#### MERCHANTS’ NATIONAL BANK OF BALTIMORE v. THE UNITED STATES.

[No. 28121.

Decided December 3, 1906.]

*On the Proofs.*

Tlie claimant, a State bank, is converted into a national bank in June, 1805. At various times subsequent to July 1, 1887, its outstanding circulation is less than 5 per cent of its chartered capital, but it is required to pay the tax on such outstanding circulation. The suit is to recover back the duties so paid.

I. The banking and internal-revenue acts of 25th February, 1803; 3d ¡March, 1803; 3d June, 1804; 30th’June, 1804; 3d March, 1805; 13th July, 1806; 14th March, 1900; and Revised Statutes, sections 3408, 3410, 3411, 3416, 3417, and 5214 considered and interpreted.

II. The statutory provisions embodied in the Revised Statutes (sections 3410, 3411, 3417), which declare that whenever the outstanding circulation of any bank does not exceed 5 per cent of its' capital *“said circulation shall he free from taxation,”*does not extend to national banks. It was intended only as an inducement to State banks to be converted into national banks by exempting from taxation all their circulating medium below 5 per cent of their capital, issued and emitted under State organization.

*7III. The purpose of the semiannual tax of 2 per cent on the amount of the circulating notes of a national bank was not revenue, but to reimburse the Treasury for expenses incurred in printing the notes and all other expenses. The purpose of the tax on the State banks was revenue, coupled with the policy of ultimately compelling the retirement of State-bank notes.

IY. When the language of a statute is free from ambiguity its words shall be given their usually accepted meaning; but where a general word follows particular and specific words of the same nature its meaning shall be restricted to the same genus as the particular words.

Y. Sections 3410 and 3411 of the Revised Statutes, as printed, are misleading. They should be construed together as one sentence, connected by the conjunction *“and,"*as in the original acts.

YI. When in doubt as to the scope of an act, courts may go beyond it to ascertain the legislative intent. The object to be accomplished at the time of its enactment is of paramount importance in giving effect to an act.

YII. In the construction of the Revised Statutes courts can not refer to the antecedent legislation embodied therein to create a doubt, but they can to solve one.

*The Reporters'*statement of the case:

The following are the facts of the case as found, by the court:

I. The claimant was incorporated by the general assembly of the State of Maryland by the act of 1834, chapter 210', under the name of the Merchants’ Bank of Baltimore; and on June *7,*1865, was duly converted under the provisions of “ the national-bank act ” into a national banking association, with a capital stock of $1,500,000; and its corporate existence was extended for a period of twenty years from June *7,*1885, in accordance with the provisions of the act of Congress of July 12, 1882 (22 Stat. L., 162) ; and the corporate existence of the claimant was again extended for another term of twenty years from June *7,*1905, in accordance with the provisions of the act of Congress of April 12, 1902 (32 Stat. L., 102).

II. The claimant has always had, ever since its organization, and now has, a chartered or declared capital of $1,500,000.

*8III. From the organization of the claimant under the national-bank act until the 1st day of July, 1881, it always had circulating notes outstanding in excess of $15,000.

IY. On the 1st day of July, 1881, the claimant had outstanding in circulating notes the sum of $180,000, and the outstanding circulation varied from that date in the following manner:

1887. July 1 to October 28_$180, 000

. October 29 to December 31_ 45, 000

1888. January 1 to June 30_ 45, 000

July 1 to December 31_ 45, 000

1889. January 1 to June 30_ 45, 000

July 1 to December 31_ 45, 000

1890. January 1 to June 30_ 45, 000

July 1 to December 31_ . 50, 700

1891. January 1 to June 30_ 61,700

July 1 to July 21_ 56,900

July 22 to August 4_ 55, 400

August 5 to August 18_ 130,100

August 19 to August 21_ 124, 400

August 22 to August 28_ 128, 900

August 29 to September 1_ 130,100

September 2 to September 25_ 135, 000

September 26 to October 23- 133, 300

October 24 to October 27_ 125, 070

October 28 to November 17___'_ 132, 450

November 18 to November 20_ 127, 800

November 21 to December 13_ 130, 800

December 14 to December 15_ 128, 090

December 16 to December 22--- 156,150

December 23 to December 27__ 168,150

December 28 to December 31_ 180, 000

Y. From January 1, 1892, to January 1, 1894, the outstanding circulation of the claimant always exceeded $15,000, or 5 per cent of its chartered capital.

