216 N.W. 898 | N.D. | 1927
Lead Opinion
On the 25th day of November, 1925, C.F. Kelch, state's attorney of Morton county, received an anonymous letter charging the plaintiff, Mrs. Anna Kittler, with a felony, and stating, "if you don't see to it and get her out of town, there is a Women's Club in town that *230 will either lynch or tar and feather her." A short time thereafter, said state's attorney received a letter purporting to come from the plaintiff, Mrs. Anna Kittler, which refers to the subject matter of the former letter, and admits the truth of the statements therein, charging the plaintiff with the commission of a criminal offense, and signed "Mrs. Anna Kittler." On receipt of the last letter, the state's attorney made a complaint before a justice of the peace, a warrant was issued, thereon, and the plaintiff was arrested. After an investigation it appearing that the signature on the second letter was a forgery, the action against the plaintiff was dismissed. Thereafter the plaintiff sued the said state's attorney, C.F. Kelch, the defendant in this action, for damages, alleging all the facts as stated herein, and further that the said defendant, "did falsely, fraudulently, maliciously, oppressively, willfully, knowingly, and negligently, and without probable cause make a criminal complaint against the plaintiff in writing, and affixed his name thereto."
A copy of the criminal complaint, the warrant and the sheriff's return on the warrant are made a part of the complaint in this action, all of which are regular in form and are sufficient in substance. The complaint also includes a statement made by the state's attorney after an investigation and which was manifestly intended to exonerate the plaintiff from the charge made against her in the criminal complaint. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was sustained and the plaintiff appeals.
In oral argument in this court, the plaintiff's attorney insisted that this action is for false arrest, or false imprisonment and in his brief after quoting from the case of Watts v. Gerking,
"If the plaintiff's characterization of his action in the brief as `for false arrest and imprisonment' be correct, the complaint cannot stand *231 a moment, for it appears that the prosecution and conviction of the plaintiff were upon legal process; but `an action for false imprisonment is for the defendant's having done that which, upon the stating of it, is manifestly illegal, while a malicious prosecution is for a prosecution which, upon the stating of it, is manifestly legal.' Lord Mansfield in Johnstone v. Sutton, 1 T.R. 544, 99 Eng. Reprint, 1243, 1 Eng. Rul. Cas. 766. Under our system of procedure a plaintiff's right of recovery depends, not upon the name he gives his action, or the classification to which he subjects it, but upon whether, on the facts exhibited, he is entitled to any legal redress."
Jaggard on Torts, page 424, states the law as follows: "A sufficient judicial warrant takes away from an imprisonment the essential element of illegality, and completely justifies an arrest. If the warrant be wrongfully obtained, altho upon sufficient legal proceedings, the civil action would be malicious prosecution. Marks v. Townsend,
The defendant, Kelch, proceeded under the statute, made the necessary and sufficient complaint, and the defendant was arrested on a sufficient warrant, and it follows that there was no false imprisonment. The remaining question is whether the plaintiff's complaint is sufficient as a case of malicious prosecution.
It is the contention of the plaintiff that the defendant, in making the complaint upon which the warrant was issued, acted in a ministerial *232 capacity and that he is responsible the same as any person who was not an officer.
The general duties of the state's attorney are prescribed in § 3376 Comp. Laws 1913, Subdivision 2 of said section provides: "That he (the state's attorney) must institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that such offenses have been committed."
This section charges the state's attorney with the duty of instituting criminal proceedings for the arrest of any person charged with or reasonably suspected of committing a publicoffense. He has no choice in the matter, the law makes it his duty, and states specifically that he must, and if he fails in his duty he may be removed from office.
Section 10,535 provides, that when the magistrate before whom the complaint is made is a justice of the peace, before issuing the warrant, the complaint, if made by any person other than thestate's attorney of the county, and other evidence taken by such magistrate relating to the offense charged, must be submitted to such state's attorney, and he must examine into the charge, and enter either his approval or disapproval of the issuance of a warrant upon such complaint. If he disapproves no warrant shall be issued, but if he approves the warrant must issue. This section clothes the state's attorney with the judicial authority to decide when the evidence is sufficient and when a person is reasonably suspected of the commission of a public offense. It also contemplates the making of a criminal complaint by the state's attorney and makes a clear distinction between such a complaint and a complaint made by any other person in this to wit, if the complaint is made by any person other than thestate's attorney of the county, it must be submitted to such state's attorney and warrant cannot issue without his approval, but if the complaint is made by the state's attorney who is charged with the duty of instituting criminal proceedings for the arrest of persons charged with, or reasonably suspected of the commission of a public offence, the warrant must issue, for the law has given to the state's attorney, the power to say when a warrant shall issue and when it shall not, and when he decides that the evidence is sufficient it is his duty to institute proceedings as provided in § 3376, Comp. Laws 1913, and make the complaint contemplated in § 10,535. *233
Under § 685, Comp. Laws 1913, the state's attorney is subject to removal by the governor for misconduct, or malfeasance in office, and subject to removal in a judicial proceeding for misconduct or malfeasance in office under § 10,481.
