Topic 1. Executive and Administrative Officers in General 1123. MOSTYN v. FABRIGAS. (1774. Cowp. 161, 172; Action for imprisonment of the plaintiff by the defendant, who was Governor of Minorca.) Lord MANSFIELD, C. J. . . . The first point then upon this ground is, the sacredness of the defendant's person as Governor. . . . It has been insisted by way of distinction, that supposing an action will lie for an injury of this kind committed by one individual against another, in a country beyond the seas, but within the dominion of the crown of England, yet it shall not emphatically lie against the governor. In answer to which I say, that for many reasons, if it did not lie against any other man, it shall most emphatically lie against the governor, . . . even if it did not hold in the case of any other person. If so, he is accountable in this Court or he is accountable nowhere; for the King in council has no jurisdiction. . . . Therefore to lay down in an English court of justice such a monstrous proposition, as that a governor acting by virtue of letters patent under the great seal, is accountable only to God, and his own conscience; that he is absolutely despotic, and can spoil, plunder, and injure his Majesty's subjects, both in their liberty and property, with impunity, is a doctrine that cannot be maintained. 1124. MILLER v. SEARE COMMON PLEAS. 1777. 2 W. Bl. 1141 TRESPASS and false imprisonment against three commissioners of bankrupt for imprisoning the defendant, on the 26th of February, 1770, and confining him sixty-seven days without any reasonable or probable cause. The defendants plead, 1st. The general issue; 2d. — A justification under the authority of the statute of 13 Eliz. c. 7. 3d. — The like under 1 Jac. I, c. 15. 4th - A special justification, setting out all the circumstances of the case, "that on the 26th of February, 1773, Thomas Miller, weaver, was summoned to attend before the Commissioners to be examined touching the discovery of the bankrupt's effects: and appearing there, and being examined upon oath, . . . and being asked by us among other questions, which were necessary for the discovery of the said bankrupt's estate, . . . he the said Thomas Miller refused to answer, whether he did believe that he had bought the said two bales of silk by a broker, . . . they therefore commit him to the Fleet without bail or mainprize until such time as he the said Thomas Miller shall submit himself to us the said Commissioners." It was again argued this Term by Adair for the plaintiff and Glyn for the defendants. For the plaintiff, it was insisted, . . . that the Commissioners of Bankrupt are not Judges of record. they may commit, they have no judicial power. . . . Though . . For the defend ants, it was allowed that the Commissioners had been mistaken, in judging the answer of the plaintiff not to be sufficient or satisfactory. . . . But the Commissioners are to exercise their judgment upon this sufficiency; and, though mistaken, are not to be punished for such their error in judgment. No action can be maintained against a Judge, acting in a judicial capacity, for any errors he may commit in a matter within his jurisdiction, Gwynn and Pool, Lutw. 937, 1560.... The consequences would be terrible, if an action lay for every mistake of judgment, denial of certificate, and the like. No Commissioners of Excise, Customs, Turnpikes, Sewers, &c. nor Justices of the Peace, can be sued for being mistaken in a matter within their jurisdiction. . . . DEGREY, Chief Justice. . . . This is a case without a precedent, and must therefore be determined on principles. Taken in any view, it involves a hardship on either side. Hard, that Commissioners should be perpetually harassed with actions, in case of an innocent mistake. Harder for the public, if they [the Commissioners] are to be invested with an arbitrary power of committing whom, and for what they please, without being liable to answer for it; especially as the same law must be established for all Commissioners of Bankrupt as well those in the country as in London. Here, little danger is to be apprehended from such a power of commitment, as the commissioners are usually men of knowledge and discretion, chosen by the Great Seal, and acting under its immediate inspection. The defendant, Mr. Seare, in particular, we all personally know to be a gentleman of the utmost integrity and honour. But, in the country, very low and obscure men often creep into the commission; and to arm them with such arbitrary powers, would be of the most terrible consequence. It is certain that no man ought to suffer, criminally, for an error in judgment; but it is equally just, that he should make reparation civilly, for the damage which other persons have suffered by such his error. But it is said that no action will lie against persons acting in a judicial capacity. Let us see how far this general position is warranted by law. 1st. It is agreed, that the Judges in the King's superior courts of justice are not liable to answer personally for their errors in judgment. And this, not so much for the sake of the judges, as of the suitors themselves. Bushel's Case. Vaugh. 138. . . . 