The 66th section of the Act of 1799, 1 Stat. 677, ch. 22, which
declares that
"If any goods, wares, or merchandise, of which entry shall have
been made in the office of a collector, shall not be invoiced
according to the actual cost thereof, at the place of exportation,
with design to evade the duties thereupon or any part thereof, all
such goods &c., or the value thereof, to be recovered of the
person making
Page 58 U. S. 86
the entry, shall be forfeited,"
has not been repealed by any provision in the act of 1842, or in
any of the duty acts, but still exists in full force and
effect.
A libel of information was filed in the district court by the
collector of the port of New Orleans, on behalf of himself and the
United States, for the condemnation and forfeiture of sixty-seven
packages of goods on account of an alleged fraud upon the revenue,
charging, among other things, in the information that the goods
were entered at the custom house upon the production of an invoice
in which they were invoiced at a less sum than the actual cost
thereof at the place of exportation with a design to evade the
duties.
Jules Levois, of New Orleans, filed a claim to the goods, and
the cause came up for trial in March, 1850, when the jury, under
the instructions of the court, found a verdict for the
claimant.
A bill of exceptions was taken by Mr. Hunton, district attorney
of the United States, which, being short, is here inserted, as
follows:
"Be it remembered, that on the trial of this cause the plaintiff
offered in evidence the following documents, numbered as
follows:"
No. 1. Warehouse entry of five packages with extract
invoice.
No. 2. Import entry of sixty-two packages.
No. 3. Report of United States appraisers.
No. 4. United States appraiser's valuation.
No. 5. Merchant appraiser's _____ do.
No. 6. Copy of interrogatories propounded by appraisers to P. D.
Duval.
No. 7. Call for letters.
No. 8. Call for reply to interrogatories.
No. 9. Letter from Mr. Duval to United States appraisers.
No. 10. Paper found by appraisers in case No. 81.
No. 11. Invoice in which the entries were made.
The following witnesses were introduced:
R. J. Canfield, who stated that he was one of the appraisers in
the custom house of New Orleans, proved the several documents
offered in evidence; that P. D. Duval, the partner or agent of
claimant, made the entry at the custom house; his refusal to answer
the interrogatories propounded; stated that from his experience as
appraiser, he was familiar with the valuation and cost of such
goods as were contained in the invoice on which the entries were
made; stated that the goods were invoiced at less than the actual
cost, as he believed, and at less
Page 58 U. S. 87
than their actual value in the foreign market from whence they
were imported, to the extent shown by the valuation offered in
evidence; that he had made a particular examination of the several
packages seized. He proved that the paper marked No. 10 was found
by the appraisers, in case No. 81, and that the same articles
contained in that paper were invoiced at ___.
Philip Simms, A. Duthel, E. D. Hyde, Mr. Letchford, were also
introduced as witnesses on the part of the United States, all of
whom were importing merchants in the City of New Orleans, and had
imported like goods as those seized, from Liverpool, about the same
time; some had received importations by the same ship that brought
out those in controversy; all of them confirmed the merchants'
valuation, as shown in paper No. 5, and concurred in saying that
the said goods were invoiced at least twenty-five percentum lower
than actual cost or value in the foreign market. It was proven that
cotton goods had advanced during the spring and summer of 1849. Mr.
Rifflard said, that all of the goods in the invoice were invoiced
at less than the actual value; some of them, however, not more than
ten or fifteen percentum, in his judgment. And thereupon the court
instructed the jury as follows, namely:
"1. That the 66th section of the Act of Congress of the 2d
March, 1799, insofar as it imposes the penalty of forfeiture of any
goods, wares, and merchandise, of which entry shall have been made
in the office of a collector, and which shall not be invoiced
according to the actual cost thereof, is inconsistent with and
repugnant to the 13th and 15th sections of the Act of 1 March,
1823, imposing a penalty of additional duties on goods entered
under fraudulent invoice, and insofar as said inconsistency and
repugnancy existed, the said act of 1799 was repealed by said act
of 1823."
"2. That the said 66th section of the Act of Congress of 2
March, 1799, was, to the same extent as aforesaid, repugnant to and
inconsistent with the 17th section of the Act of 30 August, 1842,
and is to the same extent repealed by said act of 1842."
"3. That the proceedings directed and authorized by the 17th
section of the act of 1843, having been proved by the United States
to have taken place against the merchandise therein alleged to be
forfeited to the government, it was the duty of the collector to
have levied and collected the additional duty which, by said 17th
section, is imposed as a penalty on goods which shall be appraised,
estimated, and ascertained to exceed the invoice value; that said
penalty is inconsistent with and repugnant to the penalty of
forfeitures, as imposed by any preceding law of Congress; that the
said section of said act of 1842
Page 58 U. S. 88
and the other sections of said last-named act do, by
implication, repeal all previous provisions of all acts of Congress
imposing the penalty of forfeiture of merchandise which is falsely
valued in an invoice, or of which the actual cost has not been
stated in the invoice under which their entry is made."
