In an action in the state courts of New York against the
Collector of the port of New York, the health officer of that port,
and the owners of warehouses employed for public storage to recover
damages suffered by an importer of rags by reason of their having
been ordered to the warehouses by the Collector and disinfected
there, and detained until the charges for disinfection and storage
were paid, a ruling by the highest court of the state that the
direction of the Collector to send the rags to the storehouses was
pursuant to the requirement that they should be disinfected, and
was in aid of the health officer in the execution of his official
power by the observance of the regulations made by him -- that the
Collector gave no order for their disinfection -- that the health
officer gave no such order -- that the defendants assumed to
disinfect them without authority, and hence that their charges were
illegal -- but that, as the Collector had properly sent the goods
to the warehouses for such
Page 160 U. S. 358
action as the health authorities might see fit to take, the
plaintiffs became liable for storage and lighterage, presents no
federal question for review by this Court.
This was a motion to dismiss a writ of error sued out by the
firm of E. B. Bartlett & Co., defendants in the court below, to
review a judgment obtained against them in the Supreme Court of New
York by the firm of Lockwood & McClintock, for a conspiracy to
have certain cargoes of rags belonging to the plaintiffs condemned
as unclean and infectious property. With the firm of E. B. Bartlett
& Co. was also impleaded as defendant Dr. William M. Smith,
sued as an individual, but alleged to be at the time of the
transaction Health Officer of the port of New York.
The complaint alleged in substance that in May, 1885, plaintiffs
imported by ship
Vigilant from Japan, and by bark
Battaglia from Leghorn, about 3,000 bales of rags, of
which plaintiffs were entitled to the possession and control; that
the defendant Smith, the Health Officer of the port, with intent to
injure plaintiffs, conspired with the firm of Bartlett & Co. to
have such rags condemned as unclean and infectious property, and to
require them to be disinfected under a process used by Bartlett
& Co., so that they would be entitled to charge plaintiffs
therefor, and to hold such rags until such charges were paid; that
Smith, under color of his office, wrongfully and unlawfully caused
such rags to be taken from the vessels, and transferred to the
place of business of said Bartlett & Co. for the purpose of
having the same disinfected, although he, as well as Bartlett &
Co., knew that the rags were clean and free from any infectious
matter, were not dangerous to health, and did not require to be
disinfected; that, by reason of such wrongful conspiracy and acts,
the rags were taken by Bartlett & Co., and kept by them from
June 5 to October 1, during which time they were partially
subjected to a pretended process of disinfection, which was
ineffectual and worthless for any real purpose of disinfection, and
which greatly damaged and injured the rags, but which process was
fraudulently and collusively approved of by said Smith with intent
to give Bartlett & Co. the monopoly of the disinfection of
Page 160 U. S. 359
rags, so that they might be able to extort from plaintiffs and
others large sums of money for such so-called "disinfection;" that
plaintiffs protested against such conduct, demanded possession of
their rags, which defendants refused to deliver until the charges
for the transfer and disinfection were paid, by reason of which
acts plaintiffs suffered large damages.
The answer of defendants Bartlett & Co. denied the
conspiracy charged in the complaint; admitted defendant Smith to be
the Health Officer, but denied
"that he had full charge and control over vessels and cargoes
coming into the port, except as authorized by the statutes of the
State of New York and the regulations of the United States and the
port of New York."
The action was tried in the supreme court before a jury, and a
verdict rendered for the plaintiffs as against the defendant firm
of Bartlett & Co. for $8,000, the jury disagreeing as to the
defendant Smith. Judgment having been entered upon this verdict,
defendants appealed to the general term, which, upon a hearing
before three judges, directed that, upon plaintiffs' stipulating to
reduce the original judgment in the sum of $1,675.16, the judgment
as to the residue be affirmed. The stipulation was given, and the
judgment reduced accordingly. Defendants appealed from this
judgment to the Court of Appeals, which ordered that the judgment
should be reversed and a new trial granted unless plaintiff
stipulated to reduce the recovery of damages to $3,182.52. 130 N.Y.
