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Books Received

COMMERCIAL LAW. By Frank H. Sommer, William F. Walsh, and Edwin D. Webb. (Modern Business Texts, vol. 24.) Alexander Hamilton Institute, New York, 1924. pp. xxii, 363.

FEDERAL APPELLATE JURISDICTION AND PROCEDURE. By Elijah N. Zoline. Second edition. Clark Boardman Co., Ltd., New York, 1924. pp. cvii, 939.

THE LAW GOVERNING THE SALES OF GOODS. By Samuel Williston. Second edition. 2 vols. Baker, Voorhis & Co., New York, 1924.

A SELECTION OF Cases on the Law of InsuranCE. By Edwin H. Woodruff. Second edition, revised and enlarged. Baker, Voorhis & Company, New York, 1924. pp. xix, 735.

TAXATION: THE PEOPLE'S BUSINESS. By Andrew W. Mellon. The MacMillan Co., New York, 1924. pp. 229.

TREATISE ON THE LAW GOVERNING INDICTMENTS. By Howard C. Joyce. Second edition, with forms. Matthew Bender & Co., Albany, New York, 1924. pp. ccxii, 1147.

Volume XII.


Number 6


Some Problems of Public Law


T is out of the question for us to review in detail the rules of Continental jurisprudence as regards the responsibility of State departments and officers. I should like, however, to notice a leading doctrine which held the field in most States of Western and Central Europe for many centuries, namely, the doctrine of the Fiscus-the civil personality of the State.

Right from Roman times Continental law has been moving on different lines from the English; the liability of the State for infringement of its duties is recognized as far as transactions of a civil nature are concerned, while, on the other hand, any complaint affecting governmental functions and interests is rigidly excluded from the interference of the ordinary law courts. The system may be described as the watertight compartment arrangement: the State appears in two distinct aspects-that of a civil corporation and that of a public authority. In this shape the doctrine could be admitted. by the most absolutistic government.

In one of the Imperial rescripts dealing with the subject in the Code of Justinian,1 Hadrian forbade the arbitrary increase of rents of lease-hold tenants farming plots on the fiscal estates: the procurators should conform to custom and fairness because by equitable treatment of the tenantry they would attract agriculturists, while oppressive and arbitrary rule would scatter them away. This is the keynote of the policy which lay at the basis of the fiscal institution: it is in the interest of the Crown that in its transactions with individuals it should not subject them to a law less favourable than that obtaining between private persons.

Many centuries later the enlightened despots of the XVIIIth century Europe practised the same principle.

1 Digest of Justinian, De jure fisci, XLIX, 14, 3, 6.

Let me remind you of the celebrated case of the Miller of Potsdam. His mill had been injured because King Frederick the Great of Prussia had ordered a pond to be made in the royal estate of Sans Souci and the water of a stream feeding the mill had been diverted towards that pond. When the aggrieved miller claimed compensation, the local court of Potsdam refused to give him satisfaction because the obnoxious works had been carried on for the benefit of the royal estate. Frederick II intervened personally, quashed the decision and administered a violent rebuke to the judges for failing to distinguish between the private affairs and the public dignity of the King.

The dividing line is not easy to trace, however, and modern German and French courts have found it necessary to admit that certain acts of public administration produce consequences of a civil nature and have, therefore, to be treated as if they were cases under private law. What is to happen, for instance, if a man-of-war damages a merchant vessel through some accident or error of navigation? A case in point occurred in a German port in 1899 (?). The court of first instance actually decided that unless adequate compensation for the loss to the owner of the merchantman were paid, the gunboat should be taken over by them and could, eventually, be sold. The High Court in Leipzig confirmed the decision as to compensation to be paid by the Admiralty, but explained that a vessel of war could not be treated as property at private law and could not be seized as a security.2

Another instructive case was tried before a Belgian court in 1902. A law had been passed authorizing the government to hold manoeuvres in order to exercise army units in marches and sham fights, as a preparation to actual warfare. In the course of such field manoeuvres the troops destroyed the crops and otherwise damaged private property in certain areas. Claims for compensation were refused by the court at the time on the ground that the instruction of the army was a matter of public utility which outweighed considerations derived from private rights and interests. However, Belgian judges have recently altered their point of view and are ready to admit. that the liability of public bodies to compensate for infringement of private rights has to be recognized in spite of the fact that in discharging the duty of compensating for wrongs the State has to assume economic burdens. On the whole, it has not been found

2 I Gierke, Deutsches Privatrecht, p. 469. 3 Arrêt du 15-20 Novembre, 1922.

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possible to carry out the watertight compartment theory to its ultimate conclusions. The interdependence of the private and the public aspects of the State is being realized more and more in Continental jurisprudence.

