ter. But it authorizes certain persons called assessors, to ascertain what individuals are liable to the tax. The function of the assessor is judicial; he investigates, makes inquiry, and then determines what persons are liable to tax, and the amount of tax for which they are liable. When this amount is thus ascertained, or in other words, when the person is assessed, he owes to the State a sum certain. Take the subject of tax title; where is the man so bold as to assert that a tax title would be valid without an assessment of the tax on the land or its owner? or to assert that the passage of a law imposing a tax of one per cent. on the value of all land, was a valid assessment by the law of a tax on a particular piece of land, and that an action of debt could be maintained for that land tax, without an assessment? The law imposes a tax on ships, or vessels, of a certain sum, five or ten dollars, a specific tax which is to be paid by the owner. Is that an assessment of a tax on John Smith, who owned the vessel at the time. the law was passed, or on Walter Brown, who owned the property on the day the law fixed for the assessment of the tax? It is true the law fixed the tax, but it did not ascertain who was the owner. The ascertainment of that fact is left to an officer, who exercises judicial functions, an assessor, and he ascertains and determines who is to pay the tax. This ascertainment is the assessment. It is just as material a matter in the validity of the tax as the levy of the tax by the legislature, and is of the very essence of the tax.

In the State of Texas, where the Constitution provides that the tax on land shall be a lien, to be enforced by suit, it is held that an assessment is essential. The tax cannot be enforced until that is done, nor can the value of the land be shown in a suit for taxes. The court say, "The levy and assessment of a property tax involves the exercise of separate and distinct powers and duties; the first is strictly legislative in its character, the latter to a great extent judicial. The levy is usually made by a charge of a definite amount per cent. upon the value of the property liable, and then the amount to be paid by the citizen is ascertained by the assessment of the given per cent. on the property subject to it, by the officer, at the time and in the manner provided by law for its assessment." 1 The doctrine in Texas does not extend to a specific tax on an occupation, which is required to be paid before commencing business. In such a case suit may be brought without placing the name of the party on the tax roll. The party,

1 Clegg v. State, 42 Texas, 605; citing Showalter v. Brown, 35 Miss. 423; People v. Hastings, 29 Cal. 449; Middleton v. Bertin, 18 Conn. 189. See also Morton v. Comptroller Gen'l, 4 S. Car. 430, for distinction between levy and assessment, and Cooley on Taxation, 258, 259.

by engaging in the business, in substance makes an assessment upon himself.1

In Pennsylvania, an act was passed requiring the owners of ore beds to pay one and a half cents on every ton of ore mined and carried over the public road in the township of Saucon, payments to be made every six months, and in default the amount unpaid was to be collected as like amounts are collected by law. This tax was allowed to be enforced without an assessment." Justice Agnew dissented in a very able opinion, in which he demonstrates the invalidity of such a tax, claiming that such an act does not provide "due process of law” to ascertain the duty of the citizen. "The law furnishes the rate, but it is only the measure of the tax when applied to the subject of taxation. As to each citizen, his tax is not laid until the subject is ascertained and the rate applied to it. * * * It is too clear for argument, that the tax of the individual is the result of the rate applied to the subjects of taxation which belong to him, and consequently, that he is not taxed until the rate is applied to his property by some legal mode of adjustment. Then it is equally clear, that until his tax is legally adjusted, no duty of payment can arise, and consequently no proceeding to collect the alleged tax is justifiable, until the tax is so adjusted and laid."

But apart from any reasoning as to the general principles governing taxation is not the system of assessment provided by the United States a bar to any such suit for taxes? At that time the assessor, through his assistants, annually made inquiries concerning all persons in his district liable to tax, and the citizen had the privilege of appealing from the assessment and having it corrected. If there was any error in the list of the assessor, or it was imperfect or incomplete in consequence of any omission, understatement or fraud, the assessor had the privilege of entering the tax so omitted on any monthly or special list, and the same powers were given him to ascertain this tax omitted, as he had in making the original assessments. And there was a limitation to the period in which this omitted tax might be assessed; it was to be done in fifteen months after the delivery of the annual list to the collector.3 The same provisions are now in the Revised Statutes, and apply to collectors and the commissioner of the internal revenue.1

Was the tax imposed on the Dollar Savings Bank, a tax that had

1 Texas Banking & Insurance Co. v. State, 42 Texas, 636.

2 Weber v. Reinherd, 73 Penn. St. 370.

3 Acts of 1864, §§ 12, 19 and 20, and of July 13, 1866, § 9.

R. S. U. S. §§ 3172 to 8176, and 3182.

been omitted from the annual list? The tax was one on the undistributed sums added to the surplus or contingent funds of banks. The commissioner for 1870 and 1871 was of opinion that the act did not apply to banks without stockholders or capital stock. The commissioner in 1872, decided that such banks were liable to the tax. Was not this tax, which was not assessed for the years 1870 and 1871, an omitted tax? If the commissioner had been of opinion that it was liable, and had instructed his assessors that this particular bank had not been assessed, would any one have doubted that it would have been properly assessed as omitted on any monthly or special list? Was not the law intended for just such a case? When the omission proceeds from the opinion of the officer making the assessment, instead of the tax-payer, the principle is not altered. Congress has said that all omissions may be corrected, and has pointed out the mode, and limited the period within which it may be done. It might have made it fifteen years instead of fifteen months, but it did not. Omitted State taxes are provided for by statute, generally by requiring the assessor in a subsequent year to place the omitted taxes on the roll, but there is not the slightest hint in any of the cases, that the omitted taxes could be recovered by suit without assessment.1 Upon what principle the assessment is dispensed with we are not informed by the court, except the statement that the assessment may be made by designated officers, or by the law itself. It is possible to conceive of a law imposing a tax in such a way that no assessment is needed, as in the case of a tax to be paid before engaging in an occupation. But the question here is not what the law might do, but what it has done. Congress has in great detail pointed out the mode of assessing this tax on banks, provided a mode of correcting errors, and limited the period in which it may be done. It has pointed out but one mode of assessment, and has adopted two modes of collecting the tax, after it is assessed, one by distraint and the other by suit. As to the collection of the tax either mode may be adopted, but as to the assessment there is but one mode, and unless that mode is adopted there is no tax due.2 Justices Bradley and Field dissented from the opinion of the court in the Dollar Savings Bank v. United States, on the ground that no tax was due until the assessment was made.

