[*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.'

The

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. 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 v. Houghton, 3 Ill. 377; State v. Robb, 17 Ind 536; Gil

lespie v. Palmer, 20 Wis. 544; People v. Pease, 30 Barb. 588; Chrisman . Bruce, 1 Duv. 63; People v. 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; Groenvelt v. Burwell, 1 Ld. Raym. 454; Yates v. Lansing, 5 Johns. 282; Phelps v. Sill, 1 Day, 315; Palmer v. Carroll, 24 N. H. 314; Rowe v. Addison, 34 N. H. 306; Craig v. Burnett, 32 Ala. 728; Clarke v. May, 2 Gray, 410; Piper v. Pearson, 2 Gray, 120; State v. Nerland, 7 S. 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 intended 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. Loyd, 8 Wils. 341; Estopinal v. Peyroux, 37 La. Ann. 477.

"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 concerned, 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 him jurisdiction, and he pro

a magistrate are sufficient to give

shown to fall within the limits of a special or restricted grant. Clark v. Holmes, 1 Doug. (Mich.) 390; Sears v. Terry, 26 Conn. 273; Shufeldt v. Buckley, 45 Ill. 223; Stanton v. Styles, 5 Exch. 578; Gray v. McNeal, 12 Geo. 424; Harrington v. People, 6 Barb. 607; Taylor v. Bruscup, 27 Md. 219; O. & M. R. R. Co. v. Shultz, 31 Ind. 150; Thompson v. Multnomah Co., 2 Or. 34. There is a further distinction in regard to the proceedings of these two classes of courts, arising from the fact that courts of special jurisdiction have no record, and therefore no unimpeachable memorial of their transactions. Any statement in relation to jurisdiction found among the papers, minutes, or other written matter kept by these courts, seems to be but prima facie evidence; in opposition to which it may be shown by any satisfactory means of proof that the authority of the court did not extend over the matter in controversy, nor over the parties to the suit." Freeman on Judgments, § 517, citing many cases.

It has been held, however, that this rule does not go so far as to permit the contradiction, in actions against a justice, of the returns of officers of the service of process by them by means of which suits were instituted; Lightsey v. Harris, 20 Ala. 409; nor

the recital of a justice in his docket that the parties appeared and went to trial before him. Facey v. Fuller, 13 Mich. 527. See Gray v. Cookson, 16 East, 13. Not even on a charge that the record was made up falsely and corruptly can the record of the justice be impeached in a suit against him. Kelly v. Dresser, 11 Allen, 31.

1

Wickes . Clutterbuck, 2 Bing.

483. See Hill v. Pride, 4 Call, 107; nor if commitment is for failure of officer to obey an order if there is no judgment on which to base it. Lanpher v. Dewell, 56 Ia. 153.

2 Newman v. Earl of Hardwicke, 8 A. & E. 123; McClure v. Hill, 36 Ark. 268. So his mistaken belief as to his jurisdiction in case of criminal process will not protect. Truesdell . Combs, 33 Ohio St. 186.

Clark v. May, 2 Gray, 410. In Louisiana it has been decided that s justice empowered to issue a warrant on proofs being made, though he issues one without proofs, is not liable; this being only an error in judgment. Maguire v. Hughes, 13 La. Ann. 281. But quere of this. In Ackerley v. Parkinson, 3 M. & S. 411, it is held that if a judicial officer has jurisdiction of the subject-matter, he is not liable for proceeding upon a citation, though the citation is void.

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.*

2 Cardigan v. Paige, 6 N. H. 182, 191; Moser v. White, 29 Mich. 59, 60; People v. Highway Comrs., 14 Mich.

528.

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 has consisted in exceeding their authority. The particular 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 v. Mountain, 1 M. & G. 257. The same principle was applied in the case of a court-martial, in Shoemaker v. Nesbit, 2 Rawle, 201, assuming that the members acted bona fide. On the general subject, see notes to Creps v. Durden, 1 Smith Lead. Cas. 971. See, also, Olliet v. Bessey, 2 W. Jones, 214; Houlden v. Smith, 14 Q. B. 841. Not liable for issuing an attachment upon an affidavit sufficient on its face, but false as to a jurisdictional fact. Connelly v. Woods, 31 Kan. 359. Nor a search warrant under an ordinance afterwards held invalid. Henke v. McCord, 55 Ia. 378. See McCall. Cohen, 16 S. C. 445. But having jurisdiction to examine and commit, he is liable if he assumes to try a criminal. Patzack v. Von Gerichten, 10 Mo. App. 424.

3 Bradley v. Fisher, 13 Wall. 335. A plaintiff was convicted of an offense before a United States Circuit Court. The judge sentenced the plaintiff to suffer fine and be impris oned. After the payment of the fine he set aside the sentence and re-sentenced the plaintiff to imprisonment. The United States Supreme Court adjudged the re-sentence to have been without authority, and discharged the plaintiff. Thereupon, plaintiff brought an action of false imprisonment against the judge. The court held that the judge had jurisdiction of the person and the subject matter. To adjudge that a second sentence

been a justice of the peace who had committed a like error, 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