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480; Attorney General v. Boston, 123 Mass., 460; Wellington etaL Petition-
ers, 16 Pickering, Mass., 87, 105.

3 31 Car. II., cap. 2, X. ; Church, op. cit., 93.

4 Rex v. Chichester, 2 El. & El., 209 ; King v. Justices, 4 Dow. & Ry., 735 ;
United States v. Seaman, 17 Howard, U. S.,225; Gaines t. Thompson, 7 Wal-
lace, 347; People v. Commissioners, 30 N. Y. f 72; Burch v. Hardwicke, 25
Grattan, Va., 51. An important exception is made in the case of the habeas
corpus, see Church, op. cit, t c. xiii.



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2o6 CONTROL OVER THE ADMINISTRATION.

with the law. Thus the decision by a board of
local highway commissioners as to the route to be
taken by a highway may not be reviewed by the
^courts, 1 while the refusal of the United States secre-
tary of the interior to issue a patent for lands after
all questions of discretion had been decided in favor
of the applicant has been held to be the violation of a
ministerial duty and may be overcome by application
to the court.' This rule is, however, subject to one or
two exceptions. The questions of fact which have
been decided by an administrative authority in decid-
ing as to the title to office may be reviewed by the
courts on either mandamus or quo warranto. 1 Fur-
ther the courts will not permit administrative officers
so to make use of their discretion as to make a deci-
sion which is absolutely unsupported by the evidence
but will on certiorari quash such decision. 4 Again
the courts hold that where a statute provides that an
officer may be removed from office for cause only, they
have the right to control the discretion of the remov-
ing officer in deciding what is cause. 5 The courts, it is
true, do not ground their decisions on any desire to
control the discretion of administrative officers, but on
the proposition that the question, what is cause, is not
a question of discretion but a question of law. But
this does not alter the fact that, as a result of these

1 People v. Collins, 19 Wendell, 56.

* United States v. Schurz, 102 U. S., 378. See also People v. Beach, 19
Hun, N. Y., 259.

"State v. Garesche, 65 Missouri, 480; People v Pease, 27 N. Y., 45.
4 People v. Board of Police, 39 N. Y., 506 ; People ex rel. Hogan t. French ;
People ex rel. McAleer v. French, 119 N. Y., 493, 502.

* People v. Board of Police, 72 N. Y., 415 ; People v. BoarfL of Fire Com-
missioners, 73 N. Y., 437 ; State v. St. Louis, 90 Mo., 19 ; Stockwell v. Town*
ship Board, 22 Mich., 34 1 ; see also Kennard v. Louisiana, 92 U. S. t 48a



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JURISDICTION OF THE HIGHER COURTS. 207

decisions, the courts do exercise a control over the dis-
cretion of administrative officers — and that too upon a
point where many think that it is necessary that the
administration should possess full and unlimited dis-
cretion. Finally in several instances special statutes
have been passed which expressly give to the courts a
control over the discretion of the administration. Thus
the present customs administrative act gives to the cir-
cuit courts of the United States the power on a sort of
statutory certiorari to reverse or amend the decisions
-even of fact of the board of general appraisers as to
classification of articles for duty under the tariff acts. 1
Thus also the legislature of New York has provided *
that if the commissioners of excise in the larger cities
refuse arbitrarily to issue a license for the retail sale of
liquor to be drank on the premises, the party who has
thus been refused a license may appeal to the courts
for the issue of a mandamus to the commissioners to
grant the license. Thus also the legislature of the
same commonwealth has provided 8 that in case any
person is aggrieved by the decision of the assessors as
to the value of his property for the purposes of taxa-
tion, he may have a certiorari on which the courts may
reverse or amend the decision of the assessors on the
ground both of illegality and of unfairness or dispro-
portionality. 4

Finally for political reasons the courts have very
generally laid down the rule that they will not exer-

1 U. S. Laws of 1889-90, c. 407, sec. 15. Here it is probably a remedy ex
debitojustitia.
* L. 1886, c. 496.

3 L. 1880, c. 269.

4 See also New York Code of Civil Procedure, sec. 2140, which provides that
the court in deciding on the writ of certiorari may consider the weight of the
evidence.



