Art. 3. Judicial and Quasi-Judicial Officers and Proceedings. District No. 2 v. Lambert, 28 Oreg. 209, as follows: "Where the law authorizes a person to hear and determine issues between parties, the granting or refusal of relief demanded therein is a judicial act, but where a power vests in judgment or discretion, so that it is of a judicial nature or character, but does not involve the exercise of the functions of a judge, or is conferred upon an officer having no authority of a judicial character, the expression used is generally quasi-judicial; so that where, in the exercise of a power, an officer is vested with a discretion, his act is regarded as quasijudicial."

An officer who acts judicially for the time being is considered a judicial officer, although he may also perform ministerial duties. In order to be entitled to this protection, however, the officer must act within his jurisdiction, in good faith, without fraud or malice, and the burden of proof is on the plaintiff to show that the officer acted maliciously and in bad faith. 19 Am. & Eng. Encyc. of Law (1st ed.), 486.

Nelson, J., in Easton v. Calender, 11 Wend. 91 (93), says, in speaking of the extent of liability of quasi-judicial officers that if they confine themselves within the limits of the statute, though they may err in point of law or judgment, they should not be either civilly or criminally answerable if their motives are pure. This is the rule applicable to public officers, bound to exercise their deliberative judgment in the discharge of their official duties, and is applicable to all inferior magistrates, and others called to the performance of functions in their nature and character judicial, while acting within their jurisdiction and the scope of their powers.

66

In Matter of Zborowski, 68 N. Y. 88, Folger, J., in the opinion, discusses the meaning of the term judicial" as distinguished from what may be termed " quasi-judicial." In one sense the term "judicial" is used of such bodies or officers as have the power of adjudication upon the rights of persons and property; in the other class of cases as a course of official action for the consequences of which the official will not be liable, although his act was not well judged.

In Cunningham v. Bucklin, 8 Cow. 179 (185), Savage, Ch. J., cites with approval from the opinion of Spencer, J., in Jenkins v. Waldron, 11 Johns. 114: "It would, in our opinion, be opposed to all the principles of law, justice, and sound policy to hold that

Art. 3. Judicial and Quasi-Judicial Officers and Proceedings.

officers called upon to exercise their deliberative judgments are answerable for a mistake in law, either civilly or criminally, when their motives are pure and untainted with fraud or malice."

The principle is well settled that a public officer, who is not a mere volunteer, but compelled to act in a judicial capacity, is not amenable either civilly or criminally for a mistake in law or error of judgment, when his motives are untainted with fraud or malice. Teall v. Felton, 1 N. Y. 537, where it was held that a postmaster did not act judicially in assuming to charge letter postage on a newspaper, in consequence of an initial being on the wrapper, so as to protect him in an action for improperly detaining such newspaper, when no fraud or malice was alleged or proved.

It is held in East River Gas Light Co. v. Donnelly, 93 N. Y. 557, that a public officer is not responsible in a civil action for a judicial determination, however erroneous, or however malicious the motive which produced it.

So held in an action against an assessor for refusing to give plaintiff, who was a taxable inhabitant, the benefit of the exemption allowed by law, on account of his being a minister of the gospel, or for assessing his property at a higher rate than that which he had assessed the property of the other inhabitants, though the conduct of the defendant was alleged to have been willful and corrupt. Weaver v. Devendorf, 3 Den. 117.

An officer, who is enjoined by law to do certain things, if in his judgment or opinion the requisites therein mentioned have been complied with; and inhibited under the like exercise of his discretion from doing other things, is not answerable to a party who may conceive himself aggrieved from a mistake arising through omission or mere want of skill, if there be no bad faith, corruption, or some misbehavior, or abuse of power. Seeman v. Patten, 2 Cai. 311 (317).

A good deal of obscurity has rested upon the subject of the immunity of ministerial officers who perform duties at times which are judicial in their nature, while others purely ministerial are executed by them, and these duties sometimes so mingle as not to be easily distinguished from each other. It is said in Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463 (466), citing Wilson v. Mayor of New York, 1 Den. 599: "Wherever duties of a judicial nature are imposed upon a public officer, the due execution of which depends upon his own judgment, he is exempt

Art. 3. Judicial and Quasi-Judicial Officers and Proceedings.

from all responsibility by action, for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted; but he cannot be prosecuted by an individual to obtain redress for the wrong which may have been done. But this judicial immunity can be extended no farther. The civil remedy depends exclusively upon the nature of the duty which has been violated. When duties which are purely ministerial are cast upon officers whose chief functions are judicial, and the ministerial duty is violated, the officer, although for most purposes a judge, is still civilly responsible for such misconduct."

It was said in Gleason v. Peerless Mfg. Co., 1 App. Div. 257, 37 N. Y. Supp. 267, affirmed on opinion below, 163 N. Y. 574, that the common council of a city in determining who was the lowest bidder for a contract acted judicially, but that in this class of cases the term "judicial" is not to be used in the sense of appertaining to the "judiciary" or administration of justice, but as indicating the exercise of discretion or judgment as distinguished from what is purely ministerial. That is to say, the common council in that respect acted in a quasi-judicial capacity, and its action was, therefore, subject to review by the courts.

