Art. 4. Public Officers.

due care and skill. 23 Am. & Eng. Encyc. of Law, 377, citing Atwater v. Trustees of Canandaigua, 124 N. Y. 602 (608), which hold this rule on the authority of Transportation Co. v. Chicago, 99 U. S. 635; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, and other authorities, distinguishing St. Peter v. Denison, 58 N. Y. 416. Same rule, Garrott v. Trustees of Canandaigua, 135 N. Y. 436.

But a ministerial officer is, however, answerable for nonfeasance, misfeasance, or malfeasance. 23 Am. & Eng. Encyc. of Law, 377. He is not liable, however, for damages for nonfeasance, except upon proof showing an omission to perform a plain duty. Fitzpatrick v. Slocum, 89 N. Y. 358. A neglect of duty must be shown. Wooley v. Baldwin, 101 N. Y. 688. Lack of funds is a valid excuse. Clapper v. Town of Waterford, 131 N. Y. 382 (388), and cases cited. For neglect of duty imposed upon a board the members are not individually liable. The neglect is that of the corporate body. Bassett v. Fish, 75 N. Y. 303.

It is settled law that the public officer who acts maliciously toward another, or who, in the abuse of his office, and in violation of his duty, omits to act, or acts negligently, or proceeds without, or in excess of authority, is answerable for damages to any one he has specially injured thereby. Shearman & Redfield, § 313.

If the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance must be a public, not an individual, injury and must be redressed in some form of public prosecution; if, on the other hand, the duty, is a duty to the individual, then a neglect to perform it or perform it properly is an individual wrong, and may support an individual action for damages. Cooley, 379, citing Butler v. Kent, 19 Johns. 223.

A public officer while fully discharging the duties of his office is exempt from both civil and criminal liability, but if he steps outside of his duties, assumes a jurisdiction where the law gives him none, or acts negligently or contrary to the statute, he must answer for his conduct. Bishop, $8 771, 773, citing Kemp v. Neville, 10 C. B. (N. S.) 523; Hicks v. Dorn, 42 N. Y. 47. The latter case holds that a ministerial officer is bound to discharge his duties in a prudent, careful manner, without infringing upon the rights of private individuals, or unnecessarily injuring them, and for an improper discharge of his duty the law makes him liable to the individual injured. Citing Rochester White Lead Co.

Art. 4. Public Officers.

v. City of Rochester, 3 N. Y. 463; Robertson v. Chamberlain, 34 N. Y. 389; Barton v. City of Syracuse, 36 N. Y. 54.

A public officer is under constant obligation to discharge the duties of his office with reasonable skill and care, and if he fails in these, and damage ensues to one specially interested in the discharge of such duties, he becomes liable for such damage. Olmsted v. Dennis, 77 N. Y. 378. See also Clark v. Miller, 54 N. Y. 528.

Public officers, whose duties are not judicial, are answerable to any one specially injured by their careless or negligent performance of their duties as such. Adsit v. Brady, 4 Hill, 630. An individual who sustains an injury because of the misfeasance or nonfeasance of a public officer has a cause of action against such officer. Bryant v. Town of Randolph, 133 N. Y. 70.

One who, by contract with the State, assumes the duties and is invested with the powers of a public officer, is liable to the individual who sustained special damage by a neglect properly to perform such duties.

A public officer is liable for negligence or malfeasance to any one sustaining damage in consequence thereof. This is based on the broad principle of public policy essential to the public welfare; the law presumes that the office is created for the benefit of the public. Robinson v. Chamberlain, 34 N. Y. 389.

This rule is also true of one who assumes the duty and is invested with the powers of a public officer, and a recovery may be had where the assumption of official duty is alleged, together with the possession of official powers by the individual named, his failure to properly perform those duties and a resultant injury to the plaintiff caused by such negligence. Bennett v. Whitney, 94 N. Y. 302, citing Hover v. Barkhoof, 44 N. Y. 113, where it was held that the principle must be regarded as settled in this State that public officers whose duties are not judicial are answerable in damages to any one specially injured by their careless or negligent performance of or omission to perform the duties of their office.

In Clark v. Miller, 54 N. Y. 528, it was held that a ministerial officer charged by statute with an absolute and certain duty, in the performance of which an individual has a special interest, is liable to an action if he refuses to perform it, and he is not relieved from the consequences of his disobedience because it is

Art. 4. Public Officers.

prompted by an honest belief on his part that the statute is unconstitutional.

These and other authorities are cited, commented upon, and followed in Beardslee v. Dolge, 143 N. Y. 156 (165); Wright v. Shanahan, 149 N. Y. 495 (502).

But ministerial officers can only be made liable to an individual for damages caused by the alleged nonfeasance upon proof showing an omission on their part to perform a plain duty devolved upon. them by law. Fitzpatrick v. Slocum, 89 N. Y. 358.

When duties which are purely ministerial are cast upon officers whose chief functions are judicial, and the ministerial duty is violated, the officer, although for most purposes a judge, is still civilly responsible for such misconduct. Wilson v. Mayor of New York, 1 Den. 595.

