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of the state and of the commune. While admitting the distinction between acts of police and acts of gestion, the commune is in far greater degree subject to private law than the state. For example, acts of public gestion are, like those of private gestion, subject to private law rules. Again, the commune is not, like the state, relieved from liability because of the personal fault of an officer, but incurs a subsidiary liability. In Anglo-American law, the municipality is subject to rules quite different from those governing the state and other governmental bodies, inasmuch as it is liable for corporate acts, but not for governmental acts in close analogy to the European system), whereas the state on principle escapes responsibility for all acts and has admitted liability for little more than contractual obligations. The decentralized system of administration in Anglo-American law, by which local bodies may be freely sued, combined with a theoretical plenitude of liability on the part of officers may in some degree explain the non-liability of the state, whereas the centralized system of European administration demands a greater centralized liability. Communes in France, are, like the state, liable for all direct and personal damages occurring in the execution of public works, whether due to fault or not, a rule differing widely from the Anglo-American practice.

The provision of the French law of 10 Vendemiaire an IV, incorporated with modifications in articles 106 to 109 of the law of April 5, 1884, according to which communes are responsible for injuries to the person or property of private individuals due to mob violence, has been adopted in the law of many of the civilized countries. It prevails in many of the states of Germany, in Austria, in Belgium and in several states of the United States. In France, the commune is relieved from liability if it can prove that all possible precautions were taken to prevent the assembling of the mob and to make its author known, or when the municipality had no local police or armed force.2

Peeters, Traité général de la responsabilité des communes, Paris, 1888; Sourdat, op. cit., 6th ed. II, 440-452; Michoud, L., De la responsabilité des communes à raison des fautes de leurs agents, 7 Rev. Dr. Pub. (1897), 41-84; Valerius, A., Organisation, attribution et responsabilité des communes, Paris, 1912, v. 3.

Sourdat, op. cit., II, 453–479; Degroote, Henri, De la responsabilité de l'Etat et des communes à raison des dommages occasionnés par les emeutes, Paris, 1906; Poissonier, Paul, De la responsabilité le l'Etat et des communes à raison des domA recent law of April 16, 1914 amends articles 106-109 of the law of 1884 by making the state share responsibility with the commune, the proportion depending upon the degree of fault of the officers of the state. The theory of fault is superimposed on the theory of risk in the incidence of liability. The law of 1884, however, is still applicable to the city of Paris.

§ 58. Resumé.

To summarize the French system: Administrative acts are divided into acts of police and acts of gestion. Acts of police if illegal or in excess of jurisdiction may be annulled for excess of powers, but in theory, at least, no action lies against the state for damages. But if in violation of contract, the state is liable. Acts of gestion are either private or public. The former involve the liability of the state as a private person. The latter, public gestion, embrace acts in administration of the public service. The state is usually held responsible for defective and injurious acts of this kind, unless the fault of the administrative officer is so purely personal to himself and not incidental to the public service that the state is relieved from and the officer alone charged with liability. Principles of public rather than private law are applied to determine state liability. The recent tendency is to narrow the sphere of acts of police by widening the scope of acts of public gestion, and consequently to enlarge the responsibility of the state.

THE GERMAN SYSTEM $ 59. Judicial Control over Acts of Administration.

The German administrative system in the matter of judicial control over the acts of the administration in protection of private rights is very similar to the French. The administration acting as a public power is practically free from judicial control except in so far as liability of the state for wrongful acts of its officers has been assumed by the imperial act of 1910 and certain statutes in the states of the Empire. In addition, in a few cases the law has given the ordinary courts mages occasionés par les emeutes, Paris, 1912; Beaudouin, M., De la responsabilité des communes et de l'Etat en cas de troubles ou d'emeutes, Paris, 1912.

131 Rev. Dr. Pub. (1914), 445–448.


a limited control over certain acts of the administration-a right of appeal from decisions of inferior boards, such as those of the police authorities in certain cases, allegations of unjust arrest, disputed amounts of indemnity in cases of eminent domain, disputed assessments of taxes and protests against unlawful acts of police authorities. While the control of the ordinary courts is somewhat larger than in France, still by far the greater share of judicial control over acts of the administration is given in the larger states to the administrative courts. Decisions of the ministers, however, e. g., in Prussia, are not generally subjected to any administrative jurisdiction. The appeal for excess of power or ultra vires is unknown to the Prussian system. There is no administrative appeal against general acts of administration or ordinances. Only a special administrative act is subject to such appeal, although, as in Belgium, Denmark and other countries, the question of the validity of the ordinance may be considered collaterally and the enforcement of rights under it refused. Only such special acts as tend to violate private rights may be appealed from, provided a statute grants the right of appeal. The necessity for statutory provision is, however, dispensed with in the case of acts in exercise of the police power. This appeal has a suspensive effect on the administrative act, similar to the American remedy of injunction."

$ 60. Pecuniary Liability of the State.

