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Atty. General, 259.



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94 THE LA W OF OFFICERS.

sional in character. l In all cases resignation consists
in the intention to relinquish the office accompanied by
an absolute relinquishment. * Provided these facts are
present it makes no difference how the resignation is
made. It may be and usually is in writing, but it also
may be made by parol. 8 Where the acceptance of the
resignation is not regarded as necessary it has been
held that the resignation is complete as soon as it is out
of the power of the officer resigning to recall it. Thus
the resignation has been held to be complete after it
has been mailed. 4 Where, however, acceptance of the
resignation is necessary the resignation is not complete
until it has been received by the authority that has the
right to accept it and may be withdrawn by the officer
resigning at any time with the consent of the officer
who has the power to accept it. 5 Finally where it
is provided that an officer shall hold over until his suc-
cessor enters upon the duties of the office it has been
held that resignation has no effect, even if it has been
accepted, as the purpose of the law is to prevent an
official interregnum. 6 As there is no formal way pre-
scribed for the making of a resignation so there is no
formal method prescribed for its acceptance. Thus
the filing without objection of the resignation in the
proper office has been held to be an acceptance, 7 so also
the appointment of a successor. 8 The resignation may

1 See Edwards v. U. S., 103 U. S., 471.

• Biddlev. Willard, 10 Ind., 62, but see Blake v. U. S., 14, Ct. CI., 46a,
holding that the resignation of an officer while temporarily insane is valid.

• Barbour v. U. S., 17 Ct. CI., 149.
4 State v. Clarke, 3Nev., 519.

1 Biddle v. Willard, 10 Ind., 62 ; but see State v. Hauss, 43 Ind., 105.

• Badger v. U. S., 93 U. S., 599 ; Edwards v. U. S., 103 U. S., 475 J Thomp-
son v. U. S., 103 U. S.. 480

1 Pace v. People, 50 111., 432 ; see also Gates v. Delaware Co., 12 Iowa, 432.

• Edwards v. U. S. f 103 U. S., 471.



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TERM IN A TJON OF THE OFFICIAL RELA TION. 95

never, however, be retrospective since that would per-
mit an officer to escape official responsibilities. l

In France and Germany, while the general right to
resign from all offices not obligatory in character is
recognized as in England and the United States, still
certain limitations on the exercise of the right are to
be found in the laws. Thus in France the penal code 9
punishes all officers who by a preconcerted decision
resign in order to prevent or suspend the action of
some public service; while in Germany the officer
about to resign must give three months' notice of his
intention, and the resignation is not effectual until he
has finished his work and, in case he has public
property in his charge, until his accounts have been
fully settled ; and the resignation must be accepted, 3

III. — Loss of qualifications.

Loss of qualifications generally entails loss of the
office. Thus the attainment of an age which by law
unfits for the office will terminate the official relation
except in so far as the doctrine of officers de facto
comes in to modify the rule. Also conviction for
crime, which results in the loss of the qualification of
good character, will terminate the official relation. 4
One of the most common methods of losing the neces-
sary qualifications is the acceptance of an incompatible
office. This is regarded as, ipso facto, a vacation of the
first office even if the second office is inferior to the
first 5 ; and even though the title to the second office is

1 I. First Comptroller's Decisions, 325. • Article 126.

• Schulze, op. cit. f I., 341 ; for France see Block, Dictionnaire, etc,, 986.
4 E. g. t see N. Y. L. 1892, c. 681, sec. 20.

• Milward v. Thatcher, 2 T. R., 81 ; I. First Comptroller's Decisions, 324
and cases cited ; Mechem, op. cit. t sec. 420 and cases cited.



