The error which vitiates the argument above outlined was implied in the celebrated illustration which Judge Lacombe inserted in his written opinion in the American Tobacco case when that case was decided in the United States Circuit Court for the Southern District of New York. That illustration was as follows:

"Two individuals who have been driving rival express wagons between villages in two contiguous states who enter into a combination to join forces and operate a single line restrain an existing competition."

The judge was right in making that statemen, but he was wrong in implying that that restraint of competition would constitute a restraint of trade, or would result in a restraint of trade, and would therefore violate the letter of the Sherman law. For the case stated would not restrain trade at all. Indeed, it would promote trade by enabling one of the expressmen to manage both, wagons whenever the other expressman fell sick or was temporarily incapacitated by collision with an automobile or a street car. If the two expressmen, after making their combination, were to double their prices for transporting goods across the state line, and were thus to extort money from their customers by means of their combination, they would then and thereby restrain interstate trade, and would violate the Sherman law by so doing. But that extortion would be plainly nonethical, and could not morally claim exemption from the scope of that statute. So also if the two expressmen after making their combination were to reduce their prices for transporting goods across the state line to onehalf of their previous rates, and were to do this for the purpose and with the result of compelling a third expressman to sell his horse and wagon to them for whatever they chose to give, and thus enable them

to monopolize the business and afterwards. advance their prices again, they would then restrain interstate trade in that way, and would violate the Sherman law by so doing. Such conduct would not, in the first instance, constitute restraint of competition, but would be a plain case of excessive competition, while also being an undeniable case of restraint of interstate trade, and would be so plainly nonethical as to constitute an undeniable violation of the Sherman law.

The foregoing examples of radical differences between restraint of trade and restraint of competition, are simple illustrations of certain generally recognized and undeniable parts of the science of political economy. The fact that they were entirely overlooked by Judge Lacombe when he wrote his celebrated obiter dicta in the American Tobacco case, and were again entirely overlooked by Chief Justice White when he wrote his Standard Oil and American Tobacco obiter dicta, is to be accounted for by reference to the fact that no such subject was argued in court in either of those cases, and by the fact that Judge Lacombe and Chief Justice White were so largely occupied with other cases at the time they composed their respective obiter dicta, that they did not themselves recall to mind those parts of the science of political economy, and did not have time to reason them out, as original thinkers in that science.

This interesting instance of able judges, when unaided by arguments of counsel, writing obiter dicta that cannot stand critical examination, but illustrates anew something which has been understood by many generations of English and American lawyers, when they have realized and asserted the unreliable character and legal insignificance of the obiter dicta of judges.

The Constitution of the United States imposes the law-making responsibility of the nation upon the Congress of the United States. The Congress of the United States carries the responsibility by means of the enactment of statutes which, before they are enacted, are the subjects of public debates between very able men in each of the two Houses of Congress. The Sherman law was the product of such debates, conducted day after day during weeks, between great lawyers in the Senate, followed by other such debates, conducted day after day through other weeks, between great lawyers in the House of Representatives. During those debates many conflicting propositions were advocated and defended; but the result of the intellectual contributions and intellectual conflicts of the great men of the Fifty-first Congress was an agreement so nearly unanimous that when the final draft of the Sherman law was submitted to yea and nay vote in the Senate, the vote of Senator Blodgett, of New Jersey, was the only one given in the negative; and when the same draft was finally submitted to a yea and nay vote in the House, every one of the more than 250 members present voted in the affirmative.

If the Sherman law, thus debated and thus enacted by Congress, with the approval of the President of the United States, could be changed by means of any limitation upon its pivotal words inserted in the statute by implication as a result of secret deliberations of the nine justices of the Supreme Court, an instance would be presented of a law being framed to govern a nation of 90,000,000 of people by nine gentlemen, sitting in their private chamber, unadvised by other thinkers and unguided by the crucial test of public debates; and those nine gentlemen, if asked to show their authority for thus prescribing rules of civil conduct to a mighty nation, would not be able to indicate where in the Constitution of the United States any such authority is expressed or implied.

