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 Offi cers, § 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:

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.

any personal motive that might be alleged to have prompted his action, for personal motives cannot be imputed to duly authorized official conduct. In exercising the functions of his office, the head of an executive department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may at any time become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as intrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals. In the present case, as we have found, the defendant, in issuing the circular in question, did not exceed his authority, nor pass the line of his duty as Postmaster-General. The motive that impelled him to do that of which the plaintiff complains is therefore wholly immaterial. If we were to hold that the demurrer admitted, for the purpose of the trial, that the defendant acted maliciously, that could not change the law."

A fortiori it follows from the doctrine declared in Spalding v. Vilas that a public officer acting from a sense of duty in a matter where he is required to exercise discretion, is not liable to an action because of any error of judgment or mistake of fact that he may have made.2

62 In Kendall v. Stokes (3 How. 87; 11 L. ed. 506) the court say:

64

It repeatedly and unavoidably happens, in transactions with the government, that money due to an individual is withheld from him for a time, and payment suspended in order to afford an opportunity for more thorough examination. Sometimes erroneous constructions of the law may lead to a final rejection of a claim in cases where it ought to be allowed. But a public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which

§ 772. Responsibility of Judges of Courts of Superior or General Jurisdiction.

That judges of courts of superior or general jurisdiction are not liable to civil suits for judicial acts, even though maliciously or corruptly done, has already been indicated, the cases in point being reviewed by the court in Spalding v. Vilas. This is true even when the acts done are in excess of their jurisdiction, provided it appear that this want of jurisdiction is not clear and unmistakable. Where, however, authority is clearly usurped, action will lie. The doctrine as to this is sufficiently shown in the following words from the opinion in Bradley v. Fisher:

63

"Where there is clearly no jurisdiction over the subject-matter any authority exercised is an usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, and proceed to the arrest and

it is his duty to exercise judgment and discretion: even although an individual may suffer by his mistake. A contrary principle would, indeed, be pregnant with the greatest mischiefs. It is unnecessary, we think, to refer tɔ the many cases by which this doctrine has been established. It was fully recognized in the case of Gidley, Exec. of Holland, v. Ld. Palmerston, J. B. Moore, 91; 3 B. & B. 275."

63 13 Wall. 335; 20 L. ed. 646.

trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil actions for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons."