STATUTORY POWERS AND LEGAL DUTIES OF LOCAL AUTHORITIES
| DOI | http://doi.org/10.1111/j.1468-2230.1945.tb02886.x |
| Published date | 01 March 1945 |
| Date | 01 March 1945 |
STATUTORY
POWERS
OF
LOCAL
AUTHORITIES
31
courts handed down from case to case and from day to day without
any weighted reference
to
past precedents or general principles
Justice Holmes once stated that general propcsitions do not decide
cnncrete
cavs,
but
the
fact-collector,
who
ovcr-emphasizes concrete
circumstances, divorced from principl~
or
pcedeni
,
is
apt
to
find
himself ininierswl
in
a
mass
of
puny prtici~lais without order, plan
or
objective. The
“job”
for
jurisprudence which Mr. Harvey proposes
for the concept-ridden jurists of traditional law is the descent from
the stratosphere of abstractions to the ground-level of actuality,
a descent from the heaven of legal concept to the “pedestrian level of
life.” Another
“job”
has come into being with the arrival of prag-
matic, realist and experimental techniques. In place of the Holmesian
aphorism that the “life of thc law has not been logic;
it
has been
experience,” the common
1
aw defender offers the Thomistic substitute
proposal that the life of the law has been logic
and
experience. While
the common law devotee is not averse to all changes in the comnxn
law, he suggests that it is not only helpful but necessary to know where
we are going before we launch a new juristic system. Such appraisal
and evaluation are frequently absent
in
the tentative programmes of
our legal reformers. Substantial evidence of
this
fault seems to be
present throughout Rlr. Harvey’s scholarly paper.
WALTER
B.
KENNEDY*
*
Professor
of
Law
and
Acting Dean,
Fordham
University
School
of
Law.
New
York
City.
STATUTORY
POWERS
AND
LEGAL
DUTIES
OF
LOCAL AU7‘HORITIES
HE
Law Reports show
a
steady increase in actions for damages
brought against Public Authorities arising out
of
the exercise
of some public function.
It
is,
of course, in no way sur-
prising that, with the vast increase of public services and duties-
greatly augmented by war-time responsibilities imposed
upon
local
authorities-the possibilities
of
injury to private persons should also
increase.
It
is rather more surprising that the great legal and juris-
prudential problems of this development have hardly been noted.
Volumes of discussion about the modern interpretation of the rule
of law have centred round the more spectacular features, such as the
archaic immunity
of
the Crown from tort actions, and the increase
of judicial
or
quasi-judicial functions vested in administrative authori-
ties or special tribunals. At first sight, the increase
of
actions for
damages against public authorities does not seem to call
for
comment.
A Borough or County Council, a Catchment Board, the
B.B.C.,
the
Port
of London Authority, constituted as juristic persons, are fully
liable, like any other legal persoil; this seems to vindicate, riot to
challenge the orthodox interpretation of the rule of law.
A
rnor,-
thorough examination reveals a different state of affairs. Time and
32
M0DER.N
LAW
REVIEW
March,
1945
again, recent cases have revealcd the difficulty
of
treating the excercise
of a social function or a public duty in the same
way
and with the
Same legal categories as a contractual or delictual relation bctwcn
private parties. Thc result lias
bcen
a
conflict
of
autlioritics and
a confusion of principles w11ich
is
bcconiing scricius.
The difficulty of dealing with such matters as the official visits
of
factory inspectors or policemen to private premises, or the admission
of the public, ratepayers and others, to public parks, by means
of
the
private law categories
of
invitees and licensees has been discussed
elsewlicre.’ The present article is concerned with another aspect of
the same broad problem, brought into prominence by recent cases.
Two
groups of cases in particular illustrate the legal position of local
and other public authorities, entrusted with a public function, in the
interest
of
the general public or
a
section
of
it, the exercise of which
may lead to private injury.
Of
tlie first group, the most recent and
authoritative illustration is the decision
of
the House of Lords in the
East
Sicfolk
Rivers
Catchment
Board
case.2 In the second group, the
House
of
Lords has not pet spoken. But
a
vast number
of
decisions by
lower courts deals with the position
of
local authorities whose statutory
duties or powers have been affected by war-time regulations (mainly the
Lighting (Restrictions) Order,
1939).
and probes into the complex
problem
of
the relation between statutory powers, public responsi-
bilities and common law duties.3
In
this group, it is almost impossible
to find any two decisions based
on
the same principles. What makes
things worse, is the narrow and unsatisfactory method of dealing with
precedent.
One
would, for example, liavc expected the
East
Strfolk
Calcliment
Board
case to be cited in the different black-out cases;
for the basic problem of statutory power in relation to common law
duties is the same. Yet one group
of
decisions proceeds in almost
complete isolation from the other.
It will be submitted that only a proper consideration
of
the principle
of
public policy involved-n&mely the extent to which public authori-
tics must rernain unhampered by private liabilities in the exercise
of a social function as defined by Parliament-can lead to a clarification
of this increasingly important subject. The first task, however, is an
analysis of the authorities as they stand at present.
The decisions to be considered
in
this article-in all
of
which
a
member of the public claims damages for injuries
to
person or property
suffcred by the action or inaction of
a
public authority in the exercise
of a statutory power-revolve round six major legal problems:-
I.
The question to what extent
a
statutory power implies
n
2.
The interpretation
of
a statutory power
as
absolute (im-
3.
The exercise
of
a
statutory
power
in a reasonable manner,
statutory duty.
perative)
or
conditional (permissive).
“Liability to Visitors
of
Premises.”
ZI
Capz.
Bar.
Rev.,
p.
80
[19)-13).
For
a
brief tabular
synopsis
of
the most important cases. see Appendix.
*
[19411
4.C.
74.
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