
115 U.S. 163 (1885)
LAMAR, Executor,
v.
McCULLOCH.
Supreme Court of United States.
Argued October 15, 16, 1885.
Decided October 26, 1885.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
*175 Mr. George Ticknor Curtis [Mr. Edward N. Dickerson was with him on the brief] for plaintiff in error.
Mr. Attorney-General for defendant in error.
*180 MR. JUSTICE BLATCHFORD delivered the opinion of the Court. After stating the facts in the language above reported, he continued:
*181 The foregoing written documents show the connection of the defendant with the case. Mr. Cabell's application or petition of November 16, 1865, claimed compensation for having collected or secured cotton, cedar timber, and cattle. It enumerated the property. The defendant, in his letter of November 17, 1865, to Mr. Cabell, refers to it all as "captured property," but says that as none of it had been actually placed in the possession of any agent of the Treasury Department, or removed from the places where it had been discovered, he desires that Mr. Cabell will return South and do all in his power "to secure to the government the cotton named" by him, and "to transport the same to a proper place of shipment." Only cotton was to be secured; and it is a fair interpretation of the letter, that the cotton was to be secured as having been "captured property," and that it was referred to by the defendant as part of the "captured property" enumerated by Mr. Cabell. Mr. Cabell, in his letter to the defendant of December 11, 1865, speaks of the 170 bales he had already shipped as cotton "formerly owned by the Exporting and Importing Company." The defendant, in his letter to Mr. Cabell of December 29, 1865, says that his letter of November 17, 1865, was intended to empower Mr. Cabell to take into his possession "any cotton belonging to government not in the custody of any other officer of the department, and which might not otherwise be secured by them;" that a perusal of that letter will show that it was not intended to do more than secure his services in connection with the lots of property which had been specified by him; and that "no indiscriminate seizures and collections were contemplated by it." Mr. Cabell's letter to the defendant of February 17, 1866, says that the 272 bales he had shipped from Jacksonville to New York on January 25, 1866, were "owned by the Exporting and Importing Company of Georgia (President, G.B. Lamar), a company engaged in the sole business of blockade running, and holding said property for the purpose of aiding and abetting the rebellion." In his petition of February 27, 1866, to the defendant, Mr. Cabell states that he had been appointed by Mr. Alexander, in July, 1865, to "collect and receive all the cotton, tobacco, and *182 other property belonging to the United States," and speaks of the 268 bales as "government cotton," and speaks of Mr. Alexander as agent of the Treasury Department, "under the regulations of said department for the collection of captured and abandoned property in the disloyal States." In his letter of May 25, 1867, to Mr. Sargent, the defendant speaks of the 272 and 268 bales as being "held by government as captured or abandoned property," and directs the $4,881.10 to be paid out of the "proceeds of captured and abandoned property."
By § 1 of the act of March 12, 1863, ch. 120, 12 Stat. 820, the Secretary of the Treasury was authorized to appoint special agents "to receive and collect all abandoned or captured property" (with specified exceptions), in any State designated as in insurrection by the proclamation of the President of July 1, 1862, 12 Stat. 1266. Florida was such a State. By § 2, the property collected, if not appropriated to public use, was to be forwarded to a place of sale in the loyal States, and sold at auction, and the proceeds paid into the Treasury of the United States. By § 3, the Secretary of the Treasury was to cause "books of account to be kept, showing from whom such property was received, the cost of transportation, and proceeds of the sale thereof." Section 3 further provided as follows: "And any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims; and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given any aid or comfort to the present rebellion, to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof."
By § 3 of the act of July 27, 1868, ch. 276, 15 Stat. 243, it was declared to have been the true intent and meaning of the act of March 12, 1863, "that the remedy given in cases of seizure made under said act, by preferring claim in the Court of Claims, should be exclusive, precluding the owner of any *183 property taken by agents of the Treasury Department as abandoned or captured property, in virtue or under color of said act, from suit at common law, or any other mode of redress whatever, before any court or tribunal other than said Court of Claims; and in all cases in which suits of trespass, replevin, detinue, or any other form of action may have been brought and are now pending, or shall hereafter be brought, against any person, for or on account of private property taken by such person as an officer or agent of the United States, in virtue or under color of the act aforesaid," "the defendant may and shall plead or allege, in bar thereof, that such act was done or omitted to be done by him as an officer or agent of the United States, in the administration of one of the acts of Congress aforesaid, or in virtue or under color thereof, and such plea or allegation, if the fact be sustained by the proof, shall be, and shall be deemed and adjudged in law to be, a complete and conclusive bar to any such suit or action." This statute was in force when this suit was brought, and when the issues in it were joined, and the provision as to the jurisdiction of, and exclusive remedy in, the Court of Claims, is re-enacted, in substance, in § 1059 of the Revised Statutes, which gives jurisdiction to the Court of Claims to hear and determine all claims for the proceeds of captured or abandoned property, as provided by the act of March 12, 1863, or by the act of July 2, 1864, ch. 225, 13 Stat. 375, and then adds: "Provided, That the remedy given in cases of seizure under the said acts, by preferring claim in the Court of Claims, shall be exclusive, precluding the owner of any property taken by agents of the Treasury Department as abandoned or captured property, in virtue or under color of said acts, from suit at common law, or any other mode of redress whatever, before any court other than said Court of Claims."
