il PRINCIPLES OF PRUSSIAN ADMINISTRATION THE MACMILLAN COMPANY NEW YORK BOSTON CHICAGO DALLAS SAN FRANCISCO MACMILLAN & CO., LIMITED LONDON BOMBAY CALCUTTA MELBOURNE THE MACMILLAN CO. OF CANADA, LTD, TORONTO PRINCIPLES OF PRUSSIAN ADMINISTRATION BY HERMAN GERLACH JAMES, J.D., PH.D. ADJUNCT PROFESSOR OF GOVERNMENT IN THE UNIVERSITY OF TEXAS THE MACMILLAN COMPANY 1913 All rights reserved COPYRIGHT, 19x3, BY THE MACMILLAN COMPANY. Set up and electrotyped. Published February, 1913. J. 8. Gushing Co. Berwick & Smith Co. Norwood, Mass., U.S.A. I MY MOTHER IN LOVING GRATITUDE ',459796 PREFACE WE in the United States are standing at the begin- ning of a period of administrative development. Our individualistic tendencies have ever tempted many of us to support the Jeffersonian doctrine that the less government our people had the better for the people, and this has been directed, not only to the activities of the legislative branch of the government, but especially also to the administrative side of government. Our motto has been, as little interference by the government with the activities of its citizens as possible, and this view has opposed adequate regulation as well as actual participation by the government in the various fields of individual endeavor. The new period which has now begun does not neces- sarily signify a change in the point of view, but merely perhaps a different conception of its application. We still desire as little government as possible, but we have a different idea as to how little is possible. Evi- dences of this changed standard are found, for example, in the public service commissions, developed in New York, Wisconsin, and other states, whose function is to Vlll PREFACE supervise in the interests of the public those under- takings which affect the public in a particular way. In the field of municipal government many have come to see the desirability of a different kind of state control. In place of legislative and judicial control, recognized experts desire an administrative control similar to that found in European countries. This would mean a still further development in the admin- istrative activity of the government. With the growth of our population and the conse- quent increasing congestion of the individuals in the state, restrictions on the individual in the interests of the community of necessity become more numerous. The exercise of these restraints is a function of the administration, whose activity is consequently continu- ally increasing in this direction also. What principles shall be followed in the development which the administration thus seems destined to undergo? Shall it be allowed to proceed in blind dis- regard of the treatment similar problems have received and are receiving elsewhere ; or is it not better to con- sider first what other peoples have done in coping with similar difficulties in their own development? It is without doubt dangerous to try to transplant the governmental growths of one country into the polit- ical life of another country whose history and institu- tions may be wholly foreign and unrelated. But it is PREFACE IX also without doubt helpful to become acquainted with the institutions of another country in their historical setting and present significance, to the end that one may clearly consider what features might to advantage be adopted and what mistakes might well be avoided. That is the whole purpose of this modest work, to give our students, our scholars, our legislators, and all other persons interested in our public affairs a general insight into the internal administration of a state which has been developing its present system through a period of hundreds of years, a system which has served as model for nearly all other states in the German Em- pire. The author has made no attempt to criticise either favorably or adversely the system as it stands. He has made no comparisons with the system in our own or other countries. His sole purpose was to pre- sent in concise form a more or less detailed description of the Prussian system. A valuable critical and com- parative study can be undertaken only after a general comprehension of the foreign system has prepared the way by furnishing a proper basis. A word remains to be said about the sources used in the preparation of the work. Indispensable as a reference book for all acts of administrative import is the work of Count Hue de Grais, "Handbuch der Ver- fassung und Verwaltung, " now appearing in the twenty- first edition. For the text of the most important X PREFACE laws and ordinances one can count on the compilation of' Professor Stier-Somlo, "Sammlung der Verwalt- ungsgesetze fur Preussen," which appeared in 1912. Both works are cited in the literature enumerated in the introduction. Many helpful suggestions as to arrangement and treatment of the material were obtained by the author in the excellent lectures of Professor Gerhard Anschutz, professor of public law in the University of Berlin, on German Administrative Law in the winter semester, 1911-1912. H. G. J. HALLE A/S., JULY, 1912. CONTENTS PAGE INTRODUCTION i CHAPTER I. HISTORICAL SURVEY .13 II. xTHE RELATION BETWEEN STATE ADMINISTRATION AND IMPERIAL ADMINISTRATION .... 59 III. XTHE ORGANS OF ADMINISTRATION .... 67 IV. ;FoRMS AND LEGAL EFFECT OF ADMINISTRATIVE AC- TION . .' 152 V. PROTECTION OF THE INDIVIDUAL AGAINST ACTS OF THE ADMINISTRATION 191 VI. XTHE LAW OF ADMINISTRATIVE OFFICERS . . 204 VII. /THE POLICE POWER 218 VIII. POSITIVE MEASURES FOR THE FURTHERANCE OF THE MATERIAL AND MENTAL WELFARE OF THE INDIVIDUALS IN THE STATE . . . .259 ABBREVIATIONS USED IN REFER- ENCES IN THE FOOTNOTES I. BOOKS ANSCHUTZ = G. Anschiitz, " Staatsrecht," in Holtzendorffs "Encyklopaedie der Rechtswissenschaft." Ed. VI, 1904. BORNHAK = C. Bornhak, " Preussisches Staatsrecht." Ed. II, 1911. FLEINER = F. Fleiner, " Institutionen des Deutschen Verwaltungs- rechts." 1911. HUE DE GRAIS = Hue de Grais, " Handbuch der Verfassung und Verwaltung." Ed. XX, 1910. LABAND = P. Laband, " Staatsrecht des Deutschen Reichs." Ed. V, 1911. MAYER = Otto Mayer, " Deutsches Verwaltungsrecht." 1895. MEYER = G. Meyer, " Lehrbuch des Deutschen Verwaltungs- rechts." Ed. Ill, 1910. MEYER-ANSCHUTZ = G. Meyer, " Lehrbuch des Deutschen Staats- rechts." Ed. VI, 1905. v. SEYDEL = Max von Seydel, " Staatrecht des Konigreichs Bay- ern." Ed. Ill, 1903. II. LAWS AND COLLECTIONS OF LAWS A. L. R. = Allgemeines Landrecht, 1794; General Prussian Code. B. G. B. = Biirgerliches Gesetzbuch, 1900; Imperial Civil Code. G. O. = Gewerbeordmmg, 1869; Imperial Industrial Code. G. S. = Preussische Gesetzsammlung; official collection of Prus- sian laws since 1806. G. V. G. = Gerichtsverfassungsgesetz, 1877; imperial law consti- tuting the judiciary. xiii XIV ABBREVIATIONS USED IN FOOTNOTES INSTR. = Instruktion ; decree or order. KR. O. = Kreisordnung, Dec. 13, 1872 (G. S. 1872, p. 155), S. S. p. 916. L. G. O. = Landgemeindeordmmg, July 3, 1891 (G. S. 1891, p. 233), S. S. p. 722. L. V. G. = Landesverwaltungsgesetz, July 30, 1883 (G. S. 1883, p. 195), S. S. p. 160. O. = Ordnung; ordinance or enactment. PROV. O. = Provinzialordnung, June 29, 1875 (G. S. 1875, p. 176), S. S. p. 977- R. G. BL. = Gesetzblatt fur das Deutsche Reich; official annual publication of imperial laws. ST. O. = Stadteordnung, May 30, 1853 (G. S. 1853, p. 261), S. S. P- Si?- S. S. = Stier-Somlo, " Verwaltungsgesetze fur Preussen." 1912. ZUST. G. = Zustandigkeitsgesetz, Aug. i, 1883 (G. S. 1883, p. 237), S. S. p. 194. PRINCIPLES OF PRUSSIAN ADMINISTRATION INTRODUCTION THE term " administration " as a function of govern- ment has a twofold sense, according as it is considered from the point of view of its nature or from the point of view of the organs by which it is exercised. Viewed from the former, its material side, administration may be distinguished from the other functions of govern- ment, namely, legislation and adjudication, as follows : If we consider legislation as consisting essentially in the establishment of general rules governing the rela- tions of the members of the state toward each other and toward the government, adjudication on the other hand as the mechanical application of these rules to controversies that arise, administration may be said to consist in the furtherance of the general welfare of state and nation by concrete measures and modes of action. Administration in this sense, then, is the whole of the field of state activity not covered by the concepts legis- lation and adjudication. It therefore comprises the field ordinarily designated as that of the executive branch of government in the theory of the separation 2 i ,'. INTRODUCTION of the powers. But its scope is wider than that indi- cated by the name " execution," for, as we shall see, it includes not only the mere carrying out of legisla- tive enactments, but comprises a large field of inde- pendent action as well. The term " administration," in other words, is in reality wider than the term " execution," though often employed to designate the same thing, namely, the field of state activity which is neither legis- lation or adjudication. For the exercise of the function of administration there is a special branch of government, called the executive or administrative branch, or simply the ad- ministration. This last use of the word to designate the organ of government must not be confused with the word when denoting the function of government just described. According to the theory of the sepa- ration of powers, each branch of government should exercise those functions which by their nature belong to it. So the legislature should concern itself with legislation, the judiciary with adjudication, and the executive with administration. This theory has, however, never been strictly applied, nor could it ever be so applied, in Prussia or in any other state. There is, always, an overlapping or in- tersecting of the spheres of action in the three branches of government. We see the legislature both adjudi- cating and administrating, and the administration both INTRODUCTION 3 legislating and adjudicating, and this leads us to a new meaning of the term ''administration" as a function of government, namely, its formal meaning. Thereby administration means all functions exercised by the administrative organs, irrespective of the nature of those functions. This is the sense in which the function of administration will hereinafter be ordinarily under- stood unless otherwise indicated. Administration, then, is the activity of the adminis- trative branch of government. But the form and extent of this activity is subject to regulation by law, for the legislative branch of government in Prussia is superior to, not merely coordinate with, the other two branches of government. Therefore the administration may never act contrary to the law. Furthermore, as a result of the constitutional designation of the legisla- ture as the proper organ for the enactment of material laws, that is, of measures establishing legal norms or affecting the liberty or property of individuals, the ad- ministration must also act within the law. That is to say, it can impose only such duties, burdens, or obliga- tions on individuals as the legislature has authorized. This is the constitutional principle of "lawful adminis- tration," which is of fundamental importance in deter- mining the legal effect of administrative acts. Subject to these two limitations, namely, that its actions must not be contrary to law and that when affecting liberty 4 INTRODUCTION or property they must be according to the law, the ad- ministration has a field of free initiative and action. So, for example, it has the task of organizing its authori- ties and regulating their activities so far as not specified by law. The whole realm of administrative action falls into five principal branches. These consist in the adminis- tration of foreign affairs, of military affairs, of the judi- cial system, of finances, and of internal affairs. The branch of administration designated as internal affairs, generally termed internal administration, is the field of administrative activity with which this work is meant to deal. Hereafter, therefore, in speaking of administration, that special branch of administration will be had in mind, which is called internal administration, a term whose meaning is now to be more closely examined. Internal administration is the most recent of the five branches of administrative activity. The term "police," which originally denoted all state activities in Germany, as distinct from ecclesiastical functions, came to be used in the seventeenth century to denote what we comprise to-day under the concept of internal administration. This came about through the gradual segregation of foreign, military, and financial affairs and of matters of justice from the general police matters. Police therefore at that time comprised, as does internal INTRODUCTION 5 administration to-day, the totality of state activities not falling within any of the four other branches. There were, however, two kinds of police activity, the so-called security police (Sicherheitspolizei) and the welfare police (Wohlf ahrtspolizei) . The former was intended to preserve the individual from dangers threatening his person and property, the latter to further the public welfare by the establishment of institutions beneficial to the individuals and to society. Subsequently, the term " police" was generally restricted to the former of these two functions ; and in the Prus- sian General Code of 1794 the function of the police was denned to be that of adopting the necessary measures for the maintenance of public quiet, safety, and order and for the averting of dangers threatening the public as a whole or the individual members thereof. This definition, therefore, of the general function of the police, a definition still valid in Prussia to-day, differentiated the terms " internal administration" and " police." The term " police " is consequently a narrower conception to-day than the term " internal administra- tion," for the former constitutes a part of the latter. It does not, however, form a separate and distinct part thereof, but permeates the entire field. Wherever the personal liberty of the individual is limited by means of administrative compulsion, there is an exer- cise of the police power. Every division of internal 6 INTRODUCTION administration has this feature of compulsion and so disposes of a measure of police power for the carrying out of its purposes. To-day, that form of the police power not intended to insure the effectiveness of a given branch of internal administration, but calculated to protect society and the individual against common dangers, is termed security police. The former type, in contradistinction, is called administrative police. 1 Internal administration is not exclusively carried on by the state, but also by local bodies endowed therefor with certain powers of independent local action. Not only do these bodies exercise administrative functions directly for and on behalf of the state in matters of state-wide concern, but they have also a sphere of action in purely local matters where they act on their own behalf, in a large measure free from interference by state authorities. These local bodies are in general public corporations and their jurisdiction has as a rule been granted in comprehensive terms assigning all matters of local concern to their care, unless otherwise specified. Some obligations are imposed by law, but aside from that, such bodies determine each for it- self the measure of their activity within the limits of local action. To insure a measure of self-government 1 Cf. Meyer- Anschutz, 176; also Laband, II, 64, p. 159. Otto Mayer, I, p. i; Anschutz, in Holtzendorff's " Encyklopaedie," 42, p. 6 10. INTRODUCTION 7 in these bodies, a large number of elective officers are provided for, who are then called mediate administra- tive officers, in contrast to the appointive officers of state administration known as immediate officers, dis- tinctions which will be further developed in the discus- sion of the administrative organization. From the concept of administration developed above, we may proceed to consider the meaning of the term " administrative law." We have seen that, with the introduction of the con- stitutional separation of powers, the administration was no longer its own lawmaker, but was bound by deter- minations of the legislature. The acts of the legisla- ture, then, constitute the legal limits within which the administration must move, and the rules that delimit the activity of the administration constitute the branch of public law known as administrative law. These rules are to be found primarily, of course, directly in the legislative acts themselves. Such acts are ex- tremely numerous and difficult to compile, for there has been no codification of this branch of the law. Both imperial laws and Prussian state laws embody these rules and limitations. But legislative enactments, though the chief source, are not the only embodiment of administrative law. The legislature can delegate to the administration itself the power to determine the field of action of its organs. 8 INTRODUCTION This is known as the administrative ordinance power, the legal nature and extent of which will be examined later. The effect of such ordinances is the same, as long as they are unrepealed, as that of laws. That is to say, not only are the lower authorities bound by them, but also the authority itself which passed it, as well as the other branches of the government. In- dividual rights may accrue under such ordinances, if legally valid, as well as under acts of the legislature; and the only difference in legal effect between the two forms of enactments is that the administrative ordi- nances may at any time be altered by the enacting authority itself as well as by the legislature. A third source of administrative law, quite similar to the ordinance power of state administrative authorities, is the ordinance power of the bodies for local adminis- tration, referred to above. These bodies have the power of passing local statutes or by-laws in the exer- cise of the functions assigned to them, and within the legal limits these ordinances also have the force of laws. A more unusual source of administrative law, finally, is to be found in prescriptive or customary law, which may sometimes be the only guide in determining a question of administrative competence. It is apparent, therefore, that a comprehensive systematic presentation of all canons of administrative law is impossible, and that it will be of little use to INTRODUCTION 9 attempt more than a reference to the principal sources. The most important enactments, both legislative and administrative, will be referred to directly, but for a more detailed indication of the references on particular questions, recourse must be had to the books and other literature cited in the work. Special works on Prussian administration and admin- istrative law are rare. Chief among them may be mentioned: Bornhak, " Preussisches Staatsrecht," Ed. n, 1912, Vols. n and m. v. Ronne, "Staatsrecht der preussischen Monarchic," Ed. v, 1899. Hue de Grais, "Handbuch der Verfassung und Verwaltung," Ed. xx, 1910. Bornhak, "Grundriss des Verwaltungsrechts," Ed. m, 1911. Works on German administration as a whole, generally with special reference to Prussia, include among others : Otto Mayer, "Deutsches Verwaltungsrecht," 1895, 2 vols. Georg Meyer, "Lehrbuch des deutschen Verwaltungsrechts," Ed. m, 1910. Fritz Fleiner, " Institutionen des deutschen Verwaltungsrechts," 1911. Ernst v. Meyer, "Verwaltungsrecht " in Holtzendorff's " Encyklo- paedie der Rechtswissenschaft," Ed. vi, 1904. Anschiitz, "Verwaltungsrecht," in "Kultur der Gegenwart," 1906. Loning, "Lehrbuch des Verwaltungsrechts," 1884. Recognized works on German constitutional law, which contain a treatment of administrative law as well, include: 10 INTRODUCTION Laband, "Staatsrecht des deutschen Reichs," Ed. v, 1911. Meyer- Anschiitz, "Lehrbuch des deutschen Staatsrechts," Ed. vi, 1905. Hanel, "Deutsches Staatsrecht," 1892. Zorn, "Staatsrecht des deutschen Reichs," Ed. n, 1895. Arndt, "Staatsrecht des deutschen Reichs," 1901. Among encyclopaedias may be mentioned: Stengel, "Worterbuch des Staats u. Verwaltungsrechts," Ed. n, 1910. v. Bitter, " Handworterbuch der preussischen Verwaltung," Ed. n, 1911. Conrad, Elster, etc., "Handworterbuch der Staatswissenschaften," 1909. There are various collections of the more important laws and other acts relating to the administration; enactments, that are scattered among all the different government publications. One- volume collections are : Stier-Somlo, " Sammlung der Verwaltungsgesetze fur Preussen," 1912. Anschiitz-Dochow, "Organisationsgesetze," Ed. n, 1908. Sartorius, " Sammlung von Reichsgesetzen Staats u. Verwaltungs- rechtlichen Inhalts," 1910. The enactments themselves are to be found in the official collection of laws, in ordinances and ministerial decrees. The collection of laws (Gesetzsammlung) begins with the year 1810 and contains in each volume laws and royal ordinances. The decrees of the central authorities are contained in the various departmental INTRODUCTION II sheets (Ministerialblatter). The federal laws are to be found for the years 1867-1870 in the federal legislative record (Bundesgesetzblatt) and beginning in 1871 in the imperial legislative record (Reichsgesetzblatt) . Ordi- nances of the superior authorities in the empire are con- tained in the so-called central sheet (Centralblatt), both for the Federation and for the Empire. The decisions of the supreme administrative court of Prussia have appeared in official reports since 1877. Digests of the same have been prepared by Kunze u. Kantz, " Rechtsgrundsatze des koniglich preussischen Oberverwaltungsgerichts . ' ' v. Kamptz, " Rechtssprechung des preussischen Oberverwaltungs- gerichts." Finally there may be mentioned among the numerous year books and periodicals: " Archiv fur offentliches Recht." " Preussisches Verwaltungsblatt." "Preussische Jahrbucher." CHAPTER I HISTORICAL SURVEY 1 The Early Feudal State AT the end of the great migratory movement of Asiatic and European races during the fifth and sixth centuries after Christ, there lived on the right bank of the River Elbe, in the territories formerly inhabited by the Saxons, the eastern peoples known as the Slavs. These peoples were in the tenth century driven out of their lands by the Saxon Duke Henry I, King of the German Realm, and by his son, Emperor Otto I. But under the grandson of the latter, Otto III, these terri- tories were recaptured by the Slavs, who remained there undisturbed until another Saxon, Emperor Lothar, successfully undertook, in the first half of the twelfth century, to reconquer the lost territories. In this under- taking, he was effectively aided by the Askanian Count, Albrecht the Bear, who, in return for his services, was in 1134 enfeoffed with the territory called the North- 1 Cf. E. v. Meyer, " Verwaltungsrecht " in Holtzendorff 's " Encyklo- paedie der Rechtswissenschaft " ; Loening, " Verwaltungsrecht " ; Born- hak, " Grundriss des Verwaltungsrechts," Ch. I. 13 14 PRINCIPLES OF PRUSSIAN ADMINISTRATION march, on the west bank of the Elbe. With this terri- tory were soon united certain of the lands across the Elbe to form the Margraviate of Brandenburg, with Albrecht as first Margrave. This domain, the embryo of the later Prussian state, comprised in 1170, at the death of Albrecht, about a third of the territory included within the present prov- ince of Brandenburg. Left almost without inhabitants after the expulsion of the Slavs, the new margraviate was sorely in need of a population, and this the ruler undertook to supply through military feudal coloniza- tion. The ruler or overlord, himself holding the lands in feudal tenure from the Emperor, enfeoffed numerous knights with large manors in military tenure ; that is, on the condition of their rendering certain military aid. Below them, for the cultivation of the soil, free peasants were colonized under the direction of a great peasant, who received a subordinate hereditary office, with the lowest judicial jurisdiction, as appurtenant to his estate, which he also held on condition of military service. The common peasants in their turn held property only in leasehold, on condition of paying ground rents and rendering the lower military services. Cities arose like- wise, through systematic colonization by special organ- izers, who received in return the office of mayor. The cities were enclosed by a wall and enjoyed special trade privileges, such as the market right. Thirdly, the HISTORICAL SURVEY 15 church appeared as landowner and found it advantageous to found cities and villages. The government of the margraviate as a whole was carried on by the ruler as military commander, with the help of a chosen body of knights at his court, which moved about from place to place. As scribe, he em- ployed a notary or chancellor and constituted a judicial court of his trusted knights. For purposes of adminis- tration, he divided the territory into bailiwicks (Vogt- eien), at the head of each of which was 'an overseer, appointed by him and removable at his pleasure. This overseer exercised both military powers and superior judicial jurisdiction and was charged with the preserva- tion of the peace and the collection of the margravial revenues from his bailiwick. Gradually, however, the strict military organization began to disintegrate. The ruler himself disregarded more and more his feudal relation to the Emperor, and with the fall of the Hohenstaufens in 1268, followed by the disappearance of all central power for a period of years in the German Empire, he regarded his position wholly as an hereditary family estate. The formerly indivisible estates were now divided among several sons and in the territory of the former ruler arose numerous courts in the place of one. But the income from the domains had become insufficient to meet the multiplied expenses, and the feudal overlord found himself in 1 6 PRINCIPLES OF PRUSSIAN ADMINISTRATION financial straits. Not vested with the right to impose taxes, he was compelled to look to his feudal tenants for aid and began to sell certain of his sovereign and feudal rights. The vassals of the overlord were not slow to take advantage of his distress, and following the example he had set, they proceeded to acquire more and more free- dom and privileges over against their feudal lord. The church territories, from the first free from interference by the ruler, constituted another break in his power. Then the knights of the manors gradually acquired the feudal rights of the overlord in the villages near by, as well as over the peasants' lands and persons, and took over the functions of the overseers in matters of police and justice, thereby creating a patrimonial administra- tion throughout most of the rural territory. The cities, moreover, through their councils, which had displaced the mayor, also acquired many of the feudal rights of the overlord, within their limits and in adjoining villages. Hence the overlord, once both sovereign and adminis- trator of the whole territory, now remained the local authority only in the lands not included in any of the manorial estates, in the so-called domains, which were administered by his wardens (Amtmann). The ruler, furthermore, had become dependent on his former tenants, not only for financial support, but also for cooperation in all governmental matters which extended HISTORICAL SURVEY 17 beyond his private domains. The local magistrates, viz. prelates, knights and representatives of the cities, had already united during the thirteenth century in the territorial diets (Landstande) , with which the ruler had henceforth to deal as with coparticipants in govern- mental affairs. Repeated dynastic changes, following the failure of the Askanian line in 1320, still further weakened the power of the Margrave, affording the landed classes, in city and country, opportunity to usurp what they had not already rightfully acquired ; until, at the end of the fourteenth century, the powers of the Margrave of Brandenburg, elevated in 1356 to the dignity of an Elector by the Golden Bull of Karl IV, had been largely dissipated among the innumerable temporal and spiritual powers within the state. The progress of state disorganization and impotency was temporarily checked in 1415 by the enfoeffment of Count Frederick of Nlirnberg, of the Frankish line of Hohenzollerns, with the March Brandenburg. This Margrave Frederick I, the progenitor of the still reign- ing Prussian house, was able to restore many of the lost margravial rights and privileges, by means of his power as Frankish count, and not only doubled the territory of the March, but, in conjunction with the cities, re- duced the knights to their former position as feudal vas- sals. His successor, Frederick II, acquired additional territory, and, with the help of his knights, humbled 1 8 PRINCIPLES OF PRUSSIAN ADMINISTRATION the cities in their turn. Thus the central authority regained the superiority over the centrifugal forces within the state. In 1473, by Act of the Margrave Albrecht Achilles, the Prankish lands of the Hohenzollerns were sepa- rated from the March, Brandenburg was declared in- divisible, and the succession fixed according to the rule of primogeniture. The landed classes were still further reduced in influence by the adoption of mer- cenary troops to constitute the backbone of the army, in place of the former feudal militia; by the in- troduction of Roman law, which replaced the landed gentry in justice and administration by learned profes- sionals ; and by the financial independence of the ruler, resulting from the large increase in his domains through the secularizing of Catholic Church lands. Not only did the Margrave acquire large additions to his private lands through the abolition of the Catholic sees in 1539, but, as head of the new confession, he stepped into the place of power and influence occupied by the Catholic Church. All circumstances were thus rapidly making for the continued centralization of power, when suddenly an unexpected event disturbed the entire development. The discovery of America, with its unknown quantities of precious metals, caused a fall in the value of the medium of exchange, which left the ruler impoverished. HISTORICAL SURVEY 1 9 The income from his domains was greatly reduced, he still had no general authority to lay taxes, and again he found himself compelled to turn to the territorial diets for aid. Again the representatives of the landed classes demanded extensive privileges for their assistance. They founded their own territorial exchequer, based on beer taxes and hoof taxes, out of which they turned over to the ruler such sums as were needed for the government. The landed classes in the country were enabled to suppress the lower strata practically to the position of serfs. In the cities, the patrician class and the gilds [usurped all important rights and privileges, and the ruling classes in city and country alike as- sumed, through their common diets, the role of coun- sellors to the sovereign in all matters relating to the welfare of the realm. Their influence was further in- creased by the acquisition of control over the state church. The ruler himself had his own administrative organi- zation indeed, but was enabled to carry on the busi- ness of government only by the contracting of debts, which were then assumed by the state diets. For the administration of his own domains, he had a large set of officials; a separate court of justice; and, by the end of the sixteenth century, a regularly organized council of nobles and law doctors, for the governmental business. This body of councillors especially offended 20 PRINCIPLES OF PRUSSIAN ADMINISTRATION the privileged classes, not only because frequently made up in considerable part of foreigners, but also, and chiefly, because it denoted the beginnings of a system of professional officials, by means of which the Mar- grave would again be enabled to assert his authority as head of the state. There existed, then, at this time a complete dualism within the realm. The State in the Seventeenth and Eighteenth Centuries The beginning of a new period, in which the pendu- lum of power again swung back from the landed and moneyed classes to the central government, may be said to have begun in 1604, with the organization of the privy council by the Elector Joachim Frederick. This council, composed of nine professional officials, generally considered the earliest prototype of Prussian central administrative organs, was necessitated by the new external relations into which the March was being drawn. Expectations of succession to the territories of Cleves and Prussia, as well as other diplomatic com- plications, brought Brandenburg out of its provincial isolation and quiet on to the stage of international affairs, a development which required an effective body of executive counsellors. The new privy council, charged with the conduct of all branches of adminis- tration, save justice and church affairs, was indeed con- HISTORICAL SURVEY 21 sciously modelled on similar institutions in other states, - Saxony, Austria and France, but was, at the same time, the next logical step in the process of differ- entiation in Brandenburg, by which, out of an unor- ganized mass of officials at the Margrave's court, had developed special bodies for the administration of the judicial and financial affairs of the ruler. The establishment of the permanent__council was, at one and the same time, a distinct improvement in ad- ministrative organization and a blow to the anarchistic class organization within the state, especially as it was soon followed by the acquisition of new territories, equal in size to the March itself, which were connected therewith in a personal union under Elector John Sigis- mund. In the west, in the valley of the Rhine and its tributaries, he succeeded in 1609 to Cleves, the March and Ravensberg, and at an equal distance to the east, in 1618, to the feudal duchy of Prussia, then vassal to Poland. The Peace of Westphalia, 1648, increased the territories of the Margrave of Brandenburg still more, by the addition of Further Pomerania, thereby bridg- ing part of the gap which separated Prussia and Bran- denburg, and of various bishoprics and archbishop- rics. These extensive, but widely separated, territories, united in a mere personal union, were indeed a large addition to the outward power and influence of the 22 PRINCIPLES OF PRUSSIAN ADMINISTRATION Margrave as ruler, but they were by no means free from foes within and enemies without. The ambitious privileged classes, as strong in the new territories as in the old, no less than jealous external powers, threatened the security of the state. It was the task that confronted Frederick William, the Great Elector, \ who succeeded to the government in 1640, to unite and weld the territories and their inhabitants into a | single state. The history of the transformation of the Electorate of Brandenburg and its territorial connections into a unified Prussian state, during the next half century, is essentially a history of military and administrative development, for it was through the efficient adminis- trative and military organization of his territories that the Great Elector subjected and united the discordant elements in his realm and established the absolute monarchy. The Thirty Years' War, with all its devastation and bloodshed, ruinous as it had been for all countries in- volved, had not been without its decided advantages for the adolescent Prussian state. Not merely had it greatly increased the territorial extension of the realm^ but it had taught the lesson to ruler and subjects alike, that a strong standing army was necessary to the main-K tenance of any governmental power. Even the hostile class elements within the state obeyed the law of self- HISTORICAL SURVEY 23 preservation and laid taxes, first temporarily and then permanently, for the support of their ruler's army. Both in the March Brandenburg itself and in the new territories as well, the ruler had now gained a permanent right to exact moneys for his army. This army, it must be noted, was established as the personal force of the Elector of Brandenburg, not yet as the organ of the united territories. A competent administrative organ- ization for military purposes had become necessary, however, throughout the entire territories, and this proved to be the entering wedge for dispossessing the ruling classes of important functions. At this point, the administrative history of Brandenburg and Prussia branches off from that of the other German states. At the head of the military administration was placed a commissary general (Generalkriegskommissar). Under his direction stood superior commissaries in the various territorial divisions and the commissaries in the smaller circles, whose functions included the entire commissary administration within their districts. Most important of all their duties was that of receiving they proceeds of the military taxes raised by the local diets. In the new territories, as well as in the March, the territorial administration was managed by the so-called " governments " consisting of representatives of the S privileged classes in city and country, practically in- dependent of and generally in opposition to the ruler. 24 PRINCIPLES OF PRUSSIAN ADMINISTRATION In the old-time "circles" of the rural areas, circle diets, composed of representatives of the patrimonial estates, managed all local administration in their own author- ity, especially the apportionment and collection of taxes. As administrative head, they chose a knight for the unsalaried position of circle director, called in Branden- burg, after 1702, "Landrat." This officer was there- fore a distinctly local magistrate, representing the landed interests alone. The commissaries in the province, energetic cham- pions of central power, soon found it desirable them- selves to interfere in the business of raising the military taxes, which indeed existed only for the benefit of the ruler's army, and through a period of continued juris- dictional conflicts, succeeded in assuming both tax ad- ministration and the attributive judicial jurisdiction for themselves. In the rural circles, the state commissary depart- ments did not crowd out the local officials, but were gradually put into their hands for management. The local circle director (Landrat) was intrusted with the management of the central tax administration and thereby completely changed his character from that of a local class official, hostile to the ruler, to a royal tax official for the circle. He still retained his former desig- nation and still also represented the interests and feel- ings of his class ; but at the same time he took his place HISTORICAL SURVEY 25 in the bottom rank of the hierarchy of state adminis- trative officials. The king as a rule appointed to this office a knight of the circle upon nomination of the circle diets, and thereby the Landrat acquired the dual nature which long continued to be his distinctive char- acter. In the cities, moreover, state travelling com- missaries controlled the military tax administration for the ruler there. The next step in the assumption of jurisdiction and powers by the representatives of the central military authority was a natural one. If the chief purpose of the system, namely, to increase the military efficiency of the state, was to be most effectively served, the in- come from the taxes needed to be made a maximum. This could be done only through furthering the economic welfare of the persons taxed and, with this in view, the zealous commissaries, in country and city alike, ab- sorbed, \in the face of the violent opposition of the ruling classes, We branch of internal administration after another. In his own estates and domains, also, the ruler, un- hampered there by local opposition, carried on the process of centralization and unification. After the model of the central managerial chamber in Branden- burg (Amtkammer), a collegial authority for the finan- cial administration of his possessions was organized in each territory, under the direction of a special com- 26 PRINCIPLES OF PRUSSIAN ADMINISTRATION mittee of chamber counsellors, later called the privy court chamber. All these authorities, military and financial, and with them the privy council, were still, however, in their essential nature Brandenburg authorities, though em- ployed in all parts of the Elector's territories. But now the centre of authority and importance had grad- ually shifted from Brandenburg to Prussia, and this for several reasons. Not only had the geographical centre of the ruler's possessions moved farther to the northeast, through the acquisition of Pomerania, but Prussia, a powerful duchy while still vassal to Poland, had in 1660 become a sovereign state, under the rule of Frederick William, Elector of Brandenburg. While, moreover, Frederick William's rule in Brandenburg and his other possessions was still theoretically subject to the sovereignty of the German Emperor, enfeebled though .the latter was through the Thirty Years' War, Prussia, a wholly sovereign duchy, was not even in theory a part of the Empire. As Duke of Prussia, therefore, the common sovereign could rightfully assert dignities and powers which, as Margrave of Brandenburg, he could less easily maintain. Thus was it possible that Frederick III, the otherwise far inferior successor of the Great Elector, could in 1701 proclaim himself king, not of Brandenburg indeed, but of Prussia. This dignity of the Prussian ruler, HISTORICAL SURVEY 27 combined with the importance of the former duchy itself, completed the change of the united territories from a Brandenburgish state to a Prussian state, or rather to Prussian states. Royal Prussian authorities were now the bearers of the power of the state, without and within. The united territories were externally represented by royal Prussian ministers, and internally administered by royal Prussian authorities, and the combined territories bore the name of the Royal Prus- sian States. But in the organization of internal administration, Frederick III, after 1701 King Frederick I of Prussia, made little progress. Collegial bodies had already re- placed the single commissaries in the provinces and the central commissary officer was replaced by the com- missariat general, a collegial organ that established the organic unity of military administration, tax adminis- tration and the major part of internal administration. The administration of justice, which, so far as it was not attributive to the administrative activities of the commissaries, had been left to the provincial "govern- ments," could now, through gradual emancipation from the appellate jurisdiction of the Empire, be united under a central court of superior jurisdiction. The privy council had undergone a corresponding transformation. At first it had been the highest ad- ministrative body in all matters except those of church 28 PRINCIPLES OF PRUSSIAN ADMINISTRATION and justice. It was not divided into departments, but consulted and decided as a body under the presidency of the Elector himself. With the advent of the second king of Prussia, Frederick William I, in 1713, began a reign of more than a quarter of a century of most significant development. Comparatively little indeed could be shown in the way of territorial expansion, though the acquisition of Prus- sian Nearer Pomerania, in 1720, was of importance. But in the field of internal administration and develop- ment and of military organization there were laid in this reign the foundations on which alone could rest the remarkable structure to be reared by his even more famous son, Frederick the Great, and by the later Hohenzollerns. The reforms of the new king extended over all three of the chief divisions of the state activity, military organization, management of the finances, and internal administration. The dignity, influence, and power of the royal office, as yet unacknowledged by many foreign states, depended first of all on an effective army to pro- tect the still widely separated territories. If Frederick I had failed to develop the military efficiency of the country to the utmost, Frederick William made this his chief task. He divided the country into military cantons, in each of which a regiment was to be re- cruited and every able-bodied man within the canton HISTORICAL SURVEY 2Q was liable to service. The nobility, indeed, was legally exempt, but, as a matter of fact, constituted the corps of officers. Sons of capitalists of a certain fortune were exempted in the interests of industry. But the popu- lation, though increased by colonization of foreign refugees, was not sufficient for the needs of the army, and a large part of the troops were still foreign mer- cenaries. This military regime was, of course, very expensive and required a new system of finances which should yield a larger income. The knights, who had so far held their estates tax free, were now subjected to a small ground tax. The municipal excise was extended to all cities of the realm and, in the country, the quotas of the local circles were replaced by definite ground taxes. The peasant bore the heaviest taxes, the mu- nicipal citizen somewhat less, and the landed gentry least of all. As highest controlling authority was estab- lished a central chamber of accounts. In the domain of internal administration, constant friction had existed between various classes of adminis- trative officers. The extremely active commissaries were in continued jurisdictional conflicts with the judicial bodies, on the one hand, and with the domain chambers, on the other. The first class of disputes was eliminated by various special orders, but the latter difficulties needed for their solution the comprehensive 30 PRINCIPLES OF PRUSSIAN ADMINISTRATION measures of 1723, which united the two conflicting classes of officials. The change began with the combination of the cen- tral authorities for domain administration with that of the commissariat system into a supreme directorate general for war and domains, generally called direc- torate general. This was a collegial body presided over by the king himself and consisting of four depart- ments, at the head of each of which stood a minister. Each minister had a number of expository counsellors with whom he prepared reports for the directorate as a whole, which alone was competent to adopt measures. This directorate general controlled the entire regula- tion of financial and internal administration, and the various individual branches were divided among the departments for investigation and report, partly ac- cording to provinces, partly according to subject matter. Foreign affairs were put into the hands of a so-called cabinet ministry, instead of being managed by two members of the privy council, as under the Great Elector and his successors. Matters of justice, church and education, which, as has been seen, were left to the old "governments" in the provinces when the commissaries assumed all other administrative functions, had also been put under the central authority of special members of the privy HISTORICAL SURVEY 3! council. These councillors of justice, four in number, now constituted the state ministry of justice. By these changes, the old privy council, now called the privy ministry of state, had altered its character as well as its name. Its functions were now exercised by the three special central authorities, the directorate general, the cabinet ministry, and the ministry of justice, and it had come to signify merely the totality of all the various ministers. It still existed and met as a legal body, indeed, acted in cases of administrative discipline and deliberated on matters submitted by the king or by individual ministers, but it no longer played a part in the preparation of legislation. The union of the highest domain and commissary authorities into the directorate general was soon fol- lowed by the establishment of similar organs in the provinces called war and domain chambers, collegial bodies for the entire internal administration, including finances. By their establishment was solved the con- flict between the two classes of officials which had materially disturbed the unity of the administrative system. Territorial divisions, called chamber depart- ments, were constituted for administrative purposes, corresponding in general with the ancient divisions and hence of greatly varying size. At the head of each chamber stood a president sometimes called su- perior president when head of several chambers and 32 PRINCIPLES OF PRUSSIAN ADMINISTRATION associated with him one or more directors and a num- ber of counsellors and judicial officers, all of whom acted as a body, without division into committees. In the administration of the rural areas, the circle director, as organ of the commissariats, acquired juris- diction over the domains now generally administered by lessees which had by this time, for the most part, been included in the circles. Thereby was completed, down through the lowest instance, the union of com- missariat and domain administration. Strictly judicial matters were put into the hands of judicial officers; but all matters of police and finance administration in the country were in the hands of the circle director, this dual representative of the landed classes over against the king, on the one hand, and the king over against the local ruling classes, on the other hand. The king had raised his bureaucratic structure on the basis of the established class divisions of society. The cities, moreover, had shown the utmost need of reform since the time when state officials first made their entrance there with the introduction of the excise in the seventeenth century. The patrician classes and the gilds had run the cities as closed corporations for private gain, at the expense of the non-burgesses. This was now altered, and the formerly all-powerful and in- dependent board (Magistrat) remained, indeed, but was transformed into a mere organ of the state administra- HISTORICAL SURVEY 33 tion under the supervision of the tax commissioners, travelling commissioners who came at least twice a year to each city. So while in the country there still remained a large element of local autonomy, in the cities it had practically been displaced by direct state administration. The agents of the state government were still very diligent in protecting the lower classes in city and country with a view to furthering their economic wel- fare. The aim of the state herein was to increase their taxability to meet the enormous expenses of the army, which, in turn, was requisite to establish and maintain the authority and power of the Prussian king as a ruler among European nations. f 'In 1740, Frederick William I was succeeded by his son, Frederick II, called the Great. The efficient organi- zation of military and internal affairs developed under his father, answered the needs of Frederick's rule as well, and so there were undertaken but few changes of an administrative nature. The ruling class in the state was the nobility, which filled all offices in both the civil administration and in the army. The king's energy and thought were chiefly directed toward the terri- torial aggrandizement of his state and the increase of population, which he recognized as prime necessities for the development of the same. An efficient army and well-filled coffers were the immediate ends he strove for. His activities in the field of finance reform and of 34 PRINCIPLES OF PRUSSIAN ADMINISTRATION internal development were directed, consciously and avowedly, toward increasing the power of the state within, in order to make possible a policy of expansion without. In the first year of his reign, he marched an army into Silesia and compelled Maria Theresa, in 1742, to surrender upper and lower Silesia. He based his claim to conquest on an ancient treaty of inheritance between Brandenburg and the ruler of certain of the Silesian duchies. He was not allowed, however, to enjoy his conquests long in peace and not until after a series of wars, terminating with the end of the Seven Years' War in 1763, did he retain an undisputed hold on the Silesian territories. East Frisia had meanwhile been added; and, in 1772, he acquired, by the first partition of Poland, the extensive territories of West Prussia, and adjacent districts, uniting thereby old Prussia with the body of his territories. These acquisitions, along with some other minor additions, had increased his territories by more than one-half ; and this increase, together with Frederick's fame as a general, had brought Prussia into the rank of a world power. The continual wars, however, had been a severe drain on the resources of the nation ; and, in the inter- vals of peace, Frederick bent all energies toward further- ing the prosperity of the country. Industry and trade were fostered, internal improvements were undertaken HISTORICAL SURVEY 35 on a large scale and colonization was encouraged. But his military organization and his economic legislation were, like those of his father, directed toward the in- crease of the power of the state. Even his reforms in the administration of justice, whereby royal participa- tion in judicial controversies was discontinued, were restricted to civil suits, because security of justice in those matters was necessary for the growth of business, which he desired so much as a sound financial basis for the state. But the gulf between the state and the mass of the people had become more noticeable. Frederick looked upon his nobility alone as the proper source for his officials, civil and military, and in place of the antago- nism between the nobles and the crown, that still existed under Frederick William I, there had developed the greatest confidence. Frederick regarded the nobility as the protectors and preservers of the state, and valued and favored them accordingly. The burgesses did their part in the maintenance of the state by contributing the major part of the needed revenue, while the peasants constituted the body of the army. For the proper fulfilling of these functions the lower classes were also accorded a large measure of protection. Frederick's government was in the highest measure autocratic. He added five new departments to the existing four in the directorate general, with a minister 36 PRINCIPLES OF PRUSSIAN ADMINISTRATION for each. But actually Frederick was his own minister in all important matters. His so-called ministers and their counsellors were, in reality, secretaries and clerks, who were rarely asked for advice and who had to yield absolute obedience to his wishes. Opposition, or vari- ance from his expressed opinions was not countenanced. He did not himself appear in the meetings of the coun- cil, but received reports of the proceedings through his ministers of the cabinet and then made his own deci- sions. The existing administrative organization was extended to the new territories. But the organization of the state, efficient as it had proved under Frederick II and his predecessor, Frederick William I, nevertheless contained elements of weakness, especially for the enlarged world power which Prussia had now come to be. The cumbersome collegial or- ganization of administrative authorities and the now impractical division of business, partly according to provinces, partly according to subject matter, could con- tinue to do the work of the state only so long as an individual of Frederick's personality and ability stood as the guiding spirit at the head. Unfortunately for Prussia, when Frederick the Great was succeeded in 1786 by his nephew, Frederick William II, the direction of affairs fell to a man of inferior caliber. He had neither the capacity nor the personality necessary to direct the government of the Prussian state, and the germs of dis- HISTORICAL SURVEY 37 integration which were smothered under the dominat- ing personality of Frederick II now began their destruc- tive work. The army degenerated, the central adminis- trative authorities, divided into independent ministries, were filled with a spirit of jealousy and antagonism, and the king, instead of ruling through his ministers, was ruled by them. Still further acquisitions of land in the East, resulting from the second and third partitions of Poland, greatly increased the difficulties of administra- tion and emphasized the need of a different plan of government. 