Copyright
Bruce Wyman.

The principles of the administrative law governing the relations of public officers online

. (page 1 of 44)
Online LibraryBruce WymanThe principles of the administrative law governing the relations of public officers → online text (page 1 of 44)
Font size
QR-code for this ebook


-W4INIVFJM/A ^lOS-ANGElfju




^.OF-CAllFORto ^OF-CAIIFI




J. <— r P I' §



y CAavaar



'%







«$UIBRARY0/



^UIBRARY6>/
£? 1 ir" £■







^ ^ismm^ \w\m^ %oi\mi^ ^mnysqv^



^ lt '




e?

^/smaim-



%



o

I?







^OKALIFORfc

^Awaan-i^




^OFCAIIFO^




y 0AHvaain^



.^E-UNIVERS/a




<&133NV-SOV^



^lOS-ANCI



S 3




e?

"^haim-



m — •





^ y 0Aawan#



.^UNIVFRy/A
>- 1 &ar t

ac —

=3







^ciMcn^




"^/swAiNaa^







<QlMNVS0V^



"^toBAINMIfe?*



^UIBRARYOr !IBRAR




^OFCAIIFO^ ^OFCAIIF




^Aavaani^ y omm



^mmus*







^UIBRARY0/ ^UIBRARVOc




.\WWNIVtR%



hQlMW^ ^OillYDJO^ <TJl3DNYS0^



i











"%HAINA-tt^



^OFCMIFO^ ^OFCALIFOfy*

£ —

r— u-i

^Aavaain^ ^AHvaaiH^









^lOSANCf



<QUDNV-S0l^




^aiAJNd



?/\ ^tUBRARY-0/




^NJNIYBB/a



^OJITVD-JO^ %1»S0^








^/MAINfHV^



-i^UIBRAH- ^UIBRAK

2 2




%jitv3jo^ ^ojmo-



tWF-UNIOT/^ ^lOSANCEt^




AllFO&fc,



^WllOflMB I (//



oftl-UBKA«l-i




%MI1VJ-J0^ ^OJIIVJJO^ ^tflMNV-SOl^

jfOF-CAUFOB^ ^OFCAllFOfl^




^AHvaaiH^ 1



^Aavaani^






U2







'tflBNV-SOl^



^khainihv^



\MEUNIVn?% ^lOSANCElfj^




|



"^saaAiNn awv^ *ow



IVH%



MlttlBKAKW'



^fUBKAHTt;/:




^FCAUFOft^



^OJIIVOJO^



^OKAUHMfc



.WfUWVtKl/



%l»S0#



^IHAIN







^AHvaani^








<ttovsov^ J( nmm^







nvDio^



^OFCAUFG&fc



)i



vrn^



XtftUMYtjO/^ ^(Ub-AMiEtt^




'•TTOTSm^




"%BAWfl-l^



^VUBKAKTCfc ^tUBKAKTC^








^WtUNIYthty^



§



*mmw&



WITHDRAW*

L. A. CO. •-• L



THE PRINCIPLES



OF THE



ADMINISTRATIVE LAW



GOVERNING THE RELATIONS OF



PUBLIC OFFICERS



BY



BRUCE WYMAN

Ml
OF THE FACULTY OF LAW IN HARVARD UNIVERSITY



ST. PAUL. MINN.

KEEFE-DAVIDSON COMPANY

1903



T

\p3



Copyright 1903

BY

BRUCE W V.MAN



M

CO



PREFACE



This book is based upon an occasional course of lec-
tures delivered in the Law School of Harvard University.
No more is attempted than to deal with the elements of
the administrative law which governs the relations of
public officers. At the same time the matters brought
out are specific, so that what is discussed may prove of
service. The annotation is not exhaustive, but is intend-
ed to make reference to a variety of cases, valuable for
the purpose of consultation, which bear upon the sub-
jects discussed in the text. In the appendix are collect-
ed mam* statutes, regulations, orders, and forms which
govern administrative practice before the principal ex-
ecutive departments, so that this book may be a manual
for lawyers engaged in such matters. Upon the whole,
this treatise deals with the first principles of the law of
administration. ' To that end, the analysis of the subject
is made upon the systematic basis that appears in the
table of contents. It will then appear that the law upon
administration is still in the making, because the phrase-
ology employed had no accepted basis to found itself up-
on. So far as this law is developed this treatise purports
to present it.

