Stewart v. Barnes

• Decision Date: 14 May 1894
• Docket Number: No. 316,316
• Citation: 38 L.Ed. 781,14 S.Ct. 849,153 U.S. 456
• Parties: STEWART v. BARNES
• Court: U.S. Supreme Court

153 U.S. 456

14 S.Ct. 849

38 L.Ed. 781

STEWART

v BARNES.

No. 316.

May 14, 1894.

J. W. M. Newlin and T. W. Neill for plaintiff in error.

Asst. Atty. Gen. Conrad, for defendant in error.

Mr. Justice SHIRAS delivered the opinion of the court.

This was an action of assumpsit brought by John Stewart against Benjaman H. Barnes executor of William H. Barnes, deceased, late collector of internal revenue, to recover the sum of $250.40, alleged to have been unlawfully collected from the plaintiff as internal revenue taxes on distilled spirits, with interest from June 26, 1869. The action was commenced in the court of common pleas of Bucks county, Pa., on April 25, 1887, and was thence removed by the defendant, by certiorari, into the circuit court of the United States for the eastern district of Pennsylvania, where the declaration was filed, and proceedings were had which resulted in a verdict and judgment for the defendant. From that judgment the plaintiff sued out a writ of error.

In his bill of particulars the plaintiff alleged that on June 26, 1869, he drew out certain distilled spirits which had been placed in a United States bonded warehouse prior to July 20, 1868, and that upon the withdrawal thereof he was required by the collector to pay taxes on fractions of gallons as though they were whole gallons, amounting to $8.62, and also the sum of $241.78, as taxes on spirits which had been lost by leakage, evaporation, etc.; that those amounts were unlawfully exacted; and that he paid the same under protest.

The defense made by the defendant is set out in the record as follows:

'And now, to wit, the 4th day of April, 1889, the court, on motion of John R. Read, Esq., U. S. attorney, grant leave to amend the plea filed in the above case by filing an additional plea as follows, to wit:

'And the defendant says that, to entitle the above plaintiff to maintain the above suit, appeal was not duly made to the commissioner of internal revenue according to the provisions of law, and the above suit was not brought within the period of time allowed thereby; and this the defendant is ready to verify,' etc.

Although the language quoted seems to indicate that there was another plea filed, no other plea appears in the record. Neither does it appear that there was a replication. The record shows that a jury was sworn 'to try the issue joined.'

The purpose of this plea was evidently to invoke the operation of those acts of congress which relate to the presentation of claims for alleged illegal exaction of taxes to the commissioner of internal revenue, and which lay down the conditions upon which alone the government permits a recovery by suit of amounts so exacted.

The provisions of the statutory law which bear directly upon the present case are section 19 of the act of July 13, 1866, c. 184 (14 Stat. 152), and section 44 of the act of June 6, 1872, which appears in the Revised Statutes as section 3227. Under either of those acts, before an action could be maintained in any court an appeal must first have been made to the commissioner. In the act of 1866 there was no limitation of the time within which such an appeal was to be made. The act of 1872 required that it should be made within two years from the time the cause of action accrued. Under the earlier act, if such appeal had been made, still no action could be maintained in any court unless a decision should have been made upon the claim by the commissioner, in which event the suit must have been brought within six months from the time of the decision, or within the same period after the act took effect. Under the later act, if the commissioner delayed his decision for more than six months, the claimant was not compelled to await it, but might have sued within six months next following the six months of the commissioner's delay, or one year from the time of appeal; but, if the claimant had allowed that period to terminate without instituting suit, he must then have waited, as before, until the claim should have been passed upon, and have sued within one year thereafter.

It was shown on the trial that, as to the sum of $241.78, the defendant had duly appealed to the commissioner of internal revenue, that the claim was rejected, and that the suit was brought within the required time after such decision; but nothing appears in the bill of exceptions to show that an appeal was made concerning the amount of $8.62 of the claim.

Though the effect of the plea was to confess the plaintiff's cause of action, as to the exaction of the alleged amounts of money from him, and as to the payment of the same under protest (see Gale v. Capern, 1 Adol. & E. 102), nevertheless, to prove the exaction, the plaintiff introduced as a witness in his behalf a deputy collector, John F. Cline, who testified that the sums of money mentioned in the bill of particulars had been paid by the plaintiff to the collector of internal revenue for the first district of Pennsylvania; that the spirits were bonded prior to July 20, 1868; and that the sum of $8.62 had been paid upon fractions of gallons taxed as whole gallons, and the sum of $241.78 upon spirits lost by leakage, etc. The defendant admitted that certain official regulations promulgated by the commissioner of internal revenue prior to and upon April 22, 1869, which were offered in evidence by the plaintiff, provided that the taxes on distilled spirits placed in bonded warehouses before July 20, 1868, should be exacted, upon the withdrawal of the spirits, only upon the actual quantity thereof so withdrawn. No evidence was introduced to show the nature of the protest made, but it was unnecessary to prove more than that the payment was made 'under protest,' which was admitted by the plea. Wright v. Blakeslee, 101 U. S. 174.

The defense made on the trial consisted of the introduction of evidence tending to show that the plaintiff had received from the government, under the provisions of an act of congress approved July 26, 1886, the sum of $241.78, for which his attorney, T. W. Neill, gave a receipt to the commissioner of internal revenue. The act is enti- tled 'An act for the relief of Richard C. Ridgway and others,' and is as follows:

'Whereas, from the time bonded warehouses were first established until April 14, 1869, the law has been uniformly construed and administered to allow for loss by leakage on spirits distilled prior to July 20, 1868, while in warehouse; and whereas it was the uniform practice and in accordance with the rules and regulations of the commissioner of internal revenue, approved by the secretary, to collect internal revenue taxes upon only so much of the spirits distilled prior to July 20, 1868, as were actually withdrawn from warehouse, under which established regulations large quantities of spirits were bought and sold while in bond; and whereas in a few exceptional cases taxes were also collected on that portion of such spirits which were lost by leakage while remaining in warehouse: therefore,

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the secretary of the treasury be, and he is hereby, required to pay, out of any money in the treasury not otherwise appropriated, to the following-named persons in the city of Philadelphia,...