25. Where a statute gives a person discretionary powers, to be exercised by him on his own opinion of the facts, the law constitutes him a judge of those facts. This does not preclude the proof of malice or other circumstances to impeach the integrity of the transaction. In Martin v. Mott, 12 Wheat., 31, it is said, "Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts." Wilkes v. Dinsman, 7 How., 89, 132. It is urged that the discretion of the collector may be abused and perverted to oppressive purposes. This argument will apply to every case in which discretion may have been reposed in an individual. It would be impracticable to carry on the government in all its details without confiding in some instances in the judgment and discretion of public officers; and the numerous decided cases which have enunciated the principles which regulate the responsibility of public of ficers, in whom a discretion has been reposed by law, establish not only those principles, but the numerous instances in which the legislature have been constrained to impose on officers the duty of doing acts involving on their part the exercise of discretion and judgment. The argument that discretion may be abused is to be addressed to the legislature as to the expediency of imparting any. When it is given it is the duty of the court to see that the legal principles are applied to each case in which a controversy as to its exercise may arise. No better settled principle exists than the one enunciated by foregoing authorities. A contrary one, in the language of Chief Justice Taney, would indeed "be pregnant with the greatest mischief." 3 How., 98. In municipal seizures the party who seizes does so at his peril, with the knowledge that their legality is to be tried by tribunals to which the adjudication of them is awarded. If condemnation follow he is justified; if an acquittal, he must refund in damages for the tort, unless he can shelter himself under some statute. The seizure is deemed a ministerial act; hence, various statutory provisions have been passed, enabling the party to protect himself in the event the goods seized are not condemned, by procuring from the court a certificate of probable cause of seizure.

These cases of municipal seizure do not apply to this case. This action is not brought for damages, for the commission of a mere ministerial act. The statute on which defendant relies authorized and required him, as collector, to sell forthwith all perishable goods and explosive substances. In the performance of that duty he had to form a judgment as to the condition of the goods, and that judgment must be necessarily based upon the facts. Now we have seen that where a statute gives a person discretionary power to be exercised by him upon his opinion of certain facts, it is a sound construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. Martin v. Mott, 12 Wheat., 31. In the case at bar the statute required him to sell forthwith perishable articles. To sell any other would have been an abuse of power. To perform the duty imposed upon him he must, ex necessitate, pass upon the question of perishability or explosiveness. How otherwise could the fact have been ascertained? The law provides no other way. His duty was not, as in case of a municipal seizure, to hold the goods to await judicial action; but having them in possession they "shall" be sold "forthwith." How can he sell without ascertaining the condition of the goods? What can he invoke for the examination save his own intellect, the discretion and judgment to which the law had left it? If, when he is im

pelled by no corrupt motive or negligence so gross as to amount to fraud, the facts on which he acted are to be submitted to a jury in every case in which a party may feel aggrieved, then those facts which the law has confided to the discretion and judgment of the collector will be transferred to juries whose verdicts in different cases might embody different results upon similar statements of facts. It would subject the officer to indefinite liability, and seriously embarrass the government in the execution of the laws; for in a case like the present the validity of the sale and the title of the purchaser of the goods would depend on the opinions of the jury as to the facts acted on by the collector.

It has been urged very strongly that the case of Warne v. Varley, 6 D. & E., 443, is conclusive in favor of the plaintiffs in this case. Now that case simply affirms the distinction between a ministerial and a judicial or quasijudicial act. The action was against defendants for an alleged illegal seizure and detention of goods. The defense was that defendants were appointed under an act of parliament which authorized them to view and search all tanned hides and skins that should be brought to Leadenhall market. That plaintiffs had offered for sale in the market hides which had not after the tanning thereof been well and thoroughly dried, in the judgments of the defendants, according to the true intent and meaning of the said act of parliament; wherefore defendants had seized and carried them away until it might be duly tried in manner as directed by said statute; and that they had given due notice to the lord mayor, that triers might be appointed for trying the same according to the statute, etc. The plaintiffs replied that the said skins were dried according to the true intent of the statute, that they had been duly tried by persons appointed by the lord mayor, who determined that the said skins were properly dried, and that said leather had been restored to them. Now, in that case the statute, so far from reposing any discretion, any quasi-judicial power in the seizors, expressly excluded them from it by reserving the question of fact to be ascertained by others, to be appointed in the mode prescribed by the statute. The searchers were in the position of those who make a municipal seizure. They were only justified in making seizures in cases deemed legitimate by the appropriate tribunal to which the adjudication of them was confided. The law only authorized them to seize undried leather, within the meaning of the statute; and whether the seizure was legal did not depend upon the judgment or discretion, however honest, of the seizors; but on those of others selected by the law, and subject to whose decision the seizure was made. The act of the former was deemed merely ministerial; that of the latter was quasi-judicial. The language of Mr. Justice Lawrence renders it evident that the distinction between the two kinds of acts was kept in view. "It is clear (he says) that, in all cases where a protection is given to a judge, it is incumbent on the party justifying the particular act to show he was acting as a judge.

