This rule and the reasons for it are well stated in a leading case in Massachusetts. There the defendant, a justice of the peace of the county of Middlesex, had assumed jurisdiction of an offense of which the police court of the city of Lowell had by statute exclusive jurisdiction. In the course of the trial of the case, the defendant committed the plaintiff for contempt in refusing to testify. The defendant had authority to so commit the pinal o. Peyroux, 37 La. Ann. 477, or who issues an execution upon a void judgment; Inos v. Winspear, 18 Cal. 397; or who acts in a case, committing to prison, where by law he must associate another with him: Revill v. Pettit, 3 Metc. (Ky.) 314. To like effect, Kelly v. Rembert, Harp. (S. C.) L. 65, 18 Am. Dec. 643; or inflicts punishment under a repealed or unconstitutional statute: Ely v. Thompson, 3 A. K. Marsh (Ky.) 70; Kelly v. Bemis, 4 Gray 83, 64 Am. Dec. 50; or causes to be seized by process issued by him the property of another than a party to the suit: Terrail v. Tinney, 20 La. Ann. 444; or proceeds to render judgment and issue execution after the cause has been discontinued by irregular adjournment: Spencer ». Perry, 17 Me. 413; or who issues an execution for the arrest of a party in a case in which the law prohibits such arrest: Sullivan v. Jones, 2 Gray (Mass.) 570. (See this case distinguished from White v. Morse, 139 Mass. 162); or who refuses to take proper and sufficient bail, and causes the party to be imprisoned: Guenther v. Whiteacre, 24 Mich. 504; or who issues a warrant of arrest officiously without complaint or oath or personal knowledge that a crime has been committed: Flack v. Harrington, Breese, 165, 12 Am. Dec. 170; or who commits a witness for contempt in a cause in which he had no jurisdiction: Piper v. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438; or which had previously been concluded: Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470; or who causes an arrest upon an insufficient warrant. Blythe v. Tompkins, 2 Abb. (N. Y.) Pr. 468; or who issues a search warrant without the preliminary requisites, or, if it be general in form, Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200; or who issues an attachment without proof of an essential prerequisite: Adkins v. Brewer, 3 Cowen (N. Y.) 206, 15 Am. Dec. 264; or who issues a warrant under a statute which does not apply to the case: Evertson v. Sutton, 5 Wend. (N. Y) 281, 21 Am. Dec. 217; or who issues a warrant without the required complaint in writing: Tracy v. Williams, 4 Conn. 107, 10 Am. Dec. 102; or who causes an arrest for an offense known to have been committed outside of the State: Miller v. Grice, 2 Rich. (S. C.) L. 27, 44 Am. Dec. 271; or who commits a prisoner upon a complaint showing on its face that the offense charged is barred by the statute of limitations: Vaughn v. Congdon, 56 Vt. 111, 48 Am. Rep. 758; or who surrenders a principal to his bail in a case where no such surrender is authorized by law: Morrill v. Thurston, 46 Vt. 732; or who issues a warrant, causes the arrest, tries, convicts and sentences a party after his term of office had expired, though the justice was in good faith ignorant of that fact: Grace v. Teague, - Me. - 18 Atl. Rep. 289. plaintiff if he had jurisdiction of the offense, but it was held that, having no jurisdiction of the offense, the defendant had no power to commit, this power being merely incidental to the authority to try. In giving the opinion of the court,' BIGELOW, J., said: "The decision of this case depends on the familiar and well settled rule concerning the liability of courts and magistrates, exercising an inferior and limited jurisdiction, for acts done by them, or by their authority, under color of legal proceedings. One of the leading purposes of every wise system of law is to secure a fearless and impartial administration of justice, and at the same time to guard individuals against a wanton and oppressive abuse of legal authority. To attain this end, the common law affords to all inferior tribunals and magistrates complete protection in the discharge of their official functions so long as they act within the scope of their jurisdiction, however false and erroneous may be the conclusions and judgments at which they arrive. But, on the other hand, if they act without any jurisdiction. over the subject-matter, or if, having cognizance of a cause, they are guilty of an excess of jurisdiction, they are liable in damages to the party injured by such unauthorized acts. In all cases, therefore, where the cause of action against a judicial officer, exercising only a special and limited authority, is founded on his acts done colore officii, the single inquiry is whether he has acted without any jurisdiction over the subject-matter, or has been guilty of an excess of jurisdiction. By this simple test, his legal liability will at once be determined. If a magistrate acts beyond the limits of his jurisdiction, his proceedings are deemed to be coram non judice and void; and if he attempts to enforce any process founded on any judgment, sentence or conviction in such case, he thereby becomes a trespasser." 