#### AVERY T. CRARY ET AL. v. THE UNITED STATES.

[No. 21428.

Decided February 15, 1909.]

*On the Proofs.*

Sheep are brought from Mexico into the United States. At the time there is no custom-house officer on duty to inspect them in Mexico, but the collector of customs at El Paso permits them to be brought across the Bio Grande and inspected by an inspector of the United States. Subsequently the veterinary inspector of the Mexican Government certifies the sheep to be in good healthy condition. While held in quarantine it appears that some of them are diseased. The Secretary of Agriculture orders them all slaughtered.

I. Where the Secretary of Agriculture orders, under the *Act 30th*August, *18S0*(26 Stat. L., p. 414), that sheep brought in from Mexico and found diseased and infected be slaughtered to stop the further spread of the disease it creates a liability on the part of the Government under the statute to pay for those not infected.

II. Where sheep were slaughtered which were not infected, the value of them, ascertained in the manner prescribed in the statute, plus the duty paid on the sheep, constitutes the measure of damages.

*The Reporters’’*statement of the case:

The following are the facts of tbe case as found by the court:

I. On or about December 15, 1896, the claimants herein, Avery T. Crary, Allen Packer, and Albert A. Knott, citizens of the United States, purchased, through their agent, J. B. Manby, from Carlos Zuloaga at his ranch in the State of Chihuahua, Mexico, for shipment into the United States, 5,238 head of sheep, for which they paid $2.25 per head in Mexican money, the equivalent of $1.16§ in United States currency. At the time of said purchase the contagious disease among sheep, known as “ scabies,” existed in the State of Chihuahua, but not on the ranch of Carlos Zuloaga, from which said sheep were purchased. The claimants and their agent, J. B. Manby, who had long experience in buying, *389selling, raising, and handling sheep, and who were familiar with the disease known as “ scabies,” examined the sheep at the time of purchase and did not discover that said sheep were affected with scabies. Said Carlos Zuloaga gave his certificate as to the condition of the sheep as follows:

“ This is to certify that the lambs sold by me to A. A. Knott and Crary and Packer, numbering five thousand two hundred and thirty-eight, were raised on my ranch at Bus-tillos, in the State of Chihuahua, and are in good health, nor has there been any disease in my flock of sheep. Said sheep were delivered by me to said parties above mentioned, at Chihuahua stock yards, on Dec. 26th.

“ Chihuahua, Dec. 28, 1896. '

“ Carlos Zuloaga.”

Said sheep were driven on foot from said ranch to the rail-, road station in the city of Chihuahua, a distance of about *75*miles, where they were kept in stock yards for about two days, and then loaded in the cars of the Mexican Central Railway Company, December 26, 1896, for shipment, consigned to the claimants at El Paso, Tex. While en route the train upon which the sheep were being transported was delayed about twelve hours by reason of a broken engine, and for that reason the train with said sheep did not arrive until December *27,*1896, at 4.15 p. m., at Ciudad Juarez, on the Mexican border opposite El Paso. On the drive and while on the cars the sheep were poorly fed, and would bite and pull the wool from each other. At the time of the arrival of the sheep at Ciudad Juarez, aforesaid, there was no customs or other officer on duty there to inspect the sheep, nor was there any stock yard there into which said sheep could be unloaded. A broker was there who had been retained by the claimants to draw up the necessary papers for importation, and either he, the superintendent of the railroad, or the station agent telephoned to the deputy collector of customs at El Paso, and secured his permission to bring the sheep across the Rio Grande to El Paso, where they were unloaded and placed in the stock yards at that place, and where they were inspected and counted by the United States customs inspector of the port of El Paso. After said sheep had been placed in the stock yards aforesaid the veterinary *390inspector of tlie Mexican Government gave the claimants the following certificate:

“ The undersigned, veterinary inspector of Ciudad Juarez, certifies that five thousand two hundred and thirty-eight (5,238) head of sheep, on this day exported by T. J. Wood-side through this port, were found in a good healthy condition.

“ Liberty and Constitution.

“ Ciudad Juarez, Dec. 27, 1896.

“ The Veterinary,

“ Francisco J. Herrara.”

On the next day, December 28,1896, the duty on said sheep was paid to the collector of customs, amounting to $836. All this time and for several days afterwards the sheep continued to be held in quarantine. The sheep were permitted to be brought into the United States without inspection in Mexico, in accordance with the practice which had theretofore prevailed at that port regarding all stock imported from Mexico, of which the inspectors were aware and which had been acquiesced in by the officers of the Bureau of Animal Industry, though in violation of rule 4 of the regulations of February 11, 1895, respecting the examination and inspection of stock before its importation into the United States.

II. On December 28, 1896, while said sheep were still in quarantine in said stock yards at El Paso, they were inspected by officers of the Bureau of Animal Industry, who discovered that some of the sheep were affected with scabies, and thereupon the chief inspector at Kansas City was informed by telegraph, and instructions were asked for. Upon the receipt of this telegram the chief inspector wired to return the sheep to Mexico, of which the. claimants were advised, but they declined to do so, on the ground that the Mexican authorities refused to receive the sheep without a bill of health and the payment of $1 per head duty. Said inspectors of the Bureau of Animal Industry were then directed by the chief inspector to again inspect the sheep, which they did on January 5, 1897, and reported to said chief inspector that the condition of the sheep was such that it would be unsafe to remove them from the quarantine in which they had been placed by order of the Secretary of *391Agriculture. The chief inspector for the Department of Agriculture arrived in El Paso January 7, 1897, and, not being satisfied with the inspection made by the local inspectors, he made another examination of the sheep, and found that 40 per cent of the herd was affected with scabies of probably thirty days’ duration. The chief inspector, Mr. Dean, thereupon ordered the sheep slaughtered, in accordance with directions from the'Secretary of Agriculture, under the act of August 30, 1890 (26 Stat. L., 414), which was accordingly done on January 11 and 12, 1897, and all of said sheep were destroyed.

III. The court finds that at least 40 per cent of the sheep so imported, or 2,095, were affected more or less with scabies, and if the claimants are entitled to recover, said number should be deducted from 5,238, leaving 3,143 sheep. The sheep so imported were appraised by appraisers appointed under section 8 of the act of August 30, 1890, supra, at $1 per head, which the court finds was the reasonable value thereof; and if the claimants are entitled to recover for said 3,143 sheep, plus the import duty of $836 so paid, then there will be due them the sum of $3,979.

*Mr. George A. King*for the claimant. *Messrs. Geo. A. and Wm. B. King*were on the brief.

*Mr. F. W. Collins*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

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.

*392The 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.