A justice of the peace acts ministerially in making a return on appeal and is liable for damages for a false return. Millard v. Jenkins, 9 Wend. 298; McDonnell v. Buffum, 31 How. Pr. 154; Brooks v. St. John, 25 Hun, 540.

Where an individual is sued in tort for some act injurious to another in regard to person or property, he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense, he must show that his authority was sufficient in law to protect him. Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446 (452).

In Walsh v. Trustees of New York & Brooklyn Bridge, 96 N. Y. 427, it was held that the trustees of the bridge were agents of the States, and as such could not be held personally responsible for negligence.

In Walsh v. Mayor, etc., 107 N. Y. 220, it is held that the cities of New York and Brooklyn, for whom the trustees are agents, are liable for the negligent act of the trustees or persons employed by them.

In no event will an action lie at the suit of the individual against an officer for misbehavior in his office, either from misfeasance or nonfeasance, unless the plaintiff can show a special damage peculiar to himself. Butler v. Kent, 19 Johns. 223; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44 (62); Adler v. Metropolitan R. R. Co., 138 N. Y. 173 (180).

Persons acting as agents of the government in the performance

Art. 4. Public Officers.

of their duties are said not to be liable for neglect or misfeasance unless the liability is especially imposed by statute. Alamango v. Supervisors of Albany County, 25 Hun, 551, cited with approval, and collating other authorities, Hughes v. County of Monroe, 79 Hun, 120, 29 N. Y. Supp. 495.

This rule is placed upon the ground that such agencies, while engaged in that duty, stand so far in the place of the State and exercise its political authority, and do not act in any private capacity. Alamango v. Supervisors of Albany County, 25 Hun,

551.

It is held in Wright v. Shanahan, 149 N. Y. 495, that the negligent omission of a public officer to perform a ministerial duty or a proper discharge thereof renders him liable to be enjoined, and to respond in damages to the injured party. Citing numerous authorities.

Public officers charged with quasi-public trusts, in the discharge of which private persons are interested, are not answerable for the misconduct of their predecessors. Vose v. Reed, 54 N. Y. 657.

The liability of a sheriff for execution of process, etc., is fixed by section 102 of the Code, which provides that a mandate must be executed according to its command, and return made thereof. And that, for a violation of the provision, the sheriff or other officer, to whom the mandate is directed, is liable to the party aggrieved for the damages sustained by him in addition to any fine or other punishment authorized by law.

The authorities upon this point are numerous and are collated in the Annotated Codes under the appropriate section.

In justifying, under proceedings of tribunals of special, limited, and inferior jurisdiction, the material facts necessary to give jurisdiction must be alleged and proved. Walker v. Moseley, 5 Den. 102.

SUBDIVISION 2.

Liability for Acts of Subordinates.

If a public officer authorized the doing of an act not within the scope of his authority, or he is guilty of negligence in the discharge of duties to be performed by himself, he will be held responsible, but not for the misconduct or malfeasance of such persons as he is obliged to employ. Bailey v. Mayor of New York, 3 Hill, 531, 538, per Nelson, Ch. J.

Art. 4. Public Officers.

The general rule is firmly established that public officers and agents are not responsible for the misfeasance or positive wrongs, or for the nonfeasance or negligence of omission of duty of the subagents or servants, or other persons properly employed by and under them in the discharge of their official duties. A public officer is not responsible for the acts or defaults of subordinates, if the subordinates are public officers, even though they be selected by him and subject to his orders. Murphey v. Commissionrs, 28 N. Y. 134, citing Story on Agency, § 319.

In Wiggins v. Hathaway, 6 Barb. 632, it was held that a postmaster is not liable for the malfeasance or embezzlement of his clerks or deputies, and that the opinion is that a postmaster is not liable even for their negligence upon the ground that he is a public officer or agent of the government, and is allowed and required to appoint subagents, who become, by such appointment, also agents of the government.

In Donovan v. McAlpin, 85 N. Y. 185, the general principle is laid down that one acting gratuitously as a public officer is not liable for the negligence of the person necessarily employed in the execution of the order properly given by him. The doctrine of respondeat superior does not apply.

The responsibility of sheriffs for the acts of their deputies constitutes an exception to this rule. 19 Am. & Eng. Encyc. of Law (1st ed.), 495, citing 1 Bl. Comm. 344; Bacon's Abridgment, Sheriffs.

Upon this point it is said in McIntyre v. Trumbull, 7 Johns. 35, that the law is too well settled to be questioned that the sheriff is civilly answerable for the acts of his deputies.

SUBDIVISION 3.

To What Extent Protected by Process.

If the court issues to its proper officer its command in due form, where the court has jurisdiction of the case and the process is valid on its face, the officer is justified in executing it however inprovidently it was issued. Bishop, § 792.

Cooley, 538, defines process "fair on its face," as one which proceeds from a court, magistrate or body having authority of law to issue process of that nature, and which is legal in form and on its face contains nothing to notify or fairly apprise the officer that it is issued without authority.