BOOTH V. LLOYD.
SUFFICIENCY OJ/' '
et 01. v.
(Oircuit Oourt, D. Maryland. May 6,1887.)
COURTS- FEDERAL JURISDICTION- FEDERAL QUESTION PLEADING.
Plaintiffs alleged that their property had been seized under color of a state law, whichwas alleged to be void as against the federal constitution. Held, on demurrer, that a federal question was sufficiently presented without formally alleging that the circumstances of the arrest were such as to call forth the operation of the state law.
CONSTITUTIONAL LAW-PRIVILEGES OF CITIZENS-MARYLAND OYSTER LAWS.
The Maryland act of 1884, c. 518, prohibits the use of vessels to buy oysters on the Chesapeake bay unless a license is obtained from the state therefor, conditioned upon a twelve·months residence in the state, and the payment of a Wnnage fee. Held unconstitutional, as denying citizens of other states privileges enjoyed by those of Maryland. Thelaw is also void as imposing a tonnage duty.
OF UNCONSTITUTIONAL LAW.
SAME--IMPOSITION6F TONNAGE TAX-MARYLAND OYSTER LAWS. TRES:PASS..;.-By
to mS,ke a member of the Maryland board of public works liable for a trespass committed by an offi.cer of the state fishery force, under color of authjmty of an unconstitutional state law, .it must be directly shown that , the offlceracted under directions of said board, and that sllch member concurred, therein. 6. DAMAGES-TRESPASS BY OFFICERS-UNCONSTITUTIONAL LAW. Where a vessel is seized and detained by officers acting under an unconsti· tutional state law, supposed by them to be valid, the damages, in the absence of harshne,ss or rigor in the seizure, will be confined to the actual value, of the cargo lost, and the additional expense for the crew, etc., caused by the detention.
The state of Maryland, by an act of her general assembly, passed at the January session, 1884, c. 518, provided that no person should employ auyvessel to carry, buy, or sell oysters on the waters of the Chesapeake bay and its tributaries, without first having obtained a license so to do from the state; and also that no one should obtain such license unless he had been a citizen and resident of the state for 12 months immediately preceding the application for license, and until he had paid the sum of three dollars to the state for every ton the vessel might measure. The plaintiff firm consisted of Alfred Booth and William V. Booth, who are citizens oflllinois, and Alfred E. Booth, who is a citizen of Maryland, .and· are largely engaged in canning oysters in Baltimore for ,the markets of the world. They send barges down the Chesapeake, towed by tugs, the tugs being licensed and enrolled vessels of the United States, from their ,canneries in Baltimore, to the oyster grounds, where their agents purchase oysters, load the barges with them, and they are then towed back to the canneries. In this way oysters are collected for their business. They applied for licenses for their vessels to carry, buy, and sell oysters, but were refused, on the ground that they were not all of them citizens of Maryland. Vnder the advice of counsel they proceeded with their business, and two Of their barges, loaded with oysters, were seized by the state fishery force, and their captains arrested and held to bail by a justice of the peace, on the charge of carrying oysters without having v.33F.no.l0-38
first obtained a license, as aforesaid, required by law. The officers of the state fishery force are appointed by the board ofipublic works, and are, under its control and direction, charged by the law with the execution of the oyster license law of the state.' The plaintiffil,therefore, brought thisl;luit.!1gainst Henry J. Frank Turner, and John S. Gittings, treasurer, of the state of Maryland, who constitute the board of public works, and against James J'; Waddell, commander force, and Lell)Qel Smoot, captain of. one of the vessels of tpe. of that forcel'who, in fact,arrested and seized plaintiffs', servants and vessels.. Capt. Waddell died pending the suit, so that it was impossible to prove by bim that the board.9f public works had given him the order .which to Smoot; to arrest all persons and seize all ve!:lsels carrying, buying, and sellingioysters without Smoot made the arrest and seizure in obedience tpJheorders of ,his 'chief, Waddell. The plaintiffs, in their.declaration, charged that their servants and vessels had been arrested and seized by the defendants, acting under color of the above-redited act of the general assembly of Maryland, which act waS copb:ll.trto the oonstittttiqn' ofU,le United void, and they were",therefore, deprived of their rights under the constitution, contrary to thelawil and constitution of the United States; To this declaration the defendantsfiled their pleaJo t1;le jurisdictiQJl, showing that one of the plaintiffs and all the defendants were citizens of. the state of'Maryland, and that, .therefore, withoutjurisdiction to try the cause.'To plea plaintiffs and the'demurrer was sustained. The plaintiffs then filed an amended declaration', to which defendants plead-First, not second, not guilty, and justification under the authority o Hill e Maryland acrof 1884, c. 518. To the first plea. issue was joined., :, On the first part of.tbesacond plea issue was joined, and as to the justification under the }.1:ary land act of 1884, c.' 518, they replied . that the vessels were not lawfully seized by Smoot,because the act was eontrary to the constitution of United States, and void, and could give him .no authority to seize the same. .To this replication defendants 'demurred, and the court overruled the demurrer·. The· only question oflaw remairiing to be decided on the issues drawn by the pleadings was as to the liability of executive officers of government .for acts done under color of and in: obedience to' unconstitutional and void laws; The case was submitted to the court" BoND and MOBBIS, JJ 0, without a jury. Johnson & 'Johmon, for plaintiffs. '..
