In re Hirsch

• Decision Date: 01 July 1896
• Court: U.S. District Court — District of Connecticut
• Parties: In re HIRSCH.

74 F. 928

In re HIRSCH.

United States Circuit Court, D. Connecticut.

July 1, 1896

Chas W. Comstock, U.S. Dist. Atty., for petitioner.

John L Hunter, contra.

SHIPMAN Circuit Judge.

The petitioner, Heyman J. Hirsch, filed, on May 14, 1896, in the circuit court of the United States for the district of Connecticut, a petition, addressed to one of the judges of the circuit court, for a writ of habeas corpus to the sheriff of the county of Windham, in the state of Connecticut. The petition was signed by the petitioner, and was verified by his oath. A writ of habeas corpus was issued accordingly, the sheriff brought the petitioner into court, and he was admitted to bail. The sheriff thereafter made his return to the writ, stating, as the cause of the petitioner's detention and imprisonment, that he was committed to the Windham county jail by virtue of a mittimus, dated May 13 1896, a copy of which was annexed to the return, and issued by authority of the superior court of the state of Connecticut, in and for the county of Windham, and then in session.

Testimony having been offered in support both of the petition and of the sheriff's return, the following facts were ascertained: On May 11, 1896, a criminal information was pending and on the eve of trial in the superior court of the state of Connecticut for the county of Windham, against Stephen H. Cole, of Putnam, in said county, for keeping intoxicating liquors on a named day, with intent to sell the same unlawfully, in said Putnam, and without a license to sell the same unlawfully, in said Putnam, and without a license therefor; the sale of intoxicating liquors not being lawful or permitted in said town, at said time, by the statutes of the state of Connecticut. On said day a subpoena duces tecum was issued by the proper authority who was duly empowered to issue the same, directed to H. J. Hirsch, deputy United States internal revenue collector, residing in Norwich, in the county of New London, and commanding him to appear before said superior court on May 12th, to testify his knowledge in said criminal cause, and to bring with him any and all papers, applications, or books in his possession showing that said Cole had paid a tax to the United States or received a license from the United States for the sale in Putnam of spirituous or intoxicating liquor for the years 1895 and 1896, or any portion of said years. In accordance with the usages of the internal revenue department, a retail liquor dealer who desires to pay the special tax imposed by the statutes of the United States upon a person in that business makes a written return to the revenue collector in his district, which declares his intention to sell distilled spirits as a retailer for a specified time, and declares his payment of the tax; and it has been decided by the court of last resort in the state of Connecticut that such a return, with the payment of a tax thereon, is admissible evidence of an intent to sell intoxicating liquor, upon the trial of an information for an intent to sell unlawfully against the person who makes and signs the return. State v. Teahan, 50 Conn. 92. The states of Connecticut and Rhode Island constitute an internal revenue district, and Mr. John C. Byxbee has been, during the years 1895 and 1896, the collector for said district, with his main office in Hartford. The counties of New London and Windham, and a part of Tolland county, constitute a subdistrict, of which Heyman J. Hirsch is the deputy collector, his office being at Norwich, and to him the retail liquor dealers residing in his district make and have made the described returns, which are first forwarded to the Hartford office and then are returned and kept on file in the Norwich office. The subpoena having been duly served upon Hirsch on May 11 by a deputy sheriff for the county of New London, Hirsch appeared and became a witness before the court upon the trial of said information on May 13th, and informed the court that he had some of the papers called for in the subpoena; that the statement by Cole of his intention to sell intoxicating liquor in Putnam was, if made in his office; that he declined to produce any papers which showed anything on the part of Cole with relation to the declaration of his intention or the payment of a tax as a liquor dealer to the United States; and, upon being informed by the court that he must comply with the subpoena or be committed for contempt of court, refused to do so, upon the ground that he was acting under instructions. He was thereupon committed for contempt, and the mittimus truly recites that he had in his possession, in his office at Norwich, Conn., 'the papers, applications, and books referred to in the subpoena aforesaid, and some of them relative to the matter referred to and named in the subpoena, but neglected and refused, and still neglects and refuses, to produce said papers, applications, or books, * * * in obedience to the order of the court to produce the same, or stand committed until he shall have complied with said order.'

The petition for the writ was brought solely by virtue of section 753 of the Revised Statutes. The district attorney who brought the petition rightly deemed that section 643 was not applicable. Section 753 provides that the writ of habeas corpus, which the courts of the United States have power to issue, extends to a prisoner in jail, when he is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof. If the petitioner's refusal was not justified by a law of the United States, this court is without jurisdiction. He did not act, in his refusal, under an express statute of the United States, but under what is alleged to be a rule or regulation of the commissioner of internal revenue, and having the force of law.

Before considering the character of this rule or regulation, a brief recurrence to the principles or established usages respecting the production in court of official records, registers, or books kept for use by public officers, or detached documents of a public nature as evidence, may be desirable. Prof. Greenleaf, speaking of the admissibility of official books or registers, says, in substance (1 Greenl.Ev. § 484):

They 'therefore are recognized by law, because they are required by law to be kept, because the entries in them are of public interest and notoriety, and because they are made under the sanction of an oath of office, or, at least, under that of official duty. They belong to a particular custody, from which they are not usually taken out but by special authority, granted only in cases where inspection of the book itself is necessary, for the purpose of identifying the book or the handwriting, or of determining some question arising upon the original entry, or of correcting an error which has been duly ascertained. Books of this public nature, being themselves evidence, when produced, their contents may be proved by an immediate copy, duly verified.'

Books of assessment of public rates and taxes are of this description. He further says (section 485):

'When the books themselves are produced, they are received as evidence, without further attestation. But they must be accompanied by proof that they come from the proper repository. Where the proof is by a copy, an examined copy, duly made and sworn to by any competent witness, is always admissible. Whether a copy, certified by the officer having legal custody of the book or document, he not being specially appointed by law to furnish copies, is admissible, has been doubted; but, though there are decisions against the admissibility, yet the weight of authority seems to have established the rule that a copy given by a public officer whose duty it is to keep the original ought to be received in evidence.'

It is to be observed that the question of the production or the admissibility of books or registers was not actually in this case. That which was known to be wanted was the paper signed by Cole, sometimes called 'a return' and sometimes called 'an application,' which declared his intention to be a retail liquor dealer, and the payment of the tax. These applications are not of a private or secret character because, under section 3240 of the Revised Statutes, each collector of internal revenue is required to keep conspicuously in his office, for the public inspection, an alphabetical list of all persons who shall have paid special taxes within his district, and to state therein the time, place, and business for which such special taxes have been paid. It is further to be observed that the original paper, rather than a copy, was or might be needful in order to identify and prove the signature of Cole, and, furthermore, that, inasmuch as Hirsch declined to produce any papers or applications, the court was not called upon to ascertain whether books-- that is, volumes-- or only copies of parts of books were needed. The question at issue, therefore, relates to the refusal of Hirsch to produce, in obedience to the order of the court, any paper in his possession as deputy collector pertaining to the intention or...