1 ^ When Frederick William II was succeeded, eleven years later, by his son, Frederick William III, the need for a thoroughgoing reform of the state, in its social, economic, and political aspects, had become apparent. The new king, realizing in a measure the weaknesses in the state, attempted to remedy them, and it is to be noted that many of the ideas advanced in the first years of his reign in fact materialized in reforms at a later time. But he lacked the initiative and firmness requisite to introduce these far-reaching innovations, and not until after the humiliation of Prussia by Napo- 1 Of considerable significance was the enactment of the General Code (Allgemeines Landrecht) in 1 794, which comprised also the administrative law of that time. Of especial interest is the definition of the function of the police in 10 of Part II, Title 17, a definition that is still in effect to-day, through adjudication by the Prussian Supreme Administrative Court. Cf. p. 160, n. 2, 3. 38 PRINCIPLES OF PRUSSIAN ADMINISTRATION leon in 1807 was the reform programme by then universally conceded to be a necessity actually begun. From 1807 io l8 7 2 - The Beginning of the Latest Reform By the Peace of Tilsit, in 1807, Prussia lost over half of her territories and population. French troops were to remain in Prussia until the war indemnity of indeterminable amount was paid and Prussian mili- tary forces were to be limited to a standing army of forty- two thousand troops. These were the difficult circumstances under which a reorganization of the state had to be begun, through which new life was to be infused into the debilitated organism, which had gone to pieces under the strain of the Napoleonic Wars. The credit for the developments which now marked the beginning of a new period in Prussian administrative history was due in the largest measure to two states- men, Baron von Stein and Count Hardenberg. Baron von Stein, whose efforts were more exclusively centred on the problems of administrative reform, entered the Prussian administrative service under Frederick the Great. Through many years of experience he had come to know the system in all thoroughness, its quali- ties and its defects, and had early seen the need of extensive reforms. HISTORICAL SURVEY 39 Before the outbreak of the war with Napoleon, in October, 1806, Stein was appointed minister of finance. He immediately submitted a memorial denouncing the defects of the cabinet administration and demanding a reorganized council of state standing above the indi- vidual ministers. His further demands for the dis- missal of the king's chief adviser, Beyme, and the aboli- tion of the cabinet system, led to a conflict with the king, resulting in Stein's dismissal, in January, 1807. While thus ungraciously relieved of his position, Stein still busied himself with the administrative problems of the state, and in June, 1807, issued his Nassauer Memo- rial, setting forth in large part his reform programme, based on a reorganization of the administrative au- thorities and a direct participation by the people in the affairs of government. After the Peace of Tilsit, Stein was recalled by the king and intrusted with the entire direction of the administration in the defeated and dis- organized state. His ideas were again developed in a report in November, 1807, and in an order of a year later, signed by the king, but never published. On the day this order was signed, however, Stein was again dismissed, this time upon demand of Napoleon, whose spies captured a letter written by Stein, urging a revolt against the French. As a result of Stein's second dismissal, in November, 1808, he was unable himself to carry out all his pro- 40 PRINCIPLES OF PRUSSIAN ADMINISTRATION posed reforms, but they furnished the basis for most of the changes made by his successors. But two meas- ures of great importance were put into effect still during his ministry. In October, 1807, was issued an edict by which the hereditary serfdom of the peasant was abolished and the acquisition of the manorial estates no longer restricted to the nobility. Thereby the first steps in the needed social and economic reforms were taken. Even more significant was the City Government Act of November 19, 1808, which established the principles that were to constitute the basis of municipal adminis- tration in Germany. The cities were deprived of autonomy in judicial and police administration, matters now regarded as strictly state functions, which could however, in the case of police matters, be delegated to the municipal executive organs. The right of citizen- ship was freed of dependence on the trade gilds and was greatly extended. The electoral franchise was granted all citizens with a certain minimum of realty or of net income, and these elected the city council from among the property-owning citizens. The council elected the executive organ, the Magistrat, which carried out the council's decisions. Thereby was introduced the dualistic element into city government. Central control had almost disappeared. His plan, therefore, rested on the idea of autonomous local government, HISTORICAL SURVEY 41 carried on by the body of the citizens as a whole, a democratic principle quite opposed to the basis of the state government in general, which was still a bureau- cratic absolute monarchy. This was a great contrast to the oligarchic dependent city government of the last century, a change quite in keeping with the democratic ideas at the basis of the French Revolution, which were not without their influence on German political thought. It was shortly after putting this important enactment into force, that Stein was compelled to retire for the second time. He was followed by the Altenstein-Dohna ministry, which continued the reform in his spirit and enacted many of his proposals, with few important alterations. The order of December 16, 1808, abolished the old council of state, with its three divisions, and numerous independent provincial ministries, as also the cabinet in its existing form. Stein's idea of a collegiate council standing between the ministers and the king was not carried out, but the plan of establishing the five chief ministries of the interior, of finances, of foreign affairs, of war and of justice as unrelated sep- arate departments, was adopted. Below the central administrators and acting as their directing agents for the territorial divisions called provinces were to be created the offices of superior presidents. This was the only real addition to Stein's programme and was of short duration, for the superior presidents soon proved 42 PRINCIPLES OF PRUSSIAN ADMINISTRATION to be ineffective in their capacity as simple supervisory officials. By the act of December 26, 1808, also prepared by Stein before his retirement, the existing war and domain chambers in each department were rechristened "gov- ernments," and constituted on a committee plan, ac- cording to which each committee was given wide powers of independent action. The "government" needed to act as a whole only in exceptional cases. Stein's cherished scheme of drawing non-professional un- salaried laymen into state administrative service was here carried out by adding to each "government" nine lay representatives of the class diets. But this attempt proved unworkable in the only province in which it actually went into effect and was soon discontinued. The "government" was the highest administrative authority for the department and embodied the totality of administrative functions. The remaining judicial functions of the former chambers were taken away and were intrusted to the superior courts, now called pro- vincial courts. The "governments" had large autono- mous powers and only a certain limited class of affairs needed to be referred to the ministry. Stein's plans for administrative reform in the rural circles, the subdivisions of the departments, were not carried out by his successors, though his ideas were to a considerable extent enacted much later in the Circle HISTORICAL SURVEY 43 Government Act of 1872. His fundamental idea was to sever the still continuing connection between the exercise of the local police powers and the possession of the manorial estates. The rural communes were left with their existing organization, dating back into feudal times, consisting of the communal council and the com- munal executive. The former consisted of peasants, now, however, freemen, and the latter appointed by the owner of the manor. The need for reform in this field was not so strongly felt, for while the functions of the commune were still almost wholly economic in their nature, the existing organization could, with few altera- tions, still also answer the purposes of the growing field of public activity. Moreover, the opposition of the landed gentry to a departure from the old patri- monial system in the rural districts presented a too powerful obstacle to permit of important changes at this time. In June, 1810, the minister of finances, von Al ten- stein, was succeeded by Count Hardenberg, as prime minister, who directed his efforts towards social and economic reforms. Hardenberg, like Stein, had seen long administrative service in the government of Prussia before her humiliation by Napoleon. For purposes of his reform ideas, a new principle of administration was thought desirable. Though an ardent champion of the rights and liberties of the individual, as announced in 44 PRINCIPLES OF PRUSSIAN ADMINISTRATION the principles of the French Revolution, Hardenberg had no use for the principle of local self -administration. His ideal was the French system of extreme adminis- trative centralization. His fundamental views had pre- viously been expressed in the so-called Rigaer Memorial, in September, 1807. An act of October 27, 1810, created for him the new and powerful office of chancellor of state and established the five ministries provisionally organized in 1808. He himself assumed direction of both the ministries of finance and of interior affairs. He purposed an entire change of military organization on the Napoleonic model, but these attempts did not materialize, owing to the almost universal opposition. An edict of July 30, 1812, went so far as to change for a time the circles into subprefectures, and to establish a military gen- darmerie as executive aid for the administration. The proposed council of state as advisory body was for the present postponed. Meanwhile, his attempted tax reforms, based on the idea of equality of taxation, had aroused the most violent opposition, which was allayed only by the help of a convention of influential men. In November, 1810, industrial freedom was introduced. Of prime impor- tance was an edict of 1811. By this act, a commission was constituted to terminate the economic dependence of the peasants, by giving them, in return for their HISTORICAL SURVEY 45 mited right of property in the lands they cultivated, the full and free fee simple in a part of them. Thereby important advance was made towards the increased economic welfare of a large portion of the population. In March, 1813, war was declared against Napoleon, and the entire energy of the state was united in one desperate and finally successful effort to throw off the foreign yoke. Further reforms in administration were then, of course, out of the question. After the Congress of Vienna, following Napoleon's downfall, Prussia again found herself in possession of a greatly enlarged and still considerably scattered territory, partly lands which had belonged to her before the Peace of Tilsit, partly wholly new possessions. These territorial alterations again demanded a powerful unifying process to fuse the state into one organic whole. The spirit of reaction against all liberal ideas follow- ing the Napoleonic defeat, prevented the carrying out in Prussia of the culminating ideas in the reform plans of both Stein and Hardenberg, viz., a national repre- sentative body. But the next thirty years witnessed a period of great legislative activity in Prussia, in the domain of administrative organization, with a view to accomplishing the needed unification of the altered state. In the central organization, the repeatedly projected council of state was finally really brought into being 46 PRINCIPLES OF PRUSSIAN ADMINISTRATION by order of March 20, 1817, in essentially the same form as it is found to-day, that is, as an advisory, not executive, collegial body. The council, presided over by the chancellor, was to contain three classes of mem- bers, viz., the royal princes over eighteen years of age, the ministry and a specified list of other high officials and such additional officials as might be specially ap- pointed by the king. It acted either as a body or through subdivisions, corresponding generally to the ministries. Its chief function was to consider and report on all legislation before its submission for royal approval. Furthermore, it had jurisdiction over dis- putes concerning the spheres of the respective ministries and over certain other named classes of controversies. It appeared, therefore, as a body of considerable dignity. * Sometimes, indeed, special commissions were employed for working out the desired laws, but the most im- portant legislation of the next generation was submitted to the council for consideration and revision. It con- stituted a sort of parliament of officials, wherein the combined intelligence and experience of the Prussian officialdom was concentrated on the problems of legis- lation. In 1817, clerical, educational and medical mat- ters were withdrawn from the ministry of the interior and put into the hands of a special new ministry ; and in 1819 a new ministry was created for the affairs of the HISTORICAL SURVEY 47 court and the royal household. In 1822, the important office of chancellor of state disappeared on the death of Hardenberg, its only incumbent. Important changes occurred in the subordinate ad- ministrative organs as well. By royal order of April 30, 1815, the entire territory was divided anew into adminis- trative subdivisions called provinces, ten in number, and each province into two or more districts, twenty- five in all. For military purposes, the whole state was divided into five military departments. The number of provinces was later reduced to eight, by the union of East and West Prussia into one province, and of Cleve- berg and the Lower Rhine Province into the Rhine Province. At the head of each province was placed a province president (Oberprasident) whose duties were minutely defined by a royal instruction of December 31, 1825. He was charged with various administrative functions and exercised a strict control over the entire administra- tion in the province, besides acting as chairman of the " government" in the district in which he resided. Special provincial collegial authorities directed the ad- ministration of church, educational and public health affairs in the province. Provincial assemblies were for the first time con- stituted as organs of a limited self-administration, not, however, on a liberal representative basis, but, on the 48 PRINCIPLES OF PRUSSIAN ADMINISTRATION contrary, in keeping with the reactionary spirit of the period on a class division akin to the stratification of feudal times. The landed gentry elected about one- half of the assemblymen, the cities and rural communes the other half ; the electoral franchise being conditioned on the ownership of realty. But the governmental activity of these assemblies was not very great. In matters of self-administration, their field of action was limited by lack of financial means ; and in the domain of central administration, it was confined to a limited collaboration through committees. Their chief signifi- cance lay in the matter of legislation, central as well as provincial, inasmuch as every law dealing with person and property, specifically taxation, was submitted to each of the eight provincial diets, not for their ratifica- tion indeed, but at least for their opinion. The district "governments" were introduced into the new territories, with such alterations as had been neces- sitated by the reorganization of the provincial authori- ties in 1815. The jurisdiction and procedure of the "governments" was regulated by decrees in 1817 and (1825. They were charged in general with the entire internal administration of the district, including taxa- tion, so far as particular matters had not been intrusted to special boards. They were organized as collegial bodies and divided into departments, normally three in number, one for internal and police administration; HISTORICAL SURVEY 49 one for finances, including domains, forests and direct taxes ; and one for church and educational institutions. The departments disposed of the great majority of business, while the entire body met only in special cases. At the head of each department stood a direc- tor, and as chairman of the " government" acting as a body sat the district president. The districts were, moreover, subdivided into circles as before, with this change, that they were no longer strictly rural, since all cities had been incorporated into the circle organization, save certain larger ones, which constituted circles for themselves. In each circle stood the old-time circle director (Landrat), not so much an official for active administration as a controlling agent of the central authorities. Alongside this Landrat there was constituted the circle diet, by which he was elected and over which he presided. This body, like the above-mentioned provincial assembly established in 1823, was the outgrowth of the same reactionary spirit and accorded even a greater measure of prepon- derance to the vote of the manorial owner as against the other two constituent elements, city and rural commune. But the scope of their activity was also greatly limited, by lack of adequate revenue-raising power. The smallest governmental subdivisions, alone, the rural communes, were not made the subject of a general 50 PRINCIPLES OF PRUSSIAN ADMINISTRATION enactment, because of the fundamental social and economic divergencies in the various provinces. In the early forties rural commune acts were passed for Westphalia and the Rhine Province, where a bureau- cratic organization on the French model presented the opposite extreme to the still strongly patrimonial admin- istration in the eastern provinces. For the cities the Municipal Government Act of 1808, still constituting a uniform regulation for most of the states, was extended to all except the Rhine Prov- ince, either in its original form or in a revised form, enacted in 1831, by which the importance of the Magis- trat was increased and a somewhat larger measure of central control provided. Outside the domain of administrative organization also increasing uniformity was attained, notably in the matter of revenues. Furthermore, the army was firmly established on the basis of a real, universal, compul- sory military service; and important economic, politi- cal and social legislation promoted the welfare of the people. These measures were the work of the able ministers of Frederick William III and of those of his son, Frederick William IV, by whom he was succeeded in 1840. The revolutionary year 1848, though so fraught with important consequences for the constitutional structure of the Prussian state, was of little significance in the HISTORICAL SURVEY 51 dm of administrative organization. 1 The patrimo- nial rural administration in the eastern provinces held out in the main, even against this wave of radicalism. The judicial jurisdiction of the manors was, however, discontinued in 1849. Other proposed radical reforms, especially in the system of local self-administration, were formulated in the Commune Act and in the Circle District and Province Act, both of March n, 1850. The new Prussian constitution of January 31, 1850, contained a separate article, adopted from the Belgian prototype intended to secure a large measure of ad- ministrative autonomy to the local governmental cor- porations. But a period of strong reactionary tendencies in the early fifties defeated attempts at reform by repeal of the two laws in May, 1853 ; on the same day the just- mentioned provisions of the constitution were struck out. Beginning with the Act of May 30, 1853, a series of laws were passed in the next three years, in large part in force to-day, regulating the local administration of cities and communes, but without presenting essential departures from the established principles. 1 But for administrative law the Constitution was of the greatest im- portance, for it introduced the principle of "legal " administration whereby the administration could henceforth establish legal rules or interfere with the liberty and property of individuals only on the ground of authoriza- tion by the legislature, to which the constitutional separation of powers had assigned these functions. 52 PRINCIPLES OF PRUSSIAN ADMINISTRATION In 1 86 1 William I, after more than two years regency in place of his ailing brother, succeeded to the throne. He almost immediately became involved in a bitter conflict with the Prussian legislature over the question of reorganizing the army. This internal contest, fol- lowed by a period of foreign wars, postponed further progress in administration for a decade. As a result of the Danish War in 1864 and the Aus- trian War in 1866, Prussia experienced large territorial aggrandizement. 1 The duchies of Schleswig and Hoi- stein, the duchy of Hannover, the Electorate Hessen, the duchy Nassau, and the free city Frankfort on the Main were incorporated into the Prussian state; and the task of coordinating the new territories into the administrative system was at once begun. Schleswig and Holstein were constituted as one province ; so also Hessen and Nassau together ; and the former kingdom of Hannover a third; Frankfort was united to Nassau. At the head of each province, the customary province president was placed, with special provincial authorities for matters of taxation, education and public health. Schleswig-Holstein had but one district; Hessen-Nassau, two. Hannover retained its own administrative subdivisions (Landdrosteien), six in number. In the lowest instance also Hannover was 1 In 1850 the two small Hohenzollern earldoms were incorporated into the Prussian state by voluntary annexation. HISTORICAL SURVEY 53 allowed to retain its existing organization with slight modifications, while in the other two provinces the circle with its director was introduced. But in both the latter, certain existing local officials were retained as the lowest police authority. But as regards the public corporations for local ad- ministration, few changes were undertaken, and the existing provincial variations remained for the present. In Schleswig-Holstein alone were new City and Com- mune Acts put into force, except that Frankfort was organized on the existing plan for Prussian cities. The formation of the North German Federation in 1867 and of its successor, the German Empire, in 1871, by which Prussia gave up its position as independent sovereign state and became an organic member of the new federal state, had little influence on its own admin- istrative system. Except in a few branches of state activity, the Empire exercised legislative functions alone and left the work of administration in general to the individual states. Prussia, therefore, now had imperial laws to administer, in addition to its own, but the method of administration was still a matter for its own determination. ' With the termination of the Franco-Prussian War in 1871 and the establishment of the German Empire, Prussia at last had opportunity again to turn her atten- tion to the much-needed administrative reforms. Ex- 54 PRINCIPLES OF PRUSSIAN ADMINISTRATION tensive reformations were demanded, both in the organs of pure state administration and in the system of local self -administration. In the field of state administration, wide-reaching reforms were undertaken in three directions: the introduction of a lay element into the administration; * \ a decentralization of administrative functions ; and the v \ protection of the individual through special organs against illegal action of the administration. The first of these desired changes, namely, vitalization of the administration through the enlistment of the unpaid services of the lay population, had already been part of Stein's reform plans early in the century. The radical period of 1848-1850 had championed the same principle to a stronger degree. But not until this latest reform was the principle actually put into prac- tice. Decentralization was desired, especially with respect to the district governments, which were charged with many purely local functions that could better be administered by the circle authorities. Finally, the need for a separation of the judicial functions of the administration from its strictly administrative minis- terial activities in the interest of individual protection had been becoming more and more imperative. The important principle of a legally limited administration, inaugurated by the new constitution, had, it is true, left the administration no longer its own legislator ; but HISTORICAL SURVEY 55 by permitting it to continue as its own judge, it had failed to cure the evil of unlimited and unrestrained executive power. The ordinary courts, so far from extending a protection to the individual, as against the administration, ' had been more and more completely deprived of all jurisdiction in administrative contro- versies, and the only remedy open to an injured indi- vidual was the unsatisfactory one of complaint to the higher authorities. The system of self -administration, moreover, was at least as sorely in need of reform, with the exception of the cities, as was the strictly state administrative system. This was especially true of the eastern prov- inces, where the patrimonial institutions and the class representative bodies were still in force. The first measure of the reform legislation, which was to remedy these evident defects, was passed in 1872. This was the Circle Government Act for the provinces East and West Prussia, Brandenburg, Pome- rania, Silesia and Saxony. But its scope went beyond the extent indicated in its name. Besides determining the structure and organization of the circle and recon- stituting it as a local self-administrative corporation, on a liberal electoral basis, it created new subdivisions, called precincts (Amtsbezirke) , which were vested with the patrimonial police jurisdiction of the manors. Furthermore, it took the first steps toward the estab- 56 PRINCIPLES OF PRUSSIAN ADMINISTRATION lishment of special judicial jurisdiction for administra- tive matters. In 1875 the reform was continued by three im- portant laws, enacted for the same provinces as was the Circle Government Act. The Act of June 29 or- ganized the province on the same principles as those underlying the Circle Government Act, and denned its functions both as agent of the state administra- tion and as a unit of self-administration. A law of July 3 completed the system of administrative courts already initiated in the Circle Government Act of 1872, by establishing three successive instances. Finally, the Subvention Act of July 8, 1875, removed the majority of the administrative officers for the province from the state budget to that of the province, at the same time appropriating a yearly contribution to meet the added expense. The jurisdictional delimitation between state and local authorities and between organs of pure ad- ministration and those for judicial determination were laid down by a law of the following summer. In 1880 a law regarding the general administrative organization codified the various provisions as to the state and local authorities and regulated their relation to each other. The final revision of these different laws, preparatory to their extension to the other provinces, occurred in 1883, through two fundamental enactments, which, save for minor amendments and some additions, HISTORICAL SURVEY 57 represent the law in force to-day. The first of these, the law concerning the general administration, super- seded the organization law of 1880, and the law of 1875, concerning administrative courts, as well, except as to the provisions concerning the supreme adminis- trative court. The separate authorities for actual ad- ministration and those for administrative adjudication in the district were now combined in one body. The second law, that concerning the competence and juris- diction of the administrative bodies, superseded the law of 1876 and regulated the whole subject anew. These laws were in effect only in the six provinces for which the Circle Government Act of 1872 was enacted, namely, Prussia, since 1877 redivided into East and West Prussia as before, Pomerania, Silesia, Saxony and Brandenburg. The final step was the extension of these laws to the remaining six provinces, which was begun in 1884. The Circle and the Province Acts were introduced in virtually the same form into Hannover in 1884; into Hessen-Nassau, in 1885; into Westphalia, in 1886; into the Rhine Province, in 1887 ; and into Silesia, in 1888. Political considerations weighed against an altera- tion of the existing system of local self-administration in Posen, where such a change was thought to endanger the predominance of the German element over the Poles. But the officers of state administration were 58 PRINCIPLES OF PRUSSIAN ADMINISTRATION introduced there in 1889, as they were into the other provinces. The two laws of 1883, concerning the general ad- ministration and the competence of the administration, were enacted for each province a year after the Circle and Province Acts. The former was passed without modification for Posen also in 1889; and the latter, with certain alterations, as regards the circle and pre- cinct authorities. As the last move in this reform programme, a Rural Commune Act was passed in 1891, for the seven eastern provinces, which supplemented the Circle Act by ex- tending local self-administration to these bodies also. The provisions of this Act were later enacted, with some modifications, in Schleswig-Holstein and in Hessen- Nassau. As a result, therefore, of the latest reform movement, beginning with the measures of 1872, an administrative system was developed, which, in place of the widely diverging disorganized structure of the early fifties, presented an essential unity with respect to all but the lowest authorities. , CHAPTER II THE RELATION BETWEEN STATE ADMINISTRATION AND IMPERIAL ADMINISTRATION 1 THE relation between the Prussian state and the German Empire in the field of administration cannot be understood without a reference to the entire relation of these states as founded in all essential points in 1867 and perfected in 1871, when the federal state received the designation empire. The formation of the Rhine Confederation in 1806, 1 which detached practically all the German states save Prussia and Austria from the still existing Holy Roman Empire, followed by the abdication of the Emperor Francis II, resulted in the absolute disappearance of all traces of the central power which for a thousand years had, in theory at least, bound the German states together. Prussia therefore from that time on, as also Austria and the Hansa cities, which did not join the Rhine Confederation, were wholly free and sovereign states. With the overthrow of Napoleon, resulting in the dissolution of the Rhine Confederation, and as a result of the determinations of the Congress of Vienna, ^nschiitz; " Staatsrecht " in Holtzendorff's " Encyklopaedie der Rechtswissenschaf t " ; Meyer- Anschiitz, 212; Laband, I, 66. 59 60 PRINCIPLES OF PRUSSIAN ADMINISTRATION all the other German powers were constituted sovereign independent states. For more than half a century after the fall of Napo- leon, all efforts to found a federal German state were fruitless, and the only political tie between them was the German Confederation established by the Congress of Vienna, 1815. This was, however, a mere interna-^ tional union, based on a compact witliout prejudke to the sovereign powers of each state. In effect it was only a defensive alliance, both against foes from with- out, and principally against revolutionary dangers from within. The German Confederation had as its organ a Confederate Assembly, but the provisions requiring una- nimity of votes in all important matters in which the Confederation might have acted made its importance still less. Continual friction between the two main powers, Austria and Prussia, paralyzed the action of the Confederation and threatened its existence. After having voluntarily renounced its powers in consequence of the revolutionary proceedings of 1848, the Confederate Assembly was later revived and the Confederation con- tinued until the declaration of war between Prussia and Austria in 1866. The immediate consequence of this war between the two principal members of the Confederation was of course its dissolution, a consequence expressly stipu- lated moreover in the Treaty of Prague. By the same STATE AND IMPERIAL ADMINISTRATION 6 1 treaty, the Emperor of Austria agreed to recognize the North German Confederation, thereafter to be founded by the King of Prussia. The first effective step in this direction was taken in 1866 by the formation of an offensive and defensive alliance between Prussia and twenty-one other German states north of the Main. This alliance was to be a temporary expedient for the time of one year only, within which period a new federal state was to be formed with a constitution based on the Prussian proposals made before the Austrian War. A national parliament was provided for, as well as plenipotentiaries to meet in Berlin for the drawing up of the constitution. After the constitution had been accepted by the Parliament and agreed to by all the twenty-two con- federated states, the North German Federation came into being in accordance with the provisions of the constitution on July i, 1867. Thereby was created a federal state, as opposed to the previous confederated state, and Prussia entered into a relation of subordina- tion to a sovereign central power. Following the forma- tion of the Federation, treaties of military and com- mercial alliance with the four South German states united the parties in close political relations, though constitutionally wholly separate. Then the Franco-Prussian War, in which the South German allies effectively fulfilled their treaty obligations, 62 PRINCIPLES OF PRUSSIAN ADMINISTRATION brought about the admission of these states into the constitutional federation. According to the various anal- ogous treaties framed with the southern states in 1870, ,the extended federal state, from now on to be called the German Empire, was established on January i, 1871.- The constitution of the North German Federation con- tinued in force as the new German constitution, with such alterations as the South German states had de- manded, but the first work of the new government was the revision of the constitution, completed on April 16, 1871. This, then, is the instrument, together with its subsequent amendments, in which the exposition of the relation between Prussia and the German Empire is to be sought. The determination of the limits between the juris- diction of the Empire and that of. the single state is contained in the constitution of the Empire. The Em- pire is, however, a government of delegated powers, while the single state is a government of inherent or reserved powers. The Empire may, therefore, exercise only those functions which the constitution assigns to it. The single state on the other hand may exercise all powers of state except in so far as limited by the con- stitution. In case of doubt, therefore, the presumption of jurisdiction is in favor of the single state. Article 4 of the imperial constitution enumerates many of the functions of the Empire, both as regards STATE AND IMPERIAL ADMINISTRATION 63 legislation and control. It must be noted that the jurisdiction of the Empire as regards all the matters enumerated in Article 4, citizenship ; commerce and customs duties ; money, weights and measures ; banks ; patents and copyrights ; railroads ; navigation ; post and telegraph; army and navy; etc., etc., comprises only supervision and legislation, not administration. According to the principle laid down above, therefore, the Emrjire has no generaLpowjer^ of administration. It must not be forgotten, however, that although the constitution limits the powers of the Empire, in the sense that only those powers it enumerates can at any given time be exercised by the Empire, yet inasmuch as the absolute power of amending the constitution is at the same time given by the instrument, there is nothing to prevent the Empire from enlarging its powers at any time by amending the constitution. This is possible by an ordinary act of the legislature, provided not more than fourteen votes oppose it in the Bundesrat. It is true that Prussia with her seventeen votes could in fact all alone prevent an amendment which she opposed, but the constitutional principle remains that the Empire may enlarge its own jurisdiction at the expense of the single states by an ordinary law to that effect. This has, indeed, already been done. 1 1 Law of March 3, 1873, adding the regulation and supervision of navi- gation signs to the jurisdiction of the Empire. So also, above all, the law 64 PRINCIPLES OF PRUSSIAN ADMINISTRATION The Empire could, therefore, assume the administra- tive, as also the judicial, power, but this it has not chosen to do. The general principle has been followed that administration is a matter for the individual states, while regulation, i.e. legislation and supervision, is exer- cised by the Empire in regard to the matters within its jurisdiction. Nevertheless, there is imperial adminis- tration as well as state administration. This is the so-called proper and immediate administration of the Empire. It includes the organization and direction of the imperial organs, the administration of the imperial finances and all other matters lying without the sphere of action of the individual state, such as foreign relations. Furthermore, the entire administration in the terri- tory not belonging to any state, Alsace-Lorraine and the colonies is imperial administration. Finally, there are various branches of administration which the Em- pire has undertaken itself, either on the basis of con- stitutional provisions to that effect, such as the ad- ministration of the navy, in part of the army, of the post and telegraph, etc., or on the basis of special laws altering the constitution, such as the administration as regards money weights and measures, navigation patents, workingmen's insurance, etc. All other administration is therefore matter of the of December 20, 1873, extending the jurisdiction of the legislature to the whole field of civil and criminal law and procedure. STATE AND IMPERIAL ADMINISTRATION 65 states, but subject to the supervision of the Empire with regard to all matters enumerated in Art. 4 of the constitution. This supervisory power of the Em- pire exists irrespective of the actual exercise of the imperial legislative power with regard to a given matter, for in Art. 4 the supervising power is mentioned before the legislative power. The scope and purpose of this supervision is to pre- vent the individual state from endangering the interests of the Empire and to insure administration within the limits of the laws. The supervision is exercised by the Emperor, his subordinate authorities and the Bundesrat for those branches of administration that are regulated by imperial law. The Emperor has this power of supervision by virtue of Art. 17 of the imperial con- stitution, whereby he is charged with the duty of dis- covering and attacking defects in the administrative action of the single state. The means of remedying the defect must be determined by the Bundesrat by virtue of Art. 7, paragraph 3, except in military questions (Art. 63, paragraph 3). If, however, a matter subject to the supervision of the Empire has not been regulated by imperial law, then the supervisory organ is the Bundesrat alone. This function follows from the general presumptive jurisdiction of the Bundesrat, which possesses all powers of the Empire not assigned to one of the other organs. 66 PRINCIPLES OF PRUSSIAN ADMINISTRATION The manner of exercising the supervision is not indi- cated in the constitution, but the natural method is for the supervising organs to demand of the executive of the state information concerning events calculated to induce an intervention by the Empire. The coercive power for enforcing this control is given in Art. 19 of the constitution, by which the Bundesrat is to deter- mine on execution and the Emperor carry it out, by force of arms if need be. Finally, it may be mentioned that in all matters not included among those declared to be subject to super- vision by the Empire, the manner of administration is determined wholly by the laws of the individual states free from interference by the Empire. So, for instance, the whole question of local government is a matter to be dealt with individually by each state subject to no other law or supervision than that of the state itself. The same is true as regards education and religion. CHAPTER III_ THE ORGANS OF ADMINISTRATION Central Authorities THE supreme administrative authority is the King. By virtue of his position as executive head of the State, he is clothed with the power of organizing and directing , the administrative branch of the government. 1 This / power includes the right to create offices, to appoint officers, to define their jurisdiction and to issue all need- ful rules and regulations for their government, so far as these matters are not regulated by legislative enact- ment. This executive power cannot, however, be used either to create new legal rights or to prejudice existing ones, for that is the function of the legislature. 2 Further- more, the legislature can, through its power over appro- priations, exercise an indirect veto on the power of organization, whenever these executive measures of organization involve additional expense. 3 The King can act in his administrative capacity only 1 Meyer-Anschiitz, "Deutsches Staatsrecht," Ed. vi (1905), p. 571, n. 5. 2 Constitution of Prussia, 1850, Art. 62, par. i. 3 Ibid. par. 3. 67 68 PRINCIPLES OF PRUSSIAN ADMINISTRATION through the agency of his Ministers, whose counter- signature is requisite to the validity of his acts. 1 He alone has the right to appoint and remove the Ministers, 2 except in cases of violation of the constitution, bribery or treason, when another method of removal may be provided for by law. 3 The system of independent coordinate Ministries was first permanently established in i8io. 4 Originally five in number, they have since been increased to nine, and now comprise the Ministries of (a) Foreign Affairs, (b) War, (c) Justice, (d) Finances, (e) the Interior, (/) Spiritual, Educational and Medical Affairs, (g) Public Works, (h) Agriculture, Domains and Forestry, (i) In- dustry and Trade. At the head of each Ministry stands an independent Minister who is solely responsible for the conduct of his department, the jurisdiction of which is defined by law. The functions of the Minister are to direct his depart- ment, to countersign the governmental acts of the King and to execute his orders. For the exercise of these functions, he is empowered to issue orders to his sub- ordinates in office saving those who, like the judges, are especially given an independent position. He supervises the state authorities and officers of his depart- ment, is highest instance in all administrative questions 1 Constitution of Prussia, 1850, Art. 44. 2 Ibid. Art. 45. *Ibid. Art. 61. 4 Order of Oct. 27, 1810 (Gesetz Sammlung, p. 3), S. S. p. 113. THE ORGANS OF ADMINISTRATION 69 not expressly assigned to other organs and must at stated intervals submitjtojthe King a report concerning his department. 1 Under the Minister, and responsible in all things to him, are an Under Secretary (Staatssekretar) as general agent, Divisional Chiefs (Ministerialdirektoren) for the divisions into which each department is divided, and a number of Counsellors (Vortragende Rate). The Ministries of Foreign Affairs, of War, and of Justice deal with phases of administration that do not fall within the concept "internal administration" treated in this work. The organization and jurisdiction of these departments need, therefore, not be more closely examined here. 2 The Ministry of Finances dates from the order of 1810, though its jurisdiction has been variously altered since that time. It comprises three divisions, one for budget and treasury, another for direct taxes and the third for indirect taxes and customs. The jurisdiction of the Ministry extends over the general treasury, the direction of the lottery, the mint, the collection and management of revenues, the administration of State debts and other financial activities of the State. 3 The Ministry of the Interior, the last of the five i Ibid. 8 For a description of these three ministries cf. Hue de Grais, "Hand- buch der Verfassung und Verwaltung," 20 Ed., 44, 83, 99, 174, par. 2. 47. 70 PRINCIPLES OF PRUSSIAN ADMINISTRATION original Ministries established in 1810, comprises two divisions. Its jurisdiction, considerably diminished from its original extent by repeated partition into new Minis- tries, covers the general field of internal administration, including the supervision of the subordinate govern- mental organizations and the police functions. It has, moreover, the residuary jurisdiction over all matters not assigned to other departments. 1 The Ministry for Spiritual, Educational and Medical Affairs was created in 1817 2 by withdrawing these sub- jects from the Ministry of the Interior. It comprises four divisions; one for spiritual affairs, another for higher and technical education, a third for primary education and a fourth for medical affairs. The Ministry has general jurisdiction over the universities and technical schools, scientific and art institutes, various educational and medical examining boards and sanitary commissions. 3 The Ministry of Public Works was established in 1878 4 by separation from the Ministry of Trade, In- dustry and Public Works. It contains seven divisions five for the various branches of railroad administra- tion and two for public works and buildings and the regulation of highways and buildings. 5 1 Hue de Grais, " Handbuch der Verfassung und Verwaltung," 20 Ed., 48. 2 Royal Order, Nov. 3, 1817 (G. S. 1817, p. 289), S. S. p. 155. 3 Hue de Grais, 49. 4 Royal Order of Aug. 7, 1878 (G. S. 1879, p. 25). 6 Hue de Grais, 50. THE ORGANS OF ADMINISTRATION 7 1 The Ministry of Agriculture, Domains and Forests was founded in 1878 * by transferring from the Ministry of Finances the administration of Forests and Domains to the Ministry of Agriculture. 2 It comprises four divisions, the first two of which deal with a variety of economic and agricultural undertakings, the third with the administration of the domains, and the fourth with the state forest preserves. For the execution of its functions, the Ministry relies upon a number of subordi- nate educational and technical institutes. 3 Finally, the Ministry of Commerce and Industry, established in 1878^ also contains four divisions : mines and mining, commerce, industry and industrial educa- tion and improvement. In addition to a number of institutions educational, technical and scientific maintained for its purposes, it is charged with the supervision of private banks, navigation, harbors and pilotage. 5 The Ministry of the Royal Household, established in 1819, 6 does not belong to the state departmental Minis- tries, for its function is primarily the administration of 1 Order of Aug. 7, 1878, and Law of March 13, 1879 (G. S. 1879, PP- 25, 123). 2 The Ministry of Agriculture was established in 1848 (G. S. 1848, p. 159, n. 5), by separation from the then Ministry of Trade, Industry and Public Works. 3 Hue de Grais, 51. 4 G. S. 1879, P- 123. 6 Hue de Grais, 52. 6 Royal Order, Jan. n, 1819 (G. S. 1819, p. 2). 72 PRINCIPLES OF PRUSSIAN ADMINISTRATION the private affairs of the Crown. It does, however, exercise certain public functions in matters of nobility and rank. f The nine independent departmental Ministries attain [ unity of action in the joint Ministry of State (Staats- ministerium) established in iSi/j., 1 comprising all the Ministers. In addition to the departmental Ministers, it is customary for the King to appoint Ministers with- out portfolio, who are then also members of the Ministry of State. Furthermore, three or four of the Secretaries at the heads of the most important offices in the Im- perial Chancellory are usually drawn into the Prussian Ministry of State to insure the smooth working together of Prussian and imperial organs. 2 The Ministry of State is presided over by the Minister President, who is, however, merely chairman, not in any sense a Prime Minister. 3 This Minister President is usually, though not necessarily, the Minister of Foreign Affairs, who is also the Imperial Chancellor. 4 A vice-president may also 1 Order of June 3, 1814 (G. S. 1814, p. 40), S. S. p. 124. Its functions were extensively denned in the Order of Nov. 3, 1817 (G. S. 1817, p. 289), and by later enactments. 2 At the present time, three such secretaries are in the Ministry of State. 3 At the time of its establishment under Count Hardenberg, as Chan- cellor of State, the Ministry of State was presided over by him as real Prime Minister. But with his death and the disappearance of the office in 1822, the presidency lost its original importance. 4 For the political reasons at the basis of this relation see Meyer- Anschiitz, 135. THE ORGANS OF ADMINISTRATION 73 appointed from among the Ministers. Otherwise the senior in time of service acts as vice-president. When the Ministry of State meets under presidency of the King, it is called the Crown Council (Kronrat). Its meetings are not regular, but as occasion demands. The functions of the Joint Ministry of State are two- fold, advisory and executive. Its nature is, however, essentially advisory, for its chief purpose is to permit consultation and discussion among the departmental Ministers, who are not, however, legally bound to abide by its determinations. This follows from their position as independent Ministers, directly responsible to the Crown alone. As advisory body, it receives reports from the Ministers and gives its opinion on all proposed laws, the budgets, proposals of the higher administra- tive bodies, and conflicts of opinion or jurisdiction between Ministers. 1 It has, however, also determinative, not merely ad- visory, functions : so the right of nomination for adminis- trative officers of higher order, e.g., Province Presidents, District Presidents, as well as for sugejrior judges and other officers of like rank. Furthermore, it is the highest instance for disciplinary proceedings against administrative, non-judicial officers ; 2 the last authority in proceedings for the compulsory amalgamation of 1 Order, Nov. 3, 1817 (G. S. 1817, p. 289, viii), S. S. p. 155. 2 Diszip. Ges., July 21, 1852 (G. S. 1852, p. 465, 41-46), S. S. p. 401. 74 PRINCIPLES OF PRUSSIAN ADMINISTRATION Rural Communes and Manorial Precincts ; 1 and the moving body for the dissolution of the representative organs of municipal corporations. 2 By the constitution itself, which continued this in- stitution of a combined ministerial council, the Ministry of State is charged with certain exceptional duties. So it must convoke the legislative houses for the election of a regent, if no heir exists who is entitled by law to act as regent; and up to the assumption of the regency by the one to be chosen, the Ministry of State acts as the supreme executive organ for the State. 3 Furthermore, in cases of urgent necessity, royal orders may be issued with the force of legislative enactments, if approved by the entire Ministry of State. 4 Finally, the right to suspend certain articles of the constitution in times of war or rebellion 5 has been assigned to the Ministry of State. 6 Directly subordinated to the Joint Ministry of State, and not to any one departmental ministry, are various 1 Landgemeindeordnung, July 3, 1891 (G. S. 1891, p. 233. 2, pars. 3 &4), S. S. p. 722. 2 Stadteordmmg, May 30, 1853 (G. S. 1853, p. 261, 79), S. S. p. 517. Landgemeindeordnung, July 3, 1891 (G. S. 1891, p. 233, 142), S. S. p. 722. Kreisordnung, Dec. 13, 1872 (G. S. 1872, p. 661, 179), S. S. p. 916. Provinzialordnung, June 29, 1875 (G. S. 1875, p. 335, 122), S. S. P- 977- 3 Const, of Prussia, 1850, Art. 57. 4 Ibid. Art. 63. 6 Ibid. Art. 3. 6 Law of March 20, 1837 (G. S. 1837, p. 6). Order of June 25, 1867 (G. S. 1867, p. 921, Art. II). THE ORGANS OF ADMINISTRATION 75 important quasi-judicial bodies, such as the disciplin- ary court for non- judicial officers (Disziplinarhof), the court for conflicts of jurisdiction between administra- tive and judicial courts (Kompetenzgerichtshof) and the supreme administrative court (Oberverwaltungs- gericht), as also certain organs of pure administration. 1 * The Council of State (Staatsrat) established in iSi;, 2 after being repeatedly planned without realization, was modelled on the French Conseil d'Etat in its advisory capacity and created as consulting body for the King. Its importance was at first very considerable, but has steadily diminished, and with the introduction of the constitution (1850) it lost its raison d'etre and there- with nearly all practical significance. It is composed (i) of the Royal Princes who have attained their ma- jority, (2) of ex-officio members, including the Minis- ters, Field Marshals, the Chefs of the Cabinet, the President of the Supreme Court of Accounts and such active Generals and Province Presidents as are located in Berlin; and (3) of such other members as the King may appoint. The King either acts himself as presi- dent or appoints a chairman ; a secretary is also provided for in the order. The Council is divided into seven departments, which were charged with the bulk of the business by the act 1 Hue de Grais, 47. 2 Order of March 20, 1817 (G. S. 1817, p. 67), S. S. p. 132. 76 PRINCIPLES OF PRUSSIAN ADMINISTRATION of reorganization in I848. 1 The meetings are at irregu- lar intervals, as occasion demands, but for about twenty years past, there has been no convocation of the Coun- cil ; and though in the first thirty years of its existence the Council of State exercised an active and beneficial influence in questions of administration, it is now in effect defunct, though not formally discontinued. / The Privy Cabinet, an institution that exists in name since the time of the Great Elector, dates in its present organization from the same order of 1810 which estab- lished the five central Ministries. At that time, its earlier character of intermediate authority between Ministers and King was abolished. Instead of being an order superior to the Ministers and in the period immediately preceding often opposed to their wishes \\ it became a sort of secretary's office for the despatch of the ruler's public functions as Emperor and King, especially in his dealings with the Ministers. It comprises three divisions, the Civil Cabinet under the Privy Cabinet Counsellor; the Military Cabinet, constituted by the division for personnel affairs in the Ministry of War ; 2 and the Naval Cabinet, an organ for personnel affairs in the Navy. 3 In addition to these ministerial organs, there exist as 1 Order of Jan. 6, 1848 (G. S. 1848, p. 15). 2 Order, March 18, 1883 (Armeeverordnungsblatt, 1883, p. 56). 3 Order, March 30, 1889 (Marineverordnungsblatt, 1889, p. 771). THE ORGANS OF ADMINISTRATION 77 strictly central administrative authorities, that is, those which are immediately subordinated to the King, the Supreme Administrative Court and the Supreme Chamber of Accounts. The Supreme Administrative Court (Oberverwalt- ungsgericht) was established by law of 1875 1 as the highest authority in the system of administrative courts. It is composed of professional members, over thirty years of age, half of whom must be qualified for the office of judge ; the other half, for the superior adminis- trative service. They are appointed for life by the King on nomination of the joint Ministry of State and are removable only by action of the court itself. 