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George M. Laughlins, Henry A. Laughlins, Jr., and Benjamin F. Jones, Jr., as "members of the limited partnership association doing business under the firm name and style of Jones & Laughlins, Limited, which said association is a limited partnership association organized under an act of the general assembly of Pennsylvania, approved June 23d [2d), 1874, entitled 'An Act Authorizing the Formation of Partnership Associations in Which the Capital Subscribed Shall Alone be Re-recorder of Franklin_county, Ohio, an affisponsible for the Debts of the Association, except under Certain Circumstances,' and who "Have Their Office and Principal Place The object of the filing was to conform to the of Business in the City of Pittsburgh," and provisions of §§ 3184 (as amended April which association is "a Citizen of the State 13th, 1894, 91 Ohio Laws, 135), and 3185 of of Pennsylvania." Pa. Laws 1874, p. 271. the Revised Statutes of Ohio, both sections The defendant first named in the bill is relating to mechanic's liens, and thereby obthe Great Southern Fire Proof Hotel Com-tain, in behalf of Jones & Laughlins, Limitpany, a corporation of the state of Ohio; and ed, for the amount due them, a lien upon the some of the defendants are corporations and hotel and the opera house connected with citizens of states other than the state of it, as well as upon the land on which they Pennsylvania.

$43,296.74. All of that sum was paid by McClain except $11,410.02, which was due to the plaintiffs with interest from January 28, 1896.

On the 11th day of August, 1896, McClain executed a deed of assignment for the benefit of his creditors. And on the 21st day of April, 1896, within four months after the above materials were delivered to McClain,[452) Jones & Laughlins, Limited, filed with the

The remaining defendants are thus described in the bill:

"Taylor, Beall, & Company is a partner[451]ship doing business in the city of Columbus and state of Ohio, the individual partners thereof being William D. Taylor, James P. Beall, and William J. Keever."

"Sturgeon, Ford, & Company is a part nership doing business in the city of Columbus and state of Ohio, the individual partners thereof being unknown to your orators."

"Meacham & Wright is a partnership doing business in the city of Columbus and state of Ohio, the individual partners thereof being Floras D. Meacham and Frank S. Wright."

davit containing an itemized statement of

the amount and value of such materials.

stood.

After stating that the defendants each claim to have some interest in the property in question as lienholders or otherwise, the exact nature and extent of which was unknown to the plaintiff, the relief asked was: 1. That the defendants be required to answer in the property, and failing to do so that and fully set forth their respective interests they be barred from asserting any claim thereto. 2. That a receiver be appointed to mand be declared a valid and subsisting lien collect rents. 3. That the plaintiff's deon the property. 4. That all the liens be marshalled, the premises sold, and the pro

ceeds distributed.

The Great Southern Fire Proof Hotel

insuflicient.

"Sosman & Landis is a partnership of Chi- Company demurred generally to the bill as
cago, Illinois, doing business in the state of
Ohio, the names of the individual partners
thereof being unknown to your orators."

"Dundon & Bergin is a partnership doing business in the city of Columbus, state of Ohio, the individual partners thereof being Thomas J. Dundon and Matthew J. Bergin.'

"H. C. Johnson & Company is a partner ship doing business in the state of Ohio, the names of the individual partners thereof being unknown to your orators."

The defendants Sosman & Landis filed their answer and cross bill, claiming a lien upon the property for a balance due under pursuant to which they furnished scenery, stage work, and fixtures for the improvements contemplated by the contract between McClain and the hotel company.

a contract made between them and McClain

cross bill a demurrer was also filed.

To that

The cause was heard in the circuit court

"Schoedinger, Fearn, & Company is a part- upon the demurrers, the only question arnership doing business in the state of Ohio, gued being the constitutionality of the Ohio the individual partners thereof being F. O statute of April 13, 1894. That court susSchoedinger, W. A. Fearn, and J. R. Dick-tained the demurrers, and dismissed the bill

son."