340. The case being remitted to the supreme court and the
plaintiffs having given the stipulation required by the judgment of
the Court of Appeals, judgment was entered in favor of the
plaintiffs for $3,914.05, to review which judgment defendants sued
out this writ of error.
Page 160 U. S. 360
MR. JUSTICE BROWN, after stating facts as above, delivered the
opinion of the Court.
There is certainly nothing in the pleadings in this case to
indicate a federal question. It is simply an action of
conspiracy
Page 160 U. S. 361
to injure the plaintiffs, and it does not appear from the
complaint that the validity of any statute of the United States, or
any authority exercised under the United States, was drawn in
question. The answer of the principal defendants, Bartlett &
Co., sets up no claim of privilege or immunity under any statute of
the United States, or any authority exercised thereunder. Indeed,
there is nothing anywhere in the record to indicate that any
federal statute or authority was specially set up or claimed in the
state court.
Error, however, is assigned to the action of the court in
holding that, under the statutes of the United States, neither the
Treasury Department nor the Collector had a right to order the
disinfection of the plaintiffs' rags, and also in holding that the
rags were not disinfected under the order of such department or the
Collector of customs.
The real question is whether the acts of which plaintiffs
complain were done in pursuance of federal or state authority, or
were the unauthorized acts of the defendants themselves. While,
under its power to regulate foreign and interstate commerce, the
authority of Congress to establish quarantine regulations, and to
protect the country as respects its commerce from contagious and
infectious diseases has never in recent years been questioned, such
power had been allowed to remain in abeyance, and Congress,
doubtless in view of the different requirements of different
climates and localities, and of the difficulty of framing a general
law upon the subject, has elected to permit the several states to
regulate the matter of protecting the public health as to
themselves seemed best. Their power to do this was recognized by
this Court in
Morgan v. Louisiana, 118 U.
S. 455. Congress has also confirmed such power by
requiring (Rev.Stat. § 4792) that
"the quarantines and other restraints established by the health
laws of any state, respecting any vessels arriving in, or bound to,
any port or district thereof, shall be duly observed by the
officers of the customs revenue, . . . and that all such officers
of the United States shall faithfully aid in the execution of such
quarantines and health laws, according to their respective powers
and within their respective precincts,
Page 160 U. S. 362
and as they shall be directed, from time to time, by the
Secretary of the Treasury."
Upon the trial, it was shown that the
Vigilant arrived
at the New York quarantine May 30, 1885, with 2,920 bales of rags
belonging to the plaintiffs. The Health Officer passed her at
quarantine and gave her a permission to proceed, which stated as
follows with respect to the cargo: "Cargo general (rags excepted).
The vessel has permission to proceed." There was some dispute as to
whether the words "rags excepted" were a limitation upon the
permission of the vessel to proceed or a qualification of the words
"general cargo." The testimony of the Health Officer indicated that
it meant that the vessel was to be allowed to proceed to her dock
and discharge her cargo, other than rags. Both parties evidently
acted upon the theory that these words did not require an unloading
of the rags at quarantine, as the vessel was allowed to proceed,
and did proceed, to her dock, and on June 1 a permit was granted by
the proper Health Officer of the City of New York "to land and
store said rags, provided the same be not broken from the bulk in
the bales they are now in." Thereupon plaintiffs went to the custom
house to enter the goods, but the Collector declined to receive the
entry, and plaintiffs went with their counsel to Washington to lay
the matter before the Secretary of the Treasury.
At this time, the subject, so far as it came within the
jurisdiction of the federal authorities, was regulated by two
circulars issued by the Secretary of the Treasury, the first of
which bore date of November 15, 1884, and prohibited
"the unlading in the United States of old rags shipped from and
after the 20th instant from foreign ports, or countries now or
hereafter known to be infected with contagious or epidemic
diseases,"
and further provided that
"no old rags shall be landed at any port of the United States
except upon a certificate of the United States consular officer at
the port of departure that such rags were not gathered or bailed
at, or shipped from, any infected place, or any region contiguous
thereto."
