cured another bail bond and was released; that, on March 18th, the bondsmen on said second bail bond surrendered plaintiff to the sheriff and he was imprisoned in the county jail from that time until about noon of the nineteenth day of March, 1915. On said last-named date, plaintiff applied to the supreme court for a writ of habeas corpus, which was granted, and plaintiff was released upon giving bail; that, on the fifth day of April, 1915, the supreme court ordered the release of plaintiff "by reason of there not having been filed with said justice of the peace any complaint setting forth any facts showing that this plaintiff had been guilty of any public offense." It is then alleged "that defendant was wholly without jurisdiction to issue said warrant of arrest or to order this plaintiff held to bail or to be committed," and that said arrest and imprisonment were "without any right or authority so to do."

Attached to the amended complaint and made part thereof is a copy of the complaint filed with defendant as justice of the peace upon which said warrant of arrest was issued, which complaint, after the entitlement thereof, reads as follows:

"Personally appeared before me this 9th day of March, 1915, W. C. Dorris, of Bakersfield, county of Kern, state of California, who being first duly sworn, complains and accuses Matthew S. Platz of the crime of common barratry, committed as follows: That the said Matthew S. Platz, on the dates hereinafter mentioned, at Bakersfield, and in said county of Kern, state of California, did wilfully, unlawfully and maliciously engage in the practice of exciting and did excite groundless judicial proceedings in the following manner and instances:

"1. Said Matthew S. Platz, on or about the 9th day of April, 1914, did institute and excite a certain attempted appeal from a judgment of the superior court of the state of California in and for the county of Kern, in an action entitled People of the State of California on the relation of W. C. Dorris, Plaintiff, v. James McKamy, Defendant, being numbered therein as Civil Action No. 9036, which said appeal was attempted to be taken to the supreme court of the state of California, and was groundless and void, as the said Matthew S. Platz then and there well knew;

"2. That thereafter, on or about the 7th day of October, 1914, the said Matthew S. Platz initiated and excited an at

tempted proceeding in the supreme court of the state of California against the state of California by James McKamy, Petitioner, and against the superior court of the State of California, and sought to obtain in said proceeding last mentioned, a writ of review of the proceedings and said action No. 9036, in the superior court of Kern county, which said application for said writ of review in said supreme court was then and there groundless, as the said Matthew S. Platz then and there well knew; that thereafter said writ of review was denied by an order of the supreme court of the state of California.

"3. That thereafter, on or about the 14th day of February, 1915, the said Matthew S. Platz initiated and excited an attempted proceeding in the supreme court of the state of California, wherein and whereby the said Matthew S. Platz filed a petition to vacate the order entered by said supreme court, refusing the writ of review, which proceeding was then and there groundless, as the said Matthew S. Platz then and there well knew; that said petition was thereafter denied by said supreme court of the state of California.

"4. That thereafter, on or about the 3rd day of November, 1914, said Matthew S. Platz excited and caused to be instituted a certain proceeding in the district court of appeal of the state of California, in and for the second appellate district, entitled, James McKamy v. W. V. Matlack et al., as trustees of the city of Bakersfield, in which proceeding the said Matthew S. Platz sought to obtain and have issued out of said court a writ of prohibition directed to the defendants therein. and prohibiting them from filling a vacancy in the office of the city marshal of the said city of Bakersfield, which said application was then and there groundless and void and vexatious, as the said Matthew S. Platz then and there well knew; "And all of said proceedings above described were excited, instituted and initiated with corrupt and malicious intent to vex and annoy the enforcement of the judgment in said action No. 9036 of said superior court of Kern county, and to vex and annoy the superior court of said county and the judges thereof and the city trustees of the city of Bakersfield; all of which said acts were instituted and commenced while the said Matthew S. Platz was an attorney at law duly and legally admitted to practice in the courts of the state of California. Contrary," etc.

ཁག་་ པ

The demurrer interposed to said amended complaint was upon the general ground and also upon the special ground that certain allegations thereof were uncertain.

The ruling of the court below on the demurrer raises the question whether an individual may maintain an action for damages against a public officer clothed with judicial powers when, in the purported exercise of such powers, such officer does or performs some act in excess thereof which results in injury to the complaining party.

As the complaint herein shows, an attempt was made to charge the plaintiff before the defendant, as a justice of the peace, with the crime of common barratry, as the same is defined by section 158 of the Penal Code. Said section reads: "Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding five hundred dollars."

Section 159 of said code provides: "No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy."

