
    FORT PITT GAS CO. v. THE UNITED STATES.
    [No. 30191.
    Decided January 12, 1914.]
    
      On the Proofs.
    
    The plaintiff is a corporation organized for the development and transportation of natural gas, and at times covered by this suit its pipe-lines were used exclusively to transport its own products to its own customers. Its gross annual receipts exceeded $250,000. This suit is brought to recover certain taxes assessed and paid under section 27 of the war revenue act of 1898, it being alleged that by reason of the character of plaintiff’s lines the taxation was wrongfully or unlawfully collected and should be repaid.
    I.The general statute of limitations of actions in this court, section 156 of the Judicial Code, prescribes that a claim is barred unless a petition be filed “within six years after the claim first accrued” and is not inconsistent with a section of the Revised Statutes which fixes the-limitation for a particular class of cases.
    II.Statutes in pari matei-ia are to be construed together, and repeals by implication are not favored if the acts can reasonably stand together.
    III.The general statute of limitations for actions in the court is not applicable for a particular class of cases where the statute has fixed the limitation for that particular class of cases.
    
      The Beporter’s statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. Tbe claimant is a corporation, organized under tbe laws of tbe State of Pennsylvania and doing business therein, and bas been so organized and doing business since prior to April, 1900. Tbe purpose for which it was formed and which it has conducted since it was organized is the development of natural gas and transporting the same by pipe line or lines to its own customers, to whom it sells the same. At the times herein mentioned its pipe lines were used exclusively to transport its own products to its own customers. Its gross annual receipts exceeded the sum of $250,000.
    II. Claimant was assessed on the August list, 1900, for the months of April and May, by the proper internal-revenue officer, upon its gross receipts exceeding the sum -of $250,000 the sum of $50.93, which amount, together with $18.85 penalty and interest, aggregating $69.78, was paid by it to the proper collecting officer under protest August 1, 1903.
    III. That for the months of January, February, March, April, May, June, November, and December, 1901, and the months of January, February, March, April, May, and June, 1902, it was further assessed upon its gross receipts exceeding $250,000 the further sums aggregating $2,299.04. The sums so assessed were paid by claimant, but the times when such sums were paid is not disclosed by the evidence.
    IV. August 28, 1903, claimant filed its application with the proper officer to have refunded to it the sum of $69.79, which application was rejected November 10, 1905. This application was made upon a form furnished by the Internal Revenue Bureau and is in words and figures as follows:
    “State oe PENNSYLVANIA,1 “ County of Allegheny J '
    “H. B. Beatty, of the city of Pittsburg and State and county aforesaid, being duly sworn according to law, deposes and says that he is the agent of the Fort Pitt Gas Company; that said corporation was engaged in the business of producing and selling natural gas; that upon - day of -, A. D.-, it was assessed an internal-revenue tax of fifty and 94/100 dollars, penalty two and 55/100 dollars, interest thirty-two months sixteen and 30/100 dollars, upon its gross receipts, which amount it afterwards, on the first day of August, A. D. 1903, paid to D. B. Heiner, Esq., collector of internal revenue for the 23rd district of Pennsylvania, and which amount, as this deponent verily believes, should be refunded for the following reasons, viz:
    “ 1st. The tax as levied is a direct tax upon gross receipts and is not uniformly apportioned; therefore the act is unconstitutional if so construed.
    
