James Patton v. Maggie Brady

Citation184 U.S. 608,22 S.Ct. 493,46 L.Ed. 713
Decision Date01 February 1900
Docket NumberNo. 16,16
PartiesJAMES D. PATTON, Trading as J. D. Patton & Co., Plff in Err. , v. MAGGIE A. BRADY, Executrix of J. D. Brady, Collector of Internal Revenue for the Second District of Virginia
CourtUnited States Supreme Court

184 U.S. 608
22 S.Ct. 493
46 L.Ed. 713
JAMES D. PATTON, Trading as J. D. Patton & Co., Plff in Err.,


MAGGIE A. BRADY, Executrix of J. D. Brady, Collector of Internal Revenue for the Second District of Virginia.

No. 16.
Submitted February 1, 1900.
Ordered for Oral Argument May 28, 1900.
Argued December 6, 1901.
Decided March 17, 1902.

Page 609

On July 14, 1899, plaintiff in error, as plaintiff below, commenced this action in the circuit court for the eastern district of Virginia against J. D. Brady, collector of internal revenue for the second district of Virginia. In his declaration he alleged that in May, 1898, he had purchased in the open market and in the regular course of business 102,076 pounds of manufactured tobacco; that all the requisites of the internal revenue laws of the United States then existing had been fully complied with, stamps placed upon the boxes containing the tobacco, and regularly and duly canceled subsequent to April 14, 1898, and the tobacco removed from the factory; and that when he made his purchase the entire tax due the United States under and by virtue of such laws had been paid. The declaration then proceeded:

'After the act of Congress approved June 13, 1898, entitled 'An Act to Provide Ways and Means to Meet War and Other Expenditures, and for Other Purposes,' had been enacted, the defendant, James D. Brady, who is the collector of internal revenue for the second district of the state of Virginia, in which he and plaintiff reside, and in the month of June, 1898, demanded of plaintiff that he pay the sum of $3,062.28 as an additional tax to be paid upon said tobacco, which he claimed was imposed upon the same by the 2d paragraph of the 3d section of said act. Plaintiff refused to pay the same; whereupon the defendant threatened plaintiff that unless he did

Page 610

pay it he would treat plaintiff as a delinquent, and would seize his property under the provisions of an act of Congress applicable to such case, and would sell the same. Under the coercion of this demand and threat plaintiff paid the sum of $3,062.28 to the defendant, but he did so under protest, and with notice to the defendant that he would sue him to recover it back.

'Plaintiff avers that said § 3 of said act of June 13, 1898, imposing said additional tax upon his tobacco, is repugnant to the Constitution of the United States, and said acts of Congress authorizing the defendant to seize plaintiff's property and sell it if he did not pay the same are also repugnant to said Constitution, and that his suit therefore arises under the Constitution of the United States.

'On the 17th day of June, 1899, the plaintiff set out all of the foregoing facts in an application to the Commissioner of Internal Revenue of the United States, according to the laws in that regard and the regulations of the Secretary of the United States, established in pursuance thereof, and he appealed to said Commissioner of Internal Revenue to have said money so unlawfully extorted from him returned to him; but said Commissioner of Internal Revenue on the ___ day of July, 1899, rejected said appeal and refused to direct said money to be returned to plaintiff. The said Commissioner did not reject said appeal because of any informality in the manner in which it was made, but because he was of opinion that said act of Congress imposing said tax was consistent with the Constitution of the United States, and that said tax was lawfully collected; by all of which acts and doings the plaintiff is damaged $6,000, and therefore he sues.'

Summons having been served, the case came on for hearing on the motion of the United States attorney for the district to dismiss the action on the ground that the act of Congress set forth in the declaration was not repugnant to the Constitution of the United States, which motion was sustained, and on September 22, 1899, the action was dismissed. To review such ruling plaintiff sued out this writ of error.

Messrs. William L. Royall, John W. Daniel, and Fred Harper for plaintiff in error.

Page 611

Assistant Attorneys General James E. Boyd and James M. Beck, and Solicitor General Richards for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

The first contention of the defendant is that the circuit court did not have jurisdiction. The parties, it is true, were both citizens of Virginia, but the question presented in the declaration was the constitutionality of an act of Congress. The plaintiff's right of recovery was rested upon the unconstitutionality of the act, and that was the vital question. The circuit courts of the United States 'have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity . . . arising under the Constitution or laws of the United States.' 25 Stat. at L. 433, chap. 866.

