473; Grove v. Van Duyn, 44 N. J. L. 654, 43 Am. Rep. 412; Broom v. Douglass, 175 Ala. 268, 44 L.R.A.(N.S.) 164, 57 So. 860, Ann. Cas. 1914C, 1155; Gaines v. Newbrough, 12 Tex. Civ. App. 466, 34 S. W. 1048; Pratt v. Gardner, 2 Cush. 63, 48 Am. Dec. 652; Allec v. Reece, 39 Fed. 341; State ex rel. Egan v. Wolever, 127 Ind. 306, 26 N. E. 762.

Public authorities are not personally liable for acts performed by them in the line of their duty, for in such cases the element of malice is of no importance and the only question is whether the acts are done under lawful authority. It is a discretionary authority where the determination partakes of the character of judicial decision.

Steele v. Dunham, 26 Wis. 393; Jones v. Brown, 54 Iowa, 74, 37 Am. Rep. 185, 6 N. W. 140; Fath v. Koeppel, 72 Wis. 289, 7 Am. St. Rep. 867, 39 N. W. 539; Horstman v. Adamson, 101 Mo. App. 119, 74 S. W. 398; Spalding v. Vilas, 161 U. S. 483, 40 L. ed. 780, 16 Sup. Ct. Rep. 631; Moran v. McClearns, 60 Barb. 388, 4 Lans. 288; Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609; East River Gaslight Co. v. Donnelly, 93 N. Y. 557; Cottam v. Oregon City, 98 Fed. 570; Weaver v. Devendorf, 3 Denio, 120.

The district attorney, in presenting an information, acts in the same capacity as did the attorney general at common law, and has all the powers and functions of the attorney general at common law, except those of which he has been deprived by express statute.

State v. Guglielmo, 46 Or. 250, 69 L.R.A. 466, 79 Pac. 577, 80 Pac. 103, 7 Ann. Cas. 976; State v. Douglas County Road Co. 10 Or. 198.

At common law the attorney general was not liable in a civil action for malicious prosecution.

1 Chitty, Pl. 89; Turnpen v. Booth, 56 Cal. 65, 38 Am. Rep. 48.

In drawing and presenting an information, the district attorney, acting under the law, performs the same functions as does the grand jury in presenting an indictment.

State v. Guglielmo, supra.

Since the discovery of crime is to the interest of the state, and the liability of a private prosecutor would tend to discourage the prosecution of crime, marked disfavor characterizes the attitude of the court toward an action of malicious prosecution, and re

covery is only allowed where the case is brought strictly within the terms of the encircling limitations.

Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937; Russell v. Chamberlain, 12 Idaho, 299, 85 Pac. 926, 9 Ann. Cas. 1173; Bert v. Smith, 181 N. Y. 1, 73 N. E. 495, 2 Ann. Cas. 576.

In the commencement and prosecution of the action described in the complaint, a district attorney is acting within his authority, and while so acting he cannot be questioned in a civil proceeding as to the details of the prosecution, or as to his means, motives, purposes, or intention therein.

Smith v. Parman, L.R.A.1917F, 698 and note, 101 Kan. 115, 165 Pac. 663; Griffith v. Slinkard, 146 Ind. 117, 44 N. E. 1001; 18 C. J. 1318; 23 Am. & Eng. Enc. Law, 286; Parker v. Huntington, 2 Gray, 124; Farrar v. Steele, 31 La. Ann. 640; Ostman v. Bruere, 141 Mo. App. 240, 124 S. W. 1059; Arnold v. Hubble, 18 Ky. L. Rep. 947, 38 S. W. 1041.

Where an officer acts in a matter which involves a judicial discretion or determination and within the general scope of his authority, he is not liable, though he may be actuated by malice and corrupt motives.

Pratt v. Gardner, 2 Cush. 63, 48 Am. Dec. 652; Sidener v. Russell, 34 Ill. App. 446; Hunter v. Mathis, 40 Ind. 356; Turpen v. Booth, 56 Cal. 65, 38 Am. Rep. 48; Smith v. Parman, 101 Kan. 115, L.R.A.1917F, 698, 165 Pac. 663; Griffith v. Slinkard, 146 Ind. 117, 44 N. E. 1001; Cottam v. Oregon City, 98 Fed. 570.

Brown, J., delivered the opinion of the court:

The precise question involved in this appeal has never before been presented to this court for determination. Plaintiff's complaint avers that the defendants ransacked his residence, and seized, on his premises, the following intoxicating liquors: "Ninety-one quarts of whisky and brandy; 5 quarts of vermouth; 4 quarts of gin; one bottle of beer; 12 quarts of old Scotch whisky; three bottles of Virginia Dare; about 1 gallon of gin in a keg; 5 gallons of whisky in a keg; 2 gallons of Scotch whisky in a jug; part of a bottle of kimmel; one small

brown jug; and several parts of bottles of other intoxicating liquors”. and that they falsely and maliciously accused him of violating the prohibition liquor laws of this state.

