This suit was instituted by the city of Salt Lake to recover of Hollister the sum of $12,057.75, illegally exacted by him as collector of internal revenue for the district of Utah from the city for a special tax upon spirits alleged to have been distilled by said city, and not deposited in the bonded warehouse of the United States by plaintiff as required by law. Plaintiff alleges that, under threat of selling sufficient property of the city to pay said tax, it paid the sum demanded under protest, appealed to the commissioner of internal revenue, who failed and neglected to make any decision or to refund the money, and, after six months' waiting, this suit was brought.
To the petition the defendant made the following answer: 'Now comes the defendant in the above-entitled cause, O. J. Hollister, and for answer to the plaintiff's complaint admits that the plaintiff is a public municipal corporation, created and organized under and by virtue of the laws of the territory of Utah, and that it has continued to be such a corporation since its organization in February, 1850; and that the defendant was at the time mentioned, and as alleged in plaintiff's complaint, and still is, the acting United States collector of internal revenue for the district of Utah. Defendant admits that in June, A. D. 1876, the United States commissioner of internal revenue set down to and assessed against the plaintiff a gallon tax of ten thousand seven hundred and sixty dollars upon spirits distilled by said plaintiff at various times between the second day of March A. D. 1867, and the twenty-sixth day of August, A. D. 1868, and not deposited in the bonded warehouse of the United States by the plaintiff, as required by law, but denies that said gallon tax was illegally or erroneously set down to or assessed against the plaintiff by said commissioner of internal revenue; and avers that the plaintiff, during all the time for which said assessment was made, was actually engaged in distilling, producing, and dealing in, as distiller, said spirits so assessed; and said assessment of said gallon tax was made upon distilled spirits actually produced by the plaintiff, and upon which plaintiff had not paid the gallon tax required by law; said spirits not having been deposited in the bonded warehouse of the United States by the plaintiff, as required by law, but taken from said distillery by the plaintiff, after having been produced and distilled as aforesaid, and sold by said plaintiff, and the proceeds of said sale turned into the treasury of the plaintiff. Said plaintiff, during all the time it operated said distillery, and especially from said second day of March, 1867, to said twenty-sixth day of August, 1868, was distilling and producing spirits as aforesaid, and receiving and appropriating the benefit arising therefrom. Defendant further alleges that the plaintiff, during the time mentioned in plaintiff's complaint, regularly reported and paid to the collector of internal revenue of the United States the gallon tax due upon a quantity of spirits distilled and produced by plaintiff; but that plaintiff neglected to report all of the spirits it actually produced and distilled, and for and upon which the said gallon tax was due and owing to the United States; and that the tax so assessed as aforesaid is the tax due upon the spirits produced and distilled in excess of the amount so reported by said plaintiff, and upon which no tax was ever assessed and collected up to the time of the payment mentioned in plaintiff's complaint, and hereinafter stated. Defendant, answering, admits that the list containing the said gallon tax assessed by the commissioner of internal revenue of the United States was placed in the hands of this defendant as collector of internal revenue. And defendant alleges that said plaintiff having engaged in the business of distilling and producing spirits as aforesaid, and said tax having been assessed by the commissioner of internal revenue as aforesaid, and placed in the hands of the defendant, as collector of internal revenue, for collection, it became and was his duty as such collector to collect said tax. Defendant denies that he knew that said gallon tax, so assessed as aforesaid, was erroneous and illegal, and avers that said tax was legal and correct, and was assessed and collected because plaintiff was liable to said tax.