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473; Grove v. Van Duyn, 44 N. J. L. covery is only allowed where the case 654, 43 Am. Rep. 412; Broom v. Doug- is brought strictly within the terms of lass, 175 Ala. 268, 44 L.R.A.(N.S.) 164, the encircling limitations. 57 So. 860, Ann. Cas. 1914C, 1155; Ball v. Rawles, 93 Cal. 222, 27 Am. Gaines v. Newbrough, 12 Tex. Civ. St. Rep. 174, 28 Pac. 937; Russell v. App. 466, 34 S. W. 1048; Pratt v. Gard- Chamberlain, 12 Idaho, 299, 85 Pae. ner, 2 Cush. 63, 48 Am. Dec. 652; Allec926, 9 Ann. Cas. 1173; Bert 6. Smith, v. Reece, 39 Fed. 341; State ex rel. 181 N. Y. 1, 73 N. E. 495, 2 Ann. Cas. Egan v. Wolever, 127 Ind. 306, 26 N. E. 576. 762.

In the commencement and prosecuPublic authorities are not personal- tion of the action described in the ly liable for acts performed by them complaint, a district attorney is actin the line of their duty, for in such ing within his authority, and while so cases the element of malice is of no acting he cannot be questioned in a importance and the only question is civil proceeding as to the details of whether the acts are done under law- the prosecution, or as to his means, ful authority. It is a discretionary motives, purposes, or intention thereauthority where the determination partakes of the character of judicial Smith v. Parman, L.R.A.1917F, 698 decision.

and note, 101 Kan. 115, 165 Pac. 663; Steele v. Dunham, 26 Wis. 393; Jones Griffith v. Slinkard, 146 Ind. 117, 44 N. v. Brown, 54 Iowa, 74, 37 Am. Rep. E. 1001; 18 C. J. 1318; 23 Am. & Eng. 185, 6 N. W. 140; Fath v. Koeppel, 72 Enc. Law, 286; Parker v. Huntington, Wis. 289, 7 Am. St. Rep. 867, 39 N. W. 2 Gray, 124; Farrar v. Steele, 31 La. 539; Horstman V. Adamson, 101 Mo. Ann, 640; Ostman v. Bruere, 141 Mo. App. 119, 74 S. W. 398; Spalding v. App. 240, 124 S. W. 1059; Arnold v. Vilas, 161 U. S. 483, 40 L. ed. 780, 16 Hubble, 18 Ky. L Rep. 947, 38 S. W. Sup. Ct. ep. 631; Moran v. McClearns, 1041, 60 Barb. 388, 4 Lans. 288; Rains v. Where an officer acts in a matter Simpson, 50 Tex. 495, 32 Am. Rep. 609; which involves a judicial discretion or East River Gaslight Co. v. Donnelly, determination and within the general 93 N. Y. 557; Cottam v. Oregon City, scope of his authority, he is not liable, 98 Fed. 570; Weaver v. Devendorf, 3 though he may be actuated by malice Denio, 120.

and corrupt motives. The district attorney, in presenting Pratt v. Gardner, 2 Cush. 63, 48 Am. an information, acts in the same ca- Dec. 652; Sidener v. Russell, 34 III. pacity as did the attorney general at App. 446; Hunter v. Mathis, 40 Ind. common law, and has all the powers 356; Turpen v. Booth, 56 Cal. 65, 38 and functions of the attorney general Am. Rep. 48; Smith v. Parman, 101 at common law, except those of which Kan. 115, L.R.A.1917F, 698, 165 Pac. he has been deprived by express stat- 663; Griffith v. Slinkard, 146 Ind. 117, ute.

44 Ń. E. 1001; Cottam v. Oregon City, State v. Guglielmo, 46 Or. 250, 69 98 Fed. 570. L.R.A. 466, 79 Pac. 577, 80 Pac. 103, 7 Ann. Cas. 976; State v. Douglas Brown, J., delivered the opinion County Road Co. 10 Or. 198.

of the court: At common law the attorney general The precise question involved in was not liable in a civil action for

this appeal has never before been malicious prosecution.

presented to this court for deter1 Chitty, Pl. 89; Turnpen v. Booth,

mination. 56 Cal. 65, 38 Am. Rep. 48.

