solely to the public as such. "The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual and that he has suffered a special and peculiar injury by reason of its nonperformance." 48 Hence no action lies by a mortgagee for the omission of a county treasurer to make taxes assessed against the mortgagor out of personal property, though the indirect effect is that the burdens upon the mortgaged land are increased and the value of the security lessened. Nor is the failure properly to list property for taxation a wrong to an individual whose own assessments are not shown to be made thereby a larger proportion of the aggregate taxable property than they should have been.45

Assuming, however, that what would ordinarily be regarded as an actionable wrong has occurred, special immunity may be extended from motives of public policy. Freedom in the exercise of legislative functions being essential, members of Congress are not to be questioned elsewhere "for any speech or debate in either House"; and a similar provision protecting the local Legislature is generally found in the state Constitutions.*7 It was for this reason that, although the sergeant at arms in the Kilbourn Case, already referred to, was held responsible, the members of the investigating committee, who had reported to the House the witness' delinquency and voted in favor of the resolution. under which he was committed, were exonerated.1

48

48 Gage v. Springer, 211 Ill. 200, 204, 71 N. E. 860, 103 Am. St. Rep. 191, per Scott, J.

44 State ex rel. Travelers' Ins. Co. v. Harris, 89 Ind. 363, 46 Am. Rep. 169.

45 Moss v. Cummings, 44 Mich. 359, 6 N. W. 843. To the same effect, Harrington v. Ward, 9 Mass. 251; Kahl v. Love, 37 N. J. Law, 5; Houseman v. Girard Mut. Bldg. & Loan Ass'n, 81 Pa. 256. The principle in its general aspect has already been discussed. See supra, p. 35 et seq.

46 Const. U. S. art. 1, § 6.

47 See Const. N. Y. art. 3, § 12.

48 Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377. This de

49

Another exemption exists where it is shown that the public officer has failed to perform or has improperly exercised functions which are judicial in their nature. This is not confined to judges, but includes all cases where the officer is called upon to use discretion and judgment in the exercise or withholding of his powers "according to his own view of what is necessary and proper." Opposed thereto are ministerial duties, so called, required to be performed by the officer under given conditions and in a prescribed manner, "without regard to the exercise of his own judgment upon the propriety of the act being done." 50 Now, in determining official responsibility, it is obvious that an important distinction exists between these two classes. Accountability for the exercise of discretion is destructive of the discretionary power. Impeachment and indictment may follow misconduct or corruption. But, broadly speaking, the abuse of judicial power furnishes no private right of action, a principle which is supported by the strongest considerations of public policy. No reason exists, however, for exemption in the case of ministerial functions, since the officer's path is marked and defined.

Emphasis must be placed upon the nature of the duty rather than upon the title of the office, since the same individual may perform both judicial and ministerial functions. "Duties which are purely ministerial in their nature are

fense becomes important in actions for defamation, and it will be there considered. See infra, p. 326.

49 Wilson v. City of New York, 1 Denio (N. Y.) 595, 599, 43 Am. Dec. 719, per Beardsley, J.

50 Flournoy v. City of Jeffersonville, 17 Ind. 169, 174, 79 Am. Dec. 468, per Perkins, J. "The duty is ministerial when the law exacting its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specific duty arising from fixed and designated facts, is a ministerial act." Grider v. Tally, 77 Ala. 422, 425, 54 Am. Rep. 63, per Clapton, J.

51 See Mills v. City of Brooklyn, 32 N. Y. 489. Thus members of a board of aldermen are not responsible to the mayor for passing an ordinance depriving him of his fees and emoluments. Jones v. Loving, 55 Miss. 109, 30 Am. Rep. 508.

sometimes cast upon officers whose chief functions are judicial," 52 and vice versa. Thus it has been held that the issuance of a liquor license by a probate judge is ministerial, where the statute requires him to act upon the applicant's compliance with certain requirements. So, too, is the issuance of an execution 54 and the filing of papers on appeal by a justice of the peace.55 Another illustration appears in the habeas corpus acts, which generally require the writ to be issued whenever a prima facie case of unlawful confinement is made out." 56

53

JUDICIAL AND DISCRETIONARY ACTS

41. (I) Judicial officers.

(a) For acts done in the exercise of jurisdiction, the judicial officer is not accountable.

(b) For acts done wholly without jurisdiction, the judicial officer is accountable.

(c) For acts done in excess of jurisdiction, the justice of a superior court is not liable, even though his motives were malicious and corrupt; but by the weight of authority, where jurisdiction is exceeded, the justice of an inferior court will be responsible, though some decisions have made malice and corrupt motive the test.

(II) Quasi judicial officers.

Similar principles govern the liability of quasi judicial officers.