An act is nota law; 'it confers no rights; it imposes duties; it affords no protection; it creates lio office; 'it is, in legal contemplation, as Inoperative ,as though it ,had never been passed; Norton v. Shelby 00., 118 U. S. 442, 6 Sup. Ct. Rep. 112LThe case of Osborn v. Bank, 9 Wheat. 738, was argued by. Henry Clay, panial.Webster, John $ergeant, Robert Goodloe Harper, Wright, Brown. co,unsel for the appellants, n say the court through M,ARSHALL, C. J., "are too intelligent, and have too .much self-respect, to pretend that a void act can afford any protection to the officers who execute it. They expressly admit that it cannot." Id. 868. The state of Ohio passed a law to tax the banko! the United f:ltates
operating in. that state. The auditor of the state of Ohio. by his deput.y, seized $100.000 in specie and qank notes belonging to the bank to pay this tax, and deIiv.efed iUo Ourry, the treasurer of Ohio, whQ, in time, transferred it to Sullivan, his Successor as .treasurer. The bank filed its bill against Ortman, his,deputy, and the treasurer, to enjoin them flOm paying that money away and tocompel them to return it to the bank. Says the Chief .Justice, page 839: "Theappellallts expressly waive the extravagant proposition that a void act; can afford protf'ction to the person who executes it, and admits the liability of the defendants to the plaintiff to the extent of the injury sustained, in an action at law." The commanding officer is responsible for arrests made under Ulegal orders. Mr,Call v. McDowell, 1 Abb. U. S. 212; Cooley, Torts, 293, caSell, 688; 2 Dill. Mun. Corp. § 974, p. 977; Barnes v. District 01 Columbia, 91 U. S. 540; Harmony v. MitcheH, 1 Blatchf. 549, affirmed. IBHow.115; Btacy v. Emery. 97 U. S. 642; Kilbourn v. TlI,ompson. 103 U. S. 168; Livingston v. Jefferson. 1 Brock. 212; Btate v. Chase, 5 Ohio St. 529; 6.reenv.1(u?lfo1·d, 5 R. 1.472. The governor of Texas was enjoined frQm execnting a void law. Davisv. (}my, 16 Wall. 203. The treasurer,of a state a voidll\w. Osborn v. Bank, 9 Wheat. U. 8 · ."Peters, 5 Oraneh, 115. This lluit is,not the first·Qne in Maryland against an officer for Jevying an UIegal tax. In 1772 an for trespass ,was brought l\gainst the sheriff of Charles county for levying the poll-tax on tobllcCO forsuppor(; of the pl\rsons. Counsel for plaintUr, B. Johnson, T. J oh nson, Thomas Stone, and S. Chase. Verdict for full amount claimed, £;60. In the A rlillg ton Oase, (U. 8. V. Lee,) 106 U. S. 196,1 Sup. Ct. Rep. 240, the court, by Mr. Justice MILum, say: "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunio/. .4.11 the officers of thE' government. from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our government, atldevery man who, by RecEIpting office,participates in its functions, is only the more strongly bound to submit. to that su. premacy, and, to observe the limitations which it imposes upon the exerciseo! the authority which it gives. Gou rts of justice are established properly to decide upon the controverted riglJts of the citizens as against each other, hut a1s,o upon fights in controversy between them and the government, and the docket of the court is crowded with authorities of the latter class. Shal1 it be said, inthefil.ce of all ihis, and of the acknowledged right of the judiciary to decide, in proper cast-s, statutes which have been passed: ,by both branches of congress. and approved by the prEisident, to be unconstitutional, that the courts cannot give remedy. when the citizen has heen. deprived of his property by force. his estate seized and converted to the use of the goverl'/ment without lawful authority, without process of law, and wit.houtcompensatton', because the president has ordered it, and bis officers are in posst'ssion? If such be the law· of this country it sanctions 'a tyranny which has no existence in themonarchies·of Europe. nor in any other government which has a just claim to well.regulated liberty, and the protection of personal right.... In Marye v.. 1!ar8Q'(ls, 114:p. 8.3(15. 