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self contains terms which author- offense has been committed, and unized the district attorney to do the der the latter it becomes his duty to acts complained of, even though at file a complaint charging an offense the time he knew that no crime had when the sworn statement of any been committed by the plaintiff. witness discloses the fact that inThat the legislature did not so in- toxicating liquors are being kept for tend, and, even if it had such an in- unlawful sale or purpose, or are betent, that it had no such power, is ing sold by any person contrary to beyond the possibility of successful the provisions of the act. It is not controversy. That the statutes re- reasonable to say that anything to ferred to confer no such power be found in these statutes confers plainly appears from the express any power or authority upon a disterms thereof.
trict attorney to falsely and mali“If any prosecuting officer shall ciously charge another with the be notified or have knowledge of or commission of a criminal offense reason to suspect any violation of which he knows him to be innocent any of the provisions of the laws of of. Unless a district attorney is nothis state relating to intoxicating tified, or has knowledge, or has some liquors, it shall be his duty forth- reason to suspect, that a crime has with diligently to inquire into the been committed, there is nothing befacts of such violation.
fore him which authorizes him to Section 2224-50.
make any inquiry or do any act in "If the testimony so taken dis- the exercise of a quasi judicial cacloses that there is reasonable
reasonable pacity. When a district attorney ground to believe that an offense falsely and maliciously charges a has been committed, the prosecuting person with the commission of an officer shall at once prosecute the offense which he knows him to be person or persons suspected of com- innocent of, he is acting beyond the mitting the offense.
." Sec- scope of any authority conferred by tion 2224-54.
statute and in direct violation of its “If the sworn statement of any terms, and is responsible, like othwitness
shall disclose the ers, for the consequences of his own fact that intoxicating liquors are be wrongful act. ing kept for unlawful sale or pur
The authorities relied upon by pose, or are being sold by an un- Mr. Justice Brown namely, Weavknown person or persons,
er v. Devendorf, 3 Denio, 120; Mr. contrary to the provisions of this Freeman's note to Lacey v. Henact, . it shall be the duty of dricks, 137 Am. St. Rep., pages 45, such prosecuting officer forthwith to 50; Fath v. Koeppel, 72 Wis. 289, 7 file his complaint or information Am. St. Rep. 867, 39 N. W. 539, and charging such offense as shall ap- 1 Chitty, Pleading, *89—afford no pear to have been committed support for the contention that, beSection 2224-55.
cause the defendant, in falsely and Under the provisions of these maliciously accusing the plaintiff of statutes, when can it be said that it an offense which he knew he had becomes the duty of an officer not committed, was acting in his act? The statutes themselves an- official capacity, he is not liable, unswer the question. It becomes his der the facts alleged in the comduty, under the first section quoted, plaint, for the damages resulting to inquire into the facts when he is from his wrongful acts. In the first notified or has knowledge of, or rea- case cited the court clearly states son to suspect, any violation of any the law which, we think, ought to be prohibition law. Under the second controlling here: “No public officer section, it becomes his duty to pros- is responsible, in a civil suit, for a ecute the person suspected when the judicial determination, however ertestimony discloses that there is rea- roneous it may be, and however masonable ground to believe that an licious the motive which produced it.
(-Or. , 228 Pao. 135.) Such acts, when corrupt, may be der the facts alleged, the defendant
, punished criminally, but the law was not acting in good faith, or in will not allow malice and corruption the discharge of his duty, or within to be charged in a civil suit against the bounds of his authority, and for such an officer, for what he does in acting wholly without authority, the performance of a judicial duty. and maliciously, he is liable for the The rule extends to judges, from the resultant damages, as stated by Mr. highest to the lowest, to jurors, and Freeman. to all public officers, whatever name We also agree with the principles they may bear, in the exercise of stated in the last case cited, where judicial power. It, of course, ap- the court said: “The officer exerplies only where the judge or officer cising such a power is within the had jurisdiction of the particular protection of that principle that a case, and was authorized to deter- judicial officer is not responsible in mine it. If he transcends the limits an action for damages to anyone for of this authority, he necessarily any judgment he may render, howceases, in the particular case, to act ever erroneously, negligently, ignoas a judge, and is responsible for all rantly, corruptly, or maliciously he consequences. But with these limi- may act in rendering it, if he act tations the principle of irresponsi- within his jurisdiction.” bility, so far as respects a civil rem- Mr. Chitty, in his first volume on edy, is as old as the common law Pleading, *89, said: "An action itself."