YI. On January 1, 1894, the claimant had an outstanding-circulation of $313,000, and the same varied from that date in the following manner:

1894. January 1 to January 5_$313, 000

January 6 to January 11_,_ 223, 000

January 12 to June 30_ 45, 000

July 1 to December 31_ 45,000

1895. January 1 to June 30- 45, 000

July 1 to December 31_ 45, 000

*91896. January 1 to June 30_ $45, 000

July 1 to December 31_ 45,000

1897. January 1 to June 30_ 45, 000

November 3 to December 5_ 72, 000

December 6 to December 12_ 70, 000

December 13 to December 18-r-82, 000

December 19 to.December 21-121, 270

December 22 to December 31-141, 270

VII. From January 1, 1899, to July 1, 1901, the outstanding circulation of the claimant always exceeded $75,000, or 5 per cent of its chartered capital.

VIII. On July 1, 1901, the claimant had an outstanding-circulation of $510,300, and the same varied from that date in the following manner:

1901.. July 1 to July 7_ $510, 300

July 8 to July-18_ 506,300

July 19 to July 21_ 497, 300

July 22 to July 24_ 514, 000

July 25 to July 28_-- 527, 000

' July 29 to August 6_•- 522,100

August 7 to August 15_ 517, 000

August 16 to August 18_ 317, 000

August 19 to August 26_ 321, 900

August 27 to September 5_ 327, 000

September 6 to December 31- 50, 000

1902. January 1 to June 30_ 50, .000

July 1 to October 12- 50, 000

October 13 to December 31- 225, 000

1903. January 1 to March 4- 225, 000

March 5 to June 30_ 50,000

July 1 to December 31_ 50, 000

1904. January 1 to June 30- 50, 000

IX. The claimant paid to the Treasurer of the United States during the named months the following sums of money as duty on its outstanding circulation, and the average outstanding circulation on which duties were based were as follows:

January, 1888 $661. 55 $132, 310

July, 1888-225. 00 45, 000

January, 1889 225. 00 45, 000

July, 1889 — 225. 00 45, 000

January, 1890 225. 00 . 45, 000

July, 1890-225. 00 45, 000

*10January, 1891 $253. 50 $50, 700

July, 1891_ 308. 50 61, 700

January, 1802 602. 66 120, 532

July, 1894_ 283. 00 56, 600

January, 1895 225. 00 45, 000

July, 1895_ 225. 00 45, 000

January, 1896 225. 00 45, 000

July, 1896_ 225. 00 45, 000

January, 1897 225. 00 45, 000

July, 1897_ 225. 00 45, 000

January, 1S9S 225. 00 45, 000

July, 1898_ 225. 00 45, 000

January, 1899 292. 00 58, 400

January, 1902 485. 57 194, 228

July, 1902_ 125. 00 50, 000

January, 1903 315. 00 126, 000

July, 1903_ 332. 35 132, 940

January, ,1904 125. 00 50, 000

July, 1904_ 125. 00 50, 000

X. The sums of money paid and the months of payment are as follows:

January, 18S8_ $74. 55 January, 1897_ 225. 00

July, 1888_ 225.00 July, 1897_ 225.00

January, 1889_ 225. 00 January, 1898_ 225. 00

July, 1889_ 225. 00 July, 1S98_ 225.00

January, 1890_ 225. 00 January, 1900_ 230. 50

July, 1S90_ 225. 00 January, 1902_ 72. 30

January, 1891- 253. 50 July, 1902_ 125. 00

July, 1891_ 308.50 January, 1903- 70. 44

January, 1892_ 57.60 July, 1903_ 136.56

July, 1894_ 209.00 January, 1904_ 125. 00

January, 1895- 225. 00 July, 1904- 125. 00

July, 1895___ 225. 00

January, 1896 _ 225. 00 Total_4,713.01

July, 1896_ 225.00

XI. The claimant, on the 17th of November, 1904, did state an account and make application to the Treasurer of the United States requesting a refund of the duties or. taxes paid in excess, as above set forth, amounting in all to $4,713.01, and the said request was refused by the Treasurer of the United States in a letter to the claimant dated the 11th day of March, 1905.

*11
      *Mr. J. Hanson Thomas*and *Mr. Arthur G. Brown*for the claimant. *Messrs. MoCammon and Hayden*and *Mr. Ormsby MeOammon*were on the brief:

The claimant in this case is an association taxed under and by virtue of the title “ National Banks,” and its outstanding circulation during the semiannual periods for which a claim for a refund is being made was reduced, to an amount not exceeding 5 per centum of its chartered capital at the time the said circulation was issued, and we respectfully submit that, by the terms of the statute, it is exempt from taxation.