B. W.



-7* /



TABLE OF CONTENTS



CHAPTER I.

THE LAW OF THE ADMINISTRATION.



1. Introduction.

2. Law for Administration.

3. External Law.

4. Internal Law.

5. Result for Administration.

6. Conclusion.



CHAPTER II.

THE POSITION OP THE ADMINISTRATION.

§ 7. Introduction.

8. Irresponsibility of the Sovereign.

9. State Action.

10. Governmental.

11. Administrative.

12. Responsibility of the OfBcer.

13. Public Action.

14. Official.

15. Personal.

16. Conclusion.



CHAPTER III.

THE INDEPENDENCE OP THE ADMINISTRATION.

17. Introduction.

18. Separation of Departments.



TABLE OF CONTENTS.



19.


Independence.


20.


Co-ordination.


21.


Subordination.


22.


Division of Functions.


23.


Distribution.


24.


Confusion.


25.


Conclusion.



CHAPTER IV.



THE POWERS OF ADMINISTRATION.



26. Introduction.

27. Political Powers.

28. Foreign.

29. Interior.

30. Governmental Powers.

31. Domestic.

32. Colonial.

33. Conclusion.



CHAPTER V.



THE DUTIES OF THE ADMINISTRATION.



34. Introduction.

35. Discretionary Duties.

36. General.

37. Directory.

38. Ministerial Duties.

39. Specific.

40. Mandatory.

41. Conclusion.



CHAPTER VI.

THE MEMBERSHIP IN THE ADMINISTRATION.
42. Introduction.



TABLE OF CONTENTS.



43. Classification of Officials.

44. Officer.

45. Employee.

46. Selection of Officials.

47. Election.

48. Appointment.

49. Removal of Officials.

50. Arbitrary.

51. Judicial.

52. Conclusion.



CHAPTER VII.

THE ORGANIZATION OF THE ADMINISTRATION.

53. Introduction.

54. External Divisions.

55. Federal.

56. State.

57. Internal Subdivisions.

58. Department.

59. Bureau.

60. Division.

61. Conclusion.



CHAPTER VIII.



THE THEORY OF ADMINISTRATION.



62. Introduction.

63. Centralized Administration.

64. Interdependence.

65. Superior.

66. Inferior.

67. Decentralized Administration.

68. Independence.

69. Lower.

70. Higher.

71. Conclusion.



,ii TABLE OF CONTENTS.

CHAPTER IX.

THE AUTHORITY OF THE ADMINISTRATION.

72. Introduction.

73. The State as Principal.

74. Limitation.

75. Implication.

76. Liability.

77. Relation.

78. The Officer as Agent.

79. Authorization.

80. Interpretation.

81. Responsibility.

82. Subjection.

83. Conclusion.



CHAPTER X.

THE EXECUTION OF THE ADMINISTRATION.

84. Introduction.

85. Extraordinary Process.

86. Enforcement.

87. Apprehension.

88. Command.

89. Coercion.

90. Ordinary Process.

91. Arrest.

92. Seizure.

93. Demand.

94. Distraint.

95. Conclusion.



CHAPTER XI.

THE LEGISLATION OF THE ADMINISTRATION.

96. Introduction.

97. Written Rules.

98. Scope.



TABLE OF CONTENTS.



99.


Extent.


100.


Unwritten Rules,


101.


Validity.


102.


Propriety.


103.


Conclusion.



CHAPTER XII.

THE REGULATION OF THE ADMINISTRATION.

104. Introduction.

105. Conflict with Legislation.

106. Repugnancy.

107. Limitation.

108. Conflict with Administration.

109. Characteristic.

110. Situation.

111. Conclusion.



CHAPTER XIII.

