Judicial Declarations in Property and Tax Disputes, Lecture notes of Administrative Law

Download Judicial Declarations in Property and Tax Disputes and more Lecture notes Administrative Law in PDF only on Docsity! NEW YORK UNIVERSITY LAW QUARTERLY REVIEW VOL. XI DECEIER, 1933 No. 2 DECLARATORY JUDGMENTS IN ADMINISTRA- TIVE LAW EDWIN M. BORCHARD THE declaratory judgment, now adopted in thirty-three Ameri- can states and territories, has demonstrated its value in the speedy and effective determination of numerous controversies involving status, contracts and other written instruments, and property rela- tions. Its utility in the adjudication of conflicting claims between the citizen and the administration, however, a field of litigation to which it is admirably suited, has not been fully appreciated. It is not merely its speed, inexpensiveness, and efficiency which commend the judicial declaration of rights in administrative law, nor yet the fact that it enables disputes to be determined in their incipiency before they have ripened into full-grown destructive battles, and that a decision is obtainable without the prior necessity of a purported violation of law or precarious leap in the dark. It is rather the fact (1) that administrative officials in the performance of their duties or in challenges to the validity of their acts require no coercive remedies or sanctions, but merely a declaration of their legal rela- tions, in order to remain, or be kept, within the bounds of legality; and (2) that the procedural vehicles by which administrative acts are submitted to judicial review, namely, the extraordinary legal remedies and injunction, have accumulated so vast a cargo of techni- calities that the citizen desirous of challenging an administrative power or privilege finds himself frequently engulfed in a procedural EDwD Al. BoRcs.uw is Professor of Law, Yale University, and author of DipLomLAnc PRm'cTiOx or Crrzs ABROAD, Goy'%T imrT LW3 L- n. TORT, and numerous articles on declaratory judgments. Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 139 1933-1934 140 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW bog which bars him from his goal. Nor has the officer under present practice any effective method of himself raising the issue of legality when challenged, but must await the litigating initiative of his adversary. With the growing complexity of government and the constantly increasing invasions of private liberty, with ever widening powers vested in administrative boards and officials, the occasions for con- ffict and dispute are rapidly augmenting in frequency and impor- tance. Yet the very fact that such disputes turn mainly upon ques- tions of law involving the line marking the boundary between private liberty and public restraint, between private privilege and immunity, on the one hand, and public right and power, on the other, makes this field of controversy peculiarly susceptible 'to the expeditious and pacifying ministrations of the declaratory judgment. It is manifest that, when the cumbersome and technical writs of certiorari, injunc- tion, mandamus, quo warranto, habeas corpus, prohibition, are di- rected against public bodies and officials, what is really sought is an adjudication on the law, establishing and determining their powers and privileges. Yet under the antiquated common law notion that courts exist only for purposes of compulsion and condemnation, dis- putes as to legal rights had perforce to be framed in the guise of combats looking to coercion of the defendant. The technicalities with which the law and its practitioners traditionally endow its instrumentalities have encrusted these extraordinary remedies for controlling the administration with a mass of procedural refinements alien to their original purpose and crippling to their efficiency for a twentieth century society, so that a citizen seeking a declaration of the illegality of an administrative act often finds himself enmeshed in the intricacies of certiorari, injunction, mandamus, quo warranto, habeas corpus, or prohibition, and may never reach the substantive goal he has in view. At all events, he has often been forced into a mystic maze, whereas he wished merely to ascertain whether the regulation or order served upon him, or to which he had been sub- jected, is valid or not, or, if valid, what it means. The inconvenience and inexpediency of these coercive remedies against public officials, with all their pitfalls and expense for the complaining citizen and the administration as well, are heightened by the fact that, under a more efficient procedure, they would in most cases be quite unnecessary, for very few officials are likely to violate Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 140 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW erect an arch across a street in New Haven by which two of its buildings would be connected, yet fearing to proceed against con- flicting claims that the structure was not permissible without the consent of the Board of Aldermen and other administrative bodies, brought, instead of mandamus for a permit against some selected official, an action for a declaratory judgment whether the Board of Aldermen or some other municipal body had the power to permit the construction or whether the plaintiff 'was privileged to proceed without special permission.3 Private claimants, for their own se- curity and protection, occasionally require a declaration of the powers of a doubting, questioning, or contesting official defendant, whose activity they invoke.4 In all these cases, as in those to follow, the issue is likely to turn on a matter of statutory construction; but as the point placed in issue is the power or disability to perform specific acts or else the validity or interpretation of administrative action, and only indirectly the statute itself, the subject may conveniently be here discussed. Again, instead of challenging the administrative activity itself, as such, the validity or legality of its result may be the point in direct issue for declaration, e.g., that public bonds, resolutions, contracts, notices, etc., are illegal or, if the action is initiated by ment for public works); Attorney-Geniral ex rel. Ocean Steamship Co. v. Wright, 49 T. L. R. 6 (Ch. 1932) (extent and exercise of statutory price-fixing powers of de- fendant administrative board, here contended to have been illegally exercised) ; IBiyor of Wellington v. Wellington City Improvements Loan Sinking Fund Com'rs, 29 N. Z. 300 (1910) (whether defendants were "trustees" and privileged to invest certain funds and whether plaintiff privileged to give directions); Public Trustee v. Auckland Hosp. & Charitable Aid Board, 30 N. Z. 1014 (1911) (whether borrowing powers of defendant had been abridged by two statutes and what they were and whether it had power to enter into certain agreement); Mayor of Wellington v. Attorney-General, 33 N. Z. 1458 (1914) (whether Governor's power to designate "roads" applied to boroughs); Controller & Auditor-General v. Eltham Drainage Dist. Bd., [1919] N. Z. 732 (whether defendant had powers of County Council to pay travelling expenses, involving statutory construction); Auckland City v. One Tree Hill Borough, [1933] N. Z. 162 (whether plaintiff or defendant-authority had the right to tax certlin property on the boundary between them). 'Yale University v. City of New Haven, 104 Conn. 610, 134 Atl. 268 (1926). The judgment, in addition to declaring that the Board of Aldermen had the power, also, on request, declared the proposed use reasonable, thus directing or guiding the Board in its grant of the permit. The advantages of such a clarifying proceeding over the traditional devices require no comment. 'In re Caldicot & Wentlooge Act, 1884, [19201 2 Ch. 463 (that defendant Com- missioners had powers which they doubted); John Fuller & Sons v. Mayor of Welling- ton, 32 N. Z. 41 (1913) (whether defendant could accept the surrender of certain leases and grant plaintiff new leases, subject to conditions) ; Williamson v. Auckland Hosp. & Charitable Board, 33 N. Z. 1048 (1914) (whether plaintiff, one of defendant's lessees, could rely on her old lease, whether later statutes had changed the defendant's leasing powers, and whether plaintiff could elect the statute upon which reliance was to be placed). Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 143 1933-1934 144 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW the issuing body, legal. The jural relation involved may not always be clearly stated in the petition, or may be stated in combined or alternative form that defeats exact classification. For example, the plaintiff's privilege to act without interference may appear as the administration's no-right to prevent, e.g., to refuse a permit, or its duty to grant it. The defendant-commission's activities may be challenged in the guise of its duties, no-rights, disabilities, or liabili- ties, or of the plaintiff's rights, privileges, powers, and immunities, or some combination of these jural relations. The following classi- fications have usually selected for topical treatment the principal jural relation involved, and the use of the term "powers" is an alter- native for jurisdiction and statutory authority. While the ascertainment of the extent of public powers for purposes of certainty and security accounts for numerous cases, especially when instituted by the administration itself, very fre- quently the issue is raised, in the form of an attack upon, or chal- lenge of, a power, already exercised or prospective, at private or public initiative. The challenge may go to the jurisdiction of the administrative body or to its exercise of functions in general or par- ticular. In Anglo-American jurisdictions, administrative tribunals have not yet obtained the authority to issue declarations as such, though the effect of their ruling is often purely declaratory; but in several of the states of Germany, such as Wiirttemberg, Baden, Hamburg, and Bremen, the general power to render declaratory judgments is vested in administrative courts. In Prussia, Bavaria, and Saxony, a special power to render declaratory relief is embodied in certain statutes, relating in the main to disputes arising out of the care of streets, highways, watercourses, and the delimitation and distribution of communal burdens of many kinds. There is mani- fest a growing tendency by statute and decision to expand the power of administrative tribunals to render declaratory judgments.6 The question whether the administrative authority has or had jurisdiction over the issue is, as a rule, purely a question of law and TrAum, DiE FESTSTELLuNGSKLAGE UND n= ZuLAssIoKrr nT DEN VERWALTuNaS- sTREnTERAHREN PRIEussENs, BAYERNS, SACHSENS, WORTTEMERGS UND BADnS, Dliss. HEIDELBERG (1926); SEDEL, DiE FESTSTELLUNCSMaAGE nI CIV-UND VERWALTUNOS- PROZESS (1893). See also Prussia, OBERVERWVALTUNOSGERICUIT (Feb. 20, 1919)1 20 DAB RECHT no. 304; Hamburg OVG. Dec. 29, 1922, 23 HAxSEAT. RECITSZTO. 196; Prdssha, 78 OVG. 350-351 (Jan. 11, 1923) (enumerating several statutes in which administrativo courts are authorized to make declaratory judgments). The ruling that theso dcc- sions are not limited by all the requirements of a declaration under § 256, C.PO, Is criticized by TRAum, op. cit. supra, at 62 et seq. Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 144 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW lends itself more readily to speedy determination by declaration than by the more involved methods of certiorari, injunction, quo war- ranto, or prohibition. In Australia and New Zealand, the matter has frequently arisen with respect to the jurisdiction of the arbitra- tion and conciliation tribunals for industrial disputes, where it is presented by way of case stated for the opinion of the High Court. The authority of other boards and commissions has been similarly questioned. The issues have involved the validity of the constitution of the court or commission, 6 its jurisdiction over parties7 or subject- matter,' and its power to undertake specific acts.0 With the rapid growth in governmental control of industry in the United States, the necessity for the speedy adjudication of administrative issues be- tween private industry, labor, and the administration will inevitably 'Waterside Workers' Federation of Australia v. J. W. Alexander, Ltd., 2S C. L. R. (Aust.). 434 (1918) (because President appointed for seven years only). 'Australian Workers' Union v. Adelaide Milling Co., 26 C. L. R. (AusL). 460 (1919) (industrial disputes relating to states); Merchant Service Guild of Austrahisa v. Commonwealth Steamship Owners' As'n (No. 2), 28 C. L. R.. (AusL). 