ing or customs, recourse is open only for incompetence and excess of power, and not for violation of law; and (3) no recourse is admitted against measures of the government acting as a political power. The discussions as to what is included under political power correspond largely to the French discussions concerning acts of government.1

The Italian law as to responsibility of the state for acts of officers follows closely the classic distinctions between acts jure imperii and acts jure gestionis. In the latter case alone is responsibility admitted, and then according to the rules of the private law, being in this respect more nearly analogous to the German than to the French system. This is perhaps due to the fact that the judicial tribunals are competent in actions against the state, although the administration may raise the conflict if it believes the act in question was done jure imperii. Officers are liable for gross faults, but preliminary consent of the Council of State must be obtained before an action can be brought against them for acts relating to their office. The ordinary rules of liability for fault have been modified by the courts with respect to officers. For example, they are not responsible for simple errors of law "unless they reveal a complete ignorance of the elementary rules of the profession"; nor for faults committed when it is absolutely impossible to conform to the law; nor for acts done in executing orders from a legitimate authority not having a character manifestly wrongful and illegal; nor, finally, for acts done in case of extreme urgency and for the public interest.2

1 Laferrière, I, 73, citing Bertolini, P., Delle garanzie della legalità in ordine alla funzione amministrativa, Rome, 1890, 209.

* Laferrière, I, 83-84, citing Bonasi, Della responsabilità penale e civile dei ministri et degli ufficiali pubblici, Bologna, 1874, pp. 330, 346, 349 and Giorgi, Teoria della obbligazione, Florence, 1882, vol. V, 284. See also Pascaud, op. cit., 24 Rev. Gen. du Dr. (1900), 500; Sarwey, op. cit., 202. Italy has an extensive literature on this special subject, second only to that of France. Among the more important contributions which have been examined are the following: Giliberti-Messina, A., Responsabilità civile dello stato e delle altre persone giuridiche per fatti ingiusti dei propri agenti, Palermo, 1909; Giaquinto, A., La responsabilità degli enti pubblici, v. II, teoria speciale, 2nd ed., S. Maria, 1914; La responsabilità della pubblica ammistrazione in relazione alle guirisdizioni ammistrative, by E. Presutti, 41 La Legge, 139-144, 208-216, 354-360, 389-396 and 42 La Legge, 6-7; Della responsabilità indiretta delle ammistrazione pubbliche, by L. Meucci, 21 Archiv. giur. 341-406; Alcune osservazioni sulla responsabilità dello stato per i danni cagionati dai pubblici

§ 62a. Austria-Hungary.

In Austria, up to 1867, there was no administrative court having the power to reform or annul decisions of administrative authorities within their jurisdiction, but in violation of the law or of the rights. of private parties. The diets and their committees in the affairs of the province, and the ministers in matters of the state, enjoyed most extended powers, entirely free from judicial control. But the law of December 20, 1867, which separated justice from the administration, provided that individuals injured by administrative decisions or measures might have recourse against the official or board before the High Court of Administrative Justice, which was brought into operation by the law of October 22, 1875. For a violation of political rights, the Supreme Court is competent. Recourse is usually had for annulment of the protested act, reformation being rare. The individual also must have exhausted his appeals to the highest administrative authorities. The Supreme Court acts as a tribunal of conflicts between the judicial and administrative competence.1

There is no provision of law in Austria which renders the state liable for the acts of its officers, except in a subsidiary way for the acts of judges (supra, p. 130, note 5). The constitutional law of December 21, 1867 did hold employees of the state responsible for the observance of the laws in their official acts, and made provision for a subsequent law defining the liability of the state. But this official responsibility seems to be limited to a disciplinary control, for inasmuch as no law has been passed carrying the constitutional provision into effect, the courts have been loath to hold the state responsible in damages for acts of its officers, and the civil liability of the officer is exceedingly limited. Numerous statutes, such as the patent act, expropriation ufficiali, by O. Scalvanti, 2 Riv. Dir. Pub. (1892), 149-173; La responsabilità dello stato per gli atti dei suoi funzionari, by A. Bonasi, 1 Riv. Ital. p. 1. sc. giur. (1886), 1-33, 177-190; Della responsabilità dello stato in Gabba's Questioni di diritto civile, Turin, 1885, p. 109. On the responsibility of officers see especially Mottola, Domenico, Trattato in diritto ammistrativo sulla responsabilità degli uffiziali di governo e pubblici funzionarii, Catanzaro, 1894; La responsabilità dei pubblici funzionarii, by G. Quaranta, 16 Il Filangieri, 273-297, 321-343, 418-443 (a good comparative study); and La responsabilità dei pubblici ufficiali, by S. Scolari, 25 Nuova Antologia, 475-490.

act, customs act, etc., provide for the liability of the state, usually in cases where the state is enriched at the expense of the individual.1 Projects for a law to render the state liable for the unlawful acts of its officers are now pending in the Austrian legislature.