2 By act of the Ministry of State, as sanctioned by the law of i88o, 3 the Supreme Administrative Court has been divided into nine departments, called Senates, each comprising at least five members. There is a President for the Court as a whole, who acts also as President for one of the regular Senates and for the special Senate for the disciplinary proceed- ing. For each of the other seven Senates, there is like- 1 Law of July 3, 1875, reenacted in the Law of August 2, 1880 (G. S. 1880, p. 828, 17-29). Further provisions concerning the organization and method of procedure of this court are contained in later laws. See Anschiitz-Dochow, "Organizationsgesetze der inneren Verwaltung in Preussen," 2d Ed., p. 139 ff. Also Hue de Grais, op. cit. p. 65, 53, n. i. Law of May 8, 1889 (G. S. 1889, p. 107), S. S. p. 418. 1 Law of Aug. 2, 1880 (supra, 26). 78 PRINCIPLES OF PRUSSIAN ADMINISTRATION wise a President. Decisions are rendered by the in- dividual Senates, but in case a Senate decision runs counter to a former decision of another Senate, it must be submitted to the Court as a whole. 1 For decisions of the entire Court, the participation of two-thirds of all members is required. An executive committee, com- posed of the President, the Senate Presidents and the senior member of the Court, determines the composition of each Senate for the ensuing year. The distribution of business among the Senates is determined by the Court acting in a body, subject to approval by the Ministry of State. The appointment of the subordi- nate officials of the Court rests with the Ministry of State, so far as not transferred to the President by action of the Court as mentioned above. The office of a member of the Court is a primary one and can neither be conferred as a secondary one nor combined with other remunerative offices, except to the extent allowed by law in the case of judges. The jurisdiction of the Su- preme Administrative Court is partly appellate, partly original. In the former case, it may act as court of appeal or as court of review for appealable or reviewable decisions of the lower administrative tribunals, and it may be the court of either second or third instance. The Supreme Chamber of Accounts, first established in 1714 as a royal auditing authority, was reorganized 1 Law of May 27, 1888 (G. S. 1888, p. 226). THE ORGANS OF ADMINISTRATION 79 in 1817 and I824. 1 The Prussian constitution desig- nates this body as the auditor of state accounts and as highest reporting authority to the legislature. 2 The law, however, which was to regulate the organization and jurisdiction of the Chamber of Accounts, was not passed until i872. 3 By virtue of that law, and of supplementary enact- ments, 4 the Chamber is constituted a central organ for audit and control, directly subordinate to the King and independent of the Ministers. It consists of a Presi- dent, appointed by the King upon presentation of the Ministry, and of other members similarly appointed on presentation of the President. The members of this body may not also be members of the legislature. They have the same security of office as the judges of the Supreme Administrative Court. The functions of the Chamber of Accounts are, to examine and certify the accounts of all state authori- ties, to record the increases and diminutions in the property of the State and to supervise the management of the state debt. Furthermore, it must examine and approve the report on the budget and expenses for the preceding year, before the submission thereof to the legislature. 1 Instruction of Dec. 18, 1824 (Kamptz' Annalen, ix, 2). 2 Prussian Const., Jan. 31, 1850, Art. 104. 3 Law, Mar. 27, 1872 (G. S. 1872, p. 278 ff.), S. S. p. 423. 4 Cf. Hue de Grais, p. 190, n. 4. 80 PRINCIPLES OF PRUSSIAN ADMINISTRATION The same organ, increased by the addition of a few members and called Court of Accounts of the German Empire, exercises the corresponding function in the finance administration of the Empire by virtue of an imperial law, renewed from year to year. 1 Subordinate Authorities For purposes of the general internal state adminis- tration, the territory of Prussia is divided into Provinces, these in turn into Districts (Regierungsbezirke), and these into Circles (Kreise). For each class of sub- divisions, there is a special organization of state au- thorities. The Provinces and Circles, moreover, con- stitute also the areas of public corporations for local administration, while the District is solely an organ of state administration. Province State Administration The present scheme of dividing the State into ad- ministrative units, called Provinces, was adopted in i8i5- 2 At first ten in number, they were later reduced by amalgamation to eight; then, by the addition of the territory acquired in 1866, increased to eleven; and 1 Law, July 4, 1868 (Bundes G. B. 1868, p. 433). For supplementary provisions, cf. Hue de Grais, p. 264, n. 8. 2 Order of April 30, 1815 (G. S. 1815, p. 85), S. S. p. 126. THE ORGANS OF ADMINISTRATION 8 1 finally, in 1877, by the redi vision of the Province Prussia into East and West Prussia, still further increased to their present number, twelve. 1 Their boundaries, based on historical antecedents, are irregular and not always continuous, but all portions of the State lie within some Province, except the territories of Hohenzollern and the City of Berlin. The former are generally treated as a separate District, the latter usually as a separate Circle. The organs of state administration in the Province are the Province President (Oberprasident) and the Province Council (Provinzialrat) . The office of Province President dates from the order of 1815. It was created to serve purely as a supervising agent for the Minister in the Province, not as a local authority. Its functions were, however, later increased, and the office now constitutes also an active administrative authority, with a jurisdiction of its own. The functions of the Province President as defined in an instruction of 18252 and in subsequent decrees, orders and laws, 3 are threefold. 1 These Provinces are generally classed in three groups, as follows : the " East " Provinces East and West Prussia, Posen, Silesia, Pomerania and Brandenburg ; the " West " Provinces Rhine, Westphalia and Hes- sen-Nassau; and the "New" Provinces Schleswig-Holstein, Hannover and Saxony. The first and second groups are also sometimes classed together as the "Old" Provinces. 2 Instruction of Dec. 31, 1825 (G. S. 1826, p. i), S. S. p. 156. 3 Cf. Hue de Grais, p. 70. 82 PRINCIPLES OF PRUSSIAN ADMINISTRATION (1) He has a sphere of immediate state administra- tion. Together with an assistant (Oberprasidialrat) and the requisite number of counsellors and aids, 1 he is charged with all matters of state administration concerning the Province at large, and those extending beyond the sphere of a single district. So, for instance, state institutions, cooperation with the military authori- ties, the public dealings with the Catholic Church and the chairmanship in various Province boards are all objects of his administrative activity. 2 Furthermore, he is licensing authority for a variety of activities not of common right and appoints certain inferior officers. 3 / Finally, the Province President may issue certain police V regulations 4 for areas not included within a single dis- trict, which must be approved by the Province Council. 5 (2) The second form of activity of the Province President is that of a supervising authority, both for the subordinate state authorities in the Province 6 and for the n\unicipal corporations within the same. 7 To this end, he is charged with the duty of controlling the of the administration, for which purpose he may demand reports, institute examinations of records and investigate the conduct of subordinate 1 Landesverwaltungsgesetz, July 30, 1883 (G. S. 1883, p. 195, 8). 8 Instruction of 1825, 2, 3. 8 Hue de Grais, p. 71, n. 8. 4 See p. 161. 6 L. V. G. 1883, 137-139- 6 Instruction of 1825, i, II. 7 Provinzialordnung, June 29, 1875 (G. S. 1875, p. 335, 114-117). THE ORGANS OF ADMINISTRATION 83 officials. He is the last instance in questions of com- munal and of Circle administration 1 and may tem- porarily suspend the acts of the Province Corporation. 2 Furthermore, he is the last hierarchical authority for protests against police orders of the lower authorities. Finally, the Province President acts as personal rep- resentative of the King and his Ministers in a variety of concerns, which function was originally the only one intrusted to this officer. In this capacity, he convokes and adjourns the Province Assembly (Provinziallandtag) and acts as intermediary between the same and the state authorities. He is, moreover, entitled, in person or through representatives, to attend the meetings of the Assembly or its special committees and has a right to be heard at any time. 3 Furthermore, he also acts as representative of the central authorities in exceptional cases, such as war or other urgent necessity. 4 Stein's ideal of an element of lay participation in state administration was finally carried out in the second organ of state administration, the Province Coun- cil (Provinzialrat). This body, whose organization is determined by the law of i883, 5 consists of the Province President as chairman, a higher administrative official appointed by the Minister of the Interior from among 1 ZustSndigkeitsgesetz, Aug. i, 1883 (G. S. 1883, p. 237, 7). Kreis- ordnung, Dec. 13, 1872 (G. S. 1872, p. 661, 177). 2 L. V. G. 1883, 127 and 130. 8 Prov. O. 1875, 26, 27. 4 Instruction of 1825, n, num. 2, 3. B L. V. G. 1883, 10-15. 84 PRINCIPLES OF PRUSSIAN ADMINISTRATION those active at the seat of the province administration, and five non-professional members. These five last- named members are chosen for the term of six years by the Province Committee, 1 from among those qualified to membership in the Province Assembly. 2 For each member, a substitute is chosen and one-half of the elected members go out of office every three years, but are reeligible. They are removable from office by regu- lar disciplinary proceedings. They are unsalaried offi- cers, but receive a reimbursement of outlays as fixed by the Province Assembly. 3 The functions of the Province Council are to cooperate with the Province President in adopting measures and regulations for the general administration of the Province 4 and to hear and con- sider protests against measures of the District Com- mittee. 5 Its actions are under the supervision of the Minister of the Interior, 6 whose official requirements and directions it must follow. 7 Thirdly, there exist various Province Boards for special branches of administrative activity. These include the Province Board for Indirect Taxes (Ober- zolldirektion) ; the Province School Board (Provin- zialschulkollegium) ; and the Province Land Board (Generalkommission). The first and the last of these 1 See p. 89 ff. 2 See p. 87 ff. 3 Prov. O., p. 100. 4 L. V. G. 1883, 4, 139. 6 See p. 102 ff. L. V. G. 1883, 48. Ubid. 49- THE ORGANS OF ADMINISTRATION 85 boards are wholly separate from the general adminis- trative organization, while the second and third are presided over by the Province President. The City of Berlin, as a subdivision of state adminis- tration, is legally distinct from the Province of Bran- denburg, within the boundaries of which it lies. 1 It has, however, the same Province President and the same special boards as the latter. It is without a Province Council, however, whose functions as a direct adminis- trative organ are exercised by the Province President, in other cases by the competent Ministers. 2 The territory of the former Hohenzollern Principali- ties 3 which does not fall within any province has neither Province President nor Province Council. Their func- tions are exercised partly by the District President (Regierungsprasident) ; partly by the special boards of the neighboring Rhine Province; and, so far as not otherwise ordained by law, by the competent Minister. 4 Province Local Administration Not only are the Provinces administrative subdivi- sions for the exercise of state functions, but they are 43. 3 Annexed to Prussia upon voluntary cession in 1850, Law of March 12, 1850 (G. S. 1850, pp. 289, 295). 4 L. V. G., 5; Order, Jan. 7, 1852 (G. S. 1852, p. 35); Edict, Aug. n, 1809 (A. V. B. 1809, p. 355). 86 PRINCIPLES OF PRUSSIAN ADMINISTRATION also public corporations for the management of local concerns; a character they first acquired in 1823 to a limited extent, 1 when they were constituted on the earlier class divisions. This feature was altered and the functions of the corporation greatly increased by the later reform legislation. 2 The Province Corporation 3 includes both juristic and physical persons. Juristic members are all Circles within the Province (these Circles being in their turn public corporations). Physical members are all persons belonging to these Circle Corporations. The members of the Corporation are entitled to participation in the administration of the same and to a voice in its repre- sentative body. Furthermore, they are entitled to a co-user in the public institutions of the Corporation, as determined by law. On the other hand, they are obliged to contribute to the financial support of the Corporation. The territorial boundaries of the Province Corporation are alterable by act of the legislature only, except where a change in the limits of the lowest units of local admin- istration operates to change the province boundaries also. The Province Corporations are empowered to 1 Law of June 5, 1823 (G. S. 1823, p. 129) 2 Prov. O. 1875; reenacted with some changes on March 22,1881, and published on the same day (G. S. p. 233). This law was originally enacted for the seven eastern provinces, except Posen. For the exten- sion to the other provinces, see Ch. I, p. 57. 8 Prov. O. 1875, 1-8. THE ORGANS OF ADMINISTRATION 87 pass by-laws and regulations concerning their own organization and that of their institutions, so far as not otherwise determined by law. The organs of the Province Corporation are the Province Assembly (Provinziallandtag), the Province Committee (Provinzialausschuss), the Province Director (Landesdirektor or Landeshauptman) with his assist- ants and such special commissions as the Province Assembly may deem desirable. The Province Assembly 1 is composed of representa- tives of the Circle Corporations within the Province. As a rule, each Circle elects two representatives and for each 50,000 inhabitants above a certain minimum (varying from 40,000 to 80,000, according to the prov- inces) an additional representative. A combination of two small adjoining Districts for voting purposes may, under certain conditions, be made. The representatives from the Rural Circles (Landkreise) are elected by the Circle Assembly; those from the City Circles (Stadt- kreise), by the joint Assembly of City Council and Magistrat or executive board. Every independent German citizen of thirty years of age is eligible to the Province Assembly, provided he has not been deprived of his political rights and provided he has either resided or owned realty within the Province for a year past. The election is for a period of six years. The manner . 9-44. 88 PRINCIPLES OF PRUSSIAN ADMINISTRATION of holding elections and supplementary elections and of entering election protests, which go in the last instance to the Supreme Administrative Court, are detailed by the act. In general, the Province Assembly itself judges of the qualifications of its members. The Province Assembly meets at least every two years, and as much oftener as business demands, on con- vocation by the King through his agent, the Province President, who is entitled to a place in the house and to be heard at all times. The meetings of the Assembly are public, unless otherwise ordered in executive session. 1 A majority of the members constitute a quorum. The members of the Province Committee, as well as the Province Director and his higher assistants, are entitled to an advisory voice in the Assembly, so far as not themselves members thereof, when not excluded by special resolution. The Assembly adopts its own rules of business. The general powers of the Assembly are, firstly, to render opinions on such proposed laws -or measures regarding the Province as are submitted to it for that purpose by the central authorities. Secondly, the Assembly represents the Corporation and manages its affairs and such other matters as are or may be assigned to it by royal order or legislative enactment. These latter include among others the passage of by-laws and 1 Its place of meeting is regularly in the Province capital. THE ORGANS OF ADMINISTRATION 89 regulations for the institutions of the Province; the de- termination of the manner of raising state revenues, so far as not prescribed by law ; the meeting of necessary or desirable province expenses, by levying of taxes, borrowing of money, etc. ; the disposition of public property ; the determination of the budget and finances of the Province; the principles that are to govern the administrative activities of the province authorities; the creation of new public offices; the number, salary and manner of appointing the officers; the election of the Province Director and his superior assistants, as well as of the Province Committee, the state Province Boards and the Special Commissions ; and the exercise of such additional functions as may otherwise be assigned to it by law. The Province Committee (Provinzialausschuss) con- sists of a chairman and from seven to thirteen members elected by the Province Assembly for the term of six years, from among those qualified for election to the Province Assembly. The Province Director is ex- qfficio member, but is not eligible for the chairmanship of the Committee. Neither Province President, Dis- trict Presidents nor province officials are eligible to the Committee. The members receive a reimbursement for official expenses. One-half go out of office every three years, are reeligible, and are removable through the regular disciplinary proceeding. 90 PRINCIPLES OF PRUSSIAN ADMINISTRATION The Province Committee l meets irregularly, as often as business requires, upon convocation by the chairman. It must be convoked upon written demand of the Province Director or one-half of its members. It may also fix regular days for its sessions. Its order of busi- ness must be approved by the Province Assembly, whose chairman is entitled to an advisory voice in the meetings of the Committee, as are also the higher officials assistant to the Province Director. The functions of the Province Committee are to pre- pare and execute the measures of the Province Assembly, so far as this has not been intrusted to special commis- sions or officials ; to administer the province funds and manage the province institutions ; to appoint all prov- ince officials, except those appointed by the Province Assembly; and to give its opinion on all matters sub- mitted to it by the Province President or the Ministers. The. Province Director 2 (Landesdirektor in the Province Brandenburg, elsewhere Landeshauptmann) is the executing organ for the Province Corporation and, with his assistant officials, carries on the running administration. He is elected by the Assembly for a period of from six to twelve years. His election must be approved by the King. In case this approval is refused, a new election must be held. If this election is not approved, or if the Assembly fails to elect at all, i Prov. O., 4S-6i. 2p v. O. 1875, 87-92. THE ORGANS OF ADMINISTRATION 91 the Minister of the Interior may appoint a central agent to fill the office, until an officer is chosen by the Assembly whose election receives the royal approval. A temporary substitute for the Province Director may be appointed by the Province Committee. The duties of the Province Director are to prepare and execute the determinations of the Province Committee, I of which he is a member ; to act as the official superior of all province officers ; to act as agent of the Province Corporation in its dealings with official bodies and private persons; to direct the official correspondence; and to sign all communications and documents. In the fulfilment of his function, he may call upon the lower authorities for aid. By act of the Province Assembly, additional officers may be provided for to assist the Province Director, either as advisory or cooperative assistants (Landesrate) . They are appointed by the Assembly. Furthermore, additional officers and commissions may be constituted special administrative authorities for specific branches of administration or for particular institutions by act of the Assembly. These authorities are elected by the Prov- ince Committee (unless this right is especially reserved by the Assembly) and are subordinated to the same. 1 1 The necessary subordinate personnel for clerical service and business routine are appointed by the Province Committee. All province officials have the rights and duties of mediate state officers. Q2 PRINCIPLES OF PRUSSIAN ADMINISTRATION Certain variations are to be noted in the Provinces into which the organizatory law of 1875 was later intro- duced. In Posen, the Assembly is still constituted on the old class system, by Landed Gentry (122 represent- atives), Cities (16 representatives), and Rural Com- munes (8 representatives). 1 The members of the Prov- ince Committee must be approved by the Minister of the Interior. 2 In Hannover, the Province Director (Landeshaupt- mann) is not ex-officio member of the Province Com- mittee. Nor is he a bureaucratic authority, as in the other provinces save Saxony, where, by act of the Assembly, the collegial system has been introduced but a member of a collegial body, the Province Direc- torate, which includes, besides the Province Director, several financial counsellors (Schatzrate). 3 In Hessen-Nassau there is a Province Assembly, but no Province Committee. The administrative func- tions of the latter are performed by the Province Presi- dent, while the electoral functions are exercised by the Assembly. This variation is due to the fact that each of the two parts, Hessen and Nassau, had, upon their acquisition and combination into a province, been Law, March 27, 1824 (G. S. 1824, p. 141), and a number of supple- mentary acts. See Hue de Grais, 81, n. 28. 2 Law of May 19, 1889 (G. S. 1889, p. 108). Order of Nov. 5, 1889 (G. 8.1889, p. 177). 3 G. May 7, 1884 (G. S. 1884, p. 237), S. S. p. 949- THE ORGANS OF ADMINISTRATION 93 constituted a District Corporation, endowed with many of the powers elsewhere assigned to the Province Cor- poration. The field of activity of the latter is therefore smaller and its Assembly is merely a joint body, composed of the District Assemblies. 1 In the Province Schleswig-Holstein, the chief varia- tion consists in that the Duchy of Lauenburg and the island Helgoland, though within the boundaries of the Province as a state administrative subdivision, are not part of the Province Corporation, but constitute sepa- rate public corporations. 2 The territory of Hohenzollern, which is not part of any province subdivision, does not fall within any Province Corporation either, but constitutes a separate corporation for the same purposes. It is organized like a Province with an Assembly and a Committee and an executing organ in the chairman of both. 3 Similarly, the City of Berlin is not a part of any Province Corporation, 4 but is itself charged with the performance of the duties imposed by law on the Prov- inces. It has no separate organs, however, for these purposes, but acts through its regular city government. To meet the expenses of the Province Corporations, several sources of income are provided for by law, 1 G. June 8, 1885 (G. S. 1885, p. 242). S. S. p. 958. 2 G. May 27, 1888 (G. S. 1888, p. 191), S. S. p. 973. 8 O. April 2, 1873; revised July 2, 1900 (G. S. 1900, p. 324), S. S. p. 882. * Prov. O. 1875, 2. 94 PRINCIPLES OF PRUSSIAN ADMINISTRATION state subventions, fees and contributions and province taxes. The former were established in 1873 an< i I ^75 and increased by law of 1902. By the first law, 1 an appropriation was provided to meet the expenses of the proposed province administration and of the Circle Corporations. By the second law, 2 in elaboration of the first, additional subventions were granted to meet the increased expenses imposed by charging the Province Corporations with many functions until then exercised by the Central Government and at that time transferred from its budget to that of the local corporations. The obligatory functions of the Province were thereby greatly increased, and it became charged with the main- tenance or assistance in the maintenance of highways and internal improvements, poorhouses and houses of correction, institutions for the insane, the deaf and dumb and blind, charitable institutions, and subsidies for scientific and artistic associations. So also training schools for midwives and agricultural institutes were turned over to the Province Corporations. Furthermore, the Provinces were charged with the aiding of financially weak public corporations of lower order. Finally, by the law of I902, 3 additional yearly sums were appropriated for further aid in the domain 1 Dotationsgesetz, April 30, 1873 (G. S. 1873, p. 187), S. S. p. 1004. July 8, 1875 (G. S. 1875, p. 497)- 8 June 2, 1902 (G. S. 1902, p. 167), S. S. p. 1016. THE ORGANS OF ADMINISTRATION 95 of poor support and of the construction and mainte- nance of highways and bridges. These yearly subsidies for corporate purposes are granted not only to the Province Corporations, 1 but also to the corporation of Berlin, that of the Hohenzollern lands and that of Lauenburg, which exercise in these directions province functions. But these revenues from state subvention are far from adequate to meet the expenses of the Province Corporation and it must therefore make use of its tax- ing power. The exercise of this power, first granted in the laws relating to the organization of Province Cor- porations, is regulated uniformly by a law of I9o6. 2 They are entitled to raise revenue in the form of license fees, contributions and direct taxes, for the meeting of their expenses. Direct taxes, however, may be levied only after all the other sources of income, including province capital and the state subventions, have been exhausted. Industrial undertakings of the Province are unless they supply a need which would not other- wise be met to be so administered as to reimburse the Province for all funds invested, with interest and redemption of the capital. Fees (imposed for the use of public institutions) and contributions (imposed upon 1 In Hessen-Nassau, to the two district corporations Cassel and Wies- baden. 2 Kreis und Provinzial Abgabengesetz, April 23, 1906 (G. S. 1906, p. 159, 21 ff.). 96 PRINCIPLES OF PRUSSIAN ADMINISTRATION individuals financially benefited by province under- takings) may be fixed by the Assembly itself or by the Committee. In either case, objections may be raised by the individual concerned and communicated to the Committee. Then complaint may be entered before the Supreme Administrative Court within two weeks against the adverse determination of the Committee. Taxes are imposed, not directly on the personal members of the Corporation, but on the juristic mem- bers, the Rural and the City Circles. They are levied on the basis of the income taxes in each Circle, and the quotas assigned to the various Circles are fixed by the Province Committee. Against this assignment, objec- tions may be raised by the Circle Corporations before the Committee, with the right of complaint to the Su- preme Administrative Court against an adverse deter- mination. Special burdens may, by determination of the Assembly, be imposed on a Circle which is thought to be especially benefited by a province institution. The taxes imposed must be paid within a specified time into the province treasury. The determination of fees by the Assembly or Com- mittee and the special taxation of individual Circles must be approved by the Minister of the Interior. The levying of taxes amounting to more than 25 per cent of the income, and realty taxes used as a basis, must be approved by both Minister of the Interior and THE ORGANS OF ADMINISTRATION 97 the Minister of Finance, who are charged with the execution of this law. 1 The whole management of the Province Corporation is under the close supervision of the State. The organ for this purpose is the Proyince^President. There is given a right of protest against his determination within two weeks to the Minister of the Interior. Besides the supervisory__powers of the Province President, whose orders may be questioned by Province Assembly, Com- mittee or Special Board through complaint before the Supreme Administrative Court, there are certain powers exercised immediately by the Ministries. So the regu- lations issued by the Province Assembly for a variety of province institutions, require the approval of the competent Ministers, in certain respects; similarly for the regulations governing the appointment, removal and pensioning of province officers, which must be approved by the Minister of the Interior. The failure of a Province Corporation to provide for legally obligatory expenses may be met by an order of the Province President, inserting the omitted item or items into the budget. Against this order, the Cor- poration may also enter complaint before the Supreme Administrative Court within two weeks. Finally also, the Province Assembly may, upon pro- 1 Slight variations are introduced to meet the different conditions in Hessen-Nassau and Hohenzollern. H 98 PRINCIPLES OF PRUSSIAN ADMINISTRATION posal of the Ministry of State, be dissolved by royal order. Such dissolution is to be followed by new elec- tions within three months and by reconvention of the Assembly within six months. In that case, the Province Committee and the special Commissions remain active until the new Assembly has actually come into being. CHAPTER JII (Continued) DISTRICT ADMINISTRATION THE Districts (Regierungsbezirke) into which the Provinces were subdivided by the law of 1815 for pur- poses of state administration, are, like the Provinces themselves, determined by historical boundaries. Each Province contains from two to six of these Districts, except Schleswig-Holstein, which has only one. There is, in addition, the District of the Hohenzollern lands (Regierungsbezirk Sigmaringen) which do not belong to any Province, making thirty-six Districts in all. Berlin is not within any District, but itself exercises District functions. The organization and functions of the district au- thorities rest on a series of enactments beginning in 1808, when the name "Government" (Regierung) was first applied to the district administrative organs. 1 They were the successors of the former war and domain chambers, but deprived of their judicial functions. 2 In iSiy, 3 a detailed order defined the status of the 1 0. Dec. 26, 1808 (G. S. p. 464), S. S. p. 152. 2 See Historical Survey, p. 42. 3 Instr. Oct. 23, 1817 (G. S. p. 248). 99 100 PRINCIPLES OF PRUSSIAN ADMINISTRATION " Governments." This was extensively amended in 1825 * and again largely transformed in the reform meas- ures of i883, 2 to which general enactments have been added many measures affecting the district authorities in special concerns. The general jurisdiction of the district authorities extends over all matters of internal administration per- taining to the District and not assigned to other authori- ties. The organs of District administration are the so-called " Governments," with a District President (Regierungsprasident) as chairman and the District Committee (Bezirksausschuss). The " Government" is a collegial body under the chair- manship of the District President, and is as a rule divided into three departments. 3 It comprises the chairmen of the individual departments (Oberregierungsrate), a chief forester, a number of counsellors (Regierungsrate), technical advisers and assistants (Regierungsassessoren), besides office and clerical aids, which latter are not "members" of the "Government." The manner of doing business is principally by departments. The first department, dealing with general internal administrative affairs, was in 1803 discontinued as a department of the "Government" and assigned to the 1 Instr. Dec. 31, 1825 (G. S. 1826, p. 5). 2 L. V. G. 1883. 'Originally, there were two departments (Instr. 1817). Then there were four (Instr. 1825), of which the fourth, that for indirect taxes, was discontinued upon the establishment of the province tax boards. THE ORGANS OF ADMINISTRATION 1O.- District President for bureaucratic administration. 1 The functions of this department, as fixed by the instruc- tion of iSiy, 2 included matters of general police, public health, public charity, internal improvements, super- vision of public corporations and institutions, coopera- tion in military administration, collection and compila- tion of statistics, etc., so far as special organs have not been provided for these branches. For this purpose, he is provided with a special aid and other necessary assistants and attends to all general district matters not included within the jurisdiction of the other two departments. Of these latter, the one is the department for church and school matters, the other for direct taxes, domains* and forest preserves, which administer the branches indi- cated by their titles, so far as not otherwise assigned to special bodies. These departments act in the main independently within their fields, but certain matters are reserved for action by the "Government" as a body. So proposed legislation and new arrangements involving financial burdens, questions not pertaining exclusively to one division, emergency measures, questions of disci- pline, etc., must all be submitted for general consideration and action after discussion in the departments. 3 Acts of either the departments or the whole of the "Government" may be suspended by the District Presi- 1 L. V. G. 18. 2 Instr. 1817, 2 ff. 8 Ibid. 5. 10.2 PRINCIPLES OF PRUSSIAN ADMINISTRATION dent and in urgent cases be superseded by his own order. Otherwise, the matter in dispute is to be submitted to the superior authorities. 1 District Committee Just as the province administration includes an organ composed in part of lay members (Provinzialrat), so the district administration possesses in the District Committee (Bezirksausschuss) an organ in which the lay element is represented. This body was created in 1883, by the union of the District Council and the District Administrative Court into one body. 2 As regards its administrative activity the Committee was therefore the successor of the District Council, established in i875. 3 The District Committee 4 is presided over by the Dis- trict President and comprises two professional officials qualified for the higher administrative and judicial service, respectively, who are appointed for life by the King; and four non-professional members, chosen for six years by the Province Committee from among those inhabitants of the District who are eligible to the Province Assembly. 5 Certain named classes of state officials and 1 L. V. G. 24. 4 L. V. G. 28-35. 2 L. V. G. 154, Par. 2. 5 See ante, p. 87 ff. 3 Prov. O. 1875 (G. S. p. 233, 62-86). THE ORGANS OF ADMINISTRATION 103 all officials of the Province Corporation are ineligible. One-half of the number is renewed every three years. The Committee may be divided into sections for various parts of the District, in which case the President and the two professional officials act for all sections, unless special officials are named therefor, while the lay members for each section must be chosen anew. All members of the Committee, except the District President, are subject to the law concerning misdemeanors in office of judges, 1851, and fall under the disciplinary jurisdiction of the Supreme Administrative Court. The lay members receive per diems and travelling expenses as determined by law. The functions of the Committee are of two distinct kinds. It acts both as organ of active administration and as administrative court of first or second instance. In its capacity as administrative court, it will be examined in another connection. 1 In its capacity as organ of ad- ministration, the District Committee acts both as deter- minative authority and as supervisory body over lower organs of administration. So it must approve the police measures of the District President, 2 sanction municipal statutes, 3 hear protests against determinations of the Circle Committees 4 and act in a large variety of other cases arising in special branches of administration. 5 1 See p. 175 ff. 2 L. V. G. 139. 3 Zustand. G. 16, par. 3. 4 L. V. G. 121. * Zustand. G., Aug. i, 1883, G. S. 237. 104 PRINCIPLES OF PRUSSIAN ADMINISTRATION The general distributive law of 1883 defined a large number of these duties with respect to the supervision of the lower organs of local administration and the regulation of poor relief, school matters, highways, gaming and fishing, industrial pursuits, fire protection, etc. But these laws have been supplemented by numerous particular enactments. In all its activity, the Committee is subject to the supervision of the Province President as superior authority. The above system of district administration is in effect throughout the whole of Prussia, with but very slight variations. The Hohenzollern lands constitute a District similar to those which are included within Provinces. The City of Berlin, however, has a different organization for the administration of the matters elsewhere intrusted to the District authorities. 1 The District President is replaced by the Province President of Brandenburg for purposes of state supervision over the Municipal Corporation, but his other functions are in general exercised by the Police President of Berlin. There is a District Committee similar to that in other Districts, the chairman of which is designated by the King from among the higher officials active in Berlin. The four lay members are chosen by the Magistrat and City Council sitting as a body under the Mayor. The jurisdiction of the Berlin District Committee includes iL.V. G.42ff. THE ORGANS OF ADMINISTRATION 105 the functions of the Committees elsewhere when acting as administrative court and such of the administrative functions as are specially assigned to it by law. Other- wise, the Province President exercises the latter functions. As regards church relations, the Police President replaces the second department 1 of the District "Government," and the third department is replaced by a special board for direct taxes. The Districts were not made the basis of a local admin- istration by a public corporation, as were the Provinces and Circles. They remained divisions of state adminis- tration only, except in the one province Hessen-Nassau. Here each of the two divisions, belonging before 1869 to different principalities, was constituted not only a District for state administration, but a unit of local administration with an organization and a jurisdiction resembling that of the Province Corporations. 2 CIRCLE ORGANIZATION State Administration By the order of 1815, constituting the Provinces and Districts as administrative subdivisions of the State, it was provided that each District be composed of " Circles." "Circles" were ancient territorial divisions of the feudal organization which continued as rural 1 See ante, p. 101. 2 Law of June 8, 1885 (G. S. p. 242). 106 PRINCIPLES OF PRUSSIAN ADMINISTRATION administrative units during the seventeenth and eigh- teenth centuries. The existing boundaries were to be retained as far as feasible in the redistricting under- taken in 1815, but the Circle organization was to be extended to the entire State, including both Cities and rural territory except that the more important Cities were to constitute Circles for themselves. Thereby were constituted the two classes of Circles, Rural Circles (Landkreise) and City Circles (Stadtkreise) with distinct organization. The present organization of the circle authorities for state administration is based 'principally on the Circle Government Act of 1872 1 for the Eastern Prov- inces, excepting Posen, enacted for the remaining Prov- inces 1884-1889, and on the General Administration Act of i883, 2 for the same Provinces as the act of 1872 and extended in the same way to the other Provinces. The organs of state administration for Rural Circles are the Circle Director (Landrat) and the Circle Com- mittee (Kreisausschuss). The Circle Director, an officer whose title reaches back to the sixteenth century, is appointed by the King. 3 His functions are in general 1 Dec. 13, 1872 (G. S. 1872, p. 661). 2 L. V. G. 1883. 8 Kr. O. Dec. 13, 1872, 74. An historical characteristic of the earlier function of the Landrat as representative of the local Circle organiza- tion, perdures in the right of the Circle Assembly to nominate properly qualified candidates for this office from among those resident in the THE ORGANS OF ADMINISTRATION 107 to direct all affairs of internal administration, so far as not intrusted to other organs, and, in particular, to act as the central police authority for the Circle and its subdivisions. 1 His police measures require the approval of the Circle Committee. He is also state officer for military tax administration in the Circle. The Circle Director is a member and chairman of the Circle Com- mittee, acts as its executive organ and exercises together with it extensive control over the local administration of the circle subdivisions. In his capacity as executive organ of the Circle Committee, the Circle Director becomes an organ of lojcal administration to the extent that the Committee deals with affairs of the Circle Cor- poration. 2 The system of lay participation in state administration has been applied to the Circle organization in the con- stitution of the Circle Committee (Kreisausschuss). This body, originally an organ of the local administra- tion only, was by the Circle Act of 1872 charged with extensive functions of state administration also, which activity has been continually enlarged in scope by later legislation. The Circle Committee 3 comprises the Circle Director, Circle for at least a year or owning realty therein for the same period. Furthermore, the Circle Assembly is empowered to appoint two sub' stitutes for the term of six years each. Kr. O. 74, 75. 1 Ibid. 76-78. L. V. G. 3. 2 See later, p. 112. * Kr. O. 1872, 130 ff. 108 PRINCIPLES OF PRUSSIAN ADMINISTRATION as chairman; and six non-professional members elected by the BiatfMt Assembly for six years, one-third going out of office every two years. Eligible to the Committee is every member of the Circle Corporation who owns realty or mines or follows an industrial pursuit therein and is an independent 1 German citizen in full possession of his political rights. Certain classes of persons are excluded from membership, such as divines, teachers in elementary schools and church wardens. Judicial officers can become members only with consent of the Minister. The members of the Committee may be removed from office by the regular disciplinary pro- ceeding. The Committee meets upon convocation by the Circle Director, who is responsible for the prompt disposal of business in the Committee. Its functions as organ of state administration are (a) to give advisory opinions on all matters submitted to it for that purpose by the state authorities, and (b) to exercise such active admin- istrative functions as may by law be assigned to it, either acting alone or in conjunction with the Circle Director. This has been done in large measure, partly by transferring to the Circle Committee many powers formerly belonging to the District " Governments," 1 "Independent" means (as in the case of other electoral qualifications) twenty-one years of age and not limited in his property rights by judicial action. THE ORGANS OF ADMINISTRATION IOQ and partly by the addition of new branches of adminis- trative activity. 1 Not only is the Circle Committee an active organ of administration, but also, like the District Committee, an administrative court. It is the court of first instance for this function and will be considered in this connection elsewhere. 2 In its originally single character as organ of local administration it will be treated in the considera- tion of the Circle Corporation for local administration. 3 These general provisions for the administration of Rural Circles are somewhat modified with reference to Cities of a certain size not constituting Circles for them- selves and hence falling within the territory of a Rural Circle. These are not subject to supervision with reference to their functions either as organs of local administration or as agents of state administration on the part of the Circle Director and Circle Committee, as are the Rural Communes, but on the part of the next authorities, the District President and District Com- mittee. 4 For purposes of state administration in Cities of over 10,000, which do not constitute a City 1 These provisions concern the regulation of poor support, quartering of soldiers, public highways, drainage and streams, dikes, gaming and fishing, industrial undertakings, etc., as well as supervisory powers over the lower organs of local administration and are contained (to a consider- able extent) in the general distributive law of 1883 (Zustand. G. Aug. 30, 1883; G. S. 1883, p. 237) and a variety of particular enactments. The members receive a reimbursement for expenses, as fixed by act of the Assembly. 2 Cf. p. 176. 3 See p. 112 ff. 4 Zust. G. 1883, 7. 110 PRINCIPLES OF PRUSSIAN ADMINISTRATION Circle, the executive board takes the place of the Circle Committee. Finally, as regards local police activities, a distinction is made, not indeed between Cities and Rural Communes within the Circle, but between Cities over 10,000 on the one hand and Rural Communes and smaller Cities on the other. Protests and complaints regarding police measures of the former are to be laid before the District President and the District Committee, respec- tively, instead of before the Circle Director and the Circle Committee, as in the case of similar measures of the smaller Cities and Rural Communes. The act of 1815 concerning the division of the State into administrative units provided that all considerable Cities with their urban environs be constituted Circles for themselves. 1 Under that provision, a certain number of the larger Cities were formed into separate City Circles. The Circle Act of 1872 then established general regulations for the organization of City Circles. This can occur in one of two ways. Firstly, Cities of over 25,000, exclusive of soldiers, are, upon their petition to the Minister of the Interior, to be declared as segre- gated from the Circle to which they belonged and as constituting a separate Circle. Secondly, in exceptional cases the King may act in the same way with reference to Cities of less than 25,000, after hearing granted to the Province Assembly. 2 * O. Apr. 30, 1815, 36, 37- 2 Kr- O. 1872, 4- THE ORGANS OF ADMINISTRATION III For the administration of state functions by the City Circles, a City Committee is provided in place of the Circle Committee. This City Committee 1 (Stadtausschuss) is composed of the Mayor as chairman and four members of the Magistrat, chosen by the Magistrat for the length of their term as members of the same. In those City Circles where there is no Magistrat, 2 the City Committee is composed of the Mayor and four members chosen for six years by the City Council from among the citizens. 3 The scope of activity of the City Committee is narrower than that of its analogy in the Rural Circle, in that many duties of the Circle Committee in state administration (control over Rural Communes and other rural local authorities, care of forests, etc.) do from their very nature not arise within the jurisdiction of the City Circles. Furthermore, the City Committee, though composed of local organs, has no functions of local administration to fulfil, for these are intrusted in the City Circles entirely to the regular organs of the City Corporation. Indeed, the chief function of the City Committee is that of acting as administrative court of first instance within the City Circle. Only slight variations in organization are to be noted in most of the other Provinces into which the Circle 1 L. V. G. 37. 2 Rhine Province, etc., see later, p. 144. 1 L. V. G. 38. 112 PRINCIPLES OF PRUSSIAN ADMINISTRATION administration was later introduced. 1 In Westphalia, Cities must have 30,000 ; 2 in the Rhine Province, 3 40,000 inhabitants before they are entitled to constitute a City Circle. More considerable variations are found in the Province Posen. There, the six lay members of the Circle Committee are appointed by the Province Presi- dent upon presentation by the Province Assembly, while the Circle Director is appointed without any such presentation. 4 In the Hohenzollern lands, practically the same or- ganization exists, but with different names Oberamts- bezirke instead of Kreis, Oberamtman instead of Landrat, Amtsausschuss instead of Kreisausschuss. 5 Berlin constitutes a separate City Circle not within the limits of any other administrative subdivision. 6 Circle Local Administration Circles had been constituted corporations for local administration by the legislation of the early twenties, just as the Provinces had been. Like the Provinces, too, they were organized on the class system, but given comparatively narrow powers until the reform legislation 1 For the variations in all provinces except Posen, cf. Stier Somlo, 949. 2 Law of July 31, 1886 (G. S. 1886, p. 217, 4), S. S. p. 963. 8 Law of May 30, 1887 (G. S. 1887, p. 209, 4), S. S. p. 968. 4 Law of May 19, 1889 (G. S. 1889, p. 108 ; Arts, iv and v, B). 6 O. Apr. 2, 1873 ; July 2, 1900 (G. S. 1900, p. 228). L.V. G. 41-47- THE ORGANS OF ADMINISTRATION 113 in 1872 established them on a broader basis with wide powers of local administration. 1 By the terms of this Circle Act of 1872 and its emenda- tions, each Circle not only constitutes a subdivision for state administration, but a corporation for the manage- ment of local affairs. Its boundaries are determined and changeable by law only, except when resulting from a change of boundaries of the lower administrative sub- divisions. 2 All residents within the Corporation are members there- of, excepting the active military, and as such are entitled to participate in the management of the public affairs of the Corporation and to a co-user in the public es- tablishments and institutions of the same. The members are obliged to serve, but not more than three years, in the unsalaried public offices of the Corporation, unless prevented by sickness, old age (over 60), external business, the duties of a state office or by special circumstances ac- cepted as good and sufficient excuse by the Circle Assem- bly. Failure to fulfil one's duties in this regard may result in loss of right to a voice in the circle administra- tion and up to 25 per cent increase in one's ordinary taxes. The Circle Corporation is empowered to pass by-laws, 1 Kr. O. 1872, Dec. 13 (G. S. 1872, p. 661). J So for instance the detaching of Cities of over 25,000 inhabitants by order of the Minister of the Interior, or of smaller cities by royal order, from existing Circles to constitute individual Circles for themselves, is an instance of change of boundaries by administrative proceeding. 114 PRINCIPLES OF PRUSSIAN ADMINISTRATION so far as permitted or directed by law, and otherwise concerning its local affairs so far as not regulated by law. Furthermore, the Corporation may pass regulations for the management of circle establishments. The organs of the Rural Circle Corporation are the Circle Assembly (Kreistag), the Circle Committee (Kreisausschuss) and the Circle Director (Landrat). City Circles have no special organs for functions of the Circle Corporation, as these are all exercised by the regular city authorities, nor do the above provisions as to membership in the Circle Corporation and as to rights and duties of members apply to City Circles. 1 The Circle Assembly 2 is composed of at least twenty- five members 3 chosen by a complicated three-class system of voters. The first class is composed of owners, both persons and corporations, Jof .rural realty who pay a certain minimum real property tax within the Circle, as well as those owners of industries or mines in the rural ar^as.who pay a certain minimum industry tax. The second class of voters comprises all Rural Com- munes within the Circle as well as all owners of autono- mous rural estates and of industrial undertakings not to belonging to class one. The third class comprises all Cities within the Circle. 1 Kr. O. 169. 2 Ibid. 84-129. For every 5,000 inhabitants above 25,000 and less than 100,000; and for every 10,000 above 100,000, one additional member. THE ORGANS OF ADMINISTRATION 115 The total number of representatives in the Circle Assembly is distributed among the three classes of voters as follows: The Cities are entitled to a number of representatives in proportion to their population, with this limitation that the total number of city repre- sentatives may not exceed one-half of the entire number of representatives. In Circles comprising only one City, the proportion may not exceed one- third. The remain- ing number of seats is divided equally between the first and second class of voters, with the provision that if the number of seats falling to class one exceeds the number of voters therein, the excess of seats falls to the second class. For the polling of the votes in the first class, all mem- bers of the same who are independent German citizens over twenty-one years of age and in full possession of their rights as citizens, meet in person or through proxies under chairmanship of the Circle Director and vote directly for their representatives. The election in the second class is indirect through electors from each of the Rural Communes, chosen ac- cording to their population by the Commune Assembly and Executive. These electors, together with the other voters in their class, meet and vote under the supervision of the Circle Director. In the cities, the representa- tives are chosen directly by the City Council and the Magistrat. Il6 PRINCIPLES OF PRUSSIAN ADMINISTRATION The qualifications for members of the Circle Assembly are, for the city representatives, residence in the City and possession of rights as citizens ; for the other two classes, residence within the Circle for one year and ownership of rural realty or possession of the right to vote within the respective subdivision. The election is for six years, one-half of the representatives of each class going out of office every three years. Election protests may be entered before the Election Board by any voter, with the possibility of removal to the District Committee. The legislative jurisdiction of the Circle Assembly, like that of the Province Assembly, is not an enumerated but a general one, extending to all matters of local con- cern not otherwise regulated, as well as to such other matters assigned to it by law. In particular, its function is to pass the circle statutes and regulations, to deter- mine the manner of raising state revenue within the Circle, so far as not regulated by law, to provide for the meeting of necessary or desirable circle expenses by means of public capital, loans or taxes, to pass the circle budget and pay the accrued obligations, to establish and regulate the local circle offices, to choose the circle Committee and special Boards or Commissions and to render an advisory opinion on all matters submitted to it for this purpose by the state authorities. The Circle Assembly is convened for the business indicated on the notice of convocation by the Circle THE ORGANS OF ADMINISTRATION 117 Director, who acts as chairman of the same and directs its deliberations. For special financial matters, a careful notice must be prepared by the Circle Committee and sent to each member two weeks before convening. The meetings are ordinarily public and a majority constitutes a quorum. Members of the Circle Committee who are not also members of the Assembly may take part in the consideration of questions before the assembly, but with- out a voice in the voting. The budget is prepared by the Circle Committee and passed by the Assembly, which, at the same time, re- ceives the annual reports of the Committee concerning the circle administration. A copy of the budget, as passed, and of the report must be submitted to the District President. The Circle Committee, whose organization was de- scribed in considering it as an organ of state adminis- tration, acts as administrative body for the local Corpora- tion also. In this capacity, it prepares the measures to be adopted by the Assembly and is charged with their execution, so far as special commissions or single officers are not provided for by law. It administers all concerns of the Corporation as determined by the Assembly and in conformity with the budget established by the latter. Finally, it appoints all officers of the Corporation and directs and supervises their activity. Just as the Circle Committee is both a state and local Il8 PRINCIPLES OF PRUSSIAN ADMINISTRATION organ, so the Circle Director acts both as head of the state administration in the Circle and at the same time is executive for the local organization. As chairman of the Assembly, he is a factor in the general legislative activities; and as chairman and member of the Com- mittee, he is engaged in the active administration. So he represents the Committee in its relations with other authorities and private individuals, directs the official correspondence and 'signs the same in the name of the Committee. Members of the Committee are disqualified to vote in matters in which they have an interest. It is within the competence of the Assembly to provide special commissions or officers for the administration of particular institutions or other circle matters. In that case, these organs are under the direction of the Circle Director, who may at any time act as chairman with the right to vote. The members may receive a per diem and travelling expenses as fixed by the Circle Assembly. 