Crawford v. Johnson

6 F. Cas. 777, 1 Deady 457, 1868 U.S. App. LEXIS 1334

• Court: U.S. Circuit Court for the District of Oregon
• Decided: September 14, 1868
• Status: Published

Opinion

DEADY, District Judge.

From the complaint it appears, that on and prior to November 1, I860, and ever since, the plaintiff was and has been collector of internal revenue for the district of Oregon, and that on or about said November 1, the plaintiff appointed the defendant Johnson, deputy collector of internal revenue for the sixth assessment district of Oregon, and that said defendant as principal, with the defendants Tapp and Smith as sureties, on said November 1, executed and delivered to the plaintiff, as collector aforesaid, a bond in the penal sum of $2,000, to be void upon the condition that said Johnson would faithfully perform the duties of deputy collector for the district aforesaid, etc.; and that the defendant Johnson failed to account for the sum of $1,978.42, of taxes placed in his hand for collection, but collected the same by virtue of his said office, and converted the amount to his own use, “for which sum the plaintiff is liable to account for and pay to the United States;” and that said plaintiff by reason of such failure, has been put to $21.58 expense, in addition to the sum aforesaid, for which sum of $2,000 he prays judgment.

A proviso to section 07 of the act of July 13, 1866 (14 Stat 172), provides: “That if any officer appointed under and by virtue of any act to provide internal revenue, or any person acting under or by authority of any .such officer, shall receive any injury to his person or property for or on account of any act by him done, under any law of the United States, for the collection of taxes, he shall be entitled to maintain a suit for damages therefor, in the circuit court of the United States, in the district where the party doing the injury may reside or shall be found.” Upon this proviso, counsel for plaintiff rests the jurisdiction of this court. On the argument, counsel for Smith practically abandoned the objection to the jurisdiction of the court. In this respect, the demurrer seems to hatfe interposed upon the impression tnat the plaintiff relied upon a similar provision in section 2 of the act of March 2, 1S33 (4 Stat. 032), concerning “the collection of duties on imports,” to support the jurisdiction of this court, and that such provision only applied to the collection of external revenue — duties on imports. But the proviso quoted from the act of 1800, gives the same jurisdiction to this court in cases of actions for injuries arising from acts done under the internal law, as under the laws for the collection of duties on imports.

The objection that the complaint does not state facts sufficient to constitute a cause of action, is, I think, not well taken. True, the complaint only states that the plaintiff is liable to pay the money converted by his deputy, to the United States, and under ordinary circumstances, a mere liability to suffer from the acts or omissions of another, does not give a right of action against such other. Some injury must actually result from such act or omission. A mere liability to be injured is not equivalent to an actual injury. But in this case, I think the plaintiff is more than merely liable to the United States for this money. The law makes him absolutely responsible for the conduct of his deputies, and also charges him with the whole of the taxes contained in the lists delivered to him for collection. Prima facie, the amount of the tax list is a fixed and ascertained indebtedness, for the payment of which he has given bond. This sum collected by Johnson, he is bound to pay. The condition of the bond is to keep the plaintiff harmless from any liability on account of any act or omission of Johnson’s. In this respect the complaint follows the terms of the condition, and, so far as the bond is concerned, ■ is a sufficient statement of a cause of action in any view of the matter. But it is doubtful if this court has jurisdiction of an action between these parties for a mere liability upon this bond, because the act of 1SGG limits the jurisdiction to cases where the officer or person shall receive an injury to his person or property. Instead of making the allegation of the complaint in the language of the bond, it would have been proper to have averred the fact to be, as it was admitted on the argument, that the plaintiff had already paid over the amount to the United States. If so, he has received an injury to his property to that extent — he has lost so much of it on account of his act in appointing Johnson deputy collector of taxes. But I think it proper, under the circumstances, to hold, that as this amount of taxes was charged to the plaintiff by the government, the money for the time being is to be considered as his own, and therefore taken or embezzled from him by Johnson, to his injury. The demurrer is overruled and judgment must be given for the plaintiff.

CRAWFORD (MARSHALL; v.). See Case No. 9,126.

CRAWFORD (MATHUSON v.). See Case No. 9,279.