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no precedent for such an action as this; and we are com-
pelled to add, that there is no principle upon which it
can be sustained. The corporation is undoubtedly vested
with certain legislative powers, among which is the au-
thority to restrain swine from running at large in the
streets; and they have exercised it by enacting an ordi-
nance to that effect. The idea, that because they may
prohibit a nuisance, that therefore they must not only
pass a prohibitory law, but must also enforce it, at the
hazard of being subjected toall damages which may ensue
from such nuisance, is certainly novel. The corporation
of the city, in this respect, stands upon the same footing
within its own jurisdiction, as the state government does
in respect of The state at large. It is the duty of the gov-
ernment to protect and preserve the rights of the citizens
of the state, both in person and property, and it should
provide and enforce wholesome laws for that object.
But injuries to both person and property will occur,



which no legislation can prevent, and which no system
of laws can adequately redress. The government does
not guaranty its citizens against all the casualties inci-
dent to humanity or to civil society; and we believe it has
never been called upon to make good, by way of damages,
its inability to protect against such misfortunes. There
would be no end to the claims against this city and state,
if such an action as this is well founded. There are im
numerable illustrations of the application of the prin-
ciple. It suffices to say, that no government, whether
national, state or municipal, ever assumed, or was sub-
jected to a general liability of this description.

That the enforcement of law is a governmental act
is perhaps the most fundamental proposition in this
branch of this subject. The rule here is so plain a deduc-
tion from the general proposition as to the irresponsibil-
ity of the government that there is no conflict in the au-
thorities. The cases are not many; and they are all to
the same effect. The enforcement of law is a duty of gov-
ernment, to be sure, but it is a public duty ; and as a pub-
lic duty it is recognized only in public law. The result is
that there is no liability to suit for a failure in adminis-
tration, since administration is a most patent govern-
mental duty.

.Moreover, it is of course impossible that all of the law
could always be enforced at once. Indeed, that is an ele-
mentary fact in administration, not often appreciated,
that in administration it is always a question for the ex-
ecutive department what laws shall have enforcement,
what laws shall not; or at least, to the enforcement of
what laws shall the government direct its best efforts
and first attention, and what laws shall by that process
of procedure have a secondary enforcement. At all


events the executive department should have a free hand
iu this matter, and it gets that freedom for the exercise
of its discretion from this condition of the law.

Another instance of the application of this principle
which appears from time to time in the reports may be
represented by Wheeler v. Cincinnati, 19 Oh. St. 10
(1869), as well as by any other case. The plaintiff
brought his action seeking to recover from the defendant
the damages arising from the casual destruction of his
house < situated within tin 1 limits of said city) by fire;
on the ground that the defendant had failed and neg-
lected to provide the necessary cisterns and suitable
engines for extinguishing tires in that quarter of city
in which his said house was situated, and that certain
officers and agents of the tire department of said city
had neglected and failed to perform their duties in
regard to the extinguishing of said fire, by reason
whereof said fire was not extinguished, as it otherwise
might, and could have been. A demurrer to his peti-
tion, alleging these facts, was sustained by the court.
and judgment rendered for the defendant, which was sub-
sequently affirmed by the District Court, upon proceed-
ings in error.

Upon this case the opinion of the COURT was this : The
laws of this State have conferred upon its municipal cor-
porations power to establish and organize 1 fire compa-
nies, procure engines and other instruments necessary to
extinguish fire, and preserve the buildings and property
within their limits from conflagration, and to prescribe
such by-laws and regulations for the government of said
companies as may be deemed expedient. Bui the pow-
ers thus conferred are in their nature legislative and



governmental; the extent and manner of their exercise,
within the sphere prescribed by statute, are necessarily
i.. be determined by the judgment and discretion of the
proper municipal authorities, and for any defect in the
execution of such powers, the corporation cannot be held
liable to individuals. Nor is it liable for a neglect of
duty on the part of fire companies, or their officers, char-
ged with the duty of extinguishing fires. The power
of the city over the subject is that of a delegated quasi
sovereignty, which excludes responsibility to individuals
for the neglect or nonfeasance of an officer or agent char-
ged with the performance of duties. The case differs
from that where the corporation is charged by law with
the performance of a duty purely ministerial in its char-
acter. We know of no case in which an action like the
present lias been held to be maintainable.

