Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-26T17:38:14.889Z Has data issue: false hasContentIssue false
  • English
  • Français

Public Agencies and Private Agencies

Published online by Cambridge University Press:  01 August 2014

James D. Barnett
James D. Barnett*
Affiliation:
University of Oregon
Get access Rights & Permissions [Opens in a new window]

Extract

Is there any fundamental distinction between so-called “public” and “private” agencies, officers, institutions, corporations, associations, persons—legal entities and quasi-entities of all sorts? It is the theory of the courts that such a distinction exists, but their attempts through a maze of decisions logically to establish a principle of distinction have been futile.

Several bases of distinction have been adopted by the courts, including, first, the purpose or interest involved. “An office … seems to comprehend every charge or employment in which the public is interested.” Thus “private corporations are those which are created for the immediate benefit and advantage of individuals…. Public corporations are those which are created for public purposes.”

However, it is held that the whole interest in the corporation must be public to make it a public corporation. “Public corporations are political corporations or such as are founded wholly for public purposes and the whole interest in which is in the public. The fact of the public having an interest in the works or property or the object of a corporation, does not make it a public corporation.”

Type
Research Article
Information
American Political Science Review , Volume 18 , Issue 1 , February 1924 , pp. 34 - 48
Copyright
Copyright © American Political Science Association 1924

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 For the present purpose it has been considered sufficient generally to cite only a few illustrative cases.

2 Michael v. State, 163 Ala. 425, 50 So. 929 (1909).

3 Dartmouth College v. Woodward, 1 N. H. 111, 115 (1817).

4 Ten Eyck v. Delaware and Raritan Canal Co., 3 Harr. 200, 203. (1841). See also Dartmouth College v. Woodward, 4 Wheat, 518, 4 Law. ed. 629, 630 (1819); Story, J., ibid. 629, 666, 667; State Bank of Ohio v. Knoop, 16 How. 368, 14 Law. ed. 977, 982 (1853); Baring v. Dabney, 19 Wall. 1, 22 Law. ed. 90, 93 (1874).

5 Bank of the United States v. Planters' Bank, 9 Wheat. 904, 6 Law. ed., 244 (1824); Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 Law. ed. 709, 730 (1837); Curran v. Arkansas, 15 How. 304, 14 Law. ed. 705, 708 (1853); United States v. Strang, 254 U. S. 491, 65 Law. ed. 368 (1921). Contra. Dartmouth College v. Woodward, 1 N. H. 111, 117 (1817); Story, J., Dartmouth College v. Woodward, 4 Wheat. 518, 665, 669, 4. Law. ed. 629, 666, 667 (1819); “What was this corporation in fact? A mere legal entity; a mere agent of the state, existing for the state…. The metaphysical personage only was liable; and the promise [of the corporation], if it is not to be treated as a mere delusion and phantom, was the promise of the state itself through that personage.” Story, J., dissenting, Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 Law. ed. 709, 737, 745 (1837).

6 Ladd v. Holmes, 40 Ore. 167, 184, 66 Pac. 714, 720 (1901). See also Attorney General v. Barry, 74 N. H. 353, 68 Atl. 192 (1907).

7 Munn v. Illinois, 94 U. S. 113, 24 Law. ed. 77 (1877); McCarter v. Firemen's Ins. Co., 74 N. J. E. 372, 73 Atl. 80, 82 (1909).

8 Foster v. Fowler, 60 Pa. St. 27, 30 (1869).

9 Pueblo v. Arkansas Valley Railroad (Co. v.) Taylor, 6 Colo. 1, (1881).

10 Block v. Hirsh, 256 U. S. 135, 65 Law. ed. 865, 870 (1921). “It must be admitted that many things are considered a public use now that were not so considered a half or even a quarter of a century ago, and it may be, and it is probable, that in the not distant future many things which are now considered a private use, by the changing conditions and evolution of business, will of necessity become a public use.” State v. Superior Court for Thurston County, 42 Wash., 660, 85 Pac. 666, 668 (1906).

11 In deciding whether a tax is for a “public purpose,” the courts “must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects have been considered necessary to the support and for the proper use of the government.” Citizens' Savings and Loan Association v. Topeka, 20 Wall. 655, 22 Law. ed. 455, 461 (1875).

