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U.S. Supreme Court

Hornthall v. The Collector, 76 U.S. 9 Wall. 560 560 (1869)

Hornthall v. The Collector

76 U.S. (9 Wall.) 560


1. The jurisdiction of suits between citizens of the same state, in internal revenue cases, conferred by the Act of March 2, 1833, "further to provide for the collection of duties on imports," 4 Stat. at Large 632, and the act of June 30, 1864, "to provide internal revenue," &c., 13 id. 241, was taken away by the Act of July 13, 1866, "to reduce internal taxation, and to amend an act to provide internal revenue," &c., 14 id. 172. Insurance Company v. Ritchie, 5 Wall. 541, affirmed.

2. Where such citizenship as is necessary to give jurisdiction to the federal courts is not averred, the suit cannot be maintained.

3. Where the circuit court dismisses a bill for want of jurisdiction apparent on its face, the general rule is not to allow costs.

The Judiciary Act of 1789 limits the jurisdiction of the federal courts, so far as determined by citizenship, to "suits between a citizen of the state in which the suit is brought and a citizen of another state."

An act of 1833, [Footnote 1] "to provide further for the collection of

Page 76 U. S. 561

duties on imports," extended the jurisdiction to cases arising under "the revenue laws of the United States" where other provision had not been made. And it authorized any person injured in person or property on account of any act done "under any law of the United States for the protection of the revenue or the collection of duties on imports" to maintain suit in the circuit court. It also allowed any person sued in a state court on account of any act done "under the revenue laws of the United States" to remove the cause by a mode which the act itself set forth into the circuit court of the United States.

With the passage of the internal revenue laws made necessary by the late rebellion, it was doubted by some persons whether this act of 1833 extended to cases under the new enactments. And the internal revenue act of 1864, [Footnote 2] by its fiftieth section, extended in general words "the provisions" of the act of 1833 to cases arising under the internal revenue acts.

By an Internal Revenue Act of the 13th July, 1866, [Footnote 3] however (§ 67), Congress made provision for removing cases from state courts to the circuit court, authorizing such removal in a way which it particularized

"in any case, civil or criminal, where suit or prosecution shall be commenced in any court of any state against any officer of the United States . . . or against any person acting under or by authority of any such officer, on account of any act done under color of his office,"


And by the sixty-eighth section, immediately following, it "repealed" the fiftieth section of the act of 1864, with, however, this proviso:

"Provided that any case which may have been removed from the courts of any state under said fiftieth section to the courts of the United States shall be remanded to the state court from which it was so removed, with all the records relating to such cases, unless the justice of the circuit court of the United States in which such suit or prosecution is pending shall be of opinion that said case would be removable from the court of the state

Page 76 U. S. 562

to the circuit court under and by virtue of the provisions of this act."

In this state of the statutes, Hornthall & Kuhn, describing themselves in the same as "partners in trade in the City of Vicksburg, State of Mississippi," filed a bill against one Keary, described in it as "Collector of Internal Revenue of the United States for the Second Collection District of the State of Mississippi," praying for an injunction to restrain Keary from collecting an internal revenue tax assessed on certain cotton of theirs, which tax they alleged was not due, but which the respondent nevertheless threatened, as they alleged, to collect by distraint of their goods. In the subpoena, both parties were described as citizens of the State of Mississippi. On demurrer, the court below, sustaining the demurrer, dismissed the bill for want of jurisdiction apparent on its face and awarding costs to the respondent. The other side took this appeal.

Page 76 U. S. 563

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