A brewer paid to the collector of internal revenue $100 for
special tax on his business from May 1, 1873, to April 30, 1874,
for which a special tax stamp was given him. At the close of the
year, it was found that he had manufactured less than five hundred
barrels, and the Commissioner of Internal Revenue allowed his claim
for the excess paid by him. Upon proper application to the
Treasury, payment of the amount so allowed was refused.
Held:
l. That the allowance made by the commissioner, unless it be
impeached in some appropriate form by the United States, is
conclusive.
2. That the Court of Claims has jurisdiction of a suit by the
brewer against the United States to recover the amount, and that he
is entitled to judgment therefor.
This was an action against the United States to recover the
amount which the commissioner of internal revenue had certified to
the Comptroller of the Treasury that the claimant was entitled to
have refunded to him the value of returned special tax stamps,
after deducting therefrom five percent, as provided by law.
The facts are stated in the opinion of the Court.
There was a judgment against the United States, who thereupon
appealed.
Page 96 U. S. 568
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
Two questions are presented in this case:
1. Whether the Court of Claims has jurisdiction of a suit,
brought to recover an amount allowed by the Commissioner of
Internal Revenue, upon the claim of a brewer for an excess of
special tax stamps used by him in payment of the special tax upon
his business at the beginning of the year, when, at the close, it
was found that he had manufactured less than five hundred barrels,
and the payment of the amount so allowed has been refused upon
proper application at the Treasury.
2. Whether the facts found are sufficient to warrant the
judgment.
The Court of Claims has jurisdiction of
"all claims founded upon any law of Congress, or upon any
regulation of an executive department, or upon any contract,
express or implied, with the government of the United States."
Rev.Stat., sec. 1059.
All special taxes imposed by law, accruing after April 30, 1873,
must be paid by stamps denoting the tax. Rev.Stat., sec. 3238; 17
Stat. 402, sec. 3. A brewer is required to pay a special tax of
$100, "provided that any person who manufactures less than five
hundred barrels a year shall pay the sum of $50" (Rev.Stat., sec.
3244; 14 Stat. 117), and he cannot engage in or carry on his
business until he has paid the tax. Rev.Stat., sec. 3232; 14 Stat.
113.
"The Commissioner of Internal Revenue may, from time to time,
make regulations, upon proper evidence of facts, for the allowance
of such of the stamps issued under the provisions of this chapter,
or any internal revenue act, as may have been spoiled, destroyed,
or rendered useless or unfit for the purposes intended, or for
which the owner may have no use, or which, through mistake, may
have been improperly or unnecessarily used, or where the rates of
duties represented thereby have been paid in error or remitted; and
such allowance shall be made either by giving other stamps in lieu
of the stamps so allowed for, or by repaying
Page 96 U. S. 569
the amount or value, after deducting therefrom, in case of
repayment, the sum of five percent, to the owner thereof. . .
."
Rev.Stat., sec. 3426; 13 Stat. 294, sec. 161; 17
id.
257, sec. 41. Under the authority of this act regulations were
adopted, with the approval of the Secretary of the Treasury, June
12, 1873, among which is the following:
"Claims for allowance on account of special tax stamps will not
be considered in cases where any business has been done thereunder,
except in the case of a brewer who has paid a special tax stamp of
$100, but who, at the close of the special tax year, is found to
have produced less than five hundred barrels. In such case, the
excess paid by him, less five percent, will be allowed."
Int.Rev.Circular, No. 109.
It would seem to be clear from this statement that the allowance
of a claim by the Commissioner of Internal Revenue, under the
authority of these statutes and Treasury regulations, raised an
implied promise on the part of the United States to pay any amount
that might actually be due the claimant under such circumstances,
and certainly such a claim would be "founded upon a law of
Congress."
We know it was held in
Nichols v. United
States, 7 Wall. 122, that the Court of Claims did
not have jurisdiction of a suit to recover back duties upon
imported goods illegally assessed, and that the same rule applied
to internal revenue eases where the decision of the commissioner
upon appeal was adverse to the claimant. In such cases, a special
remedy is given by suit against the collector, if the necessary
steps are taken to secure the right to sue at all. The reason is,
that as the liability is one created by statute, the special remedy
provided by the same statute is exclusive.
But here the case is different. The claim has been presented to
and allowed by the proper officer. The claimant has pursued the
statutory remedy to the end. He is satisfied with the decision that
has been given, and insists upon the payment which the government
has undertaken to make. No special remedy has been provided for the
enforcement of the payment, and consequently the general laws which
govern the Court of Claims may be resorted to for relief, if any
can be found applicable to such a case. This is upon the principle
that "a liability
Page 96 U. S. 570
created by statute without a remedy may be enforced by an
appropriate common law action."
