#### BAIR, Respondent, *v.*STRUCK, Appellant.

(No. 1,666.)

(Submitted October 12, 1903.

Decided November 2, 1903.)

*Animals*— Quarantining *for Inspection*— Dipping *Sheep*— State *Officers*— *Ministerial Acts*— *Quasi Judicial Acts*— *Negligence-Liability*— Evidence—Offer *of Proof.*

1. Political Code, Section 3034, provides that when the governor, by proclamation. Quarantines sheep for inspection, the deputy inspector must immediately inspect the same, under such section the proclamation was issued, providing that certain sheep imported into the state were liable to convey the disease known as “scab,” and ordering that on arrival in the state they should be quarantined and dipped by a deputy sheep inspector in some recognized and reliable dip known to be efficient in the cure, of “scab.” *Held,*that a deputy sheep inspector, in selecting and using a dip under such proclamation, acted ministerially, and not in a quasi judicial capacity, and was- therefore liable for damages arising from negligence.

2. Where, in an action against a deputy sheep inspector for negligently dipping plaintiff’s sheep in an improper dip, plaintiff claimed that by reason thereof a large number of the sheep died, and others were so affected that they were worthless for breeding, an offer of proof that other ship were dipped in a similar mixture, under like circumstances, and that no “fatal” results ensued, was properly denied.

*463. when an offer of proof as a whole contains objectionable matter, no error can be predicated upon the ruling of the court in excluding it.

*Appeal from. District Court, Yellowstone County; C. II. Loud, Judge.*

AotioN by Charles Af. Bair against Henry Struck. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Affirmed.

*Mr. James R. Qoss,*and *Messrs. Nolan & Loeb,*for Appellant.

The appellant is a publics officer charged with the performance of a public duty for the public good. By express provision of law, it was made his duty to determine the proportion and mixture of materials used for dipping purpjoses. In determining these facts he acted in a quasi-judicial capacity. The proportion of the materials and the character of the materials to be employed in the preparation, depended, upon his judgment and discretion. The instrumentalities to> be employed were determined by the exercise of his judgment.. Acting, thus, he .did not assume responsibility for negligent conduct. Such responsibility could only attach where he acted intentionally, willfully and corruptly. (Am. & Eng. Ency. of Law, 2d Ed., Yol. 23, p. 16; Shearman & Bedfield on Negligence, 5th Ed., Sec. 310; Mechem on Public Officers, Sec. 638; *Fath*v, *Koeppel,*12 Wis. 293; *Raymond*v. *Fish,*51 Conn. 80; *Downer*v. *Lent,*6 Oal. 94; *Flmore*v. *Overton,*104 Ind. 548; *Ballerina*v. *Mason,*83 Cal. 447; *Forbes*v. *Board of Health,*9 So. Hep.. 862; *Donahue*v. *Richards,*38 Ale. 379; *Burton*v. *Fulton,*49 Pa. 155; *Edwards*v. *Ferguson,*73 Alo. 686 ; *State*v. *Hastings,*37 Neb. 96.)

The court erred in excluding the evidence offered. *(Burns*v. *Sennett,*99 Cal. 363; *Standard Oil Go.*v. *Tierney,*92 Ky. 367; *Rand*v. Johns, 15 S. W. 200; *Bridger*v. *Ashville & S. R. Co.,*27 S. C. 456; *Calhins*v. *Hartford,*33 Conn. 57; *Fields*v. *Davis,*27 Kan. 400; *Dougany. Champlain T. Co.,*56 N. Y.l.)

*47*Mr. O. F. Goddard,*and *Mr. M. S. Gunn,*for Respondent.

Merely because a ministerial officer has. a discretion to exercise as to the methods and instrumentalities! to be employed in the discharge of a duty imperatively imposed upon him by law, he is not possessed of the immunity of' a judicial officer. (23 Am. & Elng\ Ehcy. of Law, 2d Ed. p. 377; Mecliem on Pub. Officers, Secs. 642, 653, 657, 664, 782; *McGord*v. *High,*24 Iowa, 336; *Hieles*v. *Dorn,*42 N. Y. 47; *Hatcher*v. *Dunn,*66 N. W. 905; *Cubit*v. *O’Dett,*51 Mich. 347; *Johnston*v. *Dist. of Columbia,*118 IT. S. 19; *Chicago*v. *Beben,*165 Ill. 371; *Aaron*v. *Broiles,*64 Texas, 316; *Olmsiead x. Dennis,*77 N. Y. 378.)

