UC-NRLF B 3 110 SbM SEPARATION OF POWERS ADMTKIS f ivATIVE EXERCISE OF THE POLICE POWER BY IIIOMAS REED POWELL SUBMITTED IN PARTTaL FULFILMENT OF THE REQUIRKMt- .>TS FOR THE DEGREE OF DOCTOR OF PHILOSOFHV IN THE Faculty of Political Science Columbia University NEW YORK 1913 EXCHANGE THE PRINCIPLE OF THE SEPARATION OF POWERS IN ITS APPLICATION TO THE ADMINISTRATIVE EXKRCISEVLA OF THE POLICE POWER BY THOMAS REED POWELL SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE Faculty of Political Science Columbia University REPRINTED FROM Political Science Quarterly Vol. XXVII, No. 2, pp. 215-238; Vol. XXVIII, No. i, pp. 34-48 Harvard Law Review Vol. XXIV, No. 4, pp. 268-289; No. 5, pp. 333-346; No. 6, pp. 441-459 NEW YORK I913 PREFACE This monograph forms part of a study of the control exer- cised by American courts over the action of administrative authorities in the formulation and execution of governmental policy. Other portions have been published in the American Political Science Reviezv^ Volume I, pp. 583-607, and the Harvard Laiv Review, Volume XXII, pp. 360-366. The completed study will include a detailed consideration of judicial control over administrative action dealing with revenue and eminent domain, the regulation of commerce and of corporations, the control and disposition of the public domain, and the administration of the postal service. Only by an examination of the whole field of administrative activity can we reach a satisfactory comprehension of the limits of judicial control. For the powers which may be exercised by administrative authorities depend largely upon special considera- tions peculiar to the various individual interests which adminis- trative action may affect. They cannot be determined solely by reference to general principles defining the theoretical relation between the judiciary and the administration as separate depart- ments of government. The Study of Administrative Law in the United States owes to Professor Goodnow of Columbia University a debt which all his fellow laborers gratefully acknowledge. He first established it as a separate field of investigation. He introduced American scholars to the knowledge of the administrative systems of for- eign countries. His wide scholarship, discriminating insight and sound practical sense have been of incalculable service in the comprehension and solution of American problems. To him, in a very special sense, is this monograph indebted. Undertaken at his suggestion, it has enjoyed the benefit of his continued aid and counsel. Acknowledgment is also due to the published work of Pro- fessor Freund of the University of Chicago and to valuable sug- gestions from Professor Munroe Smith of Columbia University, March 30, 1913 ^ n A C O O CONTENTS Part I ADMINISTRATIVE EXERCISE OF LEGISLATIVE AND JUDICIAL POWER PAGE CHAPTER I The Delegation of Power to Act 215 Section!. Constitutional aspects of the problem 215 Section 2. Power to determine conditions under which a statute is to be operative 222 Section 3. Power to make regulations 225 Section 4. Power to ascertain facts and apply rules of law in con- troversies 232 Section 5. Conclusion 236 CHAPTER II Principles of Judicial Review 34 Section i. Introduction 34 Section 2. Judicial control over administrative regulations ... 36 Section 3. Effect of the failure of the administration to take action 43 Section 4. Finality of administrative orders and adjudications . . 46 Part II ADMINISTRATIVE EXERCISE X)F THE POLICE POWER CHAPTER I Precautionary Regulation 2^19 CHAPTER II Administrative Orders and Execution 333 A. Necessity for notice and hearing 334 (i) General regulations 334 (2) Special orders 334 (3) Adjudications 335 (4) Summary execution 336 P>. Judicial review 338 CHAPTER III Judicial Review in Actions for Damages 441 A. Liability of public corporations 441 (i) The state 441 (2) Municipalities 441 B. Liability of Officers 442 (i) Denial of permission 442 (2) General regulations 443 (3) Special orders and adjudications 444 (4) Administrative execution 446 (a) In absence of opportunity to be heard .... 447 (b) After a hearing 450 SEPARATION OF POWERS ADMINISTRATIVE EXERCISE OF LEGISLATIVE AND JUDICIAL POWER I THE DELEGATION OF POWER TO ACT BY THOMAS REED POWELL REPRINTED FROM POLITICAL SCIENCE QUARTERLY Vol. XXVIL, No. 2 NEW YORK PUBLISHED BY GINN & COMPANY 1912 SEPARATION OF POWERS : ADMINISTRATIVE EXER- CISE OF LEGISLATIVE AND JUr>iC(AtrPOWEfe' ' I. THE DELEGATION OF POWER TO ACT I . Constitutional aspects of the problem THE constitutions of our state and federal governments betray in many ways the apprehension of undue aggres- sion on the part of executive and administrative authori- ties. The Enghsh theory that the residuary powers of govern- ment are vested in the crown finds no counterpart in our pubhc |law. Nor were the framers of our various constitutions con- tent with the general principle that the executive has only those powers specifically enumerated. Executive action is limited, not only by clauses requiring the concurrence of other depart- ments of government, the so-called checks and balances, but by express provisions that the executive authority shall not exer- cize the powers belonging to the other branches. This so- called distributing clause,' which appears in most of our state constitutions, is to be inferred also in the federal Constitution, where the political theory known as the separation of powers becomes through judicial decision a rule of law. The Supreme Court has asserted that all the powers of government, whether state or national, are divided into three grand departments, and that " as a general rule, the powers confided by the Constitution to one of these departments cannot be exercized by another."^ Hence the exercise of any authority by the executive, even by reason of express delegation from the legislature, may be ques- tioned and condemned in judicial proceedings, on the ground that the power sought to be conferred or exercized is not in its nature executive, but belongs more properly to the legislative or judicial department. Furthermore, the federal Constitution by its fifth and four- teenth amendments provides that no person shall be deprived ' For an example of such a clause, cf. infra, p. 218, note. 2 Kilbourne v. Thompson, 13 Otto, 168 {1880). 215 2i6 POLITICAL SCIENCE QUARTERLY [Vol. XXVII of life, liberty or property, either by the national or by the ?)tate governnico<:9, without due process of law. And the de- velopment of "diif constitutional law has resulted in the exercise •by. thc'Jt^der^t Suptem^ Court of the ultimate power to deter- rtii'ne what is " due process." Similar clauses in state constitu- tions vest in the state courts the power to declare the action of state administrative authorities wanting in due process within the meaning of the state constitution, even where such action is not regarded by the federal courts as prohibited by the due- process clause of the fourteenth amendment. So that the legality of any executive action and of any interference with person or property may always be challenged in judicial pro- ceedings, and depends, in last analysis, upon its conformity to a rule of law laid down by the courts. The question of the validity of executive and administrative action thus presents itself in a twofold aspect : Is it an exer- cise of power by a department of government to which such power may not legally be confided? Is it a denial to the indi- vidual of due process of law? With respect to state action, the state court is the final judge of the question whether the action of the executive authority is improper as a violation of the distributing clause. In Consoli- dated Rendering Company v. Vermont,' where it was urged that a state statute which gave to tribunals or commissions other than courts the power to compel the production of books and papers was a violation of the fourteenth amendment as an attempt to confer judicial powers on non-judicial authorities, the Supreme Court answered brusquely, without citation of authority: "There is no provision in the federal Constitution which directly or impliedly prohibits a state, under its own laws, from conferring upon non-judicial bodies certain functions that may be called judicial." =* But this statement must be ' 207 U. S. 541 (1908). ' Cf. Keetz v. Michigan, 188 U. S. 505 (1903), wliere, in reply to the objection that the jxiwer vested in a board of medical examiner.s to determine whether one had been legally registered imder a prior statute involved the decision of a legal question, the court asserted that " no provision in the federal Constitution forbids a stale from granting to a trilumal, whether called a court or a board of registration, the finid determination of a legal question." No, 2] SEPARA TION OF PO WERS 217 subject to the qualification that it does not apply to the con- sideration of objections made on the ground that such delega- tion results in a denial to the individual of due process of law. Where individual rights are not concerned, the state may appor- tion governmental power as it sees fit. But the contention that executive action is a denial to the individual of due process is, when properly raised, always one on which the federal court must express its opinion. For a state cannot, even by its con- stitution, escape from the limitations of the fourteenth amend- ment.' These two aspects thus tend to merge into one. Wherever legislative or judicial action is deemed a necessary preliminary to any interference with private right, executive or administra- tive action is invalid as wanting in due process under the fifth or the fourteenth amendment. Though the principle of the separation of powers is said to be implied in the federal Con- stitution, the action of federal authorities is usually questioned under the due-process clause. The acts of state authorities, may be questioned by the federal courts under that clause only ; but this can make little difference in practical results, for, where the individual is entitled to have any matter committed to the determination of judicial authorities, an administrative inter- ference is wanting in due process. And the question of due process is also raised by the substitution of administrative for legislative action, at least where attempt is made to define what shall constitute a crime. Thus, though the fourteenth amend- ment does not inhibit the administration from all exercises of power in their nature legislative or judicial, it does inhibit in those cases in which the individual is entitled to legislative or judicial action. And where he is not so entitled, a state court is unlikely to regard the administrative action as an exercise of power committed solely to other departments. So that by proper pleadings an individual must be able to secure under the fourteenth amendment any relief that would be open to him by reason of a violation of the distributing clause. The general 'Railroad Company v. McClure, lo Wallace, 511 (1870). New Orleans Gas Light Company v. Louisiana Light Company, 115 U. S. 650, at p. 692 (1885). 2i8 POLITICAL SCIENCE QUARTERLY [Vol. XXVII problem of administrative action may thus be considered as a question of due process, even though many of the cases are based on an interpretation of the distributing clause. While the requirements of due process seem in theory less drastic than the specific inhibitions of a distributing clause,' the distinction is nullified in practice by the liberal attitude of the courts in determining what is an exercise of legislative or judicial power. The power of an executive or administrative authority to de- cide questions of law or fact must rest upon some constitutional or statutory provision. Where it is based on a provision of the federal Constitution, the right to act cannot be questioned; but no7i constat that the courts may not review or revise the action taken. A provision in the federal Constitution forbid- ding such review would be a qualification of the due-process clause. But no such provision exists, and judicial review of executive action is justified by the same reasoning which sustains the exercise of a similar power over legislative enact- ments. The power to declare statutes unconstitutional enables the courts to nullify any legislative delegation of power to act or any statutory prohibition of judicial review, whether con- tained in an act of Congress or of a state legislature. And such provisions, even in a state constitution, must measure up to the requirements of the fourteenth amendment. The decision or order of an executive or administrative authority may affect the individual directly, through its express reference and application to his particular case, or mediately, through the action of some subordinate in enforcing a general 'But in Portland v. Bangor, 65 Me. 120 (1876), the requirements of due process seem to ho deemed even more stringent than those of the distributinp; clause. A delegation of power to overseers to commit to the workhouse persons found by them to be vagrants, which had previously been sustained under the state constitution in Adeline G. Nott's case, 11 Me. 208 (1834), and in Portland v. Bangor, 42 Me. 403 (1856), was held "abrogated by the fourteenth amendment of the federal Consti- tution." Article III of the Maine Constitution of 1S19 reads as follows: "Sec. I. The powers of this government shall be divided into three distinct departments, the Legis- lative, Kxecutivc and Judicial. Sec. 2. No person or persons, lielonging to one of these dc|)artments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directeil or permitted." Thorpe, Federal and State Constitutions, vol. iii, p. lOSi. No. 2] SEPARATION OF POWERS 219 order designed for all future cases that may fall within its scope. A general order, when complained of, will usually be alleged to be legislative in nature, and objection will be directed against the power of the official to take any action whatever, as well as against the specific action taken. Where the officer whose determination is in question deals directly with the indi- vidual, his act will more commonly be complained of as judicial in nature. Here the power to act may be conceded, and ob- jection confined to the procedure by which the action is taken or to the fact that an opportunity for judicial review is denied — that the administration attempts to make a final and not merely a preliminary disposition of the rights of the individual. The courts have been compelled to ascertain the meaning of " due process " without the aid of definitions in any constitu- tion. They have held that it does not require judicial process, even where such proceedings, if authorized, would be entirely proper. The Supreme Court has declared that there are cer- tain matters which may be presented in such form that the ju- dicial power is capable of acting on them, and which are sus- ceptible of judicial determination, but which the legislature may or may not bring within the cognizance of the courts, as it may deem proper.' " It is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact." Whether any given dispute may be settled by administrative rather than judicial authorities depends, rather, upon the nature of the subject matter in controversy. However perfect the judicial theory that executive and ad- ministrative officers cannot exercize legislative or judicial power, the courts have allowed the legislature in numerous instances to delegate to these authorities the power of ascertaining facts upon whose existence depends the operation, suspension or revival of a statute,^ and the power of filling in the details of a statute 3 — actions admittedly proper for the legislature itself to perform. ^Murray's Lessee v. Hoboken Land and Improvement Company, 18 Howard, 272 (1855). ^ Field V. Clark, 143 U. S. 649. Cf. infra, p. 223, 224. ^ Buttfield V. Stranahan, 192 U. S. 470. Cf, infra , p. 225. 220 POLITICAL SCIENCE QUARTERLY [Vol. XXVII And they have sustained the delegation of power to designate the concrete things described by the statute in general terms/ to discover in individual instances whether there has been com- pliance with the provisions of the statute/ or to ascertain the existence of facts on which depend the rights or duties pre- scribed by statute ^ — functions commonly exercized by the judiciary. Chief Justice Marshall declared in 1825 : The diflference between the departments undoubtedly is, that the legis- lature makes, the executive executes, and the judiciary construes the law ; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily/ But such inquiry has been forced upon them wherever possible by every litigant who has felt himself aggrieved by any exer- cise of admistrative power. The cases involving these questions come before the courts in various ways: in proceedings directly against an officer seeking to command or to enjoin certain action ; in suits for damages ; in defences raised in judicial proceedings brought by officers to enforce compliance with their decrees; in de- fences in criminal proceedings instituted to punish the violation of official orders; or in suits between individuals where the rights of one or both are based on some official action. The first method of judicial redress, that of commanding or enjoining action, is not available against the chief executive of the United States ^ or his higher subordinates,^ unless the acts of the latter sought to be enforced or enjoined are ministerial ' Union Bridge Company v. United States, 204 U. S. 364. Cf. injra, pp. 226, 227. * United States ex rel. Riverside Oil Company v. Hitchcock, 190 U. S. 316. C/. infra, p. 234. 'Bong V. Campbell Art Company, 214 U. S. 236 (1909). United States v. JuToy, 198 U. S. 253 (1905). * Wayman v. Southard, 10 Wheaton, i. '' Mississippi v. Johnson, 4 Wallace, 475 (1866). •Georgia v. Stanton, 6 Wallace, 50 (1867). No. 2] SEPARA TION OF PO WERS 22 1 in character.' By the better authority the rule as to the presi- dent is applied by the state courts to proceedings against the governor '^ ; though some state courts treat the governor as the federal courts treat the heads of departments,^ and extend to him immunity from direct interference only when his act is not ministerial. Where the rule of immunity prevails, it extends to boards of which the governor is a member.'^ The basis of the rule seems to be the impropriety of interference with the execu- tive by a coordinate authority. A federal court will issue an injunction against a state board although the governor is a member,^ or against the governor alone, where his duty is min- isterial and is not merely moral but legal.^ But all inferior officers may be brought to the bar of the ordinary judicial tribunals to answer to the plaints of individuals, though such process directly interfere with contemplated official action. That no official is above the law is the proudly asserted // maxim of our system of constitutional government. ^ And for this reason it is urged by many scholars that in our system of law there is no place for what is called " administrative law." The term as borrowed from the French droit administratif is . deemed to imply official immunity from the process of the ordinary civil tribunals. It will be clear, however, from the discussion to follow, that in numerous classes of cases the courts grant to officials an immunity from judicial examination of the correctness of their decisions which is withheld from private 'Kendall v. United States ex rel. Stokes, 12 Peters, 524 (1838). But such ex- traordinary remedies may not be issued against officers of the United States by lower federal courts, outside the District of Columbia, Mclntire v. Wood, 7 Cranch, 504 (1813), nor by state courts, McClung v. Silliman, 6 Wheaton, 598 (1821). 'State V. Stone, 120 Mo. 428 (1894). * State V. Governor, 5 Ohio St. 528 (1856). ♦Dennett, Petitioner, 32 Me. 508(1851). People v. Morton, 156 N. Y. 136 (1898). 'Pennoyerz/. McConnaughy, 140 U. S. I (1891). •Kentucky v. Dennison, 24 Howard, 66 (i860), setnble. ''Though the government may not be sued, save by its own consent, suits against its officers will lie, not only for damages, but for the recovery of property, even where they disclaim all personal interest and insist they are holding it solely as agents of the government. United States v. Lee, 106 U. S. 196 (1882). 222 POLITICAL SCIENCE QUARTERLY [Vol. XXVII individuals. No private individual is the ultimate authorit>^ to decide questions of fact on which depends the legality of his interference with the rights of others. This position is ac- corded in many instances to the executive and administrative agents of the government. In so far as this is true, it may be contended with good reason that there is a realm of law in which the decisions are based upon the public character of one of the parties involved, and in which the rules applied differ sufificiently from those which obtain where no official action is in issue to justify us in describing this portion of the law as ad- ministrative, in contradistinction to the private law. The basis of this distinction is not immunity from judicial process, but immunity from judicial interference with respect to the official action taken or contemplated. 2. Power to determine conditions under which a statute is to be operative No statute, save one designed to operate only on some imme- diate and specified subject matter, can be drafted with full fore- sight of the instances in which its provisions will be applicable and of the possible circumstances which may render its require- ments inadvisable. It is therefore often highly expedient to vest in some administrative authority a discretion as to its en- forcement. As a matter of political fact, where no individual may claim such enforcement as a private right, such discretion usually exists, for the executive may fail to enforce the law, however mandatory its requirements.' But it often happens that the legislature vests this discretion expressly, at the same time setting forth the conditions by which its exercise shall be governed. This result is attained by the declaration that the application of the statute or of one of its alternative provisions shall be con- ditioned upon the existence of certain facts, to be ascertained by those to whom its enforcement is entrusted. The propriety of such delegation was established in 1S13, when the court sus- ' (/. the order i>f the sccrelary of thi- treasury pcrniitting free entry of imports shipped to regions suffering from fire or earth(|uake. N(rui ]\»i- Times, October 13, 1910. No. 2] SEPARA TION OF PO WERS 223 tained the power vested in the president to ascertain certain facts, upon whose existence, as announced by his proclamation, would depend the revival of the Non-Intercourse Act.' There was no discussion of the point, the opinion stating simply : " We see no sufficient reason why the legislature should not ex- ercise its discretion in reviving the act of March ist, 1809, either expressly or conditionally, as their judgment should direct." The question was, however, subjected to thorough analysis in a decision ^ which sustained the power vested in the presi- dent to suspend the provisions of the tariff act relating to the to the free introduction of certain articles, for " such time as he shall deem just," when he shall be " satisfied" that foreign governments impose on those articles duties which, in view of their free introduction into the United States, " he shall deem to be reciprocally unequal and unreasonable." The opinion refers to the many statutes since the Brig Aurora decision which vest in the president a large discretion in matters arising out of the execution of statutes relating to trade and commerce, and declares that this practical construction of the Constitution, as given by so many acts of Congress, should not be overruled, unless upon a conviction that such legislation is clearly incom- patible with the law of the land. The court concedes that the principle that Congress cannot delegate legislative power to the president is " universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution," but asserts that the statute in question does not " in any real sense" invest the president with the power of leg- islation. He is said to have no discretion in the premises " except in respect to the duration of the suspension," and this limited discretion is to be exercised merely to enforce the policy established by Congress. As the suspension was absolutely required when the President ascer- tained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legis- ^The Aurora v. United States, 7 Cranch, 382. 2 Field V. Clark, 134 U. S. 649 (1891). 224 POLITICAL SCIENCE QUARTERLY [Vol. XXVII lative power was exercized when Congress declared that the suspension should take effect upon a named contingency. What the president was required to do was simply in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect. That the matter may be clearer, the opinion quotes from several decisions of state tribunals : The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercized under and in pursuance of the law. . . . The legislature cannot delegate its power to make a law ; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. It may thus be taken as established that, whatever the nature of the powers which may or may not be exercised by the executive, it may be vested with wide powers of discretion in determining when any given provision of a statute is to be operative. In practical effect this differs little from the power to decide for a certain period what the law shall be. This power of ascertaining a fact on which is to depend the operation or suspension of a general rule for all future cases within its scope is one which could not be exercized satisfactorily , by the judiciary. Unless therefore the legislature were permitted \. to delegate this function to the executive, it would be practically impossible to have a law adaptable to such constantly changing circumstances as the commercial policies of foreign nations. For the legislature, even if always in session, could not be ex- pected, vyith due regard to its other duties, to alter the law from day to day under the possible necessity of passing special enact- ments as to imports from each of the many exporting countries of the world. And since the purpose of the general policy is not retaliation but the securing of favorable consideration from other commercial nations, the executive is the only department No. 2] SEPARA TION OF PO WERS 22 5 adapted to the employment of the power for purposes of negotiation. This method of legislation has been suggested for the pur- pose of securing reciprocal action by different commonwealths in social legislation, the commonwealth first passing any statute providing therein that it shall be operative only upon the pass- ing of similar legislation by other commonwealths, as ascer- tained and proclaimed by the governor.' 3. Power to tnake regulations Not only the power of ascertaining facts on which depends the operation, suspension or revival of a statute, but also power to make regulations, containing detailed provisions supplement- ary to an existing law, may be vested in an administrative authority. And by reasoning analogous to that already con- sidered, this is shown not to be an exercise of legislative power. So completely is the power recognized that in Boske v. Comingore ^ a regulation was sustained with no discussion either by counsel or by the court as to whether it was a delegation of legislative power. A regulation, declared Mr. Justice Harlan, " should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law." In a subsequent case a statute which expressed the purpose of excluding from the country the lowest grades of tea, and dele- gated to the secretary of the treasury the power to establish a uniform standard, was held merely to devolve on hirp the duty of effectuating the legislative policy declared in the statute,3 Congress was said to have legislated on the subject as far as was reasonably practicable, leaving to executive officials from the necessities of the case the duty of bringing about the result pointed out by the statute. Perhaps the boldest and at the same time the most incon- sistent language of any court on this topic appears in Blue v. 