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Drion, Jan
1950.
Administratie Contra Rechter.
p.
1.
Article contents
Judicial Control of Official Discretion
Published online by Cambridge University Press: 01 August 2014
Extract
When men reflect about government, whether practically or academically, they always turn up, if they think deeply enough, two central problems: first, how to ensure that government shall do what it is supposed to do, and secondly, how to ensure that it shall not do other things. One is the problem of efficiency, the other the problem of control; and around the two is built most, perhaps all, of the so-called science of politics. At some periods the need for control seems the more vital and pressing. It seemed so to Englishmen, for example, during the two centuries following the accession of the Stuarts. At other times and places the pendulum has swung in the opposite direction, and in fifteenth century Europe, as in contemporary Italy, the dominant desire was for government strong enough and untrammelled enough to stem successfully a rising tide of disorder. Each age strikes its own balance in favor of one principle or the other, and thereby touches the opposite principle into action to redress the balance at some new point of readjustment.
The competing claims of efficiency and control have often expressed themselves in the form of controversy concerning the comparative merits of government by discretion and govern-ment by law—or, in Harrington's phrase, a government of laws and a government of men. In this form the conflict has left its mark everywhere on political thought since Aristotle. Discretion means freedom for government to choose among possible alternatives of action. As one judge has said, “In honest plain language it means ‘Do as you like.’” It is thus a condition of efficiency, but it is very apt to exact the price of arbitrariness. Law, on the other hand, requires that government shall act by set rule, shall limit itself to a particular way of acting in each particular situation. It seeks to eliminate choice in favor of certainty; it narrows the possible range of governmental action in order that such action may be predicted and controlled in advance.
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References
1 Cf. Munro, W. B., “The Pendulum of Politics,” Harper's Magazine, May, 1927Google Scholar, and The Invisible Government (New York, 1928), pp. 58 ffGoogle Scholar.
2 Vice-Chancellor Bacon in In re Norrington, 13 Ch. Div. 659. “The term discretion implies the absence of a hard and fast rule. The establishment of a clearly denned rule would be the end of discretion,” Norris v. Clinkscales, 47 So. Car. 488.
3 Collected Legal Papers (New York, 1920), p. 239Google Scholar.
4 Nicomachean Ethics, v. 10, 4, 6 (1137b)Google Scholar.
5 Politics, III, 16, 4, 5 (1287a)Google Scholar.
6 Wallace, William Kay, The Passing of Politics (New York, 1924), pp. 275–276Google Scholar.
7 Dicey, A. V., Law of the Constitution, 8th ed. (London, 1915), p. 189Google Scholar.
8 Morgan, J. H., introduction to Robinson, Gleeson E., Public Authorities and Legal Liability (London, 1925), pp. xlix–liGoogle Scholar.
9 Campbell, , Lives of the Chancellors, II, 237Google Scholar.
10 See my Administrative Justice and the Supremacy of Law (Cambridge, 1927), p. 234Google Scholar.
11 American Political Science Review, I, 592Google Scholar.
11a “At the same time” [i.e., after the middle of the nineteenth century] “we had developed a system of judicial interference with administration. Law paralysing administration was an everyday spectacle. Almost every important measure of police or administration encountered an injunction. We relied on taxpayers' suits to prevent waste of public funds and misuse of the proceeds of taxation. In many jurisdictions it was not uncommon to see collection of taxes needed for the everyday conduct of public business restrained by injunction ….. We seemed to have achieved in very truth a Rechtsstaat. Our government was one of laws and not of men. Administration had become ‘only a very subordinate agency in the whole process of government.”” Dean Roscoe Pound, “Organization of the Courts,” printed in Bulletin of American Judicature Society, number 6, at p. 2.
12 State v. Hopkins, 12 Wash. 602; San Francisco Co. v. Brickwedel, 62 Cal. 641; Shaw v. Statler, 74 Cal. 258.
13 Bd. of Supervisors of Richmond County v. Ellis, 59 N. Y. 620; Mixer v. Manistee Co., 26 Mich. 422; Miller v. Embree, 88 Ind. 133; Ferry v. King's County, 2 Wash. St. 337.
14 Evansville v. Decker, 84 Ind. 325; Seaman v. Marshall, 116 Mich. 327; Ashley v. Port Huron, 35 Mich. 296; Louisville v. Norris, 111 Ky. 903.
