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SECTION 37.—SAME—ACTIONS AGAINST SUBORDINATES

of

64 Am J Inthaus. Ach of Hati po 359.62

LITTLE v. BARREME.

THE FLYING FISH.

(Supreme Court of United States, 1804. 2 Cranch, 170, 2 L. Ed. 243.) Appeal from the Circuit Court for the District of Massachusetts. MARSHALL, C. J., now delivered the opinion of the court.38 The Flying Fish, a Danish vessel, having on board Danish and neutral property, was captured on the 2d of December, 1799, on a voyage from Jeremie to St. Thomas, by the United States frigate Boston, commanded by Captain Little, and brought into the port of Boston, where she was libeled as an American vessel that had violated the nonintercourse law. The judge before whom the cause was tried directed a restoration of the vessel and cargo as neutral property, but refused to award damages for the capture and detention, because, in his opinion, there was probable cause to suspect the vessel to be American. On an appeal to the Circuit Court, this sentence was reversed, because the Flying Fish was on a voyage from, not to, a French port, and was, therefore, had she even been an American vessel, not liable to capture on the high seas.

During the hostilities between the United States and France, an act for the suspension of all intercourse between the two nations was annually passed. That under which the Flying Fish was condemned declared every vessel owned, hired, or employed, wholly or in part, by an American, which should be employed in any traffic or commerce with or for any person resident within the jurisdiction, or under the authority, of the French republic, to be forfeited, together with her cargo, the one-half to accrue to the United States, and the other to any person or persons, citizens of the United States, who will inform and prosecute for the same. The fifth section of this act authorizes the President of the United States to instruct the commanders of armed vessels to stop and examine any ship or vessel of the United States, on the high seas, which there may be reason to suspect to be engaged in any traffic or commerce contrary to the true tenor of the act, and if upon examination it should appear that such ship or vessel is bound, or sailing to, any port or place within the territory of the French republic or her dependencies, it is rendered lawful to seize such vessel, and send her into the United States for adjudication.

It is by no means clear, that the President of the United States, whose high duty it is to "take care that the laws be faithfully exe

38 The statement of facts is omitted.

cuted," and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States to seize and send into port for adjudication American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that the general clause of the first section of the act, which declares that "such vessels may be seized, and may be prosecuted in any District or Circuit Court, which shall be holden within or for the district where the seizure shall be made," obviously contemplates a seizure within the United States, and that the fifth section gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound, or sailing to, a French port, the Legislature seem to have prescribed that the manner in which this law shall be carried into execution was to exclude a seizure of any vessel not bound to a French port. Of consequence, however strong the circumstances might be which induced Captain Little to suspect the Flying Fish to be an American vessel, they could not excuse the detention of her, since he would not have been authorized to detain her, had she been really American.

NB

It was so obvious, that if only vessels sailing to a French port could be seized on the high seas, that the law would be very often evaded, that this act of Congress appears to have received a different construction from the executive of the United States-a construction much better calculated to give it effect. A copy of this act was B transmitted by the Secretary of the Navy to the captains of the armed vessels, who were ordered to consider the fifth section as a part of their instructions. The same letter contained the following clause: "A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and an impartial judgment. You are not only to do all that in you lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France or her dependencies, where the vessels are apparently as well as really American, and protected by American papers only, but you are to be vigilant that vessels or cargoes, really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you."

These orders, given by the executive, under the construction of the act of Congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages_sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act, not otherwise excusable, it would then be necessary to inquire whether this is a case in which

Implicats?

the probable cause which existed to induce a suspicion that the vessel was American would excuse the captor from damages when the vessel appeared in fact to be neutral?

I confess the first bias of my mind was very strong in favor of the opinion that, though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers, and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which, in general, requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my Brethren, which is that the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass.

It becomes, therefore, unnecessary to inquire whether the probable cause afforded by the conduct of the Flying Fish to suspect her of being an American would excuse Captain Little from damages for having seized and sent her into port, since, had she been an American, the seizure would have been unlawful. Captain Little, then, must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the Circuit Court is not objectionable on its face, and has not been excepted to by counsel before the proper tribunal, this court can receive no objection to it.

There appears, then, to be no error in the judgment of the Circuit Court, and it must be affirmed with costs.39

STETSON v. KEMPTON.

(Supreme Judicial Court of Massachusetts, 1816. 13 Mass. 272, 7 Am. Dec. 145.)