12 Ten Eyck v. Delaware Co., 3 Harr. 200, 203 (1841). See also Regents of the University of Maryland v. Williams, 9 Gill. & J. 365, 399 (1838); Rundle v. Delaware and Raritan Canal, 1 Wall. C. C. 275, 290 (1849); Mills v. Williams, 33 N. C. 558, 561 (1850). Cf. Davis, J. P., Corporations, I, 27–32 (1905)Google Scholar; Sabine, G. H., in 29 Philosophical Review, 314 (1920)Google Scholar; Sabine, G. H. and Shepard, W. J. in introduction to Krabbe, K., Modern Idea of the State (Sabine, and Shepard's, trans.), lx (1922).Google Scholar

13 Pollock, F. and Maitland, F. W., History of English Law, I, 230–1 (1903).Google Scholar

14 “Offices, which are the right to exercise a public or private employment, and to take the fees and emoluments thereto belonging, are also incorporeal hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them.” Blackstone, , Commentaries, bk. 2, p. 36.Google Scholar See also Knoup v. Piqua Bank, 1 Ohio St. 603, 616 (1853).

15 Hoke v. Henderson, 4 Dev. L. 1 (1833); Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 623 (1913); Cleveland v. Luttner, 92 Ohio St. 493, 111 N. E. 280 (1915).

16 State v. Dews, R. M. Charlt. 397, 400 (1835); Ex parte Hennen, 13 Pet. 230, 10 Law. ed. 138, 153 (1839); Taylor v. Beckham, 178 U. S. 548, 44 Law. ed. 1187, 1200 (1900); State v. Hendrick, 241 S. W. (Mo.) 402, 422 (1922); 25 Am. Dec. 701. But in the well-established classification of public agencies into offices proper and employments, while property character is generally denied to the former, it is ascribed to a considerable extent to the latter. Wyman, B., Administrative Law, 159–166 (1903)Google Scholar; Goodnow, F. J., Principles of the Administrative Law of the United States, 222–5 (1905)Google Scholar; 25 Am. Dec. 701.

17 Waldo v. Wallace, 12 Ind. 569, 572 (1859).

18 Olson v. Scully, 296 Ill. 418, 129 N. E. 841, 842 (1921). “A clergyman, in the administration of marriage, is a public officer, and in relation to this subject, is not at all distinguished from a judge of the superior or county court, or a justice of the peace, in the performance of the same duty.” Goshen v. Stonington, 4 Conn. 209, 218 (1822).

19 Wood v. Quimby, 20 R. I. 482, 40 Atl. 161, 163 (1893).

20 Trustees of Exempt Firemen's Fund v. Roome, 93 N. Y. 313, 321 (1883). See also Dartmouth College v. Woodward, 4 Wheat, 518, 4 Law. ed. 629, 658 (1819); Georgia Hussars v. Haar, 118 S. E. (Ga.) 563, 564 (1923).

21 Salas v. United States, 234 Fed. 842, 844 (1916). See also Bank of the United States v. Planters' Bank, 9 Wheat. 904, 6 Law. ed. 244 (1824); Hall v. Wisconsin, 103 U. S. 55, 26 Law. ed. 302, 305 (1880); South Carolina v. United States, 199 U. S. 437, 50 Law. ed. 261, 267 (1905); United States v. Strang, 254 U. S. 491, 65 Law. ed. 368 (1921); Sloan Shipyards Corporation v. United States Shipping Board Emergency Fleet Corporation, 258 U. S. 549, 66 Law. ed. 762 (1922).

22 Southern Bridge Co. v. United States Shipping Board Emergency Fleet Corporation, 266 Fed. 747, 750 (1920). See also Ballantine v. Alaska Northern Railway Co., 259 Fed. 183 (1919).

23 Vilas v. Manila, 220 U. S. 345, 55 Law. ed. 491, 495 (1911). “A municipal corporation may perform the functions of a private corporation…. But that by so doing it loses its distinctive municipal character is a proposition that does not require discussion.” Lehigh Water Company's Appeal, 102 Pa. St. 515, 528 (1883).

24 Kippes v. Louisville, 140 Ky. 423, 131 S. W. 184 (1920).

25 There is a “wilderness of law upon the simple but difficult question.” Hartigan v. Board of Regents of West Virginia University, 49 W. Va. 14, 38 S. E. 698, 701 (1901).

