majority">The Chancellor.

The principal question in controversy-between these parties at the time of the making of the order appealed from, has since been disposed of; by the act of March, 1844, declaring the rights, and for the relief, of the master and wardens of the port of New-York. By that act, the defendants, as well as all other persons, are expressly prohibited from performing, or exercising, or attempting to perform or exercise, any of the powers, functions, or duties of the master or wardens of the port of New-York, conferred on, or required of them by law, or by the act of February, 1819, or from receiving any fee or reward for any such service; which powers, functions and duties are declared to be exclusively vested in, and to belong to, the master and wardens of the port of New-York, by virtue of their offices. (Laws of 1844, p. 81, § 1.) Under that act, whatever the complainants are authorized to do by virtue of their offices, the defendants and all others are prohibited from doing, under a heavy penalty. It appears to be useless, therefore, to spend much time in examining the question, whether the powers of the complainants in this respect were exclusive before the passage of the act of March, 1844. I agree, however, with the vice chancellor, that the powers given to the complainants by the fifth section of the act of February, 1819, {Laws of 1819, p. 13,) were in the nature of a franchise, and in their nature exclusive, until the legislature should think proper to repeal or modify the law, or should authorize others to perform the same duties. The statute creates, or provides for the appointment of public officers, and devolves upon them certain powers and duties which the interest of the public requires should be performed by persons duly authorized and selected in the mode prescribed by the sovereign power of the state. It was a palpable usurpation of power, therefore, for another body of men to attempt, under a different name of office, to perform *538the duties assigned to these officers, and to establish a tariff of fees of office for the discharge of such duties.

I have no doubt that the chamber of commerce, and the board of underwriters of the city, would be perfectly safe persons to entrust with the selection of officers to perform these particular duties. But the sovereign power of the state had not- thought proper to entrust them with that selection. They therefore mistook the duty which they owed that sovereign power, when they assumed to constitute a board of public agents, to discharge the duties which the legislature had conferred upon a board of officers to be appointed by the governor and senate.

The injunction granted in this case is too broad, however; as it protects the complainants in the enjoyment of privileges which are not conferred upon them by the act of February, 1819, and which do not therefore belong to them by virtue of their offices. Port wardens, by the common law, were not ex officio surveyors of damaged vessels or damaged goods. The only exclusive powers which the complainants can rightfully claim then, as surveyors, are those which are conferred upon them by statute. By the colonial act of 1761, to prevent frauds in the sale of damaged goods imported into this colony, (1 Van Schaack’s Laws, 394,) all damaged goods sold for account of the insurers were required to be surveyed by the master or one of the wardens of the port of New-York, and to be sold at public vendue under his direction. And he. was to give á certificate of such survey and sale, and was allowed certain fees for his services. ■Two years afterwards, the provisions of an act of 1759 were reenacted, whereby the master and wardens of that port were by statute appointed ex officio surveyors for the surveying of all damaged goods brought into the port of New-York in any ship or vessel; and were, with the assistance of one or more able carpenters, to survey all vessels that should be deemed unfit to proceed to sea, and to give certificates under their hands and seals, «fee. And fees were allowed them for such surveys and certificates. The act also declared that no survey on such goods oi Vessels, performed or made in any other manner, should be valid or authentic. (2 Idem, 435, § 6.) The provisions of this section *539were incorporated into the eighth section of the act of 1784, on the same subject. (1 Greenl. Laws, 89.) And these several powers to the master and wardens, as surveyors, were continued in the several revisions previous to the act of 1819. But in that act the words “ shall be surveyors of all damaged goods brought into the said port of New-York, in any ship or vessel,” which were contained in the 308th section of the revised act of 1813, (2 R. L. of 1813, p. 459,) were left out. In other words, so much of the previous statutory provisions on the subject of surveys as declared that the master and wardens of the port of New-York should be ex officio surveyors of all damaged goods brought into that port in any ship or vessel, was repealed by the legislature after it had been in force about sixty years. Whether this repeal was intentional, or merely accidental, it is not material now to inquire. It is sufficient to say that the complainants are no longer ex officio surveyors of damaged goods imported into the city of New-York, except in the cases specified in the fifth section of the act of 1819. That is, when such damaged goods are required to be sold by the owner or consignee, on account of such damage, and for the benefit of underwriters who do not reside in New-York. The statute does not prohibit the master and wardens from acting as surveyors in cases not mentioned in the act of 1819 ; and it was therefore very proper to have a tariff of fees which should apply to other surveys in case they should be made, by such master and wardens, as had theretofore been done. But the granting of a fixed rate of fees for particular services, does not, even by implication, give the complainants the exclusive right to perform such services, or interfere with the right of others to perform similar services, for such persons as may think fit to employ them.

