UNITED STATES'll. MITCHELL.
this extent. But he suffered no disadvantage. He did nothing whatever on the faith.of deposit, and has no just oause to complain of its payment to the plaintiff, if it is his. We have nothing to do, therefore, but to decide whether the money, as between him and I,ewis & Sons, is his. Mr. Lewis was his trustee for the $2,000-holding it for safe-keeping. He deposited it in bank, presumably in pursuance of his duty, though in his firm's name. It remained there until the bank closed, (a very few days later) and was then delivered to the receiver with other funds of the bank. Possibly it might be contended that the terms of the agreement do not render it clear that the money remained in the bank, though Lewis & Sons' deposits at no time thereafter fell below $2,000. No such suggestion, however, has been made. On the contrary the case was presented by both parties on the hypoth· esis that the money did continue in the bank; and this is manifestly what the agreement intended to express. Two thousand dollars remained there continuously; and in the very short period which elapsed between the deposit and the bank's failure, it is improbable that many changes occurred in the amount. The fact however if contested, might not be important. Money bears no ear· mark, and it is sufficient in such cases to trace the fund, as this is traced. The general subject has been so frequently and so fully discussed by the courts that nothing can profitably be added to what has been said. In the following cases it has been discussed with reference to the varied circumstances which they present: Frazier v. Bank, 8 Watts & S. 18; Bank v. Jones, 42 Pa. St. 536; Stair v. Bank, 55 Pa. St. 364; Bank v. King, 57 Pa. St. 202. Some English cases (suits at law) among them Sims v. Bond, 5 Barn. & Ado!. 389, and Tassell v. Oooper, 9 C. B. 509, seem on first blush to be inharmonious with the foregoing authorities; but this arises from the fact that in England equity was not administered in common-law courts or through common-law forms, at the time; otherwise the apparent confliot would not exist. In Pennell v. Deffell, 23 Eng. Law & Eq. 460, the rule as administered there by chancery is stated and applied. It does not differ from that applied in the Pennsylvania cases cited. Without inquiring whether the plaintiff's right to follow and recover his property may be enforced by an action at law in this court, it is sufficient under the agreement as we have seen, that he certainly may do so in equity-in other words it is sufficient to find that the property is his. Judgment will therefore be entered for the plaintiff.
UNITED STATES, v. MITCHELL.
(District Court, N. D. Ohio, W. D.
December 12, 1893.)
CENSus-REFUSAL TO AKsWER QUESTIONS.,...CORPORATE OFFICERS.
The provision of tIle act of July 6, 1892, imposIng a penalty for refusal to answer questions· upon officers of eorporations engaged in pro-
duc1;l.ve,: lpdustry, from whIch from whom answers "are herein r& <i,ulre<i,"Is ineffective, because there is no provision, in that or any other act,requfi'lng such corporations or their to answer the questions.
At La,w. Indictment of Jethro G. for refusing to answer questions put to him by a census omcial. On demurrer to the indictment. Sustained, and indictment quashed. Allan T. Brinsmade, U. S. Dist. Atty. Frank Hurd and Joseph Oummings, for defendant. RICKS, District Judge. The defendant is the treasurer of the Mitchell & Rowland. Lumber Oompany, a corporation organized under thp laws of Ohio, and on the 20th day of April, 1893, engaged in "a productive industry," to wit, the manufacture of lumber and lath, in this di'strict and division, and in the first supervisor's districtof Ohio. :J;J:e is indicted an act of congress approved July 6, 1892, which is "An' 31ctamendatory of an act entitled 'An act to provide for the taking of the eleventh census,'" for refusing and failing to make answers to certain questions propounded to him by David A. Alexander, a special agent of the census office, who wa,s duly employed, appointed, commissioned, and sworn to obtain information in the first supervisor's district of Ohio from corporations engaged in any. productive industry, which information was called for and specified in a special schedule, No.5, approved by the secretary of the interior, in aceordanc,e with the provisions of the act of congress named. The questions which the defendant so refused t()answer are set forth in the indictml;nt as follows: A question as to the name of the corporation of which said defendant was then and there the treasurer; a question as to ,when the establishment of which defendant was treasurer commenced operations; a question as to the kind of goods manufactured by said corpomtion; a question as to the capital invest.ed in logging, in mill plant, and in live capitol; a question as to labor and wages; a question as to material used; a question as to months in operation; a question as to the number of hours in the ordinary day of labor; a question as to the power used in manufacture; a question as to the transportation of logs, how transported to mill, quantity transported during rtJhe year, cost bf transportation, miles of logging railway used; a question as to number of acres of timbered land, or standing timber, owned by said corporation; a question as to what sawing machinery the said corporation possessed; a question as to whether .colored persons had oapital invested in the establishment of which the defendant was treasurer. These are the lll"aterial "averments of the indictment, sufficiently set forth for the purpose of considering the questions now involved. The first defense interposed is that the acts of congress upon which the indictment is predicated do not make it an offense for the president, or other officers named, of a corporation or firm engaged in any productive industry, to refuse to answer the inquiries contained in the schedules prepared by the census bureau, and propounded by the representativelil. of the census superintend-
UNITED STATES V. MITCHELL.