Does section 1069 of the Revised Statutes bar the right to recover the payments made by the claimant more than six years before this suit was instituted?

Section 5218 provides a method for the refunding of taxes, paid in excess, by the bank stating an account to the Treasurer of the United States, which, on being certified by him and found correct by the First Comptroller of the Treasury, shall be refunded in the ordinary manner by warrant on the Treasury. This section limits no time within which application must be made to the Treasury Department for the refund of taxes paid in excess. The Treasury authorities would not have the power to fix such a limit, and when a demand is made for a refund on a correct account, it is the duty of the Treasury authorities to refund it in ordinary manner, without regard to the period of time which has elapsed since the taxes were paid.

The taxes paid in excess of the amount lawfully due are held by the Treasury Department upon an implied trust to refund them on demand, and it is not until a demand has been made and refused that a cause of action accrues to the claimant.

The general rule is that when a trustee unequivocally repudiates a trust and claims to hold an estate as his own and not subject to the trust, and such repudiation is brought to the knowledge of the *cestui qui*trust in such manner that he is called upon to assert his rights, the statute of limitations will begin to run against him from the time such knowledge is brought home to him and not before. In analogy to this *12rule, the right of the claimant to recover the money which the Government holds as trustee did not become a claim on which suit could be brought, and such as was cognizable by the Court of Claims, until a demand therefor had been made at the Treasury. Upon such demand the claim first accrued. As this suit is brought within six j^ears from the date of the demand, it falls within the terms of the section giving jurisdiction to the Court of Claims, and is not cut off by the lapse of time. *(United States*v. Taylor, 104 U. S., 216; *Medbury*v. *United*States, 173 TJ. S., 492, 497.)

In the case of *Harrison*v. *United*States, 20 C. Cls., 176, the question arose whether limitations applied to a claim for a refund of money collected as a direct tax without warranty of law. The claim for a refund was based upon the joint resolution of 25th February, 1867 (14 Stat. L., 568, sec. 4), that authorized the Secretary of the Treasurj'" to refund to persons from whom mqney had been received without warrant of law, as in payment of direct taxes, the sums so illegally collected; such refunding to be ordered on the presentation of satisfactory evidence of the illegal collection.

Demand was made upon the Secretary of the Treasury for a refund of the money illegally collected, and the demand was refused. The court held that limitations began to run only from the time of the refusal of the Secretary of the Treasury to pay the claim.

In the *Harrison ease*the money was “ to be refunded on the presentation of satisfactory evidence of the illegal collection.” In this case it is to be refunded when the account is certified bjr the Treasurer of the United States and found correct by the First Comptroller of the Treasury.

In both cases the legislative purpose is the refunding of. money in the Treasury which the Government can not in equity and good conscience retain. (See also *Simon*v. *United States,*19 C. Cls.j 601.)

*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

Booth, J.,

delivered the opinion of the court:

This suit is brought to recover duties paid by the claimant alleged to be in excess of the amount lawfully due on its *13average circulation during certain semiannual periods between July, 1887, and July, 1904, as more fully appears in the findings.

The taxes here in controversy were collected by the Treasurer of the United States by virtue of section 5214 of the Bevised Statutes:

“ In lieu of all existing taxes every association shall pay to the Treasurer of the United States, in the months of January and July, a duty of one-half of one per centum each half year upon the average amount of its notes in circulation.”

The claim is predicated upon Bevised Statutes, section 3411:

“ Whenever the outstanding circulation of any bank, association, corporation, company, or person is reduced to an amount not exceeding five per centum of the chartered or declared capital existing at the time the same was issued, said circulation shall be free from taxation.”

Claimant contends that section 3417 of the Bevised Statutes effectuates section 3411 *(supra)*as a limitation upon the exaction of duty under section 5214, Bevised Statutes (supra), so that when the average amount of its circulation was not in excess of 5 per cent of its capital it was exempt from payment of the same.

