The property in controversy between the United States and the claimant consists of one hundred barrels of distilled spirits. The seizure was made September 1, 1868, in the city of St. Louis. It is admitted by the written stipulation of the parties, that these spirits were manufactured by one Nimrod Johnson, in the state of Louisiana, in the months of May and June, A. D. 1868; and that the claimant, Henderson, purchased them while they were in a bonded warehouse in New Orleans, after the same had been placed there by the owner of the distillery; that the claimant paid the United States collector the taxes due thereon, and moved the same from the warehouse according to law, without knowledge on his part, at any time before seizure, of any fraud on the part of the distiller, either actual or alleged. And it is distinctly admitted by the government that the claimant is a bona fide purchaser of the property. Judgment of forfeiture is sought, not for any violation of the law by the claimant, but for the violation of it by the distiller without the knowledge of the claimant, and at a period prior to the time when the res was placed in the government warehouse, and when the government collector received from the claimant the amount of taxes due on the property.
If the government is right, the claimant loses not only the spirits, but the large amount of taxes which he paid thereon—loses these entirely, or as to one is thrown on an uncertain resort upon his vendor, and as to the other, upon the sense of justice of the government. Where it is claimed that a law works such results, against which it is almost impossible for a purchaser to guard, the intention that it should do so ought to be unmistakable.
Before proceeding to examine the several grounds of forfeiture relied on by the United States, it may be advisable to notice two. general propositions of law adverted to by counsel, and which bear upon the question to be determined.
The first is, that after the repeated decisions of the supreme court of the United States, it is to be taken as settled doctrine, that when a statute in terms denounces a forfeiture of property as penalty for violation of law, without alternative of value, or other qualifications or provisions, or language showing a different intent, the forfeiture takes place absolutely and instantaneously on the comniission of the offense; title vests in the government from that moment, and it is not within the power of the offender or former owner to defeat the forfeiture by a subsequent transfer even to a bona fide purchaser. U. S. v. Nineteen Hundred and Sixty Bags of Coffee, 8 Cranch [12 U. S.] 398; U. S. v. Grundy, 3 Cranch [7 U. S.] 338; Wood v. U. S., 16 Pet. [41 U. S.] 342; Caldwell v. U. S., S How. [49 U. S.] 366; Clifton v. U. S., 4 How. [45 U. S.] 242, 248.
Another undisputed principle of law is, tliat penalties annexed to violations of general revenue laws do not make such laws penal in the sense which requires them to be construed strictly. Nor, on the other hand, are they to be construed with an excess of liberality. But it is the duty of the court to study the whole statute, its policy, its spirit, its purpose, its language, and, giving to the words used their obvious and natural import, to read the act with these aids in such ways as will best effectuate the intention of the legislature. Legislative intention is the guide to true judicial interpretation. Taylor v. U. S., 3 How. [44 U. S.] 197, 210; Cliquot’s Champagne, 3 Wall. [70 U. S.] 114.
The way is now cleared for a consideration of the several grounds of forfeiture insisted upon by the government. We shall notice first that which is set out in the fourth count of the information, the words of which are given above. The substance of this is, that these spirits, being subject to a tax imposed by the internal revenue law, were removed from the place where distilled with intent to defraud the United States of such tax. By whom removed, or to what place removed, is not alleged in the information. But on the *307agreed statement of facts it is admitted that the spirits were “placed in a bonded warehouse at New Orleans, by the owners of the distillery at which they were made; that the claimant paid the taxes thereon,” &c. It is also admitted “that the fourth count in the information is true; but that Henderson, claimant, subsequently to the removal from the distillery, and before removal from the bonded warehouse, paid the tax on the spirits, and was a bona fide purchaser.”
Thus, the facts admitted by the parties are, that the spirits were removed by the distiller to and placed by him within the bonded warehouse of the government, and it is charged in the fourth count of the information, that the removal therein alleged. was made with intent to defraud the United States of the tax imposed by law upon such spirits. And, as noticed above, the written stipulation admits that the fourth count in the information is true.
