ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE SHIRAS delivered the opinion of the court.
This was an action of assumpsit brought by John Stewart against Benjamin 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, Pennsylvania, 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 defence made by the defendant is set out in the record, as follows:
"And now, to wit, the fourth day of April, 1889, the court, on motion of John R. Read, Esq., United States 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 15, 1866, c. 184, 14 Stat. 93, 152, and section 44 of the act of June 6, 1872, c. 315, 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 ...