1 The expenses of the Circle Corporation, like those of the Province Corporations, are to be met out of the J The only important variation from this general system of local circle administration as inaugurated in 1872 and later enacted for all the Provinces save Posen, occurs in the last-named Province, where the old class system of 1828 is still at the basis of the Province Assembly. According to the law of that year (L. Dec. 20, 1828 (G. S. 1829, p. 3)), all owners of the Manorial Estates are members, each City in the Cir- cle sends one representative and all Rural Communes together have three representatives. THE ORGANS OF ADMINISTRATION IIQ income of their capital, if any; out of fees and contri- butions; out of state subventions; and, finally, if those are not sufficient, out of taxes to be raised by the Corporations. 1 Fees and contributions may be collected, as in the case of the Provinces, for the use of circle public insti- tutions and establishments and for special financial advantages accruing as a result of the location of such institutions or establishments. State subventions are provided for the Circle Corporations as for Province Corporations, to help meet the expenses of the circle local government, 2 and for the special functions imposed by law on the Circles. Furthermore, the Circle Cor- poration receives certain license fees, such as hunting fee, storehouse fee and innkeepers and liquor fee. To the extent that these sources of income are insuffi- cient to meet the expenses of the Corporation, certain taxes may be levied, both indirect and direct, but the latter only to the extent that the former are insufficient. The indirect taxes which may be levied are on the (i) ac- quisition of realty or rights in realty, except by inherit- ance, eminent domain and gifts between lineal relatives ; (2) on receipt of permit to run an inn or a retail liquor business; (3) on the keeping of dogs. Direct 1 Law of Apr. 23, 1906 (G. S. 1906, p. 159). 2 Law of April 30, 1873 (G. S. 1873, p. 187). Law of July 8, 1875 (G. S. 1875, P. 497, 26). 120 PRINCIPLES OF PRUSSIAN ADMINISTRATION taxes are levied upon the Communes and Manorial Precincts in the Circle, on the basis of the income taxes within the same. The localization of the burden in the case of undertakings to the particular benefit of certain portions of the Circle may be ordered by the Assembly. The taxes assessed by the Assembly must be paid into the circle treasury within a time fixed by the Circle Committee. A protest may be entered before the latter concerning the distribution of the tax burdens, with the right of complaint to the District Committee. Failure to conform to the tax ordinances of the Circle Assembly may be made punishable by fine up to 30 Marks, the amount to be determined in each case by the Circle Committee. Enactments of the Circle Assembly affecting contri- butions, indirect taxes, inequalities in taxes, the levying of direct taxes amounting to more than 50 per cent of the taxes used as basis, and realty tax on the basis of valua- tion must all be approved by the District Committee. The approval of those Assembly enactments affecting the indirect circle taxes and the levying of a direct tax exceeding 50 per cent of the taxes used as basis must be confirmed by the Ministers of the Interior and of Finance, or by the Province President, if authorized thereto by the Ministers. State control over local administration in Rural THE ORGANS OF ADMINISTRATION 121 Circles is exercised in several ways. 1 In the first place, certain acts of the Assembly require for their validity approval by superior state authorities. So circle statutes must be approved by the Crown ; certain kinds of tax measures, by the Ministers of the Interior and of Finance; and a third class of enactments, by the Dis- trict Committee. These latter include alienation of circle realty or rights in realty, the incurrence of debts or the standing as surety and the imposing of certain burdens for a period of more than five years. Secondly, the general supervision is exercised by the District President and Committee in the first instance and by the Province President and Council in the superior and the last instance. Protests must be entered within two weeks. The controlling authorities are charged with the duty of seeing that the circle adminis- tration is carried on legally and efficiently and may to that end solicit information, examine records and docu- ments and institute audits at any time. Acts of the Assembly, of the Special Commissions or of the Com- mittees in local matters which exceed their jurisdiction or otherwise violate the laws, are to be called in ques- tion with suspensive effect by the Circle Director, who must state his reasons therefor. Against such action on the part of the Circle Director, the body affected may lodge a complaint with the District Committee. iKr. O. 1 76-180. 122 PRINCIPLES OF PRUSSIAN ADMINISTRATION Failure of the Circle Corporation to provide for the obligatory expenses legally imposed upon it may be met by the action of the District President in entering the same upon the circle budget in the case of ordinary expenses, or in providing especially for them, in case of extraordinary expenses. Complaint against his action may be lodged by the Circle before the Supreme Administrative Court (0. V. G.) within two weeks. 1 Finally, the Circle Assembly may be dissolved, upon motion of the Ministry of State, by royal order. This must be followed by new elections within six months. The existing Circle Committee and Special Commis- sions remain active in that case until after the new elections. The state supervision over local circle administration in the City Circles is exercised by the same authorities that supervise the management of the affairs of the City Corporation, except for Berlin, which has special super- visory authorities. Precinct Administration Though the hierarchical organization of state admin- istration does not extend below the Circle for the whole of Prussia, there was a still lower rural subdivision 1 Zust. G. 4. THE ORGANS OF ADMINISTRATION 123 created in the Circle Act of 1872 for the Eastern Prov- inces, except Posen, and extended with modifications to the other Provinces, except Hessen-Nassau and Han- nover. The purpose of this new class of authorities was to solve the problem of lower police administration up to then exercised by Royal Commissioners. This area of rural state administration is the Police Precinct (Amtsbezirk). 1 They were temporarily formed by order of the Minister of the Interior, based on the proposal of the Circle Assembly after hearing the interested parties. The final fixing of their boundaries was deter- mined by the Minister of the Interior in collaboration with the Circle Committee after hearing the interested parties and the Assembly. The principles governing the formation of the Pre- cincts were that each should comprise a closed com- pact area of a size that should permit a direct admin- istration by honorary officials and yet large enough to insure the performance of the duties imposed upon it by law. Generally the Police Precincts are composed of several Communes and Manorial Precincts geographi- cally connected, but smaller Communes may also be con- stituted separate Police Precincts at their own request, if they are able to conduct the affairs of such a district and if geographical considerations do not necessitate the joining of other Communes or Manorial Precincts. 1 Kr. O. 21-73. 124 PRINCIPLES OF PRUSSIAN ADMINISTRATION Even single Manorial Precincts may at their request be constituted separate Police Precincts if geographically adapted to that end. The functions of the Police Precinct are purely state, not local functions, and com- prise the so-called police administration. The organs of precinct administration are the Pre- cinct Director (Amtsvorsteher) and the Precinct Com- mittee (Amtsausschuss) . The former is appointed for six years by the Province President from a list pre- pared by the Circle Assembly, or, upon its failure to act, by the Province Council. In Police Precincts consisting of only one Commune or Manorial Precinct, the Commune or Manorial Director is at the same time Precinct Director. In case no suitable person is pro- posed by the Circle Assembly, the Province President appoints a Commissioner to act as such. The duties of the Precinct Director are to exercise police powers over matters of public safety, order, morals, poor relief, health, highways, streams, fields and forests, industrial pursuits, buildings, fire protection, etc., so far as not otherwise provided by law, and to administer other public concerns intrusted to him. He has the right and duty to take the necessary steps for main- taining public order, quiet and safety and to issue by and with the consent of the Precinct Committee neces- sary police ordinances. He may also impose penalties provisionally subject to judicial review. The Precinct THE ORGANS OF ADMINISTRATION 125 Director may issue orders to the Commune and Manorial Directors which they may be compelled to follow, but he has no power to inflict disciplinary punishments. He is the administrative supervising authority over the Precincts, with appeal to the District President. His police orders must be obeyed by the gendarmes also, though he is not their administrative superior. On the other hand, the aid of the Precinct Director may be required by the Circle authorities for the performance of their functions. The Circle Director as chairman of the Circle Committee exercises the administrative con- trol. The Precinct Director is entitled to reimburse- ments for official expenses to an amount fixed by the Circle Committee. The expenses of precinct adminis- tration are to be met out of state subventions except where a single Commune or Manorial Precinct consti- tutes a Police Precinct and precinct taxes, so far as necessary. The Circle Director may compel the taking of the measures necessary to meet the obligatory expenses. By the side of the Precinct Director stands the Pre- cinct Committee, composed of at least one representa- tive from each Commune and Manorial Precinct within the Police Precinct. The number of representatives from each of the smaller divisions is determined by act of the Circle Assembly on proposal of the Circle Com- mittee. In those Precincts comprising but one Com- mune, the duties of the Committee are discharged by 126 PRINCIPLES OF PRUSSIAN ADMINISTRATION the Commune Assembly. In those Police Precincts comprising but one Manorial Precinct, there is no Pre- cinct Committee. The duties of the Committee include the control of all expenses and sanctioning of those raised by the Precinct, the approval of police measures of the Precinct Director, the right to be heard as regards changes of the Precincts, the appointment of Special Commissions or officers for preparing its determinations and action on matters submitted to it by the Precinct Director. Illegal acts of the Committee may be sus- pended by the Precinct Director, subject to appeal to the Circle Committee. In the other Provinces, the organization of the lowest state authorities for police purposes has suffered a variety of modifications, except in Schleswig-Holstein, where it is virtually the same as in the six Provinces into which it was first introduced. 1 In Westphalia, the Precincts, and in the Rhine Prov- ince, the Rural Mayoralties (Landburgermeistereien) correspond to the Police Precincts in the Eastern Prov- inces, but exercise in addition powers of supervision over the Communes and are furthermore areas for local administration. The Director is in practice a salaried official and appointed for life. 2 1 Law of May 26, 1888 (G. S. 1888, p. 139). 2 Kr. O. for Westphalia, July 31, 1886 (G. S. 1886, p. 217). Kr. O. for Rhine Province, May 30, 1887 (G. S. 1887, p. 209). THE ORGANS OF ADMINISTRATION 127 In Posen, there are no such divisions, but their func- tions are fulfilled by Commissaries (Distriktskommis- sarien). 1 In Hannover, the precinct organization has not been introduced, though it may at any time be established by royal order, upon petition of the Province Assembly. The police functions of the precinct au- thorities are exercised in Hannover by the Circle Direc- tor. 2 Finally, in the Province Hessen-Nassau also there is no subdivision corresponding to the Police Precincts. But there the functions of the Precinct authorities are exercised by the Commune officers, 3 and the same is true of the Hohenzollern lands, where no precinct organization exists. 1 O. Dec. 10, 1836 (v. Kamptz Annalen, XX, p. 943). 2 Kr. O. for Hannover, May 6, 1884 (G. S. 1884, p. 181). 3 Kr. O. for Hessen-Nassau, June 7, 1885 (G. S. 1885, p. 193). CHAPTER III (Continued) COMMUNE GOVERNMENT THE organization for local administration does not stop with the Circle Corporations, but includes still lower subdivisions, the Communes (Gemeinden), the Manorial Precincts (Selbstandige Gutsbezirke) and Unions of these (Zweckverbande and Samtgemeinden). Communes are of two kinds, Rural Communes (Land- gemeinden) and Urban Communes or Cities (Stadt- gemeinden), whose organization and functions are deter- mined by separate enactments. The general principles governing the system of commune local government were first laid down in the city government acts and then applied to the Rural Communes as well. City Communes The organization of city government in Prussia re- ceived its broad foundations in the City Government Act of 1808, prepared and put into force by Baron von Stein. This constituted a uniform system for the whole of Prussia at that time, but it was not extended in 1815 to the territories then acquired and reacquired, which 128 THE ORGANS OF ADMINISTRATION I2Q retained their individual systems. In its revised form, this act was extended in 1831 to Posen, Saxony and West- phalia. Then, in 1853, a uniform act 1 was passed for the seven Eastern Provinces, 2 superseding the earlier laws, but based upon them, which act, with later amend- ments, determines the city organization in those Prov- inces to-day. A virtually identical law was enacted for the Province Westphalia, i856, 3 and, much later, for Hessen-Nassau, 1897,* while variations of greater or less extent exist in the other Provinces. The determination as to whether a Commune is a Rural or a City Commune is conditioned by historical considerations. The act of 1853 * s declared to be appli- cable to those Communes which have had a representa- tive as Cities in the Provincial Assemblies and to such other Communes as had been governed by the prior city acts of 1808 and of 1831. New Cities may be created by royal order, either out of localities not previously provided with any Commune organization or out of Rural Communes. In the first case, the Province Assembly must be heard ; 5 in the 1 Stadte O. May 30, 1853 (G. S. 1853, p. 261), S. S. p. 517. 2 The Cities in New Nearer Pomerania and the Isle of Riigen were specially excepted in the act, i and 3, and were made the subject of a special law, G. May 31, 1853 (G. S. 1853, p. 291). 8 March 19, 1856 (G. S. 1856, p. 237), S. S. p. 571. 4 August 4, 1897 (G. S. 1897, p. 254), S. S. p. 617. 6 St. 0. 1853, i and 2. 130 PRINCIPLES OF PRUSSIAN ADMINISTRATION second case, the Commune itself must petition for the change and both Circle and Province Assemblies must be heard. In the same way, Cities may be changed into Rural Communes. 1 The territory of a City may be altered through ad- ministrative proceedings in various ways. 2 If territory is to be added which does not already belong to a Rural Commune or a Manorial Precinct, this is done by act of the District Committee, after hearing granted to the parties in question and to the Circle Assembly. Secondly, entire Rural Communes or Manorial Precincts may be incorporated into a City, both parties being willing, by royal sanction, after hearing granted to the parties concerned, to the Circle Assembly and to the District Committee. If the parties concerned cannot agree, their consent may, in case public good demands it, be replaced by determination of the District Committee, after obtaining the opinion of the Circle Assembly. This determination may be protested to the Province Council and its decision in turn may be protested by the Province President to the Ministry of State for final determination. The separation of parts of a Rural Commune or Manorial Precinct and then annexation to a contiguous City, or vice versa, may take place by order of the Dis- 1 Landgemeindeordnung, July 3, 1891 (G. S. 1891, p. 233, i). 2 St. O. 2. Amended by Zust. G. 8, i, by L. G. O. 2, 3. THE ORGANS OF ADMINISTRATION 131 trict Committee after obtaining the opinion of the Circle Assembly. This may be done with the consent of all parties concerned, including the owners of the land in question, or without such consent if the public good demands it. Against such determination the same protest may be entered as in the previous case. Public good, in the sense here used, is decisive only if the Rural Communes or Manorial Precincts are incapable of ful- filling their public duties, or if a Manorial Precinct has been split up in a way to necessitate the incorporation of urban portions thereof into a City, or if geographical considerations have caused conflict of interests not reconcilable by other means, such as the formation of special Unions. The regulation of the relations of the parties concerned in such cases is intrusted to the Dis- trict Committee, to be guided by the principles laid down in the act regarding public burdens and public property. Private rights or legal relations are not affected by such changes. All residents of the City, except active members of the military service not domiciled therein, are members of the Corporation. As such, they are entitled to a co- user in the public institutions of the same and bound to contribute to the City's burdens. The right of citizenship (Biirgerrecht) includes the electoral franchise, the right to be elected to the City Council and to hold unsalaried administrative offices in the City, which 132 PRINCIPLES OF PRUSSIAN ADMINISTRATION rights are at the same time legal duties. The rights and duties exist for every independent German twenty- four years of age who has for the space of one year past resided within the City and either owned a living house, pursued a permanent trade independently as chief means of income within the same or been assessed at a minimum income tax, and provided he has received no public poor relief, has paid his city taxes and has not been deprived of his political rights through a crimi- nal conviction. A citizen loses his political rights temporarily during bankruptcy proceedings. By special act of a City, its political rights may be- fore the expiration of a year be conferred upon an in- habitant coming from another City where he was in possession of the local political rights. City Communes are public corporations with a legal right to the local administration of their corporate affairs as determined by the act. They have general power to pass special ordinances, relating to such local affairs of the corporation and to those rights and duties of its members, concerning which variations are permitted or which are not specifically mentioned in the act. But* these ordinances must be approved by the District Committee. 1 The organs of the City are the City Council (Stadt- verordneten Versammlung) and the Executive Board 1 St. O. 9, ii. THE ORGANS OF ADMINISTRATION 133 (Magistral) . The City Council is composed of from twelve to sixty or more members, according to the size of the City, or as may be determined by local stat- ute. They are chosen by the city electorate, divided for that purpose into three classes, according to the direct, state, province, district, circle and city taxes paid. 1 The first class contains those beginning with highest taxpayer, in descending order, the sum of whose taxes constitutes one-third of the total taxes paid. The second class begins in the same way with the highest taxpayer not included in the first class and comprises all those below until the total paid by that class also amounts to a third, and the third class comprises the smallest tax- payers, whose payments amount likewise to a third of the tax total. Each of these three classes of voters elects one-third of the Councilmen, not necessarily from among the members of the particular class. In Cities of over ten thousand inhabitants, the third class is com- posed of voters who pay less than the average tax. Those who pay more than that average are then divided into the first and second classes, according to the system above described. These Cities may, however, introduce certain modifications by city ordinance, as provided in the act. Voting districts may be provided, when desirable, by order of the Magistrat. 1 Law of June 30, 1900 (G. S. 1900, p. 185), S. S. p. 720. 134 PRINCIPLES OF PRUSSIAN ADMINISTRATION Membership in the City Council is open to the qualified voters, but one-half of the members elected by each class must be real property owners. The following classes of persons, moreover, are ineligible to the City Council : (a) officials and members of bodies that are organs of state supervision over the City ; (b) members of the Magistrat and all salaried city officers ; (c) divines, church officials and primary teachers ; (d) judicial officers ; (e) State's attorneys and police officials. Furthermore, father and son, or brothers cannot be members of the Council simultaneously and, if elected at the same time, the elder only can qualify. The Councilmen are elected for six years, one-third going out every .two years. For the elections, a list of qualified voters is kept by the Magistrat and corrected annually in July. 1 For two weeks thereafter, the list is publicly displayed and during that time every resident may enter objections concerning the correctness of the list with the Magis- trat. The validity of such protests is passed upon by the Council. Against its determination, complaint may be entered before the District Committee. The regular biennial elections occur in November. For purposes of election, the Magistrat may, if deemed necessary, constitute election districts and determine according to population the number of Councilmen to be elected in each. 1 This date may be changed by local statute. THE ORGANS OF ADMINISTRATION 135 Two weeks before election, the listed voters are notified of the same, indicating the place in which and the day and hours of the day on which the votes are to be cast before the Election Board. The voters of the third class vote first, then those of the second, then those of the first. The Election Board consists of the Mayor and two Assistants chosen by the Council, with substitutes for each chosen from among the qualified voters. The voting is viva voce before the Election Board and consists in appearing personally and naming as many persons as there are places to be filled. Those persons are elected at the first voting who head the list in number of votes, provided they have received a majority of the votes cast. If the number of places to be filled exceeds the number of candidates who have received a majority of the votes, a second election is to be ordered within eight days to fill the vacant places. The list of candidates for the second election consists of those who received less than a majority of the votes in the first election, arranged in descending order and including twice as many names as there are places to be filled. In the second election, the highest standing candidates are chosen without the requirement of an absolute majority. The election results are prepared by the Election Board and published by the Magistrat. Objections to the va- lidity of the election may be raised by any qualified voter 136 PRINCIPLES OF PRUSSIAN ADMINISTRATION within two weeks after the election before the Magistrat. Such objections are considered by the City Council, against whose decisions complaint may be entered with the District Committee. The Council meets irregularly as often as its business demands or upon regular days, as it may determine, but in either case the business to be considered must be announced at least two days before the meeting. The Council elects each year a chairman and a secretary from among its own members. The Magistrat is to be invited to all meetings and repre- sentatives of the Magistrat may be required to attend. They have a right to be heard, but not to vote. The chairman convokes the Council, which he must do upon demand of one-fourth of the members or of the Magis- trat. A majority of the members constitutes a quorum, and a majority of those voting is necessary to valid action. The meetings are public, unless made secret by special motion. The Council frames its own rules of procedure, to be approved by the Magistrat. The functions of the City Council 1 are to decide all matters of local concern, so far as these are not assigned exclusively to the Magistrat, and to give advisory opinions on all matters submitted for that purpose by the state supervisory authorities. Matters not of local concern fall within the deliberative jurisdiction of the Council, only if specially assigned to the same by law 1 St. O. 35-55- THE ORGANS OF ADMINISTRATION 137 or by act of the supervisory authority. The Council is purely a legislating, not an executing authority. Determinations of the Council which are to be executed by the Magistrat must receive the approval of the same, which is, however, entitled to refuse it, giving the grounds for such refusal. If no agreement can be reached, even by means of a special committee, the decision of the question rests with the District Committee. The Council elects the Magistrat and controls the administration. To this end, it may take all necessary steps to assure itself of the proper execution of its determinations and of the legal disposition of City revenue. It determines the manner of employing the capital of the City. The consent of the District Com- mittee is required for the alienation of realty. The volun- tary sale of realty or rights in realty can take place only in the way of public sale including six weeks' notice and management of the proceeding by a judge or magis- trate, subject to the approval of the City Council. The consent of the District Committee is also required for the taking of loans that increase the indebtedness of the City, and for alterations concerning the use of city commons. The consent of the District President is required for the sale of or essential changes in things of particular scientific, historic or artistic value. The Council must pass upon the budget, which is prepared by the Magistrat. Obligatory items not pro- 138 PRINCIPLES OF PRUSSIAN ADMINISTRATION vided for in the budget may be inserted by the District President. The Magistrat 1 consists of the Mayor, the Assistant, or second Mayor, a number of unsalaried Aldermen (Schoffen) and the requisite number of salaried tech- nical officials, all elected by the City Council. The Assistant Mayor and Aldermen are elected for six years and the Mayor and professional members for twelve years. 2 The number of Aldermen varies from two to ten or more, according to the size of the City, and may be varied by local statute. One-half of the Aldermen go out of office every three years, but are reeligible. The following classes of persons are ineligible to the Magistrat: officers of state supervision, members of the Council and lower city officials, divines, church officials and public school-teachers, judicial officers, officials in the States, attorneys in office, police officials and persons pursuing certain named callings. 3 Further- more, near relatives are excluded, not only from simul- taneous membership in the Magistrat, but also from simultaneous membership in the Magistrat on the one part and in the Council on the other. The election of all members of the Magistrat must be approved by the District President, except that in 1 St. O. 29-34. 2 The Mayor and salaried members may also be elected for life. Law of Feb. 25, 1856 (G. S. 1856, p. 129). , 3 Law of Feb. 7, 1835 (G. S. 1835, p. 18). THE ORGANS OF ADMINISTRATION 139 Cities over ten thousand the approval of the choice of the Mayor and Assistants must be given by the King. The District President may withhold his approval only with the consent of the District Committee or of the Minister of the Interior. Against the refusal of the District President and District Committee, recourse may be had to the Minister. If he abides by the deter- mination of the lower authorities, a new election must be had. If the second election is not approved or if the Council fails to proceed to the election, or reelects the first officer, the District President may appoint a Commissioner to fill the office at the expense of the City, until an officer is elected whose choice receives the necessary approval. The Magistrat, as head of the local government and administrative organ, is charged with the following duties : 1 to execute the laws and ordinances, as well as administrative orders by which it is bound; to pre- pare the determinations of the Council, including the annual budget and to carry out such of them as it ap- proves. It must withhold approval when the action of the Council is ultra vires or illegal, or operates to the detriment of state or city interests. In that case, the Magistrat must suspend the action and give his reasons, against which proceeding the Council may lodge a complaint. The Magistrat further administers the city 1 St. o. 56-63. 140 PRINCIPLES OF PRUSSIAN ADMINISTRATION institutions or supervises such as are administered by special authorities. It administers also the city reve- nues as prescribed by the Council and acts as auditing body. It manages all city property, appoints, with the advice of the Council, and supervises all city officers, preserves all public documents, represents the City legally and directs the correspondence of the same, and assesses and levies the city taxes. / The Mayor directs and supervises the entire adminis- (trative procedure. He may, in urgent cases, act in place of the Magistrat and lay the matter before the same for approval at the next meeting. He is given a measure of independent disciplinary power over city officials. His special duties are to manage the local police, except when special royal authorities are charged therewith, 1 to assist the judicial police authorities and act as local State's attorney. He is furthermore the organ of state administration, both central and sub- ordinate, for the performance of state functions within the City. The Mayor and the other professional officials receive, in addition to their salary, a right to a pension as regu- lated by the act. 2 Special Commissions may be constituted for the run- 1 In 2 of the law for police administration (G. S. 1850, op. 265), the Minister of the Interior is empowered to establish state police organs in the more important cities. 2 St. O. 64, 65. THE ORGANS OF ADMINISTRATION 141 ning administration of certain branches of the city gov- ernment, or for temporary purposes. These Committees may be composed of members of the Magistrat alone, or of both Councilmen and members of the Magistrat, or also include other qualified voters. These Committees are subordinated to the Magistrat and are presided over by a member of the same appointed by the Mayor. 1 Berlin has a special state police organism (Polizei- prasidium) with powers extending over the territory of Greater Berlin. 2 The costs of the city administration are met out of the income from property, state or other subventions and from fees, contributions, indirect and direct taxes. 3 Taxes may be levied only so far as the other means of income are insufficient to meet the expenses, and direct taxes only after indirect taxes have proved insufficient. Industrial undertakings of the City, so far as not serving a public purpose not otherwise to be met, are to be run 1 Cities of less than 2500 inhabitants may, upon petition of the Council, with approval of the District Committee, alter the regular organiza- tion by a reduction in the number of Councilmen to six and by having in place of the Magistrat a single Mayor who is chairman of the Council, with the right to vote, assisted by two or three who may also be members of the Council. In case such an organiza- tion is adopted, the Mayor is clothed with all rights and duties of the Magistrat, except that he has not the rights to approve or withhold approval of the council acts. 2 Cf. Hue de Grais, p. 237, n. 5. 8 Kommunalabgabengesetz, July 14, 1893 (G. S. 1893, p. 152), S. S. p. 1020. 142 PRINCIPLES OF PRUSSIAN ADMINISTRATION in a manner to pay all expenses, including interest, and to redeem the capital. Fees include charges for use of public institutions, for building permits, for the super- vision of markets and public performances or amuse- ments. Contributions may be demanded of those per- sons financially benefited by city establishments. In- direct taxes may be levied within the limitations of the imperial tax laws, such as taxes on amusements, dog taxes, etc. Direct taxes are to be assessed equally on all concerned, and include real property taxes, trade taxes and income taxes. Certain classes of realty are exempted. The imposition of taxes occurs through local tax ordinances, which must be approved by the District Committee. The assessment of taxes is made by the Magistrat or by a special Tax Committee. Objections to tax assessments may be entered with the Magistrat within four weeks, and against the decision of the Magistrat complaint may be lodged before the District Committee with the right to revision by the Supreme Administra- tive Court. The organs of state supervision over city adminis- tration are in general the District President and the District Committee. 1 Many of their functions in this regard have already been referred to in presenting the jurisdiction of the city authorities. The District 1 Zustand. G. 7-21. THE ORGANS OF ADMINISTRATION 143 President, as supervisory organ, approves the choice of those city officials whose choice requires approval, sanctions the sale or alteration of city property which has particular scientific, historical or artistic value, compels the introduction of obligatory expenses into the budget, imposes disciplinary penalties upon city officials and passes on the imposition of such penalties by the Mayor, and orders the institution of disciplinary proceed- ings looking towards removal from office. The District Committee acts as supervisory body for determining changes in city limits and controversies arising from the same, the representation of separate communities within a City, the holding of special elections, the validity of elections of those city officials whose choice need not be approved, in place of the city authorities when these are rendered incompetent to act by reason of private in- terests of the officials or have been dissolved, and finally the manner of execution for compelling payments by the Cities and making good defalcations by city officials. The District Committee furthermore acts as adminis- trative court of first instance for all the controversies arising out of the city administration which may be taken to the administrative courts and which are not specifically otherwise provided for. As in the case of Province and Circle Corporations, so with Cities a final power of control exists in the right of the King to dissolve the representative organ, the 144 PRINCIPLES OF PRUSSIAN ADMINISTRATION City Council, upon motion of the Ministry of State. In this case also a new election must follow within six months after the dissolution. The City Government Acts for the other Provinces of Prussia all present variations of greater or less im- portance. Most similar to the act of 1853, which served as basis, are the acts for the Province Westphalia, 1856, for the Rhine Province, 1856, and for Hessen-Nassau, 1897. I n Westphalia 1 the mayorial organization op- tional for Cities under twenty-five hundred in the East- ern Provinces can be adopted by all Cities, irrespective of size, after two successive passages of a resolution by the Council and approval by the Circle Committee. In the Rhine Province 2 the mayorial system is the rule, and the Magistrat system, as the exception, must be specially adopted. In Hessen-Nassau, as in Westphalia, the mayorial system may be introduced into all Cities. Further variations are that two years of residence are there required for the acquisition of rights as citizens and that Mayors of Cities with less than twelve hundred are not as a rule salaried. The city Frankfort on the Main, though incorporated in the Province Hessen- Nassau, does not fall under the Province Act, but is governed by a separate enactment, 3 also modelled, how- 1 Law of March 19, 1856 (G. S. 1856, p. 237, 72), S. S. p. 571. 2 Law of May 15, 1856 (G. S. 1856, p. 406, 66), S. S. p. 546. 8 Law of March 25, 1867 (G. S. 1867, p. 401), S. S. p. 703. THE ORGANS OF ADMINISTRATION 145 ever, on the act of 1853. An important variation exists in that the three-class system of voting is not in use and that the Mayor is appointed by the King. In Frankfort alone among Prussian Cities, the elections are by secret ballots. In Schleswig-Holstein 1 likewise the voting is not according to the three-class system and the Council and the Magistrat as a rule meet jointly. The most widely divergent provisions as to City gov- ernment are found in the Province Hannover, where the revised Hannoverian City Government Act of 1858 2 is still in force. There citizenship must be ob- tained by grant from the Magistrat and is not acquired as elsewhere ipsojure through the fulfilling of certain pre- requisites. Necessary to obtaining the citizen's status, is either ownership of a house, the independent practice of an artistic profession, or the pursuit of a science or permanent industrial trade and residence within the city. The members of the Magistrat are elected for life by the existing members voting jointly with an equal number of Councillors. The Councillors (Biirger- vorsteher) are elected by all qualified voters without division into classes. For the performance of certain classes of acts, the Magistrat and Council meet jointly as in Schleswig-Holstein. Finally in Hohenzollern, the two Cities Sigmaringen 1 Law of April 14, 1869 (G. S. 1869, p. 589), S. S. p. 671. J Law of June 24, 1858 (Hannov. G. S. 1858, p. 141), S. S. p. 591. 146 PRINCIPLES OF PRUSSIAN ADMINISTRATION and Hechingen are governed by the act of iQOo, 1 passed for the Rural Communes. Rural Communes For all Communes which are not Cities, the organiza- tion is determined by Rural Commune Acts. Here again the most important act is the Rural Commune Act for the seven Eastern Provinces, 2 which served also as model for the organization laws in the Province Schles- wig-Holstein 3 and in Hessen-Nassau. 4 The Provinces Westphalia, Rhine Province and Hannover are dealt with in somewhat different enactments. The provisions contained in the Rural Commune Act are, for the most part, the same as, or at least very similar to, those enacted for City Communes. So the incor- poration into Rural Communes of territory not belong- ing to other Communes, or of parts or the whole of other Communes or Manorial Precincts or the separation of territory, etc., all take place by the same manner of pro- ceeding as in the case of City Communes. The legal nature and general jurisdiction of the Rural Commune is moreover the same as that of the City. 5 Membership 1 G. July 2, 1900. S. S. p. 882. 2 L. G. O. July 3, 1891 (G. S. 1891, p. 233). 3 Law of July 4, 1892 (G. S. 1892, p. 147), S. S. p. 791. 4 Law of Aug. 4, 1897 (G. S. 1897, p. 301), S. S. p. 617. 6 L. G. O. 5, 6. THE ORGANS OF ADMINISTRATION 147 in the Corporation is determined in the same way by residence and the rights and duties of members are the same, as for inhabitants of City Communes. The political rights of the citizens are conditioned in the same way also, except that the Rural Communes may require a grant of citizenship. The electoral franchise is conferred also upon all who satisfy a minimum prop- erty requirement, including corporations or other legal persons, the state exchequer, and women. The organs of Rural Commune government, similar to those of Cities in the Rhine Province, are the Commune Assembly 1 (Gemeindevertretung) and the Commune Director (Gemeindevorsteher). The Assembly com- prises the Commune Director as chairman and his Assistants and from 3 to 24 elective Assemblymen. The voting for the Assemblymen is according to the three-class system, as in the Cities, and the proceeding is quite the same. The qualifications and disqualifications for Assembly- men are the same as those for City Councillors, but two- thirds of the members of the Assembly must own prop- erty within the Commune. The term is six years as for Councilmen. The functions of the Assembly are the 1 In Communes where there are less than forty voters, the Assembly is not a representative body, but a meeting of the voters, of whom two- thirds must be property owners. The voters are then given plural votes up to four in number according to the real property taxes paid within the Commune. L. G. O. 148 PRINCIPLES OF PRUSSIAN ADMINISTRATION same as those of the City Councils, both with regard to the general scope of local functions and to the obligatory performance of duties imposed by law. The active administration is carried on by the Com- mune Director (Gemeindevorsteher) and from two to six Assistants (Schoffen), unsalaried officials elected for six years by the Assembly from among its own mem- bers. In larger Communes, the Director may be a salaried official, elected for twelve years, and so may the Assistants be when this is found necessary. The election must be approved by the Circle Director. The duties of the Commune Director are in general the same as those of the Mayor in Cities of less than 2500 with the special mayorial organizations. A collegial Directorate, com- posed of the Director and Assistants, corresponding to the Magistrat in Cities, may be introduced in the larger Communes by local by-law, in place of the single director system. The revenue system of the Rural Commune is regulated by the same law 1 as that governing the Cities, the provi- sions of that law being applicable to all Communes. The state supervision over Rural Communes 2 is virtually the same in nature and extent as that over City Communes, but is exercised by different organs, in that the Circle Director acts in the place of the District President and the Circle Committee in place of the District Committee. 1 Komt. Abg. G., July 14, 1893. 2 Zu st. G. 24-37. THE ORGANS OF ADMINISTRATION 149 Whereas in the Rural Commune Acts for Schleswig- Holstein 1 and for Hessen-Nassau 2 only minor variations are to be noted from the general system above described, more considerable departures are to be found in the other three Provinces. In Westphalia, the Rural Commune organization is regulated by act of 1856* The most important varia- tion consists in the organization of Precincts (Amter) composed of one or more Communes, which play a considerable part in communal administration for local affairs of interest to more than one Commune. The Precinct, at the head of which stands the Amtman ap- pointed by the Province President, may be endowed with all the powers and characteristics of a Commune, besides being an organ of state administration. A similar institution is found in the Rhine Province, where the compound communes are called Mayoralties (Biirger- meistereien) with a rural Mayor (Landbiirgermeister) at the head. In both Provinces, therefore, a considerable part of the functions of the Rural Commune are trans- ferred to the composite Commune. In Hannover, the Hanoverian law of 1859 4 still regu- lates the government of Rural Communes. The chief variations it presents deal, as in the City Government 1 Law of July 4, 1892 (G. S. 1892, p. 147). 2 Law of Aug. 4, 1897 (G. S. 1897, p. 301). 3 Law of Mar. 19, 1856 (G. S. 1856, p. 265). 4 Law of April 28, 1859 (Hannov. G. S. 1859, P- 393), S. S. p. 869. 150 PRINCIPLES OF PRUSSIAN ADMINISTRATION Act, with the electoral franchise. This belongs to all owners of realty and to all independent males of good character, in full possession of their political rights. In Hohenzollern, finally, the Commune Act of igoo, 1 applicable to the two Cities, also provided for a commune organization based in all material respects on the act of 1891 for the Eastern Provinces. Manorial Precincts There remains, alongside the Rural Commune, a peculiar Prussian administrative subdivision for rural local government called the Manorial Precinct (Guts- bezirk). These Precincts, the direct historical successors to the feudal manorial estates, are still found in all Prov- inces of Prussia saving the Rhine Province, but are more numerous in the East. Their organization and jurisdiction is regulated in the Rural Commune Act for the Eastern Provinces. 2 In these Precincts, the owner or director of the estate is charged with the duties elsewhere imposed on the rural commune governments, and exercises the powers of the Commune Director. The Manorial Director (Gutsvorsteher), whether he be the owner of the estate or a substitute appointed by him, must be approved by the Circle Director. Special Unions (Zweckverbande) of Communes with 1 Law of July 2, 1900 (G. S. 1900, p. 189). *L. G. O. 1891, 122-127. THE ORGANS OF ADMINISTRATION each other, with other public corporations or with Manorial Precincts may be formed for particular purposes. These were first provided for the Eastern Provinces by the Rural Commune Act of 1891, but are now uniformly regulated for the whole State by law of 191 1. 1 They are formed as a rule by voluntary union, but may be made obligatory for purposes that constitute legal duties of the single members, such as schools, highways, poor relief, etc. If composed wholly of public corpora- tions, they are themselves public corporations with all powers necessary to the fulfilling of their purpose. There must always be a Union Director (Verbandsvorsteher) and a Union Committee (Verbandsausschuss) , but the details of the organization may be regulated by by-laws. A special Union was created for the territory of Greater Berlin by law of 191 1, 2 regulating the running of street railways, the building and dwelling-house conditions and the acquisition and maintenance of open spaces with- in the area. The organization includes a Union Director elected for six to seventeen years, a Union Assembly, composed of representatives of the members of the Union, and a Union Committee, chosen by the Assembly. J Law of July 19, 1911 (G. S. 1911, p. 115), S. S. p. 2305. 2 Law of July 19, 1911 (G. S. 1911, p. 123), S. S. p. 2305. CHAPTER IV FORMS AND LEGAL EFFECT OF ADMINISTRATIVE ACTION ADMINISTRATION, as has been seen, is a form of state activity that belongs to the functions of the executive branch of government. Its characteristic manifestation would therefore seem to be execution, that is, the realiza- tion of declarations of will framed by the will-declaring organ of the government, the legislature. And this is indeed an important function of the administration, but not the only one. On examining the various mani- festations of administrative activity, one finds that they, like those of government in general, fall into three general groups. The administration, as well as the state as a V whole, declares its will in enactments, general or specific / \ (legislation) ; it enforces obedience to its own orders and \hose of the legislature (execution) ; and it settles dis- putes and controversies that arise out of its orders and enactments (adjudication) . Considering first the enactment of ordinances by the administration, i.e. its legislative activity, it is seen that such enactments may be classified in various ways. 152 LEGAL EFFECT OF ADMINISTRATIVE ACTION 153 Firstly, they are either ordinances establishing a general rule (Verordnungen) or special orders applied to concrete cases (Verfiigungen). General ordinances (Verordnungen) again may deal either with the internal organization of the adminis- tration, not affecting third persons (Verwaltungsverord- nungen), or they may have the character of rules of law which do affect the legal relations of third persons (Rechtsverordnungen) . J The first type of ordinances is issued by virtue of an inherent function of the administration, comprised in the jurisdiction assigned to the executive branch of government through the constitutional distribution of powers. It is therefore not limited by any necessity of legislative authorization, but can be freely exercised by the administrative organs so far as not directly re- stricted by act of the legislature. 2 These internal ordinances are of three general kinds : (a) acts of organization ; (b) service orders ; (c) measures for the establishment and government of public institu- tions, (a) The authority to create offices and regulate the filling of the same may be exercised by the executive 1 Georg Meyer, "Lehrbuch d. Deutschen Staatsrechts," 159, 160, 161 ; Anschiitz, Holtzendorff's "Encyklopaedie der Rechtswissenschaft," 40; Otto Mayer, "Verwaltungsrecht," I, p. 67 ff. 2 Holtzendorff, "Encyklopaedie der Rechtswissenschaft," p. 603; Meyer- Anschiitz, "Deutsches Staatsrecht," pp. 571 ff.; Georg Meyer, "Deutsches Verwaltungsrecht," p. 8. 154 PRINCIPLES OF PRUSSIAN ADMINISTRATION branch of the government to the extent that the legis- lature has not otherwise provided, but is of course effectually, though indirectly, limited by the legislative power over appropriations. In general this power of organization rests with the king, though in certain cases it has been delegated to ministers or lower officers. (6) The power to issue service orders rests with every officer in the administrative hierarchy, who has an official subor- dinate to him. (c) The third kind includes regulations for public institutions, such as libraries, museums, rail- ways, universities, concerning the details of their manage- ment, conditions of user by the public, etc., which are all matters for the competent branch of internal adminis- tration. These internal ordinances of the administration estab- lish no rules of law and create or destroy no legal rights. Hence, as has been seen, they need not be enacted by the legislature, but may be issued by any competent ad- ministrative body to a subordinate body and are binding upon the same upon communication, without any other publication being requisite to their validity. f Of a fundamentally different character are those enact- ments of the administration which do establish rules of law and affect the liberty and property of the individual (Rechtsverordnungen). Prior to the establishment of the constitutional state (1850) there was no legal differ- ence between the two kinds of enactments. The mon- LEGAL EFFECT OF ADMINISTRATIVE ACTION 155 arch had the power to issue all orders for the government of the state, whether these were unimportant directions to a subordinate official or general enactments regulating the legal relations of individuals to each other and to the state. But with the constitution and its separation of powers, the fundamental principle was established that laws which interfere with the liberty and property of the individual could no longer be enacted by the execu- tive alone, but only by a legislature in which representa- tives of the people appeared as a coordinate lawmaking factor with the ruler. By this significant change, there was introduced the basic principle of " lawful administration" or adminis- tration within the limits of the law, which determines not only that no administrative act could conflict with an act of the legislature, but also that any interference by the administration in the liberty and property of the individual could only be lawful on the basis of legislative authorization. 1 Consequently, the power of the adminis- 1 Much confusion has arisen from the various uses of the term "law" (Gesetz). Prior to the adoption of the constitution, the term "law" meant a legal norm, that is, a declaration of will which limited and de- termined the legal relations of the individuals subject to that will. This is the use of the term "law" in its material sense. With the constitution and its separation of powers came, however, a new use of the term. " Law " came to designate also every act of the legislature, whatever its nature, and this is the meaning of the term in its formal sense. Every act of the legislature, therefore, whether the establishment of a legal norm, or whether an act executive or judicial in its nature, is a "law" in this 156 PRINCIPLES OF PRUSSIAN ADMINISTRATION tration to pass enactments with such effect is limited by the necessity of resting on a grant by the legislature in that regard. Such grants have, however, been given in very large measure, sometimes as special grants for par- ticular purposes, sometimes as general grants for wide purposes. There are three chief classes of these acts of the ad- ministration, affecting individual liberty and property, (a) those whch are issued in place of legislative enact- ments (Notverordnungen), (b) those issued to carry out legislative enactments (Ausfiihrungsverordnungen) and (c) those issued to supplement legislative enactments (Erganzungsverordnungen) . The first of these classes, the so-called emergency or- dinances (Notverordnungen), are of relatively slight im- portance because rarely issued. They are authorized by Art. 63 of the Prussian constitution, which pro- vides: "Only in case the maintenance of public safety or the relief of an extraordinary state of distress urgently require it, may ordinances, consonant with the constitu- tion, be passed with the force of laws under the re- fonnal sense. On the other hand, legal norms if established by other organs than the legislature are not "laws" in this sense. The two terms are therefore not coextensive and it is necessary to indicate in which sense the term is employed. As the more usual reference in this connec- tion is to an act of the legislature, the term "law" will be used in this its formal sense, unless otherwise indicated. See Anschiitz, in Holtzendorff s "Encyklopaedie," p. 592. LEGAL EFFECT OF ADMINISTRATIVE ACTION 157 sponsibility of the joint ministry of state, provided the legislature is not in session. Such ordinances must, however, immediately be submitted to the chambers at their next session for ratification. These ordinances are issuable by the king and must be countersigned by all his ministers." It is his discretion and theirs, therefore, that determines, provided of course the legislature is not in session, the necessity of these extraordinary measures. Any and all measures that otherwise fall within the powers of the legislature may be enacted in such executive ordinances, with the single exception of amendments to the constitution. Having the force of legislative acts, these ordinances must be published in the same manner as other laws. 1 The second class of administrative ordinances which have the effect as a rule accorded only to acts of the legislature, are the so-called executing ordinances (Aus- fiihrungsverordnungen). These are issued with the pur- pose of putting into effect an act of the legislature and are generally in the nature of the internal ordinances, discussed above, and in that case need no special legis- lative authorization. But they may also be directed to the public and affect rights of liberty or property, in which case, as has been seen, they must be based on a legislative or constitutional grant of power. This grant is contained in Art. 45 of the constitution, which charges 1 Prussian Constitution, 1850, Art. 106. 