5 Sup. Ct. Rep. 962, WAITE, C" J., MILLER, and GRAY, JJ., dissenting from the particular point invQlved in that partictih\t,discussion r say: "But then it will be asked, has the citizen no rf'dress l:Igainst the unconstitutional acts orlaws oithe State? .Certainiy he has; there is no difficulty upon the subject. Whenever his life, liberty, or, properly is thrt'atened, assailed, or invaded. by unconstitutional byal) to execute unconstitutional laws, be may defend himself in every proper way,-by corpus, llY defense to prosecutions, by 1\0tions brought on his own by injunction, by mandatnus. Anyone of these modes of redress SUitable to his case is open to him..·, A citizen cannot in any way be harassed, injured, or destroyed by unconstitutional laws, with-
out having SOme legal means or' resistance or redress." For such a trespass by high officers of the government, acting in open defiance of the decision of this court,the plaintiffs are entitled to punitive damages. "The dignity and value of the' right assailed, and the' power and authority of the source from which the assault proceeds, are elements to be considered in the computation of damages, if they are to be not only compensated for the direct loss inflicted, but a remedy and prevention for the greater wrong and injury of its repetition." , Huckle v. Money, 2 Wils. 205, approved in BaT1"y v. Edmunds, 116 U. S. 550, 6 Sup. Ct. Rep. 501. See, also, Beardmore v. Oa,r1·tngton, 2 Wils. 244, cited in Barry v. Edmunds, where Lord CAMDEN held that £1,000 damages was not excessive for an arrest under an illegal warrant issued by Lord Halifax, secretary of state, upon which arrest the plaintiff was imprisoneg six days. In this case the state fishery force was under the orders and control of the board of public works;8cting under those'orders, an officer of the force made this arrest of the servants and seizure of the property of plaintiffs. The board either otdered this seizure to be made,or knew that orders were in existence requiring such seizures to be made. It did not countermand them. It had fuU notice of the unconstitutionality of the act under which those orders were issued. ' It l'etained in its service the subordinate who made the illegal arrest and seizure, and it thus ratified his act, and is responsible for his trespass. The board of public workS either ordered the arrest to be made, or approved of it after' it was tn'ade, and, in either case, it is liable in exemplary damages. Cha8'. B. Roberts, Atty. Gen. of Md., and J. M. Gwinn, for defendants. ON DEMURRER TO PLEA.
BOND a;nd MORRIS, JJ. The defendants contend that the plaintiffs' demurrer to their plea to the amended declaration should be overruled, because they say that the declaration does not state a case within the jurisdiotion of this court as between citizens of the same state. The declaration avers a trespass by the defendants, acting as state officers, claiming, for their justification in so acting, a state law which the declaration avers is void, because repugnant to the federal constitution. The defendants contend that these averments do not state a case raising that constitutional question, unless the plaintiffs further aver that the circumstances under which the trespass was committed were really such that the state law came into operation, and would have been a protection to the defendants if a valid law. ' , Weare unable to see the force of this contention. The averments of the declaration clearly state a case in which the state officers claimed for their authority to do what would otherwise be a wanton trespass the protection of a state statute, and aver that the statute so relied upon is repugnant the federal constitution, and therefore void., That constitutional question, therefore, liesilt the threshold, of the stated by the plaintiff, and gives jurisdiction under the first section of the act of March 3, 1875. '!f it, should appear at any time during the progress of the cause that the defendants did not claim to act under the authority of the state law, or that the constitutional validity Of thatlaw is not really drawn in question, the court will have power to dismiss the suit as one not involving a controversy within its jurisdiction. The demurrer is sustained.
