Mill Creek & Minehill Nav. & R. Co. v. United States

• Decision Date: 22 November 1917
• Docket Number: 3980.
• Citation: 246 F. 1013
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: MILL CREEK & MINEHILL NAV. & R. CO. v. UNITED STATES.

246 F. 1013

MILL CREEK & MINEHILL NAV. & R. CO. v. UNITED STATES.

No. 3980.

United States District Court, E.D. Pennsylvania.

November 22, 1917

Wm Clarke Mason, of Philadelphia, Pa., for plaintiff.

Edwin S. Kremp, Asst. U.S. Atty., and Francis Fisher Kane, U.S Atty., both of Philadelphia, Pa.

DICKINSON District Judge.

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 right to redress at law, or, in other words, is a denial of plaintiff's right to the remedy invoked.

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 done 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 of 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 no just claim would also be recognized.

The general situation as thus outlined has brought about two kinds of legislation. The one is embodied in a series of acts by which the United States has expressed its willingness and consent to be made a defendant in defined cases and has subjected itself to the process of the courts. The other kind of legislation has given recognition to the claims of governmental agents to indemnity for the legal consequences of official acts performed in good faith, and provision is made for their reimbursement by the return of any moneys which they as individuals may have been compelled to pay because of what was really an official act, and actions against them are regulated. If the United States gives consent to the issuance of process against it, provided the process issues within a limited time after the claim for redress arose, this limitation is strictly a condition of the remedy given, and not a statute of limitations in bar of the action. The common-law right of action, however, to which we have adverted, being, as already observed, a right belonging to the plaintiff, exists until it is taken away by statute, and may be enforced at any time, unless and until it is barred by a statute of limitations. Such latter statutes, therefore, in reference to such common-law right of action are strictly and technically statutes of limitation, and, generally speaking, statutes of limitation which apply to other actions apply to these actions.

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 brings us to a consideration of the narrower questions involved, dependent upon a construction of the specific statutes upon the two subjects mentioned. In order that the occasion for the institution of these suits as they were instituted may be understood and appreciated, it should be premised that the payment of the taxes, which is the real subject-matter of these suits, was exacted by a collector who had gone out of office before the claims of the present plaintiffs had ripened into actions at law. The actions which were then brought were brought against his successor in office upon the mistaken theory that the acts of Congress relating to this phase of the subject gave a right of action against the incumbent of the office at the time the right was asserted. It was ruled otherwise in those cases. The plaintiff has abandoned its right of action against the collector for his wrongful act in exacting payment of taxes for which there was no lawful warrant, and is now exercising the privilege given it by other acts of Congress to institute an action against the United States itself as defendant.

This directs us to go at once to the statutes which are quoted as giving this privilege. Section 24 (20) of the Judicial Code (Comp. St. 1916, Sec. 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...