The second circular, dated December 22, 1884, modified previous
circulars, and directed that
"no old rags
Page 160 U. S. 363
except those afloat on or before January 1, 1885, on vessels
bound directly to the United States shall be landed in the United
States from any vessel, nor come into the United States by land
from any foreign country, except upon disinfection at the expense
of the importers, as provided in this circular, or as may hereafter
be provided."
Certain processes of disinfection were specified in this
circular, and other directions given for landing and storing rags
for the purpose of disinfection.
A letter bearing date January 12, 1885, addressed to the
Collector of customs at New York, in reference to the landing and
storage of rags to be disinfected, approved of the selection of the
Baltic stores in Brooklyn, which belonged to the defendants
Bartlett & Co., as a proper place for that purpose, and
directed that
"where rags requiring disinfection form part of a cargo, they
will be placed on lighters as fast as discharged, and the lighter
loads will be taken to the place above designated."
It appeared from this letter that Mr. Bartlett, one of the
defendants, had written a letter to the department touching the
selection of a warehouse for the storage and disinfection of old
rags; that the matter had been referred to the health officers of
New York and Brooklyn, both of whom agreed as to the propriety of
designating the Baltic stores for that purpose. Two days after this
letter was written, and on January 14th, the Collector of the port
made a general order that,
"on the entry of old rags shipped on and after the 1st instant,
and which have not been disinfected prior to importation, the
permit to land will have written on the fact thereof directions to
the inspector to send the rags to the Baltic stores in Brooklyn, by
bonded lighters for disinfection,"
and further providing that, upon evidence that the rags had been
satisfactorily disinfected, an order for their delivery would be
made.
These were the regulations in force at the time plaintiffs made
their visit to Washington. The Secretary of the Treasury, upon
examining the law upon the subject, became satisfied that there was
no statute which gave him any authority except in aid of the Health
Officers of the ports (Rev.
Page 160 U. S. 364
St. § 4792), and, in accordance with such conclusion, he
telegraphed the Collector of customs on June 5 that
"as to rags per
Vigilant, from Japan, which importers
claimed were mostly on board prior to January 1st, you are directed
to submit all to Health Officer Smith, and to be governed by him in
the matter."
On June 6, the Collector wrote to the Health Officer notifying
him of the receipt of this telegram and asking to be advised
whether, in his judgment as Health Officer of the port, the rags
might, with safety to the public health, be allowed to be landed,
and, without disinfection, to go into consumption. In reply to
this, the Health Officer wrote upon the same day detailing the
result of many medical conferences and sanitary investigations, and
stating that he did not claim that it was necessary for the
protection of the public health that all rags should be
disinfected, although it was "impossible to determine what may and
what may not be admitted with absolute assurance of safety," and
concluding that it seemed advisable that for the present the rule
for the disinfection of rags should be general, and that the rags
on the
Vigilant should not be an exception to the
rule.
He did not, however, give any positive directions that the rags
should be disinfected, and testified upon the stand that he gave no
order that these rags should be disinfected, either at Bartlett's
store or elsewhere.
Before, however, the Secretary of the Treasury had acted in the
matter, and before his telegram to the Collector of June 5 had been
sent, a general order was issued by the Collector on June 3
directing the inspector on the
Vigilant to allow to be
landed and sent
"to the public store No. __, E. B. Bartlett's, South, all
merchandise for which no permit or order shall have been received
by him contrary to this direction,"
with certain exceptions that did not include rags in the body of
the paper, although the words, "Rags, A. W. H." were written across
the face of it. On June 9, the Collector made a further order
that
"the inspector in charge of the ship
Vigilant from
Hiogo, Japan, under general order made June 3, 1885, will allow to
be landed and will send on bonded lighters to Baltic stores (E. B.
