
    Grant v. Lindsay.
    R County Coubts. Small Legislatures. Justices not responsible for honest mistakes as to their powers. The justices of Campbell county, under the mistaken idea that they had the power to do so, contracted for the construction of a second class road, agreeing to pay for the work $650.. The road was built by the contractor, accepted by the County Court,, and a special tax laid to pay for the work. The collection of this • tax was enjoined as illegal, being ultra vires. The contractor now sues- ' the justices for the value of the work, seeking to hold them personally liable. This can not be done. The powers conferred by law upon - _ the County Courts in regard to roads, and many other subjects, whether called police or municipal, are, in their nature, legislative powers. Justices, therefore, honestly acting upon a mistaken view of the extent of their powers in the premises, do not make themselves personally liable.
    2. Same. Same. Dictum of Judge Turley in 8 Hum., 342. The dictum of Judge Turley in Franklin and Columbia Turnpike Co. V. County Court of Maury, 8 Hum., 342, taken in connection with the allegations in that case, is not in conflict with the holding of this case. Judge Tur-ley intimated that the justices in that case might be held personally responsible not for a mistaken but malicious departure from their authority. The remark in this view may be correct.
    FROM CAMPBELL.
    Appeal in error from Circuit Court of Campbell,. May Term, 1872. J. H. Randolph, J.
    J. R. Cocke, for Grant.
    The principal question in this case is whether, upon the admitted facts, the defendants below are liable to-the plaintiff. These facts are, that the defendants, all of whom were justices of the peace, and consequently members of the County Court, voted in favor of constructing a road from the court house in Jacksboro to the house of G. W. Sharp, a distance of about seven miles across the Cumberland Mountains, and in favor of appropriating $650 to that purpose. A contract was made by the commissioners appointed, with the plaintiff, who made the road, for which, according to the terms of the contract, he was entitled to receive the sum of $634. And the County Court assessed a tax for the purpose of raising the funds to pay him, whereupon a bill was filed to enjoin its collection for the reason that the court had no power to impose a tax for such purpose. This bill was sustained by this court in the case of Hunter v. the Justices of Campbell county, 7 Col., 49 After this decision was made this .action was brought against the justices individually, to hold them' personally responsible for the cost of the road.
    The question of their liability to the plaintiff below was fairly raised by the evidence, the written instructions submitted by the counsel for the defendants, and the charge of the court. We do not seek to evade a final determination of this question by relying upon errors of minor importance committed by his Honor, "the presiding Judge.
    The only witness introduced by the plaintiff was' himself, and he stated with commendable frankness, “ that at the time I (he) made the contract I (he) expected to be paid by the tax to be levied and collected, and not by the defendants personally, and did not think of holding them personally responsible until after the completion of the work.” He admitted in open court that the credit was originally given to the-county and not to the justices individually, and that he did not expect to hold the justices individually liable when he first made the contract, nor until after the filing of the bill in Chancery at Jacksboro by John H. Hunter against the County Court; that he would not have taken the contract at all if he had expected to get his pay from the justices individually.
    What is the law applicable to this state of facts? It is clear that there was no express contract by the defendants, the justices of the ' County Court, to pay the plaintiff for the work done by him in making the road. It is not even pretended that there was .such express contract. Such a contract rests upon the understanding of the parties, which the facts necessarily infer, as if A. should do work for B., or should take up goods from B., the law would imply that the former had contracted, in the one case, to pay as much as the work was worth, dr in the second case, the reasonable value of the goods. • 1 BouviePs Law Dictionary, 306; 3 Black's Com., 443; Com. Dig., action upon the ease upon assumpsit, A. 1.
    But if it appear affirmatively, as it does in this case by the sworn admission of the plaintiff, that there was no such understanding, that it did not even enter into his mind to look to the defendants for payment,, it would be shocking to the common reason of men to infer an agreement against the fact.
    These counts of the declaration, therefore, which proceed upon the idea of a contract must fail, even if the transaction had been between private citizens. But where the transaction is between a public agent and a private person, the position is immeasurably stronger. The assumption in the argument that the same rules apply to public- and private agents, is so far wrong that - it is difficult to understand how it could be made at all. Story, in his treatise on the Law of Agency (said by the editor of the American Law Review to be the best of all his works), says in sec. 302 that “a very different rule, in general, prevails in regard to public agents, for in the ordinary course of things an agent, contracting in behalf of the government, or of the public, is not personally bound by such contract, even though he would be by the terms of the contract if it were an agency of a private nature.” For which he refers for support to a great multitude of the most respectable authorities, and among others to JEnloe v. Hall, 1 Hum., 303. In JEnloe v. Hall, the principle was announced that an agent who contracts for the government can not be held personally liable upon the contract. And Story says the result of all the authorities is that to hold a public agent responsible there must be an express promise to pay. lb. 302, et seq. And that great jurist says.that in all cases the question is, to whom the credit was given. See secs. 288, 289, 296-299, 432, 440-449. But there is a count in the declaration against the defendants as for a tort. This tort, it is insisted, was committed by the justices in doing what they were not by law authorized to do, in other words, by exceeding their powers.. That they had ■done so, it is argued, is settled by the case in 7 Col. Admitting that they had no power to make the appropriation in this case for the purpose intended, we insist it would not follow that they have been guilty of what could, with any propriety, be called a tort, entitling .the party an action for damages.
    Ministerial officers are liable, with the proper qualifications, for abuse of their powers, or for exceeding those powers. As to judicial officers, scarcely a case could be made out in which they would be personally responsible, according to the two leading cases of Yates v. Lansing, 5 John, 282, and Cope v. Ramsa/y, 2 Heis., 197. These two cases exhaust the subject and leave nothing to say either üpon authority or principle.
    But with reference to the matter in . hand, the justices of the County Court of Campbell did not act as ministerial officers, nor as judicial officers, but they acted in the exercise of legislative power. For that the different County Courts of our State do possess legislative power can not be denied. It is true that this legislative power is very, limited as to its territorial extent, and the subjects upon which it may be exercised; but this furnishes no argument against its actual existence. In the case of the Justices of Gan-non county v. Hoodenpyle et als., 7 Hum., 145, Judge Reese, in speaking of the 28th and 29th sections of article 2 of the Constitution of 1834, which was in full force at the time the appropriation was made and the tax laid in this case, says, “ The power itself is a portion of the fiscal or taxing power of the State, delegated pursuant to the Constitution to the several counties. The agents indicated by law for this delegated local power happen to be justices of the County Court, but the power itself is not judicial, and might have been confided to any other agents, or to the people of the counties themselves. The power is given, is ' granted, to the justices, and not .the duty imposed. Within their limited sphere they have a discretion to exercise of the same character with that of the Legislature itself.”
    Now, what is it necessary to assert to maintain this case? That any one exercising legislative power who exceeds, under an honest mistake of judgment, the limits prescribed by the Constitution and the laws, is personally responsible. Suppose a member of Congress, or of the General Assembly, should vote for a law making an appropriation of the public money for a purpose not permitted by the Constitution of the State, or of the United States, would he be liable personally to a suit in behalf of the general or State government to hold him to return the amount to the treasury? And if the law had been partially executed, if contracts had been made and expense been incurred, would he be liable upon the one or for the other?’ These questions can be answered but one way. It is true that in some sense all officers, legislative, judicial and executive, are agents for the public, and are so denominated in the law books. But it is a grave mistake to suppose that the ordinary rules applicable to agencies existing between private citizens can be made to apply to them. Why even as to municipal corporations, whose powers, both as to their territorial extent and the objects to be- attained, are much more limited than those of the counties, have been held, upon mature deliberation, not to be responsible for the wrongful acts of their officers and policemen because of their being local governments. Pes-terfidd v. Viahers, 3 Col.
    H. R. Gibson, for Lindsay.
    
