UNITED STATES v. 1,150½ POUNDS OF CELLULOID, 82 F. 627

LU1ÍTON, Circuit Judge; (after makiug the foregoing statement of facts), delivered the opinion of: the court.

The facts found by the district court make a case where it is sought to forfeit the goods of an owner as a result of the wrongful conduct of one Elliott, a mere trespasser, who removed the celluloid from its lawful place of storage in another country, with the purpose and intent of defrauding the revenue laws of this country by smuggling them into the United States, to the end that he might himself profit by appropriating the lawful duties thereon when thereafter directed by the owner to make a lawful importation, and intrusted with the money to pay the duties.

The owners, by the facts found below, are completely acquitted of all complicity with Elliott, and all knowledge of his purpose or conduct in respect of his fraudulent scheme. It is, nevertheless, insisted that: this merchandise is forfeited as a result of the acts and conduct of Elliott, and that the innocence of the owners is no defense.

If this celluloid has been forfeited under these circumstances, and as a consequence of the unauthorized acts of a mere trespasser, over whom the owners had no control, it must be the result of some very plain and positive provision of law by which the sins of one are to be visited upon another. Such has not: been the spirit of the revenue laws of this country prior to the customs administrative act of June 10. 1890. In the early case of U. S. v.

Cargo of Ship Favorite, 4 Cranch, 347, a forfeiture was sought of certain wine and spirits saved from a wreck, because unaccompanied with such marks and certificate as were required by (ho collection law' of 1799, and because they were removed, after being landed, by strangers to the owners, without the consent of the collector, and before duties were paid. The court held:

(1) That merchandise saved from a wreck, and landed, as a necessary means for the preservation of the goods, was not. thereby forfeited because found by the collector unaccompanied by the marks and certificates prescribed by the act of 1799.

(2) That the removal of these wrecked goods from the place where they were deposited when landed, without a permit from the collector or the payment of duties, did not subject them to forfeiture where such removal was made by strangers to the title, and without the consent or procurement of the owners. Marshall. O. J.. on this subject, said: “That the removal for which the act punishes the owner with a forfeiture of the goods must he made with Ms consent or connivance, or with that of some person employed or trusted by him.

If by private theft, or open robbery,, without any fault on his pari, Ms property should be invaded while in the custody of Hie officer of the revenue, the law cannot, be understood to punish him with the forfeiture of that property. * * * The court is of opinion that those penalties camiofc.be so applied in this case, not only because, from the whole tenor of the law. its provisions appear not to bo adapt eel .to goods saved from a vessel, under the circumstances in which the Favorite was found, but because, also, the law is not understood to forfeit the property of owners or consignees on account of the misconduct of mere strangers, over whom such owners or consignees could have no control.” ■ In U.

S. v. Eighty-Four Boxes of Sugar, 7 Pet. 453, a forfeiture was claimed- of certain boxes of sugar as liaving been entered as brown sugar, when they should hare been entered as wRite sugar, and subjected to a RigRer rate of duty. TRe court said: “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, he 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.” In Six Hundred and Fifty-One Chests of Tea v. U.

S., 1 Paine, 499, Fed. Cas. No. 12,916, it was sought to declare a forfeiture of certain chests of tea because found without the certificates of importation required by

section 43 of the collection act of 1799. It appeared that the owners were not at fault, these teas Raving been removed from a storage warehouse, where they were held under bond, without obtaining proper certificates showing duty paid, by persons not under the control of the owner, and not acting for Rim, and that the owner was guilty of no fault. Mr. Justice Thompson heard the cause on appeal to the circuit court, and decided against the forfeiture.

Among other things, the learned justice said: “I am not aware of a single instance where, by any positive provision of the revenue laws, a forfeiture is incurred, that it does not grow out of some fraud, mistake, or negligence of the party on whom the penalty has been visited.” In U. S. v. Fifty-Three Boxes of Sugar, 2 Bond, 346, Fed. Cas. No. 15,098, a forfeiture was sought of certain sugars as having been entered as of a lower grade, and subject to a lower duty, than their real quality demanded. The absence of any fraudulent intent upon the part of the owner was offered as a defense, and sustained.

