an officer de facto. It is abundantly settled by authority that an officer de facto can as a general rule assert no right of property, and that his acts are void as to himself unless he is also an officer de jure. Green v. Burke, 23 Wend. 490; People v. Nostrand, 46 N. Y. 375; Bronson, J., in People v. Hopson, supra.

In the Dolan case (supra), the appointment of Keating was made under an ambiguous statute, under a claim of right, and was regular in form, but the court were of opinion that this would not protect him against a suit by the officer de jure to recover the salary received by him. We think there is no solid distinction between the cases. The defendant took the risk of the validity of his title, and the loss should fall upon him rather than upon the plaintiff.

Upon the whole case we are of opinion that the judgment should be affirmed.

CHAPTER IX.

LIABILITIES OF PUBLIC OFFICERS.

Liability of Subordinate Officer Acting Under Superior.

TRACY v. SWARTWOUT.

10 Pet. 80 (U. S.). 1836.

Liability of subordinate officer for act done in accordance with instructions of superior.

MCLEAN, J., delivered the opinion of the court:

This case was brought into this court by a writ of error to the Circuit Court of the Southern District of New York. The suit was prosecuted in that court, to recover damages from the defendant, who, as collector of the customs, had refused to allow the plaintiffs to enter and receive the payment of the lawful duties, on certain casks of syrup of sugar cane, which they had imported into the port of New York. It is admitted that the law imposed no more duty on the article than fifteen per cent. ad valorem, although the collector, acting under the instructions of the Secretary of the Treasury, required bond for the payment of the above duty, or, should it be required, a duty of three cents per pound. No bond was given, and the syrup remained in the possession of the collector for a long time, by which means its value was greatly deteriorated. The question for consideration arises out of a bill of exceptions in which the evidence is stated at large, showing the quality of the syrup, the number of gallons imported, and the refusal of the defendant to take bond for the fifteen per cent. ad valorem duty.

It was admitted by the counsel of the plaintiffs that the defendant acted throughout with entire good faith, and under instructions from the Treasury Department. The plaintiffs' counsel offered to prove that they were unable to give bonds for duties at three cents per pound, though they did not state that fact to the defendant at the time they offered to make the

entry. The court overruled this testimony, and instructed the jury "that, admitting the merchandise in question was only subject to an ad valorem duty of fifteen per cent. yet the circumstances under which the dispute about the rate of duties arose ought not to subject the collector to the payment of more than nominal damages; that the collector was pursuing what he believed to be the true construction of the law, and whatever injury the plaintiffs may have sustained, in not receiving their goods at an earlier day, grew out of their own conduct in not entering the goods in the manner offered by the collector, at fifteen per cent. ad valorem, taking the bond, however, to receive the payment of three cents per pound, if such should be the legal rate of duties demandable, merely placing the case in a situation to have the question judicially decided, as to the rate of duty, no intimation, at the time, being given that it would occasion any inconvenience to the plaintiffs to give the bond so required by the collector." Under this construction, the jury found a verdict for six cents damages and six cents costs.

There can be no doubt that the Circuit Court decided correctly in overruling the evidence of inability in the plaintiffs to give the bond demanded by the defendant. The materiality of this evidence is not pereceived; and if it had been material it ought not have. been received, unless the fact of inability had been made known to the defendant at the time the bond was required.

The collector of the customs is a ministerial officer. He acts under the instructions of the Secretary of the Treasury, who is expressly authorized to give instructions, as to the due enforcement of the revenue laws. Do these instructions, when not given in accordance with the law, afford a justification to the collector, or exonerate him from the payment of adequate damages for an injury resulting from his illegal acts? The Circuit Court, in their charge to the jury, did not consider these instructions as a justification to the defendant; and in this they were unquestionably correct. The Secretary of the Treasury is bound by the law; and although, in the exercise of his discretion, he may adopt necessary forms and modes of giving effect to the law, yet neither he nor those who act under him can dispense with, or alter, any of its provisions. It would be a most dangerous principle to establish that the acts of a minis

terial officer, when done in good faith, however injurious to private rights and unsupported by law, should afford no ground for legal redress. The facts of the case under consideration will forcibly illustrate this principle. The importers offer to comply with the law, by giving bond for the lawful rate of duties; but the collector demands a bond in a greater amount than the full value of the cargo. The bond is not given, and the property is lost, or its value greatly reduced, in the hands of the defendant. Where a ministerial officer acts in good faith, for an injury done he is not liable to exemplary damages; but he can claim no further exemption where his acts are clearly against law. The collector has a right to hold possession of imported goods until the duties are paid or secured to be paid as the law requires. But, if he shall retain possession of the goods, and refuse to deliver them, after the duties shall be paid, or bond given or tendered, for the proper rate of duties, he is liable for the damages which may be sustained by this refusal.

Some personal inconvenience may be experienced by an officer who shall be held responsible in damages for illegal acts done under instruction of a superior; but, as the government in such cases is bound to indemnify the officer, there can be no eventual hardship. The judgment of the Circuit Court must be reversed, and the cause remanded to that court for further proceedings.

Liabilities of Election Inspectors.

GILLESPIE v. PALMER.

20 Wis. 572. 1866.

Liability for

Character of duties of election inspectors. erroneously rejecting a vote. Not necessary to allege malice. DOWNER, J. It is contended by the respondents that the complaint is defective because it does not aver malice on their part in rejecting the vote. Chapter 7, Rev. St., prescribes the duties of the respondents as inspectors, and they are, in substance, that it shall be the duty of each inspector to challenge every person offering to vote, whom he shall know or suspect not to be duly qualified as an elector. One of the inspectors may then administer to the person offering to vote an oath that he will truly answer such questions as shall be put to him.

touching his residence and qualifications as an elector. If the person refuse to take the oath, or to answer any of the questions put to him, his vote is to be rejected; but if he take the oath and answer the questions, however false may be his answers, and however clearly they may show that he has no right to vote, and he still insists upon voting it is their duty to tender to him the oath prescribed in § 36 of the act, and, if he takes it, to receive his vote. If he swears falsely, or votes without the requisite qualifications, he may be, on conviction, punished. But if he takes the oaths, and answers the questions put, there is no discretion with the inspectors. They are mere ministerial officers; certainly far from being judicial. The registry act provides in substance that any one may have his name registered as a voter upon taking the same oaths and giving the same information required for voting.

If the inspectors are mere ministerial officers, then we see no good reason why the general principle of law, that a ministerial officer is liable for a wrong done by him acting in his official character, though without malice, should not be applied. It is held otherwise, however, in England, in New York, and some other states. The reason of these decisions appears to be that the inspectors of elections are intrusted with a discretionary authority, and are quasi-judicial officers. In Massachusetts and Ohio it is held the action will lie without malice. Lincoln v. Hapgood, 11 Mass. 350; Blanchard v. Stearns, 5 Metc. (Mass.) 298; Harris v. Whitcomb, 4 Gray (Mass.) 433; Jeffries v. Ankeny, 11 Ohio 373; Anderson v. Millikin, 9 Ohio St. 568. Some of these decisions are based partly on the state statute law regulating elections, as being different from the English law, but mainly upon the necessity of protecting the highly valued privilege of voting when the law has provided no other remedy. We adopt the rule of these decisions.

Judgment for plaintiff.

Exemption of Legislators from Liability for Torts.

COFFIN v. COFFIN.

4 Mass. 1. 1808.

To what extent does the privilege of members of the legislature protect them when sued for slander uttered in the legis