Former opinion, set aside and judgment affirmed on rehearing July 22, 1924.
On Rehearing.
(228 Pac. 135.)
For appellant there was a brief and oral arguments by Mr. Homer I. Watts and Mr. E. C. Prestbye. For respondent there was a brief over the names of Mr. C. Z. Randall and Messrs. Fee & Fee, with oral arguments by Mr. Randall and Mr. James A. Fee, Jr. BROWN, J.The precise question involved in this appeal has never before been presented to this court for determination.
Plaintiff’s complaint avers that the defendants ransacked his residence and seized, on his premises, the following intoxicating liquors:
“91 quarts of whisky and brandy; 5 quarts of vermouth; 4 quarts of gin; 1 bottle of beer; 12 quarts of old Scotch whisky; 3 bottles of Virginia Dare; about 1 gallon of gin in a keg; 5 gallons of whisky in a keg; 2 gallons of Scotch whisky in a jug; part of a *656bottle of kimmel; 1 small brown jug, and several parts of bottles of other intoxicating liquors,”
and that they falsely and maliciously accused him of violating the Prohibition Liquor Laws of this state.
It will be seen from the allegations of the complaint that the plaintiff possessed all the liquor that the information filed against him charged him with possessing, and that he was keeping it at his residence in Umatilla County, Oregon, as charged. The error made by the district attorney seems to consist in his charge as to the alleged use made of such liquor by the plaintiff, who avers that he purchased and stored the liquor in his residence prior to January 1, 1916.
In the beginning of our consideration of this appeal, we should remember that an action for malicious prosecution is not a favorite of the law.
“Public policy favors prosecutions for crime, and requires that a person who in good faith and upon reasonable grounds institutes such proceedings upon a criminal charge shall be protected. The presumption of law is therefore that every prosecution for a crime is founded on probable cause and is instituted only for purposes of justice.” 19 Am. & Eng. Ency. of Law (2 ed.), 650.
The editors of Ruling Case Law have written:
“ * * The action for malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with. The disfavor with which the action is looked upon is especially marked in cases where the suit is being-brought for the institution of criminal proceedings against the plaintiff, as public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage.” 18 E. C. L., p. 11.
*657Again:
“Actions for malicious prosecutions are regarded by law with jealousy. Lord Holt said, more than two hundred years ago, that they 'ought not to be favored but managed with great caution.’ Their tendency is to discourage prosecution for crime, as they expose the prosecutors to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecutions, when, if they fail, they may be subjected to the expense of litigation, if they be not mulcted in damages.” Newell on Malicious Prosecution, p. 21.
The defendant asserts, in effect, that the district attorney was required by the Oregon Prohibition Law (Or. L., § 2224—55), to commence and prosecute that criminal action against the defendant, although the officer knew that the affidavit was perjured and that none of the statements relied upon were true. He contends that in the event of his failure to prosecute he would have subjected himself to the penalties prescribed by Section 2224—44 of the act.
In this contention we cannot agree. The district attorney, in determining whether to institute a prosecution, is a quasi-judicial officer, who possesses a certain discretion as to when, how, and against whom to proceed: 23 Am. & Eng. Ency. of Law (2 ed.), p. 275.
The power conferred upon a district attorney is not purely ministerial.
“Their discretion is limited; but that — as a necessity — they do possess a discretion, is indisputable. In nearly every instance, they alone determine when, how, and who to prosecute or sue in the name of the state.” Farrar v. Steele, 31 La. Ann. Rep., p. 640.
The duty of the district attorney is well stated in Commonwealth v. Nicely, 130 Pa. 261, 270 (18 Atl. 737, 738), where the court said:
*658“The district attorney is a quasi-judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes.”
“The prosecuting attorney is a sworn minister of justice, whose duty it is to see that the innocent are protected, as well as that the guilty are brought to punishment, and who must stand indifferent as between the accused and any private interest.” "Weeks on Attorneys at Law (2 ed.), § 282a.
The Supreme Court of Michigan, in Engle v. Chipman, 51 Mich. 524 (16 N. W. 886), spoke as follows:
“The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion intrusted to him as a minister of justice, and not as a mere legal attorney. He is disqualified from becoming in any way entangled with private interests or grievances in any way connected with charges of crime. He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned. This discretion is official and personal.”
That part of the Prohibition Law defining the duties of a district attorney will be presumed to have been enacted by the legislature with full knowledge of the existence of Section 1018, Or. L., investing the district attorney with discretion, as well as charging him with a duty.
