Suessenbach v. First Nat. Bank of Deadwood (149 U. S. 787)... Sun Printing & Pub. Ass'n v. Smith (149 U. S. 787).... .....1052 Sutliff v. Board of County Com'rs of 768 Lake County (147 U. S. 230)...... ....1049 Swan Land & Cattle Co. v. Frank (148 833 U. S. 603).... Smith v. Thomson (149 U. E. 786).....1052 318 .... Smith, Locke v. (149 U. S. 780)... Smith, Pearsall v. (149 U. S. 231). Smith, Sun Printing & Pub. Ass'n v. (149 U. S. 787)... ....1052 Smithmeyer v. United States (147 U. S. 342) 321 Snyder, Martin v. (148 U. S. 663)....... 706 Snyder, United States v. (149 U. S. 210).. 846 Soby, Hubbard v. (146 U. S. 56)..... Southern Pac. Co. v. Denton (146 U. S. 202) ..... 691 13 44 Swayne, Hager v. (149 U. S. 242). 841 ... ....... .1051 Telegraph Printing Co., Harvey v. (149 U. S. 775)... ..1047 Spanish-American Light & Power Co., La Sperry v. Levins (149 U. S. 787)........1052 142 ..1049 Texas & P. R. Co. v. Nelson (149 U. S. 788) Third Ave. R. Co., Railway Register Manuf'g Co. v. (149 U. S. 783)........1051 Third Ave. R. Co., Root v. (146 U. S. 210) 100 Thomas v. Western Car Co. (149 U. s. 95) 824 Thompson v. Carlisle (149 U. S. 788)....1053 Thompson v. St. Nicholas Nat. Bank (146 U. S. 240). 66 Thompson, Derby v. (146 U. S. 476)..... 181 Thomson, Smith v. (149 U. S. 786)......1052 Thorington v. City Council of Montgomery (147 U. S. 490)..... .1053 ..... 394 Tiernan, Giozza v. (148 U. S. 657).... 721 Tiernan, Giozza v. (149 U. S. 774)......1047 Tobriner, Washington & G. R. Co. v. ..... 239 State of Indiana v. United States (148 U. S. 148)..... 564 .1051 Ulrich v. McGowan (149 U. S. 789).....1053 United States v. Wanamaker (147 U. S. 279 United States, Abadie v. (149 U. S. 261).. 836 United States, Arnold, Constable & Co. v. (147 U. S. 494).. 406 United States, Benson v. (146 U. S. 325).. 60 United States, Cameron v. (146 U. S. 533) 184 United States, Cameron v. (148 U. S. 301) 595 United States, Curtner v. (149 U. S. 662) 935 United States, Curtner v. (149 U. S. 662)..1041 United States, Earnshaw v. (146 U. S. 60) .. 14 United States, Fong Yue Ting v. (149 U. S. 698).. .1016 529 702 465 872 874 622 79 United States v. Dumas (149 U. S. 278).. ... 465 650 24 152 163 United States v. Tanner (147 U. S. 661).. 436 United States v. Taylor (147 U. S. 695).. 479 United States, German Bank of Memphis CASES ARGUED AND DETERMINED IN THE UNITED STATES SUPREME COURT. OCTOBER TERM, 1892. (146 U. S. 196) STOTESBURY et al. v. UNITED STATES. INTERNAL Revenue-ILLEGAL TAXATION -POWER Appeal from the court of claims. firmed. "I hereby certify that the foregoing claims for the refunding of taxes erroneously assessed and paid have been examined and allowed, and are transmitted to the secretary of the treasury for his consideration and advisement. A. PLEASONTON, Commissioner." *On August 8, 1871, Commissioner Pleasonton resigned, and on the next day J. W. Douglass, having been duly appointed his successor, entered upon the discharge of the Af-duties of the office. On that day the secretary of the treasury sent to him this letter: Statement by Mr. Justice BREWER: On December 19, 1870, the firm of Harris & Stotesbury appealed to the commissioner of internal revenue for the refunding of $67,335.85, internal revenue taxes claimed to have been erroneously assessed and collected from them. This claim was examined and rejected, and notice thereof given to the claimants. An application for a rehearing was made and sustained. On July 26, | 1871, the commissioner, having examined the claim, signed and transmitted to the secretary of the treasury the following schedule: v.13s.c.-1 "Treasury Department, "Washington, D. C., August 9, 1871. "Sir: The inclosed refunding claims of Harris & Stotesbury and Harris, Heyle & Co., transmitted by your predecessor to this office for approval, would seem to have been passed by a reversal of the construction of the law relative to sugar manufactures which obtained during the whole period of its exist ence. "Under these circumstances, I deem it proper to return them to you for re-examina 198 tion, declining to consider them unless again submitted by your office. Respectfully yours, "GEO. S. BOUTWELL, "Secretary of the Treasury. "Hon. J. W. Douglass, Com'r of Int. Revenue." And on the 9th of November, 1871, the commissioner indorsed on the claim these words: "November 9, 1871. Rejected on re-examination. J. W. Douglass, Commissioner,"—notice of which action was duly given to the claimants. On the wrapper or jacket inclosing the papers