relief. We have observed the legislative inclination to depart from this principle and indulge in extravagant expressions of sympathy for misfortune. Courts may well, then, be pardoned and even praised if they take a very firm stand against wasteful sentimentalism. True, it is universally recognized that the government's contracts subject it to legal obligations - the reverse holding, indeed, would class the state as an incompetent, like a lunatic or a minor. Yet this in itself fails to vindicate liability for tort. The private contractor almost always gives not mere technical consideration, but a substantial quid pro quo. Since fair exchange is no robbery, he should have his action. Non-contractual liability, on other hand, seems at first blush to mean a dead loss. However harsh the lack of relief, it is not illogical if and so far as damages for the sovereign's torts have to come out of the public treasury. But this last link breaks when the chain is stretched to include commercial transactions. A concrete instance will make the real situation clear:

Public trustees managed for the British government certain harbor improvements at Liverpool. The trustees were required to charge such rates as would cover maintenance, defray interest, and gradually repay the original investment. When repayment was accomplished the rates were to be lowered so as to yield just enough for upkeep. A plaintiff brought an action of tort against the trustees and got judgment. His recovery simply postponed the lowering of the rates. Neither the Crown nor the investors lost a farthing. The shipowners using the docks and wharves paid the damages. 52

In short, the government, like any other vendor of goods or services, can pass along to the consumer all charges incident to production. Such cost shifting will inevitably take place under a sound system of bookkeeping, which separates the accounts of the state as a sovereign from those of the state as a business man. Sacred funds collected by taxation will not be diverted to meet new or unexpected liabilities. That being the case, it is dog-in-the-manger policy to refuse a right of action in favor of those injured by public commercial dealings. 53

62 Mersey Docks Trustees o. Gibbs, 11 H. L. Cas. 686, 708 (1864).

63 Some jurisdictions allow suits against municipalities for torts committed in the exercise of functions which, while not commercial, are of peculiar local benefit. 25 Harv. L. Rev. 646. States may discharge similar functions for the advantage of particular localities. Massachusetts maintains a metropolitan park system in and about Boston, meeting its expenses by a special levy on the towns and cities so located as to

Another, but allied, line of argument is worth pursuing. Many commercial activities make the state a business competitor with its own citizens. In business our law has always sought to provide a fair field and no favor. The fear of unfair competition by a sovereign dates back at least to the Roman Empire:

“Theophilus, seeing a vessel laden with merchandise for his wife Theodora, ordered it to be burned. 'I am emperor,' said he, ‘and you make me the master of a galley. By what means shall these poor men gain a livelihood if we take their trade out of their hands?' He might have added, Who shall set bounds to us if we monopolize all to ourselves? Who shall oblige us to fulfil our engagements?” 54 These sentiments have their modern echo. It is shrewdly suspected that our parcel post, driving a sharp bargain with the railroads, has met express companies on better than even terms. The government enjoys tax exemptions. It sometimes ignores or conceals overhead charges. Plans are now and then concocted at Washington to force federal ownership of public utilities by deliberate cutthroat tactics.55 Honesty and fairness will be advanced if the law subjects state industries to the measure of tort liability which has always been imposed on the private business man. There is no adequate fiscal reason for barring recovery. Every consideration of justice demands that it be allowed.

As a matter of fact, governmental reparation for damage inflicted customarily goes well beyond the class of cases just discussed. Nor is this always by the fast-and-loose methods of legislative favor. It is familiar that the common-law liability of municipal corporations has sometimes been considered too restricted. New England cities and towns, for example, were once upon a time exempt from suit for accidents occasioned by obstructions or defects in their streets. But now legislation has abolished or narrowed the exemption. A similar tendency may be observed in statutes and practice relating to states. If harm results from the improper performance of a governmental act which is industrial rather than political, the sovereign very often submits itself to the judgment of the courts as to whether and what compensation should be given. When a British warship during time of peace collides with a private vessel, it has become commonplace to try out the claim and reimburse the claimant if he deserves it. The suit is nominally against the officer in charge of the offending warship, who, needless to say, does not pay the damages himself. 56 Congress specially refers such cases to the Court of Claims.57 This is presumably a recognition of moral obligation.

benefit from the parks. Here tort liability would result in making the beneficiaries bear the entire cost of maintenance. Other states may enforce such liability. It seems clear that Massachusetts will not because of the attitude already taken as to municipalities. Clark v. Waltham, 128 Mass. 567 (1880).

54 MONTESQUIEU, THE SPIRIT OF Laws, bk. 20, 17.

55 The Boston “Herald” for Oct. 2, 1913 — and presumably the newspapers in general contained an outline of one such plan respecting telephones and telegraphs.

If, as the writer believes, states should more generally subject themselves to actions for administrative torts, the problem of framing remedial statutes deserves some notice. Experience already has posted various signboards and warnings. Legislators must consider three main points:

1. The necessity or advisability of creating special tribunals to hear claims of this nature. Apparently there is no magic in such separate courts; even France has not developed an entirely distinct system of administrative law.58 With us, everyday courts pass constantly upon the responsibility of municipal corporations. The law of state responsibility should run approximately parallel. When the United States Court of Claims was founded, any sort of legal proceeding against the sovereign was rara avis. Now the glamor of novelty has worn off and the District Courts enjoy a limited concurrent jurisdiction.5


56 MATSUNAMI, COLLISIONS BETWEEN WARSHIPS AND MERCHANT VESSELS, 260 et seq.; H. M. S. Sans Pareil, [1900] L. R. P. D. 267.