The case arose under the act of March 3, 1863, § 1, which provided for a forfeiture of any goods .when the owner, consignee, or agent “shall knowingly make, or attempt to make, an entry thereof by means of any false invoice, * * * or of any invoice which should not contain a true statement of all the particulars.” The court said: “It is clearly incumbent on the government, in order to establish its right to a forfeiture, to bring the knowledge home to the parties charged with .the fraud, as the basis of a judgment of forfeiture. * * * ppe fraudulent intent must also appear, and such intent must be fairly inferable from the facts proved, and cannot rest upon mere suspicion.” In an action brought to recover a penalty accruing under the forty-fourth

section of the act of March 2, 1799, for the purchase and removal of certain empty casks, which had contained imported spirits, and from which the brands showing importation had not been removed, as required by the

section cited, the purchase and removal having been made by a clerk in the employment of defendant, the jury were instructed that if, in their opinion, the defendant had no-agency in. or knowledge of, the purchase or removal of the casks, nor any acquiescence in the illegal proceedings of the clerk, although he might be the owner, in whole or in part, of the casks, he was not liable to tbe penalties of tlie act, but tbe punishment should be visited on the offender, or the person who actually sold or removed the casks in violation of law.

Upon the motion for a new trial the court overruled the motion, and, among other things, said: “On general principles of responsibility of one for the acts of another, the defendant cannot be answerable penally, or even civilly, for ac1s not done by his direction, by his authority, with Ms knowledge, or within tlie scope of his authority. In the case of Parsons v.

Armor, 3 Pet. 428, referred to by the district attorney, it is said that ‘tlie general rule Is that a principal is hound by the acts of his agent no further than he authorizes that agent to bind him.’ It is truly added that ‘tlie extent of the power given to an agent is deducidle as well from facts as from express delegation.’ In Daley’s work on Agency (page 220): ‘Tlie responsibility of tlie master for the servant’s negligence, or unlawful acts, is limited to cases properly within the scope of his employment.’ ” U. S. v. Halberstadt, 26 Fed. Cas. 68, Gilp. 262. In U. S. v.

Two Hundred and Eight Bags of Kainit, 37 Fed. 326, a forfeiture was sought of certain merchandise which liad been felo-niously taken when afloat on shipboard, and brought ashore in contravention of the revenue law, by persons unknown to the owner, and with the intention of depriving the owner of his property. Judge1 Simonton said: “Whatever doubt may have existed on this subject, it has been removed by the act of 1874 (18 Stat. 189), which makes an actual intention to defraud an essential question in suits to enforce forfeitures under the, customs laws. Sinn v. U. S., 14 Blatchf. 550, Fed. Cas.

No. 12,906; Lewey v. U. S., 15 Blatchf. 1, Fed. Cas. No. 8,309. The question of fact which I must pass upon is ‘wliother the alleged facts were done with the actual intention to defraud the TJniied States.’ 1 Supp. Rev. St. p. 80, §16; The Purissima Concepcion, 24 Fed. 358. This means an actual intent on the part of the owner, or of some person acting under his authority, or being his agent, or under whom he derives title. U. S. v. Diamonds, 30 Fed. 364. In this case the master and stevedore of the vessel had informed the claimant that all tlie cargo was discharged.

Without the knowledge of the claimant, they concealed 208 bags of.kainit in the ship. They left claimant’s wharf and service, and then clandestinely and furtively sent the kainit ashore. Under tlie circumstances stated, the claimanis cannot be charged with the consequences of this act, so as to forfeit tlieir i>roperty.” In The Cargo Ex Lady Essex, 39 Fed. 765, a forfeiture of merchandise was sought upon the ground, among others, that the goods, had been smuggled into tbe United States.

The facts were that the schooner Victor, lumber laden, and bound from a Canadian port, arrived within the limits of the collection, district of Port Huron, and there stranded. A part of her cargo was sold to the master of the schooner Lady Essex before the Victor had been authorized to unload, and contrary to

section 2867, Rev. St. The master of the Essex, knowing that this cargo had not been properly unloaded, and the duty paid, fraudulently concealed the part purchased by him in the hold of his vessel, and proceeded to Mt. Clemens, and began to unload without reporting to the collector. Judge Brown (now Justice Brown) held that the lumber so sold the Essex and so smuggled in by the Essex was not forfeited, because tbe owner ivas not responsible for the wrongful acts of the master of either schooner.