Under § 9830, he is guilty of a misdemeanor if he willfully fails or refuses to perform the duties of his office according to law, and he is guilty of a misdemeanor when he acts contrary to official duty under § 10,891.
The state's attorney is the legal adviser of the county commissioners. He must when required and without fee give his opinion in writing to the county, district, township, and school district officers on matters relating to the duties of their respective offices. He must advise irrigation engineers, and drain commissioners. He is the legal adviser of the grand jury, when there is a grand jury, and of every county officer in the county.
Under chapter 71, Session Laws 1890, prosecutions are by information filed by the state's attorney instead of by indictments filed by the grand jury. When a grand jury is called under § 10,635 "the grand jury has the power, and it is their duty to inquire into all public offenses committed or triable in the county or subdivision, and to present them to the court, either by presentment or indictment, or accusation in writing." § 10,656. When a grand jury is not called the same power is given to the state's attorney under § 10,629 which reads as follows:
"The state's attorney of the county or judicial subdivision in which any person charged with the commission of a crime or public offense has been held to answer, or other person appointed by the court as provided by law to prosecute, must make full examination and inquiry into the facts and circumstances touching any crime or public offense committed by the accused and triable in said county or judicial subdivision, and must file an information setting forth the crime committed according to the facts ascertained on such examination and inquiry and from the written testimony taken before the magistrate, whether it is the offense charged in the complaint upon which the examination was had or some other offense."
In the absence of a grand jury the state's attorney is given the same authority and charged with the same responsibility, except that the *234
language in § 10,629 is more mandatory than § 10,656. The law is well settled that the state's attorney is a quasi judicial officer. The plaintiff admits that he is a quasi judicial officer but claims that he was not acting in a judicial capacity in making the complaint in the criminal action against the plaintiff, and that is the only question involved in this case. It is, of course, well settled that judicial officers are not liable in a civil action for any decision within their jurisdiction. Landseidel v. Culeman,
In the case at bar, there is no question about jurisdiction. The court had jurisdiction as a committing magistrate over the offense charged, and over the person of the defendant charged with the commission of the offense in the county of Morton. It was the duty of the state's attorney to prosecute all criminal offenses committed in said county, he had jurisdiction to hear and to decide that the facts before him were sufficient to institute a criminal prosecution thereon, and authority to have process issued to make his decision effective.
The case of Schneider v. Shepard,
A case in the same class, is the case of Shaw v. Moon,
The defendant Culeman was the justice of the peace who, issued the warrant. The complaint was not approved by the state's attorney as required by § 19,135, but it appeared that the state's attorney had told the justice of the peace some time previously that he might issue warrants in minor cases where he thought a man should be arrested; that it would be all right with him and he would O.K. it. This court said:
"It is elementary that judicial officers are not liable for the erroneous exercise of the judicial powers vested in them. This immunity from liability is based upon considerations of public policy. To hold judicial officers personally liable for errors of judgment concerning either questions of law or fact would be subversive of both independence and efficiency in the administration of justice. This rule of public policy applies as well to inferior courts of limited jurisdiction as to superior courts of general jurisdiction. . . . If a judge acts within his jurisdiction, it has been held that he is not even liable to a party civilly though he act both maliciously and corruptly. Broom v. Douglass, 44 L.R.A.(N.S.) 164, and note (
"Obviously if Culeman was acting judicially and within his jurisdiction, his belief as to whether or not Landseidel had committed some crime was immaterial, as it might have been his duty to issue the warrant *236
nevertheless, or at least he might well have conceived it to be his duty. And if he regarded it as his duty to issue a warrant, neither the fact that he acted maliciously nor the absence of probable cause for the arrest, would render him personally liable. Broom v. Douglass, supra; 11 R.C.L. 815." [
The recent case of Watts v. Gerking,
The following cases we think are especially in point as they relate to officers who are quasi judicial officers, viz.: "Fath v. Koeppel,
In the case of Re Bentine,
In the recent casoe of Halladay v. State Bank,
In the case of Laughlin v. Clawson,
In the case of Downer v. Lent,
The case of Turpen v. Booth,
In the case Yaselli v. Goff (C.C.A.2d) ___ A.L.R. ___, 12 F.2d 396, the complaint alleged, that the defendant willfully and maliciously conspired to get himself appointed as a prosecutor, in order that he might willfully and maliciously indict the plaintiff; that he had others, falsely and maliciously and without reasonable and probable cause did cause to be introduced and used before the grand jury a great mass of false, misleading and hearsay testimony, and thus unjustly, unfairly, and improperly influenced and poisoned the minds of the grand jurors upon which the defendant was indicted, tried, and at the close of the state's case, the court directed a verdict for the defendant who then brought a civil action for damages. In this action the court reviews the decisions at length. First those relating to judicial officers quoting from *239 Bradley v. Fisher, supra, as follows: "In other words, it (the plea) sets up that the order for the entry of which the suit is brought, was a judicial act, done by the defendant as the presiding justice of a court of general criminal jurisdiction. If such were the character of the act, and the jurisdiction of the court, the defendant cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English Judge, it would establish the weakness of judicial authority in a degrading responsibility."
