date alleged in the information (Ledbetter v. United States, 170 U. S. 606, 612, 18 S. Ct. 774, 42 L. Ed. 1162), the sufficiency of the proof that some of the whisky purchased was intoxicating liquor (Hensberg v. United States [C. C. A.] 288 F. 370, 371), or the knowledge of Snyder of the hidden stock of liquor (Parks v. United States [C. C. A.] 297 F. 834, 835), because they are plainly without merit.

[3, 4] It is claimed that the conviction for possession and also for maintenance of a nuisance is a double penalty for the same offense. The question was not properly preserved either by motion to require an election between the several counts, request for instruction, or in the proceedings subsequent to the verdicts. The offense of unlawful possession of intoxicating liquor is not necessarily included as one of the elements of the offense of maintenance of a nuisance under section 21 of the National Prohibition Act, even if the possession existed at the same time as the maintenance of the nuisance. Under that section it is necessary that the keeping or possession of the liquor shall be for sale, barter, or other commercial purposes. Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 92, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548. Unlawful possession, as defined in section 3 of the National Prohibition Act, is not limited to possession for sale, barter, or commercial purposes, but embraces possession for any purpose not permitted by that act. While the jury might have been permitted to have drawn the inference that the stock of liquor which was seized under the search warrant was kept for sale, because of the three sales that were proved, they were not required to do so, but could infer that the liquor was kept for some other illegal purpose. The possession of this stock of liquor under the circumstances made a prima facie case for the government of illegal possession under the provisions of section 33 of the National Prohibition Act, tit. 2 (Comp. St. Ann. Supp. 1923, § 101382t), and the burden of proof was upon the plaintiffs in error to show the lawfulness of the possession. Dillon v. United States (C. C. A.) 279 F. 639, 644; Singleton v. United States (C. C. A.) 290 F. 130, 131; Barker v. United States (C. C. A.) 289 F. 249, 250; Fassolla v. United States (C. C. A.) 285 F. 378, 379; Panzich v. United States (C. C. A.) 285 F. 871,

873.

[5] Exception was taken to a portion of the instructions wherein the court, after stat

ing that anybody who takes part in the violation of the law is just as guilty as any one else in that particular crime, added: "In other words, if any or all of these defendants knew and had knowledge that this liquor was on the premises while they were employed there by the proprietor in control of the premises, to handle it, then they are just as guilty as he is of possession. In other words, the law does not differentiate in the degree of guilt. Of course, however, you must find first that they knew of their own knowledge that that liquor was there, and in deciding that question you can take into consideration all the circumstances and all the evidence, direct or circumstancial."

Other portions of the instructions stated the rule more properly, but not as a corrected statement of the portion of the instructions quoted. By this portion of the instructions the jury were not told that possession by the employé, or his aiding and abetting another in the possession of intoxicating liquor, made a prima facie case of unlawful possession and cast upon such employé the burden of proving that the liquor was lawfully possessed, but were told that knowledge by the employé of the presence of this liquor on the master's premises during the time he was employed there to handle it made the employé equally guilty with the master. This instruction was inaccurate, and tended to mislead the jury as to the guilt of Ben Feinberg under the charge of unlawful possession. Proof of mere knowledge of the presence of the liquor, or of the handling of it as an employé, or of both of these facts, did not necessarily show either possession or unlawful possession by the employé. Because of this erroneous instruction the verdict finding Ben Feinberg guilty of unlawful possession should be set aside.

[6] It is finally contended that the sentences imposed were oppressive and unjust. It is our opinion that the sentences were not excessive, but the extent of the sentence, within the statutory limitation, is a matter that is committed to the discretion of the trial court, and is not reviewable by this court. Krein v. United States (C. C. A.) 282 F. 623, 624; Carpenter v. United States (C. C. A.) 280 F. 598, 601; Hodgskin v. United States (C. C. A.) 279 F. 85, 94. The conviction of Benjamin Feinberg under the first count of the information will be reversed, and the judgments otherwise will be affirmed.

CO. et al.

John Thorpe, of Bismarck, N. D. (George F. Shafer and Gordon Cox, both of Bis

December 11, 1924.)

No. 6604.

1. Courts 107-Supreme Court's construction of words "within the state," in state taxing statute affecting business of carrier crossing state line, not always followed in construing other statutes.

Supreme Court's construction of words "within the state." as used in state taxing statute affecting business of carrier crossing state line, as meaning purely intrastate business is not to be applied always to similar state statutes, but they must be construed in accordance with legislative intent in enacting the particular statute.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Within the State.]