Whenever a public officer delegated to exercise the police power of the state, through negligence or an error in judgment, exceeds the authority conferred by the statute, and injures or destroys property, he is a naked trespasser and liable to the injured party. *(Pearson*v. *Zehr*(HI.), 29 N. E'. 854; *Miller*v. *Horton*(Mass.), 26 N. E. 100; *People*v. *Board of Health,*140 N. Y. 1; *Newark, etc. Co.*v. *Hunt*(N. J.), 12 Atl. 697; *Markham x. Brown*(Gu.), 92 Am. Dec. 73.)

The.evidence offered was not competent. (Greenleaf on Evidence, Sec. 52; *Medsker*v. *Pogue,*27 N. E. 432; *Atkinson*v. *Transportation Co.,*31 N. W. 164; *Branch*v. *Libbey,*57 Am. Pep. 810; *Clark*v. *Willett,*35 Cal. 534, 544; *Burgess*v. *Ore Co.*(Mass.), 42 N. E. 501; *Lucia*v. *Meech*(Vt.), 34 Atl. 695 ; *Cleveland, etc. B. Co.*v. *Wynant,*5 Am. St. Pep: 644; *Hudson v.,Chicago, etc. B. Co.,*59 Iowa, 581; *Parker*v. *Portland Pub. Co.,*69 Me. 173; *Mathews*v. *Cedar Bapids,*20 Am. St. Pep. 436.)

ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was commenced by the plaintiff, Bair, to recover damages from the defendant for injury to personal property. The complaint alleges that in August, 1899, the plaintiff was *48the owner of 150 head of Merino bucks, which had lately been imported into- this state from the state of Oregon; that the defendant was deputy sheep, inspector for Yellowstone county, and as such took the sheep from the possession of the plaintiff, and subjected them to certain quarantine regulations ; that none of the sheep were diseased; that the defendant wrongfully and negligently prepared the materials; used for dipping the sheep, and put therein carbolic acid or other poisonous matters in such quantities that 69 head of said sheep were killed, and the remaining 81 so badly injured as to render them, unfit for breeding purposes, for which they were purchased. The prayer of the complaint was for $-2,100 damages.

The defendant admitted in his answer that he was deputy sheep inspector, and that as such he dipped the sheep- in question on August 20, 1899, and denied the; other material allegations of the complaint. By way of an affirmative defense the defendant alleged that the dipping of the sheep in question was done by him under and by virtue of a quarantine proclamation issued by the governor of Montana on April 15, 1899. The cause was tried to- a jury, which returned a verdict in favor of the plaintiff for $1,055.50, and from the judgment entered for the amount of the verdict and costs, and from an order denying the defendant a new trial, these appeals are taken.

In the appellant’s brief only two- propositions are argued: (1) Does the complaint state a cause of action? And (2) did' the court err in excluding a, certain offer of proof made by the defendant and in sustaining objections, to- certain questions asked the defendant?

1. It is earnestly contended that the complaint shows on its face- that in the discharge of his- duties the defendant acted as a quasi judicial officer, and therefore is not liable for damages arising from his negligence, and would only be liable for such damages- as, were occasioned by his, willful or wanton misconduct, and no such misconduct is alleged. Such portions of the Political Code as are applicable to the facts of this case read as follows:

> *49“Sec. 3034. Whenever the governor, by proclamation, quarantines for inspection as provided in the next section any sheep brought into' Montana, the deputy inspector of the county in which such sheep may come, must immediately inspect the same, and if lie finds that they are infected with scab, or any other infectious disease, he must cause the same to- be held within a certain limit or place in¡ his said county, to be defined by him, until such disease has been eradicated, as provided in the next preceding section.

> “Sec. 3035. Whenever the governor has' reason to .believe that any disease mentioned by this'article has' become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon by proclamation, designate such localities and prohibit the importation from them of any sheep' into' this state except under such restrictions as he, after -consultation with the veterinary surgeon, may deem proper. * "

Acting under the authority of these sections, the governor of Montana, on April 15, 1899, issued a proclamation, the pertinent portions of which read as follows: “Whereas, I have reason to believe that conditions exist which render the class of sheep herein designated rams, or bucks, or stock sheep-, when brought into this state, liable to convey the disease known as 'scab/ it is hereby ordered that all rams-, or bucks, or stock sheep-, imported into the state of Montana, from any other state- or territory of the United States or foreign countries- whatsoever, must when shipped be loaded at point of starting into- properly disinfected car or cars, and shipped in such properly disinfected car or cars into this state, where, upon arrival at the state line of Montana, or the closest available point thereto where the sheep' are to- be unloaded to be driven to destination in the state, and before being turned upon the public domain or upon private premises, and all rams, bucks-, or stock sheep- driven into or through any portion of this state from any adjoining state or country, avoiding all "quarantine yards and areas, shall be held at such point or points as may be hereinafter designated and *50there, clipped under the supervision of the state vetenarian through the deputy sheep inspector' of the county into which the sheep are to remain, and said sheep shall be dipped in some recognized and reliable dip known to be efficient in the cure of scab, twice, the second dip* to occur within ten days or between ten and twelve days after the first dipping.”

