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pating the enactment of the present law, a collecting center, it does not matter removed his headquarters to a place in that care is taken to complete every legal Virginia at the other end of a bridge transaction on the other side of the Doleading from the city. He continued to tomac. We cannot suppose that it was use his former building as a storehouse intended to allow benefits so similar to for his pledges, but posted notices on his those coming from business done wholly office there that no applications for loans in the city to be derived from acts done would be received or examination of there and yet go free. We are of opinion pledges made there. He did, however, that, upon the undisputed evidence, the maintain a free automobile service from defendant was guilty of a breach of the there to Virginia, and offered to intend-law, and turn at once to the question ing borrowers the choice of calling upon which seemed to warrant allowing the him in person or sending their applica- case to be brought to this court. tion and security by a dime messenger The question relates to the charge of service not belonging to him, but estab- the judge. The judge said to the jury lished in his Washington building. If that the only question for them to dethe loan was made, in the latter case the termine was whether they believed the money and pawn ticket were brought concurrent testimony of the witnesses back and handed to the borrower in for the government and the defendant, Washington. When a loan was paid off, describing the course of business that we the borrower received a redemption cer- have stated, and as to which there was tificate, presented it in Washington, and no dispute. Those facts, [138] he corgot back his pledge. The defendant esti- rectly instructed them, constituted an mated the number of persons applying engaging in business in the District of to the Washington office for loans or Columbia. This was excepted to and redemption at fifty to seventy-five a day. the jury retired. The next day they His Washington clerk, a witness in his were recalled to court, and were told behalf, put it at from seventy-five to one that there really was no issue of fact hundred. We may take it that there for them to decide; that they were was a fairly steady stream of callers, as not warranted in capriciously saying is implied by the automobile service be that the witnesses for the government ing maintained. It is said with refer- and the defendant were not telling ence to the charge of the judge, to which the truth; that the course of dealwe shall advert, that there was a ques-ing constituted a breach of the law; tion [137] for the jury as to the de- that it was their duty to accept this exfendant's intent. But we perceive none. position of the law; that, in a criminal There is no question that the defendant case, the court could not peremptorily intentionally maintained his storehouse instruct them to find the defendant and managed his business in the way guilty, but that, if the law permitted, he described. It may be assumed that he would. The court added that a failure intended not to break the law, but only to bring in a verdict could only arise to get as near to the line as he could, from a flagrant disregard of the eviwhich he had a right to do: but if the dence, the law, and their obligation as conduct described crossed the line, the jurors. On an exception being taken, the fact that he desired to keep within it judge repeated that he could not tell will not help him. It means only that he them in so many words to find the demisconceived the law.

fendant guilty, but that what he said As to whether the conduct described amounted to that; that the facts proved did contravene the law, it is urged that were in accord with the information, a pledgee has a right to keep the and that the court of appeals had said pledged property where he likes and as that that showed a violation of law. he likes, provided he returns it in proper This was not a case of the judge's condition when redeemed. But that expressing an opinion upon the evidence, hardly helps the defendant. To keep for as he would have had a right to do. return, whatever latitude there may be Graham v. United States, 231 U. S. 474, as to place and mode, is part of the duty | 180, 58 L. ed. 319, 324, 34 Sup. Ct. Rep. of a pledgee, and, in the case of one who 118. The facts were not in dispute, and makes a business of lending on pledges, what he did was to say so, and to lay is as much a part of his business as mak-down the law applicable to them. In ing the loan. As we read the statute, its such a case obviously the function of the prohibition is not confined to cases where jury, if they do their duty, is little more the whole business is done in Washing than formal. The judge cannot direct a ton. If an essential part of it is don verdict, it is true; and the jury has the there and a Washington office is used as power to bring in a verdict in the teeth of both law and facts. But the judge | N. S. 40, 18 L. T. N. S. 152, 16 Week. always has the right and duty to tell Rep. 544. them what the law is upon this or that [140] The character of the charge state of facts that may be found, and he in this case is illustrated by the followcan do the same none the less when the ing paragraph: facts are agreed. If the facts are agreed, "In conclusion I will say that a failure the judge may state that fact also; and to bring in a verdict in this case can when there is no dispute, he may say so, arise only from a wilful and flagrant disalthough there has been no formal agree- regard of the evidence and the law as I ment. Perhaps there was a regrettable have given it to you, and a violation of peremptoriness of tone, [139] but the your obligation as jurors. Of course, jury were allowed the technical right, if gentlemen, I cannot tell you in so many it can be called so, to decide against the words to find defendant guilty, but what law and the facts, and that is all there I say amounts to that." was left for them after the defendant In my opinion, such a charge is a and his witnesses took the stand. If the moral command; and, being yielded to, defendant suffered any wrong, it was substitutes the will of the judge for the purely formal, since, as we have said, conviction of the jury. The law, which, on the facts admitted, there was no in a criminal case, forbids a verdict didoubt of his guilt. Act of February 26, rected “in so many words," forbids such 1919, chap. 48, 40 Stat. at L. 1181, Comp. a statement as the above. Stat. s 1246, amending 8 269 of the