ON DEMURRER TO REPLICATION.
and MORRIS, JJ. To the amended declaration of the plaintiffs, filed October 2, 1886, the defendants have filed two pleas,-the first is not guilty, and the second is not guilty as to the arrest of the plaintiffs' barges loaded with oysters, and the de!:itruction of the oysters; and as to the residue of the alleged trespasses, the defendants say that the barges the and oysters were lawfully seized by Lemuel Smoot, sloop Katie Hinds, of the state fishery force of the state of Maryland, for the buying and selling of oysters in said barges without having obtained a license as required by act of Maryland of 1884, c. 518. To the pleas of not guilty the plaintiffs have joined issue, and as to the residue of the second plea, setting up the Maryland act of 1884, in justification of the seizure of plaintiffs' barges and oysters, the plaintiffs reply that their barges and oysters were not lawfully seized by Smoot, because the act of 1884 is not valid under the constitution of the United States. To this replication of the plaintiffs to the l'esidue of the defendants' second plea the defendants have demurred. The avowed object of the defendants in filing this demurrer is to call to the attention of the court the alleged insufficiency of the declaration, which defendants claim is the first error in pleading,.and which declaration they contend is insufficient, becanse it does not allege that the plaintiffs had obtained a license to buy or sell oysters in Maryland, contendingthat so much of the Maryland act of1884, c. 518, as requires a license for buying or selling oysters, is separable from the requirement ofa license io carry oysters, and is not affected by the objections which may apply to the requirement of a license to carry oysters over the navigable waters in Maryland. We do not so think; and it seems to us that the state law requiring a license to buy and sell oysters must be held invalid, so far as it affects the plaintiffs, because it forbids the granting of a license to any person who has not been a resident of Maryland for 12 consecutive months preceding his application for such license. The validity of the requirement with regard to catching oysters is not drawn in question in this suit. The contention of the defendants that the plaintiffs were required to take out a licellsebefore dealing in oysters in this state is based upon the concession that oysters, after they are caught, are merchandise, just AS corn is merchandise. The plaintiffs'declaration avers that they were buying oysters which had been already lawfully caught. . They aver .also, in the fourth count of the declaration, that they had applied for a. license, but had been refused because of want of the required residence in Maryland. The law invoked as -the justification of the seizure is, in .our opinion, unconstitutional, because it denies to citizens of other states privileges and immunities granted to citizens of Maryland, in a matter to which that clause of the federal constitution is applicable. A state <lannot discriminate, by tax or license, between the goods or merchan.dise of home manufacture as against those produced ill other states.
Welton v. M'w8OUri, 91 U.S. 275; Tiernan v. Rinker, 102 U. S. 123; Webber v. Virginia, 103U. S. 345: Nor can a state impose a tax or license upon a non-resident trader different froni that imposed upon a oitizen onesident trader. Ward Maryland, 12 Wall. 418 · We are also of opinion thatthis requirement ofthe law is void as a duty of tonnage. The :act of1884 requires that there 'shall be paid for every vessel engaged in buying or selling oysters upon the waters' of the Chesapeake and its tributaries in Maryland a license of three dollars per ton of the vessel's measurement. This is a tax upon the vessel as an instrument used in a particular trade or branch of irrespective of the value of the vessel as property,' and based.solely and exclusively on its cubical contents. We entertain no doubt that this is a tonnage tax, within the ruling oHbe supreme court in TazOa8e, 12 Wall. 217; Steam-Ship Co. v; Port.,Waqoden8, 6 Wall.· 31; Peetev. Morgan, 19 Wall. 581; Cannon v. New Otlean8, 20 Wall. 577. The defendants' demurrer to the plaintiffs' replication to the residue of defendants'· second plea is overruled.
TRIAt. ON. MERITS.
