(dissenting.) — On rehearing, the majority decline to change the decision, but do change the opinion. To this changed opinion, I propose to reply-
This opinion, by my Brother Somerville, will' be a splendid one when a case arises to which it can apply. It is not applicable to the case at bar, but is applicable to cases like those of Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412, and Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646. I fully concur with Brother Somerville that these are leading American cases, and among the best considered, by the ablest judges, as to the civil liability of inferior judges as for their judicial actions. There is not a sentence, a line, a word, in the opinions of those two cases in which I do not concur; nor do .1 think that there was error in the conclusion or decision of either.
The radical and controlling difference between these cases and the one under consideration is that' the former were actions which sought to hold a judge of an inferior court liable for erroneous judicial actions; Avhile this action seeks to hold the judge liable for a void and unauthorized ministerial act. If this had been an ac*285tion for “an erroneous or corrupt exercise by the justice of the jurisdiction the law confers,” then the opinion of the majority would be applicable, and sufficient answer to the contentions of appellant; but the fact remains unanswered, and this record, and the statutes, and the decisions of this and other courts, declare that it is not such a case, and must be distinguished from such.
This distinction is clearly pointed out by Bbiokeld, J., in the case of Kelly v. Moore, 51 Ala. 364, 365. It is there made clear that actions like that there under consideration (which was exactly like this) were brought under the statute, nor for a corrupt or erroneous exercise of jurisdiction conferred by law, but for an abuse of the authority of the office, in acts done “under color of office.” In the case stated, Brickedd, J., treating of the wrong complained of, says: “ 'Under color of his office/ he arrests and imprisons the plaintiff. This was a misdemeanor at common law, and a tort for which an action could have been maintained against the justice. The sureties on his official bond would not, at common law, have been liable for this tort. The malfeasance of their principal, of which misfeasance could not also be predicated, was not within the scope of their obligation. Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 Ala. 183. This was deemed a defect in the common law, and to cure it the statute now extends the liability of sureties on official bonds to injuries from wrongful acts done by the officer under color of his office, as well as to the nonperformance or negligent performance of official duty. — R. C. § 169.”
The gravamen of the complaint in this case, to quote exactly, is as follows: “The said Douglass did, under color of his office as such justice of the peace, cause the plaintiff to be illegally arrested, by which he was de*286privet! of his liberty for a long time,” etc. No complaint whatever is made of any judicial action on the part of the justice, whether erroneous or corrupt. It is a ministerial act, done under color of office, of which complaint is made; and for such the statute makes the justice and his official bondsmen liable.
It is true that the justice and the surety attempted to defend against this action by pleading that the acts of the justice were “judical,” and that therefore neither he nor the surety was liable civilly for damages consequent upon such acts. But the trouble as to this plea was that it set out the warrant issued by the justice, and under which the plaintiff was arrested and imprisoned, which warrant, as Brother Somerville very correctly holds, was void on its face. ' In issuing this warrant, the justice no more acted judicially than did the constable who executed it; both were equally ministerial acts, and the two officers are equally liable as 'for arrests made under the writ, if in fact and in law it is absolutely void.
A justice of the peace, in both civil and criminal proceedings before him, acts both judicially and ministerially; and as for his judicial acts, if within his jurisdiction or “colorably so,” as stated by Justices Beasley and Somerville, he is not civilly liable, though the acts are bo1h erroneous and corrupt; but as for his ministe•rial acts Avhicli are void and wholly unwarranted by law, he is civilly and personally liable, was so under the English common law, is so under all American common law, and, together with his official bondsmen, is in this state made liable by statute. — 51 Ala. 365, 366.
A justice, in criminal proceedings, in hearing complaints, taking affidavits, examining witnesses to determine whether or not any offense has been committed, and if so, what offense, and who is probably guilty thereof, acts judicially, just as he does, on the hearing *287or the trial, Avhen tlie accused is brought before him; and if the justice errs in such matters he is not civilly liable.to any party injured by reason of his error, as long- as he acts Avithin his jurisdiction as justice. But AA'hen he undertakes the issuing of a Avarrant of arrest AArhich commands and secures the arrest, and possibly the imprisonment, of the person charged he quoad hoc acts ministerially; and if he issues a warrant which is absolutely void on its face, or a Avarrant. Avliich is valid, but not authorized by law to be issued by the justice in that particular case, he is civilly liable, just as a private citizen would be if he issued such a process, and thus procured wrongful arrests- and imprisonments. From such liability, the justice cannot hide beneath his judicial ermine.
