ARKANSAS v. BOWEN

ARKANSAS v. BOWEN. Appeals ; Judgments in aid of revenue laws, enforcement of. 1. An appeal lies to this court from a judgment of the Supreme Court of the District of Columbia entered in accordance with an opinion of the general term of that court reversing the judgment of a special term, where such judgment was entered after the appellate jurisdiction of the general term was abolished by the act of Congress of February 9, 1893. 2. A judgment in aid of the revenue laws of the State in which it is rendered and based upon a penal statute for the protection of such revenues, is not enforceable outside of the territorial limits of that State. 3. And a statute awarding a penalty of 25 per cent, upon the amount of money unaccounted for by a collector of taxes and a penalty of 50 per cent, per annum upon a judgment recovered against such delinquent collector and his sureties, is a penal statute although in it such penalties are called interest. 4. There is no difference in principle between a judgment against a delinquent collector in favor of a county and a judgment against such a collector in favor of the State. No. 281. Submitted May 22, 1894. Decided June 15, 1894. Hearing on a motion to dismiss an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, holding a law term, in an action on a foreign judgment. Judgment affirmed. The Court in its opinion stated the case as follows: • The appellee, Thomas M. Bowen, was, in the year 1875 and prior thereto, one of the sureties on the official bond of Benton Turner, collector of taxes, or collector of revenue as he seems to have been called, for the county of Faulkner in the State of Arkansas, a local officer of that county and State. For alleged default on his part to account for his collections, Turner was adjudged by the county court to be indebted to the county in the sum of $5,297.19, and a writ of scire facias according to the practice of the State, was thereupon issued against him and his sureties to show cause why final, judgment should not be rendered against each and all of them. Bowen was one of five sureties. He was a resident of the State of Arkansas at the time that he entered upon the bond; but it seems that in the year 1874, he removed to Colorado, and was a resident of that State (then a Territory) at the time of the proceedings against Turner ánd his sureties. One William G. Whipple, however, a lawyer of Little Rock, entered his appearance for him and the other sureties, and filed an answer for all the defendants. Judgment went against them on the 21st of May, 1875, for the sum of $5,297.19, the amount of the defalcation, and a penalty of twenty-five .(25) per centum imposed by law for the non-payment, amounting to $1,324.29. And it was further adjudged, in pursuance of the laws of the State of Arkansas, that the whole amount ($6,621.48) should bear interest until it was paid at the rate of fifty per centum per annum. One-third of the judgment was paid by some of the parties, but the residue remained and yet remains unpaid. On April 24, 1886, suit was instituted upon this judgment, in the name of the State of Arkansas, to which it had been transferred by operation of law in that State, against the defendant, Thomas M. Bowen, who was found here at the time. The amount claimed in the declaration was $4,414.32, and interest thereon from August 2, 1875, at the rate of fifty per centum per annum. The defendant pleaded the general issue, the Statute of Limitations of three years, satisfaction and a special plea to the effect that he had never been served with process in the original suit, and had never authorized any one to appear for him in it. A demurrer was filed to the plea of the Statute of Limitations, but it does not appear from the printed record what disposition was made of the issue thereupon joined, nor is it now important to ascertain. Issue was joined upon the other pleas; and the causes went to trial, and there was a verdict for the plaintiff on July 2, 1890, and thereupon judgment for the sum of $9,334.48 and costs of suit. At the trial, the record of the judgment of the Faulkner County Court was offered in evidence; and this was all the testimony in chief for the plaintiff. Objection was made to this record, and exception reserved to its admission in evidence. The defendant offered in evidence the deposition of William G. Whipple, the attorney who had appeared in the Faulkner County Court for the defendants, and who, in this deposition, testified that he had no authority to appear for them, notwithstanding that, as it was shown, he had distinctly and positively stated at the time in answer to a question from the attorney for the county, that he did have authority to appear for all of them. And this was shown by two depositions introduced in rebuttal. Appeal was taken by the defendant to the Supreme Court of the District of Columbia in General Term; and the General Term reversed the judgment, and remanded the cause to the special term, with directions to enter a judgment for the defendant, with costs. This was on November 16, 1891. The reversal by the General Term was based upon the theory that the judgment sued on was one rendered in aid of the revenue laws of the State in which it was pronounced; that the statute upon which it was founded was a'penal statute, and that the judgment was not one en- titled to be enforced outside of the territorial limits of that State. The opinion