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ity “to demand and accept money in lieu of the stamps that are required by law to be affixed.” The case of Savings Bank v. United States was not called to the court's attention, nor was reference made to section 31 of the act.

In both the Lyman and Meredith Cases, supra, holding that duties were recoverable by the government in an action of debt, significance was attached to the employment in the act imposing the duties of the phrase "there shall be levied, collected and paid." The same phrase is found in that part of the war revenue act now under discussion which relates to the documents, instruments, etc., of Schedule A. In other words, Congress enacted that there shall be "levied, collected and paid for and in respect of” those documents and instruments "the several taxes or sums of money set down in figures against the same respectively." I apprehend that it is a matter of no importance at all to the question before us that for convenience in the administration of the law provision was made that the person liable to pay the money was authorized to do so by purchasing, affixing, and canceling stamps. That is an administrative detail quite useful in giving evidence of compliance with the law, but having no bearing upon the inherent nature of the tax or upon the remedies of the government for default in payment. Nor does it signify anything to say that a tax or other due, duty, or obligation is a debt, or that it is not a debt, unless we are given to know the text in which the term "debt" appears. Debt has a range of meaning from the narrowest to the widest, both in the law and out of it. The text determines. Thus, a tax may be a debt within statutes concerning bankruptcy, insolvency, and the administration of estates of deceased persons, and yet not so in those relating to set-off and legal tender. That in a broad sense a tax is a debt has been recognized ever since the days of Blackstone, who said:

“Whatever, therefore, the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge." 3 Bl. Com. 158.

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Again, I think it is quite clear that actions at law as means of collecting the taxes levied were expressly adopted by the war revenue act. That act imposed increased taxes upon fermented liquors, taxes termed by Congress "special taxes" on the occupations of bankers, brokers, and the like, additional taxes on tobaccos and dealers and manufacturers thereof, taxes in respect of the documents, etc., mentioned in Schedule A, and the medicines, etc., in Schedule B. It also imposed what were termed "excise taxes” on those engaged in refining petroleum and sugar, also taxes on the transmission of legacies and distributive shares of personal property and upon various other subjects of taxation. Section 31 of the act is as follows:

"That all administrative, special or stamp provisions of law, including the laws in relation to the assessment of taxes not heretofore specifically repealed are hereby made applicable to this act.”

I think that my associates are in error in saying that this section is under the heading "Legacies and Distributive Shares of Personal Property"; the inference suggested being that the section should be confined in its operation to the subject-matter of that heading. The er

ror in this seems manifest from the reading of the section itself. By the very terms of section 31 pre-existing provisions of law were made applicable to the entire war revenue act, and not merely to the preceding sections 29 and 30, which deal with legacies and distributive shares of personal property. If this method of construction is applied to other portions of the act, it must with equal reason be said that section 28 comes under the heading “Excise Taxes on Persons, Firms, Companies and Corporations Engaged in Refining Petroleum and Sugar," and is so confined in its operation; yet section 28 merely imposes a tax on every seat sold in a palace or parlor car and every berth sold in a sleeping car. At the time of the passage of this act there had existed for many years a comprehensive scheme for the collection of taxes constituting a machinery thoroughly familiar to the officers charged with its operation and to a great extent illumined by the decisions of the courts and the rulings of administrative officials. Among those provisions is section 3213 of the Revised Statutes, under the title "Internal Revenue,” which provides, among other things, that taxes may be sued for and recovered in the name of the United States in any proper form of action before any Circuit or District Court of the United States for the district within which the liability to such tax is incurred or where the tax debtor resides. This provision has been upon the statute books ever since 1866. The revenue act of 1864 (13 Stat. 236, c. 173) levied stamp taxes similar to those of the act now before us. Section 41 authorized actions for the recovery of fines, penalties, and forfeitures prescribed by that act. The act of 1866 (14 Stat. 110, c. 184) left the stamp taxes in force, but amended section 41 so that the right of action extended to fines, penalties, and forfeitures prescribed by any law and also to the taxes themselves. So, as the law stood in 1866, there were stamp taxes like that in the case before us, and the government might sue for their recovery. Some years afterwards the sections imposing the stamp taxes were repealed, but the remedy applicable to all taxes has remained to this day. Then in 1898 the war revenue act restored the stamp taxes. Can there be much doubt that without express provision the old general remedy for the recovery of all taxes applied to those imposed by the new act? Can there be any doubt whatever that to make the matter certain Congress inserted section 31 ?