3 § 631. Same Subject-Liability for acting under void Statute. -This rule has been carried to the extreme of holding an infe 1 Piper v. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438. 2 Citing 1 Chitty Pl. (6th Am. ed.) 90, 209-213; Beaurain v. Scott, 3 Camp. 388; Ackerley v. Parkinson, 3 Maule & Sel. 425, 428; Borden v. Fitch, 15 Johns. (N. Y.) 121, 8 Am. Dec. 225; Bigelow . Stearns, 19 Citing 1 Chitty Pl. 210; Bigelow v. Stearns, 19 Johns. (N. Y.) 39, 10 Am. Dec. 189; Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470. 1 rior magistrate liable where he has in good faith acted under a statute afterwards held unconstitutional; but the severity of this rule has called forth forcible dissent, inasmuch as the magistrate, when called upon to act under it, is obliged impliedly if not expressly to pass upon its validity, thus clearly exercising judicial powers, for an error in which he ought not to be held liable.' 1 Kelly . Bemis, 4 Gray (Mass.) 83, 64 Am. Dec. 50; Ely v. Thompson. 8 A. K. Marsh (Ky.) 70. In the case first cited, BIGELOW, J., said: "The defendant in the present case seeks to justify the tort charged in the declaration by proof that he acted as a magistrate in the performance of certain duties under statute of 1852, c. 322, sec. 14. But that section of the statute has been adjudged to be unconstitutional and void: Fisher o. McGirr, 1 Gray 1, (61 Am. Dec. 381.) It therefore conferred no authority or jurisdiction upon magistrates. Under a government of limited and defined powers, where, by the provisions of the organic law, the rights and duties of the several departments of the government are carefully distributed and restricted, if any one of them exceeds the limits of its constitutional power, it acts wholly without authority itself, and can confer no authority upon others. The defendant could derive no power or jurisdiction from a void statute. therefore acted without any jurisdic tion; and upon familiar and wellsettled principles is liable in this action: Fisher v. McGirr, supra; Piper He . Pearson, 2 Gray 120 (61 Am. Dec. 438); Clarke v. May, Id. 410 (61 Am. Dec. 470)." See also Sumner v. Beeler, 50 Ind. 341, 19 Am. Rep. 718; Astrom v. Hammond, 3 McLean (U. S. C. C.) 107; Woolsey v. Commercial Bank, 6 McLean 142; Osborn v. Bank, 9 Wheat. (U. 8.) 738, 868; Meagher v. Storey County, 5 Nev. 244; Campbell v. Sherman, 35 Wis. 103. In speaking of this case in Henke v. McCord, 55 Iowa 378, 385-a case involving the liability of a justice who had proceeded under an ordinance which the court now declares voidDAY, J. said: "This is the only case which we have found that goes to this extreme length, and the doctrine, notwithstanding the learning and ability of the court by which it was pronounced, does not meet our approval. When the information was presented to the justice in this case all the matters pertaining to his right to issue a warrant were properly brought within his jurisdiction. He was called upon to exercise judicial powers. If the ordinance was valid, it was his duty to issue a warrant. A refusal to do so would be a disregard of the obligations imposed upon him by his office. He could justify his refusal only upon the ground that the ordinance was invalid. He was thus called upon to pass judicially upon the validity of the ordinance. In making this determination he acted strictly within his jurisdiction. An erroneous decision upon the subject is a mere mistake in judgment for whcih he ought not to be held respon. sible. If a judge of a circuit or a district court had committed a like error, it would hardly be claimed that he would be liable to a civil action. There is neither reason nor justice, it § 632. Same Subject-Limitations on Liability of inferior Officer for Error in assuming doubtful Jurisdiction.