iary liability. For example, the establishment of a state industrial monopoly, as in the case of the recent Italian law of April 4, 1912 and the Uruguayan law of 1912, establishing a state insurance monopoly, seriously interferes with private interests. Yet, in the absence of a special legislative provision granting an indemnity to private interests thus prejudiced, there is no municipal liability of the state.1 France in 1835 established a tobacco monopoly and on other occasions by an act of legislation interfered similarly with the enjoyment of private rights without paying compensation.2 On the other hand, in 1872, when France by legislation established a match monopoly, and when on March 29, 1903, Italy undertook the municipal ownership of certain public services a statutory indemnity was provided for the corporations and individuals thereby injured.3 In France, in which coun

1 Gaston, Jèze, De la responsabilité pécuniaire de l'Etat italien envers les nationaux et les étrangers, à raison de l'établissement d'un monopole public des assurances sur la vie, 29 Rev. Dr. Pub. (1912), 433-452. See also on the Uruguayan statute, article by same author, 30 Rev. Dr. Pub. (1913), 58 et seq. On the Italian law see the exhaustive opinion (Consultation) by E. Clunet, with opinions of many prominent jurists, rendered in behalf of the insurance companies, Paris, Jan. 28, 1912 (51 p.) to the effect that such a law was a violation of the property rights of foreigners, and the state incurred an international responsibility for such injury, on the theory of expropriation. To the effect that it is not in violation of international law, but that on equitable grounds Italy should grant compensation to foreigners, see Wehberg, H. Das Völkerrecht u. das italienische Staatsversicherungsmonopol, Wien, 1912, 25 p. Clunet states (p. 15) that Uruguay, on the protests of Great Britain and France receded from its position in establishing a monopoly, and limited itself to operating an insurance fund in competition with private companies. Foreign protests against the Italian law have had no such effect. Duguit believes that an action for indemnity should lie, even in the absence of legislative provision, whenever the state establishes a monopoly. De la responsabilité pouvant nâitre a l'occasion de la loi, 27 Rev. Dr. Pub. (1910), 637–666. Ibid. George Scelle on the Uruguayan law in 30 Rev. Dr. Pub. (1913), 637, 653 et seq. On the Italian law see also C. Audinet in 20 R. G. D. I. P. (1913), 5 et seq., and Lordi, L., Responsabilité int. de l'Etat italien à raison de l'établissement du monopole, etc., Rome, 1913. See, however, J. Barthélemy in 24 Rev. Dr. Pub. (1907), 92-101. Other illustrations of successful diplomatic protests against acts of legislation impairing the rights of foreigners, and the award of indemnities, are cited infra, § 75.

2 Teissier, op. cit., 16. A noteworthy case is that of the law of Sept. 18, 1870 opening to the general public the profession of printer and bookseller, which theretofore had been limited to a few licensed persons, whose rights were very valuable. No indemnity was granted. (Decision of the Conseil d'Etat, April 4, 1879.)

Other states have made similar provision for individuals injured by an act of

try this question has been more exhaustively studied than elsewhere, it was formerly the case that executive regulations carrying out a statute were assimilated to acts of the legislature in the matter of immunity from responsibility, provided they were, like legislation, general and impersonal. This is still the general rule, though the acte réglementaire has in numerous cases within recent years been regarded as an act of administration simply, and subject to its criteria in the matter of state responsibility. The acts of subordinate committees of the legislature or of bodies to whom the legislature has delegated a portion of its sovereign powers likewise are withdrawn from the revisionary powers of the highest administrative court (the Conseil d'Etat), and from the possibility of state responsibility.2

