just enrichment – the occupation of private real estate, 31 infringement of a patent,52 and the like – or for the destruction of property rights necessitated by a public improvement.33 Two Illinois decisions along this line supply food for thought. Both resulted from the use of a militia rifle range so laid out that bullets, even when discharged with all possible care, crossed a farm and endangered persons thereon. The first plaintiff, who owned the farm, sought to recover for depreciation of his land, loss of a crop which he had been unable to harvest, and sundry other damage. He was awarded something, but it is hard to tell for what loss the compensation is intended. The court argues that the injury was the necessary consequence of properly executing the State's orders, and did not result from negligence of the State's agents, for which there could have been no recovery. It is an instance of informal taking by eminent domain.34 But the second case cannot be so explained. There a farmhand who had been hit by one of the stray bullets was allowed compensation.35 Unless rifle practice by the militia in time of peace is not a governmental act, this seems very questionable law. And quære, is it not necessarily negligent on somebody's part to fire or cause to be fired shots bound to endanger life and limb?

Between these limits lies more uncertain territory upon which British colonial jurists for some years groped unhappily in the dark.36 The authoritative case of Farnell v. Bowman 37 has done much to resolve their doubts. It came before the Privy Council on demurrer, and a babble of conventional pleading obscures the real facts. Apparently New South Wales did the damage complained of while prosecuting some public work. The plaintiff alleged that trespassing government servants had destroyed his grass, trees, and

31 Remington v. State, 116 App. Div. (N. Y.) 522, 101 N. Y. Supp. 952 (1906); Porto Rico v. Ramos, 232 U. S. 627 (1914). See also Coleman v. State, 134 N. Y. 564 (1892).

32 Marconi's Wireless Telegraph Co. o. Commonwealth, 16 Commonwealth L. R. (Aus.) 178 (1913); Charles C. Binney, “The Government's Liability for the Use of Patented Inventions,” 52 Am. L. REG. 22.

33 Attorney-General of Straits Settlement v. Wemyss, L. R. 13 A. C. 192 (1888).

84 Hickox v. State, i Ct. Cl. (I11.) 81 (1890). Evans o. Finn, 4 N. S. Wales 297 (1904), using different language, reaches the same result. See also McCarty o. State, 2 Ct. Cl. (III.) 100 (1909), and Johnson v. State, id., 227 (1914).

35 Crawford v. State, 1 Ct. Cl. (III.) 91 (1890).

36 A. P. Canaway, “Actions against the Commonwealth for Torts," 1 COMMONWEALTH L. Rev. (Aus.) 241.

37 L. R. 12 A. C. 643,649 (1887); Eckford v. Walker, 2 N. S. Wales 369 (1902), acc.

fences by lighting fires. Held that he stated a good cause of action. The opinion indicates that so long as a state confines itself to oldfashioned, customary functions, it is subject to no liability for tort; but

“It must be borne in mind that the local governments in the Colonies, as pioneers of improvements, are frequently obliged to embark in undertakings which in other countries are left to private enterprise, such, for instance, as the construction of railways, canals, and other works for the construction of which it is necessary to employ many inferior officers and workmen. If, therefore, the maxim that the king can do no wrong'were applied to Colonial governments in the way now contended for by the appellants, it would work much greater hardship than it does in England.” Old cases against the East India Company concerning the exercise of its "civil capacity" lend historical backing to this distinction.38 Applying the principle, courts have brought colonial governments to book for negligently operating telegraphs, railways, and trading vessels.39

In this country the well-developed rules of municipal liability provide a convenient and illuminating analogy. While these rules are by no means identical everywhere, it is pretty generally agreed that cities and towns may be held for tort in connection with proprietary, commercial, or money-making functions, like the operation

38 Moodaly v. Moreton, 2 Dick. 652 (1785); Gibson v. East India Company, 5 Bing. N. C. 262 (1839). These are not mere dry curiosities. When the Crown took over the government of India about the time of the Mutiny it was provided that “The Secretary of State in Council” should be suable wherever the East India Company might have been sued. Thus the present administration is answerable for torts committed in such commercial transactions as the operation of railways. Mathradas Ramchand v. Secretary of State, 11 Ind. Cas. 58 (1911); Ross v. Same, 19 Ind. Cas. 353, 355 (1913).