"In this case the defendants were not acting as judges; they had seized the leather in order to carry it before other persons,— the triers, who were to act as judges." 6 D. & E., 450. It is clear, then, that the seizors were not acting in the exercise of a quasi-judicial power; because all discretion as to the condition of the goods was expressly vested out of them, and in others, by the very law under which they themselves acted. Had those persons found against the leather, and the owner had sued them, nothing short of a corrupt motive could have rendered them liable in damages. It does not appear to the court

that the foregoing case conflicts with the principles enunciated by preceding decisions.

§ 26. Under the act of 1842, section 12, perishable or explosive goods are to be sold forthwith, and shortness of notice does not render the collector liable.

The second ground taken by plaintiffs is, that they are entitled, independently of all other considerations, to a verdict, because the sale of the goods was not made in conformity to law. The twelfth section of the act of 1842, amended by the act of August, 1846 (Dunlop, 1106), which authorized the sale, applies to two distinct classes of goods. The body of the section refers to one class of goods to be sold, viz., such as have been deposited in the public stores, and shall have remained therein one year without the payment of duties and charges. Such it directs to be appraised by the United States appraisers, and if there be none, then by two respectable merchants appointed and sworn by the collector; and after such appraisement they shall be sold at public auction, on due public notice as prescribed by a general regulation of the treasury department; that at said public sale distinct printed catalogues with the appraised value thereof shall be distributed, and a reasonable opportunity afforded to persons to purchase. The foregoing details are made to protect the sale of the first class of goods; and a neglect of any one essential particular would render a collector liable. These details enumerated in the enacting part of the section are not even inferentially alluded to when the act speaks in its proviso of the second class of goods, the perishable and explosive articles. This proviso declares that all such shall be sold forthwith. It has been urged that the details regulating the sale of the first class of goods apply to the second, mentioned in the proviso. The office of a proviso is generally either to except something from the enacting clause, or to qualify and restrain its generality, or to exclude some possible ground of misinterpretation of it as extending to cases not intended by the legislature to be brought within its purview.. Minis v. The United States, 15 Pet., 445. When, therefore, the legislature, as in this case, in the proviso declares that all goods of a perishable nature shall be sold forthwith, it expressly exempts such from the provisions of the enacting clause. It seems that when congress directed the immediate sale of the second class of goods they intended to commit the regulation of the sale exclusively to the collector, as no precise rules could be prescribed without the hazard of defeating the whole law in regard to perishable goods. It cannot, therefore, be justly considered that the details of sale enumerated in the body of the twelfth section apply to the second class of goods, referred to in the proviso. The rule of law enunciated by the decisions is well settled. The court cannot relax it. It must be uniform, though it may operate harshly in particular cases. The defendant having honestly exercised his discretion, whatever view may be taken of the erroneous or mistaken manner in which he acted, he cannot be made responsible in this case. Let judgment be entered for the defendant.

§ 27. Who is an officer.- An office is a public station or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. A clerk appointed by the assistant treasurer at Boston, with the approbation of the secretary of the treasury, under the general appropriation act of July 23, 1866 (14 Stat. at Large, 200), is a public officer. His employment was in the public service, he was appointed pursuant to law and his compensation was fixed by law, and his duties were continuing and permanent, not occasional or temporary. And as such officer, in charge of the public moneys, he is indictable under the act of August 6, 1846 (9 Stat. at Large, 59). (MILLER, GRIER and FIELD, JJ., dissented.) United States v. Hartwell, 6 Wall., 385.

