Otis v. Walter. 6 W. harbor and Point Gammon. The cargo, when stored by the collector, was some of it in bad and perishable condition, and was put in better order by coopering, &c., before being stored. On this evidence, the jury were charged that, under the clearance, the captain had a right to go to any part of Yarmouth with his vessel, notwithstanding it might have been the intention of him and the owner that she should go to Bass River in that town; that if she had been carried beyond Bass River by force of the winds, and contrary to the master's intention, and came to anchor in Hyannis Bay, within the limits of the town of Barnstable, for that cause, still, if the jury believed that, in consequence of this state of things, the captain had concluded to give up his intention of going to Bass River, and in lieu thereof, to carry his vessel to Gage's wharf, which is within the town of Yarmouth, on the same side of Point Gammon as Barn[*588] stable, and to all * substantial purposes the same harbor; and for this purpose, was waiting only for a proper opportunity to take the vessel into that wharf, they might justly and fairly determine that the voyage was terminated at the time Otis took possession of the vessel. Whether this part of the charge were correct, will depend on the true construction of the 11th section of the act of congress, under which this seizure was made, and which has already been referred to. Its language is: "that the collectors of the customs be, and they are hereby respectively authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever, in their opinion, the intention is to violate or evade any of the provisions of the acts laying an embargo, until the decision of the President of the United States be had thereupon." Of the ostensible destination of The Ten Sisters at the time of her leaving Ipswich, there can be no doubt. This, from the manifest and clearance, was Yarmouth or Bass River. What better evidence, then, could Otis have of this fact, than that which he acquired from an inspection of these papers. If, then, such was her ostensible destination at the time of her sailing from Ipswich, and she had not ar rived at Yarmouth or Bass River at the time of seizure, it would seem that he would have a right, under the provisions of this section, to detain The Ten Sisters, if in his opinion an intention existed of violating the embargo laws. It is not pretended that this was not his real opinion, or that, for an honest exercise of such an opin[* 589 ] ion, he ought to be punished. There is a confidence placed in the discretion of a collector in cases of this kind, which may be abused, but which ought to protect him from loss when there is no reason to believe, as there is not in this case, that the detention Otis v. Walter. 6 W. proceeded from sinister motives, and not from a conscientious desire. of discharging his duty. To subject a collector, or any public officer, to such an imputation, when acting under a discretion thus reposed in him, the circumstances ought to be such as almost to preclude the possibility of his having acted but from some unworthy or dishonorable motive. The court is much mistaken if the facts in this case are such as to lead to this conclusion. The only question, then, is, whether the circumstances were such at the time of seizure as to confer on the collector, or his deputy, the right of acting under the influence of an opinion that such illegal intention existed. But it is supposed that The Ten Sisters had substantially terminated her voyage, or that being driven beyond Point Gammon into Hyannis Bay she might lawfully terminate her voyage, and land her cargo at Barnstable. If a permit had been obtained to land her cargo at Barnstable, this argument would be entitled to much consideration; but when the master of a vessel, by her papers, bound to one port, applies for a permit to land her cargo at another place, he cannot, in that way, deprive the collector of considering the vessel as still in itinere, to her original port of destination, and if he suspects such application to be a mere pretence to conceal some illicit object, he has as good a right to make the seizure as if a permit had not been ap plied for. In the case of Otis v. Bacon, 7 Cranch, 596, a [* 590 ] permit to land the cargo had been granted before any seizure took place, which was considered by the court as evidence of the termination of the voyage, and that she could not thereafter be considered as actually or ostensibly bound to any other port. Nor can the exhibition of the manifest, or swearing to its contents, be considered as equivalent to a permit to land the goods. It might, on the contrary, furnish evidence, as it did here, of an ostensible destination from one port of the United States to another, where she had not yet arrived, and in which case the collector had authority to act; nor was he bound to believe, merely from that circumstance, or from the then situation of the vessel, that such destination was abandoned. On a former trial of this cause no clearance was produced, and the only testimony on this subject came out on the examination of the master, who declared that the vessel was bound to Yarmouth or Barnstable. Upon the whole, this court is of opinion that the learned judge who tried the cause committed an error in telling the jury that they might fairly and justly determine the voyage was terminated at the time of seizure, if they believed the captain had given up his intention of going to Bass River, and had determined to land his cargo at Gage's wharf, which, though within the boundary of Yarmouth, is in fact in the harbor of Barnstable, and that he was waiting only Otis v. Walter. 