It will be seen from the allegations of the complaint that the plaintiff possessed all the liquor that the information filed against him. charged him with possessing, and that he was keeping it at his residence in Umatilla county, Oregon, as charged. The error made by the district attorney seems to consist in his charge as to the alleged use made of such liquor by the plaintiff, who avers that he purchased and stored the liquor in his residence prior to January 1, 1916.

In the beginning of our consideration of this appeal we should remember that an action for malicious prosecution is not a favorite of the law.

Malicious prosecutionaction not favored.

"Public policy favors prosecutions for crime, and requires that a person who in good faith, and upon reasonable grounds, institutes proceedings upon a criminal charge, shall be protected. The presumption of law is, therefore, that every prosecution for a crime is founded on probable cause and is instituted only for purposes of justice." 19 Am. & Eng. Enc. Law, 2d ed. 650.

The editors of Ruling Case Law have written: "The action for malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another, and the courts have allowed recovery only when the requirements. limiting it have been fully complied with. The disfavor with which the action is looked upon is especially marked in cases where the suit is being brought for the institution of criminal proceedings against the plaintiff, as public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage." 18 R. C. L. p. 11. Again: "Actions for malicious prosecutions are regarded by law

with jealousy. Lord Holt said, more than two hundred years ago, that they ought not to be favored, but managed with great caution.' Their tendency is to discourage prosecution for crime, as they expose the prosecutors to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecutions, when, if they fail, they may be subjected to the expense of litigation, if they be not mulcted in damages." Newell, Malicious Prosecution, p. 21.

The defendant asserts, in effect, that the district attorney was required by the Oregon Prohibition Law (Or. Laws, § 2224-55) to commence and prosecute that criminal action against the defendant, although the officer knew that the affidavit was perjured, and that none of the statements relied upon were true. He contends that in the event of his failure to prosecute he would have subjected himself to the penalties prescribed by § 2224-44 of the act. In this contention we cannot agree. The district attorney, in determining whether to institute a prosecution, is a quasi judicial officer, who possesses a certain discretion as to when, how, and against whom to proceed. 23 Am. & Eng. Enc. Law, 2d ed. p. 275.

District and prosecuting attorneysdiscretion.

The power conferred upon a district attorney is not purely ministerial. "Their discretion is limited; but that, as a necessity, they do possess a discretion, is indisputable. In nearly every instance, they alone determine when, how, and whom to prosecute or sue in the name of the state." Farrar v. Steele, 31 La. Ann. 640.

The duty of the district attorney is well stated in Com. v. Nicely, 130 Pa. 261, 270, 18 Atl. 738, where the court said: "The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only,-equal and impartial justice,-and it is as much the duty of the district attorney to

see that no innocent man suffers, as it is to see that no guilty man escapes."

"The prosecuting attorney is a sworn minister of justice, whose duty it is to see that the innocent are protected, as well as that the guilty are brought to punishment, and who must stand indifferent as between the accused and any private interest." Weeks, Attys. 2d ed. § 282a.

The supreme court of Michigan, in Engle v. Chipman, 51 Mich. 524, 16 N. W. 886, spoke as follows: "The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion intrusted to him as a minister of justice, and not as a mere legal attorney. He is disqualified He is disqualified from becoming in any way entangled with private interests or grievances in any way connected with charges of crime. He is expected to be impartial in abstaining from prosecuting, as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned. This discretion is official and personal."

That part of the prohibition law defining the duties of a district attorney will be presumed to have been enacted by the legislature with

Evidencestatutes-presumption as to knowledge of other law.

full knowledge of the existence of § 1018, Or. Laws, investing the district attorney with discretion, as well as charging him with a duty.

It is a familiar rule of interpretation that, "in the construction of a particular statute,

Statutes-construction-in

pari materia.

all acts relating to the same subject should be read in connection with it, as together constituting one law." 36 Cyc. 1147, 1148.

The provisions of the prohibition law relative to the duty of the district attorney to prosecute for the commission of a crime did not repeal, either directly or by implication, § 1018, Oregon Laws, defining

This section authorizes the district attorney to issue process, commanding the attendance of persons who, he believes, have information of the violation of the liquor laws.

Section 2224-51 provides for the swearing of witnesses who are called before the district attorney, and for reducing their testimony to writing.

Section 2224-52 empowers the district attorney to administer oaths or affirmations to the witnesses before him.

Section 2224-54 provides: “If the testimony so taken discloses that there is reasonable ground to believe that an offense has been committed, the prosecuting officer shall at once prosecute the person or persons suspected of committing the offense.

Section 2224-55 enacts that "if the sworn statement of any witness so taken before any prosecuting officer or magistrate, as in the last preceding section provided, shall disclose the fact that intoxicating liquors are being kept for unlawful sale or purpose, or are being sold by an unknown person or persons, particularly describing such unknown person or persons, contrary to the provisions of this act, at any place, particularly describing the place to be searched and the property to be seized, as hereinafter provided, within such county, it shall be the duty of such prosecuting officer forthwith to file his complaint or information charging such offense as shall appear to have been committed, .. verified by such prose

"Verify. Law-to confirm or substantiate by oath or proof." Webster's New International Dict.

