Broom v. Douglass

57 So. 860, 175 Ala. 268, 1912 Ala. LEXIS 150

• Court: Supreme Court of Alabama
• Decided: February 15, 1912
• Status: Published

Opinions

SOMERVILLE, J.

Appellant sued appellee in trespass for a false imprisonment, done under color of appellee’s official authority as a justice of the peace.

Defendant’s plea No. 2 set up an alleged justification, and showed that one Johnson appeared before him (defendant) while he was acting as a justice of the peace, and made affidavit “that Henry Broom [the plaintiff here] has threatened to trespass upon and occupy a certain parcel of land situated in this county, and known as the Dick Mitchell or Dick Bouldin place, of which affiant has the past two or three years been in possession under claim of ownership;” that on this affidavit the justice issued a warrant of arrest for said Broom; that Broom was arrested on this warrant and brought before the justice; that on the hearing of the cause the justice adjudged that said Broom should be committed to the county jail for 12 months, unless he gave a bond to keep the peace; and that in doing these things he (defendant) was acting judicially. Plaintiff demurred to this plea on the grounds substantially (1) that the affidavit conferred on the justice no jurisdiction to issue the warrant; and (2) that the affidavit did not charge that any criminal offense had been committed or threatened. The trial court overruled the demurrer, and this action is assigned as error.

Conceding, as we must, that the affidavit shoAvn did not charge that Broom had threatened or was, about to-commit, “an offense on the person or property of another,” the threat shoAvn being, if executed, only a civil Avrong, and that the Avarrant of arrest was for this reason void, the question to be determined is: Is a judge of inferior and limited jurisdiction liable in trespass-when, acting within his general jurisdiction of the subject-matter, but without conformity to the preliminary requirements which alone give him jurisdiction of the-person and authorize him to proceed to exercise his general jurisdiction in the particular case, he issues process-actually void, under which such person is unlawfully taken and restrained of his liberty? The ansAver, Ave think, Avill depend upon a consideration to be stated hereafter.

The general question above mooted has been the subject of much discussion by courts and text-Avriters, and the books exhibit great diversity of opinion as to its-proper solution. It involves and draws into sharp conflict two fundamental and equally cherished principles of our legal system — the inviolability of persona] iiberty, except under the strictest forms of law, on the one hand, and the dignity and independence of the judiciary, on the other. It is complicated, also, by much. confusion- of thought with respect to the theory of jurisdiction in its two-fold aspect of subject-matter and person.

We need hardly say that the question is not merely whether the injurious process is irregular or utterly void, but, primarily, it is whether, on principles of sound public policy, the judge should be held liable for his action as a judge. Whether or not an executive officer would be liable for the execution of the process is an altogether different question, and is unaffected by the ■decisive considerations of policy here involved. These ■considerations have been so often and so well stated that anything more than a brief recapitulation of settled conclusions is now unnecessary.

We deduce from approved authorities the following-principles as pertinent to the present case:

(1) The judge of a court of superior or general juris■diction is not liable for any judicial act in excess of his jurisdiction which involves a present or previous affirm.ative decision of the fact of his jurisdiction, even •though such decision is wholly erroneous, provided .there is not a clear absence of all jurisdiction. — Busteed v. Parsons, 54 Ala. 393, 25 Am. Rep. 688; Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646 (leading case) ; Yates v. Lansing, 9 Johns. (N. Y.) 395, 6 Am. Dec. 290; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80.

(2) The fact that such judge acts maliciously or corruptly in such cases does not render him liable. — Busteed v. Parsons; Bradley v. Fisher, supra; 19 Cyc. 333; note to Lacey v. Hendricks, 137 Am. St. Rep. 47.

(3) A fortiori, the judge of a court of inferior or limited jurisdiction is liable when he acts without a general jurisdiction of the subject-matter, even though his act involves his decision, made in perfect good faith, that he has such jurisdiction.

(4) Wlien such judge acts fully within his jurisdiction, i. e., when he has jurisdiction of the subject-matter, and has also acquired jurisdiction of the person in the particular case, he is not liable, though he act both maliciously and corruptly. — Irion v. Lewis, 56 Ala. 190; Heard v. Harris, 68 Ala. 43; Coleman v. Roberts, 113 Ala. 323, 21 South. 449, 36 L. R. A. 84, 59 Am. St. Rep. 111; Woodruff v. Stewart, 63 Ala. 206; Lacey v. Hendricks, 164 Ala. 280, 51 South. 157, 137 Am. St. Rep. 45.