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9 6 THE LA W OF OFFICERS.

defective the first office may not be claimed if in the
meantime it has been filled. 1 The only exception to
this rule is that where the incumbent of the first office
has not the right to resign or where his resignation is-
not complete, as, e. g., it has not been accepted when
acceptance is necessary. Here the acceptance of the
second office has no effect. 2 The incompatibility which
is necessary in order to vacate the office may result
from common law or from statute. The common law
holds that an " inconsistency in functions of the two
offices and not the mere lack of time or inability
properly to perform the duties of the two offices is an
incompatibility." 8 Sometimes the statutes merely de-
clare that two offices are incompatible when the rule
as stated would apply; sometimes they declare that
no person shall hold at the same time two lucrative
offices. Where the two offices are found in the same
government, as, e. g., in the commonwealth, or where
the second office is held in another government over
which the government laying down the rule has no
jurisdiction, then the rule is that the second office is to
be deemed an incompatible office, and that therefore
the first office is vacated. 4

But these incompatible offices must be clearly dis-
tinguished from forbidden offices. Here the rule is
not that the first office is vacated but that it is ab-
solutely impossible for a person to accept an office for
which be is made ineligible by the fact of his holding

1 Rex. v. Hughes, 5 B. and C, 886.

• Rex. v. Patterson, 4 B. and Ad., 9.

1 See People v. Green, 58 N. Y., 295 ; Mechem, op, <*/., sec 423 and cases
cited.

4 See Darley v. State, 8 Blackford, Ind., 329 ; Dickson v. People, 17 111.,
191 ; State v. Buttt, 9 S. C. 156 ; Lucas v. Shepherd, 16 Ind., 368 ; State v.
Newhouse, 29 La. Ann., 824.



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TERMINA TION OF THE OFFICIAL RELA TION. 97

another office. 1 When the law provides that no person
shall hold two lucrative offices and a person holding
an office over which the government laying down the
prohibition has no control (as, e. g., a United States
post office), accepts an office over which such govern-
ment has control (as, e. g. y a commonwealth office),
then the second office is regarded as a forbidden office.
The first one is therefore not vacated as in the case of
an incompatible office, but the individual is deemed
ineligible to the second office. 2

Finally persistent refusal to perform the duties of
the office is regarded as an abandonment of the office. 8
All cases of resignation, disqualification, or abandon-
ment of office are decided finally by the courts. 4

IV. — Removal from office.

The power may be given to an administrative officer
to remove other officers whatever be the method of
forming the official relation. Thus a power may be
given to the chief executive to remove officers who
obtained their offices by popular election. Take, e. g. y
the case of the New York sheriff and the French
mayor. Both are elected directly or indirectly by the
people and yet both as a result of statute may be re-
moved by the chief executive. Where, however, the
tenure of an office is by election, or where the term of
an officer is fixed by law for a certain period, it would
seem to be the law in the United States that in order
that the power of removal may be possessed by any

1 People v. Clute, 50 N. Y., 451 ; see also Searcy v. Grow, 15 Cal., 117.
8 State v. De Gress, 53 Tex., 387 ; People v. Leonard, 73 Cal., 230.
" Mechem, op. cit. % sec. 435 and cases cited.

4 Van Orsdell v. Hazard, 3 Hill, N. Y., 243 ; Mechem, op. cit. % sees. 435 et
seq. , 478 and cases cited.



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98 THE LA W OF OFFICERS.

other administrative officer, it must have been granted
by some statute. If, however, an officer is appointed
by a superior officer it would seem to be the rule,,
in the absence of any statute fixing the term or tenure,
that the power of removal is incident to the power of
appointment 1 It is quite common in the United States
for the legislature to confer upon the chief executive
officer the power of removing officers whom he has not
the power to appoint.* The power conferred in such cases
may be absolute or it may be conditional. The power
of removal when incident to the power of appointment
is usually absolute. It is therefore absolute in the
United States national government; in the common-
wealths it is also usually absolute for the subordinates
in the departmental services, and also for the clerical
services in the localities. It is also usually absolute in
both England and France, both in the central and the
local services. Where conditions are imposed, they
consist sometimes in the necessity of obtaining the con-
sent of an executive council. This is frequently true
of the power of the governor to remove the important
u state officers." 8 In other cases, which are very f re-
quent in the United States commonwealths, the condi-
tion consists in the fact that the removal may be for
cause only. Where the cause is not particularly speci-
fied, the removing officer is generally to decide what
is cause sufficient to justify his action, 4 subject,
however, to the review of the courts. 5 These have
held that the cause sufficient to justify a removal
for cause, must be some dereliction of duty or in-

1 Ex parte Hennen, 13 Peters, U. S., 230, 239 ; People ex rel. Sims v. Fire
Commissioners, 73 N. Y., 437 ; Mechem, op. cit. y sec. 445. * Ibid., sec. 447-
3 Supra, I., pp. 103, 104. 4 See Dubuc v. Voss, 19 La. Ann., 210.

