1. An appeal to the Commissioner of Internal Revenue from an
assessment is only a condition precedent to an action for the
recovery of taxes paid, and not a condition precedent to any other
action where such action is permissible.
2. A collector of taxes of the United States cannot revise or
refuse to enforce an assessment regularly made by the assessor of
his district in the exercise of the latter's jurisdiction. The
duties of a collector in the enforcement of a tax assessed are
purely ministerial. The assessment, duly certified to him, is his
authority to proceed, and constitutes his protection.
3. If an officer or tribunal possess 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 a 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 which the party aggrieved thereby 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.
4. The replication of
de injuria, interposed to a
special plea, justifying the seizure and conviction of property
sued for by one as collector of internal revenue under an
assessment against the plaintiff, duly made by the assessor of the
district and certified to him, puts in issue the material averments
of that plea. It throws upon the defendant the burden of proving so
much of the plea as constitutes a defense to the action.
Page 81 U. S. 614
5. When to a declaration two special pleas are interposed, each
setting up substantially the same defense, and by the replication
to one issue is joined on the merits, and by the replication to the
other an immaterial issue is formed, and upon the trial all the
issues are found for the plaintiff, it is a matter of discretion in
the court whether to arrest the judgment for the verdict on the
immaterial issue and award a repleader, with which this Court will
not interfere.
6. The effect of the replication
de iujuria considered
upon the authorities. However regarded, its sufficiency to put the
material averments of the plea in issue cannot be raised after
verdict.
The 19th section of the act of July 13th, 1886, [
Footnote 1] enacts:
"That no suit shall be maintained in any court
for the
recovery of any tax alleged to have been erroneously or
illegally assessed or collected, until appeal shall have been duly
made to the Commissioner of Internal Revenue, according to the
provisions of law in that regard, and the regulations of the
Secretary of the Treasury established in pursuance thereof, and a
decision of said commissioner be had thereon."
With this statutory provision in force, Hohnbach sued Erskine, a
collector of internal revenue, in an
action of trespass
for the seizure by him, the said collector, and conversion to his
use of certain personal property of the alleged value of $10,000
belonging to him, the plaintiff.
The declaration was in the usual form in such cases, and alleged
that the seizure and conversion were made in May, 1869, at
Milwaukee, in the State of Wisconsin. To this the defendant pleaded
the general issue and two special pleas in which he justified the
acts complained of on the ground that they were done by him as
collector of internal revenue of the First Collection District of
Wisconsin in the enforcement of an assessment chargeable against
the plaintiff, duly made by the assessor of the district, and
certified to him, with an order directing its collection. Both
pleas set up the same defense of justification as collector of
internal revenue,
Page 81 U. S. 615
differing only in the particularity with which the facts of
assessment and distraint and sale of the property were
detailed.
To the first special plea the plaintiff replied
de injuria
sua propria absque tali causa -- that the defendant committed
the several trespasses mentioned in the declaration of his own
wrong, and without the cause alleged by him, and upon this
replication issue was joined.
To the second special plea the plaintiff replied that the tax
assessed, which was upon tobacco sold and materials used in its
manufacture, was never chargeable to him, inasmuch as he did not
manufacture and sell, or remove, within the period mentioned in the
assessment, the tobacco described, or any part thereof, and that he
had paid all the taxes chargeable against him upon the tobacco
manufactured by him, and sold or removed for consumption or use
during that period. To this replication the defendant rejoined that
the plaintiff had not paid the sum assessed against him, as stated
in the plea, for the tobacco thus manufactured by him and sold or
removed for consumption. The conclusion was to the country, and the
plaintiff joined in the issue.
On the trial which followed the jury found the several issues in
favor of the plaintiff, and assessed his damages accordingly.
The defendant then moved in arrest of judgment on several
grounds. They amounted, however, substantially to this -- that the
second special plea set forth a good defense to the action,
inasmuch as it showed that the seizure and conversion complained of
were made by the defendant as collector of internal revenue in the
enforcement of a tax regularly and legally assessed against the
plaintiff; and that the replication did not answer this plea
because it did not allege that the plaintiff had taken an appeal
from the assessment to the Commissioner of Internal Revenue,
without which the action was not maintainable. The motion was
denied, and judgment was entered upon the verdict for the
plaintiff. To review this judgment, the defendant brought the case
here on writ of error.
Page 81 U. S. 616
MR. JUSTICE FIELD delivered the opinion of the Court.
We do not think that the omission, in the replication, to allege
that the plaintiff had taken an appeal from the assessment to the
Commissioner of Internal Revenue affected the character of the
replication, or that the insertion of the allegation would have
aided it. The defect of the replication consisted in the fact that
it raised an immaterial issue. An appeal to the Commissioner of
Internal Revenue from an assessment is only a condition precedent
to an action for the recovery of taxes paid. It is not a condition
precedent to any other action where such action is permissible.
The collector could not revise nor refuse to enforce the
assessment regularly made by the assessor in the exercise of the
latter's jurisdiction. The duties of the collector in the
enforcement of the tax assessed were purely ministerial. The
assessment, duly certified to him, 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.
Whatever may have been the conflict at one time, in the adjudged
cases, as to the extent of protection afforded to ministerial
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 particular facts, and render judgment thereon,
it is well settled now, that if the officer or tribunal possess
jurisdiction over the subject matter upon which judgment is passed,
with power to issue an order of 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 which the party
aggrieved thereby may institute against him, although
Page 81 U. S. 617
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. [
Footnote 2]
Now, the replication to the second special plea did not deny the
jurisdiction of the assessor to make an assessment under the
circumstances alleged in the plea; nor that the assessment made by
him was duly certified to the defendant as collector of the
district, with an order to proceed to enforce it, nor that the
property assessed was subject to taxation; but only averred that
the assessment made was not chargeable against the plaintiff,
because he had not manufactured and sold or removed the property
assessed within the period mentioned, and had paid all the taxes
chargeable against him upon such property -- an averment which, if
true, would only have shown that the assessor had erred in his
judgment in making the assessment, and could not have controlled
the action of the collector, nor have justified him in suspending
the enforcement of the tax. A judgment debtor might as well
complain of the enforcement of an execution by a sheriff on the
ground that the court erred in finding that he was indebted to the
plaintiff and so giving judgment against him.