(5) When such judge acts judicially with respect to a subject-matter of which he has a general jurisdiction, but in the particular case he has acquired no jurisdiction of the person affected, he is not liable if the act involves his present or previous affirmative decision that he has jurisdiction of such person and authority to proceed in the particular case, provided (1) a colorable case has been presented to him which fairly calls for or permits the exercise of his judgment with respect.thereto; and provided (2.) he has determined in good faith, without malice or corruption, that the case presented calls for the exercise of his general jurisdiction. — Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412 (leading case) ; Rush v. Buckley, 100 Me. 322, 61 Atl. 774, 70 L. R. A. 464, 4 Ann. Cas. 318; McCall v. Cohen, 16 S. C. 445, 42 Am. Rep. 641; Bell v. McKinney, 63 Miss. 187; Gardner v. Couch, 137 Mich. 358, 100 N. W. 673, 109 Am. St. Rep. 684; Smith v. Jones, 16 S. D. 337, 92 N. W. 1084; Thompson v. Jackson, 93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 92; Robertson v. Barker, 99 Wis. 652, 75 N. W. 423, 67 Am. St. Rep. 889; Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630, 71 Am., St. Rep. 254; Stewart v. Hawley, 21 Wend. (N. Y.) 552; Landt v. Hilts, 19 Barb. (N. Y.) 283; Ayers v. Russell, 50 Hun, 382, 3 N. Y. Supp. 338; Bocock v. Cochran, 32 Hun (N. Y.) 523; Harman v. Brotherson, 1 Denio (N. Y.) 537; Gillett v. Thicbald, 9 Kan. 427.

We, of course, do not affinn that all of these cases have elaborated the principle in precise terms. Some of them have, and others (dearly illustrate its operation.

There are numerous cases which support the view that a judge of limited and inferior jurisdiction is liable in every case where he acts merely in excess of his actual jurisdiction, so that his act is void, as distinguished from voidable or irregular. — Bigelow v. Stearns, 19 Johns. (N. Y.) 39, 10 Am. Dec. 189; Yates v. Lansing, 9 Johns. (N. Y.) 395, 6 Am. Dec. 290; Graman v. Raymond, 1 Conn. 40, 6 Am. Dec. 200; De Courcey v. Cox, 94 Cal. 605, 30 Pac. 95; and many other cases cited in notes to Rush v. Buckley, 4 Ann. Cas. 325-332; Tryon v. Pingree, 67 Am. St. Rep. 423; and Austin v. Vrooman, 14 L. R. A. 138.

These cases, however, proceed in general on the narrow view that a void act necessari-ly imposes liability, which assumes, in accordance with a once much favored theory, that there is a radical distinction between the acts, of judges of high and judges of low degree in excess of their jurisdiction, to the extent that the one class should never be held liable, while the other should always be. That there is in reason, justice, or policy any such radical distinction has long been subject to doubt, and is increasingly denied by the best-considered modern cases and by standard text-writers. — Rush v. Buckley, 100 Me. 322, 61 Atl. 774, 70 L. R. A. 464, 4 Ann. Cas. 318; Thompson v. Jackson, 93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 92, and editorial note; Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254; Bishop’s Noncontract Law, § 783; Throop on Public Officers, § 720; 1 Jaggard on Torts, 122. And there can be no doubt, we think, but that the distinction is sufficiently emphasized and public policy fully sub-served by the requirement of 'good faith, without malice or corruption, with at least a colorable invocation of the judicial function in the particular case.

