acts of special officers involve the responsibility of the state, but where the law imposes a definite duty upon the state it may be liable for its officer's misfeasance or non-feasance. The officer is liable for the omission of acts, performance of which is demanded of him in writing. In Austria liability is assumed by the central government only for wrongful acts of judicial officers, a constitutional provision for general liability for acts of administrative officers never having been carried into effect. In Hungary, as well as in Argentine,1 local subdivisions of the government have assumed a large measure of responsibility for the wrongful acts of administrative officers, although, as in some of the cantons of Switzerland, liability is subsidiary to that of the officer and depends upon the production of an unsatisfied judgment against him. The central government, as in Austria, is liable for judicial misfeasance, and for acts of administrative officers, where provided for by statute. In Belgium, the freedom of the administration from judicial control, has also limited the liability of the state, except where admitted by special statute, to acts of private gestion. Officers, however, are liable for gross faults. Finally, the principles of liability on the continent extend with slight modifications to all political subdivisions of the state-communes, districts, departments, etc., in contradistinction to the Anglo-American principle which subjects municipal corporations to rules quite different from those governing the central government, state or federal.

ANGLO-AMERICAN SYSTEM

§ 67. Judicial Control over Acts of Administration.

In the United States and Great Britain the judicial control over administrative acts is exceedingly great, in direct contrast to the rule prevailing in France and in the other countries having a similar administrative system. This control is exercised in various ways: first, acts of officers done under color of office but not in accordance with law are justiciable in the ordinary courts. The officer either abusing his powers or acting without jurisdiction, may incur a civil or criminal liability, under limitations to be discussed hereafter. Again, the orders of administrative authorities, if contrary to law, may be enjoined, or Lopez, L., Derecho adm. argentino, Buenos Aires, 1902, pp. 215 et seq.

if the authorities fail to carry out a duty to individuals which the law imposes, mandamus will issue. The violation of an administrative order, again, may involve a penalty. In the enforcement of the penalty before the courts, the latter will pass upon the legality of the administrative order.1 The courts will not interfere with the use of discretionary powers invested in administrative authorities by the law, but only with their abuse, e. g., failure to grant a hearing or notice, and similar violations of private right. The remedy before the harmful act has been committed is generally against the threatened act by petition for injunction, or if unfair or illegal, by request that it be reviewed and annulled or amended. After commission of the act, the remedy is an action for damages against the officer, within limitations to be noticed, or against the state or public corporation, in so far as suit is permitted.

§ 68. Suit for Pecuniary Damages Liability of Municipal Corporations.

On principle, suits against the central government cannot be brought in England or the United States, without the consent of the government. This permission is in general limited to suits on contract, and excludes liability for the tortious acts of officers. One reason for this immunity lies partly in the fact that the decentralized system of administration throws a large share of the exercise of public powers upon political subdivisions of the state and local bodies and corporations, which are held to a considerable measure of liability, analogous in many respects to that of the state in continental Europe. In the United States, it is only in the case of municipal corporations that the distinction of governmental and private or corporate functions, as a criterion of liability, has been adopted. So, for example, American cities engaged in carrying on gas works, water works, the ownership and management of wharves and the towing of vessels for profit, have been held to respond in damages for the wrongful acts of their officers, agents, or servants, provided these wrongdoers acted within

1Goodnow, op. cit., II, 144, 190 et seq. The federal courts in the United States have a very limited administrative jurisdiction, the remedy being practically limited to appeal. Goodnow, II, 210. See also T. R. Powell, Administrative exercise of the police power, 24 Harvard L. R. (1911), 268-289, 333–346, 441-459, particularly 338,

441 et seq.

the scope of their apparent authority, or their misconduct was ratified by the municipality.1

On the other hand, a municipal corporation has been held not liable for the torts of its fire or police departments, nor for those of its board of health (except in special cases, by statute) or of education, nor for those of any other officers or agents in the discharge of functions which are primarily governmental and incumbent upon the state, but the performance of which it has delegated to the municipality. Neglect of officers in guarding prisoners, or in caring for jurymen, or in keeping jails or other public buildings or highways in repair will not subject the corporation to legal liability.2 Injuries to private property under the valid exercise of the police power give the individual owner no redress against city, state or officer. As a matter of fact, the line of distinction between governmental and corporate functions is often exceedingly vague. Tests which have been applied to determine the governmental character of the act of administration are: that the duty is enjoined upon the city by law; that the service is performed for the general public; and that the city, in its corporate capacity, receives no special benefit from the act.3

Municipal corporations are now by state statute compelled to assume liability for numerous acts inflicting damage upon private individuals which by common law involve no responsibility. Thus, damage to private property in the construction of public works, damage by the action of health officers, the destruction of property by mobs, among other matters, is compensated for by numerous municipal corporations.*

A distinction is made in the United States between municipal cor

1 Burdick, F. M., The law of torts, 2nd ed., Albany, 1908, p. 108; Goodnow, F. J., Municipal home rule, New York, 1906, ch. VII, VIII; Dillon, J. F., Commentaries on the law of municipal corporations, Boston, 1911, vol. IV, ch. 32, § 1610 et seq., Bonnard, op. cit., 136 et seq.

