
    JOSEPH M. CUMMING ET AL. v. THE UNITED STATES.
    [No. 14573.
    Decided June 2, 1887.]
    
      On the Proofs.
    
    Prior to the Internal Revenue Regulations, August 20, 1867, a firm of wholesale liquor dealers occupies a building in New York, one of them being authorized to keep a bonded warehouse on the premises. The basement is used for the storage of free goods; the first floor as a place of business; the upper floors constitute the bonded warehouse. Two of the firm are likewise partners in another firm engaged in the production of distilled spirits. The new regulations forbid that any other business in distilled spirits be carried on in the building used as a bonded warehouse. Therefore a clerk of the firm applies for authority to keep the bonded warehouse. This application is approved, and the appointment made. He does not, in fact, own the warehouse, nor has any right of property or possession therein, the firm continuing in the occupancy and he continuing to be their clerk. Subsequently the warehouse is kept under surveillance, the books are taken and removed to the collector’s office, the removal of spirits is for a time forbidden, and the business is interfered with, though no seizure is made. The firm fails, and Congress refer the claim by a private act.
    I.When Congress, by special legislation, refer a claim of which the court has not jurisdiction, it must be held that the first propose of the act is to confer it.
    II.It must also be held that the propose of conferring jurisdiction was to enable the court to render substantial justice, if upon ordinary principles of law the claimant is entitled to it.
    III. Where a private act submits the question whether the Government is liable for certain alleged acts of its officers, the liability spoken of must be deemed to be the legal liability which an ordinary body-corporate, such as a municipal corporation, would be subject to for similar acts of its agents.
    IV. Where the interference of revenue officers with the general business of the claimants did not necessarily interfere with the exportation of alcohol on which they received a commission, the loss of that branch of their business comes under the rule of remote damages.
    V. Rent, insurance, and wages, being inoident to the ordinary business of a firm, and not caused-by the interference of certain revenue officers, do not enter into tiie question of damages.
    VI. The Treasury Department has exclusive jurisdiction of bonded warehouses, with power to order a seizure or to waive an irregularity and remit a forfeiture.
    
      VII. Where the Treasury Department, with knowledge of all the facts, determines that no just cause for the seizure of a bonded warehouse exists, the court cannot retry the issue properly witliin the jurisdiction of and actually determined by the revenue department, but must regard the decision as final.
    
      The Reporters’ statement of the case:
    This suit was brought under the following private act approved February 26, 1885:
    “AN ACT for the relief of Joseph M. Cumming, Hamilton J. Miller, and William McRoborts.
    “Be it enacted, that Joseph M. Gumming, Hamilton J. Miller, and William McRoberts, late copartners in the business of commission merchants and bonded warehousemen in the city of New York, be permitted to sue in the Court of Claims; which court shall pass upon the law and facts as to the liability of the United States for the acts of its officer, Joshua F. Bailey, by reason of the seizure, detention, and closing up of the commission houses and bonded warehouses of said copart-ners, for the breaking up and interruption of their said business, and for the seizure and detention of the property, books, and papers in and connected with said business, by Joshua F. Bailey, collector of internal revenue for the fourth internal revenue district of said State, or by said Bailey and other internal revenue officers. The United States shall appear to defend against said suit, and either party may appeal to the Supreme Court as in ordinary cases against the United States in said court; and said suit may be maintained, any statute of limitation to the contrary notwithstanding.”
    The following facts were found by the court:
    I. During the month of September, 1867, and for a long time prior thereto, the firm of J. M. Cumming & Co., wholesale liquor dealers, occupied the building in the city of New York known as No. 60 Broad street, and a part of the building known as 58 Broad street. Joseph M. Cumming, one of the firm, was authorized to keep a bonded warehouse under the internal-revenue laws on the premises. The basement of the building No. 60 was used by the firm for the storage of free goods, that is to say, of whisky and liquor manufactured anterior to the laying of an internal-revenue tax, or of liquor upon which the tax had been paid. The first floor was used as their place of business. The upper floors of the two buildings constituted the bonded warehouse of J. M. Cumming & Co., in which the goods of the firm were stored and bonded. At this time and previously Hamilton'J. Miller and William M. Boberts, two of the partners, were likewise partners in the firm of Boyle, Miller & Co., of Cincinnati, and as such were engaged in the production of distilled spirits in Cincinnati, Covington, and Peoria. It does not appear that J. M. Cumming was interested in the firm of Boyle, Miller & Co., or that he was in any way engaged in the production, redistillation, or rectification of distilled spirits. The following are the application, the bond, the approval, and the authority under which Cumming was keeping a bonded warehouse on the premises referred to:
    
      “Application of Cumming.
    
    “New York, April 8, 1867.
    “ Sir : I desire to have established as a bonded warehouse, Class B, for the general storage of distilled spirits in bond under the internal-revenue acts, a portion of the store situated at No. 60 Broad street, in this city, and in your collection district.
    “ The entire building is 25 feet wide by 80 feet deep, four stories high, with a cellar underneath it; is of brick, built in agreement with the requirements of the fire laws; has a slate roof, and iron shutters in the rear.
    “ The portion which I wish to bond is the first, second, and third lofts, or second, third, and fourth floors, the dimensions of each being, from outside to outside, 25 by 80 feet, capable of storing about 1,700 barrels of spirits in all. The cellar is occupied for the storage of general merchandise, and the first floor as a store for the transaction of business in general merchandise. The premises are adjoined on either side by similar fire-2>roof stores. One of these stores, No. 58, is occupied by me, and a portion of it is bonded for the general storage of distilled spirits in bond under the internal-revenue laws. The bonded portion of that store will be made to connect with No. 60, or with that portion of No. GO for the bonding of which this application is made.
    “As to insurance, the building is rated first class. The required certificate of officers of two insurance companies, that the premises for the bonding of which this application is made are suitable for the purpose applied for and are insured at the lowest rates, is subjoined hereto..
    “ Very respectfully, your obedient servant,
    “Joseph M. Gumming-.
    “Hon. Sheridan Shook,
    “ Collector Internal Revenue 32nd District, New Yorh.”
    