It is said that if the defendant suf. , Judicial Code; Act of March 3, 1911, fered any wrong, it was purely formal; chap. 231, 36 Stat. at L. 1087.

and that the error is of such a character Judgment affirmed.

as not to afford, since the Act of Feb

ruary 26, 1919, chap. 48, 40 Stat. at L. Mr. Justice McReynolds dissents. 1181, Comp. Stat. § 1246, a basis for re

versing the judgment of the lower court. Mr. Justice Brandeis, dissenting: Whether a defendant is found guilty by

It has long been the established prac- a jury, or is declared to be so by a tice of the Federal courts that, even in judge, is not, under the Federal Consticriminal cases, the presiding judge may tution, a mere formality. Blair v. Unitcomment freely on the evidence and ex-ed States, 154 C. C. A. 137, 241 Fed. 217, press his opinion whether facts alleged 230. The offense here in question is have been proved. Since Sparf v. punishable by imprisonment. Congress United States, 156 U. S. 51, 39 L. ed. I would have been powerless to provide 343, 15 Sup. Ct. Rep. 273, 10 Am. Crim. for imposing the punishment except upRep. 168, it is settled that, even in crimi- on the verdict of the jury. Callan v. nal cases, it is the duty of the jury to Wilson, 127 U. S. 540, 32 L. ed. 223, 8 apply the law given them by the presid-Sup. Ct. Rep. 1301; Thompson v. Utah, ing judge to the facts which they find. | 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. But it is still the rule of the Federal Rep. 620. I find nothing in the act to courts that the jury in criminal cases indicate that it sought to do so. renders a general verdict on the law and the facts; and that the judge is without the province of the jury, I am unable to

Because the presiding judge usurped power to direct a verdict of guilty although no fact is in dispute. United concur in the judgment of the court. States v. Taylor, 3 McCrary, 500, 11 Fed. 470; Atchison, T. & S. F. R. Co. v. Unit

The CHIEF JUSTICE and Mr. Justice ed States, 27 L.R.A.(N.S.) 756, 96 C. C. Day concur in this dissent. A. 646, 172 Fed. 194. What the judge is forbidden to do directly, he may not

1 Compare People v. Sheldon, 156 N. Y. do by indirection. Peterson v. United 268, 41 L.R.A. 644, 66 Am. St. Rep. 564, States, 130 C. C. A. 398, 213 Fed. 920. 50 N. E. 840, 11 Am. Crim. Rep. 545; State The judge may enlighten the under. v. Bybee, 17 Kan. 462, 2 Am. Crim. Rep. standing of the jury, and thereby in- 449; Meadows v. State, 182 Ala. 51, 62 So. fluence their judgment; but he may not 737, Ann. Cas. 1915D, 663; Randolph v. use undue influence. He may advise; he Lampkin, 90 Ky. 551, 10 L.R.A. 87, 14

S. W. 538; McPeak v. Missouri P. R. Co. may persuade; but he may not com

128 Mo. 617, 30 S. W. 170, 4 Am. Neg. Cas. mand or coerce.

He does coerce when, 806; State v. Tulip, 9 Kan. App. 454, 60 without convincing the judgment, he Pac. 659; Lively v. Sexton, 35 Ill. App. overcomes the will by the weight of his 417. See Starr v. United States, 153 U. S. authority. Compare Hall v. Hall, L. R. 614, 626, 38 L. ed. 841, 845, 14 Sup. Ct. 1 Prob. & Div. 481, 482, 37 L. J. Prob. | Rep. 919.

