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nothing in these words, however, that necessarily implies that due process of law must be judicial process. Much of the process by means of which government is carried on and the order of society is maintained is purely executive or administrative. Deprivations of liberty or property must often take place through the action of ministerial or executive officers or functionaries where it would never be supposed that the common law would afford a redress. While a day in court is a matter of right in judicial proceedings, in administrative proceedings it is otherwise, since they rest upon different principles. Summary process to enforce payment by delinquent or defaulting tax collector was usual and known at the time of the adoption of our Constitution; it was, therefore, due process of law.74

$94. Distraint.

These summary powers in administration are most obvious in matters affecting the collection of taxes from tax payers. State National Bank v. Morrison, 1 McCrary, 204 (1874), is one case from the mass of cases upon that subject. This was an action brought against a Deputy Collector of Internal Revenue to recover the amount seized by him in satisfaction of the tax upon the earnings of the bank. The bank, it appeared, had refused to make any return of its condition. But a tax had been assessed against it. Thereupon, a warrant was issued by the Collector to the Deputy Collector commanding him to distrain upon the goods and chattels of the bank. This was done. The bank now brings suit upon the basis that all that has been done was illegal and void.

74 DEMAND.-Murray's Lessee v. Hoboken L. & I. Co., 18 How. 272; Springer v. United States, 102 U. S. 594; Baltimore v. Hopkins Hojpital, 56 Md. 46; Nelson Lumber Co. v. McKinnon, 61 Minn. 222; Weimer v. Bunbury, 30 Mich. 201; Wilson v. Salem, 24 Ore. 509; Musser v. Adair, 55 Oh. St. 472; State v. Allison, 8 Heisk. 3.

NELSON, the District Judge, held the officer entitled to judgment: The act of Congress imposed the tax upon the income of the bank. These taxes the bank refused to pay after due notice and demand, and the Collector very properly under authority vested in him by the act of Congress proceeded to distrain for the same. The proceedings for the levy of public revenue, indeed, almost universally are conducted without judicial forms. Where such action is not required, the proceedings are regarded as purely administrative, and any hearing allowed parties in their process is but as a means of enlightening the Revenue Officers upon the facts which should govern their action. This has been so from time immemorial; and it has never been supposed that the tax payer had a constitutional right to resist the tax because he never had a judgment against him on a judi. cial hearing to fix the amount.

A case that is always prominent in any discussion of these problems is McMillen v. Anderson, 95 U'. S. 37 (1877). The defendant, a tax collector of the State of Louisiana, seized property of the plaintiff and was about to sell it for the payment of a license tax for which the plaintiff was liable; in accordance with the laws of Louisiana the plaintiff brought an action of trespass on account of the sale. The defendant pleaded that the seizure was for taxes due, and that his duty as collector required him to make it. On full hearing the state courts sustained his defense. This was a writ of error upon the ground that his proceedings did not give due process of law.

Mr. Justice MILLER on that point said: Looking at the Louisiana statute here assailed we feel bound to say that if it is void upon the ground assumed, the revenue laws of nearly all of the states are void for the same reason. The mode of assessing taxes by all governments is necessarily summary, that it may be speedy and effectual. By summary is not meant arbitrary or illegal or unequal. It must under our constitution be lawfully done. But that does not mean, nor does the phrase due process of law mean, by a judicial proceeding. The nation from whom we inherit the phrase due process of law has never relied upon the courts of justice for the collection of her taxes. We need not go here into the literature of that constitutional provision, because in any view that can be taken of it the statute here does not violate it, as it gives an opportunity to be heard.75

$95. Conclusion.

These cases in this discussion point to a central principle. The question is, what is due process of law for the administration?--not, what would be due process of law for the judiciary? It is a necessity that the processes of administration should be summary. Outright enforcement is the characteristic thing in the action of the administration. The executive must dominate the situation or its administration will prove a failure. The law concedes this. Much that is done by the administration in a summary way is yet held not to violate the rule which requires due process of law.

75 DISTRAINT.-Davidson v. New Orleans, 96 U. S. 105; Palmer v. McMahon, 133 U. S., 669; Winona, etc., Land Co. v. Minnesota, 159 U. S. 537; Commissioners v. Reeves, 148 Ind. 472; McMillen v. Anderson, 27 'La. Ann. 19; Eames v. Savage, 77 Me. 222; McMahon v. Palmer, 102 N. Y. 176; Gibson v. Mason, 5 Nev. 302; State v. Wilson, 121 N. C. 454; Cleveland v. Tripp, 13 R. I. 64; State v. Sponaugle, 45 W. Va. 422; Violett v. Alexandria, 92 Va, 561.

CHAPTER XI.

THE LEGISLATION OF THE ADMINISTRATION.

§ 96. Introduction.

97. Written Rules. 98. Scope. 99. Extent. 100. Unwritten Rules. 101. Validity. 102. Propriety. 103. Conclusion.

$96. Introduction.

As has been remarked, the whole of administration is governed to a greater or a lesser extent by fixed rules, These rules are made by the executive itself in the course of administration to facilitate the enforcement of the law. In part these rules are written, then they are called regulations; in part they are unwritten, then they are called usages. The general result is a definiteness in usual administration. The situation that is found is this: When the law is put upon the statute book it is not specific enough for administration. It requires further elucidation. This is the office of the legislation which is done by the administration. That is, the administration first of all puts the law in shape for convenient administration. The force of these regulations that thus accompany the statute is the legal problem. The general conception is that these regulations have the force which any governmental action has. This is usually summed up in the ordinary decision by the statement that these regulations have the force of law.

The position of such regulations is seen in a long series of decisions. An early (ase that settled the matter is the United States v. Eliason, 16 Pet. 291 (1842). This was assumpsit against Eliason for a balance against him on the books of the government brought by the United States. An agreed case was made up from which it appeared that the point in issue was the force that shouli be attached to certain army regulations under which the defendant had acted.

The opinion of the court was by Mr. Justice DANIEL: The power of the executive to establish rules and regulations for the government of the army is undoubted. The Secretary of War is the regular constitutional organ of the President to promulgate such rule. Such regula. tion cannot be questioned or defined because they may be thought unwise or mistaken. The right of so considering and treating the authority of the executive, vested, as it is, with the command of the military and naval forces, would be a complete disorganization of both the army and the navy. A regulation has the force of law within the sphere of its legal operation.

The regulations upon examination of the situation will be found to be as multifarious as the statutes upon which they depend. These regulations represent the exercise of a very considerable power on the part of public officers in their relation with the public. And they serve a purpose in the administration not commonly appreciated. There are innumerable instances of these regulations. The regulations, directions, circulars, instructions, forms, promulgated by the executive department confront the citizen in all his dealings with the government.

So far as these are all put forth in due

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