list, for the month of March 1870, on which was charged to the plaintiff the sum of $965.68, being the additional amount of his income tax for the year 1868, so reassessed, and the penalty aforesaid; that the said collector duly notified the plaintiff of the said charge, and demanded payment thereof on or before the last day of April 1870; that the plaintiff did not pay the same, and that the defendant afterwards, on the 9th day of May 1870, proceeded to collect the same by distraint of the goods and chattels mentioned in the declaration.

The demurrer admits the truth of these facts, and the sufficiency of the plea, therefore, depends upon the legal authority of the assessor to reassess the plaintiff's income tax, and to add one hundred per centum thereto. If the law conferred this power upon the assessor, the list made out, certified, and delivered by him to the collector was a sufficient warrant to the latter to demand and collect the tax charged therein, and constituted a complete justification of the seizure of the plaintiff's goods. The collector is responsible only for the possession of authority by the assessor to make the reassessment, not for his conformity to the directory provisions of the law, as to the mode of its exercise.

This question is to be solved by the construction of the Internal Revenue Act of June 30th 1864. The 20th section of that act authorizes an additional or reassessment of income tax, within fifteen months after the delivery of the annual list to the collector, in all cases in which it is incomplete, or imperfect, in consequence of any omission, understatement, undervaluation, or false or fraudulent return made by any person liable to said tax. The terms of this section are certainly broad enough to embrace the case stated in the plea, but it is urged that it was not intended to apply to the case of persons who have paid the amount of the original assessment.

The only limitation of the power of the assessor relates to the period within which it is to be exercised, and the cases to which it is to be applied. Within the prescribed period and in the specified cases, it is coextensive with the power vested in him in reference to the original assessment. The object of the law is to confer upon him ample corrective cognisance of all omissions, understatements, undervaluations, falsehood or fraud in income returns, upon which the tax has been assessed and charged in the collector's list, within fifteen months, to the end that every tax

payer may be subjected to his proper proportion of a public burden. To make the payment of less than this effective as a discharge from liability for a further sum, which ought rightfully to have been paid, and which has been avoided by the fraudulent act of the person subject to taxation, would be to circumscribe the scope of the law, against its obvious intent. An express restriction alone could have this effect, and that is not to be found in the act.

But it is evident from the tenor of the act, that it contemplates the exercise of the power of reassessment after the payment of the tax first assessed. It is made the duty of the assessor to require a return of income on or before a fixed day in each year, and to make out, certify, and deliver to the collector a list of the taxes charged therein. This is called the annual list, and after its delivery to the collector, it is in nowise subject to the control of the assessor. It is then the duty of the collector to proceed at once to the collection of the tax charged on this list, and to enforce prompt payment of it. The whole process of assessment and collection is intended to be completed within the year in which the assessment is made. Now, at any time within fifteen months after the annual list is delivered to the collector a reassessment may be made, and only the additional tax thus ascertained is to be charged and put on another list, called the monthly list. By this extension of the period for reassessment beyond the time when the original tax must be paid, and the provision for the collection of the additional tax only upon the monthly list, it is apparent that the assessor's power of reassessment is to be exercised independently of the fact of the payment or non-payment of the tax charged in the annual list.

It follows, therefore, that the additional tax assessed upon the plaintiff was authorized by the Act of Congress. And the return made by him having been found to be false, it was the imperative duty of the assessor to add one hundred per centum, as directed by the 14th section of the act.

The remaining cause of demurrer is, that the Act of Congress, in so far as it imposes a penalty for a false or fraudulent return, is unconstitutional. The act does not invest the assessor with power to "sentence" anybody; it does not even allow him any discretion as to the penal increase of the tax. It authorizes him to inquire whether the return is false or fraudulent, and if he su

finds, requires him to add one hundred per centum to the tax. This is not conferring judicial power upon him, within the meaning of the Constitution. It is simply empowering him to ascertain a fact, according to which he is to adjust the amount of the tax imposed by law. That this function is judicial in its nature there is no doubt, but so are many like functions committed to public officers, as essential to the performance of their official duties. They are within the competency of Congress to confer, as necessarily incident to the execution of its expressly granted powers.

