... 1144. KILBOURN v. THOMPSON. (1880. 103 U. S. 168, 204; action against members of Congress for imprisonment of the plaintiff by contempt-process.) MILLER, J.: ... The case of Coffin v. Coffin is, perhaps, the most authoritative case in this country on the construction of the provision in regard to freedom It would be a narrow view of the constituof debate in legislative bodies. tional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body [Congress] by its committees, to resolutions offered (which, though in writing, must be reproduced in speech), and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it. . . . We think the plea set up by those of the defendants who were members of the House is a good defence. 1145. ROYAL Aquarium, etc. SOCIETY v. PARKINSON. (1892. L. R. (1892) 1 Q. B. 431, 442.) Lord ESHER, M. R. (referring to a charge of immorality made by a member of the County Council in a debate on licensing a place of amusement). . . . It was argued, in the first place, on behalf of the defendant, that he was exercising a judicial function when he spoke the words complained of, and therefore was entitled to absolute immunity in respect of anything he said. It is true that, in respect of statements made in the course of proceedings before a court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of courts of justice; but . . . this doctrine has never been extended further than to courts of justice and tribunals acting in a manner similar to that in which such courts act. Then can it be said that a meeting of the county council, when engaged in considering applications for licenses for music and dancing, is such a tribunal? It is difficult to say who are to be considered as judges acting judicially in such a case. The manner in which the business of such a meeting is conducted does not appear to present any analogy to a judicial inquiry. Again, there is another consideration. It is argued for the plaintiffs that this function of granting licenses, which has been transferred from the justices to the county council, is not judicial, but merely administrative. . . . In the case of duties properly administrative, such as that of granting licenses, their action was consultative for the purpose of administration, and not judicial. When such duties are transferred to the county council, what they do in respect of them is likewise consultative for the purpose of performing an administrative duty; it is not judicial. That consideration also appears to me to show clearly that the case does not come within the doctrine of absolute immunity applicable to tribunals similar to courts of justice. Then comes the question whether this was a privileged occasion. Where, as in this case, a body of persons are engaged in the performance of the duty imposed upon them, of deciding a matter of public administration, which interests not themselves, but the parties concerned and the public, it seems to me clear that the occasion is privileged. Therefore, though what is said amounts to a slander, it is privileged, provided the person who utters it is acting bona fide, in the sense that he is using the privileged occasion for the proper purpose and is not abusing it. It is sometimes said that he must be acting bona fide and not maliciously; but I do not think that that way of expressing the rule is quite exhaustive or correct. I think the question is whether he is using the occasion honestly or abusing it.1 1 [PROBLEMS (UNDER TOPICS 1-3 OF SUB-TITLE VIII): The defendant town by its health officer took possession of a vacant house of the plaintiff and used it as a smallpox detention hospital. Is the defendant liable? (1905, Bodewig v. Port Huron, 141 Mich. 564, 104 N. W. 769.) The defendant, a general in the army, ordered a seizure of the plaintiff's cattle for sustenance of the army while in a remote region and under urgent necessity. Was he privileged? (1870, Holmes v. Sheridan, 1 Dillon, 351.) The defendant was city health officer, and found symptoms of anthrax, a contagious disease, in the plaintiff's cattle. He ordered the quarantine of the herd and the destruction of certain hides and beef. On the trial, the jury found that cattle were not in fact infected and that the defendant had no probable cause so to believe. Was he privileged? (1904, Lowe v. Conroy, 120 Wis. 151.) The plaintiff had a stock of goods, including whiskey, in Dakota. A statute authorized military commandants to seize and forfeit any whiskey found