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in the enactment before cited, and requires the officers charged with the duty to use their discretion and judgment in adjudicating on the subjectmatter. This is the decisive test that the authority vested in them is judicial and not ministerial merely.”
Here we have the test carefully stated. It applies equally well to general and to special regulations, - to those which cover all cases of a certain class as well as to those which simply determine a particular case, — and its evident purpose is to distinguish from purely ministerial functions those wherein a discretion is vested in the executive official or board. If such a discretion exists, that is, if the executive official or board is charged with the duty of acting when a certain state of affairs exists, its power of determining whether or not that state of affairs exists is judicial or quasijudicial, and, strangely enough, that determination is held to be conclusive, though made without notice or hearing and subject to no appeal.
In Nelson v. State Board of Health 1 a distinction is made between the two classes of regulations, the general and special, both of which are, by the decision in Belcher v. Farrar, placed on the same ground; and the first class, namely, the general regulations, are stated to be "quasi-legislative," while only as to those made regarding a particular case is the term “ quasi-judicial” retained. To these latter only was it held that the appeal to the jury given by the act under consideration applied. This would seem, aside from the constitutional question to be later referred to, to be rather a felicitous distinction.
The use of the term “ legislative ” is adopted for the general measure applicable to all as a new rule of conduct, and as to which the arbitrary methods of legislative bodies, absence of notice, hearing, or appeal might be deemed suitable, while to the decision of the single case, with its notice, hearing, and right of appeal to a jury, the term “judicial ” or “quasi-judicial” might well apply. It is simply to be noted, however, that this is a complete reversal of the meaning of the term “judicial” or “ quasi-judicial” as used in the earlier cases. It then meant what the term “legislative" is now used to describe.
But let us accept the change as an improvement and see what have been its results.
In Commonwealth v. Sisson the statute provided that:
1 186 Mass. 330, 333.
“If the (Fish and Game] commissioners determine that the fish of any brook or stream in this commonwealth are of sufficient value to warrant the prohibition or regulation of the discharge therein of sawdust from saw mills, and that the discharge of sawdust from any particular saw mill materially injures such fish, they shall, by an order in writing to the owner or tenant of such saw mill, prohibit or regulate the discharge of sawdust therefrom into such brook or stream.”
Under this authority the commissioners made an order reciting that they had determined that the fish in the Konkapot River were of sufficient value to warrant the prohibition of the discharge of sawdust into it, and that the discharge of sawdust from the defendants' mill into said brook materially injured the fish therein, and prohibited them from continuing such discharge. The defendants being prosecuted for failure to comply with the order, contended inter alia that the acts whereby the commissioners determined, (a) that the value of fish in any brook was sufficient to warrant prohibiting the discharge of sawdust therein, and (b) that the discharge of sawdust from any particular mill materially injured the fish in such brook, were judicial acts, and valid only when made under judicial forms, that is, prior notice, hearing and taking of sworn evidence, none of which forms had the commissioners complied with in this case.
The court did not dispute the defendants' contention that all this followed if the order was judicial, but in order to avoid those unpleasant consequences held that the commissioners' order, though a special one and one made to apply to the defendants only, was legislative, and hence valid without notice or hearing, as in legislative proceedings there is no right to either of these. This is not only emphasizing the complete reversal of the doctrine of Ela v. Smith and Salem v. Eastern R. R., where the terms “judicial ” and “ quasi-judicial ” were employed to designate executive orders of this description, but is a decided extension of the meaning of the term “ legislative ” beyond that given by Nelson v. State Board of Health.
Another feature of the difficulty created by the opinion in the Sisson case is this. On p. 254 we find this rule: "... on the one hand, when the law is general and the question is whether under it the defendants are committing a nuisance, the facts are determined by judicial action. On the other hand, the determination of the same facts is legislative, in case the legislature decides to make the thing a nuisance per se. And when it is legislative, it is final, and no hearing is necessary.'
Under this rule, if a board of health, under its general power to abate nuisances, had determined that a nuisance consisting of a pile of decaying fish existed on defendants' premises, and had made the decision without notice to or hearing the defendants, the lawfulness of the act of the board in abating this nuisance might be questioned in an action against it by the defendants. The contrary was determined in Salem v. Eastern R. R.
On the other hand, if the legislature determines to make the presence of a pile of decaying fish a nuisance, and the board finds that such a pile existed on defendants' land, he cannot dispute the correctness of the finding of the board, because it is legislative.
