There is certainly nothing in the pleadings in this case to indicate a Federal question. It is simply an action of conspiracy
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 has 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,
Upon the trial it was shown that the Vigilant arrived at the New York quarantine May 30, 1885, with 2920 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 baled 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,
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 14, 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 face 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.
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 bounded lighters to Baltic stores, (E.B. Bartlett & Co.'s, South,) for
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 $4904.90, for which they claimed a lien upon the property.
The case of the Battaglia did not differ materially from that of the Vigilant. The barque 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."
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
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
5. That, so far as defendants required payment for 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 defence 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
The writ of error must, therefore, be