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208 CONTROL OVER THE ADMINISTRATION.

cise their administrative jurisdiction where it brings
them into actual conflict with the chief executive. 1
The rule is clear as to the President of the United
States, but is not so clear as to the governors of the
various commonwealths.' Most of the cases where the
mandamus has been issued to the governor have been
friendly suits where the governor has not objected to
the jurisdiction ; indeed one of them holds expressly
that the court will issue the writ of mandamus to the
governor if he does not object. 8 Where, however, the
courts may issue the writs without coming into direct
conflict with the executive they seem to have no objec-
tion to issuing them, even if they will be forced to
annul the acts of the executive. 4 Thus they have is-
sued a habeas corpus to consider the validity of an act
of the governor in the extradition of a fugitive from
justice, and have decided that such act was not in
accordance with the law. 5 In the case of Ex parte
Merryman, a case of habeas corpus, however, the writ
absolutely failed of its purpose because the officer to
whom it was issued was supported in his action by the
President, and the court refused to take any further
step on account of the danger of a conflict with the
executive. Some of the commonwealths have endea-

1 State of Mississippi v. Johnson, 4 Wall., 475 ; Grier v. Taylor, 4 McConU
206 ; People v. Hill, 13 N. Y. Supplement, 186 ; New York Law Journal,
April 13, 1 891 ; affirmed on different grounds in 126 N. Y.. 497 ; High, Ex*
traordinary Legal Remedies \ 2d Ed., sec. 118 and cases cited.

* As to the mandamus see Cotton v. Ellis, 7 Jones, N. C. 545 ; State ▼.
Chase, 5 Ohio St., 528.

* People v. Bissell, 19 111., 229. As to the quo warranto see Attorney Gen-
eral v. Barstow, 4 Wis., 567.

4 See People v. Piatt, 50 Hun, 454.

5 People v. Curtis, 50 N. Y., 321 ; People v. Brady, 56 N. Y., 182 ; see also
Ex parte Merryman, Taney, 246, 9 American Law Register \ 524 ; Ex parti
Field, 5 Blatchford, 63.



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JURISDICTION OF THE HIGHER COURTS. 209

vored to extend this exemption from the operation of
the administrative jurisdiction of the courts to the heads
of departments. But this is not the best rule either in
the United States or England, and is in conflict with
the decisions of the United States Supreme Court 1

5. Distinction between legal and equitable remedies.
— Besides these general rules which are applicable to
all the remedies by which the administrative jurisdic-
tion of the courts is governed there are a number of
special rules with regard to each one of the remedies.
Thus there is quite a distinction between the extraor-
dinary legal and the equitable remedies. While the
former are almost always issued where the act of the ad-
ministration is absolutely illegal in character, the latter
may be issued only in those cases where the applicant
for the remedy can bring his case under one of the
recognized heads of equitable jurisdiction, such as that
the act complained of is a breach of trust, will result
in irreparable mischief to real property or will lead to
a, multiplicity of suits.* Further if we compare the
injunction with the prohibition, whose purposes are
largely the same, we find that the injunction appears
to be, in the United States at any rate, the popular
remedy. Although legally the courts have about the
same discretion as to the issue of both of these reme-
dies, as a matter of fact they seem to issue the injunc-
tion much more easily than the prohibition, and indeed
in some of the commonwealths make use of the pre-

1 .^ee U. S. v. Schurz, 102 U. S. t 378. There is also conflict on this point in
the Knglish decisions. See Queen v. Lords, etc., 4 Ad. & EL, 286 ; Same v.
Same, 4 Eng. Rep., 277 ; Same v. Same, L. R., 7 Q. B„ 387 ; cf. Gneist,
Das Englischt VerwaUungsrecht, 1884, 712.

* Green v. Mumford, 5 R. I., 472, 475 ; Dow r. Chicago, 11 Wall., 108 ; Hil-
liard, Injunctions, 3d Ed., 486.



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no CONTROL OVER THE ADMINISTRATION.

liminary injunction with such freedom as iu many
cases to paralyze almost completely the action of the
administration. This is unfortunately the case in New
York. Here police officers have in several instances
been by the injunction restrained from preventing pal-
pable violations of the law. 1 In England, however,
the injunction seems rarely to be made use of as a
means of preventing administrative action. Gneist
does not even mention it as one of the remedies in his
description of the administrative jurisdiction of the
English courts, but speaks of prohibition only ' ; and
a search through the English digests reveals very
few cases of the use of the injunction against adminis-
trative officers.*

6. Administrative jurisdiction of the United State*
federal courts. — In the case of the commonwealth
courts the general rule is that the administrative juris-
diction is possessed by all those courts which have
inherited the jurisdiction of the court of king's bench
— and most courts of general common law jurisdiction
have inherited such jurisdiction. This rule prevents
courts with a mere appellate jurisdiction from exercising
the administrative jurisdiction 4 ; and results also in
the fact that the equitable remedies may be issued
only by courts possessing equity jurisdiction. The
administrative jurisdiction of the United States federal
courts is not however governed by these general prin-

1 A good collection of these cases was made in an editorial of the New York
Times of April 23, 1886.

* Das Englischt Verwaltungsrecki, 1884, 404.

