Rogers, William E.

English

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Louisiana Law ReviewVolume 9 | Number 4May 1949Administrative Law - Waiver of Notice - Requiredby StatuteWilliam E. RogersThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationWilliam E. Rogers, Administrative Law - Waiver of Notice - Required by Statute, 9 La. L. Rev. (1949)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol9/iss4/8NOTESstruction, the courts have regarded unauthorized administrativeinterpretations as invalid.13 The instant case is an illustrationof this principle, but it is believed that since the purpose of theact is to protect the public the authority to require a bond mightwell have been read into the statute.ROBERT H. WILLIAMSADMINISTRATIVE LAW-WAIVER OF NOTIcE-REQUIRED BY STA-TUTE-Relators, school bus operators of East Baton Rouge Parishwho had acquired tenure, were given notice to appear before theschool board for a hearing to determine whether they shouldbe dismissed upon the ground of wilful neglect of duty. On theday set for the hearing these operators appeared with counselin the corridor of the courthouse, adjoining the room in whichthe meeting was being held; however, they refused, upon re-quest, to participate in the proceeding because the statutory re-quirement that notice be given at least fifteen days in advanceof the hearing had not been complied with by the board. Lou-isiana Act 185 of 1944 provides "that said School Bus Operatorshall be furnished by such school board at least fifteen days inadvance of said hearing, with a copy of the written grounds onwhich removal or discharge is sought."' The relators argued thatthe hearing was invalid because they had not received notice atleast fifteen days before the hearing. Held, that the operators'appearance with counsel in the corridor of the courthouse es-topped them from contending that notice was not given timely.2State ex rel. Williams v. East Baton Rouge Parish School Board,36 So. (2d) 832 (La. App. 1948).Ordinarily, a deviation from the statutory form and mannerof giving notice may be a ground for invalidating the administra-tive decision.3 The jurisdictions which require strict adherence13. For other cases see Peoria & Pekin Union Ry. v. United States, 263U.S. 528, 44 S.Ct. 194, 68 L.Ed. 427 (1924); Iselin v. United States, 270 U.S.245, 46 S.Ct. 248, 70 L.Ed. 566 (1926).1. La. Act 185 of 1944 [Dart's Stats. (Supp. 1947) §2248]: "It is furtherprovided that said school bus operator shall be furnished by such schoolboard at least fifteen days in advance of the date of said hearing, with acopy of the written grounds on which removal or discharge is sought. Saidschool bus operator shall have the right to appear in his own behalf, andwith counsel of his own selection, all of whom shall be heard by the boardat said hearing; provided, further that it is not the intent of this act toimpair the right of appeal to a court of competent jurisdiction."2. The court did not consider such technical contentions, as when thefifteen days began to run and the exclusion of certain days in computingthe fifteen days.3. See People v. Zoller, 337 Ill. 362, 169 N.E. 228 (1929), where the Stateof Illinois insisted that if there were any defects in the procedure of giving1949]LOUISIANA LAW REVIEWto the statutory provisions apparently attempt to restrict thelatitude of administrative bodies on notice procedure to thatwhich is exercised by courts. Perhaps this is due to the degreeof control exercised by courts over administrative bodies untilthe last few decades, since most of the cases adhering to thisview were decided before 1930. 4The better approach seems to be that an appearance will curea defective notice. Currently, the trend appears to be in thatdirection-that the number of fatal defects should be reducedto a minimum, without prejudice to the parties, as such technicalpoints are detrimental to the efficiency and flexibility of theadministrative process. The purpose of requiring notice of timeand place of hearing is to enable the parties to prepare for trialand to prevent the rendering of a decision by default, without theopportunity of being present. If a party appears at a hearing andis heard, the object of the notice is fulfilled.6 Then why shouldone be allowed to take advantage of a defective notice if he hasalready received all that was intended to be provided for himby the notice?The jurisdictions which narrow the scope of fatal defects ofnotice generally require that two conditions be met to constitutea waiver of notice: that the party appear and actually participatein the hearing, and that the party not be prejudiced by the non-compliance with the statutory provisions of notice.7 This is inline with the principle that if one receives all that was intendedto be provided for him by the notice, he cannot complain becauseit was defective. With this principle in mind, to what extent cancourts go in finding a defect in the notice has been waived bynotice, the decision was still valid, because the parties were either presentat the hearing or had been notified by mail of the hearing on that date. Thecourt held that the failure to post the notice in the proper manner was notcured by any subsequent acts of the parties. Mathiessen v. Ott, 268 Ill. 569,109 N.E. 260 (1915); People ex rel. Empie v. Smith, 216 N.Y. 95, 110 N.E.174 (1915); Zeidl v. Zauner, 247 N.Y. 17, 159 N.E. 707 (1928).4. See cases cited note 3, supra.5. Most cases which have held that appearance cures a defective noticeare cases where the owners of property subject to assessments had waivedthe right to notice by appearing at the hearing.6. "The object of the notice . . . is to enable the property owner to pro-tect his rights by proper proceedings. If he appear in the case, the object ofhis notice has been accomplished, nor will he be heard afterwards on thatground." Barker v. Omaha, 16 Neb. 269, 276, 20 N.W. 382 (1884).7. See Horstmyer v. Trial Board of Sacrements, 21 Cal. App.(2d) 688, 69P.(2d) 1021 (1937), where a police officer who was being tried before a citycouncil argued that the decision dismissing him was void, on the groundthat written notice was not properly served on him as the law required.The court rejected his argument, stating that he was not prejudiced by thedefective notice, for by his appearance and participation in the proceedings,he waived the service of notice.[VOL. IXNOTESappearance of the party at the hearing? In the past courts havelimited the cure of a defective notice to an actual appearanceand participation in the hearing.In this case the court has extended the doctrine of waiver ofnotice by an actual appearance and participation in the proceed-ing to an appearance with counsel in the corridor, adjoining thehearing room. Because of the peculiar facts in the case, it is be-lieved that such an extension is justified. First, the parties didappear, in a sense of the word; and although they did not par-ticipate in the hearing, they were given full opportunity to do so.It was their own choice in refusing the request to participate inthe hearing. Second, the alleged non-compliance with the act8did not prejudice the parties. This was evidenced by the partieshaving been present at the proper place, at the correct time, andwith counsel. Their appearance at the hearing with counsel wasprecisely the object to be accomplished by the notice.WILLIAIVI E. ROGERSALIMONY-EVIDENCE OF FAULT-AcCRUED PAYMENTS UNDERSUSPENSIVE APPEAL-In June of 1940, plaintiff husband wasawarded an absolute divorce on the ground of two years volun-tary separation. The wife reconvened for alimony, and the court,concluding that the evidence did not warrant a finding that shehad been at fault,' awarded alimony at the rate of five dollarsa week. Plaintiff's evidence, which might have proved that theparties had never lived together, was ruled inadmissible on theground that it was irrelevant in determining the fault issue. Fromthe alimony judgment, he appealed suspensively. Since neitherlitigant sought to have the case removed to the preference docketuntil 1947, eight and one-half years passed before the supremecourt heard the case Held, on appeal, the evidence admitted be-low was inconclusive on the issue of fault and evidence that theparties had never lived together would have been relevant indetermining this issue. The case was remanded for admission ofthe excluded evidence and determination of the fault issue, withinstructions to reinstate the prior judgment if defendant was notfound to have been at fault. Reich v. Grieif, 38 So. (2d) 381 (La.1949).8. La. Act 185 of 1944 [Dart's Stats. (Supp. 1947) § 2248].1. The defendant wife against whom is pronounced a judgment of divorceon the grounds of two year separation may be awarded alimony if she wasnot at fault in causing the separation. Art. 160, La. Civil Code of 1870.1949]

Administrative Law - Waiver of Notice - Required by Statute

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Administrative Law - Waiver of Notice - Required by Statute

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