RAND, J.
This is an action against five defendants for malicious prosecution in instituting criminal proceedings against the plaintiff, causing him to be arrested, his home to be searched, and property in his possession to be taken from him, maliciously and without probable cause, upon a charge which, it is alleged, the defendants at the time knew to be false.
The plaintiff is a reputable attorney at law, regularly admitted to practice, and resided with his wife at his home at Athena, where he had in his possession a quantity of intoxicating liquor which the complaint alleges he had acquired prior to the enactment of the prohibition laws and, if thus acquired, the possession thereof was lawful under § 2224—4, Or. Laws. In effect the complaint charges that the defendants, knowing that the plaintiff’s possession of such liquor was lawful, in order to injure and disgrace the plaintiff, entered into an unlawful agreement and conspiracy to charge him with being unlawfully in pos[644]*644session of said liquor, and with maintaining a nuisance at his home by keeping the liquor there for the purpose of barter and sale. The complaint further alleges, in substance, that the defendants falsely, maliciously and without probable cause, and knowing that the charge was false, filed a criminal information in the Justice’s Court and caused the plaintiff to be arrested, his home to be searched, the liquor lawfully his possession to be taken, and a notice, stating that proceedings to confiscate the same had been instituted, to be posted and publicly displayed on his house, and attempted to suborn perjury against him upon the trial; that on the trial of such charge in the Justice’s Court, the plaintiff was found to be not guilty, and that an appeal was taken by the defendants to the Circuit Court for Umatilla County, where, upon a trial had in that court, the plaintiff was again found'to be not guilty and was discharged; that the action has been finally terminated in favor of the plaintiff, and that said proceedings were instituted by the defendants maliciously and without probable cause and with full knowledge upon the part of the defendants that the charge was wholly false.
The respondent herein, R. I, Keator, is the district attorney for Umatilla County. The Circuit Court sustained his separate demurrer to the complaint and, as to him, dismissed the action on the ground that the complaint did not state facts sufficient to constitute a catase of action against him. Although there was no allegation in the complaint that the defendant Keator, at the time of the commission of the acts complained of, was district attorney for Umatilla County, yet the court, taking judicial notice of that fact, held that he was not accountable to the plaintiff in an action for damages for acts done by him in his [645]*645official capacity, and upon that ground sustained the demurrer as to him and overruled a demurrer upon the same ground as to the other defendants.
While the Code, Sections 728, 729, Or. Laws, provides that certain facts shall be judicially noticed, and that evidence of those facts need not be produced, and while it has been said that “Where the law presumes a fact, the same need not be stated in the pleading. Thus matters of which the court takes judicial notice need not be alleg-ed” (1 Estee’s Pleadings (4 ed.), § 188), we doubt very much whether a court is authorized to construe a complaint as if it contained an allegation of an essential and material fact which has not been pleaded, although the fact is one which, on trial, the court might take judicial notice of and determine the sufficiency of such complaint upon a consideration of other facts than those alleged. The only case cited by Mr. Estee in support of his statement, that matters of which the court takes judicial notice need not be alleged, is the case of Goelet v. Cowdrey, 1 Duer (N. Y.), 132, 139, and in that case the question before the court was whether express reference to the statute by its title, or otherwise, was necessary in pleading the statute of frauds, and it was held that it was sufficient to set forth the facts which render the provisions of the statute applicable. Other cases in illustration of the rule stated by Mr. Estee are cited, but there is no analogy between those cases and the case made by the complaint here. Nor do the allegations of the complaint bring the case within the rule stated in Peterson v. Standard Oil Co., 55 Or. 511, 518 (106 Pac. 337, Ann. Cas. 1912A, 625), where it was held that:
“ * * Whatever quality in a substance is taken judicial notice of is, in effect, pleaded when the sub[646]*646stance itself is mentioned, at least that such method of allegation, even if meager and defective, will be sufficient on general demurrer.”
Under these allegations, the acts charged against Keator could have been committed as well in his individual as in his official capacity, and for this reason, if for none other, the legal sufficiency of this complaint oug'ht not to have been determined by consideration of a fact not alleged or in any way referred to, even though it might be that upon the trial proof of the fact, if alleged, might be unnecessary because the court might be authorized to take judicial notice of it. But as the plaintiff, upon the argument, conceded that in the commission of the acts charged in the complaint the defendant Keator was acting in his official capacity, and consented to a consideration of the complaint for the purposes of the demurrer as if it contained an allegation to that effect, and we are of the opinion that the demurrer ought to have been overruled, even if such fact had been alleged, we shall, as did the Circuit Court, consider the complaint as if it actually contained a specific allegation of that fact.