'S. McC. Lindsay, "Reciprocal Legislation," Political Science Quarterly, vol. XXV, pp. 435-457- «i77U. S. 459 (1900). ' Buttfield V. Stranahan, 192 U. S. 470 (1904). 226 POLITICAL SCIENCE QUARTERLY [Vol. XXVII Beach,' which sustained a regulation of the board of health ex- cluding unvaccinated pupils from the public schools, under legislative authority to take action to prevent the spread of con- tagious diseases. The court declared that the legislature could not confer on any body or person the power to determine what the law should be, but added : This constitutional inhibition cannot properly be extended to prevent the grant of legislative authority, to some administrative board or other tribunal, to adopt rules, by-laws, or ordinances for the government of or to carry out a particular purpose. It cannot be said that every grant of power to executive or administrative boards or officials involv- ing the exercise of discretion and judgment must be considered a dele- gation of legislative authority. While it is necessary that a law, when it comes from the law-making power, should be complete, still there are many matters relating to methods and details which may be by the legislature referred to some designated ministerial officer or body. Thus in the same breath the court declares that a law must be complete when it comes from the legislature, and that it may be left to an administrative body to complete it ; that there may be a grant of legislative authority to an administrative body, and that no delegation of legislative power is proper. Administrative action to effectuate the general purpose declared by statute is sometimes authorized by granting power, not to ascertain facts on which depend the general operation or suspension of some provision, or to frame regulations of general application, but to issue orders requiring specific action in individual cases ; and statutes granting such powers have been sustained. Thus the New York Court of Appeals upheld a statute requiring all houses of a certain description " upon di- rection of the board of health " to be supplied with water " in sufficient quantity"''; and the Supreme Court upheld an act of Congress empowering the secretary of war, when satisfied after a hearing that a bridge over a navigable waterway is an unrea- sonable obstruction to commerce, " to require such changes or alterations as will render navigation reasonably safe, easy and un- ' 155 Iiul. 121 ( 1900). ' Health Ueparlmcnl v. Rector of Trinity Church, 145 N. V. 32 ( 1895). No. 2] SEPARATION OF POWERS 227 obstructed." ' Congress might clearly itself have established 1 general requirements for all bridges, leaving to the judiciary the task of ascertaining whether any specific structure violated the statute; or it could have legislated in detail as to any particular bridge after a report by the secretary of war. In effect, its action ' is an adoption in advance of recommendations which might have been made in such a report. The secretary in performing this duty, said the court, will only execute the " clearly ex- pressed will of Congress," and will not " in any true sense " exercize legislative or judicial power. If the principle for which the defendant contends received our ap- proval, the conclusion could not be avoided that executive officers in all the departments, in carrying out the will of Congress as expressed in statutes enacted by it, have from the foundation of the national government exercized, and are now exercizing, powers as to mere de- tails that are strictly legislative or judicial in character. . . . Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends, would be "to stop the wheels of government," and bring about confusion, if not paralysis, in the conduct of the public business. Three years later the court reaffirmed the doctrine in even stronger terms, denying the right of judicial reversal of the ad- ministrative determination. It is apparent from these citations that the distinction between powers strictly legislative and those which may lawfully be del- egated to executive authorities is somewhat tenuous. The rights of individuals may be controlled by the judgment and discre- tion of the executive quite as much as by the discretion of the legislature. The practical necessities of government have com- pelled the courts to overcome the difficulties raised by the doc-\\ ^Union Bridge Company v. United States, 204 U. S. 364 (1907). ^ Monongahela Bridge Company v. United States, 216 U. S. 177 (1910). In Com- monwealth V. Sisson, 189 Mass. 247 (1905), the court sustained an order of the fish and game commissioners directing a mill-owner to alter the construction of his mill and to cease to accumulate sawdust on the bank of a stream, although the action of the commissioners under the statute was termed " unquestionably legislative in char- acter." 228 POLITICAL SCIENCE QUARTERLY [Vol. XXVII I trine of the separation of powers. They have done their best. ' The line to be drawn, declared Chief Justice Marshall,' is be- tween those important subjects, which must be entirely regulated by the legislature itself, and those of less interest, in which general provisions may be made and power given to those who are to act under such general provisions to fill up the details. And Mr. Justice Harlan observed^ that this power, which he declared to be based upon governmental necessity, is limited to the determination of matters which in the opinion of the court are " details." Any apparent conflict in the decisions upon the topic will be due to disagreement whether any given matter left to administrative decision is a mere detail or pertains to the substance of the policy of the statute. Among the attempted delegations which have been held improper are power given to party committees to decide whether nominations shall be made by a primary or by a convention of delegates chosen at a pri- mary,3 and whether nomination shall be by a majority or plu- rality vote,3 and power to fix the boundaries of election districts.'* But as to these cases it may be said that the matters are such as admit easily of a uniform rule declared by the legislature. In so far as the delegation of legislative power is concerned, the doctrine of the separation of powers does not apply to the government of municipalities ^ or of the territories. In dealing ^ with such recently-acquired territory as the Philippine Islands and Porto Rico, Congress may delegate legislative authority to such agencies as it sees fit,^ and it may ratify regulations made by the military authorities ^ which the court had previously held not to be warranted merely by the fact of military occupation after cession.^ The broad doctrine seems to be declared that Congress may ratify any regulation which it could previously 'The Brig Aurora, 7 Cranch, 382 (181 3). * Union Bridge Company v. United States, 204 U. S. 364. Cf. supra, pp. 226, 227. 'People V. Election Commissioners, 221 111. 9 (1906). * Rouse V. Thompson, 228 111. 522 (1907). *Cooley, Constitutional Limitations (7th ed.), p. 265, note i. "Dorr V. United States, 195 U. S. 138 (1904). 'United States v. Ileinszen, 206 U. S. 370 (1907). *Dooley v. United Slates, 182 U. S. 222 (1901). No. 2] SEPARATION OF POWERS 229 have delegated power to issue, and that after ratification the regulation is valid from the time of its original promulgation.' For the most part the exercise of this power to make regu- lations is conditioned on express delegation by the legislature. But it has been held that the president, by virtue of his con- stitutional power as commander-in-chief of the army and navy, has the power to establish provisional courts for the hearing and determination of all causes arising under the laws of the state or of the United States in insurgent territory under the control of the United States military forces ^ and power to institute regulations providing for the establishment of courts martial.3 The qualification " in the absence of legislation specially prohibitive," added in the latter opinion, make us doubtful, however, of the true source of the power. But this same power was recognized also in Dooley v. United States/ where the regulations of the commander of the army in Porto Rico and subsequent regulations by the president, establishing a system of tariff duties, were held to be proper exercises of the war power. But this power was said to become limited by the subsequent cession of the island by treaty, although it still remained under military control. The position of the court is somewhat vague. It is declared that, from the necessities of the case, the right to administer the government continued after the ratification of the treaty and until further action by Con- gress. This power to " administer " was said to be " absolute and despotic," but the power to exercize " legislative " functions " not without certain restrictions — in other words they would not extend beyond the necessities of the case." And it was held, therefore, that since the spirit as well as the letter of the tariff laws of Congress admitted of duties being levied only upon importations from foreign countries, the regulations of the commander could be made to apply only to goods from a foreign country, which the United States ceased to be by the ' United States v. Heinszen, 206 U. S. 370 (1907). 'The Grapeshot, 9 Wallace, 129 (1869). ^Swaim v. United States, 165 U. S. 553 (1897). M82U. S. 222 (1901). 230 POLITICAL SCIENCE QUARTERLY [Vol. XXVII cession. But it had been held previously that the authority of the military commander to exact duties continued after the ratification of the treaty of cession until notification thereof reached him." Outside of the authority inherent in the commander-in-chief of the army and navy, the power to issue regulations is condi- tioned on legislative delegation. But it is held that a head of a department may have the power by implication from other powers granted. The authority of the secretary of the treasury to require an oath to be taken, in certain proceedings before the department, was held to follow •' by implication " from his power " to adjust and settle claims." ^ The court laid down as a general principle, " in the construction of powers of this sort, that where the end is required, the appropriate means are given." The fact that the Treasury Department had for a long period required such oaths to secure the government against frauds, without objection by Congress, was held to show de- cisively that its action was not to be deemed a usurpation of authority. In St. Louis etc. Railroad Company v. Taylor,^ the regula- tions sustained were framed by a body of experts having no offi- cial connection with the government. The case gave damages for personal injury where the basis of liability was the failure of the defendant to comply with requirements as to equipment fixed by the American Railway Association. The decision is not an express authority on the point of delegation to an unof- ficial body, because the regulations of the association were to be certified to the Interstate Commerce Commission and to be promulgated by them. But no provision appears giving the commission authority to revise the regulations certified by the association, although the commission was vested with power to make its own regulations in case the association failed to act. There are, however, instances of the delegation of the taxing power to private corporations,"* and of the delegation of power ' Cross 7^. Harrison, 16 Howard, 164 (1853). 'United States v. Bailey, 9 Peters, 238 (1835). ' 210 U. S. 281 { 190S). * Anderson v. Draining Company, 14 Ind. 199 (i860). New Orleans Draining Company, Praying for the Confirmation of a Tableau, 11 La. Ann. 338 (1856). No. 2] SEPARA TION OF PO WERS 231 to appoint public officials to a private corporation,' or even to unincorporated associations.^ Such then are some of the powers which may be exercized by executive and administrative authorities, be they legislative in their nature or not. They establish a rule for future cases. They constitute an integral part of the " expression of the will of the state." 3 And the administration, in performing its function in this expression of will, is no mere automaton ma- nipulated by the legislature. Departmental regulations made by virtue of the delegated ordinance power become so thoroughly a part of the statute that they are binding upon the department itself as well as upon the individuals with whom it deals. Thus where an importer was found by the court to have complied with regulations estab- lished by the secretary of the treasury, under which he was to be entitled to a rebate on the duty levied on imported raw materials when those materials became part of manufactured goods subsequently exported, it was held that this right could not be defeated by an order of the secretary forbidding the collector to proceed in accordance with the regulations estab- lished.4 The importer was said to obtain his right from the law, of which the regulations when incorporated were a part, and it was held that the secretary could not by a subsequent order do what he could not do by regulations — repeal or annul the law. The function of the administration is thus seen to be sub- stantially similar to that which might have been exercized by an expert drafting commission before the law was finally passed. The legislation when complete is a mosaic : the design and gen- eral plan are the work of the legislature ; to the administration lOvershiner v. The State, 156 Ind. 187 (1901). 2 In re Bulger, 45 Cal, 553 (1873) • ' Cf. Goodnow, Politics and Administration, chapters i and \\, passim. ^Campbell z/. United States, 107 U. S. 407 (1882). But cf. Dunlap z/. United States, 173 U. S. 65 (1899). It seems that regulations relating merely to the orderly transaction of the departmental business may be disregarded by the department, when the effect of such disregard is to favor rather than to defeat an individual right. Indian Regulations, 3 Comp. Dec. 218 (1896), cited in Wyman, Administrative Law, sec. 4. 232 POLITICAL SCIENCE QUARTERLY [Vol. XXVII is left only the function of inserting some of the minor pieces into the places designated. When this is done, the work of the administration is completed, its discretion exhausted ; and the mosaic is then the handiwork of the legislature beyond the power of the department to remove directly or indirectly any of the portions it had been their function to inlay. But although the department is bound to follow its own regu- lations when made, it may be vested with power to annul or to amend them ; or the rights of individuals may be conditioned, not on compliance with the regulations, but on the certificate of the department that such compliance has taken place, mak- ing the department the final arbiter of the right.' 4. Power to ascertain facts and apply rules of law in controversies The adjudication of disputed questions of fact and law in controversies between private individuals or between indi- viduals and public officials is a function commonly committed to the judiciary ; and the doctrine of the separation of powers is supposed to inhibit the exercise of what is regarded as judicial power by any other department of government than the judiciary, unless power of such nature is expressly vested in non-judicial bodies by the constitution. "" There are many in- stances where powers delegated to administrative bodies by statute have been held invalid because deemed judicial in nature. In People v. Chase, ^ it was held that the power sought to be entrusted to an administrative officer to issue certificates of title, which with certain exceptions should be conclusive against the world as to the ownership of the land in question, was void as a delegation of judicial power. Since the statute contemplated that the recorder should consider and apply the law to facts presented, the court declared that " it would be difficult to more clearly and positively confer judicial powers upon a person unqualified, under the constitution, to exercize those powers, than is done by this law." Other Illinois cases have held it improper to vest in " three disinterested men " ' United Stales ex rel. Riverside Oil Company v. Hitchcock, 190 U. S. 316 (1903). 'Kilhourne v. Thompson, 13 Otto, 168 (1880). * 165 111. 527 (1897). No. 2] SEPARATION OF POWERS 233 power to assess damages for injuries caused by cattle running at large/ or to empower a poundkeeper to sell horses im- pounded for penalties accrued without a judicial determination of the fact that the penalties are due.^ But the courts of the same jurisdiction recognize that minis- terial officers may be vested with the power to exercize what they term "quasi-judicial powers or discretions"; for example, in assessing damages and benefits for special assessments, in assess- ment of damages under an " Occupying Claimants Law," 3 in trial of rights of property before a sTferiff ■* and in vai«ation of property for taxes.- This doctrine of the administrative exer- cise of " quasi-judicial " powers obtains in all jurisdictions. An examination of the cases will disclose that these differ from what are regarded as judicial functions proper, not in the nature of the power exercized, but in the nature of the rights which the exercise of the power affects. In fact it is repeatedly declared that administrative officers may in certain instances exercize judicial functions. On this point the courts have been more frank than with respect to the delegation of legislative powers. In referring to powers held to be lawfully vested in the commissioner of patents, the Su- preme Court asserted that, although he is, generally speaking, an executive officer, in deciding whether a patent shall issue or not he acts on evidence, finds the facts and applies the law, and that " in all these he exercizes judicial functions." ^ The opinion quotes further from Butterworth z/. Hoe ^ : "The investigation of every claim presented involves the adjudication of disputed questions of fact, upon scientific or legal principles, and is, therefore, essentially judicial in its character." These de- cisions, it is true, involved the question whether a statute giving 1 Bullock V. Geomble, 45 111. 218 (1867). 'Peppen v. Holmes, 44 111. 360(1867). Cf. Portland v. Bangor, 65 Me. 120 (1876), which declared invalid a delegation to overseers of power to commit to a workhouse persons declared by them to be vagrants. ^ Ross V. Irving, 14 111. 171 (1852). *Rowe V. Bowen, 28 111. 116 (1862). ^Bureau County v. Chicago etc. Railroad Company, 44 111. 229 (1867), ^United States v. Duell, 172 U. S. 576 (1899). ^ 112 U. S. 50 (1884). 2 34 POLITICAL SCIENCE QUARTERLY [Vol. XXVII to the courts an appeal from the decision of the commissioner was void as an attempt to thrust non-judicial functions on the judiciary; but similar language occurs in a decision which holds that the finding of the secretary of the interior is final, and its correctness not a matter for the courts.' Mr. Justice Peckham declares that Congress has constituted the Land Department, under the supervision and control of the secretary of the in- terior, a special tribunal " with judicial functions," to which is confided the execution of the laws which regulate the purchase, selling, care and disposition of the public lands. Some courts, however, are unwilling to put the matter so frankly and prefer to play the familiar game of juristic logo- machy. In holding that the power vested in a board of medical examiners to license physicians was not a power appropriately belonging to the judicial department, the court observed : Many executive officers, even those who are spoken of as purely minis- terial officers, act judicially in the determination of facts in the per- formance of their official duties ; and in so doing they do not exercize judicial power , as that phrase is commonly used, and as it is used in the Organic Act in conferring the judicial power upon specified courts.* In another opinion a " judicial duty within the meaning of the constitution " was said to be " such a duty as legitimately per- tains to an officer in the department designated by the consti- tution as judicial." 3 Thus, in spite of repeated judicial assertions that executive and administrative authorities can not exercize judicial power, it is manifest that many of the functions they are permitted to perform are similar in nature to the functions exercized by the judiciary and long recognized as belonging peculiarly to that department of government. In disputes between individuals, bodies other than judicial determine controverted questions of fact and apply rules of law to facts found ; and in subsequent judicial proceedings the courts often decline to reexamine the 'United States ^Jr r. Farmers Loan and Trust Company, 154 U. S. 362 (1X94). 'Taxation: Hilton v. Merrilt, no U. S. 97 (1S84). Exclusion of aliens: United Slates V. Ju Toy, 198 U. S. 253 (1905). Troteclion of pulilic health: Valentine v. Enjjlewood, 76 N. J. Law, 509 (190S). SEPARATION OF POWERS ADMINISTRATIVE EXERCISE OF LEGISLATIVE AND JUDICIAL POWER II PRINCIPLES OF JUDICIAL REVIEW BY THOMAS REED POWELL REPRINTED FROM POLITICAL SCIENCE QUARTERLY Vol. XXVIII, No. i NEW YORK PUBLISHED BY GINN & COMPANY 1913 SEPARATION OF POWERS : ADMINISTRATIVE EXER- CISE OF LEGISLATIVE AND JUDICIAL POWER' II. PRINCIPLES OF JUDICIAL REVIEW /. Introduction I"' ALTHOUGH in many instances administrative authorities may perform functions which cannot be differentiated from those commonly exercised by the legislature or by the judiciary, it is not to be inferred that the attempt to trans- mute the theory of the separation of powers into a rule of law has been wholly ineffective. Inroads upon the theory have been permitted only where the courts find some over-ruling govern- mental necessity or where the interest subjected to administrative interference is not within the fold of constitutional protection. It is true that in most of the instances where the doctrine has been invoked in judicial proceedings to resist the action of ad- ministrative authorities, the contention has not been sustained. But this is due to the fact that the legislatures have been cau- tious in not extending the power of the administration beyond the boundaries which the courts have described. The subject matters which continue to be dealt with by courts and legisla- tures far exceed both in number and importance those committed to the care of administrative authorities. With the increasing complexity of social and economic conditions and the conse- quent widening of the field of governmental activity, the scope of administrative power is being constantly enlarged. But the hand of the court is always at the throttle to stay any advance which in its opinion is an unwarranted invasion of private right. Where for any reason the power vested by statute in an administrative body is deemed to exceed that permitted by the Constitution, the courts will treat any action taken under the delegation as entirely invalid." ' The first pari of this study was printed in the Political Scikncb Quarterly, vol. xxvii, pp. 215-238. 'Portland v. Banpor, 65 Me. 120(1876); cf. part i, of this study, loc ci/., p. 34 SEPARA TION OF PO WERS 3 5 Even where the courts concede that the administration has power to act, the specific action taken remains subject to judicial supervision. A distinction is to be noted, however, between the relief which may be granted in reviewing an administrative regulation, which promulgates a general rule to govern all future instances that may arise within the scope of its pro- visions, and the relief available when the court is considering an administrative finding of fact or application of law to facts found. Where the administrative action is in the nature of an adjudication, the court may reexamine the evidence and deter- mine the fact for itself ' or apply some other rule of law than that adopted by the administration.^ It may itself do the very work entrusted to the administration, if in its opinion this work was improperly performed. But if for any reason the court disapprove of an administrative regulation, judicial relief must be confined to nullifying the administrative action and treating the matter in litigation as though no provisions beyond those contained in the statute had been promulgated or authorized. The court cannot put forth a new regulation, although its opinion may indicate what new regulation would be sustained. If the provisions of the regulation are separable, the regulation may of course be declared invalid in part only. In so far as prosecutions for violation are concerned, special orders of indi- vidual application are controlled by the same considerations which apply to general regulations. The court can merely declare the order void or valid. If, however, the administration is seeking judicial enforcement of some order directing specific remedial action, the court is not confined to the two alternatives of granting the decree prayed for or of denying all relief. Such part of the order as the court deems excessive may be regarded as separable. The court may, in practical effect, 233, n. 2. Wong Wing v. United States, 163 U. S. 228 (1896); cf. part i, loc eit.^ p. 235, n. 3. 1 State ex rel. McCleary v. Adcock, 206 Mo. 550 (1907). Miller v. Horton, 152 Mass. 540 (1891). ^Johnson v. Towsley, 13 Wallace, 72 (1871). Turner v. Williams, 194 U. S. 279 (1904). 26 POLITICAL SCIENCE QUARTERLY [Vol. XXVIII modify rather than annul the administrative order/ which amounts to much the same thing as annulling it and issuing a new order in its place. The reason underlying this distinction must be as follows. The promulgation of regulations partakes of the nature of action commonly exercised by legislative bodies. Power to take such action may, from the point of view of actual practice though not in judfcial theory, be delegated to administrative bodies, but it may not be exercised by the courts, save in cer- tain matters relating to judicial procedure. On the other hand, the function of reaching conclusions of fact from evidence submitted and that of applying rules of law partake of the nature of action regularly exercised by judicial authorities. Though an order directing specific remedial action in respect to a designated concrete thing may be issued by a legislature, such orders are also issued by the courts where the general requirements of a statute have been violated. In. these realms, therefore, the courts may substitute their own judicial action for what they regard as the improper action of a judicial nature taken by the administration. 