THE ADJUDICATION OF THE ADMINISTRATION

112. Introduction.

113. Jurisdiction in Adjudication.

114. Exclusive.

115. Final.

116. Adjudication in Controversies.

117. Concurrent.

118. Alternative.

119. Conclusion.



CHAPTER XIV.

THE PROCESSES OF THE ADMINISTRATION.

120. Introduction.

121. Ex Parte Proceedings.



TABLE OF CONTENTS.



122. Claim.

123. Allowance.

124. Collection.

125. Inter Partes Proceedings.
112G. Contest.

L27. Protest.

128. Remission.

129. Conclusion.



CHAPTER XV.

THE JURISDICTION OF THE ADMINISTRATION.

§ 130. Introduction.

131. Scope of Jurisdiction.

132. Administration by Execution.

133. Administration by Legislation.

134. Administration by Adjudication.

135. Extent of Jurisdiction.

136. Conclusion.



APPENDIX.

Page.

A. Regulations Relating to Army and Navy Pensions for the

Guidance of Claimants and Attorneys 373

B. Rules of Practice in Cases Before the Accounting Officers

of the United States in the Division of the Comptroller. . . 392

C. Customs Administrative Act of June 10, 1890, as Amended

by Act of July 24, 1897 416

D. Rules of Practice in the United States Patent Office 444

E. Rules of Practice in Cases Before the United States District

Land Offices, the General Land Office, and the Department

of the Interior 523

F. Laws Applicable to the Administration of the Internal Rev-

enue Laws 557



ADMINISTRATIVE LAW.



CHAPTER I.



THE LAW OF THE ADMINISTRATION.

§ 1. Introduction.

2. Law for Administration.

3. External Law.

4. Internal Law.

5. Result for Administration.

6. Conclusion.

?5 1. Introduction.

It is intended in these lectures to deal with the law
governing the execution of law by public officers so far
as such a law has a place in our system of law. The at-
tempt will be to discover the principal rules of law that
govern in administration; the object of which is to
arrive at some theory as to the nature of this adminis-
trative law which regulates the rights and duties of
officials in their various relations. Administrative law,,
then, is that body of rules which defines the authority
and the responsibility of that department of the gov-
ernment which is charged with the enforcement of the
law. At all events, the experiment in these lectures will
be to treat these problems of administration as matters
of law.

Mil Dicky in his admirable book The Law of the Con-
stitution, which is already a classic among treatises

(1)

Adm. Law — 1.



g ! ADMINISTRATIVE LAW. [Ch. 1

upon political institutions, says iu chapter 12 : In many
countries, servants of the state are in their official ca-
pacity to a -real extent protected from the ordinary
law of tli«' Land, exempted from the jurisdiction of ordi-
nary tribunals, and subject to official law administered
).\ official bodies. This scheme of so-called administra-
tive law is opposed to all English ideas. The words Ad-
ministrative Law are unknown to English judges and
counsel, and are in themselves hardly intelligible with-
out further explanation. This absence in our language
is significant. It arises from non-recognition of the
thing itself. In England and in the countries which
like the United States derive their civilization from
English sources, the system of administrative law and
the very principles upon which it rests are in truth un-
known. When the highest authority declares in so ex-
plicit a manner that administrative law is impossible
under the common law system, at all events one thing
can be promised in this course of lectures — novelty of
subject.

It is the more remarkable that administrative law has
qoI been conceived of as a department of our public law
when it is pari of the legal system of every country of
continental Europe. Droit administratif is under every
country of the civil law a well ascertained branch of
public law. Indeed foreign writers cannot imagine or-
derly government without administrative law. They
assume it as indispensable that the administration
should have its own body of law to govern in all its legal
relations. The character of these administrative laws,
they say, musl be different from the private laws which



Ch. 1] LA W OF THE ADMINISTRATION. § 1

govern between individuals. For the interest of the
state is a determining factor. All dealings, in short, in
which the rights of an individual in reference to the
state or to administrative officers come in question — as
also the process whereby such rights and liabilities are
to be enforced — come within the contentieux adminis-
tratifs. And this is necessary, says M. Vivien in his
Droit Administratis Chapter 1: There are required
different principles, different procedure, different train-
ing of judges, special knowledge and experience, — in
fine, administrative justice can only be obtained by ad-
ministrative law, and by the employment of the admin-
istrative process.