From 2 Cooley on Torts, 3d ed. p. 795: "In effect, the state says to the officer that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the state, and the peace and happiness of society; that if he shall fail in the faithful discharge of them he shall be called to account as a criminal, but that in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages. This is what the state, speaking by the mouth of the common law, says to the judicial officer. The rule thus laid down applies to large classes of officers, embracing some the powers attached to which are very extensive, and others whose authority is exceedingly limited. It applies to the highest judge in the state or nation, but it also applies to the lowest officer who sits as a court and tries petty cases, and it applies not in respect to their judgments merely, but to all process awarded bythem for carrying their judgments into effect." (The Italics are ours.) This statement is followed in Yaselli v. Goff, supra, with the following statement:
"And the immunity which is extended to the judges is in like manner *240 extended to the attorneys in the presentation of the client's case to the court or the jury."
From Munster v. Lamb, L.R. 11 Q.B.D. 588, 7 Eng. Rul. Cas. 714 — C.A., wherein the court said: "to my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel, who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.
"Not only are the judges exempt, but grand jurors are in like manner exempt from actions for malicious prosecution. In 17 Am. Eng. Enc. Law p. 1302, the law is stated as follows: `However recklessly and maliciously a grand jury may have acted in returning an indictment against another without evidence or probable cause, the jurors are not liable to an injured person in an action for malicious prosecution.' . . .
"A public office is an agency for the state, the duties of which involve in their performance the exercise of some portion of the sovereign power, either great or small. The rule of responsibility of a public officer, as held by the courts, is said to be that, if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an erroneous performance, is regarded as an injury to the public, and not as one to the individual. It is to be redressed in some form of public prosecution, and not by a private person who conceives himself specially injured. 2 Cooley, Torts 3d ed. p. 756. In Thibodaux v. Thibodaux, 46 La. Ann. 1528, 16 So. 450, it is said: `Officials in the performance of a duty imposed by law cannot be held in damages for acts done strictly within the lines of official duty.'" [___ A.L.R. ___, 12 F.2d 403.]
From Watts v. Gerking,
Continuing in Yaselli v. Goff, supra, the court said: "The question whether the immunity which attaches, as we hold it does, to a prosecuting officer, applies to shield one who conspires willfully and maliciously to get himself appointed as prosecutor, in order that he may willfully and maliciously indict and prosecute the person he seeks to punish. In our opinion, the reasons which compel us to hold that one who obtains an appointment as a prosecuting officer of the government is immune from civil liability for acts done by him in the discharge of his official duties apply in like manner to protect him against such a charge as that he was governed by improper motives in securing the appointment. The important fact is that he was appointed to the office, and, having been appointed, the public interests require that he shall be free and fearless to act in the discharge of his official duties. If he cannot be charged with acting willfully and maliciously after he gets appointed to the office, no more can he be charged with having conspired to get into the office in order to act willfully and maliciously after he gets his appointment. The one charge is as much to be feared as the other, and is equally derogatory to his public character and usefulness in the office. We are unable to distinguish between the two cases in principle."
In the case of Griffith v. Slinkard,
"The question remains, is the prosecuting attorney any more liable for his alleged participation in procuring the indictment maliciously and without probable cause? In State v. Henning,
"It was held in Parker v. Huntington, 2 Gray, 124, that an action against a district attorney and another person for maliciously contriving to have the plaintiff indicted for perjury, they knowing that he had not committed it, and by their false testimony obtaining a verdict of guilty against the plaintiff, which was afterwards set aside, cannot be maintained.
