State ex rel. McLaurin v. McDaniel

Whitfield, C. J., delivered the opinion of the court. On the authority of Bigham v. State, 59 Miss., 529, and Wilcox v. Williamson, 61 Miss., 310, the appellee, McDaniel, must be held liable. In Grove v. Van Duyn, given at length in 42 Am. Rep., 648-650, Chief Justice Beasley, speaking for the court, while declaring that “the jurisdictional test as the measure of judicial responsibility should be rejected,” yet said [4] that the magistrate would be liable on another ground in a case like this, saying (page 650): “It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offenses, for the conclusive reply would be that the particular case was not, by any form of proceeding, put under his authority. ’ ’ What the magistrate does colore officii, his sureties are liable for. They are not liable, by the terms of their bond, for independent wrongs committed by the magistrate acting wholly as an individual and' not at all colore officii. The acts of this magistrate here in question were done colore officii, and not at all as an individual. He was not acting, nor purporting to act, in any mere individual capacity, as any private citizen would be. He expressly claimed to be acting as mayor, in the exercise of official authority as such, and it is plain that this is the true character of his acts. His action was in excess of his jurisdiction;, or, at all events, he had no authority to try that particular case, except in the manner required by law; but, nevertheless, what he did was done colore officii, and his sureties are liable. We approve the reasoning in the cases of Clancy v. Kenworthy, 74 Iowa, 740, s.c. 35 N. W., 427, and Turner v. Sisson, 137 Mass., 191, cited in the note to McLendon v. State (Tenn.), 21 L. R. A., 738, s.c., 22 S. W., 200. Says the court in 74 Iowa, at page 743 (35 N. W., at page 428): “But it is insisted that, as the constable is shown to have had no lawful authority to arrest plaintiff, his act was, therefore, not done in the line of his duty. In truth .his act was in the line (direction) of ■ official duty., but was illegal because it was in excess of his duty. In the discharge of official functions he violated his duty and oppressed the plaintiff. This is all there is of it. If, in exercising the functions of his office, defendant is not liable for acts because they are illegal or forbidden by law, and, for that reason, are trespasses or wrongs, he cannot be held liable on the bond at all, for the reason that all violations of duty and acts of oppression result in trespasses or [5] wrongs. For lawful acts in the discharge of his duty he, of course; is not liable. It follows that, if defendant’s position be sound, no action can be maintained upon the bond in any case. ” . i Say the court in 137 Mass., 191, 192: “ By an official act, is not meant a lawful act of the officer in the service of process. If so, the sureties would never be responsible. It means any act done by the officer in his official capacity, under color and by virtue of his office. ’ ’ See, also, State v. Flinn, 23 Am. Dec., 380, and especially Brown v. Weaver, 76 Miss., 7, 23 South., 388, as reported in 71 Am. St. Rep., 512, and the note thereto. We think the sureties are liable. Mtírfree, Sher., sec. 60. Judgment is reversed, demurrer overruled and cause remanded.