Where an applicant files with the District Court of Alaska a
petition for a license for vessels and salmon canneries under
section 460 of the act of 1899 providing a criminal code for
Alaska, 30 Stat. 1263, 1336, and with it a protest against being
required to take out or pay for such license on various grounds
stated therein, to which petition and protest the clerk of the
district court is not made a party -- although the papers may have
been served on the district attorney -- and the district court
thereafter makes an order granting the license, stating therein
that, so far as the protestant seeks relief against the payment of
the licenses, "the same is overruled, denied and ignored," an
appeal to this Court will not lie, as there is no action, suit, or
case, within the constitutional provision (Article III, section 2)
in which was entered a final judgment or decree such as entitled
the petitioner to appeal to this Court.
Section 460 of the Act of March 3, 1899, 30 Stat. 1253, 1336,
entitled "An Act to Define and Punish Crimes in the District of
Alaska, and to Provide a Code of Criminal Procedure for Said
District," reads:
Page 187 U. S. 448
"That any person or persons, corporation or company,
prosecuting, or attempting to prosecute, any of the following lines
of business within the district of Alaska shall first apply for and
obtain license so to do from a district court, or a subdivision
thereof in said district, and pay for said license for the
respective lines of business and trade as follows, to-wit:"
Then follows a list of forty-two callings and occupations, among
which, applicable to the present case, are the following:
"Fisheries: Salmon canneries, four cents per case; salmon
salteries, ten cents per barrel; fish-oil works, ten cents per
barrel; fertilizer works, twenty cents per ton."
"
* * * *"
"Ships and shipping: ocean and coastwise vessels doing local
business for hire plying in Alaskan waters, one dollar per ton per
annum on net tonnage, custom-house measurement of each vessel."
Section 461 makes it a misdemeanor to engage in any of the
occupations referred to without first obtaining a license. Section
463 reads:
"That the licenses provided for in this act shall be issued by
the clerk of the district court or any subdivision thereof, in
compliance with the order of the court or judge thereof duly made
and entered, and the clerk of the court shall keep a full record of
all applications for license, and of all recommendations for and
remonstrances against the granting of licenses and of the action of
the court thereon. The clerk of the court shall be entitled to
receive from each applicant for a license a fee of five dollars,
and no other or additional compensation shall be paid such clerk
for his services in connection with such license or the issue
thereof:
And provided, That the clerk of said court and
each division thereof shall give bond or bonds in such amount as
the Secretary of the Treasury may require, and in such form as the
Attorney General may approve, and all moneys received for licenses
by him or them under this act shall be covered into the Treasury of
the United States, under such rules and regulations as the
Secretary of the Treasury may prescribe."
On July 6, 1899, the Pacific Steam Whaling Company filed
Page 187 U. S. 449
in the District Court of the United States for the District of
Alaska a petition entitled:
"In the Matter of the Application of the Pacific Steam Whaling
Company for a license for the steamship
Wolcott, the
steamship
Excelsior, the steamship
Newport, and
the steamer
Golden Gate, and canneries, and protest
thereon."
It alleged that the petitioner was the owner of the steamships
Wolcott, Excelsior Newport, and
Golden Gate,
engaged in doing a local business for hire in Alaskan waters, and
was also engaged in the business of carrying on salmon canneries at
certain named points in the district. It denied that it was subject
to any license for the prosecution of either business,
notwithstanding the provisions of the statute referred to; that, in
view of the stringent penalties provided in that statute for
carrying on business without the required license, it made the
following protest: that the steamships were taxed as its property
in the port of San Francisco, California, of which state the
petitioner was a corporation, and was therefore not subject to a
license tax in the district of Alaska; that a license fee at the
rate of $1 per ton, together with the tax charged in California
against the petitioner, made a double tax, and was unreasonable,
exorbitant, oppressive, and amounted to the taking of petitioner's
property without due process of law; that the title of the act
under which this license section was found had no reference to the
granting of a license for the prosecution of a lawful business, and
the provisions of the act, so far as they purport to require the
payment of license fees, are vague, unintelligible, and doubtful,
so that it cannot be reasonably inferred that Congress intended to
require their payment, and that sections 460 and 461 of the act
were contrary to the provisions of sections 8 and 9 of Article I of
the Constitution of the United States, and therefore null and void.