In the performance of an official duty a district attorney is both a law officer and, in common with all attorneys, an officer of the court; but he is not a judicial officer, nor is he a part of the court. In investigating the facts and determining whether criminal proceedings shall be instituted he acts in a quasi-judicial capacity. “The same reasons of private interest and public policy which operate to render the judicial officer exempt from civil liability for his judicial acts within his jurisdiction apply equally as well to the quasi-judicial officer.” (Newell on Malicious Prosecution, § 68.)
[647]*647Judges of courts of limited and inferior jurisdiction are exempt from liability for tbeir judicial acts, while acting within their jurisdiction and not otherwise; while a judge of a court of superior or general jurisdiction is not liable to a civil action for his judicial acts, even where such acts are in excess of his jurisdiction and are alleged to have been done maliciously or corruptly. But a judge of a court of superior or general jurisdiction is liable for his judicial acts, if done corruptly or maliciously, where there is a clear absence of all jurisdiction over the subject matter and the want of jurisdiction is known to the judge: Bradley v. Fisher, 13 Wall. 335, 351 (20 L. Ed. 646, see, also, Rose’s U. S. Notes).
In Griffith v. Slinkard, 146 Ind. 117 (44 N. E. 1001), the court held that a prosecuting attorney is not liable in an action for malicious prosecution for participation by him in procuring an indictment maliciously and without probable cause. Based upon this decision the rule has been stated that:
Free access — add to your briefcase to read the full text and ask questions with AI
RAND, J.
This is an action against five defendants for malicious prosecution in instituting criminal proceedings against the plaintiff, causing him to be arrested, his home to be searched, and property in his possession to be taken from him, maliciously and without probable cause, upon a charge which, it is alleged, the defendants at the time knew to be false.
The plaintiff is a reputable attorney at law, regularly admitted to practice, and resided with his wife at his home at Athena, where he had in his possession a quantity of intoxicating liquor which the complaint alleges he had acquired prior to the enactment of the prohibition laws and, if thus acquired, the possession thereof was lawful under § 2224—4, Or. Laws. In effect the complaint charges that the defendants, knowing that the plaintiff’s possession of such liquor was lawful, in order to injure and disgrace the plaintiff, entered into an unlawful agreement and conspiracy to charge him with being unlawfully in pos[644]*644session of said liquor, and with maintaining a nuisance at his home by keeping the liquor there for the purpose of barter and sale. The complaint further alleges, in substance, that the defendants falsely, maliciously and without probable cause, and knowing that the charge was false, filed a criminal information in the Justice’s Court and caused the plaintiff to be arrested, his home to be searched, the liquor lawfully his possession to be taken, and a notice, stating that proceedings to confiscate the same had been instituted, to be posted and publicly displayed on his house, and attempted to suborn perjury against him upon the trial; that on the trial of such charge in the Justice’s Court, the plaintiff was found to be not guilty, and that an appeal was taken by the defendants to the Circuit Court for Umatilla County, where, upon a trial had in that court, the plaintiff was again found'to be not guilty and was discharged; that the action has been finally terminated in favor of the plaintiff, and that said proceedings were instituted by the defendants maliciously and without probable cause and with full knowledge upon the part of the defendants that the charge was wholly false.
The respondent herein, R. I, Keator, is the district attorney for Umatilla County. The Circuit Court sustained his separate demurrer to the complaint and, as to him, dismissed the action on the ground that the complaint did not state facts sufficient to constitute a catase of action against him. Although there was no allegation in the complaint that the defendant Keator, at the time of the commission of the acts complained of, was district attorney for Umatilla County, yet the court, taking judicial notice of that fact, held that he was not accountable to the plaintiff in an action for damages for acts done by him in his [645]*645official capacity, and upon that ground sustained the demurrer as to him and overruled a demurrer upon the same ground as to the other defendants.