Our views upon this subject are so fully and satisfactorily stated by Beasley, C. J., in Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412, that we adopt his language as a part of this opinion. He said, in part:

“It is said everywhere in the text-books and decisions that the officer, in order to entitle himself to claim the immunity that belongs to judicial conduct, must restrict his action within the bounds of his jurisdiction, and jurisdiction has been defined to be ‘the authority of law to act officially in the particular matter at hand.’ —Cooley on Torts, 417. But these maxims, although true in a general way, are not sufficiently broad to embrace the principle of immunity that appertains to a court or judge exercising a general authority. Their defect is that they leave out of the account all those cases in which the officer in the discharge of his public duty is bound to decide Avhether or not the particular case, under the circumstances as presented to him, is within his jurisdiction, and he falls into error in arriving at his conclusion. In such instance, the judge, in point of fact and law, has no jurisdiction, according to the definition just given, over ‘the particular matter in hand/ and yet, in my opinion, very plainly he is not responsible for the results that Avait upon his mistake. And it is upon this precise point that Ave find confusion in the decisions. There are certainly cases Avhich hold that if a magistrate, in the regular discharge of his functions, causes an arrest to be made under his Avarrant on a complaint which does not contain the charge of a crime cognizable by him he is anSAverable in an action for the injury that has ensued. But I think these cases are deflections from the correct rule; they make no allowance for matters of doubt and difficulty. If the facts presented for the decision of the justice are of uncertain signification with respect to their legal effect, and he decided one way, and exercises a cognizance over the case, if the superior court, in which the question arises in a suit against the justice differs with him on this close legal question, is he open, by reason of his error, to an attack by action? If the officer’s exemption from liability is to depend on the question whether he had jurisdiction over the particular case, it is clear that such officer is often liable under such conditions, because the higher court, in deciding a doubtful point of law, may have declared that some element was wanting in the complaint which was essential to bring this case within the judicial competency of the magistrate. But there are many decisions which, perhaps, without defining any very clear rule on the subject, have maintained that the judicial officer was not liable under such conditions. The very copious brief of the counsel of the defendants abounds in such illustrations. * *

“These decisions, in my estimation, stand upon a proper footing, and many others of the same kind might be referred to; but such course is not called for, as it must be admitted that there is much contrariety of results in this field, and the references above given are amply sufficient as illustrations for my present purposes. The assertion, I think, may be safely made that the great weight of judicial opinion is in opposition to the theory that if a judge, as a matter of law and fact, has not jurisdiction over the particular case that thereby, in all cases, he incurs the liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer having general powers of judicature must, at his peril, pass upon the question, which is often one difficult of solution, whether the facts before him place the given case under his cognizance, is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all courts and to all judicial officers acting under a general authority, and it would thus involve in its liabilities all tribunals, except those of last resort. It would also subject to suit persons participating in the execution of orders and judgments rendered in the absence of a real ground of jurisdiction. By force of such a rule, if the Supreme Court of this state, upon a writ being served in a certain manner, should declare that it acquired jurisdiction over the defendant, and judgment should be entered by default against him, and if, upon' error brought, this court should reverse such judgment on the ground that the service of the writ in question did not give the inferior court jurisdiction in the case, no- reason can be assigned why the justices of the Supreme Court should not be liable to suit for any injurious corn-sequences to the defendant proceeding from their judgment. As I have said in my judgment, the jurisdictional test of the measure of judicial responsibility must be rejected.

“Nevertheless it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdiction by a judge will impose upon him a liability to an action in favor of the person who has been injured by such excess. If a magistrate should, of his own motion, without oath or complaint being made to him, on mere hearsay, issue a warrant and cause an arrest for an alleged larceny, it cannot be doubted that the person so illegally imprisoned could seek redress by a suit against such officer. It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offenses; for tlie conclusive reply would be that this particular case was not, by any form of proceeding, put under his authority.

“From these legal conditions of the subject, my inference is that the true general rule with respect to the actionable responsibility of a judicial officer having the right to exercise general powers is that he Is so responsible in any given case belonging to a class over which he has cognizance, Tin!ess such case is by complaint or other proceeding put at least colora-bly under his jurisdiction. Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to the person affected by his de-. cisión, whether such decision be right or wrong. But when no facts are present, or only such facts as have neither legal value nor color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not, in any manner, the performance of a judicial act, but simply the commission of an unofficial wrong. This criterion seems a reasonable one; it protects a judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that is practically willful; such protection is necessary to the independence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression.

