When, upon the hearing of a certificate from the Circuit Court
of Appeal, the plaintiff in error concede that answer to the
questions certified can avail nothing, owing to his incapacity to
litigate the claim to which they relate, the certificate (the other
party not opposing) will be dismissed. P. 271 U. S.
Questions certified by the circuit court of appeals upon a writ
of error to a judgment of the district court, 4 F.2d 418, which
allowed recovery from the Collector of taxes assessed for
violations of the liquor regulations and overruled a counterclaim
set up by the Collector for the full penal amount of the
plaintiff's surety bond. See also
MR. JUSTICE SANFORD delivered the opinion of the Court.
The circuit court of appeals has certified to us in this case
the same questions that were submitted in United States v.
p. 271 U. S. 332
reference to permit bonds covering the sale and use of distilled
spirits and wines for other than beverage purposes.
Page 271 U. S. 343
It appears from the certificate that, on March 20, 1920, after
Regulation 60 had been promulgated, prescribing a surety bond on
Form 1408, a permit was issued to O'Kane on a surety bond in the
penal sum of $2,000, executed on Form 738. While this permit was in
force, O'Kane violated the National Prohibition Act and the
regulations by selling whisky to a pharmacy having no permit to
purchase it and failing to keep a record of the sales as required
by the regulations. He was assessed with a differential tax of
$1,098.72. He paid this, under protest, to Lederer, the Collector
of Internal Revenue, and thereafter brought suit against Lederer in
a federal district court to recover the amount paid. Lederer, while
conceding this claim, interposed a counterclaim for $2,000 on the
surety bond, the full amount of which, he insisted, had become due
to the United States by reason of the breach of condition. The
district court, holding that "the amount named in the bond
represents a limit, and not a measure, of liability," denied the
counterclaim and gave O'Kane judgment for the amount of the tax
paid. O'Kane v. Lederer,
4 F.2d 418. And, the case having
been taken to the circuit court of appeals on a writ of error, it
has certified to us, in effect, the questions whether a surety bond
executed on Form 738, after Form 1408 had been prescribed, is a
forfeiture bond entitling the United States to recover the full
amount named on a breach of its condition, or an indemnity bond
In the brief filed in this Court in behalf of Lederer, it is now
said that the decision in Sage v. United States,
250 U. S. 33
"makes it plain that, in defending an action for the recovery of
taxes alleged to have been illegally collected, a collector of
internal revenue is not acting for and in behalf of the United
States, but is seeking to prevent the entry of a personal judgment
and that it
"would apparently follow that the collector is without right in
such a case to set up as a counterclaim
Page 271 U. S. 344
an alleged indebtedness of the plaintiff to the United
And it is suggested that,
"as the judgment of the district court must be affirmed by the
circuit court of appeals without regard to the points presented in
the certified questions,"
an answer to these questions, which would avail nothing, is not
required. United States v.
18 Wall. 125, 85 U. S. 129
United States v. Britton, 108 U.
, 108 U. S.
In view of the concession now made by Lederer, this suggestion
is not opposed by the counsel for O'Kane's executrix. Accordingly,
without answering the question certified, the
Certificate is dismissed.