The order appealed from must therefore bo modified so as to limit its operation to the cases in which the complainants are expressly authorized to act as surveyors, judges of repairs, or in superintending sales, or in giving certificates, by the fifth section of the act of February, 1819. And neither party is to have costs against the other on this appeal.

The objection that the suit should have been in the artificial *540name in which the complainants are authorized to sue for their fees, is not well taken. The injury complained of is an injury to the complainants as individuals having a joint and common interest; and the suit was therefore properly brought in their own names.(a)

Upon Llie argument of this case, the counsel for the appellants referred to a decision made by the Hon. Samuel B. Belts, in the district court of the United States for the southern district of New-York, on the 10th of September, 1844, in the case of Wight and others v. Curtis, in which some of the questions above discussed by the chancellor, were very ably examined by Judge Belts. The following is the opinion delivered by his Honor in the case referred to:

S. E. Betts, Judge. In the decision of this caso, I shall forbear the review ol several topics discussed with great fulness and learning on the hearing. Under the construction I give the 52d section of the act of 1799, it does not become necessary to consider the origin of the powers of the port wardens of this, port, or the just extent of those powers under the statutes of the state, or the conveniency or fitness of the usage, prevailing with the custom house here, to call for their official certificates in cases of goods damaged on the voyage of importation, for which a deduction of duties shall be claimed, nor to investigate and determine the right of marine surveyors, under private appointment, to perform that seivice.

The facts presenting the question in contestation between the parties, are, that the ship Sheffield, when coming into this port, in November last, and in charge of a pilot, grounded in a heavy wind and filled and sank. She was subsequently raised and towed to the city, and her cargo unladen; and by consent and at the instance of all parties interested, it was ordered by the collector to be deposited in a public store house. The dutiable goods of the plaintiffs on board the ship, were damaged by sea water on the occasion, to the amount of 60 per cent, on the value. The'plaintiffs produced certificates of the port wardens of surveys of all their packages except one, and asked and had allowed them by the collector, an appraisement of the damages so incurred by those packages. In respect to the package in question, the plaintiffs offered to the collector the sworn survey and appraisement of Alexander Cartwright, (representing himself to be a person “selected by the parties interested,) to survey, appraise, arbitrate and judge of vessels and goods arriving damaged, or becoming damaged in the port of New-York,” certifying that he had taken a strict and careful survey of the goods in question, and found them to have been damaged on the voyage of importation. Also the deposition, of the master of the ship, proving the wreck and injury to the cargo in consequence. An exception was taken on the argument, to the admissibility of this deposition, because the attestation was taken be» fore a state magistrate, not authorized to administer oaths to be used in the United States tribunals. I think this objection cannot prevail, for the attestation on oath, to such a document, is not required by any act of congress; and if it was, the collector should have put his refusal to receive the affidavit, upon the grotmd of the defect of au*541thority in the officer taking the oath, so that the irregularity might have been rectified at the time, and he would not be permitted to start the objection on the final argument. Ilis acceptation of the deposition will be deemed a waiver of any informality in the jurat, particularly as the paper was addressed to him, and was to have no other operation than to guide his decision on the claim of the importer to have his goods appraised.