      First. The main question is, whether the defendants are personally liable under the facts?
    I. “ Every county is a corporation, and the justices in the County Court assembled are the representatives of the county, and authorized to act for it.” Code, sec. 402.
    The law is the charter, and “the justices in the County Court assembled” are the directors. Corporations can contract, in general, through agents only. Angelí and A.' on Corp., sec. 276. And “if the agent of a corporation make a contract beyond the limits of his authority, he is bound himself in the same manner as the agent of a natural person would-be.” A. & A.. on Corp., sec. 303. An agent “who transcends his authority, or acts without authority,” is personally liable, (a) whore he acts in good faith, believing he has such authority. 1 Parson’s Contracts, 56. Even where lie has been deceived wholly without his fault, as by a forged letter, which he could not detect, lb. (b) Where “he and the third party with whom he deals are both perfectly innocent.” lb. As where he misconstrues the instrument conferring authority on him. Story’s Agency, sec. 264, and note 3. .The case at bar grew out of a “misconstruction of the instrument conferring authority” — the statute.
    
      2. But the" defendants contend that the law in reference to public agents is different from the law of private agents. This may be true where the public agent acts within the scope of his authority, but where the public agent transcends his authority he is equally liable as a private agent. (a) As where a public ■officer, under color of his office, obtains money illegally from a third person, even though “payment was •originally made under a misconception or misconstruction of the law by both or either of the parties.” Story’s Agency, sec. 307. And so it seems that a “ misconstruction of the law by both or either of the parties ” does not exonerate the public agent, which is the case at bar.
    
