"The association is responsible for any damage which . . . a duly appointed agent may cause to a third person by an act giving rise to a claim for compensation, provided that such act was done in the execution of its or his official duties."

and section 89 provides that:

"The provisions of section 31 apply mutatis mutandis to the fiskus as well as to corporations, foundations and institutions under public law."

This responsibility of the fiskus as a subject of property and fiscal rights, involving the relation of agency between the state and the employee, must be founded on an act which would involve the liability of the agent himself and which is committed in the exercise of his functions and not merely on the occasion of their exercise. Before the Civil Code came into force in 1900, if the officer exceeded his powers or jurisdiction or omitted duties incumbent upon him, he was personally liable according to article 13 of the act of March 31, 1873, following in this respect the Prussian law of February 13, 1854. The officer's liability for wilful and negligent acts is now governed by section 839 of the Civil Code which provides:

"If an official wilfully 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. If only negligence is imputable to the official, he may be held liable only if the injured party is unable to obtain compensation elsewhere."

The liability of the state for administrative acts as a public power was left to the states of the Empire by article 77 of the introductory act of the Civil Code, which provides:

"The provisions of State laws remain unaffected which relate to the liability of the State, or of the communes and other communal unions (provincial, circuit, and district unions), for any damage caused by their officials in the exercise of the public authority entrusted to them; similarly the provisions of the State laws remain unaffected which exclude the right of an injured party to require compensation from the officer for such an injury, in so far as the State or the communal union is liable." In eleven German states the liability of the state for the acts of its officers is under this section admitted by legislation. In six states, Bavaria, Wurttemberg, Baden, Coburg-Gotha, Reuss (j. L.) and

since August 1, 1909, in Prussia, the state's liability is primary and exclusive, and in five others, Hesse, Weimar, Schwarzburg-Sondershausen, Reuss (ä. L.), and Alsace-Lorraine, the liability of the state is subsidiary. In Saxony, by customary law, the liability of the state is recognized. Mecklenburg and Anhalt with a few minor exceptions have denied all liability. In the other states the law varies greatly, but the principle of liability is denied.1 Except as admitted by specia! statute, there is no liability for lawful exercise of the public power.2

On May 22, 1910, an imperial statute, very similar to the Prussian act of 1909, on the liability of the state for the acts of its officers, was enacted. It relates to the liability of the Empire for the acts of imperial officers.3 Under the Prussian and imperial statutes, if the officer in the exercise of the public power intentionally or negligently violates his official duties toward a third person, the responsibility of the officer provided for in section 839 quoted above is cast upon the state. In other words, the state has substituted its own liability for

1 Haftung des Staates u. der Gemeinden für ihre Beamten, by Otto Gierke, Deutsche Juristen-Ztg. 1909, 18-28; Die Haftung des Staates aus rechtswidrigen Handlungen seiner Beamten, by A. Dock, 16 Archiv f. öff. Recht, 244–279, particularly 257 et seq.; Die Haftung des Staats für den durch seine Organe u. Beamten dritten zugefügten Schaden, by Karl v. Stengel, Hirth's Annalen des deut. Reichs, 1901, 481-508, 561-592; Klingelmüller, Die Haftung für die Vereinorgane nach § 31 B. G. B., Breslau, 1900 (Heft 3 of Leonhard's Studien); Hatschek, J., Die rechtliche Stellung des Fiskus im B. G. B., Berlin, 1899; Extract from 7 Verwaltungsarchiv, 424-480, particularly 436 et seq.; also Vo Fiskus in Stengel's und Fleischmann's Handwörterbuch, 2nd ed.; Otto Mayer, Deutsches Verwaltungsrecht, 1st ed., I, 47 et seq., II, 65 et seq.; Bonnard, Roger, De la responsabilité civile des personnes publiques et de leurs agents en Angleterre, aux Etats-Unis et en Allemagne, Paris, 1914, 209–229.

2 E. g., in case of expropriation the liability is admitted. Anschütz, G., Der Ersatzanspruch aus Vermögensbeschädigungen durch rechtmässige Handhabung der Staatsgewalt, Berlin, 1897. Extract from Verwaltungsarchiv.

'Die Haftung des Staates für Amtsdelikte bei Ausübung der öffentlichen Gewalt nach preussischem Rechte, by Robert Coester, 5 Jahrbuch d. öff. Rechts (1911), 285-331; Gutachten of Gierke in 28 Deutscher Juristentag, I, 102, of Herrnritt, ibid. II, 324 and of Wildhagen, ibid. III, 133; Salman, R., Haftung für Beamte in Preussen u. im Reich, Berlin, 1911; also in Jur. Wochenschrift, 1911, 78–80; Delius, Hans, Haftpflicht der Beamten, Berlin, 1909; Koerner, W., Die Beamten-Haftpflicht im Reiche u. in den Bundesstaaten, Berlin, 1911; Bonnard, R., op. cit., 209 et seq.

The laws of the German states modify § 839 by reason of the provisions of §§ 77, 78, and 218 of the Introductory Act to the B. G. B. Up to the act of 1910, the duty of the state to make compensation for unlawful acts of imperial officers (in the

that of the officer in favor of an injured individual. The liability of the state is primary and excludes that of the officer, the state merely reserving a subrogated right of recourse against the offending officer. Soldiers are included among the officers covered by the statute, but the responsibility of the state is excluded in case of officers who are remitted only to the collection of fees from private persons.