The attorney for the United States maintains the sufficiency of this ground of forfeiture under the facts thus alleged and admitted, and relies upon section 14 of the act of July 13, 186G, which, together with the substance of section 45 of the same act, is set out in the statement of the case preceding this opinion. 14 Stat. 151.
Section 14 is general and broad enough in its terms to embrace the removal of spirits, on which there is a tax, when this is done with intent to defraud the United States of the tax, but section 45 is the one specifically relating to the removal of spirits from the place where they are distilled. By this section, the removal of “distilled spirits, from the place where the same are distilled, otherwise than into a bonded warehouse, as provided by law,” is prohibited, and is made punishable by penalties differing from those provided in section 14. It is, then, not an illegal act to remove spirits from the distillery to the bonded warehouse. It is to secure the government the tax, that they are thus allowed to be removed. How it can reasonably be predicated of a removal of spirits by the distiller into a bonded warehouse of the government, whieh is under the custody of its own officer, that it was done with intent t.o defraud the United States of the tax thereon, is not readily perceived, and is not explained in the pleadings, in the admission of facts, nor in the argument of counsel.
Without putting a strained or nice construction upon the language of the fourth count, and of the written admission respecting it, it is our opinion that the case, as made, does not fall within those contemplated by the above-mentioned section 14 of the act of July 13, I860. The removal is the overt, illegal act alleged, and this was rightful; all that is left of the count under consideration is the intent with which the removal was made. We have said above, that it is difficult to see how it could have been made to defraud the United States of the tax; and a mere intent to defraud, formed or existing in the mind of the distiller, which intention has never been executed, or attempted to be, is not made a ground of forfeiture. The only execution, or attempt to execute the unlawful intent alleged, viz: to defraud the United States of the tax on the spirits, is the removal of the spirits by the distiller to the warehouse of the United States, which removal was legal, and not an illegal act.
For these reasons, our opinion is that the spirits in controversy were not forfeited by reason of the facts set forth in the fourth count of the information, and in the written admissions of the parties.
The other grounds of forfeiture relied on by the government are those set forth in the fifth and sixth counts of the information, which allege the failure of the distiller of the spirits in question to make the entries required by law in the book prescribed by the commissioner, and to make tri-monthly reports from the said book. It is admitted that the allegations of the information in this respect are true.
By examining critically the language of the information and of the written stipulation, it will be seen to admit of doubt whether the distiller, Johnson, was guilty of the aforementioned neglects at and during the period when the spirits in controversy were distilled, or whether his neglect was before or after the distillation of these spirits; but it is clear that the neglect of the distiller in this respect existed at a time when these spirits were in his possession.
Suppose, as the government contends, that section 25 of the act of March 2, 1S67, applies to the case, and that the distiller was not in default as to entries and reports at the time the spirits in question were made, but that he made default in these respects while these spirits remained in his possession, are they forfeited by this section, which includes “all spirits made by or for him,” or is this language limited to such spirits as are made by or for him while the neglect or refusal to make the required entries or reports continues?
As the counsel for the claimant has not rested his case upon any such ground, we waive its consideration, and proceed to examine the questions made by the respective counsel, so far as it is deemed necessary to do so.
The- attorney for the government bases the claim to condemn the property as forfeited, by reason of the facts alleged in the fifth and sixth counts of the information, upon section 31 of the act of July 13, 18GG (14 Stat. 157), whieh imposes upon the distiller the duty of making the entries and tri-monthly report, and upon section 25 of the act of March 2, 1S67 (14 Stat. 4S3), which denounces the penalty of forfeiture for the *308neglect or refusal of the distiller to perform this duty. But to what the forfeiture extends, or when it is worked, are disputed questions in the case. The attorney for the claimant contends that the above-mentioned section 25, as to penalties, is repealed or superseded by section 5 of the act of March 31, 1808 (15 Stat. 5S), which was in force when these spirits were made, and by which the forfeiture is limited to spirits found on the premises, or, at most, to those owned by the fraudulent distiller, if found elsewhere.
