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that of the officer in favor of an injured individual. The liability of the state is primary and excludes that of the officer, the state merely reserving a subrogated right of recourse against the offending officer. Soldiers are included among the officers covered by the statute, but the responsibility of the state is excluded in case of officers who are remitted only to the collection of fees from private persons.
The civil courts have jurisdiction, with the proviso that the state may raise the jurisdictional conflict, in which case, in Prussia, the highest administrative court, the Oberverwaltungsgericht, must first decide whether there has been an excess of power or omission of duty on the part of the officer. In this respect the statute is similar to the French system of judicial-administrative control over administrative acts. The statute applies to the minor administrative subdivisions of the state. If the individual is injured, however, by a police ordinance the action can only be brought where, after an administrative appeal, the ordinance has been declared illegal or invalid. The acts do not repeal other statutes limiting state liability, e. g., in postal and telegraph matters, accident insurance, etc.
A provision of some importance for present purposes is that foreigners may claim only if they prove, by proclamation published in the Gesetzblatt, that by reciprocity, in treaty or legislation, their own country grants similar rights to aliens. According to the statutes of Bavaria, Wurttemberg, Baden, the Mecklenburgs, both Reusses, Anhalt, Schwarzburg-Sondershausen, Saxony, and Alsace-Lorraine aliens may be denied the right to compensation if they do not prove that their own state recognized a corresponding liability in favor of Germans. In Hesse and Saxe-Coburg reciprocity must be proved, and this applies to non-nationals of the state. Moreover, Baden, Reuss (j. L.)
exercise of the public power) was regulated only by § 12 of the Land Registry Act, which covered the acts of recording officers, and by the laws of 1898 and 1904 concerning the liability of the state for errors in the administration of the criminal law. See Borchard, State indemnity for errors of criminal justice, Sen. Doc. 974, 62nd Cong., 3rd sess.
1 A similar preliminary administrative decision is required in Bavaria, Baden, Hesse and Alsace-Lorraine. See Gravenhorst, G., Der sogenannte Konflikt bei gerichtlicher Verfolgung von Beamten (Abh. aus dem Staats-und Verwaltungsrecht, 15. Heft.), Breslau, 1908.
and Saxony require a primary liability from the foreign state. Bavaria and Wurttemberg are satisfied with a subsidiary liability.
In accordance with section 839 of the Civil Code the liability of the state is excluded if the officer is only guilty of negligence and if the injured person may be compensated in other ways. The state is likewise relieved of responsibility if the injury is committed by a judge without a criminal penalty attaching; if the injured person has failed intentionally or negligently to avoid the injury by legal means; or if the officer under section 839 was not himself responsible for the act, but only an assistant.
The imperial statute contains a provision analogous to the peculiar Anglo-American doctrine of “act of state” (infra, p. 174) by providing that state liability is excluded for acts of officers in the foreign service in so far as the chancellor declares them to have had a political or international importance.
Both in France and in Germany communal officers are not always appointed by the commune or local administrative body, but by the state; nevertheless, the state is not responsible for officers who do not act directly in its behalf. If the officer was appointed in the service of the commune, the latter is liable. The statute does not relate to minor public boards, such as school boards.
SYSTEMS OF OTHER EUROPEAN COUNTRIES 61. Spain.
The Spanish system of judicial control over the administration resembles closely that of France. Since 1888 the administrative courts have had a very large control over administrative acts, and the Consejo de Estado sitting in committee of the whole acts as a Tribunal of Conflicts in case of jurisdictional doubts. Officers are liable for personal faults, as in France, and an administrative decision may be invoked to prevent the ordinary courts from assuming jurisdiction over an administrative act. The state is liable under the civil code for official torts and breaches of contract of its officers, but curiously only when the state acts tortiously through the agency of a special officer, and not when the act is committed by a regular competent official of the
1 Dock in 16 Archiv f. öff. Recht, 273.
state. If the act, however, is one which the state should by law perform or perform properly, any omission or negligent execution of the act will involve its responsibility, although this liability is avoided by proof that it has taken all precautions to prevent the injurious act. The state has a right of recourse against the wrongdoing officer. This system, both in requiring the agency of a special officer to render the state liable and the limitations upon state responsibility incurred through the act of a general officer, in conjunction with the necessity for preliminary administrative consent before an officer may be sued, weakens considerably the recourse of an individual against an injurious administrative act.1
The Act of April 5, 1904, on the civil responsibility of public officers, somewhat increased the remedies of the individual. It provides that public officers who in the discharge of their duties, by act or omission, violate any precept whose observance has been claimed from them in writing, shall be compelled to indemnify the person injured for the damage sustained. The superior hierarchy which expressly approves the act or omission, shall assume responsibility, exonerating the inferior officers. Even a minister may under this law be made responsible before a committee of the Senate.2
$ 62. Italy.
In Italy, in 1865, the French system of judicial control was abolished and one similar to that of Belgium instituted. In 1889, however, the French system was reëstablished, except that the judicial tribunals have a much greater jurisdiction than they have in either France or Spain. In fact, in this respect, it is more like the German system. Individuals in Italy have recourse against administrative decrees or measures for excess of power or violation of law, under the following limitations: (1) the recourse for excess of power will only be received by the courts if the administrative decree or measure attacked has been previously appealed to higher administrative officials and the appeal rejected; (2) when the administrative act concerns matters of recruit
1 Laferrière, op. cit., I, 27–36; Pascaud, op. cit., in 24 Rev. Gen. du Dr. (1900), 498– 499; Marvin, G., La juridiction contentieuse en Espagne. Rev. Dr. Pub., 1906, 650-661; and works of Caballero and González, supra.