    
      
      uBonü.
    
    “Know all men by these presents, that we, Joseph M. Gumming, residing at No. 174 Second avenue, New York City, as principal, and Thomas Thacher, residing at 108 East 36th st., New York City, and Andrew Gross, residing at 21 Park avenue, N. Y. City, as sureties, are held and firmly bound unto the United States of America in the sum of fifty thousand dollars, for the payment of which, well and truly to be made to the United States, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents, as witness our hands and seals, at New York, this tenth day of April, eighteen hundred and sixty-seven.
    “The condition of this obligation is such, that if the above-bounden principals, or either of them, or either of their heirs, executors, administrators, or assigns, shall comply in all respects with the provisions and requirements of the warehousing and internal-revenue laws and the regulations of the Treasury Department made in pursuance thereof, and exonerate and hold the United States and its officers harmless from or on account of any risk, loss, or expense of any kind or description con nected with or arising from the deposit or keeping of any goods, wares, or merchandise that may be deposited in the warehouse herein described, under the provisions of any law now existing or hereafter enacted, or that may be deposited therein after being seized or distrained under the internal-revenue laws, and shall not store in the warehouse known as the bonded warehouse of Joseph M. Gumming, situated at No. 60 Broad st., New York City, any other goods, wares, or merchandise than those duly bonded for warehousing and designated to be deposited in such warehouse by the internal-revenue laws and ordered to be deposited therein by the collector or by his officer in charge or those seized or distrained under the internal-revenue laws, and shall pay to the proper officer, monthly, the salary of the officer or officers in charge of said goods, wares, and merchandise, and shall safely keep all goods stored therein, and shall deliver the same to the order of the collector of internal revenue, looking to the owner of said goods for the storage and charges, and shall not remove nor suffer to be removed from said warehouse any goods, wares, or merchandise stored therein without lawful permit and without the presence of the officer having custody thereof, or, in case of such removal, shall pay to the collector of internal revenue for the district the value of the merchandise so removed, and five thousand dollars as liquidated damages for such removal, then this obligation to be void; otherwise in full force and virtue.
    “Joseph M. Gumming.
    “Thomas Thachee.
    “Andeew Gross.”
    
      
      “Approval.
    
    “Internal Revenue,
    “32d Collection District, State oe New York,
    
      “New York, April 10, 18G7.
    “Hugh McCulloch,
    “ Secretary of the Treasury:
    
    “Sir: I have examined into the matter of the penalty as prescribed in the bond given by J. M. Cumming for bonding the warehouse at No. GO Broad street, in this city, and also as to the responsibility of the obligors therein named, and am satisfied that the penalty is ample, and the obligors perfectly responsible and abundantly able to respond in case of non-compliance of any of the conditions of said bond. I am also of opinion that the application of J. M. Cumming should be granted.
    “Yery respectfully, yours,
    “Sheridan Shook,
    “ Collector.”
    
      “Appointment.
    
    “Treasury Department, April 16th, 1867.
    
    “Sir : There have been received at this Department the application of J. M. Cumming, esq., dated April 8, 1867 (with accompanying papers), for the creation of certain premises, to wit, the 1st, 2d, and 3d lofts of premises situated No. 60 Broad street, N. Y. City, in the 32d collection district of N. Y., to be a bonded warehouse of Class B, under the U. S. internal-revenue laws, for the general storage of goods as provided in said laws (petroleum and its products excepted), together with your certificate of examination and recommendation, dated April 12, 1867, that the Secretary approve said application and its accompanying certified copy of bond.
    “You are respectfully informed that, by direction of the Secretary, said application is hereby granted, and the certified copy of the bond pertaining thereto hereby approved, of which you will please notify the collector of said district.
    “ The papers in this case are herewith returned.
    “Yery respectfully,
    “J. F. Hartley,
    
      “Assistant Secretary of the Treasury.
    
    “To the Commissioner oe Internal Revenue.”
    II. In consequence of the Internal Revenue Regulations, Series 3, August 29,1867, forbidding any other business in distilled spirits to be carried on in a building used as a bonded warehouse, and requiring that none of the warehousemen should be engaged in the production of distilled spirits, Thomas Miller, a clerk or superintendent of Cumming & Co., on the 12th September, 1867, applied to the collector of the thirty-second district for authority to keep a bonded warehouse at 58 and 60 Broad street; and the claimants, Joseph M. Cumming and Hamilton J. Miller, were his bondsmen. This application was approved by the collector, and on the 28th September, 1867, the appointment was made by the Secretary of the Treasury. Miller did not, in fact, own the warehouse, nor have any right of property or possession therein, the buildings being rented by Cumming & Co., who continued in the occupancy as stated in subsequent findings, and paid the rent thereof, while Miller continued to be a clerk in their employment. It does not appear that these facts of Cumming & Co.’s interest in the premises, and of Miller being one of their clerks or employés, were either disclosed to or concealed from the collector and Internal Revenue Department at the time of application. The following are the application, approval, bond, and appointment above referred to:
    
      “Application of Thomas Miller.
    
    “New Yoke, September 12th, 1867.
    “ Sir : I desire to have established as a bonded warehouse, Class B, for the general storage of distilled spirits in bond under the internal-revenue acts, the premises situated at and known as Nos. 58 and 60 Broad street, in the city of New York and in your collection district.
    “These premises are on the west side of Broad st., between Beaver st. and Exchange Place; are built of brick four stories high, with a cellar under each; each has metallic roof, iron shutters and doors. The cellar of No. 58 is 110 by 21 feet, the first and second floors are 80 by 21 feet, the third floor is 110 by 21 feet, the fourth floor is 80 by 21 feet; the cellar of No. 60 is 110 by 22 feet 5 inches; the first, second, third, and fourth floors are each 80 by 22 feet 5 inches. The whole are capable of storing 5,524 bbls. of distilled spirits.
    “The buildings are adjoined on either side by similar stores. They are rated as to insurance first class by the standard surveys of the New York Board of Fire Insurance Companies, having been erected in agreement with the requirements of the fire laws.
    “ The required certificate of officers of two insurance companies is subjoined hereto.
    “ Very respectfully, your obedient servant,
    Thos. Miller.
    “ 5,524 barrels = $62,500.
    “Hon. Sheridan Shook,
    “ Collector of Int. Rev. 22net Dist., New Yorh.”
    
      
      “Approval.
    
    “United States Internal Revenue,
    “Collector’s Office, 32d District, New York,
    “ New Yorlc City, September 20, 1867.
    “ This is to certify that the number of warehouses, Class B, already established in my district is not sufficient, and that the establishing of an additional bonded warehouse is absolutely necessary for the storage of bonded goods which may arrive or be produced in this (list.
    “ I also certify that Thomas Miller, the applicant for bonded warehouse No. 58 and 60 Broad st., New York City, is not engaged in the production, redistillation, or rectification of distilled spirits.
    “ I also certify that the building offered as a bonded warehouse is satisfactory in respect to location, construction, dimensions, and the means provided for receiving safe custody of the merchandise, whatever may be stored therein, is in every particular in accordance with law and the regulations of the Department.
    “ Sheridan Shook,
    “ GolleetorP
    
    [The bond and appointment of Miller were in precisely the same form as those of Cumming set out in Finding I.]
    III. In October, 1867, one Conatty was a revenue officer acting under Joshua F. Bailey, collector of the fourth internal-revenue district. On the 17th October, 1867, the following letter was sent by the Commissioner of Internal Revenue to the said collector:
    “Treasury Department,
    “Office of Internal Revenue,
    “ Washington, October 11th, 1867.
    “My Dear Sir: I went with Mr. Conatty to the Secretary, and to the Secretary I read your letter to me, and we there had conference in relation to its subject-matter.
    “ One object to be attained by the organization of the revenue board in New York was to correct existing jealousies between local officers and obviate complaints from collectors that neighboring collectors and their deputies were authorized to make seizures in their districts.
    “In the instrument signed by the Secretary and myself, under which the board was organized, it was provided that ‘ such revenue officers as may be designated by said board will be specially authorized by the Commissioner of Internal Revenue to make seizures within said districts, and are hereby required to report all seizures made to the said board and also to tbe collector of tbe district in which any seizures are made, and all special authority heretofore conferred on any officer to seize property within the said districts, or either of them, is hereby revoked.’
    “ Now to give authority to your deputies to seize outside your district would be in violation of the arrangement made at the organization of the board, and precedent would be established under which serious trouble might hereafter arise. I have accordingly sent three authorizations, with blank address, to Mr. Parnell who will fill the same with the approval of the board upon your recommendation.
    “ Mr. Parnell and his associates will co-operate with you, I am sure, by every means in their power for the enforcement of the law and the punishment of fraud.
    “ I have talked very fully to Mr. Oonatty upon the whole subject and he will report to you.
    “ Both the Secretary and myself earnestly desire to fully sustain efficient officers.
    “ Very truly yours,
    “E. A. Bollins,
    
      “ Commissioner.
    
    “J. F. Bailey, Esq.,
    “ Collector. íth Nist., New York.”
    
    On the 7th November, 1867, the following letter was sent by Collector Bailey, of the 4th district, to Collector Shook, of the 32d, in which district the bonded warehouse, 58 and 60 Broad street, was situated:
    “ Sir : I will thank you to give an order to allow Inspectors Barrows and Conatty, with a general inspector, to visit the warehouses of Cumming & Co., as I have reason to believe that a fraud on the revenue is being practiced there.”
    On the 21st November, 1867, the following letters were sent by Collector Bailey to Collector Shook:
    “ Sir : I have to request that you will direct all shipments from the warehouse of Cumming & Co., 60 Broad street, to be suspended. There are irregularities connected therewith that require thorough examination, and it is requisite to this end that removals should not be allowed.”
    “ Str : Will you please to authorize Mr. Barrows to visit tbe warehouse of Gumming & Co., Broad st., and also to compare with the bonded books.”
    On the 22d November, 1867, Deputy Collector Wm. H. Barrows made a report in writing to Collector Bailey, setting forth certain alleged irregularities in the bonded warehouse, 58 and 60 Broad street.
    
      On the 22d November, 1867, James Moncrief, esq., a lawyer in New York, on behalf of the claimants, sent the following letter to Collector Shook:
    “ Sir : As counsel for Messrs J. M. Cumming & Co., of Nos. 58 and CO Broad street, in your district, I wish you officially to state the reason for free whisky being found upon the premises — the two stores now being a bonded warehouse. An early reply will oblige.”
    On the 23d November, 1867, Collector Bailey made the following' report to the Commissioner of Internal Revenue:
    “ Sir : In the matter of seizure of Cumming & Co., 60 Broad st., I have to report that a thorough examination of their bonded warehouse has been made by Deputy Wm. H. Barrows, and irregularities of the grossest character have been proven. I did not feel warranted until the 15th inst. in making a seizure, although there were sufficient facts in my possession to warrant whatever degree of surveillance might be necessary. On the 15th I sent an order to beeper who had been placed on their premises for observation not to allow removal of spirits. This was in order to take control of their shipments, so far as to keep accurate account of everything going into or coming out of their warehouse, but shipments were not interfered with except to that extent. Two days ago, however, I notified Messrs. Cumming & Co., that I should seize on the street any spirits of theirs going out of their store. This action is fully warranted by the facts in the case, and rests on grounds not affected by the recent decision of the Hon. Commissioner in respect to spirits in bond.
    “Among the irregularities is a deficiency in the bonded account amounting to several hundred barrels, a detailed statement of which has been made up and will be submitted early in the coming week. It is not desirable that the evidence should be spread out, but early in the week decisive action will be taken.”
    On the 25th November, 1867, Collector Bailey sent the following letter to Collector Shook:
    “ Mv Dear Sir : This morning I was advised that 270 bbls., or thereabouts, of spirits was to be removed from warehouse 60 Broad st. I will thank you to furnish me with the marks of this lot, as there are certain lots in the warehouse in regard to which there are irregularities that require investigation. On being furnished with the marks I will state to you whether it is a part of suspected lots.”
    On the 29th November, 1867, the following letter was sent by Collector Bailey to Collector Shook:
    “ Sir : In consultation with Deputy Harland on Wednesday, he advised the closing of the warehouse of Cumming & Co., 60 Broad st., and the making no more removals. Under these circumstances I have to ask that you will give no further permits for removals until the Hon. Commissioner shall have taken action in the premises.”
    On the 2dDecember, 1867, Collector Shook ordered Inspector Appel to make an examination of the bonded warehouse by the following letter:
    “My Deae Sie: In accordance with an understanding had between Mr. Dep’y Commissioner Harland and myself, at are-recent interview, I have to request that you will proceed to the bonded warehouse at Nos. 58 and 60 Broad st., and make a thorough examination of the storekeeper account, of the number and contents of the packages, and of the general conduct of the affairs of the said warehouse.”
    On the 2d December, 1866, Messrs. Appel, Palmer, and Johnson, revenue officers, made an examination of the bonded warehouse, and on the 7th December, 1867, General Inspector Stevens, who had assisted in the examination, made the following report to Appel:
    “ Sie : In obedience to your instructions I have made an inspection of the entire lots of high wines, alcohol, cologne Spirits, and old whisky, stored in the bonded warehouse of Cumming & Co., No. 58 and 60 Broad st., N. Y.; I found all goods to agree with the marks ou the packages.
    “ I inspected each of the several lots separately; some of the whiskies were very old and choice. One lot of 315 barrels, said to be taken out “ for change of package” andreturned,Ifound to be an old whisky of fine grade.
    “ In my inspection of the whole stock I found nothing irregular or contrary to the general condition of all warehouses I have ever seen.”
    On the 7th December, 1867, the following letter was sent by Collector Shook to Appel:
    “My Deae Sie: „In reply to yours of this date requesting me to state officially the reason why free whiskey was found on the premises of Mess. J. M. Cumming & Co., Nos. 58 and 60 Broad st., the same being now occupied as a bonded warehouse, 1 have to say that prior to Oct’r 1st the bonded premises at the above place consisted of the two upper floors of No. 58, and three upper floors of No. 60. The two lower floors and cellar of No. 58, and the lower floor and cellar of No. 60 were free premises in which was permitted, under the regulations then in force, the storage of free goods. When the new regulations went into force, about the 1st of October, Mess. Cumming & Co. made application to and did bond the entire premises.
    
      “They had at this time in the cellars of these buildings a quantity of free whiskey, which I was assured was very valuable, and which had been there a long time. Application was made to me to allow it to remain there until Mess. Gumming & Co. could hire a place where it could be stored under their own supervision, and in consideration of the value of the whiskey, and of the probable loss to Mess. Gumming & Co. if they were forced to store it where they could have no control over it, I gave the requisite permission.
    “ The day Mr. Bailey and officers first visited the place, Cumming & Co. notified me that they had procured a cellar for the storage of the whiskey, and directions were given to have it moved.”
    On the 10th December, 1867, the following letter was sent by Commissioner Bailey to Commission Shook: ■
    “ Sie : Will you please to give to storekeeper, 60 Broad street, the directions to give to Inspector Koop the use of bonded-warehouse book to-day.”
    On the 11th December, 1867, the Commissioner of Internal Eevenuesent the following letter to Deputy Commissioner Parnell, in New York:
    “ Sie : I enclose herewith the report of Major Appel and sundry accompanying papers concerning the bonded warehouse at Nos. 58 and 60 Broad street, New York.
    “ The papers do not seem to show any reason for interruption of the ordinary transactions of business, and I therefore forward them to you in order that you may have conference with both the collectors, Bailey and Shook, upon the subject-matter, and give such direction, from your examination of the ease, as you believe correct.”
    On the 12th December, 1867, the following letter was sent by Commissioner Bailey to Commissioner Shook:
    “Sie: Will you please to allow Inspector Koop access to bonded book of warehouse, 60 Broad street.”
    No official correspondence relating to the claimants’ warehouse appears subsequent to the foregoing.
    IV. During the period of the official correspondence set forth in the preceding finding, and subsequently-thereto, the following events took place:
    On the 7th November, 1867, the officers named in the communication of th at date from Collector Bailey to Collector Shook, with another named Koop, went to the bonded warehouse, 58 and 60 Broad street, and stated to the official storekeeper in charge that they were authorized by Collector Bailey “ to seize the warehouse to make an examination.” The storekeeper demanded to know whether they held an order from Collector Shook, and in the absence of such an order, refused to admit them to the warehouse. The storekeeper then went and reported the facts in person to Collector Shook, who ordered that the inspecting officers be allowed to go in' and make the examination. It continued for several days, and the warehouse was kept under surveillance, but no interference with the business of Cumming & Co. occurred, other than such as was incidental to an examination of their books, and of the stock in the store, until the 15th November, 1867, when Collector Bailey ordered the keeper in charge not to allow the removal of spirits, and on the 21st notified Cumming & Co. that he should seize on the street any spirits of theirs going out of the store.. On the 22d November, 1867, Deputy Collector William H. Barrows, one of the inspecting officers above referred to, made a report to Collector Bailey setting forth the alleged irregularities in the bonded warehouse 58 and 60 Broad street, which are referred to in the report of Collector Bailey to the Commissioner of Internal Revenue, November 23, 1857, set forth in the preceding finding. In consequence of these two reports, the Commissioner of Internal Revenue appointed a committee to examine the bonded warehouse, consisting of Charles A. Appel, a clerk in the Internal Revenue Bureau in W ashington, of Albert Palmer, the deputy of Collector Shook, and of William Johnston, an inspector attached to the Metropolitan Board in New York. This committee made two examinations of the bonded warehouse, and twice reported that no cause for seizure existed. The second report was in writing bearing date the 7th December, 1867. It was received at the Internal Revenue Bureau shortly after its date, but cannot be found. It agreed in substance with the report of General Inspector Stevens, of the same date, set forth in the precedin.' finding. Subsequently to the report of the committee above referred to, the Commissioner of Internal Revenue determined, by his letter of December 11, 1867 (Finding III), that no cause existed for the seizure of Cumming & Co.’s goods, and that no irregularities had existed which required the closing of the bonded warehouse; after which, interference with their business ceased. But the business books of Cumming & Co. which had been forcibly taken from them by Collector Bailey against their protest were not returned to them, though it does not appear that they demanded or made any attempt to procure them after the investigation had ceased.
    Y. On the 27th December, 1867, certain bonded and business warehouses in Cincinnati, belonging to the firm of Boyle, Miller & Co., together with their contents were destroyed by fire. In June, 1869, Hamilton J. Miller a member of the two firms of Boyle, Miller & Co., and Joseph M. Cumming & Co., and William McRoberts likewise a member of both firms, made, and for the purpose of procuring a refund of taxes on the spirits destroyed in said fire presented, to the Treasury Department the following affidavits:
    “ State oe Ohio, Hamilton Go., ss :
    
    “ Hamilton J. Miller, of lawful age, makes oath and says that he is one of the firm of Boyle, Miller & Co., which said firm was composed of this affiant and Wm. McRoberts, and he was also proprieter of bonded warehouses Nos. 18 and 26 in the first district of Ohio.
    “Affiant further says that said warehouses were at Nos. 55, 57, and 59 Bast Columbia street, in the city of Cincinnati, and were, together with the distillery and business warehouse of Boyle, Miller & Co., entirely destroyed by fire on 27th day of December, 1867, at about 6 o’clock p. in. of said day.
    » * # * # # . «
    “Affiant says that the actual loss of Boyle, Miller & Go. from said fire, without calculating the loss by being compelled to suspend business almost wholly whilst their establishment was being rebuilt) amounted to the sum of $293,119.84.
    “Affiant further says that by reason of the immense losses sustained by said fire, and from no other cause whatsoever, the firm of Boyle, Miller & Co. have become financially embarrassed and obliged to suspend payment.
    “Affiant further says that the business-of Boyle, Miller & Co. was carried on in perfect good faith with the Government; that the schedules hereto attached show that from August, 1865, to Dec’r, 1867, they paid taxes at Cincinnati, Ohio, $1,128,833.96, and by their agents at otherpoints $1,179,850.32, making a grand total of two million three hundred and eight thousand seven hundred and thirty-four and rfo dolls., handling in that time one hundred and five thousand one hundred and twenty-four barrels of whisky, representing 5,630,406 galls.
    “Hamilton J. Miller.
    “ Sworn to before me and June, 1869. signed in my presence this 4th of
    [l. s.] “Reuben Tyler,
    “ Notary Public.”
    
      “ State oe Ohio, Ham. County, ss:
    
    “ William McRoberts, of lawful age, makes oath and says that he is one of the firm of Boyle, Miller & Co.; that he has read the affidavit of Hamilton J. Miller, and that the matters and things therein stated are true, and this affiant states of his own knowledge.
    “William McRoberts.
    “Sworn to before me and signed in my presence this 14th of June, 1S69.
    “Reuben Tyler,
    
      “Notary Public, Ham. Co., 0.”
    
    And the court finds that by reason of the losses so sustained in consequence of said fire, and from no other cause whatsoever, the firm of Boyle, Miller and Co. became financially embarrassed and obliged to suspend payment. And the court further finds that in December, 1867, or early in January, 1868, the firm of Cumming & Co. became financially embarrassed and was obliged to wind up its business and dispose of its stock at forced sales and at a heavy loss. But the books of the firm not being before the court, the court is unable to determine to what extent such closing of the business was causdd by the suspension of Boyle, Miller <& Co., and to what extent it was caused by the interference of the revenue officers as set forth in the previous findings; or whether it was due to other causes.
    VI. At no time did the Commissioner of Internal Revenue or the revenue board in New York authorize a seizure of the claimants’ property, and no seizure was in fact made. But for a period extending from about the 15th November, 1867, to about the loth December, 1867, the claimants’ business was interfered with and at times interruped by Collector Bailey and the revenue officers making examinations, as set forth in Finding III j their books were taken from them and sent to the office of Collector Bailey, so that they were unable to make collections and properly carry on their business; the removal of goods was prohibited, as set forth in Finding IV, and the seizure of goods upon the street threatened; they were unable to supply customers, and consequently lost the custom and good will of some of those with whom they dealt, and the stock of goods in th eir possession depreciated in value by reason of a falling market and leakage. The firm also lost credit and commercial sending in consequence of interrupted business, and of the apprehension that their stock might be, or was to be, seized for frauds upon the revenue.
    
      VII. At the time when Collector Bailey forbade the removal of goods from the claimants’ warehouse, as set forth in Finding' IV, there were stored and owned by them in bond 4,476 barrels-of whisky and distilled spirits, and 347 barrels of what were known as free goods. In consequence of the detention of these spirits and goods, as set forth in Findings III, IV, and VI, and the interruption of their business, and the seizure of their books by Joshua F. Bailey, collector of internal revenue for the fourth internal revenue district of the State of New York, and other internal-revenue officers acting under or with him, the firm of Joseph M. Cumming & Co. suffered damages in the amount of ($36,000) thirty-six thousand dollars.
    VIII. In addition to the business hereinbefore set forth, the firm of Cumming & Co. did a commission business in purchasing and shipping alcohol to foreign purchasers, on which no duty was imposed and w'hich did not go into bond. In consequence of their inability to continue, their general business the firm lost this commission business from which it had derived large profits, but the courtfinds that the acts of Collector Bailey before sfft forth did not directly affect the claimants’, business in alcohol, nor necessarily interfere with its continuance.
    IX. During the period in which the business of the claimants was interfered with by Collector Bailey and the revenue officers, as before set forth, the expenses of the firm of Cumming & Co. for rent, insurance, and employés continued, and amounted for that period to $5,300.
    
      Mr. David McAdam and Mr. Leonard Myers for the claimants:
    1. Where a Government official assumes an authority which the law does not warrant him in exercising, he is personally responsible. {Lx parte Milligan, 4 Wall, 3; Planters’ Panic v. Union Panic, 16 Wall, 483; Mitchell v. Harmony, 13 How. U. S., 115; Griffin v. Wilcox, 21 Ind., 370; Johnson v. Jones, 44 111., 142; Hough v. Hoodless, 35 111., 166; Wilson v. Franlclin, 63 N. C., 259; Hogue v. Penn, 3 Bush, 663).
    But where the injury was done in the exercise of orders from a superior authority, which the agent was powerless to resist, the wrong may be the same, but the remedy is by an appeal to the justice of the Government, or to such court of claims as the Government may empower to hear and allow claims against itself. There can be no other remedy under such circumstances. (Durand v. Hollins, 4 Blatch., 451; Ford v. Surget, 46 Miss., 130: Sutton v. Miller, 6 Ooldw., 593; Despan v. Olnev, 1 Curt., C. C., 306.)
    The seizure was made for the benefit of the Government, and as an act of Government; and after it was made it was sanctioned, ratified, and maintained by the Government. (Lord Coke, 4 Inst., 317,; and see Vanderbilt v. Turnpike Co., 2 Ñ. Y., 479; Drainerdv. Dunning, 30 N. Y., 211.) The Government is on this principle liable for the illegal acts of its officer which it expressly adopts. (.Wiggins v. United States, 3 C. Cls. R., 412; and see Duron v. Denman, 2 Exch., 167.) The Government having adopted the seizure and maintained it, in legal effect commanded it; and Bailey, even if otherwise personally liable, was by such adoption freed from all liability.
    2. There is no general authority in the Court of Claims for righting all wrongs done to individuals by the officers of the General Government, though they have been committed while serving the Government, and in the belief that it was for its interest. “ In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination.” (Langford v. United States, 101 U. S. R., 346.)
    Congress was applied to, and, in the exercise of its power in the premises, determined that Cumming & Co. were ¿ntitled to relief for the wrongs done to them, and passed the bill under which the present suit was commenced.
    3. The title of the act denotes the intention of Congress. It was for the relief of claimants. It specified with great particularity the wrongs done to them; and if it did not mean to compensate for them, then the court was empowered to consider a subject upon which no action was to be taken, which is a contention too frivolous to be seriously considered.
    4. It has been time and again decided by this court that when jurisdiction is conferred upon it by special enactment for relief, due regard will be had for the intention of Congress, and a liberal construction given to the law.
    The act of February 26,1885, is in the nature of a remedial, statute, requiring such a rational and liberal construction as will give effect to the just intention of Congress. (Roberts v. 
      U. 8., 92 U. S. B., 41; Cross v. U. 8., 14 Wall., 483; U. 8. v. Padelford, 9 Wall., 538.)
    5. Counsel for the Government consider it a defect that the language of the act does not state that the court is to render a judgment. This is a refinement which cannot avail. The right of appeal to the Supreme Court is given, which can only be from a judgment. Besides, the conferring of jurisdiction embraces every kind of judicial action upon the subject-matter, from finding the indictment to pronouncing the sentence. (RopMns v. Commonwealth, 3 Mete., 460.)
    6. Even if this claim originated in the tortious act of a Government officer, it was done by virtue not only of his office, but of a special power conferred upon him, and upon notice of the wrong, and failure to relieve it as the law demands, the act is adopted by the Government.
    7. If, however, there could originally have been a doubt as to this jurisdiction, the special act of Congress has set it at rest. By this private special act the Government has permitted itself to be sued for the several grievances suffered by Cumming & Co., set forth in the law itself.
    8. Where the damage arises entirely from the tortious acts of its officers, the Court of Claims has not under the general law any jurisdiction of a suit against the Government for such acts. Even were this such a case, the special act of February 26, 1885, confers such jurisdiction. The sovereign power has waived its privilege and permitted itself to be sued in order that justice maybe done.
    9. But it is respectfully insisted that no such question is at issue here. Notice to those exclusively representing the Government in the subject involved was repeatedly given, and the long detention of claimants’ goods and the breaking up of their business proceeded from its own default. (Addison on Torts, .1302.)
    10. A municipal corporation is not prima faeie liable for the tortious acts of its officers, though done virtute officii; but if such acts, not being wholly ultra vires, were done under the authority of the corporation previously conferred, or, without special authority, were done by its officers in the scope of their duties and employment, and have been squarely ratified by it, the corporation is liable. (Thayer v. Boston, 19 Pickering, 511; Wild v. N. Orleans, 12 La. An., 15; Fox v. Northern Lib., 
      3 W. & S., 103; Bank v. The Mayor, 43 N. Y., 184; Sowell v. City of Buffalo, 15 N. Y., 513; Dillon on Mun. Corp’s, §§ 766, 772.)
    11. Even on a contract made by a public officer in the line of his official duty the liability is public, not personal. (Olney y. Wicks, 18 Johns, 122; Nichols v. Moody, 22 Barb., 611; Sill v. Lauderdale, 46 N. Y., 74, 75; Story on Agency, ch. 11, § 302; Dunlap’s Paley’s Agency, 376, 377, cited in Nichols v. Moody, supra.)
    12. Since the sovereign is not, without his consent, answerable before the judicial courts at the suit of any one for acts done in his sovereign or political capacity, it naturally follows that any officer who exercises, in a degree however small, or about concerns however petty, any distributive portion of this power, cannot be thus held to answer. (2 Thompson on Negligence, 816.)
    13. Where the powers of a public officer are discretionary, to be exerted or withheld according to his own judgment as to what is necessary or proper, he cannot be held liable civilly for a neglect to exercise those powers, nor for the consequences of a lawful exercise of them, where no corruption or malice can be imputed, and he keeps within the scope of his authority {Kendall v. Stokes, 3 How., U. S., 87; Tompkins v. Sands, 8 Wend., 4S2; Gridley v. Palmerston, 3 B. & B., 275); and it has been laid down as a general principle that if a public officer simply errs in the discharge of his duty he is not liable. {JDon-alme v. Bichards, 38 Maine, 376; Seed v. Comoay, 20 Mo., 22 ; Allen v. Blunt, 3 Story, 472.) A Treasury agent acting under color of law, or a mistaken sense of duty, cannot be held liable in a private suit {McLeod v. Calieott, U. S. Ct.; 2 Am. Law Times, 113; 10 Int. Bev., 94); and a public officer may even justify a trespass by showing that he was acting under the authority of the Government, and obeying the orders of his superior officer {Luther v. Borden, 7 How., U. S., 1; Sespau v. Olney, 1 Curt., C. C., 306.) If the error of judgment or trespass injures an innocent third party, the latter may, nevertheless, have his remedy over against the principal on the familiar doctrine of respondeat superior.
    
    14. The act of Collector Bailey was not an act of malfeasance or non-feasance in office. It was not tortious or ultra vires in a sense that would make him personally answerable to Gumming 
      & Co. It was performed as an act of Government, in the name and for the profit of the Government, and not for any private benefit of his own.
    The general principle, recognized in the measure of damages, is that of compensation. * * * In cases of officious interference with property * * * the liability may extend to remote effects and losses, even to those that are the result of a natural chain of effects, produced and caused by the original wrong. (Field on Damages, § 32,-subd’s 3 and 5.)
    Unless compensation can be made as a substitute for that to which a party was entitled and of which he has "been more or less deprived, there will be an irreparable injury, and a corresponding failure of justice. (Sutherland on Damages, 1.)
    The breaking up of the business consisted: First. In the depreciation of stock from whatever cause at the time of the release from its value when seized. The rule in all wrongful takings or detentions is to allow the party from whom the goods are detained any deterioration in value. (Gordon v. Jenney,16 Mass., 465, 470.)
    Second. In the sacrifices of such stock made necessary by the adverse action of the Government. These were actual damages susceptible of i>roof and which have been demonstrated witli remarkable clearness, considering claimants' deprivation of their books and the length of time which has elapsed. '
    The interruption of their business was the deprivation of profits during the period the Government held their premises in custody. The extent of business done previously is competent evidence on the subject of lost profits. The New York court of appeals in Schile v. Brohhahus (80 N. Y., 620) say: “ If a business is entirely broken up, the amount previously done is ordinarily pertinent upon the question of the amount which might subsequently be done, and the same is true of a partial interruption of business.” (Citing Bagley v. Smith, 10 N. Y., 489 : Brown v. Otto, 40 Md., 15.) In all these cases loss of profits was allowed as an element of damage.
    ■ A fair compensation for the actual breaking uj) and destruction of their trade, caused by the illegal detention of their property. It is suggested that while not allowable perhaps as such, the interest on their losses would be a fair measure of such damages. Interest upon property lost or destroyed by the wrongful or negligent act of another is a proper item of damage. (Parrott v. Knickerbocker Ice Co., 46 N. Y., 361; Sedgwick on Damages, marg., 385, 386; Mairs v. Manhattan Real Metate Association, 89 N. Y., 498.)
    The court is not limited by the act to technical rules, but the intention was that it should award compensation for whatever loss occurred directly or indirectly from the wrongful acts complained of. Congress in passing the act determined that such compensation was proper, and left it to the court to fix the amount on just and equitable principles. The court takes the place of a jury in assessing the damages and may exercise the same wide discretion.
    