It is a familiar rule of interpretation that—
“In the construction of a particular statute * * all acts relating to the same subject * * should be read in connection with it, as together constituting one law.” 36 Cyc. 1147, 1148.
The provisions of the Prohibition Law relative to the duty of the district attorney to prosecute for *659the commission of a crime did not repeal, either directly or by implication, Section 1018, Oregon Laws, defining his duties. That section of the Code should be read in connection with the provisions of the Prohibition Law defining his duties. In truth, the Prohibition Law is in accord with Section 1018.
“If any prosecuting officer shall be notified or have knowledge of or reason to suspect any violation of any of the provisions of the laws of this state relating to intoxicating liquors, it shall be his duty forthwith diligently to inquire into the facts of such violation * * Section 2224 — 50, Or. L.
This section authorizes the district attorney to issue process, commanding the attendance of persons who he believes have information of the violation of the liquor laws.
Section 2224—51 provides for the swearing of witnesses who are called before the district attorney, and for reducing their testimony to writing.
Section 2224—52 empowers the district attorney to administer oaths or affirmations to the witnesses before him.
Section 2224—54 provides:
“If the testimony so taken discloses that there is reasonable ground to believe that an offense has been committed, the prosecuting officer shall at once prosecute the person or persons suspected of committing the offense * * .”
Section 2224 — 55 enacts that—
“If the sworn statement of any witness so taken before any prosecuting officer or magistrate, as in the last preceding section provided, shall disclose the fact that intoxicating liquors are being kept for unlawful sale or purpose, or are being sold by an unknown person or persons, particularly describing such unknown person or persons, contrary to the provisions of this *660act, at any place, particularly describing tbe place to be searched and the property to be seized, as hereinafter provided, within such county, it shall be the duty of such prosecuting officer forthwith to file his complaint or information charging such offense as shall appear to have been committed, * * verified by such prosecuting officers upon information and belief * * .”
“Verify. Law, to confirm or substantiate by oath or proof.” Webster’s New International Dictionary.
“Verify. To confirm or substantiate by oath; to show to be true. Particularly used of making formal oath to accounts, petitions, pleadings, and other papers.” Black’s Law Dictionary; Anderson’s Law Dictionary.
The law does not contemplate the filing of a verified information or complaint, as provided for in Section 2224—55 of our Code, in the absence of sufficient information upon the part of the district attorney to produce in his mind a reasonable belief of the truth of the charge. Section 2224—50 requires the district attorney, whenever notified of a violation of the Prohibition Law, to make diligent inquiry for the purpose of ascertaining the facts relating to the charge; but the filing of a complaint by him depends upon whether or not there appears to him to be reasonable ground to believe that the offense charged has been committed. When complaint is made, it is his duty to act for the purpose of ascertaining the facts, but it is not his duty to cause the arrest of any person unless there appears to be reasonable ground for such arrest. Every prosecution for crime should be based upon probable cause.
“Probable cause does not depend on the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution.” Bacon v. Towne, 4 Cush. (Mass.) 239.
*661It is also urged in support of the demurrer, that the defendant Keator is not liable because of the fact that his act was of a judicial nature.
Much has been written concerning the liability of judicial and quasi-judicial officers to civil actions for acts of a judicial nature. The doctrine announced in the following case has frequently been approved:
“No public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it. Such acts, when corrupt, may be punished criminally; but the law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of a judicial duty. The rule extends to judges, from the highest to the lowest, to jurors, and to all” public officers, whatever name they may bear, in the exercise of judicial power. It of course applies only where the judge or officer had jurisdiction of the particular case, and was authorized to determine it. If he transcends the limits of this authority, he necessarily ceases, in the particular case, to act as a judge, and is responsible for all consequences. But with these limitations, the principle of irresponsibility, so far as respects a civil remedy, is as old as the common law itself.” Weaver v. Devendorf, 3 Denio (N. Y.), 120.
There are many cases holding that a justice of the peace, in the performance of judicial acts within his jurisdiction, is not liable, although he may be actuated with malicious intent and corrupt motives: See extensive note to Lacey v. Hendricks, 137 Am. St. Rep. pp. 45, 49. But there are cases that seem to hold to the contrary. See notes, 6 Am. Dec. 303 and 19 Am. Dec. 490.
