-e of this act en^a^ed in the p rartirp nf rlentistry in this 
state, to commence such practice, unless such person shall have receive d 
a diploma from the faculty of some reputable dental college duly au -r 
~th orized by the laws of this state, or of some other of the United 
Stat es, or by the laws of some foreign c ountry , in which college or 
"colleges there was, at the time of t he issue ot such diploma, annuall y 
delivered a tull course of lectures and mstruction in dpntal surgery." 
And m 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 reputabl e 
denta l college, without exammation. upon the payment by such gra d- 
uate to the said board of a fee of onp dnilar. " 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 rnntentinn nf the relator is tha t the board nf denta l eyaminprs 
have no power to decide what i c j. or what is not, a "reputable dental 
colle ge" — that the law has itself defined what is a "reputable denta l 
~ ColTege," in providing thatit shall be "duly authorized by the laws 
ot thlSSt ate. or some other nf the TTnited Stat^f;, n y by the laws -o f 
some to reign country, in which rnllp f re — * * * there was, at the 
time o± 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" wou ld see m 
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. S) ADMINISTRATIVE DISCRETION. 65 ' 

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 re quired thrit ^^''- 
rolleges be "reputable." Whether a college be reputable or not is 
not a legal question^ but a g npsf'"" "^^ ^^nrt. So. also, are the require - 
m ents in regard to the annual d pHvpry ni full fnnrsps ni Iprtiirgf; 
'5nd mstruction. Z 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 art ni asrertaining- an d determi ning- what are the farj-s. 
is in its nature judicia l. I t involves investifatinn. p Hormpnt anH Hig- 
cretion^ 

The office of the writ of mandamus is, in general, to compel th e 
peflormance of mere ministeri al acts prescribed by law . It lies, 
however, also to subordmate 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 salid 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 v ested w ith power to determine a ques^ 

J:ion of fact, the dutV is lUCllCial. a r-^ tUnucrh it pan hp rnmppllprl hy 

mandamus to determine thf farf, it ran nnt he direrted fn rlpn'Hp jj- jn 
a particular way, however clearly it be ma de to appear what the de- 
cision ought to be." See, also, Kelly et al. v. City of Chicago, 63 

111. 2r^T-^^ ~ 

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. 317 ; Bailey v. Ewart, 53 Iowa, 111, 3 N. W. 
1009 ; Berryman v. Perkins, 55 Cal. 483 ; People v. Contracting 
Board, 37 N. Y. 378, and other cases cited in argument" by the At- 
torney General. 

Fb.Adm.Law. — 5 



66 ADMINISTEATIVB POWER AND ACTION. (Paft 1 

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. Ttnt s ,mrp tVip bnar d canno t be compelled to 
decide the question that way, although the evidence might clearly 

SUStam It in doing so, tb Pr f is nn grmmrl for manrlamiis. 

The demurrer must be sustained, and the petition dismissed. 
Demurrer sustained.^ 



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. Avers against Arthur W. 
Hatch, Mayor, and others, to compel reinstatement to the office of 
City Assessor of the Citv 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 remove d by the 
mayor lor such cause as he shall dppm ■;iiffiHpn<- and shall assig n 
m his o rder nf removal, and the r emoval sh all take effect upon the 
filin g 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, 
§ 29r. Yne 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 admi nistration of the affairs~of the rity is tbng plarpH largp- 
-f ynpoh tiim7"axid, consistently therewith, he is given the power of 
^XSXaail2.l. The fact, hnwp.ver , that re movals are tn be for r.aiT se,_re- 
pels the ide" "f rprpnyal at plpagnrp f-irpn thoug h thp sufficiency of 

the cause is for him to decide . 

The question then arises, what jurisdiction has this court in r e- 
g ard to remoy als? The answer, it seems to us, is this: Cause im- 
plies, we think, a reasonable ground of removal, and not a frivolou s 
or w holly unsatisfactory or incompetent ground of removal. If the 
"cause assig ned is a reasonable one, then, whether, under the cir- 
'cumstances , it is sufficient to justify a removal, is for the mavor to_ 



^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, 229 111. 56, 82 N. E. 271 (1907). 

4 Portions of this case fire omitted. 



Ch. 2) ADMINISTEATIVB DISCEBTION. 67 

^ecide, and his d ecision is final. But whether the cause assigned 
^nstiTutes7 ot itselt, as matter of law, ground for removal, is a 
question tor 4:his court to determine. In" the present casg thp pause 
assigned was "the good of the service," and manifestly , it seems to 
us, that was good ground for removal . The natural inference would^ 
be t hat in some respect the petitioner had failed to perform his 
^ jnties, or was incompetent or inefficient, or was an unsuitable person 
~To r the position to wnich he was appointed. Tf the .charter provided, 
as m 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 thin k that the petition should be dismissed. 
So ordered.^ ~~ 



HARRISON, MAYOR, et al. v. PEOPLE ex rel. RABEN. 
(Supreme Court of Illinois, 1906. 222 111. 150, 78 N. E. 52.) 

■Mandamus bv 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 tc 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, as 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 s atisfying him of their good character. E ach 

B See, also, Re Guden, 171 N. Y. 529, 64 N. K 451 (1902). 



68 ADMINISTEATIVH POWER AND ACTION. (Part 1 

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 or 
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 
shall 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 school and the 
surroundings is truthfully set out in the following plat." 

The plat referred to is immaterial in the decision of the case. 

Wii,KiN, 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, 68 111. 444. Of course, 



Ch. 2) . ADMINISTRATIVE DISCRETION. 69 

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 Hcense 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, 103 111. 553. 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 ^-nmppllpr l tr> iggnp a lirpngp y.i\\pn I'n tVif.iV >^igfrPti^>T^^ rpgc^pp^- 

bly and fairly ex ercised, the' license has b^fn rpfntpH Leigton v. 
-Matn77 7{) Va. HtJ5 ; People v. Boar^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, 7 Utah, 143, 25 Pac. 
739, 99§^^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, 63 111. 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 ADMINISTRATIVE POWER AND ACTION. . (Part 1 

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 a'hd disturb school children. 
AA/p arp ripcirly r>f fVig ripin^nn thfit iippji, the facts ju this case there 
was no such abuse of discretion on t he p^rt-ef the mayor as woiltd— 
justil y the courts in compelling him to grant the license applied 
tor. ~~ " 

The judgm e nt of the Appellate Court w ill be reversed, and the 
cause wil l beremanded to the superior cou j jTwm directions Lo disinis^ - 
'^tfte'petiHq rL^, 

Judgrnent reversed.' 



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 

6 Accord: Muller v. Com'rs of Buncombe C?o., 89 N. C. 171 (1883). See, also, 
People ex rel. Schwab v. Granti 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. Plilliard, 28 App. Div. 140, 50 N. X. Supp. 909 (1898). 

Discretion as to renewal of licenses, see the elaborate opinions in Sharp v. 
Wakefield [1891] App. Gas. 173. The matter was subsequently dealt with by 
the English Liceiising 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, 
§§ 634-640. 



Ch. 2) ADMINISTRATIVE DISCRETION. 71 

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 tht goods' and chattels of the said R. C. N. Carne, the sum of 
£14. lis., 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 boai'd, 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 pr other officers, or any of them, in like manner 
as monies assessed f6r 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 ADMINISTEATIVB POWER AND ACTION. (Part 1 

CocKEURN, C. JJ 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 have 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 theiy 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.* 



ILLINOIS STATE BOARD OF DENTAL EXAMINERS v. 

PEOPLE ex rel. COOPER. 

(Supreme Court of Illinois, 18S7. 123 111. 227, 13 N. B. 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. 
Kurd'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 

1 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. 8S1 (1731); Ex parte Persons, 1 Hill (N. 
Y.) 655 (1841). 



Ch. 2) ADMINISTRATIVE DISCRETION. 73 

vtfith 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, stt 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, 110 111. 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 performanop 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. 791. 

In Village- of Glencoe v. People, 78 111. 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 ADMINISTRATIVE POWEE AND ACTION. (Part 1 

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 
months' 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 avqrs 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, arid 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 dentistr}*. If four of the five members which comj)ose the board 



Ch. 2) ADMINISTRATIVE DISCEBTION. 75 

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 u'nworthy 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 35th 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 hv- 
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 
hand, counsel for appellant insists that while no colleges which fail 
to comply with the rule will be regarded as reputable, yet the board 



76 ADMINISTKATIVB POWEK AND ACTION. (Part 1 

vKJ-jld 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 
Jje 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 that 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 diploma. 

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 put of the way, their judicial or discre- 
tionary power was exhausted. The duty to issue the license was 
then a mere ministerial 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.* 



'DODD et al. v. FRANCISCO et al. 
(Supreme Covert 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.^" * * * 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 AIo. 633, 38 S. W. 323 (1896). 
10 Only part of the opinion is printed. For other part, see post, p. 200. 



Ch. 2) ADMINISTRATIVE DISCRETION. 77 

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- f 
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 n\ore than one member thought that only sanitary 
considerations should have weight ; but it is at least doubtful whether 
the board, then composed of eight mfembers, 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 23, 1903, is affirmed, 
with costs." 



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. Sparro-^, 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 13 miles of it." 

(d) "Tha,t remonstrances were filed against said application where,in 
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 Oonn. 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 ADMINISTBATIVE POWER AND ACTION. (Part 1 

that said license was not necessary for the accommodation of the pub- 
lic, and the entertainmerit- 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 communit^^." 

(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 Hcense 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, 
aotwithstanding 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 s ame was not a mat ter of public necessity, and 
therefore a jjiritjnni Llnwfnl r r r nmr i fn i n I n i iii j^ ' In rri i n t it; n nd thnt 
this, opinion is based u pon our acts of assembly as interpreted by your 
honorable pourt." 

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. 

y^rp h^vp rlprirlprl rpppatf-Hly in langna g-p. fnn plain to he misundcr- 

stood, that the granti ng of a license to sell liquor by retail rests in the 
j sound discretion oi tne court below. In Reed's Appeal, 114 Pa. 452, 6~ 
Atl. 910, we said: "The action of the court in granting the Hcense 
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 22d 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) ADMINISTRATIVE DISCRETION. 79 

mind, and the power has again and again been affirmed by this court. 
This discretion, however, is a legfal 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 means 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, 73 Pa. 200, Mr. Justice Ag- 
new, in referring to the same subject, said: " Whether anv or all li- 
censes should be granted, is a legislative, not a judicial, ques tion . 
Courts s it to administer the law fairly, as it is given to them, and not 
tCT-THake 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 licetise shall be granted, and therefore 
■ has given it t o Llie LOlU i lo decide up on e ach case as k arisea in dTO 

co urse Ot law. ' The art o f dpriHino- is jiirliri-al^ Tnr1 net Trhifrary nr 

'wilItuL The discretion ve ^tpH in thp rnm-t ic fhpyp fnre., a souiTdjn- 
dicial d iscretion ; and , to be a rightf ul judgment, it must be exercised 
in the particular case, and upon the fact s and circurnstances, before the 
court, and after they have been heard and duly considered-^in other 

~vofds, to be exercised upon the merits of each case, according to the 
rule giv en py tne act of assemblv. To sav 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, becaus e, in the mind of the . 

Judge, there is a belie f that licenses should not be granted at all, as a 
matter of policy, is to make law, not to administer it. The j uHp-e 
t o wh om an application is made m ay info rm bis rnnsnVnrp I'n fh^ man — 

jer before pointed oii t. fie may hear remonstrances , and it is his-duia;— 
to.tyive them due weight, but, after all, the responsibility rests with 
him, and he m ust exercise his own judgment and dis f-fpfi"" i" thp Hgrht 

^hich such aids h ave furnished ^ In the case in hand, there app ears to. 

-have been an unusual ettort, both for and against the apphcationr' 



80 ADMINISTRATIVE POWER AND ACTION. (Part 1 

The number of rpmnngtr antg rnnci'^prilily PvrPpHg f^gf nf t}]f pPJJ^ 

tioners. This is all very well so far as it is arldressed to the discretion 
ot the court.; _ T he result is not con di Tgivp n pnn Viim Otherwise, we 
would have local option without the sahction 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 
app ear, however, to have wholly substituted thf j'ldtTmpni- n f the re- 
monstrant s ^ tnr his nwn Thp mn<^f that ra n he said is that th py wprg 
Ot SUttlcIentweight to convince him that tViP Hrpngp Tyfjg nnt a tViattpr 

of public necessity. In the view we take nf the case, this was not an 

"abuse ot discretion. W p arp nnt mllprl npnn ir, sny ^mhpthpr jf vy f)- ^ 

^y' exei cistid'wis ely^ 
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 b y Herman Gross for wholesale liquor license. From a 
d ecree reiusmg it , applicant apppalg Affli-rri pH. 

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, th_p jnfprpnf-P npfp ssarilv is that the refu sal was no^ 
the exercise of discretion, but the result of arbitrary wil l. 



Such inference is not warranted by the facts. The sixtR section of 
the act of June 9, 1891 (P. L. 359), providing for Hcenses to whole- 
sale dealers in hquors, says : ' " The court of quarter sessions shall hear 
petitions from residents of the county, m addition to that of the ap - 

. plicant, in favo r of and r emonstrance against the application for such 
license, and m all cases shall retuse the same whenever, in the opinion 
of said court, having due reg-ard 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 license s should be 

^granted." . I'his 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) ADMINISTRATIVE DISCRETION. 8l 

, 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. Thr_£. "f ' '"ris p n f jndir i n l disT^ti^n ^y +hf r r>iirt is comtTianded 
by the stat iitp T his being so, how far this court will g'o in reviewmg 
the decrees of the quarter sessions. no t^vithg<"^"'^'"g t-ppp^tP^l dfri-. 

^ sions. seems still to be in doubt. The refore, 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 m 
our mmds the same beUef as in that of the court below, as to the 
character of the applicant, or other material averments, is wholly im- j 
material. It is the discretion of the court of quarter sessions, not 
ours, that the law requires. 

3. A decre e made arbitrarily, or in violation of law^ it is our plain 
duty to~sei" aside. Knr example, it a jurlp-e shnuld 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 he.arinp - at a timp 
fixe d by rule or standing order, the presumption is that the decree is 
ludicial. and not arbitrary: and tliis presumption is not rebutted by 
an argument from evidence tha t the court ought to have reached a 
differen t conclusioiT in the case Detore us the record sho ws the li- 
cense w as refused a fter~heaiuig. — T he act is an ohicial one, per- 
mit ormed by a public officer m the exercise of the functions of his 
office. T he presumption, in all such cases, is that the officer perfo rmed 
his d uty according to law. He is not bound to set out legal reasons •^or~~ 
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 
Fk.Adm.Law. — 6 



S2 ADMINISTEATIVE POWER AND ACTION. (Part 1 

the argument of this case, that they are made without lawful reasons. 
We can comprehe nd how a man's conscience r^ay rnnrlpmn ac wrnng- a 
law ot tl Te_iand. "But that sort of a conscience, so tender as to with- 
h old approval of a law, vet which voluntarily talc pg an oath to ad- 
minister it according to i1^s_t riie intent and nueaning. and then deliber- 
a tUy vI u Ia L cb IL, J g-'b eyonHour comprehension. ^A/p will not assume . 
"without mcontro vertible evidence, of record, that there is such an one. 
'i*ne decree is athrmed, and the appeal is. dismissed, at cost of ap- 
pellant.^^ 



SECTION 10.— VALIDITY OF UNREGULATED DISCRETION 



WILSON V. EUREKA CITY. 

(Supreme Court of United States, 1S99. 173 U. S. 32, 19 Sup. Ct. 317, 43 U 

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 $35. 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 34th 
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 LicenseSj 4 Luz. Leg. Reg. (Pa.) 527 (1888). And see 
cases under mandamus, § 53. 



Ch. 2)r • ADMINISTRATIVE DISCRETION. 83 

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 Utah, 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 riot 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 ADMINISTEATIVH POWER AND ACTION.- (Part 1 

Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; ^= State v. Daring, S4 
Wis. 585, 54 N. W. 1104, 19 I^. R. A. 858, 36 Am. St. Rep. 948 ; An- 
derson V. City of Wellington, 40 Kan. 173,' 19 Pac. 719, 2 I<. R. A. 
110, 10 Am. St. Rep. 175 ; Mayor, etc., v. Radecke, 49 Md. 217, 33 
Am. Rep. 239; City of Chicago v. Trotter, 136 111. 430, 26 N. E. 
359." ' 

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. Bering; 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 must 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 
witho'ut the prior consent of the park commissioners (Com. V. Abra- 
hams, 156 Mass. 57, 30 N. E. 79), or upofi 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, 130 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, 176 111. 9, 51 N. E. 758, 42 L. 
R. A. 696, 68 Am. St. Rep. 155 (1898) ; Noel v. People, 187 111. 587, 58 N. B. 
616, 52 L. R. A. 287, 79 Am. St.' Rep. 288 (1900). 



Ch. 2) ADMINISTRATIVE DISCRETION. . 85 

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, 7 Cow. [N. Y.] 349); for- 
bidding the occupancy of a place on the street for a stand without 
the permission of the clerk of Paneuil 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 [23 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 superin- 
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 plaintifif 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 "Common," 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.^^ 

15 See, also, Gundling v. Chicago, 176 111. 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 Griinhut's Zeitschrift fUr Privat- u. OfeentUches Recht, vol. 18, 
pp. 148-163; Id., vol. 19, pp. 327-411; Laun,'Freies Ermessen, 1910. 



86 ADMIKISTEATIVE POWER AND ACTION. (Part 1 

CHAPTER III 
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.) 

Williams, J." * * * gyj. jjj 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 v. Nor- 
wegian Tp., 14 Pa. 643. Not so, however, ^when the act; is one that 
requires deliberation and the exercise of judgment. ^Cooper v. Lam- 
peter Tp., 8 Watts, 135 ; Union Tp. v. Gibbpney, 94 Pa. 534 ; Som- 

lAs 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 X. 
Y. 521 (1877) ; Wigmore, on JBvidence, § 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 L. 
Ed. 264 (1839) ; Runkle v. U. S., 122 U. S. 548, 7 Sup. Ot. 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) FOEM AND PROOF OF OFFICIAL ACTS. 87 

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 stjpervisors 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. * * * s 



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.* 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 lawj 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. Tost, 197 Pa. 171, 46 Atl. 84.5 (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). 

1 Only a portion of the opinion of Eyre, 0. J., is printed. 



88 ADMINISTRATIVE POWER AND ACTION. (Part 1 

would turn on two general heads of inquiry: First, what the gen- 
eral rule of law was in the case of bodies of jnen 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 ininority, 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 
mjpet, and when they have met they beconie just as competent to de- 
cide as if the whole had met.° With a view to this 9ase, 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. * * * jf -th^t 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 judgment 
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, , * * * ' 

On this point see Throop, Public Officers, § 112. - 
sAttorney General v. Davy, 2 Atk. 212 (1741). 

1 The discussion, of the second question is omitted. 

"It cannot he 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 vcell-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 Oc^n. 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 meet and consult and a majority agree to the 
act, is subject to the necessary qualification that, if one is notified to attend 



Ch. 3) FORM AND PROOF OF OFFICIAL ACTS. 89 



SECTION 13.— SAME— PRESUMPTION THAT AU. MET OR 
WERE NOTIFIED 



McCOY V. CURTICE. 

(Supreme Court of Judicature of New York, 1832; 9 Wend. 17, 24 Am. Dec. 

113.) 

TrovA". Defendant justified as collector under a warrant signed 
by two trustees of a school district. 

Sutherland, j.s * * * 'pjjg 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 deleg-ated to two or mo re individuals for a mere 
private pnrpnsp m no respect altec rin p- the j j ^iihLic it is n y.es.sa ry th^^t 
all should join in the execution of itj Thus arbitrators must all unite 
" in ari award . ±iut in matters of a public concern, if a:ll a TQjax£S£nl 
^the majority cat i p''^, ^" d their, acts will be the acts of the whol e, ll 
""Bos. & Pull.l36; 3 T. R. 592 ; Green v. Miller, 6 Johns. 41, 5 Am. 
Dec. 184. There can be no doub t that a. c.nni,y^c:.t made by all of the 
trustees^and signed , by two )vould be binding, or t hat two could con- ( 
^ract a^ nin'it^ ttf'; will ot tiy ^ e ^ fliird^if he was Qulv not^j^ed QE inmiTiAlit i^- 
and rp^i]Sfid_tn-!a£±- ' I he convenient disnatch at nnhlic business re- 
quires that it should be so. Ex parte Rogers, 7 Cow. 536, 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 ADMINISTRATIVE POWEK AND ACTION. (Part 1 

GALBRAITH v. LITTIECH. 
(Supreme Court of Illinois, 1«74. 73 111. 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 Oilman, 10, Ferris v. Ward, 4 
Oilman, 499, and Dumoss v. Francis, 15 111. 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 t he road was introduc ed,^ and .also„^l;ie re port si g n ed by t wo 
of the" viewers. I t did not' state t hat the other failed or refused "'l:o'"" ai'c:t' 
with them, and , failing to state tnat tact , we must presume' t'hat fTg" 
was present anTTSo a'tJtgy^ TO'fgah' t'hd g?esumptiofi as io that'trcTbe 
overcome by parol evidence? We will presume tnat trtg UUUIllV WTti- 
missioners neard evidence, tliat the other commissioner acted, but fail- 
e d to lo in in the report, and-tKe presumption is not contradicted by 
th e record. T his is a complete answer to that objection, if i' f «- — ■ 

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 (190O): "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, § ISs : "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) FORM AND PROOF OP OFFICIAL ACTS. 91 



SECTION 14.— EVIDENCE, OF OFFICIAL ACTION— ON 
DIRECT ATTACK 



GILBERT V. COLUMBIA TURNPIKE CO. 
(Supreme Ck)urt of Judicature of New York, 1802. 3 Johns. Cas. 107.) 