Upon all the authorities this may be regarded as set-
tled law, that for nonfeasance in matter of administra-
tion there is no liability upon the government. Why
this must lie so it is not difficult to see. It is obvious
that the harm done is imputable to the state, incident
to the unavoidable imperfections of a machinery so com-
plicated as this system of administration. A govern-
ment which should hold itself liable for all injuries con-
sequent upon the failure of its administration to enforce
the laws could not respond long to the damages in which
it would be cast in innumerable suits. The truth of the
matter is that we do not conceive of this liability to be
enforced by the courts, but to be redressed at the ballot. 8

* Administrative— Montreal v. Mulcair, 28 Can. Sup. 458; Dela-
cauw v. Fosbery, 13 N. S. W. Wkly. Notes 49; Spalding v. Vilas, 161
U. S. 483; Workman v. New York, 179 U. S. 552; State v. Hill, 54
Ala. 67; Chope v. Eureka, 78 Cal. 588; Piatt v. Waterbury, 72


§ 12. Responsibility of the officer.

The administration as an administration cannot be
impleaded for an action done in the pursuance of the
execution of the law. A late case which lays down the
law with perfect discrimination is Raleigh v. Goschen
[1898] 1 Ch. 73. This action was commenced against
the Eight Hon. George J. Goschen and five other per-
sons described as the Lords Commissioners of the Ad-
miralty, and Major E. Raban, described as the Director-
General of Naval Works, the object of which was to es-
tablish against the Lords Commissioners and the Direct-
or-General that they were trespassers in entering upon
certain land the property of Raleigh, the plaintiff, in the
neighborhood of Dartmouth, to stake out ground for a
naval college preliminary to process for compulsory pur-
chase. By the defense it was submitted that the court
had no jurisdiction to enter the action; that the defend-
ants were agents of the crown ; and that they were not
liable to be sued in respect of acts done by them as part
of The executive government on behalf of her majesty;
and they submitted, as a matter of law, that the action
could not be maintained.

RoxiER, J., said: I will state some principles of law
which I conceive govern this class of cases. Xow, in
the first place, inasmuch as the plaintiffs could not sue

Conn. 531; Love v. Atlanta, 95 Ga. 129; Arms v. Knoxville, 32 111.
App. 604; Summers v. Daviess Co. Com'rs, 103 Ind. 262; Ogg v. Lans-
ing, 35 la. 495; Brown v. Vinalhaven, 65 Me. 402; Boehm v. Mayo,
61 Md. 259; Buttrick v. Lowell, 1 Allen 172; Edes v. Boardman,
58 N. H. 580; Wild v. Paterson. 47 N. J. Law, 406; Levy v. Mayor.
1 Sandf. 465; Springfield F. & M. Ins. Co. v. Keeseville, 148 N. Y. 46;
Wheeler v. Cincinnati, 19 Oh. St. 19; McDade v. Chester, 117 Pa. St.
414; Wixon v. Newport, 13 R. I. 454; Horton v. Mayor, 4 Lea, 47;
Mulcairns v. Janesville, 67 Wis. 24.



the crown for a past or threatened trespass, they could
not in respect to any trespass, sue the defendants in the
capacity of agents for or as respresenting the crown.
On the other hand, the plaintiffs could sue any persons
actually committing or threatening the trespass, even
though those persons only acted on behalf of the (Gov-
ernment. But in this case they could be sued not be-
cause, but in spite of the fact that they occupied official
positions or acted as officials. In other words, to sum
up shortly the result of the above by the use of conven-
ient phraseology, the plaintiffs in respect of the matters
they are now complaining of could sue any of the de-
fendants individually for trespasses committed or threat-
ened; but they could not sue the defendants officially or
as an official body. I therefore order the present action

It will be seen that the decision in this case covers
the whole ground ; it provides for The case where the ad-
ministration is sued as an entity ; it provides also for the
case where The administration is brought into the courts
as a collection of individuals. Suit may not be brought
against an official body as an official body, since that is
in last analysis a suit against the stale; but suit may
well enough lie brought against the members of the body
upon the basis of a single action against simple indi-
viduals. In the practical business of law it is worth
note that an administrative body should never be made a
defendant in its official capacity; the suit should always
be brought against the persons composing the board as
private parties. The theory that the administration can-
not do a wrong act does not go so far in the protection
of the administration as to the individuals composing
the administration ; no immunity can be invoked by them.