158 PRINCIPLES OF PRUSSIAN ADMINISTRATION the king with issuing the ordinances necessary to the execution of the legislative acts. By far the most important class of administrative ordinances having the character of legal norms are the supplementary ordinances (Erganzungsverordnungen). These, too, must of course rest on legislative warrant, and are not, like the other two classes, based on an express provision of the constitution. But the power of the legislature to delegate its lawmaking authority to administrative organs is undoubted 1 and this has been done in a very large measure. Such power cannot, however, be redelegated without legislative permission, hence the law must designate not only to what extent but also by what authorities this ordinance power is to be exercised. A special grant of power for each ordinance is not necessary, for the legislature may designate a general class of measures that may be adopted by ad- ministrative ordinance. This has been done in Prussia for the very important class of administrative enactments known as police ordinances (Polizeiverordnungen). 2 "Police ordinances" (Polizeiverordnungen) in the sense of Prussian administrative law are general police meas- ures of the authorities clothed with the ordinance power, violations of which are threatened with penalties. In *Cf. Jellinek, "Gesetz und Verordnung," p. 333; Laband, "Staats- recht," p. 83; Rosin, " Polizeiverordnungsrecht in Preussen," p. 191. 2 Of special value on this subject is the work of Rosin, "Das Polizei- verordnungsrecht in Preussen," Ed. n, 1895. LEGAL EFFECT OF ADMINISTRATIVE ACTION 159 the absolute Prussian state, this police ordinance power was a royal prerogative 1 exercisable by the king alone or by authorities clothed by him with that power. 2 But a general law passed after the adoption of the con- stitution regulated the whole subject of police ordinances anew. By this law 3 which determined the competent authorities, the scope of their jurisdiction and the maxi- mum imposable penalties, the police ordinance power was largely transferred from the central to the local authori- ties. The law was extended, with slight alterations, to the new provinces in i86y. 4 Supplementary provisions, in effect for the whole of Prussia, were enacted in the law of July 30, 1883, concerning the general state adminis- tration, and these three acts, together with the respective provisions of the circle, commune and city acts, regulate the police ordinance power in Prussia to-day. As the fundamental principle of the legislation be- ginning in 1850 relative to the police ordinance power was decentralization, the local police authorities were given the widest possible powers in this respect. After a comprehensive, though not exhaustive, enumeration of matters which are the subject of local police ordinances, including protection of person and property, freedom, safety and order of traffic on public ways, markets and 1 Allgemeines Landrecht, II, 13, 6. 2 Regierungsinstruktion, Oct. 23, 1817 (G. S. 1817, p. 248, n), S. S. p. 137. 3 Law of March n, 1850 (G. S. 1850, p. 265), S. S. p. 283. 4 Ordinance of Sept. 20, 1867 (G. S. 1867, p. 1529), S. S. p. 291. l6o PRINCIPLES OF PRUSSIAN ADMINISTRATION sale of victuals, public meetings, surveillance of strangers, public taverns, protection to life and health, building regulations and control of extrahazardous undertakings, protection of fields, meadows, woods, etc., the section concludes, "and all else which must be regulated through the police power (polizeilich) in the interest of the com- munes and their members." * * By this last blanket clause, the police ordinance power of these authorities has been made coextensive with the police power itself, as defined in the general code of I794 2 and adopted by the supreme administrative court as declaring the existing law. 3 The police ordi- nances must in every case be concurred in by state or local administrative bodies and may be nullified by the competent minister, or by the district president with the concurrence of the district committee. The maximum penalty imposable by the rural local police authorities for violations of their ordinances is nine marks, 4 which can be raised with the consent of the district president to thirty marks, which is the maximum penalty im- posable for the violation of a city ordinance. 5 1 Law of March u, 1850 (G. S. 1850, p. 265). 2 Allgemeines Landrecht, 1794, Title 17, Part II, 10. "It is the function of the police to adopt the necessary measures for the maintenance of the public quiet, safety and order and for the aversion of dangers threatening the public or its individual members." 3 Decisions of the Sup. Admin. Ct. 9, p. 353 ff. Law of March n, 1850, 5. 5 L. V. G. 1883, 144; S. S. p. 160. LEGAL EFFECT OF ADMINISTRATIVE ACTION l6l The next highest authority with the power to issue police ordinances is the circle director, who may pass ordinances for the entire circle or for several precincts within the same, with concurrence of the circle com- mittee, and attach penalties for their violation up to thirty marks. 1 Above the circle director stands as police authority the district president for his district or two or more circles within it, and above him in turn the province president for his province or several districts thereof, with power to issue ordinances and attach a penalty up to sixty marks for their violation. 2 In the case of ordinances issued by the province president, the concurrence of the province council is necessary; in the case of those issued by the district president, the district committee must concur, except that in both cases emergency measures may be passed, valid for three months, without such concurrence. 3 Finally the ministers also may issue police ordinances. But they have received no general power like that of the subordinate authorities. Express authorization by law is necessary in each case, for the law of 1883 gave only a limited ordinance power to the minister of public works, as regards railway regulations ; and to the minister of trade and industry, as regards navigation and harbor regulations, with the power to attach a maximum penalty 1 Ibid. 142. 2 L. V. G. 137. 3 Ibid. 139. M l62 PRINCIPLES OF PRUSSIAN ADMINISTRATION of one hundred marks. The same is true of ordinances passed in execution of the provisions of the imperial criminal code as regards the preparation of poisons and explosives. 1 The ministers of course exercise an impor- tant additional influence on the ordinance making power through their authority to direct their subordinates to issue desired ordinances, but such ordinances must, as has been seen, in every case be concurred in by another body, composed in part, at least, of representatives of the people in each territorial division. Police ordinances are enacted in a manner analogous to the passage of legislative enactments, and their validity is dependent upon the observance of the forms required by law, especially as regards proper publication. Their legality may be questioned not only by the supreme administrative authorities, either of their own initiative or upon protest or complaint, but also by the regular courts in a collateral proceeding involving the validity of a given ordinance, ordinarily when an individual is to be tried on a charge of violating an ordinance. Besides this large class of ordinances, which, though dependent on the concurrence of organs of local self- administration, are in legal effect acts of the organs of state administration, there is another important class of enactments which fall within the ordinance power of the local administrative organs. These are the by-laws or i L. V. G. 136. LEGAL EFFECT OF ADMINISTRATIVE ACTION 163 statutes passed by the bodies, generally, though not always, corporate bodies, in the exercise of their powers of self-administration. Practically all bodies for local self-administration, from province corporations down to the communes, are clothed with the power of passing such ordinances. This ordinance power is granted partly by general laws and partly by special laws relating to particular matters, but the principle of delegation here also is that of general authorization to issue ordinances in all matters of local concern. Excluded, of course, are the above-considered police ordinances, which, as has been seen, are matters of state, not of local, concern. But a legislative authorization must here exist, as with all administrative enactments having the character of legal norms as a legal basis for such statutes. Sometimes also ordinance powers are delegated to these organs of local self-administration by imperial as well as by state law. Considering now the legislative activity of the ad- ministration as expressed not in general ordinances, out in special orders, we note that there is here, too, the distinction between internal or service orders and those directed to third persons. Among the latter, the most mportant are those which interfere with the liberty or property of the individual, by imposing a restraint or obligation upon him. There is a conflict of opinion as to the basis and extent of the administrative power with regard to these orders 164 PRINCIPLES OF PRUSSIAN ADMINISTRATION when legislative authorization is lacking, but the pre- vailing, and it would seem the better opinion, and the one adopted by the supreme administrative court of Prussia, is to the effect that the principle of " legal" ad- ministration was introduced by the constitution for all liberty or property affecting acts of the administration. 1 A legislative authorization must consequently also be found to establish the validity of " police orders," which are in effect police ordinances directed to a concrete case. This authorization is found in Prussia in the General Code of 1794, as regards the maintenance of public quiet, safety and order and the protection against impending dangers, 2 and for other purposes of public welfare in a great number of special enactments. Police orders may be issued in the form of commands or pro- hibitions. Their propriety may, as in the case of police ordinances, be examined by the higher administrative authorities of their own initiative, or upon protest, their legality be questioned by proceedings in the adminis- trative courts as regulated by law. 3 Such an order confers no vested legal rights, for the authority which issued it may recall it, as well as reissue one which has been recalled, unless it was recalled in consequence of a 1 For the minority view and a list of references to the representatives of the prevailing view, see Meyer-Anschiitz, "Deutsches Staatsrecht," 178 and note 3. 2 Allgemeines Landrecht, 1794, Title 17, Part II, 10. 'L.V. G.i88 3 , 127-131. LEGAL EFFECT OF ADMINISTRATIVE ACTION 165 decision by an administrative court. On the other hand an individual whose protest against an adminis- trative order has once been disallowed may reenter his protest upon issuance of another order to the same effect. But failure to take the permitted steps to ques- tion an order within the time allowed forecloses the right of the party affected to attack it. 1 The converse of administrative prohibitions is fur- nished in administrative permits or licenses, by which an act forbidden by general law is permitted in particu- lar cases. The authority to issue such permits or licenses must be contained in the law which establishes the pro- hibition, or in another act of the legislature, unless the prohibition itself is established by the administra- tion in the exercise of its ordinance powers. In either case, the action of the licensing authority, even though discretionary, must not be arbitrary, although no legal right to the issuance of a license accrues to an individual, when discretion is admitted. Nor does a licensee obtain a vested right to the continuance of the permit he has obtained. The licensing authority may revoke the license under the circumstances provided in the law or if the public interest demands it. The licensee has obtained merely a protection in the exercise of his permit as against the public authorities, as long as the license remains unrevoked. Against illegal refusal or revoca- 1 Georg Meyer, "Deutsches Verwaltungsrecht," p. 87. 1 66 PRINCIPLES OF PRUSSIAN ADMINISTRATION tion of a license, the party aggrieved may seek his remedy in the administrative courts. 1 Another class of administrative orders is characterized by the fact that they do create vested rights. These are known as acts of investiture (Verleihung). These may either directly confer rights or create a status. So the granting of rights in realty, such as mining and water rights, patents, copyrights, public rights, such as titles, orders and rank, conferring of corporate capacity, etc., are all examples of the first-mentioned species of ad- ministrative acts. To the second kind belong solemniza- tion of marriages, legitimation and majorization of chil- dren, naturalization, appointment as public officer, etc. Opposed to these acts of investiture are the corresponding acts of divestiture, which must, of course, rest on warrant of law. Rights once created can in general be destroyed only on grounds of public interest and on payment of compen- sation or as a punishment for improper use of the rights. The individual concerned may only in certain cases enforce the conferring of such rights or status through the administrative courts, as fixed by law ; as, for instance, with regard to citizenship, state and local. Once in possession of such a right, he may make it the basis of action in the regular courts against infringement by in- dividuals, and in case of illegal deprivation by the ad- 1 Georg Meyer, "Verwaltungsrecht," p. 87; Fleiner, 24; Otto Mayer I, 21. LEGAL EFFECT OF ADMINISTRATIVE ACTION 167 ministration he must look sometimes to the adminis- trative courts, sometimes to the regular courts, state or national. For the destruction of a vested right of pecu- niary value, the individual is entitled to compensation, for which he can sue in the ordinary courts. 1 All these latter classes of administrative acts can be grouped under the deliberative or legislative functions of the administration only in so far as the law accords a certain amount of discretion to the authorities. Other- wise they become mere ministerial acts of a nature purely executive, and would therefore fall under the next main division of administrative action. Such, for instance, are the large variety of acts of confirmation and authentication, including collection of statistics, attestation by notary's seal, etc., which are ministerial duties imposed by law, the performance of which may be enforced through the higher administrative offi- cials. It is not enough for the administration to legislate, that is, to enact general ordinances or issue special or- ders, but it must also see that its measures are enforced. For the infliction of penalties incurred through violation of the general ordinances, the regular channels of criminal trial before the ordinary courts are to be used. But for violation of or disobedience to administrative special orders, the administration is endowed with a coercive 1 Georg Meyer, "Deutsches Verwaltungsrecht," pp. 96-97. 1 68 PRINCIPLES OF PRUSSIAN ADMINISTRATION power, known as administrative execution. 1 This power of administrative execution is co-extensive with the power to issue orders and is inherent in the latter. In earlier times, there was no distinction between ju- dicial execution and administrative execution. Gradu- ally, however, judicial execution was developed as a distinct function, though for a long period the same organs were used also for administrative execution. Not until the beginning of the nineteenth century was the subject of administrative execution regulated by special provisions, and now detailed legislative acts determine the exercise of this power. There are two general kinds of administrative execu- tion, one of which is directed toward compelling a payment (executio ad sohendum) and the other toward compelling action or desistance (executio ad faciendum vel omittendum). The former, intended for the collection of obligations to the state (taxes, imposts, duties, ad- ministrative fines, etc.), is regulated in great detail by an ordinance of iSgg 2 and follows very closely the pro- visions of the Imperial Code of Civil Procedure relating to execution through the regular courts. The latter, of more importance for the field of internal administration, 1 Georg Meyer, "Deutsches Verwaltungsrecht," Ed. in, p. 67 ff. ; Fleiner, " Institutionen des deutschen Verwaltungsrechts," 13; An- schiitz, "Das Recht des Verwaltungszwangs in Preussen" (Verwaltungs- archiv I, p. 389). * O. Nov. 15, 1899 (G. S. 1899, p. 545), S. S. p. 238. LEGAL EFFECT OF ADMINISTRATIVE ACTION 1 69 is dealt with strictly in two enactments, one of dealing with powers of execution of the district "govern- ments," and the other of i883, 2 regulating the powers of execution of the lower police authorities. The ordinance of 1808 provides that the district govern- ments, in the exercise of their powers of execution, may, after fruitless demand of obedience to an order, have the act desired performed on account of the individual in question whenever the desired performance may just as well be furnished by a third person. Similarly, if delivery of articles is demanded, but not of specific articles in the individual's possession, they may be bought on his account. In either case, the sums ex- pended are collectible by execution. The "government " is, moreover, empowered to demand the carrying out of an order and attach and enforce a penalty up to three hundred marks or four weeks in jail, for failure to obey. As extreme measures, execution by military force is per- mitted after all other measures have failed, and approval of the superior authority has been obtained. An extension of this power of execution to the district presidents, the circle director, the local police authorities and the commune executives is contained in the law of 1883. The coercive power is to be used on the following conditions. Whenever feasible, the administrative au- 1 O. Dec. 26, 1808, as contained in Instruction, Oct. 23, 1817 (G. S. 1817, p. 282, 48). 2 L. V. G. 1883, 132-134. 1 70 PRINCIPLES OF PRUSSIAN ADMINISTRATION thority must enforce a valid order by having the desired act performed by a third person and collecting the costs from the person charged with the performance thereof by executio ad solvendum. In case the act demanded is one that cannot be performed as well by a third person, or if it is apparent that the individual charged with the obligation to act would be financially unable to meet the expenses incurred by the performance of the act by another, or, finally, if it is a desistance that is desired, the authorities are empowered to threaten and impose fines or in case of insolvency, imprisonment. A written warning must precede the coercive measures in either case. The maximum fine and the equivalent imprison- ment are fixed bylaw for each authority. So for the rural commune executive, the maximum penalty imposable is five marks or one day's imprisonment ; for the local po- lice authorities and city executives within rural circles sixty marks or one week's imprisonment; for the circle directors, police authorities and city executives in a city circle, one hundred and fifty marks or two weeks' im- prisonment ; and for the district president, three hundred marks or four weeks' imprisonment. Imprisonment, in case the individual is unable to pay the fine imposed, may not be enforced until after final termination of proceedings instituted to test the validity of the measure attacked, or until expiration of the time allowed for instituting such proceedings. The use of LEGAL EFFECT OF ADMINISTRATIVE ACTION 171 weapons is permitted only for certain named classes of officers. Physical force is to be used only as a last resort in compelling obedience to an order. The individual threatened with administrative coercion is entitled to attack the validity of the coercive threat on the same grounds and in the same way that he could question the validity of the original order. But against the imposition or execution of the coercive measure, protection may be sought only through formal protest within two weeks before the supervisory authority. Not only may the administrative authorities approve or disapprove, by virtue of their supervisory powers, the acts of the authorities subordinate to them, but they may also consider the propriety and validity of such acts upon demand of individuals claiming to be injured by these acts. Here, then, the administration exercises its third class of functions; namely, that of adjudication. One must distinguish between two forms of the exercise of this judicial power, one in which a higher ad- ministrative authority considers the claims of an individ- ual in respect to an act of the administration in an informal proceeding not strictly governed by rules of procedure other than those for administrative action in general (Beschlussverfahren), and the other in which the proceeding is before a regular administrative court and is carried on much like a suit before an ordinary 172 PRINCIPLES OF PRUSSIAN ADMINISTRATION court (Verwaltungsstreitverfahren). The question when the one and when the other of these forms of procedure is available to the individual aggrieved is determined by no general rule, but by a variety of legislative pro- visions. However, in general, it can be said that while the first form of proceeding is adapted for the questioning of the expediency of administrative measures, as well as their legality, the second form is available to question their legality only. Administrative review (Beschlussverfahren) is in gen- eral a function of the collegial supervisory authorities of state administration in which the lay element is repre- sented. These are the circle or the city committee in the first instance, and the district committee and the province council. Each of these authorities has terri- torial jurisdiction over the matters assigned to it by law in the administrative subdivision in which it is active. In actions involving reality, the authority of the division where it is located has jurisdiction ; in all other cases, it rests with the authority of the division where the person concerned has his domicile. 1 The procedure in the exercise of the function of ad- ministrative review is determined largely in a ministerial regulation of i884, 2 s ^ ar as n t regulated in the law of 1 The jurisdiction of these reviewing bodies rests on a great number of enactments the most comprehensive of which is the law of Aug. i, 1883 (G. S. 1883, p. 237), S. S. p. 194. 2 Regulation of Feb. 28, 1884 (Minis. Blatt, 1884, p. 35 ff.). LEGAL EFFECT OF ADMINISTRATIVE ACTION 173 1 883.* Members of the reviewing body (Beschlussbe- horde) are disqualified for interest if affected by the mat- ter under discussion, either themselves or through near relatives, or if they have stood in a business relation to the same. In exceptional cases the chairman (circle di- rector, district president or province president) may act in the name of the whole body. The protesting indi- vidual may, if such a decision be adverse, petition for a decision by the whole body, or proceed with his rem- edies as though the decision had been rendered by the whole body. The proceedings of the reviewing body are as a rule carried on on the basis of documentary evidence. Oral proceedings, at which the party interested is to be heard, may, however, be specially required by law or may be instituted by the reviewing body itself. If oral proceed- ings are required, the same rules of procedure are in force as for the judicial proceedings before an adminis- trative court. 2 So also as regards the rights and duties of witnesses, the manner of getting testimony, etc., the same rules apply as in the case for the administrative court proceedings. The individual may within two weeks enter a protest against an adverse determination of the circle or city committee, before the district com- mittee, unless otherwise specially provided by law. In the same way protest may be made against the orig- L. V. G. 50-60, 115-126. 8 Which see later, p. 180 f. 174 PRINCIPLES OF PRUSSIAN ADMINISTRATION inal determinations of the district committee before the province council. Reviewing determinations of the district committee are, like those of the province council, final unless otherwise specially provided by law. The protest against a determination is to be entered with the authority whose determination is protested against. It is then submitted to the reviewing authority with the answer of the opposing party. The chairman of the authority originally issuing a determination may himself protest, on grounds of public interest, against such determination. Furthermore, final determinations of the bodies (province council, district committees, etc.) may be attacked by the chairmen of these bodies by complaint before the supreme administrative court. This brings us to the second and more technically judicial activity of the administration (Verwaltungs- streitverf ahren) . This judicial jurisdiction (Verwaltungs- /\ gerichtsbarkeit) was not established until some years \after the introduction of the constitutional system. After it had become apparent that ministerial responsi- bility, as established by the constitution, did not furnish an adequate check on the administration, but that a union of the power to act and to judge the validity of such acts in the same hands was no less dangerous than a union of the legislative and executive functions, a spe- cial judicial machinery was established to bring about this separation. LEGAL EFFECT OF ADMINISTRATIVE ACTION 175 This machinery was not part of the regular judicial system, and was indeed still built up within the ad- ministrative organism, but it was regulated by laws very similar to those for the regular courts whereby the independence of decisions and freedom from influence by the administrative hierarchy were the chief aim. The proposal to endow the regular courts with juris- diction in administrative cases, though warmly sup- ported, was rejected, partly because of the fact that the judges of those courts trained in private law would not have proper acquaintance with the principles of public law, and partly because they had not the necessary acquaintance and experience in practical administration requisite to an intelligent comprehension of the prob- lems involved. Furthermore, there seemed to be a con- cession of superiority over the administration involved in making the ordinary courts judges of the validity of administrative acts, and that appeared contrary to the principle of equality and independence as between the judicial and executive branches of government. The system of special administrative courts was therefore adopted and was first introduced in the reform legislation of 1872. The circle committees were organ- ized as administrative courts and over them appellate bodies. In 1875 a special law organized a system of administrative courts comprising the circle committees, district administrative courts and a supreme adminis- 176 PRINCIPLES OF PRUSSIAN ADMINISTRATION trative court for the whole of Prussia. The provisions of that law with regard to the supreme administrative court are, with some modifications, still in force, but the separate district administrative courts were re- placed by the district committee through the law of 1883. It is seen, therefore, that only in the highest instance (supreme administrative court) is there an organic separation of administration and adjudication. In the lower instances (district committee and circle committee) the same bodies act both as organs of active administration and as courts. A certain distinction is, however, created by the procedural requirements which are very strict for the latter function. The desired independence of higher official influence is attained through the lay element on the committee. 1 Decisions of the administrative courts when final are law in the sense that their execution cannot be stayed and that for that particular case the question is deter- mined. But in how far such a decision can be used to found a plea of res adjudicata in another case involv- ing the same parties and the same facts is a disputed question, the answer to which can be found in no general rule, but varies according to the nature of the particular case. 2 1 See organization of the district and circle committees, pp. 102 ff. 2 See Fleiner, " Institutionen des deutschen Verwaltungsrechts," pp. 224-227. LEGAL EFFECT OF ADMINISTRATIVE ACTION 177 The jurisdiction of the administrative courts as re- gards subject-matter is determined by no one law, but must be gathered from the countless enactments deal- ing with special fields of administrative activity. The law of Aug. i, 1883,* contains a large designation of jurisdiction and the law of July 30, i883, 2 regulates the jurisdiction of the administrative courts as regards police orders. In addition to state laws, there are also imperial laws affecting the jurisdiction of these courts. Controversies before the administrative courts fall into two general groups, those instituted for the pro- tection of objective law and those for the protection of subjective rights. 3 The first general group of contro- versies involves action against an administrative act on the general ground of illegality. This occurs not between organs of state administration, which are sub- ject to superior organs of control, but between organs of state and of local administration. So the circle direc- tor, the district president and the province president may bring the acts of the circle committee, the district I committee and the province council before the adminis- j trative courts to test their legality. 4 Or state authorities may suspend acts of the organs of local administra- 1 Zustand, G. (G. S. 1883, p. 237). 2 L. V. G. (G. S. 1883, p. 195), 127-131. 8 Georg Meyer, "Lehrbuch des deutschen Verwaltungsrechts," 13, pp. 52-61. 4 L. G. O. 1891, 6; Kr. O. 1872, 133. N 178 PRINCIPLES OF PRUSSIAN ADMINISTRATION tion and the latter then complain before the adminis- trative courts : so the commune executive with regard to acts of the council, the mayor with regard to acts of the city council, the circle director with regard to acts of the circle organs of local administration and the province president with regard to the province organs of local administration. 1 Or complaints may be lodged with the administrative courts by the qualified members of the general public as regards the legality of municipal elections. 2 The second group of controversies are those instituted for the protection of individual rights and interests. The complainant here may be a private individual, an officer or a public corporation. A private individual may demand a decision as to his public status, citizen- ship, state and local, franchise right, eligibility to office, etc. Or he may demand a decision compelling an administrative organ to act or to refrain from acting in his regard. So the whole field of administrative orders furnishes the subject-matter of proceedings as to their legality before administrative courts, and the individual affected may demand their revocation. 3 Or the individual may, by means of the administrative courts, compel an organ to issue licenses, documents, !L. G. 0. 1891, 140; Zust. G. 1883, 15; Kr. 0. 1872, 178; Pr. O. 1875, 118. 2 L. G. 0. 1891, 67 ; St. 0. 1853, 27 ; Pr. 0. 1875, 24. L. V. G. 1883, Zust. G. 1883, etc. LEGAL EFFECT OF ADMINISTRATIVE ACTION 179 etc., or to grant support, or the use of public institu- tions so far as the law accords such rights. If an officer, the complainant may in certain cases compel the recognition of his official status, question the validity of disciplinary measures employed against him and enforce pecuniary claims for salary, etc., by means of the administrative courts. 1 Public corporations may invoke the administrative courts to determine their public character or territorial limits or to protect other public and private rights. 2 Generally speaking, administrative courts can take jurisdiction over cases only if the right involved arises out of the failure of the administration to perform a concrete duty imposed by law. Matters of discretion can therefore as a rule raise no rights which the judicial machinery of the administration is meant to protect, unless an arbitrary and therefore illegal action of the administration is evident. But in certain cases the law gives a right to require a reasonable and expedient and not merely lawful exercise of administrative power which may be brought before the administrative courts, in- stead of being left merely to higher administrative de- cision, as questions of expediency in general are. So the petitioner for an innkeeper's license may demand decision by the administrative court concerning the 1 Zust. G. 1883, 70, 2 ; L. V. G. 1883, 14, 32, etc. ; Law of July 30, 1899, 7- Zust. G. 1883, 9, 21, 26. l8o PRINCIPLES OF PRUSSIAN ADMINISTRATION refusal of a license by the circle committee, although the refusal of such a license is a matter for the discretion of the licensing authority. 1 The procedure in cases before the administrative courts is regulated in great detail in the law of July 30, 1883, 50-114. As a general rule, the possibility of proceedings before the administrative courts precludes other measures of redress, but various exceptions are established by law. The general period for instituting proceedings is two weeks after the measure complained of has been issued, and unless in exceptional cases the right to proceedings expires with that period. The institution of proceedings regularly suspends the meas- ure complained of, unless in the opinion of the issuing authority public interest demands its immediate execu- tion. The territorial jurisdiction of the administrative courts, like that of the administrative reviewing bodies, is determined in real actions by the location of the realty, in personal action by the domicile of the complainant. Decisions of the administrative courts are executed in the name of the authority which acted as the first instance. Disqualifications for interest are the same as for the regular courts. The case is begun by submitting a written complaint to the competent court, containing the demand of the complainant, the identity of the de- !Zust. G. 1883, 114. LEGAL EFFECT OF ADMINISTRATIVE ACTION l8l fendant, the subject-matter of the controversy and the facts on which the demand is based. If the petition is clearly ungrounded, the claim may be disallowed in an award (Bescheid) stating the reasons. If, however, the petition appears justified, the defendant may be ordered to act in accordance with the prayer of the complainant. Such immediate awards must state that the parties are entitled within two weeks to demand oral proceedings or to appeal directly to the next highest instance. Fail- ure to do either within the given period endows the award with the character of a final decision. Instead of issuing an immediate award, the court may order the defendant to prepare a written answer within not more than four weeks, together with all documentary evidence. If neither party then demands oral proceedings, the court may issue an award as before, but on the basis of the evidence submitted. But if either party requests oral proceedings or if the court deems them advisable, the parties are instructed to appear. The same is done in cases where the law gives as remedy instead of the complaint the right to demand oral proceedings. Third persons in interest may be notified to appear and are then parties to the case and bound by its decision. In the oral proceedings, the parties themselves or their counsel are to be heard and may modify their original declarations so far as in the opinion of the 182 PRINCIPLES OF PRUSSIAN ADMINISTRATION court the opposing party is not prejudiced or the pro- ceedings unduly delayed. They have the right to intro- duce all available evidence and to have witnesses heard on their behalf. The chairman of the court must assist in the clear presentation of all relevant facts, by inter- jecting questions or other remarks. The proceedings are open, unless public welfare or morals seem to demand the exclusion of the public. A special agent may be appointed by the district president, or for the highest instance by the competent minister, to protect the public interests affected. In general, this is the function of the authority involved in the case, but if no authority is designated by law as defendant in a given case, an agent may also be appointed to represent the public interests. The court itself may institute investigations, summon witnesses and experts and examine them under oath and otherwise act to obtain all desirable information. Its punitive powers in this respect are the same as those of a regular court. The court decides on the basis of all known facts, but binds only the parties to the case and can decree no more than was demanded in the complaint. The decision is rendered in open session and is delivered in writing with the grounds for the same to the parties in the case. The circle committees are always courts of first in- stance. From their decisions, except when declared LEGAL EFFECT OF ADMINISTRATIVE ACTION 183 by law to be final, the complainant may appeal. Fur- thermore, the chairman of the circle committee may on grounds of public interest appeal from its decisions, declaring his intention to do so at the time of announc- ing the decision. The appellate court is the district committee. The district committee is, moreover, in certain cases a court of first instance. From its decision in such cases appeal is permitted in the same way to the supreme administrative court. In either case, if the appeal is by the chairman of the court below, a special counsel is appointed to represent the public interests on account of which the appeal was entered. The appeal must be presented with the grounds therefor in writing to the court appealed from. This must be done within a period of two weeks, under pain of losing the right to appeal. In the appellate court, the decision can be reversed only after oral proceedings. It proceeds in the same way as the court of first instance and examines de now all questions of law and fact. The decision is an- nounced by the court whose decision was appealed from. Decisions of the district committee acting as appel- late court may be taken to the supreme administrative court for revision, unless otherwise provided by law. Here again the chairman of the court below may demand revision on the ground of public interests. Otherwise 184 PRINCIPLES OF PRUSSIAN ADMINISTRATION the law admits only two grounds of revision. If it is claimed that the decision below rests on a misapplica- tion or non-application of the law, or that the proceed- ing was defective in a material degree, there is ground for revision. The petition for revision must set forth the error of law or procedure complained of. The court is not restricted to the reasons advanced in sup- port of the original demands. If the grounds for re- vision are considered adequate and the whole matter appears ripe for decision, the highest court annuls the decision of the court below and renders a new decision, which is announced by the court of first instance. If the whole matter does not seem ripe for decision, the case is remanded to the court below for new trial or for amendment of the proceeding in the defective particulars. The right of motion for new trial, after final decision, is accorded under the same conditions as the analogous motions in the civil courts, 1 and is passed upon by the supreme administrative court, which remands the cases, if the motion is allowed, to the competent court with instructions as to the principles of law and the rules of procedure to be applied. Objections to the conduct of proceedings before the circle and district committees are considered finally settled by the court of next highest 1 Zivilprozessordnung, 578 ff. Nichtigkeitsklage and Restitutions- klage. LEGAL EFFECT OF ADMINISTRATIVE ACTION 185 instance. Court costs and legal costs of the successful party are, as a general rule, borne by the opposing party. The supreme administrative court, besides being a court of second and third instance, is also in some matters a court of original jurisdiction, but this is an exceptional activity. Such, for instance, is the function of one senate of the court in acting as disciplinary court, 1 and of the three senates for tax disputes. 2 The administrative courts determine the question of jurisdiction of their own motion or upon a plea to the jurisdiction. If the question involves a conflict of jurisdiction between the administrative courts and other administrative authorities a conflict which may be raised by the central or by the province adminis- trative authorities the court itself first passes on the question of jurisdiction. If it then maintains its juris- diction in a suit over which an administrative authority also claims jurisdiction, the conflict is settled by the supreme administrative court in an oral contentious proceeding on the basis of written arguments submitted by conflicting authorities. Similarly in case both bod- ies disclaim jurisdiction, the matter is settled by the su- preme administrative court. 1 Law of May 8, 1889 (G. S. 1889, p. 107), S. S. p. 418. 2 Law of June 24, 1891 (G. S. 1891, p. 205, 37); S. S. p. 1121; In- come Tax Law, 1906 (G. S. 1906, 49-54) ; Supplementary Tax Law, 1906 (G. S. 1906, p. 294, 37). 186 PRINCIPLES OF PRUSSIAN ADMINISTRATION If a conflict of jurisdiction arises between the ad- ministrative courts and the regular judicial courts, the question is more complex. 1 Such conflicts of jurisdic- tion were formerly settled by the king, directly or through bodies commissioned thereto by him. In 1847 a law regulated the subject in Prussia after the French model, whereby the administration was given the power to call in question the jurisdiction of the regular courts in a given case, the conflict of jurisdiction thereby raised to be settled by a special court. Then came the im- perial law for the constitution of the judiciary, which, while establishing the general rule that the regular courts were the judges of their own jurisdiction, per- mitted the single states to establish by law special authorities for the decision of conflicts of jurisdiction. The constitution of these bodies was, however, con- ditioned by the imperial law itself. 2 In accordance with the provisions of the imperial law, 1 See Meyer-Anschiitz, " Staatsrecht," 181. 2 Gerichtsverfassungsgesetz, Jan. 27, 1877, 17, provides that such courts must be composed as follows : Members are to be appointed for the term of the office they are holding at the time of appointment, or for life, and are to have the same security of tenure as the judges of the im- perial court. At least one-half the members must be judges of the im- perial court or the superior state courts. At least five members must participate in a decision, and always an uneven number. The pro- cedure is to be regulated by law; the decision to be rendered in open session after notice to the parties. If a regular court has in the assump- tion of jurisdiction rendered a final decision, proceedings may not be begun before the special court to determine the question of jurisdiction. LEGAL EFFECT OF ADMINISTRATIVE ACTION 187 a court was established in Prussia in 1879 f r the deci- sion of conflicts of jurisdiction. 1 The court consists of eleven members, six of whom must be judges of the state superior court at Berlin, the others qualified for the higher administrative or judicial service, all ap- pointed by the king on presentation of the ministry of state. Seven members must participate in a decision. A conflict is raised by the contention of the central or province administrative authorities that in a given case before the ordinary courts, the courts lack jurisdiction. The administrative authority must declare in writing to the court before which a case is pending that the court is considered to be without jurisdiction. Thereby the court proceeding is suspended for the time being, and notice must be given the parties. If a court has, how- ever, rendered a final decision or a decision subject to revision only, the conflict cannot be raised and the administrative authority must be so informed. After notice has been served to the parties of the raising of the conflict, they may, within a month, submit their 1 Ordinance of Aug. i, 1879 (G. S. 1879, P- 573)- The organization of the court was determined by ordinance, notwithstanding Art. 96 of the Prussian constitution, requiring a legislative enactment, on the basis of 17 of the introductory measures for the above cited law. This measure provided that in states in which such a special court al- ready existed, but needed to be reconstituted, in view of the new provi- sions, such reconstruction might occur through ordinance instead of law. By law of May 2 2/1902, several alterations were made in the orig- inal ordinance (G. S. 1902, p. 145). l88 PRINCIPLES OF PRUSSIAN ADMINISTRATION opinions, signed by counsel. The court then sends its views to the higher court and this in turn adds its views and sends all papers to the minister of justice. He then sends them to the special court for conflicts of jurisdiction. The procedure here is both public and oral and the decision rendered in the presence of the parties. In case both the regular courts and the adminis- trative courts deny jurisdiction on the ground of jurisdiction belonging to the other bodies, the special court of jurisdiction may be invoked by a party to the case. In either case, whether both administrative courts and ordinary courts claim or disclaim jurisdiction, the decision of the special court of jurisdiction affirming the jurisdiction of the ordinary courts precludes the juris- diction of the administrative courts. If the imperial court has pronounced against the jurisdiction of the ordinary courts, the possibility of invoking the special court is not open to the parties. 1 But if the imperial court has denied the jurisdiction of the ordinary courts, the administrative courts may not refuse jurisdiction on the ground that it rests with the courts. Moreover, 1 This provision and the following, by which the imperial court was excepted from the effect of decisions by the special court, was added in the amendments of 1902 in consequence of a long theoretical and practical difference of opinion on the relation of such decisions to the imperial court. See Meyer-Anschiitz, "Staatsrecht," p. 666, note 13. LEGAL EFFECT OF ADMINISTRATIVE ACTION 189 if the administrative courts have already denied juris- diction on that ground prior to the decision of the imperial court, the parties to the case may require a reversal of the decision of the administrative court, and proceedings before the competent authorities. There remains in this connection the consideration of a peculiar function of the supreme administrative court, known as the "raising of the conflict" (Konfliktser- hebung) not to be confounded with the above considered " raising of the conflict of jurisdiction" (Kompetenz- konflikterhebung). By law of I854, 1 as modified by the imperial law of iSyy, 2 it is provided that in case a public officer 3 is proceeded against civilly or criminally for acts or omissions in the course of his service, the superior province or the central authority may " raise the conflict," if it believes that he has acted within the requirements of his office. That is, the determina- tion of that preliminary question is withdrawn from the cognizance of the ordinary court and submitted to the supreme administrative court for determination. This court may call on the administrative and judicial 1 Law of Feb. 13, 1854 ( G. S. 1854, p. 86), S. S. p. 417. ;* Introd. Law to the G. V. G. Jan. 27, 1877 (R. G. Bl. 1877, p. 77, 17). 3 The law extends to suits against all officers, mediate and immediate, civil and military, active or retired. But judicial officers and certain other special classes are excepted. A similar arrangement was adopted for soldiers, by providing a special military body in place of the supreme administrative court. IQO PRINCIPLES OF PRUSSIAN ADMINISTRATION authorities for assistance in determining the facts of the case. The court then decides according to its findings either that the case may proceed in the ordinary courts or not. The former finding has no weight in the subse- quent decision of the case in the ordinary court. CHAPTER V PROTECTION OF THE INDIVIDUAL AGAINST ACTS OF THE ADMINISTRATION WE have seen how the transition from the absolute state of the pre-constitutional period to the modern limited form of monarchy was of the greatest signifi- cance for the protection of the individual against undue encroachments by the executive branch of the govern- ment upon his rights and liberties. We have now to examine more systematically the means which the law has placed at the disposal of the individual for making the theoretical safeguards a practical protection. The general right of every individual to object orally or in writing to any act of the public authorities can- not be considered as a subjective legal right, for that flows from his liberty of action as an individual, not from any constitutional or legislative grant. No more is the restraint exercised over administrative organs by the controlling authorities in the fulfilment of their duty to require of the authorities subordinate to them a law- ful use of power, to be reckoned as a subjective right of the individual. For that restraint is one the exercise 191 IQ2 PRINCIPLES OF PRUSSIAN ADMINISTRATION or non-exercise of which is independent of any action by the individual. There are, however, certain measures accorded to the individual by law, by which he can of his own right make effective his claims to protection. These meas- ures comprise the formal protest (Beschwerde), the complaint before administrative courts (Verwaltungs- klage), and actions before the ordinary courts. The most common and comprehensive of these remedies of the individual is the protest or administrative appeal already considered under the forms of administrative action above. 1 The laws give every individual who feels himself injured in his rights or interests the right to protest to the superior authority against action by the lower authorities. The conditions and forms of entering such protests are determined by law. So the protest must be entered with the proper authority in general the supervising authority above the organ against which protest is raised within a period of two weeks. It can be raised only by the individual who is directly affected by the action complained of, in his private capacity. The protest may be directed towards an error of fact or of law, an abuse of discretion or a mis- conception of expediency. As a general rule, the protest is excluded as a remedy if the complaint before 1 Fleiner, p. 194, 14; Otto Mayer, I, 12; v. Seydel, I, p. 560. PROTECTION OF THE INDIVIDUAL 1 93 the administrative courts is permitted in the matter under protest. 1 The effect of the protest is to suspend the action complained of, unless in the opinion of the authority public interest forbids its suspension. But imprison- ment, when open to the administrative authority as a coercive measure, may not be resorted to in execution of an act against which protest has been duly entered. 2 The higher authority examines the whole subject- matter of the protest de now; and if it finds the protest to be justified, it annuls the action protested against and replaces it with another in accordance with its findings. If the authority appealed to is at the same time the superior controlling authority, it may alter the action protested against, either to the prejudice of the individual or to his advantage, as the case may demand. But if it is a special authority for the hearing of protests without the powers of a supervising organ, then it cannot place the individual in a worse position than before. 3 If the action protested against is ap- proved by the higher authority, the lower authority is still free to alter or revoke it. But if the higher authority has annulled the action in question and sub- stituted another for it, then this is alterable by the higher authority alone. The most important application of the right of pro- L. V. G. 1883, 50. 2 Ibid. S3- 3 Fleiner, p. 199. IQ4 PRINCIPLES OF PRUSSIAN ADMINISTRATION test by an individual occurs in respect to the police orders. Such protests must be entered with the au- thority whose action is protested against. So orders of the local police authorities in rural communes and in cities of less than ten thousand inhabitants may be protested against before the circle director with appeal to the district president. Police orders of the authori- ties in city circles, save Berlin, of other cities with more than ten thousand inhabitants and of the circle director are subject to protest before the district presi- dent with appeal to the province president. These appellate determinations may finally be brought before the supreme administrative court by complaint if they are claimed to injure the complainant in his legal rights by a non-application or misapplication of the law, or to rest on a mistake of fact on the part of the authority issuing the order. 1 Finally, police orders of the district president are subject to protest within two weeks before the province president. The determination of the latter may be proceeded against before the supreme administrative court as above. 2 The other cases in which protests are admitted are contained in all the various enactments dealing with the different fields of administrative activity, and can- not be exhaustively enumerated. A considerable num- i L. V. G. 1883, 127. 2 L. V. G. 130. PROTECTION OF THE INDIVIDUAL IQ5 her is found in the law of August, 1883, dealing with poor relief, schools, savings banks, public ways, streams and dikes, fish and game, industries, building regulations, expropriation, citizenship, etc. 1 The next remedy open to the individual who feels himself injured by administrative action is the com- plaint before the administrative courts (Verwaltungs- klage). The composition and jurisdiction of the ad- ministrative courts has been considered in the discus- sion of the judicial functions of the administration, and it need here be emphasized only that the object of the whole system, as far as the individual complainant is concerned, being to safeguard his rights against unlawful infringement by the administration, the ordinary rules of judicial procedure calculated to insure a fair and speedy trial have been applied. As seen above, when the law permits the administra- tive judicial remedy, the administrative protest is in general excluded. But in the case of police orders, whether of the rural local authorities or smaller cities, or of the circle director, city circles or larger cities, complaint may be instituted before the circle and dis- trict committees sitting as administrative courts. This is admissible as an alternative remedy, provided it is claimed that there has been an error of law injuring the legal rights of the complainant, or that the facts did 1 Zustandig. Gesetz, 1883. 