"And also instructed the jury that there was at present no law
in force authorizing the forfeiture of the said goods for the
causes set forth in the libel. To which instructions and charge the
United States, by their attorney, except and pray that this bill
may be signed, sealed, and entered of record; which is done."
"[Signed] THEO. H. McCALEB [Seal]"
"
United States Judge"
In May, 1853, the cause came on for trial before the circuit
court of the United States, when the judgment of the district court
was affirmed.
A writ of error brought the case up to this Court.
Page 58 U. S. 90
MR. JUSTICE NELSON delivered the opinion of the Court.
A libel of information was filed in the district court by the
collector of the port of New Orleans on behalf of himself and the
United States for the condemnation and forfeiture of sixty-seven
packages of goods on account of an alleged fraud upon the revenue,
charging among other things in the information
Page 58 U. S. 91
that the goods were entered at the custom house upon the
production of an invoice, in which they were invoiced at a less sum
than the actual cost thereof at the place of exportation, with a
design to evade the duties.
On the trial, after evidence was given on the part of the
libellants tending to prove the facts charged in the information,
the court charged the jury that the 66th section of the duty act of
1799 was repealed by force of subsequent statutes, and that at
present there was no law in existence providing for a forfeiture of
the goods for the causes set forth in the libel. The jury found
accordingly for the claimant.
This ruling was carried up on error to the circuit court, where
the judgment was affirmed.
The 66th section of the act of 1799, so far as it is material in
the case, is as follows:
"That if any goods wares, or merchandise, of which entry shall
have been made in the office of a collector shall not be invoiced
according to the actual cost thereof at the place of exportation,
with design to evade the duties thereupon, or any part thereof, all
such goods &c., or the value thereof, to be recovered of the
person making the entry, shall be forfeited."
It was held, in the case of
Wood v. United
States, 16 Pet. 342, which was an information
founded upon this section, that it was then in force and the
property there seized was condemned under it. The goods in that
case had been entered at the custom house in 1839 and 1840. The
duty act of 1842, which has since been passed, is supposed to
operate a repeal of the section by implication.
The 19th section of that act is mainly relied on, which is as
follows:
"That if any person shall knowingly and willfully, with intent
to defraud the revenue of the United States, smuggle or
clandestinely introduce into the United States any goods &c.
subject to duty by law and which should have been invoiced, without
paying or accounting for the duty,
or shall make out, or pass,
or attempt to pass, through the custom house, any false, forged, or
fraudulent invoice, every such person, his, her, or their
aiders and abettors shall be deemed guilty of misdemeanor &c.,
punishable by fine and imprisonment."
The invoice mentioned in the two sections the 66th and 19th is a
very important document in the entry and passing of goods at the
custom house.
The 36th section of the act of 1799 made it the duty of the
person making the entry to produce to the collector the original
invoice in the same state in which it was received, and also to
make oath that it was the true, genuine, and only invoice
Page 58 U. S. 92
received, and was in the actual state in which it was received,
and that the deponent did not know of any other invoice or account
of the goods different from that produced. And the 1st section of
the duty act of 1818 further provided that no goods subject to duty
should be admitted to entry unless the original invoice of the same
was presented to the collector. The same provision is found in the
1st section of the act of 1823.
The 4th section of the last act also prescribes the oath
substantially like the one in the act of 1799 above referred to,
except somewhat enlarged.
The 4th section of the act of 1830, in the case of goods subject
to duty, provided that if any package should be found to contain an
article not described in the invoice, the same should be forfeited.
This provision is modified by the 21st section of the act of 1842,
which saves the forfeiture if the appraisers shall be of opinion
that the omission in the invoice was not with a fraudulent
design.
This brief reference to the several acts is sufficient to show
the great importance attached to this document in securing the
collection of the proper duties upon foreign importations and the
great care that has been taken to insure the production to the
collector of the true, genuine, original one, and that it should be
in the actual state and condition in which it was received by the
owner, consignee, or agent making the entry.
Now the 66th section of the act of 1799, dealing with this
document, forfeits the goods of the party entered at the custom
house, "if not invoiced according to the actual cost thereof at the
place of exportation, with a design to evade the duties."