The effect of our statute is to make also liable the official bondsmen of the justice for all such unlawful and unwarranted acts done “under color of office.” It is the “color of office” alone that makes the bondsmen liable, and, of course, they are not liable if the principal is not so liable. “Color of office” is necessary to render the surety liable as for ministerial acts, as well as is “color of jurisdiction” to excuse the justice as for judicial acts.
The law is Avell stated by the Supreme Court of NeAV York, in the case of Blythe v. Tompkins, 2 Abb. Prac. (N. Y.) 472: “The defendant having jurisdiction to issue warrants for the apprehension of persons for violating the provisions of the 'act to prevent intemperance, pauperism, and crime’ could not he made liable in a cíaúI action for deciding that a Avarrant should issue on insufficient evidence. In determining whether there was sufficient evidence to authorize the issuing of a Avarrant, he acted judicially; and he is not liable while thus acting, even if he erred in judgment. — Horton v. Auch*288moody, 7 Wend. 200; Tompkins v. Sands, 8 Wend. 462 [24 Am. Dec. 46]; [People v. Collins] 19 Wend. 56; [Harman v. Brotherson] 1 Denio, 537, 540; [Houghton v. Swarthout, 1 Denio] 590; Payne v. Barnes, 5 Barb. 467; [Weaver v. Devendorf] 3 Denio, 117; [People v, Sup’rs of Chenango County] 11 N. Y. 573. But in making the warrant and delivering it to the officer he acted ministerially. — Rogers v. Mulliner, 6 Wend. 597, 603 [22 Am. Dec. 546], 8 Wend. 462 [24 Am. Dec. 46]; Van Rensalaer v. Witbeck, 7 N. Y. 521; Houghton v. Swarthout, 1 Denio, 589. ‘Where ministerial duty is violated the officer, although for most purposes a judge, is still civilly liable for such misconduct. — Wilson v. Mayor of N. Y., 1 Denio, 599 [43 Am. Dec. 719]; Barb. Cr. Tr. 429, 430, and cases cited. The main question to be decided is whether the warrant is void on its face. If it is, then it will not protect the defendant, although he acted in good faith, and was authorized by the evidence before him to issue a valid warrant.”
The distinction between judicial and ministerial acts, and the liability as for each, is observed by all the text-writers and in all the decisions upon the subject. See Words and Phrases, Ministerial Acts, which collects the decisions. The same distinction between the two kinds of acts of the justice, and his liability for each, has been repeatedly recognized by this court. “Justices are not liable for their judicial acts, however erroneous, and there can be no inquiry as to the motive for such acts.— Coleman v. Roberts, 113 Ala. 323, 21 South. 449 [36 L. R. A. 84 59 Am. St. Rep. 111]; Heard v. Harris 68 Ala. 43; McLendon’s Case, 119 Ala. 518., 24 South. 721; Irion v. Lewis, 56 Ala. 190. But they and their sureties are liable for their wrongful ministerial acts done under color of office. — Coleman v. Roberts, supra; McLendon’s Case, supra; Kelly v. Moore, 51 Ala. 364; *289Mason v. Crabtree, 71 Ala. 479. A justice of the peace who affixes an official certificate of acknowledgment to a deed, which is false and fraudulent, is guilty of a gross usurpation, for which he is liable on his official bond to the party injured. — McLendon’s Case, supra. Where a justice of the peace commits a wrong under color of his office, which is a usurpation of judicial authority, he will not be protected from responsibility on his bond because he acted in a judicial capacity. — Ib.; Heard v. Harris, 68 Ala. 47; Woodruff v. Stewart, 63 Ala. 215.” 4 Mayfl. Dig. 2.
If the action in this case had been based solely upon a judicial act of the. justice, then the opinions of the majority (original, and that on the rehearing) would be applicable, or, at least, “colorably” applicable; but the action is for an unauthorized and illegal ministerial act done “under color of office.” Hence the majority opinions are not “colorably” applicable to the case in hand.