In the matter of pecuniary liability for wrongful acts of officers, Germany adopts the well-known distinction between the activity of the state as a fiskus, the broad application of which has already been noted, and its activity as a public power. In the former case the liability of the state is one of private law by the application of articles 31 and 89 of the Civil Code, which relate to the liability of juristic persons. Section 31 reads:

Goodnow, op. cit., II, 243 et seq.; Perlmann in 34 Zeschr. f. d. privat u. öff. Recht. 98; Sarwey, O. von, Das öffentliche Recht u. die Verwaltungsrechtspflege, Tübingen, 1880, 92, 401; Der Begriff des Rechtschutzes im öffentlichen Rechte by Karl F. v. Lemayer, 29 Ztschr. f. d. privat u. öff. Recht (1902), 1–228 particularly 80 et seq. Prof. Arndt in an article Haftung für polizeiliche Eingriffe, 40 Jur. Wochenschrift (Nov. 15, 1911), 921 criticizes the distinction between non-liability for police interference through a general ordinance, and liability for interference by special order, “The association is responsible for any damage which ... a duly appointed agent may cause to a third person by an act giving rise to a claim for compensation, provided that such act was done in the execution of its or his official duties.” and section 89 provides that:

“The provisions of section 31 apply mutatis mutandis to the fiskus as well as to corporations, foundations and institutions under public


This responsibility of the fiskus as a subject of property and fiscal rights, involving the relation of agency between the state and the employee, must be founded on an act which would involve the liability of the agent himself and which is committed in the exercise of his functions and not merely on the occasion of their exercise. Before the Civil Code came into force in 1900, if the officer exceeded his powers or jurisdiction or omitted duties incumbent upon him, he was personally liable according to article 13 of the act of March 31, 1873, following in this respect the Prussian law of February 13, 1854. The officer's liability for wilful and negligent acts is now governed by section 839 of the Civil Code which provides:

"If an official wilfully 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. If only negligence is imputable to the official, he may be held liable only if the injured party is unable to obtain compensation elsewhere."

The liability of the state for administrative acts as a public power was left to the states of the Empire by article 77 of the introductory act of the Civil Code, which provides:

“The provisions of State laws remain unaffected which relate to the liability of the State, or of the communes and other communal unions (provincial, circuit, and district unions), for any damage caused by their officials in the exercise of the public authority entrusted to them; similarly the provisions of the State laws remain unaffected which exclude the right of an injured party to require compensation from the officer for such an injury, in so far as the State or the communal union is liable.”

In eleven German states the liability of the state for the acts of its officers is under this section admitted by legislation. In six states, Bavaria, Wurttemberg, Baden, Coburg-Gotha, Reuss (j. L.) and since August 1, 1909, in Prussia, the state's liability is primary and exclusive, and in five others, Hesse, Weimar, Schwarzburg-Sondershausen, Reuss (ä. L.), and Alsace-Lorraine, the liability of the state is subsidiary. In Saxony, by customary law, the liability of the state is recognized. Mecklenburg and Anhalt with a few minor exceptions have denied all liability. In the other states the law varies greatly, but the principle of liability is denied. Except as admitted by specia! statute, there is no liability for lawful exercise of the public power.2


On May 22, 1910, an imperial statute, very similar to the Prussian act of 1909, on the liability of the state for the acts of its officers, was enacted. It relates to the liability of the Empire for the acts of imperial officers. Under the Prussian and imperial statutes, if the officer in the exercise of the public power intentionally or negligently violates his official duties toward a third person, the responsibility of the officer provided for in section 839 quoted above is cast upon the state. In other words, the state has substituted its own liability for

1 Haftung des Staates u. der Gemeinden für ihre Beamten, by Otto Gierke, Deutsche Juristen-Ztg. 1909, 18–28; Die Haftung des Staates aus rechtswidrigen Handlungen seiner Beamten, by A. Dock, 16 Archiv f. öff. Recht, 244–279, particularly 257 et seq.; Die Haftung des Staats für den durch seine Organe u. Beamten dritten zugefügten Schaden, by Karl v. Stengel, Hirth’s Annalen des deut. Reichs, 1901, 481–508, 561-592; Klingelmüller, Die Haftung für die Vereinorgane nach § 31 B. G. B., Breslau, 1900 (Heft 3 of Leonhard's Studien); Hatschek, J., Die rechtliche Stellung des Fiskus im B. G. B., Berlin, 1899; Extract from 7 Verwaltungsarchiv, 424–480, particularly 436 et seq.; also V° Fiskus in Stengel's und Fleischmann's Handwörterbuch, 2nd ed.; Otto Mayer, Deutsches Verwaltungsrecht, 1st ed., I, 47 et seq., II, 65 et seq.; Bonnard, Roger, De la responsabilité civile des personnes publiques et de leurs agents en Angleterre, aux Etats-Unis et en Allemagne, Paris, 1914, 209–229.

?E.9., in case of expropriation the liability is admitted. Anschütz, G., Der Ersatzanspruch aus Vermögensbeschädigungen durch rechtmässige Handhabung der Staatsgewalt, Berlin, 1897. Extract from Verwaltungsarchiv.

3 Die Haftung des Staates für Amtsdelikte bei Ausübung der öffentlichen Gewalt nach preussischem Rechte, by Robert Coester, 5 Jahrbuch d. öff. Rechts (1911), 285–331; Gutachten of Gierke in 28 Deutscher Juristentag, 1, 102, of Herrnritt, ibid. II, 324 and of Wildhagen, ibid. III, 133; Salman, R., Haftung für Beamte in Preussen u. im Reich, Berlin, 1911; also in Jur. Wochenschrift, 1911, 78–80; Delius, Hans, Haftpflicht der Beamten, Berlin, 1909; Koerner, W., Die Beamten-Haftpflicht im Reiche u. in den Bundesstaaten, Berlin, 1911; Bonnard, R., op. cit., 209 et seq.

* The laws of the German states modify $ 839 by reason of the provisions of 88 77, 78, and 218 of the Introductory Act to the B. G. B. Up to the act of 1910, the duty of the state to make compensation for unlawful acts of imperial officers (in the

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