"L. Hiltgartner & Sons is a partnership doing business in the city of Columbus, state of Ohio, the names of the individual partners thereof being unknown to your orators." The nature of the case made by the bill is as follows:

By written agreement between Jones & Laughlins, Limited, and W. J. McClain, dated December 13, 1894, the former agreed, upon certain terms, to furnish structural steel for use in the erection of the Great Southern Hotel at Columbus, for the construction of which McClain had previously contracted with the Great Southern Fire Proof Hotel Company. Under the above contract Jones & Laughlins, Limited, shipped and furnished to McClain structural steel of the value of

[blocks in formation]

Upon appeal to the circuit court of appeals the decree of *the circuit court was re-(453) versed-the former court holding that the statute of Ohio in question was not void. 58 U. S. App. 397. 86 Fed. Rep. 370, 30 C. C. A. 108. The hotel company then applied for and obtained this writ of certiorari.

The bill rests the jurisdiction of the cir cuit court upon the ground of the diverse citizenship of the parties. But was the case as presented by the record one of which the circuit court of the United States could take

cognizance by reason of diversity of citizen- | declaration described the defendant as the ship? When this question was suggested at "Lafayette Insurance Company, a citizen of the argument counsel responded that no ob- the state of Indiana." This court said: jection had been urged to the jurisdiction "This averment is not sufficient to show juof that court. But the failure of par- risdiction. It does not appear from it that ties to urge objections of that character can- the Lafayette Insurance Company is a corponot relieve this court from the duty of as-ration, or if it be such, by the law of what certaining from the record whether the cir-state it was created. The averment that cuit court could properly take jurisdiction of this suit. In Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382, 28 L. ed. 462, 463, 4 Sup. Ct. Rep. 510, 511, the court, after observing that the jurisdiction of a circuit court fails, unless the necessary citizenship alirmatively appears in the pleadings or elsewhere in the record (Grace v. American Cent. Ins. Co. 109 U. S. 278, 283, 27 L. ed. 932, 934, 3 Sup. Ct. Rep. 207; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057), said: "The rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not af firmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it. This rule was adopted in Capron v. Van Noorden, 2 Cranch, 126, 2 L. ed. 229, decided in 1804, where a judgment was reversed, on the ap: plication of the party against whom it had been rendered in the circuit court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which he invoked. This case [454] vas cited with approval by Chief Justice Marshall in Brown v. Keene, 8 Pet. 112, 8 L. ed. 885." These rules have been recognized and applied in numerous cases.†

the company is a citizen of the state of Indiana can have no sensible meaning attached to it. This court does not hold that either a ciation into a body politic, created by law, voluntary association of persons, or an assois a citizen of a state within the meaning of the Constitution. And, therefore, if the defective averment in the declaration had not been otherwise supplied, the suit must have been dismissed." The case of Chapman v. Burney, 129 U. S. 677, 682, 32 L. ed. 800. 801, 9 Sup. Ct. Rep. 426, 428, is decisive of the Present question. That was an action in the United States Express Company. circuit court of the United States by the This court said: "On looking into the record we find no satisfactory showing as to the citi zenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint-stock company organized under a law of the state But the express company cannot be a citizen of New York, and is a citizen *of that state.[455) of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the comYork is not an allegation that it is a corpopany was organized under the laws of New ration. In fact, the allegation is, that the company is not a corporation, but a jointAnd although it may be authorized by the stock company-that is, a mere partnership. laws of the state of New York to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a Federal court. The company may have been organized under the laws of the state of New York, and may be doing business in that state, and yet all the memThe record does not show the citizenship of bers of it may not be citizens of that state. We are of opinion that the plaintiff as a Barney or of any of the members of the comlimited partnership association was not enti-pany. They are not shown to be citizens of tled to invoke the jurisdiction of the circuit court. It was not alleged to be, nor could it have alleged that it was, a corporation in virtue of the statute of Pennsylvania under which, according to the averments of the bill, it was organized. In Lafayette Ins. Co. v. French, 18 How. 404, 405, 15 L. ed. 451, 452, which was an action brought by citizens of Ohio in the circuit court of the United States for the district of Indiana, the

