Reed v. Conway

20 Mo. 22 | Mo. | 1854

Ryland, Judge,

delivered the opinion of the court.

Erom the great number of the questions and the points made in this case, were the court to express its views on each one, would require it to extend the opinion to very great length. I do not think it necessary to notice many of the points made, as there are some plain and general propositions, well settled, which must govern and determine this casé.

It will be seen from the facts set forth in the statement of the case, that this was a suit brought by a deputy surveyor against the surveyor general of the United States for Illinois and Missouri, charging bina with wrongfully and maliciously refusing to receive and approve surveys made by such deputy, as set forth in the first count of his declaration. In the second count, for maliciously annulling and avoiding his contract for surveying, after he had commenced fulfilling it. In the third count, for maliciously and indefinitely suspending the contract, whereby he (plaintiff) was prevented from performing the same. In the fourth count, for maliciously suspending the contract for a time, by which he was delayed in the performance of the contract, and for refusing to receive, inspect or approve his work, whereby plaintiff lost the benefit of his labor and of his contract. The defendant pleaded not guilty. From the great mass of evidence, it will be found that Silas Reed was survey- or general of Illinois and Missouri; that he was removed from office in May, 1845 ; and that Frederick R. Conway, the defendant, was appointed to fill Reed’s vacancy. The plaintiff in this action is brother of Silas Reed. The articles of agreement made between Silas Reed and Warren Reed, by which Warren was to survey certain townships of land, beingfownships 65, 66 and 67, north, ranges 39 and 40 west of the fifth principal meridian, was dated May 10th, 1845. The affidavit indorsed on the agreement, was dated 13th October, 1845, upwards of five months after the date of the agreement. The bond of Warren Reed, with Edwin James, sr., as security, was dated May 10th, 1845. -Thewitness, Sprigg, says he witnessed the bond, as he supposes, about the 13th of October, 1845. He thinks the bond was signed about October 13th. Warren Reed came to the office ; witness supposed the difficulties settled ; witness handed him his bond for completion, pointed out its defects ; these were, the oath was not taken — the signature of Edwin James, sr., as security, was not witnessed — the oath was not indorsed on the contract. Witness says he first saw the contract on July 9th ; he thinks it was then returned to the office. Conway took possession of the office about May 24th. Witness says Conway refused to receive this agreement. Silas Reed stated that the contract was signed by his brother in blank in April, and was signed by Mm (witness) in May, after being sent to Ms brother in the field : says the reason he sent it was this : he was admonished by the department to gel good deputies apd keep them in the field all the time. A witness, Adolph Renard, said he was a clerk in the surveyor general’s office in 1845, and had been since 1887; was clerk at the time Silas Reed was removed, on the 23d or 24th of May, 1845. Reed’s removal was known in St. Louis at noon on the 21st, when the mail came in, by letters ; on the. evening of May 21st, at 4 or 5 o’clock, Reed took the witness to his room ; witness told him that Conway was appointed. Reed asked the witness if he could give contracts to Sargeant and Shields ? Witness said he’d better leave it to Conway ; Reed said he would make the contracts that night, and that the witness could come early next morning. Witness said, “I came and copied the contract to Sargeant; I don’t recollect that Reed asked my advice as to his right to make these contracts ; he only asked me if he had bet-better give contracts to Sargeant and Shields ; that to Sargeant I copied next morning ; it was a rough draft in Reed’s writing; don’t remember the date. I had one contract for Sargeant, dated May 10th; Reed said he would fill it up and prepare it at home that night, 21st; I believe it was filled up in the writing of Dr. James; I never saw Shield’s contract until it came back ; I filled up the instructions only to Sargeant: the date of the contract, on the 10th, attracted my attention on the 21st, and on the 22d, I showed it to Sprigg. Respecting the other contracts, Reed said no more to me than I have stated ; the letter to Shields and Sargeant, inclosing these contracts, was written on the 16th or 17th of May ; I was sick from the 16th to the 2lst, and the letters written were not recorded between these dates. On the 22d, I received them all at my house to record; the clerk came on the 22d or 28d, with a letter dated May 12th, to Shields, to have put back in its place on the boob. I took all that were, given to me; I don’t know when that letter to Shields actually was written; I put the letter to Shields back in its place, as a letter of 12th May ; the instruction of the clerk to me was, to put the letter back in the place of its date, so as not to come after other letters of a subsequent date. The letter to Sargeant, I received to record on the 22d or 23d; when I went home sick, I took it home. I had no idea when it was written, except from the conversation of Dr. Reed on the evening of the 21st May ; by referring to the letter book, I find that there are nine letters'inclosing contracts, dated May 12th; I got none of these letters to record prior to the 22d ; the drafts of letters we dated for the records. The surveyor general makes drafts, and from these are made letters to be sent. In this case they had accumulated; I don’t know who copied from the draft the letters to be sent off; I was sick myself ; I had no means of knowing that the nine letters, except Shields’ and Sargeant’s, were or were not written at the date they bore. I told,all this conversation on the evening of the 21st with Reed, to Conway ; I probably told Conway that all was not right, when I saw, on the 21st, the date of the 10th on the contracts of Shields and Sargeant; but it is four years ago, and I do not well recollect. I know nothing of those contracts except to Sargeant and Shields ; it was not the practice to fill up contracts out of the office ; these two contracts Reed said he would take home and fill up and bring back the next morning ; all this I told Conway. I told Conway that, in my opinion, these two contracts were ante-dated; I told James that I would lay this matter before the general land office, and also before Conway ; there was no discussion as to the mode of action ; I did make a communication to the defendant, I believe ; I recollect no contract with Dr. James of May 10th ; I did write to the general land office myself about the matter; I don’t know when the letters to Shields and Sargeant were sent, but I believe they were sent after they were recorded; I don’t recollect when I finished recording them; it was three or four days I suppose; they were all recorded at one time — Warren Reed’s letter among the rest; don’t know when Warren Reed’s letter was sent; I only saw the draft of the letter, and never the letter itself. Witness said he had no reason to suppose Warren Reed’s contract was ante-dated; says be believes they were- all dated right, except Shields’ and Sargeant’s. Witness says he often heard Conway say that Dr. James was not sufficient security for that contract.”

Conway comes into the office of surveyor general on 24th May, 1845. He has been informed of the contracts made by Silas Reed with Shields and Sargeant — these contracts spoken about, and inquiry made by Reed of one of the clerks in the office, on the 21st of May, in regard to the propriety of making them, evidently impressing the clerk with the idea that they were not then made ; yet on the next morning, 22d May, the clerk finds the contract with Sargeant dated May 10th. That attracts so much his attention, that he calls the attention of Mr. Sprigg, another clerk in the same office, to the transaction; writes to the department at Washington about it, and lays the same before Conway, the new officer; tells him he believes all is not right. Here are other contracts dated 12th May — among these, the contract of the plaintiff, Warren Reed, to which this action owes its origin, Conways’ suspicions might well bo awakened ; the clerk’s obviously were.

Let us now turn to the powers and duties of the surveyor' general. On the 18th May, 1796, the office of surveyor general was, by act of congress, first created; his duties were to engage a sufficient number of skillful surveyors, as his deputies, whom he shall cause, without delay, to survey and mark the unascertained outlines of the lands lying north-west of the river Ohio, and above the mouth of the river Kentucky, in which the titles of the Indian tribes have been extinguished, and to divide the same in the manner hereinafter directed : he shall have authority to frame regulations and instructions for the government of his deputies ; to administer the necessary oaths upon their appointments ; and to remove them for negligence or misconduct in office. (1st U. S. S. at large, 464.)

The surveyor general of Illinois and Missouri was created by act of congress of 29th April, 1816, with same general powers of tbe surveyor general of the lands nortb-west of Ohio. (3 U. S. Statutes, 325.)

By these acts, the surveyor general is an executive officer, with ministerial duties, and also with judicial powers in some cases. He must decide as to the qualifications and slall of his deputies : he must decide as to the correctness of the work— the sufficiency of the bond, as regards the security of his deputies ; has power to administer the oath of office to his deputies : he can remove from office for negligence or misconduct; can, consequently, institute investigations in regard to such matters, and can decide and determine the same ; must often decide according to his own judgment in matters connected with the public interest and welfare, in regard to the surveys of the public lands ; can frame regulations, and instructions for the government of his deputies, and, as a matter of course, can require obedience and conformity to such regulations and instructions. See Opinion of Att’y General Wirt below. Opinions U. S. Att’y Gen’ls, 1 vol. p. 438. t

“ This act imposes upon the surveyor the following duties :

1. To engage a sufficient number of skillful surveyors as his deputies.

2. To cause so much of the land as the president of the United States should direct, &c., to be surveyed, divided in the manner in which the surveyor general had been authorized to do, &c.

8. To do and perform all other acts which the surveyor general was authorized and directed to do, with regard to the lands under his charge.

4. To do and perform all and singular the duties required by law to be performed by the principal deputy surveyor for the territory of Missouri.

5. To fix the compensation of the deputy surveyors, chain-carriers and axe-men: Provided, that the whole expense of surveying and marking the lines should not exceed three dollars for every mile that should be run and surveyed.

This act having, by reference, devolved on the surveyor of Illinois and Missouri, the same duties which had, by previous law, been prescribed for the surveyor of the United States and the principal deputy for the territory of Missouri, it becomes necessary to turn to the laws which prescribe these duties. °

The Surveyor General. — This officer was appointed under the act of the 18th May, 1796, " providing -for the sale of lands of the United States in the territory north-west of the Ohio and above the mouth of 'the Kentucky river." His duties prescribed by law are :

1. To engage a sufficient number of skillful surveyors as his deputies.

2. To cause his deputies, without delay, to survey and mark the unascertained outlines, &c., and to divide the same in the manner therein dictated.

8. To frame regulations and instructions for the government of his deputies.

4. To administer to his deputies the necessary oaths, upon their appointment. .

5. To remove those deputies for negligence or misconduct in office.

6. Erom the field books returned to him by his deputies, to cause a description of the whole lands surveyed to be made out; a fair plat to be made of the townships, and fractional parts of townships, contained in the said lands, describing the sudivi-sions thereof, and the marks of the corners.

7. To cause the plat so made to be recorded in books to be kept for that purpose, a copy whereof is to be kept open, at the surveyor general’s office, for public information, and other copies to be sent to the places of sale, and to the secretary of the treasury.

The Principal Deputy Surveyor of Missouri. — The only duty of this officer which it is necessary to notice, on account of the reference made to those duties under the law under which General Rector was appointed, is that which requires this principal deputy to execute himself, or cause to be executed by Ms deputies, sucb surveys as may be authorized by law.

A.s the skillful deputies so required by the law to be appointed by the surveyor in chief, are placed under his superintendence ; as he is made responsible, in the first instance, for the judiciousness of the selection, and by the power and duty of removing them for negligence or misconduct in office, is made responsible for the manner in which they perform their duties, it becomes necessary to inquire what those duties are. The duties of the deputies, as prescribed by the act of the 18th May, 1796, are :

1. To proceed, without delay, to survey and mark the unas-certained out lines, &c., and to divide the same in the manner directed by that act: that is, the deputies themselves are to do this work, and the surveyor general is expressly required to cause them to do it.

" 2. To cause to be marked on a tree, near each corner, within the section, the number of such section, and over it, the number of the township within which such section may be.

3. The deputies shall carefully note, in their respective field books, the names of the corner trees mar leed, and the number so made.

4. To divide the fractional parts of townships into sections, in the manner required by law, and to annex the fractions of sections to the adjacent entire sections.

5. To mark all the lines plainly upon trees, and to measure those lines with chains containing two perches of sixteen and a half feet each, subdivided into twenty-five equal links ; which chain shall be adjusted to a standard to be kept for that purpose.

6. Each deputy surveyor is ordered to note in his field book the true situation of all mines, salt lides, salt springs, and mill seats which shall come to his knowledge; and to note, also, in his field book, all water courses over which the lines run by him shall pass, and also the quality of the land.

7. To return the field books so made out to the surveyor general, who shall therefrom cause a description of the whole lands surveyed to be made out and transmitted to the officers who may superintend the sales.

It is manifest, from this view of the laws, that the national legislature has confided the very important business of surveying the public lands to deputy surveyors only ; with regard.to whom it has prescribed the following guards :

1. That they shall be selected by the surveyor general for their skill.

2. That they shall be sworn by the surveyor general to the faithful performance of their duty.

•3. That they shall act under regulations and instructions framed for their government by the surveyor general. ' »

4. That they shall be removable, at the pleasure of the surveyor general, for negligence or misconduct in office.

It may not be amiss to notice, also, a species of lateral check-which the law has placed on the work thus to be done by the deputies ; it arises from the duty imposed on the surveyor to cause to be deduced from the field books returned by his deputies a fair plat of all the townships and fractional parts of townships contained in the land described in those field books— a process calculated to detect any inaccuracy in the work returned by the deputy ; and much better calculated to detect it than if the deputy himself had been required to make the plat, and the surveyor general merely to examine the plat so made ; because the first is a more secure process and less liable to oversight and neglect than the latter.

The act of 29th April, 1816, under which Gen. Rector was appointed,- after fixing his salary at a thousand dollars, authorizes him to receive from individuals, “for recording the surveys executed by any of his deputies, at the rate of twenty-five cents for-every mile of the boundary line of such survey which is further confirmation, if any were required, that the law contemplates no survey but such as are executed by the deputies themselves.”

Now an officer of these powers, and with the burden on him of a faithful discharge of these duties — -just coming into office, receiving unfavorable impressions from those who had a right to know, and who did know the conduct of his predecessor— seeking for information of such contracts just made, and finding no such agreements, or contracts, nor bonds of such contractors on the files of his office as were required by law and tire regulations of the department, might very properly think that all was not right.

The plaintiff bases his right of recovery in this case on two main grounds. 1st, the binding obligation of the surveying contract made between Silas Reed, the surveyor general, and himself, on the United States and all its officers. 2d, the defendant, by suspending the contract and- afterwards annulling it, violated the rights of the plaintiff under the contract, by refusing to receive his notes or permit him to file them in his office, so as to obtain the benefit of his contract, and is liable to plaintiff for all damages sustained.

Without undertaking to decide upon the validity of the contract, for it may be a binding contract and yet the defendant not liable in this action, I shall pass to the second proposition, for that I consider the main question in this case. Yet it may not be amiss to give some hints on one important matter in relation to these surveying contracts. The practice of sending out from the office blank agreements to the deputy surveyors in the field, for surveying other lands than those originally contracted for; that is, agreements left blank as to townships, ranges, &c. ; blank as to quantity of lands -to -be surveyed, and these agreements to be filled up and sworn to, as may best suit the deputy, is a practice fraught with so much evil, as to merit the repro-bation of the courts of j'ustice of the country.

Let us for a moment contemplate this matter. Here comes to the deputy surveyor in the field a blank agreement for another survey of the public lands ; the townships are left blank ; the ranges are loft blank; it may be filled by inserting any reasonable number of townships, from one to ten or twenty, as the case may bo, and with any range. The surveyor knows the country ; he selects his townships and his ranges, so as to fill his blank agreement with lands in that portion of the country most easily surveyed : he may skip one township or range, because it is broken or mountainous, or because it is cut through by a' water course, or because it contains lakes, or any other difficulty or obstruction to ordinary field work ; select the part most accessible, and most propitious for field work, and throw the most difficult township and ranges upon the hands of less favored deputies. Such may and would be the result, by the surveyor general sending out to the field the blank agreements for public surveys, to be there filled up by such deputies as he might see proper and fit to trust. Let the agreements and bonds and affidavits all be prepared, and properly executed, and then let the work begin.

There can also be no room for doubting that the personal supervision of the deputy is necessary, before he can make the certificate to be attached to the field notes. He cannot employ an assistant, though such assistant be a sworn deputy himself. The regulations require the personal services ; the personal supervision of the deputy himself: he must do the work himself, or at least be present during the operation. " The law does not recognize such officers as the assistant surveyors of the deputy surveyors ; for it contemplates the deputies themselves as bound to perform in person the duties prescribed by law to them.” Att’y Gen. Wirt’s Opinion. 1 vol. Opin. Att’y Gen. 435.

1. I come now to the main question. Is the surveyor general liable to an action by a deputy surveyor, for annulling his contract, revoking his appointment, refusing to receive and file his work or approve the same, so that he may get his compensation ? This is an important question; it has been felt as such, and has met with due reflection and consideration.

From a careful examination of authorities from the case of Turner v. Sterling, 23d Charles II., reported in 2 Ventris, 26, down to our own times, both in the English and American courts, tbe doctrine that a ministerial officer, acting in a matter before Mm with discretionary power, or acting in a matter before him judicially, or as a quasi judge, is not responsible to any one receiving an injury from such act, unless the officer act maliciously and wilfully wrong, is most clearly established and maintained.

The case of Ashby v. White, is relied on by the plaintiff in support of his action. I will notice this hereafter. In the case of Turner v. Sterling, 2 Vent. 26, the plaintiff charged " that the defendant, not minding the execution of his office, but violating the law and custom of the city, did then and there maliciously refuse the numbering of the polls,” &c. Three judges here held that the action was maintainable, against the opinion of Chief Justice Yaughn. This was afterwards affirmed in King’s Bench. Ashby v. White, 2 Lord Raymond, 938 : In this case, it whs held, that a man who has a right to vote at any election, for members of parliament, may maintain an action against the returning officer, for refusing to admit his vote. The declaration contains an averment, that the act was done fraudulenler et malitiose. After verdict for plaintiff, on not guilty pleaded, it was moved in arrest of judgment, that the action was not maintainable, and three of the four judges were in favor of the motion — Chief Justice Holt against it. This judgment was afterwards reversed in the House of Lords. But from one of the resolves in the House of Lords, in this case, it may be seen that they held the matter actionable, by reason of the malicious conduct, as charged, of the defendant. Lord Holt held, that the defendant was not a judge, nor any thing like a judge, but only an officer to execute a precept. Justice Hould considered the defendant a judge; Justice Powys, a quasi judge, and Justice Powell thought the defendant no judge, nor quasi judge. This last case, then, may be considered as one not contrary to the general doctrine, that, for a judicial act, within the authority and jurisdiction of a ministerial officer, such officer is, and can be liable to a party injured thereby, only when the act is done wilfully and. maliciously wrong. In Massachusetts, it was held, that an action lay against the selectmen for refusing to receive the vote of a qualified elector, although not chargeable with malice. Lincoln v. Hapgood et al. 11 Mass. 350. In delivering the opinion in this case, Parker, Chief Justice, says: "In consequence of an increased interest in elections, it has become a matter of serious consideration whether the selectmen of towns, acting fairly in discharge of a duty imposed upon them by law, shall be exposed to actions for a mere mistake of law, or misapprehension of facts ; whether, in truth, they are not to be considered as judge, and so entitled to the common privilege of the judicial character, not to be punished, orto be responsible in damages, for any consequence of a judgment merely erroneous. I confess I have, for some time, maintained the affirmative upon this question, and have, in one or two instances, at nisi prius, given this opinion, reserving a right to the plaintiff to have the question decided by the whole court. But long reflection upon the subject, and the reasoning of those of my brethren, who have inclined to the opposite opinion, have finally satisfied me that I was mistaken.” In this same opinion, the Chief Justice, after mentioning the cases of Ashby v. White, Drewe v. Coulton, Harman v. Tappenden, 1 East, 583, says : “ It is fair to suppose, that an action of the case cannot now be maintained in England, for rejecting a vote, unless the injury is proved to have been done maliciouslyIn a note to this very case of Lincoln v. Hapgood et al., the reporter says : "It would seem that the selectmen did not merely act ministerially, but judicially, in refusing the plaintiff’s vote ; and, in general, no action can be supported against any person acting judicially, within the limits of his jurisdiction, for any judicial act, however erroneous his decision or malicious his motive and' cites 5 Mass. 547. 1 N. Hamp. 88. 1 Salk. 306. 2 T. R. 305. 5 T. R. 186. 11 Johns. 114. Ld. Ray, 466. 3 Maule & S. 325. 2 Bay, 169. 4 Bibb, 28. 3 Caines Rep. 170. 17 Johns. 145. This case, then, from 11 Mass. R., may be considered as not regarding the act of selectmen of towns, in rejecting a vote or refusing to receive a vote, as a quasi judicial, but merely as a ministerial act. This case cannot, then, be considered as an authority, where the act is a judicial one.

In the case of Freeman v. Otis, 9 Mass. Rep. 272, the court said that, " Where a public agent makes a contract in the name and behalf of the government, it is a point well settled, that the agent is not liable to the action of the party contracted with, who must look to the government. But if such agent should deny to the government that he had entered into such contract, and by such interference prevent the party from his remedy, as against the government, he must be personally liable, as he has by his conduct in effect disavowed his acting in the character of a public agent.” This case does not contravene the proposition under investigation. It is a well settled principle that, where a man acts as agent for the public, and treats in that capacity, he is not personally liable.

In the case of Mostyn v. Fabrigas, Cowper’s Rep. 161, nothing is found against this general proposition. One of the grounds of defence in that case was, that the defendant, being governor of Minorca, is answerable for no injury whatever done by him in that capacity. To this, it was answered, if the defendant has a justification, he must plead it, and that if the court had not a general jurisdiction of the subject matter, he must plead to the-jurisdiction; cannot take advantage of it on general issue. Therefore, by the law of England, if an action be brought against a judge of record, for an act done by him in his judicial capacity, he must plead that he did it as judge of a court of record, and that will be a complete justification. So in this case ; if the injury complained of had been done by the defendant, as a judge, though it arose in a foreign country, where the technical distinction of a court of record does not exist, yet sitting as a judge, in a court of justice, subject to a superior review, he would be within the reason of the rule, which the law of England says shall be a justification; but then he must plead it. But the sacredness of the defendant’s person, as governor, will not justify him ; and if it would, it must be pleaded. There1 is nothing in the remark of'Lord Mansfield, except biting sarcasm, “ that the action, if it did not lie against any other man, it shall, most emphatically, lie against the governor.”

In the case of Garland v. Davis, (4 How. Rep. 149,) the opinion of the court was confined to a question on the pleadings, and no opinion on the merits was either formed or given by the court; the majority of the court thinking the'pleadings were in such a state as to preclude them from giving any-satisfactory opinion on the merits.

In Wilkes v. Dinsman, 7 How. Rep., January term, 1849; Supreme Court United States, p. 130-131, Justice Woodbury, in delivering the opinion of the court, says: “ 'Henee, while an officer acts within the limits of that discretion, the same law which gives it to him will protect him in the exercise of it; but for acts beyond his jurisdiction, or attended by circumstances of excessive severity, arising from ill-will, a depraved disposition, or vindictive feeling, he ’ can claim no exemption, and should be allowed none, under color of his office, however ele-, vated or however humble the vietim. (2 Carr. & P. 158, note. 4 Taunt. 67.) When not offending, under such circumstances,, his justification does not rest on the general ground of vindicating a trespass in private li'f'e, and between those not acting-officially and not with discretion. Because then, acts of vio-, lence being first proved, the person using them must go forward next, and show the moderation or justification of the'blows used. (2 G-reenl. Ev. §99.) The chief mistake below was, in looking only to such cases as a guide; for the justification rests here on a rule of law entirely different, though well settled, and is, “that the acts of a public officer, on public matters, within his jurisdiction, and where he has a discretion,, are to be presumed legal, till shown by others to be’ unjustifiable. (Gidley v. Lord Palmerston, 3 Brod. & Bing. Rep. 275. Vanderheyden v. Young, 11 Johns. 150. 6 Harr. &, Johns. 329. Martin v. Mott, 12 Wheat. 31.) This, too, is not on the principle merely that innocence and doing right. are £b be presumed, till the contrary is shown ; (1 Greenl. secs. 85-87;) but that the officer, being trusted with a discretion for public purposes, is not to be punished for the exercise of it, unless it is first proved against him, either that he exercised the power confided, in cases without his jurisdiction, or in a manner not confided to him, as with malice, cruelty, or wilful oppression; or, in the words of Lord Mansfield, in Wall v. McNamara, that he exercised it as “ if the heart is wrong.” (2 C. & P. 158, note.) In short, it is not enough to show that he committed an error in judgment, .but it must have been a malicious and wilful error. Harman v. Tappenden et al., 1 East, 562-565, note. Justice Woodbury then proceeds : “It may not be without some benefit, in a case of so much interest as this, to refer a moment further to one or two particular precedents in England and in this country, and even in this court, fin illustration of the soundness of these positions. Thus, in Drewe v. Coulton, 1 East, 562, note, which was an action against the defendant, who was a public returning officer, for .refusing a vote, Wilson, J., says : “ This is, in the nature of it, an action for a misbehavior of a public officer in his duty.” Now I .think that it cannot be called misbehavior, unless mali-' ciously and wilfully done, and that the action will not lie for a mistake in law. By wilful, I understand contrary to a man’s own conviction. In very few instances is an officer answerable for what he does to the best of his judgment, in cases where he Is compellable to act; but the action lies where the officer has an option whether he will act or not.” (See these last cases .collected in Seaman v. Patten, 2 Caines, 313-315.)

In a case in this country, (Jenkins v. Waldron, 11 Johns. Rep. 121,) Spencer, J., says, for the whole court: “It would, in our opinion, be opposed to all the principles of law, justice, and sound policy, to hold that officers called upon to exercise their deliberate judgments, are answerable for a mistake in law, ■either civilly or criminally, when their motives are pure, and .■untainted with fraud or malice.” Similar views were again expressed by the same court, in same volume, p. 160, in Van-derheyden v. Young. And in a like case, the Supreme Court of New Hampshire .recognized a like principle. It is true, said the Chief Justice for-the court, that moderators may de-decide wrongly with the best intentions, and then the party will be without remedy; and so may a court and jury decide wrongly, and then the party will be without remedy also. But there is no liability in such case,, without malice alleged and proved. Wheeler v. Patterson, 1 N. H. Rep. 90. Finally, in this court, like views were expressed, through Justice Story, in Martin v. Mott, 12 Wheat. 31, “ Whenever a statute gives gives a discretionary power to a person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statutes constitute him the sole and exclusive judge of the existence of those facts. Every public officer is presumed to act in obedience to Ms duty, until the contrary is shown.” In the case of Dinsman v. Wilkes, (12 How. 404-405,) in 1851, Chief Justice Taney says, when the case was last before the court: “The case, therefore, turns upon the motive which induced Captain Wilkes to inflict the punishments complained of ; and this question is one exclusively for the jury, to be decided by them upon the whole testimony. And the rule of law by which they must be governed in making up their verdict, is contained in a single proposition. It is this : If they believe, from the whole testimony, that the defendant, in all the acts complained of, was actuated alone by an upright intention to maintain the discipline of his command,, and the interest of the service in which he was engaged, then the plaintiff is not entitled to recover. But if they find that the punishment of the plaintiff was in any manner or any degree increased or aggravated by malice or a vindictive feeling towards him, on the part of Captain Wilkes, or by a disposition to oppress him, then the plaintiff is entitled to recover.” In Kendall v. Stokes, 3 Howard, 97, Chief Justice Taney, in delivering the opinion of the court, says : “ We are not aware of any case in England or in this country, in which it has been held that a public officer, acting to the best of Ms judgment, and from a sense of duty, in a matter of account with an individual, has been held liable to an action for an error of judgment. But a public officer is not liable to an action, if he falls into error in a case, where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion — even although an individual may suffer by his mistake. A contrary principle would, indeed, be pregnant with the greatest mischief. It is not necessary, we think, to refer to the many cases by which this doctrine is established. It was fully recognized in the case of Gidley v. Lord Palmerston, 3 B. & B. 275.” In this case against Lord Palmerston, it was held that an action of assumpsit could not be maintained against the secretary at war by a retired clerk of the war office, for his retired allowance, although such allowance was included in the yearly estimates drawn for by such secretary, and received by Mm as applicable to such specific allowance, on the grounds that the secretary is only chargeable in his public and official, character, and that an action cannot be maintained against him, as such, for any thing done by him in that character, although it may amount to a breach of employment, and constitute a particular and personal liability, as it would tend to expose him to an infinite number of actions, to be brought by any persons who might suppose themselves aggrieved. In Rice v. Chute, Lord Kenyon said : “ That he could not conceive how the captain of a troop could be personally responsible for forage furnished the troops, whether he had received any money for that purpose ,or not.” See note to Freeman v. Otis, 9 Mass. 264.

In the case of Kendall v. Stokes, Chief Justice Taney, speaking of the case of Ferguson et al. v. Earl of Kinnowl, et al., 9 Clark & Finnelly, 251, which case was relied on by the counsel for the defendant in error, says : ‘ ‘ This case is in no respect in conflict with the principles above stated: nor with the rule laid down in the case of Gidley v. Lord Palmerston.” In the case from' Clark & Finnelly, the point decided was, not only that the act was ministerial, but because it bad been decided to be such by the highest judicial tribunal known to the laws o£ Great Britain. The refusal for which the suit was brought took place after the decision, and the learned Lords by whom the case was decided, held that the act of refusal, under such circumstances, was to be regarded as wilful and with knowledge; that the refusal to obey the lawful decree of a court of justice, was a wrong for which the the party who had sustained injury by it might maintain an action, and recover damages against the wrong doer.

In Weaver v. Devendorf, 3 Denio, 120, it was held, that a public officer is not responsible in a civil suit, for a judicial determination, in a matter over which he had jurisdiction, however erroneous or however malicious the motive which produced it. Weaver sued Devendorf and two others before a justice of the peace, and declared against them in case, for that, being assessors of the town of Frankfort for the year 1843, they assessed the plaintiff’s taxable property at $1800, and in so doing, refused to allow him the benefit of the exemption to which he was entitled as a minister of the gospel; that they estimated his property at a higher rate than that of other tax-, able inhabitants of the town, and refused to make a deduction from his personal property, for debts owing by him, though he proved to their satisfaction that he owed such debts, by means -of which he was taxed and obliged to pay a large sum, &e. In some of the counts, the defendant’s conduct was charged to have been wilful and corrupt, and in others, careless and negligent. The defendants pleaded the general issue. The justice, after trial before him, rendered judgment for the plaintiff, which the Common Pleas reversed. The plaintiff brought error to the Supreme Court. Beardsley, J., delivered the opinion. The judge said, “ the case might be disposed of on narrow grounds, for there was no evidence to justify the conclusion that the defendants acted maliciously in fixing the value of the property of the plaintiff or of any one else ; and surely it will not be pretended they were liable for a mere error of judgment. But I prefer to place the decision on the broad ground, that no public officer is responsible in a civil suit, for a judicial determination, however erroneous it may be, and however malicious the motive which produced it. Such acts, when corrupt, may bo punished criminally, but the law will not allow malice and corruption to be charged in a civil suit against such an officer, for what he does in the performance of a judicial duty. The rule extends to judges, from the highest to the lowest; to jurors, and to all public officers, whatever name they bear, in the exercise of judicial power. It, of course, applies only where the judge or officer had jurisdiction of the particular case, and was authorized to determine it. If he transcends the limits of his authority, he necessarily ceases, in the particular case, to act as a judge, and is responsible for all consequences. But with these limitations, the principle of irresponsibility, so far as respects a civil remedy, is as old as the common law itself. The authorities on this subject are almost innumerable.” Here follows a list of authorities, which I do not think necessary to insert.

In the case of Wilson v. May or, &c., of New York, Beardsley, J., in delivering the opinion of the court, says : “ And, although the officer may not, in strictness, be a judge, still, if his powers are discretionary, to be exerted or withheld, according to his own view of what is necessary and proper, they are in their nature judicial, and he is exempt from all responsibility by action, for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong, which may have been done.” 1 Denio, 599.

I do not think it necessary to cite further authorities to support the general proposition I laid down, viz : That where a ministerial officer does an act as a judge, or does a judicial act, which is within his power and jurisdiction, then, although an injury may arise to another, yet such officer is not liable to a civil action by the injured party, unless it be proved that the act was wilful and malicious. The cases from Denio go further, and exempt sucb officer thus acting from all liability to civil action, however malicious or corrupt bis motives. Without agreeing to or dissenting from the views of the court in the two cases last cited, the authority of the highest courts in England and our country, will bear out the proposition, • that the ministerial officer, acting judicially within his jurisdiction, is not liable, unless his acts be wilful and malicious. Now apply these principles to the case before us, and the judgment of the court below cannot stand.

I will, on purpose, forbear to comment on the evidence produced by the parties — will say nothing about the promptings and suggestions of the former surveyor general, nor of the letters and correspondence of the defendant. In looking over such a mass of testimony, it may be. an easy matter to find- exceptions to the admissibility of parts of it, which might well have been sustained. Nor will I notice the great number of instructions which the defendant asked for, and which the court refused to give. Those instructions calling on the court to tell the jury that they must find for the defendant, unless they, from the evidence, believed that he acted wilfully and maliciously in this transaction, ought to have been given. His liability alone depends on the malice and wilfulness of his acts in suspending, then annulling the contract, and in refusing to receive and approve the field notes and the work. If, from the whole transaction, taking into consideration the time of the making of the agreement, the affidavits, security to bond — the information received by defendant from the clerk in the department — the defendant’s letters to the commissioner of the general land office — upon viewing the whole transaction, situation of the .parties at the time,'the jury should believe that Conway acted from his own judgment and conviction of what was right and proper to be done by him in the premises, to best promote the public good and the public interest, then they will find for him. But if, on the contrary, they believe he acted from malice or ill-will, or from a determination to oppress-and harrass the plaintiff, and to do him unjustly an injury, then they will find for the plaintiff.

The instructions for the plaintiff, about the malice and spite of the defendant being a ground to award a further sum to compensate for any vexation, are all wrong —■ the malice of the defendant, if there be any, being alone the ground upon which the action can be maintained. Now all the instructions refused, and all given, which are repugnant to and incompatible with the views of the court in this opinion, are improper and should not have been given.

We have said nothing about the survey of land in Iowa, not deeming, that a question of much weight in this case.

The motives which induced the act of the defendant, in annulling the contract, in refusing to accept or receive or approve the work, are brought before the jury; and if, from all the facts and circumstances attending the whole affair, they shall-believe that Conway was actuated, not by malice or spite or wilfulness, to injure, harrass or oppress the plaintiff ; but was acting from his own judgment and conviction, in what seemed to him to be best .for the public good and public interest, although in such act he might be mistaken, yet he is not liable to the plaintiff under such circumstances. On the other hand, he is liable, if his conduct was contrary to his own judgment of what was right and proper, and was the offspring of spite or malicious feeling against the plaintiff.

The judgment of the Circuit Court must, be reversed and the cause remanded,

Judge Scott concurring; Judge Gamble not sitting.