7 F.2d 139 | N.D. Ohio | 1925
Plaintiff has filed herein on March 6, 1925, a motion for further relief in collection of an alleged balance unpaid on judgment heretofore rendered. The action originally was one to recover back income tax paid under protest, alleged to have been .unlawfully assessed. On March 31, 1922, judgment was rendered in plaintiff’s favor for $8,126.43, which sum included interest previously accruing on the payments as made. A certificate of probable cause was applied for and issued at the time this judgment was rendered. An appeal was prosecuted to the Circuit Court of Appeals, resulting in an affirmance; and on a writ of certiorari the United States Supreme Court took jurisdiction and affirmed the judgment of the lower courts. See Weiss v. Stearn, 265 U. S. 242, 44 S. Ct. 490, 68 L. Ed. 1001, 33 A. L. R. 520. Upon coming down of the mandate, judgment was entered thereon in this court for said sum of $8,126.43, and the costs in
Upon application made in conformity to the regulations of the Treasury Department and the Commissioner of Internal Revenue, the judgment and costs as entered, with interest to July 14, 1924, was paid. It is plaintiff’s contention that he was entitled to interest until date of payment. It is the contention of the district attorney and solicitor for the Commissioner of Internal Revenue, conducting the defense, that plaintiff is not entitled to interest except to July 14, 1924, the date of the final judgment, which, it is said, accords with the rule settled and established in Schell v. Cochran, 107 U. S. 625, 2 S. Ct. 827, 27 L. Ed. 543.
Plaintiff by his motion' asks, first, an order requiring the proper officials of the United States Treasury to allow and pay the sum of $307.44, the amount of interest accruing from July 14,1924, to March 3,1925; or, second, in the alternative, that execution be awarded against the defendant personally for said unpaid interest. Elaborate briefs have been filed. Due consideration has been given to the arguments advanced and to the authorities cited. My conclusions will be stated, for information of counsel, without elaboration.
Obviously, the first branch of the motion is not within the jurisdiction of this court. The officials against whom the order is asked are not parties to this ease, and are not within the reach of its process. The relief sought by the second branch of the motion is expressly prohibited by statute. See R. S. § 989 (U. S. Comp. Stats. 1916, § 1635). After, judgment rendered against a collector, as was defendant, for recovery of money exacted by or paid to him, and by him paid into the Treasury in performance of his official duty, the court may certify that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government. When this certificate is applied for and made, the statute forbids the issue of execution on the judgment against the collector, and requires the amount so recovered to be paid out of the proper appropriation from the Treasury. This section is in that chapter of the Revised Statutes regulating execution upon judgments. The authorities seem to be uniform that no. execution may issue after this certificate is allowed. See Smietanka v. Indiana Steel Co., 257 U. S. 1, 5, 42 S. Ct. 1, 66 L. Ed. 99; Sage v. United States, 250 U. S. 33, 37, 39 S. Ct. 415, 63 L. Ed. 828; Schell v. Cochran, 107 U. S. 625, 2 S. Ct. 827, 27 L. Ed. 543; United States v. Sherman, 98 U. S. 565, 25 L. Ed. 235; White v. Arthur (C. C.) 10 F. 80, 83; Nichols v. Gaston (1 C. C. A.) 281 F. 67, 70.
The constitutional powers of Congress so to provide in matters pertaining to official acts under color of authority, particularly in matters pertaining to the collection and disbursement of taxes and revenue, do not seem to me to be open to question. It rests upon the same basis as the right of Congress to prohibit an action against a collector in such matters until after application has been made to the Commissioner of Internal Revenue for a refund of the money so collected, or its power to prohibit the granting of an injunction to restrain the collection of a tax unlawfully levied or assessed and remitting the taxpayer to an action at law to recover the same back after having first applied in the prescribed manner for a refund. The law in this respect appears also to be beyond dispute. In addition to the eases above cited, see Cary v. Curtis, 3 How. 236, 11 L. Ed. 576; Curtis v. Fiedler, 2 Black, 461, 479, 17 L. Ed. 273; Collector v. Hubbard, 12 Wall. 1, 20 L. Ed. 272.
These views require a denial of plaintiff’s application in its entirety. Any opinion expressed as to plaintiff’s right to interest between date of final judgment and actual payment can be only a dictum, but I deem it my duty to add that settlement was made with the plaintiff in accordance with what appears to be the settled practice of the ae- ' counting and disbursing officers of the United States, and in accordance with whát seems to be the settled law. See United States v. Sherman, 98 U.S. 567, 568, 25 L. Ed. 235; Schell v. Cochran, 107 U. S. 625, 2 S. Ct. 827, 27 L. Ed. 543; White v. Arthur (C. C.) 10 F. 80, 83; Angarica v. Bayard, 127 U. S. 251, 260, 8 S. Ct. 1156, 32 L. Ed. 159; United States v. North Carolina, 136 U. S. 211, 216, 10 S. Ct. 920, 34 L. Ed. 336.
Plaintiff’s motion will be denied. An exception may be noted.
