CHAPTER VIII. PUBLIC OFFICERS. A Public administrative officer is liable to Sheriffs, constables, tax collectors, § 289. Special damages necessary to sustain suit, Deputies and assistants liable for their own § 286 a. negligence, § 295. Officers not personally liable to contractors Mail contractors, § 296. on official bonds, § 287. Not usually liable for neglects of official subordinates, but otherwise as to private servants, § 288. Clerks, prothonotaries, and registering officers, § 297. § 285. A public ministerial officer is liable to individuals for injuries sustained by the latter from his negligence in the discharge of his official duties. As a general rule, wherever an individual has suffered injury from the negligence of an administrative officer who therein acts contrary to his official duty, an action lies on behalf of the party injured. Nor is the fact that the defendant contracted faithfully to perform his duties, not to the plaintiff, but to the government, any defence, for the action is founded not on contract but on breach of duty.2 1 Kent Com. 610; Story on Agency, § 320, 32 1. Infra, § 443. Nowell v. Wright, 3 Allen, 166; Bartlett v. Crozier, 15 Johns. 250; Robinson v. Chamberlain, 34 N. Y. 389; Hover v. Barkhoof, 44 N. Y. 113; Sawyer v. Corse, 17 Grat. 230; Lipscomb v. Cheek, Phil. L. N. C. 332; Kennard v. Willmore, 2 Heiskill, 619. When a magistrate acts ministerially (e. g. in issuing process), he is liable for negligence. Tyler v. Alfred, 38 Me. 530; Noxen v. Hill, 2 Allen, 215; Smith v. Trawl, 1 Root, 165; Briggs v. Wardwell, 10 Mass. .356; Rochester White Lead Co. v. Rochester, 3 N. Y. 73. W. 109; Burnett v. Lynch, 5 B. & C. 589; Farrant v. Barnes, 11 C. B. (N. S.) 553; Marshall v. York, 11 C. B. R. 655. The cases are thus lucidly classified by Earl, C. J., in Hover v. Barkhoof, 44 N. Y. 113: "The first and most pointed is the case of Adsit v. Brady, 4 Hill, 630. That was an action against the defendant, a canal superintendent, to recover damages sustained by the plaintiff from collision with a sunken boat which it was alleged the defendant had negligently permitted to remain in the canal, and it was held that the plaintiff could recover. That 2 Winterbottom v. Wright, 10 M. & was an action for nonfeasance against § 286. Rule does not apply to judicial officers. — Judges, however, are, from the policy of the law, not liable for suits for negligence in the performance of their judicial duties.1 a public officer, receiving his compensation from the public and not from the individuals damaged, and in principle is precisely in point in favor of the plaintiff in this case. Judge Bronson, writing the opinion, lays down the broad proposition, that when an individual sustains an injury by the misfeasance or nonfeasance of a public officer, who acts, or omits to act, contrary to his duty, the law gives redress to the injured party by action adapted to the nature of the case. While that case has been criticised in several cases, it has never been overruled. It was approved by Judge Mason, in Hutson v. The Mayor, &c. 9 N. Y. 169; by Judges Peckham and Hunt, in Robinson v. Chamberlain, 34 N. Y. 389, and in various other cases that have fallen under my observation. It has stood, as the law, for twenty-seven years; and unless it can be clearly shown to be unsound in principle, it should be recognized as authority. It laid down no new principle; for nearly fifty years ago, Chief Justice Best, in Henly v. The Mayor of Lyme, 5 Bing. 91, said: 'I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer. The instances are so numerous that it would be a waste of time to refer to them.' And still earlier, Chief Justice Spencer, in Bartlett v. Crozier, 15 John. 250, said: 'It is a general principle of law, that whenever an individual has sustained an injury by the nonfeasance or mis 1 Bacon's Max. 17; Floyd v. Barker, 12 Rep. 23; Barnardistone v. Soane, 6 feasance of an officer who acts, or omits to act, contrary to his duty, the law affords redress by an action on the case adapted to the injury.' And these eminent judges were preceded by Chief Justice Holt, who more than a century earlier laid down the rule in Lane v. Cotten, 1 Salk. 17, that in every case where an office is intrusted by the common law or by statute, an action lies against him for a neglect of the duty of his office. "The case of Robinson v. Chamberlain was an action against a canal repair contractor, to recover damages which the plaintiff had sustained, because he had not discharged the duty imposed upon him by his contract, by permitting lock-gates to be out of repair. It was held, that while the defendant had entered into contract with the state only, and received his compensation from the state, he was a quasi public