      “2d. The Fort Pitt Gas Co. is not engaged in any business which under the act of Congress makes it hable to tax upon its gross receipts, or upon any other receipts.
    “3rd. The Fort Pitt Gas Co. is not a pipe line company, is not engaged in the pipe line business; does not transport gas for hire or charge, and obtains no returns from transportation or carriage and has no gross receipts from its pipe lines.
    “ 4th. The Fort Pitt Gas Co. is engaged in the business of producing and selling natural gas; its pipe lines are only incidental to this business; no pipeage charge is made and no compensation is received from its pipe lines, nor is any amount allotted to pipeage or transportation.
    “5th. The gross receipts taxed and on which the tax has been paid are not from the pipe line, but from the production and sale of natural gas.
    “ 6th. The Fort Pitt Gas Co. is not engaged in any business subject to tax under the act of Congress in question.
    “7th. The Fort Pitt Gas Co. does not own a pipe line for the transportation of oil or other products within the meaning of the act of Congress in controversy.
    “8th. The act of Congress under which the tax was levied, as applied in this case, is unconstitutional.
    “9th. There is no warrant of law or act of Congress that authorizes the collection of tax paid.
    “And this deponent now claims that, by reason of the payment of the said sum of sixty-nine and 79/100 dollars, the said corporation is justly entitled to have the sum of sixty-nine and 79/100 dollars refunded, and it now asks and demands the same or such greater amount as the Commissioner of Internal Revenue may find to have been erroneously paid or to be refundable under remedial statutes. And this deponent further makes oath that he has not heretofore presented any claim for the refunding of the above amount or any part thereof, except under Form 47 for remission and abatement of said tax before the same was collected.
    “H. B. Beatty.
    “Sworn to and subscribed before me this 1st day of August, A. D. 1903.
    “J. M. Holliday, Notary Public.
    
    “deputy collector’s affidavit.
    “I, A. M. Cavitt, deputy collector, ——■— division, 23rd district, being duly sworn according to law, depose and say that I have personally investigated the statements made in the written affidavit, and from the best information I can obtain, after careful inquiry, I believe such, statements to be in all respects just and true.
    “This claim was received by me August 28th, 1903.
    “A. M. Cavitt,
    
      “Deputy Collector,
    
    
      “ — ■——Division,-— District.
    
    “Sworn to and subscribed before me this 28th day of Aug., A. D. 1903.
    “James A. Curry,
    
      “Dep. Coll.”
    
    On the back of the form furnished were “Instructions in regard to preparation of claim,” and so much of the instructions as is material here is as follows:
    “No. 9. When a claim for refunding is made on the ground of a duplicate assessment and payment, the collector will certify to the duplicate assessment and payment on Form 46, giving the full amount both of the assessment and of the payment, and will also give the page, list, and line, in each case.
    “The collector will, in all cases, insert in his certificate the full amount of the assessment, and not simply the amount claimed.”
    
    V. On April 29, 1907, the aforesaid application was reopened and the claim of $69.79 allowed by the Commissioner of Internal Revenue, and the same was subsequently paid.
    VI. On the 20th of November, 1906, a second application was made to the Commissioner of Internal Revenue, as follows:
    “To the honorable JOHN W. Yebkes,
    “ Commissioner of Internal Revenue,
    
    
      “ Washington, D. O.
    
    “Dear Sib: The Fort Pitt Gas Company respectfully represents:
    “1. That it is a corporation of the State of Pennsylvania, engaged in the business of producing and selling natural gas.
    “2. That it was assessed under section 27 of the act of Congress of June 13, 1898, known as the war revenue law, by your department, with an excise tax on its gross receipts for the months of April and May, 1900, amounting to the sum of $69.79; for the month of April, 1901, the sum of $144.65; for the months of May and June, 1901, the sum of $217.21; for the month of November, 1901, the sum of $34.73; for the months of December, 1901, and January, 1902, the sum of $432.41; and for the months of February, March, April, May, and June, 1902, the sum of $915.02, making a total amount so paid of $1,813.81.
    “3. That said company claimed it was not liable to said tax in that its business did not come within the provisions of said law, but that your department insisted upon payment being made and said company accordingly paid said tax under protest and immediately presented to your department and argued a claim for restitution of the amount so paid, which claim was, however, finally refused by your department on November 10, 1905.
    “4. That subsequently, in a case coming before the United States Circuit Court for the Northern District of Ohio, being the case of United States v. Northwestern Ohio Natural Gas Company, reported in 141 Federal Eeporter, page 198, it was decided by said court that a company engaged in the business of producing and buying natural gas which it conveys by means of pipes to a city where it distributes and sells the same to consumers, is not engaged in the business of transportation within the meaning of said act of Congress, nor subject to the tax therein provided.
    “5. That your petitioner is a natural gas company engaged in the business of transporting and selling natural gas to its consumers in the same manner as the said Northwestern Ohio Natural Gas Company; that it was during the period covered by said excise tax and prior thereto, and ever since has been, engaged in said business.
    “6. That the transportation by said company of natural gas has always been but an incident of its said business, being merely the transportation of its own product from the point of production to its consumers; and it has never transported gas or any other product for others or for hire, and has never had any income or.receipts from transportation; that it is not and has never been a pipe-line company, is not and has never been engaged in the pipe-line business; and that its gross receipts are and have always been obtained through the sale of the gas or oil produced by it.
    “7. That said company respectfully refers to and makes a part of this application the petition or claim filed in your department in the year 1903, after the payment by it of said excise tax.
    “Wherefore said company hereby makes application for the reopening of its said claim and prays that the said sum of $1,813.81, paid by it as aforesaid, be repaid to it.
    “Fort Pitt Gas Company,
    “By H. E: Seibert,
    
