
    LAUER’S CASE. Frederick Lauer v. The United States.
    
      On the Broofs.
    
    
      A brewer appeals to the Commissioner of Internal Revenue from an assessment. The proofs show his appeal to be endorsed, “ examined and rejected,” with the signature of a person unknown to the court. It does not appear what office this person held, nor that the Commissioner adopted or sanctioned his decision. Río other decision is shown within six months from the time of taking the appeal.
    
    Under the Act 13th July, 1866, (14 Stat. L., p. 152, see. 19,) “ no suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected until appeal shall have been duly made to the Commissioner of Internal Revenue,” “and a decision of said Commissioner shall be had thereon,” ifc., “provided that if said decision shall be delayed more than six months from the date of such appeal, then the said suit may be brought at any time within twelvemonths from the date of such appeal.” Hence, in an action in the Court of Claims clue proof must be made of the Commissioner’s decision. A certificate endorsed on the appeal, “ examined and rejected,” signed by one unknown to the court, with no evidence to show that the Commissioner adopted it as his decision, is not due proof.
    
      Mr. JR. J. Atlcinson for the claimant:
    This case arises under “An act to provide internal revenue to support the Government and to pay interest on the public debt,’7 approved July 1,1862, (12 Stat. L., p. 450.)
    
      The claimant was, in the year 1862, and has been since, engaged in the business of brewing ale, porter, lager beer, &c., in the city of Reading, Pennsylvania. At the passage of the said act of July 1, 1862, above specified, he had in his possession, in the usual place of storage therefor, four hundred barrels of porter and ale, all of which had been brewed and manufactured before the 1st September, 1862, and removed to his usúal place of storage and safe-keeping prior to said 1st September, 1862, and kept separate and apart from liquors brewed and manufactured after that date. It appears that claimant was assessed and compelled to pay an internal revenue tax or duty of one dollar per barrel on said ale and porter, being four hundred dollars, which sum he paid to Diller Luther, collector of internal revenue for the eighth district of Pennsylvania, on the 22d day of November, 1862. Said tax was paid under protest ■ by claimant and threat of seizure by the collector. Application has since been made by claimant to the Commissioner of Internal Revenue for return of said tax; but it was not granted. Hence his application to this court for relief.
    This tax was assessed and collected under section 50 of “ An act to provide internal revenue to support the Government and to pay interest on the public debt,” approved July 1, 1862. (12 Stat. L., p. 450.)
    To subject the articles above specified, viz, beer, ale, porter, &c., to tax under this law, it is respectfully submitted the following state of facts must exist:
    I. The articles must have been “brewed or manufactured” after the 1st September, 1862.
    II. They must be “sold” after that date.
    III. They must have been “ removed for con sumption or sale after that date.”
    All these conditions apply to each of the articles named ; manufacture of the article, sale, or removal for consumption or sale ; all these must transpire after the 1st September, to subject to the tax.
    The primary condition, of course, on which the others rest, is the time of manufacture. If manufactured after 1st September, all the other conditions follow in the course of time; and they fix the time when the tax shall be assessed, viz, when sold, or when removed for consumption or sale; and all such so manufactured and sold, or removed for consumption or sale, are taxable.
    The language of tbe law cau hardly be construed otherwise. And the intent of Congress seems almost too clear to be controverted. Congress was passing a new revenue law, levying taxes on almost every description of property, manufactures, &c. On making their investigations in preparing the law, they found that most of the manufacturers of the articles specified in section 50 had their stocks on hand manufactured for the summer season, and upon proper principles, almost universally adopted by Congress when imposing taxes on manufactured articles, they make the tax prospective, fixing a day when it should be imposed. It was on this principle of legislative policy that Congress fixed this period of 1st September.
    That is the real question before the court. Is the proof satisfactory that the articles were “ brewed and manufactured before the 1st September, 1862 % ” By the act of March 3, 1S63, it is reduced to that single point. Shall the clear intent of Congress, first expressed in the original act, and subsequently reiterated, in the plainest language possible, in the declaratory act of March 3,1863, be set at naught by technical constructions directly in conflict with the intent of the law, as enacted by Congress ? Or shall the law, as it stands on the statute-book, be preserved in its integrity and vitality, andthe rights of the citizen arising under it be protected and secured, through this honorable tribunal, established for that purpose ¶
    
