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(273 F.) sheriff or constable to

search the premises and seize and hold all intoxicating liquors.

(Italics mine.) The Legislature, pursuant to section 12, art. 4, supra, created municipal courts in cities of the first class, granting jurisdiction :

“(1) Of any and all criminal offenses under any ordinances of their respective cities.

“(2) Of all criminal offenses under the laws of the state of Washington, charged to have been committed within their respective cities, less than a felony.

“(3) The judges of said courts shall have all the powers of a committing magistrate as to all offenses committed within their respective cities. Wherever the jurisdiction hereby conferred may be exercised by other courts, under the Constitution and laws of this state, the jurisdiction hereby conferred shall be deemed to be concurrent with such otber courts." (Italics mine.)

A magistrate is defined by Bouvier as:
"A public civil officer, invested with some part of the

judicial power given by the Constitution. In a narrow sense this term includes only inferior judicial officers, as justices of the peace."

Section 7520, Rem. Code, supra: "The mayor

shall appoint one of the justices of the peace police judge of such city." Section 7521, R. & B.:

"The police judge so appointed, in addition to his powers as justice of the peace, shall have exclusive jurisdiction over all offenses defined by any ordinance.

*

[2] A sheriff or his deputy, a constable, marshal, or policeman of a city are peace officers. 30 Cyc. 1327; Messer v. State, 37 Tex. Cr. R. 635, 40 S. W. 488; Hopewell v. State, 22 Ind. App. 489, 54 N. E. 127. A conservator of the peace is a peace officer. Jones v. State (Tex. Cr. App.) 65 S. W. 92. A municipal judge is authorized, not only to enforce municipal ordinances, but is given concurrent power of all offenses less than a felony committed within their respective cities. Section 744, R. & B. Code, supra. Sections 6262—11 and 6278, supra, must be construed together, and as so construed a "justice of the peace" and a "magistrate" have power to issue search warrants, and warrants so issued may command the “sheriff” or “constable” or “any peace officer" in the county to search the premises designated.

[3] The city has power to regulate possession of intoxicating liquors not in conflict with the National Prohibition Act (41 Stat. 305) or laws of the state. The state prohibits traffic in all alcoholic liquors, as does the city ordinance; the provision of the state law being incorporated in the city ordinance. The acts recited in the search warrant are a violation of both state law and city ordinance, and may support a search and seizure, while under the National Prohibition Act (section 25) no search warrant shall issue to search any private dwelling occupied as such unless used for unlawful sale, etc. No such inhibition rests in the state law or city ordinance, and the laws of the state where not inconsistent with the National Prohibition Act are in force. U. S. v. Peterson et al. (D. C. Wash.) 268 Fed. 865.

[4] A police judge, having the power of a magistrate or a justice of the peace, has power to issue a search warrant based upon a sufficient state of facts. A reason being shown, and a search and seizure being made by a peace officer, to whom the warrant was issued, the search was legal and the seizure lawful.

The purpose of section 25, supra, was not to establish a special rule of evidence for prosecutions under the National Prohibition Act, but rather to define probable cause under the act for search. A search having been made under a local statute which was legal and the seizure therefore lawful, section 25, supra, does not change the lawful possession to unlawful when offered as evidence by the United States in a prosecution for a violation of the National Prohibition Act."

The motion is denied.

PUBLIC SERVICE CORPORATION OF NEW JERSEY et al. v. HEROLD

(ten cases).
SAME V. MOFFETT (three cases).

(District Court, D. New Jersey. June 14, 1921.) Internal revenue m2, 38—1916 act held to extend time for claim for refund,

but not for suit for refund against the collector.

As respects the right to recover taxes illegally collected, for the years 1909 and 1910, under the Corporation Excise Tax Law, hell, that Act Sept. 8. 1916, § 14a (Comp. St. § 6336n), allowing claims for refund of taxes illegally collected under the 1909 act to be presented, notwithstanding the provisions of Rev. St. $ 3228 (Comp. St. § 5951), which sets a two-year limitation for such presentation, does not repeal Rev. St. § 3227 (section 5950), barring suits for the recovery of any internal revenue tax illegally collected, unless brought within two years after the cause of action accrued, and therefore does not rerive the right, otherwise barred by Rev. St. $$ 3226, 3227 (sections 5949, 5950), to sue the collector, but only revives the right. if harred by Rev. St. § 3228 (section 5951), to file a claim with the Commissioner.

