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If the duty is ministerial, all that there is to be done in the administration of the law is to do what the law directs; but if the power is discretionary, it is a question of the application of a conditional law upon the determination of existent facts. The scope of the function of an officer in the administration of the law, then, depends upon the extent to which discretion had been vested in it.61
$ 79. Authorization.
If, then, the case for the application of the law be one where the officer has discretion, he has the power to determine in what condition of affairs the law shall be applied. To confide such a power to a public officer seems to intrust him with an arbitrary power. State v. Yopp, 97 N. C. 478 (1887), is the real answer to that. In this case every person had been forbidden by a statute to use upon a certain highway any vehicle not drawn by horses without the permission of the Superintendent of the road. This was a police regulation and as such not much argument could be made against it. The chief contention against the law was that it left an arbitrary power to the Superintendent to admit some and exclude others at his whim.
61 THE OFFICER AS AGENT.-Musgrave v. Pulido, 5 App. Cas. 102; Board of Liquidation v. McComb, 92 U. S. 531; Harbin v. Stewart, 4 Port. 370; Woodward v. Campbell, 39 Ark. 580; Bateman v. Colgan, 111 Cal. 587; State v. Staub, 61 Conn. 553; United States v. Douglass, 19 D. C. 99; State v. Drew, 17 Fla. 67; State v. Thrasher, 77 Ga. 671; People v. Knickerbocker, 114 Ill. 539; Clark v. Des Moines, 19 Ia. 199; Mayo v. Commissioners, 141 Mass. 74; Baltimore v. Reynolds, 20 Md. 1; People v. Auditor General, 36 Mich. 271; Swan v. Gray, 44 Miss. 393; State v. Bank, 45 Mo. 528; State v. Scott, 18 Neb. 597; Phelps v. Hawley, 52 N. Y. 23; State v. Yopp, 97 N. C. 478; Ex parte Black, 1 Oh. St. 30; Commonwealth v. McLaughlin, 120 Pa. St. 518.
The court-MERRIAM-answered: This is a misapprehension of the true import of the provision cited. The discretion vested in the Superintendent is not arbitrary. He is the agent of the law, and he is bound to exercise discretion vested in him honestly and fairly, reasonably and without prejudice, for the just purpose of effectuating the intention of the statute. It not infrequently happens that statutes require particular things to be done that must be made to depend upon the judgment—discretion-of a designated officer, and the discretion in such cases is not arbitrary, it is lawful and it must be lawfully executed. In our case the purpose of the statute is obviously a lawful one-a proper regulation of the use of property—and the designation of the agent and the discretionary power conferred upon him are for the lawful purpose of effectuating the just intent of the statute; and he is amenable for any abuse of that discretion.
United States v. Douglass, 19 D. C. 99 (1890), is to this same effect. This was a petition for a writ of mandamus commanding the Commissioners of the District of Columbia to approve and issue a retail liquor license to the relator. He states in his petition his proceedings in applying for the license now in question, and alleges that the Commissioners rejected his application in consequence of an adverse report made to them by an incompetent officer, Lieutenant Amiss, which report he further declared to be false. The issue thus became whether the court would go into the matter; for if they would a case for reversal seemed to have been made out.
As in the case before decided, this power was held discretionary. On that point the court by Mr. Justice JAMES said: The meaning of the term “discretionary," when granted by the law either expressly or by implication, in connection with the exercise of official duty, is that the discretionary decision shall be the outcome of examination and consideration. In other words, that it shall constitute the discharge of official duty and not be a mere expression of personal will. Thus, where discre. tionary power is granted to approve or disapprove a license, an arbitrary disapproval without examination of relative facts, and expressing nothing but the mood of the officer, would not be in exercise of discretionary powers within the legal meaning of that term. In exercising their discretionary power to grant or refuse licenses, the mode of inquiry by which the Commissioners may satisfy their judgment is not subject to the rules which apply to the judicial ascertainment of disputed private rights; no mode of inquiry is prescribed by the statutes, and they are therefore by implication authorized to adopt any that may reasonably be used in attaining the end in view. In every system of executive discretion, the executive head may act upon mere information received from accountable superiors.
All of these cases are in truth to the same effect. In the application of law the requisite thing is judgment. The application of a general law to a particular case involves the determination in a particular case whether the general law is applicable. There is a certain science in administration, but it all turns about this one point, the application of a general law to a particular case; and that all depends upon one thing, the determination in a particular case of the application of that general law. In a sense the first is a question of law, the second is a question of fact. That is, all administration is a mixed question of law and fact. To reduce it to two phrases, administration involves interpretation of law and determination of fact; or, in a word, the application of law.62
$ 80. Interpretation.
To continue along the same line of thought as in the preceding section, what is the extent of the express authority depends upon interpretation in each case for itself. A case for illustration is McCormick, Ct. of Cl. 0. s. No. 199 (1856). This opinion is as follows: This award, as has been said, is the foundation of this suit, and is the only evidence offered to prove the amount claimed against the government. Commodore Jones, it is true, was acting as an agent of the government with respect to this mill. Whether his authority was limited to having the mill built for the use of the government, or whether his authority in regard to the mill was that of a general agent, is not deemed material. We consider the law to be that such an agent of the government as the Commodore was, cannot without being especially authorized to do so, bind the government by submission of matters in dispute in arbitration. It fol
62 AUTHORIZATION.-Reg. v. Secretary [1891) 2 Q. B. 326; Marbury v. Madison, 1 Cranch, 169; Harbin v. Stewart, 4 Port. 370; Woodward v. Campbell, 39 Ark. 580; Freeman v. Selectmen, 34 Conn. 406; United States v. Chandler, 13 D. C. 527; Towle v. State, 3 Fla. 202; Dart v. Hercules, 57 Ill. 449; Louisiana College v. State Treasurer, 2 La. 394; Weston v. Dane, 51 Me. 461; Waite v. Delesdernier, 15 Me. 144; Mayo v. Commissioners, 141 Mass. 74; Stevens v. Lake George R. R., 82 Mich. 426; Swan v. Gray, 44 Miss. 393; State v. Walbridge, 69 Mo. App. 657; Bucher v. Thompson, 7 N. M. 115; Danolds v. State, 89 N. Y. 36; Carr v. Northern Liberties, 35 Pa. St. 324; Turnpike Co. v. Brown, 8 Baxt 490.
lows that the contract of the 7th of April, 1819, with Parker, which provides for a submission to arbitration, is void for want of authority in the Commodore to make it; and of course the award must therefore be void.
This opinion may with profit be compared with the opinion of the Compromises, 22 Opin. 491 (1899). The drift of that opinion may be seen from the following quotation: Unless express provision of law is in a specific case to the contrary the powers of the AttorneyGeneral are plenary upon these matters. The primary broad and general control of the Attorney-General of suits in which the United States is interested conferred by statutes, fully authorized such disposition of pending litigation as seems to him meet and proper. He exercises general supervision over proceedings instituted for the benefit of the United States; and to him is necessarily intrusted, in the exercise of his professional discretion and because of the nature of the subject, the determination of many questions of expediency and propriety affecting the continuance or dismissal of legal proceedings. He may absolutely dismiss suit; a fortiori he may terminate at any stage by way of compromise or settlement.
The parallel between these last two decisions is illuminating. Why is the power to leave to arbitration not within the authority of the Commodore; and why is the power to compromise in litigation within the authority of an Attorney-General? In neither case is the power given explicitly; why, then, is it held to be within the scope of the authority of the first, and not within the scope of the authority of the second? The answer must be that authority is deduced from the nature of the