more common case where a railroad was being operated by a receiver acting under judicial appointment. For in so far as he transports passengers and property he is a common carrier with rights and civil responsibility as such (Eddy v. Lafayette, 163 U. S. 464, 41 L. ed. 228, 16 Sup. Ct. Rep. 1082; Hutchinson, Carr. § 77). And there is no reason suggested why a receiver, operating a railroad, should not also be subject to the penal provisions of a statute prohibiting any common carrier from transporting live stock by rail from a quarantine district into another state. Erb v. Morasch, 177 U. S. 584, 44 L. ed. 897, 20 Sup. Ct. Rep. 819; United States v. Ramsey, 42 L.R.A. (N.S.) 1031, 116 C. C. A. 568, 197 Fed. 144. But it is said that the amendment, buried in the agricultural appropriation act of 1913, was unknown to the grand jury when the indictment was found, and was not construed in deciding the motion to quash. And it is contended that, inasmuch as the criminal appeals act only authorizes a review of a decision in so far as it was "based upon the . . construction of the statute upon which the indictment was founded" (34 Stat. at L. 1246, chap. 2564), the correct ruling that receivers are not within the act of 1905 ought not to be reversed because it now appears that they are within the terms of the act of 1913, which was not brought to the attention of the district judge, and was not therefore construed by him in fact. It is pointed out that while there is a general assignment that the court erred in quashing the indictment, yet the government itself specifically complains of the court's construction of the act of 1905 -not the act of 1913. And to emphasize the fact that the indictment was not founded on the amendment, attention is called to the fact that entries on the back and in the caption of the indictment described it as being for "violation of §§ 2 and 4 of the act of March 3, 1905 (33 Stat. at L. 1264, chap. 1496, U. S. Comp. Stat. Supp. 1911, p. 1351)," [235] which apply to railroad companies, and not to receivers. These entries are useful and convenient means of reference, and in case of doubt might possibly be of some assistance in determining what statute was alleged to have been violated. But these entries form no part of the indictment (Williams v. United States, 168 U. S. 389, 42 L. ed. 512, 18 Sup. Ct. Rep. 92) and neither add to nor take from the legal effect of the charge that the receivers, while operating the business of the corporation as a common carrier, transported cattle "contrary to the form of the statute in such cases made and provided." What was that statute and on what stat ute the indictment was founded was to be determined as a matter of law from the facts therein charged. There is no claim that it was quashed because of any defect in matter of pleading, and that being true, the ruling on the demurrer that "the indictment does not charge any offense for which the receivers can be held" necessarily involved a decision of the question as to whether there was any statute which punished the acts therein set out. In determining that question it was necessary that the indictment should be referred, not merely to the act mentioned in argument, but to any statute which prohibited the transportation of cattle by the persons, in the manner, and on the date charged in that indictment. For the reasons already pointed out it was a misconstruction of the act of 1913, to which the indictment was thus legally referred, to hold that receivers acting as common carriers were not within its terms. Nor can a reversal be avoided by the claim that the act of 1913, though applicable to the facts charged in the indictment, had not been construed by the court. For within the meaning of the criminal appeals act (34 Stat. at L. 1246, chap. 2564) the statute on which, as matter of law, an indictment is founded, may be misconstrued not only by misinterpreting [236] its language, but by overlooking its existence and failing to apply its provisions to an indictment which sets out facts constituting a violation of its terms. It is "a solecism to say that the decision that the acts charged are not within the statute is not based upon a construction of it." United States v. Patten, 226 U. S. 535, 57 L. ed. 338, 44 L.R.A. (N.S.) 325, 33 Sup. Ct. Rep. 141. It would, of course, be fairer to the trial judge to call his attention to the existence of the act on which the indictment was based (United States v. George, 228 U. S. 18, 57 L. ed. 714, 33 Sup. Ct. Rep. 412). Yet an indictment must set out facts, and not the law; and when he sustained the demurrer on the ground that the shipment therein stated did not constitute a crime of which the receivers could be convicted, he in legal effect held that they were not liable to prosecution if, while operating a road as common carrier, they hauled live stock from a quarantine state to