We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if any, committed by his subordinates, on the facts of this case. There is nothing in the evidence to connect the defendant personally with any such wrong. No evidence was given that the officers in question were not competent, or were not properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort; but to permit a recovery against the collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person. This principle is well established by authority. It is not affected by the fact that a statutory action is given to an importer to recover back, in certain cases, an excess of duties paid under protest; nor by the fact that a superior officer may be held liable for unlawful fees exacted by his subordinate, where lawful fees are prescribed by statute, and where such fees are given by law to the superior, or for the act of a deputy performed in the ordinary line of his official duty as prescribed by law. The government itself is not responsible for the misfeasances or wrongs or negligences or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guaranty to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments and difficulties and losses, which would be subversive of the public interests. Story, Ag. § 319; Seymour v. Van Slyck, 8 Wend. 403, 422; U.S. v. Kirkpatrick, 9 Wheat. 720, 735; Gibbons v. U.S., 8 Wall. 269; Whiteside v. U.S., 93 U.S. 247, 257; Hart v. U.S., 95 U.S. 316, 318; Moffat v. U.S., 112 U.S. 24, 31, 5 Sup. Ct. Rep. 10; Schmalz's Case, 4 Ct. Cl. 142. The head of a department, or other superior functionary, is not in a different position. A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances or negligences or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties. Story, Ag. § 319. In Keenan v. Southworth, 110 Mass. 474, it was held that a postmaster was not liable for the loss of a letter, occasioned by the negligence or wrongful conduct of his clerk. The court said: 'The law is well settled, in England and America, that the postmaster general, the deputy postmasters, and their assistants and clerks, appointed and sworn as required by law, are public officers, each of whom is responsible for his own negligence only, and not for that of any of the others, although selected by him and subject to his orders.' The court cited, to sustain this view, Lane v. Cotton, 1 Ld. Raym. 646, 12 Mod. 472; Whitfield v. Le Despencer, Cowp. 754; Dunlop v. Munroe, 7 Cranch, 242; Schroyer v. Lynch, 8 Watts, 453; Bishop v. Williamson, 11 Me. 495; Hutchins v. Brackett, 2 Fort. (N. H.) 252. To the same purport are Bailey v. Mayor, 3 Hill, 531; Conwell v. Voorhees, 13 Ohio, 523, 543; Story, Bailm. §§ 462, 463; 1 Bell, Comm. (5th Ed.) 468; 2 Kent, Comm. (4th Ed.) 610, 611. The very qus tion here involved came before the circuit court of the United States for the Southern district of New York, in the case of Brissac v. Lawrence, 2 Blatchf. 121, (in June, 1850.) The defendant was the collector of the port of New York. Imported goods belonging to the plaintiff had been deposited in a custom-house warehouse, and were either lost or mislaid there, or were delivered to some person not entitled to them. At the trial it was sought to show carelessness on the part of the defendant, as the head of the custom-house department, in the manner in which the books of the warehouse were kept, and also that the book-keeper was a person of intemperate habits and unfit for the situation. On the other hand, it was proved that the books were kept in conformity with the mode usually adopted at the time for keeping books of that kind; that the intemperate book-keeper had been discharged; and that, during a period of 19 months, out of 200,000 packages of goods which had been received at the warehouse in question, only two packages had been lost. Mr. Justice NELSON, in charging the jury, submitted to them the question whether the collector had been guilty of personal negligence in respect to the goods. In the course of the charge, the court said: 'The collector is not personally responsible for the negligence of his subordinates in the custom-house department, and therefore he is not responsible for the negligence of persons employed in the warehouse department. * * * In order to charge the defendant with the loss, it is necessary that the plaintiffs should satisfy you, by affirmative and reasonable testimony, that the collector was personally guilty of negligence in the discharge of his duty, either by misdeed or by omission. * * * This is a suit against the collector, who did not have charge of the goods; and, in order to render him liable, you must find him to have been guilty of personal neglect, misfeasance, or wrong. * * * In view of the fact that the collector of New York has charge of all the business from which two-thirds of the entire revenue of the United States is collected, and has thousands of subordinates, and upon the evidence that only one package out of every one hundred thousand which passed through the hands of those subordinates has been lost, it is strange that this case has been so urgently pressed, with the idea that, upon any principle of equity, much less of law, there could be any liability on the part of the collector.' The jury found a verdict for the defendant. See, also, U.S. v. Brodhead, 3 Reporter, 95; Whart. Ag. § 550.
The judgment of the circuit court is reversed, and the case is remanded to that court, with a direction to grant a new trial.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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