      “Assistant Treasurer.”
    
    
      This application was duly verified by affidavit.
    This application was denied May 22, 1907, by the Commissioner of Internal Revenue upon the grounds:
    “First. The application, if accepted and treated as a claim for refunding of taxes in addition to those assessed for April and May, 1900, was filed more than two years after payment and is barred under the limitation imposed under section 3228, Revised Statutes.
    “Second. It is apparent, therefore, that the original claim of the Fort Pitt Gas Company in the sum of $69.79 was for all taxes paid by said company which this office is authorized by law to refund.”
    
      Mr. Henry A. Baker for the plaintiff. Mr. F. B. Rhodes and Mr. Elbert Johnson were on the briefs.
    The statement of the Supreme Court in the Nichols case, 7 Wall., 122, to the effect that “cases arising under the revenue laws are not within the jurisdiction of the Court of Claims” is obiter dictum and is a broad general statement that must be construed in connection with the facts actually decided by the court in that case.
    The court in the Nichols case passed upon the act of February 26, 1845. This act provided that one paying an alleged illegally collected duty or tax must file a written protest, and the illegality of such tax was then tested by suit against the collector of customs. This remedy was the primary and only method of procedure set forth in the statute affording relief. In other words, such suit against the collector takes the same place with reference to custom revenue laws that an application for refund filed with the Commissioner of Internal Revenue under section 3220 R. S. occupies in the internal revenue law. The court goes on to say:
    “If the receipts from duties and internal revenue taxes paid into the Treasury were liable to be taken out of it on suits prosecuted in the Court of Claims for alleged errors and mistakes concerning which the officer charged with the collection and disbursement of the revenue had received no information, such a policy would be disastrous to the finances of the country, etc.” (Italics ours.)
    