Mr. Freeman, in a note to Lacey v. Hendricks, supra, at page 50 said:
“There is conflict among the authorities as to whether a quasi-judicial officer is liable in a civil ac*662tion, even where his acts are malicious or corrupt; but there is no conflict as to his immunity from personal liability to the same extent as judges of courts, while he acts in good faith, and within the limits of the authority expressly granted to him. But the question is pretty well settled that a gwisi-judicial officer acting in a judicial capacity, with jurisdiction, is protected in the discharge of his duties to the same extent as judg’es, and that while acting within the bounds of his authority the fact that he acts maliciously or corruptly will not affect his right to immunity from civil liability.”
Fath v. Koeppel, 72 Wis. 289 (39 N. W. 539, 7 Am. St. Rep. 867), was a case against a fish inspector who was vested with power to determine the quality and wholesomeness of fish offered for sale, and, if unwholesome, to condemn and destroy fish so offered. In that case, the Supreme Court of Wisconsin, in sustaining the demurrer to the complaint in an action for damages, said:
“ * * The officer exercising such a power is within the protection of that principle, that a judicial officer is not responsible in an action for damages to anyone for any judgment he may render, however erroneously, negligently, ignorantly, corruptly, or maliciously he may act in rendering it, if he act within his jurisdiction. This principle is stated and given force in Steele v. Dunham, 26 Wis. 393, by the present chief justice, to shield from liability members of an equalizing board, * * who are charged with liability for damages to the plaintiff for corruptly and oppresively increasing the valuation of certain property, without proof. * * This principle protects all officers exercising judicial powers, whatever they may be called. It is ‘a judicial privilege’ and has ‘a deep root in the common law,’ and found ‘asserted in the earliest judicial records and it has been steadily maintained by an undisturbed current of decisions’: Yates v. Lansing, 5 Johns. 291. It is a discretionary an*663thority, where the determination partakes of the character of a judicial decision: Druecker v. Solomon, 21 Wis. 621 (94 Am. Dec. 471, and other authorities).”
Grounding their reasoning upon public policy, the authorities teach us that a grand juror is not answerable in damages in a civil proceeding for his action as such juror, however erroneous his action may be, and notwithstanding that such action may have been actuated by a malicious motive: Hunter v. Mathis, 40 Ind. 356; Sidener v. Russell, 34 Ill. App. 446; Turpen v. Booth, 56 Cal. 65 (38 Am. Rep. 48). This doctrine being applicable to grand jurors, there is no good reason why it should not shield the prosecuting attorney from civil liability in the case at bar.
Turpen v. Booth, supra, involves the question of the responsibility of a grand juror in a civil action, for damages for an act committed by him while acting as such grand juror in a case where an indictment was returned upon insufficient evidence and with the motive maliciously to injure the defendant, charged with illegal voting. The complaint set forth that each of the grand jurors took the oath prescribed by law, that “they would present no person through malice, hatred, or ill will,” but that regardless of their oath, the grand jurors, and each of them, were actuated and influenced by a desire to blast, tarnish and ruin the good name enjoyed by plaintiff among his fellows. It averred that the grand jurors pretended to receive and hear evidence against the plaintiff; that the law officer of the county, after hearing the evidence, instructed the grand jury that an indictment could not lie against the plaintiff upon the evidence adduced before it in support of the charge of illegal voting, and that, according to the evidence received, no crime had been committed; that notwithstanding the insuffi*664ciency in the evidence, the grand jnrors “collectively and individually, willfully, falsely, and fraudulently, and without prohable cause, and being possessed of actual malice and ill will against this plaintiff * * corruptly did pretend to find a true bill and indictment against this plaintiff for falsely and illegally voting, etc., and such indictment was duly presented by the foreman of the grand jury, and was filed according to law.”
Defendants asserted that they were exempt from all liability, by virtue of a section of the Penal Code providing that a grand juror cannot be questioned for anything he may say or any vote he may give, relative to a matter legally pending before the jury, except in cases of perjury (citing Section 927, Penal Code, State of California).