Section 3417 is as follows

“ The provisions of this chapter, relating to the tax on the deposits, capital, and circulation of banks, and to their‘returns, except as contained in sections thirty-four hundred and ten, thirty-four hundred and eleven, thirty-four hundred and twelve (thirty-four hundred and thirteen), and thirty-four hundred and sixteen, and such parts of sections.thirty-four hundred and fourteen, and thirty-four hundred and fifteen as relate to the tax of ten per centum on certain notes, shall not apply to associations which are taxed under and by virtue of title £ National banks.’ ”

The statutes here in controversy were originally enacted at a time when the Congress had under special consideration the provision of a uniform and stable currency. It is deemed unnecessary to advert in detail to the historical incidents of the times leading up to and culminating in the passage of the act of February 25, 1863, known as the national banking act. No tax of any character upon the circulation *14of a bank had been imposed until the act of February 25, 1863. This statute did not, however, impose any tax upon the circulation of State banks. It provided in terms and under penalty that any bank not coming within the provisions of the statute issuing notes intended to circulate as money should make return thereof semiannually to the Comptroller of the Currency. The act of March 3, 1863 (12 Stat. L., 112), was the first statute imposing a tax upon the circulation of State banks. Section 7 of this act imposed a graduated tax upon the circulation of State banks in proportion to the average amount of the same, as in terms enumerated therein; it likewise provided for a similar tax upon the circulation of national banks to be assessed and collected under the national banking act.

Section 7 appears under and is a part of the act of March 3, 1863, entitled “An act to amend an act entitled ‘An act to provide internal revenue to support the Government and pay interest on the public debt.’ ”

The act of June 30, 1864 (13 Stat. L., 277), being an act to provide wa3>'s and means for the support of the Government, continued the tax upon the average circulation of State banks, but in express terms exempted from its operation all “ associations which are taxed under and by virtue of the act to provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,” leaving the act of June 30, 1864, in so far as the imposition of a tax upon the circulation of banks is concerned, applicable only to those banks and banking-associations not organized under the act of February 25,1863. The tax imposed upon the circulation of State banks by the act of June 30, 1864, was identical with the former tax, save only as to method of payments. Observable in this connection is the fact that from and after the passage of the act of March 3, 1863 (sufra), the imposition of taxes upon the.circulation of State and national banks per se was no longer combined in one statute, being entirely divorced and considered by the Congress under separate and distinct titles, the imposition of taxes upon the circulation of State banks appearing under the title of internal revenue and those of national banks under the national banking act.

*15The act of July 13, 1866 (14 Stat. L., 136), provides for a continuation of the tax upon the average circulation of State banks, section 110 of said act being subsequently carried into the Bevised Statutes as section 3408.

Section 44 of the act of June 3, 1864 (13 Stat. L., 112), provides for the conversion of State banks into national banks, and section 14 of the act of March 3, 1865 (13 Stat. L., 484), relating to the same subject, provides in terms as follows:

“ That the capital of any State bank or banking association which has ceased or shall cease to exist, or which has been or shall be converted into a national bank, for all the purposes of the act to which this is an amendment, shall be assumed to be the capital as it existed immediately before such bank ceased to exist or was converted as aforesaid. And whenever the outstanding circulation of any bank, association, corporation, company, or person shall be reduced to an amount not exceeding five per centum of the chartered or declared capital existing at the time the same was issued, said circulation shall be free from taxation. And whenever any State bank or banking association has been converted into a national banking association, and such national banking association has assumed the liabilities of such State bank or banking association, including the redemption of its bills, such national banking association shall be held to make the required return and payment on the circulation outstanding, so long as such circulation shall exceed five per centum of the capital before such conversion of such State bank or banking association.”

Said section 14 as amended by section 9 of the act of July Í3, 1866 (14 Stat. L., 146), was carried into the Bevised Statutes as sections 3410 and 3411. Standing in separate sections it is misleading. The two sections should be considered as one, as in the original act, to arrive at their true meaning. The evolution of the legislation effecting taxes upon the circulation of State banks which Ave have traced clearly indicates an intention upon the part of the Congress, from and after the passage and successful operation of the national banking act, to retire State bank circulation.

Section 6 of the act of March 3, 1865 (supra), providing for a tax of 10 per cent on the amount of notes of any State bank paid out by any national or State banking association after July 1, 1866, manifestly was intended as cumulative *16and restrictive legislation, tending to diminish the existence of State banks and encourage, if not compel, their conversion into national banks. Sections 7 and 14 of the act of March 3, 1865, reenforce the contention by offering the additional inducement of relief from taxation to all State banks converted under this act into national banks upon all their circulating medium below 5 per cent of their charter or declared capital issued and emitted under State organization.

