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Published online by Cambridge University Press: 02 September 2013
It is a truism that the response of government to the manifold necessities of modern society has made the state today an organization providing services for the community. In particular, government is regarded as an agency to help alleviate economic disparity and maladjustment. This present development does not mean that the functions of regulation and protection, the traditional concomitants of the police state of the nineteenth century, have ceased to be important. On the contrary, they have increased in magnitude and importance as means of communication and as technical knowledge have increased. Thus the regulation and licensing of the practice of medicine, for example, assume greater importance as medical knowledge increases and as the health problems of the community grow. But the new emphasis of government is indeed on assistance and service to those in need of aid, such as the unemployed, the aged, and the blind.
The new functions of government are in some ways only developments of the old, and the line between regulatory and service developments is not a division between absolutely watertight compartments. In general, a regulatory function is one in which government either directs by regulations of one sort or another the way in which private individuals shall conduct themselves, or else licenses them to carry on certain activities, as found in statutes forbidding industrial homework in certain industries and requiring licenses in others.
1 Dimock, Marshall E., Modern Politics and Administration, Chap. 2, pp. 57–66Google Scholar, makes a fourfold division of the functions of government—protection, regulation, assistance, and service.
2 For discussion of the line of demarcation, see colloquy between SirAnderson, John and Mr.Robson, W. A., in Committee on Ministers' Powers, Minutes of Evidence, Vol. II, Nos. 1264–1294, pp. 89–91.Google Scholar
3 Law and Politics (1939), “The Task of Administrative Law,” p. 234.
4 Cf., however: “Our traditional administrative law theory is enamoured of the distinction between governmental powers affecting private ‘rights’ and those con ferring ‘privileges’ or ‘bounties.’ … In examining the internal structure of our ad ministration in the context of procedural safeguards, a distinction between rights and privileges should not be too strongly pressed.” Jaffe, L., “Invective and Investigation in Administrative Law,” Harvard Law Rev., Vol. 52, p. 1226 (June, 1939).CrossRefGoogle Scholar Cf. Dodge v. Board of Education, 302 U. S. 74, 79(1937); McFarland v. Berber, 32 App. D.C. 513, 521 (1909); Penine v. Reis, 132 U.S. 464, 471 (1889); People v. Westchester Co. Nat'l Bank, 231 N.Y. 465, 468, 132 N.E. 241, 243 (1921), quoted Jaffe, op. cit., p. 1224.
5 Frankfurter, op. cit., p. 235.
6 Title II.
7 Duffus, R. L., “Old Age”, New York Times, Magazine, Dec. 17, 1939, p. 5.Google Scholar
8 Consolidated Laws of New York, Ch. 42, Art. XIV-A, Sec. 124-d, as required by Social Security Act, Title I, Sec. 2 (a) (4).
9 Consolidated Laws of New York, Ch. 42, Sec. 124-f. According to R. Lowe, State Public Welfare Legislation, W.P.A. Division of Research, Research Monograph X (1939), p. 27, less than one quarter of state old age assistance statutes contained such a provision in 1939, while Lansdale, R., Long, E., and Hippie, B., The Administration of Old Age Assistance (1938), p. 298Google Scholar, stated that the number was three at the time of writing their volume.
10 Consolidated Laws of New York, Ch. 67, Art. II, Sec. 21.
11 The Department of Labor must be satisfied that an accident has happened before the presumptions begin to operate. Colins v. Brooklyn Union Gas Co., 171 App. Div. 381 (1916); Kelly v. Nichols, 199 App. Div. 870 (1921); Graffe v. Art Color Printing Co., 191 App. Div. 699 (1920); Woodruff v. Comstock, 186 App. Div. 924 (1918); Daly v. U.S. Trucking Co., 248 N.Y. Rep. 515 (1928). If substantial evidence to the contrary is produced, the burden of proof shifts to the claimant. Magna v. Hegeman Harrus Co., 252 N.Y. 82 (1932).
