duties, upon the pretense that they had been paid under protest, and thus to secure in the hands of the officers a sufficient indemnity for all present as well as future liabilities to the persons who had paid them. By this means large sums of money were withheld from the government, and there was imminent danger that severe losses might thus be sustained from the defalcation of those officers, and the public revenue might be thus appropriated to the personal business or speculating concerns of the officers. If actions should be brought and judgment obtained against such officers for the repayment of any of such duties, it was plain that the government would be bound to indemnify them, especially if they had acted under instructions from the Treasury Department. On the other hand, the government, being in possession of the money, would hold it in the meantime as a deposit to await events, and to refund the same if in the due administration of the law it was adjudged that it ought to be refunded. Such, in my judgment, was the object and the sole object of the section, and it seems to me in this view to be founded in a wise protective policy.34

34 See Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct. 184, 27 L. Ed. 920 (1883): "The common-law right of action to recover back money illegally exacted by a collector of customs as duties upon imported merchandise rested upon the implied promise of the collector to refund money which he had received as the agent of the government, but which the law had not authorized him to exact, which had been unwillingly paid, and which, before payment to his principal, he had been notified he would be required to repay, and involved a corresponding right on his part to withhold from the government, as an indemnity, the fund in dispute. The manifest public inconveniences resulting from this situation induced Congress, by Act March 3, 1839, c. 82, 5 Stat. 348, § 2, to alter the relation between these officers and the United States by requiring them peremptorily to pay into the treasury all moneys received by them officially, without regard to claims for erroneous and illegal exactions. It was provided, however, therein, that the Secretary of the Treasury himself, on being satisfied that, in any case of duties paid under protest, more money had been paid to the collector than the law required, should refund the excess out of the treasury. The legal effect of this enactment, as was held in Cary v. Curtis, 3 How. 236, 11 L. Ed. 576, was to take from the claimant all right of action against the collector, by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26, 1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the Secretary of the Treasury the authority to refund conferred by the act of 1839. 5 Stat. 349, 727. This act of 1845 was in force, as was decided in Barney v. Watson, 92 U. S. 449, 23 L. Ed. 730, until repealed by implication by Act June 30, 1864, 13 Stat. 214. The fourteenth section of the act last mentioned is, as already cited, in substance the present section 2931 of the Revised Statutes, providing for the appeal to the Secretary of the Treasury, and the sixteenth section, being the present section 30122, Rev. St., restores to the Secretary of the Treasury the authority to refund moneys paid under protest and appeal, which he shall be satisfied were illegally exacted, originally conferred upon him by the act of 1839. And the provision of the act of 1845, which construed the act of 1839 so as to restore to the claimant the right of action, judicially declared in Cary v. Curtis, supra, to have been taken away by the latter, now appears as section 3011 of the Revised Statutes. It was in force when the present action was brought, and is as follows: 'Any person who shall have made payment under protest and in order to ob

TEAL v. FELTON.

(Supreme Court of United States, 1851. 12 How. 284, 13 L. Ed. 990.)

Mr. Justice WAYNE delivered the opinion of the court.35 This suit was brought in a justice's court to recover from the plaintiff in error the value of a newspaper, received by him as postmaster at Syracuse, which he refused to deliver to the defendant in error to whom it was addressed. The plaintiff in error had charged the newspaper with letter postage, on account of a letter or initial upon the wrapper of it, distinct from the direction. This the defendant refused to pay, at the same time tendering the lawful postage of a newspaper. The postmaster would not receive it, and retained the paper against the will of the defendant. Upon that demand and refusal the suit was brought. The action was trover and the general issue was pleaded. In the course of the trial, when the defendant in error, who was plaintiff in the suit below, was introducing testimony in support of his case, the defendant objected to a further examination of the case by witnesses, upon the ground that the court had not jurisdiction of the case. The objection having been overruled, the trial of the case was continued; and after the plaintiff had proved that he demanded from the defendant the newspaper, tendering the lawful postage, and that the postmaster refused to deliver it to him, he rested his case. *

