« AnteriorContinuar »
act, customs act, etc., provide for the liability of the state, usually in cases where the state is enriched at the expense of the individual." Projects for a law to render the state liable for the unlawful acts of its officers are now pending in the Austrian legislature.
In 1896 (Law XXVI) Hungary established an administrative court with jurisdiction over complaints of individuals injured through the acts or decisions of the administrative authorities. By Law XX of 1901 a detailed procedure was provided for. Unlawful administrative measures may be annulled or amended. There is a considerable civil liability for unlawful acts both on the part of the officer and of the political subdivision of the state for which he acts. Law VIII of 1871 with respect to judges and district attorneys, Law XXI of 1886 with respect to municipal officers, and Law XXII of 1886 with respect to communal officers all provide that these officials are civilly responsible for the damages which they cause unlawfully or by incompetence, intentionally or by gross negligence, by act or omission, in their official functions, to the state, municipality, community or to individuals, provided the damage could not have been prevented by an established legal method. The municipalities and the communes are subsidiarily liable in all cases in which the injured person is unable, by reason of the officer's financial incapacity, to obtain damages. The ordinary courts have jurisdiction. The official malfeasance of judges renders the state liable. The civil liability of royal officers is not precisely regulated by statute, but these officers are liable to the state, which may through administrative channels collect damages from the officer. The state alone is liable to private individuals, but it can be sued only in the special cases provided by statute, either before the administrative or the ordinary courts.2
Perlmann in 34 Ztschr. f. d. priv. u. öff. Recht, 109; 24 Arch. f. öff. Recht, 526; Pascaud, op. cit., 24 Rev. Gen. du Dr., 501; Randa, Die Schadenersatzpflicht nach österreichischem Recht, 3rd ed., Wien, 1914; Die angebliche Entschädigungsklage, by Dr. Karl v. Schönberger, 64 Allg. Ost. Gerichts-Ztg. (1913), 185–188, 196-200. Der Rechtsschutz der Einzelnen gegenüber den öffentlichen Organen in Oesterreich, by Carl v. Kissling, 2 Ztschr. f. Gesetzgebung (1876), 225-237. Law of July 12, 1872 in execution of art. 9 of the law of Dec. 21, 1867 on the judicial power, 2 Ann. de Lég. Etr. 353-359.
Ferdinandy, Gejza v., Staats u. Verwaltungsrecht des Königreichs Ungarn (trans. by H. Schiller), Hannover, 1909, pp. 186, 191, 194; Markus, Desider, Ungarisches $ 63. Switzerland.
Switzerland, although attributing a wide jurisdiction to its law courts, nevertheless provides a judicial control over acts of the administration by means of administrative courts. The Federal Assembly decides jurisdictional conflicts. Within the administrative jurisdiction are included the following matters: the ordinary civil rights; liberty of conscience and worship; civil status; burial; liberty of trade and industry; coinage; weights and measures; patents; primary instruction; professional licenses and other matters. The Federal Council acts as an administrative court, with right of appeal to the Federal Assembly. The cantons have in general adopted the federal administrative system."
The Confederation in its code of obligations provides for contractual and non-contractual liability for acts of officers representing the state as a fiskus. Like a private employer, however, the state is relieved from liability for wrongful acts, provided it shows that all precautions were taken to prevent the injurious act. For acts of public power, the law differs in the Confederation and in the cantons, the liability of the state being frequently subsidiary to that of the officer, and enforceable against it only on proof of an unsatisfied judgment against him. By the federal law of Dec. 9, 1850, officers are divided into classes. A direct liability of the state is possible only for acts of officers elected by the Assembly, and not of other officers (arts. 42-43). For many other officers, all responsibility, direct or subsidiary, is denied, although some cantons, as Solothurn, assume such responsibility. The civil liability of officers is also limited; in fact the Swiss law rests largely on the basis that the officer is responsible only to a superior administrative body. Even where civil liability is admitted, this body must first decide that there has been a sufficient private injury. A proposed federal law amending that of 1850 is now being discussed.
The systems of state liability prevailing in the cantons differ widely. Verwaltungsrecht, Tübingen, 1912. Laferrière's account (1, 64) is no longer accurate.
· Laferrière, I, 66.
2 Die Revision des Bundesgesetzes über die Verantwortlichkeit der eidgenössischen Behörden u. Beamten von 9. Dez. 1850, by H. Kaufmann and Carl Ott, 31 Ztschr. f. schw. Recht (1912), 601-784.
Some, like Berne, admit liability for fault, suit being possible against state or officer; Solothurn admits only a subsidiary liability, as do some other cantons; in Fribourg, Schaffausen and Thurgau, the state may be sued if the superior administrative authority refuses to declare the officer personally responsible. In some cantons, as in Fribourg, gross fault is necessary before the state can be declared responsible, in exact contrast to the French system. In Vaud, by a law of November 29, 1904, the state and communes assume primary liability for the wrongful acts of officers, reserving a right of recourse against the offending officer. 1
$ 64. Belgium and other countries.