15 Gould v. Topeka, 32 Kans. 485; Dayton v. Pease, 4 Ohio St. 80; Prideaux v. Mineral Point, 43 Wis. 513.
16 “In planning public works a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving the public more complete protection; for that would be to take the administration of public affairs out of the hands to which it has been entrusted by law.” Cooley, C. J., n Lansing v. Toolan, 37 Mich. 152.
17 See Craig v. Leitensdorfer, 123 U. S. 159; Decatur v. Paulding, 14 Peters, 497; Public Clearing House v. Coyne, 194 U. S. 497.
18 United States v. Ferreira, 13 Howard 40; Gordon v. United States, 2 Wall. 561. See my Administrative Justice and the Supremacy of Law, p. 48.
19 Ibid., p. 43.
20 Judicial review also occurs in two situations which for the purposes of this paper it is not necessary to distinguish from review in actions for damages: (1) where the administrative agency must enforce its action through proceedings in the courts; and (2) where the administrative agency is allowed to sue for the expense of executing an order after its non-observance by the person to whom it was directed.
21 See Miller v. Horton, 152 Mass. 540.
22 See Robinson v. Workington Corporation (1897) 1 Q. B. 619; Boynton v. Ancholme Drainage and Navigation Commissioners (1921), 2 K. B. 213; Atchison v. Challis, 9 Kans. 603; Peoria v. Eisler, 62 111. App. 26.
23 Urquhart v. Ogdensburg, 91 N. Y. 67.
24 Todd, , Parliamentary Government in England, 2d ed., vol. I, pp. 494–95Google Scholar. This doctrine is a survival which points back to an illuminating historical development. It used to be said on the authority of Y. B. 33–35 Ed. I (Rolls Series) 471, that “in old times every writ, as well of right as of possession, would lie against the king,” Ehrlich, Ludwick, Proceedings against the Crown, 1216–1377, p. 54Google Scholar, in Vinogradoff, , Oxford Studies in Legal and Social History, Vol. VI (Oxford, 1921)Google Scholar. To same effect Mirrour of Justices (ed. Maitland, 1893) Bk. I, chap. 3; so also Comyn's Digest (4th ed. by Kyd, Dublin, 1793), Vol. I, tit. “Action,” C i, p. 140: “Until the time of Edward I, the king might have been sued in all actions as a common person.” We now know differently. “There were no writs against the king. We are told so by Bracton,” fol. 5b, 171b (Ehrlich, op. cit., p. 26). “Throughout the reign of Henry III we see the principle constantly applied that whatever touched the king must be determined before him” (ibid., p. 23). Furthermore, “in the time of Henry III the king's servants, if their acts which they claimed to be official were complained of, could not be proceeded against in the ordinary way except by the king's permission (special or general). For, right or wrong, their acts were the king's acts and as such could be complained of within the realm only to the king, or to bodies appointed by him for this purpose …. But …. the king was gradually waiving his privilege with regard to the lower officials” (ibid., pp. 110–11). Thus, for example, the Statute of Westminster, II, c. 13, “provided that persons illegally imprisoned by sheriffs should have their action by writ of false imprisonment, as they would have it against any other person” (ibid., loc. cit.). The original theory survives in the doctrine that the acts of certain high officials are still the acts of the crown, and so exempt from liability.
25 Foster v. Neilson, 2 Peters. 253.
26 Martin v. Mott, 12 Wheaton 19; Ela v. Smith, 5 Gray (Mass.) 121.
27 Lane v. Cotton, 1 Lord Raymond, 646, s. c. 12 Mod. 472; Bainbridge v. Postmaster General (1906), 1 K.B. 178.
28 Queen v. McCann (1868), L.R. 3 Q. B. 677.
29 Gilbert v. Trinity House (1886), 17 Q. B. Div. 795. Cases covering the subject matter of this paragraph are reviewed in detail in Gleeson E. Robinson, Public Authorities and Legal Liability, Chap. II. Some confusion results in Dr. Robinson's treatment from an apparent failure to distinguish between liability in contract and liability in tort; but see Todd, loc. cit., note 21 supra.
29a Cf. Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554.
30 American and English Encyclopedia of Law, 2d ed., vol.23, p.375Google Scholar; Goodnow, Principles of the Administrative Law of the United States (New York, 1905). p. 399Google Scholar.