Among other things, the learned judge said: “It is clear that goods taken and unloaded from a foreign vessel wrecked, upon the coast are not subjected to a forfeiture because landed without a per-niit. The Gertrude, 3 Story, 68, Fed. Cas. No. 5,370; Peisch v. Ware, 4 Cranch, 347; The Concord, 9 Cranch, 387; Merritt v. Merchandise, 30 Fed. 195. The stranding of the Victor made a clear ease of unavoidable accident, necessity, or stress of weather, within the meaning of this section; and the only irregularity in the proceeding was the failure to gh e notice to the customs authorities of such contingency.

No forfeiture, however, is imposed for the failure to give such notice, though it would seem, from the following section, that the vessel receiving such lumber from the stranded vessel incurs the penalty of forfeiture, and the master of such vessel a penally of treble the value of the merchandise. While it is possible that

section 2SG7 might be construed by inference to work a forfeiture of the cargo where no notice has been given of accident, necessity, or distress; still, although the statute may not be subject to the strict construction of a penal one, a forfeiture ought not to be imposed unless the language will bear no other reasonable construction. Sixty Pipes of Brandy, 10 Wheat. 421; U. S. v. Carr, 8 How. 1; U. S. v. Twenty-Four Coils of Cordage, Baldw. 502, Fed. Cas. No. 10,566. So far as a forfeiture is claimed by reason of the goods having been smuggled into the United States at Mt.

Clemens, or, in the language of the statute, having been knowingly and willfully imported into the United States, contrary to law, the case depends upon different considerations. The authorities are direct to the proposition that the forfeiture of goods for violation of the revenue laws will not be imposed unless the owner of such goods or his agent has been guilty of an infraction of such laws. Peisch v. Ware, 4 Cranch, 347; The Waterloo, Blatchf. & H. 120. Fed. Cas. No. 17,257; Six Hundred and Fifty-One Chests of Tea v. U. S., 1 Paine, 507, Fed. Cas. No. 12,916; U. S. v.

Two Hundred and Eight Bags of Kainit, 37 Fed. 326. It is clear that, if goods be stolen from the owner, or if a person has obtained possession of them fraudulently, or without authority, no act of his can forfeit them as against the true owner.

Section 16 of the act of 1874 declares, in express terms, that in cases of this description it is the duty of the judge to submit to the jury, as a separate and distinct proposition, whether the alleged acts were done with an actual intention to defraud the United States; or, if such issues be tried by the court without a jury, it shall be the duty of the court, to pass upon and decide such proposition as a distinct and separate finding of fact.

This language must api>ly to the owner of the goods, or his authorized agents, and not to a mere trespasser.” But it is argued that the decisions we have quoted were made prior to the act' of June 10, 1890, and that such changes were made by that act in the law as to result in a forfeiture without regard to the conduct of the owner, or his control over the person violating the law. For the purpose of contrasting the provisions of the act of 1874, under which were decided the two cases of U. S. v.

Two Hundred and Eight Bags of Kainit and The Cargo Ex Lady Essex, cited above, we here set out sections 12 and 16 of the act of 1874, and

section 9 of the act of June 10, 1890: Sections 12 and 16 of the act of 1874 are as follows: “Sec. 12.

That any owner, importer, consignee, agent or other person who shall, with intent to defraud the revenue, make or attempt to make, any entry of imported merchandise, by means of any fraudulent or false invoice, affidavit, letter or paper, or by means of any false statement, written or verbal, or who shall be guilty of any willful act or omission, by means whereof the United States shall be deprived of the lawful duties, or any portion thereof, accruing upon the merchandise, or any portion thereof, embraced oF referred to in such invoice, affidavit, letter, pap.er or statement, or affected by such act or omission, shall, for each offense, 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 ease or package containing the particular

article or articles of merchandise to which such fraud or alleged fraud relates; and anything contained in any act which provides for the forfeiture or confiscation- of an entire invoice in consoqiK'iu'fi of any item or items contained in the same being undervalued, be, and the same is hereby, repealed.” "Sec. K>.

Tliat in all actions, suits and proceedings in any court of the United States now pending or hereafter commenced or prosecuted to enforce or declare the forfeiture of any goods, wares or merchandise, or to recover the value thereof, or any other sum alleged to he forfeited, hy reason of any violation of the provisions of the customs-revenue laws, or any of such provisions, in which action, suit' or proceeding, an issue or issues of fact shall have been joined, it shall he the duly of ¡lie court, on tlie trial thereof, to submit to the jury as a distinct and separate' proposition, whether the alleged acts were done with an actual intention to defraud the United States, and to' require upon such proposition a special finding hy such jury; or, if such issues be tiled hy the court without a jury, it shall be the duty of the court to pass upon and decide such.proposition as a distinct and separate finding of fact; and, in such cases, unless intent to defraud shall he so found, no fine, penalty or forfeiture shall be imposed.”