If the act of March 31, 1868, could be considered as entirely repealing the previous act, the conclusion of the claimant’s counsel would be correct, viz: that under the act of 1868, spirits which before seizure had passed through a bonded warehouse, from the hands of the distiller into those of the bona fide purchaser, would not be forfeited for the previous frauds or acts of the manufacturer. But the law does not favor repeals by implication, particularly in revenue statutes, the provisions of which, to prevent fraud, are complicated, and enacted frequently at different times to meet special exigencies or defects in previous enactments. To operate a repeal by implication, the repugnance must be clear and positive, so as to leave no doubt as to the intent of congress. U. S. v. Sixty-seven Packages of Books, 17 How. [58 U. S.] 85, 93.
By recurring to section 5 of the act of 1S68, it will be seen that it is limited to punishing distillers for defrauding, or attempting to defraud the United States of the tax on spirits distilled by them; and to convict the distiller, or to condemn property as forfeited under this statute, an intent to defraud must exist in the mind of the distiller, and be established by evidence. Whereas, under the act of 1866, section 31, and of 1S67, section 25, an intent to defraud existing in the mind of the distiller is not made essential; if he neglect to make the entries or report required, the forfeiture in law attaches, although he may be able to show, as matter of fact, that ms neglect was innocent of any fraudulent design. The penalties in section 5 of the act of 1S6S being different from those in the former act, it is a repeal by implication, so far as it and the provisions of former acts provide for the same offense but no further. Norris v. Crocker, 13 How. [54 U. S.] 439: Sedg. St. & Const. Law, 125; Nichols v. Squire, 5 Pick. 168; State v. Whitworth, 8 Port. (Ala.) 434.
Being of opinion that the act of 1868 is not a repeal of that part of section 25 of the act of 1S67, which denounces penalties against distillers for failing to make the entries and reports required of them, it is necessary now to consider another position taken by the claimant’s counsel, viz: Admitting that section 25 of the act of 1867 is yet in force, and is the one applicable to this case, still, the spirits in controversy are not, under the agreed facts, forfeited by virtue of its provisions, because they were not found on the premises of the distiller, but in the possession of an innocent purchaser. The argument is, that the words, “found on the premises” relate to, and qualify the whole list of forfeited articles, including distilled spirits.
Upon an examination of the language of this section in the light of its legislative history adverted to in the statement of the case, and in the light of other provisions of the statutes relating to forfeitures denounced against distillers, it is our opinion that his position is substantially correct; in other words, that it was not the intention of congress to denounce an absolute and instantaneous forfeiture on the commission of the offense, of all spirits, but only those either found on the premises at the time of seizure or information given, or, if found elsewhere, still owned by the party guilty of the wrongful act or omission.
This conclusion, reached, it must be confessed, after some hesitation, and adopted with some lingering distrust of its soundness, rests full more upon the general spirit and purpose of the legislation of congress respecting the rights of third persons, than upon the particular words of section 25 of the act of 1867, if these stood alone with nothing beyond to aid in their interpretation. This conclusion is fortified by supposing congress in its legislation to have been regardful of the ordinary sense of justice, and not to have designed to make the innocent suffer for the acts of the guilty, and to visit the laches of officers of the revenue upon those guilty of no wrong and no neglect. And it is still further strengthened if we have regard alone to considerations of mere policy. Iievenue is the sole purpose of all the complicated official machinery pertaining to the manufacture of spirits. The duty levied is high, the temptation to fraud correspondingly great. Congress will be presumed to have seen, unless the contrary clearly appears, that revenue would be promoted by making it safe to buy manufactured spirits, and would be injured by legislation of a contrary character, by which a “secret taint of forfeiture is indissolubly attached to the property, so that at any time, and under any circumstances, within the limitations of law, the United States might enforce their rights against innocent purchasers.” Per Story, J., U. S. v. Nineteen Hundred and Sixty Bags of Coffee, S Cranch [12 U. S.] 398, 406.
