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, 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, 1 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 v. 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.

10 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).

just enrichment - the occupation of private real estate," infringement of a patent,32 and the like or for the destruction of property rights necessitated by a public improvement. 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

3 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).

82 Marconi's Wireless Telegraph Co. v. Commonwealth, 16 Commonwealth L. R. (Aus.) 178 (1913); Charles C. Binney, "The Government's Liability for the Use of Patented Inventions," 52 Aм. L. REG. 22.

Attorney-General of Straits Settlement v. Wemyss, L. R. 13 A. C. 192 (1888). Hickox v. State, 1 Ct. Cl. (Ill.) 81 (1890). Evans v. Finn, 4 N. S. Wales 297 (1904), using different language, reaches the same result. See also McCarty v. State, 2 Ct. Cl. (Ill.) 100 (1909), and Johnson v. State, id., 227 (1914).

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

36 A. P. Canaway, "Actions against the Commonwealth for Torts," I 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, 1 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 v. 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 r. 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, 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 v. 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, §§ 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).

41 54 Ala. 67 (1875).

42 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 v. 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. v. Holbrook, 20 Ohio St. 137 (1870).