187 U.S.

447
23 S.Ct. 154
47 L.Ed. 253

PACIFIC STEAM WHALING COMPANY, Appt.,

v.
UNITED STATES.
No. 26.
Argued December 8, 1902.
Decided January 5, 1903.

Section 460 of the act of March 3, 1899 (30 Stat. at L. 1253, 1336, chap.
429), entitled 'An Act to Define and Punish Crimes in the District of
Alaska, and to Provide a Code of Criminal Procedure for Said District,'
reads: 'That any person or persons, corporation or company, prosecuting,
or attempting to prosecute, any of the following lines of business within
the district of Alaska shall first apply for and obtain license so to do from
a district court, or a subdivision thereof in said district, and pay for said
license for the respective lines of business and trade as follows, to wit:'
Then follows a list of forty-two callings and occupations, among which,
applicable to the present case, are the following:
'Fisheries: Salmon canneries, four cents per case; salmon salteries, ten
cents per barrel; fish-oil works, ten cents per barrel; fertilizer works,
twenty cents per ton.
*****
'Ships and shipping: Ocean and coastwise vessels doing local business for
hire plying in Alaskan waters, one dollar per ton per annum on net
tonnage, custom-house measurement of each vessel.'
Section 461 makes it a misdemeanor to engage in any of the occupations
referred to without first obtaining a license. Section 463 reads:
'That the licenses provided for in this act shall be issued by the clerk of
the district court or any subdivision thereof, in compliance with the order
of the court or judge thereof duly made and entered; and the clerk of the

court shall keep a full record of all applications for license, and of all
recommendations for and remonstrances against the granting of licenses
and of the action of the court thereon. The clerk of the court shall be
entitled to receive from each applicant for a license a fee of five dollars,
and no other or additional compensation shall be paid such clerk for his
services in connection with such license or the issue thereof: And
provided, That the clerk of said court and each division thereof shall give
bond or bonds in such amount as the Secretary of the Treasury may
require, and in such form as the Attorney General may approve, and all
moneys received for licenses by him or them under this act shall be
covered into the Treasury of the United States, under such rules and
regulations as the Secretary of the Treasury may prescribe.'
On July 6, 1899, the Pacific Steam Whaling Company filed in the district
court of thE uniteD states for the district oF alaska a petition entitled:
'In the Matter of the Application of the Pacific Steam Whaling Company
for a license for the steamship Wolcott, the steamship Excelsior, the
steamship Newport, and the steamer Golden Gate, and canneries, and
protest thereon.'
It alleged that the petitioner was the owner of the steamships Wolcott,
Excelsior Newport, and Golden Gate, engaged in doing a local business
for hire in Alaskan waters, and was also engaged in the business of
carrying on salmon canneries at certain named points in the district. It
denied that it was subject to any license for the prosecution of either
business, notwithstanding the provisions of the statute referred to; that, in
view of the stringent penalties provided in that statute for carrying on
business without the required license, it made the following protest: That
the steamships were taxed as its property in the port of San Francisco,
California, of which state the petitioner was a corporation, and was
therefore not subject to a license tax in the district of Alaska; that a license
fee at the rate of $1 per ton, together with the tax charged in California
against the petitioner, made a double tax, and was unreasonable,
exorbitant, oppressive, and amounted to the taking of petitioner's property
without due process of law; that the title of the act under which this
license section was found had no reference to the granting of a license for
the prosecution of a lawful business, and the provisions of the act, so far
as they purport to require the payment of license fees, are vague,
unintelligible, and doubtful, so that it cannot be reasonably inferred that
Congress intended to require their payment, and that 460 and 461 of
the act were contrary to the provisions of 8 and 9 of article 1 of the
Constitution of the United States, and therefore null and void. The prayer

of the petitioner was as follows:

'1. That the said court first try and determine the matter as to whether or
not it is necessary for the said petitioner to pay into court any license or
sum of money whatsoever as provided under said act.
'2. That if said court shall determine that your petitioner with respect to
said steamships Wolcott, Excelsior, Newport, and Golden Gate should
first pay the said license fee required under said act in your court, before
the trial and determination of said cause and matters herein set out, that
the same be held by the clerk until the trial and determination of the
matters and facts set forth herein.
'3. That if the court determines that a license in the meantime should be
granted to the said steamships, or either of them, as ocean and coastwise
vessels, and doing local business for hire, plying in Alaskan waters,
This petition was verified by the oath of money so held by the clerk of the
court under protest as aforesaid, subject to the further action of this
honorable court.'
This petition was verified by the oath of the attorney of the petitioner. A
copy of the petition was served upon the United States district attorney for
the district of Alaska, the amount of the license fees was deposited with
the clerk of the court, and a final order entered on January 2, 1900, which
directed the clerk to issue the license and turn the money deposited into
the Treasury of the United States, adding: 'So far as said protestants seek
relief against the payment of a license on the several businesses therein
described, the same is overruled, denied, and ignored in each case of
protest.' An appeal was allowed by the district judge, and a transcript of
the record filed in this court on August 15, 1900.
Messrs. S. M. Stockslager, George C. Heard, John R. Winn, and John G.
Heid for appellant.
Solicitor General Richards and Assistant Attorney General Beck for the
United States.
Mr. Justice Brewer delivered the opinion of the court:

The proceeding in this case is a novel one, and the first question is whether
there was any action or suitany 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.
2

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. Comp. 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 attorneythe

prosecuting officerwas 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.
3

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.
4

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.