*circumstances were such that no individual can be [*689] held responsible, as may be the case where the injury was done in time of war, in the exercise of orders from a superior authority, which the agent was powerless to resist, the wrong may be the same; but the remedy is by an appeal to the justice of the government, or to such court of claims or auditing board as the government may empower to hear and allow claims against itself. There can be no other under such circumstances.

It has also been stated that an exercise of legislative authority can afford no ground for legal complaint. A strong illustration of this is afforded by the grant by the government of a new franchise which has the effect to destroy or render useless a prior grant of a like franchise. If the first grant was not in terms exclusive, the second is perfectly lawful, and no inquiry into the motives for making it will be suffered. The rule is universal, that legislation shall not be assailed in the courts on an allegation of malice, bad faith or corruption in passing it; and it is manifest that if the allegation, when established, could not affect the validity of the legislation, permitting it to be made could only be an impertinence and an affront.

Wall. 483; Mitchell v. Harmony, 13 How. 115; Griffin v. Wilcox, 21 Ind. 370; Johnson v. Jones, 44 Ill. 142; Hough v. Hoodless, 35 Ill. 166; Wilson Franklin, 63 N. C. 259; Hogue v. Penn, 3 Bush, 663. If persons, while claiming to act as State officers, invade private rights under color of authority unconstitutional and void, they are liable. U. S. v. Lee, 106 U. S. 196; Cunningham v. Macon, &c., Co., 109 U. S 446; Poindexter v. Greenhow, 114 U. S. 270.

1 Durand v. Hollins, 4 Blatch. 451; Ford v. Surget, 46 Miss. 130; Sutton v. Tiller, 6 Coldw. 593; Despan v. Ol. ney, 1 Curt. C. C. 306. If a suit against officers is really to enforce the performance of an obligation of the State in its political capacity, courts of the United States will not entertain it. Louisiana v. Jumel, 107 U. S. 711; Hagood. Southern, 117 U. S. 52.

One department of the gov

In Great Britain it is customary, after times of civil commotion, to pass acts of indemnity and oblivion to heal the disorders which may have sprung up while alarm prevailed, and to protect officials who in good faith exceeded their authority in attempts to prevent or suppress breaches of the law. There is an enumeration of such acts in Phillips v. Eyre, L. R. 4 Q B 225. Something similar was done by provisions in some of the revised State constitutions after the recent civil war in this country. See Drehman v. Stifle, 8 Wall 595.

See Charles River Bridge v. Warren Bridge, 11 Pet. 420

Sunbury, &c., R R Co. v. Cooper, 33 Penn. St. 278; Baltimore v. State, 15 Md. 376; Ex parte McCardle, 7 Wall. 506; Doyle v. Insurance Co., 94 U. S. 535; Ex parte Newman, 9 Cal. 502; Slack v. Jacob, 8 W. Va.

ernment is not at liberty to assail another department in this manner, or to suffer its machinery to be employed by individuals for such a purpose. But legislation exceeds its limits when it orders a trespass upon the property or persons of individuals, or when it provides for taking individual property for [*690] the public *use without making compensation. Legisla tures, like courts, must keep within the limits of their lawful authority.

The General Rule. Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful.' When in legal pleadings the defendant is charged with having wrongfully and unlawfully done the act complained of, the words are only words of vituperation, and amount to nothing unless a cause of action. is otherwise alleged. The principle is forcibly illustrated by the case of Mahan v. Brown. In that case the plaintiff declared against the defendant for wantonly and maliciously erecting on his own premises a high fence, near to and in front of the plaintiff's windows, without benefit or advantage to himself, and for the sole purpose of annoying the plaintiff, thereby obstructing the air and light from entering her windows, and rendering her house uninhabitable. It was held that the action would not lie. "The defendant has not so used his property as to injure another. No one, legally speaking, is injured or damnified unless some right is infringed. The refusal or discontinuance of a favor gives no cause of action. The plaintiff in this case has only been refused the use of that which did not belong to her; and whether the motives of the defendant were good or bad, she had no legal cause of complaint." The decision is import

ant, not only as an illustration of the general rule, but also because it is opposed to the doctrine which prevailed in the

612, 635; Flint, &c., P. R. Co. v. Woodhull, 25 Mich. 199; State v. Fagan, 22 La. Ann. 545. If a municipality has authority to impose taxes, its motives are immaterial. Brown v. Cape Girardeau, 90 Mo. 377.

1 Jenkins . Fowler, 24 Penn. St. 308, 310, per BLACK, J.

WILLES, J., in Gerard v. Lewis, L. R. 2 C. P. 305.

Mahan . Brown, 13 Wend. 261, 265. See Panton. Holland, 17 Johns. 92; Harwood . Tompkins, 24 N. J. 425; Jenks v. Williams, 115 Mass. 217; Thornton v. Thornton, 63 N. C. 211;Burke v. Smith, 37 N. W. Rep. 838 (Mich.)

common law of England, that one, by the uninterrupted enjoyment of the privilege of receiving light and air into his buildings over the contiguous land of another, might acquire a prescriptive right thereto; a doctrine which almost universally has been considered in this country unsuited to our condition and circumstances."

