Henderson's Tobacco
78 U.S. 652

Annotate this Case

U.S. Supreme Court

Henderson's Tobacco, 78 U.S. 11 Wall. 652 652 (1870)

Henderson's Tobacco

78 U.S. 652

I

N ERROR TO THE CIRCUIT COURT

FOR THE DISTRICT OF IOWA

Syllabus

1. Although a former statute is impliedly repealed by a subsequent one plainly repugnant to it or so far as the later statute's' making new provisions is plainly intended for a substitute for the earlier one, yet a repeal is not to be implied where the powers or directions under the later acts are such as may well subsist together with those under the earlier.

2. Held, on an application of this principle, that the Act of July 20, 1868,

Page 78 U. S. 653

imposing taxes on distilled spirits and tobacco, did not repeal the proviso to the 25th section of the Internal Revenue Act of March 2, 1867, which limits to twenty days the time for commencing proceedings to enforce forfeitures.

3. But the proviso has no application to any other forfeitures than such as are provided for in it.

This was an information under the Act of July 20, 1868, [Footnote 1] entitled "An act imposing taxes on distilled spirits and tobacco, and for other purposes," to enforce a forfeiture, under the revenue laws, of certain caddies of tobacco which had been seized on the 17th of August, 1869, and which were claimed by Henderson & Co. The information contained three counts. The first was in substance that since the first day of January, 1868, to-wit from January 1, 1868, to August 17, 1869, the claimants, being the owners of a tobacco factory, with its furniture, manufactured, prepared, and placed in caddies manufactured leaf tobacco, and sold and removed the same without placing on the caddies the proper revenue stamps and without having paid the special tax required by law, but that they did place on the caddies of tobacco so manufactured and so sold and removed half-stamps -- that is to say revenue stamps cut in two parts, each part of said stamps being used on separate caddies, and each half-stamp so covered by a whole stamp as to make the half stamp so used resemble and be taken for a whole stamp. The second count was for substantially the same offense. The third was for making false and fraudulent entries of the amount of tobacco sold by them annually, and false and fraudulent entries of the quantity manufactured by them, and false and fraudulent reports of their annual sales, in violation of their duty under the law.

The claimants pleaded to this information that it was not filed until more than twenty days after the caddies had been seized by the collector for the alleged violations of law. To the plea there was a demurrer, which was overruled by the

Page 78 U. S. 654

court, and the information was dismissed. The record was therefore supposed to present the question whether proceedings to enforce a forfeiture for such violations of the revenue laws as were charged in the information must be commenced within twenty days from the time of the collector's seizure, and this was the only point argued. The claimants, in support of an affirmative answer to this question, relied upon the proviso to the 25th section of the Act of Congress of March 2, 1867, [Footnote 2] entitled "An act to amend existing laws relating to internal revenue, and for other purposes." This 25th section enacted that the owner, agent, or superintendent of any still, boiler, or other vessel used in the distillation of spirits who should neglect or refuse to make true and exact entry and report of the same or to do, or cause to be done any of the things by law required to be done concerning distilled spirits shall, in addition to other fines and penalties by law provided, forfeit for every such neglect or refusal all the spirits made by or for him, and all the vessels used in making the same, and the stills, boilers, and other vessels used in making the same, and all materials fit for use in distillation found on the premises. It also authorized the collector to seize such spirits, vessels, and materials and hold them until a decision thereon according to law. Then followed this proviso:

"Provided that proceedings to enforce said forfeiture shall be commenced by such collector within twenty days after the seizure thereof, and the proceedings to enforce said forfeiture of said property shall be in the nature of a proceeding in rem in the circuit or district court of the United States for the district where such seizure is made, or in any other court of competent jurisdiction."

The 9th section of the same act enacted that "all proceedings relating to forfeiture and sale of distilled spirits shall apply to tobacco, snuff, and cigars."

In answer to this, it was contended on behalf of the United

Page 78 U. S. 655

States that the proviso relied upon by the claimants was repealed by the Act of July 20, 1868. It was admitted that the act of 1868 contained no words expressly repealing either the act of 1867 or that of 1864, to which the one of 1867 was a supplement, but the argument was that it covered the ground of the preceding statute and that no limitation was contained in the latter statute with regard to the time in which the proceeding of forfeiture shall be commenced.

There was no doubt that the latter act did change numerous provisions of the former act, and insofar cover its ground. In the sections under which this information was filed there were provisions for the punishment of persons manufacturing tobacco or snuff in violation of the internal revenue laws not in the former acts, and which did not make reference to the proceedings for the punishment of the illegal manufacture of distilled spirits.

The act of 1868 repealed in terms [Footnote 3] "all acts and parts of acts inconsistent" with its own provisions, enacting, however,

"That all the provisions of said act shall be in force for levying and collecting all taxes properly assessed, or liable to be assessed, or accruing under the provisions of former acts, the right to which has already accrued or which may hereafter accrue under said acts, and for maintaining, continuing, and enforcing liens, fines, penalties, and forfeitures, incurred under and by virtue thereof. And this act shall not be construed to affect any act done, right accrued, or penalty incurred under former acts, but every such right is hereby saved, and all suits and prosecutions for acts already done in violation of any former act or acts of Congress relating to the subjects embraced in this act may be commenced or proceeded with in like manner as if this act had not been passed."

This section, it was considered by the government, indicated the broad extent to which the former revenue acts had been revised by the act of 1868, so that Congress considered that penalties under them would be lost without such a saving clause.

