"Q. When was the first one? A. The first one was in July of last year; that is my recollection.

"Q. How long did you stay there then? A. Till the 1st day of November of the same year.

"Q. When was your next assignment? A. The 1st day of March, this year. "Q. How long did you stay there at that time? A. Till the 18th day of March.

"Q. From the 1st of March till the 17th? A. Yes, sir.

"Q. Now, this last time? A. The 18th day of May, this year.

"Q. And you stayed there until this transpired? A. Yes, sir.

"Q. I want to know if you had occasion to visit that distillery, or know anything about it, and in what respect do you know what was around there, and what was being done there? A. I know nothing except what knowledge was gained as an officer.

"Q. Were you ever there in that distillery? A. Except as an officer?

"Q. Yes. A. No, sir; I never was.

"Q. You were never there between any of these visits? A. No, sir.

"Q. When assigned, did you go directly there and relieve somebody else? A. Yes, sir; when I was assigned I went to relieve another man.

"Q. And you stayed there until you were relieved by somebody? A. Yes, sir. "Q. And what you know about it is during periods when you were there as storekeeper and gauger? A. Yes, sir.

"Q. Were you there in that capacity all three times? A. Yes, I was there as storekeeper and gauger.

"Q. All three times as storekeeper and gauger? A. Yes, sir."

He then answered two other questions by the district attorney, as follows:

"Q. Have you any personal knowledge relative to the operations of Cureton's distillery in Dade county, or the products manufactured there, except such knowledge as you obtained in your official capacity as storekeeper and gauger, while in the discharge of your official duties? A. I have no other knowledge except official knowledge.

"Q. Have you any personal knowledge relative to the matters about which you were interrogated and refused to answer before the grand jury in Dade county, recently, except such knowledge as you obtained in your official capacity as storekeeper and gauger at that distillery, while in the discharge of your official duties? A. I did not have any other knowledge except official knowledge."

It is not denied, as I understand it, that the only knowledge Stegall had of what was being done at Cureton's distillery was knowledge. which he obtained while there in his official capacity as storekeeper and gauger, and it is not claimed that Stegall had any knowledge except such as he obtained while there officially. The contention on behalf of the sheriff is, notwithstanding the fact that Stegall was at the distillery only in his official capacity, that he had personal knowledge, knowledge as an individual, of what was being done at the distillery; that is to say, the contention is he saw as an individual, notwithstanding his presence as an official. Is this contention sound? That is the question for determination here.

Section 3167, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2058), is as follows:

"That it shall be unlawful for any collector, deputy collector, agent, clerk, or other officer or employé of the United States, to divulge or to make known in any manner whatever not provided by law to any person the operations, style of work or apparatus of any manufacturer or producer visited by him in this discharge of his official duties, or the amount or source of income, profits, losses, expenditures, or any particulars thereof, set forth or disclosed in any

income return by any person or corporation, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof, to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or to publish in any manner whatever not provided by law, any income return or any part thereof of the amount or source of income, profits, losses, or expenditures appearing in any income return; and any offense against the foregoing provision shall be a misdemeanor and be punished by a fine not exceeding $1,000.00 or by imprisonment not exceeding one year, or both, at the discretion of the court; and if the offender be an officer or employé of the United States, he shall be dismissed from office and be incapable thereafter of holding any office under the government."

In addition to this statute, certain rules and regulations have been promulgated by the Treasury Department. These rules and regulations have been made pursuant to the statutes. The following statutes of the United States are pertinent to this question, as follows:

Rev. St. U. S. § 161 (U. S. Comp. St. 1901, p. 80): "The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers and property appertaining to it."

Rev. St. U. S. § 251 (U. S. Comp. St. 1901, p. 138): "The Secretary of the Treasury shall make and issue from time to time, such instructions and regulations to the several collectors, receivers, depositaries, officers, and others who may receive treasury notes, United States notes or other securities of the United States, or who may be in any way engaged or employed in the preparation and issue of the same, as he shall deem best calculated to promote the public convenience and security, and to protect the United States, as well as individuals, from fraud or loss; he shall prescribe forms of entries, oaths, bonds, and other papers, and rules and regulations, not inconsistent with law, to be used under and in the execution and enforcement of the various provisions of law relating to raising revenue from imports, or to duties on imports, or to warehousing; he shall give such directions to collectors and prescribe such rules and forms to be observed by them as may be necessary for the proper execution of the law; he shall also prescribe the forms of the annual statements to be submitted to Congress by him showing the actual state of commerce and navigation between the state and foreign countries; or otherwise between the collection districts of the United States, in each year."

Rev. St. U. S. § 3215 (U. S. Comp. St. 1901, p. 2084): "It shall be the duty of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to establish such regulations not inconsistent with law, for the observance of revenue officers, district attorneys, and marshals, respecting suits arising under the internal revenue laws in which the United States is a party, as may be deemed necessary for the just responsibility of those officers and the prompt collection of all revenues and debts due and accruing to the United States under such laws."

In pursuance of the foregoing statutes of the United States, rules and regulations were issued by the Treasury Department, as follows: "Treasury Department, Office of Commissioner of Internal Revenue. "Washington, D. C., April 15, 1898. "The following regulations are issued as supplementary to the instructions and suggestions contained on pages 41 and 42 of the Regulations, series 7, No. 12, Revised, August 3rd, 1896:

"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 prohibited 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 ap pear 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 purpose of raising revenue for the United States; and there is no provision of law authorizing the sending out of these records, or of any copies thereof, for use against the special-tax payers in cases not arising under the laws of the United States. The giving out of such records, or any copies thereof, by a collector in such cases is held to be contrary to public policy and not to be permitted.