in Indian country. The defendant, captain at Fort Seward, seized the plaintiff's whiskey, believing the locality to be Indian country, though it was not. Was he privileged? (1877, Bates v. Clark, 95 U. S. 204.) The defendants were a village board of health, and passed and published an ordinance forbidding any physician to act in a childbirth case within 30 days after treating any person having an infectious disease. The preamble recited that "a number of deaths have recently resulted from the carelessness of physicians" in such matters, meaning the plaintiff. Plea, that the defendants made the statement as an official board in good faith and without malice. Was this plea good? (1903, Mank v. Brundage, 68 Oh. St. 89.) Is a superintendent of schools liable for the erroneous but not malicious refusal of a license of teaching to a qualified person? (1885, Elmore v. Overton, 104 Ind. 548.) The plaintiff was an army officer; the defendant was chief of the pension office of the War Department. The plaintiff applied to the President for a gold medal of honor; the application was referred to the defendant for investigation and report. He reported that the plaintiff's claims to merit were fraudulently exaggerated and partly fictitious, and that the plaintiff never was an officer. The report was printed with other government documents; and on the application of one H. for information as to the plaintiff, the defendant handed him a copy of the report; saying that it showed the plaintiff to be a fraud. Was the defendant absolutely privileged? (1904, De Arnaud v. Ainsworth, 24 D. C. App. 167.) The plaintiff was an attorney who had contracts with postmasters for the collection of back-salary claims against the government. The defendant, being postmaster-general, sent a circular to the postmasters, advising them not to employ any attorney, since his services were not necessary and the claims would be paid on reference to the department books. The plaintiff was injured in his business by this circular. Was the defendant privileged? (1895, Spalding v. Vilas, 161 U. S. 483, 16 Sup. 631.) The plaintiff organized a Taxpayers' Union, and petitioned the Common Council for the use of its chamber for meetings. A resolution granting the use was passed. The defendant mayor vetoed the resolution, and in his veto message made statements defamatory of the plaintiff. Were they absolutely privileged? (1898, Trebilcock v. Anderson, 117 Mich. 39, 75 N. W. 129.) The plaintiff was superintendent of streets of Kansas City, and the defendant a member of the city council. On a question of privilege raised by another member, a discussion of the plaintiff's official conduct took place in the council. The defendant said, "I want to say something, and I want the reporters to get it. The superintendent of streets is a downright thief, and I can prove it." No motion or report was then pending in regard to the plaintiff. Was this absolutely privileged? (1894, Callahan v. Ingram, 122 Mo. 355.) The plaintiff's family were quarantined 30 days by the defendant board of health because of a supposed case of smallpox in the family. There was in fact no smallpox. The plaintiff sues for the loss of his crops caused by his forced detention. Are the defendants liable? (1906, Beeks v. Dickinson Co., 131 Ia. 244.) The plaintiff, an unmarried woman, was employed by the city of P. to nurse a woman patient in a smallpox quarantine hospital. Her bill for services being under consideration by the city council, the defendant, a member, said "there was no smallpox there, and they were running nothing but a damn whorehouse." Was this absolutely privileged? (1909, Burch v. Bernard, 107 Minn. 210.) The plaintiff was a public-school teacher, and the defendant was superintendent of schools. In a report to the school board, he stated that the plaintiff was incompetent. In an action for defamation, the judge instructed the jury that the defendant was not privileged if he had not reasonable ground for believing the statement to be true. Was this correct? (1908, Barry v. McCollom, 81 Conn. 293.) The plaintiff was a civil engineer having a waterworks contract with the town of M. A dispute arising, the town meeting appointed a committee of five, including the defendants, to investigate and report. The committee's report attributed corruption and swindling to the plaintiff in his work under the contract. It was read in the town meeting. Were the defendants absolutely