An important limitation upon the immunity of the state from pecuniary responsibility for acts of legislation is contained in the law of France and probably of other continental countries. French courts have frequently held the state liable in damages to a concessionary with whom it has contracted, for the injuries caused him by the enactment of new legislation which increases the burdens of his concessioncontract. There is thus a contractual limitation upon the irresponsibility of the state for legislative acts. The payment of indemnity for increase of the contractor's burdens by legislation is expressly provided for in numerous concession-contracts. When not so prolegislation; e. g., Switzerland indemnified the owners of existing distilleries when the Confederation undertook the manufacture and importation of spirits (art. 18 of the federal law of Dec. 23, 1886). Switzerland even indemnified persons financially interested in the culture of absinthe, after having prohibited trade in the liquor drawn from that plant (art. 4 of the federal law of June 24, 1910), 20 R. G. D. I. P. (1913), 21. Opinion of Ernest Roguin in Clunet's Consultation, supra, 49. A bill now pending in France (Feb., 1915), prohibiting the sale of absinthe, provides for indemnities to manufacturers.

125 Rev. Dr. Pub. 38 et seq. Despax, De la responsabilité de l'Etat en matière d'actes legislatifs et réglementaires, Paris, 1909; Le Roux, Pierre, Essai sur la notion de la responsabilité de l'Etat, Paris, 1909, p. 67; Tirard, op. cit., 150; Sourdois, op. cit., 127. The close relation between a police ordinance (which ordinarily involves no pecuniary liability of the state) and an act of legislation is apparent. Again, the French courts have occasionally had difficulty in distinguishing whether an executive regulation is an acte réglementaire, an act of legislation, or an administrative act. Teissier, G., V° Responsabilité, in Bequet's Répertoire de droit administratif, § 27 and cases there cited.

vided for, the legislation must seriously prejudice the rights of the contractor, and the damage must be direct, special, and material, before an action will lie. Thus a decrease in the territorial limits of a district in which a notary was authorized to exercise his functions, thereby diminishing his field of income did not, in France, render the state liable.1 Where the action lies, the statute or decree is not declared void; the state is merely held liable for the special injury. It is difficult to specify the nature of the legislative act or contract or the extent or directness of the prejudice which would involve the responsibility of the state. The decided cases are the only reliable criterion.2

The limitation upon legislative irresponsibility by contract previously concluded between the state and a private person is of exceedingly limited application in the United States. It has been decided by the Court of Claims that the Government, as a contractor, cannot be held liable for its public acts as a sovereign. For example, a new tariff act increasing the cost of goods to be furnished under a prior contract, constitutes no breach of the contract by the United States. Nor does a change of policy on the party of the government involve any pecuniary liability. The constitutional guarantee against the impairment of the obligation of contract by legislation, would seem to apply to contracts concluded between a state of the United States and a private citizen. The citizen, however, cannot without its consent sue the state for damages in its own or in the federal courts. His rights are protected as far as possible by holding the legislation unconstitutional either under the "obligation of contract"

"due process" clause, which latter would apply also to federal legislation violating contracts concluded by the United States. In a 1 Aff. Payerne, Cons. d'Etat, Jan. 13, 1865, Leb. 65, p. 52.

2 Tirard, op. cit., 238-241 and cases cited; Teissier, op. cit., §§ 25, 26, 162; Ripert, H., Des rapports entre les pouvoirs de police et les pouvoirs de gestion dans les situations contractuelles, 22 Rev. Dr. Pub. (1905), 1–39; Jèze in 24 Rev. Dr. Pub. (1907), 440 and 452; 25 ibid. (1908), 61.

* Deming v. U. S., 1 Ct. Cl. 190; Jones and Brown v. U. S., 1 Ct. Cl. 383; Wilson v. U. S., 11 Ct. Cl. 513. But the highest executive officers appear to have authority to relieve contractors from inequitable burdens thrown upon them by such legislation, 28 Op. Atty. Gen. 121 (Wickersham, Atty. Gen., Dec. 22, 1909).

Kendall v. U. S., 1 Ct. Cl. 261; 7 Wall. 113.

few countries besides the United States, courts have the power to declare legislation unconstitutional, although there is no pecuniary liability of the state on account of the private damage resulting from the unconstitutional statute.

Legislative officers are universally immune from civil liability for their official acts. Their responsibility is usually political and for penal offenses they are amenable to the criminal courts.