"There is therefore no more liability against the prosecuting attorney than there is against the grand jury for the return of an indictment maliciously and without probable cause."
In the case of Smith v. Parman,
"We think the reason for granting immunity to judges and grand jurors applies with practically equal force to a public prosecutor in his relations to actions to punish infractions of the law. There is no great danger that abuse of power will be fostered by this exemption from civil liability, for the prosecutor is at all times under the wholesome restraint imposed by the risk of being called to account criminally for official misconduct."
In the case of Schneider v. Shepard,
In the instant case, the state's attorney did not act without statutory law, but used all the machinery which the law provides.
In the case of Watts v. Gerking, supra, the complaint alleged, that the prosecuting attorney instigated others to swear falsely against the plaintiff, in an affidavit for a search warrant knowing at the time that the plaintiff was innocent.
In Yasseli v. Goff (C.C.A.2d) ___ A.L.R. ___, 12 F.2d 396, the complaint alleged, that the defendant conspired to get himself appointed as prosecutor in order that he might have the plaintiff indicted.
In Griffith v. Slinkard, supra, the complaint alleges, that the prosecuting attorney maliciously wrote the plaintiff's name into an indictment, after the grand jury had voted not to indict, and thus maliciously procured an indictment against the plaintiff. In each of these cases it is alleged, that the prosecuting officer instigated others to institute criminal proceedings, and the law makes no distinction between what one does personally and what he procures others to do. If a prosecuting attorney is liable for swearing to a complaint himself he would also be liable if he procured another to swear to the complaint.
In the instant case, if the state's attorney after deciding that the *244 evidence before him was sufficient had gone before a grand jury, and procured an indictment, he would not be liable, for the reason, that he is a public prosecutor, and it would be his duty to present the evidence to the grand jury. It is none the less his duty to act on the evidence which he deems sufficient, in the absence of a grand jury, for the law substituting his office for the grand jury never intended that his immunity in the commencement of a criminal action should be less than that of a grand juror.
We cannot say, as the plaintiff contends, that the state's attorney, a public officer, sworn to enforce the criminal law, and charged with the duty of determining when to commence a prosecution and when to discontinue it, acted as a private citizen in the prosecution of the case. The letters were mailed to him because he was state's attorney, and it is presumed that in the exercise of that discretion which the law reposes in him he acted as state's attorney in the institution of the prosecution, net only in passing upon the question of the sufficiency of the evidence before him, but also, in making a complaint before a justice of the peace upon which warrant might issue and make effective his decision that the evidence was sufficient. Why does the statute give him, and him only, the authority to pass upon the evidence and say when a warrant shall issue? The authority is given to him, so that he may, in fact it is made his duty to commence a prosecution when in his judgment the evidence is sufficient, and it would be ridiculous to hold that after deciding that evidence was sufficient, that he could only make complaint on that evidence at his peril. As Judge Cooley said and as herein before quoted: "It [the principle]applies not in respect to their judgments merely, but to allprocess awarded by them for carrying their judgments intoeffect."
The state's attorney acts for the state. His act in passing upon the sufficiency of evidence as the basis of a criminal prosecution is the act of the state, and if he makes a mistake (as he sometimes will) it is the mistake of the state. Judges of all courts, high and low, county commissioners, justices of the peace and grand jurors are not liable in a civil action for their judicial mistakes, and it would be strange indeed if the state's attorneys of this state, who are charged with theresponsibilities of grand jurors in the prosecution of crime, intheir respective counties, are not exempt from civil liabilityfor judicial mistakes. *245
The first letter received by the state's attorney, charged the plaintiff with a continuing crime, and further stated, "that if you don't see to it, and get her out of town there is a Women's Club in town that will either lynch or tar and feather her." It was not only a statement of the commission of a continuing crime, but a threat of disturbance of the public peace, and of violence against the plaintiff.
The second letter purporting to be signed by the plaintiff amounted to an admission of guilt, and was further a plea in extenuation, or excuse, an appeal to the state's attorney for protection, or at least for noninterference.
If the letters were true, action should be taken immediately for threats of violence were made, the public peace was threatened.
The doctrine of exemption of judicial and quasi judicial officers, is founded upon a sound public policy, not for the protection of the officers, but for the protection of the public, and to insure the active and independent action of the officers charged with the prosecution of crime, for the protection of life, and property. It applies to the office of the state's attorney in this state.
Since the enactment of chapter 71, Sess. Laws 1890, p. 246, prosecutions by indictment are almost obsolete. The burden of investigation, formerly made the duty of grand jurors, has by legislative enactment been made the duty of the state's attorney and when he passes judgment on the sufficiency of the evidence before a justice of the peace before approving the issuance of a warrant, or upon the sufficiency of the evidence within his own knowledge the passing of such judgment is a judicial act, and he is not liable therefor in a civil action if he makes a mistake, or for having process issued to make effective his decision.
