BAILEY, Collector of Internal Revenue, et al. v. GEORGE et al.

The decree entered herein by the District Court and appealed from, directly, to this court, under section 238 of the Justicial Code (Comp. St. § 1215), recited that the complainants operated a manufacturing plant for the production of cotton goods in Gaston county, North Carolina; that the defendant was a federal collector of internal revenue; that on the ground that complainants had employed children in their factory within the limits of ages prescribed in section 1200, the act of Congress, known as the Child Labor Tax Law, approved February 24, 1919 (40 Stat. 1057, 1138 [Comp. St. Ann. Supp. 1919, § 6336 7/8 a]), they were under its terms assessed the sum of $2,098.06; that they filed a claim for abatement of the same, which was denied, that the collector was about to make the exaction by distraining complainants' property, levying on it and selling it, that the act of Congress purporting to authorize the assessment was invalid under the Constitution of the United States, and on these grounds permanently enjoined the collector from proceeding to collect the assessment.

An examination of the bill shows no other ground for equitable relief than as stated in the order. The bill does aver 'that these your petitioners have exhausted all legal remedies and it is necessary for them to be given equitable relief in the premises'; but there are no specific facts set forth sustaining this mere legal conclusion. Section 3224, R. S. (Comp. St. § 5947), provides that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' The averment that a taxing statute is unconstitutional does not take this case out of the section. There must be some extraordinary and exceptional circumstance not here averred or shown to make the provisions of the section inapplicable. Dodge v. Brady, 240 U. S. 122, 126, 36 Sup. Ct. 277, 60 L. Ed. 560. In spite of their averment, the complainants did not exhaust all their legal remedies. They might have paid the amount assessed under protest and then brought suit against the collector to recover the amount paid with interest. No fact is alleged which would prevent them from availing themselves of this form of remedy.

The decree of the District Court is reversed and the cause remanded with directions to dismiss the bill.