department is vested with functions of a different character and each can be performed alone by the respective department to which such powers have been assigned. In determining the personal liability of an officer or employe this division will be followed.

§ 670. Duty; to whom due.

The personal liability of an officer or employe is not only dependent upon the nature of the duties or functions which he performs as based upon the threefold division of governmental powers, but also upon the further condition of to whom is the duty due.395 The performance of all official duties and functions by public officers and employes is due either to the state, the community or the public as a whole,398 or to a specific individual.**7 All quasi political and governmental duties are performed solely for the benefit and advantage of the community at large. A public corporation as a governmental agency is organized and maintained for the good of the public and not for the particular advantage of any one of the numerous individuals who may enjoy the benefits of such organization. The president of the United States in the appointment of ambassadors and ministers abroad is performing a duty which he owes not to a particular person but to the people of the United States as a governmental whole. The governor of a state in the appointment of his executive officers and in the performance of his other political and executive duties discharges a duty which he owes to the people of the state at large.

491; Belknap v. Reinhart, 2 Wend. (N. Y.) 375; Fox v. Drake, 8 Cow. (N. Y.) 191; People v. Abbott, 107 N. Y. 225, 13 N. E. 779; Allen v. Sisson, 66 Hun, 140, 20 N. Y. Supp. 971; Olifiers v. Belmont, 12 Misc. 160, 33 N. Y. Supp. 275, affirmed 159 N. Y. 550, 54 N. E. 1093; Mechem, Pub. Off. § 806, and authorities cited. But see Murray v. Kennedy, 15 La. Ann. 385.

395 People v. Whipple, 47 Cal. 592. 396 Pritchard v. Keefer, 53 Ill. 117; Union Civil Tp. v. Berryman, 3 Ind. App. 344, 28 N. E. 774; Washington County Com'rs v. Kemp, 14

Ind. App. 604, 43 N. E. 314; Freeman v. City of Chanute, 63 Kan. 573, 66 Pac. 647; Bowden v. City of Rockland, 96 Me. 129, 51 Atl. 815; Chenery v. Inhabitants of Holden, 82 Mass. (16 Gray) 125; Baugh v. Lamb, 40 Miss. 493; School Dist. No. 80 v. Burress, 2 Neb. Unoff. 554, 89 N. W. 609; Felch v. Town of Ware, 69 N. H. 617, 45 Atl. 591; Lorillard v. Town of Monroe, 11 N. Y. (1 Kern.) 392; Chapin v. Ferry, 3 Wash. St. 386, 15 L. R. A. 116; Shipman v. State, 42 Wis. 377.

397 Adams v. Slater, 8 Ill. App. 72; Sibley v. Smith, 2 Mich. 486.

§ 671. Same subject continued; duties owing an individual.

On the other hand, the proper protest of commercial paper by a notary public is a duty which that official owes to the individual who employs him for that purpose. The service of process by a sheriff or a United States marshal is a duty these officers owe to litigants who desire to employ them for such a purpose, and many other illustrations of duties owing by particular officers to particular individuals might be added.

§ 672. The rule as to personal liability.

For the negligent performance or the nonperformance of a discretionary duty owed to the public there can arise no personal liability on the part of a public officer or employe and this is especially true of those duties and functions which are quasi political.398 for the proper performance of these duties the official is alone, as has already been suggested, answerable to those who may elect or appoint him and to his conscience.

Where, however, the duty is one not discretionary in its character and due to a particular individual and its performance results in the special and particular advantage or benefit to that individual, he is responsible to the one who employs him for the performance of that specific act, or who may be injured by it, for the proper performance of the duty if a cause of action can arise because of such neglect or failure.3

398 Crow V. Warren County Com'rs, 118 Ind. 51, 20 N. E. 642; Lecourt v. Gaster, 50 La. Ann. 521, 23 So. 463; State v. Harris, 89 Ind. 363; Moss v. Cummings, 44 Mich. 359; School Dist. No. 80 v. Burress, 2 Neb. Unoff. 554, 89 N. W. 609; Gross v. Portsmouth Water Com'rs, 68 N. H. 389, 44 Atl. 529; Doolittle v. Town of Walpole, 67 N. H. 554, 38 Atl. 19; Butler v. Kent, 19 Johns. (N. Y.) 223; Moran v. McClearns, 41 How. Pr. (N. Y.) 289; State v. Buchanan (Tenn. Ch. App.) 62 S. W. 287. See, also, authorities cited under § 74, post.