      The Assistant Attorney General for the defendants :
    The claimant in this case seeks to recover $400, paid November 22, 1862, to the collector of internal revenue of his district, upon an assessment of taxes, the petitioner alleging that this sum was not lawfully due as such taxes.
    It appears1 that the claimant duly made, as by law required, under oath, a return in which he returned six hundred and forty-three barrels of fermented liquors “ manufactured and sold, or removed for consumption or sale by himself, from the 1st day of September to the 30th day of September, 1862, inclusive,” these last words stating the conditions of taxation as prescribed in the statute of July 1,1862, section 50. (12 Stat. L., p. 450.)
    Upon this return he was lawfully assessed a tax of one dollar per barrel, and paid the same without protest.
    He now alleges that four hundred of those barrels thus returned as liable to tax, were, in fact, brewed and manufactured prior to the 1st day of September, 1862, and that they were removed from the place of manufacture, for consumption and sale, and kept separate and apart from all manufactured after that date, and therefore not subject to tax under the act of July 1,1862.
    I. The claimant cannot be allowed to contradict his sworn return, made under the penalties of perjury, by any other document than another return of like solemnity, and under like sanction. His first step toward obtaining a refunding of the tax assessed on this return, should have been an offer to make an amended return.
    The return shown authorizes the assessment, which is sufficient to cause the defeat of this claim. Further, it is good by way of estoppel. (Bend v. Hoyt, 13 Peters, p. 267.)
    II. There being no protest in this case, the payment must be regarded as voluntary. The United States Treasury is entitled to formal notice of intention to demand, and bring suit for, moneys paid in as taxes or duties. Mere objection is not sufficient notice to the Government to enable it seasonably to provide other resources in place of moneys so to be recovered back. (Bend v. Hoyt, 13 Peters, p. 267; Bliot v. Swartwout, 10 Peters, ,p. 137; Sehlesinger v. The United States, 1 C. Ols. R., p. 18; 3 Howard, p. 110.)
    III. The collector being liable to suit for money unlawfully collected as taxes, this case falls within the reasons of the decision in the case of HiehoU v. The United States, 7 Wallace, p. 129,) and Avithout the jurisdiction of this court as there defined. (Act June 30, 1864, sec. 44, as amended July 13,1866; 14 Stat. L., p. 111.)
    IY. The. exemption of the government from liability to actions for money improperly received into its Treasury as duties or taxes, is not dependent upon its exemption merely from civil suit. It lies deeper; for public corporations of inferior dignity, without the attributes of sovereignty, and which, like actual persons, are liable to be sued, are not liable to actions for suck moneys, except under express provisions of statutes. (Mosher v. BoMe, 11 Maine, p. 138; School District m Greene v. Bailey, 12 Maine, pp. 258, 259, 260.)
    V. This action cannot be maintained without holding the government liable for the unlawful acts of its agents. No adoption or ratification by the United States of any such unlawful act of one of its agents can be found in this case.
    VI. The intention of the law was to tax beer sold in the month of September, 1862. Equality required that all sales made in that month should be under like taxation.
    . VII. Prior to September 1, 1862, there was no removal of these four hundred barrels of beer such as made a plain separation between them and those subsequently manufactured. All were removed alike, and kept in the same place.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover back $409 illegally exacted from the claimant, as he alleges, in 1862, by the collector of internal revenue for the eighth district, of Pennsylvania. The Attorney General resists a recovery on several grounds, the chief of which is this: “The collector being liable to suit for money unlawfully collected as taxes, this case falls within the reasons of the decision in. the case of Nicholl v. the United States, (7 Wallace, p. 129,) and without the jurisdiction of this court, as there defined. (Act June 30,1864, sec. 44, as amended July 13, 1866; 14 Stat. L., p. 111.”) The counsel for the claimant responds that the case of Nieholl did not arise from the internal revenue laws, and that so much of the opinion of the Supreme Court as puts a construction upon them is mere .obiter dictum.

Without expressing any intimation whatever on the point, we observe that the case is not sufficiently established by the proofs to bring up the question sought to be decided. The Act 13th July, 1866, (14 Stat. L., p. 152, sec. 19,) says:

“ That no suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the Commissioner of Internal Bevenue, according to. the provisions of law in that regard, and the regulations, of the- Secretary of tbe Treasury established iu pursuance thereof, and a decision of said Commissioner shall he had thereon, unless such suit shall he brought within six months from the time of said decision, or within sis months from the time this act takes effect: Provided, That if said decision shall he delayed more than six months from the date of such appeal, then said suit may he brought at any time ivithin twelve months from the date of such appeal.”

The statute thereby gives three alternative periods within which a suit may be brought: first, six months from the time the act took effect, which is not the case, here; second, six months from the time of the Commissioner's decision, which is the ground relied upon j third, six months from a point at which the Commissioner’s decision has been 11 delayed more than six months,” which would be a period subsequent to the bringing of this action.

It is assumed by both parties that “ a decision of said Commissioner has been made,” and such is probably the fact. The record, however, merely shows that certain affidavits and certificates, dated at Beading, Pennsylvania, the 2d' and 3d September, 1868, were at some time transmitted to the Treasury Department,, and that upon them is indorsed, u examined and rejected September 8, 1868, by J. Pille.”

It does not appear what office Mr. Dille held, nor that the Commissioner ever adopted or sanctioned his decision. Nor can we sustain the suit by treating the return as evidence that no decision was made by the Commissioner upon the appeal, for the suit was brought before the decision had been “ delayed more than six months.” The suit rests entirely upon the fact of a decision having been made, and of that fact there is not sufficient evidence.

The objection not having been taken on the trial, the case will be remanded to the docket with leave, &c.  