Under the foregoing provisions it was made the duty of the governor to determine what sheep^ not themselves diseased, should be quarantined, and to> prescribe the quarantine regulations. In doing so he doubtless acted in a quasi judicial capacity, and, having once determined that fact, and having pre-' scribed such regulations in his proclamation, the only duty devolving upon the defendant was to carry such regulations into effect.

But it is contended that under the provisions of the governor’s proclamation — “said sheep' shall be dipped in some recognized and reliable dip* known to- be efficient in the cure of scab” —the defendant was called upon to exercise his judgment and discretion in determining the material to be used and the method of its. application, and in this he acted in a, quasi judicial capacity. -With this contention we cánnot agree. The law contemplates that only men who, by their skill and experience, are competent, shall be appointed such deputies, and invested with the duty of carrying into execution this police power of the state. The mere fact that such officers are called upon to: exercise some discretion or judgment in selecting materials to- be used and the manner of their use does not change the character of their acts from; ministerial to judicial or quasi judicial ones. E'xpterience teaches that, few, if any, ministerial officers are not called- upon to1 exercise some judgment or1 discretion in the performance of their official duties. But, if the contention of the appellant be sustained, the distinction between ministerial and quasi judicial acts is practically abolished.

As distinguishing between acts quasi judicial and acts ministerial in their character, the following 'definitions Ave think correctly state the laA?: “Quasi judicial functions are .those *51which, lie midway between, the judicial and ministerial ones. The lines separating them from: such as are thus on their two sides are necessarily indistinct; but, in general terms, when the law, in words or by implication, commits to any officer the duty of looking; into facts, and acting upon them, not in a Avav which it specifically directs, but after a discretion in its nature judicial, the function is termed quasi judicial.” (Mechem on Public Officers, Sec. 637; Bishop on Non-Contract Law, Secs. 785, 786.)

“Where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does, not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally 'quasi judicial.’ * * * 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.” (Throop on Public Officers, Secs. 533, 534.)

“A ministerial act may perhaps be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his oavia judgment upon the propriety of the act done.” (Throop on Public Officers, Sec. 537; *Flournoy v*. *City of*Jeffersonville, 17 Inch 169, 79 Am. Dec. 468; *Pennington x. Streight,*54 Ind. 376.)

In the same line, a ministerial act has also been defined as an act performed in a prescribed manner, in obedience to the laAA" or the mandate of legal authority, AvithoxAt regard to, or the exercise of, the judgment of the individual upon the propriety of the acts being done.” (Mechem on Public Officers, Sec. 657.)

An act is not necessarily taken out of the class styled “ministerial” because the officer performing it is nevertheless Arested Avitli a discretion respecting the means or the method to be employed. Such is not the judgment or discretion AA’hicli is an essential element of judicial action. *(McCord*v. *High,*24 *52Iowa, 336; *Grider*v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Mechem. on Public; Officers, Sec. 658; Ency. Law, 2d. Ed. 377.) Tbe same doctrine is announced in *Hicks*v. Dorn, 42 N. Y. 47. In this case tbe plaintiff, Hicks, was tbe owner of a canal boat, and tbe defendant was tbe superintendent of repairs in charge of one section of tbe Erie canal. Along this canal was a. dry dock, into which plaintiff’s boat had been taken for' repairs. In May, 1865, there was a violent spring rain, which raised the water in the canal to’ such an extent that in some .peaces it ran over the banks, and it became necessary toi open the waste gates connected with- the dry dock to let off the surplus' water. The captain eommienced moving the boat into the canal, and when about half way through the gates in the canal, the water having run rapidly out of that compartment of the dry dock, the boat was left resting upon the sill of the lock gates, about one-half of the boat extending, into the canal and the other half into the dry dock. In order to> render the canal navigable, it became necessary to move the boat; and several methods for the accomplishment of this purpose were open to the superintendent, one of which was cutting upi and removing the boat so¡ as to close the gates, and this method he pursued as the most expeditious for accomplishing his purpose. An action having been brought against him by the owner of the boat, among other defenses set up was that in performing, his duties the defendant had acted in a quasi judicial capacity, and could not be held liable except for wanton misconduct on his part.

