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§ 53. Judicial Control.

The executive power has two functions: first, to govern; second, to administer the law. In the sphere of government falls the operation of the public powers according to the constitution, especially intercourse with foreign nations. As an administrator, the state supervises the daily application of the laws in the relations between citizens and the administration and between the various organs of administration. For the first class, acts of government executed usually by the highest organs of the state, the legislature or the judiciary, it has been seen that the state is not responsible, except politically, but that in certain cases the legislature may decree compensation for special sacrifices imposed on individuals in the interests of the public. This has been done on numerous occasions in France by indemnifying the victims of war damages from the state treasury. In the case of administrative acts, a remedy for their illegal exercise by administrative officers is provided either by recourse to the courts or superior or extortion committed either in the proceedings or in the judgment; . . . Fourthly, for a denial of justice. On the French law, see Biderman, J., La responsabilité des magistrats envers les particuliers, Besançon, 1912. The German civil code, $ 839, par. 1, provides: “If an officer willfully or negligently commits a breach of official duty incumbent upon him as toward a third party, he shall compensate the third party for any damage arising therefrom.” Paragraph 2 provides that "if an officer commits a breach of his official duty in giving judgment in an action, he is not responsible for any damage arising therefrom, unless the breach of duty is punished with a public penalty to be enforced by criminal proceedings.” This last clause applies to cases of willful perversion of justice under $ 336 of the penal code and includes malicious or corrupt exercise of the judicial power. The commentaries of Planck and Staudinger explain the narrow limitations of par. 2 just quoted. It applies first to a final judgment only and does not excuse gross negligence, malice, or corruption. For all intermediate and interlocutory orders and decrees—as in negligently ordering an arrest or attachment, declining to receive evidence, failure to call a witness demanded by a defendant, a disregard of undisputed testimony—the judge is civilly liable and is not protected by the immunity granted in par. 2 of 3 839. See Nöldeke, Die civilrechtliche Haftung des Richters nach dem B. G. B. in 42 Gruchot's Beiträge zur Erläuterung des deutschen Rechts (1898), 795, at pp. 808, 821-822; Delius, Haftpflicht der Beamten, Berlin, Guttentag, 1899, pp. 206 et seq. A brief comparative statement of French and English law as to civil liability of judges will be found in 27th Report, International Law Asso. (Paris session, 1912) 659-660.

administrative body for their annulment as in excess of power or ultra vires or for their amendment on account of illegality, irregularity or misapplication, as in France, or by the use of the extraordinary legal remedies (or appeal in the federal courts) if in violation of law or of private rights, as in the United States.

The criteria between acts of government and acts of administration have varied from time to time and only the decisions of the administrative courts have furnished a safe basis for determination. The criterion of an act of government, in France for example, has varied from the political nature of the act to its extrinsic form or purpose, and finally to its intrinsic nature, which last seems to have become the prevailing doctrine. By decisions of the French Council of State it has in a general way been determined that the following broad divisions of state activity embrace acts of government, for which there is no state responsibility: the relations of the head of the state with the legislature, international relations, acts of war and diplomatic relations, vital measures concerning the internal and external safety of the state, such as the proclamation of martial law or a state of siege, the exercise of the pardoning power, etc. These governmental acts, when constitutionally exercised, escape judicial control in all countries. 2

When we come to the injuries caused by the executive power in the exercise of its administrative function, we enter a more difficult field. The state necessarily fulfills its various duties of administration through officers and inferior administrative bodies. What shall be the system of distribution of the losses entailed by a faulty or defective operation or exercise of the administrative function? In other words, to what extent does the individual injured, the offending