This same distinction may be taken in the case of a
single public officer as well; he also may be conceived
of in one view as an official, in another view as an in-
dividual. Gidley v. Palmerston, 3 Brod. & Bing. 275
(1835), is often cited to this effect. One Holland was
a retired clerk upon a retiring allowance of £200 a year;
he had become embarrassed in his pecuniary relations;
and the Paymaster-General had suspended a part of his
allowance to accrue as a fund for liquidating the claims
of certain half-pay officers, widows and other persons
upon the compassionate list, for whom Holland had act-
ed as agent. The executor of Holland now sued Lord
Palmerston, Paymaster-General, in assumpsit, alleging
that Parliament had placed sufficient funds at his dis-
posal to pay the allowance, whereupon it became his duty
to pay it over in each year, wherefore he might be said
to have promised to pay it over.

Dallas, Chief Justice, took this difference : On these
facts the question arises: whether, upon all or any of
the counts in the declaration, the present action can be
maintained; and we think that it cannot be maintained.
It is not pretended that the defendant is to be charged
in respect of any express undertaking or agreement be-
tween him and the testator, or in respect of any other
character than his public and official character of Secre-
tary at War. On principles of public policy, an action
will not lie against persons acting in a public character
and situation, which from their very nature would ex-
pose them to an infinite multiplicity of actions; that
is to actions at the instance of any person who might
suppose himself aggrieved; and though it is to be pre-
sumed that actions improperly brought would fail, and
it may be said that actions properly brought should suc-



ceed; yet, the very liability to an unlimited multiplicity
of suits, would, in all probability, prevent any proper
or prudent person from accepting a public situation at
the hazard of such peril to himself.

An official, therefore, cannot be sued in his official ca-
pacity, since that would involve a questioning of the
validity of an official act, a thing inconceivable; but well
enough an officer may be sued in his private capacity,
since that involves the determination of the question
whether his act was an official act done in pursuance of
law or whether the action was without justification of
law; for in the latter case the act is as much a private
wrong as if done by any private person. That is the dis-
tinction taken in the cases cited at this point ; it is stated
absolutely here, since these are general principles of ad-
ministrative law, it remains to work the law out in more
detail when the law governing administration will be
scon to be more complex. 9

9 Responsibility of the Officer. — Rogers v. Dutt. 13 Moo. P. C.
236; Gidley v. Palmerston, 3 Brod. & B. 275; Raleigh v. Gosehen
[1898] 1 Ch. 73; Baker v. Ranney. 12 Grant Ch. 228; Kearney v.
Creelman, 16 N. S. 228; Amy v. Supervisors, 11 Wall. 136; United
States v. Lee, 106 U. S. 196; Coblens v. Abel. Wool worth 293;
Eslava v. Jones, 83 Ala. 139; McClure v. Hill, 36 Ark. 268: Ex
Parte Tinkum, 54 Cal. 201; Thames Mfg. Co. v. Lathrop, 7 Conn.
557: Denver v. Dean, 10 Colo. 375; Dowling v. Bowden, 25 Fla. 712;
Collins v. McDaniel, 66 Ga. 203; Strickfaden v. Zipprick. 49 111.
286; Jarratt v. Gwathmey, 5 Blackf. 237; MeCord v. High. 24 la. 336;
Bridge Co. v. County Com'rs, 10 Kan. 326; Marksberry v. Beasley.
8 Ky. L. Rep. 534; State v. Mason, 43 La. Ann. 590; Hayes
v. Porter, 22 Me. 371; Akin v. Denny, 37 Md. 81; Keenan v. South-
worth, 110 Mass. 474; Raynsford v. Phelps, 43 Mich. 342; State v.
Coon, 14 Minn. 456; Baugh v. Lamb. 40 Miss. 493; St. Joseph Ins.
Co. v. Leland, 90 Mo. 177; Merritt v. McNally, 14 Mont. 228; Miller
v. Roby, 9 Neb. 471; State v. Kruttschnitt, 4 New 178; Orr v.
Quimby, 54 N. H. 590; Bonnel v. Dunn, 28 N. J. L. 153: Hover v.
Barkhoof. 44 N. Y. 113; Holt v. McLean. 75 N. C. 347; Murphy v.


