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Opinion of the Court.

268 U.S.

paid him only a part of what was due. Among these are accord and satisfaction or compromise of a disputed claim; ? voluntary submission of a disputed claim to an investigating board and acceptance of the amount allowed by it; ' adjustment of damages inherently unliquidated; * surrender of the instrument sued on; prior acceptance of the principal of a debt as a bar to a suit for accrued interest; o prior judgment on part of an indivisible demand.? Cases in which acquiescence by acceptance of a smaller «sum is relied upon as an affirmative defense must also be differentiated from those in which acquiescence is proved to show that the claim sued on never arose. Prominent among the cases of this character are those in which a railroad, free to decline, carried the mail after notice from the Postmaster General that payment for future services would be made at a reduced rate.8 In

* United States v. Justice, 14 Wall. 535. Compare Mason v. United States, 17 Wall. 67; Piatt's Administrator v. United States, 22 Wall. 496. In the following cases there was a receipt in full or a release. United States v. Child & Co., 12 Wall. 232; United States v. Clyde, 13 Wall. 35; Sweeny v. United States, 17 Wall. 75; Chouteau v. United States, 95 U. S. 61; Francis v. United States, 96 U. S. 354; De Arnaud v. United States, 151 U. S. 483; St. Louis, Kennett & Southeastern R. R. Co. v. United States, 267 U. S. 346. In Cairo, Truman & Southern R. R. Co. v. United States, 267 U. S. 350, the relcase was under seal.

* United States v. Adams, 7 Wall. 463, 479; United States v. Mowry, 154 U. S. 564; United States v. Morgan, 154 U. S. 565.

Baird v. United States, 96 U. S. 430; Murphy v. United States, 104 U. S. 464.

Savage v. United States, 92 U. S. 382, 388. *Stewart v. Barnes, 153 U. S. 456; Pacific Railroad v. United States, 158 U. S. 118.

'Baird v. United States, 96 U. S. 430, 432.

Eastern R. R. Co. v. United States, 129 U. S. 391; Chicago, Milwaukee & St. Paul Ry. v. United States, 198 U. S. 385; Atchison, Topeka & Santa Fe Ry. Co. v. United States, 225 U. S. 640, 650; Delaware, Lackawanna & Western R. R. Co. v. United States, 249 U. S. 385; New York, New Haven & Hartford R R. Co. v. United



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such cases the plaintiff fails, even where it appears that the reduced payment was accepted under protest, because the contract implied in fact on which it seeks to recover cannot be established. Cases involving the affirmative defense of acquiescence by acceptance of a smaller sum than was actually due must likewise be differentiated from those in which one wrongly removed from a statutory office is denied relief unless suit is instituted promptly. The latter rest upon a policy not here applicable. The cases urged upon our attention by counsel for the Government present, in the main, instances of defenses other than acquiescence.

The claim here in question was for an amount fixed by the tariff. A bill for the full sum due was presented to the appropriate officer. The deduction made by the Auditor was without warrant in law. There was no act or omission of the claimant which could conceivably have induced the making of the deduction. Nor did the claimant in any way indicate satisfaction with the reduced amount received by it. The Government did not establish the affirmative defense of acquiescence by showing merely acceptance without protest. To hold that such acceptance barred the right to recover the balance wrongly withheld was to give it an effect in judicial proceedings similar to that which it had within the executive department under the Dockery Act. See Texas & Pacific Ry. Co. v. United States, 57 Ct. Cls. 284. For such a rule there is no support either in the legislation of Congress or in the decisions of this Court. Compare Clyde States, 251 U. S. 123, 127; St. Louis S. W. Ry Co.. v. United States 262 U. S. 70. Compare United States v. Bostwick, 94 U S. 53, 67; United States v. Martin, 94 U. S. 400; Willard, Sutherland & Co. v. United States, 262 U. S. 489, 498.

Nicholas v. United States, 257 U. S. 71, 76; Norris v. United States, 257 U. S. 77; Stager v. United States, 262 U. S. 728. Compare Arant v. Lane, 249 U. S. 367; Wallace v. United States, 257 U. S. 541, 547.

Argument for Plaintiff in Error.

268 U.S.

v. United States, 13 Wall 38. The Railway was entitled to judgment for the amount wrongly deducted by the Auditor.

Affirmed in part. Reversed in part.





