Burgess v. Salmon, 97 U.S. 381

Burg es s v . Salmon .

In the forenoon of March 3, 1875, A. stamped, sold, and removed for consumption or use from the place of manufacture certain tobacco, which, under sect. 3368 of the Revised Statutes, was subject to a tax of twenty cents per pound. On the afternoon of that day, the President approved the act of March 3, 1875 (18 Stat. 339), increasing the tax to twenty-four cents per pound, but providing that such increase should “not apply to tobacco on which the tax under existing laws shall have been paid when this act takes effect.” Held, that the increase of tax under that act did not apply to the tobacco so stamped, sold, and removed.

Error to the Circuit Court of the United States for the Eastern District of Virginia.

The facts are stated in the opinion of the court.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr . Just ice Hunt delivered the opinion of the court.

The facts of this case, as agreed upon, were these: That Burgess was collector of internal revenue for the third collection district of Virginia, and in that capacity exacted from and received of Salmon & Hancock, and paid into the 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 4 twenty-four cents a pound.’ ” . . . “ Provided, 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 act 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 cancelled . . . shall, for each offence, be fined not less than $1,000 and not more than $5,000, and

imprisoned not less than one year and not more than two years.”

The tobacco in question was stamped, sold, and removed for consumption or use from the place of manufacture, and beyond the control of Salmon & 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 recover back the amount, and recovered judgment in the court below. The collector thereupon sued out this writ of error.

The case presents 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 the 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, to which reference is made, from examining a question of importance, and perhaps of difficulty, respecting the punctum 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 second? 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 ascertained 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 o March 3,1875, took effect; and we content ourselves by acting upon that agreement.

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 act of March 3, 1875, at which it could take effect.

In Lapeyre v. United States (17 Wall. 191), it was said obiter, “ The act became effectual upon the day of its date. In some cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible.” The question involved in that case was whether a proclamation issued by President Johnson, bearing date of June 24, 1865, removing certain restrictions upon commercial intercourse, took effect on that day, or whether it took effect on the day it was published and promulgated, which was on the 27th of the same month. It was held by a majority of this court that it took effect from its date. The question was upon the 24th or the 27th of June, and the point of the portion of a day was not involved. While the general proposition may be true, that where no special circumstances exist, the entire day on which the act was passed may be included, there is nothing m that case to make it an authority on the point before us.

In the Matter of Howes (21 Vt. 619), it appeared that the Bankrupt Act was repealed March 3, 1843. Howes presented is petition on that day, and it was held that he was too late, t at on questions of that nature there can be no divisions of a day.

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 and can be done.

Arnold v. United States (9 Cranch, 104) is in affirmance of the same general principle. The act of July 1, 1812, there discussed, provided “ that an additional duty of one hundred per cent upon the permanent duties now imposed by law . . . shall be levied and collected on all goods, wares, and merchandises which shall, from and after the passage of this act, be imported into the United States from any foreign port or place.” The goods were brought into the collection district of Providence on the first day of July, 1812. The court say, “ The statute was to take effect from its passage, and it is a general rule that, where the computation is to be made from an act done, the day on which the act is done is to be included.”

See the case of Richardson (2 Story, 571), decided by the same judge, sustaining the view just taken.

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 and 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 $377 for not paying an additional tax of four cents a pound, would subject him to the operation of an 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, 17 How. 456.

Had the proceeding against Salmon & Hancock been taken by indictment instead of suit for the excess of the tax, and the one was equally authorized with the other, the proceeding would certainly have fallen within the description of an ex post facto law.

In Cummings v. Missouri (4 Wall. 277), it was held that the passage of an act imposing a penalty on a priest for the performance of an act innocent at the time it was committed, was void.

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.

Pet ti gre w v . Unit ed States .

raised as to the jurisdiction of this court, because it does not exceed $2,000.

If it is an action to enforce a revenue law of the United States, we have jurisdiction without regard to amount. Rev. Stat., sect. 699. If it is not such an action, we have not.

The counts in the original complaint are very clearly counts on a contract of bailment and for money had and received. But a demurrer to the declaration was sustained, and the case was tried on an amended declaration.

The amended declaration sets forth the seizure, while in possession of the defendants, of ninety caddies of tobacco as forfeited to the United States, on account of false and fraudulent stamps and inspection marks found there by Rolf S. Sanders, a collector of internal revenue; that said Sanders and defendants having entered into an unlawful and unauthorized agreement that defendants should sell the tobacco and hold the proceeds of the sale subject to the decision of the proper court, in proceedings to be instituted therein for the condemnation of the tobacco, said agreement was void; by reason whereof the defendants became liable to the United States for the value of the tobacco, which they have refused to pay. This is repeated in the second count, and the third is for money had and received. The substance of this is, that the tobacco being forfeited for a violation of the revenue law, and a seizure made, and the goods left with the defendants, the contemporaneous agreement is void, and the defendants are proceeded against in personam for the value of the goods so left with them, which cannot now be found. It would be a very narrow and technical definition of the phrase “enforcement of any revenue law ” which did not recognize this action as one brought for that purpose. If there had been no revenue law which made this tobacco liable to seizure, the complaint would be bad on demurrer. The foundation of the action is the right which the revenue law vests in the United States to this property, and it is the enforcement of this right that is sought in this action. This was clearly the view which the court took of the matter, and in that view of it instructed the jury as follows: —

“ And if the proper officer seized it as forfeited, and the defendants sold the same by direction of the officer seizing it, and received the money, and had not paid it, or any part thereof, to the government, they remained liable for the amount so received by them, and they should find a verdict for the plaintiffs.”