      (b) And where public trustees or officers, as town or parish officers, who enter into contracts in their official capacity, and on behalf of the corporations which they represent, if they so deviate from or exceed their authority as not to bind these corporations, they are themselves liable.” 1 Parsons Contracts, 106 and note.
    (g) Whfere “ church-wardens and overseers of a parish, having taken a lease of land in their official capacity wh.ich they were not- authorized by statute to hold in the nature of a corporation, it was held to be a personal undertaking of their own, on which they were individually responsible for payment of rent.” lb. And they will be held in such cases individually responsible, even though there is a stipulation to the contrary. Story’s Ag., sec. 286a. .
    3. The defendants farther insist that an important consideration is, to whom was credit given? (a) This question can never arise where the agent has transcended his authority, and a scrutinous examination of the cases will show that whenever this question has ■ arisen the agent has always first shown a responsible principal. Suppose a U. S. officer should buy my horse, as he said, for the U. S. government; and suppose I gave credit exclusively to the government, and it afterward turned out that the officer and I' had both misconstrued his authority, 'would the fact that I gave credit exclusively to the government debar me of any redress against said officer?
    (6) If the question, “ to whom was credit given ? ” is conclusive, then an agent could never be held liable. For if credit be given to the agent, that very fact makes him the principal in so far as the other contracting party is concerned.
    -(e) In all the following cases credit was given exclusively to the principal, and yet the agent was held liable.
    (1) Where a corporation agent contracts beyond the limits of his authority. A. & A. on Corp., sec. 383.
    (2) Where the agent has been deceived by a forged letter. 1 Parsons’ Contracts, 56.
    (3) Where the agent misconstrues his authority. Story’s -Agency, sec. 264, and notes.
    (4) Where town or parish officers so deviate from their authority as not to bind their corporations. 1 Parsons’ Con., 106.
    5. Where church-wardens and overseers of a parish took a lease they were not authorized to take by statute (note g, page 106, IS.), or made a contract not-authorized by statute, wherein their personal non-liability was expressly stipulated. Story’s Agency, sec. 286a.
    From all the foregoing the general principle deducible is, that where exclusive credit is given to the principal, he must be sued if the agent had authority to __ bind him; but if the agent transcended his authority then can the agent be sued, even though credit was given exclusively to the principal.
    It is believed that no case can be found in all the books where a private or public agent, acting outside of his original authority, has been held not liable. Even where the principal dies without the knowledge of the agent, the agent will be exonerated only in case of “the existence of an original authority to make the contract.” Story’s Ag., sec. 265a.
    4. The defendants further insist that they are not personally liable because when they made the contract they were judicial officers.
    (a) It is true “judicial officers,” while acting in a “judicial” capacity, are not personally liable for errors committed honestly. Cope v. Ramsay, 2 Heis., 197, 200, 201. But the question here is, were the-defendants “judicial officers,” and acting in a “judicial” capacity, when they ordered this contract to be made, levied the tax, appointed commissioners, and received the road?
    Judicial officers, while acting within the bounds of their jurisdiction, are not responsible for errors of judgment. See authorities digested in Bouvier’s Law Die., “Judg.e;” in 7 Bouvier’s Bacon’s Abr., 825; in •3 U. S. Digest, 71, secs. 10, 19, and in Chitty’s Pleading, 78; Festerfield v. Vichers, 3 Col., 205, 211; Boyd v. Ferris, 10 Hum., 406, 410; Haggett v. Bigley, 6 Hum., 236, 238, 239, contra; Cope v. Ramsay, 2 Heis., 197, 200. But this case must be confined to cases where the right of appeal exists, as shown by 'the reasoning of the court. Besides, in Cope v. Ramsay, the justices had “original and exclusive jurisdiction.” ' And" so much of this case as is in conflict with the other cases, is a mere, dictum. “ Where there is no jurisdiction there is no judge, and the proceeding is as nothing.” 1 Wheeler’s Am. Com. Law, 506.
