Syllabus.

of the fact that the draw-heads would pass on a portion of this siding, and that the fact itself would not be noticed or discovered by a careful and prudent man while engaged in coupling cars on said siding, then it cannot be said that he was guilty of contributory negligence, unless it had already come to his knowledge that the draw-heads would pass."

On this point the judge stated, in his charge, that "he (the deceased) knew, as he was an experienced man, that draw-bars do slip sometimes, even upon a straight track, as it has been testified to, and the sharper the curve the greater was the danger of their slipping." In making this statement the judge was fully borne out by the testimony, and there was no evidence to contradict it.

We find no error in the judgment, and it is therefore affirmed.

MR. JUSTICE MILLER, with whom was MR. JUSTICE HARLAN, dissenting.

I dissent from this judgment, and especially the proposition that the railroad company owed no duty to its employes in regard to the sharpness of the curves of the track in the yards in which they are employed.

MR. JUSTICE HARLAN unites in this dissent.

UNITED STATES v. AUFFMORDT.

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

Argued April 26, 1887. Decided May 27, 1887.

Under § 2839 of the Revised Statutes, there can be no recovery by the United States for a forfeiture of the value of imported merchandise, the property of its foreign manufacturer, against the person to whom he had consigned it for sale on commission, and who entered it as such consignee, the forfeiture being claimed on the ground that the merchandise was entered at invoice prices lower than its actual market value at the time and place of exportation.

Section 2839 applies only to purchased goods.

Statement of the Case.

Section 2864, so far as it provides for a forfeiture of the value of merchandise, is repealed by the provisions of § 12 of the act of June 22, 1874, c. 391, 18 Stat. 188.

The amendment made to § 2864, by the act of February 18, 1875, c. 80, 18 Stat. 319, by inserting the words "or the value thereof," did not have the effect of enacting that the value of merchandise is to be forfeited under § 2864, notwithstanding the act of June 22, 1874, c. 391. The object and effect of the amendment were only to correct an error in the text of § 2864, and to make it read as it read, when 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.

THIS was an action brought by the United States, in the District Court of the United States for the Southern District of New York, against Clement A. Auffmordt, John F. Degener, William Degener, and Adolph William Von Kessler, composing the firm of C. A. Auffmordt & Co., to recover the sum of $321,519.29 with interest..

The complaint alleged violations by the defendants of statutes of the United States in respect to entries of imported merchandise made by the defendants in 1879, 1880, 1881, and 1882, the value of such merchandise being the above-named sum, and claims that by reason of the acts of the defendants alleged in the complaint the defendants have forfeited such value to the United States. The defendants put in an answer containing a general denial, and the case was tried in the District Court before a jury.

After the case was opened to the jury on the part of the United States, and before any testimony was offered, the defendants moved, upon such opening, that the court direct a verdict for the defendants, on the ground that there was no statute of the United States whereby the value of the merchandise could be recovered by reason of the acts alleged to have been committed by the defendants as consignees of the goods, which was the capacity in which they received and entered the goods, the goods being the property of the manufacturers of them in Switzerland, and being consigned to the defendants for sale on commission. The facts sought to be proved against the defendants were that they, knowingly and with intent to defraud the revenue, entered the goods at in

Argument for Plaintiff in Error.

voice prices lower than their actual market value at the time and place of exportation. The court ruled that there was no existing statute of the United States under which the plaintiff could recover upon any possible proof, and that a verdict must be directed for the defendants. 19 Fed. Rep. 893. The plaintiffs excepted to this ruling.

Mr. Solicitor General for plaintiff in error.

Two propositions are proposed to be maintained by the gov ernment in this case:

1. The merchandise for whose value suit was brought, was, under the evidence offered, subject to forfeiture.

2. As the merchandise was subject to forfeiture, the United States were entitled to recover its value without seizure of the goods.

As applicable to the first of these propositions, the following statutes are cited: § 2839, Revised Statutes, originally enacted as the 66th section of the act 2d March, 1799; so much of $ 2841 as is material, originally 8 4 of the act of 1st March, 1823; § 2845, originally § 8 of the act of March 1, 1823; § 2854, originally the first part of § 1 of the act of the 3d March, 1863; § 2864, originally part of § 1 of the act of March 3, 1863; § 12 of the act of June 22, 1874, Supplement to Revised Statutes, page 79.