On the other hand it is impossible to maintain much longer the equity of a solution which interposes the political prerogative of the State as a shield to protect departments and institutions from liability for the consequences of their mistakes and of the mischievous acts of their agents. If these harmful consequences may arise from misuse of power, or from error, or from negligence, they have to be subjected to adequate scrutiny and ought to result in adequate compensation. In most cases it would fall to the State to provide such compensation.*

Significant lessons may be derived from a comparison between the English and the French methods in dealing with these duties. The English method may be characterized as administrative selfgovernment controlled by the courts. Originally the various functions of administration, regulation of local police, labour and wages, management of roads, and sanitary measures were mainly in the hands of justices of the peace, acting singly or in quarter sessions, while supervision as to legality was exercised by the Court of King's Bench, by orders to hear and determine (mandamus) or orders to bring up a case for examination as to due process of law (certiorari). In the period of democratic reform beginning in 1832 the most important functions of administration gradually passed into the hands of departmental bodies-the various boards, commissions and ministries. The relation of the supervisory courts to the administrative boards remained, however, substantially the same as before in respect of local and regional bodies- the right to order determination and the right to examine the legality of procedure as to competence, form and statutory requirements. The self-government latitude has been substantially transferred to these boards.

The French system does not consist in a superimposition of an upper judicial story on the lower administrative one, but in the separation between powers acting side by side-the administrative power culminating in the presidency of the republic, spreading its

4 Haurion, Précis de droit constitutionnel, p. 579:

In France, where a suit against a functionary fails the suit against an Administrative Department succeeds. It is often successful in cases in which an English judge could not give a decision against the Administrative Department, as the latter's responsibility is not admitted in principle.

ramifications to the prefects of departments and the mayors of communes, and including administrative courts of its own, and the judicial, rising from the courts of first instance for civil and criminal cases, and culminating in the central Court of Error, the Cour de Cassation. Legality of administrative action is to be maintained not by reference to ordinary courts, but by claims and complaints addressed to administrative councils, the Conseils de Préfecture and eventually the Conseil d'Etat. These supervisory bodies are characterized by a combination of legal and administrative attributions and their personnel consists of an approximately equal number of jurists specially trained in public law and of civil service men called off from actual administration.

One may say in a general way, that in England the line of separation between the administration and the judiciary runs horizontally from side to side, while in France it runs vertically from top to bottom.

The contrast is a striking one and it could not fail to produce marked effects in the jurisprudence and practice of the two systems. But I should like to utter a warning against a natural bent of Englishspeaking students to regard the French droit administratif as an expression of bureaucratic absolutism. Such a description might have been applied to it with some truth in the epoch of the Napoleonic Empire and of monarchial restoration, but it has ceased to apply under the sway of the third Republic.5

As a matter of fact, the jurisdiction of the Council of State since the eighties is characterized by a strict and jealous supervision of the work of administrative institutions and officers.

It may be said, on the whole, that for the last fifty years we have to deal in France, as well as in England, with systems under the rule of law, although this rule is understood and applied in different ways. Let us attend to the effects of this contrast. To begin with, we have already seen that in England officers are made personally responsible for misuse of authority, mistakes or negligence. In France it is the institution of the department which is primarily liable for the wrong exercise of authority by its agents. There are cases, of course, where the agent is personally responsible if his

5 Cf., Garner, Judicial Control of Administrative and Legislative Acts in France, 9 American Political Science Review, 637.

This transition from arbitrary government to administrative legality may be illustrated by a comparison between two cases-one of 1861, the other of 1880, both concerned with repressive measures against the Press. Cases of Duc d' Aumale and Dufeuille.

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