436 (1920) (jurisdiction as between plaintiff and various respondents); Federated Seamen's Union of Australia v. Commonwealth Steamship Owners' A&'n, 30 C. L. R. (Aust.). 144 (1922) (seamen's wages). Cf. Savic v. City of New York, 203 App. Div. 81, 196 N. Y. Supp. 442 (1922) (jurisdiction of state court challenged by foreign consul, whose exequatur had been withdrawn after alleged crime was committed). 'Federated Municipal & Shire Council Employees' Union v. Lord Mayor of Mlel- bourne, 26 C. L. R. (Aust.). 508 (1918) (jurisdiction to make award); Federated Clothing Trades of the Commonwealth of Australia v. Archer, 27 C. L. R. (Aust.). 207 (1919) (whether case involved "industrial dispute"); Federated Gas Employees' Industrial Union v. Metropolitan Gas Co., 27 C. L. R. (Aust.). 72 (1919) (same; and whether it had jurisdiction over certain claims); Ince Bros. v. Federated Clothing & Allied Trade Union, 34 C. L. R. (Aust.). 457 (1924) (same). 'Merchant Service Guild of Australasia v. Commonwealth Steamship Ovners' Ass'n, 27 C. L. R. (Aust.). 560 (1920) (whether court had power to do more than fix minimum -wage, etc.); Federated Engine-Drivers' & Finemen's Ass'n v. Adelaide Chemical & Fertilizer Co., 28 C. L. R. (Aust.). 1 (1920) (power to do certain enumer- ated acts); Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Ass'n, 28 C. L. R. (Aust.). 209 (1920) (power to do certain things with regard to minimum wage payments); British Imperial Oil Co. v. Federal Com'r of Taxation, 35 C. L. R. (Aust.). 422 (1925) (power of tax Board of Appeal in considering evi- dence, making assessments and forming independent opinion); Morgan v. Rylands Bros., 39 C. L. R. (Aust.). 517 (1927) (that certain award was not award of Con- diation Committee); New Zealand Educational Institute v. Marlborough Ed. Board, 28 N. Z. 1091 (1909) (term of employment of teachers by Board); In re Nev, Zealand Educational Institute, 30 N. Z. 858 (1911) (authority of Board of Education to exclude from high schools children below certain standard); Co-operative Fruitgrowers of Otago v. Central Produce Mart, Ltd., (1918] N. Z. 610 (interpretation of rules of savings society, concerning power to loan and borrow money); Cunningham v. Takapuna Tramway & Ferry Co., [1921J N. Z. 22 (interpretation of Order in Council to construct tramway, validity of delegation to defendant, service to be given, and making of by-laws); Sarten v. Aotea Dist. Maori Land Board, [1922] N. Z. 5S86 (whether native, by leasing, could render himself landless and board's powers in con- firming leases); In re Otago & Southland Brick, Tile & Pottery M"akers' Award, [1930] N. Z. 321 (whether arbitration court could make award as to maximum working hours beyond those named in statute). Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 145 1933-1934 14s NEW YORK UNIVERSITY LAW QUARTERLY REVIEW The Attorney-General as representative of the public has fre- quently had occasion to challenge by declaration the validity or legality of administrative acts. A taxpayer alone in many jurisdic- tions is not a proper party plaintiff for this purpose1 so that the law-enforcing officer has generally in English-speaking countries the authority to challenge, by quo warranto and other extraordinary remedies but also by the more convenient declaration, the legality of administrative action. In the few illustrations here cited, the declaration has been employed to claim the disability to under- take specific acts, such as carrying on certain types of busines, 1 incurring certain expenses,18 or performing certain acts or func- tions. 19 In most states of the United States, and practically always in American municipalities, a taxpayer is deemed to have sufficient legal interest to prevent by injunction the improper or illegal ex- penditure of public funds, without invoking the actual or pro forma aid of an attorney-general as party plaintiff. A fortiori, therefore, he has sufficient interest to request declaratory relief against such expenditure or activity, whether in the form of a proposed or signed contract, or otherwise.2" Question may be raised, however, whether, 1 Attorney-General v. Fulham Corp., (1921] 1 Ch. 440 (to carry on a laundry business) ; Attorney-General v. Liverpool Corp., [1922] 1 Ch. 211 (to carry on busi- ness of wiring houses); Attorney-General v. City of Leeds, [1929] 2 Ch. 291 (to run omnibusses beyond city limits; injunction also asked, but refused); Attorney- General v. Smethwick Corp., [1932] 1 Ch. 562 (to carry on bookbinding busines). 1 Whitthorne v. Turner, 155 Tenn. 303, 293 S. W. 147 (1927) (County Judgo sues to establish invalidity of appropriations increasing County Superintendent's sal- ary); Attorney-General v. Thomson, [1913] 3 K. B. 198 (to defray expen.es of de- fending their judgment as compensation authorities); Attorney-General v. Liverpool Corp., supra note 17 (to use capital for unpermitted business); Attorney-General v. Merthyr Tydfil Union, [19003 1 Ch. 516 (to establish and maintain relief yards for able-bodied miners capable of supporting themselves-but injunction denied); At- torney-General v. Guardians of the Bedwelty Union, 44 Sol. J. 328 (Ch. 1900) (same); Attorney-General v. Bermondsey Guardians, 40 T. L. R. 512 (Ch. 1924) (same; jurisdiction held not ousted, although Auditor had charged Guardians with improper expenditure); Attorney-General v. Poplar Guardians, 40 T. L. R. 752 (Ch. 1924) (same). "City of Louisville v. Board of Education, 229 Ky. 325, 17 S. W. (2d) 210 (1929) (to use funds raised "to erect" school-house, to "furnish and equip" it); Attorney- General v. Shoreditch Corp., [1915] 2 Ch. 154 (to enter into certain lease with de- fendants); Attorney-General v. Westminster City Council, [19241 1 Ch. 437, aff'd, [1924J 2 Ch. 416 (to use library building for administrative purposes); Attorney-Gen- eral v. Sunderland Corp., [1930] 1 Ch. 168 (to provide a parking place for cars at certain place); Commonwealth v. Australian Commonwealth Shipping Board, 39 C. L. R. (Aust.) 1 (1926) (that agreement was tra vires and expenditure of capital Im- proper); Attorney-General ex rel. Cooke v. Wellington City Corp., [1916J N. Z. 981 (to keep a separate account for its tramway expansion). 'Jones v. City of Corbin, 227 Ky. 674, 13 S. W. (2d) 1013 (1929) (validity of contract for leasing waterworks, to be paid for in certain ways) ; Kirkpatrick v. City Board of Ed. of Russellville, 234 Ky. 836, 29 S. W. (2d) 565 (1930) (validity of Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 148 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW after the project has been begun-when on suit for injunction a more definite interest in the plaintiff than that of a general taxpayer has been required 2 "-a taxpayer's declaration is similarly obtainable. It is believed that the question of "legal interest" is in principle independent of the form of relief prayed, and that, while the equi- table conditions of injunctions are not required for a declaration, there is no reason to suppose that declaratory relief justifies any modification of the requirements of the forum in the matter of "legal interest" in the action. Instead of alleging the disability of the administrative official to undertake a specific act, it is quite as common for the com- plainant (victim, attorney-general, or taxpayer) to demand a decla- ration that the resulting instrument-resolution, regulation, notice, or order, etc.-is ultra vires and void. The issue will in general in- volve statutory construction, as in the cases already mentioned. The attack may go to the corporate resolution as such or, for example, to a bond issue floated as a consequence,3 or to adminis- financing plan for school-taxpayer's action); Bridges v..Scott County Bd. of Ed, 235 Ky. 141, 29 S. W. (2d) 594 (1930) (same); Button v. Trimble County Bd. of Ed., 235 Ky. 771, 32 S. W. (2d) 345 (1930) (validity of school merger); Holman v. Glasgow Graded Common School Dist., 237 Ky. 7, 34 S. W. (2d) 733 (1931) (valid- ity of plan for organizing non-profit corporation to build school, to be paid for by bond issue and liquidated, as means of escaping District's debt limit) ; Godsey v. Board of Ed. of Ludlow, 238 Ky. 17, 36 S. W. (2d) 656 (1931) (alleged disability to convey funds to bank as trustee in connection with plan as in preceding ca.e); Lynn v. Kearney County, 121 Neb. 122, 236 N. W. 192 (1931) (to contract for roads with ad- joining township); Ward v. Klamath County, 108 Ore. 574, 218 Pac. 927 (1923) (to contract for courthouse on leased land); Paterson v. Karori Borough, [1917] N. Z. 675 (whether defendant could create a sinking fund for purchase of equipment or only to service bonds. Apparently taxpayer's action). The interest of a taxpayer in the proper expenditure of federal moneys is too "minute and indeterminable" to enable him to raise the issue judicially. Massachusetts v. Mellon, 262 U. S. 447, 487, 43 Sup. Ct. 597, 601 (1923). 'Lyons v. School Dist. of Joplin, 311 Mo. 349, 278 S. W. 74 (1925); Richard- son v. Kildow, 116 Neb. 614, 218 N. W. 429 (1928). The interest of a private citizea seeklng to oust a public official must be greater than that of a general member of the public. Newman v. United States ex rel. Frizzell, 238 U. S. 537, 35 Sup. Ct. SSl (1915) ; Blanchard v. Norman, 164 La. 433, 114 So. 87 (1927). 'Craig, City Comptroller v. Commissioners of Sinking Fund, 203 App. Div. 412, 203 N. Y. Supp. 236 (1924) (to sell property without plaintiWs assent); Notley v. London County Council, [ 915J 3 K. B. 580 (to dismiss the plaintiff from office); Attorney-General v. Guardians of the Poor Law Union of Tynemouth, (1930] 1 Ch. 616 (cancelling debts due to defendants [by taxpayer actually]); Attorney-General v. Birkenhead Corp., 27 L. G. R. 192, 93 J. P. 33 (Eng. 1929) (resolution void, and illegal to act upon it); Law v. Ottawa Public School Board, [1928] 4 D. L. R. (Ont.) 483 (dosing school--taxpayer's suit); Atenata Wharekiri v. Ikaroa Dist. Maori Land Board, 31 N. Z. 477 (1912) ( to sell land); Karena Rawhi v. Tairawhiti Dist. Maori Land Board, 32 N. Z. 1 (1913) (confirmation of resolution void); Boyd v. Mayor of Wellington, [1924] N. Z. 1174 (proclamation vesting plaintiffs land in defendant).dPolard v. City of Norwalk, 108 Conn. 145, 142 At. 807 (1928) (statutory con- ditions not observed [taxpayer); State ex rel. Baird v. Board of Com'rs of Wyan- Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 149 1933-1934 150 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW trative regulations, 24 notices,25 orders,26 or specific acts, such as an attempted requisition,27 an award,281 agreement,2 sale,30 registra- tion,31 seizure.2 ADMINISTRATION SEEKS DECLARATION OF ITS OWN DISPUTED POWER ADmINISTRATIVE authorities find in the declaration a protection against mistaken or illegal conduct and against the resulting pen- dotte County, 117 Kan. 151, 230 Pac. 531 (1924) (county bond void); Coke v. Shanks, 209 Ky. 723, 273 S. W. 552 (1925) (obligations and warrants issued by de- fendant highway commissions); Pace v. City of Paducah, 241 Ky. 568, 44 S. W. (2d) 574 (1931) (proposed bond issue [taxpayer]). The issuing authority may of course, if challenged extrajudicially, sue for a declaration that its bond issue is valid. Fidelity Nat. Bank & Trust Co. v. Swope, supra note 1; City of Muskegon Heights v. Danigelig, 253 Mich: 260, 235 N. W. 83 (1931). These declaratory actions are in effect bond validating suits, which are authorized in certain states, such as California, Florida, Georgia and Mississippi. 2'China Navigation Co. v. Attorney-General, [1932] 2 K. B. 197 (by which own- ers were to pay for police protection against pirates); London Ass'n of Shipowners & Brokers v. London & India Docks Joint Committee, [1892] 3 Ch. 242 (as to loading ships and use o fdocks); Burkard v. Oakley (Commonwealth Public Trustee), 25 C. L. R. (Aust.). 422 (1918) (to sell enemy-owned shares); Newcastle & Hunter River Steamship Co. v. Attorney-General, 29 C. L. R. (Aust.). 357 (1921) (schedules); Cowan v. Solicitor-General, [1924] N. Z. 108 (promotion of members under Railway Act). 'Carlton Main Colliery Co. v. Hemsworth R. D. C., [1922] 1 Ch. 521, afj'd, 2 Ch. 609 (notice that plaintiffs were permitting nuisance); Gross, Sherwood & Heald, Ltd. v. Essex County Council, [1927] 1 Ch. 205 (notice of appointment of succeqor arbitrator); Hutton v. Attorney-General, [1927] 1 Ch. 427 (military certificate that taking of plaintiff's land necessary) ; Whyte, Ridsdale Co. v. Attorney-General, (1927] 1 Ch. 548 )Board of Trade notice as to import licenses); New South Wales v. Com- monwealth (No. 3), 46 C. L. R. (Aust.). 246 (1932) (notices on banks to execute Act authorizing Commonwealth to pursue funds belonging to delinquent state). 