In 1873 Sir R. Phillimore believed that a ship used for trading was subject to admiralty proceedings on account of negligent collision, despite the fact that she belonged to a foreign sovereign. The Charkieh, i Asp. M. C. 581, 598 (1873). And see United States v. Wilder, 3 Sumner (U. S. C. C.) 308, 315 (1838). This is probably not law. The Parlement Belge, L. R. 5 P. D. 197 (1880); Mason o. Intercolonial Ry. of Canada, 197 Mass. 349, 83 N. E. 876 (1908). The king's prerogative covers his property as well as his person. But of course the prerogative may be waived, as by the remedial statutes assumed in the text at this point.

39 Australia: Hannah v. Dalgarno, 3 N. S. Wales 494 (1903); s. C. 1 Commonwealth L. R. 1; Commonwealth v. Miller, 10 Commonwealth L. R. 742 (1910). Cape of Good Hope: Leonard v. Commissioner of Public Works, (1907) East. Dist. R. 146; Wynne v. Colonial Government, (1909) id., 193; Union Government v. Warneke, 5 Buchanan's A. C. 166 (1911). New South Wales: South Coast Road Metal Quarries v. Whitfield, 14 N. S. Wales 300 (1914).

of sewers, waterworks, and gas plants. As a practical matter tortious injuries are most likely to result from the exercise of such functions. The better-reasoned American cases take this for the typical ground of State liability,40 which brings us out on much the same lines as Farnell v. Bowman. It is hard to imagine any undertaking usually “left to private enterprise” which does not include a moneymaking element. Financial gain is vital to the continuance of private business.

But the few American authorities are at loggerheads. The Alabama case of State v. Hill 41 seems at first blush to conflict with the rule just laid down. It cannot bear analysis. A State receiver was running a railroad. One of the trains killed some horses. The bereaved owner brought action against the State. Recovery was denied on the ground that a sovereign is never liable for the negligence of its servants. The result is right -- for other reasons. Plaintiff simply barked up the wrong tree. Alabama did not own the railroad 42 and was not a proper defendant. The receiver should have been sued.43 The decision might thus be justified. Or it would



40 Sewer: Ballou v. State, 111 N. Y. 496, 18 N. E. 627 (1888). This might possibly have been dealt with under the canal acts. But it is not so explained. Litchfield 0. Bond, 186 N. Y. 66, 83, 78 N. E. 719 (1906) (some remarks in the latter case concerning the general question of state liability properly apply only to unauthorized or unconstitutional acts of officials). The court had broad jurisdiction, irrespective of canal problems. LAWS 1870, c. 321; 1876, C. 444; 1883, c. 205, 88 7, 13. Canals: Holmes v. State, i Ct. Cl. (Ill.) 324 (1905); Phillips v. State, id., 332 |(1905). Overruled by Morrissey v. State, 2 id., 254 (1914), which is discussed later. Inclined railroad: Burke v. State, 119 N. Y. Supp. 1089 (1909). Automobile race at fair: Arnold v. State, 163 N. Y. App. Div. 253 (1914), 148 N. Y. Supp. 479.

In France the state may be sued much as if it were an individual for injuries sustained on its private domain. 2 E. Laferrière, op. cit., 179; Trib. des Conf., 24 May 1884, Linas, D. P., 1885-3-110 (accident in state forest); Paris, 21 June, 1898, Dessauer, D. P., 1899–2–289, S. C. civ. rej., 12 June, 1901, D. P., 1902–1-372 (OpéraComique fire).

54 Ala. 67 (1875).

42 L. R. A. 35 n. to the contrary is in error. The owner was an ordinary public service corporation. The State, as its creditor, petitioned for and secured appointment of a receiver. Blake v. Alabama, etc. R. Co., Fed. Cas. 1493; State o. Same, 54 Ala. 139 (1875).

43 Another tort claimant did this after federal receivers were appointed. Davenport v. Alabama, etc. R. Co., Fed. Cas. 3588. And such is evidently the modern Alabama practice. McGhee v. Willis, 134 Ala. 281, 32 So. 301 (1901). Where receivers claimed to be public officers and so exempt from liability for the negligence of their subordinates, the Ohio court made short work of the defense. Meara's admr. 9. Holbrook, 20 Ohio St. 137 (1870).




have sufficed to point out that all statutes allowing an individual to sue the State had been repealed, which was fatal even in pending actions.44 But suppose the case rightly brought and prosecuted. The plaintiff could have recovered only from the corporation's assets and not from the public treasury, for this kind of judgment against a receiver is not personal. The railroad was operated on behalf of its creditors and stockholders. Those who pocket the benefits of operation should bear its burdens. If they could evade responsibility by hiding behind an invulnerable dummy defendant, what a scramble there would be for the sanctuary of receivership!

