court, nor does it protect him from the use of the books and papers seized in certain matters, under §§ 3091, 3092, and 3093 of the Revised Statutes.

The act of 1874 cannot be intended to apply to the books required by law to be kept by distillers and others, for these books by express provisions of the law are open at all times to the inspection of the officers of the internal revenue. To what books or papers, then, does it refer? A fair construction would be to refer it to the books and papers of the claimant other than those required by law to be kept. As to these papers the claimant must produce them, or the allegations which it is claimed they will tend to prove must be confessed, unless the non-production is explained to the satisfaction of the court. The conflict between this act and § 860 may be reconciled as to the protection given in a proceeding against the person or property of the party for a penalty or forfeiture, by referring § 860 to all cases other than those in which the evidence is obtained under the act of 1874, or by taking the view heretofore expressed that § 860 only applies to the personal testimony of a person as party or witness, or the pleadings in a suit.

The act of 1874 in terms repeals the act of March 2, 1867. This act is found in the Revised Statutes in §§ 3091, 3092 and 3093; these sections are not repealed. What effect has the repeal of the act of March 2, 1867? In § 5996 of the Revised Statutes, all acts, prior to the first day of December, 1873, any part of which is embraced in the revision, are repealed, so that the act of March 2, 1867, was not in existence when it was repealed by the act of 1874. The Revised Statutes are the law of the land until repealed, and an ineffectual attempt to repeal them by repealing a law upon which a portion of them is founded, cannot have the effect of repealing the Revised Statutes.

Search Warrant.-This may be issued by a judge of the Circuit or District Court of the United States, or a commissioner of the Circuit Court, to any internal revenue officer who makes oath that he has reason to believe that a fraud has been, or is being committed upon or by the use of certain premises. This gives authority to search the premises. It does not, like the similar statute as to the customs,1 point out what may be taken under such a warrant, but the authority to examine and to ascertain whether a fraud has been committed, would necessarily carry with it the power to seize the evidences of the fraud. Whether the power under the search warrant is not subject to the same limitations as that of the supervisor in his examination, is

1 R. S. U. S. §§ 3090, 3091, 3092.

matter for consideration. It is not given in such broad terms, and the fair inference is that it gives no larger powers.

§ 166. The Assessment and Collection of the Tax.—The system of assessment now is very different from that in use prior to the abolition of the office of assessor, and the reduction of the number of subjects of taxation. The commissioner now makes the assessment, when it is not made by the party himself; for, under the present system, where nearly all the taxes are paid by stamps, the party using them in reality makes the assessment and collects the tax. By the purchase and use of the stamp he admits his liability to the tax and discharges it by paying the value of the stamp to the officer of the revenue; and as to all taxes paid by stamps the attention of the government is directed, not to assessment and collection, but to exercising a rigid oversight over the manufacture and the use of articles subject to stamp duty, to prevent their use without the proper stamp. Yet the main features of the old system are retained in the Revised Statutes, the powers heretofore exercised by assessors being vested in the collector and his deputies; and these officers gather the information which, being transmitted to the commissioner, gives him the data from which to make an assessment.

Annual returns were formerly required to be made by all persons liable to tax on the first Monday in March. If a false or fraudulent return was made, or there was a failure to make a return to the deputy collector of the district, the collector might issue his summons to the party, and require him to produce his books and papers, and answer interrogatories, for the purpose of obtaining evidence as to the property subject to tax; or the collector, or his deputy, might enter upon the premises of a person liable to tax, who made a false or fraudulent return, or failed to make a return, and from the best information he could obtain, including that elicited by the collector on his examination, make a return or list.1 Monthly returns are required to be made before the tenth of the month." There are now no subjects of taxation as to which annual returns are to be made, upon which taxes are assessed. Reference is not made here to those annual inventories required in certain occupations. The only monthly returns are those of banks and bankers. The tax on legacies and successions accruing prior to October 1, 1870, and becoming payable since, are returned on special lists.

The collector causes his deputy to canvass his district from time to

1 R. S. U. S. §§ 3173, 3174, 3175, 3176.

2 R. S. U. S. § 3185.

R. S. U. S. § 3414.

time to ascertain what persons are subject to a special tax, and what persons have the care and management of any objects liable to tax. He is to make a list of such persons and to enumerate such objects.1 There are thirteen occupations subject to this special tax, which is paid in stamps, and a list of the persons who have paid the special tax is required to be posted in the collector's office, in a conspicuous place. The commissioner is to make the assessment of the tax from the information given him by the collector in the returns or lists transmitted, upon all person and subjects liable to tax, when the tax has not been paid by stamp in the manner and at the time provided by law. As the tax law stands at present, the only subjects on which the tax is not paid by stamps, are the legacy and succession tax, and the tax on banks and bankers. If there be any omission, understatement or false or fraudulent statement in the returns, the commissioner may at any time within fifteen months, correct the list and make an assessment against the person or property omitted, and assess any additional tax which should have been included in the former list. After the assessment is made by the collector, or any reassessment is made, the list is transmitted to the collector for collection.1