An immaterial issue having been thus tendered the proper course
for the defendant to pursue was to demur to the replication, and
thus force the plaintiff to join issue on the merits of the defense
pleaded, or to allow judgment to pass against him. Had the issue
here made been the only one in the case tendered to the defense
pleaded by the second special plea, the defendant, not being able
to set up that defense under the general issue, would have been
entitled after verdict to an arrest of judgment and an award of
repleader. [
Footnote 3] But
such was not the fact here. The first special plea set up the same
defense as the second. In both of the special pleas, the defendant
justified the seizure and conversion of
Page 81 U. S. 618
the property, described in the declaration, as collector of
internal revenue, under an assessment against the plaintiff duly
made by the assessor of the district and certified to him. The
difference in the language used in the two pleas, and in the
particularity with which the assessment of the tax and the
distraint and sale of the property were set forth, did not change
the substantial identity of the defense made.
Now the replication of
de injuria, which was interposed
to the first special plea, put in issue the material averments of
that plea. It threw upon the defendant the burden of proving so
much of the plea as constituted a defense to the action. As no
error in the ruling of the court on the trial is presented, we are
forced to presume that the defendant was afforded every opportunity
allowed by law to establish the facts averred by him. To arrest
judgment upon the verdict rendered on this issue because an
immaterial issue was formed upon a replication to another plea
setting up the same defense, and award a repleader, would be in
effect to allow the same matter to be twice tried. Such being the
case, the granting or refusing the motion rested in the discretion
of the court below, with which this Court will not interfere.
We are aware of numerous decisions in this country to the effect
that the replication
de injuria is only a good replication
where the plea sets up matter of excuse, and is not good where the
plea sets up matter of justification, though the justification be
under process from a court not of record, or rest upon some
authority of law other than a judgment of a court. Such are the
decisions of the supreme court of New York, [
Footnote 4] and they proceed upon the supposed
doctrine of the resolutions in
Crogate's Case. [
Footnote 5] But an examination of that
case will show that the doctrine is not supported to the extent
laid down in the New York decisions. The third resolution in
Crogate's Case does state that a replication
de
injuria is bad where the justification is under authority
Page 81 U. S. 619
of law, but, as observed by Mr. Justice Patteson in
Selby v.
Bardons, [
Footnote 6]
this, if taken to the full extent of the terms used, is
inconsistent with that part of the first resolution which states
that where the plea justifies under proceedings of a court not of
record the replication may be used. In that case, the declaration
was in replevin for goods and chattels. The avowry of the defendant
stated that the plaintiff was an inhabitant and occupier of a
tenement in a certain parish; that a rate for the relief of the
poor of the parish was duly made and published in which the
plaintiff was rated at seven pounds; that he had notice of the rate
and was required by the defendant, as collector, to pay the same,
which he refused; that he was then summoned before two justices to
show cause why he refused; that he appeared, but showing no cause,
the justices issued a warrant to the defendant to distrain the
plaintiff's goods and chattels under which he, and the other
defendant as his bailiff, took the goods and chattels mentioned in
the declaration. To this avowry the plaintiff filed the plea of
de injuria, to which a special demurrer was interposed
assigning for cause that the plea offered to put in issue several
distinct matters, and was pleaded as if the avowry consisted wholly
in excuse of the taking and detaining and not as a justification
and claim of right. The court considered at length both causes, and
held that the plea was good. On error to the Court of Exchequer
Chamber, this ruling was affirmed, [
Footnote 7] and the decision, it is believed, has never
been departed from in the English courts. The plea
de
injuria in this case to the avowry stands like the replication
de injuria to a plea setting up similar matter in an
action of trespass. There is no distinction in the effect of the
plea in one case and the replication in the other. This was held by
the King's Bench in the case cited, and by the Court of Exchequer
Chamber on error.
This case is authority for the sufficiency of the replication to
the first special plea. Other cases might be cited to the same
purport. The decisions in England on this point will
Page 81 U. S. 620
be found collected in a learned note to
Crogate's Case
by Mr. Smith in his Leading Cases, and the decisions in this
country will be found collected in an equally learned note by the
American editors of that work.
But aside from the considerations mentioned, however the
replication might be regarded in some courts on special demurrer,
its defective character, if at all defective, was cured by the
verdict. The objection to its sufficiency to put the averments of
the plea in issue cannot be raised after verdict. [
Footnote 8]
Judgment affirmed.
[
Footnote 1]
14 Stat. at Large 152.
[
Footnote 2]
Savacool v. Boughton, 5 Wendell 171;
Earl v.
Camp, 16
id. 563;
Chegaray v. Jenkins, 5
N.Y. 376;
Sprague v. Birchard, 1 Wis. 457.
[
Footnote 3]
Gould on Pleading, chap. x, § 29.
[
Footnote 4]
Griswold v. Sedgwick, 1 Wendell 131;
Coburn v.
Hopkins, 4
id. 577.
[
Footnote 5]
8 Coke 132.
[
Footnote 6]
3 Barnewall & Adolphus 2.
[
Footnote 7]
3 Tyrwhitt 430.
[
Footnote 8]
See Lytle v. Lee & Ruggles, 5 Johnson 112, and the
cases there cited.