Application by E. Gilbert to set aside an inquisition found by three 
commissioners appointed under the second section of the act amending 
the act establishing the Columbia 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 found9,tion of the whole proceedings, and without them the 
judge could have no jurisdiction in tlie 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- 
tite 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

HARBAUGH et al. v. MARTIN. 
(Supreme Court of Michigan, 1874. 30 Mich. 234.) 

CooivEY, J.^° 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.^^ 

10 Only a portion of the opinion is printed. 

11 See, also, McGregor v. 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 necesssry-to the sufficiency 
of the petition that said facts be alleged therein [citirig authorities]. Any- 



Ch. 3) FORM AND PEOOF OF OFFICIAL ACTS. 93 

MEEKER V. VAN RENSSELAER. 
(Supreme Court of Judicature of New York, 1836. 15 Wend. 397.) 

The declaration charged the defendant with pulling down five dwell- 
ing houses. * * * 'j*he defendant proved that the board of health 
of the city had directed the nuisance to be abated. To this proof the 
plaintif? 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.^^ * * * j^. ^^g 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 aff.ect 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 proceedirigs of the corporation, 
of which the board of health were members, and were proved by a 
witness a member of both boards. * * * 



WHITEEY V. PLATTE COUNTY. 

(Supreme Court of Missouri, 1880. 73 Mo. 30.) 

Norton, J. The controversy in this case grows out Qf 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 said 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 estajlishinp- gaifj] rnaH^ b ecause it was made without notice to 
laintiff,~ a nd because the said board had no jurisdiction tr> make jt^ 



-S 



he court overruled the motion, w hereupon 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 Oonaway v. Ascherman, 94 Ind. 187, 190, to tlie contrary is over- 
ruled." i5Btna Life Ins. Co. v.- Jones (Ind.) 89 N. E. 871 (1909). 
12 Ouly a portion of tills case is printed. 



94 ADMINISTRATIVE POWEE AND ACTION. (Part 1 

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- 

I 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, ghall be ascertained and" assessed by the township board." 

T't 'S r Wn r frnm <-hPcp rtnfufnry prmrin'nns thnt j*" i" a" i n dispensable 
prerequisite, to laying out a new road that the petition for the same 



must be made by twel ve legal voters and householders ot the town- 
shiplivj ng within three~miles ot the proposed road, and that a copy 
of such ^tition must be posted in three of the most public pla ces in 
_H-ip_tnwnshi p at ]p: \ <^\ tw '-' ^ - y d''y l-"'f"'-» i"y n'-ti^n r^ r^ he- taken ifT 
reference to it. T hese facts are jurisdictional and must affirma tively 
appear in the pro ceedings, and unless th ey do so appear no junsdic^ 
tion.is cbnterred. and none can be exercise J The object oi 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, a!nd completely deprive and divest him of all con- 
trol over the same; and in order tha t such no tice 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. 
^he record hefor " pg pntifply fgilg tn ghnw t rnmpHnnnn Yp^h thr Irjw 



in th ese respects, it onlv appearing therefrnm" "t hat it w^g pmyp^f |-q__ 
the satisfp ^tinri ni the hnarH that notice of the o pening- of said rnaH hari _ 



Ch. 3) FORM AND PROOF OF OFFICIAL ACTS. 95 

been posted in three places along the line of tVip marl for twenty days 
" previous to this d ate?' N either does it appear frnin 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 livin g 
.^Qthi n three mil es_of_thg_r oad. The persons signing the petition are 
^desig nated as citiz ens of Weston township. 

It iheretore lollows 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.— Same— IN ENFORCEMENT PROCEEDINGS. 



PEOPLE ex rel. GREENWOOD et al.. Highway Com'rs, v. BOARD 

OF SUPERVISORS OF MADISON COUNTY. 

(Supreme Court of Illinois, 1888. 125 111. 334, 17 N. E. 802.) 

Appeal from Appellate Court, Fourth district. 

Proceed inp- bv mandamus hv. Peter Greenwood, J. M. Kendall, and 
John T. Brown, Highw ay Commissioner s of the Town of Wood 
River, a gains t the Board of Supervisors of Madison County. tctcom-_ 
pelan appropriati o n of one-half of "the cost of building a bridge in 
t he town ot Wood River. Mandamus denied, and relators appeal. 

ShopE, J.^^ * * * 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 acti(Sa 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 ADMINISTRATIVE3 POWER AND ACTION. (Part 1 

that the same could be admitted or traversed. Trustees v. People, 
12 III. 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 xmder a legal obligation to do. and perform tke 
act required, and every material fact necessary to show such legal 
duty must be averred "in the petition. Hall v. People, 57 111. 307 ; 
People v. City of Elgin, 66 111. 507; People v. Village of Crotty, 
93 111. 180. 

The act in relation to roads and bridges under township organiza- 
tion, approved May 28, 1879, and in force }uly 1, 1879 (Laws 1879, 
p. 257), is brbad 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 pi'oceedings 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 b e a qua "'" roT"^=''"''""j powerless to act ex- 
cept t o g pth ° r n nr l nn n bprlj- (Commissioners v. Baumgarten, 41 111. 
254; McManus v. McDonough, 107 111. 95), and of which action, as 
we have seen under the act of 1879, they were re quired to "kee p 
ia_£Q-rrect record." It seems clear that the same rules of law are to 
be applied to this corporate bo^y, in respect to its corporate action, 
ahd 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) FORM AND PROOF OF OFFICIAL ACTS. 97 

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 had 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 sum 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 1883, who testified that 
the commissioners held meetings on April 19, August 19, and Sep- 
tember 2, 1883 ; 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 
Tb.Adm.Law. — 7 



98 ADMINISTEATIVE POWER AND ACTION. (Part 1 

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, isuch 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., 77 111. 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,- 
iOO.Ol ; 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 deterrriined 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 tl-;ereof ; 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. 
Tlie 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) FORM AND PEOOP OP OPFICIAL ACTS. 99 

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.^* 



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 

1* As to defective and erroneous records, see Dillon, Municipal Corporations, 
§§ 2^-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 uprfn action as it appeared on the 
record, see Sawyer v. Railroad, 62 N. H. 135, 13 Am. St. Rep. 541 (18S2) ; 
Bissell V. Jefferson ville, 24 How. 287, 16 L. Ed. 664 (1860). 

There are many statutory provisions relating to presumption of regularity, 
especially in highway proceedings arid tax sales. 



100 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 codv of an nrder nf thp. r onnty commissioners' court p f^ 
Jersey county, which refers to and adopts the report of the viewers 
appomted to view and locate the road for the obstruction of which " 
this suit w as 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 
r'equisite 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,^^ decided at the September term, 
1843, 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 (S!ty it is by law to open and 
repair public roads, proof of these facts furnishes a legal presumption, 
liable to be rebutted, that such 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) FORM AND PROOF OP OFFICIAL ACTS. 101 

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. * * * lo 



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 c ommissioners' 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. ' I'here was evidence tendmg 
m tihiiW ihai the roaa i ndicate d by these records had been opfened, an5 "- 
afterwards obstructed by defendan t 

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 
therecyf 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, sphere was no evidence 
ofany charac ter tending to show that defendant was served with the 
notice required by law, or waived service thereof. 

'I'his 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, i n the absence of such showing, no pre- 
sumptio n will obtain in s upport of thp jurisdiction of the supervisors- 
estate v. Berry, i2 iowa, 58. There being no evidence that the super- 
vi sors ac quired jurisdiction to establish theroad in this case, and no 
presumption"THereof aulliurized by law, thd proceedings afe vo id." 
Alcott V. Achesori, 49 Iowa, 569. 

16 The rest ctf the opuiion 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 ADMINISTKATIVB POWEiR AND ACTION. (Part 1 

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. 
X\]f ^nct mrtinn is errone ous. On tW contrary, the jury should have 
been informed that the evi3ence 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..^' 



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 o ver and th rot igh lands nf the plaintiff, under an order of the 
county court. 

i'he 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 plafntiff 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 13 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. 188. 

See Little t. Denn, 34 N. Y. 452 (1866). 



Ch. 3) FORM AND PROOF OF OFFICIAL ACTS. 103 

ham et al., praying for the establishment of a public road forty feet 
in width in Chilhowi'e 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 
sange 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 foll'^ws:' [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 ADMINISTEATIVB POWEK AND ACTION. (Part 1 

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 v. 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, 44 Ani. Dec. 217; Delaney v. Gault, 30 Pa. 

* Rev. St. 1880, § 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 Tip 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) » FORM AND PROOF OF OFFICIAL ACTS. 105 

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.^° 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 undeterrnined. 

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 xjffice, 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 givipg 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 

10 A portion of the opiuion is omitted. 



106 ADMINISTRATIVE POWEE AND ACTION. (Part 1 

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 pre'sent, 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 siich 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 t/^ue, 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 w&s 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 ior 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) FORM AND PROOF OF OFFICIAL ACTS. 107 

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- 
ment. 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. 783, 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 motion for a new trial 
must be overruled and judgment entered on the verdict. 



ELDRED V. SEXTON. 
(Supreme Court of Ohio, 1831. 5 Ohio, 215.) 

Action of trespass against the treasurer of a school district for tak- 
ing and converting a yoke of oxen, which were seized fbr 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.^" 



McCOY V. CURTICE. 

(Supreme Court of Judicature of New York, 1832. 9 Wend. 17, 24 Am. Dec. 

113.) 

Error from the Orange common pleas. 

McCoy sued Curtice in an action of trover for a watch. The 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, 21 111. 632 (1859), defendant desiring to justify as of- 
ficer must allege that he has been duly elected and has qualified; Rounds 
V. Mansfield, 38 Me. 586 (1854), must prove -that he has qualified. 



108 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 
jproved 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. 573, note "m"; Young v. Commonwealth, 6 
Bin. (Pa.) 88; Fowler v. Bebee, 9 Mass. 331, 6 Am. Dec. 63; People 
V. CoUins, 7 Johns. 549 ; Mclnstry v. Tanner, 9 Johns. 135 ; Reed v. , 
Gillet, 13 Johns. 396 ; Wilcox v. Smith, 5 Wend. 331, 31 Am. Dec. 313 ; 
16 Viner, 113, 14. 

In Rex V. Jones, 3 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. L,aws 1819, p. 198, §§ 20 to 35. 

I am inclined to think, therefore, the parol evidence upon these 
points was admissible. Whether it was sufficient or not is a question 
yirhich 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 For rest of opinion, see a,nte, p. 89. 



Ch. 3) FORM AND PROOF OF OFFICIAL ACTS. 109 

PATTERSON V. MILLER. 
(Court of Appeals of Kentucky, 1859. 2 Mete. 493.) 

Chief Justice Simpson delivered the opinion of the court.^" 

This action was brought by WilHam 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 wete 
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 rea^ 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 eligibihty 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 removal from the county, would be valid, and could be re- 
Hed 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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, 14 Am. Dec. 84. 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 Mete. 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. 329. 

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 coimty. 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) FORM AND PROOF OF OFFICIAL ACTS. HI 

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 elettion 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 inehgible 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 ©rthe 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.^^ 



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 
34th 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. 

2 3 See Courser v. Powers, 34 Vt. 517 (1861). 



112 ADMINISTRATIVE POWER AND ACTION. (Part 1 

Per Curiam.^* * * * j^or 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', might 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 pf 
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.^ ° 



PEOPLE V. HOPSON. 
(Supreme Court of New York, 1845. 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.^' * * * Thg jjgxt 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 

2* Only a portion of the opinion is printed. 

2 5 See State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409 (1871); also an arti- 
cle on De Facto Office by IC. R. Wallacli, in 22 Political Science Quarterly, 
450. 

2 6 Only a portion of the opinion is printed. 



Ch. 3) FORM AND PROOF OF OFFICIAL ACTS. 113 

be a ^ood 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. Riddje 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 
man attempts to exercise dominion over the person or property of an- 
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 
lyascells 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 j>rocess of law. The evidence offered was properly rejected. 

1|: * * 27 



PEOPLE ex rel. WINSTANLEY v. WEBER. 

(Supreme Ctourt of Illinois, 1878. 89 111. 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. ^^ 
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 

27 Accord: Heath v. State, 36 Ala. 273 (1860) ; State v. Dierbersjer, 90 Mo. 
369, 2 S. W. 286 (1886).. See Commonwealtli 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 Mete. (Ky.) 493 (1859), ante, 
p. 109, purchaser from de facto sheriff protected. 

2 8 Only a portion of the opinion is printed. 

Fb.Adm.Law. — 8 



114 ADMINISTRATIVE POWER AND ACTION, (Part 1 

having an interest in such acts are concerned, still, where a part)* 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 himsel'f. Peo- 
ple ex rel. Sullivan v. Weber, 86 111. 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. * * * 29 

In the case of Stephens v. People ex rel., 89 111. 337, we have held 
void the election through which relator claim^ to have acquired the 
supposed office. ***!(; 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. 

28 Accord: Romero v. United States, 24 Ct. CI. 331 (1889). 



Ch. 4) NOTICE, 115 

CHAPTE1R IV 

NOTICE 



SECTION 19.— IN TAXATION 



BELL'S GAP R. CO. v. COMMONWEALTH OE 
PENNSYLVANIA. 

(Supreme Court of United States, 1890. 134 U. S. 232, 10 Sup. Ct. 533, 

33 L. Ed. 892.) 

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 rrjake 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, i'f 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, .f 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 ADMINISTEATIVE POWER AND ACTION. (Part 1 

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: "(3) T he report of the company's_ ^ 
t reasurer was made under protest, and does not constitute an assess- 
men t, 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 n ominal or face value, which varies from the marke t 
v^^Iup nn arrnnnt r.t ti^P differing- ratcs of interest, etc., is illegal, aitid 
the said tax cannot be lawfully deducted by the company's treasurer 

"^irom tne mterest payable to the holders of saia loans, and ttie common-"* 
wealth's demands contravene section 1 of the 'fourteenth amendment to~ 



" the Con.stitnhnn nt th° [ 'r^^-*^^ ,'-:tcitpg fr)i- tli o fnllnwing rea.sons." 

Among the reasons then assigned are (1) that the nominal value of 
the bonds is not their real value ; (3) t hat the owhers of the bonds have 

• n o notice, and no opportunity of beings heard ; (3) th at the company i s 
taxed for property it does not own ; (4) thatthe deduction of the tax 
from the interes t payable to the bondholders is takmg their prope rty 
without que process ot law, and denies to them the equal protection~of 
the laws, since all other personal property in the state is taxed at it s 
actual value, and upon notice to the owners. The seventh objection is 

'as follows: " (7) The tax is void, as impairing the company's obhg a- 
tion to its c xsihtoxs.'' ^ * * 

As to want of notice to the owners of the bonds: What notice 
could they have which the law d oes not give them f l^hev know tha T" 
their bond s are to be assessed at their tace value, and that a tax oF ~ 
three mills on the dollar of that value will be imposed, and that the y~ 

, will only be required to pay this tax when and as they rec eive the in- 
tereit i if the state may assess the tax upon the face value ot tne 
bonds, notice m pais is n ot necessary . We think that there is notfflTTg- 
in this objection which shows any infracti on ot tne lederal Constit CT^ 
tion. it is urged that it is a ta king ot the bondholder's p roperty witlT- 
out du e process oi law. We must .con fess that we cannot see it inlhis 
light." 'i'he process of taxation does not require the same kind of no- 
lice as is required m a suit at law, or even in proceedings for taking ~ 
jrivate' property under the power ot eminent domain. It invdTves'iig ' 



violation of due process of law when it is executed according to cus- 



tomary forms and established usages, or in sub ordination to the prin- 
ciples which underiie them. W e see nothing in the p l ' ucebs uf UAdLiu i » - 



complained of which is obnoxious to constitutional objection on this 
'score. Stockholders in the national banks are taxed in this -vra y^and" 
the method has been sustained by the express decision of this court. 
Bank v. Com., 9 Wall. 353, 19 I,. Ed. 701. * * * 



Ch. 4) NOTICE. 117 



HAGAR V. RECLAMATION DIST. NO. 108. 

(Supreme Court of United States, 1884. Ill U. S. 701, 4 Sup. Ct. 663, 28 

L. Ed. 569.) 

Appeals from the United States Circuit Court for the District of 
CaHfornia. 

Field, J.^ 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 t hrPP rnmmigginnprc! whn arf j nTntlv to"" 

vie w and assess upon each acre to be reclaimed or benefited a tax pro- 
portionate to the wh6le expense, and to the benefits which will result 

■ ^from the works; whi'^h tav i<; tn f»p rnllprt- prl and paid into the county 
treasury or treasuries, as the case may be, and placed to the credit of 
the district, to Pe paia o ut t or the work ot reclamation, 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 
m3 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 it further assessme nts be required for the p rotection, 
tmintenance, ana repair oi the works, the supervisors may order ad- 
ditional assessments upon p resentation by the trustees of a statement of 

__ tne wo rk to be done, and an estimate of its cost, such assessments to 
be levied, and, it delinquent, collected, in the same manner as the orig- 
i nal assessm ent! The commissioners are required to make a list of the 



' Only a portion of the opinion is printed. 



118 ADMINISTRATIVE POWBK AND ACTION. (Part 1 

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 t'o 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 arnount 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 u pon the lands of the appellant are liens upon them, and for 
their sale to satisfv the charges. One of the suits is to entorce 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 
-Tjfl whic h they were levied, and ordered that the lands be sold for the 
' p ayment of the amounts, with interest and costs. From these decrees 
" the appeals are taken. _. * * * 

The appellant contends that this fundamental principle^ was violated 
1^ the assessment of his property, inasmuch as it was made without 

nuLiue to him, or withuuL hiM beiiij:? affo r ded any opp ortunity to~tiE~ 

"~heard respecting it; the law authorizing it containing nn prQvisl Qii- 

— far"5TTch notice or hearing. His contention is that notice and oppor- 

tunity to b e heard are essenti al to render any proc eeding due process 

ot law Which may lead to the deprivation ot hte, liberty, or property. 

8 I. e., that there can be no proceeding agamst 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) NOTICE. 119 

Undoubtedly wIiptjp lifp anH lihprty arp I'nvolved. due process requires 
that there be a^rpgnbr course of-uidi cial proceedings, which imply 
•that'T He'party t o be affected shall have notice and an opportu nity to 
'2^_tl^gid : "j:', 3l ='''j ^vhere title & F-posg£ssiQn-X>f_BLrQEe rty is involved. 

Tutwhere the taking of property is in the enforcement of a tax, the 
proceeding is n^ecessarily 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 tax,ing 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. 

^f the differ ent kinds of tax es which the state may impnc^p^ thprp 
is a~vast number ot whicn, trom their nature, no notice can be given 

^o the taxpaye r, n or would notice be of any possible adva ntage to him, 

.such as poll taxeSr license taxes (■ n r.f rlpppjarlpnt- npn n <lif f ni»n l ii l I r K 

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 ther e ■ 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 b e a fixe3"sum per head, or on articles a nxed sum 
"^et yafd Of bUshel or gallon, there is nothing the owner can do which 
can attect the amount to be collected from him. So, if a person vvi 



120 ADMINISTRATIVE POWER AND ACTION. L^3.rt 1 

a license to do business of a particular kind, or at a particu lar 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 cas es for noiice or 

_ hearing ] S o, also, if taxes are imposed in the shape ot licenses for ^ 
privileges, such as those on foreign corporations for doing business 
m the state, or on domestic corporations for franchises, if the partie s 
desire the privilege thev have onlv 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^ 
tolts value, to be as certained by assessors appointed for, that purpose. 
upon such evidence as they may obtain, a different principle comes in. 



The otticers in estimating the value act judicially, and in most oi tne 



states provisi on is made" tor the correction ot e rrors committed by — 
tnem, tfarougn boards of revision or equalization, sitting at designatecT 



periods provided by law, to hear complaints respecting the justice of 
■the assp g°mf"^'° — Th e law, in prescribing the time when such com- 
plaints w ill be h eard, gives all the notice required, and the proceeding 
■ bv which th e valuation is determined, though i t may be followed, if 
Jhetax be~not paid, by a sale of the delinquent's property, is due 
process o t Inw,* ~~~~~' 

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 meanifig of the terms "due process of 
law," and that it would be difficult to give a definition that would be 

* 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 (1678); Oooley, Tax'n, 2G6; 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 Oity, 24 N. J. Law, 662, 660 
(1835); State v. Morristown, 34 N. J. Law, 445 (1871); Griffin v. Mixon, 
38 Miss. 43?, 438 (1860), note to official report of case. 