ent. Congress unquestionably intended to impose upon such officers the duty to answer such questions, and to prescribe a penalty for a refusal so to do. Do the acts impose such duty? The act of March 3, 1879, (1 Supp. Rev. St. p. 471,) under which the census for 1880 was taken, in section 14, required that the heads of families, or, in their absence, any other member or agent, should, if thereto requested by the census enumerator, etc., "render a true account of every person belonging to such family, in the various particulars required by law," and provided a punishment for 'a refusal or failure to do so. The second paoograph of the same section provided "that every president, treasurer * * * or managing director of every corporation from which answers to any of the schedules provided for by this act are herein required, who shall, if thereto requested, * * * neglect or refuse to give true and complete answers to any inquiries authorized by this act * * · shall forfeit and pay," etc. This was the first provision of law that seemed to contemplate compulsory answers from corporations to questions propounded by enumerators or other officers of the census bureau. The first paragraph above quoted not only required the census enumerators to obtain from heads of families, or from their agents or representatives, the information required by law, but imposed a 'duty upon such persons to give the information required, with a penalty for failing or refusing so to do; but the blank forms and schedules furnished by the secretary of the interior to enumerators for a'Scertaining statistics and facts concerning products of industry provided only for such information as the persons interested voluntarily imparted. The second paragooph, as already quoted, provided both a penalty and punishment for officers of corporations "from which answers to any of the schedules provided for by this act are herein required," who shall, if thereto requested by the supervi'Sor, enumerator, etc., refuse or fail to answer any inquiries authorized, etc. Section 17 of the same act extended the scope of the schedules used in the tenth census, and provided that the superintendent of the census shall require and obtain from every railroad, express, telegraph, life insurance, and fire and marine insurance company the facts specifically set forth in the law as to the business of each of said kind of public or quasi public corporations. This' was the first provision of any legislwtive act authorizing a census to be taken, which contained a clause requiring the superintendent of census to obtain information of the character indicated from such corporations. In a note by the editor and compiler of the supplement (volume 1) to the Revised Statutes, referring to this oot, it is said:
"This act seems to supersede all the provisions of the Revised Statutes on the SUbject, retaining, by section 17, the schedules set forth In Rev. St.
The only provision of law in force prior to the 3Jct of March 3, 1879, above referred to, relating to the compulsory answers to the questions of census enumerators, was section 2191 of Revised Statutes, which provided:
more than twenty-one'ye!trll of age belonging to any famil! the absence of tne nead and other lIiemtiers 'oflin;vllUch family, then any tlgept of such family shall upon the. request of the' marBbal or his assistant, render a true account to the best of bis knowledge ofieVery per.son belonging to such family, in the various particulars required herein, anl'lthe tables hereto s,ubjoined; and for any refusal whatever to answer either of. the inq\l.iries authorized by law, such persons shall be liable to a penalty of" thirty dollars, to be sued for and recovered, in an action by the assistant marshal for the use of the United States."