1 Teissier, op. cit., 129. Des actes de gouvernement by Brémond, 5 Rev. Dr. Pub. (1896), 23–75, at p. 29.

2 The tendency is to narrow the sphere of these highly privileged acts, and to enlarge the category of administrative acts, which are subject to judicial review. Fabre, J., Des actes de gouvernement, Montpellier, 1898; Michoud, L., Des actes de gouvernement in 1 Annales de l'enseignement superieur de Grenoble (1889), No. 2, p. 57; Le Courtois, M., Des actes de gouvernement, Paris, 1899. Duguit in his article “The French administrative courts," 29 Pol. Sc. Quar. (1914), 385, 402 minimizes the importance of the distinction between actes de gouvernement and actes de gestion.

officer, and the state bear the loss of such defective operation of the public service? 1

The theory of state responsibility, and its foundation in private or public law have engaged the attention of many of the most prominent jurists, who in turn have greatly influenced the decisions of continental courts. In contractual relations, there has been no dispute the principles of the civil law apply to individual and to state alike. But is the state responsible for tortious acts of officers? If so, why and according to what principles? These are more difficult questions. Modern codes and courts have decided the first question affirmatively—a juristic person may be liable for tort. But as the relation between state and officer is not one of agency or of private law, the state in France is not liable according to private but according to public law principles. In Germany private law is more generally applied to the state. The application of private law to wrongful acts of officers and defective acts of administration was supported by Gierke, Meucci, Laurent, Aubry and Rau and Demolombe, and with distinctions between acts of public power, to which it would not be applicable, and acts of gestion, to which it would be, it was upheld by Zachariae, Primker, Loening and Piloty, by Ziegler, by Bonasi and Giorgi, by Giron, and by Larombière and Michoud. See exact citations to the works of these jurists in article by Maurice Hauriou, Les actions en indemnité contre l'Etat pour prejudices causés dans l'administration publique, 6 Rev. Dr. Pub. (1896), 51–65.

The most widely accepted theories of public law responsibility have been: (a) The assumed guarantee by the state of the lawfulness of its official's acts and the compulsion upon the individual to obey the officer. This theory was originated in Germany by Pfeiffer and Zachariae and has the support of Michoud and other French jurists. Haftung des Staates aus rechtswidrigen Handlungen seiner Beamten by H. A. Zachariae. Ztschr. f. d. ges. Staatswissenschaft, 1863, 582–652. Loening, E., Die Haftung des Staates aus rechtswidrigen Handlungen seiner Beamten nach deutschem Privat- u. Staatsrecht. Frankfurt, 1879. Die Haftung des Staates für rechtswidrige Handlungen und Unterlassungen der Beamten, by R. Piloty, Hirth's Annalen des deutschen Reichs, 1888, 245–271, gives a full account of the theories, as does Michoud in his noteworthy article De la responsabilité de l'Etat à raison des fautes de ses agents, 3 Rev. Dr. Pub. (1895), 401–429; and 4 ibid. 1-31; 251-285. See also Marcq, René, La responsabilité de la puissance publique, Paris, 1911, p. 316 et seq.; and Sourdois, op. cit. (b) The theory of professional risk or social insurance, according to which the sacrifices and losses entailed by injurious acts of administration should be distributed among the community at large. This was until lately the theory of Hauriou, a leading French authority, and of Otto Mayer. The question of fault of the officer is immaterial in the application of this theory, Hauriou, article cited, and also in the 3rd ed. of his Précis, op. cit., 174 et seq. In the 4th and following editions, the theory is abandoned for the "fault” theory in acts of gestion, public and private (infra, p. 135); Mayer, Otto, op. cit., and article Die Entschädigungspflicht des Staates nach Billigkeitsrecht, Vortrag in Gehe- Stiftung, Dresden, 1904. (c) General equity, the theory of Brémond and Teissier (Brémond, op. cit., and Teissier, op. cit.) which is gaining support in the recent decisions of the French and German administrative courts. Each invasion of private rights and interests by the administration is judged upon its own merits in justice.


In order to adjust the decisions of the Council of State to a satisfactory classification and theory of responsibility, the French jurists, who have devoted more attention to this subject than those of any other country, have been impelled to draw fine distinctions among the various acts of administration. These distinctions of the French law have greatly influenced the Latin countries of Europe and of America. Besides, in France, the individual enjoys a higher degree of protection against illegal, improper, imprudent or merely injurious acts of the administration than in any other country. For these reasons the French system merits special attention and will be discussed first.

