(dissenting).
I respectfully dissent.
Briefly stated I can neither accept the majority’s statement to the effect we have heretofore adopted a position with regard to civil liability of a justice of the peace for malicious or corrupt conduct, nor agree with the rule the majority here finally adopts.
At the outset I disagree with the conclusion stated by the majority as follows: “Should judicial immunity apply in the face of a chárge of malice and corruption ? The early Iowa cases left this question in doubt, Henke v. McCord, 55 Iowa 378, 384, 7 N.W. 623, 625; Londegan v. Hammer, 30 Iowa 508, 512; Gowing v. Gowgill, 12 Iowa 495, 498; but Iowa now recognizes the generally accepted rule is that the motives for the action are not determinative. Thompson v. Jackson, 93 Iowa 376, 382, 61 N.W. 1004, 1006 [1895] * * (Emphasis supplied).
It is not to me so apparent the Thompson case, supra, actually settled the issue at hand in this state. In that regard I refer to McGrew v. Holmes, 145 Iowa 540, 543, 124 N.W. 195, 196 [1910], where this court stated: “It seems to be the better opinion, also, that liability does not exist even where the judicial act is malicious or corrupt. But our own cases are not in entire harmony on that subject, and we do not find it necessary to determine the question here.” (Emphasis supplied).
It must be conceded other jurisdictions lend substantial support to the rule here finalized by the majority. On the other hand that alone is not determinative, it being for us to here resolve and prescribe the rule to be applied in Iowa.
To that end I would adhere to the view expressed in Gowing v. Gowgill, 12 Iowa 495, 498 [1861], where we said: “We understand the rule to be, that where an officer acting in a judicial capacity errs in his judgment, he is not liable, but where he acts through favor, fraud or partiality, or knowingly commits a wrong by virtue of his office, he is liable. In the case of The State on the relation of Conolly [Conley] v. Flinn, 3 Blackford [Ind.] 72, it being an action upon the bond of a justice of the peace, in which the justice was charged with illegal, oppressive conduct, the court say, ‘for a judicial act within the jurisdiction of a justice, though he should act erroneously or illegally, he is not liable, unless he acts from impure or corrupt motives. Where, however, he acts corruptly liability attaches’
“The conditions of the bond are such as will make the sureties liable for such conduct. The bondsmen expressly agree that their principal shall act without fear, favor, fraud or oppression; and where he does so act, it is in direct violation of the conditions of his bond. The petition in this case distinctly charges the defendant with favor, fraud and oppression. This charge is admitted by the demurrer. If a justice of the peace is permitted so to act, and such conduct is tolerated by law, it brings the judicial department into merited odium and contempt.” (Emphasis supplied). See also Horne v. Pudil, 88 Iowa 533, 55 N.W. 485, and Lanpher v. Dewell, 56 Iowa 153, 9 N.W. 101.
*753Furthermore, that concept has been espoused by the Illinois courts since 1859. See Garfield v. Douglass, 22 Ill. 100; Grossman v. Davis, 117 Ill.App. 354; and Stift v. Lynch (7 Cir.), 267 F.2d 237, 240.
In what is apparently the most recent case in that jurisdiction, People for Use of Jones v. Leviton, 327 Ill.App. 309, 64 N.E.2d 195, 199, the court says in substantial part: “While the law is settled that a Justice of the Peace is not liable for damages for any error or irregularity in the performance of his duties within the scope of his jurisdiction, it is also the law in this state that a Justice of the Peace, even though he is acting within the scope of his jurisdiction, can be made to answer civilly or criminally if he has acted maliciously and corruptly in the performance of his duties or has falsified his record.”
Trial court found, and the majority admits, defendant in the instant case acted maliciously or corruptly in attempting to secure payment of the subject check and thereby obtain benefit of a 20 percent collection commission in addition to any fee he was lawfully entitled to receive. See sections 601.128-601.131, Code, 1966.
Under these circumstances it is to me evident defendant here adopted a dual position in that he, as a justice of the peace, acting officially in a criminal case, also assumed the extraneous role of a private bill collector, using the former as a club to enhance the latter. Stated otherwise, defendant purposely attempted to fasten coloration of his public office to purely personal remunerative activities.
It is to me apparent any cloak of official immunity enjoyed by defendant as a justice of the peace should not be so extended as to insulate him from civil liability for such extra-curricular corrupt activities as are disclosed in the case at bar. Furthermore, I contend the rule of stare decisis does not demand adoption of the majority view.
On the immunity issue I would affirm.
SNELL and BECKER, JJ-, join in this dissent.