+Hancock v. Holbrook, 112 U. S. 229, 231, 28 L. ed. 714, 715, 5 Sup. Ct. Rep. 115: Thayer v. Life Asso. of America, 112 U. S. 717, 720. 28 L. ed. 864, 865, 5 Sup. Ct. Rep. 355; Ayers v. Watson, 113 U. S. 594. 598. 28 L. ed. 1093, 1094. 5 Sup. Ct. Rep. 641: King Bridge Co. v. Otoe County, 120 U. S. 225, 226, 30 L. ed. 623, 624, 7 Sup. Ct. Rep. 552; Metcalf v. Watertown, 128 U. S. 586, 587, 32 L. ed. 543, 9 Sup. Ct. Rep. 173: Morris v. Gilmer, 129 U. S. 315, 325, 32 L. ed. 690. 693. 9 Sup. Ct. Rep. 289: Chapman v. Barney, 129 U. S. 677, 681, 32 L. ed. 800,

Grace v. some state other than Illinois. American Cent. Ins. Co. 109 U. S. 278, 283, 27 L. ed. 932, 934, 3 Sup. Ct. Rep. 207. and authorities there cited. For these reasons we are of opinion that the record does not show a case of which the circuit court could take jurisdiction."

The case of United States Exp. Co. v. Kountze Bros. 8 Wall. 342, 351, 19 L. ed.457, 460, to which attention is called by a sup

801, 9 Sup. Ct. Rep. 426; Stevens 7. Nichols, 130 U. S. 230, 32 L. ed. 914, 9 Sup. Ct. Rep. 518: Graves v. Corbin, 132 U. S. 571, 590, 33 L. ed. 462, 468, 10 Sup. Ct. Rep. 196; Parker v. Ormsby, 141 U. S. 81, 83, 35 L. ed. 654, 655, 11 Sup. Ct. Rep. 912; Martin v. Baltimore & O. R. Co. 151 U. S. 673, 689, 38 L. ed. 311. 317. 14 Sup. Ct. Rep. 533; Mattingly v. Northwestern Virginia R. Co. 158 U. S. 53, 57, 39 L. ed. 894, 895, 15 Sup. Ct. Rep. 725; Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 98, 42 L. ed. 672, 675, 18 Sup. Ct. Rep. 264.

plementary brief, does not announce a different rule. The declaration in that case, singularly enough, described the defendant company as a "foreign corporation, formed under and created by the laws of the state of New York." Looking at the allegations of the pleadings, and there being no evidence to the contrary, this court held that the averment as to the citizenship of the defendant was suffici, observing "It is alleged that the United States Express Company, the defendant in the suit, is a foreign corporation formed under and created by the laws of the state of New York. The obvious meaning of this allegation is that the defendant is a citizen of the state of New York."

an association," that court said in Oak
Ridge Coal Co. v. Rogers, 108 Pa. 147, 150,
"is not technically a corporation. Yet it
has many of the characteristics of one," and
"it may not be improper to call such an asso-
ciation a quasi-corporation." In
Hill v.
Stetler, 127 Pa. 145, 161, 13 Atl. 306, 17
Atl. 887, referring to the act of June 2, 1874,
the court said that it provided for the *crea-[457;
tion of "a new artificial person to be called
a joint-stock association, having some of the
characteristics of a partnership and some of
a corporation."

In Carter v. Producers' Oil Co. 182 Pa.
551, 573, 574, 38 Atl. 571, 576, which in-
volved the validity of a rule adopted by a
limited partnership association organized
under the Pennsylvania statute of June 2,
1874, and its supplements, and which rule
prohibited any person who acquired the capi-
tal stock of a member from exercising the
as such, the court said: "We cannot assent
to the plaintiff's claim that the defendant
company is a corporation and restricted, in
the adoption of by-laws, rules, and regula-
tions for its government, to such as it is
within the power of the latter to prescribe.
pany has some of the qualities of a corpora-
tion, but it is, nevertheless, a partnership as-
sociation, governed by the statutes and arti-
cles under which it was organized, and the
rules and regulations it may prescribe in
execution of the power with which the stat-
utes have invested it."