26 United States v. Maurice, 2 Brock 96, 26 Fed. Cas. 1211, 1214 (1823).

27 State v. Sheats, 78 Fla. 583, 83 So. 508, 509 (1919). Thus, in a general way “the principal agencies of the administration are its officers, the minor agencies are its employees.” Wyman, B., Administrative Law, 159–60 (1903).Google Scholar See also Bluntschli, J. K., Theory of the State (Ritchie's, trans.), 526–8.Google Scholar

28 Smith v. VanBuren County, 125 Ia. 454, 101 N. W. 186 (1904).

29 “Accepting any or all of the many definitions of public office which have been laid down by the jurists, it is still difficult to say whether a particular position is an office or a mere employment.” Sanders v. Belue, 78 S. C. 171, 58 S. E. 762, 763 (1907).

30 State v. Thompson, 122 N. C. 493, 29 S. E. 720, 721 (1898); Burnap v. United States, 252 U. S. 512, 64 Law. ed. 692, 694 (1920).

31 18 An. Cas. 1063–6, note (1911). A single individual may have a “quasi-public” character. So it is said that “an attorney at law is not indeed, in the strictest sense, a public officer. But he comes very near it.” Robinson's Case, 131 Mass. 376, 379 (1881). See also Bowers v. Bowers, 26 Pa. St. 74, 77 (1856), in regard to an administrator.

32 Chamberlain v. Chandler, 3 Mason, 242, 5. Fed. Cas. 413, 414 (1823).

33 Clearly “public” functions. Ex parte Frazer, 54 Cal., 94, 96 (1880).

34 Burroughs v. David, 7 Ia. 155, 158 (1858). But these arbitrators are not considered “officers” of the state. Farrington v. Hamblin, 12 Wend. 212, 213 (1834).

35 United States Revised Statues, §2324 (1872). The “local customs and rules” of miners in the mining districts of the far west were enforced by the courts before there was any statutory authority for so doing. Jennison v. Kirk, 98 U. S. 453, 25 Law. ed. 240 (1879). Note a somewhat similar status of the rules of a bar association. In re Neuman, 169 App. Div. 638, 155 N. Y. S. 428, 430 (1915).

36 Cf. McBain, H. L., in 36 Political Science Quarterly, 617–41 (1921)CrossRefGoogle Scholar; 8 Virginia Law Review, 450–4 (1922).

37 Salmond, J. W., Jurisprudence (2nd ed.), 31 (1907).Google Scholar

38 Reinsch, P. S., Colonial Government, ch. 9 (1902).Google Scholar

39 People v. New York Society for the Prevention of Cruelty to Children, 161 N. Y. 233, 55 N.E. 1063, 1065 (1900). See also Corbett v. St. Vincent's Industrial School, 177 N. Y. 16, 68 N.E. 997, 998 (1903). “The powers residing in a master over his slave, in a father over his child, and in a guardian over his ward, subserve the same general purposes as the powers of judges and other ministers of justice.” Austin, , Jurisprudence (4th ed.), II, 747.Google Scholar See also Davis, J. P., Corporations, II, 254–5 (1905)Google Scholar; Krabbe, H., Modern Idea of the State (Sabine, and Shepard's, trans.), 124–6 (1922).CrossRefGoogle Scholar

40 “'Tis a rule that where one man hath to do with another man's affairs against his will, and without his leave, that is an office, and he who is in it is an officer.” Counsel in King v. Burell, Carth. 478, 479 (1699); approved in Leigh's Case, 1 Munf. 468, 475 (1810); White v. Clements, 39 Ga. 232, 274 (1869). See also Morrison v. Morey, 146 Mo. 543, 48 S.W. 629, 633 (1898).

41 Cf. Bentley, A. F., Process of Government, 264 (1908)Google Scholar; Cole, G. D. H., Social Theory, 128–9 (1920)Google Scholar; Krabbe, H., Modern Idea of the State (Sabine, and Shepard's, trans.), 124–6 (1922).CrossRefGoogle Scholar

42 Bullock v. Bellheimer, 175 Ind. 428, 94 N.E. 763, 767 (1911). See also Ames v. Port Huron Log Driving & Booming Co., 11 Mich. 139, 147 (1863); Rouse v. Thompson, 228 Ill. 522, 81 N.E. 1109, 1113 (1907); Morton v. Holes, 17 N. D. 154, 115 N.W. 256, 258 (1908).

