Kendall v. Stokes. 3 H.

That the above instruction should be mistaken by any one as a demurrer to evidence, is, to me, very extraordinary.

A demurrer to evidence withdraws it from the jury, but this instruction calls upon the court to say whether "the evidence was competent to be considered by the jury." The instruction is not in form or effect like a demurrer to evidence. It was nothing more nor less than an objection to the admissibility of the evidence.

The fifth instruction prayed is, as to the capacity in which the plaintiffs sue, and which I have already considered.

I now come to the instructions prayed by the defendant below after the close of his evidence.

The first one, being substantially of the character of the fifth, above stated, will not be examined.

The second instruction was, "if the jury find, from the said evidence, that the defendant, as postmaster-general, acted, in the premises from a conviction that he had the lawful power and authority as such postmaster-general, to set aside the extra allowances, as claimed under the allowance of his predecessor, and to suspend and recharge the same, and from a conviction that it was his official duty to do so; and if plaintiffs suffered no oppression, injury, or damage, from such official act of the defendant, but the inconveniences necessarily resulting from such official act, then he is not liable to plaintiffs in this action for having so set aside, suspended, and recharged such extra allowances."

The principle embodied in this instruction is this: if an executive officer do an act in good faith, and, as he believes, within his power, he is not responsible for an injury done to an individual.

It will require but little reflection to show that the proposition, to the extent here stated, is unsustainable. The principle is made to depend, not upon the character of the act or its consequences, but on the intent with which it was done. Now, there are many duties of an executive officer which are purely ministerial, and others which are discharged under prescribed limitations. It is inconsistent with the nature of our institutions, that an irresponsible power should be exercised by any public agent. Every officer, from the highest to the lowest, in our government, is amenable to the laws for an injury done to individuals. An act, which the law sanctions, cannot be considered as injurious to any one. And where a discretion may be exercised, if it be exercised in good faith, the officer is not responsible for an error of judgment. But this, of necessity, is limited to matters which come within his jurisdiction. He can claim no immunity beyond this. If he could, he might act without any other restraint than his own discretion; and this would be to exercise an unmitigated and irresponsible despotism.

Kendall v. Stokes. 3 H.

If a member of this court should imprison a citizen, for causes over which the law gave him no jurisdiction, he would be responsible for damages in an action at law. And it is supposed that no higher immunity can be claimed by an executive officer. It is a fundamental principle in our government, that no individual, whether in office or out of office, is above the law. In this our safety consists.

Of all the powers exercised by the departments of this government, those of the executive are the most extensive and the most summary. They have not the forms and the deliberations of a judicial procedure. Hence it is of the utmost importance that the executive power should be defined and guarded by law. From the nature of these duties, an enlarged discretion is indispensable; and with the exercise of this discretion no other power can interpose, and no legal responsibility results from its rightful exercise. But this is not an unlimited discretion. If its boundaries be not specifically defined by statutory enactments, yet they are found in the thing done, and in the well-established principles of private right. The courts are often called on to exercise their discretion, but it must be a legal discretion. The same rule applies, where individual rights are involved, to every executive officer.

A postmaster-general, by the terms of every mail contract, on the happening of certain failures by the contractor, may forfeit it. But if he shall arbitrarily annul the contract, when, by the terms of it, he had no power to do so, he is unquestionably responsible to the party injured. And, in such a case, the plea that he acted in good faith and with a desire to discharge his duty, would not avail him. He is presumed to be acquainted with his duties, and the powers he may exercise. A contrary presumption would suppose him to be unqualified to discharge the duties of his office. It therefore follows, when a public officer does an act to the injury of an individual, which did not come within the exercise of his discretion, and was clearly not within the powers with which he is invested by law, he may be held legally responsible.

In the first count of the declaration, the plaintiffs charge that the defendant not only refused to pay to them the sum of $122,000, which, under their contracts, they had earned, and which had been credited to them in their accounts; but that he caused that sum to be recharged to them, which represented them, on the books of the department, as defaulters, &c.

Now, had he power to do this? As this point has been expressly adjudged by this court, I need refer to no other authority.

In the case of the United States v. Bank of Metropolis, 15 Pet. 400, the court say: "The third instruction asked the court to say,

Kendall v. Stokes. 3 H.

among other things, if the credits given by Mr. Barry were for extra allowances, which the postmaster-general was not legally authorized to allow, then it was the duty of the present postmaster-general to disallow such items of credit;" and to this instruction this court answer: "The successor of Mr. Barry had the same power, and no more, than his predecessor, and the power of the former did not extend to the recall of credits or allowances made by Mr. Barry, if he acted within the scope of official authority given by law to the head of the department. This right in an incumbent of reviewing a predecessor's decisions, extends to mistakes in matters of fact arising from errors of calculation, and in cases of rejected claims in which material testimony is afterwards discovered and produced. But if a credit has been given or an allowance made, as these were, by the head of a department, and it is alleged to be an illegal allowance, the judicial tribunals of the country must be resorted to, to construe the law under which the allowance was made, and to settle the rights between the United States and the party to whom the credit was given. It is no longer a case between the correctness of one officer's judgment and that of his successor."