Next logically comes Morrissey v. State, 45 which overrules earlier Illinois decisions already referred to. The plaintiff was hurt by the collapse of a defective canal bridge. The opinion admits that the State may be liable for tort in a "private enterprise.” It denies that the maintenance of this canal, although for profit, was such an enterprise. Hence the claim was rejected.

While perhaps not every court would concur, there could be no great quarrel with the result if it were based upon the interpretation of facts. Since adequate means of communication and transportation are vital to public welfare, keeping up a certain specific means may reasonably be considered governmental. The court, however, takes its stand upon a supposed principle of law. The State, it says, is in no sense a corporation; therefore any activity of whatever character under its sole and direct control must necessarily be governmental; if the control is indirect — exercised, for instance, by

, voting corporate stock - an activity may be commercial. Now, as Professor Maitland amusingly puts it, Blackstone and older respectable authorities “parsonified” the King into a corporation sole.46 Much more truly may the modern commonwealth be called a corporation aggregate.47 But grant the premise; suppose that the state is not a corporation. Does that bare fact render it less able to inflict injuries or less properly called to account for them?


* Ex parte State, 52 Ala. 231 (1875).

2 Ct. Cl. (III.) 254 (1914). 46 BL. Comm., bk. 1, ch. 18, p. 469.

47 F. W. Maitland, “The Crown as Corporation,” 17 L. QUART. REV. 131, points out that three of our original States began their colonial existence under corporate charters. See W. Harrison Moore, same title, 20 L. QUART. REV. 351; also 1 COOLEY, TORTS, 3 ed., 208, and the recent case of Indianapolis v. Indianapolis Water Co.,

3 113 N. E. 369, 373 (1916).

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This thin-spun technicality will not sustain so weighty a conclusion. Plain common sense rejects such an exaltation of form over substance.

Cited to support the rule are cases dismissing tort actions in respect of agricultural societies, penal institutions, and State universities, of which the first collect admission fees at their fairs, the second make the prisoners do profitable work, and the last charge for tuition. These decisions are irrelevant. Education and the prevention of crime are none the less governmental because so administered as to produce incidental revenue.

This proposed rule is definite and easy to apply. So was the bed of Procrustes. Administrative liability cannot be laid off in convenient lengths with a yardstick. Each varying shade of circumstance calls for a fresh exercise of judgment to determine whether the particular function under consideration is public or private.

The same criticism may be leveled at Riddoch v. State, 49 which goes the full length of declaring that no state is subject to any tort liabilities except those explicitly created by statute. The opinion comments on many authorities, but haggles altogether too much over words and delves too little after principles. The unsuccessful plaintiff here had been injured by the breaking of a defective railing in an armory leased for a private athletic exhibition. Under substantially similar facts a municipal corporation was responsible. 50 So the court had to hold that there are different rules of legal right and wrong for municipalities and for the State. Mere assertion of this doctrine seems almost sufficient rebuttal. It is the sort of glery that excites popular distrust of the legal profession. It involves the disregard of well-established analogies.51 Reduced to “short and ugly terms” it means that might makes right — an astounding conclusion to issue from the lips of an American court.

Curiously enough, none of these cases much more than hints at the most plausible argument in their favor. It would seem a sound general principle that public money must not be applied to private

48 Curran v. Boston, 151 Mass. 505, 509, 24 N. E. 781 (1890).
49 68 Wash. 329, 123 Pac. 450 (1912).
50 Little v. Holyoke, 177 Mass. 114, 58 N. E. 170 (1900).

51 South Carolina v. United States, 199 U. S. 437, 463 (1905) (where a State takes over the liquor business, its agents must pay internal revenue tax); Hopkins v. Clemson College, 221 U. S. 636, 647 (1910); Louisiana v. McAdoo, 234 U. S. 627,631 (1913); and see adverse comment on the principal case in 74 CENT. L. J. 431.


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