Page 78 U. S. 656

There was, however, nothing in the act of 1868 regulating or defining in any way the manner of proceeding in cases of forfeiture, and unless certain of the provisions of the previous acts were to be regarded as still in force, there was left apparently no guide nor statute now in force in important parts of the revenue practice. These were set forth in different sections among the first fifty-two of the act of 1864, amended by acts of 1866 and 1867. So section 3d of the act of 1867 provided certain rules under which district attorneys were to report certain things to the Commissioner of Internal Revenue. Section 4th placed under the control of the commissioner real estate acquired by the United States under the revenue laws. Section 7th authorized the commissioner to appoint detectives &c., while section 8th provided a penalty for failure to pay tax when due. No provisions were made on the subject of these sections in the late act.

MR. JUSTICE STRONG delivered the opinion of the Court.

It is contended on behalf of the United States that the proviso relied upon by the claimants was repealed by the Act of July 20, 1868.

If this is so, it was a repeal by implication only. That act contains no words expressly repealing either the act of 1867 or that of 1864, to which the one of 1867 was a supplement. On the contrary, the repealing clause, which it does contain, indicates plainly the intention of Congress to leave in force some portions of former acts relative to the same subject matter. The 105th section enacts "that all acts and parts of acts inconsistent with the provisions of this act are hereby repealed." This is an express limitation of the extent to which it was intended former acts should cease to be operative -- namely only so far as they are inconsistent with the new act. It is quite inadmissible to engraft upon this express declaration of legislative intent an implication of more

Page 78 U. S. 657

extensive repeal. Statutes are indeed sometimes held to be repealed by subsequent enactments, though the latter contain no repealing clauses. This is always the rule when the provisions of the latter acts are repugnant to those of the former, so far as they are repugnant. The enactment of provisions inconsistent with those previously existing, manifests a clear intent to abolish the old law. In the United States v. Tynen, [Footnote 4] it was said by MR. JUSTICE FIELD that

"when there are two acts upon the same subject, the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first, and even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first and embraces new provisions plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act."

For this several authorities were cited, some of which have been cited on the present argument. This is undoubtedly a sound exposition of the law. But it must be observed that the doctrine asserts no more than that the former statute is impliedly repealed, so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute, making new provisions, is plainly intended as a substitute for it. Where the powers or directions under several acts are such as may well subsist together, an implication of repeal cannot be allowed. [Footnote 5]

If now, in the light of these principles, the Act of July 20, 1868, be examined and compared with the acts of 1864 and 1867 (the latter being an amendment of the former), there will be found in it nothing inconsistent with the authority given by the amended act of 1867 to the collector to seize and hold property subject to forfeiture, or with the proviso that directs the mode of procedure to enforce forfeitures, designates the courts in which proceedings may be instituted, and limits the time within which they may be commenced.

Page 78 U. S. 658

It cannot be said that all the powers and limitations mentioned in the proviso may not subsist in entire consistency with everything prescribed in the act of 1868. Undoubtedly that act was intended to be a revision of former acts relative to spirits and tobacco. And in some particulars it made changes. It introduced new provisions respecting the mode of paying the tax on spirits and tobacco, and it prescribed some new penalties for new offenses, but it made no provision respecting the mode of enforcing penalties and forfeitures. It cannot, therefore, have been intended as a complete substitute for all former acts relative to its subject. There are many provisions of the acts of 1864 and 1867 which it left untouched and unsupplied. Indeed, the first fifty-two sections of the act of 1864, amended as they were by the acts of 1866 and 1867, without which the revenue laws cannot be executed, are not attempted to be supplied. There is therefore no reason for holding that any other provisions of the acts of 1864 and 1867 have been repealed than such as are plainly inconsistent with the provisions of the act of 1868. There is nothing in this latter act repugnant to the proviso upon which the claimants rely.

But the proviso of the 25th section of the act of 1867 which limits to twenty days the time for commencing proceedings to enforce forfeitures has no application to any other forfeitures than such as are provided for in that section. Those are, as we have seen, forfeitures for neglect or refusal to make certain true and exact entries and reports and forfeitures for neglect or refusal to do any of the things by law required to be done concerning distilled spirits (or tobacco). They are forfeitures for acts of omission or neglect. To proceedings to enforce them the limitation was applied. It was made applicable to no other. The proviso speaks of proceedings to enforce said forfeiture, and plainly contemplates no seizure or forfeiture for any different offense than those previously mentioned in the section. This information is founded upon no such neglect or refusal. The forfeiture claimed is for affirmative acts of the claimants, for active offenses first made grounds of forfeiture by the

Page 78 U. S. 659

act of 1868. Each count charges positive fraud -- the first and second, fraudulent use of stamps, unknown under the act of 1867, and the third count charges fraudulent entries and fraudulent reports. It may well be that a distinction was intended to be made. Passive violations of law, mere neglect, may have been regarded less culpable than active transgression. All the causes of forfeiture enumerated in the sixty-ninth section of the act of 1868, upon which all the counts in the information are based, are of the latter character. We cannot hold, therefore, that the limitation of the proviso to the 25th section of the act of 1867, which the claimants have pleaded, is any protection to them. It follows that the judgment of the circuit court dismissing the information must be reversed.

The judgment of the circuit court is

Reversed and the cause is remanded for further proceedings.

[Footnote 1]

15 Stat. at Large 156, §§ 69 and 70.

[Footnote 2]

14 Stat. at Large 483.

[Footnote 3]

§ 105.

[Footnote 4]

Supra,78 U. S. 92.

[Footnote 5]

Dwarris on Statutes 674 et seq.; Goldson v. Buck, 15 East 377.

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