BOND and MORRIS, JJ-. This is an action of trespass, brought by the plaintiffs'against the defendants; who constitute the board of public works of; the state of Maryland; and Lemuel Smoot, whocommandetl a vessel in the employ of the board of publiC works. The facts are that, while the plaintiffs, were engaged on board their own vessels in buying,: sell· ,'carrying oysters on the navigable waters of the state, thede-' ing j fendant Smoot seized their vessels, took their captains into custody, and detained1them until they gave bail to answer a charj1;e of violating certain statutes of the state, known as the "Oyster License Law." The detention of the; captains of the plaintiffs' vessels was of such a length of time that the 'oYlltets' on board were spoiled. The law under which the vessels to, bail, has been decided to be unwere seized, and the captains oonstitutional. The question llOW is as to the liability of the parties in this action, and the extent of it, which questions are submitted to the court,' without the intervention of ajury. .. Thefirstdifliculty that arises' in the way of the plaintiffs recovering againsHhemembersofthe board of public works is that they have offered no proof that they'everordered the arrest and·seizure of the plaintiffs' captains and vessels. While it may be aumittedthat an unconstitutionalstatute will offer no 'protection tt) the officer who acts under it is nevertheless necessary to show that he advised, directed, aided, and abetted the conduct which constitutes the cause· of action.' So far as this case is concerned ,there is rio sudh proof. It'is left .to inference, merely, that because the officer: whomade the seizure was an offioet·of the state under the control of the boardofjpublic works that therefore they directed hinNo make the seizure. It if!! not shown that the board of public works ever considered the matter;.ol!lhowmany of them united in a resolution to direct the captain, Smoot, to make the seizure. Surely the members of
the board who voted against it are not liable,andwithout proof we cannot infer that all or lilly one consented. Smoot, clearly, is guUty of a trespass. He took and detained the plaintiffs' property without warrant of law.· He supposed he had the and the next quesauthority and warrantor fuw, but he was tion is, what is the:' measure of damages? The plaintiffs seek exemplary damages, but we do not think that they are entitled to such damages. There was nothing vindictive,' harsh, violent, or even rude in the manner of the seizure and arrest. It was made, if we may say so, withurbanity, and while it occasioned the plaintiffs loss, it did· DO injury to theirfeelings, however sensitive. We think the true measure of damages is the actual value at the place of seizure of the cargo of oysters lost, the expenses paid by the plaintiffs to their crews, and tug, which they would not have had to pay had the seizure not bem made, the intention being to make the plaintiffs entirely whole, and nothing more. We find for the defendantS, ex.cept the defendant Smoot. As to him, we fbid for pfuintiffs,· and assess their damages at 8700.
SPECIFtc PERromtANOlll,,;,STATUTE oll' FRAUDS-PROOP Oll' CONTl\AOT.
A for the conveyance of land. although 'n compromise of pending litigation, will not bespecillcally enforced unless proved by the wrltinA' it· self, where there has been no such part performance aa to take the case ont of the statute of frauds. 1 '
2. SAMlll-:-ME)[ORANDUM":'TB:,LlllGRAM.· .., . . . . . A telegram from a bank to its attorneys, .. Our board have agreed to accept the proposition of L. B. Duff, assignee of Carrier & Baum, " does not connect itself with an informal and unsigned memorandum which requires parol,tesmerely for its identification, but also to show that it was an offer from the assignee. 1 8. SAlIE-'MJcMORANDUM-lNCOMPLETE WRITING. A writing which is the mere basis for and preliminary to a contract which is to be put into definite shape, and executed if the terms are ap,proved bya bankrupt court, is not 8. completed agreement, enforceable speclfically.S 4. OF, COURT-EFFECT. 'An order of a bankrupt court. made upon the ea: parte application of the asapproving the tllrms of an agreement of compromise, and authorizing the ,aSSigIllle to consummate the same,h llS no binding effect upon the other pattY t'o the proposed compromise. '. " ...
relating to lands to satisfy the statute of frauds Bell Love's Ex'rs v. Welch, (N. 0.}2 S. E. Rep. 242; Doherw v. Hill, (Mus.) 11 N. E. RElp. 581;.i Elliot v. Barrett,· (Mass.) 10 N. E. Rep. 820, and note I 'Higham v. HWrls, (Ind.) 8.L'i. E. Hastil1gs v, Weber,(M88s.) 7 N. l!1. Rep'. 846; Falmouth "& L. 'r. Co. v. Shawhan, (Ind.) 5 N. Rep. 408: Welch v. Darling, (Vt.) 7 (Pa.) S At!. Rep. 800; Banks v. ManUfactUring. Co., At!. Rep. 547LDumn v. 20'Fed. Rep. 007, WardElll v. WIlliams, (Mioh.}.28 N. W. Rep. 7ll6J. Oampv. Moreman, (Ky.) 2 S.;W. Rep. 179: Insurance Co. v. Webster v. Brown, (Mich.) 54 N. W. Rep. 676; v.Whitman, Id. 879: Hollis v. Burgess, Rep. 536: v.Dailey, (Tex.) 6 S. W. Rep. 426; Roehl v. Hau(Kan.) ' . . ,messer. (Ind.}lli N. ·See toot-note on next page.
vyhat is a suffi.oientmElmorandum o.f a