dissenting: This proceeding deserves and requires more than a mere notation of dissent. Approximately two thousand cases are pending on our docket which will in a large measure be controlled by this decision. By reason of the far-reaching effects of the majority view, I feel impelled to set forth my views at some length.
Petitioners are prohibited by section 604 of the Revenue Act of 1928 from bringing a suit in any court for the purpose of restraining the assessment or collection of the liabilities which respondent now seeks to enforce against them, and from which they are seeking relief in these proceedings. Cf. Carl J. G. Felland v. Wilkinson, U. S. Dist. Ct., W. Dist. Wis., Nov. 22, 1928. If petitioners had not appealed to the Board, their property, in the absence of enforced payment, would have been sold under distraint proceedings to pay the obligations of another with all the attendant hardships of such a proceeding. Their only remaining right would have been a suit to recover that which they would contend had been illegally and unconstitutionally exacted from them. Under these circumstances, the majority of the Board holds that since the right to appeal to the Board is found only in section 280, petitioners can not in these proceedings adopt that part of the section and seek to have the remaining parts held invalid. In support of this conclusion, certain cases are relied upon. A careful reading of all the cases cited in the majority opinion discloses that they rest on certain equitable principles, including election and waiver. In every one of the cases the complaining party had the free option of proceeding *1284in another way or before another tribunal. All these equitable doctrines are bottomed upon knowledge — knowledge of facts and of rights. But what does knowledge avail if there can be no free exercise of the right to elect or to waive ? The word election connotes the “ internal free and spontaneous ” exercise of the right of selection. Standard Oil Co. of Kentucky v. Hawkins (C. C. A.), 74 Fed. 395. There can be no election where the only choice presented is what is known as “Hobson’s choice.” New v. Smith, 94 Kans. 6; 145 Pac. 880. The same is true of a waiver. In Mechem on Sales, sec. 1071, waiver is thus defined:
A waiver is a voluntary and intentional relinquishment of a known right. It implies an election by the party to dispense with something of value, or to forego some advantage which he might, at his option, have demanded or insisted upon. To constitute a waiver, therefore, the acts relied upon must have been voluntarily and intentionally done, with knowledge of the facts, and the party must have been in such a situation of freedom to choose that his relinquishment can fairly be said to be voluntary. What one does in a dilemma forced upon him by the default of the other cannot be counted upon as a waiver.
In Warren v. Crane, 50 Mich. 300; 15 N. W. 465 Judge Cooley said, with reference to a choice which had been forced upon a defendant:
Waiver is a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded or insisted upon. But that action is in no sense voluntary which a party cannot decline to take except at the peril of liberty or property, as was the case here.
The above excerpt has often been cited with approval. Since the Board is the only tribunal to which petitioners could have appealed for relief, except after having suffered a property loss, it seems to me that it is a misuse, in fact an abuse, of words to hold that petitioners have made an internal, spontaneous, free and voluntary election or waiver. Their choice to appeal to the Board is quite similar to the choice of the prisoner in the old English case referred to in United States v. Kirby, 7 Wall. 482, who elected to incur the danger of the penalty of hanging for jail-breaking, rather than remain in a burning jail. The court refused to punish for the quaint reason, “ For he is not to be hanged because he would not stay to be burnt.” In filing these petitions before the Board petitioners have taken the only course open to them which does not first result in a loss of property.
It is to be noted in this connection that, as I will shortly point out, we are not dealing with á tax liability. Petitioners are not, in so far as these proceedings are concerned, taxpayers. The Masontown Coal Co. js the taxpayer. The liability of the transferor is partially for excess-profits taxes to which these petitioners are not made liable by the Revenue Act of 1918. The liability which the Government is seeking to enforce is not. a. liability for a tax but a liability in equity,, *1285a liability which any creditor can enforce in the proper court. See H. Conf. statement. H. lies. 356, 69th Cong. Under these circumstances, I am fully persuaded that petitioners should be permitted to raise the question of the invalidity of section 280 in these proceedings.
