§ 10. Governmental.

The laws which subject the state to suit are few even at the present time. The United States is now subject to suit in the Court of Claims; and various of the states make some provision for adjudication of claims against them. Wherever such a law exists the extent of the submission of the state is statutory in the first instance. But, as in all questions of statutes, the common law must be employed in the construction of such enactments. This is the more necessary as such statutes are often general in form. It is plain that by such a statute the state should not be held to have held itself out as liable for every act done by every officer in the course of administration.

That is a question of much importance in our subject; whether if the state fail in its duty to carry out the laws by default of its governmental agencies, it shall be held liable for this as a wrong done by it to its citizens. A test case is Jones v. United States, 1 Ct. of Cl. 383 (1863). In this case it appeared that the claimants had entered into a contract with the Commissioner of Indian affairs for the survey of the districts described in the various treaties made between the United States and Indian tribes. An astronomer was appointed under the

v. Goschen [1898] 1 Ch. 73; Bowman v. Farnell, 8 N. S. W. 223; Beers v. Arkansas, 20 How. 527; The Siren, 7 Wall. 152; McMeekin v. State, 9 Ark. 553; Clinton v. Bacon, 56 Conn. 517; Brown v. Finley, 3 MacA. 77; O'Neill v. Sewell, 85 Ga. 481; Lightner v. Steinagel, 33 III. 510; Weston v. Dane, 51 Me. 461; Dewey v. Garvey, 130 Mass. 86; Brooks v. Mangan, 86 Mich. 576; Lodor v. Baker, etc., Co., 39 N. J. Law, 49; Agent of Prison v. Rikemam, 1 Denio, 279; State v. Godwin, 123 N. C. 697; Maddox v. Kennedy, 2 Rich. Law, 102; Moore v. Tate, 87 Tenn. 744; Board of Public Works v. Gannt, 76 Va. 455.

provisions of that contract to fix the initial points of the survey. When the parties were in the field the United States government withdrew the troops that had been employed in holding the Indian country; and thereby the contractors were long delayed in proceeding with their commission. The claimants, therefore, now insist as a matter of law that the United States could not withdraw their police forces from the Indian territory without incurring a liability to the contractors to make them compensation.

The judgment of the Court of Claims was delivered by Mr. Justice NOTT: This position cannot be sustained. The two characters which the government possesses as a contractor and as a sovereign cannot thus be fused; nor can the United States while sued in the one character be made liable in damages for acts done in the other. If the removal of troops from a district liable to invasion will give the claimant damages for unforeseen expenses against a private individual, as in any ordinary case it will not, then it will when the United States are defendants, but not otherwise. This distinction between the public acts and the private contracts of the government not always strictly insisted on in the earlier days of this court, frequently misapprehended in public bodies, and constantly lost sight of by suitors who come before us, we now desire to make so broad and distinct that hereafter the two cannot be confounded; and we repeat as a principle applicable to all cases, that the United States as a contractor cannot be held liable directly or indirectly for the public acts of the United States as a sovereign.

All this is undoubted law; although the United States

Adm. Law-3.

may have submitted itself to suit by a general statute, the interpretation of that statute will not include a case like this where the government is sued as a government for a governmental act. The public acts of the sovereign are never to be conceived as done subject to private law; therefore, it will not be held possible that any private wrong is done thereby. Even when the gov ernment enters into contracts, it does not divest itself of its sovereign character; and the result often is that the administration acting in behalf of the state will interfere in the performance of a contract which the administration has entered into in some other capacity. Examples of this sort of thing may be found in many places and some of the cases put are hard indeed at first impression. But no harder than the necessity itself is upon which in last analysis the rule rests. The truth of the matter is that in administration there must be a possibility of unanswerable power; that in the meeting of emergencies which arise in the course of government there must be the right to break with every arrangement that has been entered into before and to do what the exigencies of the situation require.

Let

In administrative action the situation may fairly be expressed by saying that the state is the principal and the officer is the agent. If, then, upon that description the analogy of the law of private principal and private agent is taken, for wrongs done by the officer in the course of administration the state would be liable. some case be taken to test this, for example, Gibbons v. United States, 8 Wall. 269 (1868), a leading authority The wrong involved in that case at bottom was a false imprisonment with large consequential damages, al

though the petition, it is true, said nothing about any arrest, force, or duress. It was all an attempt under the assumption of an applied contract to make the government responsible for the unauthorized acts of its officers, those acts being in themselves torts.

Mr. Justice MILLER disposed of the case with his usual directness; he said: No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents. It does not undertake to guarantee to any person the fidelity of any of the officers whom it employs, since that would involve it in all its operations in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests: the language of the statutes which confer jurisdiction upon the court of claims excludes by the strongest implication demands. founded on torts. The general principle which we have already stated as applicable to all governments, forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizens though occurring while engaged in the discharge of official duties.

No proposition of administrative law is so undisputed as this, that the government is not liable for torts in the course of governmental action; and no rule of administrative law is so without exception as this. As a matter of theory it is impossible to conceive of the state as a private principal subject to the liabilities of the law of private agency; the truth is that this is another realm, this is a public principal, the law of public agency governs; and according to that public law it is as im possible for the state to authorize wrong-doing, as it is

inconceivable that the state should do wrong itself. But more than this, as a matter of policy the rule has every support. No government could hold itself out to answer for its shortcomings; that they are always present, it is evitable. A government is an imperfect machine at the best. Liable in various ways governments may make themselves; never in this. As this chapter goes on, this at least must be more evident with each case that is added: that no government could hold itself liable for all the wrongs that may arise in the course of administration, and long endure. Much remains to be explained in working out this principle; but this is the rule, once for all.7

§ 11. Administrative.

The chief obligation resting upon the administration in any government, great or small, is to see that the laws are faithfully executed. But suppose that the laws are not enforced, and because of this failure in adminis tration some person suffers a special damage; is this a case for suit against the governmental body, or is it not? A dramatic case upon this special issue is Levy v. Mayor, 1 Sandford, 465 (1848). This was an action against the Mayor, Aldermen, and Commonalty of the City of New York for damages for the death of the plain

7 GOVERNMENTAL.-Russell v. Devon, 2 T. R. 667; Lee v. Munroe, 7 Cranch 366; Gibbons v. United States, 8 Wall. 269; Brown v. United States, 6 Ct. of Cl. 171; Jones v. United States, 1 Ct. of Cl. 383; Sherbourne v. Yuba Co., 21 Cal. 113; Stillman v. Isham, 11 Conn. 124; Marshall Co. Sup'rs v. Cook, 38 Ill. 44; McCaslin v. State, 99 Ind. 428; Fries v. Porch, 49 Ia. 351; Weston v. Dane, 51 Me. 461; Williams v. Adams, 3 Allen 171; Detroit v. Blackeby, 21 Mich. 84; Sooy v. State, 39 N. J. L. 135; Adams v. Wiscasset Bank, 1 Me. 361; Brown's Adm'r v. Guyandotte, 34 W. Va. 299.