Logemann v. Stock

• Decision Date: 03 January 1949
• Docket Number: Civ. No. 44-48.
• Citation: 81 F. Supp. 337
• Parties: LOGEMANN v. STOCK.
• Court: U.S. District Court — District of Nebraska

81 F. Supp. 337

LOGEMANN v. STOCK.

Civ. No. 44-48.

United States District Court D. Nebraska, Lincoln Division.

January 3, 1949.

James L. Brown, Asst. U. S. Atty., of Lincoln, Neb., for petitioner.

Merril R. Reller and Gerald W. Davis, both of Lincoln, Neb., for defendant.

DELEHANT, District Judge.

The parties will be identified herein by their respective surnames, in an effort to avoid the confusion which lurks in the variety in their designations here and in the state court.

Stock is an eastern Nebraska farmer. Logemann is a Deputy Collector of Internal Revenue, acting under the appointment and direction of the Collector of Internal Revenue at Omaha, Nebraska.

On August 27, 1948 Stock instituted in the District Court of Lancaster County, Nebraska, an action against Logemann to recover a judgment for $2,500.00 because of alleged misconduct by Logemann, occurring earlier in August, 1948 in the course of his audit and verification of Stock's 1945 income tax return. The petition in that action alleged specifically that Logemann's duties "include auditing and verifying income tax returns filed by taxpayers in the State of Nebraska", and that, prior to August 5, 1948 Logemann "was assigned the duty by his employer of auditing and verifying the 1945 income tax return filed by" Stock. With that inducing background, it further alleges certain conferences between Stock and Logemann in the course of the audit in question and charges that in one or more of those conferences Logemann falsely and maliciously accused Stock of failing to report his correct and entire income and otherwise erroneously making his income tax return for the year in question, and later submitted like representations to his own official superior, and made certain threats to Stock of the assessment of further taxes, and the imposition of penalties, against him if he should refuse to assent to additional assessments of tax proposed by Logemann, all resulting in damage to Stock.

On September 11, 1948 Logemann, proceeding under the general authority of Title 28 U.S.C.A. § 1442(a) (1), and within the procedural requirements of Title 28 U.S.C.A. § 1446, seasonably filed in this court a Petition and a Bond for Removal. The notice required by Title 28 U.S.C.A. § 1446(e) was served personally upon Stock on September 11, 1948 and filed September 21, 1948. The faithful observance of the formal requirements to obtain removal, if the case is removable, is unchallenged.

However, Stock has moved to remand the cause for want of jurisdiction over it in this court, and he supports his motion by argument that the action is not within the reach of Title 28 U.S.C.A. § 1442. The court is unable to proceed to that conclusion.

Title 28 U.S.C.A. § 1442, so far as it is material in this instance, provides that:

"(a) A civil action * * * commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

"(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for * * * the collection of the revenue."

That statute arose out of the historic interference by some of the states, notably South Carolina, with the collection of the customs of the United States, State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648, and was aimed at the attempted local nullification of the national revenue statutes. So, as originally enacted, its protection was limited to civil actions or criminal prosecutions "for or on account of any act done under the revenue laws of the United States, or under colour thereof, or for or on account of any right, authority, or title, set up or claimed by such officer, or other person under any such law of the United States". Act of March 2, 1833, c. 57, Section 3, 4 Statutes at Large, p. 633. Later amendments successively added other designated officials to its protected list, until, by the revision of 1948, the broad language of the text already quoted was substituted for the earlier phraseology of the statute.

Counsel for the respective parties present conflicting positions upon the degree of liberality with which the cited statute should be administered in the retention of jurisdiction by the United States District Courts. The familiar events, threatening the essential power and the very life of the federal government, which evoked the initial legislation have prompted many courts to declare that the statute must be liberally applied to effectuate its purpose. United States v. Bromley, 53 U.S. 88, 12 How. 88, 13 L.Ed. 905; State of Colorado v. Symes, 286 U.S. 510, 52 S.Ct. 635, 76 L.Ed. 1253; Venable v. Richards, 105 U.S. 636, 26 L.Ed. 1196; United States ex rel. Michels v. James, C.C., 26 Fed.Cas. 577, No. 15,464; Warner v. Fowler, C.C., 29 Fed.Cas. 255, No. 17,182; State of North Carolina v. Sullivan, C.C.N.C., 50 F. 593; Ward v. Congress Const. Co., 7 Cir., 99 F. 598; Brann v. McBurnett, D.C.Ark., 29 F.Supp. 188; Potts v. Elliott, D.C.Ky., 61 F.Supp. 378; Yeung v. Territory of Hawaii, 9 Cir., 132 F.2d 374. On the other hand, in Ampey v. Thornton, D.C.Minn., 65 F.Supp. 216, the reasoning supporting liberality of application in certain of those cases was obliquely and tentatively criticised, although it would seem that such criticism was quite unnecessary, if not irrelevant, to the decision of the Ampey case under its facts. Parenthetically, it should be noted, in the...