Heiser v. Severy

ON PETITION FOR REHEARING William Heiser sued the five members constituting the Montana State Fish and Game Commission, the State Fish and Game Warden and Jack Thompson, a deputy State Fish and Game Warden, in their official capacity as public officers of the State of Montana and not as individual citizens. In his complaint Heiser states that on November 15, 1942, he owned a 12-gauge shotgun which he was using in hunting game birds in Broadwater county and that Jack Thompson, as a deputy game warden for the State of Montana, acting pursuant to orders from the members of the Commission and from the State Fish and Game Warden, wrongfully seized and took the gun from him with the intent and purpose of confiscating it. Heiser asked for and he was awarded judgment against the members of the Commission, the State Fish and Game Warden and his deputy in their official capacity as public officers and not as individual citizens for the recovery of the shotgun or for $50 as its value together with $50 damages for detaining the gun and $14.92 costs.

Heiser looks to the State Fish and Game Fund for the money to[7] pay the damages and costs awarded in the aforesaid judgment. If Heiser has been wronged by any member of the Commission or by the State Fish and Game Warden or a deputy, he has his remedy against such person or persons individually. But the fact that such individuals are public officers most certainly does not make the sovereign State of Montana answerable for their private wrongs. If Heiser's gun is wrongfully detained by any of the individuals named, Heiser has his right of action against such individuals for the recovery of his property. But the State of Montana is not liable in damages to Heiser nor may the funds belonging to the state and deposited in the State Fish and Game Fund be used to pay the damage occasioned by private wrongs committed by public officers of the state.

It matters not whether the claim is paid from the State Fish[8] and Game Fund or from the State General Fund, the moneys therein are equally the property and assets of the state and, in the absence of legislative authority therefor, they cannot be used to pay for the private wrongs committed by the public officers of the state. "Public officers, when acting in good faith within the scope of their authority, are not liable in private actions * * *. When a public officer goes outside the scope of his duty, he is not entitled to protection on account of his office, but is liable for his acts like any private individual." 46 C.J. Secs. 326, 327, pp. 1042, 1043. It is the individual who must respond for his torts and not the state.

The petition for rehearing is denied. Remittitur forthwith.

Mr. Chief Justice Johnson and Associate Justice Cheadle concur.

Associate Justices Angstman and Morris dissent.