Eldad & the Supreme Court X

8. I do not think that every administrative act which is not provided for by law must of necessity be fundamentally invalid. As is known, there is in our day - and not only in this country - an ever-growing body of what is sometimes called “administrative quasi-law” (see Allen in his well-known work “Law and Orders”, at page 155, and an article entitled “Administrative Quasi-Legislation,” by Megarry in 60 L.Q.R. p. 125, and see also p. 218 ibid.). This is a body of rules which the executive authority and not the legislature lays down for itself, and according to which it acts not only in its internal arrangements, but also in its relations with the citizens. The influence of office administration which is based not on the provisions of the law but upon rules circulated by the authorities among its officials by means of circulars, is today considerable. This is a phenomenon in the life of a modern State which many regard with trepidation. (See,inter alia, Allen, ibid. and also Lord Hewart in his book. “The New Despotism”). Where the legislature has empowered the executive authority to framed subsidiary legislation within defined limits, its actions should of course not be too closely scrutinised, so long as that authority does not exceed its powers. It sometimes happens, however, that such administrative rules are framed to regulate a matter upon which the legislature has expressed no opinion, a matter within a vacuum from the legal point of view. In such a case it is appropriate to enquire as to the legal validity of such rules and provisions which do not derive from the authority of the law itself. However, this is neither the place nor the time to expatiate upon this elusive problem, since even a person who is prepared to regard this development of a body of administrative rules as a healthy and natural development, and would not hasten to invalidate it as something fundamentally bad - “administrative lawlessness”, as Lord Hewart has called it - even such a person will admit that such rules have no right to exist if they exceed the limits which the legislature has conferred upon the executive authority in a particular matter. It is simply a case of an excess of authority if the authority arrogates to itself powers which are wider than those which are defined by law, and this is also true where the powers, which the authority assumes, contradict those which are conferred upon it by law. That is in fact the situation in this case. The legislature introduced a distinction, and laid down that private schools a.re not the same as public or assisted schools insofar as the acceptance of teachers is concerned, if this be so, the second respondent was not entitled to assume a power of which he had been deprived by law, and to lay down a rule that a teacher in a private school also may not be accepted save with the confirmation of the Inspector of time Department. It is clear that the court will not approve an administrative rule which is inconsistent with the law.

9. As I have said, the respondent admitted that his action was not based upon law, and he therefore emphasised the nature of his approach to the principals of private schools, stating that he only “requested” them not to employ teachers in their schools save with the consent of the Inspector. It is not necessary to say that a “request” such as this is tantamount to an order at least in so far as the petitioner before us is concerned, because for reasons which are self-evident schools would tend to yield to a “request” of this kind, as the present case proves. It is possible that had the respondent approached the principals of schools in a form that was less compelling, and had emphasised that his request had no binding force, it would have been difficult to find any fault with his approach. It is clear to me, however, from the evidence of the respondent in his affidavit, that he in fact did not employ language which gave the principals any choice - that if they so wished they could follow his opinion, and if not they could disregard it and employ a teacher against his will. ln this case the respondent did not set out in the circular that the principals of schools had a choice in the matter. I have no doubt, therefore, that the respondent exceeded his authority in approaching the principals of schools.