2. Judicial control over administrative regulations An ordinance or regulation will of course always be held invalid for any reason that would nullify the same provisions in a statute. In Illinois Central Railroad Company v. Mc- Kcndrec^* a quarantine regulation of the secretary of agri- culture was held invalid because sufficiently broad to apply to commerce wholly within a state. Regulations made in the exercise of the police power are regarded with the same critical eye cast upon statutes. In State v. Speyer,^ the regulation of a state board of health prohibiting any pig-pen within one hundred feet of an inhabited dwelling was held void, on the ground that it reached beyond the scope of necessary protection and prevention into the domain of restraint of lawful business and use of property. ' Ilcallh Department v. Dassori, 81 N. Y. Stale Reporter (47 N. V. .Supp.), 641 (1897). Health Department v. Rector of Trinity Church, 145 N. V. 32(1895), sembU. » 203 U. S. 514 { 1906). » 67 Vt. 502 (1895). No. I] SEPARATION OF POWERS 2 7 In fact, these regulations of administrative bodies are ac- corded even less judicial respect than that given to a statute. In Potts V. Breen ' it was held that, in the absence of express authority from the legislature, a certain rule of the state board of health was invalid because unreasonable. The courts exer- cise the same supervision over the regulations of such state boards as over municipal ordinances. The power to declare these void, when in the opinion of the court they are unreason- able, has long been exercised. It is often justified, however, on the ground that the legislature cannot be presumed to have delegated authority to do a thing unreasonable, the court seem- ing to assume that the judicial estimate of unreasonableness was the test in the subconsciousness of the legislature. Since the regulations of the administration are to supplement the provisions of some statute and the power to make them rests upon legislative grant, it is clear that the exercise of the power must not transcend the authority delegated. In Little v. Barreme,'' a naval officer who had seized a. vessel on its voyage from a French port, under a regulation of the secretary of the navy ordering seizure of vessels sailing to or from a French port, was held not protected from civil liability for his act, when the statute by virtue of which the secretary issued his orders authorized the president to instruct commanders to seize vessels only when these were going to a French port.3 So also where the statute made provision for the free introduction of animals imported for breeding purposes, " upon proof thereof satisfac- tory to the secretary of the treasury and under such regulations as he may prescribe," the court held invalid a provision in the regulations that the collector must be satisfied that the animals are of superior stock,-* as an attempt to incorporate a limitation into the statute where it clearly intended to include animals of all classes. The regulation was in effect an amendment of a revenue law, which could be made only by Congress. Regulations may not impair rights which flow from the 1167111.67(1897). ^2 Cranch 170 (1804). ^ Cf. Hendricks v. Gonzales, 67 Fed. 351 (1895). * Morrill v. Jones, 106 U. S. 466 (1882). 38 POLITICAL SCIENCE QUARTERLY [Vol. XXVIII Statute by imposing requirements inconsistent with its provi- sions. It has been held that the department cannot, upon discovering that the color test prescribed by statute for deter- mining the standard of sugar is fallacious, remedy the defect by substituting a chemical test ; for Congress alone has au- thority to levy duties.' And where a statute required oath as to contemplated alienation upon making entry for public land and failed to require such oath at the time of securing patent, though prescribing oath on other matters, it was held to be manifest from this omission that the motives of the applicant, though material on making entry, were not significant at the time of receiving patent; and the requirement of such oath at the later time was held void because it defeated the right given by the statute to make contract for alienation in the interim.' Compliance with regulations less stringent than the require- ments of the statute will not excuse an individual as against the government from full compliance with the law. In an action against the collector, under a statute permitting suit if protest be filed within ten days from the time of the liquidation of the duties, it was material when such liquidation took place. The protest complied with the regulations of the secretary of the treasury, which regarded such liquidation as not complete in the case of goods in bond until their final withdrawal. The court held that this was erroneous, and that the importer who had complied with the regulations had not complied with the law.3 A curious modification of the doctrine that regulations incon- sistent with the delegation are void is suggested in a dictum in La Bourgogne,'' where the statute under consideration authorized the board of supervising inspectors to make regulations as to the equipment of vessels with life-boats, rafts etc., and provided ' Merritt v. Welsh, 104 U. S. 694 (1881). 'Williamson v. United .States, 207 U. .S. 425 (1908). For examples of rulings by the law advisers of various executive departments as to regulations and usages in con- flict with statutory provisions, (f. Wyman, Administrative Law, chapter \\\y passim. ' Merritt v. Cameron, 137 U. .S. 542 (1890). * 210 U. S. 95 (1908). .Mso sub notn. Deslions v. La Compagnie (.ientiralc Traus- atlantique. No. I] SEPARATION 01 POWERS ^O that such regulations, when approved by the secretary of the treasury, should have the force of law. Failure to comply with the law subjected the company to a penalty and also deprived it of the right to certain limitations on its liability for dam- ages in case of accident. In the case at bar, the company had complied with the regulations, but it was contended that the regulations were inconsistent with the statute and that the company had therefore not complied with the law. The court was of opinion that the regulations were not inconsistent with the statute, but observed : Even, however, if it were otherwise, as compliance on the part of the petitioner with the regulations adopted by the board was compelled by law, it cannot be that upon it was cast the duty of disobeying the regulation at its peril, thus, on the one hand, subjecting it in case of non-compliance to the infliction of penalties, and, on the other hand, if it fully complied with the regulations, imposing a liability upon the assumed theory that there had been a violation of law. It would thus appear that third parties cannot take advantage of inconsistency between the statute and the regulations when they have been complied with by those whose conduct they are to govern, although the latter may allege such inconsistency as an excuse for non-compliance, or after compliance may find it a bar to the acquisition of rights claimed from the government under the statute. If, however, the government may enforce a penalty for violation of the law after there has been compliance with the regulations, it may through its own officers contrive for the individual the same unpleasant dilemma from which the court desired to spare him in La Bourgogne.' When the regulation is, in effect, merely the interpretation of the statute, the court will determine for itself whether the inter- pretation is correct.^ In United States v. Symonds,^ where the ^ Cf. infra, p. 44. ''■ Though the courts often declare that great respect is due to the interpretation of the administration, and sometimes even that, when long continued, it "must be re- garded as absolutely conclusive " — United States v. Hill, 120 U. S. 169 {1887) — the actual results of the decisions justify the assertion that this is merely a presumption, which serves as a convenient crutch to aid the courts when they desire to sustain the 40 POLITICAL SCIENCE QUARTERLY [Vol. XXVIII Statute provided that no service should be regarded as sea ser- vice unless performed at sea under the orders of the depart- ment, the regulations of the department declared service on practice vessels in harbors and inlets to be shore service. The court holds that such service was in fact performed at sea, within the meaning of the statute, and that the regulations of the department could not convert it into shore service. The authority of the secretary to issue orders, regulations and instruc- tions, with the approval of the president, in reference to matters con- nected with the naval establishment, is subject to the condition neces- sarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the navy. He may, with the approval of the president, establish regulations in execution of, or supplementary to, but not in conflict with, the statutes defining his power or conferring rights upon others.' Finally, the regulations must relate to matters which the court regards as " mere details." As to what is a mere detail and what relates to the substance of the result sought by the legislation, the courts are more critical in criminal prosecutions than in civil controversies. It would seem that some regulations are considered sufficiently valid to support acts done under them, and therefore, in a sense, " have the force of law " and are " prescribed by law," and yet are not regulations " pre- scribed by law " when it is sought to base upon them a contention of the administration, but which is never permitted to fetter them when in- clined towards an opposite conclusion. In Houghton v. Payne, 194 U. S. 88 ( 1904), the court sustained the ruling of the postmaster-general classifying publications in the Riverside Literature Series as books, although for sixteen years his predecessors had classified them as periodicals and Congress, though often urged by the department to amend the statute, had declined to do so. " We regard publications of the River- side Literature Series as too clearly within the denomination of books to justify us in approving a classification of them as periodicals, notwithstanding the length of time such classification obtained. ... It is well settled that it is only when the language of the statute is ambiguous and susceptible of two reasonable interpretations that weight is given to the doctrine of contemiioraneous construction. Contemporaneous construction is a rule of interpretation, but it is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the dei>artmenl, however long continued by successive othcers, must yield to the positive language of the statute." > I20U. .S. 46 (1887). No. I] SEPARATION OF POWERS 4 1 criminal prosecution under a statute providing penalties for " failure to do the things required by law." ' In the case cited, a wholesaler in oleomargarine was indicted for failure to keep such books as were prescribed by the regulations. The statute required mamifactiirers to keep such books as the department might prescribe but made no such requirement as to wholesalers. The court seemed to regard the departmental regulations specifying the books to be kept by wholesalers as authorized by the general power to prescribe regulations, but held that the statute did not with sufficient distinctness make the failure so to do a criminal offence. In another case,^ however, where the statute required packages of oleomargarine to be marked and branded as the commissioner of internal revenue should prescribe, and provided a penalty for packing oleomargarine in any manner contrary to law, it was held that the criminal offence was " fully and completely defined by the statute," and that the designation by the commissioner of the particular marks and brands to be used was a " mere matter of detail." The distinction between this and the Eaton case was said to be that the requirements of the department there related to matters which were in no way referred to in the various sections of the statute prescribing the duties resting upon manufacturers or dealers in oleomargarine, while here the statute expressly required the acts to which the regulations referred. Two cases more difficult to distinguish have been decided in the lower federal courts. In the earlier of these cases ^ the statute authorized the secretary of war to make regulations to protect the navigation of rivers, and provided that violation of the regulations should constitute a misdemeanor. The secre- tary made a regulation as to the speed of vessels. The court held that the .secretary did not make any act punishable, but merely promulgated a rule — that it was the statute which made the act punishable. In a later case "* the statute authorized the I United States v. Eaton, 144 U. S. 677 (1892). « In re Kollock, 165 U. S. 526 (1897). 'United States v. Breen, 40 Fed. 402 (1889). * United States v. Matthews, 146 Fed. 306 (1906). .2 POLITICAL SCIENCE QUARTERLY [Vol. XXVIII secretary of the interior to make regulations as to the occu- pancy of certain public lands, the violation of which was to be punished as provided in another statute. The regulations forbade sheep-grazing without a permit. The court held that the grazing of stock had been prohibited by no congressional act, that the prohibition rested entirely on the regulation of the secretary and amounted to an unauthorized exercise of legis- lative power, since it was the secretary who had designated what should constitute the crime. It would seem that in the earlier case it might have been said as easily that excess of speed was prohibited by no statute, and that the secretary alone had designated what should constitute the crime. The decisions on this topic cannot be reconciled on any line of general principle. In the last analysis the distinctions are those of degree. A test which may prove helpful is to ask whether the requirements of the regulations should clearly have been anticipated from a reading of the statute. It is clear that the statute need not state in detail every circumstance or contingency under which an act prohibited by law shall consti- tute a criminal offence. Thus a defendant may be punished under a statute penalizing false swearing, where the oath in question was taken before a local land officer in a contest in respect to the validity of a homestead entry, as prescribed by departmental regulations, although such proceedings in a con- test as to homestead entries were not specifically authorized by any statute.' This was said to be, not a case where the defend- ant was punished for the violation of a departmental regulation, but merely an instance where the regulations^ provided the place, occasion and opportunity for the defendant to violate the statute against perjury. In another case - the defendant was punished for false swearing in an affidavit before a state magistrate, where such oath was prescribed by a departmental regulation issued under general authority to " adjust and settle claims," although no express authority was given by any fed- eral statute to any state magistrate to administer such an oath. '.Caha V. United States, 152 U. S. 211 (1894). 'United States v. Bailey, 9 Peters (U. S.) 238 (1835). No. I] SEPARATION OF POWERS ^2 and the court doubted whether a state magistrate could be com- pelled by any federal authority to administer an oath. 3 . Effect of the failure of the administration to take action Although in the Campbell case the Supreme Court declared that the administration may not, by disregard of its own regula- tions, withhold the action which follows by law from the com- pliance of an individual therewith,' it may defeat a right condi- tioned on compliance with regulations by its failure to make any regulations whatever. Thus, where a statute was construed as granting, not a right in prcesenti to all persons who might after its passage use alcohol in the arts, but a right conditioned on use in compliance with regulations to be prescribed, the court regarded the legislation as incomplete until regulations were made to fill in its details, in the absence of which the right of the manufacturer could not so vest as to create a cause of action by reason of the unregulated use.^ The comment on the Campbell case indicates that the decision there would not have been different had it involved the failure of the department to make regulations rather than its failure to comply with regula- tions made. For the court observed that in that case the right to the drawback depended on the statute and not on the secre- tary's regulations, which related merely to the ascertainment of the amount. Hence there the inaction of the secretary was immaterial, and the drawback must be paid whether ascertained under his regulations or not, where the amount could be proved to the satisfaction of the court as completely as if every reason- able regulation had been duly observed. The distinction between the statute in the two cases was said to be that one required that the thing itself should be done under official regulations ; the other, merely that the proof of the doing of the adf should be made in the manner prescribed. It must also be true that no one may be punished for the violation of regulations which have not been made. If authority 'Campbell v. United States, 107 U. S. 407 (1882); cf. part i of this study, loc. cit. p. 231. *Dunlap V. United States, 173 U. S. 65 (1899). \ 44 POLITICAL SCIENCE QUARTERLY [Vol. XXVIII be necessary to establish so self-evident a proposition, it may be inferred from United States v. Randall,' where failure to com- ply with the command of a statute, that masters of vessels arriving in port should repair at once to the office of the chief officer of the customs, was held excused by showing that such officer had no office artd thereby made performance impossible. It was declared in the opinion, however, that the mere failure of the officer to exact compliance with the statute would not excuse the failure of the master to comply therewith. Where such failure to exact compliance is partial only, as where regulations are promulgated that do not meet the full requirements of the statute, compliance with the regulations is not compliance with the statute for the purpose of acquiring any right.'' But it should not follow from this that a penalty could be imposed for non-compliance with the law, where there was full compliance with the regulations. This would in effect place on the individual the burden of himself contriving regula- tions which would meet the demands of the statute. In a suit for a penalty it should be held that he has the same right to assume the validity of the regulations which seems to be ac- corded when the question arises in a suit between individuals.' If the failure of an officer to require compliance with a statute cannot excuse complete non-compliance, it would follow that non-compliance with administrative regulations could not be excused by any waiver of their requirements on the part of a subordinate official. It might be argued that, if the officer who makes the regulation cannot himself disregard it to defeat the right of an individual,'* he cannot authorize the individual to disregard it and thereby escape from a duty or from the impo- sition of a penalty for its non-performance. Knowing his duty, he might be held to accept any favor at his peril. But where the regulations do not relate directly to the duties or the rights of individuals, but pertain merely to the orderly transaction of ' I Sprague, 546 (District Court of Massachusetts, 1853). ' Merritt 7). Cameron; cf. supra, p. 38. • La Bourgogne; cf. supra, pp. 38, 39. *Campl)ell v. United States, 107 U. S. 407 (1882); cf, part i, loc. cit. p. 231, and supra, p. 43. No. I ] SEPARA TION OF PO WERS 45 the business of the department, it seems that they may be waived by the authority of the one who promulgated them, either expressly or by the approval of a transaction which disregards them.' Where the right is conditioned, not on the making of a regu- lation or an administrative finding of compliance therewith, but on the ascertainment of some state of facts whose existence is named as a condition under which the statute is to become operative, the executive ascertainment is requisite to the creation of the right. This was held in Bong v. Campbell Art Com- pany,^ where the action of the president was held a condition precedent to the right of an alien to the benefits of a copyright act, whose provisions were to be applicable only to those aliens whose governments were declared by the proclamation of the president to have granted corresponding privileges to American citizens. From the doctrine of the courts with respect to judicial control over acts in their nature diplomatic or political,^ it clearly follows that such proclamation rests entirely within the discretion of the executive. But where the individual is aggrieved by the failure of the administration to adjudicate the facts relating to his particular case, he may, as in the Campbell case,"* establish his right before the court. Thus, where the secretary of the interior failed to ascertain what was swamp land and to furnish the state with notice, under a statute of Congress construed to confirm a present vested right in such lands, it was held that the land nevertheless belonged to the state when the facts existed under which it was to be entitled, and that if the secretary would not determine the facts they could be determined by the court.^ There are, however, numerous instances where the court construes the statute to mean that the determination or adjudi- ' Indian Regulations, 3 Comptroller's Decisions, 218 (1896). Cited in Wyman, Administrative Law, section 4. «2I4 U. S. 236 (1909). * Jones V. United States, 137 U. S. 202 (1890). Luther v. Borden, 7 Howard i (1848). *Cf. part i, loc. cit. p. 231, and supra, p. 43. 5 Railroad Company v. Smith, 9 Wallace, 95 ( 1869). ^5 POLITICAL SCIENCE QUARTERLY [Vol. XXVIII cation of the department is the exclusive method of establishing the individual right.' It was held in United States v. McLean "" that the right of a postmaster to an increase of salary was conditioned on a re-adjustment by the postmaster-general and that no suit could be maintained in the absence of such re-ad- justment. By a strictly logical inference it was decided in United States v. Verdier 3 that a postmaster must pay interest on a judgment against him in favor of the government, although at the time it was rendered the government was equitably his debtor, as became established by a subsequent re-adjustment of the postmaster-general. Interest on the amount found to be due him was not allowed to begin from the time of the trans- action on which it was based, because the debt was held to have come into existence at the time of the re-adjustment. But in the McLean case the court suggested that, while it could not perform executive acts or treat them as performed when they have been neglected, it might by niandanius compel the executive to do his duty. And where the duty to promul- gate regulations is absolute, their promulgation may be con- strained by mandamus, although the court could not dictate their provisions. Under some statutes, however, the adminis- tration seems to be treated as vested with discretion to decline to promulgate regulations when in its judgment it is inadvisable* 4. Finality of administrative orders and adjudications It is clear that the power of the administration to issue orders or regulations does not necessarily impl}' the validity of the action taken. When the validity of administrative action is ex- amined in the course of judicial proceedings, the question of the conclusiveness or finality of the action taken may perhaps be said to be before the courts, whether it be an administrative regulation or an administrative determination or adjudication that is under consideration, l^ut onl}' in the latter class of cases may the court itself perform the task entrusted to the ad- ministration by substituting an adjudication or determination of • Cf. iupra, pp. 43, 45. '5 Otto, 750 (1S77). * 164 U. S. 213 (1896). *■ Dunlap v. United States, 173 U. S. 6$, at p. 75. No. I] SEPARATION OF POWERS 47 its own for that of the administration. The use of the term "judicial review" is sometimes misleading. It seems to be loosely applied, not only to the inquiry whether power to act is lawfully vested or exercised, but also to the process of nullify- ing the administrative action or of substituting a judicial deter- mination in its stead. Judicial review of administrative action is always possible, if we mean that the courts may always inquire as to its validity. But the courts have themselves established the rule of law that in many instances, where power to act is lawfully vested, they will assume, without examination of the evidence, the correct- ness of the administrative determination. This doctrine obtains with respect to administrative ascertainment of facts in determi- nations relating to the assessment of property for taxation,' the admission of aliens'' or imports,^ reception or classification of mail matter 4 and disposition of the public lands.s And there is a growing tendency to hold officers not answerable in damages for what the court adjudges erroneous findings of facts in pro- ceedings for protecting the public health, which result in partial deprivation of liberty or property,^ or possibly, in total destruc- tion of property where the owner failed to take advantage of some opportunity to secure judicial review before the adminis- trative determination was finally executed. ^ These decisions are based primarily upon a recognition of the dictates of governmental necessity, but partially also upon a 1 Hilton V. Merritt, no U. S. 97 (1884). "^ United States v. Ju Toy, 198 U. S. 253 (1905). * Buttfield V. Stranahan, 192 U. S. 470 (1904), * Public Clearing House v. Coyne, 194 U. S. 497 (1904). Bates and Guild Company v. Payne, 194 U. S. 106 (1904). Here, in connection with the classi- fication of mail matter, it was said: " Where there is a mixed question of law and fact, and the court cannot so separate it as to show clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive." * Smelting Company v. Kemp, 104 U. S. 636 (1881). Cf. American Political Science Review, vol i, pp. 583-607. ® Beeks v. Dickinson County et al., 131 Iowa 244 (1906). Valentine i'. Engle- wood, 76 N. J. Law 509 (1908). ■"Van Wormer v. The Mayor, 15 Wendell (N. Y.), 262 (1836). Ra>Tnond v. Fish, 51 Conn. 80 (1883). Cf. Harvard Law Review, vol. 24, pp. 441-459. 48 POLITICAL SCIENCE QUARTERLY realization that when the courts reverse an administrative adjudication they assume a burden which the statute places on other shoulders. For if the adjudication of the administration is set aside, a new decision must be reached by the courts. In annulling a regulation, on the other hand, the task of the court is completed. There is no doctrine that an administrative regulation is immune from the power of the courts to review. It is true the courts themselves, in declining to revise administrative adjudi- cations, frequently assert that the administrative action is not subject to judicial examination and revision, but this limitation upon their reviewing power is self-imposed, and it may be dis- carded whenever they deem it prejudicial to the interests which the Constitution was designed to protect. In the Monongahela Bridge case', Mr. Justice Harlan notes that " learned counsel for the defendant suggests some extreme cases, showing how reckless and arbitrary might be the action of executive officers," and makes reply as follows : It will be time enough to deal with such cases as and when they arise. Suffice it to say, that the courts have rarely, if ever, felt themselves so constrained by technical rules that they could not find some remedy, consistent with the law, for acts, whether done by government or by individual persons, that violated natural justice or were hostile to the fundamental principles devised for the protection of the essential rights of property. Thomas Reed Powell. Columbia University. ' Monongahela Bridge Company v. United States, 216 U. S. 177 (1910). In this case Mr. Justice Harlan declared: " It was not for the jury to weigh the evidence and determine, according to their judgment, as to what the necessities of navigation required, or whether the bridge was an unreasonable obstruction. The jury might have differed from the secretary. That was immaterial; for Congress intended by its legislation to give the same force and effect to the decision of the secretary of war that would have been accorded to direct action by it upon the subject." The func- tion of the court was held to be limited to ascertaining whether the executive officers conform their action to the mode prescribed by Congress. Though the courts are often deaf to the plea that the administrative decision is erronef)us, they will always entertain a complaint as to the ]irocedure by which that decision was reached. Chin How v. United States, 208 U. S. 8 (1908). Cf. 22 Harvard Law Review, 360. ADMINISTRATIVE EXERCISE OF THE POLICE POWER. IN legislation passed in the exercise of the so-called police power, measures designed to protect the health and safety of the people, it is conceivable that the legislature might ascertain in advance the quahfications necessary for those engaged in any calling or the con- ditions essential to guard against danger and disease, and set forth in the statute specific requirements of regulation or prohibition. But the progress of scientific knowledge is so rapid that the require- ments of any statute might soon prove less adequate than other measures suggested by a more expert body. Moreover, any gen- eral rule declared by the legislature would be too inflexible to conform to the varying necessities of different areas of popula- tion, or to meet exigencies unforeseen at the time the statute is passed. The most salutary exercise of the police power is that which seeks to forestall the advent of danger, not merely to avert its conse- quences. This is best attained by requiring the presence of certain personal quahfications or physical conditions as a prerequisite to the lawfulness of any action sought to be taken. The inquiry as to compliance with requirements is a task obviously unsuited to the legislature. And the function of the judiciary is properly lim- ited to determining in cases and controversies whether any rule has been violated. And when health or safety are threatened b}' dan- gerous conditions or practices, adequate protection demands that they cease forthwith. The community cannot await the slow course of judicial proceedings. The legislature has therefore often seen fit to delegate to admin- istrative authorities the power to set forth the further requirements necessary to effectuate the general purpose declared by the statute, and to ascertain in individual instances whether the requirements have been met, and, if necessary, to take summary and immediate action to avert or minimize the threatened or actual danger. The ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 269 power to act in all these instances has been repeatedly sustained, in spite of the objection that it involves the exercise of legislative or judicial functions.