The collector, by his letter of Nov. 23,1843, to the plaintiffs, slated that according to the instructions which he had received from the secretary of the treasury, the certificate of damage must be given by a port warden, and added: “ that if within ten days after the landing of the goods, such certificate shall be presented, orders will be given for an appraisement.” The particular certificate not being furnished, the appraisement was refused and the plaintiffs paid the full duties charged, $103,14 on this package, making their protest at the time; and then brought this action in a state court, to recover back 60 per cent, thereof, being $67,05, with interest from Nov. 25, 1843. The action was removed to this court pursuant to the act of congress of March 2, 1833. A letter of the secretary of the treasury, dated July 13, 1843, to the collector, ratified his decision in a previous case, rejecting the certificate of damage given by the marine surveyors appointed by the chamber of commerce and board of underwriters of the port of New-York, and approved the practice of requiring the certificate of damage to be given by the port wardens; as being not only in accordance with the 52d section of the act of 1799, but as that which most nearly conforms with its provisions.

Some criticism was made, upon the argument, as.to the proofs of damage: and their sufficiency to establish the fact, was questioned. But as the objection on the trial referred essentially to their admissibility, and the fact and extent of damage was not made a prominent point, I shall regard the testimony, if competent, sufficient to have justified the jury in finding for the plaintiffs. And the court; on a case made, will draw the same inferences from the evidence a jury would be warranted in drawing. (14 Johns. 215, 216. 15 Id. 409, 6 Cowen, 632.) It was also suggested, that the collector rightfully refused the request of the plaintiffs, because they asked the appointment of merchant appraisers, conformably to the act of 3 799, when the act of 1823 had abolished that mode of appraisement, and designated official appraisers who alone possessed authority to make the appraisement. This was clearly a mero misapprehension in the form of application, a mistake which the collector does not regard, for he avowed his readiness to act under the application, on being furnished the particular certificate he required ; and accordingly the error of the plaintiffs in the designation of the appraising officers can stand in no way against the rights in the matter. The court will regard it as the collector did, a request to have the appraisement made conformably to the law. The essential question to be disposed of, is then, whether the plaintiffs, on the facts and circumstances of this case, were bound to produce a certificate of the port wardens, before the appraisement and a deduction of duties because of such damages could be claimed by them.

This inquiry turns upon the construction to be given to the 52d section of the act of March 2, 1799. It enacts that°all goods, wares and merchandize of which entry shall be made incomplete, or without the specification of particulars, either for want of the original invoice or invoices, or for any other cause, or which shall have received *542damage during the voyage, to he ascertained by the proper officers of the port or district in whicli the said goods, wares or merchandize shall arrive, shall be conveyed to some warehouse or storehouse to be designated by the collector, in the parcels or packages containing the same, there to remain with due and reasonable care, at the expense and risk of the owner or consignee, under the care of some proper officer until the particulars, cost or value, as the case may require, shall have been ascertained, cither by the exhibition of the original invoice or invoices thereof, or by appraisement at the option of the owner, importer or consignee, in manner hereafter provided, and uitil the duties thereon shall have been paid or secured to be paid, and a permit granted by the collector for the delivery thereof. And for the appraisement of goods, wares and merchandize not accompanied with the original invoice of their cost, or to ascertain the damage thereon received during the voyage, it shall be lawful for the collector, and upon request of the party he is required, to appoint one merchant, and the owner, importer or consignee to appoint another, who shall appraise or value the said goods, wares or merchandize accordingly: which appraisement shall be subscribed by the parties making the same, and be verified on oath or affirmation before the said collector: which oath or affirmation shall be in the form following, to wit, &c. The usage at the custom house under this section, has always been to exact a certificate preliminary to ordering an appraisement on damaged goods, and the wardens of the port have been held the “ proper officers" to give said certificate.

