Matthews, T. J.

English

St. John's University School of Law

St. John's Law Review Volume 7 Number 1 Volume 7, December 1932, Number 1 Article 8 June 2014 Administrative Law and the Separation of Powers T. J. Matthews Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Matthews, T. J. (1932) "Administrative Law and the Separation of Powers," St. John's Law Review: Vol. 7 : No. 1 , Article 8. Available at: https://scholarship.law.stjohns.edu/lawreview/vol7/iss1/8 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. NOTES AND COMMENTHis has been the last act which increased the danger and he is respon-sible for any injury resulting therefrom. This does not rest on thetheory of a duty to complete, but on the obligation not to create adanger which had heretofore not existed.A fortiori the argument becomes the stronger if in repairing hecreates a danger in some part of the premises distinct from the onehe is repairing. Thus his liability is for active, creative acts of negli-gence and not merely for passive omission to completely removedefects.To summarize, the rule that a landlord who gratuitously repairspremises is liable for damage only if he has misrepresented the con-dition of the repairs, or has created a new danger, or enlarged an old,seems amply supported by judicial opinion and legal principle 26 andis a just and fair one.IRVING L. WHARTON.ADMINISTRATIVE LAW AND THE SEPARATION OF POWERS.That the law is a living organism capable of adaptation to theever-increasing complexities of the modern social and political systemis well illustrated in the development of that branch of jurisprudencethat is termed administrative law.Administrative tribunals are public officers and commissionswhich in addition to their primary executive or delegated legislativepower, have incidental judicial power, that is, power to hear anddetermine causes. Administrative law embraces the principles ap-plied by the courts in reviewing the determinations of these tribunals.Fundamental in administrative law is the principle that the juris-diction of an administrative tribunal not being at issue or having beenestablished, an appellate court will not interfere with the action ofthat tribunal unless it is arbitrary, unreasonable or capricious. If theadministrative tribunal has jurisdiction, and has a reason for its deter-mination, the appellate court will look no further; it will not substi-tute its judgment for that of the tribunal.' "Power to make the"2 AmERICAN LAW INSTITUTE, RESTATEmENT OF THE LAW OF TORTS §232:"A lessor of land, who by purporting to make repairs thereon while the land isin the possession of his lessee or by the negligent manner in which he has madesuch repairs has, as the lessee neither knows nor should know, made the landmore dangerous for use, is subject to liability for bodily harm caused therebyto the lessee and others upon the land in the right of the lessee."Hilton v. Merritt, 110 U. S. 97, 3 Sup. Ct. 548 (1888); Buttfield v.Stranahan, 192 U. S. 470, 24 Sup. Ct. 349 (1903) ; U. S. v. Ju Toy, 198 U. S.253, 25 Sup. Ct. 644 (1905) ; Interstate Commerce Commission v. Illinois Cen-tral R. R. Co., 215 U. S. 452, 30 Sup. Ct. 155 (1909) ; People ex reL. New York& Queens Gas Co. v. McCall, 245 U. S. 345, 38 Sup. Ct. 122, aff'g, 219 N. Y.84, 113 N. E. 795 (1916); People ex rel. Schwab v. Grant, 126 N. Y. 473,27 N. E. 964 (1891); Matter of Ormsby v. Bell, 218 N. Y. 212, 112 N. E. 747(1916) ; People ex rel. Board of Education v. Graves, 243 N. Y. 204, 153 N. E.49 (1926).ST. JOHN'S LAW REVIEWorder and not the mere expediency or wisdom of having made it, isthe question." 2The principle here stated has been applied by the Court ofAppeals in several recent cases. In Agoglia v. Mulrooney 3 the Courtupheld the Police Commissioner of the City of New York in hisrefusal to grant a license for a cabaret. The Commissioner was act-ing under an ordinance which prohibits the operation of a cabaretwithout a license issuable by him, and providing that no license shallbe so issuable unless the place sought to be licensed "in the opinion ofthe Police Commissioner is a safe and proper place to be used as acabaret." The petition showed that there were four poolrooms in theimmediate neighborhood of the proposed cabaret, and also that therewas a school within a few hundred feet. The Superintendent ofSchools in a letter to the Commissioner had opposed the issuance ofthe license because of the nearness of the proposed cabaret to a school.The Police Commissioner considered these facts together with recordsand reports of the Police Department, "the exact purport of which"was not shown by the record, and refused to issue the license. TheCourt of Appeals affirmed an order denying a motion for a peremp-tory writ of mandamus, holding that "under the circumstances therefusal of the Commissioner of Police to issue the license can hardlybe said to be capricious or unreasonable. The petitioner thereforehas shown no clear legal right, and the Commissioner's opinion,rather than that of the court, must control."In Perlmutter v. Greene 4 the Court of Appeals refused to re-strain the State Superintendent of Public Works from erecting at adangerous curve in a public highway a screen that shut off the viewof the petitioner's