defendant, plaintiff being no longer required to establish its nonexistence.

"Workmen's compensation acts," as the name indicates, are designed to furnish relief practically irrespective of any culpability on the part of the employer or employé, unless the latter's negligence has been willful, though by some statutes his compensation is then merely reduced. A more or less elaborate schedule is provided, covering death and disability, and usually the rates are fixed by a percentage of wages for a fixed time. Sometimes resort is had to a fund created from premiums paid by the employer.344 These acts are indicative of the present tendency to remove the burden from the employé and place it upon the industry. Their advocates argue that the industry now bears the loss due to the deterioration and destruction of machinery, and that it should likewise add to the cost of production the loss due to the impairment or destruction of the employé.

844 See Bradbury's Workmen's Compensation and State Insurance Law; Boyd on Workmen's Compensation; also a partial collection of statutes in 2 Harvard Law Review, 212.

CHAPTER VI

GENERAL PRINCIPLES-PARTIES (Continued)

49. The Wrongdoer (Continued)—Several Liability-Imputed Culpa

49. The preceding chapter treated of liability as arising from the personal acts or omissions of the wrongdoer. There will now be considered the responsibility for another's wrong.

THE STATE

50. The state cannot be sued, except with its own consent. No jurisdiction will be assumed over the sovereign, ambassador, or public property of another nation.

To allow a direct suit to be brought against the sovereign in his own courts without his consent is inconsistent with the very idea of supreme executive power. But in many instances consent has been given. Thus by the United States Constitution the federal Supreme Court is

1 It would "endanger the performance of the public duties of the sovereign to subject him to repeated suits as a matter of right at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on the government in war and peace, and the money in his treasury." Briggs v. Light Boat Upper Cedar Point, 11 Allen (Mass.) 157, 162, per Gray, J.

2 Section 2, art. 3.

vested with original jurisdiction of "controversies between two or more states,' ," and the power to enforce his rights against the United States and some of the commonwealths by proceedings before courts or boards of claims has been given to the private individual. Whether a liability of the kind sought to be enforced comes within the wording of the act and the time and method of enforcement involves a question of construction, since the state can be sued only on its own terms. By some acts, claims sounding in tort have been excluded; by others, the state has consented to have its liability determined.' Frequently statutes are enacted applicable only to particular claims.

6

As a consequence of the absolute independence of the state, international comity induces each country to respect the dignity of others and to decline to exercise territorial jurisdiction over the person of a foreign sovereign," his ambassador or minister,10 or the public property of his nation.11

3 South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448. Inapplicable to suits by individuals (Amend. XI).

4 Thus the New York Court of Claims had no power to pass upon a claim the basis of which was that claimant's intestate, while upon a canal boat passing under a bridge, received injuries resulting in death, through the negligence of the state's agents or servants operating the bridge, where the statute which it was asserted conferred jurisdiction excluded "claims arising from damages resulting from the navigation of the canals." Locke v. State, 140 N. Y. 480, 35 N. E. 1076.

5 Treasurer v. Wygall, 46 Tex. 447, 458.

Bigby v. U. S., 188 U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519; Schillinger v. U. S., 155 U. S. 163, 15 Sup. Ct. 85, 39 L. Ed. 108; Hill v. U. S., 149 U. S. 593, 13 Sup. Ct. 1011, 37 L. Ed. 862; Langford v. U. S., 101 U. S. 341, 25 L. Ed. 1010.

7 See Code Civ. Proc. N. Y. § 264; Herkimer Lumber Co. v. State, 73 Misc. Rep. 501, 131 N. Y. Supp. 22; Litchfield v. Bond, 105 App. Div. 229, 93 N. Y. Supp. 1016.

8 See Bickerdike v. State, 144 Cal. 681, 78 Pac. 270.

The Sultan of Johore, an independent sovereign, could not against his will be sued in an English court for breach of promise of marriage. Mighell v. Johore, [1894] 1 Q. B. 149, 58 J. P. 224, 63 L.

10 See note 10 on following page. 11 See note 11 on following page.

CORPORATIONS

51. (A) Municipal. A municipal corporation is exempt from liability in the exercise of its governmental functions, but not for wrongs committed in its private character.

