# United States v. Sixty-Seven Packages of Dry Goods

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## Dissenting Opinion

    Campbell
United States Supreme Court
58 U.S. 85
United States v. Sixty-Seven Packages of Dry Goods
THIS case was brought up, by writ of error, from 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.
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 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 per centum 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 per centum, 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, in so far 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 1st March, 1823, imposing a penalty of additional duties on goods entered under fraudulent invoice; and in so far 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 the 2d March, 1799, was, to the same extent as aforesaid, repugnant to, and inconsistent with, the 17th section of the act of 30th 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, 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.
It was argued by Mr. Cushing (attorney-general) for the United States. No counsel appeared for the appellee.
Mr. Cushing reviewed the provisions of the act of March 1, 1823, 13th and 15th sections, (3 Stat. at Large, 734, ch. 2,) and the 17th section of the act of 30th August, 1842, (5 Stat. at Large, 564, ch. 270,) and then proceeded with the argument.
Such are the provisions of the statutes relied on as repealing, by implication, the 66th section of the act of 1799.
It is to be noted that the said 66th section enacts the forfeiture of the goods, 'or the value thereof,' of which entry shall have been made in the collector's office, 'with design to evade the duties thereupon, or any part thereof.' But whether the collector shall or shall not seize and prosecute the goods as forfeited, or shall collect and receive the duties arising upon the valuation, when ascertained by two reputable merchants to be appointed for that purpose, as required in that 66th section, are matters left to the judgment and discretion of the collector. If he retains the goods, and prosecutes as for a forfeiture thereof, or the value thereof, he acts at his peril; it is his own act, for which he will be personally responsible in damages, if he misjudges and seizes, and prosecutes by wrong, and without probable cause, upon an allegation of 'design to evade the duties thereupon.' The quo animo with which the entry of the goods, not invoiced according to their actual cost, shall have been made, the design to evade the duties, constitute the offence for which the forfeiture of the goods or their value is declared in this 66th section. The hazard which a collector must incur personally, by prosecuting for a forfeiture, is not forefended by the appraisement made by two reputable merchants, because 'such appraisement shall not be construed to exclude other proof upon the trial of the actual and real cost of the said goods at the place of exportation.' Moreover, the two merchants are not to inquire as to the 'design to evade the duties.'
By this 66th section, the duties are to be paid according to such valuation as shall be ascertained, not according to the invoiced value, if the collector does not deem it expedient to prosecute for a forfeiture. So, under the acts of 1823 and 1842, relied upon, the collector has an election to prosecute for a forfeiture or not, upon allegation of 'design to evade the duties.' If he elects not so to prosecute, then he must have collected under the act of 1823, or under the act of 1842, the additional duty of fifty per centum.
So the 9th section of the act of May, 19, 1828, (4 Stat. at Large, 274, ch. 55,) imposed an additional duty of fifty per centum, if the appraised value of the goods at the time purchased, and place from which they were imported into the United States, exceed the invoiced value by ten per centum. Yet this statute did not take away the election of the collector to prosecute for a forfeiture of the goods, or their value, under the 66th section of the act of 1799, if, in his opinion, the goods had been entered at the custom-house, upon an invoice undervaluing them, 'with design to evade the duties thereupon, or any part thereof.'
In the act of 30th July, 1846, (9 Stat. at Large, 43, ch. 74, sec. 8,) it is made the duty of the collector to cause the dutiable value of imports 'to be appraised and estimated and ascertained in accordance with the provisions of existing laws; and if the appraised value thereof should exceed, by ten per centum or more, the value so declared on the entry, then, in addition to the duties imposed by law on the same, there shall be levied, collected, and paid, a duty of twenty per centum ad valorem on such appraised value.' This act does not take away the election of the collector to prosecute for a forfeiture of the goods, or their value, under the 66th section of the act of 1799, if in his judgment he can sustain the charge, that the goods were entered at an undervaluation, 'with design to evade the duties thereupon, or any part thereof.'
The statutes which impose an additional (or penal) duty, in case the estimated and ascertained value of the goods exceeds by a certain per centum their value, as declared in the entry with the collector, do not require, as a prerequisite to the collection of such additional (or penal) duty, that the entry shall have been made 'with design to evade the duties thereupon.' The 66th section of the act of 1799, defines a higher offence against the revenue laws; it requires that the entry of the goods shall have been made 'with design to evade the duties thereupon,' and for such design inflicts the forfeiture of the goods, 'or the value thereof,' if the collector shall prosecute for and establish such design.
In the case of Wood v. The United States, January term, 1842, (16 Pet. 363-366,) the question of the repeal of the 66th section of the act of 1799, by implication, arising out of subsequent statutes, is fully discussed, and every position taken by the judge of the district court is, in effect, negatived. It is useless to say more in this case, than that the principles decided in Wood v. The United States are applicable to the acts of 1842 and 1846, although these have been passed subsequently to that decision of the supreme court.
There is no positive repugnancy between the provisions of the 66th section of the act of 1799, and those of the subsequent laws. These new laws are merely affirmative, cumulative, and auxiliary to the 66th section of the act of 1799; not inconsistent with a forfeiture of the goods or their value, where an entry shall have been made in the office of the collector 'with design to evade the duties thereupon, or any part thereof.' There is nothing in any of the statues, subsequent to the act of 1799, to compel the collector to demand and receive the duties, with the additional or penal duties, in cases where goods are entered for duty at an undervalue, 'with design to evade the duties thereupon, or any part thereof;' nor to inhibit the collector from prosecuting for the forfeiture of the goods, or their value.
'The provision in the 66th section is intended to suppress fraud upon the revenue. The other acts are designed to be auxiliary to the same purpose. There is no repugnance between the provisions; and to construe the latter, as repealing the former, would be to construe provisions to aid in the detection of fraud in such a manner as to promote fraud, by cutting down provisions of a far more general and important character, and essential to the security of the revenue.' Wood v. The United States, 16 Pet. 365, 366.
Mr. Justice NELSON delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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