^ I. Precautionary Regulation. It is obvious that anything which might be prohibited entirely may be subjected to governmental supervision and restriction. And many acts or conditions not necessarily pernicious in themselves may be regulated as a precaution against the dangers involved in inefficiency, unwholesomeness and excess. The government and its agents are accorded a wider latitude in exercising a qualified restraint, than in enforcing complete prohibition or direct and positive interference with liberty or property. This restraint commonly takes the forni of limiting the exercise of some calling or business to those persons or premises specially licensed. The exercise of this power involves the selection of the acts or objects to be regulated, the fixing of a standard, and the de- cision whether in individual instances the requirements of the standard have been met. The latter task is necessarily an admin- istrative one; and the two former, while they might conceivably be performed by the legislature, are quite generally delegated to administrative authorities, owing to the peculiarity of urban con- ditions and the superior technical knowledge of experts. A license as an official affirmation of personal fitness or approved physical conditions must be distinguished from a license which is merely the acknowledgment of the payment of a tax. CalHngs, occupations and businesses are proper subjects of taxation; and the method of collection may take the form of the denial of the right to proceed until payment of the tax is evidenced by a so-called license. In such cases the only reason for denying the license is the non-payment of the tax. But where the license is required as a police regulation, it may be withheld because the personal quali- fications or physical conditions do not meet the requirements of the standards imposed. While it is proper to exact a fee to cover the expense of supervision, the courts will hold invalid any exaction 1 Blue V. Beach, 155 Ind. 121 (1900); People v. Hasbrouck, 11 Utah 291 (1895); State V. Hathaway, 115 Mo. 36 (1892). 270 HARVARD LAW REVIEW. of money manifestly for the p\irpose of securing revenue, unless there is present both the intent as well as the power to tax. In a case where a license was required solely as a police measure, and a dispute arose as to the validity of the exaction of a fee and the proper person to be charged, a board which had expressed its will- ingness to examine relator as to his qualifications for locomotive engineer, but had stated that it would not issue a license without payment of the fee, was ordered by mandamus to admit him to examination, and if found qualified to issue the license.- The power to regulate must be used for the purpose of regulation. An ordinance requiring department stores to be licensed, which imposed a fee but provided no regulation or supervision, was held invalid as a police measure.^ The court seemed to doubt whether department stores are proper subjects for regulation. The selec- tion of such subjects is a matter over which they retain control. It has been held that the requirement that horse-shoers must have three years' experience and pass an examination bears no relation to public health, comfort, safety or welfare.'* And a statute vesting in an administrative board the power to determine who should be permitted to sell patent and proprietary medicines was held uncon- stitutional on the ground that the public health did not require that the sale of such articles be confined to persons with scientific attainments.^ The problem of judicial censorship over the subjects selected for regulation and the standards which may be required is one per- taining to the limits of the police power generally; though the courts may concede a wider latitude to the legislature as a co- ordinate department of government than would be accorded to an inferior administrative authority. In general, the licensing power may be exercised with respect to any business affording the possi- bility of practices or conditions inimical to health and safety, or to any calling requiring the exercise of expert skill or knowledge to avoid improper action necessarily prejudicial to those interests which it is the duty of the state to protect. Governmental supervision may be aimed at confining the exer- * Baldwin v. Kouns, 8i Ala. 272 (1886). ' Slate ex rel. Wyatt v. Ashbrook ct al., 154 Mo. 375 (1S99). * Tk'ssette v. The People, 103 111. 334 (iqoi). " Noel V. The People, 187 111. 587 (1900). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 271 cise of a calling to individuals personally qualified or to physical conditions deemed safe and sanitary. Among the acts held prop- erly subject to regulation in order to secure the latter end, are the storing of gunpowder,^ or inflammable and explosive oils/ the blasting of rock,^ the erection of proposed buildings,'' or bill-boards,^° the operation of slaughter-houses,^^ hotels,^^ livery stables,^^ laun- dries,^^ and nurseries for trees and plants,^^ the peddling of milk,^^ and the sale of milk,^^ meat^^ and provisions generally .^^ Among the callings where personal fitness may be required we find those of physicians,^" dentists,^^ pharmacists, -^ engineers,^ mine inspectors,^'* plumbers,^^ barbers ^^ and guides.-^ The power may be exercised not only to protect health and safety, but also to guard against fraud and immorahty. For this « Williams v. Augusta, 4 Ga. 509 (1848). 7 Richmond v. Dudley, 26 N. E. 184 (1891); Scranton v. Jermyn Oil Co., 5 Lane. L. Rev. 277 (Pa. 1888). 8 Commonwealth v. Parks, 155 Mass. 531 (1892), 9 Hasty V. City of Huntington, 105 Ind. 540 {1886); Com'rs of Easton v. Covey, 74 Md. 262 (1891); State i;. Sharkey, 49 Minn. 503 (1892); State v. Johnson, 114. N. C. 846 (1894). " City of Rochester v. West, 164 N. Y. 510 (1900). 11 Crescent City Live Stock Co. v. Butchers Union Live Stock Co., in CJ. S. 746 (1883); St. Louis V. Howard, 119 Mo. 41 (1893). 12 Russellville t». White, 41 Ark. 485 (1883); Holland v. Pack, Peck (Tenn.) 151 (1823); State V. Stone, 6 Vt. 295 (1834); Stanwood v. Woodward, 38 Me. 192 (1854). " 33 Cent. Dig., columns 1492, 1493. " In re Yick Wo, 68 Cal. 294 (1885). IS Ex parte Hawley, 115 N. W. 93 (S. Dak. 1908). « People 7!. Mulholland, 82 N. Y. 324 (1880). " People V. Vandecarr, 175 N. Y. 440 (1903)- 18 Kinsley i*. Chicago, 124 111. 359 (1888); Porter v. City of Water Valley, 70 Miss. 560 (1893); Ash V. The People, 11 Mich. 347 (1863). 19 Thomas v. Town of Mount Vernon, 9 Oh. 290 (1839). 20 Dent V. West Virginia, 129 U. S. 114 (1889); Reetz v. Michigan, 188 U. S. 505 (1903); People V. Hasbrouck, 11 Utah 291 (1895); France v. The State, 57 Oh. St. i (1897); State ex ret. Burroughs v. Webster, 150 Ind. 607 (1898). 21 State z;. Creditor, 44 Kan. 565 (1890); Gosnell v. The State, 52 Ark. 228 (1889); State V. Vandersluis, 42 Minn. 129 (1889); Wilkins v. State, 113 Ind. 514 (1887). 22 State V. Heineman, 80 Wis. 253 (1891); Noel v. The People, 187 111. 587 {1900). 23 McDonald v. The State, 81 Ala. 279 (1886); Smith v. Alabama, 124 U. S. 465 (1888); Nashville, etc. R. R. Co. v. Alabama, 12S U. S. 96 (1888). 2< Wilmington Star Mining Co. v. Fulton, 205 U. S. 60 (1906). 25 Singer v. State, 72 Md. 464 (1890); People v. Warden of City Prison, 144 N. Y. 529 (1895); Douglas V. The People. 225 111. 536 (1907)- 26 State V. Zeno, 79 Minn. 80 (1900); State v. Sharpless, 71 Pac. 737 (Wash. 1903). 27 State V. Snowman, 94 Me. 99 (1900). 272 HARVARD LAW REVIEW. reason it is held that the privilege of book-making and pool-selling may be limited to persons found to be of good character.-^ Such provisions are of course sustained in regulating any calling, such as the liquor traffic, which may be prohibited entirely. And even with respect to other callings, having no necessary flavor of evil, the power to license is upheld, though the qualifications required are of a moral rather than an intellectual nature. Licenses are demanded of private detectives,^^ pawnbrokers,^'' junk-dealers and dealers in second-hand goods,^^ auctioneers,^- book-canvassers,^^ and hawkers and peddlers.^^ Sometimes the inquiry preHminary to the granting of a Ucense will relate to the conditions of the place of business as well as to the qualifications of the one seeking per- mission. This would be true as to the sale of liquor, the conduct of a bilUard hall ^^ or other place of amusement/^ and of ware- houses.^^ Sometimes the precautionary measures of administrative author- ities extend beyond mere inspection to positive interference. The courts have sustained an ordinance requiring all second-hand clothing to be fumigated by public authorities at the expense of the owner ,^^ and a statute requiring all rags to be disinfected, whether actually infected with disease or not, where the danger was thought too great to permit of discrimination.^^ The same reason justifies compulsory vaccination. The acts and businesses subjected to regulation are far more numerous than any list to be gleaned from judicial decisions; for ^* State V. Thompson, i6o Me. 333 (1900). 2' In re Burnett's Ai)plic:ition, 5 Pa. Dist. R. 3 (1895). '" Launder z). Chicago, iii 111. 291 (1884). ^' Grand Rapids v. Brandy, 105 Mich. 670 (1895). '2 People exrcl. Schwab v. Grant, 126 N. Y. 473 (1891). ^ Borough of Warren v. Geer, 117 Pa. St. 207 (1S87). ^* Stale V. Harrington, 68 Vt. 622 (1896); Duluth v. Krupp, 46 Minn. 435 (iSqi); Commonwealth v. Gardner, 133 Pa. St. 284 (1900); Morrill v. State, 38 Wis. 428 (1875). ^ In re Sncll, 58 Vt. 207 (1885). ™ Walkuk V. City of New York, 3 Hun (N. Y.) 84 (1874). " Cargill Co. v. Minnesota, iSo U. S. 452 (1900). And for protection against fraud in sales, weights and measures may be required to be pro\ed and sealed by a public inspector. I'eople ex rcl. Gould v. Rochester, 45 Hun (N. Y.) 102 (1887). The use of uninsi)ectcd standards has been held a defense in an action for the ])rice of goods sold. Bisbeeti. McAllen, 39 Minn. 143 (1888); Smith v. Arnold, 106 Mass. 269 (1871). '" Kosenl)aum v. Ncwbcrn, 118 N. C. 83 (1806). ^'' Train v. Boslou Disiufcrling Co., 144 Mass. 523 (1887). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 273 many statutes and ordinances have been long enforced without bemg questioned in the courts.^" It is to be noted that even where supervision and the requirement of a hcense are not deemed improper, ordinances regulating useful callings have been declared invalid on account of discriminations in favor of certain classes or individuals which bear no relation to the fitness of those exempted from the examination or inspection re- quired of others.^^ A regulation which required a license for all electricians except those employed by the city in its departments of poHce and public buildings, and those employed by Ughting and electric railway companies in the installation and maintenance of meters and pole-line service, was held void on the ground of dis- crimination, where the court was of opinion that the work of those excepted possessed the same elements of danger as that of those required to be examined.^- While it has been held proper to divide engineers into four classes according to the character of the work in which they are engaged, with different qualifications for each class,^^ a regulation which required an examination of journeymen plumbers but permitted master plumbers to be registered without examination was declared invalid for lack of uniformity.^ The administrative action in establishing the standard set forth as a condition of obtaining the license, like the administrative se- lection of the subjects to be regulated, is open to judicial review. The court has doubted the legality of a requirement that no medical school would be put on the accepted list if it permitted more than forty-five per cent of its matriculants to graduate,^^ and has held unreasonable and void the requirement that applicants for a plumb- er's license must possess a knowledge of physics and hygiene.^ The right to conduct a nursery from which to sell plants and trees cannot be conditioned on establishing that the applicant is "re- sponsible," in the sense that he is financially able to pay damages for bad stock sold.^^ It was said that a man cannot be denied the *° See Freund, Police Power, sec. 493, for review of statutory requirements of recent years. ^ State V. Gardner, 58 Oh. St. 599 (1888); Harmon v. State, 66 Oh. St. 249 (1902). *- State V. Gantz, 124 La. 535 (1909). *^ Hyvonen v. Hector Iron Co., 103 Minn. 331 (1908). ** Commonwealth v. Shafer, 32 Pa. Super. Ct. 497 (1907). ^ Iowa Eclectic Medical College Ass'n v. Shrader, 87 la. 659 (1893). *« United States ex rcl. Kerr v. Ross, 5 D. C. App. 241 (1895). « Ex parte Hawley, 115 N. W. 93 (S. Dak. 1908). 18 274 HARVARD LAW REVIEW. right to sell his trees because he is poor, as poverty is no indication of dishonesty. In a decision sustaining the refusal of a license to practice medicine because of deceptive advertising, the court ob- served that "unprofessional conduct" must consist in something more than the violation of some code of professional ethics, and indicated that the mere fact of having advertised would be an in- sufficient ground for denying a certificate, even though such adver- tising is frowned upon by the profession.^^ In a recent Wisconsin opinion it was observed that there is a wide interval between the ideal and the practical, and that "common sense as to reasonable requirements and reasonable means of securing such requirements should prevail, not the extreme \aews of well- meaning persons as to what is for the best. Idealists ^s-ill often find efforts to force their standards of living upon people generally by legis- lation barred by constitutional limitations." *^ It is to be remembered, however, that, in exercising this re\'iew, the courts are chary of overruling the standard fixed by the admin- istration. In declining to hold that commissioners had exceeded their discretion in requiring party-walls to be thirteen inches in thickness, Mr. Justice Robb observed: "In view of the wide latitude of discretion given the commissioners by this act, a plain case of usurpation of power or abuse of discretion must be made before the court would be authorized to interfere." ^^ In another case which sustained as reasonable the administrative ruling that licenses to peddlers of milk would be granted only to those who provide a special room for storing milk and cleansing utensils, the court declared that it would not review the refusal of a license unless facts were alleged showing that the discretion was not honestly exercised in the interest of a pure milk supply, saying: "The office of an alternative writ, if one were granted, would be to try out in the courts the question as to whether it was good juilgment to require milk producers to maintain a separate milk room. This would substitute the opinion of the court for that of the milk officer. It is not " State V. State Medical ExamininR Board, 32 Minn. 324 (1884). « Bunnctt v. Vallicr, 116 N. W. SS5 (1008). '" United States ex rd. Smithson v. Ashfurd, 29 D. C. App. 350 (1907). ADMINISTRATIVE EXERCISE OF TEE POLICE POWER. 275 desirable or in the public interest that the discretion of the health ofl5- cer should be so reviewed, and, whether the power to do so exists or not, it ought not, in my opinion, to be exercised in this case." *^ So also, where the court denied a mandamus to coerce the grant- ing of a license where the board had determined that the college from which relator held a diploma was not "reputable," it was said that the methods by which the board should determine the reputability of a dental college not being set forth in the statute, they may do so in any way they deem proper, and that candidates for licenses must submit to their judgments, so long as they are within the boundaries of reason and common sense. "Having once determined the character of a dental college, within all reasonable limits, when and under what circumstances the subject shall be re-opened rests solely in the board's discretion." ^^ With respect to the regulation of those callings requiring expert ability, the Supreme Court has said that the nature and extent of the qualifications demanded must depend primarily upon the judg- ment of the state as to their necessity, and that if appropriate to the calling and attainable by reasonable study, no objection can be raised to their validity because of their stringency or difficulty. This was applied not only to the right to begin the practice of medicine, but to the privilege of continuing it.^^ But the qualifications required by statute, and so a fortiori by an administrative body, must relate to the subject matter demand- ing regulation. One cannot be deprived of the right to practice his profession for disqualifications .which have no bearing on his fitness to continue therein.^'' Yet the qualifications which relate to fitness are not confined to those of a technical or scientific order, but em- brace moral attainments as well. A physician, whatever his scien- tific attainments, may have his license revoked for employing these faculties perversely .^^ Under many statutes, however, the administration is not re- quired to establish any standard by which to test the right of an applicant to a license. Each individual case is committed to the ^1 Foote, J., in People ex rel. Shelter v. Owen, 116 N. Y. Supp. 502 (1909). 62 State ex rel. Coffee v. Chittenden, 88 N. W. 587 (Wis. 1902). 63 Dent V. West Virginia, 129 U. S. 114 (1889). ^ Cummings v. Missouri, 4 Wall. (U. S.) 277 (1866); Ex parte Garland, 4 Wall. (U. S.) 333 (1866). ^ Hawker v. People, 170 U. S. 189 (1898). 2/6 HARVARD LAW REVIEW. special and unregulated discretion of the board or official. Here obviously the courts cannot review the standard in the subcon- sciousness of the administration. They are necessarily the final ar- biters of the individual right or privilege. For this reason statutes vesting such power are in many jurisdictions declared invahd. A distinction appears between acts which, though they might possibly be prohibited entirely, yet may be so performed as to give rise to no danger or evil, and those deemed necessarily pernicious, however or wherever sought to be committed. In spite of their evil quality, the law-makers may find universal and complete pro- hibition inexpedient, and prefer to deny the right to all save those specially selected. The law is clear that, with respect to such acts, this selection and consequent granting of a Hcense may be com- mitted to the unrestrained discretion of an administrative body. The Supreme Court has declared ^^ that, since the Hquor trafiic might be prohibited altogether, there is no inherent right to engage • therein, and that therefore the manner and extent of regulation rests entirely in the discretion of the governing authority. A more difiicult question arises with respect to occupations which if properly conducted are confessedly innocuous, where the only source of danger lies in unsanitary conditions or in an excessive number of acts or establishments. In reference to such acts it is asserted by many courts that, though no one may claim the right to follow the given calling or to perform the given acts free from all restraint, each person must be granted permission on complying with certain conditions definitely set forth for his guidance. It has therefore been held improper to make the right to do any lawful act dependent on the mere whim of some administrative board or official, who may in the presence of identical conditions grant the privilege to one and withhold it from another. In Baltimore v. Radccke ^^ an ordinance prohibiting the erection of a stationary steam engine without the consent of the mayor and ct)uncil was held void for failure to set forth any conditions controlling the exercise of the discretion to grant or withhold permission. And in Yick Wo V. Hopkins,''^ the Supreme Court annulled a similar ordi- nance relating to the operation of laundries in wooden buildings, and declared: ''*' Crowley v. Christcnscn, 137 U. S. 86 (1890). " 49 Md. 217 (1878). " 118 O. S. 356 (1886). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 277 "The very idea, that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being of the essence of slavery." The language of this opinion has been cited in many decisions which have declared statutes and ordinances unconstitutional for making the right to exercise some act, trade or caUing, not harmful in itself, dependent on the unrestrained discretion of some admin- istrative authority. But the Supreme Court has receded from the extrem.e position announced in Yick Wo v. Hopkins, and stated that that decision should be rested on the fact that the administration of the law there indicated actual discrimination against a certain class of in- dividuals.^^ And in Wilson v. Eureka City,^° they sustained an or- dinance which prohibited the moving of any building on the streets without the written permission of the mayor, although the ordi- nance did not prescribe the circumstances by which his discretion in the matter was to be controlled. The court refers to Re Flaherty®^ and its summary of the decisions where the exercise of this unre- strained discretion has been held proper. It is true that most of them are instances of the use of the streets or the public parks, where the control of the city is more extensive than over acts done on a man's own premises. But others involved statutes which for- bade the keeping of swine without a permit from the board of health ,^^ or the erection and repair of buildings without a permit from the designated officials,''^ or made the right to ring bells or blow whistles dependent upon the consent of the board of aldermen.^^ Some of these acts might doubtless have been forbidden to every one within some defined area; but even as to such we have a square conflict of authority; for the decisions which object to the vesting of unrestrained discretion are based on the ground, not that every one has a right to do the thing for which consent is required, but that where not inherently evil whatever the conditions surrounding 5^ Crowley v. Christensen, supra, p. 276. 60 173 U. S. 32 (1898). 61 105 Cal. 558. 62 Quincy v. Kennard, 151 Mass. 563. 63 Hine v. The City of New Haven, 40 Conn. 478; Commissioners, etc. r. Covey, 74 Md. 262. 64 Sawyer v. Davis, 136 Mass. 239. 278 HARVARD LAW REVIEW. ' it, if permitted to one, it must be granted to another on fulfilling the same objective conditions. In spite of the dangers of favoritism and unjust discrimination, it may be said that unless such statutes are to be sustained, at least with respect to acts which if done too frequently or in too many places would produce manifest harm, it will be necessary to pro- hibit certain acts or occupations entirely, in order to prevent the danger which would arise from transferring the unrestrained dis- cretion of the administrative authority to the individuals engaged in the enterprise. After selecting the subjects for regulation and fixing a standard, there remains the further task of ascertaining in individual instances whether the requirements of the standard have been complied with. With respect to the quality of provisions or the condition of the premises where any business is sought to be conducted, the method employed will usually be that of inspection. Where the possession of personal qualifications is in issue, the determination may be reached by examining the candidate to discover his attain- ments, or by ascertaining whether he has fulfilled the require- ments of study or received a previous certificate prescribed by statute or regulations. In Reetz v. Michigan ^^ it was objected that the power to determine whether one had been legally registered under a prior statute involved the decision of a legal question. But the Supreme Court answered that no provision in the federal Constitution forbids a state from granting to a tribunal, whether called a court or a board or registration, the final determination of a legal question. The statute giving this power to the Board of Registration was sustained although no right of appeal was therein provided. And it is held that the task of determining upon qualifi- cations as to honor and moral fitness may be devolved upon an administrative body.^^ But the applicant is entitled to be heard upon the question.^^ Where the requirement of a license and the standards imposed are both valid, the receipt of permission is essential to the IcgaHty of action taken. It is no defense that llu- individual does in fact possess the qualifications which would entitle him to a license. The « i88U. S. S05 (100,0. «« Stale V. SUilc Medical Board, 32 Minn. 324 (1S84). «^ Ibid.f'scmble. ADMINISTRATIVE EXERCISE OF TEE POLICE POWER. 279 purpose of precautionary regulation would be defeated by allowing every one to be his own inspector, subject to the subsequent ap- proval of a jury. Unlicensed acts are illegal even though a hcense if requested could not rightfully be denied.^^ One who makes no re- quest for permission can defend his conduct only on the ground that permission could not be required. The determination of quali- fications is committed primarily to administrative, not judicial, au- thorities. The courts will not conduct an original investigation, nor can there be judicial review of an administrative determination which has not been made. If, however, the board refuse to entertain an application for a license, their consideration of quaUfications may be coerced by mandamus. The writ has issued to compel the giving of an exam- ination to determine whether relator is entitled to practice law,^^ and to compel a Civil Service Board to admit relator to examina- tion for an appointment to a position in the classified service. "° Moreover, the hcense itself may be secured by mandamus when the officers withholding it are vested with no discretionary power, but entrusted merely with a ministerial duty.