It will be observed later that in the case of international claims for injuries to aliens arising out of acts of legislation, a government cannot always protect itself from liability by alleging that a certain statute or decree violating private rights was an act of legislation and of public power, which in municipal law rendered the state immune from responsibility.

$52. Judicial Acts.

The judicial functions of the state being in the highest sense of a Sovereign character relieve the state on principle from all civil liability, regardless of the injury sustained by individuals from maladministration of justice. The rehabilitation of wrongly convicted persons is, however, provided for in most civilized states. Within recent years, in addition, practically all the more important countries of continental Europe (Germany, France, Norway, Denmark, Sweden, Austria-Hungary, Spain, Portugal, several cantons of Switzerland), and Mexico as well, have enacted statutes granting an action for indemnity against the state, under certain circumstances, for errors of criminal justice, i. e., for the erroneous detention, conviction and imprisonment of an individual. A bill to this effect has recently been in

1

1 Full judicial control over legislation appears to exist in Argentine, Greece, Norway and Roumania. In Australia, Canada and the South African Union it is more limited. In various countries, e. g., Portugal, Nicaragua, Honduras, Panama, Cuba, Haiti, Venezuela, Costa Rica, Paraguay and Bolivia the constitution expressly provides that the courts shall disregard unconstitutional laws, but in some of these countries, e. g., Haiti, the power is never exercised, and in others, e. g., Bolivia and Costa Rica, the legislature has power to construe the constitution.

The system differs somewhat from country to country. The details are worked out comparatively in Senate Doc. 974, 62nd Cong., 3rd sess., "State indemnity for errors of criminal justice," by Edwin M. Borchard.

troduced in Congress and in several states of the United States. In Wisconsin and California it has already become a law.1

The liability of judicial officers varies considerably in Anglo-American and in continental law. The overwhelming weight of authority in Anglo-American law is to the effect that the judge having jurisdiction of subject-matter and of parties, whether his jurisdiction be general or limited, is not civilly liable where he acts erroneously, illegally, or irregularly, nor is he liable even for a failure to exercise. due and ordinary care, nor where he acts from malicious or corrupt motives. Excess of jurisdiction must, however, be distinguished from absence of jurisdiction. Where the judge knowingly acts without jurisdiction, he forfeits his judicial immunity.2 The tendency is to assimilate judges of limited jurisdiction to those of higher courts in their immunity from civil suit, the only distinction being that in the case of superior judges their competence is presumed, whereas in the case of judges of limited jurisdiction, they must prove it.3 Quasijudicial officers or officers exercising discretionary power, are in general held immune from liability when they have acted within their jurisdiction honestly and without malice.4

In countries of the civil law the liability of judges is much greater. On principle the continental judge is liable for his tortious acts in excess or abuse of his power, and in Austria-Hungary the state is subsidiarily liable.5

1 Wisconsin, Chapter 189 of the laws of 1913, creating § 3203a of the Statutes; California, Act of May 12, 1913, Chap. 165 of the laws of 1913.

2 Mechem, F. R., Public offices and officers, Chicago, 1890, §§ 628, 629; Bradley v. Fisher, 13 Wall. 335, 351; Grove v. Van Duyn, 44 N. J. L. 654; Hughes v. McCoy, 11 Colo. 591; Throop, Public officers, New York, 1892, § 713; 23 Cyc. 568-569 and authorities there cited. By statute, it is in some states provided that a judge is liable in damages for the arbitrary refusal of a writ of habeas corpus. This exception to the general rule is rarely invoked.

3 Mechem, op. cit., § 630.

* Ibid., §§ 636–643.

5

See, for example, Austria, art. 9 of the organic law of Dec. 21, 1867, and the law of July 12, 1872, on the judicial power and the right of action for torts by judicial officers in the exercise of their functions. Also, Spain, Ley de Enjuiciamiento Civil, 1881, art. 903 et seq.; Civil Code, §§ 203, 232; penal code, §§ 346-353. Section 505 of the French code of civil procedure provides that judges are liable to civil suit in the following cases: First, if there has been willful wrongdoing (dol), fraud (fraude),