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ministrative law organizes the administration — it pre-
scribes in the minutest detail the rules which shall gov
ern the executive department in administering the law.
It is these rules which constitute the body of adminis-
trative law. Administrative law consists, as has been
said, of those rules which govern the executive depart-
ment in the administration of the law.

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CHAPTER II.

THE POSITION OF THE ADMINISTRATION.

§ '.". Introduction.

S. Irresponsibility of the Sovereign.

9. State Action.

10. Governmental.

11. Administrative.

12. Responsibility of the Officer.

13. Public Action.

14. Official.

15. Personal.

16. Conclusion.

§ 7. Introduction.

In every government one condition is fundamental - -
that is the sovereignty of the state Since law itself
must be based ultimately upon the flat of the state, it is
the assent of that society that makes the law; no man,
therefore, may question whether any action of the
state is valid, since by the hypothesis it cannot hut be
legal. Even if it were possible to conceive of any wrong
done by the state, the right would be of no value what-
ever to the individual wronged. For it is in the next
place impossible to imagine that any suit could be
brought against the state wit hunt its consent; since all
the processes of justice proceed from the state itself. Xo
act of the government as a government, therefore, ever
can be questioned in any way. In that view no action
of the administration as an administration is subject to
the inquiry of the law; since the administration in the
execution of its functions is conceived as the reprc-
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Ch. 2] POSITION OF THE ADMINISTRATION. § 7

sentative of the state with the immunities of the state
itself. These immunities of the sovereign, not only from
the imputation of wrong-, but even from inquiry into its
action, are without qualification; and the subjection of
the individual to the state, its consequence, is also
without exception. This, then, is one fundamental con-
dition to be taken into the account in any consideration
of the action of the administration.

On the other hand, there is another condition funda-
mental as this, and, in the actual conduct of administra-
tion, overshadowing. Wherever the common law prevails
the doctrine of the supremacy of the law of the land is
to be found. This doctrine, that before the law all per-
sons must stand alike without regard to station, is in
its consequences the most pervading principle in ad-
ministrative law with us. No man may be seized, none
of his goods may be distrained without the due process
of the law. More than that, no man is above the law,
but every man is subject to the ordinary law of the land
and amenable to the jurisdiction of the ordinary tri-
bunals. Before the law of the land, therefore, the public
officer stands as a private person ; and the result is start-
ling: every act by every public officer may be subject
of suit against the officer as an ordinary person. More
than that, unless the officer can show an exact legal justi-
fication for the precise net which he has done, he has
done nothing more nor less than a legal wrong by bis
interference, for which lie must answer just as any
private wrong-doer must answer for his wrongs. Such
is tin 1 principal rule of (be external law of administra-
tion in the common law system ; and such is (be working
out of it into detail. In Ibis view every action of the

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g 7 ADMINISTRATIVE LAW. [Ch. 2

administration is subject to the law of the land ; in that
some officer of the administration must answer in his
own person, if anything be done by it without the author-
ity of positive law. This is the important condition upon
administration under the common law system.

The problem to be worked out in these lectures is,
therefore, the accommodation of these two principles
upon which together the law relative to administration
under our system depends. The whole situation is just
this in brief: The administration, all of its officers to-
gether, is not responsible to the processes of the law,
as the state is not; but the public officer, any one of the
administration apart, is responsible to every suit, as a
private individual may be. These are the conditions
under which the administration must proceed iu a coun-
try where the supremacy of the law is made the basis of
political institutions. The attempt in this lecture will
be to show by the conglomeration of many instances, how
administration proceeds with us in conformity with both
principles without ignoring either. It is therefore neces-
sary to consider the precise extent to which the admin-
istration is free from liability; and the more indis-
pensable to discover the exact point at which the liability
of the officer begins. For it is evident that the business
of government could not go on unless these rules were
well established and well worked out into detail, with
care to preserve the true rights and the true duties of
all concerned; since no man of prudence and foresight
would accept public office under liabilities which were
undefined. The order of discussion will be therefore
this : first, to inquire how far the administration is irre-
sponsible; second, to discover how far the officer is re-
sponsible.
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Ch. 2] POSITION OF THE ADMINISTRATION. § 8

§ 8. Irresponsibility of the sovereign.

