Watts v. Gerking | Cases | Westlaw

This is an action against five defendants for malicious prosecution in instituting criminal proceedings against the plaintiff, causing him to be arrested, his home to be searched, and property in his possession to be taken from him, maliciously and without probable cause, upon a charge which, it is alleged, the defendants at the time knew to be false.

The plaintiff is a reputable attorney at law, regularly admitted to practice, and resided with his wife at his home at Athena, where he had in his possession a quantity of intoxicating liquor which the complaint alleges he had acquired prior to the enactment of the prohibition laws, and, if thus acquired, the possession thereof was lawful under section 2224-4, Or. Laws. In effect the complaint charges that the defendants, knowing that the plaintiff's possession of such liquor was lawful, in order to injure and disgrace the plaintiff, entered into an unlawful agreement and conspiracy to charge him with being unlawfully in possession *644 of said liquor, and with maintaining a nuisance at his home by keeping the liquor there for the purpose of barter and sale. The complaint further alleges, in substance, that the defendants falsely, maliciously, and without probable cause, and knowing that the charge was false, filed a criminal information in the justice's court, and caused the plaintiff to be arrested, his home to be searched, the liquor lawfully in his possession to be taken, and a notice, stating that proceedings to confiscate the same had been instituted, to be posted and publicly displayed on his house, and attempted to suborn perjury against him upon the trial; that on the trial of such charge in the justice's court, the plaintiff was found to be not guilty, and that an appeal was taken by the defendants to the circuit court for Umatilla county, where, upon a trial had in that court, the plaintiff was again found to be not guilty, and was discharged; that the action has been finally **319 terminated in favor of the plaintiff, and that said proceedings were instituted by the defendants maliciously, and without probable cause and with full knowledge upon the part of the defendants that the charge was wholly false.

The respondent herein, R. I. Keator, is the district attorney for Umatilla county. The circuit court sustained his separate demurrer to the complaint, and, as to him, dismissed the action on the ground that the complaint did not state facts sufficient to constitute a cause of action against him. Although there was no allegation in the complaint that the defendant Keator, at the time of the commission of the acts complained of, was district attorney for Umatilla county, yet the court, taking judicial notice of that fact, held that he was not accountable to the plaintiff in an action for damages for acts done by him in his *645 official capacity, and upon that ground sustained the demurrer as to him, and overruled a demurrer upon the same ground as to the other defendants.

Under these allegations, the acts charged against Keator could have been committed as well in his individual as in his official capacity, and for this reason, if for none other, the legal sufficiency of this complaint ought not to have been determined by consideration of a fact not alleged or in any way referred to, even though it might be that, upon the trial proof of the fact, if alleged, might be unnecessary because the court might be authorized to take judicial notice of it. But, as the plaintiff, upon the argument, conceded that, in the commission of the acts charged in the complaint, the defendant Keator was acting in his official capacity, and consented to a consideration of the complaint for the purposes of the demurrer as if it contained an allegation to that effect, and as we are of the opinion that the demurrer ought to have been overruled, even if such fact had been alleged, we shall, as did the circuit court, consider the complaint as if it actually contained a specific allegation of that fact.

*647 Judges of courts of limited and inferior jurisdiction are exempt from liability for their judicial acts, while acting within their jurisdiction and not otherwise; while a judge of a court of superior or general jurisdiction is not liable to a civil action for his judicial acts, even where such acts are in excess of his jurisdiction and are alleged to have been done maliciously or corruptly. But a judge of a court of superior or general jurisdiction is liable for his judicial acts, if done corruptly or maliciously, where there is a clear absence of all jurisdiction over the subject-matter and the want of jurisdiction is known to the judge. Bradley v. Fisher, 13 Wall. 335, 351, 20 L. Ed. 646.

In Griffith v. Slinkard, 146 Ind. 117, 44 N. E. 1001, the court held that a prosecuting attorney is not liable in an action for malicious prosecution for participation by him in procuring an indictment maliciously and without probable cause. Based upon this decision the rule has been stated that:

**320 Following the rule announced in Griffith v. Slinkard, supra, it is held in Smith v. Parman, 101 Kan. 115, 165 Pac. 663, L. R. A. 1917F, 698, that a city attorney, while engaged in the prosecution of a person charged with the violation of an ordinance, is not liable in damages to the person injured, for instituting a prosecution under an ordinance, maliciously and without probable cause.