That a case arises under the Constitution of the United States when the right of either party depends on the validity of an act of Congress is clear. It was said by Chief Justice Marshall that 'a case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either' (Cohen v. Virginia, 6 Wheat, 264, 379, 5 L. ed. 257, 285); and again, when 'the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, and sustained by the opposite construction.' Osborn v. Bank of United States, 9 Wheat. 738, 822, 6 L. ed. 204, 224. See also Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 201, 24 L. ed. 656, 658; Tennessee v. Davis, 100 U. S. 257, 25 L. ed. 648; White v. Greenhow, 114 U. S. 307, 29 L. ed. 199, 5 Sup. Ct. Rep. 923, 962; New Orleans, M. & T. R. Co. v. Mississippi, 102 U. S. 135, 139, 26 L. ed. 96, 98. In the latter case the following statement of the controversy was given in the opinion: 'From this analysis of the pleadings, and of the petition for removal, it will be observed that the contention of the state rests in part upon the ground that the construction and maintenance of the bridge in question is in violation of the condition on which Mississippi was admitted into the Union, and inconsistent with the engagement, on the

Page 612

part of the United States, as expressed in the act of March 1, 1817. On the other hand, the railroad company, in support of its right to construct and maintain the present bridge across Pearl river, invokes the protection of the act of Congress passed March 2, 1868.' And upon these facts it was held that the case was rightfully removed to the Federal court. Within these decisions obviously the circuit court had jurisdiction.

A second contention of the defendant is this: After the case had been brought to this court the defendant, J. D. Brady, died. Whereupon the plaintiff took steps to revive the action, and on November 4, 1901, Maggie A. Brady, the executrix of the deceased, was substituted as party defendant. Now it is insisted that the action was one based upon a tort, and, as such, abated by reason of the death of defendant.

Congress has not, speaking generally, attempted to prescribe the causes which survive the death of either party. Section 955, Rev. Stat., provides that——

'When either of the parties, whether plaintiff, or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment.'

This does not define the causes which survive. In the absence of some special legislation the question in each case must be settled by the common law or the law of the state in which the cause of action arose. United States v. Daniel, 6 How. 11, 12 L. ed. 323; Henshaw v. Miller, 17 How. 212, 15 L. ed. 222; Schreiber v. Sharpless, 110 U. S. 76, sub nom. Ex parte Schreiber, 28 L. ed. 65, 3 Sup. Ct. Rep. 423; Martin v. Baltimore & O. R. Co. 151 U. S. 673, sub nom. Gerling v. Baltimore & O. R. Co. 38 L. ed. 311, 14 Sup. Ct. Rep. 533; Baltimore & O. R. Co. v. Joy, 173 U. S. 226, 229, 43 L. ed. 677, 678, 19 Sup. Ct. Rep. 387. It matters not whether we consider the common law or the statute law of Virginia as controlling. By either the cause of action stated in the complaint survived the death of defendant.

Section 2655 of the Code of Virginia (Code of 1887) reads as follows:

'An action of trespass or trespass on the case may be maintained by or against a personal representative for the taking or

Page 613

carrying away any goods, or for the waste or destruction of or damage to any estate of or by his decedent.'

The term 'goods' is broad enough to include money, and as used in this statute must be held to be so inclusive, for it would be strange that a cause of action for taking and carrying away a thousand pieces of silver should survive the death of the defendant, while a like action for taking and carrying away a thousand dollars in money should not. In The Elizabeth & Jane, 2 Mason, 407, 408, Fed. Cas. No. 4,355, Mr. Justice Story said: 'It cannot be doubted that money, and, of course, foreign coin, falls within the description of 'goods' at common law.' But more than that, the estate of plaintiff was reduced to the amount of $3,000 and over by the action of decedent, and such reduction was a direct damage and comes within the rule laid down by the supreme court of appeals in Mumpower v. Bristol, 94 Va. 737, 739, 27 S. E. 581, 582, in which the court held that: 'The damages allowed to be recovered by or against a personal representative by § 2655 of the Code are direct damages to property, and not those which are merely consequent upon a wrongful act to the person only,' and in which the presiding judge of the court, delivering the...

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