Dissenting. — As to violations of the Prohibition Law, the jurisdiction of the district attorney is thus defined in Section 2224—44, Or. L.:
“It shall be the duty of the district attorneys in this state to diligently prosecute any and all persons violating any of the provisions of, and otherwise to enforce, this act in their respective counties.”
Under Section 2224—50 it is his duty to institute inquiry when he is notified or has knowledge of or reason to suspect any violation of the liquor laws. He may also, by the same section, impose the duty of inquiry upon a magistrate. Preliminary inquiry is quite different from actual arrest and prosecution. The latter is applicable only to “persons violating any of the provisions” of the law.
In this government of the people, by the people, for the people, no officer is clothed with arbitrary, autocratic or irresponsible power with which he may knowingly oppress an innocent person. I fully agree with the principle that any judicial officer, district attorney or grand juror, while acting within the scope *673of his authority, is protected from either civil or criminal liability, though his actuating motive may be malicious. He may depend upon testimony of witnesses if he has no knowledge of nor reason to suspect its want of truth although the event may demonstrate its falsity. But when, as charged in the complaint herein, he knows that the charge he promotes is false, he has no right to seize upon some isolated inconclusive circumstance and institute a prosecution upon it. It is the scienter that strips from him the immunity of his official station. A person whom the district attorney knows to be innocent is not one of those within his jurisdiction to prosecute. When he has actual knowledge of innocence he cannot have reasonable cause to believe guilt. Only a person who is an actual violator of the law or whom the district attorney has reasonable cause to believe is such violator is amenable to prosecution by that officer. All others are beyond the pale of his authority and as to them when he knows they are guiltless he acts at his peril, for there can be no wrong without a remedy.
Whether, on issue joined, the plaintiff may be able to prove his allegation that the defendant, who it is said sub rosa is district attorney, knew that the former was innocent, is not a question to be determined here. All we have before us is the sufficiency of the complaint as against a general demurrer. I concur with Mr. Justice Rand.
RAND, J., Dissenting. — Since the former decision of this court reported in 222 Pac. 318 was rendered, a petition for rehearing was granted. A reargument has been had and the cause is again before us for decision. We shall make no attempt to restate the *674facts, but confine ourselves to such facts only as are necessary for a proper understanding of the questions now before us.
This is an action for malicious prosecution, and the questions for decision arise upon a demurrer to the complaint. The gist of the cause of action alleged in the complaint is the fact that the defendant knew that the plaintiff was innocent and that he lawfully had in his possession certain intoxicating liquor, of which he was making no unlawful use or disposition, and, knowing these facts, falsely and maliciously accused and charged, and instigated others to falsely and maliciously accuse and charge, the plaintiff with the commission of a criminal offense concerning his possession, use and disposition of said liquor, and caused plaintiff to be prosecuted upon said false and fictitious charge in the courts of Umatilla County, and, upon the trial, instigated others to swear falsely against the plaintiff, knowing at the time that the charge itself was a false, fictitious and trumped-up one.
Whether, as intimated, the allegations are stronger than the proof and the plaintiff will be unable to sustain them by proof, is a question that can be determined only upon the trial. That question is of no concern to us at this time, for, if the fact intimated is true, it affords no ground for sustaining the demurrer. The legal effect of the demurrer is to admit the truth of the facts as stated in the complaint, and the only office it can perform is to object to the legal sufficiency of the complaint itself. If the complaint does state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, the demurrer, as a matter of law, must be overruled, regardless of whether or not, upon the *675trial, plaintiff can establish the truth of his allegations.
It is contended, however, although that fact is not alleged in the complaint, that because the defendant Keator was the duly elected, qualified and acting district attorney for Umatilla County and because the plaintiff had in his possession certain intoxicating liquor, the possession of which, if acquired prior to the enactment of the prohibition statute, and no unlawful use being made of it, would, under the statute, be lawful, the prohibition statute itself contains terms which authorized the district attorney to do the acts complained of, even though at the time he knew that no crime had been committed by the plaintiff. That the legislature did not so intend, and even if it had such an intent, that it had no such power, is beyond the possibility of successful controversy. That the statutes referred to confer no such power plainly appears from the express terms thereof.
“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.
“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 — 54.
“If the sworn statement of any witness * * 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 *. * contrary to the provisions of this act * * it shall be the duty of such prosecuting officer forthwith to file his complaint *676or information charging such offense as shall appear to have been committed. * * ” Section 2224 — 55.
Under the provisions of these statutes, when can it be said that it becomes the duty of an officer to act? The statutes themselves answer the question. It becomes his duty, under the first section quoted, to inquire into the facts when he is notified or has knowledge of or reason to suspect any violation of any prohibition law. Under the second section, it becomes his duty to prosecute the person suspected when the testimony discloses that there is reasonable ground to believe that an offense has been committed, and under the latter it becomes his duty to file a complaint charging an offense when the sworn statement of any witness discloses the fact that intoxicating liquors are being kept for unlawful sale or purpose, or are being sold by any person contrary to the provisions of the act. It is not reasonable to say that anything to be found in these statutes confers any power or authority upon a district attorney to falsely and maliciously charge another with the commission of a criminal offense which he knows him to be innocent of. Unless a district attorney is notified' or has knowledge of, or has some reason to suspect that a crime has been committed, there is nothing before him which authorizes him to make any inquiry or do any act in the exercise of his q-uasi-judicial capacity. When a district attorney falsely and maliciously charges a person with the commission of an offense which he knows him to be innocent of, he is acting beyond the scope of any authority conferred by statute and in direct violation of the implications of the statute, and is responsible, like others, for the consequences of his own wrongful act.
