10 F. Cas. 874 | U.S. Circuit Court for the District of Northern California | 1857
It appears from the testimony, that a report having been made by the warehouse keeper that these goods were in a perishing condition, the defendant as collector directed an examination of them to be made, by’ two United States appraisers; and upon a report made by them that the goods were In a perishing condition and that an immediate sale was necessary, the defendant ordered the goods to be sold. They were sold at public auction, but only on a day’s notice, and at prices considerably less than their real value. The defendant justifies the sale on the ground that the goods were in a perishable condition, and such sale was sanctioned by the act of congress of 6th August, 1846, — Dun-lop’s Laws U. S. 1106 [9 Stat 53]. The language of the proviso in the first section of the act, enacts, “that all goods of a perishable nature, and all gun-powder, fire-crackers,, and explosive substances deposited as aforesaid, shall be sold, forthwith.” It was not contended that any fraud or other corrupt motive is to be imputed to defendant But it is urged, the goods were not In a perishing condition and the notice of the sale was not duly advertised. There is no doubt, that the notice of sale was so brief that nothing short of immediate and pressing necessity could have justified it. But unless the briefness of the notice is to be considered per se, in the face of the other testimony in the case, sufficient evidence of fraud or a
If a discretion was reposed in him by law the defendant is not punishable, unless it be first proved either that he exercised the power confided in cases not within his jurisdiction, or in a manner not confided to him, as with malice, cruelty, or willful oppression. In Otis v. Watkins, 9 Cranch [13 U. S.] 355, 356, the court say, “This instruction implies that the collector is liable if he form an incorrect opinion, or if in the opinion of the jury it shall have been made unadvisably or without reasonable care or diligence. But the law exposes his conduct to no such scrutiny.” If the jury believed he honestly entertained the opinion under which he acted, although they might deem it incorrect, or without sufficient grounds, he would be entitled to their protection. This does not preclude the proof of malice or other -circumstances to impeach the integrity of the transaction. In Martin v. Mott, 12 Wheat [25 U. S.] 31, it is said: “Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.” Wilkes v. Dinsman, 7 How. [48 U. S.] 89, 132. It is urged that the discretion of the collector may be abused and perverted to oppressive purposes. This argument will apply to every case in which discretion may have been reposed in an individual. It would be impracticable to carry on the government in all its details without confiding in some instances in the judgment and discretion of public officers; and the numerous decided cases which have enunciated the principles which regulate the responsibility of public officers in whom a discretion has been reposed by law, establish not only those principles, but the numerous instances in which the legislature have been constrained to impose on officers the duty of doing acts involving on their part the exercise of discretion and judgment. The ar•gument that discretion may be abused, is to-be addressed to the legislature as to the expediency of imparting any. When it is-given, it is the duty of the court to see that the legal principles are applied to each case In which a controversy as to its exercise may arise. Ho better settled principle exists than the one enunciated by foregoing authorities. A contrary one, in the language of Chief Justice Taney, would indeed “be pregnant with the greatest mischief.” [Kendall v. Stokes] 3 How. [44 U. S.] 98. In municipal seizures, the party who seizes does so at his peril, with-the knowledge that their legality is to be-' tried by tribunals to which the adjudication of them is awarded. If condemnation follow, he is justified; if an acquittal, he must refund in damages for the tort, unless he-can shelter himself under some statute. The seizure is deemed a ministerial act; hence, various statutory provisions have been passed, enabling the party to protect himself in the event the goods seized are not condemned, by procuring from the court a certificate of probable cause of seizure. These-cases of municipal seizure do not apply to-this case. This action is not brought for damages, for the commission of a mere ministerial act The statute on which defendant relies, authorized and required him. as-collector, to sell forthwith all perishable-goods and explosive substances. In the performance of that duty, he had to form a judgment as to the condition of the goods, and that judgment must be necessarily based upon the facts. Now we have seen that where a statute gives a person discretionary power to be exercised by him upon his opinion of certain facts, it is a sound construction that the statute constitutes him the sole and exclusive judge of the existence of those-facts. Martin v. Mott, 12 Wheat [25 U. S.] 31. In the case at bar, the statute required him to sell forthwith, perishable articles. To sell any other would have been an abuse of power. To perform the duty - imposed upon him, he must ex necessitate, pass upon the question of perishability or explosiveness. How otherwise could the fact have been ascertained? The law provides no other way. His duty was not, as in case of a municipal seizure, to hold the goods to await judicial action; but having them in possession, they “shall” be sold “forthwith.” How can he sell without ascertaining the condition of the-goods? What can he invoke for the exami
The second ground taken by plaintiffs is, that they are entitled, independently-of all other considerations, to a verdict, because the sale of the goods was not made- in conformity to law. The 12th section of the act of 1842 [5 Stat 561], amended by the act of August 1846, — Dunlop’s Laws, 1106 [9 Stat. 53], — which authorized the sale, applies to two distinct classes of goods. The body of the section refers to one class of goods to be sold, viz. such as have been deposited in the public stores, and shall have remained therein one year without the payment of duties and charges. Such it directs to be appraised by the U. S. appraisers, and if there be none, then by two respectable merchants appointed and sworn by the collector; and after such appraisement they shall be sold at public auction, on due public notice as prescribed by a general regulation of the treasury department; that at said public sale distinct printed catalogues with the appraised value thereof shall be distributed, and a reasonable opportunity afforded to persons to purchase. The foregoing details are made to protect the sale of the first class of goods; and a neglect of any one essential particular would render a collector liable. These details etíumerated in the enacting part of the section, are not even inferentially alluded to when the act speaks in its proviso of the second class of goods, the perishable and explosive articles. This proviso declares, that all such shall be sold forthwith. It has been urged that the details regulating the sale of the first class of goods, apply to the second, mentioned In the proviso. The office of. a proviso is generally either to except something from the enacting clause, or to qualify and restrain its generality, or "to exclude some possible ground of misinterpretation of it as extending to cases not intended by the legislature to be brought within its purview.