dissenting:
It is axiomatic that a former judgment is res judicata in a second suit on the same cause of action, not only as to those who were parties to the former action, but also as to their privies. The cause of action in the present suit is the same as in the former one and the plaintiff is the same; but in the former one the Collector of Internal Revenue of the United States was the defendant, whereas in this suit it is the United States that is. the defendant, and not its collector. The question presented, therefore, is whether or not under the circumstances of this case the United States in the former action was a privy of its collector.
Section 12 of the Act of March 3, 1863 (12 Stat. 737, 741) provides that in suits against collectors to recover taxes “no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final *374judgment, be provided for and paid out of the proper appropriation from the treasury” in these two cases, (1) where the court shall have certified “that there was probable cause for the act done by the collector or other officer,”, or (2) where “he acted under the directions of the Secretary of the Treasury or other proper officer of the government.”
In this case it appears from our findings of fact that in collecting the tax from this plaintiff the collector acted in pursuance of the second condition, that is, under an assessment made by the Commissioner of Internal Revenue. Under such circumstances the judge had no discretion as to whether or not the necessary certificate should be issued. The collector was entitled to it as of right. Had the collector acted on his own motion, without an assessment or other direction from his superiors, the certificate would have issued or not according to whether or not the judge believed that he had acted with probable cause; but not so where the collector acted in pursuance of instructions. Here the judge had no discretion. Upon it appearing that the collector acted under instructions, he was compelled to issue the certificate. Therefore, in this case, under the statute, no execution coul4 possibly issue against the collector; but, of necessity, the judgment had to “be provided for and paid out of the proper appropriation from the treasury.”
Under such circumstances, the United States knew when suit was brought against the collector that it would have to respond to any judgment rendered. When the suit was instituted it was, therefore, put on guard to defend its interest. This it in fact did in the former proceeding in this case. Its United States Attorney appeared and defended the action; he defended, not to save the collector from an execution, but. to save the United States from responsibility for the judgment.
In that suit the United States had an opportunity to interpose every defense it could have interposed had the suit been against it in name, instead of against it in substance; and the plaintiff had the right to advance every ground for recovery that it could have advanced had the United States been the nominal defendant. Every reason *375for the rule of res judicata is, therefore, present in this case. The reason a former judgment binds not only the same parties, but also their privies, is that a person in privity with a party to the action is under the obligation, because of his interest in the outcome of the litigation, to see to it that all defenses are raised in that suit to defeat it. He is under this obligation because the burden of the judgment may fall on him, in whole or in part. Therefore, having once had the opportunity to defend, he is denied it if later a suit is brought against him in person.
I have no doubt that the former judgment in this case is res judicata. My only concern is whether or not this view is in harmony with prior decisions of the Supreme Court. I think it is, if those decisions can be properly limited to cases where the United States might not have to pay the judgment and liability therefor might fall on the collector personally. I think they can be.
In the following discussion of the cases in the Supreme Court it is necessary to keep in mind that there are two contingencies under which a judgment against a collector must be satisfied by the United States; one is in a case where the judge shall issue a certificate that “there was probable cause for the act done by the collector or other officer”; and the other is “that he acted under the directions of the Secretary of the Treasury or other proper officer of the government.” My view is that former decisions of the Supreme Court holding that a judgment against the collector is not res judicata in a later suit against the United States should be limited to cases where the judge must exercise his discretion as to whether or not to issue a certificate of probable cause, and do not apply to a case where the collector acted under directions of his superior, in which case the certificate must issue of necessity.
The leading case is Sage v. United States, 250 U. S. 33. In this case the court held that a judgment against the collector was not res judicata in a later proceeding against the United States. This was on the theory that the suit against the collector was a personal one, for a wrong committed by him personally in exacting taxes which the taxpayer did not owe. Since it was a personal action, for which he *376might have to respond personally without the right of indemnification by the United States, the court held that a judgment against him was not res judicata in a later suit against the United States, which might not have been involved by the former judgment. But it did not appear in that case whether or not the collector in collecting the taxes had acted on his own motion or under directions of the Secretary of the Treasury. Apparently the decision was grounded upon the fact that the certificate might or might not have been granted within the discretion of the trial judge, and that, therefore, until such a certificate should issue, the United States did not know. whether or not it would become liable for the judgment. Since it could not. know this until after the judgment was rendered, the court held it was a stranger to the judgment at the time it was. rendered, and for this reason the judgment would not bind it in a later action. At the bottom of page 37 the court said :
At the time judgment is entered the United States is a stranger. Subsequently the discretionary action of officials may, or it may not, give the United States a practical interest in the amount of the judgment, as determining the amount of a claim against it, but the claim would arise from the subsequent official act, not from the judgment itself. '¡[Italics supplied.]