Section 9 of the act of June 10, 1890, is as follows. “Thai; if any owner, importer, consignee, agent or oilier person shall make or attempt to make any entry of imported merchandise hy means of any fraudulent or false invoice, affidavit, letter, paper, or hy means of any false statement, written or verbal, or hy means of any false or fraudulent practice or appliance whatsoever, or shall he guilty of any willful act or omission by means whereof the United States shall he deprived of the lawful duties, or any portion thereof, accruing upon the merchandise, or any portion thereof, embraced or referred to in such invoice, affidavit, letter, paper or statement, or affected hy such act or omission, such merchandise, or the value thereof, to be recovered from the person making the entry, shall he forfeited, which forfeiture shall apply only to the whole of the merchandise, or the value thereof, in the case or package containing the particular

article or articles of merchandise to which such fraud or false paper or statement relates: "And such person shall, upon conviction, he fined for each offense a sum not exceeding five thousand dollars, or he imprisoned for a time not exceeding two years, or both, in the discretion of the court.” For the United States it has been very earnestly argued that the omission of the words “with intent to defraud” from the ninth

section of this act of 1890, and the repeal of the sixteenth

section of the act of 3.871, without the substitution of anything substantially the same, works a most significant change in the law, and that a forfeiture of the goods of the owner results from the doing of the acts forbidden, or the failure to do .the acts required, by any person dealing with the merchandise seized, without any regard to the complicity of the owner, or his responsibility for the conduct of the person who actually violated the law.

In other words, the contention is that the merchandise is forfeited, without any regard to the innocence of the owner, provided it appear that any person has done or attempted, to do any of the acts prohibited in respect: to the merchandise seized, or omitted to do any act. required to be done for the protection of the revenue.

The competency of the congress to impose the penalty of forfeiture upon merchandise which is unlawfully brought into this country, irrespective of the circumstances under which it: came in, or the intent with which it was brought in, or the responsibility of the owner for the acts of those bringing it in, cannot be doubted. The maxim that crime proceeds only from a criminal intent has its exceptions, and is not: of universal application. The lawmakers may declare any act criminal without respect to the motive of the doer of the act.

In respect to statutory offenses, an evil inient is not necessarily an ingredient, and the offense may be complete if such is the plain intent of the lawgiver. The cases are numerous in which these principles are recognized, and they are collected in U. S. v. Curtis, 16 Fed. 184, and in the argument of the attorney general in the case of Halsted v. State, 41 N. J. Law, 577-583. The statute under consideration is highly penal, and as such falls,within the general rule which requires a strict construction. U. S. v. Eighty-Four Boxes of Sugar, 7 Pet. 453.

We must so construe it as to carry out the obvious intention of congress; but, being penal, every case must come, not only within its letter, but within its spirit and purpose. We must have regard to the maxim, ‘'Actus non facit reum nisi mens sit rea;” and, unless it clearly and unequivocally appears that the lawmaker intended a forfeiture without regard to the conduct or intent of the owner, there can be no condemnation of the claimant’s property. The case of Reg. v. Tolson, 23 Q. B. Div. 168, is an instructive case upon this subject of criminal intent as a prerequisite to crime; and in the able work of Mr.

Sutherland upon Statutory Construction (sections 346-407) may be found an admirable consideration of the rigid rule applicable in the construction of penal statutes generally.

From the cases already cited it most clearly appears that under the act of 1874, as weli as under the collection acts antecedent, a forfeiture was never declared of the goods of an owner unless there was an actual intent upon the part of the owner, or those under whom he claimed, or his authorized agent, to defraud the. revenue; and the merchandise of an owner was not subjected to forfeiture by the acts and conduct of a mere stranger and trespasser.

From a comparison of the acts of 1874 and 1890 it is evident that under neither can there be a condemnation unless there be an attempt to make an entry by means of some fraudulent or false invoice, affidavit, letter, or paper, or some other false or fraudulent practice or appliance, or there shall be some “willful act or omission,” by means 'whereof the United States shall be deprived of the lawful duties.