That the sovereign could not be sued in his own courts
is found adjudicated in our earliest books; disposed of
briefly even then, since in any time that must always be
held a self-evident proposition. The case of the Abbot of
Saint Searle to that effect is found reported as follows
in Y. B. 30 Ed. I. 170 (1302) : To a writ of right brought
against the Abbot of Saint Searle it was answered that
the tenements were seized into the King's hands by rea-
son Avhereof the Abbot could not and ought not to an-
swer. Wescot. — Although the tenements are seized in-
to his hands you are tenant of the freehold; judgment if
you ought not to answer. Brumpton. — He ought to an-
swer; but inasmuch as we cannot entertain the suit
whilst the tenements are seized, I advise you who wish to
sue for them to send to Court and purchase permission ;
for we will hold no such plea before we are commanded
to do so.

The rule is as positive in the law of England today
as ever it was. It is perhaps difficult to put a more ex-
treme case than the actual case arising in the Goods of
George III., Addams, 255 (1819). This was an applica-
tion to the Prerogative Court of Canterbury for its
process calling upon the Procurator General, proctor
for and on behalf of the King George IV. as heir and
successor of his late majesty King George III. to see
the last will and testament of his late majesty pro-
pounded and proved in solemn form of law; promoted
and brought by her highness Olive, daughter of the Duke
of Cumberland, the only legatee named in the said will.
This application the court refused to entertain utterly,
as well it might.

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§ 8 ADMINISTRATIVE LAW. [Ch 2

Sir John Nioholl delivered the judgment; he said:
To proceed by this sort of process against the King him-
self; to cite him personally; to put him in contempt;
to do certain acts in pain of his contumacy — was too ex-
travagant even to be attempted; and therefore the cita-
tion is prayed against the King's proctor. But here
again exactly the same difficulty occurs both in principle
and practice, either the King's proctor does or does not
represent the sovereign. If virtute officii he represents
His Majesty, he has the same privileges; nor can he be
put in contempt, and proceeded against in poenam. If he
does not officially quoad hoc and so as to be binding upon ,
represent the sovereign, this process is nugatory. Why
is it to be supposed that the Legislature meant in future
to submit the reigning successor to the ordinary juris-
diction to which no sovereign had ever before been sub-
jected, and which would be a departure from and viola-
tion of the constitutional prerogatives of the crown?
Tke King can do no wrong; he cannot constitutionally be
supposed capable of injustice. If he is properly applied
to in the forms prescribed by the constitution no doubt
ought to exist that real justice will be done. 5

5 Irresponsibility of the Sovereign. — Goods of George III, Addams
255; Tobin v. Reg., 16 C. B. N. S. 310; Beers v. Arkansas. 20
How. 527; Russell v. United States, 182 U. S. 516; United States
v. Surety Co., 74 Fed. 145; Comer v. Bankhead, 70 Ala. 493; Audi-
tor v. Davies, 2 Ark. 494; Nougues v. Douglass. 7 Cal. 65; Mulnix
v. Mutual Ins. Co., 23 Colo. 71; State v. Hartford, 50 Conn. 90; Mfg.
Co. v. Taylor, 3 MacA. 4; Bloxham v. Florida R. R.. 35 Fla. 625;
Powers v. Bank, 18 Ga. 658; Holmes v. Mattoon, 111 111. 27: Craw-
fordsville v. Irwin. 46 Ind. 439; Metz v. Soule. 40 la. 236; Regents
v. Hamilton, 28 Kan. 376; Tate v. Salmon, 79 Ky. 540; State v.
Jumel, 38 La. Ann. 340; Weston v. Dane, 51 Me. 461; State v.
Bank, 6 G. & J. 205; Railroad v. Commonwealth, 127 Mass. 43: Locke
v. Speed, 62 Mich. 408; State v. Torinus, 22 Minn. 272; Edwards

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Ch. 2] POSITION OF THE ADMINISTRATION. § 9

§ 9. State action.

I11 the name of the King, the fountain of Justice, the
King cannot by his own writ command himself. But the
broader reason is, that it would be inconsistent with the
very idea of supreme executive power, and would en-
danger the performance of the public duties of the sov-
ereign, to subject him to repeated suits as a matter of
right at the will of any citizen, and to submit to the
judicial tribunals and control and disposition of his
public property, his instruments and means of carrying
on the government in peace and war, and the money in
his treasury.