52 Mills v. City of Brooklyn, 32 N. Y. 489, 497, per Denio, C. J. "When the law assigns to a judicial officer the performance of ministerial acts, he is as responsible for the manner in which he performs them, or for neglecting or refusing to perform them, as if no judicial functions were intrusted to him." Grider v. Tally, 77 Ala. 422, 424, 54 Am. Rep. 65, per Clopton, J. 53 Grider v. Tally, supra.

54 See Gaylor v. Hunt, 23 Ohio St. 255.

55 Peters v. Land, 5 Blackf. (Ind.) 12; Brooks v. St. John, 25 Hun (N. Y.) 540.

56 Code Civ. Proc. N. Y. § 2020. Cf. Yates v. Lansing, 5 Johns. (N. Y.) 282.

(A) For Acts Done Within Jurisdiction

"It is a principle lying at the foundation of all well-ordered jurisprudence that every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law, and deciding upon the rights of others, should act upon his own free, unbiased convictions, uninfluenced by any apprehension of consequences." 57 "Nor can the exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed." 58 Were it otherwise, "the losing party may always aver that the judge has acted partially or corruptly, and may offer testimony of bystanders or others to prove it; and these proofs are addressed to the court and jury before whom the judge is called upon to defend himself, and the result is made to depend, not upon his original conviction-the conclusion of his own mind, in the decision of the original case-as by the theory of jurisprudence it ought to do, but upon the conclusions of other minds, under the influence of other and different considerations." 59 The rule is therefore based upon the highest considerations of public policy " and is applicable alike to the superior 1 and the inferior judge.2

60

57 Pratt v. Gardner, 2 Cush. (Mass.) 63, 68, 48 Am. Dec. 652, per Shaw, C. J.

58 BRADLEY v. FISHER, 13 Wall. 335, 347, 20 L. Ed. 646, Chapin Cas. Torts, 65, per Field, J.

59 Pratt v. Gardner, 2 Cush. (Mass.) 63, 69, 48 Am. Dec. 652, per Shaw, C. J.

60 The following reasons have been given by Judge Cooley (Torts [3d Ed.] p. 793): (1) The necessary result of the liability would be to occupy the judge's time and mind with the defense of his own interests, when he should be giving them up wholly to his public duties. (2) To put him on his defense necessarily lowers the public estimation of his office. (3) Civil responsibility might invite him to consult public opinion and prejudices, when he should be above them. (4) Each case would be opened to endless controversy, litigation would be multiplied, and an increase in the judicial force necessitated. (5) A prosecution at the instance of the state is much more effectual than a private suit.

61 Yates v. Lansing, 5 Johns. (N. Y.) 282; Webb v. Fisher, 109 62 See note 62 on following page.

(B) For Acts Wholly Without Jurisdiction

63

Where there is a want of jurisdiction, it is the same as though there were no court." Under such conditions "any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible." Thus, should a justice holding court for the trial of civil actions order the head of a bystander to be stricken off, and be obeyed, or a probate judge proceed to try parties for public offenses, there could be no question as to the liability incurred.65

It has been 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 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." 66 This presupposes,

Tenn. 701, 72 S. W. 110, 60 L. R. A. 791, 97 Am. St. Rep. 863; Rudd v. Darling, 64 Vt. 456, 25 Atl. 479; Fray v. Blackburn, 3 Best & S. 576; Anderson v. Gorrie (1895) L. R. 1 Q. B. D. 668.

62 Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477, 14 L. R. A. 138; White v. Morse, 139 Mass. 162, 29 N. E. 539; Irion v. Lewis, 56 Ala. 190; Taylor v. Doremus, 16 N. J. Law, 473; Stewart v. Cooley, 23 Minn. 347, 23 Am. Rep. 690; Jordan v. Hanson, 49 N. H. 199, 6 Am. Rep. 508; Basten v. Carew, 3 Barn. & C. 649. In a few states, however, a contrary view has been intimated, where malice or corruption appears. Hitch v. Lambright, 66 Ga. 228; Gault v. Wallace, 53 Ga. 675; Knell v. Briscoe, 49 Md. 414; Hollon v. Lilly, 100 Ky. 553, 38 S. W. 878. But this is contrary to the established rule.

63 See Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200.

64 BRADLEY v. FISHER, 13 Wall. 335, 352, 20 L. Ed. 646, Chapin Cas. Torts, 65, per Field, J.

65 Lange v. Benedict, 73 N. Y. 12, 26, 29 Am. Rep. 80; BRADLEY v. FISHER, supra.

66 Cooper v. Reynolds, 10 Wall. 308, 316, 19 L. Ed. 931, per Miller, J.

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