..

,H

;;IN REDAYlilliPOlt'l'·

..'",; ·· '. '. ;

527

in tbe co-Untt1Jl, without special derivedfroIh namedthe citizens of Kansas 'City ,untittB-day 'they school buildings andsch:ools., To.the suggestion tbat;> the: property belongs to School-District No.7, or the board of,schobl directors, the citizens of Kansas CitY'i\fOu1d readily, ,'truthf\llly reply, "We are Sc9pol-DistrictNo. 'is;ou.. depTlveus ofour"propertyi, Ror,affeet, l.i:$ argument of there is no, answer; norisjt invalidated by the JacHha.t a bma,qjoining, for its own; connected itselL,with,thesehoolpiganization of the city, uBcteHhelaw ',"',,; . The conclusions rel!-ched are that the verbal agreements made by the directors'hl'behalf of S'Clftool-DistnctNo. 7 with. the (!6tnpany, to pay fOf' public',schools,w8:s without conaiderati?n, and v?idj that the school">public school-houses of Kafibuildings bf:the citY! JWithin tbe l meaning ofthe ;waterJwotKs orditulnce; and 'thall 'the is bound ito 'fijrn'iah Watet}fm their Use, free :plOVided in1be 'ordinanoo/'r!Mofion t08ehside iibnsui:t':denied.' !j 21;'

,be they in a city,

and

'f

,

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! ' '

'T:::

In",.."

,

,

1

,',

'

'Supervisor of, Elections.

D.

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,

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..

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York. .October 11, 1880.)

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'

whielt that of the dlitiai, iIilp&eed: upon 1;hem long · an<,l,capable ,n ',t,lle,' ',ill,',l1in,gby a, c,il4}f llUP"a,rvis,o,I,' ' ipnstJ1 at, , atantially and Ipaterially the, 1108 is, SU,'bor",din,,aoos . othel,"8 'previousl and' approve4 ,'ex )'i);rle by the d18trlct attlll;PllY tor the United S'tl&tes 'an 'tll.e 'judge of ,the'Uii'ited '4!ittMe8'distrlct;court. istte41li gToundfl!l\'l hil removat from oftiOO·. :i!uch approval.1a '8111lJlD1ent Ilo repel any; imPUtation of ,' ,;, . ,
Q, ··

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",ll:J,f,

-, M,1800, N:OUOTO,

'it

:a.'SAMB.

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'.

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Elta:tell:, CII,"CUmstanoos, 'put'to 'lin' applicant for ,Hl'Ild,tbat this should the ol/otb and

or e1e.9,t!on,i In,stru"P,ted.his subordinates tfult,' "you wU1 , j. · · require"'tnestatutoryoathtobe
'litld

""i"

'ii..

':

will make ofbtm "certain inqqirie·· to,l'II4au,est the state the New York ":l;'8\l),Yl"Oper o n e . . ' :" "
," "

. ' 'I'htf'tollbwtng questionlfmay bellropOsed 'b1'a fedel'81supel'visor ofeleOtionto stlftie lIi'llpeetors,of' eleotion: ll$i propei' tQI bel put to .applicailts for regiskaljon,'sinoe tbe,Y,'OOlld, to, eEci,t, proo, the, aWUo!"n,t'l! tpr,a1izatl,'on,"aI!, rA<,p,ntemplat.edr,' bY,; ,Q. , (1) BIB (2) he nail served in the Ql,"mY'"and been. honiira'blydlscharged'; . (3) whetber Ms' parents, 'of them. In'l1)hiINotintry\' and"if '80,whether they natumlized; and· e., ,whet,heJ: ',they, 01," eitber'of ,them, were lJayu11llfzed, qpplicaD;t Qf,age..; be v,r,oop./:"Bfi J;li/lfirst papers before recelY)pg J;!18certl.ll..cate"alll1t if Jt Was two \Jeforej (5) hllltppi3lfrea in court, or wbetl;lar hIS oel'tjliiliite was senti to 1iim, or 'else· .. be tOOk 1hvitne811' Wltb :Mill' iW ben he 'r'cui¥ed Jii8 dertiflmte, , ;".';, J'r,

011' :N"ATURALIZAIrION'"

are

628
.. SA1.tE-'-CB:..r.tBNClIwG

I'ED£RAL 1Ul:PORTER,

voL 48.

