Tax Refund Claims in Trespass Actions
Refund claims in some common law trespass actions were limited to situations where the collector lacked jurisdiction.
The Case of the Marshalsea (K.B. 1612) 77 Eng.Rep. 1027 (Marshalsea), was an important early effort to elevate the common law courts over the many specialized courts.
The case was an action for "trespass of assault, battery, wounding and false imprisonment against" marshals of one of these specialized courts (the Court of the Marshalsea). (Marshalsea, at p. 1028.)
The common law court allowed the action because the marshals lacked any jurisdiction over the plaintiff; had the marshals had jurisdiction, the plaintiff could not have asserted a claim based on an erroneous exercise of the jurisdiction. (Marshalsea, at pp. 1039-1041; see also Thurston v. Martin (C.C.D.R.I. 1830) 23 F.Cas. 1189, 1191, F. Cas. No. 14018.)
In Patchett v. Bancroft (K.B. 1797) 101 Eng.Rep. 1024, the court rejected the plaintiff's claim of trespass for the taking of his cattle because the warrant of distress resulting in the taking was properly issued, despite the fact that the plaintiff objected to one of the several taxes underlying the warrant. (Id. at pp. 1024-1026; see also Kirst, at p. 1320 & fn. 200 citing Patchett for the proposition that "the common law actions were not available to challenge the amount of an assessment or tax ...".)
Although the 1612 Marshalsea decision may have been important in the development of the power of the common law courts, and although courts hearing trespass actions may have continued to focus on the existence of jurisdiction, the late-18th-century actions for money had and received discussed above were not based on Marshalsea.
The courts heard the actions despite the fact that the governmental officials involved had apparent jurisdiction over the plaintiffs. That is, the common law courts heard claims for refunds not only in trespass actions where collectors were entirely without jurisdiction, such as where the taxpayer was not an inhabitant of a locality within the collector's jurisdiction (Nichols v. Walker & Carter (K.B. 1634) 79 Eng.Rep. 944), but also in actions for money had and received where it was claimed that tax collectors had collected too much tax. In Stevenson v. Mortimer, supra, 98 Eng.Rep. at page 1373, one issue was whether fees charged on a boat were excessive.
In Camplin v. Bullman, 145 Eng.Rep. at pages 758, 764, the issue was whether the plaintiff was properly charged, in addition to general duties applicable to goods and merchandise, a duty applicable to French-made sails.
Finally, in Campbell v. Hall, supra, 98 Eng.Rep. at pages 1045-1047, 1050, the issue was whether the applicable export duties were the prevailing British duties or the (presumably lower) duties imposed by the French king. In each of those actions the court heard a claim for refund of only a portion of the total imposition. None of the cases suggests an action for money had and received is available only where the claim is that no tax is due.
The only authority to the contrary of which we are aware is Whitbread v. Brooksbank (K.B. 1774) 98 Eng.Rep. 970, 972, where the court stated without explanation or citation to authority that "an action for money had and received will not lie against an Excise officer for an over-payment ... ." Whitbread was an overpayment claim regarding the statutory calculation of the bounty on beer. (Id. at pp. 971-972.) The court's statement was dicta because the defendant excise officer waived the objection to the action and the case was decided on the merits. (Id. at p. 972.)
American cases decided before adoption of the California Constitution in 1850 provide further support for a right to jury trial in actions for partial tax refunds.
Most prominently, in Elliott v. Swartwout (1836) 35 U.S. 137 at pages 156-158, the United States Supreme Court concluded that a customs collector could be held liable in an action for money had and received to recover a portion of import taxes.
Swartwout was an overpayment case, in which the issue was whether certain articles imported by the plaintiff were subject to an ad valorem tax applicable to "manufactures of wool" or to a lower tax applicable to "worsted" goods. (Id. at pp. 151-152.)
Relying on English common law precedents, the court held the collector was subject to the action to recover the excess paid so long as the plaintiff gave notice of the claim of error at the time of payment. (Id. at pp. 157-158.)
In 1839, the Supreme Court followed Swartwout in another overpayment of duties case, stating "there is no doubt, that the collector is generally liable in an action to recover back an excess of duties paid to him as collector, where the duties have been illegally demanded, and a protest of the illegality has been made at the time of the payment, or notice then given that the party means to contest the claim; whether he has paid over the money to the government or not." (Bend v. Hoyt (1839) 38 U.S. 263 at p. 266.)
The decision indicates the plaintiff's claims were heard by a jury. (Id. at p. 264.)
Swartwout was overruled in 1845 by Cary v. Curtis (1845) 44 U.S. 236 11 L. Ed. 576 (Cary), not because Cary disagreed with Swartwout's reasoning, but because of a statutory change following Swartwout.
Specifically, Swartwout reasoned it was fair to hold a customs collector liable in a refund action if he had received notice of the claimed error, because he could hold onto the funds rather than turning them over to the treasury. (Swartwout, supra, 35 U.S. at p. 158.)
In 1839, Congress passed a law prohibiting customs collectors from holding onto funds in such circumstances. (Cary, at pp. 240-241.)
Cary concluded that, because the collector could no longer hold onto the money pending resolution of a refund action, it would be unfair to hold him personally liable. (Cary, at p. 251.)
It does not appear Cary was indicative of a change in the English common law. "Within a few weeks" of the Cary decision, Congress "passed an 'explanatory Act' to the effect that the 1839 provision should not be construed to take away or impair the right of any person who had paid duties under protest to maintain an action at law against a Collector of Customs 'to ascertain and try the legality and validity of such demand and payment of duties, and to have a right to a trial by jury, touching the same, according to the due course of law.'" (Plumb, supra, 60 Harv. L.Rev. at p. 690, quoting Act of Feb. 26, 1845, ch. 22, 5 Stat. 727.)
Moreover, the Supreme Court continued to regard Swartwout as an accurate statement of common law principles. In 1866, in the income tax context, City of Philadelphia v. The Collector (1866) 72 U.S. 720, 731-732 18 L. Ed. 614 (City of Philadelphia), cited Swartwout, supra, 35 U.S. 137, for the proposition that the "appropriate remedy to recover back money paid under protest on account of duties or taxes erroneously or illegally assessed, is an action of assumpsit for money had and received."
The court also cited Bend v. Hoyt, supra, 38 U.S. 263, for the proposition that, "when the duties or taxes are illegally demanded, ... the collector may be compelled to refund the amount illegally exacted." (City of Philadelphia, at p. 732; see also Erskine v. Van Arsdale (1872) 82 U.S. 75, 77 following a jury trial, stating that "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.".)
Accordingly, the historical analysis shows that at the time of adoption of the California Constitution in 1850, there was a long history of common law actions for money had and received against tax collectors, which actions included a right to jury trial. (See also Jogani, supra, 165 Cal.App.4th at pp. 905-906 at common law, assumpsit actions were tried by juries.)
Those actions were not limited to claims that no tax was due. It makes sense that a different rule might apply in trespass actions. If a tax collector has jurisdiction over a person or subject matter, and some tax is indisputably due, it is problematic to characterize the collector's seizure of goods as a trespass. (See Thurston v. Martin, supra, 23 F.Cas. at p. 1191; see also Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480 "'The essence of the cause of action for trespass is an "unauthorized entry" onto the land of another. ...'".)