Page:Federal Reporter, 1st Series, Volume 10.djvu/535

KBNSBTT V. STIVEBS. �Btatute was set up, and the couri dismissed the bill. Judge Deady said : �"This is a tax within the meaning of the statute. It has theform and color of a tax. It was assessed upon manufactured articiles liable to a duty, by a person in office and clotlied with authority over the subject-matter. The tax has corne to the defendant for collection in due course of office and from the proper authority." ^ �In Pullan v. Kinsinger, 2 Abb. (U. S.) 94, in 1870, in the circuit court of the United States for the southern district of Ohio, before Judge Emmons, a bill in equity was filed by certain distillers to obtain an injunction restraining the defendants from collecting a tax which, as internai revenue officers of the United States, they claimed to collect from the plaintiffs as distillers. The bill was demurred to and was dismissed. It claimed that the govemment surveyors had fixed an erroneouB capaeity for the distillery under the act of July 30, 1868, and had thus given the assessors a fictitious basis for taxation, and that all taxes on the actual capaeity had been paid. It was insisted that the assessor had thus exceeded his jurisdiction; that the assess- ment was void; and that, therefore, the inhibition of the statute against an injunction did not apply. On the part of the defendant it was claimed that the surveyors and the assessor had jurisdiction of the subject; that their proceedings were not nullitiee, though they might be irregular and illegal ; and that the statute applied. The court sustained the demurrer solely on the ground that it had no right to restrain the collection of a federal tax assessed by an officer having jurisdiction of the subject, be it never so irregular or erro- neous. It says: �"It is sufflcient that a statute has authorized the assessor to entertain the general subject of taxation ; that it was in fact entertained, and a judgment, lawful or unlawf ul, was rendered concerning it. So far as this judgment was coneemed, lawful or unlawful, is deemed quite immaterial." �The view taken by the court was that the general subject of tax- ing distillers, and the judicial duty of determining, either upon view or inquiry or evidence, what persons and what things were within the law, was imposed upon the assessor. Various cases were cited to sus- tain the decision. One was a case where the assessment of a woman not liable to highway duty was held not to be a void proceeding. Another was a case where a person not a member of a military troop was fined by a court martial, and, his property being seized under a warrant, he brought replevin for it, and it was. held he could not main- ��� �