The 19th section of the act of 1842 subjects the party to a
misdemeanor, and punishable as such, concerned in making an entry
who, with intent to defraud the revenue, "shall make out, or pass,
or attempt to pass, through the custom house, any false, forged, or
fraudulent invoice."
The former section has reference to the invoice so far as
material to determine the forfeiture, simply with a view to the
actual cost of the article at the place of exportation, without
regard to the question whether the document itself is the true and
genuine one or not. If the goods described in the invoice are
invoiced under the cost value with the design stated, the
forfeiture takes place. The object is to prevent frauds upon the
revenue in passing goods through the custom house by means of this
device at an undervaluation.
The latter provision is different, and has reference to the
frauds that may be committed in passing or attempting to pass the
goods upon the production of invoices not genuine -- not the true
original invoices, but those made out for the occasion with a
design to impose upon the collector and other officers.
Page 58 U. S. 93
The acts of 1799 and 1823 sought to prevent this species of
fraud by requiring the production of the original invoice, with the
oath of the party superadded that it was the true, genuine, and the
only the received, and in the actual state in which it was
received. This, although the party was subjected to the penalty of
perjury in case of false swearing, seems not to have afforded the
necessary protection, and the present provision, for the first
time, has been enacted subjecting the person to a misdemeanor who
shall, with intent to defraud the revenue, "make out or pass, or
attempt to pass, through the custom house any false, forged, or
fraudulent invoice," manifestly directed against the production and
use of simulated invoices and those fraudulently made up for the
purpose of imposing upon the officers in making the entry.
The whole scope of the section confirms this view. It first
makes the smuggling of dutiable goods into the country a
misdemeanor, and secondly the passing or attempt to pass them
through the custom house with intent to defraud the revenue by
means of false, forged, or fraudulent invoices; the latter is an
offense which, in effect and result, is very much akin to that of
smuggling, except done under color of conformity to the law and
regulations of the customs.
In the interpretation of our system of revenue laws, which is
very complicated and contains numerous provisions to guard against
frauds by the importers, this Court has not been disposed to apply
with strictness the rule which repeals a prior statute by
implication where a subsequent one has made provision upon the same
subject and differing in some respect from the former, but have
been inclined to uphold both unless the repugnancy is clear and
positive, so as to leave no doubt as to the intent of Congress,
especially in cases where the new lay may have been auxiliary to
and in aid of the old for the purpose of more effectually guarding
against the fraud. This is the doctrine to be found in the case of
Wood v. United States, already referred to, and in several
subsequent cases.
44 U. S. 3 How.
197;
57 U. S. 16 How.
150.
It has been supposed that the 8th section of the present act of
1846, which imposes an additional duty of twenty percentum for
undervaluation, works a repeal of the 66th section of the act of
1799. But this provision has been part of the revenue system ever
since the act of 1818, with the exception of a few years, and has
never been understood to have the effect claimed. On the contrary,
the section has been regarded as in force, and has been in
practical operation during all this time notwithstanding the
imposition of other additional duty. It was so considered in the
case of
Wood v. United States. This additional duty is
imposed in case the appraised value exceeds
Page 58 U. S. 94
the invoice price of the goods ten percentum, irrespective of
the question of fraudulent intent. Undoubtedly, if this additional
duty has been levied upon the goods by the government, it cannot
forfeit them under the 66th section, but if the collector is
satisfied that the undervaluation in the invoice has been made with
intent to evade the duties, instead of levying the additional duty,
a forfeiture may by declared. It will be observed, also, that the
forfeiture may be declared in cases of undervaluation where it is
less than ten percentum of the invoice price, provided the
fraudulent design exists.
We are satisfied that there is no provision in the act of 1842,
or in any of the duty acts, operating as a repeal of the 66th
section of the act of 1799, but that it still exists in full force
and effect. The judgment of the court below must therefore be
reversed, and record remitted for further proceedings, in
conformity to this opinion.
MR. JUSTICE CAMPBELL dissented.
This Court, in a series of cases arising upon a succession of
frauds perpetrated by a combination of persons in England and this
country, determined, that the 66th section of the act of 1799, and
the 4th section of the act of 1830, as modified by the 14th section
of the act of 1832, were not repugnant, but formed a harmonious
system for the prevention of frauds upon the revenue.
41 U. S. 16 Pet.
342;
44 U. S. 3 How.
211;
45 U. S. 4 How.
242,
45 U. S. 251.
The system formed was:
1. By the act of 1799, if an invoice contains goods that are
undervalued with design to evade duties, the goods so undervalued
are forfeited.
2. By the acts of 1830 and 1832, if a package or invoice is made
up with intent to defraud the United States, the package or invoice
thus made up is forfeited.