So far as appears, the court’s attention was not directed to the difference between a case for the issuance of a certificate of probable cause and a case where the collector was performing merely a ministerial duty in collecting an assessment made by his superiors, in which case a certificate must issue as a matter of course. In the former the United States might or might not become liable for the judgment; in the latter it could not but be.
In the case of Bankers Pocahontas Goal Co. v. Burnet, 287 U. S. 808, which followed the decision in the Sage case, supra, it did not appear whether or not the collector had acted in pursuance of an assessment or on his own motion, nor is there anything in this case, also, to-indicate that the court’s attention had been directed to the distinction between a suit against a collector acting under directions *377from his superior officers and one in which he had acted on his own motion. It was merely stated without discussion that a judgment against a collector was not “res judicata, against the Commissioner or the United States.”
The first case in which this distinction seems to have come to the attention of the court is Moore Ice Cream, Company, Inc., v. Rose, Collector of Internal Revenue, 289 U. S. 373. In view of what was held in that case it seems to me that had this distinction come to the attention of the court in the Sage case and in the Banlcers Pocahontas Coal Company case, these decisions would have been limited to instances where the collector had acted without instructions from his superior.
This distinction between the relation of the United States to a suit against the collector where he had acted under directions of his superior officer, and its relation to one where he had acted on his own motion was carefully developed by the court in this case. It did not deal with the question of whether or not a judgment against a collector would be res judicata in a later suit against the United States, but it seems -to me that it necessarily follows from its decision that it would be in a case where he had acted under directions of his superior.
The Moore case involved the necessity for protest as a prerequisite to a suit to recover taxes erroneously exacted. The argument in support of the necessity for protest was that while the statute might eliminate the necessity for it in a suit against the government, it could not constitutionally do so in a suit against the collector, as to taxes paid prior to the passage of the Act, since the collector was under a personal obligation to pay any judgment recovered against him. The court, discussing this personal liability, . and after calling attention to the fact that there were two different conditions upon which the government agreed to indemnify the collector, proceeded to discuss at length the difference between the relation of the collector and of the United States in a suit in which the collector had acted under the directions of the Secretary of the Treasury or other proper officer of the government, and in a suit where *378he had acted on his own motion. Dealing with a case where he had acted under instructions, the court said:
There was nothing left to his discretion. Other duties less definitely prescribed may leave a margin for judgment and for individual initiative. Cf. Agnes v. Haymes, 141 Fed. 631. There was no such margin here. His duty being imperative, he is protected by the command of his superior from liability, for trespass [citing cases], and is entitled as of right to a certificate converting the suit against him into one against the Government. * * * The case is not one for a certificate of probable cause, as it might be if the officer had trespassed under a mistaken sense of duty. In such circumstances a certain latitude of judgment may be accorded to the certifying judge, though even then it is enough that a seizure has been made upon grounds of reasonable suspicion. [Citing cases.] One does not speak of probable cause when justification is complete. Here the certifying judge will be subject to a specific duty upon the facts admitted by the demurrer to relieve the Collector of personal liability and to shift the burden to the Treasury.
A suit against a Collector who has collected a tax in the fulfilment of a ministerial duty is today an anomalous relic of bygone modes of thought. Be is not suable as a trespasser, nor is he to pay out of his own purse. He is made a defendant because the statute has said for many years that such a remedy shall exist, though he has been guilty of no wrong, and though another is to pay. Philadelphia v. Collector [5 Wall. 731]. There may have been utility in such procedural devices in days when the Government was not suable as freely as now. i[Citing cases.] They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, and that in the line of duty he has turned the money over. In such circumstances his presence as a defendant is merely a remedial expedient for bringing the Government into court. [Italics supplied.]