196 PRINCIPLES OF PRUSSIAN ADMINISTRATION not exist on which the authority could have based its order. The instituting of the one kind of proceedings precludes the other, and in case of doubt the proceeding will be regarded as administrative protest. So also if both are simultaneously begun, the complaint is dis- continued. In case, therefore, an individual feels himself preju- diced by an order of the administration which he con- siders unfair, but not in violation of any legal rights, he can use only the method of formal protest to the higher authorities. But if he can show an injury to a legal right, he may remove the matter from the hands of the official hierarchy by instituting proceedings before the administrative court. In the one case, his basis for action is broader; in the other, his procedural pro- tection is better. Direct proceedings to question the validity of adminis- trative acts and to have them annulled or amended are therefore to be instituted before organs of the adminis- tration, either the active administrative bodies or the administrative courts. But collaterally, the legality of such acts may be brought before the ordinary courts, which, though not competent to affect the act as such, may furnish protection to the individual concerned. We have seen that protection may be afforded by the ordinary courts against illegal acts of the administration, when an individual appears as defendant in a case based PROTECTION OF THE INDIVIDUAL 197 on such administrative act, as for instance in the im- portant class of cases in which an individual is tried for the violation of a police ordinance before the regu- lar criminal courts, and pleads the illegality of the act. The same is true in case of a civil action against an indi- vidual for damages, resulting from his failure to perform a duty imposed upon him by administrative action. But aside from this passive protection accorded to an individual as defendant, he may invoke the active inter- vention of the ordinary courts by appearing as plaintiff in a civil action for damages caused by illegal acts of the administration. 1 The imperial civil code provides that an officer who wilfully or negligently violates a legal duty owed a third person must answer in damages to such person. 2 Such a case is brought before the ordinary courts, which must determine whether violation of an official duty has occurred and whether that duty was owing to the plaintiff. There is no liability if the officer has disobeyed a service order merely, or if his action was only inexpedient, not unlawful. Actual pecuniary dam- ages alone are recoverable except in extraordinary cases. The liability of the officer rests on his violation of a duty, whether he is exercising sovereign governmental functions, or so-called proprietary functions; that is, whether he is representing the state or other public 1 Georg Meyer, " Staatsrecht," 149; Fleiner, 16 ; Otto Mayer, I, 17. 2 B. G. B. 839. 198 PRINCIPLES OF PRUSSIAN ADMINISTRATION corporation in its superior character as government, or in its coordinate character as a subject of the private law. He may, however, not be solely liable or not liable at all, because of the liability of superior officers or or- gans. So if he acts in execution of an order of a superior, that superior is liable in his place. Furthermore, by the imperial civil code, 31 and 89, the state or public corporation is concurrently liable for the acts of its rep- resentatives in the exercise of proprietary functions. 1 But the liability of the state for wrongful governmental acts of its officers has been left by the empire to the regulation of the single states. 2 In the exercise of this power, Prussia has passed a law concerning the liability 1 The distinction between the government when acting in the exercise of its sovereign power (governmental functions) and when acting as a private being on equal terms with individuals (proprietary functions) is of wide-reaching importance. For on the determination of that question depends the further question whether in a given case the rules of private law shall be applied or those of the public law, which often lead to wholly different results. There is no hard and fast criterion for the decision, and in many cases it may be very difficult to determine in which aspect the acts of the government are to be viewed ; but in general when the government acts just as any individual might act who is not in possession of the superior powers of the government, then it exercises proprietary functions. When, however, its action rests on its sovereign power as government, beyond the sphere of private action, then it exercises governmental functions. So contracts of sale, rental or em- ployment, borrowing of money, etc., are proprietary acts. On the other hand, the levying and collection of taxes, the exercise of the police power, etc., are governmental acts. In the former case, the individual stands on an equal footing with the government ; in the latter, he is subject to its commanding power. 2 E. G. to the B. G. B. Art. 77. PROTECTION OF THE INDIVIDUAL 199 of the state and its public corporations for illegal acts of officers in the exercise of governmental powers. 1 This law provides that if an officer, state or local, is guilty of an act in the exercise of governmental functions which would make him answerable in damages under the im- perial law, the state or local corporation shall be answer- able in his stead. Furthermore, the government extends its own liability to those cases in which damage has resulted from acts of the officer committed involuntarily when in a state of unconsciousness or mental aberration, when consequently the officer himself would not be liable. On the other hand, it repudiates liability for acts of of- ficers who are remunerated solely by fees for the official acts in question. Though such suits for damages are instituted in the regular courts, the administration may by means of the proceeding known as the " raising of the conflict" (Kon- flikterhebung, described, above p. 189) submit the pre- liminary question as to whether the officer has been guilty of an excess of jurisdiction or an omission of duty to the decision of the supreme administrative court. Among the factors of protection for the individual against illegal acts of the administration must be men- tioned the criminal liability of the officers, which, though not constituting a remedy or means of restitution for the individual after his injury, does exercise a preventive 1 Law of Aug. i, 1909 (G. S. 1909, p. 691), S. S. p. 374. 200 PRINCIPLES OF PRUSSIAN ADMINISTRATION influence in his favor. 1 Official crimes are tried in the regular proceedings before the criminal courts. Official misdemeanors are tried either before special disciplinary courts or in the case of the lesser offences by the superior officials. Of a wholly different nature from the injury an indi- vidual may suffer from unlawful acts of the administration, and against which the various means of protection con- sidered above may be invoked, are damages resulting from the lawful acts of the government through its administrative organs. So the individual may have his property rights directly transferred to another for public purposes by the exercise of the right of eminent domain. Or he may be injured in his property rights as a result of laws or ordinances making those rights useless, as by the prohibition of an industry, or the state monopolization of public utility. Or further he may lose his property by acts of the administration in the lawful exercise of the police power. In none of these cases has the individual been damaged through a tort, and in no case has he an inherent right to com- pensation. 2 A right to compensation exists, and exists in large measure indeed, but only on the basis of legis- lative provisions. No general rule as to compensation 1 Georg Meyer, " Staatsrecht, " 148. 2 Fleiner, 17 ; Anschiitz, " Verwaltungsarchiv," V, p. i ; Otto Mayer, H, 53, 54. PROTECTION OF THE INDIVIDUAL 2OI has been laid down, but special regulations are in force | for the various cases in which an individual may be damaged by lawful administrative action. The exercise of the right of eminent domain by the administration has been minutely regulated in Prussia with a view to adequate protection and compensation for the individual affected. The constitution declares (Art. 9) that private property is inviolable and can be taken away only in the interest of the public welfare upon compensation previously paid, as the laws shall de- termine. In accordance therewith, there was passed in 1874 the law as to expropriation, 1 subsequently comple- mented and amended by various state and imperial enactments. The proceeding can be begun only by the minister. The determination of whether expropria- tion is to be undertaken, and to what extent, is reached by the district committee, against whose decision ob- jections are considered in a public hearing. After the plan has been determined, protest being allowed to the minister, the question of compensation is discussed and determined in the same way by the district committee on the basis of estimates made by sworn experts. The full value of the property is to be paid, including all resulting damages to the owner. Against the decision of the committee as to the amount of compensation, the owner may bring suit in the ordinary courts within six J Law of June n, 1874 (G. S. 1874, p. 221), S. S. p. 1464. 202 PRINCIPLES OF PRUSSIAN ADMINISTRATION months. After final determination, and upon payment or guarantee of the compensation, the district com- mittee declares the title to have passed. In many cases, furthermore, where there has been no expropriation, but a damage resulting to private property through governmental acts of the administration, the courts recognize a right to damages either on the basis of a legislative enactment or even sometimes of custom- ary right. 1 The Prussian general code of 1794 (Introduction, 75) declared that the state owes compensation to him who is required to sacrifice his special rights and privileges for the general good, and on the basis of the principle there expressed the courts have founded a liability in many instances. Other acts specifically give a right to compensation. So the imperial law of 1900, regarding contagious diseases, requires compensation to be paid in certain cases when an individual, by reason of quarantine, has lost his wages, or when his effects have been injured or destroyed by disinfection. 2 Similar provisions appear in the imperial law concerning contagious diseases of animals, where compensation is to be paid for animals killed under the provisions of the law. 3 The claim to 1 Fleiner, p. 251. 2 Imp. Law of June 30, 1900 (R. G. Bl. 1900, p. 306) ; S. S. p. 1492, 28-34; Law of Aug. 28, 1905 (G. S. 1905, p. 373), S. S. p. 1502, 14-24. 3 Imp. Law of June 26, 1909 (R. G. Bl. 1909, p. 519), S. S. p. 1514, 66-73. PROTECTION OF THE INDIVIDUAL 203 compensation in case of change of streets rests on a customary right, though considered by a legal fiction to grow out of an implied servitude. There remains to be mentioned, under the head of protection to the individual as against the government, that in Prussia the state in relation to its property rights as such, distinct from any governmental powers, is a subject of private law. From this point of view, the exchequer (Fiskus) is bound by the rules of private law and subject to the jurisdiction of the ordinary courts. This was true in Prussia before the Empire and was continued by the imperial legislation. As regards his contract rights, therefore, with the state as with its public corporations, the individual stands on the same footing as if he were dealing with a private individual. CHAPTER VI THE LAW OF ADMINISTRATIVE OFFICERS* IN the days of the feudal state there was no branch of the law dealing with the rights and duties of public officers, for the evident reason that there were no public officers. Services were rendered for the feudal lord on the basis of contract agreements regulating the conditions of service. With the development of the state idea from the patrimonial basis to that of a sover- eign unlimited monarchy, the contract relation between the ruler and his agents was superseded by a one-sided, unlimited power of disposal. From the accession of the Great Elector, 1640, to the death of Frederick the Great, 1786, the officers in the service of the state were as un- protected against the acts of the monarch as were private individuals against executive acts in general.^ The efforts of the Prussian officialdom to fortify their position by protective legislation led to the codification in the General Code of 1794 of the rights and duties of 1 Meyer-Anschiitz, 142 ff. ; Anschiitz, in Holtzendorff's " Encyklo- paedie," p. 587 ff. ; Otto Mayer, II, 195 ff. ; Laband, I, 44ff.; Born- hak, " Preussisches Staatsrecht," II, 87-96. 204 THE LAW OF ADMINISTRATIVE OFFICERS 205 public officers. 1 This act, by which the tenure of officers was no longer dependent on the will of the king alone, was the earliest comprehensive enactment regulating the legal relations of officers, and still constitutes the basis of the law to-day. The constitution guaranteed the independence of judicial officers and provided for a general law for the proper protection of the non-judicial officers against arbitrary deprivation of office or income. Such a law has, however, never been passed, and in its stead separate enactments regarding various phases of the law of officers, such as misconduct in office, transferment, retirement, salary, pensions, etc., constitute, together with the pro- visions of the General Code mentioned above, the body of the law of officers in Prussia. 2 Public officers are persons standing in a continuing service relation to the state, which relation is voluntarily entered into, but when once assumed, constitutes a status governed by public law. This characterization dis- tinguishes the officer, on the one hand, from employees of the state whose relation rests on a bilateral contract similar in all respects to a contract between private in- dividuals, and on the other, from those public servants who are obliged by law to undertake the duties imposed 1 A. L. R. 1794, Title 10, Part II. See Meyer- Anschiitz, 142, note 5, for an enumeration of the sup- plementary laws. 206 PRINCIPLES OF PRUSSIAN ADMINISTRATION upon them. So the contractor who voluntarily con- structs a public building for the state is no public officer ; no more is the soldier or juryman who is compelled by law to serve. The real nature of the official relation is therefore a status of special subordination into which the individual has voluntarily entered, but in which he must meet all the legal requirements of his position. It is no essential of a public officer that he actually clothe an office. If he is under obligation to administer an office, if given him, he is an officer, though he may for a longer or shorter time be without one. Nor is the right to a salary an essential attribute of an officer; there are numerous classes of unsalaried officers. Nor is the length of service, whether, as usually, for life, or for a period of years, determining for the question of the existence of the official relation. Nor need the officer, to be such, devote his entire time to the office, though that is the rule. Furthermore, it makes no difference what the character of the duty performed may be, whether governmental or proprietary, intellectual or physical. Officers are divided into state and local, or immediate and mediate officers; that is, those who receive their office from the state organs and those who receive it from bodies for local self-administration. But in their legal aspects, these officers are all treated in the same way, and so there is no need for distinct consideration. Military officers, though falling within the definition of THE LAW OF ADMINISTRATIVE OFFICERS 207 the term, constitute a particular class for themselves not governed by the general law of officers. Judicial officers are also accorded especial treatment, in certain particulars, though, in general, subject to the same provisions. We shall consider here, therefore, the law of administrative officers only ; in respect to the creation of the relation, its rights and duties, and its termina- tion. The official relation is created as a rule by appointment. In case of certain local officers, election has been pro- vided for by law. Appointment is the unilateral act by which an individual is endowed with the character of a public officer. The entire appointing power belongs to the king, unless otherwise provided by law. 1 He may exercise this power himself or by delegation to ministers or subordinate authorities. There is no gen- eral legal obligation to accept an office, but in the case of many honorary offices of local self-administration, the law has declared such an obligation. On the other hand, there is no legal right to appointment, even after proving eligibility. Public offices are open to all alike who meet the legal requirements. 2 These include: (a) the full possession of the honorary rights of citizens. Among such honorary rights is the right to hold a public office, the loss of which, according to the imperial criminal code, is attached 1 Const, of Prussia, Arts. 45, 47. 2 Const, of Prussia, Art. 4. 208 PRINCIPLES OF PRUSSIAN ADMINISTRATION to a penitentiary sentence, and may be attached to a jail sentence. 1 (b) Certain qualifications, as evidenced by training. For the higher officers, there is required a period of three years' study in a uni verity law school, followed by the first state examination. This is followed by at least nine months' active service with a regular court, upon completion of which the title "Regierungs- referendar" is granted. As such, the candidate serves three or three and a quarter years, with at least three different administrative authorities and is then required to take a second examination in law, political science and economics. Upon passing this examination, he is given the title " Regierungsassessor " by the ministers of finance and of the interior. He is then qualified for the higher administrative service, and certain positions open only to such Regierungsassessors. So, for exam- ple, they alone are eligible to be members of the district governments, province presidents or assistants to the district presidents. Furthermore, the non- judicial mem- bers of the supreme administrative court and the non- elective members of the district committee must be chosen from among persons so qualified. 2 The require- ments for qualifications to judicial offices are regulated by imperial law, 3 in a similar manner. The qualifications 1 Strafgesetzbuch, 31-37. 2 Law of August 10, 1906 (G. S. 1906, p. 378), S. S. p. 369. * G. V. G. 1877, 2-5, 149 (R- G. Bl. 1877, p. 41)- THE LAW OF ADMINISTRATIVE OFFICERS 2OQ for lawyers and intermediate administrative offices are also determined by law. 1 Citizenship is no longer a legal requirement of eligibility to office. As regards foreigners, the federal law of June i, 1870, provides that citizenship, both state and federal, is conferred by the appointment to an office in a state, 2 and as regards German citizens of other states, the imperial constitution forbids their being treated any differently as regards eligibility to office than are the citizens of the given state. 3 The giving of a bond, now required of a very few officers only, 4 seems to be a condition precedent to a valid appointment, but not so the taking of the oath of office. Though a writing is not made a formal condition in all cases by express law, the written form of appointment is necessary. With regard to local officers it is specifically required 5 and in other cases also a warrant or commission is the means of appointment. The beginning of the official relation is, therefore, determined by the de- livery of the writing. 6 Usually simultaneous with this is the investure with an office. But as has been seen, this is not necessarily the case, for the essence of the 1 See Hue de Grais, 63. 2 Law of June i, 1870 (R. G. Bl. 1870, p. 355), S. S. p. 72. 'Imperial Const. 1871, Art. 3. 4 Law of March 7, 1898 (G. S. 1898, p. 19), S. S. p. 374. 6 Law of July 30, 1899 (G. S. 1899, p. 141), S. S. p. 1048. 6 A. L. R. Title 10, Part II, 84. 210 PRINCIPLES OF PRUSSIAN ADMINISTRATION official relation is the obligation to take over an office, not the actual exercise of it, and officers without an office are not uncommon. The general rule is that officers are appointed for life and if nothing is expressed, that is understood. But for the lowest class of officers, appointments subject to removal are allowed and in the case of elective local officers, a definite term of years is generally provided. As soon as the individual has become an officer, he is the subject of new rights and new duties. His duties include, first, the obligation to take over an office and to administer it faithfully according to the law. 1 He must if a professional officer, give his entire continuous energy to the exercise of his duties, and can take over other activities only as permitted by law. He may lay aside his duties only upon leave of absence granted or when compelled thereto by sickness or other public duties. 2 Election to the Imperial Reichstag or to the Prussian Landtag of itself excuses the officer for the time being from the performance of his regular duties. 3 Secondly, officers are under obligation to keep secret all official matters not intended for publication. They may not be compelled to testify concerning such official 1 Instr. Oct. 23, 1817 (G. S. 1817, p. 248), 8. S. S. p. 137. 2 See Hue de Grais, 65. 8 Imperial Const. 1871, Art. 21 ; Prussian Const. 1850, Art. 78. THE LAW OF ADMINISTRATIVE OFFICERS 211 secrets before the courts without consent of the superior authority. 1 Thirdly, the officer is bound to obedience towards his superiors in office. This duty is clear until it comes into conflict with the other duty of every officer to act in accordance with the constitution and the laws. What action is the officer to take in case the order of his superior is or appears unlawful and to what extent is the officer entitled to judge of that fact? The laws are silent on this subject and among the authorities there is the great- est conflict of opinion. 2 The underlying principle would seem to be that of absolute obedience, with no right to examine the legality of the orders, save in exceptional cases. These cases include orders issued without juris- diction by the superior officer; orders imposing duties not included within the jurisdiction of the lower of- ficer, orders issued without the formalities required by law and orders violating a prohibition or criminal law. In such cases, the officer must refuse obedience if he is convinced that the order is in any of the above ways illegal. Aside from the limitations imposed on the officer as regards secondary employments or offices, he may not accept decorations or presents without permis- sion. 1 Ziv. Prozess Ordnung, 376, 408, 483 ; Straf Prozess Ordnung, 53> 76. 2 See Meyer- Anschiitz, pp. 513, 514 and foot-notes. 212 PRINCIPLES OF PRUSSIAN ADMINISTRATION The consequences of a violation of duty may be threefold : (a) The officer may be mulcted in damages ; (b) he may be proceeded against by disciplinary proceed- ings ; or (c) he may be criminally prosecuted. (a) We have seen that the imperial and the state laws regarding liability of officers in damages enlarged the individual's right of action from one against the officer to one against the state or local corporation. In the case of damages arising from proprietary acts of the officers, the liability of the state or corporation exists in addition to that of the officer. In the case of the misuse of governmental powers, the state is liable in place of the officer. But the officer himself is liable over against the state or corporation for the damages so paid. 1 (b) The disciplinary punishment for misconduct in office is regulated in a special law applicable to all non- judicial officers. Misconduct in office consists in violat- ing the duties of the office or in conduct in or out of office unworthy of the dignity of the calling. Disci- plinary punishments are of two kinds, removal from office, and all lesser punishments (Ordnungsstrafen). These latter include warning, reprimand, fine and, in case of lower officers, arrest for not more than eight days. Removal from office, which includes both transfer to another office and dismissal from service with con- 1 Law of Aug. i, 1909 (G. S. 1909, p. 691), S. S. p. 374. THE LAW OF ADMINISTRATIVE OFFICERS 213 sequent loss of title and right to a pension, can only follow after a formal disciplinary proceeding before the authorities and in the manner required in the law. For the trial of such cases, a special disciplinary court exists in Berlin, with jurisdiction over officers ap- pointed or approved by the king or his ministers. For other officers, the appointing provincial authorities are the disciplinary bodies. Appeals are permitted in either case to the ministry of state. The dismissal of an officer appointed or approved by the king must be confirmed by him. In the case of officers of the local public corporations, the administrative courts are the disciplinary tribunals. 1 An officer is suspended from office if a preliminary decision of a criminal or disciplinary court has sentenced him to dismissal from service. He may also be suspended by act of a superior authority if a criminal or disciplinary proceeding has been begun against him. The lesser punishments may be imposed by the next superior administrative authority, within certain limits, subject to appeal to the higher authorities. Disciplinary proceedings may not be instituted for the criminal punishment of acts which are made crimes in office by the imperial code. Nor may such proceed- ings be instituted or continued after a trial, whether Zust. Ges. 1883, 20, 94, 95; Kr. O. 1872, 68; L. V. G. 1883, U, 32, 395 Prov. O. 1875, 51, etc. 214 PRINCIPLES OF PRUSSIAN ADMINISTRATION civil or criminal, has been begun involving the same facts. Aside from these disciplinary measures for offences, an officer may be subjected to disciplinary acts of his superior calculated to enforce obedience to an order. Furthermore, he is subject to measures "for the good of the service," which, though not applied as punish- ments, operate to his disadvantage. Such are a transfer in office, temporary relief from duty on diminished pay and earlier retirement on a pension. (c) With regard to punishment for crimes, officers are liable for crimes just as individuals are. But in addition to the general provisions as to punishment for crimes, there are special clauses in the imperial criminal code relating to crimes of officers. Some provide a heavier punishment for criminal acts if committed by officers; 1 in others, acts are made punishable only when so com- mitted. 2 Such trials can be held only before the regular criminal courts. If an act is at the same time a crime according to the criminal code and an act of misconduct in office, according to the disciplinary law, it may in certain cases be punishable in both proceedings. This is not a case of double punishment, for the same act con- stitutes two separate offences. But the criminal pro- ceeding always has priority, and, as seen above, prevents the commencement or continuation of a disciplinary 1 Strafgesetzbuch, 128, 129, 155, 174. * Ibid. 331-359. THE LAW OF ADMINISTRATIVE OFFICERS 215 action. If the criminal trial results in a conviction and sentence which involves the loss of office, all disci- plinary proceedings are excluded. 1 An acquittal by the criminal court does not prevent a subsequent disciplinary proceeding provided the act constituted in itself mis- conduct in office. Just as officers have special duties and obligations, as a result of their status, so they have also special rights, privileges and protection. In the interest of the public service, officers are granted special legal protection. The imperial criminal code makes it punishable by imprisonment to compel an officer by force or threat to act or refrain from acting in his official capacity. So also the interference with an officer in the execution of his duty is an offence punishable by imprisonment. 2 It has been seen that the officer has no right to demand an office. But if he is an officer for life or removable only for certain causes, then he has a right to the status of an officer and to his prerogatives as regards rank and remu- neration. The honorary rights of rank and title are con- 1 According to the imperial criminal code, a penitentiary sentence involves the ineligibility to fill a public office. Furthermore, in case of jail sentence for three months or more, the loss of the honorary rights of citizens, including the eligibility to public office, may be imposed for a period of one to ten years, as part of the sentence, but beginning after serving the imprisonment. The Prussian disciplinary law provides in addition that a sentence to imprisonment for more than a year or imposing police supervision carries with it eo ipso loss of office. 2 Straf. G. B. 113, 114. 2l6 PRINCIPLES OF PRUSSIAN ADMINISTRATION f erred with the commission. Higher officers are divided into five classes; intermediate officers, into four, by a large number of royal decrees and orders. 1 The remuneration of officers includes salary, special reimbursements and allowances. The officer is entitled to enforce his claim for salary through the ordinary courts. 2 In the interests of the officer and of the service, limitations are imposed on his freedom of mortgaging or assigning the salary. 3 In addition to cash salary, payable quarterly in advance, there are official quarters or allowances for rent. The officer is entitled to reim- bursement of money expended in official activity. The financial rights of an officer include also his claim to a pension as provided by law. 4 Furthermore, his survivors are entitled to allowances which may be claimed in the ordinary courts also. 5 The official relation may terminate in one of several ways. Its termination may either be automatic, as a result of some other event, or be brought about by special proceeding. So the relation terminates through death of the officer, expiration of the term, if appointed for a 1 See Hue de Grais, 70. 2 Law of May 24, 1861 (G. S. 1861, p. 241), S. S. p. 288; B. G. B. iQ7- 8 B - G. B. 394, 400, 411. 4 Law of March 27, 1872 (G. S. 1872, p. 268), S. S. p. 423 and supple- mentary laws. 6 Law of May 20, 1882 (G. S. 1882, p. 298), S. S. p. 439; Law of March 28, 1888 (G. S. 1888, p. 48) ; Law of June i, 1897 (G. S. 1897, p. 169), etc. THE LAW OF ADMINISTRATIVE OFFICERS 2 17 particular period, or conviction in a criminal case in- volving loss of office. The second manner of termina- tion may occur, firstly, through voluntary resignation. There is no legal right to resignation according to the Prussian law, for it is left to the discretion of the appoint- ing authority to refuse acceptance in case the general good requires it. 1 Secondly, the officer may be retired on pension, either with or without his consent. Thirdly, the official relation may terminate through his dismissal. In the case of the ministers and of the lower officers ap- pointed subject to removal this dismissal may be arbi- trary, but in general, as has been seen, it can occur only as a result of a disciplinary trial for an offence in office. 1 A. L. R. 1794, Title 10, Part II, 95, 96. CHAPTER THE POLICE POWER IN the introductory chapter we considered the origin and development of the concepts, internal adminis- tration and police. We saw that the term police, originally designating all secular activity of the state, was gradually narrowed in scope by the successive establishment of special branches of state activity for foreign affairs, justice and finance, leaving the term police negatively defined as all that residue of state activity not comprised within one of the four other departments. /In this sense police was identical with internal adminis-i / tration, as we saw, and comprised two classes of activity] * -the so-called security police and the welfare police] The former was concerned with public safety and health by preventing action injurious thereto ; the latter under- took the furtherance of public welfare by positive pro- motive measures. Furthermore, we saw that later on the term police came to be still more restricted by limitation to the former of the two types of police activity and that as a result of the provision in 10, n, 17 of the General Code of 1794, 218 THE POLICE POWER 2IQ the function of the police was denned as the preservation of public safety and order. This is the general clause on which the police authorities must rest their power to interfere with the liberty or property of an individual and this is the sense in which the term police is generally understood. The police jurisdictional clause in the General Code of 1794 establishes another important principle of police action. The words of the jurisdiction definition are that it is the function of the police to adopt the necessary measures for the maintenance of public safety and order, from which qualification has followed the principle of commen- surability of police action. That is to say, an inter- ference on the part of the police in the liberty and prop- erty of an individual, even though for legal ends, must not be greater than necessary for the accomplishment of those ends. There is also a broader sense in which the term police is used, based on the fact that power to interfere with the liberty or property of individuals has been granted by law in many cases not falling under the general definition of police activity. Every branch of internal adminis- tration, whether engaged in preventing undesirable actions or in furthering institutions for the public good, requires a measure of coercive power for the accomplish- ment of its ends. This power, which must always be 220 PRINCIPLES OF PRUSSIAN ADMINISTRATION given by express provision of law, is therefore an exten- sion of the ordinary police power and is sometimes termed "administrative police," in distinction from the general police power. We shall not consider here that activity of the police organs which consists in assisting the criminal jurisdiction of the courts. In the apprehension of evil-doers and in the execution of judicial sentences, the police adminis- tration is not exercising an independent function, but is merely auxiliary to the criminal courts and hence a part of the judicial machinery. So also in regard to the jurisdiction of police authorities to inflict punishments for minor offences. Here the authority acts judicially in the nature of a court of lowest jurisdiction, not as an administrative organ, and need not therefore be con- sidered from this point of view. In the chapter on the organization of the administra- tion, we saw that the organs for the police functions are those of state administration in general. The local police authorities in the cities are either special police authorities (Polizeiprasidium), the magistrat or the mayor. In the rural areas there are considerable variations in the various parts of the state, for it may be either the precinct director, and this is the general rule, or the directors of joint communes, or the mayor, as the case may be. Above the local police authorities, which even when THE POLICE POWER 221 organs of local self-administration act in this capacity purely as state authorities, is the hierarchy of officials, circle director, district president, province president and minister of the interior. These authorities are both controlling authorities and act originally in specific police matters. The general activity of these organs in the issuing and enforcing of police ordinances and of police orders was discussed in the chapter on administrative action. A word remains to be said about the immediate execu- tive organs of the police, whose powers are somewhat different from those of the ordinary officers of police !/ administration. 1 The executive police comprises three classes, the state gendarmes or military police for the country (Gendarmerie), the state police in the cities, with special state police departments (Schutzmanschaft) and the local police in other communes (Gemeinde- polizei). The Gendarmerie was constituted in the first part of the last century on the French model and is organized on a strict military system, though not part of the military force itself. The gendarmes are subor- dinate to the civil officers, especially the circle directors, and must render assistance to the local police authorities when called upon to do so. In many of the more impor- tant cities, the police functions, instead of being exer- cised by the mayors, which is the normal condition, 1 See Hue de Grais, 217. \ 222 PRINCIPLES OF PRUSSIAN ADMINISTRATION have been intrusted to special state organs as permitted by law. 1 In those cities the executive police is a state organization, subject to a state official known as police president or police director, with a quasi-military system of subordinates. In the smaller cities and in the rural communes, the executive police, though exercising state functions, is composed of local officers and controlled by the organs for local self-administration. The executive police not only has special powers in its capacity as an arm of the criminal justice, but also in its proper administrative functions. So besides the cases of arrest for criminal actions or violations of the law, a] policeman may take individuals into custody either for the protection of the individual himself or for the pres- ervation of public safety and order. But such custody cannot exceed one day in duration and must then be followed by liberation or by commitment to the proper authorities. In exceptional cases, the policemen are permitted to resort to the use of weapons, if no other way of meeting an emergency exists. We shall now consider more in detail the laws govern- ing special branches of police activity. Security police comprises, as is seen also in the provisions of the General Code itself, two forms of protective measures, those calculated to safeguard the state and society itself against dangers from within, and those intended for the 1 Law of March n, 1850, 2. THE POLICE POWER 223 security of the individuals who make up the state. The former consist of limitations on the liberty of motion and domicile, on the liberty of association and assembly, on the liberty of speech and of the press. The latter comprise the protective measures against natural dan- gers, fire, water, etc., against hazardous occupations and against dangers to the public health. Safety of the State Considering, then, to begin with, the police measures directed to the protection of the state and society as a whole, we see that they consist firstly in limitations of the liberty of motion and of domicile. The liberty to change one's domicile within the state at will is his- torically a recent right in Prussia. In the early state, each community or feudal owner could refuse permission to settle within his district, and as late as the eighteenth century the state police imposed considerable restrictions. In the early part of the last century this liberty of motion and abode was gradually developed, and in 1842 a law formally established it, with certain restrictions. 1 In 1867 the legislature of the North German Federation regulated the whole subject by a special law partly superseding the state laws, partly preserving their applicability. 1 Law of Dec. 31, 1842 ( G. S. 1842, p. 5), S. S. p. 104. 224 PRINCIPLES OF PRUSSIAN ADMINISTRATION By this law, every federal citizen has complete freedom to remain in any place within the country where he is able to provide himself with a living, and may acquire property and engage in an occupation where he will. Neither religious belief nor lack of local citizenship may be made ground for interfering with this right. But the limitations imposed by state law on the liberty of abode of persons who have been punished for offences are expressly left untouched, and persons subjected by the laws of a state to such limitations, and persons who have been punished within a year for continued beggary or vagrancy, may be excluded from every other state. In Prussia the limitations imposed on persons punished for offences are contained in the law of 1842. The require- ments as to the duty of all newcomers to announce their arrival to the police authorities also remain in force, for these are not limitations on the liberty of abode in violation of the imperial law. But failure to obey such requirements cannot be punished with the loss of the right of domicile. The only other valid cause for refusing a newcomer the right of settlement is contained in the power of the com- mune to exclude paupers or to expel them in the period between their arrival and the accrument of a legal claim for support. A commune may not levy a contribution on newcomers, nor may it demand the payment of taxes until after a sojournment of at least three months. All THE POLICE POWER 225 other restrictions of the liberty of abode of federal citi- zens are unlawful. Banishment is therefore illegal when applied to federal citizens. These provisions are, however, not applicable to for- eigners, who may be expelled by the single states when that is deemed desirable. The imperial criminal code expressly permits expulsion by the state authorities in certain cases, 1 but beside these express provisions, it is a recognized principle that a state has the right to expel foreigners whose presence is deemed dangerous to public safety and order. 2 As this right of the single states in Germany with respect to foreigners has not been limited by the Empire, it remains intact. Nor has a foreigner any right to bring complaint in such a case before the administrative courts, though he may protest to the higher authorities. 3 The converse of the right of the state to expel foreign- ers is the power to prevent its own citizens from leaving the country. This right was formerly an unlimited one, but was restricted in Prussia by Art. 2 of the constitution, which allowed the liberty of emigration to be restricted only with regard for the requirements of military service. The imperial criminal code makes it a crime punishable by fine or imprisonment for one liable 1 Strafgesetzbuch, 39 (2) ; 284, paragraph 2 ; 361 (2) ; 362, para- graph 4. 2 Meyer-Anschiitz, p. 795 ; O. Mayer, II, p. 456. 8 L. V. G. 1883, 130. Q 226 PRINCIPLES OF PRUSSIAN ADMINISTRATION to military service to leave the federal territory without permission. The police authority charged with putting into effect these different limitations of the freedom of choosing one's abode is in general the district president. He may im- pose the legal restrictions on the freedom of abode of ex- convicts, and is the authority for decreeing the expulsion of foreigners and for preventing the emigration of citizens in the cases sanctioned by law. The right of refusing an individual permission to settle in a commune on the ground of pauperism is exercisable by the commune executive. These various limitations on the liberty of change of abode constitute the first class of restrictions imposed on the individual in the interests of the state or society as a whole. The second class comprises the limitations on the freedom of the press. Liberty of the press did not exist in Prussia prior to 1848. Before that time, a censorship existed which forbade the printing of any and all material without previous permission. The revolu- tionary movement of 1848 resulted in the declaration of the liberty of the press and the abolishment of the censor- ship, both of which principles were embodied in the con- stitution two years later. Limitations of the liberty of the press could henceforth be imposed only by act of the legislature, not, as previously, by administrative action. An act of May 12, 1851, regulated the liberty of the THE POLICE POWER 227 press in Prussia, but this was partly superseded by the provisions of the federal industrial code of 1869 (Gewer- beordnung). Then by the constitution of the Empire in 1871 the jurisdiction of the federal government was extended to the supervision and legislative regulation of the press. 1 In the exercise of this jurisdiction, a law was passed on May 7, 1874, which expressly excluded all limitations on the right of printing, except those imposed or permitted by the law itself. These two imperial laws, then, the industrial code (Gewerbeordnung) and the law concerning the press, together with such state acts as are expressly sanctioned in the imperial enactments, contain the law concerning the limitations on the liberty of the press. The imperial law concerning the press 2 applies to all printed publications, that is, all products of printing presses or of other mechanical or chemical reproductions intended for dissemination, whether writings, pictures or music with words or explanations. Dissemination in- cludes also the affixing or exhibiting of publications in places accessible to the public. The right to pursue publication as a business cannot be denied either by act of the administration or by decree of the courts. It is subject to such limitations and burdens only as the 1 Art. IV, 16. 2 Law of May 7, 1874 (R. G. Bl. p. 65), S. S. p. 326, not applied to the territory Alsace-Lorraine, for which a special law of Aug. 8, 1898. 228 PRINCIPLES OF PRUSSIAN ADMINISTRATION imperial industrial code imposes. 1 These include the duty to notify the authorities of the opening of the business, 2 the requirements of a license from the local police authority for the sale of publications in public places, 3 the prohibition on the peddling of publications calculated to offend religious or moral sensibilities or those solicited through offers of prizes or winnings, or those appearing in instalments and not showing plainly the total price. In every case of the peddling of publi- cations, the pedler must carry a list of the publications dealt in and submit it for approval to the administrative authorities of his domicile. 4 The dissemination of publi- cations when not pursued as a business may be forbidden by the local police authorities in certain specified cases. 5 In every publication must appear the name and address of printer, publisher and editor. 6 Papers and periodicals appearing oftener than once a month must also be pro- vided in every number with the designation of the legally responsible editor, who must be an independent resident of the Empire and not deprived of the honorary rights of citizens. In the case of all periodicals, not purely devoted to the interests of the sciences, arts or crafts, a copy of each number must immediately upon distribution 1 Gewerbeordnung, June 21, 1869 ; S. S. p. 1538. 2 G. O* 14. 3 Ibid. 43- 4 Ibid. 56 (12). 6 Ibid. 5. 6 Excepted from 'this requirement are printed business forms, price lists, visiting cards, etc., and party ballots if merely designating purpose, time and place of the election and the names of the candidates. THE POLICE POWER 22Q be delivered to the police authority of the place of publi- cation. Periodicals which carry advertising are obliged to receive and print official communications at the regular rates, when requested thereto by the police authorities. Periodicals are obliged to print rectifications of facts stated therein, free of charge. Foreign publications may be forbidden by the im- perial chancellor if twice convicted within one year of punishable offences resulting in orders of confiscation. In time of war or war danger, communications con- cerning the movement of troops or means of defence may be forbidden by the imperial chancellor. Invitations through the newspapers to contribute funds for the pay- ment of fines imposed for criminal acts, are forbidden. Papers may not publish indictments or other official docu- ments in a criminal proceeding, until the same have been publicly announced. The responsibility for criminal acts committed by means of publication is determined by the ordinary pro- visions of the criminal law. In case of periodicals, the responsible editor is punishable as factor unless his liabil- ity is excluded by special circumstances. In case the content of a publication constitutes a ground for criminal action, the responsible editor, the publisher, the printer and the one engaged in dissemination may be liable for criminal negligence so far as not liable as principals or accessories if they have failed to use due care to 230 PRINCIPLES OF PRUSSIAN ADMINISTRATION prevent such contents from being published. The prosecution must occur within six months. Confiscation of publications without judicial decree can occur only (i) if the required forms as to name and address of publisher, printer and responsible editor have not been observed, or if it is a foreign publication, whose distribution has been forbidden; (2) if it contained disobedience to an order of the chancellor, forbidding the publishing of military information in time of war or danger; or (3) if the contents contain a violation of the criminal laws by inciting to treason, by offending the emperor or ruler of a state, by urging disobedience to the laws, by inciting to acts of class hatred, or by reason of their immoral or obscene character. In case of such administrative orders of confiscation, a decision by a court of criminal jurisdiction, confirming or disapproving the seizure, must be sought by the state's attorney within twenty-four hours and be rendered within another twenty-four hours thereafter. If the police authorities have acted without direction of the state's attorney, they must report their action to him within twelve hours, and he may either order the confiscated goods returned or request confirmation of the action by the courts. If the confiscating authority has not received such judicial confirmation within five days, the articles must be returned. A decision of the court disapproving the seizure is final. A decision confirming the seizure be- THE POLICE POWER 231 comes inoperative if criminal prosecution in the matter has not been instituted within two weeks of such con- firmation. Finally, the imperial law provides that it does not affect the special laws concerning the press in times of war, or disorder, nor does it supersede the state laws regulating the public affixing or posting of bills and placards or the distribution of handbills. This is therefore still de- termined in Prussia by the law of 1851, which limits the kinds of placards or posters that may be affixed and requires a police permit for their posting in public places. 1 Nor does the imperial press law affect the state require- ments as to the library copies which in Prussia provide that one copy of every publication must be sent free of charge to the royal library in Berlin and one to the library of the province in which the publisher lives. 2 Special taxes on the press or business of publication are excluded by the law. These, then, are the limitations and the only limitations to which the liberty of press is subject in Prussia and, as far as state action is concerned, the only ones to which it can be subjected. The third class of limitations imposed on individual liberty in the interests of the safety of the state as a whole are the limitations on the liberty of association. The liberty of assocation includes both the freedom \, 1 Law of May 12, 1851 (G. S. 1851, p. 273), 10. z lbid. 232 PRINCIPLES OF PRUSSIAN ADMINISTRATION to form permanent societies and the freedom of assembly or of meeting together without any permanent organiza- tion. Like the liberty of domicile and the liberty of the press, the liberty of association is in Prussia a recent right born of the revolutionary movement of 1848. Prior to that time, societies in general were forbidden and political assemblies not allowed. On April 6, 1848, a measure of freedom of association was proclaimed and in 1850 was made one of the guarantees of the consti- tution for Prussian citizens. 1 Therein it was declared that all Prussians might, without prior permission, assemble peaceably and without weapons in enclosed spaces. Assemblies in the open were, however, left subject to the requirement of prior permission. The right to organize in societies for lawful purposes was also guaranteed to all Prussians in the constitution; but this right, as well as that of assembly, was expressly subjected to legislation in the interests of public safety. Political societies were left subject to limitations and temporary prohibitions by the legislature. The limitations permitted by the constitution remained the subject of state legislation until the Empire in the exercise of its legislative jurisdiction 2 began to regulate the whole matter of association. For many years, dis- connected laws were passed on the subject, until, in 1 Constitution of Prussia, 1850, Arts. 29, 30. * Imperial Const. Art. 4 (16). THE POLICE POWER 233 1908, the imperial law concerning associations codified the provisions on the subject. 1 The law begins by declaring the right of all citizens of the Empire to associate and assemble for lawful purposes. This right is subject to police restrictions only as sanctioned in this and other imperial laws. This means that state laws in the nature of police restrictions are invalid, with the express exception of measures of safety for the prevention of imminent danger to life and health of the members of an assembly. Other state regulations as to associations and assemblies, not in the nature of police restrictions, are therefore not for- bidden by the law. So acts forbidding state officers from participating in certain kinds of societies or assem- blies are not police measures, and therefore not in con- flict with the provisions of the imperial law. Societies for illegal purposes may be dissolved by ad- ministrative order, which order may be attacked before the administrative courts. Associations intended to exercise an influence on political affairs, so-called polit- ical associations, must possess a director or directors and a constitution. The director must deliver a copy of the constitution and a list of the officers to the local police authorities within two weeks. All subsequent changes in constitution or officers must in the same way be communicated to the police. The constitution and 1 Vereinsgesetz, April 19, 1908 (R. G. Bl. 1908, p. 151), S. S. p. 332. 