(dissenting in part).
I dissent from so much of the opinion and judgment as grants a jury trial on the peripheral tax claims asserted solely against Bernard Damsky. In accordance with the precedents, as well as reason and policy, I find the question to be one purely of statutory intent, not of constitutional right. And since Congress —which has shown an ability to speak clearly on the issue when it so chooses 1 —has conspicuously refrained from stating a requirement of trial by jury in this area of tax collection, I would hold Judge Zavatt correct in denying all jury trial demands in his decision below, D.C.E.D. N.Y., 187 F.Supp. 404. See also Judge Bartels’ ruling in United States v. Malakie, D.C.E.D.N.Y., 188 F.Supp. 592.
The very careful and learned research by my brother Friendly into the history of the English Court of Exchequer beginning with the twelfth century serves in its fascinating, if uncertain, detail to highlight the artificiality of the chain of reasoning by which this restriction on twentieth century tax collection is discovered. The nub of the decision is the ruling that there is a constitutional right to a jury in the taxing area thus delimited. For the absence of any suggestion of the restriction in any Congressional enactment precludes its support on merely statutory grounds. Indeed, the extensive discussion in the remainder of the opinion finding no jury right as to the other claims involving the other defendants — including the claim for a personal *58judgment against Ollie and, even more strikingly, the claim for a personal judgment against Bernard on his joint liability with Ollie — shows conclusively the lack of any ground for the decision short of the constitutional right. True, I would have reached these results more directly and simply than does the opinion; moreover, I believe the discussion there had goes far to demonstrate the fallacy of the reasoning indulged in as to the personal claims against Bernard. But in any event it does show conclusively the absence of any supporting statute.
So we are driven to the issue of constitutional right. But here, too, there are serious difficulties, general and specific, in the result reached. At the outset there are to be overridden the precedents clearly stating it to be “within the undoubted power of Congress to provide any reasonable system for the collection of taxes and the recovery of them when illegal, without a jury trial — if only the injunction against the taking of property without due process of law in the method of collection and protection of the taxpayer is satisfied.” This explicit statement of Chief Justice Taft in Wick-wire v. Reinecke, 275 U.S. 101, 105-106, 48 S.Ct. 43, 72 L.Ed. 184, is amply supported by the cases he cites, as it seems to me the analysis of them in my brothers’ opinion actually demonstrates.2 Perhaps even more emphatic is the opinion of Justice Brandeis in Phillips v. C. I. R., 283 U.S. 589, 595, 599 note, 51 S.Ct. 608, 612, 75 L.Ed. 1298, upholding the right of the United States to collect its revenue by summary administrative proceedings, with right of review by the Board of Tax Appeals and the courts: “The further objection that this mode of review may deprive hhe taxpayer of a jury trial contrary to the Seventh Amendment, is unfounded.” See also 1 Davis, Administrative Law Treatise 594, 595 (1958). And of course actual and uniform practice is worth more than volumes of remote history or abstract theory.
Next we must consider the extensive statutory remedies. The preferred methods of income tax collection are now obviously through the broad and all-inclusive property lien of I.R.C.1954, § 6321— valid against the taxpayer himself without formal filing of notice, id. § 6323, and enforced by district court action under id. § 7403 — and the increasingly popular (Congress-wise) withholding tax or collection at the source, see, e. g., id. §§ 31-32, 1441, 3402, which seems likely soon to be extended to additional sources of revenue. Clearly these methods do not set boundaries to the government’s power to insure effective collection of the revenue. For the statutes definitely provide that a duly imposed tax “may be collected by levy or by a proceeding in court,” id. § 6502, which is elsewhere referred to broadly as a “civil action,” id. § 7401, while the district courts are given jurisdiction, inter alia, to render such judgments in “civil actions * * * as may be necessary or appropriate for the enforcement of the internal revenue laws,” id. § 7402. These broad and expanding concepts — not in any way limited to the ancient writ of debt — suggest the wide sweep of the government taxing power with which the implication of hidden restrictions is entirely inconsistent.3
To reach the conclusion that the Seventh Amendment does restrict tax gathering in this one limited area — i. e., where *59the taxpayer has neither wages nor property — my brothers must resort to a technique which I must concede is not uncommon to lawyers, but which I do suggest would seem strange to any but lawyers. For first they must attach to this single form of claim an inapt label, namely, that of the writ of debt, and next, having made this venture in nomenclature and having further found on somewhat uncertain history that the writ always required a jury, they must hold that the name draws the action irrevocably into the constitutional aegis. I believe each of these steps to be quite unreal and unjustified. The modern all-inclusive civil action under the federal rules does not look like the old writ of debt, as set forth, say, in Chitty; and the attempt so to confine its broad terms seems to me at variance with the obvious intent of Congress to provide the widest remedial actions possible for tax collection. And even if by a strain upon history we now give it this limited name, that does not change the fact that the action is one by the sovereign to collect its taxes where the claim that a jury trial is constitutionally required has been authoritatively held “unfounded.” The result seems, therefore, to be one of logistic bootstrap lifting; it justifies my brothers’ apology that their discussion “may seem to reek unduly of the study” or, I would add, “if not of the museum.”
Of course American lawyers and judges have found the jury of immense value in assuming the burden of adjudicating troublesome issues of fact, notably in criminal and in negligence cases. But it is not showing care for the jury to force it into classes of claims where the right is dubious and the use inconvenient and burdensome. The present strain on juries in the cases where it is most needed is such that true believers should pause before they push it too far. The delays and court congestion of the jury calendars are a source of increasing tension, the long waits and infrequent sittings are a burden to the conscientious juror and lead him increasingly to avoid service, and Congress is regularly objecting to what it considers the undue cost of juries and cutting the appropriations therefor. And the actual inconvenience to adjudication by a rigid rule such as here announced is obvious. The claims made against Bernard, who has no property upon which the levy may be made, presumably are the least important of any before the court; and he was doubtless included both to foreclose any possible interest he might have in his wife’s property and to prevent his later assertion of res judicata against other claims. And yet the very lack of substantial value to his case gives him alone a constitutional right of trial by jury and the power to condition and shape the entire litigation. Surely this is anomalous. Surely, too, the reasoning to that end is not sufficiently compulsive to be accepted as the only one possible in the premises. The result reached below seems more consistent with a modern age and a modern procedure, and so I would deny the petition in toto.
. Thus 28 U.S.C. § 2402, which required trial to the court without a jury of all actions against the United States under 28 U.S.C. § 1346, was amended in 1954, 68 Stat. 589, to provide for a jury trial at the request of either party in actions under 28 U.S.C. § 1346(a) (1), i. e., actions for tax refunds. In consequence a taxpayer may have the benefit of a jury by paying his assessment and suing for a refund.
. Wickwire v. Reinecke, 275 U.S. 101, 48 S.Ct. 43, 72 L.Ed. 184, was actually a tax-refund suit, where the holding (necessary to decision of the procedural point at issue) was that the jury right was granted by statute and not by the Constitution. Cf. note 1 supra for later developments of the rule.
. Various cases are cited which are thought to give some support — rather faint at best- — to this matter of labeling; but they do not deal with the jury issue, and since in general they are permissive, rather than restrictive, X believe them rather to support the view I have taken than the opposite. See, e. g., United States v. Havner, 8 Cir., 101 F.2d 161, 165, and Price v. United States, 269 U.S. 492, 500, 46 S.Ct. 180, 70 L.Ed. 373, and compare also Pipola v. Chicco, 2 Cir., 274 F.2d 909.