UNITED STATES V. ClGARS.
persons.! So a state statute providing that a tax of one dollar be levied uppn every aUen passenger coming by vessel from a foreign port, out of which tax the commissioners of immigration are to expend such sums as may be necessary for the execution of the state inspection laws, the balance to be paid in t () the United States treasury, is a regulation of commerce and The result of the Passenger Oases is that lJ tax demanded of the master or owner of a for every passenger is a regulation of commerce, within the. exclusive. power of congress, and, if imposed by a state statute, it is unconsti3-[ED. tutional and void.
1People v. Compagnie Generale Transatlantique,2 Snp. Ct. Rep. 87; 8. C.I0 Fed. Rep. 361; Henderson v. New York, 92 U. S. 259. 'People Y. Compalnle Generale Tran.ntJan. tlgne, II Sup. Ct. Rep. f!l; S. C. 10 Fed. ......i>.IliU. SHenderson v. New York, 92 U. 8. 259, "ul! cases critlcl18d.
CUNARD STEAM-SHIP CO.
(Uircuit Oourt, S. D. New Y<nk.
l:ieptember b, IS88.)
George De Forest Lord, for plaintiff. Elihu Root, Dist. Atty., for defendant.
BLATO:a:FORD, Justice. The questions in this case arise on a demurrer to the complaint. They are the same as those discussed and disposed of in the decision herewith made in the suit In the circuit court for the eastern district of New York, bronght against the same defendant by Edye and Volckens, ante, 135. Judgment' is ordered for the defendant, with costs.
UNITED STATES f'. SEVElfTy·SIX T:a:OUBAND ONE HUNDlUilD AND TWENTy·FIVE CIGARS. SAME
THIRTY THOUSAND CIGARS.
(Dislt.(ct (Jourt, S. D. :New Y<nk.
October S', 1883.,
FORll'EITURE - REv. BRAND..
8ection3397, Rev. St., all amended by section 16 of the act of March 1, 1879. requires that each of the items mentioned must be branded or Unpresscll- upon boxes of cigars before removal fmm thefactorl. and fQr of eithpr item required cigar/! are forfeited and may!)e slllzed in the hands of bona,jtr,i: purchasers.
1:IAlIE--NmmER OF FACTORY.'
Where boxes of cigars had Impressed upon them all the items required, hut t4at the section l'equircd the fact'JI".v the nnm.ber of.the factory was false, Dumber to'be truly stated,and for not complylu/!> thetewiUl'the cigars becam" forfeited. . .'
OF 1879. The amendment of 1879 for the first time required the statement of the factory number, and the omission of a correct statement of the factory number became, by the amendment, a new ground of forfeiture. Held, thfYl"ejore, condemnation could not be had upon this ground, upon an information based upon section 8397 only. SA:ME..,....AMENDMENT.
A jury having been waived, and the case tried by consent before the court, and no further evidence being desired to be put in by the claimant, Iteld, that the plaintiff's application to amend the information in substance by inserting a count upon the omission of the factory number under the act of 1879,should be allowed upon terms.
Forfeiture of Cigars for Violation of Rev. St. § 3397. Elihu Root, Dist. Atty., and W. W. Adams, Asst. Dist. Atty., for the United States. A. J. Dittenhoefer, for claimants. BROWN, J. The above two actions were brought for the condemseized by the revenue officers as forfeited to the govnation of ernment for the violation of section 3397 of the Revised Statutes. That section, as originally enacted, provided that "whenever any cigars are removed from any manufactory or Iilace where cigars are boxeB, ill · · or without the made, without being packed proper stamp thereon denoting the tax, or withont burning into each box with a branding iron the number of the cigars contained therem, the name of the manufacturer, and the number of the district and the state, .. · · they shall be forfeited to the United States." , By the act of March 1, 1879, § Hi, (1 Snpp. Rev. St. 44li,) the above section was amended so as to read: "Whenever any cigars are removed from any manufactory or place where cigars are made," etc., stamping, indenting, burning, or impressing into each box, in a legible and durable manner, the number of the cigars contained therein, the number of the manufactory, and the number of the diBtrict and the state, · ill · they shall be forfeited to the United States." The ciga.r,s seized were iIi. proper boxes, properly stamped, and with the words "Factory' No. 120, Dist. Fla.," and the number of cigars, legibly and durably impressed upon the boxes, and the stamps were canceled under yarious dates from July 13, 1882, to December 18, 1882. These brands wonld signify to purchasers that the cigars were Key West cigars,-a snperior brand, commanding a good price in the market. The evidence on the trial showed that there was a factory No. 120 in the Florida district, but that these cigars were not manufactured there, and never came from that factory. The bJ;and impressed upon the boxes, as respects the words "Factory No. 120," was therefore proved tobe false; and' there was no othel"place of manufacture designated on the boxes or on the stamps., There was no evidence to show where the cigars were in fact made, or from what place or factory they were originally removed, and the informatiou states that this was unknown.
