CHAPTER X. Exercise of I. functions. Title and rank. Indemnity for ex penses. Salary. RIGHTS AND DUTIES OF PUBLIC OFFICIALS. FIRS IRST of all, the official has the right of exercising the functions of his office. This is called his competence, and is entirely a matter of public interest. It is at the same time his duty to exercise his functions as required, and to do so or not is not dependent on his individual will. The State may change, increase, or diminish the powers of an office. 2. An official has certainly a right to the title and rank belonging to his office, but this right depends on political reasons, and may be modified by legislation. On the other hand, rank and title may remain as the private right of an ex-official. 3. The right of being indemnified for expenses incurred and injury suffered in the interests of the State is a matter of private law, and belongs equally to paid and unpaid officials. 4. There is no similar right to payment for the services themselves. It depends on the will of the State whether an office shall be paid or unpaid. A paid official has a right at private law to his salary. A distinction may be made, as in many German States, between two elements in the payment of officials: (1) payment of rank (Standesgehalt), (2) payment of service (Dienstgehalt). It is the duty and interest of the State to maintain, in a suitable way, those officials whose whole professional activity it employs; but there is further the expense which is involved in or connected with the actual exercise of the office (Dienstaufwand und Representationskosten)1. This distinction is of importance in the case of officials retiring from active service. They retain a claim to the former kind of payment, though none with respect to the latter. The former is in greater degree a matter of private right, the latter is bound up with the exercise of public functions. Where perquisites and fees are attached to particular offices they are to be considered of the latter character, even where they are reckoned along with the regular maintenance of the officials. The State has the right of altering such fees: it is only a matter of equity if a fixed salary is raised in order to compensate a diminution of fees: there is no legal claim to compensation. 5. The right to a retiring pension arises from the fact that Pension. the official has a claim to his salary at private law if he is compelled to give up his office through no fault of his own. The pension should be proportioned to the salary of maintenance (Standesgehalt): or, if there is no distinction of this sort formally recognised, the expenses of actual tenure of office must be deducted in fixing the pension. It is expedient that the amount and conditions of pensions should be definitely fixed by law, in order to avoid anything arbitrary in the awarding of them. A general system of pensions constitutes a heavy burden on the treasury, but such a burden cannot well be avoided where the State requires professional officials. The income of a government official is in most cases very small, compared with the earnings of commerce and industry, and commonly requires higher intellectual qualifications and more education. It is therefore a duty of the State to assure those who devote their lives to it against want. The public is compensated for the expense by better service, and the temptations to corruption are avoided. The widows and orphans of State servants have no legal claim to a pension. The salary is not hereditary. Many States have the good arrangement of a public pension-fund, chiefly maintained by deductions from official salaries. 6. The duties of officials mostly follow from their rights: Duties of they owe, further, obedience to their superiors, fidelity to the 1 Gönner, ibid. 144. 'Beilage' ix. to the Bavarian Constitution, §§ 17-19. Obedience. head of the State and to the nation, and, if occasion requires, secrecy. The oath of office, which is commonly demanded, does not create this obligation, but only strengthens it. It is not the condition of the official's duties, nor does it modify their extent. The kind of obedience varies according to the nature of the particular function. It is different for administrative and for judicial functionaries. The latter must obviously occupy, on the whole, an independent position, but even the former are not bound to an absolute or servile obedience. Limits are imposed by both law and morality: in particular cases the extent of the obligation to obedience may raise very difficult questions. (a) An official may examine if the order he receives is regular in form, i. e. if it is one which his superior is by his office entitled to give, and not due to some caprice, and if it is within the sphere of his own office to execute: he may further refuse to carry out an order which is not signed, if a signature is required. He is a public functionary, and not a private servant, and is therefore competent to examine the form of orders as a test of their legality. If the question of competency is doubtful, and the superior affirms his right to give the order, the inferior must obey. His sole right, and at the same time his duty, is to put his scruples before his superior, and to await a repetition of the order. (b) In no case can an official be bound to render obedience which would violate the higher principles of religion and morality, or make him accomplice in a crime. Such acts can never be the duty of his office. The servant of the State cannot be required to do what a man would refuse from humanity, a believer from religion, or a citizen from regard to the criminal law of the land". a [There is surely a confusion here between the moral duty of the