Xow, political science is a universal science. How-
ever diverse in its manifestations, governmental power
is the same in last analysis. Accordingly, there is no
power exercised in am r government which is not to be
found in some form or other in every government. In
every government there must be a department charged
with the enforcement of the law. In the law of every
state, therefore, there must be a body of rules in rela-
tion to the action of that department. In that sense at
least, there must be an administrative law in the law of
every state. In one state the administrative law may
allow a large sphere of action to the executive depart-
ment; in another state that law may allow a small
sphere of action to that department. And that is indeed
the fact; in the civil law system the law governing ad-
ministration has a superior position to the law of the
land; in the common law system the law governing ad-
ministration has an inferior position to the law of the
land. So wide is this distinction that it would be an

(3)



e 2 ADMINISTRATIVE LAW. [Ch. 1

impossible thing to import the civil law forms to classi-
fy the common law facts.

At the same time, since there is an administration
which proceeds in accordance with a law in the common
law system as well as in the civil law system, it ought to
be obvious that administrative law has a place in the
jurisprudence of every state. In this broad statement
of the problem it is obvious that there is an administra-
tive law in the United States. That law which governs
the administration of law by public officers is the sub-
ject of these lectures.
? 2. Law for administration.

In a discussion of administrative law there is a first
distinction to be taken which may lie marked by the
phrases the external law and the internal law. Ex-
ternal administrative law deals with the relations of the
administration or of officers with citizens. I menial
administrative law is concerned with the relations
of officers with each other, or with the administra-
tion. And yet in a way both of these branches of this
law are involved in any motion of the administration,
since the administration cannot act upon an external
matter without internal direction. Together, the ex-
ternal law and the internal law make up the law of ad-
ministration.

To such extent is this interaction of the external law
upon the internal law and of the internal law upon the
external law the fact, that cases arise where there is an
apparent conflict between these laws. Suppose the su-
perior officer commands the inferior officer to do a cer-
tain act — it is the internal law. that every order must
be obeyed. But suppose that the external law di-
(4)



Ch. 1] LAW OF THE ADMINISTRATION. g 2

rects the officer not to do that act — it is the external
law that every law must be obeyed. Now, how can this
inferior officer obey both the internal law and the ex-
ternal law when the one commands action, and the other
requires inaction, as to the same subject matter? There
must be some solution to allow the officer to escape from
the horns of such a dilemma.

That is the question where the law of the land com-
mands and the law of the administration demands —
which? There are the two possibilities. As a first in-
quiry let it be asked whether in such a conflict the order
of the superior officer will prevail. A case that in-
volves that is Hendricks v. Gonzales, <57 Fed. 351 I 1895 I.
This was an action by a charterer of a vessel against the
Collector of the Port of New York to recover damages
for the detention of the steamer by refusal to give clear-
ance papers. The facts brought to the attention of the
collector were that the cargo consisted wholly of arms
and munitions of war; and that she was bound to a port
near the base of operations of the Venezuelan insur-
gents. Upon report to Washington, the Secretary of
Treasury ordered the vessel to be held. The judge sub-
mitted to the jury the question of fact whether the de-
fendant had reasonable cause to believe that the vessel
was intended to be used in the hostilities; if he had, in
fact, he was entitled to a verdict. Error was assigned
because of the refusal of the trial judge to rule that the
defendant was exonerated from liability for his acts by
the instructions of the Secretary of Treasury.

Wallace, the Circuit Judge, stated the judgment
tints: The questions presented by the assignments of
error seem free from doubt. The plaintiff having com-

(5)



g -> ADMINISTRATIVE LAW. [Ch. 1

plied with the conditions entitling him to clearance, it
was the duty of the defendant as collector of the port,
to granl a clearance for the vessel and her cargo, unless
he was justified in refusing to do so by some other statu-
tory authority. Neither the Secretary of the Treasury
nor the President could nullify the statute, and though
the defendant may have thought himself bound to obey
the instructions of the former, his mistaken sense of
duty could not justify his refusal of the clearance, and
these instructions afforded him no protection unless
they were authorized in law.