'Arlidge v. Hampstead Metropolitan Borough, [1916J 1 Ch. 59 (closing order); Zeigler v. City of Victoria, 30 B. C. 389 (1921) (dismissal from fire department); Cross v. Commonwealth of Australia, 29 C. L. R. (Aust.) 219 (1921) (cancelling com- mission in army); Bradshaw v. Commonwealth of Australia, 36 C. L, R. (Aust,), 585 (1925) (order retiring plaintiff). 'China Mut. Steam Navigation Co. v. MacLay, [1918] 1 K. B. 33. 'Villeneuve v. Rural Municipality of Kelvington, [1929] 2 D. L. R. (Sask.) 919. "Anderson v. Commonwealth of Australia, 47 C. L. R. (Aust.) 50 (1932) (sugar agreement between federal and state government challenged by taxpayer. Dlsmilqcd for lack of plaintiff's interest, citing Massachusetts v. Mellon, supra note 20). The administrative body may sue to establish the validity of its challenged contract (Fidel- ity Nat. Bank & Trust Co. v. Swope, supra note 1) or the validity or invalidity of terms or conditions in contracts. See Village of Gross Pointe Shores v. Ayrcs, 254 Mich. 58, 235 N. W. 829 (1931) (validity of conditions placed in deeds to plaintiff by defendant). So, contractors with administrative bodies, whose contract is challenged, may, to relieve their uncertainty and proceed with assurance, sue for a declaration of its validity. Woodward v. Fox West Coast Theaters, 36 Ariz. 251, 284 Pac. 350 (1930). °Summerland Development Co. v. Corporation of Dist. of Summerland, 40 B. C. 142 (1928) (sale of property for delinquent taxes). 3LAttorney-Genera for New South Wales ex rel. Tooth & Co. v. Brewery Employes Union, 6 C. L. R. (Aust.) 469 (1908) (registration of workers' trade-marks). 'O'Boyle v. Attorney-General, (1929] Ir. R. 558 (arrest of plaintiff on con- viction by English court martial); James v. South Australia, 40 C. L. R. (Aust.) 1 (1927) (seizure of plaintiff's fruit). Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 150 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW questions of form and classification 8 Whereas issues directly chal- lenging statutes are not here discussed,39 the questions presently considered place more directly in issue the validity and extent of administrative authority thereunder, raised by the official body itself. Administrative officers often have occasion to assert or to ques- tion their power to make payments of a particular kind, under special conditions4' or to certain persons; 4 ' to demand or require taxes, rates, fees, deposits, or other money;' and to control the -road commissioners to determine which authority must pay for rights of way, and -whether county bond proceeds available); Oroua Land Drainage Board v. Sluggish River Drainage Board, 32 N. Z. 802 (1913) (financial obligations of each district for obligations of old one from which they had been formed); Bruce County v. Lakes Drainage Dist., [1918] N. Z. 806 (whether costs of erecting new canal, instead of repairing old one, could be thrown on defendant); Waimairi County v. Paparua County, [1919] N. Z. 85 (apportionment of costs in "maintaining" road). 'City of Chester v. Woodward, 13 D. & C. 201 (Pa. 1929) (whether improvement bonds issued based on special assessments was "incurring" or "increasing" indebted- mess, requiring approval of certain administrative official. See opinion of Fox, J, and note, at 203: "Considerable delay may be caused in the various steps of certifi- cation and appeal as provided for in the Act of 1927 .... Avoidance of delay is within the spirit of the (declaratory judgments] act. It is important to the many municipalities within the Commonwealth to have this controversy decided at an early date!'). 'These cases will be discussed elsewhere. '-West Midlands Joint Electricity Authority v. Pitt, [1932J 2 K. B. 1 (plaintiffs' power to determine method of compensation to defendant for rights of way); In re Australian Metal Co., Ltd., 33 C. L. R. (Aust.) 329 (1923) (whether certain claim- ants against company under alien property sequestration were entitled to interet); Wellington City Corp. v. Compton, [1916J N. Z. 779 (validity of street plan and defendant landowner's right to obtain compensation); Auckland Harbour Board v. Rex, [11919] N. Z. 419 (duty to pay for land taken, without deduction for payments to lessee). 'Graham v. England, 154 Tenn. 435, 288 S. W. 728 (1926) ; State ex tel Barham v. Graham, 161 Tenn. 557, 30 S. W. (2d) 274 (1930) (comptroller of state, not kno.7- ing to which of three competing judges to pay salary of office, sued for declaration of his duty, thus obtaining protection against erroneous payment); Wimbledon & Putney Commons Conservators v. Tuely, [1931J 1 Ch. 190 (plaintiffs' power to pay future pensions to different classes of employees, which would affect amount of taxes to be levied. Defendants, representative of taxpayers); Wellington Harbour Board v. Solidtor-General, 31 N. Z. 1008 (1912) (whether plaintiff could make provision for retiring allowances of special employees). 'Chesapeake & Ohio R. R. Co. v. City of Morehead, 223 Ky. 698, 4 S. W. (2d) 726 (1928) (a contractor had refused to proceed with public improvements until the city's power to levy an essessment on Railroad had been made dear. Railroad had dedicated land to city and claimed future tax exemption, whereupon city sued for declaration); Lewis, Sec. of State v. Oscar C. Wright Co., 234 Ky. 814, 29 S. W. (2d) 566 (1930) (whether plaintiff may permit filing of amended articles of incor- poration, authorizing issue of no-par stock and allocation of proceeds of sale as directors decide); Johnson City v. Clinchfield R. R. Co., 163 Tenn. 332, 43 S. W. (2d) 386 (1931) (whether taxes were collectible in district annexed by statute); Ford Shipping Line, Ltd. v. Superintendent of Mercantile Marine, 29 N. Z. 679, 635 (1910) (deposit for medical expenses of seamen. Suit by shipping line to recover. Dictum: "The question appears .. . to be one of those in which the Marine De- partment might well consider the advisability of obtaining concdusive adjudication under the... Declaratory Judgments Act, 190"); Wellington Harbour Ferries v. Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 153 1933-1934 154 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW distribution or deposit of public funds.43 The power to contract obligations4" and to limit or ascertain their extent4 is occasionally placed in issue by a city or administrative authority. Administrative officials not infrequently seek a declaration of their challenged power to regulate particular industries or prop- erty46 and, in order to escape the consequences of mistake, to take action cutting off private rights, such as the sale of land or per- sonalty for delinquent taxes,47 the power to take land for alleged Wellington Harbour Board, 29 N. Z. 729 (1910) (to make distinctions as to fees payable by ferries using various routes and wharves) ; Mayor of Wellington v. Attor- ney-General, 33 N. Z. 392 (1913) (whether plaintiff could recover money due under tax statute; whether instalments so recoverable); Southland Elec. Power Board v. Attorney-General, [1926] N. Z. 408 (plaintiff's power to levy special taxes without regard to benefit, and without describing boundaries of property ass eed). "'Waihemo County Council v. Auditor-General, [1921] N. Z. 233 (proper distribu- tion of fees between tax district and county); Auckland City Sinking Funds Com'ra v. Mayor of Auckland, [1922] N. Z. 48 (proper distribution of sinking fund); Huntly Town Board v. Registrar of Supreme Court of New Zealand, [1924) N. Z. 897 (distribution of proceeds of sale of property sold for non-payment of taxes); In re Application of School Dist. of Steelton, 31 Dauph. Co. Rep. 75 (Pa. 1927) (whether statutory limitations of deposits in single depositary applied to sinking fund of district). See Kan. Acts 1933, c. 164, § 4, providing that county treasurer, beforo prorating back to taxing districts amounts tied up in closed banks, shall seek a declaratory judgment against all the taxing districts determining the amount due, "Fidelity Nat. Bank & Trust Co. v. Swope, supra note 1 (action by city to estab- lish validity of special assessment and improvement bonds issued thereunder); City of Sturgis v. Christenson Bros. Co., 235 Ky. 346, 31 S. W. (2d) 386 (1930) (whether subsequent statute prevented the issue of bonds as planned); City of Muskegon Heights v. Danigelis, supra note 23 (validity of bonds for relief of the destitute). 'Hadham Rural D. C. v. Crallan, [1914] 2 Ch. 138 (that plaintiff was privileged to refuse to supply water beyond amount agreed when contract was concluded); In re Dieckman, [19181 1 Ch. 331 (comptroller of leased enemy property seeks, after liquidation, to determine whether there are any obligations which lesor could under lease require of him in future); Manchester Corp. v. Audenshaw U. D. C., [1928] Ch. 127 (that they were bound only to maintain road in condition of repair for traffic in 1878, when statute passed, and not in condition to sustain modern traffic. No other remedy here available to plaintiffs); Broadview v. Saskatchewan Co-op. Creameries, [1928] 1 D. L. R. (Sask.) 1119 (plaintiff town seeks declaration that it is not obliged to furnish defendant electric power under contract, as It was -dtra vires); In re Australian Metal Co., 29 C. L. R. (Aust.) 347 (1921) (Comp- troller of Enemy Property sues to determine whether a certain claim against his controlled liquidated firm should be admitted by him); Mayor of Karori v. Aus- tralian Mut. Prov. Soc., 30 N. Z. 438 (1911) (whether bond form could be changed by mayor, after election); Petone Borough v. Lower Hutt Borough, [19181 N. Z. 844 (whether city could vary contract price owing to increased rates). "cTruro Corp. v. Rowe, [1901J 2 K. B. 870, rev'd, [1902] 2 K. B. 709 (to regulate oyster fisheries and lease land, and to nullify defendant's alleged customary privilege of user. Trespass sued for, but only declaration given); Port of London Authorltv v. Cairn Line of Steamships, Ltd., [19131 1 K. B. 497 (that plaintiffs have sole privi- lege of weighing and measuring grain discharged on certain docks. Injunction also asked, but refused, because the court "had no doubt that the defendants would comply with the declaration"); Thames Conservators v. Kent, [1918] 2 K. B. 272 (plaintiff's power to regulate and restrict the use of towpaths); Attorney-General v, Sewell, 88 L. J. K. B. 425 (1919) (certain promenade was a public highway); Preston Corp. v. Pyke, [1929] 2 Ch. 338 (control of burial ground, involving con- struction of deeds); Magistrates of Edinburgh v. Officers of State, 4 S. 319 (Scot. 1825) (declarator of magistrates' jurisdiction under Crown charter). 'State ex rel. Milwaukee County v. City of Milwaukee, 246 N. W. 447 (Wis. 1933) Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 154 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW public purposes,4 to demolish or remove private buildings,"" to enter upon land,"0 seize property,51 levy execution,5 2 arrest a delin- quent person,5 or commit other acts 4 which, if not sanctioned as valid, would entail serious consequences for the mistaken official. The power to undertake public works, enter into contracts, or carry on enterprises of various kinds 5 is frequently placed in issue, not only by a taxpayer or other challenger, but by the administrative authority itself. (power to make tax sale on certain date); Mitchell v. Hayes, [1926] N. Z. 262 (registrar's power to make further sales of lots, although tax lien satisfied by sale of two, in order not to compel two mortgagees to bear entire burden); Devonport Borough Council v. Quartley, [1930] N. Z. 884 (whether registrar could sell certain land for taxes). 'Johnsonville Town Board v. Futter, 30 N. Z. 490 (1911) (to take land out of ,plaintiff's district and erect a septic tank system); Smith v. Attorney-General, 31 N. Z. 509 (1912); Solidtor-General v. Cave, 31 N. Z. 614 (1912); Attorney-General cx tel. Waitotara County v. Reid, [1920] N. Z. 563 (to appropriate land as "road," and that intention to take had not been abandoned). 'Ruislip-Northwood U. D. C. v. Lee, 145 L. T. R. 203 (K. B. 1931) (to demolish certain structures as "temporary buildings" under statute); Devonport Corp. v. Tozer, [1902] 2 Ch. 182 (injunction that defendant remove structures on alleged Idghway, or declaration that plaintiffs privileged to remove; special statutory tribunal -deemed to have jurisdiction). Mayor of London v. Homer, 111 L. T. R. 512 (C. H. 1914) (to enter and take possession of leased market, after notice) ; Brodrick v. Blackie, 34 N. Z. 1113 (1915) (right of drainage board to deal with gravel on defendant's property). 