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where the justice had jurisdiction of the offense and of the defendant except for such offer and demand. If, furthermore, the want of jurisdiction results from facts not within the knowledge of the magistrate, so that he did not know or had not the means of knowing that he was without jurisdiction, he is not liable.22 Courts of general jurisdiction are presumed to have jurisdiction until the contrary is shown. 23

68. Distinction between excess and absence of jurisdiction. The authorities recognize a distinction between cases where there is an entire want of jurisdiction over the subject-matter and where jurisdiction is possessed for some purposes but is exceeded by extending it to cover more than was intended by statute. In the former case the whole proceeding is coram non judice (before one not a judge), and the judge is liable.24 An example of this would be where a judge not misinformed as to the facts upon which jurisdiction depends were to issue a summons to be served outside his territorial jurisdiction and then punish for contempt the person who disregarded it. In such a case he would be liable to the person so punished.25 But if the magistrate has no jurisdiction by reason of the existence of facts which he cannot be supposed to know, but which are peculiarly within the knowledge of the party aggrieved, the former is not liable if he has no actual knowledge of such facts.26

22 Calder v. Halket, 3 Moore P. C. 28 (Eng.).
23 Piper v. Pearson, 2 Gray 120 (Mass.).
24 Marshalsea's Case, 10 Coke 68b (Eng.).
25 Houlden v. Smith, 14 Q. B. 841 (Eng.).
26 Pike v. Carter, 3 Bing. 78 (Eng.).

This distinction between an entire lack of jurisdiction and excess of jurisdiction is well brought out by the Supreme Court of the United States in Bradley v. Fisher,27 where the court, speaking through Justice Field, 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. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subjectmatter, any authority exercised is an usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is vested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain dis27 13 Wall. 335 (U. S.).

trict, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil actions for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed, some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reason.

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69. Liability of judicial officers to the state. But the fact that judicial officers may be exempt from civil liability to those injured by their malicious, corrupt, oppressive acts, and acts in excess of their jurisdiction, does not mean that they are exempt from all liability whatsoever. The state whose servant the judge is has a right to call him to account for the improper exercise of the power he possesses or an attempt to exercise power which he does not lawfully possess. The ordinary remedy in such a case is impeachment.28 The difficulty of applying this

28 Pratt v. Gardner, 2 Cush. 63 (Mass.); Floyd v. Barker, 12 Coke 23 (Eng.).

remedy has led to the advocacy, and in some states the adoption, of another method, and as this is one of far-reaching consequences in the administration of justice, and is at present a live issue, we feel warranted in discussing it.

70. Recall of judges.-Very recently, certain reformers have devised the plan of calling a judge to account for his official acts by forcing him to submit to a vote of the electors the question of whether or not he may be allowed to serve out the remainder of his term, and, unless he receives a plurality of the votes cast at the election called for the purpose, he is removed. This was made a national question by the refusal of President Taft to sign the bill admitting Arizona into the Union until the provisions for the recall of judges were eliminated from their constitution. It tends to render tenure too dependent upon the whims of the momentary majority, it decreases the efficiency of officers and makes it impossible to induce men best fitted for judicial position to accept office. It is unfair to the judge, for either one of two things will happen: the fitness or unfitness of the judge will be determined upon the basis of a single decision, or upon his whole career. The former is manifestly unfair and the latter is often impracticable, requiring more time for investigation than the voters can give. It injects too much politics into the judiciary, of which we are already suffering from an overdose. It sweeps away the protection which the minority has against hasty, tyrannical action by the majority and this protection is one of the tests of the advance in civilization which a people

has made. It would exercise a mischievous influence upon judicial procedure, as the judge would try his case in the newspapers and according to popular desires instead of in accordance with rules of procedure which the experience of mankind has shown to be useful in the administration of justice. It is unnecessary, because in cases of real as distinguished from fancied corruption or unfitness such as to warrant removal, impeachment is or can easily be made a sufficient remedy.

71. Liability of officers other than judicial.—Let us take first quasi-judicial or administrative officers. As to these, the general rule is that they decide questions as to the extent of their jurisdiction at their peril and are liable for injuries resulting from acts in excess of their jurisdiction. The decision of sanitary officers that a thing is a nuisance is as a rule considered a ministerial and not a discretionary act, and liability results from an erroneous determination in case of excess of jurisdiction. As said by the New York Court of Appeals in People v. Board of Health of the City of Yonkers:29

"If the decisions of these boards were final and conclusive even after a hearing, the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated, and generally unfitted to discharge grave judicial functions. Boards of health cannot, as to any existing state of facts, by their determination make that a nuisance which is not in fact a nuisance. They have no jurisdiction to make any order abating an alleged

29 140 N. Y. 1.

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