another. In rendering that decision he made a ruling of the very kind which the United States was entitled to have reviewed under the provisions of the criminal appeals act (34 Stat. at L. 1246, chap. 2564). If that were not so the right of the government could in any case be defeated by entering a general order of dismissal, without referring to the stat ute which was involved, or without giving | consignees by the Tariff act of 1909. (36 Stat. the reasons on which the decision was based. at L. 93, chap. 6, U. S. Comp. Stat. Supp. The error can no more be cured by the 1911, p. 899.) The first five counts charged fact that the existence of the statute was that, in entering laces in February, 1910, not called to the attention of the court [238] and January and February, 1913, he than the receivers, on the trial before the had falsely sworn that the consular injury, could excuse themselves by proof that voices attached were the only invoices coverthey did not know of the passage of the ing the shipments, when he well knew that amendment which made it unlawful for there were others in existence. The court them to transport cattle by rail from a overruled the demurrer to these counts and quarantine state in interstate commerce. they are not involved in this case. Judgment reversed. Mr. Justice McReynolds took no part in the consideration and decision of this case. [237] UNITED STATES, Plff. in Err., V. HERMAN A. SALEN. (See S. C. Reporter's ed. 237-251.) Duties criminal prosecution statement in declaration. false The concealment by an agent consignee of imported goods of extraneous evidentiary facts not proper to be included in the invoice, account, and bill of lading attached to his declaration, but which, if brought to the attention of the collector, would have excited the latter's suspicion, and have induced him to institute a special inquiry as to the value of the merchandise mentioned in the account and invoice, is not a violation of the provisions of the act of August 5, 1909 (36 Stat. at L. 11, 95, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 899), § 28, making it a felony for an agent consignee to state falsely in his declaration that "nothing has been on my part, nor, to my knowledge, on the part of any other person, concealed or suppressed whereby the United States may be defrauded of any part of the duties lawfully due on the said goods, wares, and merchandise." The sixth count related to a declaration made by Salen on March 17, 1913, in making an entry of foreign laces covered by consular invoice No. 7893. Salen was therein charged with having fraudulently concealed from the collector the existence of certain material facts, and thereby had falsified the required statement in the sworn declara. tion "that nothing has been on my part, nor, to my knowledge, on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty due on said goods." This count sets out at great length and in narrative form certain evidentiary facts which may be thus summarized: Salen was the New York agent and pri mary consignee of Goetz, a French exporter, who, for eight years, had been shipping laces to Salen for sale and delivery to Robinson, the purchaser and ultimate consignee. When the last consignment arrived in New York, Salen presented the declaration to the collector, attaching thereto, as required by law, the bill of lading; a list or entry account of the goods; and the consular invoice No. 7893. He paid the duty assessed on the basis of the foreign values as given in the invoice, and thereupon removed the goods and delivered them to Robinson, the purchaser. This count of the indictment further charged that Salen knew that the foreign values had been falsely and fraudulently stated in the previous invoices; that such foreign values named in those invoices were uniformly greatly below the prices at which the laces were sold in the United States; that, in making the declaration as to Decided Novem- the shipment represented by consular invoice No. 7893, [239] Salen concealed the fact that it was one of the series of shipments in which Goetz and Robinson had fraudulently concealed the great and uniform discrepancy between the foreign values named in the invoices and the prices at which the lace was sold in the United States. [For other cases, see Duties, XII. e, in Digest Sup. Ct. 1908.] [No. 506.] Argued October 23, 1914. ber 30, 1914. IN IN ERROR to the District Court of the United States for the Southern District of New York to review a judgment sustaining a demurrer to an indictment for making false statements in the sworn declaration of an agent consignee of imported goods. Affirmed. Statement by Mr. Justice Lamar: Salen was indicted for making false statements in the sworn declaration required of It was charged that this concealment was the suppression of a fact by which the United States may have been defrauded of its lawful duty, for if