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power of.

- Or. , 228 Pac. 135.) were exempt from all liability by consequences,'—is applicable to this virtue of a section of the Penal case.” Code providing that a grand juror The prosecuting attorneys of this cannot be questioned for anything state are specially charged with the he may say, or any vote he may give, enforcement of the provisions of the relative to a matter legally pending prohibition liquor law. However, before the jury, except in case of like grand jurors, they are vested perjury-citing § 927, Penal Code, with some discretion and judgment. state of California.

The defendant R. I. Keator is one of The supreme court of California the law officers of the state of Oreheld that that section was but de- gon. His jurisdiction is confined to claratory of the common law as it the limits of Umatilla county. In existed prior to the adoption of the the absence of statstatute-citing, in support of its

District and utory

regulations, prosecuting holding, 1 Wharton, Am. Crim. Law, the prosecuting at- attorneys§ 509; Proffatt, Jury Trial, § 55; 1 torney, in his disChitty, Pl. 89, which reads: "Nortrict, possesses the power of the atcan an action be maintained against torney general at common law. a juryman, or the attorney general, State v. Douglas County Road Co. 10

for an act done in the execu- Or. 198, 2017 State ex rel. Taylor v. tion of his office, and within the pur- Lord, 28 Or. 498, 31 L.R.A. 473, 43 view of his general authority," and Pac. 471; State ex rel. McCain v. the leading case of Bradley v. Fish- Metschan, 32 Or. 372, 41 L.R.A. 692, er, 13 Wall. 335, 20 L. ed. 646, in- 46 Pac. 791, 53 Pac. 1071; State v. volving the liability of the judge of Guglielmo, 46 Or. 250, 69 L.R.A. a court for malicious prosecution. 466, 79 Pac. 577, 80 Pac. 103, 7 Ann. The court further held that the pow- Cas. 976; State v. Millis, 61 Or. 245, er of the grand jurors, while acting 119 Pac. 763; Gibson v. Kay, 68 Or. as such, is quasi judicial, and that 589, 137 Pac. 864. they are not civilly answerable: In the case of Griffith v. Slinkard, “They have certain duties to per- 146 Ind. 117, 44 N. E. 1001, the suform under the law, of a quasi ju- preme court affirmed the decision of dicial character, and in the perform- the lower court in an action against ance of such duties the law invests the prosecuting attorney, wherein it them with judgment and discretion.

was claimed that he procured an inThe grand jury was an essential

dictment maliciously and without

In that case the part of the machinery of the county probable cause.

court wrote: "In State v. Hencourt. They were not volunteers, but were engaged in the perform- ning, 33 Ind. 189, at page 191, this ance of a duty that was compulsory. the case is this: Is a prosecuting at

court said: “The turning point in In finding the indictment com

torney an officer intrusted with the plained of, they acted within the le

administration of justice ? gitimate sphere of their duty, and

He is the law officer of the court, to cannot be held civilly responsible.

whom are intrusted all prosecutions What is said by the learned judge in for felonies and misdemeanors. 2 the case of Scott v. Stansfield, L. R. Gavin & H. p. 430, § 4. He is the 3 Exch. 220, 37 L. J. Exch. N. S. 155, legal adviser of the grand jury. We 18 L. T. N. S. 572, 16 Week. Rep. think he is "an officer intrusted with 911, 15 Eng. Rul. Cas. 42,—'This the administration of justice." ' provision of the law is not for the

'Whenever duties of a judicial protection or benefit of a malicious nature are imposed upon a public ofor corrupt judge, but for the benefit ficer, the due execution of which deof the public, whose interest it is pends upon his own judgment, he is that the judges should be at liberty exempt from all responsibility by acto exercise their functions with in- tion for the motives which influence dependence, and without fear of him and the manner in which said

duties are performed. If corrupt, he prosecutor to action for malicious may be impeached or indicted, but prosecution, wherein the editor he cannot be prosecuted by an in- says: "The decision in Smith v. Pardividual to obtain redress for the man, supra, that a public prosecuwrong which may have been done. tor is not liable in a civil action for No public officer is responsible in a having instituted or maintained a civil suit for a judicial determina- criminal prosecution, is supported tion, however erroneous it may be, by what seems to be the only case and however malicious the motive directly in point." which produced it.' Townsend, In the same note, the editor quotes Slander & Libel, 3d ed. $ 227, pp. from Stephen, Malicious Prosecu395, 396:

