Humphrey, G. Dudley, Jr.

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Administrative Law -- Constitutional Law -- Delegation of Nonjudicial Duties to the North Carolina Superior Courts

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NORTH CAROLINA LAW REVIEWVolume 38 | Number 3 Article 64-1-1960Administrative Law -- Constitutional Law --Delegation of Nonjudicial Duties to the NorthCarolina Superior CourtsG. Dudley Humphrey Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationG. D. Humphrey Jr., Administrative Law -- Constitutional Law -- Delegation of Nonjudicial Duties to the North Carolina Superior Courts, 38N.C. L. Rev. 380 (1960).Available at: http://scholarship.law.unc.edu/nclr/vol38/iss3/6NOTES AND COMMENTSAdministrative Law-Constitutional Law-Delegation of NonjudicialDuties to the North Carolina Superior CourtsMilk Commission v. Galloway1 inferentially raises a problem con-cerning the delegation of nonjudicial duties to the North CarolinaSuperior Courts. Galloway was a milk producer adversely affectedby an order issued after hearing by the Milk Commission fixing therates for hauling milk from producer to distributor in several counties.Galloway, who had received notice of the hearing, did not attend butappealed from the order to the superior court. Pursuant to the NorthCarolina Milk Commission Act,2 that court heard the matter de novoand issued its own rate order which conformed to the Commission'sorder.3 The North Carolina Supreme Court affirmed, holding the MilkCommission Act constitutional as applied.It is well settled, since the leading case of Nebbia v. New York,4that a state legislature in the exercise of the police power can regulatethe price of milk through an administrative board. The transportationrates in the principal case were an increment of the price of milk andthus within the area of regulation constitutionally granted to the MilkCommission.The court in the principal case stated that the appellant attacked thepower of the superior court to fix the transportation rates. An examina-tion of the record on appeal, however, reveals that appellant's argumentwas not based on the theory that the superior court was exercisingnonjudicial duties, but rather that the particular rates in question werenot authorized by the act. The court noted the appeal provision of theact,5 describing it as a "sedulous protection against abuse of power by theMilk Commission," and concluded, "[W] e hold that the Milk Commis-sion, and the Superior Court on appeal, had the power .. .to regulatea-:d to fix transportation rates"0 for the hauling of milk in North Caro-lina.1249 N.C. 658, 107 S.E.2d 631 (1959).2N.C. GEN. STAT. §§ 106-266.6 to -266.21 (Supp. 1959).3 Biltmore Dairies, distributor, had assigned its producers to routes served by itstrucks and charged the producers for transporting the milk from the farm to theplant according to the average cost per cwt. on each route. The costs varied fromabout seventeen cents per cwt. to about thirty-one cents per cwt. depending uponthe route. The average cost per cwt. for all milk transported was twenty-six cents.The orders of both the Commission and the court decreed that Biltmore in thefuture use the overall average cost per cwt. (here twenty-six cents) as the basis ofits hauling charge to the producers.4291 U.S. 502 (1934).N.C. GEN. STAT. § 106-266.17 (Supp. 1959).6249 N.C. at 667, 107 S.E.2d at 638. (Emphasis added.)1960] NOTES AND COMMENTS 381This language of the court points toward two interpretations of thefunction of the superior court: first, that it is to guard against the abuseof power by the Milk Commission, and second, that it may itself fixrates and otherwise regulate the milk industry. Guarding against theabuse of power by an administrative board is a traditional function ofthe courts.7 The fixing of rates is usually held not to be a judicial func-tion."A judicial inquiry investigates, declares, and enforces liabilitiesas they stand on present or past facts and under laws supposedalready to exist. That is its purpose and end. Legislation, onthe other hand, looks to the future and changes existing condi-tions by making a new rule to be applied thereafter to all or somepart of those subject to its power. The establishment of a rate isthe making of a rule for the future, and therefore is an act legis-lative not judicial in kind .... 