*So it has been held that no action would lie for [*691] maliciously conspiring as insurance officers to refuse insurance on the plaintiff's property; or for maliciously collecting the notes of a bank and presenting them for redemption; or for maliciously adopting a trade mark to the prejudice of a plaintiff who has no exclusive right to appropriate it; or for throwing open one's land to the public, so that they may pass over it, thereby avoiding a toll gate; or for maliciously throwing down

'Parker . Foote, 19 Wend. 309; Myers v. Gemmel, 10 Barb. 537; Rogers v. Sawin, 10 Gray, 376; Carrig v. Dee, 14 Gray, 583; Randall v. Sanderson, 111 Mass. 114; Keats v. Hugo, 115 Mass. 204; Jenks v. Williams, 115 Mass. 217; Ward v. Neal, 37 Ala. 500; Cherry v. Stein, 11 Md. 1; Powell v Sims, 5 W. Va. 1; Keiper v. Klein,51 Ind. 316; Mullen v. Stricker, 19 Ohio, (N. s.) 135; Napier v. Bulwinkle, 5 Rich. 312; Pierre v. Fernald, 26 Me. 436; Hubbard v. Town, 83 Vt. 295; Guest v. Reynolds, 68 Ill. 478; S. C. 18 Am. Rep. 570; Ray v. Sweeney, 14 Bush, 1; Lapere v. Luckey, 23 Kan. 534. See Morrison v. Marquardt, 24 Iowa, 35, and compare Robeson v. Pittenger, 2 N. J. Eq. 57; Barnett v. Johnson, 15 N. J. Eq. 481. Mere prescription is not enough. Hayden v. Dutcher, 31 N. J. Eq. 217. The intent to grant such a servitude will not be implied from the grant of a building having windows overlooking the land retained by the grantor. Keats o. Hugo, 115 Mass. 204. The subject is discussed at large in this case. To warrant preventing the vendor from darkening the vendee's windows, they must be a real neces

sity to him. Rennyson's App. 94 Penn. St. 147. See Sutphen . Therkelson, 38 N. J. Eq. 318. Whether a grant may be implied under any circumstances, see United States v. Appleton, 1 Sum. 492; Durel v. Boisblanc, La. Ann. 407; French v. New Orleans, &c., R. R. Co., 2 La. Ann. 80; Haverstick v. Sipe, 33 Penn. St. 368; Janes v. Jenkins, 34 Md. 1; Parker v. Foote, 19 Wend. 309. As to what comes within a statute for bidding malicious erection on one's land, see Gallagher v. Dodge, 48 Conn. 387.

2 Hunt v. Simonds, 19 Mo. 583.

South Royalton Bank v. Suffolk Bank, 27 Vt. 505.

• Glendon Iron Co. . Uhler, 75 Penn. St. 467.

5 Auburn, &c., P. R. Co. v. Douglass, 9 N. Y. 444, 450, per SELDEN, J. "Independent of authority, if a malignant motive is sufficient to make a man's dealings, with his own property, when accompanied by damage to another, actionable, where is the principal to stop? For instance, if a man sets up a trade, not with a view to his own profit, but solely to injure one already in the same trade, how

fences put up through one's land to mark the lines of a road which has never lawfully been laid out.' Illustrations. [*692] might be multiplied indefinitely, *but it is needless. And

on the other hand the cases are equally numerous which show that the most correct motive, or even an inability to indulge a motive, will not protect one who invades the right of another. The legal wrong is found in the injury done and not in motive."

Apparent Exceptions. Some cases are apparent exceptions to the general rule. Thus, we have seen that malice is said to be an ingredient in the wrongs of slander and libel. But in most cases the exception is only apparent. If the damaging imputation is false, the law supplies the malice, and will neither require it to be proved, nor give immunity because it is disproved. That malice is an element of the wrong in a case in which the proof of it is unimportant, must be purely a legal fiction.

Real Excoptions. The cases in the law of slander and libel in which the actual existence of malice is essential to constitute an actionable wrong, are those in which the law gives a privilege to speak or otherwise publish what at the time the party believes, provided it is done in good faith. Many such cases of privilege have been given in preceding pages,' and it has been shown that the party is protected, even though what he published is false, if he published only what he honestly believed. But in such cases the law itself sets bounds to the right; it gives a privilege with a limit plainly defined; a privilege to speak in good faith, but not otherwise, and the party who maliciously publishes what proves to be untrue, does not avail himself of the privilege, and, therefore, cannot claim its protection.

Precisely the same may be said of the cases of malicious prosecution. Every man is at liberty to make use of the machinery of the law in the assertion of any legal demand

*which he has probable cause to believe exists in his [*693] favor against another, and also in the prosecution of any criminal charge against another which he has probable cause to believe is well founded. This is his lawful privilege, and he is protected in its exercise notwithstanding the demand or the criminal charge proves on investigation to be unfounded. But

master, is nevertheless liable personally. Porter v. Thomas, 23 Geo. 467. The army officer who undertook to remedy the wrong done to a loyal man in the taking of his property by seizing and handing over to him the property of a confederate, was of course liable as a trespasser. Moran v. Smell, 5 W. Va. 26. If good motive could render an otherwise illegal

act lawful, one might justify inflicting punishment by way of discipline on his neighbor's children when they seemed to need it, and the improvised lynch courts which exercise jurisdiction on the borders of civilization in some cases would become perfectly lawful tribunals.

1 Ante, p. 246 et seq.