'

," ',AllinstrUCltion from the chiefolupdrv!sor of electioIl,ll the district of to the election challeuKe an appitcant'srigllt to register . i.'uG't improper. since'Rev. St. S. ','2()12. authorize's the supervisOrs 'to do so, and , aectkin 2028 requires them to be voters, and voters are given sail! authority by , , r.iIIwsN.,Y·. 1872, Co 675. .. . , I. ' , An instruction that.it'lt shall appear that anapplioant has ill.bis possession. oeJ:tifi!l!'te ofnaturaU""ti,Qp. improperly.issued Qr granted Qr imprpperly "yQIJ, w111 see that such isnotallQwed tQ register," is not improper. sInce it merelY advises the use afproper means to prevent his unlaWful,registration. .. S.un:-:INnifi,l CBRTIJ'IOATB OJ' .NAT1JJU.LIZATION. ,4n .in.s.truction that in sl1cb, c.as8:19u "will taoke from him" his certl1lcate, and attach a statemen\ of the'flJ,Clta as given !JY the applicant, etc. 1. is imp!oper, " linee it tnay oonstrulidto'requite ·the lupervlsor to take the' oertincate WIthout the applicant's consent, Qreven by force. wl1ioh he has no authority to do.

RBGIST1U.TION.

At :'IiAlt. "Application removal of John 1. :Dllvenport from the office of chief supervisor of elections for thesolltherndistrict ()f Hie'remo.val was asked uJl.der Rev. St. U.S. § which provides , thatchiei supervisorsofelectiQl,l$ "shall,IiIO long as capable, ;upon them; and a. and capacity such 'as is co»tlmlplatOO by tl1El statntE! e.1,le/!;ed to exist because, as chief supervisor of elections, he had issued instructions to the supervisors of election as follows:
"INSTRUCTIONS TO SUPERVISORS OF ELECTION.

New York.:

IIOFFICE OF CHIEF SUPERVISOR OF ELECTIONS, SOUTHERN DISTRICT OJ' NEW 't';(Hut, Roo!llS STATES
CoURT-HOUSE.

.

' .'

., .

.' '"

..' . .

.r

"NEW YORK, October 4th, 1880.

liTo EaohSuper"iaor' of ElectiOn ln'the City of Net/) 'York: You will .ee appll,cant who of a so-called certIflbatEl of naturahzatlon purporting to have been lssueqfrom the suprem'e . and superior courts in·this city in year unless tbe same waS issued by the snpreme court under date 'of October sixth, 1868. and that day only, ,is certificate Is l>elieved to be false andftaudulent; and, if yOI1. will challedg'e 'his right to register, and require the statutory oaths, to be put to him. Upon such cballenge, after the party is sworn, you wllPmake of bimthefollowing inquiries: pir8t. when he came to this country. Second. Whether 'hE! army,andbeenhonorablydischarged. Third. Whether bis parents, oreitll'er oftbem, bave.resided in this country, and. if so. wbetber the time of such naturalization, i. e., whetber they, or either of them, Were n,aturalized. before the applicant for registration arrived at the age of twenty-one, Fourth. U the ansWer to question one shows. ,tlJat ,tbeapp\ijmnHor registration was over the age of eighteen when be came to thIs OOlltrtry; andthe&llJwers to questions two andtbree be in thenegathen be inql!ired of as to wbether be procured hislirstpapers before cert!ficate;and; !f SO. "hether itW88, two years before. ,Fifth.Whethej:hepersopally appeared in court when he obtained his certificate; aM' WitS sworn, or whether it was sent to him, or given him elsewh"re. '1!JirJ{th. witness to court witb hi1D, wben be received certificate, if;.80. how long heha,d, known the was his witness. If, the: board of .inspectors decide thereafter to register any sucll: person. you will note your compliance with these inatructionslD your luperv1sors·

IN RE DAVENPORT.

