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few countries besides the United States, courts have the power to declare legislation unconstitutional,1 although there is no pecuniary liability of the state on account of the private damage resulting from the unconstitutional statute.

Legislative officers are universally immune from civil liability for their official acts. Their responsibility is usually political and for penal offenses they are amenable to the criminal courts.

It will be observed later that in the case of international claims for injuries to aliens arising out of acts of legislation, a government cannot always protect itself from liability by alleging that a certain statute or decree violating private rights was an act of legislation and of public power, which in municipal law rendered the state immune from responsibility.

§ 52. Judicial Acts.

The judicial functions of the state being in the highest sense of a sovereign character relieve the state on principle from all civil liability, regardless of the injury sustained by individuals from maladministration of justice. The rehabilitation of wrongly convicted persons is, however, provided for in most civilized states. Within recent years, in addition, practically all the more important countries of continental Europe (Germany, France, Norway, Denmark, Sweden, Austria-Hungary, Spain, Portugal, several cantons of Switzerland), and Mexico as well, have enacted statutes granting an action for indemnity against the state, under certain circumstances, for errors of criminal justice, i. e., for the erroneous detention, conviction and imprisonment of an individual. A bill to this effect has recently been in

Full judicial control over legislation appears to exist in Argentine, Greece, Norway and Roumania. In Australia, Canada and the South African Union it is more limited. In various countries, e. g., Portugal, Nicaragua, Honduras, Panama, Cuba, Haiti, Venezuela, Costa Rica, Paraguay and Bolivia the constitution expressly provides that the courts shall disregard unconstitutional laws, but in some of these countries, e. g., Haiti, the power is never exercised, and in others, e. g., Bolivia and Costa Rica, the legislature has power to construe the constitution.

2

The system differs somewhat from country to country. The details are worked out comparatively in Senate Doc. 974, 62nd Cong., 3rd sess., "State indemnity for errors of criminal justice," by Edwin M. Borchard.

troduced in Congress and in several states of the United States. In Wisconsin and California it has already become a law.1

The liability of judicial officers varies considerably in Anglo-American and in continental law. The overwhelming weight of authority in Anglo-American law is to the effect that the judge having jurisdiction of subject-matter and of parties, whether his jurisdiction be general or limited, is not civilly liable where he acts erroneously, illegally, or irregularly, nor is he liable even for a failure to exercise. due and ordinary care, nor where he acts from malicious or corrupt motives. Excess of jurisdiction must, however, be distinguished from absence of jurisdiction. Where the judge knowingly acts without jurisdiction, he forfeits his judicial immunity.2 The tendency is to assimilate judges of limited jurisdiction to those of higher courts in their immunity from civil suit, the only distinction being that in the case of superior judges their competence is presumed, whereas in the case of judges of limited jurisdiction, they must prove it.3 Quasijudicial officers or officers exercising discretionary power, are in general held immune from liability when they have acted within their jurisdiction honestly and without malice.4

In countries of the civil law the liability of judges is much greater. On principle the continental judge is liable for his tortious acts in excess or abuse of his power, and in Austria-Hungary the state is subsidiarily liable.5

1 Wisconsin, Chapter 189 of the laws of 1913, creating § 3203a of the Statutes; California, Act of May 12, 1913, Chap. 165 of the laws of 1913.

2 Mechem, F. R., Public offices and officers, Chicago, 1890, §§ 628, 629; Bradley v. Fisher, 13 Wall. 335, 351; Grove v. Van Duyn, 44 N. J. L. 654; Hughes v. McCoy, 11 Colo. 591; Throop, Public officers, New York, 1892, § 713; 23 Cyc. 568-569 and authorities there cited. By statute, it is in some states provided that a judge is liable in damages for the arbitrary refusal of a writ of habeas corpus. This exception to the general rule is rarely invoked.

