| N.C. | Jun 5, 1876
Any officer in the State who is required, in entering upon his office, to take an oath of office, who shall willfully omit, neglect or refuse to discharge any of the duties of his office, shall be deemed guilty of a misdemeanor. Bat. Rev. ch. 32, sec. 107. *213
It may be that "officer in the State" may mean State officers, as distinguished from town officers or other officers; but it is not necessary to decide it in this case, because, taking the defendant to be within the statute, still we think he is not guilty.
The act of 21 December, 1870, under which the defendant was acting as registrar, provides: "That the right of any person to register shall be subject to challenge, and that the registrar shall determine whether the person challenged is a duly qualified voter at any time prior to the day of election, and that all challenges made on the day of election shall be determined by the judges of the election." Now, this makes the defendant registrar a judge. He is to "determine," decide, adjudge who is entitled to register up to the day of election, and then, on that day, the "judges of the election" pass upon the challenges. He was just as much a judge to pass upon challenges before the day of election as the judges of election were upon that day. Indeed, he was just as much a judge as to the matter he had in hand as the members of this court are judges in the matters before us.
Now, it is so well settled that there is nothing to the contrary (284) that an officer who has to exercise his judgment or discretion is not liable criminally for any error which he commits, provided he acts honestly.
The statute under which the defendant was acting forbids him to register any one who has not paid his taxes. It is, therefore, only by declaring that statute unconstitutional that he can be declared to have erred at all; but it is not usual and can scarcely be safe for inferior officers to declare solemn acts of the Legislature unconstitutional until the higher courts have so declared them. Certainly nothing is to be inferred against such officer for assuming that a statute is valid. And, in our case, the jury finds that the defendant acted from "no malicious or improper motive."
It may be that a ministerial officer must often act at his peril and be responsible, at least, although he act under a statute, if it be void. And any officer, judicial or ministerial, who acts corruptly is responsible, both civilly and criminally, whether he acts under the law or without law.
Here the defendant was a judicial officer, and honestly determined the law, as he understood it, and indeed as it was plainly written, and, therefore, although he committed an error, he is not criminally liable.
PER CURIAM. No error.
Cited: S. v. Heaton,
(285)