cannot be maintained against a civil Under this authority, if it can or ecclesiastical judge or justice of reasonably be said that the district the peace, acting judicially in a matattorney, in maliciously and know- ter within the scope of his jurisdicingly making a false accusation tion, although he may decide erroagainst another and causing him to neously in the particular case. Nor be prosecuted therefor, had jurisdic- can an action be maintained against tion of the particular case and was a juryman, or the attorney general, acting in the exercise of a judicial or a superior military or naval offipower, and was not transcending cer, for an act done in the execution the limits of his authority, then the of his office, and within the purview excerpt quoted would sustain this of his general authority. And comcontention, but, as this cannot rea- missioners of bankrupts are not liasonably be said, his acts bring him ble to an action of trespass for comwithin the class for which that mitting a person who does not ancourt said he is responsible for all swer to their satisfaction when consequences; for it must be clear examined before them touching the that a district attorney, in making bankrupt's estate and effects. But a false charge against a person if a public officer have no jurisdicwhom he knows to be innocent, is
tion whatever over the subject-matneither acting as a judge nor in the ter, and his proceedings are altoperformance of a duty, either judi- gether coram non judice, he is recial or quasi judicial.
sponsible.” Nor do we disagree with anything Hence, we hold that, while the law contained in the statement made by is settled that an action will not lie Mr. Freeman to the effect that there against a judge for any act done in is no conflict among the authorities his judicial capacity, nor against a as to the immunity from personal grand juror for finding an indictliability of a district attorney or ment, nor against a petty juror for other person acting in a quasi judi- his verdict, nor against a district atcial capacity, to the same extent as torney for an act done in his quasi judges of courts, “while he acts in judicial capacity, this principle has good faith and within the limits of no application to the facts alleged the authority expressly granted to in the complaint now under considhim." What we assert is that, un- eration.
It is argued that this action plaintiff was innocent of the crime should not be maintained because it he was charging him with. It there. has often been held that actions for fore appears from the allegations of malicious prosecution are not fa- the complaint, which are now advored by the law, and that the pub- mitted to be true, that the defendlic policy and convenience require ant falsely charged the plaintiff that persons shall be protected from with the commission of a criminal civil liability who have, in good offense. These allegations charge faith and upon reasonable grounds, the defendant with the doing of an instituted proceedings for the prose- act in a manner which the early cution of persons upon a criminal common-law judges term as "falso charge. Where a prosecution upon et malitiose." The term imports a criminal charge has terminated not only the making of a false favorably to the party accused, and charge maliciously, but the making the proceedings were instituted ma- of it wickedly. As the defendant liciously and without probable was a prosecuting officer, if the act cause, the law has always given to had been done either ignorantly or the injured party a remedy in dam rashly, for doing it, the law might ages for the wrong done him by an hold him excusable. But as the act action for malicious prosecution. was done wickedly, with full knowl“For this, however," says Sir Wil- edge of its falsity, the doing of the liam Blackstone, "the law has given act, in law, was neither justifiable a very adequate remedy in damages, nor excusable, and the defendant either by an action of conspiracy, ought to be compelled to answer for which cannot be brought but against the consequences of his wrongful two at the least; or, which is the act. Public policy, as has frequentmore usual way, by a special action ly been held, is, at most, a vague and on the case for a false and malicious uncertain guide, and was designated prosecution.” 3 Bl. Com. *126. by Burroughs, J., as "an unruly
There is but one legal ground up- horse pursuing us, and when once on which any argument can be ad- you get astride of it, you never know vanced in support of the nonliability where it will carry you.' Richardof the defendant in the instant case. son v. Mellish, 2 Bing. 229, 130 Eng. That is on the principle that the law Reprint, 294. To contend, under will rather suffer a private mischief any proper conception of sound pubthan a public inconvenience. That lic policy, that any prosecuting ofprinciple is an exception to the well- ficer has the privilege of bringing a recognized rule that there is no person into court and charging him wrong without a remedy, and is with and prosecuting him for a founded wholly upon principles of crime which he knows him to be inpublic policy and convenience. But nocent of, without being answerable the rule ought not to be applied for the damages caused thereby, uphere, for the complaint not only al- on the theory that the public good leges the presence of malice and will be best subserved thereby, is a want of probable cause, but also the proposition too monstrous to be deadditional element that the criminal bated in a court of justice; for it charge upon which the plaintiff was must be obvious to any reasonable prosecuted was not only preferred mind that this would place in the by the defendant himself, but was hands of an unscrupulous officer made by him with knowledge upon powers which are not consistent his part at the time that he was with good government or the welmaking a false charge, and that the fare of society.