$ 54. Different Classes of Administrative Acts. Recourse of Individual

and State Responsibility. One large class of administrative acts that may violate private rights are acts of police, or, as they are sometimes called, acts of authority, or the exercise of the police power in the general interest by ordinance or administrative decree. The distinction between acts of government and acts of police is often vague; the former, it can only be said, are usually political in character, whereas the latter are not. These acts in exercise of the police power if illegal or in excess of jurisdiction give rise to an action for annulment as in excess of powers or ultra vires before the Council of State, but in theory at least the state cannot be held liable in damages. In recent years, the theory has in several cases been abandoned, the state having been held pecuniarily liable to individuals for the defective operation, even without fault, of its police service. The Council of State has decided that there is an excess of power in case of (1) incompetence, when the administrative authority encroaches upon the competence of some other authority; (2) defect of form, when the formalities required by law are not followed by the administrative authority; (3) violation of substantive law; and (4) misuse or détournement of power, when an administrative authority even though acting within its competence and following the necessary formalities, uses its discretionary power for purposes other than those for which the power was granted.

Where acts of police violate previously concluded contracts between the state and an individual, e. g., a permit for a bridge near to another, to the builder of which a monopoly had been granted, or increase materially the burdens of the contractor, an action for annulment or for damages has on several occasions been held to lie. Moreover, where acts of police are merely disguised acts of gestion, e. g., where they add to the financial resources of the state, an action lies against the state, as it does where by statute a right of action is granted.

The other large class of administrative acts are acts in administration of the public service and are called by certain authors "acts of public gestion,” as contrasted with and yet as related to "acts of private gestionor the administration or management of the private domain and property of the state. For unlawful acts of gestion, the state may be held responsible in damages by means of the administrative litigation (contentieux administratif) before the Council of State, if an act of public gestion, or before the ordinary courts, if of private gestion. The distinction between acts of authority and acts

Goodnow, op. cit. II, 230 citing Aucoc, Conférences sur l'administration, I, 467. See also Wodtke, Fritz, Des recours pour excès de pouvoir, Tübingen, 1912; Dareste, P., Les voies de recours contre les actes de la puissance publique, Paris, 1914. We cannot enter into a detailed study of the four kinds of recourse against administrative acts: (1) full jurisdiction, which has the force of a judgment and may reform or amend the act; (2) annulment, which can only cancel it; (3) interpretation; (4) repression, which is equivalent to an injunction or prohibition. See Alcindor, L., Des differentes espèces de nullités des actes administratifs, Paris, 1912. See also H. Berthelemy, De l'exercise de la souveraineté par l'autorité administrative, 21 Rev. Dr. Pub. (1904), 209–227; L. Duguit in 29 Pol. Sc. Quar. (1914), 385, 393 et seq.

2 Ripert's article supra. See also section Situations contractuelles in works cited on Responsabilité de l'Etat.

3 Hauriou, Précis, 6th ed. 410; Bigot d'Engente, A., De la responsabilité pécuniaire de l'Etat en matière d'actes de puissance publique, Paris, 1907, p. 4.

* Laferrière, op. cit., II, 187, 191. The matter of appropriate jurisdiction is among the most important questions in French administrative law. The administrative courts have an enumerated, but exceedingly extensive jurisdiction. Laferrière, I, 674 et seq.; Brémond, J., Traité de la compétence administrative, Paris, 1894; De la compétence dans les actions en responsabilité contre l'Etat by J. Perrinjaquet, Rev. Gen. du Dr., 1909, 112-126; 218-231. See also Goodnow, op. cit., II, 226 et seq., and L. Duguit in 29 Pol. Sc. Quar. (1914), 385, 401 showing the tendency to give the administrative courts jurisdiction of all suits against the state.

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