fear of criminal prosecution, and in order to obtain clearance papers which could not have been procured without the delivery to the collector of the port of New York, of outward foreign manifests of cargo stamped as aforesaid, and without which clearance papers the vessels hereinafter named would have been prevented from sailing, or would have become liable for the penalty imposed by section 4197 of the Revised Statutes of the United States, said James E. Ward & Company, for and on behalf of your petitioner and as such general agents as aforesaid, purchased and affixed to the said outward foreign manifests of cargo and canceled internal revenue documentary stamps of the United States of the face value of two hundred and forty dollars ($240), as appears more fully by the exhibit hereto annexed and made a part of this petition, and marked 'Exhibit A,' which contains the name of the vessel, the date of delivery to said collector of the outward foreign manifests of cargo, the alleged tax on which is sought to be recovered, and the face value of the documentary internal revenue stamp affixed thereto.'

It is alleged that the stamps were purchased from Walter H. Stiner, a dealer in internal revenue stamps, on various days subsequent to January 1, 1900, and that Stiner purchased them from the collector of internal revenue, and the proceeds thereof were duly paid over to the United States.

In this case, as in the Chesebrough case, the collector was not informed at the time of the purchase of the particular purpose for which the stamps were to be used, and no intimation was given him, written or oral, that defendant in error claimed that the law regarding such stamps was unconstitutional, and that it was making the purchase under duress. And, expressing the principle to be applied, the court said, in the Chesebrough case, "even a protest or notice will not avail if the payment be made voluntarily, with full knowledge of all the circumstances, and without any coercion by the actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the payment, over the person or property

of the party making the payment, from which the latter has no other means of immediate relief than such payment."

Applying that principle to the allegation that Chesebrough's vendee was unwilling to accept an unstamped conveyance, it was said "if that constituted duress as between Chesebrough and his building company, it was a matter with which the collector had nothing to do. On the face of the petition the purchase was purely voluntary and made under mutual mistake of law if the law were unconstitutional."

It is, however, insisted that these observations are not apposite to the case at bar. The coercion, it is contended, that Chesebrough alleged was between him and some third party. In the case at bar the coercion was exerted "between the petitioner [defendant in error] and the very authorities who demanded and compelled the payment of the tax," through section 4197 of the Revised Statutes of the United States. This section requires the master or person in charge of any vessel bound for a foreign port to deliver to the collector of the district a manifest, and upon its delivery the collector shall grant a clearance for such vessel and her cargo. It is provided:

"If any vessel bound to a foreign port departs on her voyage to such foreign port without delivering such manifest and obtaining a clearance, as hereby required, the master or other person, having the charge or command of such vessel shall be liable to a penalty of five hundred dollars for every such offense. Section 4197, Revised Statutes of the United States.

We do not think this section makes a difference in the cases. The destination of the stamps cannot affect the payment of the tax which they represent. It may be more or less of an inducement to submit to the tax, but who can determine the degree? The loss of a purchaser, as in the Chesebrough case, may be of much more concern than the payment of the penalty for violating the provisions of section 4197. Besides, whatever element of coercion there was came from the United States, and it was not as immediate in the case of the manifests as in the case of the deed. The applicable principle is expressed in

the extract from the Chesebrough case, which we have given above. It is stated in Railroad Company v. Commissioners, 98 U. S. 541, and quoted from that case in Little v. Bowers, 134 U.S. 547, at page 554, as follows: "Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back."

There was no such imminence in the duress charged by defendant in error. It purchased the stamps of a dealer at various times. No information was given to the collector of internal revenue of the particular purpose nor claim that the law was unconstitutional. There was no claim of the collector of the port from whom the clearances were asked that defendant in error was acting under the restraint of the law and yielding only to enable his ships to depart to their destinations. All determining conditions, therefore, are the same as in the Chesebrough case.