These principles go far; to such an extent that they
must be taken into the account in everyday affairs in the
commonest transactions. An instance in point is Lodor
v. Baker, Arnold & Co., 39 New Jersey Law, 49 ( 1876).
This was an attachment process against a non-resident
debtor. The only property in New Jersey claimed for
attachment was the sum of fl,000, in the hands of the
Treasurer of the State alleged to be due from the state
of New Jersey to the debtor. A motion was made to
quash the writ on the ground that the claim which the
defendant, the debtor, had against the state could not
be attached. The argument made upon the motion was
thai this garnishment proceeding would in its working
out involve a suit against the state 1 of New Jersey. And

v. Lesueur, 132 Mo. 410; State v. Mayes, 6 Cush. (Miss.) 700; State
v. Collins, 21 Mont. 448; People v. Butler, 2 Neb. 6; Torreyson v.
Board, 7 New 19; Sargent v. Gilford, 06 N. H. 543; Dock & Imp. Co. v.
Trustees, 32 N. J. Eq. 434; O'Hara v. State, 112 N. Y. 140; Clodfelter
v. State, 86 N. C. 51; State v. Board of Public Works, 30 Oh. St. 409;
Schaffer v. Cadwallader. 30 Pa. St. 120; In Re State House Fund.
19 R. I. 393; Lowry v. Thompson. 25 S. C. 410; Moore v. Tate. 87
Tenn. 744; State v. Snyder. 60 Tex. 701; Board of Public Works v.
Gannt, 70 Va. 401.

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8 9 ADMINISTRATIVE LAW. £Ch. 2

obviously, this was so; since the process must go against
the state in order to enforce the payment of its claim
against the state for the satisfaction of the creditor of
the debtor.

The language of Mr. Justice Van Syckel was em-
phatic: The state enjoys the immunity from suits as
one of the essential attributes of sovereignty, it being
an established principle of jurisprudence in all civilized
nations that the sovereign cannot be sued in its own
courts without its consent. New Jersey has never con-
sented to surrender this prerogative right, and, there-
fore, if it can be shown that this proceeding will involve
the garnishee in litigation, the attempt to interfere with
funds in the treasurer's hands is unwarrantable. The
law cannot be guilty of the inconsistency of inviting the
suitor to attach funds of this nature, and at the same
time deny him every remedy to enforce his lien. The
right to attach must necessarily involve the right to
compel the state to appear as party defendant at the
suit of a private individual. This credit not being at-
tachable, the writ is quashed.

These, then, are fundamental things. That the state
cannot be sued seems at first a technical result; that
the law has tied its own hands; and so has lost its su-
premacy. But does it not upon consideration seem au
untechnical doctrine; for is it not brute force that dic-
tates it rather than subtle logic? The state is sovereign
not because it may be, but because it must be ; the citizen
is subject, not because it is law, but because it must be
so. These things are not possible in theory; to have a
state without a sovereign or a sovereign without sub-
jects. However complex the state, somewhere there
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Oh. 2] POSITION OF THE ADMINISTRATION. < l,

must reside sovereignty; whatever the form of the gov-
ernment, all must be subjects of that sovereign, however
free they may be. These tilings must be so, in fact, be-
cause they are based upon the power somewhere, with-
out which the whole system would be disintegrated. In
last analysis these are reasons for the rule that the sov-
ereign is irresponsible. Therefore, this is a rule without
exceptions.

The gloss of this section, that the state is not respon-
sible, as an elementary principle has many applications
in the practical administration of the law. Whenever
anything gets into the hands of the state, there it must
remain, for no process of law can take it out. So well
is this understood, that cases are few that discuss the
issue when presented in so abstract a form. The state
will return the property when it seems best to do it, no
sooner. Claims against the state of other sorts have no
better standing. The state seizes property for its uses;
the state will pay therefor when it feels so inclined, no
sooner. Since this also is well understood, claimants
again are few who seek to get reparation by suit against
the state. For the same reason there is no obligation
which the state may not repudiate; debtors of the state
are paid if the state wills, not otherwise. The conse-
quence most noteworthy of all in this for administrative
law must be apparent to any observer of these conditions.
The administration has a free hand to work out its own
devices; but the administrative officer has no freedom
of action, except action within the law. Since the admin-
istration is irresponsible, the officer must be respon-
sible.

'•State Action.— Tobin v. Reg., 16 C. B. (N. S.) 31D; Raleigh

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R 10 ADMINISTRATIVE LAW. [Ch. 2

§10. Governmental.