^^ This rehef was ob- ^* This is true even where a license has been applied for and wrongfully refused. City of Montpelier v. Mills, 85 N. E. 6 (Ind. 1908). Vide infra, p. 289. Third parties may take ad\^antage of the illegality of unlicensed acts in a suit to recover for work done and materials furnished, Bronold et al. v. Engler, 105 N. Y. Supp. 508 (1907). Some decisions limit the doctrine to cases where the statute prohibits engaging in the business without a license or expressly vitiates all contracts made by one without a license, and refuse to apply it where such provisions are absent, Streivel v. Lally, loi S. W. 1 134 (Ark. 1909); or where the statute merely imposes a penalty. Sun- flower Lumber Co. v. Turner Supply Co., 48 So. 510 (Ala. 1909). If there was no at- tempt to comply with the law, third parties may take advantage of illegality where the requirement of a license is a revenue rather than a police measure, Gilley v. Harrel, loi S. W. 424 (Tenn. 1907); but it is held that the non-payment of a revenue tax, where it was tendered but not accepted, does not invalidate the contracts of an un- licensed person, where the occupation was otherwise lawful and required no regulation or supervision. Fossett v. Rock Island Lumber & Mfg. Co. et al., 76 Kan. 428 (1907). 69 Florida ex rel. Lamson v. Baker, 25 Fla. 598 (1889). 70 People ex rel. Ryan v. Wheeler, 2 N. Y. St. Rep. 656 (1886). Cf. United States ex rel. Kerr z;. Ross, 5 D. C. App. 241 (1895), where commissioners who had unlawfully delegated to a board of examiners the power to entertain appUca- tions for licenses were compelled by mandamus to receive and entertain the applica- tion themselves, and Territory!). McPherson, 6 Dak. 27 (1888), where the writ issued to compel commissioners to fix licenses to sell Uquor under the right statute after they had fixed them under the wrong one. '1 People ex rel. Danziger v. Metz, 107 N. Y. Supp. 970 (1908); State Board of Pharmacy of Kentucky v. White, 84 Ky. 626 (1886); People v. Busse, 231 III. 251 (1907) 28o HARVARD LAW REVIEW. tained where the refusal to issue a permit for a building was based on authority claimed under an ordinance declared invalid,"- and where an excise board denied a license on grounds not committed to their jurisdiction,"^ or for the professed reason that no more saloons were needed and that a number of neighboring property owners less than a majority objected, which was no legal ground for the refusal. ^^ Where, however, the denial of a license is based on a finding of fact lawfully committed to the discretion of the licensing authority, mandamus is not available to substitute the discretion of the court for that of the administrative board. In a case where the writ was sought after the board had passed adversely on the standing of the medical school from which relator received his diploma, the opinion stated that "while courts on suitable occasions will apply the spur of mandamus to put the discretion of inferior courts and officers in motion, yet after that discretion has been exercised, as in the case at bar, no matter in what way, the mandatory authority to compel the doing of the particular act prayed for is at an end." It was further observed that, should the court arrogate to itself such revisory powers, " it would, while palpably usurping functions conferred exclusively by the law upon others, in the endeavor to ascertain whether a given college is a ' medical institution in good standing,' . . . find itself seriously embarrassed by the character of the investigation it would be compelled to make; might find itself wandering amid the mazes of therapeutics or else boggling at the mysteries of the pharmacopoeia." ''^ The doctrine is well established that the courts will not in inan- damus proceedings endeavor to ascertain for themselves the (where the board had no discretion to refuse a license to sell cigarettes manufactured only from pure tobacco). '- Hostock V. Sams, 95 Md. 400 (1902). Ordinance attempted lo aulliorize refusal of permit to ctccI building which would not conform in appearance to other buildings in the neighborhood, and would tend to depreciate the value of surroinuling property. " Grifl'in v. United States ex rel. Le Cuyer, 30 D. C. App. 291 (1908); State ex rel. Johnston v. Lutz ct ill., 136 Mo. 633 (i8yO). ^■' Stale ex rel. Galle v. New Orleans, 113 La. 371 (1904). " State ex rel. Granville i;. Gregory, 83 Mo. 123 (1884). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 281 standing or reputation of the institution found deficient by the administration.'^ The same rule prevails where the hcensing authority has in the exercise of discretion duly vested passed adversely upon the personal qualifications or characteristics of an applicant. Mandamus was denied to overrule the decision of the State Board of Examiners of Architects in refusing a Kcense to relator on the ground that he was a builder and not an architect, although the trial court had found that he was an architect and had ordered the writ to issue." And where the writ was sought to secure a certificate to practice den- tistry denied by the board after a personal examination of the re- lator, the petition was dismissed and the refusal of the court below to inspect the examination papers was sustained.''^ Mandafnus has been denied to overrule the exercise of discretion in denying a license to a person deemed unfit to be an auctioneer, the court declaring that the discretion of the mayor is not subject to judicial supervision or control."^ It has been denied also to over- rule the determination that relator was not qualified to run an intelligence office,^" did not possess the moral attainments requisite to entitle him to a Hcense for a dram-shop,^^ or was not a fit and suit- able person to conduct a pawnbroker's establishment.^- So also it was refused where the County Commissioners denied a license to carry fire-arms on the ground that the apphcant and his wit- nesses were unknown to them, so that they were not satisfied as to his moral character. ^^ The court observed further that if the stat- ute requiring a license were unconstitutional, ma^idamus certainly could not be employed to compel its issue. Where the privilege sought is of great importance, the courts are inclined to be more guarded in their language when decHning to review administrative judgments on moral quahfications, although a careful search has failed to discover any instance where vianda- ™ Williams v. Dental Examiners, 93 Tenn. 619 (1894); State ^.r rcl. IMedical College V. Coleman, 64 Oh. St. 377 (1901); State ex rel. Kirchgessner v. Board of Health, 53 N. J. L. 594 (1891). " Illinois State Board of Architects v. The People, 93 111. App. 436 (1900). ^8 Ewbank v. Turner, 134 X. C. 77 (1903). " People ex rel. Schwab v. Grant, 126 N. Y. 473 (1891). ^ People ex rel. Hall v. San Francisco, 20 Cal. 592 (1862). 81 State ex rel. Kyger v. Holt County Court, 39 Mo. 521 (1867). 82 Harrison v. People, 121 111. App. 189 (1905)- ^ Florida ex rel. Russe v. Parker, 57 Fla. 170 (1909). 282 HARVARD LAW REVIEW. mus was issued because the court differed from the administration on the question of an applicant's character. But in State ex rel. Hathaway v. State Board of Health,^' which denied mandamus to compel a certificate to practice medicine, where the board's refusal was based on the ground that relator's previous advertising had been unprofessional and dishonorable, the court qualified its asser- tion that the Board of Health is charged with the performance of important discretionary duties, whose performance will not be ham- pered by mandamus, by the exception: "until a case of manifest injustice is shown." In a similar case where the unprofessional conduct consisted in the claim to be a medicine man of a tribe of Indians and the proprietor of a marvelous nostrum which when taken internally would cure cholera morbus and when applied ex- ternally drive away rheumatism, the court, though unqualified in its assertion that the certificate could not be compelled by manda- mus, went further and observed that unprofessional conduct must consist in something more than the violation of some professional code of ethics.^^ Many of the administrative decisions which the courts decline to review relate to matters which the Supreme Court declares may lawfully be committed to the uncontrolled discretion of the board. ^^ Where the discretion is so wide that it may be exercised without announcing the reasons on which it is based, the administrative judgment seems necessarily free from judicial review. To require the administration to set forth in its answer every motive aid circumstance which influenced its action would defeat the very ^ 103 Mo. 22 (1890). ^ Slate ex rel. Powell v. State Medical Examining Board, 32 Minn. 324 (1SS4). *" This is true of the denial of a license to sell liquor, Sherlock v. Stuart, 96 Mich. 193 (1893), where based on the ground of excessive numbers, State ex rel. Howe v. Norlhfield, 94 Minn. 81 (1904); denial of a license to keep a tavern on ground place pro[)osedis not convenient, Yeagcr, ex park, 11 Gratt. (Va.) 655 (1854); to run a theatre, People ex rel. Armstrong v. Murphy, 72 N. Y. Supp. 473 (1901); to conduct a musical entertainment, on the ground llial it would have a demoralizing influence ance litjuors were dispensed in the place proi)()sod. People ex rel. Dorr i'. Thatcher, 42 Hun (N. Y.) 349 (1S86); to erect a livery stable, Hester v. Thomson, 35 Wash. 119 (1904); to construct a sidewalk. State ex rel. Connor v. St. Louis, 158 Mo. 505 (1900); or to run a ferry, on the groimd that the public necessity did not require it. State ex rel. Cami)bell v. Cramer, 96 Mo. 75 (1888). Cf. Conunonwcalth v. Stale Board of Health, 4 Walker (Pa.) 350 (1862). In Bailey v. \'an Burcn Circuit Judge, 128 Mich. 627 (iQOi), where the board declined to approve a druggist's bond on the ground that the sureties were insufficient, the court refused to frame for the jury an issue as to good faith. ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 283 purpose for which this wide discretion is vested. But Yick Wo v. Hopkins ^^ is still law to the effect that the exercise of this discretion is improper when employed arbitrarily and unjustly to discriminate against a certain class. One who had been denied a license under such circumstances could clearly resist criminal prosecution.^^ Possibly under such circumstances, mandamus would lie to secure a license. In the opinion from the Missouri court which contained the strongest language against reviewing the administrative dis- cretion by mandamus,^^ it was said that the discretionary power to refuse a certificate to practice medicine does not extend to dis- criminating against any particular school of medicine. And in another case where a peremptory mandamus was denied to over- rule the decision of the board of health in revoking permits to sell milk, that court suggested that relator should proceed by alternative mandamus if the board had acted arbitrarily or tyrannically.^*^ In another decision from Missouri, it was declared obiter that, if the board withholds a license from caprice, mandamus will lie to compel them to perform their duty, even though the ordinance may not provide that no person possessing the necessary qualifications shall be refused a license. ^^ The same possibility of judicial review is suggested by another dictum which states that to secure mandamus, it is not sufficient to allege in general terms that the refusal of the permit was capricious, tyrannical, arbitrary and unreasonable, but that facts tending to show it must be stated.'*- All these decisions, however, dealt with administrative determina- tions reached after an endeavor to ascertain whether the applicant possessed certain qualifications or attainments announced as the condition on which all should be entitled to receive the Hcense or permit. Where the board is not required to set forth the conditions which are to control its discretion, its action is necessarily in a cer- tain sense capricious and arbitrary. Since no applicant has ground of complaint merely because he is denied permission under circum- stances identical to those under which it is granted to another, it must be exceedingly doubtful whether he could coerce the issue of a Hcense by showing further that licenses were invariably denied to 87 118U. 5.356 (1S86). 8» Ibid. 89 State ex rel. Granville v. Gregory, 83 Mo. 123 (18S4). 90 People ex rel. Lodes v. Board of Health, i8q N. Y. 187 (1907). 91 St. Louis V. Lamp INIfg. Co., 139 Mo. 560 (1897). 92 People ex rel. Shelter v. Owen, 116 N. Y. Supp. 502 (1909). 284 HARVARD LAW REVIEW. some group or class to which he belongs under circumstances which uniformly resulted in permission being accorded to others. It is more likely that he must assume the risk of acting without per- mission, relying on the discrimination practiced as a defense when prosecuted criminally. But the dicta quoted are an indication that where the discretion vested is not unlimited, mandamus will sometimes lie to control the action of the board. Where their discretion is confined to the ascer- tainment of matters of fact, mandamus may be employed to review the assumption of power to determine questions of law.^^ Thus the writ was granted where the return of building commissioners ad- mitted conditions necessary to entitle relator to his certificate and revealed that their refusal was based on error of law.^^ And where in any other way the pleadings disclose that the issue of the writ will not interfere with the exercise of discretion but will force action refused on some other pretense, the court will grant re- lief. Thus where on demurrer to the petition it was conceded by the board that the relator on examination had exceeded by five per cent the minimum requirements and that he was denied his certifi- cate ''wilfully and maliciously," redress was given on the theory that the board having exercised its discretion and found relator qualified, the issue of the certificate was a mere ministerial act.^^ The writ was also granted where the discretion vested was confined to the power to determine the reputability of the college from which relator received his diploma, and the board by demurrer confessed that it found the standing of the institution satisfactory, but denied the license through malice and the desire to injure relator's college in order to promote the interests of a rival in which the members of the board were personally interested.'''' Having determined that the college was reputable, their judicial or discretionary power was said to be exhausted. In discussing the function of the writ, the court declared that it could afford a remedy where the discretionary power was exercised with "manifest injustice" or where "it is clearly shown that the discretion is abused." It was said that an officer may be guilty of "so gross an abuse of discretion or such an »' GaRC V. Censors, 63 N. H. 92 (1884). "^ MacFarland v. Miller, 18 1). C. App. 554 (igoi). »'■ Dean V. Cami)l)ell, 50 S. W. 294 (Tex. 1900). "» The Illinois Stale Hoard of Denial E.xamincrs v. The People ex rcl. John M. Cooper, 123 111. 227 (1887). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 285 evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined." No such broad principle was necessary to es- tablish the right to relief under the pleadings; but in a recent Mis- souri decision, the issue of the certificate was compelled merely be- cause the court differed from the board on a finding of fact." The denial of the certificate was based on the finding of the board that the applicant was not a matriculant in a medical school prior to a certain date. The court ruled that the evidence before the board could not possibly warrant such conclusion, and seemed to regard its power to overrule the finding of the board in the same light as its duty to set aside the verdict of a jury. But any such doctrine must be confined to determinations based merely on the weighing of evi- dence and involving no exercise of expert judgment or opinion. Where the discretion has been rightly exercised, the court will not issue mandamus conditioned on compliance by the relator with such lawful changes as the board may order. "The office of a mandamus is not to compel action by the building department in advance of the preparation and adoption of proper plans, but only to compel action when plans affording no legitimate ground of objection have been arbitrarily or unreasonably condemned." ^^ The writ will not issue against an officer subject to the control of some higher administrative authority. Thus, where a building com- missioner denied a permit to make alterations and his denial was sustained by a Board of Appeal, the court held that he had no authority under the statute to issue the permit and therefore could not be constrained by mandamus.^^ Whether some action might be entertained to review the decision of the Board of Appeal was not determined. Certiorari proves an even less effective remedy than mandamus; for it is refused, not only because of the nature of the decision sought to be reviewed,^"" but because of the impotence of the " State ex rel. McCleary v. Adcock, 206 Mo. 550 (1907). ^^ Hartmen v. Collins, 94 N. Y. Supp. 63 (1905). " Greene v. Damrell, 175 Mass. 394 (1900). 1"" In Hildreth v. Crawford ct als., 65 Iowa 339 (1884), where a pharmacist's license was revoked because of illegal sales of intoxicants, the court declared that where the commissioners of pharmacy are clothed with power to determine certain facts, theu: decision cannot be reviewed on certiorari upon the ground that the evidence was in- competent or insufficient; and in State ex rel. Puyallup v. Superior Court, 50 Wash. 650 (1908), prohibition was issued to prevent certiorari to review the act of the council in revoking a liquor license, on the ground that its action in revoking a license with- 286 HARVARD LAW REVIEW. remedy. "If the act of granting a license is merely ministerial, the writ of certiorari will not lie to review an order of the board, because it is not judicial in its nature. And if the act is judicial, yet dis- cretionary in character, the writ will not lie because it would be contrary to a discretionary power to have it reviewed by way of appeal, or by any proceeding in the nature of an appeal." ^°^ The writ has been denied to review the determination of a board of health that relator was not entitled to a license to sell milk, where under the statute such determination might be reached without granting a hearing, on the ground set forth in the opinion that certiorari lies only to review action judicial in character, and a judi- cial proceeding implies a hearing as a matter of right to the person affected thereby.^'^^ In some jurisdictions, however, certiorari is emplo}'ed to re\aew administrative action not necessarily judicial in nature. There it seems to afford the same opportunities for redress which are avail- able in mandamus proceedings. In Pennsylvania, though certiorari is denied to review the exercise of discretion in granting or refusing a license to sell liquor,^"^ it is employed, where there has been a hearing, to ascertain whether the licensing authority has kept within the limits of the powers conferred and has exercised them in con- formity with law. It was decreed that where there was no discre- tion to refuse a license, the denial of the board should be reversed and a procedendo awarded. ^"^ In New Jersey, relief against the revocation of a license was granted for the express reason that the board had failed to accord a hearing.^"'' In an Iowa decision which denied certiorari on the ground that it is unavailable to review the correctness of decisions of fact within the jurisdiction vested, it was out cause and refunding the unearned portion of the license fee is conclusive and not subject to review Ijy the courts. "" Com'rs of Raleigh v. Kane, 2 Jones L. R. (47 N. C.) 2S8 (1S55). ii^ People ex rel. Lodes v. Department of Health of the City of New York, 100 N. Y. Supp. 788 (1906), afTirmcd on appeal without opinion in 102 N. Y. Supp. 1145 (1907). But in the same jurisdiction it may possibly lie inferred that certiorari is not neces- sarily improper to review tiie revocation of a license after a hearing, for the denial of the writ has been placed on the ground tliat it was nol requested in season to award relief before the expiration of the license. reo|)le ex rd. Pechtold v. Bogart, 107 N. Y, Supp. 831 (1907). '<" Reed's Appeal, 114 Pa. St. 452 (18S6). "" Pollard's Petition, 127 Pa. St. 507 (1880). '"^ Hailing j'. Board of Excise of City of Klizabeth d al., 74 Atl. 277 (N. J. 1909). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 2S7 stated ohiter that certiorari may consider whether the defendant has exceeded his proper jurisdiction or is otherwise acting illegally, and that relief would be given if the determination had been reached without a hearing.^"^ But this employment of the writ to review ac- tion not judicial in nature runs counter to the great weight of authority. Where there exists a recognized ground of equitable jurisdiction, it seems that the Hcensing authority may be enjoined from taking any action with respect to the granting or refusal of a license, if the statute under which it claims authority is unconstitutional. ^°^ But an injunction will not issue merely because the beard seems about to make a mistake in deciding whether a license shall be granted. Where it was sought to prevent a sealer of weights and measures from deciding whether he would approve of a certain kind of computing-scale, on the ground that he intended to condemn all scales of the given variety, it was held that the correctness of this kind of scale was not properly in issue, because the court could not take from the officer the duty of deciding the question on the ground that he intends to come to a wrong decision.^"^ In another case injunction was denied to restrain the revocation of a hcense, on the ground that the board had the right to proceed to revoke even if they were about to act erroneously, and that the statute giving an appeal to the district court on questions of law and fact fur- nished an adequate remedy.^"^ Such remedy as is afforded by the possibility of securing the license by mandamus would seem suffi- cient ground for denying the interposition of equity in all cases where no positive interference is threatened. Moreover, it has been held that injunction will not lie to restrain a board of health from interfering with a business for which a per- mit was denied, however wrongfully, where the statute provides pecuniary penalties for the violation of their orders, for this is in the nature of an appeal to equity to restrain public officers from enforc- ing the criminal law."° But a contrary result was reached where the court held that the rule that equity will not enjoin the enforce- ment of a penal ordinance is limited to attempts to restrain judicial los Iowa Eclectic Medical College Ass'n v. Schrader, 67 la. 659 (1893). '"^ Moneyweight Scale Co. v. McBride, 199 Mass. 503 (1908), (sanblc). 108 Ibid. 109 Wolf V. State Board of Medical Examiners, 123 N. W. 1074 (Minn. 1909). "0 Cohen v. Department of Health, 113 N. Y. Supp. 88 (1908). 288 HARVARD LAW REVIEW. enforcement, and restrained a board from closing the plaintiff's place of business for the alleged violation of a liquor ordinance.^" Where the enforcement threatened is not penal in its nature, a bill will be granted to restrain unlawful action, provided there is some basis of equitable jurisdiction. The immediate incarceration in a pest house of one afflicted with leprosy has been restrained where it appeared that less stringent measures would afford adequate pro- tection to the public."- The court doubted whether an action for damages would be an adequate remedy, even if one would he, but were of opinion that the officers would not be personally responsible for such an error in honest judgment of what their official duty re- quired. In a case where a bill to enjoin the enforcement of an ordi- nance requiring the registration of plumbers was dismissed because the ordinance was held to be valid, the court observed that even if it were void, no individual plumber could secure an injunction be- cause no property right was involved, but that the firm employ- ing plumbers might secure such relief because there was a threatened invasion to property rights in that their business would be greatly injured if they were prevented from securing the services of plumb- ers."^ It is not inconceivable that the individual plumber might also feel that his business would be greatly injured if he were pre- vented from securing employment. It is manifest, then, that where the lawfulness of any action may be conditioned on the possession of a license, the individual is largely dependent upon the judgment of the administrative body to whom the duty of passing upon his qualifications is entrusted. Without a license he proceeds at his peril. Where there is power to regulate and the standards imposed relate to the matter under supervision, but are invahd merely because of their excess, the one denied per- mission cannot proceed without a permit, but is limited to the right to enforce the issue of a license or permit on compliance with stand- ards deemed adequate by the court. A builder cannot erect a wall according to his fancy, although the requirements of the admin- stration may be excessive."'* It has been held that a showing of "^ Canon City ci al. v. Manning el al., 95 Pac. 537 (Col. 1008). "2 Kirk V. Wyman, 83 S. C. 372 (1000). In ChicaRo v. 'I'he I'Vrris Wheel Co., 60 111. App. 384 (1805), the city was enjoineii from interfering wi'li t'lt-' Ferris Wheel for non- payment of a license fee which the court a(liuil!.;cil cxorljitant. "•■' Robinson v. City of Galveston, 11 1 S. W. 1076 (Te.x. 1008). "•» City of New York v. O. J. Gude Co., 107 N. Y. Supp. 484 (1907), {semble). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 289 qualifications, a tendered compliance with all the terms and con- ditions of the license ordinance, and an arbitrary and wrongful re- fusal by the municipal authorities to issue the hcense does not waive the necessity of such hcense or justify acts done without it."^ But the minority opinion insisted that such a doctrine applies only when the board has discretion to refuse the license. In an earlier decision in the same jurisdiction, where the license was withheld by a ministerial officer after the licensing authority had ordered its issue, it was held that no conviction could be sustained for acting without the license. The wrong was said to be that of the officer, not of the applicant.^^^ And it is clear that a prosecution for unlicensed acts may be de- feated by showing that the statute under which the license is re- quired is not a vahd pohce measure, because a mere pretense for exacting revenue, because the matter to which it relates is not sub- ject to police supervision,^^^ because the qualifications or condi- tions required are not germane to the matter under regulation,^^^ because the statute discriminates unwarrantably against certain members of the class required to be licensed,^^^ or permits such dis- crimination to be made by the licensing authority,^-'^ or because the uncontrolled discretion lawfully vested is employed unreasonably to discriminate against the class to which the defendant belongs.^^^ Thomas Reed Powell. Burlington, Vt. [To be continued.] "^ City of Montpelier v. Mills, 85 N. E. 6 (Ind. 1908), and cases cited in the opinion. Cf. Phoenix Carpet Co. v. The State, 22 So. 627 (Ala. 1897), which held that wrongful refusal to receive payment of a tax and to issue a license does not justify corporation in doing business without the license. Its remedy is by mandamus to compel the issue of the license. "« Padgett V. The State, 93 Ind. 396 (1884). "' Bessette v. The People, 193 111. 334 (1901). "* Cummings v. Missouri, 4 Wall. (U. S.) 277 (1866). "9 State V. Gardner, 58 Oh. St. 599 (1888); Harmon v. The State, 66 Oh. St. 249 (1902); State V. Gantz, 124 La. 535 (1909); Commonwealth v. Shafer, 32 Pa. Super. Ct. 497 (1907). 12" Yick Wo V. Hopkins, 118 U. S. 356 (1886). ^1 Ibid., as qualified in Crowley v. Christensen, 137 U. S. 86 (1S90). 