* That it is used now and then may be seen from the cases of Ellis v. Eaif
Grey, 1 Simon, 214 ; and 1 Vesey Sr., 188.

4 Morgan v. Register, Hardin, 609 ; State v. Biddle, 36 Ind., 138 ; State t.
Ashley, 1 Ark., 513 ; Memphis v. Halsey, 12 Heiskell, Tenn., 210 ; see also*
Perry v. Shepherd, 78 N. C, 83.



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JURISDICTION OF THE HIGHER COURTS. 211

ciples, but is so fixed in detail by the constitution and
the statutes that it becomes necessary to have ref erence-
to these and to the decisions made in interpretation of
them in order to understand what exactly is the juris-
diction of these courts. It has been held in a series of
decisions that the United States courts generally have
no power to issue the mandamus or certiorari except
to aid an already acquired jurisdiction : the Supreme
Court, because the constitution does not include this,
power within the original jurisdiction given to that
court * ; the circuit courts and the district courts, be-
cause such power has not been granted to them by the
judiciary act* The supreme court of the District of
Columbia may, however, as a result of the fact that it
has inherited for the territory of the District of Colum-
bia the jurisdiction of the court of king's bench, issue j
the mandamus* and probably as a result of the applica-
tion of the same principle the writ of certiorari also.!
It is to be noted, however, that the recent customs
administrative act gives the power to the circuit courts
to issue a sort of statutory certiorari to the boards of
general appraisers in customs matters. 4 Where, how-
ever, it is necessary to issue such writs in order to
enforce a jurisdiction already in other ways acquired,
they may issue the mandamus, and as a result of the
application of the same principle the certiorari. 5 In

1 Marbury v. Madison, I Cranch, 137 ; In re Kaine, 14 Howard, 103 ; Ex
parte Vallandigham, 1 Wallace, 243 ; U. S. v. Young, 94 U. S. 258, 259.

1 Mclntire v. Wood, 7 Cranch, 504 ; U. S. v. Smallwood, 1 Chicago Legal
News, 321 ; Ex parte Van Orden, 3 Blatchford, 167 ; Patterson v. U. S.,2
Wheaton, 221.

* Kendall v. U. S., 12 Peters, 524.
4 Supra, II., p. 207.

• Lansing v. County Treasurer, 1 Dillon, 522 ; see also Rees v. City of Water-
town, 19 Wall. 107.



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312 CONTROL OVER THE ADMINISTRATION.

some of the cases laying down this rule a niandamus
was issued by a circuit court to a municipal corporation
to compel it to provide for the payment of a judgment
obtained in the court against such corporation. Further
as a result of the provisions of the United States con-
stitution the Supreme Court, it would seem, has such
power in cases where a commonwealth, or a foreign
diplomatic or consular officer is a party. 1 The rules are
about the same with regard to the prohibition. The Su-
preme Court has no right to issue a prohibition except in
admiralty matters 2 ; and it is very doubtful whether
the circuit courts may issue a prohibition at all. 8 The
rules are, however, more liberal with regard to the in-
junction, the habeas corpus, and the quo warranto. The
power to issue the habeas corpus even to the adminis-
trative authorities of the commonwealths is given to all
the United States courts, except the Supreme Court 4
They have also the right to issue the quo warranto
when the question at issue concerns the denial of the
right to vote on account of race, color, or previous con-
dition of servitude for any officer other than presiden-
tial elector and legislative officers, or concerns the
disqualification for office resulting from the violation
of official oath, by engaging in insurrection or rebellion
against the United States or giving aid and comfort to
its enemies. 5 The Supreme Court may not issue the
injunction except to aid an already acquired jurisdic-
tion and except in cases where a commonwealth, or a

1 Const., Art. III., sec. 2, par. 3.

» U. S. Rev. Stats., sec. 688; U. S. v. Peters, 3 Dallas, lai ; Ex park
Christy, 3 Howard, 292 ; Ex parte Insurance Co., 118 U. S., 61.

* U. S. Rev. Stats., sec. 716 ; In re Binninger, 7 Blatchford, 159.
4 U. S. Rev. Stats., sees. 751-766 ; Ex parte Barry, 2 How. 65.

