United States v. Claflin

• Citation: 97 U.S. 546,24 L.Ed. 1082
• Parties: UNITED STATES v. CLAFLIN
• Decision Date: 01 October 1878
• Court: United States Supreme Court

97 U.S. 546

24 L.Ed. 1082

UNITED STATES v. CLAFLIN.

October Term, 1878

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

The Attorney-General and The Solicitor-General for the United States.

Mr. Joseph H. Choate, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

This was an action of debt brought by the United States to recover the amounts of several forfeitures or liabilities alleged to have been incurred by the defendants in consequence of their having received, concealed, and bought goods, wares, and merchandise illegally imported, knowing them to have been illegally imported and liable to seizure. The declaration contains thirty counts. Of these the first and every alternate odd-numbered one is founded on the act of Congress of March 3, 1823. 3 Stat. 781, c. 588 sect. 2. They charge illegal importations at different times between Dec. 1, 1871, and Sept. 1 1873, inclusive; also receipts, concealments, or purchases of the goods by the defendants between the first-mentioned date and Sept. 2, 1873, inclusive, with knowledge that the goods had been illegally imported. All the other counts, those even-numbered, are founded upon the fourth section of the act of July 18, 1866. 14 id. 179, c. 201, sect. 4. The importations, receipts, concealments, or purchases charged in these counts are averred to have taken place at the times designated in the odd-numbered counts.

To the entire declaration the defendants interposed a general demurrer, upon which the Circuit Court gave judgment in their favor. Whether this judgment was correct is the underlying question we have now to consider. That the counts framed under sect. 4 of the act of 1866 cannot be sustained is too clear for debate, and the government very properly has abandoned them as unsustainable. That act contemplated a criminal proceeding, and not a civil action of debt. It imposed a penalty for receiving, concealing, buying, selling, or in any manner facilitating the transportation, concealment, or sale of goods illegally imported. The penalty was a fine on conviction, not exceeding $5,000 nor less than $50, or imprisonment, or both, at the discretion of the court. It is obvious, therefore, that its provisions cannot be enforced by any civil action, certainly not in an action of debt.

The single question left, then, is whether the counts founded on the act of 1823 are sustainable. The second section of that act was as follows:——

'That if any person or persons shall receive, conceal, or buy any goods, wares, or merchandise, knowing them to have been illegally imported into the United States, and liable to seizure by virtue of any act in relation to the revenues, such person or persons shall, on conviction thereof, forfeit and pay a sum double the amount or value of the goods, wares, or merchandise so received, concealed, or purchased.'

If this section was in force in 1871, 1872, and 1873, when the illegal importations alleged in this case were made, it is not denied that the odd-numbered counts in the declaration have a sufficient basis on which to stand, and that the demurrer should have been overruled. But the defendants contend that the section was repealed by the act of 1866, so far as it can affect transactions occurring after the passage of the later act; and such was the opinion of the Circuit Court. The act of 1866 did not expressly repeal the second section of the act of 1823. The forty-third section repealed several acts specified by it, some prior and others subsequent to the act of 1823, and concluded with the sweeping clause, 'and all other acts and parts of acts conflicting with or supplied' by it. If, therefore, it worked a repeal of the said second section, it must be because it supplied the provisions of that section, or was in conflict with them. And such supply and repugnance must plainly appear. The Circuit Court placed some reliance—their principal reliance, indeed—upon the action of Congress when the Revised Statutes were enacted in 1874. Those statutes undoubtedly repealed the act of 1823, if it had not been repealed before. In sect. 5596 it was thus enacted:

'All acts of Congress passed prior to said first day of December, 1873, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such revision having been repealed or superseded by subsequent acts, or not being general or permanent in their nature.'

As a portion of the act of 1823 was carried into the Revised Statutes (see sect. 3099), and the second section was not, that section was covered by the repealing clause, unless it had been repealed before. But that clause indicates a belief on the part of Congress that it had been previously repealed, and, doubtless, that it was repealed by the act of 1866. The indication is found in the words that declare all parts of acts not contained in the revision, but other portions of which are, to have been repealed or superseded by subsequent acts. This, however, though entitled to great respect, ought not to be considered as more than an expression of opinion or a recital of belief. It is not in the form of an enactment. It is not a declaration of congressional will. It is not a rule for the future. It certainly is not conclusive that the second section was repealed or superseded by the act of 1866, or by any other act prior to the enactment of the revision. Whether a statute was repealed by a later one is a judicial, not a legislative question. And even a declaratory act, or an act directing how a former act shall be construed, is inoperative on the past, though controlling in future. Postmaster-General v. Early, 12 Wheat. 136.

It is, therefore, still a question of judicial construction whether the second section of the act of 1823 was in fact repealed by the act of 1866, that is, whether it was in conflict with that later act or supplied by it; for, as we have said, the act of 1866, while repealing expressly certain prior acts particularly described (the act of 1823 not being one of them), repealed only such other acts or parts of acts as were in conflict with it or were supplied by it.

In Stockwell v. United States (13 Wall. 531), the question was before us. That was an action of debt brought by the United States to recover double the value of certain importations alleged to have been illegally made, and received, concealed, or bought by the defendants, with knowledge that the goods had been illegally imported. The action was founded on the second section of the act of March 3, 1823, as are the counts we are now considering. The importations were made and the goods were received and sold before the passage of the act of 1866. We held that the action would lie, and, as the jury found the defendants knew the goods had been illegally imported, that they had incurred the liabilities imposed by the second section of the act of 1823. Hence we gave judgment in favor of the United States. We are still of the opinion that the judgment was correct; for even if the act of 1823 was repealed by that of 1866, the liabilities incurred under it before its repeal were preserved, if not by the forty-fourth section of the repealing act, certainly by the act of Feb. 18, 1867, entitled 'An Act supplementary to an act to prevent smuggling, and for other purposes,' approved July 18, 1866. The first section of that act enacted as follows:——

'That the provisions of the act of Congress approved July 18, 1866, entitled 'An Act to prevent smuggling, and for other purposes,' shall be so construed as not to affect any right of suit or prosecution which may have accrued under any prior act of Congress repealed or supplied by said act previous to July 18, 1866; and all such suits or prosecutions as have been or shall be commenced under such prior acts for acts committed previous to July 18, 1866, shall be tried and disposed of, and judgment or decree executed, as if said act of July 18, 1866, had not been passed, any thing therein contained to the contrary notwithstanding.'

As the offences charged in that case occurred before the act of 1866 was passed, they were within this declaratory act, and therefore the act of 1823 was enforceable against the offenders.

The act of 1867 was not called to our notice when the case of Stockwell v. The United States was before us. If it had been, it would have been unnecessary to consider at all whether the act of 1866 had repealed any former acts. But in the absence of any reference to it, we felt called upon to inquire whether the act of 1823 was repealed by the enactment of 1866; and we held that its second section was not, certainly not so...