THE FRENCH SYSTEM

In order to adjust the decisions of the Council of State to a satisfactory classification and theory of responsibility, the French jurists, who have devoted more attention to this subject than those of any other country, have been impelled to draw fine distinctions among the various acts of administration. These distinctions of the French law have greatly influenced the Latin countries of Europe and of America. Besides, in France, the individual enjoys a higher degree of protection against illegal, improper, imprudent or merely injurious acts of the administration than in any other country. For these reasons the French system merits special attention and will be discussed first.

§ 54. Different Classes of Administrative Acts. Recourse of Individual and State Responsibility.

One large class of administrative acts that may violate private rights are acts of police, or, as they are sometimes called, acts of authority, or the exercise of the police power in the general interest by ordinance or administrative decree. The distinction between acts of government and acts of police is often vague; the former, it can only be said, are usually political in character, whereas the latter are not. These acts in exercise of the police power if illegal or in excess of jurisdiction give rise to an action for annulment as in excess of powers or ultra vires before the Council of State, but in theory at least the state cannot be held liable in damages. In recent years, the theory has in several cases been abandoned, the state having been held pecuniarily liable to individuals for the defective operation, even without fault, of its police service. The Council of State has decided that there is an excess of power in case of (1) incompetence, when the administrative authority encroaches upon the competence of some other authority; (2) defect of form, when the formalities required by law are not followed by the administrative authority; (3) violation of substantive law; and (4) misuse or détournement of power, when an administrative authority even though acting within its competence and following the necessary formalities, uses its dis

cretionary power for purposes other than those for which the power was granted.1

Where acts of police violate previously concluded contracts between the state and an individual, e. g., a permit for a bridge near to another, to the builder of which a monopoly had been granted, or increase materially the burdens of the contractor, an action for annulment or for damages has on several occasions been held to lie.2 Moreover, where acts of police are merely disguised acts of gestion, e. g., where they add to the financial resources of the state, an action lies against the state, as it does where by statute a right of action is granted.

The other large class of administrative acts are acts in administration of the public service and are called by certain authors "acts of public gestion," as contrasted with and yet as related to "acts of private gestion" or the administration or management of the private domain and property of the state. For unlawful acts of gestion, the state may be held responsible in damages by means of the administrative litigation (contentieux administratif) before the Council of State, if an act of public gestion, or before the ordinary courts, if of private gestion. The distinction between acts of authority and acts 1 Goodnow, op. cit. II, 230 citing Aucoc, Conférences sur l'administration, I, 467. See also Wodtke, Fritz, Des recours pour excès de pouvoir, Tübingen, 1912; Dareste, P., Les voies de recours contre les actes de la puissance publique, Paris, 1914. We cannot enter into a detailed study of the four kinds of recourse against administrative acts: (1) full jurisdiction, which has the force of a judgment and may reform or amend the act; (2) annulment, which can only cancel it; (3) interpretation; (4) repression, which is equivalent to an injunction or prohibition. See Alcindor, L., Des differentes espèces de nullités des actes administratifs, Paris, 1912. See also H. Berthelemy, De l'exercise de la souveraineté par l'autorité administrative, 21 Rev. Dr. Pub. (1904), 209–227; L. Duguit in 29 Pol. Sc. Quar. (1914), 385, 393 et seq.

Ripert's article supra. See also section Situations contractuelles in works cited on Responsabilité de l'Etat.

'Hauriou, Précis, 6th ed. 410; Bigot d'Engente, A., De la responsabilité pécuniaire de l'Etat en matière d'actes de puissance publique, Paris, 1907, p. 4.

'Laferrière, op. cit., II, 187, 191. The matter of appropriate jurisdiction is among the most important questions in French administrative law. The administrative courts have an enumerated, but exceedingly extensive jurisdiction. Laferrière, I, 674 et seq.; Brémond, J., Traité de la compétence administrative, Paris, 1894; De la compétence dans les actions en responsabilité contre l'Etat by J. Perrinjaquet, Rev. Gen. du Dr., 1909, 112-126; 218-231. See also Goodnow, op. cit., II, 226 et seq., and L. Duguit in 29 Pol. Sc. Quar. (1914), 385, 401 showing the tendency to give the administrative courts jurisdiction of all suits against the state.

of gestion is vague and uncertain, and has been worked out inductively from the decisions of the Council of State holding the state immune from or subject to responsibility for particular administrative acts.1

Among acts of private gestion are included the exercise of the state's functions as a property owner, as the entrepreneur of an industry, such as the tobacco and match industry in France and Italy and the porcelain industry in Prussia, or in the operation of certain public utilities, such as state-owned railroads in most of the countries of Europe. In these matters, either by legislation or judicial decision, the state in France as elsewhere is subject to the principles of private law.

The liability for acts of public gestion or operation of public works is determined according to principles other than those governing private legal relations. In the celebrated Blanco decision which determined the jurisdiction of the French Council of State in suits against the state arising out of the administration of the public service, it was held that the responsibility of the state for injuries caused to individuals by acts of persons whom it employs in the public service cannot be governed by the principles established by the civil code for the relations of individual to individual; that this responsibility is neither absolute nor general; and that it has special rules which vary according to the needs of the service and the necessity of reconciling the rights of the state with private rights.2 From this decision the equitable nature of the decisions of the Council of State will become apparent, each defective act of administration being judged on its merits.