While the Code, Sections 728, 729, Or. Laws, provides that certain facts shall be judicially noticed, and that evidence of those facts need not be produced, and while it has been said that “Where the law presumes a fact, the same need not be stated in the pleading. Thus matters of which the court takes judicial notice need not be alleg-ed” (1 Estee’s Pleadings (4 ed.), § 188), we doubt very much whether a court is authorized to construe a complaint as if it contained an allegation of an essential and material fact which has not been pleaded, although the fact is one which, on trial, the court might take judicial notice of and determine the sufficiency of such complaint upon a consideration of other facts than those alleged. The only case cited by Mr. Estee in support of his statement, that matters of which the court takes judicial notice need not be alleged, is the case of Goelet v. Cowdrey, 1 Duer (N. Y.), 132, 139, and in that case the question before the court was whether express reference to the statute by its title, or otherwise, was necessary in pleading the statute of frauds, and it was held that it was sufficient to set forth the facts which render the provisions of the statute applicable. Other cases in illustration of the rule stated by Mr. Estee are cited, but there is no analogy between those cases and the case made by the complaint here. Nor do the allegations of the complaint bring the case within the rule stated in Peterson v. Standard Oil Co., 55 Or. 511, 518 (106 Pac. 337, Ann. Cas. 1912A, 625), where it was held that:
“ * * Whatever quality in a substance is taken judicial notice of is, in effect, pleaded when the sub[646]*646stance itself is mentioned, at least that such method of allegation, even if meager and defective, will be sufficient on general demurrer.”
Under these allegations, the acts charged against Keator could have been committed as well in his individual as in his official capacity, and for this reason, if for none other, the legal sufficiency of this complaint oug'ht not to have been determined by consideration of a fact not alleged or in any way referred to, even though it might be that upon the trial proof of the fact, if alleged, might be unnecessary because the court might be authorized to take judicial notice of it. But as the plaintiff, upon the argument, conceded that in the commission of the acts charged in the complaint the defendant Keator was acting in his official capacity, and consented to a consideration of the complaint for the purposes of the demurrer as if it contained an allegation to that effect, and we are of the opinion that the demurrer ought to have been overruled, even if such fact had been alleged, we shall, as did the Circuit Court, consider the complaint as if it actually contained a specific allegation of that fact.
In the performance of an official duty a district attorney is both a law officer and, in common with all attorneys, an officer of the court; but he is not a judicial officer, nor is he a part of the court. In investigating the facts and determining whether criminal proceedings shall be instituted he acts in a quasi-judicial capacity. “The same reasons of private interest and public policy which operate to render the judicial officer exempt from civil liability for his judicial acts within his jurisdiction apply equally as well to the quasi-judicial officer.” (Newell on Malicious Prosecution, § 68.)
[647]*647Judges of courts of limited and inferior jurisdiction are exempt from liability for tbeir judicial acts, while acting within their jurisdiction and not otherwise; while a judge of a court of superior or general jurisdiction is not liable to a civil action for his judicial acts, even where such acts are in excess of his jurisdiction and are alleged to have been done maliciously or corruptly. But a judge of a court of superior or general jurisdiction is liable for his judicial acts, if done corruptly or maliciously, where there is a clear absence of all jurisdiction over the subject matter and the want of jurisdiction is known to the judge: Bradley v. Fisher, 13 Wall. 335, 351 (20 L. Ed. 646, see, also, Rose’s U. S. Notes).
In Griffith v. Slinkard, 146 Ind. 117 (44 N. E. 1001), the court held that a prosecuting attorney is not liable in an action for malicious prosecution for participation by him in procuring an indictment maliciously and without probable cause. Based upon this decision the rule has been stated that:
“A prosecuting attorney, being a judicial officer of the state, is not liable in damages for acts done in the course of his duty, although willful, malicious, or libelous.” 32 Cyc. 717; 18 C. J. 1318.
Following the rule announced in Griffith v. Slinkard, supra, it is held in Smith v. Parman, 101 Kan. 115 (165 Pac. 663, L. R. A. 1917F, 698), that a city attorney, while engaged in the prosecution of a person charged with the violation of an ordinance, is not liable in damages to the person injured, for instituting a prosecution under an ordinance, maliciously and without probable cause.
