of the act done." Also in Bassett v. Atwater:38 "It is a precise act, accurately marked out, enjoined upon particular officers for a particular purpose." Though there may be discretion in the manner of performing an act, it may still be regarded a ministerial act and compellable by mandamus if there is no discretion as to whether or not it shall be performed at all.39 It does not follow that an act is not ministerial "because the person performing it may have to satisfy himself that the state of facts exists under which it is his duty to perform the act."40 With ministerial, as with discretionary, duties, if the officer keeps within his legal authority, his motives are immaterial.41

76. Liability for acts of subordinates.-Superior officers are not as such liable for the acts of their subordinates, whether the latter are employees or officers.42 In Robertson v. Sichel,43 which was a case involving the liability of the collector of customs for a trunk lost through the negligence of one of his subordinates, the court lays down with clearness the rule: "The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort; but to permit a recovery against the collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill posi

38 65 Conn. 355.

39 Kendall v. United States, 12 Pet. 524 (U. S.).

40 Flournoy v. Jeffersonville, 17 Ind. 169.

41 Spalding v. Vilas, 161 U. S. 483.

42 Hall v. Smith, 2 Bing. 156 (Eng.); Tracy v. Swartwout, 10 Pet. 80 (U. S.), LEADING ILLUSTRATIVE CASES.

43 127 U. S. 507.

tions 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.'

This does not mean that the superior may not, by directions to his subordinates, or by selecting subordinates known to be irresponsible or incompetent, or by failing to require proper guarantees from them, become himself liable for their acts.44 It is a rule of simple justice that officers are not liable for the acts of their predecessors.45 All courts agree upon this proposition, and no discussion of its expediency is necessary.

46

77. Form of official liability. The liability of public officers may be either criminal or civil, and the latter may be either on contract or in tort. Of course an officer is criminally liable for his acts in his capacity as an individual member of society, the same as any other citizen, but what is meant here is his criminal liability for his official acts. This latter may be either common law or statutory liability. At common law the failure or neglect to perform a ministerial duty imposed upon him by law made the officer liable to indictment for a misdemeanor.47 But in case of discretionary duties, a failure does not render the officer criminally liable unless it can be shown to be wilful or corrupt.18 The statutes may

44 Dunlop v. Munroe, 7 Cranch 242 (U. S.).

45 Vose v. Reed, 54 N. Y. 657.

46 State v. McLean, 121 N. C. 589.

47 Rex v. Commings, 5 Mod. 179 (Eng.).

48 Rex v. Webb, 1 W. Bl. 19 (Eng.).

provide for additional criminal liability, unless prohibited by the Constitution.49 Such statutes, being penal, are construed strictly.50 Where the statute penalizes only wilful or malicious conduct, mere neglect is not sufficient to bring the act within the statute. But under a statute making it an offense for an officer to give a certificate of receipt fraudulently, it is not necessary to prove intent to defraud the persons to whom it was given."

52

78. Liability on contract.-Officers are not liable upon contracts made in their official capacity unless the contract clearly shows they intended to assume a personal liability.53 Unlike the agent of a private party, an officer will not incur individual liability by exceeding his authority, for as the extent of his authority is determined by law, those with whom he deals have the same opportunity as he to judge whether or not the act is within the scope of his authority. His official bond being a personal contract, he is of course liable on it, and the extent of the liability is determined by the bond itself.55 Any contract to turn over the duties of one's office to another, except as regards purely ministerial duties, is void. With regard to such a contract, the Supreme Court of Alabama said, in Robertson v. Robinson: "No judicial tribunal, so far as we can discover, has ever given countenance to any such agreement; and

54

49 Comlth. v. Williams, 79 Ky. 42. 50 Dutton v. Phila., 9 Phila. 597.

51 State v. Hein, 50 Mo. 362.

52 State v. Morse, 52 Iowa 509.

53 New York & Charleston Steamship Co. v. Harbison, 16 Fed. 688.

54 Hall v. Lauderdale, 46 N. Y. 70.

55 Hoboken v. Harrison, 30 N. J. L. 73.

if popular elections are to be kept free from the taint of selfishness and corruption-if public offices are to be dignified as public trusts, and the performance of official duty preserved from the contamination of unlawful and improper influences-all such agreements will be condemned."

79. Liability in tort.-When one by virtue of his office seizes the property of another and in so doing acts in excess of his authority he commits a trespass and may be sued in tort for the resulting damages. Or, to put it in more general terms, where an officer acts ministerially and is bound to render certain services to individuals, as the execution of a writ or process, or is bound to render any services to individuals for a compensation in fees or salary, he is liable in tort, for misfeasance or nonfeasance, to the party injured by his acts.56 Also where an individual is prevented by an officer from exercising a right which it is lawful for him to exercise, he has an action in tort for damages against the officer so hindering him.57

80. Exemption of legislative officers.-It may be laid down as a fundamental principle of American and English jurisprudence that legislative officers are not liable personally for the injury caused by their legislative acts.58 This immunity extends not merely to members of Congress and state legislatures, but to councilmen of a municipal corporation as well. As said by the court in Jones v. Loving:59

56 South v. Maryland, 18 How. 396 (U. S.).

57 Ashby v. White, 2 Lord Raym. 938 (Eng.). 58 Baker v. State, 27 Ind. 485.

59 55 Miss. 109.

"It certainly cannot be argued that the motives of the individual members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law. Whenever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with all the immunities of government, and are exempt from all liability for their mistaken use."

60

But this immunity does not extend to slanderous remarks having no connection with the business at that time before the legislative body. This rule is well stated by the Supreme Court of Massachusetts in Coffin v. Coffin in the following language: "And I do consider a representative holden to answer for defamatory words, spoken maliciously, and not in discharging the functions of his office. But to consider every malicious slander uttered by a citizen who is a representative as within his privilege, because it was uttered in the walls of the representatives' chamber to another member, but not uttered in executing his official duty, would be to extend the privileges further than was intended by the people, or than is consistent with sound policy; and would render the representatives' chamber a sanctuary for calumny, an effect which never has been, and, I confidently trust, never will be, endured by any house of representatives of Massachusetts."

60 4 Mass. 1, LEADING ILLUSTRATIVE CASES.