Opinion of the Court.

such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, shall, for each offence, be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited; which forfeiture shall only apply to the whole of the merchandise in the case or package containing the particular article or articles of merchandise to which said fraud or alleged fraud relates; and anything contained in any act which provides for the forfeiture or confiscation of an entire invoice in consequence of any item or items contained in the same being undervalued, be, and the same is hereby, repealed."

Assuming that the language of § 2864, declaring that the merchandise or its value shall be forfeited, would authorize a suit in personam, without a seizure of the merchandise, and also assuming that the suit for a forfeiture of the value may be brought against the owner, consignee, or agent, the question for determination is, whether the provision in § 2864, for a forfeiture of the value, is superseded by the enactment of § 12 of the act of June 22, 1874, which provides only for a forfeiture of the merchandise, and does not provide for any forfeiture of its value.

Section 13 of the act of June 22, 1874, provides that any merchandise entered by any person violating § 12, but not

Opinion of the Court.

subject to forfeiture under that section, may, while owned by him or while in his possession, "to double the amount claimed, be taken by the collector and held as security for the payment of any fine or fines incurred as aforesaid." Section 14 provides that the omission, without intent thereby to defraud the revenue, to add, on entry, to the invoice, certain specified charges, shall not be a cause of forfeiture of the goods "or of the value thereof." Section 16 provides that, in suits to enforce the forfeiture of goods, "or to recover the value thereof," no fine, penalty, or forfeiture shall be imposed unless the jury shall find that the alleged acts were done with an actual intention to defraud the United States. Section 26 repeals all acts and parts of acts inconsistent with the provisions of that act. There is not in the act any other repealing provision, except that contained in the concluding words of § 12, above quoted.

The act of June 22, 1874, was passed on the same day with the Revised Statutes, § 5595 of which declares that the Revised Statutes embrace the general and permanent statutes of the United States which were in force on the 1st day of December, 1873. Section 5601 declares that the enactment of the revision is not to affect or repeal any act of Congress passed since the 1st day of December, 1873; that all acts passed since that date are to have full effect, as if passed after the enactment of the revision; and that, so far as such acts vary from or conflict with any provision contained in the revision, they are to have effect as subsequent statutes, and as repealing any portion of the revision inconsistent therewith. The act of June 22, 1874, is, therefore, a subsequent statute to the Revised Statutes, and repeals any portion thereof which is inconsistent with such subsequent statute.

On a full review of the above-recited provisions of the act of June 22, 1874, and of its other provisions, it is apparent that, so far, at least, as the acts subject to the penalties denounced in § 2864 are concerned, they are entirely covered by the provisions of § 12 of the act of June 22, 1874. There is no act denounced by § 2864 that is not embraced, both as to person and character of act, by the provisions of § 12. The latter section adds, as a punishment for the offence, fine or

Opinion of the Court.

imprisonment, or both, and a forfeiture of the merchandise, in addition to the fine. It leaves out a forfeiture of the value of the merchandise, and forfeiture of such value is inconsistent with the terms of § 12, and is, therefore, repealed by it. The absolute forfeiture of the merchandise, provided for by § 12, is inconsistent, also, with the alternative forfeiture of the merchandise or its value, provided for by § 2864. The provisions of the two statutes cannot stand together. Norris v. Crocker, 13 How. 429, 438; United States v. Tynen, 11 Wall. 88, 92; Murdoch v. City of Memphis, 20 Wall. 590, 617; United States v. Claflin, 97 U. S. 546, 552, 553; King v. Cornell, 106 U. S. 395, 396; Pana v. Bowler, 107 U. S. 529, 538.

The considerations covered by the foregoing views are so well discussed and enforced in the opinion of the District Judge in this case that it is not deemed necessary further to enlarge upon them.

Section 2864 of the Revised Statutes, when originally enacted on the 22d of June, 1874, did not contain the words "or the value thereof" after the words "such merchandise." By the act of February 18, 1875, c. 80, 18 Stat. 319, entitled "An Act to correct errors and to supply omissions in the Revised Statutes of the United States," and which act states "that, for the purpose of correcting errors and supplying omissions in the act entitled 'An Act to revise and consolidate the statutes of the United States in force on the first day of December, Anno Domini one thousand eight hundred and seventy-three,' so as to make the same truly express such laws, the following amendments are hereby made therein," it is provided as follows: "Section two thousand eight hundred and sixty-four is amended by inserting in the last line, after the word 'merchandise,' the words 'or the value thereof.'" Section two of the act directs the Secretary of State, "if practicable, to cause this act to be printed and bound in the volume of the Revised Statutes of the United States."

It is contended for the United States that this amendment to § 2864, made by the act of February 18, 1875, can be reasonably accounted for only upon the theory that, at the date it was made, which was after the passage of the act of June

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22, 1874, c. 391, Congress regarded § 2864, as thus amended, as a valid existing law, particularly in respect to the amendment, and intended to declare that the value of the merchandise should be forfeited under § 2864, notwithstanding the passage of the act of June 22, 1874, c. 391. But we are of opinion that the amendment made by the act of February 18, 1875, did not have the effect contended for. Its sole object was to correct errors and supply omissions in the text of the Revised Statutes, as its title indicates, so as to make the same truly express the statutes in force on the 1st of December, 1873, and it made special reference to the printed volume of the Revised Statutes. It was in no respect new legislation, nor a new law enacted to take effect from the date of its passage, in such wise as to alter any enactment made since the passage of the Revised Statutes. The intention was to make § 2864 read as it ought to have read in the printed volume, in the shape in which it was in force on the 1st of December, 1873, as a part of § 1 of the act of March 3, 1863, c. 76, 12 Stat. 738. It left the act of June 22, 1874, c. 391, to have its full effect in respect to § 2864, in like manner as if the words "or the value thereof" had been contained in that section, in the printed volume of the Revised Statutes. There was a law in force on December 1, 1873, and subsequently thereto, down to June 22, 1874, authorizing a forfeiture of the value of merchandise for the causes stated in § 2864, and the fact that forfeitures of such value might have been incurred. during the intervening period between December 1, 1873, and June 22, 1874, was a sufficient reason for the correction made in § 2864.

The judgment of the Circuit Court is affirmed.

Opinion of the Court.

BENZIGER v. ROBERTSON.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Argued May 2, 1887.- Decided May 27, 1887.

Rosaries composed of beads of glass, wood, steel, bone, ivory, silver, or mother-of-pearl, each rosary having a chain and cross of metal, were, under the Revised Statutes, dutiable at 50 per cent ad valorem, under the head of "beads and bead ornaments," in Schedule M of § 2504, 2d ed., p. 473; the duty on manufactures of the articles of which the beads were composed, and on manufactures of the metal of the chain and cross, being less than 50 per cent ad valorem; and § 2499 requiring that "on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable ;" and rosaries not being an enumerated article.

THIS was an action at law to recover back duties alleged to have been illegally exacted. Judgment for defendant. Plaintiff sued out this writ of error. The case is stated in the opinion of the court.

Mr. R. D. Mussey for plaintiff in error.

Mr. Solicitor General for defendant in error submitted on his brief.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law, commenced in a court of the state of New York, and removed into the Circuit Court of the United States for the Southern District of New York, brought by the firm of Benziger Brothers against the collector of the port of New York, to recover back duties alleged to have been illegally exacted on importations made into the port of New York, in 1881, of articles which were entered as "rosaries." The duty exacted was 50 per cent ad valorem, under Schedule "M" of § 2504 of the Revised Statutes, 2d ed., p. 473, which provides for that rate of duty