Tucker v. Nebeker ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

1. With reference to the defendant Nebeker, we fail to find in the agreed statement of facts any evidence whatever of tortious action. As Treasurer of the United States, duly appointed and qualified, he received from his predecessor in office the funds contained in the Treasury of the United States, therein including the fund in controversy in this suit. If this fund had been improperly placed in the Treasury, or improperly received by the predecessor of Mr. Nebeker, the wrong was not his wrong; nor is it charged that he had any knowledge whatever of it. He received from his predecessor the contents of the treasury as the money of the United States, and that money he was allowed by law to disburse only “upon warrants drawn by the Secretary of the Treasury, countersigned by either Comptroller, and recorded by the Register, and not otherwise U. S. Rev. Stat., Sec. 305. Failure to perform his duty in this regard would have been a criminal offense under Section 5489 of the Revised Statutes. To permit him, upon the demand made upon him by the plaintiff, to determine that this fund had been improperly or improvidently deposited in the Treasury, and thereupon to withdraw it and deliver it to the plaintiff, would be to invest him with a most dangerous power, to say the least of it, and to subject him to criminal prosecution under the statute. We cannot regard as a tort that which the law requires as a public duty.

But we may go farther. We cannot regard as a tort the act of Mr. Huston, the predecessor of Mr. Nebeker, in receiving the money in question from the District of Columbia for the purpose for which it was delivered to him as Treasurer of the United States. He was required by law to keep and disburse, in accordance with law, all moneys delivered to him for the uses and purposes for which this fund was delivered. He knew nothing of the source from which the fund was ¡derived; and it was not his duty to inquire. It was his duty to receive the money when delivered to him; and no more in this case than in the other can we regard that as a tort which the law requires to be performed as a duty.

2. In the second place, the agreed statement of facts fails to disclose any evidence of tort on the part of the defendant Sylvester. This defendant was an agent and employee of the District of Columbia, as was the coroner from whom he received the money in controversy. He was the officer of the District charged with the custody and care of “ all properly or money alleged or supposed to have been feloniously obtained, or which shall be lost or abandoned, and which thereafter shall be taken into the custody of any member of the police force, or the police or criminal court of the District” (Rev. Stat. of U. S. for D. C., Sec. 409); and he received this money from the coroner in pursuance of a general order of the Commissioners of the District of Columbia, issued in 1879, as stated in the agreed statement of facts. It is unnecessary to determine whether this order was a sufficient warrant for him to receive this money, for the possession of the coroner was the possession of the District of Columbia; and the transfer by one agent of the District to another did not change the legal character of the possession, or convert the second agent into a wrongdoer. Moreover, we cannot assume that there was any tort at all, so long as the persons dealing with this money confined themselves to the duty of its conservation and preservation, and did not undertake to dispose of it or place it beyond the reach of any proper owner that might appear to claim it. Blackstone says: “ If a stranger takes upon him to act as executor without any just authority, as by intermeddling with the goods of the deceased and many other transactions, he is called in law an executor of his own wrong, and is liable to all the trouble of an executorship, without any of the profits or advantages; but merely doing acts of necessity or humanity, as locking up the goods or burying the corpse of the deceased, will not amount to such intermeddling as will charge a man as executor of his own wrong.” 2 Com., 507. Sylvester’s act professedly and actually was merely an act of necessity, and a praiseworthy attempt to preserve the money for the real owner; and hence he is not liable to be charged in such ca .suit as the present.

3. It is somewhat different, however,( with the District of Columbia. While the Commissioners of the District, acting in their official capacity for and on behalf of the District, did no more than take charge of this money by their agents and employees and retain it to await claim for it by a lawful owner, their action could scarcely be considered a tortious intermeddling. But when they converted it to the use of the District, by causing it to be placed without warrant of law to the credit of a fund intended solely for the benefit of the District, and actually consumed it for the purpose for which that fund was intended, they incurred the risk of liability to any executor, administrator, or other lawful owner who should thereafter appear to claim it. That they had no warrant of law for their action, is apparent from the reading of the statute under which they pretended to act; for plainly it does not include money coming into the hands of the Commissioners or their agents in the manner in which this money came. The argument on their behalf indeed concedes this much; and only seeks to justify their course on the ground that the circumstances of this case were so very analogous to those in which they are authorized by the statute to pursue that course, that it was the best thing they could do. But, of course, no such argument as this can be allowed to prevail against the rights of the lawful owner, of the money.

The act of the Commissioners in this matter bound the District of Columbia. They acted under color of their office; and the District had the benefit of the money. It is not an invariable rule that trespassers render only themselves liable for their wrong. Principals are responsible for the torts of their agents and employees committed within the scope of their duties; and especially are they liable when they have received the pecuniary advantages resulting from the trespass, when the trespass is only technical and the substantial injury is the conversion of the money of which the injured person has been deprived. Cooley on Torts, 127; Dillon on Municipal Corporations, Sec. 972; Thayer v. Boston, 19 Pick., 511; Stockwell v. United States, 13 Wall., 531; R. R. Co. v. Derby, 14 How., 468.

The statute of limitations was pleaded in this case, but was not pressed in the argument before this court. The plea is plainly untenable, inasmuch as when the trespass was committed, there was no person in existence competent to sue, and there has been no sufficient lapse of time for the bar of the statute to accrue between the date of the appointment of the administrator and the time of the institution of the suit. Wood on Limitations, Sec. 117, and cases cited in note.

The proceedings of the orphans’ court in the matter of the appointment of the administrator are made part of the record in this case; and the agreed statement of facts purports to annex thereto a copy of them. No such abstract is found annexed to the printed record presented to this court; and we are unable to form any opinion in regard to the suggestion made in argument of the fraudulent character of the claim upon which the administration is based. The propriety of the grant of letters of administration could scarcely be considered in this case in any event. That is a question to be determined by the orphans’ court which granted the letters, and is not subject to review in a collateral proceeding. Undoubtedly in the accounting by the administrator that court will carefully scrutinize the claim of a creditor who delayed so unconscionably long a time his petition for administration, and will scrupulously guard the interests of the United States, into the treasury of which it would seem that, under the statute of Maryland of 1798, Chap. 101, Subch. 11, Sec. 15, the residuum of this fund should go in default of relatives to take it. But we cannot here question either the propriety of the granting of letters of administration, or the validity of the claim of the creditor upon whose petition the administration was granted. Kane v. Paul, 14 Pet., 33.

It follows from what we have stated, that the judgment of the court below as to the defendants Nebeker and Sylvester should be affirmed, with costs ; and that the judgment as to the District of Columbia should be reversed, with costs; and that the cause should be remanded to the court below, with directions to enter a judgment upon the agreed statement of facts against the District of Columbia for the sum of $656.10, with interest thereon at the rate of six per centum per annum from the pth day of March, A. D. 1886. And it is so ordered.