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of gestion is vague and uncertain, and has been worked out inductively from the decisions of the Council of State holding the state immune from or subject to responsibility for particular administrative acts."
Among acts of private gestion are included the exercise of the state's functions as a property owner, as the entrepreneur of an industry, such as the tobacco and match industry in France and Italy and the porcelain industry in Prussia, or in the operation of certain public utilities, such as state-owned railroads in most of the countries of Europe. In these matters, either by legislation or judicial decision, the state in France as elsewhere is subject to the principles of private law.
The liability for acts of public gestion or operation of public works is determined according to principles other than those governing private legal relations. In the celebrated Blanco decision which determined the jurisdiction of the French Council of State in suits against the state arising out of the administration of the public service, it was held that the responsibility of the state for injuries caused to individuals by acts of persons whom it employs in the public service cannot be governed by the principles established by the civil code for the relations of individual to individual; that this responsibility is neither absolute nor general; and that it has special rules which vary according to the needs of the service and the necessity of reconciling the rights of the state with private rights.? From this decision the equitable nature of the decisions of the Council of State will become apparent, each defective act of administration being judged on its merits.
Some of the services in which the state has been held responsible on the theory that there has been a defective operation of an act of public gestion or service have been torts of treasury officers on the verifi
1 Grivellé, De la distinction des actes d'autorité et des actes de gestion, Paris, 1901; Hauriou, La gestion administrative, Paris, 1899; Le Roux, op. cit., 102. Duguit in 29 Pol. Sc. Quar., 402–403 minimizes the distinction.
2 Tribunal of Conflicts, 8 Feb. 1873, Dalloz, 73, 3. 20; Sirey, 73. 2. 153. The Council of State may pass likewise upon the liability to individuals of departments, communes, etc., according to the Feutry decision in 1908. Duguit in 29 Pol. Sc. Quar., 401.
cation of bonds, injuries caused to a private display at a state exposition, damages caused by soldiers or by army horses in actual commanded services, i. e., under orders of an officer, accidents caused to workmen in government arsenals, injuries to private property in target practice, loss of documents confided to public authorities, damages by collision between public and private vessels, damages caused to vessels by negligent acts of port officers, and other cases. By statute, damages are granted to individuals prejudiced by the defective operation or injurious results of various public services. So, for example, a limited compensation is granted for losses in the postal service; for erroneous tax and customs collections; for temporary occupation of property in carrying on public works or in erecting public buildings; for military requisitions; for property taken for defense in war times prior to actual belligerent engagements; and in many similar cases which may be assimilated to quasi-expropriation.?
In Germany, the activity of the fiskus, for which liability is admitted in principle, includes what the French designate as acts of gestion, both public and private. The German state is liable as a fiskus in its character as the owner of real property, of public works, domains, forests, roads, and provision magazines; when it emits loans or derives money from various sources of revenue notably commerce in tobacco or salt, or establishes a lottery, operates a railroad or a telegraph service (though here the officer rather than the state is made liable), or when through its officers it enters into contracts or other acts necessary to the administration or development of these various undertakings. In Germany, Austria and Switzerland the private law of obligations, including contractual and non-contractual liability,
1 Teissier, op. cit., 153 et seq.; Michoud in 4 Rev. Dr. Pub. (1895), 6; Le Roux, op. cit., 102; Sourdat, A., Traité général de la responsabilité, 6th ed., Paris, 1911, p. 393 et seq.; Roger, L., De la responsabilité civile de l'Etat, Paris, 1900, p. 48; Duguit, Léon, De la situation des particuliers à l'égard des services publics, 24 Rev. Dr. Pub. (1907), 411-439.
The Act of May 3, 1841 governing expropriation for public use (art. 48) has been amended by art. 2 of the law of April 21, 1914, confining the compensation to the actual and certain damages caused by the eviction. A discussion of the liability of France for injuries inflicted in war operations is contained in Vaulx, H. de, La responsabilité de l'état français à raison des dommages causés par les faits de guerre, Verdun, 1913.
is applied to the state to a much greater extent than in France, although, as a matter of fact, while the French administrative courts firmly deny the applicability of the principles of the civil code, the doctrines of liability of private law are nevertheless generally applied.
$ 55. Respective Liability of State and Officer.