,p. !Ul:r, llubdivision and in
'rhiIJprovision of the statutes was substantially re,enacted in the of section 14 of the act of March 3,1879, and the second provision, as before quoted, was no doubt intended to provide a'punishment for officers of corporations who refuse to comply with the law. The next legislation, in order of time, was the act of March 1, 1889,(25 Stat. 760.) In that act the second paragl'aphOf ,section 14, last above referred to, is amended by the second panagnaph of sectiM 15, and, extended as to the officers to be included,and repealing the penalty part of the punishment, and extending thelatter to tineal' imprisonment. This paragraph of section 15 was again amended by the act of July 6, 1892, (27 Stat. t:l6,) whioh,' reads as follows:
"An act lUllendatory of an act entitled 'An act to provide for the taking of the ebWenth census.' "Be' it' ertacted by the senate and house of representatives of the United States otAmerica in congress assembled, that sections 15 and 17 of the act entitled 'AJ,l act to provide .for taking the eleventh and subsequent censuses; 1, 1889, Qe and the same are hereby amended so that the approved, superintendent of census 'shaU be required to obtain from every incorporated andAluincorporated company, firm, association, or person engaged in any prodUctive industry, the information called for and specified in general and special schedules heretotoreapproved, or to be. hereafter approved by the secretary the interior. A,n4 every president, treasurer, secretary, agent, directol.' or'other officer otevery corpQration engaged in such productive industry,' 'and every person, firIIl,manager, or agent of unincorporated companies, and members of firms, associations or individuals likewise engaged in such industry from, whicb 01.' from whom answel.'s to any of the inquiries con1il.ined in the said scbedules are herein reqUired, who shall if thereto requested by the superintendent of census, supervisor, enumerator, or 'or· each or any' of' them, wilfully or refuse to give true special and complete answers to any inquiry or inqUiries contained in the said schedules, or sb;iill wilfully give 1I11se, information in respect thereto, shall be and on conviction thereof shall be fined in a deemed guiltyo(a sum not exceeding ten tbousand dollars, to Which may be added inprisonment for a period not exceeding one year, and all acts or parts of acts in con:tl.ict are hereby repealed."
.Tbese acts ,clearly indicate that it was the intent of con· gress to impose a duty upon the officers of corporations engaged in any productive industry to answer such questions as the schedules contain, <>rsucb as might be propounded by the enumerators, special agents, or other persons duly authorized by the superintendent of census to gather the information desired. But a careful exam.· inwtion of all the acts published impels me to the conclusion that no such duty was imposed. The act of July 6, 1892, was e:vidently passed upon the assumption, that the answers to inquiries "herein required" were to be compulsory because of some duty imposed by
som" other section. The language in all the acts cited clearly implies that, in some other sections of the act, provisions were contained which required the corporations and firms named to answer the questions contained in the schedule. The offense contemplated by the act Ul refusing to answer questions propounded in the printed schedules, which it WUiS assumed the law required to be answered, and which the officer requested to be answered; but, as before stated, no such duty was imposed by either of the acts. A duty of that character is impoJ;led by a distinct provision of law upon the head ofa family, or the other persons required to make answer in his absence, and the requirement as to them is clearly defined to be to "render a true accqunt, to the best of his or her knowledge, of every person belonging to such family, in the various particulars required by law." By section 17 of the act of. March 3, 1879, as amended by the act of March 1, 1889, the duty is imposed upon the superintendent of census to "require and obtain" froIn every railroad, telegraph, ex· press and insumnce company described in that act, the information therein designated. Under the act upon which this indictment is based, the superintendent of the census is "required to obtain · · · the infol'Dl!ation called for and specified in the schedules, · · * to be approved by the secretary of the interior." Here the superintendent is required to obtain information "from firms engaged in productive industries." In the case of the milroad, telegraph, and other corporations covered by the act of 1879, the superintendent is directed to "require from every railroad corpo· ration the following facts." In the one case, the superintendent is required to obtain information; in the other, the railroad companies are 'required to give information. In the one case, a duty is imposed upon the superintendent; in the other, it is imposed upon the corporation. But it may be said that congress manifestly intended to impose such a duty, and that it is clearly implied from the law. But this is a criminal proceeding, and, to confer jurisdiction upon the federal courts in such cases, an offense must be clearly defined and created by statute. We have no jurisdiction overoany other offenses. In the case of U. S. v. Hudson, 7 Cranch, 32, Mr. Justice Johnson, speaking for the supreme court, said: "T,he legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense." In U. S. v. Lancaster, 2 McLean, 431, the court declare<).: "Nothing can be punished, under thE laws of the United States, which is not made criminal by statute." This limits the jurisdiction of the federal courts to statutory offenses.. We cannot the law to cover a failure to do an act required to be done only by implication of law. '1'0 make the f,ailure or refusal to perform a duty a criminal offense cognizabl in this court, the act of congress must clearly define that duty oand declare the punishment. That has hot been done. The next objection to the indictment is that "the act of congress under which' said pretended indictment is founded is unconstitutional and void, for the reason that congress had no constitutional
authorityto'p8.sssaid aet." The 'authority forsu.chlegislation is based on article 1, §2, par. 3, of the constitution, which provides:
"Represililtilflfes .and direct taxes shall be apportioned among the several states' Whtch may be included in the Union according to their respective numbeJ;$. ... .>If .... ,The actual enumeration shall be made within three years after thetirst meeting of congress and within every subsequent term of ten years, in such)nanner as they shall by law direct."