"Verify. To confirm or substantiate by oath; to show to be true. Particularly used of making formal oath to accounts, petitions, pleadings, and other papers." Black's

Law Dict.; Anderson's Law Dict.

The law does not contemplate the filing of a verified information or complaint, as provided for in § 222455 of our Code, in the absence of sufficient information upon the part of the district attorney to produce in his mind a reasonable belief of the truth of the charge. Section 2224-50 requires the district attorney, whenever notified of a violation of the prohibition law, to make diligent inquiry for the purpose of ascertaining the facts relating to the charge; but the filing of a complaint by him depends upon whether or not there appears to him to be reasonable ground to believe that the offense charged has been committed. When complaint is made, it is his duty to act for the purpose of ascertaining the facts, but it is not his duty to cause the arrest of any per

Malicious prosecutionprobable cause.

son unless there appears to be reasonable ground for such arrest. Every prosecution for crime should be based upon probable

a civil suit, for a judicial determination, however erroneous 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 power. It, of course, applies only where the judge or officer had jurisdiction of the particular case, and was authorized to determine it. If he transcends the limits of his authority, he necessarily ceases, in the particular case, to act as a judge, and is responsible for all consequences. But, with these limitations, the principle of irresponsibility, so far as respects a civil remedy, is as old as the common law itself." Weaver v. Devendorf, 3 Denio, 120.

There are many cases holding that a justice of the peace, in the performance of judicial acts within his jurisdiction, is not liable, although he may be actuated with malicious intent and corrupt motives. See extensive note to Lacey v. Hendricks, 137 Am. St. Rep., pages 45, 49. But there are cases that seem to hold to the contrary. See notes in 6 Am. Dec. 303, and 19 Am. Dec. 490.

Mr. Freeman, in a note to Lacey v. Hendricks, supra, at page 50, said: "There is conflict among the authorities as to whether a quasi judicial officer is liable in a civil action, even where his acts are malicious or corrupt; but there is no conflict as to his immunity from personal liability to the same extent as judges of courts, while he acts in good faith, and within the limits of the authority expressly granted to him. But the question is pretty well settled that a quasi judicial officer, acting in a judicial capacity, with jurisdiction, is protected in the discharge of his duties to the same extent as judges, and that, while

acting within the bounds of his authority, the fact that he acts maliciously or corruptly will not affect his right to immunity from civil liability."

Fath v. Koeppel, 72 Wis. 289, 7 Am. St. Rep. 867, 39 N. W. 539, was a case against a fish inspector who was vested with power to determine the quality and wholesomeness of fish offered for sale, and, if unwholesome, to condemn and destroy fish so offered. In that case the supreme court of Wisconsin, in sustaining the demurrer to the complaint in an action for damages, said: "The officer exercising such a power is within the protection of that principle that a judicial officer is not responsible in an action for damages to anyone, for any judgment he may render, however erroneously, negligently, ignorantly, corruptly, or maliciously he may act in rendering it, if he act within his jurisdiction. This principle is stated and given force in Steele v. Dunham, 26 Wis. 393, by the present chief justice, to shield from liability members of an equalizing board, who are

charged with liability for damages to the plaintiff for corruptly and oppressively increasing the valuation of certain property without proof.

This principle protects all officers exercising judicial powers, whatever they may be called. It is ‘a judicial privilege,' and has 'a deep root in the common law,' and is found 'asserted in the earliest judicial records, and it has been steadily maintained by an undisturbed current of decisions.' Yates v. Lansing, 5 Johns. 291. It is a discretionary authority, where the determination partakes of the character of a judicial decision. Druecker v. Salomon, 21 Wis. 621, 94 Am. Dec. 471," and other authorities.

Grounding their reasoning upon public policy, the authorities teach us that a grand juror is not answerable in damages in a civil proceeding for his action as such juror, however erroneous his action may be, and notwithstanding that such action may have been actuated by a mali

Turpen v. Booth, supra, involves the question of the responsibility of a grand juror in a civil action for damages, for an act committed by him while acting as such grand juror in a case where an indictment was returned upon insufficient evidence, and with the motive maliciously to injure the defendant, charged with illegal voting. The complaint set forth that each of the grand jurors took the oath prescribed by law that "they would present no person through malice, hatred, or ill will," but that, regardless of their oath, the grand jurors, and each of them, were actuated and influenced by a desire to blast, tarnish, and ruin the good name enjoyed by plaintiff among his fellows. It averred that the grand jurors pretended to receive and hear evidence against the plaintiff; that the law officer of the county, after hearing the evidence, instructed the grand jury that an indictment could not lie against the plaintiff upon the evidence adduced before it in support of the charge of illegal voting, and that, according to the evidence received, no crime had been committed; that, notwithstanding the insufficiency of the evidence, the grand jurors "collectively and individually, wilfully, falsely, and fraudulently. and without probable cause, and being possessed of actual malice and ill will against this plaintiff, corruptly did pretend to find a true bill and indictment against this plaintiff for falsely and illegally voting, etc., and such indictment was duly presented by the foreman of the grand jury, and was filed according to law."

Defendants asserted that they