IN THE MATTER OF THE AUTHORITY OF PERSONS EMPLOYED UNDER SECTION 3463 OF THE REVISED STATUTES TO VISIT, ENTER INTO, AND EXAMINE DISTILLERIES, AND TO EXAMINE "FRUIT-DISTILLERY PAPERS."-DETECTION-APPROPRIATION CASE.

1. A person employed under section 3463 of the Revised Statutes is not authorized to "enter into and upon the premises" occupied as distilleries "to see if they are operated in accordance with the laws." Such entry, under color of such authority, is, in contemplation of law, without the consent of the owner of the premises, and in violation of the constitutional guaranty against unreasonable searches. 2. Statutes empowering officers, or quasi officers, specified therein to enter into and examine distilleries to detect violations of law are authorized by the Constitution as necessary revenue regulations.

3. Statutes giving such right of entry and examination are to be construed strictly. 4. When in a statute a special authority is given to officers therein named to perform specific duties, and an authority, sufficiently comprehensive in terms, if standing alone, to include the special authority, is given to employés therein provided for, the general authority will be construed as extending only to those acts not provided for in the special authority.

5. When an authority is given by statute without specifying the means of executing it, the right to employ the usual and appropriate means exists as an incident of the authority so given. But incidental powers are limited to the performance of such acts as are (1) not otherwise specially provided for, and (2) lawful. 6. The "golden rule" of construction is, to give effect to the ordinary meaning of words employed in a statute, unless it be clear that the law-making power intended otherwise.

7. A statute is not to be made dependent for its execution upon the consent of those on whom it is to operate, unless such purpose clearly appear. Laws generally operate without the consent of those against whom they are executed.

8. No person employed as a detective, under section 3463 of the Revised Statutes, can be authorized to examine the sworn returns of fruit distillers, with a view of ascertaining whether frauds have been committed on the revenues. Sworn officers alone can have access to papers which disclose the style or mode of distillation, or quality of spirits produced at any distillery.

August 28, 1882, the Acting Commissioner of Internal Revenue addressed the following letter to I. J. Young, collector of the 4th internalrevenue district of North Carolina:

"SIR: Referring to circular No. 247, dated June 24, 1882, in regard to more closely supervising the operations at fruit distilleries, you are informed that the appropriation for the present year for the payment of deputy collectors will not admit of the employment of special deputy collectors for this work. Your division deputies will have to supervise the work of gaugers, supplemented by a force of competent persons employed to discover violations of internal revenue law, who will be paid from that appropriation on Form 131, and for this purpose you are authorized to expend six hundred ($600) dollars in addition to the allowance made you in letter of August 14, 1882. This must cover the fruit-distilling season, not exceeding three months.

"You should employ only intelligent, industrious, and competent

men, who, under the direction of your deputy collectors, will devote themselves exclusively to the work for which they are employed.

"This force is a temporary one, to be discharged at the expiration of the time named, or earlier, if their services should not be required. No further allowance can be made to you for this purpose. You will inform the persons employed that they must not expect to be retained in the service any longer time than is indicated above.

"It is believed that the revenue from taxes on spirits distilled from fruits can be largely increased by a more vigorous enforcement of the law, and more careful supervision of the operations of distillers. this in view, this allowance is made to you.

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"As the persons employed will be obliged to visit fruit distilleries, you should give them a letter, or some paper, stating that they are employed in the internal-revenue service in your district under the direction of the Commissioner of Internal Revenue, but they must distinctly understand that this does not clothe them with any of the power of a deputy collector or officer of the Government. They will always act under your directions, or the directions of such deputy as you may designate.

"You will render your account for the expenditure of this allowance on Form 131, supported by proper subvouchers on Form 10. A report showing how and where the persons employed were occupied each day must accompany your account."

The collector employed three persons under this authority, two of whom were, as the vouchers for their payment show, engaged during the month of October, 1882, "at the collector's office examining fruitdistillery papers for the purpose of detecting frauds," and the third was engaged during the same time in visiting and examining fruit distilleries. For these services bills in the sum of $100 each have been presented by these parties to the collector, and the latter has rendered an account therefor, which has been approved by the Secretary of the Treasury and the Commissioner of Internal Revenue, and allowed by the Fifth Auditor, who finds a balance of three hundred dollars due and payable from the appropriation for detecting frauds, &c.

