CHAPTER XII.

LIABILITY OF PERSONS IN OFFICIAL RELATIONSLEGISLATIVE, FEDERAL AND STATE OFFICIALS.

§ 166.

Notaries public are public officers.

§ 167. Duties of notaries-Care to be exercised.

§ 168.

Notaries' liability for defective acknowledgment of deed. § 169. Liability of notary in protesting paper.

§ 161. Legislative Department. The legislature of a state, or the legislative department of a municipality, has absolute power within constitutional limitations to pass whatever legislation it sees fit, and the state and the legislators are exempt from any liability whatsoever. The motives of individual members of a legislative body cannot be inquired into, and they may not be held personally liable, even though malice prompted their action. The public welfare requires this immunity. Legislative bodies hold and exercise the power vested in them for the public good, and are clothed with all the immunities of government (discussed at previous section),1 and are exempt from all liability for their mistaken use. If any wrong is done to an individual by an excess of legislative power, he has ample remedy against such legis

1 Ante, sec. 98.

2 Jones v. Loving, 55 Miss. 109, 30 Am. Rep. 508; Anne Arundel County Commrs. v. Ducket, 20 Md. 469, 83 Am. Dec. 557; Borough of Freeport v. Marks, 59 Pa. St. 253.

Torts, Vol. I-24

lation; it is void, and consequently cannot impose personal liability.

§ 162. Federal Officials.-It has often been contended in federal courts that the fundamental principles of our government as to the complete separation of the executive, legislative, and judicial departments is a bar to any action in the courts against the members of the executive departments for any official or executive acts. Such contention, however, has not been sanctioned by the federal courts in regard to acts of a ministerial nature, and especially those in which any individual has a particular interest.

While the President has never been sued in tort for injuries, the principles enunciated by the supreme court leaves no doubt but that he might be so sued. In at least one instance he has been subjected to an action for mandamus, and the opinion of Chief Justice Marshall practically decides according to our view.3 By acts of Congress various duties have been laid upon the different officers of the executive departments, with respect to which they have no discretion but to act as is laid down therein. A failure to perform these duties if they are owing to private individuals renders the officials liable to these individuals. As is said by Chief Justice Fuller, when "a mere ministerial duty is imposed upon the executive officers of the government-that is, a service which they are bound to perform without further question-then if they refuse, the mandamus may be issued to compel them."4 On this principle a private individual has a right to compel the postmaster general to place to his credit certain amounts which have been determined by the solicitor of the treasury to be due him, when

3 Marbury v. Madison, 1 Cranch, 170.

4 United States v. Blaine, 139 U. S. 306, 11 Sup. Ct. Rep. 538.

Congress has passed an act commanding the postmaster general to place to his credit whatever amount the solicitor should find to be due him. The act of Congress made it a private duty owing to the appellant by the chief executive officer of the postoffice department, which neither he nor the President could refuse to obey.5 So mandamus will lie to compel the commissioner of patents to receive an application which is properly brought before him, "whatever he may do subsequently." The reception of the application is a purely private ministerial act, and while the decision as to the disposition of the application is judicial in nature if he determines that a patent shall issue, he acts ministerially in preparing the patent for the signature of the secretary, and in countersigning it, and if he then refuses to perform those ministerial acts, mandamus will lie."

Thus, when the officer, whose action is necessary to vest the title of land, has decided in favor of a claimant, and the patent to him has been duly signed, sealed, countersigned, and recorded, the delivery of the patent to the claimant is a mere ministerial act, and the duty imposed upon the officer is owing to the one individual giving him a right to an action in tort or mandamus. Likewise, when the secretary of the treasury has acted upon every matter of discretion in his powers of determining as to the indebtedness of the United States to an individual on a contract, the delivery of a warrant for the amount found due is a private ministerial act, and the duty is of a private nature. A commissioner of pensions has no discretion in carrying out the decisions of the Secre

9

Kendall v. Stokes, 12 Pet. 524.

6 Commr. of Patents v. Whiteleg, 4 Wall. 533.

7 Butterworth v. Hoe, 112 U. S. 50, 5 Sup. Ct. Rep. 25.

8 United States v. Schurz, 102 U. S. 378.

9 United States v. Windom, 19 D. C. 54.

tary of the Interior concerning the payment of an increase pension.10 In fact, every government official has duties which he owes to private individuals, in which he is not invested with discretion, but is required to act without question.11

§ 163. Official Neglect of Postoffice Officials.-The liability of federal officials has already been considered.12 The law is well established that the postmaster general is not responsible for the negligence of postmasters or their deputies, or such assistants. Public policy requires the recognition and application of this rule. Deputy postmasters are held liable for losses and injuries caused by their own defaults and negligence.13

With reference to postmasters, it may be said that their duties toward individuals are largely, if not altogether, of a ministerial or mandatory character. Hence it may be said that a postmaster may be held personally liable for all losses sustained by parties through and by his negligence, or the negligence of a clerk or assistant whom he has employed without governmental authority.14 Such a rule will operate only in rural districts principally, as the business of the postoffice department of the government is now transacted under civil service law in cities. All carriers and most of the clerks employed receive their

10 United States v. Black, 128 U. S. 40, 9 Sup. Ct. Rep. 12.

11 Brashelar v. Mason, 6 How. 92; Gainer v. Thompson, 7 Wall. 347; Commr. of Patents v. Whiteley, 4 Wall. 522; United States v. Guthrie, 17 How. 284; State of Georgia v. Stanton, 6 Wall. 50. 12 Ante, sec. 162.

13 Raisler v. Oliver, 97 Ala. 710, 38 Am. St. Rep. 213, 12 South. 238; citing Lane v. Colton, 1 Ld. Raym. 646; Story on Agency, sec. 319b; Central R. R. Co. v. Lampley, 76 Ala. 364, 52 Am. Rep. 334; Teal v. Felton, 12 How. 285; Schroyer v. Lynch, 8 Watts, 454; Claflin v. Hauseman, 93 U. S. 130.

14 Raisler v. Oliver, 97 Ala. 710, 38 Am. St. Rep. 213, 12 South. 238; Coleman v. Frazier, 4 Rich. 146, 53 Am. Dec. 727.

appointment, not from the postmaster, but from the department, and the rule is that all such persons are officers of the government, and answerable for their own acts, the postmaster not being liable for their neglect.15

Under the modern service in the postoffice department in nearly every instance where clerks are employed, either under the operation of the civil service law or where their appointments are made by the postmaster himself, such clerks are required by law to give bond and to take an oath of office. In fact, every person who has anything to do with the mail service, down to the drivers of the wagons carrying mails from the offices to the railroads, are required to take an oath. Hence, if we are to apply the rule laid down in early cases that whenever a person in the service of the department takes an oath of office, he is to be regarded an officer, and is alone personally responsible for his own neglect, there is hardly any case where a postmaster would be liable for official neglect except his own.

In the operation of the modern rural delivery system the person appointed to take charge of a route gives bond and takes an oath, and, therefore, is to be regarded as an officer, and responsible for his own acts. A person whom he might employ to do the work would be his servant, rendering him liable for any losses sustained by the acts of such servant. There is little opportunity, therefore, under modern conditions, for the application of rules adopted in earlier cases applicable to mail contractors and mail carriers. All mail routes are let by contract, and the

15 Conwell v. Voorhees, 13 Ohio, 523, 42 Am. Dec. 206; Schroyer v. Lynch, 8 Watts. 453; Wiggins v. Hathaway, 6 Barb. 632; Dunlop v. Munoe, 7 Cranch, 242; Keenan v. Southworth, 110 Mass. 474, 14 Am. Rep. 613.