The due and regular assessment of a distiller's tax by an
internal revenue collector, properly certified, is a sufficient
defense to the collector in an action on the case against him by
the distiller to recover the value of property seized and sold for
the payment of the tax upon the ground that, in a subsequent action
by the United States against the distiller and the sureties on his
bond to recover the uncollected portion of the same tax, its
assessment was adjudged to have been invalid, and this defense may
be set up under the general issue without pleading it specially in
justification.
This was an action against the collector of internal revenue of
the Fifth Collection District of Tennessee for an alleged wrongful
seizure and sale of property of the plaintiff upon an assessment
against him as a distiller of liquors, made by the
Page 137 U. S. 44
Commissioner of Internal Revenue. It was commenced in a state
court of Tennessee, and upon application of the defendant was
removed to the circuit court of the United States. The material
facts as disclosed by the record were these: the plaintiff in 1881
and in 1882 owned and operated a distillery of liquors in the
County of Robertson, Tennessee, and had executed the bond required
by statute in such cases. In July, 1881, an assessment was made
against him for taxes alleged to be due to the United States,
amounting to $4,339.37, for whiskey supposed to have been produced
by him at his distillery. The plaintiff thereupon applied to the
commissioner, in accordance with the statutes and the regulations
of the Treasury Department, to reconsider the assessment, termed in
the statute an appeal to him, but a reconsideration was refused.
Upon the assessment, the defendant, as collector, on the 3d of
January, 1882, seized property belonging to the plaintiff
consisting of 578 gallons of whiskey, and on the 16th of that month
sold the same for $32. On the second of June, 1882, he seized other
personal property of the plaintiff and also levied upon the
distillery premises containing ten acres, and soon afterwards sold
both for $7 6.72. The price thus received was greatly below the
actual value of the property. The plaintiff delivered the personal
property and the distillery to the purchaser, with a deed of the
latter premises.
In March, 1882, an action was brought by the United States
against the distiller and the sureties on his bond to recover the
taxes assessed, and in November, 1883, a verdict was rendered in
their favor. The question in issue in the action was the validity
of the taxes assessed. The verdict and the judgment thereon were
produced and relied upon as establishing the invalidity of the
assessment and the liability of the collector for the damage
sustained by the plaintiff for the seizure and sale of his
property. The first seizure and sale, as stated above, took place
before the action was begun, and the second seizure and sale,
though afterwards, were made before the trial in the action was
had.
The declaration contained three counts. The first set forth
substantially the facts as stated above, except the amount at
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which the property seized was sold. It also averred that the
plaintiff at the time protested against the seizure and sale in
both cases, and that by them he was deprived of the use, control,
and ownership of his property, to his great damage. The second
count was for a conversion of the property, and the third for
trespass on the distillery premises. To the declaration, the
defendant, in addition to the general issue of not guilty, filed
several special pleas -- among others, one of justification of the
acts complained of, averring that they were done by him as
collector in the enforcement of the assessment duly made and
certified to him by the Commissioner of Internal Revenue, with a
direction to collect the same by distraint. There was a replication
to this plea, and a demurrer to the replication, which was finally
disposed of by the court ordering the plea to be stricken out. The
rulings upon the other special pleas do not require notice, as they
were not material to the disposition of the question presented. The
principal facts as disclosed by the pleadings were also established
by the evidence on the trial, the plaintiff introducing the
warrants issued to the collector for the seizure and sale of the
property.
The court instructed the jury that the taxes for which the
defendant, as collector, seized and sold the plaintiff's property
having been assessed, and the assessment certified to him, the
assessment was a complete protection to him against the suit of the
plaintiff, and directed the jury to return a verdict in his favor,
which was accordingly done, and judgment entered thereon. This
instruction was excepted to, and constituted the alleged error for
a reversal of the judgment.
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
The plaintiff contended in the court below, and renews the
contention here, that the plea of justification interposed by
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the defendant for the acts complained of -- the seizure and sale
of the property -- having been stricken out, he is left defenseless
in the action. That such would be the effect of the ruling if the
declaration was one in form for an ordinary trespass may be
conceded. But the rule that a justification to an alleged trespass,
to avail, must be pleaded does not apply here. The striking out of
the plea did not remove the fact that the seizure and sale were
made under proceedings which protected the officer of the
government from personal liability, because in the declaration
itself his liability is charged upon a state of facts which shows
that he acted in conformity with the law, and could not therefore
be held responsible for the alleged invasion of the rights of the
plaintiff in its enforcement.
