THE UNITED STATES, PLAINTIFFS IN ERROR, v. SIXTY-SEVEN PACKAGES OF DRY GOODS. JULES LEVOIS, CLAIMANT.

This is a writ of error to the circuit court of the United States for the eastern district of Louisiana.

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.

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the facts charged in the information, the court charged the jury, that the 66th section of the duty act of 1799 was repealed by force of subsequent statutes, and that, at present, there was no law in existence providing for a forfeiture of the goods for the causes set forth in the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 against the 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 wilfully, 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 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.

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 offence 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 mumerous 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. the United States, already referred to, and in several subsequent cases. 3 How. 197; 16 Ib. 150.

It has been supposed that the 8th section of the present act of 1846, which imposes an additional duty of twenty per centum 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. The United States. This additional duty is imposed in case the appraised value exceeds the invoice price of the goods ten per centum, 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 per centum 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. 16 Pet. 342; 3 How. 211; 4 Ib. 242, 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 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. at Large, 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 per centum, an additional penal duty now amounting to twenty per centum 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 per centum 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, wilfully 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. at Large, 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 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, but 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 offences, 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 offence 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.

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.