of the representative chamber.22 In Stockdale v. Hansard,23 however, it was held to be no defense in law to an action for publishing a libel that the defamatory matter was a part of a document which was, by the order of the house of commons, laid before the house, and which thereupon became part of the proceedings of the house, and was afterwards, by its authority, published by the defendant. Coleridge, J., considers the judgment pronounced as not invading the privilege of the citizens, but that "by setting them on the foundation of reason, and limiting them by the fences of the law, we do al! that in us lies to secure them from invasion, and root them in the affection of the people." It is clear that under no circumstances will the courts inquire into the motives which govern members of the legislature in the enactment of a law, and that the parties complaining, to have any standing in court, must have suffered an injury apart from that experienced by the general community.24

While, on principles peculiar to itself, the English parliament has power to punish for contempt, the house of representatives of the United States has not.25 Accordingly, where the house of repre

22 Coffin v. Coffin, 4 Mass. 1; State v. Burnham, 9 N. H. 34; Perkins v. Mitchell, 31 Barb. 461-468. An article as to the exemption of members of the legislature from service of civil process, with a special reference to the recent case of Rhodes v. Walsh, 55 Minn. 542, 57 N. W. 212, in which it was held that under article 4 of section 8 of the constitution of the state of Minnesota, providing as follows. "The members of each house shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during the session of their respective houses, and in going to and returning from the same," a member of the legislature is not privileged from the service upon him of a summons in a civil action during a session of said legislature, will be found in 10 N. Y. Law J. 1106. See briefs of counsel in Rhodes v. Walsh, supra. Further, see Cooley, Const. Lim. (6th Ed.) 160, and cases cited.

23 (1839) 9 Adol. & E. 1.

24 Wright v. Defrees, 8 Ind. 298; Bish. Noncont. Law, § 777, note 2, collecting cases.

25 A court commissioner has no power to punish for contempt, In re Mason, 43 Fed. 510; nor a common council, Whitcomb's Case, 120 Mass. 118. Emery's Case, 107 Mass. 172; Burnham v. Morrissey, 14 Gray (Mass.) 226; Thompson's Case, 122 Mass. 428. As to judicial power over legislature, In re Pacific Ry. Commission, 32 Fed. 241; In re Investigating Commission, 16 R. I. 751, 753, 11 Atl. 429.

sentatives directed a committee to examine into the history and character of a real-estate pool in connection with the affairs of J. Cooke & Co., and its sergeant at arms, in accordance with instructions of the house, imprisoned the plaintiff for contempt as a witness, the order of the house afforded the sergeant at arms no protection in an action by the plaintiff for false imprisonment. The members of congress, however, were exempt from liability, because of the provision of the constitution that for any speech or debate in either house the members shall not be questioned in any other place. 26

SAME CONDUCT OF JUDICIAL OFFICERS.

39. No judge can be held personally liable to any one, in a civil action, for conduct, even if malicious and corrupt, occurring in the exercise of jurisdiction clearly conferred.

EXCEPTION-The exemption does not apply to conduct occurring in the performance of ministerial, as disguished from judicial, duty, and perhaps not to quasi judicial officers, when they act maliciously and corruptly. The duty is ministerial when the law governing its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion.

"Jurisdiction" Defined.

Miller, J., in Cooper v. Reynolds, said: "It is as easy to give a general and comprehensive definition of the word 'jurisdiction' as it is difficult to determine, in special cases, the precise conditions on which the right to exercise it depends. This right has reference to

26 Kilbourn v. Thompson, 103 U. S. 168, overruling and rejecting some of the reasoning in Anderson v. Dunn, 6 Wheat. 204. Contra, Canfield v. Gresham, 82 Tex. 10, 17 S. W. 390. Compare Burdett v. Abbott, 14 East, 1; Thompson's Case, 8 How. St. Tr. 1; Beaumont v. Barrett, 1 Moore, P. C. 59. 27 10 Wall. 308-316; 19 Cent. Law J. 102-104; 25 Cent. Law J. 435.

the power of the court over the parties, over the subject-matter, over the res or property in contest, and to the authority of the court to render the judgment or decree which it assumes to make. By 'jurisdiction over subject-matter' is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. Jurisdiction of the person is obtained by the service of process, or by the voluntary appearance of the party in the progress of the cause. Jurisdiction of the res is obtained by a seizure under process of the court, whereby it is held to abide such order as the court may make concerning it. The power to render the decree or judgment which the court may undertake to make in the particular cause depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause."

