responsibilities forced upon private employers by workmen's compensation acts. It is quite conceivable that if negligence caused a boiler explosion in a government power plant, an employee hurt inside the building would have rights to compensation which he could enforce in court, while a passing pedestrian struck by flying débris might search vainly for a legal remedy."

Perhaps the principal point to be made concerns the state's own financial interest. A persistent claimant, barred from the courts, does not stop there. He goes to the legislature. That body is surpassing generous with other people's money. It is unrestrained by legal rules as to admissibility of evidence or amount of damages. It knows no statute of limitations. It applies no principle of res judicata. It is exceedingly unlikely to draw with any precision the line between satisfying a liability and making a gift.1 Judges may be pardoned an inward smile when they rebuke persons who have the temerity to sue states, telling them that such action insults the sovereign's dignity and that the proper procedure is meekly to beg the legislature for relief. Here, at least, meekness often pays large dividends.

It may seem inconsistent to urge both hardship to the citizen and expense to the state. Not necessarily. Political motives rule the legislature. It is not fitted to be a court of justice. Securing the passage of a bill is very different from pushing a case to judgment. Perfectly sound claims may well be lost in the legislature for lack of proper introduction or effective backing; entirely unsound ones, particularly if they appeal to sympathy, may be log-rolled through. The most meritorious cause of action does not, alas, invariably command the services of the ablest politicians. Public money is

"Judge Smith has ably demonstrated the general lopsided effect of workmen's compensation acts. 27 HARV. L. Rev. 235.

12 George M. Davie, "Suing the State," 18 AM. L. REV. 814; The "Supreme Court of Spoils," 112 OUTLOOK, 616 (March 15, 1916); and Charles Warren's vigorous "Massachusetts as a Philanthropic Robber," 12 HARV. L. REV. 316. In some states constitutional provisions forbid gifts of public money, and everywhere the principle that taxation must be for public purposes only is supposed to be enforced. But the watchdog of the treasury earns more buffets than blessings and finds it almost impossible to perform his duty with entire success. Courts properly dislike interfering with the legislature's appropriations and give them the benefit of every doubt. See the Opinions of the Justices in 175 Mass. 599, 57 N. E. 675 (1900); 186 Mass. 603, 72 N. E. 95 (1904); 190 Mass. 611, 77 N. E. 820 (1906); and 211 Mass. 608, 98. N. E. 338 (1912).

constantly squandered without doing justice. Nothing, perhaps, short of prohibiting the practice will keep plaintive gentlemen from appealing to tender-hearted legislators. But an open road to the courts robs these appeals of their plausibility.

After all, the proof of the pudding is the eating. It is significant that scarcely any modern state denies every semblance of legal remedy to the private claimant. The English petition of right serves well enough to enforce contracts and for the recovery of taxes or other property wrongfully withheld by the Crown. Nearly everywhere in the United States individuals can compel payment of government debts by proceedings of a judicial character. If taxes are illegally extorted, we whip the devil round the stump by suing the collector. Written constitutions protect us from uncompensated seizures of property. The case is not so clear when a tort involves personal injury or damage to property as distinguished from its expropriation. Still, remedies do exist.

If the government carries on industrial enterprises through the medium of legally distinct corporations or boards of trustees, these bodies may be sued for tort.13

When the government acts without intermediaries statutes frequently provide for proceedings directly against it. These statutes are of two classes. Those in the first class create or define particular rights and provide remedies for their enforcement. Thus at Panama, where all the realty and most of the personalty are public property, the United States solved the problem of sovereign's liability with a series of workmen's compensation acts. Now that the canal is occasionally open, those injured in person or property while using it have a statutory right of action.14

In substance Massachusetts was suable on tort claims arising from its management of the Troy and Greenfield Railroad and the

13 The leading English case is Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 686 (1864). See also W. Harrison Moore, "Liability for Acts of Public Servants," 23 L. QUART. REV. 12; "The Shield of the Crown," 35 CAN. L. T. 897; ROBERTSON, CIVIL PROCEEDINGS BY AND AGAINST THE CROWN.

The British colonies follow the same rule. Sweeney v. Board of Land & Works, 4 Vict. L. R. 440 (1878). So do our own states. Hutchinson v. Western, etc. R. Co., 6 Heisk. (Tenn.) 634 (1871). The stock of the Panama Railroad is held in trust for the United States. But it seems never to have been doubted that tort actions will lie against the corporation. Fitzpatrick v. Panama R. Co., 2 Canal Zone Sup. Ct. R. 1II (1913).