10. The question arises whether we are able to grant relief to the petitioner. To the extent that I have held in this judgment - as a result of the above reasoning - that the second respondent exceeded his authority it is possible that that itself constitutes some remedy for the petitioner. The petitioner, however, asks for an order against the respondent that lie withdraw his opposition to accepting the petitioner as a teacher in the Montefiore School. In regard to this it is first necessary to examine what in fact was the respondent’s unlawful act in regard to the petitioner. In this respect there is in my opinion a contradiction between the version of the petitioner and that of the respondent. We must guard against a certain ambiguity in the expression “opposition” . If the intention is that the respondent is not happy about the appointment of the petitioner, there is indeed no doubt that he ““opposes” the petitioner’s appointment in that sense. It is clear, however, that this court has no interest in the mental reservations of the respondent but only in his acts or omissions. And if tIme intention is to refer to a particular act, it is my opinion that the respondent did not “oppose” the appointment of the petitioner in this sense. He did not write to the principal of the school that he, the Director of the Department of Education, opposes, but that the Ministry of Defence opposes. That means that he, the respondent, refused to give his consent upon the basis of this opposition by the Ministry of Defence. It is true that the petitioner stated in paragraph 12 of his affidavit that counsel for the second respondent gave “a verbal instruction that the employment of the petitioner should be discontinued within 24 hours”, but the second respondent has denied this version . It seems to me that the letters annexed to the petitioner’s affidavit - that in which the Inspector informed the principal of time school of the opposition of the Ministry of Defence, and that in which the principal of the school informed the petitioner that lie could not be accepted as a teacher - supports the version of the respondent, namely, that the principals of schools acceded to his request not to employ teachers save with the Inspector’s consent and that in this case no such consent was given, if that is so, the petitioner can advance no contention against the respondent in regard to some positive act relating to himself, that is to say, opposition to his acceptance as a teacher, and for that reason he cannot seek the “withdrawal of his opposition” . His complaint concerns a passive act, namely, the failure to give the consent that was required by the petitioner in order that the principal of the school would be prepared to accept him.

11. The court was not asked to compel the respondent to give the consent referred to, and even had it been asked to do so, I have no doubt that the court would have had to refuse such an application . As I have said, the second respondent exceeded his authority in requesting the principals of schools not to employ teachers save with the consent of the Inspector. If that is so, this court will not compel the respondent to do the very act which exceeds his authority, that is to say, to give his consent (or to instruct the Inspector to give his consent). The court, therefore, will also not interfere with the grounds which induced the respondent to refuse his consent in this instance. Authority for this proposition - if such be needed - may be found in R. v. Barnstaple Justices, (6). ln that case the Justices were authorised to issue a license for the use of buildings as cinemas. They were asked to give their decision in regard to a building which had not yet been built, and they considered the application and refused it. It was held by the court that no order of mandamus or of certiorari should be made against them since they had in any event no power to deal with an application for the issue of a license before the building had been erected. The position in our case is similar actually to that which obtained in the case of Matossian v. Bergman , (4). ln that case too an official exceeded his authority, but in order to remedy the situation and restore the previous position it would have been necessary for the official to perform an act which the law did not empower him to do. The unlawful act had already been done. The court considered the position after the event, and found iio way to issue an order to the official in order to remedy the situation that had arisen. The unlawful act in the case before us is the approach in the circular to the principals of the schools. The court is now asked to order the respondent to withdraw its opposition to the petitioner. I have already said that the question in this case is in fact not one of opposition, but of the absence of consent. lt is clear that the court cannot compel the respondent to restore the position to what it was by giving his consent, since he has no power to consent. ln regard to time “withdrawal of opposition”, it is no doubt correct that where an official is unable himself to set aside an unlawful act on his part, the court will be competent to set aside such act (Bouchman and Shoulyan v. Bergman (5)). ln the present case, however, there was no act on the part of the respondent which can be regarded as “opposition”, so that even if an order setting aside such opposition were to be made, it would not operate as a consent, the giving of which is made a condition - albeit unlawfully - to the petitioner being accepted as a teacher. lt seems to me that in these circumstances this court has no alternative but to discharge the order nisi.

OLSHAN J. The decision of the court is that the interference by the second respondent in the employment of the petitioner as a teacher in the institution of the third respondent was unauthorised in law, and that the second respondent must refrain from interfering in this matter. lt is decided by a majority to make a final order to this effect.

Order nisi made absolute against the second respondent. Judgment given on February 8, 1951.