When the assessment was certified to the collector, his duty in
enforcing it was one which he could not refuse to perform. There
was no discretion vested in him to revise or alter it in any
respect. His duty was purely ministerial. In
Erskine v.
Hohnbach, 14 Wall. 613,
81 U. S. 616,
which, like the present action, was brought against a collector of
internal revenue for the seizure and sale of property of the
plaintiff upon an assessment for taxes duly made by the assessor of
the district, the court held that the assessment certified to him
(the collector) was his authority to proceed, and, like an
execution to a sheriff, regular on its face, issued by a tribunal
having jurisdiction of the subject matter, constituted his
protection. At that time (1871), officers, termed "assessors," made
the assessment for taxes due to the United States on distilled
spirits in their several districts, 15 Stat. c. 133, c. 186, § 20,
but their office was abolished in 1873, and the power to assess for
such taxes vested in the Commissioner of Internal Revenue, 17 Stat.
401, 402, c. 13, §§ 1, 2. In the case referred to, the liability of
a ministerial officer in the enforcement of process was the subject
of consideration, and it was there held that whatever may at one
time have been the conflict in the adjudged cases as to the extent
of protection afforded to such officers acting in obedience to
process or orders issued to them by tribunals or officers invested
by law with authority to pass upon and determine
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particular facts, and render judgment thereon, it was now well
settled
"that if the officer or tribunal possesses jurisdiction over the
subject matter upon which judgment is passed, with power to issue
an order or process for the enforcement of such judgment, and the
order or process issued thereon to the ministerial officer is
regular on its face, showing no departure from the law or defect of
jurisdiction over the person or property affected, then and in such
cases the order or process will give full and entire protection to
the ministerial officer in its regular enforcement against any
prosecution the party aggrieved may institute against him, although
serious errors may have been committed by the officer or tribunal
in reaching the conclusion or judgment upon which the order or
process is issued."
This doctrine was deemed applicable to collectors of internal
revenue in enforcing an assessment for taxes regular on its face,
made by the assessors of the district, and duly certified to
them.
The same doctrine was reasserted in protection of a collector of
internal revenue in the subsequent case of
Haffin v.
Mason, 15 Wall. 671,
82 U. S. 675,
the Court observing that "a ministerial officer, in a case in which
it is his duty to act, cannot upon any principle of law be made a
trespasser."
No question is raised as to the regularity in form of the
assessment certified to the collector. It is assumed on both sides
that it is not open to objection in that respect. The principal
point urged by the plaintiff in error is that the defendant should
not have proceeded to enforce the assessment after the action by
the United States was commenced on the bond of the distiller to
collect the same taxes. But it is plain that the officer had no
discretion in the matter. He could not suspend or in any way delay
the performance of the duty imposed upon him, because the
government may have judged it proper to proceed for the same taxes
by action not only against the distiller, but against the sureties
on his bond also. The government may have thought that the property
which could be reached by the collector would prove inadequate to
meet the amount claimed. By instituting the action, it did not
waive its right to pursue any other remedies afforded by the law
to
Page 137 U. S. 48
secure the payment of its claim. Nor could the collector
consider whether, in the pending action it might not be ultimately
determined that the taxes were illegal which he was endeavoring to
collect. He had completed his duty more than a year before that
decision was rendered. Had the judgment of their illegality been
pronounced before the enforcement of the assessment by the
collector, and been brought to his notice, a different question
might possibly be raised.
What remedy the plaintiff may have for the loss of his property,
or for the amount of the proceeds obtained on its sale, we are not
called upon to determine in this case. There may be, perhaps, a
claim against the government. All that we decide is that a
liability cannot be fastened upon the collector, a ministerial
officer, for the enforcement of an assessment for taxes regular on
its face, made by the Commissioner of Internal Revenue. Of such an
officer the law exacts unhesitating obedience to its process.
Judgment affirmed.