19 ADMINISTRATIVE EXERCISE OF THE POLICE POWER. [Continued.] II. Administrative Orders and Execution. PRECAUTIONARY regulation cannot always afford adequate protection to public health and safety. Many acts must be prohibited altogether, irrespective of the personal quahfications of those who would undertake them; and the denial of permission to proceed obviously cannot guard against the perils which arise from natural conditions and human neglect. The exercise of the poUce power will therefore often take the form of absolute prohibition and of specific commands to take positive remedial action, or even of such action by governmental authorities. Here, as in precautionary regulation, the importance of expert judgment and of flexibility in the law induces the legislature to vest wide powers in administrative bodies. The discretion so vested may consist in the power to issue general regulations, supplementing the statute, and relating to designated acts or conditions wherever committed or existing within the area over which the administra- tive authority has jurisdiction. These general regulations may be unlimited as to time,^ or promulgated only for some temporary emergency." In other instances the statute may itself condemn certain physical conditions, and vest in some administrative body 1 State V. Speyer, infra, p. 344. 2 Jew Ho V. Williamson, infra, p. 341. 334 HARVARD LAW REVIEW. the power to direct the alterations to be made by specific orders in each individual case; ^ or the board may be authorized to select the particular property, acts, or practices assumed to be hazardous, and direct such discontinuance or modification as it may judge neces- sary.'* Finally, the administration may be empowered to take ac- tion itself, forcibly interfering with person or property to apply the necessary remedy.^ A. Necessity for Notice and Hearing. (i) General Regulatiofis. — Where the persons affected by any regulation or, order cannot be definitely known, the requirement that they must have notice and an opportunity to be heard before its issue would obviously defeat the exercise of the power vested. Accordingly the granting of such opportunity is not deemed a pre- requisite to the issue of regulations general in scope. In Belcher v. Farrar ^ it was held that the order of the board of health prohibiting the manufacture of kerosene within the town limits was not invali- dated by the fact that it was passed without first giving notice to those engaged in carrying on the trade. (2) Special Orders. — Often the order of the board will relate only to a named individual. The legislature may itself designate the objects or acts which it deems dangerous, and leave to the ad- ministrative body only the power to specify the remedial action to be taken in each particular case. Here there is no inherent reason why the individual concerned may not be given an opportunity to be heard. But here also such opportunity is not deemed essen- tial to due process. The statute under consideration in Health Department v. Rector of Trinity Church ^ required that all houses of a certain description should "upon direction of the board of health " be supplied with water "in sufficient quantity" at one or more places on each floor occupied by a family. The owner objected that the order of the board was made without notice to him. JUit the court replied that the changes might have been ordered specifically by {he legislature ' Health Deparlmcnt v. Trinity Church, infra. * Board of Health v. Copcutt, infni, p. x^S- ' North American Cold Storage Co. v. Chicago, infra, p. 336. « 8 Allen (Mass.) 325 (1864). » 145 N. Y. 32 (189s). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 335 without giving notice to persons to be affected thereby, and as- serted that the fact that the legislature had chosen to delegate a certain portion of its powers to the board of health did not alter the principle. The order in this case, though relating to an individual piece of property, was not in the nature of an adjudication, requiring the ascertainment of facts from conflicting evidence, but was merely the declaration of the will of the governing authority, — the Aiaking of a special regulation to fill in the details of the statute, which by reason of the flexibility of its requirements may be regarded merely as an amalgam of separate statutes passed in respect to each mem- ber of the class to which its general provisions relate, r The legisla- ture might have passed a special enactment for each tenement house in the state; so that the court was clearly justified in appl}-ing the same principle adopted with respect to regulations more general in scope. (3) Adjudications. — The administrative action to which a prop- erty owner objects may consist in a determination or adjudication that dangerous or unsanitary conditions exist, as well as a declaration of the remedial action deemed necessary. Where the property ad- mittedly falls within the ban of some administrative prohibition be- cause of certain characteristics inhering in all property of the same general nature or devoted to the same general purposes, we have merely an exercise of the general ordinance power already con- sidered. But when the owner denies that his estate is within the iniquitous class, and the administrative order involves a determi- nation of the dispute, or where it is based on conditions peculiar to the individual parcel, we have action commonly deemed to be of a judicial nature, where notice and an opportunity to be heard is sup- posed to be essential. But even here, the doctrine prevails that such notice and hearing may be dispensed with. In an action for penalties for violating the orders of a board of health relative to the destruction of a certain dam and a bill to en- join further violation,^ it was held that the defendant had no ground of complaint merely because the order which decreed the destruc- tion of his particular piece of property was passed without notice and an opportunity to be heard. The same court refused to review the proceedings of the board by certiorari, on the ground that it 8 Board of Health v. Copcutt, 140 N. Y. 12 (1893). 336 HARVARD LAW REVIEW. had the right to act "upon its own inspection and knowledge of the alleged nuisance," and could obtain its infonnation "from any source and in any way." ^ But in all these instances, the issue of some regulation or special order is in itself merely a threatened, not an actual, invasion of prop- erty right. Where it is not to be enforced without first giving the owner an opportunity to comply with its demands, he may reach the ear of some chancellor and urge other reasons for enjoining the enforcement of the administrative order, than that it was issued without granting him prior audience.^" (4) Summary Execution. — Meanwhile, however, the danger which the administration sought to avert may already ha\'e ac- crued. In the removal or destruction of conditions dangerous to pub- lic health and safety, prompt action is often of the utmost necessity. The administration is therefore often authorized to remove or de- stroy property without even notifying the owner that any action is contemplated. Such summary execution is not improper merely because the owner had no prior opportunity to take action himself or to dissuade the board from acting. ^^ In dismissing a bill seeking to enjoin health officials from destroy- ing certain poultry in cold storage without first giving the owner an opportunity to be heard as to its condition, the Supreme Court refers to the difficulty of guarding against the peril from unwhole- some conditions while the hearing is in progress, and holds that in matters relating to the destruction of food not fit for human use, the question whether the danger to the public health is such as to require the denial of this preliminary hearing is one for the reasonable dis- cretion of the legislature.^^ They held that this boundary had not been transgressed, in spite of the complainant's plea that the denial of a hearing is unnecessary as to the condition of food in cold storage, which can do no harm until it is removed. The owner complained also that he was not permitted to carry on his ordinary business until he delivered the poultry claimed to be diseased. The point was waived in order to secure a decision simjilv » People ex rel. Copcutt v. Hoard of llciillli, 140 N. Y. i (1S93). " Sec infra, "Judicial Review." " This power vested in admiiiislra(i\e aulliorilies is no greater tlian tlial exercised by individuals. .A private individual may al)ale summarily a pulilie nuisance by which he is specially aggrieved. See cases cited in Fields v. Stokely, 90 Pa. St. 306 (18S2). " North American Cold Storage Co. v. Chicago, 2n U. S. 306 (1908). ADMINISTRATIVE EXERCISE OF TEE POLICE POWER. 337 as to the omission of a hearing; but the court observed that such action would seem to have been arbitrary and wholly unnecessary. It would seem, however, that if authorized by the statute, it should be sustained. When the owner refuses to separate the bad from the good, adequate protection requires that he be prevented from distributing any of the products so intermingled. Thus it is estabHshed that the granting of an opportunity to be heard is not a prerequisite of the vaHdity of administrative action in the exercise of the pohce power, whether it take the form of the issue of a general or special regulation, a determination that certain property constitutes a nuisance, or forcible destruction or removal. This power of summary administrative action without notice and an opportunity to be heard is sustained also with respect to the for- cible removal to a pest-house of a person infected with a contagious disease, ^^ and it seems, also, a person having the appearance or symp- toms of a contagious disease ; ^^ the confinement to his home and quarantining of a person reasonably but erroneously believed to be infected with a contagious disease; ^^ the seizure of samples of milk for purposes of analysis; ^^ the destruction of that found below standard,^^ and similar destruction of commercial fertilizers which, though innocuous, are equally impotent to do good, and therefore valueless for commercial purposes; ^^ the seizure of intoxicating liquor kept and intended for unlawful use,^^ and of property deemed unsuitable for any righteous purpose, such as gambhng instru- ments; -° and the removal and incidental destruction of articles which, though capable of lawful use, are actually employed for 13 Haverty v. Bass, 66 Me. 71 (1876). " Brown v. Purdy, 8 N. Y. St. Reporter 143 (1886), (semble). 15 Beeks v. Dickinson County et al., 131 la. 244 (1906); Valentine i;. Englewood, 76 N. J. L. 509 (1908). 1^ Commonwealth v. Carter, 132 Mass. 12 (1882). 1' Deems v. Baltimore, 80 Md. 164 (1894). 18 Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345 (1898). Cf. Buttfield V. Stranahan, 192 U. S. 470 (1904), for similar action by federal authorities under the power to exclude imports from foreign countries. 19 State t;. O'Neil, 58 Vt. 140, 161 (1885). 20 J. B. Mullen & Co. v. Mosley, 13 Idaho 457 (1907), Police Commissioners v. Wag- ner, 93 Md. 182 (1901), and cases cited in the opinion. Contra, Lo\\t>- v. Rainwater, 70 Mo. 152 (1879): "The vices which acts authorizing these summary proceedings pro- pose to eradicate are inconsiderable in comparison with the value of the constitutioaal guarantees which secure to the citizen his liberty and his property." 22 338 HARVARD LAW REVIEIV. illegal purposes in such a manner that their forcible removal is the only method of terminating promptly a continuing and persisting violation of the law, effected without the aid of renewed or repeated activity of any human agency .^^ In the Supreme Court the power of summary removal of articles so violating the law is confined to those of trifling value.-- Tliis limitation prevents the exercise of summary administrative action to secure the seizure and sale of teams employed unlawfully in cutting timber on public lands, ^^ and of boats or vessels used by one person in interfering with oysters or other shell-fish belonging to another.-^ It is held that judicial proceedings are always necessary where the sale and not the destruction of property is to be effected. The courts sanction the. summary removal of wooden roofs and buildings con- structed in defiance of the building laws; -^ but reasonable care must be taken to preserve the materials for the owner.-^ In the cases re- lating to buildings, notice to the owner preceded the abatement by the administration; but in the Indiana decision it was declared that buildings erected in violation of the building laws are public nui- sances, and that public nuisances may be abated without notice. B. Judicial Review. Though administrative action is not deemed improper merel}' on the ground that notice and an opportunity to be heard are absolutely essential, the validit?y of orders issued or of action taken may be questioned in judicial proceedings of various kinds. Where theofficers have alreadyaccomplishcd their object by direct physical invasion of property, judicial redress is necessarily limited to a suit for damages. If, however, the administrative action con- sists only in a threatened invasion or in an order to the owner to take action himself, the courts are open to receive his motion for a bill of injunction. If under the statute the administration sues for the ex- 2' Lawton v. Steele, 119 N. Y. 226 (iSqo). Contra, Icck v. -Vndcrson, 57 Cal. 251 (1881). " Lawton v. Steele, 152 U. S. 133 (1894). 2' Dunn V. Burleigh, 62 Me. 24 (1873). " Colon V. Lisk, 153 N. Y. 188 (1897). ^ King j;. Daveniiurt, 98 111. 305 (18S1); I line v. New Haven, 40 Conn. 478 (1873); Baumgarten v. Hasty, loo Ind. 575 (1885). ''" Eichenlaub v. St. Joseph, 113 Mo. 395 (1892). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 339 pense of executing its order after its non-observance by the owner, his defense may question the propriety of the steps taken. And the same privilege obtains where the administration itself calls upon the court for aid in enforcing its decree, or to punish the owner for disobedience. In all these instances, the possibility of raising the question is manifest. The problem is to discover what respect the courts will pay to the expressed opinion of the administration. How far will they annul or revise the administrative requirements? The language of some opinions has seemed to indicate that the courts will not question the administrative determination that cer- tain conditions constitute a nuisance.^^ But against any possible contention of such finality or conclusiveness stands the well-nigh 2^ In Kennedy v. Board of Health, 2 Pa. St. 366 (1845), the court excluded evidence as to the cause of a nuisance in an action for the expense of its abatement, and declared: "It is not easy to perceive the relevancy of such evidence, unless it was intended to show by it, that there was in reality no nuisance to be removed. But this latter could not be proved, for the act of Assembly on the subject makes the order of the board conclusive, and expressly enacts that the fact of the nuisance shall not be inquired into. The board decided that the nuisance existed on the lot of the defendant, and the fact being so determined, it made no difference from what cause it arose." But in this case the owner did not deny the existence of the nuisance, but tendered his evidence to show that it was caused by others, who should bear the expense of abatement. In St. Louis V. Stern, 3 Mo. App. 48 (1876), a prosecution for failure to abate a nuisance, the court observed: "When the Legislature delegates to certain municipal agents a general power to provide for the preservation of the public health by the removal of nuisances, an adjudication by such agents upon the fact of a nuisance ex- isting within their local jurisdiction is conclusive." But the qualification was added: "At least, in every case, where the subject matter comes within the classifications of prima facie nuisances, and nuisances per se." In Green v. The Mayor, 6 Ga. i (1849), the court declined to review on certiorari the validity of an ordinance prohibiting the growing of rice, saying that the judgment of the Council upon the question of nuisance was "conclusive evidence of that fact." "Legislative bodies judge of the exigency upon which their laws are founded; and when they speak, their judgment is implied in the law itself." The language used is broad enough to forbid judicial review in whatever proceeding the question arises; but from subsequent decisions in the same jurisdiction, it is clear that the doctrine is not applied to proceedings other than those which seek to prevent the administration from executing its determination. Mayor v. Mitchell, 79 Ga. 807 (1887); Mayor v. Mulligan, 95 Ga. 323 (1S93); Western & Atlantic R. R. Co. v. Atlanta. 113 Ga. 537 (1901). Moreover, Green v. The Mayor is rested on the authority of Martin v. Mott, 12 Wheat. (U. S.) 19, which principle, says the court, " applies with greater force to the law-making power itself, than to any single officer of the Goveniment." But in Martin v. Mott the determination declared conclusive related to the necessity of calling forth the militia, the exercise of a high executive prerogative, with which the courts never interfere. 340 HARVARD LAW REVIEW. universal authority .^^ The decisions which overrule the objection that the administrative action was taken without granting an oppor- tunity to be heard insist that this ruling is possible only because the administrative determination cannot be conclusive upon the owner, and that a hearing on the disputed question may later be obtained in judicial proceedings.-^ But though the courts cling tenaciously to the right to rex-iew, they announce repeatedly that respect is due to the opinion of the administration. In Commonwealth v. Patch ^° the court declared that in the absence of evidence to the contrary, it would assume that the by-law prohibiting the keeping of swine in particular parts of the city was reasonable. Likewise, in an action to restrain the land- ing of persons infected with cholera, Judge Cullen declared that the question "is one resting in the discretion of the health ojficer, as is also the selection of an appropriate site for the landing; and in the absence of an abuse of discretion, his decision in tliis respect will not be interfered with by the courts." ^^ 28 In a bill to enjoin the destruction of a dock declared to be a nuisance, Mr. Justice Miller declared: "It is a doctrine not to be tolerated in tliis country that a municipal corporation, without any general laws either of the city or the state, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities." Yates v. IMilwaukec, lo Wall. (U. S.) 497 (1870). In Hutton v. Camden, 39 N. J. L. 122 (1876), the court held that it was error to ex- clude evidence of the condition of the premises in a suit by the board of health for the expense of abating what they had declared to be a nuisance. "The authority to decide when a nuisance exists, is an authority to find facts, to estimate their force, and to apply rules of law to the case thus made. . . . The finding of a sanitary committee, or of a municipal council, or of any ])ody of a similar kind, can have no effect whatever, for any purpose, upon the ultimate dispositii)n of matters of this kind. . . . The question of nuisance can conclusively be decided, for all legal uses, by the established courts of law or equity alone, and the resolutions of ofliccrs, or of boards organized by force of municipal charters, cannot, to any degree, control such decision." 2* "If tlie decisions of these boards were final and conclusive, even after a hear- ing, the citizen would in many cases, hold his property subject to I lie judj^quonts of men holding ei:)hemeral positions in municipal bodies and boards of health, frc(iuontIy uneducated and generally unfitted to discharge grave judicial functions. Boards of health under the acts referred to cannot, as to any existing state of facts, by their determination make that a nuisance which is not in fact a nuisance. . . . It is the actual existence of a nuisance which gives them jnrisdirtion to act." People t'. Board of Health, 142 N. Y. 1, supra. Cf. North .American Cold Storage Co. 11. Chicago, 211 U. S. 306, supra. '" 97 Mass. 221 (1867). '1 Young V. Flower, 22 N. Y. Supp. 332 (1893). But the declaration was qualified by ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 341 Where an owner has refused to avail himself of an opportunity to present before the administrative board his objections to their con- templated action, he may find himself subsequently precluded from questioning the reasonableness of the action taken. In Metropolitan Board of Health v. Heister ^^ suits by the board to recover penalties for the violation of their orders were joined with bills by the owner to restrain their enforcement. The prehminary order to desist from slaughtering was made without notice; but the board directed that it should not be executed until notice served and an opportunity to be heard. The owner declined to present his case before the board; and the court holds, without citation of authority, that "he cannot now complain that their judgment upon the facts is held to be con- clusive against him." ^^ Judicial review in the particular instance is obviously unnecessary when the thing prohibited falls within the class of prima facie nui- sances or nuisances per se,^'^ or when the question of the rightfulness of the administrative determination is already res adjudicata be- tween the parties.^^ There are indications that an administrative determination sanc- tioning an act will receive greater judicial respect than a finding of condemnation.^^ But no such doctrine prevails as a general princi- the assertion that the emergency must actually exist, of which the officer is not the sole judge, and that the act done must be fairly and reasonably appropriate for the emer- gency that has arisen. In another bill to enjoin the enforcement of a quarantine regulation, where the court found conflicting evidence as to the presence of the bubonic plague, it declared that although it was of the opinion that the plague did not exist in San Francisco, it felt that where there was the slightest doubt, the decision of the board should be sustained. Jew Ho V. Williamson, 103 Fed. 10 (1900). In sustaining an ordinance prohibiting further burial in cemeteries within the city limits, Mr. Justice Flolmes observed that the legislation should not be overthrown merely because the opinion of the court as to the realityof the danger from the prohibited act differs from that of those who passed the ordinance. Laurel Hill Cemetery v. Saa Francisco, 216 U. S. 358 (1910). 32 37 N. Y. 661 (186S). 33 The authority of the case is weakened by the fact that the court below, though it found for the owner, had determined as a fact that the business of slaughtering within the city was dangerous to health. The refusal to litigate the question before the board was based on the contention of their want of power over the subject matter. 3* St. Louis V. Stern, supra, p. 339. 35 Wheeler et al. v. City of Aberdeen et al., 87 Pac. 1061 (Wash. 1906). 3s White V. Kenney, 157 Mass. 12 (1892). In dismissing a bill to enjoin the erection of a stable for which a license to erect had been granted after a hearing by the board of health, the court excluded evidence as to the probable effect of the erection, saj-ing 342 HARVARD LAW REVIEW. pie. In Garrett v. State ^^ it is held that a board of health has no authority to license the manufacture of fertilizers in such a way as to create what the court deems a public nuisance; and in Pennsyl- vania R. R. Co. V. Angel ^® the company was restrained from con- ducting what the court declared to be a nuisance, although this use of its property was authorized by the legislature and was necessary to the conduct of its business.^^ The abatement of a nuisance is often no more of a deprivation to the owner than is its continuance to his neighbors. There seems no good reason why they should be denied the judicial hearing accorded to him. But a hcense would properly be a bar to a criminal prose- cution for conducting the alleged nuisance; and it seems that after express permission, the alleged nuisance can be abated only by judi- cial proceedings.'*^ Even where the court agrees with the administration that a nui- sance exists, they exercise the right to decide whether the abate- ment ordered or undertaken is proper and necessary.'*^ Where a court agreed with the board that a building condemned was unfit for habi- tation, it decHned to sanction the demoHtion ordered, in the absence of evidence that it could be made fit for habitation, and, even if that were estabhshed, unless it should appear that health was en- dangered by the existence and not merely the use of the building.''- And it has been held that a jury may on appeal from an order of a board of health prohibiting slaughtering on certain premises, permit the business to be carried on under such restrictions that the prem- ises will be at all times kept neat and clean, where it appears that this can be done.'*^ that the statute gave the determination of the question to the board of health, and imi)Iied that the courts could not restrain any erection authorized by them. " 49 N. J. L. 94 (i886). '*. 41 N. J. Eq. 316 (1886). This is obviously the proper rule where conditions have altered since the license was granted. Fcrliliziiig Co. v. Hyde Park, qj U. S. 659 (1S7S). If a city itself maintains what the courts decide to be a nuisance, it may be enjoined, Shreck v. Village of Coeur d'Alcne, 87 Pac. looi (Idaho, 1906); or held responsible in damages, Murray v. City of Butte, 35 Mont. 161 (1007). '" This position is also discussed at length in Cogswell v. New York, etc. R. R. Co., 103 N. Y. 10 (1886). " Everett v. Marquette, 53 Mich. 450 (1884). " Weil i;. Record, 24 N. J. Kq. 169 (1873); Raljcock 1;. BulTalo, 56 N. Y. 26S (1874) (injunction issued against filling up a canal, where nuisance could be abated by cleaning it out). *^ Health Department v. Dassori, 81 N. Y. St. Reporter (47 N. Y. Supp.) 641 (1897). ** Sawyer v. btatc Board of Health, 125 Mass. 182 (1878). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 343 The same doctrine prevails as to other exercises of the police power than the abatement of nuisances. The existence of condi- tions to be remedied is not in itself a justification for the action taken or ordered. In Jew Ho v. Williamson,'" where the court conceded the presence of the plague, it examined the provisions of the quar- antine regulations, and enjoined them as unreasonable and beyond the necessities of the situation.'