The occasion for the enactment of the provisions of § 3 of the act of July 27, 1868, appears to have been this: One Elgee brought a suit in a State court in Missouri, against one Lovell, to recover the possession of some bales of cotton. Lovell removed the case into the Circuit Court of the United States for the Districts of Missouri, on the ground that he was in possession *184 of the cotton as agent for the government of the United States, which claimed it as abandoned property, under the act of March 12, 1863. Elgee having died, the suit was continued in the name of his administrator. It was decided by the Circuit. Court, held by Mr. Justice Miller and District Judges Treat and Krekel, in October, 1865, and is reported in 1 Woolworth, 103, as Elgee's Administrator v. Lovell. The opinions of the court, for there were two, were given by Mr. Justice Miller. To the ordinary declaration in detinue the defendant pleaded that the cotton had, before the suit was brought, and in March, 1864, been taken, received and collected, in the State of Mississippi, as abandoned property, into the possession of one Hart, a special agent, appointed by the Secretary of the Treasury to receive and collect abandoned or captured property, under the act of March 12, 1863, Mississippi having been designated as in insurrection, by the proclamation of July 1, 1863; that the cotton was in possession of the defendant, at St. Louis, as agent of the United States, in its transit to a place of sale, and he was holding it for and on behalf of the United States, and not otherwise; and that the cotton was claimed by the United States as abandoned property, under said act. The plaintiff demurred to this plea, and the demurrer was overruled. The Circuit Court said, in regard to the plea: "It shows that the cotton mentioned in the declaration was seized as abandoned property, in one of the districts declared by the proclamation to be in a state of insurrection, by a special agent of the Treasury Department for that district; and that, when this suit was brought, it was held by the defendant as an agent of the government, with the view of disposing of it under the act. The objection taken to it is, that it does not aver that the property, when taken possession of by the Treasury agent, was captured or abandoned property, nor in any other manner show that it was rightfully seized... . The question is, whether Congress intended to make the remedy given by this act exclusive of all others, or to permit the Treasury agents to be sued for the possession or proceeds of such property wherever the party aggrieved might find a court of general jurisdiction... . The act evidently contemplates, that, in some instances, at *185 least, property will be seized which ought to be returned to its owner, or for which compensation should be made by paying him the proceeds. Otherwise it were unnecessary to provide any means of determining when a return should be made. And the remedy applies to property taken by mistake, or by the unjustifiable act of the agent, equally as to property which has been abandoned or captured... . I am of opinion that Congress intended to prescribe to all claimants who should prove their loyalty and their right to the property, this remedy for all cases of seizure by agents under this law, whether made in strict accordance with its provisions or not." Upon this decision, the plaintiff filed a replication to the plea, which averred that the cotton, before it came into the possession of Hart, was the property of Elgee; that, by the proclamation of the President, of December 8, 1863, 13 Stat. 737, there was promised a full pardon and amnesty, with restoration of all their rights of property, except as to slaves, to all those living in the insurrectionary districts, except certain classes of persons therein mentioned, who should thereafter take, subscribe and keep inviolate a certain oath therein prescribed; that, before the suit was brought, Elgee, then living in said insurrectionary districts, not being one of the excepted persons, took and subscribed the oath required and had kept it inviolate; and that his rights of property in the cotton were thereby restored to him. The defendant demurred to this replication. The demurrer was sustained by the Circuit Court, which held, in its decision, that, as the act of March 12, 1863, contemplated that the property of loyal citizens might and would be taken under it, and as the only remedy of a loyal citizen of a loyal State in respect to property owned by him, seized by a Treasury agent, in an insurrectionary district, as abandoned property, was by an application to the Court of Claims, pardon and amnesty could not place the disloyal citizen in any better position than that occupied by the loyal citizen.
