General

Malfeasance, Misfeasance & Nonfeasance

What's the difference?

Malfeasance in office is the doing of an act for which there is no authority or warrant of law.

Misfeasance is the wrongful and injurious exercise of lawful authority — that is, the doing of an act which might lawfully be done, but is done in an improper manner.

Nonfeasance  is a term used in tort law to describe inaction that allows or results in harm to a person or to property. An act of nonfeasance can result in liability if (1) the actor owed a duty of care toward the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in injury.

Malfeasance is a common law crime.

Statute of Limitations for Criminal Prosecution - Va Code § 19.2-8

Va Code § 19.2-8, states in pertinent part “Prosecution of nonfelonious offenses which constitute malfeasance in office shall commence within two years next after the commission of the offense.”

Some Virginia Statutory and Case law.

Va Code § 19.2-59 states in pertinent part, “Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in officer.”

The Virginia legislature has thereby made it clear that an officer’s authority to search is only by virtue of and under a warrant issued by a proper officer.  Thus any search without a warrant is an “act for which there is no authority or warrant of law”–a “malfeasance in office.

Where the thing done by the officer is purely ministerial and the officer is intrusted with no discretion in the premises, if he exceeds his authority and does an act officially for which there is not authority of law, he is guilty of malfeasance in office, although there is an entire absence of any corrupt or evil intention. 1 Bish. New Cr. Law (8th ed.), sec. 459; 2 Id., Ch. 4414 and especially sec. 978; Cutchin v. Roanoke, 113 Va. 452, 74 S.E. 403; Law v. Smith, 34 Utah 394, 98 P. 300; Bell v. Josselyn, 69 Mass. 309, 63 Am. Dec. 741; Harris v. Hanson, 11 Me. 241; Coite v. Lynes, 33 Conn. 109; Bradford v. Territory of Oklahoma, 2 Okla. 228, 37 P. 1061; Mechem on Public Officers, secs. 457-8.

In 1  Bish. New Cr. Law, sec. 459, supra, this is said:  “Any act * * in breach of duty of public concern by one who has accepted public office is, within limitations about to be stated, a crime. Particularly is this so where the thing is of a ministerial or other like nature, and the officer is intrusted with no discretion. Citing numerous English and American cases. The limitations referred to are stated in the next section of this work (460), above cited and quoted from, and, so far as material to the case in judgment, refer to the distinction, above adverted to, between the doctrine applicable where the officer is required to exercise a judgment of his own and that applicable where the officer is not intrusted with any discretion.

In Cutchin v. Roanoke, supra (113 Va. 452), 74 S.E. 403, which was a proceeding for the removal of the mayor of the city of Roanoke, the following statements of the law are contained in the instructions given by the trial court, which were approved by this court, namely:

“The court instructs the jury that malfeasance in office is the doing of an act for which there is no authority or warrant of law; * *”



Warren v. Commonwealth, 136 Va. 573, 586-87, 118 S.E. 125, 129 (1923)

COURT’S INSTRUCTION NO. 5.

“The court instructs the jury that malfeasance in office is the doing of an act for which there is no authority or warrant of law; while misfeasance is the wrongful and injurious exercise of lawful authority — that is, the doing of an act which might lawfully be done, but is done in an improper manner.

“Gross neglect of official duty is the wilful failure or refusal of the officer to perform the duties imposed upon him for the enforcement of the law and the preservation of good order and morals.

“The word ‘wilful,’ as used above, and in the rule to show cause, means an obedience to the will — that is, a purpose to do or leave undone some official duty imposed by law.”



Cutchin v. Roanoke, 113 Va. 452, 466, 74 S.E. 403, 404 (1912)

§ 18.2-8. Felonies, misdemeanors and traffic infractions defined.

Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in a state correctional facility are felonies; all other offenses are misdemeanors. Traffic infractions are violations of public order as defined in § 46.2-100 and not deemed to be criminal in nature.

§ 18.2-12. Same; where no punishment or maximum punishment prescribed.

A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor.

§ 18.2-16. How common-law offenses punished.

A common-law offense, for which punishment is prescribed by statute, shall be punished only in the mode so prescribed.