Page images

mayor of Saint-Florent in 1904 prohibited processions and religious demonstrations; he did this on the strength of the law of April 5, 1884, empowering mayors to control by appropriate regulations all that concerns the safety and convenience of traffic, as well as good order and public peace, and of the law of December 9, 1905, ordering that religious processions should be governed by the provisions of the law of 1884. The mayor had also power to prohibit religious demonstrations. A priest was charged with infringing the mayor's decree by carrying the viaticum to a sick person, with the usual ritual. The case came before the Conseil d'Etat, first on formal grounds, and then for a decision of the principle on which the mayor's decree was based. What the law had in view were processions of the Catholic cult which, in case of a difference of political views, could lead to civil war. The Conseil d'Etat went into the motives of the law and refused to regard the carrying of the viaticum as a public procession in the sense which the legislators had in view. They considered the decree an unnecessary check on the freedom of the cult. For the mayor had, in the exercise of the power conferred on him, to conform with article 1 of the law of 1905, which safeguarded the free exercise of the religious cults within the limits imposed in the public interest; local traditions could, therefore, be infringed only in so far as this was strictly necessary to maintain public order. The Conseil declared that no consideration based on the necessity to maintain order on the public road could be pleaded to forbid carrying the viaticum in circumstances sanctioned by local habits and traditions.20 It may be said that the French administrative courts are attempting to watch not only over the external application of the law but over its exercise in accordance with its guiding principles-its spirit. They are in a position to make the attempt, because they are provided with a

20 "The Council of State . . . whereas it belongs to the competence of a mayor, by virtue of dispositions of . . . to regulate ceremonies, processions, and public forms of worship, it is his duty in the fulfilment of this mission to conform to article I of the last law (on the subject), that of December 9th, 1905, which guarantees freedom of worship under such restrictions only as are made in the interests of public order; and he ought not to do violence to local tradition, except in so far as may be strictly necessary for the maintenance of order.

Whereas then, by virtue of the dispositions mentioned above, it came within the competence of the mayor of S. F. to prohibit processions and religious manifestations within the territory of the commune, as he did in his decree of November 24th, 1904, yet no motive based upon the necessity of maintaining order on a public highway could have been invoked to justify him in prohibiting the carrying of the viaticum in conditions made sacred by usage and local tradition."

complete personnel trained in administrative work, whereas English courts are essentially juridical in their constitution.

In summing up the substantial points of our comparative survey, we may, I think, lay stress on the following points:

1. As regards compensation for damages, the notions at present obtaining in English jurisprudence ought to be supplemented by the extension of the right to claims, indicated in dominion legislation.

2. The immense development of the administrative functions of the state in its police or welfare and its educational and economic policy render necessary a corresponding development of administrative jurisdiction instead of the irregular methods of quasi judicial boards.

3. The final supervision of legality, interpretation and application of laws ought to remain in the hands of the high courts of justice in conformity with the standards of independence, impartiality and authority set by the Anglo-American judicial system.

4. The treatment of cases in public law could be made more effective by the establishment of mixed tribunals composed of experts in administration presided over by judges with wide powers of juridical control. Paul Vinogradoff.

Oxford University.

Europeanizing the State Constitution-


The Water and Power Amendment

OVERNMENTAL Opposition to power outside of the government has created various commissions. To accomplish their purpose they have to receive greater power than the power which they oppose. Likewise, to protect the public from being itself dominated by the commissions, maintenance of the common constitutional checks in the public interest becomes the more important. Without that, the commissions would become a mere replacement of the abuses which they overcome in others. The proposal sometimes found to discard the constitutional safeguards against this is shortsighted in the extreme.

An instance, of wider extent than its name suggests, is the constitutional amendment called the Water and Power Bill, defeated at the last election and on the ballot again unchanged. Its scope is much wider than its name.

1. The provisions of the Water and Power Bill are mainly as follows: By constitutional amendment it puts in the hands of a board of five men "the waters and lands of the State" (sec. 3, sub. d). Also such waters and lands as they can get from the United States and from neighboring States (sec. 3, sub. f, g). Also they may get lands, waters "and any other property" by buying "or other legal means." What to build and what to operate is also left to their discretion (sec. 3, sub. a);—a very comprehensive discretion to do "any and all things" concerning water or electricity, and to get or make "any property or thing" that they consider "convenient" (sec. 3, sub. a and b). For this the Bill by section 5 puts in their hands $500,000,000 in State bonds.1

It would thus create in five men by constitutional provision an unlimited personal discretion with nothing specified.

