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from the language of the statute under which he acts. His authority must be proved, where the allegations of the petition are traversed,? although a contractor may assume that an authorized discretion has been properly exercised. There is a presumption against the officer's incurring any personal liability on account of a public contract concluded by him."

The obligations of contractors have occasionally been increased or materially altered by a subsequent general statute. This has been held by the Court of Claims not to involve any liability on the part of the government, it being considered that the United States when sued as a business fiskus entering into contracts cannot be made liable for acts of legislation, enacted in its character as a sovereign:

“Whatever acts the government may do, be they legislative or executive, so long as they be public and general, can not be deemed to alter, modify, obstruct or violate the particular contracts into which it enters with private persons.” 5 This is in marked contrast to the rule prevailing in France, where liability of the state is incurred for such indirect violation of the terms of government contracts.


$ 71. Right to Sue Officer. The Method of Protecting Officer.

We have adverted at various places to the responsibility of officers for their torts. In many states, as has been observed, the officer is held personally responsible for his tort, e. g., in the United States and Great Britain, in Portugal, in Greece, in Zurich, in Brazil, in Argentine, and in other countries, the state itself being on principle immune from

1 Rives v. U. S., 28 Ct. Cl. 249.
a Calkins v. U. S., 1 Ct. Cl. 382.
* Thompson v. U. S., 9 Ct. Cl. 187.
* Hodgson v. Dexter, 1 Cranch, 345; Parks v. Ross, 11 Howard, 362.

6 Deming v. U. S., 1 Ct. Cl. (1865), 190; Jones and Brown v. U. S., 1 Ct. Cl. (1865), 384; Wilson v. U. S., 11 Ct. Cl. (1875), 513. See also supra, p. 128, note 3.

• The injury must, however, be direct and material, and not merely consequential and speculative. See article Des rapports entre les pouvoirs de police et les pouvoirs de gestion dans les situations contractuelles by Henri Ripert, 22 Rev. Dr. Pub. (1905), 1 et seq., also supra, p. 127.

liability. In these states no administrative consent to sue the officer is necessary, and in Belgium and Austria, it is no longer required.

In Spain, France, Germany, Italy and some of the cantons of Switzerland, the administrative system rests on the principle of the Roman law that the officer is not suable at the will of every person, but that he is responsible to the superior administrative body under whose authority he acts. These states have practically all borrowed the French system under article 75 of the constitution of the year VIII, which required that the Council of State give its consent before the officer could be sued. This operates not only as a protection to administrative officers but also insures the independence of the administration. In Germany, however, this preliminary question is decided by a body, judicial in character and independent of the administration. Where the officer is suable, the ordinary judicial courts generally have jurisdiction. Some system of limitation upon the right of suit still exists in the countries above mentioned. In France, instead of a preliminary administrative consent to suit, the plaintiff who brings a vexatious action against an officer is subject to penalty, which acts as a sufficient restriction upon unwarrantable actions. The administration in countries possessing the French system of administive courts may still raise the conflict if it believes that an act of administration will be called into question before the ordinary courts through the action against the officer.' In various countries of LatinAmerica responsibility is often thrown upon the officer in order to shield the state from liability. The frequent insolvency of the officer is the best evidence of the ineffective recourse of an injured individual against an administrative act in those countries.

Up to 1909 and 1910, when Prussia and the Empire assumed responsibility for the wrongful acts of officers, the liability of the officer

1 De la responsabilité des fonctionnaires publics, by Maurice Bellom, Rev. Pol. et Parl., 1903, 103, pp. 148–153; De la compétence des tribunaux judiciaires à l'égard des fonctionnaires de l'ordre administratif, by M. Massonié, 26 Rev. Gen. du Dr. (1902), 18-36; Depaule, J., op. cit., 49, 107, 143, 159; Quaranta, op. cit., in 16 Il Filangieri, 273 et seq.; Die Verwaltungsgerichtsbarkeit in Frankreich und der Conseil d'Etat, by W. Hagens, 17 Archiv f. öff. Recht (1902), 373-412, at 387; Geser, A., Zivilrechtliche Verantwortlichkeit der Beamten, Freiburg, 1899; Delius, Haftpflicht der Beamten, Berlin, 1909; Brand, A., Das Beamtenrecht (in Prussia), Berlin, 1914.

in Germany was perhaps greater than in other countries. In France, the liability of officers before the courts is both narrower and wider than in Anglo-American law-narrower, inasmuch as the ordinary courts are not allowed to decide the question of the jurisdiction of the administration, and wider, in that a purely personal act may render him liable in damages, whether done in the performance of a ministerial or discretionary duty.

In Anglo-American law, while in theory the liability of the officer is substituted for that of the state, in practice the officer is so well protected that the remedy is in many cases illusory. In England, a special act exists to protect public officers from suit, in addition to the general principles of the law which will be noticed presently. The Public Authorities Protection Act of 1893 (56 and 57 Vict., c. 61) protects public officers against claims which are ill-founded or stale, by providing for suit within six months. The act is intended to avoid unnecessary litigation.2

Among the most important limitations of Anglo-American law upon the civil liability of officers to individuals injured by their official acts, may be mentioned the following: judicial officers and those exercising judicial authority are immune from suit even for malice or corruption; the higher executive officers are equally immune from civil liability; inferior administrative boards or officers exercising discretionary authority can only be rendered civilly responsible for their acts if dishonesty or malice against the injured individual is proved. Again, officers owing a duty to the public at large and not to an individual in particular cannot usually be rendered civilly responsible for their wrongful acts injuring individuals, their responsibility being criminal or political only. Finally, ministerial officers acting under warrants from courts or—the tendency is—from superior administrative authorities having judicial powers are protected by warrants fair on their face and emanating from a body ostensibly having jurisdiction. While the act of an officer acting under an un

Goodnow, op. cit. II, 175.

