the crown for a past or threatened trespass, they could not in respect to any trespass, sue the defendants in the capacity of agents for or as respresenting the crown. On the other hand, the plaintiffs could sue any persons actually committing or threatening the trespass, even though those persons only acted on behalf of the Government. But in this case they could be sued not because, but in spite of the fact that they occupied official positions or acted as officials. In other words, to sum up shortly the result of the above by the use of convenient phraseology, the plaintiffs in respect of the matters they are now complaining of could sue any of the defendants individually for trespasses committed or threatened; but they could not sue the defendants officially or as an official body. I therefore order the present action dismissed.

It will be seen that the decision in this case covers the whole ground; it provides for the case where the administration is sued as an entity; it provides also for the case where the administration is brought into the courts as a collection of individuals. Suit may not be brought against an official body as an official body, since that is in last analysis a suit against the state; but suit may well enough be brought against the members of the body upon the basis of a single action against simple individuals. In the practical business of law it is worth note that an administrative body should never be made a defendant in its official capacity; the suit should always be brought against the persons composing the board as private parties. The theory that the administration cannot do a wrong act does not go so far in the protection of the administration as to the individuals composing the administration; no immunity can be invoked by them.

This same distinction may be taken in the case of a single public officer as well; he also may be conceived of in one view as an official, in another view as an individual. Gidley v. Palmerston, 3 Brod. & Bing. 275 (1835), is often cited to this effect. One Holland was a retired clerk upon a retiring allowance of £200 a year; he had become embarrassed in his pecuniary relations; and the Paymaster-General had suspended a part of his allowance to accrue as a fund for liquidating the claims of certain half-pay officers, widows and other persons upon the compassionate list, for whom Holland had acted as agent. The executor of Holland now sued Lord Palmerston, Paymaster-General, in assumpsit, alleging that Parliament had placed sufficient funds at his disposal to pay the allowance, whereupon it became his duty to pay it over in each year, wherefore he might be said to have promised to pay it over.

DALLAS, Chief Justice, took this difference: On these facts the question arises: whether, upon all or any of the counts in the declaration, the present action can be maintained; and we think that it cannot be maintained. It is not pretended that the defendant is to be charged in respect of any express undertaking or agreement between him and the testator, or in respect of any other character than his public and official character of Secretary at War. On principles of public policy, an action will not lie against persons acting in a public character and situation, which from their very nature would expose them to an infinite multiplicity of actions; that is to actions at the instance of any person who might suppose himself aggrieved; and though it is to be presumed that actions improperly brought would fail, and it may be said that actions properly brought should suc

ceed; yet, the very liability to an unlimited multiplicity of suits, would, in all probability, prevent any proper or prudent person from accepting a public situation at the hazard of such peril to himself.

An official, therefore, cannot be sued in his official capacity, since that would involve a questioning of the validity of an official act, a thing inconceivable; but well enough an officer may be sued in his private capacity, since that involves the determination of the question whether his act was an official act done in pursuance of law or whether the action was without justification of law; for in the latter case the act is as much a private wrong as if done by any private person. That is the distinction taken in the cases cited at this point; it is stated absolutely here, since these are general principles of administrative law, it remains to work the law out in more detail when the law governing administration will be seen to be more complex.9

9 RESPONSIBILITY OF THE OFFICER.-Rogers v. Dutt, 13 Moo. P. C. 236; Gidley v. Palmerston, 3 Brod. & B. 275; Raleigh v. Goschen [1898] 1 Ch. 73; Baker v. Ranney, 12 Grant Ch. 228; Kearney v. Creelman, 16 N. S. 228; Amy v. Supervisors, 11 Wall. 136; United States v. Lee, 106 U. S. 196; Coblens v. Abel, Woolworth 293; Eslava v. Jones, 83 Ala. 139; McClure v. Hill, 36 Ark. 268; Ex Parte Tinkum, 54 Cal. 201; Thames Mfg. Co. v. Lathrop, 7 Conn. 557; Denver v. Dean, 10 Colo. 375; Dowling v. Bowden, 25 Fla. 712; Collins v. McDaniel, 66 Ga. 203; Strickfaden v. Zipprick, 49 Ill. 286; Jarratt v. Gwathmey, 5 Blackf. 237; McCord v. High, 24 Ia. 336; Bridge Co. v. County Com'rs, 10 Kan. 326; Marksberry v. Beasley, 8 Ky. L. Rep. 534; State v. Mason, 43 La. Ann. 590; Hayes v. Porter, 22 Me. 371; Akin v. Denny, 37 Md. 81; Keenan v. Southworth, 110 Mass. 474; Raynsford v. Phelps, 43 Mich. 342; State v. Coon, 14 Minn. 456; Baugh v. Lamb, 40 Miss. 493; St. Joseph Ins. Co. v. Leland, 90 Mo. 177; Merritt v. McNally, 14 Mont. 228; Miller v. Roby, 9 Neb. 471; State v. Kruttschnitt, 4 Nev. 178; Orr v. Quimby, 54 N. H. 590; Bonnel v. Dunn, 28 N. J. L. 153; Hover v. Barkhoof, 44 N. Y. 113; Holt v. McLean, 75 N. C. 347; Murphy v.

§ 13. Public action.

Such, therefore, is the responsibility of the officer to the law of the land by the common law principle. It is a rule almost without exception that the officer may be impleaded for any wrong act done in the course of administration as a private wrongdoer may be. If this is the end of the matter the state in time of stress can never obtain vigorous enforcement of the law, it must be admitted. But may the state not protect its officers from suits based upon acts done in the course of administration by some special legislation, and thereby may not the situation be saved? This was the gist of Mitch

ell v. Clark, 110 U. S. 633. An officer of the United States forces during the rebellion had seized and withheld from the owners two store-houses in St. Louis, and this was a suit for the rent due for these three months. Among other defenses the defendant pleaded 12 United States Statutes, 755, Section 4, as follows: That any or der of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest or imprisonment, made, done or committed, or acts to be done under or by virtue of such order, or under color of any act of Congress, and such defense may be made by special plea or under the general issue. In pursuance of this statute, the officer made defendant introduced in evidence a military order issuing from Washington conveyed to him by the General in command of his department.

Holbrook, 20 Oh. St. 137; Work v. Hoofnagle, 1 Yeates 506; State v. Ruth, 9 S. Dak. 84; Alvord v. Barrett, 16 Wis. 175; Richmond v. Long's Adm'rs, 17 Grat. 375.

Mr. Justice MILLER, after reciting the facts in the foregoing language, continued: It is not at all difficult to discover the purpose of all this legislation. Throughout a large part of the theatre of the civil war the officers of the army as well as many civil officers were engaged in the discharge of very delicate duties among a class of people who, while asserting themselves to be citizens of the United States, were intensely hostile to the government, and were ready and anxious at all times, though professing to be noncombatants, to render every aid in their power to those engaged in active efforts to overthrow the government and destroy the union. Some special statutes were passed after delay of a general character, but it was soon seen that many acts had probably been done by these officers in defense of the life of the nation for which no authority of law could be found, though the purpose was good and the act a necessity. That an act passed after the event which in effect ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred authority before, admits of no doubt. These are ordinary acts of indemnity passed by all governments when occasion requires it.

That is the gist of this case: These are ordinary acts of indemnity passed by all governments when occasion requires it. The inquiry at once presents itself, how can such an act stand as constitutional in the United States? Such a statute applied to matters between man and man could not be valid; it would deprive the party wronged of his fundamental rights. Yet it is allowed to be due process of law to protect an officer from the consequences