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5 See, for example, Austria, art. 9 of the organic law of Dec. 21, 1867, and the law of July 12, 1872, on the judicial power and the right of action for torts by judicial officers in the exercise of their functions. Also, Spain, Ley de Enjuiciamiento Civil, 1881, art. 903 et seq.; Civil Code, §§ 203, 232; penal code, §§ 346-353. Section 505 of the French code of civil procedure provides that judges are liable to civil suit in the following cases: First, if there has been willful wrongdoing (dol), fraud (fraude),

EXECUTIVE AND ADMINISTRATIVE ACTS

§ 53. Judicial Control.

The executive power has two functions: first, to govern; second, to administer the law. In the sphere of government falls the operation of the public powers according to the constitution, especially intercourse with foreign nations. As an administrator, the state supervises the daily application of the laws in the relations between citizens and the administration and between the various organs of administration. For the first class, acts of government executed usually by the highest organs of the state, the legislature or the judiciary, it has been seen that the state is not responsible, except politically, but that in certain cases the legislature may decree compensation for special sacrifices imposed on individuals in the interests of the public. This has been done on numerous occasions in France by indemnifying the victims of war damages from the state treasury. In the case of administrative acts, a remedy for their illegal exercise by administrative officers is provided either by recourse to the courts or superior or extortion committed either in the proceedings or in the judgment; . . . Fourthly, for a denial of justice. On the French law, see Biderman, J., La responsabilité des magistrats envers les particuliers, Besançon, 1912. The German civil code, § 839, par. 1, provides: "If an officer willfully or negligently commits a breach of official duty incumbent upon him as toward a third party, he shall compensate the third party for any damage arising therefrom." Paragraph 2 provides that "if an officer commits a breach of his official duty in giving judgment in an action, he is not responsible for any damage arising therefrom, unless the breach of duty is punished with a public penalty to be enforced by criminal proceedings." This last clause applies to cases of willful perversion of justice under § 336 of the penal code and includes malicious or corrupt exercise of the judicial power. The commentaries of Planck and Staudinger explain the narrow limitations of par. 2 just quoted. It applies first to a final judgment only and does not excuse gross negligence, malice, or corruption. For all intermediate and interlocutory orders and decrees—as in negligently ordering an arrest or attachment, declining to receive evidence, failure to call a witness demanded by a defendant, a disregard of undisputed testimony-the judge is civilly liable and is not protected by the immunity granted in par. 2 of § 839. See Nöldeke, Die civilrechtliche Haftung des Richters nach dem B. G. B. in 42 Gruchot's Beiträge zur Erläuterung des deutschen Rechts (1898), 795, at pp. 808, 821-822; Delius, Haftpflicht der Beamten, Berlin, Guttentag, 1899, pp. 206 et seq. A brief comparative statement of French and English law as to civil liability of judges will be found in 27th Report, International Law Asso. (Paris session, 1912) 659–660.

administrative body for their annulment as in excess of power or ultra vires or for their amendment on account of illegality, irregularity or misapplication, as in France, or by the use of the extraordinary legal remedies (or appeal in the federal courts) if in violation of law or of private rights, as in the United States.

The criteria between acts of government and acts of administration have varied from time to time and only the decisions of the administrative courts have furnished a safe basis for determination. The criterion of an act of government, in France for example, has varied from the political nature of the act to its extrinsic form or purpose, and finally to its intrinsic nature, which last seems to have become the prevailing doctrine. By decisions of the French Council of State it has in a general way been determined that the following broad divisions of state activity embrace acts of government, for which there is no state responsibility: the relations of the head of the state with the legislature, international relations, acts of war and diplomatic relations, vital measures concerning the internal and external safety of the state, such as the proclamation of martial law or a state of siege, the exercise of the pardoning power, etc. These governmental acts, when constitutionally exercised, escape judicial control in all countries.2

When we come to the injuries caused by the executive power in the exercise of its administrative function, we enter a more difficult field. The state necessarily fulfills its various duties of administration through officers and inferior administrative bodies. What shall be the system of distribution of the losses entailed by a faulty or defective operation or exercise of the administrative function? In other words, to what extent does the individual injured, the offending 1 Teissier, op. cit., 129. Des actes de gouvernement by Brémond, 5 Rev. Dr. Pub. (1896), 23-75, at p. 29.

