IN RE WEEKS.
jury are at the bar, is that the court may correct the error or omission pointed out. The exception for failing to give this entire series of requests could not serve this purpose, as it did not advise the court of any particular omission. Propositions Nos. 2, 5, 6, 7, and 8 presented different phases of the question of the presumption as to the proper inspection of cars and machinery coming upon one road from another, and of the discharge of duty by inspectors. Each of these requests was faulty in totally ignoring the Ohio statute of April 2, 1890, the second section of which provides that it shall be unlawful for any railroad company to knowingly or negligently use or operate any defective car, and that, in actions by an employe for an injury by reason of such defect, the company shall be deemed to have had knowledge of such defect, and that this presumption shall stand as prima facie evidence of negligence on the part of the company. 87 Ohio Laws, p. 149. This act was construed by the supreme court of Ohio in Railway Co. v. Erick, 51 Ohio St. 146, 37 N. E. 128, the court saying:
"The presumption of knowledge of the defect before and at the time of the Injury Is, by this statute, chargeable to the company; and this statutory presumption cannot be overcome by proof of facts which only raise a presumption that the company did not have such knowledge. Competent and careful inspectors are presumed to properly inspect the cars and their attachments, but such presumption would not overcome the statutory presumption of knowledge of defects before and at the time of the injury. It would take an actual and proper inspection, or its equivalent, to overcome the statutory presumption of knowledge of such defects. It will be noticed that this section of the statute also provides that, In the trial of a personal injury case against a raiiroad company, the fact of such defect In its cars or their attachments shall be prima facie evidence of negligence on the part of such corporation. It will be noticed that It is not the servants or such as are fellow servants that are deemed guilty of negligence, but the corporation itself. In such case, when the plaintiff has shown that he was injured, and that such Injury was caused by a defect in the cars or their appliances, the statute raises the presumption of negligence on part of the company, and the burden of proof is thrown upon the company to overcome the prima facie case of negligence thus made by the statute."
There was no direct evidence that this car was ever inspected by this company, and the question as to whether such an inspection was ever in fact made by the plaintiff in error was submitted to the jury, who found that no inspection was made when received by the defendant company. The statutory presumption of negligence was therefore not overcome, and the requests we have referred to were properly refused, as altogether ignoring this presumption. The judgment must be affirmed.
In re WEEKS. (District Court, D. Vermont. October 6, 1897.)
INTERNAl, RIWENUE-COLLECTORS AS STATE LIQUOR LAWS.
WITNESSES IN PROSECUTIONS UNDER
An instruction issued by the commissioner of internal revenue, directing collectors and their deputies to refuse to produce, In criminal prosecutions of liquor dealers in the state courts, the returns made to the collectors, or the lists showing payments of federal liquor taxes, or to give information derived from official sources as to the fact of such payments, is Valid,
82 FEDERAL REPORTER.
and in accordance with the federal laws. Rev. St. U. S. §§ 251, 321, 32383240,3244.
A state has no right to federal Instruments of I>urely federal character for proof, unless they are left within Its reach.
This was a proceedingin habeas corpus in behalf of Arthur L. Weeks, who was imprisoned under a commitment for contempt by a state court of Vel'IIlont for refusal to produce evidence in relation to the payment of United States liquor taxes. John H. Senter, for relator. Fred A. Howland, for the State of Vermont. WHEELER, District Judge. The laws of the United States provide that the secretary of the treasury shall prescribe "rules and regulations not inconsistent with law, to be used under and in the execution and enforcement of the various provisions of the internal revenue laws," and "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" (Rev. St. § 251); that "the commissioner of internal revenue, under the direction of the secretary of the treasury, shall have general superintendence of the assessment and collection of all duties and taxes, now or hereafter imposed by any law providing internal re-venue, and shall prepare and distribute all the instructions, regula· tions, directions, forms, blanks, stamps, and other matters pertaining to the assessment and collection of internal revenue" (section 821); for a special tax on, among others, retail dealers in liquors (section 3244); to be paid by stamps (section 3238); that collectors shall place and keep in their offices, for public inspection, an alphabetical list of the names of all persons who have paid such special taxes within their districts, with the time, business, and place of business for which such taxes have been paid (section 3240); that every person engaged in such business shall place and keep conspicuously in his establishment or place of business all stamps denoting the payment of such tax (section 3239). The laws of the state provide for punishing commOIf liquor sellers, and ·for abating and enjoining places of sale as common nuisances, and that "the payment of the United States special tax as a liquor seller shall be held to be prima facie evidence that the person paying the same is a common seller, and the premises so kept by him are a common nuisance." V. S. § 4476. The collector's office for this district is kept at Portsmouth, N. H. The commissioner of internal revenue, presumably with approval of the secretary of the treasury, issued on March 31, 1888, instructions to tbis collector, 'containing, among others, these, which have not been modified, !;Iut rather extended:
"A special taxpayer Is required, under severe pains and penalties, to make his return under oath. The information is extorted from him. It is largely in fhe nature of a privileged communication, which he is required to make to the revenue officer, for revenue purposes, and for those alone. It is not believed the courts will require a disclosure of evidence thus obtained for use jn a criminal prosecution of him who furnished it. It is respectfully insisted that neither the return itself, nor Information derived from It, soould be admitted on trial, especially if objected to by the accused."