billboard. After deciding that the Superintendenthad jurisdiction, the Court held that he "may act reasonably in hisdiscretion for the benefit of public travel in screening a billboard at adangerous curve when by its enormity such a structure may divertthe attention of the motorist from the road." In Bloom v. Cruise 'the city clerk of New York refused the petitioner a permit to erect anelectric sign after the petitioner had secured the approval of theSuperintendent of Buildings and the Commissioner of Water Supply,Gas and Electricity in pursuance to an ordinance which provided that"All permits for illuminated signs shall be issued by the city clerk,upon application therefor, approved by the -Commissioner of WaterSupply, Gas and Electricity and the Superintendent of Buildings inthe case of electric signs," on the ground that the proposed sign itselfviolated the law. The Court of Appeals upheld the city clerk. Hisduties are largely ministerial but "while his power to exercise dis-- Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S.452, 30 Sup. Ct. 155 (1909).' 259 N. Y. 462, 182 N. E. 84 (1932).'259 N. Y. 327, 182 N. E. 5 (1932).- 259 N. Y. 358, 182 N. E. 16 (1932).NOTES AND COMMENTcretion is extremely limited he is not, on the facts before us, entirelywithout some measure of it."When considering the determinations of a public service com-mission, the courts apply this general principle when the determina-tion involves such matters as the issuance of a certificate of con-venience and necessity,6 the extension of service,7 or the issuance andsale of securities.8In Public Service Interstate Transportation Co. v. Public ServiceCommission09 the Court of Appeals refused to interfere where theCommission had issued a certificate of convenience and necessity to acompetitor of the petitioner, saying that the convenience and necessityof a proposed bus line and the granting of permission to operate it arematters which are within the discretion of the Commission. "Thecourt cannot substitute its judgment for that of the Commission, butis limited to a determination whether the order of the Commission isin excess of its powers." In People ex rel. New York & QueensGas Co. v. McCall 10 the Court of Appeals upheld an order of thePublic Service Commission requiring an extension of service under astatute which gave the Commission power to require "reasonableextensions of service," where although it appeared that a fair returnwould not be earned at the outset on the fair value of the extension,it was not shown that the petitioner would not earn a fair return onthe fair value of its entire property of which the extension wouldform a part. The Court of Appeals would not substitute its judg-ment of what was reasonable for the determination of the Commis-sion where the order of the Commission violated no rule of law. Inaffirming this decision, the Supreme Court of the United States saidthat it would examine the records as far as necessary to determinewhether any constitutional right claimed has been denied, but that"it has not the authority to substitute its own judgment for that ofan administrative commission as to the wisdom or policy of an ordercomplained of, and will not analyze or balance the evidence beforethe commission for the purpose of determining whether it prepon-derates for or against the conclusion arrived at. * * * "1"But when a public service commission passes upon or fixes arate to be charged by a public utility for its service, the court inreviewing the action of the commission no longer applies the test ofwhether the findings of the commission are arbitrary, unreasonable,or capricious, but rather whether these findings are reasonable in theindependent judgment of the court. "In all such cases, if the owner'Public Service Interstate Transportation Co. v. Public Service Commis-sion, 258 N. Y. 455, 180 N. E. 170 (1932).'People ex rel. New York & Queens Gas Co. v. McCall, 219 N. Y. 84,113 N. E. 795 (1916), aff'd, 245 U. S. 345, 38 Sup. Ct. 122 (1917).'New York State Electric Corporation v. Public Service Commission, 260N. Y. 32, 182 N. E. 237 (1932).'258 N. Y. 455, 180 N. E. 237 (1932).10219 N. Y. 84, 113 N. E. 795 (1916)."245 U. S. 345, 38 Sup. Ct. 122 (1917).ST. JOHN'S LAW REVIEWclaims confiscation of his property will result, the state must providea fair opportunity for submitting that issue to a judicial tribunal fordetermination upon its own independent judgment as to both law andfacts: otherwise the order is void because in conflict with the dueprocess clause, Fourteenth Amendment." 12 Similarly where admin-istrative tribunals are empowered by statute to determine damages,the court will examine the evidence upon which the tribunal bases itsfindings.13 In the first instance the courts have probably been influ-enced by the magnitude of the property rights involved, and in thesecond the process of the commission is so essentially judicial thatthe courts have not seen fit to relinquish their independent judgmenteven where the findings of the administrative tribunal are not arbi-trary, unreasonable, or capricious.Elementary textbooks state that one of the doctrines of govern-ment upon which the American governmental system is based is thedoctrine of separation of powers, that is, that as far. as practicable,legislative, executive, and judicial powers shall be exercised by dif-ferent men or groups of men, to the end that there may be a govern-ment of laws rather than of men. Thus the Federal Constitution vestsall legislative power in the Congress, 14 the executive power in thePresident, 5 and the judicial power in the Supreme Court of theUnited States.'" Separation of powers in the state governments isnot required by the Federal Constitution,1 7 but all state constitutionsrequire it to varying extents. In the constitution of the State of NewYork it is provided that the legislative power is vested in the statelegislature 18 and the executive power in the governor. 