31 Glossop v. Heston and Isleworth Local Board (1879), 12 Ch. Div. 102; see also Robinson v. Workington Corporation (1897), 1 Q. B. 619.
32 Foster v. Warblington Urban District Council (1906), 1 K. B. 648.
33 Boynton v. Ancholme Drainage and Navigation Commissioners (1921), 2 K. B. 213.
34 For an elaborate review of the cases on the subject of this paragraph, see Robinson, op. cit., Chap. IV. For a similar distinction in the United States cf. Wilson v. Mayor, 1 Denio (N. Y.) 595 and Mayor v. Furze, 3 Hill (N. Y.) 612. In the United States the distinction has come to be confused with that between “judicial” and “ministerial” functions (see infra): Bates v. Westborough, 151 Mass. 174; Blizzard v. Danville, 175 Pa. St. 479.
35 Seaman v. Patten (N. Y. 1805), 2 Caines, 312; Easton v. Calendar (N. Y., 1833), 11 Wendell 90; Downer v. Lent (1856), 6 Cal. 94; Fath v. Koeppel, 72 Wis. 289. These cases rest apparently on a suggestion of Sir Matthew Hale in Terry v. Huntingdon, Hardres, 480, as limited by Lord Holt in Groenvelt v. Burwell, 1 Ld. Raymond 454. A strong statement of the doctrine is found in Wilson v. Mayor, 1 Denio (N. Y.) 595 (1845). There a municipal corporation in grading two public streets, which formed an angle in which plaintiff's property was situated, raised the level of those streets so as to prevent the water from flowing off, whereby damage ensued to the plaintiff, who brought an action of trespass on the case against the corporation. It was held that the action could not be sustained: “Where a duty judicial in nature is imposed upon a public officer, a private action will not lie for misconduct or delinquency even if corrupt motives are charged. The same principle prevails where the party on whom the duty devolves, though not a judge, is clothed with discretionary powers to be exerted according to his sense of fitness or propriety. If such officers act corruptly, they are liable to impeachment or indictment.” So in American Print Works v. Lawrence, 23 N.J.L. 590 at 600 (1851), the act of a mayor in ordering the destruction of buildings to prevent the spread of a conflagration was treated as “judicial.”
36 Sometimes it led to marked confusion in the minds of the courts. See, for instance, Ferry v. King's County, 2 Wash. St. 337, where the court reasoned that since the state constitution vested “judicial power” in a system of courts, the action of an administrative agency could not be “judicial” and therefore must be subject to re-examination and liability in the courts.
37 Ela v. Smith, 5 Gray (Mass.) 121.
38 Johnston v. District of Columbia, 118 U. S. 19.
39 Mills v. Brooklyn, 32 N. Y. 489.
40 Gray, J., in Johnston v. District of Columbia, supra.
41 See my Administrative Justice and the Supremacy of Law, pp. 15–25.
42 Ibid., pp. 106–108, note.
43 See the language of the opinion in Green v. Mayor (1849), 6 Ga. 1.
44 The courts have sometimes frankly referred to them as such, e.g., in United States v. Commissioner, 5 Wall. 563; Johnson v. Towsley, 13 Wall. 72.
45 See language of the court in Steenerson v. Great Northern R. Co., 353 at 737, quoted in my Administrative Justice and the Supremacy of Law, pp. 72–73; Granville v. Gregory, 83 Mo. 123, in ibid., pp. 60–61; and White, C. J., in United States v. Louisville & Nashville R. Co., 235 U. S. 314, in ibid., p. 162.
46 Ibid., p. 72, note.
47 Ibid., pp. 248–250.
48 152 Mass. 540; Lowe v. Conroy, 120 Wis. 151.
49 Supra, p. 286.
50 Compare the general effect of such cases as Van Wormer v. Mayor (N. Y., 1836), 15 Wendell, 262; Green v. Mayor (1849), 6 Ga. 1; Downer v. Lent (1856), 6 Cal. 94; Cary v. Curtis (1845), 3 How. 236.
51 McCord v. High (1868), 24 la. 336; Cubit v. O'Dett, 51 Mich. 347; Mechem on Public Officers, §642.
52 In the cases cited in the last note, the ground of liability alleged was the absence of any other remedy for the redress of the injury to private rights.
