Truth Seeker Co. v. Durning

• Decision Date: 18 January 1945
• Docket Number: No. 180.,180.
• Citation: 147 F.2d 54
• Parties: TRUTH SEEKER CO., Inc., v. DURNING, Collector of Customs.
• Court: U.S. Court of Appeals — Second Circuit

147 F.2d 54 (1945)

TRUTH SEEKER CO., Inc., v. DURNING, Collector of Customs.

No. 180.

Circuit Court of Appeals, Second Circuit.

January 18, 1945.

George Dyson Friou, of New York City, for plaintiff-appellant.

Arthur C. Power, Asst. U. S. Atty., of New York City (John F. X. McGohey, U. S. Atty., of New York City, on the brief), for defendant-appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

In an extensive complaint of some thirty-three paragraphs plaintiff alleged that it had placed orders with English book sellers and publishers for twenty copies of "The Bible Handbook" by Foote and Ball, first published in 1888, twenty copies of "Papacy in Politics Today" by McCabe, first published in 1937, and copies of "The Free Thinker," a periodical published in England for more than fifty years, and that it had been notified by an assistant of the defendant that the books and periodicals had arrived in New York, but were "being forwarded to the Customs seizure room to be detained for the duration of the war, at which time you may make application for their release." The publications in question were then asserted to be well known, found in public libraries in the country, and without immorality, obscenity, or other illegal matter; and plaintiff alleged demand for delivery with offer to pay proper charges, and defendant's illegal and capricious refusal violating the three freedoms of the press, of speech, and of religion. In its final three paragraphs plaintiff first asked "a determination with respect to these three freedoms as enlightened and liberal as now prevails in the British Isles," then alleged that it was without other adequate legal remedy and would suffer irreparable injury unless it had the relief prayed for, and finally stated that it sought a peremptory or alternative writ of mandamus to the defendant without seeking "to review any act of the defendant." The complaint concludes with a prayer for an order to compel the defendant to admit the books and publications into the Port of New York and to deliver them to the plaintiff after assessment and payment of any proper fees, "and that plaintiff have such other and further relief as to the Court may seem just and proper." The defendant's time for answer having been extended to September 22, 1943,¹ he returned the publications to the plaintiff on September 16, 1943, and then moved for dismissal of the complaint, which the court granted without costs, October 13, 1943, against the objecting affidavit of the plaintiff.

While the plaintiff appears now to be seeking chiefly the award of costs against the defendant because of the illegality of the detention and in order to prevent recurrences of similar infringements of its rights — thus it asserts that it has already run into further difficulties with later shipments of such books as Thomas Paine's "The Age of Reason" — yet it appealed from the entire order and now asks for reversal and judgment in its favor. In this it seems well advised, for if defendant was entitled to the judgment he obtained below, plaintiff is hardly entitled to costs, and in any event the discretion exercised by the judgment to refuse them is not to be disturbed. Cf. Shima v. Brown, App.D.C., 140 F.2d 337; Federal Rules of Civil Procedure, rule 54 (d), 28 U.S.C.A. following section 723c. Hence we must decide whether the defendant was entitled to a summary dismissal on a mere showing that he had seemingly repented of his action, and with no explanation of record as to why he took it in the first place. The notice of detention suggests that something involving the prosecution of the war was thought to be involved, and the action presumably was taken under 19 U.S.C.A. § 1305, prohibiting the importation of books or pamphlets of an immoral or subversive character. But under this statute, which allows no protest to be taken to the United States Customs Court, the collector must transmit information to the district attorney of the district, who must institute proceedings in the district court for the forfeiture and confiscation of the book or matter seized. But although some six months elapsed between the time of detention and the time of release of the books and periodicals, there is no suggestion that any such steps were taken; and it is difficult to perceive what possible relation this material can have to the conduct of the war. For the purposes of this appeal, therefore, we must assume that the detention was illegal.

Now it is quite clear, in view of the ancillary nature only of federal mandamus — except in the District of Columbia — that the plaintiff's suggestion of mandamus as a remedy is unsound. Youngblood v. United States, 6 Cir., 141 F.2d 912, 914, 915; Barber v. Hetfield, 9 Cir., 4 F.2d 245; Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743. But plaintiff has made its allegations full and complete, and has in fact asked, in addition to an order for the return of the material, for "such other and further relief as to the Court may seem just and proper." Moreover, without reference to its prayer, it is entitled to the relief to which the stated facts entitle it, even though its own theory of relief may have been unsound. F.R.C. P. 54(c); United States for the Use of Susi Cont. Co. v. Zara Cont. Co., 2 Cir., 146 F.2d 606, and cases cited. There is no remedy directly against the United States for illegal action of the collector, although the collector himself in appropriate instances may be reimbursed, 28 U.S.C.A. § 842; the usual remedy appears to be one to hold the collector personally for a default or other improper performance of his duties in an action for damages. Dioguardi v. Durning, 2 Cir., 139 F.2d 774, 775; Conklin v. Newton, 2 Cir., 34 F.2d 612, 614; Union Oil Co. of California v. Bryan, D.C.S.D.Cal., 52 F.Supp. 256, 261; De Lima v. Bidwell, 182 U.S. 1, 177-180, 21 S.Ct. 743, 45 L.Ed. 1041.

In such an action it would seem quite clear that the return of the goods was not a complete defense, but would serve only to mitigate damages. That was the well settled rule of the common law now embalmed in Restatement, Torts, 1934, § 247, dealing with the conversion of chattels; indeed, as there stated, three conditions must concur even for the mitigation of damages: that the conversion was in good faith, that the physical condition of the goods was unimpaired, and that tender was promptly made and kept good thereafter. Colby v. Reed, 99 U.S. 560, 566, 25 L.Ed. 484. And while it seems, as plaintiff apparently visualized in its allegations of irreparable injury, that it might properly invoke the...