Trespass against the defendants, for taking and carrying away the plaintiff's chaise and harness, and converting them to their own use. The plaintiff had died since the last continuance; and upon

39 See Otis v. Bacon, 7 Cranch, 589, 3 L. Ed. 448 (1813); Tracy v. Swartwout, 10 Pet. 80, 9 L. Ed. 354 (1836); Hendricks v. Gonzalez, 67 Fed. 351, 14

C. C. A. 659 (1895). Belknap v Schuld ibilisio

94 Amy Inth 359

motion of his administrator, he was admitted to prosecute the suit, the defendants opposing. The cause was submitted to the determination of the court, upon an agreed statement of facts, in substance as follows:

The defendants were duly chosen and qualified as assessors for the town of Fairhaven for the year 1814, and on the 8th day of October in that year, in pursuance of the duties of their office, assessed upon the inhabitants of said town a tax, amounting in the whole to the sum of $3,719.73, of which sum the plaintiff, being a taxable inhabitant of the town, was assessed the sum of $14.91, for the nonpayment of which tax his chaise and harness were seized and sold by the collector, to whom the said assessment had been committed, and who was duly qualified to execute the duties of that office, the surplus of the proceeds of the sale, over the tax and legal charges, having been paid to the plaintiff.

Of the said sum of $3,719.73, the sum of $1,200 was, at a legal meeting of the inhabitants of said town holden on the 2d of August, 1814, voted to be raised "for the payment of additional wages allowed the drafted and enlisted militia of said town, and other expenditures of defense. At the time when the said sum of $1,200 was so voted to be raised, and when the same was assessed as aforesaid, an open war existed between the United States and Great Britain. The enemy were then on the coast, and in sight of said town; and had made an attempt to land, but retreated. The town was greatly and eminently exposed to their ravages, who were then laying waste and destroying the dwellings and other property of the people situated on the coast; and in the opinion of the inhabitants of the town, it was necessary to raise and expend the said sum of money for the purposes expressed in the vote above recited, and for the immediate protection and defense of the inhabitants of the town, who voted unanimously to raise the same for the said purposes, the plaintiff himself not having been present at said meeting. Not one-half of the said $1,200 was in fact expended for the object stated in the said vote; and the residue, so far as collected, has been applied to the legal and necessary expenses and uses of the town.

If upon these facts the court should be of opinion that the plaintiff was entitled to recover, judgment was to be rendered for him, upon a default of the defendants, and his damages assessed by a jury; otherwise he was to become nonsuit and the defendants recover their costs.

PARKER, C. J.40 [after stating the opinion of the court that there was no lawful authority to raise the sum in question]. Thus then the general question is disposed of; but it is further relied upon in the defense that the defendants, being in the assessment of taxes authorized by vote,servants or ministerial officers, ought not to be subject to an action for the mere execution of an official duty.

40 Only a portion of the opinion of Parker, C. J., is printed.

NB

It is true that generally executive officers are not liable to actions. for the regular execution of precepts apparently lawful, and which come from an authority which has jurisdiction over the subject. But we cannot view assessors in this light. They are not compellable to assess an illegal tax. They may exercise their judgment on the subjects for which the money appears to be voted; and they may refuse to cause the collection to be enforced, if they deem the tax illegal. If they are not liable to an action for causing an arrest, or the seizure of property, for the nonpayment of an illegal tax, Nit is difficult to find any remedy for an injured citizen in cases of this nature. The constable or collector is not answerable, because he acts in obedience to a warrant under the hands and seals of the assessors,

NB

fact submitted to in who have jurisdiction over the subject, and authority to assess a

Mathum of 6m

tax, and to issue their warrant; and it would be dangerous to vest such officers with a right to question the legality of the proceedings which precede the assessment.

If an action would lie against the town, it could only be for the money actually received into the treasury, which, in most cases of distress, would be but a partial remedy. The assessors must then be answerable, or there will be a defect of justice. In the cases first cited, the action was against the assessors, and no objection was made on that ground; and it may be also remarked that actions have been uniformly sustained against assessors, when a sum has been assessed which was not within the authority of the town to raise.

It is further objected that, as part of the money composing this tax was raised for legal purposes, the assessment must be considered so far legal as to support the warrant issued by the defendants; otherwise they may be held to pay in damages for money which lawfully belonged to the town. But when a part of a tax is illegal, all the proceedings to collect it must be void, as it is impossible to separate and distinguish, so that the act should be in part a trespass and in part innocent.41 This point may also be considered as settled in the two cases cited; for in both those cases the greater part of the sum assessed was for lawful purposes. Whether the damages may not be diminished by the jury, in proportion to the sum which shall appear to be a lawful subject of taxation, may be considered in the inquiry which is yet to be had by the jury.

Defendants defaulted.

*

* 42

41 On this point, see Colton v. Hanchett, 13 Ill. 615 (1852).

42 See Rev. Laws Mass. c. 12, § 98 (St. 1823, c. 138, § 5): "Assessors shall not be responsible for the assessment of a tax assessed by them in pursuance of a vote for that purpose, certified to them by the clerk or other proper officer of a city, town, or fire district, except for the want of integrity and fidelity on their own part."

See Lincoln v. Worcester, 8 Cush. (Mass.) 55 (1851), post p. 359.

Pol Code 8819 3804 both amended 1913 24 102/159.165. duct 163//12

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