The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1889-01-08
DECISION on A DEMURRER
1t Gives the Benefit of One Point to
Hawkins in His Damage Suits.
The Superior Court Holds That the United
States Marshal is Not Liable Under Certain
Conditions for Acts of Special Deputies.

nlod demurrer TO all the complaints In the
Marion Superior Court. The demurrer set
up that the suits should be dismissed for
three reasons, namely: That the State
courts had no jurisdiction; that the marshal
was not liable for the acts of his special
election deputies, and that the complaints
did not set forth facts sufficient to justify a
cause of action. These questions were ar
gued before the full bench of the Superior
Court, and taken under advisement until
yesterday, when written opinion was sub
mitted, sustaining the second paragraph to
the demurrer.
The opinion was written by Judge Howe,
and concurred in by Judges Walker and
Taylor. 1t was very lengthy, covering
twenty sheets of closely-written legal
cap paper. The Judge first took
up the question of jurisdiction. He said
there could be no doubt of his jurisdiction
III the action were not upon the marshaPs
bond, and had been brought against him
individually. He held that where a fed
eral officer, though protesting to act as
such, has been guilty of some violation of
Improperly or personalrights of the plaint-
if, and relief is sought against him indi-
viduallyin an action of trespass, or the
like, it is well settled that he may be sued
In State court, and that he cannot excuse
himself from liability upon the ground that
he is federal officer. He said that upon
principle he did not see any valid reason
against the exercise of concurrent juris-
diction by the State courts where the suit
was upon a federal officehOlders bond.
Assuming that the court had jurisdiction
In the causes, the next question was
whether the complaint stated facts sui,
ficient to constitute cause of action. and
this, the Judge maintained, involved the
liability of the marshal and his sureties
upon his bond for the official misconduct of
himself and deputies, That an action may
be maintained upon his bond against him.
self and sureties for wrongs done by him or
his general deputies under color of his
office seems to be well settled.
Taking up the second paragraph of the
demurrer, as to whether marshal was
liable for the acts of his special deputies,
he said: THE more important question,
however, is as to the liability of the mar
shall for the wrongful acts of the persons
named In the act of Congress under which
they were appointed as special deputy
marshals.' There is a well-settled distinc-
ton recognized, both in actions of contract
and of tort, between the liability of pub
lie officer and a mere private individual.
One reason why public officer is not, as
a general rule, responsible for the acts of
his subordlnates, as principal is for the
acts OF his agent or master for the acts OF
his servant is that both the officer and his
for the government. The officer who eXer-
cises good faith and judgment in the
selection of his subordinates ought not,
therefore, to be held liable for the acts
of workman employed by him for their
common master That the government,
the real master or principal, may not, like
other masters or principals be liable to an
action, cannot of itself make the officer
ha nf al N GA
tons, as said by the Supreme Court of the
United States, as imposed by law, is that
the officer shall perform the duties of his
office honestly, faithfully and to the best
of his ability. This is the substance of all
official oaths. In ordinary cases, to expect
more than this would deter upright and
responsible men from taking Office. This
is substantially the rule by which the COM
mon law measures the responsibility of
those whose official duties require them to
have the custody of property, public or
private. Ii in any case more stringent
obligation is desirable, it must need be pre-
scribed by statute.
THE law in relation to the liability of
public officers for the negligence or wrong
full acts of their subOrdinates is stated
by DR.. Wharton as follows: Public officers
are not generally liable for negligence of
subordinates. To this rule there are eX-
ceptions, in cases such as those of sheriffs
and constables, in which the policy of the
law Is to make the superior officer response
u
his inferior. So collector is personally
liable for illegal acts of deputy in exact
ing compensation not authorized by law.
But where this policy does not apply SUI
perior public officer. if liable at all for the
negligence of an inferior officer. who Is not
personal servant, is liable i'll principle
only for culpable negligence. Thus a SUI
perior postmaster is held not to be liable
for the negli gence of deputy. (Wharton's
Agency 555.p After citing number of
authorities the Judge continued: The gen.
eral rule by which to determinate whether
an officer is or is not responsible for the act
of his subordinate is thus stated by the
editors of the American leading eases:
With regard to the responsibility of pub
lie officer for the misconduct or negligence
of those employed by or under him the dis
tinction apparently turns upon the question
whether the persons employed are his
servants, appointed voluntarily and pri-
vately, and paid by him and responsible to
him, or whether they are his official subor-
dinates, nominated, perhaps, by him, but
officers of the government; in other words,
the situation of the inferior is a public
Office in q, private service. In the former
case the official superior is not liable for the
interiors acts; in the latter he is
All the authorities agree that the mere
fact that the officer may have the power to
appoint OF remove his subOrdinates does not
render him responsible for their wrongful
acts
Applying the principle of the authori-
tlCc CAtCt W LILO case az DeI ib SCCiiiS W lIO
to be clear that it was. not intended
that the marshal should be liable for the
acts OF the special deputies He
has no choice whether he Will ap-
point them or not, but must do
so upon the application of any two citizens
IN any city having population of 10000.
The application may be made the day be-
fore the election, thus allowing the mar
shall very brief time in which to satisfy
hfmsen OF the competency OF the special
deputies, and thereby compelling him 10
rely largely and probably in most eases al
together, upon the recommendations of
others as to their fitness. The special dep
utleS are IN no wise responsible to the
marshal. They are not sworn to discharge
any duty imposed upon the marshal person.
ally, but are sworn TO perform the duties
which the law, not the marshal, imposes up
on them. The marshal in the discharge of
his duties In appointing deputies acts who'll
~ gratuituously. He derives no patronage,
fees, or benefit, pecuniary or otherwise for
any election service performed by such
deputies, nor for any other acts OF
service performed by them, because
they have no authority, nor can they be re-
quired to perform any acts services ex-
cept such as relate TO elections, and are
specified in the act of Congress. In the
very nature of things, it is impossible for
the marshal TO superintend the special dep
aties scattered over different parts of the
State. Finally. such special deputies are
paid, not by the marshal, but by the United
States government. Here, then, are the
conditions which should exempt the mar
shall from liability for the acts of the spe-