529

book, against th'e name of the applicant, under the column headed 'Remarks.' Sochentries will be made In the following manner: 'Challenged and examined, and oath taken.' Yon will also note ill the back leaves of your book a memorandum of the several persons so notified and challenged, and of their answers to above Your rigid compliance with these instructions will be required. You are further directed: (1) That whenever, upon your examination of any person applying for registration, it shall appear that such person has in his possession a certificate ot naturalization improperly issued or granted, ,or improperly obtl}ined, you will see that such person is not al· lowed to register. and will take from him his cE'rtificate. and attach thereto a statement of as given by the applicant. together with his name and 'return the same with your book to the assembly district aid, t,o be forl'varped to the chief supervisor. (2) It has come to the knowledge of the chieNsupervisor of elections that many persons posSessed of fraudulent and 'void certificates of naturalization issued by the superior and supreme courtsinthecity of New York in the year 1868 have torn up or dest-royed their certifl,pates. ,8Qme of these persons have heretofore been allowed to reg· iste,r their tQbave been naturalized, but to have 'lost their it pers()n sew ,to be registered by reason of his, having' been naturala duplicate ized. hamust' produce his certificate, or be l'equlred to 'thereof;'! If; for any substantial reason, such as that the records of the court , the applicant was naturalized have been burned or otherwise destroyed. sothat'hllcannot obtain a duplicatl;',' then the evidence of anyone whokno}Vs thefa,ct q( tbe.naturalization of the or who 1)8S seen his certificate, but the court. and the date of the as nearly may be as possible, and the time and circul1lst'ances under which the certificate was lost, 'inliBt be stated. (3) Each superVisor will be carilfoI' to inspect each naturalb:ation certificate presented, and observe its date, as set forth in the part Of the' certificate. ;Thedll.te at the close is freq uently the date of ·the Q11 afilupHcatl'. and you must .be careful. ,and DQ\, be misled by it. (4) The compliance with the,se instructions,. and tl,oi;le contained upon tbe last. page of the supervisors' book, is urged. The chief superviRor ex· pects each otficel' to fully dischal'ge his duties. 'fhe office of superVisor of isbO sinecure, and any appointee who feels himself unable to properly perform its dutitls had betterresign. (5) The yellow-covered book sent youis:the dIlief supervisor's copy. and must be written up upon each of the slainell.Jinee. begimljin.g'.M'ith the first, and must be II copy of the other book kept by you, save that it must not be spaced, and no regard must be paid to any of al'l'angement by streets or house numbers, as in your book. In other words. it must be written up as the parties appear for registration, line by line. "Respectfully. JOHN I. DAVENPORT, "Chief /Supervisor of Electiona. It

E. E. Anderson and G. W. Wingate, for the application. E. W.StiYughton and E. Root, opposed.
Before BLATCHFORD and CHOATE, JJ. BLA±CHF()lm, J. We are prepared to dispose of this matter now. The two jUdges concur 'entirely in: their views upon the subject, although the decision must be considered as being made by the circuit judge sitting alone, with the!ldvice and concurrence of Judge CHOATE. We do not Uiinka case is out for removing Mr. Davenport, under this petitioIl.. 'The so far as the substance and materiality of them are concerned,-everything that precedes the second further direc. v,48F.no.7-34

.5..30

I

vol. 48.