The laws which subject the state to suit are few even
al the present time. The United States is now subject
to suit in the Court of Claims; and various of the states
make some provision for adjudication of claims against
them. Wherever such a law exists the extent of the
submission of the state is statutory in the first instance.
But, as in all questions of statutes, the common law
must be employed in the construction of such enact-
ments. This is the more necessary as such statutes are
often general in form. It is plain that by such a statute
the state should not be held to have held itself out as
liable for every act done by pxi'vx officer in the course of
administration.

That is a question of much importance in our subject ;
whether if the state fail in its duty to carry out the laws
by default of its governmental agencies, it shall be held
liable for this as a wrong done by it to its citizens. A
test case is Jones v. United States, l Ct. of <'!. -'. s ::
(1863). In this case it appeared that the claimants had
entered into a contract with the Commissioner of In-
dian affairs for the survey of the districts described in
the various treaties made between the United States ami
Indian tribes. An astronomer was appointed under the

v. Goschen [1898] 1 Ch. 73; Bowman v. Farnell, 8 N. S. W. 223;
Beers v. Arkansas, 20 How. 527; The Siren, 7 Wall. 152: McMeekin
v. State, 9 Ark. 553; Clinton v. Bacon, 56 Conn. 517; Brown v. Fin-
ley, 3 MacA. 77; O'Neill v. Sewell, 85 Ga. 481; Lightner v. Steicagel,
33 111. 510; Weston v. Dane, 51 Me. 461; Dewey v. Garvey, 130 Mass.
86; Brooks v. Mangan. 86 Mich. 576; Lodor v. Baker, etc., Co., 39
N. J. Law, 49; Agent of Prison v. Rikemam. 1 Denio, 279; State v.
Godwin, 123 N. C. 697; Maddox v. Kennedy, 2 Rich. Law, 102; Moore
v. Tate, 87 Tenn. 744: Board of Public Works v. Gannt, 76 Va. 455.
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Ch. 2J POSITION OF THE ADMINISTRATION. § 10

provisions of thai contract to fix the initial points of the
survey. When the parties were in the field the United
States government withdrew the troops that had been
employed in holding the Indian country; and thereby
the contractors were long delayed in proceeding with
their commission. The claimants, therefore, now insist
as a matter of law that the United States could not with-
draw their police forces from the Indian territory with-
out incurring a liability to the contractors to make them
compensation.

The judgment of the Court of Claims was delivered
by Mr. -Justice Nott : This position cannot be sustained.
The two characters which the government possesses as a
contractor and as a sovereign cannot thus be fused; nor
can the United States while sued in the one character be
made liable in damages for acts done in the other. If
the removal of t loops from a district liable to invasion
will give the claimant damages for unforeseen expenses
against a private individual, as in any ordinary ca^e
it will not, then it will when the United States are de-
fendants, but not otherwise. This distinction between
the public acts and the private contracts of the govern-
ment not always strictly insisted on in the earlier days
of this court, frequently misapprehended iu public-
bodies, and constantly lost sight of by suitors who come
before us, — we now desire to make so broad and dis-
tinct that hereafter the two cannot be confounded; and
we repeat as a principle applicable to all cases, that,
the United Suites ;is ;i contractor cannot be held liable
directly or indirectly for the public acts of the United
States as n sovereign.

All this is undoubted law; although the United States

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Adm. Law — 3.



^ 10 ADMINISTRATIVE LAW. [Ch. 2

may have submitted itself to suit by a general statute,
the interpretation of that statute will not include a
case like this where the government is sued as a govern-
ment for a governmental act. The public acts of the
sovereign are never to be conceived as done subject to
private law; therefore, it will not be held possible that
any private wrong is done thereby. Even when the gov-
ernment enters into contracts, it does not divest itself
of its sovereign character ; and the result often is that
the administration acting in behalf of the state will
interfere in the performance of a contract which the
administration lias entered into in some other capacity.
Examples of this sort of thing may be found in many
places and some of the cases put are hard indeed at first
impression. But no harder than the necessity itself is
upon which in last analysis the rule rests. The truth
of the matter is that in administration there must be a
possibility of unanswerable power ; that in the meeting of
emergencies which arise in the course of government
there must be the right to break with every arrangement
that has been entered into before and to do what the
exigencies of the situation require.