At Law. Ten cases by the Public Service Corporation of New Jersey and others against Herman C. H. Herold and three cases by the same plaintiffs against Isaac Moffett. On motions for judgment on the pleadings. Judgment for defendants.

E. A. Armstrong and Frank Bergen, both of Newark, N. J., for plaintiffs.

Wayne Johnson, of Washington, D. C., John M. Sternhagen, of New York City, and A, L. Boulware, of Washington, D. C., for defendants.

1 NOTE.—On the day this decision was filed, the Supreme Court filed a decision in Burdeau v. McDowell, 255 U. S. -, 41 Sup. Ct. 574, 65 L. Ed. - in which it held that papers stolen from another, and thereafter sent to agents of the Department of Justice, they having no part in wrongfully obtaining them, might be produced in evidence against the person from whom stolen, and not be violative of any constitutional provision, and a petition to direct a return was denied.

(273 F.) RELLSTAB, District Judge. These cases come before the court on the pleadings and certain facts agreed upon at the hearing. Both parties move for judgment.

The plaintiffs seek to recover taxes, paid by them under protest, with interest thereon from the time of their payment. These taxes were assessed against them for the years 1909 and 1910, under the Act of August 5, 1909, commonly called the Corporation Excise Tax Law (36 Stat. 112). In previous litigations between the parties, inyolving these taxes and others assessed under the same act for later years, the taxes were declared illegal, but the plaintiffs were held to be basred from recovering those assessed for the years 1909 and 1910. for failure to claim a refund within the time specified by R. S. § 3228 (Comp. Stat. $ 5951). See Public Service Ry. Co. Cases (D. C.) 227 Fed. 491, 494, 496, 500, affirmed as to 1909 and 1910 taxes (C. C. A. 3) 229 Fed. 902, 144 C. C. A. 184.

Subsequently to the rendition of the last of these decisions and the passage of the act of September 8, 1916 (39 Stat. 756 et seq., Comp. Stat. $ 6336a et seq.), plaintiffs, in accordance with section 14a (Comp. Stat. § 6336n) of that act, presented to the Commissioner of Internal Revenue their claims for a refund of such taxes. The Commissioner rejected the claims, whereupon these suits were instituted. Thereafter the Commissioner, without knowledge of the suits, reconsidered his rejection and allowed the claims. Upon learning of the suits, he, following the practice of the department, canceled their allowance.

The defendants challenge the plaintiffs' right to sue, claiming that the judgments entered in the previous actions are a bar; that they failed to comply with R. S. $$ 3226, 3227, and 3228 (Comp. Stat. $$ 5949– 5951), and that section 14a of the act of September 8, 1916, gives them no right of action. The issues-solely questions of law-call for the interpretation of the following statutory provisions: “Sec. 3220. The Commissioner of Internal Revenue

is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected,

also to repay to any collector or deputy collector the full amount of such sums of money as may be recovered against him in any court, for any internal taxes collected by him, with the cost and expenses of suit; also all damages and costs recovered against any assessor, assistant assessor, collector, deputy collector, or inspector, in any suit l;rought against him by reason of anything done in the due performance of his official duty." 6 U. S. Comp. Stat. $ 5944, p. 6969.

“Sec. 3226. No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected

until appeal shall have been duly made to the Commissioner of Internal Revenue

and a decision of the Commissioner has been had therein: Provided, that if such decision is delayed more than six months from the date of such appeal, then the said suit may be brought, without first haring a decision of the Commissioner at any time within the period limited in the next section.” Id. p. 6985.

"Sec. 3227. No suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected shall be maintained in any court, unless the same is brought within two years next after the cause of action accrued." Id. p. 6989.

"Sec. 3228. All claiins for the refunding of any internal tax alleged to have been erroneously or illegally assessed or collected

must be presented

$

to the Commissioner of Internal Revenue within two years next after the cause of action accrued.” Id. p. 6991.

Act Sept. 8, 1916, § 14a: "That upon the examination of any return of income made pursuant to the act of August fifth, 1909,

* if it shall appear that amounts of tax have been paid in excess of those properly due, the taxpayer shall be permitted to present a claim for refund thereof notwithstanding the provisions of section 3228 of the Revised Statutes." Id. p. 7356.

