Thornbrough v. Williams

Minor W. Millwee, J., dissenting. It is with considerable reluctance that I register my disagreement with the views of the majority in this case. Unquestionably the Legislature was prompted by high motives and a commendable desire to protect and advance the interests of a segment of society woefully in need of such, assistance in the enactment of Act 86 in 1937 when this country was emerging from one of its most disastrous depressions. Also, the present Commissioner of Labor has demonstrated a more conscientious and determined effort to effectively execute the duties and responsibilities of his position than is ordinarily employed. However, we are not concerned with the wisdom and expediency of the act in question, and the sole issue here is power of the Legislature to enact it. In my humble opinion Sec. 2 of Act 86 provides for an unconstitutional delegation of judicial power to an executive officer in violation of one of the fundamental principles upon which our republican form of government rests.

By the use of italics, the majority has done a clever job of minimizing the importance of that part of Section 2 which specifically authorizes the Commissioner, or any person designated by him, ‘ ‘ to inquire into, hear and decide [wage] disputes” and make an “award” based upon ‘ ‘ findings and facts ’ ’ made by him ‘ ‘ after final hearing. ’ ’ Now it must be conceded that the power to hear and determine whether you owe me $200, or nothing at all, for wages earned is strictly a judicial function in that it involves the authority to determine purely legal and contractual rights between private parties.

Article 4 of the Arkansas Constitution declares that all governmental powers are divided among the legislative, executive and judicial departments, and each department is specifically prohibited from exercising any power belonging to either of the others except as expressly permitted in the Constitution. By Article 7 of the Constitution, judicial power is vested in the courts and the jurisdiction to hear and determine simple private contractual rights between individuals is vested exclusively in the circuit and justice of the peace courts, depending on the amount in controversy.

There are numerous situations in which it is not only necessary but entirely proper, in order that government may function, that an executive officer should be vested with some judicial power. But it is only in those instances where such power is necessary to enable them to carry out their executive duties that this is true, unless such power is expressly granted in the Constitution. And this does not mean that an executive officer may usurp a purely judicial function which is exclusively vested by the people in the courts of this state. Nor does it lie within the power of the Legislature to change the nature of a simple judicial function by merely authorizing an executive officer to participate in its performance. Particularly should this be true where the executive agent clothed with such power is not required to be an attorney nor given the power to summon and swear witnesses or exercise other investigative power so essential to a proper performance of the judicial function.

While the precise issue presented here does not appear to have been decided, the New Hampshire Supreme Court in the famous case of Re Opinion of the Justices, 87 N. H. 492, 179 A. 344 , 110 A. L. R. 819, held unconstitutional a very similar act which empowered an executive tribunal to hear and determine disputes arising out of motor vehicle accidents on the state’s highways. After citing state constitutional provisions similar to our own, the court said: “In the connection between the departments some overlapping is permissible, and there is a region of authority, alternative and concurrent, the boundaries of which are fixed by no final rule. As a rule which meets some situations, when an executive board has regulatory functions, it may hear and determine controversies which are incidental thereto, but if the duty is primarily to decide questions of legal right between private parties, the function belongs to the judiciary. Courts of justice, in their popular sense, may not be set up and established in the executive organization. They pertain exclusively to the branch of the judiciary.

“Under this rule the grant or reservation of judicial review of the decisions of an administrative board does not change the character of the decisions. If they are of judicial nature, because performed in the exercise of the strict judicial,function, an undertaking to give authority to the courts to review them and to correct the hoard’s errors of law does not validate the hoard’s authority. An administrative hoard may proclaim only administrative judgments. If they may be judicially reviewed, the right to have them reviewed does not transform them into judicial judgments, although the review and action therein is judicial. But a valid administrative judgment has the same force of obligation and finality as a judicial one. The view sometimes adopted that the right of appeal to the courts, either in wide or limited measure, saves action of an executive board from a valid charge of judicial invasion is not considered to be sound in principle. Authority to correct its errors does not alter the character of its undertaking. ‘ The nature of the final act determines the nature of the previous inquiry.’ Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 227 , 29 S. Ct. 67, 70 , 53 L. Ed. 150 . . . .

“A public interest to set up in the executive department a court of justice does not warrant a violation of the constitutional order prohibiting it. However much the vesting of the control of private litigation in an administrative board may be thought to aid in the maintenance of some public policy, it is not permissible. It is as much forbidden as it is to require a court to take on executive functions. An administrative officer in the discharge of his duties may have occasion to interpret and apply a law in order to enforce it, but he can have no such occasion in order to determine the rights of prívate litigants, since he may not be constitutionally authorized to take jurisdiction in respect to them.

“The consent or willingness of the litigants to submit their disputes to the official or board is beside the point. The Constitution denying the power of the Legislature to confer jurisdiction, it may not be conferred by private authority . . .”

Under these fundamental principles so aptly stated by the New Hampshire court, it seems crystal clear that in any case where the power of an agency is one primarily to hear and determine a simple question of contractual rights between private parties, the function is purely judicial and expressly delegated by the people to the courts. This seems to be the consensus of the authorities generally. 42 Am. Jur., Public Administrative Law, Sec. 60; 73 C. J. S., Public Administrative Bodies and Procedure, Sec. 47. See also, 36 Harvard L. Rev. 422. While the restrictive construction placed on the act by the majority renders it practically useless, still'we are dealing with a basic issue of constitutional government, and if the Legislature may legally do what is done in Act 86, the encroachment on judicial power and the usurpation of authority by an executive bureaucracy might become both limitless and unbearable.

While injunctive relief ordinarily must await the exhaustion of the administrative remedy, such is not the case where the relief sought is against a statute that is unconstitutional and void on its face. 73 C. J. S., Public Administrative Bodies and Procedure, Sec. 45; Shellnutt v. Ark. State Game & Fish Comm., 222 Ark. 25 , 258 S. W. 2d 570 . That is the situation here, and Sec. 2 of Act 86 is fundamentally invalid. It necessarily follows that the chancellor correctly issued the restraining order.