“The application of the above-stated rule to this case must obviously result in a judgment affirming the decision of the circuit judge. There was a complaint, under oath, before this justice, presenting for his consideration a set of facts to which it became his duty to apply the law. The essential things there stated were that the plaintiff, in combination with two other persons, entered upon certain lands, and Svith force and arms did unlawfully carry away about four hundred bundles of cornstalks, of the value/ etc., and were engaged in carrying other cornstalks from said lands. By a statute of this state (Rev. p. 244, § 99), it is declared to be an indictable offense hi any person shall willfully, unlawfully and maliciously’ set fire to or burn, carry off, or destroy any barrack, cock, crib, rick or stack of hay, corn, wheat, rye, barley, oats, or grain of any kind, or any trees, herbage, growing grass, hay or other vegetables, etc. Now, althouglf the misconduct described in the complaint is not the misconduct described in this act, nevertheless the question of their identity was colorably before the magistrate, and it was his duty to decide it; and under the rule above formulated he is not answerable to the person injured for his erroneous application of the law to the case that was before him.”

By “excess of jurisdiction,” as distinguished from the entire absence of jurisdiction, .we understand and mean that the act, though within the general power of the judge, is not authorized, and therefore void, with respect to the particular case because the conditions which alone authorize the exercise of his general power in that particular case are wanting; ánd hence the judicial power is not in fact lawfully invoked.

By a “colorable cause,” or a “colorable invocation of jurisdiction,” as applied to cases like the instant one, we understand and mean that some person, apparently qualified to do so, has appeared before the justice and made complaint under oath and in writing, stating at least, some fact or facts which enter into and may, under some condition, or in co-operation with some other unstated fact or facts, constitute a criminal offense, or stating some fact or facts which bear some general similitude to a fact or facts designated by law as constituting an offense; in either case, calling upon the justice to pass upon their sufficiency to elicit the process issued.

A less general definition is not practicable, even were it expedient, and what we have said will serve to illustrate the general scope of this requirement. Whether it is met is, of course, a question of law for the court; while the issue of good faith, malice, or corruption is ordinarily for the jury to determine. We have exanfi ined all the decisions of this court upon the general question under consideration, and, with a single exception, find none in conflict wit! the rule we now adopt.

In Duckworth v. Johnston, 7 Ala. 581, the warrant was held void, because the affidavit charged no offense. The justice was not sued, and the only conclusion was that the officer who executed it, and the party .who caused it to be issued, were liable in trespass. To the same effect, is Crumpton v. Newman, 12 Ala. 199, 46 Am. Dec. 251.

In Sasnatt v. Weathers, 21 Ala. 674, the suit was in trespass against the justice and the constable. The justice had rendered a judgment for costs against the plaintiff in preliminary proceedings for a felony, which he had absolutely no authority to do in any phase of the case. On this void judgment, he issued an execution ■ — a purely ministerial act. The writ was held void, and the justice was held liable for issuing it and the constable for executing it. The question of liability for judicial action was not presented.

In Withers v. Coyles, 86 Ala. 320, the mayor of Mobile was held liable for trespass to a slave whom he had imprisoned under an ordinance “for the punishment of vagrants and disorderly persons;” this court holding that the ordinance was applicable only to free persons, and not to slaves, although the word “persons” sometimes inclxxded slaves. Inasmuch as the magistrate was called upon to constx-ue the ordinance as to its proper application, to persons, and liis decision of the question was a judicial act with a colorable foundation, we think the conclusion that he was liable for his erroneous construction of the language of the ordinance was not justified on principle, and is not supported by any authority. We are therefore unwilling to follow this decision.