'The King v. The "Mary C. Fischer", [1929] 4 D. L. R. (B. C.) 679 (customs officials had seized, for alleged violation of Customs Act, vessel which had drifted into Canadian waters helpless after storms at sea, and sought declaration of validity of seizure. Held, for defendant); Secretary of State of Canada v. Alien Property -Custodian for U. S., [1930J 3 D. L. R. (Can. Ex. Ct) 81, aff'd, [1931] 1 D. L. P. (Can. S. C.) 890 (Canadian Custodian of Enemy Property's right to seize German- owned stock on books of Canadian companies, as against United States Custodian's seizure of physical certificates and their transfer on transfer books kept in Nev. York). mAronowitz v. Industrial Utilities Corp., 5 D. & C. 633 (Pa. 1925) (defendant sheriff seeks declaration whether he is privileged to levy execution as demanded by plaintiff judgment-creditor). 'Huber, Tax Collector v. Weakland, 7 D. & C. 496 (Pa. 1925) (doubtful of his power to arrest, after finding no property on which to levy school tax, plaintiff seeks declaration); The Countess, [1921] P. 279, af'd, [1922] P. 41 (to detain a ship until certain charges were paid). "Australian Commonwealth Shipping Board v. Federated Seamen's Union, 36 C. I,. R. (Aust.) 442 (1925) (to have defendant's regitmration as an employee organiza- tion cancelled). 'Mansfield Boro. School Dist. v. Mansfield High School As'n, 9 D. & C. 113 (Pa. 1926) (that plaintiffs privileged to rent a school building for forty years); Port of London Authority v. Cairn Line of Steamships, Ltd., supra note 46 (sole privilege to weigh and measure grain on certain docks); West Midlands Joint Electricity Authority v. Pitt, [1932J 2 K. B. 1 (to maintain electric lines); The King v. Paulson, 15 Ex. C. R. 252 (Can. 1914) (that mining leases had been validly.cancelled); Commonwealth & Central Wool Committee v. Colonial Combing, Spin- ning & Weaving Co., 31 C. L. R. (Aust.) 421 (1922) (executive powers to make contracts and with whose approval); Mayor of Miramar v. The King, 28 N. Z. 727 (1909) (power to construct and lease tramways) ; Manukau Water-Supply Board v. Attorney-General, 29 N. Z. 438 (1910) (to erect certain buildings) ; Mayor of North- East Valley v. Attorney-General, 29 N. Z. 106S (1910) (to unite two boroughs into Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 155 1933-1934 158 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW way for an officer to sue for his salary 0 or for his pension"' or for compensation for particular services rendered, including the method of determining it, 2 is by declaration. In these cases it serves merely v. Barkley, 36 C. L. R. (Aust.) 20 (1925) (plaintiffs caused a special case to be stated to determine whether they were entitled to repayment of duty paid on artificial flowers imported from France, duty having been levied under statutes); Hume Steele, Ltd. v. Attorney-General for Victoria, 39 C. L. R. (Aust.) 455 (1927) (summons by lessees to determine whether they could, on resumption of land by the Crown, recover compensation for five types of losses, in view of lease stipulations) ; Beauchamp-Platts v. Budgett, 33 N. Z. 1502 (1914) (plaintiff receiver sought declara- tion construing statutory provisions as to destitute persons. Defendant had not paid sums due on maintenance order issued against him. He had funds in the hands of the Public Trustee which plaintiff wished to reach). 'Lewis v. Coleman, 233 Ky. 266, 25 S. W. (2d) 390 (1930) (plaintiff Secretary of State sought declaratory judgment fixing the amount of salary due. Defendant Auditor contended that a certain statute repealed the former provision and reduced it); Easton Councilmen's Salaries, 8 D. & C. 752 (Pa. 1926) (plaintiff officers sought declaration fixing their salaries. Defendant Comptroller contended that salaries were fixed by 1923, not 1925, ordinance); Stevens v. Hampstead Boro Council, t19291 2 Ch. 239 (plaintiff sued for "full regular pay," alleging it included all war raiseg. Defendant by way of counterclaim asked declaration that it meant pay as of time of enlistment. Declaration granted defendant); Macdonald v. The, Xing, (19301 3 D. L. R. (Manit.) 465 (plaintiff sought declaration, on petition of right, fixing salary due him. Issue was term of office-life or period for which appropriations were made); Leyden v. Attorney-General of the Irish Free State, [1926) Ir. R, 334 (plaintiff teacher sought declaration that an arbitral award was binding on defendant and that she was entitled to certain pay, a 1923 order being invalid. Salary differences were arbitrated 1917-20. After transfer to Free State jurisdiction in 1923, a reduction was ordered. Granted); Woods v. Dublin Corp., [19311 Irn R, 396 (plaintiff nurses sought declarations fixing right to certain rate of pay. Isso turned on validity of changes made in hospital charter and a 1926 reduction order); McDougall v. Attorney-General, (1925] N. Z. 104 (plaintiff railway employee sought declaration fixing his right to certain rate of pay. Denied because Crown not bound by declaration and plaintiff had relief under special statutes); Merrington v. Auck- land Education Board, [1931J N. Z. 342 (plaintiff teacher sought declaration fixing salary, due him in a position to which he was transferred, under statutes). 'Hammond v. London County Council, [19311 1 Ch. 540 (plaintiff sought declara. tion that a certain term should be included in computing his pension. Thig term bad been spent in acting as substitute for man in service) ; Cahill v. Attorney-Gen- eral, [1925] 1 Ir. R. 70, 64 Ir. L. T. 55 (1930) (plaintiff police officers sought declarations of their rights to pay, promotion, and pension under the treaty between Great Britain and Ireland. Issue turned on meaning of "officer" and "ten- ure") ; Byrnes v. Limerick County Council, [1932) Ir. R. 653 (plaintiff clerk claimed declaration that he was entitled to certain superannuation allowance. He had retired for ill health in 1925. Defendant claimed that his rights were regulated by 1927 resolution. Granted) ; Attorney-General for Victoria v. Roberts, 46 C. L. R. (Aust.) 1 (1931) (plaintiff teacher sought declaration that he was entitled to pension under certain statute. Issue turned on plaintiff's status during a certain period); Racits- GEICET III (July 10, 1914) 190-4; SOoEiRG, RECIITSPRECHUNO (1915) 482 (declara- tion permitted to establish that plaintiff had claimed pension in due time); 92 RG. 377 (April 12, 1918) (action for widow's pension-executory as to amounts due, declaratory as to future. Declaratory action allowed, because there could be no execution against the Reich); 129 RG. 31 (May 13, 1930) (grammar school teacher sued Prussia for declaration as to term used in fixing his pension. Declaratory action allowed under benevolent interpretation); 133 RG. 313 (Sept. 29, 1931) (plaintiff municipal officer, who had renounced pension rights on retiring, sought declaration that he could not renounce his rights as a public officer and that the renunciation took place during mental illness. Granted). 'Wire v. Board of Com'rs of Edwards County, 131 Kan. 725, 293 Pac. 753 (1930) (plaintiff sheriff sought declaration fixing compensation for serving warrants. Issue: compensation for actual mileage traveled or distance of points from county seat); Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 158 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW as an alternative to coercive relief and accomplishes the same pur- pose. But occasionally, it performs a more valuable function in enabling an officer to assert his claim to salary or pension, when he contemplates some action which might deprive him of it, per- mitting him thus to place in issue his alternative rights and to avoid a possibly fatal step by securing an adjudication upon its effect before actually embarking upon it. Thus, Judge Criswell, having been retired on statutory pay but under a covenant with the Audi- tor-General that he would hold himself in readiness to perform certain judicial duties until his death, desired to enter practice with- out losing his rights under the compensation statute. Proving the seriousness and imminence of his plan, he sought, against the Audi- tor who claimed that his pension would be forfeited, a declaration that he retained his status as a retired judge and his pension or, in the alternative, that it was suspended only during actual prac- tice, as the court in fact decided.' The light was turned on, and the leap in the dark made unnecessary. The right to poor relief," to claim money collected by the state,65 or to revalorize public bonds66 has been successfully invoked by suits for declarations. The right to specific relief, such as a land grant,", a patent,6s City of Corbin v. Underwood, 221 Ky. 413, 298 S. W. 109D (1927) (plaintiff jailer claimed declaration of his rights to reimbursement for expenses of transporting and guarding prisoners for trial, in view of certain statutes); Nichols v. Board of Educa- tion of Danville, 232 Ky. 428, 23 S. W. (2d) 607 (1930) (plaintiff, clerk of county court, sought declaration fixing his right to compensation for making out tax bills for defendant); Hawkins v. Fiscal Court of Caldwell County, 233 Ky. 432, 25 S. W. (2d) 1015 (1930) (plaintiff peace officers sought declaration fixing their right to fees for arrests under prohibition statute in cases in which the fine was worked out in street labor, defendant having refused them in such cases); Moore v. Moore, 147 Va. 460, 137 S. E. 488 (1927) (mandamus to compel issuance of rarrant, com- pensating plaintiff for work under statute regulating inheritance taxes. Court held that declaratory judgment procedure was available, because statutory construction was involved); Millar v. Rex, 49 Ont. L. Rep. 93 (1921) (petition of right to recover compensation for services rendered in connection with a purchase, which was regulated by statute. Issue: title searching unnecessary); Auckland Gas Co. v. Auckland City Corp., [1922J N. Z. 1041 (plaintiff sought declaration fixing its right to compensation for concreting roads. When defendant paved streets, plaintiff voluntarily moved its pipes from the road to the sidewalks in order to render access easier). 'Criswell v. Martin, 8 D. & C. 425 (Pa. 1926). 'O'Connor v. Dwyer, [1932] Ir. R. 466 (although the court refused to ffi the amount. Appelate court reversed, on ground that administrative officer's discretion should not be reviewed, unless lack of bona fides). 12 RG. 388 (Oct. 28, 1884) (that plaintiff orphan asylum has right under early charter to penalties collected by defendant administrative officers). 'RG. March 30, 1931, 60 JuR. Wocn.scHl. 2483; RG. May 18, 1931, ibid. at 3263. 'Fitzpatrick v. Rex, 57 Ont. L. Rep. 178 (1925) (denied on merits). "WTharton v. Registrar of Patents, [1921] N. Z. 817. Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 159 1933-1934 160 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW or a certificate from a public utility commission,9 has been asserted by declaratory action. In the last case, the advantage of such relief was demonstrated in the fact that the commission refused to issue such a certificate except upon compliance with a condition-a cov- enant in advance to charge only certain rates, unreviewable as such-which the utility considered illegal. Instead of incurring the dangers of proceeding without the certificate or the disadvantages of complying with the alleged illegal exaction, the plaintiffs were able to secure an adjudication of their right to the certificate, the invalidity of the regulations being determined before rather than after their enforcement. In other cases, the right to the delivery of jewelry, withheld by the police on a contested claim for charges,70 the right to a supply of water under named conditions,"1 the right to the renewal of a franchise or to undertake specific acts, if necessary at defendant's expense, 73 have all been adjudicated by declaration. While right and duty are correlative terms, the issue between the individual and the administration is quite commonly presented in the form of a demand for a declaration of the administration's duty to maintain or repair public works, such as bridges, roads, watercourses, drains, etc., 74 or to do specific acts, such as to accept 'Tennessee Eastern Elec. Co. v. Hannah, 157 Tenn. 582, 12 S. W. (2d) 312 (1928) (defendant unsuccessfully contended that Chancery Court had no jurisdiction in declaratory action to determine validity of regulations). 'Peoples' Credit Jewelers, Ltd. v. Melvin, [19333 1 D. L. R. (Ont.) 998. See also The Alwina, (19161 P: 131, in whifkb the Crown asked condemnation of a neutral ship released' on bail, but defendant instead received "declaration of the right to restitution" on payment of costs, etc. 