Page:Federal Reporter, 1st Series, Volume 10.djvu/537

KENSETT V. STIVBBS. 525 �claimed that the tax was unaufchorized by law. The inhibitory stat- ute of 1867 was invoked by the defendant, who was a colleetor of in- ternai revenue, and the court dismissed the bill. Judge Bradford cited the two cases, before referred to, of Pullan v. Kinsinger and Rohhins v. Freeland, and hold that the suit was forbiddea by the act of congress. He said : �"Whenever an assessor, in the exeroise of his office, assesses a tax which in his discretion and judgment he is authorized by an act of congress to assess, lie being bound from the nature of his office to inquire and determine whether the thing in question is or is not the subject-matter of taxation, he is then exercising a legitimate jurisdiction over the subject-matter of taxation, and a tax thus assessed, although it may af tei wards in other proceedings be declared imauthorized, cornes within the description and meaning of that tax, the pay- aient of which congress haa forbidden to be reaisted by bills of injunction." �He held that the power and duty of determining whether the interest and dividends in question were liable to taxation were coofided by statute to the assessor ; that, when the assessor assessed the tax in question, he put into operation the power of determining ■whether such interest and dividends were properly the subject-matter of taxation ; and that he thus exercised his jurisdiction over a matter which was manifestly within it. In the present case it is contended that, although the assessor may have had jurisdiction over the subject-matter, he had no jurisdiction over the person of the plaintiflF, for the reasons stated in the bill. But, under the law, it was the duty of the assessor to inquire and determine who was subject to taxation, quite as much as to determine any other question. A mistake as to the person, made in the exercise of such jurisdiction, does not oust the jurisdiction any more than any other error does. �In V. S. V. Black, Il Blatchf. 543, in 1874, in this court, Judge Shipman, referring to the inhibitory statute, says that under it "payment must be made, at all events, whether the tax was justly or unjustly levied." �In Kissinger v. Beau, 7 Biss. 60, in 1875, in the circuit court of the United States for the eastern district of Wisconsin, the eommis- sioner of internai revenue had assessed against the plaintifiE a tax on distilled spirits, and the plaintiff filed a bill against the colleetor to restrain its collection. The court refused an injunction, on the ground that the inhibitory statute applied. The plaintiff claimed that he was not individually liable to the tax, because the business had been carried on by a corporation in which he was a stockholder. Judge Dyer held that it must be clear that the proceeding was ah ��� �