I 



Ch. 4) NOTICE. 121 

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, 34 
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 ii 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 1|e 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 n6te, as to the necessity of notice and of ani 
opportunity of being heard, are all satisfied where a hearing in court/ 
is thus allowed.** * * * j 

severing v. Foote, 65 N. Y. 269 (1S75); Stuart v. Palmer, 74 N. Y. 183 
30 Am. Rep. 289 (1878); Cooley, Tax'n, 265, 266, 298; Thomas v. Gain, 35 
Mich. 155, 164, 24 Am. Rep. 535 (1876); Jordan y. Hyatt, 3 Barb. (N. Y.) 
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, 24 
N. J. Law, 662, 660 (1855) ; State v. Newark, 31 N. J. Law, 363 (1865); 
State V. Trenton, 36 N. J. Law, 499, 504 (1873); State v. Elizabeth City, 37 
N. J. Law, 357 (1875); State v. Plainfleld, 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. B. Co. (C. C.) 8 Sawy. 
238, 13 Fed. 722 (1882) ; County of Santa aara v. Same (C. O.) 9 Savvy. 
165, 18 Fed. 385 (1883); Darling v. Gunn, 50 III. 4^ (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. 3G9 (1896), note to official report of case. 

The leading case on the requirement of notice is Stuart v. Palmer, 74 N. 



122 ADMINISTHATIVE POWER AND ACTION. (Part 1 



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 tn restrain the rnllertinn nf taxf s. TtiP rnn r t renHered juds ; '- 
ment for defendants , which, on appeal, was affirmed by the Supreme 
_CourLof_the-state. 133 Ind. 625, 33 N. E. 432. 

Mr. Justice Brewbr deUvered the opinion of the court.° * * * 

It is contended specifically that the act fails of due process of law 
respectmg the assessment, in that it does not require notice by the' 
state board at any time before the assessments are made final; an5~ 
sev eral authorities are cited in support of the proposition that it is~ 
essential to the validity of any proceeding by which the pr operty 
of t he individual is taken that notice must be given at some time and 
in some form before the final adjudication , i jut the difficulty w ith 
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 
"ic Qiittiripritjri_ta-y prnrppHingc; • personal notice is Unnecessary . 

In"SFate 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 th||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 cornpanies 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. 441^43. 

Notice before the assessment is not necessary, if there is an opportunity 
to contest the assessment before the board of review. Pelsenthal y. John- 
son, 104 111. 21 (1«82). 

See, also, Corcoran v. Board of Aldermen of Cambridge, 109 Mass. 5, 85 
N. E. 155, 18 L. R. A. (N. S.) 187 (1908) : "If the right to a hearin-g 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) NOTICE. I 123 

by the Supreme Court of the state on the act^ — a construction which is 
conclusive upon this court — is t hat 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 adiolinmient of the board, and that no notice was~ 
given of such valuation in time to take any steps for the correctio n' 
ot errors therein. Tf 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 coUcui with 
that view", ^^hearing before judgment, with full opportunity to present 

. all the evidence~and the argmnpntg wliirVi thp party HppnT; important, 

is all that can be ad j 1 1 H gpH vifaJ R ehearings, and new trials, are not es- 
sential to due process of l aw, either in judicial or admir^istrative pro- 
■ - cccdin ) :; a. Que h earing. Tt 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 rpViparing nr motions for a new trial. 
y\[i\l any one seriously contend that a judgment thus entered is entered 
in de fiance of the requirements of due process of law, and that a party, 
hating been fully heard once upon the merits of his case, is deprived 
of the r nnstitiitinnal prntertinn Vipransp he ig nnt hpar d a second tini e?_ 
Equally fallacious is the contention that because to the ordinary 
taxpayer there is allowed not merely one hearing before the county 
oiificials, 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 railitoad 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 one 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 $o,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 ADMINISTRATIVE POWER AND ACTION. (Part L 

STATE RAILROAD TAX CASES. 

(Supreme Court of United States, 1875. 92 U. S. 575, 23 L. Ed. 663.) 

Miller, JJ * * * 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 wilj 
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 ma'de. 
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, Aey 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) NOTICE. 125 

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. * * * s 



KUNTZ V. SUMPTION. 
(Supreme Court of Indiana, 1889. 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655.1 

Appeal from circuit court, Randolph county. 

EocLioTT, 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 

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 hoard 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 ADMINISTEATIVE.POWBE AND ACTION. (Part 1 

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- 
poenaed 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. 795 (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 fiilly as language can do, the doc- 
trine of former decisions, that the legislature has ample authority to 
prescribe what the notice shall be. Johnson y. 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; Hobbsv. 
Board, 103 Ind. 575, 3 N. E. 363. 

We affirm, too, that whether the notice is by publication or by per- 
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 

8 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. Osbom, 189 U. S. 383, 391, 23 Sup. Ot. 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 ob,1ected 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 166, note. 



Ch. 4) NOTICE. 127 

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 afifording 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 our 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. 7 ; 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 estabHshed 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., 23 111. 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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, 30 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. KHne, 30 Pa. 227 ; Macklot 
V. City, 17 Iowa, 379 ; Deane v. Todd, 22 Mo. 90 ; Mclntyre 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) NOTICE. 129 

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 vifho 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. 263, 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 
Fb.Adm.Law. — & 



130 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 ly-ef erred 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; bt;t a final decision must be based on a notice 
provided for by law. 

Judgment reversed, with instructions to overrule the demurrer to 
the complaint.^" 



RULING V. EHRICH. 
(Supreme Court of Illinois, 1899. 183 111. 315, 55 N. E. 636.) 

Error to circuit court, Kankakee county. 

Suit by Truman' Hulin g against F . C. Ehrich . Bill dismissed, and 
c omplainant bring s f ^yrnr T?pvprgprl 

CaeTwrighT, C. J. Truman Huling, plaintiff iti 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 i ncreased tlnis o=V^ccmpni- trnm .yfi^fsQ?; tr. -lt-| 0.59,') without 
any noti t'p t p Huling, inr l ivi th nuf hir knm i 'ledgp nr rr>nt;pni-^ and made. 
t his record of their action: "T he 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, o f 
_^mj 95. a tax of JRI.IOO 8.^ wac^ IpvjpH 

Hulin g first learned ni tVip inrrpatp whp n the rnllector attempted to 
f^nl lprt th p tav^ and hp thp n tendered $581.33. the propnrtinnate amount 
of the tax nn thp assessment as first made by the assessor, and filed his 

10 Contra: State v. New Lindell Hotel Co., 9 Mo. App. 450 (1881). 



Ch. 4) NOTICE. 131 

bill again si- "P. C Vhr'^rh^ tVi<' rn]Unfn,^^ defendant in error, to enjoin 
the colle rtjnn ni ,^51 9 ^0^ t he portion of the tax levied on tne increas e 
.of ^$5,000 made by the town boar d. 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 j^enied that the ' 
board of review acted with out notice, and averred that the valuatio n 
was not ineciuitali Le^ Un a hearing, the facts allegerl in the hill were 
proved, but the rniirt di smissed the hill, at complainant's cos t, for 
ai3nt >j>f equity . 

The township board of review was only authorized to act and raise 
complainant's assessment after jyiviUij' I'lOliCtf in wriLing to him or nis 
_a^en t. 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 op portunity tn show the facts, and the board had no power . 
without notic e t o him, to increase such assessment . He had no knowl- 
edge of the increase until the collector attempted to collect the tax. 
The board ha d no jurisdiction to reassess his prope rty, and in such case 
equity will restrain the col lection ot tne illegal tax on the ground that 
the assessment is void as to the increase . Cleghorn v. Postlewaite, 43 
111. 428; Darling v. Gunn, 50 ill. 424"; McConkey v. Smith, 73 111. 
313 ; Bank v. Cook, 77 111. 622 ; Camp v. Simpson, 118 111. 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 tQ 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 ADMINISTEATIVE POWEE AND ACTION. (Part 1 

SECTION 20.— IN THE EXERCISE OF THE POLICE POWER 



WAYE V. THOMPSON. 

(Supreme Court of Judicature, Queen's Bench Division, 1S85. L. R. 15 

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." 

Upon the hearing ^^ the following facts were proved, viz.: That the 
nieat was in the possession of and exposed for sale by the respondent, 
and was intended for the use of man ; 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 justi'ce, 
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, fruit, 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 ofiicer 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 s^me, 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 shdw cause why the penalty under 
section 117 should not be inflicted. 



Ch. 4) NOTICE. 133 

veterinary surgeon, which inspection was accordingly made b> 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 had 
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 meat 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.^2 

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 summons 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 meat. 

The cases of White v. Redfern, 5 Q. B. D. 15, and Vintner v. Hind, 
10 Q. B. D. 63, dp not assist us. White v. Redfern decides that a 

13 The arguments of counsel are omitted. 



134 ADMINISTEATIVE POWER AND ACTION. (Part 1 

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 summoned 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.^* 



CITY OF PHIIvADELPHIA v. SCOTT. 

'(Supreme Court of Pennsylvania, 3 876. 81 Pa. 80, 22 Am. Rep. 738.) 

AgnEw, C. J.^° * * * 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, * * * ^nd in case such owner 
or owners shall neglect or refuse to cause such repairs to be made with- 
in the time aforesaid * * * jt 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 sa!d 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." 

I 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 

■ 1* See Cooper v. Wandswortla Board of Works, 14 C. B. (N. S.) ISO (1863), 
post, p. 252. 

See, also, Vestry of St. John's v. Hutton, [1897] 1 Q. B. 210. 

10 Only a portion of the opinion of Chief Justice Agnew is printed. 



Ch. 4) NOTICE. 135 



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 him. 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,-1:45.66 
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 
met 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 have 
gone on j^fferent grounds. An act which subjects a man to a penalty 
of over ^[^fl?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, 3 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 
o r mode in which the duty of the citizen shall be determined before 
he can be vi sited with a penalty for nonperformahce""5t~tb&jm£ged 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 afifirmed. 



/ 



136 ADMINISTRATIVE POWER AND ACTION. (Part 1 



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.) 

Beasi,ey, C. J." * * * 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 health 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 afl^ect 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, lit is not within the competence of 

18 Only" a part of the opinion of Beasley, O. J., is printed. 



Ch. 4) NOTICE. 137 

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 \2Lwf Whenever the act of such a judicial body comes in question, 
its jurisaiction over the particular case adjudged is a mere matter in 
pais, and is open to inquiry by evidence. * * * it 



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. M), "took and filed among its records what (the same 

IT See Weil v. Ricord. 24 N. J. Eq. 169 (1861). 



138 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 ah 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.^' * * * 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) NOTICE. 139 

him before any preliminary proceedings had been taken. He refuses to 
htigate before the board the question whether his pursuit is dangerous 
to the pubhc 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 him. 



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. Kep. 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 pubhc 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) afifirming the proceedings of the board, relator 
appeals. Affirmed. 

The other facts fully appear in the following statement by Eari,, 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 con.^ laint having been 
made to the board of health that these dams created nuisances, the 
members 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 ADMINISTRATIVE POWBK AND ACTION. (Part 1 

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 members 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.^" (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, 
rul^s, 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) NOTICE. 141 

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 pubHc 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 Procfdure^" is not appli- 
cable to such a casCj 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 made 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, tht 
party proceeded against must have a hearing, not as matter of fayorl 
but as matter of right ; and the right to a hearing must be found in 
the acts. Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 339. 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 

2 Authorizing tlie administration of oaths by certain officials. 



142 ADMINISTRATIVE POWER AND ACTION. _ (Part 1 

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 
prsesumuntur legitime facta donee 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,^'^ 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 723, in a 
note, the learned author, speaking of boards of health, says : "Though 

21 See Galden v. Department of Health, 21 App..Div. 420, 47 N. Y. Supp. 
623 (1897). 



Ch. 4) NOTICE. 143 

they cannot be yested 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 743, 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 must 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 I^w 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 rernoval 
by any person supposed to be aggrieved, or even by the city itself. 
This would place every hou-se, 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 o'f 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 



14:4 ADMINISTKATIVE POWER AND ACTION. (Part 1 

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. 33 ; Rogers v. Barker, 31 fearb. 
447; 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. 

Th^ 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, 103 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.^^ 

2 2 Finch, J., in Board of Health of City of Tonkers v. Copcutt, 140 N. T. 
12, 35 N. B. 443, 23 L. R. A. 486 (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) ; Hartm&n v. Wilmington, 1 Marv. (Del.) 215,41 
Atl. 74 (1894). 

After an order has been made, notice must be given to the person afCected 



Ch. 4) NOTICE. 145 

HEALTH DEPARTMENT OF CITY OF NEW YORK v. 
RECTOR, ETC., OF TRINITY CHURCH. 

(Court of Appeals of New York, 1895. 145 N. X. 32, 39 N. E. 833, 27 L. E. 
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 again st 
the Rect or, Churchwardens, and Vestrymen of Trinity Church, to re- 
coyer a penalty for failure to supply the floors of a tene ment 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. 610) reyersing a judgment for plaintiff, the latter appeals. Re- 
versed. 

The cause of action is founded upon section 663 of the consolida- 
tion act (Laws 1883, 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 converted, * * * shall 
Viavp Crntnr] n r other Water furnished in sufficient quantity at one or 
more places on each floor, occupied or intended to be occupied by one 
or more, familie s : and all tenement houses shall be furni shed with a 
like su pply pf watpr hy thp nwt^p rs thereof whenever they shall be ai- 
rected so to do by t^^ v<n^rH r.f ViPaUJi, But a failure in the general 
supply of water by the citv authorities shall not be construed to be a 
failure _o n 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 I/egislation Regarding Public 
Health In' New York and Massachusetts (Chicago, 1909) pp. 94r-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 [1800]) that the 
power to make regulations for the removal of nuisances did not include the 
j)ower 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- 
Fe.Adu.Law. — 10 



146 ADMINISTRATIVE POWEE AND ACTION. (Part 1 

applianppg tn rpr-pnrp nnrl rl.vtriKiitf eiif-}q w ater are placcd 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 an d 
eighiy- nine." Yhe rest oil 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, t he plaintiff _ 
caused to be served on the age nt of the defendant a notice requiring the_ 

_def^ndant, m contormit y with the provisions of the Sanitary Co de, 
tn aH-pr^ rppair '-jpansp, ^"^1 improyf the premises above mentioned, 
and directing that suitable "appliances to receive and distribute a su p- 

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 (Olaarter 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 18G6 and 1867 establishing the metropolitan board of health 
brought the whole subject of quasi judicial powers prominently before the 
courts.t Section 14 of the law of 1866 (I^aws 3866, c. 74) nspeeially 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, alsd. Golden v. 11. 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 

t Laws N. Y. 1866, c. 74; Laws 1866, c. 686; Laws 1867, c. 700; Laws 1867. 
c. 956. In the cases tirought 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. 661 [1868]). (2) That the power to make regulations 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.] 385 [1866] ; Schuster v. Met. Bd., 49 Barb. [N. Y.] 450 [1867]). It is 
to be noted in this connection that, while 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 vvas 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. [N. 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. ?. 
Heister). 



Ch. 4) NOTICE. 147 

ply of water for rinmpstir nsp Kp pi-nyifi frl on tlip top flnnr nf No. fi9 : 
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." 
^nd th edefendant was required to comply with the requirements with- 
ixL fiye'da'vs jCiurti t he receip t of the tio t ice, and it was also stated m t l ie 
^ notice that any application for a nec e ssary extension of time, o r for the" 

suspension of any part of the requirements contained in the writteri ~ 

_ notice, should be made to the health department, at the time and p lace 

- flP'iJgnaf^d in thp notirp, ' — 

This action was brought against defendant as owner of houses Nos. 
77 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 wkether 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 subposnas, compel witnesses, administer oaths, with the same pow- 
ers a.s 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, 595, 12 N. Y. Supp. 561 [18911 ; People v. Wood, G2 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,$ the opposite view was taken — that no- 
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, nor without the appearance of the parties in such a court. 'A 
hearing was not necessai-y 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. Cohoes N. Y. Dept. v. Trinity Church, 145 N. Y. 82, 39 N. B. 
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. BufCalo, 19 App. Div. 1, 46 N. Y. Supp. 204 (1897) ; also Gushing v. 
Bd. H. Buffalo< 13 N. Y. St. Rep. 783 (1887)." 

t 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 qur 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 ouestion who caused the trouble." Bd. H. v. Cop- 
cutt, 140 N. Y. 12, 35 N. E. 443, 23 L. R. A. 485 (1893). 



148 ADMINISTKATIVB POWER AND ACTION. (Part 1 

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 neter been altered, wath 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 
structurss ; 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).'^ * * * As suming that 
Jhis act is a proper exercise of the nnwer , in its general 'features, ^^e. 
do no t think that it can be regarde d as invali d beca use of the fact tha t 
it wilFcost money to comply with the order ot the board, tor which 
the owner is to receive no compensation^ or because the board is en- 
ti tled to make the order , under the provisions o f the act, without no- 
tice to and a hearing of <-)-|p Hptpririani-, ft.s to the latter objection, IF 
may be sa id 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 validi ty of legislation upon that subject that he shal l 
be heard beiore he is bound t o comply with the direction of the L,egis- 
. lature. P eople v. Jjoard of Health, 140 N. Y. 1, 6, 35 N. E.~3^ir^ 
U R. A. 481, 37 Am. St. Rep. 533. The T.p.gi<;1a ,ture has power, and 

.25 Only a portion of this case Is printed. 



Ch. 4) NOTICE. ' 149 

has exerci sed it in m imi-lpst; instanrf;;, t o enact general laws upon 
-"the-^blecL oi the public health or safety without providing that tne" 
parties who are to be affected by those laws shall first be heard before 
. jhey snail 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 cannOtTUnder thfe act, be punished in any way, nor can 
any pen alty be recovered from him for an alleged noncompliance with 
any o f its provisions, or with any order of the board of health, without 
a trial The punishment or penalties pravide.d for in section 665 can- 
not be enforced without a trial under due process of law, and upon 
such tri al he has an opportunity to show whatever facts would consti- 
J:ute a defense to the charge ; to show ^in other words, that he did, not 
vi olate the statute, or thp nrder o f tliP V.narH^ nr- thnt. tha st atute itself 
or the order was unreasnnnhle and illei^al .^^ 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. Cjty of Salem v. Eastern R. Co., 
98 Mass. 431, 447, 96 Am. Dec. 650. The mere fact, ho wever, that 
the law cannot be enforced without causing expense to the cilizell wlicr 
comes within its provisions, furni shes no constitutional obstacle to 

— BUch (irtforceitient, even witnout previous n otice to and a hearing o ! 

"jE Iie d&ieil. W hat is the pros nfily. ot a hearing, g"ri wVif^f would 

.be its purpose? TTis prope rty is not taken witho ut due process of law. 

withurariv "^onstitutional spnse, whfr thp pninrrpr^ m mpliance witTi 

~ certaitl f>rovision fi nf t*^" ctritiitg rriajL Xgsult in some reasona ble ex- 

28 The words italicized are not found in the report of the case in the North- 
eastern Reporter. 



150 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 bv the plaintiff'in digging a canal for the purpose of 
abating a nuisance in the millpnnH ii-| ^^alpm 

Wells, J.^* * * * 3. The proceedings of the board of health 

are said to tie defective, because taken Without previous notice to tne" 

defendants and opportunitv to be hearcT 'I' he evide nce tended to 

show tli at the defendants were notified of the pendencv n't prnceedip p-<;, 

-a n^ot the action taken bv the board of health from time to time: 

■ but there was no suc h notice beforeha nd as would give the defendants 

an opportunity to appear and be h eard upon the contemplated action 

of the board, and tliere was no hearing upon anv 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, 23 Am. Dec. 421 ; Commonwealth v. Tewksbury, 11 Mete. 
55 ; Commonwealth v. Alger, 7 Cush. 53, 85 ; Belcher v. Farrar, 8 Allen, 
325. The authority of the j^"^''''^ "f Vi^^ltVi in rpgp^ft tr. p^rtif-ni^r nui- 

sances stands upon similar p-rnund Tlipir q<-ti^n is infgnrlpd to be 

prompt and buiuiluiy" They are clothed with extraordinary powers for 

"the protection ot the community from noxious inflnenres affprting lifp' 

and healtn, and it is important that their proceedings should be em - 

2 7 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 vrhile 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." 

2 8 Only a portion of the opinion is printed. 



Ch.4) ^ NOTICE. '' 151 

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 thp gp prnrp^rlingg -^r^ ^n'^h tb^<- i*' '« rl ee.med to be 

most f or the general ^c\c\A that snrVi nntiVp gVinnlrl not he essential tO 

the rig h t nf thp hr.arri nf i-iPiitVi f^ nrf ir.-r <-]t» pnH'" gaf^i-y.^ Delay_ 
for the purpose of giving notice, involving the necessity either of pub- 
l ic notice or ol mquiry to ascertain who are the parties whose interests 
_ will be affected, and further delay for such hearings as the parties 
may thinE necessary for the protection of their interests, might defeat 
ail beneficial results from an attempt to exercise the powers conterred 
upon boards of health 'Thprp arp many rases in which powers nf 
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 demohshed to prevent the spreading of fires (Gen. St. 
c. 24, § 4; Taylor v. Plymouth, 8 Mete. 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 interest s 
at' stake, justify the omission of notice to the inaividuaT When ttie 
statn ^p anthnriyin g ^ the p r oceedings requires no notice, their validity 
without notice is not to be determined by the apparent propriety o f 
givinf y notice in the particular case, but by considerations affecting 
^the yyhole rang-p nf rases to which the statute was intended to ap- 
j>1 y , * * * 

6. The rnost 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 defendlants, 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- 
fendahts 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 ADMINISTEATIVB POWER AND -ACTION. (Part 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 o f n atural justice tha t 
every m an h a ve an opportunity to be heard in a court of law, upon 
"ev ery question involving his right s or interests, before he is affected Bv 
•or<^_jiirlifioi rippici^^r, q\ the QuestJo n." 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 n9tice 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 1,. 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) NOTICE. 153 

res, and however conclusive it may be held for the protection of those 
who act,''" 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 L,essee 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. 331. 