On the part of the plaintiffs, it is contended that the act contains no authority for either of these requirements. The section recited, directs goods, wares and merchandize to be conveyed to some warehouse or storehouse on arriving in port in either of two conditions, (1) when the entry of these shall have been made incomplete for any cause, and (2) which shall have received damage during the voyage, to bo ascertained by the “proper officers,” &o. In the first instance, it is plain, tho collector acts on his own view of the state of the entry, and without any extraneous evidence; but as in the second instance, the cause for ordering the goods to a public store could not be apparent in the entry, of one which the collector would be supposed prepared to decide on his own inspection, there would seem to be the occasion for designating by law the circumstances which would require or'authorize the order. This designation is supposed to be supplied by the statute. The terms of the act may probably admit this construction, and if the first clause is read by itself, such might be its more natural interpretation, because the inquiry which is to lead to the action of the collector, is whether the goods have received- damage during the voyage, and the expression “tobe ascertained by the proper officers,” might well he regarded as having reference to the general proposition or idea of “ damage during the voyage," and not to damage simply in respect to its amount or extent; But the same expression is taken up in the subsequent clause of the section, and congress, by the application of it there, would seem to regard the language as calling for a valuation of damages, and not merely the finding the fact that damage had been received. This understanding of its import, is again distinctly indicated in the form of the oath, for the appraisers are required to swear that “ the packages have received damage,, as we believe, during the voyage of importation, and that the allowance by *543us made, for such damage, is to the best of our skill and judgment-just.” It is not to be supposed that congress would in this clause and in the oath impose on appraisers the duty of ascertaining the fact of damage during the voyage, if, by the previous clause, other officers were appointed to perform that very service; and it seems to me that the entire section, taken with the form of the oath, denotes that it was intended to provide for no more than one ascertainment of damage in this behalf, and that in this respect, the first clause in the section is to be considered subordinate to, or more completely fulfilled by the subsequent one. Although the language may be susceptible, and most naturally, of the interpretation given it by the collector and the secretary of the treasury, yet plainly no violence is done it by understanding it in the other sense, and the latter would most effectually harmonize all the provisions of the section. In aid of this exposition, it is to be observed that the language is prospective, having relation to an act afterwards to be done, and that not necessarily before the action of the collector in ordering the goods to a public store. “ Damage to be ascertained,” and “to ascertain the damage,” are correlative expressions, and indicate one and the same procedure; and that they are so used by congress, is plainly imported by the terms of the oath “ to ascertain and appraise the damage.” This latter act must necessarily follow the deposite of the goods in a public store, and tire language of the first clause may very well be satisfied, even on the interpretation of the defendant, by having the survey posterior to the deposite in store. If then this ascertainment of damages by proper officers, must not indispensably be had, previous to the deposite of the goods, and as the statute provides for only one proceeding thereon subsequent to such deposite, the entire section would most appropriately be read as having reference to the one act of ascertaining and appraising, designated and directed in the latter clauses. I think, therefore, that upon the true construction of the 52d section “ the damage received during the voyage, to be ascertained by the proper officers of the port or district,” mentioned in the first clause, is the sanie matter directed to be inquired into and determined in the after branch of the section, and that accordingly, there is no authority in the act for requiring any other survey or appraisement.