New York, N. Y.

ALBERT H. WALKER.

SHERIFFS AND CONSTABLES-ACTION ON

BOND.

INMAN v. SHERRILL et al.

Supreme Court of the State of Oklahoma.

(Filed 9th day of May, 1911.)

Where an officer, while doing an act within the limits of his official authority, exercises such authority improperly, or exceeds his official powers, or abuses an official discretion vested in him, he becomes liable on his official bond to the person injured. But where he acts without any process and without the authority of his office, in doing such act. he is not to be considered an officer, but a personal trespasser.

KANE, J.: This was an action commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below. The petition alleges, in substance, that the defendant Sherrill is a constable for and in Okmulgee Township, Okmulgee County, and the defendants, J. T. McCracken and Lin Alexander are sureties upon his official bond, which bond was in the sum of $1,000. The plain ff claimed damages on account of an injury Dflicted upon him by the defendant Sherrill. The sureties and the principal separately demurred to plaintiff's evidence, which demurrers were by the court overruled, whereupon the defendants undertook to produce evidence to show that the constable was acting under the writ, all of which was objected to by attorneys for the plaintiff in so far as the evidence offered tended to prove the writ; thereupon counsel for the defendants moved to strike all the evidence introduced upon behalf of defendants, which motion was by the court sustained, whereupon they renewed their separate demurrers to the evidence, which demurrers were sustained. To reverse the order of the court sustaining defendants' demurrers to error was the evidence, this proceeding in

commenced.

The demurrers to the evidence were sustained upon the ground that the plaintiff did not show that the officer was acting under legal process, or that there was cause for arrest without warrant, but proved merely a naked trespass, for which no action upon the bond will lie. This proposition of law seems to have been decided by the supreme court of the territory of Oklahoma in accordance with the ruling of the court below in at least two

cases. Dysart, et al. v. Lurty et al., 3 Okla. 601 Lowe et al. v. City of Guthrie, 4 Okla. 287. Dysart et al. v. Lurty, supra, was an action to recover damages upon the official bond of the United States Marshal for Oklahoma. It was held that, "Where an officer, while doing an act within the limits of his official authority, exercises such authority improperly, or exceeds his official powers, or abuses an official discretion vested in him, he becomes liable on his official bond to the person injured. But where he acts without any process and without the authority of his office, in doing such act, he is not to be considered an officer, but a personal trespasser." Lowe et al. v. City of Guthrie, supra, was an action by the city of Guthrie against E. F. Millikan, clerk of said city, and the sureties on his official bond, to recover for moneys collected by said Millikan during his term of office as clerk. It was held that, "Sureties on official bonds are liable only for acts of the principal done virtute officii, and not for acts done colore officii." Counsel for plaintiff in error in their brief admit that Dysart v. Lurty, supra, is against them, but contend that it is by no means a recent case, and that whilst it might have been said at the time of its rendition that it was sustained by the weight of authority, of late years the courts have been swinging away from the old rule. Judging from the briefs of counsel for the respective parties, we would say that the authorities are pretty evenly divided, but even if the preponderance slightly in favor of the contention of plaintiff in error, we would not feel disposed to upset a doctrine that has been so long established in this jurisdiction by two well-considered opinions. The doctrine of stare decisis owes its origin and observance to the recognition of the necessity for stability and uniformity in the construction and interpretation of the law. Where a series of decisions of a court of last resort have been accepted and acted upon as the proper interpretation of the law for a long time, courts are slow to interfere with principles announced in the former decisions and often uphold them, even though they would decide otherwise, were the question a new one. 26 Am. & Eng. Enc. of Law, p. 160. Another decision in harmony with the rule laid down, supra, is Chandler v. Rutherford, 101 Fed. 774, decided by the circuit court of appeals, eighth circuit-whose opinions prior to statehood were binding upon the courts of the Indian Territory and have always been given great weight in this jurisdiction. In that case the Assistant United States Attorney informed one Dave Adams, a deputy marshal, that there was reasonable ground to believe that Flave Carver had stolen a horse, and it

