People v. Rix ( 1858 )

Christiancy J.:

The view we have taken of the second question reserved for our opinion, renders it unnecessary to determine the first.

Whether Balch being the junior commissioner of the county, had or had not power to make the order for the dissolution of the attachment, we are all of opinion the sheriff can not be made liable, under the circumstances presented by the case, for obeying the order — he having acted in good faith.

It is true, as a general rule, that a sheriff or other ministerial officer can not justify under process issued by a court or officer having no jurisdiction of the subject-matter. But this rule, we think, is based upon the ground that every man is bound to know the law; and the subject-matter in reference to which the question of jurisdiction arises, can generally be decided by reference to the statute or other public law, itself, without an inquiry into matters of fact which the law does not disclose.

Thus, if a justice of the peace issued a writ of restitution in forcible entry, or of possession in ejectment, or a warrant of commitment to the state prison on a conviction for murder, such writ or warrant would be no protection to the officer, however regular upon its face, because he is presumed to know, and can easily ascertain from the law itself, that the justice has no jurisdiction of the subject-matter, viz., the forcible entry, the ejectment, or the conviction for murder. No fact beyond that which the law itself discloses is necessary to decide the question) because no fact extrinsic the law could give the jurisdiction.

Thus far the principle is clear; and, in ordinary cases, as just as it is clear. But it may well be doubted (though upon this we give no opinion) whether even this principle has not sometimes been carried too far. Thus, it not unfrequently happens when the question is purely one of law, that it is a question of the greatest doubt and difficulty, upon which the ablest lawyers and the highest courts may differ — where, in fact, the law can not be known until decided by the court of last resort. In such cases, the presumption that the ministerial officer knows the law is an extremely violent one; and the rule which requires him to decide at once, and at his own peril, compelling him to respond in ruinous damages, whichever way he may decide, if his decision happen to be wrong, is certainly a rule of great harshness, and difficult to be reconciled with any principle of justice or common sense. And it may well be suggested whether it would not be more consonant to sound public policy, in such cases, to hold the officer justified in obeying the process when acting in good faith, and let the party injured seek his remedy against the party procuring the process, and (in proper cases) the officer issuing it. The case before us, if the facts were all well known to the officer, would still present the question as one of great difficulty; and whatever may be the presumption of law, neither the sheriff nor the learned counsel in this case, with a full knowledge of the facts, could, until judicially determined, have decided with any certainty whether this commissioner had or had not jurisdiction. But the present case does not fall within the rule above discussed; for though the law presumes the officer to know the law, it makes no such presumption in ordinary cases as to matters of fact., of which the laxo gives no information, and which are not disclosed by the process or order which he is commanded to obey. And where the jurisdiction of the subject-matter depends upon matter of fact, the existence or non-existence of which can not be determined from the law, and which is not of public notoriety, the ministerial officer ought not, we think, to be bound to ascertain it at his peril, unless the law has clearly given him the right to demand the information, and to determine the fact.

The statute under which the commissioner in this case' purported to act (2 Gomp. L. pp. 1215 and 1216) gave the circuit court commissioner of the county jurisdiction of the proceeding for the dissolution of the attachment, and to make the order in question. There were two circuit court commissioners; and, giving to the law of 1850 the construction claimed by the plaintiffs; viz., that only the commissioner holding the older commission could take jurisdiction of the matter in question; still the law did not determine which commissioner held the elder commission. Nor did it provide a period when the official term of either should commence, or what should be the date of the respective commissions. The governor had the power to appoint; and though the length of the official term was fixed at four years from the time of appointment, the date of the commissions might vary a day, a month, or a year; or they might be of the same date. It was not, therefore, a fact of public notoriety. No provision was made for rendering it public, nor by which it could be ascertained in the county clerk’s, or any other county, office. No power is'given to the sheriff to demand inspection of the commissions in the hands of the commissioners, nor to require it from the secretary of state. "We think, therefore, as the law has given the sheriff no jurisdiction to determine the question of fact, no power to demand the authentic information, he can not be bound to determine the fact at his peril; while, if none but the elder commissioner could act, the sheriff could not have refused obedience to the order in this case, except at the peril of being able to show that this commissioner held the junior commission.

Balch was a circuit court commissioner de facto and de jure. He had taken jurisdiction of these proceedings colore officii; and as to this, the sheriff might well recognize him as the commissioner de facto, at least. He was an officer of the court from which the attachment issued; and though his right, so far as regarded his own protection, might depend upon the prior date of his commission, we can not think this was a fact of which the sheriff was bound to take notice, or which he could assume to decide except at his own peril. Knowing him to be a~ commissioner, and an officer of the court, he had a right to rely upon the presumption that he had not violated his official duty in this proceeding.

We can see little better reason for holding the sheriff bound to know this fact or to determine it, than to know or determine the question, whether the judge of the circuit court, whose process he executes, was duly elected or qualified, or whether the certificate of his election is in due form.

As a question of public policy, it might be mischievous in the extreme to allow, and much more to require, a ministerial officer to sit in judgment upon the rights of judicial officers de facto, whose process or orders he is called upon to obey, and to determine the validity of the title by which they assume to act. The law has provided other tribunals for the determination of such questions. It is therefore very questionable whether the sheriff would have been justified in disobeying the order in this case, if the commissions of the respective commissioners had been laid before him. But upon this we give no opinion, as it is not involved in the case. It does not appear that the sheriff had ever seen, or knew the date of, either commission, nor even that he had received any notice who held the older commission.

It would be difficult, if not impossible, to reconcile all the various decisions that have been made upon this class of questions. Many of them have been carefully examined. But we have thought it best to place the decision in this cause upon a plain and intelligible principle, which, we think, lies at the basis, and constitutes the reason, of most of them, and perhaps all of them which rest upon any sound principle.

As the view we have taken of the second point exonerates the sheriff and his bail from all liability upon the facts as presented in the case, the third question upon which our opinion is asked becomes entirely abstract, and, like the first, unnecessary to the decision of the case: we therefore express no opinion upon it.

It must' be certified to the Circuit Court for the county of Kalamazoo, as the opinion of this court, that the sheriff is not liable for having obeyed the order dissolving the attachment, and that he was protected by that order in delivering the property attached to the defendant.

Martin Ch. J. and Manning J. concurred. Campbell J. did not sit in this case, having been counsel for one of the parties.