14 Panama Canal Act (Aug. 24, 1912), 37 U. S. STAT. AT LARGE, part 1, 560, 563.

Hoosac Tunnel.15 By statute New York has long been responsible for negligence in connection with its canals; and Ohio has a similar law.16

Canada gives legal remedies for injuries caused by negligence on public works.1 A like statute has been passed by West Australia.18 New Zealand makes the Crown pay for damage suffered in connection with certain public works from which revenue is derived.19 Such laws suggest the decisions of the French administrative courts respecting travaux publics.20

The second class of legislation does not deal at all with particular rights, but does give private claimants a general judicial remedy against the sovereign. Statutes of this kind are common in the British colonies and exist in at least nine of our States.21 From the lawyer's point of view they are extremely interesting. Removing the initial problem of remedy, they make the courts work out their own principles of right. The decisions under them are shaping the whole structure of governmental liability. It would be possible to

15 Amstein v. Gardner, 134 Mass. 4 (1883).

16 Reed v. State, 108 N. Y. 407 (1888), 15 N. E. 735; Sundstrom v. State, 213 N. Y. 68, 106 N. E. 924 (1914); In re Claims against the State, 8 Ohio L. R. 59, 68 (1910). 17 CAN. REV. STAT. (1906), c. 140, § 20; 9-10 EDW. VII (1910), c. 19.

18 City of York Co. v. The Crown, 4 W. Austr. R. 63 (1902).

19 The Queen v. Williams, L. R. 9 A. C. 418, 433 (1884) (harbor snag); Hill v. The King, 33 N. Z. L. R. 313 (1913); Gibbons v. The King, id., 527 (1913) (railways); The King v. Shand, 23 N. Z. L. R. 297, 306 (1903) (gravel pit from which ballast was taken for railway).

20 2 E. LAFERRIÈRE, TRAITÉ DE LA JURIDICTION ADMINISTRATIVE, I ed., 176; the following cases before the Conseil d'État are typical: 12 July, 1855, Bourdet, D. P., 1856-3-5; 6 May, 1881, Tysack, D. P., 1882-3-106; 21 July, 1882, Turnbull, D. P., 1884-3-29; 27 June, 1890, Chedru, D. P., 1892-3-12 (injuries to ships in ports or docks); 14 Jan., 1910, Comp. d'Assurances l'Urbaine, D. P., 1911-3-124 (fire caused by fall of telephone wire); 17 May, 1878, Bouveret, D. P., 1878-3-82 (damage from state dynamite factory); 28 Feb., 22 May, 1908, D. P., 1911–5–24 (fire set by steam roller).

21 Arizona: 1913 CODE CIV. PROCEDURE, part 13, §§ 1791 et seq. California: HENNING'S GEN. Laws (1914), Act 4824, p. 1773. Illinois: 2 ANNOTATED STAT. (Jones & Addington), parts 3417, 3419. Massachusetts: REV. LAWS, C. 201, § 1. New York: CODE CIV. PROCEDURE, § 264. It has been thought, particularly outside New York, that this section creates liabilities as well as a remedy. The wording of the statute and the reasoning of the decisions under it do not sustain this idea. North Carolina: I PELL'S REVISAL (1908), § 1537. South Dakota: 2 COMP. LAWS (1913), CODE CIV. PROCEDURE, §§ 25-28, p. 320. Virginia: CODE (Pollard, 1904), § 765; construed in Higginbotham's Ex'x. v. Commonwealth, 25 Gratt. 627, 637 (1874), and AttorneyGeneral v. Turpin, 3 Hen. & M. 548, 557 (1809). Washington: PIERCE'S WAash. CODE (1912), tit. 453, § 9.

separate the cases into those which do and those which do not involve responsibility for an agent's acts. But the value of this distinction is not apparent. With the extension of public activities has come a decided modification of the older theory that governments are never liable for the misdoings of their servants.22

Even where an unqualified statutory remedy has been granted, the law remains clear for non-liability up to a certain point. Language used in different jurisdictions varies, but the underlying idea seems constant. No sovereign or governmental act, however illperformed or damaging, is a state tort.23 The tendency in the United States at least is to make this rule cover a multitude of sins. Of course it extends to acts of the legislature and of the judiciary, police activities, and acts of war. Miscellaneous instances of its application are found in the construction and maintenance of prisons, hospitals, and educational institutions; 24 care of public roads and parks; 25 protection and propagation

22 STORY, AGENCY, § 319, is usually cited to support this theory. For the modern doctrine see BISHOP, NON-CONTRACT LAW, § 749.

23 Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N. E. 854 (1890); Enever v. The King, 3 Commonwealth L. R. (Aus.) 969 (1906); Baume v. Commonwealth, 4 Commonwealth L. R. 97 (1906) (quasi-judicial acts of customs officer); 2 E. Laferrière, op. cit., 174, 175; Conseil d'État, 13 Jan. 1899, Lepreux, D. P., 1900–3–42. 24 Prisons: Davidson v. Walker, 1 N. S. Wales 196 (1901); Gibson v. Young, 21 N. S. Wales L. R. 7 (1900); Bourn v. Hart, 93 Cal. 321, 28 Pac. 951 (1892); Schmidt v. State, I Ct. Cl. (Ill.) 76 (1890); Lewis v. State, 96 N. Y. 71 (1884); Clodfelter v. State, 86 N. Car. 51 (1882); Moody v. State Prison, 128 N. Car. 12, 38 S. E. 131 (1901). Compare Metz v. Soule, etc. Co., 40 Ia. 236 (1875). In several of these cases convicts had been injured while engaged on work which produced revenue for the state. One early American case suggests that under certain conditions there may be liability to persons who are neither prisoners nor employees. Austin v. Foster, 9 Pick. (Mass.) 341, 346 (1830).

