27 F. Cas. 1136 | U.S. Circuit Court for the District of Northern New York | 1850
By the 1st section of the act of March 2d, 1821, it is made the duty of the masters of vessels, except registered vessels, and of every person having-charge of any boat &c., and of the conductor or driver of any carriage or sleigh, and of every other person coming from any foreign territory adjacent to the United States, into-the United States, with merchandize subject to duty, to deliver, immediately on his arrival within the United States, a manifest of the cargo or loading of such vessel, boat or carriage, or of the merchandize so brought from the foreign territory, at the office of any collector or deputy-collector which shall be nearest the boundary line, &c.; and every such manifest shall be verified by the oath of the person delivering the same, which shall state that such manifest contains a full, just and true account of the kinds, quantities and values of all the merchandise sa brought from the foreign territory; and it is provided that in case of neglect or refusal, or of passing by or avoiding the office, the said merchandise, together with the vessel, boat or carriage, shall be forfeited to the United States, and the person offending shall be subject to a penalty of $400.
The act of March 3d, 1813, substantially reenacts this provision, changing the penalty of $400 to a penalty of four times the value of the merchandise.
The question presented is, whether this section has the effect necessarily to repeal the aforesaid provisions of the acts of 1821 and 1823. If it has, it must be by implication, on account of the repugnancy and inconsistency of the two provisions, as there is no repeal in express terms; and, in order to ascertain .this, it will be material to compare the two acts, and ascertain with care their import ■ and effect.
The offence, in the acts of 1821 and 1823, consists in the neglect or refusal to deliver at the office of the collector, or of his deputy, nearest the boundary line, or nearest the road or waters by which the goods are brought, the manifest prescribed in the act, of merchandise subject to duty brought into the United States from an adjacent foreign territory; or, the passing by and avoiding such office. The simple neglect or refusal to deliver the manifest, under the circumstances stated, or the passing by and avoiding the office, constitutes the offence, and subjects the party to the penalty.' The intent which accompanies the neglect or refusal, or the passing by and avoiding the office, is not made an element of the offence, or the subject of inquiry on the trial. If the fact of neglect or refusal appears, the penalty follows.
The offence, in the act of 1842, consists in knowingly and wilfully, and with an intent to defraud the revenue, smuggling or clandestinely introducing into the United States merchandize subject to duty, and which should have been invoiced, without paying or accounting for the duty; or, the making or passing, or attempting to pass, at the custom-house, a false, forged or fraudulent invoice. The act must be smuggling or clandestinely bringing into the United States merchandize subject to duty; and it must be done with a wilful intent to defraud the revenue. These are essential elements to constitute the offence, and must be established on the trial, to warrant a conviction.
Now, it seems to me that this analysis and comparison of the two acts show that they provide for an entirely distinct and different class of offences, depending upon a totally different state of facts and circumstances, and are to be regarded as separate and distinct parts of the system of the government
to prevent evasion and fraud in collecting the revenue. Their only identity consists in their object and puipose, to wit, to guard the ■customs. But, in this there is no repug-nancy; as penal acts for this purpose in thé statute book are numerous and constantly enforced. The repeal of a statute by implication is not favored by the courts, and is never allowed unless the repugnancy is plain and unavoidable, so that the two acts are incapable of being reconciled. Wood v. U. S., 16 Pet. [41 U. S.] 342. Here, both statutes may well stand together, as the acts constituting the offence in the former are not covered by the latter. The former prescribes particular regulations to be observed on the frontiers by the importers of foreign merchandize, with a view to guard the revenue, annexing a penalty in case of a non-observance. The violation of these comes far short of making out the offence under the latter. ■ Both are directed against the importation of foreign merchandise without payment of the duty, but under a different state of facts and circumstances, and prescribing a punishment according to the aggravation of each case respectively. Hence, where the act is done knowingly and wilfully, and with an intent to defraud, fine and imprisonment are annexed.
It is net necessary to say that the latter act is cumulative; indeed, it cannot be properly so regarded, because it is not for the same offence. Neither is it necessary to say that the party could be punished under each statute for the same importation of merchandise. That is a very different question from the one presented, and which I have been considering. The same act, committed under different circumstances, may be the subject of different degrees of punishment, as an assault, and an assault with intent to kill; but, it by no means follows that the party is punishable by the infliction of each penalty.
But, independently of the above views, there is also another upon which I am of opinion that the judgment below must be reversed.
By the 19th section of the act of 1842, the punishment is inflicted for smuggling goods subject to duty, and which should have been invoiced; and for making, or passing or attempting to pass at the custom-house, false, forged or fraudulent invoices.
The act of congress of the 1st of March, 1823 (3 Stat. 729), requires that an. invoice shall be delivered to the collector when an entry of goods is made at the custom-house, giving to him, in certain cases, a limited discretion as to the time when it is to be produced; and it is against the smuggling of goods which, if regularly imported, should have been accompanied with this invoice, and against the fabrication of fraudulent invoices, that the 19th section of the act of 1842 is directed.
Now, the act of 1821 refers to a different class of importations. No formal entry by
If, in view of the act of March 1st, 1823, which requires that an invoice should accompany the entry of goods at the custom-house, there could be any doubt that the construction I have put upon the act of 1821 is correct, all doubt is removed by the act of March 3d, 1823, which, though passed after the act of March 1st, 1823, yet substantially re-enacts the first section of the act of 1821, and changes the penalty, thereby re-affirming that act, which dispenses with the invoice.
It is apparent that an essential element to constitute the offence under the 19th section of the act of 1842 is wanting, in the importation of goods provided for in the act of 1821. There is nothing in the latter act requiring that they should be invoiced. The system is a distinct one, applicable to the frontiers adjacent to foreign territories. I am constrained, therefore, to differ from the court below, and to reverse the judgment there rendered. Judgment reversed, and venire de novo.