The Acting Commissioner of Internal Revenue, in a letter to the First Comptroller of January 10, 1883, says:

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"These persons are employed under section 3463 of the Revised Stat* * [an] act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1883. It has been customary in this office to make limited allowance to collectors from the appropriation above referred to, to employ persons to obtain information, which will lead to the discovery of violations of internal-revenue law, [and] which could not be gained by their subordinate officers, the regular employés of the collectors being so well known in their respective districts that it is often impossible for them to discover frauds which could only be done by persons not known to be connected with the collector's office; especially is this the case in connection with the illicit production and sale of distilled spirits and tobacco. It was believed that in several districts where a large number of fruit distilleries was operated a considerable portion of the product of such distilleries escaped taxation through the fraud of the operators. These stills being operated in sparsely settled and inaccessible portions of the district, it was difficult to have them watched by deputy collect

ors, in some districts the number being so large as to render it physi cally impossible for the deputy collectors to visit the distilleries more than once during the distillery season. It was therefore thought wise, and for the interests of the service, instead of increasing the number of deputy collectors, to employ persons to visit such distilleries frequently, to see if they were operated in accordance with the laws, if the tax was paid upon the product, and to get all information possible which would develop frauds upon the internal revenue, if they were being practiced. So far as this office has been informed from the reports and returns received it is believed that the employment of these persons has resulted in largely increasing the revenue from the tax on spirits distilled from fruits.

"It is the duty not only of deputy collectors but of all officers of internal revenue to see that the laws are enforced [and] the regulations complied with, and to give to their superior officers all information that they can obtain in regard to violations of law. It is also the duty of deputy collectors to visit all places where articles liable to tax are produced to examine the same, to report their condition, and to discover, if possible, violations of law thereat.

"The persons referred to in your communication, so far as obtaining information of violations of internal-revenue law is concerned, were performing service which is required of every internal-revenue officer, but, in employing them, extraordinary measures were being taken to discover violations of law, and to bring offenders to punishment. It seems to me that the employment of these persons was within the spirit, if not within the letter of the law."

The question now arises as to whether said parties were lawfully employed, and, if so, whether they can be paid from any appropriation. DECISION BY WILLIAM LAWRENCE, First Comptroller:

In the performance of his duties the Commissioner of Internal Revenue is under the direction of the Secretary of the Treasury, who is the chief executive officer of the Department of the Treasury. Subordinate to the Commissioner are collectors of internal revenue. These collectors and their deputies are clothed with extraordinary powers, including in certain cases the power, within their respective districts, to "enter into and upon the premises" of persons delinquent in making returns for assessment. (Rev. Stat., 319, 320, 321, 3143, 3167, 3176, 3177, 3277, 3286, 3318, 3671.) Revenue officers are also vested with a power of visitation and search for the purpose of inspecting the operation of distilling, and of detecting violations of the revenue laws. In respect to this power the Revised Statutes provide as follows:

"SEC. 3276. It shall be lawful for any revenue officer at all times, as well by night as by day, to enter into any distillery or building or place used for the business of distilling, or used in connection therewith for storage or other purposes, and to examine, gauge, measure, and take an account of every still or other vessel or utensil of any kind, and of all low-wines, and of the quantity and gravity of all mash, wort, or beer, and of all yeast, or other compositions for exciting or producing fermentation in any mash or beer, of all spirits and of all materials for making or distilling spirits, which may be in any such distillery or premises, or . in possession of the distiller. And whenever any internal-reveune officer,

or any person called by him to his aid, is hindered, obstructed, or prevented by any distiller or by any workman, or other person acting for such distiller, or in his employ, from entering into any such distillery or building or place as aforesaid; or any such officer is by the distiller, or his workman, or any person in his employ, prevented or hindered from, or opposed, or obstructed, or molested in the performance of his duty under the internal-revenue laws, in any respect, the distiller shall forfeit the sum of not exceeding one thousand dollars. And whenever any officer, having demanded admittance into a distillery or distillery premises, and having declared his name and office, is not admitted into such distillery or premises by the distiller or other person having charge thereof, it shall be lawful for such officer at all times, as well by night as by day, to break open by force any of the doors or windows, or to break through any of the walls of such distillery or premises necessary to be broken open or through, to enable him to enter the said distillery or premises; and the distiller shall forfeit the sum of not exceeding one thousand dollars.