Plaintiff's complaint In drawing and presenting an infor

avers that the defendants

defendants ranmation, the district attorney, acting

sacked his residence, and seized, on under the law, performs the same his premises, the following intoxifunctions as does the grand jury in cating liquors: "Ninety-one quarts presenting an indictment.

of whisky and brandy; 5 quarts of State v. Guglielmo, supra.

vermouth; 4 quarts of gin; one botSince the discovery of crime is to

tle of beer; 12 quarts of old Scotch the interest of the state, and the lia

whisky; three bottles of Virginia bility of a private prosecutor would

Dare; about 1 gallon of gin in a keg; tend to discourage the prosecution of crime, marked disfavor characterizes

5 gallons of whisky in a keg; 2 galthe attitude of the court toward an ac

lons of Scotch whisky in a jug; part tion of malicious prosecution, and re- of a bottle of kimmel; one small

aetion not

(- Or. - 228 Pac. 135.) brown jug; and several parts of bot- with jealousy. Lord Holt said, more tles of other intoxicating liquors”- than two hundred years ago, that and that they falsely and malicious- they 'ought not to be favored, but ly accused him of violating the pro- managed with great caution. Their hibition liquor laws of this state. tendency is to discourage prosecu

It will be seen from the allega- tion for crime, as they expose the tions of the complaint that the plain- prosecutors to civil suits, and the tiff possessed all the liquor that love of justice may not always be the information filed against him strong enough to induce individuals charged him with possessing, and to commence prosecutions, when, if that he was keeping it at his resi- they fail, they may be subjected to dence in Umatilla county, Oregon, the expense of litigation, if they be as charged. The error made by the not mulcted in damages." Newell, district attorney seems to consist in Malicious Prosecution, p. 21. his charge as to the alleged use The defendant asserts, in effect, made of such liquor by the plaintiff, that the district attorney was rewho avers that he purchased and quired by the Oregon Prohibition stored the liquor in his residence Law (Or. Laws, § 2224–55) to comprior to January 1, 1916.

mence and prosecute that criminal In the beginning of our consider- action against the defendant, al

ation of this appeal though the officer knew that the afMalicious prosecution

we should remem- fidavit was perjured, and that none

ber that an action of the statements relied upon were tavored.

for malicious pros- true. He contends that in the event ecution is not a favorite of the law. of his failure to prosecute he would "Public policy favors prosecu

have subjected himself to the pentions for crime, and requires that a alties prescribed by $ 2224-44 of the person who in good faith, and upon act. In this contention we cannot reasonable grounds, institutes pro- agree. The district attorney, in deceedings upon a criminal charge, termining whether to institute a shall be protected. The presump- prosecution, is a tion of law is, therefore, that every quasi judicial offi

quasi judicial offi- District and

prosecuting prosecution for a crime is founded cer, who possesses on probable cause and is instituted a certain discretion only for purposes of justice.” 19 as to when, how, and against whom Am. & Eng. Enc. Law, 2d ed. 650. to proceed. 23 Am. & Eng. Enc.

The editors of Ruling Case Law Law, 2d ed. p. 275. have written: "The action for ma- The power conferred upon a dislicious prosecution is not favored in trict attorney is not purely minislaw, and hence has been hedged terial. “Their discretion is limited; about by limitations more stringent but that, as a necessity, they do than those in the case of almost any possess a discretion, is indisputable. other act causing damage to anoth- In nearly every instance, they alone er, and the courts have allowed re- determine when, how, and whom to covery only when the requirements prosecute or sue in the name of the limiting it have been fully complied state." Farrar v. Steele, 31 La. with. The disfavor with which the Ann. 640. action is looked upon is especially The duty of the district attorney marked in cases where the suit is is well stated in Com. v. Nicely, 130 being brought for the institution of Pa. 261, 270, 18 Atl. 738, where the criminal proceedings against the court said: "The district attorney plaintiff, as public policy favors the is a quasi judicial officer. He repexposure of crime, which a recovery resents the commonwealth, and the against a prosecutor obviously tends commonwealth demands no victims. to discourage.” 18 R. C. L. p. 11. It seeks justice only,—equal and

Again: “Actions for malicious impartial justice,—and it is as much prosecutions are regarded by law the duty of the district attorney to


see that no innocent man suffers, as his duties. That section of the Code it is to see that no guilty man es- should be read in connection with capes.”

the provisions of the prohibition “The prosecuting attorney is a law defining his duties. In truth, sworn minister of justice, whose the prohibition law is in accord with duty it is to see that the innocent $ 1018. “If any prosecuting officer are protected, as well as that the shall be notified or have knowledge guilty are brought to punishment of or reason to suspect any violation and who must stand indifferent as of any of the provisions of the laws between the accused and any pri- of this state relating to intoxicating vate interest." Weeks, Attys. 2d liquors, it shall be his duty forthed. § 282a.

with diligently to inquire into the The supreme court of Michigan, facts of such violation.

