of an executive department . in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, of the United States were suable . Although there seems to be no question that the court has jurisdiction of a claim allowed by the Commissioner, payment of which is refused by the accounting officers of the Government, the Government has contended that the court does not have jurisdiction of suits for income taxes, in cases where claims for refund have been denied. This contention appears to be entirely unsound, in view of the language of the statute. The court has recently asserted its jurisdiction in Betts v. U. S. (Ct. Cls., Feb. 1, 1926.) (See page 373.) Pleadings Commencement of suit-Petition.—A suit in this court differs in many respects from the ordinary suit in courts of common law jurisdiction. It is commenced by a petition, verified by the claimant and filed in the office of the clerk of the court, with one extra copy. When the petition is filed, the clerk causes a copy to be forwarded to the Attorney General. The petition must set forth the title of the action, a plain and concise statement of facts, giving venue and date, free from argumentative, irrelevant and impertinent matter. If the claim is founded upon an Act of Congress, or upon a regulation of an executive department, the act or the section thereof upon which the claimant relies, must be specified, and the particular regulation of the department must be stated in terms. Claimant must also set forth in his petition what action, if any, has been had on the claim in Congress, or in any of the departments; what persons as the owners are interested in the claim, when and upon what consideration such persons became so interested; that no assignment or transfer of the claim, or any part thereof, has been made, except as stated in the petition; that the claimant is justly entitled to the amount therein claimed from the United States, after allowing all just credits and offsets, and (where the claim has been assigned), the original, and every prior owner thereof; if a citizen, that he has at all times borne true allegiance to the government of the United States, and whether a citizen or not, has not in any way voluntarily aided, abetted, "See Edison Elec. Co. v. U. S., 38 Ct. Cls. 208. or given encouragement to rebellion against the government; and that claimant believes the allegations of the petition to be true.9 Demurrer, answer, or counterclaim.-The Government may, within sixty days after the filing of the petition, either file its answer, or may raise an issue of law as to the sufficiency of the petition by filing a demurrer. If the demurrer be sustained by the court, judgment will be rendered dismissing the petition, unless the court makes an order permitting the claimant to amend the petition. If the demurrer be overruled, the government may, as a matter of right, then file an answer within such time as the court may direct.10 Where the government files a set-off or counterclaim, the claimant may answer the counterclaim by replication which must be under oath, and which must be filed within three months from the date of filing the set off or counterclaim.11 Practice Taking testimony.-After the various pleadings have been filed, and the parties are at issue, either party may proceed to take testimony. It is unusual for a witness to testify orally before the court in a suit in the Court of Claims, and such procedure can only be followed where the court so orders. In all other cases the testimony must be taken by deposition either before a Commissioner of the Court, a Judge of a Court of the United States, a Judge of a Court of Record in a state or territory of the United States, a United States Commissioner, or a notary public.12 The testimony is taken on fifteen days' notice by the party proposing to take the deposition to the adverse party or his attorney. This notice must be in writing, and state the names of the witnesses to be examined, the time and place of the examination, and if practicable, the name of the officer before whom the deposition is to be taken.13 At the time stated in the notice, the witnesses, after being sworn, are examined, the questions and answers are reduced to writing, the testimony of the witnesses when completed is read over to him, and is signed by him in the presence of the presiding officer. The officer, after signing the Judicial Code, section 159. 10 Rules 29, 30 and 31, Court of Claims. testimony himself, must enclose the deposition in a packet under his seal, and forward it to the clerk of the court. Hearing before Commissioner.-In 1925 Congress enacted a law which permitted the Court of Claims to appoint Commissioners for the purpose of hearing testimony and making and reporting to the court findings of fact in cases which should be referred to such commissioners by the court.14 In cases which are referred to a commissioner under this act, the procedure differs from the ordinary case in the Court of Claims. The Commissioner fixes the time for hearing, notifies the parties thereof, administers oaths to witnesses, examines the witnesses, and receives the evidence. Subpoenas to compel the attendance of witnesses or the production of testimony before the Commissioner may be issued by the clerk of the court and are served by a United States Marshal. On the hearing the Commissioner rules upon the relevancy and admissibility of any evidence offered, and when he has concluded taking the testimony, makes a report of the facts as found by him to the court, and files with the report the facts adduced by the parties. When the Commissioner's report is filed, the clerk mails notice of the filing to the parties and each party has thirty days from the date