Salen had communicated the facts, the collector would have called for a reappraisement of the laces, 235 U. S. and their undervaluation would have been | edge of prior fraudulent shipments constidisclosed. The defendant demurred on the ground that there was no positive averment that the goods were undervalued, but only an argumentative statement of facts the existence of which did not raise the legal conclusion that there was any undervaluation, and that the count failed to charge facts sufficient to constitute an offense under subsection 6 of § 28 of the act of August 5, 1909, or any other statute of the United States. The demurrer was sustained on the ground that the facts stated did not constitute an offense under the statute, and the case was then brought here by the government under the criminal appeals act. Assistant Attorney General Warren argued the cause and filed a brief for plaintiff in error: In construing the act in question, it is the duty of this court to give effect to the manifest intention of the customs law, to require of the importer the observance of a high degree of good faith toward the govern ment. United States v. Campbell, 10 Fed. 816; United States v. Leng, 18 Fed. 15; United States v. De Rivera, 73 Fed. 679; Bollinger's Champagne, 3 Wall. 560, 564, 18 L. ed. 70, 79; Cliquot's Champagne, 3 Wall. 114, 145, 18 L. ed. 116, 121; United States v. 26 Bales of Rubber, 3 Ware, 210, Fed. Cas. No. 16,570. If Salen knew certain facts which would have influenced any ordinarily reasonable man acting as collector, in investigating or ordering an investigation or appraisement or reappraisement of values, and if Salen concealed such knowledge on his part, then he certainly concealed "something" and swore falsely when he made oath that "nothing" was concealed or suppressed by him. United States v. Cargo of Sugar, 3 Sawy. 51, Fed. Cas. No. 14,722. The importer's duty of disclosure to the government is an obligation uberrima fidei, as broad as that imposed upon the insured in marine insurance. Sun Mut. Ins. Co. v. Ocean Ins. Co. 107 U. S. 485, 509, 27 L. ed. 337, 345, 1 Sup. Ct. Rep. 582; Columbia Ins. Co. v. Lawrence, 10 Pet. 507, 516, 9 L. ed. 512, 516. Information as to whether an importer had been engaged in a long line of prior revenue frauds was clearly such as would aid the appraisers in ascertaining the value of the shipment in question, as it would put them upon close scrutiny of the invoice, and other facts surrounding it. United States v. Doherty, 27 Fed. 733; United States v. One Bag of Crushed Wheat, 166 Fed. 562. tutes a suppression of "nothing" may also be tested by considering whether evidence that Salen knew of prior frauds in undervaluation would be admissible if he should be indicted for perjury in swearing to the present declaration that the invoice produced by him exhibits the actual market value, etc. United States v. Wood, 14 Pet. 430, 10 L. ed. 527; Taylor v. United States, 3 How. 197, 207, 208, 11 L. ed. 559, 563, 564. It is not necessary to allege in the indictment, or to prove, that the United States was actually defrauded of duties. It is only necessary to allege facts calculated to deprive, or of a character which might deprive, the United States of such duties. United States v. 66 Cases of Cheese, 163 Fed. 367; United States v. 20 Boxes of Cheese, 163 Fed. 369; United States v. 19 Bales of Tobacco, 112 Fed. 782; Bollinger's Champagne, 3 Wall. 560, 18 L. ed. 79. If Salen, knowing its falsity, made a statement in the present case that he had concealed nothing whereby the United States might be defrauded of any part of the duty lawfully due, he is guilty, irrespective of any further intent to defraud. United States v. Fawcett, 86 Fed. 900. Mr. Marion Erwin argued the cause, and, with Mr. Frederick M. Czaki, filed a brief for defendant in error: A disclosure of things relating to values at other times and places, not required to be disclosed by the forms prescribed,—such as the value or selling price in this countryis not within the purview of the statute, and hence cannot be made the basis of forfeiture, much less of criminal prosecution for suppression. They are not "material" to the declaration. United States v. Wood, 14 Pet. 430, 10 L. ed. 527; United States v. Auffmordt, 122 U. S. 197, 30 L. ed. 1182, 7 Sup. Ct. Rep. 1182. The suppression charged must be of some fact within the scope of the things required to be disclosed by the form of declaration prescribed, and which by fair intendment should be fairly stated in the entry and invoice. It is not enough that there should be merely an omission to state extraneous facts which might be sufficient to excite the where neither actual undervaluation or incollector's and appraiser's suspicions, and tent to undervalue the goods is charged. United States v. Doherty, 27 Fed. 731; United States v. Calhoun, 184 Fed. 504; G. Gulbenkian & Co. v. United