      This decision in its broadest view, as applicable to existing internal revenue laws, is that a claimant can not disregard tbe remedy provided by section 3220 R. S., that is, an application for refund filed with the Commissioner of Internal Revenue, and sue in the Court of Claims direct. Congress has placed the same limitation by section 3226 R. S., providing that “no suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, etc., until appeal shall have been duly made to the Commissioner of Internal Revenue according to the provisions of law in that regard, etc., and a decision of the commissioner has been had therein, provided, that if such decision be delayed inore than six months, etc., then the said suit may be brought, etc., at any time within a period limited in the next section.”
    The claimant in this case has not disregarded the remedy provided by statute, and sued in the Court of Claims direct, as was done in the Nichols case. Here the claimant has pursued his statutory remedy to the end, has reached a decision of the Commissioner of Internal Revenue, arid now brings' this suit in the Court of Claims. Therefore, the citation from the Dooley case, 182 U. S., 225, in the defendant’s “Additional Memorandum and Argument,” that, “in the Nichols case it was held that as there was a remedy by action against the collector expressly provided by statute, that remedy was exclusive,” is very miselading.
    The Sybrandt case, 19 C. C., 461, the Corning case, 34 C. C., 271, and the Edison Electric Company case, 34 C. C., 208, all hold, not that the decision of the Commissioner of the Internal Revenue is final and conclusive as to the courts, but that such decision is final and conclusive as to the accounting officers of the Treasury Department.- That Congress never intended the decision of the Commissioner of Internal Revenue to be final and conclusive as to the courts is perfectly apparent from the language of section 3226, which says in effect that no suit shall be maintained in any court until after a decision of the Commissioner of Internal Revenue has been had. In other words, that after a decision of the Commissioner of Internal Revenue has been had, suit may be maintained in any court, that is, any court of competent jurisdiction.
    The case of Cheesborough v. The United States, 192 U. S., 253, was a claim against the United States for refund of an alleged illegally collected tax (internal revenue) under the provisions of section 3220, R. S., the identical “law of Congress” relied upon by claimant in this case. The court assumed jurisdiction and decided the matter upon its merits, holding the payment of the tax to have been voluntary, and that therefore claimant could not recover.
    The Supreme Court has uniformly and emphatically held that its jurisdiction will be examined and raised by the court without such question being raised by the pleading.
    Mr. Justice Matthews, delivering the opinion of the court in Railway Company v. Swan, 111 U. S., 382, said:
    “On their writ of error or appeal the first and fundamental question is that of jurisdiction, first, of this court and then of the court from which the record comes. This question the court is bound to ask and answer for itself even when not otherwise suggested and without respect to the relation of the parties to it.”
    Mr. Justice Harlan, delivering the opinion of the court in Metcalf v. Watertown, 128 U. S., 587, said:
    “Whether that court had or had not jurisdiction is a question which we must examine and determine even if the parties forbear to make it or consent that the case be considered upon its merits.” See also Scott v. Sanford, 19 How., 429; Cameron v. Hodges, 127 U. S., 325; Holt v. United States, 176 U. S., 71.
    The case of the United States v. The Cuba Mail Steamship Company, 200 U. S., 488, is a suit by the company against the United States for refund of an alleged illegally collected internal-revenue tax founded upon the act of May 12, 1900, superseding section 3426, R. S. In this case the Supreme Court assumed jurisdiction and decided the case upon its merits. Such a claim founded upon section 3426, R. S., is as much part of the internal-revenue system as one founded upon section 3220, R. S. See Dooley case, 34 C. C., 469.
    
      
      Mr. George M. Anderson, with, whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   Campbell, Chief Justice,

delivered the opinion of the court:

Suit is brought to recover certain taxes assessed and paid under the provisions of section 27 of the war revenue act of 1898. The claim is that by reason of the character of claimant’s business the taxes were wrongfully or unlawfully collected and should be repaid.

There was assessed against claimant upon the August list, 1900, for the months of April and May of that year by the proper internal-revenue collector upon its gross receipts in excess of $250,000 the sum of $50.93, which, together with the added penalty and interest of $18.85, or a total of $69.78, was paid on August 1, 1903, under protest to the collector. There were also assessments against claimant by the assessment lists during 1901 and up to and including June, 1902, and payments thereof made in the aggregate sum of $2,299.04. xhe times of the several payments by claimant, other than the payment first mentioned above, are not shown by the evidence.

The claimant having paid on August 1, 1903, said sum of $69.78 (tax penalty and interest), filed its application with the Commissioner of Internal Revenue, praying that the same be refunded. This application was filed August 28, 1903, and was disallowed by the commissioner on November 10, 1905. Something more than a year thereafter (November 20, 1906) claimant filed a second application with the commissioner, wherein is set forth a number of payments of taxes paid by claimant, amounting, as therein stated, to $1,813.81, and its former application, which had been disallowed as aforesaid, is referred to and made “ a part of this application.”

The claimant thereupon “makes application for the reopening of its said claims” and prays that said sum of $1,813.81 be repaid to it.

The commissioner’s action upon this second application was on May 22, 1907, when he allowed the claim to the extent of $69.78, being the amount named in the first application, and denied the balance upon the ground that the application was not made within the time prescribed by section 3228, Revised Statutes.