The fact that the law gives the state's attorney power to subpoena witnesses in the investigation of infractions of certain laws, does not make it any less his duty to use all the machinery the law places in his hands for the enforcement of other laws where he has not such power. The reasoning that the state's attorney after passing upon the sufficiency of the evidence before him may not make complaint himself without liability, but may have some other person make the complaint on the same evidence without liability simply leads to an absurdity.
The judgment of the lower court is affirmed. *246
NUESSLE and BIRDZELL, JJ., concur.
Dissenting Opinion
I am compelled to dissent in this case. I have no quarrel with the principles set forth in the syllabus. As an abstract proposition this may be correct, though the phrase "the sufficiency of the evidence within his own knowledge" may be open to discussion as to whether it refers to the complaint or to his official actions in the prosecution. The issue involved in this case is — May the state's attorney swear positively to a complaint on his own initiative and be free from liability without regard to truth or falsehood?
The complaint shows that the defendant, as state's attorney, received an anonymous letter charging the plaintiff, a reputable woman, with maintaining a disorderly house and with adultery. Later he received another letter, purporting to be signed by her, in which the truth of the charges were rather defiantly admitted. Neither of these communications was sworn to. Upon this information, and this alone, with no further investigation, he instituted criminal proceedings against the plaintiff, making the complaint himself and swearing to it positively. She was arrested and brought into court, and thereafter the case was dismissed. The record shows that after her arrest the defendant learned that there was absolutely no truth in the charges and that her name had been forged to the letter of admission. He was concerned and chagrined in being thus imposed upon and most honorably made what amends he could make in the way of public announcement for the irreparable injury inflicted upon the plaintiff. She was not satisfied with this determination of the matter and brought this action, setting forth these facts, and the defendant has demurred to the complaint. The district court sustained the demurrer and plaintiff brought this case here on appeal from the order. The opinion of the majority holds she can have no redress in this case.
The basic weakness of this decision, as I see it, is the failure to differentiate between the state's attorney making the complaint himself, and the state's attorney passing judicially upon an affidavit or complaint presented to him. The majority opinion is concerned with his judicial determination in passing upon the sufficiency of the complaint after it is sworn to and presented to him as an officer. I agree heartily with all that is said regarding the exercise of this judicial power. He *247
cannot be held liable for the exercise of this power no matter how flagrantly it may be abused. The enforcement of law and the maintenance of order and security require that any officer entrusted with judicial power in passing upon complaints shall be untrammeled, and the possible abuse of this power must not weigh against the right of society to have officers free from possibility of suits because of erroneous judgment. All this is admitted. It is not the act of the state's attorney in passing upon the sufficiency of the complaint in its form which is in issue here. It is the act of the individual in swearing to the complaint which is the basis of this action. Making such statements and swearing to them is not an exercise of judicial
power — the judicial power is the passing on them after they are made. The question of motive is not involved, nor of actual knowledge. He is not charged with erroneous judicial determination of how to act on a complaint submitted to him as state's attorney, but for what he said in the complaint and for the results proximately caused thereby. This court has already passed upon the question of actual knowledge of facts stated in a criminal complaint in the case of State v. Ramsey,
Stress is laid upon the immunity given a grand juror and authority is cited showing that such grand juror cannot be held liable. Of course, he cannot be held liable. He is passing judicially upon facts presented to him by some one else, and saying whether he thinks they are a sufficient basis for an indictment. He is passing upon the quality of the *248 proof furnished him, but it is furnished by sworn statements of others, or legal proof of some character. It would be entirely different if the juror were the witness. Our statute permits a juror to be a witness and in case he knows anything in regard to the matter under investigation he must declare it to his fellow jurors and they, — not he, — must investigate the same. Section 10,663 of the Code.