But admitting for the sake of argument that petitioner should be denied this right, I am convinced that it is the duty of the Board to raise the question for the reason that it goes directly to the fundamental proposition whether the Board possesses jurisdiction to determine a purely equitable issue. Counsel for petitioners has also in a very clear-cut request asked the Board to determine its own jurisdiction and briefed that question for us. So that question is before us quite apart from the fact that we should raise it. If the section is unconstitutional, the result is the same as though it had never been enacted. See Virginia Coupon Cases, 114 U. S. 269; Norton v. Shelby County, 118 U. S. 425; and Chicago, Indianapolis and Louisville Railroad Co. v. Hacket, 228 U. S. 559. Any determination rendered by the Board under section 280, if such section carries an unconstitutional vesting of functions, would be null and void. Ferris v. Higley, 20 Wall. 375; In re Christensen Estate, 17 Utah 412; 53 Pac. 1003.
At every stage of the proceeding the presumption is that the Board does not possess jurisdiction. Cf. Bors v. Preston, 111 U. S. 252. It is also the duty of the Board to decline jurisdiction if it determines that section 280 seeks to impose on it functions which pertain solely to courts provided for by the Constitution. It is also the duty of the Board to raise the question of invalidity, even though that question is not raised by the pleadings or parties. See Keller v. Potomac Electric Power Co., 261 U. S. 428, and Minnesota v. Hitchcock, 185 U. S. 373. See cases cited in Robertson v. Baldwin, 165 U. S. 275. In this view of the case, it is not necessary to determine whether section 280 is wholfy unconstitutional, and I will therefore confine myself to the question of the powers and jurisdiction of the Board to hear and determine a purely equitable issue.
I shall state at the outset that I fully appreciate the fact that the Federal Government may confer extensive powers on its executive officers, make their determinations final, and bar the courts from interference unless the determination complained of is affected by fraud or the officer is proceeding out of his jurisdiction, or, if a person is affected, he is not given an opportunity to be heard. Among the cases so holding are American School of Magnetic Healing v. McAnulty, 187 U. S. 94; Smelting Co. v. Kemp, 104 U. S. 636; and United States v. Ju Toy, 198 U. S. 253. Cf. Ng Fund Ho v. White, 259 U. S. 276. This rule applies with great force to tax matters for the all-important and vital reason that the Government can not exist without revenue and therefore should not be hampered in the prompt and expedí-*1286tious collection of its taxes. See Cheatham v. United States, 92 U. S. 85; State Railroad Tax Cases, 92 U. S. 575; Springer v. United States, 102 U. S. 586; Dodge v. Osborn, 240 U. S. 118; Bailey v. George, 259 U. S. 16; and Wickwire v. Reinicke, 275 U. S. 101.
It may be noted, and this is important, that in all the cases above cited a statute created and defined the liability. Section 280 neither creates nor defines the liability of a transferee. While the obvious purpose of section 280 is the collection of taxes, it does not in any way impose a liability for a tax upon a transferee. The liability sought to be enforced is not the creation of the taxing or any other statute. It is a liability at law or in equity. The liability is no greater with respect to the tax of the transferor than with respect to his general indebtedness. It is not a liability for the transferor’s taxes as such, but for ajl his liabilities, including taxes. If the section imposed a liability upon a transferee for the taxes of a transferor an entirely different question would be presented. The issue is not whether the Board has the power to determine a tax liability, but is whether it has the power to determine a liability existing only at law or in equity, with the consequent result that the tax obligation of one may be collected from another, against whom the tax was not assessed and from whom it can not be collected under any provision of any of the revenue acts or other Federal statutes. Thus the question is narrowed to this, May the Board be empowered by statute to hear and determine not a tax liability, but a liability at law or in equity ?