*677The authorities relied upon by Mr. Justice Brown, namely, Weaver v. Devendorf, 3 Denio (N. Y.), 120; Mr. Freeman’s note to Lacey v. Hendricks, 137 Am. St. Rep., pp. 45, 50; Fath v. Koeppel, 72 Wis. 289 (39 N. W. 539, 7 Am. St. Rep. 867), and 1 Chitty on Pleading, *89, afford no support for the contention that because the defendant, in falsely and maliciously accusing the plaintiff of an offense which he knew he had not committed, was acting in his official capacity he is not liable, under the facts alleged in the complaint, for the damages resulting from his wrongful acts. In the first case cited, the court clearly states the law which, we think, ought, to be controlling here.
“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 when 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.”
Under this authority, if it can reasonably be said that the district attorney, in maliciously and knowingly making a false accusation against another and causing him to be prosecuted therefor, had jurisdiction of the particular case and was acting in the exer*678cise of Ms judicial power and was not transcending the limits of his authority, then the excerpt quoted would sustain this contention, but as this cannot reasonably be said his acts bring him within the class for which that court said he is responsible for all consequences 5 for it must be clear that a district "attorney, in making a false charge against a person whom he knows to be innocent, is neither acting as a judge nor in the performance of a duty, either judicial or quasi judicial.
Nor do we disagree with anything contained in the statement made by Mr. Freeman to the effect that there is no conflict among the authorities as to the immunity from personal liability of a district attorney or other person acting in a quasi-judicial capacity to the same extent as judges of courts “while he acts in g’ood faith and within the limits of the authority expressly granted to him.” What we assert is that, under the facts alleged, the defendant was not acting in good faith, nor in the discharge of his duty, nor within the bounds of his authority, and, for acting wholly without authority and maliciously, he is liable for the resultant damages, as stated by Mr. Freeman.
We also agree with the principles stated in the last case cited, where the court 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 acts, within his jurisdiction.”
Mr. Chitty, in his first volume on Pleading, *89, said:
“An action cannot be maintained against a civil or ecclesiastical judge or justice of the peace, acting *679judicially in a matter within the scope of his jurisdiction, although he may decide erroneously in the particular case. Nor can an action be maintained against a juryman, or the attorney general, or a superior military or naval officer, for an act done in the execution of his office, and within the purview of hi§ general authority. And commissioners' of bankrupts are not liable to an action of trespass for committing a person who does not answer to their satisfaction when examined before them touching the bankrupt’s estate and effects. But if a public officer have no jurisdiction whatever over the subject matter, and his proceedings are altogether coram non judice, he is responsible.”
Hence we hold that, while the law is settled that an action will not lie against a judge for any act done in his judicial capacity, nor against a grand juror for finding an indictment, nor against a petty juror for his verdict, nor against a district attorney for an act done in his quasi-judicial capacity, this principle has no application to the facts alleged in the complaint now under consideration.
It is argued that this action should not be maintained because it has often been held that actions for malicious prosecution are not favored by the law and that the public policy and convenience requires that persons shall be protected from civil liability who have, in good faith and upon reasonable grounds, instituted proceedings for the prosecution of persons upon a criminal charge. Where a prosecution upon a criminal charge has- terminated favorably to the party accused and the proceedings were instituted maliciously and without probable cause, the law has always given to the injured party a remedy in damages for the wrong done him by an action for malicious prosecution.
*680“For this, however,” says Sir William Blackstone, “the law has given a very adequate remedy in damages, either by an action of conspiracy, which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution.” 3 Blackstone, *126.
There is but one legal ground upon which any argument can be advanced in support of the nonliability of the defendant in the instant case. That is on the principle that the law will rather suffer a private mischief than a public inconvenience. That principle is an exception to the well-recognized rule that there is no wrong without a remedy and is founded wholly upon principles of public policy and convenience. But the rule ought not to be applied here, for the complaint not only alleges the presence of malice and want of probable cause, but also the additional element that the criminal charge upon which the plaintiff was prosecuted was not only preferred by the defendant himself, but was made by him with knowledge upon his part at the time that he was making a false charge and that the plaintiff was innocent of the crime he was charging him with. It therefore appears from the allegations of the complaint, which are now admitted to be true, that the defendant falsely charged the plaintiff with the commission of a criminal offense. These allegations charge the defendant with the doing of an act in a manner which the early common-law judges term as falso et malitiose. The term imports not only the making of a false charge maliciously, but the making of it wickedly. As the defendant was a prosecuting officer, if the act had been done either ignorantly or rashly, for doing it, the law might hold him excusable. But *681as the act was done wickedly, with full knowledge of its falsity, the doing of the act, in law, was neither justifiable nor excusable, and the defendant ought to be compelled to answer for the consequences of his wrongful act. Public policy, as has frequently been held, is, at most, a vague and uncertain guide, and was designated by Burroughs, J., as “an unruly horse pursuing us and when once you get astride of it, you never know where it will carry you.” 2 Bing. 229. To contend, under any proper conception of sound public policy, that any prosecuting officer has the privilege of bringing’ a person into court and charging him with and prosecuting him for a crime which he knows him to be innocent of, without being answerable for the damages caused thereby, upon the theory that the public good will be best subserved thereby, is a proposition too monstrous to be debated in a court of justice; for it must be obvious to any reasonable mind that this would place in the hands of an unscrupulous officer, powers which are not consistent with good government nor the welfare of society.