The prayer of the petitioner was as follows:
"1. That the said court first try and determine the matter as to
whether or not it is necessary for the said petitioner to pay into
court any license or sum of money whatsoever as provided under said
act."
"2. That if said court shall determine that your petitioner,
Page 187 U. S. 450
with respect to said steamships
Wolcott, Excelsior,
Newport, and
Golden Gate, should first pay the said
license fee required under said act in your court, before the trial
and determination of said cause and matters herein set out, that
the same be held by the clerk until the trial and determination of
the matters and facts set forth herein."
"3. That, if the court determines that a license in the meantime
should be granted to the said steamships, or either of them, as
ocean and coastwise vessels, and doing local business for hire,
plying in Alaskan waters, that such license be so granted and said
money so held by the clerk of the court under protest as aforesaid,
subject to the further action of this honorable court."
"This petition was verified by the oath of money so held by the
clerk of the court under protest as aforesaid, subject to the
further action of this honorable court."
This petition was verified by the oath of the attorney of the
petitioner. A copy of the petition was served upon the United
States District Attorney for the District of Alaska, the amount of
the license fees was deposited with the clerk of the court, and a
final order entered on January 2, 1900, which directed the clerk to
issue the license and turn the money deposited into the Treasury of
the United States, adding:
"So far as said protestants seek relief against the payment of a
license on the several businesses therein described, the same is
overruled, denied, and ignored in each case of protest."
An appeal was allowed by the district judge, and a transcript of
the record filed in this Court on August 15, 1900.
MR. JUSTICE BREWER delivered the opinion of the Court.
The proceeding in this case is a novel one, and the first
question
Page 187 U. S. 451
is whether there was any action or suit -- any case within the
constitutional provision, Article III, sec. 2, extending the
judicial power of the United States "to all cases, in law and
equity, arising under this Constitution" -- in which was entered a
final judgment or decree such as entitled the petitioner to an
appeal.
"A case is a suit in law or equity, instituted according to the
regular course of judicial proceedings, and when it involves any
question arising under the Constitution, laws, or treaties of the
United States, it is within the judicial power confided to the
Union."
2 Story on the Constitution, sec. 1646;
Osborn v.
Bank of United States, 9 Wheat. 738,
22 U. S. 819.
Here, a petition was filed, which was in form an application for a
license, with a protest that the petitioner ought not to be
compelled to take one out. The application was granted, and the
petitioner could certainly not appeal from an order granting that
which he asked for. The application, it is true, was coupled with a
protest, but who ever heard of an appeal being sustained from a
protest? There was no suit against the clerk to restrain him from
receiving the license money. He was not made a party, entered no
appearance, and no decree was rendered for or against him.
The power to grant licenses was by the statute vested in the
district court, or a judge thereof. Giving an interpretation to the
petition the most favorable to the petitioner, it was an
application to a tribunal having judicial functions to restrain
itself from the discharge of administrative duties. It is contended
that the nature of the proceeding is not changed by uniting
judicial functions and administrative duties in the same tribunal;
that it is the same as though such functions and duties were
exercised by different bodies or officers, and that it is to be
treated as though it was an application to a judicial tribunal to
restrain a different and administrative officer from the discharge
of administrative duties. Congress, it is said, cannot, by imposing
both sets of duties upon the same tribunal, deprive a party of a
right which he would have if those duties were entrusted to
different officials. If we are justified in giving this
interpretation to the proceeding, we meet the familiar doctrine
that an injunction will not lie to
Page 187 U. S. 452
restrain the collection of a tax on the mere ground of its
illegality.
Dows v.
Chicago, 11 Wall. 108;
Hannewinkle v.
