IN .RE GR:MLEY.
85
years of age at the time or the alleged enlistment renders the (n'istment void. The military tribunal could not acquire jurisdiction over the petitioner for the purpose of punishing him for desertion, because he was not a proper subject for, and had not entered upon, actual military service. It is admitted by the counsel for the defendant that the civil courts have power to inquire into the jurisdiction of military tribunals, and that is a proposition dispute. The position taken by the respondent here is that, the military tribunal having found that the petitioner was in the military service of the United States, it is not open to this court to review that finding. It does not appear from the record that the military court entered specifically into the question of the age of the petitioner at the time of his enlistment. The court do not fiud as a fact ihat he was within the ages called for by the statute, but the district attorney says thlj-t thi.s may be inferred from the fact that he. was found by the military tribunal to be in the military service of the United States. It is further argued that this finding cannot be attackeg in a collateraL proceeding like the one before us, but that it can only be reviewed by the military tribunal itself, or by an appellate court, and that this pourt .does not occupy the position of an appellate court. In considering the. now raised, it must be borne in mind that we are dealing with a .question of jurisdiction. We are not denying the right of a military tribrinaJto punish a deserter, or to exercise the rightS and powers given to ,such tribunals under the sta.tute. It is not a question of mere irregularity ill the form 01' mode of' proceeding, which might properly be corby the court which committed such error, or by an appellate tribunal; but it is a question which j:!;oes to the very foundation of the pro.ceedings before themilitarytl'ibunal, for, if that tribunal did not have jurisdiction, then its acts are absolutely null and void, and they may be :attacked in any collateral suit. For example, the non-appointment in a .civil suit of a guardian ad litem for an infant would be irregular, but the irregularity .must be corrected by the court itself, or by an appellate .court.. Thejud,gment or decree in the case would not. be void, and could not be attacked in a collateral suit. On the other hand, if the minor had not been served with process, so as to bring him within the. jurisdiction of the. court, the whole proceeding would be absolutely void, and .could be attacked in any collateral action. Where the court has ·no jurisdiction over the person or subject-matter, its judgm611t is void everywhere. Where thejudgmerit is only voidable from irregularity,it is nec.essar9' to go to the court itselfwhere the action is pending, or to the appellate court, to have the error corrected. The general finding of the mili" that the petitioner was in the military service of the United 'states can be no bar to an inquiry into a jurisdictional fact. Otherwise the findings of military tribunals in respect to all jurisdictional questions would be a bar to any proceedings on the part of the civil court. It seemS to me that such a doctrine strikes at the foundation of. the right ,of the civil courts to inquire into the jurisdiction of military tribunals. 1t is saying, in effect, that all a military tribunal has to do to prevent
86
FEDERAJ. REPORTER,
yol. 38.
any inquiry by a civil court is for itself to find that it had jurisdicti911. I am clear in my mind that under this petition this court has aright to determine whether the military tribunal had any lawfuljurisdictioI). over the petitioner at the time. Under the law regulating enlistnwnts it seems to me that the petitioner was not a proper subject for military service, and therefore it follows that the military tribunal never a,cquired any jurisdiction over his person, and that its acts are void. The order of the district judge discharging the prisoner should be,affirmed.
RUBENS 'V. ROBERTSON.
(Oircuit (Jourt, 8. D.New York.
February 00,1889.)
Where a statute confers discretion on a public officer. ,which is exercised by him in good faltll. the courts cannot review his action,though based on false reports made by negligent subordinates. ', '
CUSTOM
The collector of customs Is not responsible In damages for acts on the part of his subordinates, in the absence of proof that such subordinates were known by him to be careless or Incompetent. or by him, without proper care, Following RobertBon v. Sichel, 127 O.S. 507,8 Sup. Ct. Rep. 12l:l6. " , A of customs who sells unclaimed goods In pursuance of section
8. SAME-TRoVER,.-CASE.
even though is not liabiein'trover. orln an action on the case , it appears th,at there wasnp substantial deterioration, if he acted faith, and was not personally guilty of negligence. , , 4. SAME. Whcrea statute authorizes the collector of the port to Bell goods" upon due notice, " andtlle clerk wbose duty It was to give Buch notice, failed to put up, any notice the collector could not be held liable for, his negligence in that regard. in the absence of proof of on his part In the selection of the partioular individual who was assigned to that duty. ' Go SAME. ,' ,, . , , The collect9r of the ,port cannot be charged with negligence in delegating to the appraiser the duty of.examiIiingmerchandise. and reporting whether it Is deteriorating in'value within the meaning of section 2976 of the Revised Statutes. .
