(concurring).
I agree with my colleagues that the question of immunity from personal liability under the Civil Rights Act cannot be determined by local state dcci-sions to the extent that it has been already determined by federal law. I consider unfortunate the failure of the majority opinion to state the corresponding rule that, when federal law is in the process of being developed on new questions such as those arising under the Civil RigMs Act and has not taken shape -with reference to a specific problem such as here presented, the courts are entitled to have recourse to the state adjudications as a basis of decision. This rule is followed in federal cases,
The particular field of immunity under the Civil Rights Act for official acts 0f municipal officers is one upon which the Supreme Court has not spoken, Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954; 83 L.Ed. 1423, did not cover it. It js significant that neither Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, nor Cobb v. City of Malden, 1 Cir., 202 F.2d 701 (principally relied upon by my colleagues), cited the Hague case. Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, involves no question 0f judicial immunity and has no bearing,
. . , . . The P.r+fc\al m the Cobb case[ Wntt®n by +Ju+^+e Harflgan’ COm' “ent+s °\the,fa+C* that’ whlle T1' plaint sets forth a cause of action ,, , „ created by Congress and hence the limits f lia.blbíy T be governe? by feÍeral !aw’ m.fe abs+enc/ any clear authoríy th" pomt °f tbe ?lty ?, respoifbl1lty’ the Massachusetts law “properly defines the limits of liability which Congress intended.” This is the only hold-ing of the Cobb case in which all three *316judges concurred. Judge Hartigan quotes from Picking v. Pennsylvania Railroad Co., 3 Cir., 151 F.2d 240, which points out that under R.S. § 1979 the Congress created a field “upon which a state officer could not tread without being guilty of trespass and liable in damages. The concept is clear enough but the boundaries of the forbidden territory are ill-defined.” Judge Magruder recognizes the perplexities raised by these questions, Cobb v. City of Malden, supra, 202 F.2d 706, 707. He calls the rule upon which the majority of this court relies so strongly here “a roughly accurate generalization.”
Tenney v. Brandhove, supra, in ruling upon the immunity of state officers, and the Cobb case, supra, both rely upon state law and state adjudications as a basis of decision. Tenney v. Brandhove, supra, 341 U.S. 373, 71 S.Ct. 783, cites Coffin v. Coffin, 4 Mass. 1, 27; Judge Magruder in making his “roughly accurate generalization” relies upon no federal case, but upon two state cases.
Cuiksa v. City of Mansfield, 6 Cir., 250 F.2d 700, does not involve the immunity of the members of a municipal legislature. Neither Tenney v. Brandhove, supra, nor the Cuiksa case, supra, an-nounees any doctrine at variance with the general rule on these questions in numerous state decisions. 43 Am.Jur. 88, Public Officers, Section 275; 37 Am. Jur. 886, Municipal Corporations, Seetion 264 and cases cited.
The problem here is complicated by the merger of functions performed by a Home Rule city under the Michigan constitution, art. 8, § 21, and the Michigan statutes, Comp.Laws 1948, § 117. 1 et seq. None of the cases cited in the majority opinion rule on the question of enforcement of an ordinance such as that involved here. The question of enforcement is one of the factually important features of this case.
In the absence of a federal case precisely covering the various phases of this action, it seems proper for this court, as well as for the court of the First Circuit, to rely upon not only the persuasive authority but also the precedents of state cases covering similar situations. In this connection it may be noted that under the law of Michigan an ordinance of a Home Rule city carries the same presumption of constitutionality as applies to statutes passed by the legislature. 1426 Woodward Avenue Corporation v. Wolff, 312 Mich. 352, 20 N.W.2d 217. The immunity of commissioners of a Michigan Home Rule city by analogy would seem to be the same as that of members of the State Legislature of Michigan. Particularly pertinent on the question of enforcement, I think, are the following decisions: Municipal activities in general, includ-mg executive acts, are not subject to judicial control if they are legally authorized. Veldman v. City of Grand Rapids, 275 Mich. 100, 265 N.W. 790.
This case declares that the courts may not inquire into motives prompting the acts and conduct of a City Commission in making a contract that it was legally authorized to make. The Veldman case involved an executive act performed by municipal officers vested with discretion. xt held that a court of equity could not interfere in municipal^ affairs unless a malicious intent, capricious action, or corrupt conduct was shown,
Under the early Michigan law various municipal activities were held to be judicial and therefore immune from attack in an action for money damages because of official acts honestly performed, Amperse v. Winslow, 75 Mich. 234, 244, 42 N.W. 823; Wall v. Trumbull, 16 Mich. 228, 235. The opinion in Wall v. Trumbull, written by Judge Cooley, was announced in 1867. The acts classified in these cases as judicial, nonapproval of a bond by a councilman (Amperse v. Winslow) and ruling on claims by township supervisors (Wall v. Trumbull) might today be considered to be acts of administrative officials vested with wide discretion, or quasi-judicial act§.
Cf. Ambrozich v. City of Eveleth, 200 Minn. 473, 274 N.W. 635,112 A.L.R. 269 ; R. & A. Realty Corp. v. Pennsylvania R. R. Co., 3 A.2d 293, 16 N.J.Misc. 537; Tillotson v. Fair, 160 Kan. 81, 159 P.2d 471.