Art Johnston v. Hugh Earle, Collector of Internal Revenue, Walter S. Shanks, Irwin Borthick and Irving H. Curran

(concurring) .

I believe that here we have a case where the Congress by legislation could give us jurisdiction. I do not believe that it has. Plaintiff seeks no relief against the United States government. He wants it off of the private hide of gov- *797 eminent officials. The basis for this is not in the Constitution per se.

If my associates mean that the district court did not have jurisdiction because of, or in the sense of, no claim being stated under the Constitution or Laws of the United States, I concur. I think that is what they mean.

While we do not here have the matter of collateral attack, I do believe the judgment as rendered, unappealed from, would be valid as against collateral attack. In that sense I think there was “jurisdiction.”

My thoughts herein closely coincide with those expressed in the very fine opinion of Judge Mathes in Bell v. Hood, D.C.S.D.Cal., 71 F.Supp. 813 .

Johnston, a citizen of the State of Oregon, appeals from a judgment in a suit against appellees, also citizens of Oregon, each holding offices in the Internal Revenue Bureau. The judgment held that appellant could not recover on his complaint that defendants had tortiously seized and converted to their own use a caterpillar tractor belonging to Johnston, because the evidence failed to show they were not entitled to do so in their official capacities as federal revenue officers acting in a federal tax levy.

The controlling matter of this appeal is the question of jurisdiction. It is not a diversity case. The question is whether the acts of the appellees violated the Federal Constitution or federal law, or are they only a violation of a state law against tortious conversion. There was *794 a pretrial at which the government’s officers’ contention of lack of jurisdiction was stated as follows:

The court held it had jurisdiction.

However, when these federal officers had secured a favorable judgment that their acts were not illegal, they abandoned their contention that the court lacked jurisdiction of the subject matter of the case and in their brief on appeal state the “sole issue”…

245 F.2d 793 Art JOHNSTON, Appellant, v. Hugh EARLE, Collector of Internal Revenue, Walter S. Shanks, Irwin Borthick and Irving H. Curran, Appellees. No. 14951. United States Court of Appeals Ninth Circuit. February 28, 1957. Warde H. Erwin, Barzee, Leedy & Erwin, Portland, Ore., for appellant. Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott and George F. Lynch, Attys., Dept. of Justice, Washington, D. C., Clarence E. Luckey, U. S. Atty., Edward J. Georgeff, Asst. U. S. Atty., Portland, Ore., for appellees. Before DENMAN, Chief Judge, and POPE and CHAMBERS, Circuit Judges. DENMAN, Chief Judge. 1 Johnston, a citizen of the State of Oregon, appeals from a judgment in a suit against appellees, also citizens of Oregon, each holding offices in the Internal Revenue Bureau. The judgment held that appellant could not recover on his complaint that defendants had tortiously seized and converted to their own use a caterpillar tractor belonging to Johnston, because the evidence failed to show they were not entitled to do so in their official capacities as federal revenue officers acting in a federal tax levy. 2 The controlling matter of this appeal is the question of…