Georgetown, 15 Wall. 547;
State Railroad Tax
Cases, 92 U. S. 575;
Milwaukee v. Koeffler, 116 U. S. 219. And
this is true whether these taxes are local or general, or, if
general, whether internal revenue or direct taxes. Indeed, in
respect to internal revenue taxes section 3224, Revised Statutes,
specifically provides: "No suit for the purpose of restraining the
assessment or collection of any tax shall be maintained in any
court." Something more than mere illegality is necessary to justify
the interference of a court of equity. But if does not appear that
the tax, if unpaid, would cast a cloud upon the title to any real
estate, or work irreparable injury. While it may be that the
failure to pay the tax would expose the petitioner to a
multiplicity of prosecutions for misdemeanor, yet neither the
district court nor the judge nor the clerk initiates criminal
proceedings, and the district attorney -- the prosecuting officer
-- was not made a party to the suit. True, an order was entered
that he be notified of the pendency of the application, and he
appeared as
amicus curiae. Even had he been made a party,
would equity entertain a bill to restrain criminal prosecutions?
In re Sawyer, 124 U. S. 200;
Harkrader v. Wadley, 172 U. S. 148;
Fitts v. McGhee, 172 U. S. 516.
It is said that unless this application can be sustained, the
petitioner is without remedy, and that there is no wrong without a
remedy. While as a general statement this may be true, it does not
follow that it is without exceptions, and especially does it not
follow that such remedy must always be obtainable in the courts.
Indeed, as the government cannot be sued without its consent, it
may happen that the only remedy a party has for a wrong done by one
of its officers is an application to the sense of justice of the
legislative department. Still, we must not be understood as
deciding that the only remedy in this case was an appeal to
Congress. It was held in
Elliott v.
Swartwout, 10 Pet. 137,
35 U. S. 157,
that, under the law as it stood at that time, Congress having made
no special provision, where a collector had charged excessive
duties, and the party paying them, in order to get possession of
his goods, accompanied the
Page 187 U. S. 453
payment by a declaration to the collector that he intended to
sue him to recover back the amount erroneously paid and by a notice
not to pay it over to the Treasury, an action could be maintained
against the collector for the excessive charge. The court said that
the question as to the right to recover must be answered in the
affirmative
"unless the broad proposition can be maintained that no action
will lie against a collector to recover back an excess of duties
paid him, but that recourse must be had to the government for
redress. Such a principle would be carrying an exemption to a
public officer beyond any protection sanctioned by any principles
of law or sound public policy."
See also Cary v.
Curtis, 3 How. 236;
Curtis v.
Fiedler, 2 Black 461. In
Erskine v.
Van Arsdale, 15 Wall. 75, a case of internal
revenue taxes, it was said by Chief Justice Chase (p.
82
U. S. 77):
"Taxes illegally assessed and paid may always be recovered back
if the collector understands from the payer that the taxes are
regarded as illegal, and that suit will be instituted to compel the
refunding of them."
And in
State Railroad Tax Cases, 92 U.
S. 613, Mr. Justice Miller observed:
"The government of the United States has provided, both in the
customs and in the internal revenue, a complete system of
corrective justice in regard to all taxes imposed by the general
government, which in both branches is founded upon the idea of
appeals within the executive departments. If the party aggrieved
does not obtain satisfaction in this mode, there are provisions for
recovering the tax, after it has been paid, by suit against the
collecting officer. But there is no place in this system for an
application to a court of justice until after the money is
paid."
Patton v. Brady, 184 U. S. 614.
By the statute, the clerk is made the collector of the license
taxes, and if this tax was illegal and paid under protest, and
nothing in this or other legislation of Congress restricts such an
action, very likely under these authorities an action would lie
against him for the money thus wrongfully taken from the
petitioner.
It may be also that an action could be maintained in the Court
of Claims, or in one of the circuit or district courts of the
United States, under the Tucker Act to recover directly
Page 187 U. S. 454
from the United States.
Dooley v. United States,
182 U. S. 222. But
we are not called upon to decide what remedy by suit or action, if
any, the petitioner may have. It is enough now to hold, as we do,
that this novel proceeding was not a suit or action in which a
final decree or judgment was rendered from which the petitioner
could take an appeal to this Court.
The order of the district court is
Affirmed.
THE CHIEF JUSTICE took no part in the decision of this case.
