Davis, Kenneth C.

English

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Volume 45 Issue 4 Article 3 June 1939 A Final Word on the Doctrine of the Hodges Case Kenneth C. Davis West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Energy and Utilities Law Commons Recommended Citation Kenneth C. Davis, A Final Word on the Doctrine of the Hodges Case, 45 W. Va. L. Rev. (1939). Available at: https://researchrepository.wvu.edu/wvlr/vol45/iss4/3 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. A FINAL WORD ON THE DOCTRINE OF THEHODGES CASEKENNETH C. DAviS0Mr. Donley's reply to my article of last June is especiallywelcome because it again directs attention to a West Virginiaproblem which deserves more extensive recognition and because itcontributes to the discussion a point of view which is widely atvariance with that of the original article. The difference of opinionis so fundamental that Mr. Donley's substantial agreement withone of my conclusions may be of particular significance: that ifthe West Virginia court follows the interpretation given theseparation-of-powers clause in four recent cases, a large portionof all existing West Virginia legislation setting up administrativeagencies will be found unconstitutional.' Of course, I believe thatthe prospect of such wholesale invalidation of our laws on sup-posed constitutional grounds serves only to emphasize that thecourt's interpretation is unduly strict and that the recent decisionsshould be limited or overruled.Unlike Mr. Donley, I believe that the separation-of-powersclause should not be interpreted as if it were a provision of a con-tract or a deed. 2 I envy Mr. Donley's ability to classify all func-tions of government into three rigid categories; I do not havethat ability.3 But even if all governmental powers were easilyclassifiable, I could never agree that the principle of separationof powers, without more, is the proper tool for creating law*Associate Professor of Law, West Virginia University.I The four cases are Hodges v. Public Serv. Comm., 110 W. Va. 649, 159S. E. 834 (1931) ; Baker v. County Court, 112 W. Va. 406, 164 S. E. 515 (1932) ;Danielley v. City of Princeton, 113 W. Va. 252, 167 S. E. 620 (1933); Staud v.Sill, 114 W. Va. 208, 171 S. E. 428 (1933). Even Mr. Donley flatly disagreeswith the Baker case. Of six existing statutes I chose as examples (all ofwhich I believe to be unconstitutional if the court follows its four decisions,but all of which in my opinion should be upheld), Mr. Donley finds five un-constitutional, in whole or in part, if the court follows all four of its decisions,including the Baker case. See my discussion (1938) 44 W. VA. L. Q. 270,366-69.21 wonder whether Mr. Donley realizes that a literal interpretation of theseparation-of-powers clause would render invalid nearly every municipal charterin West Virginia.Compare Holmes, J., dissenting in Springer v. Philippine Islands, 277 U. S.189, 211, 48 S. Ct. 480, 72 L. Ed. 845 (1928): "It does not seem to need argu-ment to show that however we may disguise it by veiling words we do not andcannot carry put the distinction between legislative and executive action withmathematical precision and divide the branches into watertight compartments,were it ever so desirable to do so, which I am far from believing that it is, orthat the Constitution requires,"1Davis: A Final Word on the Doctrine of the Hodges CasePublished by The Research Repository @ WVU, 1939WEST VIRGINIA LAW QUARTERLYgoverning the extent of review of administrative action. In myview, the problem is intensely practical and cannot be solved byapplication of logic to abstractions. I believe that the extent ofreview should depend upon comparative qualifications of judgesand of administrators to decide each question-upon quality ofadministrative personnel, upon adequacy of procedural safeguardsand upon political susceptibilities of particular agencies, uponthe nature of the issues to be determined, upon specialization ofjudges and of administrators, and upon relative judicial and ad-ministrative biases.4But for Mr. Donley and me to argue about the substantivelaw involved is futile.' Our difference is much deeper. Indeed,Mr. Donley's underlying philosophy seems to me almost unbe-lievably extreme. He apparently thinks that principles of lawexist for their own sake. In one especially revealing sentence hesets forth the essence of his view: " . . . the statement that theanswers to twentieth century questions must be found in modernexperience . . . is a counsel of conscious intellectual hypocrisy.''6He even goes so far as to accuse Mr. Justice Holmes7 and Mr.Chief Justice Hughes" of this "conscious intellectual hypocrisy",for no better reason than the willingness of those judges to look4 Mr. Donley tries to shift the ground of the argument by making it appearthat I am favoring judicial review and that