234 PRINCIPLES OF PRUSSIAN ADMINISTRATION its amendments must be in the German language, unless otherwise permitted by the higher authorities. Public assemblies for the discussion of political sub- jects must be announced twenty-four hours before to the local police authority, with designation of the place and the time. But meetings publicly advertised need not be so announced to the police, nor need assemblies of voters for political purposes be announced between the official announcement of the day of election and the termination of the voting. Specially excluded from the concept "political assembly" in this connection are meetings of laborers and of employers for considera- tion of questions of the employment. Public meetings in the open, as well as processions on public ways and places, must be approved by the police. The organizer of the meeting or procession must request this approval at least twenty-four hours before, with designation of time and place. This approval must be in writing and can be refused only if public safety appears threatened by the assembly or proces- sion, which grounds must be communicated to the organizer immediately. This approval may by state act be replaced by a mere requirement of notice. Funeral and wedding processions need not be announced or approved and other classes of processions may, by act of the central state authorities, be excepted from these requirements. THE POLICE POWER 235 All public political assemblies must have a chairman who is responsible for the preservation of order and who may declare the meeting dissolved. The carrying of weapons at any public meeting or procession is for- bidden, except with special permission or by virtue of public authority to do so. The proceedings in public assemblies must be in German, except in special classes of cases, such as international congresses, and voters' meetings shortly prior to the elections. Further excep- tions by state legislation are permissible, or by adminis- trative action if not excluded by state law. The police authorities may send not more than two agents to every or any public meetings. These must declare themselves to the chairman or organizer of the meeting and must be given a suitable place at the meet- ing. These agents may declare the assembly to be dis- solved, with a statement of the reasons for such action, if the required evidence of proper announcement or approval is not apparent, if admission has been refused the agents, if persons illegally carrying weapons are allowed to remain in the meeting, if motions or resolu- tions are discussed containing incitement to crime, or if persons unlawfully using a foreign language are not, upon demand of the agent, refused the floor. In case a meeting is thus dissolved, the chairman may require a written statement from the police authority concern- ing the grounds for the order of dissolution, which may 236 PRINCIPLES OF PRUSSIAN ADMINISTRATION then be attacked before the administrative courts. Upon dissolution of an assembly, it is the duty of all present to depart. Minors under eighteen years of age are not per- mitted to be members of political associations nor to attend their meetings nor other public political meetings. The fines imposable for violations of the provisions of the law are either 150 or 300 marks. The law finally enumerates those provisions of existing imperial laws which are repealed by the law concerning associations and those provisions of the state laws which are not affected by the imperial law. These latter include the state regulations as to religious societies and processions, as to associations and meetings in time of war or public disturbance, as to agreements of rural laborers and servants, as to strikes, and as to the observance of Sundays and holidays. The protection of the imperial law accorded to the liberty of association is extended to German citizens only. Hence, foreigners who exercise this liberty, though bound to observe all the requirements of the imperial law as regards formalities, are not protected against restrictions imposed by the single states in the general exercise of their police power. To this extent, therefore, they are in a worse position than are citizens, which was true also with regard to the right of expulsion in the exercise of the police power. THE POLICE POWER 237 So far there have been considered the ordinary re- strictions which are or may be imposed in the exercise of the police power on certain individual liberties in the interest of the safety of the state. But there are, as was seen in certain provisions of the imperial laws regulating the press and the -right of association, ex- traordinary circumstances which may be met by ex- traordinary police measures. In case of mobs and riots, the police may use all means at its command to preserve order, and, if neces- sary, they may call upon the military forces accord- ing to Art. 5 of the constitution of Prussia. In more serious cases, there is the possibility of declaring martial law in threatened districts. The right to declare parts of the Empire to be in a state of war or a state of siege is given to the emperor by Art. 68 of the imperial constitution. 1 The conditions and effects of such a declaration were, until the passage of an imperial law 1 There is a conflict of opinion as to whether the right to declare por- tions of territory to be in a state of war is an exclusive right of the em- perors. The weight of authority is to the effect that the emperor alone has this right. Furthermore, the question is disputed whether the indi- vidual states may declare portions of their territory to be in a state of siege, as provided in 2 of the Prussian law of June 4, 1851 (G. S. 1851, p. 451), or whether that right is also annulled by the provisions of the imperial constitution. Here the weight of authority seems to incline to the view that Prussia has not the power of her own initiative to declare a district to be in a state of siege. (For a presentation of the opposing view, with references to the opinions on both sides, see Georg Meyer, "Verwaltungsrecht," 67, 68, and foot-notes.) 238 PRINCIPLES OF PRUSSIAN ADMINISTRATION on the subject, to be determined by the Prussian law of 1851, concerning the state of siege. 1 As no imperial law has been passed as provided for in the constitution, the provisions of the Prussian law are still in effect. This law provides that the declaration of the state of siege shall be publicly announced, both to the civil authorities and to the public generally, and that its effect is to transfer the executive power from the civil to the military authorities. The former are bound to render obedience to the orders of the latter. The military criminal code provides that during the state of siege all military persons are subject to the jurisdiction of courts martial. 2 The civil criminal code makes certain crimes, which are ordinarily punishable by life imprisonment, punishable by death if com- mitted in a district declared by the emperor to be in a state of war or which is the scene of action in a war against the German Empire. 3 These are all necessary consequences of the declaration of the state of siege. There are other consequences which may or may not result from the state of siege. The most important of these optional consequences of the declaration of the state of siege flow from the power given the military authorities to suspend certain 1 Law of June 4, 1851 (G. S. 1851, p. 451). 2 Milit. Str. G. O. Dec. i, 1898 (R. G. Bl. 1898, p. 1189), 27. 8 Einf. G. to the Str. G. B. 1870, 4. THE POLICE POWER 239 of the constitutional guarantees in such places and for such times as they may deem advisable. The guaran- tees which are subject to suspension during the state of siege are those contained in Arts. 5, 6, 7, 27, 28, 29, 30 and 36 of the Prussian constitution. They relate to the immunity of ^the person, of the dwelling house and of correspondence, to trial before the ordinary courts of law, to the liberty of speech and of the press, of asso- ciation and of assembly, and to the limitations on the use of the military power. A similar enlargement of the executive power may, according to the provisions of the same law, be brought about without the declaration of the state of siege. In case of war or riots, if public safety is in imminent dan- ger, the ministry of state may order the suspension of the above enumerated articles of the constitution, with the exception of Art. 7, guaranteeing trial before the ordinary courts of law. The ministry of state must, in case any of the constitutional guarantees are so sus- pended, account to the legislature immediately for such action. The state of siege or the strengthening of the execu- tive power without declaration of a state of siege con- tinue for the time specified in the declaration, or, if for an indefinite time, until the termination has been officially announced in the same manner as was the commencement of the exceptional state. 240 PRINCIPLES OF PRUSSIAN ADMINISTRATION Safeguards for the Individuals in the State The safety, health and welfare of the individual members of society are secured by a great number of enactments, some legislative, state and federal, some administrative, but all intrusted for their application to the police authorities. Many of the prohibitions calculated to protect the public are contained in the imperial code. Other measures are contained in the various special codes of the Empire, others in the acts of the Prussian legislature and a great many in the ordinances passed by the police authorities in the lawful exercise of their ordinance power. The general jurisdiction of the police in Prussia to maintain public quiet, safety and order and to repulse dangers gives to the administration a large measure of power. In the maintenance of public safety, the police may demand of any individual the necessary assistance, and failure to render such assistance in cases where no appreciable danger to the individual existed, is punish- able as a misdemeanor. 1 As part of the care for the public safety, the police authorities must take measures for preventing the occurrence of fires and provide necessary means for combating them. Preventive measures are found partly in provisions of the criminal code, making certain kinds 1 Str. G. B. 360 (10). THE POLICE POWER 241 of negligent acts with fire punishable. 1 Other measures are contained in the local police ordinances, varying in the different localities, and especially building regula- tions, which will be considered later on, contain pro- visions intended to lessen the danger from fire. The duty to provide adequate means for extinguishing fires is part of the local police duty of the communes. 2 This includes the furnishing of a water-supply, of engines, of firemen, etc. The personnel for the extinguishing of fires may be either professionally or voluntarily organ- ized, but it may also be imposed as a duty on every member of a commune to assist in the extinguishing of fires. 3 So house owners may be compelled to provide fire-extinguishers, even if the building is not one for public use. Protective measures against floods are also within the scope of police activity for the security of the public. Here the police has no general authority to compel individuals to act in the building of dikes, etc., on their property, except the usual power to require aid in case of emergency. Indeed, the laws forbid acts affecting the earth's surface in flood districts without permis- sion. A law of 1848 concerning dikes and diking 4 gives the district authorities the right to act in regard 1 Ibid. 2 Law of March n, 1850, 3. 3 Law of Dec. 21, 1904 (G. S. 1904, p. 291). 4 Law of Jan. 28, 1848 (G. S. 1848, p. 54). 242 PRINCIPLES OF PRUSSIAN ADMINISTRATION to the maintenance of natural drainage or artificial dikes in flood districts. If no individual has a legal duty to build or maintain a dike, deemed necessary by the district authorities, they may take steps toward forming a dike union (Deichverband). These are public corporations for special purposes organized by royal order and consisting of all the owners of realty in the flood district. All such owners are compelled to join and pay their contributions, even though all may be opposed to the formation of such a corporation, but each one is entitled to be heard before action is taken. The royal order in each case determines the purpose of the union, the extent of the duties and the limitations of property imposed on the owners, supervisory rights of the state authorities, the organization and duties of the union ofiicers, and the rights of the members of the union to a voice in the management of the same. The union ofiicers have the coercive power to enforce their determinations and may acquire necessary land and materials by expropriation proceedings. The deter- mination of whether a given piece of property is to be subjected to the burden of contributing to the diking works is finally determined by the administrative authorities without recourse to the courts. Turning from the consideration of police measures against natural dangers, we come to the police activity intended to protect the public from dangers caused by THE POLICE POWER 243 the activities of human agencies. Here the police derives its general power again from the police juris- diction defined in the General Code of 1794 and from special acts dealing with particular branches of police control. Not only must the police prevent all acts made criminal by the imperial code, but it must pre- vent acts which, though in themselves not reprehen- sible nor yet made punishable by law, constitute a danger to other members of society. 1 The police may, therefore, forbid any exercise of the individual's liberty of action which disturbs public order or is dangerous to others. Conversely, it may command the fulfilment of legal duties whose omission involves danger to others. To the extent that condi- tions inimical to quiet, safety and order exist, therefore, the police may interfere with individual liberty and property. Only the one responsible for conditions destructive of public quiet, order and safety may be obliged to remedy them. Generally there will be an active agent who is responsible. Whoever was the legal cause of the dangerous condition is responsible for its removal, no matter whether he was consciously at fault or not. Furthermore, the owner of the property on which or through which the danger arises is responsible for its removal, whether or not he be otherwise the causal 1 See Fleiner, 23. 244 PRINCIPLES OF PRUSSIAN ADMINISTRATION agency. The relation of property ownership carries with it the absolute duty to maintain it in a condition free from danger to the public. Finally, in those cases where neither legal causal agent nor owner can be reached, it becomes the duty of the commune to attend to the removal of the danger- ous conditions. Third persons are therefore under no obligation to act in the removal of dangers to the public, except in the cases of emergency mentioned above. Among the measures calculated to preserve public quiet, order and morals are the following : 1 The police issues orders for the observance of the Sabbath and holidays, exercises special surveillance over inns and taverns, not only through its licensing power, but also through its right to compel the closing at certain hours and to forbid sale of intoxicants to drunkards and minors. The imperial criminal code forbids blas- phemy and gambling in the interests of public order, punishes acts violating public decency and subjects prostitution to extensive police control in the interests of decency and health. In general, any undue dis- turbance of public quiet and order may be prohibited by police measures. An important branch of the protective action in the interests of the public deals with the preservation of the public health. By Art. 4, 15, of the imperial 1 See Hue de Grais, p. 369 ff. THE POLICE POWER 245 constitution, the whole subject of medical and veteri- nary activity was constituted a part of the supervisory and legislative jurisdiction of the Empire. In the exer- cise of this jurisdiction, the Empire has passed several regulative laws. The Empire has not, however, assumed exclusive jurisdiction over the subject, and the state has also exercised its remaining jurisdiction in laws supplementing the imperial regulations. The police measures in the interest of public health are found also in the building regulations to be considered below. 1 Regulations as to infectious and contagious diseases are contained in an imperial law of 1900 2 and in a Prussian law of iQO5. 3 The imperial law imposes a duty of notification to the local police authority of every case of leprosy, cholera morbus, typhoid, yellow fever, plague or smallpox and of any suspicious cases of these diseases. The same duty of notification exists in case of deaths by any of the above-mentioned dis- eases. This duty rests primarily on the physician in the case, but also, if there is no physician, on the head of the house, on every person engaged in the treatment or care of the patient, on the proprietor of the house where the case or the death occurred, and on the coro- ner, in the order named, when there are no persons of the kind previously enumerated in the list. When the 1 See later, p. 255 ff. 2 Law of June 30, 1900 (R. G. Bl. 1900, p. 306). 8 Law of Aug. 28, 1905 (G. S. 1905, p. 373). 246 PRINCIPLES OF PRUSSIAN ADMINISTRATION cases or deaths occur in public institutions, the head of the institution is alone charged with the duty of notifying the police. Additional requirements of state enactments as to notice are expressly reserved in the law. Upon notification, the police must inform the com- petent health officer, who is then obliged to institute an examination and report to the police, who are au- thorized to order the investigation of every case. The health officer has all requisite authority to carry out an adequate examination of the patient or of the de- ceased, and if he reports the existence of any of the named diseases, the police must immediately institute the necessary protective measures. In emergency cases, the health officer himself is authorized to act for the prevention of the spread of the disease. The protective measures include isolation and super- vision. Observation of persons suspected of being affected with or capable of communicating such dis- eases may be ordered. Quarantine of persons coming from infected districts is also permitted. Isolation may be in the home of the patient or, when necessary, in a hospital, and signs may be required for houses in which diseased persons are living. jThe higher police authorities are authorized to issue special orders for districts infected with or threatened by such diseases. These may consist in a surveillance THE POLICE POWER 247 of manufactured goods calculated to spread the dis- ease, in a limitation or prohibition on public markets, fairs or other undertakings attended with a gathering of large crowds, and in supervision over persons and goods engaged in the business of transportation. Children coming from infected homes may be ex- cluded from schools, the use of public wells and other waters in infected localities may be forbidden, inmates of infected houses may be obliged to move into other quarters provided by the authorities. Goods and rooms may be subjected to disinfection or, if necessary, destroyed. For the prevention of the plague, orders may be issued for the destruction of rats, mice and other vermin. Special measures for the disposition of bodies of persons who have died of one of the enumerated diseases may be required. The adoption of rules for the prevention of infection from other countries is left to the Bundesrat. In cer- tain cases, a compensation is provided for to be paid persons pecuniarily damaged by the police measures for public health, provided they themselves have acted without fault. State supervision is required over all arrangements for the furnishing of a public water supply and for the proper disposal of sewage and refuse, and it is made the duty of the communes to see that sanitary condi- tions exist in those regards. 248 PRINCIPLES OF PRUSSIAN ADMINISTRATION The imperial law leaves the detailed administration of measures for the prevention of the spread of con- tagious diseases to the legislation of each state, but provides penalties for the violation of the health meas- ures established or sanctioned by the law. In Prussia, the further regulation occurred by law of August 28, 1905. This law enlarges the list of diseases which must be notified to the police authorities and extends the provisions of the imperial law as to investigation of reported cases. The protective measures are specially regulated as to supervision, examination, isolation and disinfection for each of the enumerated diseases. In certain cases, compulsory treatment may be ordered. The local police authorities are made the general organs for carrying out the state and imperial health regulations, so far as not otherwise provided. The determination of the compensation to be paid in case of injury or destruction of property by disinfection is regulated in detail in the law, as well as the manner of meeting the expenses of the investigation and protec- tive measures, which latter are also public charges. Along similar lines to those followed in the protection against contagious diseases in general is the imperial compulsory vaccination law of 1874.* By the provi- sions of this law, every child must be vaccinated within 1 Law of April 8, 1874 (R. G. Bl. 1874, p. 31), supplemented by minis- terial regulations (M. M. Bl. p. 448). THE POLICE POWER 249 less than two years after birth and every pupil in public and private schools, in his twelfth year, unless the child has had the smallpox within five years previously. Vaccination may be postponed beyond the legal period if the health of the child demands. Unsuccessful vaccination must be repeated within a year, and, if still unsuccessful, again within another year. Official doctors are provided for to perform the vaccination. The physician must give certificates of vaccination, which the parents or guardians of the children must produce upon demand. The detailed regulation of the matter is left to the individual states, which may also retain in effect the provisions as to compulsory vaccination in time of epidemics. For the protection of the public against danger to health through food and other articles of daily use, the empire has passed two laws, one in 1879 and one in 1900. The first of these laws 1 deals with the trade in articles of consumption and of daily use and com- prises also trade in toys, wall paper, colors, crockery and petroleum. The law gives police authorities a minimum jurisdiction, leaving the states free to enlarge the powers of the police with respect to such trade. The police is given the right to enter any place of business where the enumerated articles are being sold and to take away with them samples for investigation. Such 1 Law of May 14, 1879 (R. G. Bl. p. 145). 250 PRINCIPLES OF PRUSSIAN ADMINISTRATION articles must, however, be paid for at the customary rates. - ; The emperor is authorized, by and with the advice of the Bundesrat, to issue regulations forbidding certain ways of preparing, preserving and packing articles of consumption intended for sale or offering for sale of articles of a particular kind, the sale of diseased ani- mals or the meat of such animals, the use of certain materials in the manufacture of articles of clothing, toys, wall paper and crockery, and the sale of petro- leum of a given quality. Furthermore, by imperial ordinance, approved by the federal council, the busi- ness of producing, selling or offering for sale of goods intended for the adulteration of food or other articles of consumption may be forbidden. These ordinances must, however, in every case be submitted to the par- liament, which is given the power to annul as far as may be required. Decrees in execution of this law were issued in 1883 and in ipc^. 1 A special law concerning the inspection of cattle intended for slaughtering and of their meat was passed by the Empire in igoo. 2 This law requires an official inspection of all cattle, hogs, sheep, goats, horses and dogs intended for consumption, both before and after slaughtering. The state authorities may require an 1 Order of Sept. 14, 1883 (M. Bl. 1883, p. 236) ; Order of Sept. 20, 1905 (M. Bl. 1905, p. 193). 2 Law of June 3, 1900. THE POLICE POWER 251 examination of all animals destined to slaughter in times and districts where epidemics are raging among the live stock. The state authorities are commissioned to determine inspection districts with a technically trained inspector for each. He must give his approval to the slaughtering of every animal after inspection had. If he finds on examination that the meat is unfit for human use, he must appropriate it and notify the police authori- ties, who may permit the meat to be otherwise used in a way not dangerous to persons. If it cannot be so used, the police authorities must dispose of it. Meat cannot be put on the market until it has the approval of the inspector. Meat which is only conditionally fit for human consumption may be sold only after such measures have been taken with regard to it as the police authorities may order, and under declaration of the fact that it was only conditionally fit. Special regulations exist for meat coming from foreign countries, and the importation of canned meat is forbidden en- tirely. The trade in horse meat is subject to special requirements as to notice, etc., and the examination of the meat must be by approved veterinary doctors. The detailed administration of this law also is left to the regulation of the states. 1 Finally, an imperial law for the prevention of con- 1 For list of Prussian laws, ordinances and orders in execution of this law, see Stier-Somlo, "Verwaltungsgesetze," p. 1479, note i. 2$2 PRINCIPLES OF PRUSSIAN ADMINISTRATION tagious diseases of cattle and live stock was passed in iQog. 1 This law, like the other imperial health laws, does not regulate the subject exclusively, but merely makes general provisions in the nature of minimum re- quirements, leaving not only the execution of those requirements to the single states, but also the passing of further safety measures. To prevent the introduc- tion of contagious cattle diseases from foreign countries, the importation of live stock and of meat may be for- bidden. As regards such diseases in the interior, an obligation of notification to the police authorities is imposed for a list of twelve contagious diseases. This is followed by an official inspection and by preventive measures. Against the continual danger to live stock from contagious diseases, various measures are authorized by the law. These include inspection of live stock in transportation, prohibition or limitation on the freedom of driving cattle on public ways, certificates of health for all cattle brought to public markets, branding of cattle, regulation of dairies, etc. In cases of special danger from contagious diseases, more acute protective measures are permitted by the law, and for each kind of disease particular regulations have been passed. The law also provides for compensation for animals killed in execution of the provisions of the law. The determination of who is to pay the compensation and 1 Law of June 26, 1909 (R. G. Bl. 1909, p. 519). THE POLICE POWER 253 to whom it is due is left to the measures of the indi- vidual states, but a certain minimum compensation by the state is established in the law. As in all the other imperial health laws, violations of the requirements of the law are subject to penalties by fines and imprisonment. Special regulations exist for the protection of public health as regards the disposition of corpses. Trans- portation of bodies requires a permit from the circle authorities. Burial can only be in the public cemeteries, which, though still as a rule the property of church societies, cannot be closed to members of other re- ligious societies not possessing a cemetery. New cemeteries cannot be opened without police approval, and those no longer in use cannot be used for other purposes until after the expiration of forty years. 1 Since 1911 cremation is permitted in Prussia, but under very strict limitations. 2 The sanitary police is also charged with the duty of keeping public streets and places in a sanitary condition by forbidding the throw- ing of objectionable materials therein, and by providing for the proper cleansing of the same. Finally, the trade in poisons is subject to special limitations as regards police permits, trade in peddling, etc., for the protection of the public. For the special problems of public health in the 1 See Hue de Grais, 256. 2 Law of Sept. 14, 1911 (G. S. 1911, p. 193). 254 PRINCIPLES OF PRUSSIAN ADMINISTRATION various relations above considered, special authorities in addition to the regular police organization were re- quired. The Empire indeed in the exercise of its juris- diction over public health employs the regular adminis- trative police of the single states. But for purposes of supervision and control, special imperial authorities were constituted and additional state administrative offices created. So the law of 1900 constituted an imperial sanitary council in connection with the im- perial health office, the members to be elected by the Bundesrat. This council assists the imperial health office in the exercise of its functions and may impart desired information to the state authorities. It has furthermore the right to require reports and to send inspectors who are to be aided in their investigations by the state authorities. 1 As state authorities, there are in Prussia, besides the regular police under special departments of the minis- tries, technical assistants. Not only the minister, but also the district president as regular province health authority are provided with medical advisers. There are in addition state advisory medical and pharma- ceutical boards, and in each province the medical com- missions. As assistants for the local police authorities in health matters, official health officers are appointed who must pass a special examination and who receive a 1 Law of June 30, 1900, 43. THE POLICE POWER 255 salary and pension. These officers are the active agents for the preservation of the public health and have inde- pendent powers of action in case of emergency. Be- sides these public physicians, there is provided a sani- tary commission for each commune of more than five thousand inhabitants. 1 For the purposes of protection against infection by live stock, public veterinarians are provided for in a similar capacity. In order to employ the title doctor or physician or similar designations, an individual must be approved by the minister of education on the ground of an ex- amination. 2 This applies to all kinds of physicians, to midwives and apothecaries, and is a prerequisite also to appointment in any official capacity in the state. But the practice of the medical profession, if not carried on under the designated titles, is free to all. A specialized branch of administration in Prussia is the regulation of building, which, though limited pri- marily with a view to the protection of public health and safety, is influenced by other considerations as well. 3 The provisions of the imperial civil code which are calculated to protect adjoining owners in their private rights do not come within the concept of police build- ing regulations, since they do not raise any public obligations on the part of the builder. 1 Hue de Grais, 253. 2 G. O. 29. 8 Georg Meyer, 61 ; Hue de Grais, 262-269. 256 PRINCIPLES OF PRUSSIAN ADMINISTRATION The building laws are not codified in Prussia as they are in some of the other German states, but are con- tained in a variety of laws. Most of the building regu- lations are local and are to be found in the police ordi- nances of the subordinate authorities. A detailed list of references is therefore not possible, but the general lines followed by these police authorities are so similar that one can present typical regulations. The Prussian General Code, 1794, laid down certain general principles; 1 other laws in 1875 regulated par- ticular features of the building activity, and many ministerial orders contain special requirements ; but for the most part the provisions as to buildings are enacted by each local police authority for its territory. The law of 1883 concerning the jurisdiction of the adminis- trative authorities 2 designates the supervisory functions of the district and circle committees with respect to building regulations. The building regulations contained in the local police ordinances whether for communes, circles, districts or provinces regularly require a police permit or license before building can be begun. The General Code had indeed declared the building right to be a free right, subject only to limitation by law, but as a result of the later police legislation, the rule in all of Prussia requires a building permit. Important repairs or altera- 1 A. L. R., I, 8, 65 ff. 2 Zust. Ges. 1883, 143-146. THE POLICE POWER 257 tions are subject to the same requirement. Of course, a building permit, if granted, does not operate against third persons to deprive them of any private rights which would be violated by the buildings as permitted. The permit merely makes that lawful as regards the public authorities which would otherwise be unlawful. One who builds without the required permission is liable to punishment ; and if his building violates any building provisions, he may be compelled to alter it, or even to tear it down again if no other measure will remedy the unlawful features. Indeed, buildings which have been put up in accordance with all the require- ments of the law may become unlawful as a result of subsequent building regulations and their alteration be required. The petition for a building permit must be handed in to the local police authority accompanied by plans and specifications. These are examined with reference to security of the building, protection against fire, sani- tary conditions and aesthetic requirements. The pro- posed building must be of strong enough construction to be safe against collapse, it must have fireproof roofs, the proper installation of stoves and chimneys, adequate stairways and exits in case of buildings used by the public, etc. Sanitary considerations demand a certain minimum of light and air for the rooms, limit the height of buildings with reference to the width of the street, 258 PRINCIPLES OF PRUSSIAN ADMINISTRATION require sanitary plumbing, etc. Since 1907, the local administrative organs are given a wide measure of discretion in refusing permits for buildings or other erections which are objectionable to the sight. 1 The relation of buildings to public streets, squares and parks is regulated by law of 1875, which likewise leaves the local authorities wide discretion in the adoption of regulations not falling under the general police powers. 2 In cities, an inspection of the building is generally re- quired several times during the course of construction. For the administration of building control, the regu- lar police authorities are aided by a corps of technical assistants. 3 Directly under the minister of public works are the examining boards and the building acad- emy for the development of that branch of science. The district president, as province authority, is aided by technical councillors, and in the circles also special building officers are provided for. These officials must complete a four years' technical course, pass an exami- nation and serve two years in some position of practical experience. After passing a second examination, they are commissioned as public officers. The state officials must not only act as supervising and controlling organs, but must direct the erection of state buildings. *Law of July 15, 1907 (G. S. 1907, p. 260). - Law of July 2, 1875 (G. S. 1875, P- 561). 8 Hue de Grais, 263, 264. CHAPTER VIII POSITIVE MEASURES FOR THE FURTHERANCE OF THE MATERIAL AND MENTAL WELFARE OF THE INDI- VIDUALS IN THE STATE FROM among the various fields of positive action by the state for the benefit of its members, we shall choose for consideration only three, the administration of poor relief, the regulations for the benefit of the working classes, and the system of public education. Poor Relief Prior to the Reformation, the whole problem of poor relief was dealt with by the church. Later a certain amount of public activity was developed by the cities. Not until the nineteenth century, however, was the duty of caring for the paupers imposed by law on the local administrative bodies. In Prussia, the subject was comprehensively regulated by a law of 1842, later superseded by an imperial law of 1870, for which the Prussian law served as model. The actual state of the law to-day is declared in the act of 1870 as reenacted in 1 Law of May 30, 1908 (R. G. B. p. 381). 259 260 PRINCIPLES OF PRUSSIAN ADMINISTRATION This law provides that the public relief of pauper Germans is to be administered by poor relief unions, comprising local unions (Ortsarmenverbande) and larger unions (Landarmenverbande). Local poor relief unions may be composed of one or more communes, of one or more manorial precincts, or of both communes and pre- cincts, and such a composite union is considered for the purposes of the law a unit. The support of indigent Germans, for whose care no local union is responsible, falls upon the larger unions, whose establishment is left to the individual states, but must in general com- prise the territory of more than one local union. Further- more, the imperial law leaves to state enactment the composition of the two kinds of unions, the form and extent of the public relief, the manner of raising the necessary funds, and the relations between the local and larger unions. But as regards the right to pursue their legal rights, local unions and larger unions must, accord- ing to the law, stand on an equal footing. In Prussia, the regulations in execution of the im- perial law were embodied in an act of March 8, 1871. 1 As a rule, the local poor relief unions are coextensive with the communes and manorial precincts, but in many cases joint unions have been formed, according to the provisions of Title iv of the rural commune act of 1891, of several communes or precincts. The larger poor 1 G. S. 1871, p. 130. POOR RELIEF 261 relief unions are, in general, coextensive with the province corporations, but in Hessen-Nassau with the district and in East Prussia with the circle corporations. Berlin and Breslau each constitute poor relief unions for themselves. The maintenance of asylums for in- digent, insane and idiots, for the deaf and dumb and for the_blind, as well as of poorhouses and houses of correc- tion is the duty of the larger unions. The costs of sup- port in such institutions is borne in part by the local union of domicile and in part, at least two-thirds, by the circle corporations. The duty of the poor relief union to furnish support to a pauper is a legal obligation toward the state, but not the basis of a legal claim for the pauper. The manner and extent of granting relief is regulated by the by-laws of the poor relief unions, subject to approval by the district committee. 1 1 Zust. G. 1883, Title IV, 40 ff. The required support includes shelter, nourishment and treatment in case of sickness (Law of March 8, 1871, i). The receipt of such support disqualifies for certain public rights. Not so, however, care for the sick, treatment in public institu- tions for infirmities, provision for the young, or assistance rendered to relieve temporary emergencies. Law of March 15, 1909 (R. G. Bl. 1909, P- 3i9)- The so-called Elberfelder'system of poor relief in the larger cities divides the city into poor relief districts. At the head of each is an honorary director, all the directors being directly under the municipal poor relief deputation. Each district is subdivided into quarters in which a warden is appointed for each two or three families. These wardens personally examine all requests for support and in case of small amounts may 262 PRINCIPLES OF PRUSSIAN ADMINISTRATION Paupers are given a right of protest to the circle committee, or, if a city of more than one thousand in- habitants belongs to the poor relief union, then to the district committee, against orders of the local poor relief unions concerning the extent and manner of the relief to be granted. Similarly, against such decrees of the larger unions, when consisting of a single circle, protest may be made to the district committee. The larger unions are obliged to render assistance to the local unions in certain cases, and the local unions may protest to the province council against decrees of the larger unions as to such assistance. Controversies between poor relief unions as to the duty of relief in a given case are settled in the last instance, after consid- eration by the administrative courts of the state, by the imperial home office, according to 52 of the im- perial law of May 30, igoS. 1 An individual may acquire a domicile for support (Unterstiitzungswohnsitz) through either residence, mar- riage or parentage. Whoever, after the completion of the sixteenth year, voluntarily resides uninterruptedly within a local poor relief union for a year acquires therein a domicile for support. Married women share the domi- cile for support of their husbands, unless the husband concede the sums independently. In case of larger amounts, the assembly of wardens in the district must act on the requests. Hue de Grais, p. 414, note 3. * See later, p. 265. POOR RELIEF 263 has maliciously deserted the wife, or unless she has obtained a decree of separation and is self-supporting. Legitimate children share the domicile for support of their father until they lose it by voluntary absence of a year after they have reached the age of sixteen years. In case of the death of the father, the children share the domicile of the mother. Illegitimate children share the domicile of the mother. Every indigent German must be provisionally cared for by the local poor relief union in which he happens to be when the need for public support arises, whether or not he has his domicile of support within the union. Such support is, however, rendered without prejudice to the claim to reimbursement by that union which is le- gally bound to render support in the given case. The liability for costs arising from the relief of a pauper falls as a general rule upon the local union in which the pau- per has his legal domicile for support. If he has no such domicile, it falls upon the larger union in which he hap- pened to be at the time of coming into need. If an in- mate of a hospital or penal institution is released in an indigent state and has no domicile for support, then the larger union from which he was taken to the institution is liable for the costs of his support. If a local union is called upon to render support to a pauper whose domicile for support is elsewhere, it may make all inquiries of the pauper as to his home and 264 PRINCIPLES OF PRUSSIAN ADMINISTRATION family and must within six months submit a claim for costs to the union which is under obligation to meet such expenses. If a recognition of the obligation does not follow within two weeks, it is to be considered as denied, and the union is entitled to pursue its legal remedies according to the provisions of the law itself. So far as controversies that arise are between poor relief unions of the same state, the laws of the indi- vidual states are to determine the manner of their settle- ment. So far as such controversies arise between poor relief unions of different states, they are regulated in the imperial law itself. The Prussian law of 1883, concerning the jurisdiction of the administrative authorities, 1 determined the man- ner of deciding controversies between different poor relief unions in Prussia. They are to be determined by complaint before the administrative courts, the district committee being the court of first instance. The circle committees act as judges in such controversies between poor relief unions as are submitted to arbitration under the law of March 8, 1871. With respect to contro- versies between poor relief unions of different states, the imperial law provides that a poor relief union which is obliged to render provisional relief to a pauper not having a domicile for support within that union may, in case the union which is legally bound to bear the ulti- 1 Zust. G., Aug. i, 1883. POOR RELIEF 265 mate costs denies its obligation, protest to the adminis- trative superior of the second union. The authorities called upon for decision have full power of collecting evidence and compelling attendance of sworn witnesses and experts. The decision must be in writing and contain the grounds of the determination. From the decisions of the highest state authority in the above cases, appeal may be had to the imperial home office (Bundesamt fur Heimatwesen) . This is a permanent collegial body meeting in Berlin, composed of a chairman and at least four members appointed for life by the king of Prussia upon nomination of the Bundesrat. The chairman and at least half of the members of the imperial home office must be qualified for the higher judicial service in their native state. The procedure before the imperial office is minutely regulated by the law, and a written decision with reasons for the same is here also required. These decisions are final and con- clusive. The execution of the judgment is matter for the administrative authority first appealed to. A poor relief union which is legally bound to support a pauper who is receiving provisional relief from another union may on the basis of an agreement with the sec- ond union provide for his permanent support therein. Furthermore in certain cases the higher administrative authorities may provide for the further support by the 266 PRINCIPLES OF PRUSSIAN ADMINISTRATION union in which the pauper happens to be. Otherwise the union rendering the provisional relief may insist on the return of the pauper to the union in which he has his domicile for support. The costs of transportation must be borne by the union of domicile. In case a poor relief union is financially unable to meet its legal obliga- tions, the state itself must provide for their payment. Foreigners must be provisionally supported by the local poor relief union in which they happen to be at the time of coming into need, and the costs must be met by the state or such of its poor relief unions as it designates. The provisions of the imperial law have reference only to the duty of support which exists for the public poor relief unions and do not therefore affect the obligations of support resting on other relations such as member- ship in a family, cooperative or mutual society, etc. A poor relief union which has rendered a pauper support as required by law is entitled to enforce in his place any claims to support which may arise out of the existence of such private relations. In the examination of the situation and relations of a pauper, the police and other administrative authorities are bound to assist the poor relief unions in such ways as may be requested. Aside from the system of public poor relief as pro- vided for by law, there is a large amount of private activity for charitable purposes which supplements the PUBLIC INSTRUCTION 267 public activity by looking also to the prevention of conditions leading to pauperism. To a certain extent this private activity is subject to special state control, particularly as regards dealings with children; but it constitutes no part of the administrative treatment of pauperism and does not therefore fall within the scope of the present treatment. Public Instruction Primary Education In the Middle Ages, education so far as it was pro- vided for at all was not a function of state activity, but of private endeavor, namely, that of the church. The Reformation in Germany first developed the doctrine that it is the duty of the state to provide for the educa- tion of its citizens. In Prussia, as early as 1717, com- pulsory education was introduced, and under Frederick the Great a general measure concerning public schools was passed in 1763. The Prussian General Code of 1794 then dealt with the subject and reaffirmed the principle that education is a function of the state. In Title 12, Part II, the Code contained regulations concern- ing primary and secondary schools and universities. Though education was recognized as a function of the state, private instruction was not forbidden, but sub- jected to state supervision. 268 PRINCIPLES OF PRUSSIAN ADMINISTRATION The schools were maintained, not by the state or its administrative subdivisions, but by public societies composed of the adults in school districts. The manage- ment of the schools, however, was a purely state matter. Early in the nineteenth century, a very extensive power of control was given to the district governments, 1 a power which still remains in large part to-day. The constitution in 1850 contained general principles as to education. 2 According to Art. 26, there was to be passed a special law regulating the whole subject of education. This law has, however, never been passed ; and in 1906 an amendment to the constitution permitted the regu- lation by special laws and confirmed the existing enact- ments concerning public education. The effect of this 1 Regierungsinstruktion, 1817, 18. 2 It declared the duty of the state to care adequately for the education of the youth in public schools, and the duty of parents to see that their children received the instruction prescribed for the public schools. The right of everyone to impart instruction and to found and conduct schools was guaranteed provided he demonstrated his moral and mental qualifi- cations therefor to the public authorities. All schools and educational institutions, public and private, were declared to be under the supervision of state authorities, and public school-teachers were given the status of state officers. Religious instruction was to be left to the direction of the religious societies. The conduct of the external affairs of the primary schools was made matter of the communes, who were to have a voice in the appointment of teachers by the state. The cost of maintenance was to be borne by the communes, with state help when required, and instruc- tion in the primary schools was to be free. PUBLIC INSTRUCTION 269 amendment was to suspend the provisions of the con- stitution as to public education until the passage of a general educational code, but the principles expressed in Arts. 21-25 are m general those at the basis of the law to-day. This is contained in a number of separate enactments, including some provisions of the General Code of 1794, many of the provisions in the instruction of 1817 as to the jurisdiction of the district governments in school matters, and certain sections of the law of August i, 1883. Finally, in 1906, a comprehensive law further regulated the subject of primary schools, 1 sup- plemented by two laws in 1907^ and one in 1909^ con- cerning salary and pensions of public school teachers. The erection and maintenance of primary schools is made the duty of the communes and manorial precincts. They either constitute school unions (Schulverbande) for themselves or are members of composite school unions with other communes and precincts. Cities, as a rule, constitute separate school unions. The consti- tution, alteration and dissolution of composite unions, which are public corporations with the usual powers, are matters for the state supervising authority under limitations established by law. Tuition may be re- quired of non-resident children. The costs of the 1 Law of July 28, 1906 (G. S. 1906, p. 335). In force for all provinces save West Prussia and Posen. 2 Laws of June 10, 1907 (G. S. 1907, pp. 133-137). 3 Law of May 26, 1909 (G. S. 1909, p. 93). 270 PRINCIPLES OF PRUSSIAN ADMINISTRATION primary schools are raised in the communes by local tax; in the manorial precincts they are borne by the precinct director. The costs, in case of composite school unions, are borne by the various members partly in relation to the number of children sent to the school, partly in relation to the taxes in the communes. Each school union is to have a budget and a treasury. Each union is obliged to collect a certain annual amount for building purposes. For smaller unions a subsidy for building purposes is granted by the state, and in case of financial inability to raise the necessary school funds, these unions may be granted state aid. As a general rule, the primary schools are, when possible, to be so organized that Catholic children are taught by Catholic teachers and Protestant children by Protestant teachers. The same is true for Jewish children. As regards the management of the public primary schools, the provisions are different for city communes and for rural communes. In cities, the preparation of the school budget, the voting of school funds, the manage- ment of the same, and the appointment of officers is left to the regular organs of city administration. For all other matters, a school deputation is provided for as organ of the city executive and as organ of the state supervising authorities. This deputation consists of members of the executive committee, of councilmen, of educators and of local pastors. The members of the PUBLIC INSTRUCTION 271 executive committee who are to act on the school depu- tation are appointed by the mayor, who may himself become a member and preside as chairman. The councilmen are elected to the deputation by the council, and the experts are chosen by the first-mentioned two classes in the deputation. The election is for six years and there is a legal obligation to accept the office. Furthermore, special school commissions may, if desir- able, be constituted by the communes. In the case of rural communes constituting a school union for themselves, the regular organs of administra- tion are charged with the preparation of the budget and the voting and management of funds. In manorial precincts these functions are exercised by the director. In rural communes constituting separate school unions, a school committee is provided for, similar to the school deputation in cities for the management of all school matters except those mentioned above. For composite school unions, the director of the union and a school committee together manage the public school matters. This committee is composed of representatives from the members of the union. The union director is appointed by the supervising authority from among the members of the committee. He must care for the distribution of the sums each member is legally obliged to pay and must look after their collection. The teachers in primary schools are state officers, 272 PRINCIPLES OF PRUSSIAN ADMINISTRATION elected from among those qualified by the local organs. This organ is the commune executive committee in case the commune is a separate school union. The school deputation and school commissions are entitled to be heard as to the choice. In other school unions, the election is as a rule through the school committee. The election must be approved by the supervising au- thority, which also makes the appointment. Principals and head teachers must present special qualifications and are appointed by the supervising authority. As the provision in the constitution requiring parents to see that their children receive an education equivalent to that offered in the primary schools l has not been em- bodied in a general code, it is still suspended and the older provisions are in force, varying in the different prov- inces. These quite generally impose a duty of instruct- ing the children from the age of six to the age of twelve or fourteen years. The instruction need not be in the public schools, but must be equivalent to that there given, and cover the same subjects. These include, besides the usual elementary subjects, also religious instruction and gymnastics, according to the curriculum prescribed by the administrative authorities. 2 Primary schools are open to both boys and girls, but 1 Const, of Prussia, 1850, Art. 21. 2 There were in 1906 somewhat over six million children of the age for wnich compulsory education is prescribed and over 38,000 public primary schools with over 100,000 teachers. Hue de Grais, p. 456, n. 5. PUBLIC INSTRUCTION 273 in the upper classes the instruction is, when possible, to be in separate divisions. Private instruction is, therefore, not forbidden, but the liberal provision in the constitution allowing every- one who possesses the necessary qualifications to engage in the teaching profession is still suspended. The older provisions are therefore in force which limit the right to conduct schools by making it dependent on the need for such schools. The existence of the need is to be judged by the district governments, from which per- mission must be obtained for the conducting of such schools. Private teachers must obtain permission to teach from the supervising authority after proving their mental and moral qualifications. They are subject to supervision by those authorities. 1 Teachers of swim- ming, gymnastics or dancing are in a special position, inasmuch as by the provisions of the imperial industrial code, they may be refused permission to practise their profession only if facts appear which point to the un- reliability of the applicant. 2 The administrative hierarchy for educational matters is subject to the minister of education. For primary education, his agents are the church and school depart- ments of the district governments. 