"SEC. 3277. On the demand of any internal-revenue officer, every distiller or rectifier shall furnish strong, safe, and convenient ladders of sufficient length to enable the officer to examine and gauge any vessel or utensil in such distillery or premises; and shall, at all times when required, supply all assistance, lights, ladders, tools, staging, or other things necessary for inspecting the premises, stocks, tools, and apparatus belonging to such person, and shall open all doors, and open for examination all boxes, packages, and all casks, barrels, and other vessels not under the control of the revenue officer in charge, under a penalty of five hundred dollars for every refusal or neglect so to do.

"SEC. 3278. It shall be lawful for any revenue officer, and any person acting in his aid, to break up the ground on any part of a distillery, or premises of a distiller or rectifier, or any ground adjoining or near to such distillery or premises, or any wall or partition thereof, or belonging thereto, or other place, to search for any pipe, cock, private conveyance, or utensil; and, upon finding any such pipe or conveyance leading therefrom or thereto, to break up the ground, house, wall, or other place through or into which such pipe or other conveyance leads, and to break or cut away such pipe or other conveyance, and turn any cock, or to examine whether such pipe or other conveyance conveys or conceals any mash, wort, or beer, or other liquor, which may be used for the distillation of low-wines or spirits, from the sight or view of the officer, so as to prevent or hinder him from taking a true account thereof."

Subordinate also to the Commissioner, and, in some respects, to collectors, there are two classes of quasi official persons, whose powers and duties in the internal-revenue service it is material to consider: (1) internalrevenue agents, (2) deputy collectors of internal revenue. In addition to these, there are sometimes persons temporarily employed "for detecting and bringing to trial and punishment persons guilty of violating the internal-revenue laws, or conniving at the same." Internal-revenue agents are appointed by the Commissioner of Internal Revenue. These are authorized to enter upon premises and make examinations as fully as collectors. (Rev. Stat., 3152, 3177, 3277, 3286, 3318.) Deputy collectors of internal revenue are appointed by collectors of internal revenue, and are authorized, in their proper districts, to inquire after and concerning

all persons therein who are liable to tax, to summon such persons and others to produce books for examination, and to enter upon premises and make examinations as fully as collectors. (Rev. Stat., 3148, 31723177, 3276-3278, 3318.)

These are extraordinary powers, under which "the operations, style of work, or apparatus of any manufacturer or producer" of spirituous or malt liquors or other taxable products may be ascertained; and the unlawful disclosure of any of these matters by "any collector or deputy collector, or any inspector, or other officer acting under the authority of any revenue law of the United States" is a criminal offense. Section 3167 of the Revised Statutes provides that:

"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 any 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."

The words, "or other officer," in this penal statute include agents appointed by the Commissioner of Internal Revenue under section 3152 of the Revised Statutes, as amended by section 2 of the act of March 1, 1879 (20 Stat., 329); for, although not within the letter of this criminal provision, it is evident that Congress intended that it should apply to all persons who are clothed with authority under the internal-revenue laws to enter into, and make an examination of, premises.

The employment of persons "for detecting and bringing to trial and punishment persons guilty of violating the internal-revenue laws," is provided for by section 3463 of the Revised Statutes, as amended by the act of June 19, 1878 (20 Stat., 187), as follows:

"The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is authorized to pay such sums, not exceeding in the aggregate the sum appropriated therefor, as he may deem necessary for detecting and bringing to trial and punishment persons guilty of violating the internal-revenue laws, or conniving at the same, in cases where such expenses are not otherwise provided for by law.

"And the Commissioner of Internal Revenue shall make a detailed statement to Congress once in each year as to how he has expended this sum.

There is no act of Congress which expressly authorized the employment of persons under this section; and persons can be employed under it only by implication of a grant of authority therein to the Commissioner to employ them. Nor is there any express authority of law for such an employé to enter a distillery or other premises for the purpose of search or examination under the internal-revenue laws, except as an aid or a guard for the proper revenue officer or agent, who, it would seem, is alone clothed with authority to make search and examination of premises.