were exempt from all liability by virtue of a section of the Penal Code providing that a grand juror cannot be questioned for anything he may say, or any vote he may give, relative to a matter legally pending before the jury, except in case of perjury-citing § 927, Penal Code, state of California.

The supreme court of California held that that section was but declaratory of the common law as it existed prior to the adoption of the statute citing, in support of its holding, 1 Wharton, Am. Crim. Law, § 509; Proffatt, Jury Trial, § 55; 1 Chitty, Pl. 89, which reads: "Nor can an action be maintained against a juryman, or the attorney general,

for an act done in the execution of his office, and within the purview of his general authority," and the leading case of Bradley v. Fisher, 13 Wall. 335, 20 L. ed. 646, involving the liability of the judge of a court for malicious prosecution. The court further held that the power of the grand jurors, while acting as such, is quasi judicial, and that they are not civilly answerable: "They have certain duties to perform under the law, of a quasi judicial character, and in the performance of such duties the law invests them with judgment and discretion. The grand jury was an essential part of the machinery of the county court. They were not volunteers, but were engaged in the performance of a duty that was compulsory. In finding the indictment complained of, they acted within the legitimate sphere of their duty, and cannot be held civilly responsible. What is said by the learned judge in the case of Scott v. Stansfield, L. R. 3 Exch. 220, 37 L. J. Exch. N. S. 155, 18 L. T. N. S. 572, 16 Week. Rep. 911, 15 Eng. Rul. Cas. 42,-"This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of

consequences,'-is applicable to this

case."

The prosecuting attorneys of this state are specially charged with the enforcement of the provisions of the prohibition liquor law. However,

like grand jurors, they are vested with some discretion and judgment. The defendant R. I. Keator is one of the law officers of the state of Oregon. His jurisdiction is confined to the limits of Umatilla county. In the absence of stat- District and utory regulations, prosecuting the prosecuting at- attorneystorney, in his dis

power of.

trict, possesses the power of the attorney general at common law. State v. Douglas County Road Co. 10 Or. 198, 201; State ex rel. Taylor v. Lord, 28 Or. 498, 31 L.R.A. 473, 43 Pac. 471; State ex rel. McCain v. Metschan, 32 Or. 372, 41 L.R.A. 692, 46 Pac. 791, 53 Pac. 1071; State v. Guglielmo, 46 Or. 250, 69 L.R.A. 466, 79 Pac. 577, 80 Pac. 103, 7 Ann. Cas. 976; State v. Millis, 61 Or. 245, 119 Pac. 763; Gibson v. Kay, 68 Or. 589, 137 Pac. 864.

In the case of Griffith v. Slinkard, 146 Ind. 117, 44 N. E. 1001, the supreme court affirmed the decision of the lower court in an action against. the prosecuting attorney, wherein it was claimed that he procured an indictment maliciously and without probable cause. In that case the

court wrote: "In State v. Hen

ning, 33 Ind. 189, at page 191, this the case is this: Is a prosecuting atcourt said: "The turning point in torney an officer intrusted with the administration of justice?

He is the law officer of the court, to whom are intrusted all prosecutions for felonies and misdemeanors. Gavin & H. p. 430, § 4. He is the legal adviser of the grand jury. We think he is "an officer intrusted with the administration of justice." . . . 'Whenever duties of a judicial nature are imposed upon a public officer, the due execution of which depends upon his own judgment, he is exempt from all responsibility by action for the motives which influence him and the manner in which said

duties are performed. If corrupt, he may be impeached or indicted, but he cannot be prosecuted by an individual to obtain redress for the wrong which may have been done. No public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it.' Townsend, Slander & Libel, 3d ed. § 227, pp. 395, 396:

There is, therefore, no more liability against the prosecuting attorney than there is against the grand jury for the return of an indictment maliciously and without probable cause."

A leading case is Smith v. Parman, 101 Kan. 115, L.R.A.1917F, 698, 165 Pac. 663. From that case we carve: "The public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury. If, while he has a question of that kind under advisement, he is charged with notice that he may have to defend an action for malicious prosecution in case of a failure to convict, his course may be influenced by that consideration, to the disadvantage of the public. Communications made to a public prosecutor relating to offenses against the law are treated as privileged, because 'persons having knowledge of the commission of a crime ought to be encouraged to reveal to the prosecuting attorney fully, freely, and unreservedly the source and extent of their information.' [Citation.] We think the reason for granting immunity to judges and grand jurors applies with practically equal force to a public prosecutor in his relations to actions to punish infractions of the law. There is no great danger that abuse of power will be fostered by this exemption from civil liability, for the prosecutor is at all times under the wholesome restraint imposed by the risk of being called to account criminally for official misconduct, or of being ousted from office on that account."

