John Boske v. David Comingore

Decision Date09 April 1900
Docket NumberNo. 370,370
PartiesJOHN T. BOSKE, Sheriff of Kenton County, Kentucky, Appt ., v. DAVID N. COMINGORE
CourtU.S. Supreme Court

Messrs. John G. Carlisle, H. M. Winslow, W. S. Taylor, Russell & Winslow, and Clifton J. Pratt for appellant.

Assistant Attorney General Boyd for appellee.

Mr. Justice Harlan delivered the opinion 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:

'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 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 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 the 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 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 court of Carroll county, Kentucky—a court of limited jursidiction—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 Revised Statutes of the United States and the rulings of the department.' That section reads: '§ 3167. If any collector or deputy collector, or any inspector or other officer acting under the authority of any revenue law of the United States, divulges to any party, or makes known in any other manner than may be provided by law, the operations, style of work, or apparatus of a manufacturer or producer visited by him in the discharge of his official duties, he shall be subject to a fine of not exceeding one thousand dollars, or to be imprisoned for not exceeding one year, or to both, at the discretion of the court, and shall be dismissed from office, and be forever thereafter incapable of holding any office under the government.' Being asked what rulings of the department he referred to other than § 3167 of the Revised Statutes, he said: 'The department does not permit the giving out of anything contained in internal revenue returns or documents by a collector, storekeeper, or any other officer of a collectiondistrict for purposes other than those which the statutes of the United States contemplate.' That ruling, he said, was made by the Secretary of the Treasury through the Commissioner of Internal Revenue.

In consequence of the refusal of the collector to file and make part of his deposition copies of the above reports of the defendants, the notary public before whom his deposition was taken adjudged him to be in contempt, and ordered him to pay to the commonwealth a fine of $5, and to be confined in the county jail for six hours, or until he was willing to furnish the copies called for, or permit access to the records of his office in order that information might be obtained to be used as evidence in the above case.

The matter having been reported by the notary public to the Carroll county court, as required by § 538 of the Kentucky Civil Code of Practice, that court made the following order:

'It is therefore ordered and adjudged by the court that the plaintiff's motions be sustained, and that plaintiff is entitled to use as evidence the facts stated in the reports and papers filed by any or all of the defendants in the office of the collector of internal revenue for the sixth district of Kentucky and also such facts as are stated in the reports made to said office by certain officers known as 'United States storekeepers,' and any other similar records, papers, documents, or exemplifications in said office tending to show the amount of liquor on hand at the distillery of the defendants on the 15th day of September, 1889, 1890, 1891, 1893, 1894, 1895, 1896, and on the 15th day of November, 1892; it is further ordered that the witness, D. N. Comingore, make or cause to be made or permit the plaintiff, its agent or attorneys, to make true copies of such of said papers as the plaintiff or its attorneys may demand, and that said Comingore, as collector, attest the same and attach his seal of office thereto, if he has such seal, and that he permit the plaintiff or its agents or attorneys to compare said copies with the originals and verify the same, and that he shall also testify further in regard to same, if demand be made, and leave is hereby given to complete the taking of said deposition on giving proper notice, and for this purpose the clerk is directed upon request purpose the clerk is directed upon request of plaintiff's attorneys to transmit said public, Covington, Ky. It is further adjudged that the action of the notary public, W. A. Price, in adjudging the witness, D. N. Comingore, to be in contempt for failure to file copies of reports, papers, documents, and exemplifications or to testify as to their contents, as requested, be sustained and affirmed, and that the commonwealth of Kentucky recover of said D. N. Comingore the sum of $5 as a fine, and that he be taken by the sheriff of Kenton county, Ky., and confined in the jail of said county for the space of six hours, or until he signifies his willingness to comply with the request made in the deposition attempted to be taken, as follows: 'Please file official copies of the reports made to your office by Block & Son as to the amount of liquor which they manufactured and deposited in the bonded warehouses located on their distillery premises from the year 1887 down to the present time and also official copies of applications made by them to your office during said time for permission to withdraw such liquors from bond.' Also with the...