So far as I know, but few courts or judges, during the last century, have doubted or denied the soundness of the proposition that an action will not lie against a judge for a wrongful commitment, nor for an erroneous judgment, nor for any other act performed or done by him in his “judicial capacity.” Such absolution or exemption from liability is necessary to the independence, if not to the very existence, of the judiciary, as its sole duty is to pass upon and determine the rights and liberties of the citizens, among themselves, and as between them and the state, and if judges are to be held liable for their erroneous decisions we will soon have no judges, or, if any, they will all be bankrupts. Cases involving great interests, and the liberties and even the character of prominent parties, exciting the deepest feelings and prejudices, are constantly being determined by *290the courts. In such cases, there is often great conflict in the evidence, and.great doubt as to the law which should control the decision, imposing upon the judges the severest tests of labor, care, and of painstaking consciousness of responsibility. And often, in such cases, the losing party feels the keenest disappointment, and therefore the more readily looks to anything, rather than to the reasoning or the soundness of the decision against him, to explain the action of the judge or judges who decide against him. This intensified feeling of disappointment often finds vent in imputations against the character of the judges or of the court rendering the decision. This results, not always from bad motives of the judges or courts rendering the decisions, but is probably largely due to the imperfection of human nature. If an action would lie for the wrongful decision of a judge under such conditions, when the passions and prejudices of litigants are thus fired by disappointment, many litigants would not hesitate to ascribe any motive or character to the act or decision which was against them, their interest, liberty, or character, such is the frailty of human nature. For this reason, the laAV has seen fit to provide that judges shall not be liable for their judicial acts, though done corruptly and maliciously.
As was said by Justice Field, in Bradley v. Fisher, 13 Wall. 350, 20 L. Ed. 646: “In this country, the judges of the superior courts of record are only responsible to the people, or the authorities constituted by the people, from whom they receive their commissions for the manner in Avhich they discharge the great trusts of their office. ' If in the existence of the poAvers with AA'hich they are clothed as ministers of justice, they act Avith partiality, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by impeachment and suspended or remoAred from office. In *291some states, they may be thus suspended or removed without impeachment by a vote of the two houses of the Legislature.”
The only liability that attaches to an erroneous judicial act is when there is clearly no jurisdiction of the subject-matter, when, of course, an asserted authority is obviously usurped, and if the want of authority is known to the judge no excuse is permissible; but the manner in which, and the extent to which, the jurisdiction shall be exercised are questions peculiarly, if not exclusively, for the determination of the judge.
Justice Field (13 Wall. 353, 20 L. Ed. 646) quotes from the English justice, Blanc, that there is “a material distinction between a case where a party comes to an erroneous conclusion in a matter over which he has jurisdiction and a case where he acts wholly without jurisdiction;” and goes on to say that Judge Blanc “held that, where the subject-matter was within the jurisdiction of the judge, and the conclusion was erroneous, although the party should, by reason of the error, be entitled to have the conclusion set aside, and to be restored to his former rights, yet he was not entitled to claim compensation in damages for the injury done by such erroneous conclusion, as if the court had proceeded without any jurisdiction.”
While the immunity from liability of judgment as for judicial acts is almost absolute, no such immunity exists as for their ministerial acts. As to such latter class of acts, judges are liable, just like all other public officers ; and to protect the people against the oppression of officers statutes have been enacted requiring certain officers to execute official bonds, conditioned to pay all such damages as may. result to the people or to the state if the officer shall not faithfully perform and discharge the duties of the office. Among the officers required to give *292such bonds are justices of the peace and probate judges. While they and their bondsmen are not liable as for acts which are strictly judicial, if done within their jurisdiction, they are liable as for the ministerial acts, as such, just as are sheriffs and other officers.
The distinction which I have endeavored to draw between “judicial acts” and “ministerial acts” is clearly observed by all the cases cited and relied upon by the majority. The case of Bradley v. Fisher, supra, which the majority say is the leading case, was based solely upon “judicial acts” by reason of the “willful, malicious, oppressive, and tyrannical acts and conduct” of a judge in depriving the plaintiff of the right to practice law; that is, in disbarring the plaintiff from, such practice. The other leading case relied upon is the New Jersey case quoted from at length. While the facts in that case are very similar to those in the case at bar, it is clearly distinguishable from this upon the sole ground of judicial action and ministerial action. There was no question in that case as to the validity of the warrant of arrest, but only as to whether it was lawfully issued under the affidavit and the evidence before" the justice when he issued it. The affidavit is set out in that case, but the warrant is not; but the statement of facts says that the justice thereupon “issued his warrant in the ordinary form.” If the warrant in that case had been void, as it was in this, the justice would have been held liable under the opinion there.
Chief Justice Beasley, in the case so much relied upon and cited by the majority (44 N. J. Law, 660, 43 Am. Rep. 412), says: “If a magistrate should, of his own motion, without oath or complaint being made to him, on mere hearsay, issue a warrant and cause an arrest for an alleged larceny, it cannot be doubted that the person so illegally imprisoned could seek redress by a suit *293against, snch officer. It would be no legal answer for the magistrate to assert that he had a general cognizance orer criminal offenses; for the conclusive reply would be that this particular case was not, by any form of proceeding, put under his authority.”