ANNOTATION. Immunity of prosecuting officer from action for malicious prosecution.
This annotation does not include ecuting officer for false arrest or imthe question of the liability of a pros- prisonment. See Schneider v. Shepherd (1916) 192 Mich, 82, L.RA.1916F, In Ostman v. Bruere (1909) 141 Mo. 399, 158 N. W. 182.
App. 240, 124 S. W. 1059, it was held The courts are not agreed upon the that an action would not lie against a question of liability of a prosecuting district attorney on the ground that he officer for malicious prosecution. maliciously overdid his part in pro
In Griffith v. Slinkard (1896) 146 curing a conviction. The charge was Ind. 117, 44 N. E. 1001, it was held that the defendant browbeat and asthat an allegation that a prosecuting saulted the plaintiff with an intemperattorney maliciously and without prob- ate, vulgar, and unnecessarily severe able cause procured an indictment by cross-examination, and it was said that the grand jury was demurrable. The the plaintiff had her only remedy by court considered that the prosecuting objection, etc., in the criminal case, attorney was a judicial officer, but not and could not bring an independent in the sense of a judge of a court. suit upon the matter. The conviction
In Smith v. Parman (1917) 101 Kan. had not been reversed or set aside. 115, L.R.A.1917F, 698, 165 Pac. 663, There is authority, however, in favor it was held that a city attorney, while of the liability of a prosecuting officer engaged in the prosecution of a per- for malicious prosecution. son charged with the violation of an In Leong Yau v. Carden (1916) 23 ordinance, is entitled to the same im- Haw. 362, the court overruled a demunity from civil liability with re- murrer to a complaint for malicious spect thereto as ordinarily attaches to prosecution brought against a deputy the office of a public prosecutor, and city and county attorney whose duty it that, irrespective of his motives, a was to investigate charges of crime public prosecutor cannot be held lia and, in proper cases, to prosecute the ble in a civil action on account of hav- same, and which alleged that the deing instituted or maintained a pros- fendant falsely and maliciously, and ecution in that capacity for an alleged without reasonable and probable cause violation of the criminal law.
therefor, instituted criminal proceedIt will be seen that in the reported ings against the plaintiff by signing case (WATTS v. GERKING, ante, 1489) and filing a false and malicious affiit is held that a district attorney, in davit and complaint before a judge, determining whether or not to insti- charging the plaintiff with having tute a prosecution, is a quasi judicial committed a misdemeanor; that the officer, who possesses a certain discre- defendant maliciously and without tion as to when, how, and against probable cause influenced and prewhom to proceed, and that he is not vailed upon the judge to issue a warliable for malicious prosecution of a rant of arrest, and delayed the arrest criminal action where the determina- until the nighttime, and caused the tion of the question whether or not to sheriff to hold the plaintiff to bail in prosecute is within his official author- an unreasonably large sum; that the ity.
