ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE GRAY delivered the opinion of the court.
Trial by jury in the courts of the United States is a trial presided over by a judge, with authority, not only to rule upon objections to evidence, and to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon questions of fact, provided only he submits those questions to their determination. Vicksburg & Meridian Railroad v. Putnam, 118 U.S. 545; St. Louis &c. Railway v. Vickers, 122 U.S. 360. The judge who presided at the trial of this action did not exceed his rightful power in this respect.
The action was brought by the United States against a railroad corporation to recover $40,844.19, for unpaid taxes on undivided profits from June 30, 1864, to November 30, 1867, under the internal revenue act of June 30, 1864, c. 173, § 122, as amended by the act of July 13, 1866, c. 184. 13 Stat. 284; 14 Stat. 138. The trial proceeded upon the rule established by previous decisions of this court, that an assessment is not required by the act, nor, if made, conclusive upon either party, and that in an action to recover the tax the controlling question is not what has been assessed, but what is by law due. Savings Bank v. United States, 19 Wall. 227; Clinkenbeard v. United States, 21 Wall. 65.
The president of the corporation testified that in 1868 the United States made a demand upon the company for some $350,000 alleged to be due for such taxes for the same period; that the company resisted the demand, and through him as its counsel contended that it had already paid more than was due, and was entitled to a considerable credit for items really belonging to construction, though charged to income in the form in which its accounts were made up; that the company opened all its books to the officers of the government, and after full investigation by them, and arguments in behalf of both parties before the assessor of internal revenue for the district, occupying several weeks, the officers of the company and the assessor agreed upon a settlement and adjustment of the demand for
the sum of $39,797.61, which the company thereupon paid, and for which it took the following receipt:
"United States Internal Revenue, Collector's Office, "District of Pennsylvania, July 28, 1868.
"Received of Philadelphia & Reading R. R. Co. forty-one thousand eight hundred & seven 61/100 dollars for excise tax on --
"Gross receipts $2,010 00
"Profits over dividends 39,797 61
"May, 1868, being amount assessed on June list for July 1st, '64, ...