'Henderson v. Oroville-Wyandotte Irrig. Dist., 207 Cal. 215, 277 Pac. 487 (1929) (court drew distinction between validity of order of Railroad CommLnsion, which lower court could not pass upon, and interpretation of the order); Dankert v. Oro- ville-Wyandotte Irrig. Dist., 211 Cal. 87, 293 Pac. 785 (1930) (mandamus dlsmms ed, because above declaratory action pending); Oddenino v. Metropolitan Water Board, [19141 2 Ch. 734 (right to be supplied, at named rate. Defendant's counterclaim for declaration that rate for commercial use differed, granted); Barrett v. 1lkeston Corp., (1917] 1 K. B. 827 (same). 'SManhattan Bridge Three-Cent Line v. City of New York, 204 App. Div. 89, 198 N. Y. Supp. 49, aff'd, 236 N. Y. 559, 142 N. E. 283 (1923) (that provision for renewal was part of original grant, and not subject to procedure for appraisal for new term). "Gillow v. Durham County Council, [1911] 1 K. B. 222 (to cause school to be cleaned and charge expense to local authority). See also Faber v. Gosworth U. D. C., 88 L. T. R. 549 (Ch. 1903) (to connect plaintiff's land with defendant's sewer. Dismissed, because statute provided for arbitration). "'Attorney-General v. Sharpness New Docks, [1914] 3 K. B. 1 (to maintain and repair bridges in condition to bear ordinary traffic); Attorney-General v. Scott [1905] 2 K. B. 160 (counterclaim against injunction for declaration that council under duty to maintain road in cordition to stand strain of locomotive. Denied, because it would not here serve useful purpose); City of Mankato v. Board of Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 160 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW or--official undertake specific acts, such as disconnect sewers, ap- prove plans, make valuations,80 or take particular steps to hold elections"' can in no other way be determined more efficiently. Public officials charged with a duty or challenged may initiate the action for the declaration of their duty. As already observed, it is a matter of judicial indifference as a rule whether a person al- legedly charged with duty is sued by the claimant for performance or for a declaration of right to performance or whether the party charged sues his opponent for a declaration that he is not under a dfity, as claimed., Even doubt justifies resort to an action, provided there are divergent claims. Thus, public officials have sought by declaration to determine their duty to draw vouchers for money paid them by mistake,s8 to file reports and in what detail, s to resubmit for voting a plan of municipal consolidation, 0 to admit a claim for compensation for expropriated land., So, public bodies or officials have sought declarations of their freedom from a claimed duty to pay money or assume obligations, even where this required them to assert the invalidity of their own ordinance or contracty2 strip of land); London Corp. v. London County Council, [1931] 1 X. B. 2S (that certain proceeds of sale of property were "parish property" and vested in plaintiff) ; Secretary of State of Canada v. Alien Property Custodian, [1930) 3 D. L. R. 81, af"d, [1931] 1 D. L. R. 890 (conflicting claim of title to enemy-owned stock in Canadian corporation, certificates having been seized in United States, alleged seizure on books of company in Canada); Auckland City v. One Tree Hill Borough, supra note 2 (plaintiff's rather than defendant's right to levy taxes). 8Islington Vestry v. Hornsey U. C., [1900] 1 Ch. 69S (disconnect sewer, injunc- tion asked, but declaration only issued); London County Council v. Port of London Authority, [1914J 2 Ch. 362 (defendant's duty to certify plaintiff's plans for storm water outlet); Wanganui County v. Valuer-General and Wanganui Hosp. Board, [1933] N. Z. 173 (duty of valuer to report in certain ways capital value of taxable property in plaintiff county). 'Thomas, Mayor v. Covell, Clerk, 119 Kan. 684, 240 Pac. 574 (1925) (mandamus for "declaratory judgment" that defendant under duty to print ballot, refused for alleged illegality of demanded form); School Dist. of Union Township v. Walton, 76 Pittsb. Leg. J. (0. S.) 257 (Pa. 1928) (duty of defendants to place on ballot question of increasing indebtedness, refused for plaintiff's alleged lack of authority). 'Miller v. Limon Nat. Bank, 88 Colo. 373, 296 Pac. 796 (1931). 'Holland, Jailer v. Fayette County, 240 Ky. 37, 41 S. W. (2d) 651 (1931) (also, what supplies he was bound to furnish and limit of compensation. This action followed entry of an order against him by fiscal court). 'In re Metropolitan Plan, 77 Pittsb. Leg. J. 481, 609 (Pa. 1929). 'Chairman of County of Kairanga v. Bannister, 33 N. Z. 1184 (1914) (plaintiff administrative officers sought to determine the validity of a second clam for com- pensation for land expropriated, when the first claim had been submitted to the proper statutory procedure and then adjourned to permit settlement). 'City of Milwaukee v. Chicago & N. W. R. Co., 201 Wis. 512, 230 N. W. 626 (1930) (plaintiff sought declaration ixing its duty to maintain certain bridges. In 1901, plaintiff and defendant agreed for the lowering of the tracks at certain points, defendant to erect the necessary bridges and city to maintain them, except for paint. City questioned the validity of the contract); Mlanchester Corp. v. Auden- shaw U. D. C., [1928] Ch. 127 (plaintiff, charged with upkeep, sought declaration Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 163 1933-1934 164 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW Title to public office. Possibly the most convenient way to es- tablish the right to an office is by declaration, a method open to the questioned incumbent himself and not involved in the technicalities of quo warranto, which as a rule is available only to the attorney- general or some confficting claimant to the office in question. The right to appointment or promotion or the method of appointment is frequently raised by declaration." Changes in statutes or alleged disqualifications frequently create doubts and uncertainties which induce either the incumbent 4 or the employing authority or at- determining the extent of its duty to repair-condition as of time of building ot condition required by modem traffic); Broadview v. Saskatchewan Co-op. Cream- eries, supra note 45 (in 1925, plaintiff had agreed to furnish defendant's assignor with electricity for 10 years. Plaintiff now contends that the agreement was ultra vires and received a declaration to that effect); St. Catharines v. Hydro- Elec. Power Com'n, [19303 1 D. L. R. (Imp.) 409, aff'g [19281 3 D. L. R. (Ont.) 200, aff'g [19281 1 D. L. R. (Ont.) 598 (plaintiff sought declaration that it was kiot indebted to defendant in connection with a given project, return of debent- ures deposited, and order for destruction. In 1917, plaintiff approved a railway scheme designed by defendant administrative body and issued the bonds required by statute. In 1920, the work was discontinued. In 1922, statutes regulated the return of money deposited. Dismissed on merits); City of Swift Current v. Leslie, 9 Sask. 19 (1916) (plaintiff sought declaration that it was not liable in damages for failure to fulfill agreement and that the agreement was void, judgment setting aside award); New South Wales v. Commonwealth (No. 1), 46 C. L. R. (Aust.) 159 (1932) (plaintiff sought declarations of the invalidity of the financial agreement enforcement statutes of 1932, under the constitutional provision as to contracts between states and the commonwealth on state debts). 'Monckton v. Commonwealth, 27 C. L. R. (Aust.) 149 (1920) (plaintiff claimed a declaration that he was entitled to appointment to certain civil service position on or before certain dates on which other persons had received appointment, and order for payment or difference in salary. Plaintiff had taken an examination for a higher position and seen two persons with lower ratings appointed to fill vacancies); Death v. Railway Com'rs for New South Wales, 27 N. S. W. St. R. 187 (1927) (plaintiff, a civil servant, sought to establish his right to promotion under a 1912 statute, his contention having been upheld on administrative appeal but 1id superiors refusing to act thereon. Denied); Gaudin v. Auckland Education Board, 33 N. Z. 132 (1914) (plaintiffs sought a declaration construing the statutory pro- visions as to presentation of names for appointment). 'Hay v. White, 201 Ind. 425, 169 N. E. 332 (1930) (plaintiff sought declara- tion fixing the person entitled to hold office as mayor. Defendant asserted that neither candidate for office was eligible. One candidate had received a certificate of election; both had taken oath of office); Douglass v. Pittman, 239 Ky. $48, 39 S. W. (2d) 979 (1931) (plaintiffs, members of Board of Education, sought declara- tory judgment determining status of defendant members, charging that they had disqualified themselves by their business connections and had caused illegal appoint- ments to the board); Fitzgibbon v. Attorney-General of the Irish Free State, 11930] Ir. R. 49 (plaintiffs, civil employees, sought declaration that they were entitled to pension under statutes and treaty between Great Britain and Ireland. Issue: plaintiffs' status as public servants, because their salaries, as tipstaves and criers in court, had been paid in part by litigants); Cassidy v. Attorney-General of the Irish Free State, [1930] Ir. R. 65 (plaintiffs, civil servants, sought declarations that prior to 1922 they were writing clerks on permanent official staff and as such entitled to office for life, that they were entitled to compensation for their discharge in 1926, and that the compensation given them was insufficient. Their positions had been abolished by statute in 1926). Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 164 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW torney-general9 5 to place in issue the incumbent's right to hold the office. Again, the issue is often presented in the form of a request for a declaration that the officer's discharge was unlawful, and that he is still entitled to hold the office from which he has been ousted."' The term of the office, placed in doubt by a new statute threatening to shorten or change it, has on several occasions been put to the test by a suit of the incumbent against a challenging claimant, elected to the office, or against officials authorized to hold a new election for the office.9" The issue usually involves the construction of a statute. 'CIoverdale Union High School Dist. v. Peters, 88 Cal. App. 731, 264 Pac. 273 (1928) (that defendant is not principal of plaintiff's high school); State cx tel. Hopkins v. Grove, 109 Kan. 619, 201 Pac. 82 (1921) (whether defendant could hold office of city commissioner, depending on question whether his employer, Rail- road, held a "franchise" from the city, within meaning of statute); Everett v. Griffiths, [1924] 1 K. B. 941 (that defendant disqualified from sitting as member of Board of Guardians). 'Hanson v. Radcliffe U. D. C., [1922] 2 Ch. 490 (plaintiff astant teacher sought a declaration that notice by defendant of termination of service was invalid. Plaintiff's contract was with a board of managers, which had refused to give this notice, coupled with an offer to reappoint at a reduced salary, on the defendant's request); Lonsdale v. Attorney-General, [1928] Ir. R. 35 (1930) (plaintiffs, derks of Peace and Crown, claimed declarations that they had held such office, and were entitled to hold it for life, that upon their discharge in 1926 by the Free State they were entitled to fair compensation. Issue: "fair compensation" and its calculation under statutes); Zeigler v. City of Victoria, 30 B. C. 389 (1921) (plain- tiff claimed a declaration that his dismissal as fire captain was invalid or damages for wrongful dismissal); Cross v. Commonwealth of Australia, 29 C. L. R. (Aust.) 219 (1921) (plaintiff claimed a declaration that his commission in the army had not been validly cancelled and order for payment of salary. Plaintiff had been dismissed for publication of an objectionable article); Le Leu v. Commonwealth, 29 C. L. R. (Aust.) 305 (1921) (pla~ntiff, civil servant, claimed a declaration that he was entitled to retain his office until it was terminated in accordance with a state statute and that he had been wrongfully deprived of it, reinstatement, and damages); Trower v. Commonwealth, 32 C. L. R. (Aust.) 585 (1923), af'd on re- argument, 34 C. L. R. (Aust.) 587 (1924) (plaintiff claimed a declaration that he was still an officer of the public service and entitled to hold it until it had been terminated by law, and that he had been wrongfully deprived of it. Case arose on transfer of service from state to commonwealth); Lucy v. Commonwealth, 33 C. L. R. (Aust.) 229 (1923) (plaintiff claimed a declaration that he was wrongfully deprived of his office in the public service and that he was entitled to retain it until it was terminated by law); Bradshaw v. Commonwealth, 36 C. L. R. (Aust.) S85 (192S) (plaintiff claimed a declaration that the order retiring him was void and that he was entitled to hold his office, and damages. Case arose as to power to retire, after transfer from state to commonwealth service). 