pertain more to the general public than to the individual. For instance, the treasurer and auditor are engaged principally in exercising governmental functions, and there is hence not much opportunity for their acts causing individual injury. County commissioners, as we will see more particularly later,1perform both governmental and ministerial and discretionary ministerial functions. With reference to the latter, the county, by statute, may become liable for the neg lect of a ministerial duty of its county commissioners. This has been discussed at another place." County auditors, or those officers whose duty it is to make up the tax assessments, also perform almost no other but governmental duties. Recorders or registers of deeds, clerks of courts, and sheriffs have to do almost entirely with matters relating to individual interests, the duties with reference to which are ministerial, for the violation of which there is a personal liability.

§ 171. County Commissioners-No Personal Liability. County commissioners are public officers, elected by the people to exercise certain governmental and ministerial or proprietary powers, and to perform administrative duties of a county. It has been said that such boards, in some respects, act judicially, and in others ministerially; that "while rightfully acting in the former character, they are treated as courts, and their judgments and orders cannot be collaterally assailed, and the principles of former adjudication are applicable to them, but when they act ministerially, their orders are not judicial, and are not binding on the county when not authorized by law."3 If this be a correct view of the nature of the acts of county com

1 See sec. 171, post.

2 Ante, sec. 97.

3 Board of Commrs. v. Heaston, 144 Ind. 583, 55 Am. St. Rep. 192, 41 N. E. 457, 43 N. E. 651.

missioners, it would aid in the solution of the question of the liability of the county or themselves personally for wrongs committed by them, but it will be remembered that we have taken a stand against classing the powers of such and kindred officers as judicial, or as quasi judicial. The principle upon which the statutes making counties liable for wrongs proceed is, that whenever the county is acting through its commissioners in any matter not strictly governmental, but like individuals do in the management of their property, in a private or proprietary or ministerial character, then the county should rightly be held for their neglect which causes injury to others. But the subject of the liability of the county has been sufficiently discussed elsewhere. As to the liability of the commissioners personally, it is clear that whenever they act in their official capacity, in good faith and in the honest discharge of official duty, they cannot be held personally liable. The reason for such a rule of personal immunity is obvious. All powers—governmental, private or proprietary-vested in the county must of necessity be exercised by its officers, the county commissioners. As the county is not liable in the absence of statute, it would be an anomalous doctrine that would exempt the county from liability on the ground of its compulsory agency in behalf of the public welfare, and at the same time affix a liability upon its officers for precisely the same acts done under express authority. The exemption of the political organization is because its agency is a public necessity, and the rule will relieve the servant, the officer, from personal responsibility when he is engaged in the honest discharge of official duty.5

4 Ante, sec. 97.

5 Thomas v. Wilton, 40 Ohio St. 516; Packard v. Voltz, 94 Iowa, 277, 58 Am. St. Rep. 396, 62 N. W. 757; Worden v. Witt (Idaho), Torts, Vol. I-25

6

§ 172. County Treasurer. The duties of a county treasurer are perhaps altogether governmental in their nature. He is required to collect taxes, both county and state, safely keep the public money, and pay it out only as provided by law. The position which the treasurer sustains as a public officer is peculiar. In Michigan it is said that the relation of the treasurer to the county is that of debtor, and not the bailee of the county. The differences in the various systems of statutes show that the responsibility is not uniform. There seems to be nothing at common law which distinguishes public treasurers or depositories from any other financial managers. Where the same person receives and pays out money the identity of the particular money is lost. In bailments the bailee is exonerated if he has done all that he can to prevent loss. The treasurer is liable for any loss sustained by deposit of the public funds, whether the county does or does not provide a safe place for keeping the same, and whether or not the bank is solvent.8 The public only is concerned in the loss of the funds or in any misuse, misappropriation of public money, or in wrongful payments thereof. So likewise is the public only interested in the collection or noncollection of taxes. The entire scope of the duties are generally compassed entirely by statute, and all his duties are owing to the state. There is perhaps no way in which he can commit a tort to an individual. A mortgagee cannot maintain suit against a county treasurer for neglect to collect taxes out of the mortgagor's personal property. The failure of the treas

39 Pac. 1114; Commissioners v. Martin, 4 Mich. 557, 69 Am. Dec. 333.

6 State v. Nevin, 19 Nev. 162, 3 Am. St. Rep. 873. 7 Pac. 650. 7 Perley v. Muskegon County, 32 Mich. 132, 20 Am. Rep. 637.

8 State v. Moore, 74 Mo. 413, 41 Am. Rep. 322; Lowry v. Polk County, 51 Iowa, 50, 33 Am. Rep. 114, 49 N. W. 1049.

urer to levy on personal property may work some injury to the mortgagee, in some states, by adding burdens borne by the mortgaged lands, but any injury sustained by the mortgagee is too remote and indirect to give rise to a private action."

§ 173. Recorder or Register of Deeds Design of Office. The office of recorder of deeds was unknown to the English common law. The design of it, with us, has been to furnish a permanent record of all titles and muniments of real estate and many of personal, to which parties may have recourse for exemplifications that have the same force and efficacy as the originals. It is also to enable all persons to obtain knowledge of the state of titles to real estate by conveyances; and also of charges and encumbrances existing on them by way of mortgages. The various statutes have marked out the policy of the law with reference to the records of titles, so as to afford facilities for intending purchasers or mortgagees of land in examining the records, for the purpose of ascertaining whether there are any claims against it, and for this purpose the mode in which the recorder shall keep the records of the instruments deposited with him have been prescribed.

§ 174. Recorder or Register of Deeds-Liability in Tort. The officer whose duty it is to make records of conveyances of land and liens thereon, and liens upon chattels, is a ministerial officer, the duties of whom are due to individuals desirng his services. It is true that public records of such matters are kept for the general good, in order to make titles to property secure and avoid confusion, but the individual only is affected by any dereliction of duty on the part of the 9 State v. Harris, 89 Ind. 363, 46 Am. Rep. 169.

recording officer. The measure and extent of the duties and obligations to those requiring the services is to be determined by reference to the recording acts. And the acts of neglect by which he may now be held liable is being generally regulated by statute, which, together with the recording acts, should be consulted.10 A recorder cannot refuse to receive a proper paper for record, except for the nonpayment of the fee,11 without laying himself liable to action. So is he liable if he does not record the instrument within the time, if a limitation is prescribed.12 He is liable to one injured if he indorses a wrong date on an instrument,13 although some courts have held that his indorsement is not conclusive, and that the true date may be shown.14 This doctrine is denied in other states.15 But with regard to the erroneous date causing injury to other persons, it would seem that the recorder is responsible whether such date can be contradicted or not. The conclusiveness of the date would have no bearing in a tort action unless it could be said that the erroneous date is not constructive notice, and that is not reasonable.

§ 174a. Recorder Continued-Liability for Failure to Register Instrument, or for Erroneous Record. If a recorder violates a statutory duty, or a requirement of the recording acts, he commits a wrong, but in the case of a failure to register, or in erroneously recording, there is stubborn conflict of judicial opinion as to whether a grantee of an instrument, or a

10 Ohio Rev. Stats., sec. 1146.

11 Id.

12 Id.

13 Id.

14 Horsley v. Garth, 2 Gratt. 471, 44 Am. Dec. 393; Wing v. Hall, 47 Vt. 182; Kalb v. Wise, 5 Ohio N. P. 5.

15 Tracy v. Jenks, 15 Pick. 465; Hatch v. Haskins, 17 Me. 391; Dubose v. Young, 10 Ala. 365; Parsons v. Boyd, 20 Ala. 112.