or naval courts are entitled to the same exemption that is accorded to judges of civil tribunals.20 Indeed the rule we have been considering should be applied, whenever the officer in question is acting in a judicial capacity, under legal authority to hear and determine matters of dispute between individuals; and the cases cited in the last paragraph support this view.

Quasi-Judicial Officers. When persons are legally empowered to deal with and determine questions, which call for the exercise of deliberation, judgment, and discretion, but which do not involve the administration of justice between individuals," they are said to occupy a quasi-judicial position. Municipal officers belong to this class, when engaged in determining whether a sewer is necessary in a particular locality,22 or who is the "lowest responsible bidder giving adequate security."23 So do assessors, in determining whether a particular person is entitled to exemption from assessment, as a minister of the gospel, or in estimating the value of taxable property.24 School trustees and members of boards of education often act in a quasi-judicial capacity in deciding what children are entitled to attend school.25 The Postmaster-General of the United States, although ordinarily an executive officer, performs quasi-judicial functions, in settling the accounts of contractors with his department.26 County boards of supervisors are legislative bodies, but in examining and approving the sureties on official bonds, they act in a quasi-judicial capacity.27

In all such cases, the quasi-judicial officer is exempt from liability for the consequences of honest mistakes and errors of judgment, however harmful these may be to innocent persons. According to the weight of authority, his immunity does not extend beyond this, 28 although in some jurisdictions the full immunity of judi

20 See Dawkins v. Lord Rokeby, L. R. 7. H. L. 744, 45 L. J. Q. B. 8 (1875); Dawkins v. Prince Edward (1876), 1 Q. B. D. 499, 45 L. J. Q. B. 567.

21 Mills v. City of Rochester, 32 N. Y. 489, 495 (1865).

22 Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923 (1885).

23 East River Gas Light Co. v.

Donelly, 93 N. Y. 557 (1883).

24 Weaver v. Devendorf, 3 Den. (N. Y.) 117 (1846); Stearns V. Mills, 25 Vt. 20 (1852).

25 Stewart v. Southard, 17 Ohio, 402 (1848).

26 Kendall v. Stokes, 3 How. (U. S.) 87, 98 (1845).

27 Wasson v. Mitchell, 18 Ia. 153 (1864).

28 Cases in the last three notes;

31

cial officers has been accorded to him.29 In a leading case of the latter class it is said: "He is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done." 30 The reason for the prevailing view has been stated by a learned author 1 as follows: "By the express or implied terms of the officer's authority, he is to act honestly, carefully, and after the dictates of his own judgment, which, of necessity, being a human judgment, may err: therefore, when he has done what is thus commanded, whether the result is correct or not, he has exactly discharged his duty, and the law, which compelled this of him, will protect him, whatever harm may have befallen individuals. *** It follows that if the quasi-judicial act is corrupt, or even if it is negligent, it will not be protected." 32

.

also, Pikes v. Megoun, 44 Mo. 491 (1869); Gregory v. Brooks, 37 Conn. 365 (1870); Black v. Linn, 16 S. D. -; 96 N. W. 697 (1903).

29 Weaver v. Devendorf, 3 Den. (N. Y.) 117 (1846); Mills v. City of Brooklyn, 32 N. Y. 489 (1865); East River Gas-Light Co. v. Donnelly, 93 N. Y. 557 (1887); Seifert v. City of Brooklyn, 101 N. Y. 139 (1896).

30 Wilson v. Mayor, etc., of New York, 1 Den. (N. Y.) 595 (1845). Cf. Dillingham v. Snow, 5 Mass. 547 (1809), where quasi-judicial officers are likened to judges of inferior courts, but their liability for malicious acts is left undecided.

31 Bishop, Non Contract Law, § 787.

In the famous case of Bernardiston v. Soame, (2 Lev. 114, 6 Howell's State Trials, 1092-1120 (1674 and 1689), the plaintiff charged the defendant, as sheriff, with maliciously making a false return of an election, which plaintiff claimed

had resulted in his election to the House of Commons, while according to the sheriff's return he had been defeated. At the trial, Twysden, Rainsford, and Wylde, judges of the King's Bench, charged the jury, that if they believed the return was made maliciously, they should find for the plaintiff. A verdict was given in plaintiff's favor for £800. On motion in arrest of judgment, it was held by Hale, C. J., and Twysden and Wylde, JJ., (Rainsford, J., doubting) that for as much as the return is said to be false and malicious and with intent to put the plaintiff to charge and expense to prove his election, and so found by the jury, the action lay and judgment was given for the plaintiff." This decision was reversed by the Exchequer Chamber, and the reversal was affirmed by the House of Lords. The principal ground of reversal is stated by North, C. J., as follows: "The sheriff, as to the declaring the

HARMS THAT ARE NOT TORTS.

