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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 542 The first point taken by the plaintiff in error is, that if any action could be maintained against him, the defendant in error had not the choice of a forum, as the jurisdiction of the courts of the United States, in a case of this character, is exclusive. If this proposition be true, it is quite unnecessary for the plaintiff in error to come here to ask us to reverse the judgment, for it is utterly void.
This is undoubtedly a question of grave importance; for if the plaintiff in error be right, the state courts have been wrong ever since the adoption of the constitution of the United States; as the cases are almost without number, in which such courts, in the exercise of their ordinary, original and rightful jurisdiction, have incidentally taken cognizance of cases arising under the constitution, the laws, and treaties of the United States. (1 Kent's Com. 395.) In our own courts, officers of the government of the United States have been impleaded in actions of assumpsit, debt, trespass, c. in which the defence set up was that they were acting officially under the laws of the Union. (Ripley v. Gelston, 9 John. R. 201; In the matter ofStacy, 10 id. 328; Hoyt v. Gelston Schenck, 13 id. 141; Wilson v. M'Kenzie, 7 Hill, 95;) and in at least one case the supreme court of this state held that they had jurisdiction, and sustained a suit on a bond for duties given to a collector of the United States customs. (United States v.Dodge, 14 John. *Page 544 R. 95.) I am not disposed to assume for the courts of this state the exercise of powers, concurrently or otherwise, clearly taken from them by the constitution of the United States; nor a jurisdiction in all cases that may grow out of, and be peculiar to that instrument: but I think that to divest them of primitive jurisdiction, or pre-existing authority, the grant of power to the federal courts should be direct and exclusive, and the exercise of it by the state courts expressly prohibited. This was the construction given to the clauses of the constitution providing for the organization of the federal judiciary, cotemporaneous with its adoption, both by the national legislature and eminent expounders of it. (Judiciary Act of 1789; Federalist, No. 82.)
The first section of the third article of the constitution of the United States provides for the organization of a supreme court, and such inferior courts as congress may from time to time ordain and establish. This provision simply denotes the organs of the national judiciary. Were its construction extended further, "it would (as has been remarked by one of the eminent framers of the constitution,) amount to an alienation of state power by implication." (Federalist, No. 82.) The second section provides that "the judicial power shall extend to all cases in law and equity, arising under, this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." This is a mere grant of jurisdiction to the federal courts, and limits the extent of their powers, but without words of exclusion, or any attempt to oust the state courts of concurrent jurisdiction, in any of the specified cases in which jurisdiction existed prior to the adoption of the constitution. The apparent *Page 545 object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary.
This doctrine of exclusive and concurrent jurisdiction growing out of the provisions of the third article of the constitution of the United States, was fully examined in the court for the correction of errors, in the case of Delafield v. State ofIllinois, (2 Hill, 159,) and that court, with great unanimity, arrived at the conclusion, that the constitution had not, by its own force, divested the state courts of any of their former jurisdiction; and that a mere grant of jurisdiction to a particular court, without words of exclusion as to other courts previously possessing the like powers, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter. See, also, Federalist, No. 82, in which a similar doctrine is maintained.
I will not contend that congress may not make the jurisdiction of the federal courts exclusive in cases affecting ambassadors, other public ministers, and consuls; or in cases of admiralty and maritime jurisdiction; or in cases growing out of, and peculiar to the federal constitution, and where the remedy is exclusively given by an act of the national legislature. In the latter cases congress may unquestionably provide that the remedy specifically given shall be pursued and enforced in the federal courts solely. But in many cases where the law of the Union prescribes the remedy, the power to pursue and enforce it in the state courts, is expressly given by congress. In cases where this has not been done, and there is no exclusive grant of jurisdiction to the federal courts, if the state tribunals are so organized as to afford redress, it may be obtained therein. I think that it is strictly true that in all civil cases where the common law affords redress, the party injured may seek it in a state tribunal, proceeding according to the course of the common law, and having jurisdiction of the person of the defendant, though he may be an officer of the federal government, and affect to act under a law of the Union. "The judiciary power of every government," says one of the distinguished authors of the Federalist, "looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation *Page 546 between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan not less than of New-York may furnish the objects of legal discussion to our courts." (Federalist, No. 82.) I am aware that there are cases of federal cognizance, in which the state courts have not a concurrent jurisdiction. A sovereign state cannot be sued in the court of another state, neither could she be in the federal courts, but by agreeing expressly in the national compact to submit herself to their jurisdiction. Crimes against the government of the United States cannot be punished in the state courts, for every criminal prosecution must charge the offence to have been committed against the sovereign whose courts sit in judgment upon the offender, and whose executive may pardon him. (1 Kent's Com. 402.) Nor will the courts of this state enforce the penal laws of the United States, (United States v. Lathrop, 17 John. R. 9.) or of any other state. (Scoville v. Canfield, 17 John.R. 338.) But the want of jurisdiction in these cases depends upon principles older than the federal constitution, and wholly independent of it.