In 1896 (Law XXVI) Hungary established an administrative court with jurisdiction over complaints of individuals injured through the acts or decisions of the administrative authorities. By Law XX of 1901 a detailed procedure was provided for. Unlawful administrative measures may be annulled or amended. There is a considerable civil liability for unlawful acts both on the part of the officer and of the political subdivision of the state for which he acts. Law VIII of 1871 with respect to judges and district attorneys, Law XXI of 1886 with respect to municipal officers, and Law XXII of 1886 with respect to communal officers all provide that these officials are civilly responsible for the damages which they cause unlawfully or by incompetence, intentionally or by gross negligence, by act or omission, in their official functions, to the state, municipality, community or to individuals, provided the damage could not have been prevented by an established legal method. The municipalities and the communes are subsidiarily liable in all cases in which the injured person is unable, by reason of the officer's financial incapacity, to obtain damages. The ordinary courts have jurisdiction. The official malfeasance of judges renders the state liable. The civil liability of royal officers is not precisely regulated by statute, but these officers are liable to the state, which may through administrative channels collect damages from the officer. The state alone is liable to private individuals, but it can be sued only in the special cases provided by statute, either before the administrative or the ordinary courts.2

1 Perlmann in 34 Ztschr. f. d. priv. u. öff. Recht, 109; 24 Arch. f. öff. Recht, 526; Pascaud, op. cit., 24 Rev. Gen. du Dr., 501; Randa, Die Schadenersatzpflicht nach österreichischem Recht, 3rd ed., Wien, 1914; Die angebliche Entschädigungsklage, by Dr. Karl v. Schönberger, 64 Allg. Öst. Gerichts-Ztg. (1913), 185-188, 196–200. Der Rechtsschutz der Einzelnen gegenüber den öffentlichen Organen in Oesterreich, by Carl v. Kissling, 2 Ztschr. f. Gesetzgebung (1876), 225-237. Law of July 12, 1872 in execution of art. 9 of the law of Dec. 21, 1867 on the judicial power, 2 Ann. de Lég. Etr. 353-359.

* Ferdinandy, Gejza v., Staats u. Verwaltungsrecht des Königreichs Ungarn (trans. by H. Schiller), Hannover, 1909, pp. 186, 191, 194; Markus, Desider, Ungarisches

63. Switzerland.

Switzerland, although attributing a wide jurisdiction to its law courts, nevertheless provides a judicial control over acts of the administration by means of administrative courts. The Federal Assembly decides jurisdictional conflicts. Within the administrative jurisdiction are included the following matters: the ordinary civil rights; liberty of conscience and worship; civil status; burial; liberty of trade and industry; coinage; weights and measures; patents; primary instruction; professional licenses and other matters. The Federal Council acts as an administrative court, with right of appeal to the Federal Assembly. The cantons have in general adopted the federal administrative system.1

The Confederation in its code of obligations provides for contractual and non-contractual liability for acts of officers representing the state as a fiskus. Like a private employer, however, the state is relieved from liability for wrongful acts, provided it shows that all precautions were taken to prevent the injurious act. For acts of public power, the law differs in the Confederation and in the cantons, the liability of the state being frequently subsidiary to that of the officer, and enforceable against it only on proof of an unsatisfied judgment against him. By the federal law of Dec. 9, 1850, officers are divided into classes. A direct liability of the state is possible only for acts of officers elected by the Assembly, and not of other officers (arts. 42-43). For many other officers, all responsibility, direct or subsidiary, is denied, although some cantons, as Solothurn, assume such responsibility. The civil liability of officers is also limited; in fact the Swiss law rests largely on the basis that the officer is responsible only to a superior administrative body. Even where civil liability is admitted, this body must first decide that there has been a sufficient private injury.2 A proposed federal law amending that of 1850 is now being discussed.

The systems of state liability prevailing in the cantons differ widely. Verwaltungsrecht, Tübingen, 1912. Laferrière's account (I, 64) is no longer ac

curate.

1 Laferrière, I, 66.

2 Die Revision des Bundesgesetzes über die Verantwortlichkeit der eidgenössischen Behörden u. Beamten von 9. Dez. 1850, by H. Kaufmann and Carl Ott, 31 Ztschr. f. schw. Recht (1912), 601-784.

Some, like Berne, admit liability for fault, suit being possible against state or officer; Solothurn admits only a subsidiary liability, as do some other cantons; in Fribourg, Schaffausen and Thurgau, the state may be sued if the superior administrative authority refuses to declare the officer personally responsible. In some cantons, as in Fribourg, gross fault is necessary before the state can be declared responsible, in exact contrast to the French system. In Vaud, by a law of November 29, 1904, the state and communes assume primary liability for the wrongful acts of officers, reserving a right of recourse against the offending officer.1

§ 64. Belgium and other Countries.

The administrative systems prevailing in Belgium, the Netherlands, Scandinavia and Greece constitute a different group from those just described. The Belgian system may be taken as the type. It is marked by the absence of administrative tribunals, the judicial courts being competent in litigation of all kinds. The separation of powers between the administration and the courts is maintained by prohibiting the courts from all interference with the administrative power. The only recourse of the individual against unlawful administrative acts for their annulment is before the active administration itself; the ordinary judicial courts are incompetent to annul an illegal act of police or of an administrative authority, although they may refuse to give it effect. The recourse for annulment on account of excess of power, so important a remedy in France, is as unknown to the Belgian law as to the German. The legality of administrative acts thus escapes judicial control, except in so far as their execution or application is demanded. The regular courts have jurisdiction of all actions for

1 Pascaud, 24 Rev. Gen. du Dr., 503-504; Ziegler, E., Die direkte oder subsidiäre Haftung des Staates und der Gemeinden für Verschen und Vergehen ihrer Beamten und Angestellten in 7 Ztschr. f. schw. Recht. (n. f. 1888), 481-562; Vaud, Law of Nov. 29, 1904, Ann. de Lég. Etr., 1904, 301; Geneva, Law of May 23, 1900, Ann. de Lég. Etr. 1900, 392. The liability of officers and state in Portugal and Russia is briefly outlined in Pascaud's article, pp. 498 and 501.

* Laferrière, I, 93. A recent work on the responsibility of the state in Egypt discusses in some detail the Belgian, Italian, and other systems. Aba El-Salam Zohny, La responsabilité de l'Etat égyptien à raison de l'exercice de la puissance publique, Paris, 1914, 2 v.