2. Among the elements of popular government is the right of the people to make their own laws. The Bill grants to the Board power to "adopt rules and regulations" (sec. 3, sub. k), and these will have the force of legislation over the agriculture, manufacturing, lighting and

1 A finance committee is named to do the clerical work, subject to supreme control of the bonds by the board.

communications of the State. In other sections the five men become their own rate-fixing authority for water delivered to the consumers out of the $500,000,000 or for electricity furnished (sec. 8). If enough money is not raised from consumers to meet the bonds, "there is hereby appropriated from the general fund in the State Treasury such sum annually as will be necessary" (sec. 9). What the five men do not raise from the people as ratepayers, they may take from the people as taxpayers.

The five members of the Board may, and obviously will, thus legislate over the people of the State. The people through their representatives are foreclosed from passing laws to avoid the Board's arbitrary refusal of service to citizens, favoritism in its service to localities, kinds of industries, factories, crops, towns, and other like legislation on which public welfare will depend. The people through their representatives in the legislature may have some idea what the rules ought to be in other respects also. But the effect of the Bill will be to release the five men from such constitutional considerations.

Being themselves chartered by the Constitution, they are to be supreme in their field, to follow their personal ideas and legislate as they please; and the legislature is closed.

3. Donation of supreme power similarly closes the courts. Under the Bill the five men will hear and be their own judges of complaints that may arise, including complaints against themselves. Being placed in the Constitution, they are as high as the courts. Even the Supreme Court, which was left superior to the Railroad Commission, is not granted any authority by the Bill to hear complaints against the water and power Board.

The ordinary man is so used to knowing that if he feels himself wronged by public officials he can turn at present to the courts for as impartial a hearing as human nature permits, that it is hard to realize that the Bill contemplates a situation with the courts gone. It can be brought to mind somewhat by the following, not overdrawn, description.

"The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be

sure that he may not be tomorrow the victim of a spirit of injustice by which he may be a gainer today. And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress."

It might be thought that the Bill would endeavor to insure to consumers a fair hearing by the Board, in view of the loss of access to impartial courts. But the Board is as unrestricted in the method of reaching its decision as in other matters. No notice to consumers is guaranteed by the Act, no hearing, no taking of evidence before a decision.

Doubtless the arrangement would meet its deserved overthrow at the hands of the Federal Constitution. In discussing an order of a state public service commission, the Supreme Court of the United States spoke of "such a want of hearing or such arbitrary or capricious action on the part of the commission as to violate the due process clause of the constitution." Of an act of the immigration officials in the exclusion of foreigners it was said that there must be a "fair investigation" by the executive officers and "the decision must be after a hearing in good faith, however summary," at which evidence is taken and made of record, open and not secret.1 The Interstate Commerce Commission Act and the Federal Trade Commission Act provide in the statute for an administrative hearing, wherefore expressions under those acts that the need is constitutional may be obiter; they are, however, strong: "A finding without evidence is arbitrary and baseless" and "it has been distinctly recognized that administrative orders, quasi judicial in character, are void if a hearing was denied." "To refuse to consider evidence introduced or to make an essential finding without supporting evidence is arbitrary action." "All parties must be fully apprised of the evidence submitted or to be considered and must be given opportunity to cross-examine witnesses, to inspect

2 The Federalist, No. 78.

3 New York, etc. Co. v. McCall (1920) 245 U. S. 345, 348-349, 62 L. Ed. 337, 38 Sup. Ct. Rep. 122.

4 Kwock Jan Fat v. White (1920) 253 U. S. 454, 457, 64 L. Ed. 1010, 40 Sup. Ct. Rep. 566, 570. Likewise, Carstens v. Pillsbury (1916) 172 Cal 572, 158 Pac. 218; Roanoke W. Com. v. Commonwealth (1923) 119 S. E. 268 (Va.).

5 I. C. C. v. Louisville R. Co. (1913) 227 U. S. 88, 91, 57 L. Ed. 431, 33 Sup. Ct. Rep. 185, 186-187.

6 Baltimore & Ohio R. Co. v. U. S. (1924) 68 L. Ed. —, 44 Sup. Ct. Rep. 317.

« PreviousContinue »