'tion,-:-a.ppear. to be ·the .same nWhich were iSBuedprevioJl&Y',tlul1,.apfar a8 ertparte; hythe district 'att,6rP,i!yo aud' by JU,Clge W06bft'UFF:' > Under such"circumetanbes,' this not be the of these instruc·. .of wantaf; or lV.ant, I?lipacityon th? part ,of the repelallimputationli! 'Illf :any bad faith on his ,part,. while at the·sRme time they may upon this court, Isitting judicially, as to thepl'opriety iof thei'nstructions. : : !, r as·to'the Vropnety.l;i,ae argueq tQ us, a-nd webave oeel) asked to. express an oOpiJliQu:inlegardto thltm.Th,tial'lcision noitp,reUlove Mr. Davenport disposestpernaps, of,thepraym,iOf:the petition; hut we deem it proper, question's illvol"e:dJ arid of the arguments of the counsel on'liotJn'sides, 'to give:"oqr vie'Ws' Qpon'the instrUbtions,·as the views of the.' it., h.:.OU. ,ot. .. whlJ,tever. '.1*.. the. p.remiSeB,. e.xc.ept tQ the removal,9(,Mr. Davenpprt. '.' We:illCge.rd ,the inqQirieswhioh the instructiolls(lire9t shall b.e made of theI!lerson, pTesentingJan as proper dnes'WbelfililW. We: 'not that there is anything in these instru!jtiotlS\Vhichi$'iritelldedto ittterfere in any 'manner with the proper ,The are to decide whether to pot·. ,If they r.efuse to register him, the.reJlledyia',by man4a,tnJ.t8 from th.e::sQpremELQourt ofilie stiltej'fln'd,i£ they improperly,:puthis name upon the, registry undoubtedlylheilelisatemedy.if'We do: Dot see anything in fheSEdnstructions 'any.; ... If these':i'n()l,' ij.ny, Qther lDllulhes, ,asked()f apphqi1I1t, and he rethe 6ther"th'e conseq4ence tpat his fusa8,to !namewill not beregistel'ed.. If he,says that h.ewiU not ,answer the .in'qairies' becaus.e the'ans'wers may tend to criminate him, that will'make difThi'ence.' 'He doe$\' hot answer, no matter· what the i and, :if he .8.$suines· the cqrtsequellce·....·1 , .. ." made with reference to registtl1tion and electIon laws 01' the 'state of New York, (Laws N. Y. 1872.,.0./675;) and we consider. the, inq'l!liri sorquestions to be inquiries runlling pari pti's8u;'With the questions which are authorized and required by those laws to be offering: ito, vote aEl.a person.. The inspectors are not only required . 'tq ,put certain questiqns, but they are authorized to put such other .affect the o.f ,the' person to vote. Such is also the purport of the oath. . . to challengethe:pght to regiswho in on an; We iE! shq,\\,u to inquiry into l.S()8. papers. WeoonUQt !?avenport.:. Wei,havenotthe faQtsj' before: 11S uppn iW hqacted, 1l-11dJ III take.; his vit upon that .s\,lbject asspowingsufficiept ,gr-Q;\lodsfor,l,tl1 inquiry in regar(lto T1,l.e right of tl:\e

.N*1f;'

Ot.

.

"',

"

.

C

\

IN.

531

tochaUengeany person offering to register is expressly given by the stat\!lte of the; United StateS, (Rev.: St. § 2017:;) and that statute (section 2028)reqniresthat the supervisor shall be a voter. The statute (if the state giveS thenght of challenge to any voter. The instructions then direct: the supervisor to require the statutory oaths to be put to the applicant. That is,:no more than asking the inspector, to put the statutory oath; The inspectoris the proper person to put thEPstatutory oatn, and he is, under the state law, required to do so. When the oath is put, the applicant is to be How is he to be examined? The state law provides that the inspector shall put tliequestions. Theseinstructiohssay: "Upon suoh ohallenge, after the party is sworn, you will make 'of him the following inquiries." Further OD, they 'say: "Whenever, upon your examination of any person applying forregistration r it shall appear that'spch person," etc. It does not follow at.all,from th is language, that the questions are to be put directly by: the supervisor to the applicant. They are to be put in the uBuallaw. fulway,-through theinspecto1". That is the meaning, although the language might be made more accurate. The inspector, being by law the personw:ho is to administer the oath and put the questions, may not put the questions proposed by these He may have his attention called by the supervisor to the advisability of putting these queemay refuse to put them; but nevertheless they are prbper questions for the Bupervi80r to ask to ha",e put. The theory of the,stl;l.tllltes of the state of New York in regard to registration is that the right ofa naturalized person to yote, even though he presents a certificate of naturalization, is to be .inquired into by the inspectors; and thereisnothingrin the decision of this court in In re 'Ilwn, 16·BJatchf. whiohconflicts orinterfereswiththis view. : The insbrnctions. then proceed: "That whenever, upon jour examination orany person for regis. tl'ation;'1t'llbkllappear tll'at such'person In his possession a of natlnalizat.lon improperly issued or granted; or ilnpl'()perly obtained. you will see tbat sucb person iS,not allowed to register," etc·. " ..
;.. , " -'; . , ' , . '