53 Sir Matthew Hale in Terry v. Huntingdon, Hardres 480; cf. case of the Marshalsea, 10 Coke Rep. 68b; Hill v. Bateman, Str. 711; Shergold v. Holloway, Str. 1002.
54 Terry v. Huntingdon, supra; Groenvelt v. Burwell, 1 Lord Raymond 454, also reported in 1 Salkeld 263 and 12 Modern 386.
55 Baldwin v. Blackmore, 1 Burr, 595; Cripps v. Durdin, Cowp. 640; Groome v. Forrester, 5 M. & S. 314; West v. Smallwood, 3 M. & W. 420.
55a Miller v. Seare, 2 Wm. Bl. 1145; Perkin v. Proctor, 2 Wilson 283: “where there is no jurisdiction, there is no judge.”
56 Calhoun v. Little, 106 Ga. 336; Thompson v. Jackson, 93 Iowa 376; Robert son v. Parker, 99 Wis. 652; Beu v. McKinney, 62 Miss. 187.
57 Grove v. Van Duyn, 44 N. J. L. 654; Cave v. Mountain, 1 M. & Gr. 257; but in many cases no such distinction appears to have been drawn. See also Gwynne v. Poole, 2 Lutw. 387; Kemp v. Neville 10 C.B. (N.S.) 523 at 550; Britton v. Kinnaird, 1 B. & B. 432.
58 Lange v. Benedict, 73 N. Y. 12 at 33; see especially pp. 27–31. See also Hunt v. Hunt, 72 N. Y. 217 at 229: “Jurisdiction of the subject matter is power to adjudge concerning the general question involved and is not dependent upon the state of facts which may appear in a particular case under that general question.” “A magistrate who commits a party in a case where he has not any jurisdiction is liable to an action of trespass; but if the charge be of an offence over which, if the offence charged be true in fact, the magistrate has jurisdiction, the magistrate's jurisdiction cannot be made to depend upon the truth or falsehood of the facts, or upon the evidence being sufficient or insufficient to establish the corpus delicti brought under investigation,” Selwyn's Nisi Prius (7th Amer. from 11th London ed., Phila., 1857), vol. II, p. 920, citing Cave v. Mountain, supra; Rex v. Bolton, 1 Q. B. 75.
59 This view was rejected by Lord Holt in Groenvelt v. Burwell, 1 Lord Raymond, 454. It was applied by Lord Kenyon in Warne v. Varley, 6 Durnford & East 443, because of the special wording of a statute.
60 Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88. For use of the doctrine of “jurisdictional fact” to reach a desirable result, Bee Ng Fung Ho v. White, 259 U. S. 276.
61 Groenvelt v. Burwell, 1 Lord Raymond, 454.
62 See Degge v. Hitchcock, 229 U. S. 162, where the Supreme Court said: “It is true that the postmaster-general gave notice and a hearing to the persons specially to be affected by the order, and that in making his ruling he may be said to have acted in a quasi-judicial capacity. But the statute was passed primarily for the benefit of the public at large, and the order was for them and their protection. That fact gave an administrative quality to the hearing and to the order, and was sufficient to prevent it from being subject to review by writ of certiorari.”
63 Decatur v. Paulding, 14 Peters, 497.
64 But for a willingness to employ the writ in a proper case, see Board of Dental Examiners v. People, 123 111. 227; State Board v. White, 84 Ky. 626; State v. Adcock, 206 Mo. 550.
65 “A judge ought to act conformably to law and not according to discretion,” Comyn's Digest (4th ed., by Kyd, Dublin, 1793), vol. IV, p. 435, tit. “Justices,” I, i.
66 See my Administrative Justice and the Supremacy of Law, pp. 200–202.
67 Compare the remarkable decision in Ben Avon Borough v. Ohio Valley Water Co., 253 U. S. 287 (1919), where the Supreme Court apparently held that court review on the facts is a matter of constitutional right, at least on certain issues of a technical character which have a bearing on constitutioality.
68 This is substantially the rule followed in the older cases which went on the ground of “judicial” immunity; see also Raymond v. Fish, 51 Conn. 80; Forbes v. Board of Health, 28 Fla. 26; Seavy v. Preble, 64 Me. 120.
69 See Goodnow in Rep. Amer. Bar Assoc. (1916), xlvi, 414Google Scholar.
70 This would obviate such as a decision as People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.
71 Fosdick, Raymond B. in New Republic, xxvi, 152Google Scholar.
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