Seventy Five years ago, a law review article was published concerning the state of law in California. 25 Cal. L. Rev. 694 (1937).:
“The conditions of modern life have made necessary a high degree of governmental regulation, an increasingly complex governmental organization, and in connection therewith a determination of innumerable matters constantly arising which vitally affect private rights. Disregarding dicta and judicial intimations to the contrary, it is perhaps a fair summary of the decisions of the California courts to say that the writ of certiorari has been available as a means whereby governmental bodies, authorized to make binding adjudications affecting rights of persons and of property, have been controlled by the courts; relief has been granted where the procedure followed by the administrative body did not conform to statutory or constitutional requirements, or where its decision was based on a misconception of the law or made arbitrarily and without regard to the evidence. Such a division of labor between the courts and administrative agencies is eminently desirable, for the determination of such matters can often be most appropriately and expeditiously made by the governmental agency whose activities lie in the field in which the particular question arises.
“Various decisions of the United States Supreme Court and recent federal legislation indicate that a more extensive review may be necessary and desirable in the review of orders of the State Railroad Commission. Whether this may be accorded under the California Public Utilities Act or the state constitution is a question which is in a state of uncertainty and confusion.
“In a somewhat similar position has been the equally important question of the continued authority of administrative organs of the state government to make binding determinations in connection with the regulation of various activities that affect the safety and property of the individual. Professing an adherence to an extreme and seemingly unnecessary interpretation of the doctrine of the separation of powers, and disregarding or overruling numerous precedents to the contrary, the California supreme court has in several cases in the past year uniformly held that determinations of state administrative boards could not be reviewed by certiorari, for the reason that such boards cannot constitutionally exercise judicial functions. Carried to its logical conclusion this reasoning would seem to imply a denial of the continued right of such boards to make determinations of fact having any binding or conclusive effect on private rights, and it would tend to disrupt much of our administrative machinery and the methods which have been developed to protect the health, safety and property of our citizens.
“In its most recent pronouncement, however, the court has indicated that the fear of an administrative usurpation of judicial power has been effectively dispelled in its own mind by the simple device of a change in terminology. While the new terminology has served to foreclose the availability of certiorari as a means of controlling the action of state administrative agencies, the court has indicated that the same result may be achieved by the use of the writ of mandamus. Whether this will involve an extension of mandamus beyond its traditional and constitutional scope, which may at some future time produce still further vacillation and confusion in the court’s decisions, is a possibility that cannot be estimated at the present time.”
Looking back it seems as though, 75 years ago, legal dialogue was significantly more direct, honest, and to the point than it is today. Why is that? Have our senses become hardened to the preservation of private rights and separation of powers?