From the evidence in this case, we do not think that the initial or letter upon the wrapper of the newspaper in this case, subjected it, either under the thirteenth or thirtieth section of the act of 1825, to letter postage. ***This was not a case in which judgment could be used to determine any fact, except by some other evidence than the letter itself. Nor was it one calling for discretion in the legal acceptation of that term in respect to officers who are called upon to discharge public duties. What was done by the postmaster was a mere act of his own, and ministerial, as that is understood to be, distinct from judicial. It could not have been the intention of Congress to put it in the power of postmasters, upon a mere suspicion raised by a single letter or initial, to arrest the transmission of newspapers from the presses issuing them, or when they were mailed by private hands.

tain possession of merchandise imported for him, to any collector or person acting as collector of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.'

As to further history, see De Lima v. Bidwell, 182 U. S. 1, 174-180, 21 Sup. Ct. 743, 45 L. Ed. 1041 (1896), post, p. 561, and Act June 10, 1890. 35 Only a portion of the opinion of Wayne, J., is printed.

This view of the law disposes also of that point in the argument, claiming for the postmaster an exemption from the suit of the plaintiff, upon the ground that he was called upon, in the act which he did, to exercise discretion and judgment. In Kendall v. Stokes, 3 How. 97, 98, 11 L. Ed. 506, will be found this court's exposition upon that subject, with the leading authorities in support of it. The difference between the two must at all times be determined by the law under which an officer is called upon to act, and by the character of the act. It is the law which gives the justification, and nothing less than the law can give irresponsibility to the officer, although he may be acting in good faith under the instructions of his superior of the department to which he belongs. Here the instructions exceed the law, and marks and signs of themselves, without some knowledge of their meaning, and the intention in the use of them, are, as we have said, neither memoranda nor writings. Tracy v. Swartwout, 10 Pet. 80, 9 L. Ed. 354.

But it is said that the courts of New York had not jurisdiction to try the case. The objection may be better answered by reference to the laws of the United States, in respect to the service to be rendered in the transmission of letters and newspapers by mail, and by the Constitution of the United States, than it can by any general reasoning upon the concurrent civil jurisdiction of the courts of the United States and the courts of the states, or concerning the exclusive jurisdiction given by the Constitution to the former.

The United States undertakes, at fixed rates of postage, to convey letters and newspapers for those to whom they are directed, and the postage may be prepaid by the sender, or be paid when either reach their destination, by the person to whom they are addressed. When tendered by the latter or by his agent, he has the right to the immediate possession of them, though he has not had before the actual possession. If then they be wrongfully withheld for a charge of unlawful postage, it is a conversion for which suit may be brought. His right to sue existing, he may sue in any court having civil jurisdiction of such a case, unless for some cause the suit brought is an exception to the general jurisdiction of the court.

Now the courts in New York having jurisdiction in trover, the case in hand can only be excepted from it by such a case as this having been made one of exclusive jurisdiction in the courts of the United States, by the Constitution of the United States. That such is not the case, we cannot express our view better than Mr. Justice Wright has done in his opinion in this case in the Court of Appeals. After citing the second section of the third article of the Constitution, he adds: "This is a mere grant of jurisdiction to the federal courts, and limits the extent of their power, but without words of exclusion or any attempt to oust the state courts of concurrent jurisdiction in any of the specified cases in which concurrent jurisdiction existed prior to the adoption of the Constitution. The

apparent object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary." 36 We will add that the legislation of Congress, immediately after the Constitution was carried into operation, confirms the conclusion of the learned judge. We find, in the twenty-fifth section of the judiciary act of 1789, under which this case is before us, that such a concurrent jurisdiction in the courts of the states and of the United States was contemplated, for its first provision is for a review of cases adjudicated in the former, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity."

We are satisfied that there was no error in the decision of the Court of Appeals in this case, and the same is affirmed by this court.

