New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-08-29
THE BROKERS, TAX.
United States Circuit Ceurt-Araumentt In
the Case before Justicc Nelson.

United States Circuit Ceurt-Argumenti In
the Case before Justice Nelson.
Robert L. Cutting and other. sgt. sheridan Shook and syl
vester p Gilbert, mpeaded with United States William
Seymour jr, agt the same.
These cases, of which some notice has been
already given, were argued before Judge Nelson at s
residence in COoperstOwn Friday and Saturday the
25th and Goth nsts. This action was brought, under
the recent decision Of Judge Nelson that brokers were
not liable to q tax on sales made on their own account
10 restrain and enOin the defendants Collector and
and their subordnates from assessing and col
lecting such tax.
case on the part Of tho compliments by reading the
bills filed by compliments The bills show that the
compainants embracing the Messrs. Cntting FISK
Hatch, Clark, Dodge g. Co., H. T. Morgan g. Co., Yer
milye & Co. and Clews & Co., being, brokers and
bankers duly licensed, sold in the months OF April
May and June. 1855 stocks on their own account as
well as on c0mmssioD-that they are willing to pay 70
the Revenue officers cks sold on commission
that the Assessor Gilbert insists on their making
returns Of stocks Of their own sold, as wei az
OF those sold commission. ana tDat
he refuses to allow them to be separated that unless
they make such returns the assessor threatens TO make
the assessment himself with the addition OF % per cen.
and that the Collector. Shook intends to collect the
amount assessed that by JOINT action oil MI d. o
Lewis, then Commissioner OF Internal Revenue TWO
cases. submitting the questions whether bankers anu
brokers were liable to pay, under the Revenue Law.
duties stocks Of their own sold by them on their own
account and for COMMISSIONS, were laid before
the Hon Samuel NeIsOD Obteu Stdtts "u"bO'
and that decided that the bankers and brokers were
not so liable . >, :,
They therefore claim this to be an adjudication In
their favor and ask for an injunction.
| Judge Allen also read an affidavit OF MT Hatch,
show ing that the amount Of duties to be collected OF
brokers in the City Of NewYork alone up to January
ls6J would amount TO 81 100000
| Mr. Samuel q. Courtney, representing the defend,
ants then read the Of tho defendants Shook and
Gilbert . lin -,
tate they intend TO assess and collect the duties the
Tbey state that no Judgment has been entered
upon the submitted cases that there is no Judgment
upon the questions submitted, and that whenever the
compainants In the matter of submitted cases.
the Government intends to appeal.
They state that the complanants have various legal
remedies and that they instructed by the secretary
Of the Treasury and the Commissioner q Internal
Revenue proceed 10 assess and collect SAID dutes
After the reading Of these papers,
Mr. John T. Burrel Of New York opened the argument
on behalf OF the complanants. He maintained that
under the Internal ReyeEge act If these compainants
paid these duties there was No renedy TO nave then
refunded or repaid If the court should finally hold that
bey were not liable under tie act That Judge Nelson
had decided in the Of tie United states agt FISK
& Hatch that the brokers were not liable to pay duties
on stocks # theirs sold for themselves and not for
commission and that in the face of that decision, the
4 Attendants were going TO assess and collect ana
that to prevent multiplicity Of suits the injunction
| should be granted .,.Ao-o
tely by Mr.. Burll. who cited numerous authorities
> sustaining his position.
Samutl a.. Courtney esq, Ol new 1OIk
behalf Of the Government, and submitted these pIopo'
sItions: II. ..
nncton II having no equitable power IN these cases.
The powers of the Court must depend on an act OF
CONGRESS- The only act under hch il caA be claimed
that il has jurisdiction il Section OF the act OF areh
Is extending It's jurisdiction to revenue cases or
which other provisions not made by law Inc l9th
section OF the Iuteyna Revenue act has provided for
the hearing and Determining OF appeals assht ..e pro o.
that act further provisions are made FOR sueh cases
that by these provisions the present ease Is eseuaea
from tie section above quoted. and redress must De oD
tanned according to those provisions and in no other
way there being concurrent Jurisdiction thit even
snnnosin0 the Court 10 have appellate Jurisdictions
|. there was here no appel. Second; Supposing the
Court 10 have Jurisdiction over the subject matter OF
taxation il had jurisdiction of the remedy by IN
junction in this case there being 10 statutory authority
10 issue that writ IN eases Ike the present iuter at
was beyond the power OF the legislative branch to
J. grant TO the judiciary the power to restrain or
. enion the executive officers IN the discharge o ther
duties the executive being coordinate branch OF the
Government and within its own sphere supreme that
This suit must therefore fail the relief asked for being
j against the defendants as collector and assessor and
against all other collectors aid assessors. ihru
u proper case for the exercise OF the writ ID not
nreseuted The Judgment which the complain
! ants SET up is not res JHdieafd as against ths
o defendants, the complainants not having entered
il, and the defendants being ready 10 appear
ON il so soon entered. That there was therefore
no violation of right To authorize An Injunction there
should be violation OF night for which there exists no
other remedy that the eompainants .aa otncf rene
dies under the act, by appeal 10 the Comms
sioners by "a common law action. or by any OF the
other more appropriate equity wrts; that there was
. no claim in the bill that there had been Gry action,
further than requiring the claimants to maze their re-
VI tnrns, there was nothing therefore, which the
Court could adjudge the nature and extent OF the
u alleged injury. He also discussed the case on TIE
h NJ. John II. Reynolds followed. going over very
thoroughly the same GROUND and. IN addition by per
- mission OF the Court discussing the questions raised
on the former suit VIZ; whether " oil the la
ternn Revenue act covered the sales OF brokers made
7 On their account or not.
c Judge Allen closed the for the compliments ar
guing that there being in the former case decree o.
IL tie Court, RI persons and especially officers o th'
Government bound TO respect IT, until 1t was re
10 yersed OF the appeal was dismissed.
IS lie urged thai if the officers enforced the collection
r Of this tax the companans had no remedy whatove
u except this Of injunction.
&c Afier long and thorough argument the Court TOOL
e the papers Of the parties ana reserved s decision