in this claim appear the following indorsements: "(Office of Internal Revenue. Rec'd Dec. 19, 70. Div. 1, sec. 3.) Coll'r not'd Dec. 20, '70. J. D. 3395. Wrote claimants Nov. 13, '71. J. D. 12, 21, '70. (46) Claim for refunding taxes collected. Serial No. 18. No. of draft, $67, Collector. "Assessed upon sp. tax sugar refiners. Basis of claim: Claims that they do not refine sugar. Nov. 9, 1871, rejected on re-examination. [Signed] J. W. DOUGLASS, Comm'r. Examined and rejected Dec. 19, 1870, by[Signed] CHS. CHESLEY. Allowed by commissioner, July 26, 1871. [Signed] A. PLEASONTON, Commissioner." No notice was given to the claimants of the action of Commissioner Pleasonton, and it does not appear that they were aware of it until 1880, when, on being informed thereof, they made application for the payment of the money as having been duly allowed them by such decision of Commissioner Pleasonton. This application was denied, but the question of the liability of the government was transmitted by the secretary of the treasury to the court of claims. A petition in that court was filed in the name of Thomas P. Stotesbury, sole surviving partner of Harris & Stotesbury, and afterwards, on his death, the suit was revived in the name of the present appellants, his executors. The decision was in favor of the government, (23 Ct. Cl. 285,) from which decision the executors brought this appeal. Enoch Totten and Thomas W. Neill, for appellants. Asst. Atty. Gen. Cotton, for the United States. Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. The court of claims decided that the action of Commissioner Pleasonton did not constitute a final award binding the government; and whether it was so or not is the question presented to us for decision. The law under which the commissioner acted is found in section 3220, Rev. St.: "The commissioner of internal revenue, subject to regulations prescribed by the secretary of the treasury, is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without aujustly assessed, or excessive in amount, or in thority, and all taxes that appear to be unany manner wrongfully collected." Regulations were prescribed by the secretary of the treasury, the only ones of importance in this case being the 3d, 4th, 5th, and 7th, as follows: "(3) When the appeal has been fully heard and examined, the commissioner of internal revenue must put into the case a certificate of his decision or judgment, with the amount in writing which should be paid back. "(4) A proper book or docket must be carefully kept in the office of the commissioner of internal revenue, in which should be entered, under its proper date, the name of the claimant, with the amount of the tax which is the subject of appeal, and the final decision of the said commissioner. "(5) When, from time to time, and as the commissioner of internal revenue in the course of his public duties shall complete his examination and give his judgment on these appeal cases, he will transmit a weekly list of them to the first comptroller of the treasury, together with all the vouchers upon which, as evidence, he rests his decision, as a matter of account, giving upon the list the proper date, the name of the claimant, and the amount found due each claimant." "(7) Where the case of an appeal involves an amount exceeding two hundred and fifty dollars, and before it is finally decided, the commissioner of internal revenue will transmit the case, with the evidence in support of it, to the secretary of the treasury for his consideration and advisement." It is contended by appellants that the duty much, shall be returned to claimants, is comof determining whether any, and, if so, how mitted by section 3220 to the commissioner; that the secretary has no revising power; and that the regulations which he may prescribe are in respect to the manner of payment, and cannot determine the procedure to be followed by the commissioner in hearing and deciding upon claims. It may be conceded that the power of final decision is vested in the commissioner, and that there is no appeal from him to the secretary of the treasury; but without inconsistency the power of decision may be vested in one person, and the ordering of rules of procedure in another. Indeed, in ordinary litigation the one is given to the judiciary, while the other is largely prescribed by the legislature. Here the authority to the secretary to prescribe regulations is given in full and general terms, and certainly it is a very reasonable regulation *200 |