For example, in connection with the construction of public works, buildings or bridges by counties or townships, or in providing drainage sewerage, or in adopting any plan or scheme of public improvement by a municipality, the performance of such duties on the part of either body involves an exercise of “judicial" or "legislative" power. Rather should we not say that it is a governmental or discretionary power, for which we know there is no liability? But the courts have erroneously used the former designation.49 And the act of constructing a bridge by a county,50 or of sewers and drains by a municipality, after the plan is formulated, is regarded as ministerial in its nature, and if there is any negligence in the construction and the keeping of the same in repair, the county (by statute) and the municipality (by common law) is liable for any injury caused by its neglect." The importance of this distinction is obvious. may well be the law," it is said, "that a municipal corporation is not liable for any error or want of judg ment upon which its system of drainage of surface water may be devised, nor for any defect in the plan which it adopts. The . . . . council must, from necessity, exercise its judgment and discretion, and should be at liberty to adopt the best plan to accomplish the end."53 Judge Dillon says that for injury, occasioned by the plan of improvement, as

52

"It

49 Mills v. City of Brooklyn, 32 N. Y. 489; Stone v. City of Augusta, 46 Me. 127.

50 Stone v. City of Augusta, 46 Me. 127.

51 Ante, sec. 97.

52 Gilluly v. Madison, 63 Wis. 518, 53 Am. Rep. 299, 24 N. W. 137; Joliet v. Harwood, 86 Ill. 110, 29 Am. Rep. 17; Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592; Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552; Rowe v. Portsmouth, 65 N. H. 291, 22 Am. Rep. 464; ante, sec. 98.

53 Gilluly v. Madison, 63 Wis. 518, 53 Am. Rep. 299; ante, sec. 104.

distinguished from the mode of carrying it out, there is ordinarily no liability.54 The true distinction in this matter is that the obligation to establish and open sewers is a legislative duty, while the obligation to construct them with care and not negligently and to keep them in repair is a ministerial act. Some confusion is found among the cases touching this matter, due to improper distinction in the particular cases.55 There is a lack of uniformity among the decisions upon the question of liability for errors of plan, which will not be pursued further here, our purpose now being to point out the distinction in power,50 and the question has been considered elsewhere.57

§ 159. Ministerial Officers Classified. Following the distinction which we have previously pointed out,58 it is not difficult to classify officers-ministerial and judicial. As before stated,59 ministerial officers who are authorized to exercise a power akin to judicial, that is, to hear and determine from evidence, or, upon making investigation, to determine what shall or shall not be done in a particular case according to their best ability and judgment, still exercise ministerial functions of a discretionary character. The rule of nonliability rests upon sounder reason, if we consider it an exercise of discretion rather than of a quasi judicial character. No judicial power can be conferred upon an officer other than a judicial one. Another reason why it is illogical to

54 2 Dillon on Municipal Corporations, secs. 949, 1051.

55 See Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552 (where

it was a positive act of casting water upon property from a sewer already constructed); ante, sec. 104.

56 See Jones on Negligence of Municipal Corporations, secs. 140, 145.

57 Ante, sec. 104.

58 Ante, sec. 158. 59 Ante, sec. 158.

speak of the acts of officers, other than judicial, as exercising judicial power in performing their duties, is that, strictly speaking, judicial acts are such as are performed by a court, with respect to the rights of persons and property, and this cannot be conferred on a ministerial officer.60 The executive officers of courts, sheriffs and constables, clerks of courts, auditors, recorder of or register of deeds, treasurers, superintendents of instruction, city clerks, clerks of city courts, are the usual ministerial officers of county and city. There is not so much likelihood of there being any liability on the part of any ministerial officer of the state, because their duties are largely governmental. But clerks of the state supreme court, superintendents of state institutions, are ministerial officers, having many duties to perform which affect primarily the individual. The governor, state auditor, treasurer, and other state officials may perform ministerial duties.

§ 160. Ministerial Officers-Liability for Official Neglect-General Doctrine. The general rule of official responsibility of ministerial officers, previously considered,81 may now be stated, under its appropriate head, with a citation of leading cases in its support. Thus, when an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case. This is an ancient rule of the common law. In most instances there is an overshadowing public duty, in the performance of which the individual has a special and direct interest; or the public duty is imposed, in other words, for the benefit of the individual, who may have redress by an

60 Musser v. Adair, 55 Ohio St. 466, 45 N. E. 903; Flournoy v. Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468.

01 Ante, secs. 157, 158.

63

64

action in tort for the breach of the duty. The wrong may be negligence or it may be an intentional or otherwise wrongful act.62 The wrong may be characterized by negligence, in carelessly or erroneously doing something required of the officer. That an officer "acts or omits to act contrary to his duty" is a comprehensive statement of official responsibility. This omission of duty may not only consist, as stated, of negligence, but an officer may act maliciously. The principle was early and clearly settled that when the action of an officer depended upon his own judgment or discretion, and he errs in his judgment not to act when he should have acted, then there is no liability. That falls under the head of nonliability for error of judgment. But it is otherwise if the question as to whether he shall act or not depends upon some legislative requirement or order, he having nothing to decide, and hence is liable for inaction to the person to whom the duty was owing for any injury resulting. The instances where an omission to perform a pre

62 Rowning v. Phelps, 2 W. Black. 906; Raynsford v. Phelps, 43 Mich. 342, 38 Am. Rep. 189; Eslava v. Jones, 83 Ala. 139, 3 Am. St. Rep. 699, 3 South. 317; Bellinger v. Glenn, 80 Ala. 190, 60 Am. Rep. 98; Adsit v. Brady, 4 Hill, 632, 40 Am. Dec. 305; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Selover v. Sheardown, 73 Minn. 393, 72 Am. St. Rep. 627, 76 N. W. 50; Osborne v. McMasters, 40 Minn. 103, 12 Am. St. Rep. 698, 41 N. W. 543; Woolley v. Baldwin, 101 N. Y. 688, 5 N. E. 573; McCord v. High, 24 Iowa, 336.

63 Adsit v. Brady, 4 Hill, 630, 40 Am. Dec. 305.

64 Shearman and Redfield on Negligence, sec. 313. Some early cases hold that an officer acting within the scope of his duty is only responsible for an injury resulting from corrupt motive: Ramsey v. Riley, 13 Ohio St. 157; Stewart v. Southard, 17 Ohio, 402, 49 Am. Dec. 463; Tinsman v. Belvidere, 26 N. J. L. 148, 69 Am. Dec. 565.

65 Harman v. Tappender, 1 East, 555; Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256.

66 Shearman and Redfield on Negligence, sec. 314; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713, and note. See 90 Am. Dec. 73, note, and cases.

scribed or required duty will result in actionable injury are numerous, and it should no longer be questioned in any jurisdiction that dereliction of such duty is actionable. But, as one writer puts it, "the obligation to do it must be absolute, specific, and imperative."67 This was the English rule.68 The general rules stated in this and previous sections on this subject will find apt illustration in the further treatment of the responsibility of the various officers.

67 Id. See 2 Thompson on Negligence, old ed., 822. 68 Henly v. Mayor etc., 5 Bing. 107, 108.