19 The judicialpower is not expressly vested in the courts of New York by the stateconstitution, but, on the other hand, such power is not vested else-where, and the Court of Appeals for all practical purposes proceedson the assumption that the judicial power is vested in it.2O An amend-ment to the state constitution that would expressly vest the judicialpower in the Court of Appeals was reported 21 to the legislature in1922, but that amendment has not been made to the constitution.This doctrine of separation of powers cannot, of course, be rig-orously applied in all cases.2 2  It has always been recognized that"Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, 40 Sup.Ct. 527 (1920).- People ex rel. Dawley v. Wilson, 232 N. Y. 12, 133 N. E. 45 (1921).14 ART. I §1 U. S. CONSTITUTION." ART. II §1 U. S. CONSTITUTION.16ART. III §1 U. S. CONSTITUTION.7 Calder v. Bull, 3 Dall. 386 (U. S. 1798); Michigan Central RailwayCo. v. Powers, 201 U. S. 245, 26 Sup. Ct. 459 (1905).18ART. III §1 N. Y. CONSTITUTION.19ART. IV §1 N. Y. CONSTITUTION."People v. Howland, 155 N. Y. 270, 49 N. E. 775 (1898); People v.Kennedy, 154 App. Div. 558, 139 N. Y. Supp. 896, aff'd, 207 N. Y. 533, 101N. E. 442 (1913)."Report of Judiciary Constitutional Convention of 1921 to the New YorkLegislature, Legislative Document No. 37 (1922).-2 WILLOUGHBY, THE CONSTITrrTO, c. LXIII.NOTES AND COMMENTeach department to facilitate its procedure and to maintain its inde-pendence of the other departments must to some extent exercise pow-ers that, strictly speaking, belong to other departments. Thus, forinstance, the legislature must often be judicial in its investigationspreliminary to legislation, and the executive and judicial departmentsmust make rules concerning procedures that are legislative in charac-ter. But clearly these reasons of convenience and independence ofaction do not explain the length to which administrative tribunalshave been permitted to exercise judicial power. Rather this is to beseen as one phase of the reaction against that kind of legal adminis-tration that had for its ideal fixed rules which applied to given factsthrough a mechanical process of reasoning would inevitably producethe same result.2 3 Appellate courts when confronted with the prob-lem whether rule or discretion should govern their attitude towardthe determination of administrative tribunals allowed these tribunalsa wide range of discretion. The adoption of this attitude by thecourts was based on recognition that a large and increasing numberof problems require for their solution special knowledge, skill, andexperience that the courts do not have. Expediency and the bestinterests of society indicated that the solution of these problemsshould be intrusted to administrative tribunals having the peculiarqualifications necessary to the task. "In the government of the affairsof a great municipality many powers must necessarily be confided tothe direction of its administrative officers, and it can be productiveonly of mischief in the treatment of such questions to substitute thediscretion of strangers to the power in place of that of the officersbest acquainted with the necessity of the case and to whom the legis-lature has specially confided their exercise." 24Thus by a process of judicial self-limitation 25 the courts haveestablished the principle that, in general, administrative tribunalsessentially executive or legislative in character may exercise a widerange of discretion in the exercise of their judicial power, subjectonly to the requirement that their determination shall not be arbitrary,unreasonable or capricious. As a result such administrative tribunalshave developed and have come to fill an important place in Americanfederal and state governments-and this has been accomplished with-out any violent disavowal of the doctrine of separation of powerswhich is so prominent in the American governmental system as dis-cussed in the elementary textbooks.T. J. MATTHEWS.Note (1920) 33 HARv. L. REv. 972.People ex rel. Schwab v. Grant, 126 N. Y. 473, 482, 27 N. E. 964, 967(1891).3Finkelstein, Judicial Self-Limitation (1924) 37 HAv. L. Rav. 338,Further Notes on Judicial Self-Limitation (1925) 39 HARv. L. REV. 221.Contra: Weston, Political Questions (1924) 38 HARv. L. Rr v. 296.

Administrative Law and the Separation of Powers

https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=6139&amp;context=lawreview

Administrative Law and the Separation of Powers

Abstract

Similar works

Full text

Available Versions

St. John's University School of Law