9Nonjudicial duties in certain instances have been delegated to thecourts both directly and indirectly. An example of the direct grant ofnonjudicial duties to a court is found in State v. Hurber,10 where astatute that authorized courts of record in West Virginia to hear pro'-ceedings for the revocation of beer licenses was found to give the courtslegislative power and was declared unconstitutional. A direct imposi-tion of a nonjudicial function such as deciding whether a beer licenseshould be revoked is obvious enough. An indirect method of impositionwhere, as indicated by the principal case, the court's scope of reviewof administrative action is enlarged by statute is not so easily recognized.The Connecticut court, recognizing this latter type of imposition, haslimited the review of administrative action to the single question: "Didthe board act illegally ?""Several states whose constitutional provisions concerning the separa-tion of governmental powers are basically the same as those in the7 "The court has inherent authority to review the discretionary action of anyadministrative agency, whenever such action affects personal or property rights,upon a prima facie showing ... that such agency has acted arbitrarily, capriciously,or in disregard of law." In re Wright, 228 N.C. 584, 587, 46 S.E.2d 696, 698(1948). For a discussion of the function of the courts in reviewing administrativeaction see DAvis, ADmINIsTRATv LAW §§ 244-57 (1951).'But see People v. Willcox, 194 N.Y. 383, 87 N.E. 517 (1909), where ratefixing was held to be a judicial function.'Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (1908) (Holmes, J.).See also Administrative Procedure Act § 2(c), 60 Stat. 237 (1946), 5 U.S.C. § 1001(1958).10129 W. Va. 198, 40 S.E.2d 11 (1946).""On an appeal from an administrative board . . . the function of the courtis to determine whether or not it acted illegally .... Where upon an appeal thecourt hears evidence it is solely for the purpose of determining that question . .. ;even where a statute required that an appeal should be tried de novo, we heldthat the court should make an independent inquiry into the facts but only for thepurpose of exercising that function." Jaffe v. State Dep't of Health, 135 Conn.339, 353-54, 64 A.2d 330, 337-38 (1949).NORTH CAROLINA LAW REVIEWNorth Carolina Constitution have considered the problem of delegationof nonjudicial duties to the courts. There is a wide diversity of opinion,however, as to what duties may be delegated to state courts. In thefield of local government it has been held that courts may be empoweredto grant certificates of incorporation to municipalities,' 2 determine theexistence of facts which would warrant the creation of a water district,13erect and divide political subdivisions,' 4 and appoint persons to investi-gate county and municipal affairs.' 5 Whether the foregoing functionsmay be classified as judicial is seriously doubted. On the other hand,courts cannot be authorized to determine if the annexation of an areawas in the public interest or convenience,' 6 or to fix, within certain limits,the salaries of the court's medical officer, probation officer, and secre-tarial staff.'7 In the field of utility regulation it has been held that thecourts could not fix rates,'8 or otherwise regulate utilities;19 yet onedecision has intimated that courts can perform these duties.20 It isgenerally held that courts may not issue licenses for the operation of abusiness ;21 however, it was held constitutional for the lower Georgiacourts to grant liquor licenses.22When called upon to exercise a nonjudicial function, some courtshave felt constrained by the exigencies of the particular case to performthe inappropriate duty. For example, in In the Matter of Town ofChesapeake many towns had been incorporated by the West Virginiacircuit courts under a statute that authorized those courts to issue acertificate of incorporation upon the petitions of local citizens. Theappellate court recognized that the circuit courts were performingpatently nonjudicial duties; however, it upheld the statute on groundsof public policy to avoid rendering doubtful the legal existence of manytowns.In the Matter of Town of Chesapeake, 130 W. Va. 527, 45 S.E.2d 113 (1947).13Culley v. Pearl River Industrial Comm'n, 234 Miss. 788, 108 So. 2d 390(1959).1, In the Matter of Borough of Pottstown, 187 Pa. Super. 313, 144 A.2d 623(1958) (Court of Quarter Sessions had performed this function since the earliestdays of the Commonwealth.).' Massett Bldg. Co. v. Bennett, 4 N.J. 53, 71 A.2d 327 (1950).11 Ritche v. City of Brookhaven, 217 Miss. 860, 65 So. 2d 832 (1953).17 State ex rel. Richardson v. County Court of Kanawha County, 138 W. Va.885, 78 S.E.2d 569 (1953)." Public Serv. Comm'n v. City of Indianapolis, 235 Ind. 70, 131 N.E2d 308(1956).29 Iowa-Illinois Gas & Elec. Co. v. City of Fort Dodge, 248 Iowa 1201, 85N.W.2d 28 (1957).20 Florida Power Corp. v. Pinellas Util. Bd., 40 So. 2d 350 (Fla. 1949) (dic-tum)." Langen v. Badlands Co-op. State Grazing Dist., 125 Mont. 302, 234 P.2d 467(1951); Peterson v. Livestock Comm'n, 120 Mont. 140, 181 P.2d 152 (1947);State v. Hurber, 129 W. Va. 198, 40 S.E.2d 11 (1946).22 Carrol v. Wright, 131 Ga. 728, 63 S.E. 260 (1908).23130 W. Va. 527, 45 S.E.2d 113 (1947).[Vol. 38NOTES AND COMMENTSAnother factor has influenced courts which have accepted non-judicial duties. Under the doctrine of separation of powers a spirit ofco-operation must exist between the branches of government in orderfor the parts to function as a whole. At times, therefore, the courtshave acted as legislative agents. In New Jersey the court did s6 byappointing persons to investigate corruption at the local level. In hold-ing the delegation valid, the court stated,A legislative request . . . for the judiciary to act with respectto any particular subject matter is not to be lightly declined andsuch matters are to be passed upon . . . in the spirit of comitythat should prevail between the three branches of government. 