individual and his legal duty as an official. As 'a counsel of perfection,' it is the duty of a government to respect morality, but it cannot be the right of an official to resist on other than legal and constitutional grounds. An official certainly cannot be required to break the law of the land'—criminal or civil— but if he receives an order, which he regards as contrary to (his) religion or 6 (c) The subordinate official cannot refuse to obey an order, the object of which appears to him illegal or unjust. He can only make representations on the subject to his superior. He ought to presume that his superior does not wish to violate the law, and that he has not considered the matter sufficiently, and may be led to alter his decision by respectful and frank expression of opinion. An official should not fail to save his superiors and the State from mistakes, but if the superior abides by his orders obedience is due, and the superior must bear the responsibility. To authorise resistance in such cases would be to destroy the unity of the State, to paralyse its power, and would lead to far worse consequences than single violations of the law 2. The same is to be said of unconstitutional commands. The subordinate must not, by resisting, himself violate constitutional obedience. 7. The spirit of fidelity (Treue) goes further than the duty Fidelity, of obedience. The latter is fulfilled when the official carries out the order given him strictly in form and substance. The former binds him in the whole of his conduct. Fidelity or loyalty is not, indeed, as in the feudal system, the main principle of society: the duties of officials are now determined by legislation. It is not so much a personal allegiance to his prince as the requirements of the State which influence his action. Nevertheless, fidelity still forms the basis of the harmony and moral cohesion of the public service. morality, he cannot claim, on that ground alone, to set it aside and yet retain the position of an official. The next paragraphs (e) and (7) put the case accurately, but they appear to contradict what Bluntschli says here.] 2 * Several constitutions formally express this principle, e. g. the Hanoverian Constitution of 1883, § 161: An order issued in proper form by a superior official imposes no responsibility on the inferior who receives it, but on the superior who issues it.' So in the Constitution of Meiningen, § 104, and of Altenburg, § 37: 'The responsibility for every illegal act belongs to him who orders it. The orders of a higher official are only an excuse if they are in proper form, and have been issued by a competent authority, who then becomes responsible for them.' Gönner, ib. § 79, appears to understand the gloria obsequii in the same way, but he uses an unfortunate expression when he speaks of the official as a machine'; for he recognises the duty of remonstrance against unjust commands, and limits the duty of obedience both in form and object, p. 208. Besides, the expression 'machine' has a monkish flavour. Cp. on this contested point Schulze, Deutsches Statsrecht, i 325 ff.: Laband, i. 427 ff.: Löning, Verwaltungsrecht, p. 122 ff, An official who, in important though isolated points, holds, and on occasion expresses, political convictions different from those of his superiors, does not thereby violate the duty of fidelity. But if on permanent and fundamental principles he finds himself in opposition to the government, and hostile to it; if, e. g. in a monarchy, he is a declared republican, and works for the establishment of a republic, or vice versa, he breaks the bond of fidelity, and ceases to be a harmonious member of the whole. It is the same with a functionary who takes part in systematic and continuous opposition intended to overthrow or impede the government. This is a breach of fidelity which no government can tolerate without falling into anarchy. Systematic hostility to the ministry, although there is no particular act of disobedience, is likewise a breach of fidelity. An official may have absolutely divergent, and even hostile convictions, without ceasing to be faithful in his office. But he must not in his official position express such sentiments. If he believes himself conscientiously bound to declare his hostility in word and deed, he ought to resign his office. It is obvious that judges are in a more independent position. Their office is not political in character, and not dependent on the will of the government. A further consequence of official fidelity is that no official accept service under a foreign State, or decorations, pensions, or other distinctions of the sort without permission of his own government. Secrecy. 8. Official secrecy is not to be understood in an absolute sense, but only so far as specially ordered, or in matters where 3 Washington (quoted in Guizot's Pref. to his Life, i. p. xxiii): As long as I shall have the honour to govern the public affairs, I will never knowingly place in any important office any man whose political maxims are contrary to the general measures of the government. This would be in my opinion a kind of political suicide.' [Letter to Timothy Pickering, Writings, vol. xi. p. 74, quoted in Guizot's Essay, Eng. trans. p. 84.] How strongly German statesmen have felt the evils which accrue to the State from unfaithful officials, may be seen from the following passionate utterances of Stein (Pertz's Life of him, ii. p. 501): 'We cannot overcome the insolence and turbulence in the disposition of most of the public officials except by rigorous measures, prompt removal, imprisonment or banishment of those who in this way spread dangerous opinions, or undermine the authority of the government.' |