6 W. for a proper opportunity to take the vessel into that wharf. Now, this was placing the termination of the voyage, not on the [*591 ] fact of its having * actually ended, but on an intention of the master, of which it was impossible the collector could know any thing with certainty, who was to judge of his right and duty to make the seizure only from the papers of the vessel, and the situation in which she was found, which is admitted to have been short of her destined port. But if a secret intention of the master be permitted to be set up as a ground of decision, and this, too, contrary to the written evidence in the cause, on which alone a public officer can act with safety, he would always be exposed to risks which might deter him from acting altogether. The jury, therefore, should have been left to decide from the other evidence in the cause, independent of any secret or even declared intention in the mind of the master, whether the ostensible voyage was terminated or not; and it seems difficult to conceive how their decision could have been otherwise than favorable to Otis. In this part of the charge, therefore, the court is of opinion there is error. * Another part of the court's instruction to the jury is also complained of; it is that in which the chief justice remarks that the collector had no authority, without the consent of the master, or person having the care of the cargo, to unlade it from the vessel and store it. It is not known what influence this opinion had on the jury; but in the unqualified terms in which the collector's right to unlade the cargo is denied, this court does not concur. We have already decided that with the consent of the master or agent of the owner, the cargo may be landed, but it was not intended [*592] to say that in no other case could such landing and storing be justifiable. If it appear that the collector, during the detention of the vessel, shall, bona fide, think it will tend to the security and preservation of the property to unlade it, and will do it at his own expense, it is not perceived why he may not do so, but at the peril of such an act being regarded, per se, as a conversion of the property. At any rate, this consequence ought not to follow, unless it shall appear that the property was lost or injured in consequence of such landing. That not appearing to have been the case here, it is not necessary to say what effect such a circumstance could have had in this suit. All that it is intended to say here is, that a landing for the purposes and under the circumstances which appear on this record, is not of necessity, or in itself, a conversion. Judgment reversed, and a venire facias de novo awarded. 11 W. 192. Goszler v. Corporation of Georgetown. 6 W. GOSZLER V. THE CORPORATION OF GEORGETOWN 6 W. 593. The power given to the corporation of Georgetown, by the act of Maryland, of November, 1797, c. 56, to graduate the streets of that city, is a continuing power, and the corporation may from time to time alter the graduation so made. The ordinance of May, 1799, by which the corporation of Georgetown first exercised the power of graduating the streets, is not in the nature of a compact, and may be altered by the corporation. Key, for the appellant. Jones, for the respondent. MARSHALL, C. J., delivered the opinion of the court. This is an appeal from a decree of the circuit court of the United States for the county of Washington, in the District of Columbia, on the following case. In the year 1797, the legislature of Maryland, among certain additional powers given to the corporation of Georgetown, enacted, that they "shall have full power and authority to make such bylaws and ordinances for the graduation and levelling of the streets, lanes, and alleys, within the jurisdiction of the same town, as they may judge necessary for the benefit thereof." Act of Nov. 1797, c. 56, s. 6, p. 35. In pursuance of this authority the corporation* passed [* 594 ] an ordinance, in May, 1799, for the graduation of certain streets; the 1st section of which appoints commissioners, and authorizes them "to make the level and graduation of the streets;' and the second is in these words: "And be it ordained, that the said level and graduation, when signed by the said commissioners or a majority of them, and returned to the clerk of this corporation, shall be forever thereafter considered as the true graduation of the streets so graduated, and be binding upon this corporation, and all other persons whatever, and be forever thereafter regarded in making improvements upon said streets." The plaintiff in error owned lots upon one of these streets, and made improvements thereon, according to the graduation made and returned to the clerk of the corporation, under the directions of this ordinance. In September, 1816, the corporation passed another ordinance, directing the level and graduation of this street to be altered; and the commissioners appointed, being about to cut down the street by the plaintiff's house, were enjoined from proceeding by a bill filed by the plaintiff against them and the corporation. Upon the final hearing of this case, the circuit court dismissed the Goszler v. Corporation of Georgetown. 6 W. bill, being of opinion that the corporation had the power asserted in their answer, of altering the level and graduation of a street graduated under their former ordinance of May, 1799. The counsel for the appellant contends, that the circuit court erred in dismissing his bill, because, * 595] * I. The power to graduate streets as given by the legis lature of Maryland, was not a continuing power, but was completely executed by the ordinance of May, 1799, and has never been renewed. II. The ordinance of May, 1799, is in the nature of a compact, and is unalterable. 1. The language of the act certainly does not imply that the power it confers is exhausted in its first exercise. The power is not "to graduate and level the streets," or "to make a by-law for the graduation and levelling of the streets;" but "to make such by-laws and ordinances for the graduation and levelling of the streets, &c., within the jurisdiction of the same town, as they may judge necessary for the benefit thereof." a The act seems to contemplate a continuance of the power, and repetition of the by-laws and ordinances, as the corporation "may judge necessary for the benefit of the town." It gives a power to legislate on the subject, and to pass more than one by-law and ordinance respecting it. Unless, then, there be in the nature of the operation something which forbids its repetition, the words of the act import no such prohibition. There can be no doubt that the power of graduating and levelling the streets ought not to be capriciously exercised. Like all power, it is susceptible of abuse. But it is trusted to the inhabitants themselves, who elect the corporate body, and who may therefore be expected to consult the interests of the town. * Although this power may be oppressively repeated, the [596] possession of it cannot be pronounced so improper or so dangerous, as to control, essentially, the words which confer it. The graduation and levelling of the streets is not, necessarily, a single operation. There may be circumstances to produce a general desire to vary the graduation, to bring the streets more nearly on a level than was contemplated in the first ordinance; and if this may occur, we cannot say that the legislature could not intend to give this power of varying the graduation, when the words they employ are adapted to the giving of it. Two acts of congress for amending the charter of Georgetown have been relied on. That passed in January, 1805,1 empowers the 1 2 Stats. at Large, 335. |