in deciding upon the letting of contracts, or the approval of liquor bonds, or in deciding a building to be a nuisance and ordering its destruction; county commissioners in deciding upon an application for a permit to sell intoxicating liquors; supervisors in deterinining upon the sufficiency of an officer's bond and whether, by failing to file a new bond required by them, he has forfeited his office; pilot officers in deciding that a pilot was no longer authorized to act as such and therefore revoking his license; commissioners authorized to straighten a river to prevent inundations; inspectors of election and boards of registration' in deciding upon the existence of the necessary qualifications of a voter; notaries in taking and certifying acknowledgments; inspectors of provisions in deciding upon

10

7

East River Gas L. Co. v. Donnelly, 25 Hun (N. Y.) 614 s. c. 93 N. Y. 557.

2 Amperse. Winslow, 75 Mich. 234, 43 N. W. Rep. 823.

'Pruden v. Love, 67 Ga. 190.

State v. Commissioners, 45 Ind. 501.

People. Supervisors, 10 Cal. 344, 346.

Downer v. Lent, 6 Cal. 94, 65 Am. Dec. 489.

1 Green v. Swift, 47 Cal. 536.

Bevard v. Hoffman, 18 Md. 479, 81 Am. Dec. 618; Friend v. Hamill, 34 Md. 298; Elbin v. Wilson, 33 Md. 135; Anderson v. Baker, 23 Md. 531; Gordon . Farrar, 2 Doug. (Mich.) 411; Jenkins v. Waldron, 11 Johns. (N.Y.) 114, 6 Am. Dec. 359; Goetcheus v. Matthewson, 61 N. Y. 420; Weckerley v. Geyer, 11 S. & R. (Penn) 35; Morgan v. Dudley, 18 B. Mon. (Ky.) 693, 68 Am. Dec. 735; Caulfield v. Bullock, 18 B. Mon. 495; Chrisman v. Bruce, 1 Duval (Ky.) 63, 85 Am. Dec. 603; Miller v. Rucker, 1 Bush (Ky.) 135; Carter v. Harrison, 5 Blackf. (Ind.) 138; Rail v. Potts, 8 Humph. (Tenn.) 225; Wheeler . Patterson, 1 N. H. 88, 8

Am. Dec. 41; Peavey v. Robbins, 3 Jones (N. C.) L. 339; Fausler v. Parsons, 6 W. Va. 486, 20 Am. Rep. 431; State v. McDonald, 4 Harr. (Del.) 555; State v. Porter, 4 Harr. 556; Patterson v. D'Auterive, 6 La. Ann. 467, 54 Am. Dec. 564; Dwight . Rice, 5 La. Ann. 580; Bridge v. Oakey, 2 La. Ann. 968; Keenan v. Cook, 12 R. I. 52; Ashby v. White, 2 Ld. Raym. 938.

A different rule prevails in Massachusetts and Ohio, although the offlcers have acted in good faith; Lincoln v. Hapgood, 11 Mass. 350, 355; Kilham v. Ward, 2 Mass. 236; Capen v. Foster, 12 Pick. 485, 23 Am. Dec. 632; Henshaw v. Foster, 9 Pick. 312; Keith v. Howard, 24 Pick. 229; Blanchard v. Stearns, 5 Metc. 299; Larned . Wheeler, 140 Mass. 390, 54 Am. Rep. 483; Jeffries v. Ankeny, 11 Ohio 372; Anderson v. Millikin, 9 Ohio St. 568; Monroe v. Collins, 17 Ohio St. 665.

See also Murphy v. Ramsey, 114 U. S. 15.

Fausler v. Parsons, 6 W. Va. 486, 20 Am. Rep. 431.

10 Henderson v. Smith, 26 W. Va. 829, 53 Am. Rep. 139; Commonwealth

their fitness and quality;' boards of health in examining and deciding upon nuisances and the sources of disease; boards of prison commissioners in deciding to annul a contract; wardens and inspectors of prisons in their action in permitting convicts to go at large.

3

§ 640. Same Subject-Whether Liability affected by Motive. -This immunity from liability where the officer has acted in good faith and with honest motives is unquestioned, as will be apparent from the cases cited in the foregoing section. But when the question arises whether he can be held liable if it is alleged that he was actuated by wilful, corrupt or malicious motives, a field of great uncertainty and confusion is to be entered.