The remaining question is, can the United States recover the full value of the invoice or packages without a seizure of the goods?

The rule to be applied in the construction of revenue laws involving forfeiture is stated by Justice Swayne in the case of Cliquot's Champagne, 3 Wall. 114, 145, to be as follows: "Revenue laws are not penal laws in the sense that requires them to be construed with great strictness in favor of the defendant. They are rather to be regarded as remedial in their character, and intended to prevent fraud, suppress public wrong, and promote public good. They should be so construed as to carry out the intention of the legislature in passing them and most effectually accomplish these objects." See also Taylor v. United States, 3 How. 197, 210.

Argument for Plaintiff in Error.

Sections 2839 and 2864 both expressly provide for the forfeiture of merchandise or its value. If, then, these sections, or either of them, stand as law at this time, and are applicable to the facts of this case, the value may be recovered without seizure of the merchandise. The facts of this case fully meet the requirements of both sections, unless they are rendered inapplicable under § 2839, because, as was ruled by the District Court, that section was applicable only to goods purchased.

Alfonso v. United States, 2 Story, 421, cited to support this proposition does not support it; on the contrary, the court avoided it.

Whatever the lawmakers intended at the time of the passage of § 2839, unless modified or repealed by subsequent legislation, is what the section means now. It was originally enacted in 1799. Neither at nor prior to that time had there been any legal distinction recognized between an import by a purchaser and an import by a manufacturer. The section is general in its terms and embraces "all merchandise of which entry has been made," whether entered by the foreign manufacturer or by the purchaser.

The word "cost," as distinguished from the market value or wholesale price, was first used in the act of March 1, 1823. It is only in still more recent legislation that the word "cost" is applied in the same legislation to purchasers and market value, to manufacturers and their consignees and agents. Numerous cases arose under this section and are reported, but in none of them did the distinction now sought to be set up between purchaser and manufacturer as applicable to that section obtain any recognition. Those cases extended from the United States v. Riddle, 5 Cranch, 311, to Smoltz's Case, decided at December Term, 1869, reported in 5 C. Cl. 294. As the distinction then was not made between purchaser and manufacturer until after the passage of the act of 1799, it cannot with propriety be made to relate back, and be applied to the interpretation of the section passed before it was known and recognized. It is, therefore, contended that § 2839 when originally enacted applied to purchasers and manufacturers alike, and, unless repealed, is applicable to this case. That it was not repealed

Argument for Plaintiff in Error.

up to December, 1869, is abundantly established by the following cases: Wood v. United States, 16 Pet. 342; United States v. Sixty-Seven Packages Dry Goods, 17 How. 85; United States V. Nine Cases Silk Hats, 17 How. 97; United States v. One Package Merchandise, 17 How. 98; United States v. One Case Clocks, 17 How. 99; Smoltz v. United States, 5 C. Cl. 301.

The District Court in this case ruled that § 2864 was repealed by the 12th section of the act of June 22, 1874. If this ground be well taken, both §§ 2839 and 2864 have ceased to be a part of the law of the land; if erroneous, they both still remain, and the judgment in this case should be reversed.

The only direct repealing provision found in the 12th section of the act of the 22d of June, 1874, is:

"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."

This clause shows that it was the intent of the law to repeal only so much of the former law with reference to forfeitures, as forfeited an invoice for an item or items of fradulent entry. Had the legislature intended to repeal all, they would have used different language. It cannot be conceived that they intended to repeal the whole system of laws by implication, and then expressly repealed a part of the system.

The alleged repealing section mitigated the forfeiture of prior enactments, and in lieu of the penalty of the forfeiture of the whole invoice, made the fraudulent entry a crime. No implication of a general repeal arises from this. There is no legal inconsistency between the two acts.

But it is contended the new law covers the whole subject matter of the old, and adds an offence and prescribes its penalties, and therefore is inconsistent and effects a repeal; but in this case we claim that the new law only reenacts an offence and modifies a penalty prescribed by the 19th section of the act of the 30th of August, 1842, 5 Stat. 565. The new statutory penalty or forfeiture only modifies so far as it extends, which is to cases where seizure can be made.

The present case clearly shows that the new law does not cover the whole subject matter of the old.