# Pacific Steam Whaling Company v. United States/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
187 U.S. 447
Pacific Steam Whaling Company v. United States
Argued: December 8, 1902. --- Decided: January 5, 1903
The proceeding in this case is a novel one, and the first question is whether there was any action or suit-any case within the constitutional provision, art. 3, § 2, extending the judicial power of the United States 'to all cases, in law and equity, arising under this Constitution'-in which was entered a final judgment or decree such as entitled the petitioner to an appeal. 'A case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union.' 2 Story, Const. § 1646; Osborn v. Bank of United States, 9 Wheat. 738, 819, 6 L. ed. 204, 223. Here a petition was filed, which was in form an application for a license, with a protest that the petitioner ought not to be compelled to take one out. The application was granted, and the petitioner could certainly not appeal from an order granting that which he asked for. The application, it is true, was coupled with a protest, but who ever heard of an appeal being sustained from a protest? There was no suit against the clerk to restrain him from receiving the license money. He was not made a party, entered no appearance, and no decree was rendered for or against him.
The power to grant licenses was by the statute vested in the district court, or a judge thereof. Giving an interpretation to the petition the most favorable to the petitioner, it was an application to a tribunal having judicial functions to restrain itself from the discharge of administrative duties. It is contended that the nature of the proceeding is not changed by uniting judicial functions and administrative duties in the same tribunal; that it is the same as though such functions and duties were exercised by different bodies or officers, and that it is to be treated as though it was an application to a judicial tribunal to restrain a different and administrative officer from the discharge of administrative duties. Congress, it is said, cannot, by imposing both sets of duties upon the same tribunal, deprive a party of a right which he would have if those duties were intrusted to different officials. If we are justified in giving this interpretation to the proceeding we meet the familiar doctrine that an injunction will not lie to restrain the collection of a tax on the mere ground of its illegality. Dows v. Chicago, 11 Wall. 108, 20 L. ed. 65; Hannewinkle v. Georgetown, 15 Wall. 547, 21 L. ed. 231; State Railroad Tax Cases, 92 U.S. 575, sub nom. Taylor v. Secor, 23 L. ed. 663; Milwaukee v. Koeffler, 116 U.S. 219, 29 L. ed. 612, 6 Sup. Ct. Rep. 372. And this is true whether these taxes are local or general, or, if general, whether internal revenue or direct taxes. Indeed, in respect to internal revenue taxes § 3224, Revised Statutes [U.S.C.omp. Stat. 1901, p. 2088], specifically provides: 'No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' Something more than mere illegality is necessary to justify the interference of a court of equity. But if does not appear that the tax if unpaid would cast a cloud upon the title to any real estate, or work irreparable injury. While it may be that the failure to pay the tax would expose the petitioner to a multiplicity of prosecutions for misdemeanor, yet neither the district court, nor the judge, nor the clerk, initiates criminal proceedings, and the district attorney-the prosecuting officer-was not made a party to the suit. True, an order was entered that he be notified of the pendency of the application, and he appeared as amicus curioe. Even had he been made a party, would equity entertain a bill to restrain criminal prosecutions? Re Sawyer, 124 U.S. 200, 31 L. ed. 417, 8 Sup. Ct. Rep. 482; Harkrader v. Wadley, 172 U.S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119; Fitts v. McGhee, 172 U.S. 516, 43 L. ed. 535, 19 Sup. Ct. Rep. 269.
It is said that unless this application can be sustained the petitioner is without remedy, and that there is no wrong without a remedy. While, as a general statement, this may be true, it does not follow that it is without exceptions, and especially does it not follow that such remedy must always be obtainable in the courts. Indeed, as the government cannot be sued without its consent, it may happen that the only remedy a party has for a wrong done by one of its officers is an application to the sense of justice of the legislative department. Still, we must not be understood as deciding that the only remedy in this case was an appeal to Congress. It was held in Elliott v. Swartwout, 10 Pet. 137, 157, 9 L. ed. 373, 381, that, under the law as it stood at that time. Congress having made no special provision, where a collector had charged excessive duties, and the party paying them, in order to get possession of his goods, accompanied the payment by a declaration to the collector that he intended to sue him to recover back the amount erroneously paid and by a notice not to pay it over to the Treasury, an action could be maintained against the collector for the excessive charge. The court said that the question as to the right to recover must be answered in the affirmative, 'unless the broad proposition can be maintained that no action will lie against a collector to recover back an excess of duties paid him; but that recourse must be had to the government for redress. Such a principle would be carrying an exemption to a public officer beyond any protection sanctioned by any principles of law or sound public policy.' See also Cary v. Curtis, 3 How. 236, 11 L. ed. 576; Curtis v. Fiedler, 2 Black, 461, 17 L. ed. 273. In Erskine v. Van Arsdale, 15 Wall. 75, 21 L. ed. 63, a case of internal revenue taxes, it was said by Chief Justice Chase (p. 77, L. ed. p. 64): 'Taxes illegally assessed and paid may always be recovered back, if the collector understands from the payer that the taxes are regarded as illegal, and that suit will be instituted to compel the refunding of them.' And in State Railroad Tax Cases, 92 U.S. 613, sub nom. Taylor v. Secor, 23 L. ed. 673, Mr. Justice Miller observed: 'The government of the United States has provided, both in the customs and in the internal revenue, a complete system of corrective justice in regard to all taxes imposed by the general government, which in both branches is founded upon the idea of appeals within the executive departments. If the party aggrieved does not obtain satisfaction in this mode, there are provisions for recovering the tax after it has been paid, by suit against the collecting officer. But there is no place in this system for an application to a court of justice until after the money is paid.' Patton v. Brady, 184 U.S. 614, 46 L. ed. 717, 23 Sup. Ct. Rep. 493. By the statute the clerk is made the collector of the license taxes, and if this tax was illegal and paid under protest, and nothing in this or other legislation of Congress restricts such an action, very likely under these authorities an action would lie against him for the money thus wrongfully taken from the petitioner.
It may be, also, that an action could be maintained in the court of claims, or in one of the circuit or district courts of the United States, under the Tucker act, to recover directly from the United States. Dooley v. United States, 182 U.S. 222, 45 L. ed. 1074, 21 Sup. Ct. Rep. 762. But we are not called upon to decide what remedy by suit or action, if any, the petitioner may have. It is enough now to hold, as we do, that this novel proceeding was not a suit or action in which a final decree or judgment was rendered from which the petitioner could take an appeal to this court.
The order of the District Court is affirmed.
The CHIEF JUSTICE took no part in the decision of this case.

## Notes

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