The vital fact in these proceedings is that the Board is not and, as now constituted, can not be a constitutional court and is not a court of equity. It does not possess the vital and peculiarly equitable power of affording complete relief. See Minnesota v. Northern Securities Co., 184 U. S. 199. The only party who is permitted to appeal is the complaining taxpayer and the only adverse party is the Commissioner. It can not order or even consider the advisability of making others parties to these proceedings and whose absence in an equitable proceeding might under a given state of facts cause the dismissal of the action. Cf. Shields v. Barrow, 17 How. 130. It can not issue any equitable writs necessary to do complete justice; it can not order an accounting; it can not marshal assets; it can not cancel deeds or other written instruments, the cancellation of which may be absolutely necessary to complete justice. In short, it can in no way function as a court of equity, yet it is called upon to hear and determine a purely equitable issue. Such shortcomings in the functions which the Board may exercise are real substance rather than a mere recital of the difficulties which we may encounter in the attempted administration of the statute.
*1287The facts in these proceedings raise the question of the liability of stockholders of a practically defunct corporation to respondent for its obligations on the ground that they have received assets which it is asserted should have been used to pay its liabilities, including its taxes. Whatever may be the theory upon which such liability is based, it remains that the liability is purely equitable, and can be enforced only by a court of equity and then upon equitable principles. Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371; McDonald v. Williams, 177 U. S. 397. A court of law does hot possess such jurisdiction. Lawrence v. Greener, 97 Fed. 906. Thus it appears that section 280 imposes on the Board, which is not a constitutional court, and which possesses no equity jurisdiction, the authority to hear and determine a liability which is of solely equitable cognizance and which can not be enforced by a court of law.
In these proceedings petitioners raise the question of the absence of the fourth stockholder, and also point out that respondent has determined that one petitioner is liable for the whole tax of the corporation; that the other two are each separately liable for one-half of the whole tax; is now seeking to hold each petitioner separately liable for the whole tax; and that although the proceedings are by consent heard together, the determination in each proceeding must be entirely separate. On the question of the necessity of joining other parties, respondent cites Hatch v. Dana, 101 U. S. 205; Adams v. Perrymam,, 202 Ala. 469; 80 So. 853; Kimbrough v. Davis, 104 Miss. 722 ; 61 So. 697; and Bartlett v. Drew, 57 N. Y. 587. These authorities respondent contends support the view that the liability of each petitioner is several, and therefore he insists that the Board should determine that each petitioner is liable for the whole tax. However, there is very respectable authority to the contrary. See Updike v. United States, 8 Fed. (2d) 912, and United States v. Armstrong, 26 Fed. (2d) 227. Whatever may be the answer to these questions, it is at once apparent that they raise issues which are foreign to the jurisdiction and functions of the Board, as now constituted, and which, until the powers of the Board are enlarged, I am of the opinion it is’ not equipped to determine.
It may be that the Board will find a way to determine the issues presented in these particular proceedings. The facts are few and simple and all of them are stipulated. But the fact that the Board may be capable of rendering a final determination in these proceedings by no means solves the problem presented.
Even though the Board should reach the same result as would a court of equity, the question remains whether petitioners have been deprived of their property without due process of law. Thus in Coe v. Armour Fertilizer Works, 237 U. S. 413, it is said;
*1288To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits. Rees v. Watertown, 19 Wall. 107, 123.
The statute whose validity is contested is comprised in a single paragraph of a subsection of one section. It applies to all transferees of property of taxpayers who are liable at law or in equity for the debts or liabilities of a taxpayer. This paragraph can not be separated and held valid as to certain transferees and invalid as to others. This is the decision in United States v. Ju Toy; supra. Neither does section 1213 of the Revenue Act of 1926 relieve the situation. Under that section neither the Board nor any court can rewrite the section so as to hold some transferees and release others. “ This is legislative work beyond the power and function of the court,” Hill v. Wallace, 259 U. S. 44) and of course beyond the power of the Board.
