AM. UNION TELEGRAPH 00. V. BELL TELEPHONB
ao. 699
TREAT, I. To have the jurisdictional question tested, the order to show cause issued in this case; a.nd now, on the motion to discharge said order, the court is to determine whether, by force of the act of 1875, the powers not theretofore existing as to an original proceeding for mandamus have been granted. All the decisions prior to that act, it is conceded, denied such jurisdiction in the United States circuit courts j but it is contended that the act of 1875 not only enlarged the jurisdiction as to parties, but also as to the subject-matter and forms or modes of proceeding. The language invoked is that said courts "shall have original cognizance, etc., of all suits of a. civil nature a.t common law or in equity." There still remain: on the statute book sections 629 and 716, which are Bubstantially a reproduction of sections 11 and 14 of the judiciary act, (1789,) unless their restrictions are repealed by the act of 1875. The latter enlarged the jurisdiction as to parties, but used the same ianguage as liO the nature of the suits which had prevailed since 1789, viz.: ..All suits of a civil nature, at common law or in equity," under which the United States supreme court has uniformly held that, taken in connection with section 14 of the original act-now 716 of the Revised Statutes-the power claimed did not exist. It is held, therefore, that the United States circuit courts have not, under the statutes of 1875, any other jurisdiction in mandamus proceedings than theretofore existed. The same reasons that caused congress originally to withhold the authority exist more forcibly to-day, growing out of the large multiplica.tion of offices and corporations. The motion to discharge tha order is granted. If the parties wish to further taRt the question a demurrer to the jurisdiction may be intorposed and sustained.
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TOO
FEDERAL REPORTER.
UNITlm STATES fl. LITTLE MIAMI, COLUMBUS & XeNIA RAILROAD COMPANY.
(Circuit Court, 8. D. Ohio.
March, 1880,)
INTERNAl, EEVENUE-ACT OF JUNE 30, 1864-AcTION TO RECOVER TAXES WITHOUT AN ASSESSMENT.-An action of debt may be maintained to recover taxes without an assessment, where the statute describes the ,ubject of the taxes and fixes the rates, so tlJat the amount may be ascertained by evidence. &ME-ASSEssMENT MADE AND PAID-SUBSEQUENT SUIT FOR BALANClI BEYOND ASSESBMENT.-An assessment and payment are not a bar to a suit for the recovery of an amount claimed to be due over and above th.· amount which has been thus assessed and paid, BAME-CORPORATION-STATUTE OF LIMITATIONs.-The limitation of 115 months within which an assessment may be mad8 has no application to an action against a corporation for taxes imposed by statute. RAILROAD OORPORATION-LEASE.-The lease of a railroad does not dissolve such corporation, and it may still be sued for liabilities incurred prior to such le11se. SAME-DEPRECIATION OF ASSETB-DEDUC1'ION FROM PROFITs.-The depreciation of assets during a certain period cannot be deducted from profits earned during the same period, in determining the taxable of a railroad corporation under the act of June 30, 1864.
Channing Richards, District Attorney, for the United States. Stanley Matthews, for defendant. SWING, J. This suit was brought by the United States to recover thQ tax of 5 per cent. imposed by the internal revenue act of June 30, 1864, upon profits earnod frorn the first of July, 1864, to the first of Decernber, 1869, and used in construction, or carried to the credit of certain funds. It was clairned by the United States that the defendant has earned profits which were so used during that period amounting to $326,000, on which no tax was paid. The defences were: First, that returns were made eaoh year, and accepted by the government, upon which taxes were assessed and paid; that no assessment has been rnade for the a.dditional amounts now claimed, and if there were errors and omissions in the returns they cannot now be corrected, nor can the taxes now be recovered without an assessment; second, that the defendant in fact paid taxes on all profits made
l1NITED STATES tJ. L. M., C. '" X. R. 00.
701
during the period in question, and that the profits shown by their books during that period, on which tax is claimed, are fully wiped out by certain items charged to profit and 1081 in 1869. The court disposed of the first defence as follows: An action of debt may be maintained to recover taxes, without an assessment, where the statute describes the subject of. the taxes and fixes the rates so that the amount may be ascertained by evidence. Dollar Savings Bank v. U. S. 19 Wall. 227; King v. U. S. 99 U. S. 229; The U. S. v. S. J. Tilden, 24 Int. Rev. Rec. 99. Nor will the fact that an assessment has been made and paid be a bar to a suit for the recovery of an amount claimed to' due over and above the amount which has been assessed and paid U. S. v. Hazal'd, 22 Int. Rev. Rec. 809; U. S. v. S. J. Tilden, 24 Int. Rev. Bec. 99. The tax imposed by section 122 of the statute, although substantially a tax upon the stockholder, so far as its effects and results are concerned, yet the obligation to pay the tax, is by this section imposed upon the corporation, and this would seem to be the view entertained by the supreme court of the United States in the Michigan Central R. Co. v. Slack, Collector, 26 Int. Rev. Rec. 60. This being an action against the corporation for taxes imposed by statute, and not upon an assessment for taxes, the limitation of 15 months within which an assessment may be made does not apply; and congress not having fixed & time within which an action of this character shall be brought, "no laches can be imputed to the government, and against it no time can run so as to bar its rights." The U. S. v. Thompson, 98 U. S. 486; The U. S. v. Kirkpatrick, 9 Wheat.; The U. S. v. Williams, 5 McLean, 133. It is not necessary now to consider the effect of the lease by the defendant to the Pennsylvania Central & St. Louis Railway and the Pennsylvania Railroad Company further than to say tha.t such lease did not dissolve the corporation. and it may still be sued for liabilities incurred prior to such leuG. But wheth9r the property ca.n be Bubjected to the