*'' Similarly in the Trinity Church case,'*® where the statute directed the installation of water service in tenement houses, vesting in the administration discretion to deter- mine the extent of alteration, the court in its discussion laid down the boundaries within which the discretion might be exercised. The amount of expenditure required must be reasonable, and the improvement itself reasonable, considered with reference to the ob- ject to be attained, — of which the courts must within the proper limits be the judges. The opinion says also that no punishment or penalties could be enforced against the defendant without a trial in which he could show that he did not violate the statute or the order of the board, or that his house was not a tenement house within the provisions of the act. It would seem that both might also be shown in the suit to recover the expense of making the improvement; for the former would go to the question of reasonableness, and the latter to the jurisdiction of the board. In considering the exercise of judicial review we must distinguish between the power merely to annul, and the capacity to amend or revise. Where there is involved the validity of a regulation gen- eral in scope, whether the question arise in a suit for a penalty or for the expense of administrative enforcement, or in a bill to enforce compliance or to restrain execution, the court in disapproving of the regulation or of one of its separable provisions, must hmit itself to the declaration that it is null. It cannot make a new regulation. ^ Supra, p. 341. ^5 Not over nine persons were supposed to have died from the disease and no living persons were known to have contracted it. Yet the regulations isolated twelve blocks containing twelve thousand inhabitants, permitting free intercourse between all per- sons within the area, but forbidding all ingress or egress. Such regulations, thought the court, would tend to spread rather than to restrict the disease. A Chinese grocer complained because his trade was interfered with. An additional reason for granting the injunction was found in the fact that the regulations appeared to be enforced only against the Chinese. ^s Supra, p. 334- 344 HARVARD LAW REVIEW. It is subject to the same incapacity in all suits for a penalty, whether the order be general or special. Where, however, the order is special, relating only to an individual case, whether based on circumstances pecuHar to that case, or on the contention that it falls within some more general ruling, the court may enjoin or enforce it, either in whole or in part. If the suit is for the expense of administrative enforcement, the claim may be disallowed in whole or in part. An administrative order may be declared invalid either because the court deems it improper to vest so wide a discretion in an ad- ministrative body,^^ or because the action taken transcends the delegation. ^^ Nor will it necessarily save an administrative regula- tion to establish that the statutory warrant is manifest and that the power delegated is not legislative. For the courts maintain a firm control over the power even of the legislature to interfere with lib- erty and property under the guise of the poHce power. IMany decisions, therefore, which declare invalid an administrative reg- ulation or order, proceed upon grounds equally apphcable to the same provisions contained in legislative enactments.^^ The ground of invalidity usually alleged is that the order is un- reasonable. This may mean either that it would be an unwarranted interference by whomever exercised, or that the legislature did not mean to delegate authority to exercise power to this extent. The courts always assume that the legislature does not mean to dele- gate to an administrative body the power to do anything which in the opinion of the court is unreasonable. And they are more ready to predicate unreasonableness of the action of administrative bodies than of that of the legislature.''" " State ex rcl. Adams v. Burdge el ah., 95 Wis. 390 (1897). Here it was said that the provisions of the statute import and include an absohite delegation of the legislative power over the entire subject involved, and that the action of the board was legisla- tive and not administrative. •" Philadelphia v. Provident, etc. Trust Co., 132 Pa. St. 224 (iSqo); Wrcford v. People, 14 Mich. 41 (1865). " State V. Speyer, 67 Vt. 502 (1895); Ex parte O'Leary, 65 Miss. 80 (1887). *" This is best illustrated by comparing the attitude of courts towards provisions in statutes with that towarrls similar i)rovisions in administratixe regulations, reciuiriug compulsory vaccination or excluding unvaccinated i)ui)ils from the public schools. The former requirement is sustained in statutes, Jacobson v. Massachusetts, 107 U. S. II (1904), anfl regulations passed by virtue of explicit statutory authority, Morris i'. Columbus, 102 Ga. 792 (1897); the latter, in statutes, .\bcol r. Clark, 84 Cal. 226 (1890), and regulations under similar specific statutory dclogation, Hissell v. Davison, 65 Conn. 183 (1894). In this case the court declined to luiUl tiic power conditioned upon the ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 345 An examination of the cases will demonstrate the impossibility of ascertaining the criteria of reasonableness. Of reasonableness as a test, Mr. Justice Hohnes has observed: "It may be said that the difference is only one of degree; most differences are when nicely analyzed. At any rate, difference of degree is one of the dis- tinctions by which the right of the legislature to exercise police power is determined. Some small hmitations of previously existing rights incident to property may be imposed for the sake of prevent- ing a manifest evil; larger ones could not be except by the exercise of the right of eminent domain." '^^ Though it is often said that the state in the exercise of the police power does not "take" property, but merely " regulates its use," ^^ the distinction seems somewhat refined. There would seem to be in all these "regulatings" which involve the payment of money or re- striction of action, a deprivation either of liberty or property. The problem is to discover whether it may be justified as a proper exer- cise of the police power. This the courts must solve without the aid of definitions in any constitution. They have themselves devel- oped the doctrine of the police power as an implied qualification or limitation of the Due Process clauses of our various constitutions, and are free to control its application as they will. The difficulty of securing an exact definition of the power may be appreciated, if not solved, by referring to a recent utterance from the Supreme Court: "All rights tend to declare themselves absolute to their logical ex- treme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, actual existence of an epidemic or on reasonable apprehension thereof, saying that the statute had imposed no such condition, and that there was no reason \vh\- it should be implied. But where the delegation in the statute is couched in such general terms as "to take action in the interest of the health and lives of the community," the adminis- trative regulations, though usually sustained in the presence of epidemic. Duffield v. School District, 162 Pa. St. 476 (1894), Blue v. Beach, 155 Ind. 121 (1900), arc in the absence of actual or threatened epidemic quite generally declared invalid because un- reasonable. Matthews v. Board of Education, 127 IMich. 531 (1901); State ex rcl. Adams v. Burdge et als., 95 Wis. 390 (1897); Potts v. Breen, 167 111. 67 (1897). ^^^lere the decision is not grounded on unreasonableness, the courts usually assert that the general power delegated should be construed as meaning to authorize action only in the presence of immediate danger. 51 Rideout v. Knox, 148 Mass. 368 (1889). 52 Health Department v. Trinity Church, supra, p. 334. 346 HARVARD LAW REVIEW. and which become strong enough to hold their own when a certain point is reached. The Hmits set to property by other public interests present themselves as a branch of what is called the poUce power of the state. The boundary at which the conflicting interests balance cannot be deter- mined by any general formula in advance, but points along the Hne, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side. ... It constantly is necessary to reconcile and adjust different constitutional principles, each of which would be entitled to possession of the disputed ground but for the presence of the others." ^ In another recent opinion the same jurist observes: "And yet again the extent to which legislation may modify and re- strict the uses of property consistently with the constitution is not a question for pure abstract theory alone. Tradition and the habits of a community count for more than logic." ^ "In the long run," says Professor Seligman, "the economic in- terests of a community must prevail; for law is nothing but the crystallization of economic and social imperatives." '•''" We shall be aided then more by the method of enumeration than of definition. Whether or not the "Supreme Court follows the elbction returns," as one of our sagacious humorists avers, it is beyond dis- pute that popular feeling on matters relating to the conflicting interests of the individual and the group to which he belongs, exerts a potent influence upon the chosen arbiters of constitu- tional questions. Any attempt, therefore, to forecast the decisions of the future limiting the extent of interference to be pennitted as an exercise of the police power, must recognize that the courts will be governed more by the currents of public opinion than by the store of ancient precedents. Thomas Rccd Powell. Burlington, Vt. [To be continued.] " Mr. Justice Holmes, in Hudson County Water Co. v. McCarter, 209 U. S. 349 (1908). " Laurel Iliil Cemetery v. San Francisco, 216 U. S. 358 (1910). » 25 Pol. Sci. Quar., 217. ADMINISTRATIVE EXERCISE OF THE POLICE POWER. [Concluded.] III. Judicial Review in Actions for Damages. "\^7"HENEVER administrative action in the exercise of the poHce power takes the form of the issue of an order to an individual, he may by prompt petition to the courts secure a judicial ruhng as to the validity of the administrative command. The same possibihty of rehef is open to him when he complains that the administration denies him permission to take some action for which its consent is necessary under the law. But other methods of administrative procedure may be so summary that an action for damages affords the only possible means of rehef. And wherever loss has actually accrued through administrative action, money compensation is essential to complete redress for any official wrong, A. Liability of Public Corporations. (i) The State. — No action can be maintained against the state without its consent. Even where a statute creates a court of claims with jurisdiction over demands against the state, it is held that the state is not made a debtor by the unauthorized acts of offipers in destroying what is not in fact a nuisance.^ In a case where the court dechned to interfere with commissioners in appraising the value of diseased cattle killed, to determine the compensation due from the state under the statute, it was declared that if healthy cattle were killed, the state was not responsible.^ (2) Municipalities. — INIunicipal corporations are not immune from the process of the courts; but, by the great weight of author- ity, no action lies against a municipahty for the wrongful acts of 1 Houston V. The State, 98 Wis. 481 (1898). 2 Shipman v. State Live Stock Commission, 115 Mich. 488 (1898). 442 HARVARD LAW REVIEW. its officers in executing poKce ordinances.^ The decisions are based upon the grounds that the poHce officers, though chosen by the city, are not servants of the municipahty, but general officers,^ and also that the city is exercising the police power, not for its benefit or interest in its corporate capacity, but for the public good.^ No liabihty can be enforced for mere wrongful refusal to issue a hcense,^ or wrongful revocation of a Hcense.^ But in some jurisdictions municipahties are held Uable for the positive tres- passes of their officers in enforcing police measures.^ Such Habihty is sometimes imposed directly by statute. The question whether property destroyed was in fact a nuisance presents itself for judicial cognizance also in suits under statutes making a city or county Uable for damages done by mobs.^ B. Liability of Officers. (i) Denial of Permission. — No action can be maintained against an officer personally for his failure to take action in enforcing the police power,^° or for his refusal to extend permission to do some act for which a Hcense is required. In an early New York decision, where action was brought against an inspector-general of provisions ' Hand v. Philadelphia, 8 Pa. Co. Ct. Rep. 213 (1890), city held not liable for act of health officer in removing to a pest-house a person not in fact infected with small- po.x. Plaintiff had already recovered damages from the ollicer personally; but the case does not appear to have been appealed to a higher court. Evans v. City of Kankakee, 231 111. 223 (1907), city not liable for negligent fumigation of city cala- boose by its officers. * Bceks V. Dickinson County, 131 Iowa 244 (1906); Valentine v. Englewood, 76 N. J. L. 509 (1908). •* Boehm & Loeber v. Baltimore, 61 Md. 259 (1884); Gilboy v. City of Detroit, 115 Mich. 121 (1897). Butler V. City of Moberly, 131 Mo. App. 172 (1908). ^ Claussen v. City of Luvcrne, 103 Minn. 491 (1908). * Mayor v. Mitchell, 79 Ga. 807 (1887). In Fauchoux v. To^vn of St. Martin- ville, 45 So. 600 (La. 1908), it was held error to dismiss action against town for de- struction of plaintiff's house by order of the corporation and mayor, because the town is primd-facie liable and has the burden ta prove that Uie acts of its agents arc wholly ultra vires. Cf. Sumner v. Philadelphia, Fed. Cas. 13, 611 (1S73), where city was held liable for wrongful detention of vessel for c|uaranline. " Kly V. Board of Supervisors, 36 N. Y. 297 (1867); Brightman v. Bristol, 65 Mc. 426 (1876). '" Wliidden v. Cheever, 44 y\tl. 908 (N. II. 1897), not liable to landlord for refusal to order small-po.\ tenant transferred to a pest-house. ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 443 for condemning certain beef as unmerchantable, Judge Livingston declared that "an officer, acting under a commission from government, who is en- joined by law to the performance of certain things, if in his judgment or opinion the requisites therein mentioned have been complied with, ... is not answerable to a party, who may conceive himself aggrieved for an omission arising from mistake or mere want of skill." ^^ And a half century later the California court, in holding that the power of the board of pilot commissioners was quasi-judicial and that they were not civilly answerable for denying a license, an- nounced that "whenever, from the necessit}^ of the case, the law is obliged to trust to the sound judgment and discretion of an officer, public policy demands that he be protected from the con- sequences of an erroneous judgment." ^^ But an officer may be held responsible for libel or slander in connection with his dis- approval of goods inspected.^^ Actions for damages, however, are usually based not on non-feas- ance, but on some positive action which results in actual interference with person or property. But the personal liability of those who exercise governmental authority does not follow of necessity from the fact that in other proceedings their action might be modified or annulled by the courts. A legislator may vote for an unconstitu- tional statute, an inferior judicial officer may issue a decree which a higher court will later reverse, and yet neither be responsible in damages to individuals aggrieved. (2) General Regulations. — The issue of general regulations by an administrative body is so akin to the exercise of legislative power, that those who issue the regulation are not personally responsible merely for having cast their vote.^"* Few would venture to exercise the discretion vested, at the risk of being called upon to justify their action in a thousand suits for damages. But the immiunity given to those w^ho issue the regulation does not leave the individual without remedy. A regulation which the " Seaman v. Patten, 2 Caines N. Y. Term Rep. 312 (1805). 12 Do^vner v. Lent, 6 Cal. 94 (1856). " Hubbard v. AlIe>Ti, 200 Mass. 166 (1908). " Jones V. Loving, 55 Miss. 109 (1877); Baker v. State, 27 Ind. 485 (1S67), semble. 444 HARVARD LAW REVIEW. courts deem improper furnishes no protection to inferior officials who execute it.^"" (3) Special Orders and Adjudications. — Where the administra- tive order relates to an individual instance, the function performed is similar to that commonly entrusted to the courts. For every special order, whether based on conditions peculiar to the indi- vidual instance or common to the general class to which it belongs, involves the determination that the concrete case falls within some general rule. Shall the officers who exercise this power receive the immunity accorded to the judiciary?. The rule in favor of judicial officers is deemed necessary to pro- tect them in the impartial performance of their duties, that they may render the decision they deem just and necessary, without fear of the consequences. It is urged that the same considerations apply to administrative officers in the exercise of what are often termed quasi-judicial functions. In dismissing a suit against a meat inspector for the destruction of fish which the plaintiff alleged were not in fact unwholesome, the court said that the "powers conferred are plainly and clearly judicial. . . . The officer exercising such a power is within the protection of that principle, that a judicial officer is not responsible in an action for damages to an}- one for any judgment he may render, however erroneously, negligcnlly, ignorantly, corruptly, or maliciously he may act in rendering it, if he act within his jurisdiction." ^^ In a similar case against an officer for killing a horse which the lower court had found was not in fact afflicted with glanders, Judge Devens declared that the decision of the officer should nevertheless "be held conclusive, in order that the community may be pro- tected, and that those entrusted with the execution of the law may safely assume the responsibilities imposed upon them." ^'^ But this was in a dissenting opinion. And the former case has been overruled.^^ So that the broad doctrine enunciated is not law. "• Lit lie V. Harrcmc, 3 Cranch (U. S.) 170 (1804); Tracy v. Swartwout, 10 Pet. (U. S.) 80 (1836). »» Filth V. Koi-piK'l, 72 Wis. 280 (18S8). " Miller v. llorlon, 152 Mass. 540 (i8gi), infra, p. 448. " Lowe V. Conroy, 120 Wis. 151 (1904). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 445 In considering the liability of officers for the execution of their own decrees, a distinction is to be noted between two methods of administrative enforcement. It may be direct and immediate, without notice to persons affected, or else conditioned on non- compliance by the individual with some order specifically brought to his attention. In the former case, an action for damages affords the only access to the courts; in the latter, upon receipt of the order, a bill may be filed to restrain its execution. A denial of the injunction after a hearing settles the question of the characteristics of the property, and the doctrine of res adjudicata prevents the owner from offering evidence as to its condition in an action for damages against the officer. ^^ Where the owner neglects either to comply with the order or to file a bill to enjoin its enforcement, there are cases which on their facts sustain the proposition that in a subsequent action for damages, he cannot question the correctness of the administrative finding of fact on which the order and its execution are based. In Van Wormer v. The Mayor ^° the board of health tore down the house of the plaintiff after he had disregarded their order of removal. In the subsequent suit for damages it was held that evidence to show that there was in fact no nuisance was properly rejected, as that point "had been adjudicated by the proper tribunal, and was not in issue at the circuit." In Raymond v. Fish -^ the owner failed to remove certain brush as ordered, and it was destroyed by the board. Judgment was given in their favor, although the trial court had found expressly that the property destroyed was not the origin or a producing cause of disease. There is thus authority which tends to establish that where administrative execution is merely a substitute for action required of the owner, a suit for damages against those who issue the order is not the proper proceeding in which to question the existence of the facts on which it is based. These decisions were based on broader grounds than that the plaintiff was barred by his faihire to seek judicial relief in the interim between the receipt of the order and the invasion of his property." But we may question " Wheeler et al. v. City of Aberdeen et al., 87 Pac. 1061 (Wash. 1906). But it was held error to dismiss the action, since it was open to the plaintiffs to show that the defendants had acted wantonly and beyond the necessities of the situation. 20 15 Wend. (N. Y.) 262 (1836). 21 SI Conn. 80 (1883). ^ See infra, p. 451. 44^ HARVARD LAW REVIEW. the broader principles enunciated, and yet sustain the decrees on the doctrine suggested. For it would seem a salutary rule wliich requires the owner to seek the aid of the courts before the mischief is done, and while the property is still in existence as a source of evidence, or else to be bound by the administrative determination. This affords to the officer the protection essential to efficient exe- cution of the law, and withholds judicial rehef from the owner only by reason of his prior laches. Some have sought to sustain Raymond v. Fish and Van Wormer V. The Mayor, not on the ground that there was opportunity for a judicial hearing at some prior time, but on the theory that the owner's rights were adequately protected because he had been accorded a hearing before the administration.-^ In Van Wormer V. The Mayor the court seems to assume that under the statute a hearing was necessary, and finds that the statute had been sub- stantially though not technically complied with. But in Raymond V. Fish no hearing seems to be necessary from such portions of the statute as are quoted in the opinion; and no mention of such neces- sity appears in the discussion of the court. And from the statement of facts it appeared that no hearing had been accorded as to the issue of the particular order of whose enforcement the plaintiff complained.-^ But the granting of a hearing before the issue of the order would seem to be immaterial, if the basis for denying judicial review in the action for damages is the prior opportunity to be heard in judicial proceedings before the order is carried into effect. (4) Administrative Execution. — Such opportunity is of course foreclosed by execution not preceded by notice to the owner to take action himself. The question in such cases is squarely pre- sented: is a judicial hearing necessary ? No such requirement exists in respect to the accuracy of administrative ascertainments of value for purposes of taxation. Assessors are accorded the same immunity enjoyed by judicial officers. But in consiilering the analogy between judicial and administrative action, it is to be noted that in judicial proceedings due process inexorably requires notice and an opportunity to be heard. These are also prerequisite to the findings of assessors. But in the exercise of the police power, ^ See infra, p. 451 ct seq. ^ See in/ra, p. 452. ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 447 notice and a hearing before the administration are often not essen- tial. In such instances the analogy fails. (a) In absence of opportunity to be heard. — The law is clear, there- fore, that when a hearing has been impossible before either the administration or the courts, the officer who has destroyed property must establish in the suit for damages that it possessed the char- acteristics which he claims to have found, and that its condition justified his action.-^ In Lowe v. Conroy^® the Wisconsin court conceded the general principle announced previously in Fath v. Koeppel,-^ but added: "The facts show that the respondent's private property rights have been unjustly invaded and that he is remediless in law unless those who did the trespass are liable. Under such circumstances the rule applies that even quasi- judicial ofhcers may be subject to a personal liabiUty, since the discretion in which such officers are protected must be limited to the line where their acts invade the private property rights of another, for which the law affords no redress other than an action against the one actually committing the trespass." In Pearson v. Zehr ^^ the court received the evidence of farmers and others not veterinarians, and sustained a judgment against members of the Board of Live Stock Commissioners for killing horses which the jury found did not in fact have glanders, saying that unless the fact of glanders exists, the slaughter is done without authority of law, although the board acted in good faith, had reasonable grounds for their belief, and had made an honest and careful investigation. Thus it would seem that the opinions of experts may be out- weighed by the conclusions of the untrained, and that those who endeavor honestly and carefully to perform the duties entrusted to them by law to protect the community against danger may be subject to the findings of a jury with respect to matters frequently arousing popular passion and prejudice hostile to the enforcement of the law.-^ 25 North American Cold Storage Co. v. Chicago, infra, p. 449; Miller v. Horton, infra, p. 448. 26 120 Wis. 151 (1904). " Supra, p. 444- ^* 138 HI- 48 (1891). 29 The hardships of such a rule and the consequent danger of lax and ineffective administration are mitigated in manj' jurisdictions by statutes placing on the public treasury the burden of the expense, in some instances even where the property de- stroyed is admittedly noxious. 448 HARVARD LAW REVIEW. The cases are based on two grounds: the limited jurisdiction vested in the administration; and the impossibility of interfering with property unless the owner has somehow, somewhere, the opportunity to offer evidence as to its condition. The rule is universal that officers are personally hable for acts in excess of jurisdiction. The difficulty lies in ascertaining the jurisdictionary fact: fish, or unwholesome fish; horses, or horses with glanders. The cases have arisen in the absence of express statutory provision that the finding of the board should be conclu- sive. In Pearson v. Zehr the court declared that unless the fact of glanders exists, the slaughter is done without authority of law. In Miller v. Horton^° the majority held that the statute gave no authority unless the horse in fact had glanders; and they pro- ceeded on the not unusual assumption that the fact is necessarily what is determined to be true in judicial proceedings. The minority, on the other hand, were of opinion that the intention of the legis- lature was that the right of any agent the commissioners might employ should rest, not on the fact that the animal was actually affected with glanders, but on the administrative finding and condemnation. This interpretation raises the question of constitutionality. The minority urged that the legislature might consider that self- protection required the immediate killing of all horses which a competent board deemed infected, whether they were so or not, and that innocent horses killed as a sacrifice to necessary self- protection need not be paid for. Judge Holmes answered vaguely enough that self-protection requires only what is actually neces- sary, and not all that may reasonably be believed to be necessary. But he added that on that point the court expressed no opinion, because in the actual case, actual necessity required onK" the destruction of infected horses, and that was all the legislature purported to authorize. His opinion was indicated, however, by the observation that "had the statute declared in i)lain terms, that sucli healthy animals us should be killed by mistake for diseused t)nes would not be paid for, we should deem it a serious question whether such provision could be upheld." "" 152 Mass. 540 (1891). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 449 Any possible dispute must be considered settled since the decla- ration of the Supreme Court that the statutes vesting power sum- marily to destroy food without giving the owner a chance to be heard as to its condition can be sustained only because the deter- mination of the officials and the action taken thereon does not bind the owner as to the quality of the article destroyed, and that it remains open for him in a subsequent suit against the officials to introduce evidence of the actual condition of the food.^^ It may therefore be taken as established that not even a statu- tory prohibition of judicial review would preclude the courts from examining the correctness of administrative findings in ex parte proceedings, where condemnation is followed by immediate and summary destruction. But judicial censorship is applied with less severity to determina- tions resulting only in some temporary restraint of personal hberty or some minor interference with property. An officer is not liable in damages for removing a person afflicted with leprosy to a pest- house, although such action exceeds the necessities of the situation and would be enjoined.