§ 680. Judicial officers; personal liability. A judicial officer is one having the authority to hear and determine the rights of persons or property or the propriety of doing an act; 485 one representing the highest type of public officials to whom has been granted the power to perform duties involving the elements of judgment and discretion. The authorities, without exception, sustain the rule that such an officer, irrespective of motives, is not liable for the results of an official act 437 within his jurisdiction 38 and in respect to which he has jurisdiction,439 how、 436 (N. Y.) 229; Parker v. Walrod, 16 Wend. (N. Y.) 514; Imbert v. Hallock, 23 How. Pr. (N. Y.) 456; Frost v. Thomas, 24 Wend. (N. Y.) 418; Shaw v. Davis, 55 Barb. (N. Y.) 389; United Lines Tel. Co. v. Grant, 137 N. Y. 7; State v. Queen, 66 N. C. 615; Champaign County Bank v. Smith, 7 Ohio St. 43; McKinney v. Robinson, 84 Tex. 489; Pierson v. Gale, 8 Vt. 512; Driscoll v. Place, 44 Vt. 252; Sprague v. Birchard, 1 Wis. 457. The rule applies where the officer knows of a want of jurisdiction on the part of the court issuing the process though the writ is regular on its face. Eaton v. White, 2 Wis. 292. 435 Grider v. Tally, 77 Ala. 422; People v. Bartels, 138 Ill. 322; Hatcher v. Dunn, 102 Iowa, 411, 36 L. R. A. 689; Amperse v. Winslow, 75 Mich. 234; State v. Sneed, 84 N. C. 816. 436 Bradley v. Fisher, 80 U. S. (13 Wall.) 335; Irion v. Lewis, 56 Ala. 190; Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630; Henke v. McCord, 55 Iowa, 378; Pratt v. Gardner, 56 Mass. (2 Cush.) 68; Evans v. Foster, 1 N. H. 377; Barhyte v. Shepherd, 35 439 Randall v. Brigham, 74 U. S. (7 Wall.) 523; Stewart v. Cooley, 23 Minn. 347; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 242; Rains v. Simpson, 50Tex. 495; Johnston v. Moorman, 80 Va. 131. 437 Bradley v. Fisher, 80 U. S. (13 Wall.) 351; Hunt v. Hunt, 72 N. Y. 217; Lange v. Benedict, 73. N. Y. 12, 29 Am. Rep. 80, and cases therein cited. See, also, Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129. 438 Bradley v. Fisher, 80 U. S. (13 Wall.) 335. "In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such au N. Y. 463; Yates v. Lansing, 5 Johns. (N. Y.) 282; Lange v. Bene dict, 73 N. Y. 12. ever injuriously such an act may have resulted to persons or property or however erroneous it may be considered by one thus affected.440 Such a rule of nonliability is justified not only by public policy but also by the character of the duties performed." It is well considered and stated with reasons and many authorities in a recent text book 442 and it is unnecessary here to further con thority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to the judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons." Holcomb v. Cornish, 8 Conn. 375; Hitch v. Lambright, 66 Ga. 228; Estopinal v. Peyroux, 37 La. Ann. 477; Wright v. Rouss, 18 Neb. 234; Taylor v. Anderson, 6 Ohio, 144; Truesdell v. Combs, 33 Ohio St. 186; Kibling v. Clark, 53 Vt. 379. 440 Pratt v. Gardner, 56 Mass. (2 Cush.) 63; Mangold v. Thorpe, 33 N. J. Law, 134; Yates v. Lansing, 5 Johns. (N. Y.) 282; Fausler v. Parsons, 6 W. Va. 486. 441 Butler v. Bates, 7 Cal. 136; Marshall County Sup'rs v. Cook, 38 Ill. 44, 87 Am. Dec. 282; MeCaslin v. State, 99 Ind. 428; State v. Bank of Missouri, 45 Mo. 528. 442 Cooley, Torts (2d Ed.) p. 444. "For mere neglect in judicial duties no action can lie. A judge can sider the question except to quote from a decision of the supreme not be sued because of delaying his judgments, or because he fails to bring to his duties all the care, prudence, and diligence that he ought to bring, or because he decides on partial views and without sufficient information. His selection for his office implies that he is to be governed in it by his own judgment; and it is always to be assumed that the judgment has been honestly exercised and applied. * His doing justice as between particular individuals, when they have a controversy before him, is not the end and object which were in view when his court was created, and he was selected to preside over or sit in it. Courts are created on public grounds; they are to do justice as between suitors, to the end that peace and order may prevail in the political society, and that rights may be protected and preserved. The duty is public, and the end to be accomplished is public: the individual advantage or loss results from the proper and thorough or improper and imperfect performance of a duty for which his controversy is only the occasion. The judge performs his duty to the public by doing justice between individuals, or, if he fails to do justice as between individuals, he may be called to account by the state in such form and before such tribunal as the law may have provided. But as the duty neglected is not a duty to the individual, civil redress, as for an individual injury, is not admissible. This, as we shall see hereafter, is not the sole reason for judicial exemption from individual suits, but it is one reason, and a very con clusive