24It is difficult to ascertain North Carolina's position on the per-formance of nonjudicial duties by its superior courts. The only casedirectly concerned with this point, In re Wright,25 held that the superiorcourt could conduct a trial de novo in reviewing the discretionarysuspension of a driver's license. The court recognized that the inherentauthority of the courts in reviewing administrative action26 had beenenlarged by the provision for this statutory appeal and found "thatthe Legislature had full authority to impose this additional jurisdictionupon the courts .... ,,27 Then the supreme court stated that thisjurisdiction did not constitute a delegation of legislative or administra-tive authority and that the superior court could not substitute its dis-cretion for that of the administrative body, thus implying that such adelegation would be invalid. The court held that discretion to revokewas not in the superior court which determined only whether the licensewas subject to revocation. If so, the superior court does not decidewhether or not to revoke but affirms the administrative determination.It is submitted that the Milk Comimssion Act, as interpreted in theprincipal case, may have unwittingly provided through the appellateprocess a procedure whereby nonjudicial functions are imposed on thesuperior courts. This cannot be reconciled with the constitutionalseparation of the legislative, executive, and judicial powers.28  Thesuperior courts are not the proper bodies for the regulation of an in-dustry in the first instance, and the function should not be assumedon appeal. Neither comity between the branches of government northe exigencies of regulating the price of milk require the impositionof such an inappropriate burden upon the crowded dockets of oursuperior courts. The General Assembly might well consider rewording"Massett Bldg. Co. v. Bennett, 4 N.J. 53, 61, 71 A.2d 327, 331 (1950).228 N.C. 584, 46 S.E.2d 696 (1948)."See note 7 supra.' 228 N.C. at 587, 46 S.E.2d at 698."N.C. CoNsr. art. I, § 8; art. II, § 1; art. III, § 1; art. IV, § 2.1960]NORTH CAROLINA LAW REVIEWthe appeal provision of the Milk Commission Act 29 to prevent such anoccurrence. The appeal provisions of the Virginia Milk CommissionAct30 limit the court to determining if the order appealed is withinthe discretion vested in the Commission, and if so, whether the Com-mission has exercised a reasonable discretion or the order is unreasonableor capricious. Legislative action would not be required, however, ifthe supreme court were to adopt the Connecticut court's concept ofthe purpose of a trial de novo on appeal from an administrative body8 'and limit the superior courts to the determination of the single ques-tion "Has the Commission acted illegally?"G. DUDLEY HUMPHREY, JR.Bankruptcy-Survival of Liability for Willful and Malicious InjuryThe Bankruptcy Act' operates as a discharge or release of a bankruptfrom all his debts which are provable in bankruptcy, except such as areexcepted in the act, and has as its purpose to relieve the honest debtorfrom the weight of oppressive indebtedness with leave to start afresh. 2Where the liability or debt is the result of a judgment arising out ofautomobile accidents the idea of discharge has met with considerablecriticism. This criticism may be illustrated by the language of a NewYork case where it was said:If the court were permitted to do moral justice instead of legaljustice it would refuse to discharge the bankrupt of the judgments.There are too many accidents resulting in judgments which arewiped out in bankruptcy. The practice has grown up wherein aperson will negligently operate his automobile and then when ajudgment for such injuries is rendered against him, will obtain theprotection of the Bankruptcy Law by filing a voluntary petitionin bankruptcy . . . Operators of automobiles may drive in acareless and negligent manner and go unscathed of justice byfiling a petition in bankruptcy.'Although liabilities which are the result of willful and maliciousinjuries to person or property are not dischargeable in bankruptcy,4 thecourts are by no means in accord as to what constitutes willful andmalicious conduct. Most of the cases seem to lie between the areas29 N.C. Gm. STAT. § 106-266.17 (Supp. 1959).2 0 VA. CoDE §§ 3-369 to -371 (1950)."' See note 11 supra.'Bankruptcy Act, ch. 541, 30 Stat. 544 (1898), as amended by 66 Stat. 420(1952), 11 U.S.C. §§ 1-1086 (1958).'Williams v. U.S. Fid. & Guar. Co., 236 U.S. 549 (1915).3 Francine v. Babayan, 45 F. Supp. 321, 322 (E.D.N.Y. 1942).4 Bankruptcy Act ch. 541, § 17, 30 Stat. 550 (1898), 11 U.S.C. § 35 (1958).[Vol. 38

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Administrative Law -- Constitutional Law -- Delegation of Nonjudicial Duties to the North Carolina Superior Courts

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