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The Doctrine of Administrative Trespass

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The Doctrine of Administrative Trespass CHAPTER IX The Doctrine of Administrative Trespass A. IS THERE AN INHERENT JUDICIAL POWER TO PROTECT PERSONS AND PROPERTY AGAINST ADMINISTRATIVE ENCROACHMENTS? HE question whether judicial power necessarily im­ Tplies power to protect persons and property against administrative encroachments can be evaded in the United States by pointing to the Constitution, under which the courts have successfully asserted the power to review ad­ ministrative acts. This power of the courts is commonly based - upon the postulate of the "supremacy of law" and the re­ quirement of "due process of law." But more precise answers to the suggested question may be found in the motives which lie behind the express and implied constitutional guarantees. Penetrating legal analysis has arrived at the conclusion that "legislation and administration, representing the force of collectivism, clash to some extent with the courts, representing the interest of property owners : and the 'rule of law' takes on a deeper significance."1 Moreover, the Supreme Court itself points to its protective mission, reminding that "when funda­ mental rights are in question this Court has repeatedly empha­ sized 'the difference in security of judicial over administrative action.' "2 However, the different conception of the separation of powers with its companion doctrine of differentiated agencies might well be understood to have obviated the performance of an analogous function by the judiciary of France. It is 1 Fuchs, "Concepts and Policies in Anglo-American Administrative Law Theory," 47 Yale L. J. (1938) 538 at 559· . • Crowell v. Benson, ( 1932.) 2.85U. S. 2.2. at 61. 133 134 REVIEW OF ADMINISTRATIVE ACTS therefore of vital importance to observe the doctrine of or­ dinary court protection of civil rights and property which has been unceasingly defended in the face of the postulate of administrative freedom from judicial interference. In the words of Dareste,3 "If the principle of the 'separation of powers' were pushed to its extreme . all rights and liber­ ties of the people would be remitted to the administrative. This was indeed the theory of the revolutionary period; however, it soon became undermined and the entire doctrinal development of the last hundred years is but the history of the conflictbetween the 'separation of powers' and the equally essential principle which places the rights and liberties of the people under the safeguard of the judiciary." But the theory that declares the administrative courts utterly incom­ petent and postulates the ordinary jurisdiction4 for the re­ dress of all administrative invasions of "private constitutional rights" has at times been subject to dispute. Little or no light has been thrown on the origin of the doctrine by any of the conflicting authorities. Its validity has been assailed with considerable force by Jacquelin,5 who denied that it had any influence upon the distribution of jurisdiction between the two sets of courts. On the other hand, a maj ority of the writers who have discussed the subject are unequivocally committed to the contrary view.6 Their statements of the principle, gen- 8 Les voies de recours contre les actes de la puissance publique (x 914), p. 176, note z (italics supplied). • In the absence of statutory provisions to the contrary. • Les principes dominants du contentieux administratif (1899), pp. 8z ff., 97 ff., xo6 ff.At the last page, it is stated : "The foregoing investigations with a view to discovering a general and directive principle have been fruitless, and this failure confirms the observation • . that the distribution of jurisdiction [among the administrative and judicial courts] has been altogether arbi- trary.••• " i 6 Ducrocq, Cours de droit administratif, 7th ed. (x 897), Vol. z, p. 13: "The judicial courts are the guardians of the right of property, and of the security, freedom and status of persons." Aucoc, Conferences sur /'administration et le droit administratif, 3d ed. (x88s), Vol. x, p. 48z: "· ..the judicial courts alone may adjudicate, even DOCTRINE OF ADMINISTRATIVE TRESPASS 135 erally broad and categorical, have a counterpart in many of the decisions of the courts.7 At the same time the adjudication of personal and property rights affected by administrative action has in many instances been reserved for the ordinary courts by express statutory provisions.8 Therefore, in order to determine whether the jurisdiction of the ordinary courts over questions of status, civil liberties and property rights must be considered as original and as having been confirmed rather than made the exception by the various statutes, other factors have to be taken into consideration. But even such adversely to the administrative department, questions relating to the civil status and the domicile of persons, to property rights [and] to servitudes founded on rules of private law." Laferriere, Traite de Ia juridiction administrative et des recours conten­ tieux, zd ed. (I896), Vol. I, p. 