Some of the services in which the state has been held responsible on the theory that there has been a defective operation of an act of public gestion or service have been torts of treasury officers on the verifi

1 Grivellé, De la distinction des actes d'autorité et des actes de gestion, Paris, 1901; Hauriou, La gestion administrative, Paris, 1899; Le Roux, op. cit., 102. Duguit in 29 Pol. Sc. Quar., 402-403 minimizes the distinction.

2 Tribunal of Conflicts, 8 Feb. 1873, Dalloz, 73, 3. 20; Sirey, 73. 2. 153. The Council of State may pass likewise upon the liability to individuals of departments, communes, etc., according to the Feutry decision in 1908. Duguit in 29 Pol. Sc. Quar., 401.

cation of bonds, injuries caused to a private display at a state exposition, damages caused by soldiers or by army horses in actual commanded services, i. e., under orders of an officer, accidents caused to workmen in government arsenals, injuries to private property in target practice, loss of documents confided to public authorities, damages by collision between public and private vessels, damages caused to vessels by negligent acts of port officers, and other cases.1 By statute, damages are granted to individuals prejudiced by the defective operation or injurious results of various public services. So, for example, a limited compensation is granted for losses in the postal service; for erroneous tax and customs collections; for temporary occupation of property in carrying on public works or in erecting public buildings; for military requisitions; for property taken for defense in war times prior to actual belligerent engagements; and in many similar cases which may be assimilated to quasi-expropriation.2

In Germany, the activity of the fiskus, for which liability is admitted in principle, includes what the French designate as acts of gestion, both public and private. The German state is liable as a fiskus in its character as the owner of real property, of public works, domains, forests, roads, and provision magazines; when it emits loans or derives money from various sources of revenue notably commerce in tobacco or salt, or establishes a lottery, operates a railroad or a telegraph service (though here the officer rather than the state is made liable), or when through its officers it enters into contracts or other acts necessary to the administration or development of these various undertakings. In Germany, Austria and Switzerland the private law of obligations, including contractual and non-contractual liability,

1 Teissier, op. cit., 153 et seq.; Michoud in 4 Rev. Dr. Pub. (1895), 6; Le Roux, op. cit., 102; Sourdat, A., Traité général de la responsabilité, 6th ed., Paris, 1911, p. 393 et seq.; Roger, L., De la responsabilité civile de l'Etat, Paris, 1900, p. 48; Duguit, Léon, De la situation des particuliers à l'égard des services publics, 24 Rev. Dr. Pub. (1907), 411-439.

2 The Act of May 3, 1841 governing expropriation for public use (art. 48) has been amended by art. 2 of the law of April 21, 1914, confining the compensation to the actual and certain damages caused by the eviction. A discussion of the liability of France for injuries inflicted in war operations is contained in Vaulx, H. de, La responsabilité de l'état français à raison des dommages causés par les faits de guerre, Verdun, 1913.

is applied to the state to a much greater extent than in France, although, as a matter of fact, while the French administrative courts firmly deny the applicability of the principles of the civil code, the doctrines of liability of private law are nevertheless generally applied.

§ 55. Respective Liability of State and Officer.

One of the most important consequences in France of the division between acts of private and public gestion concerns the respective liability of the state and the officer. In the former case, private gestion, the state is responsible for all the faults of its employees within the scope of their authority according to section 1384 of the civil code. In the latter case, gestion of the public service, on the contrary, the state is only liable for such defects in the service as are not due to the grave fault or personal malice of the administrative officer. In other words, the courts distinguish between a fault of the service and a personal fault. The first may be the result of an administrative act badly or imprudently executed, or of an order carelessly given or understood; the second consists of gross faults, torts or malfeasance in which the personal passions of the officer predominate over the defect in the service. For these personal acts, the officer alone is liable before the judicial tribunals, without any liability of the state; but the administrative courts, in order to prevent an individual recourse against an officer from bringing into question an act of administration, thereby infringing the time-honored principle of the freedom of the administration from interference by the courts, have reserved the right to determine by preliminary inquiry whether the wrongful act in question was an official administrative or a personal fault. In England and

1 Further details must be omitted. As to the French administrative jurisdiction see Goodnow, op. cit., II, 217 et seq., and as to the Tribunal of Conflicts, Goodnow, II, 257. See also Dicey, A. V., Law of the constitution, 7th ed., London, 1908, ch. XII, particularly p. 395. Some of the misconceptions of Dicey's view of the French system are pointed out in Edmund M. Parker's criticism of the 6th ed. in his article State and official liability, 19 Harv. L. R. (1905), 335–349 and of the 7th ed. in 3 Amer. Pol. Sc. Rev. (1909), 362–370. See also Laferrière, op. cit., II, 189. It is often exceedingly difficult to distinguish the excess of power (for which an appeal for annulment will lie) from the defect of service (for which an action lies against the state) and from the personal fault (for which an action lies against the officer). It seems that the action for annulment and against the officer for damages may be brought for