IN BE WEEKS.
In the case of Gardner v. Anderson (U. S. Oil'. ct. D. Md., before Judges Bond and Giles) 22 Int. Rev. Rec. 41, Fed. Oas. No. 5,220, although the point involved was as to official communications between officers of the government, the court made a remark which is applicable to the question now under cOIlEideration, viz.:
"'That the communication was in Its nature an official communication, relating to public business, which it was sought to prove by means of a witness whose only knowledge of it was derived from his official employment, which was contrary to public policy, and not to be permitted.' You and your deputies should, of course, respond to the subpcenas of the court, but you should respectfully decline to produce either the alphabetical list or the returns on Form 11," 34 Int. Rev. Rec. 261.
The relator is deputy collector in Vermont, and was summoned to attend as a witness at the trials of several persons in a court of this state for selling liquor, and to produce and exhibit all books and papers in his possession showing, or tending to show, that the respondents had paid any special tax for the sale of liquors in 1896 or 1897 at Montpelier. These instructions had been furnished to him by his superior for his guidance. In the trial of one respondent he was asked whether the respondent had ever paid him any money for the purpose of obtaining a retail liquor dealer's special tax stamp, and answered that he could not remember, but supposed he had means of ascertaining; whereupon he was asked to ascertain and state the fact, which he declined to do, because his means of knowledge of it had come to him solely in his official capacity, and of the instructions from the treasury and internal revenue department, and for this refusal he was adjudged guilty of contempt. This writ is brought for relief from commitment on this judgment. That the national and state governments have each a separate jurisdiction for their operations, although within the same territory, seems to be well and clearly shown in many cases in the supreme court of the United States whose authority must be paramount; and especially by In re Neagle, 135 U. S. 1, 10 Sup. at. 658, where the relator was released from a charge of murder in a Btate court for a killing done in protecting a United States judge traveling on his official business. This killing was held to be as much without the jurisdiction, although within the limits, of the state, as if it had been done without its limits. The federal government could doubtless lay these internal taxes upon liquor dealers, and provide for their collection by collectors and deputies, or otherwise, and by methods, open or secret, accessible or inaccessible, or accessible only in prescribed ways, for evidence in its own or the state courts. It did provide that the fact of the payment of the tax should be open to all, and that proof of it should be accessible to all by examination of the authentic alphabetical list of the taxpayers and their places of business, for public inspection, in collectors' offices, and by the stamps conspicuously to be kept by sellers in the places of business. The provision of these open and convenient methods of proof of this fact somewhat excludes the use of any government agencies otherwise for that purpose. The federal law is to be resorted to for ascertaining whether the instructions or directions are contrary to law; and they do Dot appear to be in any respect opposed to it, but rather to be in accord-
ance with it. The relator, as federal officer, was in duty bound to obey them. This fact of payment of the special tax, of which the federal law provides such convenient proof, is exactly what the state .statute makes evidence of being a common seller, and of keeping a nuisance. When the state lays hold of a federal officer, and his do· ings as such, for proof contrary to his duty in respect to the tax, in· stead of resorting to the evidence provided by that government, it interferes with the lawful operations of the federal government in lay ing and collecting its taxes. 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. This is somewhat as if a federal district attorney or grand juror should be im· prisoned to compel disclosure of proceedings before the grand jury, which might be very material in a trial elsewhere. This disclosure would be contrary to legal duty, as that would be, and such imprison· ment would seem to be quite clearly contrary to the laws of the Unit· ed States. This case differs from In re Hirsch, 74 Fed. 928, in respect to the proof required, and the regulations, instructions, and directions shown, where the relator was remanded, and is similar to In re Huttman, 70 Fed. 699, where the relator was discharged.
AMERICAN STREET CAR ADVER'l'ISING CO. v. NEWTON ST. RY. CO. et al. (Circuit Court, D. Massachusetts. August 6, 1897.) No. 770. 1. The unnecessary enumeration, as elements of a combination, of parts which are necessary to the operation of a device, but which may be under· stood and can be supplied by those ordinarily skilled in the art, does not. under the circumstances of this case, make the claim one for an unpatentable aggregation.
The Randall patent, No. 380,696, for an advertising rack to be used in street cars, held, on the proofs submitted to the court, to cover a novel, useful, and patentable invention, and also held infringed.
This was a suit in equity by the American Street Car Advertising Oompany against the Newton Street·Railway Company and others, for alleged infringement of letters patent No. 380,696, issued April 10, 1888, to Isaac H. Randall, for an advertising rack. William Quinby and Edward S. Beach, for complainant. Chas. G. Coe, for defendants. PUTNAM, Circuit Judge. As the record is brought to us, it pre· sents a close case. What the respondents have done was merely as follows: They constructed street·railway cars, built where the sides