Bartlett & Co.'s, South) for
Page 160 U. S. 365
disinfection, all rags for which no permit shall have been
received, and will make return thereof, as of an order or
permit."
On the following day, June 10, the Secretary of the Treasury,
pursuant to his conclusion that there was no statute which gave him
any authority in respect to the landing and disinfecting of
imported rags except in aid of the Health Officer, issued a
circular or order to all Collectors of customs in the following
terms:
"Whereas, it has been conclusively shown to the department that,
under existing laws, no general regulation can be legally framed
whereby the disinfection of old rags can be accomplished in foreign
ports to the satisfaction of the several health authorities,
therefore it is ordered:"
"1. That all circulars of this department concerning the
disinfection of imported old rags are hereby revoked, and that all
old rags hereafter imported from foreign countries shall only be
admitted for entry at the custom house upon the production of
permits from the Health Officers at the ports of importation, duly
authorizing the landing of the same."
"2. Vessels carrying old rags, arriving at any United States
quarantine, will be detained by the quarantine officers, and held
subject to the order of the proper health authorities at the port
of destination."
On the same day, Dr. Smith, the Health Officer of New York, gave
a certificate that the rags per ship
Vigilant from Hiogo,
Japan, "to be disinfected, are not from a cholera-infected
port."
The rags were accordingly, and in pursuance of the Collector's
instructions of June 9, taken to the Baltic stores, and there
disinfected by the defendants, who paid the lighter's charges, made
out a bill for these as well as for disinfecting and storage,
amounting to $4,904.90, for which they claimed a lien upon the
property.
The case of the
Battaglia did not differ materially
from that of the
Vigilant. The bark arrived and was
entered at the custom house on June 6, 1885, with 150 bales of rags
belonging to the plaintiffs. On June 9, a general order was made,
allowing the discharge of the cargo, but "omitting rags."
Page 160 U. S. 366
On June 11, the Secretary of the Treasury wrote to the Collector
at New York, stating that the consignees desired to be covered by
the circular of June 10, which placed the control of the
disinfection with the Health Officer, and that the department had
no objection to this. On June 13, the Collector enclosed a copy of
this letter to the Health Officer, inquiring of him whether he
would designate the place and process appropriate. From a letter
written by the Collector to the Secretary of the Treasury, June 19,
1885, it would appear that the Brooklyn Commissioner of Health
refused to allow the unloading of the rags in Brooklyn unless they
were approved by the Health Officer, and that he therefore ordered,
under Rev.Stat. § 2880, the unloading of the rags and their
transfer by bonded lighter to Robbins' Reef for disinfection,
provided the health officials of New York City would permit such
transfer from the
Battaglia to the bonded lighter. On June
17, the Health Officer certified that the rags were "to be
disinfected at Robbins' Reef, if health commissioner of Brooklyn
will not give permit for Baltic stores." The charge for the
lighterage of these rags and for their disinfection and storage
amounted to $409.25, for which amount defendants claimed a lien
upon them.
As we have observed already, there is nothing in the record from
which a federal question can be raised in this case. If we look
beyond the record to the opinions of the court, we find that the
general term held:
1. That the Revised Statutes did not authorize the Collector to
take possession of these rags as unclaimed goods and store them in
a private bonded warehouse such as the Baltic stores.
2. That the acts of the Collector could not be justified by
sections 4792 and 4793, requiring him to aid in executing the
health laws of the state.
3. That the Health Officer did not directly order the seizure of
these rags, their conveyance to the Baltic stores in the one case,
and to Robbins' Reef in the other, and their disinfection by the
disinfecting company, the defendants.
4. That the Collector, having no power to send any but
Page 160 U. S. 367
unclaimed goods to the public stores, could not refuse a permit
for these goods to land and cause them to be sent to the public
stores to be disinfected at the expense of the owner, and if he did
so, he as well as all other persons who detained the goods because
of nonpayment of these unauthorized charges became liable in
damages for such unauthorized detention.