* Amendment 14, sec. 3 ; U.S. Rev. Stats., sec. 563, para. 13 and 14.



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JURISDICTION OF THE HIGHER COURTS. 213

foreign diplomatic or consular officer is a party. 1 The
other United States courts have a large power, except
in tax cases, to offer the equitable remedies in proper
cases against the action of both national and common-
wealth officers though they are pretty careful in their
issue of the injunction. 2

These rules apply as well to the issue of these reme-
dies against commonwealth officers as to their issue
against the officers of the United States government
If they have not an already acquired jurisdiction in the
cases where this is necessary, they may not issue the
writs. If they have they may. 8 On the other hand
the courts of the commonwealths may never exercise
their administrative jurisdiction in order to control the
actions of the officers of the national government. For
the United States courts have exclusive jurisdiction
generally of all cases arising under the constitution
and laws of the United States. 4 The result is that the
officers of the national government are not nearly
so subject to the administrative jurisdiction of the
courts as are the commonwealth officers. But this
control is not nearly so necessary as in the common-
wealth administration. For the administrative control
is so strong in the United States administrative sys-
tem that the mistakes of subordinate administrative
officers are quite easily corrected on appeal 5 ; and if on
such appeal the aggrieved individual is not able to ob-

1 U. S. Const., Art. III., sec. 2, par. 3.

• U. S. Rev. State., sec. 629, par. 2.

• Supra, II., p. 211 ; Graham v. Norton, 15 Wallace. 247 ; Commonwealth ▼.
Dennison, 24 Howard, 66.

4 U. S. Const., Art. III., sec. 2, p. 1 ; Brewer v. Kidd, 23 Mich., 440 ; Able-
man v. Booth and U. S. v. Booth, 21 How., 506; Tarble's Case, 13 Wall.,

397-
•Butterworth v. U. S., 112 U. S. t 50, 57.



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2i4 CONTROL OVER THE ADMINISTRATION.

tain satisfaction he in all cases has the right of applying
to the supreme court of the District of Columbia, which
has the common law administrative jurisdiction for
the territory of the District of Columbia, where all the
heads of departments are to be found ; and appeal may
be taken from this court to the Supreme Court of the
United States.

II. — Special and statutory administrative jurisdiction of the

lower courts.

The special and technical character of the common
law administrative jurisdiction of the courts has made
it seem advisable in certain rather exceptional cases,
where no one of the writs affords the proper relief, to
provide by statute for special appeals, generally to the
lower courts, from the decisions of administrative offi-
cers, when either questions of law alone or questions of
both law and fact may be considered.

1. Appellate jurisdiction of courts of quarter sessions
or county cowrts. — It has been shown that, after the
abolition of the court of star chamber, which served
as an appellate court on questions of both law and fact
for the decisions of the subordinate English adminis-
trative officers, it was provided in a series of statutes
that appeals should thereafter be taken to the court of
quarter sessions of the county, which was composed of
the justices of the peace of the county. This sort of
administrative jurisdiction differs considerably from
that of the royal courts, which has been considered.
In the first place, the remedy is a general one — a simple
appeal against the act complained of — while the juris-
diction is enumerated. In the royal courts it will be
remembered that the converse is true, t. e. the remedies



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JURISDICTION OF THE LOWER COURTS. 215

are special in character and the jurisdiction is general.
No one can appeal to the quarter sessions from an
order or decision unless a statute specially permits an
appeal to be taken in the class of cases of which the
one at bar is one. 1 In the second place, the appeal may
be and is usually taken on questions of fact. If ques-
tions of law are raised the proper courts to appeal to
are the royal courts, to which appeal goes by special
case or special writs. 8 In the third place, the general
conditions under which the appeal may be taken are
that the party appealing must be immediately aggrieved
by the act complained of, not consequentially but im-
mediately aggrieved. Thus the mapping out of a road
is not an immediate grievance. 8 Officers of the locali-
ties may as private individuals appeal in the interest
of their locality. 4 In the fourth place, while this sort
of administrative jurisdiction is enumerated in the
statutes still the statutes have been based on general
principles in allowing these appeals. These are that
the appeal is only granted where the rights of personal
liberty and private property are involved. 5

While in the United States the statutes granting a
power of appealing from the decisions of the adminis-
trative officers to the courts of quarter sessions or
county courts, which have largely taken their place,
are not nearly so numerous, still we do find not a few
instances of them. Thus in New York any one inter-
ested may appeal to the county court from the decision
of the superintendent of the poor as to the settlement
of a poor person. 6 An instance of a similar power of
appeal, though in this case the appeal does not go to

1 Rex v. Hanson, 4 B. & Aid. , 52 1. * Rex v. Middlesex J J. , 1 Chitty Rep. , 366.
1 Still v. Brennan, 41 L. J. M. C, 85. 4 Rex v. Colbeck, 11 Ad. & El., 161.
* Gneist, Das EnglUcheVerwaltungsrecht, 1884, 397. * L. 1872, c 38.