We think that these principles apply to the proceerlinp-s nf a board 
of health . Their determination of questions of discretion and jud s^- 
ment in th e discharge of their duties is undo ubtedly in the nature of 
a lUdicial decision; and witbih the, scope ot the power conterred, and 
tor the purposes for which the determination is required to be made, it 
jg rnnrlnsi^ic It is not to be imijeached or set aside for error or mis- 
take of judgment, nor to be reviewed in the light of new or additional - 
~^cts . The officer or board to whom such determination is confided, 
and all tho se employea to carry it mto effect, or who mav have occa- 
sion to act upo n it, are protectedby it, and may safelv relv npnn its 
validUy for their defense. I t is in this sense that such adjudications 
are often said to be conclusive against all the world ; and they are so , 
so tar as the res is concerned. The statute and the public e xigency are 
sufficient to justify the omission of previous notice, hearing and ap- 
pekl. iiut this exigency is met and satisfied by the removal of the nui- 
sance. As a matter of police regulation, the proceedings and the au - 
thority o f thp hnarri enrl 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, tounded 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 con dnsivp. tn estahli sh the facts upon which the claim 

.From, the foregoin g considerations we are led to construe the stat- 
ut es in question as conferring »0 judicial poWer upon the buaid (Ji • 
"Health b pyn^rl tViat wViirh is ahsr>1iii-ely essential If) tht^ peifuuiiaiice-of- 
their a.d ^-\]\ri<:trai-hTe- fiinrtinns fnr f he. accomplishment of the end con- 
templated, tn wit, thp summary abatement nf nnisanrps nf the class 

• 
2 8 "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 compensatioii 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. B. 100, 10 h. E. A. 116, 
23 Am. St. Rep. 850 (1891). 



154 ADMINISTRATIVE POWER AND ACTION. (Part 1 

indicate d. TlVip ^iVis fnce of any provision for previous notice a nd 
hearing, the summary execution of the order without means of redres s 
or rehef by appeal or otherwise against error and injustice, woiil ^ 
make the proceedings violate the fundamental principles of justice u ni- 
versally re cognized, if they sh ould be held to estabhsh, by an unalfef^ 

~ ^able and absolutely con clusive decree, tne personal liability of the 
parties wno might be named by the board of health as having caused 
or permitted the nuisance. We cannot yield tn a rnnstr iirtinn whjrh 

~Tyuuld lead to sucti resulTs. Bv the narrower construction which we 

. have 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 opp>ortunity 

of de fense which is essential to the due administration oi justice in 

Whatever form of judj'^ifl] pmr-^prling it may hp iinr|prtRtr^" ^° 



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 Erank 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 fcther 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 

so See Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 110, 23 
Am. St. Rep. a50 (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, 80 Me. 206, 13 Atl. 882 (1888). 



Ch. 4) NOTICE. 155 

away by a rise of water. 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 sawd-ust 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. Se.cond. 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, having 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 a 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 Tihis order of the commissioners so interferes with the use of the 
property of the defendants as to seriously damage, impair, or injure 



156 ADMINISTRATIVE POWER AND ACTION. . (Part 1 

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 have 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 
circumstances 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 (3) 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 q.11, 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.'^ 
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 y. Farrar, 
8 Allen (Mass.) 325 (1864); Taunton v. Taylor,* 116 Mass. 254 (1874). 



Ch. 4) NOTICE. 157 

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, 13 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- 
der a 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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, §§ 2, .6; St. 1867, p. 741, c. 344; Pub. St. 1882, c. 91, § 
4. See, also, 3 Province I.aws, 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 uijder 
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 imder 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) NOTICE. 159 

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 corffpensation 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. 
523, 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 over ruled. ^^ 

8 2 "It is urged that there was denial of due process of law in failing to ac- 
cord plaintiff in error a hearing before the boaini af 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'plaintifC in error does not appear to have asked for a hear- 



IGO ADMINISTRATIVE POWER AND ACTION. (Part 1 

SECTION 9.1 _TM PT?vntrT]N,jr, t TrvM.c^fi'.c; 



COMMONWEALTH v. KINSLEY. 
(Supreme Judicial Court of Massachusetts, 1882. 133 Mass. 578.) 

Field, J. TTip Hp.fpnrf ant was c omplained of for unlawfully keep - 
ing , in a building- occupierl hv him in Millhnry^ a table' for t he pur- 
pose oi playing at pnni for liirp gain gnH rpw^'''"'; witlinnt gntlinTJ1-y 
or lic ense therefor . 

By~Gen. St. c. 88, §§ &9-73, 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 authorit y 
gr antmg it" ; a nd all persons are prohibited, under a penalty, fro m 
it^ping ^ such a t ab^p wittmnt i liVonm - 

A license had been duly p-ranted to flip defpnrlantj and it had been 

fr^TnXi-pr\ h y tVlP l^l^ r tm^n fv . 'ith ' ^Ut giving h'"^ nniinn ni tVinir intpn 

_ti on to revoke itii b ut thev had given the town clerk a certificate of 
" the vote revoking^he license, and he had informed the defendant of its 
con tents, and thereafterwards the defendant "allowed a pool table to 
hp iisprlffv Miirp npan bis p rpmisps." T fae defendant contends that 

~ELis revocat ion was inoperative, because it was made without giving 
' ~him an opportunity to be heard, and that, if the statutes purport to a u- 
thorize a revocation without notice, they are in this respect unc onsti- 

" tutional an d 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 
Hcense. A licensee takes his license subject to such conditions as the 
Legisla ture sees fit to impose, and one of the statutory conditions o f 
this license was that it mi^ht be revoked by the selectmen at their 



pleasu re/ Such a license is not a contract, and a revocation of it do es 
not deprive the d efendant nf any p rnpprty immunity or privilege wi th- 
in the me aning oi these words in Declaration of Rights, art. 12. Com- 
*" monwealth v. Ulackington, 24 Pick. 353 ; Calder v. Kurby, 5 Gray, 597; 
/Commonwealth v. Colton, 8 Gray, 488 ; Commonwealth v. Brennan, 103 ' 
JMass. 70 ; Commonwealth v. Adams, 109 Mass. 344 ; Commonwealth v. 
Ipredeflcks, 119 Mass. 199. 

ing, and assuming that tlie 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) NOTICE. 161 

It is immaterial in what manner the defendant obtained knowledge 
that his license had hee.n revoked. Wi thout considering whether the 
defendant would be liable to the forfeiture impos ed by Gen. St. c. 88, § 
70, if he had not had " either notice or knowledge that his license had 
been "revoked, after such k nnw1'"'V° ^^ ^»^r»iilH ripnrly he- Ijp hlp. St. 
1876, c. 147,'* has no application t" ^^^"^ '''^"^ 

Exceptions overruled. 



MARTIN V. STATE. 

(Supreme Court of Nebraska, 1888. 23 Neb. 371, 36 N. W. 554.) 

Error to district court, Lancaster county. 
^ jGeorge Martin was indicted for selling liquors without a. license- 
Case tried upon a stipulation of facts. Judgment lor the State, and 
defend ant brings error. 

KEESS, (J. J Plaintiff in error was convicted of the crime of selling 
intoxicating liquors in violation of law, not having a license there- 

TOT" ^ M* ^ 

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, ^t' a subsequent meeting of the 
council, w e presume, although the date is not given, the resolution re- 
voking the license was adopted without any notice hav ing been given 
to plamtirr m ert'df Qlf tiiie contemplated action ot tne counci l. TTie 
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 may, 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 

»s 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 cleuk 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

I by the mayor and council for any purpose mentioned in this section 
shall be revoked by the mayor and council upon the conviction bf the 
I 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- 
I tion be finally annulled, revoked, or reversed." , 

Jtjsjnade the duty of the mavor and cnum -il tn rpvnVp tVip lirensp 
' 'upon conv ict ion of the licensee of any violation of anv law, ordinanc e. 
or regulation pertaining to the sal e o f" liquors. . The language of the 
.statute is imperativ e. 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 stat e may not take away at pleasure. Pleuler v. State, 
•11 JNIeb. 6*7, iU IN. W. 481. Sach jicenses are not contracts betwe en 
the state or municipalit y ig^nin g- them and the Hcpnspp , but are mere 
^temporary permits to do what otherwise would be unlawful Barrie 
~v. iSchultz, 34 JSJ. Y. 657. They are subject to the direction of the 
government, which may revoke them as it deems fit, and mav be abro~ 
gated by the adoption of a municipal ordinance prohibiti ng the sale o f 
Jiquors . Uolumbus City v. Cutcomp, 61 Iowa, 673, 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 brin g it within th e provision of the fnnstitiitinn ahpvp 
quoted^ 

^ut this does not entirely dispose of the question here presented : 
for7if notice to tne Ucensee was necessary^to give the municipal au - 
thorities jurisdiction, the acts of the council might still be void for ■ 
want ot authority or power to act. A number of cases are c ited by 
plain tiff in error, holding that notice in the particular cases then undeF ~ 
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) NOTICE. 163 

court, without any notice, suspended the same until the next term of 
court. During this period Plummer assisted Shepherd in retaiUng 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 plac^e 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 hearing 
wag had, reported to the council that in tHeir opinion it was inexpe- 
dient to take further action in the matter. 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 bein^ 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 Hcensee and reasonable opportunity to 
be heard by them, or by a committee of their number, may declare 
the hcense 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.^* 

a The question in this case was whether notice of the revocation was re- 
quired to be given, after the license had been rwoked. 



164 ADMINISTRATIVE POWER AND ACTION. (Part 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 pendeticy 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 "thp. liVpns^ 
shall be revoked by the mayor an d council, upon conviction of the li- 
censee o t any violation ot any law, ordinance, or regulation pertaininfr 
to th e sale ot su cn liquors ," etc. No trial or investigation could be 
had. 'I'he certiticate ot the police judge, showi ng a conviction of plaiii^ 
tiff in error, was bel ore the council, 'i 'hev had but a simple min- 
isterial du ty ro pertorm, m obedience to the plain mandate of the law, 
ana that was to revoke the license. It is stipulated that he was con- 
^victed ot t he ottense stated in the certificate of the police judge. Ti-^ 
IS a amittea that the certificate was true. That being the case, no de- 
fense could have been made, and no notice was necessarv to give the 
( ;ouncil jurisdiction.' ° _ * * * 
'iW judgment of the district court is therefore affirmed.^* 



REX V. VENABI.es. 
(Court of King's Bench, 1725. 2 Ld. Eaym. 1405.) 

An order was made by two justices of the peace for the county of 
Hertford, 15th Novembe*, 1723, 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 
alehouse, &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- 
er, and that oath had been made before them, that the defendant was 
^erved 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 



n 



3 5 The opinion on the other two points is omitted. 
4^ Accord: People v. Meyers, 95 N. T. 223 (1884) ; Sprayberry v. Atlanta, 87 
i/pa. 120, 13 S. E. 197 (1891) ; Genova's License, 8 Pa. Dist. 722 (1889). 
/• Vse ijijjg dissenting opinion of Maxwell, J., is omitted. - 



Ch. 4) NOTICE. 165 

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 irito 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. 
18,1, Reg. v. Dier, where it is held by the court, that upon the com- 
plaint, the justices ought to make a memorandum and issue a sum- 
mons, and if the party will not appear, or cannot be found, they may 
proceed; but there the conviction was quashed, because in the sum- 
mons set out, the time of the appearance therein directed was impos- 
sible.'^ * * * 

Thb Court were unanimously of opinion, that the party in these 
cases ought to be heard, and fo r that purpose ought to be summoned 
on f act ;_ and if the justices proceeded against a person without sum- 
monmg him, it would be a misdemeanor in them, for which an in- 
forma tion would lie aeainst 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, 1735. 
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. 125 111. 289, 17 N. E. 786.) 

Scott, J.'^ 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. 328), to regulate the practice of medicine in 

8' A portion of this case is omitted. 

88 Only a part of the opinion of Scott, J., is printed. 



166 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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. * * * 

Tt is said the statf^ hnard^ in rpgard to revoking cer fifi'^af-pg iggnpH tp 
physicians, m us t investigate, hear ^nd determine certain questions, and 
to the extent it exercises such powers its functions are judicial. It 
is therefore claimed that the question whether a p^iy'i'"''^"^"^'"' ^^''^ 
guilty Of "unprofessional or disho n orable conduct" is a question of fact, 
the findin g as to which, when submitted to the board, is final and con^ 
elusive, and is not open to review by oth er tribunals? The doctrine con- 
"~ tended f6r finds support in tne aecision of this court in People V; 
Dental Examiners, 110 111. 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 hgd"no notice of the proceed- 
ings propos ed to be taken against him . The prosecu tion put defendant 
""on the Stand, and made him their own witness, and he aistitictly 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 i.y mntrarv to the analogies of the l aw 
that a procee ding, in its nature judici al, should be oblig atory and 
conclusive upon a person not a party thereto; otherwise a party mi^ht 
'' be depiived o f im portant rignts, with no op portunity to d efend against 
^ wrongiu l accusations. Whether the rigtit to practice medicine nr law 
\s p roperty, in the technical sense, it is a valuable franchiseTand o ne 
Ot wSch a pers on nnp-bt nnt tr» h e deprived, witbnnt hping- (offered an 
nppnrtnnily^bvjj mely notice^ tn defend it. * * * 
The judgment will be affirmed.^' 

3 9 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, §§' 201-203. See, also, Oshkosh v. State, 59 
Wis. 425, 18 N. E. 324 (1884) ; State v. Schultz, 11 Mont. 429, 28 Pac. 643 
(1892). ^ . _ ' .J, 



•Ch. 4) NOTICE. 167 

• PEOPLE ex rel. LODES v. DEPARTMENT OE HEALTH OF 

CITY OF NEW YORK. 

(Court of Appeals of New York, 1907. 189 N. Y. 187, 82 N. E. 187, 13 L. E. 

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 no tice to him, on th e 17th day of 
January, 1 906. Ther eupon the relator applied lor a peremptory writ 
ot 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 ot the permits ; that the action of the board was ar- 
bitrary and unreasonable, tyrannical and oppr essive in the extreme, 
ana beyona tne power and authority conlerred 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 1173, 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, ffom the b^ ^rH r,^ h^aU-h anH 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 ADMINISTKATIVB POWER AND ACTION. (Part 1 

Ed. 305. It Jias also been held that the board of health has power 
to revoke permits to sell milk, notwithstanding no ordinance had been 
adopted by the board authorizing such revocation. MetropoHtan 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 o'nly 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 hne 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 
h6 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 must act upon 
the infomiation 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 
E. Ed. 620, Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 331, 
32 E. 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) NOTICE. 169 

ft 

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 h. 
R. A. 481, 37 Am. St. Rep. 522, ante, p. 139.] See, also. People ex 
rel. Schau v. McWilHams, 185 N. Y. 92, 77 N. E. 785, in which Chief 
Judge CuUen 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 milk in the 
exercise of their best judgment, upon oi" 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 perrhits, 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 relie'f asked for. 
But if he desired to submit 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 ADMINISTEATIVB POWER AND ACTION. (Part 1 

« 

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 former. 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 lyCgislature ; and the statute im- 
poses upon persons who question the orders of the board of health 
in such cases the duty o.f 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) . NOTICE. 171 

prohibiting the erection of a wooden building within the fire hmits 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 
to 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. 323, 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 mandamus 
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 i-egarded 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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, ]J., concur with Haight, J. Vann, J., reads dissenting 
opinion. ' 



SECTION 22.— IN REMOVAL FROM OFFICE 



DULIvAM V. WILLSON. 

(Supreme Court of Michigan, 1S84. 53 Mich. 392, 19 N. W. 112, 51 Am. 

Rep. 128.) 

Quo warranto. 

Champlin, J.*" * * * That issue is whether, under the Con- .• 
stitution and laws pf Michigan, the Governor has 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 13, § 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 from office for gross neglect of duty, or for 
corrupt conduct in office, or any other misfeasance or malfeasance 

*» Only a part of the opinion of Champlin, J., is printed. ' 



Ch. 4) NOTICE. 173 

therein, either of the following state officers, to wit: The Attorney 
General, * * * q,- ^ny 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 onlv authorizes the (^nvernnr to remove for specified r.aiises . 
He is not authorized to exercise the power at his pleasure or caprice- 
it is only when the causes named exist that the power conferre3 , 
can be exercised . It follows as a necessary consequence that the fact 
must be determined before the removal can be ma dp Jt is also clear 
t hat the fact must be determined by some tribunal invest,ed with judi - 
cial power, for a determination whether specified causes exist is the 
exercis e of judicial functions. Judicial determina tion of facts mus t 
rest up on and be preceded by notice, proot ana hearing." And the 

^nrst 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 &f the 
history of the times, and the surrounding, circumstances when it was 
adopted , the grant ol power is to the Governor coupled with the duty " 
enioined to examine into the condition and a dministration ot aH T 
public oriice. and to examine into the acts ot any public officer, and t o 
rpmnvp trnm nffire fnr g-rnss neg-lect of duty, or for Corrupt conduct 

<.j n office, any of the officers specified. The amendment for this pur- 
pose p lnHipg ^im witVi j udicial power. It is implied in the grant, and^ 

without it the grant wmi lfl V'P Tinnrotr.r y and ineffect ual tn arrnmpHgli 

the purposes for which it was given. * * * 

The counsel for the respondent, while granting this, insist that s uch 
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 th e manifest intention of the section under considera- 
tion that the proceedings Should be ex pane as wen as sumni ai^, a. re- 
moval withou t charges, .notice and an opportunity tor jieiense can~ 
nut be Upheld.. The exercise of such power, in sucn niamiet', would br- 



too de spotic for anv , attemi:)t at vindication In a country which boasts of 
-The utmos t liberty compatible with the safety of the state, and is en- 

"Srely opposed to the genius of our ^^f-f ingHtntinng T dr> nn| thinV 

the people , wh^n th ey adopted tbis amptidment^ intended or supposed 
■ that th p y WPrf ^^'•f'^r.rr cnr-.Vi iinHmitpd pnwpr in tViP tianrlg nf any 



Jjlrin * * * 

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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

an occasion without some evidence being adduced to support the 
charges, and he has no authority to remove for matters uncorinected 
with inabihty 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 justitiag, every one has a right to be heard before 
he is condemned." 

An act of Parlianjent 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 performed, in consequence of the 
negligence of the incumbent, 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. lyord 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, rrtonition 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) NOTICE. 175 

when the bishop proceeded, "on his own l^nowledge, 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.) 673; Willard's Appeal, 4 R. I. 601; Com. v. 
Shfer, 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.] 

The line of authority is not by any means exhausted, but enough 
cases have been cited to show that the action of the Gov ernor in this 
case cannot be upheld as a lep-al and proper exercise ot the tiawgr - 
conlerred vipon him.. There must be cha rges specifying the partic u- 
lars in which the officer is subject to removal. It is not sutticient to" 
follow the lariguage 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 
oince, and ne is e ntitled 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 n otice should be given we do not determine : it must depend, in 



a great measure upon the drcumstances of each case. 

I have caretuUy 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 judgment rnust be entered for respond- 
ent." 

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- 
king, 44 Ohio St. 98, 5 N. E. 228 (1886) ; State ex rel. Denison v. St. Louis, 
90 Mo. 19. 1 S. W. 757 (1886); State ex rel. Attorney General v. Smith, 35 
Neb. 13, 52 N. W. 700, 16 L. R. A. 791 (1892). 



176 ADMINISTEATIVE POWER AND ACTION. (Part 1 

WILCOX V. PEOPLE. 
(Supreme Court of Illinois, 1S78. 90 111. 186.). 

Sheldon, J.*^ * * * j^ 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 should 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 Gov ernor t he power 
to remove any officer whom he may appomt, m case ot mcompetency, 
etc. It follows, then, that it is with the Governor, who is to act m tfie" 
matter, to d etermine, himself, whether the cause of removal exists, 
from the best lignts tie, can get; and, no moae ot inquiry bemg pre- 
s cribed for him to pursue, it re sts with him to adopt that method oi 
inquiry and ascertainment as to the cnarge involved which his judg- 
ment may suggest a s the"proper one, acting under his offic ial tfesponsi- 
bility, and it is not lor the courts to dictate to him in what mann er Ee 
shall proceed in the performance of his dutv. his action not be mg 
, subject to their revision . The Constitution of this state not only de- 
clares that the powers of the government 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, 19 111. 239, 332, 333, 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- 
in the limits assigned to each, neither can control nor dictate to the 
others." 

The case of People v. Higgins, 15 111. 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- 

*2 Only a portion of the opinion of Sheldon, J., is printed. 