§ 13. Public action.

Such, therefore, is the responsibility of the officer to
the law of the land by the common law principle. It is
a rule almost without exception that the officer may be
impleaded for any wrong act done in the course of ad-
ministration as a private wrongdoer may be. If this is
the end of the matter the state in time of stress can
never obtain vigorous enforcement of the law, it must be
admitted. But may the state not protect its officers
from suits based upon acts done in the course of admin-
istration by some special legislation, and thereby may
not the situation be saved? This was the gist of Mitch-
ell v. Clark, 110 U. S. G33. An officer of the United
States forces during the rebellion had seized and with-
held from the owners two store-houses in St. Louis, and
this was a suit for the rent due for these three months.
Among other defenses the defendant pleaded 12 United
States Statutes, 755, Section 4, as follows : That any or-
der of the President, or under his authority, made at any
time during the existence of the present rebellion, shall
be a defense in all courts to any action or prosecution,
civil or criminal, pending or to be commenced, for any
search, seizure, arrest or imprisonment, made, done or
committed, or acts to be done under or by virtue of such
order, or under color of any act of Congress, and such
defense may be made by special plea or under the gen-
eral issue. In pursuance of this statute, the officer made
defendant introduced in evidence a military order issu-
ing frpm Washington conveyed to him by the General in
command of his department.

Holurook, 20 Oh. St. 137; Work v. Hoofnagle, 1 Yeates 506; State
v. Ruth, ft S. Dak. 84; Alvord v. Barrett, 16 Wis. 175: Richmond
v. Long's Adm'rs, 17 Grat. 375.



Mr. Justice Mii.lkk. after reciting the facts in the fore-
going language, continued: It is not at all difficult to
discover the purpose of all this legislation. Throughout

a large part of the theatre of the civil war the officers
of the army as well as many civil officers were engaged
in the discharge of very delicate duties among a class of
people who, while asserting themselves to be citizens of
the United States, were intensely hostile to the govern-
ment, and were ready and anxious at all times, though
professing to be noneombatants, to render every aid in
their power to those engaged in active efforts to over-
throw the government and destroy the union. Some spe-
cial statutes were passed after delay of a general charac-
ter, but it was soon seen that many acts had probably
been done by these officers in defense of the life of the na-
tion for which no authority of law could be found, though
the purpose was good and the act a necessity. That an
act passed after the event which in effect ratifies what
has been done, and declares that no suit shall be sus-
tained against the party acting under color of authority,
is valid, so far as Congress could have conferred author-
ity before, admits of no doubt. These are ordinary acts
of indemnity passed by all governments when occasion
requires it.

That is the gist of this case: These are ordinary acts
of indemnity passed by all governments when occasion
requires it. The inquiry at once presents itself, how can
such an act stand as constitutional in the United States?
Such a statute applied to matters between man and man
could not be valid; it would deprive the party wronged
of his fundamental rights. Yet it is allowed to be due
process of law to protect an officer from the consequences



of an act done in the course of administration, and prop-
erly so since this is the exercise of an indispensable gov-
ernmental power in the last analysis. This can apply of
course only to the ratification of such acts as there was
constitutional power in Congress to have authorized if
it had acted in advance. It must always happen that in
a few cases for acts performed in good faith in the pres-
ence of an overpowering emergency there would be no
constitutional power to make them good by subsequent
legislation, since there would have been no power to au-
thorize the seizure or the arrest by precedent legislation.

Another class of statutes for the exoneration of pub-
lic officers is much more equitable for all concerned.
An example of this sort is United States v. Sherman,
98 (\ S. 565 (1878). This was an application for a man-
damus to John Sherman, Secretary of the Treasury, com-
manding him to pay to Alexander McLeod, the relator,
the sum of .^4,279.94, with interest. It appeared that
the relator had recovered judgment against one T. C.
Callicott, a supervising special agent of the Treasury
Department. The relator thereupon applied to the court
for a certificate of probable cause under 12 United States
Statutes, 711; he thereupon presented the certificate to
the Treasury Department; where he was refused pay-
ment of full interest.

