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[*416] *In some States it has been deemed wise to make the

voter himself the conclusive judge of his right to vote. If his right is questioned, an oath which embraces the several requisites of qualification is tendered to him, and if he will take this, and thus give evidence that he answers all the conditions, he must be registered for voting-if registration is required—and his ballot must be received when offered. This legislation assumes that the course marked out by it is safer and less liable to abuses than leaving the decision to any tribunal. The oath is taken with the penalties of perjury in view, and these penalties are thought to be a better protection to the privilege of suffrage than any conclusion of judges or inspectors, whose means of information must often be defective, and who may not only act under honest mistakes, but also, when called upon to act in the excitement of an election which calls up and intensifies the party passions, be influenced by partisan or other improper feelings or prejudices. Whenever the law thus makes a man the final judge of his own right, the election officers have only a ministerial duty to perform; they must receive the vote if the oath is taken, and they are resposible as in other cases of ministerial duties if they refuse.'

Jurisdiction Essential. Every judicial officer, whether the grade be high or low, must take care, before acting, to inform himself whether the circumstances justify his exercise of the

judicial function. A judge is not such at all times and [*417] for all * purposes : when he acts he must be clothed with

jurisdiction; and acting without this, he is but the individual falsely assuming an authority he does not possess. The officer is judge in the cases in which the law has empowered him to act, and in respect to persons lawfully brought before him; but he is not judge when he assumes to decide cases of a class which the law withholds from his cognizance, or cases between persons who are not, either actually or constructively, before him for the purpose. Neither is he exercising the judicial function

that the omission was willful and malicious. Griffin v. Rising, 11 Met. 839.

See Spragins r. Houghton, 3 Ill. 377; State o. Robb, 17 Ind. 536; Gil.

lespie o. Palmer, 20 Wis. 544; People v. Pease, 30 Barb. 588; Chrisman o. Bruce, 1 Duv. 63; People o. Gordon, 5 Cal. 235.


when, being empowered to enter one judgment or make one order, he enters or makes one wholly different in nature. When he does this he steps over the boundary of his judicial authority, and is as much out of the protection of the law in respect to the particular act as if he held no office at all. This is a general rule.'

Jurisdiction in a judge may be defined as the authority of law to act officially in the matter then in hand. One set of facts under the law confers it in the case of the assessor of taxes, and another set of facts confers it in the case of the commissioner of highways or the sewer commissioner. Most of the officers who exercise an inferior authority have no jurisdiction at all until certain preliminary action has been taken which is particularly pointed out by statute; and neither in their case nor in the case of the inferior courts will any intendment of law be made in favor of jurisdiction when their action is called in question, but they must show by their written records that the circumstances existed which authorized them to act.' In favor of the action of the superior courts, however, to which vast interests and general powers are confided, it will be intended that they have acted with full jurisdiction, and that they have assumed to do nothing that the law does not sanction.'

*Case of the Marshalsea, 10 Co. 68; Groepvelt o. Burwell, 1 Ld. Raym. 454; Yates o. Lansing. 5 Johns. 282; Phelps o. Sill, 1 Day, 315; Palmer o. Carroll, 24 N. H. 314; Rowe o. Addi. son, 34 N. H. 306; Craig o. Burnett, 32 Ala. 728; Clarke o. May, 2 Gray, 410; Piper v. Pearson, 2 Gray, 120; State o. Nerland, 7 8. C. (N. 8.) 241.

* The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so, while nothing shall be intend. ed to be within the jurisdiction of an inferior court but that which is specially so alleged. 1 Saund. 74, And, see The Brewers' Case, 1 Roll. Rep. 134; Parsons o. Loyd, 3 Wils. 341; Estopinal o. Peyroux, 37 La. Ann. 477.