36 See Teall v. Felton, 1 N. Y. 537, 546, 49 Am. Dec. 352 (1848): "But the counsel for the plaintiff in error contends that this is a case which the state courts did not hold cognizance of at the adoption of the federal Constitution, for the reason that the Post-Office Department not only never in any manner or at any time pertained to the state or colony, but is entirely the creation of the national statute: that it owes its existence exclusively to the Constitution and national legislature; and hence that the federal judiciary has exclusive jurisdiction in all matters growing out of or pertaining to it. That the post office is a federal institution no one will deny; but it is difficult to perceive how the premises of the counsel sustain the conclusion at which he arrives. The same reason would apply with equal force in case of a suit being brought against a collector of the customs. The present action is one coeval with the common law, to enforce a right to property, alleged to have been wrongfully converted by the defendant. This remedy for a tortious conversion has always been complete in the state courts. It does not follow that, because the defendant may have been acting under a law of Congress in withholding the newspaper, and consequently may defend himself against the alleged conversion, that jurisdiction of the subject-matter is exclusively given or acquired by the federal courts under such law. The plaintiff is not seeking redress under the post-office laws, or attempting to enforce a penalty specifically imposed by them on the postmaster for a fraudulent act pertaining to his official duty. She simply seeks to recover in an appropriate common-law tribunal, competent to afford a remedy, and in a form of action more ancient than the federal Constitution or laws, the value of her property. If the defendant can maintain that by the post-office laws, or any constitutional act of the national legislature, there was no legal conversion, his defense will be complete. But it is an incorrect conclusion that because a law of Congress prescribes the duties of an officer of the federal government, and in a proper case he may thereunder defend his acts, for such reason the state courts are ousted of jurisdiction. Upon the whole. I have no doubt that the justice had jurisdiction in the present case; and, whilst asserting this jurisdiction, I would not be understood as inclined to throw the least obstacle in the way of a successful operation of the general government, or to encourage the exercise of state power having that tendency."

SECTION 36.-SAME-LIABILITY ON OFFICIAL BOND

UNITED STATES v. GRISWOLD et al.

(Supreme Court of Arizona, 1904. 8 Ariz. 543, 76 Pac. 596.)

Action by the United States of America against Albert J. Griswold and others. From an order sustaining a demurrer to the complaints, plaintiff appeals. Reversed.

SLOAN, J. The United States brought suit in the court below against Albert J. Griswold, postmaster at Nogales, Ariz., and L. W. Mix, Edward Titcomb, Theo. Gebler, and Fred. Herrera, sureties upon the official bond of said Griswold as postmaster aforesaid, to recover the sum of $1,863, alleged to have been lost from the mails after the same had been registered and deposited in the post office at Nogales by P. Sandoval & Co. It was alleged in the complaint that the registered package containing this money was stolen from the post office by reason of the negligence of the postmaster. The defendants in the action demurred to the complaint upon the ground that the facts therein stated did not constitute a cause of action in favor of plaintiff and against the defendants. The demurrer. was sustained by the trial court, and from this order and ruling of the court the United States has appealed.

The first question presented is: Does the loss of the registered package, occasioned by the negligence of the postmaster, amount to a breach of the bond given by such postmaster, under section 3834, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2610)? This section pro vides that "every postmaster, before entering upon the duties of his office, shall give bond, with good and approved security, and in such penalty as the Postmaster General shall deem sufficient, conditioned for the faithful discharge of all duties and trusts imposed on him either by law or the rules and regulations of the department." The bond in this instance, given by Griswold, contained the condition required by said section, being in all respects as required by law and the rules and regulations of the Post-Office Department having the effect of law. Section 3926, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2685), authorizes the Postmaster General to establish a uniform. system of registration conditioned that the Post-Office Department, or its revenue, should not be liable for the loss of any mail matter on account of its having been registered. It is a part of the duty of the postmaster to safely keep and to transmit the mails, including registered packages, which may be given into his hands as such postHis oath of office requires him to faithfully perform the duties of his office.