2 Santamaria de Peredes, V, Curso de derecho administrativo, Madrid, 1911, p. 116.
ing or customs, recourse is open only for incompetence and excess of power, and not for violation of law; and (3) no recourse is admitted against measures of the government acting as a political power. The discussions as to what is included under political power correspond largely to the French discussions concerning acts of government."
The Italian law as to responsibility of the state for acts of officers follows closely the classic distinctions between acts jure imperii and acts jure gestionis. In the latter case alone is responsibility admitted, and then according to the rules of the private law, being in this respect more nearly analogous to the German than to the French system. This is perhaps due to the fact that the judicial tribunals are competent in actions against the state, although the administration may raise the conflict if it believes the act in question was done jure imperii.
Officers are liable for gross faults, but preliminary consent of the Council of State must be obtained before an action can be brought against them for acts relating to their office. The ordinary rules of liability for fault have been modified by the courts with respect to officers. For example, they are not responsible for simple errors of law "unless they reveal a complete ignorance of the elementary rules of the profession”; nor for faults committed when it is absolutely impossible to conform to the law; nor for acts done in executing orders from a legitimate authority not having a character manifestly wrongful and illegal; nor, finally, for acts done in case of extreme urgency and for the public interest.?
1 Laferrière, I, 73, citing Bertolini, P., Delle garanzie della legalità in ordine alla funzione amministrativa, Rome, 1890, 209.
2 Laferrière, I, 83-84, citing Bonasi, Della responsabilità penale e civile dei ministri et degli ufficiali pubblici, Bologna, 1874, pp. 330, 346, 349 and Giorgi, Teoria della obbligazione, Florence, 1882, vol. V, 284. See also Pascaud, op. cit., 24 Rev. Gen. du Dr. (1900), 500; Sarwey, op. cit., 202. Italy has an extensive literature on this special subject, second only to that of France. Among the more important contributions which have been examined are the following: Giliberti-Messina, A., Responsabilità civile dello stato e delle altre persone giuridiche per fatti ingiusti dei propri agenti, Palermo, 1909; Giaquinto, A., La responsabilità degli enti pubblici, v. II, teoria speciale, 2nd ed., S. Maria, 1914; La responsabilità della pubblica ammistrazione in relazione alle guirisdizioni ammistrative, by E. Presutti, 41 La Legge, 139–144, 208-216, 354–360, 389 396 and 42 La Legge, 6–7; Della responsabilità indiretta delle ammistrazione pubbliche, by L. Meucci, 21 Archiv. giur. 341-406; Alcune osservazioni sulla responsabilità dello stato per i danni cagionati dai pubblici $ 62a. Austria-Hungary.
In Austria, up to 1867, there was no administrative court having the power to reform or annul decisions of administrative authorities within their jurisdiction, but in violation of the law or of the rights of private parties. The diets and their committees in the affairs of the province, and the ministers in matters of the state, enjoyed most extended powers, entirely free from judicial control. But the law of December 20, 1867, which separated justice from the administration, provided that individuals injured by administrative decisions or measures might have recourse against the official or board before the High Court of Administrative Justice, which was brought into operation by the law of October 22, 1875. For a violation of political rights, the Supreme Court is competent. Recourse is usually had for annulment of the protested act, reformation being rare. The individual also must have exhausted his appeals to the highest administrative authorities. The Supreme Court acts as a tribunal of conflicts between the judicial and administrative competence."
There is no provision of law in Austria which renders the state liable for the acts of its officers, except in a subsidiary way for the acts of judges (supra, p. 130, note 5). The constitutional law of December 21, 1867 did hold employees of the state responsible for the observance of the laws in their official acts, and made provision for a subsequent law defining the liability of the state. But this official responsibility seems to be limited to a disciplinary control, for inasmuch as no law has been passed carrying the constitutional provision into effect, the courts have been loath to hold the state responsible in damages for acts of its officers, and the civil liability of the officer is exceedingly limited. Numerous statutes, such as the patent act, expropriation ufficiali, by 0. Scalvanti, 2 Riv. Dir. Pub. (1892), 149–173; La responsabilità dello stato per gli atti dei suoi funzionari, by A. Bonasi, 1 Riv. Ital. p. 1. sc. giur. (1886), 1-33, 177–190; Della responsabilità dello stato in Gabba's Questioni di diritto civile, Turin, 1885, p. 109. On the responsibility of officers see especially Mottola, Domenico, Trattato in diritto ammistrativo sulla responsabilità degli ufficiali di governo e pubblici funzionarii, Catanzaro, 1894; La responsabilità dei pubblici funzionarii, by, G. Quaranta, 16 Il Filangieri, 273-297, 321-343, 418-443 (a good comparative study); and La responsabilità dei pubblici ufficiali, by S. Scolari, 25 Nuova Antologia, 475–490.
1 Sarwey, op. cit., 203 et seq.; Laferrière, I, 60.