12 Brown, R. A., The Administration of Workmen's Compensation, p. 58 (1933).Google Scholar
13 Op. cit., p. 35.
14 Message to the Governor Transmitting Report, Legislative Document No. 49, 1929, p. 68.
15 Consolidated Laws of New York, Ch. 67, Art. II, Sec. 20.
16 Ibid., Ch. 31, Art. 18. Sec. 510 (3).
17 Cf. Haines, C. G., “Judicial Review of Findings and Awards in Industrial Accident Commissions,” in Essays on the Law and Practice of Governmental Administration (1935), p. 135.Google Scholar Cf. Ross, F. A., “The Applicability of Common-Law Rules of Evidence in Proceedings before Workmen's Compensation Commission,” Harvard Law Review, Vol. 36, p. 226 (Jan., 1923).CrossRefGoogle Scholar
17a Haines, op. cit., p. 130.
17b Procedure, Mar. 10 and 29, 1939, Division of Placement and Unemployment Insurance, N. Y. State Dept. of Labor, Items. 12, 17, 18; Procedure, Feb. 9, 1938, Secs. 810–816.4. Quoted in Cloe, L., “Disputed Claims Procedure under the New York Unemployment Insurance Law,” Columbia Law Review, Vol. 39, p. 1159 (Nov., 1939).CrossRefGoogle Scholar Similar difficulty had previously occurred in the administration of workmen's compensation. Cf. note 11 supra.
18 Ibid.
19 Ibid. p. 1161, note 46. In some states, the authority to determine claims in the first instance was exercised so as to deprive a claimant of an opportunity for a hearing, as in Louisiana, Vermont, and Virginia, where during the entire year 1938 there was no report of a dissatisfied claimant.
20 Cf. Matschek, W. and Atkinson, R. C., Administration of Unemployment Compensation Benefits in Wisconsin (1939).Google Scholar
21 Ibid., p. 47.
22 Ibid., p. 47.
23 State Pension Department of Wisconsin, Bulletin No. WS-T.-A.D. 11, Apr., 1936.
24 Lansdale, etc., op. cit., Chap. 9, and p. 306.
25 Consolidated Laws of New York, Ch. 42, Sec. 124-d.
26 Connecticut, Public Acts, 1935, Ch. 110.
27 Doheny v. Rogers, 281 U.S. 369 (1930).
28 Cf. Some Factors to Be Considered in Developing Procedures for Fair Hearing, mimeographed statement to the field staff of the division of policies and procedures, Bureau of Public Assistance, Social Security Board, Sept. 30, 1936.
29 Consolidated Laws of New York, Ch. 67, Art. II, Sec. 18.
30 Prokopiak v. Buffalo Gas Co., 176 App. Div. 128 (1916), 95 S.B. 320.
31 Hynes v. Pullman Co., 223 N. Y. 342 (1918); 95 S.B. 315; Combes v. Geibel, 226 N. Y. 291 (1919); 95 S.B. 316; Smith v. Sirf Ap'ts, 253 N.Y. Rep. 542 (1930); 185 S.B. 493.
32 Industrial Board Rules, Rule 7
33 Industrial Board Rules, Rule 8.
34 Procedure, Feb. 9, 1939, Rule 4(b).
35 Act of Dec. 5, 1936, P.L. (1937) 2897 (43s. PS secs. 821), Sec. 501.
36 Susquehanna Collieries Co. v. Unemployment Compensation Board of Review, Superior Ct. of Pa., No. 5, Mar. term, 1940, No. 343, Sept. 27, 1939; affirmed by Supreme Court, Mar. 25, 1940.
37 Letter to the author from the Executive Director, Dec. 12, 1939.
38 Ibid., Jan. 8, 1941. The Director writes: “I now think there is a distinct coordination between the necessity to hold a hearing and an unusual degree of tenacity and in some cases perhaps a psychotic attitude toward all actions by the welfare officials. This is shown in the fact that in three out of these six cases the clients, even after the decisions had been rendered by the highest authority available to them, have continued, in about the same degree, to argue the matter through correspondence with the same range of officials as formerly.”