§ 167a. Special Taxes-The special tax is similar to the license tax of the States. It is imposed on all persons who pursue the occu

1 Ante, § 93, and cases cited.

2 United States v. Hazzard, 14 Alb. L. Jour. 264; United States v. Halloran, 14 Alb. L. Jour. 279; s. c. 22 Int. Rev. Rec. 309, 321. These cases follow the ruling of Dollar Savings Bank v. United States, 19 Wall. 227.

pations of brewers, manufacturers of stills, rectifiers, wholesale and retail dealers in spirituous and malt liquors, dealers in leaf tobacco, wholesale and retail dealers and manufacturers and peddlers of tobacco and manufacturers of cigars. A person wishing to engage in either of these occupations is required to register with the collector of his district his name, place of residence, trade or business, and the place where the business is to be transacted. If there be a firm, the names of all its members are to be given. If more than one occupation is followed, whether at the same or different places, a tax is to be paid for each occupation or place of business.1 The tax is to be paid on the first day of May each year, or at the time of commencing business, if after that time; it is paid in stamps, not in money. The stamps are procured from the collector. These stamps, denoting the payment of the tax, are required to be posted in some conspicuous place in the establishment or place of business, and the collector is required to keep in his office, in a conspicuous place, for public inspection, an alphabetical list of persons who have paid the special tax.2 The tax is for a year, and in case of the death of the party, his representatives may continue the business without the payment of any additional tax, and so in case of removal of the place of business.

on.

The payment of this tax confers on the person paying it no privilege in conflict with the laws of the State where the business is carried It interferes in no way whatever with the police regulations of the State, as to the manner of conducting the business, or the place in which it is conducted, nor with any tax imposed on the same occupation by the State. It is simply and purely a tax. Where persons were indicted for selling liquor, which was prohibited by the laws of the State, the license tax paid to the United States for the business of a liquor dealer afforded no protection to them. The object of the law is not to regulate occupations in the States, but merely to impose a tax on such occupations when they were authorized by the State.5

A penalty is imposed on persons engaging in these occupations without payment of the tax. It was claimed that the failure of the assessor to register the application for a license, or the refusal to grant the license, where a license was required, was a good defense to a prosecution for the penalty. The courts, however, have held that the

1 R. S. U. S. §§ 3232 to 3237 and 3244.

R. S. U. S. § 3237, 3238, 3239, 3240.

3 R. S. U. S. § 3241.

4 R. S. U. S. § 3243; The License Tax Cases, 5 Wall. 462; McGuire v. Commonwealth, 3 Wall. 387; Pervear v. Commonwealth, 5 Wall, 475.

5 Commonwealth v. Casey, 12 Allen, 214; Commonwealth v. Holbrook, 10 Allen, 200; State v. Delano, 54 Me. 501; 18 U. S. Stat. p. 311, § 18.

neglect of the officers of the internal revenue to perform a duty required by law does not relieve another person who has violated it from the consequences of his act.1 The default, however, is said not to occur until ten days after the roll goes into the hands of the collector. A peddler carried on business for a year, and in April applied to be assessed for another year. Between the first and the seventh of May he sold out. The habit of the collector had been to make out the bills and give the parties until the twentieth of May to pay. The defendant having refused to pay was indicted. It was held that if the defendant intended to pay while engaged in business, then the indulgence given by the officers is not to subject him to the penalty for the mere failure to pay the tax from the first to the seventh of May. Under the present system, when the tax is to be paid, and the evidence of its payment is required to be posted in the place of business, before commencing business, such questions could not arise; if the collector should refuse to sell the stamps required, he could be compelled to make the sale by application to the commissioner or by mandamus.

Exemption.-Persons who sell wines of their own growth at the place where made, or apothecaries as to wines or spirituous liquors which are used exclusively in the preparation of medicines, are not subject to the special tax of liquor dealers.1

Distilled Spirits.-The manufacturer, his materials and all his machinery and apparatus used in the distillation of spirits, is under the complete surveillance of the government. The system is elaboate and complicated, but it is well adapted to the object in view, which is to ascertain the quantity manufactured and to compel the payment of the tax imposed by law on its manufacturers. The tax is not assessed in the usual mode, nor is it collected by placing the list in the hands of a collector after the assessment of the tax. The officers of the revenue determine the quantity produced, and the manufacturer is required to place stamps on the vessels containing the spirits at a fixed rate per gallon. The stamps are purchased of the collector, so that instead of the collector being required to hunt up the tax-payer, he is compelled to seek the officer and pay his tax. The system now in use takes cognizance of the grain or other material when it is first purchased, follows it through the process of manufacture, places indelible marks on the vessels in which it is contained, which marks and

1 United States v. Deviin, 6 Blatch. C. C. 71. United States v. Shea, 5 Blatch. C. C. 546.

3 United States v. Pressy, 1 Lowell, 319.

'R. S. U. S. § 3246.