There is, there- tion, *85, where it is written: "I fore, no more liability against the know of no instance in which any prosecuting attorney than there is person has been sued for a prosecuagainst the grand jury for the re- tion ordered by any officer of state, turn of an indictment maliciously and I doubt if such an action would and without probable cause."

lie. Prosecutions may be directed A leading case is Smith v. Par. by a secretary of state, the attorney man, 101 Kan. 115, L.R.A.1917F, general, or the director of public 698, 165 Pac. 663. From that case prosecutions, and I know of no diwe carve: "The public prosecutor, rect authority as to whether or not in deciding whether a particular an action for malicious prosecution prosecution shall be instituted or

would lie against any of these offifollowed up, performs much the

cers for what they had done in their same function as a grand jury. If, official capacities.” while he has a question of that kind See also Cottam v. Oregon City under advisement, he is charged (C. C.) 98 Fed. 570; Parker v. with notice that he may have to de- Huntington, 2 Gray 124, 18 C. J. fend an action for malicious prosecu- 1318. tion in case of a failure to convict, his course may be influenced by that takes the contrary view and which

However, there is now a case that consideration, to the disadvantage expressly states that it doubts the of the public. Communications made to a public prosecutor relating to Slinkard, supra. We refer to the

correctness of the text in Griffith v. offenses against the law are treated as privileged, because 'persons hay

case of Leong Yau v. Carden, 23 ing knowledge of the commission of deputy city and county attorney of

Haw. 362, wherein the defendant, a crime ought to be encouraged to reveal to the prosecuting attorney the city and county of Honolulu, was fully, freely, and unreservedly the charged with the duty of investigatsource and extent of their informa- ing criminal charges, and, in proper tion.' [Citation.] We think the cases, of prosecuting the same. A reason for granting immunity to complaint was filed, alleging that judges and grand jurors applies the deputy county and city attorney, with practically equal force to a pub- without probable cause, and with lic prosecutor in his relations to ac- malice, had instituted criminal protions to punish infractions of the ceedings against the plaintiff; that law. There is no great danger that the plaintiff had sustained damages abuse of power will be fostered by by reason of the prosecution, and this exemption from civil liability that the proceedings in the action for the prosecutor is at all times un- for damages had terminated in fader the wholesome restraint im- vor of the plaintiff. On appeal, the posed by the risk of being called to court overruled the judgment of the account criminally for official mis- lower court sustaining demurrer to conduct,

or of being ousted the complaint. See also Schneider from office on that account.”

v. Shepherd, 192 Mich. 82, L.R.A. That case is annotated by a note 1916F, 399, 158 N. W. 182, and on the subject of liability of public Skeffington v. Eylward, 97 Minn.

(- Or. - 228 Pac. 135.) 244, 114 Am. St Rep. 711, 105 N. icy of the law to discourage actions W. 638.

for malicious prosecution. It is well to observe while passing We do not know, nor do we inthat "jurisdiction always depends timate, that either the plaintiff or upon the allegations, and never upon the district attorney has been guilty the facts.

The truth of the of an offense. Our observations Courts-juris

allegations does not have reference to the charge condiction-what constitute jurisdic- tained in the complaint. governs.


Van Fleet, We have seen that the district at Collateral Attack, $ 60.

torney owes as great a duty to proA valuable case is Cooke v. Bangs tect the innocent as to prosecute the (C. C.) 31 Fed. 644, opinion by Mr. guilty. It is hard to conceive of a Justice Brewer.

greater wrong than that of knowIn considering the demurrer, we ingly, falsely, and maliciously acmust accept as true all well-pleaded cusing an innocent man of the comallegations of the complaint. When mission of a crime. A good name, plaintiff's complaint is laid bare, good repute as a citizen, is reckoned

stripped of its many as a thing of priceless value. The Pleading-effect expletives, it will right to liberty and happiness is ratof demorrer.