tJNITED STATES V. OIGARS.
Upon these facts I am of opinion that the cigars were liable to seizure and forfeiture under the act of March 1, 1879, above referred to; not on the ground that that act, or any sections of the Revised Statutes, impose a forfeiture upon boxes of cigars for having false brands upon them, for I am in doubt whether a forfeiture on that ground is clearly declared; but because the boxes do not have impressed upon them the number of the manufactory, as expressly required by the amendment of 1879. This is not a case omitted from the language of the statute, as in French v. Foley, 11 FED. REP. 801, nor of any ambiguity in the law. The manufactory referred to is plainly the manufactory or place where the cigars are made. The reasonable construction, and the very language of the amendment" leave no possible doubt of that intention of the act. Such is its grammatical reading and meaning. .. The requirement of the amendment, therefore, is not satisfied by impressing upon the boxes the number of some factory other than that where the cigars are made. So far as respects compliance with the act, the case is the same as if there were no number of any factory impresed upon the boxes at all. The amendment plainly requires that each and all of the items specified must be impressed upon the boxes, and by its literal reading enacts a forfeiture for the omission of anyone of the required items. As these cigars must have been m(Lde somewhere, and were proved not to have been made at the factory designated, and no other was impressed upon the boxes, it follows necessarily that the boxes have not impressed on them the nrimbel' of the manufactory where the cigars were made. It is argued that the government has not proved that the cigars were not properly stamped and ·branded when removed from the factor.y where they were made, because it is possible that these cigars were afterwards changed from the original packages into the boxes in which they are now found, and upon which these brands were placed for the purpose of deceiving purchasers as respects the value of the article. The government is not called upon to meet and rebut such a hypothetical possibility. The law requires the boxes of cigars to be marked and stamped at the time and place when and where they are made and packed, and before any removal; and when cil4ars are found in boxes, with marks and stamps similar to those required by law, the presumption is that those were the marks and stamps put upon the original packages. If any· defense could be established through proof of subsequent changes, the burden of proof is upon the defendant. The case being one of clear violation of the plain meaning and intent of the statute, the cigars were forfeited to the government and liable to be seized wherever found, even in the hands of bOnajidepurchasers. Severe as the result of this law may sometimes be, no other doctrine is compatible with the enforcement of the rights of the government; and purchasers, knowing that Buch is the law, must protect
themselves, as they are always able to do, by dealing with responsible persons. U. S. v. One Thousand Nine Hundred and Sixty Bags ofCoffee, 8 Oranch, 398; Henderson's Case, 14: Wall. 44; Caldwell v. U. S. 8 How. 366; U. S. v.Fifty-six Barrels, etc., 6 Amer. Law Reg. 32, While the cigars, therefore, were rightly seized as forfeited to the government, it is· equally clear that the information in this case, as it stands, is not sufficient to support the condemnation. It contains nine counts, most of them unsustained by any proof. None of the counts are drawn under the amendment of 1879. The count which comes neal'est to the facts is the fifth, which charges that the cigars were removed without the boxes having burned into them, with a branding iron, the number of cigars contained therein, the name of the manufacturer, or the number of the district and state. This count is drawn under the section as it stood before the amendment. By the amendment the name of the manufacturer is no longer reo quired. The district and the state, as the proofs show, are branded or impressed upon the boxes, and there is no evidence that the district and the state are not correctly stated. Nothing remains in the information, therefore, to support the condemnation. The only thing in fact lacking in the brand impressed upon the boxes is the true number of the factory where the cigars were made, instead of the false number which is found upon the boxes, The information, however, contains