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gaged, but has also, especially in the case of steamers, prescribed rules for their equipment and furniture, and for the transportation of passengers, and has subjected them to inspection by United States officers. and provided for the licensing of the pilots and engineers. They are, thus, vessels of the United States, and are all domestic vessels, belonging to citizens of the United States.

The classification, therefore, of vessels as domestic and foreign, or quasi-foreign, according to the residence of the owner within or without the State at a port of which they have been repaired or supplied, seems arbitrary and unsound. Especially when this classification is resorted to in but a single case, and for the purpose of excluding a lien allowed by the maritime law, and which has the most solid foundation in natural justice. Ben. Adm. § 273; The St. Iago de Cuba, 9 Wheat. 409.

Our attention has thus far been confined to the broad doctrine that no lien is implied by the maritime law in favor of domestic materialmen, although the supplies have been ordered by the master with the owner's consent, or by the owner himself,—and when the personal liability of the owner is admitted. It may be said, however, that the master's authority ceases on his arrival at the port of his owner's residence, and that unless expressly empowered by the latter, his contracts ought not to bind the vessel.

But this restriction upon the master's authority could, at most, be imposed only when the vessel is in the place where her owner resides— her home port. "An epithet which," says Mr. Chief Justice MARSHALL, "has no necessary reference to State or other limits." The St. Iago de Cuba, ubi sup. On principle, the determination of the master's agency should depend on the readiness with which the owner may be consulted, the urgency of the necessity for repairs or supplies, the authority, real or apparent, which the owner may have held him out as possessing, and the means which third persons may have possessed of ascertaining the extent of the powers confided to him.

In this view, the mechanic, who at the master's order, repairs, in Jersey City, a vessel belonging to a wealthy and well known merchant or corporation of New York, should not be entitled to recourse against the vessel, or her owners, any more than he who makes like repairs in Brooklyn; while conversely, the New York mechanic should, under certain circumstances, have both remedies, notwithstanding that the owner may reside in a remote part of the same State.

The taking of goods on freight, the shipping of a crew, the procuring supplies for them and the vessel, as well as the making of ordinary repairs, is within the usual scope of the master's duty and authority. See Curt. on Mer. Seam. 127. On general principles of

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agency, the owner, and a fortiori the ship, should be bound by his contracts, unless notice, actual or constructive, be clearly brought home to the person with whom he deals, that he is exceeding the limits of his authority. And on the principles of the maritime law, the liability of the vessel, at least, for the contracts of the master, would seem unquestionable. In article 216 of the Code de Commerce, which, as before stated, was taken from the Marine Ordonnance, the liability of every owner for the obligations of the master, up to the value of the vessel and freight, is established. Under this article it is held that the ship is liable, even though the proprietor or general owner is not armateur or owner for the voyage. Rogron, Code de Comm., Art. 216.

And so is our own law. For the vessel is liable in rem to seamen, freighters, &c., on the contracts of the master, although she may have been demised or chartered to one who appoints the master, and whose agent he exlusively is.

Article 232 of the Code de Commerce provides for the very case we are considering. This article, which is taken from Article XVII. Liv. 11, tit. 1 of the Ordonnance, enacts that the captain shall not in the place of residence (dans le lieu de la demeure) of the owners or their agent, without special authorization, cause repairs to be made, buy sails, cordage, &c., or take up money for the purpose.

Under this article it is held that, if the captain should violate it, the proprietors would nevertheless be bound under article 216, to the extent of their interest in the vessel, i. e., the vessel would be liable, except for money taken up on bottomry.

The remedy of the owner is against the master for violation of the article; but even this, says VALIN, should be subject to his right to be allowed for absolutely necessary supplies, obtained for a reasonable price, however blamable he may be for having acted without authority. 1 Valin's Com. p. 440. Chapter 54 of the Consolato del Mare, and the observations of VALIN and EMERIGON upon it (1 Valin's Com. p. 369; Emerigon Contr. a la Grosse, Hall's Translation, 227), illustrate the favor with which the maritime law regards debts due for work and materials furnished to a vessel.

Both of these great jurisconsults agree that workmen employed by a master carpenter or caulker, who has contracted with the owner, shall have a lien on the vessel for the sums due them, unless they have received actual notice of the arrangement between the owner and contractor.