There was a final judgment against the plaintiff, and the case was brought into this court by a writ of error sued out by Elgee's administrator, and was No. 63 on the docket of *186 December Term, 1867. Briefs for both parties were filed, and the case was argued orally. The court was equally divided in opinion, eight judges sitting, and the judgment was consequently affirmed, on the 27th of January, 1868. Subsequently, the bill which became a law on the 27th of July, 1868, was introduced into the House of Representatives, and passed by it and by the Senate, and was approved by the President. It is proper to assume, from this history and the contents of the act, that it was introduced and passed because of the difficulties which had attended the decision of this court in the Elgee case.
It is manifest, we think, that § 3 of the act of July 27, 1868, was intended to cover, and does cover, a case like the present. The act, in terms, includes a suit for what is in fact private property, taken by an agent of the United States as being abandoned or captured property, in the administration of the act of March 12, 1863, or in virtue thereof, or under color thereof. Whatever doubt there may have been before the act of July 27, 1868, was passed, on facts such as those in Elgee's case, there can be none as to this case, on its facts, under the language of that act. Even though the property taken was private property, if it was taken by an officer or agent of the United States, under a claim that it was abandoned or captured property, in the administration of the act of March 12, 1863, or in virtue thereof, or under color thereof, the jurisdiction of every court but the Court of Claims, in respect to every mode of redress, is taken away, when it is pleaded or alleged in defence that the property was taken by the defendant, as such officer or agent, in the administration of the act, or in virtue or under color thereof, and that fact is sustained by the proof. The fact to be sustained by the proof is, not that the property was in fact abandoned or captured property, but that it was in fact taken as being such, on a claim to that effect, in the administration of the act, or in virtue of it, or under color of it. Of course, there must be good faith, or there can be no color. The claim must not be made in bad faith. In McLeod v. Callicot, Chase's Decisions, 443, Chief Justice Chase, in speaking of § 3 of the act of July 27, 1868, says, that, if a *187 person proceeds in good faith, believing himself to be warranted, as an officer of the government, in taking charge of property under the act, he is covered by its provisions; and that, in such case, although the acts he does as such officer are done under a mistake as to the character of the property, he is protected by the act against a private suit. This we believe to be the proper interpretation of the statute. In Lammon v. Feusier, 111 U.S. 17, where a marshal, having an attachment against the property of one person, levied it on the property of a stranger, it was held by this court that the sureties on the official bond of the marshal were liable to the stranger, because the marshal had acted colore officii, although he had acted without sufficient warrant.
This suit is not against Mr. Cabell. No accusation of bad faith against Mr. Cabell can affect the defendant, except so far as the acts of Mr. Cabell were authorized in advance by the defendant, or sanctioned or approved or ratified by him with full knowledge. Starting out with the fact that it cannot be held that in the beginning the defendant gave any authority to Mr. Cabell except in regard to "captured property," we find that he impressed upon Mr. Cabell the fact that he was authorized only to take cotton belonging to the government, and nothing beyond the specific cotton which Mr. Cabell had named; that the proceedings Mr. Cabell was authorized to take in regard to such cotton were proceedings under the act of March 12, 1863, to collect it and ship it, so that it might be sold; and that the representations made in regard to all of the cotton, by Mr. Cabell to the defendant, after it was shipped to New York, were such as to indicate that it was "government cotton," and to warrant the defendant in fairly regarding it as cotton which had been "captured," within the act; and we think the defendant had the right to treat it as cotton to be sold under the act, and to see that its proceeds were paid into the Treasury to await adjudication by the Court of Claims, and was not called upon to take upon himself the responsibility of restoring the cotton or its proceeds to Mr. Lamar, under any representations which are shown to have been made to him by Mr. Lamar in regard to the ownership of the cotton, or in *188 regard to its status as not being captured or abandoned property, or in regard to the status of Mr. Lamar as having taken an amnesty oath on January 6, 1865, under the proclamation of December 8, 1863, 13 Stat. 737. Nor do we think these conclusions are affected by the contents of the written opinion given by Mr. Eames, in December, 1866.
As to the general instructions issued to officers of the Treasury Department, by the Secretary of the Treasury, on the 27th of June, 1865, we are of opinion that, notwithstanding those instructions, the Secretary of the Treasury had the right to give to Mr. Cabell the special authority which he gave to him.
Under these views, the instruction to the jury to find a verdict for the defendant, on the ground stated in the instruction, was correct.
Judgment affirmed.