land Teleph. & Teleg. Co. 230 U. S., might have over the subject could only 58, 66, 72, 57 L. ed. 1389, 1393, 1396, exist by reason of silence and inaction 33 Sup. Ct. Rep. 988; Memphis & L. on the part of Congress. The power R. Co. v. Railroad Comrs. (Memphis of the state, if it existed at all, was not & L. R. Co. v. Berry) 112 U. S. 609, inherent, but permissive; and ceased to 616, 28 L. ed. 837, 840, 5 Sup. Ct. Rep. exist the moment that Congress entered 299; Re Long Acre Electric Light & the field and exerted its dominant and P. Co. 188 N. Y. 368, 80 N. E. 1101; all-embracing authority in the matter. Southampton v. Jessup, 162 N. Y. 122, Wisconsin v. Duluth, 96 U. S. 379, 56 N. E. 538; New York v. Second 387, 24 L. ed. 668, 671; Chicago, R. I. Ave. R. Co. 32 N. Y. 272; Washington & P. R. Co. v. Hardwick Farmers ElevaBridge Co. v. State, 18 Conn. 54; Grandtor Co. 226 U. S. 426, 435, 57 L. ed. 284, Trunk Western R. Co. v. South Bend, 287, 46 L.R.A.(N.S.) 203, 33 Sup. Ct. 227 U. S. 544, 57 L. ed. 633, 44 L.R.A. Rep. 174. (N.S.) 405, 33 Sup. Ct. Rep. 303; Boisé The exertion by Congress of a power Artesian Hot & Cold Water Co. v. Boisé which is granted in express terms must City, 230_U. S. 84, 57 L. ed. 1400, 33 supersede all legislation over the same Sup. Ct. Rep. 997; Russell v. Sebastian, subject by the states. 233 U. S. 195, 58 L. ed. 912, L.R.A. United States v. Utab Power & Light 1918E, 882, 34 Sup. Ct. Rep. 517, Ann. Co. 126 C. C. A. 376, 209 Fed. 554; Cas. 1914C, 1282; Detroit United R. Co. Michigan C. R. Co. v. Vreeland, 227 U. v. Michigan, 242 U. S. 238, 61 L. ed. S. 59, 66, 57 L. ed. 417, 419, 33 Sup. Ct. 268, P.U.R.1917B, 1010, 37 Sup. Ct. Rep. Rep. 192, Ann. Cas. 1914C, 176; St. 87.

Louis, I. M. & S. R. Co. v. Hesterly, 228 The tolls fixed by the New York Act U. S. 702, 57 L. ed. 1031, 33 Sup. Ct. of 1915 for the use of the roadway and Rep. 703; Gulf, C. & S. F. R. Co. v. pathway between Buffalo and Squaw Hefley, 158 U. S. 98, 104, 39 L. ed. 910, island are confiscatory, and deprive the 912, 15 Sup. Ct. Rep. 802; Wisconsin v. Bridge Company of its property with. Duluth, 96 U. S. 379, 24 L. ed. 668; out due process of law.

Philadelphia Co. v. Stimson, 223 U. S. Willcox v. Consolidated Gas Co. 212 605, 56 L. ed. 570, 32 Sup. Ct. Rep. 340; U. S. 19, 53 L. ed. 382, 48 L.R.A.(N.S.) Greenleaf Johnson Lumber Co. v. Gar1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. rison, 237 U. S. 251, 59 L. ed. 939, 35 1034; Missouri P. R. Co. v. Nebraska, Sup. Ct. Rep. 551; Texas & P. R. Co. v. 217 U. S. 196, 54 L. ed. 727, 30 Sup. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Ct. Rep. 461, 18 Ann. Cas. 989; San Sup. Ct. Rep. 482; New York C. R. Co. Diego Land & Town Co. v. National v. Winfield, 244 U. S. 147, 61 L. ed. 1045, City, 174 U. S. 739, 757, 43 L. ed. 1154, L.R.A.1918C, 439, 37 Sup. Ct. Rep. 546, 1161, 19 Sup. Ct. Rep. 804; San Diego Ann. Cas. 1917D, 1139, 14 N. C. c. A Land & Town Co. v. Jasper, 189 U. S 680; Erie R. Co. v. Winfield, 244 U. S. 439, 442, 47 L. ed. 892, 894, 23 Sup. Ct. i 170, 61 L. ed. 1057, 37 Sup. Ct. Rep. 556, Rep. 571.

Ann. Cas. 1918B, 662, 14 N. C. C. A. The rates fixed by the statute must 957; New Orleans & N. E. R. Co. v. stand by themselves, and cannot be Harris, 247 U. S. 367, 62 L. ed. 1167, 38 justified upon the ground that the de- Sup. Ct. Rep. 535; Southern P. Co. v. fendant is making money upon its inter-Jensen, 244 U. S. 205, 61 L. ed. 1086, state and foreign commerce.