^- It seems also that there would be no liabiHty for removing one to a pest-house where the s}TTiptoms were not in fact those of a contagious disease. In Brown v. Purdy ^^ it is said obiter: "If there was any case for his judgment, or any fact of appearance or symptom as to which a question of small-pox or not could arise, his determination was final as to the legality or propriety of removal." And in two recent cases, officers who confined to their homes and quarantined persons erroneously assumed to be afflicted with a contagious disease were held not personally liable in damages.^^ In the New Jersey decision there was invasion of property rights as well as of personal liberty, for the plaintiff complained of fumi- gation as well as restraint. In Miller v. Horton the minority argued from an earlier decision which held that the legislature might order all imported rags to be disinfected, not because all were infected, but because the " North American Cold Storage Co. f. Chicago, 211 U. S. 306 (190S). See 24 Harv L. Rev. 336. '- Kirk v. Wyman, 83 S. C. 372 (1909), semblc. 33 8 N. Y. St. Reporter 143 (1886). ^ Beeks v. Dickinson County el al., 131 Iowa 244 (1906); Valentine v. Englcwood, 76 N. J. L. 509 (1908), infra, p. 454- 29 450 HARVARD LAW REVIEW. danger was too great to permit of discrimination,^^ that it could make a similar order with respect to the killing of all horses which a respectable board should deem to be so infected. Judge Holmes answered by suggesting that there was an important distinction in degree at least, between regulating the precautions necessary to be taken in keeping property, and in ordering its destruction. And he had previously observed that difference of degree is one of the distinctions by w^hich the right to exercise police power is determined.^^ In other exercises of governmental power affecting property, the only administrative findings in ex parte proceedings held not sub- ject to review are those adjudged to relate, not to the taking of property,' but to the granting or denial of some privilege completely within the power of the government to confer or to withhold.^^ And in such instances there is usually opportunity to question the administrative decision in the courts and obtain rehef on such other grounds as may be open, before the official action has pro- duced irreparable injury. (b) After a hearing. — When the owner cannot offer his evidence before the administration, he may offer it in the courts. Some- where there must be a hearing. Frequently the administration grants a hearing. But the owner who is dissatisfied with its con- clusions from the evidence presented may prefer to submit the evidence to court and jury. Most statutes which permit summary execution without first giving the owner an opportunity to take action himself, provide also that the administrative decision may be reached upon inspec- tion without hearing testimony. For the necessity which pro- hibits postponement of execution after action has been determined upon, will usually forbid the delay involved in granting a hearing before reaching a decision. Conversely, the statutes which require a hearing before reaching a conclusion usually permit administra- tive execution only in default of action by the owner. So that the decisions in suits for damages which have been assumed to deny the right of judicial review of conclusions of fact reached by an *^ Train v. Boston Disinfecting Co., 144 Mass. 523 (1SS7). 31 Ridcout V. Knox, 148 Mass. 368 (18S9). " Buttficki V. Strunahan, 192 U. S. 470 (1904); Public Clearing House v. Coyne, 194 U. S. 497 (1904). ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 451 administrative body after a hearing are instances where notice to abate preceded the abatement of the administration. This point, however, has not been noted by the courts; and some of the principles declared are broad enough to apply to admin- istrative decisions executed without notice. With respect to ex parte determinations, the doctrine is clearly opposed to the over- whelming weight of authority. It remains to be inquired whether it obtains with respect to determinations reached after a hearing. Van Wormer v. The Mayor ^^ was not decided by the court of last resort, and the opinion cites no authorities. Its declaration that in an action of trespass evidence to show there was in fact no nuisance was properly rejected, must compete with a dictum of the Court of Appeals some skty years later to the effect that ''no decision of a board of health, eve7t if made on a hearing, can conclude the owner upon the question of nuisance." ^^ In Raymond v. Fish'^° the court propounded this question: "Does the statute confer upon the board of health the right to deter- mine conclusively in any case what are nuisances and sources of filth which endanger the health of the inhabitants, so that if they act in good faith and merely err in judgment, the statute will justify the act done although the property of a tliird party may be destroyed ? " The affirmative answer is deduced by the reasoning that since any private citizen may abate what is in fact a nuisance which does him harm, if the statute gives the officers no additional protection it accompHshes nothing by its enactment. It was held, therefore, that the statute meant to give the board power to decide the matter conclusively in the apparent necessities of the case.'*^ But the immunity accorded by the decision was confined to "seemingly extreme cases," where there is "reasonable ground to believe that immediate action is necessary" and "reasonable ground to believe the supposed nuisance to be one in fact." 38 Supra, p. 445. 33 Health Department v. Trinity Church, 145 N. Y. 32 (1895). See 24 H.\rv. L, Rev. 334. *" Supra, p. 445. ^. "The statute does not mean to destroy property which is not in fact a nuisance, but who shall decide whether it is so? All legal investigations require time and cannot be thought of. If the board of health are to decide at their peril, they will not decide at all. ... It would seem absolutely necessary to confer upon some constituted body the power to decide the matter conclusively, and to do it summarily, in order to accom- plish the object the statute had in view. We think this has been done." 452 HARVARD LAW REVIEW. The decision does not purport to be based on the fact that a hearing was given. The discussion throughout the opinion is equally applicable to summary destruction without prior hearing. The positions taken seem squarely opposed to those advanced by the majority in Miller v. Horton.^ The decisions are to be dis- tinguished by the fact that in Raymond v. Fish the administrative execution was preceded by notice, rather than that before reach- ing the determination on which the execution was based a hearing was there accorded which was absent in Miller v. Horton. For the only hearing in Raymond v. Fish was on July i6 with respect to an order issued on August 15, and rescinded on August 24. On December 8 the board took up the matter again and voted to require owners to remove their brush before December 25. But plaintiff had no notice of this contemplated action and no knowl- edge of it until four days after it was taken. After September i the malady ceased to be epidemic; so that the owner, if granted a hearing as to the issue of the second order, would doubtless have urged other considerations than those presented five months pre- viously. In Miller v. Horton the plaintiff knew of the examination of his horses, and notified those who came to kill them that sur- geons employed by him had found no trace of glanders or other disease; whereupon action was postponed until after further con- sultation with the commissioners. But in that case the court looked not at what was actually done, but at what would have been permitted under the statute. So far as appears from such portions of the statute as are set forth in the opinion of Raymond V. Fish, the board, though required to notify the owner to abate within some time set, was not obHged to give him any opportunity to be heard before the issue of the order. In assessing property for taxation, a hearing must be given not as a matter of grace or favor, but must be a right secured by the statute." , ^ Supra, p. 448. *^ Stuart V. Palmer, 74 N. Y. 183 (1873). This case is cited in a dictum in People *. Board of HeaUh, 142 N. Y. i (1893), to show that the same rule appHes to exer- cises of the police power. The court observes that before a final and conclusive deter- mination could be made as to the existence of a nuisance, " the party proceeded aj^ainst must have a hearing not as a matter of favor, but as a matter of ri>:;ht, and the rif;ht to a hearing must be found in the act." The intimation that under such circum- stances the administrative fiat could not be ciuestioned, contrasts strangely with another observation in the same opinion to the eiTect that "if the decisions of these boards were final and conclusive, even after a fwarins, the citizen would in many cases ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 453 The only authority cited in Raymond v. Fish for the point de- cided is a dictum in Salem v. Eastern R. R. Co.,^ which suggested that though the determination is not conclusive in an action against the owner for the expense of abatement, the board to whom the determination was confided are protected by it and may safely rely upon its vahdity for their defense. But that case related to the alteration and improvement of property, not to its destruction; the statute under which the board acted made no provision for notice and hearing; and in Miller v. Horton, a later decision of the same court, the dictum was expressly disapproved/^ In Raymond v. Fish the constitutionality of the interpretation put upon the statute is asserted rather than discussed. In speaking of the common-law right of one assailed to kill in self-defense, though the apparent necessity is not an actual one, the court queries : "If Hfe may be protected by destroying life, when apparently necessary but not so in fact, may not life be protected by destroying property when apparently necessary though afterwards discovered not so in fact?" This analogy seems hardly apposite. No health officer is put on trial for his Hfe for murdering a horse or for destroying brush. The apparent necessity which in prosecutions for homicide re- lieves the slayer from criminal responsibility might not be deemed sufficient to excuse him from paying damages to the estate of the deceased for his error of judgment. The reasoning employed in Beeks v. Dickinson County et al.,^ which held a health officer immune from Habihty for having quar- antined a person not in fact infected with a contagious disease, is likewise unsatisfactory. The court says: hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions." See 24 Harv. L. Rev. 340. « 98 Mass. 431 (1868). « Judge Holmes says: "The remark is obiter, and it is doubtful perhaps, on reading the whole case, whether it means that the determination would protect them in an action for damages, where the statute provides no compensation for property taken which is not in fact a nuisance. To give it such effect as a judgment merely would be inconsistent with the point decided and with Brigham v. Fayerweather, 140 Mass. II." 46 131 Iowa 244 (1906), supra, p. 449. 454 HARVARD LAW REVIEW. "It is the modern tendency of judicial opinion to hold that the public health is the highest law of the land. . . . This board of health was the creation of the statute and its paramount duty was to protect the public health; its duty then, was to the public and not to any indi- vidual member thereof, except to act honestly and without design to injure him. If a health officer fails to do his duty, no indi\ddual may complain, for the duty is public and the officer is not charged with any individual duty to any particular person. If there be no liability for an omission of public duty, it would seem to follow without question that an erroneous performance should not subject the officer to personal liability. It may, it is true, cause an injury to the indi\adual, but it is not a wrong because the officer owes the individual no duty beyond what we have already stated." *'' But the court blinds its eyes to the wide distinction between the absence of a positive duty to an individual with respect to some service that may be claimed only by the public, and the absence of the negative duty owed to all individuals by all individuals, whether private citizens or officers, not to invade legally pro- tected rights. But though present authority may not sustain the proposition that finality is to be accorded to administrative decisions whether certain property is obnoxious to the police power, the courts are tending towards sustaining legislative declarations to that effect. In Valentine v. Englewood ^^ the statute, as quoted in the opinion, provided that "no suits should be maintained against the board or its agents to recover damages for proceedings to abate and remove a cause of disease, unless it should be shown that the cause of disease did not exist, was not hazardous or prejudicial to the public health, and that the board acted without reasonable and probable cause to believe that such cause was in fact prejudicial and haz- " The opinion puts strongly ihc arKumcnt of pi;Mic necessity: "It is unfortunate that any individual sliould suffer loss because of a mistake as to the existence of a dangerous disease, and yet the welfare of the i)ul)lii' is of such paramount imiiortance that a rule should not be established which will have the necessary elTect of increas- ing the luiblic danger. If health olTicers, acting in perfect good faith and as their judgment dictates, arc held lial)lc for a mistake in judgment, the elTect upon the I)iil)lic liealtii cannot lie doubted. ... if civil Iial)ility is to l)e imimsed liecausc of a f|uarantine wlii( h is later proved unnecessary, the danger to the i)ublic will be greatly enhanced, and the elTeclivencss of the statute greatly imi)aired. We do not feel like announcing such a rule, nor do wc believe justice to the individual requires it." " 76 N. J. L. 509 (1908). ^ ADMINISTRATIVE EXERCISE OF TEE POLICE POWER. 455 ardous to the public health." The language is susceptible of two interpretations. It might be argued that it indicates a distinction between the existence of a source of disease and the possibility of hazard from such source. A swamp with typhoid germs might be deemed a source of disease, and yet be so situated that it was not in fact hazardous. It would follow, then, that since the statute relates reasonable cause, not to the beHef in the existence of the source of disease, but to the belief in the possibihty of hazard, it means to allow suit even where a source of disease exists, if the plaintiff can establish "that the board acted without reasonable and probable cause to beheve such cause was in fact prejudicial and hazardous to the pubHc health." On the other hand, it may be urged that since the purpose of the statute was to limit, not to vest a right of action, and its language in specifying exceptions to the limitation on the right to sue is cumulative and not in the alternative, that it means to condition the right of the plaintiff not only on showing that no source of disease existed, but on establishing further that the board had no reasonable grounds to believe that the alleged source was in fact hazardous. Where the alleged source, if it existed, was necessarily hazardous, this would require him to show the absence of reasonable grounds for believ- ing that the alleged source was one in fact. In the case before the court, if any cause of disease existed, it was necessarily hazardous. Damages were sought for quarantin- ing the plaintiff on the mistaken assumption that his daughter had scarlet fever. The trial judge had nonsuited the plaintiff, and the higher court conceded that his ruling could not be vindi- cated if the actual existence of the disease was essential to the justification of the defendants. The issue joined upon the plead- ings was only whether there was reasonable and probable cause to believe that the symptoms were those of the disease, but the court said: "It would be taking too narrow a view of the case to decide it upon this question of pleading only. We prefer to rest the deci- sion on broader grounds." Without analysis the statute was inter- preted as follows: "What our legislature has done in the Health Act is in substance to say that anything which may possibly be a cause of disease is subject to the regulations of the board of health, when that board has reasonable cause to believe that it is in fact a cause of disease. . . . The legislature has 456 HARVARD LAW REVIEW. itself undertaken in effect to make a nuisance of what the board of health shall, upon reasonable and probable cause, determine to be a cause of disease." The statute thus construed was held to distinguish the case at bar from Miller v. Horton,^^ Lowe v. Conroy,^° and Pearson v. Zehr.^^ Its constitutionality was sustained on the analogy of Train V. Boston Disinfecting Co.,^- and the general principles of public welfare and necessity. After referring to decisions sustaining statutes requiring an eight-hour law for laborers, compelling vac- cination, and declaring places where liquors are sold to be nuisances, the opinion says: "These cases are but illustrations of the extent to which the highest tribunal has gone in vindication of the principle that the indi\-idual must yield somewhat of his personal rights to society in return for the benefits of society which he enjoys. We think it not unreasonable to require him in a case like the present to depend for redress upon the sense of justice of the public, rather than upon the right of action against public officers who have acted, as they thought, for the public weal in a matter of public duty." Though the court distinguishes the case at bar from Miller v. Horton''^ by reason of the statute, it disagrees with the doctrine of the Massachusetts court that in the absence of any statute the board has no jurisdiction unless a cause of disease actually exists. It is said to be enough if the matter is colorably, though not really within their jurisdiction. With telling force Judge Swayze points out that Miller v. Horton and similar cases cannot be distinguished on the ground of excess of jurisdiction from the many instances in other exercises of governmental power, where administrative officials are held exempt from suit when called upon to act judicially. "If a postmaster-general, or a postmaster or a collector of a port, or an assessor of taxes are to be immune when their error of judgnTcnt causes the loss of another's liberty or ]-)r()perty, we think a board of health is entitled to a like immunity. A justice of the jicace is immune if he acts in a matter coloral)ly wilhiu his jurisdictitm. Tlic umUTlying reason is not the judicial character of the ofllcer, but the jiulicial char- acter of the act, and the public necessity that public agents engaged in " Supra, p. 448. " Si(f)ra, p. 447. " Supra, p. 447. ^ Supra, p. 450. " Supra, p. 448. ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 457 the performance of a public duty in obedience to the command of a statute, should not suffer personally for an error of judgment which the wisest and most circumspect cannot avoid." It seems clear from the discussion in the opinion that the court would not have decided differently, had there been no statute limiting the right of action. For, in the endeavor to establish that the statute authorizing summary procedure and yet conferring immunity proffers due process of law under the Fourteenth Amend- ment, it says that due process does not always require notice and a hearing, and adds: "Where the board of health is required to act upon an emergency, due process of law reqmres only that they should be liable to an action in case they act wrongfully; but the action to which they are liable is only such action as the law gives. In this case, the common law, as we have already shown, gave no right of action if the matter upon which the board decided was colorably within its jurisdiction. The object of the Fourteenth Amendment was not to give the parties remedies which did not exist at common law, but to protect them against hostile action by the state depriving them of existing remedies." It seems to smack somewhat of casuistry to say that a statute purporting to limit a right of action does not do so; but merely enlarges the jurisdiction of an officer, and in another part* of the opinion to insist that the statute limiting the right of action dis- tinguishes the case at bar from the precedents where no such statute was present. Though the plaintiff in Valentine v. Englewood, as in Miller v. Horton, had been permitted to present the opinions of experts called by him before the board took its action, this was a matter of favor and not of right; and the court regards the action taken as though no hearing had been accorded. From this aspect it is hardly sound in saying that the statement of the Supreme Court that whether assessors shall be held liable for an unlawful assess- ment if within their jurisdiction is a matter of general municipal law and raises no federal question, is an authority for the propo- sition that a statute authorizing such exemption in a case like the one at bar does not contravene the Fourteenth Amendment. For the Supreme Court has indicated very clearly that a statute author- izing the summary destruction of property as a police measure 458 HARVARD LAW REVIEW. would be invalid under the Fourteenth Amendment, but for the fact that the owner could have a judicial determination as to its condition in an action for damages against the officer.^"* The statute in the present case can escape from the principle of that decision only because the invasion of Uberty and property is tem- porary and inconsequential when compared with the public danger to be averted. The opinion in Valentine v. Englewood, though given in a case involving only slight interference with property and personal hberty, where the consequences of excess of caution would be far more serious than those of excess of zeal, clearly points the way to an extension of the immunity hitherto accorded to administra- tive officials in taking measures to safeguard the pubHc health. The advancing trend of judicial opinion is gradually forsaking the individualistic doctrines ' underlying the precedents of an earlier generation, and demonstrating the truth of the maxim of ]\Ir. Justice Holmes in his lectures on The Common Law that the "Hfe of the law is not logic but experience," or affording illustration for the tenets of that school of philosophy which urges that the only sound logic is the logic of experience. The decrees of the courts, however, still lag behind the utter- ances of the opinions. The immunity of officials for acts done in enforciftg the poHce power cannot yet be said to be established ex- cept where the interference is with personal liberty rather than with property, or where the interference with property falls short of destruction, or is not executed until the individual has been given an opportunity to take action himself and thus enabled by prompt action to secure judicial relief in some other proceeding. But it may reasonably be expected that the immunity will some day be extended to cases where the individual has been able as a matter of right to urge before the administration his claims to freedom from interference. At present, however, the courts sccni still con- vinced that when property is destroyed in the exercise of the police power the owner must have somewhere in judicial proceedings the opportunity to offer evidence as to its condition. The Chan- cellor and the jury are regarded as best suited to determine finally the disputed question of fact. And thus indirectly the community is being forced to assume the burden of loss,"^ thereby relieving " North American Cold Storage Co. v. Chicago, 211 U. S. 306 (190S), supra, p. 449. " See supra, p. 447, note 29. ADMINISTRATIVE EXERCISE OF THE POLICE POWER. 459 both the owners who are without fault and the administrative authorities who may make mistakes in the honest endeavor to perform the duties entrusted to them by law. The same solution of the vexed problem is suggested by the courts in the instances where the burden is now placed on the owner rather than on the administrative official.^^ Judge Holmes, in Miller v. Horton, doubted the constitution- ality of a statute which should "declare in plain terms, that such healthy animials as should be killed by mistake for diseased ones, should not be paid for." Probably no statute would announce bluntly that an officer should not be liable for destroying property erroneously declared injurious, even after a hearing. But in some such language as that employed by the statute in Valentine v. Englewood it might accord finality to the determination of an expert body, in spite of the contrary finding of twelve other men who composed the jury in a suit for damages. Much confusion is due to the nebulous purport of the word fact. Judicial interpretation invariably identifies it with something de- termined to be true in judicial proceedings. A contrary notion sometimes prevails among those who suffer from the fmdings of blundering juries. The truth in these matters is not capable of absolute mathematical demonstration. We must accept as final the opinion of some designated fallible human beings. A jury is as prone to error as an expert body. In other exercises of governmental power, finality is accorded to administrative determinations based on the consideration of evi- dence submitted by those whose interests are involved. A tax paid on property actually worth twenty thousand dollars but erroneously valued at twice that amount cannot be recovered. The loss may be greater than the value of a horse or a steer. It is thought that the welfare of collective society is promoted by vesting the power of final decision in administrative officials. The rule may come in time to be applied to the exercise of the police power, whenever the courts conclude that this collective advantage outweighs the possible injury to individuals who insist that the administration has acted erroneously. Thomas Rccd Powell. Burlington, Vt. 66 Supra, p. 456. VITA Thomas Reed Powell was born in Richford, Vermont, April 29, 1880, received the degree of A.B. from the University of Vermont in 1900 and the degree of LL.B. from Harvard Uni- versity in 1904. He was admitted to the Vermont Bar in May, 1904, and during the two succeeding years was engaged in the practice of law in Burlington, Vermont. From 1906 to 1908 he was a student in the School of Political Science, Columbia Uni- versity, where he pursued the study of Administrative and Constitutional Law, Comparative Government, History and Political Theory under the direction of Professors Goodnow, Burgess, Dunning and Osgood. He has held the appointments of Lecturer in Public Law, Columbia University, 1907-1908, 191 1-191 2 ; Associate in Political Science, University of Illinois, 1908-1910; Honorary Fellow in Administrative Law, Columbia University, 1910-1912, and Associate in Law, Columbia University, 1912-1913. He has been a contributor to the Political Science Quarterly^ the Harvard Law Review, the Annals of the American Academy of Political and Social Science, the Columbia Law Revieiv, the Ameri- can Political Science Review, and the Journal of the American Institute of Criminal Law and Criminology. "£SK FROM WHICH BORROWED ^ ^ LOAN DEPT This book is due on fh« i T * , on theSt?to^LS'!,f -Pfd below, or Renewed books are subT^T "^^^^ wejub^ to immediate recall LD 21A-50m-4 'fin a05G2slO)47CB YC 09147 UC. BERKELEY LIBRARIES CQ0b075X72 (' S00822 i^^*'i-^.- "- ^ UNIVERSITY OF CALIFORNIA LIBRARY M h^ ^fumi^— . .