James Howden & Co. v. Standard Shipbuilding Corp. , 17 F.2d 530 ( 1927 )

HAND, Circuit Judge

(after stating the facts as above). The receivers’ theory, as we understand it, runs as follows: The certificates of overassessment, when issued by the Treasury officials and delivered to the Comptroller General, became property of the defendant, to which there was no adverse claim. The District Court, which by its receivers had assumed custody of all the defendant’s assets, had jurisdiction to compel the surrender of such property by summary petition against a third person, though he were not a party to the suit, especially when, as here, he got possession after the court took custody. Horn v. Pere Marquette Ry. Co. (C. C.) 151 F. 626, 629, 630; Wheaton v. Daily Telegraph Co., 124 F. 61 (C. C. A. 2), (semble). The members of the Shipping Board, who have made themselves a party to the Comptroller General’s refusal, by inciting it, are equally subject to such summary process.

Admitting all of this for argument’s sake, it still remains true that the court must acquire jurisdiction over the respondent in such a summary proceeding. We do not, of course, mean that he must be a party Jo the suit; the whole presupposition of the doctrine is, of course, to the contrary. In re Tyler, 149 U. S. 164, 13 S. Ct. 785, 37 L. Ed. 689. But he must be served, since the proceeding is in personam and enforceable by contempt. As to the Comptroller General, there is no shadow of justification for such an order, and in justice it must be admitted that the petition asks no relief against him individually. As to the members of the Shipping Board, there is as little, except as it depends upon the fact that they are named as parties defendant in the bills of the United States to foreclose both the mortgage and the lien. If they were parties generally, perhaps the argument might have force. American Brake Shoe & Foundry Co. v. N. Y. Rys. Co., 10 F. (2d) 920 (C. C. A. 2). But they are not parties at all. Though'named'as such, they have not appeared, nor have they been served personally, nor indeed even by publication, under section 57 of the Judicial Code, though such publication, if made; would not have resulted in personal jurisdiction over them. So far, therefore, as. the motion is to be treated as directed against the Shipping Board as individuals, the District Court was right.

It can succeed, if at all, only upon the theory that the United States is itself in some sense subject to such summary jurisdiction, by which it can be compelled through its officers to surrender possession of the certificates to the court. This is quite another question from whether affirmative relief can be granted against the United States under its bill to foreclose the tax lien. Whether such a bill is like a bill for an accounting, in which the plaintiff is regarded as offering to submit to a decree if the balance proves to be against him, we do not say. The Barque Thekla, 266 U. S. 328, 45 S. Ct. 112, 69 L. Ed. 313. Assuming as much, the case must still be tried in due course upon the pleadings, and must conclude with a decree after hearing.

We may again assume arguendo that a summary order might go against a private corporation in such circumstances, and that those of its officers who had power to comply might be treated as contumacious upon its default. Heinze v. Butte, etc., Co., 129 F. 274 (C. C. A. 9). But the United States is a corporation sovereign, and may not be proceeded against, except by its consent; a consent which would have to be expressed with extraordinary certainty in such a ease. No consent can.be spelled out, unless it be from the filing of the bill to foreclose the lien, however far that may go.

But, even if we were to say that the United States, by filing its bill, subjected itself to summary proceedings like an individual, and that all officers involved in any noneomplianee with the order were subject individually to contempt — an extravagant supposition— still the petition would not make out a case. The Shipping Board raises an adverse claim to the certificates, to which the Comptroller General has yielded. If we are to identify the United States with its officers so much as the appellants’ argument presupposes, we must consistently say that the same officers who refuse have in fact raised the adverse claim of a lien under the mortgage. That controversy cannot be summarily decided. Nor would there be the slightest warrant for turning over the certificates to the receivers, to await the decision of the court upon the merits of that question.

The petition also prays that the court summarily direct the United States to pay the claim, the money to be held subject to further order of the court. This is indeed a curious request, in result, the equivalent of a mandamus upon the Comptroller General to issue warrants upon the Treasury. Even though some ancillary power to issue mandamus could be worked out in the face of the ordinary rule (Covington Bridge Co. v. Hager, 203 U. S. 109, 27 S. Ct. 24, 51 L. Ed. 111), there would still remain all the objections, which we have just mentioned. Out of abundant caution we may add that we do not mean sub silentio to suggest that the District Court has in any event power to direct money to be withdrawn from the Treasury.

Order affirmed.