(concurring).
I concur in the opinion of the court to the effect that we should affirm the j udgi *706ment below in so far as it dismissed the complaint against the City of Malden. Also I acquiesce, somewhat reluctantly, in the conclusion that the judgment should be reversed, so far as it dismissed the complaint, in its tort aspect, against the individual defendants. But, I think it deserves to be emphasized, how unlikely it is that the plaintiffs will be able to recover judgment, upon trial of the case against the individual defendants, in view of what the plaintiffs will have to prove in order to make out a cause of action in tort.
This is not the first time that a court has been perplexed by, the apparently sweeping and unqualified language of the old Civil Rights Act. 8 U.S.C.A. § 43 seems to say that every person in official position, whether executive, legislative, or judicial, who under color of state law subjects or causes to be subjected any person to the deprivation of any rights secured by the Constitution of the United States, shall be liable in damages to the person injured. . The enactment in terms contains no recognition of possible defenses, by way of privilege, even where the defendants may have acted in good faith, in compliance with what they believed to be their official duty. Reading the language of the Act in its broadest sweep, it would seem to make no difference that the conduct of the defendants might not have been tortious at common law; for the Act, if read literally, creates a new federal tort, where all that has to be proved is that the defendants as a result of their conduct under color of state law have in fact caused harm to the plaintiff by depriving him of rights, etc., secured by the Constitution-of the United States.
Fortunately, Tenney v. Brandhove, 1951, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, has relieved us of the necessity of giving the Civil -Rights Act such an awesome and unqualified interpretation. In that case the defendants were members of a legislative committee of the California legislature. They were sued for damages upon allegations that their acts in the course of conducting the proceedings of a. legislative fact-finding committee on un-American activities had resulted in- subj ecting the plaintiffs to the deprivation of various rights and privileges secured by the Constitution of the United States. It was held that the complaint should be .dismissed; that the broadly expressed terms of the Civil Rights Act were not intended to deprive state legislators of their pre-existing and well-established immunity from civil liability for acts done within the sphere of legislative activity. Further, the Court said that even the claim of an unworthy purpose does not destroy the privilege. “The privilege would be of little value if they [the legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives.” 341 U.S. at page 377, 71 S.Ct. at page 788.
So far as concerns federal tort liability for acts done under color of state law, I think the Supreme Court in effect has held, in Tenney v. Brandhove, that the Act merely expresses a prima facie liability, leaving to the courts to work out, from case to case, the defenses by way of official privilege which might be appropriate to the particular case.
In the case at bar the defendant members of the city council were exercising legislative functions, on a subordinate level. But it seems that, as respects members of similar subordinate legislative bodies, there has not been such a general and unquestioned recognition at the common law of an absolute immunity from civil liability for acts done by such persons- in their official capacity, comparable to the complete immunity accorded to members of state legislatures. Certainly so far as concerns the torts of libel and slander, members of a municipal council and similar subordinate legislative bodies do not have an absolute immunity from liability for defamation in the course of the performance of, their legislative functions. They have only a qualified privilege, which may be forfeited if the defamation is not in good faith or published for an improper purpose. See Am.L.Inst., Rest, of Torts § 590, and Comment c; Prosser on Torts 828-29 (1941), and cases cited. I know of no reason why their immunity from liability for harms other than defamation should be any wider. *707Hence I take it as a roughly accurate generalization that members of a city council, and other public officers not in the exceptional category of officers having complete immunity, would have a qualified privilege, giving them a defense against civil liability, for harms caused by acts done by them in good faith in performance of their official duty as they understood it. See R. & A. Realty Corp. v. Pennsylvania R. R. Co., 1938, 3 A.2d 293, 16 N.J.Misc. 537; Tillot-son v. Fair, 1945, 160 Kan. 81, 159 P.2d 471. But on ordinary principles of the law of torts, I think that members of a city council would be liable in damages for pecuniary harm to a plaintiff intentionally inflicted by action, under color of official authority, which the defendants subjectively realized would result in depriving the plaintiff of a right or privilege secured by the Constitution of the United States. Cf. Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F.2d 815. The privilege by way of defense to the prima facie federal tort defined in 8 U.S.C.A. § 43 should certainly be no broader than the privilege that would be accorded under the common law.
It follows that when this case goes back for retrial of the tort action against the individual defendants, the plaintiffs will not be able to recover unless they establish that the defendants, when they took the actions complained of, under color of the referendum provision of C. 29, § 1, Mass. Acts of 1950, realized that they were subjecting plaintiffs to harm by an unconstitutional impairment of the obligation of their contracts with the City. It may be, indeed, that the present complaint has not alleged with sufficient particularity this crucial state of mind on the part of the defendants; but in this respect I have resolved doubts in favor of the plaintiffs, under the rule that allegations of a complaint should be read liberally and indulgently, upon a motion to dismiss. I don’t suppose for a moment that plaintiffs will be able to establish what it is necessary for them to show in order to recover damages. Cf. Burt v. City of New York, 2 Cir., 1946, 156 F.2d 791, 793. For that reason perhaps the case will never come to trial. There is ample procedure under state law by which plaintiffs’ substantive rights under their alleged contracts may be vindicated in the state courts. I cannot escape the feeling that this case does not belong in the federal courts.