CHAPTER IX.

LIABILITIES OF PUBLIC OFFICERS.

65. Protection of individual rights.-In order that government may not be irresponsible, it is desirable that in so far as possible the individual citizen shall have recourse against an officer for a failure to perform duties owing to the individual citizen and that the public shall have recourse for duties owing to the public. The liability for a failure to perform the latter class of duties can be enforced only in an action by the state. The leading case on this point is that of South et al. v. State of Maryland. Here Potle, the real plaintiff in the original action, brought suit on the official bond of South alleging that he, South, as sheriff of Washington County, refused to give him, the said Potle, protection, and that by reason of South's failure to perform his official duty in keeping the peace of the state of Maryland, plaintiff was compelled to give to certain persons, who threatened his life, the sum of $2,500. The court held that this was a "public duty for neglect of which he is amenable to the public, and punishable by indictment only."

66. Liability of judicial officers.-The class of officers against whom the rule of individual liability for their acts is most relaxed is that of judicial offi

918 How. 396 (U. S.).

cers. As regards judges there is no civil liability for their acts, provided they act within the limits of their jurisdiction. In Randall v. Brigham,10 the Supreme Court of the United States held that the removal of an attorney by the court was a judicial act, so decided in Ex parte Secombe,11 and that "it is a general principle, applicable to all judicial officers, that they are not liable to a civil action for a judicial act done within their jurisdiction. This exemption from civil action is for the sake of the public, and not merely for the protection of the judge. And it has been maintained by a uniform course of decisions in England for centuries and in this country ever since its settlement." The plaintiff had contended that "each individual of society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws," and based this contention upon Article X of the constitution of Massachusetts. He maintained that the terms "life, liberty, and property" include every right known to the law, and that "property includes those estates which one may acquire in professions, which are often the source of the highest emoluments and honor"; further, that "an attorney and counselor being by the solemn judicial act of the court clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors and to argue causes is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the

10 7 Wall. 523 (U. S.). 11 19 How. 9 (U. S.).

legislature. It is a right of which he can only be deprived by the judgment of the court for moral or professional delinquency." This language was quoted from the opinion of the Supreme Court in Ex parte Garland.12 But in that case the removal was by an act of Congress and not by the court. The court admits that Mr. Garland, an attorney, could be removed from his office by the court for "moral or professional delinquency," and the undisputed facts showed "moral and professional delinquency" on the part of Randall in the former case. As to the civil liability of a judge for acts that are not malicious and not in excess of his jurisdiction, the question is no longer an open one; it has been decided that there is none and there is apparently no likelihood that there will be any change in the rule.

67. Liability for acts in excess of jurisdiction.— Whether or not a judge is liable civilly for acts in excess of jurisdiction depends to some extent upon the character of court over which he is presiding. If the court is one of general jurisdiction the authorities are pretty generally of the opinion that he is not civilly liable for his acts.13 Thus in Bradley v. Fisher1 the court says: "Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. In this country the judges of the superior courts of record.

12 4 Wall. 333 (U. S.). 13 7 Wall. 523 (U. S.). 14 13 Wall. 335 (U. S.).

are only responsible to the people, or the authorities constituted by the people, from whom they receive their commissions, for the manner in which they discharge the great trusts of their office.

"If in the exercise of the powers with which they are clothed as ministers of justice, they act with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by impeachment and suspended or removed from office. In some states they may be suspended or removed without impeachment, by a vote of the two houses of the legislature." In Randall v. Brigham, supra, the court expresses a doubt as to the exemption of judges for acts in excess of jurisdiction where the judge acts maliciously or corruptly. To quote the exact language of the court: "They are not liable to civil actions for their judicial acts even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously or corruptly."

There is also some conflict as to whether the exemption from civil liability accorded to judges of courts of general jurisdiction for acts in excess of jurisdiction extends also to judges of courts of inferior jurisdiction. Though the tendency at present is in this direction, the weight of authority is still in favor of the established rule that judges of inferior courts are not exempt from civil liability for acts in excess of their jurisdiction. In Truesdell v. Combs15 it was held that where a justice of the peace without authority of law issues a process for arrest he will be guilty

15 33 Ohio St. 186.

of trespass, and honesty of purpose is no defense; or where a justice with full knowledge of the facts issues a warrant for arrest in case of a crime committed in another state, he is liable;16 or where a magistrate acts officiously in issuing a warrant for arrest without a complaint on oath or personal knowledge that a complaint has been made, is liable;1 or where a justice of the peace instigates the execution of a state warrant for felony nine months after the warrant has issued, the party who procured it having made no recent application to have it executed, the justice, being apparently actuated by malice, was held liable;18 also where a justice of the peace caused a suit to be instituted upon a promissory note of which he was the owner and made the summons returnable before himself, rendered judgment, and issued a writ of execution, and caused defendant's arrest and commitment to jail, he was held liable;19 and it was held in Fisher v. Deans20 that a justice who commits a person to jail for the purpose of extorting money from him is liable for false imprisonment; but, on the contrary, it was held in Austin v. Vrooman21 that a justice of the peace is not personally liable in damages for erroneously deciding in good faith that he has jurisdiction to try a defendant who has offered bail for appearance before the grand jury and demanded a trial by jury after indictment,

16 Miller v. Grice, 2 Rich. L. 27 (S. C.).

17 Flack v. Harrington, Breese 213, 12 Am. Dec. 170 (Ill.). 18 Garvin v. Blocker, 2 Brev. 157 (S. C.).

19 Dyer v. Smith, 12 Conn. 384.

20 107 Mass. 118.

21 28 N. E. 477 (N. Y.).