privileged? (1894, Howland v. Flood, 160 Mass. 509.) The plaintiff had presented a printing bill to the city council; payment was refused; the plaintiff sued and recovered judgment. At a later meeting, the president mentioned the judgment to the council; but no motion was pending nor yet made. The defendant immediately rose and said: "That man (the plaintiff) swore to a lie at Squire Madden's office in trying this case." Was this absolutely privileged? (1898, McGaw v. Hamilton, 184 Pa. 108, 39 Atl. 4.) The defendant shot and killed one M., an infantry private in the U. S. army, while in the act of escaping from confinement on the charge of desertion. The defendant was a corporal under orders to capture M., and to shoct him if he refused to surrender. Was the defendant liable to suit for his action? (1900, Re Fair, 100 Fed. 149.) ESSAYS: Frank J. Goodnow, "Summary Abatement of Nuisances by Boards of Health." (C. L. R., 1902, II, 203.) J. W. Horsley, "Civil Remedies for Military Wrongs." (Juridical Society Papers, III, 1.) Charles H. Hopwood, "Martial Law: Responsibility of those who Execute it." (Ibid., III, 219.) Charles E. Smoyer, "The Amenability of Military Persons." (M. L. R., V, 29.) Edmund M. Parker, "Administrative Courts for the United States." (Proceedings Amer. Pol. Sci. Ass'n, 1909, p. 46.) Roscoe Pound, "Executive Justice." (A. L. R., LV, 137.) Edmund M. Parker, "Executive Judgments and Executive Legislation." (H. L. R., XX, 116.) Thos. R. Powell, "Conclusiveness of Administrative Determinations in the Federal Government." (Amer. Pol. Sci. Review, I, 583.) Thomas R. Powell, “ Administrative Exercise of the Police Power." (H. L. R., XXIV, 268, 333, 441.) Van Vechten Veeder, "Absolute Immunity in Defamation; Legislative and Executive Proceedings." (C. L. R., X, 131.) NOTES: Negligence: liability of postmaster." (C. L. R., V, 545.) "Liability of a military governor." (C. L. R., V, 395, 406.) "Speeches in Congress: circulation by member." (H. L. R., IV, 285.) "Preamble of ordinance of board of health: whether privileged." (H. H. L. R., XVII, 60.) "Obedience to orders as a justification for a soldier." (H. L. R., XXIV, 656.)] SUB-TITLE (IX): POLICIES SEEKING JUSTIFICATION IN NECESSITIES DECLARED BY FIAT OF LEGISLATURE 1147. BRITISH CAST PLATE MANUFACTURERS v. KING'S BENCH. 1792 4 T. R. 794 Ar the trial at Kingston before GOULD, J., a verdict was found for the plaintiffs with 150l. damages, subject to the opinion of this Court on the following case: The plaintiffs were possessed of the premises mentioned in the declaration under a lease for 95 years from Christmas, 1777. . . . The gateway in question, before the committing of the grievance, was of the height of 12 feet and 1 inch from the old pavement, with which the street in question had been formerly paved; and the gateway was used for the purpose of admitting wagons into the yard, loaded with plate-glass, that they might be unloaded at the door of the warehouses. The defendants, who acted as paviors under the authority of the commissioners named in an act passed in the last session, for paving, &c. Upper Ground street in the parish of Christchurch in Surrey, and certain other streets, &c., raised the pavement 2 feet and 1 inch higher than the old pavement. By sect. 13, the commissioners were empowered to cause the said street, &c. to be paved, repaired, raised, sunk, or altered, &c. . . . In order to admit carriages as heretofore, it will be necessary to take down the arch and heighten the same. The case then stated, that by these means the plaintiffs are deprived of the use of the gateway as they had it before, and wagons and other carriages are prevented passing to their warehouses, and are obliged to be unloaded in the street.. Fielding, contra, was stopped by the Court. Lord KENYON, C. J. If this action could be maintained, every turnpike Act, paving Act, and navigation Act would give rise to an infinity of actions. If the Legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power, the parties are without remedy, provided the commissioners do not exceed their jurisdiction. ... ... BULLER, J. The question here is, whether or not this action can be maintained? And I am clearly of opinion that it cannot. . . . There are many cases in which individuals sustain an injury, for which the law gives no action; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the kingdom against the king's enemies. This is one of those cases to which the maxim applies, |