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TRACY V. SWARTWOUT, 35 U. S. 80 (1836)

U.S. Supreme Court

Tracy v. Swartwout, 35 U.S. 10 Pet. 80 80 (1836)

Tracy v. Swartwout

35 U.S. (10 Pet.) 80


Certain casks of syrup of sugar cane were imported into the port of New York, and the agent of the importers offered to enter them and bond the duties at the rate of fifteen percent ad valorem, but the collector, acting in entire good faith, under instructions of the Secretary of the Treasury, refused to allow the syrup to be entered unless bonds were given at the rate of three cents per pound. The consignee refused to give the bonds for the higher duty, and the syrup remained in the possession of the collector for a long time, by which its value was greatly deteriorated. On the trial of the cause, evidence was offered and rejected by the court to show that the importer was not able to give bonds for the higher duty, but this inability was not made known to the collector at the time it offered to make the entry. The Treasury Department became afterwards satisfied that the legal rate of duties was fifteen percent ad valorem, and on payment of the duty at that rate, the syrup was delivered to the owner. An action was instituted against the collector to recover damages for the loss sustained by the deterioration of the syrup, and a verdict in conformity with the charge of the court was given for nominal damages only.

The circuit court properly rejected the evidence of the plaintiffs' inability to give the bond demanded by the collector. The fact of inability ought to have been made known to the collector at the time the bond was required.

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 dangerous 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.

Where a ministerial officer acts in good faith, he is not liable to exemplary damages for an injury done, 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.

A court may not only present the facts proved in its charge to the jury, but give its opinion as to those facts for the consideration of the jury. But as the jurors are the triers of facts, such an expression of opinion by the court should be so guarded as to leave the jury free in the exercise of its own judgments. It should be made distinctly to understand that the instruction was not given as a point of law by which it was to be governed, but as a mere opinion as to the facts, and to which it should give no more weight than it was entitled to.

The correctness of every charge must depend upon the phraseology used by the court, and of course but little aid from adjudicated cases can be expected in a case like the present.

Page 35 U. S. 81

The collector in point of law had no right to demand a bond for more than the duties at the rate of fifteen percent ad valorem, and the plaintiffs were under no obligation to give bond in a greater sum. And the fact of having failed to give such illegal bond was not a circumstance which should have lessened the plaintiffs damages, nor, in point of law, should the good faith in which the defendant seems to have acted exempt him from compensatory damages.

In the argument of the case, the counsel for the defendant objected to the proceeding by writ of error, alleging that as the jury had found for the plaintiffs in the circuit court, the proper course would have been to move the court for a new trial on the ground of the insufficiency of the damages, and that error would not lie, as this was no more than an application to the court for new trial on that ground.

By the court:

"The objection that the proper remedy of the plaintiffs was by a motion for a new trial, and that the question now made on this writ of error is substantially a motion for a new trial seems not to be well founded. The amount of damages found by the jury is only referred to as showing that it considered its verdict as controlled by the direction of the court."

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.

This action was commenced by the plaintiffs in error in the Superior Court of the City of New York, and on the suggestion of the defendant that the suit was instituted against him for acts done by him under the revenue laws as collector for the District of the City of New York, and praying that the same should be removed to the Circuit Court of the United States for the Southern District of New York; the cause was so removed to October term, 1833.

The declaration was in trover for certain casks of syrup of sugar cane.

Special counts were added setting forth that the plaintiffs had imported certain casks of syrup of sugar cane on which the duty was fifteen percent ad valorem; that the plaintiffs were ready and willing and offered to enter the goods at the legal rate of duty and to give bonds accordingly, and to do every act necessary to making such entry. Nevertheless, the defendant, although he declared himself satisfied with the sufficiency of the offer or tender of the plaintiffs except as to the amount of duties, for which he required bonds in a much larger amount -- over three cents per pound -- for every pound of said syrup, and although

Page 35 U. S. 82

defendant then waived any further tender, nevertheless he refused to allow plaintiffs to enter and secure the duties on the syrup at the rate required by law, and refused to deliver the syrup for a long time -- over eighteen months -- when it was delivered upon payment of the duties at fifteen percent ad valorem, whereby plaintiffs were damaged by the deterioration of the property, &c., stating the damage specially. The defendant pleaded the general issue.

On the trial it was proved that the goods were consigned by plaintiffs to one F. A. Tracy, of New York, to sell for plaintiffs. That F. A. Tracy, by his attorney, J. S. Carpenter, the witness, offered to enter the goods shortly after the arrival at fifteen percent ad valorem.

The collector said he had instructions from the department not to permit the entry at less than three cents per pound. The witness adds "he said he would permit the entry at fifteen percent ad valorem, but should require bonds at three cents per pound."

Sometime after this, Balestier, one of the plaintiffs, arrived in this country, and he went to the collector in company with the witness, E. A. Weeks, and then delivered him the letter set out in the bill of exceptions, making an offer of bonds at fifteen percent ad valorem, inquiring whether a formal tender of a bond or bonds as aforesaid was required. He exhibited the bills of lading, invoices, &c. The collector said

"he could not act, he could not permit him to enter the goods upon the terms and at the rate of duty mentioned in the letter, because it was contrary to instructions from the department. . . . The collector did not refuse an entry to be made, but insisted that the goods should pay a higher rate of duty."

It appeared that the duties demanded were equal, if not greater, than the value of the goods; the consignee would not bond them, and plaintiffs offered to prove that they were unable to furnish bonds at the rate demanded by the collector.

The goods were put in a public store, and remained there a long time; they were finally delivered to the plaintiffs on their bonds, at the rate of fifteen percent ad valorem, "the department" having in the meantime changed its views of the law of July 14, 1832. Sec. 17.

Page 35 U. S. 83

After the foregoing evidence had been given, the plaintiffs procured several witnesses to prove that the syrup was worth from eight to ten cents per gallon less when given up by the collector than when the bonds were offered, in consequence of necessarily growing acid by standing.

The court charged the jury

"That admitting the merchandise in question to be subject to a duty of only fifteen percent ad valorem, yet the circumstances under which the dispute about the rate of duty 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 his duty, and whatever injury the plaintiffs 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 percent ad valorem, taking the bond, however, to secure the payment of three cents per pound; merely placing the case in a situation to have the question judicially decided as to the rate of duty; no intimation being given that it would occasion any inconvenience to the plaintiffs, to give the bond so required by the collector."

To this charge the plaintiffs' counsel excepted, and the jury found for plaintiffs six cents. The plaintiffs prosecuted this writ of error.

Page 35 U. S. 93

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