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Opinion of the Court.

268 U.S.

The Treasury Department, by Regulation 43-1, Art. 35, has held that the money collected as admissions tax is not the property of the Government until paid to the Government, and evidently Congress had that in mind when it provided for payment by those who procured admissions, and collection and accounting by the proprietor, with drastic criminal penalties for failure of either to comply with the Act (§ 1308–b).

The money which the defendant is charged with having embezzled, was not money of the United States, but was simply money due the United States. Int. Rev. Bulletin, Vol. I, No. 25, June 19, 1922, p. 18.

MR. JUSTICE HOLMES delivered the opinion of the Court.

The respondent, Johnston, was convicted on an indictment charging in separate counts a failure to pay over the tax upon admission fees received at certain boxing matches and a failure to make return to the collector of internal revenue of the money so received, contrary to the Act of February 24, 1919, c. 18, §§ 800, 802, 1308(b); 40 Stat. 1057, 1120, 1143. He also was convicted under § 47 of the Criminal Code of embezzling the amounts collected as taxes on the same occasions. Act of March 4, 1909, c. 321, § 47; 35 Stat. 1097. The judgment was reversed and the District Court was directed to dismiss the indictment by the Circuit Court of Appeals. 290 Fed. 120. A writ of certiorari was granted by this Court as the decision was said to be of grave importance to the administration of the revenue laws. 263 U. S. 692.

So far as the charge of embezzlement goes we think that the Court below and the intimation of the Treasury Department that it followed were clearly right. However it may have been under other statutes (United States v. Thomas, 15 Wall. 337) it seems to us that under this law the person required to pay over the tax is a

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debtor and not a bailee. The money paid for the tax is not identified at the outset but is paid with the price of the ticket that belongs to the owner of the show. We see no ground for requiring the ticket office of a theatre to create a separate fund by laying aside the amount of the tax on each ticket and to keep it apart, either in a strong box or as a separate deposit in a bank. Reports are required only once a month, §§ 802, 502, which does not look as if the Government were dealing with these people otherwise than with others answerable for a tax. Further argument seems unnecessary upon this point.

On the other counts we are of opinion that the Court below was wrong. We do not grant a certiorari to review evidence and discuss specific facts. But the Court seems to have regarded the formal relations of Johnston to the Central Manhattan Boxing Club, Inc., made necessary by the laws of New York, as conclusive upon his relations to the United States. The laws of New York permitted a license only to a corporation and so Johnston may have assumed the technical position of agent and manager for the Club. But if as a matter of fact all this was machinery to enable Johnston to give exhibitions, collect the entrance fees and make himself liable for the tax, it properly might be alleged that he collected the fees and if he wilfully failed to pay that he refused and failed to pay the tax. As the jury found Johnston guilty, although with an earnest recommendation of mercy, we are of opinion that the sentence and judgment of the District Court, which was much less than it might have been under § 1308(b), must be affirmed.

Judgment of the Circuit Court of Appeals reversed.
Judgment of the District Court affirmed.

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No. 234. Argued April 24, 1925.-Decided May 11, 1925. 1. A proper remedy for a State which claims that acts of a federal official are without authority and derogate from its quasisovereign authority, is to by bill in equity, in the federal court, to restrain him as an individual, without joining his superior officers or the United States. P. 230.

2. A decree of the District Court dismissing a bill brought by a State complaining of an infringement of its right in the highways and of other reserved powers, held to involve construction of the Constitution and to be appealable directly to this Court. Id. 3. The Act of January 26, 1915, creating the Rocky Mountain National Park did not authorize federal regulation of automobile traffic inconsistent with the right of the State of Colorado over traffic on her roads traversing the park area. Id.

4. It will not be assumed, without proof and in face of the State's bill to the contrary, that this right of the State has been ceded to the United States. P. 231.


APPEAL from a decree of the District Court dismissing a bill by which the State of Colorado sought to enjoin the superintendent of a national park from carrying out certain park regulations, particularly with regard to automobile traffic, alleged to be unauthorized by Congress and in derogation of the rights and powers of the State.

Mr. William L. Boatright, Attorney General of the State of Colorado, and Mr. Paul W. Lee, with whom Mr. Geo. H. Shaw was on the brief, for appellant.

Mr. H. L. Underwood, Special Assistant to the Attorney General, with whom the Solicitor General and As


Opinion of the Court.

sistant Attorney General I. K. Wells were on the brief, for the appellee.

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a bill brought in the District Court by the State of Colorado to enjoin the superintendent of the Rocky Mountain National Park from enforcing certain regulations for the government of the park, which are alleged to be beyond the authority conferred by Acts of Congress and to interfere with the sovereign rights of the State. These regulations forbid any person to reside permanently, engage in any business, or erect buildings in the park without permission in writing from the Director of the National Parks Service, provide for the removal of disorderly persons and forbid their return without permission from the Director, and impose a fine or imprisonment or both for violating these regulations, the defendant, it seems, being the sole judge. The special subject of complaint is a further regulation subject to similar penalties that "The park is open to automobiles operated for pleasure, but not to those carrying passengers who are paying, either directly or indirectly, for the use of machines. (Excepting, however, automobiles used by transportation lines operating under Government franchises.)" It is alleged that the defendant and his superior officers assert full authority over all highways in the park to the exclusion of the State and refuse permission to anyone operating automobiles for hire except one corporation which has received a permit. It is alleged that he asserts the right to exact a license fee from privately owned vehicles, although it does not appear that this has been done in this park. There are many thousands of acres in the park owned by private persons, and there are houses and hotels that were built before the park was laid out. It is feared that the same jurisdic

Opinion of the Court.

268 U.S.

tion will be exercised over the forest reservations in the State and it is alleged that all the main highways connecting the eastern and western parts of the State traverse either the reservation or the park, which last contains about 400 square miles. The roads were built by counties and the State under the grant of right in Rev. Sts. 2477 before the park was laid out. It is alleged that the State never has ceded its power. The bill was dismissed for want of equity by the District Court.

The object of the bill is to restrain an individual from doing acts that it is alleged that he has no authority to do and that derogate from the quasi-sovereign authority of the State. There is no question that a bill in equity is a proper remedy and that it may be pursued against the defendant without joining either his superior officers or the United States. Missouri v. Holland, 252 U. S. 416, 431. Philadelphia Co. v. Stimson, 223 U. S. 605, 619, 620. As the bill was dismissed upon the merits it is not necessary to say more upon this preliminary question. Also the direct appeal to this Court is proper as the State complains of an infringement of its right in the highways and of its other reserved powers and the case as made involves the construction of the Constitution of the United States.

The park was created by the Act of January 26, 1915, c. 19; 38 Stat. 798. By § 2 the Act is not to "affect any valid existing claim, location, or entry under the land laws of the United States, whether for homestead, mineral, right of way, or any other purpose whatsoever," and by § 3 "no lands located within the park boundaries now held in private, municipal, or State ownership shall be affected by or subject to the provisions of the Act." By § 4 the park is put under the executive control of the Secretary of the Interior and it is made his duty to make such reasonable regulations, not inconsistent with the laws of the United States, as he deems proper for the management of the same, such "regulations being pri

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