That is not an instruction of prohibition. If the inspector is about to p;ut eJowll,tbe as a registered voter;, this instruction does not IPep,nthat th.e superv,sor:is to seize the pen,and take it from thus. prevent registering. It merely means that t\1e supervisor iS,to ,use proper means to see that the inspel'tor dpes not register the applicant. ;But, of couqe, the in!1pector may still r.li'gieter him.J'he form offlxpression: is, perhap£l, not as accurate as it might he, but aUq,e same is.,& ,form not improPElr have been used; and understlmdthatit conflicts. in allY maqner with tbeJrlledomqf . ,
the facts as givell by togetbel' witti his' name and address, and return tW'8afne; w\th)'C)ul' book, to the asstlwbly districtiaid, to be fOrwtrided

'''Andwilh'ake frorr!

him;

arid attach thereto a stat4"trlllnt of

to the chief supervisor."

532·

FEDERALREI'ORTER,

vol. 48.

: That portion of this instruction we regard as unwarranted, and not to be supported. We regard it as tending to a brea<lh of the peace, and as-totally unauthorized under the circumstances in respect to which it is given. If a person is arrested, under section 2022 of the Revised Statutes of the United States, by a deputy-marshal or a supervisor, for illegally attempting to register, and, in. connection with that arrest, the incriminating and inculpating certificate is taken, together with the person, before a magistrate, that muy be a proper, proceeding j but it will be a very different proceeding. We do not think that the words, "will take from him his certificate," are capable of the modified construction sought to be given to them by one of the counsel,-that the supervisor is merely to receive the certificate if the person gives it up. It is, capable of a different construction. Moreover, in the petition in this ease, it is stated that in several cases the. certificate has been takenfr.om the applicant, and on bis demanding it backtbe supervisor has .refused to return it. If it is 8Ubli1ittedto. the inspeator,'and the inspector passes it to the supervisor, ,and the applicant then asks to have,.it returned, to him, the withholdingit then by tbe,snpetvisoNl.lDounts to,the same thing as ifhe had taketi::.it forcibly [wm the applicant. We do not, think that that portion:of the instruction can be upheld. ' ',' ., III- regart:Uo the point raised ,by LVIr. Wingate, in his last observations to the, court,. about the .evidence tOibesubmitted· as tonaturalizatioI:li"";" either the original certifieate or -some substituted evideilce,--:"it would seem that perhaps theinstruction .goes a little heyond the Jntent of the state statuti. The state statute seems to be thattheapplicant is to produce 'theorigioal certificate of naturalization, ifhecan, bUt that,. if it is lost, he may show the factoLhis naturalization by other evidellce thap the production, of a duplicate of such certificate. This instruction, seems to proceed upon the principle that the best attainable evidence must be the original certificate ora dU);llicate.· It says: "If. that t'he ,records oftbe,lJol:lrt w1:lera the applicailt Vl;all natural,ized ve belln, burned .or d.estroyed. sQ that he cannot obtain Ii duplicate. then the evidtmce of any, one who "nows the fact of the naturalization of the applicant. or who has seen his certificate, may be recei ved. " , 'fhis is stated as the opinion of the chief supervisor of elections. It mayor may riot be acted upon by the inspectors; Ihvoilld seem, so far as the court now perceives, to be a departl:h'e somewhat froniwbat is requited by tb'e state statute. We have not had an opportunity to examine it with care, and it ha.s not been by the counselfot' the chief supervisor. But the departure is not avery grave or serious onej' and ,the matter is, unquestiohably, to beregillatedby the inspectors. If the supervisor sees fit tOBay tothe uIider these instructions, that the state Iaw is so and so, and' it 'il:i "libt; the inspectors know better, for they have the guidance of the state1'dw,and of the inl"trpctj,opl3tqthem thereunder jand ,they tbey seetU. 'The instruction in quesWm, though it may is not!lufticieut ground for removal, and not require lUoreserious comment. :; ;"','

OOMMISSIONERS OF THE SINKING FUND OF LOUISVILLE V. BUCKNER.