Artiele 1, § 9, par. 4, provides:
"No capitation or other direct tax shall be laid unless in proportion to the census of enumeration hereinbefore directed to be taken."
is contended that the object of the enumeration is to ascertain the numbers so as to establish a basis for representative apportionment and for direct taxes. Direct. taxes are either capitation taxes or land taxes, and, when by congress, it fixes so much as lies athopg the different states according to their numbers, not according, tc;> theM" property or wealt4ri so representation is based not upon or wealth, but upon numbers. Therefore, to accomplish the oqject in view, it is not necessary to inquire as to property, or business. Chief Justice M'arshall in Loughborough v.131ake, 5 Wheat. 317, declared:
''The direct and declared object of the census is to furnish' a standard by which represelltatlves and direct .taxes may be apportioned among the several states which may. be included in this Union."
It is further contended that congress has only such legislative powers as are expressly conferred, and it cannot be claimed that a power to tak,e an enumeration for the purposes above declared confers, by implication, a power to ascertain the value of property or the methods of using it. . It is further earnestly contended that the legislation hereinbefore considered,seeking a compulsory answer to inquiries about business' and property, is violative of certain provisions of the bill of 'rights and the constitution. Article 4 of the pill of rights pro· vides:
"Thel'ight of the people to be secure in their persons, houses, papers and effects against unreasonable searches and selztu'es shall not be violated, and no warrants shall iSSue but upon probable cause:' etc.
under the act of congress, from the defendant, of his books and papers, that. he might search them for information, would be a violation of this provision' of the bill of rights,and that there would be no difference between surch a demand and the requirement to compel him to furnish the same information at his own expense, uPQn penalty of fine or imprisonment for failure so to do. In either . case, the books and papers of the citizen are searched and seized. Article 5 of the bill of rights provides:
"Nor shall any person be deprived of life, libertY or property without due process of law, .nor shall private property be taken without just compensation."
'. It is urged that the demand of a special agent of the census bu·
These reasons are urged with great force against the validity of this legislation.
tJN1TED l!lTATES fl. KITCHELL.
In view of the condusion reached under the first objection to this indictment, I might possibly pasa this grayer objection without tut·ther consideration of the claims of counsel, as above stated. But as future legislation will be necessary to remedy the defect found in exisrting statutes, should this opinion be affirmed by the supreme court, it may not be amiss to suggest that there may be a limit to the power of congress to compel a citizen to disclose information concerning his business under·takings, and the manner in which are carried on. This limit IllU:;t relate, not only to the kind of information he may properly refuse to disclose, because it may be equivalent to the appropri'ation of private property for public use without just compensation, but also to the extent of tile information required, as well as to the time within which it shall be given. Certain kinds of information v·aluable to the public, and useful to the legislative branches of the government as the basis for proper laws, have heretofore been voluntarily given, and may propel'1y be required from the citizen, when it is not of property value, or when the collection, compilation, and preparation thereof does not impose great expense and labor for which compensation is not provided. It is not infrequent, however, that answers to questions proponnded in some schedules,if fully and properly prepared, involve the collection and compilation of facts t.hat [-equire the labor of a large force of clerks for days and weeks, entailing great expense and embarrassment to the ordinary business of the citizen. Is it within the power of congress to make such