Ch. 4) NOTICE. 177 

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 d'oes the common law 
go 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 thereto — a 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, 48 111. 293 ; Porter v. Rockford, Rock Island & St. Louis 
R. Co., 76 111. 561. The doctrine of these cases applies with added 
force to a case of executive action. •* * * ^3 

<3 Accord: State ex rel. Attorney General v.' 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). 

FB.ADM.IiAW. — ^12 



178, ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 common council a statement of 

ijhis reasons for such removal, together with a message appointing the 
defendants to fill the vacancies thereby created. No notice of the 

^miynr'r-i infnnfinn 1-iaf^ Kppii crhrpn tn thp relators. Or to either ot theiri p 
no charges were presented, and no hearing, or opportunity of hear - 

\/^g, or explanation Was afforded to them.. 

L'tie detendants 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 O'f the office to the exclusion of 
the relators. 

The statute authorized the may or to remove from office any com- 
missi oner "for any cause deemed sutfacient to himself." ~ ' 

DanForth, J.** * * * The next position of the relators raises 
a more interesting general question : Whether Hiey were enti'tl ^d to 
have notice or he heard before the final action of the mavor. At 
c ommon l aw there could be no doubt as to th is. Bagg's Case, 11^ 
(Joke, 99, Kex. v. Gaskin, 8 Term Rep. 209, a nd manv others cited 
by the learned counsel for the appellant, stand upon the pr inciple tha t 
nO-bne Shall he tondemtied unheard; but this, too, when applied to 
tne term ot 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^rnrifprrpd 
upon th " Tn^yor, to be exercised as to him shall seem meet. In People 
£2^xel. Mayor v. Nichols, 79 N. Y. 582, cited by the appellant, the 
startute 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) NOTICE. 179 

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 a^ly. 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. H ere the removal is to 
b e determined summarily, and is intrusted to tbp unrpgtrainpd d^f.- 
^creiion o^ tbe jna^r. Nor is this without a" precedent. Among other 
cases, hke 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 remova l 

waS_to be exercis ed at plpasnrp, pvr ept in case g whprp t hpi-p wpjf; o n 

express limitation to a removal after notice and a hearinp-, and fnr 
^ause. People ex rpl. 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.*^ 

PEOPLE ex rel. FONDA v. MORTON et al". -^H--^ 

(Court of Appeals of New York, 1896. 148 N. Y. 156, 42 N. E. 538.) ^ 

Appeal from Supreme Court, General Term, Third Department. li( 
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 v. 
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 f rom the return to his application that he ( 
wks discharged for cause, or. as stated therf ir|,-fnr "inf-nmppfpnfy QnH 

*5 See Trainor v. Board of Auditors, 89 Mich. 162, 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 he satisfied that he h^is heen guilty of official 
miscoiMuct or habitual or willful neglect of duty, construed to permit re- 
moval for incompetence without charges, notice, or hearing. 



180 ADMINISTRATIVE POWEK AND ACTION, (Part 1 

conduct inco nsistent with said position." The relator, without denying 
tne tact so alleged in the ireturnj insisted, notwithstanding, that he 

J was entitled to the peremptory writ, and the fact so returned must be 
taken as true in this proceeding. The discharge of the relator wag 
not preceded by formal charges, or by notice to the relator, or an oj - 
portunity to be heard as to the caus e of his dismissal.^ This presents 
Lhe. only q ueijliori itl the case — wtietner the relator w as entitled to a 

. notice and hezfma: before he could b6 temove37 ~ 

By section 4, subd. 3, of the public building law (chapter 237 of the 
Laws of 1893), which was a substantial re-enactment of chapter 349 
of the Laws of 1883, t he superintendent of public buildinp-s is authnr- 
ized, "subject t o approval of the trustees , tn appoint all p ersons nerps - 
sary m the maintenance department of the public biiilHirjgs and 
grounds under his charge, and suspend and remove anv of them, and 
prepare rules and regulations for their government." In the appro- 

"prjation 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 watchmen who should 
receive any portion of the money so appropriated "shall be persons 
who are citjzens 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 le gislation affecting the present question . 
the right to discharge orderlies employed in the capitol. summarily, 
would admit ot no question] The power to remove employes is jj-iven . 

^in express term s, by the p ublic building act, to the superintendent, wit h 
the approval oi the truste es, withnnt (]iia1ification: a nd, even in the 
absence q| such specific power, the rule is well settled that the pow er 
to appoint to the public service carries with it. to the appointing power, 
in the absence of limiting words or of a fixed termTthe rip-ht to rpmnye 

. the appointee at pleasure. People v. Robb. 126 N. .Y. 180. 27 N. E.~ 
267, and cases cited. 

But the relator reHes upon chapter 716 of the Laws of 1894, 
which was an act amending chapter 312 of the Laws of 1884, entitled 

,J.'Aa..ax:t.. respecting the employment of honorably discharged Union 
soldiers and sailors in the public service of the state of Ne^^ York," 

"as' containing a limitation upon the power'of removal of Union soldiers 

"anH' sailors employed in the public service, applicable to the position 

"oT ffie 'relator. The original act of 1884 related to preferences 5n 
puFlic employment only, and declared that honorably discharged Union 
sold iers and sailors, not incapacitated, and possessing the requisite 
qualifications, should be preferred for appoTntment and employnieilt 

"Th the public departments and upon alfgublTc works of the state. This • 
act was amended by chapter 464 of„ theLaws of 1887 by extending it 



Ch. 4) NOTICE. 181 

so as to subject cities, towns, and villages to the same rule, and a 
section was added en joining, 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 orig-inal 
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, 7 N. Y. Supp. 125) ; for employment as court 
crier (People v. Wendell, 57 Hun, 363, 10 N. Y. Supp. 587) ; for the 
office of village attorney (People v. Village of Little Falls [Sup.] 8 N. 
Y. Supp. 513 ; Id., 54 Hun, 638, 8 N. Y. Supp. 960) ; collector of taxes 
(People V. Barden, 55 Hun, 613, 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, 143 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 gnH gai1ni-c 
employed in the public servicf . The first section of the act of 1884 
was amended so as to read as follows: "Section 1. In every public 
department ;uid upon all the public works of the state of New York, 
and of the cities, towt?s and villages thereof, and also in non-competi - 
tive examination 'i unHpr tVip riiHI gpi-vire nilpp, I^Ayg nr rpgriilatj ons o f 

_the same, wherever they apply, honorablv discharg pH TTpinn cnlrli'prg 
and sailors shall be preferred for appointment and emp lnvmpnt ; age, 

_loss of limb or other physical impairment which does not in fact in - 
capacitate, shall no t be deemed to disqualify them, provided they 

Jposses^ the busmess capacity necessary to discharge the duties of th e 

jjosition involved. And in all cases the person having the power of 
employment or appointment, unless the statute provide ^^ fr.r q rlpfinit^ 
term, /shall have the power of removal only for incompetency and ( 
.conduct inconsistent with the position held by the employe or ap- " 
pointee: a nd in case of such removal or such refusal to allow the 
preference provided for in this act of and tor any subti 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- 

■ friHy temoved or refused such preference, shall have g rigVit of ^^r- 

tinn jp any court of mmpptent jurisdiction for damages as for 



]82 ADMINISTRATIVE POWER AND ACTION. (Part 1 

act w rongfully done, in addition to the existing right of mandamus ; 
the buraen oi provmg such m competency and inconsiste nt conduct 
as a question ot tact, shall be upon the defendant. -But Llie lJiuvt» > 
sions of this act shall not be construed to apply to the position of pri- 
vate s ecretary or deputy ol any othcial or department, or to any^ " 
other person holding a strictlv co nfir'''"^''^^ r^'^'^^inn."/ 

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 1894. 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 specifaed. T he re- 
mov al clause was intended to prevent interference with their tenure 
tor political o fpatlisan oi peisoiial leasuus: — But the statute recog^ 
nized the principle that incompetent persons, or those whose con- 
duct was inconsistent with the dischargeTof their duties, shnulrl not 
b e retained in the public service, however meritorious their prior 
ser vice may have been. The statute operates as a limitation upon 
tne power ol removal, which must be observed by the ollicers oT 
body having the a ppointing power, and it enacts special remedies for 
its violation. 

In the present case the remova;l was made for the cause specified 
in the statute, and nothing a ppears upon the record tending to shoW 
that the power was not exercised in good laith. and in the public " 

.interest . The claim that the relator was entitled to prior notice and 
hearing is not supporte d bv anv language in the act. If he was so 

.entitled, it results trom some general rule of law i mplied from the 
fact that the power of removal was nat nnrestncted. 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 employes of everv jj-rade in the public service or 
on the pubHc works of the state, and the cities^ tnwrm, anH v illpcrpg 

. thereof . The preference is given, no t nn1y in nlpnVal nr r^fhfV sub- 
ordinate positions, but to everv pprcrvn spp-h-in^ pi^v.i.v ^^^pi^yrppi^j- no 
a laborer on the canals, or on the streets of a citv. or in any cap acity. 

.however humble. If employment once secured can only be terminated 
after a notice and hearin g, and something akin to a formal adjudica - 
tion ^upon evideTTggrTfie system would become almost intolerable . 
Many things difficult to define in words, which <ihn\v inrnrnpetencv 
in an employe, or disregard of his duty, and which would justify dis - 

- mis.sal inthe mind of a reasonable employer, would often elude a 



Ch. 4) NOTICE. 183 

for mal investigation. T here are many statutes on the statute book 
relating to the employment and removal of police o fficers, clerks, and 
employes m municipalities, which expressly or by implication require 
that the pnwpr nf remnval shall only be for cause, after notice and " 
hearings nf the person whose removal is contemplated. T he practice 
of legislation in this state has been to insert a provision tor notice" 

_^ nr| jqparinnr Ti-Vinn tUir i-i^p \^f,p^ \y^^ ^ yi^^^ City of New Yoi'k, Con- 
solidation Act (Laws 1873, c. '335) § 25; Id. (Laws 1882, c. 410) §§ 
350, 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 J 
of 1888 and chapter 577 of the Laws of 1892. restricting the power of 
removal of Union soldiers nr sail nr^ hnlding- nffirial pmplnY ment in 
t'ities ri n , d r' ^ "-"\ ' " ^ F , '-""tn'"" n p'-^-'fi--i"" th-j<- i-pn-|pY p 1s shall not be 
made "e xcept for cause shown after a hearing- had." — ftTview of tne ~ 
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- 
'visio n in the statute in question. 

We concu r in the conclusion of the General Term that the Legis- 

. la'ture, having prescribed the grounds of removal in the act of i6\)i, 
left it to the removing power to determine whether the tacts existed " 
which authorized a removal, subject to responsibility for any willful 
or perverse action, and t hat nn nnrirp is rpqnirerl fr, be given to the 

person whose rPm^T^nl in ^r^nfa>T-ip)pfnrl Vinfnm +liP pr,nrpr r-in 1-iP ^^r. 

ercised. 

The order should be affirmed. All concur. Order affirmed.** 



SECTION 23.— SUFFICIENCY OF NOTICE 



STATE V. .LAMOS. 

(Supreme Court of Maine, 1846. 26 Me. 258.) 

TennBY, J. The defendant is charged in the indictment with the 
ofifense 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, ShurtlefC 
7. United States, 189 U. S. 311, 23 Sup, Ct. 535, 47 L. Ed. 828 (1903). 



184 ADMINISTRATIVE POWEU AND ACTION. (Part 1 

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 
ofHcers, who are authorized to g rant a license, are empowered also 
— lu levoke it, whenever any mstance of a breach of the bond required 

cornplaint, notice to the party co "^r1ainpri r^f^ onH -i Viparing- fViPrpr.n 
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 authoritv to give a hearing , and to 
revoke a license, is not conferred without a complamt. and a notice to 
the p arty com plained of. 

it is not necess ary that the complaint should be in writing, signed 
and sworn to as tne law requires m compiamts m criminal DrQceedmgs_ _ 
"JTSfore a magistrate, t o autnonze him to issue a warrant: neither is 
"~it indis pensable th at it should be signed by any one ; but the language 
used in the statute implies tha t 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 Legislat ure could not have 
intended t o 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 evi'dently t heir 
pur pose that after the fact of a breach should become known to 
them, before they cotild give the notice to the person accused ot nay- — - 



ing committed it, and yiuueed tu a hearing, the complain t sliuuld be- 
in writing and contain an allegation of the charges, with specihca- 



tions, and the time when the breach took place. ,.ui all these the 



party c.ompiamed of was entitled to reasonable notice, that he might 



know particularly what he was called upon to answer, ana have,op-~ 



t 



portu nity to produce proof that the char ges vJeT^ uuinunde^ With- 
put this, there would be a looseness which would be perfectly anoma- 
ous 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 tp show what they were. 
The order revoking the defendant's license is in writing, and it is 



Ch. 4) NOTICE. 185 

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, npr was there evidence that anv was before them at the 
hearmg. Thg^ o rder of revo cation was introduced without objection, 
but il: It contained no statement showmg 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. Tt 
does not staite what charges wer e preferred against the defendant; 
and the y could have jurisdiction only on complamt of a charge tha~ 
~ tne con fliMnn in thp hnnri, whirh thp law author izpri tViptn tn inciprt^ Viafj . 
^. been broken. Crosby v. Snow et al., 16 Me. 131. 

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, np proof was adduced to 
sjiow. 

Exceptions sustained.*^ 



PEOPLE ex rel. SHUSTER v. HUMPHREY et al. 
(Court of Appeals of New York, 1896. 156 N. X. 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. Humphrey 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. 1113), 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 

«7 See, also, State v. Kellogg, 14 Mont. 426, 36 Pae. 957 (1894) ; Lillien- 
f eld's Case, 92 Va. 818, 23 S. E. 882 (1806) ; State ex rel. Sullivan v. Tomah. 
SO Wis. 198, 49 N. W. 753 (1891) ; Pehrson v. Ephraim City, 14 Utah, 147, 4fi 
Pae. 657 (1896); Czarra v. Board of Medical Supervisors, 24 App. D. C. 251 
(1904). 



186 ADMINISTRATIVE POWEE AND ACTION. (Part 1 

serving two years in the Union army and receiving an honorable 
discharge, he enlisted in the navy, and served until the close of the 
Vi^ar, 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 33d, 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 wa,s 
to follow immediately, and make S formal complaint. Upon arriv- 
ing at the police station, the relator decHned 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." 
L,a.ws 1893, c. 577. The 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, of 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. 
436, §§ 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 remove him on that ground, and on one or more 
other grounds not embraced in the charge nor covered by the evi- 



Ch. 4) NOTICE. 187 

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, arid 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 themselves 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 charges 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 commissioners, 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

ixit 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. 357. 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'Brien, Bartlett, and Martin, JJ., concur 
with Vann, J., for reversal. Gray, J., concurs with Haight, J., for 
aiSrmance. 

Order reversed. 



STATE ex rel. HEADER et al. v. SULLIVAN et al. 

(Supreme Court of Ohio, 1898. 58 Ohio St. 504, 51 N. E. 48, 
65 Aln. 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 Zumstien, Louis Werner, and George M. 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 th^t the respondents had been removed 
from office by the mayor of the city by virtue of section 2690m, Rev. 
St. 1897, after a hearing uppn charges preferred, and yet respondents 
continued to intrude therein.*' 

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) NOTICE. 189 

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 patrio"tism and public policy 
incline the dlisinterested 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, db 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 madte 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. 33, 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 $835,830, 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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- 
scure. 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 us 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, unaidled by a specific finding 
showing in what the neglect of duty consisted, the entire record is not 
sufficient to support an order of removal.*' * * * 



JOYCE v. CITY OF CHICAGO. 

(Supreme Court of Illinois, 1905. 216 111. 466, 75 N. E. 184.) 

Hand, J.^" * * * 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, andl 
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. 

*8 The remainder of the opinion is here omitted. See post, p. 214. 
5 Only a portion of the opinion of Hand, J., is printed. 



Ch. 4) NOTICE. 191 

In State v. Coi-nmon Council of the City of Superior, 90 Wis. 613, 
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 pa^e 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 * * * jg somewhat 
discursive and indefinite, but we think sufficient can be gathered from 
the complaint to place the relator upon trial for acts which were in- 
consistent with the duties' of a public officer." .* * * 



192 ADMINISTRATIVE POWER AND ACTION. (Part 1 

CHAPTER V 
HE'ARING AND EVIDENCE 



SECTION 24.— IN CONNECTION WITH LICENSES 



PEOPLE ex rel. PRESMEYER v. BOARD OF COM'RS OE 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 froin the said board. A com- 
plaint was made to the board against him, undier 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.i * * * 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) HEARING AND EVIDENCE. 193 

the power to license th^ sale of intoxicating liquors and to cancel such 

_ license when granted is vested in the Legislature, has been determined 

_biLlhia_£QllcL Metropolitan Board of Excise v. Barrie, 34 N. Y. 657. 

The modle and manner in w hirh tVii<; shall he- Hnne rpsif; 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. All 
concur. 

Order affirmed.^ 



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 m prytirp Tti<^rli>me. surgery, and midwifery, in this 

"state.^andl tor further relief. 

The defendants answer, admitting that they are Ihe 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). 

Fe.Adm.Law. — 13 



v/ 



194 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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_ haying 
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 Hcense, 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 - 

_hr _rnntiflRnr.e. . 

The statute requires every medical society, organized under t he 
laws of this state, to elect a board of censors consisting of three m em- 
bers . Authoritv is conferred upo n the hoard tn eyamine a nd liceri se 
persons to practice medicine, surgery <-"- m;rii»r;fpry It is made the 

' duty of the board to issue licenses without examination to all persons 
who fu rnish evidence by diploma from some' medical school authorize d 
to confer degrees in medicine and surgery, when the board is satisfie d 
tiiat ttie person presenting .such diploma has obtained it after p ursuing 
some prescribed c ourse of study and upon due examinatioii. The 
board h as power, upon diue notice. and hearing, to revoke any license 
grant ed by it, when, improperly obtained^ or when the holder has, by 
convic tion for crime or from any other cause, ceased to be worthy o f 

^pubhc confidenceT Gen. Laws, c. 132, § 2. The- defendants allege a s 
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 refus e 
to issue a license if satisfied that either of the causes exists which au - 
thoriz e them to reyoke it. 

The object of the statute is protection to the public from incompe- 
tent and unworthy physicians and surgeons . T wo classes of persons 
are mentioned in ttie statute to who m a license to practice medicine, 
etc., may be issued — those who have an d those who have not received 
a diploma from a medical school authorized to confer degrees. To_ 
the la t ter class the license is issued upon examination : to the formet 
class, witiiout 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 me d- 
ical scho ol, he has only to satisfy the board that it was conferred by ^ 
a school authorized to c onfer Hpgrppc it^ piedicine and surgery, and ' 
that it was conferred after he had pursued the prescribed course of"* 



Ch. 5) HEARING AND EVIDENCE. 195 

study, and upon due examination by the authorities of the school. The 

_statute makes such a diploma conclusive evidence to the ren<^nr^ that 
he possesses the requisite me dical quali fications to practice medicine . 
siirp-ery, and midwifery Hence the provision that he shall receive a 
license without examination; that is, withnnf eyaminatinn as to his 
mnrlirnl gnnlifirntinm 

The statute also contemplates that the exi^encv mav arise when the 
holder of a med ical lirensp may h pcnme, or may prove to have been , 
unfit or unqualified to practice medicine, and for that reason that his 

Ticena£_s. hnn1 d be revoked . Thgji cense is in effect a certificate that the 
holder possesses the necessary medical and other qualifications. The' 
hcense may be revoked when it was improperly obtained, or when the 
holder has, by conviction for crime~or trom any other cause, ceased \ 
to be worthy of public confidence. ^haracter J)no Ips r than mpdira l 
education, skill, and experience, is. wiTtriTi--riTg''meaning of the statu te. 
a qualification for a competent physician or surgeon. One who does 
_ not possess the, requisite qualifications cannot be worthy of public rnn - 

_fidence. Barrows v. Mass. M^d. 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 hcense once granted 

_ cannot be revoked except upon due notice and a hearing-. The holder 
IS given an opportunity to meet charges and evidence tending to show 
his unfitness. The same considerations that forbid the revoratinn o f \ 
a license, except upon n ^tir^ anH a ViP^i-JTIff, ^^"^ rpgniVf^ tViat ttiP ap- 
plicant for a license who possesses the requisite medical q naHfiratintig 
shall not be denied a license without a hearing on the question whether 
he is in other respects worthv 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 
apphcant, if admitted, will be immediately expelled; that in such a 
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. & Aid. 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. 
73. What the common law of this state is on that subject it is not 
now necessary to inquire. This case depends upon the statgte, which 
does not authorize the exclusion of the plaintiff fro m thp rightg^nf a 
licensed physician without trial. 

