that are imposed primarily for individual benefit, though they may also have an incidental public effect. For example, on the one hand, embezzlement of public funds by an officer; on the other hand, refusal by a sheriff to execute a lawful civil writ. In the former case there is no private right of action, but the remedy is confined to the state; in the latter case, the one specially injured may generally have redress.

It will be of advantage to consider more in detail the acts of various official bodies and persons, in order to ascertain the quality of the acts, and the remedies, if any, that are given.

§ 342. Duties of the legislature. It is obvious that all of the legislature's acts are governmental and discretionary. In their nature, its powers are exercised primarily for the public benefit and only secondarily for private benefit. The legislature as a body can have no ministerial duties to perform. Hence, even though the majority or all of the legislators may in a special instance have acted from malicious and corrupt motives, whereby injury has been caused to an individual, there can be no remedy by private suit.

Subordinate legislative bodies, however, such as municipal councils, are subject to inquiry in the courts at the suit of individuals, in so far as they act corruptly. Such subordinate bodies may furthermore have duties to perform that are merely ministerial; for example, keeping streets in repair. For the wrongful performance or non-performance of such duties, if primarily for individual benefit, they be held liable at the suit of one specially injured.

may

Acts of the legislature in excess of its authority are void, and will be so declared by the courts. Acts of subordinate legislative bodies in excess of authority will not only be declared void, but where special injury has resulted therefrom to an individual, he may have redress.

ors.

§ 343. Executive and administrative duties.The executive power of the United States is vested in the president, and of the several states in the governIn the exercise of their respective executive functions, they are not responsible to the courts, upon the fundamental principle that the three coordinate branches of the government must be independent of each other's control. So long as an act is within the executive power, it can not be reviewed by the courts, no matter whether the motive be malicious and corrupt, and whether it causes special injury to an individual. The only remedy, if any there be, would be by way of impeachment.

Inferior officers charged with duties to carry into effect the laws are usually called administrative officers. The protection to such officers acting within their powers extends only to their errors. If such an officer acts corruptly or maliciously, he may be held liable to civil suit by an individual injured.

Any executive or administrative officer may be charged with the performance of duties that are merely ministerial. As to such duties, the officer is subject to the control of the courts by the writ of mandamus, or may be held liable for damages to an individual specially injured.

Whenever an officer acts in excess of his authority,

he to that extent incurs all the responsibility of an individual.

§ 344. Judicial duties.-Judicial acts necessarily involve the exercise of judgment or discretion. For such acts there is complete and absolute immunity from civil suits. So long as they act within their jurisdiction, judges can not be held liable civilly, however gross the error may be, or however corrupt and malicious the motive that inspires the act. This is now the well settled law, older cases affirming a contrary doctrine having been overruled. The rule applies with equal force to courts of special and limited jurisdiction, as to those of superior and general jurisdiction.

The strong reason upon which the rule rests is in public policy. It is deemed more advantageous to the public that judges shall be wholly free from fear of private suit. The frailty of human nature is such that an honest litigant, firmly convinced of the justice of his cause, is prone upon an adverse decision to believe that the judge can not have acted with pure motives. The decision must always be against one party or the other, and if it were permitted to sue a judge for a corrupt decision, every honest judge might be hampered by the fear of suits brought by those who feel aggrieved at his decisions. Such a fear would to a greater or less extent necessarily impair the efficiency of the judges. It is therefore deemed best to clothe the judge while acting within his jurisdiction with complete immunity from private suits, and to leave the remedy in the hands of the state only.

By the phrase, "having jurisdiction," is not

meant merely the having jurisdiction of the special case before the court, but the having jurisdiction of that class of cases. From this results a distinction between courts of general jurisdiction and those of limited jurisdiction. The former have as a part of their jurisdiction the right to determine whether the special case before them comes within their general jurisdiction, the latter have the limits of their jurisdiction fixed with precision, and are bound to confine themselves within such limits. In the former case the judge can not be held liable for mere error, but may be liable if he acted maliciously and corruptly with knowledge that he had not jurisdiction; in the latter case the judge may be held liable for his error, as well as for malice and corruption.

Judicial officers often have imposed upon them duties which are merely ministerial. As to such they do not act judicially. For example, after a bill of exceptions has been settled, the signing of it by the judge is a ministerial act and may be enforced by mandamus. It is a general rule that for failure to perform ministerial acts, judges are liable the same as other ministerial officers.

§ 345. Public duties by private persons.-There is a class of duties that are assumed by private persons or corporations, in consideration of the grant to them of certain privileges at the hands of the state. These duties are generally, if not wholly, for the primary benefit of individuals of the community, rather than for the benefit of the public as a whole. Among these are the duties of common carriers, innkeepers, water companies and gas companies. Such persons or corporations are bound to permit the en

joyment of their privileges to all individuals of the community upon impartial regulations, and for a violation of such impartiality they may be held liable at the suit of an individual specially injured. Where, as in case of railroads, water and gas companies, valuable public rights have been granted to the person or corporation, the courts may sometimes compel by mandamus the performance of the public duty. There is, however, a margin of discretion. within which there may be discrimination. For example, a common carrier or innkeeper may exclude a person who is dangerous, or offensive to the sense. of decency of others. Separate accommodations may be lawfully maintained for women and for men.

§ 346. The right to own property.-Upon this fundamental right belonging to every citizen depends the security and well-being of the community. Without it the social system, as now organized, could not be maintained. Obviously there is nothing that a private person can do to infringe upon this right. The only question is how far may the state impose valid limitations upon it.

So far as its own creatures are concerned, viz., corporations, it may, by the creating act or in pursuance of power therein reserved, make any limitations that it chooses as to the right to own property or may withhold such right altogether.

As to individual citizens, the state has no power to diminish this right, except only where, in the exercise of what is called the police power, it does so for the public benefit. Hence it is valid for the legislature to declare that there may be no ownership of