The case of Parker v. Huntington, 2 Gray (Mass.) 124, is relied upon as an authority sustaining the rule above stated, but an examination of the opinion in *648 that case will disclose that it does not announce any such doctrine. It happened in that case that one of the defendants in the action, which was an action for malicious prosecution, had acted in the capacity of district attorney in the prosecution of the plaintiff, but the right of the plaintiff to maintain the action was not denied upon that ground. His right to maintain the action was denied upon the sole ground that he had been convicted of the offense with which he had been charged, following which the judgment of conviction had been set aside and a nolle prosequi entered, and therefore he was not in a position to show “a sufficient and proper ending of the indictment against him, and a want of probable cause.” This ruling was based upon former decisions of that court, where it was held that an action for malicious prosecution by indictment, upon a showing that the prosecution had been determined by a nolle prosequi, could not be maintained. The only inference to be drawn from the decision is that, if the plaintiff had been in position to show a proper termination of the criminal action, the action could have been maintained, notwithstanding that the defendant had acted in the criminal prosecution as district attorney.

In Schneider v. Shepherd, 192 Mich. 82, 158 N. W. 182, L. R. A. 1916F, 399, the prosecuting officer, who, without any attempt to verify the facts, acted upon a report submitted by a private investigator employed by him, naming merely the street and number of the premises, but not the owner, secured the search of a residence occupied by a reputable citizen for a long period of years, and his arrest without warrant upon a charge of which he was innocent, was held liable for false imprisonment. The trial court in that case had submitted to the jury the question of whether *649 there was probable cause for making the arrest of plaintiff and procuring a search of his house. In affirming the judgment of the lower court against the district attorney, the court said:

In Leong Yau v. Carden, 23 Hawaii, 362, 369, the court said:

In Skeffington v. Eylward, 97 Minn. 244, 105 N. W. 638, 114 Am. St. Rep. 711, an action for malicious prosecution, a judgment in favor of a party who had been prosecuted in a criminal action, was given against the chairman of the board of town supervisors, whose official duty it was to prosecute violators of a statute relating to the obstruction **321 of public highways. In sustaining the judgment, the court said:

In Carpenter v. Sibley, 153 Cal. 215, 94 Pac. 879, 15 L. R. A. (N. S.) 1143, 126 Am. St. Rep. 77, 15 Ann. Cas. 484, an action for malicious prosecution, an appeal was had from a judgment rendered against a district attorney, his assistant, and others. The judgment was upheld by the Supreme Court of California as against all of the defendants. The opinion shows that the question of whether an action for malicious prosecution could be maintained against a prosecuting officer was neither raised nor discussed, but the judgment was affirmed notwithstanding that it had been given against a district attorney and his assistant.

Under this statute, when a district attorney has information that a crime has been committed within his district, the law imposes upon him the duty to institute proceedings for the arrest and conviction of any person charged with, or reasonably suspected of, having committed the offense. While acting in conformity to the directions of the statute and in the cases provided for by the statute, he is not liable to respond in damages to any person for any injury which may be caused by the performance of his official duty, even if done maliciously, wantonly or corruptly. In such case his motives are wholly immaterial. But to afford this immunity to a district attorney he must conform to the statute and act only in cases provided for by the statute. There must be an offense committed, or at least he must reasonably believe that one has been committed, before he is authorized to cause the arrest of any one. Unless the district attorney has reason to believe, or has at least some ground for believing, that an offense has been committed within his district, it is not within the line of his duty or the scope of his authority to cause the arrest of any one. Under the allegations of this complaint the defendant Keator, knowing that the plaintiff had committed no offense and that his possession of the liquor was lawful under the statute, caused criminal proceedings to be instituted against the plaintiff and caused him to be arrested upon a charge for an offense which he, as district attorney, knew had not been committed. Such acts upon the part of the district attorney constituted an abuse of his office, an unwarranted usurpation of power, and were wholly unauthorized and illegal; for damages arising therefrom *653 he is liable therefor in a civil action. Clearly the district attorney can enjoy no higher immunity than that given to a judge of a court of superior or general jurisdiction when acting wholly without authority of law upon a subject-matter over which he knows he has no jurisdiction.

As this is a government of limited and defined powers, a government of laws and not of men, the powers, authority, and jurisdiction of an officer are limited and restricted to those conferred upon him by law. The statute, in terms, confers upon prosecuting attorneys the power, and makes it their duty, when informed that a public offense has been committed within their district, to institute proceedings for the arrest and trial of persons accused or reasonably suspected of having committed the offense. Of necessity it follows that an officer who, in conformity to law, performs an official duty imposed upon him by statute, cannot be held liable in a civil action for damages resulting therefrom; but, when, in a case not provided for by statute, he performs, without lawful authority, an illegal act injurious to the rights of some other person, he is liable to the injured party for the damages resulting from the unauthorized and illegal act.

As the statute defining the powers and prescribing the duties of district attorneys is for the protection of the public, it should be liberally construed to effectuate the purpose of its enactment, and wide latitude should be given to the exercise of discretion under it. But from this it does not follow that a district attorney is not to be held accountable in a civil action for damages at the suit of an injured party for maliciously causing the arrest of such party for a pretended offense, which, at the time of the arrest, he knew had not been committed at all; for in such case *654 the district attorney is not **322 acting in the line of his duty or within the scope of his authority.

Reversed and remanded.