-Under the strict rule above referred to, as will be seen from the cases cited in the note, it is held that the justice or other inferior magistrate is liable for a jurisdiction wrongfully assumed or for proceeding without jurisdiction, even though he was called upon to decide whether the preliminary facts, complaint or affidavit were sufficient to confer jurisdiction and acted in good faith in deciding that they were.1 This doctrine has, however, met with much forcible and reasonable dissent in recent times. There are undoubtedly cases in which the rule stated is properly applicable, as where jurisdiction is assumed or exercised without even the color of authority, or beyond limits which are clearly and unambiguously defined, or in the face of express statutory prohibitions. But where, on the other hand, the officer has jurisdiction of the subject-matter, i. e., of that class of cases, but the question of jurisdiction in that particular case depends upon some question for judicial determination, as upon the validity or proper construction of a doubtful statute, or upon the technical legal sufficiency of the averments of a preliminary complaint or affidavit, or the existence of jurisdictional facts, questions upon which he is bound to decide, and questions, too, upon which, as is often the case, the learned judges of the courts of last resort are unable to agree,—it certainly seems not only impolitic, but a violation of the well established principle governing the liability of judicial officers, to hold the inferior officer liable, at any rate where he has acted in good faith and with an honest endeavor to do the right." seems to us, in holding a justice of the peace liable to a civil action for such an error in judgment.” See also Sessums v. Botts, 34 Tex. 334; State v. McNally, 34 Me. 210, 56 Am. Dec. 650. 'It is said to be no protection that the inferior court in good faith decides that the law confers jurisdiction. Wingate v. Waite, 16 M. & W. 739; Houlden v. Smith, 14 Q. B. 841; Piper v. Pearson, 2 Gray (Mass.) 120, Indeed, it is difficult to see why in this, as in any other case of judicial action, the question of immunity should not be decided regardless of the motive alleged. Such, as has been seen, is the rule applied to judges of superior courts, and the same rule has in recent cases been extended to the case of inferior magistrates. Thus in an action against a justice of the peace for an unlawful imprisonment, the Court of Errors and Appeals of New Jersey held him not liable, though he had erroneously issued a warrant, by virtue of which the plaintiff was arrested, upon a complaint which stated no offense known to the statute.' After reviewing the cases, BEASLEY, C. J., says "that the true general rule with respect to the actionable responsibility of a judicial officer having the right to exercise general powers, is that he is so responsible in any given case belonging to a class over which he has cognizance, unless such case is by complaint or other proceeding put at least colorably under his jurisdiction. Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to the person affected by his decision, whether such decision be right or wrong. But when no facts are present, or only such facts as have neither legal value nor color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not, in any manner, the performance of a judicial act, but simply the commission of an unofficial wrong. complaint or affidavit is sufficient to confer jurisdiction, and is not liable for an error in this respect. Bocock . Cochran, 32 Hun (N. Y.) 521; Harrison v. Clark, 4 Hun 685; Stewart . Hawley, 21 Wend, (N. Y.) 552; Harman v. Brotherson, 1 Denio (N. Y.) 537; Clark v. Holdridge, 58 Barb. (N.Y.) 61; Kenner v. Morrison, 12 Hun 204; Clark r. Spicer, 6 Kans. 440. 1 Grove v. Van Duyn, 44 N. J. L. 654, 42 Am. Rep. 648, n. To the same effect are McCall v. Cohen, 16 S. C. 445, 42 Am. Rep. 641; Henke. McCord, 55 Iowa 378; Maguire v. Hughes, 13 La. Ann. 281; This criterion seems a reasonable see also, per MARCY, J.,in Savacool v. Boughton, 5 Wend. 172, 21 Am. Dec. 181; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80, is an interesting and valuable case upon the general question. The same principle was also ap plied in Jordan v. Hanson, 49 N. H. 199, 6 Am. Rep. 508, where a justice of the peace was held not liable for erroneously refusing to grant an ap peal, it being a question for him to determine whether the right existed, and, if so, whether it was demanded in due time and form. See also Bailey v. Wiggins, 5 Harr, (Del.) 462, 60 Am. Dec. 650. |