was reduced to the alternative of foregoing his right to receive the goods or to run the risk in question.1

Thus it has been seen that while in England the pressure of the servant's necessities has finally come to be regarded as destructive of his free will when placed in a position where he must either encounter some probable though not imminently threatening danger, or else give up his employment, the American cases stoutly deny it any such effect. It may well be that the different economic conditions of the two countries may account for this. In England work has become, especially during the development of the present position of English courts on this point, increasingly difficult to obtain. The loss to a workman of his job is a very real misfortune, the fear of losing it a very pressing species of compulsion. On the other hand, in America as yet there is normally no dearth of work for competent workmen. If one job is dangerous, another can probably be found. Add to this the known tendency of American workmen to take desperate chances touching their safety, and it may well be that in the vast majority of cases any real pressure arising from fear of loss of employment is practically non-existent; and the risk is encountered through mere thoughtless recklessness or disinclination to leave a position in other respects satisfactory. That which in England effectually coerces and controls the will may well have no such effect in America.

UNIVERSITY OF PENNSYLVANIA.

Francis H. Bohlen.

1 So in McCarthy v. Foster, 156 Mass. 511, the plaintiff was the servant of a tenant, and was using an elevator which the landlord was bound to keep in repair. It would seem therefore that under the authority of Looney v. McClain, 129 Mass. 33, his master would have been entitled to find the elevator in good order, and would have had the right to use it though slightly dangerous, and the plaintiff in the right of his master would equally have been entitled to have encountered a slight risk rather than forego See Shoninger Co. v. Mann, 3 L. R. A. (N. s.) 1097 (Ill., 1906), accord. However, the evidence showed that the plaintiff had, by his own conduct in piling merchandise against the slats of the elevator, added to the risk. His injury therefore was due to his own contributory and negligent act in increasing the risk which arose from the obviously defective condition of the elevator.

such a use.

EXECUTIVE JUDGMENTS AND EXECUTIVE LEGISLATION.

THE

HE questions, How far are the decisions of executive officers conclusive? and, To what extent and in what cases are such decisions reviewable by the courts? are, under our system of government, of great importance, and problems involving their consideration are constantly presenting themselves for solution.

No one who has made any study of these questions can have failed to be impressed with the unsatisfactory character of the decisions of the courts relating thereto. The difficulty appears to be largely due to improvident attempts on the part of the courts to formulate in the cases actually before them a rule or rules which shall not only dispose of the case at bar in a satisfactory manner, but also serve as a guide for the disposal of future These attempts have been so unsuccessful that one is surprised that they are still so lightly entered upon.

cases.

Ex-Secretary Olney has lately1 directed attention to "the indeterminate and confusing" attitude of the United States Supreme Court on the point whether prescribing rates for railroads engaged in national commerce is a legislative function which cannot be delegated by Congress to a commission. The same characterization of the attitude of that court on the conclusiveness of executive decisions might with equal propriety be made.

For instance, in Miller v. Raum,2 we find the rule stated,

"that the courts will not interfere with the executive officers of the government in the execution of their ordinary official duties even when those duties require an interpretation of the law, inasmuch as no appellate power is given them for this purpose."

In Oil Co. v. Hitchcock, we find this statement:

the Secretary, having the duty of seeing that the law is carried out, has jurisdiction to decide its meaning, and it was his duty to decide as he thought the law was, and the courts have no power whatever under those circumstances to review his determination by mandamus or injunction."

1 N. Am. Rev., Oct., 1905.

2

135 U. S. 200.

8

190 U. S. 316.

It would seem from these decisions that an attempt to overthrow a department ruling, however erroneous, as to the rights of parties under the laws, the execution of which had been entrusted to the department, was hopeless; and while this may be the result in practice, the court in the next case, Bates v. Paine, though upholding the department's ruling, was unwilling to do so on the theory of its conclusiveness above stated, and promulgated a new rule, namely:

"That when the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and that even upon mixed questions of law and fact or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, though they may have the power and will occasionally exercise the right of so doing."

It was necessary in Bates v. Paine to abandon the rule of the conclusiveness of the department's decision on matters of law formulated in the preceding cases, inasmuch as the particular decision which was before the court was a reversal of that which had governed the practice of the department on the same matter, and the rights of the parties dealing with it, during the preceding sixteen years. To have held both contradictory rulings conclusive was evidently a greater task than the court was willing to assume.