For these reasons, I will now turn to those cases in which other parties are indispensably necessary to the doing of complete justice, or where it is absolutely necessary to the accomplishment of such' justice that equitable remedies be applied.
I have taken occasion to examine some of the many cases now pending on our docket similar to the instant proceedings, where there are contracts either direct or collateral between the stockholders or between them and the corporation which may have to be litigated in order to secure an equitable determination of the rights of the parties, nay, even the liability of the transferee himself; cases arising under deeds or other conveyances which the Commissioner deems fraudulent or constructively fraudulent and in connection with which are promissory notes held by third parties whom the Commissioner deems parties to the fraud; cases in which it may be such other parties are indispensably necessary to a final and complete determination; cases where the remedy of cancellation should be invoked in order to prevent irreparable injury; cases where injunction should be issued for the same purpose; cases where an accounting or a marshaling of assets is absolutely required. In short, cases are before us running the whole gamut of equity jurisprudence. It was because courts of law could not do complete justice that courts of equity were established, and it has been the pride of these courts that they are able to grant complete relief and redress practically all wrongs. I can not conceive that any part of this jurisdiction can be conferred upon “ an independent agency in the Executive branch of the Government ” if for no other reason than that such a scheme is unworkable.
It is however contended that hearings before the Board are reviewable by the Circuit Court of Appeals or by the Court of Appeals of the District of Columbia and that in this way a complaining trans*1289feree gets the benefit afforded by the Federal courts. It is, however, contended by amici curiae that no appeal is permitted by the statute to transferees. They point out that the right to appeal is granted by section 1001 of the Kevenue Act of 1926 and is confined to the “ Commissioner or the taxpayer ” and they contend that under the terms of section 280 the transferee is not the taxpayer. In my opinion this question addresses itself solely to the appellate court. It is a matter wholly beyond our jurisdiction and I will assume for the purpose of this dissenting opinion that the appellate courts have jurisdiction. The only power the appellate courts have is to review the determination of the Board and—
Upon such review, such courts shall have power to affirm or, if the decision of the Board is not in accordance with the law, to modify or reverse the decision of the Board, with or without remanding the ease for a rehearing, as justice may require. (Section 1003 (b), Revenue Act of 1926.)
Under these provisions transferees would not be afforded a trial de novo in their cases. No new parties could be impleaded. The appellate court could grant no equitable relief or equitable remedy. Transferees are not afforded their day in a court which could hear their complaints and grant them equitable relief or remedies or determine their cases upon equitable principles.
There is, however, another objection to which I will advert in a few words. The decision of all cases in law and equity arising under the Constitution and laws of the United States and of all controversies to which the United States is a party is confided by clause 1, section 2, Article III of the Constitution to the courts of the United States, as defined in that article. Here, as I have pointed out, there is no controversy over a tax liability. The controversy is whether these petitioners are liable in equity for all the liabilities of the corporation, including the tax. Thus the Board is made to step out of its functions as a tax-determining body and assume the functions of a court of equity, a function which can be exercised only by the courts specified in Article III.
I find comfort in the able decision of Judge Dawson in Owensboro Ditcher & Grader Co. v. Lucas, 18 Fed. (2d) 798, and the two decisions of the United States District Courts of Ohio in Tyroler v. Routzahn, and Clymer v. Nauts (both unreported), where section 280 has been held to be unconstitutional.
I have given this question long and careful consideration and have tried to reconcile every reasonable doubt in favor of the validity of the functions sought to be imposed on the Board. However, I am convinced that the Board can not function as a court of equity, and since it is not a constitutional court, such power can not be conferred upon ⅛. While realizing that the action of the majority to restore, *1290these proceedings for further argument is a matter resting in their sound discretion, I nevertheless feel since the parties have fully stipulated the facts and argued the question at length we should not further delay (section 280 cases having been pending on our docket for over two years) a decision on this very important question.