The opinion
WILSON, Justice
(dissenting).
I respectfully differ. The opinion applies the wrong criterion in this case, and in my opinion directly opposes the settled law throughout this country, at common law and in Texas. The majority subjects the action of a judge to the test of whether his act is judicial or ministerial. This is possibly a proper test when the judge or justice of the peace is acting in an administrative or quasi-judicial capacity as in Rains v. Simpson or Jarnagin v. Garrett, but in each of those cases liability was denied.
The true test however, in a judicial proceeding, is whether the judge or justice is acting within the jurisdiction. This, in truth, is the actual holding in Rains v. Simpson. There the justice of the peace was not acting in a judicial proceeding. He was performing an administrative function as the head of the present equivalent of the commissioner’s court in refusing to approve a tax collector’s bond. He was not, in the present sense, acting in a judicial proceeding. Nevertheless, the Supreme Court first announced the guiding rule: “It was a settled principle at the very foundation of well-ordered jurisprudence that every judge, whether of a higher or lower court, in the exercise of the jurisdiction, conferred on him by law, had the right to decide according to his own free and unembarrassed convictions, uninfluenced by any apprehension of private prosecution.” No sooner had the court announced the guide than it quoted Judge Cooley, who also fixed the touchstone as-being whether the officer was “acting within the limits of his jurisdiction.” The only real answer which the court then gave to-the only question involved is contained in the last sentence of the opinion: “The action then, of the County Court being a judicial act in the exercise of the jurisdiction conferred by statute, the exceptions of 1 the defendant’s were properly sustained.”' It is important to note the court there spoke of a judicial (discretionary) “act”, and not a judicial proceeding.
We do not have to speculate as to what our early Supreme Court regarded as the determining factor of judicial immunity. The court consisting of no less an assemblage than Hemphill, Wheeler and Roberts,, speaking through the latter in Butnpus v. Fisher, 21 Tex. 561 , twenty-one times in the course of the opinion reiterates the essential element of whether “the justice of the peace had jurisdiction.” There the justice of the peace was sued for an act committed in the course of a judicial proceeding. The entire case turns on decision as to whether the plaintiff was committed “upon a charge of which the justice had jurisdiction.” The test here applicable was clearly stated: “if the charge upon which plaintiff was tried was simple assault and battery, the justice clearly had jurisdiction and the facts showing no malice, he would clearly not be liableThe court then consumes three pages to demonstrate he did have jurisdiction, and after reviewing the common-law development of immunity as dependent on jurisdiction, held that justices of the peace were on the same footing as judges of superior courts; that they were amenable for breach of responsibility only as were judges of superior courts; and that unless it affirmatively appeared of record they had no jurisdiction of the judicial proceedings in which they acted, they were not civilly liable. As to the present holding, that great court said, “Public policy, and the nature of their powers and du *445 ties and the order of legal capacity that must be here employed to fill such an office, all forbid the application of such a rule to justices’ acts.” The entire decision turned on existence vel non of jurisdiction.
In 31 Am.Jur., Justices of the Peace, Sec. 28, p. 228 much of the opinion in Rains v. Simpson is quoted as a predicate for the rule I believe is controlling: “Where a justice of the peace acts fully within his jurisdiction of the subject matter and has acquired jurisdiction of the person in the particular case, he is not liable for acts done in the case.” The converse of this rule, for the universality of which an inspection of the footnote is sufficient, is stated, Id. p. 229: “The generally accepted rule is that a justice of the peace is civilly liable when he acts without jurisdiction of the person and without general jurisdiction of the subject matter.” The identical test is paraphrased in 26 Tex.Jur., p. 800, Sec. IS, i. e., when he is “acting within his jurisdiction.” Rains v. Simpson is among the authorities cited.
In Mabry v. Little, 19 Tex. 337 , Justice Wheeler held that even if the unlearned justice of the peace had no jurisdiction, if the plaintiff submitted to his jurisdiction he waived the trespass and an action for damages would not lie. In Anderson v. Roberts, Tex.Civ.App., 35 S.W. 416 , 417, the rule is stated that even if the justice improperly determines he has jurisdiction, he cannot be held liable for his acts for “When the state confers judicial powers upon an individual it confers him with full immunity from private suits.” The general rule is similarly stated in 51 C.J.S. Justices of the Peace § 19, p. 36, and 173 A.L.R. 802 . The jurisdictional test has been reiterated by such venerable authorities as Coke, Bacon, Blackstone, Kent and the ancient Dalton’s “Countrey Justice.”
In 1613 Coke, in the case of the Marshal-sea, 10 Coke Rep. 76a, summarized the holdings in the earlier Year Books relating' to immunity: “a difference was taken when a court has jurisdiction of the cause, and proceeds inverso ordine or erroneously. There no action lies. But when the court has not jurisdiction then the whole proceeding is coram non judice and actions will lie.”
The early Supreme Court of Texas simply epitomized the common-law rule and adopted it in Texas. “From the Year Books to the present day, this distinction between an abuse of jurisdiction and an absence of jurisdiction has been maintained. Indeed, the fact that from the 16th to the 19th centuries a large part of the local government of the country was carried on by justices of the peace acting under judicial forms, made the preservation of this distinction and its consequences a necessary safeguard to the liberty of the subject.” VI. Holdsworth, History of English Law 240.
Appellant does not suggest the justice court had no jurisdiction. He in fact invoked it, moved to quash the complaint and called for a jury. He complains only of erroneous action of the justice of the peace within his jurisdiction. I would affirm.