Kelly v. Bemis

70 Mass. 83

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1855
• Status: Published

Opinion

Bigelow, J.

The defendant in the present case seeks to jus-

tify the tort charged in the declaration by proof that he acted as a magistrate in the performance of certain duties under St. 1852, c. 322, § 14. But that section of the statute has been adjudged to be unconstitutional and void. Fisher v. McGirr, 1 Gray, 1. It therefore conferred no authority or jurisdiction upon magistrates. Under a government of limited and defined powers, where, by the provisions of the organic law, the rights and duties of the several departments of the government are carefully distributed and restricted, if any one of them exceeds the limits of its constitutional power, it acts wholly without authority itself, and can confer no authority upon others. The defendant could derive no power or jurisdiction from a void statute. He therefore acted without any jurisdiction; and, upon familiar and well settled principles, is liable in this action. Fisher v. McGirr, 1 Gray, 45. Piper v. Pearson, 2 Gray, 120. Clark v. May, 2 Gray, 410.

Exceptions overruled