      Mr. Assistant Attorney-General Howard, and Mr.M. M. Watson, for the defendants:
    1. The Court of Claims is a court of limited, special jurisdiction. Any statute by which it is contended this jurisdiction is increased must be strictly construed. There must be an express grant or a grant by implication so strong as to amount to an express concession.' (Gary v. Curtis, 3d Howard, 236; Sedgwick, St. and Con. L., 312 et seq.; Tilden v. United States, 100 U. S. R., 43; Harvey v. United States, 105 U. S. R., 671; McClure v. United States, 116 U. S. R., 145; Robert’s Case, 6 G. Cls. R., 84.)
    In Harvey v. United States, supra, the special act conferred equity jurisdiction and authorized the court “ according to the rules and principles of equity jurisprudence to reform the contract,” and the Supreme Court held that full equity jurisdiction was conferred in the special case by the special, act, and that it must review the facts and the law as in other cases in equity.
    2. The only actions cognizable in the Court of Claims, as we have seen, are upon contracts, express or implied. The only judgment the Court of Claims can render against the Government is one for money found due to the claimants. (United States v. Alire, 6 Wall., 573; United States v. Anderson, 9 id., 56; Brown v. United States, 6 O. Cls. R., 171.) No demand under the general jurisdiction of the Court of Claims founded on a tort can be prosecuted in that court. (Spicer v. United 
      
      States, 1 O. Cls. B., 316; Dennis v. United States, 2 id., 210; Turner v. United States, 9 id., 367; Pittman v. United States, 20 id., 253; Gibbons v. United States, 8 Wall., 269; Perrin v. United States, 12 Wall., 315; United States v. Bostwicle, 94 U. S. B., 53.)
    There is no liability upon the part of the Government to answer for a tort. (See cases cited supra, and also Hart v. United States, 95 U. S. B., 316; Minium v. United States, 106 U. S. B., 437; Oooh v. United States, 91 U. S. B., 389.)
    There is a marked distinction between the acts of public and private agents and officers. (Pierce v. United States, 1 G. Cls. B., 370; The Floyd Acceptances, 7 Wall., 666; Johnson’s Case, 2 C. Cls. B.)
    This court has again and again held to the principle of common law, that the Government cannot be sued in actions sounding in tort, nor made liable for the tortious acts of its officers. (See also, Story on Agency, 307a, 319 etseq.; United States v. Kirlcpatrielc, 9 Wheat., 720; Dox v. Postmaster-General, 1 Pet., 318; Glodfelder v. The State, 86 N. O., 51; State v. Rayes, 52 Mo., 578; Hill v. United States, 9 How., 389; Gibbons v. United States, 8 Wall., 275.)
    3. If there had been, in derogation of the common law and of unbroken precedents, an intention to create a liability on the part of the Government for an alleged tort committed by Bailey and his subordinates, it would have been and must have been clearly expressed. By the act four things are established: First, the permission to sue is conferred; second, the obligation of the court to pass upon the law of the liability of the United States is imposed; third, the obligation of the court to pass upon the facts of the liability of the United States is imposed ; and, fourth, the bar of the limitation is mentioned and removed. (Frwin v. United States, 13 O. Cls. B., 49 ; S. 0., 97 U. S. B., 392; Hunter v. United States, 5 Pet., 187 ; Whiteside v. United States, 93 U. S. B., 257; Mayer v. Fshbaelc, 17 Md., 282, and cases cited supra.)
    4. The seizure was rightful under section 48 of the revenue act of June 30, 1864, as' amended by the act of July 13,1866. (See 14 Stat. L., Ill, 112.)
    This section has been construed by the courts. (See United States v. 36 Bis. of High Wines, 7 Blatchford, O. O. B., 459; Le-lienthal’s Tobacco v. United 8tates} 97 U. S. B., 237-263.)
   Pee cueiam :

The court does not regard the question of statutory construction in this case as free from doubt, but, nevertheless, is of the opinion that inasmuch as the claim which is referred to the court is, upon the face of the private act, one of which the court did not have jurisdiction (as was decided by the Supreme Court in Nicholls Case, 7 Wall., 122), the first purpose of the act was necessarily to confer jurisdiction. And the court is further of the opinion that the purpose of conferring jurisdiction must have been to enable the court to render substantial justice, if upon ordinary principles of law the parties seeking redress were entitled to it; and that the question of liability spoken of in the act is the legal liability which an ordinary body corporate, such as a railroad or municipal corporation, would be subject to for similar acts committed by their agents in similar circumstances, the provision concernió g the statute of li nutations pr ob-ably having been inserted in the act from excess of caution.

The court is also of the opinion that the claimants’ loss of business in the sale of alcohol on commission, not having been directly caused by the acts-of the revenue officers, comes under the rule of remote and consequential damages, and cannot be recovered; and that the outlay of the claimants for rent, wages, and insurance was an incident of their ordinary business, and not an expense caused by or for which the Government can be held liable.

Concerning the objection raised by the defendants’ counsel that the firm of Cumming & Co. was guilty of irregularities under the Treasury regulations which went into operation on the 29th August, 1867, in allowing a clerk or employé to be put forward as the nominal proprietor of the bonded warehouse, and in maintaining their own place of business in the same building, and in keeping a large quantity of free goods on the premises, tho court is of the opinion that as no actual fraud, concealment, or loss to the revenue is shown, and as these irregularities were much more fully known to the collector of the district and to the Commissioner of Internal Eevenue than to the court, and inasmuch as the Treasury Department having-knowledge of the facts had also exclusive jurisdiction of the subject-matter with power either to order a seizure or to waive an irregularity and remit a forfeiture, and having- exclusive jurisdiction determined through the Commissioner of Internal Be venue that no just cause- for the seizure of the claimants’ property existed, the court cannot now retry the issue properly within the jurisdiction of and actually determined by the revenue department, but must regard the decision of the Commissioner as final and conclusive.

The judgment of the court is that the claimants recover of the defendants the sum of $36,000.  