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NEw-YORK,
May 1803.

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imposed under the act of Congress. It is admitted on the
part of the plaintiff that the theatre cannot be confidered as

Henderfon &al, a dwelling-houfe in the contemplation of the law, and of course

v. W. Brown.

Hard. 48o.
Buller. 82.

4 Term. Rep. 3.4. 5 do. 46

not taxable as fuch. But it is contended that the collector is
justified by his warrant notwithstanding this, fo that the plain-
tiff has no remedy against the officer.
Officers, acting under process from fuperior authority,
ought in all cafes to be justified by their process, where that
can be done, confistent with the established principles of law,
and the rights of parties. That the rule is not universal as it
respects ministerial officers, I think well settled. The dis-
tinction that is laid down in 19th Coke's Rep. 76 is, that
where the subject matter of the fuit is within the jurisdiction
of the court, but the want of jurisdiction is as to the person or
place, unless the want of jurisdiction appears on the process to
the officer who executes it, he is not a trefpaffer; but where
the fubject matter is not within the jurisdiction of the court,
there every thing done is absolutely void, and the officer a

trespañer. If the present cafe be tested by this rule the col

lector must be confidered as a wrong doer. The theatre was
not taxable as a dwelling-house, all proceedings then to im-
pose the tax or collect it must have been without authority
and wholly void, being a fubject not within the jurisdiction of
the affeffors. Unless the plaintiff has his remedy against the
collector or the affeffors he is without redress in a court of
justice, and we are driven to fay here is an injury without a
remedy. Admitting the affeffors were liable, still this will
not, upon the principles decided in the above cafe, excuse the
collector; all are trefpaffers. The distinction above taken
with respect to ministerial officers justifying under process
appears to me analogous to the present case, and has been re-
peatedly recognized in the English courts, in actions of tres-
pass against their commiffioners and collectors of taxes. In
the cafe from Hen. Black. Rep. pa. 72, the action was brought
against the collector and commiffioners jointly; and in the
two cases cited from term reports, the action was against the
collector only. No question was here raised with respect to
the officer's being justified by his warrant, the fole enquiry

was whether the property for the tax of which distress had

been made, was taxable; conceding that unless it was, all the
proceedings were void and the officer a trefpafler, and not

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being confidered taxable in the opinion of the court, judgment was given against the collector. So in the present cafe,

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• \-v-/ the theatre, not being taxable as a dwelling-house, the fubject Henderton &al.

matter was not within the authority of the affeffors, and the imposing the tax was illegal and void and could not afford ground of justification to the collector.

I am therefore of opinion judgment ought to be for the plaintiff.

Livington J. Upon no principle ought the defendant to beliable. It is made his duty on receipt of the list, to collettle tax, if not paid by a limited time. It was not for a fübordinate officer who was concluded by the judgment of the affeffors, to question the propriety of a theatre's being clafed as a dwelling-house. Having acted under a competent authority and paid the money over, why should he refund the plaintiff'lo's out of his own pocket, and be left to the liberality of government for his indemnity ? If a wrong has been committed and they are disposed to correct it and do justice, it is as probable they will act on the petition of the party aggrieved by the affeffment, as on that of the collector: while a collettor by being thus exposed might be ruined by a denial to reimburse him, no other individual can be very extensively injured by alike refusal. In this case the affeffors had jurić. diction over the fubject, and their mistake in confidering a theatre as a dwelling-house, must be regarded as an error in judgment, for which a collector ought not to be thus haraffed. They might fuppose, that as a theatre yielded a confiderable rent, it was reasonable it should be fubject to as large a tax as a dwelling-house. In the cafes cited from I H. Black. 68 and 8T. Rep. 468, the proceedings were coram non judice. The only questions there related to the exemption of certain property altogether by the terms of the feveral acts of parament. The officer's liability to refund was not made a Point in the argument, but appears to have been fubmitted füb filentio; at any rate these are recent cafes and not obli#tory here. It is better therefore to fanction a rule fug#ited by the common fense and feelings of men, and which affords protection to every ministerial officer acting under perhis clothed with proper authority, than to adopt the fubtlety and refinement of certain modern decifions, which are calcuhit to deter inferior officers from a faithful and prompt dif

O

V.
W. Brown.

*''', charge of their functions, or to expose them to much vexaC: tion and expence. Henderson &al. It is also much in favour of the collector that the plaintiffs w. Brown neglected to appeal. This being a remedy provided by the - act, they ought not lightly to be permitted to elect another. Radcliff J. This is an action of trespass for taking and carrying away the goods of the plaintiffs. The plea is the general iflue, and by consent the defendant was permitted to give any special matter in evidence. On the trial it appeared that the plaintiffs were owners of the new theatre in the city of New-York, that the same was 9th July, 1798, affeffed and valued as a dwelling-house under the act of Congress to provide for the valuation of lands and dwelling-houses and the enumeration of slaves within the United States, and was taxed as such in pursuance of the act to lay and collect a 14th July, 798. direct tax within the United States. The defendant was a collector, and for non-payment distrained, in a regular manner, for the tax, and justifies that he had a right fo to do. As a theatre merely, it was conceded not to be a dwellinghouse within the intent of these acts of Congress, and it does not appear that it was ever occupied as such. The affeffors therefore had no authority to affess it as a dwelling-house, and fubject it to the tax on houses of that defcription; nor could the collector derive from their affeffment or from any warrant which he may have poffeffed, an authority to demand a tax which no one had a right to impose. The power of the affeffors was special and limited, and ought to have been strictly pursued within the bounds prescribed by law, and it was incumbent on the collector to fee that he acted within the scope of their authority and his own, and by exceeding it he became in the eye of the law a trespañer. In England the fame rule prevails in regard to their officers