one. * * * If, however, we select the case of any judicial officer and endeavor to satisfy ourselves what would be the practical working of the opposite doctrine, we shall not be long in doubt that reasons abundant exist why the judge should be exempt from individual responsibility to those interested in the discharge of his duties. We shall also be able to perceive that while the upright judge may have reasons for desiring to be shielded against harassing litigation at the suit of those who may be displeased with his action, the general public has interests still more important which demand for him this immunity." * Whenever, therefore, the state confers judicial powers upon an individual, it confers them with full immunity for private suits. In effect, the state says to the officer that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the state, and the peace and happiness of society; that if he shall fail in the faithful discharge of them he shall be called to account as a criminal; but that in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages. This is what the state, speaking by the mouth of the common law, says to the judicial officer." court of the United States 442a where it is said: "The truth of this later observation is manifest to all persons having much experience with judicial proceedings in the superior courts. Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in those courts, in which there is a great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the judge the severest labor, and often create in his mind a painful sense of responsibility. Yet it is precisely in this class of cases that the losing party feels most keenly the decision against him, and most readily accepts anything but the soundness of the decision in explanation of the action of the judge. Just in proportion to the strength of his convictions of the correctness of his own view of the case he is apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision often finds vent in imputations of this character, and from the imperfections of human nature this is hardly a subject of wonder. If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a judge for his official acts would hestitate to ascribe any character to the acts which would be essential to the maintenance of the action. "If upon such allegations a judge could be compelled to answer in a civil action for his judicial acts, not only would his office be degraded and his usefulness destroyed, but he would be subjected for his protection to the necessity of preserving a complete record of all the evidence produced before him in every litigated case, and of the authorities cited and arguments presented, in order that he might be able to show to the judge before whom he might be summoned by the losing party-and that judge perhaps one of 442a Bradley v. Fisher, 80 U. S. (13 Wall.) 335. an inferior jurisdiction-that he had decided as he did with judicial integrity; and the second judge would be subjected to a similar burden, as he in his turn might also be held amenable by the losing party. ** * *The exemption of judges of the superior courts of record from liability to civil suits for their judicial acts existing when there is jurisdiction of the subject-matter, though irregularity and error attend the exercise of the jurisdiction, the exemption cannot be affected by any consideration of the motives. with which the acts are done. The allegations of malicious or corrupt motives could always be made, and if the motives could be inquired into judges would be subjected to the same vexatious litigation upon such allegations, whether the motives had or had not any real existence. Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort. But for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction, the judges of these courts can only be reached by public prosecution in the form of impeachment, or in such other form as may be specially prescribed." § 681. Jurisdiction. The principle above stated will not apply where the public official was acting in a private capacity without his jurisdiction or in respect to a matter as to which he did not possess jurisdiction. Jurisdiction has been defined as "the authority of law to act officially in the matter then in hand," 443 and may include jurisdic tion of the person, of the subject-matter or of the thing involved. A judicial officer has jurisdiction of the person when one is before a particular court by reason of the service of legal and appropriate process duly executed or by his voluntary appearance." 444 Jurisdiction of the subject-matter is the power to adjudge concerning the general question involved and is not dependent upon the state of facts which may appear in a particular case arising or which is claimed to have arisen under that general question. It is the right to exercise judicial power over a particular class. 443 Collier v. State, 2 Stew. (Ala.) 388; Fain v. Garthright, 5 Ga. 12 Abb. Corp. Vol. II—42. 444 Cooper v. Reynolds, 77 U. S. (10 Wall.) 308; Lange v. Benedict, 73 N. Y. 12. |