To continue reading

Request your trial
209 cases
  • Cermeno-Cerna v. Farrell, Civ. No. 68-403-R.
    • United States
    • U.S. District Court — Central District of California
    • 2 Agosto 1968
    ...for determining the validity of an administrative regulation are articulated by the Supreme Court in Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 706, 44 L.Ed. 846 (1900): "A regulation * * * should not be disregarded or annulled unless, in the judgment of the court, it is plainly a......
  • Wade v. Mayo
    • United States
    • U.S. Supreme Court
    • 14 Junio 1948
    ...33 L.Ed. 949 (impairment of the functions of thel egislative and judicial branches of the Federal Government). 21 Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; Ohio v. Thomas, 173 U.S. 276, 19 S.Ct. 453, 43 L.Ed. 699. 22 Wildenhus' Case, 120 U.S. 1, 7 S.Ct. 385, 30 L.Ed. 565......
  • Morss v. Forbes
    • United States
    • New Jersey Supreme Court
    • 20 Mayo 1957
    ...71 S.Ct. 416, 95 L.Ed. 417 (1951); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938) Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900); see generally, Annotations, 95 L.Ed. 425 (1951) and 97 L.Ed. 735 But where, as here, the right of a litigant to inf......
  • Minneapolis, St. P. & S. Ste. M. Ry. Co. v. R.R. Comm'n of Wis.
    • United States
    • Wisconsin Supreme Court
    • 13 Junio 1908
    ...of the state of Wisconsin needs no such enabling provision. It possesses that power. But it was said in Boske v. Comingore, 177 U. S. 468, 20 Sup. Ct. 705, 44 L. Ed. 846: “Congress has a large discretion as to the means to be employed in the execution of a power conferred upon it, and is no......
  • Request a trial to view additional results
6 books & journal articles
  • 1. Administrative Procedure Act
    • United States
    • ABA General Library Federal Administrative Procedure Sourcebook. Fourth Edition
    • 1 Enero 2009
    ...change existing law as to those materials in Government files which have been heretofore treated as confidential. See Boske v. Comingore , 177 U.S. 459 (1900); Boehm v. United States , 123 F. 2d, 791, 805 (C.C.A. 8, 1941). 1 ATTORNEY GENERAL’S MANUAL ON THE APA 26 III SECTION 4—RULE MAKING ......
  • SOURCES AND LIMITS FOR PRESIDENTIAL POWER: PERSPECTIVES OF ROBERT H. JACKSON.
    • United States
    • Albany Law Review Vol. 83 No. 2, December 2019
    • 22 Diciembre 2019
    ...111 (Ch. 1871); Appeal of Hartranft, 85 Pa. 433 (1878): Gray v. Pentland, 2 Serg. & Rawle 23 (Pa. 1815). (88) See Boske v. Comingore, 177 U.S. 459, 470 (1900); In re Querles, 158 U.S. 532, 536-37 (1895); Vogel v. Gruaz, 110 U.S. 311, 311 (1884); Kilbourn v. Thompson, 103 U.S. 168, 181, ......
  • Who Is Mr. Touhy, and What Does He Have to Do With My Subpoena?
    • United States
    • South Carolina Bar South Carolina Lawyer No. 27-6, May 2016
    • Invalid date
    ...and, even, from the Congress. Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774, 777 (9th Cir. 1994). [3] Boske v. Comingore, 177 U.S. 459 (1900). [4] United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). [5] See also United States v. Fuentes-Correa, 2013 U.S. Dist. LEXIS 21172......
  • How to Properly Seek Testimony or Documents from a Federal Agency
    • United States
    • Colorado Bar Association Colorado Lawyer No. 45-8, August 2016
    • Invalid date
    ...because they have the ‘force and effect of law.’”) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302–03 (1979)); Boske v. Comingore, 177 U.S. 459, 469–70 (1900) (holding that Internal Revenue Service’s regulations under the Housekeeping Act were valid). [11] Crim. P. 17(c); CRCP 45(a). [1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT