State v. Kansas Cent. R. Co..... 529 Thompson v. Gibbs...

CASES ON ADMINISTRATIVE LAW

INTRODUCTION

The subject of administrative law covers a number of topics, which in treatises and digests are generally divided between the law of public officers and the law of extraordinary legal remedies, but which will also be found treated incidentally under such various heads as municipal corporations, taxation, highways, elections, intoxicating liquors, nuisances, public health, public lands, etc.

The common element, which gives the subject its unity, is the exercise of administrative power affecting private rights, and the term “administrative law" has in relatively recent times gained acceptance as the best designation for the system of legal principles which' settle the conflicting claims of executive or administrative authority on the one side, and of individual or private right on the other.1

The more general bearings of this branch of the law, from a constitutional and comparative point of view, have repeatedly engaged the attention of eminent publicists. E. Dicey, The Law of the Constitution, c. 12; E. M. Parker, 19 Harvard Law Review, p. 335; A. L. Lowell, Government of England, vol. 2, c. 52, pp. 489–504.

In France, the dissatisfaction and irritation caused by the resistance of a powerful and conservative judiciary to the policies of the government, before and at the time of the revolution, had given rise to a theory of separation of powers, according to which certain classes of controversies involving matters of public administration were withdrawn from the regular courts and assigned to distinct administrative tribunals.2

1 See F. J. Goodnow, Comparative Administrative Law, N. Y., 1893 (reviewed in an article by the author of this collection in IX Political Science Quarterly, 403); F. J. Goodnow, Principles of Administrative Law in the United States, N. Y., 1905; B. Wyman, Administrative Law, St. Paul, 1903. 2 The regular civil and criminal courts, however, likewise take cognizance of many causes of action involving the validity of administrative acts, so wherever prosecutions are instituted for penalties, where suits for damages are brought against public officers, and where the government seeks to condemn private property for public use.

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This system of administrative jurisdictions subsequently spread to other parts of continental Europe, and it is natural that the existence of courts exclusively concerned with questions of administrative law should have given that department of law a recognized status in the jurisprudence of the continental states.

The common law, on the other hand, has never given to the public law a similar recognition as a distinct part of its system. While old established differences of judicature and procedure have served to mark off the criminal law from civil rights and remedies, there has been no similar line of demarcation for the public law, the very name of which has no place in the technical language of the common law. It was, however, inevitable that the common law, when applied to matters of public administration, should develop principles in many respects different from those governing ordinary private rights.

In the first place, important privileges and immunities were conceded to the Crown. It is true that the English law made no distinction between the proprietary and the governmental capacity of the Crown, but in so far as the Crown represented the executive government, the law of the Prerogative meant also an exemption of public rights-from the ordinary rules of the common law.

In the second place, while the Crown did not identify itself with all its subordinate organs, and while therefore the liability of public officers was from the earliest times treated as a matter of common law, yet compensatory relief by actions for damages against officers came, generally speaking, to be confined to cases where the illegal act constituted trespass or conversion. Municipal corporations have generally been conceded immunity from liability where they act in a governmental and not in a proprietary capacity. The state and the general government have succeeded to the immunity of the Crown from being sued, and the creation of a statutory right to obtain pecuniary relief from the public treasury for losses suffered through administrative error or default is the exception and not the rule. As a consequence, the right to compensatory relief, which is the backbone of the common law, has only a very limited application in matters of public administration. See sections 33-41 of this collection.

In the third place, the right to specific relief is represented by the extraordinary legal remedies, supplemented by the slowly expanding jurisdiction of courts of equity to restrain administrative acts which are in violation of individual rights.

These extraordinary remedies differ in important particulars from other rights of action. They are not matter of absolute right, but are granted or refused by the courts according to a judicial discretion governed by considerations of public policy. See sections 62-64 of this collection.

Moreover, even in those states in which in ordinary civil controversies the forms of action have been reduced to one, there survives, as a needless legal archaism, the distinctiveness of the different extraor