Crary v. United States

44 Ct. Cl. 388, 1909 U.S. Ct. Cl. LEXIS 130, 1908 WL 752

Opinion

Per Curiam:

Before purchasing the sheep, for the slaughter of which this claim is made, the claimants and their agent appear to have exercised due care and caution in examining them; and finding the sheep free from scabies, to which the owner also certified, they purchased the sheep and paid therefor a reasonable price.

The transaction bears the marks of good faith on the part of the claimants; and while the sheep were permitted by the customs officer at El Paso to be imported into the United States without first being inspected in Mexico, the Government, through its collector of customs at that port, thereafter inspected and counted the sheep and collected thereon the import duty.

The liability of the Government, however, does not rest on the unauthorized act of the customs officer in permitting the sheep to be brought into the United States before inspection in Mexico (though that was in a measure cured by the inspection and certificate of the Mexican veterinary inspector immediately after the sheep were unloaded in the stock yards at El Paso), but on the action of the Secretary of Agriculture in ordering, as he had the right to do under the law, the slaughter of the sheep so diseased and infected to prevent further spread of the disease. (Act of Aug. 30, 1890, sec. 8, 26 Stat. L., 414, 416.)

Under said section of the act the Secretary of Agriculture was not only authorized to cause the sheep to be slaughtered as he did, but the act made it his duty to ascertain the value of sheep so exposed but not infected, either by agreement between himself and the owners, if practicable, or by two persons familiar with the character and value of sheep, to be appointed by the Secretary, whose decision, if they agree, the act provides “ shall be final, * * * and the amount of the value thus ascertained shall be paid to the owner thereof out of money in the Treasury appropriated for the use of the Bureau of Animal Industry.”

The latter course, i. e., to ascertain the value, was pursued, and the sheep so exposed, but not infected, were appraised at $1 per head, and that, plus the duty, $836, amounting in all to $3,919, measures the liability of the Government for which judgment is ordered.