Page:Federal Reporter, 1st Series, Volume 10.djvu/539

KENSETT V. STIVKBS. §2^ �up, and the court refused an injunction. Judge Dyer oited, with approval what was said by Judge Deady in Howland v. Soule, and by Judge Bradford in Delatvare R. Co.v. Prettyman, and by Judge Ship- man in U. S. v. Black, and said that he regarded the observations of the supreme court in Clinkenbeard v. U. S. 21 Wall. 65, as implying that the suit before him could not be maintained. �Against this current of authority the only case cited, or which I have beenable to find, in which an injunction hasbeen maintained to restrain the collection of an internai revenue tax, is that of Frayser v. Russell, 3 Hughes, 227, in 1878, in the circuit court of the United States for the eastem district of Virginia, before Judge* Hughes. The head-note, by Judge Hughes, is this : �"Though it is true that courts of equity of the United States cannot enjoin an offlcer of the United States from collecting a tax, yet there are circum- stances under which such collecting offlcers may be enjoined from claimiiig moneys of citizens and levying for them as if for taxes." �It is sufficient to say that the circumstances of the present case do not bring it within the circumstances of that case; that that case does not impugn the principles laid down in the other cases before ■cited ; and that, if it did, the weight of authority is against it. �It is contended for the plaintiff that the inhibitory provision found in the aet of March 2, 1867, does not apply to this case, for the rea- 8on that the right to bring this suit is saved by section 34 of the same act of 1867. That section provides as follows : �"This act shall not be construed to aflect any act done, right accrued, or penalty incurred under former acts, but every such right is hereby saved ; and all suits and prosecutions for acts already done in violation of any former act or acts of congress relating to the subject embraced in this act may be com- meneed or proceeded with in like manner as if the act had not been passed ; and all penal clauses and provisions in existing laws, relating to the subjects embraced in this act, shall be deemed applicable thereto." �It is contended for the plaintiff that, as the alleged deficiencies ■occurred before November 1, 1866, she had, as the law stood on that ■day, and before the act of 1867, a right of action to restrain the col- lection of the tax, beeause there was then no inhibitory statute, and ■that such right of action is a "right accrued" under an act or acts prior to the act of 1867, and so was saved by section 34 of that act ; and that this suit is a suit for an act done in violation of an act or acts prior to the act of 1867, relating to a subject embraced in that act, .and 80 may, under section 34, be commenced in like manner as if that act had not been passed. ��� �