Mr. Justice STRONG refused the writ as prayed for:
The twelfth section of the act of Congress of March 3,
1863, relative to suits against revenue officers, enacted
that where a recovery shall be had in any such suit, ami
the court shall certify that there was probable cause
for the act done by the collector or other officer, or that
he acted under direction of the Secretary of the Treas-



ury or other proper officer of the government, no exe-
cution shall issue against the collector or other officer,
but the amount so recovered, shall upon final judgment
be provided for and paid out of the treasury. When
the certificate is thus given, the claim of the plaintiff
in the suit is practically converted into a suit against
the government, but not until then; thus interest runs
from that time, not sooner.

In any usual conditions of government, this is a so-
lution of the general problem that will commend itself.
In those usual conditions it is only fair that the gov-
ernment itself should exonerate the officer from the con-
sequences of an act done with probable cause in the
course of administration; and in especial that seems the
right of the matter when an act of a subordinate officer
is in question which has been done in accordance with
express orders of his superior officer. If there is no
such general statute, the officer may hope with some
confidence from a special statute for his special case.
if it is clear that his act \v;is <\(\iw with probable cause
in the course of the execution of the law. More than
that, since this is also the view of the internal law of
the administration that inferior officers ought act in
obedience to their superiors, the administration will do
its best to relieve its officers against the consequences
of such proper obedience. One common practice is to
put the forces of the office of the Department of Justice
at the disposal of the officers to present his defense.
And the disbursing side of the Treasury Department has
been known to be so bold as to allow the costs of litiga-
tion to an officer as expense incurred in the course of
duty. 1 "

10 Public Action.— Gidley v. Palmerston, 3 B. & B. 275; Grant


§ 14. Official.

The condition of the law governing administration
being this, that the administration itself could not be
sued, but any member of the administration might be,
the attempt has often been made in appreciation of this
situation to bring a suit against the individual officer,
when in truth what is wished is to get relief' against
the state itself by force of the proceeding against the
officer. A late case reviewing the failure of this at-
tempt is the elaborate case of Pennoyer v. McConnaughy,
140 U. S. 1 (1891). This was an equitable suit against
the Governor, Secretary of State, and Treasurer of Ore-
gon, who comprised the Board of Land Commissioners,
to restrain and enjoin them from selling and conveying
a large tract of land to which plaintiff claimed title.
An act of the Legislature of Oregon had required the
Board of Commissioners to cancel such certificates as
his, in pursuance of which the commissioners were act-
ing. There was a demurrer to the bill on the ground
that the suit was in substance against the state.

Mr. Justice Lamar delivered the opinion of the court :
The immunity of a state from suit is absolute and tin-
qualified, and the constitutional provision securing it
is not to be construed so as to place the state within the
reach of the process of the court. Accordingly, it is
equally well settled that a suit against the officers of

v. Secretary, 2 C. P. D. 445; Dinsman v. Wilkes, 12 How. 390;
Mitchell v. Clark, 110 U. S. 633; United States v. Sherman, 93
U. S. 565; Bayard v. United States, 127 U. S. 246; Little Rock, etc., R.
R. Co. v. Wort hen. 46 Ark. 312; Sumner v. Beeler, 50 Ind. 341;
State v. Burke, 33 La. Ann. 512; Warren v. Kelley, 80 Me. 512;
Fisher v. McGirr, 1 Gray, 1; State v. Godwin, 123 N. C. 697; Wil-
liams v. Schmidt, 14 Ore. 470; Campbell v. Sherman, 35 Wis. 103.

Adm. Law — 4.


a state to compel them to do acts which constitute a
performance by it of its contracts, is, in effect, a suit
against the state itself. In application of this latter
principle two classes of cases have appeared in the de-
cisions of this court, and it is in determining to which
class a particular case belongs that differing views
have been presented. The first class is where the suit
is brought against the officers of the state as represent-
ing the state's action and liability, thus making it,
though not a party to the record, the real party against
which the judgment will so operate as to compel it
specifically to perform its contracts. The other class
is where a suit is brought against defendants who, claim-
ing to act as officers of the state, and under the color
of an unconstitutional statute, commit acts of wrong

Online LibraryBruce WymanThe principles of the administrative law governing the relations of public officers → online text (page 4 of 44)