the United States, personal liability of officers is much greater, for not merely the malicious exercise or abuse of power, but all excess of authority, use of excessive force, invasion of private right by mistake of his authority or of the law or in the existence of certain facts upon which his action depends, or even, in this country, an act under ap parently lawful authority but resting upon an unconstitutional statute— all these are considered personal acts of the officer which render him liable.1

A principle which long prevailed in French law, and has its counterpart in the law of most of the continental countries, provided that the officer cannot be sued without the preliminary consent or authorization of the higher administrative courts. This was an inheritance from the Roman law, and was intended not merely to prevent invasions of the administrative competence by the judicial tribunals, but also to protect the officer from unjust suits. This preliminary administrative decision was provided for by art. 75 of the Constitution of the year VIII, but it has been repealed in France by the decree of Sept. 19, 1870, which instead penalizes the institution of any vexatious or unjustified suit against an officer.2

§ 56. Limitations on State Liability for Administrative Acts.

The distinction between acts of police and acts of gestion of the public service has, by recent decisions of the German and French administrative courts, become vague, partly because cities have been held to a considerable responsibility for the maladministration of police functions and partly because certain acts of police formerly involving an immunity from responsibility have lately been held to give rise to a right of action.3

the same act. See Laferrière, I, 646. See an interesting thesis by Jean Depaule, Etude historique sur la responsabilité des fontionnaires publics, Carcassonne, 1902, especially pp. 107, 189.

1 Ernst Freund in article Private claims against the state, 8 Pol. Sc. Quar. (1893), 646. The tendency now is to relieve the officer from pecuniary liability for acting under a statute later held unconstitutional. As to the distinction, in English law, between misfeasance and non-feasance in the liability of public authorities, see W. Harrison Moore in 30 Law Quar. Rev. (1914), 276–291; 415–432.

* Goodnow, op. cit., II, 171 et seq.; Laferrière, op. cit., I, ch. VII, 637 et seq. The decisions of the Council of State since 1903, which indicate the new trend

There is no longer any safe criterion for establishing the nonresponsibility arising out of acts of police. While practically every administrative act may give rise to the responsibility of the state, there are nevertheless numerous limitations on any potential liability. First, acts which are non-contractual and regular in form can give rise neither to an action for annulment nor indemnity, in the absence of statute. Similarly, those which may be judicially corrected by annulment for excess or wrongful use of power or illegality or irregularity give rise merely to administrative appeal. General administrative acts give rise to an action for indemnity only when they are directed against particular individuals and then only when the illegality cannot be cured by an action for annulment and when the illegal execution of the act has violated the legal right of the individual.1 Again, the fault which would render the state liable must be strictly a defect in the service and not be due to a personal fault of the officer. Similarly, the state is relieved from liability by force majeure, or where the injury is caused by the negligence of the victim, or by a third person, or where the state, as is frequently the case, exonerates itself by express legislative provision, e. g., for the destruction of infected animals, for quarantine, etc.2 In general, the lawful operation of a public service, even though it causes injury, renders the state immune from responsibility except where especially undertaken by statute. Moreover, the damage must be direct and not remote; it must be material; it must be certain and not merely probable; and it must be present and actual and not merely future.3

§ 57. Liability of Municipalities.

The theory of responsibility in the continental countries is practically the same in the case of all governmental bodies, the state, city, commune or district. It is based upon the theory of the juristic person. In France, some slight differences are to be noted in the responsibility of the law are presented chronologically by Sourdois, op. cit., 50 et seq. Teissier, as one of the judges of the Council of State, has had an important influence in shaping the law. See also Duguit in 29 Pol. Sc. Quar., 402-403.

1 Teissier, op. cit., ch. III, § 2.

2 Ibid., ch. III, § 3.

3 Ibid., ch. IV.

of the state and of the commune. While admitting the distinction between acts of police and acts of gestion, the commune is in far greater degree subject to private law than the state. For example, acts of public gestion are, like those of private gestion, subject to private law rules. Again, the commune is not, like the state, relieved from liability because of the personal fault of an officer, but incurs a subsidiary liability. In Anglo-American law, the municipality is subject to rules quite different from those governing the state and other governmental bodies, inasmuch as it is liable for corporate acts, but not for governmental acts (in close analogy to the European system), whereas the state on principle escapes responsibility for all acts and has admitted liability for little more than contractual obligations. The decentralized system of administration in Anglo-American law, by which local bodies may be freely sued, combined with a theoretical plenitude of liability on the part of officers may in some degree explain the non-liability of the state, whereas the centralized system of European administration demands a greater centralized liability. Communes in France, are, like the state, liable for all direct and personal damages occurring in the execution of public works, whether due to fault or not, a rule differing widely from the Anglo-American practice.

