Hes of proprts

general rule that such officers are not liable in damages to private persons for injuries which may result from their official action done in the honest exercise of their judgment within the scope of their authority, however erroneous or mistaken that action may be, provided there be an absence of malice or corruption. Dillon, Municipal Corporations, § 277, and note; Steele v. Dunham, 26 Wis. 393; Druecker v. Salomon, 21 Wis. 621, 94 Am. Dec. 571; Smith v. Gould, 61 Wis. 31, 20 N. W. 369; Gates v. Young, 82 Wis. 272, 52 N. W. 178.

The facts and circumstances show, however, that respondent's private property rights have been unjustifiably invaded, and that, are invaded & no unless it be that defendant and those who actually committed the trespass in wrongfully destroying his property are liable, he will be other remedy remediless in the law. Under such circumstances quasi judicial officers have been held liable to respond in damages upon the ground that the exercise of this discretion is limited by the superior right guarantying to every person immunity from having his private property rights invaded except under the regular course of law, sanctioned by the established customs and usages of the courts. The discretion in which such officers are protected must be limited to the_line_where their acts invade the private property rights of another, for which invasion the law awards no redress other than an action against the one actually committing the trespass. Hubbell v. Goodrich, 37 Wis. 84; Houston v. State, 98 Wis. 481, 74 N. W. 111, 42 L. R. A. 39; Cubit v. O'Dett, 51 Mich. 347, 16 N. W. 679; Miller v. Horton, 152 Mass. 541, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850; Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 Am. St. Rep. 113; McCord v. High, 24 Iowa, 336. The circuit court proceeded upon this principle, and held appellant liable in damages resulting from the destruction of the property, because it was not in fact a nuisance or cause of sickness endangering the public health.

This course is assailed by appellant upon the authority of Fath v. Koeppel, 72 Wis. 289, 39 N. W. 539, 7 Am. St. Rep. 867. This was an action against the defendant, as meat inspector of the city of Milwaukee, for the destruction of a quantity of fish as unwholesome for food. The action was upon the ground that his acts were without authority, but the court held that he had authority to inspect fish, and judge whether they were a proper article of diet, and to destroy them if he found they were unwholesome. It is stated in the opinion: "He is vested with the power to determine the quality and healthfulness of fish in the market, and, if unwholesome or unfit to be eaten, to condemn and destroy them. This is a high and responsible judicial power, * * ** and the officer exercising such a power is within the protection of that principle that a judicial officer is not responsible in an action for damages to any one for any judgment he may render, however erroneously, negligently, ignorantly, corruptly, or maliciously he may act or render it, if he acts within his jurisdic

tion"-citing, among the authorities in support of this proposition,
Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3.27

The decision arose on demurrer, and seems to assume that the fish
destroyed were in fact unwholesome, and not a fit article of diet.
Under this assumption of fact the decision was in accord with the
doctrine that health officers are not liable in damages for destroying
property when such property is in fact a source of danger to the public.
health. The opinion, however, seems to go upon the ground that such
quasi judicial officers are under all circumstances absolutely pro-
tected from liability to the owner of the property, and are entitled to
the same protection as an officer of a judicial tribunal in the discharge
of official action within his jurisdiction. This is not the rule es-
tablished under the adjudications. Upon the authorities cited and the
reason advanced therein the rule is: "Inasmuch as the law quite

universally protects private property, * ** the judgment or
discretion of a quasi judicial officer, though exercised honestly and
in good faith, does not protect him where, by virtue of it, he under-
takes to invade the private property rights of others, to whom no
other redress is given than an action against the officer." Mechem,
Public Officers, § 642, and cases cited. In so far as Fath v. Koeppel,
supra, is in conflict with this conclusion, it must be deemed over-
ruled. *

*

The evidence adduced fully sustains the findings of the jury. Upon the grounds stated, respondent was entitled to a judgment for the value of the property destroyed.