It has been suggested that the plaintiffs are entitled to sue, and may be sued, by their association name. 1 Brightly's Purdon's Digest, Pa. (12th ed.) 1088, title Joint Stock Companies, § 16. But the capac-privileges of a member, unless he was elected ity to sue and be sued by the name of the association does not make the plaintiffs a corporation within the rule that a suit by or [456]against a corporation in its corporate *name in a court of the United States is conclusively presumed to be one by or against citizens of the state creating the corporation. Louis-It may be conceded that the defendant comville, C. & C. R. Co. v. Letson, 2 How. 497, 11 L. ed. 353; Ohio & M. R. Co. v. Wheeler, 1 Black, 286, 17 L. ed. 130; National S. S. Co. v. Tugman, 106 U. S. 118, 120, 27 L. ed. 87, 88, 1 Sup. Ct. Rep. 58. The rule that for purposes of jurisdiction and within the meaning of the clause of the Constitution extending the judicial powers of the United States to controversies between citizens of different states, a corporation was to be deemed a citizen of the state creating it, has been so long recognized and applied that it is not now to be questioned. No such rule, however, has been applied to partnership associations although such associations may have some of the characteristics of a corporation. When the question relates to the jurisdiction of a circuit court of the United

States as resting on the diverse citizenship of the parties we must look in the case of a suit by or against a partnership association to the citizenship of the several persons composing such association.

Nor can we accede to the suggestion that this question of jurisdiction is affected by the clause of the Constitution of Pennsylvania providing that the term "corporations," as used in article XVI. of that instrument, "shall be construed to include all joint-stock companies or associations having any of the powers or privileges of corporations not possessed by individuals or partnerships." Pa. Const. art. XVI. § 13. The only effect of that clause is to place the joint-stock companies or associations referred to under the restrictions imposed by that article upon corporations; and not to invest them with all the attributes of corporations.

We have not been referred to any case in the supreme court of Pennsylvania which distinctly places limited partnership associations, created under the statutes of that state, on the basis of corporations. "Such

That a limited partnership association created under the Pennsylvania statute may be described as a "quasi corporation," having some of the characteristics of a corporation, or as a "new artificial person," is not a sufficient reason for regarding it as a corporation within the jurisdictional rule heretofore adverted to. That rule must not be extended. We are unwilling to extend it so as to embrace partnership associations.

We have not overlooked the case of An

drews Bros. Co. v. Youngstown Coke Co. 58 U. S. App. 444, 86 Fed. Rep. 585, 30 C. C. A. 293, in which the circuit court of appeals for held that limited partnership associations the sixth circuit, speaking by Judge Lurton, organized under the Pennsylvania statute requirement of diverse citizenship. For the were corporations within the jurisdictional

reasons stated, we are unable to concur in the view taken by that court.

We therefore adjudge that as the bill does not make a case arising under the Constitution and laws of the United States, it was necessary to set out the citizenship of the individual members of the partnership associa tion of Jones & Laughlins, Limited, which brought this suit.

*Another question as to jurisdiction arises[458] on the record. The citizenship of the members of the several partnerships that are named as defendants does not appear from the pleadings or otherwise. An allegation as to the state in which those firms were doing business is not sufficient to show the citi zenship of the individual partners. The relief sought is the marshaling of all the lien

debts on the hotel and the opera house of the Great Southern Fire Proof Hotel Company, the sale of the property, and the distribution of the proceeds among the parties according to their respective rights. As no allusion was made to this latter at the argument before us, we do not now express any opinion upon the question whether the citizenship of the individuals composing the defendant partnerships doing business in Ohio is material to the jurisdiction of the circuit court. We leave that to be determined by the court below, if an application be made to amend the pleadings as to the citizenship of the parties.

3.

the United States, whose presence at his post of duty is important to the public interests, presents such a case of urgency as will war rant the interference by writ of habeas corpus from a Federal court, even before final action by the state court, to determine whether or not the imprisonment is in violation of the Constitution or laws of the United States. Regulations of the Treasury Department prohibiting a collector of internal revenue from producing records in his office, or copies thereof, in a state court, are within the power conferred upon the Secretary of the Treasury by U. S. Rev. Stat. § 161; and therefore an attempt of a state court to punish him for obeying such regulations will be in violation of his rights under the Constitution and laws of the United States, against which he will be protected by the Federal courts.

[No. 370.]

9, 1900.

Without considering the merits of the case. we are constrained to reverse the judgments of the circuit court of appeals and of the eircuit court, and remand the cause for further proceedings consistent with this opinion. Under the circumstances, the plaintiffs Submitted January 8, 1900. Decided April should be allowed, upon application, to amend the bill upon the subject of the citizenship of the parties. If the amendment shows a case within the jurisdiction of the circuit court, the parties should be permitted to proceed to a final hearing; otherwise. the bill should be dismissed at the plaintiffs' costs without prejudice to another suit in a court of competent jurisdiction.