One of the most important consequences in France of the division between acts of private and public gestion concerns the respective liability of the state and the officer. In the former case, private gestion, the state is responsible for all the faults of its employees within the scope of their authority according to section 1384 of the civil code. In the latter case, gestion of the public service, on the contrary, the state is only liable for such defects in the service as are not due to the grave fault or personal malice of the administrative officer. In other words, the courts distinguish between a fault of the service and a personal fault. The first may be the result of an administrative act badly or imprudently executed, or of an order carelessly given or understood; the second consists of gross faults, torts or malfeasance in which the personal passions of the officer predominate over the defect in the service. For these personal acts, the officer alone is liable before the judicial tribunals, without any liability of the state; but the administrative courts, in order to prevent an individual recourse against an officer from bringing into question an act of administration, thereby infringing the time-honored principle of the freedom of the administration from interference by the courts, have reserved the right to determine by preliminary inquiry whether the wrongful act in question was an official administrative or a personal fault. In England and
1 Further details must be omitted. As to the French administrative jurisdiction see Goodnow, op. cit., II, 217 et seq., and as to the Tribunal of Conflicts, Goodnow, II, 257. See also Dicey, A. V., Law of the constitution, 7th ed., London, 1908, ch. XII, particularly p. 395. Some of the misconceptions of Dicey's view of the French system are pointed out in Edmund M. Parker's criticism of the 6th ed. in his article State and official liability, 19 Harv. L. R. (1905), 335–349 and of the 7th ed. in 3 Amer. Pol. Sc. Rev. (1909), 362–370. See also Laferrière, op. cit., II, 189. It is often exceedingly difficult to distinguish the excess of power (for which an appeal for annulment will lie) from the defect of service (for which an action lies against the state) and from the personal fault (for which an action lies against the officer). It seems that the action for annulment and against the officer for damages may be brought for
the United States, personal liability of officers is much greater, for not merely the malicious exercise or abuse of power, but all excess of authority, use of excessive force, invasion of private right by mistake of his authority or of the law or in the existence of certain facts upon which his action depends, or even, in this country, an act under apparently lawful authority but resting upon an unconstitutional statuteall these are considered personal acts of the officer which render him liable."
A principle which long prevailed in French law, and has its counterpart in the law of most of the continental countries, provided that the officer cannot be sued without the preliminary consent or authorization of the higher administrative courts. This was an inheritance from the Roman law, and was intended not merely to prevent invasions of the administrative competence by the judicial tribunals, but also to protect the officer from unjust suits. This preliminary administrative decision was provided for by art. 75 of the Constitution of the year VIII, but it has been repealed in France by the decree of Sept. 19, 1870, which instead penalizes the institution of any vexatious or unjustified suit against an officer.2
$ 56. Limitations on State Liability for Administrative Acts.
The distinction between acts of police and acts of gestion of the public service has, by recent decisions of the German and French administrative courts, become vague, partly because cities have been held to a considerable responsibility for the maladministration of police functions and partly because certain acts of police formerly involving an immunity from responsibility have lately been held to give rise to a right of action.3
the same act. See Laferrière, I, 646. See an interesting thesis by Jean Depaule, Etude historique sur la responsabilité des fontionnaires publics, Carcassonne, 1902, especially pp. 107, 189.
"Ernst Freund in article Private claims against the state, 8 Pol. Sc. Quar. (1893), 646. The tendency now is to relieve the officer from pecuniary liability for acting under a statute later held unconstitutional. As to the distinction, in English law, between misfeasance and non-feasance in the liability of public authorities, see W. Harrison Moore in 30 Law Quar. Rev. (1914), 276–291; 415-432.
Goodnow, op. cit., II, 171 et seq.; Laferrière, op. cit., I, ch. VII, 637 et seq. * The decisions of the Council of State since 1903, which indicate the new trend There is no longer any safe criterion for establishing the nonresponsibility arising out of acts of police. While practically every administrative act may give rise to the responsibility of the state, there are nevertheless numerous limitations on any potential liability. First, acts which are non-contractual and regular in form can give rise neither to an action for annulment nor indemnity, in the absence of statute. Similarly, those which may be judicially corrected by annulment for excess or wrongful use of power or illegality or irregularity give rise merely to administrative appeal. General administrative acts give rise to an action for indemnity only when they are directed against particular individuals and then only when the illegality cannot be cured by an action for annulment and when the illegal execution of the act has violated the legal right of the individual.? Again, the fault which would render the state liable must be strictly a defect in the service and not be due to a personal fault of the officer. Similarly, the state is relieved from liability by force majeure, or where the injury is caused by the negligence of the victim, or by a third person, or where the state, as is frequently the case, exonerates itself by express legislative provision, e.g., for the destruction of infected animals, for quarantine, etc. In general, the lawful operation of a public service, even though it causes injury, renders the state immune from responsibility except where especially undertaken by statute. Moreover, the damage must be direct and not remote; it must be material; it must be certain and not merely probable; and it must be present and actual and not merely future.3
$ 57. Liability of Municipalities.
The theory of responsibility in the continental countries is practically the same in the case of all governmental bodies, the state, city, commune or district. It is based upon the theory of the juristic person. In France, some slight differences are to be noted in the responsibility of the law are presented chronologically by Sourdois, op. cit., 50 et seq. Teissier, as one of the judges of the Council of State, has had an important influence in shaping the law. See also Duguit in 29 Pol. Sc. Quar., 402-403.
Teissier, op. cit., ch. III, $ 2. ? Ibid., ch. III, § 3. 3 Ibid., ch. IV.