    In Stanley v. Sharp, 1 Heis'., 417, the reporter ■suggests that the “action of the County Court in road cases is judicial only when necessary to take private property. In the case of the Franklin and Columbia Turnpike Co. v. the County Court of Maury, 8 Hum., 342, 354, 355 (wherein the Chief Justice appeared for the complainants), this court said, “ The power to open roads ... is exercised by the ’County Courts not as a judicial but a municipal function.” And in this case Judge Turley gave it as his opinion that the action of the County Court authorizing a shun-pike would make the court liable in an action on the ease for damages.
    The power to impose taxes for county purposes “is not judicial, and might have been confined to any other agents.” Justices of Cannon County v. Hooden-pyle, 7 Hum., 145, 146. As to “ the constables, as -suggested by the Circuit' Judge” (Baxter), see argument of Meigs, Cooper, N. S. Brown and others, in the great case of the L. & N. MR. Co. v. the County Court of Davidson comity et al. 1 Sneed, 637, 651, 677. The assessment of a tax for a county purpose is “not a decree or a decision, but a municipal provision.” Cou/nty Court of Obion v. Marr, 8 Hum., 634, 638. And an order to build a court house is “ only a public order.” Carey v. Justices of Campbell county, 5 Sneed,. 515, 517. An order to levy a tax, or have a road built by contract, is not such an order as can be appealed from. Carey v.. Justices of Campbell county, 5 Sneed, '515; County Court of Obion v. Marr, 8 Hum., 634. This shows that the levying of a tax, or contracting to build a road, are not judicial acts. A judge is one who decides “litigated questions according to law.” Bouvier’s Law Die., Judge.
    From the foregoing authoritiés the necessary conclusion is, that the defendants were not “judicial officers” when doing the acts for which they are now sued.
    5. The general conclusion from the foregoing authorities is that the defendants are liable. As the defendants, as a court,, had no lawful authority to make said contract, .it is insisted by the plaintiff that the moment they transcended their authority as agents of the county, at that very moment they ceased to be officers and agents, and became private citizens and principals, as much so as if they had contracted for their dinners at the expense of the county. And in support of this general conclusion I again refer to the authorities quoted on pages -8 and 9, and especially to the following: Where town and parish were held personally liable for transcending their authority. 1 Parsons’ Contracts, 106. Where church-wardens and overseers of a parish took a lease they were not authorized to take by statute. ' lb. -106, note g. And' where they were held liable, notwithstanding their personal non-liability was expressly stipulated. Story’s-Agency, sec. 286a. Where the County Court of Maury was declared liable for opening a shun-pike, 8 Hum.,. 342. Also the following: Where the trustees of a school district apportioned a tax on those not liable-to be taxed, the trustees were held liable in trespass. 6 Wheeler’s Am. Com. Law, citing 17 Johns, 444; 5-Wend, 177; 8 Cowen, 184, When courts of limited jurisdiction exceed their powers, the proceedings are-ear am nonjudiee, and all concerned in such void proceedings are trespassers. 7 Bacon’s Abr. (Bouvier’s),. 326, citing 8 Cowen, 178; 5 Johns, 282; also 7 Conn.,, 550, where the selectmen of a town were held liable for enforcing an illegal assessment of taxes. See also 5 Bacon’s Abr. (Bouvier’s), 430, citing 17 Johns, 145;. 19 Johns, 39, and 7 Wend., 200. Also 1 IT. S. Digest (Supplement), 454, secs. 16, 17, citing 5 cases,, the last two whereof are to the effect that “if a ministerial duty is annexed to a judicial office, if the officer execute that ministerial duty wrongfully, whether by mistake or fraud, he is answerable to the party injured in a suit at law. lb., sec. 17, citing 1 Har.,, 473, and '8 Mis., 148. " Where county commissioners have public buildings erected in an unlawful manner, they render themselves individually responsible. 1 U. S. Digest, 625, secs. 40, 42, citing 3 Mis., 496, and 2 Mis., 217.
    The doctrine of personal non-liability would be most injurious to the public welfare, in case of the County Courts acting ministerially or municipally. Such doctrine would be a source of reckless, fraudulent and unlawful acts without number. Public policy demands that such a doctrine be distinctly and emphatically repudiated.
   Nicholsoít, C. J.,