The point here ruled is, in every respect, the point under consideration. And the decision is clear and unequivocal against the power of the postmaster-general to supervise the allowances and contracts of his predecessor. And more especially must this be the case, where the allowances have not only been made for services rendered, but credited to the party on the books of the department.

On the ground of fraud or mistake, a postmaster-general may suspend or annul the acts of his predecessor. But in such a case the ground should be set up as matter of justification. No such defence has been made in the present case.

Here is an act done by the defendant, as postmaster-general, which this court say he had no power to do. And as a consequence of that act, great injury has been done to the plaintiffs, as alleged in the declaration, shown by the evidence and sanctioned by the verdict of the jury. And here the question arises whether the act so complained of subjects the defendant to an action at law. My brethren think it does not; I have come to a different conclusion.

In stating the grounds of my opinion, I acquit the postmastergeneral of all improper intention. And I not only do this, but I am willing to admit, that the circumstances under which he acted were such as to require from him great vigilance and firmness. He acted, too, under the sanction of the President, and in accordance with the opinion of the attorney-general. These precautionary measures go to explain his action, and show that whatever damages might have

Kendall v. Stokes. 3 H.

been incurred by the plaintiffs and recovered by them, the defendant should be indemnified by the government. He should no more be subjected to loss in this respect than a collector of the customs who, under the instructions of the treasury department, collects an illegal duty upon goods imported, which subjects him to a judgment for damages.

But if the right of action exist, these circumstances cannot destroy it. They create a clear case of indemnity by the government, but they do not lessen nor excuse the injurious consequences to the plaintiffs.

There are three grounds on which a public officer may be held responsible to an injured party.

1. Where he refuses to do a ministerial act, over which he can exercise no discretion.

2. Where he does an act which is clearly not within his jurisdiction.

3. Where he acts wilfully, maliciously, and unjustly, in a case within his jurisdiction.

The first position is sustained by this court in the case of Kendall v. The United States, 12 Pet. 613. Speaking of the act required by the law, to be done by the postmaster-general, the court say: "It is a precise definite act, purely ministerial; and about which the postmaster general had no discretion whatever." And, again, in 612, they say: "The plaintiff's right to the full amount of the credit, according to the report of the solicitor, having been ascertained and fixed by law, the enforcement of that right falls properly within judicial cognizance." In page 614, they say: "It is seldom that a private action at law will afford an adequate remedy," where the damages are large. The act required to be done was, that the postmaster general should cause a credit to be entered on the books of the department in favor of the plaintiffs below, for a certain sum. "His refusal to do this subjected him to an action." This decision, then, sustains the position that a public officer is liable to an action for damages sustained for refusing or neglecting to do a mere ministerial act, over which he could exercise no discretion.

In the case of Ferguson v. Earl of Kinnoull, 9 Clark & Finnelly's Rep. 279, a decision in the house of lords, in 1842, the lord-chancellor said: "When a person has an important public duty to perform, he is bound to perform that duty; and if he neglects or refuses so to do, and an individual in consequence sustains injury, that lays the foundation for an action to recover damages by way of compensation for the injury he has so sustained.” And he cites Sutton v. Johnston, 1 Term Rep. 493. His lordship further remarks:

Kendall v. Stokes. 3 H.

"A party had applied to a justice of the peace to take his examination under the statute of Elizabeth, the statute of hue and cry; the justice had refused to do this, and the party had in consequence sustained injury, because he was deprived of his right of bringing a suit against the hundred in consequence of that neglect. It was held, upon the principle I have stated, that he was entitled to recover damages against the justice for the neglect of his public duty; he having in consequence sustained a personal injury." Green v. Bucklechurches, 1 Leon. 323, c. 456. He states another case, of Stirling v. Turner. Stirling was a candidate for the office of bridgemaster; the mayor refused to take a poll, in consequence of which he brought an action against him, and it was held that that action might be sustained to recover damage for the injury. Upon what principle? That it was the duty of the lord mayor to take the poll; that he neglected that duty; that the party in consequence sustained injury, and it was, therefore, held that the action might be maintained."

In his opinion, Lord Brougham says, page 289: "Courts of justice, that is, the superior courts, courts of general jurisdiction, are not answerable, either as bodies, or by their individual members, for acts done within the limits of their jurisdiction. Even inferior courts, provided the law has clothed them with judicial functions, are not answerable for errors of judgment; and where they may not act as judges, but only have a discretion confided to them, an erroneous exercise of that discretion, however plain the miscarriage may be, and however injurious its consequences, they shall not answer for. This follows from the very nature of the thing; it is implied in the nature of judicial authority. But where the law neither confers judicial power, nor any discretion at all, but requires certain things to be done, everybody, whatever be its name, and whatever other functions of a judicial or of a discretionary nature it may have, is bound to obey; and, with the exception of the legislature and its branches, everybody is liable for the consequences of disobedience."

Lord Cottenham said: "I feel much satisfaction at finding that this case has been so deeply considered and so fully discussed by the noble and learned lords who have preceded me. I concur in the opinions which they have stated."

Lord Campbell said: "Where there is a ministerial act to be done by persons who, on other occasions, act judicially, the refusal to do the ministerial act is equally actionable as if no judicial functions were, on any occasion, intrusted to them. There seems no reason why the refusal to do a ministerial act by a person who has certain judicial functions, should not subject him to an action, in the same