So in the case at bar, if the justice had issued a proper warrant for “a trespass after warning,” or for a threatened breach of the peace, then his liability, if any, would have been as for a judicial act; but the warrant he issued was absolutely void, charging no criminal offense known to God or man; and, had he taken a proper affidavit and fully examined the affiant and his witness under oath, and their evidence had shown conclusively that a dozen criminal offenses had been committed, and that the person arrested was guilty of all, this would not have warranted him in issuing a warrant void on its face, and which was intended to, and did, procure the arrest and imprisonment of this plaintiff. Suppose the affidavit or other proof before the justice should show the offense of larceny, this would not authorize the issuance of a valid warrant charging murder, and would certainly not authorize or justify the issuing of a void warrant.
But the justice in this case is in a worse condition; the affidavit he took was as void as his warrant, and he failed to examine any witness before issuing the warrant, as the statute directs, but proceeded to issue an ■ absolutely void warrant, and now attempts to escape liability by hiding under his judicial robes as for this unwarranted and illegal ministerial act of issuing a void warrant, and then directing the sheriff or constable to arrest and imprison the plaintiff under the void process issued by him, thus depriving the plaintiff of his liberty, without due process of law, and rendering the sheriff or constable absolutely liable for obeying *294his orders and executing his proce-s, as the law directs such executive officer to do.
What was said by the Supreme Court of New York, in Blythe v. Tompkins, 2 Abb. Prac. 472, is very appropriate here. The officer who issues or executes process must see that it is ‘valid on its face, or he is liable for his acts under it. The law does not throw any protection around an officer or person who attempts to arrest by an illegal warrant.
The writ or warrant must not be deficient in the frame of it. It must at least be lawful on its face. It would be strikingly unjust to hold one officer liable for a ministerial act in executing process, but excuse the officer Avho issued it, AAdro was charged Avith the duty and was under bond to issue it correctly. The latter is presumed to be, and should be, more competent to judge of' the validity of the process which he himself issues than the former, Avhose duty the laAV makes it to execute all process issued by the latter. If the justice acted judicially in issuing the Avarrant, there might be some force in the reasoning of the majority opinion; but, as all the aúthorities, including our own, hold this act to be a ministerial one, I cannot see how the judicial immunity can protect the justice as to this act.
A justice AA’ho renders’ an erroneous or Aroid judgment and sentence may not be liable therefor if the subject-matter and the party Avere within and under his jurisdiction; but if, in addition to that, he issues a Amid mittimus, committing the defendant to jail, or to the AA-hipping post, or to be hung, as a justice once did in this state, and the mittimus should be executed, I apprehend there Avoulcl be no doubt as to his liability as for this act. The same is true as for his rendering a Amid judgment in a civil action. I-Ie might not be liable if the judicial act AAras within his jurisdiction, or “colorable” *295so, if you please to so term it; but if be should thereafter issue a void execution, and the defendant's, property should be sold thereunder wrongfully, I apprehend that there would be no doubt as to his liability in that instance. The issuance of a warrant upon affidavit or •other ex parte judicial examination as to probability of guilt, is as much a ministerial act as is the issuance ■of an execution or mittimus after trial and judgment.
It was the warrant that caused the arrest and imprisonment of the plaintiff in this case, not the void affidavit, nor the failure to examine affiant or other witnesses before its issuance, or before any erroneous judicial .judgment. If the warrant was void, as the court holds it was, it could not be cured because there was a sufficient affidavit or preliminary proof, and, if so, certainly it was not cured because there was a void affidavit and no preliminary examination of witnesses, as the statute contemplates and provides for.
To my mind, the only plausible theory upon which the decision and conclusion of the majority can rest is upon one thus far not suggested, though two opinions have thus far been written. That plausible, theory is that the affidavit and warrant are not void, but valid, •or at worst merely irregular or voidable only; but the trouble with this theory is that it runs counter to both the facts.and the record in this case, as well as to scores •of decisions of this court, and to hundreds, if not to thousands, of those of other courts. Many of these are cited in the opinion of Justice Somervilre, and many in the brief of the appellant. I will cite here only a few, in which others are cited, showing beyond doubt that both the affidavit and the warrant are absolutely void for all or any purposes: — Duckworth v. Johnston, 7 Ala. 578; Crumpton v. Newman, 12 Ala. 199, 46 Am. Dec. 251; Miles v. State, 94. Ala. 106, 11 South. 403; *296Johnson v. State, 82 Ala. 29, 2 South. 466; Monroe v. State, 137 Ala. 88, 34 South. 382; Butler v. State, 130 Ala. 127, 30 South. 338.