'Robinson v. Moser, 179 N. E. 270 (Ind. 1931) (plaintiff sought declaratory judgment fixing his term as prosecuting attorney. He had been elected in 1928 for a 1930-1931 term. In 1929, a statute was passed changing election period. After 1930 elections, defendant claimed the office); Enmeer v. Baze, 202 Ind. 6S8, 181 N. E. 1 (1932) (plaintiff clerk of court sought declaration of his rights and duties under statute. Issue: beginning of defendant's term of office, in view of 1929 statute. Defendant had been elected in 1930); Wingate, Surrogate v. Flynn, Sec. off State, 139 Misc. 779, 249 N. Y. Supp. 351 (1931) (plaintiff-surrogate sought declaratory judgment fixing his term of office as 6 or 14 years. Plaintiff had been elected in 1925. At the same election the surrogate's term was increased to 14 years. Defend- ant, charged with preparing ballots, did not intend to list plaintiff's office as vacant in 1931); Nova, County Judge v. Flynn, Sec. of State, 139 Misc. 783, 249 N. Y. Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 165 1933-1934 168 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW the status quo, while yet averting the risks and precarious outcome of a bill of injunction."0 4 Thus, they have claimed the privilege of conducting their business free from the requirement of a license"' or deposit'06 or other government control' °7 The liberty to erect and demolish structures or works free from the restrictions of zoning or building permits or ordinances has been most conveniently asserted by declaration, for here injunc- tions against refusal of a permit are difficult and mandamus is not likely to be granted when discretion may remain even after adjudi- cation of the constitutional or legal invalidity of the governing sta- tute or administrative regulation. The privilege of erecting a filling station as planned and the claim that the zoning ordinance, on the basis of which a license had been refused, was not thereby violated, was successfully asserted in a leading New Hampshire case."' Yale 'Little v. Smith, 124 Kan. 237, 257 Pac. 959 (1927) (privilege to carry cigar- ette advertisements); Jewell Tobacco Warehouse Co. v. Kemper, 206 Ky. 667, 268 S. W. 324 (1925) (privileged to contract for sale of tobacco, without complying with co-operative law); Path6 Exch. v. Cobb, 202 App. Div. 450, 195 N. Y. Supp. 661 (1922), aff'd, 236 N. Y. 539, 143 N. E. 274 (1923) (plaintiff privileged to exhibit "1news reels" without submission to censorship); Multnomah County Fair Ass'n. v. Langley, Dist. Atty., 140 Ore. 172, 13 P. (2d) 354 (1932) (plaintiff's scheme for horse-racing not violative of lottery and nuisance statutes); cf. Harcourt v. Attorney-General, (1923] N. Z. 686 (same); Borchard, supra note 103, at 849; Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S. W. 565 (1927) (pool-room regulations) ; Utah State Fair Ass'n. v. Green, 68 Utah 251, 249 Pac. 1016 (1926) (priv- ileged to conduct horse racing without danger of prosecution); Roughley v. Now South Wales, 42 C. L. R. (Aust.) 162 (1928) (privileged to sell farm produce, free from administrative inspection of records and regulations of commissions). "°Hayden Plan Co. v. Wood, 97 Cal. App. 1, 275 Pac. 248 (1929) (permit for securities business refused, Commissioner asserting plaintiff's amenability to banking laws); Hayden Plan Co. v. Friedlander, 97 Cal. App. 12, 275 Pac. 253 (1929) (same); American Trust Co. v. McCallister, 136 Ore. 338, 299 Pac. 319 (1931) (to sell stock without permit); In re Templar Motor Car Co., 27 Dauph. Co. Rep. 276 (Pa. 1924) (permit to exchange stock demanded by Securities Bureau. Declaration of lack of jurisdiction requested); Tennessee Eastern Elec. Co. v. Hannah, 157 Tenn. 582, 12 S. W. (2d) 372 (1928) (free from certain certificate of convenience, because of conditions attached); Scottish Motor Traction Co. v. Lanarkshire County Council, 11929] S. C. 110 (Scot.), rev'g [1928] S. C. 909; James v. Commonwealth, 41 C. L, R. (Aust.) 442 (1928) (immunity from export license on dried fruits); Roughley v. New South Wales, supra note 104 (license to sell farm produce); Hamburg, OVG. I, no. 49, cited in LASSAR, REiCHSVERWALTUNGSGrmC:T (1930) 34 (dentist free to use gold and platinum without permit). 'Western Australian Ins. Co. v. Attorney-General, [1926] Ir. R. 57 (immune from demand of fresh deposit for doing business); Dalgety & Co. v. Solicitor-Gen- eral, 31 N. Z. 632 (1912) (same). "°Northwestern Nat. Ins. Co. v. Freedy, 201 Wis. 51, 227 N. W. 992 (1930) (privileged to organize and invest in non-dividend paying casualty company, which commissioner disputes under charter); Scales v. Registrar of Companies, [19201 N. Z. 821 (free to carry on all branches of insurance business); Waitaki Dairy Co. v. New Zealand Dairy-Produce Control Board, [1927] N. Z. 543 (free from defendant's control of plant and export); J. A. Redpath & Sons, Ltd. v. New Zealand Fruit-Export Control Board, [1929] N. Z. 369 (failing proper newspaper publication, plaintiff asserts freedom from defendant's control). "Faulkner v. City of Keene, 85 N. H. 147, 155 Atl. 195 (1931). See also Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 168 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW University asserted its privilege of erecting across a street and with- out a permit a bridge connecting two of its buildings, but, admitting its doubt, wisely sought a declaration of its privilege or, in the alter- native, a declaration as to whose authority was necessary to the purpose."0 9 In a recent North Carolina case,110 in which a most competent opinion was rendered, a street railway company was authorized by a public utility commission to tear up part of its tracks and substitute motor bus service. It thereupon made a con- tract with the city for such substitution. Taxpayers and city offi- cials then threatened the company that if it removed the tracks it would subject itself to a suit for damages, that its franchise would be forfeited, and that the contract was illegal. Faced by this attack, fearing to incur the dangers threatened, and preferring an adjudica- tion before rather than after the taking of irretrievable steps, the company brought a successful action against the challengers for a declaratory judgment that the contract was legal and that it was privileged to tear up the tracks without danger of incurring the penalties and losses threatened. Individuals desirous of exercising privileges in public places or in particular circumstances against adverse claims of administra- tive authorities, have asserted their privilege to use the highways for markets,"' as reporters to enter public buildings and secure information,1' to go to certain schools, 13 as licensee, to catch both fish and small game and not merely fish," 4 to use certain profes- Rosenberg v. Village of Whitefish Bay, 199 Wis. 214, 225 N. W. 838 (1929) (plain- tiffs property was unaffected by certain zoning ordinance, which could not be applied retroactively). In Weigand v. City of Wichita, 118 Kan. 26S, 234 Pac. 978 (1925), the plaintiff was held to have insufficient interest, because he alleged that the ordinance might interfere with uses that he might desire to make of his property. The suit was premature. 'Yale University v. City of New Haven, supra note 3. See also S. S. Kresge Co. v. Railroad Com'n, 204 Wis. 479, 235 N. W. 4 (1931) (in which plaintiffs, having been refused permission to erect a new building for an old one in a stream claimed non-navigable, sought declaration); Grand Junction Waterworks Co. v. Hampton U. D. C., [1898] 2 Ch. 331 (privilege to erect engine-house, without defendant's. consent. Refused, special tribunal had jurisdiction); Jackson v. Knutsford U. D. C., [1914] 2 Ch. 686 (after offering to rebuild condemned structure on compnam- tion, plaintiffs claim privilege to use existing building, without interference). 'Carolina Power & Light Co. v. Iseley, 203 N. C. 811, 167 S. E. 56 (1933); cf. Morton v. Pacific Constr. Co., 36 Ariz. 97, 283 Pac. 281 (1929); cases discussed in Borchard, supra note 103, at 808 et seq.tmGingell, Son & Foskett, Ltd. v. Stepney Borough Council, [1903] 1 K. B. 115. "Journal Printing Co. v. McVeity, 33 Ont. L. Rep. 166 (1915). 'Gateshead Union v. Durham County Council, [1918J 1 Ch. 146. "'Barlow v. Jones, Warden, 37 Ariz. 396, 294 Pac. 1106 (1930). Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 169 1933-1934 170 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW sional titles, 15 to make limited contributions only to a pension fund,116 to make a certain composition with creditors.11 The immunity of the citizen from a particular requirement has been tested quite directly in an attack upon such requirement by request for a declaration of immunity or of no-duty to comply. Possibly the best-known English case on this aspect of the problem is that of Dyson v. Attorney-General,118 which laid down, or at least strengthened, the foundation for an illustrious line of English cases expanding the utility of the declaratory judgment, particularly in its negative form of expression, beyond previous limits. Dyson asked that certain forms issued by the tax authorities and requiring under penalty the return of detailed information as to his property be declared illegal. The Attorney-General, as protector of the King's rights, claimed that such an issue could be raised only by petition of right; but the Court of Appeals sustained the propriety of the declaration, because it put to the test the validity of adminis- trative acts without purporting to take money out of the Treasury or require the conveyance of property. That distinction has had significant results in enlarging the subject's relief against improper governmental impositions. Lord Justice Farwell in the Dyson case remarked: "It would be a blot on our system of law and procedure if there is no way by which a decision on the true limit of the power of in- quisition vested in the Commissioners can be obtained by any mem- ber of the public aggrieved, without putting himself in the invidious position of being sued for a penalty."" 9 'That college teachers of Hamburg cannot be forbidden to call themselves "pro- fessor." HA&SEAT. REcHTszTa. 1923, col. 30; ibid. at 388, no. 106; ibid. at 196, no. 47. "'Foster v. Ames, 116 Conn. 505, 165 At. 609 (1933) (plaintiff teacher asked declaration fixing the amount which plaintiff was entitled to have accepted by de- fendant board as payments into the retirement fund. Administrative units had dif- fered on whether plaintiff should pay on the basis of the contract figure or the amount actually received); Austria, Sup. Ct. (April 3, 1873), GLU. 4928 (employce-s against pension institute, that they are not obliged to make contributions until they have completed forty years' service and that amendments so providing are invalid). "7 In re Prince Bliicher, [1931] 2 Ch. 70 (that certain proposal for compo,'tIon, opposed by Registrar's order, satisfied statutory requirements). 8 [19111 1 K. B. 410, aff'd, [1912] 1 Ch. 158; followed by Burghes v. Attorney- General, [1911] 2 Ch. 139, 156, aff'd, [19121 1 Ch. 173, in which Warrington, J., thor- oughly approved the declaration and inferentially overruled the adverse views ex- pressed in Offin v. Rochford R. D. C., (1906) 1 Ch. 342. 