5I4: "The civil personality of each member of society . is placed under the exclusive protection of the judicial courts." Ibid., p. 529: "Aside from the civil rights properly so called, there are indi­ vidual rights, legal faculties attached to each person, which are more or less broadly recognized by the constitution and by political laws. Such are : the individual freedom, the freedom of the press, the freedom of work and of in­ dustry, the right to associate [and] the right to assemble. The controversies which may arise from the exercise of these rights, in principle, come within the jurisdiction of the ordinary courts; it is before them that redress for illegal encroachments, be it by third persons or by the administration itself, must be sought." Dareste, p. 247 : "· .. the ordinary courts ...are the natural guardians of the rights of property, of individual freedom and of the rights attached to the person." See also p. 272. Appleton, Traite elimentaire du contentieux administratif (I927), p. I4o: "It is generally recognized that the judicial courts alone are competent to adjudicate questions of status, civil capacity, domicile, violations of individual liberty and other similar rights immediately connected with the exercise of the liberties guaranteed to the individual by the constitution." Ibid., p. I 52: "The courts have affirmed ever so often that the judiciary are the natural guardians of private property." Cf. Moreau, Ll"reglement administratif (I9oz), p. z6o; Duguit, Traite de droit constitutionnel, zd ed. (I923), Vol. 3, p. 30; Bonnard, Precis de droit administratif (I935), p. I58; Waline, Manuel elimentaire de droit adminis­ tratif (I936), p. 52. • See the cases in the Repertoire de ligislation (Dalloz) (I848), Vol. Io, p. 472, No. 138 et seq. ; Supp. (I888), Vol. 3, p. 2661 No. 209 et seq. Also see the cases noted in the digests to each volume of Dalloz, Recueil Periodique, under "C ompitence A Jministrative." 8 Aucoc, Vol. I, p. 48I ff.; Jacquelin, Principes, p. 97 ff.; Repertoire general alphabitique du droit franfais (I894), Vol. u, p. 639, No. 759; Appleton, p. I4o ff. 136 REVIEW OF ADMINISTRATIVE ACTS sources as legislative history and annotations accompanying some of the recorded statutes afford no conclusive test.9 How­ ever, a recent legislative enactment of February 7, I 9JJ,10 sanctioning the exclusive jurisdiction of the ordinary courts in all matters of personal liberty, is of considerable interest in this connection. This law expressly prohibits the adminis­ trative department from claiming jurisdiction over such mat­ ters in the Tribunal des conflits, even though acts of adminis­ trative agents may be involved. The discussion of the motives for the enactment11 makes especial reference to the judicial declarations that the ordinary courts are les gardiens naturels de la liberte individuelle.12 It is also of interest that the Conseil d'Etat at various times has acknowledged the purely declaratory nature of related statutory provisions by holding them to be but individual applications of a general principle�13 The writers who deny that the protection of private rights is peculiarly a matter for the civil courts insist that the juris- 9 See, for example, Duvergier, Collection complete des lois, dicrets, etc., Vol. 33, p. 214, note 2. In connection with the law of June zz, 1833, regulating the organization of the Conseils generaux de departement and the Conseils d'arrondissement--both administrative bodies-it was argued that these elective bodies on general principles must be the judges of the validity of elections held for their formation; "however, they [certain members of the legislature] con­ sented to make an exception to this rule, and to leave to adjudication by the ordinary courts questions relative to the eligibility [civil capacity] of the re­ spective persons, because these questions, of a totally judicial nature, require special knowledge which the council members might lack." [Italics added.] But compare the utterances made in the debates concerning the law of June 30, 1838, regulating the care of the insane. Duvergier, Vol. 38, p. 491 at 512-5 13. Art. 29 of the statute makes provision for judicial inquiry into the legality of the detention of a person in an insane asylum under a decree of the administrative agencies. In regard to this statute it was said that "in the matter of personal liberty there is and can be but one recourse, that is, to the country's judiciary (lajustice du pays) , because it alone offers a genuine guarantee." "' Art. 2 of the act amending the Code d'lnstruction Criminelle. n D. 1933.4.66 at 67, note II. ""Cf. the opinion of the commissaire du gouvernment in L'Action fran�aise v. Bonnefoy-Sibour, D. 1935·3.25 at 28, discussed infra, chap. X, at note 1. "'See Jacqteeli'1 Principes, p. 100; Dareste, pp. 247-248, note 2; decision of the Conseil d'Etat in the matter of Clouet, Rec. 1844.493-94 (question of loss of citizenship) • DOCTRINE OF ADMINISTRATIVE TRESPASS 137 diction of the administrative courts is paramount and can be limited only by express statutory exceptions.
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