2 Burdick, op. cit., 42, 110; Powell, 24 Harvard L. R. 441. See the leading case of Hill v. Boston, 122 Mass. 344.

See the well-reasoned opinion in Evans v. City of Sheboygan (Wisconsin, 1913), 141 N. W. Rep. 265.

4 Dillon, op. cit., IV, §§ 1636-1637.

porations and what are known as quasi-corporations-townships, counties, school districts, etc.-according to which suits in tort, except when permitted by express statute, may not be brought against the latter, inasmuch as they are considered agents of the central government for greater convenience in administration, and share the immunity from liability for tort which is enjoyed by the state.1

§ 69. Principle of State Immunity from Pecuniary Liability.

It has been observed that on principle the central government in English and American law is immune from liability, except in the limited measure defined by statute. This principle of non-liability has been explained on various grounds-based on history, fiction, convenience, and expediency. The best-known of these grounds are that the King can do no wrong, which declaration was applied to the sovereign and state; 2 that the King cannot issue a writ to himself; 3 that there is an inconsistency in the idea of supreme executive power and subjection to suit; that a state or nation would suffer an indignity in being compelled to submit to a judgment and execution; 5 that it would embarrass the state in the performance of its duties, to subject it to suit at the will of individuals, and to submit the control of its instruments and means of carrying on the government, and its money and other property, to judicial tribunals; that states should not be coerced to pay debts which for various reasons they might not be willing or conveniently able to pay.7

4

6

In view of this limited jurisdiction of courts over suits against the state, and the wide liability of officers with the resulting frequency

1 Dillon, op. cit., IV, § 1638 et seq.; Burdick, op. cit., 106; Goodnow, Comparative administrative law, II, 152.

2 Goodnow, op. cit., II, 154; Bonnard, op. cit., 31, 75 et seq.

U. S. v. Lee, 106 U. S. 196, 206.

'Gray, J., in Briggs v. Light Boats, 11 Allen, 157 quoted in U. S. v. Lee, 106 U. S. 206.

'John Marshall in the Virginia Convention, 3 Elliott's Debates, quoted in Hans v. Louisiana, 134 U. S. 1; also Matthews, J., In re Ayers, 123 U. S. 443.

U. S. v. Lee, 106 U. S. 196, 206.

'Marshall, C. J., in Cohens v. Virginia, 6 Wheat. 264, 406, thus suggests the reason for the adoption of the eleventh amendment. See W. Trickett in 41 Amer. L. Rev., 364-365.

of suit against officers as organs of state activity, it becomes important to determine when a suit against an officer is in reality a suit against the state, and within its protective immunity. In Great Britain those who actually are agents and instruments of the Crown in its governmental activities are shielded by the Crown from liability. The distribution of governmental functions in England among incorporated local administrative boards and government departments, such as health boards, commissioners of works, dock and bridge trustees, etc., enables an injured individual to have recourse against the corporation in cases where he would have no action against the Crown. A distinction seems, nevertheless, to be drawn between these incorporated bodies in fulfilling public functions as a substitute for private enterprise and as a branch of general governmental administration. For the wrongful acts of its employees in the former capacity, the corporation is liable, but not in the latter case.1

In the United States it has often been difficult to distinguish a suit against an officer from a suit against the state in the name of an officer. The general rule now is that where the adverse interest is in the state, against whom alone relief is asked and judgment will effectively operate, the action is against the state, and, under the prohibition of the eleventh amendment, not within the jurisdiction of the federal courts.2 The narrow view expressed in Osborn v. The Bank, that a state is not sued unless a party to the record has been definitely rejected. However, it is clear that the mere fact of being a state officer acting to benefit the state should not be enough to shield all

1 The English cases and principles of law are discussed in an admirable article on "Liability for acts of public servants", by W. Harrison Moore in 23 Law Quar. Rev. (1907), 12-27. See also article by same author, Misfeasance and non-feasance in the liability of public authorities, 30 Law Quar. Rev. (1914), 276-291, 415-432; Bonnard, op. cit., 54 et seq. See particularly the following cases: Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93; Gilbert v. Corporation of Trinity House (1886), 17 Q. B. D. 795; Gibraltar Sanitary Commissioners v. Orfila, 15 App. Ca. 400; Kinloch v. Sec'y of State for India (1880), 15 Ch. Div. 1; Bainbridge v. Postmaster-General (1906), 1 K. B. 178.

2 In re Ayers (1887), 123 U. S. 443; Fitts v. McGhee (1899), 172 U. S. 516; Hopkins v. Clemson College (1910), 221 U. S. 636. See the tests for distinguishing a suit against an officer from one against the state in Poindexter v. Greenhow (1884), 114 U. S. 270.

Osborn v. U. S. Bank (1824), 9 Wheat. 738 per Marshall, C. J.