On this, which is an admitted exception to the ordinary principle of domino non mandante, EMERIGON observes:

"The carpenters, caulkers, and other workmen employed in build

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ing, together with the creditors for the timber, cordage, and other articles furnished, ought to enjoy the privilege allowed to them, unless they have been warned in due time that if they do not secure the payment of their claims against the contractor, they shall have no lien on the ship. And I do not believe that a simple registry of the contracts would be considered as a notification, within the meaning of the Consolato, which requires that notice should be given to the workmen and other material-men, in order that they may not be deceived." Emerigon Contr. a la Grosse, 229.

If the ship is thus liable to workmen employed by a contractor, and not by the owner, or master, unless warned by the latter, a fortiori should she be liable to workmen employed by the master, unless affected by a similar notice. See ch. XXXII. and XXXIII. Consulat de la Mer, par Boucher, tom. 11, 38-9.

It is thus evident that by the principles and analogies of the maritime law, and the "good customs of the sea ("les bonnes coutumes de la mer," as they are called in the Consolato), and on grounds of equity and natural justice, the lien of the material-man who has constructed, repaired, or supplied a vessel, ought to be recognized and enforced as a maritime lien by courts of admiralty. And this whether the work has been done in a port of the State in which the owner resides or elsewhere; and whether upon the employment of the master or of the owner, or of his agent-excepting in those cases where the lien has been clearly waived, or "notice has been given to the workmen and other material-men, in order that they may not be deceived."

The lien laws of the States, hitherto deemed necessary to obviate the consequences of the decision in the case of The General Smith, would seldom or never be resorted to, and the anomalous consequences of the adjudications with regard to them would disappear if it were established "that it is the ship, and not the ship of a particular owner, nor the ship of a particular flag, or national character; not a domestic ship, nor a foreign ship; not a ship in a port of a State to which she does not belong, or in which her owner does not reside, but a ship-every ship-that is bound for the bill of lading, the charter party, the wages of the seamen, repairs, supplies, materials, and maritime loans." 1 Ben. 141.

H.

Pullan v. Kinsinger.

PULLAN v. KINSINGER.

Circuit Court, Sixth Circuit; Southern District of Ohio, 1870.

COLLECTION OF TAXES.-INJUNCTION.

Section 19 of the Internal Revenue Act of July 13, 1866, 14 Stat. at L. 152, as amended March 2, 1867, Id. 475, — which provides that no suit to restrain the assessment or collection of any tax authorized, shall be maintained in any court,-applies to all cases where the officer has power to inquire and determine whether the thing assessed by him is liable to taxation, however erroneous his decision of that question may be.

The statute is not unconstitutional; either as depriving the party of his property without due process of law, or as refusing trial by jury.

Bill in equity for an injunction.

This action was commenced by Richard B. Pullan and others against Christian Kinsinger and others, to obtain an injunction restraining the defendants from proceeding with the collection of a tax, which, as internal revenue officers of the United States, they claimed to collect from the defendants, as distillers. The tax in question was claimed under section 20 of the act of July 20, 1868, 15 Stat. at L. 133.

The action was commenced in the superior court of Cincinnati, by which a restraining order was granted. The defendants then procured the removal of the canse to this court, and now demurred to the bill.

Warner M. Bateman, district-attorney, and Mr. Stanberry, in support of the demurrer.

Pullan . Kinsinger.

H. L. Burnett, and Stanley Matthews, in opposition.

EMMONS, J.-The complainants, as they were required to do by section 6 of the act of July 20, 1868, 15 Stat. at L. 126, gave notice that they would ferment seventy-two hours, and aver they actually employed all that time, but that the surveyors, in estimating the capacity of the distillery for purposes of taxation, unlawfully disregarded the period fixed in the notice, and assumed one of forty-eight hours only; that this resulted in their determining upon a false capacity, and provided for the assessor a fictitious basis of taxation. They aver that taxes have been paid in full upon all their actual production and all which can be produced while the period of seventy-two hours is employed. They claim, therefore, that the assessor, by taxing a theoretical production which they never have produced, has exceeded his jurisdiction, and the assessment being void, they are entitled to an injunction, notwithstanding the statute prohibiting its issue; that the inhibition does not apply when the proceedings are void.

The government claims the period mentioned in the notice is not obligatory upon the surveyors, but that it is their duty to fix upon the most profitable period of fermentation in order to ascertain the "true producing capacity" of the distillery, as directed by the statute; that when it is thus judicially ascertained and certified to the assessor, he must, as has been done, impose a tax of eighty per cent. of what might be produced had the distillery been run to its full capacity as declared by the survey. It further claims that the statute prohibiting an injunction applies; that both the surveyors and assessor had jurisdiction of the subject, and their proceedings are not nullities, although irregular and illegal.

In the circumstances of this contest it would be bene