43 Constitution of Colorado, art. 5, sec. 35 (1876).

44 Columbia Bottom Levee Co. v. Meir, 39 Mo. 53, 57 (1866); Slaughterhouse Cases, 16 Wall. 36, 21 Law. ed. 394, 405 (1873); Parke v. Bradley, 204 Ala. 455, 86 So. 28, 31 (1920).

45 State v. Washburn, 167 Mo. 680, 67 S.W. 592, 595 (1902). See also Parke v. Bradley, 204 Ala. 455, 86 So. 28, 31 (1920).

46 Illustrated by cases involving the powers of taxation and eminent domain.

47 Walling, W. E. and Laidler, H. W., State Socialism (1917).Google Scholar

48 State v. Valle, 41 Mo. 29, 31 (1867).

49 State v. Mackie, 82 Conn. 398, 74 Atl. 759, 761 (1909). “All governmental powers are in their natures either legislative, executive, or judicial…. In that article of the constitution all the powers of the state government are disposed of, and every one who lawfully exercises any state governmental function is able to trace the source of his authority to one of the three departments there named.” State v. Washburn, 167 Mo. 680, 67 S.W. 592, 594 (1902). The constitution itself may be more or less explicit in this matter. “The constitution [art. 2, sec. 2] then is understood to declare, that all offices of the United States, except in cases where the constitution itself may otherwise provide, shall be established by law.” United States v. Maurice, 2 Brock. 96, 101 (1823). See also Burnap v. United States, 252 U. S. 512, 64 Law. ed. 692, 694 (1920). Likewise statute may deny official character. “The fish and game commissioners … are not to be deemed or considered as officers within the meaning of the constitutional provision,” etc. Oregon Laws, §7385 (1920).

50 Dartmouth College v. Woodward, 4 Wheat. 518, 4 Law. ed. 629, 659 (1819). See also Minear v. State Board of Agriculture, 259 Ill. 549, 102 N.E. 1082, 1085 (1913).

51 Hobbes, , Leviathan, ch. 22 (1651)Google Scholar; 8 American Law Review, 189–239 (1874); Davis, J. P.Corporations, I, 27–31 (1895)Google Scholar; Hunting, W. B., Obligations of Contract Clause, Johns Hopkins University Studies in Historical and Political Science, series 37, no. 4, pp. 65–93 (1919)Google Scholar; State v. Bank of South Carolina, 1 Spears 433, 502 (1843).

52 O'Brien, J. Ryan v. New York, 177 N. Y. 271, 69 N. E. 599, 602, 604 (1904.)

53 Underwood v. McDuffe, 15 Mich. 361, 367 (1867).

54 Burroughs v. David, 7 Ia. 155, 159 (1858).

55 Austin, , Jurisprudence (4th ed.), II, 747.Google Scholar A legal right is “a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others.” Holland, T. E., Jurisprudence (11th ed.), 82 (1910).Google Scholar “The private individual claims certain powers of action and the law is the arbiter of the claim; he is required to assume certain obligations and responsibilities for his action, and again it is the law which lays these duties upon him…. Now it is evident that in the modern state the claim of an agency of the government to exercise a given power has just the same sort of foundation as that of the private individual. It is a claim the warrant for which must be found in the law…. The official may or must do things, indeed, in his official capacity which the private citizen may not do, but this is only because the law makes these things Tights and duties of his office.” Sabine, G. H., in 29 Philosophical Review, 315 (1920).Google Scholar

56 “The constitution not only makes them officers but in express terms calls them officers.” People v. McKee, 68 N. C. 429, 434 (1873).

57 Hamilton v. Wright, 37 N. Y. 502, 503 (1868).

58 In the Matter of the Oaths, 20 Johns. 492, 493 (1823). See also People v. Purdy, (Ill.) 135 N.E. 87, 89 (1922).

59 American Law Review, 8, p. 236 (1874).

60 Regents of the University of Maryland v. Williams, 9 Gill. & J. 365, 401 (1838); Thompson v. Lambert, 44 Ia. 239, 243 (1876).