be seen that much ed high. The law of criminal promaterial matter contained in the cedure is not a public invitation for district attorney's information was a district attorney or anyone else to true. What particular matter that attack the reputation of citizens at information contained that was wil- the expense of the taxpayer. No fully false we are not told.

official is above the law. “Thou The policy of the state with ref- shalt not bear false witness" is a erence to intoxicating liquor is ex- command of the Decalogue, and that pressed by its "bone-dry” law, and forbidden act is denounced by statunder its provisions the mere pos- ute as a felony. It is almost inconsession of intoxicating liquor, with

ceivable that any district attorney certain exceptions, is a crime. In a

should commit the offense of suborcharge of possession, it is unneces

nation of perjury, as charged by sary to plead such exceptions. State plaintiff, and thus subject himself v. Rosasco, 103 Or. 343, 205 Pac.

to criminal prosecution. The crimi290. The plaintiff herein had in

nal statutes apply as surely to him his possession, at his residence, a

as to any other person. All persons large quantity of intoxicating liq

are equal before the law. Wilfully uor, as charged by the prosecuting and falsely to accuse any person is attorney. That liquor, according to

not a private matter. It is of pub

lic concern. A corrupt district atthe complaint in the civil action,

torney, who would resort to suborwas purchased and stored prior to

nation of perjury for the purpose January 1, 1916, and hence posses

of fastening a crime upon an innosion alone was not an offense.

cent man, should and would be However, there is no presumption hurled from power by an aroused that the district attorney was in public conscience.

public conscience. The public is formed of that fact.

concerned in the enforcement of its In reaching a decision we are con- criminal statutes, but it is equally fronted with a determination that interested in an honest enforcement concerns public policy. We are face thereof, and the term "honesty" adto face with a law-enforcing prob- mits of but one meaning. The publem. Criminal law does not enforce lic policy of the state affords ample itself. It demands the assisiance of protection to the innocent, and a valid evidence and fearless officials prosecutor's endeavors should not to put it in execution. Because of be weakened by backfires in the their tendency to obstruct the ad- nature of malicious prosecution. ministration of justice, it is the pol- After mature deliberation upor.

the facts contained in the record be- er that one citizen should suffer fore us, and in consideration of the some financial loss than that the dispolicy of the state in the matter of trict attorneys of the state should enforcement of criminal statutes, be harassed by actions, to defend we hold that the demurrer should which might require a large portion be sustained. It follows that our of their time, to which the public former decision should be set aside, has a right, and a large portion of our opinion recalled, and the judg- the emolument prescribed by law as ment of the lower court affirmed. It compensation for their services, and is so ordered.

that it is better, on the whole, that McBride, Ch. J., specially concur

redress be afforded by prosecutions ring:

for misconduct in office, than that I concur in the result of the opin

the results above indicated should ion by Mr. Justice Brown for the

be made possible. On this sole sole reason that a district attorney

ground I concur with Justice Brown is, by virtue of $ 17, art. 7, of our

in his opinion. Constitution, a quasi judicial officer,

It is to be regretted that the disand the rules in regard to judicial

trict attorney saw fit to rest his deofficers apply, therefore, with equal

fense upon technical grounds, inforce to him. I think the weight of

stead of defending upon the merits, opinion is that, where a justice of

but that is a mere question of offithe peace, or other judicial officer,

cial ethics, which he has a right to

determine for himself. acts within his jurisdiction, even though he acts maliciously, a plain- Burnett, J., dissenting: tiff will not be heard to urge that As to violations of the prohibition fact; and this upon the ground of law, the jurisdiction of the district public policy.