The alleged complaint filed before the defendant, as a justice, against the plaintiff wholly and, to the legal mind, quite obviously failed to state the offense denounced by section 158 or any offense known to the laws of this state. It will be observed that the document upon which the warrant authorizing the arrest of the plaintiff was issued and upon which the latter was in fact placed under arrest merely sets forth that, in four different instances, the plaintiff, as an attorney at law, unavailingly sought as many different legal remedies in a judicial adjudication against a client of his as to the same subject matter. Manifestly, it is no crime nor, indeed, is it in contravention of the common ethics of the profession for a lawyer to resort to and exhaust every available remedy known to the law to relieve a client of the consequences of any judgment recovered in a court against him, and the complaint filed in the justice's court and purporting to charge him with the violation of sections 158 and 159 of the Penal Code clearly discloses that he did no more than this in the matter as to which it was therein alleged that his professional activities brought him within the ban of said sections. The complaint here states, as we have seen, that the supreme

court, in a proceeding upon habeas corpus, held that the complaint filed before the justice of the peace (the defendant) utterly failed to state any public offense against the plaintiff, and so ordered his discharge from arrest under the process issued upon said complaint, and we find, from a certified copy of the proceedings in that case before the supreme court, that the allegation of the complaint in that regard is correct. But, while all that has been said of the complaint is true, may it be held that the defendant, in a legal sense, exceeded the jurisdiction or powers with which the law clothes justices of the peace when he issued the warrant of arrest against the plaintiff under the circumstances disclosed by the complaint herein i

The crime of common barratry, by reason of the nature and extent of the punishment prescribed therefor, is what may be and often is termed, in contradistinction to indictable misdemeanors, a simple misdemeanor, of which it will, of course, be conceded justices' courts have general jurisdiction. (Pen. Code, sec. 1425; People v. Sacramento Butchers' Assn., 12 Cal. App. 471, 485, 486, [107 Pac. 712].)

Section 1426 of the Penal Code provides: "All proceedings and actions before a justice's or police court, for a public offense of which such courts have jurisdiction, must be commenced by complaint under oath, setting forth the offense charged," etc. When, therefore, a complaint is filed before a justice of the peace charging or purporting to charge a person with a public offense of which the justice's court has jurisdiction, it then becomes the duty of the justice, in the exercise of the judicial powers with which he is clothed, to determine, upon an examination of the complaint, whether a public offense is therein stated against the party so sought to be charged. Upon the determination of this question rests the determination of the further question whether the justice is legally authorized upon the document filed as such complaint to issue his warrant for the arrest of the person of the party so charged or attempted to be charged. Since, then, he must pass upon the sufficiency of the complaint to state a public offense of which his court has jurisdiction for the purpose of determining whether he is by said complaint given the authority to issue a warrant of arrest, in doing so, as well as when issuing the warrant, if he concludes that a public offense cognizable in his court has been committed by

the person named in the document as the accused, he necessarily exercises the judicial powers with which the law invests his court as fully and completely as when, in presiding at the trial of a charge of misdemeanor of which his court has jurisdiction, he rules upon questions involving the admissibility of evidence. The acts referred to are as much and as clearly within his judicial functions or powers as any act which the law gives him the authority to perform as a judicial officer. As in ruling upon questions of the admissibility of evidence at a trial, so in the case of determining whether a complaint filed with him and purporting to charge against someone a public offense triable in his court does or does not state the offense so sought to be charged, he may fall into error or arrive at an erroneous conclusion upon the legal propositions involved. While, as in this case, the purported complaint upon which he issued his warrant of arrest might have been in law no complaint at all because of its utter failure to charge the offense thus attempted to be preferred against the defendant, yet it would or could hardly be said that, his court having general jurisdiction of the crime which was thus attempted to be stated, he was not acting within his powers as a judicial officer when performing the act of issuing the warrant of arrest, notwithstanding it subsequently developed that, through error of judgment, he issued the warrant upon a foundation insufficient in law to justify such action.

Section 1427 of the Penal Code provides, inter alia, that "if the justice of the peace. . is satisfied therefrom [the complaint filed] that the offense complained of has been committed, he must issue a warrant of arrest," etc. This means, and can only mean, that, if the justice honestly and in good faith believes and concludes, from the complaint as filed, that the offense thus charged or attempted to be charged, being an offense of which his court has general jurisdiction, has been committed, he must thereupon issue a warrant of arrest for the party named in the complaint as the accused; and where the justice so satisfies himself that the offense "complained of" has been committed-that is, where he thus makes up his mind and thereupon issues the warrant of arrest honestly and in good faith or without being actuated therein by malicious or corrupt motives (and there is no such showing or even such claim made here), then, as a matter of pub