Hospitals: Riley, admx. v. State, 2 Ct. Cl. (Ill.) 20 (1906). Smith v. State, 169 N. Y. Sup. Ct. (App. Div.) 438, 154 N. Y. Supp. 1003 (1915), concerns an injury to a charity patient at an insane asylum, so a double ground of defense existed. But Martin v. State, 120 N. Y. Sup. Ct. (App. Div.) 633, 105 N. Y. Supp. 540 (1907), is probably squarely in point. It does not appear that the person injured here was a patient, and New York charities are liable for torts to strangers. Kellogg v. Church Charity Foundation, 203 N. Y. 191, 96 N. E. 406 (1911).

Educational institutions: Jorgensen v. State, 2 Ct. Cl. (Ill.) 134 (1911). In Hole v. Williams, 10 N. S. Wales 638 (1910), the court seems to blunder all around the easy reason for its decision.

25 Johnson v. State, 1 Ct. Cl. (Ill.) 208 (1899); Harper v. State, id., 322 (1904); Henke v. State, 2 id., 11 (1906); Fowler, admr. v. State, id., 109 (1910); Secretary of State v. Cock craft, 27 Ind. Cas. 723 (1915); Miller v. McKeon, 3 Commonwealth L. R. (Aus.) 50 (1906).

of fish and game; 26 operation of vessels in harbor work and fire fighting.27

Boards, corporations, and other instrumentalities performing public functions are similarly shielded. Thus agricultural societies are not liable for injuries suffered at fairs given by them, even though admission is charged.28 The East India Company, a private corporation, was exempt from judicial interference in its exercise of delegated governmental powers.29 These cases, irrespective of statute, did not go off upon lack of remedy, for the defendants enjoyed no sovereign prerogative.

At the other extreme are instances which leave little room to doubt the existence of liability. Where contract and tort overlap, as in the business of warehousing, judges are particularly ready to handle a negligent government without gloves.30 Any court, if granted jurisdiction, will make the state pay for wrongs causing un

26 Apfelbacher v. State, 160 Wis. 565, 152 N. W. 144 (1915). 27 Denning v. State, 123 Cal. 316, 55 Pac. 100 (1899).

28 Melvin v. State, 121 Cal. 16, 53 Pac. 416 (1898); Minear v. Board of Agriculture, 259 Ill. 549, 102 N. E. 1082 (1913); Hern v. Iowa State Agricultural Society, 91 Ia. 97, 58 N. W. 1092 (1894); Zoeller v. State Board of Agriculture, 163 Ky. 446, 173 S. W. 143 (1915); Berman v. Minnesota State Agricultural Society, 93 Minn. 125, 100 N. W. 732 (1904); Morrison v. Fisher, 160 Wis. 621, 152 N. W. 475 (1915); compare Lane v. Minnesota State Agricultural Society, 62 Minn. 175, 64 N. W. 382 (1895). A suit directly against the state failed in Dale v. State, 2 Ct. Cl. (Ill.) 368 (1915), and succeeded in Arnold v. State, 163 N. Y. 253, 148 N. Y. Supp. 479 (1914).


29 Nabob of the Carnatic v. East India Company, 2 Ves. Jr. 56 (1792); East India Company . Kamachee Boye Sahiba, 7 Wkly. R. 722 (1859). This is well enough as to corporations which really exercise some administrative discretion. But doubt may be felt when a mere carrier of mail is held not liable to the owner of a lost parcel unless because the government as bailee has exclusive right to the possessory remedies. Bankers', etc. Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 117 Fed. 434 (1902); United States v. Hamburg-Amerikan, etc. Gesellschaft, 212 Fed. 40, 43 (1914). Compare Baltimore, etc. Co. v. Baltimore, 195 U. S. 375, 382, and Ackerlind v. United States, 240 U. S. 531, 536 (1916). Exemption of contractors from tort actions because they are engaged in public work seems entirely too much of a good thing. 29 HARV. L. REV. 323.

30 Chapman v. State, 104 Cal. 690, 38 Pac. 457 (1894); Brabant & Co. v. King, [1895] L. R. A. C. 632. Compare Campbell v. State, 2 Ct. Cl. (Ill.) 298 (1914) (bailment for hire); and Gulf Transit Co. v. United States, 43 U. S. Ct. Cl. 183 (1908) (negligence in respect of dry-dock hired from the government), which is perhaps not quite so clear.

Incidentally, where remedial acts exist, the government is more readily held bound by the terms of general statutes. Sydney Harbour Trust Commissioners v. Ryan, 13 Commonwealth L. R. (Aus.) 358 (1911) (employers' liability); Herkimer Lumber Co. v. State, 131 N. Y. Supp. 22 (1911) (damages for suing out injunction).

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