of the court is to be found in 9 Mackey, p. 291, and was concurred in by Chief Justice Bingham and Justices Cox and James. No further action was taken in the cause until December 9, 1893, a period of upwards of two years, when, upon the suggestion of the counsel for the plaintiff in the cause, judgment was entered in the special term for the defendant in accordance with the order of the General Term; and immediately on the same day an appeal was taken from that judgment to this court. In the meantime, as we know, the appellate power of the General Term of the Supreme Court of the District of Columbia had been abolished, and this court had been constituted by law the appellate tribunal for this District. On behalf of the appellee a motion has been filed to dismiss the appeal, on the ground that the appellate power has already been exercised in the cause; that this appeal is virtually an appeal from the decision of the General Term of the Supreme Court of the District of Columbia, rendered in 1891, which is not authorized by law; that any appeal from that decision should have been to the Supreme Court of the United States, which it would now be too late to entertain; and it is argued, upon the merits, that the decision of the General Term was right in any event, and the judgment should not be disturbed. On the other hand, it is contended on behalf of the appellant, that the decision of the General Term in 1891 was' not a final judgment from which an appeal would lie; and that there -was no final judgment from which the plaintiff in the suit could appeal before that of December 9, 1893. And on the merits, it is argued that the proceeding in Arkansas, upon which the judgment' was rendered which is sought to be enforced here, was not a proceeding to enforce a penalty or the revenue laws of the State, but merely a. civil action -for money had and received, a matter of contract, for which a judgment is entitled to the constitutional protection provided for judgments in all the States. Mr. Robert A. Howard for the motion. Mr. Calderon Carlisle and Mr. Wm. G.' Johnson contra. 1. No appeal lay until the order of the General Term had been complied with, by entering the judgment for the defendant. In other words, that a reversal of the judgment and remanding the cause to the special term, with directions to enter judgment, with costs, was not a final judgment, but only the judgment at special term, when so entered, was final. The precise question here presented has been decided by the Supreme Court of the United States in the case of Green v. Van Buskirk, 3 Wall., 448, 4SO. 2. This proceeding was in no sense to enforce the revenue laws of the State. Those laws had been completely enforced before the original action in which the judgment rendered was brought. The revenue had been collected by the county, but the officer who collected it had not turned it over to the county. His bond was given to secure to the county such money as he should collect; he did collect the amount ascertained in the judgment, but did not pay it over to the county; hence the suit on the bond. It was, therefore, obviously not in aid of the revenue laws of the State, but simply the collection of a debt for money had and received by Turner, the principal, for the use of the county, for which the sureties upon the bond were liable. 3. Nor was it the enforcement of a penalty. The law imposes upon the collector of taxes the duty to account, and makes any conversion by him bear interest at the rate of twenty-five per centum, while the judgment bears interest at the rate of fifty per centum. The fact that these rates of interest upon the debt are higher than ours does not make them any the less interest, and interest is simply a measure of damage or an agreed compensation for the detention of money. * 4. But, even if it could be treated as a penalty, the penalty is not of that description which is not enforceable without the State. It is not necessary to consider the various decisions in which it has been held that the penal laws of a State are not enforceable without the State. That question has received much consideration in the State and Federal courts with variant results. But the question as to what is a penal law within the meaning of that principle has been recently examined and decided by the Supreme Court of the United States, which decision it is submitted is conclusive of the question here presented. In the case of Huntington v. Attrill, 146 U. S., 657, on writ of error to the Court of Appeals of Maryland, the Supreme Court examines at length the whole subject and decides, following the dissenting opinion of Stone and McSherry, JJ., that the penal laws of a State, which are penal in the international sense, and therefore not enforceable in another State, are those which impose a punishment for the violation of a public law of the State; that they refer to public and not private wrongs, and such as are redressed by 'a public prosecution, and not such as are enforced by a civil action. Had this been a fine for embezzling the county funds it would clearly be a penalty within the international sense; but being merely a civil action for money had and received, with the legal interest or damages for its detention, it cannot be so considered, and is plainly within the distinction pointed out by the Supreme Court. Arkansas v. Bowen, 9 Mack., 291.