§ 28. A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other. Ibid.

§ 29. The third section of the act of June 14, 1866, is confined to the officers of banks and banking associations. Ibid.

§ 30. Where, under a statute of Wisconsin, the governor entered into a contract with a party appointed by the legislature to make a geological, mineralogical and agricultural survey of the state, by which said party stipulated to perform the duties, and on the part of the state it was stipulated that a certain sum per annum should be paid him, and the contract was to continue for five years, it was held that the employment contracted for was not an office, and the party was not a public officer; and that the repeal of the act providing for said survey could not affect the liability of the state for his compensation under his contract. Hall v. Wisconsin, 13 Otto, 5.

§ 31. A surgeon appointed by the commissioner of pensions is not an officer of the United States. United States v. Germaine, 9 Otto. 508.

§ 32. The act of congress of March 2, 1863 (12 Stat. at Large, p. 696), provides in the first section that any person in the land or naval forces of the United States, etc., who shall steal, embezzle, etc., any money or other property of the United States, "shall be deemed guilty of a criminal offense, and shall be subject to trial and punishment by court-martial in the manner provided for in the act." In the third section of the act it is provided that any person not in the military or naval forces, etc., committing any of the acts prohibited in the first section, shall forfeit and pay to the United States the sum of $2,000, and, in addition, double damages, etc. A paymaster's clerk in the navy is a person in the land or naval forces of the United States under the first section, and is not liable under the third section to the penalty provided for, but only to actual damages in an action by the United States against him. United States v. Bogart,* 3 Ben., 257.

§ 33. A person was appointed clerk at the fractional currency counter of the treasury department in Louisville by the direction and with the approbation of the secretary of the treasury. This appointment constitutes him an officer within the meaning of the constitution of the United States and of the statutes in regard to officers charged with the safe-keeping of the public money. United States v. Bloomgart, 2 Ben., 356.

§ 34. Liability generally. The executive officers of the United States are personally liable at law for damages in the ordinary forms of action for illegal official or ministerial acts or omissions to the injury of an individual. United States v. Kendall, 5 Cr. C. C., 163.

§ 35. Proof that a sheriff or other public officer acted as such is sufficient to charge him as such. Lawrence v. Sherman, 2 McL., 488.

§ 36. Officers of a court who have custody of property seized, pending the suit, are responsible for any loss or injury sustained by want of due diligence. Burke v. Trevitt, 1 Mason, 96. § 37. An officer is liable for malfeasance where he disposes of the property to the injury of the defendant without complying with the requisites of the law. Corning v. Burdick, 4 McL., 133.

§ 38. Where a ministerial officer acts in good faith, he is not liable for exemplary damages for an injury done; but he can claim no further exemption where his acts are clearly against the law. Tracy v. Swartwout, 10 Pet., 80.

§39. If an officer attach and take possession of personal property of a firm, in Massachusetts, on a writ against one partner who has no equitable interest in such property, he is a trespasser. Cropper v. Coburn, 2 Curt., 465.

§ 40. An officer having a warrant against a person in his custody may hold him under it, without informing him that he is arrested upon it. United States v. Omeara, 1 Cr. C. C., 165.

§ 41. Money in the hands of an officer can only be reached by the interposition of the court. Reno v. Wilson, Hemp., 91.

42. A levy on personal property, shown by the officer's return to be of sufficient value to pay the debt, discharges the defendant, and the plaintiff must look to the officer for his money. Campbell v. Pope, Hemp., 271.

§ 43. If a delivery bond is not taken, property levied on is at the risk of the officer; it is his own so far that he may bring an action to recover it, and he is responsible for its forthcoming to answer the execution. Ibid.

§ 44. The officer whose duty it is to enforce legally the claims of the United States against delinquents may, for the benefit of the government, exercise a reasonable discretion in the management and compromise of suits. United States v. Hudson, 3 McL., 156.

45. The officer levying an attachment upon property is the agent of both plaintiff and defendant and may be liable to either. Starr v. Moore, 3 McL., 354.

46. Every public officer is required to perform all duties which are strictly official, although they may be required by laws passed after he comes into office, and may be cumulative upon his original duties, and although his compensation therefor be wholly inadequate. Andrews v. United States, 2 Story, 202.

