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(after stating the facts.) Under our statute a county examiner has- power to revoke the license of a teacher for immorality, incompetency, and for “other adequate causes.” That portion of the statute defining the powers of such examiner, material for us to consider, is as follows : ‘ ‘He may cite to re-examination any person holding a license and under contract to teach any free school in his county ; and, on being satisfied, by re-examination or by other means, that such person does not sustain a good moral character, or that he has not sufficient learning and ability to render him a competent teacher, he may, for these and other adequate causes, revoke the license of such person.”
When, under this statute, a teacher has been cited to appear and answer charges preferred against him, and, when, after a fair investigation, the examiner honestly concludes that the teacher has been guilty of such conduct as, under the statute, justifies a revocation of his license, we agree with counsel for appellant that he is not liable for damages, whether his decision be correct or not. He must follow the statute from which he receives his authority, but whether the evidence is sufficient to make out a proper case under the statute, is for him to determine. The law reposes this discretion in him, and will protect him when he acts honestly and in the faithful attempt to discharge his duties. To render him liable, it must be shown, not only that he acted erroneously, but also maliciously. Were the law otherwise, it would be hazardous to undertake to discharge the duties of such au office, for an erroneous decision, however honestly made, would expose the officer to an action for damages.
Judge Appleton, of the Supreme Court of Maine, discussing this question in a case where the members of a school committee were sued for wrongfully expelling a student from a public school, said: “ The general principle is established by an almost uniform course of decision that a public officer, when acting in good faith, is never to be held liable for an erroneous judgment in á matter submitted to his determination. All he undertakes to do is to discharge his duty to the best of his ability and with integrity. That he may never err in his judgment, or that he may never decide differently from what some other person may think would be just, is no part of his official undertaking.” Donahoe v. Richards, 38 Me. 392. See also the following authorities : Chamberlain v. Clayton, 56 Iowa, 331; S. C. 41 Am. Rep. 101; Burton v. Fulton, 49 Pa. St. 154; Gregory v. Small, 39 Ohio St. 346; Elmore v. Overton, 104 Ind. 552; Fausler v. Parsons, 20 Am. Rep. 431; Pike v. Megoun, 44 Mo. 491; Kendall v. Stokes, 3 How. (U. S.) 98; Cooley on Torts, (2 ed.) 479-483; Mechem, Public Officers, secs. 638 and 639; 19 Am. & Rng. Rnc. Law. 486-489 ; Bishop, Non-Contract Law, sec. 785.
Inability for revoking* teacher’s license without giving notice.
But the officer must act within his jurisdiction. Before he can claim the protection of the law he must do that which the law directs that he shall do before exercising his discretion.
A fair construction of the statute under consideration compels the conclusion that the examiner, before revoking the license of a teacher, must cite or summon him for examination upon the charges preferred against him. This citation is for the purpose of notifying the teacher of the charges made against him, in order that he may have an opportunity to disprove them, or to render any reasonable excuse in justification of his conduct. This was not done in this case. The license was revoked without notice to the teacher, and before he was given an opportunity to defend or excuse his conduct. The giving of this notice was not a matter left to the discretion of the examiner; for, until it .was given, he had no power to pass upon the conduct of the teacher. As he undertook to do this, — to pass judgment and revoke the license without notice, — he acted in violation of the statute, and without authority, and he is liable for the consequences of his acts. Fausler v. Parsons, 6 W. Va. 486, S. C. 20 Am. Rep. 431; 2 Cooley, Torts, 486..
When want o± notice not waived.
Some days after the order revoking ,the license had been made, appellee came forward, and requested the appellant to set the order aside, which appellant refused to do. It is now said that this action of appellee was a waiver of notice, but a majority of the court hold that this is not so, for two reasons : First, all reference to this application was, upon motion of the appellant himself, stricken from the complaint; second, the application to set aside could not make valid a previous void order. Had the order revoking the license been set aside at request of appellee, and the matter heard anew, a subsequent decision or order would not have been void for want of notice; but this was not done. Appellant refused to vacate or modify his order revoking, the license in any respect, and his liability for damages must be tested by his authority to make that order. The invalidity of that order is not in anyway affected or cured by the ineffectual attempt to have it set aside. Works, Courts and their Jurisdiction, p. 105; Mills v. State, 10 Ind. 114; Briggs v. Sneghan, 45 Ind. 14.
Our conclusion is that the judgment of the circuit ■court must be affirmed, without regard to whether the •court erred in its instructions or not; and it is so ordered.