Or. in Engle v. Chipman, 51 Mich. 524, Laws, § 2224–50. 16 N. W. 886, spoke as follows: This section authorizes the dis“The prosecuting attorney is a very trict attorney to issue process, comresponsible officer, selected by the manding the attendance of persons people and vested with personal dis- who, he believes, have information cretion intrusted to him as a min- of the violation of the liquor laws. ister of justice, and not as a mere Section 2224–51 provides for the legal attorney. He is disqualified swearing of witnesses who are from becoming in any way entan- called before the district attorney, gled with private interests or griev. and for reducing their testimony to ances in any way connected with writing. charges of crime. He is expected to Section 2224–52 empowers the be impartial in abstaining from district attorney to administer oaths prosecuting, as well as in prosecut- or affirmations to the witnesses being, and to guard the real interests fore him. of public justice in favor of all con- Section 2224-54 provides: “If cerned. This discretion is official the testimony so taken discloses that and personal."

there is reasonable ground to believe That part of the prohibition law that an offense has been committed, defining the duties of a district at- the prosecuting officer shall at once torney will be presumed to have prosecute the person or persons susbeen enacted by the legislature with pected of committing the offense.

full knowledge of Evidence- the existence of $ Section 2224-55 enacts that "if sumption as to 1018, Or. Laws, in- the sworn statement of any witness knowledge of other law.

vesting the district so taken before any prosecuting of.

attorney with dis- ficer or magistrate, as in the last cretion, as well as charging him preceding section provided, shall diswith a duty.

close the fact that intoxicating liqIt is a familiar rule of interpre- uors are being kept for unlawful tation that, “in the construction of sale or purpose, or are being sold by

a particular statute, an unknown person or persons, par

all acts re- ticularly describing such unknown pari materia.

lating to the same person or persons, contrary to the subject. should be read in provisions of this act, at any place, connection with it, as together con- particularly describing the place to stituting one law.” 36 Cyc. 1147, be searched and the property to 1148.

be seized, as hereinafter provided, The provisions of the prohibition within such county, it shall be the law relative to the duty of the dis- duty of such prosecuting officer trict attorney to prosecute for the forthwith to file his complaint or incommission of a crime did not re- formation charging such offense as peal, either directly or by implica- shall appear to have been committion, $ 1018, Oregon Laws, defining ted,

verified by such prose



(- Or. 228 Pac. 135.) cuting officers upon information and a civil suit, for a judicial determinabelief.

tion, however erroneous it may be, “Verify. Law-to confirm


and however malicious the motive substantiate by oath or proof.” which produced it. Such acts, when Webster's New International Dict. corrupt, may be punished criminal

"Verify. To confirm or substan- ly, but the law will not allow malice tiate by oath; to show to be true. and corruption to be charged in a Particularly used of making formal civil suit against such an officer for oath to accounts, petitions, plead- what he does in the performance of ings, and other papers." Black's a judicial duty. The rule extends to Law Dict.; Anderson's Law Dict. judges, from the highest to the low

The law does not contemplate the est, to jurors, and to all public offifiling of a verified information or cers, whatever name they may bear, complaint, as provided for in § 2224- in the exercise of judicial power. It, 55 of our Code, in the absence of of course, applies only where the sufficient information upon the part judge or officer had jurisdiction of of the district attorney to produce the particular case, and was authorin his mind a reasonable belief of ized to determine it. If he tranthe truth of the charge. Section scends the limits of his authority, he 2224-50 requires the district attor- necessarily ceases, in the particular ney, wherever notified of a violation case, to act as a judge, and is reof the prohibition law, to make dili- sponsible for all consequences. But, gent inquiry for the purpose of as- with these limitations, the principle certaining the facts relating to the of irresponsibility, so far as respects charge; but the filing of a complaint a civil remedy, is as old as the comby him depends upon whether or not mon law itself.” Weaver v. Deventhere appears to him to be reason- dorf, 3 Denio, 120. able ground to believe that the of- There are many cases holding fense charged has been committed. that a justice of the peace, in the When complaint is made, it is his performance of judicial acts within duty to act for the purpose of as- his jurisdiction, is not liable, alcertaining the facts, but it is not his though he may be actuated with duty to cause the arrest of any per- malicious intent and corrupt mo

son unless there ap- tives. See extensive note to Lacey prosecution- pears to be reason- v. Hendricks, 137 Am. St. Rep., probable cause.

able ground for pages 45, 49. But there are cases such arrest. Every prosecution for that seem to hold to the contrary. crime should be based upon probable See notes in 6 Am. Dec. 303, and 19 cause.