One feels a conflict of rights and duties in this deci-
sion. On the one hand the collector is bound by the in-
ternal law of administration to obey his superior in the
administration; on the other hand the collector is bound
by the external law of the land to the shipmaster. And
in that conflict the law of the land is held the superior
law. This is an illustration of the supremacy of the law
of the land; no test shows more how the law of the land
dominates the situation in administration in countries
under the common law. The order of the superior is
qo defense because it is not recognized as of any value
when there is positive law of the land to the contrary.
The law of the land — the external law — overrules the
law of the administration — the internal law.

This solution is for the extreme case where the duty
to be performed is purely ministerial. If in the duty
to 1»- performed something is left to discretion this solu-
tion is reversed. In any estimate of the situation a case
like In re Fair, 100 Fed. 149 (1900), must be stated in
order that any extreme doctrine may be qualified. One
.Morgan, a prisoner in a United States military prison,
(6)



(Jh. 1] LAW OF THE ADMINISTRATION. § 2

made his escape from the fort. Fair, a corporal, and
Joe-kins, a private, who were on guard duty, were called
upon to pursue the prisoner. The order as given was
in substance as follows: Pursue the prisoner, if you
sight him summon him twice; and if he docs not halt
fire upon him, and fire to hit him. About dusk they
halted Morgan on a highway; he turned and ran across
a field; they followed close after. Fair gave the order
to fire and Morgan fell mortally wounded. For the kill-
ing of Morgan, Fair and Jockins were tried by court-
martial, and found not guilty. Next they were indicted
for manslaughter in the Nebraska Court.

Munger, the District Judge, ordered their release:
The law is that an order given by an officer to his pri-
vate, which does not expressly and clearly show on its
face its illegality, the soldier is bound to obey; and such
order is his full protection. The first duty of a soldier
is obedience, and without this there can be neither dis-
cipline nor efficiency in an army. If every subordinate
officer and soldier were at liberty to question the legal-
ity of the orders of the commander, and obey them or
not as he may consider them valid or invalid, the
precious moment for action would be wasted. Its law
is that of obedience. No question can be left open of
the right to command in the officer, or of duty of obedi-
ence in the soldier. While I do not say that the order
given by Sergeant Simpson to the petitioners was in all
particulars a lawful order, I do say that the illegality
of the order, if illegal it was, was not so much so as to
be apparent and palpable to the commonest understand-
ing. If, then, the petitioners acted under such order in
good faith, they arc not liable to prosecution.

(7)



I 2 ADMINISTRATIVE LAW. [Ch. 1

This decision certainly commends itself to common
sense. The position of the soldier is so hard that it
cannot be possible. Otherwise this often would be the
alternative for the soldier: if he refused to obey a rea-
sonable order — to be shot for disobedience; if he killed
in pursuance of that order — to be hung for murder. It
may be urged that this is always more or less the situa-
tion in all administration under the common law sys-
tem, only the present case is more dramatic than the
ordinary case. There is, however, distinction between
this case and the former case. In the first case the
officer exceeded the discretion vested in him in his ac-
tion; in the second case the officer acted within the dis-
cretion vested in him. That makes the whole difference.

In crucial cases there will be this antinomy between
conflicting duties. If it be granted that when there is
a ministerial duty to perform a certain act the law of
the land must be obeyed, in that case there is no conflict.
And if it be granted that where there is a discretionary
duty to perform a certain act the law of the administra-
lion should be obeyed, in that case also there is no con-
flict. That is the legal solution of this difficulty then.
In the first case there was no place for the internal law
left by the external law; in the second there was a scope
for the internal law within the external law. 1