The civil courts have jurisdiction, with the proviso that the state may raise the jurisdictional conflict, in which case, in Prussia, the highest administrative court, the Oberverwaltungsgericht, must first decide whether there has been an excess of power or omission of duty on the part of the officer. In this respect the statute is similar to the French system of judicial-administrative control over administrative acts.1 The statute applies to the minor administrative subdivisions of the state. If the individual is injured, however, by a police ordinance the action can only be brought where, after an administrative appeal, the ordinance has been declared illegal or invalid. The acts do not repeal other statutes limiting state liability, e. g., in postal and telegraph matters, accident insurance, etc.

A provision of some importance for present purposes is that foreigners may claim only if they prove, by proclamation published in the Gesetzblatt, that by reciprocity, in treaty or legislation, their own country grants similar rights to aliens. According to the statutes of Bavaria, Wurttemberg, Baden, the Mecklenburgs, both Reusses, Anhalt, Schwarzburg-Sondershausen, Saxony, and Alsace-Lorraine aliens may be denied the right to compensation if they do not prove that their own state recognized a corresponding liability in favor of Germans. In Hesse and Saxe-Coburg reciprocity must be proved, and this applies to non-nationals of the state. Moreover, Baden, Reuss (j. L.)

exercise of the public power) was regulated only by § 12 of the Land Registry Act, which covered the acts of recording officers, and by the laws of 1898 and 1904 concerning the liability of the state for errors in the administration of the criminal law. See Borchard, State indemnity for errors of criminal justice, Sen. Doc. 974, 62nd Cong., 3rd sess.

1 1 A similar preliminary administrative decision is required in Bavaria, Baden, Hesse and Alsace-Lorraine. See Gravenhorst, G., Der sogenannte Konflikt bei gerichtlicher Verfolgung von Beamten (Abh. aus dem Staats-und Verwaltungsrecht, 15. Heft.), Breslau, 1908.

and Saxony require a primary liability from the foreign state. Bavaria and Wurttemberg are satisfied with a subsidiary liability.1

In accordance with section 839 of the Civil Code the liability of the state is excluded if the officer is only guilty of negligence and if the injured person may be compensated in other ways. The state is likewise relieved of responsibility if the injury is committed by a judge without a criminal penalty attaching; if the injured person has failed intentionally or negligently to avoid the injury by legal means; or if the officer under section 839 was not himself responsible for the act, but only an assistant.

The imperial statute contains a provision analogous to the peculiar Anglo-American doctrine of "act of state" (infra, p. 174) by providing that state liability is excluded for acts of officers in the foreign service in so far as the chancellor declares them to have had a political or international importance.

Both in France and in Germany communal officers are not always appointed by the commune or local administrative body, but by the state; nevertheless, the state is not responsible for officers who do not act directly in its behalf. If the officer was appointed in the service. of the commune, the latter is liable. The statute does not relate to minor public boards, such as school boards.

§ 61. Spain.

SYSTEMS OF OTHER EUROPEAN COUNTRIES

The Spanish system of judicial control over the administration resembles closely that of France. Since 1888 the administrative courts have had a very large control over administrative acts, and the Consejo de Estado sitting in committee of the whole acts as a Tribunal of Conflicts in case of jurisdictional doubts. Officers are liable for personal faults, as in France, and an administrative decision may be invoked to prevent the ordinary courts from assuming jurisdiction over an administrative act. The state is liable under the civil code for official torts and breaches of contract of its officers, but curiously only when the state acts tortiously through the agency of a special officer, and not when the act is committed by a regular competent official of the

1 Dock in 16 Archiv f. öff. Recht, 273.

state. If the act, however, is one which the state should by law perform or perform properly, any omission or negligent execution of the act will involve its responsibility, although this liability is avoided by proof that it has taken all precautions to prevent the injurious act. The state has a right of recourse against the wrongdoing officer. This system, both in requiring the agency of a special officer to render the state liable and the limitations upon state responsibility incurred through the act of a general officer, in conjunction with the necessity for preliminary administrative consent before an officer may be sued, weakens considerably the recourse of an individual against an injurious administrative act.1

The Act of April 5, 1904, on the civil responsibility of public officers, somewhat increased the remedies of the individual. It provides that public officers who in the discharge of their duties, by act or omission, violate any precept whose observance has been claimed from them in writing, shall be compelled to indemnify the person injured for the damage sustained. The superior hierarchy which expressly approves the act or omission, shall assume responsibility, exonerating the inferior officers. Even a minister may under this law be made responsible before a committee of the Senate.2

§ 62. Italy.

In Italy, in 1865, the French system of judicial control was abolished and one similar to that of Belgium instituted. In 1889, however, the French system was reëstablished, except that the judicial tribunals have a much greater jurisdiction than they have in either France or Spain. In fact, in this respect, it is more like the German system. Individuals in Italy have recourse against administrative decrees or measures for excess of power or violation of law, under the following limitations: (1) the recourse for excess of power will only be received by the courts if the administrative decree or measure attacked has been previously appealed to higher administrative officials and the appeal rejected; (2) when the administrative act concerns matters of recruit

1 Laferrière, op. cit., I, 27-36; Pascaud, op. cit., in 24 Rev. Gen. du Dr. (1900), 498– 499; Marvin, G., La juridiction contentieuse en Espagne. Rev. Dr. Pub., 1906, 650-661; and works of Caballero and González, supra.

2 Santamaria de Peredes, V, Curso de derecho administrativo, Madrid, 1911, p. 116.