	HOME Dr. Israel Eldad Principles for a Hebrew Liberation Movement by Dr. Eldad Memorial for Fighters for the Freedom of Israel by Dr. Eldad Jabotinsky Distorted by Dr. Eldad You Should Be Ashamed! by Dr. Eldad Temple Mount In Ruins by Dr. Eladad The Fith of Iyar by Dr. Eldad The Challenge of Jerusalem by Dr. Eldad The Jewish Defense League of Shushan Habira by Dr. Eldad An Open and Distressed Letter to Menachem Begin by Dr. Eldad Elnakam: Story of a Fighter for the Freedom of Israel by Dr. Eldad The Israel Restraint Forces by Dr. Eldad The Real-Politik of Our Sages by Dr. Eldad Jerusalem: A Burning Issue & Trial of Faith by Dr. Eldad A New Type of Jew by Dr. Eldad Foundation Stones by Dr. Israel Eldad Dr. Eldad & the Supreme Court of Israel Selected Judgments Biography: Dr. Israel Eldad by Chaim Yerushalmi BIBLICAL COMMENTARY E-mail: info@saveisrael.com Contact Information: Save Israel 42 East Cityline Ave. Suite 352 Bala Cynwyd, PA 19004			page 10 Dr. Eldad and the Supreme Court of Israel 8. I do not think that every administrative act which is not provided for by law must of necessity be fundamentally invalid. As is known, there is in our day - and not only in this country - an ever-growing body of what is sometimes called “administrative quasi-law” (see Allen in his well-known work “Law and Orders”, at page 155, and an article entitled “Administrative Quasi-Legislation,” by Megarry in 60 L.Q.R. p. 125, and see also p. 218 ibid.). This is a body of rules which the executive authority and not the legislature lays down for itself, and according to which it acts not only in its internal arrangements, but also in its relations with the citizens. The influence of office administration which is based not on the provisions of the law but upon rules circulated by the authorities among its officials by means of circulars, is today considerable. This is a phenomenon in the life of a modern State which many regard with trepidation. (See,inter alia, Allen, ibid. and also Lord Hewart in his book. “The New Despotism”). Where the legislature has empowered the executive authority to framed subsidiary legislation within defined limits, its actions should of course not be too closely scrutinised, so long as that authority does not exceed its powers. It sometimes happens, however, that such administrative rules are framed to regulate a matter upon which the legislature has expressed no opinion, a matter within a vacuum from the legal point of view. In such a case it is appropriate to enquire as to the legal validity of such rules and provisions which do not derive from the authority of the law itself. However, this is neither the place nor the time to expatiate upon this elusive problem, since even a person who is prepared to regard this development of a body of administrative rules as a healthy and natural development, and would not hasten to invalidate it as something fundamentally bad - “administrative lawlessness”, as Lord Hewart has called it - even such a person will admit that such rules have no right to exist if they exceed the limits which the legislature has conferred upon the executive authority in a particular matter. It is simply a case of an excess of authority if the authority arrogates to itself powers which are wider than those which are defined by law, and this is also true where the powers, which the authority assumes, contradict those which are conferred upon it by law. That is in fact the situation in this case. The legislature introduced a distinction, and laid down that private schools a.re not the same as public or assisted schools insofar as the acceptance of teachers is concerned, if this be so, the second respondent was not entitled to assume a power of which he had been deprived by law, and to lay down a rule that a teacher in a private school also may not be accepted save with the confirmation of the Inspector of time Department. It is clear that the court will not approve an administrative rule which is inconsistent with the law. 9. As I have said, the respondent admitted that his action was not based upon law, and he therefore emphasised the nature of his approach to the principals of private schools, stating that he only “requested” them not to employ teachers in their schools save with the consent of the Inspector. It is not necessary to say that a “request” such as this is tantamount to an order at least in so far as the petitioner before us is concerned, because for reasons which are self-evident schools would tend to yield to a “request” of this kind, as the present case proves. It is possible that had the respondent approached the principals of schools in a form that was less compelling, and had emphasised that his request had no binding force, it would have been difficult to find any fault with his approach. It is clear to me, however, from the evidence of the respondent in his affidavit, that he in fact did not employ language which gave the principals any choice - that if they so wished they could follow his opinion, and if not they could disregard it and employ a teacher against his will. ln this case the respondent did not set out in the circular that the principals of schools had a choice in the matter. I have no doubt, therefore, that the respondent exceeded his authority in approaching the principals of schools. 