39 Some Factors to be Considered, op. cit., pp. 3–5.
40 Ibid., op. cit., pp. 3–5.
41 Title I, Secs. 2(a) (4); Title IV, Sec. 402(a) (4); Title X, Sec. 1002(a) (40).
42 Ibid., Title III, Sec. 303(a) (3).
43 Title I, Sec. 4(a); Title IV, Sec. 404 (2); Title X, Sec 1004 (2); Title III, Sec. 303(b) (1).
44 Interstate Commerce Commission v. Louisville & Nashville Ry. Co., 227 U.S. 88, 91 (1913). Cf. Stephens, H., Administrative Tribunals and the Rules of Evidence (1933).Google Scholar
45 Consolidated Edison Co v. N.L.R.B., 83 Law Ed. Ad. Op. No. 4, 31, 140 (1938).
46 Notes 1 and 3 supra; U.S. v. Abilene & S. Ry. Co., 265 U.S. 274, 288 (1924); Lloyd Sabaudo v. Elting, 287 U.S. 329, 339 (1932); West Ohio Gas Co. v. Public Utilities Commission, 294 U.S. 63, 68, 69 (1935); Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 300–305 (1937); Morgan v. U.S., 304 U.S. 1, 14, 15 (1938); Fox West Coast Theatres v. Ind. Commission of Ariz., 7 Pac. (2d) 582, 584 (Ariz., 1932).
47 Waddell George's Creek Coal Co. v. Chisholm, 161 A. 276 (Md. 1932).
48 Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916); Lalier Construction & Engineering Co. v. Ind. Commission, 17 Pac. (2nd), 532, 534 (Colo.) (1932); Lindquist v. Hollor, 178 App. Div. 317, 164 N.Y. Supp. 906 (3d Dept., 1917); Anthus v. Rail Joint Co., 193 App. Div. 571, 185 N.Y. Supp. 314 (3d Dept.; 1920).
49 Interstate Commerce Commission v. Louisville & Nashville Ry. Co. 227 U. S. 88, 91 (1913).
50 Consolidated Laws of New York, Ch. 67, Art. II, Sec. 20.
51 Art. VII, Sec. 118. Cf. Secs. 119, “Subpoenas”; 120, “Fees of Witnesses”; 121, “Depositions”; 122, “Transcripts.”
52 Rule 9. For a full discussion of these hearings, see Hearings under the New York State Workmen's Compensation Law, Commission on the Administration of Justice in New York State, Legislative Document No. 50 (u), (1934).
53 Consolidated Laws of New York, Ch. 78, Sec. 530.
54 Industrial Board Rules, Rule 9.
55 Hearings, op. cit., p. 29.
56 Consolidated Laws of New York, Ch. 31, Sec. 524.
57 Statement of Policy and Method. Fair Hearing. Bureau of Public Assistance, New York State Department of Social Welfare (typed). Cf. Social Service Manual, Chap. 6, “Complaints and Appeals”; Public Assistance Informational Bulletin No. S-19, June 30, 1938.
58 Consolidated Laws of New York, Ch. 67, Art II, Sec. 20; Laws of Wisconsin, 1937, Title VII, Ch. 49, Sec. 49, 28.
59 Letter from Mr. Henry Sayer, deputy executive director, State Insurance Fund, New York, to the president of the New York State Bar Association, Oct. 5, 1939.
60 Cloe, op. cit., p. 1162.
61 Lansdale, op. cit., p. 307.
62 Consolidated Laws of New York, Ch. 31, Art. 18, Sec. 530. The time limit is directory only.
63 Ibid.
64 Lansdale, etc., op. cit., p. 313.
65 Lansdale, etc., op. cit., p. 305.
66 Dancey, Marcia H., “Mothers' Pensions and Aid to Dependent Children Program in Michigan,” Social Service Rev., Vol. 3, p. 651 (Dec., 1939).Google Scholar
67 Industrial Board Rules, Rule 9. A case may be adjourned once at request of an employer or insurance carrier to allow appearance of medical witnesses, but not more than three times. Proceedings must be continued before the same referee who began the case until a final determination awarding or denying compensation is made. Art. II, Sec. 20.
68 Cf. Hearings, op. cit., pp. 33–37, for discussion of the general problem of adjournments in workmen's compensation in New York.
69 Consolidated Laws of New York, Ch. 2, Art. 18; Cloe, op. cit., p. 1172, note 85.
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