2976 of the Revised Statutes. in the belief that they are deteriorating hi. value,
At Law. On motion for direction of verdict. This was an against a former collector of the port of New York to l'ecover damages tor the alleged conversion of plaintiff's goods. . In July, 1884, .plaintiff imported from Marseilles 16 bales of hare-skills, which are by law free of duty. Not having received his bill of lading, plaintiff did not enter his goods, and :they were sent, to bonded warehouse ae on general order. In October of tM Bame year the collectof,having been informed by the owner Mthe warehouse that the goods were deteriorating, requested the appraiser to make an examination and report. .The appraiser reported that "the skins are in a
RUBENS V. ROBERTSON.
87
very bad condition; the pelts are nearly destroyed." The assistantappraiser,. who made the report, admitted upon the trial that he had not personally examined the goods, and had seen only a small sample which had been brought hinl. Upon the receipt of this report the collector proceeded to sell the goods in pursuance of section 2976 of the Revised Statutes, and the regulations of the treasury department. The clerk in charge of the sale of unclaimed goods in the law division of the customhouse testified that he had posted a notice of the sale for not less than six days in a conspicuous place in the rotunda of the custom-house. The skins were sold on November 15th, at public auction, for $137.50. The purchaser resold them 21 days later for ,$1,017 .21. Evidence was given on the'trial to the effect that the bulk of the skins when sold were in good condition. It was admitted that the proceeds realized at the collector's sale were, after paying expenses, freight, and warehouse charges, paid into the treasury of the United States. It was also shown upon the ·trial that.skins of this character were the ofvery frequent importation, that the pelts were comparath'ely worthless, and that almost their entire value was in the fur, which wal:l used for making hats. On February 9, 1,885, plaintiff went to the custom-house to enter his goods for ·consumption, when he for the first time learned of the sale. Horwitz & Hershfield, for plaintiff. Stephen A. Walker, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty., fordefendant. LACOMBE, J., (orally.) This is a csseof the extremest hardship, and I am extremely loath to tum the plaintiff out of court, and refer him ·to CO!;lgress for redress; but the case must be determined upon the rules df law as the court understands them. Much has been said here of the fact that no defense is presented by the collector. If thisw.are in fact an action of trover, as in form it is; if the collector were the personal baileeofthese goods; if it appeared that William H. Robertson, defend· ant here, had been intrusted with the goods by the plaintiff, and had failed to 'account for them when called for,-a conversion would be shown, and in an action of trover upon that showing, no defense being pleaded, and sustained, the plaintiff would be entitled to recover. But, as I understand the theory of the law, William H; Robertson, defendant, personally and individually never had the custody of these goods. They were impounded by the federal government,-were put in its bonded "warehouse,-:-and his only relationship to the goods was that he, under the laws enacted by congress, was the offiCial custodian of them. Collectors, like all public officers, have to act by subordinates, and it is ele,mentarylawthat they are not responsible for the negligence of such subordinates, but only for their own. If, after these goods went to the public store, they had been sO placed in their particular storeage room 8S to be damaged by oil trickling upon them, or if a bv,rglar had entered the public warehouse and made off with one of the bundles, or if the · very bonded warehouseman himself, or the janitor, or whoever was the there, had embezzled and decamped with them,
88
FEDERAL REPORTER,
vol. 38.
