are certainly many cases which hold, and more which assume, that the law will hold such officers liable if they act maliciously to the prejudice of individuals. Thus, it is said that the *members of a school board may be held responsible for [*412] the dismissal of a teacher, if they act maliciously and without cause; and a county clerk, for willfully and maliciously approving an insufficient appeal bond; and a wharfmaster, for the removal of a ship from a certain dock, where it can be shown that the order was given maliciously, and with the purpose to cause injury. It has also been assumed that the selectmen of a

town may be held liable to one for whom they appoint an overseer as an incompetent person, provided they act from malice and without probable cause.' Also, that members of a court martial may be liable to parties maliciously convicted by them of delinquency in the performance of military duty.'

[*413]

*In respect to these last cases, though they seem out of harmony with the general rule above laid down, and the reasons on which it rests, yet we may perhaps, safely concede that there are various duties lying along the borders between those of a ministerial and those of a judicial nature, which are usually intrusted to inferior officers, and in the performance of which it is highly important that they be kept as closely as possible within strict rules. If courts lean against recognizing in them full discretionary powers, and hold them strictly within the limits of good faith, it is probably a leaning that, in most cases, will be found to harmonize with public policy.'

Whether officers having charge of elections, and of the preliminary registration and other proceedings, should be shielded by the same immunity that protects judicial officers in general, is a disputed question. In the leading case of Ashby v. White,'

Also, Wasson v. Mitchell, 18 Iowa, 153 (case of supervisors); Walker v. Halleck, 32 Ind, 239 (members of com. mon council); Culver v. Avery, 7 Wend. 380 (loan officer); Downing ◊. McFadden, 18 Penn. St. 334 (canal commissioner); Gregory v. Brown, 4 Bibb, 28 (justice of the peace.)

1 Parmalee v. Baldwin, 1 Conn. 313. 2 Shoemaker v. Nesbit, 2 Rawle, 201. Macon v. Cook, 2 N. & McCord, 379. This seems to be going a great way, but certainly no further than the case of Stewart v. Cooley, 23 Minn. 347; S. C.23 Am Rep. 690. The action in that case was against the judge of a municipal court and others, charging that they conspired to institute a malicious prosecution against the plaintiff, and that one of the defendants made complaint against the plaintiff for perjury, upon which the judge and clerk issued a warrant for his

arrest, which was served, and the plaintiff brought into court for examination, whereupon he was dis charged for the failure of the complainant to appear. This complaint was held to set forth a good cause of action. The wrongful act on the part of the judge here must have consisted in the issuing of process; and as to that he could have had no discretion if the complaint was suffi cient, or if he had, it was a judicial discretion, and to hold him liable by charging some bad motive lying back of it seems to come directly within the condemnation of Bradley Fisher, 13 Wall. 335, above referred

to.

See Pike v. Megoun, 44 Mo. 491. 4Ld. Raym. 938; 1 Salk. 19; 8 State Trials, 89. Compare Drew . Coulton, 1 East, 563, note.

the returning officer who refused to admit a qualified elector to vote was held liable in damages at his suit.' This ruling was followed in Massachusetts at an early day, Chief Justice PARKER setting forth the reasons with great clearness and cogency: "The selectmen of a town," he says, "cannot be proceeded against criminally for depriving a citizen of his vote, unless their conduct is the effect of corruption or some wicked and base motive. If, then, a civil action does not lie against them, the party is deprived of his franchise without any relief, and has no way of establishing his right to any future suffrage. Thus a man may be prevented for his life from exercising a constitutional privilege, by the incapacity or inattention of those who are appointed to regulate elections. The decision of the selectmen is necessarily final and conclusive as to the existing election. No means are *known by which the rejected vote may be [*414] counted by any other tribunal, so as to have its influence upon the election; or, at least, no practice of that kind has ever been adopted in this State. There is, therefore, not only an injury to the individual, but to the whole community, the theory of our government requiring that each elective officer shall be appointed by the majority of votes of all the qualified citizens who choose to exercise their privilege. Now if a party duly qualified is unjustly prevented from voting, and yet can maintain no action for so important an injury, unless he is able to prove an ill design in those who obstruct him, he is entirely shut out from a judicial investigation of his right; and succeeding injuries may be founded on one originally committed by mistake. He may thus be perpetually excluded from the common privilege of citizens, without any lawful means of asserting his rights and restoring himself to the rank of an active citizen. Such a doctrine would be inconsistent with the principles and provisions of our free constitution, and must give way to the necessity of main

'It is proper to say that this decision has been qualified by later cases, and the election officer is now held not liable for an erroneous rejection of a vote, provided he acted bona fide. See Cullen v. Morris, 2 Stark. 577. The same rule applied to

a church warden as officer of a parish election, Tozer v. Child, 6 El. & Bl. 289; S. C. in Exchequer Chamber, 7 El. & Bl. 377, 381, where the question is made whether Lord HOLT did not insist on malice as essential to the action.

taining the people in their rights, secured to them by the form of their government."

1

It will be seen from the foregoing that the learned judge plants his conclusion on the ground of State necessity and the preservation of free institutions. Our institutions rest upon the ballot, and must be preserved by protecting the liberty of casting it. If any officer denies or obstructs this liberty, he takes away a privilege valuable to the possessor and necessary to the country, and if he does this by mistake, and not of malice, the consequences. should nevertheless fall upon him. The same rule has been laid down in Ohio."

In other States this doctrine is denied, and inspectors of election are put upon the footing of quasi judicial officers, and are protected when they act within the limits of good faith, but are made to respond in damages when they maliciously deny the voter's right. Says BARTOL, Ch. J., referring to the Massachusetts and Ohio decisions: "The decisions in those States [*415] rest upon *the principle that a party who, like the plaintiff, has been deprived of a right, is thereby injured, and must have a remedy. It seems to us that the error in the application of that principle to this case consists in a misapplication of what is the right of a citizen under our election laws. In one sense, if he is a legal voter, he has the right to vote, and is injured if deprived of it; but the law has appointed a means whereby his right to vote is decided, and for that purpose has provided judges to determine that question, and has also provided the most careful guarantees for a proper discharge of their duties by the judges, by the mode of their selection and their oaths of office. In all governments power and trust must be reposed somewhere; all that can be done is to define its limits, and provide means for its proper exercise. When the act in question is that of a judicial officer, all that the law can secure is that they shall not with impunity do wrong willfully, fraudulently, or corruptly. If they do so act, they are liable both civilly and

Lincoln v. Hapgood, 11 Mass. 350, 855. See, also, Gardner v. Ward, 2 Mass. 244, note; Kilham v. Ward, 2 Mass. 236; Henshaw v. Foster, 9 Pick. 312; Capen v. Foster, 12 Pick. 485; Keith. Howard, 24 Pick. 292; Blanchard v. Stearns, 5 Met. 298.

1

2 Jeffries v. Ankenny, 11 Ohio, 872; Anderson v. Milliken, 9 Ohio, (N. 8.) 568; Monroe v. Collins, 17 Ohio, (N. 8.) 665. See Long . Long, 57 Ia. 497.

criminally; but for an error of judgment, they are not liable either civilly or criminally. If the citizen has had a fair and honest exercise of judgment by a judicial officer in his case, it is all the law entitles him to, and although the judgment may be erroneous, and the party injured, it is damnum absque injuria, for which no action lies." Like reasoning has led to the same conclusion in other States. And the principle applies as well to

the officers who have charge of the registration of voters preliminary to an election as to the judges or inspectors who receive the ballots."