States, 83 C. C. A. 40, 153 Fed. 858. The importer is not guilty of a criminal offense, even though the entry is based upon invoices in which the consignor has falsely Whether Salen's suppression of his knowl- and fraudulently misstated the cost or values, unless the importer knows or believes | Myers v. Veitch, L. R. 4 Q. B. 649; Rex v. that they are so false and fraudulent, and River Tone, 1 Barn. & Ad. 561. even though the use of such false entry and invoice should result in depriving the United States of a portion of its duties. United States v. 1150 Pounds of Celluloid, 27 C. C. A. 231, 54 U. S. App. 273, 82 Fed. 633; 581 Diamonds v. United States, 60 L.R.A. 595, 56 C. C. A. 122, 119 Fed. 560; United States v. Bishop, 60 C. C. A. 123, 125 Fed. 181; United States v. 99 Diamonds, 2 L.R.A. (N.S.) 185, 72 C. C. A. 9, 139 Fed. 961; United States v. 75 Bales of Tobacco, 77 C. C. A. 353, 147 Fed. 127; United States v. One Silk Rug, 86 C. C. A. 178, 158 Fed. 976. There is no averment in the indictment that the things alleged to have been suppressed were material to the declaration. This is a fatal defect, unless the materiality appears from the averments. Markham v. United States, 160 U. S. 325, 40 L. ed. 443, 16 Sup. Ct. Rep. 288. There can be no fraud without a representation, express or implied, where there is a duty or obligation imposed upon the party to speak. So much of the sixth count as charges the suppression of a "belief" in the happening of a future event is argumentative, uncer| tain, hypothetical, and duplicitous, and was properly treated by the trial court as surplusage. United States v. Carll, 105 U. S. 611, 26 L. ed. 1135, 4 Am. Crim. Rep. 246; 19 Cyc. 394. Mr. Justice Lamar, after making the foregoing statement of facts, delivered the opinion of the court: This writ of error raises the question as to whether the suppression clause in the declaration required to be made by agent consignees of imported goods (36 Stat. at L. 95, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 902) relates to the omission of matter proper to be included in the invoice and account attached, or to independent facts which, if brought to the attention of the collector, [245] would have excited his suspicion and induced him to institute a special inquiry as to the value of the merchandise Black's Law Dict.; 20 Cyc. 10; 19 Cyc. 403, mentioned in the account and invoice. 404. Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or absurd conclusion. Hawaii v. Mankichi, 190 U. S. 197, 214, 47 L. ed. 1016, 1021, 23 Sup. Ct. Rep. 787, 12 Am. Crim. Rep. 465. Words used in a statute by which they are not defined are given the same meaning as at common law. Swearingen v. United States, 161 U. S. 446-451, 40 L. ed. 765, 766, 16 Sup. Ct. Rep. 562; Keeck v. United States, 172 U. S. 434446, 43 L. ed. 505-510, 19 Sup. Ct. Rep. 254. Limiting words must be read in where omitted, to conform to the clauses in pari materia, when the scope and purpose of the whole act shows that such limitation was intended. Bend v. Hoyt, 13 Pet. 273, 10 L. ed. 159; 1 Kent, Com. 461; Lawrence v. Allen, 7 How. 793, 12 L. ed. 917; Brown v. Duchesne, 19 How. 183, 15 L. ed. 595; Atkins v. Fibre Disintegrating Co. 18 Wall. 272, 21 L. ed. 841; Pollard v. Bailey, 20 Wall. 520, 22 L. ed. 376; Petri v. Commercial Nat. Bank, 142 U. S. 644, 650, 35 L. ed. 1144, 1146, 12 Sup. Ct. Rep. 325; McKee v. United States, 164 U. S. 287–293, 41 L. ed. 437-439, 17 Sup. Ct. Rep. 92; Smith v. People, 47 N. Y. 331; Endlich, Interpretation of Statutes, § 378, p. 528; Morris v. Mellin, 6 Barn. & C. 446; Bennett v. Daniel, 10 Barn. & C. 500; Bryan v. Child, 1 Lowndes, M. & P. 429; No case directly in point has been cited; but counsel have traced the history of the clause from the act of 1799, which required only one form of declaration from all importers, through the subsequent statutes, which, like the tariff act of 1909, provide for slightly different forms, according as the entry is made by owner, manufacturer, consignee, or agent. (1 Stat. at L. 656, chap, 22; 3 Stat. at L. 730, chap. 21; 22 Stat. at L. 524, chap. 121; 26 Stat. at L. 132, chap. 407, U. S. Comp. Stat. 1901, p. 1890; 36 Stat. at L. 93, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 899.) Under the act of 1799 every importer had to attach the consular invoice and entry account and swear that he "had not in the said entry or invoice concealed or suppressed anything" whereby the government might be defrauded of its duty. This clause is still retained in the form required to be signed by owner and manufacturer. Where the goods are entered by an agent consignee he makes dec laration that "nothing has been on my part, nor, to my knowledge, on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty lawfully due on the said goods, wares, and merchandise." Much of the argument was addressed to the effect of this difference in the language in the respective forms of the several declarations. 