The Supreme Court of California held that that section was but declaratory of the common law as it existed prior to the adoption of the statute, citing in support of its holding Wharton’s American Criminal Law, § 509; Proffatt on Jury Trial, § 55; Chitty on Pleading, 89, which reads:
“Nor can an action be maintained against a juryman, or the attorney general, * * for an act done in the execution of his office, and within the purview of his general authority,”
and the leading case of Bradley v. Fisher, 13 Wall. 335 (20 L. Ed. 646, see, also, Rose’s U. S. Notes), involving the liability of the judge of a court for malicious prosecution. The court further held that the power of the grand jurors, while acting as such, is gwasi-judicial, and that they are not civilly answerable; that—
“they have certain duties to perform, under the law, of a quasi-judicial character, and in the performance *665of such duties the law invests them with judgment and discretion. The grand jury was an essential part of the machinery of the County Court. They were not volunteers, but were engaged in the performance of a duty that was compulsory. In finding the indictment complained of, they acted within the legitimate sphere of their duty, and cannot be held civilly responsible. What is said by the learned judge in the case of Scott v. Stansfield, L. R. 3 Ex. 220 — ‘This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences’ —is applicable to this case.”
The prosecuting attorneys of this state are specially charged with the enforcement of the provisions of the Prohibition Liquor Law. However, like grand jurors, they are vested with some discretion and judgment. The defendant R. I. Keator is one of the law officers of the State of Oregon. His jurisdiction is confined to the limits of Umatilla County. In the absence of statutory regulations, the prosecuting attorney, in his district, possesses the power of the attorney general at common law: State v. Douglas County Road Co., 10 Or. 198, 201; State ex rel. v. Lord, 28 Or. 498 (43 Pac. 471, 31 L. R. A. 473); State ex rel. v. Metschan, 32 Or. 372 (46 Pac. 791, 53 Pac. 1071, 41 L. R. A. 692); State v. Guglielmo, 46 Or. 250 (79 Pac. 577, 80 Pac. 103, 7 Ann. Cas. 976, 69 L. R. A. 466); State v. Millis, 61 Or. 245 (119 Pac. 763); Gibson v. Kay, 68 Or. 589 (137 Pac. 864).
In the case of Griffith v. Slinkard, 146 Ind. 117 (44 N. E. 1001), the Supreme Court affirmed the decision of the lower court in an action against the prosecuting attorney, wherein it was claimed that he procured an *666indictment maliciously and without probable cause. In that case the court wrote:
“In State v. Henning, 33 Ind. 189, at page 191, this court said: ‘ The turning point in the case is this: Is a prosecuting attorney an officer entrusted with the administration of justice? * * He is the law officer of the court, to whom is entrusted all prosecutions for felonies and misdemeanors. 2 Gr. & H., page 430, section 4. He is the legal adviser of the grand jury. We think he is “an officer entrusted with the administration of justice.” ’ * * ‘Whenever duties of a judicial nature are imposed upon a public officer, the due execution of which depends upon his own judgment, he is exempt from all responsibility by action for the motives which influence him and the manner in which said duties are performed. If corrupt, he may be impeached or indicted, but he cannot be pro'secuted by an individual to obtain redress for the wrong which may have been done. No public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which produced it.’ Townshend, Slander and Libel (3 ed.), Section 227, pages 395-6. * * There is therefore no more liability against the prosecuting attorney than there is against the grand jury for the return of an indictment maliciously and without probable cause.”
A leading case is Smith v. Parman et al., 101 Kan. 115 (165 Pac. 663, L. R. A. 1917F, 698). From that case, we carve:
“The public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury. If, while he has a question of that kind under advisement, he is charged with notice that he may have to defend an action for malicious prosecution in case of a failure to convict, his course may be influenced by that consideration, to the disadvantage of the public. Communications made to a public prosecutor relating *667to offenses against the law are treated as privileged, because ‘persons having knowledge regarding the commission of a crime ought to be encouraged to reveal to the prosecuting attorney fully, freely, and unreservedly, the source and .extent of their information’ (citation)'. We think the reason for granting immunity to judges and grand jurors applies with practically equal force to a public prosecutor in his relations to actions to punish infractions of the law. There is no great danger that abuse of power will be fostered by this exemption from civil liability, for the prosecutor is at all times under the wholesome restraint imposed by the risk of being called to account criminally for official misconduct * * , or of being ousted from office on that account. * * ”
That case is annotated by a note on the subject of liability of public prosecutor to action for malicious prosecution, wherein the editor says:
“The decision in Smith v. Parman, ante, p. 698, that a public prosecutor is not liable in a civil action for having instituted or maintained a criminal prosecution, is supported by what seems to be the only case directly in point.”
In the same note, the editor quotes from Stephen on Malicious Prosecution, Section 85, where it is written:
“I know of no instance in which any person has been sued for a prosecution ordered by any officer of state, and I doubt if such an action would lie. Prosecutions may be directed by a secretary of state, the attorney general, or the director of public prosecutions, and I know of no direct authority as to whether or not an action for malicious prosecution would lie against any of these officers for what they have done in their official capacities.”