—Reporter. [MAJORITY — Mr. Justice Morris] Mr. Justice Morris delivered the opinion of the Court: It would seem that, from the strict letter of the law creating this court, by which the right of appeal is given from “ any final order, judgment or decree of the Supreme Court of the District of Columbia, or of any justice thereof,” there is reason to assume that the plaintiff is entitled to appeal in this instance. Indeed, had the decision of the General Term in the case been carried into effect immediately aftér its rendition, and a judgment rendered thereon at the time by the special term, there seems to be no reason why the plaintiff might not then have again carried the case to the General Term, as preparatory to its ultimate removal to the Supreme Court of the United States, and have awaited the entry of the judgment by the special term before' taking that step. Notwithstanding the circuity of action involved in the proceeding, that would seem to be the more regular course. It would not follow, of course, that the second appeal to the General Term would be anything more than a matter of form, inasmuch as the question at issue would have been entirely disposed of. And so, while the present appeal to this court is not improper, and we do not deem ourselves precluded by the decision of the General Term from a review of the judgment now rendered, any more than the General Term itself would have been precluded, it would seem to be proper that we should not without good cause seek to reverse the action of that court. But we regard the decision of the General Term as right and proper, and in full accordance with the principles laid down by the Supreme Court of the United States in the case of Wisconsin v. Insurance Co., 127 U. S., 265, and restated in the more recent case of Huntington v. Attrill, 146 U. S., 657. We do not understand that the last mentioned case qualifies to any material extent the doctrine of the case of Wisconsin v. Insurance Co., so far as it concerns the operation of the penal statutes of a State made in aid of its revenue laws. The statute that was invoked in the case of Huntington v. Attrill, was, it was conceded, in some respects, a penal statute; but it was a statute made for the benefit and protection of individuals, and was the basis of suit by private individuals to enforce their private demands. The statute in the case of Wisconsin v. Insurance Co., was a public statute for the public benefit, in aid of the public policy of the State, and giving ground for suit only in the name of the State and for the benefit of the State. As stated by Mr. Justice Gray, in the case of Huntington v. Attrill, the case of Wisconsin v. Insurance Co. established this doctrine, and the doctrine was reaffirmed by him: “The rule that the courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties.” The judgment sued on here was, in part at least, a judgment for the recovery of a penalty, distinctly so stated in the judgment roll itself; and the statute, upon which the proceeding was based, is on its face a penal statute of great severity, awarding first a penalty of twenty-five per centum upon the amount of the money unaccounted for, and superimposed on that a penalty of fifty per centum a year, under the designation, it is true, of interest, but no less for that a penalty. And the principle applies no less because the judgment was in favor of a county, and not originally in favor of the State. In the matter of the raising of revenue, the county acts, not so much in its corporate capacity, for the benefit of its incorporators, as under the attributes of sovereignty, imparted to it for the time being by the State; and there can be no difference in principle between a judgment against a delinquent collector in favor of a county and a judgment against such a collector in favor of the_ State. The suggestion of counsel for the appellant is to some extent well founded, that this is an action substantially for money had and received. We have not, in the record, the bond given by Turner and his sureties; and we are not, therefore, advised of its scope and terms. But assuming it to be of the character usual in such cases, and that it was conditioned for a faithful accounting by the collector for the moneys received by him, we see no reason why, when judgment has been obtained at the suit of the county, or of a State, against the collector and his sureties, on his official bond, such judgment for the sum unlawfully retained by the collector, with ordinary legal interest, should not be enforced anywhere throughout the United States. That would be, in truth, a demand for money had and received, an ordinary common law demand; and there would be no question of penalty, or penal statute, or local revenue law in the case. The money sought to be recovered would be the money of the county .or State, and not a penalty imposed for delinquency. But while to some extent it is sought here to recover the money due to the county and unlawfully retained by the collector, the judgment is not confined to that. It embraces a penalty as well, and a double penalty; and we cannot in this action separate the claim for the penalty from the claim for money had and received. While the record shows how much was penalty and how much was money actually retained, yet the judgment is one and indivisible, and we could not apportion the recovery. For the reasons here stated, we are compelled to affirm the judgment of the court below, with costs; and it is so ordered.