delivered the opinion of tbe court.
The facts of this case, as agreed upon, were these: That Burgess was collector of internal revenue for tbe third collection district of Virginia, and in that capacity exacted from and received of Salmon & Hancock, and paid into tbe treasury of the United States, the sum of $377.80, as an additional tax of four cents a pound on a quantity of tobacco belonging to them. It was thus exacted on the third day of March, 1875, under the act of that date, which provides as follows : —
“ That sect. 3368 of the Revised Statutes be amended by striking out the words ‘twenty cents a pound,’ and inserting in lieu thereof the words ‘twenty-four cents a pound.’” . . . “Prоvided, that the increase of tax herein provided for shall not apply to tobacco on which the tax under existing laws shall have been paid when this аct takes effect.” 18 Stat. 339.
The act contains also the provision following, viz.: —
“ Every person who removes from his manufactory tobacco without the proper stamp being affixed and cancellеd . . . shall, for each offence, be fined not less than 81,000 and not more than 85,000, and be imprisoned not less than one year and not more than two years.”
*382 The tobacco in question was stamped, sold, and removed for consumption or use from the place of manufacture, and beyond the control of Salmоn & Hancock, in the forenoon of March 3, 1875, and the above-named act of Congress was approved in the afternoon of that day, after the stamping and removal of this tobacco, which, when removed, had been stamped at twenty cents a pound. Payment of the additional four cents a pound was made under protest, and an appeal to the commissioner of internal revenue regularly taken and overruled.
The manufacturers brought suit to rеcover back the amount, and recovered judgment in the court below. The collector thereupon sued out this Writ of error.
The case presеnts but a single point: Can a manufacturer be punished, criminally and civilly, — civilly here, — for the violation of a statute, when the statute was not in force at the time thе act was done ? In other words, Can a person be thus punished when he did not contravene the provisions of the statute? In still other words, Can one be punished for offending against the provisions of a statute from the effects of which he was expressly exempted ?
We are relieved by the agreed statement, tо which reference is made, from examining a question of importance, and perhaps of difficulty, respecting the pwnctum temporis when'a statute takes effect. Does it, as the collector contends, have operation in the present instance on the third day of March, 1875, and cover the whole of that day, commencing at midnight of March the secоnd? If the time may be inquired into, to ascertain at what hour or what fraction of an hour of the day the form of the law becomes complete, is it to be аscertained by the court as a question of law, or to be decided as an issue of fact?
It is agreed by the parties to the record that in fact the duty of twenty per cent had been paid on the tobacco in question, and it had been removed from the storehouse, before the act of March 3,1875, tоok effect; and we content ourselves by acting upon that agreement.
We are of opinion that the government must fail, upon the facts agreed upon ; to wit, that the duty of twenty per cent had *383 been paid and the tobаcco bad been removed before tbe act had been approved by the President. The seventh section of article 1 of the Constitution, of thе United States provides that every-bill which shall have passed the House of Represent-, atives and the Senate shall, before it becomes a law, bе presented to the President of the United States. If he approve he shall sign it, but if not he shall return it, with his objections, to that House in which it originated, . . . who shall proсeed to reconsider it. . . . If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return, in which case it shall not be a law.
In the present case, the President approved the bill; and the time of such approval points out the earliest possible moment at which it could become a law, or, in the words of the aсt of March 3, 1875, at which it could take effect.
In
Lapeyre
v.
United States
(
In the
Matter of Howes
(
*384 In the Matter of Welman (20 id. 653), the question was the same, and decided in the same way. While stating the general rule as above, the court say they agree with Lord Mansfield in Coombs v. Pitt (4 Burr. 1423), that in particular cases the very hour may well be shown when it need аnd can be done.
Arnold
v.
United States
(
See the case of Richardson (
In the present case, the acts and admissions of the government establish the position that the duties exacted by law had been fully paid, and the goods had been surrendered аnd transported before the President had approved the act of Congress imposing an increased duty upon them.
To impose upon the owner of the goods a criminal punishment or a penalty of §877 for not paying an additional tax of four cents a pound, would subject him to the operation of аn ex post facto law.
An
ex post facto
law is one which imposes a punishment for an act which was not punishable at the time it was committed, or a punishment in addition to that then prescribed.
Carpenter et al.
v.
Commonwealth of
Pennsylvania,
Had the proceeding against Salmon & Hanсock been taken by indictment instead of suit for the excess of the tax, and the one was equally authorized with tbe other, the proceeding would certаinly have fallen within the description of an ex post facto law.
In
Fletcher
v.
Peck
(
In
Cummings
v.
Missouri
(
To the same purport is Pierce v. Carskaden, 16 id. 234.
The cases cited hold that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal. Cummings v. Missouri, supra; Potter’s Dwarris, 162, 163, note 9.
Judgment affirmed.