No. 303. Argued March 19, 1925.—Decided April 27, 1925. 1. Congress has power to prohibit the importation of opium and,

a measure reasonably calculated to aid in the enforcement of the prohibition, to make its concealment, with knowledge of

its unlawful importation, a crime. P. 183. 2. The Act of February 9, 1909, $$ 1 and 2, as amended, January

17, 1914, prohibited the importation of smoking opium after April 1, 1909, made it an offense to conceal such opium knowing it to have been imported contrary to law, and provided that possession by the defendant "shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury.” Section 3 provided that on and after July 1, 1913, all smoking opium within the United States should be presumed to have been imported after April 1, 1909, and that the burden of proof should be on the claimant or accused to rebut the presumption. Held that the presumptions thus created are reasonable and do not.contravene the due process of law and the compulsory self-incrimination clauses of the Fifth

Amendment. P. 183. Affirmed.

ERROR to a sentence upon conviction of the offense of concealing smoking opium with knowledge that it had been illegally imported.

Mr. Gerard J. Pilliod, with whom Mr. Joseph C. Breitenstein was on the brief, for plaintiff in error.

The statute rests upon the authority of Congress to restrict imports, and the jurisdiction of the court was derived accordingly. The statute denounces primarily the


Argument for Plaintiff in Error,

unlawful importation of opium and declares such importation after April, 1909, to be unlawful, except for certain purposes and under certain regulations. Up to this point the authority of Congress is unquestioned. But the legislators sought to go further. As in the Harrison Act they desired to reach the mere possession of smoking opium and fasten to such possession a penal responsibility to the Federal Government. To achieve this purpose it was necessary to infuse into “possession" a criminal element allying it with the original source of congressional authority and federal jurisdiction, and scienter was therefore employed to give to the offense a federal tinge. “Knowing the same to have been imported contrary to law” constitutes a necessary ingredient of the offense, and the duty therefore rests upon the Government to prove, first, that the opium had been in fact imported contrary to law, second, that the accused had knowledge of that fact. Such facts would generally be difficult if not impossible of proof, and the statute therefore provides a special rule of evidence to meet the exigency, and effectually relieves the prosecution of the burden and places it upon the defendant. It is not contended that a rigid rule exists derived from the common law or the principles of the Constitution which prohibits Congress frem constituting certain facts presumptive or prima facie evidence of guilt, as, for instance, the possession of narcotics under the Narcotic Act. This may well be a reasonable exercise of legislative power, though fraught with danger and to be jealously confined. The question is whether Congress has exceeded proper limits in thus creating a special rule of evidence profoundly affecting the constitutional privileges of the accused.

If crude opium or its derivative could under no circumstances be imported into the United States, the problem would be simple indeed; but crude opium may be lawfully imported, may be lawfully converted into smok

Argument for Plaintiff in Error.

268 U.S.

ing opium, and so diverted. Shall mere restriction be construed to charge the accused with scienter equally with absolute prohibition? If so, why were unlawful importation and guilty knowledge expressly made ingredients of the offense? Congress apparently contemplated the possibility that opium might be possessed which had not in fact been unlawfully imported, or which the accused did not know had been so imported. The presumption of accused's innocence therefore related to the fact of unlawful importation and his guilty knowledge thereof and the burden of proof continued with the Government until adequate evidence relating to these elements had been introduced. But no evidence was introduced and none was necessary under this statutory special rule of evidence as applied to the case and addressed to the jury in the court's charge. Possession needed to be proved, and possession only, and the presumption of innocence and its corollary responsibility, the burden of proof, were peremptorily interrupted by force of the statute, and the accused charged with guilty knowledge of unlawful importation stood before the jury condemned by the law because of possession,

Justice would require, at least in its Anglo-Saxon concept, that evidence be introduced on these subjects, and that the accused be confronted with witnesses. The benefit of salutary rules excluding inadmissible, incompetent and irrelevant testimony is denied him. The opportunity to expose falsehood and to discover malice, are forcibly withheld, for, if unlawful importation and guilty knowledge be difficult or impossible of proof by the Government, they are equally or more so by the accused, for aside from the practical difficulties surrounding the proof of origin of such opium he is forced to explain his posession to the satisfaction of the jury, which tends rather to expose him to condemnation of his personal vice, than to the consequences of a violation of a federal import law.

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