delivered the opinion of the court.

The Justices of the County Court of Campbell ■county entered into a contract with Jonathan S. Lindsay to construct a second-class road from Jacksboro to the house of G. ■ W. Sharp, in Campbell county, for which they agreed to pay $650 out of the public funds of the county. Lindsay constructed the road according to contract, and the same was received by the justices, and thereupon they proceeded to assess a special tax upon property and polls to raise the funds for the payment of the work. A bill was .filed by John H. Hunter against the justices of Campbell county •contesting their power to assess and have collected the tax so assessed, and upon appeal to this court it was •determined that the County Court had no such power. Thereupon Lindsay commenced this action against Jas. H. Grant and twenty-two other justices of the County ■Court, to hold them personally responsible for the payment of the amount agreed to be paid for the road. Under the charge of ' the Circuit Judge the jury returned a verdict in favor of the plaintiff, and the defendants have appealed.

Before proceeding to consider the questions arising in this case, it is proper to remark that when the County Court was acting upon the motion to have the road made, the question was discussed whether they had the power to assess a tax for such purpose, and the plaintiff being present took part in the discussion, maintaining that the County Court possessed the power. The court come to the conclusion that they had the power, and so decided, but it does not appear that they were influenced in their decision by any thing urged in the discussion by the plaintiff; but it does appear, upon his own admission, that 'when he after-Avard made the contract to build the road he did so ■entirely upon the credit of the county, and not upon the personal responsibility of the justices of the court. It appears also that the order of the court for making the road, to be paid for by the county, was made under an honest mistake as to the power of the court, a.nd that plaintiff labored under the same mistake as to the law.

