§ 129. Civil liability of heads of departments. In Spalding v. Vilas (28) the supreme court of the United States held that the foregoing rules applicable to judges of courts of superior jurisdiction applied to a large extent also "to official communications made by heads of executive departments when engaged in the discharge of duties imposed upon them by law."

§ 130. Civil liability of ministerial officers. In the case of Tracy v. Swartwout (29) a collector of customs had refused to allow the entry of certain goods without the payment of a duty, which the supreme court of the United States decided was not the correct duty but was higher than the law allowed, and, as a result of the detention of the goods for the nonpayment of the higher rate, the goods were damaged and action brought against the collector. It was held that the collector of the customs was a ministerial officer and the court said: "It would be a most dangerous principle to establish that the acts of a ministerial officer, when done in good faith, however injurious to private rights and unsupported by law, should afford no ground for legal redress." Accordingly the court allowed the plaintiff to recover and said that, as the government in such a case was bound to indemnify the officer, no hardship could result.

§ 131. Ministerial officers acting under process valid on its face. In the case of Erskine v. Hohnbach (30) a collector of internal revenue was sued in trespass for the conversion of certain property which he had seized in

the enforcement of an assessment chargeable against the plaintiff, duly made by the assessor of the district and certified to him with an order directing its collection. The court held that the defendant was in the same position as a sheriff acting under an execution regular on its face (see the article on Torts, §§ 93-97, in Volume II of this work), and said: "Whatever may have been the conflict at one time, in the adjudged cases, as to the extent of protection afforded to ministerial officers acting in obedience to process or orders issued to them by tribunals invested by law with authority to pass upon and determine particular facts and render judgment thereon, it is well settled now that if the officer or tribunal possess jurisdiction over the subject matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to the ministerial officer is regular on its face, showing no departure from the law or defect of jurisdiction over the person or property affected, then, in such cases, the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious errors have been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process issued."

§ 132. Liability for acts of subordinates. Ordinarily an officer is not liable for the acts of his subordinates. Thus, in Robertson v. Sichel (31), where action was

(31) 127 U. S. 507.

brought against the collector of customs for the loss of a trunk by fire, claimed to be due to the negligence of the subordinate officers of the customs, the court considered the rule to be well settled that he was not liable and said that "competent persons could not be found to fill positions of the kind, if they knew that they would be held liable for all the torts and wrongs committed by a large body of subordinates in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person."

§ 133. Liability on official bonds. In the case of People v. Schuyler (32) the question was whether the sheriff and his sureties were liable on his official bond for a trespass committed in taking the goods of a wrong party in an attempt to execute regular process. The court held that while for a purely personal wrong of the sheriff there would be no liability on the bond, yet color of authority would be sufficient to establish liability, and it would not be necessary that there should have been a wrongful action with regard to some act directly commanded by the process. But the sheriff and his sureties are not liable for the breach of a public duty not ministerial in its nature, such as the keeping of the peace (33), and, although the giving of a bond increases the liability of an accounting officer, it does not render him absolutely liable, as he is excused from turning over the funds received by him at least in the case where they have been forcibly taken from him by the public enemy (34).

EXTRAORDINRY REMEDIES

BY

PERCY BORDWELL,

B. L. (University of California)
Ph. D. (Columbia University)
LL. B., LL.M. (Columbia University)

Professor of Law, University of Missouri.

EXTRAORDINARY REMEDIES.

§ 1. Relation of subject to administrative law. For a discussion of the larger topic of Administrative Law, of which Extraordinary Remedies forms a part, see the article on Public Officers, §§ 1-3. elsewhere in this volume.

SECTION 1. MANDAMUS.

§ 2. Origin of remedy. Mandamus is a product of the court of king's bench of England. In that court, by a well settled legal fiction, the king was supposed to sit in person, and, by right of his prerogative, issue the extraordinary legal remedies, among which the mandamus was one of the most important, where the ordinary legal remedies were so inadequate as to threaten a failure of justice. The supposed presence of the king caused these remedies to be called prerogative writs. As the legal fiction on which the name was based is no longer tenable in this country, the term is now inapt and seldom used. Nevertheless the essential character of the remedy has remained the same. It is still an extraordinary remedy, not issuable unless the ordinary legal remedies are inadequate, and is generally subject to a discretion on the part of the judge not to be found in the case of the ordinary legal remedies.

§ 3. Object. The object of mandamus is to compel the performance of a clear, public, legal duty, owed by some person in official or quasi official position. The duty must be one arising from law and not from contract. Thus, in Bailey v. Oviatt (1) a committee had been appointed from the Vermont legislature to investigate charges that the railroads of the state had improperly influenced legislation, and the committee had employed Oviatt to take and report the testimony produced before them. He had taken down the entire testimony in shorthand, but had failed to transcribe a portion of

(1) 46 Vt. 627.