The court in its opinions declared that the latter statutes
apply only to the cases in which the fraudulent acts of the
importer were discovered by the officers of the customs, in the
opening and examination of the goods, in their transit through the
custom house, while the act of 1799 applies to the case of
completed entries under false invoices, no matter when or where the
detection took place, the suits were all for forfeitures where the
goods had passed through the custom house, with a regular entry and
payment of duties, but upon false invoices, that is, importing on
undervaluation.
In these entries, "a true and original invoice" was demanded by
the collector, under the acts of Congress then in force, and
simulated and fraudulent invoices were punished, and upon which the
assessment of duties was made. A true and original invoice, showing
the first cost of the imports, formed the legal
Page 58 U. S. 95
basis for the estimate of the duties under these acts, and the
production of this was the end which these enactments were designed
to secure.
The Tariff Act of 1842, 5 Stat. 548, was adopted after these
decisions.
Its title signifies that its purpose, among other things, "was
to change and modify existing laws imposing duties on imports," and
all conflicting acts and parts of acts were expressly repealed. The
frauds referred to in the cases cited, were accomplished by false
representations of the cost of the import, in the invoice, and the
danger of a forfeiture for an undervaluation did not prevent
them.
The act of 1842 abolishes the "cost price at the place of
exportation," as the basis of the estimate of duties, but employs
the "market value," or "wholesale price," and provides appraisers,
who were to ascertain these without regard "to any invoice
whatever." To perform this office they were armed with
inquisitorial powers, might call for merchants' books, letters,
invoices, and papers, and examine as witnesses the parties in
interest. False swearing was punished with the forfeiture of the
import and as a perjury.
Here, then, is the substitute for the invoice in the old system
in the ascertainment of the basis of the estimate, and these were
the sanctions employed to secure its integrity.
The "true and original invoice" would nevertheless afford
important evidence to ascertain the "market value," for in a
majority of cases this would be the "cost." The production of the
true invoice was still required in every entry. If the invoiced
value differed from the appraised or market value, ten percentum,
an additional penal duty now amounting to twenty percentum was
exacted. This was to compel a fair exhibition of a "true invoice."
This duty is collected without suit, depends upon the single fact
of a variation of ten percentum between the market and invoice
price, and has proved a most efficient instrument to prevent fraud.
Besides, the duty may be collected in goods at the invoice rate,
and thus the undervaluation would be corrected.
Finally,
"If any person shall willfully and with intent to defraud make
out, or pass, or attempt to pass through the custom house a false,
forged, or fraudulent invoice, every such person, his aiders and
abettors, shall be deemed guilty of a misdemeanor and shall be
fined in any sum not exceeding five thousand dollars or imprisoned
for a term of time not exceeding two years, one or both, at the
discretion of the court."
5 Stat. 565, Sec. 19
The invoice spoken of in this section of the act is one which
does not represent truly the facts the importer is bound to
disclose
Page 58 U. S. 96
at the date of his entry, and which are exhibited by an original
and true invoice, and where the misrepresentation, whether by
falsehood, forgery, or fraud, is with the design to evade the
duties. It is admitted that this act provides for cases never
before comprehended in any revenue law. For the attempt to defraud
is punished as well as the consummate effort. The system of the act
of 1842 is thus disclosed:
It relies upon a home valuation made by public officers, upon
evidence, instead of a representation of cost by the importer, as
the basis of value in the assessment, and it provides by forfeiture
and fine and imprisonment, against the false testimony of the
importer. It compels the production of the original and true
invoice by a penal duty, by fine and imprisonment, and the power to
take payment of duties in undervalued goods.
There are besides provisions directed against smuggling. The act
contains a selection from the various laws which had been passed by
Congress, whether in force or otherwise, and introduces new
securities for the collection of the revenue.
Every case provided for by the system first considered is
distinctly and efficiently provided for in the act of 1842.
The principle applicable to such a state of facts is laid down
by this Court in
Norris v.
Crocker, 13 How. 429.
"That where a new statute covers the whole subject matter of an
old one, adds offenses and prescribes different penalties for those
enumerated in the old law, that then the former statute is repealed
by implication, as the two provisions cannot stand together,"
and that where "a recent statute covers every offense found in
the former act," and prescribes a new and different penalty,
recoverable by indictment, "it is plainly repugnant."
The statement of the systems adopted at the different periods
will show that the importance of the 66th section of the act of
1799 had ceased, and that the retention of it, as a cumulative
penalty, would accomplish no good, and serve only to involve the
government in litigation, that the revenue officers might claim the
penalty.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby reversed, and that this cause be and the same is hereby
remanded to the said circuit court for further proceedings to be
had therein in conformity to the opinion of this Court.