There are certainly many cases which assume that under such circumstances no immunity exists, and many others which hold that an action can not be maintained without proof of an improper motive; but the cases in which this precise question was directly involved and which hold that the action can be maintained because of the existence of the motive are few, and are

v. Haines, 97 Penn. St. 228, 39 Am. Rep. 805. But see upon this subject the fuller treatment, post § 703 et seq.

1 Fath v. Koeppel, 72 Wis. 289, 7 Am. St. Rep. S67; Seaman v. Patten, 2 Caines (N. Y.) 312. Contra Hayes v. Porter, 22 Me. 371; Nickerson v. Thompson, 33 Me. 433.

See, in full, post § 702.

Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3; City of Salem v. Eastern R. R. Co., 98 Mass. 431, 96 Am. Dec. 650.

3 Porter v. Haight, 45 Cal. 631,

Schoettgen v. Wilson, 48 Mo. 253. See thus Dillingham v. Snow, 5 Mass. 547; Easton v. Calendar, 11 Wend. (N. Y.) 90; Macklot v. Davenport, 17 Iowa 379; Muscatine, &c. R. R. Co. v. Horton, 38 Iowa 33; Walker v. Hallock, 32 Ind. 239; Williams v. Weaver, 75 N. Y. 30; Wilson v. Marsh, 84 Vt. 352; Rowe v. Addison, 34 N. H. 306; Waldron v. Berry,

51 N. H. 136; Adams v. Richardson, 43 N. H. 212; McOsker v. Burrell, 55 Ind. 425; Spitznogle v. Ward, 64 Ind. 30; Burton v. Fulton, 49 Penn St. 151; Stewart v. Southard, 17 Ohio 402, 49 Am. Dec. 463; Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256; Gotcheus . Matthewson, 61 N. Y. 420; Miller v. Rucker, 1 Bush (Ky.) 135; Carter v. Harrison, 5 Blackf. (Ind.) 138; Rail v. Potts, 8 Humph. (Tenn.) 225; Peavey v. Robbins, Jones (N. C.) L. 339; Keenan v. Cook, 12 R. I. 52; Bevard v. Hoffman, 18 Md. 479, 81 Am. Dec. 618; Edwards v. Fergu son, 73 Mo. 686; Reed v. Conway, 20 Mo. 22; Raynsford v. Phelps, 43 Mich. 842, 38 Am. Rep. 189; Gregory v. Small, 39 Ohio St. 346; Morrison v. McFarland, 51 Ind. 206; McCormick v. Burt, 95 Ill. 263, 35 Am. Rep. 163; Dritt. Snodgrass, 66 Mo. 286, 27 Am. Rep. 343; Henderson v. Smith, 26 W. Va. 829, 53 Am. Rep. 138.

chiefly those growing out of the denial of the elective franchise.'

So discriminating a writer as Mr. Bishop recognizes the distinction, saying that "from the ground on which this doctrine rests, it follows that, if the quasi-judicial act is corrupt it will not be protected."

But, on the other hand, the distinction has been expressly repudiated in many well considered cases in which it was directly called in question.

Thus it has been held that an arbitrator can not be held liable

in a civil action for damages for an award alleged to have been made by him fraudulently and corruptly;' nor a grand juror for conduct as such alleged to have been wilful and malicious;' nor a pilot commissioner for wrongfully and maliciously revoking a pilot's license; nor members of a common council for wilfully and corruptly refusing to accept the plaintiff's bid for doing public work; nor members of a board of registration for erasing the plaintiff's name from the list of registered voters, though it was alleged to have been done "wilfully, unlawfully, knowingly, inaliciously and corruptly," the board having complied with all the requirements of the statute necessary to give them jurisdic tion; nor assessors who are alleged to have wilfully and corruptly refused to allow the plaintiff an exemption from taxation to which he was entitled; nor a member of a common council

5

Jones v. Brown, 54 Iowa 74, 37 Am. Rep. 185.