Conduct within Jurisdiction.

The exemption of judicial officers from liability in tort for conduct within jurisdiction clearly conferred is well illustrated in Stewart v. Cooley.28 Here a judge was charged with having conspired with the clerk of his court, willfully and maliciously, to cause the plaintiff to be charged with, and arrested and imprisoned for, the crime of perjury. A demurrer to complaint was sustained,

28 23 Minn. 347. And see Fray v. Blackburn, 3 Best & S. 576; Kemp v. Neville, 10 C. B. (N. S.) 523; Floyd v. Barker, 12 Coke, 23-25; Turpen v. Booth, 56 Cal. 65, 69; Weaver v. Devendorf, 3 Denio, 114, 120; Reid v. Hood, 2 Nott & McC. (S. C.) 168; Stone v. Graves, 8 Mo. 148. The classification of officers into judicial, legislative, and executive is not strictly accurate, however convenient for present purposes. However distinct the departments of government are maintained (Langenberg v. Decker, 131 Ind. 478), an officer is apparently a representative of more than one department, and of no one department distinctly or exclusively (Cooley, Torts, c. 13, "Classification"). Mr. Brice (1 Brice, Am. Com., 3d Ed., c. 21, p. 215) says that this separation of the legislative, executive, and judicial departments is "the fundamental characteristic of the American national government. * In Europe, as well as in America, men are accustomed to talk of legislation and administration as distinct. But a consideration of their nature will show that it is not easy to separate these two departments in theory by analysis, and still less easy to keep them apart in practice."

30

32

and the judge was held to be exempt. Even if, in the exercise of such judicial functions, the judge acts, not only wrongfully, but with a corrupt motive, he is not civilly liable.29 Thus, it has been held that an action will not lie against a justice of the peace for issuing a writ in favor of a third person upon a false claim against the plaintiff, and secreting and destroying the writ after service thereof, and refusing to enter it, or to allow the defendant therein his costs.3 Quasi judicial public officers, as township trustees, arbitrators, etc.,3 are not liable in damages for erroneous interpretation or application of the law. If they act fraudulently or maliciously, the exemption has been held to end. Thus, members of a school board may be held liable for maliciously dismissing a teacher, but not for such acts as the expulsion of children in good faith.34 But municipal officers, acting in a quasi judicial capacity in determining the lowest legal bidder, are not responsible to an injured bidder, however wrong their decision, or malicious the motive which produced it.35 An attorney for a party to an action referred by the court is liable to the adverse party for conspiracy with one of the arbitrators to ob

29 Irion v. Lewis, 56 Ala. 190; Kress v. State, 65 Ind. 106. But see Knell v. Briscoe, 49 Md. 414; Hitch v. Lambright, 66 Ga. 228; Garfield v. Douglass, 22 Ill. 100.

30 Raymond v. Bolles, 11 Cush. 315, citing Elder v. Bemis, 2 Metc. 599; Pratt v. Gardner, 2 Cush. 63; Chickering v. Robinson, 3 Cush. 543. And see Weaver v. Devendorf, 3 Denio, 117; Stone v. Graves, 8 Mo. 148; Morrison v. McDonald, 21 Me. 550; State v. Copp, 15 N. H. 212; Taylor v. Doremus, 16 N. J. Law, 473; Morton v. Crane, 39 Mich. 520; Lenox v. Grant, 8 Mo. 254; Way v. Townsend, 4 Allen, 114; Bailey v. Wiggins, 5 Har. (Del.) 462; Gordon v. Farrar, 2 Doug. (Mich.) 411; Strickfaden v. Zipprick, 49 Ill. 286; Gregory v. Brooks, 37 Conn. 365.