The war revenue act of 1898 in large measure, and particularly section 27 thereof, was repealed by the act of April 12, 1902, effective July 1, 1902, 32 Stat. L., 99, more than one year before the alleged date of the payment of the tax penalty and interest upon which the first application to the commissioner was predicated in August, 1903. The method used to collect this tax penalty and interest, $69.78, nearly three years- after its assessment for the months of April and May, 1900, and more than one year after the repeal of the law under which it was assessed is not apparent from the record, but the commissioner found that no application for a refund of the other payments was made in time and it appearing that no penalty or interest was collected upon the assessments made subsequent to that for April and May, 1900, it is to be inferred that all of the payments of the tax (except the $69.78) were made when they respectively became due, which was during 1901 and 1902. But the case is not altered in our view if all the payments were made in August, 1903. Sections 3220 et seq., Revised Statutes, provide a method whereby taxes wrongfully exacted or collected may be refunded or suit brought therefor. Section 3228 provides that claims for refundment of “ any internal-revenue tax alleged to have been erroneously or illegally assessed or collected without authority or of any sum alleged to have been excessive or in any manner wrongfully collected must be presented to the Commissioner of Internal Revenue within two years next after the cause of action accrues.”

Section 3227 provides that no suit shall be maintained "in any court” for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or in any manner wrongfully collected, “unless the same is brought within two years next after the cause of action accrued.”

Section 3226 provides for an appeal to be made to the Commissioner of Internal Revenue, “according to the provisions of law in that regard and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the commissioner has been had therein: Provided, That if such decision is delayed more than six months from the date of such appeal, then the said suit may be brought, without first having a decision of the commissioner, at any time within the period limited,” by section 3227.

As to the nature of the appeal contemplated by section 3226, we refer in this connection to the Chesebrough case, 192 U. S., 253, 263.

The general statute of limitations of actions in this court, sec. 156, Judicial Code, prescribes that á claim is barred unless the petition be-filed “within six years after the claim first accrues.” This statute, fixing a rule applicable to cases generally, is not necessarily inconsistent with the sections of the Kevised Statutes above mentioned, which fix the limitation for a particular class of cases “in any court.” Statutes in pari materia are to be construed together, and repeals by implication are not favored if the acts can reasonably stand together. The Distilled Spirits, 11 Wall., 365; State v. Stoll, 17 Wall., 425, 436; Rodgers’ Case, 36 C. Cls., 266; 185 U. S., 83; Petri v. Creelman Lumber Co., 199 U. S., 487, 497. “The general statute is read as silently excluding from its operation the cases which have been provided for by the special one.” Endlich Inter. Stat., sec. 223. We deem it unnecessary to decide the question as to whether a suit can be brought in this court under the statute applicable to this court or should be brought in the class of cases under consideration against the collector, because, under the view we take, the claimant’s cause of action is barred, even if the court have jurisdiction of such a suit brought in time. We hold that the limitation fixed by section 3227, Revised Statutes, is applicable and not the six-year limitation of section 156, Judicial Code. Christie-Street Com. Co. v. United States, 129 Fed., 506; 136 Fed., 326; Schwarzchild-Sulzberger & Co. v. Rucker, collector, 143 Fed., 656.

The cases of James v. Hicks, 110 U. S., 272, and Stewart v. Barnes, 153 U. S. 456, to which we have been referred by counsel, are not opposed to the view we have taken. In .the first of these cases the cause of action arose prior to the act of June 6, 1872, now sec. 3227, New. Stat., and came within the saving clause of the proviso in section 3227. Similarly, the second of said cases involved taxes paid in 1869 and was within the proviso of said section 3227. If the claimant could wait for a decision by the commissioner upon his application, it yet appears that the first application, filed August 28, 1903, was rejected by the commissioner November 10, 1905, and no action was brought in this court within two years thereafter. A second application was made to the commissioner in November, 1906, to reopen the case, and this second application was in part granted on April, 29, 1907, but this application or the granting of it did not have the effect of suspending the running of the limitation plainly fixed by the statute. The commissioner had rendered his decision, and whether the cause of action accrued at the end of six months from August 28, 1903, as we hold it did, or at the date of the decision by the commissioner, in November, 1905, the action here is not in time.

It follows that the petition should be dismissed, and it is so ordered.  