57 Sampson v. United States, 12 U. S. Ct. Cl. 480 (1876); St. Louis, etc. Co. v. Same, 33 id., 251 (1898). See also Walton v. Same, 24 id., 372 (1889) (negligent failure to light beacon), and Commercial Pacific Cable Co. v. Same, 48 id., 461, 471 (1913) (mooring negligently dropped on submarine cable). An Illinois statute gives jurisdiction over claims for damage by the National Guard. Smith v. State, 2 Ct. Cl. (Ill.) 149 (1912).

Somewhat similar French cases before the Conseil d'État concern personal injuries and damage to property negligently caused by military and naval maneuvers: 18 Feb., 1864, Comp. la Paternelle, D. P., 1867-3-20; 17 July, 1896, DeNarbonne, D. P., 1897–3–72; 17 March, 1899, Commune de Villey-Saint-Etienne, D. P., 1900-3-64; 26 Jan., 1906, Arnoult, D. P., 1907-3-93; 24 May, 1912, Bathiat, D. P., 1914–3–73.

68 Edmund M. Parker, “State and Official Liability,” 19 Harv. L. REV. 335, 340. Compare A. V. Dicey, “Droit Administratif in Modern French Law," 17 L. QUART.

REV. 302.

69 1 U. S. Comp. STAT. (1913), $ 991 (20).

Some constitutions, however, forbid impleading the State in any court. Such provisions might be excised by amendment, but this is a clumsy, uncertain process. These jurisdictions can probably best get around the difficulty by establishing boards of claims which look and act like courts, yet are technically outside the constitutional prohibition.

2. The method of giving effect to judgments or awards against the state. This of course cannot be accomplished by anything like the common-law execution. It calls for some kind of legislative appropriation. The less red tape the better. With that sentiment any lawyer who has ever tried to collect a bill of costs from the United States will surely agree! The patience of Job might fail. under the elaborate ceremonial of recovering illegally assessed taxes from this same defendant. Massachusetts, in pleasant contrast, has a simple, workmanlike procedure. The court certifies the amount found due a claimant; the Governor signs a warrant; and the warrant is satisfied out of any available appropriation. The result is quick payment, secured with little trouble.

3. The form by which the statute shall define the remedy created. If courts invariably saw eye to eye in the matter of interpretation, a grant of jurisdiction as to “all claims against the state” might suffice. But there is great danger that this formula will lead to an implied exception of tort claims. Although Riddoch v. State may be wrong, the case reveals a tendency that must be reckoned with. No statute is a good risk which invites cautious judges to hamstring it.

Too specifically worded a law is equally hazardous. Legislative novelties are construed with bone-paring closeness. The New Zealand liability act applies to injuries "in, upon, or in connection with a public work, meaning thereby any railway, tramway, road, bridge, electric telegraph, or other work of a like nature used by or constructed by” the government. A mine is held not to be a work of a like nature.” Hence one run down by a steam lorry connected with a state coal mine has no remedy under the act.61 But presumably a man negligently injured in a coal mine operated as an adjunct of a railway could recover.62 Canada, too, struggles

60 Rev. Laws, C. 201, $ 3.
61 Barton o. The King, 28 N. Z. L. R. 629 (1909).

62 The King v. Shand, 23 N. Z. L. R. 297, 306 (1903) (excavation from which railway ballast was taken).



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with the judicial definition of "public work.63 There the injury must occur “on” a public work, and this little word introduces new complications. If a tug collides with a merchant vessel while towing loaded barges away from a public work, the merchantman's owners cannot sue the Crown.64 If the boiler of a state dredge explodes when the dredge is in midstream, suit by an injured stoker will not lie.65 If sparks from a railroad engine set fire to a building beside but not on the right of way, the government goes scot-free. 66 These cases may be strictly right, yet they must have surprised Parliament. They force arbitrary and unjust distinctions. Amendment can accomplish much. Still, a statute lagging always one stride behind the decisions is hardly desirable.

The happy mean would seem to be a grant of jurisdiction worded to include "all claims against the state, both at law and in equity, sounding in contract or in tort.” It is also best to provide explicitly such rights of discovery and other procedural rights as may be deemed advisable for private claimants. Finally, this plan ought in most instances to be supplemented by the statutory creation of certain specific liabilities which do not arise at common law. For example, if military training is to become a prominent feature of our national life, individuals should be allowed to sue the government when they are hurt or their property is damaged during maneuvers.

This is new law. Hardly any important cases were decided before 1885. Even now the scales are fairly free from the "weight of authority.” Many American lawyers do not yet realize that the old order may be changing; others have found to their sorrow that courts often show little affection for statutes which trench upon the state's lordly prerogative of wrongdoing. Under every novel set of facts and in every fresh jurisdiction results are painfully uncertain.

63 Brown v. The Queen, 3 Can. Exch. 79 (1892) (fishway in dam not public work); Larose v. The Queen, 6 Can. Exch. 425 (1900), aff. 31 Can. Sup. Ct. 206 (rifle range not public work); Hamburg American Packet Co. v. The King, 7 Can. Exch. 150 (1901), aff. 33 Can. Sup. Ct. 252 (channel in which improvements have been completed not public work).

64 Paul v. The King, 9 Can. Exch. 245, 270 (1904), aff. 38 Can. Sup. Ct. 126.

65 Question left open in Massicotte v. The King, 11 Can. Exch. 286, 291 (1911); apparently conclu led by Montgomery v. The King, 15 Can. Exch. 374, 379 (1915).

66 Chamberlain v. The King, 42 Can. Sup. Ct. 350 (1909), overruling Price v. The King, 10 Can. Exch. 105, 137 (1906). Same doctrine applied to another situation by Olmstead v. The King, 53 Can. Sup. Ct. 450 (1916).

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