$47. Where a statute with regard to process is directory to the court or to the clerk, and not to the sheriff, the latter is bound to obey the writ as he receives it; but as the indorsement of the true species of the action upon the writ is required by the act of assembly of Virginia, that the sheriff may see whether bail is to be demanded or not, he must be judge himself, and act at his peril. United States v. Mundel,* 6 Call (Va.), 246.

§ 48. Acts after expiration of term.- A sale of land by a marshal on a venditioni exponas, after he is removed from office, and a new marshal appointed and qualified, is not void; and such sale being returned to the court and confirmed by it on motion, and a deed ordered to be made to the purchaser at the sale, by the new marshal, such sale being made, is valid. Lessee of Doolittle v. Bryan, 14 How., 565.

§ 49. At common law, if a sheriff seize goods on execution, and go out of office before the sale thereof is completed, he may proceed to sell them. Kent v. Roberts, 2 Story, 591.

$ 50. It seems that where an attachment is made by a sheriff, who resigns his office before execution issued, he is not the proper officer to levy it. Ibid.

§ 51. Presumptions in favor of acts.- Where a statute confides a discretion to an officer, a party dealing with him in good faith may assume that the discretion is properly exercised, and if the discretion is vested in a superior officer while the transaction is with the subordinate, the contractor may assume that the discretion has been properly exercised, and that the subordinate is acting in accordance with his superior's orders. The contract need not be in writing in case of military exigencies. In such cases the only duty of the quartermaster is to procure the needed article on the most reasonable terms, and in the most expeditious way. (DRAKE, C. J., dissented.) Thompson v. United States,* 9 Ct. Cl., 187.

§ 52. An officer will always be presumed to have done his duty. Corning v. Burdick, 4 McL., 133.

§ 53. Public officers, when acting under the scope of their duties, must be presumed to have fulfilled every requisite which the discharge of their duty demands. Russell v. Beebe, Hemp., 704.

§ 54. Official duty is presumed to have been regularly performed. United States v. Humason, 5 Saw., 537.

§ 55. It is to be presumed, prima facie, that a sworn officer has discharged his duty faithfully. Dunlop v. Munroe, 1 Cr. C. C., 536.

§ 56. The presumption is, until the contrary is made to appear, that a public officer has done his duty. Alvord v. United States, 13 Blatch., 279.

existence of other acts to make them An order of sale set forth that a claim

$57. Acts of public officers which presuppose the legally operative are presumptive proof of the latter. had been allowed by the administrator, but was silent as to its approval by the judge. The judge who made the order of sale was the judge to approve the claim. The order was held to be presumptive proof of the requisite approval. Cornett v. Williams, 20 Wall., 226. § 58. Officers are presumed to have done their duty. Cofield v. McClelland, 16 Wall., 331. $59. Upon the presumption that the officers of the government performed their duty, the conclusion of the court of claims that the proceeds of certain cotton, belonging to the claimant, had been paid into the treasury, and that the claimant was entitled to judgment, was affirmed. (DAVIS, SWAYNE and MILLER, JJ., dissented.) United States v. Crusell, 14 Wall., 1. § 60. If an officer prove that he acted as a public officer, he is presumed to have been duly appointed or elected until the contrary appear. It is not necessary for him to produce the certificate of his election. Dayton v. Wyoming National Bank,* 1 Wyom. T'y, 263.

§ 61. The acts of a public officer to whom a public duty is assigned, within the sphere of that duty, are prima facie taken to be within his power. But the force of this presumption must, from the nature of things, vary with the circumstances. And where, as in this case, a grant purports to have been made by a governor of California under Mexican rule, within a few weeks of the time when the government of the territory passed from his hands, and "during the very heat and conflict of the struggle in which his power was overthrown,” where the evidence that the formalities required by law were observed is imperfect and unsatisfactory and rests wholly in parol, where it does not appear that any preliminary inquiries were made as to the point on which he is supposed to have exceeded his authority, and where the situation of the granting officer, and the mode in which he exercised his authority in other cases, at or about the period when the grant purports to have been issued, suggest the suspicion of carelessness, if not recklessness, in the exercise of his powers, under all these circumstances the presumption loses much of its force, if it be not entirely repelled. United States v. Cambuston, 7 Saw., 575.