5. That the act of the Collector, being without authority, could
confer no authority upon defendants to hold the goods until the
charges incurred because of the unauthorized acts of the Collector
were paid.
Had the matter rested here, it might perhaps have been claimed
that the state court had ruled adversely to an authority exercised
under the United States; but, on appeal to the Court of Appeals,
the judgment of the general term was varied to the extent of
holding that the defendants were liable only for detaining the
goods until the charges for disinfection were paid. That court held
in substance:
1. That the direction of the Collector that the rags be sent to
the Baltic stores and Robbins' Reef was pursuant to the requirement
that they should be disinfected, and pursuant to the direction of
the Secretary of the Treasury, and in aid of the Health Officer in
the execution of his official power.
2. That the work of disinfection was not conducted under the
supervision or control of the Health Officer, nor pursuant to his
employment of the defendants, and that the Health Officer had
testified that he never gave any order for the disinfection of the
rags, and that the defendants assumed to do this work without any
direction of the Health Officer, and without approval by him of the
efficiency of the work or the charges resulting from it.
3. That this objection was not applicable to the charges for
lighterage and storage, and that the Collector was justified in
directing, as he did, the sending of the rags to these places, and
the expense of such transfer was a lien upon the property.
4. That the charges for lighterage paid by the defendants,
according to the custom in such cases, and for the storage for
Page 160 U. S. 368
the time the rags properly remained with them, were a lien upon
the property.
5. That so far as defendants required payment of the further
claim for disinfection as a condition of the delivery, they were
chargeable with duress of property, and that the plaintiffs were
entitled to recover this amount from them.
The result, then, of this summary of the case, is briefly
this:
The defendants claimed, as a federal question, that they had set
up as a defense to this action an authority exercised under the
United States,
viz., an authority given by the Collector
of customs to disinfect these rags.
In relation to this, the general term held that the Revised
Statutes gave no authority to the Collector to take possession of
these goods and retain possession of them, and that his seizure of
the goods, and causing them to be sent to the Baltic stores was an
unauthorized act, and if he caused them to be disinfected, he
became liable in damages.
The Court of Appeals, however, held that the direction of the
Collector that the rags should be sent to the places where they
were taken was pursuant to the requirement that they should be
disinfected, and in aid of the Health Officer in the execution of
his official power, by the observance of the regulations made by
him; that
the Collector gave no order for their
disinfection; that the Health Officer gave no such order, and
that the defendants assumed to disinfect them without authority,
and hence their charges therefor were illegal; but that, as the
Collector had properly sent them the goods for such action as the
health authorities might see fit to take, the plaintiffs became
liable for storage and lighterage.
It follows, then, that as the Court of Appeals ruled as matter
of fact that the Collector never ordered the rags to be disinfected
-- a ruling which is not reviewable here,
Dower v.
Richards, 151 U. S. 658;
In re Buchanan, 158 U. S. 31;
Israel v. Arthur, 152 U. S. 355,
and, as matter of law, that he had the right to send them to the
proper warehouse for disinfection, it appears that the ruling was
in favor of, and not against, the validity of the authority set up
and claimed under
Page 160 U. S. 369
the laws of the United States. We may add in this connection
that, as it clearly appears that the Collector had no authority to
order the goods to be disinfected, we think the Court of Appeals
was correct in holding that his somewhat ambiguous order for June 9
directing that the goods should be sent to the Baltic stores for
disinfection should be considered as an order to send the goods for
disinfection in case such disinfection were ordered by the Health
Officer. The disinfection, if ordered at all, was ordered by the
Health Officer, and the charges for this are all for which the
defendants were held liable. Whether such order was ever given by
the Health Officer was a question solely within the jurisdiction of
the state court.
The writ of error must therefore be
Dismissed.