L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Smyth v. Ames, 169 U. S. 466, 541, 42 Ann. Cas. 1917E, 900, 14 N. C. C. A. L. ed. 819, 847, 18 Sup. Ct. Rep. 418; 597; Taylor v. Taylor, 232 U. S. 363, Minnesota Rate Cases (Simpson v. 58 L. ed. 638, 34 Sup. Ćt. Rep. 350, 6 N. Shepard) 230 U. S. 352, 435, 57 L. ed. C. C. A. 436; Kiefer v. Grand Trunk R. 1511, 1556, 48 L.R.A.(N.S.) 1151, 33 Co. 12 App. Div. 28, 42 N. Y. Supp. 171, Sup. Ct. Rep. 729, Ann, Cas. 1916A, 18; affirmed in 153 N. Y. 688, 48 N. E. 1105; Chicago, M. & St. P. R. Co. v. Tompkins, Gibbons v. Ogden, 9 Wheat. 1, 207, 6 176 U. S. 167, 44 L. ed. 417, 20 Sup. Ct. L. ed. 23, 72; Wilson v. McNamee, 102 Rep. 336; Seaboard Air Line R. Co. v. U. S. 572, 574, 575, 26 L. ed. 234, 235; Florida, 203 U. S. 261, 51 L. ed. 175, 27 New York C. & H. R. R. Co. v. TonselSup. Ct. Rep. 109.

lito, 244 U. S. 360, 61 L. ed. 1194, 37 It has always been within the power Sup. Ct. Rep. 620, 14 N. C. C. A. 1072; of Congress to exercise exclusive control | New York C. & H. R. R. Co. v. Hudson over bridges across the Niagara river, County, 227 U. S. 248, 57 L. ed. 499, 33 both as obstructions to navigation and Sup. Ct. Rep. 269; Hubbard v. Fort, 188 as instruments of foreign commerce. Fed. 997; Hagerla v. Mississippi River Any power which the state of New York Power Co. 202 Fed. 776.

The state cannot make mandatory | 476; Southern R. Co. v. Reid, 222 U. S. that which Congress and the Secretary 424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140; of War have left as optional.

Seaboard Air Line R. Co. v. Blackwell, Prigg v. Pennsylvania, 16 Pet. 539, 244 U. S. 310, 61 L. ed. 1160, L.R.A. 617, 10 L. ed. 1060, 1089; Hall v. De 1917F, 1184, 37 Sup. Ct. Rep. 640; MinCuir, 95 U. S. 485, 24 L. ed. 547; Smith nesota Rate Cases (Simpson v. Shepv. Alabama, 124 U. S. 465, 473, 31 L. ed. ard) 230 U. S. 352, 57 L. ed. 1511, 48 508, 510, 1 Inters. Com. Rep. 804, 8 Sup. L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. 729, Ct. Rep. 564; Charleston & W. C. R. Co Ann. Cas. 1916A, 18; Houston, E. & W. v. Varnville Furniture Co. 237 U. S. T. R. Co. v. United States, 234 U. S. 342, 597, 59 L. ed. 1137, 35 Sup. Ct. Rep. 715, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833; Ann. Cas. 1916D, 333; Erie R. Co. v. Southern R. Co. v. United States, 222 U. New York, 233 U. S. 671, 58 L. ed. 1149, S. 20, 56 L. ed. 72, 32 Sup. Ct. Rep. 2, 52 L.R.A. (N.S.) 266, 34 Sup. Ct. Rep. | 3 N. C. C. A. 822; Texas & P. R. Co. v. 756, Ann. Cas. 1915D, 138; Southern R. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Co. v. Railroad Commission, 236 U. S. Sup. Ct. Rep. 482; Baltimore & 0. R. 439, 446, 448, 59 L. ed. 661, 665, 666, 35 Co. v. Interstate Commerce Commission, Sup. Ct. Rep. 304; Northern P. R. Co. v. 221 U. S. 612, 618, 55 L. ed. 878, 882, 31 Washington, 222 U. S. 370, 56 L. ed. Sup. Ct. Rep. 621. 237, 32 Sup. Ct. Rep. 160; St. Clair The power of Congress over this inCounty v. Interstate Sand & Car Trans- ternational bridge is exclusive, and all fer Co. 192 U. S. 454, 468–470, 48 L. ed. state legislation concerning it is ineffec518, 524, 525, 24 Sup. Ct. Rep. 300. tive except in so far as it has been ex

The paramount and exclusive power pressly adopted and validated by Conof Congress in regard to the construc- gress, because the subject matter intion of bridges over navigable water- volves the external relations of the ways of the United States, which are United States with foreign governboundaries between two states, is well ments. established.