was

was believed that Flave Carver was in the vicinity of Muskogee. Adams and others went to arrest Carver, coming upon him on the streets of Muskogee, fired upon and wounded him, after twice calling to him to stop, and without further proclamation of their character. In the action for damages against the marshal and his bondsmen, speaking of the question now under consideration, Judge Thayer, who delivered the opinion of the court, said:

"To constitute color of office such as will render an officer's sureties liable for his wrongfu acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity. If he is armed with no writ, or if the writ under which he acts is utterly void, and if there is at the time no statute which authorizes the act to be done without process, then there is no such color of office as will enable him to impose a liability upon the sureties in his official bond."

The judgment of the court below is affirmed. All the justices concur.

NOTE-Acts Done Virtute Officii and Those Colore Officii, with Respect to Liability Upon Official Bonds.-In Towle v. Matthews. 130 Cal. 574, 62 Pac. 1064, the Supreme Court of California held that the sureties of a constable were liable where there was unnecessary force used in overcoming resistance of one arrested for committing a breach of the peace in the presence of an officer. The court, however, labored considerably in affirming this case to get rid of a finding that in overcoming such resistance the constable "willfully shot plaintiff in the back," concluding finally that the word should not be taken in its technical sense as meaning that the act was malicious or with wicked intent.

The inference is that were it to be so taken, it would be an act, which, though performed in the overcoming of such resistance, would be the personal act of the principal not binding on the sureties, that is, "malicious or extra-official."

A later case Gomez v. Scanlan, 2 Cal. App. 579, 84 Pac. 50, by a California court subordinate to the supreme court held the sureties of a constable liable where the complaint alleged that under a search warrant an arrest and imprisonment was "malicious and by force and threats of violence."

The court said: "When an officer performs an act in strict accordance with the directions of a valid writ and in the line of his official duty, neither he nor his sureties are responsible. If he willfully performs such act without any valid process and outside his official duty, he alone is responsible in damages. If he has in his possession a valid writ or order, and claiming or even believing that he is acting within the scope of such writ or order, performs an illegal or unauthorized act as to the party against whom the writ or order runs, or as to a third

party, then he is liable and also his sureties to the extent of his bond."

This case seems to care nothing about the personal malice of the officer, but, if he is claiming to act at all in pursuance to the writ, the sureties are liable.

We imagine it is not intended to say, that, in cases where no warrant is needed for an arrest, his sureties would not be liable, but this would be just as in cases where a valid warrant precedes any official act on his part.

This case was affirmed by California Supreme Court. See Gomez v. Scanlan, 155 Cal. 528, 102 Pac. 12 and it was said that an instruction for a verdict against the sureties, if Scanlan was guilty of a false imprisonment of Mrs. Gomez "while acting in his capacity of constable of the 11th township" was free from ambiguity and correct as a legal principle. Therefore the distinction between acts virtute officii and colore officii would seem to be not recognized.

In State ex rel Bruns v. Clausmeier, 154 Ind. 599, 57 N. E. 541, 50 L. R. A. 73, 77 Am. St. Rep. 511, it was sought to hold the sureties of a sheriff liable for the publication of pictures of plaintiff with "Rogues' Gallery" written on the reverse side. The court said: "Conceding, without deciding, that, if a sheriff commit an assault and battery upon a person in his custody, or fails to use ordinary care to protect him from violence from others, he and his sureties are liable on his official bond to such person therefor, yet it does not follow that a sheriff and his sureties are liable on his official bond for libelous words published by said sheriff of and concerning a person in his custody. *** A person who is a sheriff, in speaking or writing such language under such circumstances, is not guilty of any misfeasance or nonfeasance as such officer. It is evident that said Clausmeier, in sending said photographs with the writing on the backs thereof, was not acting either virtute officii or colore officii."