The contrary rule was laid down in Miller v. Horton, where Holmes, J., in delivering the opinion of the court, says at p. 546:
“ Within limits, it (the legislature] may thus enlarge or diminish the number of things to be deemed nuisances by the law, and courts cannot inquire why it includes certain property, and whether the motive was to avoid an investigation. But wherever it draws the line, an owner has the right to a hearing on the question whether his property falls within it, and this right is not destroyed by the fact that the line might have been drawn so differently as unquestionably to include that property. But if the property is admitted to fall within the line, there is nothing to try, provided the line drawn is a valid one under the police power.”
Very likely the court in the Sisson case did not intend to lay down anything contrary to the rule in Miller v. Horton. There was nothing in the case to require the determination of any such point. The correctness of the findings of fact by the commissioners was not disputed, and the intent of the legislature to make those findings conclusive clearly appears. The case presented simply the question of the constitutional power of the legislature to enact such a law, and in view of the fact that the court was of the opinion that the act prohibited (the discharge of sawdust into the brook) was one which the defendants had no legal right to perform except so long as the legislature refrained from prohibiting it, that question would not appear to have been a difficult one.
The objection to the opinion is that in disposing of a comparatively simple case, it unnecessarily promulgates a novel rule on a
1 152 Mass. 540.
point of administrative law, and a rule open to grave constitutional objections which have apparently received no consideration from the court; and that it has introduced an element of serious uncertainty into a problem which the rules laid down in the cases of Miller 7. Horton 1 and Stone v. Heath 2 had done much to render clear.
There remains to be noted the question of constitutional law above referred to. If the powers conferred on the Fish and Game Commissioners were either legislative or judicial, their exercise by an executive board would seem to be expressly prohibited by the Constitution of Massachusetts, Bill of Rights, Art. XXX. :
“In the government of this commonwealth the executive [department) shall never exercise the legislative and judicial powers or either of them. . . to the end it may be a government of laws and not of men."
No mention is made in Commonwealth v. Sisson of this constitutional objection to vesting legislative powers in an executive board, unless it be the brief statement that “the right of the legislature to delegate some legislative functions to state boards was considered by this court in Brodbine v. Revere.” 3
This, of course, was not meant as a statement that the right of the legislature to delegate legislative power to the Fish and Game Commissioners was established by the decision in Brodbine v. Revere, and, in fact, the guarded expressions of that decision fall far short of establishing any such doctrine. The point decided in Brodbine v. Revere was that a regulation of the Board of Metropolitan Park Commissioners limiting the use of parkways was valid, but the court is extremely careful to refrain from deciding that the statute authorizing the park commissioners to make rules and regulations for the government and use of the roadways or boulevards under its care" was a delegation of legislative power to that board, and to suggest that the statute simply leaves to the board the administration of details which the legislature cannot well determine for itself.
Indeed the court suggests that some of the statutes authorizing boards of health to make rules and regulations for the preservation of the public health, which it has been customary to regard as necessary exceptions to the rule above stated, and justified on the principle of local self-government may also be
8 182 Mass. 578.
1 Supra. 4 P. 602.
179 Mass. 385. 6 P. 601.
"justified constitutionally on the ground that the work of the board of health is only a determination of details in the nature of administration, which may be by a board appointed for that purpose, and that the substantive legislation is that part of the statute which prescribes a penalty for the disobedience of the rules which they make as agents performing executive and administrative duties." In other words that the making of even general regulations under statutory authority is an executive and not a legislative function.
This principle, borrowed perhaps from the law of France, to which country we are also indebted for our theory of the separation of the powers of government, would seem to be well established in the jurisprudence of the federal courts interpreting the Constitution of the United States, and its adoption by that of Massachusetts, as suggested by the opinion in Brodbine v. Revere, would certainly tend to avoid needless conflict between legislation and the constitution.
Among the federal decisions see the case of In re Kollock, where a regulation prescribing under the provisions of a revenue act the stamps, makes, and brands to be used on packages of oleomargarine, is said to have been made
“merely in the discharge of an administrative function, and falls within the numerous instances of regulations, needful to the operation of particular laws, authority to make which has always been recognized as within the competency of the legislative power to confer."
Even more closely in point, as showing that under the rule as laid down by the Supreme Court of the United States the acts of the Fish and Game Commissioners in the Sisson case were not the exercise of legislative power, are the cases of Field v. Clark 2 and Buttfield v. Stranahan.3
In Field v. Clark the question was whether an act of Congress permitting the free importation of certain articles, but providing that this privilege should be suspended as to any country producing such articles if the President deemed that such country imposed unreasonable exactions and duties on the products of the United States, was unconstitutional as delegating legislative power to the President.
The court, after laying down the principle that Congress cannot under the Constitution delegate legislative power to the President,
1 165 U. S. 526.
143 U. S. 649.
8 192 U. S. 470.