Since in such a case the collector was not personally liable-for trespass (the basis for the decision of the court in the Sage and Bankers Good Company cases) and could not be *379subjected to personal liability in any event, the court beld that to deprive Mm of the necessity for protest against the exaction of a tax, paid prior to the enactment of the statute, did not deny him due process.
But the court was careful to limit its opinion to a case where the collector was acting under the directions of his superior officer, and expressly differentiated such a case from one where the issuance of a certificate by the court was “dependent upon controverted facts, or upon facts permitting different inferences or calling upon the judge to exercise discretion.” TMs was for the reason that in the latter case the United States might never become liable for the judgment, whereas in the former its liability was definite and certain.
In view of this decision, I think the decision in the Sage case and in the Bankers Pocahontas Coal Company case must be limited to instances where the collector has not acted under directions of his superior. Where he has so acted, he has committed no personal trespass and can in no event be made to pay the judgment rendered; the liability therefor always falls upon the United States. The liability under the judgment being inescapable, responsibility is on the United States to offer all of its defenses in that suit. Having thus had its day in court, it cannot later bring a suit on the same cause of action. Conversely, the plaintiff, having once had the opportunity to present its claim in full against the United States, although the collector was the nominal defendant, it cannot do so again in a later action. It may be otherwise where the collector has acted on his own motion and not under instructions, but not in a case where the liability for the judgment must of necessity fall on the United States.
I do not think the decision in Tait v. Western Maryland, Ry. Co., 289 U. S. 620, is contrary to this view. On the contrary, it is some support for it. There the court said:
In a suit for unlawful exaction the liability of a collector is not official but personal. Sage v. United States, 250 U. S. 33; Smietanka v. Indiana Steel Co., 257 U. S. 1; Graham & Foster v. Goodcell, 282 U. S. 409, 430. And for this reason a judgment in a suit to which he was a party does not conclude the Commissioner or the United *380States. Bankers Pocahontas Coal Co. v. Burnet, 287 U. S. 308, 311. We think, however, that where a question has been adjudged as between a taxpayer and the Government or its official agent, the Commissioner, the collector, being an official inferior in authority, and acting under them, is in such privity with them that he is estopped by the judgment. See Second National Bank of Saginaao v. Woodworth, 54 F. (2d) 672; Bertelsen v. White, 58 F. (2d) 792.
While, the court stated, a judgment in a personal action against the collector is not res judicata in a later suit against the Commissioner or the United States, still, it said, a former judgment against the United States or the Commissioner would estop the collector in a later suit, because of the privity between him and the United States and its Commissioner. If this be true,- how can it be doubted that a judgment against the collector for an act done by him at the direction of the Commissioner would be an estoppel against the Commissioner or the United States in a later suit? And a judgment cannot be an estoppel against one party to a suit and not against the other. Where the collector acts under the Commissioner’s direction, and not on his own motion, his act is the act of the Commissioner, and a judgment against him for this act must of necessity bind the Commissioner. Under this decision, it would be otherwise if he acted on his own motion. I know of no other theory on which the quoted statements from this case can be harmonized.
There is nothing in the decision in Sunshine Coal Co. v. Atkins, 310 U. S. 381, which is contrary to this view. This case merely states again, incidentally, the proposition laid down in the Sage case, that the suit against the collector is personal, and for this reason a judgment in such a suit is not a bar to a subsequent suit against the United States. I think this expression, as the similar expression in the Sage case, must be limited to those cases where the collector might be personally liable for the payment of the judgment.
For the reasons stated, I think plaintiff’s petition should be dismissed.
*381On January 27th, 1941, the court entered the following:
CONCLUSION OK LAW AND JUDGMENT
Now on this 27th day of January, 1941, the court, having considered the memorandums of the respective parties with reference to the amount of judgment to be entered herein, finds that the plaintiff is entitled to a refund of $18,280.17 taxes paid and $596.48 interest paid on September 21,1926.
It is therefore ordered and adjudged that the plaintiff recover of and from the United States the total sum of eighteen thousand eight hundred seventy-six dollars and sixty-five cents ($18,876.65) heretofore paid, with interest at the rate of six percent per annum from September 21, 1926, to such date as the Commissioner of Internal Revenue may determine in accordance with the provisions of subsection (b), section 177 of the Judicial Code, being a part of the Revenue Act of 1928.