and brought suit, but the court said: "Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. When there is clearly no jurisdiction over the subject matter, any authority exercised is an usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of the determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of the estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. In the case at hand the court held that the order of disbarment was irregular in that the attorney had not been cited, but that within the above principles the judge could

§ 129. Civil liability of heads of departments. In Spalding v. Vilas (28) the supreme court of the United States held that the foregoing rules applicable to judges of courts of superior jurisdiction applied to a large extent also "to official communications made by heads of executive departments when engaged in the discharge of duties imposed upon them by law."

§ 130. Civil liability of ministerial officers. In the case of Tracy v. Swartwout (29) a collector of customs had refused to allow the entry of certain goods without the payment of a duty, which the supreme court of the United States decided was not the correct duty but was higher than the law allowed, and, as a result of the detention of the goods for the nonpayment of the higher rate, the goods were damaged and action brought against the collector. It was held that the collector of the customs was a ministerial officer and the court said: "It would be a most dangerous principle to establish that the acts of a ministerial officer, when done in good faith, however injurious to private rights and unsupported by law, should afford no ground for legal redress." Accordingly the court allowed the plaintiff to recover and said that, as the government in such a case was bound to indemnify the officer, no hardship could result.

§ 131. Ministerial officers acting under process valid on its face. In the case of Erskine v. Hohnbach (30) a collector of internal revenue was sued in trespass for the conversion of certain property which he had seized in

(28) 161 U. S. 483.
(29) 10 Peters 80.

the enforcement of an assessment chargeable against the plaintiff, duly made by the assessor of the district and certified to him with an order directing its collection. The court held that the defendant was in the same position as a sheriff acting under an execution regular on its face (see the article on Torts, §§ 93-97, in Volume II of this work), and said: "Whatever may have been the conflict at one time, in the adjudged cases, as to the extent of protection afforded to ministerial officers acting in obedience to process or orders issued to them by tribunals invested by law with authority to pass upon and determine particular facts and render judgment thereon, it is well settled now that if the officer or tribunal possess jurisdiction over the subject matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to the ministerial officer is regular on its face, showing no departure from the law or defect of jurisdiction over the person or property affected, then, in such cases, the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious errors have been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process issued."

§ 132. Liability for acts of subordinates. Ordinarily an officer is not liable for the acts of his subordinates. Thus, in Robertson v. Sichel (31), where action was

brought against the collector of customs for the loss of a trunk by fire, claimed to be due to the negligence of the subordinate officers of the customs, the court considered the rule to be well settled that he was not liable and said that "competent persons could not be found to fill positions 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.'

§ 133. Liability on official bonds. In the case of People v. Schuyler (32) the question was whether the sheriff and his sureties were liable on his official bond for a trespass committed in taking the goods of a wrong party in an attempt to execute regular process. The court held that while for a purely personal wrong of the sheriff there would be no liability on the bond, yet color of authority would be sufficient to establish liability, and it would not be necessary that there should have been a wrongful action with regard to some act directly commanded by the process. But the sheriff and his sureties are not liable for the breach of a public duty not ministerial in its nature, such as the keeping of the peace (33), and, although the giving of a bond increases the liability of an accounting officer, it does not render him absolutely liable, as he is excused from turning over the funds received by him at least in the case where they have been forcibly taken from him by the public enemy (34).

EXTRAORDINARY REMEDIES

BY

PERCY BORDWELL,

B. L. (University of California)
Ph. D. (Columbia University)
LL. B., LL. M. (Columbia University)

Professor of Law, University of Missouri.

EXTRAORDINARY REMEDIES.

§ 1. Relation of subject to administrative law. For a discussion of the larger topic of Administrative Law, of which Extraordinary Remedies forms a part, see the article on Public Officers, §§ 1-3. elsewhere in this volume.