533

These Ilre oUf, villws on the subjeQt, in which both judges concur. They cover the whole, gronnd i and my associate, Judge CHOATE, says that he has nothing to add.

CoMMISSIONERS OF THE SINKING

Fmm

et

aZ.

OF LoUISVILLE et

al.

tJ. BUCKNER

(Oftrcuit Court, D. Kentuc1ulli

1,1891.)

A suit agllinst an internQo1 "revenue collector to recover taxes alleged;to have been Ule/rallycpllected is cognizable in the cil'Cuit court, both under Rev. St.V., s. S 629, giving that court jurisdiction of 'causel> arlsiIig under any law providing internal revenue,and under Aot Congo Maroh 3,,1887, giving it jurisdiotlon of 'Causes arising unller the laws of the United States, t. LIt,IITATlON OF ACTIONS'-D:BMURRER. ' , In.a suit to ,recover internal revenue taxes alleged to ha.ve been Uleg"lly collected,' where,the c(lIllplaint shows that more than two Years have, tl;lel'll-' fore barred, by Rev. St. U. S.S 8227, the bar may be raised 'l/y deml:/.rrer, SlDce that section oontains no exceptions. ' .'., ", ',

:L

CIROl1ITCOURTS-JURISDIOTION-SUIT TO RECOVER INTBBIUL TAXES.

a.

'As the rIght to sue the United States through its colleotors, toreoorer taxes Qo1: leged to have been illegally collected, is only a remedy given by stat'lte, nb' such' . right exists, uuless the conditions prescrU>ed by ;Jiev. St. U. S. are strictlyellmpllild with uamely, that an appeal must llrst 'be taken to the commissioner of internal revehue, and the suit must'be broughtwtthin two'yearl> from the date :' ," , The rule statl;ltes of run against app1y in , favor of a CIty, in Vlrtull of'the governmental pOwers exerCIsed by it, in respeot to ,a claim of the city against the United States for taxes alleged to have been illegally colleoted. '
SAME-RJ;lMOVAL OF LIl\IiITATIONSP.F ACTIONS..--lJLA,IM BY CITT.:" .' : . ' " ,

;Et1!lPQVER.

,.,,'

,·

'

", '

,

4.

.5.

a

Congo o!une 16, miSSIOner of lDternal revenue ttl audIt and adJust the claim of the CItyo! LOUIsville "for internal revenue taxes on dividends on shares of stock" owned by tbe city in the Louisville & Nashville Railroad Company, "to the exteut that suoh t'!oxes :were deduoted from any dividends due'and ,payable.," and to pass upon :the olaim "in t1).esame mauner as if saillclaim bad been p!"6sented and proseoutell the time limited and fixed by Held, that tbIS removed the bar of the '!ltat1ite of limitationsagaiust the ,claims speci1led, in ,respect both to taking an appeal trom the colleotor to the commiSSioner of internal revenue, as providEY.1 in Rev. St. U. S. S 8226; and to the time of bringing'suit, as provided in section 8227.' ,', But tl:Ie words of tbe act, "taxes on dividends on shares of stock" ownlld by the oity, do not iuclude taxes paid by the railroad on its gross receipts and on undivided profits, aud tbebar is not removed as to a claiIIi tberefor.
' , ,

8,b,B.

.',

, , '

.

SAME.'

"

,

'7. SAME-INTEREST ON ILLEGAL TAXES.

As thE! taxes were originally paid without Ilrotest, and no appeal was taken to the commissioner of internal revenue, and no demand made for repayment; no in. terest would have been allowed on the claim, under the general policy of 'the governmell-t, if it bad been proseouted before the statllte had run, to completion; and therefore, as the act of 1f:lQOautborized judgment to be rendered on the claim "in the same manner and with the same effect 8S if said claim bad been presented aud ' proseouted within the by law," no right to interest was givellthereby.

At Law. Action by the commissioners of the sinkIng fund ,of Ky., against Lewis ,F.13uckner, as executor of James F. Buckner, .and others; to' recover' taxes to have been 'illegally .collected by'
. ,'. i . ., . , .. , ,': "., ,