That case is annotated by a note on the subject of liability of public

prosecutor to action for malicious prosecution, prosecution, wherein wherein the the editor says: "The decision in Smith v. Parman, supra, that a public prosecutor is not liable in a civil action for having instituted or maintained a criminal prosecution, is supported by what seems to be the only case directly in point."

In the same note, the editor quotes from Stephen, Malicious Prosecution, *85, where it is written: "I know of no instance in which any person has been sued for a prosecution ordered by any officer of state, and I doubt if such an action would lie. Prosecutions may be directed by a secretary of state, the attorney general, or the director of public prosecutions, and I know of no direct authority as to whether or not an action for malicious prosecution would lie against any of these officers for what they had done in their official capacities.'

See also Cottam v. Oregon City (C. C.) 98 Fed. 570; Parker v. Huntington, 2 Gray 124, 18 C. J.

1318.

However, there is now a case that takes the contrary view and which expressly states that it doubts the correctness of the text in Griffith v.

Slinkard, supra. We refer to the

A

case of Leong Yau v. Carden, 23 Haw. 362, wherein the defendant, deputy city and county attorney of the city and county of Honolulu, was charged with the duty of investigating criminal charges, and, in proper cases, of prosecuting the same. complaint was filed, alleging that the deputy county and city attorney, without probable cause, and with malice, had instituted criminal proceedings against the plaintiff; that the plaintiff had sustained damages by reason of the prosecution, and that the proceedings in the action for damages had terminated in favor of the plaintiff. On appeal, the court overruled the judgment of the lower court sustaining demurrer to the complaint. See also Schneider v. Shepherd, 192 Mich. 82, L.R.A. 1916F, 399, 158 N. W. 182, and Skeffington v. Eylward, 97 Minn.

Collateral Attack, § 60.

A valuable case is Cooke v. Bangs (C. C.) 31 Fed. 644, opinion by Mr. Justice Brewer.

In considering the demurrer, we must accept as true all well-pleaded allegations of the complaint. When plaintiff's complaint is laid bare,

of demurrer.

stripped of its many Pleading-effect expletives, it will be seen that much material matter contained in the district attorney's information was true. What particular matter that information contained that was wilfully false we are not told.

The policy of the state with reference to intoxicating liquor is expressed by its "bone-dry" law, and under its provisions the mere possession of intoxicating liquor, with certain exceptions, is a crime. In a charge of possession, it is unnecessary to plead such exceptions. State v. Rosasco, 103 Or. 343, 205 Pac. 290.

The plaintiff herein had in his possession, at his residence, a large quantity of intoxicating liquor, as charged by the prosecuting attorney. That liquor, according to the complaint in the civil action, was purchased and stored prior to January 1, 1916, and hence possession alone was not an offense. However, there is no presumption that the district attorney was informed of that fact.

In reaching a decision we are confronted with a determination that concerns public policy. We are face to face with a law-enforcing problem. Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the pol

for malicious prosecution.

We do not know, nor do we intimate, that either the plaintiff or the district attorney has been guilty of an offense. Our observations have reference to the charge contained in the complaint.

We have seen that the district attorney owes as great a duty to protect the innocent as to prosecute the guilty. It is hard to conceive of a greater wrong than that of knowingly, falsely, and maliciously accusing an innocent man of the commission of a crime. A good name, good repute as a citizen, is reckoned as a thing of priceless value. The right to liberty and happiness is rated high. ed high. The law of criminal procedure is not a public invitation for a district attorney or anyone else to attack the reputation of citizens at the expense of the taxpayer. No official is above the law. "Thou shalt not bear false witness" is a command of the Decalogue, and that forbidden act is denounced by statute as a felony. It is almost inconceivable that any district attorney should commit the offense of subornation of perjury, as charged by plaintiff, and thus subject himself to criminal prosecution. The criminal statutes apply as surely to him as to any other person. All persons and falsely to accuse any person is are equal before the law. Wilfully not a private matter. It is of pub

lic concern.

torney, who would resort to suborA corrupt district atnation of perjury for the purpose of fastening a crime upon an innocent man, should and would be hurled from power by an aroused public conscience. The public is concerned in the enforcement of its criminal statutes, but it is equally interested in an honest enforcement thereof, and the term "honesty" admits of but one meaning. The public policy of the state affords ample protection to the innocent, and a prosecutor's endeavors should not be weakened by backfires in the nature of malicious prosecution.

After mature deliberation upor

the facts contained in the record before us, and in consideration of the policy of the state in the matter of enforcement of criminal statutes, we hold that the demurrer should be sustained. It follows that our former decision should be set aside, our opinion recalled, and the judgment of the lower court affirmed. It is so ordered.

McBride, Ch. J., specially concurring:

I concur in the result of the opinion by Mr. Justice Brown for the sole reason that a district attorney is, by virtue of § 17, art. 7, of our Constitution, a quasi judicial officer, and the rules in regard to judicial officers apply, therefore, with equal force to him. I think the weight of opinion is that, where a justice of the peace, or other judicial officer, acts within his jurisdiction, even though he acts maliciously, a plaintiff will not be heard to urge that fact; and this upon the ground of public policy.