2. Taxation 57-No property subject to taxation, unless legislative intent to tax clearly manifested.

No property is subject to taxation, unless legislative intent to tax it is clearly manifested and state taxing officers have no right to include property not clearly covered thereby. 3. Statutes 245-That failure to tax inter

state income of railroad under revenue statute inequitable cannot be considered in construing statute.

That it would be inequitable to permit carrier's income from interstate business to escape taxation under state statute, when all other income is taxed, cannot be considered in of would be to include property not clearly construing revenue statute, when effect there

within language of act.

4. Taxation 54- Not Inequitable to tax income of carrier earned partly within state, without taxing part of income earned partly within and partly without state.

It would not be inequitable for state to tax income of carrier from purely intrastate business, and not tax that part of income earned partly within and partly without state.

5. Statutes 219-Rule that executive departments' interpretation of statutes, given weight in construing statute, cannot override other rule of construction.

Rule that interpretation of executive departments of acts administered by them has weight in construing statute cannot operate to extent of overriding rule of construction that inclusion of person or thing taxed must be clearly expressed.

6. Taxation 104-North Dakota statute

taxing income of railroads "within the state" held applicable to purely intrastate business only.

Laws N. D. 1919, c. 224, §§ 10, 27, taxing income of railroads "within the state," held applicable to purely intrastate business only, and

not to interstate business coming into state.

Appeal from the District Court of the United States for the District of North Dakota; Andrew Miller, Judge.

Suit by the Northern Pacific Railway Company and another against C. C. Converse and others. Decree for plaintiffs, and defendants appeal. Affirmed.

Charles W. Bunn, of St. Paul, Minn. (M. L. Countryman, of St. Paul, Minn., on the brief), for appellees.

Before STONE and KENYON, Circuit Judges, and FARIS, District Judge.

STONE, Circuit Judge. This is an appeal by certain taxing officers of the state of North Dakota from a permanent injunction restraining them from collecting income taxes against appellees, the Northern Pacific Railway Company and the Great Northern Railway Company. The taxes in question are those levied for the year 1922.

The sole question involved in this appeal is that of the proper construction of the income statute of North Dakota. This statute was enacted in 1919 (chapter 224, Laws of N. D. 1919) and has been amended in certain details, not here important. The dispute here is over what part of the income of appellee the statute is intended to apply. The contention of the state is that the tax applies to the net income from all business of the complainants which touches the state, including purely intrastate and also that originates in, terminates in or passes through portion of the inter state business which the state. The contention of the railway company is that the tax applies only to the purely intrastate business. The argument, as here presented, hinges upon whether the expression "within the state," as used in sections 10 and 27 of the statute, includes interstate commerce which comes inside the state.

[1] The trial court did not attempt to construe this law as an independent proposition but held that the words "within the state" had been construed by the Supreme Court to mean purely intrastate business when used in a taxing statute very similar to the one now under consideration. Pacific

Express Co. v. Seibert, 142 U. S. 339, 12 S. Ct. 250, 35 L. Ed. 1035. We are unable to agree with the trial court that the above phraseology, when used in a taxing statute affecting the business of a carrier crossing the state line, must always be given the meaning which the Supreme Court gave it in the above case. Obviously, the words themselves may mean either purely intrastate

business or intra and interstate business which comes within the state. Therefore, whenever such terms are used in a statute, they must be construed in accordance with the intention of the Legislature in enacting

the particular statute. Hence, we must construe the meaning of these words as used in this statute.

The state urges that its contention is supported by a consideration (1) of the phraseology of the act; (2) by the purpose of the act; (3) by equitable considerations; (4) by the construction given the act by administrative officers of the state.

I.

We have carefully studied this entire act and have noted every use in the act of the expression "within the state." This expression is found in sections 2, 3, 6, 7, 10, 12, 17 and 27. The expression "without the state" is found in sections 6, 7, 10, 12 and 27. After endeavoring carefully to consider the language, of the act as a whole, the particular phraseology of sections 6, 10 and 27, and the above quoted expressions in the connections used in other parts of the act, we are unable to determine the legislative meaning from the language used and are forced to turn to matters outside the act for a solution of the difficulty.

II.