Any doubt that I might otherwise have upon the questions whether or not this warrant was void on its face, and whether this court should now decide the inquiry affirmatively and reverse the case, is removed by what Ci-iilton, (1 J., said of a warrant which much more nearly approached validity, or was much more “colorable” of jurisdiction, than this one. In that case, the great Chief Justice said: “Is the warrant in this case void upon its face? Does it show, upon its face, that the justice had no jurisdiction of the complaint, the substance of which the law requires should be stated in it? — Code, § 3341. Upon our first examination, we thought it was not void, but informal merely. Upon having our attention more particularly called to it by the counsel for the prisoner, we are fully satisfied that our first impression was wrong, and that it is wholly void. * * * The warrant in this case appears, upon its face, to be predicated upon the affidavit of Mary Noles, wife of the prisoner, which merely states that she ‘is afraid that her husband, Joseph Noles, of said county, laborer, will heat, wound, maim or kill her, or do her some bodily hurt.’ It sets forth no other cause of complaint, than in the recital of this .oath, and proceeds ‘these are therefore to command you,’ etc. This statute, being- in restraint of liberty and penal, must be strictly construed; that is, it may not he enlarged, by construction, beyond the plain import of the terms in which it is couched. We are aware that this looks like a technical ground upon which to reverse a cause of this grave importance; hut it is our duty to decide the law, irrespective of consequences, and being-satisfied that the warrant is void we have no alterna*297t-ive but to reverse tbe sentence and remand the cause, that the prisoner may be again tried.” — Noles v. State, 24 Ala. 696, 697.
To recapitulate: The error of the majority is that they treat the case as.if the act of the justice complained of was a judicial one, when clearly it was a ministerial one. It was not the taking of the void affidavit that injured and damaged plaintiff, and it was not of that he complained. It ivas issuing the void warrant and placing it in the hands of the executive officer by the judicial officer, which caused plaintiff’s arrest and incarceration. This was ministerial and not judicial, though, done by a judge or justice of the peace. If a sufficient affidavit would not have saved him from liability as for this wrongful and void ministerial act, then certainly a void though colorable one could not. If the only wrong here complained of had been a judicial act, I would not contend that this justice was civilly liable; nor do I understand that plaintiff’s counsel has ever so contended. It is liability for a void ministerial act that is sought to be enforced, that is given by statute; and I do not think that the court ought to thus take it away.
Justices of the peace and their sureties are not the only officers or parties the statute makes liable; but it extends the liability to other judges, and has been enforced by this court even against probate judges. In the case of Grider v. Tally 77 Ala. 422, 54 Am. Rep. 65, this court drew clearly the distinction I am trying to draw here between judicial and ministerial acts, and defined the liability of the officers and their sureties as for each. This court in that case said: “It is an unquestioned rule, founded on the public benefit, the necessity of maintaining the independence of the judiciary, and its untrammeled action in the administration *298of justice, that a judge cannot be held to answer in a civil suit for doing, or omitting or refusing to do, an official act in the exercise of judicial power. I-Tis responsibility for the manner in which he discharges the high trusts committed to him is to. the sovereignty from whom he derives his authority. It is, also, an undisputed rule that an officer who is charged with the performance of ministerial duties is amenable to the law for his conduct, and is liable to any party specially injured by his acts of misfeasance or nonfeasance. When the law assigns to a judicial officer the performance of ministerial acts, he is as responsible for the manner in which he performs them, or for neglecting or refusing to perform them, as if no judicial functions were intrusted to him. The boundary of his judicial character is the line that marks and defines his exemption from civil liability. Our law, organic and statutory, confers on the probate judge .large judicial powers, and there is also assigned to him the performance of many acts merely ministerial; he is both a judicial and a ministerial officer. In Thompson v. Holt, 52 Ala. 491, it is observed: ‘A bond was, by legislation, demanded from him as a guaranty for diligence and fidelity in the performance of his ministerial duties, as it is exacted from other mere ministerial officers. It is not a guaranty for his integrity and fidelity as a judge. For this no other security is demanded from him than that demanded from all other judicial officers — his official oath, and the sense of responsibility which the power and dignity of the office inspire. The official bond stands as an indemnity against his errors, or his willful misconduct, as a ministerial officer only,’ etc.”