246 F. 1013 | E.D. Pa. | 1917
This cause is one of 13; the others being entitled Nos. 3982, 3984, 3986, 3988, 3990, 3992, 3994, 3996, 3998, 4000, 4002, and 4004 of the same sessions all of which can be disposed of by one ruling. There are in substance two defenses interposed between the plaintiff’s demand and judgment. One goes to the merits of the demand, and the other to the legal merits of plaintiff’s
The previous experience of the cases in this court disposes of the first defense. The real question involved in the second is whether the plaintiff has lost its remedy through lapse of time — whether time operates to affect the remedy as one of the conditions upon which it is given, or operates through and by a statute of limitations. The distinction indicated, though important enough in itself and carrying at times important practical consequences, does not seem to be of practical value in the instant case.
A few general observations may clarify our view of the broad questions involved and thus enable us to get a clearer view of the narrower questions with which we are concerned. One of the propositions advanced by counsel for the United States is undoubtedly sound, and, as was to be expected, is admitted in all its fullness by counsel for defendant. The proposition is that the United States cannot be sued, except as it may consent, and the right to sue, when given, must be exercised in compliance with the terms and conditions of that consent. This immunity belongs to every sovereign, and is an obviously necessary principle of all governments. The lesser power cannot move the greater, and as all the power which the courts possess flows from the supreme governing power, it follows that the supreme power cannot be moved unless it moves of' its own willingness. This immunity, however, flowing as it does from the attribute of sovereignty, does not belong to the individual taxgatherer. Whatever power he has flows from the law, and, if he asserts to the damage of any one a power which the law has not conferred upon him, he does a wrongful act, and the damage thereby dime to another becomes a legal injury, for which the injured person has a legal right of redress against the wrongdoer. The right thus possessed is not conferred by any statute, but is a common-law right, which exists until it has been taken away or limited by statute. It is to be expected that, in the very practical art and business of governing people, individuals may exercise authority in the execution of laws which they honestly believe -they possess, and may be in the performance of what they believe to be their duty in asserting a- power which it may afterwards be found they did not lawfully possess. If they are made personally responsible for the consequences of acts done in the performance of a sense fof duty, although a mistaken one, a moral claim upon the sovereign for indemnity at once arises and would be recognized. A like obligation to return moneys to which the sovereign had nlo just claim would also be recognized.
Recurring again to actions against the United States, the right to which did not belong to the plaintiff, except as given by statute, such actions may be brought and prosecuted in accordance with the conditions of the grant of the right,'and with respect to the time within which they may be brought, the United States may, if Congress so disposes, be less indulgent to itself than to other defendants.
This directs us to go at once to the statutes which are quoted as giriug this privilege. Section 24 (20) of the Judicial Code (Comp. St. 1916, § 991) is one. It provides a method for the assertion of claims by suit against the United States, so far as concerns the District Courts, by conferring upon these courts, concurrently with the Court of Claims, jurisdiction of all claims against the United States (with some exceptions) which could be asserted by action if the United States were suable. It specifically prescribes no system of process to be followed by the District Courts, but the concurrence of jurisdiction with that of the Court of Claims would imply a sanction of like process, and the limitation provision in the statute carries a direct implication of the sanction of the writ of summons process. A condition of the situation, with respect to which Congress was legislating, pre-existent to the statute, may help us in construing it. The District Courts had already been constituted and had established methods of procedure and pi*o-
Section 156 of the Judicial Code (Comp. St. 1916, § 1147) indicates the filing of a petition by limiting the time within which it must be filed. The limitation provision o.f the twentieth section indicates the commencement of an action and is consistent with the thought of the issuance of a writ of summons. As the time limitation is the same in each of these sections, the coincidence suggests these different modes of procedure and provides a limitation in each case, or, in other words, in effect provides that, if the action permitted to be brought is brought through and by the writ of summons process, the closing of time upon the action is marked by tire impetration of the writ, but, if the petition procedure is followed, then tire date of the filing of the petition marks the time limit. In still other words, there is standing ground for the construction that if the claim is prosecuted in the Court of Claims, the filing of the petition determines the question of whether the proceeding has been begun in time, but if an action be'brought in the District Court by writ of summons, the question is to be determined by the date of the writ. Certain sections of the Tucker Act (Act March 3, 1887, c. 359, 24 Stat. 506 [Comp. St. 1916, §§ 1574-1578]), which remain unrepealed, are consistent with this view, inasmuch as they indicate (section 4) that the courts may adopt any appropriate form of procedure; (section 5) that certain proceedings shall be by petition, and (section 6) how the petition shall be served; (section 7) prescribing the duties of the courts; and (section 10) for the taking of .appeals by the United States.
Sections 20 and 156 of the Judicial Code each give six years’ time within which plaintiffs may assert their claims by legal process. Judged by these sections, tire present actions were brought in time. There are, however, other statutes limiting the timé within which suits may be brought against the United States. This other provision is expressed in R. S. § 3227 (Comp. St. 1916, § 5950), which prescribes that no suit shall be maintained to recover payment of taxes collected without authority of law unless brought “within two years next after the cause of action accrued.” Applying this provision to the instant cases, we find it has been complied with by the plaintiffs in each case if the issuance of a writ is a suit brought within the meaning of the Revised Statutes, but has not been complied with if the statements of claim are by this statute required to be filed within the two years.
It is with something like a feeling of regret with which we reach a judgment which denies at this time a source of revenue to the United States. The exigencies of the conflict in which our people are engaged give the sanction of duty to an attitude of the closest scrutiny of all claims against the United States and of all claims to exemption from the common duty of service; but it would not justify the denial of a legal right, or even the entertaining of any feeling of regret in according that right, when once found to exist, nor does the assertion of such a right afford a basis for any just criticism of a litigant to whom such right belongs.
We are unable to get our mind in accord with the thought upon which this defense rests. Our view is that jurisdiction is given to the District Courts to determine the justness of claims against the United States, and that for all the purposes of procedure the United States is to be regarded as is any other defendant. It cannot, of course, be made a defendant without its consent; but, when that consent is once given, the merits of the claim for which the action is permitted to be brought are to be passed upon and determined as if the claim were made against any other defendant. Had the actions as brought been brought against a citizen, the action would have been found to have been brought in time, and the same finding must be made against the United States as a defendant. The ruling is not that a distinction could not have been made in favor of the United States, such as that Tor which counsel for the United States contends, but it is that no such distinction has been declared.
It may not be out of place to make this additional statement with respect to the attitude and its effect of the United States district attorney and other counsel representing the United States toward the previous and present attempts of the plaintiffs to enforce the respective claims. The conduct of any defendant who throws procedure obstacles in the way of the plaintiff, instead of defending against the substantial merits of the complaint, is always deemed by the plaintiff to be unr gracious and felt to be exasperating. Such a defense, however, it is the right of the defendant to interpose, and no law officer of the United States can, or, in this instance, has attempted to, do anything which could or has prejudiced this right in any degree. We state the situation thus broadly, as we do not understand the service of the writs to be in question, assuming the suits to'have been properly instituted by the issuance of writs of summons, instead of by petition.
The request of the plaintiff for a finding in its favor is granted, and judgment in this case is accordingly rendered in favor of the plaintiff and against the United States for the sum of $553.61 as requested.