[2] As suggested by counsel for appellants, we think the purpose of the act, as being a revenue measure, should be considered. However, that does not aid appellants. It is the unbroken rule of the federal courts that no property is subject to taxation unless the legislative intent to tax it is clearly made manifest. Smietanka v. Bank, 257 U. S. 602, 606, 42 S. Ct. 223, 66 L. Ed. 391; United States v. Field, 255 U. S. 257, 262, 41 S. Ct. 256, 65 L. Ed. 617, 18 A. L. R. 1461; Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211; Benziger v. United States, 192 U. S. 38, 55, 24 S. Ct. 189, 48 L. Ed. 331; Eidman v. Martinez, 184 U. S. 578, 583, 22 S. Ct. 515, 46 L. Ed. 697; Treat v. White, 181 U. S. 264, 267, 21 S. Ct. 611, 45 L. Ed. 853; American Net & Twine Co. v. Worthington, 141 U. S. 468, 474, 12 S. Ct. 55, 35 L. Ed. 821; Hartranft v. Wiegmann, 121 U. S. 609, 616, 7 S. Ct. 1240, 30 L. Ed. 1012; United States v. Isham, 17 Wall. (84 U. S.) 496, 504, 21 L. Ed. 728; Central R. Co. v. Duffy, 289 F. 354, 359 (3d C. C. A.); Merriam v. United States, 282 F. 851, 855 (2d C. C. A.); Rudolph v. Knox, 280 F. 1007, 1009, 52 App. D. C. 33; Dayton Brass Castings Co. v. Gilligan (C. C. A.) 277 F. 227, 229; Cartier v. Doyle (C. C. A.) 277 F. 150, 152; Rice v. United States, 53 F. 910, 4 C. C. A. 104 (this court); United States v. Wigglesworth, Fed. Cas. No. 16,690 (Justice

Story); Powers v. Barney, Fed. Cas. No. 11,361 (Justice Nelson). The courts have been most liberal in construing the constitutional extent of the powers of taxation of the states. With the state practically allpowerful in its selection of the subjects of taxation and the amount of tax which shall be levied, the helplessness of the citizen demands, for his protection, that if the Legislature intends to tax him, it shall at least be required to say so, in clear and unmistakable terms. Therefore, the fact that this is a revenue producing statute, does not help appellants if the meaning of the statute is ambiguous.

III.

business should be construed as included in [3, 4] Appellants urge that the interstate the statute because it would be inequitable to permit it to escape taxation when all

other income is being taxed. We think there are two answers which must be given to this contention: First, it has been authoritatively decided that such equitable considerations have no place in the construction of a revenue statute when the effect thereof would be to include property of persons not clearly within the language of the act (Partington v. Attorney General, L. R. 4 H. L. 100, 122; 36 Cyc. 1189, and citations in note 77); second, if such considerations could be entertained, we think they would not apply here. Unquestionably the Legislature intended to tax all incomes which were earned from sources within the state

and just as clearly it intended to tax none which was earned from sources wholly without the state. What it intended with those occupying the middle ground, being earned partially within and partially without the state, is the very matter under consideration and we know of no reason why it would be inequitable to tax incomes earned wholly within the state and not tax that part of incomes earned partly within and partly

without the state.

DENVER PARK & AMUSEMENT CO. v. PFLUG.

came to the top end of a wide, inclined, moving canvas belt. The witnesses give the height of the upper end of this belt at from 10 to 12 feet, its lower end 14 to 15 inches above a platform covered with matting, and its length from 28 to 30 feet. It is operated over rollers. It carries those who sit upon it at the top downward to the platform. Mrs Pflug and her two friends got upon this belt, sitting abreast, Mr. Bastian being in the center. Immediately after reaching the platform it was found that Mrs. Pflug's

cember 9, 1924.)

No. 6703.

LEWIS, Circuit Judge. Defendant in error went with friends to the amusement

park of plaintiff in error on the evening of

September 5, 1921. An admission fee was paid to enter the park, and in the park there were various places of amusement which required additional entrance fees. Mrs. Pflug walked about the park, spent some time in dancing, and then went with some of her friends into a place called Crack the Whip. From there they went to another place of amusement called Just for Fun. Mrs. Wimsett and Mr. Bastian were with her. They walked through a dark hallway on an agitated floor, met with other unusual happenings while there, and finally 2 F. (2d)-61

oblique fractures of the lower ends of the tibia and fibula. She brought this action and recovered damages for the injury. The ground of liability charged is this:

"That the said amusement device was inefficiently and negligently operated on the said 5th day of September, 1921, at 11:30 p. m. in that, the usual number of guards were not stationed at the bottom of the chute to catch the patrons as they reached the bottom, so as a result thereof, the feet of the plaintiff shot out from under the plaintiff and she was hurled with such violence to the floor that she broke her right leg and suffered the injuries hereinafter set forth..