The act of 1916 contains no repealer of any of these sections of the Revised Statutes, but it does make the time limit in R. S. § 3228, within which the claim must be presented to the Commissioner of Internal Revenue, inapplicable to claims for a refund of taxes illegally collected under the 1909 act. The 1916 act is in recognition of the government's moral obligation to refund taxes illegally collected, and upon the presenting of a claim therefor to the Commissioner, he was authorized by R. S. § 3220, to make payment. But what if he rejected it, or failed to act upon it, within the six months specified in R. S. § 3226? Could a suit thereupon be instituted against the collector for the recovery of such taxes? R. S. § 3227, as noted, in terms bars the suit, "unless the same is brought within two years next after the cause of action accrued.” Ordinarily such cause would accrue upon the payment of the tax. Savings Institution v. Blair, 116 U. S. 200, 204, 6 Sup. Ct. 353, 29 L. Ed. 657. If this limitation with respect to the bringing of suit is controlling, no action for a recovery of such taxes can be brought, either against the United States or its collectors. Did the 1916 act revive the right to bring suit against the collector, as well as the right to file a claim with the Commissioner?

The defendants contend that the legislative purpose of the 1916 act was merely to remove the barrier found in R. S. § 3228, and had no effect whatever upon the limitations found in R. S. $$ 3226 and 3227.

In the present suits it is not necessary to decide whether the 1916 act must be given such limited effect. Much may be said in support of a proposition that a new right or cause of action was given to the taxpayer by that act, but in these suits the only question is whether a new right or cause of action was given against the collectors. The liability of the collectors for a return of these taxes was denied in the previous suits. What is there in this act that even points to a revival of their liability? The taxes illegally collected having been paid into the United States Treasury, as required by the statute (R. S. § 3210 [Comp. Stat. § 5932]), the moral obligation to return it rested on the government and not the collectors. The 1916 act removed the legal disability (the bar of R. S. § 3228), which prevented the government from discharging its moral obligations. This is all that this act expressly did. If it may be said that by so doing there arose an implied promise to pay, it was that of the government, and not that of the collectors, through whom the taxes reached its treasury.

So far as they are concerned, the former adjudications are their sufficient defense. The defendants are entitled to judgments of no cause of action.

(273 F.)
THE ALBATROSS.

THE ALDEN A, MILLS.
(District Court, D. Massachusetts. June 2, 1921.)

Nos. 1768, 1923. 1. Collision San 82 (2)—Speed in fog in frequented waters too great to stop within seeing distance is immoderate.

A vessel proceeding during a fog in frequented waters at such speed that she cannot stop within seeing distance of another vessel is going at

an immoderate speed, and is at fault for a collision resulting therefrom. 2. Collision Om 82 (2)—Vessel held at fault for reversing engines.

A vessel which had just backed out from her pier in a fog and had started her engines forward, when another vessel was seen heading directly toward her amidships on her port side, was at fault for reversing her engines, since it was her duty to maintain her course, and the duty of the other vessel to pass under her stern, and is liable for a col. lision when sbe was struck so near the stern that it was evident the other vessel would have cleared her, if she had not reversed, notwithstanding her master's claim that the collision was inevitable, and he reversed mere

ly to receive the blow in a less vulnerable spot. 3. Collision m81—Vessel held at fault for requiring other duties of lookout

in a fog.

A vessel just backing from her pier in a fog was at fault for requiring the lookout in her bow to take in the bow line, since a lookout should be given no other work which interferes with that duty, especially on congested waters in a fog.

In Admiralty. Separate libels by the Commonwealth Fisheries Company against the steamer Albatross, and by the Albatross Company against the steam trawler Alden A. Mills, to recover damages for injuries resulting from a collision between the two vessels. Decree rendered, finding each vessel at fault and dividing the damages.

In No. 1768 :
Currier & Young, of Boston, Mass., for libelant.

Richard H. Wiswall, Hill, Barlow & Homans, and Blodgett, Jones,
Burnham & Bingham, all of Boston, Mass., for claimant.
In No. 1923:

Blodgett, Jones, Burnham & Bingham, of Boston, Mass., for libelant.

MORTON, District Judge. This is a case of collision in a fog in Boston Harbor between the steam trawlers Alden A. Mills and Albatross. It took place at about 9:15 on December 23, 1919, abreast the wharf of the Boston Marine Company in East Boston. There was no wind or sea; the fog was dense.

The Albatross was proceeding down the harbor, heading diagonally across it on a long slant toward the west shore. She had at least two men on lookout on her forward deck, her master on the bridge, a man at the wheel, and the mate in the pilot house, blowing fog signals. The bow lookout reported a vessel ahead. The master was unable at that time to see the vessel ; but by his orders the engines were immediately

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