"As to any other records than those relating to special-tax payers, collectors are 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 court shall have been obtained, collectors are directed to carefully prepare a copy of the record or document containing the information 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 make it necessary to decline, in the interest of the public service, to furnish them such copy. N. B. Scott, Commissioner.

"Approved: L. J. Gage, Secretary of the Treasury."

These rules and regulations were referred to and discussed, and held to be valid and reasonable in the case of Boske v. Comingore, 177 U. S. 459, 20 Sup. Ct. 701, 44 L. Ed. 846.

After this, the following regulation was issued:

"Treasury Department, Office of the Commissioner of Internal Revenue. "Washington, D. C., October 10, 1900. "To Collectors of Internal Revenue, Revenue Agents, and Subordinate Officers of Internal Revenue:

"Referring to the frequent requests for information concerning the public records relating to internal revenue taxes and internal revenue taxpayers, collectors of internal revenue are advised as follows:

"First: Information contained in the reports of taxpayers and the records of collectors of internal revenue is obtained by virtue of law, and with the exception of such information as is contained in record No. ten, must not be disclosed to the public, nor to any officer of any department of the government, nor to any person except of the Treasury or the authorized agents of this bureau and the Secretary of the Treasury or upon his order, without instruction from the Commissioner of Internal Revenue.

"Second: Where information concerning such records is called for, collectors will under no circumstances whatever comply with such request until they shall have communicated with the commissioner of internal revenue and received instructions concerning the same, except where the request is from the Secretary of the Treasury, in which case the request will be complied with at once without communicating with the Commissioner of Internal Revenue.

175 F.-52

"Collectors and revenue agents will acknowledge receipt of this circular and supply the employés under their supervision with a copy of the same. They will see that the instructions contained therein are complied with.

"Robert Williams, Jr., Acting Commissioner."

Subsequently the following regulations were promulgated:

"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 prohibited 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 subpœnas shall have been served upon them, they will ap‐ pear 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. They will decline to testify as to facts contained in the records, or coming to their knowledge in their official capacity; and this prohibition is hereby extended to include also internal revenue storekeepers and gaugers, and agents.

"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 purpose of raising revenue for the United States; and there is no provision of law authorizing the sending out of these records, or of any copies thereof, for use against the special-tax payers in cases not arising under the laws of the United States. The giving out of such records, or any copies thereof, by a collector in such cases, is held to be contrary to public policy and not to be permitted.

"As to any other records than those relating to special-tax payers, collectors are 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 No. 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 court shall have been obtained, collectors are directed to carefully prepare a copy of the record or document containing the information 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 make it necessary to decline, in the interest of the public service, to furnish such copy."

These regulations were issued by John W. Yerkes, Commissioner, and approved by Leslie M. Shaw, Secretary of the Treasury, as appears on the regulations.

Subsequently, certain regulations were issued, to which attention has been called, with reference to retail liquor dealers; but these are not material here.

It may be proper to inquire, first, whether these regulations are authorized by law, and in accordance with law. It is fully settled in many cases that the regulations issued by the Secretary of the Treasury with reference to the question of internal revenue, and for the government of the officers of the Revenue Department, have the force

and effect of law, and are as binding as if incorporated in the statute law of the United States. United States v. Barrows, 1 Abb. (U. S.) 351, 24 Fed. Cas. No. 14,529; United States v. Hutton, 10 Ben. (U. S.) 268, 26 Fed. Cas. No. 15,433; In re Huttman (D. C.) 70 Fed. 699; In re Weeks (D. C.) 82 Fed. 729; United States ex rel. Flynn v. Fuellhart (C. C.) 106 Fed. 911; In re Lamberton (D. C.) 124 Fed. 446; Boske v. Comingore, supra; Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538; Gratiot v. United States, 4 How. 80, 11 L. Ed. 884.

In concluding the opinion in Boske v. Comingore, supra, Mr. Justice Harlan says, in reference to the promulgation of regulations by the Secretary of the Treasury for collectors of internal revenue:

"In determining whether the regulations promulgated by him are consistent with law, we must apply the rule of decision which controls when an act of Congress is assailed as not being within the powers conferred upon it by the Constitution; that is to say, a regulation adopted under section 161 of the Revised Statutes should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law. Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except, to hold that the Secretary has exceeded his authority, and employed means that are not at all appropriate to the end specified in the act of Congress."

I do not understand it to be contended here, however, that these regulations are inconsistent with law. No attack is made in argument upon these regulations. What is insisted strongly and earnestly is that the individual may be separated, as it were, from the official. What he discovers by the use of his senses, what he sees with his eyes, it is urged, he may testify to; that he knows it as an individual, although as an official he was on the spot, and acting in the discharge of his duty as such official.

In the last regulation referred to (No. 12, of April 18, 1904) it will be perceived that, among other things, it is said:

"They will decline to testify as to facts contained in the records, or coming to their knowledge in their official capacity; and this prohibition is hereby extended to include also internal revenue storekeepers and gaugers and agents."

Assuming this 'regulation to be within the authority of the Secretary of the Treasury under the statute, and thereby becoming law and controlling on storekeepers and gaugers, can a storekeeper and gauger testify to facts he ascertains at a distillery, when he is there only in his capacity as a storekeeper and gauger?

The District Courts have passed on similar questions on several occasions. In re Huttman, supra, was decided by Judge Williams in the District Court of Kansas. This was a habeas corpus case; Huttman being a deputy collector of internal revenue, and having been committed for contempt for declining to answer certain questions propounded to him in the state court. Among other things in the opinion by Judge Williams, this is said:

"In this case it seems that an officer of the government, acting in conformity with or under the revenue laws of the United States, was called upon to testify in a state court with reference to something that transpired in his office between him and a citizen in relation to the enforcement of the revenue laws. Congress has given to the commissioner of internal revenue, without qualification, the power to make and enforce upon his subordinate officers all reason