Pollard
v. Bailey, 20 Wall. 527. And as against the
government there are no common law actions; any appropriate action
within the scope of the jurisdiction of the Court of Claims may be
resorted to, unless specially prohibited. Here the right has been
given, and a liability founded upon a law of Congress created. Of
such liabilities the Court of Claims has jurisdiction, and no other
remedy has been provided.
Do the facts found warrant the judgment?
These facts are, in effect, that the claimant, who was a brewer,
on the third day of May, 1873, paid to the internal revenue
collector of his district $100, as the special tax on his business
for one year, from May 1, 1873, to April 30, 1874, for which a
special tax stamp was given him by the collector; that, May 6,
1874, he applied to the Commissioner of Internal Revenue to refund
$50 of this amount, as he had only manufactured three hundred and
fifty barrels during the year; that evidence in support of this
application was submitted, and the commissioner on the 5th of July,
1874, certified to the Comptroller of the Treasury that the
claimant had returned to him an internal revenue special tax stamp
of the face value of $50, for which he was entitled to have
refunded him $47.50; and that on the same day the commissioner
notified the claimant of the allowance of his claim to that amount,
for which a certificate had been lodged with the Comptroller of the
Treasury.
It is now insisted that the finding of an allowance by the
commissioner is not enough, and that the court should have gone
behind the allowance, and found the facts in respect to the
original claim. Such, we think, is not the law. To say the least,
the allowance of a claim under this statute is equivalent to an
account stated between private parties, which is good until
impeached for fraud or mistake. It is not the allowance of an
ordinary claim against the government, by an ordinary accounting
officer, but the adjudication by the first tribunal to which the
matter must by law be submitted. Until so submitted, and until so
adjudicated, there is not even a
prima facie liability of
the government, but when submitted, and when
Page 96 U. S. 571
allowed upon the adjudication, the liability is complete until
in some appropriate form it is impeached. When, therefore, the
court found the adjudication against the government, without
impeachment, the liability to pay was established. We do not decide
that in the Court of Claims the adjudication of the commissioner
may not be impeached, but we do decide that, until impeached, it is
binding, and that the affirmative of the impeachment is upon the
government.
It is said, however, that the finding does not show that the
government has refused payment of the allowance. In
Clyde v. United
States, 13 Wall. 38, we held that a rule of the
Court of Claims was void which required
"that where the case was such as is ordinarily settled in an
executive department, the petition should show that application for
its allowance had been made to that department, and without
success, and the decision thereon,"
but that case was not one in which the action was based upon the
decision of the department. Here it is. The foundation of the suit
is the refusal of the government to pay a claim allowed by an
officer authorized to repay moneys overpaid under certain
circumstances, but who can only make payment through the proper
disbursing agents of the Treasury. The officer has done all he can
do. He has made the allowance, and certified it to the Comptroller
of the Treasury for payment. It does not appear in express terms
that those charged with the duty of actually making the payment are
in any respect at fault. For all that is shown in the finding, if
the claimant had called upon the treasurer, he would have received
his draft on the Treasury, and, when that was properly presented,
the money. The case is not materially different from what it would
have been if he had procured his draft, and sued upon it without
having first presented it for payment. Under such circumstances,
clearly there could have been technically no refusal to pay until
there had been a demand, or something which was an equivalent.
Here, an application for payment was made to a proper officer of
the department. He performed his duty by certifying his allowance,
and sending it forward in the regular course of business through
the department for payment. The adjustment was complete, and, for
all the that appears, nothing more was necessary for the claimant
to do except to call at the Treasury
Page 96 U. S. 572
and get his money. The presumption under such circumstances is
that payment would have been made upon proper demand.
This record, however, does show that the claim was allowed July
3, 1874, while the suit was not commenced until June 25, 1875, and
the trial below evidently proceeded upon the theory that no such
objection to a recovery existed. In the opinion, it is said that
the "Comptroller did not pass the claim, and the allowance made by
the commissioner has never been paid." So too, in other cases where
this is referred to, it is described as one in which
"the Comptroller refused to pass the account, and interposed
objections which, if final, would thwart the action of the
commissioner, and prevent the execution of the provisions of the
regulations."
Boughton's Case, 12 Ct.Cl. 336. And in the argument
here, on behalf of the appellee, it is said
"that the Assistant Attorney General admitted on the trial in
the court below the fact of the refusal of the United States to pay
the allowance made by the commissioner in favor of the
claimant,"
and "that it was on the theory of the case that the defendants
had refused to make payment of the allowance that the court
entertained jurisdiction." Under these circumstances, we think it
clear that this point was conceded below, and that it ought not to
be considered here.
Judgment affirmed.