2. It is, however, contended that even though the stamps were purchased without any duress or coercion, that under the act of Congress of May 12, 1900, entitled "An act authorizing the Commissioner of Internal Revenue to redeem or make allowance for internal revenue stamps," the Commissioner must make allowance for the stamps used by the petitioner, and the Commissioner having declined to do so the defendant in error has a right of action under the Tucker Act. The provision of the act of May 12, relied on, is as follows:

"That the Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, may, upon receipt of satisfactory evidence of the facts, make allowance for or redeem such of the stamps, issued under authority of law, to denote the payment of any internal revenue tax, as may have been spoiled, destroyed or rendered useless or unfit for the purpose intended, or for which the owner may have no

use, or which through some mistake may have been improperly or unnecessarily used, or where the rates or duties represented thereby have been excessive in amount, paid in error, or in any manner wrongfully collected."

The argument is that by this provision "the question of duress or compulsion is taken entirely out of the case," because in most of the instances enumerated "it is inconceivable that there should be any protest or duress." And it is further alleged that the act of 1900 was not considered in the Chesebrough case. It certainly does not follow that, because in some instances, protest or duress cannot exist, that they cannot exist in other cases, nor that the statute intended to destroy the difference between voluntary and involuntary payment of taxes. In the Chesebrough case section 3220 of the Revised Statutes of the United States was considered. It authorized the Commissioner of Internal Revenue "to remit, refund and pay back all taxes that appear to be unjustly assessed or exclusive in amount, or in any manner wrongfully collected." The words in italics are identical with those in the act of May 12, which are relied on by defendant in error. Commenting on section 3220, the court said, in the Chesebrough case: "It is argued that the provisions of section 3220, for the repayment of judgments against the collector, rendered protest or notice unnecessary for his protection, but it was clearly demanded for the protection of the Government in conducting the extensive business of dealing in stamps, which were sold and delivered in quantities, and without it there would not be the slightest vestige of involuntary payment in transactions like that under consideration. And we find no right of recovery, expressly or by necessary implication, conferred by statute, in such circumstances."

We, therefore, think that this case is governed by the Chesebrough case, and on its authority judgment is reversed and case remanded with directions to sustain the demurrer.

MISSOURI v. ILLINOIS AND THE SANITARY DISTRICT OF CHICAGO.

No. 4, Original. Argued January 2, 3, 4, 1906.-Decided February 19, 1906.

Missouri filed its bill in this court to enjoin Illinois and the Sanitary District of Chicago from discharging sewage through an artificial channel connecting Lake Michigan with the Desplaines River, a tributary of the Illinois, the latter of which empties into the Mississippi River above St. Louis, claiming that such sewage so polluted the water of the Mississippi as to render it unfit to drink and productive of typhoid fever and other diseases. Illinois denied the jurisdiction of this court, and the allegations of the bill, and alleged that if the conditions complained of at St. Louis existed they resulted from discharge of sewage into the Mississippi by cities of Missouri and from other causes for which Illinois was not responsible. A demurrer was overruled, with leave to answer, 180 U. S. 208; after answer and taking of proof including much expert testimony as to effect of sewage on water and health, held, that: This court has jurisdiction and authority to deal with a question of this nature between two States, which, if it arose between two independent sovereignties, might lead to war.

In such a case, while this court cannot take the place of a legislature it must determine whether there is any principle of law, and if any what, on which the plaintiff State can recover.

Every matter which would be cognizable in equity if between private citizens in the same jurisdiction would not warrant this court in interfering if such matter arose between States; this court should only intervene to enjoin the action of one State at the instance of another when the case is of serious magnitude, clearly and fully proved; and in such a case only such principles should be applied as this court is prepared deliberately to maintain.

While a State may have relief in this court against another State to prevent it from discharging sewage through an artificial channel into, and thereby polluting the waters of, a river flowing through both States and on which the complainant State relies for water supply, if the alleged facts as to such pollution are not fully proved, and it also appears that such pollution might result from the discharge of sewage by cities of the complainant State into the same river the bill should be dismissed,--but in this case without prejudice.

The reasons on which prescription for a public nuisance is denied or granted to individuals against the sovereign power to which he is subject have no application to an independent state; but it would be contradicting a fundamental principle of human nature not to allow effect to the lapse of time. The fixing of a definite time, however, is usually for the legislature and not for the courts.