The policy of congress to confine the forfeiture to the property of the guilty, at least not to extend it to innocent persons, may be seen by section 130 of the act of 1804 (13 Stat 306), which protects bona fide purchasers from forfeitures by frauds. The fraudulent vendor forfeits value, but the article bought bona fide and paid for cannot *309be pursued in the hands of the purchaser. So in the act of July 13, 1S06 (14 Stat. 153), if the distiller fails to pay the tax for carrying on his business (section 23). or fails to give bond, or gives a false or fraudulent notice (section 24). he forfeits only such liquors as are owned by him. or found upon the premises; which evidently means owned by him at the time of seizure or date of information given. So in section 5 of the act of March 31, 186S (15 Stat. 5S). so often mentioned, it is provided that the distiller who defrauds or attempts to defraud the United States of the tax on the spirits distilled by him. shall forfeit, among other things, “all distilled spirits and all raw materials for the production of distilled spirits found in the distillery and on the distillery premises.”
[The above judgment was reversed by the supreme court, where the cause was carried on writ of error. 14 Wall. (81 U. S.) 44.]This section, as above observed, does not repeal all prior laws inflicting penalties and forfeitures upon distillers, but repeals them only so far as they relate to the same offense. But being in pari materia with section 25 of the act of March 2. 1SG7. relied on by the district-attorney, and which governs this case, it may be properly resorted to when endeavoring to discover the meaning of that section. Under the act of 18GS. spirits, which had passed into the hands of a bona fide purchaser, and not found in the distillery building or premises, would not be liable to be condemned as forfeited. So by the act of July 20. 18G8 (15 Stat. 142, § 44), passed soon after the spirits in controversy were made and before they were seized, but which saves forfeitures already incurred (Id. 1GG, § 105), all obscurity as to extent of forfeiture is removed, and the forfeiture is in terms limited to “distilled spirits owned by such person (the offending distiller), wherever found, and all distilled spirits and personal property found in the distillery,” &c. (Id. 142, § 44); and see sections 5, 7, and 19 of same act. This legislation shows quite satisfactorily a uniform policy on the part of congress from the beginning not to extend the forfeiture to innocent third persons.
In the light of these considerations, and of this legislative policy, we may now recur to section 25 of the act of March 2. 1867, which is the one relied on by the government, and we repeat it as our opinion that, under it, a neglect or refusal by a distiller to make entries and reports as required by law, does not forfeit spirits not “found” on the premises, and not, at the time when “found,” the property of the offending distiller. It would, indeed, be strange if such a neglect or refusal, which is not necessarily fraudulent in fact, as we have before stated, should have the effect to forfeit spirits in the hands of bona fide purchasers, when by other provisions of the statutes, as, for example, that of March 31, 1868, an actual fraud, accompanied with a fraudulent intent, would not have that effect.
The judgment of the court is, that under section 25 of the act of March 2, 1867, a forfeiture eo instanti is not worked for omissions of the distiller to make the entries and reports required of him.
This view, if correct, results in affirming the judgment of the district court, and renders it unnecessary to consider the other proposition of the claimant’s counsel, which is, that if forfeiture attached to these spirits, eo instanti with the commission by Johnson, the distiller, of the offenses charged, the United States waived any right of property acquired of such forfeiture, when they accepted from Henderson, the claimant, the amount of the taxes due on these spirits, and surrendered them into his possession, he being innocent of fraud. We content ourselves with remarking, that the proposition, as stated, is of questionable correctness, for waiver would imply a power in the revenue officers which they do not possess, and perhaps, also, a knowledge of the forfeiture, which it is not shown they had, when the taxes were received from the claimant and the spirits were surrendered to him. If any proposition could be maintained, it would be the one, that in view of the peculiar provisions of the law for detecting frauds, the ample facilities it supplies its officers, its system of bonded warehouses, the government, by accepting and retaining the taxes paid to it by the claimant is es-topped to say the property all the time belonged to it by reason of a previous forfeiture of title by the vendor of the claimant. Whether the view is correct, or whether the case could be successfully distinguished from those in which the supreme court has held, under the customs revenue acts, that the forfeiture might be enforced against the property in the absence of innocent and subsequent purchasers, we pass without deciding, resting our determination of this case upon the grounds before stated.
The judgment of the district court must be affirmed. Judgment affirmed.