In disposing of the contention the court said: “It is claimed that the defendant, in determining to¡ remove this boat, and in the removal of it, had a judicial discretion to> exercise; and hence that he is not liable, in a civil action, for the manner in which he fexercised this discretion. I am unable to. see in what sense the defendant, as to this transaction, acted judicially. The law made it his duty to put this canal in repair, and it was not left to' his discretion to' determine whether be would discharge that duty or not. The law made it an imperative duty, and, if he had neglected to perform it, he would have been liable civilly *53for damages sustained by any person from liis neglect of duty. In the discharge of this duty, thus imperatively imposed upon him by law, he acted ministerially. It is true that he was bound to- exercise his discretion as to- the methods and instrumentalities to be employed, and this is true of all ministerial officers; and yet it has never been held that, merely because ministerial officers have a discretion to exercise, that gives them the immunity of judicial officers. In this case, then, the- defendant was bound to- discharge his ministerial duties in a prudent, careful manner, without infringing upon the rights of private individuals, or unnecessarily injuring them, and for an improper discharge of his duty the law makes him liable to the individual injured.”

The question involved in this controversy is not whether the policy adopted was wise, but whether a wrong was done in the details of its execution. Wc are of the opinion- that in the discharge of his duty the defendant acted in a ministerial capacity only.

2. Upon the trial the defendant in his own behalf made the folloAving offer of proof, which, under objection, was excluded: “We desire to show by this witness that no different character of dip is used in which to dip- Merino bucks as contradistin-guished from ewes or wethers; that the dip- in question is a staple in the'market for the purposes for which it is used, and is sold in the open market for such purposes, and sold under a certain specific name and brand; that before and after the month of August, 1899, the defendant, as deputy sheep inspector, used the same character of dip> so far as he could tell by brand and selling mark, in which to- dip sheep generally; that he used this dip- so- purchased in proportions such as were used in the instance of the Bair bucks, and that in the admixture of the same with water he substantially did. in those other cases as he did in this instancé; that the dipping of those other sheep- was in the vat in which the bucks in question were dipped; and that no fatal results followed from the dipping of those sheep- in substantially the same- manner and in the dip- made in the same proportions as was used in this instance.”

*54Afterwards tbe following questions were asked tbe witness, abd objections to t-liein were sustained: “Q. Was tbe dip' tbat was used in- tbe dipping of Mr. Bair’s sbeep tbe same dip- as was used in tbe dipping of those other sheepi?” *“Q.*You may state if tbe dip' and tbe water used in the dipping of these sbeep of Hilling’s and William Clinton’s just prior to tbe dipping of tbe Bair sbeep- were in tbe same relative proportions.”

Consideration of tbe offer of proof and of tbe questions referred to may be bad together, as they are treated as one error by tbe appellant in bis brief.

The evident purpose of tbe defendant was to show tbat be bad used tbe same material, mixed with water in tbe same proportion, in dipping other sheepi as in tbe case of tbe dipping of the sheep in question, and tbat no- serio-us or damaging results bad followed. If the offer of proof bad fairly presented this-matter, it would have been competent. It is contended by tbe respondent tbat tbe offer is- fatally defective in many respects; that tbe offer must show tbat the dipping’was done under like circumstances-, with like conditions prevailing as to the character of tbe sbeep, tbe conditions o-f tbe weather, and numerous other conditions to- which it is- not now necessary to- refer.

In our judgment, the offer was fatally defective in one particular at least. Assuming tbat tbe questions asked and tbe offer made fairly show that the other sheep' were dipped! in the same material, mixed in water in the same proportion, under like- circumstances and surroundings, still the offer only seeks to- show' that in tire other instances *fatal*results- did- not follow. In submitting this- offer counsel, in effect, stated to tbe court tbat they desired to- make this proof, and none other, with reference to that- particular subject. Tbe offer is made as a- whole-. It is not for tbe court to separate tbe admissible from the nonadmis-sible, and admit the one and rej ect tbe. other. If the offer as' a whole contains objectionable matter, no error can be predicated upon the ruling of the court- in excluding it. *(Yoder*v. *Reynolds,*28 Mont. 183, 12 Pac. 417; *Farleighv. Kelley,*28 Mont. 421, 72 Pac. 756.) The defect in tbe offer becomes very appar*55ent when we consider the fact that the complaint in this instance alleges that G9 head of sheep1 were killed, and that the remaining 81 were so materially injured as to- render them unfit for breeding purposes. It may be that in the other instances no *fatal*results followed, but that such damage was caused as to render those sheep likewise of no value for the purpose for which they were kept; in other words, the offer is so pregnant with the admission that serious or damaging results may have followed that it could have no- evidentiary value; and in its exclusion we cannot say that the court committed error.

The judgment and order denying defendant a, new trial are affirmed.

*Affirmed.*