When the bill that became the war revenue act was called up for consideration in the House of Representatives April 27, 1898, Mr. Dingley, who had charge of it, said, in explaining its scope and purport, that they had restored the adhesive stamp tax which existed from 1864 to 1872, placing it in large part on the basis of the old law as it stood in 1866, with certain additions (31 Cong. Rec. part 5, p. 4298). It seems to me altogether clear that by section 31 it was the intention of Congress to expressly adopt this old provision as part of the machinery for the enforcement of the taxes then levied. It made applicable to the act all "administrative provisions of law," and if section 3213, Rev. St., is not an administrative provision, what is it? When we speak of laws relating to the administration of estates, we include laws prescribing the methods and remedies for the collection of the assets and their distribution and the powers of officers in connection therewith. When we speak of administrative provisions of law in respect of taxes, I think we naturally include all those granting powers to executive officials and providing ways and means for collection. That this result was in the mind of Congress I have little doubt. Mr. Dingley also said in explaining the general scope of the bill:

“These taxes have been selected, first, because we have the machinery for the collection of them now, and they can be collected with but slight additions to the force and with but slight increase of expense. We have selected them, also, because they were a source of revenue successfully seized upon during the Civil War," etc. 31 Cong. Rec. p. 4297.

These same ideas were repeated during the progress of the bill until it finally was enacted into law. I am unable to see why the repeal in 1902 of the provisions imposing taxes on the transmission of legacies and inheritances and the retention of the machinery for the collection of those already accrued is of significance in this case. The liability for accrued taxes in respect of conveyances still remained, and so did section 31 of the act, and also section 3213 of the Revised Statutes of 1878. Those sections were not repealed. Nor can I perceive any relevancy in other acts of Congress which provide that the taxes imposed should be in addition to fines, penalties, and forfeitures prescribed for violation of particular commands of those acts, unless it is claimed that the absence of such provision in respect of the stamp taxes of the war revenue act is an argument that Congress intended that the payment of a fine under that act should operate as a payment of the tax and a release from further liability. I think that a statement of this argument is its refutation. No imprisonment was prescribed in the war revenue act for failure to stamp, except when accompanied by an intent to evade the provisions of the act. No such intent is charged in this case. That some states deny the power of Congress to disqualify an unstamped instrument as evidence was known when the act was passed, and the inefficacy of such a disqualification as a coercive means was apparent.

So much for the "fines, penalties and forfeitures" which it is claimed constitute the sole means of insuring payment of these taxes. It would be strange that Congress should so intend when it was endeavoring to provide the government with means vitally necessary for the conduct of a war—that it should not give the government the simple remedies which every individual has for the collection of a debt. If Congress has power to enact that a tax shall be levied, collected, and paid, and it does so enact, there is nothing so unusual or oppressive in an action for the recovery of the tax that such remedy should be denied, and it should not be denied, unless it is evident that it was the legislative intent to limit the means of enforcement to the penal provisions of the act.

(156 Fed. 897.)



(Circuit Court of Appeals, Eighth Circuit. October 21, 1907.)

Nos. 2,485, 2,436.


In cases of doubt and uncertainty as to the meaning of a compiled or revised statute, resort may properly be had to the original enactments.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, $ 312.] 2. CONSPIRACY--FEDERAL STATUTE-CONSTRUCTION.

In Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), relating to conspiracies, the words “offenses against the United States” have the same meaning as the words “offenses against the laws of the United States" in the original act of March 2, 1867 (14 Stat. 484, c. 169) the change being merely one of phraseology made by the revision commission, and such section denounces conspiracies to commit offenses created by any of the statutes

of the United States. 3. SAME.