answers compulsory, and require the citizen to neglect his usual business, with loss, and to prepare this information ata great personal expense, without proper compensation? Or if a citiZen, by his long experience in a specialline of business, and by his superior organizing and administrative ability, has so systematized it that he can carry it on at 8. much less expense and with greater facility than others, is it right to compel him to disclose the information so acquired, and thereby open to his rivals in trade the methods by which he has been able to Qutstrip them in the sharp competition for business? Is not the system so established, and the knowledge so acquired, as much a property right to him as the land and shop in which he conducts his business? and can he be compelled to p:ut with the former without due compensation more justly than with the latter? The zeal with which such information is sometimes solicited to maint.ain favorite theories of public officials, or to afford the basis for discussing economical questions, often leads to excI'Sl';('S, and imposes upon the citizen duties for which no just compensation is afforded, either in money, or in his proportion of the reward of the good results to follow to the public. As bef()re stated, when such information is required as the basis for proper legislation or the just enforcement of the public laws, the power to compel its disclosure may exist, and, if unusual expense attends its preparation, proper remuneration to the citizen can be made; but the suggestion that information having a property value may be demanded, which the citizen may not be obliged to impart without due compensation, so earnestly pressed by the
this, a tor consideration by. the future legislatiol;l! ,:l)e,neededtp, enforce deWands by the census I, ,Of i,course, are not intended. to apply to the, pf,pongres," to EUl'swers to questions, propounded to ,14e ,oftlcerscol,railroaqs, telegraph, and insurance companies, Of ,a public: character, over the business methods of which ,th,ei power :may beaaserted. As to such corporations" the,publi$l good requires that :wholesome and strict supervision !ilhould" b e 'exercis!,!d,l8J1d aJItl1e information needep as the, l}nd contI;'ol should be produced when quired.; n1n,ivittW of the conclusion it is not necessary to objectioJ;lcs, urged to· the indictmept. The', will be sustained 'Ilpon the first propositiop considered, motion to. quash is allowed. ··
UNITED ST.A!1'ES' v. SYKES. (I1fsV;lct Court,W. D. NorthOarollna. October 7, 1893.)
OFFICE .q<D:OFFICEl,t-ApPOINTMENT--DEPUTY COLLECTOR.
A deputy collector is authorizeq., to .act as such when his commission has been signed and placed ,in the mall. an.d he Is notified thereof by , telegram., '
When a: person commits a misdemeanor under the Instructions of an, other, It Jl'!: only necess/(17I, 'in order to .impJlcate the latter, that his Inwith. ': ::s1:l'UctloDl'!, Rtl;!'je
D,JS"T,lJ,.l1,lll. P,SPIRITS-,,J],,,L.A,WE:UL. R,E,,l(OV,.u.-AIDING AND A,nETTI,NG. " 'The tacti 'that the statuM' makes the' lIJdlng and abetting of' In '('the'remotal of illicit spilflts il.! ilistinct' offense does not prevent a person "so;aiding':and abetting 'from being' as a principal In 'the re, In misdemeanors liable i\.S. prip.clpills., , ' '
'One W,J;IO, eertalnc8:Sks of whisky are without revenue "litafti)Js, obstrn'Cts' an 'otllcer',atteinptfngto seize the' same, in order that JI'opportunity :mt}y:beg!veP.tor another to escape therewlth,is guilty , :der tile, " ,i ,
',' ''the tUle,lPat'1\ GOAvlcHon be ):lad on, the :, '1;iistlmony of an, accomplice ,applies ,WhenwHnesselS Introduced by de'1rendant confess:themsel'V'es to be contederates In the crime. ' Rroof IIlelllll sales, of." whisky occur ,on, B tnan's premises ' "IlM about his a prlllllWlption of li.galnst, him,and plil'Ges the burden ,<in him)() Ilhow tpat the acts were With()ut bis)mowl,"edge'or approval;' he was powerless to prevent'them.,
6. ' S:NME";'; PttESUMPTIONS-"BURDBN'OF 'PROOF.
t.,La, ,w,"", Indi,ct,m.en,tOiL,.G,"elY;,,Jlkes for the l'emoving orsIjl1ritUQW'.)1.quors."yerdict of ·.£Jlement Manley and iA. Oovington, for the UJIltted States. lJatnes T. Morebead an Jas. E. B0yd" for "
for the part of