6 Matter of Nichols, 6 Abbott's New Cases, N. Y., 494.



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TERMINA TION OF THE OFFICIAL RELA TION. 99

capacity or delinquency and that the mere fact that
another person might perform the duties of the office
better than the incumbent is not sufficient cause. 1
Sometimes the statutes granting the power of removal
or fixing the tenure of an officer specify distinctly the
causes for removal If such is the case the removing
officer may remove only for the causes specified in the
law. 2 Ordinarily the causes which are thus specified
are official misconduct, mal-administration in office,
breach of good behavior, wilful neglect of duty,
extortion, and habitual drunnkeness. The legislature
may in the absence of constitutional provision deter-
mine what shall be sufficient to justify the exercise of
the power of removal; but where the constitution
provides that certain causes will justify the exercise of
the power, the legislature may not add new causes.*
Where the law provides for removal for official mis-
conduct it is necessary to separate the character of the
officer from the character of the man who holds the
office. That is, misconduct must be official in charac-
ter. 4 In all cases where the power of removal is con-
ditioned upon the existence of cause it is necessary for
the removing officer to give the officer to be removed
an opportunity to be heard in his defence. 5 But where
the removing officer has the arbitrary power of removal
this is not necessary, though it may be made so by
statute. 6 As a general thing the power of removal

1 People v. Fire Commissioners, 73 N. Y„ 437.
9 Mechem, op. tit., sec. 450 with cases cited.

* Mechem, op. eU. % sec. 457 ; Commonwealth v. Williams, 79 K'y, 42.
4 Ibid. ; Commonwealth v. Hardin. Barry. K'y., 160.

* Dullam v. Willson, 53 Mich., 392 ; see Foster v. Kansas, 112 U. S., 201 ;
Kennard v. Louisiana, 92 U. S., 480 ; Mechem, op. «'/., sec. 454, and cases-
cited. * Ex partt Hennen, 13 Peters, 230 ; N. Y. Const.. V.. sec. 4.



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ioo THE LAW OF OFFICERS.

does not include the power to suspend/ though it may-
be expressly so provided by statute. 2 The removal
may be express or implied. Where the power is abso-
lute the appointment of another person to an office
with the intention of superseding the incumbent is
regarded as a removal. 8 But it is said that the removal
to be effectual must be brought to the notice of the
officer removed. 4

In one country, viz., Germany, the rule seems to be
that no officer possesses the arbitrary power of removal.
Nearly all the officers are appointed for life or for
fixed terms, and can be removed only as the result of
a conviction of crime or of the decision of a disci-
plinary tribunal. The proceedings before such disci-
plinary tribunals have many of the characteristics of a
criminal trial.2

V. — Legislative action.

It has already been pointed out that an office is not
a contract It is therefore perfectly within the power
of the legislature, in the absence of some special con-
stitutional limitation, to terminate the official relation
either by abolishing the office, shortening the term, de-
claring the office to be vacant, or by transferring the
duties of one office to another, or to increase its duties. 6

1 Gregory v. New York, 113 N. Y., 416.

* See New York Const., V., sees. 3 and 7 ; N. Y. L. 1875, c. 39.

8 People v. Carrique, 2 Hill, N. Y., 93 ; Bowerback v. Morris, Wallace's
Reports, C. C, 119 ; Stadler v. Detroit, 13 Mich., 346.
4 Commonwealth v. Slifer, 25 Pa. St., 23.

* See Schulze, op. cit. t I., 342 ; Stengel, WSrterbueh, etc. % sub verbo %
Bcamte.

•State v. Douglas, 26 Wis., 428 ; Butler v. Pa., 10 How, U. S., 402 ; Atty.-
Gen. v. Squires, 14 Cal., 13 ; Bunting v. Gales, 77 N. C. 283 ; cf. Mechem.
op. cii. % sec. 465.



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TERMINA TION OF THE OFFICIAL RELA TION. 101

The same is true with regard to municipal offices. The
municipal authority having the power to create offices
has the right to abolish them. 1 Finally the legislature
often has the right to terminate the official relation by
means of impeachment.*

1 Augusta ▼. Sweeny, 44 Ga.. 463 ; Ford v. Corns., 22 Pac. Rep., 378.
• See infra % IL, p. 396.



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BOOK V.