attorney is thus defined in § 2224The filing of a complaint in this 44, Or. Laws: “It shall be the duty class of criminal action is within the of the district attorneys in this state jurisdiction of a district attorneyto diligently prosecute any and all and is an important part of his du- persons violating any of the provities. Whatever may be the actual sions of, and otherwise to enforce, facts in this case, and for the pres- this act in their respective counent purpose we must take the com- ties." plaint as stating the actual facts, it Under $ 2224-50 it is his duty to it plain that it only states what institute inquiry when he is notified could be alleged by any defendant or has knowledge of, or reason to who happened to be acquitted of a suspect, any violation of the liquor criminal charge, against any district laws. He may also, by the same secattorney, and with comparative im- tion, impose the duty of inquiry upmunity from prosecution for per- on a magistrate. Preliminary injury. The verification to a com- quiry is quite different from actual plaint requires that the plaintiff arrest and prosecution. The latter shall only swear that he believes the is applicable only to “persons vioallegations of the complaint to be lating any of the provisions” of the true, and this form of verification law. reduces the allegations of the com- In this government of the people, plaint, in substance, to averments by the people, for the people, no offithat the plaintiff believes the state- cer is clothed with arbitrary, automents therein to be true, and upon cratic, or irresponsible power, with this it is plain that in the ordinary which he may knowingly oppress an case no prosecution for perjury innocent person. I fully agree with could be maintained, however ab- the principle that any judicial offsurd the plaintiff's grounds of be- cer, district attorney, or grand julief, or alleged grounds of belief, ror, while acting within the scope of may be.

his authority, is protected from eiI think public policy dictates rath- ther civil or criminal liability, (-Or. –, 228 Pac. 135.) though his actuating motive may be the fact that the defendant knew malicious. He may depend upon that the plaintiff was innocent, and testimony of witnesses if he has no that he lawfully had in his possesknowledge of or reason to suspect sion certain intoxicating liquor, of its want of truth, although the event which he was making no unlawful may demonstrate its falsity. But use or disposition, and, knowing when, as charged in the complaint these facts, falsely and maliciously herein, he knows that the charge he accused and charged, and instigated promotes is false, he has no right to others to falsely and maliciously acseize upon some isolated, inconclu- cuse and charge, the plaintiff with sive circumstance and institute a the commission of a criminal of prosecution upon it. It is the sci- fense concerning his possession, use, enter that strips from him the im- and disposition of said liquor, and munity of his official station. A caused plaintiff to be prosecuted upperson whom the district attorney on said false and fictitious charge in knows to be innocent is not one of the courts of Umatilla county, and, those within his jurisdiction to pros- upon the trial, instigated others to ecute. When he has actual knowl- swear falsely against the plaintiff, edge of innocence he cannot have knowing at the time that the charge reasonable cause to believe guilt. itself was a false, fictitious, and Only a person who is an actual vio- trumped-up one. lator of the law, or whom the dis- Whether, as intimated, the allegatrict attorney has reasonable cause tions are stronger than the proof, to believe is such violator, is ame- and the plaintiff will be unable to nable to prosecution by that officer. sustain them by proof, is a question All others are beyond the pale of that can be determined only upon his authority, and, as to them, when the trial. That question is of no conhe knows they are guiltless he acts cern to us at this time, for, if the at his peril, for there can be no fact intimated is true, it affords no wrong without a remedy.

ground for sustaining the demurrer. Whether, on issue joined, the The legal effect of the demurrer is plaintiff may be able to prove his to admit the truth of the facts as allegation that the defendant, who, stated in the complaint, and the it is said sub rosa, is district attor- only office it can perform is to obney, knew that the former was in- ject to the legal sufficiency of the nocent, is not a question to be de- complaint itself. If the complaint termined here. All we have before does state facts sufficient to constius is the sufficiency of the complaint tute a cause of action in favor of the as against a general demurrer. plaintiff and against the defendant,

I concur with Mr. Justice Rand. the demurrer, as a matter of law, Rand, J., dissenting:

must be overruled, regardless of Since the former decision of this

whether or not, upon the trial, court, reported in - Or., 222 Pac. plaintiff can establish the truth of 318, was rendered, a petition for

his allegations. rehearing was granted. A reargu

It is contended, however, although ment has been had, and the cause is

that fact is not alleged in the comagain before us for decision. We plaint, that, because the defendant shall make no attempt to restate the Keator was the duly elected, qualifacts, but confine ourselves to such fied, and acting district attorney for facts only as are necessary for a Umatilla county, and because the proper understanding of the ques- plaintiff had in his possession certions now before us.

tain intoxicating liquor, the possesThis is an action for malicious sion of which, if acquired prior to prosecution, and the questions for the enactment of the prohibition decision arise upon a demurrer to statute, and no unlawful the complaint. The gist of the cause made of it, would, under the statute, of action alleged in the complaint is be lawful, the prohibition statute it

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