* That the said negligence

of the defendant and the resulting dangerthe fact that there were more passengers at ous condition of the device was caused by that particular moment than there were guards to catch them, namely, that while the other woman passenger was assisted by a guard, there was no guard stationed there at that particular time to assist and catch the plaintiff, by reason of which negligence, in permitting and inviting the plaintiff to ride or enter the said amusement device without providing a guard to catch her, the plaintiff, by the momentum of her body descending from the height and slope of the slide, was in nowise assisted, and the plaintiff was hurled violently to the floor, suffering the injuries set forth."

Persons who came down on this belt, in

cluding Mrs. Pflug and her two friends, were instructed to sit in an upright position.

As one's feet touched the platform he usually stood upright and stepped aside. That seemed to be the natural thing to do. The moving belt was an apparent aid in rising. The device was much like slides for children in public parks and school yards. There is no evidence in the record that Mrs. Pflug was hurled violently to the floor, other than the fact that she came down on the belt to the platform. The belt was kept moving at an approximately uni

form ate of speed. Mrs. Pflug is a school teacher, 35 years of age, and must have quickly and fully seen and understood the situation. She describes how the injury occurred thus:

"When we came to the level of the street, the canvas came to the level of the street and it was about 14 inches, 15 from the street, and I went off the end and struck my foot on the walk and broke the ankle. When I came to the end of the belt I didn't bend my knees, no notice telling me to; came down with such swiftness I just slid on and landed in this position, both feet out and rested on this elbow."

There can be no doubt that she landed on the platform. It could not be otherwise. The guard, standing on one side at the foot of the belt, testified that as she came down she was leaning on the left side somewhat and that she landed off sidewise. Mr. Bastian did not testify. Mrs. Wimsett's testimony is more general than that of Mrs. Pflug as to how the injury occurred. She said that she noticed the position of plaintiff when she landed, and that her legs were straight out with the injured foot turned over slightly. As the three came down the guard stood on the side on which Mrs: Wimsett sat, and he testified that as she reached the platform and almost got to her feet he took hold of her hand and assisted her. Mrs. Wimsett said that the guard caught her at the bottom, took hold of her arm and placed her on her feet. We think it evident that the injury did not occur while Mrs. Pflug was endeavoring to rise to her feet after she found herself prone upon the platform, but that it occurred, as she says, when her foot struck the (platform) walk; and that she landed in the way she did because she kept her legs straight out and rigid. She did not bend her knees when she reached the end of the belt, thus permitting both feet to come upon the platform, and thereupon attempt to stand. That would seem to be a precautionary act that every one would take under the circumstances without being told to do so.

It was further charged in the complaint that customarily the defendant had two guards instead of one, as on this occasion, and when it had only one guard present it would let only one person come down at one time. There was only one guard present on this occasion, but no one testified that it had ever been the custom or practice to permit only one person to come down on the belt when only one guard was present. Mrs. Richards, who was one of the party, was standing on the opposite side of the

street or road from the platform, and she testified that she went to Mrs. Pflug while she was still on the platform and that the guard said: "Unfortunately there was but one guard here and usually there are two." The guard denied that he made the statement. Mrs. Richards further testified that she had come down on this belt several times on other occasions and that on those occasions there were attendants on each side to catch passengers, and that she was always caught as she came down. This was also denied by the guard and others, except that all testified that on Children's Days there were two guards, but that their duties were not to catch the children who came down but to keep the platform elear after they had reached it. Mr. Moore, assistant general manager of plaintiff in error, testified that about 60,000 patrons had come down the belt that season, of whom 20,000 were children, and that this was the only accident that had occurred, that there was only one guard during the season at the foot of the belt, except on Children's Days.

Fred Knoch, the guard throughout the season, who was present as such on this oecasion, testified that he was the only one stationed there as guard at any time except on Children's Days, that no assistance was rendered by him until the patron's feet touched the floor, that most of the people came right off the belt on their feet, that his duty was more to keep people away, he had to move them back, they would stand up and watch the rest coming down. Mr. Friederich, general manager for plaintiff in error and also for the company that owned and operated this amusement, testified that there was never but one attendant stationed at the foot of the belt except on Children's Days, and that that was for the purpose of avoiding congestion. It was his duty to engage and discharge employés for both companies. The testimony is convincing that the only service performed by the guard in the respects here contended for was to assist old ladies or stout ladies, or those who might appear to lose their balance when they reached the platform. That was the assistance rendered to Mrs. Wimsett, and was doubtless the assistance rendered to Mrs. Richards on former occasions. She does not explain what she means by saying that she was caught on former occasions. It cannot be believed from the record that any one was caught on the belt before she had reached the platform. No inference can be drawn from the facts that a guard did or could prevent a patron's feet from coming on to the platform under the weight