A more minute analysis of the terms of the section will conduce to the support of this construction. If the provisions of the first clause call for a survey of the goods by proper officers, as it is understood at the custom house, it stands in singular contrast with the after provision in that respect, in not naming the officers who are to perform the duty, in not exacting the sanction of an oath from them, and in not rendering it obligatory on the collector to take the proceedings. The importer is supplied with no authority to compel the action of the collector, and if the first branch of the section is read as complete within itself, it would seem that the merchant is placed entirely at the discretion of the collector, or can have no relief because of the deterioration of his property, unless through the tedious and precarious prosecution of the collector for malfeasance in his office. Congress deemed the matter Worthy precise legislation, when they came to consider the equitable consequences of such injury to goods, on the rights of the importer and the interests of the revenue, and provided specifically for enforcing and preserving these respective interests. Such incongruity would be reluctantly implied in the provisions of the same section, and the construction, therefore, which regards the whole subject matter as one and the *544same, and as provided for in a common regulation, seems best adapted to uphold the rights of all parties, and fulfil the obvious purpose of congress. This same course is pursued in the sixtieth section in relation to vessels coming into port in distress. The regulation is minute and specific as to terms and manner in which kindred services are to be obtained and rendered, and whether state officers or merchant assessors are employed, the act points out definitively when and how they are to act. This latter section supplies also 'a forcible argument against the application of the term “ proper officers,” used in the fifty-second section, to port wardens, because the 60th section names them, and if there are no port wardens it calls for other state officers usually charged with and accustomed to ascertain the condition of ships or vessels arriving in distress.

It is not to be supposed if congress adopted, in the previous section, “ port wardens,” under the general appellation of “ proper officers, as well known to possess and exercise within the states the functions there called for, that in legislating further on like subject matters, they would, in the sixtieth section, name them specifically, or describe the qualifications of the other officers who might be used. But it is to be remarked that the term “ proper officers, is -twice used in the same paragraph of the fifty-second section, and in the latter case must necessarily refer fo some custom house officer, or one appointed under the authority of the revenue laws, because he is officially to take care of the goods ordered by the collector to be placed in store. It is not unworthy of observation that the phrase « proper officers” of the port or district in which the goods, &c. shall arrive does not apply to any public officers known to the laws of this state at the time the act of congress was passed, nor is it probable that such officers were created in any of the other states. The powers of port wardens do not, under the colonial or state statutes, extend beyond the port of New-York; (Act March 7,1759, 2 Smith Livingston, 160; Act 14ib April, 1784, 1 Greenl. 86;) whereas the district of New-York was by the fifth section of the act of congress of March 2, 1799, (as it had been by the act of July 31,1789,) made to embrace nearly all the coasts, rivers, bays and harbors of the part of the state, including those of the North river. The city of New-York is, in the act of 1789, and all subsequent ones, made the port of entry; but it is manifest that there must be officers created under the acts, whose powers extend over the entire district. It may be as important to have proper officers of the revenue in other harbors on the coast within the district to take care of goods deposited there by the collector, as in that of New-York. And it may become of equal importance to have appraisements made at such places; because the whole regulation has reference to wrecks or disasters at sea, and will necessarily be ample enough to meet the exigencies that are likely to arise in this behalf in every port of the district.