The Acts of Congress furnish many examples of this. They are to be found especially in the laws relating to the collection of customs; and the validity of such legislation has never been denied. A single illustration will show this. By Act of Congress collectors of customs are authorized to assess an additional duty of twenty per cent. upon goods valued by the appraisers at ten per cent. or more in excess of the value declared by the importer in the invoice and entry. The validity of an appraisement made and an additional duty imposed under this act, was before the Supreme Court in Bartlett v. Kane, 16 How. 269. Judge CAMPBELL delivering the opinion of the court said, "the plaintiff contends that the rule of appraisement by which the dutiable value of the goods was raised and the importer was subjected to the additional duty prescribed by the 8th section of the Act of 1846, was illegal and void, and the duties thus claimed. and paid under said appraisement were illegally exacted. * * * The appraisers are appointed with powers, by all reasonable ways and means, to ascertain, estimate, and appraise the true market value and wholesale price' of the importation. The exercise of these powers involves knowledge, judgment, and discretion." And again, "an examination of the revenue laws upon the subject of levying additional duties, in consequence of the fact of an undervaluation by the importer, shows that they were exacted as discouragements to fraud, and to prevent efforts by importers to escape the legal rates of duty. *** They are the compensation for a violated law, and are designed to operate as checks and restraints upon fraud and injustice." And the legality of the appraisement and of the imposition of the penal duty was sustained. That the powers thus exercised by the appraisers are judicial in their nature is beyond question, for so the court distinctly treats them. They decided the fact, that the importer's

invoice was false, and thereupon the collector imposed upon him a penal duty of twenty per cent. And yet the court upheld the exercise of these powers by the appraisers and collector, without intimating a doubt of the validity of the law conferring them. Their conclusion is a most expressive affirmance of the validity of such legislation. So also, in the present case, the investiture of the assessor with analogous functions must be sustained, as auxiliary to the execution of the same constitutional grant of power to Congress.

Judgment upon the demurrer will, therefore, be entered for the defendants.

United States District Court.

Western District of Missouri.

UNITED STATES v. S. P. DOSS ET AL.

Where a United States officer holding a prisoner by United States authority is served with a writ of habeas corpus issued by state authority, it is his duty to make due return to the writ; and he acts within the true spirit of the law by producing the body of his prisoner before the court or judge issuing the writ.

Where such officer makes return showing that he holds the prisoner by United States authority, the state authority should abstain from longer interfering with the case, and all its proceedings thereafter are illegal.

Where a prisoner is held for an offence over which the United States and the state in which it was committed have concurrent jurisdiction, the government which first assumes jurisdiction will retain it until final judgment.

If a state judge, in combination with others, misuse his position and office by making use of the law and his power for the purpose of accomplishing an improper release, he, and those acting with him, are liable criminally for obstructing process of the United States.

But if the judge acts bonâ fide he is not liable criminally, notwithstanding his acts are illegal for want of jurisdiction.

Where a prisoner is brought before a judge in obedience to a writ of habeas corpus, he is under the control of the judge, the writ of habeas corpus having superseded the original process, and therefore, a person taking charge of the prisoner under the order of the judge issuing the writ, cannot, for that act alone, be held guilty of obstructing United States process.

THE charge of the court to the jury contains a sufficient statement of the case.

James S. Botsford, District Attorney, and H. B. Johnson, for

the United States.

Ewing & Smith and Philips, for the defendants.

KREKEL, J., charged the jury as follows:

The first count of the indictment charges that Doss, McAfee, Snow and Wray, did knowingly and wilfully obstruct, resist, and oppose McConoughey, United States Deputy Marshal, in serving, and while attempting to serve and execute a warrant of commitment on Samuel Snow.

The second count charges the same defendants with rescuing Baid Samuel Snow by force from said marshal, who held him under warrant of commitment.

These charges are based upon an Act of Congress, which provides: "If any person shall knowingly or wilfully obstruct, resist, or oppose any officer of the United States in serving or attempting to serve or execute any measure, process or warrant, or any rule or order of any of the courts of the United States, or any other legal or judicial process whatever. * * * Every person so knowingly or wilfully offending in the premises, shall, on conviction, be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars."

"Or if any person or persons shall by force set at liberty or rescue any person committed for, or convicted of, any offence against the United States, every person so offending shall, on conviction, be fined not exceeding five hundred dollars, and imprisoned not exceeding one year.”

It appears that one Samuel Snow was arrested on a warrant issued by United States Commissioner Birdseye, upon affidavit filed by one Morris, charging said Snow with having in his possession for the purpose of passing as genuine certain counterfeit obligations of the United States.

Snow was brought before the commissioner on the 20th day of September 1871, who continued the hearing of the case to the 30th of the same month. Upon an examination then had, said Snow was bound over for his appearance before the District Court for the Western District of Missouri, to answer an indictment if found. Snow gave bail in the sum of one thousand dollars, with two of the present defendants, Wray and David Snow, the latter the father of Samuel Snow, as sureties. Afterwards, under an Act of Congress, which provides:

"That any party charged with a criminal offence and admitted to bail, may in vacation be arrested by his bail and delivered to the marshal or his deputy before any judge or other officer having

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