An examination for the purpose of ascertaining his medical and 
surgical knowledg e 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 ADMINISTEATIVB POWEE AND ACTION. (Part 1 

which would be required if he had no dliploma. Bat the legal mean- 
fng of the statute does not require the issue of a license which should 
be immediately revoked for want of other qualifications than medical 
and surg ical knowledge and skill. A license may be refused, if, on 
other groun ds, upon due notice and hearing, he is fairly proved by 
tEe deienaants to be unworthy of public confiden ce. /If he desires a 
hea ring before the defendant s on that question, further proceedings 
m this case will await the result of the speedy trial to which he is eiT- 
titled before the board. / 
Trial granted. All cOTicurred.* 



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.* * * * It was next objected that, notwithstanding a 
decision by one having discretionary power is conclusive when it is 
the consequence of a proper eyamrnatinnj it i g rint crv w^fp fjip p^- 
ammation appears to have been improperly rondiicted, and that as a^ 
matter of fact, the examination in this case was not rnndnrtpd prnp^r- 

_ ly or lawfully . ' 

It appears by the return that the respondents received, as aids' in 
forrriing 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. T he meth- 
ods of the respondents are impeached on the ground, a"pparentlv, that 
they wer e 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 netitioner.s, were the, 
subjects which they were charged to ascertain, when application was 
made for license. Therefore, their mode of inquiry, and of satisf y^ 
ing their own judgments, was not subject to the rules which, apply to 
the ascertainment of disputed private r ights. 

AiS no mode ot inqui r y is prescribed by the statute, the Commiss ion- 
ers are by implication, authorized to adopt any that may reasonably 
be used in attaining the end in view. Th ey were the head of a police 

» See Queen v. Justices of Walsall, 3 Common-Law E. 100 (1854) ■ Ex 
parte Kavanagh, 10 Times L. Rep. 633 (1894) ; In re Schomaker, 15 Misc 
Rep. 648, 38 N. Y. Supp. 167 (189S), hearing a matter of custom and courtesv" 

Right of remonstrants to be heard. Steinkraus v. Hurlbert, 20 Neb. 619, 

* Only a portion of the opinion is printed. ^ ^ 



Ch. 5) HEARING AND EVIDENCE. 197 

force, which it was their duty to emp loy in watching over good order 
and preventing crime. The tacts wnirh might Hptprminp t VipiV gp- 
jrnval nr disapprnval ni g lirpnsp gncli ag flip assembling of disorderly 
persons, were the very matters which it was the dutv of their sub- 
ordinate nff''''"-F <-" ^i^i^'-yf It was not only reasonable, then, that 
they should derive information from that source, in aid of their ex- 

eriltlvf^ disrrp1-inn, hut if may even be said fn hp qn i ntpndmpnt ni law. 

iri every system of executive discretion, that the executive head may 
^act upon mere information de rived from his arrnuntahlp subo rdinates.^ 
.This difference between an inquiry into disputed private rights and 
an inquiry intended simply to ascertain the inte rests of th e public was 
^considered and w ell statpH in Pand enbusch's'Appea l. 120 Jr'a. 34a. 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 dioubt 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. Xhf" "bj'^'-t '~'^ p-'Hrtprirp i n such cases is to inform 
fhp .-r^ngfipnrp r»f thp r-p urt. SO that it Can act intelligently and iustlv 
in the performance of a public duty. Whilst the art nf Hecidinpr in 
such cases is quasi judicial, the difference between the granting an d 
withholding- nf a. license and the decision of a question between pa r- 
tiij ^s tr> a -private litityation is manifes t. N either the petition er nnr 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 EUenborough 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- 



J 98 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 riot to be evidence at all. 

We nnt nnly adhere, then, to the Opinion expressed in Manion's 
Case, 6 Mackey, 409, th at the Commissioners have full discr etion in 
the matter nf retail liquor licenses, but we hold that they may conduct 
their inquiries by what may be called executive methods'. * ^ *"' 



ULLIENFELD v. COMMONWEALTH. 

(Supreme Court of Appeals of Virginia, 1896. 92 Va. 818, 23 S. E. 882.) 

Appeal from corporation court of Charlottesville. 
Proceeding s by the Co nxrnnnwenlth nrninst T. J. I^jj lienfeld to re- 
volce dete'ndant^s liquor license. From a judgment revoking the, l i- 
cense, detenaan t appeal s. Affirrned . 

RiELY, J.® ^ ^ ^ The proceeding to revoke the license of the 
plaintiff in error to sell liquor was taken by the court of its .own mo- 
tion, under section 560 of the Code, which is as follows: ('Upon 
the m otion of the attorney for the commonwealth for the countv or 
city, or of any other person, after ten days' notice to any person or firm 
license d to sell liquors or anv other thing, the granting of whose li- 
cense was based u pon the certificate of a. court, the court which granted 
the certiticate may revoke the license ;"/ and the order nf the cou rt 
initiating t he proceeding wag in fhf '■f,■^^^s^'T^,lr,g yrr^i-rlg- "it is ordered 
by the court tha t a notic e be issued against F. J. L,iUienfel d to show 
cause, if anv he can, whv 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 h earing 

~ of the uidLl L i, lyill renteld, by his counsel, moved the court to qu"asTr 
the notice upon Lhe ijiuuiid lliaL it was not s u ffic i eiiUvs ped ficr^whtrh 

' aiuLiuii L he courl overrule d; and Lh is const itutes tfie^first assig ninpp^_ 

^ot error. """ 



\ The order of the court, which v.^as dulv served upon the defenda nt- 
set forth plainly the ground ot the proc eeding — the sale of liquo i' to 
minors^ It apprised him of the charge against his conduct of the 
business under his license. The statute does not provide, in terms, 

B Compare Queen v. Licensing Justices, 14 Q. B. D. 584 (1885) ; Reg. v. 
Bartlett, 49 Justice ot Peace, 'ir2 (1885). ' 

6 Only a portion of tli| ^oginion by Riely, J., is printed. ^ 



Ch. 5) HEARING AND EVIDENCE. 199 

that the ground upon which 'the revocation of the licerise is or will - 
be asked shall be set forth in the notice or otherwise. Tt is snffirient 
to state the charge or charges in genera) tpi-^i", if "tatpH with sufficient 
certainty to enable the person or firm wlmsp WrewiP h i=; sought to 
revoke to understand the ground upon which the revocation will be 
asked . This was done in this case. T he proceeding is a summary 
one; and, as was said by Judge Lewis in Cherry v. Com., 78 Va. 375, 
378, "it was m anifestly not the intention of the L egislature to re- | 
quire in sucH~proceedings the application of the strict and techniat- 
~rules which apply to indictments and other forms of accusation in j 
criminal prosecutions." There is no substantial diiiference 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 notipe was held to be sufficient. 

J tis a l s o alleg e d ag prmr thai the rnnrt a dmitted as evidence, over 
the objection of the defendant. 19 indictnients which had been found 
against him by its grand jury for selling liquor to minors and were 
tlien pending in the court tor trial : -ancL also in receiving Llie Lesti^ 
mony of Charles Wilkins that he had purchased intoxicating liquors 
of the deiendant at his par-room wUhin thp prererling ia mnntlisT^ 
but, prior to May- 1. 1895. when his license took effec t. In this there , 
was no ep xir. 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 
jur}', but the floors 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 wa.s 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 ADMINISTEATIVE POWER AND ACTION. (Part 1 

merits 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 employes, or knowingly retain 
in their service as bar tenders persons who violate the law. 

Upon a consid eration n i_lbe 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 shniild 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 respec ting^ an application for permission 
to locate a c emetery in the town of IJloomfield, Essex coun ty^ THe* 
application was hrst presented on December 34, 19uu, to tne 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 38, 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 o'f the board. 

Afterwards, on April 33, 1903, the counsel of the respective par- 

. ties were notified that on May 8, 1903, at 3 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 

; 33, 1903, to the same effect as that of June 28, 1901, which resolu- 

I tion is now before us for review. 

7 See, also, Traer v. State Board of Medicfil Examiners, 106 Iowa, 559, 76 
Vn. W. 833 (1898). But see People ex rel. Silkens v. McGlyn, 62 Huu, 237, 
■' 16 N. Y. Supp. 736 (1891), no proof other than character and standing of com- 
>/■ plainants. ' 



Cll. 5) HBAEINQ AND EVIDENCE, 201 

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 assigfted for annulHng the res- 
olution present two questions — First, w hptVipr the hnard was hound 
J^o examine persons under oath touchinp- the mattprs stated and con- 
troverted at the hearings before it; anri gppnnH wlipt her the, hoard 
had a ri g ;ht to c nmsiHpr a rppnrt made tn it hy its committee while 
the first gpppfil w;is r°"din^. 

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 th6 board " 
the matters on which its judgment siiould rest. _Nor do we find 
either in the statute relatinff to cemeteries or in that establishmg - 
_the state board of health (Gpn St p ifi3^)_ any in diratinn that the 
board was to proceed as courts do in suits inter partes. Ther e is 
nothing suggestive o f a power to summon witne sses, to administer 
. oaths or to compel tne j^iviuu uf evideuot:, either oral or written. 
Moreover, the matters to be considered by the board respecting the 
propriety of lo cating a new cemetery are of so general and public 
a natu re ttiat tlaey can be decided more intelligentlvbv observation 
and discussion thaii by testimony. In this respect the board resembles 
"boards ot assessment, whose proceedings involve the pxercise 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 determination. State v. Jersey City, 
24 N. J. Law, 662, 665. 
, S [g^ 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 



TOMLIN-SON 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 pet itinn is that 
. it [the board of equalizationi refused to hear witnesses offered by com- 
plainant in support of his complaint as to an excessive assessment as to 
valuation. .Jn this, did they "excee d their juris'dict ion, " 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 empowered 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? JEe titioner's contention is that thev mu st 
;. hear witnesses pro duced by him ; that he has a right to examine such 
" witnesses, and cross-examine such as are produced a gamst him . HLu 
other words, that the act contemplates a regular trial, according to the 
ordinar y course of law, and the decision according to th e weight 
ot the proo l. 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. ^ 
» Only a portion of the opinion of Lurton, J., is printed. 



Ch. 5) HEARING AND EYIDENCE. 203 

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 compara- 
tive values — which they have as citizens and freeholders, and which 
they obtain from an examination and comparison of the assessment 
Hsts, will, in the vast majority of cases, enable them to act Justly 
upon the complaint. But cases may occur where these means are, in 
their judgment, unsatisfactory. In such case, the act declares that 
ihe "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 suiificient evidence upon 
which such board may act." The "board shall hnve Hip riglnt" t^^ 
summon before them Hisjntprpsted Treeholders is the language of 

. the act. Does this power conferred make' it their duty to either hav e 

witnesses brought bv the party making complaint, or 'require them 
in all rases to gnmmnn witnpi^s es upon such complaint being made ; 

. or is the h eqrino- nf ^An'tnes^ps n rnattf^- w hollv 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 cn tnn]ainanf- wnii1H ipnlv a d uty to thp <ifafe and muntv^ 
to hear and examine witnesses to sus tain th e 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 t Jip tlinngnnrlc: — That pa.rh taxpa yer should 
have the right to come with his witnesses, and have them heard, and 
be heard by ronnsel. would result in such delay and embarrassment 
as to amount to a great public pg ril with regard to the assessm ent 

of the public revenue s. No legisls Hvp hndv rnnM have sprinn<;r3r rnn-- 

~ templated such a tribunal to deter minp a mprp qiip<;tinn of an pxcps- 
sivp vfi l fiation for pnrpnsp nf atsspssmpn t. Occasional instances of 
excessive assessments may occur; but they had better be borne than 
that 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 matter to i 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 ADMINISTEATIVB POWER AND ACTION. (Part 1 

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. * * * lo 



AUFFMORDT v. HEDDEN. 

(Supreme Court of United States, 1S90. 137 U. S. 310, 11 Sup. Ct.- 103, 

34 L. Ed. 674.) 

In Error to the Circuit Court of the United States for the Southern 
District of New York. 
Action t o recover an alleged excess of duties, paid under protest. 
"TiLATCHFORD, J." ^ ^ ^ bection a930 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, he may forthwith give 
notice to the collector, in writing, of stich 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, 663, 12 Sup. Ct. 336, 35 
L. Ed. 1146 (1892). 

I Under statutory provisions, assessing board may be required to hear wit- 
(jiesses. People ex rel. Bronx Gas & Electric? Co. v. Feitner, 43 App. Dlv. 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 Mete. (Mass.) 211. 

The same practice is commonly f ollovced with regard to the qualifications of 
electors, so far as the action of election or registration officers is concerned. 
"Practically, the lave 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 law 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), post, p. 302. 

11 Only a portion of the opinion of Blatchford, J., is printed. 



Ch. 5) HEARING AND EVIDENCE. 205 

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 am 
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- 
tion, 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 3903 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"; ajid, by section 3930, it is made 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 pustom-house business, and who acted in 



206 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 roorrl 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 pointings 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 
may 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 
behal'f ; (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 notexist in a 



Ch. 5) HEARING AND EVIDENCE. 207 

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 

'^s if it were an issue in a suit in a judicial tribunal Such is not the 
intention ot the statute, and the practice has been to the contrary from 
the earliest history of the government. No government, could collect 
its reve nues or perform its necessary functions, if the system con - 
tended tor py the plaintiffs were to prevaiL The regulations pre- 

""SCribLd iu Lhe iiisLructiOtls 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 
2653 (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 o'f 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, entjtled 
"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, sectidn 10 of that act provides, that it shall be the dutv of 
the appraisers of the United States, fby all reasonable wavs and 
means,"lto apprai se the actual market vaVue a nd wholesa le price of im-" 
ported goods in t he principal markets of the country whence the same 

liave Dee n imported ; and section 13 of that act provides that t he deci- 

' sion ot the app raiser or that of the general appraiser in rases nf reap- 
Draiaei llbnl, or that ot the hoard of general ap praisprs on rpvjpw shall 

' be tina l and conclusive as to 'the dutiable value of the merchandise. 
against all parties i nterested therein.. There is nothing in the in- 
sti uLLlOhfe 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' ro om 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. ' 

"^I'he mefChant appraiser had then and there samples of the plaintiffs' 
godds, and the general app raiser asked the agent for his statement in 
the Case, and it WHii made. J'he samples were on the table befoTe" 
the merch ant appraiser, and the cases of goods were in the adjoining 

- fpf^ivi 'i|i» gg-g nt mp^i ^ no objectiou as to the proceedings, and tes- 



208 ADMINISTRATIVE POWEE AND ACTION. (Part 1 

tifies that Jie was allowed to make a full statement concerning th e 
value of the plaintiffs' goods; and the evidence fails to show that 
any request was made on behalf of the plaintiffs which was refuse d. 
except the req uest t o find. the value w h'^r-h thp plqintiffs dprirpd to be 
found. * ^ ^^~" 



ORIGET V. HEDDEN. 

(Supreme Court of United States, 1894. 155 U. S. 228, 15 Sup. Ct. 92, 39 

L. Ed. 130.) 

Fui,i,ER, C. J.^» * * * 3. The contention that the importer has 
the right to be present throughout the proceedings on the reappraise- 
ment; hear or exam ine all the testimony, and cross-examine the wit- 
n esses, which was passed on in Auffmordt v. Hedden. 1 37 U. S. 310, 
■ 11 yup. Ct. 103, 34 L. Ed. 674, is renewed in this case. 

The importer appeared at the opening of the reappraisal, and mad e 
application that ne or nis associate or his counsel might examine 
the various amdavits made by ex perts, importers, merchants, and 
"others, be jjresent at tne taking~or~any test imony, and cross-examine 
al l witnesses produced, or sugge st que stions to the gene ral appralserT 
'I'tie 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 a ssurance of appreciation of any suggestions 
the importers might make as to ask ing questions of the witnesses. 
ihe presumption in lavor ot othcial 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. 1.901, 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 1884, 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 
drre regard for the rights of all parties and independently of the tes- 
timony of interested witn«sses. ' 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 appraisement of so-called experts in the line of goods 

12 See rules regarding examination of immigrants, 125 Fed. 643. 

13 Only a portion of the opinion of Fuller, C. J., is printed. 



Ch. 5) HEARING AND EVIDENCE. 209 

in question. * * * Appr3isers are authorized to summon wit- 
..nesses, but there is nn authnrity for the public examination of such 
witnesses or their cross-examination by importers or counsel em- 
ployed by such importers - The appraising officei-s are entitled to all 
information obtainable concerning the foreign market value of goods 
under consideration, but such information is not pubHc 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 proceed^ings." 

As already stated, plaintiff in the case at bar was invited by the 

■ .appraisers to present tiis views in regara to t he feappraiseiiiuiiL, d.n4 — 

lu jju^JH tibt Muestioiib Lu be put to the witnesses. He did not avail him- 

selt o± the opportunity, but insisted on the right to remain throughout 

the proceedings, to be informed as to all the evidence, and to cros s"- 

examine the witnesses as in open court. This, ac cording to Auff- 

mordt V. Hedden and Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct. 

573, 37 L. Ed. 426, c ould not be ronrerled. I n those cases it was 

ruled that under the reven ne systpm nf the United States the question 

ot the dutiable value of imported articles is not to be tried before 

the appraisers, as if it were an i■;.^^1 ^f i" ^ cnif in r, jnr^iVi'al prnT^pHing^- 

"that such is not t ^^ intentinn nf the slatntes: thnt the, prartirp has 

_been to the contrary from th e earliest tn'ctrvry nf tVip ornvprnmpnt ; anrl 

that the provisi ons ot the statute ''n t^'° VipVnlf 'ivf npan tn nn mn 
c+i'tntin pal ohjpctinn 

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 
i. dividual. Lent v. Tillson, 140 U. S. 316, 327, 11 Sup. Ct. 825, 35 L. j 
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 t o give hi s views and make his content ion in respect nf 
"Tile value of iTis goods, ne cannot complain. * * * 

JUdgliiKuL dffiiuiLd. ' "■ 

Fe.Adm.Law. — 14 



210 ADMINISTRATIVE POWER AND ACTION. (Part 

SECTION 26.— IN DEALING WITH NUISANCES 



REYNOLDS v. SCHULTZ. 

(Superior Court of City of New York, 3867. 27 N. t. Super. Ct. 282.) 

Robertson, C. J." * * * Xhe statute ^^ 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 peccantjsmployments, 
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 mode 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. * * * 

1* 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. Ilelster, ante, p. 137. 



Ch. 5) HEARING AND EVIDENCE. 211 

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 ahd 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.^* Although I am not prepared! 
to say that an a'djuration of a witness, the form of which may be 
varied by law, and is allowed according to the conscience of the party 

isGroenvelt 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 said, he would 
not give a positive opinion." 



212 ADMINISTRATIVE POWEK AND ACTION. (Part 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, § 3) 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 husbandl 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 sin>ilar 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- 
qtiired 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. Kep. 203.) 

BBAStEY, C. J.^' * * .* 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) HBAEING AND EVIDENCE. \J 



213 



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. Thi s is a judicial function, and it 
IS a Junction 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. Ii _a man's property cannot he taken 
away f rom him except upon trial by jurv. <•"• by <-hp pvprpjgp nf the 
right of eminent aonialn upon compensation made, neither ran he, in 
any other mode, be limited in the use of it. The right to abate public 
nuisance s, 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 exercip f, fmm th.^ ^-im^ 
so urce — 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. B ut the necessity must be present 
to justify the exercise of the right, and whether present or not mus t 
be submitted to a jury under the guidance of a court. T he finding of 
a sa nitary comm ittee, or of a municipal council, or of anv nthpr hnHy 

'ot a similar kind, c an nave no effect whatever, for any purpose, upon 

~the ultimate aisposition of a matter of this kind . It cannot be used 
as e vidence in any legal proceeding, for the end of establishing, finally, 
the tact of nuisance, and if it can be made testimony for any purp ose 
it wo uld seem that it can be such nijily to show that the persons act^ 
ing in pursuance of it were devoid of that malicious spirit which 
sometinies aggravates a trespass, and swells the damages . 

J^ repeat that the question of nuis ance can conclusively be deci4ed, 
for^all legal uses, by the established courts of la w Of equity alone, " 

~and that the resolutions ot omcers, or ot Doards organized by force" 
ot muni cipal charters, c annot, to any degree, control such decision. 

"* W iTTB ' ' 

18 Accord: Munn v. Corbin, 8 Colo. App. 113,. 44 Pac. 783 (1896). 



214 ADMINISTRATIVE POWER AND ACTION. (Part 1 



SECTION 27.— IN REMOVING FROM OFFICE 



STATE ex rel. MEADEli v. SULLIVAN. 

(Supreme Court of Ohio, 1898. 58 Ohio St. 504, 51 N. E. 48, 65 Am. St. 

Rep. T81.) 

Spear, C. J.^° Two questions are presented. One relates to the 
sufficiency of the charges ; the other, to the action of the mayor upon 
them. [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 eaid charges, or either of therri, 
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 may or 
is not judicial withi n the meani "{i^ f>f ^^t^ "^""stitllti on, yet, as al.- 

~ready found, it is not to bfe exercised arbitrarily : that is. a hearinff i.s 
to be gi ven tne accused, and he is to have the opp nrtiinity tn rpfuff 

_wJiat 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) HEARING AND EVIDENCE. 215 

' The decision therefore is rested upon the first proposition. Judg- 
ment affirmed.^" 

MiNSHAi,:,, J., dissents. 



PEOPLE ex rel. McALEER v. FRENCH et al. 

(Court of Appeals of New York, 1890. 119 N. 1". 502, 23 N. B. 1061.) 

Appeal from Supreme Court, General Term, First Department. 

The police COm mi'"'''^Tiprg d Npw Vnr k- rity rlk misgprl thp rplatnr 

-from the police force for intoxication.. O n certiorari that order was 
affirmed by the Supreme Court. General Term, and relator appeals. 