2d. The like in courts of general jurisdiction, as Gaol-delivery, &c. 1 Mod. 184, 119. . . . 3d. In courts of special and limited jurisdiction, having power to hear and determine, a distinction must be made. While acting within the line of their authority, they are protected as to errors in judgment; otherwise they are not protected. . . Thus much of courts. . It is then said that the defendants in the present case are judges, and acting within their jurisdiction. I cannot assent to this position, that Commissioners of Bankrupt are judges. . . . Commissioners of Bankrupts have none of the requisites of a court of justice. They cannot commit for punishment. They have very little judicial discretion. Their office is chiefly executory and ministerial. think the plaintiff is entitled to judgment. GOULD, Justice. . . . I had for a long time a difficulty in my own mind, whether these commissioners were not judges of record; . . . but I must acknowledge that the reasons given by Lord Chief Justice for the contrary opinion are extremely strong. BLACKSTONE, Justice. concurred with Lord Chief Justice in omnibus. . . . NARES, Justice, concurred with Lord Chief Justice, and BLACKSTONE, Justice. ... Judgment for the plaintiff on the demurrer. 1125. FERGUSON v. Earl of KINNOULL. (House of Lords, 1842. 9 Cl. & F. 251, 289.) Lord BROUGHAM. . . . If the law casts any duty upon a person, which he refuses or fails to perform, he is answerable in damages (as my noble and learned friend has stated) to those whom his refusal or failure injures. Nor are these propositions the less true, generally and as the rule, because there are exceptions (and a very few exceptions) introduced into the law and construction of this and indeed of every country, from the necessities of the case. Thus, the Legislature can of course do no wrong; but so its branches are placed beyond all control of the law. And the Courts of Justice, that is, the Superior Courts, Courts of general jurisdiction, are not answerable, either as bodies or by their individual members, for acts done within the limits of their jurisdiction. Even inferior Courts, provided the law has clothed them with judicial functions, are not answerable for errors in judgment; and where they may not act as judges, but only have a discretion confided to them, an erroneous exercise of that discretion, however plain the miscarriage may be, and however injurious its consequences, they shall not answer for. This follows from the very nature of the thing; it is implied in the nature of judicial authority, and in the nature of discretion, where there is no such judicial authority. But where the law neither confers judicial power, nor any discretion at all, but requires certain things to be done, every body, whatever be its name, and whatever other functions of a judicial or of a discretionary nature it may have, is bound to obey; and, with the exception of the Legislature and its branches, every body is liable for the consequences of disobedience; that is, its members are liable, through whose failure or contumacy the disobedience has arisen, and the consequent injury to the parties interested in the duty being performed. ... 1126. ROGERS v. RAJENDRO DUTT. (1860. 13 Moore P. C. 209, 236.) Dr. LUSHINGTON. It does not appear to their Lordships. to conclude the question in this action, that the act complained of is to be considered as the act of the Government, and that in the part which the defendant took in it he acted only as the officer of the Government, intending to discharge his duty as a public servant with perfect good faith, and with an entire absence of any malice, particular or general, against the plaintiffs. For if the act which he did was in itself wrongful, as against the plaintiffs, and produced damage to them, they must have the same remedy by action against the doer, whether the act was his own, spontaneous and unauthorized, or whether it were done by the order of the superior power. The civil irresponsibility of the Supreme power for tortuous acts could not be maintained with any show of justice, if its agents were not personally responsible for them. In such cases the Government is morally bound to indemnify its agent, and it is hard on such agent when this obligation is not satisfied. But the right to compensation in the party injured is paramount to this consideration. Neither, in the case of damage occasioned by a wrongful act (that is, an act which the law esteems an injury), is malice a necessary ingredient to the maintenance of the action: an imprisonment of the person, a battery, a trespass on land, are instances, and only instances, in which the act may be quite innocent, even laudable, as to the intention of the doer, and yet, if any damage, even in legal contemplation, be the consequence, an action will lie. ... 1127. CHATTERTON v. SECRETARY OF STATE FOR INDIA. (1895. 