of filing to file exception to the report. The exceptions must contain appropriate references to the parts of the record relied upon to sustain them. Briefs. If the hearing has been held before a Commissioner the plaintiff, after the exceptions are filed, may, if he so desires, have fifteen days within which to file a brief and the defendant then has fifteen days after the filing of the plaintiff's brief within which to file his brief. When the Commissioner files his report, the case is put upon the trial calendar. If the testimony has been taken orally before the court, or by deposition, the claimant must, within sixty days after concluding the taking of testimony, file in the clerk's office his request for findings of fact, and his brief.15 Thereupon notice of such filing is given the Attorney General, who has sixty days to file his objections to the claimant's request for findings of fact together with his request for other or additional findings of fact, and his brief. Statements 14 U. S. Comp. Stat. 1925, Supp. section 1154 (a). 15 Rule 73, Court of Claims. of fact, or propositions of law presented in the defendant's brief as a matter of defence, and which would not properly come within the scope of the claimant's original brief, may be discussed by the claimant in a reply brief, which must be filed within thirty days after the date of the mailing of notice of the filing of the defendant's brief.16 When both sides have filed their briefs, the court clerk prepares, in book form, a printed record of the case, consisting of pleadings, evidence and requests for findings of facts and briefs. When this has been done, the case is ready for argument.17 The parties then may, by stipulation, either submit their case to the consideration of the court, without oral argument, or may have it placed upon the calendar and argue it orally before the court. Nature of proceeding.—Since the proceeding in the Court of Claims is original and not appellate, the question before the court in any case is whether on the facts properly established the claimant is entitled to recover as a matter of law. Consequently, the action of the Commissioner or the evidence before the Treasury is of no moment as such, but must be proved anew before the court. In several instances attempts have been made by the Government to limit the jurisdiction of the Court of Claims. In the case of Erskine Hewitt v. U. S. (Ct. Cls. May 26, 1924) the contention was made that, the duties of the Commissioner in tax matters being discretionary, his decisions were not subject to review. Lack of protest was assigned as a second reason for non-jurisdiction. The demurrers interposed by the government were overruled. In this and like cases 18 it was ruled: 1. This ruling is without prejudice to the presentation of any and all legal questions involved on the coming in of proof. 2. The court is inclined to the view that the Commissioner's findings in tax cases are conclusive as to the facts. As the author predicted last year, the court later reconsidered its opinion as to the second point. In Betts v. U. S. (Ct. Cls. Feb. 1, 1926) the court went out of its way to state, with respect to this ruling: 18 Rule 76, Court of Claims. 17 Rule 86, Court of Claims. 18 Waialua Agriculture Co. Ltd. v. U. S. (61 Ct. Cls, 1036); Flannery v. U.S. (59 Ct. Cls. 719); Texas Pacific Coal & Oil Co. v. Ụ. S. (59 Ct. Cls. 984). DECISION. Nothing then said had any reference to his conclusions of law or deductions from the facts. This court has jurisdiction in tax cases to find the facts and apply to them the laws and so far as the expression quoted can be supposed to qualify this unquestionable right and duty, it must be regarded as overruled. Review. All judgments and decrees of the Court of Claims may only be reviewed by the United States Supreme Court upon I writ of certiorari, 19 which is not obtainable as of right. (See page 380.) The District Courts The United States District Courts have original jurisdiction of suits by taxpayers to recover taxes alleged to have been erroneously or illegally assessed or collected, or penalties claimed to have been collected without authority. Suits against the collector-Jurisdiction.— LAW. Section 24. [Judicial Code.] The district courts shall have original jurisdiction as follows: (5) Of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the Court of Customs Appeals This jurisdiction is not limited as to the amount involved.20 The suit must be brought against the collector who collected the taxes involved. It is immaterial whether or not he is still in office. These questions were presented to the Supreme Court in Smietanka v. Indiana Steel Co. (257 U. S. 1). DECISION. 1. Assuming that the declaration states a good cause of action had the suit been brought against S. M. Fitch, the internal revenue collector who actually collected and received the taxes, does it state any cause of action whatever against said S. M. Fitch's successor in office, the plaintiff in error, against whom the suit was brought, but who had no participation in the collection, receipt, or disbursement of such taxes? 2. May suit in the District Court of the United States properly be brought and maintained against a United States collector of internal revenue for the recovery of the amount of a United States internal revenue tax, unlawfully assessed and collected, but in the collection and disbursement of which such collector had no agency, the entire transaction of such assessment, collection, and disbursement having occurred during the incumbency of such office of a predecessor in office of such collector? 10 Act of February 13, 1925, Ch. 229, section 3. 20 See Accardo v. Fontenot, 269 Fed. 447. |