399 Gregory v. City of Bridgeport, 41 Conn. 76; Duncan V.

399

Webb, 7 Ga. 187; Porter v. Thomson, 22 Iowa, 391; Weymouth v. City of New Orleans, 40 La. Ann. 344, 4 So. 218; Nowell v. Wright, 85 Mass. (3 Allen) 166; Keith v. Howard, 41 Mass. (24 Pick.) 292; Bishop v. Schneider, 46 Mo. 472; Day v. Reynolds, 23 Hun (N. Y.) 131; Clark v. Miller, 54 N. Y. 528; Van Schaick v. Sigel, 58 How. Pr. (N. Y.) 211; Cooley, Torts (2d Ed.) p. 451. "One conspicuous illustra

tion is that of the recorder of deeds. The office may be said to be created because it is for the general public good that all titles should appear of record, and that all purchasers should have some

§ 673. Liability depending upon character of duties whether imperative or discretionary.

The liability of a corporation as well as the individual officer may depend somewhat, as above suggested, even in the case of duty due the public, upon its character whether imperative or discretionary. There are public duties imposed by laws mandatory or imperative in their character and, therefore, not optional in their performance.400 In some cases the manner of performance is also prescribed by law. 401 The failure to execute these duties thus made obligatory upon public officials and employes may create the liability suggested if the individual or corporation claiming the right of redress can show not only that the duties negligently or omitted to be performed were of this character but also that he has sustained a special damage in addition or beyond that sustained by the public or the community at large. 402 There are duties even those owing to the individual where a failure to perform them or their negligent performance will result in no cause of action. The legal maxim "damnum absque injuria" will apply.

record upon which they may rely for accurate information. But although a public officer is chosen to keep such a record, the duties imposed upon him are for the most part duties only to the persons who have occasion for his official services. He is simply required to record for those who apply to him their individual conveyances, and to give to them abstracts or copies from the record if they request them and tender the legal fees. All these are duties to individuals, to be performed for a consideration; the state is not expected to enforce the performance, nor does it generally provide for punishing as a breach of the public duty the failure in performance. But the right to a private action on breach of duty follows as of course."

400 Shaw v. City of Macon, 21 Ga. 280; Newburgh & C. Turnpike Road v. Miller, 5 Johns. Ch. (N. Y.) 101; Standart v. Burtis, 46 Hun

403

(N. Y.) 82; State v. Godwin, 123 N. C. 697, 31 S. E. 221; Springfield Milling Co. v. Lane County, 5 Or. 265; Underwood v. Russell, 4 Tex. 175.

401 Wells v. Board of Education, 78 Mich. 260, 44 N. W. 267; Atchison County v. De Armond, 60 Mo. 19; School Dist. No. 25 v. Farmer, 23 Tex. Civ. App. 39.

402 Strickfaden v. Zipprick, 49 Ill. 286; Sells v. Dermody, 114 Iowa, 344, 86 N. W. 325; Ellis v. State, 4 Ind. 1; Simonds v. Heard, 40 Mass. (23 Pick.) 120; Case V. Dean, 16 Mich. 12; Brown v. Lester, 21 Miss. 392; Ripley v. Essex & Hudson County Freeholders, 40 N. J. Law, 45; Jenner v. Joliffe, 9 Johns. (N. Y.) 381; Clark v. Miller, 54 N. Y. 528; Doyle v. Aldermen of Raleigh, 89 N. C. 133.

403 Transportation Co. v. City of Chicago, 99 U. S. 635, 641; Radcliff's Ex'rs v. City of Brooklyn, 4 N. Y. 195; Bellinger v. New York Cent.

§ 674. No liability in case of discretionary duties.

Discretionary duties due the public can create or involve in no event a liability either of the public corporation or the official performing such duties, the rule applying not only to a negligent performance of such duties but the omission or entire failure to perform them.405 In some cases the performance of the duty may be imperative but the manner of its performance or of the action

may be discretionary and under these conditions, the performance may be enforced but the exercise of the discretionary element namely, the manner of the performance, will not be coerced.***

§ 675. Political and governmental or ministerial duties.

These duties are largely of a discretionary character; they are imposed upon departmental officials for the benefit of the public at large and not for that of any special individual. Their performance as well as its manner cannot be controlled by the judiciary. Their due performance has been confided to the political judgment and sagacity as well as the discretion and ability of the officers selected to perform them.408 In an early case,