A defendant may be prosecuted under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), for a conspiracy to violate a criminal or penal statute of the United States, notwithstanding the fact that the punishment prescribed for the offense created by such statute is less than that prescribed for conspiracy; the conspiracy in itself being a distinct and substantive



A conspiracy to induce the giving or receiving of rebates in violation of the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]), is punishable under Rev. St. $ 5440 [U. S. Comp. St. 1901, p. 3676), where the persons charged are not limited to the giver and

receiver of the rebate alone. 5. SAME--INDICTMENT-DESCRIPTION OF OFFENSE.

In an indictment under Rev. St. $ 5140 [U. S. Comp. St. 1901, p. 3676), for a conspiracy to commit an offense against the United States, all facts necessary to constitute the conspiracy, including the overt act, must be averred with all the particularity required in criminal pleadings, but no high degree of particularity is required in describing the offense to which the conspiracy relates which is necessarily defined by the statute. So, where an indictment charged a conspiracy to induce a shipper to receive rebates from railroad companies in violation of the federal statute, it was not essential to aver the names of such railroad companies which were

not known to the grand jury. 6. CRIMINAL LAW-EVIDENCE-ACTS OF CO-CONSPIRATORS.

On the trial of defendants charged with having conspired with a person named and with others to the grand jurors unknown to induce a partnership to accept rebates from railroad companies on shipments in violation of the interstate commerce law, where there was evidence tending to establish the conspiracy, and that the arrangement for the illegal rebates was made between defendants and one member of such partnership, entries in a private memorandum book kept by such partner, showing sums received as "freight commissions" and distributed between the partners individually, which transactions did not appear on the books of the firm, were admissible in evidence.

[Ed. Note.-Admissibility on trial of joint indictments of acts and declarations of conspirators and codefendants after accomplishment of object, see note to Sorenson v. United States, 74 C. C. A. 472.)


On such trial also evidence of contemporaneous contracts made by defendants with other large shippers, similar in all respects to that made with the partnership named, and that such shippers also received sums of money indirectly which they understood to come from defendants, and to be in fact rebates, was admissible on the question of intent and motive in the transaction charged in the indictment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law,


One who comes into a conspiracy after it has been formed, with knowledge of its existence, and with a purpose of forwarding its designs, is equally as guilty as though he had participated in its original formation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Conspiracy, $ 76.] 9. CRIMINAL LAW-FORMER JEOPARDY-IDENTITY OF OFFENSES.

The acquittal of defendants on one of two indictments consolidated for the purpose of trial is not a bar to a conviction on the other where the offenses charged are distinct in point of law, although the same facts

may have been relied on to a great extent in each case. 10. SAME-TRIAL-INSTRUCTIONS.

In a criminal case, the refusal of a requested instruction that defendant is presumed innocent, and that such presumption remains until overcome by the proof, is reversible error, notwithstanding the giving of a proper instruction on the subject of reasonable doubt. In Error to the District Court of the United States for the Western District of Missouri.

See 145 Fed. 74.
Hale Holden, H. C: Timmonds, and John N. Baldwin (O. M. Spen-
cer, O. H. Dean, and W. D. McLeod, on the brief), for plaintiffs
in error.

A. S. Van Valkenburgh, for defendant in error.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.

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ADAMS, Circuit Judge. An indictment was found in the court below charging defendants Thomas and Taggart with conspiring with one George A. Barton, a member of the firm of Barton Bros., of Kansas City, Mo., and others to the grand jurors unknown, to commit an offense against the United States by getting that firm, which was engaged in the business of making large shipments of merchandise from New York and New Jersey to Kansas City, Mo., to accept and receive rebates and concessions from divers railroads engaged in transportation of interstate commerce between those places, in violation of the interstate commerce acts, and particularly Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880], known as the "Elkins Act.' Another indictment was found in the same court and at the same time against Thomas and Taggart and one Crosby, charging them with conspiring to commit an offense against the United States by getting the Chicago, Burlington & Quincy Railroad Company, a corporation operating a railroad engaged in the transportation of interstate commerce, to offer, grant, and give rebates, concessions, and discriminations to divers favored persons and corporations engaged in interstate commerce, and particularly to such persons or corporations in Kansas City as were engaged in shipping goods from New

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