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  • Mr. Justin Miller, with whom Solicitor General Biggs and Mr. Erwin N. Griswold were on the brief, for petitioner. The Government advanced as ground for rehearing that on March 5, 1934, in Helvering v. Newport Co., 291 U.S. 485, the Court had decided in the Government's favor the precise question presented by the cases sought to be reargued, viz., that tax assessment waivers, executed after the statutory period for assessment had expired and while the Revenue Act of 1926 was in effect, were valid. And it contended that, apart from the provisions of § 1005 of that Act, there could be no question of the power of this Court to set aside or modify its judgments upon application made at the Term in which they were entered. This is an inherent power vested in the Court by the Constitution. Congress can not eliminate such essential judicial characteristics of federal courts, even of those created by its own Acts; and its Acts should not be construed as so intending. See United States v. Hudson, 7 Cranch 31, 34; Gordon v. United States, 117 U.S. 697, 701-702, 704; In re Debs, 158 U.S. 564, 594; Kansas v. Colorado, 206 U.S. 46, 82; United States v. Evans, 213 U.S. 297; United States v. Klein, 13 Wall. 128, 146-147; Ross v. United States, 8 App.D.C. 32, 37, 40; Stephens v. Cherokee Nation, 174 U.S. 445, 478; Muskrat v. United States, 219 U.S. 346, 362; Keller v. Potomac Electric Power Co., 261 U.S. 428, 444; Kilbourn v. Thompson, 103 U.S. 168, 190-191. But, properly interpreted, neither the purpose nor the effect of § 1005 was to limit this Court in its control of its own judgments during the Term. Mr. Paul F. Myers, with whom Mr. Edmund B. Quiggle was on the brief, for respondents in Nos. 18 and 19. Mr. W.W. Montgomery, with whom Mr. Robert P. Smith was on the brief, for respondent in No. 20. Mr. Douglas Swift for respondent in No. 21.
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  • Mr. Justin Miller, with whom Solicitor General Biggs and Mr. Erwin N. Griswold were on the brief, for petitioner. The Government advanced as ground for rehearing that on March 5, 1934, in Helvering v. Newport Co., 291 U.S. 485, the Court had decided in the Government's favor the precise question presented by the cases sought to be reargued, viz., that tax assessment waivers, executed after the statutory period for assessment had expired and while the Revenue Act of 1926 was in effect, were valid. And it contended that, apart from the provisions of § 1005 of that Act, there could be no question of the power of this Court to set aside or modify its judgments upon application made at the Term in which they were entered. This is an inherent power vested in the Court by the Constitution. Congress can not eliminate such essential judicial characteristics of federal courts, even of those created by its own Acts; and its Acts should not be construed as so intending. See United States v. Hudson, 7 Cranch 31, 34; Gordon v. United States, 117 U.S. 697, 701-702, 704; In re Debs, 158 U.S. 564, 594; Kansas v. Colorado, 206 U.S. 46, 82; United States v. Evans, 213 U.S. 297; United States v. Klein, 13 Wall. 128, 146-147; Ross v. United States, 8 App.D.C. 32, 37, 40; Stephens v. Cherokee Nation, 174 U.S. 445, 478; Muskrat v. United States, 219 U.S. 346, 362; Keller v. Potomac Electric Power Co., 261 U.S. 428, 444; Kilbourn v. Thompson, 103 U.S. 168, 190-191. But, properly interpreted, neither the purpose nor the effect of § 1005 was to limit this Court in its control of its own judgments during the Term. Mr. Paul F. Myers, with whom Mr. Edmund B. Quiggle was on the brief, for respondents in Nos. 18 and 19. Mr. W.W. Montgomery, with whom Mr. Robert P. Smith was on the brief, for respondent in No. 20. Mr. Douglas Swift for respondent in No. 21.
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Smart Summary

HELVERING, COMMISSIONER OF INTERNAL REVENUE, v. NORTHERN COAL CO. Together with No. 19 (October Term, 1933), Hel

Under § 1005(a) of the Revenue Act of 1926, a petition for the rehearing of a case in which this Court has affirmed a judgment sustaining a decision of the Board of Tax Appeals can not be entertained if filed more than 30 days after the issuance of this Court's mandate. Petition for rehearing denied.

PER CURIAM.

In these cases, the judgments were severally affirmed on October 23, 1933, by an equally divided Court. 290 U.S. 591. Petitions for rehearing in Nos. 18, 19, and 21 were denied on November 20, 1933. The mandates of the Court were severally issued in the four cases on November 29, 1933. The present petitions for rehearing were filed on May 21, 1934.

Section 1005(a)(4) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 110, 111, U.S.C. Tit. 26, § 640, with respect to decisions of the Board of Tax Appeals, provides:

"Sec. 1005(a). The decision of the Board shall become final — . . .

(4) Upon the expiration of 30 days from the date of issuance of the mandate of the Supreme Court, if such Court directs that the decision of the Board be affirmed or the petition for review dismissed."

In view of the authoritative and explicit requirement of the statute and of its application to these cases, the petitions for rehearing are severally denied.

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HELVERING v. NORTHERN COAL CO
(Oct 22, 1934)