The case of Parker v. Huntington, 2 Gray (Mass.), 124, is relied upon as an authority sustaining the rule above stated, but an examination of the opinion in [648]*648that case will disclose that it does not announce any such doctrine. It happened in that case that one of the defendants in the action, which was an action for malicious prosecution, had acted in the capacity of district attorney in the prosecution of the plaintiff, but the right of the plaintiff to maintain the action was not denied upon that ground. His right to maintain the action was denied upon the sole ground that he had been convicted of the offense with which he had been charged, following which the judgment of conviction had been set aside and a nolle prosequi entered, and therefore he was not in a position to show “a sufficient and proper ending of the indictment against him, and a want of probable cause.” This ruling was based upon former decisions of that court, where it was held that an action for malicious prosecution by indictment, upon a showing that the prosecution had been determined by a nolle prosequi, could not be maintained. The only inference to be drawn from the decision is that if the plaintiff had been in position to show a proper termination of the criminal action the action could have been maintained, notwithstanding that the defendant had acted in the criminal prosecution as district attorney.
In Schneider v. Shepherd, 192 Mich. 82 (158 N. W. 182, L. R. A. 1916F, 399), the prosecuting officer, who, without any attempt to verify the facts, acted upon a report submitted by a private investigator employed by him, naming merely the street and number of the premises but not the owner, secured the search of a residence occupied by a reputable citizen for a long period of years and his arrest without warrant upon a charge of which he was innocent, was held liable for false imprisonment. The trial court in that case had submitted to the jury the question of whether [649]*649there was probable cause for making the arrest of plaintiff and procuring a search of Ms house. In affirming the judgment of the lower court against the district attorney, the court said:
“Before there can be probable cause which would warrant the arrest of a person, there must be at least some information connecting that person with the commission of the alleged offense. It conclusively appears that the defendant Shepherd at no time had any information in his possession, nor was he informed, that the plaintiff was in any way connected with or suspected of the commission of the crime for which the arrest was made. The only information that he had before him was the reports of the investigators, two made on February 12th and the others on March 2d, in which the investigators reported they had visited a place at 291 Brush Street, and concluded from what they saw that the house was used for immoral purposes. But the owner of the place was not specified in either report. It is conceded that these reports were unreliable, because it appears without question that 291 Brush Street had been the home of Mr. Schneider for more than thirty years. The defendant Shepherd testified that he had no evidence against Schneider, and he relied entirely on the reports of the investigators. The office of prosecuting attorney is one of the most important which the people are called upon to fill, and the person selected becomes by virtue of his duties the legal adviser of the law-enforcing officers of the county. Unquestionably the defendant was actuated by the best motives in attempting by the methods he adopted to secure a better enforcement of the law than had theretofore obtained. Nevertheless, because of his very position, responsibility rested upon his shoulders to see that the safety of the ordinary citizen from illegal arrest be secured.
“ * * The right of the citizen to freedom from illegal arrest, and the immunity of his home from unlawful search, should not hang upon as slender a [650]*650thread as is made out by the defendant’s efforts to show probable cause. We are of the opinion that the facts in this case conclusively show, as a matter of law, that there was a want of probable cause on the part of the defendant Shepherd in instigating the arrest of the plaintiff, * *
In Leong Yau v. Carden, 23 Hawaii, 362, 369, the court said:
“A public prosecuting officer, in determining whether certain purported facts which have been brought to his attention justify the accusation and prosecution of a person believed to have committed an offense, acts in a quasi-judicial capacity, and he is not to be held liable in damages for an honest mistake or error of judgment in instituting a criminal proceeding against such person. But if he prosecutes without probable cause and with malice he certainly is in no better position than the judge of a court— superior or inferior — who proceeds maliciously and without any jurisdiction, or the head of an executive department who acts maliciously and without color of authority. Public prosecuting officers are entitled to protection against claims growing out of the discharge of their duties done in good faith though with erroneous judgment, but private individuals are entitled to the protection of the law against any conduct of such officers which is at once reckless, malicious and damaging.”
In Sheffington v. Eylward, 97 Minn. 244 (105 N. W. 638, 114 Am. St. Rep. 711), an action for malicious prosecution, a judgment in favor of a party who had been prosecuted in a criminal action was given against the chairman of the board of town supervisors, whose official duty it was to prosecute violators of a statute relating to the obstruction of public highways. In sustaining the judgment, the court said:
“It is further urged on behalf of the defendant that, because it was his official duty to prosecute all [651]*651persons violating the provisions of the statute (Gr. S. 1894, § 1863) relating to the obstruction of public highways, he is not liable for a mistake of judgment, even if another has suffered by the mistake. If he acted upon probable cause, this would be true; otherwise not. The fact that he acted in his official capacity in making the complaint was, as the jury were instructed, a matter to be considered by them in determining the question of probable cause.”
