Bank of Iron Gate v. Maggie Brady

• Decision Date: 24 March 1902
• Docket Number: No. 175,175
• Citation: 22 S.Ct. 529,46 L.Ed. 739,184 U.S. 665
• Parties: BANK OF IRON GATE, Plff. in Err. , v. MAGGIE A. BRADY, Executrix of James D. Brady, Deceased
• Court: U.S. Supreme Court

184 U.S. 665

22 S.Ct. 529

46 L.Ed. 739

BANK OF IRON GATE, Plff. in Err.,

v MAGGIE A. BRADY, Executrix of James D. Brady, Deceased.

No. 175.

Argued February 28 and March 3, 1902.

Decided March 24, 1902.

On September 11, 1900, the plaintiff in error as plaintiff commenced this action in the circuit court of the United States for the eastern district of Virginia. The declaration, after stating that both parties were citizens of Virginia, alleged that the plaintiff was a state bank, chartered under the laws of that state, and the defendant a collector of internal revenue of the United States for the second district of Virginia, and that 'between the months of November, 1899, and August, 1900, the plaintiff made, issued, and paid out $700 of its circulating notes payable to the bearer and intended to be used for circulation in ordinary business as currency. The Commissioner of the Revenue of the United States assessed upon these notes a tax of 10 per cent on their face value, equal to $70, which said tax is imposed upon them by the 19th section of the act of Congress of February 8, 1874 [18 Stat. at L. 307, chap. 36], and by § 3412 of the Revised Statutes of the United States; and said defendant, James D. Brady, acting as said collector of internal revenue of the United States, required of plaintiff and demanded of it that it pay said tax; but because said section of said act of February 8, 1875, and said § 3412 of the Revised Statutes of the United States, imposing said tax upon said notes, are repugnant to the Constitution of the United States, the plaintiff refused to pay said unlawful tax; therefore on the ___ day of September, 1900, the defendant forcibly entered upon the premises of the plaintiff by virtue of a distress warrant held by him, authorizing and commanding him to collect said unlawful tax, and levied on and seized a large quantity of plaintiff's personal property, and was in the act of removing and carrying away said property to sell the same when the plaintiff, protesting against the illegality of defendant's act, paid him said tax to procure a release of its said property; that defendant well knew said acts of Congress imposing said tax were repugnant to the Constitution of the United States, and he entered upon plaintiff's premises and levied on and seized its property, well knowing that he was doing unlawful acts, and he did the same maliciously and with the purpose and intention of doing a wanton injury to plaintiff and damaging its credit, so as to do it all the harm possible, and said unlawful act has damaged its credit and done it an irreparable injury; that the act of Congress authorizing the issue of said distress warrant to collect said unlawful tax is repugnant to the Constitution of the United States, and because all of said acts of Congress are repugnant to the Constitution of United States the plaintiff's case arises under the Constitution of the United States; that said unlawful acts of said defendant have demaged the plaintiff $6,000, and therefore it sues.'

A demurrer to this declaration was filed, sustained, and judgment entered for the defendant. Thereupon this writ of error was sued out. After the case had reached this court the defendant, James D. Brady, died, and an application was made to revive in the name of his personal representative.

Mr. William L. Royall for plaintiff in error.

Solicitor General Richards for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

We have recently had before us a similar action against the same party, in which also was presented the question of surviv- orship, Patton v. Brady, 184 U. S. 608, ante, p. 493, 22 Sup. Ct. Rep. 493, and to the opinion filed in that case we refer for a discussion of the question. There the amount of property taken by the defendant as collector was over $3,000; here it is only $70. So far as a recovery of the tax charged to have been illegally levied and collected is sought, it is practically an action in assumpsit for money had and received. Beyond that nothing is suggested but a tort, and a tort by which the estate of the defendant was not increased and the estate of the plaintiff damaged only as an indirect consequence of the alleged wrongful act of the defendant. Such a tort does not, either at common law or by the statutes of Virginia, survive the death of the wrongdoer. See authorities referred to in the opinion cited.

It may be added that it is not easy to see how upon the acts charged against the defendant there could be, even if the tax were declared illegal, any further recovery than the amount of such...