damages against the state acting as a fiskus, whether contractual or non-contractual. It is otherwise with acts of public power. If legal, or if affected only with defect in form or administrative irregularity, no action lies. But if its illegality results from the violation of individual rights, the state may be sued. The Belgian courts and authors seem to agree that for faults or personal negligence of its officers in the exercise of the public power the state is not responsible. Thus the courts have held that the state, province or commune is not civilly liable for the illegal acts of customs agents, for depredations committed by troops, or for accidents to vessels in ports or on canals as the result of bad service by state officers. Communes are liable for damages done by mob violence.

1

Administrative officers are not liable to any greater extent than judicial officers, i. e., only for willfully wrongful intent (dol), fraud, or gross negligence. Honest mistake relieves the officer of liability. No preliminary authorization is required in order to sue officers, as it is in France and most of the countries which have adopted the French system of administration.2

§ 65. Roumania.

Roumania, in 1866, abolished its Council of State and, as in Belgium, the courts were given an administrative jurisdiction-not, however, to annul administrative acts, for which the active administration was alone competent, but merely to refuse to give them effect if judged illegal. This is only one of many cases in which Roumania has drawn upon the Belgian system for its institutions of public law. By the 1 Laferrière, I, 95. The last decision is contrary to the French law and it seems even to the Dutch law. 14 Clunet, 245; 16 ibid. 742.

2 Laferrière, I, 96; Pascaud, 24 Rev. Gen. du Dr., 504-505. By way of exception, the Norwegian courts can pass on the legality of an administrative act. Bellom in 35 Rev. Pol. et Parl. (1903), 148 citing Ussing, I., Le contentieux administratif et la juridiction administrative (trans. by Dareste), Copenhagen, 1902, p. 310. Further, on the Belgian law, see Bourquin, Maurice, La protection des droits individuels contre les abus de pouvoir de l'autorité administrative en Belgique, Bruxelles, 1912, p. 92 et seq.; Marcq, René, La responsabilité de la puissance publique, Paris, 1911, pt. 1, ch. IV; Etudes sur la responsabilité des administrations publiques, by C. Beckers, 26 Rev. de l'Administration (1879), 137-168; 37 ibid. (1890), 92-123; De la responsabilité de l'état et des communes, by Edouard Remy, La Belgique jud., 1895, 1410

law of July 1, 1905, Roumania reëstablished an administrative court, by creating a new section of the Court of Cassation which was given power to pass upon acts of authority, to annul them, and in certain cases even, to compel the administration to reform them.1

§ 66. Comparison of Continental Systems.

Before discussing in detail the Anglo-American system of state responsibility for administrative acts resulting in private damage, we may briefly summarize the salient features of the continental systems of state and official liability. By practically universal rule the state in its character as a fiskus or contractor or in the exercise of acts of gestion is liable in contract and in tort for the acts of its officers. In some countries, as in Switzerland, the state is relieved by proof of all necessary precautions to avoid the injurious act. When the state acts as a public power the measure of liability varies greatly from state to state. For acts of police, only a limited liability is incurred at best— in France they may be annulled for excess of power or jurisdiction, but pecuniary damages are rarely awarded; all possibility of damages was until recent years even denied. In Germany, the police ordinance must be special and must be judicially declared illegal before an action lies. In Belgium if judged illegal the courts may decline to give it effect.

For private injuries resulting from acts of administration of the public service the rules of liability differ from country to country. If the administrative act is lawful, compensation for injuries requires a special statutory enactment. France and Italy have been held to a large measure of responsibility for illegal or defective operation of the public service, this being limited only by the gross personal fault of the officer, in which event liability is charged to the officer alone. In Germany, liability for the wrongful acts of officers has been assumed by the Empire and several of the more important states. The liability is denied if only negligence is chargeable to the officer, and the injured person might have found relief in other ways than by suit for damages. The state has a right of recourse against the officer. In Spain, only

1 Le contentieux des actes administratifs en Roumanie, by Paul Negulesco, 27 Rev. Dr. Pub. (1910), 667-681.

acts of special officers involve the responsibility of the state, but where the law imposes a definite duty upon the state it may be liable for its officer's misfeasance or non-feasance. The officer is liable for the omission of acts, performance of which is demanded of him in writing. In Austria liability is assumed by the central government only for wrongful acts of judicial officers, a constitutional provision for general liability for acts of administrative officers never having been carried into effect. In Hungary, as well as in Argentine,' local subdivisions of the government have assumed a large measure of responsibility for the wrongful acts of administrative officers, although, as in some of the cantons of Switzerland, liability is subsidiary to that of the officer and depends upon the production of an unsatisfied judgment against him. The central government, as in Austria, is liable for judicial misfeasance, and for acts of administrative officers, where provided for by statute. In Belgium, the freedom of the administration from judicial control, has also limited the liability of the state, except where admitted by special statute, to acts of private gestion. Officers, however, are liable for gross faults. Finally, the principles of liability on the continent extend with slight modifications to all political subdivisions of the state-communes, districts, departments, etc., in contradistinction to the Anglo-American principle which subjects municipal corporations to rules quite different from those governing the central government, state or federal.