Now, it is clear that under either of these acts there may be a person who has done one or all of these acts, or used one or all of these means, in resj)ect to goods not his own, and in respect to which he is a trespasser; and that his intent was, for his own private purposes, to cheat and defraud the United States. Such a person would undoubtedly be liable to the penalties of either act, for both acts contemplate and authorize a criminal proceeding, independently of a civil proceeding, for the condemnation of merchandise which has been the subject of the fraudulent acts mentioned in the law.

If the person guilty of these violations of the law be also the owner of the merchandise, he may be punished by a forfeiture of his goods in addition to punishment by fine, etc. But a proceeding for the forfeiture of the merchandise may be instituted irrespective of any criminal proceedings, for the owner of the goods may be an entirely different person from the person liable criminally. Origet v. U. S., 125 U. S. 240, 8 Sup. Ct. 846.

Undoubtedly, Elliott was a person who, on the facts found below, might have been prosecuted criminally; but, unless he v>as the owmer of the merchandise which was the subject of Ms fraudulent practice, there could have been no valid condemnation of the celluloid as a part of a judgment against him. If it be conceded that by the repeal of the sixteenth

section of the act of 1874-, and by the omission from the language of the ninth

section of the act of June 10, 1890, of the words “with intent to defraud,’’ that congress has intended to eliminate all question of the intent of the doer of the acts for which a forfeiture results, — a concession which we do not make, — how far has the government advanced its contention? That Elliott intended to defraud the United States is not debatable. If his intent would affect the claimant's title, then, even under sections 12 and 1C of the act of 1874, a case for the forfeiture of the goods of an innocent owner would be made out.

But we have already seen by the cases heretofore cited that under all the preceding collection acts, including that of 1874, there could be no forfeiture unless the owner, or some agent for whose acts he was responsible, or sonic one under whom the owner claimed, had, with intent to defraud, .done the acts prohibited, or left undone willfully some of the acts required, that there could be no forfeiture. In U. S. v. Two Hundred and Eight Bags of Kainit, 37 Fed. 326, there was no doubt of the intent with which the trespasser had made the unlawful removal of the merchandise involved in that case.

The forfeiture was defea ted because the owner had not done or authorized these acts, and could, therefore, have had no guilty intent; and the case was decided against the government because it was necessary to show an actual intent on the part of the owner, or some person acting under Ms authority, or under whom he derived title. So, in the case of The Cargo Ex Lady Essex, 39 Fed. 765, there was no doubt of the intent’of the master of the Lady Essex.

But the owner of the merchandise had not attempted to smuggle the goods into the ‘United States, nor authorized the acts of those who had made such an attempt, and therefore could have no intent, to defraud; and the language of sections 12 and 16 of the act of 1874 was construed by Judge Brown to “apply to the owner of the goods, or his authorized agent, and not to a mere trespasser.” The utmost, effect which can be claimed as a consequence of the differences between the acts of 1874 and 1890. is that the intent with which the law was violated is not an ingredient in a proceeding for a forfeiture.

That the acts made a ground for forfeiture shall be done by the owner, or some one for whom he is responsible, or under whom he derives title, is just as essential under the act of 1890 as it was under any of the preceding stalut.es.' But it is said that by the ninth

section of the act of June 10, 1890, it is provided that, if any “owner, importer, consignee, agent, or other person” do, in respect to the goods seized, any of the forbidden things, a forfeiture results, and that, if Elliott was neither the owner nor the consignee, importer, or agent, he is included in the words “other person.” These words “other person” appeared in the same connection in the twelfth

section of the act of 1874. The descriptive words preceding all describí? some person having a relation to the owner. and for whose conduct, }in respect to Ms merchandise, he may be responsible. The words “other person,” when a forfeiture of merchandise is sought, mean some one of the same general class as those described by the words with which it is associated. The rule “Noscitur a sociis” has application. Newport News & M. Val. Co. v. U. S., 22 U. S. App. 145, 148, 9 C. C. A. 579, and 61 Fed. 488; 17 Am. & Eng. Enc. Law (1st Ed.) p. 280.

We see nothing in the act of 1890 which would justify the court in holding it subject to the harsh and inequitable construction sought to be placed upon it. There is no language which indicates a purpose to so radically depart from the spirit of the former collection statutes, as to condemn the property of an innocent owner for the acts of a mere trespasser. The writ of error must be dismissed, and the judgment of the district court affirmed.