he is arguing for administrativefinality. He apparently fails to appreciate the distinction between advocatingjudicial review and advocating constitutionality of legislative provisions forjudicial review where the legislature, on grounds of policy which it finds suffi-cient, sees fit to permit or to require judicial review.The paradox is that anyone with Mr. Donley's general point of view shoulddeclare himself in favor of administrative finality.5 Because of such a fundamental cleavage between Mr. Donley's views andmine, I choose to ignore what I believe to be his misinterpretations and mis-understandings concerning numerous details. In the light of all his strictures,I would now change only one word of what I have written: Mr. Donleydeserves full credit for pointing out that in one place I erroneously said"circuit" court instead of "supreme" court.6 Page 299.7In criticising the "cult of modernity" for being "essentially hypo-critical", he says at p. 298: "It says one thing and does another. TheConstitution does not mean today what it meant yesterday, nor the day before.It shifts and changes under the sldllful manipulation of the skin-of-a-livingthought school of jurisprudence." The reference is to a statement of Mr..ustice Holmes in Towne v. Eisner, 245 U. S. 418, 425, 38 S. Ct. 158, 62L. Ed. 372 (1918): "A word is not a crystal, transparent and unchanged,it is the skin of a living thought and may vary greatly in color and contentaccording to the circumstances and the time in which it is used."8 In denouncing the opinion of the Chief Justice in Home Bldg. & LoanAss'n v. Blaisdell, 290 'U. S. 398, 54 S. Ct. 231, 78 L. Ed. 413 (1934) Mr.Donley uses even more caustic language. He says the opinion is "a neatexample of the judicial method of having your cake and eating it too", that2West Virginia Law Review, Vol. 45, Iss. 4 [1939], Art. 3https://researchrepository.wvu.edu/wvlr/vol45/iss4/3FINAL WORD ON THE HODGES CASEbeyond the printed word in interpreting the Constitution. Heseems to say that "bending" a principle in order to reach a de-sirable result is "dishonest ".10 In his view, the law is a closedsystem of logic wholly divorced from reality.1'To me, a mere summary of such views constitutes a refutation.True, similar notions may have been prevalent at one time in thehistory of the development of law. But I regard the Donley viewas a vestige of a false dogma, long rejected, especially in the realmof public law. Advocacy of logomachy "without regard to the re-sult reached" is the kind of lawyers' thought which does and shouldbring the legal profession into disrepute.Mr. Justice Holmes, in a passage with which I emphaticallyagree, summarizes the "hypocrisy" which Mr. Donley finds sorepulsive:" . . . when we are dealing with words that also are a con-stituent act, like the Constitution of the United States, we mustrealize that they have called into life a being the developmentof which could not have been foreseen completely by the mostgifted of its begetters. It was enough for them to realize orto hope that they had created an organism; it has taken theirsuccessors much sweat and blood to prove that they createda nation. The case before us must be considered in the lightof our whole experience and not merely in that of what wassaid a hundred years ago." 2the reasoning is circular, and that "Chief Justice Hughes' words were merelip-service: the high priest repeating the ritual which he did not follow inpractice." I think these epithets are unjustified.9 Before the Hodges case, the West Virginia court usually construed theseparation-of-powers clause liberally to make it workable. Thus, Judge Bran-non, in Mackin v. County Court, 38 W. Va. 338, 348-49, 18 S. E. 632 (1893)spoke of "facility", "necessity", "expediency", and "usefulness". Appar-ently Mr. Donley regards all such cases as "conscious intellectual hypocrisy".He makes no analysis of the decisions prior to the Hedges case but says flatlyof them (p. 303-4): ". . . previous interpretations were unsound and thequestion may be determined without reference to them."1 Mr. Donley's sentence is: "It is preferable that a principle of law behonestly nilsinterpreted or misapplied without regard to the result reached, thanthat an expedient result be had through a dishonest bending of the principle tojustify it." (p. 299).-Compare Cmozo, NATuRE OP THE JuDiOmI. PROCESS (1921) 46: "Themisuse of logic or philosophy begins when its method and its ends are treatedas supreme and final."12 Missouri v. Holland, 252 U. S. 416, 433, 40 S Ct. 382, 64 L. Ed. 641 (1920).3Davis: A Final Word on the Doctrine of the Hodges CasePublished by The Research Repository @ WVU, 1939

A Final Word on the Doctrine of the Hodges Case

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A Final Word on the Doctrine of the Hodges Case

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