2 Turpen v. Booth, 56 Cal. 65, 38 Am. Rep. 48. The court cite and rely upon Weaver v. Devendorf, 3 Denio (N. Y.) 120, 121; Bradley v. Fisher, 13 Wall. (U. S.) 335, and Downer v. Lent, post.

3 Downer v. Lent, 6 Cal. 94, 65 Am. Dec. 489.

East River Gas Light Co. v. Donnelly, 93 N. Y. 557, affirming 25 Hun 914. In this case, DANFORTh, J., said that it is "the well settled rule of law that no public officer is responsible in a civil suit for a judicial determination, however erroneous or wrong it may be, or however malicious even the motive which produced it."

5 Fausler. Parsons, 6 W. Va. 486, 20 Am. Rep. 431.

• Weaver v. Devendorf, 3 Denio (N. Y.) 117. In this case the court per BEARDSLEY, J., said: "The act complained of in this case was a judicial determination. The assessors were judges acting clearly within the scope and limit of their authority. They were not volunteers, but the duty was

imperative and compulsory; and, acting as they did, in the performance of a public duty, in its nature judicial, they were not liable to an action, however erroneous or wrongful their determination may have been. This case might be disposed of on narrow ground, for there was no evidence to justify the conclusion that the defendants acted maliciously in fixing the value of the property of the plaintiff or of any one else; and surely it will not be pretended they were liable for a mere error of judgment. But I prefer to place the decision on the broad ground that no public officer is responsible in a civil suit for a judicial determination, however errone. ous it may be, and however malicious the motive which produced it. Such acts, when corrupt, may be punished criminally, but the law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of a judicial duty. The rule extends to judges from the highest to the lowest; to jurors and to all public officers, whatever name they may bear, in the exercise of judicial pow

for "wilfully, wrongfully and maliciously and well knowing his duty" refusing to vote for the approval of a liquor bond.'

These cases are believed to follow the better and the safer rule. If the action is really judicial, the immunity which adheres to judicial action should be applied whether the officer sits upon the bench of a regularly established court or not. As has been said, if the action can be maintained by the allegation of improper motives, no litigant will fail to allege that they existed, and the public officer may constantly be called upon to defend himself from actions at law brought with motives fully as malicious as those which are asserted to have inspired him. Public policy, it is believed, requires that all judicial action shall be exempt from question in private suits.

§ 641. Same Subject-Officer must keep within his Jurisdiction.-But in order to render the quasi-judicial officer exempt, he must, like the judicial,3 keep within the limit, fixed by law, of his jurisdiction; for if he exceeds it, except as the result of a mistake of fact, he will be liable to the party injured."

6

Illustrations of this liability may be found in the cases in which an assessor has undertaken to tax persons or property not within his jurisdiction, or election officers have insisted upon other proof of qualification than that which the law declared sufficient, or highway officers have undertaken to do a thing prohibited by law."

As to the rule which should apply in the case of a quasi-judicial officer who is called upon to decide from the facts presented

er." Followed in Brown v. Smith, 24 Barb. (N. Y.) 419.

The rule here laid down was also approved in Wisconsin: Steele v. Dunham, 26 Wis. 393.

Amperse v. Winslow, 75 Mich. 234, 42 N. W. Rep. 823.

2 Bradley v. Fisher, 13 Wall. (U. 8.) 335.

See ante, § 624.

As to which, see ante, § 634.

Freeman . Kenney, 15 Pick. (Mass.) 44; Gage v. Currier, 4 Pick. 399; Suydam v. Keys, 13 Johns. (N. Y.) 444; Mygatt v. Washburn, 15 N.

Y. 316; Hays v. Steamship Co. 17
How. (U. S.) 596; Williams v.
Weaver, 75 N. Y. 30; Goetcheus v.
Matthewson, 61 N. Y. 420.

6 Freeman v. Kenney, 15 Pick. (Mass.) 44; Gage v. Currier, 4 Pick. (Mass.) 399; Suydam v. Keys, 13 Johns. (N. Y.) 444; Mygatt v. Washburn, 15 N. Y. 316.

7 See post, § 695

8 Adams v. Richardson, 43 N. H. 212, as explained in Waldron v. Berry, 51 N. H. 136. See also Rowe v. Addison, 34 N. H. 306; Sawyer v. Keene, 47 N. H. 173.