is not a check. As an instrument for checking unconstitutional action on the part of the President, impeachment has been found too cumbersome. If, in the case of the extreme opposition and contest between both Houses of Congress and President Johnson, an impeachment was not successful, it must be admitted that as a means of future restraint upon the Chief Executive it will not be greatly feared.

That the President and all other officers of the government have not the right to refuse obedience to a judgment of the Supreme Court, because he or they believe such judgment to be based upon an incorrect interpretation of the Constitution, scarcely needs argument. This case is stronger than the former one by the additional support of the judiciary. To refuse now to execute the command of the court is to assume the judicial power of a court of appeals as well as legislative functions.

§ 768. Liability of the State for the Acts of Its Officers.

The doctrine of the non-suability of the State prevents the prosecution of a claim against the United States, whether that claim be founded upon a tort of one of its agents, or is one arising out of a contract.

"No government," says the Supreme Court in Gibbons v. United States52"has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents. It does not undertake to guarantee to any person the fidelty of the officers whom it employs, since that would involve it in all its operations in endless embarrassments, and difficulties, and losses which would be subversive of the public interests; . . The general principle which we have already stated as applicable to all governments, forbids, as a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizens though occurring while engaged in the discharge of official duties." 53

52 8 Wall. 269; 19 L. ed. 453.

53 See also Dooley v. United States, 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074, and authorities there cited.

§ 769. Legal Liability of Public Officials to Private Individuals Injured by Their Acts; Ultra Vires Acts.

As has elsewhere been shown in this treatise, a fundamental principle of American law is that the legality of acts of public officers is determined in the ordinary courts according to the same rules that govern the decision of suits between private individuals. Thus, generally speaking, no officer can defend an ultra vires or otherwise illegal act by setting up his official position or exhibiting the command of a political superior. This last statement as to the non-applicability of the principle of respondeat superior is, however, subject to this qualification, that the order of an administrative superior, prima facie legal, though in fact not legal, may be set up in defense of an act commanded by military supericrs. In Re Fair, decided in 1900, the court say: 54 "The law is that an order given by an officer to his private, which does not expressly or clearly show on its face its illegality, the soldier is bound to obey; and such order is his full protection. The first duty of an officer is obedience, and without this there can be neither discipline nor efficiency in an army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them valid or invalid, the precious moment for action would be wasted. Its law is that of obedience. No question can be left open of the right to command in the officer, or of the duty of obedience in the soldier. While I do not say that the order given. . . to the petitioners was in all particulars a lawful order, I do say that the illegality of the order, if illegal it was, was not so much so as to be apparent and palpable to the commonest understanding. If, then, the petitioners acted under such order in good faith, they are not liable to prosecution." 55

The result of the doctrine thus stated is, as will be seen, that an act is defended for the performance of which in fact no legal authority can be produced. Simply the color of authority on the

54 100 Fed. Rep. 149.

55 Cf. Wyman, American Administrative Law, § 2.

part of the superior giving the command is held a sufficient defense. Clearly common justice, and the practical necessities of administration justify the rule, yet, inasmuch as it does in fact protect an act essentially illegal, the doctrine is one that is kept within the narrowest possible bounds. Only where there is present no fact which would put the subordinate, as a man of ordinary intelligence, upon his guard, or where the practical necessities of the case leave little or no opportunity for individual judgment in the matter, should the rule be applied. In all other cases, it is to be repeated, the public official is able to defend his act only by showing some existing legal authority for it.

58

The necessities of the case require the foregoing doctrine, with reference to the military arm of government. There not being the same urgency for immediate obedience, the doctrine does not prevail in civil matters. Thus, in Hendricks v. Gonzales the order of the Secretary of the Treasury to the Collector of the Port of New York was held not to exonerate him from liability for an act done under it, the court saying: "The questions presented by the assignments of error seem free from doubt. The plaintiff having complied with the condition entitling him to clearance, it was the duty of the defendant as collector of the port, to grant a clearance for the vessel and her cargo, unless he was justified in refusing to do so by some other statutory authority. Neither the Secretary of the Treasury nor the President could nullify the statute, and though the defendant may have thought himself bound to obey the instructions of the former, his mistaken sense of duty could not justify his refusal of the clearance, and these instructions afforded him no protection unless they were authorized in law."

§ 770. Mandamus to Compel Performance of Commands of Administrative Superior.

As earlier pointed out, where the performance of a ministerial duty is commanded by an administrative superior, mandamus will 56 67 Fed. Rep. 351.

issue to the subordinate compelling obedience thereto.57 Moreover, in very many cases "the neglect or failure of a public officer to perform any duty he is required to perform is an indictable offense even though no damage was caused by the default, and a mistake as to his powers or with relation to the facts of the case is no protection. "58 This criminal liability is, however, as Professor Goodnow observes,59 sometimes difficult of enforcement owing to the fact that the prosecution of all crime is in the hands of a district attorney or other public prosecutor who is closely affiliated with the administration.

§ 771. Responsibility of Officers for Improper Exercise of Authority; Malice, etc.

Thus far we have been considering the criminal and civil responsibility of public officers for ultra vires and otherwise illegal acts. We have now to consider their responsibility to private individuals for acts committed by them within the general scope of their respective authorities, but characterized by undue severity, discrimination, or malice.

In general no officer is held responsible in damages to an individual for non-performance or negligent performance of duties of a purely public or political character.

"In order to be made the basis of a claim for damages, the duty, the neglect of which has caused the damage, must be one which the individual suffering the damage has the right, not as a part of the public, but as an individual to have performed."

60

So long as public officers act within the general sphere of their authority, their legal responsibility to private individuals for the manner in which they act, whether their acts be dictated by malice, or characterized by negligence, is very slight.

A case in which this whole subject is comprehensively treated

57 Page 1164.

58 Amer, and Eng. Encyc, of Law, XIX, 504.

59 Cases on the Law of Officers, p. 519, note.

co Goodnow, American Administrative Law, 402. Cf. Mechem, Law of Officcrs, § 789.

is that of Spalding v. Vilas.1 In this case Spalding had charged that the Postmaster-General had, by the issuance of a circular, maliciously injured his business. The court, after holding that the issuance of the circular had not been beyond the general scope of the official authority of the Postmaster-General, declare that he cannot be subject to suit because his act had been dictated by malice. The court admit that the precise point had not been previously determined in the United States, but that a line of cases, English as well as American, support the doctrine that the higher judicial officers are exempt from responsibility for a malicious exercise of their authority. After an extended review of these cases, the court say:

66

We are of the opinion that the same general considerations 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. The interests of the people require that due protection be accorded to them in respect of their official acts. As in the case of a judicial officer, we recognize a distinction between action taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision. Whatever difficulty may arise in applying these principles to particular cases, in which the rights of the citizen may have been materially impaired by the inconsiderate or wrongful action of the head of a department, it is clear — and the present case requires nothing more to be determined that he cannot be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority, by reason of 61 161 U. S. 483; 16 Sup. Ct. Rep. 631; 40 L. ed. 780.