· Chartres, John, The Public authorities protection act, 1893, London, 1912; 12 Encyclopedia of the laws of England, 2nd ed., 81; Bonnard, op. cit., 69.

• Chaster, A. W., The powers, duties and liabilities of executive officers, 5th ed., London, 1899, 150 et seq.; Mechem, op. cit., 8 656 et seq.; T. R. Powell in 24 Harvard constitutional statute may be enjoined, the modern tendency, contrary to the older doctrine, is to hold that such statute protects the officer against an action for damages. Public officers are not in general civilly liable to third persons for the acts of their official subordinates. 2

A peculiar doctrine of Anglo-American law—the "act of state" doctrine to which the Supreme Court has recently given definite sanction, serves to relieve officers of the government, under certain circumstances, from liability for injuries inflicted upon aliens in the course of their official duty. Burdick states the principle as follows:

"When an act, injurious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the British government, it becomes an act of the State, and the private right of action becomes merged in the international question which arises between the British government and that of the foreigner." ; These injuries are usually committed upon foreigners by naval or military officers, or by representatives of the government abroad, in dependencies or colonies. When the act has been adopted by the state as its own act, it covers the officer with the shield of immunity possessed by the state itself. The court has jurisdiction merely to establish the fact of the “act of state,” and in the event of an affirmative determination, the act and those responsible for it escape the jurisdiction of municipal courts. Where the victim is the subject of

L. R. 442. Liability for acts of public servants, by W. Harrison Moore, 23 Law Quar. Rev. (1907), 12–27. Liability of officers acting in a judicial capacity at the common law, by Arthur Biddle, 15 Amer. L. Rev. (1881), 427-448, 491-509; Liability of public officers to private actions for neglect of official duty, by T. M. Cooley, 3 Southern L. R. (1877), 531-552; Bonnard, op. cit., 97 et seq., 42 et seq.

It is to be noted that the state as well as the local corporation may and frequently does indemnify its officers for liability which they may incur in the discharge of their duties. Mechem, op. cit., § 879; Goodnow, op. cit., 160.

1 Mechem, op. cit., § 662 and cases cited. See also Hopkins v. Clemson College, 221 U. S. 636, 644; Ex parte Young, 209 U. S. 123.

2 Mechem, op. cit., $ 789 et seq. Exceptions noted in $ 790; Salmond, J. W., The law of torts, 3rd ed., London, 1912, p. 55.

Burdick, op. cit., 37. See also definition of James Stephen quoted in Moore, W. Harrison, Act of state in English law, London, 1906, p. 93; Pollock, F., The law of torts, 8th ed., London, 1908, p. 111; 1 Encyc. of the laws of England, 2nd ed., p. 142.

* The “Act of State” doctrine by H. T. Kingsbury, 4 A. J. I. L. (1910), a weak state, the international remedy, which remains open, is quite ineffectual.

The highest executive officer and the ministers of state are usually more fully protected from judicial control and civil liability than other officers. Over their jurisdiction, there is in most countries no judicial control, and over their personal acts, in most of the European countries generally and in Latin-America, such control depends upon the preliminary authorization of the legislature. In AngloAmerican law, the highest executive officers are practically free from judicial control. But inasmuch as they act generally through subordinates, who are responsible for their actions and are not protected by the fact that they have acted on instructions from superiors, this immunity from judicial control is not so absolute as it might seem.” In most countries, there is a large parliamentary and political responsibility, usually fixed in the Constitution, and a certain criminal responsibility.

§ 72. Foreign States in Municipal Courts.

Having discussed at some length the liability to suit of the state and its organs and instruments of administration in its national courts, we may for a moment turn to the question of the suability of the state before foreign courts. It is a general rule of international law that courts will not exercise jurisdiction over foreign states, unless the action concerns local real estate or unless the foreign state voluntarily submits to the jurisdiction. The physical presence of movable property of the foreign state within the territory does not confer 359–372. The leading cases in Great Britain have been: Buron v. Denman (1848), 2 Exch. 167; Luby v. Wodehouse, 17 Irish C. L. R. 618; Tandy v. Westmoreland, 27 State Trials, 1246, 1264; Poll v. Lord Advocate (1899), 1 Fraser, 823; Musgrave v. Chung Teeong Toy (1891), A. C. 272; in the United States, The Paquete Habana, 189 U. S. 453, 465; O'Reilly de Camara v. Brooke, 209 U. S. 45, 52 (see criticism in Kingsbury's article, 364 et seq.); Chuoco Tiaco v. Forbes, decided May 5, 1913 (228 U. S. 549). Justice Holmes decided all three cases. See also Wiggins v. U. S., 3 Ct. Cl. 412.

1 De la responsabilité civile des ministres, by A. Vacherot, 13 Rev. Pol. et Parl. 38, pp. 251-270; De la responsabilité pécuniaire des ministres, by Ch. Roussel, 7 Rev. Dr. Pub. (1897), 385–416; Petel, A., De la responsabilité du ministère public, Paris,

Goodnow, op. cit., II, 164–166.


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