i Law for Administration. — Rogers v. Dutt, 13 Moo. P. C. 236;
Raleigh v. Goschen [1898] 1 Ch. 73: Mitchell v. Harmony, 13 How.
115; United States v. Lee, 106 U.S. 196; Coblens v. Abel, Woolworth
293; Hendricks v. Gonzales, 67 Fed. 351; Eslava v. Jones. 83 Ala.
139; Lee v. Huff, 61 Ark. 494; Harpending v. Haight, 39 Cal. 189;
Land Co. v. Routt. 17 Colo. 156; Raymond v. Fish, 51 Conn. 80: Dow-
ling v. Bowden, 25 Fla. 712; State v. Bell, 9 Ga. 334; Strickfaden
v. Zipprick. 49 111. 286; Governor v. Nelson, 6 Ind. 496; McCord v.
High, 24 la. 336; State v. Francis, 23 Kan. 495; Lecourt v Gas-

(8)



Ch. 1] LAW OF THE ADMINISTRATION. g 3

'4 3- External Law.

The external administrative law as defined deals with
the relations of tin* administration, and of officials, with
citizens. External administrative law is thus concerned
with almost everything which the government asks of
the citizens; and it is concerned with almost everything
which citizens ask of the government. These sub-
jects in the large, form the principal subject matter of
these lectures. Since in this inquiry is involved the ex-
tent of the power of the administration, all the law as to
the authority of officers is brought into the discussion.
And since in the same inquiry is involved the limitation
of the administration, all the law as to the responsibility
of officers is brought in issue.

There is one fundamental question: Is the adminis-
tration in its relations with citizens subject to the same
rules of law as govern the relations of citizens among
themselves? it has been remarked that under the for-
eign system of administrative law a special law governs
relations with the administration, while in our system
of administrative law it has been supposed that there is
oik 1 law in the land which governs public officers and
private citizens alike. It is very simple — this common
law view — that action in accordance with legal authori-
zation is legal and the official so acting will always be

ter, 50 La. Ann. 521; Harwood v. Siphers. 70 Me. 464; Magruder v.
Swann, 25 Md. 173; Tellefsen v. Fee, 168 Mass. 188; Pawlowski v.
Jenks, 115 Mich. 275; Hines v. Chambers, 29 Minn. 7: Newman v.
Elam, 30 Miss. 507; Chouteau v. Rowse. 56 Mo. 65; State v. Krutt-
schnitt, 4 Nev. 178; Ela v. Shepard, 32 N. H. 277; Hann v. Lloyd.
50 N. J. Law, 1; Olmsted v. Dennis, 77 N. Y. 378; Board of Education
v. Com'rs of Bladen, 113 N. C. 379; State v. Auditor, 43 Ohio St. 311;
Williams v. Schmidt. 14 Ore. 470; Yealy v. Fink, 43 Pa. St. 212;
Randall v. Wethersell. 2 R. I. 120; McKinney v. Robinson. 84 Tex.
489; Brown v. Mason, 40 Vt. 157; Board of Public Works v. Gannt,
76 Va. 455; Frazier v. Turner, 76 Wis. 562.

(9)



< 3 ADMINISTRATIVE LAW. [Ch. 1

justified; and that action without warrant of law is ille-
gal, and the official so acting will always be considered a
private wrong-doer. Without doubt this is the gen-
eral rule of the common law governing the relations of
officials with citizens. This must be, therefore, the first
rule df external administrative law.

A strong illustration of the effect of this rule that the
circumstance that the act done purports to be under the
authority of the government makes out no justification
whatever is United States v. Lee, 106 V. S. 196 I 1882 i.
This was an action commenced by Lee against Kaufman
and others for ejectment of the Arlington Estate. Dur-
ing the war the Lee family had been dispossessed by pro-
ceedings which the Lower Court held void. At that
stage of the ejectment process the Attorney-General riled
in the case a suggestion that these defendants held the
premises as public officers acting under the direction of
the President of the United States; and that the suit
ought not to be maintained. The plaintiff demurred to
this suggestion upon the ground that the action was
against the defendants as private wrong-doers.



Online LibraryBruce WymanThe principles of the administrative law governing the relations of public officers → online text (page 1 of 44)