Eari,, J.^^ 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 deaHng 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 Suprfeme Court nor this court has any jurisdiction to interfere 
therewith. 

We think the force and effect of the decision in the Masterson 
Case ^^ 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 

2 "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 regardless 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. 50O (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. GlennoUf 37 Slisc. Rep. 1, 74 N. Y. Supp. 794 (1902). 



216 ADMINISTRATIVE POWEE AND ACTION. (Part 1 

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. 

■^ -JBu L^ow, by se ction 2140 _of the Code of Civil Procedure, upon the 
hearing on the return oi 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. «ot only upon the law, but upon the evidence, to the e.-x- _ 
tent specified in the statute : a nd every party who seeks such a re- 
v iew 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) HEAEING AND EVIDENCE. 217 

SECTION 38.— POWER TO OBTAIN INFORMATION ''^ 



LANGENBERG v. DECKED 

(Supreme Court of Indiana, 1S92. 131 Ind. 471, 31 N. B. 190, 16 U 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.^* 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, coinposed 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. * * * jj- ^Iso 
contains this provision : "They shall have the power to send for per- 
sons, books, and papers, to examine /ecords, hear and question wit- 
nesses, to punish for contempt .any one who refuses to appear and 
answier 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- 

2 3 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, Caha v. United States, 
152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415 (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 Mo. 666, 
18 S. W. 894, 32 Am. St. Rep. 640 (1892) ; St. Joseph v. 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 Com- 
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. Lewlsohn v. O'- 
Brien, 176 N. Y. 253, 68 N. E. 353 (1903), overruling People v. Kelly, 24 N. 
r. 74 (1861) ; People v. Butler Street Foundi-y Co., 201 111. 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." 

2* Only a portion of the opinion by Coffey, J., is printed. 



218 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 ofaflie statute, the state board of tax commissioners, 
on its own motion, caused a subpoena 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 
subpoena, 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 subpoenas 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 subpoena 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 whigh you are 
vice president, on the 1st day of April, 1891. A. About $300,000. Q. 
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. • * * * "26 

25 A number of similar questions and answers followed, which are omitted. 



Ch. 5) HEARING AND EVIDENCE. 21P 

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) 
delivered 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 contenipt 
is a judicial function, which can only be exercised by a court, and, 
if it be claimed tha-t 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 ADMINISTRATIVE POWKR AND ACTION. (Part 1 

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 c6ntempt of its authority is void by reason 
of being in conflict with the state constitution, can be sustained, the 
other questions presented db 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 andl 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 aga:inst 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, 7 Phila. (Pa.) 595, Fed. Cas. No. 3,968, 
in discharging the prisoner, who had been committed by a com- 
missioner appointed by the United States Circuit Court as for a con- 
tempt for refusing to appear and testify andl 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- 



Ch. O) HEARING AND EVIDENCE. 221 

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."^" 

Again, in the celebrated case of Kilbourn v. Thompson, 103 U. 
S. 182, 26 h. 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 rule^ 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 recordi 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 Iv. Ed. 242 ; Shoultz v. McPheeters, 79 Ind. 373 ; Vandercook v. 
Williams, 106 Ind. 345, 1 N. E. 619, 8 N. E. 113 ; Ex parte Milhgan, 
4 Wall. 2, 18 L. Ed. 281 ; Gregory v. State, 94 Ind. 385, 48 Am. Rep. 
162 ; Whitcomb's Case, 120 Mas?. 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- 
rial, 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 0^ 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- 

28 See, also, United States v. Beavers (D. C.) 125 Fed. 778 (1903). 



222 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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. ^^ 



INTERSTATE COMMERCE COMMISSION v. BRIMSON et al.. 

(Supreme Court of United States, 1894. 154 U. S. 447, 14 Sup. Ot. 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.^* Tihis appeal brings up for review a judg- 
ment rendered December 7, 1892, dismissing a petition filed in the 
Circuit Court of the United States on the 15th day of July, 1893, 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 3, 1889, and February 10, 1891. 
24 'Stat. 379, c. 104; 35 Stat. 855, c. 382; 36 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.'13o, 25 L. R. A. 110. 45 Am. St. 
Rep. 261 (1894); De Cainp v. Arcliibald, 50 Ohio St. 618, 35 N. E. 1056, 40 
Am. St. Rep. 692 (1893) ; State ex rel. Haughey v. Ryan, 182 Mo. 349, 81 
S. W. 435 (1904). 

"It is true tliat 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. 4S4, 467 (1699), 

2 8 Only a portion of the opinion is printed. 



Ch. 5) HEARING AND EVIDENCE. 223 

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 otit 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 subpoena, 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 subpoena 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 subpoena 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 tht names of the stockholders 
of the Calumet & Blue Inland Railway Company, but refused, upon 



224 ADMINISTKATIVB POWER AND ACTION. (Part 1 

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 succeedirig day the commission issued a subpoena 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 subpoena 
was issued to William R. Sterling, as first vice president of the steel 
company, commanding him to appear before the commission andl 
produce the stock books of that company. Keefe and Sterling ap- 
peared in answer to the subpoenas, but refused to produce the books, 
or either of them, so ordered to be produced. 

The commission thereupon, on the 15th day of July, 1893, 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) HEARING AND EVIDENCE. 225 

Courts of the United States are caj)able, under the statutes defining 
and regulating their jurisdiction, of exerting such power in cases or 
controversies of that character, within the limits prescribed by Coa- 
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 refusalj 
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 again.st 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 
Fb.Adm.Law — 15 



226 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 fo determine it directly, and, as between the parties, 
finally, must reside somewhere. It cannot be that the general gov- 
ernment, with all the power con ferred upon it by the people of the 

" United States, is helpless m such an emergency, and is unable to pro- 
vide some method, judicial in form and dire ct in its operation, tor~ 

"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 

2»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 (1803), 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) HEARING AND EVIDENCE. 227 

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 irnposed 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 dtoies 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. I ndeed, of all the modes th at could be constitutionally 
prescribed for the enforcement of the regulations embodied in the 
interstate commerce act, that provided by the twelfth section Is Ihe- 
one which, more than any other, will protect the public against the ~ 



228 ADMINISTEATIVB POWER AND ACTION. (Part 1 

_d evir.es of those who, taking advanta g -e of special circumstances, or 
J] ^ means of c ombinations too powerful to be resisted and overcome" 
"^^^T^jnrHviHlial^ fttpf^ wTtiiTH . ^iihjprt rnmmercp am on g the StatPS lEL 
iin just and un rf.asonahlejjiirdens. 

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 dlispute 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 
if 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 
andl 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 
duty 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 I ' 

For the reasons stated, the judgment is reversed, and the cause is 
remanded for further proceedings in conformity with this opinion. 
Reversed. 

Mr. Justice FibI/D was not present at the argument, and took no 
part in the consideration or decision of this case. Mr. Chief Justice 
Fui,i<BR, Mr. Justice Brewer, and Mr. Justice Jackson, dissent. 

so See, also, Kentucky & I. Bridge Co. v. Louisville & N. E. Oo. (C. C.) 
37 Fed. 567, 613, 614, 2 L. R. A. 289 (1889). 



Ch. 5) HEAKING AND BVIDBNCB. 229 



In re DAVIES, Atty. Gen.' 

(Court of Appeals of New York, 1901. 168 N. Y. 89, 61 N. E. 118, 66 t,. 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 reteree lor 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.'^ * * * 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 tlie people against any corporation, foreign or domestic, its officers 
or agents, or against any person, "to restrain and prevent the doings 
in this state of any act herein declared to be illegal, or any act, in, 
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 

•lOnly a portion of this case Is printed. 



230 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 7. 

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 "as 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 nam.es of 28 persons, and alleged that 

- the testimony of each was "material and necessary to the establish- 
ment of the unlawful agreement, arrangenient, or combination whereby 
the above-described monopoly in the sale of ice was created and es7 
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 

fc companies in the city of New York whose business had been absorbed 

(py 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) HEARING AND EVIDENCE. 231 

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 
matters 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 
g^sneral 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 conforms 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) HEARING AND EVIDENCE. 233 

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 now 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 
Cooper, 32 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. * * * 

Throvtgh 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 tiial? * * * 

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. 3 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. PI. & 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 ADIIIXISTRATIVE POWER AND ACTION. (Part 1 

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. * * * 32 

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 The court tlien 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) ADMINISTRATIVE EXECUTION. 235 

CHAPTER VI 

ADMINISTRATIVE EXECUTION 



SECTION 29.— DISTRESS WARRANTS 



DEN ex dem. 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.^ 
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." ^ 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 mouey befor^ 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- 
tigs 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 ADMINISTEATIVB POWER AND ACTION. (Part 1 

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 ot 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 ease requires. But no 
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 eases, 
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) ADMINISTRATIVE EXECUTION. 237 

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 establish, 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 this 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, nor 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 ef 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 terms 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 judicial 
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 ADMINISTRATIVE POWEK AND ACTION. (Part 1; 



• 



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 war;-ant 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 irom 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 ana 
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, 1783, 2 Laws, Pa., 13; of 



Ch. 6) ADMINISTRATIVE EXECUTION 239 

South Carolina, 1788, 5 Stat. S. C, 55; New York, 1788,1 Jones & 
Varick's Laws, 34. See, also, 1 Henning's St. Va., 31^, 343 ; 13 Hen- 
ning's St. Va., 563 ; 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, 7 La. Ann. 193. 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 dehnquent 
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 manner 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. 631, 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 1830 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, uiiless 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, 34 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 from 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 sometime^ 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 pmblic 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 may 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 such 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) ADMINISTRATIVE EXECUTION. 241 

may 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 1830 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 
may 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 
Fp..ADM.LA\y — 16 



24:2 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 riot 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 111. 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 Avarraiits, with orders to sell the property, of delinquent collectors, etc., 
has been questioned, and as it has but little, if any, advantage over the regii- 
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 (Kurd's Rev. St. 1910, c 120) «'^ ''45 
259. " ' 

See Century Digest, Taxation, §§ 1095-1101. 

Administrative imposition of penalties for fraudulent evasion of taxes, see 
Doll V. Evans, Fed. Cas. No. 3969 (1872). People v. Nat. Bank, etc., 123'cal 
53, 55 Pac. 685, 45 L. R. A. 747, 69 Am. St. Itep. 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 thff 
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) ADMINISTRATIVE EXECUTION. 243 



' SECTION 30.— ABATEMENT OF NUISANCES— RECOGNI- 
TION AND VALIDITY OF POWER 

NEFF V. PADDOCK et al. if-^"^ ^ 

(Supreme Court of Wisconsin, 1S70. 26 Wis. 546.) ^'T^ 

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 thatj 
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 tlie 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, * * * = ^ 

4 Only a portion of the opinion of Cole, J., is printed. ' 

6 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 oases (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 removed — by the party aggrieved thereby, so as he 
commits no riot in the doing of it." -i 

So especially there is no common-law right of summary abatement by in- u 
dividuals, where the nuisance consists only in the violation of the law, as, 
e. g., the illegal sjale of iiquor, see Brown v. Perkins, 12 Gray (Mass.) 89 



244 ADMINISTRATIVE POWER AND ACTION, (Pdrt 1 

HUBBELL V. GOODRICH et al. 

(Supreme C!ourt of Wisconsin, 1875. 37 Wis. 84.)' 

Appeal from the circuit court for Sauk county. 
This afction is to recover damages for an alleged trespass by t he 
Hefenrla nfc; in pn tp.rinp- upon the lands of the plaintiff and taking dow n 
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 

J 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, apd 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, 
I 1 (Tayl. St. p. 477, § 1). The s upervisors have power, and it is 
their duty, to cause the summary removal of any public nuisance found 

^jh an^ highway undei ll ie ir jurisdiction. Mett v. .PaddocRI 26 Wis." 
SM'. Ana 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 summarily 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. 

(1898) ; Earp v. lice, 71 111. 192 (1873) ; Gray v. Ayres, 7 Dana (Ky.) 375, 
32 Am. Dec. 107 (1838). 

Where the right of any individual to abate a nuisaijce 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 v. Day, 4 Md. 262 (1853). 

See F. J. Goodnow, Summary Abatement of Nuisances, Columbia Law Re- 
view, II, 203. « 



Ch. 6) ADMINISTRATIVE EXECUTION. 245 

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- 1^ 
tention to obstruct the highway), we are of the opinion that the 
supervisors have no power to cause the summary removal thereof, y 
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 was 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 Jj 
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 1^ 
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 thfe error may have injured the plaintiff, there must be another *■ 
trial. 

Judgment reversed, and new trial awarded.* ' 

i 

'The English authorities are silent as to the power of oflBcers, 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, 1T50. 

A sherifC 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. Ill, c. 78, 
§ 12 (only after 20 days' notice), and 5 & 6 "William IV, e. 50, §§ 69, 73. See 
2 Ell. & Bl. 748; also 57 Geo. Ill, c. 29 (Michel Angelo Taylor's Act, relat- 
ing to London, a prlvafe act) § 65. 

For American legislation, see the following : 

Prov. Laws Mass. 1693-94, c. 6 (Highways) : 

"Section i. * * * 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 incurnbrance 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. T. 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 maliing 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 gixty 



246 ADMINISTRATIVE POWER AND ACTION, (Part 1 

KING V. DAVENPORT, Executor. 

(Supreme Court of Illinois, 1881. 98 111. 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, establish 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. Deg. 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 rea.sonable 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) ADMINISTRATIVE EXECUTION. 247 

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 thg 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 establish 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, * * * or 
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 buildingf, 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 
Mete. (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 ADMINISTRATIVE PO WEE AND ACTION. (Parti 

, 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 rei-rjedy 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. 6), and that "the i-eason why 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 had 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 the 
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 
L,egislatui-e 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) ADMINISTRATIVE EXECUTION. 249 

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 
mayor, to remove the same. 

Such an ordinance, enacted in pursuance of legislative authority,, 
has 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 may not the 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 other 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 proceeding. 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 which 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 declaring 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. 

WalkSRj J. I am unable to concur in either the reasoning or 
conclusion announced in this opinion. 



. BALDWIN et al. v. SMITH. 
\ 
(Supreme Court of Illinois, 1876. 82 111. 162.) 

Mr. Justice BreUSE delivered the opinion of the court. 

This was trespass with force and arms, brou ght to the White cir- 
cuit court by Michael Smith, plaintiit, and agamst me town ot uray- 
ville and William F. Baldwin, the president, and Benjamin Batson 
and others, members of the town council, and Isaac H. Hamilton, con- 
stable of the town of Grayville, defendants. 



250 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 "comphed 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 
^nd 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) , ADMINISTRATIVE EXECUTION. 251 

revoke the license, and did revoke it, there their power ended. They 
had 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 salcroiras 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 jhdgment. 

The defense being based on this section of the ordinance, and that 
being invalid, Jhe 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 fhe 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 invahd, 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., 71 111. 193. * * * . 

Finding no error in the record, the judgment is affirmed. 

Judgment affirmed.* 

8 Part of the opinion Is omitted. 

See, also, Eddy v. Board of Health, 10 Phila. (Pa.) 94 (1S7.3). 

As to summary abatement, destruction, etc., under the police power, see, 
further, Salem v. Eastern E. Co., 98 Mass. 431, 96 Am. Dec. 650 (1868), ante, 
p. 150: Miller v. Hortou, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. 
St. Rep. 850 (1891), post, p. 535; Raymond v. Fish, 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. Ot. 101, 53 L. Ed. 195 (1908), post, p. 256. 



252 ADMINISTRATIVE POWER AND ACTION. (Part 1 

SECTION 31.— SAME— NOTICE BEFORE ABATEMENT 



COOPER V. BOARD OF WORKS FOR WANDSWORTH 

DISTRICT. 

(Court of Oommon Pleas, 1863. l4 C. B. [N.'S.] 180.) 

This was an action for pulling down a house of the plaintiff which 
was in the courser fff prprtinn. 

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 dlay -;' nntirp rn writ ing shall be given to the 
vestry or board by the person intending to build or rebuild such hous e 
or building or t " maVp cur-li rirairT * ' * * 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 drain or 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- 
meq, at a late. hour in the evening, and razed it to the ground. 

There was conflicting evidtence as to whether or not the plaintiff 
had given the notice, required by the seventy-sixth section of the 
Metropolis Local M'anagement 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) ADMINISTRATIVE EXECUTION. 253 

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. 

Eri,E, 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 
fheir 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 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 ous^ht to have g-iv.en-notiGe to th e plaintiff, 
and to have allowed him to be heard. The default in sending notice 
10 the b6ard oi 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 311), would be the mode of redress. But, if the 
Tiistrict 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) ADMINISTRATIVE EXECUTION. 255 

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 appHcable 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 ha,s 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 act^rl jprHn' ^Hy nr mmictpr^cilly I_ conceive they acted 
judicially, because they had to determine the offense, and they ha3~ 
"to apii)'ortion the pun ishment as well as the remed v. This bemg so, 
a long course ot 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 

» Only a portion of the opinions of Willes and Byles, JJ., are printed. 



256 ADMINISTRATIVE POWER AND ACTION. (Part 1 

that the rn rt ] ' °b3 ^^ h " T^ - - ^ ^'^ , y ^ t^ ^- j ugti ^ - p r »f t^^* rnmmQn lawjvill^ 

supply the_omissiQnj:»f-th€-I?€^:wktttfe * * * 
tule'dischar ged. ^ * 



NORTH AMERICAN COLD STORAGE CO. v. CITY OF 

CHICAGO. 

(Supreme Court of United States, 1908. 211 U. S. 30G, 29 Sup. Ct 101, 53 

L. Ed. 195.) 

r ^The case involved the question of the validity of sprtinn llfil nf the 
Revised Muni r ipnl Pn rl e of t hf City nf P ti ii .\' j _< i Un 1Pftr>, wimh n w l -i 
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 
human 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 employes 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." * * * 
PBckham, J.^^ * * * 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, 

•iit 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) ADMINISTRATIVE EXECUTION. 257 

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 eifectual. What is the 
emergency which would render a hearing unnecessary? 

We think w hen t he question is one regarding the destruction of food 
^hich is not nt tor numan use the emerg-enry must be one which would 
fairly appeal to the reasonable discretion nf the T-pgislatnrp as tn the 
necessity for a prior liparing anH in tVi ^t case its decision would nnt he. 
a subject for review by the cpnrts As the owner, nf the fnnd nr its 
custodian is amoly protected af^ainst the partv •sei 7tng thp fnnd, whr. 

must, in a SUbsean f"t anHn n ag-ainst him cVinw OS d fg^-f tVirif \f ^yoc 

within the statute, we thin k that due process of law is nnt denied the 
owner or custodian by the destruction of the fnndl alle p ^ed tn b^ "" - 
wholesome and unfit for human fn^H without n prr liminn ry hr n ri n [ j. 
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. 306-332, 26 
Sup. Ct. 100, 50 L. Ed. 204-311 ; Gardner v. Michigan, 199 U. S. 
335, 331, 36 Sup. Ct. 106, 50 L. Ed. 313, 316. 

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.^" 

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 v. 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). 

Pe.Adm.Law —17 



258 ADMINISTRATIVE POWER AND ACTION. (Part 1 



SECTION 32. — FORFEITURE BY A DMINISTRATIVE 

PROCESS 



WILCOX V. HEMMING. 

(Supreme Court of Wisconsin, 1883. 58 Wis. 144, 15 N. W. 435, 
46 Am. Rep. 625.) 

Orton, J.^^ JThis is an action nf renlevin. witVinnt; 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 
*-Df 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 juryi 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, f * * 

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 
f 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 L,egislature is amenable 
to this objection of unconstitutionahty, as well as the ordinance itself. 

18 Only a portion of the opinion of Orton, J., is printed. 



Ch. 6) ADMINISTRATIVE EXECUTION. 259 

The provisions of tlie chart6r 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 : Com. 
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, 30 111. 459, 83 Am. Dec. 201; Clark v.^Lewis, 35 111. 417; 
Case V. Hall, 21 111. 632 ; Friday v. Floyd, 63 111. 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 Obio, 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 proffect 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 ADMINISTRATIVE POWER AND ACTION. .(Part 1 

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 35 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 dteducts 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 
dio 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 
lone 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, andl 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) ADMINISTRATIVE EXECUTION. 261 

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- 
ishment 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 im- 
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 un- 
constitutionality. 

In Gosselink v. Campbell, 4 Iowa, 296, the general ordinance and the 
charter were very similar to this in evei;y 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 o,f 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, 45 111. 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. * * * The city 
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 arid municipal regulations providing for summary proceed- 
ings without trislT-for the abatement of nuisances of a public character, 
involving the destruction or forfeiture of things inanimate, are not as 



262 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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.^* 



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 h- 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 jiets w ere the property of the plain- 
tiffs, and were taken away by the defendant Steele, and destroy ed. At 

11 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 p. 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 talte 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. Ot. 349, 356, 48 L. Ed. 525 (1904). 



Ch. 6) ADMINISTRATIVE EXECUTION. 263" 

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, ^^ after stating the facts in the foregoing lan- 
guage, delivered the opinion of the court. 