It is apparent that in making the order for building the road, and in entering into the contract with defendant for its construction, and in assessing the tax to pay for the work, the justices were acting in the capacity of agents of the county. Their liability, therefore, must depend upon the character of their ■agency. The law is that “ every county is a corporation, and the justices in the County Court assembled are. the representatives of the county, and authorized to act for it.” Code, sec. 402. Their powers, as such representatives, are defined by the statutes, and outside of these they can do no act binding on the-county. The power conferred on the County Courts are-of several distinct kinds, but sometimes so closely allied in their natures that the distinctions are not readily perceived. The laying of a county tax is characterized as a municipal power, given for the regulation of the fiscal affairs of the county. 8 Hum., 634. The power to impose taxes for county purposes is not judicial, and might have been confined to any other-agents. 7 Hum., 146. An order to build a court house is only a police order. 5 Sneed, 515. The power to open roads is exercised by the County Couris not as a judicial but a municipal function. 8 Hum., 342. But in all cases which involve the rights of individuals, on which the County Courts are authorized to adjudicate, they exercise judicial powers. The powers conferred on the County Courts are termed judicial, municipal, and- police power. The Constitution authorizes the Legislature to vest in the courts of justice such powers with regard to private and local affairs as may be .deemed expedient. Art. 11, sec. 9„ Under this provision of the Constitution the Legislature has vested in the County Courts the power defined in the Code in regard to taxation and to roads. The County Courts are thereby constituted corporations with defined powers, and with the justices thereof as representatives of the county. They can exercise that portion of the sovereignty of the State communicated to them by the Legislature and no more. In the exercise of the powers so conferred they become miniature legislatures, and the powers so exercised by them, whether they are called municipal or police, are-in fact legislative powers.

By reference to the proceedings which took place in the County Court of Campbell, which we find in the record, it appears that on motion it was ordered that $650 be appropriated to make the road as reviewed by J. S. Lindsay and others, and that commissioners be appointed to let it out. It is clear that the County Court were acting under their general powers, as laid down in the Code, to open new or-repair or change old roads, upon the reports of juries-of view, and not under sec. 1257 of the Code, which authorizes the County Courts to provide for making certain private or local improvements therein specified-But even if the order was made under this section it was correctly decided in the case of Hunter v. Justices of Campbell county, 7 Col., 55, that the authority of the County Court under this section has no reference to works of public improvement to be undertaken, made and paid for by the county.

We have seen that neither the ordering of' a road to be made or opened, or the assuming of county taxes, is a judicial act. It follows that the action, of the^ County Court, in the present case, was legislative, and that in the exercise of their legislative functions they exceeded their power under an honest mistake as to the scope and extent of those powers.

It is well settled that a judicial officer can not be held personally liable for errors of judgment, except when they are committed in the arbitrary, corrupt and malicious exercise of an assumed judicial authority,. without regard to the question of his jurisdiction. Cope v. Ramsay, 2 Heis., 200. The same reason which will exempt a judge from liability to an injured party, growing out of mistaken judgment, uninfluenced by malice or corruption, must apply with equal force •to a- legislator who has honestly mistaken his powers. Any other doctrine would be ruinous either to the judicial or legislative department. It is true that in the case of the Franklin and Columbia Turnpike Co. v. the County Court of Maury, 8 Hum., 342, Judge 'Turley, by way of censuring the conduct of the County Court in that case in ordering a road to be opened for the purpose of enabling citizens to shun a tollgate, intimated strongly that an action might be maintained for damages against the County Court, but the remark was only a dictum, and indicated clearly that the - ordering of the road was not made upon a mere mistake of their power, but from malicious motives. In that view ,we are not disposed to dissent from the ■remark. In the. present case there is no ground to ■doubt as to the entire honesty of the action of the County Court and of the defendants. It is, therefore, •one of those cases in which an innocent party must suffer injury, and in our view the law, based, upon sound principle of public policy, fixes the loss on the defendant. Having reached this conclusion, it is not necessary to notice the several questions of law discussed as to the liability of public agents, but hold that those principles of law relied on have no application to the present case.

The judgment is reversed.  