METHODS AND FORMS OF ADMINISTRA
TIVE ACTION.



CHAPTER I.

DISTINCTION OF THE METHODS FROM THE DIRECTIONS OF
ADMINISTRATIVE ACTION.

The administration has up to this point been con-
sidered at rest. Its organisation both at the centre
and in the localities, the relations of the officers and
authorities with each other, and the rules in regard to
the official service have been treated, it is hoped, with
sufficient fulness to give an adequate idea of the ad-
ministrative machinery and the character of the official
system. It now becomes necessary to consider the
methods and forms of the action for the purpose of
which the administrative system is formed.

Great care must be taken to distinguish the methods
and forms of administrative action from its directions,
that is, the various services which the administration
may attend to in the interest of the community. While
these latter vary greatly in different states, while in
some the directions of administrative action may be

I02



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METHODS OF ACTION. 103

much more numerous than in others, the forms and
methods of administrative action must be everywhere
essentially the same. Thus the administration may or
may not attend to the telegraphic or railway services
of the country. Whether it does or does not, it must
in all cases make some contracts, if the government is to
be conducted at all. Again the administration may or
may not exercise a supervision over the press. Whether
it does or does not, it must in all cases exercise a cer-
tain amount of police power.

The forms and methods of administrative action,
being everywhere essentially the same, may be classi-
fied essentially in the same categories. We may go a
step further. We may, on account of the uniformity in
the civilization which lies at the basis of all state forms
existing in or derived from western Europe, classify
also the directions of administrative action in essen-
tially the same categories. Thus everywhere we find
the administration acting as the man of business of
society, carrying on commercial undertakings too vast
to be well managed by individual or corporate effort,
or of such a nature as to produce better results to the
community under governmental than under private
management In some states this kind of administra-
tive action is much more important and extensive than
in others, but everywhere we find the action of the
administration, to an extent at any rate, commercial in
character. Again we find the administration acting
everywhere as the delegate of the sovereign and exer-
cising powers of compulsion over those persons who
are in obedience to the state ; here also we find in some
states this governmental activity, as we may call it,
much greater than in others, owing to the difference in



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104 ADMINISTRATIVE ACTION.

the ends of government sought after in different states.
Finally everywhere we find the administration acting
directly in furtherance of the welfare of individuals,
but neither by means of carrying on commercial under-
takings nor by means of the exercise of governmental
powers ; we find it, for example, collecting information,
filing and authenticating documents and records, and
issuing patents and charters of incorporation. But
here also we find great difference in the extent of this
sort of work done in different states. We may say
therefore that the directions of administrative action
are commercial, governmental, or directly in further-
ance of the public welfare. Any detailed treatment
of these directions of administrative action would re-
sult in the attempt to treat systematically of the entire
field of administrative action — of the five great admin-
istrative branches which have already been distin-
guished, viz., foreign, military, judicial, financial, and
internal affairs. Such a treatment will not be under-
taken here, as it is not within the scope of the present
work, which must, on account of the lack of space,
be confined to the presentation of the main principles
of the most important administrative systems of the
present time. Neither is it necessaiy, in order to a
correct understanding of the general principles of the
administrative law, to treat of these matters any further
than to state the categories in which they may be
placed, since the relations of the individual with the
administration resulting from the action of the admin-
istration will, on account of the general conformity of
the purposes of modern states, be essentially the same.
But while these great fields of administrative
activity and the directions of administrative ao



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METHODS OF ACTION. 105

tion may properly be left for a work more
special in its nature than the present one, while
a general idea of the work of the administra-
tion is obtained when it is seen that its activity is
governmental, commercial, or directly in furtherance
of the public welfare ; a somewhat detailed considera-
tion of the forms and methods of administrative action
must be undertaken here. For without it the whole
system of remedies by which individuals are protected
against a violation by the administration of the rights
guaranteed to them by the constitution or statutes of
the country cannot be understood. Since it is on the
efficiency and adequacy of these remedies that the real
value of all private rights depends, the importance of a
clear understanding of the methods of administrative
action can hardly be overestimated.



