1. An action against a collector of internal revenue to recover
taxes erroneously exacted by him is based upon his personal
liability, and cannot be maintained against his successor in office
who had no part in the assessment, collection, or disbursement of
the taxes. P.
257 U. S. 4.
Sage v. United States, 250 U. S. 33.
2. The statutory provisions for defense by the district attorney
and for withholding execution against the collector and paying the
judgment from the Treasury where the judgment contains a
certificate of probable cause, etc. (Rev.Stats., §§ 771, 989) do
not create a new statutory liability attached to the office and
passing to successors. P.
257 U. S. 4.
3. The Act of February 8, 1899, c. 121, 30 Stat. 822, providing
that a suit against an officer of the United States in his official
capacity shall not abate by reason of his death or the expiration
of his term of office but may be allowed to be maintained against
his successor, supposes a suit already begun against the officer in
his lifetime. P.
257 U. S. 5.
Certificate from the circuit court of appeals propounding
questions arising upon the review of a judgment
Page 257 U. S. 2
against Smietanka in an action to recover taxes exacted by his
predecessor as Collector of Internal Revenue.
Page 257 U. S. 3
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought to recover internal revenue special
excise taxes for the years 1910 and 1912, assessed under the Act of
Congress of August 5, 1909, c. 6, § 38, 36 Stat. 11, 112, and paid
by the plaintiff, the defendant in error, under duress. The taxes
were collected by S. M. Fitch, then collector of internal revenue,
and it was certified by the district court as part of its judgment
that there was probable cause for the act of the collector, that he
acted under the direction of the Commissioner of Internal Revenue,
and that the amounts recovered should be provided for and paid out
of the proper appropriation from the Treasury of the United States.
The defendant is the present collector for what was Fitch's
district, and was held liable by this judgment. The case was taken
to the circuit court of appeals, which has certified the following
questions:
"1. Assuming that the declaration states a good cause of action
had the suit been brought against S. M. Fitch, the internal revenue
collector who actually collected and received the taxes, does it
state any cause of action whatever against said S. M. Fitch's
successor in office, the plaintiff in error, against whom the suit
was brought, but who had no participation in the collection,
receipt, or disbursement of such taxes? "
Page 257 U. S. 4
"2. May suit in the district court of the United States properly
be brought and maintained against a United States collector of
internal revenue for the recovery of the amount of a United States
internal revenue tax, unlawfully assessed and collected, but in the
collection and disbursement of which such collector had no agency,
the entire transaction of such assessment, collection, and
disbursement having occurred during the incumbency of such office
of a predecessor in office of such collector?"
As the law stood before later statutes, a collector was liable
personally for duties mistakenly collected if the person charged
gave notice at the time of his intention to sue, and warning not to
pay over the amount to the Treasury.
Elliott v.
Swartwout, 10 Pet. 137. But after an Act of
Congress had required collectors to pay over such monies, it was
held, against the dissent of Mr. Justice Story, that the personal
liability was gone.
Cary v.
Curtis, 3 How. 236. Later statutes, however,
recognize suits against collectors in such cases, and the plaintiff
contends that they should be construed to create a new statutory
liability attached to the office and passing to successors, as was
held in this case, the formal defendant being saved from harm by
the United States. This, however, is not the language of the
statutes, and hardly can be reconciled with the decision of this
Court in
Sage v. United States, 250 U. S.
33, and other cases to which we shall refer.
To show that the action still is personal, as laid down in
Sage v. United States, 250 U. S. 33,
250 U. S. 37, it
would seem to be enough to observe that, when the suit is begun, it
cannot be known with certainty that the judgment will be paid out
of the Treasury. That depends upon the certificate of the court in
the case. It is not to be supposed that a stranger to an
unwarranted transaction is made answerable for it, yet that might
be the result of the suit if it could be brought against a
successor to the collectorship.
Page 257 U. S. 5
A personal execution is denied only when the certificate is
given. It is true that, in this instance, the certificate has been
made, but the intended scope of the action must be judged by its
possibilities under the statutes that deal with it. The language of
the most material enactment, Rev.Stats. § 989, gives no countenance
to the plaintiff's argument. It enacts that no execution shall
issue against the collector, but that the amount of the judgment
shall "be provided for and paid out of the proper appropriation
from the Treasury" when and only when the court certifies to either
of the facts certified here, and
"when a recovery is had in any suit or proceedings against a
collector or other officer of the revenue for any act done by him,
or for the recovery of any money exacted by or paid to him and by
him paid into the Treasury, in the performance of his official
duty."
A recovery for acts done by the defendant is the only one
contemplated by the words "by him." The same is true of Rev.Stats.
§ 771, requiring District Attorneys to defend such suits.
No different conclusion results from the Act of February 8,
1899, c. 121, 30 Stat. 822. That is a general provision that a suit
by or "against an officer of the United States in his official
capacity" should not abate by reason of his death, or the
expiration of his term of office, etc., but that the court, upon
motion within twelve months showing the necessity for the survival
of the suit to obtain a settlement of the question involved, may
allow the same to be maintained by or against his successor in
office. Whether this would apply to a suit of the present kind is
at least doubtful.
Roberts v. Lowe, 236 F. 604, 605. In
Patton v. Brady, 184 U. S. 608, a
suit against a collector begun after the passage of this statute,
it was held that it could be revived against his executrix, which
shows again that the action is personal, as also does the fact that
the collector may be held liable for interest.
Erskine v.
Van
Page 257 U. S. 6
Arsdale, 15 Wall. 75.
Redfield v. Bartels,
139 U. S. 694.
But, in any event, the statute supposes a suit already begun
against the officer in his lifetime. We need not consider the
remedies against the United States.
United States v. Emery.
Bird, Thayer Realty Co., 237 U. S. 28;
Sage v. United States, 250 U. S. 33. It
appears to us plain without further discussion that both questions
must be answered: No.
Answer to Questions 1 and 2: No.
MR. JUSTICE McKENNA and MR. JUSTICE CLARKE dissent.