United States ex rel. Turner v. WilPennsylvania v. Wheeling & B. liams, 194 U. S. 279, 290, 48 L. ed. 979, Bridge Co. 18 How. 421, 15 L. ed. 435; 983, 24 Sup. Ct. Rep. 719; Nishimura The Clinton Bridge (Gray v. Chicago, Ekiu v. United States, 142 U. S. 651, I. & N. R. Co.) 10 Wall. 454, 462, 19 659, 35 L. ed. 1146, 1149, 12 Sup. Ct. L. ed. 969, 971; Stockton v. Baltimore Rep. 336; Oceanic Steam Nav. Co. v. & N. Y. R. Co. 1 Inters. Com. Rep. 411, Stranahan, 214 U. S. 320, 340, 53 L. ed. 32 Fed. 16, appeal dismissed in 140 U. 1013, 1022, 29 Sup. Ct. Rep. 671; ButtS. 699, 35 L. ed. 603, 11 Sup. Ct. Rep. field v. Stranahan, 192 U. S. 470, 493, 1028; Decker v. Baltimore & N. Y. R. 494, 48 L. ed. 525, 534, 535, 24 Sup. Ct. Co. 1 Inters. Com. Rep. 434, 30 Fed. Rep. 349; United States v. 43 Gallons 723; Luxton v. North River Bridge Co. of Whiskey (United States v. Lari153 U. S. 532, 38 L. ed. 811, 14 Sup. Ct. viere) 93 U. S. 188, 194, 23 L. ed. 846, Rep. 891; Covington & C. Bridge Co. v. 847; Head Money Cases (Edye v. RobKentucky, 154 U. S. 204, 38 L. ed. 962, ertson) 112 U. S. 580, 591, 28 L. ed. 798, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 801, 5 Sup. Ct. Rep. 247; Chinese Exclu1087; Kansas City Southern R. Co. v. sion Case, 130 U. S. 581, 604-606, 32 Kaw Valley Drainage Dist. 233 U. S. L. ed. 1068, 1075, 1076, 9 Sup. Ct. Rep. 75, 58 L. ed. 857, 34 Sup. Ct. Rep. 564; 623; Fong Yue Ting v. United States, Union Bridge Co. v. United States, 204 149 U. S. 698, 711, 712, 37 L. ed. 905, U. S. 364, 51 L. ed. 523, 27 Sup. Ct. 912, 913, 13 Sup. Ct. Rep. 1016; United Rep. 367; Monangahela Bridge Co. v. States v. Rauscher, 119 U. S. 407, 414, United States, 216 U. S. 177, 54 L. ed. 30 L. ed. 425, 426, 7 Sup. Ct. Rep. 234, 435, 30 Sup. Ct. Rep. 356; Newport & 6 Am. Crim. Rep. 222; Holmes v. JenniC. Bridge Co. v. United States, 105 U. son, 14 Pet. 540, 570-574, 10 L. ed. 579, S. 470, 26 L, ed. 1143.

594-596; Virginia v. Tennessee, 148 U. There are numerous cases in this S. 503, 519, 37 L. ed. 537, 543, 13 Sup. court holding that state regulations of Ct. Rep. 728; United States v. Comthe operation of railroads within a state pagnie Francaise Des Cables Telegraphare void when they would result in a iques, 77 Fed. 495; People ex rel. Barburden on interstate commerce.

low v. Curtis, 50 N. Y. 328, 10 Am. Rep. Atlantic Coast Line R. Co. v. Wharton, 483; Bowman v. Chicago & N. W. R. Co. 207 U. S. 328, 52 L. ed. 230, 28 Sup. Ct. 125 U. S. 465, 482, 31 L. ed. 700, 706, Rep. 121; St. Louis Southwestern R. Co. Inters. Com. Rep. 823, 8 Sup. Ct. Rep. v. Arkansas, 217 U. S. 136, 54 L. ed. 698, 689, 1062; Crutcher v. Kentucky, 141 29 L.R.A.(N.S.) 802, 30 Sup. Ct. Rep. 'U. S. 47, 57, 35 L. ed. 649, 652, 11 Sup. (141] ROCK ISLAND, ARKANSAS, &, internal revenue tax under the Act of LOUISIANA RAILROAD COMPANY, August 5, 1909, chap. 6, § 38, 36 Stat. at Appt.,