37

§ 4. HARMS INFLICTED BY ACTS OF STATE.

Another class of harms, which are not torts, are those inflicted by acts of State. They are not of frequent occurrence, being limited to injuries done to the subjects of one nation by the sovereign authority of another, or by the subjects of that other and ratified by it. A typical example is supplied by Buron v. Denmam.33 The defendant, a captain in the British navy caused certain barracoons on the west coast of Africa to be burned and the slaves contained in them to be released. His conduct, although not authorized by previous orders, was approved and ratified by the British government. Thereafter, the owner of the slaves sued the captain for their loss, but it was held that the action would not lie because the captain's acts were acts of State. The principle underlying this and similar decisions has been stated in various forms. One statement is "that the acts of a sovereign State are final and can be called in question only by war or by an appeal to the justice of the State itself. They cannot be examined into by the courts of the State which does them." 34 Another form of statement is: "The transactions of independent States between each other are governed by other laws than those which municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make." 35 The principle has been stated in still another form as follows: When an act, injurious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the British government, it becomes an act of the State, and the pri

majority is judge; and no action will lie against a judge, for what he does judicially, though it be laid falso, malitiose et scienter." Lord North refers to the fact that the sheriff often acts ministerially, and declares that when acting in that capacity, a different rule of liability applies. When acting quasi-judicially, however, he asserts, the sheriff should have the same protection that is accorded to any judge in

Westminster Hall.

33 2 Exch. 167, 188-9 (1847). The same principle is applied in Lamar v. Brown, 92 U. S. 187 (1875), and The Paquette Habana, 189 U. S. 453, 465, 23 Sup. Ct. 593 (1902).

Stephen, History of the Criminal Law of Eng. Vol. 11 p. 64.

Secretary of State in Council of India v. Kamachee Boye Sahaba 13 Mo. P. C. 22, 75 (1859).

vate right of action becomes merged in the international question which arises between the British government and that of the foreigner." 36

Similar considerations have led to the adoption of the rule that neither the sovereign prince of an independent power, nor its duly accredited representative, is liable in tort for harm inflicted upon individuals, while sojourning in a foreign country. Redress for such an injury must be sought not in the ordinary courts of justice, but through the channels of international diplomacy. The principle deducible from the cases on this topic has been judicially declared to be "that, as a consequence of the absolute independence of every sovereign authority, and of international comity, which induces every sovereign State to respect the independence and dignity of every other sovereign State, each and every one declines to exercise, by means of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador, of any other

36 Cockburn, C. J., in Feather v. The Queen, 6 B. & S. 257, 296 (1865), cf. People v. McLeod, 25 Wend. 483; 1 Hill, 377 (1841), in which the Supreme Court of New York refused to adopt this view. Mr. Webster declared in the U. S. Senate, that the opinion in that case

was

not a reputable opinion, either on account of the results reached, or the reasoning on which it proceeds." In his letter of instruction to the Atttorney-General concerning the McLeod case, Mr. Webster wrote: "If the attack on the Caroline was unjustifiable, as this Government has asserted, the law which has been violated is the law of Nations; and the redress which is to be sought is the redress authorized in such cases by the provisions of that code." After remarking, that if McLeod had been arrested by a United States officer, he would have been discharged by the Federal Government, while had he been sued for damages in a civil

action he must have availed himself of his defense in judicial proceedings, Mr. Webster added: "But whether the process be criminal or civil, the fact of having acted under public authority and in obedience to the order of lawful superiors, must be regarded as a valid defense; otherwise, individuals would be holden responsible for injuries resulting from the acts of government and even from the operations of war." Curtis' Life of Webster pp. 66--69. At that time, the Federal Government was unable to take McLeod from the jurisdiction of the State Court, but serious international difficulty was avoided by the verdict of acquittal. By an act of Congress, passed Aug. 29, 1842, (now a part of § 753, U. S. R. S.), authority, in such a case was given to the Federal courts to remove the foreign subject from the jurisdiction and control of the State tribunals and officers,

State, or over the public property of any ambassador, though such sovereign, ambassador or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction." 37 Liability of Government Officials to Fellow Citizens. The immunities, which we have been considering, do not extend to government officials and agents, in their dealings with fellow citizens or subjects. It is true, the sovereign cannot be made a defendant in an action for a tort against a subject, nor in this country, can the government of the Union or of a State be proceeded against in such an action, unless it consents to be so sued.38 Even