How long the rule in Bates v. Paine will remain unmodified is of course pure matter of conjecture. As regards questions of mixed law and fact, it would seem to be sufficiently vague to permit the court to interfere or not at its discretion, and is of course valueless in enabling one to determine when decisions of executive officers on such questions are subject to review by the courts. As regards questions of fact, the rule is explicit enough and may cause embarrassment in the future in the case of some peculiarly erroneous finding of fact; but the extent to which the Supreme Court of the United States is prepared to go in upholding legislation which makes the liberty of the citizen dependent on the decision of facts by an executive officer, from which decision there is no appeal to the court (which may be seen from the Ju Toy case),2 is, to say the least, not indicative of an inclination to overthrow executive decisions of fact.

The Supreme Court of Massachusetts, too, has had its troubles in dealing with these perplexing questions, and as a recent decision

of that court1 seems to have introduced a somewhat novel method of solving these difficulties, involving, too, a constitutional question which appears not to have received from the court the attention it merited, a short statement of that case and the rules enunciated by the opinion therein may be appropriate.

In order to appreciate the decision in Commonwealth v. Sisson, a brief review of some of the previous cases is necessary.

In Ela v. Smith,2 for the purpose of deciding that the Mayor of Boston was not liable to an action for having unnecessarily issued an order calling out the military to prevent a mob or riot, his determination of the question whether such mob or riot was threatened was called judicial, the court holding that the statute clearly conferred on the mayor "a judicial power," and laying down this rule at p. 136:

"Whenever the law vests in an officer or magistrate a right of judgment, and gives him a discretion to determine the facts on which that judgment is to be based, he necessarily exercises within the limits of his jurisdiction a judicial authority."

Here we have two things decided:

1. That an executive officer, the Mayor of Boston, may lawfully have judicial power conferred on him and may exercise judicial authority, and that while acting within the fair scope of this authority, he is clothed with all the rights and immunities which appertain to judicial tribunals.

2. That, while possessing all the immunities of judicial tribunals, he is subject to none of the limitations of those tribunals, but exercises his judicial functions without notice or hearing, and subject to no appeal.

The question whether the court properly construed the statute is beside the point. It may or it may not have been the intention of the legislature to confer on the mayor just such powers and immunities as the court found were conferred, nor need we now stop to question the power of the legislature to do this.

The point is simply that the court holds that judicial power may lawfully be conferred on an executive officer, and that, as the term "judicial power" is used in this case, it appears to be as a synonym for absolute or arbitrary power, power the corrupt or negligent exercise of which subjects the holder to no liability,

1 Commonwealth v. Sisson, 189 Mass. 247.

25 Gray (Mass.) 121.

and the correctness of whose exercise cannot be reviewed in any

court.

It was however shortly perceived that the use of the term "judicial" as descriptive of a power of that character was somewhat inappropriate, and in a later case we find the term softened to" quasi-judicial." In Salem v. Eastern R. R. Co.1 the court says:

"There are many cases in which powers of determination and action of a quasi-judicial character are given to officers entrusted with duties of local or municipal administration by which not only the property, but the lives of individuals, may be affected, and which from their nature must be exercised finally and conclusively without a hearing or even notice to the parties who may be affected."

And the case of Ela v. Smith is cited as an instance of the exercise of such a power.

It is not easy to perceive that the matter is much aided by the introduction of the qualifying word quasi. The final determination of a matter without notice to or hearing of those adversely affected by the judgment, and on evidence not under oath or even without any evidence, and on the tribunal's own motion has nothing judicial in its character.

The conclusion reached in Salem v. Eastern R. R., that the action of a local board of health in passing without notice an order for abatement of a particular nuisance was quasi-judicial, and that its finding that such a nuisance existed was conclusive for certain purposes, is reached by premising that it "stands upon similar ground" to general regulations prescribed by such boards, to whose validity no previous notice to parties to be affected by them is necessary." It would seem clear that in the opinion of the court the power under which such general regulations were passed was also quasijudicial.

And this is expressly stated by the court in its opinion in the case of Belcher v. Farrar,2 wherein it is stated that the power vested in boards of health to forbid by general regulations the exercise within their respective towns of any trade which is a nuisance, etc. "is in its nature quasi-judicial"; as

"its exercise necessarily involves the determination of the question whether a particular trade falls within the category contemplated by the legislature

1 98 Mass. 431, 443.

28 Allen (Mass.) 325.