the collector would not have been personally responsible. He would still be the official custodianj but, under the principle repeatedly laid down, he would not be liable for the negligence or default of his subordinate, unless he had himself employed an incompetent subordinate, knowing him to be incompetent, or unless, after he had knowledge of the fact that the subordinate employed by him was not fit to discharge his duties, he had failed to make the proper efforts to secure his removal, or unless some other personal negligence on his part were shown. Robertson v. Sichel, 127 U. S. 507, 8 Sup. Ct. Rep. 1286. In other words, there must be some personal negligence of a public officer shown before he can be held liable in an action for negligence. And it is only as an action for negligence that, in my judgment, this suit could be maintained. If the testimony made up a case of negligence, I should, before sending the caSe to the jury, entertain a motion to amend the complaint, and allow it to. be cast into the form required in an action for damages for negligence. So that the mere form of pleading is immaterialj for the court will amend in furtherance of justice in any proper case where, as here, there is no. surprise totheother side. Applying these principles to the case in hand, treating it as an action for negligence, two classes of subordinates are to be considered, viz., those· who acted before the collector formed the opinion referred to in section 2976, and those who acted subsequent to the formation of that opinion. if the collector employed in the law division With regard to the of the custom-house a clerk whom he had every reason to suppose proper and competent to perform his duty, to take charge of the sale of un,claimed merchandise, and see that proper notices were put up,(and there is no evidence to show any negligence in the selection of the particular individual who was assigned to that duty,) then for the failure· of that individual on any particular occasion to put up any notice-for his negligence in that regard-the collector could not be held liable. The case reduces itself, then, to the single question whether the collector acted negligently in accepting the report made to him as to thecondition of the goods. That report was made by a subordinate whom he selected, and in the selection of whom no negligence can fairly be· charged,against the collector on this evidence, for he was the very sameofficer who was being employed constantly by the government and by the collector himself to appraise and value merchandise of all kinds and ,sorts that come to thii' port. Having confided to that officer the duty . of examining the goods and reporting upon tJJeir condition, he received obis report, and acted upon it. It is quite true, as plaintiff insists, that the only portion of the report which was fairly before the collector is thestatement that the condition was badj that the pelts weredamaged,--if .I get the exact words. So far as the examiner or appraiser has gone on to give his individual opinion as to the application of the two sections, of course the report is entirely immaterial. He did, however, report, 'as it appears here, that "the skins were in a very bad conditionj tha pelts werenearlydestroyedj" and that "these goods are bought and sold by dozen," etc. Those .statements are statements of fact, irrespective:
89 of any opinion as to the application of the sections formed and reported by the appraiser. The only question left in the case, then, is whether upon such a statement of fact, in connection with the other facts which it is claimed are shown in this case, and which it is claimed in this case are matter of COmmon knowledge to the collector, he was warranted in forming the opinion that by reason of the prospective damage it was liJ>:ely that the value of these goods would he insufficient to pay the storage on the same if they remained in the public store for the year. That is a question which calls for the exercise of the discretion which was expressly confided by statute to the collector. And in a case of that kind it would take something far stronger, than has been proved here to induce the court to review the discretion which was thus exercised. I do not find, in any of the authorities which I have been able to look at overnight, (and I consulted a number which I do not referto here,) any case where the court has gone to the length to which it is asked to go now in reviewing a dif'cretion confided expressly to a public officer to act upon reported facts. For these reasons I am satisfied that, should I send this case to the jury, any verdict which the plaintiff might recover would be set aside when it reached the supreme court. Verdict directed for the defendant.
McCoY"'.
HEnDEN,
Collector. February 21. 1889.)
(Oircuit Oourt, S. D. NffUJ York.
1.', CuSTOMS DUTIES-STATUTES-CONSTRUCTION. Words in a tariff act are to be generally interpreted according to their mean· ing in the trade and commerce of the country at the time of the passage of the act. ' 2. SAME-WHAT DUTIABLE. Curry-combs. made of wood and iron. are not dutiable under a provision 1n the tariff act for "combs of all kinds," if at the time of the passage of the act they Were not known in.-trade among merchants as "combs." 8. BAME-'STATUTEB-CONBTRUCTION. Where a clause in a tariff act is ambiguous, and. no light for its interpreta· tion can be derived from provisions of prior statutes relating to the same sub· ject, that construction must be adopted which is most favorable to the im· porter. '- BAHE.
The word "saddlery, It in the provision in Schedule N of the tariff act of March 3. 1883, for "coach and harness furniture of all kinds. saddlery. coach, and harness hard ware," etc., is to be taken as a noun, and not as an adjective qualifying "hardware."
At Law.
This was an action to recover duties alleged to have been exacted in excess of the lawful rate on certain curry-combs imported by plaintiff. The collector had classified them as "manufactures composed, in part of iron,not. spacially enumerated or provided for, "under the provisioq