officer, owing duties to the public, and, as such, was liable to every individual who sustained damage by his neglect of his duties. Judge Peckham, likening the canals to a public highway, says: A failure to keep a public highway in repair by those who have assumed that duty from the state, so that it is unsafe to travel over, is a public nuisance, making the party bound to repair liable to indictment for the nuisance, and to an action at the suit of any one who has sustained special damage.' This case was followed in Fulton Fire Insurance Company v. Baldwin, 37 N. Y. 648. And in harmony with these cases in Shearman & Redfield on Neg. 198, the authors, adverting to the distinc How. St. Tr. 1093; Ely v. Thompson, 3 A. K. Mars. 76; Mostyn v. Fabrigas, § 286 a. Special damage to an individual necessary to sustain a suit for negligence in discharge of a public duty. - An individual cannot, for his own benefit, and in his own name, sustain a suit against another for negligence in discharge of a public duty, when the damage is solely to the public.1 The technical reason given for this in the English books is the inconvenience which would be produced if a person violating a general duty could be sued by each person in the community. A better reason is, that as the right infringed belongs to the sovereign, as representing the public at large, so the correlative duty is one for which the sovereign alone can sue.2 and return it. The duty of each is under the law: the sheriff's on certain prescribed terms; the postmaster's absolutely and unconditionally. It is now settled in New York, that, so far as concerns the question of remedy, there is no distinction between these two classes of public officers.' They further indorse the rule laid down by Judge Bronson, in Adsit v. Brady, that a public officer, not judicial, who, in his office, acts carelessly and negligently, or who, contrary to his duty, omits to act, or otherwise abuses his office, is answerable in damages to any one who is specially injured thereby." But at the same time wherever an indictment would lie for negligent discharge of a public duty, then an action for negligence can be maintained by any party specially injured by such negligence. This principle has been applied to suits against a municipal corporation for neglect in repairing certain banks and tion sought by some judges to be made between the liability of public officers, who receive a compensation from the public, and those who receive a compensation from individuals, deny that there is, in principle, any such distinction where public officers are charged with personal misconduct or negligence, and say: A sheriff who is paid for particular services by individuals, is no less a public officer than a postmaster who receives a salary from the government. The contract of each, usually confirmed by an oath, is with the government, to faithfully discharge the duties of his office. An individual who deposits a letter for transmission with a postmaster has as much right to insist upon the latter performing his duty in respect to his letter as he has to insist that a sheriff, to whom he directs a writ, shall faithfully execute Cowp. 161; Evans v. Foster, 1 N. H. 374; Tracy v. Williams, 2 Conn. 113; Taafe v. Downes, 3 Mood. P. C. 36. n.; Ryalls v. R. 11 Q. B. 796; Houlsen v. Smith, 14 Q. B. 841; Yates v. Lansing, Johns. 282; Pratt v. Gardiner, 2 Cush. 68; Colman v. Anderson, 1 1 Bla. Com. 220. Loss of mere contingent probable profits not enough. Butler v. King, 19 Johns. 223; Bank v. Mott, 17 Wend. 556. Ashby v. White, Ld. Raym. 938. 10 2 Mass. 356; Young v. Herbert, 2 Nott & Mc. 168; Cunningham v. Bucklin, 8 Cow. 178. Even private arbitrators are protected. Pappa v. Rose, L. R. 7 C. P. 32, 525; Tharsis v. Loftus, L. R. 8 C. P. 1. sea-shore, which it was obliged to do by charter, whereupon special damage occurred to the plaintiff.1 § 287. Officers not personally liable to contractors on official bonds. It is held in England that a public officer of the crown, contracting in his official capacity, is not personally liable on the contracts so entered into; in such cases, therefore, the rule of respondeat superior does not apply, such exceptions to it resulting from motives of public policy; for no prudent person would accept a public situation at the hazard of exposing himself to a multiplicity of suits by parties thinking themselves aggrieved.2 And such, as will be seen, is the law in the United States.3 1 Henley v. Mayor of Lyme Regis, 5 Bing. 91, 3 B. & Ald. 77; 2 Cl. & Fin. 331. "There is no doubt of the truth of the general rule, that where an indictment can be maintained against an individual or a corporation for something done to the general damage of the public, an action on the case can be maintained for a special damage thereby done to an individual, as in the ordinary case of a nuisance in the highway, by a person digging a trench across it, or by the default of the person bound to repair ratione tenurae. Upon this ground the corporation of Lyme Regis was held to be bound to compensate an individual for the loss sustained by non-repair of sea-walls in a case which was decided by the court of common pleas." Hartwell v. Ryde Commis. 