The Congress was dealing with State banks and State banking associations in enacting the legislation culminating in the passage of sections 3411 and 3417 of the Bevised Statutes. The exceptions contained in section 3417 of the Revised Statutes manifestly were intended to cover the tax imposed upon the circulation of State banks taken over and assumed by national banks upon their conversion into a national bank and not upon the average circulation of a national bank as such.

And this is clear from section 9 of the act of July 13, . 1866 (14 Stat. L., 146), carried into the Revised Statutes as sections 3410, 3411, 3412, and 3416, the latter of which sections provides, in substance, that when a national bank assumes the liabilities of a State bank such national bank is thereby required to pay the tax on the circulation of such State bank so long as it exceeds 5 per cent of. the capital before such conversion of such State bank or banking association.

Section 19 of the act of February 25, 1863 *{supra),*after providing for the procurement and control of plates and special dies for the printing of national-bank notes, by the Comptroller of the Currency, expressly charges the expense thereof to the contingent fund of the Treasury Department, and for the purpose of reimbursing the Treasury Department, and “ all other expenses incurred under this act, and in lieu of all taxes upon the circulation authorized by this act,” imposes a semiannual tax of 2 per cent on the amount of circulating notes received by any national bank.

Section 41 of the act of June 3, 1864 (13 Stat. L., 110), provided for the payment of the expenses incurred in administering the national banking act by the Bureau of the Comptroller of the Currency out of the proceeds of the taxes or *17duties assessed on the circulation of national banks. The act reduced the tax on the average circulation of a national bank to 1 per cent, payable semiannually, and, to provide for whatever deficit thereby caused, extended a small tax upon deposits and capital stock of each association — a pronounced encouragement to such associations to increase their average circulation under the provisions of the act. Section 41 of the act of June 30, 1864, was carried into the Revised Statutes as section 5214, and the tax imposed by the act of June 3, 1864, remains the same, except as amended by section 13 of the act of March 14, 1900.

The duty imposed upon the circulation of a national bank ' by the act of February 25, 1863, has been decreased as to amount by succeeding Congresses, but never increased or discontinued. The act of February 25, 1863, as before observed, imposed no tax upon the circulation of State banks, their circulating medium being the only currency of the country at the time of its passage. Subsequent legislation as respects the circulation of State banks, beginning with the act of March 3, 1863, and culminating in the enactment of sections 3408 and 3412, Revised Statutes, not only continues the .tax upon the circulation of the State bank issuing and emitting the same, but extends to it, and to all other banks of whatever character, a- tax of 10 per cent “ upon the notes of any person, or any State bank or State banking association, used for circulation and paid out by them.” This later legislation, having accomplished its ultimate purpose, viz, the retirement of State-bank circulation, it became expedient to modify its harshness, as well as to encourage the organization of national banks by limiting its application to the extent of taxing only so much of the average circulation of State banks, subsequently converted into national banks, as exceeded 5 per cent of its chartered or declared capital, as was done by section 3411, Revised Statutes. It is clear that sections 3411 and 3412, though applicable to separate and distinct impositions of taxes, could have no other effect than to promptly reduce State-bank circulation to the minimum exempted from taxation by the 5 per cent clause. It is difficult to perceive how extended *18circulation of State-bank currency could obtain under section 3412, Revised Statutes. That the legislation affecting State banks and State-bank circulation did accomplish the purpose for which it was designated is fully demonstrated by the entire absence of State-bank notes as a part of our circulating medium.

The policy of the Congress in dealing with national banks has been decidedly in favor of encouraging the issue and emission of their circulating medium. The act of March 14, 1900, permitting the issue and emission bj^ national banking associations of circulating notes equal in amount to the par value of the United States bonds deposited to secure the same, was a recognition of the public demand for increased amount of currency. The most potent criticism against the entire system of national-bank circulation has been its inability to at all times meet urgent demands for more currency. To hold that section 3411 of the Revised Statutes operated as a limitation upon the collection of a duty specifically imposed to defray the expenses of carrying into operation the national banking act, would be in direct contradiction of the intention of the Congress manifested in the enactment of the same. It would tend as an inducement to decrease circulation of national banks and thus directly defeat the result sought to be acomplished by the act of March 14, 1900 (supra), and all prior legislation upon the same subject.