This case involves the constitutionalitv of an act of the Legislature_ 
of the state o f New York known as chapter 591, Laws JNI. Y. 1880, as 
amendedty cha pter 317, Laws N. Y. 1883. entitled "An act for the' 
""^jppuiuUiieiiL ui game an d fish protector s." * * * 

.By thfe_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 ab ated and summarilv destroyed bv anv person, and it shall 
be tlie 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 

IS Only a portion of the opinion of Brown, J., is printed. 



264 ADMINISTRATIVE POWER AND ACTION. (Part 1 

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 onlv real, difficulty connected with the act in question , 
is in its declaration that any net, etc., maintained in violation of an y 
law 'for the protection of fisheries is to be treated as a public nuisance, 
"' and mav be abated and summarily destroyed by any person: and It" 
shall be the duty of each and every protector j joresaid and every ^amg 
constable, to seize, remo v e, and forthwith destroy the sarne /^ 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 deti4mental to the interests of the 
pubHc, 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 illegar 'purp^gp I'a .-l^ar^ 
Ttnj LLgibUlUie may declare it to be a nuisance, and subject to sum- 



mary abatement. Inslances-ef-this-. a re the p ower to kill diseased 
" cattle; to pull down houses in the path of conflagrations: the de- 
struction ot deca yed frui^o r nsh or~unwh6Iesome meats. of_ infected_ 
^clothing, obscene~books or pictures, or ins truments which can only 
^be juseg' for iri^garp ilfposes." While the Legislature haTnoTright ar- 



Ch. 6) ADMINISTKATIVE EXECUTION. 265 

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, 13 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 t he line between cases wh ere property il - 
legally used may be des troyed summarily and where ludlcial pro- 
ceedings are necessary tor its condemnation. If the property were of 
great value, as, tor instance, it 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 film 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 w as but $15 apiece. T he cost of 

^condemning one (and the use of one is as illegal as llie use of a dozen) 
by judicial proceedings would larg ely exceed the value of the net, an d 
doubtless the state would, i n many cases, be deterred from executing 

the law by the expefl^ie'. In^c ould only be removed from the wa - 
ter with diffi culty, and were liable to injury in the process of renioval . 
Th6 object of t he law is undoubtedly a beneficent one, and the state 
ought not to be hampered in its enforcement by the application of con- 

^stitutional pfOvisions which a re intended tor the protection of sub- 
s taii Lial ri^hia of p f6perty. it is evident that the efficacy of this stat-" 
ute would fa e very seriously impaired by requiring every net illegally 
used to De careiuily taken trom the water, carried before a court or 
""magistrat e, notice of the seizure to be given by publication, and reg- 
ular judicial pro ceedings to be instituted for its condemnation. _ 
■ Thfife 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. 540, 8 Sup. 



266 ADMINISTRATIVE POWER AND ACTION. (Part 1 

Ct. 1301, 33 L. Ed. 333, and cases cited. So. the summary abate- 

ment of nuisances without judicial processorp roceeding' was w ell 

— known-tcrthe common law long prior toihe adop tion of the constitu- 

tioti, and it has never been suppos ed that the constitutional provision 

"in question in this case was intended to interf ere with the established 
principles m tnat regard. " 

, Nor is a person whose property is seized under the act in question 
without his legal remedy. 1^, m fact, his property has-been used in 
violation ol the act, ke has no just reason to complain ; if not, he may 

• replevy his nets irom the omcer seizing them-, o rTif they have been 
' destroyed, may have his action lor tti eir value , in such cases the 
burden would De 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, 31 N. J. Law, 348, 359)-: 
"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 then> 
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 p'Ut to an illegal use, since it may be as readily used for a 
lawful purpose (Ely v. Supervisors, 36 N. Y. 397) ; 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 deJDrive 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. 393, 13 N. E. 
610, 60 Am. Rep. 453) ; 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, 43 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 construe- 



Ch. 6) ADMINISTRATIVE EXECUTION. 267 

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 hatching 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. leck 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. 306, 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." 

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 Fuli,er (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 rnanner 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 abatement 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. Orangle, 62 Ohio St. 49, 56 N. E. 647 (1900) ; Dunn 
V. Burleigh, 62 Me. 24 (1873). 



268 ADMINISTRATIVE POWER AND ACTION. (Part 1 

as weakening the importance of the preservation, without impairment 
in ever so sHght a degree, of constitutional guaranties. 

I am, therefore, constrained to withhold my assent to the judgment 
just announced, and am authorized to say that Mr. Justice Field and 
Mr. Justice Brewer concur in this dissent.^^ 

IT CSompare Colon v^ Llsk, 153 N. T. 188, 47 N. B. 302, 60 Am. St. Rep. 609 
(1897). 

See, also, Fisher v. MoGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381 (1854) ; 
Lincoln v. Smith, 27 Vt. 328 (1855); Bridge Street, etc., Co. v. Hogadone, 
150 Mich. 638, 114 N. W. 917 (1908) ; Preund, Police Powers, §§ 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.) 

Foi,GER, J.^ The plaintiff has 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 held 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 
the 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 tnder 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 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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 $300, 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 
pi'otects 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 jud^; 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) ACTIONS TO RECOVER DAMAGES OR MONET. 271 

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. Ill, 9; 9 Edw. IV, 3) are cited in Floyd v. Barker, 13 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 Jie 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, L,utw. 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 dififerent modies of stating the principle 
there abides a quahfication. 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 most 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, jtirisdiction of the person to whom he addressed the order. 
On the other hand, one rightfully holding a court for the trial of a 
criminal action 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 BELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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- 
ment 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 which, 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 have 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 
months, 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) ACTIONS TO RECOVER DAMAGES OR MONET. 273 

And because the defendants had power to hear and punish, and to fine 
and imprison, it was field 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 couirt, 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 
poinish 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. 
Fk.Adm.Law— 18 



274 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 3 

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 
bei 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" (13 Mod. 381, 
393) ; 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." 3 Mod. 318. 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) ACTIONS TO KECGYER DAMAGES OR MONEY. 275 

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 erroneoiis. 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. 533, 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 
j.udicial 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 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

The judgment of the General Term should be affirmed. All concur, 
except Andrews, J., absent. 
Judgment affirmed.^ 



GROVE V. VAN DUYN. 

(Court of Errors and Appeals of New Jersey, 1882. 44 N. "J. Law, 654, 43 

Am. Eep. 412.) 

BeasIvEY, 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 commitment, or 
for an erroneous judgmerit, or for any other act made 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 
matter 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 L,ittle 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 everyvfhere 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 v/ay, 
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, (2d Ed.) p. 275, and espe- 
cially Kemp V. Neyille, 10 C. B. (N. S.) 523 (1861). 

American oases: Yates v. Lansing, 5 Johns. (N. Y.) 282 (1809); Randall 
V. Brigham, 7 "Wall. 523, 19 L. Ed. 285 (1868) ; Bradley v. Fisher, 13 Wall. 
335, 20 L. Ed. 646 (1871). 



Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONEY. 277 

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 tlie Peace, §§ 36, 37, 39. 



278 RELIEF AGAINST ADMINISTBATIVE ACTION. (Part 2 

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, 
30 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. 7) ACTIONS TO RECOVER DAMAGES OR MONET. 279 

merit. 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 oificer.* It woujd 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 thi^ 
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 which 
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 
su.-.h 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 

* See Tracy v. Williams, 4 Conn. 107, 10 Am. Dec. 102 (1821). 



280 BELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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 
^n 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 lEEEGAUTY 



MOSTYN V. FABRIGAS. 
(Court of King's Bench, 1774. Oowp. 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 

B 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 ju(iges liable in damages. 

(4) If there is denial of justice. 

Decisions of German Imperial Court, vol. 38, p. 338: 

A judge in deciding causes niust 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 deprived of the in- 
dependence indispensably necessary to the performance of his functions. 

« The statement of facts and portions of opinion are omitted. 



Ch. 7) ACTIONS TO KECOVER DAMAGES OR MONEY. 281 

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 
plaintiiif 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 BELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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 per.son as governor. If it were true that the law makes 
him that sacred character, he must plead it and set forth his cominis-. 
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 
he 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) ACTIONS TO RECOVER DAMAGES OR MONEY. 2S3 

process he would be subject to imprisonment.'' But here the injury 
is said to have^ happened in the Arraval of St. PhilUp'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 pi'oper 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 hght 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, 3 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 BELIEF, AGAINST ADMINISTRATIVE ACTION. (Part 2 

here against a governor of Jamaica, for an imprisonment here, arid 
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 ougjit 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 th^t 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 i500. damages. * * * 

Judgment affirmed.* 



BASSETT V. GODSCHALi; et al. 
(C!ourt of Common Pleas, 1770. 3 Wilson, 121.) 

Action on the case for refusing to receive from plaintifiE a certificate 
of character tendered upon an application for a license to keep a coin- 
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. O. 272, 282, 283. 

As to statutes for protection of officers, see Chltty, Pleading, I, 545, 546; 
Public Authorities Protection Act, 1893, 56 & 57 Vict. c. 61. 

Compare Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537 (1827), post, p. 548- 
Wise V. Withers, 3 Cranch, 331, 2 L. Ed. 457 (ISOi). 

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, see 
Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,411 (1811), which was, 
however, dismissed on a point of venue. 

For actions against heads of departments, see Kendall v. Stokes, 3 How. 
87, 11 L. Ed. 506 (1845), and Spalding v. Vilas, 161 U. S. 483, 16 Sup. Ct 631, 
.40 L. Ed. 780 (1896); also 5 Ops. Attys. Gen. 759 (1823). 

9 As to criminal liability, see Rex v. Williams, 3 Burr. 1317 (1762) ; People 
v. Norton, 7 Barb. (N. X.) 477 (1849). 



Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONET. 285 

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.^" 



PARTRIDGE v. GENERAI. 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 
who 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 oi being heard. When the 
case came before us on the previous occasion,^^ the question then 
being whether he was wrongly struck off the register, we said they 
had 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 v. McOuUough, 68 Ind. 179 (1879). 

11 See Ex parte Partridge, 19 Q. B. D. 467 (1887). 



286 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 3 

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) ACTIONS TO RECOVER DAMAGES OR MONEY. 287 

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.^'' 



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 term, 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 ttiat 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 BELIEF AGAINST ADMINISTRATIVE ACTION. (Part S 

some ground on which the defendant, who had acted fairly and bona 
fide, might escape. This HabiHty 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 veiry 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.^^ 
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 
malice. 

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 desaription, 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." 

18 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) ACTIONS TO RECOVER DAMAGES OR MONET. 289 

Is it not a little extraordinary that, when the L,egislature 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 removed, 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 thiiig, 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- 
Fr.Adm.Iiaw — 19 



290 BELIEF AGAINST ADMINISTKATITE ACTION. (Part 2 

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.^* 



UNCOIvN 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, 1813, 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, 

1* 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) ACTIONS TO RECOVER DAMAGES OR MONET. 291 

. 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 df 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.^^ 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 ]V[ass. 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 
(Kilham 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 

1 5 Only a portion of this ease is printed. 



292 BELIEF AGAINST ADMINISTRATIVE ACTION. (Part 3 

j udicial 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 whole court. But 'long reflection upon the subject, and the rea- 
soning of those of my Brethren who have inclined to the opposite opin- 
ion, have 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 comjjensation, 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 againlst 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 decision 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 who 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 
raiik 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. 7) ACTIONS TO EECOVBK DAMAGES OR MONEY. 293 

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 ejdst 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 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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 tothe 
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, andl, 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.^* 



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 Edmionds, 
one of the judges of the Court of Common Pleas of the county of 

18 See Kinneeii v. Wells, 144 JIass. 407, 11 N. B. 916, 59 Am. Rep. 105 (1887). 

Accord: Jeffries v. Ankeny, 11 Ohio, 372 (1842) : "Wheu we reflect how 
highly the privilege of voting Is generally valued, and that the Legisliiture 
has provided and the forms of law admit no other remedy than this action, 
u-e unite in the opinion that a necessity exists for entertaining this remedy." 



Ch. 7) ACTIONS TO EBCOVER DAMAGES OE MONBT. 295 

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. ^^ 

Spencbr, 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 i"elied on by the counsel for the defendant in 
error is that of Ashby v. White, 2 Ed. 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 gi^ound 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. Pari. Cas.> (1st Ed.) 49. 

The case of Harman v. Tappenden and Others, 1 East, 55-5, 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 
Wils'on's opinion in Drewy v. Coulton with approbation. In that case 
the suit was fpr refusing the plaintiff's vote. Justice Wilson considered 

17 The statemetit of facts Is abridged. 



296 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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.^* 



WHEEIvER V. PATTERSON. 

(Superior Court of Judicature of New Hampshire, 1817. 1 N. H. 88, 8 Am. 

Dec. 41.) 

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 moderator 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 maliciously, 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.^° 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, 655, 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 Ld. 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. 

18 Only a portion of the opinion by Richardson, C. J., is printed. 



Ch. 7) ACTIONS TO RECOVER DAJiIAGES OR MONEY. 297 

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, no 
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 moderators, 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 mide 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 tdx 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 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 3 

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 betore 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, § 
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. 7) ACTIONS TO RECOVER DAMAGES OR MONEY. 299 

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. Freemin, 9 Wend. 42, 34 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 embracipg 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 tp 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, 
thbugh they may err in point of law or in judgment, they should 
not be either civilly or criminally 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 plaintifif 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 
forrect any erroneous proceeding not concluded by an adjudication 



300 EEHEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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 upop 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. 43, 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 Joihns. 
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. I agree 
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 has 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 was 
one of judgment in the lawful exercise of it. Thompson and Rad- 
cHff, Justices, dissented, and held the assessors and collector Hable, 
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. 



Ch. 7) ACTIONS TO EECOVEE DAMAGES OR MONEY. 301 

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 
has 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."" * * * 

Judgment reversed."^ 



DOWNER V. LENT. 
(Supreme Court of California, 1^6. 6 Cal. 94, 65 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 rights, 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 sum 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 In McLean v. Jephson, 123 N. Y. 
142, 25 N. E. 409, 9 L. R. A. 493 (1890), post, p. 556 ; also, Rooke v. Withers, 
5 Coke Rep. 99b (1598) ; Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145 
(1816), post, p. 334. 



302 BELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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 HeydbnfbldT. 
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, pubHc policy de- 
mands 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. 

(Supreme Court of Wisconsin, 1866. 20 Wis. 544.) 

Downer, J.^^ * * * 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,^' and, if he takes it, to receive his vote. If he swears 
falsely, or votes without the requisite quahfications, 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 efCect 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, 
aiid has not made, or become interested in, any bet or wager depending upon 
the result of the election. 



Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONEY. 803 

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 mahce, 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. 360; Blanchard v. Stearns, 
5 Mete. (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 oij the state statute 
law regulating elections, as being different from the English 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.-* 



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 
through plaintiff's land and flows off it near where it enters thereon; 
that a piiblic 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 ©pened, 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 minls.terial duty, see Amy v. Supervisors, 11 Wall. 
136, 20 L. Ed. 101 (1870), post, p. 432; Strickfaden v. Zippriclc, 49 111. 286 

(18G8).. 



304 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

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 offlcer 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.^ ° 

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 coDnmand. 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 

25 The statement is abridged, and the opinion of Beclj, J., is omitted. 



Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONET. 305 

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 inust 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 mill 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 wSiter? 

I think not. And this view has the merit of protecting the rights 
Fk.Adm.Law — ^20 



306 BELIEF AGAINST ADMINISTEATIVB ACTION. (Part 2 

of property without, as I think, placing these officers under any op- 
pressive responsibihty. Cases without merit against an officer who 
had simply erred in judgment would not meet with any favor from 
either courts or juries. 
Reversed.^^ 



LOWE V. CONROY. 

(Supreme Court of Wiscouslu, 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 arid 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, 29 111. 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 beii^g 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 of 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, 254, 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 selectnien, 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 And they have not, It Is not tJieir 



Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONEY. 307 

from an ailment unknown to him, but supposed to have resulted from 
drinking water containing piaris 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 thei'e 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 .iudiciously 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 privjite 
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 not 
enough to charge or show that they omitted to act when thev ought to have 
done so, or that their decisions were erroneous. Tealy v. Fink, 43 Pa. 212, 
82 Am. Dec. 556; • McConnell v. Dewey, 5 Neb. 389: Downer v. Lent, 6 Oal. 
94, 65 Am. Dec. 489 ; Waldron v. Berry, 51 N. H. 136 : Stewart v. Southard, 
17 Ohio, 402, 49 Am. Dee. 463 ; Dunlap v. 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 III. App. 209 (1886) ; 
Worden v. Witt, 4 Idaho, 404, 39 Pac. 1114, 95 Am. St; E.ep. 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 Md. 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. Gohin (C. C.) 94 Fed. 48 (1899), duty of sheriff toward person spe- 
'cially placed in his custody. 



308 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 3 

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 hides 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 6th, 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 sjrmptoms 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 beli,eved 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- 
suondent's property upon the authority vested in the board of health 
for the adoption of such measures to abate nuisances and remove 



Ch. 7) ACTIONS TO EECOVEE DAMAGES OK MONEY. i!09 

sources of filth and causes of sickness as may be deemed most 
effectual to preserve the public health. By seption 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 appeararjce 
of contagious and malignant diseases, which are liable to spread and 
become epidemic, causing destruction of human life. Under such cir- 
cumstances it has been held that the Legislature under the police 
power can rightfully grant to boards of health authority ta 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. 236, 23 N. E. 878, 7 L. R. A. 



310 EELIEF AGAINST ADMINISTRATIVE ACTION. (Part 2 

134, 16 Am. St. Rep. 813; Id., 152 U. S. 133, 14 Sup. Ct.- 499, 38 
Iv. Ed. 385. 

The power to summarily abate miisances 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 anirnals 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 cause 
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 ca:ses, 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. 



Ch. 7) ACTIONS TO EECOVBR DAMAGES OE MONEY. 311 

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, 33 Am. Rep. 303; 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. 33, 
39 N. E. 833, 27 L- R. A. 710, 45 Ani. St. Rep. 579, and cases; 
City of Orlando v. Pragg, 31 Fla. Ill, 13 South. 368, 19 h. 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 : 'Tn carrying oyit the laws for the preservation 
of the public health the city is performing a duty which it owes to the 
whole pubHc 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 derives 
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 RELIEF AGAINST ADMINISTRATIVE ACTION. (Part 3 

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, 83 Wis. 372, 52 N. W. 
178. 

The facts and circumstances show, however, that respondent's 
private property rights have been unjustifiably invaded, and, that, 
tmless 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. 481, 74 N. W. Ill, 42 L. R. A. 39; 
Cubit V. O'Dett, 51 Mich. 347, 16 N. W. 679 ; Miller v. Horton, 153 
Mass. 541, 26 N. E. 100, 10 D. R. A. 116, 23 Am. St. Rep. 850; 
Pearson v. Zehr, 138 111. 48, 39 N. E. 854, 33 Am. St. Rep. 113; 
McCord V. High, 34 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 Path v. 
Koeppel, 73 Wis. 389, 39 N. W. 539, 7 Am. St. Rep. 867. 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 act^s 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 damages 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- 



Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONET. 313 

tion" — citing, among the authorities in support of this proposition, 
Raymond v. Fish, 51 Conn. 80, 60 Am. Rep. 3." 

The decision arose on dem,urrer, 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 him 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."* 



23 



2 7 In Raymond v. Fish, 51 Conn. 80, 99, 50 Am. Rep. 3 (1883), an action to 
recover damages for tlie 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 a 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 detaUed 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 

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. T. 140 (1870) ; Miller v. Horton, 152 



314 BELIEF AGAINST ADMINISTRATIVE ACTION. (Part 3 

SECTION 35.— SAME— AGAINST FEDERAL OFFICERS 



TRACY V. SWARTWOUT. 
(Supreme Court of United States, 1836. 10 Pet. 80, 9 L. Ed. 354.) 

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 he 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. 

2 9 The rest of the statement of facts and a portion of the opinion are omit- 
ted. 



Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONEY. 315 

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 enforcement 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; aftd 
in this they were unquestionably correct. The Secretary of the 
Treasury is bound by the law; and although, in the exercise of his 
discretion, he may adopt necessary forms and modes of giving ef- 
fect to the law, yet neither he nor those who act under him can dis- 
pense with, or alter, a'ny of its provisions. It would be a most 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 affor,d 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 



3l6 RELIEF AGAINST ADMINISTRATIVE ACTION, (Part 2 

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, ^fter 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 no eventual hardship. 
The judgment of the Circuit Court must be reversed, and the cause 
remanded to that court for further proceedings. 

Judgment reversed,*" 



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. Xhe 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 assiunpsit 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: *^ 

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 

so Compare Averill y. 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) ACTIONS TO RECOVER DAMAGES OR MONEY. 317 

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 Green way 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 BELIEF A.GAINST ADMINISTRATIVE- ACTION. (Part 3 

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 money 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 cgndition, etc. 

From this view of the cases, it may be assumed as the settled doc- 
trine of the law that, where money 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. * * * 



GARY V. CURTIS. 
(Supreme Court of United States, 1845. 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. ^^ * * * 

It has been urged that the clause of the act of 1839-^^ declaring 

32 Only a portion of the opinion is printed. 

3 3 "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 ^s 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 BELIEF AGAINST ADMINISTEATIVE ACTION. (Part 3 

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 t