In Erving v. Mayor, Aldermen, etc., of New York, 131 N. Y. 133, it was held that the letting of a contract by the commissioner of public works is judicial in its nature and character, and the award is the result of a judicial act.

Assessors having jurisdiction both of the person taxed and of the subject-matter, are not individually liable for an erroneous assessment, where they act in good faith. To establish a personal liability it must be made to appear that they acted without jurisdiction. Williams v. Weaver, 75 N. Y. 30.

Assessors are subordinate officers, and must act within the authority given them; when they have no power to act at all, either as to person or property, their acts are void, and when their right to act depends upon the existence of some fact, an assessment founded upon an erroneous determination by them as to the existence of such fact is illegal. They cannot acquire jurisdiction by determining that they have it. National Bank of Chemung v. City of Elmira, 53 N. Y. 49, cited together with Matter of New York Catholic Protectory, 77 N. Y. 342, in Etna Ins. Co. v. Mayor, 153 N. Y. 331 (339); Dorn v. Backer, 61 N. Y. 261.

Assessors have no jurisdiction to assess a person for personal

Art. 3. Judicial and Quasi-Judicial Officers and Proceedings.

property, unless he is a resident of the town, and if they do, they make themselves personally liable to the person assessed for the damage they occasioned him, even though they act in good faith. People v. Supervisors of Chenango, 11 N. Y. 563; Mygatt v. Washburn, 15 N. Y. 316; Barhydt v. Shepherd, 35 N. Y. 238.

School district trustees acting as assessors have limited jurisdiction and are liable as trespassers where they fail to keep within their statutory powers. Jewell v. Van Steenburgh, 58 N. Y. 85.

But where assessors have jurisdiction, they cannot he held responsible for error in the exercise of that discretion. Chegaray v. Jenkins, 5 N. Y. 376; Weaver v. Devendorf, 3 Den. 116; Harman v. Brotherson, 1 Den. 537.

The decision of assessors upon the question of residence and their consequent jurisdiction is not conclusive, but is open for review. Dorn v. Backer, 61 N. Y. 261.

Assessors in making assessments act judicially and they have the immunity of judicial officers. Van Deventer v. Long Island City, 139 N. Y. 133.

This rule is subject to the qualification that they have acquired jurisdiction of the person and subject-matter liable to be taxed. The question of jurisdiction being always open to inquiry when the authority to make an assessment is assailed, but having acquired jurisdiction assessors act in a judicial capacity. McLean v. Jephson, 123 N. Y. 142.

Assessors have no jurisdiction of the person of one who does not reside within the district within which their jurisdiction extends. City of New York v. McLean, 170 N. Y. 374 (384).

There is a clear distinction between a case of erroneous assessment and assessment of property which the law has made no provision for assessing. It is the same in effect as that of an erroneous judgment of a court having jurisdiction of the person and the subject-matter, and the judgment of a court having no jurisdiction. Norris v. Jones, 81 Hun, 304 (310), 27 N. Y. Supp. 209, 30 N. Y. Supp. 1134.

Inspectors of election are simply ministerial officers. A board of inspection has no discretionary power to reject the vote of a person who, upon being challenged and on application of the statutory test, has shown himself qualified to vote. People ex rel. Stapleton v. Bell, 119 N. Y. 175, citing at p. 186 from People ex rel. v. Pease, 27 N. Y. 45, the language of Judge Selden that inspectors are required to act upon the evidence which the statute

Art. 4. Public Officers.

prescribes, and have no judicial power to pass upon the question of its truth or falsehood."

In Goetchens v. Mathewson, 61 N. Y. 420 (437), Dwight, C., distinguishes Jenkins v. Waldron, 11 Johns. 914, holding that the question before the inspectors in that case was a point in the law of evidence on which they might be held to act judicially, and arriving at the conclusion that the inspectors in the case then at bar did not act in a judicial capacity.

The immunity of highway commissioners acting in a quasi-judicial capacity is considered in Beardslee v. Dolge, 143 N. Y. 160, where the rule is reiterated that the official determination of an officer as to a fact upon which his power to act depends is not conclusive, and if the fact does not exist, his decision that it does exist does not establish jurisdiction.

As to when a court is authorized to entertain jurisdiction, see O'Donoghue v. Boies, 159 N. Y. 87 (98).

It is said in Spalding v. Vilas, 161 U. S. 483, that "The same general consideration of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their judicial functions, apply to a large extent to official communications made by heads of executive departments when engaged in the discharge of duties imposed upon them by law."

It is said in note to Webb's Pollock Torts, 145, that military and naval officers, arbitrators, tax assessors, grand and petit jurors, collectors of customs, and school commissioners are called upon to exercise a sort of conventional jurisdiction analogous to that of inferior courts of justice, which are termed "quasi-judicial acts."

ARTICLE IV.

PUBLIC OFFICERS.

SUBDIVISION 1. Nature and extent of liability..

2. Liability for acts of subordinates.

PAGE.

180

184

3. To what extent protected by process. . . . . . 185

SUBDIVISION 1.

Nature and Extent of Liability.

A ministerial officer is not liable for doing an act which is either directed or authorized by a valid statute, if performed with