61 Dartmouth College v. Woodward, 4 Wheat. 518, 4 Law. ed. 629, 659 (1819). So for quasi-public corporations. McCarter v. Firemen's Insurance Co., 74 N. J. Eq. 372, 73 Atl. 80, 82 (1909). For the effect of statutory regulation upon the “voluntary” character of political parties see a similar contradiction of views: People v. Democratic General Committee, 164 N. Y. 335, 58 N.E. 124, 126 (1900); Attorney General v. Drohan, 169 Mass. 534, 48 N.E. 279, 281 (1897).

62 Duguit, L., Law in the Modern State (Laski's, trans.), 44–5 (1919).Google Scholar See also Cohn, G., Science of Finance (Veblen's, trans.), 58–76 (1895).Google Scholar

63 Dartmouth College v. Woodward, 4 Wheat, 518, 4 Law. ed. 629, 635 (1819); Neal v. Vansickle, 72 Neb. 105, 100 N.W. 200, 201 (1904).

64 Board of Education of Illinois v. Bakewell, 122 Ill. 339, 10 N.E. 378, 383 (1887).

65 Trustees of Exempt Firemen's Fund v. Roome, 93 N. Y. 313, 321 (1883).

66 University of North Carolina v. Maultsby, 43 N. C. 257, 264 (1852).

67 Jurisprudence (4th ed.), II, 748. But note the distinction between a public trust and a private trust. Pomeroy, J. N., Equity Jurisprudence (3rd ed.), III, 1932–1933 (1905).Google Scholar

68 Jurisprudence (4th ed.), I, 67–72; II, lect. 44.

69 Analysis of the Civil Part of Law, sec. 2.

70 Commentaries, bk. 1, ch. 1.

71 “There is a two-fold division of actions relatively to the persons affected by them. Actions proper to be done or left undone may have reference either to the community or to some individual member of it. And accordingly just and unjust actions may be also of two kinds, referring either to a particular individual or to the community.” Aristotle, , Rhetoric (Welldon's, trans.), 94.Google Scholar

72 Justinian, , Institutes (Moyle's, trans., 4th ed.), 3.Google Scholar“Hujus studii duae sunt positiones, publicum et privatum. Publicum jus est, quod ad statum rei Romanae spectat, privatum, quod ad singulorum utilitatem pertinet.” Imperatoris Justinian, Institutiones (Moyle's 4th ed.), lib. 1, tit. 1.

73 Markby, W., Elements of Law (6th ed.), 151–2 (1905).Google Scholar “The opposed terms public and private law tend … to generate a complete misconception of the real ends and purposes of law. Every part of the law is in a certain sense public, and every part of it is in a certain sense private also. There is scarcely a single provision of the law which does not interest the public and there is not one which does not interest, singly and individually, the persons of whom that public is composed…. Public law … is not distinguishable from any other portion of internal law by its final cause: viz. the good of the public… By ‘the public’ (where it means anything) we mean all the individuals who compose the community, governors as well as governed. In which sense of the word public, all law is public; whether we look to the persons in whom rights or obligations reside, or whether we look to what is, or at least ought to be, the end of law—that end being the good of all.” Austin, , Jurisprudence (4th ed.), II, 750, 756–7.Google Scholar See also Friedlander, A., in Puchta, , etc., Outlines of Jurisprudence (Hastie's, trans.), 143–4 (1887)Google Scholar; Korkunov, N. M., General Theory of Law (Hastings', trans.), 232–3 (1909).Google ScholarContra: Terry, H. T., Some Leading Principles of Anglo-American Law, 619–23 (1884)Google Scholar; Pollock, F. and Maitland, F. W., History of English Law, I, 230–1 (1903)Google Scholar; Mitchell, A. A., in Juridical Review, XVII, 30–42 (1905)Google Scholar; Holland, T. E., Jurisprudence (11th ed.), 124–32 (1910).Google Scholar The situation seems no better when the distinction is somewhat qualified, as in Bowyer, G., Commentary on Universal Public Law, 107–110, 347–8 (1854)Google Scholar, and Pollock, F., First Book of Jurisprudence, (2nd ed.), 92, 96–7 (1904).Google Scholar On this see Austin, , Jurisprudence (4th ed.), II, 750.Google Scholar

74 Cf. Sabine, G. H., in 39 Philosophical Review, 312–3 (1920).Google Scholar

Submit a response

Comments

No Comments have been published for this article.