The most important taxes now assessed by the commissioner, are the tax on distilled spirits, tobacco, snuff and cigars, which are ordinarily paid by stamps. But should any of the subjects be removed from the place of manufacture without the payment of tax by means of the stamp, it is the duty of the commissioner to assess such tax.5 The books which are required to be kept by the persons engaged in these occupations, from which monthly abstracts are taken and transmitted to the commissioner, show him the amount of material used by them. From investigations on the subject, it is ascertained that a given amount of raw material ought to produce a fixed ratio of the manufactured article. If the amount returned as manufactured does not correspond with the amount of raw material used, the commissioner makes an assessment for the deficiency. The manufacturers of fermented liquors were formerly included in this deficiency tax, but by a recent act of Congress, they are not now included. These assessments, like others made by the commissioner, are put on what is called the list, and sent to the collector for collection as other taxes. Collection of the Tax.-The remarks on this subject refer to the ordinary mode of collecting the tax. There are special provisions

'R. S. U. S. ch. 2, title 35, p. 624.

3 R. S. U. S. § 3182.

5 R. S. U. S. §§ 3176, 3253, 3309, 3371.

R. S. U. S. § 3240. 'R. S. U. S. § 3183.

R. S. U. S. § 3337; 22 Int. Rev. Rec. 165; Act of May 13, 1876.

applicable to certain manufacturers which will be noticed under the appropriate heads. The collector, in ten days after demand of the tax, may levy on the goods and chattels of the person liable for the tax, including in the term is all stocks, securities and evidences of debt. The levy is for the tax, five per cent. penalty, and such sum as shall be sufficient for fees, costs and expenses of levy. All persons and all officers of corporations indebted to the delinquent tax-payer, or corporations in which he may own stock, are required, on demand of the collector when about to distrain or after he distrains, to exhibit all books containing statements or evidence relating to the subject of distraint."

The officer making the distraint is required to make an account or list of the articles distrained, and of the amount demanded of the tax-payer. This list is to be left with the owner of the goods, or at his dwelling or usual place of abode, with some person of suitable age and discretion, if such can be found. The notice of sale is to be published in a newspaper in the county if there be one, not less than ten, nor more than twenty days. If no newspaper is published in the county, it is to be posted at the nearest post-office within five miles, and at two other public places. The notice is to specify what articles are distrained, and the time and place of sale. The sale may be adjourned from time to time, but not in all to exceed thirty days. If the property distrained and sold is liable to a tax which has not been paid, that tax is to be first paid out of the proceeds of sale. If it is liable to tax but has not been assessed, the collector is to report the fact to the commissioners, that it may be assessed. The collector is authorized to purchase for the United States, property subject to a tax, when it does not bring the amount of the tax on that property.5

All property distrained for taxes may be redeemed at any time before sale by payment of the taxes, fees and charges, at any time before the hammer falls. If not redeemed, the sale is made at the time and place fixed in the notice, at public auction. If the property is divisible, so that the amount may be raised by a sale of a portion of the property, it should be sold in parcels; but if not, the whole may be sold, and the surplus, after paying taxes and charges, paid to the owner of the property, or if he refuse to receive it, it shall be paid into the treasury.

What title does a purchaser take at such a sale? The power to

sell is derived from the statute; it is purely ministerial and must be strictly followed. The purchaser is entitled to a certificate of sale, which is made prima facie evidence of the right of the officer to sell, and conclusive evidence of the regularity of his proceedings. It is conclusive as to all acts done by the officer after the list was placed in his hands for collection, and all questions as to the demand, the levy, the notice of sale, and the mode of sale are finally settled by the certificate of sale. But as to the questions, whether a tax was due, whether it was assessed by proper authority, whether the person making the sale was an officer authorized to make distraint and sale-as to these matters the certificate is only prima facie evidence, and may be rebutted. If the property sold be stocks, the certificate of sale gives authority to the corporation to transfer the stock to the holder of the certificate, just as if the stock had been transferred or assigned by the owner, and the holder of the certificate of sale has a good title against all persons holding, or claiming to hold, possession of securities or evidences of debt when they are sold.

Lien.-From the time that demand of the tax is made there is a lien upon all the property, and rights to property, belonging to the delinquent tax-payer, for the tax with interest and penalties, and all costs that may accrue. In the case of State taxes the lien is generally given by statute from the time the assessment is made, and when no lien is fixed by statute, the delivery of the tax roll to the collector, which authorizes him to levy, as under an execution, creates a lien on all the personal property of the tax-payer. Under such a lien the right of a bona fide purchaser of the property, before actual levy or distraint, were protected against the lien of the State. It is fair to suppose that a purchaser in good faith, from one indebted to the United States for taxes, between demand and actual distraint, would be protected on the same principle."

§ 167. Sale of Real Estate for Taxes-Title of Purchaser— When Suit for Taxes Brought-Collector's Liabilities.-The foundation of the right to sell the real estate for taxes due the United States under the internal revenue system, is precisely the same which has been noticed in State taxation-that the tax-payer has not goods, chattels, or effects sufficient to satisfy the amount of taxes due. When the collector cannot find sufficient personal estate, then he is authorized to seize and sell the real estate of the tax payer. In the case of State taxation it was the failure to find personalty in the jurisdiction of the

1 R. S. U. S. § 3194; Tracy v. Corse, 58 N. Y. 149.

2 Ante, § 109, and cases cited.