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CHAPTER II.

THB EXPRESSION OF THE WILL OF THE STATE.

The methods and forms of the action of the adminis-
tration are largely dependent upon the character of
the duties which the administration is called upon to
perform. The character of these duties is in turn de-
pendent upon the nature of the rules of administrative
law which the administration has to apply. These
rules of law are of two kinds. They either contain a
complete expression of the will of the state, or so in-
completely express the will of the state that some
further action is necessary in order that this will may
be capable of execution.

/. — Unconditional statutes.
Those rules of administrative law which completely
express the will of the state are found in statutes,
which are put into the form of unconditional commands
to the people to do or to refrain from doing some par-
ticular thing and which threaten the violation of their
provisions with the imposition of a penalty in the
nature of a fine or of imprisonment. 1 But in no
ordinary classification of the law would they be called
criminal laws, nor would they generally be inserted in
the penal code. Attention has already been directed 2

1 Cf. Gneist, Das EngHscke Verwaltungsrecht^ 1884, 320 et seq. ; Loening,
9p. cit. % 225 el seq. ' Supra, I., p. 16.

106



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EXPRESSION OF THE WILL OF THE STATE. 107

to the fact that criminal law does not form a special
portion of the law distinct from the other portions of
the law as is the administrative or the private law, but
that it is a law of sanction applied to well-defined
branches of the law in order to ensure the enforcement
of their provisions. But while those penal provisions
which are intended to protect from invasion the rights
of the pereon and property are generally classed to-
gether in the penal code, the penal laws which are
intended to ensure the enforcement of the adminis-
trative law are to be found scattered through the
statute book, generally in connection with that portion
of the administrative law which they are intended to
protect. These statements may perhaps be made
clearer by one or two examples. Take the customs
administrative law. As far as possible the provisions
of this law are put into the form of penal provisions.
The customs administrative law says to the importer
and the shipmaster that they must transact their
business in a certain way, that they must do given
things, as e. g. enter their ship and their invoices of
merchandise in a certain way, also that they must re-
frain from doing certain things, as e. g. that they
must not unload their ships at certain times of the day,
and then it threatens them with punishment if they do
not obey its provisions. The mere fact that such pro-
visions of administrative law have penalties attached
to their violation does not make them any the less ad-
ministrative in character. 1 The legislature has by this
means endeavored to ensure that the business of import-
ing merchandise shall be transacted in a certain way,
since, if it is transacted in this way, the duties imposed

1 See Taylor et als. U. S., 3 How., 197, 210.



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io8 ADMINISTRATIVE ACTION.

upon imported merchandise will be easily collected.
Again in a great many cases, which form together
what is known as police law, the legislature has
adopted a similar method to protect the inhabitants of
the state from the happening of accidents. Thus in
the larger cities the law often says that individuals
must build their houses in a certain way in order to
avoid the dangers of fire and ill-health resulting from
careless construction and unsanitary arrangements. In
order to force the individual to build his house in the
way required there is a penalty attached to the viola-
tion of the provisions of such police laws. But again
we would hardly insert such laws in the penal code or
class them as a part of the criminal law, though it is
often the case that such police laws are sanctioned by
the penal code, i. e. violations of them are misdemeanors. 1
Another example of such rules of administrative law
completely expressing the will of the state is to be
found in those rules of administrative law with regard
to the assessment and collection of a long series of in-
direct taxes. The law, as in the case of the customs
administrative law, lays down the way in which all
payers of indirect taxes shall transact their business
and punishes the violation of its provisions with a
penalty. For if the business of the payer of indirect
taxes is transacted in the way provided by the law,
the assessment and collection of the taxes are easy
matters. Indeed it may be said that the tax assesses
and collects itself where the method of payment by
means of the purchase from the government of stamps,
and the affixing of them to taxable articles is adopted.
These are only a few examples of this method of for-

1 Cf. Wharton, Criminal Law, 9th Ed., I., 23 and 28.



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EXPRESSION OF THE WILL OF THE STATE. 109

mulating the rules of administrative law. Every



Online LibraryFrank Johnson GoodnowComparative administrative law: an analysis of the administrative ..., Volume 1 → online text (page 34 of 51)