ROETTCHER v. HAMILTON, Collector of Internal Revenue

ROETTCHER v. HAMILTON, Collector of Internal Revenue. (Circuit Court of Appeals, Sixth Circuit. June 28, 1922.) No. 3652. Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Suit by H. W. Roettcher against Elwood Hamilton, Collector of Internal Revenue for the District of Kentucky. From the decree rendered, complainant appeals. Reversed and remanded. Charlton B. Thompson, of Covington, Ky. (Robert C. Simmons, of Covington, Ky., on the brief), for appellant. John E. Shepard, Asst. U. S. Atty. of Covington, Ky. (Sawyer A. Smith, U. S. Atty., of Covington, Ky., on the brief), for defendant in- error. Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Since the hearing of this case by the court below, the Supreme Court has disposed of the substantial questions involved, by its opinion in Lipke v. Lederer, 258 U. S.-, 42 Sup. Ct. 549, 66 L. Ed.-, filed June 5, 1922. Upon the authority of that case it must be held that the substantial assessments made by the collector, under section 35 of title 2 of the National Prohibition Act (41 Stat. 317), were really penalties, and that a suit to enjoin distress and sale for their collection is not forbidden by R. S. § 3244 (Comp. St. § 5971), nor by the existence of any adequate remedy at law. Accordingly the decree herein will be reversed, and the record remanded for further proceedings in accordance with that opinion.