(B) Private and charitable. A private corporation organized for charitable purposes is not liable where due care has been exercised in the selection of its employé, though some courts have held this principle inapplicable where the injured party was not a beneficiary of the charity.

(C) Private and noncharitable. These stand on the same footing as an individual, and their liability depends on the rules applicable to employers.

(A) Municipal Corporations

The prevailing doctrine has been clearly stated by the New York Court of Appeals. To determine the liability of a municipal corporation, it should be kept in mind that J. Q. B. 593, 70 L. T. Rep. N. S. 84, 9 Reports, 447. And see De Haber v. Portugal, 17 Q. B. 196, 16 Jur. 164, 20 L. J. Q. B. 488, 79 E. C. L. 196; Brunswick v. Hanover, 6 Beav. 1, 8 Jur. 253, 13 L. J. Ch. 107, 49 Eng. Rep. 724, affirmed 2 H. L. Cas. 1, 9 Eng. Repr. 993; American Banana Co. v. United Fruit Co., 166 Fed. 261, 92 C. C. A. 325, affirmed 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047.

10 Holbrook v. Henderson, 4 Sandf. (N. Y.) 619; Rev. St. U. S. 1878, §§ 4063-4065 (U. S. Comp. St. 1913, §§ 7611-7613). This immunity does not extend to consuls. Wilcox v. Luco, 118 Cal. 639, 45 Pac. 676, 50 Pac. 758, 45 L. R. A. 579, 62 Am. St. Rep. 305.

11 Thus plaintiff's vessel, which had been seized under the authority of the Emperor of the French and converted into a man-of-war, was exempt from the jurisdiction of the United States courts. The Exchange v. McFaddon, 7 Cranch, 116, 3 L. Ed. 287. An unarmed mail packet belonging to a foreign sovereign, commanded by officers commissioned by him, is exempt from seizure. The Parlement Belge, 5 P. D. 197, 4 Aspin. 234, 42 L. T. Rep. N. S. 273, 28 Wkly. Rep. 642. An English court lacks jurisdiction to order the destruction of shells belonging to the Mikado of Japan on the ground that they infringed plaintiff's patent. Vavasseur v. Krupp, 9 Ch. D. 351, 39 L T. Rep. N. S. 437, 27 Wkly. Rep. 176.

it may possess "two kinds of powers-one governmental and public, and to the extent they are held and exercised is clothed with sovereignty; the other private, and to the extent they are held and exercised is a legal individual. The former are given and used for public purposes; the latter, for private purposes. While in the exercise of the former, the corporation is a municipal government, and while in the exercise of the latter is a corporate, legal indi-. vidual." 12 Though the difference between the governmental and private function is clear, it is oftentimes difficult to fix where the line should be drawn. "All that can be done, probably, with safety, is to determine as each case arises under which class it falls."

In any event, it must be evident that liability cannot arise out of the failure to perform a legislative, judicial, or discretionary duty, or by reason of the way in which official discretion has been exercised with respect thereto.1 This finds perhaps its best illustration in the case of streets and sewers. Whether they shall be laid out and constructed, of what size, and at what grade are questions of a judicial

12 Lloyd v. City of New York, 5 N. Y. 369, 374, 55 Am. Dec. 347, per Foot, J. "A town acts in the dual capacities of an imperium in imperio, exercising governmental duties, and of a private corporation, enjoying powers and privileges conferred for its own benefit. When such municipal corporations are acting within the purview of their authority, in their ministerial or corporate character, in the management of property for their own benefit, or in the exercise of powers assumed voluntarily for their own advantage, they are impliedly liable for damage caused by the negligence of officers or agents subject to their control, although they may be engaged in some work that will inure to the general benefit of the municipality.

* On the other hand, where a city or town is exercising the judicial, discretionary, or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute expressly or by necessary implication subjects the corporation to pecuniary responsibility for such negligence." Moffitt v. Asheville, 103 N. C. 237, 254, 9 S. E. 695, 697, 14 Am. St. Rep. 810, per Avery, J.

13 Lloyd v. City of New York, supra.

14 City of Anderson v. East, 117 Ind. 126, 19 N. E. 726, 2 L. R. A. 712, 10 Am. St. Rep. 35.