10. The question arises whether we are able to grant relief to the petitioner. To the extent that I have held in this judgment - as a result of the above reasoning - that the second respondent exceeded his authority it is possible that that itself constitutes some remedy for the petitioner. The petitioner, however, asks for an order against the respondent that lie withdraw his opposition to accepting the petitioner as a teacher in the Montefiore School. In regard to this it is first necessary to examine what in fact was the respondent’s unlawful act in regard to the petitioner. In this respect there is in my opinion a contradiction between the version of the petitioner and that of the respondent. We must guard against a certain ambiguity in the expression “opposition” . If the intention is that the respondent is not happy about the appointment of the petitioner, there is indeed no doubt that he ““opposes” the petitioner’s appointment in that sense. It is clear, however, that this court has no interest in the mental reservations of the respondent but only in his acts or omissions. And if tIme intention is to refer to a particular act, it is my opinion that the respondent did not “oppose” the appointment of the petitioner in this sense. He did not write to the principal of the school that he, the Director of the Department of Education, opposes, but that the Ministry of Defence opposes. That means that he, the respondent, refused to give his consent upon the basis of this opposition by the Ministry of Defence. It is true that the petitioner stated in paragraph 12 of his affidavit that counsel for the second respondent gave “a verbal instruction that the employment of the petitioner should be discontinued within 24 hours”, but the second respondent has denied this version . It seems to me that the letters annexed to the petitioner’s affidavit - that in which the Inspector informed the principal of time school of the opposition of the Ministry of Defence, and that in which the principal of the school informed the petitioner that lie could not be accepted as a teacher - supports the version of the respondent, namely, that the principals of schools acceded to his request not to employ teachers save with the Inspector’s consent and that in this case no such consent was given, if that is so, the petitioner can advance no contention against the respondent in regard to some positive act relating to himself, that is to say, opposition to his acceptance as a teacher, and for that reason he cannot seek the “withdrawal of his opposition” . His complaint concerns a passive act, namely, the failure to give the consent that was required by the petitioner in order that the principal of the school would be prepared to accept him. 11. The court was not asked to compel the respondent to give the consent referred to, and even had it been asked to do so, I have no doubt that the court would have had to refuse such an application . As I have said, the second respondent exceeded his authority in requesting the principals of schools not to employ teachers save with the consent of the Inspector. If that is so, this court will not compel the respondent to do the very act which exceeds his authority, that is to say, to give his consent (or to instruct the Inspector to give his consent). The court, therefore, will also not interfere with the grounds which induced the respondent to refuse his consent in this instance. Authority for this proposition - if such be needed - may be found in R. v. Barnstaple Justices, (6). ln that case the Justices were authorised to issue a license for the use of buildings as cinemas. They were asked to give their decision in regard to a building which had not yet been built, and they considered the application and refused it. It was held by the court that no order of mandamus or of certiorari should be made against them since they had in any event no power to deal with an application for the issue of a license before the building had been erected. The position in our case is similar actually to that which obtained in the case of Matossian v. Bergman , (4). ln that case too an official exceeded his authority, but in order to remedy the situation and restore the previous position it would have been necessary for the official to perform an act which the law did not empower him to do. The unlawful act had already been done. The court considered the position after the event, and found iio way to issue an order to the official in order to remedy the situation that had arisen. The unlawful act in the case before us is the approach in the circular to the principals of the schools. The court is now asked to order the respondent to withdraw its opposition to the petitioner. I have already said that the question in this case is in fact not one of opposition, but of the absence of consent. lt is clear that the court cannot compel the respondent to restore the position to what it was by giving his consent, since he has no power to consent. ln regard to time “withdrawal of opposition”, it is no doubt correct that where an official is unable himself to set aside an unlawful act on his part, the court will be competent to set aside such act (Bouchman and Shoulyan v. Bergman (5)). ln the present case, however, there was no act on the part of the respondent which can be regarded as “opposition”, so that even if an order setting aside such opposition were to be made, it would not operate as a consent, the giving of which is made a condition - albeit unlawfully - to the petitioner being accepted as a teacher. lt seems to me that in these circumstances this court has no alternative but to discharge the order nisi. OLSHAN J. The decision of the court is that the interference by the second respondent in the employment of the petitioner as a teacher in the institution of the third respondent was unauthorised in law, and that the second respondent must refrain from interfering in this matter. lt is decided by a majority to make a final order to this effect. Order nisi made absolute against the second respondent. Judgment given on February 8, 1951. Cr. A. 6/50