See, also, Cottam v. Oregon City, 98 Fed. 570; Parker v. Huntington, 2 Gray (Mass.), 124, 18 C. J. 1318.
*668However, there is now a case that takes the contrary view and which expressly states that it doubts the correctness of the text in Griffith v. Slinkard, supra. We refer to the case of Leong Yau v. William T. Carden, 23 Hawaii, 362, wherein the defendant, deputy city and county attorney of the City and County of Honolulu, was charged with, the duty of investigating criminal charges, and, in proper cases, of prosecuting the same. A complaint was filed alleging that the deputy county and city attorney, without probable cause, and with malice, had instituted criminal proceedings against the plaintiff; that the plaintiff had sustained damages by reason of the prosecution, and that the proceedings in the action for damages had terminated in favor of the plaintiff. On appeal, the court overruled the judgment of the lower court sustaining demurrer to the complaint. See, also, Schneider v. Shepherd, 192 Mich. 82 (158 N. W. 182, L. R. A. 1916F, 399); Skeffington v. Eylward, 97 Minn. 244 (105 N. W. 638, 114 Am. St. Rep. 711).
It is well to observe while passing that—
“Jurisdiction always depends upon the allegations, and never upon the facts. * * The truth of the allegations does not constitute jurisdiction.” Van Fleet’s Collateral Attack, § 60.
A valuable case is Cooke v. Bangs, 31 Fed. 640, 644, opinion by Mr. Justice Brewer.
In considering the demurrer, we must accept as true all well-pleaded allegations of the complaint. When plaintiff’s complaint is laid bare, stripped of its many expletives, it will be seen that much material matter contained in the district attorney’s information was true. What particular matter that information contained that was willfully false, we are not told.
*669The policy of the state with reference to intoxicating liquor is expressed by its “bone dry” law, and under its provisions the mere possession of intoxicating liquor, with certain exceptions, is a crime. In a charge of possession, it is unnecessary to plead such exceptions: State v. Rosasco, 103 Or. 343 (205 Pac. 290). The plaintiff herein had in his possession, at his residence, a large quantity of intoxicating, liquor, as charged by the prosecuting attorney. That liquor, according to the complaint in the civil action, was purchased and stored prior to January 1, 1916, and hence possession alone was not an offense. However, there is no presumption that the district attorney was informed of that fact.
In reaching a decision, we are confronted with a determination that concerns public policy. We are face to face with a law:enforcing problem. Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage actions for malicious prosecution.
We do not know, nor do we intimate, that either the plaintiff or the district attorney has been guilty of an offense. Our observations have reference to the charge contained in the complaint.
We have seen that the district attorney owes as great a duty to protect the innocent as to prosecute the guilty. It is hard to conceive of a greater wrong than that of knowingly, falsely and maliciously accusing an innocent man of the commission of a crime. A good name, good repute as a citizen, is reckoned as a thing of priceless value. The right to liberty and happiness is rated high. The law of criminal procedure is not a public invitation for a district *670attorney or any one else to attack the reputation of citizens at the expense of the taxpayer. No official is above the law. “Thou shalt not bear false witness” is a command of the Decalogue, and that forbidden act is denounced by .statute as a felony. It is almost inconceivable that any district attorney should commit the offense of subornation and perjury, as charged by plaintiff, and thus subject himself to criminal prosecution. The criminal statutes apply as surely to him as to any other person. All persons are equal before the law. Willfully and falsely to accuse any person is not a private matter. It is of public concern. A corrupt district attorney, who would resort to subornation and perjury for the purpose of fastening a crime upon an innocent man should, and would, be hurled from power by an aroused public conscience. The public is concerned in the enforcement of its criminal statutes, but it is equally interested in an honest enforcement thereof, and the term “honesty” admits of but one meaning. The public policy of the state affords ample protection to the innocent, and a prosecutor’s endeavors should not be weakened by back-fire in the nature of malicious prosecution.
After mature deliberation upon the facts contained in the record'before us, and in consideration of the policy of the state in the matter of enforcement of criminal statutes, we hold that the demurrer should be sustained. It follows that our former decision should be set aside, our opinion • recalled and the judgment of the lower court affirmed. It is so ordered.
Former Opinion Set Aside and Judgment Aepirmed.
Burnett and Rand, JJ., dissent.