The judge evidently understood that he was enforcing the revenue law against a person unlawfully dealing with property which had been found in his possession forfeited to the government by reason of a violation of that law. We think this court has jurisdiction, under the section of the Revised Statutes cited.

The third plea of the defendants sets -out the facts that, up to the time the goods were seized, they held them on sale for commission for Glazier, Luko, & Co., of St. Louis, and knew nothing of the causes of the alleged seizure; that at the request of Sanders, the officer who made the seizure, they consented to sell the goods, and hold the proceeds subject to proceedings in court to condemn them; that defendants were directed by Sanders to sell the tobacco, because it would become worthless if detained until the end of the suit; that they did sell the tobacco, and while the proceeds were in their hands a suit was commenced against them for the money, which was defended by Glazier, Luko, & Co., and dismissed by the district attorney after plea filed; that after retaining the money for nearly four years, and no other suit being brought for the money, or other proceedings against the tobacco, or any demand of them, they paid over the money to the parties from whom they had received the tobacco. To this plea a demurrer was filed and overruled, and issue was taken on it. The bill of exceptions shows that testimony was offered tending to sustain every allegation of the plea; but by giving the instruction copied above, the court, in effect, held that, if the jury believed the plea to be sustained by the evidence, it was no defence.

In this we think the court erred.

Undoubtedly, the officer could have required them, as a condition of leaving the property where he found it, to pay the money it sold for to him, or into the treasury, or into the registry of the court. But he did not. And we see no reason to hold that it was not competent for the defendants to retain the property on the terms which he proposed. If he had required them to sell it as property of the United States, and pay them the proceeds, they might have relieved themselves of all trouble by refusing. The officer may not have performed his duty. It was probably his duty when he made seizure of the property to deliver it to some other officer of the government, and have it libelled at once, and a warrant of seizure issued. But this neglect of his duty did not make void the promise of the defendants to take suitable care of the property, and hold it ready for such order as the court which might take jurisdiction of the proceeding should make.

This is the honest and fair view of the subject, and we think it conflicts with no rule of law.

The instructions of the judge were in conflict with this view, and the judgment must, therefore, be reversed, and a new trial granted; and it is

'Na .woq v. Ritt er .

Err or to the Circuit Court of the United States for the Southern District of Illinois.

“ And whereas, by virtue of the powers granted to counties and cities by the above-recited provisions of said supplemental act, the common council of the city of Nauvoo did, on the 4th of June, a .d . 1853, make an order submitting it to the legal voters of said city, at an election to be held at the usual place of holding elections in said city, on the thirtieth day of July, a .d . 1853, to ascertain the wishes of the people of said city in reference to the subscription by the common council of said city to the capital stock of the Warsaw and Rockford Railroad Company to the amount of $25,000, to be paid in bonds of said city, having twenty years to run, and bearing an annual interest of eight per cent, payable semi-annually.

“ And whereas said election was held agreeably to said order, thirty days’ previous notice having been given, as required by said act aforesaid, and the returns of said elections in due form made to the city council, who canvassed at the regular meeting held on the first day of August, a .d . 1853, when it appeared there had been cast for subscription a large majority of the votes of said city, the number of votes given for subscription being a large majority of all the votes polled at the last general election in said city, and a muc i larger vote than that required by the act aforesaid to authorize said subscription.”

Then follow sections authorizing the mayor to make the subscription, and providing for the execution and delivery o the bonds and coupons.

The defendant interposed six pleas. 1. The general issue.

2. That the bonds were issued without authority of law. 3. That the common council of the city did not, at any time prior to the issue of the bonds, order an election to be held for the purpose of submitting to the qualified voters the question whether or not the subscription should be made, as provided by law. 4. That the city council did not on June 4, 1853, make such an order, submitting such question to the legal voters at an election to be held at the usual place of holding elections in said city, July 13, 1853. 5. That the thirty days’ notice of the election was not given. 6. That no election was held prior to the issue of the bonds, at which a majority of the qualified voters — taking as a standard the number of votes cast at the last general election prior thereto — voted for such subscription, as stated in the ordinance referred to in the bonds, and printed on the back of each of them.

The plaintiff demurred to the second, third, fourth, and fifth pleas, and the demurrer was sustained. There was neither a replication nor a demurrer to the sixth plea.

The case was tried by the court without a jury, and judgment rendered for the plaintiff, whereupon the city sued out this writ of error.

Mr. J. B. Henderson for the plaintiff in error. No counsel appeared for the defendant in error.

Mr . Chief Just ice Waite delivered the opinion of the court.

By a statute of Illinois “ in regard to practice in courts of record, ’ passed Feb. 22, 1872, the plaintiff in a suit upon a written instrument is required to file with his declaration a copy of the instrument sued upon. Rev. Stat. Ill. (1874), c. 110, p. 777, sect. 18. In obedience to this statute, the p aintiff in this case filed with his declaration copies of the onds and coupons declared upon. In this way, we think, the bonds became a part of the pleadings in the case.

provisions of the act authorizing a subscription, and that upon a canvass of the votes “ it appeared that there had been cast for subscription a large majority of the votes of said city, the number of votes given being a large majority of all the votes polled at the last general election in said city, and a much larger vote than that required by the act aforesaid to authorize said subscription.” With this recital, in effect, upon the face of the bonds in the hands of an innocent holder, it was certainly not error in the court below to sustain a demurrer to the second, third, fourth, and fifth pleas, which simply tendered an issue as to the authority of the city to issue the bonds, and as to the fact of the election.

The record does not show that there was either a demurrer or replication to the sixth plea. In Laber v. Cooper (7 Wall. 565), we held that such an objection came too late after a trial and verdict below as if the pleadings had been perfect in form.