12 F. 412 -

412

FEDERAL REPORTER.

ant has it in his power to produce the best and most satisfactory evidence to repel the presumption which the law has raised against him, and he omits to do so and contents himself with the weaker evidence, the presumption "is turned against him, the highest and best evidence, going to the reality and truth of the transaction, would not be favorable to the defence." I do not deem it necessary to examine the proofs of other illicit operations in Hong Kong by the claimant, which seem to be afforded by his intercepted correspondence. I place the decision of the case on the grounds above·indicated. A decree of condemnation must be entered.

UNITED STATES

'I).

A

LOT OF SILK UMBRELLAS.-

(Circuit Court, E. D. Louisiana. 'June, 1881.)
1.

REVENUE-PENALTIES AND FOHFErfUBEs-bfPOU'f8-HEV.

ST. § 2809.

which relates to the importation of merchandise into the United States from abroad, there must be an intentional omission from the manifcst. 2. CosTs-HEASONABLE GROUND FOR SEIZUHE-REV. tiT. § 970. Under section 970 of the Revised Stat,utes, the fact that the goods seized were not on the manifest shows that there was l'cilsonahle ground for seizw'c ,anti claimant cannot recover costs.

To incur a forfeiture under section 2809 of the Hevised

1. If. Leonard, Dist. Att'y, for the United States. Alfred Shaw, for claimant. PARDEE, 'C. J. As shown by the evidence, the conduct of goverl:t ment officials seizing these libelled goods was not creditable, or calculated to 'further the true interests of the government or fqster the commerce of the port. The conduct of the officials in the examining room, in destroying the labels and marks to prevent identity of the goods, was highly reprehensible. They should have been reported and discharged. The government is not the enemy of commerce nor of importers. The forfoiture of the goods seized is asked under the provisions of section 2809, Rev. St., for not being included in the manifest. This section provides for a fine or penalty on the master equal to the value of the merchandise not included in the manifest, and the forfeiture of all such goods belonging or consigned to the master, mate, officers, or crew of such vessel. The evidence in this case is to the effect that the goods were not included in the manifest; they were
   '*'Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
   

UNITED STATES V. A LOT OF SILK UMBRELLAS.

4:13

not ship stores, nor Wllre they described in the list of stores. The goods were not of the kind, (say the umbrellas, baskets, cloak, etc.,) or of the quantity, (say shirts and opodeldoc,) suitable for ship1!t.ores. The manifest shows no passengers. There WRsno such concealment as showed an intent to smuggle. The seizure was made the same day the manifest was sworn to, and the testinony of the captain and mate, and the conduct of both, are to the effect that the omission of the goods from the manifest was an oversight. All the goods except the nmbrellas,-but one,-the opodaldoc, the shirts, and baskets, aTe' proved to have belonged and been consigMd to Henrie R Pietlduga, a merchant of this city not belonging to the vessel, and were family presents sent to him by his relatives in Genoa. These goods were under $200 in value, and might have been admitted to entry upon appraisement without invoice. Treasury Reg. § 337. The goods shown to have belonged to Piccaluga cannot be forfeited in this proceeding, as they are not covered by section 2809, Rev. St. As to the remaining goods, the question to be decided is whether the omission punished by penalty and forfeiture under section 2809, Rev. St., must be an omission complete, with intent, or may be any bare omission, whether intentional or accidental. The statement of this question seems to, suggest, the answer. Intent is necessary for any criminal or penal violation of a., prohibitory law. It is a general rule, and unless there are adjudicated cases by the United States courts to the contrary under the' revenue laws of the United States I shall so hold in this case. My attention has been called to no such cases, and I know of none. In the case of U. S. v. 84 Boxes of Sugar, where the sugar was libelled' be6ause entered for payment of duties under a false denomination, with a view to defraud the revenue, Judge McLean, organ of the supreme court, says: "The statute under which these sugars were seized and condemned is a highly penal law, and should, in conformity with the rule on the subject, be construed strictly. If, either through accident or mistake, the sugars were entered by a different denomination from what their quality required, a forfeiture is not incurred." 7 Pet. 463. The principle will apply to this case, although no direct element of fraud is charged. To be perfectly clear, what I hold is that to incur forfeitnre unner section 2809, Rev. St., there mnst be an intentional omission from the manifest. Of course, in cases under that section the usual rule would govern, 80 far as making a case for the is concerned. The gov-

414

FEDERAL REPORTER.

ernment shows the act, and from the act and Hs circumstances the intent is inferred, until nega'tived by claimants' evidence. The goods seized in this case not being on the manifest, and notwithstanding the criticisms made on the mode of seizure, I am of the opinion there was reasonable ground for seizure. See section 970, Rev. St. A judgment will, therefore, be entered in this case reversing the judgment of the district court, dismissing the libel of the United States, and ordering the restoration of the proceeds of goods merchandise seized, libelled, and sold to the claimants, but allowing claimants no costs.
See U. S. v. Thres Trunks, 8 FED. REP. 583.

(Oircuit Uourt, M. D. Alabama. May, 1882.)
THE AOT OJ!' THE LEGISLATURE OF ALABAMA. OF FEBRUARY 23, 1872, REPEALS THE ACT OJ!' FEBRUARY 8, 1866.

The tax authorized to be levied to pay the principal and interest of the 'bonded debt of the city of 8elma, and to create a sinking fund therefor, is to be in lieu of all taxes now assessed i and the act further excepts the act of 1859-60 from its operation. Hence the act of 1866, authorizing the levy of a 1 per cent. tax, is repealed. " Including one excludes all others."

Mandamus to Levy Tax. Demurrer to return. Pettus <J Dawson, for relators. Brooks £t White, for respondents. , PARDEE, C. J. It is not necessary to state nIl the facts of this case in order to make my ruling understood. It is sufficient to say that relators claim a right to the levy of the specific 1 per cent. tax, as provided by the act of the Alabama legislature, approved February 8,1866, under which act relators' bonds, now merged in judgment, were issued. The respondents, in their return, claim that the authority to levy the tax of 1 per cent. under the act of 1866, was repealed and superseded by an act of the Alabama legislature, approved February 23, 1872, entitled "An act to authorize the mayor and council of the city of Selma to establish and provide a sinking fund for the payment of the principal and interest of the bonded debt of said city,"
.Reported by Joseph P. Hornor, Esq., of the New Orleans bar.