The judgment of the circuit court is affirmed.28

27 In Raymond v. Fish, 51 Conn. 80, 99, 50 Am. Rep. 3 (1883), an action to
recover damages for the removal of brush with oysters growing on it, brought
against persons acting under an order of the board of health, Park, C. J., said:
"By the common law a party has the right to defend himself from any assail-
ant, even to the taking of life when necessary, and even to the taking of life
when not necessary in fact, but apparently_so. If life may be protected by
destroying life, when apparently necessary, but not so in fact, may not life
be protected by destroying property when apparently necessary, though after-
wards discovered not so in fact? But it may be said that this right of self-
defense comes when the assailed party seems to be driven to the last extrem-
ity. So here the justification of the board of health in the destruction of prop-
erty must come in seemingly extreme cases, where there is reasonable ground
to believe that immediate action is necessary for the preservation of the life
and health of the inhabitants, and where there is reasonable ground to be-
lieve the supposed nuisance to be one in fact. We go no farther in this case
than its exigencies require. We leave undecided how far the board of health
may go in other cases, where the destruction of property may not seem to
require such summary action. It is expressly found in the case that the
board acted in good faith throughout these transactions, and in addition there-
to such facts are detailed as go to show that they acted with extreme caution.
We cannot doubt the constitutionality of the act when rightly considered. It
is nothing more or less than a police regulation. The property was not taken
for public use within the meaning of the Constitution. It was destroyed for
the protection of the public health.
We advise judgment for the
defendants."

* *

See Whidden v. Cheever, 69 N. H. 142, 44 Atl. 908, 76 Am. St. Rep. 154 (1897).
28 See, also, Underwood v. Green, 42 N. Y. 140 (1870); Miller v. Horton, 152

Practical protects to or in altitude of ch. See 2097589.92eety red cares

FN1522

SECTION 35.-SAME-AGAINST FEDERAL OFFICERS

TRACY v. SWARTWOUT.

(Supreme Court of United States, 1836. 10 Pet. 80, 9 L. Ed. 354.) Error to the Circuit Court for the Southern District of New York.

If as collector of cust by and actys olders from dread dept ufused to allow the defendant that the suit was instituted against him for acts done unporter of certain city of New York, and praying that the same should be removed to serups to enter the Circuit Court of the United States for the Southern District of them at is of adva New York, the cause was so removed to October term, 1833. The declaration was in trover for certain casks of syrup of sugar & fur bonds for the payt of such duty

This action was commenced by the plaintiffs in error, in the

Superior Court of the City of New York, and on the suggestion of

Ide demanded bond

for paytat && pull

by him under the revenue laws, as collector for the district of the Court,

cane.

*

*

* 29

MCLEAN, Justice, delivered the opinion of the court.
This case was brought into this court by a writ of error to the Cir-

cuit Court of the Southern District of New York. The suit was
prosecuted in that court, to recover damages from the defendant, who,
as collector of the customs, had refused to allow the plaintiffs to enter
and receive the payment of the lawful duties, on certain casks of
syrup of sugar cane, which they had imported into the port of New

Later Tread dept decided their former and interp: of stat was York. It is admitted that the law imposed no more duty on the article rong emprter's than fifteen per cent. ad valorem, although the collector, acting under right, & delivered the instructions of the Secretary of the Treasury, required bond for the payment of the above duty, or, should it be required, a duty of to lumat 10% three cents per pound. No bond was given, and the syrup remained The now sues in the possession of the collector for a long time, by which means its was greatly deteriorated. The question for consideration arises out of a bill of exceptions in which the evidence is stated at large, showing the quality of the syrup, the number of gallons imported, and the refusal of the defendant to take bond for the fifteen per cent. ad valorem duty.

A

for

for loss by deterior value

Hild heable

It was admitted by the counsel of the plaintiffs that the defendant acted throughout with entire good faith, and under instructions from

Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850 (1891), post, p. 535. New York Agricultural Law (1901) § 70a: "The actual appraised value * of all animals slaughtered under the provisions of this article [Diseases of Domestic Animals], which shall be found upon a post mortem examination not to have had the disease for which they were slaughtered, unless the same were killed on account of the violation of quarantine regulations, shall be paid to the owners of such animals. *

See New York City Charter 1901 (Laws 1901, c. 466) § 1196, post, p. 358 29 The rest of the statement of facts and a portion of the opinion are omitted.

the Treasury Department. The plaintiffs' counsel offered to prove that they were unable to give bonds for duties at three cents per pound, though they did not state that fact to the defendant at the time they offered to make the entry. The court overruled this testimony, and instructed the jury "that, admitting the merchandise in question was only subject to an ad valorem duty of fifteen per cent., yet the circumstances under which the dispute about the rate of duties arose ought not to subject the collector to the payment of more than nominal damages; that the collector was pursuing what he believed to be the true construction of the law, and whatever injury the plaintiffs may have sustained, in not receiving their goods at an earlier day, grew out of their own conduct in not entering the goods in the manner offered by the collector, at fifteen per cent. ad valorem, taking the bond, however, to receive the payment of three cents per pound, if such should be the legal rate of duties demandable, merely placing the case in a situation to have the question judicially decided, as to the rate of duty, no intimation, at the time, being given that it would occasion any inconvenience to the plaintiffs to give the bond so required by the collector." Under this construction, the jury found a verdict for six cents damages and six cents costs.

