Notes on Administrative Law
| Published date | 01 October 1937 |
| Author | Ivor Jennings |
| Date | 01 October 1937 |
| DOI | http://doi.org/10.1111/j.1467-9299.1937.tb03007.x |
Notes
NOTES
ON
ADMINISTRATIVE
LAW
By
IVOR
JENNINGS,
M.A.,
LL.D.
The Overruling
of
Old
Cases
The law
of
assessment for
rating
cannot be said
to
possess
the characteristics of
stark simplicity and sweet reasonableness which are said by some to belong
to
the
common law. The fundamental principles are contained
in
a
few statutes
passed
long
ago when
"
rent
"
was
a
simple and universal kind of property whose vdue
could readily be determined.
In
the expansive days of the eighteenth century,
and even
in
the rolled-gold age
of
Mr.
Disraeli, the question whether
a
gentleman
of adequate political influence could have his blood ennobled could be determined
by
his
rent-roll. The tenants were real tenants paying
a
real
rent. To-day,
the
candidate for aristocracy
is
a
shareholder in
a
multiplicity of companies, each
of
which
is
a
hypothetical landlord of
a
hypothetical tenant receiving hypothetical
rent;
rating
officers have perforce become speculative philosophers, and the
courts
must sometimes wonder whether they ought not to
go
to
Cambridge for
a
course
in
the higher mathematics. The result
is
as
confused
a
collection of decisions
as
has
ever disgraced the law reports.
Nevertheless, the rating officer would more or less know whether he was standing
on
his hypothetical head or
on
his hypothetical feet
if
the decisions which seemed
to be bumping
against
him somewhere were terra hma and not more hypotheses.
Recently, however, the courts have taken to the revolutionary doctrine
that
many
of
the decisions
of
their predecessors were nonsense. The
Whigs
have,
so
to
speak,
gone over
to
the Jacobins. and the guillotine
is
falling rather heavily. There have
been
two
recent examples. In
Westminster
City
Coumil
v.
Southern
Rly.
Co.,
[1g36]
A.C.
511
(a
nice case
full
of
lovely hypotheses), the House
of
Lords held
that bookstalls,
a
chemist's shop,
kiosks,
hairdressing saloons and other tenements
within the area of
a
railway station were not
"
railway hereditaments
":
and
in
so
doing they overruled
Smith
v.
Lambeth Assessment Committee
(1882).
10
Q.B.D.
327,
a
case which
in
substance decided the opposite and which
has
been
assumed to be law for something more
than
fifty
years.
It
had been followed
twice
in
Scotland and once
in
Ireland; it had been
"
explained
"
by Lindley
L.
J.
in
1884
in
a passage
"
which at
first
sight
is
puzzling."
It
was strenuously
argued that it has stood
so
long
as
an authority
that
it
ought not to be overruled;
but
Lord Wright
M.R.
said,
'I
there
is
no
rule which debars your
Lordships
from
doing justice even at the cost of reversing an old authority,
that
is
an authority
of
a Court inferior
to
this House."
It
must be remembered
that
appeal
to
the House of Lords
has
aIways been
a
comparatively rare event.
It
has been well said that
'I
the
Courts
are open
to
everybody like the
Ritz
Hotel
";
and the
House
of Lords is not as popular
a
resort
as
the Corner House.
It
is,
in fact, the place for the bloated plutocrats
of
the modem world, the wealthy corporations.
If
the House began overruling old
decisions
on
the ground that they were taken by inferior courts and
that
the
House would be prevented from doing justice, whole branches of the law would
462
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