1 "The chief distinction between judgments pronounced by courts of record and those pronounced by

courts not of record, arises from the presumption of law that the former courts act within their jurisdiction, while, so far as jurisdiction is con. cerned, no presumption is indulged in favor of the latter. Whoever relies upon the judgment of a court of special jurisdiction must establish every fact necessary to confer jurisdiction upon the court. The proceedings of all courts not of record must be shown to be within the powers granted to them by law, or such proceedings will be entirely disregarded. The acts of these two classes of courts have been properly likened to the acts of general agents and the acts of special agents. The former are to be regarded as valid in all cases to the extent that all persons relying upon them need show nothing beyond the general grant of authority; while the latter, to be binding, must first be

[*418] *When it is said that the jurisdiction of an inferior

court must appear, what is meant is, that it must appear by the record itself; it cannot be supplied by intendment, or rest in the mere knowledge of witnesses to be brought out when the authority is questioned. Therefore, a warrant of commitment which does not in its recitals show authority in the magistrate to issue it cannot be upheld.' Neither can a warrant issued by a magistrate for a seizure of goods, in which the same infirmity is

manifest.' Nor a justice's commitment of a witness for [*419] contempt, issued after *the case in which he was called

had been disposed of. But where the facts alleged before a magistrate are sufficient to give him jurisdiction, and he pro

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shown to fall within the limits of a the recital of a justice in his docket special or restricted grant. Clark 0. that the parties appeared and went to Holmes, 1 Doug. (Mich.) 390; Sears o. trial before bim. Facey o. Fuller, 13 Terry, 26 Conn. 273; Shufeldt o. Buck- Mich. 527. See Gray o. Cookson, 16 ley, 45 Ill. 223; Stanton o. Styles, 5 East, 13. Not even on a charge that Exch. 578; Gray o. McNeal, 12 Geo. the record was made up falsely aod 424; Harrington v. People, 6 Barb. corruptly can the record of the justico 607; Taylor o. Bruscup, 27 Md. 219; be impeached in a suit against him. 0. & M. R. R. Co. v. Shultz, 31 Ind. Kelly v. Dresser, 11 Allen, 31. 150; Thompson o. Multnomah Co., 2 Wickes 0. Clutterbuck, 2 Bing. Or. 34. There is a further distinction 483. See Hill 0. Pride, 4 Call, 107; in regard to the proceedings of these nor if commitment is for failure of two classes of courts, arising from the officer to obey an order if there is no fact that courts of special jurisdiction judgment on which to base it. Ladhave no record, and therefore no un. pher o. Dewell, 56 Ia. 153. impeachable memorial of their trans- 2 Newman o. Earl of Hardwicke, 8 actions. Any statement in relation to A. & E. 123; McClure o. Hill, 36 Ark. jurisdiction found among the papers, 263. So his mistaken belief as to his minutes, or other written matter kept jurisdiction in case of criminal proby these courts, seems to be but prima cess will not protect.

Truesdell o. facie evidence; in opposition to which Combs, 33 Ohio St. 186. it may be shown by any satisfactory : Clark 0. May, 2 Gray, 410. Ia means of proof that the authority of Louisiana it has been decided that a the court did not extend over the justice empowered to issue a warrant matter in controversy, nor over the on proofs being made, though he isparties to the suit." Freeman on sues one without proofs, is not liable; Judgments, $ 517, citing many cases. this being only an error in judgment.

It has been held, however, that this Maguire v. Hughes, 13 La. Ann. 281. rule does not go so far as to permit But quere of this. In Ackerley o. Parthe contradiction, in actions against a kinson, 3 M. & S. 411, it is held that justice, of the returns of officers of if a judicial officer has jurisdiction the service of process by them by of the subject-matter, he is not liable means of which suits were instituted; for proceeding upon a citation, though Lightsey o. Harris, 20 Ala. 409; nor the citation is void.

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ceeds upon them to judgment and execution, his right to exemption from liability cannot be affected by the truth or falsity of those facts, or the sufficiency or insufficiency of the evidence adduced for the purpose of establishing them.'