32 Stevenson v. Watson, 4 C. P. Div. 148; Pappa v. Rose, L. R. 7 C. P. 525; Jones v. Brown, 54 Iowa, 74, 6 N. W. 140. And see Gould v. Hammond, 1 McAll. (U. S. Cir. Ct.) 235; Muscatine, etc., Ry. v. Horton, 38 Iowa, 33; McDaniel v. Tebbetts, 60 N. H. 555; Wall v. Trumbull, 16 Mich. 228.

33 State v. Hastings, 37 Neb. 96, 55 N. W. 774.

34 Burton v. Fulton, 49 Pa. St. 151; Donahoe v. Richards, 38 Me. 379; Stewart v. Southard, 17 Ohio, 402; Billings v. Lafferty, 31 Ill. 318; Reed v. Conway, 20 Mo. 22.

35 East River Gaslight Co. v. Donnelly, 93 N. Y. 557, distinguished; People v. Gleason, 121 N. Y. 631, 25 N. E. 4. approved; Erving v. City of New York, 131 N. Y. 133, 29 N. E. 1101. Cf. Ward v. Freeman, 2 Ir. Com. Law, 460.

tain an unjust award in favor of his client, although the arbitrator is not liable.36

Judicial Officers de Jure or de Facto.

To entitle a person to claim exemption as a judicial officer, it is not necessary that he should be such officer de jure. It is sufficient if he be de facto. The power to appoint such an officer, however, may not be delegated by the legislature; for example, to attor neys of record by means of stipulation.37 Even a judge properly appointed, as to matter in which he is personally interested, may be disqualified so that he can have no jurisdiction, and his acts will be void. Thus, the acts of a judge of probate in the settlement of an estate in which he is interested as an executor are void.38 The exemption applies, when the act is within the jurisdiction, alike to the highest judges in the land,39 and to the most veritable Dogberry. Members of the naval and military court-martials are not liable for their conduct while acting in such capacity. It appears that coroners and mayors of cities + are judges, in this sense.

42

41

36 Hoosac Tunnel Co. v. O'Brien, 137 Mass. 424. Nor a coroner: Thomas V. Churton, 2 Best & S. 475.

37 Van Slyke v. Trempealeau, etc., Co., 33 Wis. 390, 392; Attorney General v. McDonald, 3 Wis. 703, 705; Gough v. Dorsey, 27 Wis. 119; Cohen v. Hoff, 3 Brev. (S. C.) 500; In re Burke, 76 Wis. 357, 45 N. W. 24; Baker v. State, 80 Wis. 416, 50 N. W. 518.

38 Bedell v. Bailey, 58 N. H. 63; Hall v. Thayer, 105 Mass. 219; Stockwell v. Township, 22 Mich. 341. But see In re Van Wagonen's Will, 69 Hun, 365, 23 N. Y. Supp. 636.

39 Bradley v. Fisher, 13 Wall. 335; Dicas v. Lord Brougham, 6 Car. & P. 249; Fray v. Blackburn, 3 Best & S. 576; Lange v. Benedict, 73 N. Y. 12; Londegan v. Hammer, 30 Iowa, 508; Booth v. Kurrus, 55 N. J. Law, 370, 26 Atl. 1013; Banister v. Wakeman, 64 Vt. 203, 23 Atl. 585 (collecting cases).

40 White v. Morse, 139 Mass. 162, 29 N. E. 539; In re Cooper, 32 Vt. 253; Weaver v. Devendorf, 3 Denio, 117 (collecting cases); Marks v. Sullivan, 9 Utah, 12, 33 Pac. 224. Judge municipal court: Rudd v. Darling, 64 Vt. 456, 25 Atl. 479. City recorder: Brunner v. Downs, 63 Hun, 626, 17 N. Y. Supp.

633.

41 Dawkins v. Lord Rokeby, L. R. 7 Ind. App. 744; Dawkins v. Prince Edward of Saxe-Weimar, L. R. 1 Q. B. Div. 499.

42 Garnett v. Ferrand, 6 Barn. & C. 619.

43 Boutte v. Emmer, 43 La. Ann. 980, 9 South. 921; State v. Wolever, 127 Ind. 306, 318, 26 N. E. 762.