Tompkins v. Sands

8 Wend. 462

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Savage, Ch. J.

The question presented in this case is whether a justice, who wilfully and maliciously refuses to approve the surety in an appeal bond, and thereby prevents a defendant from appealing his cause, is liable to an action therefor. The plaintiff in error does not impugn the doctrine of judicial irresponsibility, but relies on the point that the act complained of was not a judicial, but a ministerial act.

It may sometimes be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds, and which are clearly distinguishable. He issues process in the first instance, and in doing so, he acts ministerially—his judgment is hot at all exercised-When the parties appear before him, and the cause is heard, he renders judgment; he then acts judicially. After judgment, he issues execution; he then again acts ministerially. The justice is both judge and clerk. In Yates v. Lansing, 5 Johns. R. 282, it was held that an action would not lie against the chancellor for imprisoning one of the officers of his court for malpractice and contempt. Chief Justice Kent, in delivering the opinion of the court, states that the allowance of a Writ of habeas corpus in vacation is a ministerial act. The statute imposes a penalty on the chancellor and judges for refusing to allow the writ when properly applied for in vacation. Such application may be denied or granted at their discretion in term, because there they act judicially ; but when they act ministerially, they are liable to the penalty for a refusal—in this instance, it would seem that the same act may at one time be judicial and at another ministerial. In the case of Hammond v. Howell 2 Mod. 218, the court of oyer and terminer' improperly imprisoned a juror, but the court of common pleas held that no action lay against the court of oyer and terminer, for it was a judicial act; that court had power to punish a juror for misconduct, but they were mistaken in deciding what was misconduct or misdemeanor. The recording of force under the statute is a judicial act. 8 Johns. R. 50. A justice of the peace is liable in an action to the injured party, where he acts without jurisdiction. Case v. Shepherd, 2 Johns. Cas. 27. Adkins v. Brewer, 3 Cowen, 206. A justice acts ministerially in issuing executions, and if in doing so, he acts irregularly and officiously, he is liable; though if he had committed the irregularity as the agent of. the party, and was acting within his jurisdiction, he would be excused. Percival v. Jones, 2 Johns. Cas. 49. Taylor v. Trask, 7 Cowen, 249.

There may be cases, I apprehend, when magistrates or others are entrusted with a discretion, where it would be difficult to say that they acted either judicially or ministerially. Such are the acts of the commissioners of excise in the several cities and towns in granting or refusing licences. Such 'also are the acts of inspectors of elections; and in both these cases there have been decisions declaring the liability of such officers in case of a wilful, corrupt and malicious exercise of their authority; but if they have acted honestly, though erroneously, no action lies. In the case of Rex v. Young & Pitts, 1 Burr. 556, a motion was made for an information against two justices of the peace for arbitrarily, obstinately and unreasonably refusing to grant a licence to one H. D. to keep an inn at Eversley. In the several discussions upon the motion, Lord Mansfield stated that though this was a matter left to the discretion of the justices, yet if their conduct appeared to be partial, oppressive, corrupt or arbitrary, they might be called, upon to shew the reasons which guided their discretion. “ Discretion,” he said, “ does mean, and can mean nothing else, but exercising the best of their judgment upon the occasion that calls for it; yet if this discretion be wilfully abused, it is criminal, and ought to be under the control of this court.” And again : “ That this court had no power or claim to review the reasons of the justices of the peace upon which they form their judgments in granting licences, by way of appeal from their judgments, or overruling the discretion entrusted to them; but if it clearly appears that the justices have been partially, maliciously or corruptly influenced in the exercise of this discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment or information; or even possibly by action, if the malice be very gross and injurious.”

That a justice will not be punished for an error of judgment, is again reiterated in Rex v. Cox. 2 Burr. 785. In Harman v. Tappenden and others, 1 East 556, it was held that without malice no action would lie against the members of a corporation who had excluded a fellow corporator from the benefits to which he was entitled, the act having been done erroneously, but not maliciously. So for refusing the vote of a person entitled to vote at an election, no action lies unless malice be shewn, either express of implied. 2 Ld. Raym. 938,958. 1 East, 562. 11 Johns. R, 114, 120. In Ashley v. White, it was agreed by three judges that the returning officers were not judges, but ministerial officers. In Jenkins v. Waldron, Mr. Justice Spencer admits that an action lies, if the vote be refused fraudulently or maliciously. He considers the inspectors of elections as officers called upon to exercise their deliberative judgments, and says it would be opposed to all principle to allow them to be answerable for a mere mistake in law, when their motives are pure and untainted with fraud or malice.

In Smith v. Trawl, 1 Root, 165, an action was held to lie against a justice of the peace in Connnecticut for granting a writ of replevin without requiring security. The plaintiff recovered in the county court, and the judgment was reversed in the superior court, on the ground that the law had made the justice the judge of the sufficiency of the security. The judgment of the superior court was reversed in the supreme court of errors, on the ground that the p arty’s bond was no security, and the act of the justice was compared to a sheriff letting a man to bail on his own bond. But in Phelps v. Still, 1 Day, 315, it was held that an action will not lie against a judge of probate for neglecting to take security from the guardian of a ninfant, although the infant had personal estate, and the guardian was a bankrupt. The court place his indemnity from damages upon his judicial character, and that the omission on his part was by mistake.

On a review of these cases, the principle must be considered settled, that for a judicial act no action lies, but for an injury arising from the misfeasance or non-feasance of a ministerial officer, the party has redress in an action on the case; but in all cases where the defendant is sued for an act in which he was bound to exercise his discretion, the action will not be sustained unless it appear that the act complained of was done wilfully and maliciously. The strongest charge in the declaration in this case is, that the defendant, acting as justice of the peace, has unjustly and oppressively prevented the plaintiff from appealing, and thereby reversing a judgment rendered by him, &c. I incline to think this equal to a charge of corruption.

I am of opinion also thát a justice, in approving or refusing to approve an appeal bond, does not act judicially; he does indeed exercise his discretion, but it is the same discretion exercised by every ministerial officer who takes bail. The taking sécm-ity in such cases is rather a ministerial than a judicial act, and if he has acted corruptly an action lies. I am therefore of opinion that the judgment of the court of common pleas ought to be reversed, and that a venire de novo should be issued by Delaware common pleas; costs to abide the event.