Reversed.

APPEAL from final order of the District

Court of the United States for the District of Kentucky discharging an internal revenue collector from the custody of a sherilf. Affirmed.

See same case below, 96 Fed. Rep. 552.
The facts are stated in the opinion.

Messrs. John G. Carlisle, Henry M. Winslow and William S. Taylor submitted the cause for appellant. Messrs. Rus

459]*JOHN T. BOSKE, Sheriff of Kenton Coun- sell & Winslow and Winslow & Winslow

ty, Kentucky, Appt.,

v.

DAVID N. COMINGORE.

(See S. C. Reporter's ed. 459-470.)

were with them on the brief.

A habeas corpus proceeding is not proper to determine a question like the one arising in this case.

Hirsch v. Pomeroy, 57 U. S. App. 165, 87 Fed. Rep. 1005, 31 C. C. A. 350; Ex parte Appeal--Federal question-use of papers in Reed, 100 U. S. 13, 25 L. ed. 538; Er custody of internal revenue collector- parte Kearney, 7 Wheat. 38, 5 L. ed. 391; order by state court for their production x parte Watkins, 3 Pet. 193, 7 L. ed. -validity of Treasury regulations prohib-650; Ex parte Milligan, 4 Wall. 2, 18 L. ed. iting it-protection of collector-habeas 281. See also Ex parte Crouch, 112 U. S. corpus to release him from custody of 178, 28 L. ed. 690, 5 Sup. Ct. Rep. 96, and

state court.

cases cited.

An internal revenue collector is not justi1. The question whether or not the Constified in refusing to produce, in obedience to a tution of the United States allows regula- subpoena duces tecum issued by a state court, tions of the Treasury Department adopted by the application or return made by the permerely executive officers to be regarded as son who desires to pay the tax imposed by having the force of law is one that involves the statutes of the United States upon perthe construction or application of the Constitution of the United States, within the either by the nature of such documents or sons engaged in the retail liquor business, meaning of the provision of the act of Con- by alleged instructions from the Cmisgress of March 3, 1891, with respect to appeals to be taken from the district or circuit sioner of internal Revenue not to produce courts direct to the Supreme Court of the such papers for use in evidence in the state United States. courts.

2.

The detention in prison by state authorities, of an officer of the revenue service of

NOTE.-A8 to jurisdiction of Federal courts on habeas corpus-see Re Huse, 25 C. C. A. 1, and note.

As to jurisdiction of United States courts to
issue writs of habeas corpus-see note to Re
Reinitz (C. C. S. D. N. Y.) 4 L. R. A. 236.
As to power of Federal courts to issue writ

of habeas corpus-see note to Tinsley v. Ander-
son, 43 L. ed. U. S. 92.

As to when habeas corpus will be issuedsee notes to United States v. Hamilton, 1 L. ed. U. S. 490; Cortes v. Jacobus, 34 L. ed. U. S. 464 Pearce v. Texas, 39 L. ed. U. S. 164. 846

Re Hirsch, 74 Fed. Rep. 928.

The regulations of the department cannot have the effect of amending the law. They may aid in carrying the law as it exists into execution, but they cannot change its positive provisions.

United States v. Two Hundred Barrels of Whiskey, 95 U. S. 571, 24 L. ed. 491.

Messrs. Henry M. Winslow, Clifton J. Pratt, and Winslow & Winslow filed a reply brief for appellant.

Assistant Attorney General Boyd submitted the cause for appellee:

Regulations made by the Secretary of the

Treasury under § 251 of the Revised Stat-pose of raising revenue for the United utes, not inconsistent with law, and fairly States; and there is no provision of law auwithin its scope and purpose, and not in- thorizing the sending out of these records fringing upon any existing legal rights of or of any copies thereof for use against the individuals have the force of law. special-tax payers in cases not arising under United States v. Hutton, 10 Ben. 268, Fed. the laws of the United States. The giving Cas. No. 15,433; 15 Ops. Atty. Gen. 128. out of such records or any copies thereof by Regulations made by the Commissioner, a collector in such cases is held to be conpursuant to the statutory authority, with trary to public policy, and not to be permitthe approval of the Secretary of the Treasted. As to any other records than those reury, in respect to the assessment and collec-lating to special-tax payers, collectors are tion of internal taxes, have the force of stat

utes.