prosecution postponed the case In an action to recover damages for peatedly, and it was dismissed by the defendant's having, as city attorney, city and county attorney and the advised and procured an alleged void plaintiff discharged. The court doubtjudgment in the police court of the ed the correctness of the conclusion city, convicting the plaintiff of the reached by the court in the case of violation of an ordinance, a judgment Griffith v. Slinkard (1896) 146 Ind. for the defendant was affirmed, where 117, 44 N. E. 1001, and said, inter alia: the petition failed to state facts show- "A public prosecuting officer, in detering that the police judge was not act- mining whether certain purported ing within the scope of his authority, facts which have been brought to his and there was “a failure to allege that attention justify the accusation and the defendant was acting by malicious prosecution of a person believed to or corrupt motives.” Arnold v. Hub- have committed an offense, acts in a ble (1897) 18 Ky. L. Rep. 947, 38 S. W. quasi judicial capacity, and he is not 1041.
to be held liable in damages for an 34 A.L.R.--95.
honest mistake or error of judgment special demurrer that, in an action in instituting a criminal proceeding against a district attorney and anagainst such person. But if he pros- other person for malicious prosecuecutes without probable cause, and tion, where it was alleged that they with malice, he certainly is in no bet- maliciously contrived to draw from ter position than the judge of a court the plaintiff evidence which could be -superior or inferior--who proceeds used to have him indicted for perjury, maliciously and without any jurisdic- and maliciously contrived to have him tion, or the head of an executive de- indicted for perjury, it was not necespartment who acts maliciously and sary for the plaintiff to aver and prove without color of authority. Public a conspiracy on the part of the deprosecuting officers are entitled to fendants. protection against claims growing out The two following cases, while beof the discharge of their duties done yond the scope of this annotation, may in good faith, though with erroneous be here referred to: judgment, but private individuals are In Skeffington v. Eylward (1906) 97 entitled to the protection of the law Minn. 244, 114 Am. St. Rep. 711, 105 against any conduct of such officers N. W. 638, the plaintiff succeeded in which is at once reckless, malicious, an action for malicious prosecution and damaging."
against the chairman of a board of In Carpenter v. Sibley (1908) 153 town supervisors, where, a complaint Cal. 215, 15 L.R.A. (N.S.) 1143, 94 Pac. having been made to the defendant 879, 15 Ann. Cas. 484, where it was that the plaintiff had obstructed a held that the presumption of probable highway, he investigated the charge. cause for a prosecution arising from consulted with the county attorney, conviction is destroyed if it was se- and made a complaint to the court cured by fraud or perjury, the plain charging the plaintiff with such oftiff sued the district attorney and the fense. In that case the court said: sheriff, with others, for malicious
“It is further urged on behalf of the prosecution. It was held to be error
defendant that, because it was his ofito sustain the objection of the defend
cial duty to prosecute all persons vioants to the introduction of any evi
lating the provisions of the statute dence because of insufficient facts alleged in the complaint. The court
relating to the obstruction of does not discuss in terms the liability
public highways, he is not liable for a of the district attorney to the suit.
mistake of judgment, even if another The complaint showed trial, convic
has suffered by the mistake. If he tion, and imprisonment of the plain
acted upon probable cause, this would tiff, the reversal by the supreme court,
be true; otherwise not. The fact that and the order for a new trial, and the
he acted in his official capacity in later dismissal of the action and the
making the complaint was, as the jury release of the plaintiff on the motion were instructed, a matter to be conof the district attorney.
The com- sidered by them in determining the plaint charged, further, that the dis- question of probable cause.” trict attorney and the assistant dis- In Brown v. Wimpenny (1921) 239 trict attorney, and the sheriff and oth- Mass. 278, 132 N. E. 43, where the coner persons, maliciously and felonious- stable of a town made complaint ly conspired and agreed falsely to against the plaintiffs, and the selectcharge and accuse the plaintiff of the men of the town employed counsel crime of subornation of perjury, and to prosecute the complaint, an acto convict and punish him therefor. tion for malicious prosecution and for That they procured false evidence to conspiracy was brought against the be given before the grand jury and the constable and selectmen, and verdicts court, and that they intimidated and directed for the selectmen were sus. coerced the jury, etc.
tained. There was evidence that it In Parker v. Huntington (1854) 2 was the custom to employ counser for Gray (Mass.) 124, it was held on an officer to prosecute, but there was