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216 CONTROL OVER THE ADMINISTRATION.

the county court, is the power given to any individual,
who has been refused a patent for an invention by the
commissioner of patents, to appeal from this decision
to the supreme court of the District of Columbia. 1

2. Special case. — A most notable example of these
attempts to supplement the administrative jurisdiction
of the higher courts is to be found in the English
habit of stating a special case. This habit, as has been
indicated, 9 originated in a clause in the commission of
the justices of the peace which enjoined upon them to
ask the advice of the royal judges in cases where they
were in doubt. These special cases are mostly state-
ments of facts, are made up in both the quarter and
the special sessions, and go up to the higher courts
which decide the matter for the justices. At first the
decision of the royal courts was only consultative in
character, the justices not being bound by it, but the
judicature act of 1873 has made the decision, it is be*
lieved, binding upon the justices and mandatory. 8 The
courts have all alone encouraged the sending up of
these special cases which have almost replaced the
certiorari. 4 As a general rule the allowance of a
special case is in the discretion of the justices. 5 On a
special case the courts do not, as a rule, interfere with
the discretion of the justices. 6 The special case, while
not common in the United States, is not unknown to
the American law.

1 U. S. Rev. Stats.* sec. 491 1. This is in place of the administrative appeal
to the head of department ; Butterworth v. U. S., 112 U. S., 50, 57.

* Sufira, II., p. 196.

'Wallsall v. Ry. Co., 48 L. J. M. C. t 65.

4 Gneist, Das Englisehe Verwaltungsrecht, 1884, 407 ; Smith. Practice at
Quarter Sessions, 518-520.

* Ex parte Jarvin, 9 Dowl. P. C. 120. But see Smith, op. nt. t 521.

* Rex v. Ry. Co., 43 L. J. M. C, 57 ; Rex v. Kent, JJ., 41 J- P.. 263.



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CHAPTER VI.

THB ADMINISTRATIVE .JURISDICTION IN FRANCE.
/. — History.

In France, as has been said, the administrative juris-
diction has been given to special courts. France may
be said to have founded the modern system of special
administrative courts. Even before the revolution
France possessed special administrative courts. Some
of these were independent of the active administration,
and had been established simply as a result of the
application of the economic principle of the division of
labor. Such e. g. were the court of moneys and the
chamber of accounts. But by the side of these tri-
bunals there grew up in the 17th century new authori-
ties completely dependent upon the active administra-
tion, and purposely made dependent upon it in order
that the administration might have perfect freedom of
action in its endeavor to perform the greater tasks
imposed upon it as a result of the great increase of the
powers of the Crown. 1 .While in England as late as
1701 the ordinary courts were under the control of the
Crown, and there was consequently no need, in order
to make the administration independent in action, of
forming special administrative courts, in France the

1 Aucoc, op. «/., I., 396, 397.
217



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ai8 CONTROL OVER THE ADMINISTRATION.

ordinary judicial bodies were quite independent of the
Crown. The chief judicial bodies in France before
1789 were the parliaments, and their members were
independent of the Crown as a result of the fact that
the position of member of parliament was venal and
bought and sold as property. The powers of these
parliaments were never clearly defined, and in the
general confusion of the time as to the distribution
of the three great so-called powers of government,
the parliaments often tried to assume a control over
the actions of the administration. When Louis XVI
came to the throne in 1774, it was seen that great
reforms in the administration of the government and
in the social conditions of the people must be under-
taken. For this purpose the King chose Turgot as one
of his ministers. The reforms which Turgot endeavored
to introduce did not meet with the approval of the
privileged classes. As the parliaments were composed
of members of the privileged classes they opposed these
reforms, refused to register the various edicts issued by
the King, 1 encroached upon the royal power by them-
selves issuing decrees, and tried to hinder the action of
the royal officers by issuing commands to them and
citing them to appear before the parliaments to answer
complaints made against them. 2 When the liberal ele-



Online LibraryFrank Johnson GoodnowComparative administrative law: an analysis of the administrative ..., Volume 1 → online text (page 42 of 51)