Statement of the Case.

praiser, dutiable articles taken from passengers' baggage will be sent by the inspector, as soon as possible, to the appraiser's store and the passenger will be furnished by the inspector with the usual baggage certificate,' which will be in the following form:

"Inspector's certificate of goods sent to public store under baggage permit.

"PORT OF

18

On board ship.

"I have sent to public store under baggage permit' the following articles said to belong to "(Describe the articles.)

Inspector."

By the government's report in this case the value of the property in Miss Sichel's trunk was alleged to be $100 only, while the plaintiff did not claim the value to be over $400. Peterson, the government inspector, did not make a written report of the case to the government until about two months after the arrival of the steamer. He did this at the request of the surveyor, and it was no part of his duty to make it as requested. The same inspector Peterson had signed and issued the certificate on the baggage declaration. There was an appraiser on the pier in question some time on that day. The trunk in question was the only seizure or detention of passengers' baggage made on that dock on the day in question.

The defendant himself being put upon the stand and duly sworn, testified that he was the collector of the port of New York; that he had in the neighborhood of twelve hundred subordinates under him; that, approximately, the average annual importations into the port of New York, passed through the custom house, were of the value of five hundred millions of dollars; that he knew nothing about the trunk imported by Emilie Sichel by the Egypt on January 31st, at the time of its importation; that he was not on the dock at the time; that it was no part of his duty to pay any attention to the actual arrival of the passengers' baggage, or pass

Statement of the Case.

ing it through the custom house, or ordering it to the public store, or examining it to see if there were any dutiable goods, or to have anything to do with it; that, as a matter of fact, he had nothing to do with it; and that the first time his attention was called to the matter of this trunk was long after the fire, some time in September, 1883.

The evidence being closed, the defendant moved the court to direct a verdict in his favor upon the same grounds on which the motion was made at the close of the plaintiff's case, that is to say, that there was no evidence in the case to connect the defendant with the destruction of the trunk; that in the case of a public officer, the doctrine of law respondeat superior did not apply; and that, before there could be any recovery from the public officer it must be shown that he was personally responsible himself, and that the negligence was his own act. The court refused to grant this motion, and the defendant excepted.

The defendant then requested the court to charge as follows: "1. That a public officer is not responsible for the negli gence of his subordinates.

"2. That the defendant is liable only for the neglect of some duty devolved upon him personally and not for the neglect of duty of any other person.

"3. That unless the jury find that the loss of this trunk was the direct result of some personal carelessness or negligence on the part of the defendant there can be no recovery.

"4. That it is not sufficient to show that the loss may have been the result of negligence on the part of the collector. It is necessary to show that it was.

5. That the jury cannot find a verdict in favor of the plaintiff if they find that the loss of this trunk was due to the personal negligence or violation of statutes or regulations on the part of the customs officers other than the defendant personally.

"6. That the inspector who examined plaintiff's trunk, having found therein what he believed to be dutiable articles, was obliged to turn said trunk over to others of the officers of the customs for appraisement and assessment of duty, and

Statement of the Case.

until such appraisement and assessment of duty and the payment of the duty as assessed the plaintiff was not entitled to the possession of the trunk.

"7. That the defendant is not responsible in this action for the withholding the plaintiff's trunk and its contents.

"8. That if the customs officials at the vessel misinterpreted their duty, and did an act which was in law a trespass or conversion, the defendant is not responsible, he not having been present and not having been a party to the wrong interpretation of duty acted on by the customs officers at the vessel.

"9. That the defendant is not responsible for the trespasses, conversion, or other faults of his subordinates committed by them even in the line of their duty, unless he was personally a party to the same.

"10. That the law, as provided in § 2652 of the Revised Statutes, made it the duty of the customs officers at the vessel by which the plaintiff's trunk was imported, to execute and carry into effect all instructions of the Secretary of the Treasury relative to the execution of the laws.

"11. That it appears by the evidence in this case that one of the instructions by the Secretary for the guidance of the officers at the vessel in which the plaintiff's trunk came was a provision that, whenever any trunk or package brought by a passenger as baggage contains articles subject to duty, the value whereof exceeds five hundred dollars, or, if the quantity or variety of dutiable articles is such that the proper classification and examination for appraisement thereof cannot be made, the trunk or package will be sent to the public store for appraisement.

"12. That this instruction of the Secretary had and has the force of law for the facts in this case.

"13. That the instructions devolved upon the customs officials at the vessel a discretion to determine whether the quantity and variety of the dutiable articles was such that the proper classification and examination for appraisement thereof could not be made at the vessel, and, if they determined it could not be, to send the trunk and its contents to the public store for appraisement.

VOL. CXXVII-33

Opinion of the Court.

14. That in the exercise of this discretion those officers, and the collector as their superior, are not responsible for any error of judgment in making the determination whether the quantity or variety of the dutiable articles was such, prior to sending the trunk to the public store.

"15. That the officers at the vessel, and the collector as their superior, can, if at all, only be held responsible for bad faith in the exercise of the discretion thus devolved upon them by the regulation established by the Secretary, under the law." The court charged the jury, that if one of the subordinate officers of the customs, in the course of the performance of his duty, did an absolute wrong to the plaintiff, such as to take her trunk from her and keep it from her when she wanted it and was by law entitled to it, the defendant would be liable. The defendant excepted to this charge. The court gave further instructions, which bore upon the matters set forth in the defendant's request to charge, but which, in the view we take of the case, it is not important to notice. The bill of exceptions states, that the court did not comply with the defendant's requests to charge further than as appears by the charge as stated, and that the defendant excepted to the refusal to charge as to each request separately, so far as the court did refuse.

The jury found a verdict for the plaintiff for $459. The court ordered that a certificate of probable cause be entered, and on the verdict, with costs added, a judgment was entered for the plaintiff for $502.96, to review which the defendant brought a writ of error.

Mr. Solicitor General for plaintiff in error.

Mr. Edward Jacobs for defendant in error.

MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.

We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if any, committed by his subordinates, on the facts of this case.

Opinion of the Court.

There is nothing in the evidence to connect the defendant personally with any such wrong. No evidence was given that the officers in question were not competent, or were not properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort, but to permit a recovery against the collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person.

This principle is well established by authority. It is not affected by the fact that a statutory action is given to an importer, to recover back, in certain cases, an excess of duties paid under protest; nor by the fact that a superior officer may be held liable for unlawful fees exacted by his subordinate, where lawful fees are prescribed by statute, and where such fees are given by law to the superior, or for the act of a deputy performed in the ordinary line of his official duty as prescribed by law. The government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests. Story on Agency, § 319; Seymour v. Van Slyck, 8 Wend. 403, 422; United States v. Kirkpatrick, 9 Wheat. 720, 735; Gibbons v. United States, 8 Wall. 269; Whiteside v. United States, 93 U. S. 247, 257, Hart v. United States, 95 U. S. 316, 318; Moffat v. United States, 112 U. S. 24, 31; Schmalz's Case, 4 C. Cl. 142.

The head of a department, or other superior functionary, is not in a different position. A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the sub