In the case of some officers the jurisdiction does not and cannot depend upon record. Thus, the jurisdiction of an assessor to impose a personal tax may depend upon the fact of residence, of which no record exists; and, therefore, the fact must always rest in the knowledge of witnesses. But where an officer is to proceed upon evidence in writing, and the statute points out what this evidence shall be, it intends that it shall be found of record in the proper office, and not that important public matters shall be left to uncertain parol testimony."

It is universally conceded that when inferior courts or judicial officers act without jurisdiction the law can give them no protection whatever. The rule has been held to be otherwise, however, in the case of judges of the superior courts where the error las consisted in exceeding their authority. The particnlar case was one in which the judge, sitting in one court, ordered the name of an attorney to be stricken from the rolls for a contempt of authority committed in another court, of which the judge was also a member. It was held by the Federal Supreme Court that he was not responsible in a civil action for this error.' Had it

· Cave o. Mountain, 1 M. & G. 257. Cardigan o. Paige, 6 N. H. 182, The same principle was applied in 191; Moser v. White, 29 Mich. 59, 60; the case of a court-martial, in Shoe- People o. Highway Comrs., 14 Mich. maker o. Nesbit, 2 Rawle, 201, assum

528. ing that the members acted bona fide. 3 Bradley o. Fisher, 13 Wall. 335. On the general subject, see notes to A plaintiff was convicted of an Creps o. Durden, 1 Smith Lead. Cas. offense before a United States Circuit 971. See, also, Olliet o. Bessey, 2 W. Court. The judge sentenced the Jones, 214; Houlden o. Smith, 14 Q. plaintiff to suffer fine and be impris. B. 841. Not liable for issuing an oned. After the payment of the fine attachment upon an affidavit sufficient he set aside the sentence and re-sen. on its face, but false as to a jurisdic- tenced the plaintiff to imprisonment. tional fact. Connelly 0. Woods, 31 The United States Supreme Court adKan. 359. Nor a search warrant un- judged the re-sentence to have been der an ordinance afterwards held in. without authority, and discharged valid. Henke o. McCord, 55 Ia. 378. the plaintiff. Thereupon, plaintiff See McCall 0. Coben, 16 S. C. 445. brought an action of false imprisonBut having jurisdiction to examine ment against the judge. The court and commit, he is liable if he assumes held that the judge had jurisdiction to try a criminal. Patzack 0. Von of the person and the subject matter. Gerichten, 10 Mo. App. 424.

To adjudge that a second sentence


been a justice of the peace who had committed a like errur, an

action would have been supported, however honest might [*420] have been his *motives, and however plain it might have

appeared that he was intending to keep within his powers.

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could be pronounced, says FOLGER, C. J., “Is a judicial act done as a judge, as a court, though the adjudi. cation was erroneous and the act based upon it was without authority and void. Where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other involved in the case; although upon the correctness of his determination in these particulars the validity of his judgment must depend. For such an act, a person acting as judge therein is not liable to civil or criminal action. The power to decide protects though the decision be erroneous." The court further holds, that while the Circuit Court in a sense is a court of limited and special jurisdiction, it is not an inferior court, and that the rule as to judges of superior courts here applied, “and that for those reasons the defendant in this case was protected by his judicial character from the action brought against him by the plaintiff. Lange v. Benedict, 73 N. Y. 12.

A like question has received full consideration from the Court of Ap. peals of New Jersey, and BEASLEY, C. J., states the conclusion of the court as follows: “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 bas cognizance, unless such case is by complaint or other proceed.

ing put at least colorably under his jurisdiction. Where the judge is called upon by the facts before him to decide whether his authority ex: tends 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 decision, 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 tbat 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 to be a reasonable one; it protects the judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that was 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, obvi. ously, result in a judgment affirming the decision of the circuit judge. There was a complaint, under oath, before this justice, presenting for his consideration & set of facts to which it became his duty to apply the law. The essential things there slated were, that the plaintiff, in com. bination with two other persons, • with force and arms,' entered upon certain lands, and with force and arms did unlawfully carry away about four hundred bundles of cornstalks, of the value,' &c., and were

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