1[1911] 1 K. B. 410, 421. And see Fletcher-Moulton, L. J., in the substantive action, [1912) 1 Ch. 158, 168: "It would be intolerable that millions of the public should have to choose between giving information to the Commissioners which they have no right to demand and incurring a severe penalty. There must be some way in which the validity of the threats of the Commissioners can be tested by those who are subjected to them before they render themselves liable to penalty, and I can con, Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 170 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW stead of injunction, criminal prosecution, distraint, or abatement. This liability to governmental exaction, whether by way of tax, li- cense, or other restriction, contested by the affected individual, may conveniently be placed in issue and decided before the physical imposition of the charge, with its attendant risks of error. In the assertion of right to money, the administration has ad- vanced claims for service charges of various kinds, 12 for forfeiture by way of confiscation,'2 for recovery of moneys misapplied or wrongfully obtained,126 or for taxes due and payable. -12 7 T hBarraclough v. Brown, [1897] A. C. 615 (plaintiff administrative officer sued for a declaration of his right to recover sums expended in attempting to remove ship L, belonging to defendants, from a river channel, where she mas an obstruction to commerce); Chorley Corp. v. Nightingale, [19061 2 K. B. 612 (plaintiffs, administrative officers, sought a declaration that they were entitled to reimbursement, under statute, for repairs made on a highway after defendant property owner had refused to do so. Defendant contended that he was not responsible for that part of the highway) ; Sunderland Corp. v. Gray, [19281 Ch. 756 (plaintiff sought a declaration that de- fendant was bound to pay the sum assessed for paving in front of his property, work which had been done under statute) ; The Countess, supra note 53 (plaintiff boat owners sought to limit their liability for collision by their ship with dock gates, and sued in detinue for retention of ship, which defendant had raised. Defendant counterclaimed for a declaration of its right to detain until certain sums were paid); Sydney Harbour Trust Com'rs v. Harriott, 32 C. L. R. (Aust.) 53 (1923) (case stated to determine whether defendant was liable to plaintiff for dock fees under statute permitting plaintiff to charge such fees); Ford Shipping Line, Ltd. v. Super- intendent of Mercantile Marine, 29 N. Z. 679 (1910) (plaintiff sued to recover money alleged to have been wrongfully required under statute as deposit for expenses of seaman who left ship on account of injuries received in the course of duty. In de- ciding the case, the court stated that the point might well have been decided by declaratory judgment procedure); Auckland City Corp v. Dawson, [19291 N. Z. 614 (case stated by President of Compensation Court to determine whether plaintiff was entitled to compensation for betterment of land); Nelson City Corp. v. Busbridge, [19301 N. Z. 269 (plaintiff sought declaration determining right of municipal cor- poration under statute to surcharge for delay in paying gas and electricity, bills. It gave discount for prompt payment). 'Administrator of German Property v. Knoop, [1933] Ch. 439 (claim to ex- enemy property confiscated under art. 297 Ee] of Treaty of Versailles). '-Burnham-on-Sea U. D. C. v. Channing, [1933J Ch. 583 (suit for subsidy money obtained by housebuilder who had violated terms of grant); Rex v. Clement, 6 W. W. R. 414 (Can. Sup. Ct. 1914) (money paid as travelling allowance to judge, who had stated wrong domicil. Fraud claimed, but Exchequer Court held without juris- diction of that charge). -Attorney-General v. Dodd, [1892] 2 Q. B. 150 (information for a declaration that certain hereditaments passing under a voluntary settlement were subject to ac- count duty under statute, as personal property, though unsold); Attorney-General v. Duke of Richmond, Gordon & Lennox (No. 1), [1907] 2 K. B. 923, aff'd [190s] 2 K. B. 729 (information for a declaration that certain deductions were not allowed in the assessment of defendant's estate for purposes of estate duty) ; Attorney-General v. Peek, [1912] 2 K. B. 192, aff'd, E1913] 2 K. B. 487 (Crown claimed declarations that duties became payable upon termination of life estate in advowsons. No tax was paid on the termination of the first life estate by death, or upon the sale by second life tenant) ; Attorney-General v. Farrell, [1930] 1 K. B. 539, aff'd, [1931] 1 K. B. 81 (plaintiff asked declaration that on death of first remainderman to have possession the estate duty was payable on the principal value of property passing on his death under a certain statute. The original gift had been so varied that when the first remainder- man went into possession, he received the smaller portion of the income, and the Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 173 1933-1934 174 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW The claim to property or rights in property has taken the form of an assertion that disputed property was public and not private,12 that the administration be declared to have a lien or prior lien on defendant's property for improvements or services ren- dered or other assessable charges, 2 9 or that the government has a prior right to the use of property.'8" A controversy between administration and citizen as to the second, the larger); Attorney-General v. Adamson, [1932] 2 K. B. 159 (Crown sought declarations and orders fixing estate and succession duties due on the death of the settlor, who had died without exercising his power of appointment. Provision had been made that JW was to take two-fifths, remainder equally to settlor's other children. JW survivor settlor) ; Gowers v. Walker, [1930] 1 Ch. 262 (plaintiffs, tax officals, by way of special case, claimed a declaration that a certain sum, in respect of tax de- ducted for 1924 from interest paid by the bankrupt company, was a claim to be pre- ferred by the receiver under statute) ; Attorney-General for Ontario v. National Trust Co., [1931] 1 D. L. R. (Ont.) 354 aff'd, [1931] 2 D. L. R. (Ont.) 712 (plaintiff sought declaration that the value of the shares for succession duty should be taken as of time of testator's death, not as of date of gift. Prior to his death, testator had given his wife stock, not available on the market, which had quadrupled in value between date of gift and his death); Provincial Secretary-Treasurer v. Robinson, 47 N. B. 55 (1919) (plaintiff sought declaration that succession duty was payable on funds passing to defendants as trustees and at a named rate); 72 RG. 155 (Nov. 5, 1909) (plaintiff sued for repayment of tax; fiscms counterclaimed for declaration that further tax was due on the agreement in question). 'City of Paducah v. Mallory, 225 Ky. 692, 9 S. W. (2d) 1015 (1928) (whether dedication effective. City wishes to improve street, alleged to have been dedicated, but defendants in possession deny validity of dedication. Held, valid); Attorney- General for New South Wales v. Hill & Hall, 32 C. L. R. (Aust.) 112 (1923) (Crown's claim to crops resting on earlier lien against claim of defendant resting on earlier regis- tration); Mayor of Wellington v. Stafford, [1927] N. Z. 552 (that certain land was a public road); Attorney-General ex rel. Mayor of Dunedin v. Dunedin Arcade Co., [1929] N. Z. 621 (certain passage was a public way and had been dedicated). ','West Ham Corp. v. Sharp, [1907] 1 K. B. 445 (plaintiff sought a declaration that under statute he was entitled to a charge on defendant's property for balance of apportioned cost of building a private road and that such charge was prior to all others, order for sale, and appointment of receiver) ; Croyden R. D. C. v. Betts, [1914] 1 Ch. 870 (plaintiffs sought declaration that under sanitary statute they were entitled to charge certain sums on defendant's property for improvements executed by them, sale, and receiver); Kingston-upon-Hull Corp. v. North Eastern Ry. Co., [1915] 1 Ch. 456 (plaintiff sought declaration that a certain expense incurred by It as urban sanitary authority in executing named works, with interest, was a charge on defendant's property until payment-under a named statute); Bristol Corp. v. Sinnott, [1917] 2 Ch. 340, aff'd, (19181 1 Ch. 62 (plaintiffs sought declaration that un- der statutory authority they were entitled to a charge on defendant's property for amount apportioned to him); Macclesfield Corp. v. Macclesfield Grammar School, [19211 2 Ch. 189 (plaintiff claimed a declaration that certain debts were a charge on defendant's property. Acting under statute, plaintiff had improved street on which de- fendant's property abutted, because defendant refused to do so. Defendant refused to pay); Sunderland Corp. v. Priestman, [19271 2 Ch. 107 (plaintiff asked an order declaring certain sums, interest, and costs a charge on defendant's property. Plain- tiff had been forced to repair road when defendant's predecessor in title had failed to perform his covenant to repair a certain portion of road); Paddington Borough Council v. Finucane, E19281 Ch. 567 (plaintiffs asked declaration that a certain sum be made a charge against defendant's house and that it be made prior to all other charges. Defendant tenant had not acted on plaintiffs' notice; freeholder and other lessees contended that the judgment ran only against defendant tenant). 'City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 287 Pac. 47 (1930). Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 174 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW latter's duty may, if the government considers that it is adequately protected, be determined by way of a declaration of the defendant's duty, which may, if desired, be combined with a request for coercive relief. Thus, the government has sued for a declaration that the defendant is under duty to maintain, repair, or widen a highway,1 ' to supply water, 32 to remove an inmate from a poor house,133 to assume a surety's responsibility on bond for state funds in a defunct bank,1 34 to pay road and transit fees, 3 ' to take out a license.'" Observance of the law is often conveniently secured by a decla- ration that the defendant has no right to do some specific act or maintain a claim alleged to be illegal. The demand may or may not be accompanied by request for an injunction, which often is denied whereas the declaration may be granted. Thus, the admin- istration has sought declarations that the citizen has no right to erect or maintain certain structures, except as permitted by the government, 37 to effect a sewer connection with plaintiff's sewers," to open a burial vault except for interment,13 to impose certain conditions in a deed to the community, 40 to hold meetings on a beach,' to display films on unlicensed premises, 1 ' to have a ship 2'Hertfordshire County Council v. Great Eastern Ry. Co., [1909] 1 K. B. 368, aff'd, [1909J 2 K. B. 403 (to maintain certain section of highway); Attorney-General v. Roe, [1915] 1 Ch. 235 (to repair footpath, rebuild wall, and abate nuisance. Denied as separate declarations, because included in mandatory injunction); Rhondda U. D. C. v. Taff Vale Ry. Co., [19081 1 K. B. 239 (to widen railway crossings). 'City of Bayonne v. East Jersey Water Co., 103 AUt. 121 (N. J. Eq. 1919) (de- fendant refused to deliver, on ground that assignment of contract to plaintiff city invalid. Assignment upheld. The water company might have taken the initiative and have sued on their claim that they were relieved of further performance, because the assignment was invalid); cf. Socit6 Maritime et Commerciale v. Venus Steam Ship- ping Co., 9 Com. Cas. 289 (1904). "New Monkland Parish Council v. Erskine, [1926] S. C. Scot. 83S. "Lawrence v. American Surety Co., 249 N. W. 3 (Iich. 1933) (declaratory action to fix duty of several sureties inter se and to the state, in view of debatable release of one). '=Bavaria, VERw. GmicmsIS GESETZ, art. 8, no. 19, cited in TAUM, op. Cit. supra note 5, at 59. "'Mayor of Timaru v. South Canterbury Elec.-Pow r Board, [1928] N. Z. 174 (license of motor vehicles; issue: "used for commercial purposes"). See also VEaw. GER. BREmEN (Nov. 11, 1925), HANSEAT. REcHTszTC. (1925) 955, cited in LAss.mn, R.CHSvERWALTUGSGERICmT (1930) 34 (salesman's certificate). ' Attorney-General v. Prices' Tailors (1928), Ltd., [1930] 2 Ch. 316; Ruislp- Northwood U. D. C. v. Lee, 145 L. T. R. 208 (K. B. 1931). 'East Barnet Valley U. C. v. Stallard, 79 L. J. Ch. 103 (1909). 'Hoskyns-AbrahaU v. Paignton U. C., [1929] 1 Ch. 375 (defendant's counterclaim for declaration granted). "'Village of Grosse Pointe Shores v. Ayre, 254 Mich. 58, 235 N. W. 829 (1931). "Llandudno U. D. C. v. Woods, [18991 2 Ch. 705 (injunction denied). "2Attorney-General v. Vitagraph Co., [1915] 1 Ch. 206; cf. The King v. Ottanva Elec. R. Co., [1933J 1 D. L. R. (Ont.) 695 (to run cars on a certain loop. Denied within discretion as unnecessary, for authorizing Order in Council may be revoked at any time). Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 175 1933-1934 178 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW by reason of the interest of the party assessed. 