While the terms “ tax ” and “ duty ” have been employed in the phraseology of the statutes upon this subject, still in legal signification the amount imposed upon the average circulation of national banks by section 5214, Revised Statutes, is not a revenue measure. Mr. Justice Harlan, in *Twin City Bank*v. *Nebeker*(167 U. S., 203), speaking directly upon the subject, uses this language:

“ The main purpose that Congress had in view was to provide a national currency based upon United States bonds, and to that end it was deemed wise to impose the tax in question. The tax was a means for effectually acomplishing the.' great object of giving to the people a currency that ■would rest, primarily, upon the honor of the United States and be available in every part of the country. There was no purpose by the act or by any of its provisions to raise revenue *19to be applied in meeting the expenses or obligations of the Government.”

Sections 3411 and 5214, Revised Statutes, are not acts in *pari materia;*they have distinct and separate applicability. One supplemented by section 3412, Revised Statutes, is part of a general legislative scheme limited by every intendment of law to the control and suppression of a currency system founded, as was said by Chief Justice Chase in *Veazie Bank*v. *Fenno*(supra), wherein the act of March 3, 1865, was under consideration on “ Bank notes issued by numerous independent colorations variously organized under State legislation, of various degrees of credit and very unequal resources, administered often with great, and not unfrequently with little skill, prudence, and integrity.” The other was and is a legislative imposition of a small duty, so inconsequential as not to prohibit or restrict the issue and emission of a currency proven by experience to rest upon a solvent system and to assist in part in the payment of the expenses of the bureau of the Government charged with the administration of the national banking act.

__ Section 5173, Revised Statutes, appropriates the sums realized from taxes imposed by section 5214 to the payment of the expenses incurred by the Comptroller of the Currency in procuring plates and dies for the printing of circulating notes of national banks. It is insisted that the Congress, having employed the general word,' “ Whenever the outstanding circulation of *any*bank,” *ex vi termini*must have intended to include national as well as State banking associations within its operation.

In giving effect to a statute courts are charged with the duty of ascertaining the legislative intent. When the language employed is clear and free from ambiguity the words are to be given their common and usually accepted meaning as applied to the subject-matter with regard to which they are used; but where a general word follows one or more particular and specific words of the same nature as itself its meaning is derived from them, and it is restricted to the sanie genus as the particular words. The principle of *ejus-dem generis*applies. As before observed, sections 3410 and *203411, as they appear in the Revised Statutes, are misleading; they should be construed together as in the original enactments, wherein the subject-matter is treated in one sentence. In the revision the one sentence is divided into sections. 3410 and 3411, omitting the conjunction “ and,” which in the original act connects the two clauses of a single sentence. Courts are not precluded by the language of a statute, when in doubt as to the scope of the act, from going beyond it to ascertain legislative intention. The object to be accomplished by the act, keeping in view the conditions existing at the time of its passage, is of paramount importance in giving effect to statutes of doubtful meaning. (Endlich on Interpretation of Statutes, sec. 86, p. 115; *United States*v. Moore, 95 U. S., 760.) In *Smythe*v. *Fiske*(23 Wall., 380), cited in defendants’ brief, the court said: “A thing may be within the letter of a statute and not within its meaning, and within its meaning but not within its letter. The intention of the lawmaker is the law. * * * Where doubt exists as to the meaning of a statute, the title may be looked to for aid in its construction. The preexisting law and the reason and purpose of the new enactment are also considerations of great weight.”

While courts in the construction of acts appearing in the Revised Statutes are precluded from referring to antecedent legislation upon the same subject to “ create ” an ambiguity, they are not so precluded to “ solve ” an existing one. Mr. Justice Brown, in *Hamilton*v. *Rathbone*(175 U. S., 419), says: “ The general rule is perfectly well settled that where a statute is of doubtful meaning and susceptible on its face to two constructions, the court may look into prior and contemporaneous acts, the reasons which induced the act in question, the mischiefs intended to be remedied, the extraneous circumstances, and the purpose intended to be accomplished by it, to determine its proper construction.” To invoke a different rule the act when standing alone must be *fairly*susceptible of but *one*construction. *(Hamilton*v. Rathbone, *supra).*To the statutes in question the latter rule can have no application.

For forty years the Treasury Department officials have construed the statutes here in question in accordance with *21the conclusions reached by the court in the case at bar. Such long-continued construction and practice by the Departments charged with the administration of a statute will not be set aside by the court except • for cogent reasons. Courts are slow to intervene and overrule the same, unless it appears that the construction so given is clearly wrong. *(United States*v. Johnston, 124 U. S., 236; *United States*v. *Finnell,*185 U. S., 236.)

We are therefore of the opinion that the petition should be dismissed.

Petition is dismissed.