36 Stat. at L. 93–95, chap. 6; U. S. Comp. Stat. Supp. 1911, pp. 899–902. Counsel for Salen insist that this differ ence is due to the fact that the suppression clause in the consignee's declaration was included in a sentence all the terms of which related to invoice and entry. The declaration to be signed by owner and manufacturer (36 Stat. at L. 94, 95, chap. 6, U. S. Comp. Stat. Supp. 1911, pp. 900, 902) was in two sentences, and as the last of the two contained the suppression clause, it was necessary, from a grammatical point of view, to mention invoice and account as antecedents. It is argued that the owner's statement conveyed the same meaning as was otherwise expressed in [246] the suppression clause of the consignee's declaration. On the other hand, the government contends that the difference in phraseology indicated an intent to require the consignee to disclose matters as to which no requirement was made where the goods were entered by owner or manufacturer. showing a list of the goods and their foreign value at the date of exportation]; an entry or account [prepared by the consignee, showing marks, numbers, contents, quantity, invoice value, dutiable value, and the rate of duty of the goods. Customs Regulations 217]; and also the bill of lading [prepared by the master of the vessel]. If these three papers, prepared by three different persons, have been truly and correctly made, they contain all the information needed to assess the duties. In view, therefore, of the importance of these documents, the statute makes specific provisions by which they are to be verified, and, as will appear from an analysis of the declaration (36 Stat. at L. 93, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 899), the consignee states in the first sentence 1 of the declaration: [248] "(1) That he is the consignee of Congress, of course, could have legislated the merchandise described in the annexed in the same statute so as to make a dis-entry and invoice; "(3) that they are in the state in which they were actually received by him; "(4) that he does not know or believe in the merchandise described in the annexed lading; tinction between consignor and consignee. "(2) that the invoice and bill of lading But no satisfactory reason is given why are the true and only invoice and bill of Congress should have imposed no penalty | lading; upon an owner for concealing a great and uniform difference between invoice values and selling prices, while at the same time making the agent guilty of a felony for suppressing exactly the same fact. The moral quality of the act was the same "(5) that the entry delivered to the colwhether the concealment was by owner or lector contains a just and true account of agent; the result to the government was the merchandise according to the invoices; the same, and all doubtful or ambiguous "(6) that nothing has been suppressed language in a statute covering the same by him, or, to his knowledge, on the part subject should be construed on the natural of any other person, whereby the United supposition that Congress required identity | States may be defrauded of any part of the of disclosures and provided identity of pun-duty lawfully due on the merchandise; ishment for identity of concealment. In arriving at the meaning of the clause on which this indictment is founded it may be helpful to consider the purpose of the statute, in the light of the customs regulations applicable to the entry of foreign merchandise at a domestic port. Foreign value is the basis on which ad valorem duties are imposed (36 Stat. at L. 101, subsec. 18, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 914), and Congress has made various provisions to enable collectors and appraisers to obtain information as to such foreign values. To that end it authorizes them to examine all importers or consignees under oath, so as to secure from them a statement of any facts which might shed light on the amount of duty to be paid. Any false statement made on such examination subjects them to indictment and punishment as for a felony (26 Stat. at L. 139, §§ 16, 17, chap. 407). [247] But the documents attached to the declaration are the primary source of information as to value. They consist of a consular invoice [prepared by the consignor,' "(7) that the said invoice and the declaration therein are in all respects true, and were made by the person by whom they purport to have been made; "(8) that if at any time he discovers any error in the [249] said invoice or in the account now rendered, he will immediately make the same known to the collector, . . for account of any person whomsoever for whom I am authorized to enter the same; that the said invoice and bill of lading are in the state in which they were actually received by me, and that I do not know or believe in the existence of any |