U.S. Supreme Court

Stacey v. Emery,97 U.S.642 (1878)Stacey v. Emery

97 U.S.642

ERROR TO THE CIRCUIT COURT OF THEUNITED

STATES FOR THE MIDDLE DISTRICT OFTENNESSEE

Syllabus

A., a collector of internal revenue, seized certain whiskeybelonging to B. for the condemnation and forfeiture whereofproceedings were afterwards, at the suit of the United States,brought in the proper court. The court rendered a judgmentdismissing them, and, "it appearing that the seizure, thoughimproperly made, was made by his superior officer, the supervisor,"ordered that

a certificate of probable cause be issued to A. B. broughttrespass against the supervisor.

Held:

1. That the certificate was a bar to the suit.

2. That the motive of the court for granting it makes no part ofthe record, and should not have been recited therein.

The facts are stated in the opinion of the Court.

Page 97 U. S. 643

MR. JUSTICE HUNT delivered the opinion of the Court.

Emery, a supervisor of internal revenue, was sued by Stacey forcausing the seizure of a quantity of whiskey belonging to him,which had been libeled by the collector of internal revenue, underEmery's direction, and subsequently released, on dismissing theproceedings against it.

That judgment and the accompanying order are in the wordsfollowing:

"It is, therefore, considered by the court that the informationin this cause be dismissed and that the delivery bond given by theclaimant for the property seized in this cause be discharged. It isfurther ordered by the court that the cost be certified to theproper accounting officers for payment, and that a certificate ofprobable cause of seizure be issued to W. D. Peabody, collector, itappearing that the seizure, although improperly made, was made byhis superior officer, the supervisor."

Emery justified as supervisor, and upon demurrer to his pleassetting up the certificate of probable cause as above set forth,judgment was given in his favor.

Stacey then sued out this writ of error, which is based on theground that the certificate is no protection to Emery.

It is contended that the certificate protects the collector, onthe sole ground that he acted as a ministerial officer, inobedience to the orders of his superior, and that the granting ofthe certificate in this form implies that the seizure was madewithout probable cause. These facts, it is said, determineconclusively that the seizure was wrongfully made, and that thedefendant was a trespasser in making it.Gelston v.Hoyt, 3 Wheat. 246;TheApollon, 9 Wheat. 362.

The defendant must and does base his exemption from liabilityfor an unauthorized seizure of the plaintiff's goods upon the Actof March 2, 1799, 1 Stat. 696, sec. 89, which provides asfollows:

"When any prosecution shall be commenced on account of theseizure of any ship or vessel, goods, wares, or merchandise, andjudgment shall be given for the claimant or claimants if it shallappear to the court before whom such

Page 97 U. S. 644

prosecution shall be tried that there was a reasonable cause ofseizure, the said court shall cause a proper certificate or entryto be made thereof, and in such case the claimant or claimantsshall not be entitled to costs, nor shall the person who made theseizure or the prosecutor be liable to action, suit, or judgment onaccount of such seizure or prosecution."

Under this act, if it appeared to the court that there was areasonable cause of seizure, it was its duty to cause a propercertificate to be made thereof. This was its sole duty in thisrespect, and its decision is conclusive. The reason entitling thedefendant to exemption or the motive for granting the certificatemakes no part of the record, and should not be recited therein. Ifthe prosecutor had called together a jury of twelve good men priorto the seizure and had taken their judgment whether the goods wereliable to seizure and had acted upon it, this circumstance shouldhave found no place in the record. Its recital would have beensurplusage simply.

So when the court states as a reason for granting a certificateof probable cause of seizure by the collector that the seizure wasmade by the direction of his superior officer, this statement isirrelevant and superfluous. The certificate of probable cause isall there is of it. The residue of the sentence is out of the case.The unusual form of the certificate should work on prejudice to therights of the defendant.

The act we have cited provides that when such certificate shallbe made, neither the party making the seizure nor the prosecutorshall be liable to action on account of such seizure orprosecution. The collector who made the seizure has been certifiednot to be liable, and the present defendant, the party directingthe seizure -- that is, the prosecutor -- is equally entitled toexemption.

Generally it is the duty of the district attorney of the UnitedStates to prosecute for all violations of the customs revenue lawsor the internal revenue laws of the country. Rev.Stat., sec. 838.No doubt he falls within the protection of this statute of 1799, asdoes the collector of customs, who is expressly authorized by theact of 1796 to direct actions to be commenced to recover thepenalties for the violations in that act specified.

Supervisors of internal revenue are authorized to beappointed

Page 97 U. S. 645

by the Act of July 20, 1868, 15 Stat. 143, 144. It was made apart of their duty

"to see that all laws and regulations relating to the collectionof internal taxes are faithfully executed and complied with, to aidin the prevention, detection, and punishment of any frauds inrelation thereto."

It was in the discharge of this duty to see that the laws werefaithfully executed and to aid in the detection and punishment offrauds that the defendant gave the direction complained of.

We are of the opinion that this officer, equally with thedistrict attorney and customs collector, is entitled to theprotection given by the act of 1799.

The complaint alleges that the seizure of the goods was illegaland wrongful and malicious, and it is now contended that acertificate of probable cause affords no protection where theseizure is malicious.

This is an error. The question of malice or of good faith is notan element in the case. It is not a question of motive. If thefacts and circumstances before the officer are such as to warrant aman of prudence and caution in believing that the offence has beencommitted, it is sufficient. Whether the officer seized theoccasion to do an act which would injure another, or whether hemoved reluctantly, is quite immaterial.

Mr. Justice Washington says, inMunn v. Dupont, 3 Wash.37: "If malice is proved, yet if probable cause exists, there is noliability. Malice and want of probable cause must both exist" tojustify an action. He then defines probable cause in thesewords:

"A reasonable ground of suspicion, supported by circumstancessufficiently strong in themselves to warrant a cautious man in thebelief that the party is guilty of the offence with which he ischarged."

Chief Justice Shaw defines it in similar language: "Such a stateof facts as would lead a man of ordinary caution to believe, or toentertain an honest and strong suspicion, that the person isguilty."Ulmer v. Leland, 1 Me. 135.

InForhay v. Ferguson, 2 Den. (N.Y.) 617, the rule islaid down by Bronson, C.J., in the same language, with thisaddition: "And such cause will afford a defense to a maliciousprosecution, however innocent the plaintiff may be." In that case,there was evidence to justify a finding that the prosecution

Page 97 U. S. 646

had been from a bad motive. This rule is so clear, that it isnot necessary to multiply authorities.

In the case before us, the certificate was of "probable cause ofseizure."

The authorities we have cited speak of "probable" cause. Thestatute of 1799, however, uses the words "reasonable cause ofseizure." No argument is made that there is a substantialdifference in the meaning of these expressions, and we think thereis none. If there was a probable cause of seizure, there was areasonable cause. If there was a reasonable cause of seizure, therewas a probable cause. In many of these reported cases, the twoexpressions are used as meaning the same thing:Talbot v.Seeman, 1 Cranch 1;Carringtonv. Merchants' Insurance Co., 8 Pet. 495;United States v.Riddle, 5 Cranch 311;SixtyPipes of Brandy, 10 Wheat. 421;United Statesv. The Recorder, 2 Blatchf. 119. Although informal in this, asin the terms already referred to, we are of the opinion that thecertificate is sufficient to protect a prosecutor, and that thedefendant is to be ranked as of that class.

Judgment affirmed.