The majority opinion enters into an analysis of the statutory powers of the state's attorney. It is beside the point to argue that the state's attorney, on information and belief, files an information charging defendants with felonies. In all cases provided for in the statute he must have a basis for such information. Generally he has the preliminary examination, and proceedings had in justice court which are based upon a sworn complaint. Information and belief alone is never a sufficient foundation for an information or a complaint. It certainly needs no citation of authority to substantiate this statement. The rules laid down in State v. McKnight,
When the state's attorney makes his own sworn complaint as a basis for his official act he is not in a situation different from that of a private citizen. That this is the theory of our criminal procedure is shown in § 10,108, which abridged reads as follows: "Section 10,108. If the state's attorney of any county shall be notified by any officer or other person or be cognizant himself of any violation of any of the provisions of this chapter, it shall be his duty forthwith diligently to inquire into the facts of such violation and for such purpose he is hereby authorized and required to issue his subpoena for such person or persons as he may have reason to believe have any information or knowledge of such violation, to appear before him at a time and place designated in such subpoena, then and there to testify concerning any violation of this chapter. . . . Each witness shall be sworn by the state's attorney to testify the *250 truth, the whole truth and nothing but the truth, and true answer made to all questions which may be propounded to him by such state's attorney touching any violation of the provisions of this chapter. The testimony of every such witness shall be reduced to writing and signed by such witness, as in the taking of depositions in civil cases. . . . If the testimony so taken shall disclose the fact that an offense has been committed against any of the provisions of this chapter, the state's attorney shall forthwith file such statement, together with his information against the person having committed the offense, in some court of competent jurisdiction, and such statement or testimony, together with the information of such state's attorney when verified by him on information and belief, shall have the same effect as if such information had been verified positively."
Here, if anywhere in the Code, the state's attorney is charged with the duty of filing informations against those charged with violation of this law. To give the officer a basis for his act he files with his information the testimony or the statement or the deposition of the witness examined. In passing upon the sufficiency of these he acts judicially and his motive cannot be questioned. His motive is never involved when he is acting officially.
This section suggests two features worthy of note. In effect it gives to the state's attorney inquisitorial powers, somewhat similar to those conferred upon the grand jury, but these are limited to what is known as the prohibition law (Comp. Laws 1913, §§ 10,092 et seq, as amended). This section is a clear recognition on the part of the legislature of the necessity for conferring such new duties upon the state's attorney and investing him with the powers described in the section; but these inquisitorial powers so granted are limited to the violations of this law. In this connection we may state it is a matter of common knowledge that the legislature at the last three sessions refused to enlarge the scope of said powers, either by authorizing the filing of information without testimony as a basis, or by extending the range of inquiry to all crimes. In the former case the legislature is prevented by the constitutional provision already cited; in the latter case, where it is a matter of judgment of the legislature as to the wisdom or necessity, it has refused to proceed further in the matter of such grant.
The next point noticeable is that notwithstanding the fact the *251 legislature confers these inquisitorial powers in prohibition cases, there is no provision made for the state's attorney to make any complaint himself on information and belief, unless the same is based upon the sworn testimony of some one else. He does not take the place of the grand jury to this extent. He does pass upon the quality of the testimony secured by his examination, but he does not furnish the testimony himself.
Again, if the state's attorney may, with immunity, file his own complaint, what need is there even in Prohibition cases for him to file the testimony secured from others? Would it not be enough for him to know what others swear to? If in this case he is immune when he acted on rumor or gossip, why the necessity for filing the testimony taken under § 10,108? Does it not mean the legislature recognized the danger to the prosecuting officer, and thus furnished a basis for him, where, if he made a mistake, it would be a judicial one — in passing on the quality of the proof — and thus relieve him from liability?
This court has had occasion in the past to pass upon the duties of a state's attorney in reference to this law. Re Simpson,
An analysis of the cases cited show they are not in point. The majority cite the case of Watts v. Gerkin,
In the case of Landseidel v. Culeman,
The case of Smith v. Parman,
Turpen v. Booth,
Downer v. Lent,
The case of Fath v. Koeppel,
The case of Re Bentine,
From the extract in the majority opinion taken from Halladay v. State Bank,
An examination, however, shows that this case cited was an action for damages, brought because of an arrest, and the complaint in the criminal case was not made by the prosecuting officer but by the officers of the bank. These officers had submitted the case to the prosecuting attorney and the prosecuting attorney had commenced the criminal proceedings on the complaint furnished him. In addition thereto he had made a personal investigation and the court is passing upon his powers to commence and discontinue prosecution. When the Montana court says: "So he does when proceeding on his own personal knowledge," it has in mind the personal knowledge which the officer had which caused him to discontinue the prosecution. The portion of the syllabus and of the opinion quoted in the majority opinion is dealing with the supplemental knowledge of the prosecuting officer which he had and which was or may have been an inducing cause for his conducting the prosecution and later for its discontinuance.