1 Tax exemptions have been claimed by reason of the public nature 2 or statutory privilege"'3 of the owner of property or of its use for religious1' or charitable.55 purposes, or because exempted on other grounds."' The immunity of the person assessed, because he or his property is -without the jurisdiction"' or because he does not come within the issued and unissued); In re Succession Duties Act, 23 Alta. L. R. 521 (1928) (tax- ability of provincial bonds); In re Succession Duty Act and Wilson, 36 B. C. 450 (1926) (not subject to succession duty); Bowman v. Attorney-General, 38 B. C. 1 (1926) (devise of real estate, decided preliminary to probate); Fowkeg v. Minister of Finance, 38 B. C. 395 (1927) (certain stocks and bonds); McLeod v. City of Windsor, 52 Ont. L. Rep. 562 (1922) (assessment on income of estate); Macrae Mining Co. v. Township of Bucke, 58 Ont. L. Rep. 453 (1926) (mining rights not merged in surface rights and not subject to tax or sale); Grigg v. Commlssloner of Taxes, [1920] N. Z. 508 (net earnings from race meetings); Wright, Stephenson & Co. v. Commissioner of Taxes, [1921] N. Z. 633 (pension fund). Iin the Matter of Finance Acts, 1894-1910, [1931] Ir. R. 98 (interest of testator in property); McPhedran & Cleland v. Toronto, [1932] 1 D. L. R. (Ont.) 439, aff'd [19321 2 D. L. R. (Ont.) 202 (improvements on leased property); Vaughn v. Attorney-General, 20 Alta. L. R. 424 (1924) (holder in escrow only, not owner); Public Trustee v. Chairman of County of Waipawa, [1921J N. Z. 1104 (property held in trust for King). 'City of Louisville v. Cromwell, State Treasurer, 233 Ky. 828, 27 S. IV. (2d) 377 (1930); Public Trustee v. Hutt River Board, 34 N. Z. 753 (1915) (held as Crown land through mortgage foreclosure); Public Trustee v. Chairman of County of Waipawa, supra note 151, (held in trust for King); The King v. Mayor of Ingle- wood, [1931J N. Z. 177 (Crown exempt on land taken over in default of mortgago debt). 'State ex rel. Smith v. Board of Com'rs of Shawnee County, supra noto 15o (property belonging to minor children of deceased soldier in bands of guardian claimed as federal tax-exempt funds). 'Hodge v. City of Moose Jaw, 19 Sask. L. R. 369 (1925) (part used for public worship exemption on whole claimed); Perpetual Trustees, Estate & Agency Co of New Zealand v. Mayor of City of Dunedin, 34 N. Z. 877 (1915) (part leased). 'Re Assessment Navy League of Canada, 59 N. S. 212 (1927) (having taken over work of tax-exempt Seamen's Society, question, had exemption carried over); Swinburne v. Federal Com'r of Taxation, 27 C. L. R. (Aust.) 377 (1920) (whether certain institution was "charitable," so as to entitled plaintiff to deduction from tax on gift of money to it); President of Shire of Nunawading v. Adult Deaf & Dumb Soc. of Victoria, 29 C. L. R. (Aust.) 98 (1921) (whether land used for growing flowers to sell for maintenance and leased for picnics was "charitable" use) ; Daly v. State of Victoria, 29 C. L. R. (Aust.) 491 (1921) (charitable bequests in will). 'State ex rel. Peterson, Atty. Gen. v. Maricopa County, 38 Ariz. 347, 300 Pac. 175 (1931) (whether mortgage foreclosure sale merged a prior tax lion); People's Telephone Corp. v. City of Butler, 99 Pa. Super. 256 (1930) (that lot and build- ing used in good faith for plaintiff's business, hence tax-exempt) ; Canadian Northern Pac. Ry. Co. v. City of Kelowna, 25 B. C. 514 (1917) (that land sold for delinquent taxes was actually tax-exempt. So held); Canadian Northern Pac. Ry. Co. v. City of Vernon, 26 B. C. 222 (1918) (same. Contention that ta. appeal should have been taken, dismissed). 'Box Elder County v. Conley, County Assessor, 75 Utah 199, 284 Pac. 105 (1930) (that automobile assembled in California and shipped to Utah was not taxable in Utah for that year); Barwick v. South Eastern & Chatham Ry. Cos., [1921J 1 K. B. 187, aff'g (1920] 2 K. B. 387 (whether reclaimed land within taxing district); Hope v. Edinburgh Corp., 5 Scot. L. T. 195 (1897) (land not within taxing jurisdiction); Re Parker and Succession Duty Act, 36 B. C. 299 (1925) Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 178 1933-1934 DECLARATORY JUDGMENTS IN ADMINISTRATIVE LAW statutory definition of those liable to tax,' or that the tax is limited to the amount offered or admitted,159 or that the classification of the property for taxation was erroneous"'0 is commonly claimed by declaration. Attacks upon the propriety or payability of a tax have raised questions as to the necessity for a levy;"0 ' the illegality of the gen- eral tax rate; 6 ' the failure to comply with statutory requirements conferring the necessary jurisdiction to tax;" the correctness or (mortgage debts outside province); Murray v. Federal Com'r of Taxation, 29 C. L. R. (Aust.) 134 (1921) (validity of assessment on dividends paid to resident of England by English and Australian companies). "SFrank v. Lindsey, 156 Tenn. 456, 2 S. W. (2d) 412 (1928) (that tax on auto tire merchants did not apply to plaintiff, because, while he sold tires, be did not also run a service station); Parmer v. Lindsey, 157 Tenn. 29, 3 S. W. (2d) 657 (1928) (that plaintiff not a "general contractor" or within the enumerated occupa- tions subject to tax); Vaughn v. Attorney-General, supra note 151 (that plain- tiff's deceased husband held vendor's deed in escrow only, hence not owner, and exempt); Grigg v. Commissioner of Taxes, supra note 150 (racing society claimed immune from income tax); 31 RG. 30 (Feb. 24, 1893) (joint stock corpora- tion claimed exemption from stamp tax); RG. June 16, 1925, HoEcsr. RXnc scPCU. (1925) no. 1811 (same). 'Cupp Grocery Co. v. Johnstown, 288 Pa. 43, 135 AUt. 610 (1927) (plaintiff owner of 33 stores claims liability to only one license tax of $100 as a corporation, not $915 as assessed); Donnelly v. Commissioner of Stamps, 33 N. Z. 79 (1914) (5%, not 107, the proper rate); RG. May 12, 1911, SoM.oEi. (1911) 582 (no higher stamp for deed claimable than one used). '°Newman Mfg. Co. v. Marrable, [19311 2 K. B. 297 (that beads imported were not "unfinished buttons" and hence dutiable); Tilling-Stevens Motors, Ltd. v. Kent County Council, [19291 1 Ch. 66 (that plaintiff's motor car is "electrically driven" and not assessable); Incorporated Council of Law Reporting for Queens- land v. Federal Com'r of Taxation, 34 C. L. R. (Aust.) 580 (1924) (whether appel- lant was a person and liable to, or a corporation, hence exempt from, income tax). 'Denver Land Co. v. Moffat Tunnel Impr. Dist., 87 Colo. 1, 284 Pac. 339 (1930) (past levies invalid, because bond issue which they served, invalid. Dis- missed for lack of necessary parties); British Fisheries Soc. v. Magistrates of Wick, 10 M. 426 (Scot. 1872) (that accumulation of surplus from past levies made tax improper). "=Anderson, Sheriff, v. Gillis, 242 Ky. 404, 46 S. W. (2d) 508 (1932) (plaintiff taxpayers and property owners sought a declaration that a certain portion of the tax rate was illegal. The rate had been increased in 1918, in 1922 by a bond issue, and in 1927 by election authorizing continuance of 1922 levy. Defective parties, so case remanded); Parrish v. Hackney Corp., [1911] 2 K. B. 822 (plaintiff occupier of licensed premises asked declaration that a certain rate was illegal, in so far as it differed from those fixed by the quinquennial valuation list, and injunction); Raglan Town Board v. Raglan County, [1920] N. Z. 646 (plaintiff sought a declara- tion that there should not be a general rate for the tax district but that distinctions should be made between the town and outlying districts). 'Gwynne v. Board of Education of Union Free School Dist., 234 App. Div. 629, 252 N. Y. Supp. 625 (1931) (plaintiff sought declaration and injunction, on the ground that defendant could not legally tax his property, objection to con- solidation of school districts); Villeneuve v. Rural Municipality of Kelvington, [1929] 2 D. L. R. (Sask.) 919 (plaintiff landowners sought declaration as to validity of awards by an engineer and assessment under a ditch statute, on the ground that the proceedings were void for want of required notice to, and meeting of, the land- owners involved and also for exceeding cost limit); Fletcher v. Wainono Drainage Board, [1917] N. Z. 405 (plaintiff landowner sought to determine the validity of a tax, on the ground that the proceedings to annex plaintiff's district to defendant's Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 179 1933-1934 180 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW validity of the tax base or valuation for assessment; 104 the correct- ness of the mode ofassessment, discriminating against or improperly burdening the complainant; 05 the amount of tax due; 1 0 the inci- dence of the tax;' the amount of deductions allowable;10 8 and were invalid for want of notice to, and hearing of, landowners involved); Blenheim Corp. v. Australian Mut. Provident Soc., [1922] N. Z. 1229 (plaintiff sought to determine the validity of a rate imposed to pay off loan for gas works construction. Issue: interest, sinking fund, etc., as included in "repayment of moneys borrowcd," as the resolution submitted to taxpayers did not specifically mention them In describing the tax). "'Edinburgh & Glasgow Ry. Co. v. Meek, 12 D. 153 (Scot. 1849) (plaintiff sought declarator fixing the assessable value of the railroad and the proportion pay- able in each parish, under statutes taxing railroads for poor benefit [proportion- local mileage: total mileage] and permitting parishes a choice of three ways of assessing); Rex v. Miebach, 22 Alta. L. R. 482 (1927) (special case to determine construction of "net value" under succession duty statute); Finch v. Commissioner of Stamps, 33 N. Z. 144 (1914) (case stated to determine the basis of taxation on property deeded to sons at a price less than its true value); Mayor of Christchurch v. Christchurch Drainage Board, [19251 N. Z. 837 (plaintiff, unit for levy and collection of taxes, sought to determine the proper basis of taxation. Boroughs and cities had used unimproved value. Counties and defendant levying on a speclal area had used capital value. Plaintiff wished to collect as it did its own taxes); Ellis & Burnand, Ltd. v. Waitomo County, [1926 N. Z. 669 (plaintiff, a timber- cutting concern holding license to remove timber from native land, sought declara- tion fixing its liability for rates. Plaintiff had done little work in clearing. Natives had two small settlements in the tract, in which they had not been disturbed. Issue: assessment on value of whole block or license; plaintiff as sole occupier under statute); Edginton & Bernstone v. Waihopai River Board, [19291 N. Z. 823 (plain- tiff sought declaration fixing basis of taxation and injunction. Land in defendant's area was subject to tax on unimproved value. Under statute, defendant ordered a general rate and failed to notify the borough council. The county comncl levied on capital value). "Wilcox v. Town of Madison 106 Conn. 223, 137 Atl. 742 (1927), certiorari denied, 276 U. S. 606, 48 Sup. Ct. 337 (1928) (assessment claimed out of propor- tion to real value of property, and that classification wrong); Attorney-General v. Hackney Corp., [1918] 1 Ch. 372 (discrimination); McLean v. Commlssioner of Taxes, 31 N. Z. 469 (1910) (method of calculation of absentee tax). 'In re Aschrott, [19271 1 Ch. 313 (administrator seeks declaration of estate duty on securities purchased for German by London branch of German bank, two- fifths left by will to British and Polish subjects, three-fifths to German and Austrian subjects); In re Succession Duties Act, 23 Alta. L. R. 521 (1928) (what property in estate, including provincial bonds, taxable and amount due); Donnelly v. Com- missioner of Stamps, supra note 159 (plaintiff claims only 5% rate due, as he i a relative within fourth degree, not 10% as claimed). "TIn the Matter of the Estate of Drew, [1923] 1 Ir. R. 35 (whether freehold or personalty of testator should bear estate duty); East London Hosp. v. Cobbett, 30 C. L. R. (Aust.) 278 (1922) (how estate tax to be borne between property In Tasmania and elsewhere); Manning v. Federal Com'r of Taxation, 40 C. L. R. (Aust.) 506 (1928) (whether plaintiff liable as trustee); Death v. Gower, [19161 N. Z. 751 (whether plaintiff vendor or defendant vendee is liable for mortgage tax). "Steuart v. Parochial Board of Keith, 8 M. 26 (Scot. 1869) (plaintiff sought declarator that he was entitled to greater deductions than the blanket deduction given and that the method used by defendant in fixing the blanket deduction was illegal); Swinburne v. Federal Com'r of Taxation, supra note 155 (case stated to determine whether a certain institution was a charitable institution within statu- tory definition and whether plaintiff was entitled to deduction for gift of money to it); Hoysted v. Federal Com'r of Taxation, 29 C. L. R. (Aust.) 537 (1921), rev'd, 37 C. L. R. (Aust.) 290 (1925) (case stated to determine whether cer- tain persons were joint owners for purposes of taxation, thus entitling their trus- tees to certain assessments and deductions); Union Steamship Co. of New Zea- Imaged with the Permission of N.Y.U. Law Review HeinOnline -- 11 N.Y.U. L. Q. Rev. 180 1933-1934