In administrative action the situation may fairly be
expressed by saying that the state is the principal and
the officer is the agent. If, then, upon that description
the analogy of the law of private principal and private
agent is taken, for wrongs done by the officer in the
course of administration the state would be liable. Let
some ease be taken to test lliis. for example, (Jihbons v.
United States, 8 Wall. 2<J<) i 1868), a leading authority
The wrong involved in that case at bottom was a false
imprisonment with large consequential damages, al-
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Ch. 2] POSITION OF THE ADMINISTRATION. § 10

though the petition, it is true, said nothing about any
arrest, force, or duress. It was all an attempt under the
assumption of an applied contract to make the govern-
ment responsible for the unauthorized acts of its officers,
those acts being in themselves torts.

Mr. Justice Miller disposed of the case with his usual
directness; he said: No government has ever held itself
liable to individuals for the misfeasance, laches, or un-
authorized exercise of power by its officers and agente.
It does not undertake to guarantee to any person the
fidelity of any of the officers whom it employs, since
that would involve it in all its operations in endless
embarrassments, and difficulties, and losses, which
would be subversive of the public interests: the language
of the statutes which confer jurisdiction upon the court
of claims excludes by the strongest implication demands
founded on torts. The general principle which we have
already stated as applicable to all governments, forbids,
on a policy imposed by necessity, that they should hold
themselves liable for unauthorized wrongs inflicted by
their officers on the citizens though occurring while en-
gaged in the discharge of official duties.

No proposition of administrative law is so undisputed
as this, that the government is not liable for torts in
the course of governmental action; and no rule of ad-
ministrative law is so without exception as this. As a
matter of theory it is impossible to conceive of the state
as a private principal subject to the liabilities of the
law of private agency; the truth is that this is another
realm, this is a public principal, the law of public agency
governs; and according to that public law it is as im-
possible for the state to authorize wrong-doing, as it is

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S H ADMINISTRATIVE LAW. [Ch. 2

inconceivable that the state should do wrong itself. But
more than this, as a matter of policy the rule has every
support. No government could hold itself out to answer
for its shortcomings ; that they are always present, it is
evitable. A government is an imperfect machine at the
best. Liable in various ways governments may make
themselves ; never in this. As this chapter goes on, this
at least must be more evident with each case that is
added : that no government could hold itself liable for all
the wrongs that may arise in the course of administra-
tion, and long endure. Much remains to be explained in
working out this principle ; but this is the rule, once for
all. 7

§ 11. Administrative.

The chief obligation resting upon the administration
in any government, great or small, is to see that the
laws are faithfully executed. But suppose that the laws
are not enforced, and because of tins failure in adminis-
tration some person suffers a special damage; is this
a case for suit against the governmental body, or is it
not? A dramatic case upon this special issue is Levy v.
Mayor, 1 JSandford, 465 (1848). This was an action
against the Mayor, Aldermen, and Commonalty of the
City of New York for damages for the death of the plain-

< Governmental. — Russell v. Devon, 2 T. R. 667; Lee v. Munroe,
7 Cranch 366; Gibbons v. United States. 8 Wall. 269; Brown v.
United States, 6 Ct. of CI. 171; Jones v. United States, 1 Ct. of CI.
383; Sherbourne v. Yuba Co., 21 Cal. 113; Stillman v. Isham, 11
Conn. 124; Marshall Co. Sup'rs v. Cook, 38 111. 44; McCaslin v. State. 99
Ind. 428; Fries v. Porch, 49 la. 351; Weston v. Dane, 51 Me. 461;
Williams v. Adams, 3 Allen 171; Detroit v. Blackeby, 21 Mich. 84;
Sooy v. State, 39 N. J. L. 135; Adams v. W T iscasset Bank, 1 Me. 361;.
Brcwn's Adm'r v. Guyandotte, 34 W. Va. 299.
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Ch. 2] POSITION OF THE ADMINISTRATION. § H

tiff's son, an infant, who was killed in one of the public
streets by swine which had run him down and trampled
him to death. The City of New York had enacted an
ordinance prohibiting swine from running at large in
the streets, with a provision for the impounding of ani-
mals so found. Notwithstanding which, the plaintiff de-
clared, the corporation of New York, being unmindful of
its undertaking, did nor keep the streets free and clear
from swine straying therein; whereby some swine so
suffered by the corporation to be so at large attacked,
assaulted, fell upon, and mortally wounded said E. D.
Levy.

Mr. Justice Sandpord delivered an incisive opinion:
The plaintiff's counsel well observed, that there was



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