Re Huttman, 70 Fed. Rep. 699; Re Weeks, $2 Fed. Rep. 729; Gratiot v. United States, 4 How. 80, 11 L. ed. 884; Ex parte Reed, 100 U. S. 13, 25 L. ed. 538; United States v. Barrous, 1 Abb. U. S. 351, Fed. Cas. No. 14,529; United States v. Eliason, 15 Pet. 291, 10 L.

ed. 968.

The Federal government cannot dictate as to evidence in state courts, but it cannot be required to provide evidence for them; and the state has no right to Federal instruments of purely Federal character for proof, unless they are left within its reach, and these are not. but are put without that reach.

Re Wocks, 82 Fed Rep. 732.

also forbidden to furnish them or any copies thereof at the request of any person. Where copies thereof are desired for the use of parties to a suit, whether in a state court or in a court of the United States, collectors should refer the persons interested to the following paragraph in rule X of the rules and regulations of the Treasury Department, namely: In all cases where copies of documents or records are desired by or on behalf of parties to a suit, whether in a court of the United States or any other, such copies shall be furnished to the court only, and on a rule of the court upon the Secretary of the Treasury requesting the same. Whenever such rule of the court shall have been obtained collectors are directed to carefully prepare a copy of the rec

[460] *Mr. Justice Harlan delivered the opin-ord or document containing the information

ion of the court:

This is an appeal from a final order of the district court of the United States for the district of Kentucky discharging appellee, United States internal revenue collector for the sixth collection district in Kentucky, from the custody of the appellant as sheriff of Kenton county in that commonwealth. The discharge was upon the ground that the imprisonment and detention of the appellee were in violation of the Constitution and laws of the United States. That ruling presents the only question to be considered. Under date of April 15, 1898, the Commissioners of Internal Revenue, with the approval of the Secretary of the Treasury, promulgated certain regulations for the government of collectors of internal revenue, as follows:

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"All records in the offices of collectors of internal revenue or of any of their deputies are in their custody and control for purposes relating to the collection of the revenues of the United States only. They have no control of them and no discretion with regard to permitting the use of them for any other purpose. Collectors are hereby pro[461hibited from giving out any special tax records or any copies thereof to private persons or to local officers, or to produce such records or copies thereof in a state court, whether in answer to subpoenas duces tecum or otherwise. Whenever such subpoenas shall have been served upon them, they will appear in court in answer thereto and respectfully decline to produce the records called for, on the ground of being prohibited therefrom by the regulations of this department. The information contained in the records relating to special-tax payers in the collector's office is furnished by these persons under compulsion of law for the pur

called for and send it to this office, whereupon it will be transmitted to the Secretary of the Treasury with a request for its authentication, under the seal of the department, and transmission to the judge of the court calling for it, unless it should be found that circumstances or conditions exist which makes it necessary to decline, in the interest of the public service, to furnish such a copy."

These Treasury regulations being in force, a proceeding was instituted in the county [462] court of Carroll county, Kentucky-a court of limited jurisdiction-in the name of the commonwealth against Elias Block & Sons, for the purpose of ascertaining the amount, and value of a large amount of whisky which, it was alleged, the defendants had in their bonded warehouses for a named period, but had not listed for taxation, and of enforcing the assessment and payment of state and county taxes thereon. Ky. Stat. § 4241.

In the progress of that proceeding the commonwealth of Kentucky, represented by the auditor's agent, took the deposition of Comingore, collector of internal revenue. In answer to questions propounded to him, the collector stated that Block & Sons, owners of a distillery, made monthly reports to his office of liquors manufactured by them and deposited in the bonded warehouses on the distillery premises from 1887 on; that the defendants made application from time to time for permission to withdraw liquors. from bond; and that such reports, commencing October 1. 1885, and ending July 1, 1897, were on the files of his office, but not under his control except as collector. He was then asked to file copies of those reports and make them part of his deposition. This he declined to do. "under § 3167 of the

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