Am. Dec. 490. "Probable cause does not depend Mr. Freeman, in a note to Lacey on the actual state of the case, in v. Hendricks, supra, at page 50,

point of fact, but said: “There is conflict among the -probable cause

upon the honest and authorities as to whether a quasi ju

reasonable belief of dicial officer is liable in a civil action, the party commencing the prosecu- even where his acts are malicious tion." Bacon v. Towne, 4 Cush. 239. or corrupt; but there is no conflict

It is also urged in support of the as to his immunity from personal demurrer that the defendant Keator liability to the same extent as is not liable, because of the fact that judges of courts, while he acts in his act was of a judicial nature. good faith, and within the limits of

Much has been written concern- the authority expressly granted to ing the liability of judicial and him. But the question is pretty well quasi judicial officers to civil actions settled that a quasi judicial officer, for acts of a judicial nature. The acting in a judicial capacity, with doctrine announced in the following jurisdiction, is protected in the discase has frequently been approved: charge of his duties to the same ex"No public officer is responsible in tent as judges, and that, while



acting within the bounds of his au- cious motive. Hunter v. Mathis, 40 thority, the fact that he acts mali- Ind. 356; Sidener v. Russell, 34 Ill. ciously or corruptly will not affect App. 446; Turpen v. Booth, 56 Cal. his right to immunity from civil lia- 65, 38 Am. Rep. 48. This doctrine bility.”

being applicable to grand jurors, Fath v. Koeppel, 72 Wis. 289, 7 there is no good reason why it Am. St. Rep. 867, 39 N. W. 539, was should not shield the prosecuting a case against a fish inspector who attorney from civil

- liability of was vested with power to determine liability in the case prosecuting

attorney. the quality and wholesomeness of at bar. fish offered for sale, and, if unwhole- Turpen v. Booth, supra, involves some, to condemn and destroy fish so the question of the responsibility of offered. In that case the supreme a grand juror in a civil action for court of Wisconsin, in sustaining the damages, for an act committed by demurrer to the complaint in an ac- him while acting as such grand jution for damages, said: “The officer ror in a case where an indictment exercising such a power is within was returned upon insufficient evithe protection of that principle that dence, and with the motive malia judicial officer is not responsible ciously to injure the defendant, in an action for damages to anyone, charged with illegal voting. The for any judgment he may render, complaint set forth that each of the however erroneously, negligently, grand jurors took the oath preignorantly, corruptly, or malicious- scribed by law that "they would prely he may act in rendering it, if he sent no person through malice, haact within his jurisdiction. This tred, or ill will,” but that, regardless principle is stated and given force of their oath, the grand jurors, and in Steele v. Dunham, 26 Wis. 393, each of them, were actuated and inby the present chief justice, to fluenced by a desire to blast, tarnish, shield from liability members of an and ruin the good name enjoyed by equalizing board,

who are

plaintiff among his fellows. charged with liability for damages averred that the grand jurors preto the plaintiff for corruptly and op- tended to receive and hear evipressively increasing the valuation dence against the plaintiff; that of certain property without proof. the law officer of the county, after This principle protects all hearing

hearing the evidence, instructed officers exercising judicial powers, the grand jury that an indictment whatever they may be called. It is could not lie against the plaintiff ‘a judicial privilege,' and has ‘a deep upon the evidence adduced before root in the common law,' and is it in support of the charge of ilfound 'asserted in the earliest judi- legal voting, and that, according cial records, and it has been steadily to the evidence received, no crime maintained by an undisturbed cur- had been committed; that, notrent of decisions.' Yates v. Lansing, withstanding the insufficiency of 5 Johns. 291. It is a discretionary the evidence, the grand jurors authority, where the determination "collectively and individually, wilpartakes of the character of a judi- fully, falsely, and fraudulently, cial decision. Druecker v. Salomon, and without probable cause, and 21 Wis. 621, 94 Am. Dec. 471,” and being possessed of actual malice and other authorities.

ill will against this plaintiff, Grounding their reasoning upon corruptly did pretend to find a true public policy, the authorities teach bill and indictment against this us that a grand juror is not answer- plaintiff for falsely and illegally votable in damages in a civil proceeding ing, etc., and such indictment was for his action as such juror, however duly presented by the foreman of erroneous his action may be, and the grand jury, and was filed accordnotwithstanding that such action ing to law." may have been actuated by a mali- Defendants asserted that they


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