1 H. Bl. 68. of the revenue, and particularly in the analogous case of their

2 T. Rep.2, 4 land tax. The cafes in the English books are uniform and :& # decifive on this point and in none of them was there a doubt cited. entertained whether the officer collecting the tax was liable. : £" Their acts on the fubject of the land tax are numerous, and £o bestow on commifioners, affeffors and collectors powers in 1 H. Bl. 68 equally extensive with those conferred on the officers ap

pointed under the act of Congress. They have also an ap

peal from the affeffors to the commifioners,fimilar to thatfrom

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our affeffors to the principal affeffor; and in the case of New-York, Harrion v. Bullock and others, reported in H. Blackstone, that * * # appeal was made and difmifled, and the collector was still Henderfon &al.

t held equally liable. Indeed I know of no cases more parallel V. • - - - - - - - W. Brown. in their circumstances and more intimately connected in prin1: ciple. Cited as before. The decifions on this subject are founded on the general th rule of the common law, that special powers are to be strictly observed, and that all ministerial officers concerned in the exe& cution of them are bound to fee that they are clothed with

'' proper authority. If there be any hardship in the case it has been experienced for ages in England, and it belongs to gov

£ ernment to indemnify its officers when acting with good faith. in: Individuals ought not to suffer, and they can have no other it: judicial remedy than the one now fought. I think it no an

fwer to this reasoning to say that the affeffors had power to affes this theatre as land, (which would subject it to a differd: ent tax) and that therefore they had authority over the fubject matter. Inferior officers are liable for an exceffive exercife of power as well as a total want of it. If they step out of # the limits affigned to them they are equally trefpasters. This - is titled even in the case of magistrates' executing a judicial

#.
| trust: although they have jurisdiction over the procefs as well

. as the perfon and taufe, they are liable if they exceed their au

* thority. The extent of this doctrine is not only fupported

d by the principles of the common law, and a current of English Oćtob

: decifions, but was adopted by this court in the cafe of Perci- £ er term

# Valagainst Jones, in which we gave judgment against a magis

: trate for exceeding his powers.

: Whether by the just construction of the act of Congress it

J admitted of an appeal on the point in question to the principal altior, I thinkimmaterial. The omiffion to make that ap

Pal, or if made the decifion of the principal affeffor against it would not alter the case or conclude the appellant. Such decifions would still depend on the discretion of a ministerial #. offer only, and unless fuch discretion is declared to be defini. tive, or the nature of the subject requires it to be fo confider*: * I deem it a maxim from which we ought not to depart, that no one shall be finally concluded in his rights, with*utan opportunity to be heard in a court of justice and the # , "gular decifion of a competent tribunal.

As to the question which concerns the jurisdiction of this

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NEw-York, court in civil cases, where the validity of an authority exer*Y*23, cised under an act of the U. States is drawn in controversy, Henderfon &al. I think it cannot originally be doubted. This is fimply an w. Brown. action of trefpass and the pleadings are in the usual form. The question under the act of Congress arises incidentally upon the evidence on the part of the defendant, and Congress, by their act establishing the judicial courts of the U. States, have expressly recognized the jurisdiction of the state courts, and provided a remedy by writ of error returnable in the Supreme Court of the U. States, in case the decifions of the i ftate courts should contravene their laws. I am therefore of opinion that we poffers jurisdiction, that there was no authority under the act of Congress to impose or collect this tax, and that this action is maintainable against any officer who enforced it. Kent J. This was an action of trefpa/k quare claufum for entering the new theatre at N. York and taking away 325 dollars. The facts are, that the defendant was collećtor of the direct continental tax, and the theatre was taxed as the dwelling-house of John Hodgkinson, for the above fum, and the defendant entered and distrained for that fum, by virtue of a warrant in which the locus in quo was designated as the dwelling-house of J. H. aforefaid, although it is admitted that it was not in fact his dwelling-house. The question fubmitted is, whether the plaintiffs are entitled to recover upon these facts. Laws of U.S. The act of Congress of 9th of July 1798 provided for the vol. 4, 168. valuation of lands, dwelling-houses, and flaves, by affeffors, to . Pa. 176. be appointed by commiffioners. “Every dwelling-house above the value of one hundred dollars, and the lot on which it was erected, not exceeding two acres, was to be valued at the rate fuch dwelling-house was worth in money, with a due regard to fituation. All lands and town lots, except lots on which dwelling-houses were erected as aforefaid, were to be valued by the quantity at the average rate which each lot was worth in money, in a due relation to other lands and lots, and with reference to all advantages of foil and fituation and to all buildings and other improvements of whatever kind, except dwelling-houses aforefaid.” In making the affeffinents the affeffors were to require from the owners or poffeffors of dwelling-houses, lands, or flaves, feparate lifts of each, and

Pa. 178.

Pa. 179.

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