The administrative systems prevailing in Belgium, the Netherlands, Scandinavia and Greece constitute a different group from those just described. The Belgian system may be taken as the type. It is marked by the absence of administrative tribunals, the judicial courts being competent in litigation of all kinds. The separation of powers between the administration and the courts is maintained by prohibiting the courts from all interference with the administrative power. The only recourse of the individual against unlawful administrative acts for their annulment is before the active administration itself; the ordinary judicial courts are incompetent to annul an illegal act of police or of an administrative authority, although they may refuse to give it effect. The recourse for annulment on account of excess of power, so important a remedy in France, is as unknown to the Belgian law as to the German. The legality of administrative acts thus escapes judicial control, except in so far as their execution or application is demanded. The regular courts have jurisdiction of all actions for
Pascaud, 24 Rev. Gen. du Dr., 503–504; Ziegler, E., Die direkte oder subsidiäre Haftung des Staates und der Gemeinden für Versehen und Vergehen ihrer Beamten und Angestellten in 7 Ztschr. f. schw. Recht. (n. f. 1888), 481-562; Vaud, Law of Nov. 29, 1904, Ann. de Lég. Etr., 1904, 301; Geneva, Law of May 23, 1900, Ann. de Lég. Etr. 1900, 392. The liability of officers and state in Portugal and Russia is briefly outlined in Pascaud's article, pp. 498 and 501.
: Laferrière, I, 93. A recent work on the responsibility of the state in Egypt discusses in some detail the Belgian, Italian, and other systems. Aba El-Salam Zohny, La responsabilité de l'Etat égyptien à raison de l'exercice de la puissance publique, Paris, 1914, 2 v.
damages against the state acting as a fiskus, whether contractual or non-contractual. It is otherwise with acts of public power. If legal, or if affected only with defect in form or administrative irregularity, no action lies. But if its illegality results from the violation of individual rights, the state may be sued. The Belgian courts and authors seem to agree that for faults or personal negligence of its officers in the exercise of the public power the state is not responsible. Thus the courts have held that the state, province or commune is not civilly liable for the illegal acts of customs agents, for depredations committed by troops, or for accidents to vessels in ports or on canals as the result of bad service by state officers. Communes are liable for damages done by mob violence.
Administrative officers are not liable to any greater extent than judicial officers, i. e., only for willfully wrongful intent (dol), fraud, or gross negligence. Honest mistake relieves the officer of liability. No preliminary authorization is required in order to sue officers, as it is in France and most of the countries which have adopted the French system of administration.2
§ 65. Roumania.
Roumania, in 1866, abolished its Council of State and, as in Belgium, the courts were given an administrative jurisdiction-not, however, to annul administrative acts, for which the active administration was alone competent, but merely to refuse to give them effect if judged illegal. This is only one of many cases in which Roumania has drawn upon the Belgian system for its institutions of public law. By the
1 Laferrière, I, 95. The last decision is contrary to the French law and it seems even to the Dutch law. 14 Clunet, 245; 16 ibid. 742.
2 Laferrière, I, 96; Pascaud, 24 Rev. Gen. du Dr., 504-505. By way of exception, the Norwegian courts can pass on the legality of an administrative act. Bellom in 35 Rev. Pol. et Parl. (1903), 148 citing Ussing, I., Le contentieux administratif et la juridiction administrative (trans. by Dareste), Copenhagen, 1902, p. 310. Further, on the Belgian law, see Bourquin, Maurice, La protection des droits individuels contre les abus de pouvoir de l'autorité administrative en Belgique, Bruxelles, 1912, p. 92 et seq.; Marcq, René, La responsabilité de la puissance publique, Paris, 1911, pt. 1, ch. IV; Etud sur la responsabilité des administrations publiques, by C. Beckers, 26 Rev. de l'Administration (1879), 137–168; 37 ibid. (1890), 92–123; De la responsabilité de l'état et des communes, by Edouard Remy, La Belgique jud., 1895, 1410 law of July 1, 1905, Roumania reëstablished an administrative court, by creating a new section of the Court of Cassation which was given power to pass upon acts of authority, to annul them, and in certain cases even, to compel the administration to reform them."
$ 66. Comparison of Continental Systems.
Before discussing in detail the Anglo-American system of state responsibility for administrative acts resulting in private damage, we may briefly summarize the salient features of the continental systems of state and official liability. By practically universal rule the state in its character as a fiskus or contractor or in the exercise of acts of gestion is liable in contract and in tort for the acts of its officers. In some countries, as in Switzerland, the state is relieved by proof of all necessary precautions to avoid the injurious act. When the state acts as a public power the measure of liability varies greatly from state to state. For acts of police, only a limited liability is incurred at bestin France they may be annulled for excess of power or jurisdiction, but pecuniary damages are rarely awarded; all possibility of damages was until recent years even denied. In Germany, the police ordinance must be special and must be judicially declared illegal before an action lies. In Belgium if judged illegal the courts may decline to give it effect.
For private injuries resulting from acts of administration of the public service the rules of liability differ from country to country. If the administrative act is lawful, compensation for injuries requires a special statutory enactment. France and Italy have been held to a large measure of responsibility for illegal or defective operation of the public service, this being limited only by the gross personal fault of the officer, in which event liability is charged to the officer alone. In Germany, liability for the wrongful acts of officers has been assumed by the Empire and several of the more important states. The liability is denied if only negligence is chargeable to the officer, and the injured person might have found relief in other ways than by suit for damages. The state has a right of recourse against the officer. In Spain, only
1 Le contentieux des actes administratifs en Roumanie, by Paul Negulesco, 27 Rev. Dr. Pub. (1910), 667-681.