2 The tendency is to narrow the sphere of these highly privileged acts, and to enlarge the category of administrative acts, which are subject to judicial review. Fabre, J., Des actes de gouvernement, Montpellier, 1898; Michoud, L., Des actes de gouvernement in 1 Annales de l'enseignement superieur de Grenoble (1889), No. 2, p. 57; Le Courtois, M., Des actes de gouvernement, Paris, 1899. Duguit in his article "The French administrative courts," 29 Pol. Sc. Quar. (1914), 385, 402 minimizes the importance of the distinction between actes de gouvernement and actes de gestion.

officer, and the state bear the loss of such defective operation of the public service? 1

1

1 The theory of state responsibility, and its foundation in private or public law have engaged the attention of many of the most prominent jurists, who in turn have greatly influenced the decisions of continental courts. In contractual relations, there has been no dispute the principles of the civil law apply to individual and to state alike. But is the state responsible for tortious acts of officers? If so, why and according to what principles? These are more difficult questions. Modern codes and courts have decided the first question affirmatively—a juristic person may be liable for tort. But as the relation between state and officer is not one of agency or of private law, the state in France is not liable according to private but according to public law principles. In Germany private law is more generally applied to the state. The application of private law to wrongful acts of officers and defective acts of administration was supported by Gierke, Meucci, Laurent, Aubry and Rau and Demolombe, and with distinctions between acts of public power, to which it would not be applicable, and acts of gestion, to which it would be, it was upheld by Zachariae, Primker, Loening and Piloty, by Ziegler, by Bonasi and Giorgi, by Giron, and by Larombière and Michoud. See exact citations to the works of these jurists in article by Maurice Hauriou, Les actions en indemnité contre l'Etat pour prejudices causés dans l'administration publique, 6 Rev. Dr. Pub. (1896), 51–65.

The most widely accepted theories of public law responsibility have been: (a) The assumed guarantee by the state of the lawfulness of its official's acts and the compulsion upon the individual to obey the officer. This theory was originated in Germany by Pfeiffer and Zachariae and has the support of Michoud and other French jurists. Haftung des Staates aus rechtswidrigen Handlungen seiner Beamten by H. A. Zachariae. Ztschr. f. d. ges. Staatswissenschaft, 1863, 582-652. Loening, E., Die Haftung des Staates aus rechtswidrigen Handlungen seiner Beamten nach deutschem Privat- u. Staatsrecht. Frankfurt, 1879. Die Haftung des Staates für rechtswidrige Handlungen und Unterlassungen der Beamten, by R. Piloty, Hirth's Annalen des deutschen Reichs, 1888, 245-271, gives a full account of the theories, as does Michoud in his noteworthy article De la responsabilité de l'Etat à raison des fautes de ses agents, 3 Rev. Dr. Pub. (1895), 401-429; and 4 ibid. 1-31; 251-285. See also Marcq, René, La responsabilité de la puissance publique, Paris, 1911, p. 316 et seq.; and Sourdois, op. cit. (b) The theory of professional risk or social insurance, according to which the sacrifices and losses entailed by injurious acts of administration should be distributed among the community at large. This was until lately the theory of Hauriou, a leading French authority, and of Otto Mayer. The question of fault of the officer is immaterial in the application of this theory, Hauriou, article cited, and also in the 3rd ed. of his Précis, op. cit., 174 et seq. In the 4th and following editions, the theory is abandoned for the "fault" theory in acts of gestion, public and private (infra, p. 135); Mayer, Otto, op. cit., and article Die Entschädigungspflicht des Staates nach Billigkeitsrecht, Vortrag in Gehe- Stiftung, Dresden, 1904. (c) General equity, the theory of Brémond and Teissier (Brémond, op. cit., and Teissier, op. cit.) which is gaining support in the recent decisions of the French and German administrative courts. Each invasion of private rights and interests by the administration is judged upon its own merits in justice.

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