L. 11, 112, 4 Fed. Stat. Anno. 2d ed. p.

260. It is alleged that the claimant was UNITED STATES.

not engaged in or doing business in the

year for which the tax was collected, (See S. C. Reporter's ed. 141-143.)

and that therefore it was not due. The Internal revenue

recovery back of court of claims dismissed the petition on illegal tax condition precedent

the ground that the claimant had not appeal.

complied with the conditions imposed The appeal to the Commissioner of by statute, and the claimant appealed to Internal Revenue for the payment back of a this court. tax illegally assessed, which is made by U.

The facts are simple. After the tax S. Rev. Stat. § 3226, a condition precedent was assessed, a claim for an abatement to a suit for the recovery back of such tax, was sent to the Commissioner of Internal may not be neglected as being an idle for: Revenue in July, 1913. On December 18 mality, merely because the Commissioner of the [142] same year the Commishad, before payment of the tax, rejected a claim for its abatement.

sioner rejected the application, where(For other cases, see Internal Revenue, vii. upon, on December 26, the claimant in Digest Sup. Ct. 1908.]

paid the tax with interest and a pen[No. 82.]

alty. So far as appears there was

no protest at the time of payment, Submitted November 8, 1920. Decided No- and it is found that, after it, nothing vember 22, 1920.

was done to secure repayment of the

tax. By Rev. Stat. § 3226, amended A

PPEAL from the Court of Claims to by Act of February 27, 1877, chap.

review the dismissal of a petition for 69, § 1, 19 Stat. at L. 248, Comp. Stat. the recovery back of an alleged illegal $ 5949, 3 Fed. Stat. Anno. 2d ed. p. tax. Affirmed.

1034, no suit shall be maintained in any The facts are stated in the opinion. court for the recovery of any tax alleged Messrs. Thomas P. Littlepage and to have been illegally assessed "until apSidney F. Taliaferro submitted the

peal shall have been duly made to the

Commissioner of Internal Revenue accause for appellant:

Appellant made a sufficient appeal to cording to the provisions of law in that the Commissioner of Internal Revenue.

regard, and the regulations of the SecSan Francisco Sav. & L. Soc. v. Cary,

rectary of the Treasury established in Schwarzchild & S. Co. v. Rucker, 143 Provided,” etc. Regulations of the Sec2. Sawy. 333, Fed. Cas. No. 12,317; pursuance thereof, and a decision of the

Commissioner has been had therein; Fed. 656; Weaver v. Ewers, 115 C. C. A. 219, 195 Fed. 247; De Bary v. form to be used in applications for

retary established a procedure and a Dunne, 162 Fed. 961.

abatement of taxes, and distinct ones Solicitor General Frierson submitted for claims for refunding them. The the cause for appellee. Mr. W. Marvin claimant took the first step, but not the Smith was on the brief:

last. A claim for abatement of the assess- By Rev. Stat. § 3220, Comp. Stat. § ment is not an appeal to the Commis- 5944, 3 Fed. Stat. Anno. 2d ed. p. 1028, sioner for a refund of the taxes, as re- the Commissioner of Internal Revenue is quired by the statute, and its rejection authorized "on appeal to him made, to does not entitle the claimant to main-| remit, refund, and pay back” taxes iltain an action in court.

legally assessed. It is urged that the Nichols v. United States, 7 Wall. 122, "appeal” to him to remit made a second 130, 19 L. ed. 125, 128; Kings County appeal to him to refund an idle act, and Sav. Inst. v. Blair, 116 U. S. 200, 205, satisfied the requirement of § 3226. De29 L. ed. 657, 659, 6 Sup. Ct. Rep. 353; cisions to that effect in suits against a Hastings v. Herold, 184 Fed. 759. collector are cited, the latest being

Mr. Justice Holmes delivered the opin- Loomis v. Wattles, C. C. A. —, 266 ion of the court:

Fed. 876. But the words “on appeal to This is a claim for a sum paid as an him made” mean, of course, on appeal in

respect of the relief sought on appeal,Note.--As to when taxes illegally to refund if refunding is what he is assessed can be recovered back-see asked to do. The words of g 3226 also note to Erskine v. Van Arsdale, 21 must be taken to mean an appeal after L. ed. U. S. 63.

payment, especially in view of $ 3228,

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