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 *Page 547 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 defence 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
The remaining point of the plaintiff in error is, that the postmaster was required by law to judicially determine whether the initial on the wrapper of the newspaper, asked for or communicated information; and that being compelled to act, he is not answerable for a mistake in law, or a mere error of judgment, unaccompanied by fraud or malice. The principle is well settled that a public officer, who is not a mere volunteer, but compelled to act in a judicial capacity, is not amenable either civilly or criminally, for a mistake in law, or error of judgment, when his motives are untainted with fraud or malice: and if it be true that the postmaster in this case was compelled to exercise his judgment in determining the object or purpose of the initial upon the wrapper, the judgment against him should be reversed. (Drew v. Coulton, 1 East's R. 563; Seaman v. Patten, *Page 548 2 Caines' R. 312; Jenkins v. Waldron, 11 John. R. 114;Weaver v. Devendorf, 3 Denio, 117.) I have been unable, however, to arrive at the conclusion on this point, so confidently put forth by the counsel for the plaintiff in error. In the act "to reduce the rates of postage," c. (Laws of the U.States for 1845, chap. 43, § 1,) this provision occurs: "In lieu of the rates of postage now established by law there shall be charged the following rates, viz: For every single letter in manuscript, or paper of any kind by or upon which informationshall be asked for or communicated in writing, or by marks andsigns, conveyed in the mail, for any distance under three hundred miles, five cents; and for any distance over three hundred miles, ten cents," c. This is the only provision touching the question, and this it is insisted compels the postmaster, in all cases, in which a newspaper shall be conveyed through the mail, having writing thereon, or marks and signs, to judicially determine whether such writing, or marks, or signs, ask for or communicate information. In other words, that it is submitted to him as the sole judge in every case to decide the question of fact; and it follows of course that from his judgment there is no appeal. I see nothing in the law of congress that submits this question exclusively to his judgment; nor is the power within the general scope of his duties as postmaster. I think that if he assumes to determine, he does it at his peril. It is true that he is bound to charge the rates of postage prescribed on letters or papers, conveyed by the mail, of the description embraced in the act of congress. In a great variety of cases it would be obvious that the writing, marks, or signs, were used to ask for or convey information, and as a matter of fact a jury would not hesitate to come to that conclusion. In such cases the postmaster would be but doing his duty to charge letter postage. But there may be cases where the intent is not apparent, or the writing, mark or sign, may be on the newspaper or its wrapper, without a definite intent, or by accident. He is not made the exclusive arbiter to decide that such newspapers should or should not be rated with letter postage. When he does undertake to decide, it should be in a case in which the fact, if disputed, *Page 549 could be satisfactorily established. Whether a newspaper, by having writing or marks thereon, falls within the description authorizing it to be rated with letter postage, is a question of fact, and if disputed, must be determined in the same manner and by the same tribunals, that determine other questions of fact.
I confess that I see difficulty in many cases to successfully carry out the provisions of the act of congress. It might be impossible, many times, for jurors to satisfactorily determine whether an initial, or mark, found on a newspaper passing through the mail, was placed thereon with a definite intent. But this is no reason for the postmaster to assume judicial power. The national legislature can alone remedy the difficulty.
In this case the jury have found that the initial on the wrapper of the newspaper was there without any design of asking for or communicating information; that it was a mark thoughtlessly or accidentally made, or that it was on the paper prior to its being used as a wrapper, and hence that the paper did not fall within the description authorizing the postmaster to demand letter postage. From the return of the justice, no facts appear to indicate an intentional marking, nor are there any facts showing the contrary; and as the return does not purport to give the whole evidence, I think we must intend that the defendant failed to establish a defence, and that the facts proved justified the finding of the jury.
I am of the opinion that the judgments of the courts below should be affirmed.
Judgment affirmed. *Page 550