The provision of the French law of 10 Vendemiaire an IV, incorporated with modifications in articles 106 to 109 of the law of April 5, 1884, according to which communes are responsible for injuries to the person or property of private individuals due to mob violence, has been adopted in the law of many of the civilized countries. It prevails in many of the states of Germany, in Austria, in Belgium and in several states of the United States. In France, the commune is relieved from liability if it can prove that all possible precautions were taken to prevent the assembling of the mob and to make its author known, or when the municipality had no local police or armed force.2

Peeters, Traité général de la responsabilité des communes, Paris, 1888; Sourdat, op. cit., 6th ed. II, 440-452; Michoud, L., De la responsabilité des communes à raison des fautes de leurs agents, 7 Rev. Dr. Pub. (1897), 41–84; Valerius, A., Organisation, attribution et responsabilité des communes, Paris, 1912, v. 3.

*Sourdat, op. cit., II, 453-479; Degroote, Henri, De la responsabilité de l'Etat et des communes à raison des dommages occasionnés par les emeutes, Paris, 1906; Poissonier, Paul, De la responsabilité le l'Etat et des communes à raison des dom

A recent law of April 16, 1914 amends articles 106-109 of the law of 1884 by making the state share responsibility with the commune, the proportion depending upon the degree of fault of the officers of the state. The theory of fault is superimposed on the theory of risk in the incidence of liability. The law of 1884, however, is still applicable to the city of Paris.1

$58. Resumé.

To summarize the French system: Administrative acts are divided into acts of police and acts of gestion. Acts of police if illegal or in excess of jurisdiction may be annulled for excess of powers, but in theory, at least, no action lies against the state for damages. But if in violation of contract, the state is liable. Acts of gestion are either private or public. The former involve the liability of the state as a private person. The latter, public gestion, embrace acts in administration of the public service. The state is usually held responsible for defective and injurious acts of this kind, unless the fault of the administrative officer is so purely personal to himself and not incidental to the public service that the state is relieved from and the officer alone charged with liability. Principles of public rather than private law are applied to determine state liability. The recent tendency is to narrow the sphere of acts of police by widening the scope of acts of public gestion, and consequently to enlarge the responsibility of the state.

THE GERMAN SYSTEM

§ 59. Judicial Control over Acts of Administration.

The German administrative system in the matter of judicial control over the acts of the administration in protection of private rights is very similar to the French. The administration acting as a public power is practically free from judicial control except in so far as liability of the state for wrongful acts of its officers has been assumed by the imperial act of 1910 and certain statutes in the states of the Empire. In addition, in a few cases the law has given the ordinary courts mages occasionés par les emeutes, Paris, 1912; Beaudouin, M., De la responsabilité des communes et de l'Etat en cas de troubles ou d'emeutes, Paris, 1912.

131 Rev. Dr. Pub. (1914), 445-448.

a limited control over certain acts of the administration-a right of appeal from decisions of inferior boards, such as those of the police authorities in certain cases, allegations of unjust arrest, disputed amounts of indemnity in cases of eminent domain, disputed assessments of taxes and protests against unlawful acts of police authorities. While the control of the ordinary courts is somewhat larger than in France, still by far the greater share of judicial control over acts of the administration is given in the larger states to the administrative courts. Decisions of the ministers, however, e. g., in Prussia, are not generally subjected to any administrative jurisdiction. The appeal for excess of power or ultra vires is unknown to the Prussian system. There is no administrative appeal against general acts of administration or ordinances. Only a special administrative act is subject to such appeal, although, as in Belgium, Denmark and other countries, the question of the validity of the ordinance may be considered collaterally and the enforcement of rights under it refused. Only such special acts as tend to violate private rights may be appealed from, provided a statute grants the right of appeal. The necessity for statutory provision is, however, dispensed with in the case of acts in exercise of the police power. This appeal has a suspensive effect on the administrative act, similar to the American remedy of injunction.1

§ 60. Pecuniary Liability of the State.

In the matter of pecuniary liability for wrongful acts of officers, Germany adopts the well-known distinction between the activity of the state as a fiskus, the broad application of which has already been noted, and its activity as a public power. In the former case the liability of the state is one of private law by the application of articles 31 and 89 of the Civil Code, which relate to the liability of juristic persons. Section 31 reads:

V.

1 Goodnow, op. cit., II, 243 et seq.; Perlmann in 34 Zeschr. f. d. privat u. öff. Recht. 98; Sarwey, O. von, Das öffentliche Recht u. die Verwaltungsrechtspflege, Tübingen, 1880, 92, 401; Der Begriff des Rechtschutzes im öffentlichen Rechte by Karl F. Lemayer, 29 Ztschr. f. d. privat u. öff. Recht (1902), 1-228 particularly 80 et seq. Prof. Arndt in an article Haftung für polizeiliche Eingriffe, 40 Jur. Wochenschrift (Nov. 15, 1911), 921 criticizes the distinction between non-liability for police interference through a general ordinance, and liability for interference by special order.