The first part of this extract makes it seem that the sureties might be responsible for the sheriff compelling one to have his photograph taken, but not for the consequences contemplated by the sheriff to arise out of such compulsion. The sending out of the photographs, it seems to us, was carried back to the compulsion by the intent existing at the time of the compulsion. It was not libel as libel that was to be considered, but libel as part and parcel of the compulsion inflicted on the plaintiff. The compulsion would have been a very negligible wrong but for the intent that accompanied it. The court considered the publication, etc., as an independent act, when it was not. If the sheriff had found the photograph and sent it out, that would have been an independent act.

In Indiana the rule has been held to be, that there is no legal distinction between acts virtute officii and colore officii, where an arrest is made and the party is treated by the officer in an unlawful way. State v. Walford, 11 Ind. App. 392. The Bruns case seems not to deny this, but evidently considered the alleged libel as being wholly dissociated in point of time and intent from the act of arrest, or with any official responsibility to a prisoner.

In Illinois there seems a like disappearance of the distinction in virtute officii and colore officii as well as between willfulness and mere wrongfulness. Cash v. People, 32 Ill. App. 250. In Brown v. Weaver, 76 Miss. 7, 71 Am. St. Rep. 512, the distinction between virtute officii and colore officii appears also to be regarded insubstantial, if not actually non-existent, and Murfree on Sheriffs, Sec. 60, is quoted in its quotation from Knowlton v. Bartlett, 1 Pick. 273, that the test is between an official act and a personal act, and an official act means "whatever is done under color or by virtue of his office." It is said his sureties "vouch for his acts and bind themselves to make good any damage he may cause to anyone while acting under color of his office." The Brown case also claims that Robertson v. Siebel, 127 U. S. 515, which held there was no responsibility of a sheriff's sureties for the act of a deputy, which it would be "utterly impossible for the superior officer to discharge in person," is to be distinguished, because the case admits they would be responsible "for the act of the deputy performed in the ordinary line of his official duty prescribed by law."

State ex rel v. Meyer. 138 Mo. App. 507, 120 S. W. 116 shows an action upon the bond of a constable for suing out a warrant charging plaintiff with resisting the constable in the service of an execution, the prosecution ending in plaintiff's favor. The swearing out of the warrant was alleged to be malicious and both actual and punitive damages were asked for in the suit on the bond. St. Louis Court of Appeals affirmed the judgment sustaining a demurrer to the petition, Reynolds, P. J., saying: "We are unable to find any law, statutory or common. that imposes on a constable the duty of making affidavits against parties who have resisted the service of process. In a case of resistance of service of process it is within the power of the constable to arrest the party in some cases, and, if he made the arrest maliciously and without probable cause but under color of his office as constable, he and his sureties might be responsible on his official bond." The judge also said that in making this affidavit it could not be conceived how the constable was acting in any other way than in his individual capacity. The court, however, seems to think that an act "under color of office" is all that is needed to fix liability on the sureties and that personal malice entered into its perpetration in no wise derogated from the act being under color of office.

We find quite a recent case by Kentucky Court of Appeals much resembling the principal case, in which liability of sureties was adjudged. Martin v. Smith, 125 S. W. 249. The facts show that a town marshal was attempting to arrest one Charley Martin. Demps Martin and others were standing by and the marshal thought that Demos and the others intended to interfere, but in fact they did rot. In a difficulty over the arrest, the marshal shot Charley and while still holding to him turned and shot Demps, inflicting a mortal wound. After alluding to the lawfulness or not, of the attempted arrest of Charley, as a question of fact, the court said: "But whether the officer acted in excess of his legal authority in what he did, including the shooting of Demps Martin, was the question to be tried."