The filing of a complaint in this class of criminal action is within the jurisdiction of a district attorney, and is an important part of his duties. Whatever may be the actual facts in this case, and for the present purpose we must take the complaint as stating the actual facts, it it plain that it only states what could be alleged by any defendant who happened to be acquitted of a criminal charge, against any district attorney, and with comparative immunity from prosecution for perjury. The verification to a complaint requires that the plaintiff shall only swear that he believes the allegations of the complaint to be true, and this form of verification reduces the allegations of the complaint, in substance, to averments that the plaintiff believes the statements therein to be true, and upon this it is plain that in the ordinary

no prosecution for perjury could be maintained, however absurd the plaintiff's grounds of belief, or alleged grounds of belief, may be.

I think public policy dictates rath

er that one citizen should suffer some financial loss than that the district attorneys of the state should be harassed by actions, to defend which might require a large portion of their time, to which the public has a right, and a large portion of the emolument prescribed by law as compensation for their services, and that it is better, on the whole, that redress be afforded by prosecutions for misconduct in office, than that the results above indicated should be made possible. On this sole ground I concur with Justice Brown in his opinion.

It is to be regretted that the district attorney saw fit to rest his defense upon technical grounds, instead of defending upon the merits, but that is a mere question of official ethics, which he has a right to determine for himself.

Burnett, J., dissenting:

As to violations of the prohibition law, the jurisdiction of the district attorney is thus defined in § 222444, Or. Laws: "It shall be the duty of the district attorneys in this state to diligently prosecute any and all persons violating any of the provisions of, and otherwise to enforce, this act in their respective counties."

Under § 2224-50 it is his duty to institute inquiry when he is notified or has knowledge of, or reason to suspect, any violation of the liquor laws. He may also, by the same section, impose the duty of inquiry upon a magistrate. Preliminary inquiry is quite different from actual arrest and prosecution. The latter is applicable only to "persons violating any of the provisions" of the law.

In this government of the people, by the people, for the people, no officer is clothed with arbitrary, autocratic, or irresponsible power, with which he may knowingly oppress an innocent person. I fully agree with the principle that any judicial officer, district attorney, or grand juror, while acting within the scope of his authority, is protected from either civil or criminal liability,

though his actuating motive may be malicious. He may depend upon testimony of witnesses if he has no knowledge of or reason to suspect its want of truth, although the event may demonstrate its falsity. But when, as charged in the complaint herein, he knows that the charge he promotes is false, he has no right to seize upon some isolated, inconclusive circumstance and institute a prosecution upon it. It is the scienter that strips from him the immunity of his official station. A person whom the district attorney knows to be innocent is not one of those within his jurisdiction to prosecute. When he has actual knowledge of innocence he cannot have reasonable cause to believe guilt. Only a person who is an actual violator of the law, or whom the district attorney has reasonable cause to believe is such violator, is amenable to prosecution by that officer. All others are beyond the pale of his authority, and, as to them, when he knows they are guiltless he acts at his peril, for there can be no wrong without a remedy.

Whether, on issue joined, the plaintiff may be able to prove his allegation that the defendant, who, it is said sub rosa, is district attorney, knew that the former was innocent, is not a question to be determined here. All we have before us is the sufficiency of the complaint as against a general demurrer.

I concur with Mr. Justice Rand.
Rand, J., dissenting:

Since the former decision of this court, reported in Or., 222 Pac. Or., 222 Pac. 318, was rendered, a petition for rehearing was granted. A reargument has been had, and the cause is again before us for decision. We shall make no attempt to restate the facts, but confine ourselves to such facts only as are necessary for a proper understanding of the questions now before us.

This is an action for malicious prosecution, and the questions for decision arise upon a demurrer to the complaint. The gist of the cause of action alleged in the complaint is

Whether, as intimated, the allegations are stronger than the proof, and the plaintiff will be unable to sustain them by proof, is a question that can be determined only upon the trial. That question is of no concern to us at this time, for, if the fact intimated is true, it affords no ground for sustaining the demurrer. The legal effect of the demurrer is to admit the truth of the facts as stated in the complaint, and the only office it can perform is to object to the legal sufficiency of the complaint itself. If the complaint does state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, the demurrer, as a matter of law, must be overruled, regardless of whether or not, upon the trial, plaintiff can establish the truth of his allegations.

It is contended, however, although that fact is not alleged in the complaint, that, because the defendant Keator was the duly elected, qualified, and acting district attorney for Umatilla county, and because the plaintiff had in his possession certain intoxicating liquor, the possession of which, if acquired prior to the enactment of the prohibition statute, and no unlawful use being made of it, would, under the statute, be lawful, the prohibition statute it