3 B. & S. 361. 2 Per Dallas, C. J., Gidley v. Lord Palmerston, 3 B. & B. 286, 287; per Ashhurst, J., Macbeath v. Haldiman, 1 T. R. 181, 182. 8 "On a similar principle," says Mr. Campbell (Negligence, § 20), "is based the liability of certain public officers intrusted by the state with duties for which fees are exigible, and on the exact performance of which the security of private right depends. "The most familiar instance in this country is the liability of the sheriff 254 for failure in the due execution and return of process, and for an escape. In the latter case, it has been said that nothing but the act of God or the queen's enemies will excuse; that is to say, he warrants the exact performance of the duty. Atkinson on the office of a sheriff, § 10; Allen v. Carter, L. R. 5 C. P. 414; cf. Loyd v. Harrison, L. R. 1 Q. B. 502. This high degree of responsibility only applies between the sheriff and the person who employs him. For instance, his liability to the owners of goods seized under an execution is only that of an ordinary bailee intrusted with goods for sale. "In Scotland the duty of executing all the queen's writs, inclusive of the summons which in England may be served by anybody, belongs to messengers-at-arms. The liability of these officers in Scotland is substantially on a par with the liability of the sheriff in England. In the inferior courts in Scotland the execution of writs belongs to sheriff-officers, who are not mere servants of the sheriff, but are themselves responsible public officers. The rationale of the liability of these officers is well considered in the case of Brock v. Kemp, Feb. 20, 1844, Court of Session, 6 D. 709, where it is in effect held that the officer warrants the due execution of the writ." $288. Public officer not ordinarily liable for negligence of official subordinates, but liable, in cases where he would himself be liable, for negligence by his private servants. - An official subordinate, when appointed and recognized as an independent officer by the law, must stand or fall by himself; and to him, unless otherwise provided by statute, the maxim respondeat superior does not apply.1 "With regard to the responsibility of a public officer for the misconduct or negligence of those employed by or under him, the distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately, and paid by him and responsible to him, or whether they are his official subordinates, nominated perhaps by him, but officers of the government; in other words, whether the situation of the inferior is a public officer or private service. In the former case, the official superior is not liable for the inferior's acts; in the latter he is.' "The exemptions of public officers from responsibility for the acts and defaults of those employed by or under them in the discharge of their public duties," says Jaynes, J., in a case where the question was ably discussed in Virginia,3 "is allowed, in a great measure, from considerations of public policy. From like considerations it has been extended to the case of persons acting in the capacity of public agents, engaged in the service of the public, and acting solely for the public benefit, though not strictly filling the character of officers or agents of the government.” 4 In England the practice is to exempt the private property of certain officers from liability, in which case such officers, if sued in their corporate capacity, are bound by the official acts of their subordinates.5 8 Sawyer v. Corse, 17 Grat. 230. § 289. Sheriffs, constables, tax collectors. So far as concerns 1 Hall v. Smith, 2 Bing. 156; Find- 2 American Leading Cases (3d ed.), later v. Duncan 6 C. & F. 903; Nich- 621. olson v. Morrissey, 15 East, 384; McMillen v. Eastman, 4 Mass. 378; Franklin v. Low, 1 John. R. 396; Holliday v. St. Leonards, 11 C. B. (N. S.) 192; Lane v. Cotton, 1 Ld. Raym. 646; Whitfield v. Le Despencer, Cowp. 754; Dunlop v. Munroe, 7 Cranch, 242; Wriggins v. Hathaway, 6 Barb. S. C. 632; Schroyer v. Lynch, 8 Watts, 453. Citing Hall v. Smith, 2 Bingh. R. 156 (9 Eng. C. L. R. 357); Holliday v. St. Leonards, Com. B. (N. S.) R. 192 (103 Eng. C. L. R. 192.) See also Cornwell v. Vorhees, 13 Ohio R. 523; Hutchins v. Brackett, 2 Foster, 252. Mersey Docks v. Gibbs, L. R. 1 H. L. 93; 11 H. L. 686. |