nuisance unless there be in fact a nuisance. It is the actual existence of a nuisance which gives them jurisdiction to act. It may be said that if the determination of a board of health as to a nuisance be not final and conclusive, then the members of the board, and all persons acting under their authority in abating the alleged nuisance, act at their peril; and so they do, and no other view of the law would give adequate protection to private rights. They should not destroy property as a nuisance unless they know it to be such, and, if there be doubt whether it be a nuisance or not, the board should proceed by action to restrain or abate the nuisance, and thus have the protection of a judgment for what it may do."

So in Welch v. Stowell,30 city officers were held liable for destroying a building used as a house of ill-fame. The general principle underlying this decision is that where merely the use to which a thing is put, and not the existence of the thing itself, constitutes the nuisance, the abatement of the nuisance by the destruction of property is unwarranted, since the restraining of the use, which could be done by injunction, rather than by the destruction of property which is capable of a harmless, legitimate use, meets all the requirements of the case. It is the same principle which would render officers liable for the destruction of a barn near a spring because cattle were kept in it and the cattle polluted the water of the spring.

72. Conclusiveness of acts of quasi-judicial boards.-As to the conclusiveness of the acts of a quasi-judicial board the court says in City of Salem

30 2 Dougl. 332 (Mich.).

v. Eastern Railway Co.:31 "The record of proceedings of the board of health is competent evidence in the present case for some purposes. It proves the fact that such proceedings were had, which is a necessary preliminary step. So far as the proceedings were within and in accordance with the authority and duties of the board, they are entitled to the presumption that whatever was done was rightly done; and may be held as prima facie evidence of the existence of a nuisance which warranted the board of health in taking action and incurring expense for its removal. But it is not evidence that the nuisance was caused by the defendant, in the manner stated, or in any manner; and all the facts upon which it is sought to charge the defendant with liability are open to be tried and determined by the proofs in the case.' And in Mygatt v. Washburn,32 where the plaintiff's property was placed on the assessment roll after July 1, when the roll was required by statute to be complete on that date, the assessors so acting were held liable for the damages resulting to plaintiff from their act. The court says:

"The plaintiff, therefore, was not subject to the jurisdiction of the assessors. In placing his name on the roll, and adding thereto an amount as the value of his personal property, they acted without authority. As the board of supervisors was obliged by law to annex a tax to the name of every person assessed upon the roll, and to issue a warrant for the collection of the tax, the unauthorized act of the assessors was

31 98 Mass. 431.

32 15 N. Y. 316; also see Potts et al. v. Breen et al., 167 Ill. 67, LEADING ILLUSTRATIVE CASES.

the means by which the property of the plaintiff was procured to be sold. They are, therefore, responsible to the plaintiff for the damages which ensued. It was not, in the view of the law, the case of an error of judgment. It is a salutary rule, though in some cases, and perhaps in the one before us, it may operate harshly, that a subordinate officer is bound to see that he acts within the scope of the authority legally committed to him. The principle is too well settled to require a reference to authority; but its application to the case of assessment of a person not liable to taxation in the town or district in which the assessment is made has often been declared in the courts of this and other states."

73. Manner of acting as affecting liability.—It not infrequently happens that officers will be liable in case of summary action, as in the abatement of a nuisance, where in the same case they would not have been liable had an opportunity for a hearing been given. This is particularly true where the statute provides for notice and hearing. Where such opportunity has been given, the officers are then considered. as having so acted that their decisions are in the nature of judicial determinations and they are not liable for error, even though their error may have resulted in loss to those affected by the decision. All that is necessary is that they comply with the statute and act in good faith. Thus, in the case of Lee v. Huff,33 it was held that a county examiner was not liable for revoking the license of a teacher, after a hearing. The court says: "When under this statute a teacher has been cited to appear and answer 33 33 S. W. 846 (Ark.).

charges preferred against him, and when, after a fair investigation, the examiner honestly concludes that the teacher has been guilty of such conduct as, under the statute, justifies a revocation of his license, he is not liable for damages, whether his decision be correct or not. He must follow the statute under which he receives authority, but whether the evidence is sufficient to make out a proper case under the statute is for him to determine. The law reposes this discretion in him, and will protect him when he acts honestly and in the faithful attempt to discharge his duties." It quotes with approval the language of Judge Appleton of the Supreme Court of Maine, in Donahoe v. Richards:34 "The general principle is established by an almost uniform course of decision that a public officer, when acting in good faith, is never liable for an erroneous judgment in a matter submitted to his determination. All he undertakes to do is to discharge his duty to the best of his ability and with integrity. That he may never err in his judgment, or that he may never decide differently from what some other person may think would be just, is no part of his official undertaking."

74. Liability for ministerial acts.-In case of ministerial acts there is the highest degree of liability. For acts of this character, provided the duty is not one owed solely to the public, the officer is liable for malfeasance, misfeasance, and nonfeasance, where his act results in damages to the one to whom he owes the duty. In Amy v. Barkholder et al.,35 the

34 38 Me. 379.

35 11 Wall. 136 (U. S.); also see State v. Gardner, 54 Ohio St. 24, LEADING ILLUSTRATIVE CASES.

Supreme Court of the United States, speaking through Justice Swayne, says: "The rule is well settled that where the law requires absolutely an act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages, to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty and honest intentions will not excuse the offender." In this case the plaintiff was allowed $12,108.03 for injury caused by reason of the failure of the defendants, who were supervisors of Des Moines County, to levy a tax, and this notwithstanding the fact that they were enjoined by the county court from levying the tax, and the statute making them individually liable for losses had been repealed. The county court was held to be without authority to enjoin them and the repeal of the statute to have no effect upon rights already vested under it.

75. What are ministerial acts.-This difference in liability for ministerial and discretionary acts makes it important to decide what are ministerial acts. For this purpose the test is whether or not the performance of the act can be compelled by mandamus.36 In Ex parte Batesville & B. Ry. Co.,37 the court has defined a ministerial act to mean: "One which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety 36 Grider v. Tally, 77 Ala. 422; Gillespie v. Palmer, 20 Wis. 572, LEADING ILLUSTRATIVE CASES.

37 39 Ark. 82.