ANGLO-AMERICAN SYSTEM

§ 67. Judicial Control over Acts of Administration.

In the United States and Great Britain the judicial control over administrative acts is exceedingly great, in direct contrast to the rule prevailing in France and in the other countries having a similar administrative system. This control is exercised in various ways: first, acts of officers done under color of office but not in accordance with law are justiciable in the ordinary courts. The officer either abusing his powers or acting without jurisdiction, may incur a civil or criminal liability, under limitations to be discussed hereafter. Again, the orders of administrative authorities, if contrary to law, may be enjoined, or 1 Lopez, L., Derecho adm. argentino, Buenos Aires, 1902, pp. 215 et seq.

if the authorities fail to carry out a duty to individuals which the law imposes, mandamus will issue. The violation of an administrative order, again, may involve a penalty. In the enforcement of the penalty before the courts, the latter will pass upon the legality of the administrative order.1 The courts will not interfere with the use of discretionary powers invested in administrative authorities by the law, but only with their abuse, e. g., failure to grant a hearing or notice, and similar violations of private right. The remedy before the harmful act has been committed is generally against the threatened act by petition for injunction, or if unfair or illegal, by request that it be reviewed and annulled or amended. After commission of the act, the remedy is an action for damages against the officer, within limitations to be noticed, or against the state or public corporation, in so far as suit is permitted.

§ 68. Suit for Pecuniary Damages-Liability of Municipal Corporations.

On principle, suits against the central government cannot be brought in England or the United States, without the consent of the government. This permission is in general limited to suits on contract, and excludes liability for the tortious acts of officers. One reason for this immunity lies partly in the fact that the decentralized system of administration throws a large share of the exercise of public powers upon political subdivisions of the state and local bodies and corporations, which are held to a considerable measure of liability, analogous in many respects to that of the state in continental Europe. In the United States, it is only in the case of municipal corporations that the distinction of governmental and private or corporate functions, as a criterion of liability, has been adopted. So, for example, American cities engaged in carrying on gas works, water works, the ownership and management of wharves and the towing of vessels for profit, have been held to respond in damages for the wrongful acts of their officers, agents, or servants, provided these wrongdoers acted within 1Goodnow, op. cit., II, 144, 190 et seq. The federal courts in the United States have a very limited administrative jurisdiction, the remedy being practically limited to appeal. Goodnow, II, 210. See also T. R. Powell, Administrative exercise of the police power, 24 Harvard L. R. (1911), 268-289, 333-346, 441-459, particularly 338, 441 et seq.

the scope of their apparent authority, or their misconduct was ratified by the municipality.1

On the other hand, a municipal corporation has been held not liable for the torts of its fire or police departments, nor for those of its board of health (except in special cases, by statute) or of education, nor for those of any other officers or agents in the discharge of functions which are primarily governmental and incumbent upon the state, but the performance of which it has delegated to the municipality. Neglect of officers in guarding prisoners, or in caring for jurymen, or in keeping jails or other public buildings or highways in repair will not subject the corporation to legal liability.2 Injuries to private property under the valid exercise of the police power give the individual owner no redress against city, state or officer. As a matter of fact, the line of distinction between governmental and corporate functions is often exceedingly vague. Tests which have been applied to determine the governmental character of the act of administration are: that the duty is enjoined upon the city by law; that the service is performed for the general public; and that the city, in its corporate capacity, receives no special benefit from the act.3

Municipal corporations are now by state statute compelled to assume liability for numerous acts inflicting damage upon private individuals which by common law involve no responsibility. Thus, damage to private property in the construction of public works, damage by the action of health officers, the destruction of property by mobs, among other matters, is compensated for by numerous municipal corporations.1

A distinction is made in the United States between municipal cor

1 Burdick, F. M., The law of torts, 2nd ed., Albany, 1908, p. 108; Goodnow, F. J., Municipal home rule, New York, 1906, ch. VII, VIII; Dillon, J. F., Commentaries on the law of municipal corporations, Boston, 1911, vol. IV, ch. 32, § 1610 et seq., Bonnard, op. cit., 136 et seq.

2 Burdick, op. cit., 42, 110; Powell, 24 Harvard L. R. 441. See the leading case of Hill v. Boston, 122 Mass. 344.

See the well-reasoned opinion in Evans v. City of Sheboygan (Wisconsin, 1913), 141 N. W. Rep. 265.

Dillon, op. cit., IV, §§ 1636-1637.