3 These in turn work through special supervising organs called school 1 O. of Feb. 4, 1908 (Z. Bl. V. V. 1908, p. 333). 2 G. O. 35. 3 Instr. Oct. 23, 1817, 18. T 274 PRINCIPLES OF PRUSSIAN ADMINISTRATION . inspectors. There are circle inspectors for territory including several school unions and local inspectors for single school unions. These school inspectors are purely state agents and subject to all orders of the higher authorities. The circle inspectors are usually special officers. But frequently the duties of inspector are im- posed on the church officers, and the local inspectors are regularly the pastors of the community. 1 The func- tions of circle director, of the circle committee and of the district committee in settling controversies arising out of the public obligations concerning primary schools are determined in the law of 1883 concerning the com- petence of administrative authorities. 2 Besides the education offered in the primary schools, which is the legal minimum required for all children, intermediate schools are provided for, which, though offering the same subjects as the primary schools, carry the instruction farther and offer the beginnings of busi- ness or industrial education. Similarly, there are the so-called continuing schools (Fortbildungsschulen) which prepare the graduates of the primary schools for prac- tical work in agriculture, business or industry. 3 1 A. L. R., II, 12, 12-17, 47 and 49. 2 Zust. Ges. 45-49. * Hue de Grais, p. 462. PUBLIC INSTRUCTION 275 Secondary Education Secondary education was organized first by church endeavor at the time of the Reformation, when the study of the ancient classics constituted the programme of all higher education. The so-called gymnasia, or classical secondary schools, were provided for as part of the scheme for state education in the General Code of 1794, and these classical schools remained the institu- tions for secondary education until the beginning of the nineteenth century. Scientific secondary schools then began to be developed and have continually grown in importance since then. To-day there are three typical kinds of secondary schools, all comprising nine years of study, beginning with the age of nine years. These institutions are the gymnasia, the scientific gymnasia (Realgymnasien) and scientific superior schools (Ober- realschulen). The former retain Greek and Latin as the major part of the curriculum. The second place greater emphasis on the sciences and on modern lan- guages, and the latter exclude the study of the classics entirely. There are in addition secondary schools of lower rank which offer only six years of secondary instruction. Only graduates of the regular gymnasia can enter all departments of the universities. Those of the scientific secondary schools are eligible to enter the departments 276 PRINCIPLES OF PRUSSIAN ADMINISTRATION of law and medicine and to study modern languages, mathematics and the sciences. State organs of supervision for the secondary schools are the province school commissions under the minister of education. These are the organs of active school administration and are assisted by the examining boards for the higher teaching positions. The province school committees are also supervising organs for the normal schools established for the training of teachers in the public schools. The teachers in the secondary schools are appointed as a rule by the province committee or the minister on the basis of an examination given by the examining board. The secondary schools have in the past been open only to boys, although more recently girls are being admitted on the same conditions. But for girls special schools have been provided, corresponding in general scope to the secondary schools for boys and supple- mented as are those by normal schools. In the field of secondary education, private under- takings are permitted under the same limitations as in the case of primary education. Higher Education The higher training for the professions is furnished in Germany in the so-called high schools (Hochschulen). These comprise universities and technical schools. PUBLIC INSTRUCTION 277 Universities were founded in Prussia early in the six- teenth century as public corporations with wide powers of self-government. The General Code of 1794 regards them as part of the general educational system of the state and calls them corporations with special privileges. The universities lost their autonomy, however, and were made dependent for their powers on charters issued by the administration. The general powers of a university are determined by this charter, but the execution of its provisions is left to faculty statutes. State supervision is exercised by an organ of the minister called the curator, who is responsible for the management of the finances. The internal regulation of university affairs occurs by vote of the full professors (Ordentliche Professoren) who annually elect the rector and the faculty deans and act through a permanent committee called the senate. Their jurisdiction includes all general undertakings of the university, the exercise of disciplinary powers over students, the arrangement of the curriculum, the con- ferring of degrees, nominations for appointments to full professorships, granting of permission to teach in the university without appointment, etc. The teaching force comprises various classes of instructors, varying as to title, rank and salary. They have the rights and duties of state officers, but cannot be transferred or retired on a pension against their will. 278 PRINCIPLES OF PRUSSIAN ADMINISTRATION Students are subject to the disciplinary powers of the senate, but are otherwise amenable to all provisions of the law. They may matriculate upon producing the required certificate of graduation from a secondary school. The ordinary course of study requires three years, for medical students four years, of work. Besides the universities, there are technical high schools for engineering, art, music, commerce, etc., which are organized along similar lines as are the uni- versities. For all these institutions, as for the univer- sities, the immediate superior instance is the minister of education, who exercises the state control through his curators. The appointment of full professors is made by the king himself, the full professors of the given university having a right of nomination. Care for the Working Classes State activity in the interests of the working classes expresses itself in Prussia in three different directions, all regulated by imperial legislation. The first of these is the guarantee of industrial freedom, the second are ' the provisions for organizations of the laboring classes, / and the third are the provisions protecting the life and health of laborers and assuring them support in case of accident or sickness. Liberty of trade was not introduced in Prussia until LABOR REGULATION 279 early in the nineteenth century. In the Middle Ages trades were restricted to the cities and absolutely con- trolled by the trade gilds, autonomous corporations with complete monopoly powers. In the eighteenth century absolutism these corporations lost their autonomy and became public corporations of the state, which itself assumed the monopoly of granting trade rights. For the individual workman, however, the situation was very little different from that in the Middle Ages, for he could not engage in any trade without permission. The acts of 1810 and 1811 relating to trade taxes and police control l established liberty of trade in Prussia by abolishing the monopoly principle and depriving the gilds of their governmental powers. Trades were open to all, except when permission was specifically required by law. This liberal legislation was extended in Prussia to all parts of the state in 1845. 2 This act regulated the whole subject of trade and industry and, though not quite so liberal as the earlier enactments, still rested fundamentally on the principle of liberty of trade. The North German Federation abolished the gild restrictions for the whole of Germany in 1868 and in 1869 adopted the industrial code, which, with its subse- quent alterations, embodies the law in force to-day. 3 1 Edict of Nov. 2, 1810 (G. S. 1810, p. 79) ; Ed. of Sept. 7, 1811 (G. S. 1811, p. 253). 2 Act of Jan. 17, 1845 (G- S. 1845, p. 41). 3 Gewerbeordnung, June 21, 1869. 280 PRINCIPLES OF PRUSSIAN ADMINISTRATION This code was framed on the basis of the Prussian law of 1845 an d announced liberty of trade as the general principle. But a change in the economic and political theories that had developed meanwhile in Germany led to an increase in the number of exceptions for which permission was required and to an expansion of the police powers respecting trades and industry. The imperial industrial code deals with all economic activities except the production of raw materials and the practice of the higher professions. It is an exclusive law as regards limitations on the right to begin a trade or other industrial activity and as regards the power of ordering a discontinuance of the same. That is to say, industrial activity may be freely entered upon by any individual except so far as limitations are imposed or per- mitted by the imperial law itself. 1 So also as regards the right to continue in an industrial undertaking or a trade, that may not be denied by either administrative or judi- cial action, except as permitted by provisions of the im- perial code. 2 State action is therefore excluded in both these regards. But limitations and regulations concern- ing the manner of engaging in trades and industrial pursuits are not exclusively reserved to the empire, but may be imposed by the states as well. The various restrictions placed on the general liberty of trade in the industrial code and those imposed by 1 G. O. i. 2 ibid. 143. LABOR REGULATION 281 the states within the jurisdiction left them by the code are police measures intended for the protection of the public, and do not fall under the subject of this chapter. But the industrial code contains other provisions besides those establishing trade liberty, which are of great importance to the workingmen. These are the sections of Title vi of the imperial code regarding workmen's organizations, and those of Title vii regarding laborers and their protection in their occupations. Title vi of the imperial code treats of gilds (Innun- gen) and tradesmen's chambers (Handwerkskammern) . Gilds, as has been seen, were not wholly abolished, either in the absolute state nor with the changes to the constitutional state. In the former, they lost their autonomy ; in the latter, their governmental powers, and continued for thirty years as mere private societies. It soon appeared, however, that they were powerless in that form to protect the interests of the workingmen and consequently larger powers were given them by later legislation, which clothed them with the character of public corporations and with powers of self-adminis- tration, subject to state supervision. These regulations were revised and embodied in their present form in the imperial code by law of July 26, 1897. Gilds may be formed by individuals who pursue in- dustrial callings, the purposes of the gild being to culti- 282 PRINCIPLES OF PRUSSIAN ADMINISTRATION vate the feeling of solidarity among its members and good relations between masters and assistants, to care for lodging houses and employment bureaus, to regulate in detail the relations of apprentices and provide for their mental, technical and moral training, and to settle certain classes of controversies between members of a gild and their apprentices. Other undertakings of com- mon benefit may be entered upon by the gilds, such as the establishment of sick relief treasuries, of technical schools, the requiring of examinations for masters and assistants, providing arbitration courts for disputes between members and their assistants, etc. Gilds shall as a rule not cover more territory than the higher administrative division. The purpose of the gild, the form of its government and the rights of its members are to be regulated in the statute or charter, which must determine the name, location and extent of the gild, the kinds of industrial pursuits included therein, the admission, resignation and exclusion of members, the rights and duties of members and the manner of col- lecting dues, the constitution of the executive committee, the nature and powers of the general assembly, etc. The charter must be approved by the higher adminis- trative authority of the district in which the gild is located and can be refused only if the charter is wanting in some particular prescribed by law or if in the same territory a gild already exists for the same industries. LABOR REGULATION 283 The gilds are corporations with limited liability. Their active membership can include only those who independently exercise in the district an industrial calling of the kind for which the gild is founded, those who occupy a position as master mechanic in a factory, those who have formerly belonged to either of the two mentioned classes and agricultural or industrial laborers. Membership may by the charter be made dependent on an examination, but no one may be refused admission who fulfils the legal requirements. Resignation may be effected at the close of each fiscal year and involves the loss of all claims on property or capital of the gild. The gilds may impose dues for all their legal pur- poses and may compel their payment by the same means available for the collection of taxes. Controversies re- garding dues are brought before the supervising organs with protest to the higher authorities. A strict control of the finances is to be exercised by the administrative authorities. The general organ for control of finances, as well as other matters, is the subordinate administra- tive authority in the district, which has wide powers of supervision. Gilds may be dissolved if their charters are found to be contrary to law, if the gild persistently fails to perform its legal ends or if it otherwise acts in an illegal manner and furthermore, if the number of members diminishes to such an extent as to make it seem incapable of ful- 284 PRINCIPLES OF PRUSSIAN ADMINISTRATION filling its functions. In all of these cases, the higher ad- ministrative authority may order the dissolution of the gild. Bankruptcy proceedings moreover operate to dis- solve a gild. Not only are voluntary gilds of all kinds fostered by law, but compulsory gilds may also be constituted. 1 They may be established upon request by administrative order for a certain district to include all workmen in a given trade. Compulsory membership may be imposed when a majority of the workmen in the district desire it and there are sufficient workmen of the trade in the district to constitute a gild strong enough to fulfil its purposes. Only such workmen can be compelled to join as are near enough to the seat of the gild to participate in its activities and to enjoy its benefits. In other respects all the provisions of the law relating to volun- tary gilds are applicable to these compulsory gilds, with such minor modifications as were deemed necessary in view of the involuntary elements involved. Joint gild committees may be constituted, composed of representatives of two or more gilds, subject to the same controlling authority. Their object is to further the common interests of the gilds represented, and they may be endowed with rights and duties of the gilds which they represent. Their nature is determined by charter, framed by the gilds interested and approved by the superior 1 G. O. 100-102. LABOR REGULATION 285 administrative authority. Gilds not under the same controlling authority may unite to form joint gilds (Innungsverbande) . They accomplish the same purposes for the larger districts that the single gilds do for the smaller districts, and their constitution and powers are similar to those of the latter. 1 Another form of organization for the benefit of the handicrafts are the tradesmen's chambers (Handwerks- kammern.) 2 They are established by order of the central state administrative authority for a territory designated by the same. The number of members is determined in the charters. They are chosen partly by the workmen gilds from among their own number, partly by workmen's associations. Only such persons are eligible to membership as are qualified to service as lay judges (Schoffen), are thirty years of age, have followed a handicraft for at least three years as independent work- men within the district, and are authorized to train apprentices. The members of the chamber are chosen for six years, one-half going out of office every three years. The chambers may increase their membership up to 20 per cent by the election of experts and invite others to an advisory participation in the meetings. The particular functions of the tradesmen's chambers are to regulate the conditions of apprenticeship and to supervise the fulfilment of the regulations passed there- 1 Ibid. 104, a-n. 2 Gewerbeordnung, Title in. 286 PRINCIPLES OF PRUSSIAN ADMINISTRATION for, to give information and advisory opinions concerning the handicrafts to the state and local administrative authorities, to consider petitions and proposals relating to the trades and report the same to the authorities, to constitute committees for the examination of assistants and to raise a voice in all matters affecting the interests of trades and handicrafts. Orders of the tradesmen's chambers within their juris- diction must be obeyed by the gild committees and the regulations of the latter concerning apprentices must be in accordance with the measures passed by the chambers. The chambers themselves elect an executive committee from among their own number which acts in matters not expressly reserved to the chamber as a whole. State su- pervision is directly exercised by an agent of the con- trolling administrative authority. This agent must be asked to attend every meeting of the chamber, its execu- tive and other committees, and must at all times be heard upon demand. He is empowered to inspect all papers of the organization and to require meetings for the consid- eration of questions submitted by him, and may suspend measures of the chamber or its agents which he regards as ultra vires. A special assistants or associates committee (Gesellen- ausschuss) must be chosen by each chamber to cooperate in measures affecting apprentices and assistants, as in the case of the gilds. LABOR REGULATION 287 The costs of the tradesmen's chambers are borne by the communes within the district in quotas determined by the higher administrative authorities. The communes in turn may collect their quotas from the handicrafts in a manner and to an extent determined by the higher administrative authorities. By order of the central state authorities, the costs may be imposed upon the higher public corporations instead of on the communes. The charter of the tradesmen's chambers is issued by the central administrative authority and must contain provisions similar to those required for the charters of the gilds. In general, the provisions as regards the management of the chambers are like those for the gilds, but the former are not corporations as are the latter, though they may acquire property, enter into contracts, sue and be sued, and may exercise certain governmental powers. Tradesmen's chambers which persistently fail in the performance of their duty, after exhortations from the higher administrative authority as supervising organ, or which act unlawfully to the detriment of the general welfare, may be dissolved by order of the supervising authority. This order may be protested to the central authorities, whose decision is final. The special protection provided by law for workmen is of two general kinds, preventive and remedial. Pre- ventive measures are contained in Title vii of the indus- 288 PRINCIPLES OF PRUSSIAN ADMINISTRATION trial code and comprise restrictions on the freedom of contract in the interests of the workmen. The remedial measures are contained in the imperial insurance code, which prescribes the rules for compulsory insurance of workmen against accident, sickness and death. The industrial code, after declaring that the freedom of contract between employers and laborers is subject to no other limitations than those contained in that code, enumerates the restrictions passed for the benefit of the laborers. So labor may not be required on Sundays and holidays as a general rule. A minimum of twenty- four hours' rest is prescribed on Sundays and on single holidays. For two or three consecutive holidays, thirty-six and forty-eight hours, respectively, are re- quired. The executive of each state determines what are holidays in that state, but Christmas, Easter and Pentecost are fixed for all of Germany. Exceptions to the general rule forbidding the requirement of labor on Sundays and holidays are permitted in cases of neces- sity or in the interests of the public, and for certain other industries the Bundesrat may constitute exceptions when deemed desirable. In still other cases, the higher state administrative organs are authorized to permit exceptions to the rule. The employment of minors as laborers is subject to special requirements of an official work-book showing name, place and date of birth of employee, and name LABOR REGULATION 289 and last residence of his legal representative and his signature. Every employer must enter in this book the time of beginning the service, the kind of labor performed and time of termination. Workmen may, on terminating a service, require a certificate as to the nature and length of their service and also, if desired, as to their conduct and efficiency. The Bundesrat may require for special industries the keeping of wage-books, showing the terms of the con- tract under which the laborer works. If the Bundesrat does not exercise this right, the state authorities may do so. Wages must be paid in cash in imperial currency. Goods may not be credited to workmen, except that the necessi- ties of life may be furnished on credit and a reasonable price therefor be deducted from the wages. Contracts in violation of these provisions are invalid. Nor may wages to an amount larger than a week's payment be withheld as security for damages resulting from breach of contract. The local administrative corpora- tions may by statute require payment of wages at regular intervals of from one week to one month. Employers are bound to grant minors in their employ sufficient time for the attendance at the technical schools provided for such persons, and the local authorities may make the at- tendance at such schools compulsory for minor work- men. For the protection of the life and health of the work- 2QO PRINCIPLES OF PRUSSIAN ADMINISTRATION men, employers are obliged to conduct their undertakings in a way to insure a* minimum of danger. In particular, sufficient light and air must be provided, and dust, gases and waste be properly disposed of. Danger from machines and from fires are also especially to be provided against. Not only must the employer take the necessary measures to protect the life and health of the workmen in his employ, but must also provide for the protection of decency and good morals. The separation of the sexes whenever possible, the furnishing of separate dressing rooms, etc., are all requirements of the law. Minors under eighteen years of age must be furnished special safeguards for health and morals. The issuing of orders calculated to enforce the above provisions of the law in the different industrial plants is the duty of the police authorities for the district. They may also require the workmen to be furnished with special rooms for meals, to be heated in cold weather. The employers may protest against such police orders be- fore the higher authorities, with final appeal to the cen- tral authorities. General regulations intended to insure the protection required by the law may be issued by the Bundesrat, or, if it fails to do so, then by the cen- tral or by the lower police authorities of the state. In the latter case, the directors of the cooperative labor associations are entitled to be heard. > Employments which, by the excessive length of the LABOR REGULATION 2QI working day, may prove detrimental to the health of the workmen, are subject to regulation by the Bundesrat or the state authorities as regards the beginning, duration and close of the working day. Special police orders may be issued for single establishments, so far as not dealt with by general regulations as provided above. Special provisions exist in the law as regards associates and assistants, regulating the contract relations between them and their employers. The same is true for appren- tices, who may be engaged only by persons fulfilling certain legal requirements. The apprentices are pro- tected against overwork and are insured opportunities for education in their field of work. They are entitled to a certificate at the termination of their apprenticeship. For establishments employing more than ten workmen, special regulations are contained in the law. Children under thirteen years may not be employed at all ; those over thirteen years, only if no longer of school age. Children under fourteen years of age may not be em- ployed more than six hours a day, those under sixteen not more than ten hours. In certain industries, children may not be employed at all. The law further determines the hours of beginning and ending work and the inter- missions to be granted. For female workers, night employment is forbidden. A minimum of eleven hours' rest is required and eight weeks' discontinuance at childbirth. Certain industries 2Q 2 PRINCIPLES OF PRUSSIAN ADMINISTRATION are entirely forbidden for female workers. For both children and female employees, it is forbidden to give them work to be done at home after a regular working day. The employment of children or female workers must be notified to the police, indicating the conditions of the employment. Notices must be posted conspicu- ously in the place of employment, showing the hours of beginning and ending work, the intermissions, etc. The Bundesrat is given authority to issue regulations for particular branches of industries, forbidding the em- ployment of children or female workers or imposing certain conditions on such employment. In the exercise of this power, a great number of restrictions have been placed on the employment of children and female workers in industries presenting special dangers to life or health or morals. On the other hand, certain excep- tions to the general requirements are also permitted and have been established by the same power. The state supervision over the execution of the legal requirements enumerated above is intrusted to special officers clothed with the ordinary powers of the police authorities. They must make annual reports which are to be submitted to the Bundesrat and Reichstag. Special industrial courts are provided for by imperial law, for the settlement of controversies concerning employment in industrial undertakings. They are con- stituted by act of the local governmental corporations LABOR REGULATION 293 or by order of the central authorities if requested thereto. For communes of more than twenty thousand inhabitants such courts are required. They are composed of a chair- man and at least four other members. The chairman may not be either employer or employee, but the members must be chosen half and half from each class. The procedure is similar to that in the regular lower courts, but professional counsel is forbidden. Aside from decisions, these courts may render advisory opinions and act as arbitrators in case of disputes as to the continuance or renewal of work. So far there have been considered the preventive measures intended for the protection of the workmen. There remain to be mentioned the remedial measures provided by law for damages which the workmen may suffer in their employment. They are contained in the new imperial insurance code, 1 which deals with three kinds of compulsory workmen's insurance. The first is insurance against sickness; the second, insurance against accident in the employment; and the third, insurance in case of permanent incapacity and death. The imperial insurance code supersedes all prior laws concerning the insurance of workmen. The bearers of the insurance are in general the sick relief treasuries (Krankenkassen) for insurance in case of sickness, the cooperative associations (Berufsgenoss- 1 Reichsversicherungsordnung, May 31, 1911. 294 PRINCIPLES OF PRUSSIAN ADMINISTRATION enschaften) for accident insurance, and the insurance istitutes (Versicherungsanstalten) for invalid and life insurance. The public insurance authorities comprise the state inferior insurance offices, the state superior insurance offices and the imperial insurance office. The inferior insurance offices are constituted by special branches of the lower administrative authorities, either for their districts or for several districts. The head of the admin- istrative authority is director of the insurance office. As associates in the cases designated by law, he receives at least six representatives of employers and of the insured. These representatives are chosen by the direc- tors of the sick relief treasuries, serve without pay and are obliged to accept the office. Within each inferior insurance office, special commit- tees are formed for the two kinds of proceedings pre- scribed by the law. Each committee has the director of the insurance office as chairman, and two representa- tives one of the employers, the other of the insured as members. All costs of the insurance office are borne by the state, which may impose them on its local corporations. The superior insurance offices act as appellate and supervising organs. They may be attached to existing state or imperial offices or be constituted as independent organs, as the supreme administrative authority may LABOR REGULATION 295 provide. As a rule, the territorial jurisdiction is to coincide with that of the higher administrative authori- ties. They comprise members and associates. The members consist of officials appointed for life, one of them being appointed director. The associates, normally forty in number, consist one-half of employers and one- half of insured. The superior offices constitute special chambers for the proceedings prescribed by law. Supervision over the superior insurance offices is exer- cised by the highest administrative authority, which must provide suitable quarters and adequate assistance. The imperial insurance office in Berlin constitutes the highest authority in matters of workmen's insurance. It comprises permanent and temporary members. The former are appointed for life by the emperor on nomina- tion of the Bundesrat. He designates the president in the same way. He appoints the directors and senate presi- dents while the chancellor appoints the other officers. There are thirty-two temporary members, eight chosen by the Bundesrat, twelve by employers and twelve by the insured. Six of the eight members chosen by the Bundes- rat must be members of that body. The imperial office is divided into senates for the same purposes as the committees in the inferior officers and the chambers in the superior offices. The costs of the office are borne by the Empire. The insurance against sickness covers workmen, 296 PRINCIPLES OF PRUSSIAN ADMINISTRATION associates, assistants and apprentices, servants, masters, mechanics or superintendents, actors, members of orchestras, teachers and mariners, provided that they work for compensation, except in the case of appren- tices. The requirement of insurance does not extend to employees of the Empire, the states, or its governmental corporations, if they have claims against their employers in case of sickness. The same is true for teachers in public schools or institutions. Certain other exceptions to the general obligation of insurance are also consti- tuted or permitted by the law. The right to insurance extends to certain classes not subject to the legal obligation of insurance. The amount of the insurance to be rendered by the insurance treasuries is determined by law according to the average wages of the class of workmen insured. The assistance rendered is either in the form of medical care or of money amount- ing to half of the average wage, for each day of incapacity. Such assistance terminates at the latest twenty-six weeks after beginning. This period may be extended to the term of a year by act of the treasury, and special convalescent relief may be afforded for a year after termination of the sick relief. The amount of money paid may also be increased by the treasury. The law determines in detail the organization and powers of the sick relief treasuries, which are under the supervision of the insurance offices. LABOR REGULATION 2Q7 The funds for the sick relief are to be collected from employers and from the insured, two-thirds from the latter and one-third from the former. The treasury may classify the contributions to be paid according to the character of the employments. They are to be reckoned in percentages of the wages and of an amount just sufficient to cover the legal expenses of the treasury. Normally, the contributions are not expected to exceed 4j^ per cent of the average wage. The contributions must be paid in regular instalments at least once a month, and the employer is to subtract the contributions of his employees from the wages. Accident insurance is required for nearly all branches of industry as enumerated in classes in the imperial law. It extends to all workmen, assistants, associates and apprentices, as well as to higher officials whose compensation does not exceed five thousand marks a year. The amount paid is the equivalent of the damage caused by the accident; it includes medical treatment and a pension beginning with the fourteenth week after the accident. The pension amounts to two-thirds of the wages when complete incapacity results, but the amount may be varied by the association. The cooperative associations which are the bearers of the insurance comprise the employers in the specified undertakings. These associations manage their internal concerns according to a constitution adopted by the asso- 298 PRINCIPLES OF PRUSSIAN ADMINISTRATION ciations and approved by the imperial insurance office. It comprises an executive committee elected by the association for the administration of its affairs. The association classifies its industries according to the risk, which is determinative for the contributions to be paid. The means for the payment of the insurance are collected by membership dues from the employers, according to the wages paid in their establishments and the risk involved in their industry. The associations issue regulations for the prevention of accidents in the pursuits engaged in by their members. Special regula- tions exist for accident insurance for agricultural laborers and for mariners. The supervising organ is the imperial insurance office. The third form of insurance provided for in the im- perial code is that in case of invalidism or death. This extends to persons over sixteen years of age of the same classes subject to insurance against sickness. The com- pensation granted includes invalid and old age pensions, as well as pensions for dependants in case of death. The bearers of the insurance are insurance institutes established by the states. They are organized according to the laws of the states, but must be approved by the Bundesrat. There is an executive committee composed of officials appointed by the public authorities, of repre- sentatives of employers and insured in equal numbers. Each institute has a special committee for electing the LABOR REGULATION 2QQ non-official members of the executive committee, for preparing the budget and the annual report and chang- ing the constitution. The funds for the insurance are paid partly by the Empire, partly by the employers and partly by the insured. The employers and the insured pay weekly contributions in equal parts and the Empire furnishes annual bonuses for all moneys actually paid by the institutes. The amount of weekly contributions is determined by the Bundesrat for ten years in advance. The employer pays each week his share and that of his employees and retains the latter on payment of the wages. Or the employee himself may pay and then recover from the employer the amount due. The insured may get a claim to higher returns by volun- tarily paying larger contributions than those required by law. The amount paid to the insured or his dependants varies according to the amount of contributions paid, beginning with a certain minimum, plus the imperial bonus. INDEX Abdication of Emperor Francis II, 59. Act, of Margrave, 18. of Oct., 1807, 40. of Nov. 19, 1808 (City Gov't), 40. of Dec. 26, 1808, 42. of Oct. 27, 1810, 44. of 1811, 44. of April 30, 1815, 47. of 1817 (decree), 48. of 1808 (Municipal Gov't), 50. of 1850 (Commune), 51. of May 30, 1853, 51. of 1872 (Circle Gov't), 55. of June 29, 1875, 56. of 1891 (Rural Commune), 58. circle government, 106, 107, no, 113, 123. general administration, 106. of 1815 (division of state), no. city government, 128, 129, 144, 145. of 1808 (City Gov't), 128. of 1831, 1853, 1856, 1897 (City Gov't), 129, 144. of 1858 (Hannoverian City Gov't), 145- confirmation and authentication, 167. of divestiture, 166, 167. of investiture, 166. See also Law. Adjudication, 171, 172. Administration, of Frederick William I, 28, 29. imperial, 64. state, 65. expenses of, 141, 142. three groups of, 152. Administrative courts, 185. Agriculture, 71. Albrecht Achilles, 18. Albrecht the Bear, 13, 14. Aldermen, 138. Alliance, 60, 61. Altenstein-Dohna Ministry, 41. Amter, 149. Amtkammer, 25. Amtmann, 16. Amtsausschuss, 112, 124. Amtsbezirke, 55, 123. Amtsvorsteher, 124. Appellate court, 183. Apprentices, 291. Army, 33, 52. Assembly, provincial, 47, 48. confederate, 60. commune, 147, 148. union, 151. limitation of, 232. Associations, political, 232, 233, 234. Ausfiihrungsverordnungen, 156, 157. Austria, 21. friction with Prussia, 60. Authorities, central, 67. subordinate, 80. Autonomy, 33, 40. Awards, 181. B Bailiwicks, 15. Ballots, secret, 145. Berlin, 81. administration of, 85. duties of, 93. district functions, 99. organization of, 104. church relations, 105. as separate circle, 112. special authorities, 122. police organism of, 141. special union for, 151. 301 3 02 INDEX Berlin (continued}, special disciplinary court of, 213. relief union, 261. Berufsgenossenschaften, 294. Bescheid, 181. Beschlussbehorde, 173. Beschlussverfahren, 172. Beschwerde, 192. Beyme, 39. Bezirksausschuss, 100, 102. Brandenburg, 14, 17, 18, 20, 21, 23, 26, 34, 55, 57, 104. Breslau, relief union, 261. Building, 255-258. Bundesamt fiir Heimatwesen, 265. Bundesrat, 63. power of, 65, 66. on infection, 247. on industries, 292. Biirgermeistereien, 149. Biirgerrecht, 131. Burgervorsteher, 145. Burial, 253. Cantons, 28. Catholic sees, 18. Cattle diseases, 252. Cemeteries, 253. Central government, 20, 21. Centralization, 25, 26. Centre of authority, 26. Chambers, war and domain, 31, 42. of Accounts, 78. Chancellor of state, 47. Church, as landowner, 15, 16. Circle, management of, 24, 25. government act, 42, 43, 55, 56. changed to subprefectures, 44. government of, 49. acts, 57. representations of, 87. taxes, 96. divisions of districts, 105, 106. city, no, in. as corporations, 112, 113. Circle Assembly, 114-116. taxes, 120, 121. dissolution of, 122. Circle Committee, functions, 107. members, 108. as court, 109, 182. executive board takes place of, no. Posen appointments, 112. Circle Corporation, 87. powers of, 114. expenses of, 118, 119. taxes, 118, 119, 120, 121. Circle diet, 49. Circle director, jurisdiction of, 32. appointment and functions of, 106, 107. duties, 1 1 8. powers, 121. police authority of, 161. Cities, needed reform in, 32, 33. government of, 128. creation of, 129. changed, 130. Citizenship (City Commune), 131, 132. conferred, 209. City Committee, in. City Communes, laws regarding, 128, 129. citizenship, 131, 132. rights and powers of, 132. school management of, 270, 271. City Council, members, 133, 134. meetings, 136, 145. functions, 137, 138. Civil Cabinet, 76. Classes, lower, 33. Cleveberg, 47. Cleves, 20, 21. Code, civil criminal, 238. military criminal, 239. Prussian general. (See General Code.) Colonization, 13, 14, 15, 35. Commerce and Industry, 71. Commissaries, 24. Commission, sanitary, 255. Commissions, special, 140, 141. Commune, kinds, 128. status, 129. INDEX 303 Commune (continued), director of, 148. powers regarding newcomers, 224, 225. executive, rights of, 226. See also City Commune and Rural Commune. Compensation rights, 200, 201, 202, 203. Confederation, Rhine, 59. German, 60. North German, 61. Confiscation of publications, 230, 231. Conflicts of jurisdiction, 186, 187. Congress of Vienna, 35, 59. establishes Confederation, 60. Constitution, Prussian, 17, 18, 19, 39, 40, 41, 42, 48, 51, 155, 156, 157, 201, 205, 225. German, 62, 63. imperial, 234, 235. Controversies, 177, 178, 179. Corporations, 113. Council, imperial sanitary, 254. Council of State, 46, 75, 76. Courts, provincial, 42. supreme administrative, 77, 78, 176, 184, 185, 189. of accounts of German Empire, 80. special administrative, 175, 176, 177, 178, 179, 180, 182. Prussian, 187, 188. martial, 238. special industrial, 292, 293. Cremation, 253. Crimes, official, 200. D Damages, resulting from acts of gov- ernment, 200. compensation for, 200, 201. Decentralization, 54. Deichverband, 242. Dike unions, 242. Directorate, general, 30, 31, 32. collegial, 148. Diseases, 245, 246, 247, 248. Disintegration, of military organization, 15, 16, 17. under Frederick II, 37. District Committee, 102, 103. supervision of, 121. duties of, 137, 143. as court, 183. District Corporation, 92, 93. District government, introduced, 48. jurisdiction of, 48, 49. departments of, 48, 49, 273, 274. subdivisions of, 49, 99, 105. functions of departments of, 100, 101. District President, supervision of, 121. power of, 122, 139. duties of, 137, 138. functions of, 142, 143. police authority of, 161, 226. Distriktskommissarien, 127. Disziplinarhof, 75. Domains, 16. Domicile for support, 262, 263. Dualism, 20. Early feudal state, 13, 14. East Frisia, 34. East Prussia, 47, 261 . Eastern provinces, 129. Education, 267. minister of, 273. Election, 135. Electorate classes, 133. Emigration, 225. Eminent domain, 201. Emperor, 237. Empire, German, 53, 62, 63, 64. Empire, Holy Roman, 59. Enfeoffment, 13, 14. Erganzungsverordnungen, 156, 158. Executio ad faciendum vel omittendum, 168. Executio ad solvendum, 158, 159. Execution, administrative, 158, 159. Expropriation law, 201, 202. 304 INDEX Federation, North German, 53, 61, 62, 63- Fees, administration, 142. Finances, Ministry of, 69. Fire, 240, 241. Fiskus, 203. Floods, 241. Food laws, 249, 250. Foreigners, 266. Fortbildungsschulen, 274. France, 21. Francis II, Emperor, abdication of, 59- Frankfort on the Main, 52. government of, 144, 145. Frederick I, 17. Frederick II, 17, 18, 33, 34, 35, 36. Frederick III, 26, 27. Frederick William I, 22, 23, 24, 28, 29, 30, 33- Frederick William II, 36, 37. Frederick William III, 37, 50. Frederick William IV, 50. Freedom, industrial, 44, 45. Further Pomerania, 21. Gemeinden, 128. Gemeindepolizei, 221. Gemeindevertretung, 147. Gemeindevorsteher, 147, 148. Gendarmerie, 221. General Code of 1794, 160, 164, 204, 205, 219, 243. Generalkommission, 84. Generalkriegskommissar, 23. Gentry, 43. Gesellenausschuss, 286. Gewerbeordnung, 227. Gilds, 281-284. Golden Bull, 17. "Governments," 100. Grants, 156. Gutsbezirke, 150. Gutsvorsteher, 150. Gymnasia, 275, 276. Handwerkskammern, 281, 285. Hannover, 52, 57. government, 92, 145. police functions, 127. law regulatory, 149. electoral franchise, 150. Hardenberg, Count, 38, 43, 44, 47. Health, officers, 254, 255. protection of workmen's, 290, 291, Hechingen, 146. Helgoland, 93. Henry I, 13. Hessen, 52. Hessen-Nassau, 57. administration, 92. organization, 105. jurisdiction, 105. police functions, 127. law for, 129. act for, 149. relief union, 261. Hochschulen, 276. Hohenstaufens, 15. Hohenzollern, 17, 81. lands of, 18. district, 99. organization, 112. police functions, 127. government, 145, 146. commune organization, 150. principalities, 185. Holidays, 288. Holstein, 52. Imperial civil code, 168. provisions of, 197, 198. Imperial code, 240. insurance, 288, 293, 299. Imperial criminal code, 225. regarding public order, 244. Imperial industrial code, 280-283. Imperial insurance office, 295. Imperial law, of 1900, 202, 203, 245. of 1908, 233. See also Law and Act. INDEX 305 Infection, rules regarding, 245-248. Innungen, 281. Innungsverbande, 285. Inspection of cattle, 252. Inspectors, school, 274. Institutions, 94, 95. Insurance, workmen's, 293. rights to, 295, 296. requirement of, 296. exceptions, 296. death or accident, 298, 299. Interior, Ministry of, 70. Joachim, Frederick, 20. Jurisdiction, conflicts of, 185-188. police, 220, 221. King, 67, 68. Kompetenzgerichtshof, 75. Kompetenzkonflikterhebung, 189. Konfliktserhebung, 189, 199. Krankenkassen, 293. Kreisausschuss, 106, 107, 114. Kreise, 80. Kreistag, 114. Kronrat, 73. Landarmenverbande, 260. Landbiirgermeister, 149. Landbiirgermeisterein, 126. Landdrostein, 52. Landed classes, 19. Landesdirektor, 87, 90. Landeshauptmann, 90. Landesrate, 91. Landgemeinden, 128. Landkreise, 87, 106. Landrat, 24, 25, 49, 106, 114. Landstande, 17. Lauenburg, 93. Law, revision of, 56, 57. of 1872, regarding Chamber of Ac- counts, 78. organizatory, 92. of 1873, 1875, 1902, 1906, regarding expenses of province corpora- tions, 94, 95. of 1815, subdividing provinces, 99. of 1817, 1825, 1883, denning status of governments, 100, 101. enforcement, 167. of 1884, ministerial regulation, 172. of 1883, jurisdiction of courts, 173, 177, 180. of 1875, special, organizing court system, 175. of 1847, conflict of jurisdiction, 186. imperial, 187, 188, 189. of 1854, "raising the conflict," 189. concerning liability of Prussia, 199. of 1874, as to expropriation, 201. of 1870, federal, regarding citizenship, 209. of 1867, North German Federation, 223. of 1842, liberty of motion and abode, 223, 224. of 1851, liberty of press, 226. of 1848, on dikes and diking, 241, 242. of 1879, food, 249. of 1900, food, 249. of 1909, "cattle diseases," 252. building, 258. of 1008, regarding paupers, 259. regarding schools, 267, 268, 269. for working classes, 278, 279, 280. labor, 288. regarding minors, 288, 289. regarding child labor, 291. regarding woman's labor, 291, 292. See also Act. Legislation, reform, 55. classification, 152, 153, 164. Legislature, 52. Liability, 198, 199. Liberty of association, birth of, 232. protection to Germans only, 236. Liberty of the press, 226, 227. INDEX Liberty regarding abode, 223, 224. License, law regarding, 165, 166. Limitations on liberty of press, 226, 227. Lothar, 13. Lower Rhine Province, 47. M Machinery, judicial, 174. Magistral, 32, 40. list of voters kept by, 133. powers of, 134. connection with council, 136, 137. members, 138. duties, 139, 140. and tax assessment, 142. meetings, 145. police authority of, 220. Manorial precinct, 150. March, 17, 18, 20, 21. Margrave, 18, 19, 20. Margraviate, 15, 16, 18. Maria Theresa, 34. Mayor, 140, 220. Meat, laws regarding, 250, 251. Meetings, public, 234-236. Military Cabinet, 76. Military organization of Frederick William I, 28, 29. Minister President, 72. Ministerialdirektoren, 69. Ministers, of justice, 31. duties of, 68. of state, 72, 73, 74. of the interior, 96, 97, 139. powers of, 96, 97, 98. of finance, 97. police authority of, 161, 162. Ministry, 41. of interior, finances, foreign affairs, war and justice, 41 . number of, 68. spiritual, educational and medical, 70. of royal household, 71, 72. Minors, 236. Misdemeanors, official, 200. Monarchy, absolute, 22. Municipal Government Act of 1808, 50. N Napoleon, 37. demands of, 39. overthrow of, 59. Nassau, 52. Nassauer Memorial, 39. Naval Cabinet, 76. Nobility, ruling class, 33. Non-Burgesses, 32. North German Federation, 224. abolishes restrictions, 279. Northmarch, 13, 14. Notverordnungen, 156, 157. Niirnberg, 17. Oberamtman, 113. Oberamtsbezirke, 112. Oberprasident, 47. why created, 81. functions, 82, 83. Oberrealschulen, 275. Oberregierungsrate, 100. Oberverwaltungsgericht, 75, 77. Oberzolldirektion, 84. Officers, 204, 205, 206, 207. duties and obligations, 210, 211. punishment of, 212. discipline of, 214. protection and honorary rights, 215, 216. building, 258. insurance, 294. Ordentliche Professoren, 277. Orders, special, 163, 164. Ordinance, internal, 153, 154. police, 162. of local self-administration, 162, 163. of 1899, 1 68. of 1808, 169. of 1883, 169, 170, 171. Ordinances, general, 153, 154. Ordnungsstrafen, 218. Ortsarmenverbande, 260. Otto I, 13. Otto III, 13. Overlords, 15, 16, 17. INDEX 307 Paupers, relief of, 259, 260. rights of protests of, 262. Peace of Westphalia, 21. of Tilsit, 38. Peasants, colonization of, 14. taxes of, 29. rights of, 45. Permits, building, 256, 257, 258. Poisons, 253. Poland, 21, 26, 34, 37. Police, ordinances, 158-162, 240. orders, 164, 165, 194. definition of term, 218, 219. security, 222, 223. measures to preserve order, 237. power of, 240, 241, 243. Polizeiprasidum, 141, 220. Polizei verordnungen, 158. Pomerania, 26, 55, 57. Poor relief, 259. Posen, 57, 58, 92, 112, 127, 129. Posters and placards, 231. Power, supervisory, 65, 66. Prague Treaty, 60, 61. Precinct, police, 123. director, 124, 125. committee, 125, 126. manorial, 130, 131. powers, 149. Presidents, superior, 31, 41, 42. Primogeniture, 18. Privy Cabinet, 76, 77. Privy Council, 20, 26, 27, 28, 31. Privy Court Chamber, 26. Proceedings, oral, 181, 182. against administration, 196, 197 Professors, 278. Property owner's duty, 243, 244. Protection, individual rights for, 191197. for workmen, 287, 288. Protests, election, 134, 138, 139. rights to, 192, 193, 194. Province Assembly, 87, 88, 89, 98. Province Boards, 84, 85. Province Committee, 89, 90, 91. Province Corporation, 86, 87, 93, 94, 95, 96, 97- Province Council, 83. supervision of, 121. Province Director, 90, 91. Province local administration, 85, 86. Province President, 81, 82, 83, 121, 161. Provinces, government of, 47. number of, 80, 81. Provinzialansschuss, 87, 89. Provinziallandtag, 83, 87. Provinzialrat, 81, 83, 102. Provinzialschulkollegium, 84. Prussia, 14, 20, 21, 22, 23, 26, 34, 36, 37, 38, 45, 47, 50, Si, 52, 53, 54, 55, 57, 59, 60, 62, 80, 104, 203, 205, 260, 261. Prussian general code, 202, 267. Prussian legislature, 240. Prussian nearer Pomerania, 28. Publications, 227, 228, 229, 230, 231. Public Works, Ministry of, 70. Punishment for misconduct in office, 212, 213, 214, 215. Radicalism, 51. Ravensberg, 21. Reaction, 45. Realgymnasien, 275. Rechtsverordnungen, 153. character, 154. classes, 156. Reforms (of Baron von Stein), 40, 51, 53-58. Regierung, 99. Regierungsassessor, 208. Regierungsassessoren, 100. Regierungsbezirke, 80, 99. Regierungsprasident, 85, 100. Regierungsreferendar, 208. Regierungsrate, 100. Relief for sick, 297. Remuneration of officers, 216. Requirements, public office, 207, 208, 209. INDEX Restrictions on press, 226. Review, administrative, 172-174. Rhine Province, 47, 50, 57, 112, 144, 149. Rigaer Memorial, 44. Rights, individual, 195. Royal Prussian States, 27. Rural Circles, provisions for, 107. state control over, no, in. organs of corporation, 114. Rural Commune, 43, 49. Act, 58, 146, 147, 148, 149, 260. incorporation of, 130, 131. school management of, 271. Safeguards, 240. Saxons, 13. Saxony, 21, 55, 57. Schatzrate, 92. Schleswig, 52. Schleswig-Holstein, 93, 99, 126, 149. Schoffen, 138, 148, 285. Schools, 268, 269, 270, 271, 276, 278. Schulverbande, 269. Schulzmanschaft, 221. Selbstandige Gutsbezirke, 128. Self-administration, 47, 48, 55, 58. Seven Years' War, 34. Siege, state of, 237, 238, 239. Sigismund, John, 21. Sigmaringen, 145. Silesia, 34, 55, 57. Slavs, 13, 14. Special codes, 240. Staatsministerium, 72. Staatsrat, 75. Staatssekretar, 69. Stadtausschuss, in. Stadtgemeinden, 128. Stadtkreise, 87, 109. Stadtverordneten Versammlung, 132. State, 154, 155, 221. Stein, Baron von, 38, 39, 40, 41, 42, 43, 128. Streets, cleansing of, 253. Subvention Act, 56. Supervision, by empire, 64, 65, 66. by state, 122, 142, 143. of press, 227. school, 276. Supreme Chamber of Accounts, 78, 79, 80. Tax, officials, 24, 25. under Frederick William I, 29. province corporation, 95, 96. levying of, 141. committee, 142. Teachers, state officers, 271. election of, 272. private, 273. special, 273. Termination of office, 116, 117. Territories, coordination of, 52, 53. Thirty Years' War, 22, 23, 24. Three-class system of voters, 114, 115. Trade, 278, 279, 280, 281. Tradesmen's chambers establishment, 285. functions, 286. cost of, 287. Treaties, military and commercial, 61. framed with southern states, 62. Treaty, ancient, 34. U Union, special, 151. Union Committee, 151. Unions, relief, 260-266. Universities, 277, 278. Unterstiitzungswohnsitz, 262. Vaccination law, 248, 249. Variations, 92, 93. Vassals, 16. Verbandsansschuss, 151. Verbandsvorsteher, 151. Verleihung, 166. Verordnungen, 153. Versicherungsanstalten, 294. Verwaltungsgerichtsbarkeit, 174- INDEX 309 Verwaltungsklage, 192, 195. Verwaltungstreitverfahren, 172, 174. Verwaltungsverordnungen, 153. Veterinarians, 255. Vogteien, 15. Vortragende Rate, 69. W War, against Napoleon, 45. Danish, 52. Austrian, 52, 60. Franco-Prussian, 53, 61, 62. Westphalia, 50, 57, 112, 129, 144, 149. West Prussia, 47. William I, 52. Workmen, 289, 290. Zweckverbande, 150, 151. Zweckverbande and Samtgemeinden, 128. T HE following pages contain advertisements of a few of the Macmillan books on kindred subjects The Government of American Cities By WILLIAM BENNETT MUNRO, PH.D., LL.B., Pro- fessor of Municipal Government in Harvard University Cloth, 8vo, $2.2 j; by mail, $2.42 " It is doubtful if a more scholarly and unprejudiced presentation of the tendencies of the times, showing the faults and advantage of our systems of municipal management, has before appeared. The book will be appreci- ated everywhere." 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By WILLIAM ARCHIBALD DUNNING, PH.D., Profes- sor of History in Columbia University. A History of Political Theories 2 Volumes I ANCIENT AND MEDIEVAL II FROM LUTHER TO MONTESQUIEU Cloth, 8vo, each $2.50 net The successive transformations through which the political consciousness of men has passed from early antiquity to modern times are stated in a clear, intelligible manner, and to aid in a fuller study of the subject refer- ences are appended to each chapter covering the topics treated therein. At the end of each volume has been placed an alphabetical list containing full information as to all the works referred to, together with many additional titles. THE MACMILLAN COMPANY Publishers 64-66 Fifth Avenue New York The Government of England By A. LAWRENCE LOWELL, President of Harvard Uni- versity ; Formerly Professor of the Science of Government ; Author of " Colonial Civil Service," etc. In two volumes. Bound in the style of Bryce's "American Commonwealth." 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It is not impossible that it will come to be recog- nized as the greatest work in this field that has ever been produced by an American scholar." Pittsburg Post. " The comprehensiveness and range of Mr. Lowell's work is one of the reasons for the unique place of his ' Government of England ' for its place is in a class by itself, with no other books either by British or non- British authors to which it can be compared. Another reason is the in- sight, which characterizes it throughout, into the spirit in which Parliament and the other representative institutions of England are worked, and the accuracy which so generally characterizes definite statements ; all contribute to make it of the highest permanent value to students of political science the world over." EDWARD PORRITT in The Forum. THE MACMILLAN COMPANY Publishers 64-66 Fifth Avenue New Tork 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. : -"" " r JJBRARY LD MAY 2 4 1967 MAR 2 31970 4 g 11981 REC.CIR LD 21A-60m-7,'66 (G4427slO)476B General Library University of California Berkeley -J" THE UNIVERSITY OF CALIFORNIA LIBRARY