The citation from Laughlin v. Clawson,
The case of Shaw v. Moon,
The majority opinion cites Yaselli v. Goff (C.C.A.2d) ___ A.L.R. ___, 12 F. (2d ed.) 396. Here the grand jury had returned an indictment against the plaintiff. The defendant, as special assistant to the attorney general of the United States, was active in getting together the evidence for the grand jury and on this evidence the plaintiff was indicted. In this civil action the charge was that the assistance to the grand jury was rendered maliciously, knowing the charges to be untrue. When we analyze the case upon which the plaintiff was indicted we find the defendant did not make any affidavit, nor did he testify. He did not furnish any evidence by affidavit or otherwise. He secured witnesses, had them examined, and then left it to the grand jury to pass on the quality of the testimony furnished. Of course, he was not liable. Had he gone before the grand jury himself and sworn to testimony and then had the grand jury indict, while he would not have been liable for advice in passing upon the quality of the testimony, he would have been liable for his false swearing, the same as any other individual. It seems to me we must differentiate between a man swearing to statements himself and then passing judicially upon whether the statements if true will *257 be sufficient. In the latter case he would not be liable. In the former case he would.
The case of Bradley v. Fisher, 13 Wall. 335, 20 L. ed. 646, does not support the position taken by this court. Here was a case in which the defendant Fisher, as justice of the supreme court of the District of Columbia, attempted to punish the plaintiff for contempt of court in threatening the said justice "during the process of the trial of John H. Suratt (in the criminal court) for the murder of Abraham Lincoln," the contempt being based upon the actions of the plaintiff in accosting the justice just as the court had announced a recess and as the justice was descending from his bench. The justice disbarred the plaintiff. Plaintiff began proceedings for restoration, and was successful therein. He then commenced this action for damages but the supreme court held he could not recover. The justice was judicially passing upon his right as judge of each court to discipline the plaintiff. When the defendant disbarred the plaintiff he should have acted as judge of the criminal court but his order disbarring the plaintiff came from the supreme court of the District. The Supreme Court of the United States held that "the criminal court of the District was at that time a separate and independent court and as distinct from the supreme court of the District as the circuit court is distinct from the Supreme Court of the United States," therefore when the defendant in his subsequent action as judge of the supreme court of the District disbarred the plaintiff he was doing it upon what had occurred in the criminal court. No hearing was had in the supreme court of the District. Plaintiff was restored as a lawyer because of this failure. He then commenced his action to recover damages, but the Supreme Court of the United States held that though the justice in attempting to act as judge of the supreme court of the District in the disbarment of the plaintiff, because of what occurred in the criminal court, had made a judicial error, yet because he was acting judicially though misinterpreting his powers the action for damages could not be maintained. The quotation from this case in the majority opinion is not in point. The defendant assumed when he disbarred the plaintiff that he was at that time acting as judge of the criminal court whereas as a matter of fact the Supreme Court of the United States found that he was acting as judge of the supreme court of the District. But wherever it was, it was a judicial act, and for this as the court says: "The *258 defendant cannot be subjected to responsibility for it in a civil action." We note the evidence upon which he acted was not furnished by himself, it was furnished by the plaintiff. There is no statement in the decision of the Supreme Court of the United States that this evidence was not sufficient to have punished the plaintiff, in fact the intimation is that it was sufficient, but one court cannot summarily disbar a lawyer for what took place in another court — it can only summarily disbar for what took place in the court itself.
The majority decision contains a quotation from Munster v. Lamb, L.R. 11 Q.B. Div. 588, 7 Eng. Rul. Cas. 714 — C.A. This was a case where a lawyer in "an inquiry before a judicial tribunal" was said to have uttered defamatory words against the plaintiff "maliciously and not with the object of supporting the case of his client — without any justification or even excuse, and from personal ill will or anger" towards the plaintiff. The plaintiff "a barrister at law" had caused an "inquiry before a judicial tribunal" to be had against one H. on a charge of having administered "drugs to the inmates of M's house in order to facilitate the commission of a burglary." The defendant appeared as solicitor for H. and during the course of the trial the solicitor was said to have uttered the defamatory words and thereupon the plaintiff brought a civil action against him for damages. It was held he could not recover as the solicitor was immune from liability for what he said in the discharge of his duty as counsel for his client. The case was decided upon the theory that whatever was said in the trial of the case, whether by the judge or lawyer or party or witness, could not be made the subject of a civil action. It was not because he was a lawyer that the action did not lie, but because it was said in the trial of the case and this immunity extended to witnesses, for as the Master of the Rolls said:
"Certain persons can claim the benefit of the privilege which arises as to every thing said or written in the course of an inquiry as to the administration of the law, and without making an exhaustive enumeration I may say that those persons are judges, advocates, parties, and witnesses."