2 Q. B. 189, 191.) Lord ESHER, M. R. . . . The reason for the law on this subject plainly appears from what Lord ELLENBOROUGH and many other judges have said. It is that it would be injurious to the public interest that such an inquiry should be allowed, because it would tend to take from an officer of State his freedom of action in a matter concerning the public weal. If an officer of State were liable to an action of libel in respect of such a communication as this, actual malice could be alleged to rebut a plea of privilege, and it would be necessary that he should be called as a witness to deny that he acted maliciously. That he should be placed in such a position, and that his conduct should be so questioned before a jury, would clearly be against the public interest, and prejudicial to the independence necessary for the performance of his functions as an official of state. Therefore the law confers upon him an absolute privilege in such a case. 1128. DONAHOE v. RICHARDS SUPREME JUDICIAL COURT OF MAINE. 1854 38 Me. 379 ON exceptions from Nisi Prius, HATHAWAY, J., presiding. Trespass on the case. This action was brought by plaintiff, through her father, as her prochein ami, against the superintending school committee to recover damages for maliciously, wrongfully and unjustifiably expelling her from one of the town schools in Ellsworth. The plaintiff was 15 years of age, and was expelled for refusing to read in the school, of which she was a member, the Protestant version of the English Bible, which had previously been ordered to be used therein by the defendants. Rowe & Bartlett, in support of the exceptions. . . . The school committee exercise both administrative and judicial power. If they act oppressively in exercising the former, and exceed their jurisdiction in the latter, an action lies for damages, in favor of the party injured. The wrong done here is similar to that done by a moderator in refusing a vote at an election. The remedy should be similar. It has long been settled, that in such case, an action on the case will lie, and that without proof of malice. Ashley v. White, Ld. Raymond, 938, I Smith's Leading Cases, 105, and notes; Lincoln v. Hapgood, 11 Mass. 350. . . . J. A. Peters and R. H. Dana, Jr., of Massachusetts, contra. The defendants being public officers, exercising a discretion in the discharge of a public duty, judicial in its character, cast upon them by the law, are not liable to this action, while acting in good faith, without malice, and within their appropriate sphere. . . . The decision by the defendants on the necessity to "the peace and usefulness of the school," that the plaintiff should be expelled, is conclusive. Allen v. Blunt, 3 Story, 141. Lincoln v. Hapgood, 11 Mass. 350, cited by plaintiff, is an exception to the rule. It was not decided on authority, and has not been followed in any other State. ... APPLETON, J. . . . The defendants are public officers discharging important public trusts, and in the exercise of this authority necessarily clothed, to a certain extent, with judicial powers. In doing the act of which complaint is made, they were acting under the obligations of official duty and the sanctions of an oath. The plaintiff claims that when thus acting, and without malice or intentional wrong on their part, they can be held responsible in damages for an erroneous decision an error of judgment either as to the facts or as to the consequences rightly deducible therefrom. In fine, that they should be held liable if they erred in judgment upon a matter submitted to their determination, and upon which they were bound to act. By the Act of 1850, c. 193, art. 5, §'1, the powers and duties of superintending school committees are defined and established and the authority is given them "to expel from any school, any obstinately disobedient and disorderly scholar, after a proper investigation of his behavior, if found necessary for the peace and usefulness of the school; also to restore him to the school, on satisfactory evidence of his repentance and amendment." After investigation they are to determine what is to be done. If in the discharge of their duty in good faith and integrity, they err, it is only what is incident to all tribunals. To hold them legally responsible, in such a case, would be to punish them for the honest convictions of their understanding in the decision of a matter submitted to them, and upon which, having assumed jurisdiction, they could not rightly withhold a decision. The general principle is established by an almost uniform course of decisions, that a public officer, when acting in good faith, is never to be held liable for an erroneous judgment in a matter submitted to his determination. All he undertakes to do, is to discharge his duty to the best of his ability, and with integrity. That he may never err in his judgments, or that he may never decide differently from what some other person may think would be just, is no part of his official undertaking. The plaintiff rests her rights to recover upon the case of Lincoln v. Hapgood, 11 Mass. 350, where it was held, that an action could be maintained against the selectmen of a town for refusing to receive the vote of a qualified elector, although not chargeable with malice. This decision, though regarded as law in Massachusetts and in this State, is at variance with the law as established in England and in most of the States of this Union, in which the question has arisen. In the opinion of Parker, C. J., in Lincoln v. Hapgood, reference is made to Harmon v. |