In Carpenter v. Sibley, 153 Cal. 215 (94 Pac. 879, 126 Am. St. Rep. 77, 15 Ann. Cas. 484, 15 L. R. A. (N. S.) 1143), an action for malicious prosecution, an appeal was had from a judgment rendered against a district attorney, his assistant and others. The judgment was upheld by the Supreme Court of California as against all of the defendants. The opinion shows that the question of whether an action for malicious prosecution could be maintained against a prosecuting officer was neither raised nor discussed, but the judgment was affirmed notwithstanding that it had been given against a district attorney and his assistant.
Referring now to the laws of this state applicable to the duties of a district attorney: By Section 17 of Article VII of the Constitution, prosecuting attorneys are declared to be law officers of the state and of the counties within their respective districts, and they are required to perform such duties pertaining to the administration of law and general police as the legislative assembly may direct. The statute, Section 1016, Or. Laws, provides that the district attorney in each district shall be the public prosecutor therein, and by Section 1018 his duties are prescribed as follows :
“He shall institute proceedings before magistrates for the arrest of persons charged with or reasonably [652]*652suspected of public offenses, when he has information that any such offense has been committed, * * .”
Under this statute, when a district attorney has information that a crime has been committed within his district, the law imposes upon him the duty to institute proceedings for the arrest and conviction of any person charged with, or reasonably suspected of, having committed the offense. While acting in conformity to the directions of the statute and in the cases provided for by the statute, he is not liable to respond in damages to any person for any injury which may be caused by the performance of his official duty, even if done maliciously, wantonly or corruptly. In such case his motives are wholly immaterial. But to afford this immunity to a district attorney he must conform to the statute and act only in cases provided for by the statute. There must be an offense committed, or at least he must reasonably believe that one has been committed, before he is authorized to cause the arrest of anyone. Unless the district attorney has reason to believe, or has at least some ground for believing, that an offense has been committed within his district, itf is not within the line of his duty or the scope of his authority to cause the arrest of anyone. Under the allegations of this complaint the defendant Keator, knowing that the plaintiff had committed no offense and that his possession of the liquor was lawful under the statute, caused criminal proceedings to be instituted against the plaintiff and caused him to be arrested upon a charge for an offense which he, as district attorney, knew had not been committed. Such acts upon the part of the district attorney constituted an abuse of his office, an unwarranted usurpation of power, and were wholly unauthorized and illegal; for damages arising there[653]*653from he is liable therefor in a civil action. Clearly the district attorney can enjoy no higher immunity than that given to a judge of a court of superior or general jurisdiction when acting wholly without authority of law upon a subject matter over which he knows he has no jurisdiction.
As this is a government of limited and defined powers, a government of laws and not of men, the powers, authority and jurisdiction of an officer are limited and restricted to those conferred upon him by law. The statute, in terms, confers upon prosecuting attorneys the power, and makes it their duty, when informed that a public offense has been committed within their district, to institute proceedings for the arrest and trial of persons accused or reasonably suspected of having committed the offense. Of necessity it follows that an officer who, in conformity to law, performs an official duty imposed upon him by statute, cannot be held liable in a civil action for damages resulting therefrom, but when, in a case not provided for by statute, he performs, without lawful authority, an illegal act injurious to the rights of some other person, he is liable to the injured party for the damages resulting from the'unauthorized and illegal act.
As the statute defining the powers and prescribing the duties of district attorneys is for the protection of the public, it should be liberally construed to effectuate the purpose of its enactment, and wide latitude should be given to the exercise of discretion under it. But from this it does not follow that a district attorney is not to be held accountable in a civil action for damages at the suit of an injured party for maliciously causing the arrest of such party for a pretended offense, which, at the time of the arrest, he knew had not been committed at all; for in such case [654]*654the district attorney is not acting in the line of his duty or within the scope of his authority.
We are dealing here with the legal sufficiency of a complaint attacked by a demurrer. The demurrer admits the truth of the material facts pleaded, and these facts, as alleged, are sufficient to constitute a good cause of action against the defendant, whether in committing the acts charged he was acting in his official capacity or as a private individual. For these reasons the demurrer to the complaint must be overruled and it is so ordered.
Reversed and Remanded.
Burnett, J., not sitting.