no reference to the number of the factory, and no such statement was required by the law on which the information was drawn. After the proofs were taken, and before the final argument was had be(ore the court, application was made for leave to amend the information by inserting an additional count under the amend· ment of 1879, or amending the fifth count by referring to the omis· sion of the factory numbl'lr. .Upon the part of the defense it is urged that it is incompetent for the court to permit such an amendment, on the ground that it is an entirely new cause of action. This question has been carefnlly con· sidered in revenue cases by WILKINS, J., in the case of Tiernan's Ex'rs v. Woodruff, 5 McLean, 143, and by SHERMAN, J., in the case of U. S. v. One Hundred and Twenty-three Casks, etc.,l Abb. (U. S.) 575, in which the conclusion arrived at is that, though the amendment would introduce a new cause of action, yet if it corresponds in character with the original count, is kindred in nature, and might have been included within the original declaration, the amendment should be allowed. As the a.rticles,moreover, were rightly seized, the dismissal of the information for error in form would be no ground for restoring the goods seized to the claimant. The purposes of justice, as well as the convenience of the parties, would be promoted by an allowance of the amendment. U. S. v. Whisky, 11 Int. Rev. Rec. 109; U. S. v. Two Hundred and Six Barrels, etc., 3 Int. Rev. Rec. 123. In the present case, the amendment of 1879 introduces a new ground
E,lEISER tI. U.ldNOIS
for forfeitnre, namely, the failure to impress upon the boxes the factory number, i. e., the true factory number. It is, therefore, in a certain sense, a new and different cause of action; but in ita general nature it is entirely similar to the causes of forfeiture previously existing; it adds merely another item in the required details of marking; and the amendment should, therefore, be allowed to conform the pleadings to the facts proved; but as the 8uit could not be 8UStained upon the information upon which the parties went to trial, the amendment should not be allowed except on payment of defendant's reasonable expenses upon the trial. V. S. v. Batchelder, 9 Int. Rev.-Rec. 98. No further evidence being desired to be put in by the claimant, and, upon the facts proved at the trial, it being admitted that the claimant will be unable to make any further defense upon the .amendment of the information, judgment will thereupon be ordered for the plaintiff. The amount of defendant's costs on amendment will be fixed on the settlement of the order, of which two days' notice may be given.
'KAEISER 'D. ILLINOIS
CENT. R. Co.
October 24, 1883.)
s. D.. I()IJJa, o. D.
L'IftBRBTATE COMMEnCE-POWER TO REGULATE, WHERE VESTED-RAILROAXl T.RIFFS-How F.R GOVERNEDBVSTATE AOTS-TERMS DEFINED, ETO.
Article 1, +8, of the constitution of the United States confers upon congress the power" to regulate commerce with foreign nations and among the severalstates." This power of congress is exclusive. It follows that the act of the general assembly of Iowa, approved March 28, 1874, providing for B tari1J of maximum charges for the transportation of freight and passengers by rail· roads, in so far as it relates to through shipments over interstate lines, is un. constitutional. '
SAME-TERMS DEFINED AND PnINC1l'LES STATED.
The court, in. its opinion, laid down the follOWing propositions as settled: The transportation of merchandise from place to place by railroad IS commerce. (2) The transportation of merchandise from a place in one state to a place in another is "commerce among the states." (3) To fix or limit the charges for such transportation is to regulate commerce. (4) A statute fixing or limiting such charges for transportation from places i;o. one state to places in other states is 8 regulation of commerce among the states.-' (5) The power such commerce is veste,d by the constitution in cqngress, ,(6) This to p01Ver of congress is exclusive, at in all cases wheJ;'e the subjects over which the power is exercised are In 'their nature national, or adinit of orie uniform system or plan of regulation.'
By ali act of the general assembly of Iowa, approved March 23, 1874, a tariff of maximum charges was provided for the transportation of freight and passengers by railroad. The act, by it,s terms. applies to "all railrQad corporations organized or doing business in this state, their trus,te9s, It provides that "all