MR. JUSTICE MATTHEWS delivered the opinion of the court. After stating the facts in the above language, he continued:
It is alleged as error, in the first place, that the court should have treated the appeal rejected for informality as the basis for determining the time within which the suit ought to have been brought. But that appeal was not so treated by the commissioner, who rejected it for mere informality and entertained the subsequent appeal, made in proper form, as rightly prosecuted. The latter, in our opinion, was the appeal contemplated by the statute.
It is further insisted, however, that treating the appeal of January 8th, 1868, as the only one to be considered, the action was barred by lapse of time.
Section 19 of the act of July 13th, 1866, ch. 184, 14 Stat. 152, is:
"That no suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected until appeal shall have been duly made to the commissioner of internal revenue according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision, or within six months from the time this act takes effect: Provided, That if said decision shall be delayed more than six months from the date of such appeal, then said suit may be brought at any time within twelve months from the date of such appeal."
§ 3227 Rev. Stat., which was first adopted in the act of June 6th, 1872, provides that:
"No suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, shall be maintained in any court unless the same is brought within two years next after the cause of action
It is argued now, by the Solicitor-General, that the action was barred by the act of 1866, because not brought within twelve months from the date of the appeal. The terms of that act require, as conditions precedent to the right to bring any such suit, first, an appeal to the commissioner of internal revenue; second, a decision thereon by him; and not then unless it shall be brought within six months after such decision, or within that time after the act takes effect. The proviso is, that if the decision is delayed more than six months from the date of the appeal, the suit may be brought at any time within twelve months from the date of such appeal, that is, although no decision may have, in the meantime, been made. Such was the construction of similar provisions in § 2931 Rev. Stat., adopted in Arnson v. Murphy, 109 U.S. 238. The plaintiff is not bound to sue until a decision on the appeal has actually been made, but must sue within six months thereafter. If he does not choose to wait for a decision, he may nevertheless bring suit before it is made if it is delayed more than six months from the date of the appeal, provided, however, in that case, he sues within twelve months from the date of the appeal.
In the present case, the plaintiff chose to wait, as he had the right to do, until a decision upon his appeal had been made. It had not been made on June 6th, 1872, when the act of that date took effect, being § 3227 Rev. Stat. The claim, therefore, was pending before the commissioner at that time. It continued to be so until January 22d, 1879, when it was decided. By the terms of § 3227, he had one year after that decision within which to bring his suit, which he did.
The judgment of the Circuit Court was, therefore, right, and is accordingly