In Craig v. Burnett, 32 Ala. 728, the members of the town council' of Cahaba were ex officio justices of the peace. Sitting as a town council, and not as magistrates, they convicted the plaintiff of an offense within their jurisdiction as magistrates, and ordered him to be imprisoned in default of payment of the fine. This judgment was, of course, fundamentally void, as was also the town clerk’s warrant of arrest. Under’ this pseudo-judgment, the mayor committed plaintiff to the custody of the town marshal, and he sued mayor, clerk, and marshal for the false imprisonment. There was here no judicial action, and liability attached as a matter of course. Comment is unnecessary; but the language of the opinion by Walker, J., is worthy of notice: “If it appeared that the fact, upon which the jurisdiction of the council over the matter of the imprisonment depended was judicially considered and adjudged by the council, then the defendants would not be liable for their mere error of judgment. Every judicial tribunal, invested with authority to be exercised in a certain contingency, has authority to inquire and ascertain whether the contingency has occurred. Where jurisdiction depends upon the existence of a preliminary fact, there is authority to decide whether that fact exists. A court is entitled to as full protection against an error of judgment in reference to the existence of the jurisdictional fact as in reference to the merits of the suit.” (Italics o.urs.) '’ It will be noted, also, that no distinction is recognized between superior and inferior judges. The loose, if not inaccurate, treatment of this subject in some of the early cases is well illustrated by the citation of this case in support of the conclusion reached in Withers v. Coyles, supra, with which it is evidently wholly inconsistent.

In Woodall v. McMillan, 38 Ala. 622, the action was trespass for a false imprisonment against the prosecutor for causing a justice of the peace to issue a warrant of arrest for plaintiff on an affidavit charging him with the commission of the crime of perjury at Huntsville, in a neighboring county. There being no jurisdiction of the subject-matter, the warrant was held void, and the prosecutor held liable. It would seem that the justice also would 'have been liable under the rule Ave announce.

In Heard v. Harris, 68 Ala. 43, the principle of the rule Avas expressly left undecided; Brickeld, C. J., saying: “Whether it be true or not the personal protection the maxim [of judicial exemption] affords is confined, when the authority of an inferior jurisdictional officer, like a justice of the peace, is drawn in question, to matters Avithin their jurisdiction, or Avhether he is entitled to protection because he may have erroneously adjudged he had jurisdiction, and whether, at his peril, he adjudges that question, avc do not consider.”

In McLendon v. A. F. L. M. Co., 119 Ala. 518, 21 South. 721, a justice of the peace was held liable for falsely certifying an acknoAAdedgment, to a deed; the grantor not having made the acknowledgment, nor even appeared before the justice for the purpose. Although the certificate of acknowledgment is, under our decisions, a judicial act, it is manifest that it Avas here without any color of authority, and there was nothing to challenge his judicial action. Indeed, it was prima facie malicious or corrupt.

Iii Crosthwait v. Pitts, 139 Ala. 421, 36 South. 83, the same conclusion, on the same facts, is reaffirmed.

In the recent case of Earp v. Stephens, 1 Ala. App. 447, 55 South. 270, a justice of the peace was held liable for issuing a writ of attachment against property without either affidavit or bond. Here there was nothing to provoke inquiry, and not even a colorable appeal to the authority exercised. The ruling is explained by Walker, P-. J., in perfect accord with the instant case; for he says: “It is not to be supposed that the Legislature intended that the official should have the power to direct such a summary seizure of property without even a colorable attempt to require an observance of the precautions prescribed to prevent the issuance of the writ in cases in Avhich the Iuav did not authorize it, and to provide the prescribed means of indemnity for an abuse of the extraordinary process.”

Applying, now, the rule of liability above stated to the facts of the present case, we are of the opinion that the affidavit made before the defendant as a justice of the peace, though Avholly insufficient to charge any criminal offense, or to justify the issuance of the warrant of arrest, nevertheless Avas clearly an attempt to charge a threatened criminal trespass on affiant’s land. And, stating facts Avhich Avere elements of that offense, and of legal significance and value in its proof, a colorable case was presented Avhich fairly invoked the justice’s judgment as to their sufficiency for the purpose intended. The issuance of the Avarrant was therefore a judicial act, involving his inquiry and affirmative conclusion as to his power and authority to do so, for which he cannot be held liable, if he acted in good faith. It follows that the special plea stated a good defense to the complaint as framed, and the demurrers were properly overruled.

The question of good faith on the part of the defendant is not directly presented here by the pleadings; but we deem it necessary to any clear apprehension of the rule of nonliability to state, also, its essential limitations. And in this connection it' is to be noted that, since the law will always prima facie impute good faith to judicial action, the burden is upon the plaintiff, in a case like this, to both allege and prove the want of it.

Dowdell, C. J., and Simpson, Anderson, and Sayre, JJ., concur. McClellan, J., concurs in the conclusion.