The rule is entirely different from the one contended for here, for if the rule sought to be applied here protects the lawyer then under the *259 authority of the same rule it should protect anyone who made an affidavit for it is the duty of every one to see that criminal laws are enforced and there never could be an action upon a false affidavit. The quotation from the English decision, given in the majority opinion, applies equally well to witnesses for in the same opinion Lord Justice Frye said:
"The rule of law exists not because the conduct of those persons ought not of itself to be actionable but because if their conduct was actionable actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood," and then shows that this same quotation which is set forth in the majority opinion applies equally well to witnesses while they are testifying. The majority opinion says "in the instant case if the state's attorney after deciding that the evidence before him was sufficient had gone before a grand jury" he would not have been liable if an indictment had been secured for the reason that he was "a public prosecutor and it would be his duty to present the evidence to the grand jury" and then goes on to state that "it is none the less his duty to act on the evidence, which he deems sufficient in the absence of a grand jury." That is correct. If some one had claimed to have evidence it would have been his duty to present this evidence to the grand jury, and if he had taken this witness before the grand jury and the grand jury had returned an indictment on this evidence he would have been immune, even if he thought it false, or knew it to be false. He would also have been immune if some one else had sworn to the exact statements he set forth and presented the affidavit to him. That is not what this case is about. It is not because he passed judicially upon the weight of the evidence, but it is because he himself swore to statements alleged to be untrue. We must remember this case is before us on demurrer. In defense or justification he might show the statements were true, or that he had probable cause to believe them true, or that he acted without malice. His judicial act would not be involved and the case would be limited to the making of the complaint. The majority opinion will lead to the conclusion that when the law makes it the duty of any officer, either administrative or quasi judicial to institute criminal proceedings he is always acting *260 judicially and therefore he is immune from suit in all cases where he commences these prosecutions no matter what he does.
That the prosecuting attorney may be sued for malicious prosecution in himself instituting, or being a party to the institution of, criminal proceedings is shown in Carpenter v. Sibley,
The case of Buhner v. Reusse,
In the case of Skeffington v. Eylward,
Here the court says:
"It is further urged on behalf of the defendant that because it was his official duty to prosecute all persons violating the provisions of the Statute (Gen. Stat. 1894, 1863) relating to the obstruction of public highways he is not liable for a mistake of judgment, even if another has suffered by the mistake. If he acted upon probable cause, this would be true, otherwise not. The fact that he acted in his official capacity in making the complaint, as the jury were instructed, is a matter to be considered by them in determining the question of probable cause." That is the principle for which I contend in this case. *261
I am loathe to take a position which would appear to hamper the speedy enforcement of law, but I cannot bring myself to support a contention which would allow a state's attorney to put down in writing and swear to anything he saw fit and thus bring reputable people into the unenviable situation of being charged with and arrested for crime. Even a grand jury cannot do this. It must have testimony from others. If the view of the majority be correct then any state's attorney may sit down any time, draft a complaint and therein state anything he sees fit regarding any person in the state, or charge any crime he wishes, and though it is found to be just as false as was the charge in this case where a reputable woman was charged with adultery and other offenses, yet he would be immune from suit because after he had made the complaint he submitted it to himself as state's attorney and passed judicially upon whether or not it was in form a sufficient basis for prosecution. I grant that if some one else would furnish him with that same sworn statement the state's attorney would be immune, even though he acted upon it having reason to believe it was false. This would be in the exercise of his judicial powers and he is answerable to no one for that. I believe our law contemplates the prosecuting officer must have some reasonable ground for believing the information furnished him is true before he makes the complaint himself. It was a question for the jury to determine whether he had reasonable cause for believing the statements which he swore to were correct and whether want of probable cause is shown.
What would be probable cause in an action against the prosecuting officer who made the complaint himself need not be determined in this case. There is a vast difference between saying the officer is absolutely immune when he makes the complaint and determining what would be probable cause as a defense when he makes the complaint. If making the complaint himself is always probable cause then, of course, he would always be immune.
If a sworn affidavit made by some one else had been attached thereto, that would be conclusive. True, it might be said the state's attorney could get some one to sign a false affidavit, and thus permit his own malice to have free scope. There are contingencies against which the law cannot provide; but in that case the person who made the false affidavit could be prosecuted. The decision of this court would prevent *262 the injured person from redress in such case simply because the officer wrote it down himself and swore to it himself — the private citizen K. talking to the official K. renders the official K. immune. It seems to me that where the official K. undertakes to act as the individual K. he is subject to the same liability as any other individual. I believe the judgment of the lower court should be reversed and the demurrer overruled. I am authorized to say Judge Christianson joins with me in this dissent.
CHRISTIANSON, J., concurs in dissenting opinion.
