HENDERSON'S TOBACCO, 78 U. S. 652 (1870)

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U.S. Supreme Court

Henderson's Tobacco, 78 U.S. 11 Wall. 652 652 (1870)

Henderson's Tobacco

78 U.S. 652


1. Although a former statute is impliedly repealed by a subsequent one plainly repugnant to it or so far as the later statute's' making new provisions is plainly intended for a substitute for the earlier one, yet a repeal is not to be implied where the powers or directions under the later acts are such as may well subsist together with those under the earlier.

2. Held, on an application of this principle, that the Act of July 20, 1868,

Page 78 U. S. 653

imposing taxes on distilled spirits and tobacco, did not repeal the proviso to the 25th section of the Internal Revenue Act of March 2, 1867, which limits to twenty days the time for commencing proceedings to enforce forfeitures.

3. But the proviso has no application to any other forfeitures than such as are provided for in it.

This was an information under the Act of July 20, 1868, [Footnote 1] entitled "An act imposing taxes on distilled spirits and tobacco, and for other purposes," to enforce a forfeiture, under the revenue laws, of certain caddies of tobacco which had been seized on the 17th of August, 1869, and which were claimed by Henderson & Co. The information contained three counts. The first was in substance that since the first day of January, 1868, to-wit from January 1, 1868, to August 17, 1869, the claimants, being the owners of a tobacco factory, with its furniture, manufactured, prepared, and placed in caddies manufactured leaf tobacco, and sold and removed the same without placing on the caddies the proper revenue stamps and without having paid the special tax required by law, but that they did place on the caddies of tobacco so manufactured and so sold and removed half-stamps -- that is to say revenue stamps cut in two parts, each part of said stamps being used on separate caddies, and each half-stamp so covered by a whole stamp as to make the half stamp so used resemble and be taken for a whole stamp. The second count was for substantially the same offense. The third was for making false and fraudulent entries of the amount of tobacco sold by them annually, and false and fraudulent entries of the quantity manufactured by them, and false and fraudulent reports of their annual sales, in violation of their duty under the law.

The claimants pleaded to this information that it was not filed until more than twenty days after the caddies had been seized by the collector for the alleged violations of law. To the plea there was a demurrer, which was overruled by the

Page 78 U. S. 654

court, and the information was dismissed. The record was therefore supposed to present the question whether proceedings to enforce a forfeiture for such violations of the revenue laws as were charged in the information must be commenced within twenty days from the time of the collector's seizure, and this was the only point argued. The claimants, in support of an affirmative answer to this question, relied upon the proviso to the 25th section of the Act of Congress of March 2, 1867, [Footnote 2] entitled "An act to amend existing laws relating to internal revenue, and for other purposes." This 25th section enacted that the owner, agent, or superintendent of any still, boiler, or other vessel used in the distillation of spirits who should neglect or refuse to make true and exact entry and report of the same or to do, or cause to be done any of the things by law required to be done concerning distilled spirits shall, in addition to other fines and penalties by law provided, forfeit for every such neglect or refusal all the spirits made by or for him, and all the vessels used in making the same, and the stills, boilers, and other vessels used in making the same, and all materials fit for use in distillation found on the premises. It also authorized the collector to seize such spirits, vessels, and materials and hold them until a decision thereon according to law. Then followed this proviso:

"Provided that proceedings to enforce said forfeiture shall be commenced by such collector within twenty days after the seizure thereof, and the proceedings to enforce said forfeiture of said property shall be in the nature of a proceeding in rem in the circuit or district court of the United States for the district where such seizure is made, or in any other court of competent jurisdiction."

The 9th section of the same act enacted that "all proceedings relating to forfeiture and sale of distilled spirits shall apply to tobacco, snuff, and cigars."

In answer to this, it was contended on behalf of the United

Page 78 U. S. 655

States that the proviso relied upon by the claimants was repealed by the Act of July 20, 1868. It was admitted that the act of 1868 contained no words expressly repealing either the act of 1867 or that of 1864, to which the one of 1867 was a supplement, but the argument was that it covered the ground of the preceding statute and that no limitation was contained in the latter statute with regard to the time in which the proceeding of forfeiture shall be commenced.

There was no doubt that the latter act did change numerous provisions of the former act, and insofar cover its ground. In the sections under which this information was filed there were provisions for the punishment of persons manufacturing tobacco or snuff in violation of the internal revenue laws not in the former acts, and which did not make reference to the proceedings for the punishment of the illegal manufacture of distilled spirits.

The act of 1868 repealed in terms [Footnote 3] "all acts and parts of acts inconsistent" with its own provisions, enacting, however,

"That all the provisions of said act shall be in force for levying and collecting all taxes properly assessed, or liable to be assessed, or accruing under the provisions of former acts, the right to which has already accrued or which may hereafter accrue under said acts, and for maintaining, continuing, and enforcing liens, fines, penalties, and forfeitures, incurred under and by virtue thereof. And this act shall not be construed to affect any act done, right accrued, or penalty incurred under former acts, but every such right is hereby saved, and all suits and prosecutions for acts already done in violation of any former act or acts of Congress relating to the subjects embraced in this act may be commenced or proceeded with in like manner as if this act had not been passed."

This section, it was considered by the government, indicated the broad extent to which the former revenue acts had been revised by the act of 1868, so that Congress considered that penalties under them would be lost without such a saving clause.

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There was, however, nothing in the act of 1868 regulating or defining in any way the manner of proceeding in cases of forfeiture, and unless certain of the provisions of the previous acts were to be regarded as still in force, there was left apparently no guide nor statute now in force in important parts of the revenue practice. These were set forth in different sections among the first fifty-two of the act of 1864, amended by acts of 1866 and 1867. So section 3d of the act of 1867 provided certain rules under which district attorneys were to report certain things to the Commissioner of Internal Revenue. Section 4th placed under the control of the commissioner real estate acquired by the United States under the revenue laws. Section 7th authorized the commissioner to appoint detectives &c., while section 8th provided a penalty for failure to pay tax when due. No provisions were made on the subject of these sections in the late act.

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