Again, the argument in favor of construing the fifty-second section so as to have the expressions “proper officers of the port or district” apply to port wardens, rests upon the assumption that that class of officers notoriously possessed and exercised, under the state laws of the different states, the power of making surveys of goods alleged to be damaged on the voyage of importation, and determining the fact whether such damage had been received. There may be ground to doubt the entire correctness of this assumption. By the colonial act of March 7,1759, § 9, the master *545and wardens of the port of New-York, for the time being, are appointed surveyors, for surveying all damaged goods brought into the said port in any ship or vessel, and in like manner, with the assistance of one or more able carpenters, to survey all vessels deemed unfit to proceed to sea, &c. (2 Smith tfrLiv.Laws, 163.) An act was passed September 11th, 1761, with a preamble that, “ whereas goods imported here, and insured in Great Britain and elsewhere abroad, are sometimes sold in this city for the account of the insurers, and some persons taking the advantage of their absence, have frequently made fraudulent sales, to the great prejudice of the insurers, the undue gain of the assured, and detriment of the commerce of this colony; for a remedy, therefore, it is enacted that, hereafter, all damaged goods to be sold for account of the insurers, shall be surveyed by the master or one or more of the wardens of the port of New-York for the time being, and such sale shall be made in his or their presence,” &c. (Van Scfiaick’s ed. Laws N, Y. 394.) This act was continued in force to January 1, 1775. (Idem, 498.) If this act is to be regarded as suspending or superseding that of 1759, during its continuance or its expiration, the latter probably revived, and under the thirty-fifth article of the constitution of April 20, 1777, continued in force until the passage of the'act of April, 1784, by the state legislature. The eighth section of the latter act is a re-enactment of the ninth section of the act of 1759. (Jones Varick, Laws N. Y. 122. 1 Greenl. 89) The latter law, in substance, was continued under the various revisions of the statutes, till a revision and consolidation of the Jaws on this subject by the act of February 19,' 1819. (5 Laws N. Y. 11.) By the fifth section, it is enacted that the master and wardens of the port of New-York, or any two of them, with the assistance of one or more skilful - carpenters, shall be surveyors of any vessel deemed unfit to proceed to sea, &c. and in all cases of vessels and goods arriving damaged, and by the owner or consignee required to be sold at public action, on account of such damage, and for the benefit of underwriters out of the city of New-York. Such sale shall be made under the Inspection of the master and wardens, or some or one of them, which master and wardens shall, when required by the owner or consignee aforesaid, certify the cause of such damage, &c. and an after clause gives them $1,50 for each and every survey on board of any ship or vessel, or at any store or along the docks of the city of New-York, on damaged goods, &c. This is, in substance, a re-enactment of the provisions of the colonial law of 1761, and the language of the section clearly indicates it was based upon like reasons: and as the existing laws of 1784, must necessarily have been in view of the legislature, the implication is strong, if not conclusive, that the latter act was introduced to limit the authority of port wardens in making surveys of damaged goods to the single case theicih designated.

I am aware the vice chancellor in this circuit has put a different construction upon the act of 1819, and has held, from the grant of fees ior surveys on damaged goods, that the intention of the legislature to make the powers of port wardens the same as they hadflbeen under the act of 1784, is to be implied. This decision it is understood is in course of review before the chancellor; and it is not, therefore, to be regarded as authoritative on the point. And, with great respect for the learning and judgment of the distinguished judge who prmounced the opinion referred to, I *546think it must be, at least, matter of doubt, whether so important an interpretation to the act of 1819, can be authorized, upon the presumption afforded by the mere grant of fees; inasmuch as that provision may be reasonably satisfied by applying it to the particular surveys designated by the section. It is enough, however, in the case before me, to say that it is not made clear, by the laws of the state, that the port wardens are now possessed of authority to make surveys on all damaged goods brought into this port in any vessel, and certify the cause of such damage, and that accordingly, if congress intended to refer this service to state officers, the defendant fails to show that port wardens are “ the proper officers of the port or district” competent to perform such-services. But it is to be furthermore observed, that on the construction of the fifty-second section contended for by the defendant, a preliminary survey and certificate by port wardens can only be necessary for the purpose of guiding his discretion in ordering the goods to be deposited in a warehouse or storehouse. It is not urged that the port wardens have any authority to ascertain and appraise the damage ; and there' is nothing in the section importing that after the collector, for either cause indicated therein, has commanded the deposite of goods, that he can do less or more respecting them than pursue the precise directions of the act. The act is express and explicit in declaring that when the condition exists requiring the goods to be conveyed to a warehouse or storehouse, they shall remain there until the particulars, &c. shall have been ascertained in the manner afterwards provided in the same section.

It seems to me clear, therefore, that if the collector might under the act exact the certificate of a proper officer, on survey of the goods, before he would order their deposit in public store, because of damage incurred on the voyage of importation, yet that if he act upon the assumption of such damage, and orders the deposite for that cause, he is then bound to proceed and have the damage ascertained and ap. praised by the public appraisers, who by the act of 1823, supersede in this behalf ■the authority of merchant appraisers referred to in the fifty-second section. I am, accordingly, of opinion that the plaintiffs are entitled to judgment on the verdict.

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