There can be no doubt that the Circuit Court decided correctly in overruling the evidence of inability in the plaintiffs to give the bond demanded by the defendant. The materiality of this evidence is not perceived; and if it had been material it ought not have been received, unless the fact of inability had been made known to the defendant, at the time the bond was required. * * *

No

The collector of the customs is a ministerial officer. He acts under the instructions of the Secretary of the Treasury, who is expressly authorized to give instructions, as to the due enforcement of the revenue laws. Do these instructions, when not given in accordance with the law, afford a justification to the collector, or exonerate him from the payment of adequate damages for an injury resulting from his illegal acts? The Circuit Court, in their charge to the jury, did not consider these instructions as a justification to the defendant; and in this they were unquestionably correct. The Secretary of the Treasury is bound by the law; and although, in the exercise of his discretion, he may adopt necessary forms and modes of giving effect to the law, yet neither he nor those who act under him can dispense with, or alter, any of its provisions. It would be a most danger- Reas ous principle to establish that the acts of a ministerial officer, when done in good faith, however injurious to private rights and unsupported by law, should afford no ground for legal redress. The facts of the case under consideration will forcibly illustrate this principle. The importers offer to comply with the law, by giving bond for the lawful rate of duties; but the collector demands a bond in a greater amount than the full value of the cargo. The bond is not given, and the property is lost, or its value greatly reduced, in the hands of the

defendant. Where a ministerial officer acts in good faith, for an injury done he is not liable to exemplary damages; but he can claim no further exemption where his acts are clearly against law. The collector has a right to hold possession of imported goods until the duties are paid or secured to be paid, as the law requires. But, if he shall retain possession of the goods, and refuse to deliver them, after the duties shall be paid, or bond given or tendered, for the proper rate of duties, he is liable for the damages which may be sustained by this refusal. * * *

Some personal inconvenience may be experienced by an officer who shall be held responsible in damages for illegal acts done under instructions of a superior; but, as the government in such cases is bound to indemnify the officer, there can be no eventual hardship. The judgment of the Circuit Court must be reversed, and the cause remanded to that court for further proceedings. Judgment reversed.30

Collector actas mists" ~Treas" dept cago aduty Goods

on

ELLIOTT v. SWARTWOUT.

(Supreme Court of United States, 1836. 10 Pet. 137, 9 L. Ed. 373.)

Certificate of division from the Circuit Court for the Southern

loo high a rate District of New York.

Im

The suit was originally instituted in the Superior Court of the City porter pd 3. protect of New York, by the plaintiff against the defendant, the collector of

ns that he in-
no

the port of New York, and was removed by certiorari into the Circuit Court of the United States. tended to sue to get The action was assumpsit, to recover from the defendant the sum excess backrales of $3,178, received by him for duties, as collector of the port of New no not to pay ous, the York, on an importation of worsted shawls with cotton borders, and $ unto the Treas worsted suspenders with cotton straps or ends. The duty was levied at the rate of fifty per centum ad valorem, under the second clause Collectorded homof the second section of the act of the 14th July, 1832, entitled "An pay the thus act to alter and amend the several acts imposing duties on imports,

Field leab. 3/8

as manufactures of wool, or of which wool is a component part. The plea of non assumpsit was pleaded by the defendant in bar of the

action.

The following points were presented, during the progress of the trial, for the opinion of the judges, and on which the judges were opposed in opinion: 31

3. Whether the collector is personally liable in an action to recover back an excess of duties paid to him as collector, and by him paid, in the regular and ordinary course of his duty, into the treasury

30 Compare Averill v. Smith, 17 Wall. 82, 21 L. Ed. 613 (1872).

31 The first two points, and the part of the opinion relating thereto, are omitted..